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The Doctor and Student (1518)
Christopher St. Germain
Where divers patrons of an advowson vary in their presentments, whether the bishop shall have liberty to present which of the incumbents that he will or not
Doct. This question is asked in summa rosella, in the title patronus, the 9th article; and there it appeareth by the better opinion, that he may present whether clerk he will: howbeit the maker of the said sum saith, by the rigour of the law, the bishop in such case may present a stranger, because the patrons agree not. And in the same chapter patronus, the 15th article, it is said that he must be preferred that hath the most merits, and hath the most part of the patrons: and if the number be equal, that then it is to consider the merits of the patron: and if they be of like merit, then may the bishop command them to agree, and to present again: and if they cannot yet agree, then the liberty to present is given to the bishop to take which he will: and if he may not yet present without great trouble, then shall the bishop order the church in the best manner he can: and if he cannot order it, then shall he suspend the church, and take away the relicks, to the rebukes of the patrons: and if they will not be so ordered, then must he ask help of the tem poralty. And in the 15th article of the said title patronus, it is asked, Whether it be expedient in such case, that the more part of the patrons agree, having respect to all the patrons, or that it suffice to have the more part in comparison of the less part? as thus: There be four patrons to present one clerk: the first and second present one, the third presenteth another, and the fourth another: he that is presented by two hath not the more part in comparison of all the patrons, for they be equal; but he hath the more part having respect to the other presentments. To this question it is answered, That either the presentment is made of them that be of the college, and there is requisite the more part, having respect to all the college; or else every man presenteth for himself as commonly do laymen that have the patronage of their patrimony, and then it sufficeth to have the more part in respect of the other parties. Doth not the law of England agree to these diversities?
Stud. No, verily.
Doct. What order then shall be taken in the law of England, if the patrons vary in their presentments?
Stud. After the laws of England, this order shall be taken: if they be joint-tenants or tenants in common of the patronage, and they vary in presentment, the ordinary is not bound to admit none of their clerks, neither the more part nor the less; and if the six months pass, or they agree, then he may present by the lapse: but he may not present within the six months, for if he do, they may agree, and bring a quare impedit against him, and remove his clerk, and so the ordinary shall be a disturber. And if the patrons have the patronage, by descent as coparceners, then is the ordinary bound. to admit the clerk of the eldest sister, for the eldest shall have the preferment in the law if she will; and then at the next avoidance the next sister shall present; and so by turn one sister after another, till all the sisters or their heirs have presented, and then the eldest sister shall begin again. And this is called a Presenting by turn, and it holdeth alway between coparceners of an advowson, except they agree to present together, or that they agree by composition to present in some other manner; and if they do so, the agreement must stand. But this must be always except, that if at the first avoidance that shall be after the death of the common ancestor, the king have the ward of the youngest daughter, that then the kin; by his prerogative shall have the presentment, and at the next avoidance the eldest sister, and so by turn. And it is to understand, that if after the death of the common ancestor the church voideth, and the eldest sister presented together with another of the sisters, and the other sisters every one in their own name or together; that in that case the ordinary is not bound to receive none of their clerks, but may suffer the church to run into the lapse, as it is said before; for he shall not be bound to receive the clerk of the eldest sister, but where she presenteth in her own name. And in this case where the patrons vary in presentment, the church is not properly said litigious, so that the ordinary should be bound at his peril to direct a writ to enquire de juro Patronatus; for that writ lieth where two present by several titles, but these patrons present all in one title, and therefore the ordinary may suffer it to pass, if he will, into the lapse. And this manner of presentments must be observed in this realm in law and conscience.