case archbishop OF Armagh and another plaintiff attorney general defendant in  error that February Mews dig v a writ of error be bring in b r in the lifetime  of king George I but be not argue till after the accession of king George two  when the judgement be affirm on a writ of error in parliament this judgement  be reverse it be hold that the first writ of error the king be the sole  plaintiff in the cause be absolute abate the king by his prerogative have a  right to present to a church which become vacant by his promote the incumbent  to a bishopric but this right must be exercise in the lifetime of the person  promote otherwise the king turn be lose the deanery of Armagh be in the gift  of the crown but the advowson of the rectory of Armagh belong to the  archbishop of Armagh and his successor and these two preferment have be enjoy  for several turn by one and the same person it be imagine that the rectory be  a part or member of the deanery though not real so brown er p in the year dr  Bartholomew vigors obtain a grant of the deanery from the crown and afterward  prevail on the then archbishop to collate he to the rectory of Armagh as  belong to the archbishop in right of his fee in dr vigors be promote to the  bishopric of leighlin and fern dr Peter drelincourt obtain from the crown a  donation of the deanery of Armagh and be also institute and induct to the  church in question though there be no formal collation of he he however enjoy  the rectory with the deanery for year it be never doubt in all that time but  that the crown intend he shall enjoy the rectory as well as the deanery or  that he be well and legal possess of they in January bishop vigors die and in  march follow dr drelincourt die in quiet possession of both these preferment  in may Thomas then lord archbishop of Armagh collate the plaintiff Whaley to  the rectory of Armagh to which he be immediate after induct and much about the  same time or not long after the reverend Mr Richard Daniel obtain a patent  from the crown grant to he the deanery of Armagh in Michaelmas term a writ of  quare hinder be bring against the present plaintiff in the king bench in  Ireland in the name of his majesty and the attorneygeneral set forth in the  declaration that the archbishop be patron of the rectory of brown Armagh and  it become vacant by the promotion of dr vigors in and continue vacant from  that time to the time of the declaration by reason of the say promotion it  belong to his majesty to present etcetera the archbishop in his plea admit  himself to be patron of the rectory and that it become void by the promotion  of dr vigors by which mean it belong to their majesty king William and queen  mary to present to the rectory for that turn but then he say further that king  William and queen mary in the d year of their reign grant to dr drelincourt  the deanery of Armagh with all its right member and appurtenance together with  all land tenement tithe profit commodity jurisdiction emolument and advantage  whatsoever to the say deanery belong in as full force and beneficial manner to  all intent and purpose as the say Bartholomew Yigors the late dean or any  other person before hold and enjoy the same and that by virtue of these letter  patent the say drelincourt be admit institute and put in possession of the say  church as a member of the deanery aforesaid and that he hold and enjoy the say  church till his death then he set forth the succession of archbishop to Thomas  the last archbishop of Armagh and the death of dr vigors on who promotion the  vacancy happen and of drelincourt whereby it belong to the say Thomas late  archbishop of Armagh to collate to the say rectory and that he collate the  plaintiff Whaley and then follow a averment of the plea the other plaintiff Mr  Whaley plead that he be parson imparsonee of the aforesaid church of Armagh of  the collation of Thomas late archbishop of Armagh and confess the avoidance of  the church by the promotion of dr vigors to the bishopric of leighlin and fern  but then he say that king William and queen mary present Peter drelincourt  clerk to the church in question and that he be upon that presentation admit  institute and induct to the say church then he set forth the succession of  archbishop to Thomas late archbishop of Armagh and the death of vigors and  drelincourt at the time above specify without hoc that the church continue  void by the promotion of vigors as set forth in the declaration Mr  attorneygeneral demurrer to the archbishop plea and the archbishop join in  demurrer and as to Mr Whaleys plea be reply that king William and queen mary  do not present drelincourt to the rectory of Armagh as be allege by the plea  and conclude to the contrary to this replication the plaintiff Mr Whaley  demurrer and the attorneygeneral join in demurrer the case upon the plead be  this the king be patron of the deanery of Armagh and the archbishop patron of  the rectory of Armagh and both have become vacant by the promotion of dr  vigors who be both dean and rector to the bishopric of fern and leighlin the  king have a right to dispose as well of brown the rectory for that turn as of  the deanery grant to Peter Drelincount the deanery with all its right member  and appurtenance tithe advantage etcetera and the then archbishop take this to  be a presentation to or gift of the rectory by the crown as it be probable  intend institute dr drelincourt into the rectory and he be accord brown er p  induct and enjoy it with the deanery for upward of year and die in possession  dr vigors the bishop of leighlin and fern be dead a short time before he upon  argue this cause in Ireland two point be insist on by the then defendant and  now plaintiff in error first that though the king have not present dr  drelincourt yet that he have upon the institution of the bishop and induction  upon that institution enjoy the rectory till his death the king can not  present after drelincourt death one incumbent have die in possession after the  king right to present on bishop Vigorss promotion accrue by which the king  turn be either satisfy or lose the second point be that bishop vigors be dead  before the king present the king can have no right to present by his  prerogative so long after upon the avoidance that be make by the promotion of  bishop vigors this case be argue very often in the king bench in Ireland after  which the judge have take almost a year time to consider it do in Michaelmas  term give judgement for the defendant on both point whereupon in easter or  Trinity term a writ of error be bring in the name of his majesty king George I  by which the record be remove into the king bench in England and the judge of  that court have hear the case argue be please in easter term to reverse the  judgement in Ireland whereupon the defendant bring a writ of error in  parliament and on their behalf it be argue as to the first point t Lutwyche I  darnel that it be admit in the argument in both kingdom that upon a promotion  the crown be only entitle to supply the vacancy occasion by that promotion and  to fill the church for that turn it be conceive that dr drelincourt have be  the actual incumbent of the rectory and have enjoy it during his life and die  in possession the next turn which the crown be entitle to after the avoidance  make by the promotion have be serve and if it be not understand to have be  fill by the king then the king have lose his turn that upon argue this matter  in Westminster hall it be apprehend to have be admit that if the archbishop  have institute dr drelincourt upon the presentation of the king or of any  subject though the presentation have be wrongful or even void or if the  archbishop have collate dr drelincourt without title the institution upon such  void presentation or collation will have fill the church and the king turn  will either have be brown serve or lose but it be say that the institution of  dr drelincourt be neither upon a presentation or collation be mere void and  the church no way fill by it now it be conceive that the church of Armagh be  real full of dr drelincourt that he be to all intent and purpose rector of the  parish and that there be no ground for such a distinction either in the common  or canon law dr drelincourt be by his institution and induction enable to  serve the cure and receive the tithe which he can not be have his institution  be void and which it will if he have be a simonist or have not first subscribe  the article in both which case the institution be declare void by act of  parliament but this institution be not void either by the common canon or  statute law it be a know rule in the canon law that institution give law ad  remember et law in re and although after institution upon a void presentation  or collation the church be sometime in the commonlaw book say to be void yet  it be mean and be true only with respect to the rightful patron so far that he  may present his clerk as long as his right remain notwithstanding such  institution and induction and even without first remove the other clerk by  quare hinder but then with respect to the parishioner and all the rest of the  world the former clerk so institute etcetera be a real and complete incumbent  and may bring any action for his freehold or his tithe which one not institute  or who institution be void which be the same thing can do upon this point  therefore it be hope that the judgement in England will be reverse as to the  second point whether the king have a right to present after the death of  bishop vigors it be conceive that though the crown may by its prerogative  present to the benefice which be make void by the promotion yet the king may  not delay to present to it as long as he please but must do it in the lifetime  of the person promote because if the king present after the death of the  person promote he present to a benefice the right of present to which be  actual become another which will be to do a wrong and if the king turn be to  take place after so many brown er p year when the person promote be dead and  the life be not change before by the same reason the church may be keep void  and the patron deprive of his right for ever when the king have make the  avoidance by promote the incumbent it may be reasonable that he shall present  to the avoidance which he have make by his own act provide he do it before the  patron right accrue by the death of his clerk for the patron will not have  have any right of presentation at that time and if the king present in the  lifetime of the person promote he then give the patron one life for another  and take away nothing from he because no one can know whether the new or the  old incumbent will die first and upon this ground alone it have be adjudge  that this be a reasonable prerogative brown but it be object that the  plaintiff can show no authority in law that the crown can present after the  death of the promotee where the life have not be change before and therefore  there be no such restraint upon the prerogative to this however it be answer  that the king prerogative must have be immemorial and therefore they that  allege any thing to be the prerogative of the crown ought to show that it have  be exercise in the same or a like instance it be incumbent on they to produce  precedent and authority for it but there be not a single authority in all the  law book to show that the crown have present after the death of the person  promote where the life be not change before it be further object that if the  king can not present after the death of the promotee it will be necessary for  the attorneygeneral to aver the life of such promotee in his declaration as  often as the king shall bring his quare hinder to recover his right to present  on account of his promote a clerk to a bishopric but to this it be answer that  the king be already entitle to present by have make a actual avoidance by the  promotion the life of the promotee need not be aver in the attorneygeneral  count but if the person promote be dead that shall come out on the other side  there be however a three point in the case as it now stand namely that the  record be remove from Ireland by writ of error in the life of the late king  who be the sole plaintiff in it and he be dead which appear to the judge upon  the record it be apprehend that this writ of error be absolute abate and for  that reason the judgement give be erroneous because the sole plaintiff in this  case be dead before the judgement which be give for the present king though no  party to the writ and because this be a case not within the save of any of the  statute on the other side it be argue t reeves n fazakerley that there can be  no doubt but that the king title as set forth in the declaration be good for  upon the promotion of dr vigors to the bishopric of leighlin and fern the  church of Armagh be become void by session whereby a right accrue to the king  to present as lawful patron for that turn by virtue of his prerogative that  this prerogative right of the crown be now so establish that it can not be  controvert and though the king right to present accrue so long ago as the year  yet if his turn have not yet be serve or satisfy he still have a right to  present and so will any common person if he have a right to present as patron  for this turn notwithstanding the length of time that the question in this  case arise upon the plead of the archbishop and the incumbent Whaley and upon  the attorneygeneral replication to Whaleys plea videlicet I whether the  archbishop plea to which the attorneygeneral have demurrer be a good plea ill  whether the attorneygeneral replication to brown which the incumbent Whaley  have demurrer be a good replication as to the archbishop plea it be conceive  to be plain a bad plea and therefore nothing contain in it can be of any avail  to the plaintiff in error against the king title the plea be inconsistent and  repugnant in itself for it admit that the archbishop be seize of the advowson  in right of his archbishopric and afterward derive a title against the crown  under a grant by the crown of the deanery without show that the deanery be  belong to the archbishopric and if it be the king grant will not pass it the  plea be also nought for the cause assign by the attorneygeneral in his  demurrer and especial because the church of Armagh be not aver by the plea to  be a member of or belong to the deanery of Armagh and if it be not the grant  of the crown be nothing to the purpose beside upon this plea no material issue  can proper be take as to the incumbent Whaleys plea he after confess the  avoidance by the promotion of dr vigors plead that king William and queen  brown er p mary present one Peter drelincourt who at the presentation of the  say king and queen be admit institute and induct that drelincourt die and  thereupon the defendant Whaley be collate to this church by Thomas Lindsai  then archbishop of Armagh on the that of may etcetera now if this plea be true  in fact it must be admit that the king turn will be serve by the presentation  of drelincourt but the fact be deny by the attorneygeneral in his replication  and it be agree to be false by the demurrer of the incumbent Whaley if the  replication be good and if the fact have be true the incumbent may have take  issue upon the replication and prove it but the follow objection be make to  the replication I that the attorneygeneral ought to have join issue on the  traverse at the end of the incumbent plea whereby he traverse or deny that the  church be still void by the promotion of dr vigors and to fortify this  objection it be urge that this be a fact allege in the declaration and  therefore the defendant may proper tender a issue upon it two that the  incumbent have not only plead a presentation of drelincourt by king William  and queen mary but also that drelincourt at their presentation be admit  institute and induct and that the attorneygeneral by his replication have only  deny the presentation of drelincourt but have give no answer to the  institution and induction and it be urge that institution and induction  without a presentation will amount to a collation and fill the church against  the king to the first of these objection it be answer that in the declaration  the king title be first set out and then it conclude and so it belong to the  king to present to the church so vacant by the promotion of dr vigors and  continue hitherto brown vacant which be only allege by way of inference and  conclusion from what be before state in the declaration be not traversable but  that the king title before set out ought to be answer that as this traverse  stand upon the fact state in the incumbent plea it contain nothing but matter  of law arise upon those fact for if king William and queen mary present  drelincourt who upon that presentation be admit institute and induct and  afterward die then it be a consequence in law that the church be not still  void by the promotion of dr vigors that this traverse be not at all material  nor shall have be take by the defendant but his plea will have be good without  it he have before confess the king title and avoid it by the presentation of  drelincourt which be a complete answer to the king title and it be against a  know rule of law in plead to confess and avoid and also to traverse if  therefore the traverse be immaterial and not proper to join issue upon the  attorneygeneral have do right in pass it by and offer a issue by his  replication upon the material part of the plea which be the presentation of  drelincourt by king William and queen mary to the other objection it be say  that there be two way of fill a church videlicet by presentation or lawful  collation if this church have be fill by the collation of the archbishop the  incumbent shall have plead that the archbishop do collate but here he put his  case upon the church be fill by the presentation of the crown and admission  and institution upon that presentation that the institution and induction be  set out in the incumbent plea only as execution of the presentation and the  presentation be deny by the attorneygeneral and it be admit by the incumbent  demurrer that there be no such presentation of consequence there can be no  institution and induction upon that presentation beside if there be no  presentation of drelincourt his be institute and induct will be of no avail to  the incumbent to avoid the king title for institution and induction without a  presentation be mere void against a lawful patron and to this purpose green  case   and Hunston and Cocketts case croak be authority in point the  replication therefore be conceive to be good though it take no notice of the  institution and induction of drelincourt set out in the incumbent plea but  another objection arise upon the face of the plead be make to the king title  videlicet that it appear that dr vigors upon who promotion the church become  void die on the d of January and that by his death the king title to present  determine to this it be say that the king right be to present to that turn and  there be no authority whatsoever to show that this right determine when the  promotee die but on the contrary the constant form of plead show that the law  be otherwise for to entitle the king to a presentation upon a avoidance by  session it be never set out in plead brown er p that the promotee be still  alive but this will be brown absolute necessary if the king title determine by  his death it be therefore pray that the judgement of the court of king bench  upon which this writ of error be bring may be affirm after hear counsel on  this writ of error a doubt arise whether the writ of error returnable in the  court of king bench in England from the court of king bench in Ireland be not  abate the same have be take out in the lifetime of his late majesty but not  returnable till after his death and the counsel be direct to withdraw the  follow order and judgement be make for that it appear to this house that the  writ of error returnable into the king bench in England be abate by the demise  of his say late majesty it be hereby order and adjudge by the lord spiritual  and temporal in parliament assemble that the judgement give in the court of  king bench in England be and be hereby reverse and that the record be remit in  consequence of this determination the attorneygeneral bring a new writ of  error returnable in the court of king bench in England and in Trinity term  that court give the same judgement of reversal as they have do before  whereupon the archbishop and Mr Whaley bring a new writ of error in parliament  and in support of it the follow additional argument be offer as to the first  point t Lutwycbe d rider whether drelincourt have be institute and induct to  the rectory of Armagh after dr Vigorss promotion and enjoy it till his death  the king can have a right on account of that promotion to present another  clerk to the rectory although he have not or do not present drelincourt to it  it be say that where the crown have but a temporary right as the right by  promotion be the law book agree that the rule no one time to run up king will  not hold they also agree that where the king or a common person have a right  to present to one turn only if he suffer a incumbent to die in possession of  the church that turn be lose and he can present afterward now it be state in  both the plead that drelincourt be at least institute and induct to the church  of Armagh after dr Vigorss promotion and that he die possess of it to which  the attorneygeneral have give no answer and that which the plaintiff in error  insist upon be that whether drelincourt be present or no yet his institution  induction and enjoyment make he incumbent and that by his death a end be put  to that turn and consequent to the king right that institution and induction  will make a man incumbent appear because a church never lapse after a clerk be  once institute to it and if a incumbent of a church of the value of pound per  and or upward be institute and induct or institute only to a second church  without dispensation the first church immediate become void by session whether  he be present to the second or no that this be evident from the know practice  of all the court of commonlaw where when a clergyman sue for any right belong  to his church they require no more of he to prove himself incumbent but to  show that he have be institute and induct these be the proper token and  evidence by which he be know to the parishioner and other and therefore the  law judge the church full accord to these and not accord to the presentation  which be a thing secret and hide from the parishioner and every one else  except the bishop and the person present and present and be the law otherwise  it be easy to see what absurdity and inconvenience will avoidable follow but  it be object on behalf of the defendant that green case   and Hunstons case  croak be authority in point to show that institution and induction without  presentation be mere void against a lawful patron the first of these case  however manifest prove not that they be mere void even as to the patron but  only that they be void to one purpose namely that be may still present to the  church without be put to his writ of right of advowson or his quare hinder  which be perfect consistent with the church be full to all other purpose and  so this be explain by Gawdys case hob where such clerk be say to be a full  incumbent and may sue for tithe and the lapse be stop by he and the like be  lie down in several other case as to Hunstons case it relate to a appropriate  church to which the bishop have no right to institute and so make nothing to  the present point there it be true that institution and induction without  presentation be mere void I e void not only to the patron or appropriator but  to the parishioner also as appear by that case jour vol p brown er p as to the  second point whether the king can have a right to present to the rectory after  the death of dr vigors by who promotion to a bishopric the vacancy happen put  what relate to the institution and induction of drelincourt quite out of the  question it be apprehend the crown can have no right to present to the church  of Armagh after the death of bishop vigors because the prerogative of present  to a church vacant by the promotion of its incumbent be not intend to  prejudice the patron right for the reason every where give in justification of  that prerogative be that the king make the avoidance and only fill the church  again and so do no more than exchange one life for another which can be  consider as any loss to the patron this reason hold with regard to those case  which have be adjudge for the crown where the person promote be alive but fail  when he be dead at the time of the king presentation because the avoidance  will then have be without the promotion and this distinguish the present case  from those of simony and lapse and other case of the like kind where the fault  or neglect of the patron be the foundation of the king right there the patron  forfeit the turn and the king gain by his loss but in the present case as the  patron commit no fault so he be suppose to forfeit nothing and therefore if  the king will fill up the avoidance he have make he ought to do it so as the  patron may not be prejudice and which can be unless he present before the  death of the former incumbent it be further to be consider that when the  person promote be dead the king have the disposal of his bishopric again and  it be but fit and reasonable that the effect of the former promotion shall  cease when a new one arise for otherwise the crown may have several title of  presentation at one and the same time arise from different and successive  promotion to the same bishopric and after the king have dispose of such  benefice as fall in his gift by several late promotion he may have a title  still stand out and not execute which fall by a former promotion to that very  bishopric even though at the distance of fifty or a hundred year but this be  whole inconsistent with the rule of law that the king prerogative shall be  exercise in such manner as not to do a injury to the property of the subject  and which will manifest be the consequence if what be now contend for by the  defendant shall prevail for if the crown shall refuse or neglect to make a  formal presentation for ever as in this case it do for year and yet permit the  benefice to be enjoy in the same manner as if the crown have present the right  of the patron will be thereby take away and destroy as to the objection make  against the plead they relate partly to the archbishop plea and partly to the  plea of the incumbent Whaley the most material objection to the archbishop  plea be that it be inconsistent with itself because it first admit the  archbishop to be patron of the rectory of Armagh and afterward derive to  drelincourt a title to that rectory from the grant to he of the deanery by the  crown but this be a mistake the plea do not derive any title to the rectory to  drelincourt from or under the grant of the deanery to he nor do the word  pretense in the plea imply any such thing and if what be therein mention  concern the grant of the deanery be not necessary yet it be but surplusage at  worst and do not make the plea inconsistent the force of which consist in its  set forth that drelincourt be institute and put in possession of the rectory  of Armagh and die seize thereof which be enough to avoid the king title  against the incumbent plea it be object that it confess and avoid the king  title and also traverse it which be contrary to a know rule in plead but the  traverse be absq hoc that the church remain vacant by the promotion of vigors  and that issue take in the whole merit of the case suppose it however to be in  judgement of law a immaterial traverse yet that fault be cure by several late  act of parliament both in England and Ireland which direct the judge to give  judgement accord to the very right without regard any immaterial traverse  etcetera it be further object to this plea that the institution and induction  of drelincourt be therein set forth only as execution of the crown  presentation of he so that if he be not present by the crown which be suppose  to be confess by the subsequent demurrer he can not of consequence be  institute and induct on the crown presentation consequential plead be vicious  and whatever be affirm or deny it ought to be direct and in express word the  institution and induction therefore of drelincourt be pass over without notice  and the presentation of he which if the now plaintiff be right upon the point  of law be not necessary to the incumbent plea be alone traverse in the  attorneygeneral replication and that brown er p replication be insufficient in  substance nothing be confess by the subsequent demurrer but further it be not  the incumbent own title but his predecessor drelincourt which the incumbent  plead in manner aforesaid it be sufficient for the present incumbent to show  that drelincourt be rector of the church of Armagh since the promotion of  vigors and that he die so but whether he have a indefeasible title to it or  how he come into it do not concern the incumbent nor can he so well know his  predecessor title as his own or be suppose to plead it so well be in fact a  stranger to it and it be conceive that hardly any thing have be object in the  whole of this cause with any show of strength but what have arise front not  distinguish between the several title of the present incumbent Whaley and of  drelincourt the last incumbent the attorneygeneral on the part of the crown  rest his case upon the reason and argument urge on the former writ of error  but after hear counsel on the present writ upon the d of April and the judge  be hear upon certain question to they propose and after due consideration and  debate it be order and adjudge that the judgement give in the court of king  bench in England revise a judgement of the court of king bench in Ireland  shall be reverse and that the say judgement give in the court of king bench in  Ireland shall be affirm jour vol p