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As to the second point, whether the king could have a right to present to the rectory after the death of Dr. Vigors, by whose promotion to a bishopric the vacancy happened? Putting what relates to the institution and induction of Drelincourt quite out of the question, it is apprehended, the crown could have no right to present to the church of Armagh, after the death of Bishop Vigors. Because the prerogative of presenting to a church, vacant by the promotion of its incumbent, is not intended to prejudice the patron's right; for the reason every where given in justification of that prerogative is, that the king makes the avoidance, and only fills the church again, and so does no more than exchange one life for another, which cannot be considered as any loss to the patron. This reason holds with regard to those cases which have been adjudged for the crown, where the person promoted is alive, but fails when he is dead at the time of the king's presentation; because the avoidance would then have been without the promotion. And this distinguishes the present case from those of simony and lapse, and other cases of the like kind, where the fault or neglect of the patron is the foundation of the king's right: there the patron forfeits the turn, and the king gains by bis loss; but in the present case, as the patron commits no fault, so he is supposed to forfeit nothing; and therefore, if the king would fill up the avoidance he has made, he ought to do it so as the patron may not be prejudiced; and which cannot be, unless he presents before the death of the former incumbent. It is further to be considered, that when the person promoted is dead, the king has the disposal of his bishopric again; and it is but fit and reasonable, that the effect of the former promotion should cease, when a new one arises: for otherwise, the crown might have several titles of presentation at one and the same time, arising from different and successive promotions to the same bishopric; and after the king had disposed of such benefices as fell in his gift by several later promotions, he might have a title still standing out and not executed, which fell by a former promotion to that very bishopric, even though at the distance of fifty or an hundred years but this is wholly inconsistent with the rule of law, that the king's prerogatives should be exercised in such manner, as not to do an injury to the property of the subject, and which would manifestly be the consequence, if what is now contended for by the defendants should prevail; for if the crown should refuse or neglect to make a formal presentation for ever, as in this case it did for 31 years, and yet permit the benefice to be enjoyed in the same manner as if the crown had presented, the right of the patron would be thereby taken away and destroyed.

As to the objections made against the pleadings, they relate partly to the archbishop's plea, and partly to the plea of the incumbent Whaley: the most material objection to the archbishop's plea is, that it is inconsistent with itself; because it first admits the archbishop to be patron of the rectory of Armagh, and afterwards derives to Drelincourt a title to that rectory, from the grant to him of the deanery by the crown. But this is a mistake; the plea does not derive any title to the rectory to Drelincourt, from or under the grant of the deanary to him, nor does the word prætextu in the plea imply any such thing; and if what is therein mentioned concerning the grant of the deanery be not necessary, yet it is but surplusage at worst, and does not make the plea inconsistent: the force of which consists in its setting forth, that Drelincourt was instituted and put in possession of the rectory of Armagh, and died seised thereof, which is enough to avoid the [516] king's title.—Against the incumbent's plea it is objected, that it confesses and avoids the king's title, and also traverses it; which is contrary to a known rule in pleading. But the traverse is, absq. hoc that the church remained vacant by the promotion of Vigors, and that issue took in the whole merits of the case: supposing it, however, to be in judgment of law an immaterial traverse, yet that fault is cured by several late acts of parliament both in England and Ireland, which direct the judges to give judgment according to the very right, without regarding any immaterial traverse, etc. It is further objected to this plea, that the institution and induction of Drelincourt are therein set forth only as executions of the crown's presentation of him; so that if he was not presented by the crown, which is supposed to be confessed by the subsequent demurrer, he could not of consequence be instituted and inducted on the crown's presentation.—Consequential pleading is vitious, and whatever is affirmed or denied, it ought to be directly and in express words: the institution and induction therefore of Drelincourt are passed over without notice, and the presentation of him which (if the now plaintiffs are right upon the point of law) is not necessary to the incumbent's plea, is alone traversed in the attorney-general's replication; and that