of the Spiritualities, vacante Sede Cantuariensi. Nothing can be offered against this, only that 'tis Ancient, and the Law is changed: But by what Authority is hard to know. There is no Act of the Legislature to alter it. Much hath been done to help against Niceties in Pleading; nothing to require more. And Bro. Quare Impedit, 168. they were compelled to join Issue, able or not able, in that Respect.
39 E. 3. 1 & 2. The Earl of Arundel versus The Bishop of Chester, says the Book, tho' it appears plainly to be a Mis-print, from the Name of the Church, and the Trial per pais, and the Antiquity of the Bishoprick it self. It must be the same, that in the Abridgment is [96] called The Earl of Arundel versus The Bishop of Exeter. The Bishop pleads as here; That he examined the Clerk presented, and found him persona inhabilis to have a Benefice in the Church; and Issue is joined upon that, which is stronger than ours, and a Trial by Jury is directed out of the County of Cornwall, because the Clerk was dead. Here are two Cases in which all the different Trials are taken that can be had; by the Guardian where the Presentee was living, and by Jury when dead, because he could not be examined: And in both these Cases Issue is taken upon this Plea, and that in great Cases, and after long Debate. And, according to Lord Coke, in this Reign the Law was pure and uncorrupt, and flourished.
Then were urged Modern Precedents, Mich. 15 & 16 Eliz. Rot. 1941. Molineux versus Archiepiscop' Ebor' in a Quare Impedit, in which the Plea of the Archbishop is the same in totidem verbis, as here, Persona in Literatura minus sufficiens, seu habilis ad habend' præd' Ecclesiam, and there is no Exception taken to the Plea, but only Issue joined upon Notice, or no Notice, before the Lord Chief Justice Dyer.
Another Precedent there is Hill. 6 Eliz. Rot. 646. Bodenham versus Episcop' Hereford'; there is the same Plea in Bar as here, That the Person presented was Persona in Literatura minus sufficiens seu habilis ad habend' aliquod Beneficium Sanctæ Ecclesiæ; and then avers Notice to the Patron: And no Exception taken to the Plea, but Issue upon Notice.
Pasch. 6 Eliz. Rot. 714. Paschall versus Episcop' Lond', Quare Impedit, the Ordinary pleads an Examination de habilitate, honestate & doctrina ejus; & pro eo quod idem Episcopus invenit præd' Christophorum fore criminosum, & de non sana Doctrina, ideo recusavit, and Notice; and even to that general Plea there's no Demurrer; but Issue upon Notice. 'Tis no Answer, that here was no solemn Judgment upon this very Point: For it doth rather inforce the Authority of the Precedents. It argues that the Law was taken to be so clear for the Validity of this Plea, that no Lawyer would venture upon a Demurrer; but rather would trust to a Jury upon the Evidence of Notice. It argues it so constant a Course and Method of Pleading in these Cases, that none was so hardy as to dispute it.
38 E. 3. 2. Perjurius was alledged by the Bishop in the Presentee, and held to be well enough; but nothing of Manner, Time and Place, nor any conviction of it mentioned; and yet this was admitted a good Plea. 2 Rolls Abridg. Presentment, 356. and so says Rolls, it shall be, tho' in a Suit between the Ordinary himself and another, Dyer 293. 'tis cited Bro. Quare Impedit, 170. Justice Rhodes 3 Leon. 100. vouched a Case in 30 E. 1. out of a Manuscript of the Lord Catlin, wherein upon a Quare non Admisit, the Defendant pleaded that the Presentee was Schismaticus & Adulter, and the Court commanded that he should hold to one or other of them, for which he said Adulter; from hence 'tis manifest, that the Court did not dislike the Plea for the Generality, but the Doubleness.
[97] This is the usual Course of Pleading.—And then it was said, That after all these Precedents on this side, and many others which might be cited of the like Generality in other Cases, 'twill be difficult to shew one single Instance or Case in which this Matter of general Defect of Learning was ever pleaded otherwise; or any one Judgment against any Bishop whatever, upon such a Plea. For, tho' in some Cases, which they say are parallel and similar, tho' in truth they are not, as Criminosus and Schismaticus hath been adjudged too general, yet this Plea of Minime in Literatura sufficiens, ac ea ratione incapax, as it has always been used, without Alteration of Words, so has it never yet been excepted against; and in these Precedents of E. 3. before cited hath been thought good, and Issue joined thereupon.
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