Nevertheless, though the right is found for one party, yet the ordinary may still receive a contrary clerk if he will, but that must be at his own peril. And according to Hobart, since it is a provision merely for the good and safety of the ordinary, and he pretends doubt, and therefore puts the patron to this enquiry, to his charge and delay to satisfy and secure him, he ought to judge and receive the clerk according to that verdict; for though it be true that it is but an inquest of office, and therefore binds not the patron, yet the patron cannot impute disturbance to the ordinary, who ought therefore to follow it, for to these purposes it is final, and cannot be tried again. (1)

If the jury are equally divided, or give a special verdict, or no verdict, or if there is a verdict in favour of each patron, in these cases, it seems, the bishop (inasmuch as he has done his duty) may refuse both, without subjecting himself either to an action on the case, or the peril of being deemed a disturber. (2)

If the bishop pleases he may enquire, as was once the custom, of the right of every person that presents a clerk to him, by awarding a jure patronatus before he admits his clerk. And if

(1) Sir W. Elvis v. The Archbishop of York, Hob. R. 318.

(*) Gibs. Cod. tit. 33. 816. Degges, P. C. Part 1. ch. 3.

in such case it be found that a stranger has a right, if the stranger presents in six months, the ordinary is to admit his clerk; but if he lets the six months pass, the ordinary is obliged to admit the clerk of the disturber, and is thus barred of the benefit of lapse.

When a jure patronatus is awarded, the bishop proceeds either by himself, or, and that more usually, by a commission made under his seal, to certain persons as best pleaseth him: if by commission, then it is done after this manner; the bishop appoints to sit in the void church on a certain day, and decrees a monition against the patrons presenting, and the clerks presented, to be present there at the day appointed to see the proceedings. Also the bishop is to decree, and send forth a public edict against all having or pretending to have an interest or right of presenting to the vacant church on the day and at the place appointed, to show their right, &c. And this public edict is to be affixed to the door of the void church in time of divine service. And against the day of appearance certain articles are to be prepared, which are to contain the particulars, about which the jury are to enquire; viz. 1st. Whether the church be void, and how it became void. 2d. Who presented at the last preceding avoidance, and to the two

foregoing avoidances. 3d. Whether the persons presenting, presented in their own right.

4th. In whom the inheritance of the advowson is; and who ought to present to the void turn. 5th. Whether any of the clerks presented be known, or suspected to be guilty of any crime, rendering him incapable of admission to the said benefice, as heresy, simony, &c.

At the day appointed for this enquiry, the person or persons executing the aforesaid mandates or citations, are to make oath of the due execution thereof, or the execution of them may be certified on the back of the mandate, which must be done under some authentic seal, viz. of the archdeacon, commissary, or rural dean; against which day, the bishop is also to summons a jury for this purpose, by way of citation, which jury is to consist of six clerks, and six lay-men that live near to the void church, and then the parties cited, and those of the jury are to be publicly called; and if any of the jury appear not, being duly summoned, they may be punished, that is, the clergymen by sequestration, the laymen by excommunication, and so compelled to appear; but lest any fail, it is best to summon more than the number of twelve, for that more, if the judge think fit may be sworn of the jury, provided that there be an equal number of the lay and clergy. And if others cited appear not, they are to be pronounced contumacious, and the proceedings are to go on, however, and in pœnam contumacia of them who do not appear.

If six clergy and six laymen appear to be of the the jury, which is the competent number, they are to be sworn faithfully to enquire of the articles, and in swearing them, first a clerk, then a layman is to be sworn, till a jury of twelve be made up. The jury being impanelled, the articles to be enquired of are to be publicly read and delivered to them, and then the parties or their counsel are to set forth their interests or titles, and produce their evidences to prove them. When the parties and their counsel have been fully heard, the jury may give their verdict at any time the same day, or, if the cause be doubtful, the judge may assign them a longer time to consider of the matter, and assign also a place where they shall give their verdict. (')

Immediately on the suing out of the quare im- Writ of ne pedit, if the plaintiff suspects that the bishop will admittas. admit the defendant's or any other clerk pending the writ, he may have a prohibitory writ called a ne admittas, which recites the contention begun in the king's courts, and forbids the bishop to admit any clerk whatsoever till such contention be determined.

If the bishop after the receipt of this writ admits any person, even though the patron's right () Wats. Cl. L. ch. 21. 236.

U

Writ of quare incumbravit.

may have been found in a jure patronatus, then the plaintiff after he has obtained judgment in the quare impedit, may remove the incumbent, if the clerk of a stranger, by a writ of scire facias, and shall have a special action against the bishop, called a quare incumbravit.

This writ of ne admittas does not lie if the plea be not depending in the king's courts, and therefore there is a writ in the register directed to the chief justice of the C. B. to certify to the king in his chancery, if there be any plea before him and the other judges, between the parties. So that this writ should not be granted till this be done. But yet it may be had out of the chancery before the king is certified, that such plea of quare impedit is depending, and then the party grieved may require the chief justice to certify. (')

If notwithstanding the writ of ne admittas, the bishop does admit the clerk of any other person pending the suit, and the person who brought the ne admittas recovers, then he may have a special action against the bishop, called a Quare incumbravit, to recover the presentation, and also satisfaction in damages for the injury done him by incumbering the church with a clerk pending

(*) 3 Black. Com. 248. | Q. Imp. 184. Bul. N. P. 124. Fitz. N. B. 32. 37. 84. 3 Mall. | Degges, P. C. Part i. ch. 3.