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.
CHAP. X.
But what course shall be pursued with the Clerk, the Parson of the Church, who has declared in Court, that he held the living upon his[137] Presentation? In the King’s Court, indeed, nothing farther is to be done in the matter, unless as it concerns the Advowson between the two Patrons.
But the Patron, who has recently recovered the Right of Advowson, shall proceed against the Clerk in the Ecclesiastical Court before the Bishop or his Official, under these restrictions—if, at the time of Presentation, the Person presenting such Clerk was considered to be the Patron, then, the Church shall continue to be held by the Clerk, during the remainder of his life. For, upon this subject, a Statute has been passed in the Reign of the present King, concerning those Clerks who have obtained Livings upon the Presentation of such Patrons as have, in time of war, violently intruded themselves into Ecclesiastical Advowsons; and by such Statute it is provided, that Clerks thus presented shall not lose their Churches during their lives. Thus is the question above proposed, resolved. But, after the decease of Clerks so presented, the Presentations of the Churches shall return to the rightful Patrons.
CHAP. XI.
As connected with the preceding subject, a question arises. Let us suppose that a Patron has, in the King’s Court, recovered the Advowson as against another; and that afterwards, in process of time, the Clerk of the Church should die. In such a case, can the party against whom the Advowson had been recovered again demand an Assise, concerning the last Presentation; and, if he should obtain a Writ to summon the Assise, what step must his Adversary resort to? Let us suppose, that he himself had never presented an Incumbent to the church in question, but that his Father, or at least one of his Ancestors, had so done, and it be objected to him by his Adversary, that he ought not to have a Recognition, because he had already lost the Advowson by the former Judgment of the Court, whether, it may be asked, shall the Assise cease on that account, or not? It appears that it ought[138] to cease, because, not having the last Presentation, he never had the Seisin of the Advowson; but, it seems, that he might well found his claim upon the Seisin of his Father, notwithstanding any thing that may have been done, concerning the Right itself of Presentation. But if the point of the last Presentation can be again agitated, then, it should seem, that the Judgments of the King’s Court are not of perpetual obligation. For if the Advowson of a Church were once adjudged to any person, it does not appear consistent with Justice that the Adverse party should by any means, which can be subsequently resorted to, recover any Seisin in that Court, especially against him in whose favor the Advowson has been already decided, unless any new circumstance should intervene, on account of which he ought again to be heard. If therefore, an Assise should be summoned for that purpose, it should cease from this circumstance, that although it were conceded that the Claimant, or one of his Ancestors, had the last Presentation, yet it might be alleged, that, if he or his Ancestors had any Right, they lost it by the Judgment of the King’s Court; and, this being proved by the Record of the Court, the Complainant shall lose his cause, and shall in addition be amerced to the King.