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inducted, and enjoyed it with the deanery for upwards of 31 years, and died in possession; Dr. Vigors, the bishop of Leighlin and Ferns, being dead a short time before him, Upon arguing this cause in Ireland, two points were insisted on by the then defendants, and now plaintiffs in error.

First, That though the king had not presented Dr. Drelincourt, yet that he having upon the institution of the bishop, and induction upon that institution, enjoyed the rectory till his death, the king could not present after Drelincourt's death; one incumbent having died in possession, after the king's right to present on bishop Vigors's promotion accrued, by which the king's turn was either satisfied or lost.

The second point was, That bishop Vigors being dead before the king presented, the king could have no right to present by his prerogative so long after, upon the avoidance that was made by the promotion of bishop Vigors.

This case was argued very often in the King's Bench in Ireland, after which the Judges having taken almost a year's time to consider it, did, in Michaelmas term 1726, give judgment for the defendants on both points.

Whereupon in Easter, or Trinity term 1727, a writ of error was brought in the name of his majesty King George I. by which the record was removed into the King's Bench in England; and the Judges of that court having heard the case argued, were pleased in Easter terin 1728, to reverse the judgment in Ireland.

Whereupon the defendants brought a writ of error in parliament; and on their behalf it was argued.

As to the first point (T. Lutwyche, J. Darnell), that it being admitted in the arguments in both kingdoms, that upon a promotion the crown is only entitled to supply the vacancy occasioned by that promotion, and to fill the church for that turn; it was conceived, that Dr. Drelincourt having been the actual incumbent of the rectory, and having enjoyed it during his life, and dying in possession, the next turn which the crown was entitled to after the avoidance made by the promotion, had been served; and if it was not understood to have been filled by the king, then the king had lost his turn. That upon arguing this matter in Westminster Hall, it was apprehended to have been admitted, that if the archbishop had instituted Dr. Drelincourt upon the presentation of the king or of any subject, though the presentation had been wrongful, or even void, or if the archbishop had collated Dr. Drelincourt without title, the institution upon such void presentation or collation would have filled the church, and the king's turn would either have been [510] served or lost. But it was said, that the institution of Dr. Drelincourt being neither upon a presentation or collation, was merely void, and the church no way filled by it now it was conceived, that the church of Armagh was really full of Dr. Drelincourt, that he was to all intents and purposes rector of the parish, and that there was no ground for such a distinction, either in the common or canon law. Dr. Drelincourt was by his institution and induction enabled to serve the cure and receive the tithes, which he could not be, had his institution been void; and which it would if he had been a simonist, or had not first subscribed the 39 articles; in both which cases, the institution is declared void by act of parliament: but this institution was not void, either by the common, canon, or statute law. It is a known rule in the canon law, that institution gives jus ad rem, et jus in re; and although after institution upon a void presentation or collation, the church is sometimes in the common law books said to be void, yet it is meant, and is true only with respect to the rightful patron; so far that he may present his clerk, as long as his right remains, notwithstanding such institution and induction, and even without first removing the other clerk by quare impedit. But then with respect to the parishioners and all the rest of the world, the former clerk so instituted, etc. is a real and complete incumbent, and may bring any action for his freehold or his tithes, which one not instituted, or whose institution is void, which is the same thing, cannot do. Upon this point, therefore, it was hoped, that the judgment in England would be reversed.

As to the second point, whether the king had a right to present after the death of bishop Vigors? It was conceived, that though the crown may, by its prerogative, present to the benefice which is made void by the promotion, yet the king may not delay to present to it as long as he pleases, but must do it in the life-time of the person promoted; because if the king presents after the death of the person promoted, he presents to a benefice the right of presenting to which is actually become another's, which would be to do a wrong and if the king's turn is to take place after so many