Hill . Term , 2. Will . & Mariae .

SAmpson Hele , Esq ; brought a quare impedit in the Court of Common-Pleas , against the Lord Bishop of Exon and Gawen Hayman , Clerk , for recovery of his Presentation to the Church of Southpole in Devon , the Advowson of which , is appendant to his Mannor of Southpole , of which he is Seized in Fee .

To which the Defendants appeared , and the Bishop pleaded , that he claimed nothing in the Church but as Ordinary , but said further , that the 15th of April An. 2d . Will . & Mariae , the Church became void ; and the 19th of May , Anno praed . Mr. Hele presented one Francis Hodder , as his Clerk to the said Church , whom the Bishop on Examination sound to be Persona in literatura minus sufficiens seu capax ad habendum dictam Ecclesiam and therefore he refused to admit the said Hodder , and two and thirty days after , gave notice to Mr. Hele to present another Clerk ; who did not present any other Person , within six Months after the Death of the last Incumbent ; whereupon , the right of Collation devolved to him as Ordinary , by Lapse , and he Presented the Defendant Hayman .

Mr. Hayman Pleaded the same Plea verbatim , as the Bishop Pleaded .

Mr. Hele by Replication says , That the said Francis Hodder , at the time when he was presented to the said Church , was Vicar of the Parish Church of Ugborough in the County of Devon ; lawfully Admitted , Instituted , and Inducted thereunto , and was in Holy Orders , by Episcopal Ordination , from the late Bishop Sparrow , then Bishop of Exon ; and in Reading , Praying , Preaching , Administring the Sacraments , and in all other things appertaining to the Priest's Office and Cure of Souls , was well and sufficiently Learned .

The Defendants , by Rejoinder to this Replication , maintain their Plea ; and after some further Pleading , ( not very material , ) the Defendants Demurre , and the Plaintiff joins in Demurrer , and the matter is left to the consideration of the Court .

The only point in the Case , arose upon the Defendants Plea ; and the main Objection thereunto , was , that it was too general and uncertain , not comprehending any particular or certain Cause of the Bishop's refusal of Mr. Hodder for ; Learning in the general , comprehends all Humane Science ; many parts whereof , are not at all requisite to the Qualification of a Priest ; and by the general expression of minus sufficiens in literatura it appeared not , in what part of Learning Mr. Hodder was deficient , so as the Temporal Courts could not thereupon Adjudge , whether the Cause , for which the Bishop refused Mr. Hodder , was a sufficient Cause in Law , to refuse him , or not .

The Cause depended two Years in the Common-Pleas , and was Argued thrice at the Bar , by Serjeants of either side ; and in Hillary Term , 4 Reg . & Reginae nunc , &c. Judgment was given for the Plaintiff , by the unanimous Consent of the whole Court , upon the insufficiency of the Defendants Pleas , for the Reason above mentioned .

Hill . Term , 4. W. & M.

The Defendants being dissatisfied with this Judgment , brought a Writ of Error in the King's Bench , which came on to be Argued before the Judges of that Court , in Michaelmas Term last ; who on the first Argument , seemed inclinable to affirm the Judgment which the Court of Common-Pleas had given ; but the Defendants Councel pressing for another Argument , the Court gave them further time till the Term following ; and in Hillary Term last , the Councel for the Plaintiff was prepared , and offered to have Argued the Cause a second time , but the Councel for the Defendants ( seeing the Opinion of the Court to be against them ) refused to speak any more thereunto , but desired the Court to give their Judgment therein ; so that even by the Defendants own Consent , as well as on the Matter in Law , the Court of King's Bench affirm'd the Judgment ; and the Judges declared their Opinions of the insufficiency of the Plea , for the Reason above mentioned .

Obj. It may be Objected , that the Matter of Fact contained in the Bishop's Plea , is true , though it be not sufficiently pleaded ; that Mr. Hodder is an Illiterate Man ; that he is unworthy of Orders , by Reason of his Ignorance ; and that he got them in a surreptitious manner ; that the Bishop could not in Conscience admit him , when he found him so very unfit ; so that this Judgment is given upon the bare formality of pleading only ; when as Truth and Reason , and the preservation of the Church's Rights , are on the other side .

Answ . Mr. Hodder hath been a Benefic'd Clergy Man in Devonshire , Twenty Years and upwards , of a very Sober Conversation , and an Honest Character amongst his Neighbours ; and lookt upon , to be an Able , Painful , Diligent Man in his Function ; his Insufficiency in Learning ( whatever it be ) was unknown to Mr. Hele , who is a private Country Gentleman ; and finding Mr. Hodder a Priest in Orders , having charge of a great Congregation ; and a great Family , but a small Income ( his Vicaridge being not worth above 30 pounds per An. ) out of Charity presented him to this Benefice of Southpole ; where his Livelyhood would have been augmented , but his Charge very much lessened ; for there are five times as many Souls in Ugborough , as there are in Southpole ; so that if he be sufficient to keep that Benefice which he hath already , he is much more so to take this new Preferment .

If it be said that 't is hard , that a slip in the formality of pleading , should lose to the Bishop the Right of Presentation ; which by the Lapse is fallen to him ; It 's harder , that Mr. Hele's Charity to a poor Clergy-Man , should be the occasion of losing his Inheritance ; and if the Bishop will take the advantage of a Lapse , to deprive the Patron of his Presentation ; it 's hoped , that the Patron may take any advantage the Law gives him to recover it .

Obj. Should this Judgment stand ; Mr. Hodder ( whom the said Bishop of Exon hath found unfit ) shall be obtruded and thrust into the Church , against the Conscience and Duty of his Diocesan , who by reason of his Insufficiency , was bound to refuse him Institution .

Answ . With all due Respect to his Lordship and the Jurisdiction and Priviledges of the Church ; it may in Answer be observed , that the Judgment at Law is , that the Patron shall recover the Presentation , not that Mr. Hodder shall have Institution ; for now a Writ must go to the Metropolitane to require him to admit a fit Person to the Church on Mr. Hele's Presentation ; and if he present Mr. Hodder again , and the Archbishop find him insufficient , he may refuse to admit him ; so that 't is not any hardship put upon the Lord Bishop of Exon , or any breach on the Jurisdiction of the Church ; for the Archbishop is still Judge of Mr. Hodder's sufficiency ; and he is also still lyable to the Bishop of Exon's Jurisdiction , who for the same Cause ( admitting it sufficient ) for which he refused him Institution to a new Benefice , may deprive him of that which he hath already .

The tender Regard that the Laws of England have to the preservation of the Temporal Rights of English Subjects , was the great Reason that guided the Opinions of the Judges in their Judging of this Case ; for should every Ordinary be the absolute Judge of his own Cause of Refusal ; and the Temporal Courts be obliged to give Judgment on a general Allegation of minus sufficiens in literatura without being informed in what particular the Insufficiency lyes ; it must from thence necessarily follow , that all the Patronages and Advowsons in the Hands of the Nobility and Gentry of England , must be precarious ; for then the Ordinary may refuse any Clerk presented by a Rightful Patron , until the six Months be elaps'd , and then take the advantage of that delay which he himself occasion'd .