Calvert against kitchen and parkinson trin James in the exchequer in trespass  by Calvert against kitchen and Parkinson upon a special verdict these point be  move and argue by the council at bar and first the case in substance be that  one Parkinson be a devisee of the next avoidance of the parsonage of d the  which church become void by the death of the incumbent and after one a and the  say Parkinson simoniacally agree that the say kitchen shall be present by the  say Parkinson to the say church aforesaid and that after kitchen not know of  this simoniacal agreement be present institute and induct to the church  aforesaid and all this be after the statute of Elizabeth cap and after queen  Elizabeth ntending that this presentation belong to her by reason of this  presentation for simonies by force of this statute of the Elizabeth present  one b and before that b be admit and institute lane the queen die and now the  king present Calvert with out any recital or mention of the presentment make  by the queen and without any revocation actual make of the say first  presentation and thereupon Calvert be admit and institute and for the tithe as  parson he bring trespass Hitchcock intend three question as he say but move  also other thing first if a devisee of the next avoidance be a patron within  the intent of this statute of the Elizabeth cap second if within the say  statute here be simony in the patron and not in the parson if this ought to  prejudice the parson or not three if the king ought to present by this lap  after the queen have make presentment without recall of the former  presentation or if the presentation of the queen ought to be adjudge a turn to  the first matter he say that a next avoidance be a thing devisable well enough  within this statute for the truth be it be not a thing of any value in the  account of law and therefore it be no prejudice although that the three part  do not descend to the patron for the commonlaw intend it to be of no value and  he say that the form of confer to a benefice be ad church c as appear by e foe  and he vouch Bracton to prove that the patron have nothing but to provide lane  er p that the church shall be full c and to prove that this be a thing  devisable he say that it be so adjudge in the common plea mich and Elizabeth  rot but admit that here be not any patron by reason of any devise then if he  who present be a disturber and have acquire this patronage here vice by  usurpation then that also be give to the king within the intent of this  statute by reason of this agreement for simonies and therefore he say that if  he who have but a nomination corrupt agree to make a presentation or  nomination this nomination shall be forfeit to the king within this statute as  it be say in Plowden in hare and Bickleys case he who have the nomination have  the effect of the advowson and also he observe the word of the statute which  say that if any person do for money c present any one c that every such person  presentation shall be void and it shall be lawful for the king to give the  same benefice for that turn c so that if he have title or not yet this turn be  forfeit to the king as by the statute of James cap it be provide if any good  which ought to pay subsidy be lie on the land the subsidy not pay c the same  good shall be forfeit it have be agree that if a stranger who have nothing to  do with these good cause they to be lie upon the land that they shall be  forfeit against the owner as it be admit in Levison and Kirks case in James  and so here in respect that the true patron suffer a usurper to present and  his presentee to be admit and induct this turn shall be forfeit to the king by  reason of the simony against the rightful patron and be conceive that although  that the presentee in this case be not party to this corrupt agreement yet he  shall be prejudice by it although not so prejudice thereby but that he may be  capable to be present again to the same benefice but here vice the  presentation of he be void for as Littleton say the presentee ought to accept  the parsonage subject to such charge as the patron please who in the time of  vacation have power to charge it and so by his act have make it subject to the  forfeiture and therefore the person who come under he shall be prejudice and  therefore he vouch the case in the h foe if a stranger agree to seize a infant  to the intent to feoff the infant although that the infant be not know of the  coven yet he shall not be remit because he come in under a wrong doer to the  three matter he say that the king may revoke his presentation and by the same  reason he may present another before his presentee be institute and to prove  it he say that a common person may recall his presentation before the  institution c and he vouch the book of the e title quare hinder the abbot of  Leicesters case although that dyer cite of it Elizabeth foe conceive the book  contrary but it seem to be in reason that the law be clear that a lie person  may change although that a spiritual person can and lane the reason be because  a lie person do not know his sufficiency peradventure at the first but a  spiritual person by intendment may inform himself thereof well enough and  therefore he vouch h and I h Kelloways report which prove that diversity plain  as he say then be think by the same reason if the king present one and die or  vary before institution that here he himself or his successor may present anew  and seem to he no question and to this purpose he vouch Elizabeth dyer foe  that he may repeal and it be not of necessity that this instrument which  purport the repeal shall be show to the guardian of the spiritualties and by  the Elizabeth foe in Coleshils case it be say that when the king have present  a repeal by he ought not to be admit after institution see for such matter in  the book also he vouch dyer Yattons case to prove that the king may repeal his  presentation by a new presentation without mention make of the former except  that the second presentation be obtain by fraud as there it be and he vouch  dyer goodman case and so he conclude Damport to the contrary there be two  point the first be the patron and a stranger corrupt agree to present kitchen  whereupon he be present if this shall be void against kitchen admit that the  queen have title to present and she present and die before admittance if the  king may present a stranger without mention the other presentation to be  repeal as to the first he say that at the commonlaw so if one be simoniacally  present yet this be not void until the presentee be deprive and if before this  statute such a corrupt presentment have be make the incumbent and ordinary be  free then no presentment shall ensue and be vouch the say of Linwood a author  of the civil law to be accord but if money be give by the friend of the  presentee and after the king have notice thereof and assent then it be not  punishable but pardonable lane er p at the discretion of the king and now by  he the statute provide no punishment for the person when the patron only  consent to the simonies for he observe that after the say statute of Elizabeth  have appoint a punishment for the patron then in the last part of this branch  the word be the person so corrupt take c shall be incapable of the benefice  aforesaid and so it seem that the intent of the statute be not to punish any  party but he that be to the simonies and this be also explain to be so by  other clause in the statute for another clause inflict punishment upon the  ordinary if there be any corruption in he and another clause inflict  punishment upon he who be party to a corrupt resignation and so in all the  clause those only who be partaker of the crime shall be punish and to prove  that such construction have be make upon penal statute that he only shall be  punish who have notice of the crime he vouch Littleton who say that upon the  statute of Gloucester notice be requisite or otherwise no default also he  vouch to this purpose the case of Pickering in Elizabeth dyer foe a lie person  present a bastard to a benefice who be admit accord c and in a suit thereupon  issue be admit to be take if the patron know that he be a bastard so if he  have no notice thereof then there be no default in he and he vouch e to this  purpose e title consultation and he well agree close and Pomcoyes case now  late adjudge which be that sir George caryi be seize of a advowson grant the  next avoidance to his second son and die and after the son corrupt agree with  I S to procure the say I S to be present to this benefice and the second  brother know thereof it be agree that for the perfect of the agreement the  second brother shall surrender his grant and interest to the elder brother  which elder brother not know of the say corrupt agreement present the say I S  who be institute c all shall be void for he be present here by reason of this  corrupt agreement between the patron who then be and the parson and the elder  brother be only use to convey a have gift by a good band and all have  reference to the corrupt agreement with the assent of the patron who then be  but here in our case be no agreement assent unto by lane the parson and this  diversity also seem to be good that if a have the presentation and b the  nomination to a benefice and the presentor upon a corrupt agreement make a  presentation unknown to the nominator here the nominator shall not be  prejudice within this statute as to the second matter it seem that by the  demise of the queen this presentation be not countermand or repeal in law and  therefore he say that he will agree that if the queen have make such a act  which be only a bare authority without interest this will determine by her  death as it be rule for a letter of attorney to execute livery of duchy land  for this be a bare authority and be a mean to do a thing to her prejudice and  be agree that by implication or without cause a common person can not vary  from his presentation as if a feme sole present and intermarry this be not  control by her marriage for it be a thing which be not to her prejudice and be  vouch cook lib force and Hemlins case and one mark ogle can see prove that the  death of a common patron be no revocation of his presentation for if a man  present and die if it be a disturbance his executor may have a quare hinder  and much more in the case of the king who die but he well agree that the king  may have repeal his presentation and after have resume it again which prove  that it be not a mere authority but mix with a interest for a authority revoke  can be revive but without actual repeal it be not to be avoid and therefore he  vouch sir Thomas wroths case in Plowden foe that if the king grant to one  licence to purchase land in respect that by a mean this noth acquire a  interest to a party this noth not determine by the demise of the king although  the grant be not for the king and his successor so here this presentation be a  mean to give a interest to the party and therefore be not determine by the  demise of the king and he vouch I man dyer fol and so if it be a licence  dispensative this be not determine by her death and he vouch e foe cite in sir  Thomas wroths case see more after