case Fitzherbert versus chancellor and scholar OF the university OF oxford and  reeves in c b vide above p this case come now for judgement and Trevor c j  deliver the opinion of the court and be consider first if the statute James  cap extend to avoidances before conviction or only to avoidances before  conviction for recusancy second if it extend to avoidances after conviction in  this case where upon the avoidance a presentation be make and for not admit  the clerk present quare hinder be bring before conviction comens three if the  conviction in this case be legal and the court think that the statute James  cap extend to all avoidances as well before as after conviction for the word  of the Act be general and the subsequent word when it shall become void c be  word of enlargement and extend the gift of the avoidances of recusant to the  university so often how often the advowson become void and word which be  intend to enlarge shall never be construe to restrain the former word  avoidances before conviction be also within the same mischief as the  avoidances after and it will be a hard construction that general word shall  not be extend to remedy all case which be within equal mischief second all  avoidances be within the statute James cap though the patron have present and  upon refusal of his presentee have bring a quare hinder before conviction yet  in such case judgement shall be for the defendant for after the presentation  the right remain in the patron and as before induction the king may revoke his  presentation so a common person till his presentee be institute may at comens  er p least vary his presentation and upon such variation the bishop may admit  the first presentee or the last this power then to vary the presentation  remain in the patron till the church be full but by this presentation nor by  the quare hinder be the church full for quare hinder will not lie if the  church be full by his own presentation at the time then of the conviction this  power or right of vary his presentation remain in the patron and why shall it  not be give to the university after the conviction this power if the patron  die shall go to his executor or above p a administrator if he be outlaw shall  be forfeit to the KingSupra p b Sav and for the same reason shall be transfer  to the university then when the chancellor and scholar of the university after  the conviction present a incumbent to the bishop and the patron before  conviction have present another the bishop have the election to take one  presentee or the other and therefore when the bishop admit and institute  comens the presentee of the university the patron shall not maintain a quare  hinder for that there be no disturbance for it be in the bishop power to  accept which he will but if the bishop have admit the presentee of the patron  and the university have bring a quare hinder if that will be maintainable will  be another consideration as to what be insist that the plaintiff here have a  right to maintain quare hinder for damage damage in quare hinder be but  accessary and follow the right of presentation and therefore if the plaintiff  have no right to present she shall not have damage for her right be not  disturb three the conviction here be legal for when the party be summon before  the justice of the peace to take the oath c the party ought to attend at the  day and here it be allege that she refuse and do not come before the justice c  it be true that the justice ought to be present at the time appoint and if  they be not there it will be a good excuse for the party and upon a rejoinder  quod non object if the fact appear to be so the issue will be with he and the  party if be pleat may plead special that he attend at the time but the justice  be not present c and in such a case the justice be not oblige to do the first  act for there be no necessity that the justice shall be present if the party  do not come but it be sufficient if they leave one at the place to give they  notice if the party come and the party himself be oblige to do the first act  videlicet to attend at the time and place appoint therefore judgement for the  defendant