Nicety of Pleading the Judgments of Courts lessened by Degrees.—Besides a greater Latitude and Generality hath of late been allowed in pleading of Proceedings in Courts, and before Judges, than formerly. In ancient Days, if a Man pleaded a Judgment in a Court in Westminster-hall, they set forth the whole; then they came to allow of a Taliter fuit processum, and an Abridgment of the Proceedings; then came a Recuperavit only: And this was because that all Proceedings in the superior Courts were to be presumed regular, till the contrary were shewn. But this was denied a long while to inferiour Courts, because these were tied to stricter Forms, and therefore were still forced to set forth the whole: Then they allowed a Taliter fuit processum for them, provided still they were Courts of Record. But now they allow it in pleading of a Justification upon a Recovery in an Hundred Court; because the whole must be given in Evidence. So that such a formal Nicety in Pleading is not generally required now as was formerly. Besides, in Matters triable by the Spiritual Law, there is always less Particularity required in Pleading, than in others triable in the Courts Temporal: As in Bastardy, Divorce, Deposition, Literature, Profession and the like, its enough if so much be alledged, that they may write to know whether the Fact be so or no; and upon a Return thereof that 'tis so, they can give Judgment. Now if his Grace my Lord Archbishop, in this Case, upon Examination had returned that this Presentee was in Literatura minus sufficiens, as undoubtedly he would, (and so the Plaintiff thought, otherwise he would have joined Issue) and so ea occasione inhabilis, then unquestionably Judgment must have been for the Plaintiff in Error: For Default of Learning is a good Cause of Refusal, and must be agreed to be so. The Rule laid down by my Lord Anderson, 3 Leon. 200. is, That in Matters triable by our Law, all things Issuable ought to be specially alledged, in order to have a convenient Trial: But in Matters Spiritual the Law is otherwise: Because there's no Peril in the Trial. And therefore if certain enough to ground a Certificate, it is sufficient.
[95] My Lord Hob. 296, in Slade and Drake's Case, saith, That in pleading a Divorce, you must shew before whom it was, 11 H. 7. 27. but you need not shew all the Proceedings, as you should of a Recovery at Common Law. And the Reason why you must shew before whom, is only that it may be known, who is to try and certify it. In Burdell's Case 18 E. 4. 29, 30. 'tis clear, that in all Spiritual Acts triable by the Spiritual Law, it is necessary to plead no more than what may give the Court ground to write to the proper Ecclesiastical Officer, and to judge by his Certificate. Now here is ground enough in this Case for the Archbishop to examine this Ignorant Person, for so he must be taken to be; for so he is found by one Ordinary, and he refuses to be examined by the Archbishop. He is pleaded not to have Learning enough to capacitate him for a Cure of Souls: And that by one whom the Law hath constituted his Judge. 'Tis true, this is Traversable and Triable by the Archbishop: But all those Instances of his Insufficiency that were taken in the Bishop's Court, would be Evidences of the same before the Archbishop, proceeding in an Ecclesiastical Manner, tho' not so proper, tho' not possible to be set forth in the Temporal Court. This is not a general Return of a Person inhabilis, which might occasion an Inquiry into all Sort of Disabilities; but a special Plea of inhabilis, quia insufficienter Literatus; and therefore no further Inquiry is necessary, than into the Learning of the Party, as Capacitates him for a Rector.
Precedents of Pleading.—It was in the third Place argued from the Precedents of Pleading in this Case and other Cases of Pleading upon like Occasions, and those both Ancient and Modern.
40 E. 3. 25. In a Quare Impedit (as this is) the Bishop pleads as here, That he examined the Clerk presented, and found upon Examination que il ne fuit sufficiens Letter'd; and thereupon alledges Notice to the Patron, & per lapsum temporis he justifies his own Presentation. Upon this, there's no Dispute but that thus far it was well pleaded; but the only Doubt was, whether the Words, and so disabled, should be added to the Issue? And they were ordered to be Part of the Issue in that Case: And so they ought to be in this Case; and so they are & ea ratione inhabilis. This Case is exactly parallel to that in Question: And upon this Plea there was Issue joined, and the Trial was directed to be by the Guardian
