THE CASE OF samson Hele, Esq; Against the Right Reverend Father in God, Jonathan, Lord Bishop of Exon, and Gawen Hayman, Clerk; in a Quare Impedit, now depending on a Writ of Error in the House of Lords.  

Hill. Term, 2. Will.& Mariae.  
samson Hele, Esq; brought a quare impedit in the Court of Common-Pleas, against the Lord Bishop of Exon and Gawen Hayman, Clerk, for recovery of his Presentation to the Church of Southpole in Devon, the Advowson of which, is appendent to his Mannor of Southpole, of which he is Seized in Fee.  
To which the Defendants appeared, and the Bishop pleaded, that he claimed nothing in the Church but as Ordinary, but said further, that the 15th of April An. 2d. Will.& Mariae, the Church became voided; and the 19th of May, Anno praed. Mr. Hele presented one Francis Hodder, as his Clerk to the said Church, whom the Bishop on Examination sound to be Persona in literatura minus sufficiens seu capax ad habendum dictam Ecclesiam and therefore he refused to admit the said Hodder, and two and thirty days after, gave notice to Mr. Hele to present another Clerk; who did not present any other Person, within six Months after the Death of the last Incumbent; whereupon, the right of Collation devolved to him as Ordinary, by Lapse, and he Presented the Defendant Hayman.  
Mr. Hayman Pleaded the same Plea verbatim, as the Bishop Pleaded.  
Mr. Hele by Replication says, That the said Francis Hodder, at the time when he was presented to the said Church, was Vicar of the Parish Church of Ugborough in the County of Devon; lawfully Admitted, Instituted, and Inducted thereunto, and was in Holy Orders, by Episcopal Ordination, from the late Bishop Sparrow, then Bishop of Exon; and in Reading, Praying, Preaching, administering the Sacraments, and in all other things appertaining to the Priest's Office and Cure of Souls, was well and sufficiently Learned.  
The Defendants, by Rejoinder to this Replication, maintain their Plea; and after some further Pleading,( not very material,) the Defendants demur, and the Plaintiff joins in Demurrer, and the matter is left to the consideration of the Court.  
The only point in the Case, arose upon the Defendants Plea; and the main Objection thereunto, was, that it was too general and uncertain, not comprehending any particular or certain Cause of the Bishop's refusal of Mr. Hodder for; Learning in the general, comprehends all human Science; many parts whereof, are not at all requisite to the Qualification of a Priest; and by the general expression of minus sufficiens in literatura it appeared not, in what part of Learning Mr. Hodder was deficient, so as the Temporal Courts could not thereupon Adjudge, whether the Cause, for which the Bishop refused Mr. Hodder, was a sufficient Cause in Law, to refuse him, or not.  
The Cause depended two Years in the Common-Pleas, and was Argued thrice at the Bar, by Serjeants of either side; and in hilary Term, 4 Reg.& Reginae nunc, &c. judgement was given for the Plaintiff, by the unanimous Consent of the whole Court, upon the insufficiency of the Defendants Pleas, for the Reason above mentioned.   

Hill. Term, 4. W.& M.  
The Defendants being dissatisfied with this judgement, brought a Writ of Error in the King's Bench, which came on to be Argued before the Judges of that Court, in Michaelmas Term last; who on the first Argument, seemed inclinable to affirm the judgement which the Court of Common-Pleas had given; but the Defendants council pressing for another Argument, the Court gave them further time till the Term following; and in hilary Term last, the council for the Plaintiff was prepared, and offered to have Argued the Cause a second time, but the council for the Defendants( seeing the Opinion of the Court to be against them) refused to speak any more thereunto, but desired the Court to give their judgement therein; so that even by the Defendants own Consent, as well as on the Matter in Law, the Court of King's Bench affirmed the judgement; and the Judges declared their Opinions of the insufficiency of the Plea, for the Reason above mentioned.  
Obj. It may be Objected, that the Matter of Fact contained in the Bishop's Plea, is true, though it be not sufficiently pleaded; that Mr. Hodder is an Illiterate Man; that he is unworthy of Orders, by Reason of his Ignorance; and that he got them in a surreptitious manner; that the Bishop could not in Conscience admit him, when he found him so very unfit; so that this judgement is given upon the bare formality of pleading only; when as Truth and Reason, and the preservation of the Church's Rights, are on the other side.  
Answ. Mr. Hodder hath been a beneficed Clergy Man in Devonshire, Twenty Years and upwards, of a very Sober Conversation, and an Honest Character amongst his Neighbours; and looked upon, to be an Able, Painful, Diligent Man in his Function; his Insufficiency in Learning( whatever it be) was unknown to Mr. Hele, who is a private Country Gentleman; and finding Mr. Hodder a Priest in Orders, having charge of a great Congregation; and a great Family, but a small Income( his vicarage being not worth above 30 pounds per An.) out of Charity presented him to this bnfice of Southpole; where his livelihood would have been augmented, but his Charge very much lessened; for there are five times as many Souls in Ugborough, as there are in Southpole; so that if he be sufficient to keep that bnfice which he hath already, he is much more so to take this new Preferment.  
If it be said that 'tis hard, that a slip in the formality of pleading, should lose to the Bishop the Right of Presentation; which by the Lapse is fallen to him; It's harder, that Mr. Hele's Charity to a poor Clergy-Man, should be the occasion of losing his Inheritance; and if the Bishop will take the advantage of a Lapse, to deprive the Patron of his Presentation; it's hoped, that the Patron may take any advantage the Law gives him to recover it.  
Obj. Should this judgement stand; Mr. Hodder( whom the said Bishop of Exon hath found unfit) shall be obtruded and thrust into the Church, against the Conscience and Duty of his Diocesan, who by reason of his Insufficiency, was bound to refuse him Institution.  
Answ. With all due Respect to his Lordship and the Jurisdiction and privileges of the Church; it may in Answer be observed, that the judgement at Law is, that the Patron shall recover the Presentation, not that Mr. Hodder shall have Institution; for now a Writ must go to the metropolitan to require him to admit a fit Person to the Church on Mr. Hele's Presentation; and if he present Mr. Hodder again, and the Archbishop find him insufficient, he may refuse to admit him; so that 'tis not any hardship put upon the Lord Bishop of Exon, or any breach on the Jurisdiction of the Church; for the Archbishop is still Judge of Mr. Hodder's sufficiency; and he is also still liable to the Bishop of Exon's Jurisdiction, who for the same Cause( admitting it sufficient) for which he refused him Institution to a new bnfice, may deprive him of that which he hath already.  
The tender Regard that the Laws of England have to the preservation of the Temporal Rights of English Subjects, was the great Reason that guided the Opinions of the Judges in their Judging of this Case; for should every Ordinary be the absolute Judge of his own Cause of Refusal; and the Temporal Courts be obliged to give judgement on a general Allegation of minus sufficiens in literatura without being informed in what particular the Insufficiency lies; it must from thence necessary follow, that all the Patronages and Advowsons in the Hands of the Nobility and Gentry of England, must be precarious; for then the Ordinary may refuse any Clerk presented by a Rightful Patron, until the six Months be elapsed, and then take the advantage of that delay which he himself occasioned.   
It's therefore humbly hoped, that the judgement given in the Common-Pleas in this Cause, and affirmed afterwards in the King's Bench, will likewise have the Confirmation of this most Honourable House.   

The CASE Of samson Hele Esq; Against The Bishop of Exon,& al.