Henry, Lord Bishop of London, and Peter Birch, D.D.,—Plaintiffs; v. Attorney General pro Domino Rege & Regina [1694].
The Prerogative of the Crown in presenting to Benefice where it promoted the last Incumbent. [2] Salk. 540. 3 Lev. 377, 382. 4 Mod. 190, 200. 1 Show. 413, 493.,—Writ of Error to Reverse a Judgment given in B. R. in a Quare Impedit. The Case upon Record was thus: The Declaration sets forth the Act of Parliament, which Erects and Constitutes the Parish of St. James within the Liberty of Westminster, out of the Parish of St. Martin, &c. prout, that by Force and Virtue of that Act, the said Parish was made, and the District therein named became a Parish, and Dr. Tennison Rector of the same; that he was afterwards Rite & Canonice consecratus Episcopus Lincoln', and that thereby the said Church became void, and thereupon it belonged to the King and Queen to present a fit Person ratione Prærogative suæ Regia Coronæ suæ Angl' annex', and that the Defendants hindered, &c.
The Defendants crave Oyer of the Writ, and it is general; Vic' Com ' Midd' salut' Præcip' Henric' Episcopo Lond' & Petro Birch Sacræ Theologiæ Professori quod juste & sine Dilatione permittant nos præsentare idoneam personam ad &c. quæ vacat & ad nostram spectat donationem, & unde præd' Episcopus & Petrus nos injuste, &c. And then they pray Judgment of the Writ and Declaration, because that between the Writ and Declaration, there is a material Variance in hạc, viz. quod ubi per Breve præd' præd' Dom' Rex & Regina intitulant se ad Donationem præd', &c. pleno Jure, tamen per Narr' præd' iidem Dominus Rex & Domina Regina intitulant se ad, &c. ratione Prærogativa suæ Regiæ Coronæ suæ Angliæ annex' Unde pro variatione præd' inter Breve & Narr' præd' they pray Judgment of the Writ and Declaration aforesaid, and that the said Writ may be qualified, &c. The Attorney General Demurs, and the Defendants join; and there's Judgment to answer over.
[165] Then the Bishop Demurs generally, and Mr. Attorney joins, and Dr. Birch pleads that he is Incumbent, and then sets forth the Statute of H. 8. concerning Dispensations; and that after Dr. Tennison was elected Bishop, the Archbishop granted to him a Commendam Retinere, with Power to take and enjoy the Profits to his own Use, by the Space of seven Months.
That this Commendam was confirmed under the Great Seal, according to the Statute; and the said Dr. Tennison did enjoy the same accordingly, &c. Mr. Attorney Demurs, and Dr. Birch joins in Demurrer; and Judgment was given for the King, &c.
Argument for the Plaintiff in Error. Variance between the Writ and the Declaration, where fatal or not.—And now it was argued in the first place, That the Plea in Abatement was good; and if so, all that followed was Erroneous. And to make that Plea good, it was said that there is a Variance between the Writ and Declaration; that they are founded upon several Rights; that upon arguing the Merits of the Cause, it must be owned to be so, on the other Side.
That no Argument can be urged to maintain the Declaration in general, but the Jure Prærogativæ, and consequently it must be different from the Title or Interest pleno Jure.
They have said below that tho' the King's Interest is bound by Statutes, yet his Prerogative is not. This Distinction of the Rights must be allowed, or else the main Judgment is not justifiable; and that there is such a Distinction, appears in Gaudy and the Archbishop of Canterbury's Case in Hob. 302. by the Presentation there recited, which was drawn by the King's Counsel; 'tis ad nostram Præsentation' pertinet, sive ex pleno Jure, sive ratione Prærogativæ.
By Bracton 415. If the Writ be founded on one Right, and the Declaration on another, the Writ must be abated, as in Case of Executors and Corporations. In some Cases it must be agreed, That the Writ may be general, and the Count Special; but none of those Cases will reach to this, where several Rights are pretended. 'Tis no Objection to say, That there is no Writ in the Register for this; for that's
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