case yates against sir John dryden and other Michaelmas term car roll in the  common plea ante page see Lord Stanley v wile Q b if the king bring a writ of  right pen error in quare hinder the proceed shall stay till trial have in writ  of right the suit abate by death of tenant after verdict ante injunction to  stay proceed after judgement affirm nisi c on a writ of error Kely Chan Cas  pale yellow Chan Harrison S Chan whenever a clear title appear upon record for  the king the court shall ex duty give judgement in his favour in quare hinder  if a special verdict find that a be not admit upon the king presentation a  contrary verdict find in a writ of right for the same church but not between  the same party shall not avoid the verdict in quare hinder error of a  judgement in the common plea in a quare hinder where the judgement be upon  verdict Yates bring a writ of error and hang the writ of error the king bring  a writ of right of advowson and by motion to the court the proceed in the writ  of error be stay until the trial in the writ of right and when the mouse be  join upon the right who have best right and thereupon special verdict give a  repeal by Elizabeth c as well as by James c but see the statute Ann c I will c  S and Geo c croak car er p after verdict one of the tenant die the question be  whether thereby the writ shall abate?And after long debate it be resolve and  adjudge that the writ shall abate in all the court afterward proceed to the  examination of the error and upon debate adjudge that it be not erroneous and  give rule that judgement shall be affirm unless cause be show the first Monday  of this term and no cause be then show rule be absolute give that judgement  shall be affirm in the interim Yates exhibit a bill in the exchequer Chamber  against the defendant in the writ of error and serve they and upon their  answer obtain a order to stay that suit that they shall not draw up the say  judgement and serve all the party and their counsel therewith and afterward  serve the prothonotaries of this court with this injunction that they shall  not enter up the judgement which the court have command to be enter up croak  car the attorneygeneral hereupon exhibit a plea which be that Margaret Gibbs  hold that advowson in coparcenary with the other two plaintiff by knight  service in capite and die seize which descend to William Gibbs her son and  heir of full age videlicet of twentyseven year and for want of his sue out  livery it belong to the king to present and demand judgement si execution the  court all hold it to be no plea especial there be no office produce find the  same the attorney and solicitor general much insist that a title appear for  the king the court ex offlcio ought to award for the king and rely upon Edward  pl Henry pl that the king shall have the right of any coparceners and n b e  that where title appear for the king a the court shall award a writ to the  bishop for the king yet all the court hold that here as it be allege there be  not any colour of plea but it ought to be reject for it be but matter in fact  especial in this writ of error the judgement be give in the common plea and  execution for damage give in the case and increase here by the statute of  Henry c which be not to be estopped or the party to be delay by such bare  surmise not be ground upon any matter of record the case be afterward argue at  the bar by Holborn for the defendant in the writ of error and pray that  judgement may be affirm for there be no colour for this plea nor any matter  confess of record by plead betwixt the party that the king have title to  present for then true it be the court ought to direct a writ to the bishop for  the king ex duty as it be in Henry by Fitzherbert Henry pl Henry pl Henry pl  per Fineux but when it do not appear upon the same record there be not in such  case any book which maintain that a writ shall be send to the bishop for the  king and whereas it be here object that the verdict in the writ of right of  advowson be a writ of the high nature shall control the verdict in the quare  hinder for there the verdict be that the say James Ellis be not admit  institute and induct ad church prediction ad praesentationem speech recently  queen elizabethae modus et form prout the defendant have allege and the  special verdict in the writ of right find that the say James Ellis be admit  institute and induct ad church prediction ex a placing before speech recently  elizabethae queen which be a more high action destroy the former verdict in  the quare hinder and therefore the judgement and execution be thereby to be  avoid as bank attorneygeneral and Herbert solicitor general affirm Holborn  answer thereto admit there have be two contrary verdict yet the first verdict  in the quare hinder and judgement thereupon ought not to be avoid unless by  error or attaint and whereas it be allege that where the say verdict in the  writ of right of advowson find good title for the king therefore the court ex  duty ought to stay the award of enter judgement upon the quare hinder and  ought to award a writ to the bishop for the king he croak car answer admit  there have be a good and absolute title find therein for the king yet be a  collateral record the court shall have no regard thereto but ought to proceed  in the judgement to the reversal or affirmance thereof in a see Geo c croak  car er p the common plea that be their commission and no other and he say as  this case now be there be no general but a special verdict find so as non  constat what it be until judgement shall be give in the writ of error that the  say judgement can now be give and therefore it can avoid the first judgement  in the quare hinder because the writ be abate by the death of one of the party  Berkley and myself be of this opinion for we have nothing to do but to reverse  or affirm the judgement especial as this case be where judgement be give and  damage and cost in the quare hinder against the defendant there and no colour  to stay execution thereof and where damage be increase by this court the say  judgement be affirm by the statute of Henry c because the writ of error be in  delay of execution and this plea be matter of fact only and demand whether  there ought to be execution there be no apparent error assign to reverse the  judgement it can be good I insist upon holland case a where it be agree that a  writ of error be but a commission to examine error and there much doubt what  thing may be assign for error and therefore be of opinion that judgement be  enter and damage and cost sign it ought to be affirm but because the attorney  and solicitor general be earnest to argue for the king the court give they  liberty to argue if they will the solicitor upon Monday November and the  attorney upon the Monday follow the attorney say that he for the king be to  argue last and that none shall argue after he but I doubt thereof at the day  appoint the attorneygeneral argue very confident that no writ ought to be  award for the plaintiff to the bishop in the writ of quare hinder but that the  court ex duty ought to award a writ to the bishop for the king first because  the verdict in the right of advowson although it be a special verdict find  express contrary to the verdict in the quare hinder and this be a action of a  high nature ought to be believe for the verdict in the quare hinder find that  I Ellis be not admit and institute upon the presentation of queen Elizabeth  and the verdict in the right of advowson find that queen Elizabeth year non to  have law praesentand present the say I Ellis who be admit and institute to the  say presentment of the queen which be express contrary to the verdict in the  quare hinder and destroy the plaintiff title for the queen have gain right  against all but he who have the true and very right and the verdict quod ad  manus our men c be better than the other who have no right and the case in  Henry pl and other book before cite be vouch again that where title appear for  the king the record be in this court although the writ be abate by death yet  there be a sufficient record to entitle the king whereof the court ought to  take notice and be put many case where by croak car reason of outlawry or  felony the court shall award the party to be in execution second he say  although the grand jury find that the queen have minus law to have  praesentationem yet forasmuch as the queen present she have gain the  possession the admission and institution of her clerk and have majus law than  he who have not any title and it appear not that the plaintiff have any title  wherefore be pray that a writ may be award for the king but afterward all the  court seriatim deliver their opinion that the plea plead be mere void be upon  a surmise and without any record show as Henry pl second that the verdict in  the writ of right be but a special verdict it do not appear if the writ have  not abate by death whether judgement shall have be for the king or for the  defendant I conceive clear judgement ought to have be give for the defendant  for the verdict be that queen Elizabeth non to have law praesentand yet  present to the advowson as in his full jure as the presentation mention it be  a void presentment for the queen be deceive in her presentment which make it  mere void as to the queen who can do no wrong and the usurpation be only in  the incumbent who procure himself to be institute and he be the wrongdoer and  against he only the quare hinder be always bring and no possession or rather  no right be a Michaelmas term Elizabeth croak car er p gain unto the queen by  such presentment by usurpation but the other justice doubt of this point but  they all resolve that there ought to be a clear title and eight appear for the  king and confess by the party in plead or otherwise full apparent for if not  the court ought not to award a writ ex duty for the king and as this case be  there be not any clear title appear for by death the writ of the right of  advowson abate and the verdict of no force and that there be no such  contrariety appear by the verdict for the second verdict if it have be in  force be no conclude record but only a evidence which may well be contradict  but it be resolve by then all although the verdict have be in force and have  be to the contrary yet be here by writ of error which be only to affirm or  reverse the judgement give in the common plea they all agree to affirm the  judgement and that there be not any error therein in the judgement of the  common plea there be a writ award to the bishop to remove the say Yates that  writ ought to be award and neither Yates nor any other who have pretence of  title after the judgement or pendent the same can hinder but that the  judgement and execution ought to pass and for the damage which be give in the  common plea and for the increase give in this court for the delay of execution  where l damage and cost be give for delay of execution by the statute Henry c  they be well give and due to the plaintiff who survive and the death of one of  the plaintiff do not alter the case whereupon judgement be affirm and writ  award to the bishop