Reports in the Court of Exchequer, beginning in the third, and ending in the ninth year of the raign of the late King James by the Honourable Richard Lane ... ; being the first collections in that court hitherto extant ; containing severall cases of informations upon intrusion, touching the King's prerogative, revenue and government, with divers incident resolutions of publique concernment in points of law ; with two exact alphabeticall tables, the one of the names of the cases, the other of the principall matters contained in this book.

Calvert against Kitchin and Parkinson Trin. 7. Jac. in the Exchequer.

IN Trespas by Calvert against Kitchin and Parkinson, upon a special verdict these points were moved and argued by the Councel at Bar, and first ••••e case in substance was, that one Parkinson was a devisee of the next avoidance of the Parsonage of D. the which Church became void by the death of the Incumbent, and after one A. and the said Parkinson Simoniacally agreed, that the said Kit∣chin should be presented by the said Parkinson to the said Church aforesaid, and that after Kitchin not knowing of this Simoniacall agreement was presented, instituted, and inducted to the Church aforesaid, and all this was after the Sta∣tute of 31. Eliz. cap. 6. and after Queen Eliz. intending, that this presentation belonging to her by reason of this presentation for Simonie, by force of this Sta∣tute of the 31. Eliz. presented one D. and before that B. was admitted, and insti∣tuted

the Queen died, and now the King presented Calvert with out any recital, or mention of the presentment made by the Queen, and without any Revocation actually made of the said first presentation, and thereupon Calvert is admitted, and instituted; and for the Tithes as Parson he b••ought Trespass. Hitchcock intended three questions as he said, but moved also other things.

• First, if a de∣visee of the next avoidance be a Patron within the intent of this Statute, of the 31. Eliz. cap 6.
• Secondly, it within the said Statute here be Simonie in the Patron, and not in the Parson, if this ought to prejudice the Parson or not.
• Thirdly, if the King ought to present by this laps after the Queen had made pre∣sentment without recalling of the former presentation, or if the presentation of the Queen ought to be adjudged a Turn: to the first matter he said, that a next avoidance is a thing devisable well enough within this Statute, for the truth is, it is not a thing of any value in the accompt of Law, and therefore it is no preju∣dice, although that the third part do not descend to the Patron, for the Common Law intends it to be of no value, and he said, that the form of conferring to a benefice, was ad ecclesiam &c.

as appears by 7. E. 3. fo. 5. and he vouched Bracton to prove, that the Patron had nothing but to provide, that the Church should be full &c. and to prove, that this is a thing devisable, he said that it was so adjudged in the Common Pleas, Mich. 33. and 34. Eliz. Rot. 2122. but admitting that here was not any Patron by reason of any devise, then if he, who presented be a disturber, and had acquired this Patronage hac vice by Vsurpati∣on, then that also is given to the King within the intent of this Statute, by rea∣son of this agreement for Simonie, and therefore he said, that if he who had but a nomination corruptly agree to make a presentation, or nomination, this nomi∣nation shall be forfeited to the King, within this Statute, as it is said in Plow∣den, in Hare and Bickleys case, he who hath the nomination, hath the effect of the Advowson: and also he observed the words of the Statute, which say, that if any person do for money &c. present any one &c. that every such persons presen∣tation shall be void, and it shall be lawful for the King to give the same benefice, for that turn &c. so that if he had title or not, yet this turn is forfeited to the King as by the Statute of 1. Jac. cap. 33. it is provided, if any goods which ought to pay subsidie, be laid on the land, the subsidie not paid &c. the same goods shall be forfeited: it hath been agreed, that if a stranger who had nothing to do with these goods, cause them to be laid upon the land, that they shall be forfeited against the owner, as it was admitted in Levison and Kirks case, in 7. Jac. and so here in respect that the true Patron suffers a Vsurper to present, and his presentee to be admitted and inducted, this turn shall be forfeited to the King, by reason of the Simonie against the rightful Patron, and he conceived, that although that the Presentee in this case, was not partie to this corrupt agreement, yet he shall be prejudiced by it, although not so prejudiced thereby, but that he may be ca∣pable to be presented again to the same benefice, but, hac vice the presentation of him is void; for as Littleton saith, the presentee ought to accept the Parsonage subject to such charges as the Patron pleaseth, who in the time of Vacation hath power to charge it, and so by his Act had made it subject to the forfeiture, and therefore the person who cometh under him shall be prejudiced, and therefore he vouch•••• the case in the 19. H. 8. fo. 12. if a stranger agree to disseise an infant to the intent to infeoffe the Infant, although that the Infant were not knowing of the Coven, yet he shall not be Remitted, because he came in under a wrong deer. To the third matter he said, that the King may revoke his presentation, and by the same reason he may present another, before his Presentee is instituted, and to prove it, he said, that a Common person may recal his Presentation before the institution &c. and he vouched the Book of the 31. E. 1. Tit. quare impedit 185. the Abbot of Leicesters case, although that Dyer citing of it, 12. Eliz. fo. 292. conceives the Book contrary, but it seems to be in reason that the Law is cleere, that a Lay person may change, although that a Spiritual person cannot, and

the reason is, because a Lay person did not know his sufficiency peradventure at the first, but a Spiritual person by intendment may inform himself thereof wel enough, and therefore he vouched 18. H. 7. and 1. H. 8. Kelloways Reports, which proves that diversity plainly as he said; then he thought by the same reason, if the King present one, and dye, or vary before institution, that here, he himself, or his successor, may present anew, and seemed to him no question, and to this pur∣pose he vouched, 12. Eliz. Dyer fo. 292. that he may repeale, and it is not of necessity that this instrument which purporteth the repeale, should be shewed to the Gardian of the Spiritualties, and by the 19. Eliz. fo. 360. in Coleshils case if it is said, that when the King hath presented, a Repeale by him ought not to be admitted after institution, see for such matters in the Book, also he vouched Dy∣er 339. Yattons case to prove that the King may repeale his presentation, by a new presentation, without mention made of the former, except that the second presentation be obtained by fraud, as there it is, and he vouched Dyer 294. Good∣mans case, and so he concluded. Damport to the contrary, there are two points,

The first is the Patron, and a stranger corruptly agree to present Kitchin, whereupon he is presented, if this shall be void against Kitchin. 2. admitting that the Queen had title to present, and she presents, and dyes before admittance, if the King may present a stranger, without mentioning the other presentation to be repealed. As to the first, he said that at the common Law, so if one be simoniacal∣ly presented, yet this is not void untill the Presentee be deprived, and if before this Statute, such a corrupt presentment had been made, the incumbent and or∣dinary being free, then no presentment should ensue, and he vouched the saying of Linwood an Author of the Civill Law to be accordingly, but if money be gi∣ven by the friends of the Presentee, and after the King had notice thereof and as∣sent, then it is not punishable, but pardonable at the discretion of the King, and now by him the Statute provides no punishment for the person, when the Patron only consents to the Simonie, for he observed that after the said Statute of 31. Eliz. had appointed a punishment for the Patron then in the last part of this branch the words are, the persons so corruptly taking, &c. shall be incapable of the Bene∣fice aforesaid, and so it seemeth, that the intent of the Statute is not to punish any party, but he that is to the Simonie, and this is also explained to be so, by other Clauses in the Statute, for another Clause inflicts punishment upon him who is party to a corrupt resignation, and so in all the clause, those only who are partakers of the Crime shall be punished, and to prove that such comstruction hath been made upon penall Statutes, that he only shall be punished, who had notice of the crime, he vouched Littleton who saith, that upon the Statute of Gloucester notice was requisite, or otherwise no default, also he vouched to this purpose the case of Pickering in 12. Eliz. Dyer fo. 292. a Lay Person presents a Bastard to a Benefice, who was admitted accordingly, &c. and in a suite thereupon, issue was admitted to be taken, if the Patron knew that he was a Bastard, so if he had no notice thereof, then there is no default in him, and he vouched 43. E. 3. to this pur∣pose, & 22. E. 4. tit. consultation, and he well agreed. Closse and Pomcoyes case now lately adjudged, which was, that Sir George Cary being seised of a•• Advow∣son, granted the next avoidance to his second sonne, and dyed, and after the Sonne, corruptly agreed with I. S. to procure the said I. S. to be presented to this Bene∣fice, and the second brother knowing thereof, it was agreed, that for the perfecting of the agreement, the second Brother should surrender his Grant and interest to the elder brother, which elder brother not knowing of the said corrupt agreement, pre∣sented the said I. S. who was instituted, &c. all shall be void, for he is presented here by reason of this corrupt agreement between the Patron who then was, and the parson, and the elder Brother was only used to convey a bad gift by a good hand, and all had reference to the corrupt agreement, with the assent of the Pa∣tron who then was, but here in our case was no agreement assented unto by

the Parson, and this diversity also seems to be good, that if A. hath the presenta∣tion, and B. the nomination to a Benefice, and the Presentor upon a corrupt a∣greement, makes a presentation unknown to the Nominator, here the Nominator shall not be pre••udiced within this statute. As to the second matter it seemes, that by the demise of the Queen this presentation is not countermanded or repealed in Law, and therefore he said that he would agree, that if the Qeen had made such an Act which was only a bare Authority without interest, this will determine by her death, as it was ruled for a Letter of Atturney to execute livery of Dutchy Lands, for this is a bare Authority, and is a means to do a thing to her prejudice, and he agreed that by implication or without cause a common person could not vary from his presentation, as if a Feme sole present, and intermarry, this is not controul∣ed by her marriage, for it is a thing which is not to her prejudice, and he vouch∣ed Cook lib. 4. Forse and Hemlins case, and one Marke Ogles case, proveth that the death of a Common Patron is no revocation of his presentation, for if a man present, and dye, if it be a disturbance, his Executors may have a Quare impe∣dit, and much more in the case of the King who dyeth, but he well agreed, that the King might have repealed his presentation, and after have resumed it again, which proveth that it is not a meere Authority, but mixt with an interest, for an Authority revoked cannot be revived, but without Actuall repealing it is not to be avoided, and therefore he vouched Sir Thomas Wrothes case in Plowden fo. 457. That if the King grant to one licence to purchase Land, in respect that by a means this doth acquire an interest to a party, this doth not determine by the demise of the King, although the Grant be not for the King and his Successors; so here this presentation is a meanes to give an interest to the Party, and therefore is not de∣termined by the Demise of the King, and he vouched 1. Ma. Dyer fol. 92. and so if it be a Licence dispensative, this is not determined by her death, and he vouched 3. E. 3. fo. 29. cited in Sir Thomas Wrothes case, see more after.