Nay, when it hath been pleaded thus oftentimes, and never excepted against till now?
Wherefore it was prayed that the Judgment might be reversed.
Argument for the Defendant in Error.—On the other Side 'twas argued, That the Bishop's Plea below was too General, and the Plaintiff's Replication good. That his being ordained a Priest, and a Licensed Preacher, is enough. That this is an Answer to the Allegation of the Minus Literatus; his being a Priest is a kind of Supersedeas to his Examination. That there was no Learning requisite to his having a Cure of Souls, which was not antecedently necessary to his receiving of Orders. That he ought not to be admitted into Orders, unless he be assured of or named to some Curacy: All which, supposes the Qualifications requisite for a Benefice with Cure of Souls. Then it was urged, that here was not Notice sufficient: For 'tis not till many Days after the Refusal. For this might have put Hele the patron beyond the Possibility of making a new Presentation. And in all Pleadings of this Sort, the Notice is generally alledged to be the same Day, or within a Day or two at the most; That certainly it ought to be with convenient Notice. But then it was urged, That the six Months ought not to be from the Death of the last Incumbent. If there be a Person Criminal presented, which the Patron doth or may know, as well as the Bishop, there the six Months must be from the Death; but if it be upon a Refusal for a Cause which lies only in the Bishop's Knowledge, then it must be only from the Notice; and that Notice ought to be Personal: But if the Months incur from the Death, the Notice should be in convenient Time; and what that is, the Court must Judge.
Reasons for Certainty in Pleading.—Then it was urged from Specot's Case, That this Plea is too general and uncertain. That a Temporal Right being concerned, the Bishop ought to have set forth more particularly and distinctly the Cause of his Refusal, 8 Rep. 68. the certain Cause of a Divorce must be shewn. 11 Hen. 7. 27. 2 Leon. 169. The Ordinary is a Judge only of the Matter of Fact, if True: Not if this Matter pretended to be a Cause of Refusal. He ought to alledge that so particularly, as to manifest it to the Court, in which the Suit depends, that 'tis a legal Cause of Refusal. He [104] is not a Judge, whether Hodder's Insufficiency in any one Point of Learning be a good Cause of Refusal: For, if it should be so, the Temporal Right of Patronage would be very precarious. The Court ought to have enough before them, whereon to Judge of the Cause, as well as that on Issue may be joined and tried. Here 'tis only said, that he is less sufficient, not that he is altogether Illiterate. This will put it in the Power of the Ordinary to refuse for want of Knowledge in any Learning as he thinks fit, as Mathematicks or Anatomy, without which a Man may be well Qualified to be a Rector of a Benefice: And the Consequence of such Opinion will be much to the Prejudice of Lay Patrons. That Certainty in Pleading ought to be encouraged, for the Prevention of the Exercise of Arbitrary discretionary Power. That the Wisdom of the Common Law is to reduce Things to single Questions, that the Determination upon them may be plain and certain, and known, and the Reasons of such Determinations may appear: Which cannot well be done, if general Allegations or Pleadings be countenanced. For which, and other Reasons urged by the Counsel, who argued with the Judgment, 'twas prayed that the Judgment might be affirmed.
Reply for Plaintiff in Error.—It was replied, on Behalf of the Plaintiff in the Writ of Error, that the Books were very plain, that the six Months were to incur from the Death of the Incumbent: And then, if there were not Notice in convenient and due Time, in order to enable the Patron to present again, that this ought to come on the other Side.
Judgment reversed.—That to require Learning in Presentees to Benefices, would promote the Honour of the Church; nay, of the Nation in general. That every Man who knew this Presentee and his Ignorance, even as to the Latin Tongue, must acknowledge, that the Reverend Prelate who refused him, had done worthily and becoming the Character of his Order, Family and Person. And therefore 'twas prayed that the Judgment should be reversed; and it was reversed.
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