Duke must die, and die without Issue, or that Issue die without Issue, before the Appellant can take.
Decree affirmed.—The Owner says that the Appellant is not to have it till then. That there is not one Reason which can be urged against the Duke, but may with equal Force be urged against the Appellant in this Case. That the Respondent claims not by the Settlement, but as a Coheir, to have that which is not disposed of; and what is not so disposed, must descend or result for the Benefit of the Heirs. Wherefore it was prayed that the Decree should be affirmed; and it was affirmed.
The Bishop of Exeter & al' v. Sampson Hele [1693].
[15 Lds. Jo. 395. Benefices Act 1898 (61 & 62 Vict. c. 48), ss. 2, 3, 4.]
Writ of Error upon a Judgment in a Quare Impedit in C.B. affirmed in B.R.
The Case upon the Record was thus:
3 Lev. 313. Lutw. 1094. 4 Mod. 134. 2 Salk. 539. Carth. 311. [Nel. Lut. 348.] Quare Impedit. How the Sufficiency in Learning of the Presentee to a Benefice is to be tried.—Hele brings his Quare Impedit, as seised of the Manor of Southpole in Com' Devon', to which the Advowson of the Church of Southpole belongs, in his Demesne as of Fee, and so being seised he presented thereunto, when Vacant, John Ult', his Clerk, who at his Presentation was admitted and instituted; that it became void by his Death, and belonged to him to present; and that the said Bishop and Gauwyn Hayman hinder him, ad dampn' &c.
The Defendants came and defend vim & injur' quando, &c. and the Bishop says, Actio non, quia dicit, that the Church is within his Diocese, and that he claims nothing in it but as Ordinary; that 'tis a Benefice with Cure of Souls; that 15 Aprilis Anno Willielmi & Maria secundo it became void by the said Incumbent's Death, he being Ordinary, after which Vacancy, and within six Months prox' post mortem præd' J.V. viz. 19 May eodem Anno, the Plaintiff presented to him one Francis Hodder as his Clerk, which said Francis was a Person in Literatura minus sufficiens seu capax [89] ad habend' dictam Ecclesiam. Super quo præd' Episc', as Ordinary of the Church aforesaid, did according to the Ecclesiastical Laws examine him of his Ability and Fitness in that Behalf, ut de jure debuit, and upon such Examination, he found him to be a Person in Literatura insufficient ac ea ratione fore personam inhabil' & minime idoneam ad habend' the said Benefice with Cure of Souls, per quod the said Bishop as Ordinary did refuse him; of which, after the said Refusal, the Bishop within the six Months, did give the Plaintiff Notice, viz. 20th June Anno supradict', and that he might present another Person to the said Church; that the Plaintiff did not present any other within the six Months, per quod it belonged to the Bishop, as Ordinary of the Place, to Collate a fit and proper Person; and thereupon he did Collate Gauwin Hayman, who was Instituted and Inducted. Et hoc parat' est verificare; unde pet' Jud', &c.
The Incumbent pleads the same Plea, Mutatis mutandis.
The Plaintiff replies, That Hodder at the Time of the Presentation, and long before, was Vicar of the Parochial Church of Uxborough in Com' præd', and to that Vicarage lawfully Admitted, Instituted and Inducted, & homo Literatus infra Sacros ordines constitut' & in verbo Dom' Doct' & instruct, & post Doctrinæ & Literat' examen ordines Sacerdotales per ordination' Episcopalem adeptus fuit, & intuitu Spiritualis Doni & favente Deo in ea parte contingent' ad prædicand' verbum Dei in & per Diocesim Exon by Anthony late Lord Bishop of Exon Licentiat, curam habens & exercens Animar', & Divino Servitio per multos Annos assidue incumbens, & Divinum Servitium Celebravit & adhuc Celebrat, & ad Divina Servitia Celebrand', scil' in legendo, Orando, Prædicando, & Sacra Ministeria ministrand', satis & sufficienter Literatus virit apud Southpole præd'. Et hoc' par est ver'; unde petit Jud', &c.
The Defendants rejoin, That protestando, that Hodder was never Vicar of Uxborough, nor in Orders, nor Licensed to Preach; pro placito they say, that
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