coke b hall v bishop OF bath and well and thomas MAUNTON when by the judgement  in a quare hinder the inheritance estate or interest of the patronage be to be  divest he who present and his clerk receive ought to be name in the writ but  when the inheritance estate or interest of the patron shall not be divest by  the judgement then if another disturber be name in the writ it be not  necessary to name the rightful patron SC Leon say John hall bring a quare  hinder against the bishop of have and well and Thomas Maunton clerk defendant  for disturb he to present to the vicarage of Woollavington appendant to the  manor of Woollavington whereof the dean of Windsor be seize in his demesne as  of fee in right of his deanery and present Robert Pitman his clerk who be  institute and induct and convey that manor to the earl of Leicester by lease  for year who assign all his interest to George Sydenham Knt who grant it to  Christopher roll and during his possession the vicarage become void by the  death of Robert Pitman and the say Christopher roll present one John Davis his  clerk to the say vicarage who be admit c and afterward the say Christopher  roll do grant his interest in the say lease to the plaintiff and afterward the  vicarage become void by the deprivation of the say John Davis whereby it do  belong to the plaintiff to present and the defendant do disturb he to his  damage c to which the bishop plead that he claim nothing but as ordinary and  demand judgement if without special disturbance c and Thomas Maunton say that  be claim nothing in the advowson of the vicarage but that he be vicar of the  say church of the presentation of the say George Sydenham who be yet alive not  name in the writ and demand judgement of the writ the plaintiff to the bishop  plea pray judgement forasmuch as he claim nothing in the vicarage and it be  grant but to be remiss execution until c and as to the plea of coke report a  er p Thomas Maunton he do demurrer in law and the sole question of the case be  if the quare hinder lie against the bishop and the incumbent without name the  patron and it be resolve that the writ a shall abate and that the patron ought  to be name in the writ and that for two reason because the patronage will in  this case be recover against coke a he who have nothing in the patronage and  it be not reasonable that he who be patron shall be dispossess and oust of his  patronage when he be a stranger and not party to the writ and especial in this  case when he may be make party to the writ at the common a law the incumbent  can not plead any plea which concern the right of patronage and therefore it  will be against reason that he shall be only name in the writ who at the  commonlaw can defend the patronage and he who have the patronage and can plead  to the right of it omit in the writ for at the commonlaw every one shall plead  a plea which be fit for he and pertinent to his case as in assize against  seize b and tenant c the tenant shall plead a plea which concern the tenancy  and not the seize and the incumbent at the commonlaw shall not plead to the  right of patronage in which he have nothing but the patron shall plead to that  and the mischief be that c by the faint plead or confession of the patron in a  quare hinder the incumbent be without remedy as the book be adjudge in Edward  b which be before the statute of Edward vide Henry a Henry a b a c but the  stat of Edward cap enable the d possessor c which be as much as to say the  incumbent after induction as it be hold in Henry dyer to counterplead the  title take for the king and to have his answer and to show and defend his  right upon the matter although he claim nothing in the patronage and by equity  he shall plead against all common person as the book be in Henry a b a c Henry  a Henry Henry vide Edward Edward Edward Edward a b Richard incumbent Henry h  Henry Henry Edward Henry Henry Statham and it be to be observe that always  when the incumbent plead in bar he first say that he be person e impersonata  church prd c by which it be imply that he be admit institute and able to plead  in bar sure against theKing that he be admit institute and induct and against  a common f person that he be admit and institute for then be church full et  consulta against a common person as it be hold in h h e b e e e a e c but this  difference in the case at bar be take and agree that when the inheritance  estate or interest of the patron in the patronage be to be divest by the  judgement in the quare hinder bring by I S there I n a Cr James Fitzherbert  brief Br quare hinder lev a hob Anders e a Doct pl Leon e a b per Wilby b h b    light b b Inst c e a b d hob Doct pl hob Leon dyer pl Jones e Doct pl f n b  king Inst roll   light b a b Cr James f   a Inst roll   light b a Cr James  contraWats g Noy roll Rep show lev hob Noy h Cr James Fitzherbert brief Br  queen hinder g who present and his clerk receive ought to be name in the writ  but when the inheritance estate or interest of the patron shall not be divest  by the judgement then if another disturber be name in the writ it be not  needful to name the rightful patron in the writ and with this difference agree  our book for in e a one bring a quare hinder against another the defendant say  that he claim nothing in the patronage but say that the bishop do present he  by coke report b er p lapse judgement if c and there Belknap pray a writ to  the bishop because he have disclaim in the patronage and the court will not  grant it because inasmuch as neither the patron nor the bishop who in the same  case be coke b in the place of the patron be not name in the writ it be  adjudge that the writ shall abate and if such writ shall be maintainable every  patron by covin between a stranger and the incumbent may be oust of his  advowson and therewith agree h a b a c h b and a h but in h there in a how imp  because the presentation be only recover and not the advowson nor the patron  put out of possession the writ be adjudge good without name of the patron if a  quare hinder be bring against the patron and the incumbent and the patron die  pen the writ the death of the patron shall not abate a Leon say Cr Elizabeth  Cr car Siderf Goldsb a the writ as it be adjudge in h for there be two  mischief one if the writ shall abate disturbance will be unpunished and  although the writ be well bring yet the plaintiff will be without remedy  because there want a disturber and of the other part the other mischief be  that if the writ shall not abate but the plaintiff proceed to judgement and  execution the very patron will be out of possession and forasmuch as in the  one case if the rightful patron shall be out of possession he have remedy by a  writ of right to recontinue the advowson and in the other case if the writ  shall abate the plaintiff will be without remedy which will be the great  mischief and for this cause the writ shall stand and shall not abate and  therewith agree h b h h and a quare imp well bring by diverse as coparceners  or jointtenants c shall not abate by the b Cr James count dyer pl dal f n b Cr  car   b more Cr Elizabeth   light a b death a by stat W c S if there be two or  more plaintiff or defendant and one or more of they die if the cause of action  survive the suit shall not abate a of one of they nor a quare hinder bring by  the husband and wife shall not abate by the death of the wife because  otherwise the plaintiff if the six month be pass will be without remedy as the  book be in f n b b e h h h h h e e but if the king present and his clerk be  admit and institute c there the quare impede may be bring for necessity  against the bishop or incumbent for it do not lie against the king so of the  pope if he have usurp h h c vide e c say e b a b Fitzherbert queen imp Br  queen imp Br mortmain c a b the king bring a quare hinder against W Dawtree of  the church of Retfield and make his title forasmuch as Hamond bishop of  Rochester have present to the say church by usurpation be void the advowson of  which of right do appertain to three daughter and heir his clerk who be admit  institute and induct and afterward the incumbent resign and the successor  present another who be admit institute and induct and he die by which it  belong to the king to present forasmuch as the bishop have gain that advowson  to he and his successor without licence by which the advowson be become in  mortmain the defendant plead that he be parson of the presentment of W  Wyclesey predecessor of the bishop that now be Thomas by name so that the  patronage be in Thomas who we conceive ought to be name in the writ by which  we conceive that our lord the king to this writ in which the patron be not  name ought not to be answer for coke a we conceive that a quare hinder do not  lie against the incumbent alone without name the patron where it be express  show that there be a patron who may plead in bar of the plaintiff or other  thing to oust the king of the action which lie not in the knowledge of the  incumbent to plead and it be adjudge that the king writ be good against the  incumbent alone because he may give by the statute what answer he will alone  in maintenance of his possession of his church and the now bishop who be  successor be no disturber for the defendant come in by the predecessor and  therefore shall not be charge with damage or cost and afterward the plaintiff  John hall perceive coke report b er p in the principal case the resolution of  the court discontinue his suit and lose his presentation that vice