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A32245 The case and argument against Sir Ignoramvs of Cambridg by Robert Callis. Callis, Robert, fl. 1634. 1648 (1648) Wing C303; ESTC R14450 26,542 42

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her in dower then she ought to have but the heire the assignor might himself so if an Infant alien and dye without heire the Lord by escheat cannot enter for the Law doth not transfer such titles over yet an assignee in Law may take advantage of a condition or covenant Quia fortior potentior est dispositio legis quam hominis But the case in 8. Eliz. in Dyer fol. 252. comes fittest to this purpose wch is that there was a donative Chauntry and the Priest made a Lease for yeares and the Patron in taile confirmed the same and after the Chauntry was given to the King by 1. E. 6. of Chauntries And whether the King might avoyd the said Lease and that such title of avoyding the same be transferred over to the King by the said Statute of Chaunteries or not was the point And it was holden that it was but because there was a Fine with Proclamation after shewne forth which did barre the said entaile It therfore was holden that the King was barred as the issue of the Tenant in tayle the confirmer was which comes directly to my purpose For 〈…〉 Statute which is the act of the whole Realm may and will set the party to whom the thing is assigned in as good plight as the party was in from whom the same was taken So in our case when as Monsieur Avidus had presented to the Church and that he could not repeale his presentation but that he was bound thereby The revocation and repeale of this presentation could never by the act of 3. the King be transferred over to the University because the Act of Parliament doth settle the same no otherwise in them then it was in the party selse from whom it was taken And so the presentment remaining in force till the death of Monsieur Avidus the Recusant when the Elect after refused the person presented because as then the Recusant was dead It could not vest in the University of Cambridge but rather in the Executors of Monsieur Avidus And so for these causes I take it that the University have no right to the said avoydance and that they could not conferre the same upon their Clark Sir Ignoramus if so be there had been no defect in the Clark himselfe which after shall be found to be manifest against him notwithstanding it were admitted that the University had a good title And so I will now passe over to the other points in the case which I intend to handle as shortly as I can The next thing to be handled in my case is whether the awarding of the Iure patronatus be well or not and what nature the same is of and what points be enquirable thereby and what manner of men the Jurors should be which are to be used therein In the handling whereof I must use practise with Law and where one serves me not I shall make use of the other A jure patronatus is properly to be awarded where the Church is litigious between divers Patrons and the Bishop stands in doubt which of them hath the true right and so cannot tell without some perill to himselfe which of their Clarks he should receive and admit of Then he may to save himselfe free from being a disturber award a Commission of a jure patronatus And I doe find in our books as in 22. H. 6. 44. and 33. H. 6. fol. 12. and 32. and 34. H. 6. That a Church may be litigious Before the awarding of the jure patronatus As also after the awarding therof And it may be made litigious by the awarding thereof 1. Before as where diverse and sundry Clarks be presented by diverse and severall Patrons as it is in my case there the Church is litigious 2. So is it if two Commissions be awarded at the suite of two severall Patrons and in the one it is found for the one party and in the other for the other party here the Church resteth litigious by this uncertaine verdict and by these severall presentments 3. Also if in a jure patronatus it be found for one and before the Bishop be requested by the Clark for whom it is found to admit him another doth present here the Church is litigious after the jure patronatus awarded And I collect by the book of 21. H. 6. 44. That if I. S. present his Clarke to the Bishop that if the Bishop doubt of his title he may award a Commission of jure patronatus notwithstanding that not any other Patron doth present And this I collect by the said books for that it is there said That if two Patrons present severally the Bishop shall award two Commissions of jure patronatus that is one for either party And it is said in the said bookes that the Bishop is bound to admit the Clark of him for whom it is found If the Clark so require him which he must doe or otherwise the Bishop is not bound to admit him but may suffer the laps to incurre and take advantage of it But howsoever I hold it plainely the Church in my case was litigious and a jure patronatus was to be awarded Now then to declare the nature of a jure patronatus and the points of it come justly into our consideration It is therefore to be understood that a jure patronatus is a Commission awarded by the Bishop and under his seale directed to some expert in the civill Law to summon a Jury to enquire of these five points The points enquiorable in a jure patronatus be 1. Si Ecclesiam vacat quomodo vacavit 2. Quis Patronus ultime presentavit 3. Quis est verus indubitatus Patronus 4. Quis nunc debet presentare ad Ecclesiam nunc vacantem 5. De idonitate personarum presentat And the Jurors which are to be sworn upon this are the one halfe of them Clergy men Ministers and the other halfe be Lay men And a Minister must be the Foreman And so they are to be sworn alternatim One Minister and then a Lay-man and ●o till twelve or above be sworn on the Jury for being but an enquest of Office above twelve may be of the Jury I have seen sixteene of the Jury viz. eight Clarkes and eight Lay-men But as they were divided in their habit and profession so they were divided in their opinions for their verdict Clerici contra La●cos Laici contra ●leric●s I doe find in this case that the verdict which findes the speciall matter is superius patronatus which is effectuall in that point but whether this speciall matter leave it so at large 〈…〉 as that the Church remaine litigious still or no is a question of some moment It is cleere by 21. H. 6. That if two commissions be awarded and the one findes for the one party and the other for the other party here the Church remaines litigious still so that the Bishop may wel refuse them