CHAP. IX.
If, after the Clerk has been summoned, he neither appear on the appointed day, nor send any one to excuse his absence, neither on the first, second, nor third summons, it may be doubted, by what mode he should be distrained to appear in Court, especially if he possess no lay Fee, to which recourse can be had for such purpose.[135] A similar doubt may be proposed upon the course to be pursued, should he, after having thrice essoined himself in Court, neither appear on the fourth day, nor send an Attorney to answer for him.
Should either of these cases occur, let the Bishop of the place, or his Official, if there happen to be no Bishop, be enjoined to distrain the Clerk to appear in Court, or to punish his default, by taking the Church into his hands, or to distrain the Clerk by some other lawful means.
When, at last, the Clerk appear in Court, he will either acknowledge the Demandant as Patron, and admit that he was instituted upon his Presentation, or upon that of one of his Ancestors, or he will allege some other person to be the Patron.
In the former case, the Plea shall cease in the King’s Court. If the Patron deny the assertion of the Clerk, alleging himself to have been instituted upon his Presentation, or that of one of his Ancestors, and be disposed to contest this point against the Clerk, the Plea shall be discussed before his Ecclesiastical Judge. But, if the Clerk name another Patron, such Patron should be summoned to appear in Court, which Summons he will either obey, or not. In the latter case, if he neither appear at the first, second, nor third Summons; or if, having essoined himself in Court the first, second, and third times, he should neither appear nor send an Attorney on the fourth day, it may be asked, by what means he shall be distrained, and how his default shall be punished? The Advowson of the Church in question shall indeed be taken into the King’s hands, and thus remain for fifteen days; and if, within that period, the Clerk should not appear, then, the Demandant shall have the Seisin delivered to him. But what shall be done to the Clerk himself? Whether shall he from that circumstance, lose his Church?[136]
But, if the Party summoned appear in Court, he will either acknowledge himself Patron of the Church in question, or disclaim all right to the Advowson.
Should he pursue the latter course, the Suit shall cease in the King’s Court, and the cause must be discussed between the Patron and the Clerk, in the Ecclesiastical Court. But if, whilst the Suit be pending, the Church itself happen to become vacant, it may be asked, to whom the intervening Presentation belongs? If, indeed, there be no doubt moved concerning the last Presentation, but the person against whom the Right of Advowson be sought, or one of his Ancestors had the last Presentation, then, he shall present the Parson in the mean time, and until he lose his Seisin. It is a consequence of the same principle, that if the Advowson of any Church should be seised into the King’s hands on account of the default of the Patron, and, during the fifteen days, it should happen to become vacant, the Patron shall not within that period lose his Presentation. But, if the party summoned, should claim the Right of Advowson, and elect to defend it as his own, then, indeed, the Suit must proceed in the order we have already explained. If he should prevail, he and his Clerk shall be freed from the Claim of their Adversary; but, if he fail in the Suit, then, he and his Heirs shall for ever lose the Advowson.