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;

10.

A Quare impedit was brought by Specot and his wife against the Bi∣shop of Exeter, and declared how A. F. was seised of the Man∣ner to which the Advowson is appendant, and presented, and devised the Mannor to his wife now one of the Plaintifs, and she after took to husband Specot, and then the Church became voyd, and they pre∣sented their▪ Clerk, and the Bishop disturbed them. The Bishop pleaded that he claims nothing but as Ordinary, and that the Church is with cure of soules, and confesseth the title of the Plaintif: And that they presented, but he alleged in bar, that he examined their Clerk, and upon the examination, Invenit eum fore schismaticum in∣veteratum, so that by the Law of holy Church he could not admit him. Whereupon the Plaintif demurred in Law.

Shuttelworth

The Plaintif ought to recover. First, I agree, that if it had been al∣leged in certain wherein he had been a Schismatick, this had been a sufficient plea to excuse him, but as this is, it is otherwise. For a Schismatick is he which divides and separates himself from the Re∣ligion and the Faith established. But this plea is insufficient for the uncertainty, and therefore in 38 H. 3. fol. 2. Fitzh. Quare imped. 124. The Earl of Arundell brought a Quare impedit, and the other sayd, that he presented one to him who was perjured for certain causes, and shewed for what, whereby he was not a person capable, and so it should be in this case; and in 12 Eliz. Dyer fol. 293. he ought to set down the disability of the Clerk, and give notice to the Patron. And allso in Dyer 9 Eliz. fol. 254. the Bishop refused the Clerk because he was a haunter of Taverns and unlawfull▪ Games, &c. Et ob••ea & diversa alia criminafuit criminosus & inhabilis, &c. And there the Plea was thought not good, because that the faults alleged were not evill in their own nature, but by the prohibition of the Law. And allso the Plea was naught, because he had not shewed what the other faults were. And the reason wherefore the Ordinary ought certain∣ly to allege what faults the Presentee hath, is, because the Patron may present another unto him, who is not infected with the same faults, and how can the Patron tell that his Clerk is disabled for such a fault, when he doth not know certainly what the fault is? Then if the Plea of the Ordinary be insufficient, whether he shall be a disturber by his evill Plea, and it seemeth that he shall; for so is the Book in 14 Hen. 7. fol. 21 b. &. 5. Hen. 7. 20.▪ Allso for another reason the Plea is not good, for it is too general for the trial; and all though that it may be sayd that it shall not be tryed by a Jury, but by the Metropolitan, as perchance it shall be, yet it is too generall; for how can he know wherein he is a Schismatick, so that he may exa∣mine him thereof? as in Ravishment of Ward, supposing that the In∣fant

holdeth of him by Knights service, it must be shewed in certain by what service: And allso in the case of Winbish the Plea was not good, because he did not shew in certain how she was heir to the o∣ther; and so I think the Plaintif ought to recover.

Walmisley

to the contrary: And it seemeth the Plaintif shall be barred; First, when a Parson is presented to the Bishop it appears fully that the exami∣nation of him appertains fully to the Bishop, as it is expressed in the Statute De Articulis Clers, de ideoneitate personae present at ae ad be∣neficium Ecclesiasticum pertinet examinatio ad judicem ecclesiasticum, & ita hactenus usitatum est, & fiat in futurum. For the cure of the Parson is the cure of the Ordinary, as it is expressed in 32 Hen. 6. He shall say to him, Accipe curam tuam, & curam meam. Then if we shall be driven to shew wherein he is a Schismatick, and I think not; for the Book of 38 Ed. 3. fol. 2. which is vouched against me, is with me; for there he shewed before what Judge he was perjured, which is very necessary; for if it be not before a Judge it is no per∣jury; but there he did not shew wherein he was perjured: Allso he sayd, that in 12 Eliz. in the Bishop of Norwich's case, the opinion of Walsh, that those things which touch the manners of the Clerk, shall be tryed by the Temporall Court, but that which toucheth the learn∣ing or sufficiency of the Clerk, shall be tryed by the Spirituall Court. And in vain it shall be to allege wherein he is a Schisma∣tick; for this Court cannot judge of it, in proof whereof he cited the Statute of 2 Hen. 8. And he defined a Schism to be Recens dissen∣tio congregationis jure aliquo, but an Heretick is he which hath a habit therein, and is invetorate; so he concluded, that Schismaticus inve∣teratus est Haereticus, & Haereticus est Schismaticus inveteratus; and he defined inveteratus to be, qui est multi & veteris usus in malitia. And if the Bishop had sayd that he was an Heretick, he should not need to shew wherein, and for that he cited the case in 9 Edw. 4. 24. Bro. Deposition 5. Where a Deposition of A. was pleaded, there he ought to shew before what Judges he was deposed, but not wherein. And what is the reason that he must shew before what Judge it was? Surely, because this Court may know to what Court to write; and allso the case in 11 Hen. 7. fol. 8. Bro. 9. of the Union of Wamborough, where it is pleaded, that concurrentibus hiis, &c. and allso he cited 8 Ed. 4. 24. where a divorce was pleaded, causa consanguinitatis pro∣ut patet in recordo, and yet well: And allso he cited the opinions of Fitzherbert and Shelley, 27 Hen. 8. 14. that an Action upon the case doth not lye at the Common Law, for calling one Heretick, be∣cause the Judges at the Common Law cannot discuss it, and he granted the cases put by Shuttelworth, that where the matter is issu∣able, there it ought to be certain, but not as this case is where it shall not be tryed by a Jury; And that which hath been sayd, that the

Archbishop cannot examine him, because he knoweth not wherein he was a Schismatick; this is not so, for the Bishop which accuseth him may inform the Archbishop, so that he may be well advised thereof, and so I think judgment shall be given against the Plaintif.

Anderson

I doubt if the Writ be wel brought in the name of the Hus∣band and Wife: For if the Husband have an Advowson in right of his Wife, and the Church become voyd, and the Husband dye, the Executors shall have the presentation;

and the Serjeant sayd that there be many Books in that point.

Anderson

I know it well, but I doubt of the Law in the case. Allso I would have you to argue if this be within the Statute of Demurrers, in 27 Eliz. For if this be not matter of substance, then it shall goe hard with the Plaintif; therefore let it be argued again another time.

Notes

• Pasch. 28 El. rot. 2091.
• Certainty.
• Schismatick.
• Perjury.
• Notice of dis∣ability certain.
• Tavern and gaming.
• Evil in it self.
• Evil forbidden.
• Disturber by evil pleading. Triall.
• Ravishment of a Ward.
• 12 H. 8. f. 6. a. f. 11.
• Coment. f. 42. b.
• Examination.
• Perjury.
• Manners, Lear∣ning, difference.
• Schism.
• Heretick.
• Deposition.
• Heretick.
• Matter issuable.
• Advowson in right of the wife.