Judgment of time interfered; it is moft clear that the title and poffeffion of the plaintiff are perfect and compleat, and amount in effect to admiffion, inftitution and induction; and there is no cafe to be found to the contrary. My Brother ftrongly infifts, that this being a donative with cure of fouls, is within the meaning of the ftatutes of Eliz. and Car. 2.; I have endeavoured to answer this before; a donative with cure is not vifitable by the bifhop, but in the cafes of all donatives the donor is the ordinary. And of the King's chapel the dean thereof is the ordinary, and not the bishop of London: and in-cafes of the King's donatives his commiffioners have the fame power as ordinary fo the Serjeant concluded by praying judgment for the plaintiff. The court took fome fhort time to 'confider, and afterwards were unanimously of opinion that the plaintiff must have judgment. Lord Chief Juftice De Grey-William Jolliffe Efq. and Eleanor his wife being feised of the advowfon or right of donation of the donative of Chefter Le Street (which is a donative with cure of fouls) in right of the faid Eleanor, they nominated and appointed the plaintiff Lewis Powell clerk thereto in June 1770, who was then in priest's orders and fubfcribed the thirty-nine articles, and the three articles in the 36th canon at the time of his ordination; but he did not prove upon the trial that he had fub'fcribed the articles in the prefence of the bishop of Durham who is Ordinary of the diocese within which the donative in question is; nor that he had publickly read the fame in the church of Chefter Le Street, with declaration of his unfeigned assent to the fame; nor that he had fubfcribed the declaration or acknowledgment contained in the ftatute of 13 & 14 Car. 2. cap. 4. for the uniformity of publick prayers and adminiflration of facraments, and other rites and ceremonies, &c. fince his nomination to the donative; nor had any licence from the late or prefent bishop of Durham to preach or officiate in the church of Chefter Le Street. The general queftion in the cafe ftated for the confideration of the court is, whether the plaintiff is in a fituation to maintain this action? Under this general queftion, two particular queftions have been made upon the argument at the bar (viz.) il, Whether the "plaintiff as incumbent of this donative church is not within the ftatutes of 13 Eliz. cap. 12. and the 13 & 14 C. 2. cap. 4. and obliged to comply with the requifites therein? 2dly, Whe ther ther it was not neceffary for him to have proved upon the trial of this caufe that he had conformed to thofe requifites. The judgment of the court will not be upon the 1st question; however we fhall fay fomething concerning publick and private intereft in advow fons, benefices and church-livings. In the cafe of a prefentative benefice the patron has his private interest and right of presentation, the bifhop or ordinary has the right of admiflion, inftitution and induction of the clerk. In the cafe of a donative, both the private and publick acts to be done: are in the donor; nothing is in the bishop: fo that by the donation the plaintiff in this cafe had induction to the church of Chefter Le Street: but ftill a donative hath all the properties A donative of ecclefiaftical benefices, especially when it is with cure of fouls, hath all the properties of as this is. It is clear by the 13 Eliz. c. 12. that the incum- ecclefiaftical bent of any benefice with cure mult be 23 years of age, in deacon's benefices. orders, fubfcribe and read the thirty-nine articles: and by 13 & 14 Car. 2. muft read the Common Prayer, subscribe, &c. and by other statutes must take the oaths of allegiance and fupremacy, 3. Thele acts of parliament feem to extend to incumbents of donatives as well as to incumbents of all other ecclefiaftical benefices; no perfon is to be admitted to any benefice with cure of fouls, unlefs he is 23 years of age and in deacon's orders; could the plaintiff have taken this donative if he had not been 23 years. of age, nor in deacon's or prieft's orders, and had not read and fubfcribed the articles? He certainly could not; and although there is the word induction in the latter provifion in fect. 3. of the 13 Eliz. yet that ftatute extends to all livings with cure, as well donative as prefentative. So the flat. 13 & 14 Car. 2. extends to both forts of livings, to all chapels and places of publick worship; it fpeaks of patrons and donors, it may mean con ferring, giving, collating, prefenting; fo alfo the following claufes in the fame act extend to deans, prebendaries, &c. fome whereof are of private donation. قوع It was objected in argument that the acts required to be done by these statutes are against the right of the donor; but there is no weight in the objection, becaufe the intereft of the donor or his right of donation is not affected thereby, for the acts required to be done by these ftatutes only concern the interest and good of publick policy; as the bifhop has jurifdiction over the moral characters of incumbents, fo thefe ftatutes have given a check upon their political principles. If it were necellary for the court to give judgment upon this first point or question, the cafe in 3 Lev. 82. of Carter verfus Pinkney fhews that a ftipen diary prieft or a donative is within the ftatutes of fimony and of conformity. The fecond question or point on which the court gave judgment 2dly. Suppofing an incumbent of a donative church to be within the flatutes of the 13 Eliz. and 13 & 14 Car. 2. and obliged to comply with and perform the requifites therein, the fecond question or point upon which the court now give their judgment is, whether it was not necessary for the plaintiff to have proved upon the trial of this caufe that he had conformed to thofe requifites. It may be proper firft to confider the nature of the present action; it hath been introduced of late years to try questions of right, as a kind of fictitious action, and in the prefent cafe it was brought to try who had a right to nominate to the donative church of Chefter Le Street; whether Mr. Jolliffe in right of his wife, or the Crown, or any other perfon had this right? There was no fact propofed to be tried relating to the queftion, whether the plaintiff had performed the requifites in the beforementioned ftatutes of Eliz. and Car 2. We are all of opinion, that in this action it was not neceffary for the plaintiff to have proved upon the trial of this caufe, that he had conformed to the requifites before-mentioned and stated; we will prefume that he conformed to all thofe requifites, there having been no proof offered to the contrary; and although it may be faid, that this is obliging the defendant to prove a negative, yet the defendant might have eafily brought these requifites to be performed into question, because they are generally entered in publick regifters, and if no fuch, with refpect to the plaintiff, are to be found entered in the proper registers, that might have induced a fufpicion that he had not performed the requifites above, and might be fit for a jury to take into confideration; however it appears by the cafe ftated, that the plaintiff hath complied with the moft material requifites, that he was in prieft's orders, fubfcribed the articles, &c.; we think the plaintiff well intitled to this donative. And in support of our opinion the cafe of Monke and Butler above ftated is very ftrong, befides other cafes and opinions that have fince been de termined and given upon this point; there is a cafe in Clayton's Rep. Pleas of Affize, fol. 48. 1636. it was a cafe for tithes on fat. Ed. 6. the party was preffed to prove admiffion, inftitution and induction; but ruled that he fhould not be put to do this, and if it is otherwise let the defendant prove it [fays the book.] In an ejectment before Lord Chief Juftice Wilmot tried at Salisbury; a predendary brought an ejectment to recover an house built upon his prebendal fite; the prebendary was called upon to prove the feveral requifites before-mentioned; the Chief Chief Juftice faid "thofe fhall be prefumed upon found principles 66 of law." It may be neceffary to mention fome cafes that feem to differ from our opinion in this point, as the cafe of Snow Leffee of Dr. Crawley verfus Philips, 1 Sid. 220. in a trial at bar in ejectment for the rectory of Agmondefham in Com. Bucks, the leffor of the plaintiff was required to prove in evidence (after he had proved his admiffion, inftitution and induction) his reading of the articles and fubfcribing the same, and his declaration in the church of his free and full affent and confent to all things contained in the book of Common Prayer, and this ought to be proved to be done within the time limited by the ftatute which appoints it. It is to be obferved upon this cafe, that the expreffion, is, he was required to prove, &c. but it is not faid whether he was required by the court or the counfel, nor does it appear to have been argued or debated upon, nor is the cafe of Monke and Butler in Roll. Rep. cited there. It is alfo to be observed that the fame case is reported in 1 Keb. 720. where nothing is mentioned of this queftion of evidence, fo the matter did not pafs in argument.În Comb. 202. Doctor Hafker's cafe in ejectment; for his poffeffion, he proved his prefentation, inftitution and induction, reading the articles, &c.; it was objected it fhould be proved he was in orders. Holt faid, If he is laicus the prefentation is not void, only voidable, that he was intitled to poffeffion having eftablished his temporal title to the thing, and his religious or political title fhall be prefumed. Judgment for the plaintiff per totam curiam, and the poftea delivered to the plaintiff. HILARY armis for falfe Black. Rep. Barker Widow verfus Braham and Norwood. C. B. 6. Trefpafs i et TRESPASS for falfe imprisonment; the defendants pleaded the general iffue not guilty, which was tried at Westminster, 174 imprifonment the fittings after Trinity term laft, before Lord Chief Juftice De Grey, when the jury found a verdict for the plaintiff, and gave attorney (as her 150l. damages against both the defendants jointly. as well lies against an against his client [See Parfons N. Loyd. ante p. 341.].) who fues out at the fuit of his client an illegal writ of capias ad fatisfaciendum against a defendant, and caufes fuch defendant to be imprifoned thereupon. The Lord Chief Juftice reported the fubflance of the evidence given at the trial as follows, viz. That Jofeph Barker, late husband of the plaintiff, at the time of his death (in 1768) was indebted to the defendant Jenny Braham upon bond in the fum of 400/.; the plaintiff Mrs. Barker having obtained letters of adminiltration to her husband, Mrs. Braham employed the other defendant Norwood as her attorney to bring an action of debt upon the bond, in the King's Bench, against the plaintiff Mrs. Barker as adminiftratrix to her late husband, which he accordingly did; and upon the 31ft day of January in Hilary term 1769, obtained judgment (by default for want of a plea) against her, whereby it was confidered (by the court of B. R.) that Braham do recover against Barker the faid debt of 400l. and fo much for damages (or cofts) to be levied of the goods and chattels which were of the faid Jofeph Barker at the time of his death, in the hands of (the then defendant) Mrs. Barker to be adminiftred, if fhe had fo much in her hands to be adminiftred, and if fhe had not, then the damages (or cofts) only to be levied upon the proper goods and chattels of Mrs. Barker. Whereupon Norwood the next day, the ift of Fe 2 bruary, |