Plaintiff shews that he lay there two Months; that the Plaintiff provided him Necessaries amounting in Value to, &c. and held good without shewing the Particulars; to avoid a Multiplicity of Reckonings. So 'tis for a Surgeon's or Apothecary's Cure.
The subject Matter of a Plea to be considered.—Another Rule in Pleading there is, That a Certainty, or a Generality in Pleading shall be required, according to the Nature of the subject Matter pleaded. In pleading of Breach of a Statute Law, it's enough to use the Negative of the Words of such Statute, as it is in Case of a Covenant. And by the same Reason in this Case, where a Statute says the Bishop may refuse propter defectum Scientiæ, it's enough to say in Literatura minus sufficiens, especially when 'tis added ac perinde inhabilis.
[99] Inconveniences.—Then were urged the Mischiefs and Inconveniences which must ensue and follow upon the Construction which they would make, that this Plea is uncertain. For, their Reason only can be, as was said before, that the Court may judge if it be such a Deficiency of Learning as disables to hold a Curacy of Souls. And this is the Reason all their Cases go upon, and the Reason insisted upon below; i.e. in effect, that they must try it; not the Archbishop. The same Pretence is applicable to any other Defect: And 'twill in Consequence confound Jurisdictions. 'Twill make an Enlargement of the Temporal, and Diminution of the Ecclesiastical Jurisdictions: Tho' both are founded upon the same English Laws, and of equal Age and Authority. Nor is it any Answer which they have alledged against this, That the Judgment at Law is not, that this Hodder shall have Institution: But that a Writ shall go to the Metropolitan to require him to admit a fit Person upon Mr. Hele's Presentation; and that if Mr. Hodder be presented, the Archbishop may refuse him as insufficient; and so the Archbishop is still Judge of the Sufficiency. This looks plausible: But they omit or forget the Consequence; that if this Judgment stand, then if the Archbishop refuse, the Temporal Courts must Judge upon another Writ, Whether the Cause of Refusal were in a Point of Learning which they think requisite (for he must not plead a general Defect of Learning, but mention Particulars, that they may judge of them) this is to subject even his Grace the Metropolitan to their Opinion, in an Affair within his own Jurisdiction and Conusance. It is at last to enforce the Episcopal Judges to contradict their own Opinions; and to admit Persons which they think not sufficiently Learned. Tho' the first Judgment doth not directly place in Hodder, yet the next will, if the Archbishop prove of the same Mind. Now this is apparently the Consequence, from the pretended Reason of the Judgment for them. And it is in effect to deny the old Law, that a Defect of Learning is a sufficient Cause of Refusal; and that the Ordinary is Judge of that Defect, and not the Temporal Court.
And then as to the Cases objected, Dyer 254. the Bishop of Norwich's Case in a Quare Impedit, which is likewise in 2 Rolls Abridg. 355. where the Bishop pleads, that the Presentee was a common Haunter of Taverns and other Places, and Games unlawful, ob quod, & diversa alia Crimina consimilia præd', the Presentee fuit Criminosus, & sic inhabilis, & non idonea persona and; this was held an ill Plea: But the Grounds and Reasons of that Judgment were not for the Generality of the Plea; but because the Defects specially declared before were not sufficient to make the Presentee & sic Criminosus, as being not Mala in se, but prohibita by particular Laws under certain Penalties. Nay, the Argument they would make from the general Word Criminosus, will not hold in the Case in Question; but is clearly distinguishable from it: Because one single Act, one Crime specially set forth, would disable the Man. But in this Case Ignorance, that works a Disability, must not be of any one particular Thing whatsoever; [100] but a general Defect of Knowledge. And another Reason against their Inference from these and the like Cases, is this, they belong to a different Examen, and upon that they require (as was said before) a different Pleading.
Speccot's Case of Schism answered.—The great Case, and the only one that can be pretended to come near this, is Speccot's Case, mentioned in every contemporary Report of that Age, as a new Case. And a new one it is; and the Reasons of it are differently reported in divers Books. And in Truth, the Reasons of the Judgment do not warrant it, nor make it applicable to the Case at Bar.
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