coke b boswel case mich James in the king bench at the commonlaw before stat  west if one have present to a church which do belong to another and his clerk  have be admit and institute present thereby the rightful patron be out of  possession and the usurper have gain the inheritance of the advowson by wrong  and the lawful patron have lose the presentment here vice for ever without any  regard to infancy coverture or any such like disability in the patron but at  the commonlaw if one have usurp on the king and his presentee have be admit  institute and induct yet the king may have a quare hinder and thereby remove  the incumbent but if a bishop collate without title to a church presentable  and his clerk be induct yet it do not put the rightful patron out of session  but his presentee ought to be receive without any process of law but P16nart  at commonlaw do put he who have right to collate to his writ of right if  tenant for year or guardian bring a quare hinder and the defendant have a writ  to the bishop against the termor or guardian and his presentee be admit  institute and induct yet the tenant of the freehold be not put out of  possession by the stat west these three point be inquirable if the church be  full or void if full of who presentment and last the inquiry of the value of  the church but in a quare hinder or assize of darrein presentment these point  be not inquirable ex duty at commonlaw and at commonlaw before the stat the  patron do not recover damage in a quare hinder all the count of the king in  quare hinder be to his damage yet he shall recover no damage either by stat  west or by the commonlaw by the commonlaw if a disturber be defendant present  pen the writ and his clerk be admit institute and induct and afterward  judgement be give against the defendant such clerk shall be remove so in all  case where any clerk come in pen the writ by the presentment of one against  who the plaintiff have good title his clerk shall be remove otherwise where  the stranger have good right No incumbent shall be remove by the stat west by  quare hinder of assize of darrein presentment purchase within six month unless  the incumbent be name in the writ the metropolitan shall never present by  lapse but when the inferior ordinary may have collate by lapse and surcease  his time upon recovery in quare hinder where it be find that the church be  full of the presentment of a stranger pen the writ and it do not appear  whether the incumbent come in by better title than the plaintiff have the  plaintiff be entitle to a writ to the bishop general and the bishop must  execute it and can return that the church be full of another SC Cro James jenk  cent Vid the entry   Ent nu Anthony low bring a quare hinder of the church of  Wimbish against Richard bishop of London and John Lancaster and count that  Henry earl of Sussex be seize in fee of the manor of Wimbish to which the say  church be appendant who present John Lancaster one of the defendant who be  admit institute and induct and afterward the say earl die seize after who  death the manor to which c descend to Robert now earl of Sussex who levy a  fine of the say coke report a er p advowson to Edward Hamond in fee who grant  the next avoidance to Anthony low the plaintiff and afterward the say John  Lancaster resign to the say Richard bishop of London the other of the  defendant whereby the church become void by the say resignation and so it do  belong to the plaintiff to present and the defendant do disturb he the bishop  plead quod ipse nothing to have nec to have proclaim in church predict nisi  admission institutianem leading or bringing in a mask c petit judgment si  without not general hindrance c John Lancaster the other defendant plead that  before the writ purchase he be in the say church by the space of six month of  the presentment of the say Henry earl of Sussex without hoc that the church be  void modus form as the plaintiff have declare as to the plea of the ordinary  the plaintiff pray a writ to the bishop against he et to go away send to be  remiss execution until what time the plea between the plaintiff and the other  defendant be determine as to the plea of Lancaster the plaintiff do maintain  that the church be void modus et form c on which they be at issue and at nisi  prius it be find for the plaintiff and far the jury do inquire of the three  ordinary point si church plene sit coke a si such ex casus prsentatione the  yearly value of the church si time halfyearly to go over after the avoidance  as to the first they find that the church be full of Laurence boswel ex  prsentatione a house Elizabeth Regin England pendent shorten de quare hinder  as to the second that the church be of the yearly value of as to the three  that the action be bring within six month after the avoidance on which verdict  judgement be give in this manner therefore to look at closely be quod prd  Antonius recupere versus prfat Johan Lancaster prsentationem svan ad church  predict queen modus full step forth de prfato Laurentio Boswell ex  prsentatione dict recently Regin Elizabeth pendent prd breve de quare hinder  inter Self Anthonium prfat johan financial loss svan ad valor church e prd per  dimid striving queen I n see moisten ad per jurator prd in form prd assess to  have breve prf bishop London that ordinary quod non to stand before cry out in  protest at svan or cry out in protest at prdJoh Laur seu the dawn of one  another although idem Laurentius ad church prd pendent breve predict admission  custom in eaden lead in to step out the same laurentium ab ecclesida predict  removea ac ad church that ad presentation Self Anthonii idon mask to send to  et prd johan in pity and on this judgement a writ of error be bring and  diverse error assign and now this term after many argument at the bar and  bench these point be resolve per totan cur that at the commonlaw before the  stat of west cap if one common person have present to a church which do belong  to another common person and his clerk have be admit and institute in which  case in the case of a common person the church be full present thereby the  rightful patron be out of possession and the usurper have earn the inheritance  of the advowson by wrong and the lawful patron have lose the presentment here  vice for ever for he have no other remedy but a writ of right of advowson in  which the inheritance of the advowson shall be recover but the incumbent shall  not be remove and that be the reason why full or not full shall be try by the  bishop because the church be full by institution which be a spiritual act for  if it shall not be full till induction then full or not full shall be try by  the verdict of twelve man accord to the commonlaw for induction be a thing  notorious and shall not be try by the bishop vide h c and yet in some case a  jury shall inquire of the plenarty as in this case and in all quare impedits  one of the three point inquirable be if the church be full or not and at the  commonlaw as well infant as feme covert be put to their writ of coke b right  in the same case and there be two reason at the commonlaw in the say case that  he who come in by admission and institution come in by a judicial act and the  law presume that the bishop who have the cure of the soul of all within his  diocese for which he shall answer at his fearful and final account in respect  of which he ought to keep and defend they against all heretic and schismatic  and other minister of the devil will not do or assent to any wrong to be do to  their patronage which be of their earthly possession but if the church be  litigious that he will inform himself of the truth by a jure patronatus and so  do right Inst c   light a b roll side Wilson c hob Inst another reason be that  by the coke report a er p commonlaw in every parish there ought to be fit mask  for so it appear by the word of the quare hinder quod to let pass prsentare  fit mask c which epithet fit include ability in learning and doctrine honesty  in conversation and diligence in his function and all that to instruct the  people of God in true religion and good conversation and to avoid contention  and to the intent that he who have so great a charge may effectual and  peaceable attend his charge the commonlaw do provide that after institution he  shall not be subject to action and so neglect his duty in lose his time in  suit and trouble in law and that be the reason of the commonlaw that after  institution into the church at the presentation of another although he have no  right that the incumbent shall not be remove at the suit of any common person  but to recover his right he may have a writ of right of advowson by which the  incumbent shall not be remove and it be to be observe in these case forasmuch  as the final intent of the law be to have fit mask and that no profit may by  any mean arise to the patron for that will be detestable simony the commonlaw  do prefer the service of God to be celebrate and the people of God instruct  per fit mask in peace and quietness before any right of any other common  person and without any regard to infancy coverture or any such like disability  of the patron but at the commonlaw if one have a Ant a Cr Elizabeth Cr James  roll more hob Owen Leon roll Rep Mod Rep a usurp on the king and his presentee  have be admit institute and induct for without induction the church be not  full against the king yet the king at the commonlaw may have a quare b Cr  James before a   light a roll Bulstr light Rep b hinder and thereby remove the  incumbent for no act of the bishop or any other can bar the king of his right  c hob light Rep f n b king   light b b a b hard Jones Inst godb Plowd a roll  Rep palm roll Rep c no one time to run up king but in such case although it  concern the king if the presentee of another be admit institated and induct  the king can not present till he have remove the usurper incumbent by quare  hinder coke a and that be as have be say to avoid contention in the church so  that he who be in in such manner shall not be remove but by process and course  of law although it be in the king case but if a bishop d Inst roll hob   light  b before b d collate without title to a church presentable and his clerk be  induct yet that shall not put the rightful patron out of possession for that  be but a provision for the celebration of divine service in the mean time till  the patron present and that belong to his office and therefore shall not put  the patron to a quare he of in such pe case but his presentee ought to be  receive without any process of law and therefore in such case no plenarty by  collation can be plead against the patron for no plenarty be available in law  against he who have title to present but only plenarty by presentation and  therewith agree the word of the stat of e Ant e Westminster c cum some c  prsentaverit ad aliquan eccles but plenarty by f before a roll f collation at  the commonlaw do put he who have right to collate to his writ of right at the  commonlaw a Qure whether in the case of a donative plenarty be a good plea at  the commonlaw and whether since the statute possession for six month be a bar  Vid mutter v Chauvel I Meriv a for as plenarty by presentation do put he who  ought to present out of possession at the commonlaw acquire ration jure  plenarty by collation put he who ought to collate out of possession for g   b  calvin case   light a a a g eaden law be where eaden be ratio and that appear  by the judgement e b in the dean of Lincoln case but forasmuch as bishop will  admit and institute presentee without inform themselves as they ought to do of  the right of he who present many patron lose their presentment without coke  report b er p any regard to infancy coverture c for that reason the say Act of  h Inst c h Westminster cap be make and that recite cum some law prsentandi non  to have prsentaverit ad aliquan church pron  interrog  prsentatus sit admittus  id be custom ipse who be spit patron per no one other breve recuperate poluit  legal support svan how per breve de recto by which Act I vide b title present  all church h hob hetl Inst Jones cart I three point among other be provide if  a usurpation be make on a infant or feme covert who have a advowson by descent  the infant after his full age and the wife after the death of her husband  shall have the same action by quare hinder or assize of darrein presentment as  her late ancestor may have bad so if tenant in dower or tenant by the courtesy  or tenant for life or in tail suffer a usurpation he in reversion who claim it  by descent shall have the same remedy so the same law of a usurpation in the  time of the a hob Cr James Inst cart a vacancy of the bishopric archdeaconry  rectory c but in all these case the usurper have gain the inheritance by wrong  and the stat will not revest the right but only give a possessory action to  remove the incumbent where by the commonlaw they have not any remedy but by  writ of right in which they shall recover their inheritance but not their  presentment Edward quare coke b hinder b hob Jones hetl f n b ten Inst b Adam  case d be seize of a manor to which a advowson be appendant and die the manor  to which c descend to a infant the church become void and Adam usurp during  the infancy of e e at full age feoff f of the manor and afterward the church  become void and f present and the assignee of Adam bring a quare hinder and it  be adjudge that by the usurpation the infant be out of possession of the  advowson so that by his feoff of the manor at his full age nothing in the  advowson pass to the feoff because the feoff have but a right and the  usurpation be voidable by action which can not be transfer to a stranger b by  stat Ann c no usurpation shall displace the estate or interest of the patron  or turn it to a mere right but the patron may present upon the next avoidance  as if no usurpation have happen b and it seem also by the book that e be  likewise without remedy in such case but it be agree per totan curian in e b c  Inst c that if tenant for year or guardian bring a quare hinder although the  defendant have a writ to the bishop against the termor or guardian and his  presentee be admit institute and induct yet the tenant of the freehold be not  thereby put out of possession note a good difference betwixt he who usurp by  wrong as in e aforesaid and he who have no right and yet his presentee come in  by course of law et notam that the word of the statute be general law  prsentandi non to have the second thing which be enact by the say Act d Inst d  be that plenarty be no plea in a assize of darrein presentment or quare hinder  for the word of the statute be provided breve infra time halfyearly impetre  though infra time halfyearly prsentation svan recuperate non to be able the  three thing be de ctlero in short catalog ultim prsentation quare hinder  adjudice financial loss videlicet si time halfyearly transient per hindrance  alicuj ita quod bishop church To bring together spit patron Edward ice  presentation svan amillat adjudice financial loss ad valour ecclesiastical de  duob year et si time halfyearly non transient send disrationetur present infra  time prd tunc adjudice financial loss ad valor center point ecdes per One  annum c if a e Inst hob die pl Inst e infant or a femecovert have a advowson  by purchase they be not within the say first purview of the say Act but they  be within the say second branch if they pursue their remedy within the six  month by quare hinder or assize of darrein presentment so of a advowson which  they have by descent they may by the second purview have a quare hinder or  assize of darrein presentment within the six month but if they surcease that  time then the infant after hres ad tatem to come up shall have also coke  report a er p his remedy the same law of a feme covert after the death of her  husband see Brac lib fol e quare hinder e common e h h and note a Inst hob a  if tenant in tail suffer a seize upon and die the b Jones hob Inst b issue in  tail be remedy by the equity of the first branch which estate tail be create  at the same parliament coke a for after the stat the issue in tail can have a  writ of c f n b b Jones c right of advowson and therefore shall be aid by the  say first branch as it be hold in e and vide ass p e quare imp h also it be  resolve that in a quare hinder or assize of darrein presentment at the  commonlaw the say three point d   b dyer pl roll keb   light b d be not  inquirable ex duty as appear by Brac lib trac c fol who write in the time of h  before the say Act of west but now they be inquirable by force of the three  branch of the same Act for inasmuch as the plaintiff be thereby to recover the  valueof the church for two year if he can recover his presentment and the  value of the church by halfayear it be needful for the court to inquire if the  church be full or void if full of who presentment it be full to the intent it  may appear to the court if he may recover the presentment or not and last the  inquiry of the value of the church be needful forasmuch as accord to that he  shall recover damage vide e e damage e h Elizabeth dyer and at the commonlaw  before that stat in a quare hinder the patron do not recover any e   light b b  Inst Inst   a Cr Elizabeth t r e damage for the law do so abhor simony that it  give the patron no recompense either for his presentment or for any  disturbance thereof but at the commonlaw a quare hinder lie when the bishop  for any colour or cause will not admit his clerk or when any other disturb he  so that he can prefer his clerk then before the church be full he may have a  quare hinder and have a writ to the bishop but shall recover no damage note  reader it be adjudge pasch Elizabeth in a writ of error in the king bench  between f Leon Cr Elizabeth f Buckhorn and the queen on a judgement give in a  quare hinder in the common plea against he for the church of Rettingden in the  county of Essex that the queen shall not recover g dyer pl Inst Cr Elizabeth  Leon g damage in a quare hinder and the reason and cause thereof be show by  Wray chief justice because at the commonlaw no damage be recover in a quare  hinder and at this day no damage can be recover but only in case where they be  give by the say stat of west therefore the queen can recover any by the  commonlaw the queen be h Inst Cr Elizabeth h not within the say clause of the  Act of west which give the damage for the say clause as appear before have two  branch si time halfyearly transient per hindrance alicuj ita quod bishop  church To bring together spit patron prsentationem she vice to send away c and  the queen be not within this branch for she can lose her presentment and by  consequence can have double damage and the second branch et si time halfyearly  non to go over c depend on the other so that forasmuch as the queen be not  within the first she can be within the second and so the doubt in Elizabeth a  dyer pl Cr Elizabeth Leon a dyer coke b in sir I Thinns case now on the true  sense and understanding of the law be well resolve against the judgement give  in tempt e quare imp which seem to be the error of the clerk or of the  reporter for all the precedent in the same time and all time after be to the  contrary except two or three only of late time which pass in silence but with  this judgement agree h damage adjudge h e champerty e and the precedent as be  aforesaid and the judgement give in such case of the queen in Com banc which  be enter by the clerk without advice of the coke report a er p court be  reverse yet note that all the b jenk cent hob b count of the king in quare  hinder be to his damage and yet no damage shall be recover it be further  resolve in the case at bar that at the commonlaw in some case he who be admit  institute and induct at the presentment of another shall be remove by  judgement in a quare hinder as in a quare hinder if the disturber be defendant  present pen the writ and his clerk be admit institute and induct and afterward  judgement be give against the defendant such clerk shall be remove the same  law if a stranger usurp c cro James roll   light b hob c pen the writ his  clerk shall be remove by the judgement at the commonlaw and so in all case  when any clerk come in by the presentment of any stranger against who the  plaintiff have good title his clerk shall be remove so if the d roll Mod Rep  dyer pl d queen usurp and a quare hinder be bring against her incumbent for it  do not e hob e lie against the queen and pen the writ the queen present  another who be institute and induct he shall be remove for be come in under  the title of the plaintiff but if a stranger to the writ f roll Cr James    light b f who have good right present his clerk pen the writ and his clerk be  admit and institute he shall not be remove for the by such device the rightful  patron may be defeat of his presentment and that be one of the cause that  after the say Act of Westminster it shall be inquire if the church be full of  who presentment to the end it may appear whether the plaintiff shall recover  his presentment or not and that aigrette well with the reason of the commonlaw  for in every prcipe where any land or other thing be recover when judgement be  give for the demandant if it be plead in bar of any other action the tenant  ought to aver that the title of the now demandant be mean between the  judgement and the title of the demandant in the first action so that also  there be descent c it shall not hurt vide e title Title e h so that although  there be usurper pen the writ they shall not hurt at the commonlaw it be also  resolve that no incumbent shall be remove by the say stat by quare imp or  assize of darrein presentment purchase within the six month unless the  incumbent be name in the writ because a before b side jenk   light b hard f n  b r a res inter elsewhere acta one mocere non coke a debet although the  incumbent be in by defeasible title and therewith agree and Edward h h b  Edward Edward because whoever to some degree to cause to stand part to hear  whispered alteran cequum although to cause to stand haud cequus to be Seneca  traged foe Medea   light b Cr James hob Bulstr also when the quare hinder be  bring against the disturber and the bishop and six month pass as have be say  the bishop can collate by lapse then admit the other six month pass so that  the time be devolve to the metropolitan who be not name in the writ whether  shall he present by lapse and it be resolve that he can for he shall never  present by lapse but when the inferior ordinary may have collate by lapse and  surcease his time so that the first degree in such case fail and therewith  agree h it be also resolve that in the case at bar although it be find ex duty  that the church be full of boswel who be a stranger to the writ and it do not  appear whether he come in by better title than the plaintiff have yet the  plaintiff ought to have a writ to the bishop general and the bishop ought to  execute it c accord to the report of this case cro I the court in the first  instance decide that the judgement shall be reverse because the queen title  ought to be discuss before the incumbent shall be remove and by Popham if a  incumbent be present by the defendant pendent shorten he shall be remove but  not if he be present by a stranger without a to know facias the proper course  to stop stranger from present pendent shorten be to sue a ne to send to to the  bishop the judgement however be not reverse because the writ of error be  discontinue and Popham further observe here the jury find that Boswell come by  the queen presentation pendent shorten and it stand indifferent by what title  the queen present for if she present by lapse she have not any title and if  she present by any other title it ought to be discuss before the incumbent be  remove and if the incumbent be present by a stranger be shall not here move  without a to know facias and Lord Ellesmere in his observation p observe that  the matter in law question be only whether the judge of the common plea have  not err in the very point of their judgement because they have award a writ to  the bishop for the plaintiff notwithstanding reclamatione defendant and of  Laurence Boswell a stranger to the writ or either of they in which the court  give no resolution at all but to hang usque indiscussum and be end by  arbitrament in hall v broad side it be hold that there shall not be a writ to  the bishop without a to know facias against the incumbent where the incumbent  be not party to the action and Twisden I say boswell case have be often deny  Vid dyer pl note it appear from the entry that the writ of error be never  determine c avail it coke report b er p what it can and he can return on the  writ direct on he that the church be full of another for no issue can be take  between the plaintiff and he for he have no day in court no more than the  sheriff on a to have facias seisinam can return that another be tenant of the  land by right for that can come in issue between the demandant and he and  therefore he ought to execute the king writ and so ought the bishop in the  other case and although the three person have right yet they be excuse because  they have their warrant by process of law and then the party may try their  right as the law require and so you will better understand the book in e title  darrein presentment e incumbent h a b Elizabeth dyer h e Darr presentment e h  e dyer Henslowes case