Reports of that learned and judicious clerk J. Gouldsborough, Esq. sometimes one of the protonotaries of the court of common pleas.: Or his collection of choice cases, and matters, agitated in all the courts at Westminster, in the latter yeares of the reign of Queen Elizabeth. With learned arguments at the barr, and on the bench, and the grave resolutions, and judgements, thereupon, of the Chief Justices, Anderson, and Popham, and the rest of the judges of those times. Never before published, and now printed by his original copy. With short notes in the margent, of the chief matters therein contained, with the yeare, terme, and number roll, of many of the cases. And two exact tables, viz. A briefer, of the names of the severall cases, with the nature of the actions on which they are founded, and a larger, of all the remarkable things contained in the whole book. By W. S. of the Inner Temple, Esq;

9.

GAwdy the Queens Serjeant rehearsed the case of Beverley in this manner;* 1.1 Thomas Beverley brought a Quare impedit against the Ordinary, and Gabriell Cornewell the Incumbent, which was in, of the presentation of the Queen; and upon pleading, there was a Demurrer entred up, and before that was discussed, Beverley was Outlawed at the suit of another,* 1.2 in an Action of Debt; then Corn∣well resigned his Benefice, and the Queen presented him again, where∣upon he was instituted and inducted; Then Beverley brought a Writ of Error in the Kings-bench, and reversed the Outlary, because that he was named of Hamby, where there were two Towns of the same name, and neither of them without an addition, and now he brought a Scire facias to execute his first judgement against Corn∣well, who pleaded all the matter in bar, and it seemed to him that the Plaintif shall be barred; for by the Outlary of the Plaintif, the presentation was forfeited to the Queen, allthough that it was but a thing in action, and thereupon he cited 2 Hen. 5. where a man had a Patronage with his Wife,* 1.3 and was Outlawed, &c. then, if by the reversall of the Outlary, he shall be restored to the presentation; and he sayd that he shall not, for that it was a thing once lawfully exe∣cuted, and vested in the Queen, and he cited 4 Hen. 7. where a man is attainted by Act of Parliament, &c. Allso the opinion of Brian there, is a strong proof of this case. And further he sayd, that he was of counsell with a case in 26 Eliz.* 1.4 where Debt was brought by Hanmer against Luddington, and the Defendant was condemned, and a Fieri facias issued to the Sherif, who by virtue thereof sold a term

of the Defendants, and levyed the money thereupon, and afterward the Defendant brought a Writ of Error, and refused the Judgement, the question was if he shall be restored to his term; and it was ad∣judged, that he shall not, but onely to the money for which it was fold, because the sale was once good, and so he thought that the Plaintif ought to be barred.

VValmisley

to the contrary: For in our case,* 1.5 when the Queen presenteth, she hath gained a Patronage to her self, untill we recover it again, and this is the case of Ratcliffe, in 35. For so long as the Incumbent which is presented continueth by that Induction in possession, so long he which presented him is Patron,* 1.6 per Collow, in 20 Ed. 4. and by 46 Edw. 3. tit. Incumbent. & 19 Ed. 3. tit. Quare impedit. If the King bring a Quare impedit, and hath title to recover, yet the other is Patron untill his Clerk be re∣moved, a fortiore where the Writ is brought against the Incumbent of the King, he is Patron untill he be removed, then if nothing shall be forfeit to the Queen, then it is to be considered, because the Queen hath presented the same Defendant of new, whether he shall be removed or no,* 1.7 and it seemeth clearly that he shall, because he claimeth under this estate, and this is done hanging the Writ; and no act done hanging the Writ shall extort the Plaintif from his ex∣ecution, and surely the Writ is hanging untill execution be done; and he cited 31 Hen. 6.* 1.8 If one make an Attorney, he shall be Attor∣ney untill execution be done; and 21 Hen. 7. if the Defendant re∣sign, and a stranger is presented, hanging the Writ, yet the Plaintif shall remove the stranger,* 1.9 and 20 Eliz. in Dyer accordeth with that, notwithstanding that some there held the contrary:* 1.10 And to the like purpose is the case in 11 Hen. 4. of traverse of an Office. Then for the Outlary that was avoydable by Plea,* 1.11 by the Statute of 2 Hen. 5. per the Books, in 22 Hen. 6. and 38 Hen. 6. Then if by the Outlary reversed he shall be restored, and it seemeth that he shall; for a man shall see a great difference between this case and the cases put: For if a man in an Action deny his Deed, and therefore pay a Fine to the King, if after he reverse the Judgement, yet he shall not be restored to the Fine, because it is a by-thing, and a thing collaterall, and therefore he denyed the opinion of Brian,* 1.12 in 4 Hen. 7. for it cannot be Law: But if a man be indebted to me, and after I am Outlawed, and then the King releaseth this debt,* 1.13 and then I bring a Writ of Error, and reverse this Outlary, I shall be restored to my action a∣gain. And here he hath shewen to us a peece of cunning; for when he pleads the Outlary in us, he hath pleaded the Record specially, for otherwise we would have sayd,* 1.14 nul tiel record, and then it being reversed it should have been certified for us, as there is a case in Dyer. Then here, allthough that be in by a new presentation, yet all the words of our Writ are true in this Scire facias; but I grant that Exe∣cutors

shall have a Qnare impedit for a disturbance done to their Te∣stator.* 1.15

Anderson

The case in Dyer is thus reported, That I when I was the Queens Serjeant, and Gerrard now Master of the Rolls, then being Attorney of the Queen, were of opinion that the Clerk of another shall not be removed, and concerning that matter, I held then, as I doe still, that in some cases the Clerk shall not be removed, and in some cases he shall; for if he come in under the title of the Plaintif,* 1.16 and since the same, then he shall be removed, but if he come in by title Paramont he shall not be removed; and here, for that this is done hanging the Writ, it seemeth that he shall be removed: For if a man bring a Praecipe, and hanging the Writ the Tenant alien, yet the recovery is good against him,* 1.17 and shall allso bind every one under him.

Peryam

That point is clear enough, but the question is if by the Outlary the Plaintif hath forfeited his presentation to the Queen? For if it be so, then this is a new title for the Queen.

An∣derson

What reason is there in that? when it was an apparent practise of the Defendant to resign; for otherwise she could not have presented,* 1.18 the Church being full before.

Peryam

The practise is not good without doubt, but what is the Law?

Anderson

The Law is, that the Defendant by his resignation, shall never extort the Plaintif from his execution.

Peryam

The point is if by the Out∣lary the Queen have a new title, by reason of the Plaintif, and I doubt much thereof, if by the judgement she shall have the presenta∣tion.

Anderson

I am resolved that there is not any colour in the case, but what say you?

Rodes

Truly I hold that the Plaintif shall remove the Clerk.

Windham

And in my opinion it is clear e∣nough, that by the reversall of the Outlary the Plaintif shall have his presentation.* 1.19

Anderson

Then let Judgement be entred for the Plaintif.

Peryam

In the name of God, if you be agreed against me.

Notes

• * 1.1

  Utlary.
• * 1.2

  The Case.
• * 1.3

  Patronage in right of his wife.
• * 1.4

  Restitution af∣ter a Scire fa••••
• * 1.5

  Patronage.
• * 1.6

  Possession.
• * 1.7

  Acts done hanging the Writ.
• * 1.8

  Attorney.
• * 1.9

  Presentment.
• * 1.10

  If he come in by title, by mony:
• * 1.11

  Plea by the Statute.
• * 1.12

  Collateral thing
• * 1.13

  Release of▪ the King of the debt of one outlawed.
• * 1.14

  Speciall plead∣ing.
• * 1.15

  Executors shal have a Quare impedit.
• * 1.16

  Title peramont.
• * 1.17

  Tenant in a Praecipe aliens.
• * 1.18

  Plenarty.
• * 1.19

  Reversal.