Sir William Elvis Knight, against The Arch-bishop of York, Martin Taylor and Thomas Bishop, Clerks
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1792 |
| Date | 01 January 1792 |
| Court | Court of the King's Bench |
English Reports Citation: 80 E.R. 458
King's Bench Division
392. sir william elvis Knight, against the arch-bishop op york, martin taylor and thomas bishop, Clerks. Pasch. 17 Jac. Rot. 877. Quare imped. Nottingham. Jones, 4. Incumbent, Br. 4. Ant. 102. Sir William Elvis brings a quare impedit to present to the church of Badworth, and declares, that Sir Gervas Elvis Knight, was seised of the manor of Sanby, to which the said advowson is appendant in fee, and held the same of the King, and so seised, did present oue George Turpin his clerk, who was admitted and instituted, &c. And the said Sir Gervas so seised was attainted of felony, and executed; by force whereof, the King was seised of the said manor ad quod, &c. in fee, in right of his Crown, and so seised, did grant the manor and advowson thereunto belonging, to the plaintiff and his heirs, atleo plene & integre, &c. by vertue whereof he entered, and was seised thereof in fee ; and so being seised, the church became void by the death of Turpin, whereby it belonged to the plaintiff to present, and the defendants did disturb him, to the damage of five hundred pounds. Actio non ; confesseth the seisin of Sir Gervas Elvis, and the presentation of Turpin, and the attainder and execution, as the plaintiff had set forth in his declaration : but further saith, that by vertue of the said attainder, the King was seised of the manor ad quod, &c. in fee, in right of his Crown, and so seised, the church became void by the death of Turpin, whereby the King, to the church being void, did present to the said archbishop the said Thomas Bishop, whom he caused to be admitted, instituted and inducted, as it was lawful for him to do: without that, that the King did grant to the said William Elvis the advowson, prout, &c. Whereupon the plaintiff demurs in law generally. That he ia parson impersonee of the church aforesaid, by the presentation of the King, and says, quod actio non, because he says, that Gervaa Elvis was seised of the said advowaon, as of the advowson in gross, and confesseth the attainder, and that after the death of Turpin, the King did present the said Bishop, who was admitted, instituted and inducted, &c. and was parson impersonee at the time of the purchasing of the writ, &c. without that that the advowson aforesaid did belong, and as yet doth belong to the said manor of S. prout, &c. Whereunto the plaintiff replies, that Bishop is not parson impersonee of the presentation of the King, prout, &c. Ideo petit quod inquiratur, &c. where-[31G]-upon Bishop demurs in law, that one John Sidenham gentleman, was seised of the said manor ad quod, &c. in fee, and so seised in the 16 year of Q. Eliz. by indenture, &c. did grant to Richard Ridley and Eleanor his wife, the said advowson for the three first avoidances. The church became void by the death of one Lilly, which was the first avoidance, &c. To which church, the said Sidenham seised the said manor, and (having no right to present) did present one Richard Clifton his clerk, and the said Clifton being rector of the said church, the said church became void, by the deprivation of the said Clifton, which avoidance was the second avoidance, &c. And the said Sir Gervas Elvis, father of the plaintiff, being seised of the manor in fee, and having no right to present to the said church, being void, did present to the said chui'ch, being void, the said George Turpin, qui, &c. And that he the said Turpin being rector of the said church, and that the said Ridley and his wife, being possessed of the said advowson, the said Ridley dieth, and Eleanor survives, and was solely possessed of the advowson, and first makes Martin Taylor her executor, and dieth, whereby he was possessed, and so the church became void by the death of Turpin, which was the third avoidance, &c. whereby the defendant Taylor did present the said Bishop his clerk, as it was lawful for him to do, and demands judgment, si actio, &c. Upon which the plaintiff demurs in law generally. HOBAKF, 317. MARTIN TAYLOR AND THOMAS BISHOP 459 The first point is, whether this plea of the archbishop, to eounterplead the title of the plaintiff to the patronage, be good or no. And I hold it is not good: wherein let us consider how it stood at the common law, and what alteration is made, as to this case by the statute. And first, for the common law it was plain, that neither Ordinary, as Ordinary, neither before collation nor after, nor incumbent, either of his collation, nor of the presentation of any other, could plead to the title of the patronage, whereof the reason was pregnant, because neither of them had interest in the patronage, and therefore could not dispute that, with which they had nothing to do; which is the reason that his collation by lapse (or before the lapse incurred, though it be a wrong) doth not displace the patronage, but shall be said to be done in the right of the very patron, being nothing but institution and induction, which are his office as Ordinary, as well upon presentation, as without, though he doth them out of season. And though this seemed, and was indeed extreamly mischievous, yet the law would not let in a thing so absurd, and against the law of nature and reason, as to admit two to dispute the interest of a third. This mischief notwithstanding hath a kind of remedy in some cases, for if the quare impedit were brought against the bishop, and tho incumbent, or the incumbent alone, leaving out the patron, the incumbent might havo pleaded in abatement, that he was parson impersonee, of the presentation of such an one, who was alive and not named, and then the writ should abate. So that though he could not plead himself to the patronage, yet he needed not to answer without the patron, which could plead to the right of his patronage, and so defend his clerk. But yet there were two cases of mischief still, the first, when the patron was joined, if he would collude or plead a false and faint plea, and give way to the plaintiff, the incumbent was without remedy, whereof the common law took little regard, both for the reason before spoken of, and because coming in by him, he was subject to his plea, as lessee for years, and could not satisfie at the common law. And secondly, though it were regularly true, that the patron was to be named, so that there was a means to defend the title, yet when the incumbent came in by the King, or Pope, they could not be named ; and yet though the mischief to the incumbent was inevitable, yet the common law would not break her rules to receive the incumbent to plead the title of the patronage, no not in that case. [317] This being so in the case of the incumbent, who had the whole interest of the church vested in him, and that by the presentation of his patron, by whose title ha was to stand or fall, that he could not plead the patron's title. Much less was the Ordinary to do it, for three reasons. He had nothing to do with the patronage, neither in interest nor dependency, as the incumbent hath. He hath no medling with the church, or the fruits of it, as the incumbent hath. And if the Ordinary, having collated by lapse, could not plead the title of the patronage to maintain it (as by the statute appears) much less could he do it before the lapse incurred. The law hath provided for him (if he will contain himself within the bounds of an Ordinary) sufficient means to save himself from making himself a disturber, and hath pleas to express and deduce the same, which the incumbent hath not. For if the incumbent hath accepted the benefice of his...
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