Marshall, Clerk, v The Bishop of Exeter and Another
| Jurisdiction | England & Wales |
| Judgment Date | 25 February 1860 |
| Date | 25 February 1860 |
| Court | Court of Common Pleas |
English Reports Citation: 141 E.R. 633
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 28 L. J. C. P. 300; 7 W. R. 525. Approved, Carlisle v. Whaley, 1867, L. R. H. L. 416. For subsequent proceedings see 7 C. B. N. S. 653.
mabshall, Clerk, v. the bishop ok exeter and another. May 26th, 1859. [S. C. 28 L. J. C. P. 300 ; 7 W. R. 525. Approved, Carlisle v. Wkalei], 1867, L. E. H. L. 416. For subsequent proceedings see 7 C. B. N. S. 653.] Quare impedit is within the 80th section of the Common Law Procedure Act, 1852. (juare impedit. The first count of the declaration stated, that Henry Bishop of Exeter and John Henry Coats Borwell, clerk, wore summoned to answer Peter Charles Marshall, clerk, of a plea that they permit the said Peter Charles Marshall, clerk, to present a tit person to the parish church of St. James and Cuby, otherwise Keby, otherwise Tregoriy, otherwise Tregony Martin, otherwise Tregony and Cuby, in the county of Cornwall, which is vacant, and belongs to his presentation; and thereupon the said Peter Charles Marshall, clerk, by Henry Dupleix, his attorney, complains, For that whereas he the said Peter Charles Marshall, to wit, on the 15th of November, 1855, was seised of the rectory and vicarage of St. James and Cuby, otherwise Keby, otherwise Tregoiiy, otherwise Tregony Martin, otherwise Tregony and Cuby, in the county aforesaid, whereunto the advowson of the rectory and vicarage of the church aforesaid did and doth belong, in his demesne as of fee and right; and, being so seised thereof as aforesaid, he the said Peter Charles Marshall, clerk, afterwards, to wit, on the day and year last aforesaid, [717] presented to the said church and rectory and vicarage himself the said Peter Charles Marshall, clerk, as his clerk, who, on the presentation of himself the said Peter Charles Marshall, clerk, was admitted, instituted, and inducted into the same, in the time of peace, in the time of our Sovereign Lady the now Queen of Great Britain and Ireland ; and, he the said Peter Charles Marshall, clerk, being so seised of the said rectory and vicarage in the county aforesaid, whereunto the advowsou of the said rectory and vicarage of the church aforesaid did and both belong, the said church and rectory and vicarage, to wit, on the 3rd of August, 1857, becanu) vacant by the resignation of the said church and rectory and vicarage then duly made by him the said Peter Charles Marshall, clerk, to, and accepted by, the aforesaid bishop as and then being Bishop of Uxeter, and ordinary in that behalf, whereby it then and there belonged and now belongs to the said Peter Charles Marshall, clerk, to present a fit person to the said church and rectory and vicarage, so being vacant as aforesaid: But the said Bishop and John Henry Coats Borwell, clerk, will twt permit him the said Peter Charles Marshall, clerk, but unjustly hinder him. , The second count stated, that whereas also he the said Peter Charles Marshall, elerk, to wit, oil the 15th of November, 1855, was seised of the advowson of the church, rectjory, and vicarage of St. James and Cuby, otherwise Keby, otherwise Tregony, otherwise Tregouy Martin, otherwise Tregony and Cuby, in the county aforesaid, as of gross by itself, as of fee and right; and, being so seised thereof as aforesaid, he the said Peter Charles Marshall, clerk, afterwards, to wit, on the day and year laat aforesaid, presented to the said church and rectory and vicarage himself the said Charles Peter Marshall, clerk, as his clerk, who on [718] the presentation of himself the said Peter Charles Marshall, clerk, was admitted, instituted, and inducted into tha same, in the time of peace, in the time of our Sovereign Lady the now Queeu of Great Britain and Ireland: and he the said Peter Charles Marshall, clerk, being so seised of the said advowson as in this count aforesaid, the said church and rectory and vicarage, to wit, on the 3rd of August, L857, became vacant by the resignation of the said church, rectory, and vicarage then duly made by him the said Peter Charles Marshall, clerk, to, and accepted by, the aforesaid bishop as and then being Bishop of Exeter, and ordinary in that behalf, whereby it then and there belonged anc now belongs to the said Peter Charles Marshall, clerk, to present a fit person to th* aaid church.and rectory and vicarage, so being vacant as aforesaid ; but the said Bishop and John Henry Coats Borwell, clerk, will not permit him the said Peter Charles Marshall, clerk, but unjustly hinder him: Wherefore he the said Peter Chariot Marshall, clerk, saith that he is injured and hath sustained damage to the value of 30001., and therefore he brings his suit, &c. 634 MARSHALL -0. THE BISHOP OF EXETER 6 C. B. (N. 8.) 119. Plea,-the said Henry Bishop of Exeter and John Henry Coats Borwell, clerk, by Frederick Sanders, their attorney, come and defend the wrong and injury when, &c. ; and the said John Henry Coats Borwell says that he is parson impersonate of the said church in the declaration mentioned, by the collation of the said bishop; and the said bishop says that the said church is in his diocese, and that he hath not and doth not claim to have anything in the said church, except the admission, institution, and induction of parsons to the said church, and such other thinga as belong to the ordinary of the place as ordinary : And the defendants further say, that, after the said church became vacant and void by the resignation of the plaintiff, then and [719] thence and still being a clerk iti Holy Orders, and the acceptance of such resignation by the defendant Henry Bishop of Exeter in the declaration mentioned, to wit, on the IGth of January, 1858, the plaintiff, being so seised as in the declaration mentioned, by writing under his seal, bearing date, to wit, the day and year last aforesaid, presented to the said bishop, so being such ordinary as aforesaid, one John Reid as his clerk, and requested the said bishop to admit, institute, and induct the said John Reid as his clerk to the said church so vacant and void as aforesaid: And the defendants further say that the said John Reid had not been ordained by the said Bishop of Eseter, or by any former or other Bishop of the diocese of Exeter, and that, at the time the said John Reid was so as aforesaid presented to said bishop, and of such presentation so being made, to wit, on the day and year last aforesaid, the said John Reid was a clerk in Holy Orders, and then came from a diocese in England other than the diocese of Exeter, to wit, from the diocese of Manchester, and not elsewhere or from any other diocese, and in which diocese he had then lately been a minister of the Church of England, and had then lately held a benefice and cure of souls ; and the said John Reid was then wholly unknown to the said Henry Bishop of Exeter: And thereupon, afterwards, to wit, on the day and year last aforesaid, the said John Reid, so being presented upon such presentation as aforesaid, and so coining from such other diocese as aforesaid, applied to the said Bishop of Exeter to admit, institute, and induct him the said John Reid to the said church, so being vacant and void as aforesaid ; but the said John Reid did not bring or produce to the said Henry Bishop of Exeter, from the bishop of the said diocese whence he came, and wherein he had lately held such benefice and cure of souls as aforesaid, and been a minister as aforesaid, [720] to wit, from the Bishop of Manchester, any sufficient testimony, according to the ecclesiastical laws of England, of his the said John Reid's honest conversation, ability, and conformity to the ecclesiastical laws of England, or any such testimony as he the said bishop was bound and ought by the laws ecclesiastical of England to require and have and receive, from the bishop of the diocese from whence the said John Reid had come, and in which he so had lately held a benefice and cure as aforesaid ; but the said John Reid then, to wit, on the day and year aforesaid, when he so applied to be admitted, instituted, and inducted as aforesaid, brought testimony from the bishop of the diocese aforesaid, to wit, from the Bishop of Manchester, which he the said Henry Bishop of Exeter held not to be, and which was not, sufficient testimony according to the ecclesiastical laws of England, of his the said John Reid's honest conversation, ability, and conformity to the ecclesiastical laws of England, or such testimony as he the said Bishop of Exeter was bound and ought by the laws ecclesiastical of England to require and have and receive from the bishop of the said diocese from whence the said John Reid had come, and in which he had so as aforesaid lately held a benefice and cure as aforesaid; and thereupon ihen the said Henry Bishop of Exeter, to wit, on the day and year last aforesaid, informed the said John Reid that the testimony so brought by him from the said Bishop of Manchester was not testimony which he the said Henry Bishop of Exeter deemed and adjudged to be, or which was, sufficient testimony of his the said John Reid's honest conversation, ability, and conformity to the ecclesiastical laws of England, or such testimony as he the said Bishop of Exeter waa bound and ought by the laws ecclesiastical of England to require and have and receive from the Bishop of the diocese from whence he [721] the said John Reid; had come, and in which he had so lately held a, benefice and cure of souls as afpresaid; and the said Bishop of Exeter required further and sufficient testimony from the said Bishop of Manchester according to the ecclesiastical laws in that behalf, to wit, testimony of his the said John Reid's honest conversation, ability, and confortnity to the said ecclesiastical laws, of which the said John Reid then had notice, to wit, from the said Henry Bishop of Exeter; and thereupon, to wit, on the 60. B.(N.S.)7ffl MARSHALL V. THE BISHOP OF...
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