case hill against boomer the question whether a person be a priest at the time  of his admission to a benefice shall be try by the bishop and not by the  country for though car c S say that every person not ordain shall be disable  and Self facto deprive and his promotion void as if he be natural dead yet be  declaratory of the commonlaw he be not disable until he be deprive and the act  of deprivation belong to the bishop SC lev SC Jones SC keb SC Mod prohibition  declaration therein and plea to it and demurrer thereon the case be thus a  parson be cite to appear before his ordinary for that he be a layman take a  benefice the declaration state that he be a priest ordain c the defendant  plead that he be not a priest at the time of the admission institution c et  hoc a preparation be verify the plaintiff reply that he be a priest ordain  accord to c at the time of his presentation admission institution and  induction at Boston in the county of Cornwall et hoc a preparation be verify  the question be whether priest or no priest shall be try per pais by the  statute car c no person who be not ordain a priest or deacon accord to the  form of episcopal ordination shall have hold or enjoy any parsonage vicarage  or benefice with cure or other ecclesiastical promotion but shall be utter  disable and Self facto deprive of the same and all his ecclesiastical  promotion shall be void as if he be natural dead it be urge that the plea be  good because it shall be try per pais for be a special issue it you he to be  so try a and that the defendant can not pray a writ to the bishop because the  plaintiff in his declaration lie not by what bishop but only that he be a  priest in rastal b it be say that in plead a bargain and sale he ought to say  in what court otherwise it will bet infinite labour to search all court so in  our case to send writ to all the bishop c this pure belong to the bishop and  there be no way to get he out but by deprivation first Mr pollexfen e contra  this be within the jurisdiction the Act of uniformity and car c say the church  be void and not full except a priest ordain c and therefore it may be try at  commonlaw as by ejectment if he can be turn out only by deprivation then the  ecclesiastical court may have conusance now they be not judge of the fact at  all they will have priest or no priest try by the country and admission and  institution try by the bishop certificate if they have make the time to be the  sole point in issue as by grant that he be shower KB a priest but that he be  not so when present admit c but here be several thing heap together in their  issue most of which do belong to the ecclesiastical court quaere Mr pollexfen  argument for I can not well bear it Scroggs chief justice time here be mere a  circumstance in the issue tender Jones justice the trial here in this case  ought to be by the bishop where a time be only a circumstance of a spiritual  act there the whole matter ought to be try by the bishop but if the spiritual  act be admit as possession c and the time only be question this shall be try  per pais Pemberton justice the sole question seem to I in this case to be  whether or no the live or benefice be absolute void by the statute if it be  void by the statute and so absolute void by the statute that there needs no  deprivation to make it so then no consultation ought to go for they have  nothing to do therewith be a absolute avoidance by statute at the commonlaw  the suit ought to be there for deprivation because mere layman and we can not  prohibit it because it must be avoid by deprivation dolben justice the word be  strong to make it void No person who be not already in order by episcopal  ordination or shall not be before c shall bold and a yearbook Henry pl b  rastal Ent yearbook Edward pl Yelv Litt sect c dyer hob shower KB er p enjoy c  but shall be disable and Self facto deprive of the same and the same to be  void as if he be dead c Mr holt in the Hilary term follow argue it again that  a consultation ought to go for the matter be nothing but this a rector be  libel in the court Christian to be deprive because not a priest at the time of  his admission c the spiritual court have conusance of this matter before any  Act of parliament for to be a priest be a necessary qualification by the  commonlaw as to that matter dyer and the Act of uniformity be no more but a  affirmance of the commonlaw and do not make it Self facto void but only  voidable by deprivation which only can be in the spiritual court now here be  no word that take away their jurisdiction shower KB it say a man shall be  incapable but it do not say his admission institution and induction shall be  void now this incapacity make it only void at commonlaw such as be the  disability of a person attaint or of a alien he may purchase but can retain  this do not make the acceptance void so that deprivation seem to be still  necessary beside the ordinary quatenus ordinary have jurisdiction of the cause  then admit the Act make it void Self facto as in case of simony yet this do  not take away the ecclesiastical jurisdiction for they may examine simony and  though as to simony there be a clause that save their jurisdiction as to  punish the party yet doubtless they may do it have there be no such clause d  as to the plead we have plead that he be no priest at the time and conclude  with the country though priest or no priest be triable only by certificate yet  the time be triable per pais e but if that be nought how come their  prohibition to be good for that he be a priest be their suggestion Mr sander e  contra if a special issue be join the bishop shall try priest or no priest but  if the patron have present as doubtless he may and the bishop have refuse a  quare hinder may have be bring or if after admission institution and induction  a ejectment have be bring it shall be try per pais the bishop can original  convene this cause before he though he shall try it when the king court write  to he as in case of general bastardy loyalty of marriage c Scroggs chief  justice this thing be triable only per pais when it be a collateral matter at  commonlaw a mere layman be incapable by a statute Elizabeth c S a deacon be  make capable by this statute and car c none but a priest be so and so it be  restorative of the commonlaw so that regular and proper this be of spiritual  conusance I take the statute to be declarative of the commonlaw and the  benefice not to be Self facto void but that there must be a deprivation and it  be not like the case of a woman present for that be a perfect nullity certain  there can be any lapse for when a mere layman be in the church be full and the  patron must have notice shower KB and notice be conclusive and how can the  bishop give notice if he may not examine and he can examine unless he can cite  the party Jones justice I think it void and the statute not declarative of the  commonlaw for the word be as I take they and shall be void as if he be actual  dead dolben chief justice I think the Act only restorative of the commonlaw  and suppose there be another remedy shall this take it out of the ordinarys  hand they do usual deprive for simony nay in green case   they deprive for not  read the thirtynine article and yet that be no offence before the statute a  consultation be afterward grant by the whole court and Jones justice declare  himself clear of opinion with the other though he doubt upon the second  argument d see the case of smith v shelbourn cro Elizabeth and baker v Roger  cro Elizabeth Bl Com e yearbook I Henry pl shower KB er p