case Fitzherbert versus chancellor and scholar OF the university OF oxon and  reeves clerk hill whether in c b rot avoidances before conviction be as much  within the stat James cap as avoidances after and be equal within the remedy  provide by that statute where the patron have present one incumbent before  conviction and the university present another after the bishop have his  election to take one presentee or the other and if the bishop admit and  institute the presentee of the university the patron can maintain a quare  hinder because there be no disturbance but if the bishop have institute the  presentee of the patron quaere in that case whether a quaere hinder will have  be maintainable this be a quare hinder by jane Fitzherbert for the church of  Swinnerton in come Stafford the plaintiff declare that bazil Fitzherbert be  seize in fee of the manor of Swinnerton with the advowson appendant and by  indenture date the that and that of January car convey the same to the use of  himself for life and after to the plaintiff his wife for life that Basil  Fitzherbert afterward present John plant clerk comens and die that the church  afterward become void by the death of the say John plant by which the  plaintiff have a right to present but the defendant disturb her the chancellor  and scholar by their plea confess that bazil Fitzherbert be seize convey and  die and that the advowson become void ut above but that by the statute saint  Elizabeth c S a Elizabeth it be enact that every person who comens er p shall  forbear to repair to divine service contrary to the statute saint Elizabeth c  S b Elizabeth and shall be thereof convict shall forfeit of which the justice  of assize oyer and terminer and gaoldelivery and justice of the peace at their  quartersession shall have cognizance that by the statute saint Elizabeth c S c  Elizabeth t be enact that for the more speedy conviction of such offender if  upon indictment of such offender proclamation shall be make at the assize c  that such offender shall render himself before the next assize and if he shall  not appear at the next assize on the record of such default the offender shall  be convict that by the statute saint James c S d James it be enact that every  Popish recusant during his remain convict from and after the end of that  session of parliament shall be disable to present to any benefice c and that  the university shall present to every such benefice the two clause of the  saint James c videlicet the that and that which give this benefit to the  university respective be private clause of which the judge can take notice  unless they be plead   a hob Gibs cod burn e l and in the county of Stafford c  which shall happen to be void during such time as the patron thereof shall be  and remain a recusant convict that by the statute saint W m c S a I W m it be  enact that any two or more justice of the peace who shall suspect or be inform  that any person be a papist shall tender to such person the declaration in the  statute car saint c S b car and if he shall refuse to repeat and subscribe  such declaration or to appear before the justice of the peace upon notice  leave at his most usual place of abode by any person authorize thereto by  warrant under the hand and seal of such justice of the peace such person shall  thereafter be disable and become liable to the penalty and disability of a  Popish recusant convict and the justice shall certify the name and abode of  every person so refuse to the next quartersession there to be record that by  the statute W m st W m c S c it be enact that every person who shall refuse to  repeat and subscribe the say declaration or to appear c as in the last Act be  direct who name and comens abode shall be thereon certify and record at the  general quarter session from and after the time of such record make shall be  disable to make any presentation c of any benefice c as full as if he have be  a Popish recusant convict and that the university shall present c that on the  that of march annae Ralph bucknal Richard Dyett two just ad peace c shape fuer  quod quer suspect to be before papist quodq notice inscript per quend r a  authorize virt warrant sub manib seal dict duor just relict to be pro quer  send pillage quer non comperuit and that the justice certify the default to  the quarter session which be there record per quod vigour stat predict the  chancellor and scholar to the church per mort predict john plant vacant thus  far vacant existen predict quer difficult to handle army stat predict ad  praesentand remanen praesentaveru the defendant reeves c the defendant reeves  plead the same plea the plaintiff reply that the church vacavi per mort  predict john plant April annae and that the plaintiff June prox do present to  the bishop of Litchfield and Coventry fit mask videlicet quend john Walforne  but the bishop to send to inside to disregard object ac predict cancel scholar  predict reeves defendant the same quar in a placing before that injust  impediebanC de quo quidern impediment postea infra sex menses c ac day before  predict certification in plea pillage mentionat think over to be c videlicet  jul annae breve suum original c to gain one c superinde to make known pro  impedimenta predict versus predict defend to this replication the defendant  demurrer and the plaintiff join in demurrer sergeant Pratt insist that though  the plaintiff have present to this advowson yet he be convict for recusancy  before institution and induction the university have title to present for the  statute W m sess cap which say that a person suspect to be a papist shall have  notice c and if he refuse to appear c such default shall be record and from  and after the time of such record make shall be disable to make presentment  relate to the statute James cap and shall be construe as if the statute of  James c be express repeat and the statute James c say that every Popish  recusant during his remain convict from and after the end of that session of  comens parliament shall be disable to present to any benefice c by which it  appear that every person convict for recusancy be disable from present to any  benefice and there be no difference where the person be convict before the  avoidance happen or after for in both case the law exclude his power of  present and intrust the presentation with the university and admit the  university to be entitle to the presentation when the patron be comens er p  convict for recusancy after the avoidance then the case will not be alter  because the plaintiff have present before conviction and be disturb in her  presentation by the university have bring her quare hinder for such  disturbance before her conviction be record for though the disturbance be  before the title of the plaintiff be avoid yet if the title of the plaintiff  be avoid before the plaintiff recover she can recover nor have damage for the  disturbance for the disturbance do not prejudice the title of the plaintiff  which be afterward avoid by Act of parliament before the plaintiff can have  recover upon that title the plaintiff shall not have damage for the  disturbance till he have judgement and no one shall have judgement for damage  in quare hinder when he can have a writ to the bishop infra p a   Litt and  notwithstanding the objection in this case it appear that there be a regular  conviction accord to the direction of the statute the first objection be that  it do not appear that the plaintiff be duly summon and refuse to appear before  the justice but only that notice c be leave at the mansionhouse of the  plaintiff without say it be at that time tunc house mansional of the plaintiff  but when notice be give at his mansionhouse that be not true if it be not then  his mansionhouse and mansional house import that it be so then the second  objection be that it do not appear that the person before who the conviction  be be then justice of the peace for it be only say that information be give to  such and such just domini king ad peace c without say tune existen just ad  peace c but when the conviction comens be before justice of the peace who act  in their judicial capacity it shall be intend that they have then a good  authority when it appear that they ever have a authority for their authority  shall not be presume to be determine but to have continuance till the contrary  appear and though there be many case in indictment where it must be allege  they be tunc just yet they do not extend to plead in bar which be sufficient  to a common intent and it be argue by sergeant wield and now by sergeant Lloyd  for the plaintiff who insist that the conviction be not till after the  avoidance happen and therefore the avoidance be a chattel vest in the  plaintiff and she have execute her authority to the presentation before the  conviction and therefore the conviction can by relation defeat what be  absolute execute quoad the plaintiff before the word of the statute be that  from and after the certificate of the default record such person shall be  adjudge a person disable to make a presentation but there the presentation be  make before such certificate to which sergeant Pratt reply that though a  person can not be adjudge difficult to handle till the certificate be record  the question be whether when he be adjudge disable this do incapacitate he  from present to avoidances which happen before the certificate record as well  as to avoidances after afterward in Michaelmas term annae this case be again  argue by sir Thomas powis premier sergeant for the plaintiff and by sergeant  Cheshire for the defendant and for the plaintiff it be insist first that by  this plea there do not appear to be a legal conviction and he do not wave the  exception take to the conviction by the counsel who argue before he videlicet  that the plea show that information be give to r Bucknall and r Dyett two  justice of the peace that the plaintiff be a papist that she have notice by a  b by warrant of the say justice but do not say adtunc justice and perhaps they  be not then in commission though they be at the time of comens the plea also  that it be say notice be leave ad mansional dom of the patron without say  adtunc dom mansional second that it do not appear that the plaintiff refuse to  appear before the justice accord to the summons for the summons be to appear  before the say two justice all just and it be allege only that she do not  appear before the say two justice but perhaps she appear before the other  three that it do not appear that the plaintiff refuse to appear but only say  quod non comperuit fourthly that it do not appear that the church be void at  the time of the plea but only that it be vacant by the death of plant and so  remain to the time of the information to the justice comens er p but the  exception which he principal enforce be that here it do not appear by the plea  that the justice of the peace be present at the time and place when and where  the plaintiff be summon and appoint to appear before they and when a man plead  a matter which show a default in another he ought to show that all the  particular be observe which render that default inexcusable as if a man plead  a default of a tender of rend above p a it be not sufficient to say that the  rend be demand and there be nobody ready to pay it but he must allege that he  be at the time and place of payment and continue there a reasonable time  videlicet till sunset ready to receive it so in covenant for levy a fine c it  be not sufficient to say that the party do not levy it but he must show that  he on the other part take out a writ of covenant c and do all that be to be do  on his part and it be here to be consider who ought to do the first act for if  he do not do all on his part it shall not turn to the disadvantage of the  defendant that he do not do his part and therefore where the justice of the  peace summon another to appear before they comens at a certain time and place  it ought to be allege in the plea that the justice be ready at the time and  place assign to tender the oath and declaration require and it be the strong  that the justice be not a court which have a certain fix time to assemble but  have a authority for this particular purpose only second the plea ought to  show that the plaintiff refuse to appear before the justice which grant the  summons and before any other justice for this statute I W m refer as to the  manner of conviction to another Act of the same session cap by which it appear  that any justice of the peace have power to tender the oath and declaration  then when the two justice summon the party before they or any other justice if  the party appear before other justice it be as well as if she appear before  the two justice who grant the summons but if there appear upon the plea to be  a good conviction yet it be too late for it appear upon the record and be now  confess by the demurrer that the plaintiff at the time of the presentation at  the time of the disturbance at the time of the action commence be not convict  nor summon before the justice for the declaration in quare hinder be in mich  term the information before the justice upon which the plaintiff be summon to  appear before they be not till march follow the case of the chancellor of  Oxford   b be not parallel to the present case and I do not observe it to be  urge on the other side for there the statute James cap which avoid grant of  the next avoidance by the express word of the statute have relation to the  time of the session and there be a reason for it for if the grant of a  benefice shall not be void till conviction yet upon the summons in order to a  conviction the person so summon will grant the advowson which mischief can  follow in the present case the patron here then at the time of the  presentation be a comens person qualify to present when the avoidance happen  she have a interest or right vest in her to present and when she have present  a fit person she have perform her office and have nothing far to do when a  avoidance happen that the interest in that S vest in the patron be manifest  for if the patron after the avoidance happen die his executor or administrator  shall present if there be tenant pur auter vie of a advowson which become void  and before presentation beneficiary and vie die yet the tenant pur auter vie  shall present so if there be a guardian of a infant seize of a advowson and  there be a avoidance and before presentation the infant come of age yet the  guardian shall present but in our case not only a interest be vest in the  patron before the conviction but the patron have execute her power by a actual  presentation of a person who to be fit mask and so it here appear upon record  it be say that a presentation be not a execution of the authority of the  patron for he may revoke his presentation at pleasure and for that be cite the  case in latch roll Abr but this I deny it be true the king may revoke his  presentation by his prerogative Fitzherbert nat Brev F n b that edit p c a hob  but there be case which take notice that it be the prerogative of the king to  do this import that a common person can revoke his presentation and so it be  express say Fitzherbert nat short catalog comens er p the civil law take  notice that a ecclesiastical person can revoke his presentation but a lie  person may to diversify praesentationem or accumuland to diversify as some  book say but it be not say by the civilian that a lie patron can revoke his  presentation but can vary it that be can present another or accumuland to  diversify that be present one and another so often how often and then the  bishop may take one comens presentee or the other which he please which show  that by their notion the lie patron can revoke but only vary which do not  amount to a revocation of the first presentation for then the bishop can not  take the first presentee and this be all which roll say he take notice that by  the Scotch law a ecclesiastical patron can vary his presentation but a lie  patron may to diversify or accumuland to diversify and for that quote skeens  Reg majesty I have examine the regian grandeur with attention but have be  unable to discover the passage to which our author refer which be so and then  conclude that by our law a lie patron can revoke which be a express authority  for we when the patron have present fit mask he have do all that belong to he  to do Goldsb say that to a entire and complete plenarty be require the act of  the patron videlicet to present a fit person and when he have so do perform be  duty the act of the ordinary to give institution and the act of the incumbent  to procure induction and by this rule when the patron have present he have do  all that lie in he to do and by such presentation a interest be vest in the  person himself who be present it be true that quare hinder must be bring in  the name of the patron and not the incumbent but the incumbent may sue in the  spiritual court to get admission by duplex complaint though perhaps the  temporal court will upon such a suit grant a prohibition but if the plaintiff  here can not have a writ to the bishop yet the suit in quare hinder be well  commence he may proceed for damage and I deny the rule lie down on the other  side that the plaintiff shall not have damage in a quare hinder where he can  have a writ to the bishop the case   Lit Supra p a only say that the defendant  can have damage because he can have a writ to the bishop but the plaintiff may  have damage though be can have a writ to the bishop if there be a quare hinder  against the disturber comens and the incumbent without name the bishop and pen  the writ six month pass upon which the bishop collate for the lapse as he may  do in such a case though the plaintiff have judgement he can have a writ to  the bishop to admit his clerk for the church be full but he shall have damage  and the statute west which give cost in quare hinder provide express for such  a case for by that statute it be enact that the jury inquire of four point if  the church be full and who presentation c if it be not full the plaintiff  shall have only half a year value if it be full he shall have two year value  damage in the present case the avoidance happen and the interest in it vest in  the plaintiff before conviction the plaintiff upon that present be then  capable of present and by her presentation have execute her power and if the  presentee have be then institute and induct it will without question have be  good and therefore the disturbance be a injury to the plaintiff and also to  the presentee who have a interest by the presentation to he and be fit mask  ought to have be admit and upon the refusal of he a quare hinder be bring and  all this before the conviction for recusancy and for these reason he pray  judgement for the plaintiff if after a quare hinder and judgement for the  plaintiff any thing happen that the bishop can admit the clerk he may make a  special return of that matter upon the writ direct to he and upon this record  the plaintiff in the present case can make no other presentation for by her  replication she show that she have present such a person and upon the refusal  of he this action appear to have be commence and therefore if the plaintiff  recover the writ shall be confine to the same person to this it be observe by  sergeant Cheshire that in quare hinder if the plaintiff be outlaw pen the writ  that comens outlawry give the king the title and the plaintiff can recover if  that appear but on reverse the outlawry the plaintiff shall have execution of  his judgement and the king incumbent shall be remove cro Elizabeth cro  Elizabeth Leon j SC more pl SC and SC gold SC infra p a Sav S c which case be  allow to be so but that it import no more than that a comens er p avoidance  though only a choose in action be forfeit to the king by his prerogative upon  a outlawry and therefore if a tenant to the king have a advowson which become  void and the tenant die his heir within age and in ware of the king the king  shall present by his prerogative and not the executor of the tenant as it will  be if the heir be in ware to any common person and therefore a case of  prerogative ought not to be compare to the case of a common person and  sergeant Cheshire on the other side insist that the exception to plead the  conviction can not avail for it be express say that information be give to r  Bucknel and r diet just ad peace which notice be leave at the mansionhouse of  the plaintiff but the proposition be false if they be not then justice of the  peace and if it be not then the mansionhouse of the plaintiff second this case  be not to be compare to plead upon a forfeiture or breach of covenant when the  party who will take advantage of such forfeiture or breach of covenant must  show precise that he have do every thing on his part and therefore he agree  that the plead shall be as be mention where a man take the advantage of  nonpayment of rend or the not levy of a fine c but the justice here have a  special authority by Act of parliament and when it be show that they have  proceed in all respect as the word of the Act direct it shall be intend that  they have do all that those word import or require they to do three he insist  that by the Act after summons to the party to appear c he ought to appear  before the same justice and no other comens as to the matter of law he insist  that by the express word of the statute W mst W m c S a that every person  convict for recusancy be disable from present and though in the second clause  which give the presentation to the university the word be from and after such  record make c yet it be manifest that in all case where the patron be disable  from present for recusancy the university have the presentation and therefore  such a construction ought to be make as may reconcile both clause of the Act  and answer the intent of it the conviction though after the quare hinder  commence may be plead in bar and he compare it to case where matter subsequent  and which happen pen the writ may be plead in abatement to the writ and cite  many case to that purpose and rely on the case in above p a cro Elizabeth  where in quare hinder outlawry of the plaintiff give title to the king he deny  that the plaintiff can not revoke her presentation or that it be confine to  this particular presentee if she recover or that the presentee of the  plaintiff have any right or interest vest in he by this presentation  Adjornatur vide infra p comens er p