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THE
Clergy-Man's LAW:
Complete Incumbent
OR, THE
1
COLLECTED
From the 39 Articles, Canons, Decrees in
Chancery and Exchequer, as alſo from all the
ACTS of PARLIAMENT
AND
COMMON-LAW CASES,
Relating to the
Church and Clergy
ENGLAND:
Ο F
Digeſted under proper Heads for the Benefit of Patrons
of Churches, and the Parochial Clergy.
And will be Uſeful to all STUDENTS, and PRACTITIONERS
of the LAW.
Ву
WILLIAM WATSON, L.L. D. late Dean of Battel.
With a TABLE of the Contents of the Chapters, and another
of the Principal Matters.
To which is added, the Names of the preſent Biſhops, and other
Chief Dignitaries of the Church of ENGLÅND.
The Third Edition, with large Additions.
Ditos caſtè adeunto, Pietatem adhibento, Opes amovento; Qui ſecus
faxit, Deus ipſe Vindex erit. Leg. xii. Tabular.
In the SAVOY:
Printed by E. and R. NUTT, and R. GOSLING, (Aſſigns of E. Sayer, Eſq;)
for D. Browne, J. Walthoe, R. Goding, W. Apears, w, and
1. Innrs, 1. Dsbojn, T. Woodward, J. Hook, F. Clay, and
3. Stephens. MDCCXXV.
·
4
:
;
C
135-170
3
TO THE
2
/
READER
A
Ltbo’ it might ſeem needleſs to Preface a third Edition of the
enſuing Treatiſe with any preliminary Diſcourſe, (the two
former having to ſucceſsfully paſſed the Preſs, and received from
the learned Part of Mankind that Applauſe they juſtly merited,) yet to
comply with the Requeſt of ſome Perſons of eminent Confideration, and
to ſatisfy the Curioſity of others, we have thought fit in this place to
give the Reader fome brief Account both of the Author and alſo of the
Work; eſpecially of its additional Contents in this Impreſſion.
Firſt," As to the Author, the Title-Page informs you of his Name and
Titles, and the excellent Matter and Method of the Workſhews him to
be of great Learning and Experience therein, and every Way qualified
to write on ſo important a Subje&t; and indeed both the Method of his
Education and the Courſe of his Studies had fully prepared him for
that End.
He had long been converſant in contemplating the Laws of God and
Nature, the Rules of Reaſon, the Precepts of Morality, the Foundations
of Property, the Diſtinctions of Right and Wrong, and whatever
elſe is neceſſary for the Profeſion and Practice of the Civil LAW;
and was accordingly admitted to the higheſt Degree therein, viz. LL. D.
But ſoon after, declining Courts and judicial Clamours, he choſe rather
to wait at the Altar, and devoted his future Life to Religion and the
Service of God.
Our Author being thus employed in a dignify'd parochial Cure, viz.
the Deanery of Battel in Suſſex, he was ſoon apply'd to by his Neigh-
bours, as a Perſon able to adviſe them in the many Doubts and Dif-
ficulties that daily occurred to them ; when finding many of his Bre-
thren moleſted by dubious Titles, and exerciſed with a Multitude of
vexatious Diſputes, he thought it Charity and Juſtice to ſpend ſome va-
cant Hours in ſtating the Tenure of Eccleſiaſtical Benefices, the Capa-
cities and Incapacities of Incumbents, with the Method of Admiſſions,
Inſtitutions and Inductions, and in port, the whole Conftitution of
our Church and Kingdom, relating to the Rights and Properties of
our Engliſh Clergy:
He had read and conſidered the many Tracts writ upon this Argu-
ment by Doddridge, Degg, Godolphin and others, but found them ei-
ther ſo tedious and immethodical in one Reſpect, or so obfcure and im-
perfeet in another, that it induced him to undertake a more metho-
dical, clear and perfect Account of thoſe Matters, with ſuch a full
Reference to all Statutes, Common Law Caſes, and binding Authori-
ties, as to render it a complete Body of the Clergyman's Law.
Secondly, As to the Work, eſpecially this third Edition, it is most
certain, that no Ferformance of this Nature can be a full and con-
Summate Piece in any one Edition, or indeed in any one Age, but it
muft of Neceflity admit of continual Alterations and Improvements ; for
that
2
?*
.
&c.
742
4
To the Reader.
that in every Reign, nay almoſt every. Se lions of Parliament, the
Rights and Cuſtoms of the Church and Clergy may have received ſome
Reſtriction or Amplificattura!
And hence it is, that the Reader will herein find ſeveral Matters,
not inferted in any of the former Editions, as the Original of Ecclefi-
aftugal Benefices, their Kinds, kc. pag. *; 2, 3. Obfervations on the
Stat, 21 H. 8. pag. 13, 14, 01 Statutis P5, 27,
Ed. 6. pag. 172. on the Stat. 3. Car. 2. 6 The. pag18, 1. Additionat
Cauſes of Deprivation, pag. 54, 55. Of Appeals in Eccleſiaſtical Cazia
fes, pag. 56, 579 58, &c. Of the Power of an Archbiſhop to deprive,
&c. pag. 62, 63. Of Advocates* Opi Patrons, and Right of Advowfonis,
pag, 63, 64, 65. Obfervations or St. 7. Anna 18, pag. 71,
134. Of Ufurpations on the King, pag. 8o. Of the Lord Chancellors
Rigtit te toate, pag. 89; Bt. Of the Archbilbop's Right of Option, pag.
81, 82, 83: Rules of Corrion Law torccking Lapte, pag. 118, 119. Of
making Deacons, pag. 145. Of Ordination of Prieſts, Boc. pag. 147, 148.
Of Royal Donatives, pag. 171. Of other Donatives, pag. 172, 173. Of U-
pions of Charckes, &e. pag. 187, 188. Rutes touching Commendams, &c.
pag. 204, 205. Of Arrefts, 8c. on Sundays, pag, 342. With many other
zez additional Cafes and Obevations throughout the whole Treatiſe,
beſide the Addenda of eretting, repairing, and confecrating Churches
and Chapels, and other Matters mentioned in pag. 640.
The Reader will alfo find the following Statutes either recited or.
referred to, which have been enacted ſince the former Editions, viz.
7 Annæ cap. 14. For the better Preſervation of parochial Libraries,
pag. 647.
7 Annæ cap. 18. For preſerving the Right of Patrons to Advozons,
pag. 74, 134.
9 Annæ cap. 22. For building the 50 new Churches, pag. 649.
10 Annæ cap. 11. For enlarging the Time, and giving farther Power
to build the ſaid Churches. ibid.
1 2 Annæ Seſl. 1. c. 17. For Building the news Church in the Strand
and for reſtoring to the Principal and Scholars of King's Hall
and Brazen-Noſe College, the Right of Preſentation to the Churches,
and Chapels in Stepney Pariſh, pag. 652.
12 Annæ Seff. 2. c. 6. For taking away Mortuaries in Wales, and
for annexing certain Prebends to the Maſterſhips of Pembroke and
Oriel College in Oxon, and Catharine Hall in Cambridge. ibid.
12 Annæ Seff. 2. c. 12. For the better Maintenance of Curates, &c.
and preventing Eccleſiaſtical Perfors from buying next Avoidan-
ces, &c. pag. 209, 210.
So that this Treatiſe being as near ås poflible adapted by this 3d
Edition to the preſent State and Circumſtances of Things, we may
without Vanity recommend it as the moſt perfe&t Work of this Kind,
and as the moſt ufeful and beneficial of all others, both to the Biſhops
and their Clergy, to the Magiſtrates and their Pecple, to the Patrons
and their Clerks, to Common Lawyers, Civilians and Divines; and
in brief to all Profeſſions, Orders and Degrees of Men, who are willing
to underſtand the Laws and Conftitutin of the Church and Clergy of
England.
j
2
1
mi
CONTENTS
Several
Chapters
to belong. Of the Right of Patronage, to whom it shall be ſaid
Τ Η Ε
OF THE
HA P. I. Of the Original of Eccleſiaſtical Benefíces, their
Nature, Kinds, &c. By what means they become void. Of
Voidances by the Act of God. From what Time Lapſe fall
incur upon ſuch Avoidances.
Page 1
CHAP. II. Of Voidances by Cellion, both by Canon and by Statute
Law; and of the ſeveral Effects of ſuch Avoidances. Of Benefices
incompatible, &c.
5
CHA P. III. Of Pluralities, Qualifications, Diſpenſations, and Com-
mendams.
CHAP. IV. Of Reſignations, and Exchanges of Benefices. 30
CHA P. V. Of Voidances by Act of Law. Of Simony, &c. 33
CHAP. VI. Of Voidances by taking Orders (or Admiſſion, Inſtitu-
tion, &c.) Simoniacally, or for not ſubſcribing the Articles, &c.
Of Deprivation, the Cauſes thereof, &c. And of the Archbiſhop's
Power in depriving Biſhops, &c.
CHAP. VII. Of the Original of Advowſons and Right of Patro-
nage, and the Nature thereof, both Appendant and in Groſs; and
of a Right by Uſurpation.
CHAP. VIII. Of
the Rights of Coparceners and Tenants in Com-
mon. And of the Statute 7 Annæ, For preſerving the Rights of
Patrons to Advowſons
CHAP. IX. Of Right of Preſentation, by what Means it may paſs
from one perſon to another; how it came to the King by Preroga-
tive. Of the Lord Chancellor's Right therein ; and of the Arch-
biſhop's Privilege of Option.
75
CHAP. X. Of Advowſons and Right of Preſentation, how it inay
be granted over from one perſon to another; and what Grants there-
of are good or not.
83
A
CHA P. XI.
C
II
48
63
71
The CONTENTS
I 19
200
1
2II
CHA P. XI. How and by what Means a Right of Preſentation may
be forfeited.
Page 96
CHA P. XII. Of Lapſe and its Conſequences
107
CHA P. XIII. Of Uſurpation, and the ſeveral Conſequences thereof;
And of the Writ of Right of Advowſon.
CHAP. XIV. Of Ordination, what Orders are neceffary to be taken
to make one Capable of a Benefice. Of Deacons; that Prefer-
nients they are capable of.
141
CHAP. XV. Of Preſentations, Nominations, Collations, Election,
Inſtitution and Induction; as alſo of Donatives (vide cap. 20. plus of
Preſentations, &c.)
149
CHAP. XVI. Of Union of Churches.
180
CHA P. XVII. Of Appropriations; and of Vicarages, and their
Endowments.
189
CHAP. XVIII. Of Commendams. (vide Cap. 3.)
CHAP. XIX. Of Curates and Lecturers
207
CHAP. XX. Of. Preſentations and Admiſſions of Clerks; what Pre-
ſentations are good ; and what are ſufficient Cauſes for the Biſhop's
Refuſal to admit. Of Jure Patronatus ; and of Caveats.
CHA P. XXI. Of Remedies for a Clerk preſented; if the Biſhop
refuſe to admit him, &c. Of Duplex Querela's, and Jure Patrona-
tus.
230
CHA P. XXII. Of Writs of Quare Impedit, Ne Admittas, Quare In-
cumbravit, and Allize of Darrein Preſentment; for what and for
whom maintainable, and upon what Seizin, &c.
237
CHAP. XXIII. How Writs of Quare Impedit and Darrein Preſent-
ment are to be brought.
248
CHAP. XXIV. By whoin, againſt whom, and in what County they
are to be brought ; and what ſhall be ſufficient Cauſe to abate the
Same, &e. and incidently of Jure Patronatus, and Quare non Ad-
miſit.
253
CHAP. XXV. Of Declarations in Quare Impedit, ớ c in what
Manner to be framed, and what ought to be alledged therein. 266
CHAP. XXVI. Of Proceſs and Pleas in Quare Impedits and Dar-
rein Preſentments; and what Pleas are proper, and ought to, or
may be pleaded by the Ordinary, Patron and Incumbent reſpektive-
ly ; and of what Matters the Jury in a Quare Impedit ought to in-
quire
270
CHA P. XXVII. Of Judgnients in Quare Impedits, &c. And of
Writs to be awarded to the Biſhop upon ſuch Judgments. 283
CHAP. XXVIII. The Effects of a Judgment in Quare Impedit and
Darrein Preſentment; and of the Writ awarded to the Biſhop, &c.
to admit, &c. What is to be done upon ſuch Writ; and what Re-
turn the Biſkop may make thereto.
289
CHAP. XXIX.' Of Writs of Error, upon Fudgments in Quare Im-
pedits, and Aſſizes of Darrein Preſentments.
304
CHAP. XXX. Of Remedies on Refuſal of Induction ; and of a Vi
Laica Removenda, and Spoliation.
3:07
CHA P. XXXI. The Miniſter's Duty in reading the Common Prayers,
adminiſtring the Sacraments, &c.
310
CHA P. XXXII. The Statutes for Uniformity of Prayers. Of Ho-
lidays to be obſerved. Of Miniſters bound by Tenure or Covenant to ſay
Divine Service in a Chapel. And of Chapels of Eaſe, &c.
322
3
CHAP. XXXIII.
1
The CONTENTS.
CHAP. XXXII. The Miniſter's Duty in Preaching, &c. Page 335
CHAP. XXXIV. Of Diſturbances in the Church in Time of Divine
Service ; and of Striking, Brawling, &c. in the Church or Church-
Yard, how puniſhed.
340
CHA P. XXXV. The Miniſter's Duty in reading ſome particular Acts
of Parliament and Proclamations; as likewiſe Briefs, Citations;
&c..
349
CHAP. XXXVI. Spiritual Perſons not to take Farms, or buy or fell
for Lucre or Profit, &c.
357
CHAP. XXXVII. Of Reſidence, and Non-reſidence.
362
CH A P. XXXVIII. Of Spiritual Corporations, fole and aggregate,
and of the Statutes concerning Mortmain.
371
CHAP. XXXIX. Freehold of the Church and Church-Yard in whom.
Of Intereſt in, and Power of diſpoſing of Seats in the Church, &c.
Of Church Repairs, Church Goods, &c. Of Endowments of Vica-
rages. Of the diſtinct Rights of Parfon and Vicar. And of Aug-
mentations and Dilapidations.
380
CHAP. XL. Of the Fruits and Profits of Vacant Benefices, to
whom they belong, and how recovered, if detained. What Charges
Parſons are liable to in Reſpect of their Glebe or Tithes. And of
the Temporalities of Biſhops in Time of Vacation, &c.
401
CHAP. XLI. What Eſtates Eccleſiaſtical Perſons might have made
at Common Law; and how their Power is enlarged or leſened by
Act of Parliament. And the ſeveral Acts of Parliaments relating
thereto.
414
CHAP. XLII. What Leaſes and Eſtates Biſhops, &c. may make, and
the Rules to be obſerved in making ſuch Leaſes and Eſtates : And
what Offices, &c. they may grant, and how, &c.
CHAP. XLIII. Of Leaſes by Parfons, Vicars, and others of their
Eccleſiaſtical Benefices.
455
CHAP. XLIV. By whom Leaſes made by Eccleſiaſtical Perfons are
to be confirmed, and what Confirmations are good. Of Variances
in Leaſes, &c. And miſnaming Corporations.
462
CHA P. XLV. Of Leafes void, and voidable, voidable Leaſes how
made good, or actually void ; Entries how to be made. Diſcontinu-
ance, and Aid-Prayer. Judgments in real Actions, to whom bind-
ing, &c.
477
CHAP. XLVI. Tithes, of what due. Tithes in London, low pay-
able. Tithes of Houſes, &c.
486
CHA P. XLVII. The ſeveral Ways and Means how Lands may be
diſcharged of Tithes at Common Law. Of Real Compoſitions,
Modus Decimandi, Non Decimandi, &c. And if Glebe Lands
ſhall pay Tithes.
500
CHAP. XLVIII. Lands, how diſcharged of Tithes by. feceral Acts of
Parlianicnt. What Abbies were diſcharged of Tithes. A Catalogue
of Abbies above 200 l. per Ann. Value diſolved by the Statue of
31 H. 8. Of Unity of Poſſeſſion, and of Barren Land. 515
CHAP. XLIX. Prædial Tithes, what, and in what Manner pay-
able. And what Modus Decimandi in Diſcharge of ſuch Tithes is
good.
CHAP. L. Mixt Tithes, as of Cattle, Fowls, Agiſtments, Gc.
when, and in what Manner payable. And what Modus, &c. is good
to diſcharge ſuch Tithes.
554
CHAP. LI.
426
ز
538
The CONTENTS
***
CHAP. LI. Perſonal Tithes, what ; by whom, and in what Manner
payable.
Page 564
CHA P. LII. Of Mortuaries, Offerings, oblations, Obventions, & cum
569
CHAP. LIII. In what Courts, Tithes, Mortuaries, Ollations, and
other Church Duties, are to be ſued for.
575
CHAP. LIV. Of the Statutes 32 H. 8. & 2 & 3 Ed. 6. for Payment
of Tithes, what ſhall be a ſufficient ſetting forth of Tithes, where
the Double, or treble Value ſhall be for not ſetting them forth; and
in what Courts to be ſued for.
1586
CHAP. LV. Small Tithes and other Church Duties ; how to be re-
covered. Suggeſtions to obtain Prohibitions; how to be made and
proved. A Modus Decimandi, if ſuable for in the Spiritual Court.
589
CHAP. LVI. Of Cuſtom or Preſcription; if Triable in the Spiri-
tual Court. Prohibitions, if to be granted to prevent ſuch Tri-
als.
614
CHAP. LVII. Where, and by what Plea, the Spiritual Court ſhall
be ouſted of Juriſdiction; and upon, what Suggeſtions Prohibitions
(in ſuch caſe) are to be granted.
CHAP. LVIII. Of Actions on the Statute of 2 & 3 Ed. 6. cap. 13,
for not ſetting forth of Tithes, by whom and againſt whom to be
brought. And of Declarations, Pleas, Evidences, Verdiets and
Judgments in ſuch Actions.
632
621
A D D E N D A.
640
642
643
I. Of erecting and conſecrating Churches.
II. Of Rates for Repair of Churches.
III. Of repairing and ordering the Seats in Churches.
IV. Of repairing Chancels, and ordering the Seats therein.
V. Of Chapels under the Mother-Church.
VI. Of Free Chapels, &c.
3
644
645
646
1
1
THE
1
i
1
On the Occaſion of Inſtitutions, Inductions, and many other Ap-
plications to Ecclefiaftical Ordinaries; It is very neceſary for the
Clergy to know the Names and Titles of the preſent Archbiſhops
and Biſhops, Governors, and chief Dignitaries in the Church of
England. For which Reaſon the enſuing Table may be very uſeful
.
Province of CANTERBURY.
L
1
Dioceſe of CANTERBURY. Archdeacon of Surrey, Richard Furney',
M. A.
Ord Archbiſhop, Dr. William Wake, Chancellor of the Dioceſe, Sir Peter
Primate and Metropolitan of All Mezz, L. L. B.
England, tranſlated from the See of
Lincoln, Decemb. 17, 1715.
Dioceſe of Ely.
Dean of Canterbury, George Stanhope,
D. D.
Lord Biſhop, Dr. Thomas Greene, tranſ-
Archdeacon of Canterbury,
lated from the See of Norwich, Sept.
Teniſon, D. D.
24, 1723
Vicar General, George Paul, L. L. D. Dean of Ely, Robert Molle, D. D.
Archdeacon of Ely, Richard Bentley,
Dioceſe of LONDON.
D. D.
Chancellor of the Dioceſe, James John-
Lord Biſhop, Dr. Edmond Gibſon, tranf- son, L. L. D.
lated from the See of Lincoln, May
4, 1723
Dioceſe of LINCOLN.
Dean of St. Paul's, Henry Godolphin,
D. D.
Lord Biſhop, Dr. Richard Reynolds,
Archdeacon of London, William Stanley, tranſlated from the See of Bangor,
D. D.
June 10, 1723.
Archdeacon of Middleſex, Roger Altham, Dean of Lincoln, Edward Gee, D. D.
D. D.
Archdeacon of Lincoln, Nichol
Archdeacon of Elex, Thomas Gooch, ſon, A. M.
D. D.
Archdeacon of Leiceſter, David Trim-
Archdeacon of Colcheſter, John King, nell, D. D.
D. D.
Archdeacon of Huntingdon, John Stur-
Archdeacon of S. Albans, Philip Stubbs,
A. M.
B. D.
Archdeacon of Bucks, Nicholas Clagett,
Chancellor of the Dioceſe, Humphrey D. D.
Henchman, L. L. D.
Archdeacon of Bedford, Thomas Frank,
D.D.
Dioceſe of WINCHESTER. Archdeacon of Stow, Lawrence Echard,
A. M.
Lord Biſhop, Dr. Richard Willis, tranf-Chancellor of the Dioceſe, George Newell,
lated from the See of Salisbury, L. L. B.
Sept. 21, 1703.
Dean of Wincheſter, William Trimnell, Dioceſe of LITCHFIELD and Coventry.
D. D.
Archdeacon of Winton, Ralph Brideoake, Bord Biſhop, Dr. Edward Chandler, con-
A. M.
fecrated Novemb. 17, 1717.
ges, A.
A
Dean
I
A Table of the chief Dignitaries.
:
gett, D. D.
:
Dean of Litchfield, William Waluiſley, Archdeacon of Totnes, Nicolas Kendall,
D.D.
A. M.
Archdeacon of Coventry, William Wil. Archdeacon of Barnſtaple, Lewis Ste-
ſon, A. M.
phens, M. A.
Archdeacon of Derby, Henry Rider, Chancellor of the Dioceſe, William
A. M.
Steward, S. T. P.
Archdeacon of Stafford, Thomas Allen,
D. D.
Dioceſe of NORWICH.
Archdeacon of Salop, Griffith Vaughan,
D. D.
Lord Biſhop, Dr. John Leng, confecra-
Chancellor of the Dioceſe, Henry
ted, Novemb. 3, 1723.
Raines, L. L. D.
Dean of Norwich, Cole, D.D.
Archdeacon of Norwich, Chriſtopher
Dioceſe of SALISBURY.
Clarke, A. M.
Archdeacon of Norfolk, Thomas Tanner,
Lord Biſhop, Dr. Benjamin Hoadly,
D. D.
tranfiated from the See of Hereford, Archdeacon of Sudbury, Nicholas Cla-
Octob. 29, 1723
Dean of Sarum, John2 Younger, D. D. Archdeacon of Suffolk, David Wilkins,
Archdeacon of Sarum, John Hoadly,
D.D.
D.D.
Chancellor of the Dioceſe, Thomas
Archdeacon of Berks, Maurice Ben Tanner, D. D.
Con, A. M.
Archdeacon of Wilts, Thomas Rundle, Dioceſe of WORCESTER.
A. M.
Chancellor of the Dioceſe, Charles Nay- Lord Biſhop, Dr. John Hough, tranf-
lor, A. M.
lated from the See of Litchfield and
Coventry, Sept. 7, 1717.
Dioceſe of Bath and WELLS. Dean of ivorceſter, Francis Hare, D. D.
Archdeacon of Worceſter, William Worth,
Lord Biſhop, Dr. George Hooper, was D. D.
tranſlated from the See of St. Aſaph, Chancellor of the Dioceſe, -Birch,
March 14, 1703.
L. L.D.
Dean of Wells, Matthew Brailsford,
D.D.
Dioceſe of HERE FOR D.
Archdeacon of Wells, Henry Layng,
D. D.
Lord Biſhop, Dr. Henry Egerton, con-
Archdeacon of Taunton, Edmund Ar fecrated Feb. 1724.
cher, D. D.
Dean of Hereford, Dr. Robert Clavering,
Archdeacon of Bath, William Hunt, Lord Biſhop of Landaff.
D. D.
Archdeacon of Salop, Robert Comyn,
Chancellor of the Dioceſe, John Pope, A. M.
A. M.
Archdeacon of Hereford, Thomas Fox,
A. M.
Dioceſe of EXETER. Chancellor of the Dioceſe, Edward Wynn,
L. L. D.
Lord Biſhop, Dr. Stephen Weſton, con-
fecrated Decemb. 27, 1724.
Dioceſe of CHICHESTER.
Dean of Exeter, Edward Trelawney,
A. M.
Lord Biſhop, Dr. Edward Waddington,
Archdeacon of Exeter, Edward Tre conſecrated OEtober 9, 1724.
lawney, A. M.
Dean of Chicheſter, Thomas' Sherlock,
Archdeacon of Cornwall, Edward Drew, D. D.
A. M.
Archdeacon of Chicheſter, James Barker,
3
D. D.
Arch-
I
of the Church of England.
Archdeacon of Lewes, Fames William- Dean of Briſtol, Robert Booth, D. D.
(09, A. M.
Archdeacon of Dorſet, Robert Cooper,
Chancellor of the Dioceſc, George 70r-
A. M.
dan, A. M.
Chancellor of the Dioceſe, Charles Slo-
per, D. D.
vens, A. M.
3
Dioceſe of ROCHESTER.
Dioceſe of St. DAVID.
Lord Biſhop, Dr. Samuel Bradford, tranf-
lated from the See of Carliſle, July Lord Biſhop, Dr. Richard Smallbroke,
19, 1723.
confecrated Feb. 1724
Dean of Rocheſter, Nicolas Clagett, Precentor, John Davies, D. D.
D. D.
Archdeacon of Brecknock, Joſeph Ste-
Archdeacon of Rocheſter, Henry Bridges,
D. D.
Archdeacon of St. Davids, John Mid-
Chancellor of the Dioceſe, Humphrey ley, D. D.
Henchman, L. L. D.
Archdeacon of Caermarthen, Edward
Teniſon.
Dioceſe of OXFORD. Archdeacon of Cardigan, John Parry,
A. M.
Lord Biſhop, Dr. John Potter, confe-Chancellor of the Diocefc,
crated May 15, 1715;
Fones, L. L. B.
Dean of Chriſt-Church, Dr. William
Bradſhaw, Biſhop of Briſtol.
Dioceſe of LAND AFF.
Archdeacon of Oxford, William Baker,
D. D.
Lord Biſhop, Dr. Robert Clavering, con-
Chancellor of the Dioceſe, Charles Tal fecrated Jan. 1725.
bot, L. L. B.
Archdeacon of Landaff, John Evans,
A. M.
Dioceſe of GĽOCESTER. Chancellor of the Dioceſe, IJilliam Beau.
L. L. D.
Lord Biſhop, Joſeph Wilcox, confecra-
ted Decemb. 13, 1721.
Dioceſe of BANGOR.
Dean of Gloceſter, John Frankland,
D. D.
Lord Biſhop, Dr. William Baker, con-
Archdeacon of Gloceſter, Nathaniel Lye, fecrated July — 1723.
D. D.
Dean of Bangor, John Jones, D. D.
Chancellor of the Dioceſe, Sir Henry Archdeacon of Bangor, William Ld.
Penrice, L. L. D.
Archdeacon of Angleſey, 3Bp. of Bangor.
Archdeacon of Merioneth, Richard
Dioceſe of PETERBOROUGH. Langford, A. M.
Chancellor of the Dioceſe, Dr. Owen.
Lord Biſhop, Dr. White Kennet, conſe-
crated Novemb. 9, 1718.
Dioceſe of St. As APH.
Dean of Peterboroug??, Lockyer,
D. D.
Lord Biſhop, Dr. John Wynn, conſe-
Archdeacon of Peterborough, Richard crated Feb. 6. 1714
Cumberland, A. M.
Dean of St. Aſaph, William Stanley',
Chancellor of the Dioceſe, Rey D. D.
nolds, L. L. B.
Archdeacon of St. Aſaph, John, Lord
Biſhop.
Dioceſe of BRISTOL. Chancellor of the Dioceſe, Dr. Robert
Wynne.
Lord Biſhop, Dr. William Bradſhaw,
confecrated
1724
Province
A Table of the chief Dignitaries, &c.
Province of YORK,
Dioceſe of York.
Archdeacon of Northumberland, Tho-
Mas Sharp, A. M.
Ord Archbiſhop, Dr. Lancelot Black-Chancellor of the Dioceſe, Dr. Exton
burn, Primate and Metropolitan of Sayer.
England, tranſlated from the Sec of
Exeter, Nov. 28, 1724.
Dioceſe of CARLISLE.
Dean of York, Henry Finch, D. D.
Archdeacon of York, Charles Blake, Lord Biſhop, Dr. John Waugh, conſe-
D. D.
crated Octob. 13, 1723.
Archdeacon of Eaſt Riding, Heneage Dean of Carliſle, Thomas Tullie, D. D.
Dering, D.D.
Archdeacon of Carliſle, George Fleni-
Archdeacon of Cleveland, John Richard ming, D. D.
ſon, A. M.
Chancellor of the Dioceſe, Thomas
Archdeacon of Nottingham, Robert Tully, D. D.
Marſden, D.D.
Vicar Ġeneral, Dr. John Audley.
Dioceſe of CHESTER.
Dioceſe of DURHAM. Lord Biſhop, Dr. Francis Gaſtrell, con-
fecrated April 4, 1714.
Lord Biſhop, William Talbot, tranf- Dean of Cheſter, Allen, D. D.
lated from the See of Salisbury, Sept. Archdeacon of Cheſter, John Thane,
23, 1721.
D. D.
Dean of Durham, John Mountague, Archdeacon of Richmond, William Strat-
D. D.
ford, D.D.
Archdeacon of Durham, Dr. Robert Chancellor of the Dioceſe, Peregrine
Booth.
Gaſtrel, L.L. B.
!
3
+
.
.
1
Chap. I.
I
THE
Clergy-Man's LAW:
1
OR,
The Complete Incumbent
.
1
CH A P. I.
.
Of the Original of Ecclefiaftical Benefices,
their Kinds, &c. by what Means they be-
come void. Of Voidance by the Act of
GOD. From what Time Lapſe ſhall incur
upon ſuch Avoidances.
T
cal benefic
teg.
Bencficium
HE Subject Matter of the enſuing 'Treatiſe more eſpeci- Ecclelalti-
ally relating to the Laws of Eccleſiaſtical Benefices, it
may not be thought improper in the firſt Place to give
the Reader the proper Senfe of the Word Beneficiilni,
with a general View of the Original Inſtitution and Ere-
<tion of Eccleſiaſtical Benefices, and ſhew their ſeveral kinds, Natures
and Qualities with their reſpective Incidents, Privileges and Appen-
dixes.
I ſhall therefore begin with a Definition or Explanation of the
Word Beneficium or Benefice, tho' now properly reſtrained to ſignify explained.
an Eccleſiaſtical Living, Dignity or Preferment. Yet its Uſe original- Vide Con-
ly ſeems to have been founded on the Feudal Law, and therein to Feudor. Lih.
fignify ſuch a Portion of Lands or other immoveable Things, as were 1. Tit. 1. &
freely granted by Lords and great Men to their Vaſſals or Dépendants Strikii Exa-
for their Stipends or Maintenance; and at firſt were called Munera or Re- Feud. c. 2.
wards, while revocable at the Will of the Lord, but Beneficia or Bene- g19
fices, when Temporary, or held for a certain limited Time, as for Life
pius Benefi-
or Years, &c. But when by Degrees thoſe Temporal Tenures became cium dicitur.
Perpetual and Hereditary, they then left their former Name of Benefi- Vide Cowell
cia, (which were only Temporary for Life,) as more peculiarly a- Spelman of
dapted to the Eccleſiaſtical Livings, and retained to ſuch Temporal Feuds, c. 2.
Tenures the proper Name of Feuds.
& cjus Glofa
But Verbo De-
Feudum fæ.
ſarium in
B
nef.
.
mil
.
.
2
The Clergy-Man's Law: Or, Chap. I.
Barlow's
Remains,
pag. 169.
Sclden of
&c. Preface
Vide Codi-
1661.
4.
Ats c. 6.
Rom. c. 12.
V. 13.
I Cor. c. 6.
Ecclefialtia
But as to Eccleſiaſtical Benefices we may obferve, That no ſuch
ral Bencfi
Thing, as the Word is now urderſtood, could be in Being in the earli-
ices.
er 'Times of Chriſtianity. For (as Biſhop Barlow and others have
obſerved) Tythes or Eccleſiaſtical Benefices were never heard of for
many Ages in the Church, and that no Mention is made of them in
the Grand Codex of Canons, which ended in the Year 451. and next
Tythes 82, the Bible is the moſt authentic Book in the World. And it thereby ap-
thereto 18. pears, That both Churches and Churchmen, during that whole Tinie,
were maintained by Free Gifts and Oblations only.
cem Juſtelli.
'Tis further obſervable, that in the Beginning of Chriſtianity, the
p. 1610, &
Church of Jeruſalem had all Things in Common, they fold their
A &s c. 2. & Goods and Éſtates, and brought the Money into a common Cheſt or
Treaſury, and by a peculiar Bond of Charity contributed all they had
to the Support of the Church and their Holy Religion : they made at
firſt the Apoſtles themfelves Overſeers and Superintendants of ſuch
Cheſt or 'Treaſury, who diſtributed to all Men according to their wants ;
but as the Number of Believers increaſed, the Apoſtles found they could
not well execute their Offices of a higher Calling, i.e. Praying, Preach-
ing, Baptizing, Jr. and likewiſe attend on thoſe daily, perhaps hourly,
Diſtributions; whereupon with Conſent of the whole" Church, they
created ſeven Deacons, whoſe Office was to attend on and relieve the Ne-
'ceſſities of the Believers, out of the Stock depoſited in ſuch common
Cheſt, which Stock we may well eſteem the firſt Inſtance of an Eccle-
ſiaſtical Benefice.
"Tis true we have no Authority from Scripture or Eccleſiaſtical
Hiſtory, That this Practice of the Church at Jerufaleni, as to a Com-
V. 67.
munity.of Goods, c. was comply'd with by the Churches of other
Places. On the contrary, 'tis very certain, that the Churches at Rome
and elfewhere kept up a Propriety in Things, even in the earlieſt Times,
Epheſ. c. 4.
as will abundantly appear from the Texts cited in the Margin ; and
that other Churches practiſed the like, appears from 1 Tim.c, 6. where
Collof. C. 4. the Rich are exhorted how to uſe their Riches, and St. John alſo ap-
proves of the like Propriety in his firſt Epiſtle, c. 3. v. 17. fo does St.
2 Theſ. c. z. Paul, Heb. c. 13 v. 5:16. and St. James in the ad Chapter of his Epi-,
ſtles, 2. 15, 16.
But it muſt be confeſſed, That thoſe other Churches had alſo, like
Rom. c. 15. that of Jeruſalem, a general Cheſt or Treaſury, whereto ſuch Chri-
1 Cor. c. 16. ſtians, as reſorted to their Aſſemblies, brought their voluntary Gifts and
2 Cor. c. 8. Oblations. This is Evident both from divers Texts of Scriptures, and
the Writings of the elder Fathers; for Juſtin Martyr in his ad Apo-
logy, and Tertullian in his Apology, ſpeak of ſuch Gazophylacium, or
Treaſury-Cheſt, wherein were depoſited the monthly Oblations, and
thereout were the Prieſthood maintained, which were the only Benefi-
ces they then enjoy'd.
Vide Hofpi-
Theſe monthly Collections (though ſomewhat varied in the Form
nian do and Manner of collecting) ſeem to have continued both in the Eaſtern
Origine bo- and Weſtern Churches down to the Time of St. Cyprian, (who men-
nor. Eccle-
tions them) i.e. circa Annum 240. about which 'Time Fabian Biſhop
of Rome (as 'tis faid) ordained, that the Oblations of Bread, Wine,
&c. which formerly uſed to be every monthly Sunday, ſhould thence-
forth be made weekly, i. t. every Lord's-day, and it is probable,
that other Churches foon followed this Order, whereby the Clergy be-
came better ſupply'd.
Gal. c. 6.
V. IO.
V. 28.
Phil. c. 4.
I Thef. c. 2
4.
Aēts c. 11.
fiafticor,
i
1
1
But
1
I
:
Chap. I.
3
The Complete Incumbent.
cal Benefis
cerita
Vide Hofpi
pra.
Chriſtian
But ive have no good Authority to prove that they had then any Ecclefiafti:
other Manner of Benefices than thoſe before-mentioned.
Indeed Origen (who lived about 215) mentions Church Revenues; un
and the Church of Rome pretends to have Lands and Poffefſions in the Origen Homº
Time of Antoninus Pius, i. e.circa Ann. 1:40. and to prove it produces thæum c. 16.
a Decretal Epiſtle of Pope Pius II. but 'tis plain Origen meant no
more than the voluntary. Oblations before-mentioned; and the Epiſtle
of Pope Pius has been long ſince proved to be forged and fpurious.
And both Origen ånd St. Cyprian ſew that the Clergy of their Times, niat, nemu-
i. e. circ. 250. were maintained by Free Gifts and Oblations only. Vid.
Qrig. Hom. 11. in Numb. and Cyprian, Lib. I. Epift. 7.
But not long after, i. e. in the Reign of the Emperor Valerian, Note, ſome
who began Anno 256, we have good Proof of the Churches being Decrec to
poſſeſſed of Houſes and Lands, Pope Urban about that 'Time decree- the Time of
ing, ut Ecclefia prædia ac Fundos a fidelibris öblatos reciperet; hac ta Philip 1.
men lege, ut divideretur proventus Clericis oinnibus viritiin, nihilque Emperor.
cujuſpian privat un eflet, ſed in Commue Bonam. Hereby the Church
was firſt enabled to take Grants and Donations of Lands, but on this
exprefs Condition, That the Rents and Profits thereof ſhould be apply:
ed to the Maintenance and Support of the whole Body of the Clergy
in common, and this may be denominated a ſecond kind of Church
Benefices.
"Tis obſervable from Hiſtory, That under this Pope Urbań, the Church,
(now abounding with Superfluities) began to affect Pomp and Gran-
deur, uſed in the Adminiſtration of the Lord's Supper, Veſſels of Gold
and Silver which hitherto had been only of Wood or Glafs.
And although from this Time to that of the Emperor Conftantine
the Great, the State of the Church was very uncertain, by reaſon of the
different Affections of the feveral Emperors towards it; yet we find
both the Power and Profits thereof were ſtill encreaſing:
For tho Valerian, towards the End of his Reign for about two Years,
(i. €. Annis 258, 259.) perſecuted the Chriſtians, yet his Son and Suc-
ceffor Gallienus reſtored Peace to the Churchi, under whom it flouriſh
ed near ten Years, beſides which Aurelian (who began Anno 269.)
was firſt well affected thereto; and when he afterwards became a Perú
fecutor, he within two Years ended his Life, circa Ann. 275. and ther:
is fo little faid of his four next Succeffors, i. e. Tacitus, Florianus,
Probus and Carus, that we may well conclude they did little harm to
the Church, nor indeed had they Time or Leiſure to effect it, theit
Reigns being tumultüary, and ſcarce extending in the whole to nine
Dioclefian ſucceeded Airno 284. and for his firſt eighteen Years the
Church enjoyed a tolferable Quittneſs. Indeed in his 19th Year, 'tis
faid he commenced Tyrant and Perfecutor; ſo that he ſubverted the
Chriſtian Church, burnt their Bibtes, confiſcated their Goods; &c. and
this ſevere Perfecution by him and Maximinus, laſted fome faý ten Years,
but by others it laſted not much above two Years. For Anno 3o2. both
thoſe Emperors abdicated their Governntents and in the Year 206.
Conſtantius dying at York, his fome Conſtantine the Great fuceeđed,
and from the Beginning was favourable to the Chriſtians. Indeed at the
ſame Time Maxentius tyrannized over and perfecured the Chriſti-
ans, but in the Year 311. Conftantine overcame and flew him, and
thereupon publiſhed his Edićts in favour of the Chriſtians, which li
cenfed the Building and Endowment of Churches, and thereby eſta-
bliſhed
1,
Years.
4
The Clergy-Man's Law: Or, Chap. I.
ces.
9
Seld, of
204, 209.
Écclefiafti- liſhed that Species of Eccleſiaſtical Benefices which the Church is at
cal Benefis this Time poſſeſs'd of.
But though this was the Original of Ecclefiaftical Benefices, yet the
Method of conferring the fame by Admiſſion, Inſtitution and Induction,
was not introduced till long afterwards; for many Ages after Conſtan-
tine's Time, whoever founded a Church had the Power of conferring
the farne by Donation only, or if it were erected in a City or popu-
lous Town, the fame was often conferred by Elcetion of the Pcople,
of which Eufebius gives fome Inſtances in the Eaſtern Church, and di-
vers of the Ancient Canons Thew the like to have been practiſed in the
Weſtern Church, and Mezeray ſpeaking of the Practice of the Gallican
Church about the roth Century ſays, That till that Time the Voice
of the People in conferring Church Benefices were eſteemed the Voice
of God.
And as to the Ancient Practice here in England, it may be proved
by good Authority, that the Patrons of Churches did originally either
grant the fame by Donation only, or (which is of like kind) confer
them on their Clerks by Collation and Livery, in like Manner as they
ſtill do to free Chapels and Donatives. Vide 3. Salk. 195. And that
Patrons here in England continued ſo to do, till this Right of Donati-
on or Collation was extorted from them by Papal Canons and De-
Tythes, p. cretals, appears from the Authorities cited by Mr. Selden in his Hiſtory
86, &c. of Tythes. Chap: 6.par. 2.& chap. 9.par. 4. &c.
Ibid. p. 198,
And as the ſaid Mr. Selden has alſo ſhewn us, that Tythes were not
eſtabliſhed here in England, till towards the End of the 8th Century,
i.e. circa Ann. 786. fo I take it no Eccleſiaſtical Bencfice could properly,
as the Word now ſignifies, be erected here, till about the fame 'Í'ime.
For as Tythes and Eccleſiaſtical Benefices appear then to be Correlata,
and that one could not exiſt without the other, ſo it alſo appears,
whenever any Ecclefiaftical Perfon had any Portion of Tythes granted
to him out of certain Lands, this naturally conſtituted an Ecclcſiaſtical
Benefice; the Granting of the Tythes of ſuch a Manor (or Pariſh) be-
ing in Fact a Grant of the Benefice, as a Grant of the Benefice does
imply a Grant of the 'Tythes. And thus the Relation between Patrons
and Incumbents, where the Church was of the Lord or Patron's Founda-
tion became analogous to that of Lord and Tenant by the Feudal Law.
And this ſhall fuffice as to the Original of Eccleſiaſtical Benefices.
Now the Law relating thereto, ſerves chiefly to reſolve theſe
ral Queſti- two General Queſtions: Firſt, by what Means a Perſon may
ons relating make himſelf complete Incumbent of an Eccleſiaſtical Benefice?
Secondly, What are the Effects of a complete Incumbency? In ſpeaking
Vid. ca. 14, to the Firit of which, (before I ſpecify the ſeveral Ways, by which a
Perſon may take a Title to an Eccleſiaſtical Benefice) i mall ſhew,
what Things are to be known and done in order thereunto.
Things to Firft then: A Perſon that would be beneficed with an Ecclefiaftical
Preferment, ſhould be inſtructed, by what Means ſuch Preferments do
become void; to the End, that he may find out ſome vacant or void
Voidance by Place, worthy his Acceptance. Now Voidances of all Ecclefiaftical
and Spiritual Preferments do happen, either by the Act of God, by the
Act of the Party incumbent thereof, or by the Act of the Law.
The moſt uſual and known Means, by which any Spiritual Promo-
tion doth become void, is by the Act of God, viz. the Death of the
Incumbent thereof; and ſuch Avoidance doth commence from the Day
of the Dcath of ſuch Incumbent; and the Patron isoblig'd to take Notice
Two Gene-
to an In-
cumbent.
15.
be known
in order to
the Firſt.
Death.
1. Avoi-
dance by
Weath.
)
I
of
Chap, II. The Complete Incumbent. .
5
of it at his Peril, and not to expect an Intimation from the Ordina- Woidance by
Celloni, fyric
Iy, Mich. 15 El. 3. Leon. 46. Jenk. Cent. 8. Caſe 92. Mich. 15 16.
El. Dyer 327. A. The Law, I find, hath been holden to be, that:
the fix Months for Lapſe, upon ſuch an Avoidance, ſhould not be ac- Lapſe.
counted but from the Time the Patron could reaſonably be ſuppoſed to
have Notice of the Incumbent's Death ; eſpecially if the Patron or In-
cumbent ſhould happen to be beyond the Seas, or in ſome remote
County within the Rcalm, at the Time of ſuch Avoidance. And
there hath been alſo a Canon made to that Purpoſe, Roll's 2 Abr. 363.
But by the Common Law of England, the fix Months ſhall
, I ſup- From whac
poſe, be accounted from the Time of the Death. Catesby's Café, Time to be
6 Co. 62. Dr. and Student. cap. 31. f. 116. Degge's Parl. Counjel-
lor, f. 10.
CHAP. II:
Of Voidance by Ceſſion, both by Canon, and by
Statute Law; and of the ſeveral Effects
of ſuch Avoidances. Of Benefices incomi-
patible.
3
TH
Second Bc-
In nefice.
1
HE next Means, by which a Church Preferment doth become 2. Voidance
void, is by the Act of him that is the Incumbent thereof; which by Cellion
is either by his Ceſſion or Reſignation: A Church-Preferment is ſaid i R.cfigna-
to be void by Ceſſion, when the Incumbent thereof doth take a ſecond
Benefice that is incompatible; (what Bencfices are incompatible; will
afterwards appear in this Chapter.) And Firſt, if an Incumbent of a By Ceſſion
in taking a
Benefice, with Cure of Souls, doth take a Benefice with Cure, Hil.
41. El. Digby's Cafe, Co. f. 79. d. Pafch. 9 Jac. Davis, f. 68.
which Cafe, his Firſt Benefice was either of leſs or greater Value than
8 1. per Ann. if of lefs Value, yet by his Acceptance of a Second with
Cure, it is at this Day in Jure void by the received Canon Law, Hil.
22 Jac. Evans and Aſ cough's Caſe, Latch. 243. And there needs not
any Sentence Declaratory in the Spiritual Court, to make way for the
Patron's Preſentation ; for he may immediately thereupon (without ei-
ther Deprivation or Reſignation) preſent a new Incumbent to the faid
Church, and require his Admiſſion, 25 E. 3. 55. b. Dr. Stud. 126.
b. 26 E. 3. 1. Trin. 14 Car. B. R. King v. Baldock, 2 Roll's Abr. 360
5
E. 3. 9. Hil. 22 23 Car. 2 Shute v. Higden. Vanghan 131.
24 E. 3. 30 & 33. 9 E. 3. 22. 10 E. 3. I. 11 H. 4. 37. b. & 60. 12
H. 8. 6. 14 H. 17. Fitz. N. B. 34. Trin. 39 El. Armiger v. Holland,
Moor 542 8 Holland's Cafe, 4 Co. 75. Hil. 22. 7a. Evans and Lun. V.
Afcough. Palmer 470. And if the Biſhop doth refuſe the Patron's
Clerk, a Quare Impedit lies for the Patron, Trin. 14. Car.the King v.
the Biſhop of London, and Baldock, fones 405. yet there ought to be
a Sentence Declaratory of the Deprivation in the Court Chriſtian, that
be given thereof, as Popham faid, Hil. 43 El. Robins v. Declaratory,
Prince. Goldsborough 166. Hil. & car. King v. Prift. Jones 336.
С
And
Hil.
Scrtcncc
Notice may
6
The Clergy-Man's Law: Or, Chap. II.
A
on.
Lateran.
101.
tion.
Notice.
Woidance. br And it is ſaid, 10 Ed. 3. 1. that in ſuch Cafes, both Churches ſhall
Cercior, Escabe void; that is, if the Clerk continue as Incumbent of the Firſt
, af-
ter he hath taken a Second without Diſpenſation (as in that Cafe was -
done) for the Space of two Months; or however, if he contend in Law
to retain the Firſt: See Robin's Caſe v. Glover and Prince, Hil. 38
El. Moor 434. And by Perning, in 10 E. 3. 1. A. the Conſtitution of
Contificati Plurality, is a general Judgment, and ſtronger binds upon Deprivation,
than the particular Judgment of any Perſon: For a particular Depri-
vation may be avoided by Appeal, the other not; and it is ſaid, per
Council of Cur”, that the Council of Lateran was a general Law received in Eng-
land, and is as forcible as an Act of Parliament, which concludes all
Parties, Paſch. 1657. in Scaccar. Stavely v. Ullithorn, Hardres Rep.
But ſome Opinions are, That the Church is not void, but by
Deprivation, 5 E. 3. 9. 11 H. 4. 37. 17 E. 3. 59. And that the ta-
king of a Second Benefice with Cure in ſuch Cafe, until Deprivation,
If no Ceſſion is no Ceſſion, Paſch. 26 El. Godbolt 23. But this is to be under-
till Deprive-
ſtood to the Diſadvantage of the Patron : that is, to the making of a
Lapſe. Lapſe run from the Ceſſion, no Notice being given to the Patron there-
of, Trin. 39 El. Armiger v. Holland, Moor 542. Hil. 41. El. Digby's
Caſe, 4.Co. 79. and Jones 404. For until after ſuch Clerk is actually
deprived of his Firſt Benefice, and Notice thereof given to the Patron,
he (thoʻhe may) yet need not preſent : But then, after fuch Deprivati-
on, the Church is void in Fašto & Jure, ſo that he muſt at his Peril
preſent; and ſo all the Books are well reconciled, faith Coke, Trin. 14
Car. B. R. in Baldock's Caſe by Jones and Barkly, Roll's Ab. 2. 3643
and 365. Trin. 39 Eliz. Co. 4. Holland's Caſe, 75 Hil. 19 Car. the
King v. Priſt, i Croke 39 and 40. El, Armiger v. Holland, 3 Croke
601. T'he ſame Cafe in Moor, 542 Hill. 22 and 23 Car. 2. Shute v.
Heigden. Vangh 131.
And if an Incumbent of a Church with Cure, under 8 l. per Ann.
If Diſpenſa- doth take a Second Benefice with Cure, in which he is alſo inſtituted
and inducted, (no Diſpenſation being obtained for the holding of them
both) by which the Firſt is void againſt the Patron, ſo that he
inay
preſent, (as is before ſhewed) but before the Patron doth preſent upon
ſuch Avoidance, the Archbiſhop, (by Force of the Statute of the 25
Licenſe per-
H. 8.) doth grant to the Clerk a Licence perinde valere, to hold the
Firſt with the Second Benefice; this is not a good Licence, although
confirmed according to the Statute, to take away the Patron's Pre-
ſentment, although his Church was only void by Force of a Canon,
and not by the Statute of the 21 H. 8. for by the Canon, the Firſt
Benefice was ſo void, that the Patron might have preſented before a-
ny Deprivation; and after the Patron hath once a Title to preſent,
this Title cannot be taken away from him by a ſubſequent Licenſe,
unleſs ſuch a Licenſe could make a void Church full, Trin. 14. Car.
Baldock's Cafe, v. the King, and upon a Writ of Error affirm'd, Roll's
Abr. 2. 359. Intrat. 13. Car. Rot. 1259. d II H. 4. 38. b. Ci 59. b.
878 6. Hil. 19 Car. 2. Henry Edes, v. Walter Bishop of Oxon.
Vaughan 21.
But if any Perſon having one Benefice with Cure of Souls, being
Hintl Benes of the yearly Value of Eight Pounds or above, (that is, according to
the Valuation in the King's Books of Firſt-Fruits and Tenths, as I think
the general Opinion at this Day is; fo his Humphrey's v. Knight, Croke
Car. 456. Degge's Parſons Counſellor, 29 Sir Tho. Jones, Rep. 19. But
Dyer 237. and Bennet and Tinket's Caſe, 3 Cro. 853. and Noy 38
Contra
tion be ob-
tained.
inde valere.
Valuation of
Gce.
2
Chap. II.
7
The Complete Incumbent.
S.
fice,
Etion.
Contra, that is to be accounted to the real and true Value thereof) qoidance by
accept and take another Benefice with Cure of Souls, and be inſtituted Cellion, a..
and inducted in Poffeffion of the fame, (altho' that the laſt Bencfice be of the Se-
but of Three Pounds Value) immediately after ſuch Poffeffion had cond Benë.
thereof, the Firſt Benefice is not only void in Law, but in Facto alſo,
Stat. 21 H. 8. C. 13. 18 El. Dyer, 347. A. Mich. 4 Car. King v. Priſt.
Hetley 125. Hill. 9 Çar. King v. Prift. 1 Croke, 357. and Jones 337.
So that the Patron thereof muſt preſent to a Living of ſuch Value, fo
void, within fix Months (without expecting Notice from the Ordinary) Notice
to avoid a Lapſe; it being then not only void by Canon Law, but alſo where ne-
ceſſary
by Act of Parliament, in which all
Men are Parties, Trin. 39 El. Hol-
land's Cafe, 4 Co. 75. Jones 404. Hilo 4! El. Digby's Cafe, 4 Co. 79.
Hil
. 9 Car. King v. Priſt
. Jones 337. Mich. 9 and 10 El. Dyer 255.
But he need not (unleſs Notice be duly given) preſent, till ſuch Time
as his Clerk is inducted into another Benefice, 7 El. Dyer 237. Jenk:
Caſe 92. Cent. 6. For tho' by his Inſtitution he hath Curam Anima-
rum, 33 H. 6. 13. and the Church is full to ſeveral Purpoſes; yet the
Words of the Statute are, And be Inſtitued and Jnducted, in If no Ceffion
Polletion of the ſame, oC. So that until he be inducted, there is no until Indü-
Ceſſion by that Statute, but only by the Canon Law; by which Law,
in ſuch Cafe alſo, he may be deprived, Hil. 38. El. Robins v. Gerrard
and Prince, Moor 447. Hil
. 41 El. Digby's Cafe, 4 Co. 79. Trin.
I and 2 Phil. and Mary, Agar v. Biſhop of Peterborough and Denn.
Moor 12.
But although it be faid, That in Caſe of accepting a Second Benefice
contrary to the Statute 21 H. 8. C. 13. the Firſt is void ; yet by fome
'tis faid, That ſhall not be underſtood as to the Poſſeſſion, for that the
Poſſeſſion ſhall notwithſtanding remain with the Incumbent until it be poſterioni
taken from him. By Manwood, Ch. Baron, in Sir Moil Finch's Cafe,
2 Leonard 144. And of this Opinion ſeems Hutton and Vernon; Ju-
ſtices, to be of; but all the Juſtices of England beſides were of a con-
trary Opinion, That the Firſt is ſo void, de Facto & Jure, that the
the Incumbent cannot ſue for Tythes; 9 Car. King v. Archbiſhop of
Canterbury & Priſt. i Croke 357.
But the Patron, if he pleafe, may preſent fo foon as his Clerk is in- Benefice in-
ſtituted into another Benefice incompatible, although he hath no No- compatible:
tice from the Ordinary of any Ceſſion or Deprivation made of the Firſt
Benefice, by Reaſon of his Acceptance of another by Inſtitution, Jenkins's
Caſe, 92. Cent. 6. and although he was only inſtiuted into the Firſt
Benefice, and not inducted, Digby's Caſe, 4 Co. 79. Or elſe, if he Election of
pleaſes, he may fue ſuch Perſon in the Court Chriſtian, to have him
deprived by Sentence, in this, as well as in any other Cafe, where the
Living is void by Canon Law only. But then it is beſt, that he ei-
ther procure the Ordinary to proceed to Deprivation, Ex mero Officio ; How to pro-
or, that he proceed only as a Promoter of the Office of the Judge, ceed to De-
privation.
without ſetting forth his Intereſt as Patron : For if he ſhould ſo do,
and the Clerk Thould plead, that the Plaintiff is no Patron, but that
ſuch an one is, he may have a Prohibition from the King's Court to ſtop
him, if he proceed after ſuch Plea, Pafch. 31 El. Underhill & Savage's
Café, 1 Leonard 316. In regard that he may preſent, tho' no Sentence if Tryal at
be given, and try his Title at Common Law; yet it is ſaid, Pafch. 21 Common
Jac. in Thornton's Cafe, Winch. 63. That whether a Church be void Law.
by Cellion, doth properly belong to the Tryal of the Common Law.
But that is not generally true, but only or at the moſt in this Cafe, viz.
When
continuedi
Patron.
ز
.
6
The Clergy-Man's Law: Or, Chap. II.
and how
Ecclefiafti.
cal Law.
bents of one
Church,
vage's Cafe, I Leol. 316. But a Benefice with Cure, and a Benefice
Cloidance by When a Church being ſuppoſed to be void hy Cellion, the Patron there-
Legion, Egoci
of doth preſent his Clerk, who is inſtituted, and alſo inducted; for af-
ter the Induction, (becauſe it is a Temporal Act) 'tis ſaid, That no-
thing ought to be queſtioned in the Eccleſiaſtical Court, Hil
. 26 & 27
Car. 2. B. R. Monday v. Porton, 2 Levinz 125. fame Cafe, 3 Keb.
325, 423. And yet even in this Caſe, when Induction is had, 'tis faid,
That the Firſt Incumbent may have a Spoliation againſt the new In-
Spoliation, cunibent, when the Firſt retains by Difpenfation, and that thereby the
Plurality ſhall come into Debate in the Spiritual Court ; becauſe by
the Diſpenſation, the old Title remains, Fitz. N. B. 36. 31 H. 6. 26.
See Robin v. Gerrards and Prince, Moor 458. And if Voidanceby Cef-
Tryal by ſion ſhould not be triable by the Eccleſiaſtical Judge, the Ordinary
could not give Notice of an Avoidance thereby (as he is bound to do
in all Cafes out of the Statute;) and ſo Lapſe would never run by the
Patron's Negligence, nor Cures be duly provided for, if the Patron did
not pleaſe to preſent without Notice.
It is not material to the making of a Ceſſion, that the Second Be-
nefice with Cure, be in another Church than that in which the Firſt is :
For where there are two Incumbents of one Church, and each of
Two Incum- them hath the entire Cure of the Pariſh, (whereof there are ſome
Inſtances in this Kingdom) if one of them dying, the other doth ac-
cept his Benefice, his Firſt is void thereby; and if the Firſt was of the
Value of Eight Pounds by the Year, it is void by the Statute, Mich.
36 & 37 El. 3 Croke, 351. and by Walmſley and Beaumont. Pafch.
37 El. C. B. Cooper v. Beauchamp. Parfon's Counſellor, but Anderſozz
doubted. But if it was under that Value, though the ſecond was of
greater Value than 8 l. yet it is only void by Canon. And ſo in
other Cafes, by the Words of the Statute, 21 H. 8. C. 13. Sec Robins
v. Gerrard. Moor 440.
In all Cafes when a former Benefice is faid, by the Acceptance of a
by Canon
Sccond, to be void by Cannon Law only, before any Deprivation, this
is to be underſtood as to the Patron, and for his Advantage only ; fo
that he may, if he pleaſe, preſent, Gc. but not as to Strangers: For
if the Clerk, before Deprivation, doth fue for Tythes of the Firſt
Benefice, it is not any Bar againſt him to fay, That he hath taken a
Second Benefice ; as was ſaid, Trin. 13 Car. B. R. by Juſtice Barkley,
which Juſtice Yelverton, in his Argument of the Caſe of Prift, faid
was ſo adjudged. Roll's Abr. 2. 361.
As Benefices with Cure, of what Value foever, are incompatible, ſo
Dignities are
are Dignities, and alſo a Dignity and Benefice with Cure, By Digni-
incompati- ty, that Promotion is underſtood, to which Juriſdiction is annexed,
7 H. 6. 27. Therefore an Arch-deacon, and a Dean, (becauſe he was
wont to take the Confeſſions of the Chapter, and may viſit them
15 E. 3. 7. are ſaid to be Dignitarians, 5 E. 3. 9. Hil. 22. Ja. in E-
varts and Aſcough's Cafe, Latch 236. Quære : But a Parſon is not a
Name of Dignity, 11 H. 4. 40. nor a Provoft, 17 E. 3. 31. nor a Chap-
lain, 27 H. 6. 3. nor a Goſpeller, Paſch. 41. El. Broughton v. Goufley,
3 Cro. 663. nor a Prebendary, Evans and Aſcough's Cafe, Latch. 236.
See 7 H. 6. 27. 27 H. 6. 5. 25 Ed. 3. 41. 24 Ed. 3. Br. Nome 25.
'Therefore, if any one, having a Benefice with Cure, doth tåke a Dig-
taking a nity, his Cure is void by Cellion, 5 E. 3. 2. Paſch. 9 fac. Davis 68.
Dignity.
King v. Horsfall and Wale
. Paſch. 31 El. in Underhill and sa-
without Cure, being no Dignity, do not void cach other. And there-
fore,
Avoidance
Law only.
What Pene-
fices and
blc.
Ceſſion by
s
2
Chap. II.
9
The Complete Incumbent.
fore, the Taking of a Prebend doth not make a Ceſſion of a Parſonage Weidance to
or Vicarage ; for a Prebend is a Benefice without Cure. 39 E. 3. 44.
Paſch. 30 El. Moor 261. And yet it is ſaid, 'That if one that is a
Prebendary takes a Deanery, his Prebend is void by Cellion. 5 E. 2.
Fitz. Brief 800. Hil. 22 Fac. Evans and Afcough's Cafe. Latch 263.
But Quære, If both Promotions are not then to be in the ſame Church?
For 'tis faid, 'That if a Dean accept of a Prebend in the ſame Church,
his Deanery is void; which Cafe need not be ſo put, if the Rule was
general. iż d 13 El. Walrond v. Pollard. Dyer 293, and 10 El. 233.
And ſo the Taking of a Deanery voids a Provoſtfhip had before in the
fame Church. 5 E. 3. 9. 10 E. 3. 1. And accordingly, when the Bi-
ſhop of Durham had preſented a Clerk to a Prebend of the Church
of St. Andrew, and afterwards had prefented the ſame Perſon to the
Deanery of the fame Church, it was adjudged, that the King ſhould
recover his Preſentation to the Prebend aforeſaid, upon this Account;
that it is not lawful for any one to poſſeſs two Prebends in one and the one may
fame Collegiate Church. Hil. 11 E. 3. B. R. Rot. 21. Roll's Abr. 2. Two Pron
361. by which Caſe it appears, that if the Church, void by Ceſſion, bends.
upon
the Account of the Canon Law, be of the Gift of the Biſhop,
and within his Dioceſe, it may go in Lapfe by the Biſhop's Neglect to
Lapren
collate, tho'no Deprivation be made of the Incumbent or Notice gi-
ven of the Avoidance.
The Words of the Lateran Canon are expreſs againſt having two Canon of
Dignities in the fame Church, which are thus: Addentes, ut in eadem Lateran a-
Ecclefia nullus plures dignitates aut perſonatus habere præjumat, etiam. Dignities.
ſi curam non habeant animarum Extra, Lib. 3. Tit. 5. de Præbendis,
Can. 28. De multa. And this Canon is to be extended alſo to Dig-
nities in ſeveral Churches, as is the general Opinion of all the Ca-
neniſts.
This Incompatibility, as to Dignities and Benefices without Cure, Incompatibi-
is made only by Canon Law, and not by the Statute. 21 H. 8.c. 13; Canon Law.
againſt Pluralities, which extends only to Beneficès with Cures; and
therefore declares, That no Deanry, Archdeaconry, Chancellozhip, 21H.c. 13.
9. 26.
Treafurerthip, Chanterſhip, 02 Prebend in any Cathedjal 02 Collegiate
Church, nor Parlonage that hath a Wičar indued, nor any Benefice Vid. Mour.
perpetually appropriate, call be taken ol comprehended under the 540.
Name of Benefice baving Cure of Soul, in any article of that Sta.
tute, (which they would have been, as it is ſaid, if no ſuch Proviſo
had been added.) From which it is, I ſuppoſe, that Coké faith, That
it appeareth, Archdeaconries, Prebends, Appropriations, &c. are Bene-
fices with Cure of Souls. 3 Inſt
. c. 71. But Quere; For it is held by Q. What Be-
ſome, notwithſtanding what is ſaid by Coke, that a Deanery, Archdea- nefices have
conry, Prebend, &c. are not Benefices with Cure of Souls, nor had
they been comprehended under the Name of Benefices with Cure of
Souls within the Statute, altho' the Proviſo had been omitted ; for
there is no ſuch Exception out of the Statute, 13 El. c. 12. concern-
ing reading the Articles; and yet, if a Dean, Archdeacon or Prebend,
read not the Articles within the Time limited by 13 El. his Promotion
is not void by that Statute: The Reaſon is, becauſe 'tis not a Bene-
fice with Cure of Souls; and a Lay-man might have been preſented
to a Prebend. Cowley's Laws concerning Recuſants 233. And fo Ho-
bart faith, 'That a Benefice appropriated, doth not by the Appropriati-
on ceaſe to be a Benefice with Cure at the Common Law, altho' it
be not taken to be ſo within the Statute. Colt and Glover's Caſc. Ho-
D
bart
Curc of
Souls.
IO
The Clergy-Man's Law: Or, Chap. II.
.
Cell.on, E.
Subſidium
Re&toris.
Cure.
Moidance by bart 158. And although it be faid, if there be a Rectory that is pre-
fentable, and a Vicar endowed out of the fame that is preſentable,
that the Vicar, and not the Parſon, hath the Cure of Souls. 5 E. 2.
Fitz. Quare Impedit 165; yet I conceive, that though the Vicar be in
Subſidiuin Rectoris; and to perform the Duties, yet that the Par-
ſon hath alſo the Cure, at leaſt habitually; for by his Inſtitution, the
Cure is by the Biſhop committed to him. 2 Croke 518. and therefore
ſuch a Rectory, by taking a Benefice after incompatible without Dif-
penſation, will be void at the Canon Law, though not by the Statute,
21 H. 8. c. 13. as is there expreſſed. And it hath been lately adjudg-
ed, that ſuch Rectories are Benefices without Cure, in the Caſe of
Clarke and Heath. Mich. 21 Car. 2. B. R. where it was faid, That
there were ſeveral Churches in England which have Vicars endowed
Concurrent with Cure, and yet the Parſon had a concurrent Cure with them, and
both of them took the Oath of Canonical Obedience to the Ordinary.
Evidence of i Siderfin 426. It was alſo agreed in that Cafe, by all the Court,
That Inſtitution and Induction was an undeniable Evidence of Cure of
Souls. 2 Keble 556.
If a Church be void by Ceſſion, and the laſt Incumbent keeps Póſ-
Avoidance felon, and takes up thé Tythes, as if entitled to them, 'till ſuch
.
Time as the Church is lapſed to the King; and then comes a general
Pardón, in which are pardoned and remitted all Titles and Actions of
Quare Impedit, which the King hath, or might have, by reaſon of a
ny Lapſe incurred for or concerning any Benefice, whereof any Incum-
bent was at the making thereof in actual Poſſeſſion, by the Preſenta-
· tion of any Patron or Collation of any Ordinary, yet fuch_Poſſeſſor
'is not thereby re-entitled to a Benefice fo void by Ceſſion: For if ſo,
the Words ſhould (as they are not) be ſufficient to make a Plenarty of
a Church abſolutely void, and to make void a ſecond Church really
full; or elſe, not only make the Firſt full, but alſo be a ſufficient
Diſpenſation for a Plurality to hold them both; but ſuch Words on-
ly ſettle him that is poſſeſſed upon a Preſentment made by the Pa-
Special Par- tron, or Collation made by an Ordinary, that had uſurped upon the
King's Title, that was come to him by Lapſe. Neither can any
Myoidance. fpecial Pardon, after ſuch abſolute Avoidance of a Church, with
Words that he may retain it, or with any other the like Words, make
him again Incumbent thereof. Trin. 4 Car. King v. Prift. 1 Cro.
357. and Jones 339. But otherwiſe it is, if the Church was not
abfolutely void, but only voidable by Deprivation, or otherwiſe.
Hil. 9 Car. King v. Prift. Jones 339.;
Cure of
Souls.
General
Pardon afrer
abſolute
.
CH A P.
1
:
Chap. III.
II
The Complete Incumbent.
Toluralities,
CHAP: III.
Of Pluralities, Qualifications, Diſpenſations
and
Commendamś.
trae
HIŚ Rule; That the Accepting of a ſecond Benefice that is in-
compatible, doth make a Ceſſion, or abſolute Avoidance of the to the Rule
former, hath its Exceptions. As Firſt : If a Perfon, having a Benefice of accepting
incompatible, be admitted, inſtituted, and inducted into a Sccond Be- . Second
nefice incompatible alſo, but doth not ſubſcribe the Articles of compatible
.
Religion according to the Statute i3 El. ci i2. his Firſt Benefice
is not void. 23 & 24 El. Dyer 377. becauſe; by reaſon of that Neg-
lect, he was never Incumbent of the Second ; (yet in declaring upon a
Voidance, by Acceptance of a Second Living; it need not be alledged,
that he ſubſcribed the Articles, &c. 3 Keb. 152. 1 Anderſ. 62.). The
like Law ſeems to be, if a Man, having obtained a Second Benefice
incompatible with his former, by a Simoniacal Contract ; for in fuch if by Simo-
Caſe alſo, his Preſentation or Collation, Inſtitution and Induction, are niacal Con-
utterly void, and of none Effect in Law. Stat. 31. El.c. 6. However,
the Canon Law (without a Pardon prevent will reach him in this
Cafe of Simony; for by that he may be deprived. But if he that had
one Benefice doth accept of another incompatible; and at his Admit-
tance to the Second did ſubſcribe the Articles, but did not within two
Months after his Induction read them, his Second Benefice is ipfo facto
immediately void. Stat. 13: c. El. 11. but when he cannot revert to his
former Benefice, becauſe having, at his Admiſſion to the Second; ſub of fub-
fcribed the Articles, his Admiſſion, Inſtitution and Induction to the ſcribing the
Second were good for two Months, and ſo made a Ceſſion as to the Articles, &c.
Firſt: For the Statute is not, That all Admiſſions, Inſtitutions and Clauſe of
Inductions, to Benefices, where any Perſon is deprived by Vertue of Statute, 13
this Act, ſhall be void, as if they never were: For then, by not read: Eliz 13.
ing the Articles, only his Second Benefice had been void, and his Title
to the First had been revived: But the Clauſe is, That all Admiſſi-
ons, Inſtitutions and Inductions, made contrary to the Proviſion of the
Act, ſhall be void, as if they never were; but where the Articles are
ſubſcribed in the Preſence of the Ordinary, the Admiſſion, Inſtitution
and Induction, are not contrary to the Proviſion of the Act. Hil. 22
23 Car. 2. Shute v. Higden. Vaughan 131. which ſeems to be war-
ránted alſo by the Opinion of Hobart, in the Caſe of Winchcomb v. Bi-
ſhop of Wincheſter and Pulleſton. Hob. 1676 See the Caſe of the Queen
v. Biſhop of Lincoln and Cok. 1 Anderſon, Caſe 136.
But Note, That though a Clerk at his Admiſſion to a Second Be-
nefice did ſubſcribe the Articles; yet if the Subſcription was only made Subferipti-
in the Prefence of the Biſhop's Chaplain or Secretary (which I have whom.
ſometimes ſeen,) and not in the Preſence of the Ordinary himſelf, the
Admiſſion, &c. is void, and the former Benefice remains full; for the
Statute is expreſs, That the Subfcription ſhall be in the Preſence of
the Ordinary
A Second Exception from the aforeſaid Rule is, if he that hath
Difpenfati-
one Benefice inconipatible, before he takes another, being duly quali- on to hold
fied, doth obtain a fufficient Diſpenſation, to hold at one and the fame more Bene-
Time
3
12
The Clergy-Man's Law: Or, Chap. III.
c.
:
ز
Nota.
Stat. 21 H.
1. c. 12
g. 9
Pluralities. Time more than one of ſuch Benefices as are incompatible : For by
Diſpenſation, a Man, at this Day, with us (though he be not qualiti-
ed by Degree in the Univerſity, Retainer or Birth) may hold as ma-
ny
Benefices without Cure, of what Value foever, as he can get; and
likewiſe as many with Cure as he can get, all of them, or all but
the laſt, being under the Value of 81. per Ann. (That is, if the Perſon
to be diſpenſed withal be not uncapable thereof; for 'tis ſaid, That a
Diſpenfation to an Alien to take a Benefice, that knows not our Lan-
Vide 11 H.4: guage, is void. Jenkin's Cafe, 66. Cent. 7. Hob. 148. Stat. 25 E. 3.
Stat
. 25 Ed. of Provifoes: For before the making of the Statute againſt Pluralities,
of Proviſors. Diſpenſations were granted to hold Dignities, yea, Benefices with
Cure of any Value, and to any Number, as appears by the ſaid
Statute; by which it is enacted for ſuch Pluraliſts: That they may
retain four of their Benefices with Cure, that were really entitled
to them at the Time of the making thereof, that Statute notwith.
ſtanding ; and thoſe that had more than four with Cure, thould ré-
ügn the reſt, 02 the Patron might preſent to them; any Licenſe,
Union, of other Dilpenfation, to the contrary befoże obtained not.
withtanding. By which 'tis clear, that by Licence, Union, or other
Diſpenſation, Men held many Benefices, yea, with Cure, before that
Statute; and by that Statute, the Law is only altered as to Benefi-
ces with Cure, of or above the yearly Value of 8 l. and in theſe Words:
That if any perſon of Perfons, having one Benefice with Cure
of Soul, being of the yearly Walue of eight Pounds, 02 above, accept
Penalty of
and take another with Cure of Soul, and be Inſtituted and Induđed
Pluralities. in Poteßion of the ſame, that then, and immediately after ſuch Poſt
ſeſion had thereof, the Firft Benefice thall be adjudged in the Law
Cro. El. 601. to be void. (Which is the ſame that the Canon. Law ſpeaks, but not ſo
general.). . 10. and that it tall be lawful to every Patron having
1 Leon 316. the advomion thereof, to preſent another, and the Deſentee to bave
the Benefit of the fame in the like manner, as tho' the Incumbent
had dyed of religned any Licence, Union, or other Diſpenſation to the
contrary, tc.. And every ſuch Licence, Union or Diſpenſation had con-
trary to the gă to be utterly void, tc. And after it is enacted, Ø. 11. Chat
every Licence, Union or Diſpenſation hereafter to be obtained, con-
trary to this gå, of what Dame oj Names, Muality Oj Dualities,
ſoever they be, thall be utterly void, and of none Effex. and that if any
Perſon or Perſons, contrary to this preſent aš, procure and obtain at
the Court of Rome, or elſewhere, any Licence or Licences, Unioni,
Coleration oj Diſpenſation, to receive and take any mo benefices
with Cure than is above limited ; that then every ſuch Perſon 02
Perſons ſuing for himſelf, or receiving op taking ſuch Benefice by
Force of ſuch Licence or Licences, Union, Toleration or Diſpenſati.
Penalty.
on, fall for every ſuch Defauit, incur the Danger, Pain and Pes
nalty of Twenty Pounds Sterling ; and alſo, lore the whole Pro-
fits of every ſuch Benefice od Benefices, as he receiveth oj takety by
Force of any ſuch Licence 02 Licences, Union, Tolerationi, 02 Dil
penſation : The one half of which Forfeiture to the king our Sove-
reign Lold, and the other half thereof to himn that will ſue fou tre
Came by Driginal Writ, Bill, Plaint of Debt, 02 Information, itt
any of the King's Courts ; in which axion and Suit, no Wager of
Law, Eloin, 02 Protexion foz the Defendant ſhall be admitted, oz
allowed. It may be here obſerved on the before recited Se&ions of the ſaid
4
Stat.
853.
:
Chap. III.
13
The Complete Incumbent.
Codex 945.
1
4. Leon. 237.
Stat. 21 H. 8. That the Words Perſon or Perſons, &c. in Sett. 9. are pluralities,
to be extended to all Eccleſiaſtical Perſons whatſoever having Benefices
with Cure of Souls, and confequently that not only Prebendaries and 3 Inft
. c. 7.
Archdeacons, but even Biſhops themſelves are included in it. For as Me 542.
a Biſhop has Cure of all the Souls of his Dioceſe, ſo his Dioceſe ſeems Vid. Hob.157.
a Benefice with Cure within this Law; notwithſtanding what is ſaid 3 Keb. 152
hereafter, Chap. 18. or has been lately publiſhed by a Right Reverend
Prelate, viz. That Biſhops are not included within this Law, other-
wiſe than as Commendatories, i. e. having two Benefices with Cure,
either by Reteiner or De novo ; though he confeſſes this Statute to be a
general Law, and ought to be taken Notice of without pleading. And A general
to it has been divers Times reſolved. Vide 4 Co. 76. 2 Roll. Abr. Law.
766.
And Note if one take a ſecond Benefice after Inſtitution only, to a 4 Co. 225.
former, ſuch former Benefice is void, as if it had been after Induc-
tion alſo. And the 8 l. yearly Value mentioned in this Section muſt
be according to the Valuation in the King's Books, and ſo it was re-
ſolved by the Court of C. B. in Drake and Hill's Cafe. Paſch. 10. Vide T. Fones.
Car. I. and Humfrey and Knight's Cafe. Cro. Car. 455. And the Law 18, 19.
is now fettled in that Point.
But as to the Second Benefice, it is not material of what Value it is,
or whether it is rated in the King's Books or no, for the Avoidance
will take place in that Cafe, as well when 'tis under, as when above
8).
And it was reſolved, 36 Eliz. in B. R. That if there be two Parſons
of one Church, and each of them has the entire Cure of the Pariſh, Crs. El
.
1.351.
(which may well be) and each of the Benefices be of 81. Value
per
Annum, if one Dies, and the other Succeeds, this is a Plurality within
the Statute.
Alſo, Though the Words in this Section are inſtituted and inducted, 4. Cc. 79.
which being copulative, ſeem to imply, That the Voidance thereupon Mo: 443,
is not to take place till after Induction, as well as Inſtitution, yet it has
been often adjudged, That if one is inſtituted, and then obtains a Dif-
penſation, and after that is inducted, the Diſpenſation came too late
not only becauſe by Inſtitution, the Church is full of the Incumbent,
and one cannot have a Diſpenſation to take or receive (as the Words
of the Act are) what he had before; but alſo, becauſe by the Inſtituti-
on, he hinders others from being preſented, and by obtaining Inſtitu-
tion to many Churches with Sequeſtration of the Profits of them, the
Intent of this Statute might be eluded.
And it is to be noted, That by a Conſtitution of the Council of
Lateran under Pope Innocent III. (which Council is ſaid to have been Hard. 101.
received here in England, and to be as forcible as an Act of Parliament)
and by the Canons of Archbiſhop Peckham, That of what Value fo-
ever the Firſt Benefice was, the Incumbent by taking of a Second, was
(by the Laws of the Church in thoſe Times) ipfo jure deprived of the
Firſt, and the Benefice void, ſo that the Patron might preſent thereto.
without any Sentence of Deprivation, and ſo far the common Law a-
grees with that of the Church.
But tho' by the Conſtitution of Lateran, if the Patron did not pre- 2 Roll. Abr.
ſent to ſuch a void Benefice within fix Months, Lapſe was to incur yet odbolt
. zz.
by the common Law, (tho'thereby the Patron may preſent if he will) yet Moox 542.
no Lapſe ſhall incur to him if he do not preſent, unleſs the Biſhop voids: W.Fones 336.
the Church by a Declaratory Sentence, and gives Notice of the fame
E
to
448.
Latch. 248.
:
14
The Clergy-Man's Law: Or, Chap. III.
Bc.
Dyer 327. a
Heb. 158.
4. Co. 79.
pluralities, to the Patron; and then the Patron muſt at his Peril preſent within fix
Months after ſuch Notice'; ſuch Benefices therefore as are under 81.
per Ann. in the King's Books (being not within this Statute) do remain
upon the old Foot of the Common and Canon Law, and are only
voidable, not void by Acceptance of a Second Benefice.
But now by tliis Statute; if the Firſt Benefice be of 81. yearly Value
or above, the fame will by Acceptance of a fécond be abſolutely void
to all Intents and Purpoſes, and the Patron in ſuch Café muſt at his per
ril preſent within the lix Moriths; to avoid a Lapſe, without expecting
Notice from the Ordinary.
In 15 & 16 Eliz. the Cafe' was, one being poſſeſſed of two B2-
Trialty
quid. nefices by Diſpenſation according to this Statute, did afterwards by a
Trialty (i. e. a Diſpenſation to hold three Benefices) obtain a third,
and enjoyed all three. But Dger" fays divers Fuſtices and Serjéants
were of Opinion, That the firft of the three was void, and the Profits
of the third were forfeited by force of the latter Part of SeEF. 10. 621-
pra, and that only the Second Benefice rentrained to him. Vide poft.
40.
Noy 1.19.
And in' the Caſe of the King againſt the Biſhop of Wincheſter,
where one had two Bencfices with Cure by Difpenfation, and then took
a third with Cure (Quære, if by Difpenfatioti) 'tis ſaid to have been ad-
judged, That both the former Benefices ſhould be void. And my Lord
Hobart in the Cafe of Colt and Glover is exprefs. If a Man také à
Trialty which is not allowed him, he cannot by that take two Bene-
fices, becauſe ſuch Difpenfatioh iś void. And it was adjudged in Dig-
by's Cafe, That a Benefice is taken, received, and had by Inſtitution
only, and therefore a Qualification or Diſpenſation following, comes
too late;
And Note, Tho' formerly the Uſage was to Grant Diſpenſations
for any certain Number of Benefices; without ſpecifying what in parti-
cular, and ſometimes with Power to exchange, and take others
, only
keeping Poffeffion within the Number diſpenſed with. Yet the later
and ſafer way is to ſpecify the Benefices, and to grant the Diſpenſation
expreſly to prevent the Avoidance of a Bencfice in Porfefſion by taking
of a ſecond; according to the Terror of J. 9. (upra, tho' the i 3th and
following Sections ſeem to admit of a larger Interpretation, viz.
$. 13. Provided that all Spiritual men now being, or which hereaf-
ter mall be of the King's Council, may Purchaſe, Licence, o2 DIT-
penſation, and take; receive, and keep three Partonages 02 Beliefis
ces with Cure of Soul, and that all other being the King's chap-
platis, and not Swoln öf his Council, the Chaplains of the Düeein,
Prince or Princeſs; öz any of the King's Chitdien, Bréthun, Si
ffers, Uircies, ol Aunts, máy femblably purchale Licence oį Dit:
penſatioit, and take, receive, and keep two Parſonages and benefi-
ces with Cute of Soul. And by the foffowing Setions, 'tis enađed how
many Chaplains with Dilpenfations, an Archbiſhop, Duke, Parquis,
Earl, Wiſcount, Biſhop, 02 Baron may 'retain, of which hereafter.
And Note, In 28 Eliz, in the Caſe of the Queen and Saveacre,
'twas held per Cur', That altho' a Chaplain be removed from the
Domeſtical Service of the Family, he ſtill remains a Chaplain at large,
and fo is a Chaplain within this Statutė.
13 El. c. 20.
Note alſo by 13 Eliz. c. 20. 8. 2. "Tis Provided, that every Parfon
by the Laws of this Realni allowed to have two Benefices, máy de-
miſo the one of them, upon which he ſhall not then be moſt ordinari-
12 H. 1. 6.13.
Godb. 42.
4
ly
Chap. III. The Complete Incumbent.
15
Eric.
ly Reſident, to his Curate only, that ſhall there ſerve the Cure, for luralities:
him; but ſuch Leaſe ſhall endure no longer than fuch Curate's Re-
fidence without Abfence above Forty Days in any one. Year. Vide
Poſt. C. 43.
Now from the foregoing Diſcourſe it ſeems plain, That (notwith- Courſe as to
ftanding what is before enacted by this Statute) the Courſe of the Ca- Benefices
non or Common Law, before this Statute uſed, is to be obſerved for Cure, Foco
all Benefices without Cure ; and with Cure, where the former Bene-
fice is under the yearly Value of 8 l. and that this Aů doth only for-
bid him that hath a Benefice of ſuch a Value, from taking and hold-
ing a Second therewith, by Vertue of any Diſpenſation made, accord-
ing as formerly they were, viz. to any Perfons, and for any. Number
of Benefices, without refpect to the new Qualifications ſet up by this
Ad, and makes void only ſuch Difpenfations as are contrary thereun-
to: Which Qualifications come next to be conſidered.
But this Statute extending, as hath been ſaid, only to Benefices with
Cure, and where the Perſon accepting a Second hath a Benefice of
81. per Annum Value, and that other Cafes of Pluralities are govern-
ed by the Canon Law ; it will not
be amiſs to fhew what the Canon Canon Law.
Law in this Matter is. The Firft Canon I ſhall mention is that of the
Council, which having no Addition, which of the Lateran Councils Which
muſt, as we are told, be taken, that under Alexander III. Anno Dom. Council of
1180, which is in theſe Words: Quia nonnulli modum avaritiæ non po- be taken.
nentes Dignitates diverſas Ecclefiafticas, & plures Ecclefias Parochia-
les contra Sacrorum Canonum inſtituta nituntur accipere, ut cum ununi
Officium vix implere ſufficient fibi vindicent ſtipendia plurimorum, ne
id de cætero fiat diftri&tius inhibemus.. Cum igitur Ecclefia vel Eccle-
fiafticum Miniſterium committi debuerit, talis ad hoc perſona queratur
que refidere in loco, curam ejus per ſeipſum valeat exércere; qucd få
aliter a&tum fuerit, eo qui receperit quod contra facros Canones diccepit,
amittat, & qui dederit largiendi poteftatem pridetur. Extra Lib. 3.
Tit.
4 de clericis non Reſidentibus, Can. 43. Another Canon there
is made in the Council of Lateran, under Innocent III. Anno Doin. Canon.
1215. beginning, De multa, &e. which are in theſe Words ; Quicun-
que receperit aliquod Beneficiun curam habens animarum adnexam, fi
prius tale Beneficium habebat, co fit ipfo jure privatus, fi forte il-
Led retinere contenderit, etiam alio Spolietur. Is quoque, ad quem prio-
ris Spectat donatio, illud poſt receptionem alterius libere conferat cui
terito viderit conferendum, o fi ultra ſex menſes conferre diſtruerit,
1701 fol. ad alios ſecundum Lateran' Concilii Statutuin ejus collatio
devolvatur, peruix etiam tantum de fuis cogatur proventibus in utili-
tatem Ecclefiæ cajas eft illud Beneficiun adfignare; quantum a temiz-
pore vacationis ipfius conftiterit effe perceptum. Hoc idenn es in perfo-
malibus de decernimus obfervandum, addentes ut in éadeni Ecclefia
nullus plures Dignitates aut Perfonatus habere prefumat, etiam fi cu-
ram non halieant agrimarum. Cárca fublimes tamen in literataſ Peg-
Jonas que majoribus Beneficiis funt honoranda, cum ratio poftulaverit
per ſedem Apoſtol poterit difpenfari. Extra Lib. 3. Tit. 5. de Pre-
bendis, Can. 28.
The Firſt Canon not affiliating the Puniſhment of Deprivation ipfo Both Ćanons
facto, did not produce any great Efect, (as Abbot obferves upon it,) fruitleſs:
therefore comes this Second Canon with the Penalty of Deprivation ip-
ſo fafto ; yet the diſpenſing Power reſerved to the Pope in the Clauſe,
makes this Second as fruitleſs as the former. Therefore, chiefly to
1
1
.
.
Another
Femi
-
16 The Clergy-Man's Law: Or, Chap. III.
1
Decretal.
How theſe
us.
non.
How Plura-
lities ſtood
H. 8.
32 Perſons Clauſe in thitha and form of this &. The King, by a former
Pluralites; redreſs the Exceſs and Grievance of holding Church Preferments by
Diſpenſations, Pope John XXII. in his Decretal, beginning Execrabi-
lis, after a long Recital of the miſchievous Conſequences of Plurali-
ties, decrees, That every one who holds a Bencfice by Vertue of any
Diſpenſation, ſhould, within a Month after Notice of this Decree,
Pope John's chuſe which of the Preferments they liked beſt to keep, and reſign the
others; elfe all their Benefices to be void. Extravag. Tit. 3. de Pre :
bendis e Dignitatibus.
Many more Canons and Decretals might be mentioned concerning
Canons were this Matter; but theſe being the chief made by foreign Authority, and
recciya with received here to be Law, and to direct the Practice and Proceeding in
this Matter, I will mention no more, but only ſhew how they were
allowed and received here with us. And to that Purpoſe, I find a Ca-
Othobon's Ca- non made here by Othobon the Pope's Legate, beginning Chriſtiana,
&c. inforcing the Performance of that made in the Council of Late-
Alter'd, Epc.
1 an, under Pope Alexander; and this was 'again explained and altered
by Archbiſhop Peckham, Anno Dom. 1279. Lib. 3. Tit. de Prebendis
Audiftis. Linw. Old Impreſſion, 75.
By thefe Canons it may appear, how the Law ſtood concerning Plu-
ralities before the Statute 21 H. 8. and how it ſtands at this Day in
before, 21
Caſes not within that Statute: Firſt, The Second Living accepted was
made void by Deprivation, by the Canon in the Lateran Council un-
der Pope Alexander. Secondly, That the Firſt Living was to be ip-
ſo fatto void by accepting of a Second; and in caſe of Endeavour to
keep both, then both to be void. Thirdly, Although there were a
The Canon Diſpenſation, yet if the Firſt was actually reſigned within a Month of
generally receiving a Second, both to be void. But the Canon for making the
Firſt Benefice void, was the Laws generally owned and practiſed here,
as may appear not only from Linwood, but more fully from the
Books of the Common Law; as, 5 E. 3. 9. 25 E. 3. 49. II H. 4.
4
Coke 75, 79. 6 Coke 29. and ſeveral other Books; yet in the
10 E. 3. 1. there we find a Title made under the Decretal of Pope
John, before-mentioned, as I underſtand that Caſe; becauſe 'tis there
faid, That by the Conſtitution of Plurality they ſhould be depri-
ved, who kept their Benefices beyond a Month after that Conſtitution,
which is according to the Words of that Decretal: Linwood alfo, in
the Place before recited, v. Nec ultimo, ſeems to allow that Decre-
tal to be in Force here.
All theſe Canons, as they were allowed here, ſo confequently were
they continued in Force by the Stat. 25 H. c. 19. whereby 'tis provided,
That all ſuch Canons, Conftitutions, Didinances, and synodals
P20vincial being already made, which be not contrariant nor repug-
nant to the Laws, Statutes and Cuſtoms of this Realm, nod to the
Damage od Hurt of the King's Prerogative, fhall now ftill be uſed
and erecuted as they were before the making of this ad, until ſuch
Time as they be viewed, ſearched, oj otherwiſe ojdered and deter-
mined by Thirty two Perfonis, on the moje Part of them, accold-
ing to the A&.
the Canons. to examine and correct all Canons then extant, and to frame a Body
of Ecclefiaftical Laws out of them at their Diſcretion ; And that ſuch
Eccleſiaſtical Laws ſhould be obſerved and obeyed, ſo as the King's Ar-
ſent under the great Seal were firſt had to the fame. And the like
27 H. S.C.15: Authority was given to that King by two other Statutes made the 27th,
ISH. 3.c.16.
and
owned:
60.
25 H. 8. c.
19. . 7.
If there Ca-
nons were
continued
in Force.
Ibid. 6.2.
Power for
to corre&t
3
Chap. III. The Complete Incumbent.
17
'
Egrc.
ܝܪܚܚܫܕ ܙܕܝܙܚܐܫܕܚܚܫܚܚܫܝܫ.܂
Reformatio
111111.
3, 4 E. 6.
C. 11.
ſaid Book
1640
1
1
and in the 35th of his Reign. Purſuant to which faid Acts of Parlia- Pluralities.
ment, and the Powers thereby given K. H. 8. 32. Perfons halfClergy
and half Laity, were nominated and appointed for Reformation of the
Canon Law, who accordingly drew up and reduced into Order ſuch a
Body of Laws under the, Title of Reformatio Legum Ecclefiaftica- Legume.co
But that King dying before his Royal Aſſent thereto, under the Cleliaftica-
Great Scal, as was provided by the faid Statutes, rendred that Body run.
of Laws uſeleſs and ineffectual.
After which in the Third of King Edward VI. the Buſineſs was a-
gain revived, and an Act of Parliament paſſed, giving the like Power
to that King, as had been given to H. 8. and E. 6. by Letters Pa- See theſe
tents teſted at Weſtminſter Nov. 11. Anno Reg. 5. impowered 8 Per- tents prefix-
fons, i. e. the Archbiſhop of Canterbury, the Biſhop of Ely, and two ed to the
other Clergy-men, with four Laymen to begin the Work. And the
printed ac
Reaſon of appointing at that Time only eight is there expreſſed, viz. Lond. Anno
Quia Conſiliariis noctris à ſecretis conſentaneum magis videtur hujus 1811,&
rei initium, introitum, primam formam & lineaturam numero Octavo,
qui triginta erit portio, committere ; nempe quaſi Preparationem quanz-
dam grandiori numero futuram.
But this Deſign of King Edward VI. was alſo defeated by his Death,
and thereupon the Matter reſted till the Year 1559, i. e. i Eliz. When
a Bill was brought into the Houſe of Commons for impowering 32
Perfons to Reviſe the Eccleſiaſtical Laws. But ſays Biſhop Burnet,
Hift. of Re.
as that Bill was then let fall, fo to the great Prejudice of the Church Eliz.
it has ſlept ever ſince.
Yet by another Right Reverend Prelate we are informed, That in Codex 991.
1562, i. e. 4 Eliz. it was propoſed in Convocation to move her Ma-
jeſty, That certain learned Men, Biſhops, and others might be appoint- Quare the
ed to ſet down Ecclefiaftical Rules and Orders in all Ecclefiaftical Mat- Meaning.
ters for the good Government of the Church of England, as should by
nem be thought moſt Meet, and the ſame in this preſent Sedion, what-
ſoever they fall order or ſet down within one Year next, to be effettual,
and for Law confirmed by Act of Parliament, at or in this seſ
fion.
And that afterwards by the Endeavours of Archbiſhop Parker, it Dew's Journa
was again fet on Foot in the Parliament of 13 Eliz. and by a leading nal 167.
Member recommended to the Houſe of Commons; but after that we
hear no more of it. But preparatory to the Gaining a Parliamentary
Eſtabliſhment, Care was taken to have the whole Work publiſhed by Lond. 1571.
John Fox, who has ſhown this to be the main Deſign in the Concluſi-
on of this Preface thereto, viz. Optandum, quod per prenaturam
Morten Regis illius (i. e. Ed. 6.) negatum eſt Ecclefia felicitati, per
feliciora Tempora Sereniſime Regina noſtre Elizabetha ſuppleatur,
accedente publica hujus nunc authoritate, Parliamenti Authori-
From what is before ſaid it appears, That the Collections in that Determined
Book cannot be eſteemed any part of the Canon Law, and confequent- Death of the
ly the former Canons remained in Force no Ways altered thereby : Kings.
and that thoſe former Canons were not contrary to the Laws and
Cuſtoms of the Realm, according to the Proviſo in the 25 H. 8. c. 19.
is evident, for that they were then the only Law in the Cafe, except penfations.
only as altered by Statute 28 H. 8. C. 16. concerning Diſpenſations.
There is alſo a Canon made in the Convocation for the Province of
Canterbury, Anno Dom. 1603, in the Words following: No Licence Difpenfati-
F
tate.
Stat. of Dir.
Canon Cante
1603. for
or ons.
18
The Clergy-Man's Law: Or, Chap. III.
C.
Reſidence
Ifthis Canon
may be cal-
Canons made
ſince that
Time.
Pluralities or Diſpenſation, for the keeping of more Benefices with Cure than one;
Shall be granted to any, but ſuch only as ſhall be thongłt verg eel! cor-
thy for his Learning, and very cell able and suficient to diſcharge
his Duty ; that is, who Jall have taken the Degree of Maſter of Arts;
at the leaſt, in one of the Univerſities of this Realm, and be a publick
and ſufficient Preacher licenſed; provided always, that he be, by good
and Sufficient Caution, bound to make his perſonal Reſidence in each of
his jaid Benefices for ſome reaſonable Time in every Year; and that
the ſaid Benefices be no more than Thirty Miles diftant aſunder : And
laftly, That he have under him, in the Benefice where he doth not re-
Preacher
: : fide; a Preacher lawfully allowed, that is able ſufficiently to teach and
inſtru£t the People. Can. 41.
This Canon, although it have the King's Royal Aſſent, which was
rea part of a neceſſary to give it Power and Force as a Canon, and alſo though it
the Ecclefi: concern only Eccleſiaſtical Perſons, yet I ſuppoſe, properly ſpeaking, it
aftical Lawi cannot be called Part of the Eccleſiaſtical Law; for ſtrictly and proper-
ly ſpeaking, that only can be ſaid to be the Eccleſiaſtical Law which
was uſed and approved here before the Statute 25. H. 8. c. 19. and
continued and allowed to be executed by that Statute; but all Ca-
nons ſince that Time, made with the King's Royal Aſſent, have their
Force as Canons to bind Eccleſiaſtical Perſons in Spiritual Matters,
yet, in Propriety of Speech, muſt be diſtinguiſhed from the Ecclcſia-
ſtical Law, which binds all Perſons, and is equally Part of the Law and
Conſtitution of the Nation, and to be taken Notice of as ſuch as much
as any other Part of the Common Law. Caudry's Cafe. 5 Co 9. 32.
Vaughan Ede's Caſe, and Hill's Cafe.
Note alfo, (as to Canons, Ga) In an Act made 13. Car. 2. entitled,
An Act for explaining a Clauſe contained in an Act 17 Car. I. con-
cerning Commiſſioners for Cauſes Ecclefiaftical, is inſerted the following
Clauſe, viz.
Provided always, That the gå or any Ching therein contained,
ſhall not ertend oy be contrived to ertend to give unto any, Archbi-
fhop, Biſhop, o2 any other Ecclefiaftical Judge, Dfficer, or other
Perſon od Perſons aforeſaid, any Power od Authority to Ererciſe,
Erecute, India, O Determine any Ecclefiaftical Jurisdi&ion, Cen:
ſure ou Coertion, which they inight not by Law have done before the
Year of our Lod 1639. No to abfidge oj diminiſh, the king's Majeſty's
Supremacy in Ecclefiaftical Patters and Affairs, noy to confirm the
Canons made in the year 1640. 1102 any of them, 1102 any other
Eccleliaftical Laws of Canons not fozmerly confirmed, allowed,en-
ađed by Parliament, oj by the eſtabliſh'd Laws of the Lands, as they
ftood in the year of our Lojd 16;9.
The Canons here mentioned to be made in the Year 1640, were
thoſe confirmed by King Charles I. Fune the 30th, in the 16th Year of
his Reign, and may be ſeen at large in the printed Collection of Arti-
cles, Injunctions, &c. Several of them, ſays, à Right Reverend Prelate,
are of ſuch a Nature as could give no reaſonable Offence to the Tem-
poral Legiſlature, relating only to the Diſcipline of the Church and
Clergy, (Quære if ſuch Diſcipline may not give a reaſonable Offence)
and the Regulation of the Eccleſiaſtical Courts; But he confef-
fes. there are others which concern the Regal Power, and the Ci-
vil Eſtabliſhment of the Church of England, the State, &c. Euge.
boni viri
13 Car. 2. C.
.
Sea. 5.
1
Codex 995
1
And
i.
Chap. III.
19
The Complete Incumbent.
(C
And therefore upon due Confideration had of their whole Body, both Difpuedia
Houſes of Parliament became no Doubt very reafonably ottended ons, ei.
with thoſe Canons, when they ſo remarkably cenſured them in the Riabavor,
following Words, viz. “ 'That they contain'in them many Matters Vol. 4. 11..
contrary to the King's Prerogative, to the Fundamental Laws and
“ Liberties of the Realm, to the Rights of Parliaments, to the Pro-
perty and Liberty of the Subjects, and were Matters tending to Sedi-
“ tion, and of dangerous Conſequence.
And we cannot doubt but it was for the fame Reaſon, that the firſt
Parliament after King Charles Second's Reftoration took Care to pre-
vent the Miſchiefs which thoſe Canons might Occaſion; by declaring
in the Clauſe ſripra; That the ſaid Act ſhould not extend to confirm
thoſe Canons of 1640. nor any of them ; ſo that that Parliament had
not fo reſtrictive a Confideration as our Biſhop would ſuppoſe.
But what he obſerves may be true, viz. That in the Convocation Codex 996.
that then fate, there was Debate had de & fuper Reviſione Canonim
five Conftitution in Anno Dom. 1640. Edit: quinam eorundem fue-
runt aut (et) ſunt debitè & idoneè obſervandi & ufitandi; and the Buli-
nefs was referred at two ſeveral Times, to two Committees of Biſhops.
And that he finds no further Progreſs made therein, and no Wonder;
for the Paſſing of the Act ſupra put a ſtop to the Project of that Con-
vocation, whó 'tis plain were about to Trump up thoſe Canons of
1640.
21. H. 8. c.
13. ſtands in
i
1
iz
Having given this Account of Canons in general, and alſo of the How Stat.
Canon, as to Cafes not within the Statute 21 H. 8. yet before I come
to conſider the Qualifications mentioned in the ſaid Statute, I will ob- Force 17.
ferve how this Statute ftands in Force; and it önce was a Queſtion be-
tween the common Lawyers and Civilians, Whether it ſtood in Force
or not? As appears 18 Eliz. C. B. Dyer 352. As to this. .
Notez That by the firſt and ſecond of P. & M. c. 8. fo much of this Pluralitics
Statute of 21 H. 8. as concern's Pluralities is repealed; but then by 1992 Posts
Statutė i Eliz. C. 1. 6. 2. this Statute of i loi 2 Pia M. of Repeal M. c. 8.
is repeated. But in this Statute i Eliz. Sect. 13. there is this Clauſe? 14 2 P. So
That all Statutes and Laws made void hy the i & 2 P. & M. and not by 1 Éliz. c.
ſpecially and particularly revived by this ax, fhall ſtand and remain 1.9. 2. Go g.
void and repealed, as they were before the making of this Aa,
&c.
Now this Statute of 21 H. 8. is not thereby revived, or mentioned to if :1 H. 8.
be revived; ſo that fome Perſons will hold, that this Statute ought be revived
not to have been held revived, and would maintain their Opinions by
this Way of arguing: That this cannot be within the Rute laid down
by the Lord Coke's Inft. that a Statute of Repeal being repealed, the If by a Sta-
Firſt Statutes are revived; for here by expreſs Déclaration, no Statutes peal being
are to be revived which are not particularly mentioned by the Statute repealed the
to be revived, which very many Statutes are. But this of 21 H. 8.
is not; and this, ſay they, is one Reaſon the Judges went upon, in revived.
holding that the Statute í E. 6. C: 26 concerning the Confecration of
Biſhops, and the Proceedings in the Ecclefiaftical Courts in the Name on of Bi-
of the Biſhops, which was repealed by this fame Statute of 1 & 2 P. ſhops.
M. but held not to be revived by i Él. by Reaſon of the Clauſe here-
in before-mentioned, not being mentioned in that Statute ; and if there
had been nothing more in the Cafe, doubtleſs it muſt have been agreed,
that the Stat. 2i H.8. had ftood repealed : But it happens, that in the
Statute
Firft Sta-
rutes are
Confecrati
►
c. 21.9. 21. is
1 Eliz.
25 H. 8.
contrary to the expreſs Words of i Eliz, which ſay, That no Statute
20 The Clergy-Man's Law: Or, Chap. III.
Dilyenlatis Statute of 25 H. 8. C. 21. which is exprefly reviv'd by that of ı Eliz.
ons, goce
there is this' Clauſc; Provided always, that this aa, oj any Thing
If a Clauſe thereiit contained, oz aliy Licence or Diſpenſation to be granted by
in 25 H. S.
Uertue thereof, ſhall not extend to the Repeal 02 Derogation of the
revived by Statute 21 H. 8. nov to any Thing contained od mentioned therein ;
noz that this AĞ, noy any Thing to be done by Authority thereof, fali
be taken 02 erpounded to give licence to any Perſon od Perſons,
to have any moze Number of Benefices than limited in the ſaid
ax, and that the ſaid a& of Pluralities, and Non-relidence of Be-
nefices, and every Thing contained, fhall ſtand good and effexual in
all Intents and purpoſes, accoading to the true Meaning thereof;
any Thing in this preſent Ai, oz any Licence Ol Diſpenſation,
to be had by Authority thereof, in any wiſe notwithſtanding.
1f 21 H. 8. So that by Force of this Clauſe in the Statute 25 H. 8. the Statute of
revived by 21 H. 8. is held to be revived. But this is objected to be a very much
ſtrained Expoſition, to have a Statute to be revived by Implication
ſhall be thereby revived, which is not therein particularly mentioned
to be revived, which the 21 H. 8. is not. That this Statute of 21 H. 8.
is revived, they own to have been the conſtant Opinion; and is evident
by conſtant Practice, very many Actions and Judgments having been
brought and given upon it; but that, they ſay, it was never directly in
queſtion, whether in Force or not, except in that Cafe mentioned,
Over-ruled, Dyer 352. a. where it was objected by ſome civil Lawyers, That it
was repealed, but over-ruled by the Judges. As to this Cafe in Dyer,
rcpealed.
'tis anſwered, That the Reaſons which ſeem to be given in that Cafe,
are not ſufficient to hold the Statute, 21 H. 8. to be revived: The
Reafon given is, That it had been meerly contrary to the Deſign and
Intent of the Statute i Eliz, to have revived it ; but that the Act of
25 is revived, in which is the Provifo before-mentioned, which affirms
the 21 to be in Force : But the Judges ſay not how it had been con-
trary to the Statutc of 1 Eliz. to have revived that of 21 H. 8.
but if it had been contrary to the Intent of that Statute to have
revived it exprefly, it muſt be as contrary to have it revived by
Conſtruction or Implication ; for by what Way foever 'tis revived,
the Effect and Conſequences muſt be the ſame. The Statute
21 H.8. cannot be ſuppoſed contrary to 1 Eliz. unleſs one muſt ſup-
poſe the Pope's Power of Diſpenſing is ſome Ways owned by it: But
this can be no Reaſon; for the Pope's Power would have been no
Ways owned by reviving that Statute, for 'tis not therein any ways
aſſerted : Beſides, the Statute 25 H. 8. expreſly provides, that it ſhall
be in Force; and yet that was to take away, diſown and abrogate the
Pope's ufurped Power of Diſpenſing. But the Pope's uſurped Power of
When the Diſpenſing is no other Ways owned by the 21, than in Part reſtrained
Pope had a by: But 'tis true, according to the Opinion and Practice of thoſe
Diſpenſing
Times, the Pope was owned to have a Power of Diſpenſing here in
Eccleſiaſtical Matters, and Diſpenſations did uſually flow from Rome
after the 21ſt, till the 25th of H. 8. but that was a Wrong, and U-
ſurpation, contrary to the Law and Inſtitution of the Government, and
is ſo declared by Parliament in ſeveral Statutes. So that Setting up
and Reviving the Statute 21 H. 8. had ſet up and allowed all Legal
Acts relating to it, but could not have owned any encroached or uſur-
ed Power, unleſs that uſurped Power had therein been taken Notice
ftrains Dif- of as legal, or referred Diſpenſations to be had from Rome, or the like.
penfations,
But the Statute 21 only reſtrains Diſpenſations, and leaves the Granting
that it was
Power of
here.
How the 21
H. S. re-
C.
4
ot
Chap. III.
21
The Complete Incumbent .
ons; Spore
That Stat.
21 H. is in
of them to Conſtruction of Law, which is afterwards, and before the Diſpenſatis
i Eliz, declared to be in the King and Parliament, and ſettled by them.
But this is but mentioning the Opinions of ſome, who I have heard
argue, that this Statute ought to ſtand repealed, which I take to be
contrary to Law ; For I muſt and do take the Statute of 21 H. 8. to
be in Force, the Law and Practice ever ſince having been taken to be Forćc.
fo, and Multitudes of Judgments have been given upon it.
A Spiritual Perſon that hath one Benefice with Cure, of the yearly
Qualificati
ons confider-
Value of Eight Pounds, or above, may be qualified to hold by Difpen- ed.
ſation, one other Benefice with Cure, (or more, as the Cafe may be)
without making a Ceſſion of the former : But then ſuch Perfon, for
that Purpoſe, muſt be qualified either by Birth or Relation, by Uni-
verſity Degree, by Office or great Employment, or laſtly, by Re-
tainer. If by Birth or Relation, he muſt be the Brother or Son of a By Birtti
:
Temporal Lord born in Wedlock, or the Brother or Son of ſome Knight
born in Wedlock; and then he may purchaſe Licence or Difpenfation,
and receive, take, and keep two Parſonages or Benefices with Cure of
Soul. But Note, That the Baſtards of ſuch Perſons are not qualified,
nor the lawful Son of any Biſhop, (Biſhops at the making of this Act
not being permitted to marry) nor the Son of any Baronet, that Dig-
nity not being then created. If by Univerſity Degree, he muſt be ci- By Univer-
fity Degree:
ther Doctor or Batchelor of Divinity, Doctor of Law, or Batchelor of
Law Canon, and admitted thereto by one of the Univerſities of this
Realm, and not by Grace only; and then by Diſpenſation he may
hold two Benefices as aforeſaid. If by Office, or great Imployment, he Pipotente
muſt be either a Biſhop Suffragan, that doth Exerciſe the Office of a
Biſhop by Commiſſion of a Biſhop; and then he may liave two Bene-
fices with Cure of Soul, any former Act made to the contrary not
withſtanding. Stat. 26 H. 8. c. 14. or elſe be a Perſon ſworn of the
King's Council, and then he may by Diſpenſation hold three Benefices
with Cure. If by Retainer, he muſt be duly retained to be a Chap-
BýRerainers
lain either to the King, Queen, Prince, or Princeſs, or to one of the
King's Children, Brethren, Siſters; Uncles or Aunts, all which may
retain as many Chaplains as they pleaſe, to hold two Benefices with
Cure, of whoſe Gift foever they be. And moreover, if he be the
King's Chaplain, and it ſhall pleaſe the King's Highneſs to give him any
Benefices, or Spiritual Promotions, to what Number foever they be, it
is lawful for him to accept and take the fame, without incurring the
Danger, Penalty, or Forfeiture, in this Statute comprized, any Thing
in the ſaid Act to the contrary notwithſtanding. But it is a Queſtion,
Whether theſe Benefices of the King's Gift muſt not be alſo taken by
Diſpenſation? Hil. 8. Jac.Wallop v. Biſhop of Exeter, &c. Brownlow
and Gouldsborough, i Part 1621 and 2 Part 45. Or elſe he muſt be
Chaplain to an Archbiſhop, who may qualify Eight; or of a Duke;
or Biſhop, who may qualify Six; or of a Marquiſs or Earl; who may
qualify Five; or of a Viſcount, who may qualify Four; or of the Lord
Chancellor for the Time Being, or of a Baron or Knight of the Gar-
ter, who may qualify Three ; or of a Dutchefs, Marchioneſs
; Goun:
teſs, Baronefs, (being Widows, or having taken Husbands, under the
Degree of a Baron) or of the Treaſurer or Comptroller of the King's
Houſe, the King's Secretary, the Dean of his Chapel; his Almoner,
or Maſter of the Rolls, each of which may qualify. Two; or of the Ali tneje
Chief Juſtice of the King's Bench, or Warden of the Five Ports, which have puta
may qualify One : The Chaplains of all which (being legally re- cenči, &c
G
tained) for two Bao
ncficed.
22
The Clergy-Man's Law: Or, Chap. III.
Tettimonial
Parol.
Difpenfatis
, tained) may purchaſe Licence or Diſpenſation, and take, receive and
keep two Parſonages or Benefices with Cure of Soul. Stat. 21 H. 8.
C. 13. Although the former be above the Value of Eight Pounds.
Qualified
Though a Duke, Earl, or the like, be but a Minor, or not above
by Minors.
ten Years of Age, in the Cuſtody, and in the Family of another No-
bleman, who may and doth retain Chaplains; yet he
may qualify
Chaplains to be diſpenſed withal to hold two Benefices with Cure, in
like fort as if he was of full Age. Paſch. 44. Eliz, the Qucen v. Bi-
ſhop of Salisbury, &c. 4 Coke, in Acton's Cafe, fol. 119.
If a Spiritual Perſon be retained by Word only to be a Chaplain, by
to qualify.
ſuch Perſon as may retain and qualify by the Statute, and doth abide
and ſerve as Chaplain in his Family, or if he hath alſo obtained Let-
ters Teſtimonial, ſigned only, or under the Scal only of his Maſter,
witneſſing that he hath retained him; yet if ſuch Letters Teſtimonial
be not under both Sign and Seal, he is not a Chaplain within the Sta-
tute to hold a Plurality. Trin. 28 El. the Queen v. Savacre. Godb.
41. However, when the Queſtion (to avoid a Leaſe) was, whether
Retainer by the King's Chaplain, retained by Parol only, might have a Plurality
by the Statute? It was adjudged, That in regard that the Chaplain
(concerning whom the Queſtion was) died thirty Years before, and
whilſt living, was reputed to be the King's Chaplain, and exerciſed
the Place of Chaplain in his Cloſet, and elſewhere, and had all the
Benefits of his Chaplain, it ſhould be intended he was his Chaplain, and
well retained. Mich. 37 6 38 Eliz. Whetſtone v. Higford. 3 Cro. 424.
See the ſame Cafe in Savil, p. 135. So where a Counteſs having re-
tained one Chaplain without Patent, that was thereupon advanced to a
Plurality, did afterwards by Patent retain two others : The firſt Re-
tainer was held good, becauſe the Patent is not of Neceſſity, but only
in caſe where he hath Cauſe to fhew it, for the Retainer is good
without it. Paſch. 31 El. the Queen v. Biſhop of Lincoln and Skiſling.
Moor 227. But this Reaſon begs the Queſtion, which is, Whether a Re-
21 H. 8.c.13. tainer by Parol be good to qualify for a Plurality? The Words of the
Statute 21 H. 8. c. 13. are: Provided, that the ſaid Chaplains ſo pur-
Letters Te.. chaling, taking, receiving, and keeping Benefices with Cure of Soul,
as is aforeſaid, ſhall be bound to have and erljivit, where Need fhaii
be, Letters under the Sign and Seal of the King, ol other their
Lord and Maſter, teſtifying whole Chaplains they be ; and elle not
to enjoy any ſuch Plurality of Benefices by being ſuch Chaplain,
any Ching in this a& notwithſtanding. So that ſuch Letters feem ab-
folutely neceſſary, and likewiſe that they be under Hand and Seal as
aforeſaid. And where an Incumbent pleaded, That he was retained
Chaplainto the Counteſs of Derby, and had a Diſpenſation to take
two Livings, being qualified by the Statute; it was replied, That the
faid Counteſs had retained two Chaplains before ſhe retained the De-
fendant, and iſſue taken upon the Retainer of one of thoſe two: And
to prove the Retainer, a Copy of the Retainer, entred in the Court
Evidence of of Faculties, was offered to be given in Evidence : But the fame was
not allowed by the Court; who ſaid, That the Oath of any who had
feen the Retainer under the Hand and Seal of the Counteſs, would
have been good Evidence in that Cafe, by reaſon the plaintiff was a
Stranger to it. Hill. 2. Car. 1. C. B. The King v. Frankwell. Lit.
Repor.
None of the Honourable Perſons aforeſaid, may advance above the
Number appointed, to receive any more Benefices with Cure of Souls,
than
g. 22.
flimonial.
* Retainer.
2
Chap. III. The Complete Incumbent.
23
.
Time.
up
Op .
than one: And if they do, then every Spiritual Perfon fo advanced a- Diſpenſati-
ons, Sec.
bove the faid Numbers, do incur the Pains and Penalties in the ſaid
Statute. Stat. 21 H. 8. C. 13.
Penalties in
This Act againſt Pluralities is to be conſtrued ſtrictly; and therefore, The Aa to
if a Biſhop be made an Archbiſhop, and doth hold both Dignities; or be ftri&tly
a Baron (that may qualify three) be created an Earl, who may quali- conſtrucd.
fy five, and then is made Warden of the Five Ports, who may quali-
fy one ; yet they can qualify only in their beſt Capacity, viz. eight
as Archbiſhop, and five as Earl; and fo of all the reſt
. Trin.
43
Eliz. Drury's Cafe, 4 Coke 89, 90. Hill. 43 Eliz. Actor's Cafe,
4 Coke 117
If a Baron (that can qualify but three Chaplains) retains four. at one Priority in
and the ſame Time, none of them are qualified. Jenkins's Cafe 91.
Cent. 6. But contrary to this it is ſaid, That where there is a Priori-
ty in Time, as to the Retainer, thoſe of them ſhall be the qualified
Chaplains that are firſt advanced. Dyer 312. p.88. And this ſeems to be
admitted. 4 Coke 90. a.
If any perſon hath retained more than the Number he may have by
the Statute, although they be all Chaplains at the common Law; yet
when he hath retained ſo many as the Statute doth allow him, the
Statute is executed, and only thoſe that firſt make the Statute-num-:
ber are qualified to hold a Plurality; and though not any of that Num- if firk Plu-
ber of Chaplains, that are allowed to any perſon by the Statute, (being the Superny-
retained according to the fame) be advanced to a Plurality before o- merary
thers, that are after retained by their Maſters have taken Pluralities, Chaplains.
yet their Qualifications remain good, and the firſt Benefices of ſuch
Supernumerary Chaplains are void, notwithſtanding ſuch their Retain-
ner. Trin. 43 El. Drury's Cafe. 4 Co. 90. Trin. 27 El. the Queen o.
Biſhop of Glouceſter and Savaker. 1 Anderſon 200. Mich. 41 El. the
Queen 2. Drury, in 3 Cro. 723. and in Mloor 561. Trin. 43. El. Dru-
goy v. the Queen. 3 Cro. 839. 5 Co. 89. and 45 El. the Queen v. the
dent and Scholars of Magdalen College. Moor 277. fame Cafe, Savil.
p. 101. And yet it was the Opinion of Catlyn, Saunders and Dyer,
That if a Baron (who is allowed but three Chaplains) retain ſix
by his Letters Teſtimonial, and all ſix are preferred to lix feveral Plura-. ted only
lities, the three that are firſt promoted, are only warranted by the warranted.
Statute. Trin. 14 El. Dyer 312. And to this purpoſe, Walmſiy held
in the Caſe of the Queen againſt Drury. Mich. 14 Eliz. 3 Croke 723.
Alſo Hern, Serjeant, faid, That it was fo refolved in the Queen's Bench,
in the Caſe of the Lady Bridges. But the former Opinion (as I take
it) is the better.
If a Baron (that can have but three Chaplains) doth qualify three Three quali-
accordingly, and they being advanced to Pluralities, he, upon Diſplea- fied by a Ba-
ſure, or for other Cauſe, doth diſmiſs them from their Attendance, advanc'd, are .
yet they are his Chaplains at large, and may hold their Pluralities afterwards
for their Lives : And (though he may entertain as many other as he by him dif-
will) yet he cannot qualify any of them to hold a Plurality, whilſt
the firſt three are living. And fo of others. Mich. 370 38 Eliz. Sa-
vacre's Caſe. Owen, Trin. 42 Eliz. Drury's Cafe. 4 Coke 90 Paſch.
28 Eliz. Savil, P: 79. Trin. 28 El. the Queen v. Savacre Hughes. But as
any of the three firſt die, he may qualify others, the Queen. v. Savacre
Owcii, if fo bc he retain them anew after the Death of the firſt; for if
during the Lives of the aforeſaid three firſt Chaplains, he hath retain-
ed
Firſt promo
Q.
.
+
24
The Clergy-Man's Law: Or, Chap. III.
Olis, Paco
Rule of Rc-
tüiner.
on,
how de-
terinined.
1
Dilyenratis ed by Letters Teſtimonial ſigned and ſealed, a fourth, yet by the
Death of one of the three firſt, that Retainer will not be good to qua-
lify him for a Plurality. Irin. 43 El. the Queen o. Drurg'. 3 Croke
723. For it is a Rule, That the Perſon retaining, muſt be capable to
retain at ſuch Time when he Signs and Scals the Qualification, to give
his Chaplain Benefit thereby. And therefore if the Son and Heir Appa-
rent of a Duke, Earl or Baron, retains a Chaplain, fuch Retainer
doth not make him a Chaplain to hold a Plurality after the Death of
the Father of the Perſon retaining, though he continue in the Service
of the Son, when he is the very Baron that is, without an After-retain-
cr. Fenkin's Cafe, 91. Cent. 6.
Validity of a As the Perſon retaining, to qualify his Chaplain for a Plurality, muſt
Qualificati-
be capable thereof when he Signs and Seals the Inſtrument of Retain-
er ; fo to give him the Benefit thereof generally, he muſt continue ca-
pable of qualifying till ſuch 'Time as his Chaplain is advanced : For
the Validity of a Qualification not executed, for the moſt part deter-
mines with the Power of qualifying in him that made it. And therefore,
if a Perſon hath any Office that gives him Capacity to qualify a Chap-
By Removal plain, and he qualifieth one accordingly, by his being removed from
his Office, the Qualification is ſo voided, that the Chaplain cannot af-
terwards take a ſecond Benefice, by Vertue of that Qualification,
Actor's Cafe. Hill. 45 Eliz. 4. Coke 117. So if a Perſon hath duly
By Death. qualified a Chaplain, and then dieth, by his Death his Chaplain is bar-
red from taking a ſecond Benefice upon ſuch Qualification; yet not from
retaining a Plurality taken in the Life-time of the Qualifier. Trin.
14 Eliz. Dyer 312.. And though a Nobleman doth continue in Life,
By Attain-
yet the like Law is, if he be attainted, which is a Death in Law; for
by the Judgnient he loſeth his Quality, and becomes Ignoble. Stam-
ford's Pleas of the Crown, and 4 Co. 118. b. 119. a. in the fame Cafe
of Afton. Mich. 44 G 45 El. the Queen v. Biſhop of Peterborough.
Moor 678. And yet, by the ſame Cafe, if a Baronefs, &c. hath re-
tained two Chaplains, and after taketh to Husband one of the Nobili-
ty, and there loſeth her Capacity of retaining Chaplains during that
Coverture ; yet the Retainer of her former Chaplains doth remain, fo
that they may after the Marriage take two Benefices with Cure,
without a new Retainer : So is Hill. 45. Eliz. Afton's Cafe. 4 Co. 118.
Diſcharge by Jenkins's Cafe 91. Cent. 6. But otherwiſe it is, if the Lord that mar-
Baron, Soc. rieth ſuch Baroneſs, doth after Marriage diſcharge her Chaplains be-
fore their Advancement. Mich. 44 45 El. the Queen C. Biſhop of
Peterborough. Moor 678. But if the Husband doth not diſcharge
them during his Life, and dies before ſuch his Lady, the Chaplains
that ſhe had before her Marriage retained and qualified, remained
her Chaplains, and are by ſuch her firſt Retainer qualified to take two
Benefices with Cure. Mich. 440 45 El. the Queen v. the Biſhop of
Peterborough. Moor 678. And ſo I conceive, that if any other Perſon
capable of qualifying a Chaplain to hold a Plurality, doth diſcharge his
Chaplaiir before he hath taken the Benefit of his being qualified, he
cannot afterwards lawfully hold two Benefices within this Statute.
Let the Qualification be never ſo good, yet that alone doth not ena-
ble any perſon to take a ſecond Benefice without making a Ceſſion of
the former, but a Diſpenſation for that purpoſe muſt alſo follow. It
hath indeed been a Queſtion. Hill. 8 7ac. Brownlow and Gouldsbo-
rough ad Part 45. and IVhetſtone and Hickford's Cafe. Savil 1356
which I do not find reſolved. If the King's Chaplain having one Bene-
der.
Ccflion, with-
our a Dira
penfation
follows.
Q
fice
Chap. III. The Complete Incumbent. .
25
ons, Spri.
a Licence.
fice of the Preſentation of a common Perſon, accept another of the Diſpenſati-
Preſentation of the King, without any Diſpenſation, both being of or a-
bove the yearly Value of Eight Pounds, whether the firſt be void by the
Statute 2i H. 8. againſt Pluralities, by Reaſon of the Clauſe therein.
Chat it ſhall be lawful to every Spiritual Perſon od Perſons, being 21 H. 8. c.
Chaplains to the King, to whom it fall pleaſe his Highneſs to give 13. 9.29.
any Benefices od Promotious Spiritual, to what Number loe.
ver it be, to accept and take the ſame, without incurring the
Danger, Penalty and Forfeiture in this Statute compriſed:
And ſo it hath been ſaid, That if the Chaplain of a Lord takes a fe- A Chaplain
cond Benefice with Cure, without ſpecial Diſpenſation, his firſt is not may fue for
void by the faid Statute, becauſe the Words are not, that he ought to
fue for a Licence, but that he may ſue for one : But in this laſt Caſo
'tis there faid, that the firſt is void by Spiritual Law. Trin. 14 Eliz.
Dyer 31 2. And ſo, I ſuppoſe, it is in the former Cafe : For by that
Statute the Canon Law (which makes a firſt Benefice with Cure, of
what Value foever, void by the Acceptance of a ſecond) is affirmed as
to Benefices with Cure, where the firſt is of the yearly Value of Eight
Pounds; nor doth the Clauſe aforeſaid look like a Repeal thereof as
to this Cafe, but only is an Addition to a former Clauſe, that gives the
King's Chaplains Power to purchaſe Diſpenſations, and take two Benefices
with Cure; which otherwiſe they could not do, by reaſon of what
was before enacted, viz. ). 9. 10, 11. Chat å ſecond Benefice with
Cure, thould avoid a former of Eight Pounds per Ann. as to all per: Vide Dyer.
Cons; that all Diſpenſations to the contrary ſhould be void; and that 129, 237,
the perſons obtaining and uſing them thould be ſubjeđed to Puniſh- 255, 347,
ment. And if that Clauſe be not a Repeat of the Canon Law in this 4 Co. 15, 78.
Point, then thereby a former Benefice, when the King's Chaplain ac- 24 El. 3. 39
cepts a ſecond of the King's Gift, is as much void by Canon Law, as
when a Lord's Chaplain accepts a ſecond, no Diſpenſation being had
by either ; and ſo in both Caſes the Queſtion comes to be one.
If a qualified Perſon takes two Benefices with Cure, without Dif-
If a qualifi-
penſation, the firſt being of the yearly Value of Eight Pounds, whether ed Perſon
the firſt be as well void by the Statute as Canon Law, is to be conſi- takes two
dered. So that the Patron, to prevent a Lapfe, muſt preſent without without Dis
Notice from the Ordinary : And I rather think, that it is void in ſuch penſation,
Cafe by the Statute ; for though the Words of the Statute are not,
that he ought to fuc, or that he ſhall fue for a Licence, but that he
may fue for one, (which makes the Doubt) yet they need not occaſi-
on any: For when 'tis ſaid, that they may purchaſe Licence, and re-
ceive and keep two Benefices, it is by way of Exception, as to two
Clauſes that went before : (The Firſt) That a former Benefice with
Cure, of the yearly Value of Eight Pounds, ſhould be void by taking
a ſecond: (The other) That he that obtains a Diſpenſation to hold a Expoſition
former with the ſecond, ſhould be puniſhed. So that the Senſe fuem- of the
eth to be this : That though it be enacted, That if
Words (may
Perſon having
any
purchaſe.)
one Benefice with Cure of the ycarly Value of Eight Pounds, accepts
another, the firſt ſhall be void ; and alſo the Perſon that obtains a
Diſpenſation to hold them, ſhall be puniſhed ; yet he that is qualified
according to this Statute, may purchaſe a Difpenfation to hold two
Benefices with Cure without Puniſhment, although the firſt be of the
yearly Value of Eight Pounds; and may take, receive, and keep the
fame, notwithſtanding what is before enacted : From which it follow-
eth, that if he doth not purchaſe Licence, he may not keep them both,
H
by.
Spec.
26
The Clergy-Man's Law: Or, Chap. III.
1
the former
Clauſes
i
What Words
make a Dir-
Diſpenſati: by that general Prohibition, from which this is an Exception; and the
011@c.
Words, may purchaſe, are moſt proper to expreſs this Šenfe. Nor is
there any Řeaſon why a former Living ſhould not be voided for want
of a Diſpenſation by a Statute Law, as well as by a Canon, both be-
ing poſitive, when it may in fome Caſes continue full, notwithſtanding
both, by Vertue of ſuch Diſpenſation; neither can it be ſuppoſed, but
Extent of
that the ſaid general Claufes do extend to Perſons qualified for Plura-
"lities, if they be not diſpenſed with as well as to others, ſeeing no ſuch
Pluralities before that Statute could have been without Diſpenſations;
the Statute all along makes Diſpenſations the Means, and only Means,
by which they may be held, and did not Repeal the Canon Law,
by which no Perſon may hold them, tho' he be qualified according to
that Statute. And as to this, I have Serjeant Moor's Opinion to juſti-
fy me what I ſay, in this Argument of the Caſe of Robins v. Gerrard
and Prince. Moor 440. which Caſe is reported in 4 Co.78. by the
Name of Digby's Caſe.
A Diſpenſation however is certainly neceſſary to prevent a Cellion
penſation by the Canon Law : But to make it valid for that purpoſe, it is not
of Neceflity, that the Word Diſpenſamus be contained therein ; for
it hath been adjudged, that a Diſpenſation with theſe Words, Unimus,
Anneximus & Incorporamus the ſecond Benefice to the firſt, without
the Word Diſpenſamus, was good, and did enure to a temporary U-
nion, which the Archbiſhop migḥt make without the immediate Or-
dinary and Patron, the Clerk being qualified according to the Statute,
Mich. 41 El. the Queen v. Page, and Biſhop of London. 3 Cro. 719,
And it was then alfo faid, That where a Difpenfation was to retain a
ſecond Benefice, De Donatione, Diſpoſitione, ſeu Præſentatione cu-
juſcunque ; And a College having an Advowfon, to which they uſed
by Election to make a Nomination, preſented him who had this Dif-
penſation, who was alſo inſtituted and inducted ; the Diſpenſation was
not good, for want of the Word Electione therein.
If a Difpenfation be for an Incumbent of a Church to hold another
Words, Mo-
do & Dum- Living therewith, Modo fit infra Ten Miles of the former; and he
modo, SC
thereupon accepts of one that is more than Ten Miles diſtant from the
firſt, yet the Diſpenſation is good to hold both Benefices: For Civilians
being called, ſhewed, That by their Law, Modo & dummodo, are ex-
prefs Proviſo's in ſuch Licences; but do not make a Condition, unleſs
it had been added, That if he doth otherwiſe, then it ſhall be void :
But is only as an Admonition or Caution, that he ſhall be puniſhed by
Eccleſiaſtical Cenſures, if he doth otherwiſe: And affirmed, that this
had been always the Expoſition in granting ſuch Licences; and there-
fore, tho' Modo, dummodo, ita quod, make a Condition by the Expo-
ſition of the Common Law; all the Court reſolved, That the uſual
Expoſition as to theſe Licences ſhould take place, to prevent the In-
conveniency of unſettling many Men's Titles, and making their Li-
vings to be in Lapſe. Trin. 13 O 14 Car. Dodſon v. Lin. 1 Croke 475.
fame Caſe. Jones 394. If an Incumbent hath a Diſpenſation to hold
a Benefice, altho' he be deprived, this ſhall not prevent an Avoidance,
if he be after deprived; becauſe, it ſeems, that this is repugnant, and
is as much as to ſay, that the Benefice ſhall be full, when it is void,
Roll's Abr. 2 P.359. Contra 11 H. 4. 60.b.
Difpenfation
For the preventing of a Cellion, by taking a ſecond Benefice, 'tis
not enough that the Difpenfation be truly made, but alſo that it be had
in due Time: For if an Incumbent of a Church incompatible be pre-
3
ſented
of the
Avoidance
not pre-
yented.
to be had in
dre Time.
1
Chap. III. The Complete Incumbent.
27
fented and inſtituted, or collated into another, and then obtaineth) Difpenfatio
one, bora
Diſpenſation to hold them, and afterwards is inducted, his Difpenfati-
on comes too late, and his firſt Benefice by his Inſtitution into his fe-
cond is void, his Diſpenſation notwithſtanding. Hil
. 41 El. Digby's
Cafe. 4 Coke 79. Hil. 43 El. Robins v. Prince. Gouldsborough 162.
Mich. 1o. Fac Colt and Glover v. Biſhop of Litchfield. Hobart Hol.
38. Eliz. Robins v. Gerrard. Moor 434. All the Doubt hath been,
becauſe the Statute againſt Pluralities doth not avoid the Church be-
fore Induction : But at the Canon or Common Law, Inſtitution to a Inftitution
Benefice doth fill the ſame, and makes the inſtituted, Rector Eccleſia filleth the
before Induction againſt himſelf, and all other Perſons but the King ;
and in the King's Cafe, he is full and complete Incumbent as to Cure
of Souls. 22 H. 6. 27. d. 44. E. 3. 3. 11 H. 4. 9. C. 33. H. 6. 13. A.
11 H. 7. 29. Hil. 14 and 15 Jac. Hutchins v. Glover. 2. Croke 463.
Mich. 19. do 20 Eliz. Digby v. Fitzherbert. Dyer 360. Trin. 14 7ac.
Gouldsborough 163. And therefore it hath been adjudged, That if he
that hath a next Turn, doth preſent his Clerk, and he be inſtituted, Quare.
and not inducted, it shall ſerve for his Turn. Mich. 16 17 Eliz.
Rot. 4. cited in the fame Cafe in Gouldsborough 163. And if Inſtitu-
tion did not fill the Church, a Man, by being inſtituted into many
Churches, might bar all others from being preſented to them, and by
getting Sequeſtration of the Profits of them, wholly fruſtrate the Act
and Canons againſt Pluralities. And if the ſecond be full by Inſtituti-
on,
the firſt after ſuch Inſtitution cannot be full alſo; and fo Difpenfa-
tion after the ſecond Inſtitution muſt come too late, unleſs it was ſuf-
ficient to make that full, which was once void. Beſides, by the Act,
he can only purchaſe Licence to receive, have, and keep two Benefi-
ces; and therefore his ſecond Church being full by his Inſtitution, he
cannot afterwards purchaſe Licence to receive, or have that which he
had before ; and ſo the Firſt being voided by the ſecond Inſtitution, a
Difpenfation will not enable him to retain that which he had loft be-
fore, and which he cannot receive.' 4 Coke 79. b. Digby's Cafe.
If
any Perſon having two Benefices with Cure, by a good Difpenfati- Where a
on, doth afterwards take a Third ; Heron ſaid, "That it had been ad- Perſon ha-
judged, that both of them ſhould be void. King v. Biſhop of Chiche- nehces by
ſter. Noy 149. And yet 'tis faid, to have been adjudged per Curiam, Diſpenſati-
that the firſt Benefice is only void. Mich. 5 Jac. Hughes 153. But the
on, doch af-
Reaſon of the Judgment in the firſt Caſe might be, that the Diſpen- take a
Third.
fation was to hold together two certain Benefices therein expreſſed : For
Nota Diffe-
then, I ſuppoſe, that the taking a Third, without other Diſpenſation, rentiam.
doth avoid both the two firſt : And the Reaſon of the ſecond Judg-
ment might be, becauſe the Diſpenſation was general, to hold any
Benefices with Cure, and ſo both Judgments may be well given ; but
in the laſt Cafe, 'tis good that he who hath two Benefices with Cure,
by ſuch general Diſpenſation, or by Diſpenſation, Cum claufula per-
mutationis, doth before he accepts a Third, determine his Choice of
the two firſt, by his Reſignation of one of them, efpecially if he deſign
to retain that of the two which he took laſt.
When the Diſpenſation is made to hold three Benefices with Cure, Diſpenſation
whereof the firſt is of the yearly Value of Eight Pounds, (unlefs in the to hold three
Caſe of the King's Chaplains, when the laſt is of his Donation) the
Diſpenſation is 'void, and he cannot thereby have two Benefices, as
Hobart held, in the Caſe of Colt and Glover v. Bifhop of Litchfield and
Coventry. Hobart 158. And 'tis ſaid, that divers Juſtices and Serjeants
were
terwards
28
The Clergy-Man's Law: Or, Chap. III.
ons, SC
the Incuni-
made a Bi-
Conſecrati-
on.
Dispenfatis were of this Opinion, and that the Forfeiture of Twenty Pounds, and
the Profits of the third Benefice, did, by taking and uſing ſuch Diſpen-
ſation, fall upon the Incumbent, according to the Statute. 21 H. 8.
13. Mich. 150.16 E). Dyer 327.
As by not ſubſcribing the Articles at the taking of the ſecond Bene-
fice; and by Diſpenſation the firſt Church is not voided by a ſecond,
as hath been here ſhewed; the fame may be faid of Union, Appro-
priation, and Commendam recipere : But of theſe in their more proper
Place.
Ceffion by
Not only a Benefice with Cure or Dignity, may be ſaid to be void
bent's being by Ceſſion, when the Incumbent thereof accepts of another Benefice,
or Dignity, as before is ſhewed (where by Dignities, inferior Dignities
ſhop.
only are not to be underſtood,) but alſo, when ſuch Incumbent is made
a Biſhop, for thereby all his Eccleſiaſtical Preferments which he had
before, whether with or without Cure, are actually void. Pafch. 19
Car. 2 Kerry Edes v. Walter Biſhop of Oxford, Vaughan 19. 29 E. 3.
44. C. 11 K. 8. 11 H. 4. 37, 38, 60, 67.41 E. 3. sob. Pafch. 9 Jac.
King v. Horsfall and Wale. Davis 68. 7 H.4. 25. 6. 24 E. 3. 26.b. Do-
ctor and Student 126. b. Hill. 20. Jac. B. R. Palmer p. 344. But it
is not the Election of any one to be a Biſhop, and Confirmation thereof,
that doth void his former Preferment, until Conſecration be alſo had.
20 E. 3. Brief. 250. 5 E. 2. Fitz. Brec. 800. 41 E. 3. 5. b. 1 H. 4.
37, 38, 59, 60. Hill
. 17 7ac. B. R. Palmer p. 344. And therefore if
an Incumbent of a Prebend be elected Biſhop of the Biſhoprick, that is
Patron of the Prebend; and after that, and before Confecration, the
King doth grant to him the Temporalities of the Biſhoprick, yet there-
What Pre- by his Prebend is not void ; for before Confecration he is no Biſhop,
and may refuſe the Biſhoprick. 41 E. 3. 5. b. Nor doth Conſecration
void by Con-
only void ſuch Eccleſiaſtical Preferments, which the new Biſhop had
within the Dioceſe of which he is made Biſhop, but alſo of all others of
what Dioceſe or Kingdom ſoever they be: And therefore if a Clerk,
who hath one or more Benefices here in England, be confecrated a
Biſhop of ſome Dioceſe in Ireland, all his Preferments here are, ipſo
fatto, without any Deprivation, void. Manwaring and Woodley's Cafe,
vouched in Evans and Aſcough's Caſe. Palmer 78. Becauſe they are
not void by the Statute againſt Pluralities, as it is ſaid in Colt and Glo-
By Canon
ver's Cafe. Hobart 157. but by Canon Law, which is one and the ſame
throughout the whole Church. 10 E. 3. 1. 19 E. 3. Tryal 57. 5 E.
3. 9 Hill. 22 Jac. Evans and Kiffith v. Aſcough. Palmer p. 457. Noy
98. and Latch. 31. and 233. The ſame Cafe by Jones 158. The fame
Law is, if a Clerk be created Biſhop of Man, as was reſolved, 15
Titular Bi- Jac. and Hill. 17. Jac. B. R. Palmer 334. But if a Man be made a
ſhop.
meer titular Biſhop, as of Chalcedon, Utopia, Jeruſalem, (Banks) ſaid,
no Benefice is voided thereby, in Evans and Afcough's Cafe. Latch.
Biſhop Suf- 135. So if one of our Clergy be created a Biſhop Suffragan of Eng-
fragan.
land, not any (as I conceive) of the Preferments he had before, do be-
come void ; but on the other Hand, if he exerciſe the Office of a Suffra-
gan by Commiſſion, he is thereby qualified to hold at one Time two
Bencfices with Cure. Stat, 26 H. 8. c. 14. However, his Benefices with
Cure, taken after he is a Suffragan, may (unleſs Diſpenſation prevent)
void any Dignity he had before.
Exception to This Rule, That all Benefices become void, when the Incumbent of'em
the Rule of is made a Biſhop, admits of an Exception: For by Diſpenſation of Re-
being madea tainer, a Biſhop may retain ſomc, or all of thoſe Preferments he was en-
Biſhop
3
titled
ferments
ſecration,
Law.
.
1
Chap. III. The Complete Incumbent.
29
0116, Eric.
on before
Confecrati-
on.
20.
titled to before he was Biſhop. i H. 4. f. 60, 170, 21 13, 229. Biſhop of lieſiunatis
St. David's Caſe.41 E. 3. 5.27 H. 8.15.b. Hill. 39 El. B. R. Armiger
and Holland's Cafe. Roll's Abr. 2. p. 359. Mich. 6 and 7 El. Dyer 233.
Paſch. 9 Jac. King v. Horsfall & Wale. Davis 68. Mich. 22 Jac.
Woodly v. Biſhop of Exeter. 2 Croke 691. And a Difpenfation to hold
a Benefice in England with a Biſhoprick in Ireland, under the Great Benefice in
Seal of England only, is good, becauſe Ireland is ſubordinate to Eng- England, and
land, and governed by the ſame Law; for otherwiſe it ought to be un- in Ireland.
der the Great Seal of both Kingdoms. Trin. 3. Car. B. Ř. Evans og
Kiffin v. Askwith. Palmer 457. But without ſuch new Diſpenſation, his
former Diſpenſations, though one was to hold Benefices with Cure, an-
other to hold Dignities with them, will not ſerve his turn, as is held
by Hobart in Colt and Glover's Cafe. Hobart 157., Nor will his Dif, Diſpenſati-
penſation avail him any 'Thing, when of a Clerk he is made. Biſhop,
unleſs it be obtained before his Confecration. 11 H. 4. 38. b. 59. 78. b. on.
Biſhop of St. David's Cafe. Neither in the Caſe, of his being tranſla-
ted to another See, can he, by Vertue of ſuch Diſpenſation of Retainer,
hold thoſe Benefices he enjoyed with his firſt Biſhoprick, but muſt for
that Purpoſe fue out a new Diſpenſation Retinere, before he and the Tranſlation
King have conſented to the Election. However, before his Election to and new
ſuch other Biſhoprick be feconded by the Confirmation thereof, for Diſpenſati-
otherwiſe it will work nothing, as coming too late, in Evans and Kif-
fin's Cafe v. Aſcough, in Noy 93. and in Latch. p. 31, ( 233. and in
Jones 158. and in Palmer 476. Jenkins's Cafe 91. Cent. 6. Paſch.
19 Car. 2. C. B. Henry Edes v. Walter Biſhop of Oxford. Vaughan
A Diſpenſation Retinere former Benefices,may be made either forYears Diſpenſati-
or for the Life of the Biſhop; and therefore a Clerk having a Faculty on Retinere
from the Archbiſhop of Canterbury, to retain a Benefice he poſſeſſed for 3
Years after he ſhould be created Biſhop, and reſigning after his Creati-
on, it was held, That his Church was not void by his Creation, but
only by his Reſignation. Mich. 69 El. Dyer 233. And Hobart ſaid
in Colt and Glover's Cafe. Hobart 156.. That when the three Years
are paſt, the Benefice voids. And fo Vaughan in Henry Edes, and
Walter Biſhop of Oxford's Cafe. Vaughan 24. But it was held by
Hutton and Winch, That though a Diſpenſation of Retainer be made,
to retain a Church with a Biſhoprick but for ſix Years, yet the Com- penſation for
Upon Dir.
mendatory hath thereby Power to hold it during his Life. Mich. 22 Years, held
Jac. Woodly v. Manwaring. 2 Croke 629. And their Reaſon might Life.
be, becauſe the Diſpenſation for fix Years preventing his Confecration
from making his Church void, which is that only Act by which, in
Law, all former Acts are voided in this Cafe ; ſo that he remaining In-
cumbent of his Benefice at ſuch Time when he was complete Biſhop,
the Plenarty of ſuch Benefice would not, without ſome other Act after-
wards, as Keſignation, Tranſlation or Death, be determined.
If a Diſpenſation be Retinere Dignitatem Decanatus, it is good for Retinere Dige
the Deanery, and he is Dean both in Title and Fact, and may confirm nitatem Deca-
Leaſes, and do all other Acts as Dean: In Evans and Aſcough's Cafe,
in Latch. 233. and in Noy 14. and in Fones. 258. And if a Diſpenſa-
tion be made by the Words Retinre in Commendam, yet the Commen-
Retinere in
datory is thereby full Incumbent, and may plead as incumbent. Woodley's Commendam.
Caſe v. Manwaring. 2 Croke 691. and muſt fue and be fued by the
Name of Parſon or Vicar, as the Cafe requireth, by Hobart, in Colt and
Glover's Cafe. Hobart 163. And where ſuch a Difpenfation of Retainer
I
is
for Years,
for Life.
or
natus.
30
The Clergy-Man's Law: Or, Chap. IV.
tiefignati
ons, Soc.
is had, if the Patron (after the Biſhop is confecrated) doth preſent anc-
ther that is inſtituted and inducted, the Biſhop may have a Spoliation
Spoliation. in the Spiritual Court againſt this new Incumbent, becaufe by Diſpenſa-
tion his old Title remaineth, for that both claim by the fame
Patron. Henry Edes and Walter Biſhop of Oxford's Café. Vaughan
24.
CHAP. IV.
Of Reſignations, and Exchange of Benefices.
By what
Words.
muſt be abfo-
lute.
Xeidance.ba. A by Celfion, fo by Befignation, a Church is ſaid
to become void
by the a
may
be
voided by Reſignation, the Inſtrument of Reſignation muſt be duly
made; the Word Reſignare is not good; for Refignare is not in Law a
Term of Reſignation, but renunciare, cedere, dimittere, are the uſual
Terms. 12 and 13 El. Dyer 29. a. But if a Prebendary doth give,
grant, render, and confirm to the Ordinary, Totam Præbendam Juan
de C. ac omnia maneria, terras, tenemente, proficua, pole liones, ju-
ra, o hæreditamenta, quæcunque tamn Spiritualia quam Temporalia,
ac omnem & omnimodam plenam
& liberana facultatem, diſpoſitionem,
authoritatem & poteftatem di&ta Præbenda pertinentem, Spectantem,ap-
pendentem five Incumbentem, aut ut parcell”. &c. habend ( tenend to
him the faid Ordinary and his Succeſſors, in Fee; and after the Map
bendum doth ſay, Cui in hac parte ad omnem Juris effe&tum qui exir-
de ſequi poterit aut poteft ditta Prabende, ac omnia jura mihi ratione
ejuſdem qualitercunque acquiſita ut decet ſubjicio & ſubmitto, &c.
Theſe Words be ſufficient, and amount to a 'Reſignation, although
the more proper Words are not uſed. Mich. 12 and 13 El. Dyer
293.
Reſignation If a Reſignation be made to the Uſe of another Perſon; that is,
with Condition, That if one of two Perſons named, be not admitted
to the Benefice reſigned within fix Months, the Reſignation ſhall be
void, and of none Effect, ſuch Reſignation is abſolutely void; for every
Reſignation ought to be abſolute, Sponte, Pure Simpliciter. Mich.
33 & 34 El. Gayton's Cafe. Owen 12.
Upon Ex Two Perſons, by one Inſtrument in Writing, do agree to exchange
change of
their Benefices, which are both Spiritual, (for a Lay-Preferment, as an
Hoſpital, cannot be exchanged, or go for a Prebendary, or other
Spiritual Benefice. Roll's Abr. 1, 811.) and in order thereunto, reſign
them into the Hands of the Ordinary: Such Exchange being executed,
the Reſignations are good ; but though the one is inſtituted and induct-
ed into the other's Benefice, yet if the Exchange be not executed on
both Parts, the Clerk, on whoſe Part the Exchange was not executed,
may have his Benefice again. 45. E. 3. Fitz. Exchange 20. for in this
Caſe of Exchange, the Law doth annex this Condition to a Relignati-
on,
if it bc fully executed: But a collateral Condition may not be an-
nexed thereunto, no more than an Ordinary may admit upon Conditi-
on, or a Judgment be confeſſed upon Condition, which are Judicial
Acts. Gayton's Cafe. Owen 12. And ſo if two, upon ſuch Agree-
ment,
Penefices.
Muſt be exe.
cuted on
both Parts.
I
Chap. IV.
The Complete Incumbent.
31
Oi!, PE
vo.
Gift, may be made to the King; as of the Deanery of Wills. Mic.
ment, reſign, as aforeſaid, and the Patrons according to their Agrec- liefignaci-
ment prefent crofs de Novo, (as they muſt do, if the Exc!ange be exe-
cuted. Mich. 18 and 19 El. Grendon v. Biſhop of Lincoln. Plouden Prepentation
3 E. 3, C. 18.) and the one is admitted, inſtituted and inducted into croſs . No-
the other's Benefice; and the other is likewiſe inſtituted into his, but
the firſt dieth before he is inducted into his Benefice, although after å
Mandate niade by the Biſhop to the Archdeacon for his Induction (al-
though the Induction of the firſt was abſolute) yct becauſe it was di-
rected by the precedent Agreement, which ouglit to be executed on
both Parts in the Life-time of the Parties (which in this Caſe it was
not for want of Induction) the Exchange is void. 45 E. 3. Fitzherb.
Exchange 10. Hill
. 43 El. Lord Cromwell's Cafe. 2 Co. 74.6. The like
Void for
Law, if before the compleating of the Exchange by mutual Prefent- wapt of In-
ment, Inſtitution and Induction, the Reaſon of the Exchange fail; duction, tra
for Refpect muſt be had to the Reſignation and Proteftation of both
Incumbents: And therefore either Incunbent may return to his old
Benefice, in Priſtino Statul, upon his former Preſentments
. 45 E. 3
Fitz. Exchange io. Regiſter 306. B. Mich. 10. J.36. Colt & Glover vi
Biſhop of Coventry and Litchfield. Hobart 152. Owen 12.
That a Reſignation may take its Effect, it muſt not only be abfo- Reſignation
lute, but alſo made to a proper Perſon ; for though it may be made must be to a
before a Publick Notary, yet the Inſtrument muſt be direčted to him proper Per-
who hath Power to accept of the Reſignation, and the Notary is to
certify the fame to him, and when he hath accepted thereof, then,
and not till then, is the Church void by Reſignation ; and before fuch
Acceptance all Preſentations made of Benefices, as reſigned, are void.
Parch. 3.Jac. Fairchild v. Gayre. 2 Cro. 63. Smith v. Founes. Noy 147.
Mich. 5 Fac. Fane's Cafe. 2 Cro. 198,
That Ordinary who łath the Power of Inftitutioni, hath Power allo Who hatli
to accept of a Refignation made of the fame Church, to which he may accept of a
Inſtitute; and therefore the reſpective Biſhop, or other Perſon, who ei- Reſignation.
ther by Patent under him, or by Privilege or Prefcription, hath the
Power of Inſtitution, are the proper Perſons to whom a Reſignation
ought to be made. And yet a Refignation of a Deanery, in the King's
18
Deanery:
19 El. Grendon v. Bifhop of Lincoln, &c. Plouden 498. And ſome
hoid, that a Reſignation may be well made to the King; of a Prebend
that is no Donative. 12 e 13 El. Dyer 294. Pollard and Walron's
Cafe. Rolls Abr. 2. p. 358. But Harper and Weston, in the fanze Cafe
held, That a Reſignation of a Prebend ought to be made only to the Prebend.
Ordinary of the Diocele, and not to the King as Supreme Ordinary ;
becauſe the King is not bound to give Notice to the Patron (as the Or-
dinary is) of the Refignation; nor can the King make a Collation by Notice
himſelf, without preſenting to the Biſhop, notwithſtanding his Supre-
macy.
But if a Donative be to be reſigned, the Incumbent thereof is to make
Reſignation
his Reſignation to his Patron, and by his Acceptance thereof, the Do- of a Dona-
native is voided : And if there be two Founders or Patroris, it is fuffi- tive.
cient that it be made to one of them; if to one of them, and a Stran-
ger alfo, 'tis good, being void as to the Stranger only; eſpecially if both
confent thereto, and grant it de Novo; and ſuch Reſignation of the
Church only; doth extend to all the Poſſeſſions of the Donative: Paſch.
3 Jac. Fairchild and Gayre. Brownlow and Gouldsborough 201. and in
2 Cro.63. and in Yelverton 60: And generally every Perſon that re-
figns;
Coliationi
J
i
The Clergy-Man's Law: Or, Chap. IV.
32
tation,
voided by
Mefignatis figns, muſt reſign to his Superior; and therefore it is faid by Coke,
ons, buc.
That a Biſhop cannot reſign to the Dean and Chapter. Hill. 12 Jac.
Muft be to a B. R. Roll's i Rep. 137.
Superior.
So ſoon as the Acceptance is made, the Patron may preſent, if he
and Prešene pleafe, to the Benefice reſigned: But in the Caſe of a Donative, if the
Patron doth not preſent within ſix Months, yet the Donative will not
be lapſed, but the Ordinary may compel the Patron to fill the Church.
In other Cafes, where a Reſignation is made to the Biſhop, or other in-
ferior Ordinary that may accept it, the Lapſe doth not run as from the
Acceptance, but from the Time of Notice given by the Ordinary to the
Patron. Mic. 15 El. c. 3. Leonard 45. Mich. 15 á 16 El. Dyer 327.
Jenkin's Cafe. 28 Cent. 6. 18 H. 7. Keil. 49. B. 18 Eliz. Dyer 347.
Notice to be 12. 1 H. 7.9. b. Doctor and Student 116.5 E. 4. 3. b. Noy 65. And
given. if the Biſhop doth die that took the Reſignation before he gives No-
tice, yet the Guardian of the Spiritualities, cr if he neglect, the Suc-
ceffor Biſhop is bound to give Notice, before the Patron ſuffer by Lapſe,
if he neglect to preſent. 18 H. 7. Kelw. 49 b. So if the Temporalities
of the Biſhoprick in which a void Church is, be in the Hands of the
King, Notice of the Avoidance ought, de jure, to be given to the Pa-
tron, and the Guardians of the Spiritualities ought to give ſuch Notice,
and Lapſe cannot run without it, upon what Account foever the Avoi-
dance, of which Notice is to be given, did happen. 22 El. Dyer 369.
54.
will prove this, faith Roll's Abr. 2. p. 365.
After à Clerk hath taken Inſtitution, the Church is full againſt all
Plenarty by Men in the Caſe of a common Perſon, and ſuch Incumbent may
void
the Church again by Reſignation, before Induction: But where the In-
Refignation. ſtitution was upon the Preſentation of the King, or where the Right
of Patronage after the Inſtitution doth come to the King, the Church,
before Induction had, remaineth open to the King's Preſentment: And
therefore, if the King will preſent another, the Reſignation of the
Party inſtituted is not neceſſary. But if the Cafe be, that a Clerk is
inſtituted to a Church of the King's Gift, and doth not take Induction,
if the King will not preſent another, ſuch Clerk may and muſt reſign,
if he reſolve to Diſcharge himſelf of the Cure, and the Duties relating
charge him-
thereto : For by his Inſtitution the Church is full, as to the Cure of
Souls, againſt himſelf and all other Perſons, unleſs and until fuch Time
as the King ſhall uſe his Prerogative of making the Inſtitution void, (as
he
may do before Induction) by preſenting another: But until he doth
ſo preſent, the Inſtitution hath the fame Effects (as I conceive) in his
Caſe, which it hath in the Caſe of a common Perſon; and therefore
the King's Clerk that is only Inſtituted, if he be Non-reſident, or neg-
lecteth the Cure, is ſubject to the Puniſhment thereof.
If an Inſtrument under the Seal of the Biſhop be found by a Jury in
Evidence of their Verdict, upon which is indorſed, that the Reſignation was ac-
a Reſignati-
knowledged and accepted by the Biſhop, yet that there is no abſolute
finding that it was a Reſignation in Fact, as the Juries finding of an
Acquittance of the Debtee, is no good finding upon an iſſue of Plene
Adminiſtravit, but a Circumſtance and an Inducement to the Jury.
Stat. 31 El. Smith v. Founes. Noy 147.
Penalty of And Note, That if an Incumbent of any. Benefice, with Cure of
a corrupt
Reſignation
Souis, do od mall corruptly religii, oz erchange the ſame, 02 cozrupt-
ly take foz oj in refpex of the refirning ol erchanging of tye ſame,
change.
direkly ou indireäly, any Penfion, Sum of 930ney, Od other Benefit
corruptly, as well the Giver as the Taker fall lole double the Ualue
To Dir-
ſelf of the
Cure.
on.
c. 65. 8.
or Ex-
1
I
of
Chap. V.
33
The Complete Incumbent.
of the Sum fo given, taken o2 had; the one moiety thereof to be to Simony, &c
the Queen's Majeſty, her heirs and Succellos; and the other Noie-
ty to him or thein that will ſue for the ſame, by Caion of Debt, Bill
oz Information, in any of her majeſty's Courts of Record, in which
no Elloin, Protexion ou Wager of Law, 02 Privilege thall be adnit:
ted op allowed. But of this in its proper Place. See the following
Chapter
CHAP V.
Church void by Act of Law. Of Simony,
&c.
From Inca-
HE laſt Means by which a Church may be void, is by the Act date of the
Voidance by
TH
of the Law; for by that, in fome Cafes, a void Church, not- Law.
withſtanding Preſentation, Admiſſion, Inſtitution and Induction, re-
maineth void, in others a full Church doth become void. A Church,
notwithſtanding the aforeſaid After-Acts, may remain void, Firſt, from
the Incapacity of the Perſon preſented, 6c. And therefore, though in
pacity
former Time, if a meer Lay-man was Preſented, Inſtituted and Induct-
ed into a Benefice with Cure, this was not a meer Nullity, but he was
Parfon in Fact, until Deprivation came, tho' not de Jure. Mich. 12 ☺
13 El. Dyer 293. Bening field and Pickering's Cafe. 1 Anderſon 16. Stat
. 13 El.,
c. 12. 9, 3,4
Windſor's Cafe. 5 Co. 102. Coſtard and Wingate. Moor 606. Yet at this Day, 9, 18.
Jf a Lay-man, oz a Deacon, of the Age of Twenty three Years, ve Lay-man
pzelented and admitted into a Benefice with Cure of Souls ; ou if a pored
preſented,
ny Perſon be admitted to any Benefice with Cure, of oz above the See 1. An-
Talue of Thirty Pounds yearly in the King's Boks, unteſs he be derfon 62.
then a Batcheloz in Divinity, oz a Preacher lawfully allowed by ſome 3 Bulf
. 93.
Withop within this Realm, oz by one of the Univerüties of Cambridge
Od Oxford, their admiftion, Intitution and Induđion, and all Tole:
rations, Diſpenſations, Dualifications and Licences, to the contra-
ry, are ineerly void in Law, and of none Effeä.
Tho' the Patron may preſent again when he pleaſeth, without No-
given
tice of an Avoidance in the aforefaid Cafes, yet becauſe the ſaid Sta-
tute of 13 Eliz. makes only the Admiſſion, &c. void, and not the Pre-
fentation, leaving that in Force, it was adjudged in the Caſe of a Dea-
con, that no Lapſe ſhall incur upon any Deprivation, by reaſon of the
ſaid Incapacities, without Notice thereof given to the Patron. Trin. 18
Car. 1. Biſhop of Hereford and Okeley's Cafe. Parſon's Law c. 18. fol.
131. Marſh 119. and the like Law is, I ſuppoſe, in the other Cafes, for
the Reaſon is the ſame in them all : And before the ſaid Statute, when
a Lay-man was admitted and deprived at the Canon Law, Lapfe did
not run to the Ordinary, before Notice given thereof to the Patron.
Dyer 293. Parfon's Law.c. 17. fol. 121.
Notice to bo
.
K
Alfo
!
34 The Clergy-Man's Law: Or, Chap. V.
Contra&t.
Sec 12 Co.
IOI.
Stat.
31 Eliz.
Simony, c.
Alſo a Church, notwithſtanding Inſtitution and Induction had,
Simoniacal may be ſaid to remain void by the Act of the Law, in reſpect
of the Uncapacity of the Preſentee, by reaſon of ſome Simonia-
cal Contract" preceding the Preſentation to it, and upon
which
1 Inft. 120. the Prefentment is made: For it hath been enacted
That
Co 6. g. s.
if any perſon or perſons, Bodies Politick 02 Co2pozate, ſhall
O2 do at any Tinie, for any Sum of money, Reward, Gift, Profit
ol Benefit, direaly ou indirealy; od fo? Od by reaſon of any Pomiſe,
agreement, Glant, Bond, Covenant, oj other affurance of oj foz a-
ny Sum of money, Reward, Hift, Profit Ol Benefit whatſoever,
direäly ou indirealy, preſent or collate any perſon to any Benefice
with Cure of Souls, Dignity, Plebend, od Living Ecclefiaffical; 02
give oj beſtow the ſame foz od in reſpex of any ſuch corrupt Cauſe og
Conſideration; that then every ſuch Preſentation, Collation, Gift
and beſtowing, and every admiſſion, Intitution, Inveſture and 3in1-
duđion thereupon, fhall be utterly void, fruſtrate, and of none Effeät
in Law: and that it ſhall and may be lawful to and fou the Dueen's
Majeſty, her Heirs and Succellozs, to preſent, collate unto, or give
od beſtow every ſuch Benefice, Dignity, Prebend, and Living EC-
clefiaftical, for that one Time, od Turn only; and that all and
every perſon or Perſons, Bodies Politick and Corporate, that from
thencefuzth fhall give or take any ſuch Sum of money, Reward,
Gift or benefit, direäly ou indireály, od that ſhall take od make any
ſuch Promiſe, Ozant, Bond, Covenant, oj other aſurance, ſhall for-
feit and loſe the double Value of one Year's Pofit of every ſuch be-
nefice, Dignity, Prebend and Living Ecclefiaftical ; and the Perſon
ſo cozruptly taking, procuring, ſeeking or accepting any ſuch Benes
fice, Dignity, Prebend oy Living, thail thereupon, and from thence-
forth be adjudged a diſabled perſon in the Law to have od enjoy the
ſame Benefice, Dignity, Prebend, od Living Ecclefiaftical. Vide Poft.
Chap 6.
This Act hath given Being to many Book-caſes; ſome of which rc-
late to the Contract it felf, fome to the Puniſhment of the Patron,
How made. and others to the Puniſhment of the Clerk. As for the Contract, it
may be made Simoniacally as well before as after the Church is void:
For tho' it be lawful for any Perſon to buy the next Turn of a Church,
when it is full of an Incumbent, generally ſpeaking. Mich. 33 P. 34.
Eliz. Rot. 2122. yet ſuch Contracts, in ſeveral Cafes, have been held
not lawful: For if A. being feiſed of an Advowſon, doth grant the
next Preſentation to B. and B. doth make a Bond to pay him a Sum
of Money for it, when the Church ſhall fall void, this is Simony. And
ſo Juſtice Reede faid it had been adjudged in Pool's Caſe; for other-
wiſc, by this Means the Statute might be utterly defeated. Hill. 17
Car. March's Cafe 228. Parſon's Law, C. 18. fol. 136.
By & Leaſe
So if an Incumbent of a Church being upon the Deſign of exchanging
Tythes, foc.
his Benefice, to get his Patron's Conſent to promote another thereto,
doth promiſe, that the Clerk ſhall make a Leaſe of the Glebe or
Tythes to the Patron at a certain Rent; and the Clerk is preſented,
and doth make the Leaſe accordingly, altho' that he knew not of the
Contract, yet this is Simony. Hill. 15 7ac. C. B. Rot. 667. Grant and
Bowder's Caſe. If (a Church being full of a ſickly. Incumbent), a
Surrender by Clerk doth contract with a Stranger to procure the Grantees of the
of the
Grantccs.
next
(
Chap. V.
35
The Complete Incurnbeut.
cumbent:
next Avoidance to ſurrender to the Grantor, and to influence the Gran- Simonp,&c.
tor to preſent ſuch Clerk, when the Living Thall become void, and
this be done accordingly, this is Simony. Mich. 8 Fac. Penn's Cafe,
2 Brownlow and Glouldl. 7. So it is, if (a Church being full of an
old and ſickly Incumbent) a Clerk doth contract with the Patron, (for
a certain Sum of Money, payable when the Church ſhall become
void) to make a Grant of the next Avoidance to a Friend of his; and
the Friend having ſuch Grant, doth preſent the faid Clerk accordingly.
Paſch. 14 Jac. Winchcomb's Cafe, in Hobart 165, and in Noy 25. and
in Brownlow and Gouldsborough 164. Irin. 41 El. Smith y. Shelbour 17,
3 Cro. 685. And though the Perſon, to whom the Grant of the next
Turn is made in Truſt, ſhould not know of any procedent Agreement
between the Patron and the Clerk, yet if the Clerk be preſented, it
ſhall be intended that it was with reſpect to the Agreement, and that
he came to his Benefice by Simony. Clofs and Rumcoy's Caſe, in the Sickly In-
Caſe of Calvert v. Kitchin and Parkinſon, 7 Jac. Lane 37. And
Hutto1 ſaid, That we in Chancery have adjudged, that the Grant
of the next Avoidance for Money, when the Parfon was ſick in his Bed
ready to die, is Simony: For the Statute is, If the Contract be made
directly or indirectly, by any Way or Means. Pafch. 21 Jac. Sheldon
v. Bret. Winch. 63.
But if a Father (the Incumbent of a Church being ſick) doth pur- Aliter if by
chaſe the next Avoidance thereof in the Preſence of his Son, and with his son.
an Intent to preſent him, and doth preſent him, after the Death of the
Incumbent, it is not Simony; as was adjudged by three Juſtices, upon
this Reaſon, That the Father is bound by Nature, to provide for his
Son: And therefore, though the Son may not contract for a Benefice,
to the Intent that another ſhould preſent him; yet the Father may
contract, with an Intent to preſent his Son, and with his Privity; for
that it being no Offence in the Father, who was the Principal, it can-
not be any Offence in the Son, who was the Acceſſary: For there can-
not be a Particeps Criminis, where there was not any Crime commit-
ted. But Anderſon againſt the other three, That this Contract with Econtras
the Father, with an Intent to preſent his Son, being in Preſence, and
with the Son's Privity, made it Simony in him : But he granted, That
if the Father had bought the Benefice, with an Intent to preſent the
Son, if it was without the Privity and Confent of the Son, it had not
been Simony. 41 El. Smith & Shellbourn's Cafe. 3 Cro. 685. See Bow-
derock & Mackaller's Cafe. Cro. Car. 331. But this Caſe is otherwiſe
reported by Moor, p.916. who faith, That the Cafe was agreed clear- Son Privy to
ly to be Simony; and that if the Son had not been privy to the Bar-
the Bargain,
gain, all the Juſtices, but Anderſon, held, that it had not been Simony.
But they agreed, That if a Stranger buy the next Avoidance, and
preſents one that is not privy until after the Contract or Purchaſe
made, and when he is made privy, is preſented, this is Simony. Not
ſo where the Father doth buy, becauſe he is bound in Nature to pro-
vide for his Son. But by Hobart, if in the Grant of the next Avoidance
it appears, that it was to the Intent to preſent his Son, or his Kinſman, The Intent.
and it was done accordingly, it is Simony, in Winchcomb & Pulleſtor's preſent A.
Cafe. Mich. 15 Jac. Noy 25. And Parſon's Law, c. 18. fol. 134. ſays, by Name.
that it was adjudged in this Cafe, that if a Man purchaſe the next Pre-
fentation or Avoidance, or the next Avoidance or Preſentation be grant-
ed unto him to preſent A. by Name, be it the Son, Kinfman of the Pa-
tron, or of a Stranger, that the ſame is Simony, and thc Clerk preſenta
ed
ز
ز
36
The Clergy-Man's Laws: Or, Çhap. V.
Averment
of the In-
tent, opc.
If it be not
poſe it
a Father
fon ?
Words of
Simony,&c. cd comes in by Simony. And it was cited to be adjudged, that if a
Man purchaſe the next Avoidance of a Church, with an intent to pre-
font his Son, and afterwards doth preſent him, it is Simony within the
Statute. Pafch. 3 Car. Hughes 390. And Baron Srigg ſaid generally,
That if A. doth buy the next Avoidance, with an Intent to preſent B.
and the Church becoming void, A. doth preſent B. accordingly, this
is Simony. By Averment, and by good Pleading, the Preſentment of
B. Thall be void, in Kitchin and Calvert's Cafe. Hil. 8 Jac. in the
Exchequer. Lane 102. By. Reaſon of this Diverſity of Opinion, Quære:
But my Thoughts are, That ſeeing (whatever the Law is in other
Countries, where the Canoniſts have Cognizance of Advowſon) it
was before the Statute againſt Simony, and now is lawful with us, to
in
the Cale"of buy and ſell, bona fide, the next Avoidance of a full Church; I fup-
was, and is lawful, as well for all Subjects as for ſome : And
which is Si fuppoſing, that to buy the next Avoidance of a Church, when the
other Per-" Incumbent is ſick in his Bed, ready to die, is Simony in one Man, I
cannot but think that it is Simony in another, though it be the Father
of a Son capable thereof. And ſuppoſing that for a Stranger to pur-
chaſe the the next Avoidance in the preſence of his Friend, or only
with Intent to preſent his Friend, preſenting him accordingly, is un-
lawful ; I conceive, this is equally unlawful in a Father, with reſpect
to his Son: For if it be Simony to buy and fell in theſe Caſes, it is
Simony (at leait in the Temporal Court) by reaſon of the Statute, and
the Word indirectly therein; and it is moſt plain, that the Statute
doth not give any colour to ſuch Diſtinction: For the Words are,
If any perſon o2 Perſons, Bodies Politick od Corpojate, &c. And ſo
the Statute, are moſt general ; and where the Law doth not diſtinguiſh, we ought
not to diſtinguiſh. Neither is the Reaſon, That a Father is bound
by
Nature to provide for his Son, good to the aforeſaid purpoſe : For a
Man is bound by Nature alſo to provide for himſelf, and ſo might as
well purchaſe for himſelf: And if this Reaſon ſhould make that not
Allegation to be Simony in the Caſe of a Father, which is Simony in another
is bound by
Perſon, before the Church is void, it might as well do the ſame after
Nature, éc. the Church is void ; for the Father's Obligation continueth, he is ſtill
bound in Nature to provide for his Son; and it is no more Simony in a
Friend to buy, with reſpect to his Friend, when the Church is void,
than it is in the aforeſaid Cafes, before it is void (as it hath been held;)
and then, Why ſhould it be more Simony in the Father to buy, with
a reſpect to his Son, when the Church is void, than before it is yoid?
Unleſs the Reaſon, why he of all Men might buy before the Church
is actually void, was changed and gone, as it is not; and by the Sta-
tute there is nothing more of Simony in buying directly, than indi-
rectly; and therefore, if the ſaid Reaſon excute the Father before the
Church is-void, it may as well excuſe him after it is void, and by con-
fequence, it doth excuſe him in neither Cafe ; unleſs in the Judgment
of thoſe, that can be fo abſurd as to hold, That no Humane Law
ought to be made, or if made, ought to be expounded, to reſtrain this
Natural Liberty, or (as they may call it) Duty in the Father. How-
Caution to a ever, to avoid Queſtions of Law, 'tis beſt, that a Purchaſer of a next
Turn (whether he deſign it for Son, Kinſman or Stranger) doth make
the Contract, when the Incumbent of the Church is not in Danger of
Death ; that he doth not declare his Intentions to the Perſon to whom
he intends a Kindneſs, or whom he intendeth to preſent, that 'the in-
tended
2
31 Eliz. c. 6.
As to the
that a Father
Purchaſer,
3
I
12
Chap. V. The Complete Incumbent.
37
on of Mar-
upon the next Avoidance thereof: That is a Simoniacal Contract. But
tended Clerk be not preſent at the Contract; however, that he be not Simony,@mc.
named in the Deed, by which the Power of Preſentation or Nomination
is granted.
So if a Father, in Conſideration of a Clerk marrying his Daughter, Covenant
doth covenant with the Clerk's Father, that he will procure the Clerk upon Confi-
to be Preſented, Admitted, Inſtituted and Inducted into ſuch a Church, Marriage.
if the Father of the Clerk doth covenant, That his Son ſhall marry
the other's Daughter ; and the other, in Conſideration thereof, Cove-
nants to pay Money, upon which the Father of the Clerk Covenants,
to aſſure Land for a Jointure; and afterwards, the Father of the Wo-
man doth covenant, to procure the Clerk to be Preſented, Inſtituted
and Inducted into ſuch a Church : If this laſt Covenant be not in Con-
fideration of the former, nor depending thereupon, without ſpecial A- Averment.
verment, or ſhewing that it was a Simoniacal Contract, it ſhall not
be fo intended, and a Bond for Performance thereof, upon a general De-
murrer to the Condition, was adjudged good. 11 Car. Birt v. Manning,
Cro. Car. 425. So by the Reaſon of this Caſe, if one Promiſe to a
Clerk, that in Conſideration he will marry his Daughter, Kinſwoman, Promiſe in
Gc. that he will preſent him to ſuch a Living when void, or to the next Conſiderati-
Living, or next good Living that ſhall fall void within his Gift and
riage.
Diſpoſal, this is a Simoniacal Contract, for there can be no Difference
in Reaſon, as to making of a Contract Simoniacal, whether it be by
Covenant, or by bare Promiſe; or whether it be to be preſented to one
Church in certain, or to ſuch as ſhall next fall void; for when the
Church is become void, and the Clerk preſented to it purſuant to ſuch
an Agreement, 'tis then become as certain as if the Agreement had
been to preſent to that very Church ; and by Telverton, one preſented
to a Living, to the Intent that he ſhall marry the Patron's Daughter,
is Simony; which Richardſon denied, but upon what Reaſon the
Book tells us not. Mich. 4 Car. Steven's Caſe. Littleton, Rep.
177.
Simony may be committed, and yet neither the Patron or Incumbent Simony,
privy to it, or knowing of it. Mich. 9 Car. Bawderock v. Mackaller. where nei-
i Croke 331. So in a Writ of Error to reverſe a Judgment, whereby or Incum-
the King had recovered in a Quare Impedit, upon a Title of Simony bent privy.
(which was) That a Friend of the Parſon agreed to give ſo much Mo-
ney to F. S. (who was not the Parron) to procure the ſaid Parſon to
be preſented; who was preſented according to that Agreement: It was
aſſigned for Error, that it did not appear that either Patron or Parfon
were knowing of this Agreement. But per Cur. the Parſon is Simo-
niace Promotus. And it was then ſaid, "That Dr. Duxon had enjoy'd
the Church of St. Clements above twenty Years by ſuch a Title of the
King's, the Preſentee of the Patron being outed, by reaſon a Friend
had given Money unto a Page belonging to the Earl of Exeter, to en- Money to a
deavour to procure the Preſentation ; and neither the Earl nor the Page.
Parfon knew any Thing of it. Pafch. 19 Car. 2. B. R. the King and
Truſel. 1 Siderfin 329. the fame Cafe. 2 Keble 204.
As Simony may be committed when the Church is full, ſo more
Simony
eſpecially when the Church is become void, whether the Contract was when the
made with the Patron, his Wife, or a meer Stranger. Roll's 1 Rep. Church is
235. If a Stranger (the Church being void) doth contract with the
Patron for the void Turn, and the Patron for Money granting the
fame, the Stranger doth preſent. and after the Induction of the Incum- By'a Stran-
L
bent ger.
38 The Clergji Man's Law: Or, Chap. V.
By a Bro-
ther.
tor.
with the
Grantce.
Upon an
Simonp,&c. bent, doth acquaint him what he had done, and require Confideration
for it ; although the Grant of a void 'Turn, as being a Thing in A-
ction is void, and the Preſentee comes in, Quafi per Ufurpationen;
yet becauſe it is by Means of a Simoniacal Contract, as the Cauſe
thereof, (for otherwife it is to be intended that the true Patroli
would not have permitted that Prefentment) it was held, that it was
as well Simony, as if the Grant had not been void. Mich. 42 & 43 El.
Baker v. Rogers. 3 Croke 788. fame Cafe. Moor 91 4. So if the Bro-
ther giveth Money to the Patron to preſent his younger Brother being
then a Student in the Univerſity, the Church being then void, and the
Patron preſents accordingly; this is Simony. Pafch. 39 Eliz. Bufhe's
By a Tefta- Cafe : And fo it is in caſe that a Teſtator contract by Simoniacal Con-
tract, That his Executors ſhall preſent ſuch a Man by. Name, the
Church being then void, and the Teſtator dieth, and his Executors do
prefent the fame Perfon accordingly, this alſo was adjudged to be Si-
By a Father mony. Mich. 3 fac. Freeman and Engliſl's Cafe. Both theſe laſt
Cafes are cited, Parſon's Law, Co 18. fol. 134, 135. So if the Father
(the Church being void) contract for Money with the Grantee of the
void Turn, to permit the Grantor to preſent his Son, and the Grantor
at the Requeſt of the Father doth prefent accordingly, this is Simony.
Paſch. 17 Fac. Booth v. Potter. Cro. Car, 533. So it was found by
Special Verdict, that an Ufurpation had been made to a Church, and
a Qjare Impedit brought to remove the Incumbent, and pending the
Uſurpation.
Quare Impedit, the perpetual Advowfon was fold by the Plaintiff
, (ea
intentione) that 7. S. Clerk, ſhould be preſented after the Uſurper's
Clerk removed; and accordingly, after ſuch Removal, 7. S. was pre-
fented, admitted, inſtituted and inducted. This was held by the
Court to be Simony. Pafch. 35 Cor. 2. C. B. Anonymus. 2 Ventris
39. The like Caſe, if not the fame, is reported by Serjeant Leviniz,
that is, That's being Incumbent of a Church, and alſo Patron of the
Uſurpation Advowfon, mortgages the. Advowſon to H. and dies, whereby the
Church became void, and one D. by Uſurpation preſents to the ſame
Church, upon which the Mortgagee brings à Quare Empedit to remove
the Ufurper's Clerk; and pending that Quare Impedit, the Heir of the
Mortgagor brought a Bill in Chancery to redeem the Mortgage, and
Redeerped. it was decreed that he ſhould redeem, and that the Mortgagee ſhould
by the Heir.
permit him to proſecute the Qware Impedit, brought in his Name to
recover the Preſentation. Matters thus ſtanding, the Heir Enters into
Articles of Agreement with H. for the purchaſing of the Advowſon,
whereby the Heir coverfanted to convey the Adyowfon in Fee, and
that he would prefent fuch a Perfon to the preſent Avoidance when re-
overed, as the Purchaſor ſhould nominate ; and the Purchaſor cove-
mits Simony
nanted to pay the Purchafe-money at ſeveral 'Times, one whereof was,
when Judgment ſhall be given to the Plaintiff in the Quare Impedit;
and all this was found by Verdict, and to be to the Intent to prefent
one H. when the Avoidance was recovered by the Quare Impedit ;
the Avoidance was recovered, and H. preſented accordingly, and ad-
judged the Preſentation of H. in this Cafe was Simony. Paſch. 35 Car.
2. C. B. Walker v. Hammerfly. 3 Levinz 115.
Bord 'taken But if a Patron (the Church being void) doth take a Bond of a Clerk
by the Pa-
before he preſents him, to pay him ten Pounds yearly to the Son of
Bencfit of the laft Incumbent, ſo long as he ſhall be a Student in Cambridge un-
Wife, es preferred, no Simony is committed. So in the Earl of Sufix's Cafe,
vouched by Foſter, Julice: A Patron took Bond of his przfentee to
afrer a
Mortgage.
COV
Who com-
tron for the
3
pay
Chap. V.
39
The Complete Incumbent.
pay
five Pounds yearly to the Wife and Children of the laſt Incumbent; Simoup,
and yet, notwithſtanding great Oppoſition, the Clerk kept his Living.
Paſch. 2 Jac. Abigail Baker v. Mouniford. Noy 142. (Charitable Re-
ſolutions, if any ſuch were given ; but I much doubt whether they are
to be taken for Law.) Or if the Condition of an Obligation be, 'Íliat
à Clerk, after his Admiſsion, Inſtitution and Induction, to ſucli a
Church, ſhall at all Times after be ordinarily reſident, and ſerving the
Cure of the faid Benefice, without Abſence by eighty Days in one
Year, during the Time that he ſhall be Parſon of the faid Church ; this
is a good and lawful Condition, without any Averment taken, that it Averment.
was for ſome Simoniacal Purpoſe. Mich. 14 7ac. B. R. Caren v. Yeo.
Roll's 1. 417. See Brockhan's Cafe. 4 Car. Richardſon's Opinion. Litt.
Rep. f. 138.
ſo if a Patron takes Bond of his preſentee to reſign within three By Patron of
Months after Requeſt abſolutely (he being firſt inſtituted and induct- the Preſentee
to, reſign,
ed;) or if the Condition be, 'That whereas A. is within a ſhort Time
to be preſented, inſtituted and inducted to the Church of D. if A. after
his Admiſſion, Inſtitution and Induction thereto, at all Times, upon
the Requeſt of B. his Heirs, Executors or Adminiſtrators, ſhall reſign
the ſaid Rectory and Church to the Ordinary, or Guardian of the Spi-
ritualities for the Time being, by which B. his Heirs or Aſſigns, Pa-
trons of the ſaid Church, may preſent of new to the ſaid Church, diſ-
charged of all Charges and Incumbrances done or ſuffered by the faid
A. Theſe Conditions are not void as Simoniacal without Averment
that they were for Simoniacal Purpoſe, becauſe they may be upon Averment of
good and valuable Reaſons, without any Colour of Simony; as if simoniacal
he take a fecord Benefice, or be many Months Non-reſident, or that the Purpoſes..
Patron may preſent his Son, when capable of a Benefice. Trin. 8
Fac. Jones v. Lawrence, and Paſch. ig Jac. Lawrence v. Jories.
2 Cro. 274, 248. Hill. 5 Car. Babbington v. Wood, in i Cro. 180.
and in Hutton 110. and in Jones 220. Mich. 14 Car. B. R. Ca-
rey v. Yeo. Roll. 1.417. Mich. 43 B 44 El. Webb and Hargrave. Moor
.
644. And if the Clerk having given Bond to reſign, doth after take a-
way
his Bond, it ſeems that he refuſing to reſign according to the Con-
dition, may notwithſtanding be compelled in Chancery to reſign : For
Chancery.
in the Caſe of a Fellow of a College, the Court did diſplace him, and
decreed him to leave it. Pafch. 15 Car. Holme v. Wild. Tothill, p. 129.
But by Holt, Chief Juſtice, Mich. 8. W. 3. B. B. in the Caſe of Swaine
y. Carter, a Reſignation Bond conies as near Simony as can be, for 'tis
eaſy to ſecure a Round Sum by ſuch a Bond, buc. See Cumb. Rep.
394. Notwithſtanding which Opinion it has been generally held, That
ſuch Bonds are good and and binding in Law. See I Sid. 387. Ragm.
175. 3 Mod. 297. 3 Salk. 325, ớc. Yet the Chancery will reſtrain
the Patron, that he ſhall not make any ill Uſe of theſe Bonds of Re-
ſignation. Chancery Rep. 2 Part 399. And theſe Reſignation Bonds do Little Ir.cou-
not find any Incouragement in the Court of Chancery, eſpecially ſuch Reſignation-
of them as have only a Condition general to reſign within two Months, Ponds with-
or ſome other certain Time after Notice'; for upon ſuch a Bond I have out Special
obſerved the Court of Chancery will relicve the Incumbent, and will ed.
not oblige him to reſign, or to pay the Penalty of the Bond, unleſs
ſome ſpecial Cauſe be fhewed, and made out by the Patron, that he
is an unqualified Perſon to hold that Living, or guilty of ſome Immo-
ralities or Irregularities, as to make him worthy to be deprived, or at
leaſt that he is Non-reſident, and Negleets his Cure ; but if the Condi-
tion of ſuch Bonds be more Special, (viz.) to relign when A. the Pa-
tron's
Decrees in
40
The Clergy-Man's Law : Or, Chap. V.
the Incumi-
bent.
upon Re-
Simonr,sc tron's Son, Kinſman or Friend, becomes qualified to take that Living,
w fo that it appears to be taken in Proſpect and Favour of ſome Infant
deſigned to have that Living when he attains his Age, and becomes
Caution to qualified to hold it; in ſuch Caſe the Incumbent muſt reſign accord-
ing to the Condition of his Bond; or to pay the Penalty of it, elſe he
will not find
any
Favour or Protection in the Court of Chancery, but
will be left to Law; yet in that Caſe of particular Condition the Pa-
tron ſhall not carry the Bond, or make uſe of it further than is ex-
preſſed in the Condition ; for if it be to reſign when A. his Son, &c.
Þecomes qualified; if A: die, or is never qualified, he ſhall not compel
a Reſignation by it for any other Son, c. than he that's named in
the ſaid Condition. And laſtly, if it appear that any ill Uſe was in-
tended to be made of any Reſignation-Bond, the Court of Chancery
will relieve againſt it. When a Condition was to reſign upon Re-
queſt, and the plaintiff did aſſign for Breach, that the Defendant could
not be found to make a Requeſt to him, and therefore that he made
a Proclamation at the Church where he was born ; and another Pro-
clamation at ſeveral Markets within the fame County, by them,
Reſignation giving him Notice of his Requeſt; yet that this was not fuffi-
queft.
cient, as adjudged upon a Demurrer ; for that the Requeſt ought to
have been made to the Perſon himſelf. Mich. 8 Car. B. R. Gruit v.
Pinnel. Roll's Abr. 1. p. 443. The Judgments that to take and give
a Bond to reſign, is not Simony, have occaſioned many corrupt Pa-
trons to exact ſuch Bonds of their Clerks, only that they might thereby
make ſure (as they think) to themſelves, a Recompence for their Pre-
Corruption fentments. And ſome inconſiderate Clerks (that have given ſuch
and Clerks. Bonds) have been emboldened thereby to take the Cath againſt Simo-
ny, though they well underſtood the baſe Deſign of their Patrons and
themſelves in taking and giving ſuch Bonds, and intended to accom-
pliſh them afterwards, by ſubmitting to their Demands; to the utter
fruſtrating that moſt Religious Law againſt ſuch Corruptions; tho?
the Judğments in this Cafe were given for the Validity of ſuch
Bonds; only becauſe the Defendants demurred generally to them, and
Want of A- did not aver, that the Bonds were made to reſign, only to over-awe
the Clerks; by Fear of After-payments, or to let a Leaſe of the
Globe; Tythes, &c. For then (as was declared in the Caſes aforeſaid)
it had been Simony ; but otherwiſe it could not appear to the Court
to be ſo. It is alſo reported to have been ſaid by the Court upon Evi-
dence in Sir John Paſcall & Clark's Cafe. 15 Žac. Com. B. Rot. 2051,
Noy 22. That if a Patron doth preſent one to a Church, having ta-
ken an Obligation of the Preſentee, that he ſhall reſign at 3 Months
Warning, that it is Simony within the 31 El. And fuch Conſtruction,
upon a Preſumption, that theſe Bonds are taken and given upon a Si-
moniacal Deſign, when they are general, and do not contain ſome
good Reaſon, or ſuch Reaſon of them is not otherwiſe manifeſt, or
though they do, if it appear that they were taken upon a corrupt De-
ſign, by any After-practice, is but ſuitable to the Judges wonted Care
of preſerving ſuch like Religious Laws in their full and effectual Force:
But this Caſe of Paſcall being againſt the Reſolution of Jones and
Lawrence's Cafe, folemnly ſettled not many Years before, doth not,
as I have been told, paſs for any great Authority; and there have been
very many Rcfolutions agreeing with Jones and Lawrence's Cafe, ſince
that Time. Beſides, it appears not by the Roll cited, that there ever
was any Trial had, or Verdict or Judgment given in the Caſe; or
if
vormcnt.
3
Chap. V.
41
The Complete Incumbent.
How the
The Rea
teral to the
i
if there were any ſuch Trial and Saying, as is reported, yet it appears Simonr,&c
.
not by the Record, that ſuch Matter could any Ways tend to deter-
mine the Iſſue there taken. However our Ordinaries may diſcourage, Ordinaries
if not quite ſpoil, (and no doubt but their Juſtice and Prudence will may ſpoil
oblige them to it) this
Way of Trading, by not accepting of any Reſig- Trading .
nation made by the Conſtraint of ſuch Bonds. In regard (as hath
been ſhewed, Chap. 4.) a Reſignation (eſpecially of a Benefice with
Cure) cannot be made to void the ſame by the fole Act of the Incum-
bent, but the Ordinary muſt for that End alſo accept it, and declare
the Church void; and till then the Patron's new Prefentation will be
null: And the Reaſon of the Law in this Caſe, is partly becauſe the
Ordinary is to give Notice of a Reſignation to the Patron, that he may ſon.
prefent again ; and if he do not within fix Months after Notice, that
the Ordinary may provide for the Church; but more eſpecially, I fup-
poſe, becauſe the Biſhop having Cure of all Souls within his Dioceſe, is
to ſee that the Paſtors to whom he hath committed, and who have
undertaken the Cure, and in whom thereby the People have an Inte-
reſt, do not without a reaſonable Cauſe leave their Charge; that it be
not for Money, c. or to live a Lay-converſation, which he is not to
ſuffer.
If the Patron (or other Perſon) take Bond of his Preſentee or his Bond colla-
Friend, to pay Money upon the Account of a Preſentation made, it
Simony.
hath been held, that the Bond is not void, as being but. collateral to
the Simony, which eo Nomine is puniſhable only in the Eccleſiaſtical
Court in Sir William Bowyer's Cafe. Hill. 21 Jac. 2. Bulſtrode 182.
and in Winchcomb's Cafe v. Pulleſton. 15 Jac. Noy 25. Hill. 17 Eliz.
March, p. 156. 3 Inft. 153. For a Bond being fued, the Defendant
pleaded, That the Sum was agreed to be paid for the Reſignation of a
Church, to the Intent that another might be preſented; and ſhews
that Clerks, Patron, Obligor and Obligee, were Parties to the Agree-
ment, and the Bond was allowed good; becaufe Simony is not an Of-
fence againſt the common Law, nor any Contract or Bond made void
by the Statute, and that it is not averrable, that the Money was for
other Cauſe than the Obligation expreſſeth. Pafch. 40 Eliz. Oldbury
v. Gregory. Moor 564. Gregory v. Older. Noy 72. But Hobart holds,
in Jinchcomb's Caſe, Hobart 167. That ſuch Contracts are void be-
tween the Parties, and againſt Law, as being Contractus ex turpi Cau- Contractus es
ſa, and Contra bonos mores; like as if a Man be bound in an Obligati- turpi cauſa.
on uſurious, the Bond is void between the Parties ; and if paid by an
Executor, it is a Devaſtavit. And according to this, an Action being
brought upon an Alumpſit to pay Twenty Pounds upon Conſideration
of procuring a Clerk to be Preſented and Inſtituted to one of the King's
Donatives, (for to Donatives, and to all other Benefices even of the
King's Preſentment, the Statute againſt Simony doth extend.) Mich.
9 Car. Bowderock v. Mackaller. 1 Cro. 337, 353, 361. And Judgment
being given againſt the Defendant, a Writ of Error was brought in
B. R. where it was urged, that the Contract was good, and that it
had been ſo adjudged. Mich. 40 and 41 Eliz. C. B. where it was
pleaded, That an Obligation was made upon a Simoniacal Contract,
and ſhewed how that Bond was not void, becauſe Simony is but a Spi-
ritual Offence, and that in 8 Jac. between Taverner and Smith it was
adjudged to the fame Effect. But notwithſtanding theſe Precedents,
the Court, after two Adjournments, was of Opinion, That the Con- Conſiderati-
ſideration was illegal, being to perform a Simoniacal Contract. And ons illegal.
M
it
42
The Clergy-Man's Law: Or, Chap. V.
Forfeiture
Contra&ts.
31 El.
What is
Simony, &c. it being objected, that Simony was an Offence, whereof the common
Law takes not any Notice, or at leaſt did not before the Statute ; that
was denied. Mich. 9 Car. Hill. 9 Car. and Pafch. Jo Car. Mackaller
v. Todderick. Roll's Abr. 1. 18. See the Opinion of Noy in Sanderſon
and Warren's Cafe. 20 Jac. B. R. Palmer 293. Byrte and Manning.
Mich. 11 Car. B. R. i Cro. 425. And this I take to be the better, as
well as the latter Opinion.
As to the Puniſhment of the Patron, be he an Uſurper, or other cor-
by an Uſur-
rupt Contractor, he doth forfeit the double Value of the Benefice about
per, der
which the Contract is made ; and if he that preſents be the true Patron,
and not an Ufurper, in all Cafes where the Clerk lofeth the Benefice,
the King gaineth the Preſentment, viz. for the next Turn, that is,
the Clerk being actually preſented in Purfuance of the corrupt Con-
tract.
Sufferers by The Clerk, as well as the Patron, ſuffers by Simony; for if any
Si-
Simoniacal
moniacal Contract be made, by reaſon of which a Clerk is preſented
to a Church, though it be but by a Friend, and the Preſentee was
no Way Party or Privy to it, yet the Preſentation, Inſtitution and In-
duction of ſuch Preſentee, are abſolutely void by the Statute of
to all Perfons that are concerned, without Sentence Declaratory in the
Spiritual Court. Paf. 17 Jac. March.p. 84. becauſe though he be not
for Want of Privity Simoniacus, yet he is Simoniace Promotus. Trin.
8 Jac. Co. 12. f. 101. in Dr. Hutchiſon's Caſe, and by Co. Mich. 13
Fac. King v. Zaker. 3 Bulſtrode 88. Mich. 42. and 43 Eliz. Baker v.
Rogers. 3 Cro. 788. 3 Inft. 71. Paſch. 19 Car. 2. the King v. Truſell,
1 Siderfin 329. 2 Keble 204. before-mentioned: For being privy to,
chicfly ma-
or knowing of the Simony by the Clerk or Patron, is not material, but
only the corrupt Agreement; for by that Simony is committed, and the
Church made void; and the Notice is a difficult Matter to be proved ;
and if that were neceſſary, the Statute might eaſily be evaded by truſting
Friends in fuch Caſes to make the corrupt Agreement, and preſenting
before Notice of it. Mich.4 W. and M. G. B. Reve v. Epiſcopum Nor-
wich. Hide and Boughton. 3 Levinz 337. And this holds, not only
where the Perſon preſenting or collating hath Right to preſent or col-
late, but alſo to any Perſon or. Perſons, Bodies Politick or Corporate,
that do uſurp, as having no Title. 3 Inft.c. 71.f. 153. Firſt, they are
void as to the King, ſo that he may preſent another, without any De-
void againſt privation, or Removing of the Incumbent by Quare Impedit. Paſch.
17 Jac. Booth v. Potter. 2 Cro. $33. And they are void unto the
theOrdinary. Ordinary, ſo that he may admit the King's Preſentee. Mich. 4 Car.
Steven's Caſe. Littleton Rep. 165, 176. But not ſo as that he can,
without Notice firſt given of the Voidance, take Advantage of Lapſe, if
the Patron preſent not within fix Months from the Time ſuch Simonia-
cal Perſon was inſtituted and inducted; for this is exprefly provided for
31 El. c. 6. by the ſaid Statute. That no Title to confer og preſent by Lapſe,
thall accrew upon any avoidanice mentioned in this Aă, until Sir
Months next after Notice given of ſuch Avoidance, by the Drdinary
to the Patron. Which is to be intended of ſuch Voidances only by rea-
ſon of Simony, where the Preſentation is not given from the Patron to
the King: (that is) where the Perfon obtains his Orders, Admiſſion,
Inſtitution, Induction, &c. ſimoniacally; for no Lapfe can incur at all,
where the Right of Preſentation is in the King: So to ſuch Preſentee,
Advantage and to all that claim under him for his Inſtitution, will not be a Su-
to Pariſhio per-Inſtitution, and they are void unto the Pariſhioners; ſo that if ſuch
terial,
How ſuch
Contracts
0
Void unto
9.7
Notice.
ners.
4
4
&
Chap. V. The Complete Incumbent
43
Forfeiture
by the Per-
Promile, Wanit, Bond, uuenant, or other affuránce, &c. fhall fons
a Perfon ſue them for Tythes in the Eccleſiaſtical Court, or for treblo Simony,&fc.
Damages at common Law, they may plead him no Incumbent, be-
cauſe of the Simony, in Winchcomb and Pulleſton's Cafe. Hobart 168.
Penri's Cafe. 2 Brownlow and Gouldsborough 7. Mich. 40 Eliz. Com.
Banc. Risby v. Wentworth. 3. Cro. 642. Trin. 14 Car. 2. Knight v.
Dauncer. í Keble 312. And if that Plea, being duly made and
pro-
ved, be not allowed as a fufficient Bar to the Proceedings in the Ec-
cleſiaſtical Court, 'tis ſaid a Prohibition lieth. Mich. 15 Fac. Winch- Prohibition.
comb v. Pullefton. Noy. 25. and in Hobart 168. Mich. 8°Fac. Penn's
Cafe. 2 Brownlow and Gouldsborough 7. Trin. 8 Jac. Dr. Hutchin-
ſon's Cafe. 12 Co. 103. Becauſe if the King prefent, and his Preſentee
be received, the Pariſhioners muſt not pay Tythes to both; and to
whom he ſhall pay is at his Peril, But there is no Remedy againſt ſuch No Remedy
a Simoniacal Incumbent for the Tythes and Profits which he hath a-
for Tythes
received.
ctually received. per Hutton. Mich. 4 Car. Steven's Caſe. Littleton
Rep. 177. But though the Preſentation, Inſtitution and Induction be
void, as to all thefe, and to others that have Intereſt, yet they are not
void to an Ufurper : For a Man without Right cannot preſent unto a- Uſurpation.
ny ſuch Benefice, as to a Church void ; neither can the Ordinary excuſe
himfelf, if he receive the Clerk of an Uſurper, by pleading the Simo-
ny; for he is none of them that have Intereſt, faith Hobart, in his Ar-
gument in Winchcomb and Pulleſton's Cafe. Hob. 168.
If a Simoniacal Contract be made by a Clerk or other Perſon, al-
though the Patron doth after preſent the Clerk gratis, yet the Perſon ſon con-
contracting doth forfeit the double Value of the Church, as I con- trading.
ceive: For the Words of the Statute, 31 Eliz. are, Chat ail and eve- 31 El. c. 6.
ry perſon and Perſons, Bodies Politick and Cozpojate, that from s. s.
thencefo2th fall give oz take any ſuch Sum of money, Reward, Gift
02 Benefit direäly or indireály ; 02 that thall take ou make any ſuch
feit the double Talue of one Year's profit. Parſon's Counſellor, fol.
50.
And by the Opinion of Tanfield, Chief Baron, in his Argument of
Calvert and Kitchyn's Cafe, If a Clerk ſeeketh for Money to obtain a
Prefentation unto á void Church, although afterwards the Patron pre- Preſentation
Simony tho
ſent him gratis, yet his Simoniacal Attempt hath diſabled him to be gratis.
take that Benefice. Hughes 1816. and Parſon's Law, cap. 18. 135.
If Judgment be given againſt the Simoniſt, and he, by the Aſſent
Attachment.
of the Parties, being to continue a certain Time in the Benefice, will
not (the Time agreed upon being expired) remove, but commits Waſte
upon the Houſe or Glebe ; [Coke] faid, If this Stay had been by Rule
of Court, an Attachment ſhould have been granted againſt the Simo-
niſt for his Contempt: But when it is only by Affent of Parties, there is
no Ground for an Attachment; neither can a Vi laica removenda be had
in this Caſe, becauſe he is a Clergy-man ; but the Remedy is by Way venda
of Indictment of forcible Entry, or by an Ejectione firme ; for that
one may be indicted for a forcible Entry into a Church, is agreed. Ejeatment or
Hill.
14
and 15 Car. 2. the King v. Larking, &c. 1 Keble 438. I Si-
derfin 101. And to ſtop him in doing Waſte, a Prohibition may be had
by the Patron, Incumbent, or any other Perfon, becauſe that is the
King's Writ; and any one may pray a Prohibition for the King, and it
is grantable, Ex debito Juſticia, and not Honorary, and in the Diſcrc-
tion of the Court, Serjeant Moreton's Cafe. 1 Siderfin 65. Hob. 247.
But if ſuch Perfon be in Fact removed by a Vi lacia removenda,
(which is to remove-omneni vim laicam) and the Sheriff hath not only
there-
1
Vi laica renigde
Prohibition.
44
The Clergy-Man's Law: Or, Chap. V.
Where the
Clerk not
again.
Econtra,
Procure-
for
his Son.
Simony, Soc. thereby diſpoſſeſſed him, but (which is more than he is enabled to do
by the Writ) put another into Poſſeſſion, yet he ought not to be re-
ftored, neither hath he any Remedy, he being for ever diſabled by
reaſon of the Simony. King v. Zaker. 3 Bulſtrode, fol. 91, 92.
Though the Preſentation, Inſtitution and Induction of a Perſon, that
by any Ways or Means comes into a Church upon a Simoniacal Con-
be preſented tract, are meerly void; yet if the Clerk is not privy, or conſenting to
the Corruption, he ſhall not be diſabled from taking the ſame Benefice
at the Preſentment of the King, or of the Patron that firſt preſented
him, after the King's Turn is ferved, in Dr. Hutchinſor's Cafe. Mich.
8 Jac. 12. Co. 101. Hill. 8 Jac. Kitchen v. Calvert. Lane 73. 103.
Inft. 3. cap. 71. And yet where the Father (the Church being void)
dealt with the Patron to permit another to preſent his Son, and (as
was alledged) without the Privity of the Son, it was adjudged, that
the Son's Preſentation, Inſtitution and Induction were void, and that he
was a Perſon for ever after diſabled to accept of that Benefice. Mich.
13. Fac. the King v. Biſhop of Norwich. Cole, &c. 2 Cro. 385. Roll's 2.
Rep. 236, 237. 3 Bulſtrode 91. Paſch. 17 Jac. Booth v. Potter. 2 Cro.
533. I Inft. 120. a. But in this caſe, the Father did procure the
ment by & King's Preſentee to be deprived for ſome Crimes, and ten Days before
the Deprivation, procured a Grant of the next Avoidance to a Stran-
ger; and ten Days after the Avoidance by Deprivation, procured the
Stranger to preſent his Son the ſecond Time; upon which laſt Preſent-
ment, &c. this Action was brought, and the Judgment by all the Court
was, That his ſecond Preſentation was void, and that he was uncapa-
ble of the Benefice for ever. Sir Simon Degge, in his Parſon's Coun-
fellor, takes the firſt Opinion to be more rational than the latter, by
reaſon of the penning of the ſaid Statute; the Words of which are,
That the Perton to corruptly taking, procuring, ſeeking ou accepting,
Mall, &c. from thencefoxth be adjudged a diſabled Perſon in Law, to
have ou enjoy, &c. And though the Incumbent in this Caſe take and
Q.
accept the Benefice upon the corrupt Contract, yet as to him it is not
Forfeiture, if corruptly taken. Parſon's Counſellor, but Quære. However, it is
the Preſen- clear, that if the Preſentee be either Party, or privy to the Simoniacal
tee be Party
or Privy.
Contract, by reaſon of which he is preſented, he is for ever diſabled to
hold that Benefice for which the Contract was made, and doth forfeit
the double Value of one Year's Profit of every ſuch Benefice by the
Statute ; and the Forfeiture of the double Value of one Year's Profit
of the Church, is not to be accounted according to the Valuation in the
King's Books in the Firſt-Fruits Office, but according to the full and true
yearly Value of the Benefice, as the fame may be rented, which ſhall
be tried by Jury. Co. Inft. 3. c. 71, 154.
And though the King (to whom the Turn goeth) would preſent him
King or true before, or after he is convicted of the Simony, with a Non-obſtante the
not enable Simony, yet he cannot enjoy that Church, as being by the Statute ut-
the Simoniſt. terly diſabled during his Life. Trin. 4 Car. Hall v. Blundell
. Hetly
104. Yea, though the true Patron never preſented him, but only an
Uſurper. Pafch. 13 Jac. King v. Cole and Saker. 2 Cro. 385. And
the ſame Cafe. Roll's 2 Rep. 235. And though the King ſhould ſay,
that the Simoniſt ſhould ſtill continue in his Benefice he had gotten,
and thereupon he ſhould not be removed till Death; yet (by Coke,
Chief Juſtice) the King ſhall have the next Preſentation. Mich. 13
ac. King v. Saker. 3 Bulftrode 88. And though the King Grants à
Special Pardon to the Simoniſt of his Crinic, yet, as Hobart held, in
4
Winch comb
Where the
Chap. V.
45
The Complete Incumbent
I
moniacus and
Simioniace
mony.
TVinchcomb and Pulleſton's Cafe. Pafch. 14 Jac. Hobart 167. the Simonp,se
Church remaineth ſtill void to his Preſentation. The Reaſon of the The Rea-
Opinion is, that the King cannot enable him, whom an Act of Parlia- fon.
ment (as in this Cafe) hath diſabled. Saker's Cafe. 2 Cro. 386. Trin.
10 Jac. Dr. Hutchiſor's Cafe. 12 Co. 101. 1 Inft. 120. a.' For the
Law being abſolute and direct, cannot be diſpenſed withal by any
Grant or Non-obſtante, as it may be when a Thing is prohibited sub
modo, as upon a Penalty given to the King, or King and Informer.
Inſt. 120.6. 3 Inft. c. 71.And there is ever obſerved a Difference betwixt Difference
hiin, that is Simoniacus, and him that is Simoniace Promotus ; for between Si-
Simoniacus is he who makes the Contract or Promiſe for a Benefice, or
is conſenting and privy to it, and is diſabled to take the ſame ; and is promotes
.
therefore by the Canon Law to be deprived of any Benefice that he had
before: But Simoniace Promotus is he, on whoſe Behalf a Simoniacal
Contract or Promiſe is made by another, without his Privity or Conſent,
and he ſhall only be deprived of that Benefice to which he is corruptly
preferred. Paſch. 17 Jac. B. R. Lapthorn's Caſe. Booth v. Potter,
2 Roll's Abr. Kithin v. Calvert. Lane 103. Snow v. Philips. 1 Keble
781.
So if a Man be preferred to a Benefice by Simony, and afterwards General
comes a general Pardon, which finds him in Poffeffion; though ſuch Pardon af-
Pardon (Simony not being excepted) doth diſcharge the Puniſhment of ter the Si-
Simony, both as to the Patron and Incumbent, fo that the Forfeiture
of the double Value of the Benefice is not recoverable upon either ; yet
that will not enure to the Settling of him in that Benefice, which was
never full by Reaſon of the Simony. Trin. 41 Eliz. Smith v. Shel-
bour nr. 3 Cro. 685. and in Owen 87. Neither will Simony be pardon-
ed by the general Words of a Pardon (as all Things that the King can
or may
Pardon;) but there ought to be ſpecial and particular Words Special
to that Purpoſe. 15 Car. 2. C. B. Philip's Cafe. i Sid. 170. Mich.
16 Car. 2. B. R. Snow Leſſee of Crawly v. Philips. I Sid. 221, 222.
The fame Cafe. I Keble 780.
1 Keble 780. . It was reſolved in theſe Caſes, That
although Simony ſhould be included within the Words of a General
Pardon, yet that ſhould be only as to the Forfeitures, but not fo as to
enable the Perſon to hold his Benefice; and Burtor's Cafe in 6 Ca. 13.
that ſeems to be to the contrary, was denied for Law. Irin. 27 Car. Forfeitures
2. C. B. the King v. Turvil. 2 Modern Rep.52. And as to theſe pe-
cuniary Forfeitures by the aforeſaid Statute. 31 El. J. 8. Dne quiety
of them ſhall be to our Sovereign Vany the Dueeli, &c. alid the o:
ther Poiety to him cu tijem that will ſule foż the ſame, by Agion of
Debt, Bill, Plaint op Information, in any of her Majeſty's Courts
of Recold ; in which 110 Eloin, Potexion, Privileige ou Wager of
Law ſhall be admitted on allowed.
The Courts of Record to be here underſtood, are the Chancery, In what
King's-Bench, Common Pleas and the Exchequer, but not any inferior Courts of
Court of Record. Gregory's Cafe. 6 Co. 20. And the Privilege and
Protection herein mentioned, are to be taken from the common Protetti-
on and Privileges of Officers and Courts, but are not to be extended by
thoſe general Words, to the Privilege or Protection of Parliament, as
is obſerved by Parſon's Counſellor, 67. And this Act doth not only to what Be
extend to Benefices with Cure, but to Dignitics, Prebends, and all o- ncficis.
ther Eccleſiaſtical Livings. I Inft. 120. Ch. And there is a Saving of
the Ecclefiaftical Juriſdiction, as to thoſe Caſes, ciz. I. 9. That olis
Ni, oz any Thing herein contained, ſhall not iu any wiſe extend to
N
take
.
to whom.
46 The Clergy-Man's Law: Or, Chap. V.
Court a-
monift.
To which
ral Court
give Cre-
dence.
ز
Dimonp,&.c. take away, or reſtrain any Punifhment, Pain az Penalty limited,
päeſcribed op inſiãed by the Laws Ecclefiafticai, foz any the Dffences
before in this ad mentioned, but that the ſame ſhall remain in Force,
and may be put in due Erecution, as might before the making of this
Whar Pro- da; this aã, oz any Thing therein contained to the contrary thereof
ceedings in
the Spiritual
in any wiſe notwithtanding. And therefore the Eccleſiaſtical Court
may proceed againſt a Simoniſt, pro ſalute anime, and upon Examina-
gainſt a Si-
tion and Evidence deprive him for that Cauſe. Trin. 41 Elizó Smith
V. Shelbourn. 3 Cro. 685. though he was not. Privy to the Contract, be-
cauſe there be not any Accoſſaries in: Simony; and though he was pre-
ſented by an Ufurper, and the true Patron did recover the Advowſon
and Prefentation. Mich. 42 and 43 Eliz. Baker v. Rogers. Moor 914.
Yca, and though a General Pardon did follow the Simony, in which
Simony is not excepted, yet the Eccleſiaſtical Court may proceed to
Sentence Declaratory, that the Simoniſt was an Intruder,' and that his
Admiſſion, Inſtitution, &c. are utterly void, as if they had never been :
For though the Puniſhments of Simony are taken away by Pardon, yet
the Church remaineth void. 41 Eliz. Smith's Cafe. Owen 87.-3 Cro.
the Tempo-
ubi ſupra. And when the Spiritual Court hath ſo ſentenced the Simo-
ny, the Temporal Court ought to give Credence thereto, and ought
ought to
not to diſpute whether it be Error or not: For the 'Temporal Court
cannot take Cogniſance of their Proceedings, whether they be lawful
or not; which is the Reafon, that in the Temporal Court it ſufficeth
to plead a Sentence out of the Spiritual Court briefly, without ſhew-
ing the Manner thereof, and of their Proceedings. And though it was
faid, that in the Spiritual Court they ought not to have intermeddled
Freehold not to deveſt the Freehold, which is in the Incumbent after Induction.
True indeed, they would not alter the Freehold; but they by proceed-
ing, meddle only with the Manner of obtaining the Preſentment, which
by Conſequence only deveſteth the Freehold from the Simonift, by
the Diffolution of his Eſtate, when his Admiſſion and Inſtitution are
voided, and therefore may proceed. Mich. 42 and 43 Eliz. Baker v.
Rogers. 3 Cro. 789. Trin. 41 Eliz. Smith v. Shelbourn. 3 Cro. 686. Or
rather, the Church being made void by Act of Parliament, he who
pretends to be Incumbent thereof hath no Freehold therein, ſo depri-
ving of him, cannot be ſaid to deveſt any Freehold from him. Howe-
ver, it is beſt, that not any of the Articles to be examined upon, in this
Cafe, be ſuch as may exprefly draw the Right and 'Title of the Benefice
into queſtion, left Occaſion be taken from thence to bring a Prohibiti-
on. Hill
. 11 Jac. Sir William Bowyer v. High-Commiſſion Court. 2
Bulſtrode 182. And Warburton then ſaid, That if one be preſented by
Simony, and he who is preſented is Party, or Privy to the Simony, he
ſhall be deprived, and alſo diſabled to take any other Benefice; but if
Simony be- he be preſented by Simony between two Strangers, whereto he is not
privy, he is deprivable by reaſon of the Corruption, but not diſabled
Strangers.
to take any other; for fo (ſaid be) is the Rule of the Civil Law.
Mich. 42 and 43 Eliz. Baker v. Rogers. 3 Cro.7.89.
Voidance by
As by Corruption preceding a Preſentment, a Church may remain
void in Law, fo by. Reaſon of the Preſentment it ſelf; for in all Caſes
the Preſent where a void Preſentment is made to a void Church by one that hath
no Right, though Inſtitution and Induction follow thereupon ; or where
Collation (which is in effect Preſentation and Inſtitution) is made by
the Biſhop to the Church of another, before he hath 'Title by Lapſe
to collate, the Church doth remain void at all Times after the lix
4
Months
to be alter'd.
Caution.
1
tween two
Reaſon of
ment it fclf.
Chap. V.
.
The Complete Incumbent.
47
Preſentation
Months, to the Preſentation of the very Patron. For Inſtance: If a Woid Pies
Clerk (a Church of the Patronage of a common Perſon being void, and lentments.
not lapſed to the King) doth obtain a Preſentation from the King,
which declareth, That the Title doth belong to him, Ratione lapſus,
ſuch Preſentation is void, becauſe it ſuppoſeth a Right in the King, King decei-
when there was none, and was obtained by Mif-information, whereby ved in his
the King was deceived, who intended no Uſurpation or Wrong; and
therefore the King in ſuch Cafe, can be no Ufürper, but the Inſtituti-
on made by Reaſon of ſuch void Preſentment, ſhall be but as a Col-
lation of the Biſhop's, which makes no binding Plenarty againſt the
true Patron; fo that he may not only bring his Quare Impedit when
he will, but alfo preſent his Clerk feven Years after; and if the Biſhop
doth receive his Clerk, the other is out ipſo facto; yet till then he is
to all others a full Incumbent, and not in the Nature of a Curate
only, and may fuc for Tythes, and is capable of a Confirmation from
the King, (but Quare as to that) as the Book is. II H. 4. 7. And
therefore the Chief Juſtice Hobart was of Opinion, That if the
Patron brought a Quare' Impedit in this caſe, the Incumbent
Quare Impe-
muſt be named, or elſe he could not be removed ; and alſo, dit by the
that ſuch a Plenarty did bar the Lapſe of the Metropolitan and Patron.
the King. Hill. 17 Jac. Gawdy v. Biſhop of Canterbury, &c. Ho-
Though Inſtitution and Induction do follow upon a good Pre- Voidance
.
fentment, yet the Church may remain void in Law, by reaſon that through to be
fomething required to be done by the Preſentee, before Admiſſi- Preſentee.
on, was not performed. And therefore if a Preſentee be admitted to
à Benefice with Cure, unleſs he hath firſt ſubſcribed the Articles
of Religion agreed upon in the Year One thouſand five Hundred
and ſixty two, in the Preſence of the Ordinary, his Admiſſion,
Inſtitution and Induction are meerly void in Law, as if they ne-
ver were. Stat. 13 Eliz. C. 12. But becauſe the Prefentation is
not alſo made void, it ſeems by the Reaſon and Authority of
ſome Books, that Lapſe doth not run till after Notice given by Notice.
the Ordinary of ſuch Non-ſubſcription, as Trin. 17 Car. Č. B. the
Biſhop of Hereford and Okely's Cafe. March 119. Parſon's Law,
C. 18. Parſon's Counſellor, 76. i And. 62.
bart 302.
:
.
1
;
CHAP
48
The Clergy-Man's Law: Or, Chap. VI.
Woid ads
niillions by
Simony,
Eignc
31 Eliz.c.
Sedt. 6.
Againſt ta-
Esc.
642.
CH A P. VI.
Church void by taking Orders, Admiſion,
Inſtitution, &c. Simoniacally; or for not
ſubſcribing the Articles, &c. And of De-
privation, the Cauſes thereof, &c. and of
the Archbiſhops Power in Depriving Bi-
Mops.
I
T hath been ſhewed in ſeveral Inſtances in the former Chapter, that
notwithſtanding Preſentation, Admiſſion, Inſtitution and Induction
had, a Church by the Act of the Law may remain void; and there are
yet ſeveral other Caſes, whereby a Church, by the Act of the Law,
may become void: For it is enađed, by 31 El. c. 6. Chat if any Perſon, for
any Sum of money, Reward, Gift, Profit Ol Commodity whatſo:
king Monies ever, diređiy oq indire&ly (other than for uſual and lawful fees ;) 02
&c. for Ad-' for ol by reaſon of any Promiſe, agreement, Grant, Covenant,
million and Bond, oq other aſurance, of 02 foz any Sum of Money, Reward,
Indu&tion,
Gift, Profit oz Benefit whatſoever, direäly ou indireõly, admit, in
See Cro. Eliz. veft, inſtitute, intal, induż od place any Perſon in, oj to any Benefice
with Cure of Souls, Dignity, Puebend, od Other Living Eccleſia
Cro.fac. 385.
Cro: Car: 33o. ftical, that then every perſon to offending, thail fo feit and loſe the
double Ualue of one year's Profit of every ſuch Benefice, Dignity,
Prebend and Living Ecclefiaftical. And that thereupon, immediately
from and after the Inveſting, Inſtallation or Induđion thereof had,
the ſame Benefice, Dignity, Prebend, and Living Ecclefiaftical, wall
ve eftſoons merely void ; and that the Patron of Perſon to whom the
Advowſon, Gift, Preſentation of Collation, fall by Law appertain,
fhall and may by Uertue of this da, preſent ou collate unto, give and
diſpoſe of the ſame Benefice, Dignity, Prebend or Living Eccleſia-
ftical, in ſuch lout, to all 3ntents and purpoſes, as if the Party la
admitted, inſtituted, inſtalled, inveſted, induđed or placed, had been
or were naturally dead; and by the ſaid Stat. 31 El.c.6. Stet. 10. pars pefterior,
if a Clerk (o corruptly entring into the iniſtry, oj receiving Diders
entring Si- Simoniacally, doth at any Tiine within ſeven Vears after accept and
take a Bene. take any benefice, Living, or Promotion Ecclefiaftical, immediately
fice 7 Years from and after the Induđion, Inveſting or Juſtallation thereof, or
thereunto had, the ſame Benefice, Living and Promotion Ecclefiae
ftical, fhall be eftſoons merely void, and the Perſon to whom the
Right of pzelenting doth appertain, may preſent, 02 collate to, o2 be:
ftow the ſame, as if the Perſon induđed oz inſtalled were naturally dcad.
But Note, That the Living is not void in either Cafe, but from and
after the Inveſting, Inſtallation or Induction, and therefore, until af-
Vantage till
ter Induction, the Patron hath no Advantage: And though after the
Clerk is inducted or inſtalled, in the aforeſaid Caſes, the Patron may
prefent ; yet if he doth not, no Title to confer or preſent by Lapſe
deth accrue, but after fix Months next after Notice given of ſuch
Avoi-
If a Clerk
afrer.
Yet Patron
has no Ad-
after Indu-
&ion.
))
3
Chap. VI. The Complete Incumbent.
49
1
Avoidance by the Ordinary to the Patron, by the faid Stat. 31 El. C. 6. Eeclaratis
Seet.
7. and in Winchcomb and Pullefton's Caſe, 14 Jac. Hobart 167.001; 108
So by 14 Car. 2. C. 4. If any perſon or Perſons ve to be admitted to
any Deanery, Canonry or Prebend of any Cathedjal oz Collegiate Stat
. 14.
Church, oz to any Materſhip, peadſhip, Fellowſhip of o, in any Col Care 4
8
lege, Hall, Houſe of Learning 02 Hoſpital ; od to any ProfefToz's
Place, Reader's Place in either of the Univerlities, anis in any Col
lege elſewhere, oz to any Parlonage, Wicarage, Eccleſiaſtical Dignity
0 Promotion, Curate's Place, Leãure and School, publick od pri-
vate, and do not at or before his of their reſpeđive admition to be
Incumbent, ou have poffeßion thereof, ſubſcribe the Declaration of
acknowledgment, Ementioned in the faid Act, viz. fo much thereof Declaration
as now by Law is in Force, to be fubfcribed unto] ſuch his refpe&ive to be fub-
Deanery, tc. fhall be void, as if ſuch perſon ſo failing were naturally
dead. See the Declaration to be ſubſcribed at Chap. 15.
If the Admiſſion be to a Maſterſhip, Headſhip or Fellowſhip in any Before whom
College, Hall or Houſe of Learning, or to a Profeſſor's or Reader's to be made.
Place in any of the Univerſities, the Subſcription is to be made before
the Vice-Chancellor of the reſpective Univerſities for the Time being,
or his Deputy. And if the Admiſſion be to any of the other aforeſaid
Preferments, the Subſcription is to be made before the reſpective Arch-
biſhops, Biſhops, or Ordinary of the Dioceſe. And every ſuch Parſon,
Vicar, Curate and Lecturer, (after fuch Subſcription made) is to pro- Certificate
cure a Certificate under the Hand and Seal of the reſpective Archbi- to be read.
ſhop, Biſhop, or Ordinary of the Dioceſe (who are bound
upon
De-
mand to make and deliver the fame) and publickly and openly to read
the ſame, together with the Declaration or Acknowledgment before-
mentioned, upon fome Lord's-Day, within three Months then next
following, in his Pariſh-Church where he is to officiate, in the Prefence
of the Congregation there affembled, in the Time of Divine Service:
And every Perſon failing therein; doth loſe ſuch Parſonage, Vicarage or
Benefice, Curate's Place or Lecturer's Place reſpectively, and is utterly
diſabled, and ipfo facto deprived of the ſame; and ſuch Parſonage,
Vicarage or Benefice, Curate's Place or Lecturer's Place doth become
void, as if he was naturally dead.
allo every perſon, that Qall hereafter be preſented, oj called, Stat. 14 Car.
o2 put into any Ecclefiaftical Benefice 02 Promotion within this 2004: 9
Realm of England, Dominion of Wales, and Town of Berwick uponi Stat. for
Tweed, ſhall in the Church, Chapel or Place of publick Wo dip, be- reading the
longing to his ſaid Benefice or Promotion, within two onths liegt Evening
Morning and
after he ſhall be in the aãual Pofleſſion of the ſaid Eccleliaftical Bene: Prayers, coco
fice or Promotion, upon ſome Lojd's-Day, openly, publickly and ſo-
lemnly read the maining and Evening Prayers appointed to be read
by, and according to the Bwk of Common-Player; at the Times
thereby appointed; and after ſuch Reading thereof, Thall openly and
publickly, before the Congregation there afembled, declare his un-
feigned Aflent and Conſent to the uſe of all ſuch Things therein cons
tained and pueſcribed, aecording to the Fozni appointed : And that all
and every ſuch Perſon, who ſhall (without; come lawful Impediment,
to be allowed and apploved by the Didinary of the Place) negleã 03
refufe to do the ſame, within the Time aforeſaid; or (in caſe of ſuch
Jmpediment) within one month after ſuch Impediment removed,
thall, ipfo facto, be deprived of his ſaid Ecclefiaffical Benefices and
P201
Clauſe of the
read.
How far thic
without any
50 The Clergy-Man's Law: Or, Chap. VI.
Common Promotions; and that from thenceforth it ſhall and may be lawful ta
Dzayer not
alid fou all 19atrons and Donois of all and fingular the ſaid Erclefia.
tical Benefices and Promotions, oj any of them, (according to their
telpeäive Rights and Titles) to preſent oj collate to the Came, as
though the perſon of Perſons fo offending 02 negleding were
dead.
Ibid. 5. 16. But by Sex. 16. 'tis provided, That no Title to confer oz préſent by
Lapſe, ihail accrue by any avoidance ou Deprivation, ipſo facto, by
Uertue of this Statute, but after fit Ponths after Notice of ſuch
avoidance oy Deprivation, given by the Didinary to the Patron, oz
ſuch Sentence of Depuivation openly and publickly read in the Pa
ridChurch of the benefice, Parſonage, Uicarare, becoming void.
02 whereof the Incumbent vall be deprived by Wertue of this aa.
This a&, oz any Thing therein contained, ſhall not be prejudicial oz
hurtful unto the King's Profeffor of the Law within the Univerſity
of Oxford, for oz concerning the Prebend of Shipton, within the Caa
thedral Church of Sarum, united and annered unto the Place of the
faine King's Profeſor for the Time being, by the late King James of
Bleſſed Peinory.
This Clauſe of the Statute concerning the Reading of the Morning
Clauſe doth and Evening Prayers, and declaring an unfeigned Aſſent and Confent
cxtend.
to the famc, doth extend to meer Stipendary Prieſts, who come in
tron thall preſent, as if the Offender was dead; for where the Cafe
was, That the Dean of Lincoln demiſed the Rectory of M. to one
P. for three Lives, and the Leſſee covenanted to provide and find a ſuf-
ficient Miniſter or Prieſt to ſerve in the ſaid Church of M. to be allowed
of by the Dean and his Succeſſors; it was adjudged, that a Stipendary
Miniſter found by the Leſſee, purſuant to his Covenant, was to read
the Morning and Evening Prayers, and declare his Affent, according to the
Clauſe of this Statute; and for Want thereof, is to be taken as a Per-
ſon deprived, uncapable to recover any Thing for his ſerving there.
Mich. 33 Car. 2. C. B. Carver v. Pinkey. 3 Levinz 82.
Not reading Likewiſe every Perſon that is admitted to any Benefice with Cure,
the 39 Arti-
except that within two Months after his Induction, he doth publickly
Vid. Ib. Seit. read the Thirty nine Articles agreed upon in the Year 1562, in the
fame Church whercof he ſhall have Cure, in the Time of Common-
13 El. t. 12.
Prayer, with Declaration of his unfeigned Aſſent thereto, he ſhall be
upon every ſuch Default, ipfo fatto, immediately deprived. Stat. 13
Eliz. c. 12. The Declaration of unfeigned Afſent aforeſaid muſt be
Forfeits his abſolute, without Condition ; and therefore a Clerk having read the
Living Articles, and ſaid, I give my Conſent unto them, so far forth as they
agree with the Word of God; the Eccleſiaſtical Court was ſuffered to
proceed to a Deprivation of him, though he fued to ſtop Proceedings
there, by a Prohibition from the Temporal Court. Mich. 33
Eliz. Smith v. Clarke. 3 Cro. 252.
If the Articles be not read, as aforeſaid (though the Ordinary may
deprive for the Cauſe, by Judicial Proceedings) yet the Church, upon
ſuch Neglect, is abſolutely void at the End of two Months, as to the
Perſon inducted into it; nor will a General Pardon extend to a Reſtau-
ration of him, for that ſuch Pardons are generally to be extended only
to Offences and Contempts, for which a Perſon may be puniſhed by
Indictment; but in this caſe the Puniſhment is, to loſe his Living.
Trin. 41 Eliz. Baker v. Bret and Robinſon. 3 Cro. 690. Trin. 35 El.
Green's
cles.
17 ago Stat.
33 and
34.
Chap. VI. The Completë Incuinbent.
Sİ
1
Vide pofteri
Green's Cafe. 6 Co. 29. However, though it be void as to the Incum- 39 Articles
sent by his Neglect, ſo that the Patron may preſent again ; yet not ſo, not read.
as that he muſt of Neceſſity preſent to avoid a Lapſe : For it is enact- See 6 Co. 691
ed, by 13 El. c. 12. Sect. 8. Chat no Title to confer, o2 pzeſent by Dayer 377,
Lapſé, ſhall accrtie upon any Deprivation, ipfo fa&o, but after ac Notice to
months after Notice of ſuch Deprivation given by the Divinary to the Patron.
Patron. Trin. 17 Car. the Biſhop of Hereford and Okely, March,
Cale 196. Hill
. 2 2 and 23 Car. 2. Shnte v. Higden. Vaughan 129. 2
Fones 18. And though the Patron hath a perſonal and manifest Know-
Íedge that his Clerk hath not read the Articles, according to the Sta-
tute, as if he by Suit hath obtained a Declaratory Sentence of the
Avoidance for that Cauſe, yet he ſhall not be bound thereby to preſent
a void Lapfe, but may fafely expect the Ordinary's Intimation ; nor
doth the Intimation of another fatisfy the Law. Paſchi 22 El. Dyer
f. 369. Trin. 44 Eliz. Green's Cafe, 6 Co. 29. b. In like Manner, by voidance bý
26 11. c. 3. and 2, 3 Ed. 6. C. 20. jf any Sum of money being once not paying
due by any incumbent, of any Dignity, Benefice of Spiritual Pro: the King:
motiont, charged with the Payment of Tenths to the king, and rea:
fonably demanded and required, (any Cime after the Feaft of the
Nativity of our Lord, at their Diguities, Hoſpitals, Colleges,
Churches, Chanteries, ou Houſes, by the archbifhop 02 Withop, oz
ſuch as Hall be charged with the Colletion of any part of the ſaid
Penfion, oz by any othck their minitters, Servants ou Dficers, to
pay ſuch Portion of the ſaid Pention and yearly Rent, as they hall
ve tared and allellro) be not truly contented and paid unto ſuch arch:
biſhop 02 Biſhop, oy their miniſters and Dficers, and to ſuch other
Perſon or Perſons, or their minifters ol Servants as Mall have the
Charge of Colleâion thereof, every Year yearly, at the Time of Cuci)
Requeſt and Demand thereof; od elle within forty Days iicrt after
every ſuch Requeft, at the furtheft : Chen every Incumbent making
ſuch Default of Payments, after ſuch Default certified thereof into
the King's Erëhequer in Writing, tinder the Scals of any archbiſhop,
Bifhop, 02 of ſuch as be limited and charged to the Colleõiori of the
Penſion, by the Aă of 26 H. 8. c. 3. fail be adjudged, ipſo facto, depri-
ved of that only Dignity, Benefice or other Eccleliaftical Promotion,
by what name foever it be called, whereof (uch Certificate fhall ve
made, fo that ſuch Dignity, Benefice, oj other Céclefiaftical Pomo-
tion, whereof any Jincumbent makinig Cuch Default of Payment Mall
ve adjudged deprived, as is aforeſatd, ſhall be clearly wid and delki:
tute of an Jircumbent in Law, to all Intents and purpoſes, as if
ſlich Incitinbent, making much Default of Payment, were dead indced.
Compare Stat, 26 H. 8. c. 3. with Stat. 2 and 3 E.6. C. 20.
When a Biſhop doth certify as aforeſaid, any Perſon's Refuſal or Biſhops
Neglect, to pay his 'Tenths, his Certificate is not peremptory; becauſe Certificate
the Biſhop doth it only as an Officer, and not as a Judge, as in the
of Non-paya
Caſe of Baſtardy: And therefore the Party concerned in ſuch Certifi- be traverſedi
cate, may be admitted to his Traverſe of it, and the Default in not
paying, Mall be tried by Jury; and though the Biſhop hath certified
the Refuſal to be after Demand duly made, yet if the contrary be
found by Verdict, the Judges are to rely upon the Verdict, and not the
Certificate. That the Certificate may be good, there ought to be an
cxprefs Demand to pay the Tenths; and the Officer of every Biſhop Demamietin
that doth demand them; ought to be Authorized to receive them; Authotivý
,
wherefore a Demand made by an Apparitor is not good, and the Officer
cannot
ment, may
ز
52
The Clergy-Man's Law: Or, Chap. VI.
.'
not paid.
Place:
Cenths, &c. cannot appoint them to be paid to another Perſon as his Deputy, or at
any other Place than where the Incumbent is to pay them, viz. his
own Houſe, or Church ; or if a Member of a Cathedral, at his Stall in
the Quire, (for upon Non-payment, the Place of Demand muſt be cer-
tified) and that they were demanded in the Name, and by the Autho-
rity of the Biſhop: Mich. 29 and 30 El. the Queen'v. Blancher,
3 Cro. 80. the fame Cafe. Moor 915. Mich. 39 and 40. El. Reyner v.
Parker. Moor 541. Pafch. 22 El. Savile Caſe. 2. 1 Leonard 269.
And if the Tenths, after that they are demanded, and before the Time
limited by the Statute be expired, he paid by any Incumbent into the
Receipt of the Exchequer, and the Biſhop of the Dioceſe doth after cer-
Payment be- tify, that the Incumbent hath not paid his Tenths, this Certificate is
fore Certifi- not of any force. Pafch. 22 Eliz. the Biſhop of Coventry and Litch-
care made. field v. Beacon. Savile, Cafe 63. When any Avoidance is upon Certifi-
cate of Refufal, or Non-payment of Tenths, the Ordinary is not
bound to give Notice to the Patron of ſuch Avoidance, but the Patron
niuſt take Notice, and preſent at his Peril, within líx Months after
ſuch Certificate duly made. Pafch. 7 Eliz. Dyer, fol. 237. And fo it
is in all Caſes, where an Avoidance is made (as here) by Act of Para
liament, unleſs it be ſpecially provided thereby, that Lapſe ſhall not
run but from Time of the Notice.
Voidance by
The laſt Means by which a Church doth become void, by the Act
Deprivation of the Law, is, by the Deprivation of the Incumbent thereof, by Sen-
tence in the Ecclefiaftical Court, grounded upon fome Act or Defect; ;
there duly proved againſt fuch Party deprived. In all Cafes before-
mentioned, where a Church doth either remain, or become abſolutely
void, by the Act of the Law, as to the Pariſhioners, c. as well as the
Patron, yet if the Perſon inſtituted and inducted thereinto doth conti-
By Sentence nue therein afterwards as Incumbent, the Ordinary may examine the
of the Ordi- Matter, and declare the Church void, by Sentence in the Eccleſiaſtical
Dary. Court. And in Caſes where the Church is void by the Act of the Law,
notwithſtanding Inſtitution and Induction had, and Lapſe doth not
run, but from the Time of Notice from the Ordinary, the Ordinary
ought to proceed to a Judicial Enquiry, and to declare the Church
void by Sentence, before he may give Notice of ſuch Avoidance. But
by this Act of his, the Church is not properly void by the Deprivation,
but only hereby declared to be voided by the Law, before ſuch Sen-
tence came.. And therefore, a Church, properly ſpeaking, is void by
Deprivation, when it was only voidable before the Sentence, by rea-
ſon of ſome Defect or Crime, and by the Sentence is made actually
void. For Inſtance: If a meer Lay-man, or a Deacon, not being
Deacon ad- three and twenty Years of Age, be admitted to a Benefice with Cure,
mitted, with their Admiſſion, Inſtitution and Induction, (as before is ſhewed, c. 5.)
are meerly void in Law without Deprivation. Or if the Deacon ad-
mitted to a Benefice, be not admitted to Adminiſter the Sacraments
within a Year after his Induction, if he be not admitted before; that
Lay-man ad- is, ordained Prieſt. Stat. 13. C. 1 2. But if a Lay-man be only admit-
mitted to ted to a Sine-Cure; or if a Deacon being three and twenty Years of
Voidance by Age be admitted to any Benefice, whether with or without Cure, their
Deprivation, reſpective Benefices feem to be only voidable by Sentence of Deprivati-
on in the Court Chriſtian. And the Reaſon of the Difference is, be-
cauſe in the firſt Caſe, the Statute of 13 El. c. 13. doth not only Pro-
13 Bl. 6. 12.
hibit the Admiſſions of ſuch to Benefices with Cure, but alſo declares
the Admiſſions, Inſtitutions and Inductions of them, to be meerly void.
But
Lay.man or void.
Cure.
I
1;
Chap. VI.
53
The Complete Incumbent.
refuſed.
Forfciture
But in the latter Cafe, the Statute of 14 Car. 2. C.4. doth only make ſuch Dath, &c.
Perſons uncapable of being admitted to Benefices, upon pain to forfeit for
illeterate,
cvery
Offence the Sum of 100 l. but doth not make their Admiſſion void: gr.
And (as hath been ſhewed) a Lay-man might have been admitted to, and
enjoy a Sine-Cure, and a Deacon might have been admitted to any Be- by 14. Car. 2.
nefice; yea, and tho' a Lay-man, who, by Law, was ever uncapable of c. 4.
holding a Benefice with Cure, had been admitted to ſuch Benefice, yet
this, at the Canon and Common Law, had not been a meer Nullity,
before the Stat. 13 El. c. 12. but the Church was full of ſuch a
Lay-man to all Intents, notwithſtanding his Uncapacity, until ſuch
Time as it was voided by Sentence of Deprivation. Mich. 12 and 13
Eliz. Dyer 292. and by Anderſon, in Benefield and Pickering's Cafe.
Hil. 36 Eliz. B. R. Popham 37. However Quære, Whether, when an Q. If not
Act of Parliament doth make any Perſons uncapable of being admitted void without
to Ecclefiaftical Benefices, under a Penalty, it doth not alter the Cafe, Deprivation,
ſo as only by declaring them uncapable, all Admiſſions, &c. of them,
are void without Deprivation. But ſuppoſing that the Admiſſions and
Inſtitutions of ſuch Perſons, in the Cafes put, are good, yet the Ordina-
ry may void
them by Sentence Declaratory in the Eccleſiaſtical Court,
celfe ſuch diſabled Incumbents would hold their Benefices without Re-
medy, and a Perfon made uncapable of being admitted to a Benefice
by Act of Parliament, ſhould become capable of enjoying it by Inſtitu-
tion and Induction, by the ſole Favour of the Biſhop, and his Arch-
Deacon. The like Law ſeems to be, in caſe any Perſon hath perempto-
rily and obſtinately, refuſed to take the Oath of the King's Supremacy, Oath of Su-}
(being duly offered before his Admiſſion to any Dignity, Eccleſiaſtical premacy
Promotion, Office or Miniſtry) and ſhould notwithſtanding be admit-
ted; for ſuch Perfon ſo refuſing, is preſently to be adjudged a diſabled
Perſon in Law, to receive, take, or have the fame Promotion Spi-
ritual or Eccleſiaſtical. Stat. 1 El.c. 1. So if a Perſon utterly illiterate, lliterate
be duly preſented, inſtituted and inducted, he is an Incumbent de Facto; Perſon in-
becauſe he hath all Ceremonies to make him ſuch ; yet his Inability
is examinable, and his Church, for that Cauſe, voidable by Depriva-
tion, as Hobart holds, in the Caſe of Colt and Glover v. Biſhop of
Litchfield. Hobart 149. Alſo any. Incumbent may loſe his Church Deprivation
by Deprivation, by reaſon of fome Crimes; and for ſome Crimes, he for Crimes.
is, ipſo facto, deprivable ; for others, not till after Admonition firſt gi-
ven. If a Clerk be convicted of Homicide or Murder at Common Law Homicide,
he is, ipfo fatto, to be deprived of all his Eccleſiaſtical Benefices, by
the Eccleſiaſtical Law: But if there be a Fame only, that a Clerk is
guilty of the faid Crime, or if the Fact be notorious, yet the Eccle-
ſiaſtical Judge may not originally examine this Crime, to make a Man
criminous ; for neither Felony, nor any other Capital Crime, is exani-
nable in the Eccleſiaſtical Court. Hun's Cafe, Kelloway 181. no, not
for Purpofes that are determinable there, as is this Cauſe of Depriva-
tion : But the Eccleſiaſtical Judge muſt expect, till ſuch Time as the
Criminal hath been convicted in the Temporal Court, and hath had
his Clergy there: And then may he be convented and libelled againſt. Caution.
But there the Libel ought not to ſay, that he is an Homicide, or
guilty of Man-ſlaughter, &c. for elfe a Prohibition lieth : But only that
he was convicted of Homicide, &c. and ſo the Sentence of Deprivati-
on ought to be grounded only upon the Conviction in the Temporal
Court, without any further Examination of the Matter, by which the
Verdict there given is not to be impeached, but affirmed; and though
P.
the
ducted.
1
EPC.
ز
54
The Clergy-Man's Law: Or, Chap. VI.
fo2 Crimes.
18 El. Ca. 7.
for Benefit
2 Cro. 430.
Deprivation the Perfon convi&ted doth deſire, that he may be admitted to his De-
fence in the Spiritual Court, to prove his Innocenty againſt the Ver-
dict, yet that may
not be allowed him, becauſe this would be to Im-
peach in a Court improper a Sentence given in a proper Court. Hobart
121, 288. Seart's Cafe, and Trin. 15 Jac. the fame Cafe. 3 Cro.
430.
In the 'Time of Queen Elizabeth, an Act was made, Chat every
of Clergy. Perſon and perfons, which ſhall be admitted 02 allowed, to have the
Benedit or Duvilege, of bis, of their Clergy, thall not thereupon be
delivered to the Didinary, as hath been accuſtomed ; but after ſuch
Clergy allowed, and Burning in the hand, accouding to the Statute
in that behalf provided, thall fozthwith be enlarged and delivered out of
Prilon, by the Juſtices before whom luch Clergy call be granted, that
Taule notwithſtanding. Before this Statute the Law was, that if any
Clerk had prayed his Clergy, and was delivered to the Ordinary, he
was re-examined by twelve Spiritual Perſons, yet only de Credulitate;
and if he was acquitted, he ought not to be deprived; but now being
diſabled to make his purgation, he unavoidably falls under the Cen-
ſure; nor doth his being fet at large, and exempted from Purgation by
the Statute, diſaffirm the Judgment in the King's Court, which is the
only Ground of the faid Deprivation ; becauſe the Purgation before be-
ing only de Credulitate, did not diſaffirm it, though thereby he was
acquitted. Trin. 15 Fac. Searl's Cafe.
Cauſes of Note, There are many other Cauſes of Deprivation in the Ecclefia-
Deprivation. (tical Court, beſides thofe before-mentioned, and generally all Depri-
votions are by Reaſon either, ift of Incapacity, or adły for Matter of
Crime. Now for Matter of Crime, Deprivation is allowed of by the
Common and Statute Law of this Realm in the following Cafes,
ciz.
Adultery (See Incontinency infra) Vide 6 C0.13. Latch. 22. o poſt.
Atheifm, Blaſphemy, Baſtardy, Forgery, Perjury, or other Facts
mala in ſe after a Conviction in the Temporal Court. Dyer 293.
Common-Prayer, refuſing to Uſe it. i El. c. 2. is Deprivation, ipfo
facto, or not reading it within 2 Months after Induction, or preaching
in Derogation of it. 19 Car. 2. C. 4. Vide 5 Co. Cowdry's Cafe.
Articles of Religion, not reading them within two months after In-
duction, and a general Pardon does not reſtore, which extends only to
Offences for which Indictment lyes, but this is not puniſhable in that
Manner.
So not ſubſcribing them on taking a ſecond Living, makes the firſt
void without any Declaratory Sentence. Vide ante.
So wilfully maintaining any Doctrine againſt them; but here Notice
is néceſſary to be given to the Patron ; otherwiſe the Biſhop can't col-
late by Lapſe, as before is ſhewn. Vid. 13 El.c. 12. 6 Co. 23. 1 And:
136. Dyer 369.
Dilapidation by the Opinion of my my Lord Coke. 3 Inft. 204. is
a good Cauſe of Deprivation, but ſome think the Authorities he cites
in the Margin, do not prove it, viz. 29 E. 3. f. 16. Where 'tis true
there is not one Word to that Purpoſe, and 3 H. 4. f. 3. is only the O-
pinion of Serjeant Tiyrwhit; where Thirning Chief Juſtice is of Opini-
on, That if a Biſhop, Archdeacon, &c. committed Waſte in cutting
Wood which they had in Right of the Church, they were not puniſh-
able at common Law, and then Demands of the Bar how the Party
could be puniſhed in the Principal Cafe. Whereto Tyrwhit Anfwers,
i
)
3
he
Chap. VI. The Complete Incumbent.
55
t
and weal.
!
tence.
.
he fhall be depoſed as a Dilapidator of his Houſe, and Thyrning Re- Deputbatton
plies, Let that be as it will, (i. é. by common Law) yet by the Law .
of the Land he is not puniſhable. Notwithſtanding which I think that
clearly at common Law an Action of Waſte lay at common Law for
Dilapidations in Ecclefiaftical Houſes and Buildings, and that therein
the Place waſted was recoverable, which was Tantamount to a Depri-
vation, and this feen's clear, by 11 E. 2. 332 .41 E. 3. 23. 7 H. 6. 18. 10
H: 7.5,&c.
And in the 9 E. 4. fo. 34. "Tis held by Moile, Juſtice, That if a
Son give an Abbot, &c. lol. to pray for the Soul of his Father, and
he ſpends the Money, he ſhall not be deprived, becauſe he received the
Gift in jure proprio, (or in jure Perſona) but if he aliened, &c. any of
the Abbey Lands; he might be deprived, for thofe he had in jure Do-
mus. And it ſeems to me there is the like Reaſon for a Deprevation,
where Walte is done in Houfes or Lands held in jure Ecclefia. See
more of Dilapidations at the End of Chap. 39.
And of the fame Opinion was the late learned Biſhop of Worceſter
in his Treatiſe on the subject. fo. 61. Who there cites Saccar's Cafe in
Mo. 919. Where a Prohibition was granted againſt Dilapidations, cut-
ting 'Trees, or doing any Waſte on the Parfonage. Vide i Lev. 107.
1 šid. 152. 2 Bulf. 279. 3 Bull
: 158. And Quære if the old Statute, Ne
Rettore's profterriant arbores in Cæmiterio, &c. was any other than a
Declaration of the common Law. Vide c. 39.
One exconiniunicated for forty Days, is to be deprived.
So may one Incontinent. Hob: 293. Cro. El. 41.789. or one illiterate,
Hob. 149. But in theſe Caſes there niuſt be a Declaratory Sen-
So may a Lay-man, but there muſt be a Sentence, and Notice there-
of by the Ordinary to the Patron. 5 Co. 102,
5 Co. 102. i And. 16. Dyer,
293.
For Nonage under twenty three, the Patron muſt have Notice.
March. 119. Vide ante.
Ordinary Diſobedience to him. See 2 Cro. 37.
Plurality, This is void ipfo fatto by the Statute. 21 H. 8. as before
is ſhewn, and fo no need of a Sentence, and the Patron is to take No-
tice thereof. Vide ante, o Cro. Car. 357.
Sacraments noť adminiftring them in the Form preſcribed.
Surplice, not wearing it, &c.
Tenths, &c. when demanded at the Churches or Houſes of Clergy-
men by the Collector, and not paid in farty Days, &c. Vidé ante.
Simony, fee before, ch. 5. and Note this was a Cauſe of Deprivation
before. 31 El.c. 6.
If a Church be only voidable by Deprivation, and the Ecclefiaftical Appeal upon
Judge hath actually pronounced a Sentence of Deprivation againſt the
Deprivation.
Incumbent, yet if the Perſon deprived doth make his Appeal, the Church
is not actually void, ſo long as the Appéal dependeth; and if the Sen-
tence of Deprivation upon the Appeal be declared void, the Clerk is
perfect Incumbent, as before, without any new Inſtitution. Fitzherb.
Abr. 2 Ri. 2. Quare Impedit 143. 27 H. 7. Gard. 118. Trin. 7 Eliz.
Dyer, f. 240. fee Mich. 33 and 34. El. Gdytor's Cafe, Owen 12. Pack-
man's Cafe. 6 Co. 18.
Now as to Appeals in Eccleſiaſtical Cauſes, we may here obſerve Where Apa
from Authorities in the common Law. That ſuch Appeal does not lye Dye or not.
from a local Viſitor, or in any Cauſe of a Temporal Nature. See Dy-
er, 209. 13 Go. 70. Nor did it lye from the High Commiſſion Court
when
Sentence of
56
The Clergy-Man's Law : Or, Chap. VI.
fron the
ESC.
Note tho'
this A&t was
Depzivation when in Being; becauſe they themſelves were the King's Delegates, as
awo a preal, acting by an immicdiate Commiſſion from him : And there was no Re-
medy againſt their Sentences, but a new Commiſſion to others, granta-
ble by Vertue of the Royal Prerogative Independant on the Authority
given by the Stat. 25 H. 8. c. 19. or any other Statute. Vide Mo.
782. 4 Inſt
. 340.
And Note, 'tis commonly faid, There muſt be a Warrant under the
Sign Manual of the King, before the Lord Chancellor, or Lord Keeper,
can Iſſue out any Commiſſion of Delegates, notwithſtanding the ſaid Sta-
tute 25 H. 8. Which being entitled, An Act for the Submiſſion of
the Clergy, and Reſtraint of Appeals, (i. e. to Rome) has in Section the
fourth the following Words, touching Commiſſions of Delegates, c.
Stat. 25 H.8. and foz lack of Jutice at oz in any Courts of the archbičjops of this
Commiftions Realm, or in any the king's Dominions, it fhall be lawful to the Par.
of Delegates. ty grieved to appeal to the king's Majeſty, in the King's Court of
Appeals
Chancery, and that upon every ſuch appeal a Conimillion thall be direct:
Archbiſhop, ed under the great Seal to ſuch Perſons as Mall be named by the King's
Highneſs, pis Heirs od Succellons, like as in Cales of Appeal from the
admiral's Court, to hear, and definitively determine ſuch appeals, and
the Cauſes concerning the ſame. Which Commitlioners ſo by the King's
Highneſs, yis Heils and Succellozs to be named op appointed, fall
Repealed by
Q. Mary, it have full power and authority, to hear and determine every ſuch áppeal
was revived with the Caules and all Circumftances concerning the ſame: And that
by Q. Eliz. ſuch judgment and Bentence as the ſaid Commiſioners thall make, and
Decree in and upon any ſuch appeal, fhall be good and effe&ual, and al-
ſo Definitive . and no further appeals to be bad og made from the Caid
Commiſſioners for the ſame.
The Reformatio Legum,ſpeaking of Appeals to the King, adds, Q110
cum fuerit cauſa dezoluta, eam vel Concilio Provinciali Definire volu-
mus,fi gravis fit cauſa, vel a tribus quatuorre a Nobis ad id conſtituen-
dis. But as that Book was never eſtabliſhed by any legal Authority, ſo
Vide 4 Infin the Practice has been all along to have Lay Judges joyn'd in the Com-
irfra.
miſſion with Eccleſiaſticks contrary to the Rule laid down in that Book;
Though a Right Reverend Prelate, has lately aſſerted it to be but of
Vide Biſhop Modern Practice, viz. only from the Year 1639. a grofs Error.
For thoſe Commiſſions being founded on the ſaid Statute, are hereby
to be directed to ſuch Perſons as ſhall be named by the King, general-
ly, whereby he is no way reſtrained from nominating Lay Perſons, and
in the following Words are, like as in Tales of Appeal from the domic
ralty Court; From whence I believe no Inſtance can be found of a
Commiſſion of Appeal granted to Eccleſiaſtical Perſons ſince the Reign
of Rich. 2. who, I find, commiſſioned an Archbiſhop, and a Biſhop,
int' al to be Admirals of his Navy. Vide Matt. Paris, Matt. Weſtm.
R. Hovedon, 7. Brompton, &c. fub Anno 1190.
Beſides how far the Eccleſiaſtical Perſons only ought to be entruſted
to Judge on Appeals from Eccleſiaſtical Juriſdictions, may be worthy
of Conſideration. And Note, 3 & 4 El. Cauſes. Dyer 209. 4 Inft. 340.
Lit. R. 232. Temporal Delegates were appointed Judges Eccleſiaſtical.
"Tis true, they are commonly called Commillions of Delegates,
according to the Language of the Canon and Civil Law, but that De-
nomination can ſurely derive no Right of Juriſdiction to Eccleſiaſtical
Judges only; for then the Temporal Judges muſt be excluded from
all Cognizance of Conceſſions, Donations, Alienations, Diſpenſations,
Promiſes, Compacts, &c. and no Executor, Adminiſtrator, Truſtee,
339. 340, arc.
Gibſon's Codex
1082.
;
ز
3
Pa-
Chap. VI,
57
The Complete Incumbent.
Patron, Clerk (to an Attorney,) c. could fue or be ſucd at com non- Deprivation
and appeal.
Law.
But the Reaſon of the Term Delegates, as commonly applyed to
fignify thoſe Appeals, was for that ſuch like Commiſſions of Appeal
having been long before the ſaid Statute 25 H. 8. put in Uſe; they
were uſually drawn up, and penned by the ſix Clerks in Chancery,
who were Civilians and Canoniſts, or by the Chancellor himſelf, who
was uſually a Biſhop; They in forming and penning the ſame, intro-
duced ſuch Words and Sentences as were peculiar to their Profeffi-
on.
poron
does not a-
See 2 Lev. 6.
S.C.
And as from hence it is, That the Court of Chancery is rather
guided by Rules taken from the Civil, than by thoſe of the Common
Law, we may well ſuppoſe the Reaſon why the Commiſſioners cal-
led Delegates, do on Appeals proceed according to the Rules of Civil or
Canon Law, (thoſe two Laws being in Effect the ſame as to Forms of
Proceedings) and yet by Moor 463. it ſeems agreed per Cur. That
if the Commiſſioners do not proceed in their Examination according to
the common Law, they ſhall be prohibited. And on that Account it
is, That a Suit, once commenced before the Delegates, ſhall not a-
bate by the Death of Parties as it ſhall at common Law, as appears
by the Caſe of Pollexfen v. Pollexfen. Pal. 23. B. R. which in i
Vent. 133. is reported thus.
H.P. dyed inteſtate, and A.P. his Brother, gets Letters of Admi- Death of the
Appellant
niſtration in the inferior Dioceſe, and one who pretended to be H. P.'s
Widow, furmiſing Bona Notabilia procured Adminiſtration from the bare the Af-
Prerogative Court. A. P. Appeals to the Delegates and dyes, and H.P. peale
Son and Heir of A. comes in and gets the Admiſtration (by the Prero- Ego 2 Keb.
gative Court) repealed, and has Letters thereof granted to himſelf; on 768, 778.
this the Wife prays a Prohibition, ſuppoſing the Delegates could not
proceed after A. P.'s Death, and that their Commiſſion was thereby
determined, for their Authority is by that, to proceed in a Cauſe be-
tween ſuch Parties, one whereof is now Dead.
But 'twas anſwered, That the Commiſſion is to hear and determine
the Cauſe, and both in the Civil and Eccleſiaſtical Law, the Suit ſhall
continue after the Death of either Party, for thoſe which ſhall be con-
cerned as appears by the Biſhop of Carliſle's Cafe. 2 Cro. 483. I Leon.
3 Co.6532
117, 178. And 'tis ſaid if one Party dies ante Litis Conteſtationen, 679.
it ſhall abate, but if after 'tis otherwiſe, and that Numbers of Prece-
dents of this Nature are both in the Arches and Admiralty Courts; and
'twas alſo obſerved, 'That in this very Cafe. H.P. having obtained Ad-
miniſtration to his Uncle A. P. in the Country, the now Plaintiff got
it ſet aſide by the Delegates on a full Debate, becauſe granted while
an Appeal was depending, who would yet now ſuggeſt that the Appeal
was determined by the ſaid A.'s Death.
Per Cur. No Prohibition is to be granted, and the Delegates Autho- Prohibition
denyed.
rity to proceed in that Cafe, continued notwithſtanding A.P.'s Death.
For by the Commiſſion they are to proceed in cauſa Adminiſtrationis,
&c. una cum ſuis incidentibus vel annexis qualitercunque, &c. ſum-
marie ( juxta juris exigentiam. So that (ſays the Book) the Eccle- Nute.
fiaftical Law is appointed to be their Rule, by which a Suit doth not
abate by the Death of the Parties, (120 wonder then the Common Latu
Rules are not obſerved in their Proceedings.) And Hale further ob-
ſerves, That the Appeal is to the King in Chancery, and is by Reaſon
of his original Jurifdiion, and thereupon he grants a Commiſſion to
Q
Hetl. 107
hear
58
The Clergy-Man's Law: Or, Chap. VI.
:
ز
Note.
Cant' grant
tions,
Prohibitions
granted.
view.
Deprivation hear it; Now if the King could hear it in Perſon, none could object
allo appeal.
but he might determine the Cauſe after the Partics Death, and by the
fame Reaſon they may, to whom he has delegated his Authori!y;
(Which no Doubt may well enable Temporal Judges to proceed accord-
ing to the Rules of Eccleſiaſtical Laws.)
Now tho' by the foregoing Cafe it appears the Court of Delegates
Adminiſtra-
may revoke or confirm Letters of Adminiſtration, yet it ſtill remains a
Quere, Whether they may grant Adminiſtrations originally, and in the
firſt Inſtance, This was indeed a Point ſtated in the Caſe of Stevenſon,
and Wood. 10 Jac. 1. the better Opinion was, That they could not
grant Letters of Adminiſtration. See the Caſe of Reve and Denny.
Paſch. 1. Car. 1. Latch. 85, 80.
And Note, If they exceed their Authority, or proceed in Matters not
properly within theit Conuzance, a Prohibition will lye to his Court,
whereof there are many Inſtances. Vide Mo. 460, 463. Latch 85, 86.
229.
4 Inft. 341.
Note alſo, Though the Stat. ſupra ſays the Commiſſioners Sentence,
Commiſſion. &c. ſhall be definitive, yet the King after ſuch Sentence may grant a
Commiſſion of Review. 1. For that he is not reſtrained by the ſaid
Statute, and 2. For that the Pope after a definitive Sentence by the
Canon Law, uſed to grant a Commiſſion ad revidendam, and ſuch Au-
thority as the Pope had claiming as Suprean Head, doth of Right be-
long to the Crown, and is annext thereto by the Stutute of 26 #1. 8. C.
1. and i El. c. 1. (fo fays my Lord Coke, and the Biſhop from him.)
But tho' the Poſition be true, That the King may do fo, yet I take it
this laſt Reaſon wants Reaſon for its ſupport. Vide Mo. 463.
Trin. 39 El.
But that the Law is fo, is clear from many Authorities, eſpecially
from Hollingworth's Cafe, there put by my L. Coke, where Sentence being
4 Inft. Ib.
given in an Ecclefiaftical Cauſe in the Country, the Party grieved accord-
ing to the Stat. Supra appealed to the Archbifhop, who affirmed the
firſt Sentence, whereupon by Virtue of the fame Statute, he appealed to
the Delegates, who by a Definitive Sentence repealed both the former
Sentences, and thereupon the Queen granted a Commiſſion ad revidena
dum; and thereupon a Prohibition was prayed, pretending fuch Com-
miſſion to be againſt Law, by Reaſon of thoſe Words in the Statute;
but on Mature Debate, the Prohibition was denyed, and the Court
reſolved that the Commiſſion of Review was lawfully granted, and two
other Precedents are there cited to the fame purpoſe. Vide Dyer 273.
Mo. 563.
Note alſo Milward's Cafe. 41 Eliz. is cited in Littletori's Rep. 232.
Where ſuch a Commiſſion was granted after Sentence by the Delegates
in a Cauſe of Matrimony, and divers Lay Judges were named Com-
miſſioners therein ; and 'tis there held by Judge Richardſon, That the
Word Definitive in the Language of either the Common or Canon
Law, does not exclude further Conſideration; and that the Words No
further Appeals to be pad, Gc. do not exclude a Review, by Virtue of
a new Commiſſion, (by the fame Authority.)
Note farther, by a Stat. 22, 23 Car. i. a Duty of 10 s. is laid on
every Appeal to the Delegates, and upon every other Appeal from any
Seät. 55, 56. inferior Eccleſiaſtical Court to a Superior 3 s. 4 d. and by 5, 6 W. M.
5,6 W. M. For every Skin of Parchment, or Sheet of Paper, on which any Appeal
9, 10W. 3.
from the Admiralty, Arches or Prerogative Courts of Cant. or York,
fall be written 40 so which by a ſubſequent Act, i. 8. 9, 10 W. is made
3
41. sed
B. R.
Lit. Rep.232
22, 23 Car.
Stat. 2. C.
25.
c. 21.
( 25
4
Chap. VI.
59
The Complete Incumbent.
*
and pard011.
Pardon the
41. Sed Quære, For the former Statute ſays, Appeals to the Delegates, Deprivation
&c. Yet the latter ſays, Appeals to all but the Delegates.
If the Appeal in the Cafes of Deprivation be to the King in Chance-
ry, and the Deprivation be affirmed by the King's Delegates ; or if the
Deprivation be immediately made by the Lord Chancellor or Keeper,
for that the Incumbent is viſitable immediately by the King, I con-
ceive, that no Appeal lies, and that the only Remedy that the Perſon
deprived hath, is to get a Commiſſion of Review, which is only gran- Commiſſion
table of Grace by the King, and not of Right, nor is there any Re- of Review.
medy at common Law, if the Cauſe of the Deprivation was Eccleſia-
ftical; for there the Sentence is binding, and not thereby examinable :
And therefore, if a Perſon be deprived by the Authority aforeſaid, and
another be inſtituted to his Benefice, the new Incumbent's Title ſtands
good, till it be reverſed upon the Commiſſion of Review: For this was
faid, in the Caſe of a Clerk deprived by the High Commiſſioners.
Trin. 4 Jac. Bird v. Smith. Moor 781.
If a Perſon be deprivable by Canon Law for ſome Offences, yet the Where the
King hath Power to Pardon the Offence, and his Pardon is ſufficient to King may
prevent a Deprivation, before the Crime doth Tranſire in rem Fudica-
Offence.
tain. 2 Car. Boſton's Cafe, Latch. 22 and is good againſt all Suits,
Pro Salute Animá, or Reformatione Moruin, and againſt all Suits, E.
Officio, whatever in the Eccleſiaſtical Court. Hall's Cafe. 5 Co. 51.
faving, that the King cannot Pardon, or Diſpenſe with a Diſability
made by Act of Parliament: And therefore, if a Deacon of the Age of Not of a
three and twenty Years be inſtituted and inducted into a Benefice with Diſability by
Cure, tho' he is Incumbent in Fact, till Deprivation comes, yet no liament.
Diſpenſation, or Pardon, from the King, can make him Incumbent
thereof de Jure, ſo as he ſhall not be ſubject to Deprivation : And that
not only becaufe a Perſon is diſabled by Act of Parliament, but alſo
when he is unable to ferve the Cure, or unqualified for it, the King
cannot difpenfe with him to hold the fame, and therefore not with a
meer Lay-man, or with a Perſon utterly illiterate; becauſe it is Ma-
bum in ſe, as Hobart faith, in Colt and Glover's Cafe v. Biſhop of Litch-
field. Mich. 10 Jac. Hobart 149.
As the King's Particular Pardon, fo a general Pardon, doth ſecure a GeneralPar-
Clerk deprivable againſt Deprivation ; and if a Crime be committed don.
before the Pardon comes, and the Sentence of Deprivation be given af-
ter, the Sentence is void. Hil
. 9 fac. Mortimer. v. Freeman, 1 Brown-
tow and Gouldsb. 90. and Latch 22. So if a Miniſter be deprived in
Time of Parliament for an Offence, and the Offence be afterwards par- A& of Par-
doned by an Act of the fame Parliament, the Deprivation is void, and liament.
the Party need not fue to have it reverſed by Sentence, becauſe the
Pardon relateth to the firſt Day of the Seſſion of Parliament, in which
it was made. Trin. 27 El. Fox's Cafe. 3 Cro. 41. 782. 2 Leonard
170, 172, 177. Palch. 2 Car: Boſton's Cafe. Latch 22. And in the
Cafe of one Burton, the Law is ſaid to be taken to be, That if a
Pardon by Parliament doth extend to the pardoning of the Crime, it
doth alſo extend to the Annulling of the Sentence given thereupon, tho*
as well the Sentence, as the Crime, had a Being before the Pardon,
which takes its Date from the firit Day of the Seſſion of that Parlia-
ment in which it is made in the Interpretation of Law : And therefore,
if a Crime bc committed this Year by a Clerk, and he be for the fam
deprived by Sentence in the next; and in the next Year after the Sen
tence a Parliament is called, and then an Ad made, which Pardons
all
60
The Clergy-Man's Law: Or, Chap. VI.
.
Depuidation all Crimes committed before the firſt Day of that Parliament, the
and Dardon. Crime for which the Clerk was deprived before the Pardon, or the
Parliament that made it was in Being, being pardoned by ſuch Pardon,
the deprived Clerk is Incumbent of his Church again, as before, by
Judgment in Law, and is not driven to have the Sentence of Depriva-
tion reverſed in the Eccleſiaſtical Court; no, not tho' another was in
the mean Time become Incumbent of his Church ; as the Caſe is. Hil.
29 Eliz. Burton's Cafe. 6 Co. 13. fee Davis's Cafe. Trin. 2 Car. Latch
Hard Cafe. « 141. But it fecms a ſtrange and hard Conſtruction, that a Pardon ex-
tending to diſcharge Crimes committed at any Time before the Par-
don, ſhould be conſtrued to take in ſuch Crimes, for which Sentences
of Deprivation were given, it may be, ſome Years before ; and to the
Settling of ſuch Criminals in their Benefices again, to the Outing of ho-
neft Men, that came legally to the fame: and which, it may be, left
other Livings, to take thoſe voided juſtly by Deprivation, or at leaſt
loft Opportunities thereby of being otherwiſe provided for. And this
Caſe of Burton, mentioned by my Lord Coke, hath been ſeveral Times
denied for Law, as it is ſaid by Juſtice Windham. Mich. 15 Car. 2. in
the Caſe of the King c. Wainwright and 7eofferies. 1 Siderfin 164.
beſides Coke refers us to find this Burton's Caſe in Dyer; but no ſuch
Cafe is to be found in the Printed Dyer ; but as I have heard, the Cafe
is in ſome manuſcript Reports of Dyer, but not as Coke gives it, but is
the
very fame Cafe, in effect, with Fox's Cafe, in 3 Cro. 41. mention-
ed before; (that is) Burton was ſentenced for Adultery, during a Sef-
fions of Parliament, and afterwards, in the fame Seſſions, there paſſed
a General Pardon, which related to the firſt Day of that Seſſions, ſo
over-reached the Sentence of Deprivation, and by Confequence made it
void. Vide Latch. Rep. 22.
In Windſor's Cafe. Pafch. 41 Eliz. 5. Co. 102. and in 3 Cro. 686. and
Cauſe of
in Moor 558. Paſch. 40. Eliz. Loveden v. Windſor, 'tis faid, that one
Deprivation
by Law
Parry was deprived in the Time of Queen Mary, becauſe married, and
a Favourer of the Religion in the Time of E. 6. and that another
thereupon was inſtituted and inducted into his Benefice, who therein
continued until the firſt of Elizabeth, when by the High-Commiſſion-
CIS,
the ſecond Incumbent was deprived, and the firſt Sentence againſt
Parry was repealed, and he reſtored to enjoy by Force of his firſt Pre-
ſentation, Inſtitution and Induction, the Benefíce he loft ; and the Rea-
ſon upon which the Caſe, is reſolved, ſeems to be, that the Sentence of
Deprivation being declared void, and Parry thereby reſtored to his Li-
ving, by Relation, he was in upon his firſt Inſtitution and Induction, fo
the Church cannot be ſaid ever to have been void; or as I conceive,
upon this Ground, that when a real Cauſe or Deprivation by Law ceaf-
eth to be a Cauſe thereof, a Sentence of Deprivation that was well given
when the Cauſe of Deprivation was warrantable in Law, and the Effects
thereof, (as the Inſtitution and Induction of another into the Benefice of
the deprived) at ſuch Time when the Law ſhall make the Offence, upon
which the Deprivation was grounded, to ceaſe to be an Offence, ſhall
be ſaid void, or at leaſt voidable : For the firſt Sentence was well gi-
ven; becauſe, for a Prieſt to be married, or to be a Favourer of the
Religion received in the Time of E. 6. as the Law ſtood in the Time
of Q. Mary, were ſufficient Cauſes of Deprivation, until the Law was a-
gain altered. i Eliz. and ſo the other lawful Incumbent, until the fc-
cond Deprivation came, or at leaſt until ſuch Alteration was made.
If a Real
ccaferh.
3
In
Chap. VI. The Complete Incumbent.
61
..
Notice to
the Patron.
Patron Nos
In the Caſes aforeſaid, and ſo in all others, where the Church is on Spotice of
Depzivati.
ly voidable before Deprivation, and by that made void, the Ordinary on.
is to give Notice of the Avoidance to the Patron, and the Patron hath
fix Months after the Notice, in which he may preſent before Lapſe can
run to the Ordinary. Mich. 15 El. 3 Leonard 45. Hil. 43 El. Leake
v. Biſhop of Coventry, and Dr. Babington. 3 Cro. 811. Mich. 15 and 16
Eliz. Dyer, fol. 327. 1 H. 7. 9. b. Doctor and Student. Lib. 2. C. 13.
5 E. 4. 3. b. Hil. 9 Car. King v. Prieſt. Jores 337. Hil. 36. El. B. R.
Pophan 37
And ſeeing that in all Cafes when the Church is ſo void, that the Fure Patron
Patron is not bound to take Notice of the Avoidance thereof, for the natus by the
Biſhop
preventing of a Lapfe, and the Biſhop cannot have Advantage of the
Lapſe, until fix Months after he hath given Notice of the Avoidance to
the Perſon of the Patron (if he be within the County when he gives
Notice,) viz. to him that is to preſent to the preſent Avoidance, altho’
the perpetual Inheritance of the Advowſon be in another, (yet if he
doth only give Notice to ſome ſuppoſed Patron, his Notice is vain) it may
be a Queſtion, what Courſe in ſuch caſe the Biſhop is to take? As to
which, if the Biſhop doth not certainly know who is Patron, and ought
to preſent to the void Turn, his way (by the Opinion of Hobart) is to a- To give the
ward a Jure Patronatus, with folemn Premonitions Quorum Intereſt, tice.
and then Enquiry being made who is Patron, the Ordinary is to give
him Perſonal Notice, who is found to be ſo by the Verdict; that is, if
he be then within the County, otherwiſe by publick Edict at the void
Church. Dy. 328. 3 Cro. 119. and if he doth not preſent within ſix
Months after, the Ordinary may Collate: And tho' by the Jure Patro-
natus, not he that is the true Patron, but a Stranger, is found to be Pa-
tron, yet this Proceeding ſhall excuſe from Diſturbance upon the ſpeci-
al Matter ſhewed : But if he that is found to be Patron, upon the
Jure Patronatus, doth preſent, and the ſix Months do incur, Quare, If
the true Patron be bound, ſince there was no Notice given him? And
I am of Opinion, (faith he) that tho' without notice the Patron is not
bound by the Lapſe, yet that is nothing to ſave the Uſurpation of ano-
ther pretended Patron, who is not ſubject to give Notice. Sir Willianz
Elvis's Cafe v. the Archbiſhop of York. Taylor and Biſhop. Hob.
318.
And accordingly when a Clerk was deprived for the Cauſe of not Notice of
ſubſcribing the Articles upon the Statute of. 13 El. c. 12. and the Bi- Deprivation.
Thop gave Notice thereof in theſe Words: R. Epiſcopus C. univerſis
Rectoribus, Vicariis, Curatis, non Curatis, Clericis literatis quibuf-
cunque infra Diæcefin noftram Ciceftrenfem ſalutem. Cum Ri. Cleri-
cus Vicarius perpetuus Vicaria perpetua Ecclefiæ Parochialis de C. no-
ftris Diæceſis non ſubſcripſit Articulis, &c. juxa Statutum, &c. Man-
damus eis omnibus, & præcipue Curato de C. ad Declarandum in
Dieta Eccleſia de C. dictam non ſubſcriptionem, &c. which were read
in Engliſh by the Curate, in the Pulpit, in the ſaid Church of C. in the
'Time of Morning Prayer, and after were fixed to the Door of the
Church, by a Publick Apparitor, theſe Exccptions were taken thereto:
Firſt, That there was no Mention of the Patron, or his Name, in the
Intimation. Secondly, That no expreſs Mention is made of the Depri-
vation, according to the Proviſo in the Statute aforeſaid, nor of any
Qualifcation of the Perſon deprived, by which he ought, or it. was
needful for him, to ſubſcribe the ſaid Articles. Thirdly, That he is
called, Vicarius Perpetuus, and not Nuper Vicarius; which implies,
R
That
62
The Clergy-Man's Law: Or, Chap. VI.
ter, &c.
Quære Bp.
Caſc.
Notice of That he was not deprived at the Time of the Intimation, by which
Deprivati-
no Deprivation was, or could be notified. Fourthly, That it was not
on.
made to the Perſon of the Patron : And the Opinion of the Civilians is,
That the aforeſaid Intimation is not fufficient to prejudice the Patron
for that it was upon a Statute Penal, both to the Incumbent and Pa-
The Notice tron, and fo ought to be, Vere, proprie, e perſonaliter, non fifte;
ought to be
Vere, propie,
but ought to notify, that the Ordinary had deprived him by Declara-
& perſonali- tory Sentence, Pro non Aſenſu & Subſcriptione Articulis ſecundum
Statutum. And ſo reſolved for the Cauſes aforeſaid by all the Juſtices
and Chief Baron, except Harper and Mounſon, abſente Gawdy. Hill.
18 El. Dyer 346.
As to the Power of an Archbiſhop, &c. in depriving Biſhops, a Que-
Watſon's
ſtion has lately ariſen, Whether he has any Power to deprive a Biſhop
for
any
Cauſe whatſoever, or whether it ought to be done in Convo-
cation. And thoſe who deny the Archbiſhop's Power herein, do af-
firm, That he hath no ſuch Authority either by the Canon, or the
Statute Law.
The Canons (ſay they) are exprefly againſt it, for thoſe direct, that
a Biſhop ſhall be deprived in a Synod of the Province, or if that can-
not be aſſembled, then by the Archbiſhop and twelve other Biſhops
at leaſt, not as Aſſiſtants, but Co-judges with him.
That fome Inſtances of this Method of proceeding are as early as
the third Century, as in the Caſe of Fortunatus, whom ſome Schif-
maticks of Carthage had ſet up for Biſhop of that place in Oppoſition
to St. Cyprian, who did not think fit to diſpoſe him by his ſingle
Authority, but had it done in a full Council of the African Biſhops,
&c.
And that in the fame Age, Bafilides and Martialis were depoſed by
Another Council of Spaniſh Biſhops ; and that many more ſuch In-
ſtances may be found in the Fathers, and they urge, That all this was
done in Conformity to the Ancient Canons of the Church,
But as to the Inſtance of St. Cyprian we may obſerve, That as he
paid a ſingular Reſpect to Councils, ſo he had no leſs a Regard to the
Opinion of his Flock or People, for in his fixth Epiſtle he ſays; I re-
Solved with my ſelf from the Time of my Entring on the ſee to do no-
thing by iny own perſonal Authority, without the Advice of my Prieſts
or Presbyters, and the Conſent of my People. And therefore 'tis no
Wonder his humble condeſcending Temper ſhould ſubmit a Matter,
wherein he himſelf was a Party concerned, to the Judgment and Deter-
mination of a General Council.
And as for the Practice of the Spaniſh Biſhops, or the Ancient Canons
above-mentioned, I cannot find they were ever admitted here in Eng-
land. On the contrary 'tis certain, the Practice here has been otherwiſe,
and divers Biſhops have been deprived of their Biſhopricks by Commif-
fioners appointed by the King: fo was Bonner deprived of the Biſhop-
rick of London.
"Tis ſaid indeed, That ſuch Commiſſions were iſſued at that Time
from the Crown, by Virtue of a Supremacy lodged in our Kings, be-
cauſc a Biſhop could not then be deprived in a Synod fo foon after the
Reformation; for the Popiſh Biſhops and Clergy were then too nume-
rous in thoſe Aſſemblies for the Proteſtants, and therefore 'twas thought
proper to proceed by ſuch Commiſſions.
But it was no objection againſt Bonner's Deprivation, that it was
uncanonical as being done by the Kipg's Authority, but only becauſe
fome
Chap. VI. The Complete Incumbent.
63
fosc.
ſome of the Commiſſioners were Lay-men. Which no doubt might Novowlons,
lawfully be, for this Matter is not merely Spiritual, but of a mixt
Nature, and therefore Lay-men may well join in ſuch a Cenſure of
Deprivation.
Beſides, ſince a Biſhop, here in England is veſted with that Dignity
by a Commiſſion or Authority derived from the King, 'tis reaſonable
he should be deprived (where there is juſt Cauſe) by the ſame Authori-
ty.
For tho' the Pope did formerly aſſume a Juriſdiction to deprive
Biſhops, yet that being by Uſurpation on the King's Prerogative, when
the Pope's Power became aboliſhed, the Kings of England were not
only reſtored to, but have ever ſince enjoyed their Ancient Right
herein.
And therefore not only Bonner, Biſhop of London, Gardener,
Biſhop of Winton, Heath, Biſhop of Worceſter, Day, Biſhop of
Chefter, Tunſtall, Biſhop of Durham, and others were formerly
deprived of their reſpective Biſhopricks by Commiſſioners appoint-
ed by the King, notwithſtanding theſe and others Objections,
viz. That the Commiſſioners proceeded ex Officio contrary to the
King's Ecclaſiaſtical Laws; That Interrogatories were drawn up, &c.
without the Biſhop's Knowledge, That the Witneſſes were examined
privately, and not on Oath, and that the Commiſſioners would not
Tuffer the Biſhops to croſs examine them. That they refuſed to re-
ceive any Appeal, and deprived them, pendente appellatione ; to which
we may
add the well known Caſe of Dr. Watſon, late Biſhop of St
Davids,
CH A P. VII.
-
Of the Original of Advowſons and Right of
Patronage, and the Nature thereof both
Appendant and in Groſs, and of a Right by
Uſurpation, &c.
Cowel invera
bo.
IN
N an old Canon Law Gloſſary, printed Anno 1500. I find the Word
Advocatus defined to be qui alio nomine, quaſi legatus, Patronus vo-
catur ; quia in forenſibus ſeu extraneis negotiis (pre-eminentibus) pre-
bet litigantibus ſuum Patrocinium, &c. Et inde venit verbum Advo-
care, quod eft, poftulare 'pro opponente, & Deſiderium ejus coram judice
exponere & patrocinium in cauſa præftare; which Words ſeem to juſti-
fy that Diſtinction of Spelman and Cowell
, That Eccleſiaſtical Advo- Spelman to
cates or Patrons were of two kinds, viz. one of the Cauſe or Perfon,
and the other of the Place or Church.
The former of theſe Advocates or Patrons are in the Canon Law cal. Cod. Afric.
led Defenſores, who were to be elected by a Licence from the Empe- & 97.
ror at Diſcretion of the Biſhops, and were employed either to defend
the Rights of the Church, or to protect the Poor againſt the Rich.
Which kind of Advocates were, as Spelman obſerves, introduced
after the Conſulſhip of Stilico. (i.e. circa Ann. 400.) Vide Spelman in
corbo.
'The
Canon 75,
64
The Clergy-Man's Law: Or, Chap. VII.
ad powions,
&c.
Lib. Rames.
Sect.49.
Ib. Sećt. 77.
cap. 19. Ego
lib. 4. c. 7.
verbo.
Vide Cod.
71.
The ſecond kind are by Spelman ſtiled. Advocati Ecclefiæ ratione fo-
li, and ſuch were the Founders of Churches or Monaſteries, or their
Heirs, as in the Book of Ramſey Abbey. Dux Ailwinus, (who was
the Founder) proruit in Medium, ſe Ramefenſis Ecclefia Advocatum,
le polleljionum ejus Tutorem allegans, and afterwards, Pia memoria
Ib. Se£t. 25. advocatus noſter Ailwinus Aldermannus. Alſo Earl Alfgar is in the
Book ſtiled Advocatus (i. €. Patronus) Eccleſia de Burwell. And 70-
hannes Extraneus, or Le Strange, circa Temp. H. 2. is alſo therein faid
Ib. fo. 37
to be Advocatus Eccleſia de Hulmo. And Glanvil about the fame
Glan
. lib. 13. Time ſays, fi quis Advocatus præſentavit perſonam ad Eccleſiam, &c.
And in another Place ſays, fi is qui ſe perſonam gerit in Ecclefia ipſa,
Adtocet per unum Advocatum, for Patron) & alius Patronus clamat
eandem Advocationem, &c.
Spelman in
And the before cited Author obſerves, That the Word Advocare was
in thoſe Times taken pro Defendere e tutari. Dicuntur enim Advoca-
ti non (tantumn) quòd vacanti Eccleſie Rectorem advocarent, quæſtum
ex hoc (11t ſolent) facientes; ſed quod laboranti Eccleſia ſuccurrerent,
Affr. fupra.
tuerentur, defenderent, &c. Thus far of the Ancient and Original Sig-
nification of the Words Advocatus, Advocare, &c. If any deſire to ſee
other Significations thereof, he may peruſe beſides the Authors ſupra,
Rag. fo. 19 and 20. in verbis Advocatur and Advowfon, Glosary
in Matt. Paris, e Skene de verbor' Significatione, Lambard's Saxoiz
Laws, verb. Advocare Couftumier de Normandy f. 103, 104. Seld. Ja-
nus f. 9. Hiſtory of Tythes 355. Bratton 249. 6. 248. Fleta lib. 2. cap.
& lib. 5. cap. 14. Bodin 105. Doderige of Advowfons. Co. Lit. 17.
b. 18.47. 119. D. 122. 197.b. 332. 366. 374.b. And Note Ryley's Pla-
cita Parliamentaria. f. 82. Homin. de Manupaſtu vel de advocatione
Comitis Glouceſtria.
The Original of Advowſons, or Right of Preſentation to Benefices
Eishop Gibſ here in England, we have already ſhewn in the Beginning of this Dif-
courſe, and therefore ſhall only add in this place the Obſervations or
Collections of a Right Reverend Prelate, in his large and laborious
Work touching Advowfons in general, viz.
The Right of Advowſon (called in Latin Jus Patronatûs) or of
preſenting a Clerk to the Biſhop as oft as a Church becomes vacant,
was founded in the Building, or giving Land to Build on, or in the
Endowing of fuch Church, and according herewith is that Definition of
De Jure Pa- Linwood, viz. Jus Patronatus eſt Jus honorificum, onerofum & utile,
alicui in Eccleſia competens, pro eo quod de Diæceſani licentia, five con-
ſenſu, illam fundavit, dotavit vel conſtruxit ipſe, vel is, a quo juftam
caufam (præſentandi) habet.
Original of For altho' the Nomination of fit Perſons to officiate throughout the
Advowlons. Dioceſe, was originally in the Biſhop, and in none elſe; yet when
Lords of Manors of old were willing to build Churches, and to endow
them with Manſe and Glebe for the Accommodation of fixed and refi-
ding Miniſters, (who before were as ambulatory Miſſionaries of the Bi-
ſhops) the Biſhops on their Part, (for the Encouragement of ſuch pious
Undertakings) were Content that thoſe Lords ſhould have the Nomi-
nation of Perſons to be inſtituted to the Churches ſo built, and en-
dowed by them, reſerving ſtill to themſelves the Right of judging of
the Fitneſs of the Perſons fo nominated.
And thus what was at firſt a Matter of Practice, became in Proceſs
of Time the Law of the Church, and thereupon was founded this
Conſtituticn, viz. Decernimus ut quamdiu Fundatores Ecclefiarum i1z
hác
Cod. 795.
tron. C. I.
cui cec.
Chap. VII
65
The Complete Incumbenit.
Forc.
tur.
every Ad-
hâc vitâ ſuperſtites exſtiterint pro eiſdem Locis curam permittantur ha- Advowions,
bere Solicitam, atque Rectores idoneos in eiſdem Bafilicis iidem ipfi
offerant Epifcopis ordinandos. And that others, fi quis Ecclefiam Extra. i.
cum alenſii Diæcefani conftruxit, ex eo Jus Patronatus acquiri-
Note the Words, Curam habere ſolicitam ſupra, feem to point out
the Reaſon why they were called Advocati and Patroni, i. e. be-
cauſe they were bound to Defend and Protect both the Rights of
their Churches, and the incumbent Clerks from Oppreſſion and Vio-
lence.
Now the ſaid Right of nominating, (which at firſt was annexed to
the Perſon building or endowing the Church) afterwards deſcending to
his Heir, became by Degrees to be appendant to the Manor wherein
'twas built. For the Land and Endowment were ſuppoſed to be Parcel
of the Manor and the Church it ſelf, to be built by ſuch Lord for the Uſe
of the 'Tenants and Inhabitants of his Manor, and the 'Tythes of the Ma-
nor were alſo annexed to the Church ; upon all which Accounts it was
thought very reaſonable, That the Right of Advowſon ſhould paſs with
the Manor, or with ſuch Part thereof as might at any Time be granted
or aliened together with the Advowſon, to which (whether to the
Whole or Part) it is therefore faid to be appendant, i.e. To the De- Vide poft
.
menſes which are of perpetual Subſiſtence, but not to Rents or Servi-
ces, which (tho' Parcel of the Manor) may be extinguiſhed, and there-
fore cannot ſupport ſuch an Appendancy. See Co. Lit. Sett. 184. and
Hughes and Shepherd's Abridgments. Tit. Advowſon.
And Note in every Advowłon or Rectorſhip, there ought to be three Three
diſtinct and different Rights concurring, viz. 1. Jus Preſentationis, or the
Righis in
Patron's Right of Preſentation. 2. Jus Ordinationis, or the Ordinary's vowſon.
Right of Inſtitution, and 3. Jus Pollefionis, or the Incumbent's Right
of Poffefſion, i. e. the Right of the Parfon imparfonee. And the Word
Advowſon, tho’ it be generally taken for a Right of Preſentation or
Collation to any Church, Chapel or Chantry either preſentative, colla-
tive, donative or elective, yet it truly and properly ſignifies a Right
of Preſenſation to a Church parochial, thereof, or therein to be Incum-
bent with Cure of Souls, and may be either of a Parſonage or Vica-
rage. See Co. Lit. 119. 5 Co. 50. F. N. B. 33.
After a Clerk hath Knowledge that a Church is void, he is in the Of Advow-
next Place carefully to inform himſelf who is the true and rightful Pa-
tron thereof; for otherwiſe he may be put to great and exceſſive
Charges in defending his Patron's Title, and yet in the End loſe the
Benefice; Therefore and in order thereunto he ought to underſtand
how, and by what Means the Right of Patronage, (which is a Right
of preferring a fit Clerk to a Spiritual Promotion) may come to any
Perſon. And that the Way to the Knowledge of this may be the
Appendant,
more clear, it is to be noted, that of Advowfons, fome Advowfons are not
Appendant, and fonie in Groſs; ſome partly Appendant, and partly
Grofs
. To explain which, we muſt know that there are two Sorts of
Inheritances, the one Corporate, ſuch are Meſſuages, Lands, &c. which
have Subſtance in themſelves, and may continue for ever. The other An Inheri-
Incorporate, as Advowſons, Ways, Coinmons, Courts, &c. And theſe tance Incor-
latter may be, and often are Appendant to the former; fo that an Ad-
vowſon Appendant, is an Inheritance incorporate, that doth appertain
to ſome corporate Inheritance, whereby he in whom ſuch corporate In-
heritance is, hath Title to the Advowſon, as annexed thereto : But
S
when
fons.
porate.
!
66
The Clergy-Man's Law: Or, Chap. VII.
ETC.
11, 12,
33.
Glebe.
Advowfon
how.
:
Advowlons, when an Advowfon, cither originally Appendant (which can be only
by building or endowing the Church, or the like as aforeſaid) and af-
terward by Grant, Deed, Partition, or fonie other Legal Act, is fc-
vered wholly from that corporate Inheritance to which it was Appen-
An Advowe dant, it is then ſaid to be an Advowſon in Groſs; and when it is in
in Groſs,
Part, and at ſome 'Turn only fevered from what it was Appendant, it
is faid to be in Part Appendant, and in Part in Grofs.
The Original of appendant Advowfons, is thought to be by the
fame Means by which the Titles to the Advowfóns themſelves were
Vide 33 H. 6.
gained, viz. by giving either the Lands upon which the Church is
built, or the Glebe with which it is endowed; and ſo the Land on
which the Church is built, or the Glebe with which it is endowed, or
both, are ſuppoſed to be Parcel of the Manor or Honour, to which
we find the Church appendant as aforeſaid. But to ſhew that an Ad-
appendant,
vowſon is appendant, 'tis not neceſſary to ſet forth the Original there-
of ; for that were impoſſible, being the Appendancy is ſuppoſed Time
out of Mind, the Beginning and Commencement whereof is not to be
known : And it doth in it felf imply a Title by Preſcription, to the
Owners of that Manor, &c. 11 H. 6. 11, and 12. 13 Eliz. Dyer 299.
I Inft. 121. But where the Advowfon hath at all Times, whereof the
Memory of Man is not to the contrary, paſſed with the Manor by
theſe Words, Cum pertinentis. 33 H. 6. 4. b. it is to be taken as an
Advowſon appendant : But a Preſcription for the Appendancy of an
Advowſon is not good, where the Thing to which it is affirmed to be
appendant is of that Quality, that thereto an Advowſón may not be
ſaid to be perpetually appendant. 5 E. 6. Dyer 70. b. 8 H. 7. 4, and
5. Plowden 68. i Inft. 122. Such are Things that are not of a per-
petual Subſiſtence, as Rents and Services, that may be extinguiſhed
it ſhall therefore be ſhewed particularly to what Things án Advowſon
Things. may be appendant.
Appendant
Properly and originally, an Advowſon may be appendant only to In-
heritances Corporcal, as to Manors, Caſtles, &c. Plowd. 170. b. 10
H. 7. 13. but moſt commonly it is appendant to fome Manor; and
poreal
an Advowſon in the County may be appendant to a Manor in another
County; that is (I ſuppoſe) where the Manor did originally extend it
ſelf into divers Counties. 23 H. 6.4. So two or more Adyowfons may
be appendant to one Manor, as where a Manor is extended into divers
Pariſhes : And one Advowſon may be appendant to two Manors, as
when two diſtinct Churches; appendant to two Manors, by Union, be-
come one Church ; in which Caſe the Advowſon is entire, and no
Moieties, as is between Coparceners, Joint-Tenants and Tenants in
Common ; yet fome Authorities are, that each of the fame Patrons,
after the Union, is ſeized De Medietate Advocationis Ecclefia. 14 H.
Originally 6. 15. b. Dyer 259. b. But if an Advowſon be originally appendant to
appendant. one Manor, of which Manor another Manor is held, tho the Manor
which holds of the other, doth by Way of Eſcheat become Parcel
thereof, yet the Advowſon is appendant only to that Manor to which
Moiety.
it was originally appendant. Coke Litt. 122. Laſtly, the Moiety of
an Advowſon may be appendant to a Manor, or to Part of a Manor.
33
H. 6. 11, and 12. a. Dyer 44. b. But when 'tis faid, That an Ad-
vowſon may be appendant to a Manor, 'tis to be underſtood in reſpect
of the Demeſnes only, which are of perpetual Subſiſtence and Conti-
nuance, and not in reſpect of the Rents or Services.' Pafch. 39 Eliz.
Rot. 2024. Long's Cafe in C. B. 5 E. 6. Dyer 70. Scoile's Cafe 182.
fol.
To what
to Inhcri-
tances Cor-
Union.
Chap. VII. The Complete Incumbent .
67
fol. 104.
8pc.
Acre ;
And generally, one Thing incorporate cannot be appendant Hovowlons,
to another 'Thing incorporate. Plowden 170. Bratton, Lib. 2. f. 53.
Co. 4. Tirrinham's Cafe, 36.b. i Itzft. 121. b.
An Advowfon may be appendant to fome Things fecondarily, to Secondarily
which it may not be appendant originally'; for originally an Advowſon appendant.
cannot be appendant to one or two Acres of Land. 33 H. 6. 12. d.
yet by fecondary Means it may. 18 E. 3. 52. b. 39 E. 3. 36. b. 19 E.
3. Quare Impedit. 155. 28 H. 8. Dyer 24. As if he that is feiſed of
a Manor, to which an Advowſon is appendant, grants one or two Acres
of the Manor, una cum Advocatione, the Advowſon is appellant to Owner of
fuch Acre. 5 'H. 6. 10. a. Fitz. Feoffment, 155. 17 Ed. 3. 3. eſpecial a Manor
ly after the Grantee hath preſented. 44 Ed. 3. 16. 17 Ed. 3. 3. b. 5. Acre una cum
a. Adjudg. ib. 21. B. But this Feoffment of the Acre, with the Ad Advocatione.
vowſon, ought to be by Deed, to make the Advowfon appendant. 17
E. 3, 4. B. 18. B. and the Acre of Land and the Advowfon ought to By Deed.
be granted by the ſame Clauſe in the Deed: For if one having a Ma-
nor, with an Advowſon appendant, grant an Acre Parcel of the ſaid
Manor, and by another Clauſe in the fame Deed, grants the Advow- Clauſe.
fon, yet the Advowſon ſhall paſs in grofs, and not appendant to the
but if the Grant had been of the entire Manor, the Advowfon
would paſs as appendant. "Paſch. 33 H. 8. Dyer 48. 2. 44 E. 3; 4. b.
48 E. 3.4. b. So if an Husband ſeiſed in Right of his Wife, of a Ma-
nor, to which, &c. alien the Manor, by. Acres, to divers Perſons, fa-
ving one Acre, the Advowſon ſhall be appendant to that Acre. 17 E. One Acte
3. 22. b. 'Or if Leſſee for Life of a Manor, to which an Advowfon faved.
belongs, alien one Acre, with the Advowfon appendant, the Advow-
fon is thereby appendant to that Acre. 18 E. 3. 44. 17 E. 3. A. So if
in ſuch Cafe" he alicn one Acre, with the Advowſon appendant, and
after alien the reſt of the Manor, the Advowfon is appendant to the
Acre aliened with it. 17 E. 3. 22. b. 19. b.
As an Advowſon may by ſecondary Means be appendant to one or Secondarily
more Acres ; ſo tho' an Advowſon cannot originally be appendant to a
ſuage.
Meſſuage, M. 33 El. in C. B. Long and Hemming's Cafe. 3 Cro. 209.
yet ſecondarily it may. 7 E. 4. 23. As when a Meſſuage is built up-
on a Parcel of Land to which an Advowſon was appendant, the Ad-
vowſon becomes appendant to the ſame Meſluage ; and if the Meſſuage
doth fall, or be pulled down, the Advowfon ſhall be as before, ap-
pendant to the Land. Plowden 170. b. 10 H. 7. 13. b. by Keble. In So to a Par-
like manner an Advowfon of a Vicarage may be appendant to a Parſo- fonage.
nage, as being derived and endowed out of the ſame. 18 Eliz. Dyer
350. b. 17 E. 3. 76. a. Mich. 16 Jac. Sir George Shirly v. Underhil and
Burſey. Moor 894. Upon which Account it is, that if a Parfon be Pa-
tron of a Vicarage, and doth leaſe the Parfonarge to another, the Pa-
tronage of the Vicarage ſhall paſs as incident thereunto. Roll's Abr. 2.
upon the ſame Account, the Rector of common Right is e-
ver eſteemed Patron of the Vicarage, though by fome Ordinance or
Compoſition, or by the King's Grant it may be appointed and ſettled o-
therwiſe as before is ſhewn;
and ſo may even an Advoiſon of a Vicarage
be appendant unto other Things, as to a Manor, by Refervation upon
the Appropriation, becauſe the Advowſon of a Rectory was appendant
thereto. Mich. 16 Jac. Sherley v. Underhil's Cafe. Moor 894. Mich.
13 Jac. B. R. the King v. Biſhop of Norwich, Cole and Saker. i Rol.
Rep. 235. as alſo by the Grant of the Parſon, before the Time of Mc-
mory. Mich. 13 Jac. B. R. King v. Siker. 2 Cro. 386. the fame Cafe.
I Roll's
@
to a Mer
i
59. And
68
The Clergy-Man's Law: Or, Chap. VII.
.
c.
of one
Church to
another.
How appen-
dant may
become in
ز
By ſeveral
Clauſesin
one
ز
adbowions, 1 Roll's Rep. 235. Mich. 14 Jac. the Dean and Chapter of Exeter
and Corniſh's Cafe. Roll's Abr. 2. 336. And in this Cafe, altho' the
Right of Appropriation be not extant, yet the Uſe of preſenting Time
out of Mind, is a ſufficient Evidence of the Appendancy to the Manor,
& C. contrary to the common Right. Sir Geo. Shirley v. Underkil &
Burſey. Mich. 16 Jac. Moor 894.
Alſo an Advowſon of one Church may be appendant to another fe
condarily, tho' Things of the fame Nature cannot originally be ap-
pendant to each other. Fitz. Quare Impedit, 13. 24. E. 3. yet'tis faid,
one Advowfon cannot be appendant to another. Roll's Abr. 1. 231.
An Advowfon (to what Thing foever it is appendant) may be ſeve-
red from the ſame, and become an Advowfon in grofs, by divers
groſs, and Means, by ſome of which it is made to be abfolutely diſappendant, by
made dir-
others only for a certain Time. An Advowſon is made difappendant
appendant.
abſolutely; Firſt, by an Exception of the Advowſon upon a Grant of
the Manor, or other Thing, unto which it is appendant in Fee-ſimple;
or, by a Grant of the Advowſon alone, the Thing to which it belong-
ed not being alſo conveyed. And tho' he that is feiſed of a Manor to
which an Advowſon is appendant, doth grant one Acre of Land, Par-
cel of ſuch Manor, una cum Advocatione Ecclefia, which Grant alone
makes the Advowſon appendant only to the Acre ; yet, as hath been
ſaid, if he firſt granteth the Acre, and then by a diſtinct Clauſe in the
fame Deed, he further giveth and granteth the Advowſon, ſuch Ad-
vowfon ccaſeth to be appendant to the Manor: For. tho theſe two
Deed.
Grants be but in one and the fame Deed, yet becauſe they are by ſe-
veral Clauſes, are as feveral Grants, and by the latter it is granted as
an Advowſon in grofs; for it ſhall be conſtrued, as all Grants are, viz.
ſo as ſhall be moſt for the Benefit of the Grantee, and therefore to paſs
in grofs. 33 H. 8. 48. Dyer. And yet if the entire Manor be granted,
and by the ſame Dced, the Advowfon that is appendant to it, tho' the
Advowſon be named in a diſtinct Clauſe, and in groſs, yet it ſhall paſs
as appendant. 48 E. 3, 4. b.
By levying If upon the levying of a Fine, he that hath an Advowſon as appen-
dant, doth acknowledge the Right to be in another, by ſuch Conu-
fance the Advowſon is fevered from the Manor to which it was appen-
dant, and can never become appendant again by any After-grant; but
if in ſuch Caſe one Perſon doth by Fine acknowledge the Right of an
Advowſon to be in him to whom it belongs, and upon this Conu-
ſance, he to whom the Acknowledgment is made, doth grant, that
the other, his Heirs and Aſſigns for ever, ſhall preſent by 'Turns; not-
withſtanding the Acknowledgment that the Advowſon was in him, it
ſhall be appendant as before, for ſo much of it as doth remain not
granted away, viz. for every other Turn; and in grofs, for that which
is paſſed by the Fine; but if he who is feiſed of the Advowſon appen-
dant, doth by Fine paſs it away to another, who by the ſame Fine
doth render it back to him in Fee, yet the Advowfon by the Grant be-
came to be in groſs, and no Matter after that can make it appendant
Accepting a again. Compleat Parſon, 58, 59. 43. E. 3. 35. a. And ſo if a Man
that is feiſed of a Manor, to which an Advowſon is appendant, doth
Stranger.
accept of a Fine from a Stranger, by which the Stranger doth ac-
knowledge all his Right to him in the Advowſon, the Advowſon there-
by is not in grofs. 43 E. 3. 35. Alſo in the Caſe of a Fine levied
of a Manor to which an Advowſon is appendant, if a third Part be ren-
dred back for Life, the Remainder over, and the other two Parts,
a Finc.
Fine of a
ender.
:
>
3
with
Chap. VII.
69
The Complete Incumbent.
Egoce
with the Advowſon in like manner, the Advowſon continueth in the advowlo1is
fanie State it was before, viz. appendant. 45 E. 3. Or if a Man,
having an Advowſon appendant, doth grant every ſecond Preſentment
2. Tnrn.
to another in Fee, yet the Advowfon doth continue appendant for the
other Turn not granted. 43 E. 3. 35. and if he grant three or more
Avoidances, theſe indeed are in grofs; yet the Advowſon, as to the Re-
mainder, is ſtill appcndant, by Hob. Paſch. 17 Jac. in Sir William El-
vis's Cafe. Hob. 323.
Another Means by which an Advowſon becomes abſolutely diſap- By Preſent-
pendant, is by Preſentment: For if one doth preſent to an Advowfon ment.
that is appendant, as to an Advowſon in grofs, by ſuch Preſentment the
Advowſon loſeth its Appendancy. 21 E. 4. 2. And yet by the Uni- Union.
on of Churches, no Alteration is made; for if two Churches, the Ad-
vowſon of one of which is appendant, the other in groſs, be united, and
it be ordained by the Ordinary, with the Affent of the Patrons, That
they, their Heirs and Aſſigns for ever, ſhall prefent to that Church the
Advowſon of which was before appendant, Alternis vicibus, and that
the Patron of the Church in groſs ſhall have the firſt Turn, yet the
whole Advowſon ſhall not be in grofs, but for the Turn only of him
that was Patron of the Advowſon in groſs, and be appendant for the
Turn of him that was Patron of the Advowfon appendant. 9 El.
Dyer 259.6.
An Advowſon appendant may be made difappendant only for a certain For a cer.
Time, by divers Means; and firſt
, By a Leaſe made of a Manorfor Life, only as a
to which an Advowſon is appendant, excepting the Advowſon ; for by the Leaſe.
Excep:ion the Advowſon is in groſs, during the Eſtate for Life; but when And Advowa
ſon except-
the Lefſee dieth, it becometh appendant" again to the famie Manor. ed.
Pafch. 3 Çar. Hartop and Cox's Cafe. Hutton 88. Paſch. 3. Jac. Har-
top and Tuck v. Dalby, Hetley 14. yea, and tho' the Leaſe be made
without Deed, the Law is the ſame. 5 Co. II. b. So if the King doth By Leaſe of
Leaſe a Manor for Life, to which an Advowſon is appendant, without Advow on
mentioning the Advowfon, the Advowſon doth not paſs, but remains ngt menti-
to the King as an Advowſon in grofs: And in ſuch Cafe, if the King
doth make a Grant of the Reverſion, Habendum the Reverſion of the
Manor with the Advowſon, the Advowſon is not thereby paſſed with
the Manor, becauſe it was ſevered, and became in grofs by the former Severance.
Grant. Co. 11. 47. Lifford's Cafe. For in the Caſe of the King, an
Advowfon in grofs will not paſs by the Habendum, where it is not na-
med in the Premiſſes of the Grant. 38 H. 6. 26. So if one hath an Ad- By Leaſe of
vowſon appendant to a Manor, and grants the Advowſon for Life, and Advowfon
after enfeoffeth another of the Manor, cum pertinentiis, the Free-
hold of the Advowſon by the Leafe is ſevered from the Manor, and
will not paſs by ſuch Grant, yet the Reverſion of it remains appendant,
and will paſs thereby. But if one leaſe his Manor for Life, faving to
himſelf the Advowſon, and after grants the Reverſion of the Manor,
C111 Advocatione, the Advowfon ſhall paſs as appendant to the Manor.
Ive's Cafe. 5 Co. 11. b.
In the firſt Caſe, the Advowſon being granted for Life, the Reverſi-
on thereof continued notwithſtanding appendant to the Manor; but in
the latter Cafe, the Manor being granted for Life, excepting the Ad- of an Ad-
vowfon, the Advowſon in Poſſeſſion cannot be appendant to the Rever- vowfon ap-
ſion of the Manor ; for that an Advowſon or other Thing in Reverſion pendant, Elvin
may be appendant to, or Part of a Manor in Poſſeſſion; butan Advow-
fon, or other Thing in Poſſeſſion cannot be Part of, or appendant to a
T
Manor
oned.
ز
70
The Clergy-Man's Law: Or, Chap. VII.
pc.
count of
Thip
Diviſion.
revived.
Four Ma-
Sifters.
advowlons. Manor in Revreſion, after a Leaſe for Life, but a Leaſe for Years 2012-
tra. Ive's Cafe. s Co. 11. b. 1 Inft. 324, 325. Hutton 89. Complete Pai-
Jon 56, 57. Plowden 104. b. 38 H. 6. 36, 38.
Upon Ac-
Alſo an Advowſon appendant may be made diſappendant for a cer-
Coparcener- tain Time, only upon the Account of Coparcenerſhip: For if a Ma-
nor, with an Advowfon appendant thereto, defcend to two Coparce-
ners, and the Advowſon be allotted to one, the Manor to another, the
Advowſon is in grofs : But if the Siſter who hath the Advowfon die
without Iſſue, the Advowſon is again appendant to the Manor, though
there was a Severance in Perpetuity, as 'tis ſaid in Hartop and Tuck's
Cafe 2. Dalby. Paſch. 3. Jac. Hetley 14. Or if the Manor had been
divided betwixt the Coparceners
, without mentioning the Advowſon,
the Advowſon remains in Coparcenary; and yet in every of their
Turns it is appendant to that Part which they have. i Inft. 122. But
Exception. if they had made Partition of the Manor, with an expreſs Exception
of thé Advowſon, then the Advowſon remains not in Coparcenary,
but in grofs. i Inft. 122. a. 13 E. 2. Quare Impedit, 170. 58, 59.
17 Ed. 3. 38. b. So if Partition had been made, as well of the Ad-
vowſon as of the Manor, the Coparceners are Tenants in Common of
the Manor, and of the Advowſon, as in groſs; and yet, if all but one
of the Siſters die, the Appendancy of the Advowſon is revived. 2 H.
Appendancy
7.5. b. 19 E. 3. Quare Impedit 59. So if four Manors, to one of
which an Advowfon is appendant, deſcend to four Siſters, and cach
nors a-
mongit
Siſter hath a Manor allotted to her by Compoſition, ſhe to whom the
Manor, to which the Advowfon is appendant, is allotted, will have the
Advowſon as appendant there. But if upon the Partition, particular
Exceptions ſhall be made of the Advowſon and Compoſition, that the
Coparceners ſhall preſent thereto in their Turns, the Advowſon is ſeve-
red from the Manor, and doth remain in Coparcenary, and in grofs
and
yet if all the Siſters die, ſave her that had the Manor, to which
the Advowſon was appendant, the Advowſon is again appendant to the
Manor. H. 7. Br. Incident 14.
Likewiſe an Advowfon appendant may be made diſappendant by tor-
tious Acts; as if a Perſon feiſed of a Manor in Tail, to which an Ad-
vowſon is appendant, doth alien fome Part of the Manor, with the
Advowſon, and then the Alienee doth grant the Advowſon to a Stran-
ger, the Advowſon is made diſappendant; yet if after, by bringing a
Formedon, the Land aliened be recontinued to the Iffue in 'Tail, the
Advowſon alſo is reveſted again in him, as appendant to the Manor,
and not to that Part of it only which was aliened, and from which it
was ſevered by the Grant. 19 H. 6. 30. 1 Inft. 363. b. and the like
Law maybe in the Caſe of Diſſeiſin : So if a common Perſon hath an
Advowſon as appendant, and a Stranger doth preſent his Clerk, who
is in by fix Months, the Advowſon is made diſappendant, until ſuch
Time as the rightful Patron hath re-continued it by his Writ of Right.
But in the Caſe of the King, a Preſentment of a Clerk to his Church,
who is in by fix Months, makes no Diſappendancy, becauſe it puts not
the King out of Poſſeſſion. Mich. 13 and 14 El. Hobart 140. 18 Eliz.
3 Leon. 61. Mich. 14 El. 3 I eon. 17.
King's Pre-
If the King doth preſent to a Church of another's Right, that is ap-
pendant by theſe Words; Ad noſtram Præſentatione11 Jure Prerogati-,
ce Corona notra Angliæ fpe&tant', or Ratione Lapus, ſuch Prefont-
ment ſpeaking of, and ſuppoſing a Right, where there is ncne, is void,
makes no Diſappendancy; or if the Preſentation had been made to a
Church
Turns.
By tortious
Aas.
Diffeifin.
Upon the
ſentation.
1
Chap. VIII.
71
The Complete Incumbent.
© C.
Church really lapſed, yet that makes no Diſappendancy neither. tight of
Patronage.
So if the King, without Right, preſent by theſe Words, Ad 110-
Stram Præſentationem five ex pleno Jure, fire per Lap/2012 Temporis,
five alio quocunque modo ſpeštant; ſuch his Preſentment makes no
Diſappendancy or Uſurpation : For when the King doth preſent
by Wrong (to the making of an Uſurpation and Diſappendancy,)
in his Preſentation he muſt not report any Right, but muſt preſent to
the void Church generally, and require Admiſſion. Hill. 11. Jac. Gaw-
dy v. Biſhop of Canterbury, and others. Hobart 302. Sir Johil Tufton v.
Sir Rich. Temple, & al. Hill. 17 Ú 18 Car. 2. Vaugh. 14.
But Note, it has been generally receiv'd for Law, That if one who Uſurpation,
is not a rightful Patron, do in due Form of Law without any corrupt
Contract preſent a Clerk to a preſentative Living, and in Time of
Peace, and ſuch Preſentation take Effect, and Inſtitution and Induction
be had thereupon, and the Clerk remains Six Months in Poffeffion be-
fore the true Patron commence his Suit; he thereby becomes a lawful
Incumbent, and may enjoy the Living during his Life.
And though formerly the true Patron might on the next Avoidance
recover his ancient Right in many Cafes, yet he could not do it in all,
but in ſome was for ever barrid of any Remedy, (ſee hereafter Ch. 13.
But this Miſchief is now remedied by the Act of 7 Anna, for preſer- Stat. ?. Anne
ving the Rights of Patrons to Advowlons, whereby 'tis now provided, cap. is.
That he, or me, that would have had a Right, if no ſuch Uſurpation
had been, may preſent, or maintain a Duare Impedit upon the next,
or any other Avoidance, notwithſtanding ſuch Uſurpation, &c.
See the ſaid Statute at large, at the End of the next Chapter.
C HA P. VIII.
Of the Right of Patronage, to whom it ſhall
be ſaid to belong. Of Coparceners, and Te-
nants in Common. And of the Statute
7 Annæ, of preſerving the Rights of Pa-
trons to. Advowſons.
acquired.
HESE Things being premiſed, we may more eaſily ſee how, Right of Pa-
or by what Means the Right of Patronage may come to any tronage, how
Perſon: If we conſider it with reſpect to its Original, we may fay, it
is acquired only by theſe two Means, (viz.) Either by being the fole
Founder and Erdower of a Church, for thereby a Perſon doth make
himfelf abfolute Patron of ſuch Church, and may reſerve to himſelf,
his Heirs or Succeſſors, the Right of conferring to the fame, ſo oft as
it ſhall happen to become void. Paſch. 9 E. 3. Quare Impedit 30. Or
clſe not by founding or building a Church, but by giving the Land upon
which it is built; or only by endowing the fame with Land, or other
Profits and Immunitics, after it is built; that is, If upon the Occaſion
of any of theſe Acts, the Ordinary, by his Ordinance, and other Per-
fons (whoſe Confents are requiſite in this Behalf) by thcir Agreement,
5
do
2
72
The Clergy-Man's Law: Or, Chap. VIII
and Endow-
er.
Tis.
ceners.
Turns.
Hight of do ſettle the Advowſon of the Church upon ſuch Founder or Endower
Patronage.
reſpectively, their Heirs or Succeſſors. Doderidge's Complete Parſon,
By Founder p. 56. and 25. Hughes's Abr. Tit. Advowſon.
'Though the Commencement, and firſt Titles of Advowſons came
by Founding or Endowing of Churches, and thereby the firſt Proprie-
tors gained a Right, not only to themſelves, but alſo to their Heirs and
By Deſcents. Succeſſors for ever; and ſuch their Heirs are ſaid to have thein by De-
ſcent: Now as to Deſcents, there cannot be any Deſcent thereof from
Pollefio Fra-
the Brother to the Siſter of the entire Blood, by the Maxim of Pofleffio
Fratris, &c. but the ſame ſhall deſcend to the Brother of the half
Blood, unleſs the firſt hath preſented to it in his Life-time, and then it
Shall deſcend to the Siſter, The bing the next Heir of the entire Blood:
19 E. 2. Fitz. Quare Impedit 177. Co. Lit. 15. b. which is to be un-
derſtood of Advowfons in grofs only.
By Four Si If an Advowſon doth deſcend to Four Coparceners, and the Church
fters Copar- after the Death of their Anceſtor doth become void, if they do not all
See the Stat. agree in a Preſentment, the Clerk of the eldeſt Siſter ſhall be received;
7 Anna.infra. and at the ſecond Avoidance, the ſecond Siſter ſhall prefer her Clerk;
and ſo the reſt in their Order. 21 E. 3. 38. Mich. 12 H. 7. Kiel. p. Co.
Lit. 18. b. 17 E. 3. 30. 37. 21 E. 3. 39. 35 H. 8. Dyer 55. 19 E. 3.
Quare Impedit 59. 13 E. i. Rot. 3. Or if they do agree for one or
more Turns to preſent jointly, and after do not fo agree, the eldeſt Si-
fter ſhall preſent to the void ſurn, and the reſt to the after-Avoidances,
according to their Seniority. Paſch. 34 and 35 H. 8. Dyer 55. And this
Privilege given to the eldeſt of preſenting firſt, ſhall go to her Iſſue and
Aſſigns. 24 E. 3. 52. Co. Lit. 166. b. 186. b. And alſo to her Husband,
Courtelic. as Tenant by Courteſie. Paſch. 25. El. Horris and Hays v. Nicholsó
3 Cro. 18. Co. Lit. 186. b. 166. b. but Coparceners are compellable to
Partition make Partition ; if they do make Compoſition to preſent, it may be
done without Writing, becauſe they are all privy, and as one Heir by
the Common Law. Hill. 28. H. 8. Dyer 29. 1 Inft. 169. d. Roll's Abr.
2. p. 255. 1 Inft. 196. A. But if ſuch Compoſition be made againſt
Common Right, as that the eldeſt, after ſhe hath preſente donce, Thall
preſent in the ſecond Turn, then it doth not bind without Deed.
3. 38. But properly ſpeaking, Coparceners cannot make Partition
Nor of an of an Advowſon in grofs, as to the Right, for that it is entire; for
Advowſon in tho' they make Partition, yet this is but as to the Preſentment, ſtill the
grofs.
Advowfon doth continue in Right in Coparcenary, for they ought to
join in a Writ of Right afterwards. Roll's Abr. 2. p. 255. Corbet's Cafe.
i Co. 87. a. But the Law herein ſeems to be now altered by virtue of
Severance of the ſaid Statute 7 Anna, which ſee infra. But if a Manor to which
an Advowſon an Advowſon is appendant, deſcends to Two Coparceners, and they
make Partition, and the Manor is allotted to the one, and the Ad-
vowſon to the other, this is ſaid to make a Severance of the Advowſon
in Perpetuity from the Manor. Hetley. 14. which admits that the Parti-
tion in this Cafe muſt affect the Right as well as the Poſſeſſion ; and it
is faid, that anciently Advowfons were not partable among Coparce-
ners at Common Law. Miror 107. So Tenants in Common of an Ad-
vowſon, (which are ſuch who have equal Right to an Advowſon, but
Compoſition hold by divers Titles) if they make Compoſition to preſent by Turns,
in Common. it muſt be in Writing ; and till each of them have preſented according
to his Turn, by Vertue of the Compoſition, if a Quare Imped! b
brought betwixt them, it is neceſſary to fhew the Compoſition, bec:uſe
17 E.
from a Ma-
nor.
{
Chap. VIII. The Complete Incumbent.
73
*
it was not executed; but otherwiſe, after it ſhall be executed. Hill, light of
Patronage.
28 H. Dyer 29.
If Partition be made, and an Advowſon aſſigned to one Coparccner By Alúgn-
in Chancery, the others being within Age, yet at their full Age they Chancery
:
may preſent, either according to the Compoſition, or by Turn, as if no.
Compoſition had been made. 17 E. 3. 37. b. 30. b. And if an Advow-
ſon be allotted in Chancery to the youngeſt Coparcener, ſhe may pre-
ſent, and maintain her Quare Impedit againſt the others, until it be de-
feated. 17 E. 3. 38. Co. Lit. 171. b.
If an Advowſon doth deſcend to two Coparceners, the one being ByGuardiana
within Age, and in Ward, and the Guardian doth marry with the el..
der, and after the Church being void, the Guardian doth preſent in the
Name of both Siſters, this ſhall not ſerve for any 'Turn to the eldeſt,
but at the next Avoidance, if they cannot agree in preſenting, the Eldeſt
ſhall preſent alone, as if no Preſentation had been made, after the De-
ſcent to them. Dyer, 35 Hen. 8. 55.
If a Coparccner of an Advowſon, or any other that hath Title to Patron's
preſent to an Avoidance, doth in his Courſe preſent his Clerk, who by Turn faved.
being Preſented, Inſtituted and Inducted, and by performing all Things vation,
required by Law in ſuch Caſe, is become Complete Incumbent, tho’
he be afterwards deprived for Crime, or other Caufe, yet that ſhall
ſerve for his Patron's Turn; and he that hath the Right of preſenting
next, ſhall preſent upon ſuch Avoidance. But if after Preſentation,
Inſtitution and Induction, the Church is not only voidable, but actually
void, by reaſon that the Law pronounceth the Adnıſſion, Inſtitution
and Induction of the Clerk preſented, meerly void, as for not Sub-
ſcribing, or not Reading the Articles of Religion, Gr. whether the
Church be declared void by Sentence, or not, the Preſentation, Inſti-
tution and Induction, in ſuch Caf, ſhall not ferve for a Turn, but the
Preſentor may preſent again. Paſch. 41. El. Windſor's Cafe, 5 Co. 102.
That is, unleſs the Preſentation, &c. of his Clerk were void by Si- Simony:
mony, in which Caſe the Turn goes to the King; and then he that
hath the next Turn after him, muft expect till the Church doth be-
come void of the King's Incumbent. But if Simony be committed in
gaining Inſtitution or Induction, the Clerk being inſtituted and inducted,
makes a Plenarty, and he that preſented him having but that 'Turn,
ſhall not preſent again, tho' the Church by ſuch Simony be alſo void,
but he that hath Right to the next Avoidance. Stat. 13. El. c. 6. and
in Winchcomb and Pulleſtor's Cafe. Paſch. 14. Jac. Hob. 167.
Or if a Patron doth preſent one that obtained his Orders by Simony, Orders ob-
at any 'Time within Seven Years after his corrupt Entring into the Mi- tained by Sid
niſtry, the Living is not void till after Induction, Inveſting, or Inſtalla-
tion; and therefore there being once a Plenarty, if he that preſented
had but one Turn that is ſatisfied, and he that hath the next ſhall pre-
fent, in JVinchcomb and Pulleſtor's Cafe. Paſch. 14. Jac. Hob. 167.
So if one that hath a Turn doth prefent one that is Mere Laicus, Mere Laicus
who is Inſtituted, &c. and it be declared by Sentence, that he was un-
preſented.
capable of the Church, and therefore that it was void ab initio; yet
for that the Church was full, until the Sentence Declaratory came,
this ſhall ſerve for a Turn, as is ſaid. Paſch. 41 El. Il'indfür's Cafe,
5 Ço. 102. But of this I doubt ; for in the fime Cafe 'tis faid, That Q? If not.
where the Admiſſion and Inſtitution are made mecrly void, then with- void by 13 E;
out doubt it ſhall not ferve for a Turn; and in caſe a meer Layman,
who is no Deacon, be admitted, inſtituted and inducted to any Benefice
U
with
mony.
lize, 6. 12.
74
The Clergy-Man's Law: Or, Chap. VIII.
Nora.
de novo.
Stat. 7 Anna
cap. 18.
For more ea-
of Patron's
IR igirt of
with Cure, ſuch Admiſſion, Inſtitution and Induction are meerly void,
Patronage.
as if they never were, by Stat. 13 Eliz. C. 12. Beſides, this fanie Café
is reported both by Croke and Moor, and no ſuch Matter as this which
Coke mentions, concerning a meer Layman being preſented, is taken
Notice of by either of them. But if an Incumbent of a Church be
legally deprived, and he that hath the next Turn doth preſent his Clerk,
who thereupon is admitted, &c. If afterwards a Sentence doth come,
by which the fecond Clerk is deprived, and the firft reſtored by Force
of the firſt Preſentation, Inſtitution, ci and dies Incumbent, tho' the
fecond Clerk was Incumbent, for the Tinie, to all Purpoſes, and the
firſt, for that 'Time, no Incumbent; yet the Prefentation and Incum-
Preſentment bency of the fecond Clerk ſhall not ſerve for a Turn, but he that
preſented the ſecond Preſentee ſhall prefent again, after the Death
or Removal of the firſt. But if the firſt Clerk had died before the fem
cond Sentence, or had not reverſed the former Sentence, he that pre-
ferred the ſecond Clerk had enjoyed his Turn. Paſch. 40 El. Loveden v.
Windſor and Hitch. Moor 558. Paſch. 41 El. Windfor's Cafe. 5 CO. 102.
Same Caſe. 3 Croke 686.
Note: For remcdying of fome Inconveniencies in the Law, as it
ſtood on 13 Ed. 1. c. 5. with reſpect to Uſurpations of Rights of Pre-
ſentation, and the Incertainty of the Rights and Intereſts of Coparce-
ners, Jointenants, and Tenants in Common, in Advowſons, &c. a
Statute was made 7 Anne, Entitled, An Act to preſerve the Rights of
Patrons to Advowſóns, viz.
Sect. 1. Fouaſmuch as the pleading in a Quare Impedit is found very
Sy Recovery difficuit, whereby many patrons are either defeated of their Rights of
Rights.
Pieſentation, oz put to great Charge and Trouble to recover their
Right, which is occafioned by the Law, as it now is : For Remedy
No Uſurpa- whereof be it enađed by the Dueen's moft ercellent Majeſty, by and
place the
with the advice and Conſent of the Louds Spiritual and Temporal,
and Commons in Parliament afſembled; and by the Authority of the
* Vid. 13. E.1. ſame, * That no Āfurpation upon any avoidance in any Church, Wi-
Sat. 1. Por. caridge, or other Ecclefiaftical Promotion fhall diſplace the Eftate of
cap. 13.
Intereſt of any perſon entitled to the advowlon 02 Patronage there-
Or hinder
of, oj turn it to a Right; but he oz fhe that would have had a Right,
maintaining
& Quar. Imp. if no Uſurpation had been, may preſent ay maintain his or her Quare
on any A Impedit upon the nert, up any other Avoidance (if diſturbed), notwith-
ftanding ſuch Uſurpation.
Coparceners, Sećt. 2. And të Coparteners, op Jointenants, oz Tenants in Com
Jointenants; moni, be ſeized of any Ettate of Inheritance in the Advowlon of any
in Common Church o2 Uicaridge, oj other Ecclefiaftical Promotion; and a Par-
after Parti- tition is or thall be made between them to preſent by Turns, that
tition, to
preſent by
thereupon every one ſhall be taken and adjudged to be ſeized of his
Turns, and of her ſeparate Part of the advowſon, to preſent in his or her Turn.
As if there be two, and they make ſuch Partitioni, each ſhall be ſaid
ſeized repro
rately. to be ſeized, the one of the one moiety to preſent in the firt Turi,
the other of the other cooiety to preſent in the ſecond Turn. In like
zanner, if thereby three, four, or more, every one ſhall be ſaid to
be ſeized of his or her Part, (i. . ſeparately) and to preſent in his oz
per Turn.
Note, The Words included in Parentheſis in SeEt 2. are not in the
Act, but are inſerted only by way of Explanation: To which
End, we may further obſerve on the faid Statute,
Fift, As to the Words, difplace the Eſtate, &c. in Se&t. I.
СНАР.
rion ſhall dif-
Eftate.
voidance.
each to bc
2
Chap. IX.
75
The Complete Incumbent.
:,
1
CHAP. IX
Aiglit of
jelentas
tion.
Right of Prefentation, by what Means it may
paſs from one Perfo:14 to another. How it
may come to the King by Prerogative ; of
the Lord Chancellor's Right, and of the
Archbiſhop's Right of Option, &c.
1
.
ز
IFE
F we conſider the Right of Patronage, as in the Hands of others By A&t, Con-
ſent or Nega
than the Founders and Endowers of Churches, their Heirs or Suc- lect
.
ceſſors, we may fay, that it may come to a Perfon, either by the Act of
the Law, or by the Act and Conſent of the Perſon entitled to it, or
by his Fault or Neglect: In fome of which Reſpects it doth pafs only
in Part ; in others, fometimes in Part, and ſometimes wholly.
By the Act of the Law, the Right of Patronage may wholly paſs By A& of
to a Stranger : For when there is no Heir, General or Special, to whom Law for want
the Land or, Manor to which an Advowfon is appendant doth de-
ſcend, the Advowfon, with the Land or Manor, doth eſcheat to the
Lord of that Manor of which fuch Land or Manor was held. Co. Litt.
122. And it is ſaid, That if a Man doth grant an Advowfon in grofs,
to another in Fee, and the Grantee doth die without Heir, it ſeems
that this ſhall revert to the Grantor, nat being held of any Man; for Reverter.
'tis a Thing which cannat vaniſh, but ought to be in fome Perfon : But
in that Cafe, if the Grantor cannot have it, the King ſhall have it as To the King
Supremie Patron; and for that Reaſon ought to preſent, where no other
hath Right. Roll's Abr. 1. 816.,
Alſo by the Act of the Law, the Right of Patronage doth paſs in Palling in
Part ; that is, the Right of preſenting for one or more Turns; or for Part.
fo many as ſhall happen within a certain Time, from the Heir, upon
the Account of Marriage, and from him and others upon the Account
of Death, and of Prerogative. Accordingly, if a Feme that hath an
Advowſon, or Part of an Advowfon, to her and her Heirs, doth take
an Husband, the Husband may not only prefent jointly with his wife,
or in his own Name, during the Coverture, but alſo having Iffue by By Husband.
her, after her Death, (tho' the Right of Patronage (ſo far as it was Tenant by
the Courte
in the Wife) deſcends to her Heir, and tho' the Wife did never preſent fie,
to it, but died before the Church voided) the Right of Preſenting du-
ring the Husband's Life is lodged in him, as Tenant by Courteſie, tho
his Wife had but a Seiſin in Law, becauſe he could by no Induſtry at-
tain to any other Seiſin. i Inft. 29. Q. And if the Church, in this
Caſe of the Husband, void during his Life, and then he die before the
Church is filled, yet the Heir ſhall not have the Turn, but the Hus- By his Exe;
band's Executor ; and ſo is the Law in moſt Caſes, where the Intereſt curor.
determines after the Church is void, and before Preſentment, by Finch,
38 E., 3; 36. Bro. Preſentation aí Egliſe 18. 21 H. 6. 56. if the
Church" being void, the Wife dies, having had no iſſue, fo that the
Husband is not Tenant by Courteſie, yet he ſhall preſent to the void
Turn. :1 H.6. 56. b.
codecs
If
76
The Clergy-Man's Law: Or, Chap. IX.
the life.
er, Soci
Turn a Chat-
sel.
Light of
If a Man that is feiſed of an Advowſon takes a Wife, and dies, the
Preſenta
lion.
Heir ſhall have Two Preſentments, and the Wife the Third ; yea, and
tho' the Husband in his Life-time had granted away the Third Turn.
Two Thris William's Cafe, o. Biſhop of Lincoln, and the Bailiff and Burgeſſes of
and one by' Bedford. 2 And. 173. Trin. 28 H. 8. Dyer 35. b. That is, The Wife
may in a proper Action, recover the Third Preſentation as her Dower,
or it may be aſſigned to her for her Dower, but without ſuch Recovery
or Aſſignment the Wife cannot make Title to the Advowfon, or to
any Preſentation, no more than ſhe can enter by her own Authority into
As her Dow- any other Lands or Tenements to which ſhe hath Right of Dower.
i Inft. 32. 6. 34. b. 37. Or if a Manor, to which an Advowfon is ap-
pendant, doth defcend to an Heir, and he aſſigns Dower to his Mo-
ther of the Third Part of the Manor, cum pertinentiis, ſhe is there-
by endowed of the Third Part of the Advowſon, and may have the
Third Preſentment. Doderidge in his Deſcription of Advowfons, p. 6.
Preſentation In the ſecond Place, as the Right of preſenting for. one or more
palling upon Turns, doth paſs from him that is ſeiſed of the ſame to others, upon
Death. the Account of Marriage, fo upon the Account of Death: For if a Te-
ſtator hath only a next Avoidance by Grant, and having made his
Will, dieth whilſt the Church being full of an Incumbent, or void,
the Avoidance or 'Turn not being deviſed by Will, the Right of Pre-
fenting thereto doth go to the Executor; and in caſe, when the Church
is not fallen void, the Executor may make a Grant of that Turn to
another, before he proves the Will. Mich. 3 and 4 Phil. and Mary:
Smithly v. Cholmly. Dyer 135. Plt. 13.
So, if one feifed of an Advowſon in Fee, and the Church doth be-
come void, the void Turn is a Chattel ; and if the Patron dieth be-
fore he doth preſent, the Avoidance doth not go to his Heir, but to his
Executor. Mich.
3.1
and
32
El. the Queen and Fane v. Archbiſhop of
Canterbury. 4 Leon. 109. i Inſt. 388. a.
But if the Incumbent of a Church be alſo feiſed in Fee of the Ad-
vowſon of the ſame Church, and die, his Heir, not his Executors, ſhall
preſent; for altho' the Advowſon doth not deſcend to the Heir till
after the Death of the Anceſtor, and by his Death the Church is be-
bome void, fo that the Avoidance may be ſaid in this Cafe to be fe-
vered from the Advowſon before it deſcend to the Heir, and veſted in
the Executor ; yet both the Avoidance and Deſcent to the Heir hap-
pening at the fame Inſtant, the Title of the Heir ſhall be preferred
as the more ancient and worthy. Mich. 33 Car. 2. C. B. Hult v. Epiſ-
copum Winton', &c. 3 Levinz 47.
If thc Teſtator preſent, and his Clerk not being admitted before
his Death, then his Executors preſent their Clerk, the Ordinary is at
his Election, which Clerk he will receive. Trin. 31 Eliz. Smallwood,
&c. v. Biſhop of Litchfield and others. i Leon. 205. Savil 95, 118.
Diſturbance. If a Diſturbance be before the Patron's Death, his Executors, by Spe-
cial Writ upon the Cafe, may recover the Preſentment, and prefer
their Clerk, by the Equity of the Statute of 4 Ed. 3. and in ſuch
Cafe, if the Executors bring their Action upon the Diſturbance made
to the 'Teſtator, and yet ſhew that the Church ſtill continues void, ſo
that they might preſent themſelves, or bring the Action upon a Di-
ſturbance made in their own 'Time; yet the Declaration is good, for
that the ſhewing that the Church ſtill remains void, are but Words
of Form. Smallwood's Cafe before. i Anderſon 241. Mich. 32 Eliz.
C. B. Leonard 4. Cafe 53. and Spoile, Cafe 174, 188. And if the
Teſtator
V
Incumbcnt
ſeired and
dies.
Teftator and
Executor.
Executors.
Action by
1
Chap. IX. The Complete Incumbent.
77
tion.
i
Induction
on-
Teſtator be diſturbed in preſenting, and in a Quare Impedit doth reco- Right of
Bielentas
ver, and then dies, the Heir ſhall not have Execution, becauſe it is
not a real Action, but the Executor, Brownlow and Gouldsborough 1.
158. and by Rhodes in Beverley and Cornwall's Cafe. Mich. 29 El.
C. B. i Leonard 63. But if a Husband be diſturbed in prefenting to Husband and
an Advowſon which he held in the Right of his Wife, and dies, 'tis Wife.
faid, that the Wife ſhall have a Quare Impedit for this Diſturbance.
3 E. 3. Fitz. Quare Impedit 57. 3 H. s. Quare Impedit 71.
But in the Caſe of a Biſhop, the void Turn of a Church, the Ad- Biſhop ſeifed
vowſon whereof he is feiſed in the Right of his Biſhoprick, by his and dieth.
Death doth not go to his Executor; but when the Temporalities of
the Biſhoprick are feifed into the King's Hands, the King doth not on-
ly preſent to ſuch Benefices as become void during the Sciſure, 18 E.
3. 31. b. 21 E. 3. 5. a. 29. a. 30.... 24 E. 3. 26. 5 E. 2 Fitz Quare
Impedit 165; 19 E. 2. Quare Impedit 178. and as were void after the
the Death of the Biſhop, and before the Seiſure, 12 E. 3. Fitz Quare
Impedit, 56 by Shard, but alſo of all ſuch as were void when the Biſhop
died. 50 E 3. 26. 9 H. 6. 16. b. Admit. 24 E. 3. 26. Lib. Parb. 21
E. 1. Prior de Bermondſea's Cafe. 24 E. 3. 30. 1 Inft. 90 b. and 388. a.
Yea, and to ſuch to which the Biſhop had at any Time prcfcnted or
collated, if his Clerks had not taken as well Induction, as Inſtitution the King
ly fills againſt
or Collation before the Biſhop's Death, becauſe nothing but Induction
fills the Church againſt the King. Liber Parliamentor 1912, 21 E. i.
the Prior of Bermondſea's Cafe, adjudged in Parl. 24 E. 3. 30. II
H. 4. 9. 6. Fitz. N. B. 34. k. 36. k. 38 E. 3. 3 and 4. Hobart's Rep.
208. much more to ſuch to which the Biſhop had only preſented, and
to which his Clerk was not inſtituted, 44 E. 3. 3. and if the Biſhop
doth die the fame Day after Induction, the King is not barred. 44
E.
3. 3. Yea, and whether the King doth of Grace grant the Tempora-
lities before Conſecration, or Livery of them be ſued out of the King's
Hands afterwards by the Succeſſor ; the King, tho' he hath not then
preſented to ſuch Benefice, the Right of Preſenting to which came to
him by reaſon thereof, may at any Time after preſent to the fame.
18 E 3. 1. a. 24 E. 3. 26. b. And the Privilege that the King hath The King's
of Preſenting, by reaſon of the Temporalities of a Biſhoprick being Privilege by
in his Hands, ſhall be extended unto fuch Preferments, unto which the Temporali-
Biſhop, of Common Right, might preſent, tho' by his Compoſition ties.
he hath transferred his Power unto others. And therefore when the
Temporalities of the Archbiſhoprick of York are in the King's Hands, the
King ſhall preſent to the Deanery of York, altho' by Compoſition be-
twixt the Archbiſhop and the Chapter there, the Chapter are to elect
him: and this becauſe the Patronage thereof, de Jure, doth belong to
the Archbiſhop, and his Compoſition cannot bind the King, who comes
in Paramount, as Supreme Patron: For of the whole Biſhoprick the
King is Supreme Patron, altho' it be diſmembred into divers Branches,
as Deans, and other Dignities; and of ancient Time all the Biſhopricks
were of the King's Gift; but after the King gave Leave to the Chap-
ters to elect, yet the Patronage notwithſtanding remains in the King.
17 E. 3. 40. And if the Caſe be ſuch, that the King doth preſent
to a Church void Ratione Temporalium Epiſcopi ſede vacante ; and
before Inſtitution doth repeal his Preſentnient, and the Repeal notwith- Repeal of
ſtanding, the Preſentee is afterwards inſtituted and inſtalled, although Preſent-
that the King reciting that the Preſentee was canonically inſtituted up-
on his Preſentation, doth ratific and confirin the Preſentation, ſo that
X
ſuch
1
ment.
78.
The Clergy-Man's Law: Or, Chap. IX.
Caution.
on.
Qu
Plea.
Bing's Pies ſuch Clerk: is taken to to be, and doth die as Incumbents after a new
rogative.
Biſhop is created, yet the King ſhall preſent again, as if he had never
preſented, becauſe the Clerk was never in ex Præſentatione Regis,
and fo the Confirmation void. Trin. 12 Eliz. Dyer 292. It concerns
the Biſhop therefore to ſee that the King preſent upon ſuch Intruder, or
to declare the Church void judicially, and to fequefter it, if the King
will not preſent. But if a Biſhop, being Patron of a Church, doth collate
thereto, and the Biſhoprick becoming void, the Biſhop's Clerk is elect-
ed Biſhop of the fame Biſhoprick, and then the King doth grant to him
his 'Temporalities before Conſécration, the King ſhall not preſent to
his Benefice that was voided by his Confécration, but the new Biſhop,
Confecrati- becauſe it was not void before the Conſecration, at which Time the
Temporalities were not in the King's Hands; but otherwiſe it had
been, if the Biſhop bie confecrated before he hath the Temporalities.
41 É. 3. 5. Br. Preſentation, &c. 3. 46 E. 3. 32. But Quære of this
Cafe, becauſe the King had alſo a Right to preſent by his Prerogative,
the Incumbent being made a Biſhop; fo that although the granting a-
way the Temporalities before Conſecration, had prevented the King's
Right of preſenting, by reaſon of the Avoidance of the Biſhoprick, yet
it did not give away the King's other Right, which he had by the In-
cumbent's being made a Biſhop.
If the King doth bring a Quare Inpedit for a Church, upon the Ac
čount that he hath Title to preſent, the Temporalities being in his
Hands, and dotk alledge, that they were in his Hands, by the Death
of A. it is no Pléa to ſay, that the Church did not void during the
'Time that the Temporalities were in the King's Hands by the Death
of A. late Bishop; for if they were in his Hands by the Death of any o-
ther, or by other Means, yet the King fhall prefent. 2:4 E. 3. 26.
King's Pre Laſtly, The Right of Prefenting doth go from him that is Teiſed of
rogative fa- the Patronage to the King in other
Cafe's
, by reafon of his Prerogative:
For tho'it hath been a Queſtion, Whether (when a Church becomes
void; by creating the Incumbent thereof a Bifhop) the King, or the very
Patron of the Church, fhall preſent upon ſuch Avoidance? And anci-
ently the Law was taken to be, that the rightful Patron ought to pre-
ſent. 2i H. 4. 97. or 34, 41. E. 3. 5. 5 E. 3. Fitz. Quare Impedit 35.21
E. 3. 40. 7 H. 4. 25; 26.44 E. 3. 25. and Temp. E. 1. Quiere Impedit
181. Hil. 6. El. Dyer 228. Mich. 38 and 39 E. Wentworth v. Wright.
3
Cro. 527. and Hil.41 El. in Owen 144. However, the King's Prero-
gative in ſuch Cafe hath been favoured of late, and
the Law
taken to
bé, that the King fhall preſent upon ſuch an Avoidance. 41 E. 3. 5.
Br. Preſentation al' Eglife 27. 5. Marize preſent. al Egliſe 61. Mich.
42 El. Sir Robert Ballet v. Gee. 3. Cro. 790. Mich. 22 Jac: Woodley v.
Biſhop of Exeter, Manwaring and Edwards. 2 iGro. 691. by Winch.
Contra Hutton. Roll's, Tit. Preſentment, p. 343. Paſoh. 37 El.Wright's
Cafe. Möör 399. Paſch. 19 Car. 2. Henry Edes v. Möller Biſhop of Ox-
förd, Vaughan 19. And this (however repugnant of Reaſon) hath
lately beën fettled accordingly in the Caſe of the Bifhop of London,
and Dr. Birch v. the Attorney-General for the King, and in the Caſe
of the King and Queen v. the Biſhop of London and Lancaſter. Mich.
s W. and M. 3 Levinz 377, 282. Caſes in Parliament 164. Vide poft.
If the King
Notwithſtanding if the King doth not take the Benefit of the firſt A-
Stranger to voidance, but ſuffers a Stranger to preſent, and the Stranger's Preſentee
preſent
to die Incumbent, his Prerogative ſhall not be extended to give him
voured.
C. I 2.
ſuffers a.
3
the
Chap. IX. The Complete Incumbent .
72
Retinere.
the Right of Preſenting afterwards. Mich. 42 El. Sir Robert Baflet v. king's Pa*
Gee. 3 Cro. 790.
Cro. 790. And ſo if a Benefice be held with a Biſhoprick by
Commendam Retinere, and the Biſhop došli afterwards reſign the Bene-
fice, the Patron, and not the King, ſhall preſent: Sce Mich. 6 and
7
El.
Dyer 233. Noy 138. contra. Or if ſuch Biſhop doth not reſign, but
is tranſlated to another Biſhoprick, (in which Cafe, the Benefice which
he held with his firſt Biſhoprick becomes void) the rightful Patron, and
not the King, ſhall preſent thereto (Quere.) And
ſo the rightful Patron
ſhall preſent, if the Church held by Commendam Retinere doth fall yoid Commendam
by the Death of the Commendatory, for otherwiſe the rightful Fa-
tron may be ever kept from preſenting. Mich, 22 Jac. Woodley v.
Biſhop of Exeter, Manwaring and Edwards. 2 Cro. 691. Coke's En-
tries 474. Hele's Cafe. See Roll's Abr. Tit
. Preſentment, p. 344. Noy
138. contra. And that the Patron ſhall preſent upon the Death of the
Commendatory, was adjudged per Curiam, in the Caſe of Hen. Edes
v. Walter Biſhop of Oxon, for the Living of Chinner, within that Dio-
ceſe. Paſch. 19 Car. 2. Vaughan p. 18. And the Rcaſon of the Lais
in theſe Caſes, is not only becauſe that the Church in ſuch Cafes is
void, otherwiſe than by Creation, in which only Prerogative takes
Place; but becauſe the King by granting, that the Biſhop ſhall hold
the Church by Commendam, that would be otherwiſe void by Creati-
on, doth thereby take the Benefit of his Prerogative, in that Way that
beſt pleaſeth him: For his Grant to hold the Church in Commendam,
in fuch Cafe, is as it were a Preſentation, and as advantageous; and
therefore if a next Turn be granted to another when the Church is full
of him that afterwards is made Biſhop, and the King doth grant, that
the Church ſhall be held in Commendam, the Grantee of the next A-
voidance hath loſt his Turn, as much as if the King had prefented ; and
that the very Patron, and not ſuch Grantec, thall preſent when the
Church is void of the Commendatory. Woodley v. Bishop of Exeter,
and others before. Which plainly proves, that a Grant to hold in
Commendam, is as much as to preſent, and fhall ſerve for the King's
Turn which he hath by his Prerogative. But Quære of this Çafe con-
cerning the Grantee of the next Avoidance, for that 'tis agreed by all
the Books, that a Commendam Retinere prevents the Avoidance, and
that by reaſon thereof, the Church did not become void by the Incum-
bent being created Biphop; and therefore 'tis hard to conceive any good Grant to
Reaſon why he that hath Right to preſent to the next Avoidance, mendam, is
Should be debarred thereof by the Conimendam, which prevented, but as to much
made no Avoidance by the Incumbent's being created Bichop: Beſides, as to pre-
'tis faid, That if the King hath the next Turn, and he grants a Faculty, If a Com-
or Diſpenſation, to the Incumbent, being elected Biſhop before Confe- mendam Re-
cration, to retain his Benefice, this fhall not amount to a Preſentation ninere, pre-
to ſatisfy the King's Turn, but that after the Death of that Incumbent, Avoidance.
the King ſhall preſent again. Davis 77. 13 H. 4. 76, 80. But this, itiş
true, is only the Opinion of Counfal, the other the Refolution of the
Judges ; 'but it hath heen adjudged, That if the King Grants a GOIN-
mendam Retigere for fix Months only, ør for two or thrce Days more
than fix Months, if it be granted before the Incumbent is confecrated
Biſhop, the King's. Prerogative shall take-Place at tủe Time the Churh
becomes void, when the Commen dan is .expired. Mich.5 W. & M.
B. R. Rex Regina v. Epiſc' Londoni & Loncaftr', and Biſhop of
London and Dr. Birch v. the Attorney ;pro Domino Rege & Regiona,
Cafes in Parliament :164.3 Levinz 377, 38.2.4 Mod. :190, 200... Show.
364. 2 Sal. 540.
Yet
80
The Clergy-Man's Law: Or, Chap. IX.
Gibſon's Code
804
Telu. 91.
on ;
by Lord
CC
CC
Loid Chan Yet it is ſaid, If a common Perſon uſurp upon the King, and his
celor's
Clerk is inducted, altho' the King hath Right, and may remove him by
Right.
Vide Biſhop under the great Scal, the Benefice is thereby aſſured to him againſt the
Vide Bihop due Courſe of Law; yet if fuch Clerk obtains the King's Confirmation
King. But if the King himſelf preſents and revokes ſuch Preſentation
Vaugh. 26. before Induction, and afterwards the ſame is inſtituted and inducted,
tho'the King ratifics and confirms ſuch Incumbency to the Preſentee as
inſtituted ex preſentatione ſua, yet the Ratification ſhall be void, be-
cauſe the Preſentation being revoked, the Clerk was never in ex preſen-
tatione Regis, and ſo there was really no ſuch Title to be ratify'd; and
in like Manner it ſhall be void if obtained in any Caſe before Inducti-
Becauſe the Church not being full, nor the Clerk poſſeſſed thereof
"againſt the King before Induction, till that be had, there is really no
Poffeffion to be confirmed. Vide ante.
Preſentment Note, That the Lord Chancellor, or Lord Keeper of the Great Seal
for the Time being, have the Privilege of preſenting to the King's Be-
Chancellor, nefices under the yearly Value of twenty Marks, viz. in the King's
Books. 38 E. 3. 3. 8, 9. Br. Quare Impedit 65. But as I take it at this
Day, the Uſe is for the Chancellor to preſent to Livings under the
yearly Value of 20 l. yet the King may preſent to any of his under-va-
lued Benefices, if he pleaſe.
Bp. Gibson's Now as theſe latter Words ſeem to be objected againſt by a Right
Code 804.
Reverend Prelate, I ſhall beg leave to give the Reader his Words at
large, touching this Claim of the Chancellor of England, viz.
ic The Lord Chancellor or Lord Keeper of the Great Seal for the
"Time being, hath Right to preſent to the Benefices appertaining to
the King, under a certain yearly Value in the King's Books; which
Right and the Foundation of it will be beſt underſtood by what was
anciently declared in Parliament upon that Head, viz. Pur ceo, c.
Becauſe it hath been ordained in Times whereof there is no Memo-
ry; and granted by the Progenitors of our Lord the King. That the
Chancellor for the Time being ſhould give the Benefices (which be-
long Ito the King to give,) taxed at 20 Marks and under, to the
Clerks of the Chancery, who have long laboured in the Place, and
which Thing hath been uſed from the faid Time till the Biſhop of
" Lincoln was made Chancellor, who in all his Time gave the ſaid
“ Benefices to his own Clerks, and to other Clerks againſt the Will of
“ our L. the King, and againſt the Ordinance and Uſage aforeſaid. May
it pleaſe our faid Lord the King, and his Council, to Ordain, That
" the Chancellors which ſhall be for the Time do give the Benefices
" which belong to give, for the Cauſe aforeſaid, to the Clerks, of the
« faid Place as it hath been anciently uſed, and that this be done by
( Election of the Maſters of the Chancery.
Anſw." Let this Bill be delivered to the King, and it liketh the
« Council, That it is fit to command the Chancellor, that hereafter
" he give ſuch Benefices to the King's Clerks of the Chancery, the Ex-
“ chequer, and of both Benches, and not to others.
Here we fee that the Privilege extended only to Benefices of 20
“ Marks or under. But now 'tis enlarged to all of 201. or under
“ which Enlargement was probably made about the Time of the new
“ Valuation taken in the Reign of King H. 8. And it hath been decla-
“ red where the Chancellor preſented to a Benefice above that Value,
" and the Clerk was inſtituted and inducted. And then another ob-
tained a Preſentation from the King, that the firſt Clerk could not be
3
CC
Rot. Parl.
4 Ed. 3.
CC
CC
CC
CC
Hob. 214.
sorer
Chap. IX.
81
The Complete Incumbent.
CS
CC
CC
1
CC
66
removed by Law, becauſe the Preſentation was under the Great Scal, Archbiljops
« and therefore the Church was full by the King's Preſentation in Law, Dption.
“ it being in his Name (and by his Authority.) But if the Preſentation
“ had recited (as is there intiniated it ought,) That the Benefice was un:
“ der the Value of 20 1. it had been void, becauſe it would have
ap-
peared in the Office of Firſt-fruits, That the Chancellor was decei-
“ ved; or if the Miſtake had appeared before Induction, the King might
“ have revoked it. (And fo I take it he may after, for it is apparent
"he was deceived.) _But (fays the Biſhop) 'whereas it has been ſaid,
"j. e. in the fecond Edition hereof, p. 130) That the King if he pleaſe
may preſent to fuch Livings under the Value of 201. it is to be ob-
cc ferved, That the Claim of the Lord Chancellor or Lord Keeper for
« the Time being is very ancient, (ſo was the Practice and Pretence of
“ the Biſhop of Lincoln before-mentioned) and that nothing appears
to have been ever determined or moved in a judicial Way to the Di-
“minution of that ancient Right. (I conceive the before recited Pe-
" tition, and Anſwer in Parliament are direct Negative Evidences.) On
“the contrary (ſays the Biſhop) there is an old Writ in the Regiſter,
“ which ſuppoſes the Right to be in him (i. e. the Chancellor) viz. De
primo Beneficio Ecclefiaftico habendo, by which the King requires the
« Chancellor to grant to a particular Perſon the firſt Benefice above 20
Marks that ſhall fall in the Gift of the Crown, and that he will ac-
cept : the Words are, Volumus quod idem A. ad primum Beneficium
Ecclefiafticum, taxationem viginti Marcarum excedens, vocetur,
“ quod ad præſentationem noftram pertinuerit, & quod duxerit accep-
"tandum præſentetur.” But how the Biſhop raiſes his Inference from
hence, that the King has no Right to preſent to Benefices in his Gift
under 201. Value, I cannot comprehend, beſides I take this Writ to
be one of thoſe many invented by that very Biſhop of Lincoln, when
Chancellor, whoſe Actings herein were complained of in Parliament,
for that he gave the ſaid Benefices to his own Clerks and to other
Clerks againſt the Will of our Lord the King, which ſhews the Chan-
cellor had then no ſuch Right excluſive of the King, as our Right Rex
verend Prelate has ſuppoſed.
Alſo the Right of preſenting to a Living in the Province of Canter- Option, a
bury, may go from an inferior Biſhop for one Turn to the Archbiſhop Privilege of
of Canterbury, viz. When he doth confecrate a Perſon to be Biſhop of
Shops of Can-
any of the Biſhopricks within his Province; and this Privilege of the terbury and
Archbiſhop, in this Cafe, is ſuch, that he hath the Election of all the
Preferments of the Biſhop's Gift, whom he doth confecrate, and when what Church
he hath made his Cption, the new Biſhop is wont to make a Grant of the he will.
next Avoidance of the Church chofen, to him and his Executors; and
if the Church which the Archbiſhop chuſeth, doth not come void before
the Biſhoprick to which the Gift thereof belongeth, ſo that he doth
conſecrate another Biſhop for the fame Sce, he may make a new Op-
tion, and ſuch ſecond Biſhop is to make him a Grant of the next Turn
of the Benefice then choſen, as before : But then his former Grant is
void, and theſe Grants (Practice may be Proof, for I find nothing in
the Books to warrant it) are good to bind the Succeſſor, notwithſtand-
ing Stat. 1 Eliz. The Archbiſhop of York, within his Province, hath
the ſame Privilege as the Archbiſhop of Canterbury:
But further touching Option, we may here add the Words of the be- Code 133.
fore cited Prelate, viz. Every Biſhop (whether created or tranſlated)
is bound imnicdiately after Confirmation to make a legal Conveyance
thc Archbi.
Tork.
Election of
Y
to
!
82
The Clergy-Man's Law: Or, Chap. IX.
47. a.
#rhbilans to the Archbiſhop of the next Avoidance of one fuch Dignity or Be-
Right of
nefice belonging to his Sce, as the faid Archbiſhop ſhall chufe and
Dprimu.
y name ; which is therefore called an Option. Of this we find carly Men-
tion in the Records of the Sce of Canterbury', among the Prefentations,
Inſtitutions and Collations of the Archbiſhops ; but with thefe two
Variations. In ſome Places it is faid to be due, ratione Conſecrationis,
and that anciently the Perſon to be promoted was named to the Biſhop,
and not the Dignity or Benefice he was to be promoted to, as An. 1308.
Wir:ch. f. Dominus contulit Gratiain Dom. Walteri Reginaldi Epiſc. Vigörn,
quem tenebatur facere rationeconſecrationis fuæ Dom. G. de Buton. Where
Ib. fo. 6C. the like Demand is alſo made of the Biſhops of Exeter and Chicheſter,
and Anno 1310. Litera directa Epiſcopo Elien' ad promotendum unun
Clericur, quem Archiep'us fibi nominaverit ratione Conſecrationis fuæ.
Crann. 80. a. And in Archbiſhop Cranmer's Regiſter, among the Ancient Fees is
,
Item,«t the Conſecration of every Biſhop (by Prerogative) the Diſpoſiiis
on of the firſt
. Prebend, that becoinetk võid after the Confecration of the
elected by Adyowſon, to be granted to the Archbiſhop; of which Tenor
alſo are moſt of the Options of Archbiſhop Cranmer. On the other
Reyn. f. 54.
Hand we find in the Regiſter of Archbiſhop Reynold's a Monition to ac-
cept and admit the Clerk named by the Archbiſhop, reciting that it was
an ancient Right of the Archbiſhop for the Time being, cuilibet Electo
in Epiſcopum totius ſuæ Provinciæ poft confirinationem ipſius, eidem
IN2012 perſonam idoneam per ipſum proinovend 120minare; and that
ſtrictly ſpeaking, it is to be conveyed immediately after Confirmation
appears alſo by the Preface of the Grants fince the Beginning of Archbi-
Thop Parker at leaſt, as well upon Creations as Tranflations of Biſhops.
Cum tan de antiqua taudabili. longævaque di legitime preſcripta conſue-
tudine hattenus inconcufe ufitat obſervat', quam etiam de ſingula-
ri Prærogativá Ecclefia Metropolitica Chrifti Çantuar fuerit og fit
zufitatum et obſervaturi, quod Archiep'us Cantuar pro tempore Exiſtent
cuilibet ſuffraganeos' in Epiſcopum alicujus Eccleſia Cathedralis Sua
Cautxar' Provincie eleEt ftatim poft Confirmationem Ele&tionis hu-
jufmodi unum Clericum idoneum nominare e preſentare poflit, cui
idem Ele&tus confirmatus tenebitur, quamprimum facultas ſe obtulerit,
in fuâ Ecclefia cathedrali, de Canonicatu & Præbenda, ſeu de alio com-
petenti Beneficio Ecclefiaftico
providere ; ac interim diétum Clericum ad
Canonicatun & Præbendam ſem Beneficium hujuſmodi ſuc promovendum
acceptare e admittere ; nec non fibi Penfionem annuam fufficientem
conſtituere, tantiſper ſolvend & impendend', quoufque eidenz Clerico de
Canonicatu Prabendá vel alio competen' Beneficio hujuſmodi ſuffici-
enter fuerit cautumn Proviſum.
: By which Preamble it appears, That the ancient Method was to
name the Perſon to be promoted ; and not the Promotion, but ever ſince
Archbiſhop Cranmer's Time at leaſt (in whoſe Regiſter is the firſt En-
try that I have found of a Grant in Form) the Way hath been to con-
vey the Advowfon, either of the firſt Dignity or Benefice that ſhould fall,
or of ſome one in certain to the Archbiſhop, his Executors and Aſſigns
at firſt for 21 Years, and afterwards for the next Avoidance. But in
Caſe the Biſhop that grants it dies, or is tranſlated before the preſent
Incumbent of the Promotion choſen by the Archbiſhop ſhall dye, or
be removed, it is gencrally fuppofed, 'That the Option is void; in as
much as the Grantor ſingly and by himfelf could not convey any Right
or Title beyond the Tcrmi of his Continuance in that See.
0
The
IT
Chap. X.
83
The Caraplete Incumbent.
?
2000 tons,
The Maſterſhip of St. Crofs near Wincheſter was made an Option by Giants of
Archbiſhop Juxon, upon the Confirmation of the Biſhop of Il'incheſter .
as appears by a Conteſt between Dr. Pory the Aſſignee; and Sir William
Forcon the Éxccutor, where the Diſpute was not, whether the Maſter-
inip might be an Option, (na Queſtion being made thereof) but to
which of the two Perfons it belonged, as claiming under Archbi-
Thop Juxon. The Footſteps of which Diſpute appear in the Journal of Journal
the Houſe, where Sir Willian preſented a Petition to their Lordſhips,
praying that Dr. Pory might be obliged to wave his Privilege as a
Member of Convocation. But the Petition was diſmiſſed.
Dom. Proc.
1668.
CH A P. X.
Advowſons, and Right of Preſentation, how
granted over from one Perſon to another.
What Grants are good, or not.
Tail.
T
HE Right of Patronage may paſs from one feiſid thereof, to a By Grant.
Stranger, by the Aết and Conſent of him that is ſo ſeiſed, and
fometimes the Inheritance of the Advowfon is conveyed, ſometimes
only the Right of Preſenting for one or more Turns, as fhall happen
within a certain Time, &c. And this is either by the Grant of the
Party intereſted therein by Deed, or by Deviſe made thereof by Laſt Or Dexife.
Will and Teſtament.
That the Right of Preſenting may paſs by Grant, it is requiſite that
the Grantor have ſuch an abſolute Right in the Advowſon, that he may
convey the fame, according to the Eſtate by him granted, and alſo,
that he purſue the Methods the Law preſcribes in fuch Caſes: For all
Eſtates that one hath Power to grant, or lawfully may grant, are not,
nor cannot be granted by the fame Form of Conveyance: For if a Te- Grant by
nant in 'Tail grant his Advowſon to others, to the Uſe of himſelf and Tenants in
his Wife, and the Heirs Males of the Husband, and the Wife furvives
the Husband, yet ſhe gains nothing by ſuch Grant, for that the Eſtate
is determined by the Death of the Tenant in Tail. Mich. 30 Jac. Lord
Say v. Biſhop of Peterborough. Brownlow and Gouldsborough, I. 161.
So though the Son and Heir of that Tenant in Tail join with his Father
in the Grant of a next Avoidance in Tail, yet the Grant upon the Death
of the Father, is void againſt the Son and Heir that joined in the
fanie ; becauſe the Son had nothing in the Advowſon, neither in Pof- 'How void
ſeſſion or Right, nor in actual Poflibility at the Time of the Grant. Sir
Marmaduke Wivel's Cafe. Hobart 45. and Paſch. 12 Jac.Wivell v. Epiſc.
Ceftriæ. Brownlow and Gould sborough, 1.165. And though the Grant
ſhould be made to the Perſon that hath the Reverſion, when the Eſtate
Tail is determined for want of Iſſue, yet without a Fine levied in theſe
Caſes by the Tenant in Tail, it is not good ; and this is by Force of
the Statute of W’eſturinſter 2.13 E. 1. c. 1. called the Statute de Donis
Conditionalibus, &c. which prevents Tenants in Tail from making
ſuch Grants to Prejudice their Iſſue, or thoſe in Remainder or Reverſion
after
Fine levicd.
2
84
Chap. X.
The Clergy-Man's Law: Or,
Copco
Tenant for
Lifc.
Claim by
er.
Guants of after the Eſtate 'Tail is determincd, and when ſuch Grants made by
Hdvowrons,
Tenant in Tail are determined, and goes to the Reverſioner, he hath it
not as an Advowfon in Tail, but in Fcc-fimplc. Mich. 37 and 38 El. the
Queen c. Hulley. Moor 421. and Cro. 3. 519. When a Tenant in Tail
of a Manor, to which an Advowſon is appendant, doth grant the next A-
voidance and dies, the Grant is abſolutely void. Noy 143. Paſch. 13
Jac. B. R. Bowles v. Walter. Rolls i Rep. 190. 1 Bulſtr. 313. And if
Tenants in Tail of a Manor to which the Advowfon is appendant, doth
Diſcontinu- diſcontinue one Acre with the Advowſon, and dies, the Iſſue in Tail
ance.
may preſent at the next Avoidance before the Acre be re-continued, for
that the Diſcontinuee did never preſent after the Diſcontinuance, this
being the firſt Avoidance after. 34 E. 1. Quare Impedit 179. 1 Inſtit.
333. b. However, Grants void by the Death of Tenant in Tail, in the
Caſes before put, do ſtand good againſt the Tenant in Tail himſelf,
during his Lifc.
So if Tenant for Life of an Advowfon in groſs doth levy a Fine
thereof, and before any Claim made by him in Reverſion the Church
doth void, he in Reverſion ſhall not afterwards have Advantage of the
Forfeiture, as to the preſent Preſentation; for that before Election made
by him in Reverſion, the. Eſtate of the Leſſee was not defeated nor de-
ſtroyed, the which Election ought to have been by Claim, and then
Reverſión- it was a Chattel veſted in the Lefſee before Election made by him in
Reverſion, which cannot be deveſted after by the Preſentation of him
in Reverſion. Trin. 13 Car. B. R. Spring v. Sir Julius Cæſar, adjudg-
cd upon Error brought. Roll's Abr. 1. 857.
If Tenant in Tail of an Advowſon, doth grant by Fine the Advow-
ſon in Tail, the Iſſue in Tail is included ; or if ſuch Tenant doth grant
Grant of the to one by Fine the Nomination of a Clerk to the ſame Advowfon, when
Nomination it becometh void, this Fine ſhall bind the Iſſue, by the Statute. 32 H.
8. C. 36. Smith and Stapleton's Cafe. Plowd. 435. b. becauſe the Pre-
ſentation and Nomination is in Effect the fame Thing, and the Fruit
and the full Profit of the Patronage the Thing intailed. But if 'Tenant
in Tail of an Advowſon doth grant by Fine the Nomination of a Clerk
to one, and his Heirs, ſo that when the Church doth become void, the
Grantee and his Heirs may nominate a Clerk to the Tenant in 'Tail
and his Heirs, and that he or they ſhall preſent the Clerk ſo nominated
to the Ordinary, and the 'Tenant Tail dieth, fuch Fine ſhall not bind
the Iſſues in Tail, becauſe there the Nomination and Preſentation are
diſtinguiſhed, and fo the Fine is not of the Thing entailed, by Dode-
ridge in his Complete Parſon, p. 36. and Plowd. 435. So when one
was Tenant in Tail, of the Nomination of a Clerk to an Abbot to
preſent over, the Abbot preſented without any Nomination, and had
Induction by his Clerk inſtituted and inducted, and then the Abbot did get a Releaſe
Ufurpation. of the Anceſtor collateral to the Tenant in Tail with Warrantry; it
was held, that the Iſſue in Tail ſhould be barred, for that the Inducti-
on by Uſurpation put the 'Tenant in Tail out of Poſſeſſion, ſo that there
remained only a Right which was bound by the Warranty collateral.
I H. 5 f. 1. vouched in Hare and Buckley's Cafe. Plowden 529. a.
Upon a Qụare Impedit brought by the Heir of a Tenant in Tail, the
Defendant pleaded, That the Father of the Plaintiff gave the Advow-
fon by Deed to him and his Heirs, and that the Anceſtor collateral to
Releaſe by the Plaintiff, to whom he is Heir, releaſed with Warranty for him
and his Heirs the faid Advowſon to the Defendant, and that this An-
ceſtor
Iſſue in Tail
concluded
by Fine.
of a Clerk.
Anceſtor.
2
Chap. X.
SS
The Complete Incumbent.
Car.
2
himſelt.
ceſtor is dead, &c. and it was adjudged a good Bar, affirmed in Error. Giants ?
advomlji
Jenkins Cent. 4. Caſus 83.
Alfo Eccleſiaſtical Perſons feiſed of Advowſons, in the Right of their
Churches, have not ſuch an abſolute Right thereto, that they may Sue celona
convey
the fame from their Succeſſors : For if all Avoidances of an upon a s-
Advowſon that ſhall happen within a certain Time, or the next Avoi- ſhopsGsie??.
dance only be granted by a Biſhop, the Grant binds not fuch Biſhop's
Succeſſor, by reaſon of the Statute.
1 Eliz. as was adjudged upon a
Quare Impedit brought, by reaſon of a Grant made of the Advowſon
of an Arch-Deaconry for twenty-one Years, becauſe it is Parcel of the
Poſſeſſions and Hereditaments of the Church, and not a Thing whereof
any annual Rent or Profit can be reſerved. And ſuch Grants made by
the Biſhops, though afterwards confirmed by their Deans and Chapters,
are not only void againſt Succeſſors, but alſo againſt the King, when the
Temporalities of the Biſhoprick come into his Hands. Earl of Bed- Yet gon! --
ford's Cafe. Coke's Rep. 7.f. 7. But though theſe Grants are void a- gainit Dati
gainſt their Succeſſors and the King, yet the Grant of a Biſhop in ſuch
Cafe is good againſt himſelf; fo that he cannot void it during the me
that he continueth Biſhop, the Statute of the firſt of Eliz. being made
only for the Benefit of the Succeffors and the King, that by the prece-
ding Poſſeſſors they might be prejudiced in their reſpective Rights, but
not to reſtrain thofe in Poffefſion, that they ſhall dot do any Thing to
bind themſelves during their own Times; for then they could not de-
miſe Lands, not formerly let for Rent, but muſt retain them in their
own Hands, nor have the Benefit of their Waftes, but by their own
Stock, doc. Mich. 37 and 38 El. Dean and Chapter of Hereford v. Bi-
ſhop of Hereford and Ballard. 3 Cro. 440. Paſch. 34 El. Sale v. Bi-
ſhop of Coventry and Marſh. Anderſ. 241. Mich. 32 2 and
Smallwood and others v. Biſhop of Coventry and Marſh. 3 Cro. 207.
Trin. 41 Eliz. Armiger v. Biſhop of Norwich and Holland. 3 Cro. 690.
And the like Law is in the Caſe of Grants made by Deans and Chap- Simile of
ters, for they void when the Dean (being principal Member of the Grants by
Corporation) dies, and binds both Dean and Chapter during his Life Deans, cc.
only. Stat. 13 Eliz. C. 10. Pafch. 39 El. Hunt v. Singleton. 3 Co. 60.
Rickman and Garth. 2 Cro. 173.
Notwithſtanding ſuch Advowſons as be appendant to Manors, or o-
ther Things uſually let, do paſs now, as well as before the ſaid Sta-
1 Eliz. with the Things to which they are appendant, ſuch
Things not being granted contrary to the Contents of that Statute.
And if he that is poſſeſſed for a Term of Years of an Eccleſiaſtical In- By a Tenang
heritance, to which an Advowſon is appendant, doth grant away the for Years.
Avoidances, if any ſhall happen during his Term then in Being, and
after doth ſurrender his Term to him in Reverſion, who accepts
of the
ſame, and makes a new Leafe thereof to another, cum Pertinentiis ;
yet he to whom the Avoidances happening, during the Term, were
granted by the firſt 'Ternior, ſhall enjoy the ſame, becauſe the Limi-
tation, Ji any thall happen, is no more than the Law in this Cafe
would have fåid. And if by ſuch after-Surrender a precedent Grant
ſhould be avoided, it would be in the Power of the Grantor, at Plea-
ſure, to derogatc from his own Grant; whereas by the Rule of
Law, every one's Grant is to be taken moſt ſtrongly againſt himſelf, Law.
and beneficially to the Grantee. Trin. 8 Jac. Davenport's Caſc. Cu.
33 Eliz.
tute.
Rule of
8. f. 144.
Z
Alo
86
The Clergy-Man's Law : Or, Chap. X.
Cupc.
and Fellows
Esc.
ſuch Leaſes
Erc.
Gants of Alſo the Law is the ſame in the Caſe of any Maſter and Fellows
advowons, of any College, Maſter or Guardian of any Hoſpital, Parfon, Vicar;
or other, having an Advowfon in the Right of their Church, College
By Maſters
or other Eccleſiaſtical Preferment. Stat. 13 Eliz. 6. 10. Neither cani
of Colleges, any Grant or Leaſe for any Years or Lives, made by any of the Per-
fons aforeſaid, of an Advowſon in grofs, held in Right of their Churches,
Colleges, óc. hold good againſt the Succeſſors. However, it ſhall be
confirmed, they having by the Statuto. 13 Eliz. C. 10. á Power left
them only of granting Things Corporeal, as Lands, c. of which a
Rent may be reſerved, and not of granting Things that lie in Grant,
of which Sort are Adyowfons. Rep. 5. f. 3. Jewel's Cafe, 5 Co. 15.
10 Co. 60. But ſpeaking properly, theſe Leaſes are rather voidable than
How to make void; for the Succeffor may, as he pleaſes, make the ſame either void
or valid as to himſelf; and if he will make ſuch Leaſe void, he muſt
void or good. do it either by Entry, upon the Thing in Leaſe, to which the Advow-
fon is appendant, or by Claim, where the Advowſon is in grofs. And
as he may, (and if he do) muſt by fome Act make them void; fo he
may affirm, and make them good during his Time: For it hath been
adjudged, That tho' the King, when the Temporalities of a Biſhoprick
do come to his Hands, ſhall avoid a voidable Leafe, during the Vacan-
cy of the Biſhoprick, in Privity and Right of the Biſhoprick; fo that
if a Turn fall, he ſhall preſent to the void Church; yet that ſhall not
By fucceed- void the Leafe fo abſolutely, but that the ſucceeding Biſhop may make
ing Bihop, good the fame : And ſo may a Dean and Chapter, and any other Ec-
cleſiaſtical Perſons in the aforeſaid Caſes. And ſuch Leafes of Advows
fons, whether they were let in grofs, or paſſed as appendant, are made
good by the Succeffor againſt himſelf, by exprefs Agreement to the
Leaſe of his Predeceſſor ; or (in caſe the Advowſon was leaſed with a
By Agree Thing Corporeal, as appendant thereunto) alſo by Agreement in Law.
1 Inſt. 211. b, Co. 7. f. 8. which is made either by Acceptance of Rent,
or by diſtraining for Rent due, for the Thing to which the Advowfon
is appendant at a Day after the Death of the Predeceſſor; or (in caſe
ſuch Leaſe be for one or more Lives) by bringing an Alliſe; but the
Aflife cannot be brought, in cafe ſuch Leaſe be for Years; and there-
fore, being brought by the Succeſſor, doth not affirm ſuch Leaſe; and
this extends as well to aggregate, as to fole Corporations; only in the
Caſe of an aggregate Corporation, the Dean, or principal Member
thereof, cannot by his fole Act deveſt any Right that is in him
and the other Members, as was adjudged in the Caſe of Magdalen-
College in Cambridge. 11 Co. 77
So if an Husband be ſeiſed of a Manor, to which an Advowſon is
appendant, jointly with his Wife for Life, his Right is not ſo abfolute,
that he can convey from his Wife: For if he doth alien one Acre with
the Advowſon (by which the Advowſon is appendant to the Acre) and
Re-continu- dies, and then the Church doth void after the Wife hath re-continued
the Acre, ſhe may preſent, but not before. 17 E. 3. 5. 19. adjudged
contra. 22 E. 3. 7. 23. AD. 8. But if the Alienee doth alien the Acre
to another, faving the Advowſon, and then the Husband dies, the
Wife
may preſent to the next Avoidance, becauſe ſhe cannot recover
it with the Acre. 17 El. 3. 5. 19.b. And ſo if the Husband had aliened
the Advowfon, as in grofs
, and after doth alien the Manor to ano-
ther, and dies, the Wife may preſent .upon an Avoidance, before the
Manor is re-continued, becauſe the Advowſon is in grofs. Roll's Abr.
2. P. 352. contra, 17 E. 3. 19. b. So if the Wife be endowed of the
ment,
Husband and
Wife.
ance.
third
Chap. X.
87
The Complete Incumbent.
Sonce
Grants.
ܪ
third Part of a Manor, and of the Advowfon appendant ; and after Giants of
advowrons
another Husband and Wife do purchaſe all the Manor, and then the
Husband doth alien one Acre of the Manor with the Advowſon, and
after the ſecond Preſentment, the Husband dies, and the Tenant in
Dower dies, the Wife may preſent to the third Turn, although that
ſhe hath not re-continued the Acre; for that the Advowſon by the Alie-
nation could not paſs as appendant to the. Acre, becauſe that at the
Time that the Husband aliened, he had but a Reverſion in it. 23 AD:
8. 22 E. 3. 7. the ſame Cafe. However, Husbands feiſed in the Right
of their Wives, and all other Perſons, may make their Grants accord-
ing to the Intereſts that they have; and therefore, if there be four
Jointenants of an Advowſon, and one of them grants over his Intereſt
, Jointenants.
this is good for his part againſt the Survivor; by Anderſon, and not
contradicted by Windham or Rodes; but Fenner againſt it, becauſe it
is a Thing entire. Hill. 30 Eliz. Agnes Kemp v. Biſhop of Wincheſter.
Gouldsborough 81.
That the Right of Preſenting may pafs by Deed or Grant, 'tis re- Words in
quiſite that the Deed or Grant do contain ſuch apt and proper Words ſuch Grants.
as the Law allows to paſs the fame: For when the King giveth
or granteth Land, or a Manor, with the Appurtenances, without he
make exprefs Mention in his Deed or Writing, of Advowſons of
Churches, when they fall
, belonging to ſuch Manor
. or. Land, at this
Day the King reſerveth to himſelf fuch Advowfons; albeit that amongſt
other Perſons it hath been obferved otherwiſe. Stat: 17 E. 2. C. 15 :
Doctor and Student, C. 20.l. 1. But if a Manor, to which an Advow-
ſon is appendant, doth come to the King's Hands by Efcheat, or by In the King's;
Purchaſe, if the King giveth the Manor to a Man as entirely as ſuch
an one held the ſame before it came to the King's Hands by way of
Efeheat, or as ſuch an one held it that enfeoffed us, the Advowſon
doth paſs, without ſaying, cum Feodis & Advocationibus. And the
Reaſon is, becauſe the Law doth intend in ſuch Cafe, that the King
is informed of his Right : and foʻin Judgment of Law fuch Words
are equivalent to an expreſs Mention of the Advowfon, which the Sta-
tute requires. Hill. 10 Jac. Whiſtler's Cafe, 10. Ço. 62. Paſch. 18. Eliz,
Dyer 350, 351. The King feiſed of an Advowſon of a Prebend in ÖfaPrebend.
Fee, which is preſentative, grants Toton Restoriam Sive Præbendam
noftram de Itching Abbas in Com. Sonth. cun omnibus. Decimis qui-
buſcunque eidem pertinentibus, &c. Monaſterio de Winton, nuper. Spett.
in tam amplis modo a forma, as the late Abbateſs held it ; although
the Abbateſs was ſeifed in Fee of the Advowfon, yet the Advowſon
fhall not paſs by this Grant, but the King ſhall be underſtood to be
deceived; for he intended to paſs the Rectory and Tythes as a Lay-
thing, and not the Advowfon. Hill. 14 Jac. Roll's. Abr. 2. p. 189,
So if the King grants a Manor Habenduiz una cum Advocatione, the
Advowſon being appendant, it will paſs by thoſe words. Roll's Abr.
2. p. 65. But if it be in grofs, it will not pafs, unleſs it be ſpecially Specially na-
named, not only in the Habendun, but in the Granting..Part. preceding med.
it. 38 H. 6. 36. Abbeſs of Sion's Cafe. Paſch. 3 Car. Hartop and Tuck
v. Dalby. Hetley 14. So if a common Perfon doth grant a Manor,
Habendum una cuin Advocatione of another Manor, this is not good
to pafs the Advowfon. Roll's Abr. 2. p. 65. And if in the former
Part of the King's Grant of a Manor, cam Pertinentiis, the Advow-
ſon is excepted; yet if afterwards there come Words ſufficient to pafs AfterWords.
the fame, all the Parts of the Letters Patent taking Effea at the ſame
3
Time
.
88
The Clergy-Man's Law: Or, Chap. X.
Of a Redo-
ry, and Ad-
der.
4 and s P.
helps Mil-
Grants of Time, the Advowſon ſhall paſs as appendant to the Manor, Hill. 10
Dobowſons, Fac. Whiſtler's Cafe. 10 Co. 65, 66. But if the King grant a Manor
(to which an Advowſon is appendant) with the Appurtenances and all
Profits, Commodities and Hereditaments to the fame belonging, the
Advowſon is not included in ſuch Grant. Mich. 14 Jac. Chancellor
and Scholars of Cambridge v. Walfgrau. Hob. 126.
If the King being feiſed of a Rectory, and of the Advowſon of the
vowson of a Vicarage of the fame Church, and by Letters Patents gives Rectorianz
Vicarage. prædi&t' er etiam Vicariam prædi&tæ Eccleſia, the Advowſon of the
Vicarage doth not pafs, no not in the Caſe of a common Perfon, much
leſs in the Caſe of the King, for that the Vicarage is another Thing
than the Advowſon. Mich. 31 and 32 Eliz. 3 Cro. 163. But by Walmſly
Juſtice, if the King had granted Eccleſiam ſuam
de D. it had paſſed.
Mich. 31 and 32 Ēliz. Ābegell's and Bennis's Cafe. i Leonard 191.
But if an Advowſon of a Vicarage that is appendant to a Rectory
After Attain- come to the King by the Patron's being attainted of Felony, and the
King doth afterwards grant the Rectory, Et omnia tenementa parcel
Spectant di&tæ ReEtor' adeo plene o in tam amplis modo & forma,
as the Perſon attainted had it, the Advowſon of the Vicarage doth
paſs. 18 Eliz. Dyer 350.
If the King be feiſed of the Rectory of D. and grants Advocationem
Eccleſia de D. thereby, the Advowſon doth not paſs, for that by the
Appropriation the Advowſon is gone, and is not in Éle, and by Con-
fequence cannot be granted : And it was held not to be a Caſe within
the Statute of 4 and 5 Phil. and Mary, of Confirmation of Grants of
and M. only the King; for the ſaid Statute doth but help Miſ-recital, Mif-naming,
recitals, @pc.
Mif-taking, Úc. but doth not make Grants good of fuch Things as
are not. And if it were in the Caſe of a Subject, nothing would paſs,
by Manwood, Chief Baron. Trin. 26 Eliz. the Queen and Lord Lun-
ley's Cafe. 2 Leon. 80. Hob. 304.
If the King, for Recufancy, doth feiſe two Parts of a Manor, to
which an Advowſon is appendant, thereby he ſhall have two Parts of
Recuſancy.
the Advowſon; and if he doth grant the Manor, with the Appurte-
nances and all Profits, Commodities and Hereditaments to the fame
belonging, for Twenty one Years, if the Recufant continues fuch for
fo long Time, the two Parts of the Advowfon are not thereby paſſed
from the King. Mich. 14 Jac. Chancellor, &c. of Cambridge v. Walf-
grave. Hobart 126. and by Moor 872. For Want of a more ſpecial
Mention of the Advowfon, according to the Statute 17 E. 2. C. 15.
or of the Words, Adeo plene & integre, & in tam amplis modo & for-
ma prout, &c. the Recufant had the Manor. But in Caſes of Reſti-
of Tempora- tution, as in Reititution of the Temporalities of a Biſhoprick, to a
ſucceeding Biſhop, Advowfons do paſs from the King, without expreſs
Mention of them, or Words equivalent; for the Words of the ſaid
Statute are, when the king giveth od granteth. Hill. 10 Jac. in
Whiſtler's Cafe. 10 Co. 64. b. 41 E. 3. 5. 27 AÑ. 48. Trin. 4
Eliz.
Wyllion v. Lord Barkley. Plowd. 251 and 252.
In the Caſe of a common Perſon, by the Grant of a Manor, to
granted by which an Advowſon is appendant, without any Mention of the Ad-
& common
vowfon, or ſaying, Cum Pertinentiis, the Advowſon doth pafs: And
ſo it did in the Caſe of the King before the Statute of Prærogativa
Regis. 17 E. 2. 15. 18 E. 3. 15. 8 H. 7. 4. 19 E. 2. Br. 844. Hill.
10 Jac. 1o. Co. 64. b. Whiſtler's Cafe. Rolls 2. Abr. 60. 1. a. And 'tis
faid, without mentioning the Advowſon, or ſaying, Gumi Pertinentiis,
the
Two Parts of
a Manor
teiſed for
lities.
Manor
Perfon.
3
Chap. X.
89
The Complete Incumbent.
the Advowſon paſſes, though the Feoffment of the Manor be without Giants of
advowlons,
Deed. 39 E. 3. 21. Mich. 29 Eliz. Gouldsborough f. 42. Co. 10. 64.
Roll's Abr. 2. 62. becauſe it is Parcel of the Manor, and lieth in Te-
The Third
nure. 15 H. 7. 7. 8. But if the Grant be of the Third Part of the
Part of a
Manor, though the Words, Cum Pertinentiis, be added, if no exprefs Manor.
Mention of the Advowſon be made, nothing of the Advowſon dothi
paſs. Trin. 30 El. Long v. the Biſhop of Glouceſter, &c. Savile 103.
And yet if a Wife be endowed of a Third Part of a Manor, the
Third Part of the Advowſon ſhall paſs therewith, as appendant to it.
6 Ed. 3. 44. Qylare Impedit 40. And if another Husband and the Wife, Husband and
after ſuch Endowment, do purchaſe all the Manor, and preſent twice, Wife:
and then alien one Acre of the Manor, with the Advowſon appendant,
the Third Part of the Advowſon doth not paſs as appendant to the A-
cre ; for that the Husband hath but a Reverſion in the Third Part at
the Time of the Grant. 23. AD. 8. adjudged. Beſides, at this Day no
Alienation of the Husband's ſhall be prejudicial to the Wife. Štat.
32 H. 8. c. 28. And yet note, that it is ſaid, That if one doth de- Demiſe,
miſe a Manor, to which an Advowſon is appendant, and faith not Cum
Pertinentiis, the Advowſon doth not paſs, which was ſaid in the Cafe
of a Parſon's Leaſe. Paſch. 25 El. C. B. in Higgins's and Grant's Cafe.
3 Cro. ;8. Doctor and Student. Ci 20. l. 1. But this ſeems to be con-
trary to Whiſtler's Cafe. 10 Co: 64. before-mentioned, unleſs there may
be a Difference between a Grant and a Leafc.
Though it be before ſaid, that without mentioning the Advowſon, By Deed.
or ſaying Cum Pertinentiis; the Advowſon paſſes, with the Manor,
though the Feoftment of the Manor be without Deed; yet if a Man
be feiſed of a Manor, whereunto an Advowſon is appendant; and
maketh a Feoffment of Three Acres, Parcel of the Manor, together
with the Advowſon to two, to have and to hold the one Moiety of
the Acres, and of the Advowſon, to one and his Heirs; and the
other Moiety of them, together with the other Moiety of the Ad-
vowſon, to the other and his Heirs ; this cannot be good without Deed,
for the Feoffor cannot annex the Advowſon to theſe Three Acres, and
diſannex it from the reſt of the Manor without Deed. i Inft. f. 190.
b. Savil 104.
An Advowſon appendant to a Manor is appendant pro-
perly to the Demeſnes of the Manor ; yet a Grant of the Demeſnes, Demeſnės
together with the Advowſon without Deed will not paſs the Advow-
fon ; for that the Manor is thereby deſtroyed, and conſequently the
Appendancy of the Advowſon will be deſtroyed alſo; for as before it
was appendant to the Manor, the Manor being deſtroyed by granting
the Demeſnes from the Services, the Advowſon by ſuch Grant cannot
be made appendant to the Lands which were the Demeſnes; but muſt
remain in groſs, Savile, the fame Cafe, 104. So an Advowfon in
groſs will not paſs without Deed by Livery and Seiſin only at the Door
of the Church. Roll's Abr. 2. p. 62. 6 7. 7. 3. 16 H. 7. 3. Yet it
is ſaid, That if the Advowſon be pleaded to be granted by Deed, an
Iſſue is taken by a Stranger to the Deed, that he did not grant it by Iſſue taken
the Deed, if it be found that he did grant it without Deed, or by by a Stran-
another Deed, it is good; for that the Deed is Surpluſage, and the Ef-
fect of the iſſue is upon the Grant, and not the Deed. 43 E. 3. 1. b.
2 Roll's Abr. 2. 681. For at this Time it was held, and ſo reſolved
in this very Caſe of 43 E. 3. that an Advowſon would paſs by Livery
without Deed, but the contrary hath for a long Time, as appears be-
fore, been taken for Law.
If
:
ger,
A &
90
The Clergy-Man's Law: Or, Chap. X.
Boc.
Under the
N
nement.
Gants of If a Prebendary having an Advowfon belonging in Fee to his Pre-
Xobowions,
bend, doth leafe his Prebend, cum omnibus Commoditatibus, Emolu-
mentis, Proficuis & Advantagiis, the Advowfon doth not paſs by ſuch
Upon a Leale Words, becauſe they imply only Things gainful, which are contrary
dary to the Nature of an Advowſon. Mich. 16 7ac. John London v. the
Chapter of the Collegiate Church of the Virgin Mary of Southwell.
Hobart 304. And yet an Advowſon may be yielded in Value upon a
Voucher, and be Aſſets in the Hands of an Executor; but Words in
Grants ſhall be conſtrued according to a reaſonable and eaſie Senſe,
not ſtrained to Things unlikely and unuſual ; and upon that Reaſon á
Grant of all Woods and 'Trees doth not paſs Apple Trees. 14 H. 8. 1.
Bya Prebend So a Prebend having a peculiar Juriſdiction, made a Leaſe of his Pre-
of a peculiar bend with all Profits, Commodities and Advantages, &c. thereto be-
Juriſdi&tion.
longing; and by the Chief Juſtice and Windham the Eccleſiaſtical Ju-
riſdiction did not thereby paſs to the Leſſee, ſo as that he might make
a Commiſſary, for that is annexed to the Spiritual Perſon, and not to
the Corps of the Prebend ; but Keeling and Twiſden were of a con-
trary Opinion, that the Eccleſiaſtical Juriſdiction was annexed to the
Corps of the Prebend, and did paſs by the Leafe. Hill. 15 and 16 Car.
2. B. R. Sherrock v. Boucher, i Levinz 125. 1 Keble 538, 639, 656.
of an Ap- So an Appropriation will not pafs by the Name of an Advowſon.
propriation.
44 E. 3. 33. yet an Advowfon will be contained under the Name of
a Tenement, and therefore Licence to purchaſe Lands and Tenements
Namc of Te- in Mortmain, extends to Advowſons. 13 E. 3. 18 Eliz. Dyer 350.
and fo Advowſons paſs by the Name of all Hereditaments lying where
the Church lieth. 15 Eliz. Dyer. 322. See John London's Cafe be-
fore. Hob. 304.
Sometimes an Advowſon is called a Nomination or Preſentation,
Names, No- therefore if the Nomination of an Advowſon be granted, Habendum
Presentation, the Advowſon, the Habendum is ſufficiently purſuant; for though it
vary in Name, yet it is all one in Nature, ſo that the Grant of the
Nomination of an Advowſon, is in Subſtance the Grant of the Ad-
vowſon ; for the Profit and Commodity of an Advowſon reſteth in the
Nomination or Diſpoſition of the fame : Hereof it enſueth, that if
one grants the Advowſon, excepting the Preſentation, during his Life,
ſuch Exception is void and repugnant to the Grant. 38 H. 6. 38. b.
Doderidge's Compleat Parſon, p. 63. And though Nomination and
Preſentation are oftentimes in Law uſed for one and the fame Thing,
Diftin&tions. 14 H. 2. 22. by Kingſmill, yet Preſentation and Nomination may be
ſo diſtinguiſhed, that one may have the Preſentation, and another the
Nomination, as diſtinct Inheritances. And this may come to paſs by
the Grant of him that is feiſed of the Advowſon; for if he that is
fo feiſed, doth grant unto another and his Heirs, That the Grantee
and his Heirs, every Time that the Church doth become void, ſhall
nominate to the Grantor and his Heirs, a Clerk to be preſented to the
ſame Church ; and that the Grantor and his Heirs ſhall preſent the
Clerk ſo nominated, to the Ordinary of the Place to be admitted and
inſtituted accordingly into the Church, this is a good Grant; and he
who hath the Right of Nomination, is the only Patron of the Church,
and ſhall maintain a Quare Impedit in his own Name; and he that
is to preſent ſuch Perfon fo nominated, in preſenting ſhall be but as
Servant to him that hath the Nomination. 24 E. 3. 69. b. 14 H. 4.
11. a. 1 H. 5. 1, 2, and 16. 5 E. 4. 123. A. 21 H. 6. 17. Q. Paſch.
2 H. 8.
Under the
2
Chap. X.
91
The Complete Incumbent.
1
advowfons
Egoo.
One hath the
Nomination,
P. 65.
in the Gran-
tor.
2 H. 8. Kell. 161. Sir George Shirley v. Underhill and Burſey. Mich. Giants of
16 Jac. Moor 894. Plowd. 435. b. 529. a.
And accordingly, if one hath a Nomination to a Benefice, and ano-
ther the Preſentation, and he that hath the Preſentation granteth an
Annuity to a Clerk, until he be advanced to a Benefice by the Grantor; another the
if afterwards the Church doth become void, and the Grantee be no- Preſentaticn.
minated to the Grantor to be preſented over; and he being preſented
accordingly, is admitted, inſtituted and inducted, yet the Annuity
ſhall not ceafe : For the Grantee was not thereunto preferred by the
Grantor, although he preſented him. Doderidge's Compleat Parſon,
And yet if a Writ of Annuity be brought againſt the Parſon,
the Aid is only grantable of him that hath the Preſentation, and not Aid.
of him that hath the Nomination. Paſch. 5 E. Moor 49. H. 5.
f. 1.
And if one hath the Nomination, and another the Preſentation, The Preſen-
and fuch Right of Preſentation doth accrue to the King, he that hath for only a
the Nomination, ſhall have all, by reaſon that it is undecent for the
King to do any Thing as a Servant to another ; by Townſend Serjeant.
Mich. 32 H. 8. Dyer 48. 3 H. 4. 33. 4 E. 6. Br. Cafe 410. Mich.
I Car. Dickenſon and Greenhow's Cafe. Pophamn 158. But by Dode-
ridge, the Nominator ſhall in ſuch Caſe nominate to the Lord Chan-
cellor, who, in the Name of the King, ſhall preſent to the Ordinary.
Compleat Parſon, p. 63.
Though in the Caſe before, the Nominator is Patron, and he that Ele&tion of
is to preſent, is as his Inſtrument or Servant; yet if he that is feiſed of Preſentation
an Advowfon doth grant to another, that at every Avoidance he ſhall
nominate to the Grantor two Clerks, of which he ſhall prefent one to
the Biſhop, the Grantor (his Grant notwithſtanding) remains Patron,
becauſe the Election is in him, which of the Parties named fhall be
preſented, and have the Benefice. 14 E. 4. 2. However, if in theſe
Caſes Reſpect be had to each other, they are both Patrons after a
Manner: and for Injury offered by either of them to the other, they Remedy a-
may puniſh each other, as if he that hath the Nomination will preſent gainſt cach
immediately to the Ordinary, he that hath the Preſentation may bring
a Quare Impedit, or a Writ of Right of Advowſon againſt him, as
his Cafe ſhall require : So if he that hath the Preſentation, doth refuſe
to preſent the other's Clerk nominated unto him, or doth preſent one
without his Nomination, the other may have his Quare Impedit, or
Writ of Right againſt him ; and his Writ ſhall be, Quod permittat
épfum præfentare, &c. and not nominare. For if ſo, the Writ ſhall
abate; but in his Declaration he ſhall declare upon the ſpecial Mat-
ter. 14 H. 4. 11. 1 H. 5. 1. Pafch. 5 Eliz. Moor 49. Mich. 16 Jac.
Sir George Shirley and Underhill's Cafe. Moor 894. And though one
hath a Writ to the Biſhop againſt the other, yet that ſhall not out the
other of his Poſſeſſion. Pafch. 5 El. Moor 49.
As the Right of Patronage, or perpetual Intereſt in an Advowfon Grant by
may paſs by the Grant of him that is feiſed thereof, fo the Right of Deed.
Preſenting to one or more Avoidances, or to ſo many as ſhall happen
within a Time limited, may be conveyed by the fame Means; but
when a Grant is made of the next Avoidance of a Church, it muſt be
done by Deed; for a Grant by Word only will operate nothing. Mich.
31 and 32 Eliz. Criſp's Cafe. 3 Cro. 163. And if the King doth grant
the next Avoidance of an Advowſon belonging to the Dutchy of Lan- Dutchy Seal.
caſter,
other.
A a 2
92
Chap. X.
The Clergy-Man's Law: Or,
Eupco
tel.
lede
When Gran
ſent at his
Peril.
Guants of caſter, this ought to be under the Dutchy Seal, and is not good under
alodowlons, the Great Scal. Roll's Abr. 2. p. 182.
If the Grant of the next Avoidance be to one, his Heirs and Aſſigns;
Avoidance yet it is but a Chattel, and ſhall go to the Executors. 39 E. 3. 37
only a Chat- 34 H. 6. 27. But if one doth make a Grant to 7. S. for the Life of
7. s. of the next Avoidance of his Church, ſo that he may preſent,
if the Church void during his Life, this is a limited Grant ; ſo that
if no Avoidance happens during the Grantee's Life, the Executor ſhall
not preſent. Trin. 4 Car. Hyde v. Man, Jones 407. i Cro. sos. and it
is faid to be adjudged. 9 Eliz. That if a Manor be bargained and
fold, the Advowfon appendant will not paſs, if the Deed be not ena
Deed inrol- rolled. Stamp and Clinton's Cafe. i Roll. Rep. pi 100. i Inft.
222, b.
He that hath a Grant of the next Avoidance of a Church, ought
tee muft pre- to preſent to the next that happens after ſuch Grant made, at his De-
ril; and if the Church being full, the rightful Patron doth grant Pre-
ſentationem quandocunque os quomodocunque Eccleſia vacare contigerit
pro unica vice tantum ; and adds, That this Grant ſhall remain in
Force, until a fit Clerk by his Preſentment ſhall be admitted, inſtitu-
ted and inducted, yet thefe general Words do not enable the Grantee
to take any other than the next immediate Turn: For if they ſhould,
the true Patron would not know certainly when to preſent, and would
be diſabled by reafon of Uncertainty to make any new Grant; nor could
the Jury, upon a Jure Patronatus awarded, know how to return their
Verdict, and ſo the Church ſhould remain for ever litigious. But if
If fuchGraħ- in this caſe the Grantee doth preſent in his Turn, and be diſturbed
Iturbed in his by any elder Title or Grant, this Grant ſhall remain in Force to ena-
ble him to preſent to the Church upon the firſt Avoidance, after the
preceding Grant is fatisfied. Trin. 87ac. Starkey v. Pool. í Bulſtrode
26. And this holds as well in the Caſe of the King, as of a com-
mon Perſon. Trin. 27 Eliz. Baskervil's Cafe. 7 Co. 28. And the ſame
Law is, where a ſecond Preſentment is granted to the King : For if he
doth not take it whilſt he may, viz. either before the Church is fil-
led, or after, by removing the Incumbent of the Ufurper, he ſhall
never have it. Pafch. 26 Eliz. Beverly v. Archbiſhop of Canterbury.
Owen 2.
Diſpenſation But if the King hath the firſt and next Avoidance of a Church, and
after doth grant a Difpenfation to the Incumbent to retain the Bene-
fice in Commendam after he ſhall be made a Biſhop, if the Incumbent
Of Commer- doth hold it with a Biſhoprick accordingly, during his Life, yet this
Sbap. 18. ſhall not amount to a Preſentation, but the King Thall have his Turn
after the Death of the Biſhop. Mich. 9 Jac. King v. Horsfall and
Wale. Davis 77. becauſe the Grant of the Commendam was but a
Continuance of the old Title, and doth only ſatisfie the King's Right
by his Prerogative, which is to preſent to Churches void by Creation,
and is not an Execution of the Right which he hath to the next Turn;
and the Diſpenſation being granted before Confecration of the Biſhop,
it prevented the Church from being void : See Chap. 9. and the King's
continuing the Church full of him that is made a Biſhop by Commen-
dam, ſhall not prevent him of the next Preſentment after the Church
is void of the Commendatory; yet if the next Turn be granted to a
private Perſon, and the Incumbent is made Biſhop, but before his Con-
fecration obtains a Diſpenſation to retain his Living, the Grantee
3
hath
Turn.
Retinere in
Commendam.
dams
i$
Chap. X. The Completé Incumbent.
93
c.
ſecond A-
next Avoidance after. Stat. 31 EU43
hath loſt his 'Turn; for as to him the Commendam was as a Preſenta- Guants of
dovowrons,
tion. Woodley v. Biſhop of Exeter, &c. 2 Cro. 691. therefore Quære.
But when the King making the Incumbent of a Church Biſhop, doth À
preſent thereto by his Prerogative, he that hath the Grant of the next
Avoidance made to him when the Church was full, ſhall not have
the next Turn after the Church ſhall be void of the King's Preſentee;
reſolved in Maring and Woodley's Caſe, vouched by Jones in Evans
and Kiffin's Caſe v. Askwith. Palmer 478. nor the King in this Cafe,
if he be the Grantee of the next Avoidance, ſhall have the next 'Turn;
becauſe then he doth not continue the old Incumbency, but preſents a
new by a double Title.
If one hath the Grant of a ſecond Avoidance, and he that hath the Upon a
Grant of the firſt Avoidance doth preſent upon a Simoniacal Contract, Grant of a
though his Clerk be inſtituted and inducted, and the King doth after-
voidance, ci
wards preſent upon his Title of Simony, and his Clerk be alſo inſti-
tuted and inducted, yet this ſhall not prevent him that hath the ſecond
Avoidance from preſenting, when the Church ſhall be void of the
the King's Incumbent; becauſe the Inſtitution and Induction of the
Clerk of him that had the firſt Avoidance is void, and the King doth
preſent as to his Turn, and ſo only bars the Grantee of the firſt Ævoid-
ance from preſenting again, and not the other, when the King's Right
is fatisfied; but if one hath the Grant of the firſt Avoidance of a
Church, and doth preſent a Clerk to the Biſhop, who doth obtain
Admiſſion, Inſtitution, Inſtallment or Induction thereupon, for
any
Re-
ward or Promiſe, 6c. or doth preſent ſuch Clerk to his Avoidance,
who within ſeven Years before his Acceptance, or taking of ſuch Bene-
fice, had obtained Holy Orders by reaſon of any corrupt Payment or
Agreement, and the Clerk in either Caſe be inſtituted and inducted
accordingly, this is a Plenarty, and his Turn ſerved, altho' the Church
in both Caſes immediately upon the Induction be void; but the King
in this Cafe hath not the Turn, but he that hath the Right to the
the Biſhop of Wincheſter and Pullefton. Hobart. 167.
If when a Church is void, a Grant is made of the next Avoidance The Church
thereof, it ſhall extend to the next that falls after the Church is filled, Grant is
and not of the preſent Turn; by Fitzherbert and Shelly. Hill. 28 H. made of
8. Dyer 26. Mich 10 and 11 Eliz. Agard v. Biſhop of Peterborough. the next A-
I Anderſon 15. But when the Church is full, if the Patron grants
proximam Advocationem to one, and after doth grant proximam Advo-
cationem to another, the ſecond Grant ſhall not extend to give the
next Turn after that which was firſt granted; for that is not proxima
Advocatio, but ſhall be void: And ſo if a Man being feiſed of an Ad-
vowſon in Fee, and having a Wife, doth grant the third Avoidance of a third
of the fame Church, the Grantee ſhall not have the fourth Avoidance Avoidance.
where the Feme hath the third for her Dower, unlefs in theſe Caſes
the Deed is more fpecial. Mich. 22 fac. Woodley v. Biſhop of Exeter,
Manwaring and Edwards. 2 Cro. 691. 20 H. 8. Bro. Preſent. al Eglife
5 2. 35 H. 8. Ibid. 55. I5 H. 7. 7. Tria. 29. H. 8. Đâyet 35. Co. 8.
fol. 144. Mich. 42 Eliz. Williams v. Biſhop of Lincoln, &c. 3 Cro.
791.
If A. Patron of an Advowfon, doth grant to B. and C. the next Obligations:
Avoidance, and doth become bound to C. in an Obligation, that C.
ſhall enjoy the ſaid Preſentment without any Diſturbance or Claim of
the faid A. and after B. doth releaſe to A. wko (the Church becoming
void)
.
,
ürc.
mination.
Of what In-
tereſt the
be
way. Mich.
Cro. 173. But a Releaſe in this Caſe is good, if it be
94 The Clergy-Man's Law: Or, Chap. X.
Glants of void) did offer to join with C. in preſenting to the Avoidance ; yet it
was held, that the Obligation was forfeited, altho' that A. had a Title
h of new, after the Obligation was entred into. Mich. 26 Eliz. C. B.
Blueſs's Cafe. 4 Leon. f. 18. Or if a Man bind himſelf in an Obliga-
tion to procure a Grant of the next Avoidance to be made to another,
ſo that the other may at the next Avoidance prefent, and doth
procure
a Grant to be made accordingly, and then the Incumbent is made Bi-
Shop, ſo that the King preſents by his Prerogative; in this Cafe the
Condition is not performed by reaſon of thoſe Words, ſo that the
Grantee may preſent. Hill. 29 El. Bingham v. Squires, Leonard 4.
f. 61.
Next No-
Whether the Patron of a Church doth grant proximam Advocatio-
nem Eccleſia de D. hac vice; or that another ſhall have the next No-
mination of an able Clerk of his Church when it ſhall void; it is all
one in Effect, and in the latter Cafe the Grantor is bound to preſent
to the Biſhop ſuch Clerk fo by the Grantee named; and if the
Grantee be diſturbed, he ſhall have his Quare Impedit as Patron, by
Rede. Paſch. 2 H. 8. Kelewey 160. b.
That the Right of Preſenting may paſs by Deed or Grant, the Grant
muſt be made of that Intereſt, which by Law may be granted : For
Grant muſt tho' whilſt a Church is void, the next Avoidance or Avoidances that
ſhall happen, or the Inheritance of the Advowfon may be granted a-
42
and 43 Eliz. Leeke v. Biſhop of Coventry. Owen 131.
yet the void Turn it ſelf is not grantable by any common Perſon, for
that it is a meer Spiritual Thing, and annexed to the Perſon of him
that is Patron ; and during the Time of the Vacation 'tis a Thing in
Right, Power and Authority; a Thing in Action, and in Effect, the
Fruit and Execution of the Advowſon, and not the Advowſon it ſelf:
and
yet the Executor ſhall have it. Pafch. 11 El. Dyer 282. Paſch.
2 and 3 Phil. and Mary, Agard v. the Biſhop of Peterborough. Dyer
1 29. b. and in 1 Anderſon 15. Trin. 1o Eliz. Stephens v. Clark, &c.
Moor 89. Mich. 30 and 31 Eliz. Brokesby v. Wickham and Biſhop of
Lincoln. i Leon. 167. Mich. 42 and 43 Eliz. Baker v. Rogers. 3 Cro.
173.
And as avoid Turn is not grantable, ſo if two have a Grant made
not granta- to them of a next Avoidance, and after the Church is void, one doth
releaſe to the other all his Right and Title therein, the Releaſe is void;
for that the Church being void, the Right of Preſenting not being a
Thing in Poſſeſſion, but only in Action; cannot be releaſed, no more
Where a than it can be granted, and therefore they muſt both preſent, and if
diſturbed, bring their Action in both their Names. Hill. 33 El. Brokes-
by v. Biſhop of Lincoln. i Anderſon 223. Mich. 31 and 32 El. Brokes-
Where good.
made before the Church is void, and the Party to whom the Releaſe
is made, may preſent, and if diſturbed, may bring his Writ in his own
Name. Mich. 39 and 40 Eliz. Bennet v. Biſhop of Norwich. 3 Cro.
600. Trin. 39 Eliz. Lewis v. Bennet. Moor 467.
So if the King ſeiſe an Advowſon without Cauſe, ignorans Tituli ſui,
and after the Church doth void, and then he that Right hath, comes,
and hath Ouſter le inayn, cum exitibus; yet he ſhall loſe the Preſent-
ment hac vice, for nothing doth paſs by the Word Exitibus, but the
Rents and Profits of the Thing, and not the Preſentment; for that this
is no Profit to the Patron, but a Pre-eminence only, and the Profit is to
the Parfon. 24 E. 2. 29. and Brook, Ilues 21, 26.
ܪ
Void Turn
ble.
Releaſe is
void.
Seizure
without
Cauſe.
3
Thor
Chap. X.
95
The Complete Incumbent.
c.
a void
Turn.
ed.
p. 196.
Though a Grant made of a void Turn by a common Perſon be void, Guants of
yet ſuch Grant is good where the King is Grantor. Paſch. 11 Eliz: adbowlons,
Dyer 282, 300. 9 E. 3. 16 H, 7, 8. in the Caſe of Margaret Coun-
teis of Richmond. Trin. 29 Eliz. Sir Tho. George v. Dalton. 3 Leo- King grants
nard 196. But if when a Church is void, the King Grants a Manor
with all Advowſons appendant, the void 'Turn doth not paſs thereby,
unleſs he alſo mention it in his Grant. Mich. 14 El. Leon. 3. 17, 61.
Mich. 13 and 14. El. Hobart 140. Mich. 5 Jac. Fane's Cafe. 2 Cro.
26. 30 Él. Sir Tho. George v. Biſhop of Lincoln and Dalton. Goulds-
borough 73, and in Owen 5 3. and in 3 Leon. 196. and in Moor, p. 249.
9 E. 3. 26. Quare Impedit 3i. Hill. 18 El. Dyer 348. Pafch. 13 Eliz.
Dyer 300. 4. Leon. Cafe 339. and 16 H. 7. 8. Againſt this, Fitz.
N.B. 33. 11. Dyer 269. 2 Roll's Abr. 196.
A Lapſe cannot be granted by the King, either before its Fall, or A Lapſe cafi-
after, by Hobart 154, in Colt and Glover's Cafe. And it is ſaid, That not be grant-
when the King hath two Titles to one Church, the one as Patron, the
other by Lapſe, if the King grants the Advowſon without an expreſs
Grant of the preſent Avoidance, the Grantee ſhall not have the Pre-
ſentment. 16 H. 7. 9 E. 3. Hill. 18 Eliz. Dyer 348. Roll's . Abr. 2.
So neither the King, nor any Biſhop can bind themſelves not to fill
May not
a Church come to them by Lapſe; becauſe (faith Hobart) that were bind himſelf
İnjuria & Malum in ſe: Nor can the King, having a Lapſe, grant to note to fill å
.
an Intruder, that he will not preſent to the Church; nor to an Ulurper
upon his Lapſe, that he will not remove his Preſentee: For this were
a Breach of that Truſt which the Law repofeth in him, as well for the
Behoof of the true Patron, as for the Good of the Church ; for by this
Means the Patron ſhould loſe his Patronage : By Hobart, in Colt and
Glover's Cafe before. Hob. 154, 155.
The other Means by which the Right of Preſenting to a Church may How Pré-
be transferred over by the Act and Conſent of the Party feiſed of the
paſs by De-
fame, is by Deviſe made thereof by Laſt Will and Teſtament; for viſe of Will
thereby the Right of Preſenting to the next Avoidance, or an Inheri-
tance of an Advowſon may be deviſed to any Perfon. Pafch. 13 Jac.
Sir Edward Pinchin v. Dr. Harris. 2 Cro. 371. And if ſuch Deviſe
be made by the Incumbent of the Church, the Inheritance of the Ad-
vowſon being in him, it is good, tho' he dye Incumbent; for tho' the
Teſtament hath no Effect but by the Death of the Teitator, yet it
hath an Inception in his Life-time: And ſo it is, tho' he appoint by his
Will who ſhall be preſented by the Executors; or that one Executor
ſhall prefent the other, or doth deviſe that his Executors ſhall grant the
Advowſon to ſuch a Man. Trin. 13 Jac. Harris v. Auſtin. 3 Bul-
Strode 40. Pafch. 13 Jac. Sir Edward Pinchin v. Harris.' 2 Cro. 371.
Trin. 13 Jac. Harris v. Auftin. Roll's i Rep. 210.
But if an Incumbent who is alſo feiſed of the Advowſon, do make Heir's Right
no Diſpoſition by his Will of the Advowſon, or the next Preſentation preferred.
thereof, his Heir, and not his Executors, ſhall preſent, altho’ both
their 'Titles ſeem to happen at the ſame Inſtant, (viz.) at the Incum-
bent's Death, but the Heir's Right, as being the more worthy, ſhall
be preferred. Mich. 33 Car. 2 C. B. Holt v. Epiſcopum Winton', &c.
3 Leninz 47.
Laſtly, It may be added, That the Right of Preſenting may paſs By acknow-
from one feiſed of the ſame, by the Patron's acknowledging of a Sta- ledging a
tute, &c. for a Perſon having a Manor, to which an Advowſon is ap-
pendant,
fentments
Statutc,
96
The Clergy-Man's Law : Or, Chap. XI.
Patronage pendant, doth bind himſelf in a Statute-Merchant, &c. and the Statute
fozfeited.
be extended; if the Church doth become void during the Conuſee's
Eſtate, the Conuſee may preſent. Mich. 32 and 33 Eliz. C. B. Kent
v. Wichall
. Owen 49. Mich. 32 and 33. Sir John Arundel's Cafe. Noy.
But I conceive that an Advowſon in groſs is not extendable upon a Sta-
tute Merchant, or of the Staple. 70. Rep. 24.
C H A P. XI.
Right of Preſentation, by what Means for-
feited
Right of
Preſentation
forfeited.
Vide ante
'ch. 8.
HE Right of Patronage, or Preſenting, may paſs from the right-
ful Patron to a Stranger, by Forfeiture, and that in ſeveral Re-
ſpects: As firſt
, upon the Account of a Simoniacal Contract ; for in ſuch
Caſe, the King hath the Right of preſenting for one Time, or Turn
to the Bencfice for which ſuch Contract is made. Stat. 31 Eliz. c. 6.
which ſee Chap. 5. That is, if the Clerk be preſented in Purſuance of
By Simony. the Simoniacal Contract, for the Words of the Statute are ; 3f any
Perſon, &c. Thall corruptly Preſent o2 Collate, 02 Give and Beſtow,
&c. And tho'a Clerk without the Privity or Conſent of the Patron,
doth make a Simoniacal Contract with the Wife, or Friend of the Pa-
tron, and the Clerk is preſented accordingly, the King ſhall have the
Turn. Mich. 13 Jac. King v. Cole and Saker. 2 Cro. 385. Hill. II
Fac. Sir William Bouger v. High-Commi (ion-Court. 2 Bulſtrode 182.
The ſame Law, tho' the Contract be only made aniongſt Strangers,
without the Privity either of Patron, or Incumbent. Mich. 9 Car.
Bawderock v. Mackaller. ; Cro. 331. the King v. Truſel. Paſch. 19
Car. 2. 1 Siderfin 329. But if he that hath the Right of Preſentation
only upon a Nomination made by another, of a Clerk to him, without
the Privity of him that hath the Right of Nomination; or if an Uſur-
per doth corruptly preſent to a void Church, the Patron, who ought to
Nominate or Preſent, ſhall not thereby forfeit his Right. 3 Inft. c. 71.
For it was ſaid. Mich. 15 7ac. in Winchcomb and Pulleſton's Cafe.
Noy 25. That the rightful Patron may have a Quare Impedit after
In an Ufur- the ſix Months againſt an Incumbent of an Uſurper that is in by Simo-
ny; and (per Cur) to ſay in that Caſe, that the Church was full by fix
Months, is no Plea ; and the Reaſon is, becauſe the Preſentation of
the Uſurper's Clerk being made by Simony, that, and the Inſtitution
and Induction that followed upon it, were meerly void, and ſo the
Church never full of the Perſon of ſuch Clerk. Hobart 167.
King's Turn If he that hath a Bcncfice by Simony doth enjoy the ſame, as if he
was lawful Incumbent till Death, yet this doth not ſatisfy the King's
Turn, but he may preſent afterwards. Paſch. 14 Jac. Winchcomb v.
Pulleſton, in Hobart 165. and 15 Jac. in Noy 25. and in Brownlow and
Gouldsborough ; becauſe the Church notwithſtanding the Inſtitution
and Induction of the Simoniſt remained void to the King's Preſentment
before his Death, and his Death cannot make him Incumbent, that was
per.
bor forfeit-
cd.
none
2
Chap. XI.
97
The Complete Incumbent.
fo2feited.
loft.
dead.
very Pa-
ز
none befort, or otherwiſe alter the Cafe. And if upon the Death of Patronage
the Simoniſt, the rightful Patron, or a Stranger, doth preſent a Clerk,
who is alſo inſtituted, yet the King may preſent his Clerk; and if he
doth, the Ordinary muſt admit him ; and by his being inſtituted, the
Church is actually full againſt the other. But if the firſt had been al-
fo inducted, the King could not have outed him, but by Quare Impedit,
nor by Quare Impedit acccording to Moor, in Winchcomb's Cafe. Pafch.
18 Fac. Moor 177. who holds, that by gaining (after the Death of the
Simoniſt, and before the King's Preſentment) a Poſſeſſion of the Church
upon the Patron's Preſentment, the King's 'Turn is abſolutely loſt; (of King's Turn
which I doubt.) However, if the King doth ſuffer the Patron's Clerk,
that fuccceeds the Simoniſt, to die Incumbent, he hath then loſt the
Turn, which by the Simony he was entitled to, as Hobart holds in
Winchcomb's Cafe. Hobart 166. And the Reaſon why the King may Wherefore
preſent when the Simoniſt is dead, or remove another's Preſentce, after the King
Induction, is becauſe the Title being in the King after the Death of the when the si-
Sinioniſt, (in that the immediate Turn belongs to him) and neither moniſt is
he, nor other Perſon, having preſented before, whether the
tron, or a Stranger, then preſented, he doth it but as an Uſurper: And
therefore, he may, before the Church filled againſt him, prefent, or
after the Induction of another's Clerk, as well remove him by Writ,
as if he had been preſented and ſettled by Uſurpation upon the King in
any other Cafe, and with as much Reafon after, as before the Death
of the Simoniſt; and that he may not preſent after the Clerk that filled
the Church is dead, if he did not take his Advantage before, is, becauſe
he was to have but one 'Turn only, and the firſt which was ſerved by
Uſurpation thro' the King's Neglect to remove the Ufurper's Clerk,
even as it is in the Caſe of a Lapſe to him.
But the Law in this is now affered, in Favour of all Patrons not Law alter’d.
guilty of ſuch Simony, and their Clerks; for it is enacted: Whereas M. c. 26. in
it hath often happened, that Perſons Simoniack, 02 Simoniacally Favour of
promoted to benefités, oj Ecclefiaftical Livings, have enjoyed the
Benefit of ſuch Livings many years, and ſometimes all their Life,
time, by Reaſon of the ſecret Carriage of ſuch Simoniacal Dealing;
and afteč the Death of ſuch Dimoniack Perfon, atžother perſon in
nocènit of fuch Crime, and worthy of ſuch Préfér ment, being pre-
ſented ol promoted by another Patton innocent allo of that Simonia-
cai Contax, have been troubled and removed upon pretence of Lapſe
(02 otherwiſe) to the Prejudice of the innocent Patron in Reverſion,
and of his Cleck, wljereby the Guilty go away with Pofit of his
Crime, and the innocefit fucceeding Patroni, and his Eleck, are pu-
nithed contrary to all Keaton and good Conīctence.
FoPrevention fühereof, Be it enated by the Kirig and Dueen's If the Per-
mott erc llent Dajetties, by and with the advice and Conſent of the tron were
Lolds Spiritual and Temporal, and Commons in this preſent Par- not convi&-
liament atteinbled, and by the Authority of the ſamé, That after the Life time of
Death of tbe Perſon lo Simoniacally pjomoted, the offence od con- the Perſon
tra& of Simoniy fall neither by way of Title in Pleading, 02 in Evi
dence to a Jury, oj otherwiſe, hereafter be alțedged od pleaded, to the
Prejudice of any other Patton innocent of Simony, o of his Clerk
by him preſented oj promoted upon pretence of Laple to the Erown,
Betropolitan, oz otherwife, unleſs the Perſon Simoniack, 02 Simo
niacally preſented, og yts Patron, was convited of ſuch Dffence at the
Cominon-Law, od ſomie Ecclefiaftical Court, in the Life:time of tije
Вь
PER:
Patrons.
Simoninck,
afücr to le mall, by agy ſuch Perſon, as aforeſaid, Simoniack 02.
98 The Clergy-Man's Law: Or, Chap. XI
Patronage Perſon Simoniack od Simoniacally promoted od preſented; any Law
fo;feited.
cStatute to the contrary notwithſtanding.
and be it alſo provided, enaded and declared lip the authodity afoje.
bona fide by a laid, Chat no Leale, od Leaſes, really and bona fide made, of here:
Simoniacally promoted to any Deanery, Plebend, of Perſonage, oż
other Ecclefiaftical Benefice 02 Dignity, fou rod and valuable Cons.
1:deration to any Tenant, o2 Perſon, not being Plivy unto, oj ha-
ring Jotice of ſuch Simony, mall be impeached cz avoided, foj od
ty Reaſon of ſuch Simoniy, but ſhall be gad and effequal in Law, the
ſaid Simony notwitýftanding. Stat. i W. & M. c. 36.
Leaſe made
moniack.
1.C. S.
Preſentation
Patron dira-
bled by Rc-
As by Simony, fo by Recuſancy of the Patron, the Right of Pre-
cufancy.
fenting may go from him unto others : For it is enacted,
Stat. 3. Fac. That every Perſon of Perſons, that is oj ſhall be a Popifl Recu-
Cant conviđ, during the Time that he fhall be ou reinain a Reculant,
ſhall from and after the End of this preſent Sellion of Parliament,
be utterly diſabled to preſent to any Benefice with Cure od without
Cure, Prebend, oj any other Ecclefiaftical Living, od to collate od
nominate to any Free School, Hoſpital od Donative whatſocver, and
from the beginning of this preſent Sellion of Parliament, fall like-
wiſe be diſabled to grant any avoidance to anp Benefice, Prebend, oz
other Ecclefiaftical Living
and that the Chancelloz and Scholars of the Univerſity of Oxford,
by Chancel- fo often as any of them ſhall be void, fhall have the Preſentation,
the Univerſi- Nomination, Collation and Donation of and to every ſuch Benefice,
ty of Oxford. Prebend, or Ecclefiaftical Living, School, Hoſpital, and Donative,
ſet, lying, and being in the Counties of Oxford, Kent, Middleſex,
Suſſex, Surrey, Hampſhire, Berkſhire, Buckinghamſhire, Glouceſterſhire,
Worceſterſhire, Staffordſhire, Warwickſhire, Wiltſhire, Somerſetſhire,
Devonſhire, Cornwal, Dorſetſhiré, Herefordſhire, Northamptonſhire,
Pembrockſhire, Caermarthenſhire, Brecnockſhire, Monmouthſhire,
Cardigonſhire, Montgomeryſhire, the City of London, and in every
City and Cown being a County of it ſelf, lying and being within any
of the Limits:02 Precinãs of any of the Counties aforeſaid, oj in 02
within any of them, as fhall happen to be goid during ſuch Tiine as
the Patron thereof fhali be and remain a Recuſant conviđ, as afoze-
ſaid.
and that the Chancellor and scholars of the Univerſity of Cam-
verſity of bridge, ſhall have the Preſentation, Nomination, Collation, and Do.
Cambridge. nation of and to every ſuch Benefice, Prebend, 02 Eccleliaftical Li:
ving, School, Hoſpital, and Donative, ſet, lying, and being in the
Counties of Hertfordſhire, Bedfordſhire, Cambridgeſhire, Hunting-
tonſhire, Suffolk, Norfolk, Lincolnſhire, Rutlandſhire, Leiceſterſhire,
Darbyſhire, Nottinghamſhire, Shropſhire, Cheſhire, Lancaſhire, York-
Thire, the County of Durham, Northumberland, Cumberland, Weſt-
morland. Radnorſhire, Denbighſhire, Flintſhire, Carnarvonſhire, An-
glefeyſhire, Merionethſhire, Glamorganſhire, and in every City and
Town being a County of it ſelf, Iping within any of the Limits of
Puccin&s of any of the Counties laft before-mentioned, op in 12 within
any of them, as ſhall happen to be void during ſuch Time as the Patron
ther of fhall bc and remain a Reculant convict, as afujelaid.
Po
of the Uni-
Chap. XI.
୨୨
The Complete Incumbent.
102feited.
Ву
Provided, That neither of the ſaid Chancellos, no? Scholars of Patronage
either of the ſaid Univeräities, Mall. pzeſent oj nominate to any bene-
fice with Cure, Prebend, of other Eccleliaftical Living, any ſuch per: Provilo.
ſon as ſhall then have any other Benefice with Cure of Souls: and if
any ſuch preſentation of Nomination ſhall be had 02 made of any ſuch
Perſon ſo beneficed, the ſaid Preſentation of Noniination thall be utters
iy void; any Ching in this Ad to the contrary notuithftanding. Stat.
3 Jac. 1. cap.5.
this Statute, a Popiſh Recufant convict is diſabled to Prefent, &c. If the Ordi-
and therefore I conceive, if ſuch Perfon doth preſent, his Preſentation nary may
is void, and the Ordinary may refuſe his Clerk, and ſuffer the Turn to refuſe and
come to him by Lapſe, if that none other preſents who hath a better Laple.
Right: For that the Preſentation is void, is admitted by Jones, in his
Argument of Knight and Dancer's Cafe. Paſch. 14 Car. 2. i Keble
282, 311. And by Finch, the Clauſe that diſables Rccuſants to
pre-
ſent, they being made Excommunicate before, is nugatory; yet if the
Clerk be admitted, inſtituted, and inducted upon a Řecufant's Preſen-
tation, it
may be good to ſome Purpoſes ; as againſt all Strangers that
claim not under the rightful Patron. But theſe Matters are not there
reſolved, therefore Quære. And as to the Lapſe in this Caſe, it was As to the
in Queſtion, whether the Biſhop can have any Advantage by Lapfe, Lapſe.
the Preſentations being veſted in the Univerſities by Act of Parlia-
ment? And by the Opinion of Hutton, he ſhall not. But Richardſon
Chief-Juſtice, and Yelverton, were of a contrary Opinion, that by the
Statute the Univerſities were only put in the Place of the Patron; but
the Statute never intended to take away the Ordinary's Right, nor to
give Liberty to the Univerſities to preſent when they pleaſed. Mich.
4 Car. C. B. Chancellor and Scholars of the Univerſity of Oxford, v.
Biſhop of Lincoln, Sir Kenelm Digby and Holutes. ; Littleton's Rep.
192. but one Duncomb's Cafe was mentioned, where it was held that
the Univerſities ſhall not be bound by an Uſurpation.
Alſo this Statute doth diſable the Recufant convicted, from grant- Diſability to
ing away the Avoidance of any Benefice; and it hath been held, That grant away
if a Perſon being a Popiſh Recufant, doth, before he is convicted, dance.
grant the next Avoidance of his Church, yet being afterwards convict-
ed, ſuch Grant of his is made void by the Statute, for the material
Words of the Statute being ſingled by themſelves in this Manner will
ſhew it: Every perſon that ſhall be a Dopith Reculant convict, during
the Time that he fall be or remain a Becuſant, ſhall be diſabled from
the beginning of this Parliament to grant any avoidance. By which
it appears, that he is diſabled before his Conviction by the Retroſpect of
the Act, he being afterwards convicted of Recufancy. Trin, 11 Jac.
the Caſe of the Chancellor, Maſters, and Scholars of the Univerſity of
Oxford. 10 Co. 54.
And the Statute, I ſuppoſe, doth alfo diſable a Recufant in like Or his Ad-
manner from granting his Advowſon for Years
, eſpecially to a Friend yowfon for
in 'Truſt: For to this Opinion the Judges did ſeem to incline, tho' they
would not anſwer directly to the Queſtion, when moved to them.
Mich. 11 Jac. C. B. Hugh's p. 216.
This Statute alſo gives the Avoidances that happen, during the Time Veſted in
that the Patron thereof ſhall be and remain a Recufant convict, to one the Univer-
or other of the Univerſities; and when, by Vertue thereof, the Preſen-
tation, hac vice, is once veſted in the Univerſity, altho' that afterwards
the Recuſant conformeth himſelf, or dieth, yet the Univerſity ſhall pre-
fent.
Bb ze
Іоо
The Clergy-Man's Law: Or, Chap. XI.
Miſnoſmer
of the Uni-
of a
Manor.
Patronage ſent. Trin. 11 7ac. the Caſe of Chancellor, Mafters, and Scholars of
the Univerſity of Oxon. 10 Co. 54. a. Cawley's Law againſt Recuſants
230. And I' conceive, that the next Avoidance is veſted in the Univer-
lity by the Conviction.
Tho' the Statute doth give ſuch Avoidances to the Uneverſities, by
of the Name the Name of the Chancellor and Scholars, and they ſue for the fame
verſity by the Name of the Chancellor, Maſters, and Scholars of Oxford, or
Cambridge, which is the true Name of the Univerſity; yet they ſhall
have the Benefit of this Act, notwithſtanding the Miſnoſmer in it: For
in an Ad of Parliament miſ-naming of a Corporation, when the ex-
preſs Meaning appeareth, will not avoid the Act, no more than in a
Will; for both are to be taken according to the Meaning of thoſe
that are Parties to them: And thefe Clauſes that give the Benefit to
the Univerſities ate private Clauſes, whereof the Judges, without
pleading of them, cannot take Notice; and therefore, the Judges
ought to take them as they are pleaded. Trin. 11 Fać. the Caſe of
the Chancellor, Maſters, and Scholars of the Univerſity of Oxford. 10
Co. 57.b.
Upon Sci But notwithſtanding this Statute, if a Popiſh Recufant be feiſed of a
fure of two Manor, to which an Advowſon is appendant at the Time of his
Conviction, and for Non-payment of twenty Pounds by the Month,
the King doth feiſe into his Hands two parts of ſuch Manor, tho
there be no Mention made in the Inquiſition and Seiſure, eſpecially of
the Advowfon, yet becaufe the Statute of 29 Eliz. gives two Parts of
the Recufant's Poſſeſſions to the King, two Parts of the Advowſon will
follow the two Parts of the Manor, and the King, and not thc Chan-
cellor and Scholars of either Univerſity, will have Title to preſent to
two Turns. Mich. 14 Fac. Chancellor and Scholars of Cambridge v.
Walgrave. Hobart 1 27.
Advowfon in
Or if a Recufant be feiſed of an Advowfon in groſs, and the King,
grofs feifed by Vertue of the Statute of 3 Jac. co 4. which gives Power to the
os
Part. King to feiſe two parts of a Recuſant's Lands and Hereditaments,
doth ſeife the Advowfon as a Part of his two Parts, the Advowfon is
then in the King, and the Univerſity ſhall not prefent to the Avoidances
that ſhall happen during the Recufant's Recufancy ; becauſe the Uni-
verfities have no other Intereſt than as a Bifhop to prefent by Lapfe, and
not a real Eſtate: For that the Recufant notwithſtanding their Right,
and his
. Diſability by the Statute to preſent, remains Patron as to o-
ther Purpofes, as to confirm a Leafe of the Incumbent, unlefs the
King doth feiſe it, and then the King is Patron pro Tempore, and not
the Recufant, and ſo the Univerfity cannot have the Right of prefent-
ing to the Advowfon, as to an Advowſon whereof a Recufant is
feifed
So if a Recuſant being attainted of Treaſon, or Præmunire, or out-
artainted of lawed in a perſonal Action, he ceafes to be Patron, and the Univerſity
Theafan &to shall not preſent : And fo, tho' a Recuſant be difabled to grant away
any. Avoidance by the aforefaid Statute. 3 Jac. 5- yet he may, during
his Rccufàncy, grant away his Patronage in Fee to another, or in
Tail for Life, or for Years; and by ſuch Grant he: ccafes to be Patron
in Poffeffion; during the Continuance of fuch Eſtate by him granted;
and the Univerlaty loſes the Advantage of prefenting, tho' he continue
Reculant: And the Reafon why the Grant of the Advowſon for Years
is out of the Statute, and not within the Word's next Avoidance, is
becauſe the. Advowfon is fo in him that he hath the Grant of for
4
Years,
Rccuſant
Chap. XI.
IOI
The Complete Incumbent.
.
ز
Years, that he may accept of a Releaſe in Fce from the Patron in Patronage
forfeited.
Fee; whereas, by the Grant of two or three Advoidances, the Patro-
nage is not fevered, neither may ſuch Grantee accept of ſuch Releaſe
from the Patron ; (but Quære) Whether theſe Grants Thall defeat the
Univerſity ; for that by the Words of the Statute, the Recufant is dif-
abled to grant any Avoidances, which may admit of a large Interpreta-
tion? However, it is admitted, that if ſuch Grants be made by Covin Gratis made
of the Recuſant, the Statute of the 3 Jac.c. 5. ſhall extend to give the by Govin.
Univerſity the Avoidance: Yea, and altho that one doth grant an
Avoidance before he is a Recufant, and then turns Recufant, unleſs
the Recufancy doth follow by Covin of the Grantor, on purpoſe to
defeat his Grantee; as was the faid Caſe of the Chancellor of Oxford.
CO. IO. And the Law is owned to be the ſame, in caſe the Fee of the
Advowſon, before the Recufancy, be granted by Covin; but then Co
vin in theſe Cafes ſhall not be intended, unleſs it be averred. Theſe Avetméhi.
Things were held, and delivered by Jones Juſtice, in his Argument,
whereby he held, as the chief Point, That the King by his feiling of á
Recuſant's Advowſon in grofs, did defeat the Univerlity of the Avoi-
dance: With whoin 'tis faid, that Hobart and Winch did ágree, as to
that Queſtion ; but Hutton, contra. Hil. 29. Jac. Sanden, &c. v. U:
niverſity of Oxford, and Witton. Fories 17. But a Diſcontinuance
of the Suit was cauſed by one of the Plaintiffs, and fo no Judgment
given.
If a Recufant hath Right of Nomination to a Benefice, and another Recuſant
hath the Right of Prefentation, yet the Recufánt is diſabled by this nominates
Act to nominate : For altho' only the Word Preſent be uſed in the
Statute, yet that fhall extend as well to Nomination : For the Intent
of the A&t is to prevent Recufants to appoint who ſhall be Incumbent,
and the Cafe of Nomination is in equal Miſchief with that of Preſen-
tation, and in the fubfequent Claufe, the Right of Nomination is given
to the Univerſities, as well as Preſentation. Cawley's Laws againft
Recufants, 228, 229. In a Gyare Impedit brought by either of the U-
niverſities, it muſt be alledged, That the Party was a Recufant cott Allégátióni
vičt, at the fame Time when the Church became void; for without by the Uni-
ſhewing that, they do not enable themſelves to preſent. Cawley's
Law againſt Recuſants, 230. Then fuppoſe the Cafe to be, That A.
is a Recufánt convict, and by Pardon that Conviction is párdoned; (as
it hath been held it may) and then the Church becomes void: I con- Pardon.
ceive, the Univerſity fhatt not have the Prefentation, for that thé Pa-
tron was no Recufant convict at the Time the Preſentation became
void, his former Conviâion being taketi áway by the Pardon : For
the Pardon hath rìot only pardoned the Conviction, but alſo reſtored
Party. re-
the Party to his Ability, notwithftanding that he do fiot conform; fered
for the Word convi&t is to be underftood throughout the whole Sta-
tute, altho' that it be left out in the Middle of the Sentence in the
faid Statutc, which Enaeis, That every Perfön who ſhall be Recu-
fant convict, during the Time that he thall remains a Recufant (and
ſays not convi&t) ſhall be diſabled to preſent to any Church, 6. Trin.
11. and M. C. B. the Lord Petre o. the Univerſity of Cambridge and
Woodroffe. 3 Levinz. 332. And indeed, no Perfon, ſtrictly ſpeaking,
can properly be ſaid to be a Recuſant, before he be convicted of it
for 'tis the Conviction which in Law is the Proof and Evidence of his
Recufancy. It hath alſo bcen Enacted, That;
verſities.
4
ز
Wibereas
1
ſent to Bene-
Other Per-
Conce
, ,
102 The Clergy-Man's Law: Or, Chap. XI.
Datronage Whe
pereas in and by a certain Clauſe mentioned in one sã of
forfeited.
Parliament made in the third Eear of the Reign of King
5.W. and Mi James the firſt, entituled, An Act to prevent and avoid Dangers
Popiſh Re- which may grow by Popiſh Recufants ; it is enaxed, Chat every Per-
cuſants dif- loni od Perſons, that is op lijall be a popiſi
) Reculant Conviữ, du-
abled to pre- ring the Time that he ſhall be or remain a Recuſant, mall from and
fices, C. after the End of that pzeſent Sellion of Parliament, be utterly diſ-
abled to preſent to any Benefice with Cure od without Curé, Pre-
bend, op any other Ecclefiaftical Living, or to collate od nominate to
any Free-School, Hoſpital, od Donative whatſoever, and from the
beginning of the ſaid Parliament, ſhall likewiſe be diſabled to grant
any Avoidance to any Benefice, Puebend, 02 other Ecclefiaftiçal Vi
ving.
Be it enađed by the King and Dueen's mot ercellent Pajeffies,
ſons refuſing by and with the advice and Conſent of the Lolds Spiritual and Tem
fubfcribe the pozal, and Commons in this preſent Parliament aſſembled, and by
Declaratton, Authodity of the ſame, Chat every perſon who fall refuſe od nera
lex to make, repeat, and ſubſcribe the Declaration mentioned in one
At of this preſent Parliament, entituled, An Act for the better fe-
curing the Governnient, by Difarming Papiſts, and reputed Papiſts :
When the ſame ſhall be tendred to ſuch Perſon, by any two ou move
Juſtices of the Peace, as in the ſaid *& is enađed, oj wbo fall up-
on Notice given, as in the ſaid nå is diređed, refule og forbear to
appear before themi, foy the making, repeating, and ſubſcribing there-
of, and ſhall thereupon have his Name, Sirname, and uſual Place
of abode certified and recoided at the General Duarter: Seſions, to
ve holden for the Shire, Riding, Diviſion, of Liberty, for which luch
two Juſtices fall ve Juſtices of the Peace, by the Clerk of the
Peace, or Town:Clerk, as in the ſaid Na is appointed; every ſuch
Perſon ſo recoided, ſhall be from and after the Time of fuci
) Recoid
made, adjudged, taken and efteeined, diſabled to make ſuch Preſent-
make a Pre- tion, Collationt, Nomination, Donation, 02 Hpant of any avoidance
fully as Po- of any Benefice, Prebend, or Ecclefiaftical Living, as fully and am-
piſh Recu- piy, as if ſuch perſon were a Popith Reculant conviã by the Laws
trary notwithſtanding. And that the Chancello, and Scholars of the
Tiniverſity of Oxford, and the Chancello and Scholars of the Uni-
verſity of Cambridge, by what Name od Names (oever they od either
of them are incozpojated, ſhall relpeäively have the Preſentation,
Noinination, Collation, and Donation of and to every ſuch Bente-
fice, Plebend, od Eccleliaftical Living, School, Doſpital and Dona-
Chancellor,
tive, ſet, lying and being in the reſpeãive Counties, Cities, and
Univerſities other the Places and Limits in the ſaid ac of the Third of King
Preſentatior. James mentioned, as in and by the ſaid ax is direõed and appointed,
ſo often as any of them fhall become void, accolding to the limita
tions, Diređious, and Proviſions in that behalf limited, enaged
and provided.
The Truſtees
and be it farther cnawed by the authority afożeſain, That where
of Popiſh Re- any perſon or perſons are on ſhall be ſeiſed od poflelied of any ad-
vi&t dilabled vowloni, Right of Preſentation, Collatióni, oi nomination, to any
to preſent, ſuch Ecclefiaffical Living, Free-School, od Hoſpital, as aforeſaid,
in Truift foz any Papiſt of Popiſh Reculant, who ſhall be convided
0!
Diſabled to
fants.
And the
arc. of the
Soco
4
Chap. XI. The Complete Incumbent.
IO3
forfeited.
vi
lations, and Grants, ſhall be null and void to all intents and Pur:
fpeäive Univerſities, as aforeſaid, tipon every avoidance, fhall have
the Preſentations, Rominations, and Collations, to ſuch Ecclcfia
ſhould have the ſame, in cale Inch Récuſant convià, or diſabled, were
preſent ac, to be recovered in any of their Majeſties Coucts of Re.
either of the ſaid Univerlities, fall not Preſent od JNominate to
02 diſabled, accouding to the true Jntent and Meaning of the laid Patronage
Statute, made in the Third Year of the Reign of the ſaid King
James the firſt, oj by this preſent Ax ; every ſtich Perſon and Per-
tons ſo ſeized and poflefled in Truſt for any Papiſy 02 Popili
, Recu.
ſant conviit on diſabled, thall be, and are hereby adjudged to be diſ-
abled to preſent, Nominate, 02 Collate to any ſuch Ecclefiafticar
Viving, Free School, B? Hoſpital, o to grant any avoidance there
of; and their and every of their Preſentations, Nominations, Col:
poſes whatſoever ; and the Chancellors and Scholars of the laid re
ttical Livings, Free Schools, and Hoſpitals, in ſuch manner as they
ſeiſed 02 poflelled thereof.
and in caſe any Cruſtee o2 Cruffees, oj Postgaree di Spalitee of The Truſtees
any Avoidance, hereafter Pzelent, Nominaté, oz Collate, or cauſe to and Grantees
be preſented, nominated, o2 collated, any Perfon to aliy Cuch Eccle- to give No
fiaftical Living, Free-School, or Hoſpital, whereof the Truf fhall tice of any
be fuz any Reculant convi& o2 diſabled, without giving notice of the before they
Avoidance in Writing to the Uice Chancello2 for the Timė being of preſent, Soco
the Univerſity, to whom the Preſentation, Nomination, of Collation
thall belong, accouding to the true Intent of this ax, within Three
gyonths after the Avoidance ſhall happeni, lúch Truffee 02 Truffees,
qotgagees od Hantees, ſhall fo?feit and pay the Sum of five Forfeiture.
hundred Pounds to the laid reſpetive Chancelláis and Scholars of
either of the ſaid Univerüties, to whom Inch Pielëntatioli
, Egmina-
tion, o2 Collation ſhall belonis, accouding to the true Intént of this
cold, by aäion of Debt, Bill, Plaint, 02 Infoqmation, wherein no
Enoin, Proteaion, oz Wager of Law, ihall be allowed.
Provided always, That the ſaid Chancellos, and Scolars, of Chancellor,
c. not to
any Benefice with Cure, Prebend, oz: ather Ecclefiaftical Living, having ano.
preſent one:
any perſon as Mall then have any other benefice with Cure of ther Bene-
Souis ; and if any ſuch Peſentation ſhall be, had od made of any
ſuch perſon ſo beneficed, the ſaid Preſentation ſhall be utterly void;
any thing in this At to the contrary notwithſtanding.
Provided, That if any ſuch perſon ſo preſented, or nominated to Proviſo.
any Benefice with Cure, wall be abſent from the laine above the
Space of Sirty Days in any one Year, that in ſuch Caſe the ſaid
Benefice ſhall become void.
Provided nevertheleſs, Chat if any ſuch Perſon ſhall preſent him- How the Per-
ſelf before the Juſtices of the Peace at the General Duarter-Sellions ſon may be
to be hoiden fou the County, Riding, Diviſion 02 Liberty where his of the Dija-
Name was recoided, and ſhall there in openi Court make, repeat and bility.
ſub cribe the ſaid Declaration, and take the ſeveral Daths contained
in one gå of this preſent Parliament, entituled, An Act for the
Abrogating of the Oaths of Supremacy and Allegiance, and appointing
other Oaths, he ſhall from thencefoth be diſcharged of and from the
ſaid Diſability, and be enabled to make ſuci Preſentation, Collation,
Nomination and Donation, and Giant of any avoidance to any Bes
ncfice,
fice
fozfeiteo.
1
3. 6. 27.
Oaths,
Recuſants
convi&,
or
104 The Clergy-Man's Law: Or, Chap. XI.
Patronage nefice, Piebend op Ecclefiaftical Living, School oz boſpital, as if
this áã had not been niade. Stat. 1 W. and Mar. Sel. 1. cap. 26.
Stat. 7. 8 W. Note, It hath alſo been enacted by 7.8. W. 3. c. 27. to the Effect
following, viz.
Refuſing
That from and after the Fird Day of May 1696, all and every per:
ſon and Perſons, who fali celule to take the Daths mentioned and
appointed to be taken, in an ał of Parliament made in the Fitte
Year of his Yajeſty King William and the late Queen of Blétred age-
moiy, intituled, An Act for Abrogating of the Oaths of Supremacy
To forfeit,
and Allegiance, and appointing new Oaths, or either of them, when
Esc
. as Popirn tendiéd to him oj them by any perſons lawfully authodzeð to admi-
rifter and tender tlje ſáme, thåll refute oj negle& to appear, being
lawfully fummoned foị that Pürpöſë, ſhåll, until he od they have du-
ly taken the ſaid Daths, be liable to incur, fožfeit, pay and ſuffet
the Pertalties, Fo{feitures and Diſabilities, which Üy tlje Law and
Statutes now in force åre indiked on Põpiili Reculants conviä.
Upon Rcfu-
and the perſons lo tending the ſaid Daths, ſhall upon every Ré:
Námes to be fulal 02 Default of Appearance as afdįélaid, tećożd in Parchment
recorded, &c. the Chriftian and Sirnames, and places of abode of the Perſon az
and fhall certifie, the fáið Record to the Juſtices of alle at their nert
Sellions in the ſame County, who ſhall fožthwith eltreat and certiae
the ſame into the Exchequer, to be there entred of Recoid, that the
ſaid Court of Exchequer may thereupon tflue out Proceſs againſt the
Tands and wds of the faió Perſon and Perſons, as againt Popid,
Reculants convia.
That if any perſon thall, after the ſaid fic& Day of May, mali-
Concerning
ciouſly by Türitins, Punting, Pleaching, Teaching, ol adviſed
Writing, Speakins, utter, publiſh oj declare, That his then Majeſty was not
Preaching,
the Lawful and Rightful King of theſe Realms ; 0d that the late
Teaching,
King James, od the pretended Piince of Wales hath any Righé oi Title
to the Crown of theſe Realms, op any other perſon, otherwiſe titan
accoding to an aä made i W. and M. entituled, An Act declaring
the Rights and Liberties of the Subject, and Settling the Succeſſion of
the Crown ; ſuch Perſon being thereof lawfully convited, thall incie
the Dafiger and Penalty of & Prämunire, mentioned in flje Statute
of Præmunire made 16 R. 2.
Quakers De-
Alſo by the ſaid A&'cis provided, That Quakers, who fhall make and
claration of Publcribe the Declaration of fidelity mentioned in an ax made W.
Fidelity
and M. cap. 18 and ſhall produce ſuch Witneſſes and Certificates as
Certificates. are by the ſaid ax required, proving theniſelves to be Quakers, and
ball alſo own King William to be Right and Lawful King of theſe
Réalms, thall be erempted from the penalties and Foifeitures of
this da provided fou ſuch as fhall teliile the Daths aforeſaid.
Provided always, That all oy any of the Pains, Penalties oj Dil
der the Privy abilities, to be incurred by anv Perſon as a popith Recularit convía,
for not taking the Dath aforeſaid, may be pardoned oj diſcharged by
the King inder the Plivy Scal, notwithtanding tijis aä.
Diſadvantage
Alſo the rightful Patron may loſe his Right to preſent, by fuffer-
by being out- ing himſelf to be outlawed : For if an outlawed Perſon hath an Ada
vowſon
malicious
Pardon un-
Seal
liiwed.
Chap. XI.
105
The Complete Incumbent.
Diſadvan-
cito.
vowfon that doth fall void during the Outlawry in Force, ſuch Avoidance Right of
1Patronage
is forfeited to the King : And ſo it is if he be outlawed only in an
fo2feited.
Action of Treſpaſs, or other Perſonal Action. 8 R. 2. Quare Impedit
200. And although the Perſon outlawed be but Tenant at Will of a
tage by being
Manor, to which an Advowſon is appendant. 5 H. 5. 3. Or if a Per- outlawed.
fon hath a Grant only of a next Avoidance, and be outlawed at ſuch
Time when the Church voids, the Right of Preſenting doth belong to
the King. Book of Entries 485. and the King in ſuch Cafe will pre-
ſent, though the Outlawry be pardoned. 9 Ħ. 6. 57. by Paſton. But
when the King muſt preſent in his Turn, or loſe the Preſentment.
Mich. 2 Jac. King v. Biſhop of Wincheſter and Champion. 2 Cro. 54.
But if an Uſurpation be made by the King upon a rightful Patron, Outlawry re-
who brings a Quare Impedit, and hath Judgment to recover, and then
is outlawed, and the King's Clerk doth reſign, and takes a new Pre-
ſentation of the King, by reaſon of the Outlawry, and is again inſti-
tuted and inducted, the Patron reverſeth the Outlawry, and brings a
Scire facias to have Execution of the Judgment; it was adjudged,
That he ſhall have Execution thereof, and remove the Incumbent;
becauſe
any Incumbent that comes in pendente Placito, ſhall be re- Pendente Plá.
moved, eſpecially being made Party to the Writ, elſe the Incumbent
in this caſe would have Advantage of his own Practice, and any In-
cumbent being ſued, might reſign and diſappoint the plaintiff of his
Suit. Mich. 27 and 28 Eliz. Beverly v. Cornwall. 3 Cro. 44. Mich.
30
and
31 Eliz. Gouldsborough 103. Trin. 30 El. 1 Anderſon 148.
Mich. 36 and 31 El. Moor 269. Savil 89. And in this Caſe it was
faid by the Judges, That if a Perſon outlawed hath a Manor to which
an Advowſon is appendant, and the King takes the Profits, and the
Church voiding during the Outlawry, the King doth preſent his Clerk;
though the Party doth reverſe the Outlawry for Error, yet he ſhall
not in ſuch caſe be reſtored to the Preſentment, becauſe it is but a
Thing acceſſary to the Principal, viz. the Manor and the Profit only
of the Advowfon. But otherwiſe it is, if the Church be void at the
Time of the Outlawry, and the Preſentment thereby, forfeited as a
Chattel, principal and diſtinct ; upon the Reverſal of the Outlawry
for Error, the Party thall have Reftitution of the Preſentment. Mich.
30 and 31 Eliz. Beverly v. Cornwall. Moor 270. becauſe there it is
the Thing principally forfeited by the Outlawry.
"Though the Law doth give Avoidances of Churches forfeited by Forfeitures
Outlawry to the King, yet the King may grant away ſuch Forfeitures granted
to a Subject : But if the King doth grant omnia Bona de Catalla te-
Pentiam reffudegztithi, &c. withrin ſuch a Liberty to a Subject, it is a
Queſtion, Whether Avoidances of Churches that come to the King by
Outlawries ſhall paſs from him by ſuch Words, unleſs they had been
more fpecial: Foraſmuch as ſuch' Avoidances are ſpecial Chattels, and
not uſually intended or thought of, when Men fpeak generally of
Goods and Chattels. And Anderſ042 held, that they ſhould not paſs,
but it was adjourned. Mich. 31 and 32 Eliz. Queen v. Archbiſhop of
Canterbury. Fane and Hudfor. 4 Leonard 107.
The Right of Preſenting may be alſo loft from the Patron to the Patron at-
King, by his being attainted'; but if the Lefſee of an Anvowſon for tainted.
another's Life be attaint, the King muſt take his Intereſt and Advan-
tage during the Time, viz. during the Life of the Ceſtuy que vie, or
at leaſt by an Avoidance which happened during the Life of Ceft113 que
cie, or if filled by Uſurpation before it void again, or otherwiſe, he
С с
Thall
away.
106
The Clergy-Man's Law: Or, Chap. XI.
l.iccncc.
born.
Patron be-
cones a
Right of ſhall never have it, as is ſaid. Paſch. 26 Eliz. Birerly v. Archbiſhop
patronage of Canterbury. Owen 2. the fame Caſe, 3 Cro. 44.
Alſo the King may gain a Right of Preſenting to a Church upon
Appropria.. the Account of an Appropriation made without his Licence: For if an
Advowſon (whether held of the King or not) be appropriated without
his Licence, although another be Founder, the King may by his Pre-
rogative ſeiſe the Advowſon ; and being feiſed by him (tho' the Inheri-
tance he not forfeited) he ſhall have the Preſentments to the Avoid-
ances, in the Name of Diſtreſs, until ſuch 'Time as Fine is made to
him for making the Appropriation without his Licence. 21 E. 3. 5. by
Shard. Mich. 18 and 19 Eliz. in Grendon's Cafe v. Biſhop of Lincoln.
Plowden f. 499.
Purchaſe by
So if an Alien born doth purchaſe an Advowſon, and the Church
an Alien
doth become void, after Office found that he is an Alien, the King ſhall
preſent. Parſon's Law, chap. 10. f. 74. Or if a Villain doth purchaſe
an Advowſon, the Lord ſhall preſent, becauſe the Lord upon ſuch
Purchaſe by the Villain, may claim the Inheritance of the Advowſon,
and upon ſuch claim the Intereſt thereof ſhall be veſted in him, and
then the Lord in his own Right ſhall preſent to an Avoidance, Par-
ſon's Law, chap. 1o. fol. 75. And Note, That if the Lord doth pre-
fent his Villain to a Church, this is no Enfranchiſement of him. Mich.
8 Fac. C. B. Waller's Cafe, Parſon's Law, chap. 9. fol. 72.
The Right of Preſenting may be alſo transferred from the Patron
a
Bankrupt.
by becoming a Bankrupt; for if the Patron of a Church, who is a
'Trader within the Statutes made againſt Bankrupts, commits an Act
of Bankruptcy, and a Commiſſion of Bankrupt is fued out againſt him,
the Commiſſioners may ſell the Advowſon; but if the Church be void
at the Time of ſuch Sale made, the Vendee ſhall not preſent to the
void Turn, but the Bankrupt himſelf, but the Sale of the Advowſon
is good; Law againſt Bankrupts, chap. 10. f. 146. For Sale made
in ſuch Caſes by the Commiſſioners of the Bankrupts Goods and Chat-
tels, is in order for the Payment and Satisfaction of his Creditors their
juſt Debts, but the void Turn of a Church is not a Matter valuable,
which can go in Diſcharge or Satisfaction of ſuch Debts, though the
Advowfon or next Preſentation, while the Church is full, may be ac-
counted to be ſo, and conſequently may be granted or aſſigned by the
Commiſſioners.
Forfeitureby Alſo the Right of Preſenting may be forfeited by Alienation; for if
Leſſce for Life of a Manor, to which an Advowſon is appendant, alien
the Manor, by which he commits a Forfeiture, and after the Church
voids, the Leſſor may preſent, and that before his Entry into the Ma-
nor for the Forfeiture, becauſe his Entry is lawful in any Part. 19 H.
6. 33. 16 E. 3. Quare Impedit 146. Contra 39 E. 3. 21. So if he ali-
ens one Acre of the Manor only with the Advowſon, by which the
Advowſon is appendant to the Acre, the Leſſor may preſent, and that
before Entry into the Acre. Roll's Abr. 2. p. 352. Contra 18 E. 3. 44.
If Tenant for Life of an Advowſon in grofs doth grant it in Fee,
by Tenant
it is no Forfeiture ; yet if he doth levy a Fine thereof, &c. this is a
Forfeiture to him in Reverſion : But if after ſuch Fine levied, and be-
fore any Claim made by him in Reverſion, the Church doth void, al-
tho' the Reverſioner doth then preſent; yet it is ſaid, that he ſhall not
have the Preſentment: For notwithſtanding the Forfeiture, until he in
Reverſion hath made his Election, to take Advantage thereof, the E-
ſtate of the Tenant for Life is not determined; and if he ſhould make
his
Alienation.
Fine levied
for Life.
2
Chap. XI. The Completė Incumbent:
107
1
.
his Claim after the Death of the Incumbent; yet the preſent Avoid- Patronage
fozfriter, ci
ance ſhall be a Chattel veſted in the Tenant for Life, which cannot
be deveſted by the Preſentment of him in Reverſion. Trin. 13 Car.
B. R. Spring and Sir Julius Cæſar's Cafe, adjudged upon a Writ of
Error. Roll's Abr. 2. p. 352. Co. Lit. 251. Paſch. 12 Car. Spring vi
Dame Cæſar. Jones 391. Yet Paſch. 7 Car. C. B. in the Caſe of
Merton-College 2. Wood and Ramſey'. Lit. Rep. 366. the Court
ſeemed to be of another Opinion; where the Cafe was, That the
Warden of Merton-College makes a Leaſe of a Manor unto which
an Advowſon was appendant, which was not warranted by the Statute,
and dies, the Church then becomes void, and the Succeffor preſents be- Entry
fore any Entry made into the Manor ; and it was urged, that he could
not preſent, for that the Leaſe was not void, but voidable by Entry of
the Succeſſor; and he not entring before the Church voided, the void
Turn was a Chattel veſted in the Lefſee, and the Succeſſor's Entry af-
ter ſhall not by any Relation deveſt it; but the Court (ſays the Book) Alienation
ſeemed to be of a contrary Opinion. But if a Diffeiſor of a Manor, by aDiſſeiſor,
to which an Advowſon is appendant, doth alien, the Diſfeifec may pre-
fent before his Entry into the Manor. 19 H. 6. 33. b. But Qulære : For
Brook thinks he cannot make Title without the Manor. Br. Quare
Impedit 11. But if the Diſſeiſor of a Manor to which, &c. doth
fent, when the Church is void, if the Diffeiſee doth re-enter into the
Manor, he may preſent at the next Avoidance. 14 H. 6. 15, 16. . So
Re-entry.
if the Diffeiſee doth re-enter when the Church is void, he may preſent,
and have a Qzare Impedit, by Townſend. 2 H. 7. 2. Littleton Rep.
367.
And here Note: If one that is feifed of an Advowſon doth leaſe the Leaſe extin-
ſame for Years, and the Leſſee doth accept of a Preſentation from the guiſhed.
Leſſor, this is an Extinguiſhment of the Leaſe. So if a Man doth
prefent to his own Church, as Proctor to another, by this he loſeth his
Advowſon. 42 Eliz. C. B. Rudd v. Topley. Owen 142. Litt. Rep. 282.
And if a Biſhop doth preſent by Uſurpation unto an Advowſon, as in
the Right of his Church, and his Clerk doth die Complete Incum-
bent; Quære, Whether the Advowſon be not in Mortmain, and forfeited Mortmair.
to the King? See 47 E. 3. II.
pre-
}
CH A P. XII.
Of L A P S E.
the laſt Place, the Right of Preſenting may go from the true Patron Patron dif-
to others, by his Lapſe or Neglect. And firſt, By not preſenting in abled by
.
ſuch Time, or taking ſuch Courſe in Law as to prevent the Right of
Preſenting from going to another, by reaſon of ſuch Lapſe: For ſo it
may do, if the Church or Benefice be of the Patronage of a com-
non Perſon in moſt Caſes; that is, unleſs it be a Donative: For they Donatives.
remaining void, never go in Lapſe ; but the Ordinary may coinpel the
Patron to fill the fame by Church Cenfures. Paſch. 3 Jac. Fairchild
v. Gair, Yelverton 61. And tho' uſually a free Chapel is Donative,
and ſo goes not in Lapfe ; yet by the Foundation, or after Compoſition
it
may be Preſentative, and ſo be ſubject to Lapſe, and yet remain
Сс 2
free
108
The Clergy-Man's Law: Or, Chap. XII. .
Opr.
2. f. 8.
Of Lapſe, free from the Juriſdiction of the Ordinary in whoſe Dioceſe it is ſitu-
ate. Rawſon and Burgue's Cafe. Trin. 23 Car. B. R. Stile 82, 83.
But if a Church or Benefice be of the Patronage of the King, or ho
hath a Right of Preſenting thereto, he can never loſe his Turn to the
Ordinary, by his Neglect of preferring his Clerk thereto: For altho'
Stat. 14 Ed. it hath been enacted, by the Statute of Prærogativa Regis. 17 Ed. 2.
.
If the King's That of Churches being vacant, the advowſons whereof belong to
go in Lapfc. the king, and other pzeſent to the ſamne ; whereupon Debate ariſeth
Sec 7 Cò. 28. between the King and other, if the king by the award of the Court,
Dyer 36.
doth recover his Pieſentation, though it be after the Lapſe of Sir
months from the Time of the avoidance, nu Time fall prejtidice
him, ſo that he preſent within the Space of Sir Ponths.
Hob. 214.
It ſeenis not.
From which it ſeems to be inferred, That if the King had not pre-
fented, his Church, as well as a common Perſon's, ſhould go in Lapſe;
Yet the Law is not taken fo to be. Mich. 28 and 29 Eliz. Beverley
v. Biſhop of Canterbury and Cornwall. i Anderſon 148. Trin. 4 Fać.
King v. Matthew, Brownloe and Goldsborough 1. Yelverton 90. DoEtor
The Reaſon. and Student, l. 2. C. 36. 2 Inſt. 273. And the Reaſon may be, be-
cauſe the Words are not particular enough: For tho' the Statute of
Plenarty by Weſtminſter 2. ordains, That Plenarty by Six Months ſhall bar the
Party that hath Right, yet it ſhall not bar the King, becauſe he is not
exprefly named in the Statute. So no Statute of Limitation ſhall bar
him: For his Prerogative, Nullum tempus occurrit Regi, faith Jones,
fhall not be taken away by a general Statute. Hill. 20 Eliz. C. B.
Standen, &c. v. the Univerſity of Oxon, and Whitton, Jones 21. And
therefore not by theſe general Words, as I ſuppoſe: And fo 'tis faid in
Magdalen-College Cafe. 11 Coke 74. b. and the fame Cafe, Roll's
1 Rep. 151.
I fac. 2. con So by Act of Parliament. 1 Jac. 2. St. James's Weſtminſter was made
cerning St.
James's Wer- a Pariſh, and divided from the Pariſh of St. Martin's, and a Church
minſter.. erected ; and it was provided by the fame Statute, That Dr. Tenniſon,
the then Vicar of St. Martin's, ſhould be the firſt Rector of St. James's
Beriſh, and that the Patronage of the Advowfon ſhould belong to the
Biſhop of London and the Lord Jermin, alternis vicibus; the firſt
Rector, after Vacation by Dr. Tenniſon, to be preſented by the Biſhop
of London, and the next by the Lord Jermin and his Heirs, and ſo
alternis vicibus.
Dr. Tenniſon was promoted to the Biſhoprick of Lincoln, by which
the Church of St. James became void, and adjudged, that altho' it
was by the Statute cxprefly appointed, that the Biſhop of London
ſhould preſent to the Avoidance; yet the Statute deſigned only to di-
rect the Methods and Turns between the Patrons, and not to exclude
the King of his Prerogative; and altho' this was a Church newly erect-
ed, yet the King having the Prerogative to preſent to all Churches
where the Incumbent is promoted to be. Biſhop, ſhall have it in this
Church when 'tis erected; ſo that it was held, that the King ſhould
preſent to the Avoidance by reaſon of his Prerogative, and not the Biſhop
of London, notwithſtanding the ſaid Ad of Parliament. Mich. 5 W.
and M. B. R. Rex & Regina v. Epiſo London & Dr. Birch. 3 Le-
vinz 382. See the fame Cafe, Caſes in Parliament 164. 2 Silk. 540.
4 Mod. 190. 1 Show. 164. Cumberba. 301, &c. vide ante Chap. 9. And
in
Chap. XII. The Complete Incumbent. .
109
Noticcof
in caſe the King doth not preſent, all that the Ordinary can do, is to mf Laple,
fcqucfter the Profits of the Church, and appoint a Clerk to ſerve the
Cure. 18 E. 3. 21. 14. H. 7. 21. Doctor and Student, l. 2.C. 36. Sequeltra-
But that we may the better know when the 'Title of Lapſe doth tion:
take Place, as to fuch Benefices, the Preſentnent to which may be loft Avoidance.
by Lapfe, we muſt firſt conſider, How and by what Means the Church
in Queſtion doth become void. For in ſome Caſes the Ordinary muſt
give Notice of the Avoidance, before the Patron is bound to preſent, or
the Title of Lapſe can accrue to him upon the Neglect of Preſenting.
In other Cafes, the Patron muſt take Notice of the Avoidance, and
make Prefentment at his Peril within ſuch a Time as the Law allow-
eth him to provide for the Church. But in what Cafes Notice of an A-
voidance is to be given by the Ordinary, before Lapſe can run, and when
it runs from the very Time that the Church is void, hath been already
declared in the foregoing Chapters ; that is,
From the Time that a Church is void, where Notice is not neceffa- Notice from
ry, and from the Time of Notice duly given of an Avoidance, in ſuch what Time.
Cafes when it is neceſſary, and not from the 'Time of Notice given of
the Refuſal of a Clerk preſented. 14 H. 7. 21. 15 and 16 El. Dyer
327. Mich. 15 Eliz. 3. Leonard 46. Pafch. 3. El. B. R. Every Pa-
tron, as well Lay-man as Clerk hath by the Common Law fix Months
allowed him to provide for his vacant Church, within which no Or-
dinary can collate by reaſon of Lapfe, Doctor and Student, 116. b. Czt-
ſtoms of Normandy c. 1. Patronage 870. which fix Months allowed, are
to be accounted ſuch Months as make an Half-ycar, conſiſting of 182
Days. Paſch. 5 Jac. Catesby v. Baker and the Biſhop of Peterbo-
rough, Yelverton roo, Trin. 5 Jac. Biſhop of Peterborough v. Catesby.
2 Cro. 166. 6 Co. 61. and not according to twenty eight Days in the
Month, as ſome have thought. 22 H. 7. Keilway 88. Trin. 27 Eliz.
Albany and Biſhop of St. Afaph's Cafe. i Leonard 31. (but the
Law doth not regard the odd Days in the Year ;) and the Day the
Church becomes void, is not to be taken into the Account of ſix
Months, but is to be excluded. Catesby's Cafe. 6 Co. 61. Cornwallis
v. Hood, Carter 44. Within which ſix Months allowed, every Patron
muſt preſent his Clerk; yea, though an Infant or Feme Covert, for
Nonage or Coverture will not excuſe this Neglect, or prevent a Lapfe.
33 E. 3. Quare Impedit 46. Mich. 15 El. C. B. í Leon. 32.
Tho the Patron hath lix Months as aforeſaid, before Lapſe incurs, Caution to
yet it concerns him not to delay preſenting till the ſix Months be almoſt the l'atron
expired: For if he doth preſent but one Week before the fix Months be his Preſen-
ended, the Ordinary may pretend that he hath not Time to cxamine the tation.
Clerk. Or if the Ordinary refuſe the Clerk for Inability, becauſe un-
learned, &c. the Patron will not have Time to preſent anew within
the ſix Months, but Lapſe may incur. And tho' the Patron neglecting
to preſent, doth bring his Quare Impedit againſt the Biſhop within the
fix Months, if the Church remained open for the Time of Preſentment,
had it been made, Lapſe ſhall not be prevented by ſuch Device, or the
Ordinary barred from Collating : For 'tis moſt unreaſonable, that the
Church by ſuch 'Tricks ſhould be kept void, or that the Patron Mould
make Advantage of an unjuſt Suit, and the Ordinary be puniſhed for
doing nothing amiſs. Mich. 15 Jac. Brickhead v. Archbiſhop of
York. Hobart 200.
In the Cafes in which Notice is to be given, the Patron negle&ting Stranger's
from Year to Year to preſent, Lapfe doth not run to the Ordinary; yet ded.
3
if
f
I10
The Clergy-Man's Law: Or, Chap. XII.
Bar to the
Patron.
How thie
anew,
DE Laple, if in ſuch caſe a Stranger doth preſent, and his Clerk is inſtituted and
Sorico
inducted, and not interrupted by the Patron until fix Months (account-
ing from the Induction) be expired, the Patron is without Remedy for
that Turn: For that tho' he had not Notice from the Ordinary of the
Avoidance, (for which Reaſon the Ordinary can have no Advantage
A notorious of Lapfe) yet the Induction of the Stranger's Clerk is a notorious Act,
of which the Patron as well as the Country might have taken Notice.
Paſch. 39 El. Servein v. Biſhop of Lincoli. Noy 65. Paſch. 17 Jac.
Sir William Elvis v. Archbiſhop of Tork and others. Hobart 318.
Wrongful
But if a Biſhop doth collate his Clerk, either before he gives Notice
Collation no of an Advoidance, where Notice is to be given, or at any Time within
the lix Months limited to the Patron to fill his Church, the Patron
may at any Time after preſent his Clerk : For tho' wrongful Collati-
on makes ſuch a Plenarty as ſhall bar the Lapſe to the Metropolitan
and King, yet it is no Bar to the true Patron; and if the Biſhop doth ad-
mit the Patron's Clerk, the other is out ipſo facto; or if the Biſhop
will not admit him, the Patron may as well then, as at any 'Time be-
fore, have his Reniedy at Law againſt the Biſhop. Hill. 17 Jac. Gaw-
dy v. Biſhop of Canterbury and others. Hob. 302. And therefore if
the Ordinary doth collate within the Patron's lix Months, and then the
fix Months paſs, no Preſentation being made by the Patron, the Ordi-
Ordinary nary; if he will have the Benefit of a Lapfe, muſt collate of new; for
muſt collate the firſt Collation being by Wrong, cannot by Time become rightful
and therefore doth not put the Patron to his Quare Impedit, for that
it was but as a Proviſion for the Time, and there ought to be a new
Act before it ſhall be a good Collation, by Roll's 2. p. 368. And yet
Ratione Lap- it is faid, That if the King prefent Ratione Lapſus, when he hath no
fus, When
Title of Lapfe, that ſuch Preſentation is void, and that the Inſtitution
thereupon is but as a Collation of the Biſhops, and void to the Patron,
but full as to all others ; ſo that ſuch a Plenarty doth bar the Lapſe of
the Metropolitan and King. Paſch. 17 Jac. Gawdy v. Biſhop of Can-
terbury and others. Hobart 302.
Where İntti-
But if Inſtitution in ſuch Caſe be but as a Collation, I ſuppoſe it is a
a Collation. Collation by Wrong only, and therefore hath no greater Effect than
ſuch a Collation hath that is made deſignedly by the Biſhop, which is
only, as hath been ſaid, looked upon to be proviſional for a Time :
And therefore, if after ſuch Inſtitution or Collation, neither the Pa-
tron, nor other Perſon, by Uſurpation, doth preſent to the Biſhop with-
in the ſix Months it might ſeem (according to the Cafe in Roll's A-
bridg.) that the Biſhop may collate upon ſuch Collatee, as unto a Church
lapſed to him, and that the other might be thereby outed of his In-
cumbency. (Quære.)
However, if the Patron or other Perſon doth preſent to the Ordinary
veral Caſes before the fix Months be expired, and the Preſentation is void in Law,
the Lapſe
the Ordinary is not bound to admit the Clerk therein nominated, as I
the Biſhop. conceive, but may ſuffer Lapſe to run to himſelf, (and the Preſentee is
without Remedy) if within Time no other Preſentation is made. Or if
the Patron or Uſurper do make a Preſentation that is good in Law,and
in due Time, it may fall out that the Right of Preſenting may go to
the Biſhop by Lapfe, ſuch Preſentation notwithſtanding: For in ſeveral
Caſes the Ordinary may refuſe to admit and inſtitute the Clerk pre-
ſented, by Occaſion of which Lapfe may come to him ; and all Things
that are juſt Cauſes to deprive a Clerk, are juſt Cauſes to refuſe a
Clerk when preſented. 5 Co. 58. a. Parſ. Counf. 4, 5. .
3
But
none was.
tution is buc
That in re-
may go to
V
Chap. XII. The Complete Incumbent.
III
.م
and depri-
ved.
Where
there needs
no
But if a Lay-man be preſented, and the Ordinary doth inſtitute him, Di Lapſe,
and after the Patron's ſix Months be ended, the Ordinary doth deprive
him, and his Admiſſion, Inſtitution and Induction are declared to be Lay-man
null, yet this ſhall not relate to give Title of Lapſe to the Ordinary. preſented
Dyer 3 El. 294. Roll's Abr. 2. p. 220.
If the Clerk refuſed be the Preſentee of a Biſhop, or other Eccle-
ſiaſtical Patron, the Ordinary is not bound to give Notice of the Refu- Clerk of Bi-
fal. 18 H. 7. Keilwey 49. b. 14 H. 7. 21. A. Mich. 15 El. 3 Leonard ſhop being
refuſed,
47. Or if he ſhould do it, ſuch Patron can never revoke, nor vary his
Preſentation by preſenting one afterwards that is better qualified, with no Notice.
out the Ordinary's Confent; the Law fuppofing him that is a Spiritual
Perſon to be capable of chuſing an able Clerk. 31 E. 1. Qgare Impe-
dit 185. Roll's 2. p. 354. Mich. 1 H. 8. Keil. 154. Mich. 3. Car. Stoke
v. Stiles. Latch. 191, 253. And fo Lapſe may come to him unavoi- Lapſe.
dably, if the Clerk firſt preſented be juſtly refuſed. But if the Clerk pre- lliter
, if pré-
fented be the Preſentee of a Lay-Patron, and be refuſed by the Ordinary, ſented by a
Lay-Patron
the Ordinanry in moſt caſes is bound to give due Notice to the Patron of
fuch Refufal: For if in ſuch Cafe no Notice is given, no Lapſe can run,
tho other Clerk be prefented. 38 E. 3. 2. Nor if Notice be given, un-
leſs upon Trial the Clerk was juſtly refuſed. But if a Clerk preſented
be for good Cauſe refuſed, and Notice thereof be in due Time and
Manner given to the Patron, and no other Clerk be preſented in 'Time;
Lapſe doth run to the Ordinary. Mich. 15 Eliz. C. B. 3 Leonard
46.
If the Clerk, whether of an Eccleſiaſtical or Lay-Patron, be not re- No Lapſe, if
fuſed, but only the Biſhop doth delay the Examination to him, where- be a Distur-
by fix Months paſs, tho' no Writ be brought by Way of Prevention, ber.
yet Lapſe ſhall not incur; becauſe the Church remains void by the Bi-
ſhop's own Fault, and he is thereby a Diſturber: And generally, if the
Biſhop be a Diſturber, the Church doth not go in Lapſe, altho' it re-
mains void by the Space of ſix Months. Trin. 3 Jac. B. R. Palmer
and Smith's Cafe, per Cur Roll's Abr. 2. p. 366. But in what Caſes
the Biſhop may juſtly refuſe a Clerk, and in what he muſt give Notice;
and how, is hereafter declared.
If the Church doth become litigious, which is, when two ſeveral Pa- Lapſe by the
trons preſent their ſeveral Clerks to a void Church within the ſix Church be-
Months. Roll's 2 p. 384. Pafch. 26 EI. C. B. Gerrard's Cafe. 2 Leo- ing litigi-
nard 168. The Biſhop therefore may ſuſpend admitting the one Clerk
and the other ; by Hobart. Mich. 15 Jac. Brickhead's Cafe v. Biſhop
of York. Hobart 201. and ſuffer Lapſe to incur without any Enqui-
ry. 34 H. 6. 41., 35 H. 6. 18. For tho' to award the Writ of Jure
Patronanus be the Remedy in this Cafe to ſatisfy the Biſhop, who
hath the beſt Right, and to ſecure him, if he admit the Clerk, accord-
ing to the Verdičt found in the Jure Patronatus, from being a Diſtur- Jure Patron
ber, yet the Biſhop is not bound to award the ſame ex Oficio, but only
at the Prayer of the Party, viz. either Patron or Clerk. 8 E. 4. 24.
5 H. 7. 20. b. per Keble. 22 H. 6. 30. per Markh. 34 H. 6. 38. Broke,
Title Coſts. 2 Paſch. 26 El. Gerrard's Cafe. 2 Leonard 168. For if
he were compelled to award his Writ ex Officio, 'tis faid, that Lapſe
in ſuch Cafe could never come to him. 35 H. 6. 19. And yet by
ſome it is ſaid, 'That the Biſhop ought to make this Inquiſition at his
Peril.
34 H. 6. II. by Priſot. But the former Opinion takes
Place.
ouis.
natus.
If
112
The Clergy-Man's Law : Or, Chap. XII.
.
rcd.
Refufal to
admir with-
oiit Caulė.
the Clerk.
.
7
Certificate of
of Laples If when the Church is litigious, the Ordinary is required to award à
Esc.
Frire Patronatus, and doth not award it accordingly, he is a Diſtur-
Jure Purmo ber, and the Right of preſenting doth Hot Lapſe from the true Patron,
vatus requi- if his Clerk be not admitted within the ſix Months. 34 H. 6. 40. Br.
Quare Impedit 12.
Or if a Clerk be preſented to the Ordinary, and he doth refuſe to
admit him without Cauſe, and after ſuch Refuſal the Church doth be-
come litigious, the Ordinary (foraſmuch as the Church had not re-
mained void; but by bis own Ax) ſhall not have the Benefit of Lapſe,
altho' the Church bo hot filled within the ſix Months. 22 E. 3 Quare
İmpedit 194
Requeſt by After the Commiſſioner's upon a Jure Patronatus awarded, have
certificd the Biſhop of the Right, as it is found before them, the Bi-
ſhop ſhall not take Advantage of the Lapſe ; that is, if the Clerk of
the Patron, for whom it is certified, doth afterwards make a new Re-
queſt to the Ordinary to be admitted, which may be done upon
the
firſt Preſentment, without any new Preſentation or Requeſt of the Pa-
tron; but without ſuch After-Requeſt, the Ordinary may have the
void Turn, as by Lapſe, ſuch Enquiry and Certificate notwithſtanding.
34 H.6. 12.
And ſo he may, if the fix Months end before Certificate be made
Righs. in whom the Right is upon ſuch Enquiry, altho' the Enquiry was de
pending upon a Juré Patronatus awarded before they ended. Mich.
15 fac. Brickhead v. Archbiſhop of York. Hobart 201. That is (I
ſuppoſe) if the Biſhop after a Fute Patronatus required, did not undu-
ly delay to award and execute the fame: But if the Biſhop doth enquire
by a 7ure Patronatus, and thereby a Stranger is found to be the true
Patron, if the Stranger preſent within the lix Months, the Biſhop is
bound to receive his Clerk ; but if not, and the Diſturber doth preſent,
the Bifhop is bound to receive the Diſturber's Clerk. Br. Quare Impe-
dit 12. (Onlære.)
Lapſe upon a Alſo if when a Church is litigious, no Jure Patronatus is awarded,
Quare Impen but only an Afife of Darrein Preſentment, or Quare Impedit, is
dit depends
brought by one Party, who doth recover againſt the other, if the Biſhop
was not nanted in the Writ, and the fis Months paſs Pendant tlre Tame,
Lapfe hall incut; for that there was to Default in the Biſhop. 1 E.
1. Rot. Paterítium Merib. 15; 8 E. 1. Rot. Pat. Memb. 25. 33 E. 3.
Qucre Impedit 194. Mich. 3 Fac. Lancaſter v. Loc. 2 Cro. 92. And
theo thc Patròn in Yuch Cafe doth recover within the lix Months, yet if
the fix Months paſs before the Writ to the Bithop be taken forth, Lapfe
Thall itrċur. 17 E. 3. 75. F. N. B. 48. b. And if the Ordinary doth
collate before the Receipt of the Writ, his Clerk ſhall not be renroved.
11 H. 4. 80. And fo it is, if after the Recovery, within the ſix
Writ of Er- Months, the Defendant odoth bring a Writ of Error, and the ſix Months
do país pendant the fame. 17 E. 3:75. unleſs the plaintiff, before the
fix Months by ſuch Meants pafs, doth bring Quare Incumbravit againft
the BMiop; for thereby it is faid, that Lapfe Thall be prevented. 17 E.
3. 75. but Quære. However, it is generally ſaid, that if a Quare In-
pedit in any Cafe be brought, and the Bifhop be named therein, Lapſe
ſhall not pafs to the Ordinary pendente Brevi. Mich. 3 Jac. Brickhead
Aliter, Ordi- v. Archbithop of York. Hobeert 200. 1 Inft.f. 344. b. Accordingly, if
Mary being
a Man brings à Quare Impedit againſt Patron, Ordinary and Incum-
bent, and the Ordinary pleads, that he claims nothing but as Ordina-
ry, and after the Plaintiff recovers, and the Patron and Incumbent do
bring
ing.
Simile upon a
ror.
famed.
2
Chap. XII. The Complete Incumbent.
[I
tani
i Inft. 344.
:
bring a Writ of Error, depending which the Biſhop dies; and another Di Laupe,
is made Biſhop ; and afterwards the Incumbent voiding the Church in
Controverſy by taking a focond Benefice, the fåid Church remains void
fix Months; and after this, the first Judgment is affirmed; no Lapto
incurs to the Ordinary, as was adjudged, this Matter being returned by
the new Bifhop, upon the Writ to him directed Paſch. 3: Jac. B: R
James v. Bolton, Roll's Abr. 2. p. 366.
It is a Rule, That the Metropolitan (hall never preſent, or collate Lapſe to the
Metropoli-
by Lapſe after fix Months, but when the immediate Ordinary might
have collated by Lapſe within the before-going lix Months, and had
ſurceaſed his Time; and ſo it is, if the Time be devolved to thic King;
therefore if the Biſhop be named in the Writ, the Lapſe is ſtopped,
not only againſt him, but the Metropolitan and the King.
b. The Right of preſenting by Lapſe doth go, generally ſpeaking, firit How the
Right of
to the next immediate Ordinary, and therefore firſt to the Biſhop of
Lapſe doth
that Dioccfe in which the Church is ſituate. Stat. 25, E. 3: C. 7. Do- go.
Etor and Student, l. 2.6. 36. That is, if the Church'be not of the Pa-
tronage of fuch Ordinary, for then it goes immediately to the Metro-
polita at the End of fix Months; for the Bifhop in ſucki Cafeas Ordina-
ry, ſhall not have a ſecond lix Months to ſupply his own Neglect as
Patron, but it ſhall go to the Metropolitan, by the Counſel of Lateran, Council of
out of which, as is generally agreed, the Law of Lapſe with us was Lateran.
taken : fix Months is given to Eccleſiaſtical Patrons to prefent; and for
want of Preſentation within that Time by a Biſhop, the Lapſe by that
Council is given to the Chapter, and then to the Metropolitan: But
this Canon extended only to Lapſe of fuch Churches which were of the
Biſhop's Patronage, and not to thoſe which came to Biſhops by Lapſe ;
for the Metropolitan, and not the Chapter, was in that Cafe immedi-
ately to ſupply the Biſhop's Neglect, as is obſerved by the Comments
sapon chais Canon: But that Part of the Canon which let in the Chapter
to ſupply the Biſhop's Neglect, was never received with us ; the reſi
was admitted to be the Rule and Law in that Caſe; ſo that the Metro
politan fhall at the End of ſix Months fupply the Biſhop's Neglect in
preſenting to Benefices whereof he is Patron, ſeems to be all that was
received here out of that Canon concerning Biſhops; but the Law of
preſenting in all other Caſes within fix Months with us in England, is
referred to this Lateran Canon, Bračton lib. 4. C. 6 Coke Inſt.
tho' Mr. Selden thinks that by Authority alſo of a Dccretal mentioii
ed Extra de Jure Patronat. Ci 12. Cim te ; which mentions Lay-la-
trons, as well as by the ſaid Canon the Law here was firſt admitted.
Seld. of Tythes, c. 12. f. 388, 389.
If an Archbiſhop doth viſit an inferior Dioceſe, and doth inhibit the Lapſe in
Bifhop during the Viſitation (as the Uſe is,) and afterwards during the 'Time of an
Viſitation and Inhibition, and before any Releaſe made by the Archbi-
Archbishop's
Vifitarion,
Shop, fome Church within the ſaid Dioceſe doth Lapfe, altho' that the
Juriſdiction of the Ordinary be ſuſpended during the Viſitation, ſo that
he cannot in any Caſe collate his Clerks himſelf, yet he ſhall have the
Benefit of the Lapſe, and not the Archbiſhop, to whom, in this Cafe,
the Biſhop muſt, as a common Perſon, preſent his Clerk, and the Arch-
biſhop, as his Ordinary; ought to inſtitute upon fuch Preſentment as
was agreed by thie Civilians. Trin. 13 Gar: B. Ri Dodſon v: Lynn;
Roll's 2. p. 367
In caſe the Ordinary dieth, or be deprived of tranflated before he From the
takes the Benefit of a Lapſe incurred, it is ſaid, 'That the King fhall Ordinary to
the Metro-
De
hajë politana
C.
politan to the King when the Metropolitan is the very Patron, and
I14 The Clergy-Man's Law: Or, Chap. XII.
Me Lapſe, have the 'Turn. F. N. B. 34.g. Bračton l. 5.f. 404, 510. See Mich.
10 Fac. in Colt and Glover's Cafe v. Biſhop of Coventry. Hobart 154.
But ſome doubt, whether the King or Metropolitan ſhall have it.
Paſch. 7 E. 6 Dyer 87. b. And I do rather think, that the Right doth
go with the Spiritualities to the Metropolitan, or other Warden of the
Spiritualitics; becauſe it is but a mcer Truſt in the Law, and hath no
Relation to the Temporalities which go to the King : And of this Opi-
nion was Noy Attorney General. Noy 69. So Roll's 2. p. 367, and
345. From the immediate Ordinary the Title of Lapſe, after half a
Year, (that is, at the End of the whole Year, accounting from the
Time that the Patron is bound at his Peril to take Notice of the Avoi-
dance) goes to the Ordinary's immediate Superior; and therefore if it
went firſt to the Biſhop of the Dioceſe, it goes from him to the Metro-
politan of the Province. Mich. 28 and 29 Eliz. Beverly v. the Biſhop
of Canterbury and Cornwall. 1 Anderſon 148. And if it Lapſe firſt
Metroplitan
to the King
to the Metropolitan, as he is the Biſhop of a Dioceſe, (as the Archbi-
ſhop of the Province of Canterbury is Biſhop of the Dioceſe of Canter-
bury; and the Archbiſhop of the Province of York, is Biſhop of the
Dioceſe of York) then in the next Place it doth Lapſe immediately to
the King; and ſo a Benefice doth Lapſe immediately from the Metro-
From the
And then
the King
may take
his own
Time to
collatc.
ry.
doth neglect for his fix Months to collate.
If the Metropolitan doth not within half a Year fill the Church, the
Right of Preſenting to which comes to him by Lapſe, or other Church,
to which he may collate, ſuch Right paſſeth from him to the King as
Supreme Patron. Mich. 18 and 19 El. in Greendon's Cafe r. Biſhop
of Lincoln. Plowdex 498. b. And being once come to the King, the
King may take his own Time to collate: And Fitzherbert faith, Thát
the King in that Cafe doth preſent by Lapſe as Ordinary: But the Title
of Lapſe doth never go to the Superior Ordinary, but where it comes firſt
to the Inferior, (ſaving in the Caſe of the King's free Chapels, to which
he preſents by Lapfe in Default of the Dean, in reſpect of his Supreme
Eccleſiaſtical Juriſdiction. 27 E. 3. 8. b. Co. 5. de Jure Ecclefiaftico.
Lapſe ought And therefore if Courſe be taken to ſtop Lapſe fron going to the Bi-
to the infe- ſhop in ſuch Caſes in which it would otherwiſe go, it ſhall never go
rior Ordina- to the Metropolitan or King. 11 H. 4. &0. F. N. B. 48. Rofwel's Cafe.
6 Co. 52. Jenk. 281. Mich. 3. Jac. Lancaſter v. Low.
2 Cro. 93.
And therefore if Notice (where requiſite) is not given to the Patron, ſo
that for want thereof Lapſe doth not come to the Biſhop, the Church
remaining void 18 Months, it ſhall not go to the King, becauſe it ne-
ver came to the immediate Ordinary, tho' it was only thro' his Fault or
Neglect that it did not. 18 El. Dyer 341. Jenkin's Cent. 7. Cafe 7.
And for the fame Reaſon it is, that tho' in other Caſes the Church is
Lapſe pre-
not full againſt the King but by Induction, yet if the Patron doth
pre-
vented by
fent, and his Clerk is admitted and inſtituted, and doth forbear to be
inducted eighteen Months, the King ſhall not preſent upon him for
Lapſe, the Inſtitution ſtopping the Lapſe from going to the inferior Or-
dinary. Hob. 154, Colt and Glover's Cafe, and by Roll's Ab. 2. p. 367. and
by. Popham in Robins and Prince's Caſe. Hill. 43 El. Gouldsborough
164.
Where the 'Title of Lapſe is come to the King, if the King doth
preſent, and his Preſentee is Inſtituted, yet the King may revoke his
Preſentation, and ſo null the Inſtitution at any Time before his Clerk is
inducted; or if his Clerk be inſtituted upon ſuch Title, and die be-
:
Inftitution
King may
null an Insti-
tution.
I
forc
Chap. XII.
IIS
The Complete Incumbent.
8pc.
deceffors.
fore his Induction, the King may preſent another, his Turn not he- DF Laple,
ing ſerved by the Inſtitution only of his Clerk. Trin. 32 El. Wright
v. the Biſhop of Norwich. i Leonard 156.
The King hath not only the Right of preſenting to Churches which Lapſe to the
Lapſe to him during his own Reign, but alſo to ſuch which have lap. King's Pre-
ſed to any of his Predeceſſors, and no Advantage taken by them there-
of, contrary to the appearing Senſe of the Statute. 25 E. 3. c. 1.
For by the true Meaning of that Statute, King Edward III. and his
Heirs were only excluded from Titles of Preſentation in others Right,
fallen before the Time of that King, whereof any Church was then
full, Hill. 9 Car. King v. George Archbiſhop of Canterbury and Prift
.
i Cro. 355. and fame Cafe. Fones 334. 11 H. 4. 8. Vide 11 H. 4. 4.
70. contra.
ΙΙ Η.
ſentation in
another,
After a Church is lapſed to the Biſhop or Archbiſhop, it concerns Benefit of
them to take Advantage thereof with all ſpeed, leſt the Benefit be loſt; Lapſe loft to
the Biſhop.
for after a Church is lapſed to the immediate Ordinary, if the Patron
doth preſent before he hath filled the Church, the Ordinary ought to
receive his Clerk : For Lapfe to the Ordinary is only an Opportunity
of executing a Truſt, viz. of ſeeing the Cure ſupplied, in caſe of the
Patron's Neglect, which being performed by the Patron himfelf, the
Ordinary can take no Advantage by it.
4.
80. 18 E. 3. 21. d.
13 E. 4. 3. 43 E. 3. 11. 4. Trin. 18 H. 7. Keilway 50. And by Hobart
in Colt and Glover's Cafe, p. 154. 28 and 29 Eliz. Beverly v. Biſhop
of Canterbury, and Cornwall
. í Anderſon 148. Doctor and Student, 1.
2. C. 36. If one hath the Nomination, and another the Preſentation, Nomination
and the ſix Months being incurred, he that hath the Preſentation only in one, Pre-
preſenteth to the Biſhop, before the Biſhop hath taken Benefit of the
Lapſe, without any Nomination made to him, in ſuch caſe the Biſhop
is bound to admit the Clerk, as the Clerk of the very Patron : By
Doderidge in his Complete Parſon. Le&t. 12. f. 67.
Or tho' the Patron did not preſent within his fix Months, but the And the laſt
Ordinary did collate before the Expiration thereof, the Patron is not only pre-
thereby barred from preſenting, but may preſent after the fix Months
be expired, and his Clerk ought to be received. Co. 6. Green's Caſe 22.
and Boſwell's Caſe 50. But if the Biſhop, in ſuch Caſe, after the ſix
Months, and before any Preſentation exhibited, hath made a new Col-
lation, the Patron is barred. Roll's 2. p. 368. Co. Litt. 344.
So tho' Lapſe be incurred to the inferior Ordinary, and the Archbi- Where the
ſhop doth collate within the inferior Ordinary's lix Months, the Pa- Collation of
tron's Clerk, if he be preſented, ought to he received ; becauſe the politan is
Collation of the Metropolitan is tortious, and doth not put the Patron tortious.
to his Qyare Impedit, but is null, and as no Collation to the Patron :
By Rolle in his Abridgment 2 p. 368. But this is doubted of, and
objected, That the Wrong is here done to the Ordinary only, and not
to the
very Patron.
11 H. 4. 80. The like Law, if Lapſe be accrued
to the Metropolitan; for then, if the Patron preſent to the inferior
Ordinary, whilſt the Church remains void, he is bound to receive his
Clerk, and the Metropolitan is barred. Booton v. Biſhop of Roche Metropoli-
ſter. Hutton 24. Doctor and Student, l. 2. c. 36. But if either the tan barred.
Ordinary of the Dioceſe, or Metropolitan, hath collated his Clerk,
whilft the Turn was reſpectively theirs, altho' the Clerk be not induct-
ed, the Patron's Clerk, if after that preſented, is not to be admitted.
Trin. 10 El. Dyer 277. Or if the inferior Ordinary, after the Time Patron bar-
is gone by Lapfe to the Metropolitan, hath collated his Clerk to the red.
D d 2
Bene-
o
116
The Clergy-Man's Law: Or, Chap. XII.
c.
Collation.
.
Di Laple, Benefice that is in Lapſe, altho' this Collation be torticus to the
Metropolitan, yet it feeins, that it takes away the Preſentation of the
Patron not Patron, fo that he ſhall not preſent, and is only an Uſurpation upon
barred by a the Metropolitan : By Finch, Judge at Somerſet Aſſizes. Sir Francis
Popham v. Biſhop of Bath and Wells. Roll's 2. p. 350, 368. And
thereby the Metropolitan is put out of Poffeſion, and driven to his
Quare Impedit. Co. 6. Green's Cafe, b. 29. and Boſwell's Caſe 50.
Co. Litti 344. For as 'tis faid, here was a Right of Collation by
Lapfe, and tho it was goue from the immediate Ordinary to the Mc-
tropolitan; yet that fall not advantage the Patron, for the Wrong
done by the inferior Ordinary was to the Metropolitan and not to him
but if this be a Rcaſon, it ſeems to hold with the ſame force, where the
Metropolitan preſents during the inferior Ordinary's 6 Months, for there
was alſo a Right of Collation, and ſo the Wrong may be ſaid there
only done to the inferior Ordinary, as in the other Cafe to the Metro-
politan of which the Patron ought to have no Advantage. But this
will not be pretended, and it ſeems that ſince the Right of collating
by Lapſe, is by Law certainly ſettled by whom to be ſupplyed, a Col-
letion by Lapſe by the Metropolitan or Biſhop out of the Time the
Law gives them to collate in, can be no Collation by. Lapſe, nor o-
ther than a wrongful Collation which doth not bar the Patron from
prefenting, and to ſay there was a Right of Collation by Lapſe can
be no Reaſon to Prejudice the Patron; for in the Caſe of the Metro-
litan and Biſhop, till Advantage be taken of it, the Patron is not bar-
red from preſenting, but his Right continues, and the Metropolitan or
Biſhop cannot be ſaid to take Advantage of Lapfe, when they have no
Right in them fo to do, and that the Patron in ſuch Cafe is not barred
of his Prefentation, ſeems to be agreeable to 6 Cü. 29 b. and
50. q.
Q. If the It hath been a Queſtion, Whether the Biſhop ought to admit the
Ordinary Patron's Clerk, after the Title of Lapſe is paſſed from the Metropoli-
the Patron's tan to the King? Trin. 10 Eliz. Dyer 277. and by Hobart, the Pa-
Clerk after tron's Preſentation takes Place, after the Church is lapſed to the King,
a Lapſe pal- if it be exhibited to the Ordinary before the King's : In Colt and Glo-
ver's Caſe v. Biſhop of Copentrý. Hobart 157. Becauſe the Patron's
politan to
the King
Right to preſent continueth, until the Title by Lapſe be executed
and the King's Title is not veſted in him in this Cafe abſolutely, as
other Titles are, but conditionally, viz. If he doth prefent before the
Patron : Becauſe the King hath it only as Supreme Ordinary. Hutton
24. But by others, the Turn by Lapſe is ſo veſted in the King, that if
the Patron's, or other Perſon's Clerk be admitted to a Church, after
?tis come to the King by Lapſe, the King by Quare Impedit may re-
cover the Preſentinent, and remove ſuch Clerk. Mich. 28 and 29 El.
Beverly c. Biſhop of Canterbury, and others. 1 Anderſon 148. Trin.
27 Eliz. Baskervill's Cafe. Co. 7. p. 28. 27 E. 3. 85. Mich. 29 and
30 Eliz. C. B. Biſhop of Lincoln's Cafe. ' Brownlow and Gouldsbo-
fough 1, 63. Hil. 6 7ac. Cumber v. Biſhop of Chicheſter, cited in the
Caſe of the King c. the Archbiſhop of Canterbury and Prift. Trin.
4 Car. C. B. Hetley 125. And this latter Opinion is taken to be the
Law. So if the King hath Title, by Lapſe, to preſent to a Prebend of
his free Chapel, for that the Dean thercof hath not collated to it with-
in lix Months, tho' the Dean doth collate before the King preſents,
yet the King ihall remove his Clerk. 27 E. 3. 8. b.
Thall admit
fed from
the Metro-
But
Chap. XII. The Complete Incumbent.
117
Mich. 30
But tho', as hath been ſaid, the King may remove the Patron's, or De Lapſe,
a Stranger's Clerk, that comes in upon his Lapfe, yet if ſuch Clerk
doth die Incumbent of the Church, before the King doth preſent, the Advantage
King hath loſt the Advantage of the Lapfe, and ſhall not preſent af- of the King
terward, or remove the Patron's ſecond Preſentee. Trin. 27 Eliz. Clerk dying
Baskervill's Cafe. 7 Co. 28. Pafch. 26 El. Beverly v. Archbiſhop of Incumbent.
Canterburg. Owen 2. ſame Cafe. 1 Anderſ. 148. and 3 Cro. 44. .
Mich. 2. Jac. King v. Biſhop of Winton. 2 Cro.
53:
and
31
El. Beverly v. Cornwall
. Moor 269. Hil
. 6 Jac. Cumber v. Biſhop of
Chicheſter and Green. 2 Cro. 216. Mich. 29 and 30 Eliz. Biſhop of
Lincoln. Owen, the Caſe of the King v. the Archbiſhop of Canterbu-
gry
and Prift. Trin. 4 Car. C. B. Hetley 125.
Becauſe the King is The Rea-
to have but one Turn, and that the next
Tnrn. i Bulft. 28. and if the ſon.
Law ſhould be otherwiſe, the King by ſuffering divers Uſurpations up-
on his Lapſe, might even diſinherit the very Patron ; and the Rule,
Nullum tempus occurrit Regi, is not to take place where the King is
limited to a Time certain.
The like Law upon the ſame Reaſon is ſaid to be, if the Church, Simile upon
before the King doth preſent, be voided by any other Means, as by Re-
by Reſigna-
ſignation, unleſs the Reſignation be by Fraud on purpoſe to bar the tion.
King. Trin. 6 Jac. Cumber v. Biſhop of Chicheſter. Brownlow and
Gouldsborough i, 161. the ſame Cafe. 2 Cro. 216. Paſch. 30 Eliz.
Gouldsborough, p. 83 and 86. Yet on the contrary it is ſaid, 'That if Econtra.
the Clerk of the Patron, or a Stranger, that is preſented to a Church
in Lapſe to the King, doth after his Induction reſign, it is no Prejudice
to the King's Turn. Brownlow and Gouldsborough 1. p.64. the Cafe
of the King v. the Archbiſhop of Canterbury and Prift. Trin. 4. Car.
C. B. Hetley 125. And fome diſtinguiſh in this Cåſe betwixt an A. Diſtinction.
voidance by the Act of God, as Death, (in which Caſe it is paſt Que-
ſtion, that the King's Turn is gone) and the Act and Fault of the In-
cumbent, as by Reſignation, Deprivation, or the like: And therefore
it hath been adjudged, That if he that is preſented upon the King's
Lapſe, doth refuſe to pay the Tenths due from him to the King, and
the Refuſal is certified by the Biſhop, whereby the Church is void,
the King may then preſent as to his 'Turn by Lapſe, or remove ano-
ther's Preſentee that comes in upon ſuch Avoidance. Mich. 30 and 3 I
El. Queen v. Biſhop of Lincoln and Leigh. 3 Cro. 119. and Leonard
4. Cafe 105. Moor 259. and fame Cafe by Owen 89. But Quære ; &
for it ſeems moſt reaſonable, that the King ſhould loſe his Turn by
Lapſe, if he preſent not during the Incumbency of the Clerk of him
that uſurped upon his Lapſe, whether it become void by his Death, or
other Means, unleſs there be Fraud in the Caſe; and ſo it was held to
be per Cur. Irin. 31 El. C. B. the Queen and Biſhop of Norwich. 4
Leon. Cafe 351.
However, if the Ordinary doth collate to a Benefice that is lapſed, Lapſe to the
as well from him as the Patron to the King, and his Collatee doth die
King and
Ordinary
ſeiſed of the Church, it ſeems, that the King may afterwards have his collates, Esc.
Turn, becauſe the Church was not thereby filled, either againſt the
Patron, or the King: Not againſt the King, becauſe the Collation of
the Ordinary doth gain no Poſſeſſion againſt him; and the King, may
preſent without being put to his Quare Impedit ; but whether (as it
ſeems to be) againſt the Patron, Quære, by Roll's 2. p. 368.
not preſent
If in the Caſe of Lapſe, or other the like Cafe, when the King again after
hath Right to preſent but to the preſent Avoidance, and the Church is
filled red.
ز
King may
his Title
once execu-
2
118
The Clergy-Man's Law: Or, Chap. XII.
groc.
Cod. 808
Kelw. 49.
DE Lapſe, filled againſt him by Inſtitution and Induction, ſo that the King is dri-
IL
ven to his Qyare Impedit, and after he hath recovered, he confirms
the Incumbent's Eſtate, yet he may preſent after ſuch Incumbent's
Death : For when the King hath recovered, he hath a Right to
prefent uncontrollably by the Record, and may at his Pleaſure
ſue forth Exccution, and the King's Confirmation, or Grant, that
the Incumbent ſhall not be moleſted during his Life, cannot be
pleaded by the Patron, in Bar of the King's Right to preſent by Ver-
tuc of his Judgment. 9 E. 3. 20. and 18 E. 3. 21. the Abbot of
Thorrey's Cafe there cited. Paſch. 19 Car. 2. Henry Edes v. Walter
Biſhop of Oxford. Vaughan 26. But if the King hath preſented for
Lapſe, and his Clerk is inſtituted, and inducted, and then being ſued,
doth loſe his Incumbency by ill pleading, the King ſhall not preſent
again, for that this Title was once executed. Mich. 32 El. Arundel
and the Biſhop of Glouceſter's Cafe. i Leonard 194.
But touching Lapſe in general, we may here add thoſe Rules and
Maxims of the Common and Canon Law collected in Biſhop Gibſon's
Codex, viz.
1. Lapſe is a Devolution of Patronage (or rather the Right of Preſen-
tation) from the Patron to the Biſhop, from the Biſhop to the Metropo-
litan, and from the Metropolitan to the King, i. e. to the Biſhop as Ordi-
nary, to the Metropolitan as Superior, and to the King as Patron Par-
amount. Vide 2 Inſt. 361. Bra&t. lib. 4. Reg. 42.b.
2. The Term or Space in which Title by Lapſe accrues ſucceſſively
to the fore-imentioned Superiors is fix Months. Vide 2 Inſt. 361. 6 Rep.
62. a. 2 Cro. 141. Yelv. 100, &ç. 2 Roll. Abr. 363, 364. 4 Mod. 140.
3. Lapſe Mall incur, or not incur according as it doth, or doth not
happen through Default of the Biſhop; and according as he is named,
or not named in the Quare Impedit. See 2 Roll. Abr. 365.3 Cro. 93.
Hob. 200.
4. Altho' the Biſhop is both Patron and Ordinary, he ſhall not hare
a double Time to preſent in, but only fix Months, before Title by Lapſe
accrues to the Metropolitan.
5. No Title by Lapſe can accrue to the Metropolitan, or to the King,
unleſs it hath firſt accrued to the immediate Ordinary. Se 2 Cro. 93.
2 Roll. Abr. 365, 366, 367.
6. If Title' by Laple is accrued to the Biſhop, and he dyes, or is
tranſlated or deprived before he takes the Benefit of it, the Devolution
is to the Metropolitan, (i. e. as he is Guardian of the Spiritualities,
and as this is not an Intereſt, but a meer Spiritual Truſt.) See Bra£t.
404. Se&t. 10. 2 Roll. Abr. 367. And Note. Noy 69,
7. Lapſe accruing to the Biſhop in a Metropolitical Viſitation, he
Mall not looſe the Benefit of it. Vide 2 Roll. Abr.
8. After Lapſe to the Ordinary, or to the Metropolitan, if the Patron
preſent to the Ordinary before the Church is filled by Inſtitution, he
is bound to receive his Clerk. Vide Lyndw. De Jur. Patr. C. 2. Inju-
ria. Nat. Br. f. 83. Hob. 157. 2 Roll. Abr. 368. Moor. 900. Hutt.
24.
9. There is no Lapſe from the King. For altho' the Words of the
Stat. 17 Ed. 2. c. 8. do plainly imply a Lapfe, yet they are not allow-
ed to be expreſs enough to deſtroy or limit that known Maxim, Nul-
liim Tempus occurrit Regi. 'Tis true the Reformatio Legum f. 29. b.
ſeems intended to provide againſt this. But as the Law is, there is no
Remedy againſt a Neglect in the Crown to fill ſuch vacant Churches
F
2
in
Chap. XIII. The Complete Incumbent.
119
in the Crown, but only the Ordinary's Sequeſtring the Profits of the Wurpation,
Church, and Appointing a Clerk to ſerve the Cure.
Eros.
C HA P. XIII.
Of Uſurpation, and the ſeveral Conſequences
thereof; and of the Writ of Right of Ad-
vowſon.
A
there is no
Preſentation
S the Patron by his Neglect doth loſe the Right of Preſenting Fee of an Ad-
vowſon may
upon the Account of Lapfe, ſo upon the Account of Uſurpation;
be gained by
for thereby the Fee of an Advowſon may be gained. 9 H. 6. 30. b.
31. Uſurpation.
that is, not only the Avoidance upon which the Uſurpation is made,
but the whole Éftate of the Advowſon againſt all the World, by. Ho-
bart. Paſch. 17 Jac. in Sir William Elvis's Cafe v. Archbiſhop of York.
Hobart 322. Hill.
14 Car. B. R. Harper. V: Bailiffs and Burgeſſes of
Derby. Jones 427
That an Uſurpation may be ſaid to be truly ſuch; and to have the Nopóffeſion
Effect of gaining the Poſſeſſion of an Advowfon, ſeveral Things muſt gained where
concur ; as firſt, it muſt (generally ſpeaking) be initiated by a Preſent-
ment made to the Church : Therefore, if a Perſon affirming himfelf
to be Patron of a Church that is void, doth pray the Ordinary to ad-
mit him thereto, (for that he cannot preſent himſelf) and the Ordinary
doth inſtitute him accordingly, this gains no Poſſeſſion, for that there is
no Preſentation, and a Man cannot plead Plenarty of his own Preſent
ment. 14 H. 8. 3. a. So if a Biſhop doth collate without Title to a Neither by
Church preſentable, and his Clerk is inducted, the rightful Patron is Biſhop's Col-
not thereby put out of Poſſeſſion, as by Uſurpation ; for it appertain-
ing to the Biſhop's Office to provide for the void Church, until ſuch
Time as the Patron doth make Preſentment of his Clerk thereto, his
Collation ſhall be intended only to be as a Proviſion for the Celebra-
tion of Divine Service during the Vacation: For if the Patron's Clerk,
notwithſtanding ſuch Collation, be not received when preſented; and
the Patron brings his Quare Impedit, Plenarty by Six Months, in ſuch
Caſe, cannot be pleaded againſt the Patron. Mich. 3 Jac. in Boſwell's
Cafe, 6 Co. 5o. 14 H. 8. 3. Trin. 44 Eliz. Green's Cafe, 6. Co. 30.
i Inft
. f. 344. b. Smallwood v. the Biſhop of Cotentry, &c. and Marſh,
Savile, Cafe 188. And as not one, ſo not two or three more Colla- Nor by two
tions do gain any Poſſeſſion of an Advowſon to a Biſhop, though he or three
ſhould not collate as Ordinary, but as Patron. Pafch. 33 Eliz. Queen tions.
and Biſhop of York's Cafe, 1 Leon. 226. and ſame Cafe, 3 Cro. 240.
And if the Inheritance of an Advowfon be in a Biſhop, in Right of
his Biſhoprick, but the fame is leafed out for Years, or Life, a Colla-
tion by the Biſhop ſhall no more prejudice the Leſſee, than any other Biſhop's Lef-
Stranger who hath the Inheritance in himſelf. Pafch. 3: Eliz.
Sale v. Biſhop of Coventry and Marſh. i Anderlon 141. and Savile.
Caſe 188.
lation with
out Title.
more Colla-
.
fee.
3
Tho'
:
129
The Clergy-Man's Law: Or, Chap. XIII.
Collation
tron to his
"Vrit.
Note: To
muſt be in
peaceable
and Wife,
:
Churpation; Tho' gcncrally, as hath been ſaid, an Ufurpation muſt be initiated
Forc.
by a Preſentment, and not by a Collationi, yet if a Biſhop doth eollate
upon him that hath Right to collate to a Church, his Collation doth
puts the Pa- make an Uſurpation and Plenarty by Six Months, and doth put him, in
whom the Right of collating was, to his Writ of Right to recover
his Advowſon. 17 E. 3. 64. b. Dean of Lincoli's Cafc. Mich. 3 Jac.
compleat an
in Boſwell's Cafe, 6 Co. só. Trin. 44 Eliz. Green's Cafe, 6 Co. 29.
Uſurpation,
the Ufurper i Inft. 344. b.
And as an Uſurpation muſt be initiated by a Preſentation, fo fuch
Poffeffion for Preſentation ought to be valid; and not void in Law: Therefore if á
Six Months. Maſter of a College be preſented by Maſter and Fellows, or a Dean
See 1 Inft
. by the Dean and Chapter, the Prefentation being void, though the
The Preken Maſter, or Dean, be admitted, makes no Uſurpation to the diſpoſſef-
țation muſt ſing of a rightful Patron. 14 H. 8. 3. So if a Church being void, a
So nor where Stranger doth preſent his Clerk upon a Simoniacal Contract, and the
the Preſenta- Clerk is admitted, inftituted, and inducted thereuport
, and Six Months
tions arevoid. paſs
, yet this is not any Ufurpation upon the rightful Patron, altho?
that the Clerk was ignorant of the Contract, for that ſuch Preſenta:
tion and Induction are void in Law, and the Clerk is as never preſentedi
Stat. 31 Eliz. c. 6. And in this Cafe the rightful Patron, and not the
King, ſhall preſent. Co. Litt. 120. a.
By Husband
And if a Man and his Wife do join in a Preſentment to a Church,
to which they have no Right, this Preſentation doth gain nothing to
the Wife ; for the Wife is at the Will of her Husband, and ſo it is but
as the Act of the Husband; but otherwife it is, when the Wife hath
Right. Pafch. 15 Car. C. B. Neſton v. Hampton, March's Cafe 146.
And for this Reaſon, tho' the King may preſent by Uſurpation, yet
he ſhall be no Uſurper by preſenting, if in his Letters of Preſentation
lie doth preſent by ſome Title which he hath not, ſuch Preſentatioti
King gains being void; but if he prefent generally, mentioning no Title at all in
a Tirle by
his Preſentation, and his Clerk be received, and dies, he hath gained
Uſurpation.
a Title by Uſurpation. Hill. 17 and 18 Car. 2. Sir John Tufton v. Sir
Richard Temple. Vaughan p: 14.
That an Uſurpation may have the Effect of gaining the Poffeſion
of the Advowſon to a Stranger, 'tis not neceſſary that the Stranger
Right of an- doth prefent in his proper Perſon : As 'tis faid, that if the King döth
preſent in the Right of his Ward, who hath not any Right to an Ad-
vowfon, this doth veſt the Inheritance in the Ward by Uſurpation, be-
cauſe the King exprefly preſented in his Right. 42 E. 3. 4.b. 43 E. 3.
14. b. 22 E. 4.9.b. Quære: For this feems contrary to the Books be-
fore cited, riz. that where the King mentions a Title which he hath
10t, his Prefentation is void, and ſhall not be any Uſurpation. But
however, ſo it is in the Caſe of a common Guardian. Roll's 2 p. 370.
By Proctor. Contra 17 E. 3. 60. 7 H. 4. 26. b. And alſo in the Caſe of a Proctor,
with reſpect to the Perfon for whom he is Proctor; yea, and tho ho
was not his Proctor, if he did preſent as ſuch, or if he prefented as
Attorney.
Proctor, or as Attorney to another, to a Church whereof himſelf
was feiſed, it ſhall be an Uſurpation upon himfelf, for ſuch Perfon
in whoſe Name and Right he prefented. 17 E, 3. 60, 61. I Inft.
52. a.
By a Stranger If a Stranger doth preſent to a Donative being oid, and his Clerk
to a Donative. thereupon is admitted, inſtituted, and inducted, yet this makes no U-
ſurpation upon the very Patron, becauſe the Preſentation, and ſo all
that followeth thereupon; is meerly void ; a Donative not being pre-
ſentable,
Where the
Preſentation
is in the
other.
I
Chap. XIII. The Complete Incumbent.
I21
Erc.
void.
.
tice.
fentable, unleſs it be firſt made ſo by the very Patron's Preſentation Uſurpation,
made thereunto to the Ordinary. Co. Lit. 344. a.
For the initiating of an Uſurpation, 'tis not enough that a Preſent- Muſt be to a
miént be made to a Church, and ſuch Preſentment as is not void, but Church not
it inuſt be made to a Church that is void; therefore, if a Preſentation
be made to a Church appropriate, (which is always full of him to
whom the Appropriation is made) or to any other Church full of an
Incumbent, and Inſtitution and Induction be had upon ſuch Preſent
ment, yet (all being void) no Uſurpation, or Diſpoſſeſſion is made
thereby. Mich. 18 and 19 Eliz. Grendon v. Biſhop of Lincoli.
Plowder 500.
But though the Church muſt be void when the Preſentation is made What Avoid-
for the aforeſaid Purpoſe, yet it is not neceſſary that it be ſo void to ance to the
the Patron, that he muſt either preſent or ſuffer a Lapſe; but only fo,
that if the Patron pleaſe, he may preſent : For if an Ordinary doth
deprive an Incumbent of a Church, for Crime, or other Cauſe, and
doth not (as he ought to do) give Notice to the Patron of the Avoid-
ance; yet if a Stranger doth preſent his Clerk, who is inſtituted, and
inducted, and Six Months paſs, the Stranger thereby hath uſurped up- Ufurpation
on the Patron, and gained a Poſſeſſion of his Church : For though the by astranger.
Ordinary in the Caſe of a Deprivation, and in like Cafes, may not
have the Benefit of a Lapfe without Notice, yet in regard that the
Church is void and open to the Preſentment of the Patron, although
no Notice be given thereof, the true Patron againſt Strangers is bound Without Now
to take Notice of the Avoidance at his Peril. Trin. 44 Eliz. Green
and Baker's Cafe. Roll's 2. p. 369. Pafch. 17 Jać. in Sir Will. Elvis's
Caſe v. Archbiſhop of York. Hobart 318.
So if an Incumbent of a Church doth ſign his Benefice, and a Stran- Incumbent
reſigns, and
ger, preſents his Clerk thereto, who is inſtituted, and inducted, and
Stranger pro
continues Incumbent, without Interruption, by Six Months; tho' no ſents. "
Notice was given to the true Patron of the Reſignation, yet this Pre-
ſentment and Incumbency makes a compleat Uſurpation, ſo that the
Clerk cannot be removed; and the Reaſon is, becauſe the Induction is
notorious to the Country, and therefore the Patron ought to take No-
tice of it at his Peril, and to uſe his Remedy in Time, if he will not
loſe his Preſentment and Poſſeſſion. Pafch. 33 Eliz. Serven v. Biſhop
of Lincoln. Noy 65. and by Hobart in Sir William Elvis's Cafe v.
Biſhop of York, Tayler and Biſhop. Hobart 318. And yet 'tis ſaid,
That if a Clerk being inſtituted and inducted, doth reſign into the
Hands of the Ordinary by Covin betwixt him, the Ordinary and the Reſignation
Stranger, on Purpoſe that the Stranger may preſent A. B. to the In- by Covin.
tent to defeat the very Patron of his Preſentment, and the Stranger
doth preſent the ſaid A. B. accordingly, and Six Months paſs, this
ſhall not be any Uſurpation, for that the Ordinary did not give No-
tice of the Reſignation. Trin. 40 Eliz. Lacon v. Biſhop of Lincoln.
Roll's 2. P: 369. But I ſuppoſe this Cafe is to be underſtood as it is
delivered, viz. fpecially upon the Point of Fraud and Contrivance,
and not ſo as to contradict the former Cafes.
If one hath à Benefice under the Value of Eight Pounds per An- Where one
num, and doth (without Diſpenſation) take another Benefice incompa- Benefice in-
tible, in which Caſe the firſt is void only by Canon Law, and fo is on- compatible.
ly ſaid to be void as to the Patron, and for his Advantage, not Difad-
vantage; and a Stranger, before the true Patrón hath Notice of the
Avoidance from the Ordinary, or the Ordinary hath pronounced the
E e
Church
122
The Clergy-Man's Law : Or, Chap. XIII.
yor.
Church void
Sents.
249. b.
When there
million and
Inſtitution.
Allurpation, Church void, doth get his Clerk inſtituted and inducted thereinto, this
is no Plenarty againſt the true Patron: By Hutton. Hill. 9 Car. King
v. Prieſt. Jones 336. (but Quår.) For that 'tis there alſo ſaid, that a
Church is morc void by the Conftitution of Lateran, than by particu-
lar Deprivation or Relignation, for that it is a general Sentence of
Deprivation. 2 E. 3. 2. And therefore I think fuch Inſtitution and In-
duction doth make a Plenarty. But quære, Whether the Patron be
put out of Poffefſion beforc Induction for that? 1 H. 5. 1. is Contra,
as vouched in Hare and Buckley's Cafe. Plowden 529.
If a Church be void in the Time of War, and a Stranger doth
pre-
in Time of fent his Clerk thereto, who is admitted, inſtituted and inducted, and in
War, and
Poffeffion by Six Months, yet all is void: And though the Stranger doth
Stranger pre-
cnly preſent in Time of War, and his Clerk is admitted upon that
Preſentment in Time of Peace, yet the Law giveth Regard to the Ori-
ginal Act ; that is to ſay, to the Preſentment; and all that followeth
thereupon, although it were in 'Time of Peace, ſhall be avoided, as
being conſtrued to be in Time of War, and ſhall not put the rightful
Patron out of. Poffeffion. 6 E. 3: 41. And upon this Reaſon was Shel-
ley's Cafe adjudged in B. R. faith Coke. Trin..43 Eliz. Binghani's
Cafe. 2.Co. P: 93. and Co. 6. Green's Caſe. 30. 1 Inft. 249. b. And
note, That the Time of War doth not only give this Privilege to
them that be in War, but to all others within the Kingdom. 1 Inft.
To the Gaining of the Poſſeſſion of an Advowfon, it is not only ne-
muſt be Ad- ceſſary that a Preſentation be made, and that it be made when the
Church is void, and in 'Time of Peace, but Admiſſion and Inſtitution
muſt be had thereupon ; for before Inſtitution, and after Preſentation,
the true Patron may grant the Advowſon, the Uſurpation not being
completed till Inſtitution, (as is held by Hobart) and to the Gaining the
Advowſon not without Induction, and the Clerk continues in Six
duction, Esc. Months. Mich. 30 Jac. 6. Co. 49. b. Boſwell's Cafe. Hill. 14 Car.
B. R.Harper v. thë Bailiffs of Derby. Jones 427. Pafch. 15 Car. 20
B. R. Brown v. Spence. I Șidexfin 163. 1 Kebel 590. But if he doth
die within the Six Months, (though the Patron cannot preſent before
his Death, until he hath recovered) yet after his Death he may either
preſent, or bring his.Quare Impedit, becauſe the Plenarty did not bar
his Action by reaſon of the Statute of Weſtminſter 2. 6. 5. the Six Months
not being incurred, Lord Stanhop's Cafe. Hobart 241.
Plenarty by That an Uſurpation therefore may have the Effects of enabling the
the Spacc of Uſurper to plead Plenarty againſt the true Patron upon his Qyiare Impe-
dit brought, and to drive the Patron to his Writ of Right, 'tis not e-
nough that the Uſurper duly preſent, and his preſentee be admitted,
inſtituted and inducted, but alſo that the Church be full by the Space
of Six Months, before any Writ brought to recover the Preſentation.
Paſch. 17 Jac. in Sir William Elvis's Cafe v. Archbiſhop of York
and others. Hobart 322. Mich. 13. Fac. per Cur? Godbolt 263. For
if within {uch Time the Patron doth bring his Quare Impedit, or Writ
of Darrcin Preſentment, as the Caſe may be, Plenarty cannot be
pleaded againſt him to bar him, but that he may remove the Uſurper's
Clerk, and recover his Preſentment, and Pofleſſion of the Advowfon,
without being-driven to his Writ of Right. 1 Inft. 344. b. and that by
Right.
the Statute of Weſtminſter 2. c. 5. For before this Statute at the
Common Law, after Inſtitution had into a Church of a common Per-
fon, at the Preſentation of a Stranger that had no Right to preſent;
the
IVhen In-
Six Months.
Writ of
Chap. XIII. The Complete Incumbent.
123
c.
the Incumbent was not removeable, but only the Advowſon recover- Wurpation,
able by a Writ of Right of Advowſon, as appears by the ſaid Statute :
By which it is enacted,
ci s. Sect. 2.
6 Co. 61.
Dier. 29.
Mortmain.
That from henceforth one form of Pleading thall be obſerved a: Stat. Weft. 2.
i. e. 13 Ed. I.
mong Juftices in Writs of Darrein Pielentment and Quare Impe-
dit in this Relpex, if the Defendant alledgeth Plenarty of the Church See 2 Inft.
of his own Preſentation, the plea thall not fail by reaſon of the Ple: 360,
1 Inft. 344.b.
narty, ſo that the Writ be purchaſed within the Sir Months. Vide 5 Co. 1024
:
S-E7. 1. Poft. 226, 227, &c.
Cro. Fac. 166.
But if a Church is aliened in Mortmain, and the Perſon to whom Bro. Plenars
it is aliened doth preſent, or he is uſurped upon, yet the Lord may at ty 1, 3, 7,11,
any Time within the Year bring his Quare Impedit, and the Uſurpa- Fitz. Quare
tion and Plenarty by Six Months ſhall not bar him. 47 E. 3. 11. For Impedit.
in this caſe he cannot have a Writ of Right of Advowſon, for that Incumbent
.
he cannot alledge Seiſin in himſelf, nor in his Anceſtor. 21 E. 3. 27. Upon Alic-
But Quare, Whether a Collation by Lapſe made by the Biſhop, Thall nation in
not in this Caſe bind the Lord, for it ſeems not to be within the Rea-
ſon of an Uſurpation, for the Lord thereby is in no Danger to be dif-
inherited, but may make his Title by it at the next Avoidance ; and
the Statutes of Mortmain cannot be intended to take away the Biſhop's
Right of Lapfe.
Alſo by Recovery in a Quare Impedit, and Execution had, the Pof- Upon Reco-
efſion of an Advowfon may be gained, for thereby every other Perſon very in Qusa-
.
is put out of Poffeffion. 9 H. 6. 57. a. And though a Quare Impedit
be brought, and a Recovery thereupon had againſt an Incumbent alone,
without the Patron, if thereupon by Writ to the Biſhop the Incum-
bent is removed, and the Clerk of him that recovered inſtituted, the
Patron is thereby put out of Poſſeſſion. Roll's Abr. 2 p. 369. Dubitat
9 H. 6. 32.
But if Leſſee for Years, or a Guardian, bring a Quare Impedit, al- By Leſſee
for Years.
though that the Defendant hath a Writ to the Biſhop againſt the Ter-
mer or Guardian, and his Preſentee is accepted, yet the Tenant of the
Freehold is not put out of Poſſeſſion thereby. 50 E. 3. 14. b. And ſo
if the Preſentee of a Stranger being admitted, inſtituted and inducted By a Stran-
into the Church of a rightful Patron, and another Stranger doth bring ger.
a Quare Impedit againſt the firſt, and recovers, this Recovery is no
Prejudice to the true Patron who was a Stranger to it. Hill. 18 H. 7.
Keilwey p. 49. i Mod. Rep. 255.
That an Uſurpation may be ſuch as may gain the Fee of an Advow- What Privi-
fon, there muſt not be ſuch Privity betwixt the Uſurper, and the Per- ty neceſſary
fon upon whom the Uſurpation is made, as doth fruſtrate an Uſurpation fee of an
as to its Effects; and therefore, firſt, there muſt not be a Privity in Advowſon.
Blood, for when an Advowfon deſcendeth unto Parceners, though one
preſent twice, and uſurpeth upon her Coheir, yet ſhe that was negli-
gent ſhall not be clearly barred, but another Time ſhall have her
Turn to preſent when it falleth. Stat. Weft. 2. c. 5. viz. 13 E. 1. 2
Inft. 363. And accordingly 'tis ſaid, that one Coparcener by preſent- Caparceners
ing alone without the other, cannot uſurp upon the other to the dif-
poſſeſſing her. 17 E. 3. 37.b. 9 Eliz. Dyer 259. b. 20 Dubitat'. 15 E.
3. Alife Darrein Preſentment 11. Yea, and if a Quare Impedit be
brought by two Coparceners, and the one is fummoned and ſevered,
and the other doth recover and preſent, this is in the Right of them
Ee 2
both,
conto
124
The Clergy-Man's Law: Or, Chap. XIII
Forc.
tition made
.
parceners.
22 E.
If the Uſura
warpation, both. 38 E. 3. 35, 36. So if an Advowſon be aſſigned in Chancery to
two Daughters Coparceners, and the eldeſt doth after preſent to the
next Avoidance, (I ſuppoſe contrary to the Aſſignment) this ſhall be
in her Right as the elder, and not by Uſurpation ; for that the firſt
Preſentment of common Right doth belong to her, but this ſhall void
the Aſſignment in Chancery. 17 E. 3. 30, 38. adjudged.
Upon á Par-
And yet it is faid, That if two Coparceners make Partition in Chan-
in Chancery
cery, or Compofition by Fine, to preſent by Turns, the one may 4-
furp upon the Turn of the other. 30 E. 3. 15. yet ſuch Uſurpation doth
not put the Party out of Poſſeſſion upon whom it is made as to the
next Turn, but füch Party may preſent thereto; and this is not only by
the Aid of the Statute of Wešt. 2. C. 5. but at Common Law. 33 Ed.
3. Quare Impedit 196. 25 El. Dounam's Cafe. 4 Leonard 86. So
Three Co though ſuch Compoſition be made betwixt three Coparceners, and the
eldeſt doth uſurp upon the Turn of the ſecond and youngeſt, and af-
ter doth uſurp again in the Turn of the ſecond, yet the youngeſt may
preſent in her next Turn. 13 E. 3. Quare Impedit 58. For an Uſur-
pation in this Cafe is but for the Turn uſurped upon, and doth not
put the Perſon uſurped upon to her Writ of Right. F. N. B. 34 Jac.
4. 9. However, if of three Coparceners, the eldeſt after Parti-
tition doth ufurp the Turn of the ſecond only, this is not any Uſurpa-
tion upon the Turn of the youngeſt. Keilw. 1. 2 Inft. 365. Roll's Abr..
2. 372, 373. 2 H. 7. 4. 5. 22. E. 4. 9.
And if of three Coparceners the eldeſt doth preſent in her Turn
pation upon without Partition, and afterwards a Stranger doth uſurp in the 'Turn
three out of of the ſecond, yet this is not any Uſurpation as to the third or firſt
Coparcener, but only as to the ſecond, and the Law is the ſame, al-
though Partition had been made to preſent by Turn. Mich. 12 H. 7.
Keilwey I. 17. E. 3. 22. Yet by a late Report 'tis faid, That the
Court inclined to an Opinion, that where Parceners had made Parti-
tion to preſent by Turns, and an Uſurpation is in the 'Turn of one of
then, that it ſhould put all out of Poſſeſſion. Paſch. 35. Car. 2. A-
nonymnus. 2 Ventris 39. which ſeems to be upon this Reaſon, that Parti-
tion made of an Advowfon, doth not ſever the Right and Inheritance
of it, but is only a Severance as to the Poſſeſſion. 2 Co. 87. Carbet's
Cafe. Therefore the Inheritance remaining intire, an Uſurpation in
the Turn of one Coparcener gains the whole Inheritance by Wrong
till avoided, and conſequently muſt put all the Coparceners oụt of
Poffeffion.
Two Copar-
If two Coparceners be of an Advowfon, and they ſeverally grant
their Parts to two ſeveral Men, the Advantage that was between the
Parties doth hold Place between the Grantees, and ſo the firſt Preſent-
ment ſhall go to the Grantee of the eldeſt. 1 Inft. 166, 186. and ſo of
the others, and an Uſurpation of one ſhall not put the other out of
Poſſeſſion. 22 E. 4. 9. Quære: . But Peradventure it ſhall be otherwiſe,
if they were meer Tenants in common, and did not derive their E-
ſtates from Coparceners. And yet the Book is, 22 E. 9. a. that be.
Strangers,
tween Strangers in Blood, or where two make Compoſition to preſent
by Turns, if one ufurps upon the Turn of the other, this ſhall not put
him out of Poffeffion. Anderſon doubted; but he agreed, That Te-
nant by Courteſy ſhall have the ſame Advantage that his Wife ſhould
have had. Paſck, 25 Elize Harris and Hays v. Nichols. 3. Cro. 1.8.
1 Inft. 167. b. 186. b.
Poffeffion.
It ſeems it
may.
ceners.
Doc.
3
That
Chap. XIII. The Complete Incumbent. .
125
Orice
Grantee.
opic
That an Uſurpation may be ſuch as may gain the Fee of an Ad- Uturpation,
yowſon, as there muſt not be a Privity in Blood betwixt the Ufurper,
and the Perſon upon whom the Uſurpation is made, ſo neither muſt As no Privity
there be a Privity in Eſtate betwixt them: For if a Leſſor of an Ad- in Blood, so
no Privity in
vowſon doth uſurp upon his Lefſee for Years, this doth only bar the Eltate.
Leſſee of that Preſentment, and doth not out him of his next Turn,
Leffor and
and put
hini to his Writ of Right, and this by reaſon of the Privity Lellee.
betwixt them. And upon the fame Reaſon, if a Man hath three A-
voidances granted to him by one Deed, and the Grantor doth uſurp Grantor and
upon the firſt Avoidance, yet the Grantee at another Avoidance may
preſent, or have his Quare Impedit ; for that the Uſurpation made by
the Preſentation, &c. of the Grantor, did not put the Grantee out of
Poſſeſſion of all the Avoidances, adjudged Paſch. 12 Car. Legg v. Sir
Anthony Ager. Roll's Abr. 2. P: 371. Co. Litt. 240. and the Caſe of
Sir William Elvis v. the Archbiſhop of York. Tailer and Biſhop.
Paſch. 17. Jac. Hobart. 322. and Jones p. 4. being to the contrary
are denied for Law.
So if one 'Tenant in Common of an Apvowſon doth preſent alone, Tenant in
Common,
this doth not put the other out of Poſſeſſion ; for at the next Avoid-
ance they may join in a Preſentment. Paſch. 7. Fac. Kite v. Biſhop of
Briſtol. Roll's 2 p. 372. Mich. 24 and 25 Eliz. Harris v. Nichols
. i
Anderſon 63. Or if two joint Tenants feiſed of an Advowſon, and
the one doth preſent without the other, this is no Uſurpation upon his
Companion ; but he may alledge this Preſentment in a Quare Impedit,
as a Title for himſelf to the next Avoidance. 27 H. 8. 11. b. And
this is by reaſon of the Privity that is betwixt them. i Inft. 186. b.
249. a. contra. 27 H. 8. by the King's Attorney, and 11 H. 4. 54. Br.
Quare Impedit 52. 3. Or if there be two Jointenants, and the one
doth preſent the other, this doth not gain any Poſſeſſion, for that it is
not ſtrictly and properly a Preſentation, but rather a Prayer to be ad-
mitted. 14 H. 8. 2 b.
But where there is no ſuch Privity either in Blood or Eſtate, the Where no
Law is contrary, therefore in the Caſe of a Leaſe made of the Ad- ſuch Privity.
vowſon, &c. if any other Perſon beſides he that is ſeiſed of the imme-
diate Reverſion in Fee, doth uſurp upon the Lefſee, he thereby gains
the Poſſeſſion of the whole Advowſon. Rudd v. Biſhop of Lincoln.
Hutton 66. and by Hobart. Paſch. 17 Jac. in Sir Wil. Elvis's Cafe v.
Archbiſhop of York, &c. Hobart 322.
So if Å. doth recover an Advowſon in a Writ of Right, and hath After Reco-
Judgment final, and the Incumbent dying, B. by Uſurpation doth pre- very in a
ſent to the Church, whoſe Clerk' is admitted and inſtituted, and then Wirit of
Right.
B. dieth, A. is put out of Poſſeſſion, and the Heir of B. is not ſo
bound by the Judgment, either in Blood or Eſtate, but that he ſhall
preſent. i Inft. 238. a. So if B. doth levy a Fine to A. of an Advow- Or Fine le-
fon, to him and his Heirs, and after the Church becomes void, B. pre- vied.
ſents by Uſurpation, whoſe Clerk is admitted and inſtituted, this ſhall
put A. the Conuſee out of Poffefſion. And the Reaſon of theſe two
Caſes is; For that at the Common Law, every Preſentation to a
Church did put the rightful Patron out of Poſſeſſion, and did put
him to his Writ of Right, whether the Preſentations were by Titles,
or without ; and therefore albeit the Uſurpation were in both the faid
Cafes before Execution, yet it put the rightful Patron out of Poffcf-
fion. i Inft. 238. a.
And
126
The Clergy-Man's Law: Or, Chap. XIII, ,
w
in Tail.
Dean and
Cs.
Advowſons
ufurpation; And if a Grant be made of two next Avoidances, and a Stranger
CPC.
doth uſurp upon the firſt of them, this ſhall be an Uſurpation upon
Two Avoid- the ſecond Avoidance. Mich. 16 Jac. Sir William Elvis, and Taylor's
ances grant. Cafe. per Cur. Roll's 2. p. 373. Hob. 323. And if Tenant in 'Tail of
ger uſurps a Manor, to which an Advowſon is appendant, doth grant the next
upon the firſt. Avoidance, and dying, the iſſue in Tail doth enter into the Manor,
By Grantee and thereby doth make void the Grant; if ſuch Grantee doth after
of Tenant preſent by Colour of ſuch Grant, that will be an Ufurpation. Noy.
143
So if a Dean doth preſent alone without the Chapter, to an Advow-
Chapter ſon whereof the Chapter is feiſed by themſelves, he thereby uſurps to
the Diſpoſſeſſing of the Chapter. 17 E. 3. 64. b. 14 H. 8. 2, 3. "But
Quære, Whether at this Day a Chapter can be difpoſſed ?
Upon the If two Churches be united by the Aſſent of the Patrons, who there-
two Church- upon agree for ever to preſent by Turns, and after one of them doth
preſent in the Turn of the other, this is an Uſurpation. And the like
Law is, if one feiſed in Fee of a Manor, to which an Advowſon is
appendant, doth make Compoſition with another by Fine, that he
ſhall preſent every other Turn, and then the one doth preſent in the
Turn of the other. Dyer 259. 20. And the Reaſon of theſe laſt Cafes
is, that the Perſons betwixt whom the Uſurpations are made, are nei-
ther privy in Blood as Coparceners, nor in Eſtate as Jointenants, Tenants
in Common, &c.
If an Uſurpation doth gain the Fee of an Advowſon, it muſt not
gaind U fur- be made upon ſuch Perſons whoſe Advowſons are ſpecially guarded by
pations. Law againſt all Prejudice by Uſurpations. And ſuch are firſt, the Ad-
vowſons whereof the King is ſeiſed: For although the King may uſurp
upon others, and gain an Advowſon thereby. 42 E. 3. 4. b. 43 E. 3. 15.
35 H. 6. 62. 18 Eliz. Dyer 35 1. 22. Pafch. 15 Car. 2. Brown v. Spence.
1 Sider fir 193. 1 Keble 590. And although in ancient Time, and
ſince by fome, the Law hath been taken to be, that the King by a
The King's double Uſurpation may be put out of Poſſeſſion, and for the Recovery
of the Right ſhall be forced to his Writ, as a common Perfon ſhall
in Right of be, Fitzh. tit. Quare Impedit. Trin. 18 E. 3. 47. 151. by Shard.
Paſch. 18. Eliz. Dyer f. 351. Mich. 13. Jac. Hughes 263. 43 E.
14. Stanford Prerog. c. 8. 38 E. 3. 3. Mich. 2 Jac. King v. Biſhop of
Winton and Champion. 2 Cro. 54. and that a Grant of ſuch an Ad-
vowſon made by the King, after two Uſurpations, ſhall be void. Pafch.
23 Eliz. C. B. Hughes. Mich. 23 Eliz. 4 Leon. Cafe 227. yet at this
Day the Law ſeems to be ſettled, That neither two, nor twenty Uſur-
pations do put the King out of the Poffeffion of his Advowſon, ſo that
he ſhall be forced to his Writ of Right, and that a Grant made after
ſuch Uſurpations of the Advowſon ſhall be good. Trin. 4 Jac. King
v. Matthew, Brownlow and Gouldsborough 1. 166. Paſch. 2 7ac. King
v. Biſhop of Wincheſter. Noy 18. Paſch. 28 Eliz. Yardly v. Peſcan.
Owen 43. Moor 338. Pafch. 14 Jac. by Hobart in Lord Stanhop's Cafe
v. Biſhop of Lincoln. Hobart 242. Mich 14 Eliz. 3 Leonard 17. 61.
Mich. 18 Eliz. 4. Leonard. Caſe 339. Paſch. 33 Eliz. Queen v. Arch-
biſhop of York. i Leonard 226. Mich. 38 and 39 Eliz. Qyeen v. Huf-
ſer'. 3 Cro. 519. and Moor 421. Trin. 44 Eliz. Green's Cafe. 6 Co. 30.
In the Right i Inft. f. 344. b. And this Privilege extendeth not only to Advow-
ſons of which the King is feiſed in Right of his Crown, but to ſuch
chy.
alſo of which he is feiſed in Right of his Dutchy. Paſch. 33 El. Queen
v. Biſhop of York. i Leon. 226. Mich. 38 and 39 Eliz. Queen v.
Hulley. 3 Cro. 519. Regiſter 31. Contra.
So
Advowſons
3:
of his Dut-
3
Chap. XIII. The Complete Incumbent.
127
Cookie
So if the King hath Right to prefent to a Church, for that the law- rllurpation,
ful Patron is outlawed, and a Stranger doth uſurp, and Six Months
do paſs; yet the King may have his Quare Impedit for the Avoidance, if the Patron
and ſhall remove the Uſurper's Clerk, and thereby the Advowſon is is outlawed.
recontinued to the rightful Patron, who otherwiſe had been out of
Poffeflon, and driven to his Writ of Right. i Inft. 363. b.
And by Hobart, Uſurpers upon the King's Advowſons are but Intru- When Ulu's
ders, and Treſpaſſers to him, and if the King will, he may change pers are bus
Intruders,
them by Actions of Account as Bailiffs, and yet may have his Writ &c.
of Right of Advowſon. But if the King's Patentee of an Advowfon King's Pá:
doth preſent twice to one Advowſon, and his Clerk be inſtituted, and tendeei
inducted, although the Patent is void in Law; ſo that the Advowſon
doth not paſs thereby; yet the Patentee hath fo gained the Advowſon
by Uſurpation againſt all Strangers, that if he be diſturbed at the next
Avoidance, he may maintain an Affize of Darrein Preſentment againſt
the Stranger that hath no Title to it. 18 Eliz. Dyer 351.
However, it is agreed, that if a common Perſon doth ufurp upon When a com-
the King, and his Clerk is not only admitted, and inſtituted, but alſo mon Perſon
inducted; the King is ſo far diſpoſſeſſed of his Preſentment, that he the King, coco
cannot prefent until the Incumbent is removed; which he may do at
ány Time, while the Incumbent lives, by Quare Impedit, but not
without Suit; or he may preſent after his Death, as if no Uſurpation
had been. 6 Co. Green's Cafe 30 Pafch. 18 Jac. by Hobart, in Lord
Stanhop's Cafe v. Biſhop of Lincoln, and others. Hobart 241, 242.
Mich. 3 Jac. Boſwel's Cafe. 6 Co. 49. b. 2 Inft. 358. But (as Popham
faid) a Confirmation being made by the King to ſuch Preſentce, is And King
good to eſtabliſh his Poſſeſſion, againſt a Recovery in a Qzare Impedit confirms the
by the King afterwards; that is the Clerk as aforeſaid being inducted,
otherwiſe not. 11 H. 4. 9i and yet this Confirmation operates not to
the Amending of the Eſtate of the Uſurper ; nor to prejudice the King's
Right to preſent at the next Avoidance; but where any Clerk is law-
fully poſſeſſed of a Benefice to which the King hath Right, and may
remove him by Action, the Clerk obtaining the King's Confirmation, The King's
doth ſo ſtrengthen his Title which before was voidable as to make the Confirmation
Benefice ſure to him for his Life againſt the King, as ſeems to be a- the Title 4
greed by very many Books. 9 E. 3. 20. 18 E. 3. 21. 45 E. 3. 19. 11 gainſt the
H. 4. 9. 76. Fitz. Nat. Br. 34. Lit. f. Vaughan 26. 2. Brownlow King
and Gouldsborough 166. In the Caſe, Dyer 292, mentioned before,
126, the Confirmation was adjudged void; but that was by Reaſon it
was obtained upon a falſe Suggeſtion, and the King deceived in grant-
ing it, as appears by the Recital of it; but if the King doth make to
the Uſurper a Releaſe, it is ſaid to be void. Jenkins. Cent. 73. C. 96.
Trin. 4. Jac. King. Vi Matthew, Brownlow and Gouldsboroug 166.
Alſo Advowſons, whereof Biſhops are feiſed in Right of their Biſhop's Ad-
Churhes, are guarded by Law againſt all Prejudice by Ufurpations, as vowfón:
to their Succeffors : For if à Biſhop doth ſuffer an Uſurpation, and
dies, their succef-
the Succeſſor may have a Quare Impedit, or preſent to the next Turn forse
by the Aid of the Statute of the firſt of Elizabeth, which reſtrains A-
lienations, and Grants by Biſhops. Dalton v. the Biſhop of Ely. 2 Cro.
673. Trin. 17 Car. 2. C. B. Cornwallis v. Hood. Carter 33. And if
an Uſurpation be made to a Church in the Time of Vacation, this
ſhall not prejudice the Succeſſor to put him out of Poffeffion, but that
at the next Avoidance he may preſent. 1 Inft. 263. b. And by Hobart
and Jones, though a Biſhop be but à Purchaſer of an Advowſon in Biſlicpa Pur-
Right chaſer.
· 128
The Clergy-Man's Law: Or, Chap. XIII.
11
ven to their
Writ of
The Effects
of Advow-
tion.
Wilurpation, Right of his Biſhoprick, and then doth ſuffer an Uſurpation; not ha-
ving preſented: yet his Succeſſors ſhall not be bound thereby, but
may
have a Quare impedit, and lay Poſſeſſion in the Grantor, but not å
Writ of Right, for want of Seiſin, 21 Jac. Dalton v. Pamphlin and
Biſhop of Ely, Leyes p. 80. ſamo Caſe. 3. Cro. 673. and Jones p. 46.
Or if the Predeceſſor do ſuffer a Recovery to be had againſt him without
Title, in a Quare Impedit, by his Default, or Aſſent; or if he ſuffers
Fine and Nonclaim, or Diffeiſin and Defcent, the Succeſſor is aided by
this Statute, 1 Eliz. Yet altho' the Succeſſor by this Statute of the
firſt of Elizabeth may preſent, or if he be diſturbed, may have a Quare
Poffertion
Impedit ; yet he ſhall be out of the Poſſeſſion of the Advowſon by
recontinued. thc Uſurpation, until he hath re-continued it by Preſentment, or Re-
covery in a Quare Impedit ; ſo that before ſuch Preſentment, or Reco-
very, a Grant thereof made by him ſhall be void. Mich. 22 Jac. C. B.
Dalton v. Biſhop of Ely, Fones 46. However, ſuch Ufurpations ſhall
Biſhops dri- bind thoſe Biſhops who ſuffer them, and they ſhall thereby be driven
to their Writ of Right, or elſe they ſhall loſe their Preſentment for
Right. their Times to ſuch Advowſons, in Dalton's Cafe v. Pamphlin in Leyes
8o. and 2 Cro. Rep.673. Mich. 22 Jac. Dalton v. the Biſhop of Ély,
Jones 46. And I take the Law to be the ſame, as to all other Eccle-
líaftical Perſons feiſed of Advowſons in the Right of their Churches,
by the Stat. of 13 El. c. 10.
Reſpect being had to theſe Rules, it may be truly ſaid, that the Fee
fons gained of an Advowfon may be gained by Uſurpation, of which there are di-
by Uſurpa- vers Effects : For firſt, The Poffeffion of the Advowſon by Uſurpation
is ſo in the Uſurper that he that was before the Uſurpation feifed of
the Advowſon, hath thereby only a bare Right remaining in him ; and
therefore, he upon whom the Uſurpation is made, before he hath by
ſome proper Means regained the Poſſeſſion of the Advowſon, if he doth
make a Grant thercof, or of the 'Thing to which it was appendant,
the Advowſon doth not paſs thereby. 16 E. 3. Quare Impedit 67. and
in F. N. B. and by Hobart. Paſch. 14 Jac. in Lord Stanhop's Caſe v. .
Biſhop of Lincoln, Hobart 241. and the fame Book, 321, 322.
It puts hiin
And this holds true in the Caſe of all common Perſons, even of
that hath
the Inheri- thoſe that are relieved by the Statute of Weft. 2.C. 5. made the 13 E.
tance out of 1. and therefore if one doth uſurp upon a Leſſee for Years, (he in the
Poſfellion. - Reverſion is a Perſon relieved by the faid Statute) yet ſuch Uſurpati-
on doth gain the Fee, and doth put him that hath the Inheritance
out of Poffeffion; and ſo it is in all other Perſons Caſes, that are within
the ſaid Statute of Weſtminſter. Rudd's Cafe v. Biſhop of Lincoln. Hut-
ton 66. For tho' the Statute doth give them a Poffeſſory Action for
the Recovery of their Preſentment upon an Avoidance after an Uſurpa-
tion completed, if the Uſurper doth diſturb them, or to remove his
Incumbent, if they fue within ſix Months, (who by the Common Law
were as others driven to their Writ of Right, by which they could reco-
ver only their Inheritances, and not their Preſentments) yet that Sta-
tute doth not make Ufurpations upon the Advowſons of Perſons pri-
privileged vileged thereby, to loſe the Effect of gaining the Poffeffion of the Ad-
vowſon to the Uſurper, nor doth it enable them to grant ſuch Advow-
ſons, whilſt they do remain diſpoſſed thereof. Mich. 3 Jac. Boſwell's
Caſe. 6 Co. 49. Pafch. 14 7ac. Lord. Stanhop v. Biſhop of Lincoln.
Hobart 241. And therefore, if a Manor with an Advowſon appen-
dant doth deſcend to any of the Perſons privileged by the ſaid Statute,
as to an Infant, and during the Infancy, the Church becoming void, a
Stran-
:
;
Adrawfons
of Perſons
2
Chap. XIII. The Completė Incumbent:
129
an Infanc.
uſurped up-
on, to make
to grant.
Stranger doth uſurp, and then the Infant being of full Age, doth en- ufurpatior!,
feoff a third Perſon of the Manor; if upon the next Avoidance the SC.
Feoffee doth preſent, the Uſurper, or his Aſſigns, may bring their Quare Stranger
Impedit, and ſhall recover; becauſe the Infant (as before faid) by ulurps upon
Uſurpation was put out of Poſſeſſion, and remained ſo at his full'Age
when he made the Feoffment, and the Advowſon did not paſs. 16 E.
3. Quare Impedit 67. Adam's Cafe cited by Coke in Boſwell's Cafe.
6 Co. 50, and Lord Stanhop v. Biſhop of Lincoln. Hob. 241.
After an Uſurpation, the Perſon uſurped upon (as hath been ſaid) Hinders the
having only a bare Right remaining in him, cannot therefore grant
the Advowſon of which he is difpoffefſed, nor the Right remaining in Grants, etc.
him after the Uſurpation; the Reaſon is, for that the Uſurpation being
only voidable by Aation, the Transferring of the Right would be the
Transferring of the Action, which cannot be done by any common
Perſon. 16 E. 3. Quare Impedit 67. Adam's Cafe cited by Coke in
Boſwell's Cafe. Mich. 3 7ac. 6 Co. 50. But if fuch Right doth by Prerogative
Act of Parliament, or other Means come to the King, the King by Pre- of the King
rogative may grant the fame; but then the Grant thereof muſt be by
expreſs and determinate Words, for it will not paſs by the Word Ad-
vowſon, for that it is no Advowſon de Facto; nor by the Word Heredi-
lament, being a Word ambiguous, which ſhall never be taken againſt
the King in a ſtrange Senſe, nor by the general Word of Rights, with-
out a ſpecial Mention, or Recital, of the particular Right, which is
meant to be granted, as was reſolved in Cromer's Cafc. 8 El. cited
in Doughty's Cafe. 3 Co. f. 11. Pafch. 14. Jac. Lord Staulop's Cafe
0. Biſhop of Lincoln, and others. Hobart 243, 244.
If an Uſurpation be complete, and the Poſſeſſion of the Advowſon be when the
not regained before the Church becomes void, and then the Church Uſurper's
Clerk ought
doth become void and litigious between the Uſurper and him that hath
the Right, the Ordinary ought to receive the Uſurper's Clerk, and not ved.
the Clerk of him that hath the Right only; unleſs he that hath the
Right be a Perſon relieved by the Statute of Weſtminſter 2. chap; 5;
but the Ordinary in ſuch Cafes may award a Jure Patronat ils, and ſo
be directed by the Verdict. But if he will chufe either of the Clerks
preſented, he muſt at his Peril receive him that hath Right by the
Statute: By Hobart, in Lord Stanhop's Cafe v. Biſhop of Lincoln and
others. Hob. 242.
Tho' by Uſurpation the rightful Pation may be deveſted of the Pof- Poſleſlion
ſeſſion of his Advowſon as aforeſaid, yet thereby (for the moſt part) it regained.
is not abſolutely loſt without Remedy, for by divers Ways it may be
regained by him in whom the Right remains, according as his Cafe
shall be, (that is, unleſs his Caſe be ſuch as that he hath but a remedileſs
Right;) às firſt, by Re-entry: For if a Diſſeiſſor of a Manor to which
an Advowfon is appendant, doth preſent to the Advowſon, and his By the Re.
Clerk is inducted, and after the Diffeiſſee doth re-enter into the Ma- entry of the
nor at the next Avoidance, he may preſent, for his Re-entry defeats
the Uſurpation. 3 H. 4. 8. 14 H. 6. 16.a.
And if he re-enter within the ſix Months, his Preſentee ſhall be re- Where nei-
ceived, and the other outed. 14 H. 6. 24. c. but of an Advowſon in ther by Re-
grofs no Re-entry can be in ſuch Cafe. 3 H. 4. 8. 1 H. 6. 16. And entry, nor
lo it is, if a Man being feiſed of fix Acres of land to which an Ad- Keepeal of
vowſon is appendant, doth die feiſed, and they deſcend to another who
is attainted of 'Treaſon by Ad of Parliament, by which the King doth
become ſeiſed of the ſaid fix Acres, and then the Church voiding, a.
Ff
Stran-
to be recei.
و
.
I30
The Clergy-Man's Law: Or, Chap. XIII.
&c.
Uſurpation, Stranger doth uſurp upon the King, and after the Act of Parliament
being repealed, he to whom the ſix Acres did deſcend is reſtored, and
then thc Church voids again, the ſaid Uſurpation doth continue not
defeated by Repeal and Entry; ſo that neither he that entred, nor his
Feoffee, can maintain a Quare Impedit againſt him who uſurped be-
fore, if he doth diſturb either of them. 28 H. 8. Dyer 24. b. and Roll's
2.p. 375. For altho' that the wrongful Preſentation was when the
Advowfon w as in the Crown by the Act of the Attainder, and con-
ſequently was no Uſurpation upon the Crown; yet that Ad of
Attainder being after repealed, is as if it never had been. 4 H. 7. 11.
and ſo the Advowſon by Relation always continued in the Perſon at-
tainted and his Heir, and then the wrongful Preſentation muſt have
the Effect of an Uſurpation, and put him out of Poſſeſſion, ſo that
neither he nor his Feoffee could have a Quare Impedit.
Alſo the Poſſeſſion of an Advowſon may be regained only by Pre-
Regain’d by ſentation, with Inſtitution and Induction had thereupon at another A-
Inſtitution,
voidance; or if Inſtitution or Induction cannot be obtained upon a Pre-
fentation made to the Ordinary in fome Cafes, the Poſſeſſion of the
By Recove. Advowſon may be had by Recovery in a pofſefſory Action brought af-
ter the Refuſal of the Clerk of him that hath the Right: For by the
Statute of Weſtm. 2. c. 5. it is enacted as followeth :
Thc Rea-
fon.
Eric.
ry, E.
13 Ed
nal Writs ;
Onc of
two of Por-
feflion.
127, 142,
167.
Hob. 240.
Thereas of advowlons of Churches there be but three Duginal
By. 3. Selit
. Writs, that is to ſay, one Writ of Right, and two of Poltellion,
1. Reciting which be Darrein Preſentment and Quare Impedit : and hitherto it
thrce Origi- hath been uſed in the Realm, that when any having n10 Bight to pre-
fent, had preſented to any Church, whoſe Clerk was admitted ; he that
Right, and was very Patron could not recover his advowlon, but only by a Wirit
of Right, which ſhould be tried by Battail 02 by great allize, whereby
2. Inft. 353 þeirs within Age, by Fraud, o2 elle by Negligence of their Wardiens
11 Co. 31.72. and Heirs, both of great and mean Eſtate, by Negligence od ffraud of
Kelw, 1.
Fitz. Quare
Tenants by the Courteſy, Women Tenants in Dower, Oliotherwiſe,
Impedit, '43, fol Term of Life, 02 for years, 02 in Fee-Tail, were many Times
67, 87, 92, ditherited of their advowlons, ol at leaſt (which was the better foz
96, 99, 105,
them) were driven to their Writ of Bight, (in which Caſe hitherto
they were utterly dilinlerited :) Jt is provided, that Cuch Preſents
ments thall not be ſo prejudicial to the right heirs, od to them unta
3 Bulft. 40.
F. N. B. 31 whom ſuch advowlons ought to revert after the Death of any pers
F.
ſons : To as often as any having no Right, doth preſent during the
Perſons pre-
judiced.
Time that ſuch heirs are in Ward, 02 during the Efates of Tenants
Remedy. in Dower, by the Courteſy, oz otherwiſe for Cerm of Life, Od of Years
od in Tail, at the neft avoidance, when the heir is come to full age,
02 when after the Death of the Tenants before named, the advowlon
By Adicir of fhall revert unto the Heir being of full age, he fhall have ſuch action by
Tulrit of advowſon Polleftory, as the laſt anceſtor of ſuch Heir thould
poffeffory. have had at the laſt avoidance happening in his Time, being of full
age before his Death, od before the Demiſe was made for Term of
Life, od in fee-tail, as before is ſaid. The ſame ſhall be obſerved in
Preſentments made unto Churches, being of the Inheritance of
For Religi- Wives, what Time they ſhall be under the power of their husbands,
ous Men, which muſt be aided by this Eſtatute by the Remedy afojelaid. gila
Religious men, as Biſhops, arch-Deacons, Parſons of Churches,
and other Spiritual Men, fhall be aided by this Eltatute, in caſe any
having no Right to preſent, do preſent into the Churches belonging to
PIC
For Heirs.
Advoivron
I
Chap. XIII. The Complete Incumbent.
131
Coc.
Prelacies, Spiritual Dignities, Pirlonages, 02 to Houſes of Reli. Uſurpation
gion, what Time ſuch houſes, Pielacies, Spiritual Dignities of Par:
Conages be vacant.
Sect. II. Meither hall this Act be lo largely underfood, that fucy Reverſal of
Perſons, for whole Remedy this Statute was ojdained, ſhall have the Judgment
Recovery aforeſaid, furmiling that Guardians of Heirs, Cenants in Vide Serie
Tail, by the Courteſy, Tenants in Dower foz Term of Life, of fod H. 4. c. 3.39
Years, or husbands, which faintly have defended Pleas moved by them, E. 3. 15. Cro
oz againſt them: Becauſe the Judgments given in the King's Courts Cro
. El. 207.
thall not be adnulled by this Statute, the Judgment thail fand in 6 Co.61.
force, until it be reverſed in the Court of the King as erroneous, if 5 Co. 102.
Erroz be found; Od by Aliſe of Darrein Preſentment, 03 by Enquett
by a Writ of Quare Impedit, if it be paſſed, od be adnulled by attaint of
Certification, which fall be freely granted. See now the Stat. 7 Annæ,
c. 18. ch. 8. antea.
i Inft. 344.
By which Statute it appears, that at the Common Law before the When Re-
fame was made, when any having no Right to preſent, had prefented covery, was
to a void Church, and got his Clerk admitted, the very Patron (being Right only.
a common Perſon) was diſpoſſeſſed thereby of bis Advowſon, and could
not recover the ſame by any other Means, but by a Writ of Right of
Advowſon ; nor could he recover his Preſentment by that Writ, nor by
Quare Impedit or Darrein Preſentment ; for by the Common Law the
Writs of Quare Impedit and Darrein Preſentment did lie in the Cafe
of a common Perſon only, before the Church was filled, againſt any
one that did diſturb the Patron, ſo that he could not prefer his Clerk.
And it is ſaid, That anciently there were only two Writs whereby to
recover an Advowſon, (viz.) a Writ of Right, and an Aſſiſe of Dar-
rein Preſentment ; for that a Quare Impedit was afterwards ordained
where an Afliſe would not lye. Mich. 10 E. 2. 301. Wherefore by
the aforeſaid Statute it was provided generally for all, that if the De-
fendant alledgeth Plenarty of the Church of his own Preſentment, the
Plea ſhall not fail by reaſon of the Plenarty, ſo that the Writ be pur-
chaſed within the ſix Months, tho' he canriot recover his Preſentnient
within the ſix Months.
Alſo by the aforeſaid Statute it is ſpecially provided for ſome certain Perſons pro-
Perſons, that tho' Uſurpations have been by others ſuffered to be made vided for,
in former 'Tinie, to the diſpoſſeſſing them of their Advowſons; yet ſuch Writ pofter-
Uſurpations ſhall not be fo prejudicial to them, as that they ſhall be fory.
driven to their Writs of Right to recover the Poſſeſſion thereof; but
that they may have ſuch Action poſſeſſory (if diſturbed at the next A-
voidance after the Right defcends to them) for the Recovery -of the
Poffeffion of their Advowfons and Preſentations, as the Perſons that ſuf-
fered the Uſurpations might have had when diſturbed, viz. an Action
of Quare Impedit or Darrein Preſentment, or as Hobart infers in Lord
Stanhop's Cafe v. Biſhop of Lincoln. Hob. 238. may preſent at the Or Preſent-
firſt Avoidance that happeneth in their Time, and ſo regain the Poffef- ment.
fion without Action; becauſe the 'Tenor of the Quare Impedit, which without
To regain
by this Statute is given for their Remedy, is, Quod præmittat ipſum A&tion. .
præſentare, &c. Rudd v. Biſhop of Lincoln, Huttori 66. and by Ri-
chardſon in Dixy's Cafe v. the Bailiff, &c. of Derby. Hetley 159.
Now the Perſons that are thus ſpecially provided for by the ſaid Sta- As Heirs,
tute, are firſt Heirs ; that is, ſuch who have an Advowſon by Deſcent, Anceſtors
being Heir to ſome of his Anceſtors, c. For the Words of the Statute had Right.
Ff 2
are
.
.
132
The Clergy-Man's Law: Or, Chap. XIII .
foc.
Not
tute.
tee in Loco
ter a Leaſe
furpatior, are not, Whoever uſurps upon an Advowſon of Inheritance of an In-
fant; for that an Eſtate purchaſed, whilſt in the Hand of the Purcha
fer, that may deſcend, and be inherited from him, is properly called
an Inheritance, as well as that which he inherited from another by De-
ſcent, Litt.f. 3. So that Heirs are to be underſtood here only in re-
ſpect of fuch Advowfons to which their Anceſtors had Right ; by Ho-
bart in the Lord Stanhop's Cafe, v. Biſhop of Lincoln, Hob. 238, &c.
and by Jones in Dalton's Cafe v. Biſhop of Ely. Fones 48. Fitz.
Por Heirs by Nat. Br. 34. Therefore if an Heir within Age, hath an Advowfon by
Purchaſe, he is not remedied in caſe of Uſurpation fuffered, by this Sta-
1 E. 2. Fitz. Quare Impedit 43. 35 H. 6. 60. 3 Jac. Bofwell's
Cafe. 6 Co. 50. b. and by Jones in Dalton's Cafe. Jones 43. and 2
Inft. 358. And yet if one feiſed of an Advowſon, doth make a Leafe
thercof for Years, and the Reverfion deſcending to the Heir is by him
granted to another, and then the Leſſec doth ſuffer an Uſurpation; af-
By a Gran-
ter the End of the Leaſe, the Grantee of the Reverſion, when the
Haredis.
Church voids, may have his Quare Impedit, becauſe he is in Loco
Hæredis, who was relievable, if he had kept the Reverſion ; by Hobart
in Lord Stanhop's Cafe v. Biſhop of Lincoln, &c. Hob. 240.
By Heir of If a Man doth purchaſe an Advowſon, and before any Preſentation
Grantee af- made by him, doth make a Leaſe thereof unto another Perſon, who
cxpired.
doth fuffer an Uſurpation ; the Grantee dies, his Heir may have a
Quare Impedit at the next Avoidance after the Leaſe ſhall be expired,
and may lay the laſt Preſentation in his Father's Grantor, according to
the Words of the ſaid Statute, Q. 1. which are: Chat he thall have ſuch
gæion pofleflory as the latt Ancetto: of ſuch Heir ſhould have bad: For
by the Statute, Uſurpations upon the Leffee are to be counted as none
to this purpoſe. But if the Heir (having an Advowfon by Defcent) be-
ing of full Age, doth make a Leaſe thereof to another, who ſuffers an
Uſurpation, the Heir at the next Avoidance after the Leafe is ended
ſhall not have his Quare Empedit, becauſe he being the Maker of the
What Heirs Leaſe, is Party to the Negligence and Wrong: And the Word Heirs
doth import. throughout this Statute, doth import, That he ſhould be in as Heir
of the Reverſion, wronged by the Guardian and other Tenants, which
he could not help: And the laſt Clauſe is more plain, which gives ſuch
Action as the Anceſtor ſhould have had before Demiſe ; fo the Demiſe
muſt not be made by him that is to be relieved, but by his Anceſtors,
What Ro- Lord Stanhop's Cafe. Hobart 240, 241. Fitz. N. B. 31. g. Yet in
the 33 H. 6. 12 and 10, in the Caſe of Humphrey de Bohun, the Re-
may be aid-
verſioner himſelf had Aid; and in 34 H. 6. 27. b. the Prior of Cornwall
granted two Avoidances, and the Grantee having preſented once, died,
and then the Heir of the Grantee, by Uſurpation upon the Executor
prefențing to the ſecond Avoidance, when the Church voided again,
the Prior that made the Leafe was aided. But Note, that againſt Ho-
bart the other Judges are ſaid to hold (tho' not all alike) that Rever-
ſioners, as well of full Age as within Age, and as well of their own
Leaſe, as of the Leaſe of their Anceſtors or Predeceſſors, whoſe Heirs
they were, were within the Remedy of the Law, and that the Law
preſerved the Poffeffion for the Reverſioner, tho' not for the Leſſees, and
ſo made a kind of baſe Fee by Wrong, during the Leaſe in the Uſur-
per, which was Hutton's Opinion. Things (faith Hobart) hard, and
not warranted in his Judgment. Lord Stanhop's Caſe v. Biſhop of Lin-
coln and others, Hobart 244. But as to this Difference, 7ones in
Dal-
verſioners
ed.
3
Chap. XIII. The Complete Incumbent.
133
Daltori's Cafe v. the Biſhop of Ely. Mich. 22 Fac. Jones 48. deli- blurpatiou,
vers his Opinion thus: If one being a Purchafer, doth Leaſe for Years,
he in Reverſion ſhall not be aided; but if the Leffor hath his Title by
Deſcent, in ſuch Cafe he ſhall be aided. So in the Caſe of the Prior, Purchaſer
if he had been Purchaſer and Leffor for Life, he had not been aided; and Leſſor.
but having the Advowfou by Succeffion, he was within the Remedy :
But Quære. Vide Cornwallis v. Hood. Trin. 17 Car. 2. C. B. Carter
2
Ref. 43:
By this Statute, not only Heirs that are in Ward, but alſo ſuch as What Hei:s.
are not in Ward, are relieved, altho' the Ufurpation be upon the Heir
himſelf, the Advowſon being in his own Hands, and by Defcent; by
Hobart and Fones in Dalton's Cafe, &c. Fones p. 45. See Carter
Rep. 43. 2 Inft. 359. But then they hold againſt the other Judges,
as before, that Heirs within Age only are remedied, the Uſurpa-
tion being made upon their Advowſons. Alſo Hobart holds, That if
an Infant-Heir doth ſuffer an Uſurpation, and another Avoidance dotha Infant fleir.
fall in his Nonage, he may, by reaſon of this Statute, cither preſent,
or have his Quare Impedit for that fecond Avoidance, tho' the Words
of the Statute Se&t. I. be, Tuhen the beir is come to full age: For that Clauſe to
Clauſe was put in to anſwer a particular Caſe of an Heir in Ward, put Guardians
.
in the Preamble, where the Guardian had ſuffered the Uſurpation ; in
which Cafe the Statute faw, that the Ward could have no Title till
his full Age : But if a Guardian doth ſuffer an Uſurpation, and then
will ſurrender to his Ward, the Ward fhall not be relieved at another
Turn during his Nonage, becauſe he ſhall be counted in by the Guar-
dian to this purpoſe : But if a Guardian in Soccage, or his Ward, af-
ter fourteen Years of Age, fuffer an Uſurpation, he thall be within the Heir's Age.
Relief at any other Tum before twenty one; and
therefore he doth
deny the Opinion of Thorp, 16 E. 3. Fitz. Quare Impedit 67. Upon
this, that it was the Meaning of this Law to ſucour the Weakneſs of
an Heir within Age, when he maketh a Fault, but not to enforce him
to fuffer a Wrong. So he declares his Opinion to be, That if an Uſur-
pation be made upon one in Ventre la Mere, at the next Avoidance af- Heir in Ven-
ter his Birth, he ſhall be relieved, contrary to the Iſſue taken.
I E. tre fa Mere.
3. Fitz. Quare Impedit 158. For ſuppoſe (faith he) the Heir then in
Ele being a Daughter, was relievable, in reſpect of her Nonage, were
iť reaſonable that the Son after born (to whom the Wrong is now done)
ſhould loſe that Relief? Beſides this, the ſpecial Purview of this Sta-
tute for Prelates to be relieved againſt Uſurpations in the Vacation of
their Prelacies, is altogether of the fame Nature and Reaſon. Lord
Stanhop's Cafe, Hobart 240.
But it is faid, That if one doth uſurp upon an Infant that is an Heir, Heir dying
and the Infant doth come to full Age within ſix Months, and doth not without
Heir, Gore
remove the Incumbent by Suit, he is out of the Statute: By Danby
and Priſot. 35 H. 6. 62. and by Hobart in Lord Stanhop's Cafe, 241.
Or if an Heir, relievable by a Quare Impedit upon this Statute, doth
die without Heir, the Lord by Efcheat (faith Hobart) Thall not pre-
ſent, nor have a Quare Impedit. Lord Stanhop's Cafe 243.
The ſecond Sort of Perſons ſpecially provided for as aforeſaid by this Feme Co-
Statute, are Feme Coverts, and yet only ſuch Feme Coverts as are ventes para
Heirs ; becauſe they have only the fame Remedy given them, which
Heirs have by Reference thereto ; and therefore a Feme Covert being a
Purchaſer, is without the Remedy of this Statute. E. 3. Fitz.
Quare Impedit 43. and by Hobart in Lord Stanhop's Cafe. Hob. 239.
35
134 The Clergy-Man's Law: Or, Chap. XIII
Succeſſors
for.
how reme-
died.
6.
What Suc-
ccffors.
wilurpation,
35
H. 6. 60. and F. N. B. and by Jones in Daltor's Caſe. Jones
CSc.
45. Boſwell's Cafc, 6 Co. 50.
The third Sort of Perſons exprelly provided for to the aforeſaid Pura
of Spiritual poſes by this Statute, are Succeffors of Spiritual Men, in reſpect of
Men, how
provided their Advowſons uſurped upon in Time of Vacancy; but if the Advow-
ſon of a Spiritual Perſon be uſurped upon, when it is in the Poſſeſſion
of a Spiritual Perfon, the Succeſſor hath not the Remedy of this Sta-
tute at the next Avoidance; for he that ſuffers an Uſurpation in ſuch
Caſe, is driven to his Writ of Right, and then the Succeſſion cannot
change it to a Quare Impedit. 7 E. 3. Fitz. Quare Impedit 21. F. N.
B. 38. and by Hobart in L. Stanhop's Cafe, 240. and by Jones in Dal-
Succeſſors of ton's Caſe v. the Biſhop of Ely, Fones 50. But Succeſſors of Biſhops
Biſhops,
are now remedied by the Statute. 1 El. See 3 Cro. 673. Dalton v. Bi-
ſhop of Ely. 70.36. Ley 80. If an Eccleſiaſtical Perſon be ſeiſed of
an Advowſon in the Right of his Church, that came to him by Suc-
ceſſion, and not by Purchaſe, and doth Leaſe it for Life, or for Years,
and his Leſſec doth ſuffer an Uſurpation, the fame Perſon that made
the Leaſe, and alſo his Succeſſor, ſhall be remedied by this Statute of
Weſtminſter 2. after the Expiration of the Term. 34 H. 6. 27. 8 H.
33.
and this by the Equity of the Statute, by Jones in Daltori's
2. Cafe v. the Biſhop of Ely, 7ones 48. But Quære, for the Statute ſeems
only to relieve Spiritual Perfons, when their Advowſons are uſurped up-
on in Time of Vacation. Vide F. N. B. 34. M. Cornwallis v. Hood.
Carter 43. Beſides the Succeſſors relievable, are Succeſſors of ſingle
Corporations, ſuch as Biſhop, Dean, Rector, &c. Brook Preſentment
46. Boſwell's Cafe. 6 Co. 50. a. 34 H. 6. 27. but not the Succeſſors
of compounded Corporations, as Chapters, duc. becauſe the Body
doth continue that committed the Laches, by Hobart in Lord Stan-
hop's Cafe. Hob. 240.
Beſides the Perfons provided for by the Words of the aforeſaid Sta-
fons, as Te-
nants in Tail. tute, (ſome other Perſons) are thought alſo to be relieved by the Equi-
ty thereof: And of theſe are firſt 'Tenants in Tail; for if ſuch ſuffer an
Uſurpation, after their Death the Iſſue in Tail may have the Remedy
given by this Statute at the next Avoidance that happens. 43 E. 3. 20,
24, 25. Vid. 46. Alife p. 4. 8 E. 2. Quare Impedit 167. 34 H. 6. 20,
27. Mich. 3 Jac. Boſwell's Caſe. 6 Co. 50. 2 Inft. 359. and by Hobart
in Lord Stanhop's Cafe 241. By which Tenants in Tail, Fones doth
underſtand, Tenants in Tail in Poſſeſſion: For, faith he, Tenants in
Tail in Reverſion are within the Words of the Statute, Dalton's Cafe
voidance. and Jones, p. 49. Alſo a Grantee of a next Avoidance is within the
See alſo in Equity of this Law, tho' he be not a Lefſee for Years. 24 H.6. 17.
a. and by Hobart in Lord Stanhop's Cafe, 240. which ſee there ; and by
Fones in Dalton's Cafe, Go. Fones 48. 2 Inſt
. 359. And note, That
Whereby
it hath been a Doubt, Whether the King be bound by this Statute; fo
Coparce
ners, Joint- that when he uſurps upon any relievable thereby, the Party grieved be
tenants and not left to his Remedy at Common Law. 35 H. 6. 62. Br. Quare
Impedit 18. But in Magdalen-College Cafe, in the 11 Co. 72. b. it was
provided adjudged, That this being a Statute to remedy an Injury and Wrong,
the King was bound thereby: So alſo is my Lord Coke's Opinion in his
Generally
may
Coniment
upon
this Statute. 2 Inft. 359.
regain Por-
Not only the Perſons provided for by the aforeſaid Statute of Weft-
Intitution minſter, may regain the Poſſeſſion of their Advowſons by Preſentation
aid Inducti- and Inſtitution at another Avoidance, but alſo all other Perſons that
have been diſpoſſeſſed thereof: For as by Prefentation and Inſtitution in'o
Other Per-
Grantee of
a next A.
Stat. 7 A1-
98, c. 18.
Ant. c. 8.
Tenants in
Coinmon are
for.
Perſons
fellion by
on at the
next Avoi-
dabee.
a
3
Chap. XIII. The Complete Incumbent.
135
C.
a void Church ſuffered by the rightful Patren, the rightful Patron (as Wurpation,
hath been ſhewed) may loſe the Poſſeſſion of his Advowſon to an Uſur-
per; fo by the fame Means the Uſurper may loſe the Poſſeſſion of the
Advowfon which he had gained by Uſurpation again unto the rightful
Patron; otherwiſe an Uſurper would be better ſecured by Law in the
Poſſeſſion of an Advowſon gained only by Uſurpation than ever the right-
ful Patron was before the Ufurpation made unto him. 17 E. 3. 37.6. I
Inft
. 194. a. 276. a. Cornwallis v. Hood, Carter Rep. 44. 3 Bul. 38. But
tho' all other Patrons as well as thoſe privileged by the Statute of Weſt-
minſter, may by Preſentation and Inſtitution, regain the Poſſeſſion of
their Advowſons loft by Uſurpation, yet with ſeveral Differences: For yet with fe-
firſt, Perſons that are within the Statute of Weſtminſter, have a Right veral Diffe-
to preſent, and by having their Clerk inſtituted, they are no Ufurpers; Fences as to
but all other common Perſons, have not right to preſent after the Ufur- vileged and
pation is made upon them, unleſs they bring their Writs before a ſix common
Months Plenarty, and thereby recover it; and therefore preſenting, and
getting their Clerks inſtituted, tho'it be to an Advowſon to which they
have a Right remaining in them, they are thereby but Uſurpers. 17 E.
Perſons
3. 37. b.
:
A fecond Difference is ; That if the Ordinary will not admit the 2. If the
Clerk of a Perſon within the aforeſaid Statute, ſuch Perſon, tho'he hath Ordinary
only a Right, and not the Poſſeſſion of his Advowſon, inay bring his will not ada
poffeffory Action, viz. either Quare Impedit, or Darrein Preſentment,
and recover both his Preſentations, and Poſſeſſion of his. Advowſon
thereby. But if any other Patron, not within the Benefit of the Statute
(fave the King,) doth preſent to his Advowſon when diſpoſſeſſed there-
of, and the Ordinary will not receive his Clerk (as he ought not, being
bound to receive the Clerk of the Uſurper by the Direction of Law)
he is without any Remedy.
A third Difference is, That if the Ordinary doth Inſtitute the Pre- 3. If the Or-
ſentee of a Perſon within the Relief of the faid Statute, he doth that dinary doth
which he ought to do, and no more than what the Law, if an Action Clerk.
be brought in Time, would force him to do, and the Uſurper is there-
by diſpoſſeſſed, not only of the Preſentation, but of the whole Fee of
the Advowfon, and this without any Remedy; for he can neither maina
tain a Quare Impedit, or bring a Writ of Right : But if the Ordinary
doth admit, &c. the Preſentee of any common Perſon diſpoſſeſſed, and
not remedied by the faid Statutc, though there may be a Right remain-
ing in him, yet fuch Admittance is a Wrong in Law to the Uſurper, the
Right of preſenting being in him to all Avoidances that happen during
the 'Time the Uſurpation doth continue in force, and not avoided: And When the
though the Common Law, before the ſaid Statute of Weſtminſter, the Uſurpation
rightful Patron being out of Poſſeſſion, by getting his Clerk inſtituted ed.
had by Uſurpation regained the Poſſeſſion of his Advowſon froin the
Uſurper without Remedy, yet at this Day, by reaſon of the ſaid Sta-
tute, neither the Poſſeſſion of the Advowſon, nor the Preſentation to the
Avoidance, are by ſuch Inititution abſolutely gained from the Uſurper,
until after ſix months, that Plenarty may be pleaded, if the Uſurper
happen to bring his Action : For it is notorious, that after an Uſurpation
fuffered, and Plenarty of the Uſurper's Clerk by 6 Months, if the Church
becomes void again, before that he that hath the Right doth by ſome on to be
legal Act regain thc Poffeſſion, the Uſurper hath Right to preſent to ſuch regained by
ſome lega!
Avoidance; and, before the Statute of Weſtininſter, if diſturbed, might A&.
have had his Poſſeſſory Action for the Recovery of the famc, if he
brought
And Poffein
136
The Clergy-Man's Law: Or, Chap. XIII
Egoc.
another Per-
fon.
parccners.
ز
Wurpation, brought ſuch Action before there was a Plenarty by Inſtitution : And
now, by the ſaid Statute of Weſtminſter, it is ſaid generally, That a
Plenarty Plea ſhall not fail by reaſon of ſuch Plenarty pleaded by a Defendant,
pleaded.
if the Writ be purchaſed within the Six Months : And this Caſe of the
Uſurper is not by Word, or Reaſon, excepted out of the ſaid Statute :
And accordingly it was adjudged (per Curiam) in a Writ of Error, that
if one doth uſurp upon a Purchaſer of an Advowſon in Fee, and the
Clerk of the Uſurper is in by Six Months and after the Church void-
ing, the Purchafer's Preſentee is inſtituted, and inducted ; if the Uſur-
Uſurpation per doth bring a Quare Impedit within the Six Months, againſt the Pur-
upon a Pur- chafer, and his Clerk, this is no Remitter to the Purchaſer
. 14 Car.
Harper v. Wierſdals. Roll's Abr. 2. p. 374. and by Doderidge and Coke
contra. Haughton in Harris and Auſtin's Cafe. i Roll's Reports 210.
3 Bulſtrode 38.
Uſurpation
As the Poſſeſſion of an Advowſon gained by Uſurpation may be de-
avoided by feated by the Inſtitution of him that hath the Right, in ſuch Sort ás is
declared; fo may the Uſurpation be alſo voided by the Inſtitution of
the Preſentee of another Perſon than he upon whom the Uſurpation
was made : For if a Feme doth ſuffer an Uſurpation upon her Advow-
fon, and afterwards doth take an Husband, who preſents to the next
Avoidance in the Right of his Wife, (his Clerk being inducted) this
Remitter ,- doth veſt the Poffellion in the Wife. 14 H. 6. 24. a.
So if three Copar-
mongſt Co-
ceners be of an Advowſon, and the eldeſt doth preſent in her Turn
without Partition, and after a Stranger doth uſurp upon the Turn of
the ſecond, and then the third doth preſent in her Turn; this doth re-
mit the ſecond, ſo that ſhe may preſent again when it comes to her
Turn, as if no Uſurpation had been; for their Right is Joint, and the
Ufurpation being avoided by one, it is avoided for all. Mich. 12 H. 7.
Tho' there Keilwey 1. And the fame Law is, although there were a Partition, be-
was a Parti- cauſe the Partition doth not ſever the Inheritance, but is only as to the
Poſſeſſion ; and therefore they ſhall join in Writ of Right. 2 Roll's Abr.
p. 374. contra. Mich. 12 Ħ. 7. Keilwey p. 1. But if an Advowſon
doth deſcend to two Coparceners, and after an Uſurpation is made up-
on one of them, who doth die without Iſſue, by which her Right doth
defcend to the other Coparcener, this ſhall defeat the Uſurpation with-
out Preſentation, for that ſuch Coparcener cannot have an Action for
Parcel of the Advowſon, being ſeis'd of the Remnant. 17 E. 3. 2 2.
Quære.
The means that a common Perſon (not being privileged by the Sta-
Right by a tute of Weſtminſter) hath for the regaining of his Advowfon, after U-
common Per- furpation with Pienarty, is to bring his Writ of Right of Advowſon for
the Recovery of the fame, which he had beft do before the Church
doth void again, leſt he lofe the next Avoidance that ſhall happen after
the Uſurpation, for want of Poffeffion.
Vicarage
If the Patron of an Advowſon doth create a Vicarage out of the
created out fame lawfully, and after a Stranger doth' uſurp upon him in the Par-
fonage, and afterwards in the Vicarage, and then the Patron doth reco-
ver the Advowſon in a Writ of Right; yet this Recovery ſhall not de-
feat the Uſurpation in the Vicarage, for that the Vicarage is not appen-
dant to the Advowſon of the Parfonage, as is implied by the Cafe here-
after next mentioned, becauſe it is put to prove it. 17 E. 3. 55. b.
But it is to be admitted here, that the Patron of the Parſonage is Pa-
tron alſo of the Vicarage.
tion.
Writ of
fon.
of an Ad-
vowion,
I
If
Chap. XIII. The Complete Incumbent.
137
force
Writ in the
If there be two Coparceners of an Advowſon, and they do agree to Wlurpation,
preſent by Turn, each of them in Truth hath but a Moiety of the
Church ; and though if either of them be diſturbed, ſhe ſhall have (as of a Oxare
is before faid) a Quare Impedit præſentare Idoneam Perſonam ad Èc- Impedit by
clefiam ; for that there is but one Church, and one Incuinbent; yet in cener, and
a Writ of Right of Advowſon brought by one of them, the Writ ſhall of a Writ
of Right.
be De Medietate Advocationis ; for in Truth ſhe hath but a Right to a
Moiety: But if there be two ſeveral Patrons and two ſeveral Incum- Two Patrons
bents in one Church, the one of one Moiety thereof, and the other and two In-
of the other Moiety, and one Part, as well of the Church, as of the one Church.
Town, be allotted to the one, and the other Part thereof to the other,
each of them ſhall have a Writ of Right of Advowſon, De Advocatione
Medietatis. i Inft. 18. a. Fitz. N. Ž. 31 b. In the Regiſter, there is
a Writ of Wright, De Advocatione Médietatis Ecclefia, but there is Nota, of a
no Writ De Medietate Advocations, and for this Reaſon, Mich. 14 E. 2.
Regiſter.
4411. it was objected, That no Writ of Right could be brought De Me-
diet ate Advocationis ; but it was over-ruled.
But though this Writ of Right be the common Remedy, yet it doth Count upon
not lie in all Caſes for all Perſons that are out of the Statute of Weſt- Right
.
minſter, for every one that may recover by this Writ, ought to count
of ſome Seiſin, either in himſelf, or in his Anceſtor; for it is not e-
nough to count of Seiſin in any other. 21 E. 4. I. I H. 4. 2. 21 E. 3.
27 b. Fitz. Nat. Br. 30. But fee now the Stat. 7 Anna Antea. If What Seiſin.
the Incumbent of the Church hath received the Profits thereof, as
the groſs Tythes, thereby the Patron is ſufficiently ſeiſed to maintain
this Writ. 21 E. 4. I. b. Fitz. N. B. 30. But then, ſuch Incumbent
muſt be complete; that is, not only admitted, and inſtituted, but alſo
inducted; for that before his Induction, he hath no Eſtate in the Glebe,
nor can he receive any Tythes as Incumbent; and therefore the Pa-
tron, before his Clerk be inducted, cannot in his Writ (as he ought)
alledge Efplees in himſelf, by the Perception of the groſs Tythes, &c.
by his faid Clerk. 38 E. 3. 9 Hare v. Brikley. Plowden 528. 26 H. 8.
And ſuch Seiſin ought to be within the Memory of Man, O- In what
therwiſe it is not ſufficient to maintain this Writ. 21 E. 4. I, 2. b.
But if a Writ of Right be brought by the King, the King may alledge,
that he, or his Progenitor, was feiſed, without ſhewing any Time e ;
becauſe, Nullum tempus occurrit Regi. 1 Inft. 294. b. But the King
need not of Neceſſity bring this Writ, in that he cannot be diſpofſefs'd
by Uſurpation, as hath been thewed. But if the Patron be duly feiſed
by preſenting once, though divers Uſurpations be after ſuffered, yet
fúch Seiſin is not thereby defeated; but that he may recover by this
Writ. 43 E. 3. 15. a.
From the aforeſaid Particulars it appears, that if a Purchaſer doth Where Quaro
ſuffer an Uſurpation before any Preſentment made by him, and the mediat nog
Six Months to paſs without bringing his Quare Impedit, the Uſurper of Right can
hath gained the Patronage in Fee, and the Purchaſer is without Re- not be had.
medy, and can never have this Writ of Right, becauſe he cannot count
of any Seiſin. 10 Co. 134. b. 43 E. 3. 15. d.
- 3. 15. a. i H. 4. 2. b. 43 All.
21. per Thorp. 32 E. 3. Preſentation 6. 22 E. 4. 9. 1 Inſt. 349. b.
And ſo if a Purchaſer in Tail doth fuffer an Uſurpation, before he
doth preſent, he hath not ſuch an abſolute Inheritance as to maintain
this Writ of Right. 43 E. 3. 15 Mich. 22 Jac. Dalton v. Biſhop of
Ely. Jones 49. nor can the iſſues in Tail, or Leſſee for Life, have it
upon the fame Reaſon. Rudd v. Biſhop of Lincoln. Hutton 66. and
by
3. a.
Time.
ho
2
138 The Clergy-Man's Law : Or, Chap. XIII.
c.
Perſons cna-
medileſs.
Alſo a Pur-
as to other
Gilurpatior, hy Hobart in Lord Stanhop's Cafe. Hob. 322. Fitz. Nat. Br. 31. b.
And fo in the Cafo of a Lord that clains to have an Advowſon alien-
Mortnained in Mortmain by his Tenant, for that he cannot count of
any Seifin
in himſelf, or his Anceſtors, but only in his Tenant, which is not fulfi-
cient to maintain this Writ. 21 E. 3. 27. b.
As no perſon without the aforcfaid Seiſin, can maintain this Writ
bled by Stat. for the Recovery of an Advowfon from an Uſurper, ſo neither can he
have any other Writ, whereby he may recover the ſame, or any Pre-
ſentment thereto, (that is, unleſs he be a perſon that is enabled to
bring his Writ of Quare Impedit, or Darrein Preſentment by the Sta-
tute of Weſtminſter 2. (if diſturbed in preſenting) and by Confequence
cannot recover the Poſſeſſion of his Advowfon,) but muſt give up his
Others Re- Advowſon as loft for ever, without Remedy. Trin. 13 Faç. Harris v.
Auſtin. 3 Bulffr 38. and in 1 Roll's Rep. 210. But this ſeems now re-
medied by the ſaid Statute 7 A111&.
And this doth hold true of a Purchaſer, although he be an Heir
chafer, &soc.! within Age, or a Feme Covert, relieved by the Statute of Weſtminfter,
Advowfuns.
as to other Advowfons, by Defcent; and alſo of a Purchaſer in Tail,
and of a Leſſee, although the iſſue of the Purchaſer in Tail, and he
in Reverſion after the Leaſe expired, may have their Poſſeſſory Action
for the fame Advowſon. Roll's Abr. 2. p. 383. Rudd v. Biſhop of Lin-
coln. Hutton 66. and by Hobart in Lord Stanhop's Cafe. Hob. 322. And
fo if he that is feifcd of an Advowſon in Fec, doth leaſe the fame
for Years, and the Lefſee (the Church being void) doth accept of a
Preſentation from the Leffor, and thereupon is admitted and inducted,
although the Leffor's Prefenting, (the Leſſee conſenting thereto, by ac-
Where Lef- cepting of a Preſentation from the Leſſor) is not properly an Vfürpa-
See accepts a tion ; yet it hath as great an Effect as an Uſurpation made upon the
Preſentation Leſſee, and Plenarty had thereupon: For the Leſſee's Acceptance of
the Leſſor's Preſentation, is a Surrender of his Leaſe. 42 Eliz. Rot.
105. in Sir Arthur Capel's Cafe, cited in Hutton 105. But by Owen,
who reports this Cafe, the Queſtion was, Whether the Lefſee's Accept
ing of a Preſentation from the Leffor, was a Surrender, or an Extin-
guiſhnient of the Leaſe; and there 'tis faid, 'That all the Juſtices held,
that it could not be a Surrender, but an Extinguiſhment: And alſo
'tis faid, That if a Man doth preſent to his own Church, as Proctor
to another, by this he loſeth his Advowſon. 42 Eliz. Rudd v. Top-
Ser'. Rot. 135. Owen 142. ſee F. N. B. 35.
But if a Purchaſer hath preſented, and after, upon another Avoid-
ance, a Stranger doth uſurp upon him, and Six Months paſs, he may
ſented, Epe.
have his Writ of Right of Advowfon before the Church doth void
again : But if he doth not bring his Writ of Right, &c. before the
Church doth void, he cannot, if the Uſurper preſent again, have a
Quare Impedit for that Avoidance, but only his Writ of Right : And
If he ufurp foraſmuch as he may have an Action for the Advowſon, if he uſurp .
upon the Uſurper, and his Clerk be in by Six Months, he ſhall be re-
Uſurper.
mitted. Trin. 13 Jac. B. R. Harris v. Auftin. Rolls i Rep. 211. 7
E. 3. 2. A. 17 E. 3. 37. by Perning.
Where Ple Although when a Patron hath ſuffered an Uſurper's Clerk to remain
narty is not in Poffefſion Six Months, without bringing his Quare Impedit, or Dar-
pleaded a.
gainſt the
rein Preſentment, he cannot, generally ſpeaking, bring either of thoſe
Patron, but Writs, but is driven to his Writ of Right, and is barred of all. Reme-
he recovers. dy, if he cannot ſhew a Poſſeſſion in himſelf, or Anceſtor, fufficient to
maintain that Writ; yet, if after the Plenarty by Six Months, he doth
in
from the
Leflor.
ز
Nota.
Where a
Purchaſer
hath pre-
upon the
3
Chap. XIII. The Complete Incumbent.
139
Cerc.
he Shall not
be remitted.
in Fact bring his Quare Impedit againſt the Uſurper, and his Incum- ufurpaticn
bent, and they do not plead Plenarty by Six Months, but a Non (urit
informatus, &c. upon which the Patron doth recover his Preſentment,
he ſhall be alſo remitted to the Poſſeſſion of his Advowſon. Mich. 12 Poffellion
remitted
Jac. Auſtin v. Harris. 3 Bulſtrode 38 and Trin. 13 Jac. Roll's 1 Rep.
210. the ſame Cafe. And fo the Law is, although the Patron was but
Purchaſer of the Advowſon, and had never preſented before the Uſur-
pation. Trin. 13 Jac. Harris v. Auſtin. 3. Bulſtrode 38. So if the
King doth preſent to an Advowſon of which another is feifed, and af-
ter the Six Months, the Patron doth bring his Quare Impedit againſt
the Incumbent of the King, and the Incumbent not taking the Advan-
tage of the Plenarty, the Patron doth recover upon a Non ſum infor-
matus pleaded, by this the Advowſon is reveſted. Paſch. 12 Jac. Al- Advowſon
ſtin v. the Biwop of London. Brownlow and Gouldsborough 1. 165. reveſted up-/
But if the Patron be a Purchaſer of an Advowſon, and the King doth onRecovery.
uſurp upon him, before any Preſentation is made by him, and the Six
Months pafs before any Quare Impedit is brought againſt the Incum-
bent, though the Patron ſhould afterwards recover in a lụare Impedit
brought after the Six Months were paſt againſt the Incumbent, upon a
Non ſum informatus pleaded, without taking Advantage of the Ple- Aliter where
narty, yet he ſhall not be remitted, becauſe by reaſon of the Uſurpa-
tion completed by the Six Months Plenarty, the Purchaſer hath but a
remedilefs Right without any Action to recover it, and the King is
not Party to the Action. Mich. 12 and Trin. 13. Jac. Auſtin v. Har-
ris. Roll's Abr. p. 374 and 375. See the Cafe in 3 Bulſtr. 38. Har-
ris v. Auftin. Trin. 13 Fac. the fame Cafe. Roll's i Rep. 210.
But if the King doth ſuffer the Clerk of the Purchaſer (who hath Aliter where
recovered as aforeſaid, and removed the King's Clerk by a Writ to the upon a for-
Biſhop) to remain Incumbent until the Church doth void again, and
ry alledged
then the King doth preſent ; and upon a Writ brought by the Purcha- the Advow-
fer, the former Recovery is alledged, although it be not ſhewed, that
veſted.
the Writ, upon which the Recovery was had, was brought within the
Six Months after the Uſurpation; yet whether the Writ was brought
within the ſaid Six Months or not, a Recovery being had, and a Pre-
ſentment made thereupon, the Advowſon is gone from the King, and
reveſted in him that hath recovered; becauſe it ſhall be intended, Intendment.
that the Writ was brought within the Six Months, by Coke, Dode-
ridge and Haughton : For in ſuch Cafe, Omnia præfumuntur ſolemnni-
ter eſe asta. Irin. 13 Fac. Harris v. Auſtin. 3 Bulſtrode 38. and in
Roll's i Rep. 210. And therefore, he that doth alledge, that the Writ
was not brought within the Six Months, ought to fhew it, faid Coke,
in the Caſe before cited.
Though the Clerk, by the foregoing Diſcourſe, may judge of the To what Pera
Title to an Advowſon, and fo know who is the rightful Patron there-
ought to ap-
of; yet this is alſo to be noted, that not always he in whom the Title ply himſelf.
to the Advowſon, or to the void Turn is, but ſome other Perſon in his
Right is to preſent, or prefer a Clerk to his voided Benefice; and to
fuch Perfon it is, to whom the Clerk that hath it in Deſign to make
himſelf Incumbent of the vacant Benefice, ought to apply himſelf :
For the Lord Chancellor of England, or the Lord Keeper of the Great Chancellor,
Seal for the Time being, may, by Vertue of their office, preſent to or Lord
Ксерсr.
any Benefice that is of the Gift of the King, the Value of which is
under Tiventy Pounds in the Books of the King's Firſt-Fruits, and
Tenths. Lord Chancellor's Cafe. Hobart 214. But it ſeems, that in
ancient
mer Recoves
ſon is re-
ſon a Clerk
G g 2
140 The Clergy-Man's Law: Or, Chap. XIII.
Eoc.
Wife.
Guardian in
Wurpation, ancient Time, the Lord Chancellor, &c. had the Privilege of
pre-
ſenting but to thoſe Livings only of the King's Gift, that were under
the yearly Value of Twenty Marks in the King's Books. 38 E. 2. 3
and 8, 9. Br. Quare Impedit 65. Fitz. Nat. Br. 35. k. Yet to ſuch
undervalued Benefices as the Lord Chancellor preſents to, the King,
if he pleaſe, may immediately give the Preſentment. So if a Feme
Covert hath Title to preſent to a Church, She cannot preſent by her
ſelf alone, but with her Husband, and the Preſentment muſt be by the
Husband and Husband and Wife, in both their Names, and not by the Husband in
his Right, and in the Right of his Wife. 28 H. 6. 8. a. Quare Impe-
The Queen. dit 85. But the Queen is a Feme Sole, as it were exempt from the
Perſon of the King, and hath a Capacity to grant, or to preſent to
any void Church without the King, when the Title thereto is in her.
18 E. 3. 2 d. 3 H. 7. 14. b.
Guardian in Soccage, or by Nurture, cannot preſent to a Church
Soccage.
in the Right or Name of the Heir, becauſe he cannot account for it.
29 E. 3. 5. 8 E. 2. Preſentment 10. 7 E. 3. 39. 27 E. 3. 79. i Inft.
17.b. 88. a. But by Daniel, if the Heir be within the Age of Difcre-
tion, there the Guardian ſhall preſent. Mich. 3 Jac. Shopland v. Rid-
ley. 2 Cro. 99. And Berry faith, he hath ſeen the Guardian preſent
in the Name of the Heir, and fo by Green; but Mr. Hughes, in his
Parſons Law, makes a Quare of it, and ſuppoſeth it muſt be intend-
ed of Guardian by Knight-Service, and not of a Guardian in Soccage.
Hughes Parſons: Law, c. 10. f. 76. And it is ſaid and agreed, that
a Preſentment made by the Guardian, in the Name of the Heir, is a
good Title for the Heir in a Quare Impedit brought by him. 42 E. 3.
Quare Impedit 130. Alſo Guardian in Soccage of a Manor, to which
an Advowfon is appendant, if he be diſturbed, ſhall have a Quare Imz-
pedit in his own Name, although that he may not make an
Account
thereof. Temp. E. 1. Hobart 132. adjudged : Yet 'tis faid by my Lord
Coke, That the Heir ſhall preſent, of what Age ſoever he be, and not
the Guardian. 3 Inft. 156. therefore Quære.
If one before the Statute of 27 H. 8. C. 10. of Uſes, had enfeoffed
another in Fee, to the Uſe of the Feoffor and his Heirs, of a Manor
to which an Advowſon was appendant, the Church becoming void, the
Feoffor could not preſent to the Church in his own Name, and the
Statute of Richard IIId. did not aid him ; for this Preſentment is not
like to a Leaſe for Term of Years, made by the Feoffor to a Stranger,
or Feoffment of the Land, or ſuch like, or a Grant of a Rent out of
the Land, or a Grant of the Advowſon of the Church to another,
for this Preſentment is but as a Chattel, and a Thing in Action, veſt-
ed in theſe Perſons, which be Feoffors of the Manor, by Rede and
Grevil Juſtices; but Rede ſaid, 'That the Feoffor might preſent in the
Name of the Feoffees. Paſch. 2 H. 8. Kel. 160. See the Statute 27
H. 8. Of Uſes: For by that Statute, the Ceſtuyque Ufe, and not the
Feoffee, is to prefent.
Vicarage
If the Parſon of a Church be Patron of the Vicarage thereof, yet if
void during the Vicarage doth become void during the Vacancy of the Parfonage,
Vacancy of
the Patron of the Parfonage ought to preſent. 19 E. 2. Quare Impe-
dit 178. and (as I conceive) if the Parſonage be filled before the Vica-
ragc, yet the Right of Preſenting to the Vicarage doth remain in the
Patron of the Parſonage. (Quale.) But it is ſaid, That Perſons out-
lawed, and excomníunicated, may prefent to their Churches, and their
Prefentations ſhall ſtand good, until ſuch 'Fine as they be voided :
And
Fcoffor and
Feoffee.
ز
the Pario-
1:1gc.
Chap. XIV. The Complete Incumbent.
141
Egoco.
And generally, all Perfons that have Ability to grant, or to purchaſe, Didinations
have Ability alſo to preſent to their vacant Churches, according to their
reſpective Rights. Parſons Law, C. 10. But Quære, Whether the Bi- General Sup
Thop may not refuſe the Preſentees of Perſons outlawed, and excom- poſition.
municated, and ſo ſuffer their Churches to lapſe to himſelf?
1
CH A P. XIV.
Of Ordination : The taking of what Orders
neceſſary to make one capable of a Benefice.
Deacons, what Preferments they are capa-
ble of.
Deacon mult
Aving ſhewed by what means a Church dotli become void, and As well
how a Perſon may judge of the Patron's Title to the Ad- Prieft as
vowſon thereof, as Things neceſſary to be known, in order to the ta be Epiſco-
king a Title to a Church Preferment; I come to a Third Thing alſo pally ordain-
neceffary to be known and obſerved in order thereunto, viz. That the
Perſon that would take an Eccleſiaſtical Benefice, muſt, to make him-
ſelf capable thereof, be Epiſcopally ordained, and that as well Prieſt,
as Deacon: For although, in former 'Time, a Lay-man might have
taken a Title to a Deanery, Prebendary, or other Benefice without Cure.
Mich. 29 and 30 Eliz. Bland v. Maddox. 3 Cro. 79. Pafch. 3 Jac. .
Fairchild v. Gain. i Brownlow and Gouldsborough 201. And a Dea-
con might have taken a Title to a Benefice with Cure, and enjoyed
the ſame for the Space of one year after his Induction, without Prieſts
Orders given according to the Manner and Form in and by the Book Layman and
of Common Prayer preſcribed, or formerly by Epiſcopal Ordination. Deacon not
13 Eliz. c. 12.
Yet at this Day, neither Layman, nor Deacon, is ca- being admit-
pable of being admitted into any Parſonage, Vicarage, Benefice, or o- ted,
without
ther Eccleſiaſtical Promotion or Dignity whatſoever, but muſt obtain Prieſts Or-
the Orders of a 'Prieſt to qualify him for the fame. Stat. 14 Car. 2.
C. 4. Neither is a perſon that is merė Laicus, or only a Deacon, ca-
pable of a Donative : For although that he that hath a Donative may
come into the ſame by Lay-Donation, and not by Admiſſion and Inſti-
tution, yet his Function is Spiritual. Co. Litt. 344. a. in the Caſe of
St. Burien in Cornwall, ſaid to be reſolved. Roll's Abr. 2. p. 341. So
that he that is no more than a Deacon, can only uſe his Orders ei- How a meer
ther as a Chaplain to ſome Family, or as a Curate to fome Prieſt
, or Deacon may
as a Lecturer without Title: For the Prebendaries of fome Prebends uſe his Or.
in Cathedral and Collegiate Churches, are to read Lectures there, by Prebenda-
the Appointment of the Founders thereof, and may from thence be rics.
called Lecturers ; but theſe Places are of the Number of Eccleſiaſti-
cal Pronotions, to which the Incumbents are admited by Collation or
Inſtitution, of which a Deacon, &c. as aforeſaid, is not therefore ca-
pable ; yet the King's Profeſſor of the Law within the Univerſity of
Oxford, may have and hold the Prebend of Shipton within the Cathe-
dral
ز
2
1
142
The Clergy-Man's Law: Or, Chap. XIV.
capable of
Church Pro-
EgoC.
cons and
Pricfls.
Dedination, dral Church of Sarum, united and annexed unto the Place of the ſame
Copco
King's Profeſſor for the Time being, altho' that the ſaid Profeſſor be
How choſe but a Lay-nan. Stat. 14 Car. 2. C. 4.
As no Man is capable of a Church Promotion, but he who is or-
motions, muſt dained both Deacon and Prieſt; ſo no Man is to be accounted, or ta-
be tried and ken to be a lawful Biſhop, Prieſt or Deacon in the Church of Eng-
examined,
land, or ſuffered to execute any of the ſaid Functions, except he be
Sce Bp. Gib- called, tried, cxamined and admitted thereunto, according to the Form
fon's Code.
preſcribed, and ſet forth in and with the Book of Common Prayer,
166, 167.
and confirmed by Act of Parliament in the Fourteenth Year of King
Charle; the Second. - Stat. 14 Car. 2. C. 4. Or hath had formerly E-
piſcopal Confecration or Ordination. See the Preface before the Foruz
of Ordaining.
And by the Eighth Canon made by the Convocation for the Pro-
vince of Canterbury in the Year 1603. Whoſoever sball hereafter af-
firm or teach, that the Form and Manor of making and conſecrating
Biſhops, Prieſts or Deacons, containeth any Thing in it that is re-
pugnant to the Word of God, or that they who are made Biſhops,
Prieſts or Deaconus in that Forin, are not lawfully made, nor ought to
be accounted, either by themſeloes, or by others, to be truly either Bi-
Shops, Prieſts or Deacons, until they have ſome other Calling to thoſe
Divine Offices, let them be excommunicated ipfo facto, not to be reſto-
red until he repent, and publickly revoke ſuch his wicked Errors.
Formerly the Rule was, and ſo fay the Statutes 3 and 5 E. 6.
Age for Dea-
That none ſhould be admitted a Deacon, unleſs he was One and
Twenty Years of Age at the leaſt: See the Preface to the old Forin
of Ordaining : But now by Statute 13, 14 Car. 2. no Man may be
admitted to that Order, until he be Three and Twenty Years of Age,
unleſs he hath a Faculty : See the Preface to the new Form of Ör-
daining : And every one that is to be admitted a Prieſt, muſt be full
Four and Twenty Years old. Stat. 13 Eliz. c. 12. Vide Gibſon's
Code. 168.
But note, the Cafe of Roberts vers. Pain. Paſ.. Jac. 2. B. R.which
ſee in 3 Mod. 67. one being preſented to the Pariſh of Chriſt's Church
in Briſtol was libelled againſt, becauſe he was not Twenty Three
of Age when made a Deacon, nor Twenty Four when made a Prieſt ;
and a Prohibition was prayed upon this Suggeſtion ; That if the Mat-
ter was true, a Temporal Loſsi viz. Deprivation would follow; but
it was denied, becauſe ſo it is alſo in the Caſe of 'Drunkenneſs and
other Vices, which are uſually puniſhed in the Eccleſiaſtical Courts,
tho' a Temporal Lofs may enſue.
Regularly, Deacons and Prieſts are to be ordered only upon the
Prieſts, at
Four Sundays immediately following the Four Ember-Weeks; Ca-
110n 31. Four Solemn Times appointed for the making of Miniſters :
But at this Day, upon urgent Occaſion, Orders both of a Deacon and
Prieſt, may be given on any other Sunday or Holy-Day, by every
Dioceſan, but not to be admitted to the Order of Prieſthood, until he
hath been a Deacon for the Space of a whole Year ; yet if for reaſon-
able Cauſes it ſhall otherwiſe ſeem good to his Biſhop, he may be
admitted to the Order of a Prieſt in a ſhorter Time. Rubr. Canoni 32.
None to be made Deacon and Miniſter both in one Day'. No Biſhop
ought to admit any Perſon to the Order of a Deacon, unleſs ſuch
whom he ſhall know, either by himſelf, or ſufficient Teſtimony, to be
of virtuous Converſation, and without Crime: Nor ought he to make
any
.
Deacon and
what Time
to reccive
Orders.
2
Chap. XIV. The Complete Incumbent.
143
1562.
pc.
G
C
C
C
.وع
C
any Deacon a Prieſt
, unleſs he firſt bring to the Biſhop, from Men Daths on
known to the Biſhop, to be of ſound Religion, a Teſtimonial, both Dibination,
of his honeſt Life, and of his profeſſing the Doctrine expreſſed in the Teſtimonial
of Deacons,
Articles of Religion agreed upon by a national Synod, in the Year
Stat. 13 Eliz. c. 12. cind hath been found faithful and diligeit in exe-
cuting the Office of a Dcacon, Rubr. Canoz. 34. The Quality of fuch
as are to be made Miniſters', Canon 35. The Examination of
ſuch as are to be made Miniſters'. No Man ought to be ordained, Miniſters.
unleſs he be lcarned in the Latin Tongue, and ſufficiently inſtructed in
the Holy Scripture ; and being to be made a Prieſt, unleſs he be able
to anſwer, and render to the Ordinary an Account of his Faith in La- Learned in
tin, according to the Articles of Religion aforeſaid, or have a ſpecial the Latin
Gift and Ability to be a Preacher. Stat. 13 El. C. 1 2.
Stat. 13 El. c. 12. Nor ought a-
Tonguez Egico
ny to be admitted, either to the Order of Deacon or Prieſt, unleſs he
Thall firſt fubfcribe to the ſaid Articles. Stat. 13 El. c. 12. Canon 36. Articles to
Subſcription required of ſuch as are to be made Miniſters.' Canon bed
38. Revolters after Subſcription, cenſured. And take the Oath of the
King's Supremacy. Stat. § Eliz. c. 1. Rubr. The Form of which
Oath, till altered, was in theſe Words:
14
A. B. do utterly teſtify, and declare in ury Conſcience, That the The Oath of
Supremacy
Queen's Highneſs is the only Supreme Governour of this Realm, and
of all other her Highneſs's Dominions and Countries, as well in all Spi-
ritual or Eccleſiaſtical Things of Cauſes, as Temporal; and that no Fo-
reign Prince, Perſon, Prelate, State or Potentate, hath or ought to
have any Juriſdiction, Power, Superiority, Pre-ominence or Authority
Eccleſiaſtical or Spiritual within this Realm : And therefore I do utter-
ly renounce and forſake all Foreign Juriſdictions, Powers, Superiori-
ties and Authorities; and do Promilė, that from henceforth I ſhall bear
Faith and true Allegiance to the Queen's Highneſs, her Heirs and laru-
ful Succeſors, and to my Power Jhall alig and defend all Juriſdicti-
0935, Privileges, Pre-eminencies and Authorities granted, or belonging
to the Queen's Highneſs, her Heirs and Succeßors, or united and annex-
ed to the Imperial Crocor of this Reali. So help me God, and by the
Contents of this Book.
C
>
Alſo the Oath of Obedience is commonly, adminiſtred by Biſhops to
Perſons by them ordained ; the Form of which Oath was, till altered,
as followeth:
bedience.
A. B. do truly and ſincerely acknowledge, profeſs, teſtify and declare Oath of o-
in my Conſcience before God and the IVorld, That our Sovereign Lord
King James is lawful and rightful King of this Realm, and of all o-
ther his Majeſty's Dominions and Countries ; and that the Pape, wei-
ther of himjelf, nor by any Authority of the Church or See of Rome, që
by any other Means with any other, hath anzy Power or Authority to
depoſe the King, or to diſpoſe any of his Majeſty's Kingdonis or Lonni-
nions; or to authorize any Foreiga Prizce to invade or annoy him, or
his Countries, or to diſcharge any of his Subje£ts of their Allegiance
and Obedience to l'is Majeſty; or to give Licence or Leave to any of
them to bear Arms, raiſe I umalt, or to offer any Violence or Hurt
to his Majeſty's Royal Perſon, State or Governzuzent, aj to any
his Majeſty's Subjects withizi kis Majeſty's Dominions.
Allo
1
144
The Clergy-Man's Law: Or, Chap. XIV.
Dathe on
Didination
Alſo I do ſwear from rzy Heart, That notwithſtanding any Declara-
tion or Sentence of Excommunication or Deprivation made or granted,
or to be made or granted by the Pope, or his Succelors, or to aný Au-
thority derived, or pretended to be derived from him or his See, againſt
the ſaid King, his Heirs or Succeſors, or any Abſolution of the ſaid
Subje&ts from their Obedience : I will bear Faith and true Allegiance
to his Majeſty, bis Heirs and Succeſors, and him and them will de-
fend to the utterinoſt of my Power, againſt all Conſpiracies and Con-
tempt whatſoever, which shall be made againſt his or their Perſons,
their Crown and Dignity, by Reaſon or Colour of any ſuch Sentence
or Declaration, or otherwiſe, and will do my beſt Endeavour to diſcloſe,
and make known unto his Majeſty, his Heirs and Succelors, all Trea-
Soms and traiterous Conſpiracies, which I ſhall know or hear of, to be
againſt him, or any of them.
And I do further ſwear, That I do from my Heart abhor, deteft and
abjure, as impious and heretical, this damnable Dottrine and Poſition,
That Princes which be excommunicated, or deprived by the Pope, may
be depoſed; or murthered by their Subjects, or any other "whatſo-
And I do believe, and in my Conſcience am reſolved, That neither the
Pope, nor any Perſon whatſoever hath Power to abſolve me of this Oath,
or any Part thereof, which I acknowledge by good and full Authority to be
lawfully miniſtred unto me, and do renounce all Pardons and Diſpen-
ſations to the contrary : And all theſe Things I do plainly and ſincere-
ly acknowledge and ſwear, according to theſe expreſs Words by me (po-
ken, and according to the plain and common Senſe and Underſtanding
of the ſame Words, without any Equivocation, or mental Evaſion, or
ſecret Reſervation whatſoever ; And I do make this Recognition and
Acknowledgment heartily, willingly and truly upon the true Faith of co
Chriſtian. So help me God. Stat. 3 Jac. 1. cap. 4.
ever.
New Oaths i
c.8.
But theſe two Oaths are now both repealed and abrogated by the
appointed by Statute of 1 W. and M. Sell. 1. cap. 8. and new Oaths are thereby ap-
pointed. And all Perſons who were obliged to take the ſaid abrogated
Oaths, are now to take the new Oaths appointed by this Statute, in
Such Manner, at Such Times, before ſuch Perſons, in ſuch Courts or
Places, as they mould or ought to have taken the ſaid abrogated Oaths,
or either of them, in caſe they had not been abrogated; And that evering
Perſon who ſhall negle&t or refuſe to take the ſame, Mall incur and be
liable to the Same Penalties, Forfeitures, Diſabilities, as by any Sta-
tute was appointed, for or upon Negle&t or Refuſal to take the former
abrogated Oaths.
And the Oaths required now to be taken by this Statute, are in theſe
Words following:
The new
Qaths.
A. B. do ſincerely promiſe: and ſwear, That I will be faithful, and
bear true Allegiance to his Majeſty King George. So help me
God.
14.
I
A.B. do ſwear, That I do from my Heart abhor, deteſt and abjure, as
impious and hereticals that damnable Doctrine and Poſition, That
Princes excommunicated or deprived by the Pope, or any Authority of
the Sce of Rome, niay be depoſed or murdered by their Subjects, or any
other whomſoever.
And
3
Chap. XIV. The Complete Incumbent. .
145
@pc.
And I do declare, That 110 Foreign Prince; Perſon, Prelate; State Didination,
or Potentate, hath or ought to have any Juriſdiction, Power, Superio-
rity, Pre-eminence or Authority Ecclefiaftical or Spiritual within this
Realm. So help me God.
The Form and Manner of making or ordaining Deacons; &c. is Form of
making Dea-
thus. When the Day appointed by the Biſhop is come, after Morning
cons, Sci
Prayer ended, there ſhall be a Sermon of Exhortation, declaring the
Duty and Office of ſuch as come to be admitted Deacons, how neceſſa-
ry
that Order is in the Church of Chriſt, and alſo, how the People
ought to Eſteem them in their Office.
After which the Archdeacon or his Deputy ſhall prefent unto the Bi-
ſhop (ſitting in his Chair near to the Communion Table) ſuch as deſire
to be ordained Deacons (each of them being decently habited) ſaying
theſe Words:
Reverend Father in God, I preſent unto you theſe Perſons here pre-
Sent, to be admitted Deacons. Then the Biſhop ſays, Take heed that
the Perſons whom ye preſent unto us be apt and meet for their Learn-
ing and godly Converſation, to Exerciſe their Miniſtry duly to the Ho-
nour of God, and the Edifying of his Church. And the Archdeacon
ſhall Anſwer. I have enquired of them, and alſo examined them, and
think them fo to be.
Then the Biſhop ſhall ſay unto the People. Brethren! If there be
any of you who knoweth of any Impediment or notable Crime in any of
theſe Perſons now preſented to be ordered, ordained Deacons, for the
which he ought not to be admitted to that Office, let him come forth
in the Name of God, and ſhew what the Crime or Impediment is.
And the ancient Way was not to Ordain any, but on an Acclamati-
on of the People, he is worthy, he is juſt, &c. which ſhews that origi-
nally Ordination depended on an Election of the People. But a Right
Reverend Prelate tells us that Method hath been changed for a Thou-
ſand Years paſt, though herein he ſeems Miſtaken. P. 305, 307.
If any Impediment or great Crime be objected againſt him that is to
be made either Prieſt or Deacon at the Time that he is to be ordained, obje&ed, Bi.
UponCrimes
the Biſhop is bound to furceaſe from ordering him, until the Party ac- Thop to fur-
cuſed ſhall be found clear of that Crime, Rubr. If a perſon that doth
deſire to be ordered a Prieſt or Deacon be a Baſtard, he is not without
Diſpenſation to be ordered. II H. 4. 78. a. But the King, as well
as the Archbiſhop, may diſpenſe with ſuch Perſon, ſo that he may be Baſtards.
admitted to Holy Orders. 5 Co. de 7ure Ecclefiaftico, and in Horſeful
and Walle's Cafe. Pafch. 9. Jac. Davis 73. But if ſuch Perſon be ora
dained, and made Parſon of a Church, although he is deprivable, yet
if he doth obtain a Diſpenſation from the King or Archbiſhop before
he be deprived, he ſhall retain the Benefice. II H. 4. 38; 76, 77,
Cc.
Code 171.
ceaſe.
31
El.c. 6.
For the preventing of Orders to be given to unworthy Perſons, it
hath been cnacted, That if any perſon of Perſons whatſoever, fall 02
do at any Time receive or take any Money, fee, Reward of any other king Fees or
Againſt ta-
Profit directly or indire&ly, oz thall take any promiſe, Agreenient, Co- Rewards for
venant, Bond oj other aſurance, to receive any gooney, fee, Beward,
Ordination,
O2 any other Profit, direály ou indire&ly, either to him oy themſelves, 0?
to any other of their, or any of their friends (all ozdinary and lawful
fees only excepted) foz oz to procure the opdaining of making of any
Hh
minis
SPC
1
146
The Clergy-Man's Law: Or, Chap. XIV.
pc.
Didination. Minifter op nginitters, or giving of any Diders of Licence 0. Licences
to preach, that then every perſon and Perſons ſo offending, ſhall foz e:
very ſuch Difence fo{feit and loſe the sum of Forty Pounds of lawful
Money of England, and the Party lo corruptly ozdained, ol made pia
Forfeiturcs
. nifter, of taking Diders, fhall fo feit and loſe the sum of ten pounds.
And if at any Time within ſeven years neft after ſuch corrupt entring
into the miniſtry, oz receiving of Diders, he thail accept od take any
Benefice, Living or Promotion Ecclefiaftical, that then immediately
from and after the Induđing, Inveling op Inſtallation thereof od there-
into had, the ſame Benefice, Living and promotion Ecclefiaftical lhall
be eftſoons meerly void ; and that the perſons 62 Perſons to whom
the advowlon, Gift, Preſentation of Collation ſhall by Law appertain,
fhall and may, by Uertue of this Aa, preſent 02.coltate unto, give and
diſpoſe of the ſame Benefice, Living og Promotion Ecclefiaftical, in ſuch
Cozt to all Intents and purpoſes, as if the Party (o inducted, in vetted oz
intalled had been, 04 were naturally dead, any Law, Didinance, Dua.
lification of Diſpenſation to the contrary notwithſtanding. The one
moiety of all which Fozfeitures thall be to our Sovereign Lady the
Dueen, her heirs and Succellos, and the other moiety to him oz them
that will ſue for the ſame, by axion of Debt, Bill, Plaint 02 Informa-
tion in any of her majeſty's Courts of Record, in which no Eloin,
Protection, Pavilege 02 Tager of Law thall be admitted of allows
ed.
Office of a
Deacon,
Age.
Not to con-
ſecrate and
Egroc. until
It appertaineth to the Office of a Deacon, in the Church where he
ſhall be appointed, to ſerve in affifting the Prieſt in Divine Service,
and in Diſtribution of the Communion, to read the Holy Scriptures and
Homilies in the Church, to inſtruct the Youth in the Catechiſm, in the
Abſence of the Prieſt to baptize Infants, and to preach, if he be ad-
mitted thereunto by the Biſhop, Rubrick. And alſo to bury the Dead,
and folemnize Marriage. Couſin's Tables, Tab. 12. But before he be
four and twenty Years of Age he may not be admitted to preach, nor
to baptize, nor to adminiſter the Lord's Supper, and all Tolerations,
Difpenfations, Qualifications and Licences whatſoever to be made to
the contrary hereof, are meerly void in Law, as if they never were.
Stat. 13 Eliz. C. 12.
If a Deacon be of the Age aforeſaid, neither he, nor any Perſon,
adminiſter, may preſume to confecrate and adminiſter the Holy Sacrament of the
Lord's Supper before ſuch Time as he ſhall be ordained Prieſt, accord-
ordained an ing to the Form and Manner in and by the Book of Common Prayer
Forfeitures. preſcribed, unleſs he hath formerly been made Prieſt by Epiſcopal Or-
dination, upon Pain to forfeit for every Offence the Sum of one hun-
dred Pounds; one Moiety thereof to the King's Majeſty, the other
Moiety thereof to be equally divided between the Poor of the Pariſh
where the Offence ſhall be committed; and ſuch Perſon or Per-
fons as ſhall ſue for the fame, by Action of Debt, Bill, Plaint or In-
formation, in any of his Majeſty's Courts of Record, wherein no Ef-
ſoin, Protection or Wager of Law ſhall be allowed, and to be diſabled
from taking, and beingadmitted iỉto the Order of Prieſt, by the Space
of one whole Year next following. But this Penalty doth not extend
to the Foreigners or Aliens of the Foreign Reformed Churches allow-
ed, or to be allowed, by the King's Majeſty, his Heirs and Succeſſors
in England. Stat. 14 Qar. 2. C. 4. 1202 to any perſon diffenting from
the Church of England; (ercept papiſts and popity Reculants) in ho-
Ty
14 Car. 2.
0.4
Not to ex-
tend to
Dificnters.
Chap. XIV. The Complete Incumbent.
147
20ination,
ly Diders, op pretended holy Duders ; nod to any Pretender of Teacher Method of
of any Congregation of diſſenting Proteſtants, taking the Daths, and
ſubſcribing and making the Declaration, as by the gå is diređed. Stat.
1 W. and M. cap. But Quære, Whether it be lawful or fafe, for one 1 W. M. c.
that is but a Deacon, to aſliſt a Prieſt in the Diſtribution of the Com-
l
munion ; for if that be conſtrued to be an Adminiſtration thereof, it is
prohibited to a Deacon, and by doing it he forfeits one Hundred Pounds.
Stat. 14 Car. 2. c. 4. for the Words of the Statute are, No2 may be
preſume to Conſecrate 02 adminixer, &c.
A Prieſt by his Ordination receives Authority to preach the Word, A Prieft's
Authority.
and adminiſter the Holy Sacraments in the Congregation where he
ſhall be lawfully appointed thereto. Rubr. Stat. 1 Mar. c. 3. Yet
notwithſtanding he may not preach without the Licence either of the
King, or his reſpective Archbiſhop, Biſhop or other lawful Ordinary,
or one of the Univerſities of Oxford or Cambridge. Stat. I Mar. C.
3. 14 Car. 2. C. 4.. 13 El. c. 12. But a Licence by the Biſhop of any
Dioceſe, is ſufficient, although it be only to preach within his Dio- Licence to
ceſe, the Statute not requiring any Licence by the. Biſhop of the preach.
Dioceſe where the Church is. Paſch. 15 Car. 2. B. R. Brown v.
Spence. Keble 503. But this is only to be intended, ſo as to ſatis-
fy the Words of the Statutes, as not to be puniſhed by them, for
want of a Licence to preach; for I take it, ä Preacher by the Canons
is oblig'd to procure a Licence from the Biſhop of the Dioceſe in which
his Church is, notwithſtanding any former Licence obtained by him
from another Biſhop, but ſee more of this Matter, Ch. 33. But if a Per-
fon, that is a meer Lay-man, be admitted and inſtituted to a Benefice Ifa Lay-
with Cure, and doth Adminiſter the Sacraments, marry, Go theſe, ted, admini-
and all other Spiritual Acts, perform'd by him during the Time he ftes, eyes,
continues Parfon in Fact, are good, ſo that the Baptized by ſuch Perfon
are not to be re-baptized, nor Perſons married by him to be married a-
gain, to ſatisfy the Law. Paſch. 42 El. B. R. Coſtard v. Windet, 3 Cro.
775. and by Moor the ſame Cafe, 606.
To what is before faid touching Ordination, &c. we may add the serie helfering
Rightsof the
following Remarks, viz.
Clergy, p.
The 33 Canon expreſsly requires, That no Perſon ſhall be admitted 14 and 429.
into holy Orders, except be produce a Preſentation to the Biſhop of ſome
Ecclefiaftical Living then void within his Dioceſe, and bring a Certifi-
cate that he is provided of ſome Church, or of ſoine Miniſter's Place va-
cant, either in a Cathedral, or Collegiate Church, or that he is a Fellow
or Chaplain in ſome College, either in Oxford or Cambridge, or Maſter
of Arts of five years ſtanding in the Univerſity, and Living there at
his own Charge, or unleſs the Biſhop himſelf ſhortly intends to admit him
to ſome Benefice or Curacy.
And 'tis ſaid, If a Biſhop Ordains a Clerk without a Title, he is bound Eccleſiaſti-
to keep him till preferr'd to fome Benefice. In Conformity whereto
Archbiſhop Laud fent Letters to all his provincial Biſhops, requiring
them not to admit any Perfon into Orders, but thoſe who had a Title
for their Maintenance; and in thoſe. Letters declar'd what ſhould be
a Title, viz.
A Preſentation to ſome Eccleſiaſtical Preferment, a Certificate that
he is provided of ſome void Church, a Grant of ſome Petty Canon's
Place, or the like in a College or Cathedral Church, a Fellow of fome
College in our Univerſities, or a Chaplain there, a Maſter of Arts of
five Years ſtanding, or if the Biſhop who Ordains him, intends in ſome
ſhort Time after to admit him to ſome Benefice or Curacy then void.
But
cal Titles.
Hh2
1
148
The Clergy-Man's Law: Or, Chap. XIV.
Site
Canon 44.
Meethod af But "ris query'd, whether a Lecturer or a Chaplain to a Nobleman will
Proination., fall within any of thoſe Titles?
Note alſo by the 44 Canon. No Bifhop is to admit any Perſon into
Orders, who is not of his own Dioceſe, unleſs he is of one of our Uni-
verfities, or bring Dimillory Letters from the Biſhop in whoſe Dioceſe
he reſides.
19 El.c: 12: And by the Statute iş El. c. 12. He who is to bé ordained a Priete
mua bìing & Tefimontal from four Perſons (known to the Bihop, ta
be of ſound Religion) of his Life and Doctrine ; that is as to his Man-
hers, for the chief 'Things to be enquir'd into are, whether the Perfon be
couumendandus ſcientia Moribus ; and the Biſhop himſelf may on bis
Examination be the proper Judge of his Learning, but as to his Man-
ners he muſt be directed by the Teſtimony of other Perſons.
Form of ot-
The Form now uſed in ordaining a Prieſt is thus :
daining After the Veni Creator Sung, and fome Prayers Read, the Biſhop
Prieft:
with ſuch Prieſts as are preſent, laying their Hands feverally on the
new Prieſt's Head, the Bifhop Pronounces theſe Words.
Receive thou the Holy Ghoft for the Office and Work of a Prieſt in
the Church of God now coinmitted to thee by the Impoſition of our
Hands, whoſe Sins thou doft forgive are forgiven, and whole Sins those
doft retain are retained; and be thou a faithful Diſpenſer of the Word
of God, and of his holy Sacraments, in the Name of the Father, and
of the Son, and of the Holy Ghoft. Amen.
Then the Bifhop delivers a Bible to him with theſe Words.
Fake thou Authority to Preach the Word of God, and to Miniſter
the Sacraments in the Congregation where thous psalt be lawfully ap-
pointed.
Hift
. Rcfor.
The late learned Bifhop of Şarum informs us, That fome Ad-
ditions were made to this Form, after its firſt Inſtitution, by asking the
Prieſt thefe Queſtions previous to his Ordination, viz.
1. Whether he thinks himfelf truly called, according to the Will of
God
2. If he believes that the Holy Scriptures contain all Doctrines fuf-
ficient for Salvation ?
3. If he will inftruet the People out of thofe Scriptures?
4. If he will be faithful to Adminifter thofe Doctrines and Sacra-
ments
5. If he will (endeavour to) baniſh all falfe Doctrines ?
6. If he will be diligent in Prayers and Reading the Scriptures, and
in his Studies, laying aſide the Study of the World?
7. If he will be diligent to order himſelf and his family according
to the Doctrine of Chriſt.
8. If he will maintain and promote Quietneſs and Peace, and Love
among Chriſtian People ?
9. Whether he will obey his Ordinary?
To all which he was to Anſwer in the Affirmative.
But if the faid Queſtions were ſeriouſly confider'd before fuch An-
ſwers were given, efpecially the firft Queſtion, Whether he thinks him-
Self truly called according to the Will of God? that is, inwardly mo-
ved by the holy Ghoſt to take upon him the Miniſtry ; it might prove
not only of more Advantage to the Church of England, and Religion
in general, but likewiſe be a happy Means of procuring the Blefi ng
of
Gód, both on himſelf and thoſe who ſhall be afterwards under his
Care.
But
de Parr.
p. 143
Chap. XV. The Complete Incumbent.
149
nations,
But when the Anſwers are ſuddenly and unpremeditately pronounc'd reſentati:
as moſt commonly they are without any previous Conſideration of the one, flom.
Importance of the Queſtion, when a Man enters into Orders only to ear
.
entitle himſelf to a Benefice without any inward Call from the Holy
Ghoſt, if this be the Cafe, ſurely the Man ſpeaks falſe in the Preſence
of God, and that too on the moſt folemn and ſacred Occaſion, and 'tis
very improbable, That the God of Truth ſhould give a Bleſſing to the
Miniſtry of ſuch a perſon who entred into his Service with a wilful and
refolved Lye:
91-10
:
G H A P. XV.
Of Preſentations, Nominations, Collations,
Election, Inſtitution and Induction; and
of Donatives. Vide Chap. 20. of Preſen-
tations, Admiſſions, &e.
TE
T being declared in the foregoing Chapters, what Things are to The Ways
be known, and obſerved, by a Perſon that would take a Title to an and Means
Eccleſiaſtical Benefice in order thereto; I come now to ſpeak particu- Yerk may
larly of the ſeveral Ways or Means by which ſuch Title may be ta- become law-
ken, or by which a Perſon may make himſelf the lawful and complete ful Incum-
bent, C.
Incumbent of a Church Promotion.
The Ways or Means by which a Clerk may become the lawful In- Are ordinary
cumbent of a Church, are either ſuch, as that one of them muſt be dinary.
obſerved by every one that will ſettle himſelf by legal Title in any
Eccleſiaſtical Benefice, or ſuch as are only to be uſed to open his Way,
in caſe the Clerk is ſtopped in hisProceedings by any of thoſe Means
by which a Title may be had. The Ways by which a legal Title is Several ordi-
taken, are either ordinary, or extraordinary; the ordinary Ways or nary Ways.
Means are by Preſentation, Inſtitution, or Collation, and Induction, or
by Donation, or laſtly by Election and Confirmation.
The firſt Thing to be done then, and which is the moſt uſual Way Iš, To obu
tain a right
of taking a Title, is to obtain the Preſentation of him that ought to
preſent to the void Benefice, with Admiſſion, Inſtitution, and Induction on.
thereupon. The Patron's Preſentation is the Nomination of a Clerk
unto the Biſhop or Ordinary for the Time, to be by him admitted and
inſtituted into the Church, or Benefice that is void. Hughs's Abr. Tit.
Advocuſon 132. Prefention, Nomination and Collation, are ſometimes
in Law uſed for the fame Thing. 14 H. 7. 22. and yet they are com- on, Nomina-
monly diſtinguiſh'd; for Preſentation is an Offering of the Clerk to the tion and
Ordinary; and as is before faid, Nomination may be the Offering of a ſometimes
Clerk to him that may and ought to preſent him to the Ordinary, by the ſame,
reaſon of a Grant made by him
that hath the Power of preſenting, ob Sometimes
diſtinguiſh-
liging him thereunto ; and Collation is the Giving of the Church to the ed.
Clerk, and is that Act by which the Ordinary doth admit and inſtitute
a Clerk to a Church, or Benefice of his own Gift, in which Cafe there
is
Preſentaris
Preſentati-
,
3
150
The Clergy-Man's Law: Or, Chap. XV. .
ken:
Miſlive.
The Form
thercof
ز
Preſentatis is no Preſentation. Preſentation ſometimes is taken, to comprehend
ons, Coc.
not only Preſentation, but Admiſſion, Inſtitution and Induction alſo;
Préſentation as if one grant an Annuity until a Clerk be preſented to a Benefice, it
largely ta- thall not determine until Induction, which is the perfecting of the
Preſentation, by Twiſden Juſtice ; yet the Statute 12 Car. 2, for Con-
firmation of Miniſters, which hath a Proviſo not to Prejudice thoſe
who were preſented by the King before 9 December 1659, was held,
that thoſe who were then preſented, altho' not inſtituted and inducted,
were within that Proviſo. "Hill. 16 and 17 Car. B. R. Harris v. Wil
lis i Levinz, 156. fame Cafe.
I Șiderfin 239. and i Keble 844. If
Preſentation Preſentation or Nomination be made in Writing, it is not properly a
in Writing
is as a Letter Deed, but an Inſtrument in the Nature of a Letter Miſlive to the Bi-
ſhop or Ordinary, to exhibit to him a Clerk to have a Benefice voided.
Co. Litt. 120. d. and it is uſually in this, or the like Form, when it is
made to the Archbiſhop of Canterbury: Reverendi limo in Chrifto Pa-
tri do Domino Domino A. Permi(ſione Divina Cantuarienfi Archie-
piſcopo totius Angliæ Primati & Metropolitano, ejuſve in abſentia Vi-
cario ſuo in rebus Spiritualibus generali ; aut alicíicunque in hac parte
Juficientem authoritatem habenti. If it be made to the Archbiſhop of
Pork, the Word totius is to be omitted: If to any other Biſhop, it muſt
fay; Reverendo in Chriſto Patri Doniino Domino P. Permiſſione
Divina Epiſcopo,cjufve in abſentia Vicario ſuo in Spiritualibusgenerali,
aut alicuicunque in hac parte Sufficientem authoritatein habenti. Pre-
nobilis A. B. Baro de C. verus & indubitatus Patronus ReEtoriæ Ec-
clefiæ Parochialis de D. Salutem in Domino ſempiternam, ad Ecclefi-
am Parochialem de D. prædi&t' veſtræ Diæceſis modo per mortem natu-
ralem E. F. ultimi Incumbentis ibidem vacantem, & ad meam Pre-
fentationem pleno Jure Spectantem ; Dile&tum mihi in Chriſto G. H.
Sacræ Theologia Profeſorem Paternitati veſtræ præſento, humiliter
Supplicans ut præfatum G. H. ad diEtam Ecclefiam admittere, iffumq;
in Rectoriam ejuſdem Eccleſia inſtitui, & induci facere, cum ſuis fra
ribus ( pertinentiis univerſis, cæteraque omnia & fingula peragere &
adimplere in hac parte, qua ad veftrum munus Epiſcopale pertinere
videbantur dignemini cum favore. In cujus rei teſtimonium, &c. If
it ſay, [ad Rectoriam] it is as good as if it be [ad Ecclefiam] Trin. 8.
Fac. King v.-- 2 Cro. 248. And the Preſentation being made in this
Form, if the Biſhop be inhibited, or the See voided, before Inſtitution
is had of the immediate Biſhop, yet the Preſentation is good to the
Metropolitan or other Guardian of the Spiritualities.
Danus, Con-
If the King doth grant a Preſentment by his Letters Patents by theſe
cedimus
, &c. Words, Damus, Concedimus, &c. without any Words of Preſentment,
King's Pre- yet it ſeems, that this ſhall amount to a Preſentment, and to be a fuf-
ficient Warrant to the Biſhop to inſtitute the Clerk preſented. 2 Roll's
Abr. 353. Dubitatur 19 E. 3. Quare Impedit 60. And it is not ma-
terial what Seal is put to the Preſentation ; and yet it is ſaid, that a
Preſentation made by the King under the Exchequer Seal is not good.
What Seal. Trin. 8. Jac. King v. - 2 Cro. 248. However, if the King doth pre-
ſent pleno Jure by Letters Patents under the great Seal of England, to a
Church, Parcel of his Dutchy of Lancaſter, it is as good as if it had been
made under the Dutchy Seal. Trin. 8 Jac. King v. Emerſton, Brown-
low and Gouldsborough 1. 162. 2 Rolls Abr. p. 182. The King v. the
Biſhop of Lincoln. Mich. 11 Jac. Moor 874. So if it had been made
under the Privy Seal without the Broad Seal, tho' I think thoſe that
have Livings of the King above Value have both. Trin. 8 7a. King
.
1
ſentment.
3
2
V.
Chap. XV.
IGI
The Complete Incumbent.
tuition.
Word only
V.--- 2 Cro. 248. The Reaſon of theſe Caſes ſeems to be, becauſe admillion
and 3ntis
nothing is granted or given by a Prefentation, it being but a Com-
mendation of a Clerk to the Ordinary, or a Declaration of the King's
Will, and not any Intereſt, and may be made as well by the Word of That a Pre-
the Patron only (unleſs a Corporation aggregate be Patron, for they fentation
muſt preſent under their common Seal.) 13 H. 8. 12 Br. Corporati- may be by
on 81. as by an Inſtrument in Writing. 19 E. 3. Quare Impedit 60.
38 E. 3. 3. Trin. 8 Jac. King v. 2 Cro. 248. Co. Litt. 120.
Dubitat' Mich. 1649. Canes and Osby's Cafe. Stile p. 156. And
that not only in the Caſe of the King, but alſo of a common Perfon.
Mich. 21 Car. 2. B. R. Clerk v. Heath. 1 Siderfin 42.6. 2 Keble 484.
Co. Litt. 120. That is, if the Patron be in the Preſence of the Ordi-
nary: However, the King may preſent to a Living by his Letter.
Mich. 1649. Stile 156. 2 E. 1. Rot. patentium Membrana 5.
The Clerk being furniſhed with a Preſentation, he is to apply hím- 2. Admiſſion
ſelf to his Ordinary for Admiſſion and Inſtitution; and the Biſhop of and Inſtitu-
the Dioceſe within which is the void Church, for the moſt Part, is the be ordained,
Ordinary by whom he ought to be admitted and inſtituted; and'tho' and how.
the Church is lapſed to the Metropolitan, yet if the Patron doth
preſent before the Metropolitan collate his Clerk, his Preſentation
may
be directed to the Ordinary of the Dioceſe, who may thereupon
inſtitute the Clerk preſented. Roll's Abr. 2. p. 348. Contra, Hill. 41
Eliz. B. R. by Popham. But when the See is void, the Dean and
Chapter, or other Guardian of the Spiritualities by Cuſtom have th
Authority of admitting and inſtituting; or if the See being full, the
Archbiſhop viſiting his inferior Biſhop doth him inhibit, during his Vi-
ſitation, (as the Uſe is) and a Church 'within the Dioceſe viſited doth
Lapſe to the Ordinary of the Dioceſe, the Biſhop, and not the Metro-
politan, ſhall have the Benefit thereof, and the Biſhop may not collate
his Clerk, (becauſe by the Inhibition his Power of Juriſdiction is ſuf-
pended) but muſt preſent him to the Metropolitan, who ought to inſti-
tute hin. Trin. 13 Car. B. R. between Dodſon and Lynn, agreed
by the Civilians. But this Cafe being argued upon another Point, was
not refolved. Intrat. Trin. 11 Car. Rot. 446. Roll's Abr. 2. p. 357.
Admiſſion and Inſtitution may alſo be made by a Commiſſary, having
a Deputation to that Purpoſe. 3 E. 3. 5, and 6, and may be by ano-
ther Perſon than the Ordinary. Roll's 2 Rep. 100. For there are
many Peculiars, wherein neither the Archbiſhop or the Biſhop are to Peculiars
make Inſtitution, Úc. but the Proprietor of that Peculiar, in which
there is this Difference in ſuch Peculiars; that if it belong to a Dean
and Chapter, or other Eccleſiaſtical Body there; although they have
the Right of making all Inſtitutions, &c. within the Peculiar, yet
Inſtitution made in ſuch caſe by the Metropolitan is not void,,but voi-
dable only, for that the Dean and Chapter being an Eccleſiaſtical Bo-
dy, ſhall not be intended free from ordinary Juriſdiction and Viſitati-
on, therefore the Archbiſhop ſhall be ſuppoſed to have a concurrent
Juriſdicton there ; but where Peculiars are in Lay-Hands, which are
free from all ordinary Juriſdiction, in ſuch caſe Inſtitution by the Or-
dinary or Archbiſhop is mcerly null and void. Hill. 36, 37 Car. 2.
C. B. Wrighton v. Brown, 3 Levinz 211.
The Ordinary, whoever he be, that doth admit the Clerk, is firſt
to examine him, that he may be able to judge of his Ability to ſerve
the Cure of the Church to which he is repreſented. 14 H. 7. 22. 4 Time.
E. 3. Quare Impedit 128. Doctor and Student, c. 26. 1. 2. But the Or-
dinary
4
Examinatie
on in what
4
152
The Clergy-Man's Law: Or, Chap. XV.
Boco
be
2. C. 4.
Memorand.as
2 omillion, dinary is not bound inſtantly, upon Requeſt made, to examine the
Preſentec, 6c. but may appoint a convenient Time and Place for the
Clerk to attend him to be examined. 15 H. 7. 6, 7. 14 H. 7. 22. And
by the Canon made, 1 Jac. c. 95. it is Ordained, That although the
Ordinary in former Times, had two months given him to enquire, and
inform himſelf of the Sufficiency and Quality of every Clerk, the Ordi-
nary ſhall have but twenty eight Days only for that purpoſe. Roll's
Alir. 2. p. 355. And the Common Law doth allow hin Time to be
adviſed.
14
H. 7. 22. 15 H. 7. 6,7
The 39 Ar After the Clerk is examined, (if he be to be admitted unto a Bene-
fubfcribed. fice with Cure) he is to ſubſcribe the Articles of Religion, common-
ly called the Thirty-nine Articles, agreed upon in Convocation in the
Year 1562. And this Subſcription muſt be made in the Preſence of the
Ordinary, (and not of his Chaplain, or Secretary only,) and that alſo
before the Clerk is admitted to the Benefice to which he is preſented,
Stat. 13 Eliz. 12. And the Ordinary is not bound to offer the Articles
to the Clerk to be by him fubfcribed, and to require him to do it, but
the Clerk is himſelf to offer to ſubſcribe them; and in this Cafe, upon
the Clerk's Negleet to ſubſcribe the Articles, the Church remains void,
as never full of ſuch Clerk, and no Sentence of Deprivation is neceſſary,
by reaſon that he never was Incumbent, but the Admiſſion and Inſtitu-
tion are void; but otherwiſe it is, upon Neglect, or refuſing to read
the Articles. Trin. 24 Eliz. the Queen v. Biſhop of Lincoln & Cock.
i Anderſon, Caſe 136.
Stat. 14 Car. And in ſubſcribing unto the faid Articles, the Clerk ſhould remem-
ber that it hath been enacted that
Whereas the fir and thirti:
to the 36th eth article of the Fine and thirty Articles aforeſaid, is in theſe
Article for Words following: (That the Book of Conſecration of archbiſhops,
and Biſhops, and opdaining of Prietts and Deacons,lately ſet forth in
Shops, c. the Time of King Edward the Sirth, and confirmed at the ſame
Time by authority of Parliament, doth contain all Things neceſſary
to ſuch Conſecration and Didaining, neither bath it any Thing that
of it ſelf is ſuperititious and ungodly; and therefore, whoſoever are
Conſecrated, 02 Didered, accoiding to the Kites of that Book, lince
the ſecond Year of the aforenamed King Edward, unto this Time, 02
bereafter, ſhall be Conſecrated 02 Didered accolding to the ſame Bites;
we decree all ſuch to be rightly, olderly and lawfully Conſecrated and Dk
dered.) 3t is alſo enađed, That all Subſcriptions hereafter to be had, 0?
made into the ſaid articles, by any Deacon, Prett od Ecclefiaftical perſon
o2 other Perſon whatſoever, who by any Lawnow in force, is required to
ſubſcribe unto the Catd articles, ſhall be confrued, and taken to ertend,
and ſhall be applyed (fox and touching the ſaid air and thirtieth arti-
cle) unto the Book, containing the form and Panner of ghaking,
Didaining and Conſecrating of Biſhops, Priets and Deacons, in this
act mentioned, in ſuch soft and q9anner, as the ſame did beretofore
entend unto the Book fet fožth in the Time of King Edward the
Dirth, mentioned in the ſaid Sir and thirtieth article; any Thing in
the ſaid Article, od in any Statute, ac 02 Canon heretofore had of
made to the contrary thereof, in any wiſe notwithſtanding.
Alſo every Perſon, before his or their reſpective Admiſſion to be In-
cumbent, or have Poſſeſſion of any Deanery, Canonry, or Prebend, in
any Cathedral or Collegiate Church, Maſterſhip, or other Headſhip,
Fellowſhip, Chaplain's Place, or Tutor's Place, of or in any College,
Hall, Houſe of Learning, or Hoſpital, publick Profeſſor's or Reader's
Place
Confecrati
on of Bi.
4
!
153
monly called, The Solemn League and Covenant, to endeavour aizy,
Chap. XV. The Complete Incumbent.
Place in either of the two Univerſities, or in any College elſewhere, or Datis, &c.
to any Parſonage, Vicarage, or any other Ecclefiaſtical Dignity or Promo- en d'om:1-
tion, Curate's Place, Lecturcr's Place, publick or private School, or to
teach any Youth in any Houſe, or private Family, as a Tutor, or
Schoolmaſter, ought before his reſpective Archbiſhop, Biſhop, Ordina-
ry
of the Dioceſc, to have ſubſcribed all the Declaration, or Acknow-
ledgment following, only the Maſters, Heads, Fellows, Chaplains,
and Tutors of, or in any College, Hall, or Houſe of Learning, and
every publick Profeſſor and Reader in either of the Univerſities, are to
ſubſcribe the ſame before the Vice-Chancellor of the reſpective Uni-
verſity, or his Deputy. Scilicet---I A. B. do declare, That it is not lawful Declaration
upon any Pretence whatſoever, to take up Arms againſt the King : and of Conformi-
that I do abhor that traiterous Poſition, of taking Arins by l?is Authority féribed.
againſt his Perſon, or againſt thoſe that are commiſſionated by him ; and
that I will conform to the Liturgy of the Church of England, as it is
now by Law eſtabliſhed: And I do declare, that I do hold, there lies
no Obligation upon me, or on any other Perſon, from the Oath, coik-
0
be had.
Change, or Alteration of Government, either in Church or State, and
that the ſame was in it ſelf an unlawful Oath, and impoſed upon the
Subjects of this Realm, againſt the known Laws and Liberties of this
Kingdom. And after ſuch. Subſcription made, every Parſon, Vicar,
Curate, or Lecturer, ſhall procure a Certificate, under the Hand and Certificate to
Seal of the reſpective Archbiſhop, Biſhop, or Ordinary of the Dioceſe
(who are bound to make and deliver the fame) teſtifying as much, to
the end the fame may be read in his Pariſh Church. But after the
Five and 'Twentieth Day of March, which ſhall be in the Year of
our Lord God 1682. there ſhall be omitted in the ſaid Declaration, or
Acknowledgment, ſo as to be fubfcribed, and read, thefe Words fol-
lowing, Scilicet And I do declare, That I do hold there lies no Words to be
Obligation on me, or any other Perſon, from the Oath commonly called, omitted.
The Solemn League and Covenant, to endeavour any Change or Al-
teration of Government, either in Church, or State, and that the ſame
was in it ſelf an unlawful Oath, and impoſed upon the Subjects of
this Realii, againſt the known Lacus and Liberties of this Kingdo1!!.
So as none of the Perſons aforeſaid ſhall from henceforth be at all ob-
liged to fubfcribe, or read that part of the ſaid Declaration, or Ac-
knowledgment. Stat. 14 Car. 2. 6. 4. And by the Statute, 1 W. and
M. Sel. 1. C. 8. ſo much of this Declaration, as is expreſſed in theſe
Words, (viz.) I A. B. declare, That it is not lawful upon any Pre- Other Words
tence whatſoever, to take up Arms againſt the King ; and that I do to beamitted.
abhor that traiterous Poſition, of taking Arms by his Authority, againſt
his Perſon, or againſt thoſe that are commiſſioned by him, Thall not
from henceforth be required or enjoined, nor any Perſon Sheffer any For-
feiture, Penalty, or Loſs, by the not ſubſcribing the same. So that at
this Day, no Part of this Declaration, or Acknowledgment, is to be
ſubſcribed unto, except this only Part of it, (viz.) That I will conform
to the Liturgy of the Church of England, as it is now by Law efta-
bliſhed.
Likewiſe, every Perſon and Perſons, that at any Time ſhall be pre- Oaths of Su-
ferred, promoted, or collated to any Archbiſhoprick, or Biſhoprick, or
to Allegiance.
any other Spiritual or Eccleſiaſtical Benefice, Promotion, Dignity, Of-
fice, or Miniſtery, within this Realm, or any other the King's Domi-
nions, before he or they ſhall take upon him or them to receive, uſe,
I i
exerciſe,
154
The Clergy-Man's Law: Or, Chap. XV.
011 Homil
lidu.
Daths, &c. exercife, ſupply, or occupy any ſuch Archbiſhoprick, Biſhoprick, Pro-
motion, Dignity, Office, or Miniſtery, ſhall make, take, and receive
the Oaths of Supremacy, and Allegiance, before ſuch Perſons as have,
or ſhall have Authority to adniit any ſuch Perfon, to any ſuch Office,
or Miniſtery; or clfe before fuch Perfon, or Perſons, as by Commif-
fion under the Great Seal of England fhall be named, aſſigned, or ap-
pointed, to adminiſter the ſaid Oaths. And if any ſuch Perfon, or Per-
fons, as at any 'Time hereafter fhall be promoted, preferred, or col-
lated to any ſuch Promotion, Spiritual, or Ecclcfiaftical Benefice, Of-
fice, or Miniſtery, ſhall and do peremptorily, and obſtinately, refufe
to take the fame Oath fo to him to be offered, that then he, or they
fo refuſing, fhall prefently be adjudged difabled in the Law, to re-
ceive, take, or have the fame Promotion, Spiritual or Ecclefiaftical,
within this Realm, or any other the King's Dominions, to all Intents
,
Conſtructions, and Purpoſes. Stat. 1 Eliz. C. 1. and Stat. i W. and M.
c. 8. See the Oaths before. Chap. 14.
Oath againſt
It is alſo uſual for the Ordinary that doth admit, and inſtitute; to
Simony. rcquire of the Prefentee, to take this Oath as followeth : (I N. N. do
Swear, That I have made no Simoniccal Contract, Payment, or Pro
miſe, direEtly or indirectly, by jižy felf
, or by any other, to my Knoce-
ledge, or with 112. Conſent, to any perſon or Perſons what foever, for
or concerning tése procuring, and obtaining of this Ecclefiaftical Dig-
nity, Place, Preferment, Office, or Living, (reſpectively, and parti
cularly naming the fame whercinto he is to be admitted, inftituted,
collated, inſtalled, or confir'nzed,) nor will at any Time hereafter, per-
form, or fatisly any fruch kind of Payment, Contract, or Promiſe,
made liy any other, ecithout my Knozeledge or Conſent : So help nie God,
By what Ca- through Hefus Clarift.) This Oath is by the Fortieth Canon made in
the Year-viz. To ivoid the deteſtable Sin of Simonly, becauſe Brying
and Selling of Spiritual and Ecclefiaftical Functions, Offices, Promo
tions, Dignities, and Livings, is execrable before God; therefore the
Archbiſhop, and all and every Biſhop, or Bishops, or any other Per-
Son, or Perſons, having Authority to admit, inſtitute, collate, irzftal,
or to confirin the Election of any Archbiſhop, Biſhop, or other Perſon,
or 'Perjons, to cinzy Spiritual or Ecclefiaftical Funstion, Dignity, Pro-
motion, Title, Ofice, Jurisdiction, Place, or Benefice with Cure, or
without Cure, or to any Ecclefiaftical Living whatſoever, ſhall before
every Such Admiſſion, Inſtitution, Collation, Inſtallation, or Confirma-
tion of Ele&tion, reſpectively adminiſter to every Perſon hereafter to be
admitted, inſtituted, collated, inſtalled, or confirmed in or to any Arch-
biſhoprick, Biſhoprick, or other Spiritual or Eccleſiaſtical Function,
Dignity, Promotion, Title, Office, Jurisdi&tion, Place, or Benefice
with Cure, or without Cure, or in any Eccleſiaſtical Living whatſo-
ever : This Oath, which is as before, is ſet forth. But as the Law now
ſtands, I conceive, the Ordinary ought not, nor may not, tender, or
adminiſter the ſaid, or the like Oath, by reaſon that it hath been e-
Stat. 13. Car. nacted, by 13 Car. 2. C. 12._ -That it ſhall not be lawful for any
2012.04 Archbiſhop, Biſhop, Vicar-General, Chancellor, Commiſiary, or any
Thc Ex Officio
other Spiritual os Eccleſiaſtical Judge, Officer or Miniſter, or any a
ther Perſon, having or exerciſing Spiritual or Eccleſiaſtical Juris-
diction, to tender, or Adminiſter unto any Perſon whatſoever, the Oath,
Oath abo- 11[ually called the Oat. Ex Officio, or any other Oath, whereby ſuch
Perſon to whom the ſame is tendered, or adminiſtred, may be charged,
or compelled, to confess or accuſe, or to purge hiin, or her ſelf, of any
criminal
non this
Qathi.
ز
lifide,
I
Chap. XV. The Complete Incumbent.
155
Eyor.
tion wliar.
criminal Matter, or Thing, whereby he, or ſhey may be liable to any Induction,
Cenſure, or Puniſhment ; any thing in this Statute, or any other Law,
Cuſtom, or Uſage heretofore to the contrary hereof, in any wiſe notwith-
ſtanding. And yet probably (although the Words of this statute ſeem
to take away the Uſe of the aforeſaid Oath) its Makers had no Con-
ſideration of it, in paſſing thereof; therefore (Quære.)
If the Biſhop by Examination doth find the Clerk capable of the Admiſlion
Benefice, after he hath feen other Matters performed in him, which and Inftiiu.
are required of him, in order thereunto, he is to admit, and inſtitute
him: Admiſſion is nothing elſe but the Ordinary's Declaration, that he
of the Preſentee, as a fit Perſon to ſerve the Cure of
the Church, to which he is preſented ; and Inſtitution, is that Act by
which he doth commit to him the Cure thereof.
It is not of Neceſſity, that the Examination, Admiſſion, or Inſtitution
be made by the Ordinary within the Dioceſe in which the Church is;
for the Juriſdiction of the Ordinary, as to ſuch Matters, is not local,
but follows the Perſon of the Ordinary wherc-ever he goes. Hill. 9
Car. Cort v. Biſhop of St. Davids. Jones 331. Owen and Prichard's
Cafe. 1 Cro. 341. Hutton's Cafe. Hobart 15. Parfoirs Counſellor 8; 9.
21 E. 4. 14. The Clerk being inſtituted, the Inſtitution is good with-
out any after-Act, yet the Ordinary is wont to make Letters Teſtimo- Letterstelli
nial thereof; but what Seal the Ordinary doth make uſe of in that monial.
Cafe is not material. Hill. 9 Car. Cort v. Biſhop of St. Davids. Jones
331. Owen and Prichard's Cafe. i Cro. 341.
After Inſtitution is had, Induction muſt be obtained, which is the z. Indu&ion
putting the Clerk in Poſſeſſion of the Church, and is that Act by and Poffef
.
which he is made Complete Incumbent : And therefore the Biſhop, or obtained:
other Ordinary inſtituting, doth make a Mandate to that Perſon who
hath the Right, and upon whom doth lie the Duty of inducting, there-
by requiring him to induct the inſtituted Clerk into his Benefice. 38 E.
3. 3. b. Parſons Counſellor 8, g. But ordinarily, the Archdeacon is
the Perſon to whom the Biſhop is to direct his Mandate, as being he
whò ought to induct, or give Poſſeſſion unto the Clerks inſtituted to
any Churches within his Archdeaconry. 38 E. 3. 3. b. But the Biſhop
may direct his Mandate to ſuch other Clergymen as he pleaſes to
make Induction. Parſons Counſellor 8. And by Preſcription, or Com- Preſcription:
poſition, others as well as Archdeacons may make Inductions ; for by
Preſcription, the Dean and Chapter of Litchfield do make Induction,
and fo do the Dean and Chapter of St. Paul's
. 11 H. 4. 2. And if
Induction be made by the Biſhop, when it doth appertain to the Dean
and Chapter by Preſcription, the Induction is ſaid to be void. 11 H. 4.
9. but the contrary is held. Fitz. Tit. Quare Impedit 162. that
in ſuch it is only voidable, and ſo reſolved. Hill. 36, 37 Car: 3.
Ç. B. in the Caſe of Wrighton v. Brown. 3 Levinz 211. See Ho-
bart 15. And it is ſaid to be granted, that where a Dean and Peculiar Ju-
Chapter have uſed to make Induction to a Prebend, upon Preſentation
by the Biſhop, or others ; yet if the Biſhop doth induct the Prebend,
it is good at the Common Law, for that he is Officer; and Ordinary
immediate to the Court, and the Court shall not take Conulance of
the peculiar Juriſdiction. 11 H. 4. 7. Preſeniation al Egliſe 13. It
If by thë
is ſaid, that an Induction made by the Patron is void. 11 H. 4. 10.
Parlons Counſellor 8. But this, I ſuppoſe, is to be underſtood, when
it is done of his own Authority, without fpecial Privilege: For I doubt
not, but that a Biſhop may give Induction as well as Inſtitution to a
I i
Benefice
rifdi&tion.
Patron
ܪ݂
Esco
tion and
Sheriff.
give
156 The Clergy-Man's Law: Or, Chap. XV.
7:iducion, Benefice of his own Gift, where the Right of Induction to a Benefice
within his own Dioceſe is in him; or however, that the Archdeacon
may induct to a Benefice within his Archdeaconry, although he be Pa-
tron thereof; nevertheleſs, the Rule is Modus & Conventio vincunt le-
gem; and therefore, though De Jure Communi, neither Biſhop, nor
Archdeacon, may induct a Clerk to their Benefices, of which they are
By Preferip- Patrons, yet by Prefcription, or Compoſition, their Induction in ſuch
Compoſition.
Cafe muſt be good. And accordingly, though the Biſhop of Chiche-
Ster doth admit the Dean of the exempt Juriſdiction of Battel within
that Dioceſe, and doth commit to him the Cure, and Juriſdiction of
that Church, yet the Patron thereof is to inſtitute, and induct the
Dean, and the Patrons accordingly have given the Deans Inſtitution
and Induction for ſome Hundreds of years, and without Queſtion
ſuch Inſtitution and Induction is good; but this Deanery was originally
given to the Incumbent as a Donative only by the Patron, and the Bi-
ſhop admits or approves of the Patron's Preſentce, and commits to him
the Cure and Juriſdiction by Compoſition only.
When by the If the King doth grant one of his free Chapels, the Grantee ſhall
be put in Poſſeſſion by the Sheriff of the County, and
not by the Ordi-
nary of the Place. 14 H. 4. 11. b. And in fome Places a Prebend
shall have Poſſeſſion without Induction, as at Weſtminſter, where the
King makes Collation by his Letters Patents, and thereupon the Party
enters upon the Prebend without other Induction, and good, and in
ſome Places, the Biſhop makes the Induction, in ſome places others
make it, and the Uſage generally ſhall hold Place. F H. 4. 7. Pre-
Archdeacon's ſentation al Egliſe 13. For the moſt Part, the Archdeacon doth not
duction of the Clerk ;, which if it be made Univerfas a fingulis
Re&toribus, Vicariis, Clericis & literatis infra Archidiaconatum meumi
ubicunque conſtitutis, and a Miniſter, or Preacher, who is not reſident
within that Archdeaconry, dotli upon ſuch Mandate make the In-
duction, the Induction is good; and the Opinion of four Doctors of
Law was ſhewed to the Court accordingly. Trin. 7 Jac. Chriſtopher
Dean's Cafe. Noy 134.
Though by
By Admiſſion and Inſtitution alone, the Church is full. againſt all
Induction the Perſons but the King ; yea, and againſt the King too, (as 'tis ſaid by
ſome Books) if he claim from.a common Perſon, or that the Right of
preſenting to the Church be not truly in him. 13 Jac. Hitching and Glo-
ver's Cafe. Roll's i Rep. 191, and 227. and thereby the Clerk hath
Authority, and is obliged to attend the Cure of Souls belonging there-
to. 22 H. 6. 27. 44 E. 3. 3. 11 H. 4. 9. 33 H. 6. 13. 38 E. 3. 4.
33 H. 6. 24. 21 E. 4. 34. b. 13 Jac. Hitching and Glover. i Roll's Rep.
227. Hill. 14 and 15. Jac. Hutching v. Glover, 2 Cro. 463. Mich. is
Fac. Rone's Cafe. Popham 133. Mich. 19 and 20 Eliz. Dyer 360. 4
Eliz. Dyer 217. 62. 6 Co. 44. 49. Boſwell's Caſc. 4 Co. 79. b. 7 Co.
26. Dav. 82.6. Alſo, he that is inſtituted, may enter into the Glebe,
and take the 'Tythes before Induction, and hath Right to have them
againſt any Stranger. by Coke in Hitching and Glover's Cafe. Paſch.
13 Fac. Roll's i Rop. 227. And yet before Induction, he hath not,
nor is feiſed of the T'emporalities of the Church, fo that he may grant
or fuc for any of them. 22 H. 6. 27. 38. E. 3. 4. Trin. 20 Eliz. Hare
v. Bickly', Ploeden 528. But after Induction is had, the Church is
full as well againſt the King, as againſt any other perſon. Hill. 11 Fac.
Needler v. Iinton and Needler. 1. Brozenlow and Gouldsborough 163.
Mandare.
.
Church is
complcat
and full.
38 E.
Chap. XV. The Complete Incumbent.
157
Soc
4, Egoco
,
38 E. 3. 4. 13 Jac. Hitching and Glover's Cafe. 1 Roll's Rep: 227. Indution, ,
4 Eliz. Dyer 217. 33 H. 6. 24. 6 Co. 49. b. 7 Co. 26.
And the Temporalitics, as 'Tythes, Glebe, and Oblations, are actu-
ally inveſted in him, as is ſhewed elſewhere.
Tho' the Clerk be ſaid to be Incumbent to all Purpoſes, by due Ad- Yet ſome
miſſion, Inſtitution, and Induction ; yet for the perfecting, or at leaſt other Things
continuing his Title, other Things remain to be afterwards punctually wards be
performed by him at his Peril; for it hath been enacted, 13 and 14 pun&ually
Car. 2. That every perſon that ſhall bereafter be preſented or col. Batorz and
lated, o2 put into any Ecclefiaftical Benefice or promotion within this 14 Car. 2. c.
Realm of England, Dominion of Wales, op Town of Berwick upon 4. Sect. 2, 3,
Tweed, thall in the Church, Chapel, or Place of publick tuorlip,
belonging to his Caid Benefice, oi Promotion, within two Donths
nert after that he hall be in the actual Pollefion af the ſaid Eccleli-
attical Benefice, or Promotion, without ſome lawful Impeditfent to
be allowed, and approved by the Didinary of the Place, hinder, and
that within one month after fuch Impediment removed, upon ſome
Lold's Day, openly, publickly, and folemnly read the Morning and He muſt read
Evening Players appointed to be read by and according to the ſaid and Evening
Book of Common Prayer, at the Times thereby appointed, and af- Prayers.
ter fuch Reading theçeof, thall openly, and publickly, befože the Con=
gregetion there aſſembled, declare his unfeigned Atent, and Conſent,
unto all Things therein contained, and prefcribed, according to this
form of Words, and no other : I A. B. do here declare my un-
feigned Afent, and Conſent, to all' and every thing contained, and pre-
Scribed in, and by the Book entituled, The Book of Commori Prayer,
and Adminiſtration of the Sacraments, and other Rites and Ceremo-
nies of the Church, according to the Úſe of the Church of England;
be ſung or ſaid in Churches; and the Forn, or Manner of Making,
Ordaining, and Conſecrating of Biſhops, Prieſts, and Deacons.
Alſo, every Parſon, and Vicar, muſt publickly and openly read the Muſt read his
aforeſaid Certificate of his declaring, that he will conform to the Li- Certificate of
conforming
turgy of the Church of England, as it is now by Law eſtabliſhed, Eyc.
mentioned before, f. 270, 271, together with the Declaration, or Ac-
knowledgment it felf, concerning which the Certificate is made of his
fubfcribing thereto, upon fome Lord's Day within three Months then
next following, in his Pariſh Church where he is to officiate, in the
Preſence of the Congregation here aſſembled, in the Time of Divine
Service. Stat. 14 Car. 2. 4.
And note, That although the aforeſaid Certificate to be had under And alſo to
the Hand and Seal of the Biſhop, ſhould contain the very Words of read again
the Declaration, or Acknowledgment, to be read together with its tion apart.
yet it may be a Queſtion, Whether by only reading ſuch Certificate,
which doth contain the Declaration as a Part thereof, be all that the
Statute of 14 Car. 2. 4. doth require in this Caſe ? Or, Whether af-
ter the Certificate is read, that doth contain the Declaration, or Ac-
knowledgment, and ſo is read with it, the Parfon, or Vicar, be not
alſo obliged again to read the Declaration, or Acknowledgment apart;
thereby making a Declaration of the Contents thereof at that Time
And if the Deſign of the Act be, that the Parſon, or Vicar, ſhould
only inform the People, what he had ſubfcribed before the Biſhop,
then it may be ſufficient to read it only as a Part of the Certificate;
but
:.
the Declara-
158
The Clergy-Man's Law: Or, Chap. XV.
Sent cherc-
123.
679.
Hob. 168.
39 articles. but if it be the Mcaning of that Law, as I conceive it is, that he
Tould make a Verbal Declaration, or Acknowledgment, in the Pre-
fence of the People of that which he hath ſubſcribed before the Bi-
Shop, (as in the Caſe of the Thirty-Nine Articles) to read the Form
of the Declaration in the Certificate as a Part thereof, is no making
of any Verbal Declaration ; and therefore, that it ought to be read
again alone, if that be the Meaning of the Statute; however, it is
nioſt fafe fo to do.
Stat. 13 El.
And it is alſo enacted, by 13 Eliz. c. 12. That every perſon here.
6. 12. Sed. 1. after to be admitted to a Benefice with Cure, except that within twa
To read pub- months after his Induâion, be doth publickly read the Thirty Nine
Articles of articles of Religion, agreed upon by the Convocation, Anno Domini
Religion 1592, in the ſame Church where he hall have Cure, in the Time of
ration of his Common Prayer there, with Declaration of his unfeigned atent
unfeigned Af- thertto, ſhall be upon Cuch Default, ipfo facto, deprived. The two
Months herein mentioncd are to be accounted by Twenty-Eight Days
unto.
Sce 4 Inft.
to the Month, therefore one inducted the 5th of September, read the
Articles the sth of November. This was held not to be fufficient
Cro. E:2:52reading within two Months according to this Statute. Paſch. 15 Car.
2. B. R. Brown v. Spence. I Lev. Rep. 101. And this Declara-
tion of unfeigned Affent, muſt be abſolute; for if he ſhould add, ſo
far forth as they are agreeable to the Word of God, or the like, his
Declaration of Aſſent is not what the Law doth require. Mich. 32 and
34 Eliz. Smith v. Clerke. 3 Cro. 252. 4 Inft. 324. In the Caſe of
Brown v. Spence. Pafch. 15 Car. 2. B. R. i Keb. 502. it was held
per Cur. that the Reading the Thirty-Nine Articles in the Church
Porch, was ſufficient (the Divine Service being read there alſo) by rea-
ſon of the Denial of the Key of the Church. But it is made a Quære,
Whether Reading the ſaid Thirty-Nine Articles at a reputative Hamlet
Church, belonging to the principal Church being kept ſhut, that the
Clerk cannot enter thereinto, be a ſufficient Reading to ſatisfy the Sta-
tute;' and as the Cafe is reported. I Lev. Rep. 101. it may be held,
that it was ſufficient Reading.
And note that it is ſaid, That the aforeſaid Certificate, together
with the Declaration, or Acknowledgment, and alſo the Thirty-Nine
Prayer.
Articles, ſhall be read, and the Aſſent thereto given, in Time of
Common Prayer; and that therefore theſe are not to be neglected, un-
til Divine Service, or Common Prayer is ended.
Dier 377.
6 Co. 29.
At what
Place.
In Time of
Common-
The Articles of Religion to be ſubſcribed before Admiſſion, and to
be read, cc. in Time of Divine Service, are as followeth :
1. Of Faith in the Holy Trinity.
The 39 Ar-
ticles.
T
Here is but One living and true God Everlaſting ; without Body,
Parts, or Paſſions ; of infinite Power, Wiſdom, and Goodneſs;
the Maker and Preſerver of all Things, both viſible and inviſible
.
And in Unity of this Godhead there be Three Perſons, of One Sub-
ſtance, Power, and Eternity' ; the Father, the Son, and the Hsly
Gl:oft.
2
II. Of
Chap. XV. The Complete Incumbent.
159
39 Articles.
II. Of the Word or Son of God, which was made very Man.
HE Son, which is the Word of the Father, begotten from ever-
laſting of the Father, the very and eternal God of one Subſtance
with the Father, took Man's Nature in the Womb of the bleded Vir-
gin, of her Subſtance : So that the Two whole and perfcet Naturès,
that is to ſay, the Godhead and Manhood, were joined together in one
Perſon, never to be divided, whereof is one Chriſt, very God and very
Man, who truly ſuffered, was crucified, dead and buried, to reconcile
his Father to us, and to be a Sacrifice not only for original Guilt, but
alſo for actual Sins of Men.
III. Of the going down of Chriſt into Hell.
S Chriſt died for us, and was buried ; ſo alſo is it to be believed,
A that he
that he went down into Hell.
IV. Of the Refurrection of Chriſt.
fo
CHE
Hriſt did truly riſe again from Death, and took again his Body',
with Fleſh, Bones, and all Things appertaining to the Perfec-
tion of Mari's Nature, wherewith he aſcended into Heaven, and there
ſitteth, until he return to judge all Men at the laſt Day.
V. Of the Holy Ghoſt.
HE Holy Ghoſt proceeding from the Father and the Son, is of
one Subſtance, Majeſty, and Glory with the Father and the Son,
very and eternal Gód.
T
VI. Of the Sufficiency of the Holy Scriptures for Salvation.
Oly Scripture containeth all Things neceſſary to Salvation: So
that whatſoever is not read therein, zor may be proved thereby,
is not to be required of any Man, that it ſhould be believed as an Article of
the Faith, or be thoright requiſite or neceſary to Salvation. In the Name of
the Holy Scriptures, we do underſtand thoſe Canonical Books of the Old
and New Teſtament, of whoſe Authority was never any Doubt in the Church.
Of the Names and Number of the Canonical Books.
G
Eneſis.
J Exodus.
Leviticus.
Numbers.
Deuteronomy.
Joſhua.
Judges.
Ruth.
The I. Book of Samuel.
The II. Book of Samuel.
The I. Book of Kings.
The II. Book of Kings.
The I. Book of Chronicles.
The II. Book of Chronicles.
'The I. Book of Eſdras.
The II. Book of Eſdras.
The Book of Eſther.
The Book of Job.
The Pſalms.
The Proverbs.
Eccleſiaſtes.
The Song of Solomon.
The four greater Prophets.
The twelve leſſer Prophets.
And
160
The Clergy-Man's Law: Or, Chap. XV. .
.وع
39 Articles.
And the other Books (as Hierome ſaith) the Church doth read for
Example of Life, and Inſtruction of Manners; but yet doth it not
apply them to eſtabliſh any Doctrine ; ſuch are theſe folloeving :
Baruch the Prophet.
T The IV. Book of Efdras
. The Song of the Three Children.
'The Book of Tobias.
The Story of Suſanna.
'The Book of Judith.
Of Bell and the Dragon.
The reſt of the Book of Eſther. 'The Prayer of Manaſſes.
The Book of Wiſdom.
The I. Book of Maccabees.
Jeſus the Son of Sirach.
The II. Book of Maccabees.
All the Books of the New Teſtament, as they are commonly received,
we do receive and account them Canonical.
1
VII. Of the Old Teſtament.
T
HE Old Teſtament is not contrary to the New: For both in
the Old and New Teſtament, everlaſting Life is offered to Man-
kind by Chriſt, who is the only Mediator between GOD and Man,
being both GOD and Man. Wherefore they are not to be heard,
which feign that the old Fathers did look only for tranfitory Promiſes.
Although the Law given from God by Mofes, as touching Cereulonies
and Rites, do not bind Chriſtian Men, nor the civil Precepts thereof
ought of Neceſſity to be received in any Commonwealth : Yet notwith-
ſtanding, no Chriſtian Man whatſoever is free from the Obedience of
the Commandments which are called Moral.
VIII. Of the Three Creeds.
I.
H E Three Creeds, Nice Creed, Athanaſius Creed, and that
which is commonly called the Apoftles Creed, ought throughly to be
received and believed · For they may be proved by moſt certain War
rants of the Holy Scripture.
T.
IX. Of Original Birth or Sin.
O
Riginal Sin ftandetbe not in the following of Adam (as the Pela-
gians do vainly talk), but it is the Fault and Corruption of the
Nature of every Man, that naturally is ingendred of the Of-Spring of
Adam, whereby Man is very far gone from original Righteouſneſs
,
and is of his own Nature inclin'd to Evil, ſo that the Flesh lufteth
always contrary to the Spirit ; and therefore in every Perfon born
into this World, it deſerveth God's Wrath and Damnation. And this
Infe&tion of Nature doth remain ; yea, in thein that are regenerated,
whereby the Luft of the Fleſh, called in Greek, Definice supròs, which
fome do expound the Wiſdom, ſome Senſuality, Some the Affection, ſome
the Defire of the Flesh, is not ſubje&t to the Law of God. And al-
though there is no Condemnation for them that believe and are bap-
tized, yet the Apoſtle doth confeſs, That Concupiſence and Luft hath
of it ſelf the Nature of Sin.
:
I
X. Of
Chap. XV. The Complete Incumbent.
161
39 artic!ef,
X. Of Free-Will.
T
H E Condition of Man after the Fall of Adam, is ſuch, That
he cannot turn and prepare himſelf by his own natural Strength
and good Works, to Faith and Calling upon God: Wberefore we have
no Power to do good Works pleaſant and acceptable to God, without
the Grace of God by Chriſt preventing us, that we may have a good
Will, and working with us when we have that good Will.
XI. Of the Juſtification of Man.
i
W
E are accounted righteous before God, only for the Merit of
our Lord and Saviour Jeſus Chriſt by Faith, and not for
our own Works, or Deſervings. Wherefore, that we are juſtified by
Faith only, is a moſt wholfone DcEtrine, and very full of Comfort, as
more largely is expreßled in the Homily of Juſtification.
XII. Of Good Works.
A
Lbeit that good Works, which are the Fruits of Faith, and fol-
low after Zuftification, cannot put away our Sins, and endure
tbe Severity of God's Judgment; get are they pleaſing and acceptable
to God in Chrift, and do Spring out neceſarily of a true and lively
Faith, inſomuch that by thein a lively Faith may be as evidently known,
as a Tree diſcerned by the Fruit.
XIII. Of Works before Juſtification.
Orks done before the Grace of Chriſt, and the Inſpiration of
his Spirit, are not pleaſant to God, foraſmuch as they Spring
not of Faith in Jeſus Chriſt, neither do they make Men meet to receive
Grace, or (as the School Authors ſay) deſerve Grace of Congruity : Yea,
rather for that they are not done as God hath willed and commanded
them to be done, we doubt not but they have the Nature of Sin.
WOMA
XIV. Of Works of Supererogation.
Voluntary Works
Oluntary Works beſides, over and above God's Commandments,
which they call Works of Supererogation, cannot be taught with-
out Arrogancy and Impiety ; for by them Men do declare, That they
do not only render unto God as much as they are bound to do, but that
they do more for his Sake, than of bounden Duty is required : Whereas
Chriſt ſaith plainly, When ye have done all that are commanded to
3'011, say, We are unprofitable Servants.
>
XV. Of Chriſt alone without Sin.
CH
Hrift, in the Truth of our Nature, was made like unto us in
all Things, Sin only except) from which he was clearly void,
both in his Fleſh, and in Spirit. He came to be a Laub without
Spot, who by Sacrifice of himſelf once made, Bould take away the Sins
of the World: And Sin (as St. John ſaith) was not in him. But all
we the reft (although baptized, and born again in Chrift) g'et offend
K k
112
162
The Clergy-Man's Law: Or, Chap. XV.
39 Articles, in many Things ; and if we ſay we have no Sin, we deceive our sekes;
and the Truth is not in us.
XVI. Of Sin after Baptifm.
NOT coery deadly Sin
OT every deadly Sin willingly committed after Baptiſm, is Sin
againſt the Holy Ghoft, and unpardonable. Wherefore the Grant
of Repentance is not to be denied to ſuch as fall into Sin after Baptiſm.
After we have received the Holy Ghoſt, we may depart from Grace gi-
ven, and fall into Sin, and by the Grace of God (we may) ariſe again,
and amend our Lives. And therefore they are to be condemned, which
ſay they can no more fin as long as they live here, to deny the Place of
Forgiveneſs to fuch as truly ropent.
XVII. Of Predeſtination and Election.
PRE
Redeſtination to Life, is the Everlaſting Purpoſe of God, whereby
(before the Foundations of the World were laid) he hath conſtantly
decreed by his Counſel, ſecret to us, to deliver from Curſe and Damna-
tion, thoſe whom he hath cholen in Chriſt out of Mankind, and to bring
them by Chriſt to everlaſting Salvation, as Veffets made to Honour.
Wherefore they which be endued with to excellent a Benefit of God, be
called according to God's Purpoſe by, bis Spirit working in due Seaſon:
They throʻ Grace obey the Calling : They be juſtified freely : They be made
Sons of God by Adoption : They be made like the Image of bis only begot-
ten Son Jeſus Chriſt : They walk religionfly in good Works, and at length
by God's Mercy they attain to everlaſting Felicity.
As the Godly Confideration of Predeſtination and our Election in
Chriſt, is full of ſweet, pleaſant, and unſpeakable Comfort to Godly
Perfonis, and forch as feel in themſelves the working of the Spirit of
Chrift
, irortifying the Works of the Flejh, and their
earthly Members,
and
drawing up their Mind to high med becwerly Things, as well be-
eduſe it doth
greatly eſtablity and confirmar their Faith of eternal Salva-
tion, to be enjoyed through Chriſt, as becauſe it doth fervently kindle
their Love forward's God: So, for curious and carnal Perfos, lacking
the Spirit of Chriſt, to have continually before their Eyes the Sentence
of God's Predeſtination, is a moſt dangerous Dozirfal, whereby the
Devil doth thruſt them either into Deſperation, or into Wretchleſneſs of
moſt unclean Living, 980 bef's perilous than Deſperatioil
.
Furthermore, we muſt receive God's Promiſes in ſuch-wife as they
be generally ſet forth to us in Holy Scripture : And in our Doings, that
Will of God is to be followed, which we have exprefly declared imto us
in the Word of God.
:
XVIII. Of obtaining eternal Salvation only by the Name of Chrift.
THE
Hey alſo are to be bad accurſed, that prefrıme to ſay, That every
Man Mall be ſaved by the Law or Sect which he profeſſeth, ſo
that he be diligent to frame his Life according to that Lan, and the
Light of Nature : For Holy Scripture dorp ſet out unto us only the Name
of Jeſus Chrift, whereby. Men muyt be ſaved.
3
XIX. Of
Chap. XV. The Complete Incumbent :
163
39 Urticles
XIX. Of the Church:
T.
H E viſible Church of Chriſt is a Congregation of faithful Men, in
the which the pure Word of God is preached, and the Sacra-
ments be duly miniſtred, according to Chriſt's Ordinancè, in all thoſe
Things that of Necellity are requiſite to the ſame.
As the Church of Jeruſalem; Alexandria, and Antioch, have erred;
So alſo the Church of Rome hath erred; not only in their Living and
Manner of Ceremonies, but alſo in Matters of Faith.
XX. Of the Authority of the Church
H E Church hath Power to decree Rites or Ceremonies, and Au:
thority in Controverſies of Faith: And yet it is not lawful for the
Church to ordaint any Thing that is contrary to God's Word written; nei-
ther may it fo expound orze
Place of Scriptures that it be repugnant to
another. Wherefore although the Church be a Witneſs and a Keeper of
the Holy Writ; yet as iť oright not to decree any Thing againſt the
fame, ſo beſides the ſame ought it not to enforce any Thing to be believed
for neceſity of Salvation.
XXI. Of the Authority of General Councils.
G
Eneral Councils may not be gathered together without the Command-
I ment and Will of Princes. And when they be gathered together,
(forafmuch as they be an Aſſembly of Men, whereof all be not governed
with the Spirit and Word of God) they may err, and ſometimes have,
erred, even in Things pertaining unto God. Wherefore Things ordained
by them as neceſſary to Salvation; have neither Strength nor Authority, un-
teſs it may be declared that they be taken out of Holy Scripture.
:
XXII. Of Purgatory:
HÉ Řomiſh Doctrine concerning Purgatory, Pardons, Worſhipping
and Adoration, as well of Images, as of Relicks, and alſo Ingoca-
tion of Saints, is a fond Thing vainly invented, and grounded upsr 12ą
Warranty of Scripture, but rather repugnant to the Word of God:
XXIII. Of Miniſtring in the Congregation:
I?
T is not lazoful for any Man to take upon him the Office of publick
Preaching; or Miniſtring the Sacraments in the Congregation, before
he be lazofully called, and ſent to execute the ſame. And thoſe we ought
to judge lawfıılly called and ſent; which be choſen and called to this Work
by Men who have publick Authority given unto them in the Congrégation;
to call and ſend Miniſters into the Lord's Vineyard.
XXIV. Of ſpeaking in the Congregation in ſuch a Tongue as the Peo-
ple unherſtandeth:
T is a Thing plainly repugnant to the Word of God, and the Cuſtom
of the Primitive Church, to have publick Prayer in the Church;
to miniſter the Sacraments in a Tongue riot inderſtood of the Peo-
ple:
K k z
XXy;
I
164
The Clergy-Man's Law: Or, Chap. XV.
39 Articles.
XXY. Of the Sacraments.
Acraments ordained of Chiriſt, be not only Badges or Tokeris of Chris
ftian Men's Profeſſion but rather they be certain ſure Witneles,
and effe&tual Signs of Grace, and God's good Will towards us, bg the
which he doth work inviſibly in us, and doth not only quicken, but alſo
ſtrengthen and confirın our Faith in him.
There are two Sacraments ordained of Chriſt our Lord in the Goſpel;
that is to ſay, Baptiſm, and the Supper of the Lord.
Thoſe five commonly called Sacraments, that is to ſay, Confirmation
Penance, Orders, Matrimony; and Extreme Unetion, are not to be,
counted for Sacraments of the Goſpel, being ſuch as have grown, partly
of the corrupt following of the Apoſtles, partly are States of Life allow-
ed by the Scriptures : But yet have not like Nature of Sacraments with
Baptiſm and the Lord's Supper, for that they have not any viſible Sign
or Ceremony ordained of God.
The Sacraments were not ordained of Chriſt to be gazed upon, or to
be carried about, but that we ſhould duly uſe them. And in ſuch only
as worthily receive the ſame, they have a wholfome Efett or Operati-
on: But they that receive them unworthily, purchaſe to themſelves
Damnation, as St. Paul ſaith.
r -
XXVI. Of the Unworthinefs of the Miniſters, which hinder not the Ef-
fects of the Sacraments.
i
A
Lthough in the viſible Church the Evil be ever mingled with the
Good, and ſometime the Evil have chief Authority in the Mini-
ſtration of the Word and Sacraments; yet foraſmuch as they do not the
ſame in their own Name; but in Chriſt's, and do miniſter by his Commiſ-
fion and Authority, we may uſe their Miniſtry, both in hearing the
Word of God, and in the receiving of the Sacraments. Neither is the
Efteet of Chriſt's Ordinance taken away by their Wickedneſs, nor the
Grace of God's Gifts diminiſhed from ſuch, as by Faith, and rightly do
receive the Sacraments miniſtred unto them, which he effe&tual, becauſe
of Chriſt's Inſtitution and Promiſe, although they be ini niſtred by evil
Men.
Nevertheleſs, it appertaineth to the Diſcipline of the Church, that
Enquiry is made of evil Miniſters, and that they be accuſed by thoſe
that have knowledge of their Offences: And finally, being found guilty,
by juft Judgment be depoſed.
XXVII. Of Baptiſm.
D Aptiſm is not only à Sign of Profeſſion, and Mark of Difference,
B
whereby Chriſtian Men are diſcerned from others that be not Chri-
ſtened; but it is alſo a sign of Regeneration or new Birth, whereby, as
by an Inſtrument, they that receive Baptiſm rightly, are grafted into
the Church : The Promiſes of the Forgiveneſs of sin, and of our Adopti-
on to be the Sons of God, by the Holy Ghoſt, are viſibly and ſealed :
Faith is confirmed, and Grace increaſed by Vertue of Prayer unto God.
The Baptiſm of young Children is in any wife to be retained in the
Church, as moſt agreeable with the Inſtitution of Chriſt.
I
XXVIII. OF
.
Chap. XV.
165
The Complete Incumbent.
29 Articles
XXVIII. Of the Lord's Supper.
i
HE Supper of the Lord is not only a Sign of the Love that Chri-
ftians ought to bave among themſelves one bio another but rather
it is à Sacrament of our Redemption by Chriſt's Death: Infomuch, that
to ſuch as rightly, zorthily, and with Faith receive the ſame, the
Bread which we break, is partaking of the Body of Chriſt i and like-
wiſe the Cup of Blefling, is a partaking of the Blood of Chriſt.
Tranſubſtantiation (or the Change of the Subſtance of Bread and Wine)
in the Supper of the Lord, cannot be proved by Holy Writ: But it is re-
pugnant to the plain Words of Scripture, overthroweth the Nature of a
Sacrament, and hath given Occaſion to many Superſtitions.
The Body of Chriſt is given, taken, and eaten in the Supper only af
ter an Heavenly and Spiritual Manner. And the Mean whereby the
Body of Chriſt is received and eaten in the Supper, is Faith.
The Sacrament of the Lord's Supper was not by Chriff's Ordinance
referved, carried about, lifted up, or worſhipped.
XXIX. Of the wicked which eat not the Body of Chriſt in the Uſe of the
Lord's Supper.
HE Wicked, and ſuch as be void of a lively Faith, altho they do
carnally and viſibly preſs with their Teeth (as St. Auguſtine faith)
the Sacrament of the Body and Blood of Cbrift ; yet in no wife are they
Partakers of Chriſt, but rather to their Condemnation do eat and drink
the Sign or Sacrament of ſo great a Thing.
XXX. Of both Kinds.
:
HE Cup of the Lord is not to be denied to the Lay People : For
both the Parts of the Lord's Sacrament, by Chriſt Ordinance
and. Commandment, ought to be miniſtred to all Chriſtian Men a-
like.
XXXI. Of the one Oblation of Chriſt finiſhed upon the Croſs.
TH
HE Offering of Chriſt once made, is that perfect Redemption, Pro-
pitiation, and Satisfaction for all the Sins of the zohole World,
both original and actual, and there is none other Satisfaction for Sin, but
that alone. Wherefore the Sacrifices of Maſſes, in the which it was
commonly ſaid, that the Prieſt did offer Chriſt for the Quick and the
Dead, to have Remiſſion of Pain or Guilt, were blafphemous Fables,
and dangerous Deceits.
XXXII. Of the Marriage of Prieſts.
Iſhops, Prieſts and Deacons, are not commanded by God's Laz), ei-
ther to vozw the Eſtate of ſingle Life, or to abſtain from Marriage:
Therefore it is lawful for them, as for all other Chriſtian Men, to mar-
ry at their own Diſcretion, as they Sall judge the ſame to ſerve better
to Godlineſs.
XXXIII. Of
166
The Clergy-Man's Law: Or, Chap. XV.
39 articleg.
XXXIII. Of Excommunicate Perſons, how they are to be avoided.
HAT Perfou which by open Denunciation of the Church, is
T rightly cut off from the Unity of the Church, and excommunicated,
ought to be taken of the whole Multitude of the Faithful, as an Heathen
and Publican, until he be openly reconciled by Penance, and received
into the Church by a Judge that hath Authority thereuntos
XXXIV. Of the Traditions of the Church.
T is neceſſary that Traditions and Ceremonies be in all Places one;
or utterly like; for at all Times they have been divers, and may be
changed according to the Diverſity of Countries, Times, and Men's Man-
ners, so that nothing be ordained againſt God's Word. Whoſoever thro?
his private Judgment, willingly and purpoſely doth openly break the
Traditions and Ceremonies of the Church, which be not repugnant to the
Word of God, and be ordained and approved by common Authority, ought
to be rebuked openly, (that other may fear to do the like) as he that of-
fendeth againſt the common Order of the Church, and burteth the Áu-
thority of the Magiſtrate, and woundeth the Conſciences of the weak
Brethren.
Every particular or national Church, hath Authority to ordain, change,
and aboliſh Ceremonies or Rites of the Church, ordained only by Man's
Authority, ſo that all Things be done to Edifying.
XXXV. Of Homilies.
/
T
HE Second Book of Homilies, the ſeveral Titles whereof we have
under this
Erine, and neceſſary for theſe Times, as doth the former Book of Homi-
lies, which were ſet forth in the Time of Edward the Sixth ; and there-
fore we judge them to be read in Churches by the Miniſters, diligently
and diſtinctly, that they may be underſtood of the People.
Of the Names of the Homilies.
"OF
1
F the right Uſe of the Church.
2. Againſt Peril of Idolatry.
3. Of repairing and keeping clean of Churches.
4. Of good Works, firſt of Faſting.
5. Againſt Gluttony and Drunkenneſs.
6. Againſt Exceſs of Apparel.
7. Of Prayer.
8. Of the Place and Time of Prayer.
9. That Common Prayers and Sacraments ought to be miniſtred in a
known Tongue.
10. Of the Reverend Eſtimation of God's Word.
11. Of Alms doing.
12. Of the Nativity of Chriſt.
13. Of the Paſſion of Chriſt.
14. Of the Reſurrection of Chriſt.
15. Of the worthy Receiving of the Sacrament of the Body and Blood
of Chriſt.
I
16. Of
Chap. XV.
167
The Complete Incumbent.
39 Articles
16. Of the Gifts of the Holy Ghoſt.
17. For the Rogation Days.
18. Of the State of Matrimony.
19. Of Repentance.
20. Againſt Idleneſs.
21. Againſt Rebellion,
XXXVI. af Conſecration of Biſhops and Miniſters:
T
HE Book of Conſecration of Archbiſhops and Biſhops, and Order-
ing of Prieſts and Deacons, lately ſet forth in the Time of Edward
the Sixth, and confirmed at the ſame Time by Authority of Parliament,
doth contain all Things neceſſary to fuch Confecration and Ordering : Nei
ther hath it any Thing that of it ſelf is Superſtitious and Ungodly. And
therefore, whoſoever are conſecrated, or ordered according to the Rites of
that Book, ſince the ſecond Year of the aforeſaid King Edward, uunto this
Time, or herefore ſhall be confecrated or ordered according to the ſame
Rites
, we decree all ſuch to be rightly, orderly; and lawfully confecrated
and ordered:
XXXVII. Of the Civil Magiſtrates.
T
HE Queen's Majeſty hath the chief Power in this Realm of Eng.
land, and other ber Dominions, unto whom the chief Government
of all Eſtates of this Realm, whether they be Ecclefiaftical or Civil, in
all Cauſes doth appertain, and is not, nor ought to be ſubject to any fo-
reign Furiſdiction.
Where we attribute to the Queen's Majeſty the chief Government, by
which Titles we underſtand the Minds of ſome ſanderous Folks to be of
fended; we give not to our Princes the miniſtring either of God's Word,
or of the Sacraments, the which Thing the Injunctions alſo lately ſet forth
by Elizabeth our Queen, do moſt plainly teſtify; but that only Prerogative
which we ſee to have been given always to all godly Princes in boly Scrip-
tures by God himfelf, that is, that they ſhoulă rúle all Eſtates and De-
grees committed to their Charge by God, whether they be Ecclefiaftical
or Temporal, and reftain with the Civil Sword the ſtubborn and evil
Doers.
The Biſhop of Rome hath no Juriſdiftion in this Realm of Enga
land.
The Lazos of the Realm may puniſh Chriſtian Men with Death for
heinous and grievous Offences.
It is lawful for Chriſtian Men, at the Coromandment of the Magiftrate;
to wear Weapons, and ſerve in the Wors.
| XXXVIII. Of Chriſtian Mens Goods, which are not common.
TH
HE Riches and Goods of Chriſtians are not common, as touching
the Right, Title and Poffefion of the ſame, as certain Anabaptifts
do falNy boajt
. Notwithſtanding, every Man ought of fuch Things as he
polleſeth, liberally to give Aims to the Poor; according te bis Ability.
XXXIX. Of
168
The Clergy-Man's Law: Or, Chap. XV.
Indudion,
r.
XXXIX. Of a Chriſtian Man's Oath.
A
S we confeſs, that vain and raſh Swearing is forbidden Chriſtian
Men by our Lord Jeſus Chriſt
, and James his Apoftle: So zve
judge that Chriſtian Religion doth not prohibit, but that a Man may
ſwear when the Magiſtrate requireth, in a Cauſe of Faith and Charity,
ſo it be done according to the Prophets teaching, in Fuſtice, Judgment
and Truth.
ducted.
ز
Things con It is convenient that the Clerk be able, upon any Occaſion, to make
venient to he Proof of his being inducted, and of the Time thereof, and alſo of his
a Clerk in- due Performance of all theſe Things to be done by him after his In-
duction ; and therefore that he have ſome intelligent Perſons, whom he
may truſt, preſent when he is inducted; and (if it may be) the fame
Perſons preſent at ſuch Time when he ſhall perform the other
Matters required by the Law to be performed in his Pariſh-Church; and
that they may be able to teſtify, that all Things are done as they
ought to be, thc Clerk may cauſe them to read with him, or to ob-
ſerve as he reads the Morning and Evening Prayers, (which he is to
rcad exactly according as they are appointed to be read on the Day he
reads by the faid Book ;) and let him alſo give them a Copy of his Cer-
tificate, under the Hand and Seal of the Biſhop, and of the Declarati-
ons which he is to read ; and alſo provide for them a Book contain-
ing the 'Thirty-nine Articles, to the end that thcy may read them with
him, or obſerve that he doth read them as he ought to do, and then
that he procure them to ſet their Hands to the Book of the Articles,
and that he read a true Copy of the Articles; for otherwiſe, if their
Teſtimony be wanted, it will be hard for them to depofe, that he read
a true Copy of the Articles, and that all Things were done according
to Law: And it is alſo adviſable, that the Clerk doth keep the faid
Book ſubſcribed, and alſo doth make a Writing to be ſubſcribed by
his Witneſes, after this or the like Form:
W
E whoſe Names are under-written, do hereby certify and de-
clare, That A. B. Rector of C. within the Dioceſe of D. was
in the Preſence of us inducted into his Church of B. C. aforeſaid, by D.
E. Rettor of F. on the Day of in this preſent Year; by V.er-
tue of certain Letters of Induction made under the Hand and Seal of
G. F. Arch-deacon of J. within the Dioceſe ciforeſaid, for that Purpoſe
directed Univerſis & ſingulis Rectoribus, &c. Alſo that the afore-
Jaid A. B. on the Day of within the ſaid Year, being a Lord's
Day, did rtad in his Pariſh Church aforeſaid, openly, publickly and
ſolemnly, the Morning and Evening Prayers appointed to be read by
and according to the Book intituled, 'The Book of Common Prayer
,
&c. at the Time thereby appointed ; and after ſuch Reading thereof, did
openly and publickly before the Congregation there aſſembled, dectare kis
unfeigned Allent and Conſent to the Uſe of all Things therein contained
and preſcribed, according to this Form, (ſetting down the Form to be
uſed" verbatim;) alſo that he did publickly and openly on the Day
and Year aforeſaid, in the Pariſh-Church aforeſaid, in the Preſence of
the Congregation there allembled, in the Time of Divine Service, reed
a Certificate, under the Hand and Seal of the Right Reverend Father
in God, A. Lord Biſhop of C. in theſe Words, (inferting the very Words
of
3
1
Chap. XV. The Complete Incumbent.
169
Sec.
Day of
of the Certificate;) which was atteſted by J. B. and after the Reading Induđion,
thereof, at the ſame Time, and in the ſame place, the Congregation be-
ing preſent, did read the Declaration, or Acknowledgment contained
in
the faid Certificate, viz. I will conform to the Liturgy of the Church of
England, as it is now by Law eſtabliſøed. And laſtly, That on the Day
and Year aforeſaid, he did read the Articles of Religion, commonly cal-
led the 39 Articles, agreed upon in Convocation in the Year 1562, in his
Pariſh-Church aforeſaid, in the Time of Common-Prayer there, and
did declare his unfeigned Alent thereto. And theſe Things we promiſe
to teſtify upon our Corporal Oaths, if at any Time we ſhall be duly called
thereto. In Witneſs hereof, we have hereunto ſet our Hands this
in the Year of our Lord, &c. See the Parſon's Counfellor
73, 74. and Johnſon's Clergy-man's Vade mecum p. 316.
Though I adviſe the Clerk fo to order his Buſineſs, as to be able to Where the
prove
all Things to be performed by him, of which the Law requires prefume the
his Performance; yet this, I ſuppoſe, is only neceſſary for him to do, Affirmative,
in cafe he ſhall be put to prove, that he did read and declare, &c. in ſhall be pro-
ſuch due Manner as the Law appoints, which in fome Cafes he ſhall ved.
be put to do; yet a Parſon fuing for Tythes in the Spiritual Court,
the Defendant pleaded, That the Parfon had not read the Thirty-nine
Articles according to the Statute ; and the Court put the Defendant to
prove this Negative ; and upon a Motion for a Prohibition, Coke and
Doderidge faid, That the Law doth preſume, That a Párfon hath
read the Articles, becauſe otherwiſe he is to loſe his Benefice; and
where the Law doth preſume the Affirmative, the Negative ſhall be
proved. Mich. 12 Jac. B. R. Monke v. Butler. Roll's 1 Rep: 83.
So in an Action for Tythes upon the Stat. 2 E. 6. the Defendant's
Counſel inſiſted, That the Plaintiff ought to prove his Admiſſion, Inſti-
tution and Induction, reading of the Articles, &c. but it was ruled by
the Judge, who tried the Cauſe at the Allizes at York, that he ſhould
not then be put to it, for thofe Things ſhall be preſumed; and if other-
Preſumption
wiſe, the Defendant is to prove it. Clayton Rop. Cafe 13. So in a of the Law.
Quare Impedit, the Plaintiff declares, That the Earl of Lincoln was
ſeiſed in the Church of B. and preſented the Defendant, who after ac-
cepted a ſecond Living, and was inſtituted thereunto, G. and it was
adjudged, that this was well enough, without ſaying he ſubſcribed the
Déclaration in the Preſence of the Biſhop, (Prater Vaughan Chief-Ju-
ſtice) Paſch. 25 Car. 2. Com. B. Earl of Lincoln and Clyfam, 3 Ke-
ble 152. But in an Eje&tione firma, for the Rectory of Amunham, it
was inſiſted on by the Counſel for the Defendant, that the Plaintiff
ought to prove his Reading, and Subſcribing the Articles, &c. within
the Time appointed by the Statute: And the Opinion of the Court ſeems
to be as one may collect from the Report of the Cafe, that the Plain-
tiff was to prove all thoſe Matters in that Action. M. 16 Car. 2. Snow
Lellee of Dr. Crawley v. Philips, i Sid. 220,
The aforeſaid Method is to be obſerved, in taking a Title to any In moſt
Benefice that is Preſentative, and fuch for the moſt part are Parfona- Caſes the
ges, and Vicarages, Archdeaconries and Prebends, though commonly thod to be
Archdeaconries and
Prebends are given by Biſhops, who do therefore uſed.
prefer to them by Collation, which is the fame Thing with Inſtitution,
ſaving that no Preſentment is made; but if an Archdeaconry or Prebend,
be in the Gift of a Lay-man, the Patron doth preſent to the Biſhop,
who doth inſtitute in like Manner as to another Benefice. Pafch. 32
LI
Eliz,
Nota
170
The Clergy-Man's Law: Or, Chap. XV.
C.
Locum in
Choro.
Archdea-
tonry or
Prebend.
C. I 2.
The ſecond
Donations, Eliz. Sale v. Biſhop of Coventry and Marcha i Anderſon 241. And
then the Dean and Chapter do induct them; that is, after ſome Cere-
monics, Place them in a Stall in the Cathedral Church, to which they
belong, whereby they are ſaid to have Locum in Choro So a Deanery
may be
be preſentable. 17. E. 3. 40. and an Hoſpital. 21 E. 3. 6. b. and
alſo a Chapel. 14 H. 3. Quare Impedit 183. ` And all thoſe that take
Titles to any of the aforeſaid Benefices, are to read and declare, as is
before directed; to wit, Parſons, Vicars, c. in their Parochial
Churches, Archdeacons and Prebendaries, in their reſpective Cathedral
Church; ſo are they to ſubſcribe, as is ſaid, before the Ordinary ; ſaving
that he who takes a Title for any Archdeaconry or Prebend, is not
thereby obliged to ſubſcribe, and read the Thirty-nine Articles, a Pre-
bendary not being a Benefice with Cure; and an Archdeaconry, altho'
it be a Benefice with Cure, yet is not ſuch a Benefice with Cure, as
ſeems to be intended by the Statute, 13 El. c. 12. that Statute intend-
ing only ſuch Benefices with Cure, as have Pariſh-Churches belong-
What Bene- ing to them : But they that accept of Archdeaconries; Prebends, or
ture intend any other Ecclefiaftical Preferments, are obliged at, or before their
ed by 13 El. Admiſſion, &c. thereto, to ſubſcribe the Declaration or Acknowledg-
ment, herein before-mentioned, (although Archdeaconries be not ex-
prefly mention'd in the Statute) by reaſon that the Perſons taking
Archdeaconries muſt be in Holy Orders, and all Perſons in Holy D?
ders taking any Ecclefiaftical Dignity 02 Poinotion, as is in the Sta-
tute expreſs’d, are requir’d to ſubſcribe the fame Declaration. See the
Stat. 14 Car. 2. C. 4. ante.
The ſecond Way or Means by which the Title to an Eccleſiaſtical
Ordinary
Benefice is to be had, is by Donation, and the Benefices ſo to be con-
Way or
Mean, is by ferred and taken, are called Donatives; and they are ſo called, becauſe
the Patron in conferring them, doth not make a Prefentment of his
Clerk to any Ordinary, to the End to have him admitted and inſtitu-
ted by him, and ſo inducted by the Archdeacon, or other Perſon;
but the Patron (though a Layman) doth by his Inſtrument in Wri-
ting immediately confer the ſame upon his Clerk. Da. 1. 46. b. and
this Conferring is (as the Biſhop's conferring) called a Collation, in
Which is as Fairchild and Gair's Cafe. Paſch. 3 Jac. Yelverton 60. the fame Caſe.
1 Brownlow, and Gouldsborough 202. But the Benefices to which Bi-
ſhops do collate, are not of the ſame Nature with theſe Donatives : For
a Benefice that is given by a Biſhop's Collation, whilſt in the Poffeffion
of a Biſhop, is preſentative when in a Lay-hand; and a Bishop's Clerk
is inducted as any other Patron's Clerk is: But theſe Donatives, in
need no Iri- whoſe Hands foever they be, are generally given only by Donation,
and the Clerk to whom the ſame is given, necds no ſuch Induction.
Given with. Hil. 41 El. Quarles v. Fairchild, 3 Cro. 653. And if a Donative be
out Limita- given without a Limitation of Eſtate, for Life, or otherwiſe, the Gift
is good, and the Granţee hath as large an Eſtate therein by ſuch
Grant, as if it had been granted to him expreſly for Life, or he had
come to it by Election, or by Inſtitution, and Induction; for a Spiritu-
al Benefice cannot be granted for Years, or at Will; for then the Free-
Abeyance. hold thereof might be always in perpetual Abeyance, which Inconveni-
ence the Law will not ſuffer. Paſch. 3 7ac. B. R. Davis f. 45, 46.
And though generally theſe Donatives be in themſelves to be had on-
ly by the Patron's Collation ; yet if the true Patron of ſuch a Dona-
tive doth once preſent to the Ordinary of the reſpective Diocefc, and
doth ſuffer Admiſſion and Inſtitution thereupon, he thereby hath made
Donation.
a Collation.
Donatives
du&tion.
tion.
it
Chap. XV. The Complete Incumbent.
171
may be of
all ſorts of
cal Preſenta
may be
ments.
it always preſentable. Paſch. 3 Jac. Fairchild v. Gair. 2 Cro.63. Co. Donativer. .
Litt. 344. a.
And hath made it alſo for ever to become a Benefice. Donatives
with Cure of Souls. Clerk, v. Heat). Mich. 21 Car. 2. B.R. 2 Ke- may become
ble 556. And this holds not only in the Caſe of common Patrons of preſentable
Donatives, but in the Caſe of the King alfo, by Latch in his Argu- But not by
ment of Cremer and Burnet's Cafe. Paſch. 1651. Stile 172. But Stranger's
the King hath many Donatives in Wales, whereunto the Parſons are Preſentation.
preſented and inſtituted by the Biſhop; as was ſaid by Sir Jeffery Pal-
mer, the King's Attorney-General, and in the ſaid Caſe of Clerk v.
Hoath, as reported, 1 Siderfin 426. But if a Stranger, who hath no
Title, doth preſent a Clerk to the Ordinary, who is inſtituted and in-
ducted, this is ſo far from making the Donative preſentable for the fu-
ture, that it doth not ſo much as intitle the Clerk to it, for 'tis meer-
ly void. Co. Litt. 344. a. Hil. 41 El. Quarles v. Fairchild, 3 Cro.
Cro. Donatives
653. Roll's Abr. 2. 342.
There is not any one particular fort of Eccleſiaſtical Preferments, Ecclefiafti-
that are peculiarly ſaid to be Donatives; for ſome of all forts
Donative, as well as Preſentative, or Elective ; for Biſhopricks were Note theſe
Donative in England after the Conqueſt
, and before the Time of King Royal Do-
John2. Roll's 2. p. 342. i Inft. 344. a. And a Deanery may: For natives ſeem
thoſe Deaneries that were tranſlated from Priories and Covents, or veſted in the
which were founded after the Diffolution of Abbies and Monaſteries, by King by Vir-
King Henry the Eighth, or other Kings of this Realm, are now Dona- Statutes that
tive, and by the King's Letters Patents the Deans are inſtalled. i Inft. gave him the
344. Dyer 273. Parſons Law, c. 2. So a Prebendary may be Dona- Abbey
Lands, Cyc.
tive, as at Windſor and Weſtminſter, in the Chapels of the King : When and there
a Prebend is void, it is ſaid, that the King ſhall make Collation of his fore do not
Clerk by a Patent, Et luy envoyera ove Čell; and by force thereof he prove any
ſhall take Poſſeſſion. 11 H. 4. g. without any Inſtitution or Induction. Right in the
Roll's Abr. 2 Part p. 356. Alſo a Benefice with Cure of Souls, may Crown to
be a Donative, as the Rectory of Briary, or Burien in Cornwall. Hil. clefiaftical
21 El. Quarles v. Fairchild, 3 Cro. 655. Paſch. 3 Fac. Fairchild v. Dignities by
Gair, 2 Cro. 63. And ſo the Church of the Tower of London, is a
Cure of Souls
, and the King's Donative. Mich. 9 Car. Fletcher and
Mackaller's Cafe. Roll's Abr. 341. Co. Lit. 344. And this alſo ap- till near the
pears by what is ſaid in the Caſe of Clerk v. Heath, 1 Siderfin 426. But
ry, Biſhop-
though a Church Parochial, having Cure of Souls, may be a Donative, ricks and
yet no meer Lay-man was capable thereof by the Common Law, but otherChurch
Dignities
à Clerk in Holy Orders, Co. Litt. 344. cited Hil
. 1 Jac. in Fairchild
and Gair's Cafe. Roll. Abr. 2. p. 341. becauſe, though he may come ferred by
in by Lay-Donation, and not by Admiſſion and Inſtitution, yet his Fun- Ele frienza
&tion is Spiritual ; and now by the Statute 14 Car. 2. one is not capa- the Voice of
ble of any Donative, unleſs he be a Prieſt lawfully ordained; becauſe the People
every Donative muſt be either Parſonage, Vicarage, Benefice, or other ed the Voice
Eccleſiaſtical Promotion or Dignity, and ſo is within the ſaid Statute. of God.
14 Car. 2. C. 4.
Though a Clerk taking Title to a Donative, doth not, or need not Requiſites to
apply himſelf to the Ordinary for Admiſſion thereto, yet I conceive, that be obſerved
he ought (.what Donative foever he takes) at, or before his Admiſſion, taking Title
to be Incumbent, or have Poſſeſſion thereof, to ſubſcribe before his re- toa Dona-
ſpective Archbiſhop, Biſhop, or Ordinary of the Dioceſe, the Declara- tive.
tion enjoined to be ſubſcribed by Stat. 14 Car. 2. C. 4. that is, ſo much
of it as is now in force ; and if the Donative be either Parſonage or Vi-
carage, to have a Certificate under the Hand and Seal of the Perfon
L12
ber
Donation,
And 'tis ve-
ry Evident
12th Centu-
were con-
Vide p. 307.-
172
The Clergy-Man's Law: Or, Chap. XV.
'The Diffe.
rence be-
,
Donatives. bcfore whom he ſubſcribed ; and to read the ſame with the Declarati-
011 aforefaid, in the Church belonging to his Lonative. (Quære.) So
ought he to take the O:th of Supremacy, before he takes the Dona-
tion, viz. before ſuch Perſon who hath Authority to admit him there-
to, who is his Patron, or before ſuch Perſon as thall by Commiffion
under the Great Seal have Authority to miniſter the faid Oath. Stat.
1 El. C. 1. And if his Donative bė a Benefice with Cure, he that takes
it ought firſt to ſubſcribe the Thirty-nine Articles in the Prefence of the
Ordinary; which I ſuppoc, is to be underſtood of the Ordinary of the
Dioceſe, and not of his Patron, although the Patron hath the Power of
viſiting, and correcting him, and not the Ordinary, for he hath nothing
to do thcrewith. I Inft. 344. a. and Fairchild v. Gärre, 2 Cro. 63.
and it is ſafe for him to read the laid Articles, within two Months af-
ter he hath Poſſeſſion, as is before directed, and declare his Aſſent
thereto, although the Words of the Statute be (CUithin two
months after his Induction ;) and he is not inducted, at leaſt in the or-
dinary Way, left it be faid, that his Caſe is however within the Reaſon
and Equity of the Statute, and thertfore that the Statute extends to it,
and he ought to read the Morning and Evening Prayers in his Church,
within two Months after he ſhall be in actual poſſeflion of his Donative,
and the Form of giving Afſent and Conſent thereto, for this is clearly
the Statute 14 Car. 2. C. 4:
Note ſome of the Inſtances beforc-mentioned may rather be called qrafi
tween Dona- Donations than properly Donations. ſuch are. i. The Collation of a Bi-
tions, Royal ſhop without any Preſentation ; 2. The Grant of the King to Prebends,
Prebends,
Gc. without Inſtitution, and 3. The Nomination to perpetual Curacies,
and perpetu- which is without either Preſentation, Inſtitution or Induction. For theſe
differ from Donatives properly fo called, which are given and fully
poſſeſſed by the fole Donation of the Patron in Writing, in as much as
Collations and Royal Grants are to be followed by Induction and Inſtal-
ment. 'And Perſons nominated to Curacies, are to be authorized by a
Licence from the Biſhop before they can legally officiate. Whereas
Poffeffion by Donation is not ſubject to any of thoſe Confequents, but
receives its full Eſſence and Effect from the ſingle Act and fole Autho-
Siderf. 42%! rity of the Donor as aforeſaid; and if what is faid in the Caſe of Clark
and Heath be true, 'That the King hath ſeveral Donatives in Wales,
which yet receive Inſtitution from the Biſhop, it ſeems to be as true, that
by fuch Inſtitution they have loſt the proper Nature of Donatives. For
Gibſon's Code
The Grant of a Donative being once made, creates a Right as full
and laſting as Prefentation, Admiſſion, Inſtitution and Induction can,
viz, à Right not to be deveſted or taken away, but by the Reſignation
or Deprivation of the Donee, whereof the firſt muſt be made to, and
the ſecond by the Donor, for both the Church and the Clerk are ex-
empted from ordinary Jurifdiction: And to this purpoſe is what we find
in Sir John Davis's Reports, viz. 'That a Donátive cahnot be granted
for Years, or at Will only, becauſe this great Inconvenience would
follow, That the Freehold (of the Church, &c.) might be in perpe-
tual Abeyance, which is an inconvenience that the Law will not
The original
ſuffer.
of perpetual | The Caſe of thoſe Curacies called perpetual in Oppoſition to tem-
Curacies Soc. porary Curates, who ferve under other Incumbents
, was originally o-
therwiſe, being fuch Churches the entire Revenue whereof was united
and annexed ad Menjas Monachorum, and not (as other Appropriati-
ons were) under the Tye of having perpetualýicars appointed in them,
but
al Curacies.
865
Chap. XV. The Complete Incumbent.
173
was declared in the before cited Caſe of Fairchild and Gain Conatives
he ought to put in his Clerk who ſhall maintain the Agim
but left to be ſerved by temporary Curates belonging to their own Donatides.
Houſes, and ſent out as Occaſion required. The like Liberty of not
appointing a perpetual Vicar, was ſometimes granted by Difpenfati-
on in Bencfices not annexed to their Tables, in Conſidration of the Po-
verty
of their Houſe, or the Nearneſs of the Church. But when ſuch
Appropriations together with the Charge of providing for the Cure;
were transferred from fpiritual Societies, to ſingle Lay Perſons, who weré
not capable of ſerving them by themſelves, and who by Confequence
were obliged to nominate fonie particular Perſon to the Ordinary, for
his Licence to ſerve the Cure, the Curates by this Means became fo
far perpetual, as not to be wholly at the Pleaſure of the Appropriator,
nor removeable, but by a due and legal Revocation of the Licence of
the Ordinary.
And if the Patron of a Donative or ſuch perpetual Curacy do not Vid
. Telv. Ói.
nominate a Clerk, there can be no Lapſe. But the Biſhop may compel 3 Sal. 140.
him to do it by ſpiritual Cenſures. This with reſpect to Donatives
; becauſe
tho’ the Church is exenipted from the Power of the Ordinary, yet
the Patron is not; and the Rule holds much more ſtrongly in the Cafe
of perpetual Curacies, where both Church and Patron are ſubject to the
Ordinary's Juriſdiction. And where therefore, he may likewiſe Se-
quefter the Profits, and appoint another to take Care of the Cure, till
the Patron ſhall nominate ai fit and proper Clerk. And it was ſaid in
the Caſe of Britton and Wade, That if any take the Profits of a Dona- ż Cro. § 18.
tive, during its Vacation, the Patron cannot maintain the Action, but
Alſo
It was ſaid Obiter in Roll's Reports, That in the ſaid Caſe of Fair- 1 Řol. R. 49.
child and Gair, the Court agreed, That if the Patron would not no-
minate to a Donative, the Biſhop might put it under Sequeſtration.
But thoſe who report the Caſe it ſelf, go no further than to ſpiritual
Cenſures upon the Patron, and at the fame time affert an Exemption
of the Place from the Biſhop's Juriſdiction. And tho*
It has been generally held for Law, That if the Patron of a Dona-
tive doth once preſent to the Ordinary, and fuffer an Admiſſion and In-
ftitution, thereupon the Church, c. is no longer Donative, but ſhåll
be for ever after preſentative and liable to Lapſe, and in all Things ſub-
ject to the Juriſdiction of the Ordinary, in which Doctrine the ancient
Books feem to agree without Exception even to the Crown. Yet there i İnſt. 344.
are later Authorities which fay, Though a Preſentation may deſtroy 2 Cro. 63.
an Impropriation, it cannot deſtroy a Donative, becauſe the Creation See 2.Saik.
thereof was by Letters Patents by which the Land was ſettled to ſuch 551...
a Perfon, and his Succeſſors, and he to come in by. Donation which was 3 Salk. 140.
the antient way of conferring Benefices, and the Inſtitution to Churches
was not ordained by any Temporal Law, there being only a Papa !
Proviſion, and was not received in ſome Places here in England, and
where it was not received, they ſtill went on in the old Way and Mė-
thod of conferring Benefices, which afterwards were called Donatives.
'Tis alſo faid, That Donatives are either by Royal Foundation, or 3 Salk. rác.
by Royal Licence, or by Agreement with the Ordinary (but Quære of
the laſt Kind) and when eſta bliſhed; the Ordinary hath nothing to do
with it ; it is viſitable by the Patron's Commiſſioners, it muſt be reſigned
to the Patron, no Lapfe can incur, &c. and the Incumbent is exempt-
ed from attending at Viſitations, c. But per Holt, Chief Juſtice,
The Ordinary hath in fome Cafés a Power as to the Perſon, tho' pot
4
to
174
The Clergy-Man's Law: Or, Chap. XV.
ܪ
Clections.
Súpra.
Vide ibid.
Vide. F. N. B.
.
to the Place; for if the Parfon marries without a Licence, or com-
niits any Miſdemcanour, the Ordinary may puniſh him ; and if the Pa-
tron will not preſent, the Ordinary may compel him ; but the Ordi-
nary cannot regulate the State of the Church or Viſit, &c.
Styl. 172
Note, It is ſaid in the Caſe of Sprct and Nicholſon, If Iſſue be joined,
whether Donatire or Preſentative, it ſhall be try'd by Jury at Common
Law; and in ſome other Caſes, if the Patron of a Donative be di-
fturbed in Collating, and Recover by a Quare Impedit (which he may
well have) againſt the Biſhop and the Diſturber, a Writ ſhall be di-
rected to the Sheriff to put his Clerk in Poſſeſſion.
But though Clerks, on whom Donatives and ſuch perpetual Curacies
are beſtowed, do not gain Poſſeſſion by Preſentation, Inſtitution and In-
duction ; yet they are obliged in order to preſerve and maintain their
Poffeffion, to be qualifice, and to qualify themſelves in many Things
as other Clerks do, who are preſented, inſtituted and inducted, as
Firſt, To be Prieſts in Orders, without which by 13 and 14 Car. 2.
C. 4. none ſhall be admitted to any Eccļeſiaſtical Promotion. Second-
ly, To ſubſcribe the Thirty-Nine Articles if the Donative be, as all
perpetual Curacies are, with Cure, by 13 Eliz. C. 12. Whereby alfo,
they are in Caſe of ſuch Donatives to be fubfcribed in the Preſence of
the Ordinary. Thirdly, To ſubſcribe the Declaration required by 13
and
14 Car. 2. to be fubfcribed before the Ordinary, and (if with Cure
to take a Certificate thereof. Fourthly, To take the Oaths of Alle-
giance and Supremacy, by i Eliz. and 1 W. M. c. 8. 5. Fifthly,
To read the Common Prayer, and declare his Affent, c. by 13 and
14 Car. 2. C. 4. Q. 6. Sixthly, To read and aſſent to the Thirty-Nine
Articles, (if with Cure) by 13 Eliz. c. 12. I. 2. which though it ſays,
within two Months after Induction, (and here is no Induction) yet the
Cure of Souls being the Foundation wherever there is ſuch Cure, In-
duction is to be interpreted, any ačtual Poleſion. Seventhly, To read
the Certificate, and make Declaration for the Reaſons in the Third
Article ſupra. Eighthly, To take the Oath of Abjuration. For
the Stat. 13 and 14 W. 3. ſays, it ſhall be taken by all Ecclefiaftical
Perſons, who shall be admitted into, or enter upor any Preferments,
Benefices, Offices or Places.
But Note, The Incumbent of a Donative was cited into the Spiritu-
al Court to take a Licence from the Biſhop to preach, &c. and per
3 Sal. 141.
Cur. if 'tis a Donative, and the Biſhop will viſit, oc. a Prohibition
ſhall be granted.
The third Way or Means of taking a Title to an Eccleſiaſtical Pre-
ordinary ferment, is by Election, and Confirmation, and this is the Way by
Means, is by which a Title is had to the greateſt Dignities in the Church, viz. Årch-
Election to biſhopricks, and Biſhopricks, Confecration being alſo made, where the
the greateſt Perſon promoted was not a Biſhop before : And in what manner Arch-
Dignities.
biſhops, and Biſhops, ſhall be made, and ſettled in their Dignities,
hath been declared by Act of Parliament, viz. 25 H. 8. c. 20. But
Biſhop Suffragans are not in like Manner to be made, but by way of
Preſentation, according to the Direction of an Act made for that Pur-
poſe. See Stat. 26 H. 8.c. 14. Alſo the ancient Deans of Chapters
come into their Deaneries as Biſhops now do, by a Conge d'Elire from
the King, and are confirmed by their reſpective Biſhop. i Inft. 95. a
Parſons Laws, c. 2. And the Perſons taking theſe ancient Deaneries,
are to ſubſcribe the aforeſaid Declaration, or Acknowledgment, to
take the Oath of Supremacy before they are admitted, and to read
the
Mod. 90.
The third
2
Chap. XV. The Complete Incumbent.
175
the Morning and Evening Prayers in their reſpective Cathedral, and the FirſtFruits.
Form of Aſſent and Conſent thereto, within two Months after their
Inſtallment. Stat. 14 Car. C. 4.
Alſo, Every Perſon who ſhall be nominated, elected, prefected, per- To pay or
fented, collated, or by any other Means appointed to have any Digni- compound
ty, Benefice or Promotion Spiritual, before any actual or real Poſlef- Fruits:
fion, or medling with the Profits of any ſuch Dignity, Benefice, or
Promotion Spiritual, is to pay, or to agree and compound for his Firſt
Fruits ; the ſeveral Acts of Parliament which relate to the paying of
Firſt Fruits, are theſe that follow:
"Tis enacted, That the King's Highneſs, his heirs and Succeſ: By 26 H. 8.
fols, Kings of this Realm, Mhail have and enjoy from Time to Time, c. 3.
to endure for ever, of every ſuch Perſon and Perſons, which at any The Firft
Time after the firſt Day of January nert coming, fhall be nominated, Profits for
elected, prefected, preſented, collated, or by any other means appoint: one Year of
ed to have any Archbiſhoprick, Biſhoprick, Abbacy, monaſtery, prioy, every Spiri-
College, Hoſpital, Archdeaconry, Deanry, Provoſtfhip, Plebénd, Par- is granted to
fonage, Ticarage, Chauntry, Free Chapel, oj other Dignity, Bene: the King:
fice, Dffice of Promotion Spiritual, within this Realm, og elſewhere
within any of the King's Dominions, of what Name, Nature, od
Duality ſoever they be, of to whole Foundation, Patronage, od Gifts
ſoever they belong, the Firſt Fruits, Revenues and Profits for one
Year, of every Tuch Archbiſhoprick, Biſhoprick, abbey, Monaſtery,
Prio, College, Hoſpital, archdeaconry, Deanry, Povoſtchip, Pre-
bend, Parlonage, Aicarage, Chauntry, free:Chapel, oj other Digni-
ty, Benefice, Ditice, 02 Promotion Spiritual afoje named, whereunto
any ſuch Perſon or Perſons after the ſaid Firſt Day of January be 110.
minated, elected, prefected, preſented, collated, or by any other Azeans
appointed.
and that every ſuch perſon and perſons befoje any aâual 02 real Every Spiri-
Potellion, 02 medling with the Profits of any ſuch archbiſhoprick, hall be
Bifhopkick, abbacy, monatery, Coilege, Volpital, Deanry, Provoſt- bound for his
thip, Prebend, Parlonage, Cicarage, Chauntry, Flee-Chapel, Priory, Firſt Fruits
o2 other Dignity, Benefice, Dltice, 02 Promotion Spiritual, fhall (a: actual Poller
tisfy, content of pay, 02 compound, oz agree to pay to the King's Ule fion of his
at reaſonable Days, upon good Sureties, the ſaid fitft- fruits and
Profits for one year.
And 'tis thereby further enacted, That an Dbligation for the Firſt
Fruits, thall be of the ſame Strength, that the Statute of the Sta-
ple is : And that all firſt- Fruits payable to other perſons thall ceaſe,
and be paid to the king, his heirs and Succellois.
Alſo by the ſaid Statute 'tis enacted, That the King's Pajegy, his A Yearly
Þeirs and Succeflous, Kings of this Realm, foz moje augmentation Tenth of a!
and Maintenance of the Royal Eſtate of his Jinperial Crowni and vings given
Dignity of Supreme Fead of the Church of England, ſhall yearly to the King.
have, take, enjoy and receive, united and knit to his Imperial Crown
fo2 ever, Dne yearly Rent 02 Penfion amounting to the Value of the
Tenth Part of all the Revenues, Rents, farnis, Tythes, Dfferings,
Emoluments, and all other Profits, as well called Spiritual as Tema
pozal, now appertaining of belonging, oz that hereafter fhall belong to
any Archbiſhoprick, Bithoprick, Abbacy, Monaftery, Prior, archdea-
conry, Hoſpital, College, houle:Collegiate, Prebeno, Cathedral Church,
Collegiate Church, Conventual Church, Parlonage, Uicarage, Chaun-
try, free. Chapel, oj other benefice or Promotion Spiritual, of what
Rame, Hature, 02 Duality Coever they be within any Dioceſe of this
3
Realm,
Benefice.
176
The Clergy-Man's Law : Or, Chap. XV.
26 H. 8. c. 13.
10 pay any
27 H. 8. c. 8.
pay any
ſame Year
their Firſt
Fruits.
#ra Fruits. Realm, 02 in Wales. Alſo it is thereby piovided, that the ſaid Centh
ſhall be paid at Chriſtmas Pearly.
Alſo by a Statute made 26 H. 8. cap. 17. 'tis enacted, That all
l'ermors of and Ungular fermozs and Lefees, of any nganojs, Lozdlhics, Lands,
Perſons not Tenements, 02 other Hereditaments, Parſonages, Micarages, 02
Portions of Tythes, of other whatſoever Profits of Commodities be
Dirih Fruitsa longing to any Archbiſhop, Bifhop, 0? other Prelate, 02 Spiritual
granted to Perſon of perſons, or Spiritual Body Corporate 02 Politick,
the King
whereof any Firſt: fpuits, 02 yearly Pention of the Tenth Part
was granted to the King in the ſaid Setion of Parliament, fhall be
diſcharged, and not chargeable to pay to the king, of his oz their p?o-
per Money, Coft 02 Charge, fol, od in Diſcharge of the Lello oz
Lellojs, Dwner 07 Dwners of the ſame, by reaſon of any Covenant,
Bargain, Bond, Condition, Clauſe of Re-entry, 02 other Thing
thentofoje made oz concluded.
But that every of the ſaid Lellous and Owners, and their Succel-
fors, fall be charged and chargeable to pay and ſatisfy the ſame of his
o2 their proper Coft and Charge to the king, his Peirs and Succeſs
(ozs, accouding to the Ozant thereof, any Covenant, Bargain, Con-
tract, Bond, Condition, Clauſe of Re-entty, of other Ching thento
fore made o2 concluded to the contrary thereof in any wiſe not with
Atanding
And by the Stat. 27 H. 8. c. 8. it is enacted, That whenſoever any
No Spiritual Perſon o2 Perſons chall be named prefe&ed, peſented, collated, O2 by
any other means appointed to have any Archbithoprick, Biſhoprick, ab:
Tenth the bacy, gonattery, Priory, College, Hoſpital, archdeaconry, Deaconry,
they pay
Provoftthip, Prebend, Parlonage, Wicarage, Chauntry, Free-Chapel,
02 other Dignity, Benefice or Promotion Spiritual, by vertue whereof
they Mall be charged of chargeable, as well for the Payment of the
Tenth of everyCaid Archbiſhop?ick, Biſhopůck, &c. as with the Payment
of the firſt- Fruits of the ſame, and every of the ſame, thall at bis op
their Compoſition, agreement, ol Entry into Specialty od Special-
ties for the payment of the ſaid firſt-fruits, have allowance and De:
duäion of the ſaid Tenth Part of the whole, out of the sum to be
paid fo the ſaid Firſt-fruits, fol the Year wherein he od they ſhall be
firft nominated, płefeaed, preſented, collated, od by any other means
appointed, to have any the ſaid Dignities, Benefices, Difices, oj other
Promotions Spiritual, accouding to the juſt Rate, Taration and sele
ment of the Tenth of every ſuch archbichopzick, &c. Difice of promo,
tion Spiritual, within this Realm, og elſewhere within any of the
King's Dominions, of what Name, Nature of Duality Coever they
be, ou to whole Foundation, Patronage, od Gift loever they belong,
now being enrolled, or that bereafter Chall be enrolled in the King's Er-
chequer, oz in any other the King's Courts of Recoid.
Then follows a Clauſe, That Commiflioners and other perſons
Firft Fruits authorized to compound for the firft- Fruits, may dedu& the Tenth
duêted the Part out of the Firſt- Fruits.
Alſo, That he who hath his Tenth dedu&ed out of the firf- fruits,
To be paid to for the year he hall be firtt nominated, &c. fhall pay it to the king,
the King, Sync.
bis þeirs and Succellois, in like manner as is limited by the Act 02
the Grant of the ſaid Tenth and Firſt-fruits.
Remedy With a Clauſe of Remedy for the Succeſſor, who is compelled to
where a Suc- pay the Tenth for his Predcceffor, viz. by Diſtreſs and Retainer of
the Tenth for Goods till Satisfaction, and in Default of Diſtreſs, by Bills in Chance-
Oy
Out of the
Tenth.
his Prede-
ellor.
2
S
Chap. XV. The Complete Incumbent.
177
Firſt Fruits
in Time of
gy', or Action, or Plaint of Debt, to be taken and commenced by ſuch Firli Fruits.
Succeſſor, by Order of the Commicn Law.
And by à Clauſe in the Statute 28 H. 8. c. 11. 'tis enaĉtrd, That 28 H. 8.c. 11.
the laid Year in which the firft: Fruits fhall be paid to the king, Chill That the
begin and be accounted immediately after the avoidance, ou Uacation of bents chary-
any ſuch Benefice o2 Peomotions Spiritual.
ed to the
and that the Tythes, fruits, Dblations, Dbventions, Emoluments, kine füits.
Commodities, Advantages, Rents, and all other whatſoever Reve: ſhall begin
nues, Caſualties 02 Profits, certain and uncertain, offering of belongs from the firft
ing to any Archdeaconry, Deanry, Prebend, Parſonage, Uicarage, the Benelice,
Hoſpital, Warden Chip, Provoftſhip, or other Spiritual Promotion, Bergsc.
ncfice, Dignity o2 Dice, (Chauntries only ercept) within this Realm,
o2 other the King's Dominions, growing, riâng Od coming during
the Time of Vacation of the ſaid Promotion Spiritual, thall belong
and affer to ſuch Perſons as thall be thereunto next preſented, pro-
moted, infituted, inducted oz admitted, and to his Erecuto’s towards
the Payment of the firit Fruits to the King's bighneſs, his heirs
and succeſſors, &c. [See more concerning this Statute of Firſt-
Fruits in Chap. 40.]
And Note, That by this Statute, the Forfeiture of the Ordinary, The For-
oc. which receiveth the Fruits of a Benefice during the Vacation, feiture of the
and doth not reſtore them to the next Incumbent, is the Treble Va- Soc. which
lue, One Moiety to the King, the other to the Incumbent. However, receiveth the
ſuch Archbiſhops, &c. ſhall be allowed the Charge of the Cure, and
of inning Tythes and other Profits. And here if the Fruits be not fuffi- Vacation.
cient to pay the Curate, the next Incumbent ſhall do it within Four-
teen Days after his Induction. (See Chap. 40.]
Alſo by a Clauſe in a Statute made 37 7. 8. C. 21. concerning the Stat
. 37 H.
Union of Churches, there is a faving unto the King's Majeſty, his ... . ;
Heirs and Succeffors, of all the Tenths and Firſt-Fruits of all ſuch Tenths and
Churches and Chapels, as were thentofore united or conſolidated in Firſt Fruits.
one, or that thereafter ſhould be united and conſolidated into one ac-
reſerved.
cording to the ſame, or ſuch like Rates and Valuations, as the ſame
Churches and Chapels, or any of them were theri rated or valued at
to the King, in the Court of the Firſt-Fruits and Tenths.
Note, All theſe Statutes were repealed by Stat. 2 and 3 Ph. and M. By 2 and 3
c. 4. and the Payment of the First-Fruits and Tenths ceaſed from the P. M 6.4
the then Eight Day of Auguſt ; but this Statute of Repeal was re-
tutes repeal-
pealed by i Eliz. C. 4. made for the Reſtitution of the Firſt Fruits to ed, bur again
the Crown. And thereby it was enacted as followeth, viz. That fo revived, by
much of all and every the acts and Statutes firſt recited, oz of any o:
ther AX 02 Statute touching or concerning the Deder, levying, true
anſwering, and Payments of Dualification of the Caio Firtt fruits
and Tenths, and of the ſaid Becojies, Parlonages and benefices
Impropriate, and of the Rents, Revenues, Emoluments and Profits
thereof, and of all other the Premifles, and alſo the Charge, Dil-
charg!, 02 Alteration of them, o2 any of them; 02 any matter 302
Thing in any wiſe, founding 02 tending thereunto, which were ſtand-
ing and being in forcé, effect, and unrepealed, at and before the faia
Eighth Day of Auguſt, (except only the gas of the Eredions of the
Courts of augmentations, and first: Fruits and Tenths) ſhall be,
remain anid continue in their full and perfect Strength and force, and
be obſerved and put in due Erecution, according to the Tenures and
Purpolts of the ſame, and every of them.
M m
Alfo
The laid Sra-
i Eliz. Co 4
:
178
The Clergy-Man's Law: Or, Chap. XV.
Vicarages
and Parro-
nages dir-
,
of Wells
firſt fruitf. Alſo by this Statute, 'tis cnacted, Chat Wicarages of 10l. per An-
num, and Parſonages of 10 Marks per Annum, 02 under, fhall not
be chargeavie with firſt ffruits.
That if any jllcumbent continue in the Benefice half a year aiter
charged.
The Charge
the laſt avoidance, and die, ol be legally outed before the End of the
of an Incum- Vear, he, his Erecutors, adminiſtrators, or Sureties, thall only pay a
bent living fourth Part of tije firſt. Fruits : 3e he live out the Year, and die, od
fosc. afrer an
be outed within Sir months after the year, only half the first- Fruits
Avoidance. ſhall be paid : and if he live out the year and the half, and die, od be
outed within one year, only the quarter of it thall be paid.
Grants nradc That Diſcharge of Fir&- fruits and Tenths, heretofore granted by
to the Uni- any of the Queen's predeceſſols to the Univerſities, oj the Colleges
verſities and in them, o. to thoſe of Eaton 02 Wincheſter, thall rematii god, not-
Colleges, Esc.
withſtanding this act ; alſo the Dean and Canons of Windſor, fall
Windfor.
be benceforth diſcharged of the Tenths and firſt fruits befode-mens
tianed.
Archbiſhop Chat all Grants of Jmpropriations made to the archbiſhop of Wells,
thall remain good notwithſtanding this ad ; yet the ſaid archdeaconry,
charged.
and all Spiritual Prom-tions aſſigned to it, ſhall from bencefox.b pay
Firſt Fruits and Tenths.
Dutchy of
That all 3.mpropriations, or other profits of Emoluments Eccleli.
Lancaſter. aftical, which were formerly within the Dutchy Court of Lancaſter,
ch.11 be recontinued, notwithtanding this ait, 02 that of 2 and 3 Ph.
and M.
Hoſpitals That the Revenues of yoſpitals and Schwls, thall 11ot be charged
and Schools with the Payment of firſt-fruits od Tenths, notwi bítanding this ax,
diſcharged.
i. c. i Eliz. C. 4.
Stat. 17 Car.
And note by Stat. 17 Cor. 2. c. 3. for Union of Churches, &c.
(which fee in the next Chapter) there is a S.aving of all Firſt-Fruits and
Tenths to the King, GC.
The Queen By Stat. 2 and 3 Annæ, c. 11. 'tis enacted, That the Dueen may by
may erce a Letters Patents, incorpožate ſuch Perſons as the chall appoint, to have
and ſettle the a Common Seal, and perpetual Succellion, and by the ſame, od other
Firſt-Fruits Letters Patents, may limit and ſettle upon the ſaid Torporation, the
and Tythes
for Augmen-
Firſt- Fruits of all Benefices Spiritual, fou the augmentation of tije
tation of the Maintenance of miniſters of the Church of England, officiating it
Maintenance any Church o2 Chapel in England, Wales, O2 Berwick, 110t ſufficiently
er Clergy
provided for, with ſuch Rules, and in ſuch manner as fall be thereint
erprefled.
That the Statutes and provilons touching the Levying, Payment
and Qualification, thall continue in force as to the ſaid Firſt: fruits.
That this act fall not affect oz avoid any Grant, Alienation, 0. In:
Grant, Eco cumbiance made of, oy on the ſaid Fielt
: Fruits. And that all perſons
One Bond on- (ercept within Age, ol Non fane Demony, or Women Covers with
for the Four out their husbands) may give Lands, Tenements, 02 Hoods to the
Payments of ſaid Corporatioli.
That olie Bond olily ſhall be given for the four Dayments of Firm
Fruits, to be paid according as they have been uſually rated and vaid,
and not four Bonds; and no fifty Bulid taken for a further Walue od
cal Benefices Payment in reſpex of the ſame, thall be ſued od recovered.
nor exceed-
And Note by Stat. 5 Annæ c. 24 a!! Benefices with buite of
in sol. thogo
Souls, 11ot crceeding the clear yearly Ualue of 5.0 l. by the improved
annum, dir-
Chungca from Ualuation (the Conth whereof by Der maicfiy's Letters Patents,
Pays of dated 3d lov. ill the Third Year of Her Pajeſty's Reigni, ace veſtea
in
Err. for ever.
2. C. 3.
1
of the means
Not to avoid
any former
the Firtt.
Fruits.
St. 5 dna.
0.24
Firsi Traits,
Chap. XV. The Complete Incumbent.
179
Cure of
Souls.
nue for .
in a Co2poration, by the ſaid Letters Patents, conftituted by the Nanie Firfe fruit
of, The Bounty of Queen ANNE, for the Augmentation of the
poor Clergy) and the Incumbents thereof, their heirs, Erecutois, 90:
miniftrators, and Sureties, wall be diſcharged from the ſaid firſt.
Fruits and Tenths, and arrears thereof.
That the Biſhops of every Dioceſs, Guardians of the Spirituals, Bishops tờ
ſede vacante, and Dudinaries of Peculiars, fyould by Daths of two certify the
02 more credible Witneſſes, (which they, 02 Come commillioned by Value of Be
them, were impower'd to adminifter) as by other lawful ways, inform ncfices with
themſelves of the improved yearly Calue of every Benefice, with Cure
of Souls within their reſpective Jurisdictions, the clear yearly Galue
whereof doth not erceed 50 l. and 011 02 before the 25th of March 1708,
under their hands and Seals, certify the ſame into the Erchequer,
which Certificate filed there, fall accertain the yearly Walue of the
Benefice, to be diſcharged by this act.
Povilo, That this da fall not diſcharge any Benefice with Cure Not to diſ-
of Souls, the Tenths whereof were granted to any perſon in Per: Tenths for-
petuity before the 3d of November, in the Third Year of her majeſty's merly grant-
Reigni.
ed in Perpe
.
Chat when any part of the Firſt-Fruits remaining to be diſpoſed of Firtl Fruits
Dall be diſpoſed of towards the Maintenance of any Miniſter officis once applied,
ating in any Church of Chapel, fuco Part
fhall ever be in like Danner Soe to conti-
continued to the poiniffer from Cime to Time, officiating in the came
Church or Cljapel, who ſhall enjoy the ſame for ever. And this 98 mall
be taken in all Courts and Places as a publick Act.
Provilo, That this Na Ball not be conärued to avoid of diminish Not to dimi-
any Stipeud 02 Penſion granted to any perſoni, and charged on the groc. here-
Caid firfi- ffruits : But ill cale it happen, that by diſcharging ſuch fore granted
ſmall Benefices, the firſt- Fruits in any Dioceſe ſhall not be ſufficient out of the
to ſatisfy ſuch Sums they ftand charged with, then the whole Firſt: Egc.
fFruits throughout England ſhall be liable to make good fuch Defi-
ciencies.
By Stats 6. An. C. 27. all Ecclefiaftical Benefices, with Cure of Stat. 6 Ann.
Souls, not frceeding the clear yearly Calue of so l. by the improved 6:37:
Waluations (the Tenths whereof are not veſted in the Coppolation of, fical Bene-
The Governors of the Bounty of Queen ANNE, &c.) and the Fn: fices not ex,
cumbents thereof, their reſpective Heirs, Erecutous and adminiftra- ceeding solo
per Annum,
tois, Succeſſos and Sureties, fhall be diſcharged from the Caid Firſt sec.
Fruits. and the aſcertaining the Caid yearly Waluations of ſuch Be. Diſcharged
nefices hereby diſcharged, fall be as Oiber Livings mentioned in s First Fruits,
An. cap. 24.
That the Certificates of the proper Didinaries into the Erchequer, Further
of the yearly Galue of Livings hereby intended to be diſcharged, may
Certificates.
be made at any Time before the 24th of December 1708.
That ſuch Certificates as fhall be made into the Erchequer of the And ſhall be
yearly Caluation of Livings, intended to be diſcharged by the ſaid act made before
5 An. c. 24. before the ſaid 24th of Dec. 1708. thall be as good as if 29 March
made before the 25th of March 1708. And that this act ſhall be taken 1708.
This a pub-
and accepted as a publick Act.
That every archbiſhop and Biſhop, Chall have four years allowed Four Years
them, when he oy they fall compound fol the ſame, for the payment allowed to
of Fird: fruits, which mall cominence from the Time of Reftitution Archbiſhops
of the Tempožalities, and every year fhüll pay one fourth Part ; and to pay their
if be die, Ol be removed before the four years expire, be, bis heirs,
bis heirs, Firit-Fruits
.
M m 2
Ere:
Firſt-Fruits,
All Ecclefia.
fort.
Tinie for the
lick Act.
180
The Clergy-Man's Law: Or, Chap. XVI.
caſe of
Death,
Union of Erecutors, and adminiftrators, mall be diſcharged of ſo much as was
Churches.
not payable before his Death 02 Removal.
Provilo in Chat Deans, archdeacons, and other Dignitaries, ſhall compound
for their firæ fruits, as Reales and Ulicars have been accutomed to
Dcans, Arch- do ; and in caſe of Death 02 Removal within the Time allowed to
deacons, Etc; Rectors and Cicars foz Payment of fira- Fruits, ſhall have the Benes
to compound
for Firſt-
fit allowed Redogs and Wicars. by 1 El. c. 4. for Reftitution of Firt
Fruits, as ffruits to the Crown.
Rectors, Vi-
cars, foc.
:
i
C HA P. XVI.
Of Union of Churches.
The extraor-
dinary Ways T
HE extraordinary Ways or Means by which an Eccleſiaſtical
or Means.
Perſon may have a Title to a Benefice in the Church, are, ei-
1. Union. ther by procuring an Union to be made of a Church, to the Church or
2. Appropri- Benefice of which he was before poſſeſſed, or by cauſing another Bene-
3. Commcn- fice to be appropriated to him and his Succeſſors, as Incumbents of
another Church, or by Commendam recipere. Concerning the Union
of two Churches into one, two Acts of Parliament have been made,
viz. 37 H. 8. c. 21. and Car. 2. C. 3. the Words of which, ſo far as
they touch this Matter, are as followeth :
dam.
:
W
H. 8. 6. 21.
Union of two
Churches by
Here in divers and fundzy Places within this Realm of Eng-
A&ts of Par-
land, there be many and fundyy Parſonages, thé Glebes,
Jiament, 37 Tythes, and yearly Revenues, and profits whereof, be not ſufficient
to find a Pueft op Curate, to ſerve, od minifter to the Paríthoners
thereof, within a mile oy leſs, of the Church ; of which poor Parlo:
nages, there is in many places, another Church pertaining ta ana.
ther Pariſ, ftanding as neceffary, and commodioudy, for the acceſs of
the Pariſhioners of the other pooz Pariſ, as their own doth.
and fozaſmuch as the Charges fou the Maintenance of two fuch
Churches and Chapels, with all manner of Beparations, Dinaments,
aņd other accuñamed Duties pertaining to a Church, be much greateç
than may be well raiſed of boili, amongat ſuch poor Parithioners, and
might, and thould be ealed and remedied, by the uniting, and knitting
of Auch Churches in one.
It may therefoje pleaſe the King's Royal gajeſty, with the aflent
of his Louds Spiritual and Temporal, and the Comming in this pre.
fent Parliament adembled, and by the authority of the ſame, that it
may be enađed and eſtabliſhed, That an Union, o Conſolidation of two
Churches in one, 07 of a Church and Chapel in one, the one of them
of what not being above the yearly Calue of fir Pounds, as it is rated
and valued at to the King's Highneſs, in the Court of the firſt-
fruits and Tenths, and not diſtant from the other aboue one gile,
in any place, or Places within this Realm of England, may be froņi
yenicefoztu bad, od made by the Affent of the Didinary, 02 Didinaries,
Value.
How diftant.
of
Chap. XVI. The Complete Incumbent.
181
:
Unions.
of the Dioceſs where ſuch Churches and Chapels ſtand int; and by the Union of
Churches.
gflents of the Incumbents of them, and of all ſuch as have a juſt
Right, Fitle, and Intereft, to the Patronages of the ſame Churches
and Chapels, being then of full Age : and that all ſuch Unions, and
Conſolidations, bad, oz inade of two Churches in one, or of a Church
and Chapel in one, as is aforeſaid, thall be good, fufficíent, lawful,
firm, table, and available in the Law, to remain, endure, and conti-
nue for ever, united and knit in one, in ſuch manner and fo2m, as by
Writing, 02 Furitings, under the Seals of fuch Didinaries, Incum:
bents, and Patrong, it ſhall be declațed and ſet forth.
And be it further enacted by the au bority afojelaid, That all Unions of former
and Conſolidations, of all Churches and Chapels, which have hereta.
foże been united, 02 knit together in one, by the affent of the Didina-
ries, Incumbents, and true and lawful Patrons in Fee-fimple of them,
as is afojeľaid, ſhall alſo remain, and be from henceføith adjudged and
Deemed in the Law, to endure and continue for ever, united and knit
tu one, without any Diffolution, undoing, unkniting, og repeal pe
them, oz any of themi, by any manner of Means o2 Tuay,
Saving unto the King's majefty, his heirs and Succeſors, all the Saving of
Tenths and firſt fruits of all ſuch Churches and Chåpels as be here- Firſt-Fruits
.
tofoze united of confolidated in one, or that bereafter fhall be united and
conſolidated in one, according to the ſame, oy ſuch like Rates and Uas
luations as the famie Eburches and Chapéls, or any of them now are
rated of valued as to the King's ſaid Pajeſty, in his faid pighneſs's
Court of the Fira-fruits and Tenths, provided always, Chat all U:
nions and Conſolidations, and every of them hereafter to be bád of
made of any Church of Chapel, within any City, 02 Town- ojpozate,
within this Realm of England, without the attent of the mayoż, Shes
riffs, and Commonaſty of the City where fuch Churches Church of
Chapel, be, oz ſhall be ; od without the Affent of ſuch Bodies Copo
rate of other Towns-Coipojate, where ſuch Churches, Church, oz
Chapel, he, o fhall be, by the names of their Cozporations in Turi:
ting, under their Common Seat, thall be clearly void, and of no force
por Effc& ; any thing before erpreſſed, 0%, any Didnance, Law, ' Cu-
ſom of Statute to the contrary thereof in any wiſe nothwithfand.
ing.
Povided alſo, That where the Inhabitants of any ſuch poor. Dai Proviſo for
rilh, or the może part of them, within one year nert after the Union making void
02 Conſolidation of the ſame Parith, by their Writing, ſuficient in the
Law, fhall affure the Incumbent of the ſaid Pariſh, for the yearly
Payment of ſo much money, as with the Sum that the Caid Pariſh is
rated and valued at in the King's Highneſs's ſaid Court of the firft.
fruits and Conths, mall amount to the full Sum of Eight Pounds
Sterling, to be levied and paid yearly by the ſaid Inhabitants to the ſaid
Jncumbent and his Succeffozs, that then all ſuch Ünions of Conto-
lidations, hereafter to be had op made, of any ſuch poor Darily as
is aforeſaid, ſhall be void and of none effect ; any thing Statuted,
0 Didained to the contrary hereof in any wiſe notwithftanding.
Provided always, That this faid Pioviſa fhall 11ot extend to any
Union of Conſolidation of any Church oi Chapel, had, 02 made, before
the making of this Statute : any thing in the ſaid Plovilo mentioned
to the contrary thereof notwithſtanding,
4.
fogalmuch
182
The Clergy-Man's Law: Or, Chap. XVI,
Llnion of
Churches.
F
17 Cnr. 2.6. 3.
Churches in
Cities and
Daſmuch as the ſettled Proviſion for Dziniſters in moſt Cities and
Towiis Corpojate within this Realm, is not ſufficient fuż the
for Union of Maintenance of able Winifters fit foz luch Places, whereby mean
and ſtipendary Preachers are entertained to ſerve the Cures there,
Towns Cor- who wholly depending for their maintenance upon the good Will and
porate, &mco Liking of their auditoys, have been, and are hereby ulider Tempta-
tion of too much complying, and ſuiting their Dogrines, and Teach.
ing to the humour, rather than the Hood of their auditoys, which
bath been a great Dccalion of faction and Schilm, and of the Con
tenipt of the miniſtery. The Lojds and Cominons in Parliament
allembled, being deeply ſenſible af the ill Conſequence thereof, and pí:
oudy deliring able Miniſters in ſuch Places, and a competent ſettled
Maintenance for them, by the Union of Churches ; which is alſo bes
comie neceſſary, by reaſon of the great Ruin of many Churches and
Pariſhes in the late ill Times, and otherwiſe, do therefore molt hum.
bly beſeech your molt ercellent Majeſty, that it may be enađed, and be
it enacted, by the king's mot ercellent Majeſty, by, and with the Ad-
vice and Conſent of the Louds Spiritual and Tempojal, and the Coni:
mons in this preſent Parliament aſſembled, and by tie authodity of
the ſame, Chat in every City, 02 Town Cozpojate, and their Liberties
within the Kingdom of England, and Dominions of Wales, which
þave a mayor and aldermen, and particular Juſtices of the peace, by
Charter, o2 Commiſſion ; 02 Bailiff, 02 Bailiffs, 02 other chief Difi
ficer, od Dficers, and other aliftants by like Charter ; and where
two, oz miode Churches, ol Chapels, 01 a Church and a Chapel, and
the Pariſhes thereunto belonging, do lie within the ſaid Corporation,
02 Liberties thereof, convenient to be united. In ſuch caſes, the
Biſhop of the Dioceſs where ſuch Pariſh and Pariches are, with the
Conſent of the mayor, Aldermen, and Juſtices of the Peace, Bai-
liff, 02 Bailiffs, oy other chief Dificer, op Dificers, 02 the majoz Part
of them, and of the Patron, o Patrons of ſuch Church, od Churles,
Chapel, 02 Chapels, Thall, oz may, according to due form of Law,
unite the ſaid Churches ol Chapels, od Church and Chapel, ou any of
them; and fall appoint at which Church, 02 Chapel, Churches, oz
Chapels; the ſaid Pariſhioners and inhabitants of the Parifes, og
Places, to which the ſaid Churches, 02 Chapels, od Church, and
Chapel do belong, fhall uſually meet for the Tuothip of God; and
which of the ſaid Churches, o Chapels, or Church, 0l Chapel, chall
be united and annered unto the other, which wall be the Church pze:
ſentative, unto which all Preſentations thall thereafter be only made,
and unto which the pariſhioners ſhall reſolt as their proper Church.
And after ſuch Dider
made, the ſaid Churches, o Chapels, o2 Church
and Chapel, fall accordingly for ever ſtand united. And the pariſhi.
oners, Landholders, and Inhabitants of the Caio Pariſhes, and
places belonging to ſuch Churches, ol Chapels, 02 Church and Cha
pel ſo united and annered, fall, as they, of any of them become roid,
and from thencefujward, pay all ſuch Tythes, and oiher Duties, as
belong, od did belong to the incumbent of any of the ſaid Churches,
od Chapels, od Church and Thapel, lo united and annered unto the J11a
climbent of the ſaid preſentative Church, 02 Chapel, unto which the
Caid other Churches, 02 Chapels, 02 Church, 02 Chapel, wall be co
united and alinered.
4
Chap. XVI. The Complete Incumbent. .
183
C!urches
and it is hereby alſo enacted, That notwithſtanding any fuclj dinli Ünfor of
on to be made by vertue hereof, each of the Parifies ro initið mall
continue diſtinct, as to all Kates, Tares, parochial Rites, Charges Pariſhės ir
and Duties, and all other Privileges, Liberties, and Reſpects what continue di
Coever, other than what is bereint befode-inentioned and ſpecified, and
Church 71ardens thall be eleged and appointed fo2 each Pariſi), as they
were before ſuch anion made.
And it is further ennåed and provided, That where one or more of When to
the ſaid Churches, 0: Chapels, 02 Church and Chapel ro united and effect.
annered, ſhall be full at the Time of making fuch Union, that the
ſaid Union fjall take effect for every ſuch Church), 01 Chapel, upon the
firft avoidance after ſuch Onion made. And that the ſeveral patrons Preſentation
of the ſaid Churches and Chapels ſo tinited, fall, and may preſent by Turns:
by Turns to that Church only which ſhall remain, and be preſentative
from Time to Time, in ſuch Dider as the ſaid Biſhop, with the con-
Cent of the ſaid Yayo!, Alderinen, and Judices of Peace, Bailiff,
02 Bailiffs, oj other chief Dfficer, 0: Dficers, within ſuch Parithes,
02 the major part of them, and of the Patron, 02 Patrons of ſuch
Church, o! Churches, Chapel, 02 Chapels, mall determine and decree
for the Preſervation of their reſpeãive Rights therein, Reſpea bcing
therein had to the Differences of the Walue of the yearly againtenance
belonging to ſuch Churches 02 Chapels, oz any of them, Caving unta
the King's Majeſty, his Heirs and succeflois, all the Tenths and
Firft fruits of all ſuch Churches and Chapels co to be united ac- Saving of
cording to the Kates and Taluations at which the ſaid Churches and Tenths and
Chapels are rated and valued, in the Dffice of firſt-ffruits and
Tenths, in his Majeſty's Court of Erchequer : and alſo reſerving all
Procurations and Pendons to all Perſons to whom they are now,
and have been formerly, oz mhall be hereafter due and payable ; any thing
herein contained notwithſtanding.
Provided always, That no Union of Pariſhes, or Places to be Union to be
made, by vertue of this act. ſhall commence, or be effe&ual in Law,
regiftred.
until it be regiſtred in the Regiſter-Book of the Bifhop of the Dia-
ceſs, which the Regiffer is hereby required to do.
Provided always, That no anion made by vertue hereof, fhall be if the Maina
good and effequat, where the ſettled maintenance belonging to the tenance exa
Parſons, Aicars, and Incumbents of the Church, O! Chapel, op per Annum.
Churches, 02 Chapels ſo united, ühjall erceed the Sum of Dne huli:
died Pounds per Annum, clear, and above all Charges and Reprizes ;
unleſs the reſpexive Pariſhioners, or the major part of them, under
their Bands, delire otherwiſe.
provided always, and be it ene&ed, Chat every miniftéć ſettled Miniſter to
as afo claid, the incumbent of any Church, od Chāpei, oz Churches be a Gra-
and Chapels united according to this Act, thall be the full and lawful
Incumbent thereof, to all intents and purpoſes, fo as ſuch miniles
be a Öjaduatc in one of the Univerſities of this Kingdom.
Firft Froies;
cgo co
.
.
duare:
Churches
were for-
Before either of theſe Statutes were made, it was lawful for the Hot pook
Ordinary, by the Afſent of the Patrons, to unite or conſolidate two
Churches ; and this by Gaudy and Fenner, without the King's Licence merly unir
precedent, or Confirmation ſubſequent; eſpecially if the Churches were ted.
Poor: But, ſay they, the Ordinary, with the Confent of the Patrons;
without the King's Confirmation, could not have made an Union of
Churches, which had ſufficient to maintain an Incumbent each of then
by
4
j
verty.
Biſhop of London, 3 Cro. 719. In
184 The Clergy-Man's Law, Or : Chap. XVI.
dinion of
by it ſelf; but by the Conſent of the King, Patrons and Ordinary, an
Churches.
Union may be made of any Churches, of whatſoever Value they be
yet the Ordinary is the principal Actor in the Union, and if the King's
Conſent be either precedent, or ſubſequent, it fufficeth. 40 E. 3. 28.
a. 50 E. 3. 26. 32 H. 6. 22. 4 H. 7.6. 9 H. 6. 22. Br. Abr. Appro-
priation, Gr. 2 Mich. 38. 39 Eliz. Auften and Twine's Caſe. Roll's
Abr. p.778. the ſame Cafe'. Moor 408. and 661. and 3 Cro. 500. Para
ſon's Law, c. 28. And ſo it doth füffice to have the Patron's Confent
before the Union ; for it is not material which of them doth begin the
Union, if the Words be ſufficient, although that the Ordinary be the
principal Agent; for that he faith, Unimus, and hath the Cure of the
The Civili- Souls. Roll's Abr.p: 778. But the Civilians, Doctor Stecard, and
ans Opinion. Doctor Crompton, agreed, that by the expreſs Text of the Canon-
Law, the Ordinary, with the Patron's Affent, might have made an
Union of two Churches, although either of them were worth One hun-
dred Pounds per Annum, and ſufficient to maintain a Miniſter by it
ſelf, and that ſuch Unions might have been made, without the Pope's
Confirmation : And by Steward, if an Union had been unlawfully made,
by the Pope's Confirmation, it had been for ever good ; and ſuch Au-
a pre-
tended Pote thority as the Pope had, the King now hath by the Statute : But
Crompton ſaid, That an Union made upon-a ſuppoſed and pretended
Poverty, which appears to be falſe, and the Ordinary
. to be deceived,
is void; and ſo if a Surmiſe be, that the two Churches be diſtant but
one Mile, that there are but few Inhabitants, and that one of the
Churches is in Decay , the Surmiſes being falfe, the Union is void ; and
if the Inhabitants of one Pariſh doth ſue in the Spiritual Court, to
compel thoſe of the other Pariſh to come to their Church, a Prohibiti-
Mich. 9. and on lies. Mich. 9, 10 Car. Sir Robert Mordent and Dobſon's Cafe.
Lo Car. the Roll's Abr. p. 2. 778. However, the Court at length agreed, That
what Unions ſuch Unions as might have been lawfully made before Statute 37. H.
8. C.. 21. may at this Day be made, and that fuch Authority is not ta-
ken away, nor reſtrained, but limited what Union may he made without
Affirmative. the King, becauſe the ſaid Statute is in the Affirmative, and not with
a Negative, and then a Statute never takes away the Common-Law.
33 H. 8. Dyer 50. 4 and's Philip and Mary, Dyer 135. And ſo the
Way of uniting Churches at Common-Law, before the Statute, remains
good at this Day. Trin. 37 Eliz. Auftiii v. Iwyne. 3 Cro. 500.
Roll's 2 Abr: 778, But Moor 661, reporting the ſame Cafe, ſays,
that it was agreed, That if one of the Churches be not of the Value of
8 l. per Annum, or under, no Confolidation can be made after the
Statute 37 H. 8. but the Report according to Croke is more to be
relied
on, for what Moor reports here as the Reſolution of the Court
ſeems to be only the Opinion of Popham, who did hold that Opi-
nion contrary to the other Judges, but he after ſeem'd to waive his
Opinion, and conſented to the Judgment. Hobart declares his Opinion.
That if a Man hath one Benefice with Cure, of the yearly Value of
Diſpenſati- 8 l. or above, he cannot, without Qualification and Diſpenſation, pro-
cure another with Cure to be united to it after, though they make but
one Benefice, and this by reaſon of the Statute 21 H. 8. c. 13. Colt and
Glover's Cafe. Hob. 158. But I rather think, that the Statute is not
Unions for prohibitory of perpetual Unions, but hath reſpect to temporary Uni-
Life, Sc.
ons only, as for the Life of one Incumbent, which the Archbiſhop may
make, and fometimes hath made. Mich. 41 El. Queen v. Page and
4
Churches
nay be.
Statutc in the
on.
Chap. XVI. The Complete Incumbent.
185
Clauſe.
Churches in
ons.
II H.
7
Churches are not ſo much united together, as that the Inhabitants of Union of
Churches.
the one Church ſhall be compelled to hcar Divine Service, &c. in the
other Church, as united in the Incumbent; but only that the Incum-
bent hay
have the Profits of both, and provide for the Cure of both
during his Incumbency, and the Churches do remain diſtinct Cures,
notwithſtanding, and after the preſent Incumbent's Title ceaſeth, ſhalí
be capable of diſtinct Incumbents again, as formerly.
The Clauſe in the faid Statute, 17 Car. 2. c. 3. which provides, Q of this
That all Unions, and every of tijem, hereafter to be made in cozpojate
Towns, without the Coulent of the MagiCrates, thall be clearly void;
any thing before expregled, 02 any Didinance, Law, Cuſtom od Statute,
to the contrary thereof in any wiſe notwithltanding; ſeems to me to
extend to all Unions whatſoever that ſhall be made, viz. as well to
thoſe which ſhall be made with the King's Confirmation, as unto
thoſe that ſhall be made according to the Direction of this Statute,
becauſe the Words thereof are general, and with a Non obſtante.
(Quære.)
If the Churches, or Church and Chapel, be in two Dioceſes, both If two
Ordinaries muſt concur to niake the Union. II H. 7.f. 8, and 26. in one Dioceſe.
Grendon's Caſe. Plow. 497. b. and ſo muſt both Patrons in all Uni-
8. 6 H. 7. 13. 46. Al. Pl. 4. 50 E. 3. 26. 48 E. 3.
28. And if either of the Patrons be a Biſhop, the Aſſent of his Dean and
Chapter muſt be alſo had. Pafch. 10 Car. B. R. Leigh and Hellier's
Cafe. Roll's Abr. 2. p. 357. That Unions may be made of Churches
in Cities and Corporations, according to Stat. 17 Car. 2. the Patronage
whereof belongs to Biſhops, ſeems to be warranted by the faid Statute;
but 'tis a Doubt whether ſince the Stat, i El. any Union can be made
of other Churches not within a City or Corporation, the Patronage of
which is belonging to a Biſhoprick, ſo as to bind the Succeſſor, al- Q. If Biſhop's
though the Conſent of the Dean and Chapter be had, and it ſeems that Succeffor
it cannot, for although this Cafe reported by Roll's, ſeems to admit
that ſuch an Union is good, the Dean and Chapter conſenting, yet it
appears not but that the Caſe was before the Stat. i Eliz. for 'tis faid
by the Report to be before the 13 Eliz.
A Church may be united unto another, before it be void, if the Unionbefore
Words be proper for that purpoſe, and he that hath the Church to united is
which the other is united, may enter into the Church fo united, when void.
it doth become void, without any other Donation or Induction, as was
done, when a Chapel being full was united to Magdalen-College in
Oxford. 11 H. 7, 8. yet it is faid, that an Union ought to be made
when the Church is void, or elſe the Union is void, and that the Law
is the ſame as an Appropriation, by Keble Br. Abr. Appropriation, &c.
Appropriati-
5. For an Appropriation may be made by apt Words, when the Church on:
is full, viz. by Words which may ferve to appropriate it after it be-
comes void. Grendon v. Biſhop of Lincoln, &c. Plowden 499. b.
That Unions may be made when the Churches, or one of them are
full, purſuant to the before recited Statutes, appears by the expreſs
Words of Stat. 17 Car. 2. and is implied in the Words of Stat. 37
H.
8. where the Conſent of the Incumbent is directedto be had in ſuch
Unions. If the Patron of the Rectory of A. having purchaſed the Ad-
vowſon of the Rectory of B. and at all Times after hath preſented to
the Church of A. cuin Campella de Boyet ſuch Preſenting 'Time out of Where Pre-
Mind, ſhall not make, or have the Effect of an Union, but the Church ſentation
of B. ſtill remains a diſtinct Church, and ſhall go in Lapſe notwith-
ſtand-
bound.
makes no
Union.
Nn
186
The Clergy-Man's Law: Or, Chap. XVI.
Tentations,
remaineth.
Prebend to a
Union ce ſtanding ſuch Preſenting, and thic Frechold thercof will be in Suſpence,
Churches.
and not in the Patron as Diſſeiſor; for the Patron's Entry in the Vaca-
tion doth not gain any Freehold. Savile, f. 17. Cafe 45.
Appointment
Upon an Union made, it muſt be appointed who ſhall preſent next
for the Pre- after the ſaid Union, one of the Patrons, or both, or jointly, or feve
rally by Turns, and upon ſuch Union and Agreement made by Inſtru-
ments or Writings, under the Hands and Seals of the Patrons, Ordina-
ries and Incumbents, (if the Churches be then full) each of the Patrons,
if he be diſturbed, may have his Quare Impedit. And altho' by the
Union the Incumbency of one Church be ſoft and extinguiſhed, yet
Patronage
the Patronage doth remain ſtill in Being; and therefore if an Annuity
be granted out of the Church of B. and afterwards the Church of B.
is united to the Church of A. if the Grantce of the Annuity doth re-
lcaſe to the Patron of the Church of A. the Annuity is not thereby cx-
tinct, but a Releaſe to the Patron of the Church of B. will extinguiſh
the Annuity. Parfoti's Law 272. Yet if a Writ of Annuity for the
Recovery of this Annuity be brought againſt the Incumbent, he muſt
be named Incumbent of the Church of A. to which the Church of
B. is united, and not of B. for that there is no ſuch Church in Being.
Deanery.
11 H. 6. 33. a. 14 H. 6. 14. b. If the Poſſeſſions of a Prebend be
united unto a Deanery, yet the Prebend it ſelf remains in Being as to
the Office, and as diſtinct from ſuch Deanery. Dyer 10 Eliz. 273.
Church unto But if a Church Parochial be duly united unto a Prebend in a Cathe-
dral Church by the Biſhop, &c. and a Clerk is collated to the Prebend,
and after inſtalled in the Cathedral, although that the Pariſh Church
be not in the ſame Dioceſe with the Cathedral, yet the Clerk thereby
hath Poſſeſſion thereof, without any Preſentation, Inſtitution or Indu-
ction, becauſe by the Union, the Pariſh Church is become the Corps
of the Prebend. Paſchi 10 Car. B. R. Leigh and Hellier's Cafe.
Roll's Abr. P. 2. p. 357. And a Chapel it ſeems may be united to the
Preſident and Scholars of a College and their Succeſſors, as was agreed
Chapel to a
College. by all except Townſend, who ſaid, that a Thing united, ſhall be uni-
ted to a Thing of the fame Nature ; and the Chapel and College be-
ing dead Things, might therefore be united, but not a Chapel to the
Preſident, &c. Br. Appropriation, &c. 9. After an Union is made, if
any Queſtion doth
ariſe concerning the Validity thereof, this may not
Tryalin Spí- be tried in the Temporal, but only in the Spiritual Court, unleſs
ritual Court ſuch Union as is reſtrained by the Statutes aforeſaid. Trin. 37 Eliz.
Auſtin v. Twyne, 3. Cro. 500.
By the Union of two Churches Parochial, the Pariſhes were not
thereby united, but reniained diſtinct as before; and the Reparation al-
Pariſh uni- fo continued to be ſeveral, Hob. 67. But by the Statute. 4 and 5 W.
and M. c. 12. the Pariſhioners of the Church united, are made Con-
tributory to the Repairs and Ornaments of the Church to whom the
Union is made. The Words of which Statute are as followeth:
a Prebend.
ted to the
Contributo-
ry to Re-
pairs, c.
4 & 5W. &
M. c. 12. for
towards
Tuihereas hy an act of Parliament, made in the Seventeenth Bear
contributing of King Charles the second, of Bleſſed Memory, Proviſion was made
foz the uniting Churches in Cities and Towns Copojate : and folal.
Repairs, &c much as it is highly realonable that Parfthioners of Parithes whole
Churches are demolithed, and either before of afterwards united to 0:
ther Churches, thould bé Contributors towards the Repairs and other
Parochiat Charges of ſuch dther Church, to which by Aertue of the
ſaid ga they are united :
There.
2
Chap. XVI. The Complete Incurnbent.
187
Cherefore be it enaĉed, by the King and Queen's mod Ercellent Winion of
Churches.
gajefties, by and with the advice and Conſent of the Lolds Spiritu-
al and Temporal, and Commons in this preſent Parliament aſſembled,
and by the authority of the ſame, Chat where any Churches hereto:
fore have been, 02 bereafter thall be united by Uertue of the ſaid a&;
and one of the Caio Churches lo united, was at the Time of ſuch a
nion, od fall afterwards be demoliſhed ; that in all ſuch caſes, as
often as the Church which was oz Thall be made the Church Preſenta:
tive, and to which the Union was od thall be made, ſhall be out of Re:
pair, oz there ſhall be need of decent Dinaments for the Performance
of Divine Service thereill; that the Dariſhioners of the Parifi) whole
Church) ſhall then be down 02 demoliſhed, fhall bear and pay towards
the Charges of ſuch Repairs and decent Dinaments, ſuch Share and
Propoztion as the Archbiſhop of Bidhop that thall make ſuch Union,
thall by the Came Union direa and appoint. And for want of ſuch Dis
region and Appointment, then one Third Part of ſuch Charges of the
Repairs and decent Dinaments which thail be made od provided ; and
the ſame ſhall be Rated, Tared and Levied, and in Default thereof,
fuch Proceſs and Proceedings ſhall be bad and made againſt bini o?
them, as if it were for the Reparation and finding decent Dinaments
for their own Pariſh Church if no ſuch Union had been made ; any
Law Cuſtom, Wage od Dpinion to the contrary heretofore notwith-
ftanding. 4 and 5 W. and M. cap. 12.
But this Statute extends only Extends on-
to Unions made by Vertue of the Statute 17 Car. 2. as appears by the ly to Unions
expreſs Words of it, ſo as to Unions made in other Cafes, the ſame by 17 Cat. 2
ſtiit remains as it was, viz. the Pariſhioners of the Church united are
not Contributary to the Repairs and Ornaments of the Church, to
which the Union is made, according to Hobart 67, neither can they, I
ſuppoſe bury their Dead there, but muſt provide Burial-Places for them-
felves, as before the Union made.
To the foregcing may be added the following Obſervations, viz.
1. That the Common Law of Unions was not altered by the faid
Staute of 37 H. 8. and 17 Car. 2. And therefore in the Caſe of Au- 1 Cro. 500,
ſtin, and Twyme, where the Queſtion was concerning the validity of a &c.
Union of two Benefices, one of iol. the other above 8 l. per Annum,
and it was adjudged a good Union, though not within the Statute.
For Unions might be made (as before) according to the Common
Law
2. By the Canon Law, the Union or Conſolidation of Churches
ought to be founded upon good and canonical Reaſons, ſuch as prop-
ter Hoſpitalitatem, propter vicinitatem Locorum, proptir Parochiano-
tum defectu1, or propter poupertatem ſeu exilitatem, which Circum-
ſtances by their Law are ſpecially to be enquired into before the
Union.
3. The Union is the Act of the Biſhop or other Superior. This is ac- Cod. 961.
cording to the Definition, Unio eft Beneficiorum ſeu Ecclefiarum ab E-
piſcopo vel alio Superiore fačta annexio. And therefore in the faid Cafe
of Auſtin and I wyne, though the Affent of the Patron and Confirmati-
on of the Queen, came after the Union, 'twas adjudged good. And the i Cro. 501.
Reaſon why Conſents are uſually taken before, is ſaid by Biſhop Gibſor
to be the Fitneſs, but not the Neceſſity of the Biſhop's having a previ-
ous Aſſurance of the Giving that, which not being given, would make Cod. Son
his Act void, and of no Effect. But to the Patron's Aſſent muſt be
alſo added, that of the preſent Incumbent or Incumbents, and if
tha
Nn 2
188
The Clergy-Man's Law: Or, Chap. XVI.
1 Cro. Solo
Union of the Churches be in two Dioceſes, there muſt be alſo the Aſſent of both
Churches. Ordinarics.
4.
The Conſent of the King is not neceſſary to an Union. So the
Civilians on both ſides agreed in the ſaid Caſe of Auſtin and Twyne.
viz. That by the Canon Law, the Ordinary with the Patron's Aſſent
might have made (and ſtill may make) an Union of two Churches,
though each were a ſufficient Maintenance by it ſelf. And the Reaſon is
becauſe this being an Act of a Spiritual Nature, was left to the Difcre-
tion of Spiritual Judges ; and therefore when it was there alledged a-
gainſt the Union, That it was made upon a pretended Poverty which
appeared to be falſe, &c. the Court ſaid they were not to difpute the
Validity of the Union, which would come in Queſtion in the Spiritual
Court.
And as to any Right which might be ſuppoſed to accrue to the
Crown from the Exerciſe of Papal Authority, let a Papal Declaration
(being part of the Canon Law) determine it. Sicut unire Epiſcopatus
atque ſubjicere poteftati aliena ad fummum pontificem pertinere dig-
noſcitur, "Ita Epiſcopi eſt Ecclefiarum fuæ Diæceſis unio & fubjetio
earundem; conſonant to which the Biſhop hath frequently united by
his own Authority without any Interpoſition of the Regal.
Plow. 499.5. 5. Unions in futuro as well as in preſenti are good, and therefore if
two Churches are full, and one is duly united to the other in futuro,
when either ſhall become void, the ſurviving Incumbent may enter up-
on the void Living without any other Title than that, which he recei-
ved from the Act of Union. So that the before recited Statute of
17 Car. 2. is in this reſpect exactly modelled according to the Rule of
the Common Law.
Dy. 259.b. 6. By the Union of two Churches, no Change is made in the Advow-
ſons, i. e. not only all Rights are reſerved to the Patron or Patrons as
before, but the Nature of the Advowſons continues the fame, as if one be
appendant, and the other in groſs, and that which is appendant, is made
to the preſentative Church, and the Patron of the Church in grofs hath
the firſt Turn,yet ſhall not the whole Advowſon be in grofs, but it ſhall
remain appendant for his Turn, who was Patron of the Advowſon ap-
pendant, and in groſs for his Turn, who was Patron of that in grofs
.
And therefore the Doubt ſeems unreaſonable, whether Biſhops and o-
ther Ecclefiaftical Perfons can conſent to a Union by the Statute i Eliz.
and 13 Eliz.
7. By the Union the two Churches are become ſo much one, 'That a
fecond Benefice may be taken by Difpenfation within the Statute of
Pluralities, and in the Caſe of Page and the Biſhop of London 'tis alſo
faid, That by Union in the Statute of Pluralities, is to be meant not
a perpetual, but a Temporary Union, &c. See Quære.
8. "Two Churches Parochial being united at Common Law, the
Hob. 07.
Reparations ſhall remain ſeveral as before ; which was the Reaſon why
the before recited Act of Parliament 4, 5 W. M. was found neceſſary to
make it otherwiſe as to Churches that had been, or ſhould be united in
Vertue of the Stat. 17 Car. 2. for before that, the Inhabitants even of a
deinoliſhed Church were not obliged to contribute to the Repairs or
Charges of the other Church. And Vide 1 Salk. 165. and 3 Salk. 89.
and Holt, &c. at Common Law, Union of Churches might be by Con-
fent of Parſon, Patron and Ordinary. (But not a Union of Pariſhes)
and where two Churches are ſo united, there is but one Parſon to both,
yet the Churches remain two, and fo do the Patronages and Pariſhes.
i Cro. 720.
I
But
Chap. XVII. The Complete Incumbent.
189
tions.
But where an Union is by Act of Parliament of two Pariſhes, there appzopzias
fhall be a Contribution towards Repairs, &c. becauſe one of the Pa-
riſhes is thereby Extinct, and both Patrons preſent but as to one
Church, tho? 'tis alternis vicibus.
C H A P. XVII .
Of Appropriations ; and of Vicarages and
their Endowments.
TH
HE fecond extraordinary Way or Means, by which a Title to
2. Appropri-
an Eccleſiaſtical Benefice may be had, is by procuring an Appro- ations.
priation to be made of a Benefice to an Eccleliaſtical Perfon and his
Succeffors, of ſome Church Preferment of which he is poffeffed. An
Appropriation can be only made to a Body Politick or Corporate Spiri-
tual that hath Succeſſion, and thereby that Eccleſiaſtical Body is per-
petual Incumbent of the Benefice appropriated, and for ever ſhall enjoy
all Glebe, Tythes, and other Profits belonging thereto, and hath there-
with the Charge of the Souls belonging unto the Pariſh where the
Church appropriated is; upon which it is, that an Appropriation regu-
larly ought only to be made to a Spiritual Perſon, or at moſt, to ag- To Spiritual
gregate Bodies Spiritual that conſiſt of Prieſts; in that there is no Dif- Perſons.
ference betwixt a Church Appropriate and not Appropriate, ſaving that
a Church appropriated is annexed to the Corporation or Perſon to whom
it is appropriated, and his or their Succeſſors for ever; but a Church
not appropriated, is had only for the Life of the Incumbent thereof;
and therefore, thoſe that have Appropriations, can no more grant their
Title of Appropriation to others, whereby to make the Grantecs be- Not granta-
come perpetual Incumbents of them as Appropriators, than Incumbents ble over.
of Churches prefentable can convey by their fole Act their Incumben-
cies to others; but both may equally make Leaſes of the Profits Leaſes may
thereof.
To the making of an Appropriation, it is requiſite; Firſt, that the Requiſites to
Right, Title and abſolute Inheritance of the Advowſon of the Church the making
Appropriate, be in ſuch Spiritual Bodies Politick or Corporate to
an Appro-
priation.
whom the Appropriation is made, and who thereby is to be perpetual
Incumbent of the Church, for otherwiſe ſuch Spiritual Body is not ca-
pable of the Appropriation. If one (as a' Church-man) being a Spiri-
tual Corporation, is feiſed of an Advowſon, to him and his Heirs,
doth purchaſe Licence of Appropriation, and gets the Church appropri-
ated to him and his Succeffors, the Appropriation is void, and the Ad-
vowſon will deſcend to his Heirs : For in this Caſc, if he would have
the Church to be appropriated to him and his Succeffors, he muſt firſt
alien it to another, and then, after Licence of Mortmain, repurchaſe
it to him and his Succeſſors
. Hugh's Abr. Title Appropriation: 38 H. Alienation
6.21. a. Br. Abr. Appropriation, &c. 3. 14 H. 4. 14. And if the King of Mort-
doth grant to a Spiritual Corporation, to hold a Church to their proper main.
Uſe for ever, of which Church the King himſelf is feiſed of the Ad-
vowſon at the Time of the Grant made; this ſhall not enure to a Grant
of
be.
190
The Clergy-Man's Law : Or, Chap. XVII.
tions, Eco
* King's
ry.
K. William
Patron's
3. 26.
alſo cvery
Appzonzias of the Church or Advowſon, and then to an Appropriation, but the
King is deceived, and the * Grant is void. Roll's Abr. 2. p. 196.
It is alſo requiſite, that the Conſent of the Ordinary be had thereto,
grant void who in Law is looked upon as the principal Actor, becauſe the Act
the Ordina. of Appropriation is a Thing Spiritual, and the Ordinary hath the Spiri-
tual Juriſdiction ; and it is alſo ſaid to concern the Souls of the Pariſhi-
oners, of which the Biſhop within his Dioceſe hath Charge ; alſo the
Biſhop hath an Intereſt in reſpect of Lapſe. Roll's Abr. 1. p. 238. 6 Ed.
3. Qziare Impedit 197. And that which the Biſhop as immediate Or-
dinary may do, the Pope as ſupream Ordinary uſed to do without the
Biſhop; and fuch Authority and Juriſdiction as the Pope had uſed
within this Realm, our Kings have, as was acknowledged by Parlia-
ment, Anno 25 H. 8. and other Statutes ; ſo that the King may uſe and
cxerciſe all that Power that the Pope was wont to uſe within this
By the King Realm, and by Conſequence may make Appropriations without the
without the Biſhop; yea, and the King alone, as ſupream Patron, might have made
Biſhop.
Appropriation without the Pope. 17 Ed. 3. Fitz. Quare Impedit 19.
11 H. 4. And yet it is ſaid that an Appropriation made by K.William
Conqueror. the Conqueror alone, is not good. 7 Ed. 3. Quare Impedit 19. How-
ever, neither Biſhop or King can makc Appropriations without the
Conſent ne- Conſent of the Patron, who ought to agree to the Appropriation to
ceffary.
make it good. 11 H. 7, 8. 6 H. 7. 13. 46. Al. p. 4. 50 Ed.
40 Ed. 3. 28. 29 Ed. 3. 10. and his Acceptance of the Ordinary's Or-
der, and his Execution of what he hath ordained, is a Declaration of
his Conſent, and all ſhall be intended to be done at his Requeſt, and
not only he who is feiſed of the Inheritance of the Advowſon, but
other Perſon who hath any particular Eſtate or Intereſt
in it, ought to conſent to the Appropriation, elſe are not to be bound
by it, nor by the Conſent of him who hath the Inheritance : There-
fore if there be a Leſſee for Years of an Advowſon, the Aſſent of him
in Reverſion to appropriate the Church, will not bind the Leflee for
Years during his Term. 29 Ed. 3. 10.
King's Con-
But beſides the Ordinary, and Patron, the King, (not only as ſupream
fent requi- Ordinary, but as King) muſt conſent to every Appropriation of a
Church. Mich. 16 Jac. B. R. Popham 145. Mich. 1649. Style, p.
156. Stat. 15 R. 2. cap. 6. Stat. 4 H. 4. cap. 1 2. Becauſe his Intereſt
is concerned therein, all Advowſons being held of the King, either
mediately or inmediately, as all Land within this Realm is, and all
Poſlibility of having cither Preſentation or Efeheat, as Lord inimedi-
ate, or nicdiate, or Lapfe as fupream Patron, is taken away by Appro-
priation, in regard that the Church can never after be void of an In-
cumbent. Hill. 44 Eliz. Robinſon v. Bedle, 1 Cro. 873. And his Con-
By Licence.
ſent of the King muſt be declared by his Licence, and the King can-
not make ſuch Licence without Matter of Record, and it ought to be
with a Condition to endow a Vicar. Mich. 1649. Style p. 156. And
Note, That the King's Licence of Appropriation is to be made to the
Body Spiritual, to which the Church is to be appropriated, and not to
the Biſhop, óc. and is to be made generally, Priddle and Napper's
Ciſc. 11 Co. II B. For tho' the Rector be alive at the Time of the
Licence, yet he may die or reſign before the Appropriation is made.
Biſhop of Canterbury's Cafe. Trin. 38 El. B.R. 2 Coke 47. And it
is ſaid, that an Appropriation may be made by the King alone, where
hc is Patron, but by no other Patron. Trin. 16 Jac. B. R. Pophan12
145.
fire
To whom,
I
If
Chap. XVII. The Complete Incumbent.
191
017, Soc
Licence.
499; fo if
1
If
any Appropriation be made without the King's Licence, it hath drpzovziatis
been held the Appropriation is good, not Mörtinain.
21 E. 3. 5.
Ploced. 199. 47 E. 3. 11. And by Jones, Paſch. 2 Car. B. R. Capis If witholit
1. Bedford, Palmer. p. 406. But the King may ſeize the Advowion, the King's
and ſhall have the Preſentments to the Avoidances thereof in the Name
of a Direfs until Fine be paid to the King for making the Appropri-
ation without his Licence, by the Opinion of Shard. See Ploud. til Finc paid.
any
Prebend be divided into ſeveral Parts without the King's
Licence, the Patronage thereof ſhall be forfeited to the King, and this
was certified to be the Law, and Right of the Crown. Mich. 15 E. 2.
146. but Quære; and by Stone, if the Advowſon of the Church appro-
priated, be held of the King as of his Crown, or as an Efcheat, the
Charter that doth not mention of what Tenure it is, ſhall be void, Where the
and the King ſhall not be barred of his Preſentment thereby. 19 E. 3. Tenure
Fitz. tit. Grant 58. But if an Abbey had been feized of an Advowſon ought to be
mentioned
in Fee, held of a common Perſon, an Appropriation might have been
made thercof to them by the King and the Ordinary, without the Af-
fent of the Lord to whom it was held, 21 E. 3. 5. Br. Abr. Appro-
priation, nu.6.
The moſt proper Time for the making of an Appropriation, is when the moſt
the Church is void, becauſe then it may be executed preſently; yet proper Time
the Parties aforeſaid concurring thereto, an Appropriation may be made of making,
as well when the Church is full, as when it is void; that that if it
be made by ſuch apt Words as ſhall ſerve to appropriate it after it is
void. Co. 11. Priddle and Napper's Cafe. 11 Plowd. 499.
3. 26. B. and 27. As to ſay, that the Patron who is a Spiritual Per-
fon, after that the Church ſhall become void, ſhall be Parfon, and may
retain the Glebc, and the Profits of the Church to his proper Ufe, &c.
and ſuch Patrons ſhall be taken to be Incumbents, without any other
Admiſſion or Inſtitution, and may enter upon the Profits of the Church
without Induction, but if ſuch Appropriation be not made by Words in
futuro, it is void.
So if a Spiritual Corporation bé feiſed of an Advowfon in Fce, and
the Church being full of an Incumbent, the King doth give Licence
to appropriate it, without any Mention of the Incumbent, and after the
Ordinary doth appropriate it accordingly; ſo that'after the Death of the
Incumbent, ſuch Spiritual Corporation and his Succeſſors may hold It General li
to their proper Uſes. In this caſe, altho' the Licence of the King be cence fup-
general without Mention of the Incumbent, yet the Appropriation bei plied, by ape
ing afterwards well made, viz. by proper Words, this is a good Li- Appropriati-
cence, and a good Appropriation. Co. 11. Priddle and Napper ir. on.
Mich. 16 Car. B. R. Foe and Hafellrigg's Cafe. Roll's A'r: 1. p. 239.
Or if the King doth give Licence to a Spiritual Corporation to purchaſe
the Advowſon of a Church in Fee, and to appropriate it to him and his between the
Incumbency
Succeſſor ; and then he having purchaſed the Advowſon, doth preſent Licence and
his Clerk to the Church, who is inſtituted and inducted, if afterwards
Appropriatie
the Biſhop doth appropriate the Church to him and Succeſſors
, this is à
good Appropriation, notwithſtanding the Preſentation made by the
Purchaſer, upon which an Incumbency was had betwixt the Licence
and the Appropriation. Mich. 16 Car. B. R. Foe and Haſellrigg's Cale.
Roll's Abr. 1. p. 239. For moſt of the aforeſaid Points of Law cons
cerning Appropriations, See Grendon's Cafe, Mich. 18 and 19 Eliz.
Plouden 499, c. By which Cafe in Plowden it appears, That if the
King being feiſed of an Advowfon in Right of his Crown, doth by his
Let-
on.
Plowd. 499.
192 The Clergy-Man's Law: Or, Chap. XVII .
Our Coc.
an Adyow-
fon:
:
On.
Inſufficien-
cy.
7 ppzopziati. Letters Patents grant to a Dean and Chapter the fame Acvowſon, when
thc Church is full; he may alſo in the fanic Letters Patents, by his
King grants ſuprcam Eccleſiaſtical Authority, for himſelf, his Heirs and Succcííors,
grant, and give Licence unto the fame Dean and Chapter, and their
Succeſſors, to hold the Rectory of the ſaid Church immediately after it
becomes void to them and their Succeſſors for ever, without the Mc-
leſtation of the King or his Succeſſors ; and without any Preſentation,
Inſtitution or Induction of any Incumbent to the faid Rectory at any
Time after: And further, by the ſame Letters Patents, by his ſupream
Authority aforeſaid, for himſelf, his Heirs and
Succeſſors, he may ap-
Alſo with an propriate the fame Church to ſuch Dean and Chapter, by the Words,
Appropriati-
Inz Rectorian & Ecclefiam de B. prædiť, prout cacare extunc comitige-
rit, ac omnia & ſingula Maneria, MeJuagia, Glebas, Decimas, &c.
eiſdem Decano o Capitulo & Succefloribus ſuis, ac dictæ Ecclefia (148)
Cathedrali Appropriamus; Conſolidamus, Unimus 6 Incorporamus.
Habendum, gaudendum, de concertendum eaſdem RcEtoriam, & Eccle-
fiam de B. predict', ac omnia & fingula premiſa iiſdemn Rectoria, &
Eccleſia ſpectant & pertinent' iiſdem Decano & Capitulo, & SucceNo-
ribus suis ut pradi£t eſt in proprios ufus (105, abſque aliqua Praſanta-
tione, Nominatione, Induftione, ſive Admiſſione alicujus Incumbentis,
aut aliquorum Incumbentium ad eandem Eccleſiam extunc impoſterum
Objection of fienduin, &c. But Dyer objected in this Cafe, That theſe Words are
inſufficient to make an Approbriation, for that they do not make the
Dean and Chapter Parſon of the Church, but that it ſhould have been
faid, That after the Church ſhall be void of the preſent Incumbent, the
Dean and Chapter ſhall be Parſons thereof, inaſmuch as in Suits brought
by and againſt them, they ought to be named Parſons. But it was
anſwered, that the Words aforefaid do imply as much; and Hobart faith
that it was refolved in this Cafe, that the perfect Word to make an
The perfeet Appropriation, is to make him Parſon, yet if the fame be expreffod by
a Periphraſis like thereunto, this will ſerve, Colt and Glover's Cafi', Ho-
bart 148, 307. It was alſo objected by Dyer, that there was not r the
Grant of the Advowſon to the Dean and Chapter, the Clauſe of N:12
obſtante the Statutes of Mortmain ; and the King's Grant cannot be
taken to two Intents, as agreed in the Affize, inter Baget and Swirint-
9 Ed. 4. fo. 6.11. To which it was anſwered, that the Claule
Non obſtante. of Non obſtante was in the Patent, though not pleaded, and that the
Patent had been however good, becauſe the King being the Head of
the Law, is not to be ſuppoſed ignorant of the Law; and the Patent is
Ex certa fcientia, which amounts to ſuch Clauſe, and the King's Grant
may enure to two Intents, unleſs one be a Foreign Matter, and there-
fore the Giving Lands to a Villein by the King ſhall not manunit him
and Judgment was given that the Patent was good : However, it is
Safeſt way. fafeſt, that it be exprefly faid, that he to whom the Church is appro-
priated, ſhall be Parfon, and that in all Grants of Advowfons from the
Crown to any Spiritual Parſon and his Succeſſors, the Clauſe of Nor
obſtante that Statute be inſerted, or that a Precedent Licence be had,
and that theſe Matters be pleaded when any Action is brought concern-
Guardian, ing the fame. If the King had given Licence to a Guardian and Chap-
lains of a Chantery, to purchaſe an Advowſon to them and their Suc-
Chantery.
ceffors, and to have it appropriated to them and their Succeffors; and
afterwards the Biſhop doth appropriate it to the Guardian of the Chan-
tery and his Succeſſors; if the Chantery had been known as well by
the Name of the Guardian and Succeffors, as by the Name of the
Guar-
Word is to
make him.
Parſon,
ton.
Esc. of a
Chap. XVII. The Complete Incumbent
193
€11001?.
Vicar be well
2. c. 6.
Guardian, Chaplains and Succeſſors, and ſo all one Corporation, this Vicarages
is a good Appropriation. Mich. 16 Car. B. R. Foe and Haſellrigg's
Cafe. Roll's Abr. p. 240. But 21!ære, how a Corporation aggregate,
and a Corporation Solc, may be one Corporation Politick.
That an Appropriation be duly made, it is neceſſary that a Vicar be It is neceſſa-
well and ſufficiently endowed; for it hath been Enacted as followeth, ry that a
Item, Becauſe divers Damages and pindances oftentimes have hap: endow'd, c.
pened, and daily do happen to the Pariſhioners of divers places ty Stat. 15. R.
the appropriation of Benefices of the ſame places : 'Jt is agreed and
allented, That in every Licence from hencefogth to be made in the
Chancery, of the appropriation of any pariſh Church, it thall be ec-
predly contained and compriſed, that the Dioceſan of the Place, uport
the appropriation of ſuch Churches ſhall oưdnin, accouding to the Aalue
of ſuch Churches, a convenient Sum of money to be paid and diftri.
buted yearly of the Fruits and Profits of the ſame Churches by thoſe
that will have the ſaid Churches in proper Ale, and by their Succeſs
Cors, to the poor Pariſhioners of the ſaid Churches, in aid of their
Living and Suſtenance for ever; and alſo that the ticar be well and
ſufficiently endowed.
And it was afterwards ordained, by 4. H. 4. C. 2. That the Statute 4 H. 4. C. 13.
of appropriation of Churches, and of the Endowment of Ticars in For Refor-
mation of
the ſame, made the Fifteenth Year of King Richard the Second, be
Appropriati.
firmly holden and kept, and put in due Erecution: and if any Church ons.
be appropriated by Licence of the ſaid King Richard, Od of our Loid
the King that now is, lithence the Caid Fifteenth year, againſt the
Foam of the ſaid Statute, the Came fail ve duly reformed accoding to
the Effect of the Came Statute betwiſt this and the Feaſt of Eaſter
nert coming, and if fuch Reformation be not made within the Time
aforeſaid, that the appropriation and Licence thereof made be void, and
utterly repealed and annulled for ever, ercept the Church of Hadenham,
in the Dioceſe of Ely ; which fod to eſchew divers Damages, Diſcous,
and Debates, that have been before this time betwirt the Bilhop of
Ely, and the archdeacon of Ely, lipon the Ererciſe of their Jurisdicti:
on (as it was openly declared by the ſame Bilhop, in the Preſence of the
king, and Lords in Parliament) was of late appropriated by the Licence
of the King our Lord, to the archdeacon and his Succellois to do Di-
vine Service, keep yoſpitality, and to ſuppoqt other Charges as per-
taineth. zoreover, it is ojdained and ſtabliſhed, That all the Wica:
rages, united, annered of appropriated, and the Licences thereof bad,
after the firſt year of the ſaid King Richard, how well loever that they
which have united, annered or appropriated ſuch Uicarages, be in pol
Ceſtion of the ſame Wicarages, oz by Uertue of ſuch Licences may in a
ny wiſe be in potlellion of the ſame in any Time to come, they fall ve
allo utterly roid, revoked, repcalcd, adnulled and diſappropried fou ever.
and that from hencefo2th in every Church ſo appzopzied od to be ap-
propried, a ſecular Perſon be ozdained Ticar perpetual, canonically in
ditute and induct in the ſame, and convenably endowed by the Dils
cretion of the Didinary to do Divine Service, and to infoun the peo:
ple, and to keep hoſpitality there, (ercept the Church of Hadenham
afozelaid.) and that no Beligious be in any wiſe made Uicar in any
Church ſo appzopzied, ož to be appropried by any means in Time to
come
Oo
It
194
The Clergy-Man's Law: Or, Chap. XVII.
.
King > Li-
cence with
Condition to
car.
Affent of
Patron to
create a
Vicarage.
crcated.
Vacation-
time.
Who is Pa-
Uicarages, It is ſaid, that when the King doth make a Licence for the Appro-
priation of a Church, it ought to be with a Condition to endow à Vi-
car, and that the Endowment of the Vicar may be by diſtinct Inſtru-
ment of the Appropriation, ſo that it be made at the fame Time with
endow a Vic the Appropriation. Mich. 1649. Styles p. 156. But though the King may
not make ſuch a Licence without the aforeſaid Condition, yet the Par-
ſon appropriate (becauſe he muſt be Parſon and Patron both) with the
Ordinary, may create a Vicarage, and endow it without the Aſſent of the
King, altho' that the Vicar ſhall be a Corporation, becauſe he is a Cor-
poratìon by the common Law. Roll's Abr. 2.p. 334.8 R. 2. Annuity 53.
Contra. 17 Ed. 3. 51. 3. E. 2. 74. But the Ordinary cannot create a
Vicarage without the Affent of the Patron. 16 Ed. 3. Quare Impedit
145. 5 Ed. 2. Quare Impedit 195, and Paſch, 16 E. 3. Monſtrans de
Faits 166, per Par. So if a Dean and Chapter, or other like Corpora-
tion, as Nuns, &c. be Parſons appropriate, they may with the Ordina-
ry create a Vicarage, although they themſelves have not the Cure of
Vicarage
Souls. Grendon's Cafe, Plowden 497. And if the Appropriation be
duly made when the Church is full, I ſuppoſe that a Vicarage may be
then created, at leaſt if the Incumbent conſent, 8. R. 2. Annuity 53.
But not ſo as to bind or leſſen the Profits of the preſent Incumbent;
however 'tis clear, that in the Time of the Vacation, the Patron of the
Parfonage and the Ordinary alone may create a Vicarage, 8 R. 2. An-
nuity 53. And an Endowment was pleaded to be by Parſon and Ordi-
nary. 40 E. 3. 28.
When a Vicarage is created, the Parfon (and not the Patron of the
tron of the Parfonage) of common Right is Patron of the Vicarage, for that the
Vicarage. Vicarage is derived out of the Parſonage. Roll's Abr. 2. p. 336. Du-
bitatur. 17 E. 3. 51. 6 Contra, 5 E. 2. Quare Impedit 165. But
Quere, how one Perſon can be Parſon, viz. appropriate, and another
ſaid to be Patron of the Parſonage appropriated, ſeeing, as is ſhewed,
the Inheritance of the Advowſon of a Church appropriated muſt be in
the Spiritual Corporation to whom the Appropriation is made : in which
Caſe it is clear, that the Parſon appropriate creating a Vicarage, is
Parſon thereof. 17 E. 3. 51. And 'tis faid, that a Parſon appropriate
is Patron of the Vicarage. 11 H. 6, 18. b. 17 E. 3. 51. b. And where
an Abbot or Prior is Parſon appropriate. 19 E.2. Quare Impedit 178.
And yet the King (before the Diffolution) might have been Patron of a
Vicarage. 11 H. 6. 18. b. and ſo may any other Lay-man be Patron
of a Vicarage. 11 H. 6. 19. Contra, 39 Ė. 3. 33. Yea, both Patron
of the Parſonage, and alſo of the Vicarage. 11 H. 6. 19.
Though a Vicarage endowed may not, according to the Statute of
Vicarage en- 4 H. 4. C. 12. be appropriated, yet it may be united to another Church,
or to a Dean and Chapter, or College, but then it ought to be done
be appropri. with the King's Conſent. Vide Temps R. 2. Grants 104. 6 H. 7. 13.
5 E. 3. 26. Trin. 37 Eliz. Auſtin's Cafe, 3 Cro. 500. See Robinſon's
Cafe T. Bedle, Hill. 44 Eliz. 3. Croke 873. And yet it is ſaid by
Mountague, that a Vicarage endowed might be appropriated, but not
to the Parſon, to which Haughton and Doderidge agreed. Trin. 16
Jac. B. R. Popham 145.
Albeit theſe Things be requiſite to the perfecting of an Appropriati-
ent Appro- on, yet
on, yet if a Church hath been anciently appropriated, although the
priation ſame were not appropriated in due Form of Law, or that the Patron
was but Tenant in T'ail of the Patronage, &c. yet the Appropriation
ſhall be taken to be good; for although for ought any thing that can
Whether a
dowed may
ared.
Of an anci-
now
2
Chap. XVII. The Complete Incumbent.
195
r.
the Continu-
now be ſhewn to the contrary, the Appropriation is defective, yet it Tricaragés,
Thall be intended in reſpect of the ancient, and continual Poſſeſſion,
that the firſt Appropriator was Patron, and that all Things requiſite to
make the Appropriation good were obſerved, for Records, Letters Pa-
tents, and other Writings, either conſume, or are loft, or imbezilled;
and God forbid, faith Coke, that ancient Grants and Acts ſhould be
drawn in Queſtion, although that all Things cannot be thewed which
at firſt were neceſſary to the perfecting of them. Hill. 4 Fac. Bedle,
Berd and Wingfield's Cafe. 12 Coke 5. Archbiſhop of Canterbury's
Cafe. 2 Coke 47. Paſch. 2 Car. Cole v. Bedford. Palmer 426. And
therefore, although in a Quare Impedit, the plaintiff made 'Title by a
Gift in 'T'ail of the Advowſon of the Church appropriated, made to
his Anceſtor in the 18 R. 2; And a Verdict for another Anceſtor of
his was had. 12 H. 8. And his Grandfather had alſo preſented to the
fame Church, and his Clerk being inſtituted and inducted, had Poffef-
ſion certain Years, with ſeveral other Matters to prove the plaintiff's
Title, yet the Appropriation was upon the Reaſon of an ancient Poſſef-
fion adjudged good. Paſchi 4 Jac. Lord St. John, and Dean and Preſumption
Chapter of Gloceſter. 12 Coke 3. Or if the Original Inſtrument of in refpe&t of
Appropriation be Thewed with a Condition in it, that a Vicarage ſhould ance.
be competently endowed, and no Inſtrument or Proof can be made of
ſuch Endowments, without which Endowment at firſt, the Appropria-
tion had been void, yet if the Rectory for long Time be ſuppoſed, re-
puted, and taken to be appropriated, and the Vicar all that time pre-
fented, inſtituted and inducted, as a Vicar rightfully endowed; it ſhall
be preſumed in reſpect of the Continuance, that the Vicarage was
lawfully endowed. Trin, 37 Eliz. Grimes and others v. Smith. 1 2 Coke
4. Mich. 8 Jac. B. R. Hunſton v. Corkett. 2 Croke 252.
After à Church is appropriated, and a Vicar out of the ſame en- When the
dowed, the Parſonage and Vicarage are two diſtinct Ecclefiaitical Bene- Parſonage
fices, and the Parſon and Vicar have both of them Curam animarum;
rage become
the Parſon habitually, the Vicar actually, by Noy in Britton and Wade's ditin&ta
Caſe. 2 Cro. 518. And ſo it was agreed by the Judges in the Caſe of
Clark and Heath. Mich. 21 Car. 2. Banco R. I Sid. 426. 2 Keb. 484,
556. 1 Mod. Rep. 11. And it was alſo ſaid in this Cafe, that there
are ſeveral Churches in England, where there are Vicars endowed with
Cure, and yet the Parſon had a concurrent Cure, and both of thein
took the Oath of Canonical Obedience: And a Parſon appropriate doth Difference
differ from another Parfon only in this, that he ſhall be Parfon perpe-
tual, and the other but for Life. Roll's Abr. 2. p. 341. See 31 H. 6.
appropriate
14. 17 E 3. 76. 5 Ed. 2. Quare Impedit 165. And therefore it is
provided, that a Benefice appropriate ſhall not be taken to be a Benc-
fice with Cure, in any Article of the Statute about Pluralities. Stat.
21 H. 8. c. 13. Elfe it had been ſo, as it yet is by the Canon Law in
Caſes out of the Statute. Colt and Glover's Cafe. Hobart, 157, 158.
After a Parfonage is appropriated, and a Vicarage endowed, if any Queſtion ari-
Queſtion doth ariſe between the Parſon and the Vicar concerning the fing between
Endowment, it ſhall be tried in the Ecclefiaſtical Court, for that the the Parſon
Perſons, and the Cauſes alſo are Spiritual, and therefore where the Vi-
car ſued the Parſon for Tythes, and ſuggeſted the Manner of Tything
to have a Prohibition, the Prohibition being granted; yet after, upon a
folemn Argument, a Conſultation was obtained, in as much as the
Manner of Tything did not come in Queſtion, but the Endowment of
the Vicarage, as was cited by Goke to be adjudged. Trin. in Jac. Buth's
002
Cafe.
and Vica-
ܪ
of a Parfon
PC.
.
196
The Clergy-Man's Law, Or : Chap. XVII.
Copco
Wicarages, Cafe. 2 Brownlow and Gorildsborough 36. See Moor 907. 2 Bulffr.
157. 3 Bulft. 220. But where the Vicar ſued in the Spiritual Court
A Modus nor for Tythes, and the Defendant ſuggeſted a Modus payable to the Par-
to be drawn fon, a Prohibition was granted, notwithſtanding it was objected, that
it was a Matter proper for the Spiritual Court, being the Conteſt is
between the Vicar and Parſon, who are both Spiritual Perſons, to which
of them the Tythes belong, but it was anſwered, that the Conteſts
between the Parſon and Vicar, ſhall not draw the Pariſhoner who hath
a Modus, ad aliud Examen. Pafch. 19 Car. 2. 1 Siderfin 332. 2 Ke-
men.
ble 215
may
ز
4. C. I 2.
is poor.
Vicarage After a Church is appropriated, and a Vicarage endowed, yet the
itored again. Vicarage may be reſtored again to the Rectory; for if the Ordinary
doth unite, annex, and conſolidate the Vicarage to the Rectory or Par-
ſonage out of which it was endowed, to be holden by the Corporation
Spiritual, and his or their Succeſſors, that were Parſon of the appro-
priated Church, together with that wherewith it was endowed to his
or their proper Uſe, ſo that the Appropriator ſhould have and take
Care of the Souls which the Vicar had, and the Patron who is the
Appropriator doth concur thereto; this is faid to be a Diſſolution and
Reſtitution of the Vicarage to the Parſonage, and good, and is not
ſuch an Appropriation of the Vicarage as is made void by the Statute of
4
H.
As was admitted by the Juſtices, upon Reference out
of the Court of Wards. Mich. 7. Jac. B. R. Stafford's Cafe. Roll's
Abr. 2. 337. But then this Reſtitution muſt be made upon the Reaſon
For that the that the Appropriator is become poor, and doth want fuch Reſtitution.
Appropriator 40 E. 3. 28.
28. And fuch Diſſolution and Reſtitution of the Vicarage
may be as well made when ſuch Vicarage is full, if it be ſaid that it
fhall be after the Death of the Incumbent, when it is void, and ſuch
Vicarages as were held from the Time that the Reſtitution were to
take Effect by the reſpective Appropriators with the Parſonage, as one
entire Church without any Vicar, until ſuch Tinie as they came to the
Crown by the Diffolution of Monafteries, cannot now be preſentable,
but the King or his Patentees ſhall enjoy them, as free as the Appro-
priators had, or held the fame; and although that ſuch like Reftitu-
tions, or Unions, had been any way defective at the Time of the ma-
king the ſame, being good in Reputation, the Statute of Diflolution of
Monaſteries hath fully ſettled them in the Crown. Mich. 1692. Staf-
ford's Cafe. Lee 14. 4 E. 3. 27. in Britton and Wade's Cafe. 2 Cro.
517. Hil. 44 Eliz. Robinſon v. Bedle. 3 Cro. 873. Mich. 18 Jac. Brit-
tor and Ward's Cafe. Palmer 113 and 219. However, there muſt be
a real Reſtitution, altho’it be a defective one, to make the Vicarage not
muſt be real. preſentable: For if a Vicarage be endowed, and it can be only ſhewed
that for many years, viz. One Hundred and Sixty Years, there hath not
been any Vicar preſented; yet by this not preſenting a Vicar for ſo long
Time (which is thro'the Default of the Parſon himſelf) it ought not to
be adjudged to be a Diſſolution of the Vicarage, but fomething muſt be
ſhewed of the re-uniting thereof to the Parſonage. Hill. 44 Eliz. Robinz-
ſon v. Bedle. 3 Cro. 873. So if upon Petition of a Prior, &c. being the
Appropriator, ſhowing that the Priory was become poor, &c. the
Pope hath granted by Bull, that the Prior ſhould appoint one of his
Monks to ſerve the Cure, who ſhould be removable ad nutum Prio-
ris, &c. this makes no Diſſolution of the Vicarage, eſpecially being
done ſince the Statute of 4 H. 4. for the Pope could not do any Act
againſt a Statute in the Affirniative, or Diſpenfe therewith ; and if the
Orci
Reftitution
5
Chap. XVII. The Complete Incumbent.
197
tione, Coach
Ordinary may diſſolve a Vicarage, it follows not that the Pope may: Appzopzta:
For it appears by divers Statutes, that the Pope had not any Right to
meddle with Advowſons, Benefices, &c. and therefore may not dif-
ſolve Vicarages. However, as the Caſe is put, the Words are not ſuf-
ficient to make a Diſſolution, nor do not amount to ſuch ; nor do they
ſo much as give the Prior Power to take the Profits. Mich. 16 Fac.
Britton v. Wade: 2 Cro. 516. But there was a Difference taken by Moir-
bray.) when a Lay-man gives Land to one that is a Vicar, and when
the Vicar is endowed by the Ordinary of the Parfon's Land, c. For
in the firſt Caſe, the Ordinary hath no Power to diſſolve the Vicarage
as to the Land, though he hath in the other. 4. E. 3. 27. Vide 20
E. 3. Annuity 32. 16 E. 3. Annuity 24 and 40 E. 3. 28. b. But al-
though it is to be admitted, that the Ordinary had anciently Power to
make Reſtitution of Vicarages to the Parfonages out of which they
were endowed upon juſt Caufc; without Limitation; yet ſince the Sta-
tute of 31 H. 8. which made Parfonages Lay-Fees, the Ordinary may
ňot diſſolve a Vicarage, when the Parfonage is in Lay-Hands, for that
would be to deſtroy the Cure utterly: in Britton and Wade's Cafe.
2 Cro. 518. and Parry and Bank's Cafe, vouched in the faid Caſe.
A's the Endowment of a Vicarage may be diffolved, fo may a Church That a
appropriate become diſappropriate, and preſentable, as before the Ap- Church ap-
propriation was made, and that either by_Preſentment, or Recovery, may become
ör Điffolution ; and firſt by Preſentment : For if a Parfon, appropriate, diſappropri-
that is Patron of the Vicarage of the fame Church, by Agreement be- ate, &c.
twixt him and the Ordinary, doth preſent the Vicar to the Parſonage,
this doth unite the Vicarage and the Parfonage together, ſo that the
Preſentee ſhall have all the Tythes, and other Profits of the Church. By Preſenta-
44 E. 3. 33. B. admitted 44 AÑ. 37. And it is alſo ſaid generally,
that if the Parſon of the Church appropriate, being Patron of the Vi-
carage, doth prefent thereto by the Name of a Parſonage, and his Pre-
ſentee be inſtituted, and inducted, this is a Diſappropriation of the
Church, although there was no precedent Agreement betwixt the Pa-
tron and the Ordinary to that Purpoſe, and it ſhall be preſentable after.
44 E. 3. 33. B. and Pafch. 22 Eliz. Savile p. 20. Caſe 51. And the
like is ſaid by Manwood Chief Baron. Trin. 26 Eliz. in the Queen
and Lord Lumley's Cafe. 2 Leonard' 80. who alſo ſaid, that a Church
was diſappropriated by the Lord Dyer by Preſentment, which of late
he made unto it. And by Windhanz Juſtice, all Appropriations are
preternatural, and the Church during that Time is as it were in Bon-
dage, and therefore by Preſentation is made preſentative; in the Caſe
of Wilkinſon. v. Richardſon. i Keble 906. By which it appears; that a
Lay-man having an Appropriation which is commonly called an Im- Lay-man ha-
propriation, may diſappropriate it by Preſentation, if he be Patron of ving an ap
the Vicarage of the fame Church, as well as an Eccleſiaſtical Parſon
propriation,
prelents, Ore
may, Inſtitution and Induction being had' upon his Preſentment; yea,
and 'tis faid, that ſuch Patron by his Act of preſenting only to the Vi-
carage, by the Name of a Parſonage, doth diſappropriate the Church,
and unite the Parſonage, and the Vicarage into one. 11 H. 6. 18. b.
3: 38 H. 6. 20. F. N. B.35. Therefore Hobart faith, that he is of Opi-
nion, That if the Parſon appropriate, doth as aforcfaid preſent to his
Vicarage, and his Clerk be refuſed for juſt Caufe, of which Notice is
given by the Ordinary, Lapfe ſhall incur : For that the Appropriation
gives him a Choice to hold, or not to hold. Colt and Glover's Cafe.
Lapſe.
Hobart 152. But Quære, Whether a Diſappropriation be perfected by
Prcfent-
tion.
3
198
The Clergy-Man's Law: Or, Chap. XVII.
fór Ycarsi
3 ppzopzias Preſentment before Inſtitution, and Induction be had thereupon ; how-
tions, Etc.
ever, if a Woman be endowed of an Advowſon that is appropriate,
By a lloman and doth preſent her Clerk, who is inſtituted and inductcd, it is ſaid,
endowed of that this thall make a Diſappropriation, and ſhall never be appropriate
appropriate: again after the Death of the Incumbent, for that the Incumbent that
comes in by Preſentation, bath all the Eſtate in him. 2 E. 3. 8i and
cited. Mich: 28 Eliz, in the Earl of Bedford's Cafe. 7 Co. 8. I
46. b. But if the Wife in ſuch Cafe had died, before any was admit-
ted and inſtituted at her Preſentment, the Church had remained ap-
propriate ; and ſo the Quære. 6 E.6. Dyer 71. is well reſolved, faith
Coke. Mich. 28, 29 Éliz. Earl of Bedford's Cafe. 7 Co. 8. where the
By Leffee Cafe 2 E. 3: 36 oft miſtaken is well explained. But if Leſſee for
Years of an Appropriation doth preſent thereto a Clerk, and who is in-
ítituted and inducted, this doth diſappropriate the Church during his
Years, and not after, for this Diſappropriation doth nọt bind him in Re-
verſion. 44. AD. 37. 44 E. 3. 33. 37. 20 E. 6. b. i Roll's Abr. 240,
241. Yet this feems to be contrary to the Reaſon of the Caſe of Te-
nant in Dower next before ; for in this Caſe, the Preſentee of the Lef-
fee for Years hath all the Eſtate in him as much as the Preſentee of
the Wife Tenant in Dower, and for that Reaſon ought as abſolutely to
make a Diſappropriation : And Paſch. 33 Eliz. Lancaſter v. Lucas.
1 Leon. 235. by Popham, the Preſentation of the Wife in the firſt
Caſe did only diſappropriate the Church during her Life, but after-
wards it ſhall ſtand ; and he refers to the fame Caſe of 2 E. 3. 8.
Therefore Quære.
If Leſſce for Years of an Appropriationi, who for the Term is alſo
Patron of the Vicarage, doth by Preſentation, &c. unite the Parſonage;
and Vicarage, which continueth Seven Years, a Spoliation doth not lie
Indicavit in the Eccleſiaſtical Court for the Appropriator, or Leſſor ; and if a
upon a Spo- Spoliation be brought, an Indicavit may be had to ſtop them in the
brought
Spiritual Court ; for Spoliation doth not lie, but where a ſecond Incum-
bent is preſented, c. upon a former by one and the fame Patron;
in which caſe, the Right of the Patronage is not in Queſtion: But if
the ſecond Preſentment be made by another, the Matter is to be tried
by Arlize; or Trefpafs at Common-Law. 44 E. 3. 33. But if one doth
preſent to a Church appropriated by Uſurpation, having no 'Title, this
doth not make the Church to be diſappropriated, for that all is void.
Grendor's Cafe. Plowden soo. b. And yet it is ſaid, that if a Stranger
doth preſent, and his Clerk be inſtituted, and inducted, and continueth
Incumbent for Seven Years, this Continuance for ſo long Time hath
diſappropriated the Church, until it be recover'd again by a Writ of
Right. 44 E. 3. 34: 44 AD. 37. Bút Roll's in his Abridgment 1. p.
If Uſurpa-
240, faith, that this is not Law, for that there cannot be an Uſurpa-
tion upon an
Appropria tion upon an Appropriation, 5 Co. 101, and fo is Plowden in the Cafe
laſt cited : And if the Patron of a Vicarage (another being Patron of
the Parſonage) doth preſent thereto, by the Name of a Parſonage,
and his Clerk be inducted, yet it doth continue a Vicarage; the
fame Law is, if the King doth preſent by ſuch Name to ſuch Vicarage.
Roll's Abr. 2. p. 338. Dubitat 11 H. 6. 18. B. 19. 32. B. But if
there be a Vicarage, and a Parſonage, in one Church preſentable, and
both be void at one Time, and one doth preſent his Clerk as Parfong
who is inducted, this ſhall unite the Parſonage and Vicarage again.
11. H. 6. 33. Q11&re.
liation
tion:
3
As
Chap. XVII. The Complete Incumbent.
199
tions.
tiisi
As by Preſentment, fo by Recovery an Appropriation may be diſap- Aprzopizia
propriated; for if a Parſon appropriate, and the Ordinary do create a
Vicarage, and afterwards the Advowſon of the Church be recovered by Diſappro-
a Writ of Right, upon a Title prior to the making of the Vicarage,
priation by
Recovery.
the Vicarage is defeated thereby, and the Church diſappropriated; for
that the plaintiff doth recover by higher Title than the making of the
Vicarage or Appropriation ; but otherwiſe it is, if he doth recover by
a younger Right than the Creation of the Vicarage. 17 Ed. 3. si.
B. 76.
If a Church be appropriated to a Corporation that is diſſolved, the By Dillolu-
Church by the Diffolution is diſappropriated, (as the Lord Dyer faid) tion of a
and the Advowſon thereof doth fall to the Lord of whom it was held, Corporation
ſo that he may preſent thereto. Grendon' Caſe. Plowden 497. a. And
by Hobart, in Wright v. Gerrard and Heilderſham. Hobart 307. Trin.
38 Eliz. B. R. The Archbiſhop of Canterbury's Caſe. 2 Coke 47. or
to the firſt Patron that gave the Advowſon to the Corporation. Mich.
18 Jac. Wright v. Gerrard and Heibderſham. Jones 2. And Quareg
if a Dean and Chapter, or other Spiritual Corporation, be feiſed of a
Manor to which an Advowſon is Appendant, and the Church is appro-
priated to them, and after they make a Feoffment, or Leaſe of the
Manor cum pertinentiis, whether this doth diſappropriate the Church; Feoffiment
for it ſeems to ſome (faith Plowden) that the Advowſon ſhall pafs as cum pertinen-
Appendant to the Manor, by the Order of the Common-Law; but
now by: the Statutes, which make the King and Lay-Perſons capable
of Parſonages appropriated, the Advowſons in ſuch Cafe be fevered
from the Manors by the Intent of the Statutes, and by the Grant of a
Parſonage appropriate, which may now be granted, and transferred to
common Perſons, the Advowſons do paſs. Grendon's Cafe. Plowden
501. a. See Stat. 31 H. 8. C. 13.
It is ſaid. 19 Ed. 1. Rot. Pat. Membrana 25, in Schedula annexa,
That the Archbiſhop of Canterbury, with the Conſent of the Dean
and Chapter, did appropriate a Church of his Dioceſe, and of his Colla-
tion to an Hoſpital of Lepers, in Compenſation of a Sum of Money due
from the Archbiſhop, and that the Succeſſor of the Archbiſhop, with
the Conſent of the Pope, Dean and Chapter, and Maſter of the Hoſpital,
did revoke the Appropriation ; but I conceive, that this Appropriation
was never good, unleſs that the Patronage of the Church appropriated
was firſt veſted in the Hoſpital, and afterwards appropriated, as is be-
fore ſhewed it ought to be. However, if there be a Parſon appropriated,
and a Vicar endowed of the ſame Church, and after the Parlon and
Vicarage
Ordinary do reunite the Vicarage to the Parſonage, yet this doth not united to the
diſappropriate the Church appropriated, for that the Vicarage was taken Parfonage.
out of the Parſonage, and ſo is reſtored but to its firſt Eſtate, as was
reſolved. 7 7ac. at Serjeants-Inn, by the Judges, upon a Reference out
of the Court of Wards, in one Stafford's Cafe. Roll's Abr. 1 p. 240.
If the King, or any common Perſon be feiſed of the Rectory as Difapprö-
Appropriator, and doth grant Advocationem Ecclefiæ de D. nei- priation mug
ther the Appropriation doth paſs thereby, nor the Advowſon
of the be bye Judi-
Church; not the Advowſon; becauſe it is not a Thing in Ele, by
reafon of the Appropriation ; nor is the Church difappropriate
thereby, becauſe it being appropriated by a Judicial Act, nothing
but a Judicial Act, as Inſtitution and Induction upon the Proprie-
tors Preſentment, and not any other private Act of his can make a
Diſappropriation thereof, by Manwood, Chief Baron. Irin. 26 Eliz.
Queen
200 The Clergy-Man's Law: Or, Chap. XVII.
tionis not
ver.
If the Vica-
riſhed.
Appzopzia: Queen and my Lord Lumley's Cafe. 2 Leonard 80. Paſch. 22 Eliz.
tions, Copco
Savile's Cafe, st. p. 20. Boſtock and Monin's Cafe. Roll's Abr. 245. D.
Appropria And indeed, Appropriations are not regularly grantable over, nor can
be ſurrendered; therefore it hath been held, That the Grants and Sur-
grantable ou
renders of the Poſſeſſions of Monaſteries, would not have carry'd Ap-
propriations without the Aid of the Statute 31 H. 8. Wright's Cafe v.
Gerrard and Heilderſham. Hobart 307.
Although the Rectory be not diſappropriated, and the Vicarage at
rage be dimni- the firſt was ſufficiently endowed, yet if after the Vicarage be dimi-
niſhed, it ſhall have more from the Parſonage if the Remnant be not
ſufficient : or if a Charge be ariſing upon the Vicarage, it ſhall be re-
If Parſonage compenſed from the Parſonage. So if the Parſonage be impoveriſhed,
be impove-
or that neither the Parſonage by it felf, nor the Vicarage be ſufficient
to ſuſtain themſelves, the Vicarage ſhall be determined, and reſtored
to the Parſonage. 31 H. 6. 14. a. 40 E. 3. 28. But this is now to be
underſtood of a Parſonage appropriate in an Eccleſiaſtical Perſon, which
never came to the King by the Statute of Monaſteries; and in the
aforeſaid Caſes, if the Parfon hath niade a Leaſe for Lives, according
to the Statute of 32 H. 8. the Vicar may well ſue in the Eccleſiaſtical
Court againſt the Parſon, and his Leſſee that comes in by the Statute
Suit for Ad- for Addition of Maintenance, and the Ordinary may compel them to
encreaſe his Maintenance, for upon all Appropriations, ſuch Power of
encreaſing of the Maintenance of the Vicar was reſerved to the Or-
dinary by the Common-Law, March 87. 3 E. 2. 74. and the Leſſee
comes in ſubject to this Charge; and upon ſuch Suit in the Ecclefia-
ftical Court, by the Vicar of the Pariſh-Church of Prejburſt in the
County of Wilts, againſt the Maſter of the Choiriſters in the Cathe-
dral Church of Sarum, and his Leſſee, the Maſter and his Leſſee fu-
ing for a Prohibition, it was denied. Hill. 9 Car. B. R. Fitchcolt v.
Thornborough and Hitchcolt. Roll's Abr. 2. p. 337.
dition of
Mainte-
nance.
CHA P. XVIII.
Of Commendams.
1
Commondam.
T
ز
of two De.
HE Third extraordinary Way or Means of taking a Title to a
Benefice in the Church, is by obtaining (as the Term is) a Coin-
mendam recipere, for that Purpoſe, and this may be had not only by a
Biſhop after he is advanced to a Biſhoprick, but alſo by every Clerk
that may hold a Plurality; as to which, it is to be known, that there
are two Degrees of theſe Commendams only allowable by Law; the
one Semeſtris, or for ſix Months, and is made to the Clerk during the
Vacancy of the Church, and is but a Sequeſtration of the Cure and
Fruits, until the Patron doth prefer his Clerk, or at the moſt, until
ſuch Time as the Church doth go in Lapſe to the Ordinary; or if it be
granted becauſe the Church is litigious, until ſuch 'Time as the Contro-
verfy ſhall be determined: But ſuch Commendam neither is, or doth it
give any Title to the Church, although the Commendatory be by Com-
miſſion allowed to gather the Profits, or to ſupply, or cauſe the Cure
grees: Se-
meftris.
Gives no
Title.
to
1
Chap. XVIII. The Complete Incumbent.
201
Dams.
himſelf.
to be ſupplied ; and this Commendam is grantable by every Ordinary Lommers
that may fequefter the Profits of the reſpective Church. 8 H. 6. 9.
But I ſuppoſe that ſuch Commendam or Sequeſtration, doth not give
the Perſon that ſhall obtain it a Right to all the Profits, (eſpecially
of a great Bencfice) during the Vacation, by reaſon of the Statute of
28 H. 8. which ordains, That the Didinary ihall ſequefter, and that the St. 28 H. 8. c.
Profits of the Church artling during the Wacancy thereof, (the sup:
ply of the Cure for that Time being firſt paid) ſhall go to the next
Jucumbent.
The other Degree of commendam is more perfect and full, and is commendam
for Life, and grantable at this Day by the King or Archbiſhop of Can- for Life.
terbury only, and there is no Difference between a Commendam for
Life and a Preſentment, but that the one preſents the Parfon to the
Church, the other commits the Church to the Parfon ; and as a Patron
cannot preſent to a full Church, fo neither can a Commendam be made
to a Church certain that is then full. Alſo the Patron's Confent muſt Patron's
be had to the taking of a Benefice in Commendam, and this muſt be Conſent.
expreſſed in the Inſtruments of Commendam. Mich. 9, Jac. King v.
Horsfall and Wale. Davis 74. Hill. 22 Jac. Evans and Kiffin v. Ask-
with, Palmer 477. And if the Patronage be to divers, and that one
is to nominate to another, who is to preſent over, the Confent both of
the Nominator and Preſenter muſt be had, and expreſſed as aforeſaid:
but if a Comniendam be made to the Patron himſelf, it may be well commendam
made by theſe Words ; Authoritate ſua propria capere & apprehendere to the para
abſque Inſtitutione, Collatione, &c.
If the Archbiſhop ſhould coniniend to a certain Church void, Li- Licet Patronus
cet Patronus non conſentiret, the Inſtrument of Commendam is void, men.
non conſentiret,
although the Patron would after conſent. Alſo if an Attorney made
by a Patron to prefent to his Benefices ſhould conſent to a Commendam,
it would be void, becauſe ſuch Adminiſtration for others are never ex-
tended beyond ordinary Caſes, and ſo if a Church doth come by Lapſe Lapſe.
to the King or Ordinary, neither of them can conſent to have the
Church taken hy Commendain : But I fee no Reaſon why the Church
that is in Lapfo may not be filled (he conſenting to whom it is lapfed)
by any Means by which a Church may lawfully be filled, and there-
före by Commendam, for that can be but for one Turn, and the Inhe-
ritance is no Ways prejudiced or touched thereby, the Church being
thereby filled, and the Cure provided for, the Truſt that comes by
Lapfe is by ſuch Commendam as well executed to all Intents, as if
Preſentation had been made, and Inſtitution and Induction had there-
upon enſued, and of this Opinion is Dodderidge. Mich. 10 Fac. in
Colt and Glover's Cafe. Moor 900. Eſpecially when the Church is
by Lapſe come to the King, for then the Right of preſenting for that
Turn is veſted in the King, not as Ordinary, but as ſupream Patron,
ſo that the Patron cannot preſent to that Avoidance, Quære.
When a Commendam is made, if it be for longer Time than whilft For what.
the Church ſhall remain void through the Patron's Fault, it muſt be
made for the Life of the Commendatory, and not for Years, or ſo long
as he ſhall be Biſhop of ſuch a Dioceſe, or the like ; neither can a Bene-
fice be commended by Parts, any more than it may be preſented unto
by Parts, as that one ſhall have the Cure without the Fruits, or the Not by Parts.
Fruits without the Cure; or that one ſhall have the Glebe, another
the Tythes, and the like; neither can fuch Commendatory have a Ju- Juris utrum.
ris utrum, which is Utrum fit libera Eleemofina pertinens Ecclefia
Time.
ز
PP
Sua;
202
The Clergy-Man's Law: Or, Chap. XVIII.
cam8.
Commenda
Preſenta-
tion
the best.
If made a
Commen- Suæ ; nor can he take to him, or his Succeſſors, nor can he ſue or be
ſued in a Writ of Annuity, or the like. But a Commenda perpetua
may be admitted. 11 H. 4. 76. By Thirning and Hankford; for it a-
perpetua. .
mounts to a Collation or Proviſion, and hath full Words, that he may
take or receive a Benefice avoid of the Gift or Preſentation of the Par
tron, and the Commendatory may enter into it without Inſtitution, &c.
and take the Profits as Rector in Commendam, for Term of his Life :
And it is ſaid to be adjudged, and affirmed in Error, that a Commen-
dam to take a Benefice upon the Preſentations of the Patron is good.
Totake upon Jenkin's Caſe. 9 Cent. 6. But then the Benefice muſt be void when
the Patron's the commenda is made for the holding of it, and Words de future
will not ſerve ; but Quære. And though it be in a fort repugnant,
that a Man ſhould have an Intereſt irrevocable in a Thing that he
takes only to keep, (for ſo was the Original of a Cominendam,) yet
where the Words are ample to make a full Incumbent, the Word
Commendam Thuffled in may be void. Hobart 153.
Perpetual is
And though it may be ſaid that the Nature of a Commendam is to
be determinable, not perpetual; yet it muft be agreed that a Commen-
dam may be perpetual, and fuch is the beſt, and perfe&teft kind of
Commendams ; and a Commenda Temporalis doth not ſtand with the
Common-Law of England. When any ſpiritual Perſon is made a
Biſhop, he may by Diſpenſation of Retainer, hold with his Biſhoprick
Biſhop, what all ſuch Benefices of which he was lawfully poſſeſſed before he was
may retain. Biſhop; and ſo if he was the King's Chaplain, and had Three Bene
fices with Cure above the yearly Value of Eight Pounds, one of them
at the leaſt being of the King's Gift, he may retain them all; but if
he doth retain by Diſpenfation two Benefices, or fo many as he might
have before he was Biſhop by the Statute 21 H. 8.c. 13. he cannot by
Commendam take any more, becauſe the Words of the Statute are as
well againſt having, as taking more Benefices, and upon other Terms
than the Statute doth allow; and if he had no Benefice before, or did
void them by being made a Biſhop, he can take but oue Bene-
fice De Novo, eſpecially if it be with Cure, and of the yearly
Value of Eight Pounds, becauſe he that will have: two ſuch Bene-
Qualifica-
fices, muſt have ſuch a Qualification and Difpenfation as the Law
requires ; and a Biſhop by being Biſhop, ceafeth to be a Chaplain, and
ſo makes his Qualification void; (but Quære, Whether he doth not
continue to be qualificd as a Doctor?) but he muſt have a double Dif-
penfation to licenſe him to take two ſuch Benefices, and hold them
with a Biſhoprick, which is ſuppoſed not to be tolerable. Hobart 157.
But I ſee no Reaſon in Law, why a Bihop may not as well be dif-
penſed with to hold a Benefice above the Value of Eight Pounds
per
Annuin, with his Bifhoprick, and another Benefice within the Statute
with that and his Biſhoprick, viz. by Commendam, (all Commendams
are Difpen-
being but Diſpenſations,) as was agreed. Hill. 22 Fac. in Evans and
Kifin's Cafe v. Aſcouth. Noy '94. and Palm..457. as well as he that
hath any Inferior Dignity may be diſpenſed with, to hold two ſuch
Benefices together with his Inferior Dignity; for a Bishoprick by Ho-
bart is agreed to be no more a Benefice within this Statute than a
Deanery, Archdeaconry, &c. are, which are exprelly excepted by it.
However, as Hobart ſays, Hobart 257. Whatever Benefices 'a Biſhop
holds in Commendam, he is not a Biſhop as to ſuch Benefices, whether
they be in his own or another Dioceſe, but a Parſon, Vicar, or the like,
(as his Cafe is) to all Purpoſes, and by that Name muſt ſue and be ſued,
pre-
tion.
Commendamis
ſations.
I
Chap. XVIII. The Complete Incumbent . 203
Da 1115.
preſcribe and claim, and yet it's ſaid. Hill
. 22 Jac. in Evans and Kiffin's Commen,
Cafe v. iſconth. Noy 94. The ſame Cafe is alſo reported. Palmi. 345.457.
Latch. 31, 233. That a Commendatory muſt fue by that Name; all
which Particulars concerning Commendams are mentioned by Hobart,
(unleſs ſuch of them for which other Authors are cited) in Colt and
Glozer's Cafe s. the Biſhop of Coventry and Litchfield. Mich. 10 Jac.
Hobart 154, GC. Which Caſe alſo ſee in Moor's Reports, p. 826. And
in Roll's i Rep.451. where the principal Cafe is, that a Church being
come to the King by Lapſe, and after a Biſhop (that did hold with his
Biſhoprick a Benefice with Cure, being clected to be Biſhop of another
Dioceſe) doth upon his Petition obtain a Grant of Diſpenſation from
the Archbiſhop, that he ſhould hold the Benefice he held with his firſt
Biſhoprick, Nec 1101, ut unum aliud vel plura Curata vel non Curata
Beneficia Eccleſia, infra Regnum Anglia, cujufcunque Nominis, qua-
litatis aut Dignitatis in Commendam ibidem obtinere, acceptare Grea
cipere,lac propria ſua authoritate capere, d' apprehendere, ac realem,
corporalem, & actualem Polje (Jionem ejufdem abſque Inſtitutione, Colla-
tione, Induktione, & alia quacunque juris Solemnitate intrare, &c.
And then being confirmed Biſhop of the ſecond Dioceſe, the King ra-
tione Prærogativa, &c. doth grant him the Benefice that was come to
him by Lapſc, upon which the Biſhop doth accept of the ſaid Benefice,
and did enter upon it, and held it in Commendam, in which Caſe;
of twelve Judges, three only did hold that the ſaid Commendam was
good in Law, at leaſt made good by the Words of the King's ſecond
Grant ; the other nine held that it was void, of which nine, two were
to have Judgment to be given for the King ; the other ſeven, that Judg-
ment ought to be given for the Plaintiff, and for him it was given ac-
cordingly, Quod habeat brece Epiſcopo ; but Order given that no Writ
ſhould go forth, neither to the Biſhop nor the Sheriff to enquire of the
Points of the Writ, till the Court give further Order, becauſe that the
King's 'Title by Lapſe was in ſome fort admitted, or not denied; and to
the End, that (as Coke adviſed, who was one of the ſeven) Knowledge
might be taken of the King's Title before Execution. And this is the
firſt Judgment that is found to be given concerning this fort of Com-
mendams, although Queen Elizabeth brought a Quare Impedit before,
in a Cafe not much unlike it; which was, That on the twenty fecond of
November 1582, a Biſhop of Coventry purchaſed a Diſpenſation of the Biſhop of Chain
Archbiſhop of Canterbury, after confirmed by the King, whereby it was ventry.
diſpenſed with the faid Biſhop, that he might, during the Time that
he ſhould be Biſhop of the fame See, duo Benefici a Ecclefiaftica infra
Diæceſin Suam, &c. In Commendam recipere, &c. Et authoritate ſua
propria retinere, quam diu prædifto Epiſcopatui præelle contigerit; quan-
tuin in codem Archiepiſcopo fuit, & jura Regni patiebantur. After
which, viz. 14 April 1597, a Church within his Dioceſe falling void
on the tenth of May following, the rightful Patron Nominavit, De-
fignavit & Aſignavit, the faid Biſhop to be Rector of the void Church,
and that he might take it, and hold it according to his Diſpenſation,
by Pretence of which Difpenfation and Preſentation, the Biſhop, on the
24th of Otober in the fame Year, took by his own Authority corporal
Poſſeſſion of the fame Church; as to which Diſpenſation of Commen-
dani, three of the Juſtices held, that both it and the Confirmation
were void. The Fourth, viz. IValmiy, that it was good, but the
Qucen put an End to the Suit, by certifying by her Attorney, that her
Pleaſure was not to proſecute it further. Paſch. 43 El. argucd, Mich.
Pp 2
1
• 449
204
The Clergy-Man's Law: Or, Chap. XVIII.
Commens
danis.
Bishof of
Offery.
954
442
and
45
El. Queen v. Biſhop of Coventry and Compton, 2 Anderſon
181. Alſo the Biſhop of Opery having obtained the like Diſpenſation,
and upon Pretence thereof, cnjoyed during his Life the Profits of a
Vicarage that came to him by Lapſe, and was full of an Incumbent
when his Diſpenſation was granted; the King brought after his Death
a Quare Impedit againſt the Patron, and his Clerk, upon the Title of
Lapſe, preſúming, that as the Church came by Lapfe to the Biſhop
ſo not being filled by his taking Poffeffion by Vertue of his Diſpenfati-
on, that it came to him, and was in him by 'Lapfe, but what Judgment
was given is not declared; however, the Arguments Pro and Con are
ſet down. Pafch.9 Fac. King v. Horsfal and Wale, Davis, fo. 68. And
in Truth it ſeems a needleſs Inquiry, Whether ſuch a Lapfe might be
made a Commendam, fince 'tis certain, whoever hath a Right to preſent
Vic. Gibſons. by ſuch a Lapſe, hath by the fame Rcafon a Right to conſent that it
be granted in Commendain perpetual; which is ſaid to be equivalent to
a Preſentation. It hath alſo ſometimes been made a Doubt, whether
a Biſhop might hold any Benefice by Commendam within his own Dio-
ceſe or not. Moor 899. 1 Siderfin 305. Rolls i Rep. 454, 4639. Da-
vis 69. 8.
And the Reaſon given why he cannot, is, becauſe the fame Perfon
cannot be both Viſitor and viſited, but 'tis anſwered, That the Biſhop
is under the Correction of the Metropolitan as his Viſitor; and therefore
might have ſuch a Commendam.
But as to Commendams in General, the following Rules are found
in the Books of the Common Law, and in Part collected by Biſhop
Gibſon in his Code, viz.
1. That the Poſſeſſion of a Biſhoprick doth of common Right make
void all other Promotions according to a Canon of the Council of La-
teran, under Alexander III. and this not only on Engliſh Promotions
by Biſhopricks in England, but alſo Engliſh Promotions by Biſhopricks
in Ireland, the Iſle of Man, &c. Et vice verſa. Vide Noy 93. W.
Jones 158. Latch 133. Palm. 344. Vaugh. 19. But the Law is other-
wife of a meer Titular, or a Suffragan Biſhop on the Stat. 21 H. 8. c.
18. See the Statute.
2. Yet ſuch Avoidance may be prevented by a Difpenfation of Re-
tainer, or a Commendam retinere granted before Poffefſion of the Bi-
ſhoprick. This Power the Pope at firſt claimed, viz. of diſpoſing of
all Promotions becoming void in that manner; and the King may
now do the ſame either ſingly, and by himſelf. Vide Hob. 453, 457,
468, or by Command to the Archbiſhop to exert the Right of Diſpen-
fation veſted in him by Stat. 25 H. 8. c. 21. as the Ordinary Method is.
Vide 2 Cro. 542. Hob. 154. &c. which ſort of Commendam is defined by
Hobart to be a Faculty or Licence of Retention, and Continuation of the
Benefice in the fame Perſon and State, wherein it was, notwithſtanding
ſonjething intervening, as a Biſhoprick, or the like, that without ſuch a
Faculty would have avoided it. By which Means the Inſtitution and
Induction, or other Method whereby the Perſon obtained ſuch Benefice,
remain and continue in their full Force. And it being the Doctrine
both of the Canon and Common Law, That former Promotions are
not vacant but by Confecration in caſe of Creation, and by Confirma-
tion in caſe of Tranſlation, if ſuch Faculty or Diſpenſation comes be-
fore theſe, it comes Tinie enough to continue the Poffeffion, otherwiſe
it comes to late. Thus Cardinal Beaufort's Diſpenſation to hold the
Biſhoprick of Ilincheſter coming after he was made Cardinal was void,
But
jams.
and confeſſed he held only by a corrupt and precárious Title invented
Chap. XVIII. The Complete Incumbent. 205
But Cardinal Ialſey's for the Archbiſhop of York coming before was Commen-
good. Vide Noy 93. 1V. Jones 158. Vaugh. 20. Dav. 77, 80.
3. By a Cominendam Retinere the Incumbcncy is continued. This
appears evident from the foregoing Propolition, for the Avoidance is
thereby prevented in the ſame manner as it is with regard to a firſt Be-
nefice incompatible by a Diſpenſation to hold a ſecond, or a Plurality,
therefore 'tis Taid by Hobart, thát a Commendäm Retinere, is impro- Hob. 143,
perly called a Commendam. For ſays he, my own Benefice cannot be
commended unto me. And it is clear, what the Canon Law meant
by this Term, was only with regard to the ſecond Benefice taken de
Noro, by way of Cuſtody or Commendam, and (to prevent the Voidance
of the firſt) not taken by way of Inſtitution ; ſo that it was no more
than committing to the Incumbent of one Church the Cure and Reve-
nucs of another, either for a Time limited as fix Months, (which Time
the Patron had to conſider of a proper Clerk) that the Church might
be taken care of, or (with Conſent of the Patrón) to the End chief-
ly, That ſuch Incumbent might be better ſupported: the firſt of which,
viz. Care of the Church during the Vacancy, is now anſwered by Se-
queſtration of the Benefice, and the Grant of the ſecond (is é. thie Pro-
fits of the Vacancy) is rendred impracticable either by the Biſhop or Pas
tron, or both, by the Stat. 28 H. 8. C. 11. which gives the Profits of
the Vacation to ſuch Perfon as shall be thereunto next preſented, pros
moted, inſtituted, indućted or admitted. Which Profits before the faid Act
belonged cither to the Church, and ſo were in the Diſpoſition of the
Patron and Biſhop, or to the Ordinary or other Perſon, to whom by Cu-
ſtom they appertained, and ſo by the previous Conſent of ſuch Per-
ſon might be yielded to the Commendatory. But the next Inčum-
bent being a Perſon uncertain cannot give ſuch Conſent, and by Confe-
quence, the Revenues of Vacancies, ſince the making of the ſaid Act
cannot be given ; which ſeems to be the true Reaſon of the utter diſ
uſe of that ſort of Compiendams with regard to Presbyters; tho' as to
Biſhops it ſtill continues in Favour to the Prerogative Royal.
4. But a Commendam capere, (i.e. a Dignity or Benefice taken by
a Biſhop after Confecration, and without Inſtitution) doth not create
a proper Incumbency. The Canoniſts were doubtful whether during
a commendam the Church commended was not really vacant, and
whether the Commendatory was any more than a Cuſtosy Adminiſtrat:
tor or Procurator Ecclefiæ, during ſuch Vacaticy, and even they who
held he was ſomewhat more, (for that Commenda is a Title or Right
owned by the Canon Law) pretend not to ſay he was an Incumbent,
on purpoſe to elude the Laws against Pluralities. In like manner, tho?
the Books of the common Law lay. A Commendatorý by retinere ro-
mains full Incumbent, and may plead as ſuch 3 yét of a Commendatory
recipere they fay, That a Deat by ſuch a Cominendam cannot confirm
a Léaſe made by the Biſhop, and that ſuch a Commendatory Parſon
cannot have a Juris utrunn, nor take to him and his Succeſſors, nor be ſua
ed in a Writ of Annuity, &c. 2 Cro. 691. Hob. 163. Noy 94. Whereas
on the other hand, Benefices, cs and Commendams by Retainer are fre-
quently declared vacant by the Relignationi
; or Surrender of tho Com-
mendatory. Vide Gibſor's Cod. 955.
5. Commendams may be temporary or perpetual at the Pleaſure of
the Prince. When it is Temporary, the preciſe Tinie is expreſſed and
limited in the Diſpenſation; when perpetual; the. Stile is Quamdiu
4
vixeris
i
206
The Clergy-Man's Law: Or, Chap. XVIII.
Comnien-
vamo.
vixeris & eidem Epiſcopatui præfueris. And in caſe of a Commendam
retinere whether it be temporary or perpetual, it is only a Continuance
of the original Incumbency, or the preventing of an Avoidance for ſuch
a Term. But however it was taken by the old Canoniſts, it ſeems
the Books of common Law do generaliy ſay. That a Commendani
capere ought to be perpetual, becauſe there being no previous Title by
Inſtitution, &c. (as there is in the Caſe of a Commendam retinere) the
Law knows not what to make of any Thing that can be called a 'ſitle,
and not be equal to that, at leaſt in point of Perpetuity. Vid. Hob. 152.
And there is no Inſtance in our Books of a Commendam capere, but what
is unlimitted or perpetual.
6. According to the Duration of a Commendam, and the Commen-
datory, the Right of the Crown, to prefent upon Promotion is ſerved, or
not ferved. If the Commendam be limited to a certain Term, the
Crown fhall preſent by prerogative at the Expiration of ſuch Term,
notwithſtanding the previous Grant of a Commendam; unleſs it fo fall
out, That the Commendatory Biſhop Dies, or Reſigns before the Ex-
piration of the Term. Vide Dyer 228. b. 4 Mod. 212. For in ſuch
Caſe (the Church becoming void not by Celſion, but by Death or Re-
fignation) the Turn of the Crown is ferved, and the Patron ſhall
pre-
fent as before is ſhewn, pag. ... And ſo it is likewiſe ſerved, if the
Commendam was originally unlimited, that is, during the Life of the
Perſon, and his Poſſeſſion of ſuch a See, becauſe this amounts to a
Preſentation. And therefore in this Cafe alſo, the Right of the
Crown is ſerved, and the Patron may preſent. But if a Biſhop who
is poſſeſſed of a Commendam is tranilated to another See, and ſo a
new Title accrues to the Crown by a new Promotion, the fame Com-
mendam may be continued, if the Prince ſhall pleaſe, but it muſt be
by a new Diſpenſation granting it to be held with the new Biſhoprick.
Noy 94. 2 Roll. 453.
3. And 'tis faid by Biſhop Gibſon Code 956, That a Commendani
Temporary in Retinere may be renewed or prolonged; that is, before
the original Incumbency ceaſes by the Expiration of the firſt Diſpenſa-
tion, and a ſecond Diſpenſation may be granted to prevent the Avoi-
dance, and continue the Incumbency. But he admits, that all C0112-
mendams retinere are now uſually granted in Perpetuity, they being
deſigned as an additional ſupport to the Epiſcopal Character, which
(ſays he) ſince the Reformation hath greatly needed ſupport in many
Sces.
8. The Biſhop likewiſe ſays, ibid. 955, That no Commendam can be
granted but with Conſent of the Patron, and therefore in granting a
Commendain retinere, the King (who is Patron by the Promotion) lig-
nifies his Conſent by his Mandate to the Archbiſhop, to grant a Diſpen-
ſation. And if the Commendam. be by recipere, it is either to take a
Promotion in the Biſhop's own Gift, and ſo his Acceptance is a Con-
ſent, or in the Gift of ſome other Patron; and then the Conſent of ſuch
Patron muſt be had in an authentic Manner, and mentioned in the
Diſpenſation. And Hobart ſays, if the Archbiſhop ſhould commend
to a certain Church void, licet Patronus non conſenſerit, the Inſtru-
ment of Commendan would be void, tho the Patron fhould afterwards
confcnt.
And the Biſhop Notes, That not only Dignitics and Benefices have
been granted in Commendam, but alſo Headſhips of Colleges and Ho-
ſpitals, and that by Diſpenſation ; as of Headſhips, St. Fol:n's Ox011,
('uile 954.
4
to
Lecturers.
3
without Ad-
mittance
) ,
Chap. XIX. The Complete Incumbent. 207
to Dr. Mew, Biſhop of Bath and Wells ; of Magdalen-College, Oxon, Curates anº
to Dr. Hough, Biſhop of Oxford; of Pembroke-College, to Dr. Hall
,
V
Biſhop of Briſtol: and of Hoſpitals, St. Crofs near Wincheſter; to Dr.
Compton, Bishop of Oxford, and St. Oſwald near Worceſter, to Dr. Fell,
Biſhop of Oxford.
CHAP. XIX.
Of Curates and Lecturers.
TH
HUS having ſpoken of the general Ways or Means, both ordi- No Prieſtor
nary and extraordinary, by which a Title to an Eccleſiaſtical Deacon
may
Benefice may be taken; I may here alſo not improperly add, that the theras Cu-
Power of executing the Office of a Miniſter, may be had by thoſe that rate..&c.
have not any Title to an Ecclefiaftical Benefice; and that is, either as a
Curate to ſome beneficed Perſon, or as a Lecturer without Title; but and Sub-
no Parfon, whether Prieſt or Deacon, (for Deacons are capable of be- fcription,
ing Curates and Lecturers as aforeſaid) may ſerve another as his Çu-
rate, or preach as a Lecturer in any Place of publick Worſhip, by the
Conſent only of thoſe that imploy them, but ought to be admitted by
their reſpective Archbiſhop, Biſhop, or Ordinary, and at their Admiſi-
on to fubſcribe before fuch their Archbiſhop or Ordinary, the Declara-
tion or Acknowledgment, the Form of which is fet down before Cap.
15. And if they do not fubfcribe as aforeſaid, they loſe and forfeit
fuch Curate's Place and Lecturc; and after Subfcription made, fuch
Curate and Lecturer are to procure a Certificate under the Hand and
Seal of their Archbifhop, Biſhop or Ordinary, before whom they ſub-
ſcribed, who upon Demand are bound to make and deliver the ſame,
and publickly to read the fame Certificate, together with the Decla-
ration aforeſaid, upon fome Lord's Day within three Months next fol- the Certifi.
lowing, in the Pariſh-Church where he is to officiate, in the Preſence of care, Soc.
the Congregation there aſſembled in the Time of Divine Service, upon Months
the Pain aforeſaid.
Scet. 19. And it is alſo enacted, That no perſon ſhall be, oz be re: 13 & 14.
ceived as a Ledurer, or permitted, fuffered og allowed to preach as a Car. 2. ca. 4.
Chapel o2 other place of publick Wojſhip, within this Bealm of Eng-
land, oz the Dominion of Wales, and Cown of Berwick upon Tweed,
unleſs he be firft approved, and thereunto licenſed by the Archbiſhop of
the Povince, od Bifhop of the Disceſe, cor in Caſe the See be void) by
the Guardian of the Spiritualities under the Seat, and thall in the pre-
tence of the ſame Archbiſhop of Bifh op, 02 Guardian, read the Nine and
Thirty Articles of Weligion, mentioned in the Statute of the Chir: Reading the
teenth Pear of the late Dueen Elizabeth, with Declaration of his un-
feigned aflent to the ſame. And that every Pstron and perſons who
now is, of hereafter chall be licenſed, afligned and appointed, oz received
as a Lecturer to preach upon any Day of the Week, in any Church,
Chapel az Hace of publick Tuo ihip within this Realm of England, oz
Places
And to read
within three
208
The Clergy-Man's Law: Or, Chap. XIX.
ers, Erc.
Le&ure Day
in every
Month.
If the
Curate; and Places aforeſaid: The firſt Time be preachetl, before his Sermon,
Lecturers.
mall openly, publickly and Colemnly read the Common-Players and
Service in and by the ſaid Book appointed to be read fod that Time of
the Day, and then and there publickly and openly declare his adent un
Declaring to and approbation of the ſaid Book, and to the uſe of all the Play:
his Affent to ers, Rites and Ceremonies, Forms and Duders therein contained and
mon-Pray. preſcribed, accožding to the form before appointed in this AX : And al
ſo fall upon the firſt Lecture Day of every month afterwards, ſo long
The like up- as he continues Leãurer of Preacher there, at the Place appointed for
on the firſt his faid Ledure of Sermon, befoże his ſaid Leuare 02 Sermon, openly,
publickly and ſolemnly read the Common Prayers and Service, in and
by th: Caio Book appointed to be read fod that Time of the Day, at
which the Caid Ledure 02 Sermon is to be preached, and after ſuch
Keading thereof, thall openly and publickly befože the Congregation
there allembled, declare his unfeigned allent and Conſent unto, and
approbation of the ſaid book, and to the Uſe of all the Prayers, Rites
and Ceremonies, Forms and Diders therein contained and preſcribed
according to the form afoželald ; and that all and every ſuch perſon
Diſability and Perſons who thall negle& od refule to do the ſame, ſhall from theice:
for Neglé&. foth be diſabled to preach the ſaid, of any other Le&ure ol Sermon in
the ſaid or any other Church, Chapel, or Place of publick Tuorthip,
until ſuch Time as he and they ſhall openly, publickly and folemnly read
the Common Payers and Service appointed by the Caio Book, and
conform in all points to the Things therein appointed and pzeſcribed
accolding to the Purpot, trile Intent and Meaning of this act.
Sect. 20. Provided always, That if the ſaid Sermon 02 Lecture be
Le&ture be to be pzeached or read in any Cathedral ol Collegiate Church od Chas
ima Cathe- pet, it ſhall be ſufficient for the ſaid Ledurer openly at the Time aforeſaid
dral,
to declare his aflent and Conſent to all Things contained in the ſaid
Book according to the form aforeſaid.
Sect. 21. and be it further enacted, That if any perſon who is by
preach after this aa diſabled to preach any Lecture 02 Sermon, thall, during the
Diſability.
Time that he thall continue and reniain lo dilabled, preach any Sermon
of Lecture, that then for every ſuch Offence, the Perſon and Perſons
Puniſhment. Co offending thall ſuffer three noonths Jmpriſonment in the common
Gaol, without Bail 02 mainiprize ; And that any two Juſtices of the
P:1ce of any County of this kingdom and Places aforeſaid, and
the Mayoz oz otijer Chief magiſtrate of any City, Town Corporate
within the ſame, upon Certificate from the Didinary of the Place,
made to him ol them of the Dffence committed, liall and are hereby
required to commit the Perſon of Perſons lo offending to the Saoi
of the ſame County, City od Town Cappojate accordingly.
Sect. 22. Prvided always, and be it further enacted, That at all
be preſent at and every Time and Times when any Serinoni 02 Lecture is to be
the reading
preached, the Common Prayers and Service in and by the faid Book
Prayers. appointed to be read fou that Time of the Day, hall be openly, pub-
fickly and ſolemnly read by ſome prieſt of Deacon, in the Church,
Chapel 02 Place of publick Tollhip, where the ſaid Sermon o, Lecture
is to be preached, before ſuch Sermon ol Ledure be peached, and that
the Lecturer their to preach, ſhall be preſent at the reading theres
of.
Sect. 23. Provided nevertheleſs, That this ad fhall not ertend to
tend to the the Univerſity Churches in the Univerſities of this Realm, 02 either
Univerſities.
of them, when 02 at lucb Times as any Sermon or Lecture is preach-
Not to
Lecturer to
Conmon-
Not in CR-
I
ED
Chap. XIX. The Complete Incumbent. 209
Lecturers.
cap. 8
ed, oy read in the ſaid Churches or any of them, fol oy as the priblick Curatrs and
Univerſity Sermon 02 Ledure, but that the ſame Sermons and
Leaures may be preached ou read in ſuch Solt ol Danner, as the
Came have been heretofoje preached oj read; this Aã oz any thing
herein contained to the contrary thereof in any wiſe notwithftand-
iig.
And it hath been ſince enacted, by os Car. 2. c. 6. Chat whereas ſome 15 Car 2.6:
Doubt hath ariſen, whether Parſons prohibited to preach by 14 Car. ing Person's
2. C. 4. are in the ſame Plight as to Punithment with Perſons dit: prohibited.
abled by the ſaid Statute to preach. Be it declared and enaĉed,
That the Penalties by the ſaid a&, to be infliãeð upon any Perſon
diſabled by the ſaid Ad to preach foz any Offence againſt the ſaid gå.
fall in like manner be indiđed upon every perſon ſo offending, that is
prohibited by the ſaid Ad to preach, any thing, Doubt oj Ambiguity in
the ſaid ad to the contrary notwithtanding.
Hither
may be referr'd (with Regard to Curates and Curacies) the 29 Car. ż
Stat. 29 Car. 2. c. 8. for Auginentations to ſmall Vicarages and Cura-
cies (which ſee hereafter Chap. 39.) See alſo Gibſon's Codex. pag. 756,
757, &c.) as alſo the Stat. 12 Anna. Sel. 2. cap. 12. for the better 12 Anne.
Sel. 2. c. 120
Maintenance of Curates within the Church of England, and for
pre-
yenting any Eccleſiaſtical Perſons from Buying the next Avoidance of
any Church Preferment; viz.
twhereas the abſence of Beneficed Minifters ought to be Sup.
plied by Curates that are Sufficient and Licenſed Preachers, and
no Curates od Pinifters ought to ſerve in any place without the
Eramination and admiſſion of the Bifhop of the Dioceſe, 02 Didi-
nary of the Place, having Epiſcopal Jurisdiâion : But neverthe-
Jels, fou want of ſufficient Maintenance and Encouragement foz ſuch
Curates, the Cures within that part of Great Britain called England,
have been in ſeveral Places meanly Supplied: fou Remedy where-
of, Be it Enaữed by the Dueen's moft Ercellent Majeſty, by and
with the advice and Conſent of the Lods Spiritual and Temporal,
and Commons in this preſent Parliament afembled, and by the au-
tholity of the ſame, Chat if any Rełoż od Uičar having Citre of
Souls, ſhall from and after the Nine and twentieth Day of Septem-
bers in the Year of our Loid, Dne thouſand ſeven hundzed and four-
teen, Nominate and Pulent any Curate to the Biſhop og Didinary,
to bé Licenſed od admitted to Serve the Cure of ſuch Reãoz oz Ui:
car in his Abſence, the ſaid Biſhop 01 Dudinary, having regard to the
greatneſs of the Cure, and the value of the Ecclefiaffical Bene-
fices of ſuch Rekod o2 Uicar, ſhall, on oj befoze the Granting ſuch
Licenſe, Appoint, by Writing under his hand and Seal, a ſufficient
certain Stipend ol Allowance, not erceeding Fifty Pounds per
Annum, no2 leſs than Twenty Pounds per Annum, to be paid oz
Anſwered, at ſuch times as he call think fit, by ſuch Reãoz oz Ui-
car, to ſuch Curate, for his Suppołt and Maintenance ; and if it
fhall appear to the Biſhop Ol Didinary, tipon Complaint oj others
wiſe, That any Curate of ſuch Reãoy oy Wicar, Licenſed od admit
ted befože the ſaid Nine and twentieth Day of September, in the Year
of our Lojd, Dne thouſand ſeven hundjed and fourteen, hath not a
ſufficient Maintenance, It ſhall be Lawful to and for the ſaid Biſhop
DJ Didinary to Appoint him a certain Stipend o2 allowance, in like
manner
;
0.9
.
!
210 The Clergy-Man's Law: Or, Chap. XIX.
Curates and manner as before inentioned ; and in Cafe any Difference ſijall a:
Legurers.
riſe between any Rewol of Wiçar, and his Curate, touching ſuch
Stipend oz allowanici, od the payment thereof, the Bilhop Ol Didi:
nary, on Complaint to bin made, ball Summarily bear and Deter:
mine the fame, and in caſe of Negled or Refuſal to Pay fuch Sti:
pend ol allowance, may Sequefter the Profits of luch Benefice, for
od yntil Payment thereof,
Alno whereas ſome of the Clergy have Plocured Preferments
foj themſelves, by Buying Ecclefiaftical Livings, and others have
been thereby dilepykjged: Be it further Enađed by the Juthojity
afozefaid, That if any perſon, from and after the Twenty ninti
Day of September, Due thoufand ſeven bundled and fourteen, thalt
02 dp, for any pum af Poney, Reward, Gift, Profit ou advantage
direaly az indirexly, oz for ou by reaſon of any Promiſe, agreement
Grant, Bond, Covenant of other afuranee, of op foz any Sum of
mooney, Reward, Gift, Profit, od Benefit wbatſoever, direaly or in
dire&ly, in his own Name, od in the name of any other perſon az
Perſans, Taße, Procure, 92 accept the next Avoidance of, az Pue-
ſentation to any Benefice with Cure of Souls, Dignity, Prebend,
or Living (cclefiaftical, and ſhall be preſented, or Collated thereupon,
that then every ſuch Pžefentation o2 Collation, and every admition,
Inſtitution, Jnveftiture and Juduđion upon the ſame, thall be utterly
Woid, frugrate, and af ng Effed in Law, and ſuch Agreement ſhall
be deemed and taken to be a Simoniacal Contrat ; and that it hall
and may be Tayful to and fou the Dueen's Pajelty, ber þeirs and
Succeffors, to preſent of Callate unta, ol Wive of Bettow every
luch Benefice, Dignity, Prebend, and Libiis Ecclefiaftical, for that
Dne tinie oz turn only; and the Percou co corruptly Taking, P20-
curing, ou accepting any fuch Benefice. Dignity, Paebend, of Living,
mall thereupon, and from thencefo2th, be adjudged a diſabled Per
Ton in Law to have and enjoy the came Benefice, Dignity, Prebend,
of Living Eccleſíaftical, and fall alſo be ſubjek to any Puniſhment,
Pain a2 Penalty, Limited, Preferibed or Ingjäed þy the mus &c
clefiaftiçal, in líké manner as if Inch corrupt 4greement bath heen
made after fucb Benefice, Dignity, Quebellid, ar living Ecciefiatical
pad becanje vacant; Sny Lal ol Statute tg the contrary in awy pile
ijptwithfanding
l
C H A P.
Chap. XX. The Complete Incumbent.
2II
-
Homillion
A110 Hefur a!.
CH Η Α Ρ.
XX.
Of Preſentations and Admiſſion of Clerks Vide Chap. is
preſented; what Preſentations are good;
and what are Cauſes ſufficient for the Bi-
shop to refuſe to admit; Of Jure Patro-
natus, and Caveats.
HA
Clerk is
hindred
duction,
Admiſſion
Aving ſhewed both what are the Ordinary and Extraordinary Remedies
Means, by which a Clerk muſt take a legal Title to an Eccle- where a
fiaftical Benefice, it remains to be ſhewed what Remedies the Law
doth afford the Clerk in caſe he be hindred in his Deſign of taking a
Title by any of the aforefaid Ordinary or Extraordinary Ways. If the
Church be preſentable (a Preſentation being had) the Impediments to
be removed in ſuch Cales, are to be met with, either when the Clerk
doth go to the Biſhop for Admiſſion and Inſtitution, or to the Arch- In his Admir-
deacon for Induction. As to the Biſhop, it muſt be remembred, that fion or In-
he, in admitting and inſtituting, is not to be look'd upon as a mere
Miniſter or Inſtrument, but as a Judge. 15 H. 7. 8. do "And therefore
in many Cafes, he may refuſe to admit the Clerk that is preſented to
him, and juſtify his Refuſal; wherefore it is meet, before I fpecify
the Remedies the Law hath provided, in caſe a Clerk be unjuſtly re-
fuſed, that I firſt declare what are and what are not the juſtifiable
Cauſes of a Refuſal. The Cauſes of a Refuſal may ariſe either from
the Perſon of the Clerk, the Preſentment he brings, or from the Con-
dition of the Church to which he is preſented, c.
Firſt, They may ariſe from his Perfon, for every one that is prefented Cauſes of
to a Church, ought to be duly qualified to perform the Duties of the Refuſal of
Incumbent thercof, and this the Law of Reaſon doth render ſuffici-
ariſing froin
ently evident; therefore he ought to be ordained, or made a Miniſter, the Perſon of
according to the Direction of the Laws. Mich. 12 and 13 Eliz. Dyer the Clerk.
292. For whatever the Law hath been as to Lay-men, in reſpect of
Deaneries, Prebends, and other Benefices without Cure, and as to Dea-
cons in reſpect of Benefices with Cure; yet as the Law now ſtands,
neither Lay-men nor Deacon, but only a Prieſt according to the Form A Prieſt only
and Manner by the Book of Common-Prayer preſcribed, or fornierly capable to be
by Epiſcopal Ordination, are capable to be admitted to any Parſo-admitted.
nage, Vicarage, Benefice, or other Eccleſiaſtical Promotion or Dignity
whatſoever, upon Pain to forfeit for every Offence One Hundred
Pounds, except only the King's Profeſſor of the Law within the Uni-
verſity of Oxford, who máy hold the Prebend of Shipton in the Ca-
thedral Church of Salisbury, although he be but a Lay-man. Stat.
14 Car. 2. C. 4. But although no other than a Prieſt duly ordained,
is capable of being admitted to an Eccleſiaſtical Prefernicnt, yet
if
Clerk doth go to the Biſhop with a Preſentation for Admiſſion and In-
ftitution, not having with him Letters of Orders to teſtify that he is
a Prieſt duly ordered, nor making any Proof thereof, for which Rca- not having
ſon thc Biſhop doth then refuſe to admit him, but the Biſhop, at the his Orders.
Qq2
Clerk's
а.
Refufal for
212
The Clergy-Man's Law: Or, Chap. XX.
Cauſes of
Gefuial.
ܪ
examine his
Clerk's Requeſt, doth give him a Week's Time to bring them, and
the Clerk doth not return before the Patrons fix Months paſs; yet it
was held by Perian and Anderſon, that the Cauſe of the Biſhop's Re-
fuſal to admit was not ſufficient, and that he ſhould not have the Turn
by Lapſe, for that the Clerk is not bound to fhew his Letters of Or-
ders ; but it was urged, that the Clerk that is preſented ought to
He need not make Proof to the Biſhop that he is Deacon, and that he hath Orders,
hex his or otherwiſe by the Statute 13 Eliz. the Biſhop is not bound to admit
him (for as the Law was then, a Deacon was admittable): To which
it was ſaid, that the Statute doth not compel the Clerk' to ſhew his
Orders, for perhaps he hath loſt them ; but then it was a Queſtion
how the Clerk ſhould make Proof that he was in Orders
; for, that
he ought to do that, ſeems to be granted; to which Anderſon ſaid, that
the Biſhop may examine him upon Oath if he hath Orders or not :
However, Judgment was given againſt the Biſhop. Paſch. 33 Eliz.
C. B. Palmes and Biſhop of Peterborough's Cafe. 1 Leonard 230.
fame Cafe. 3 Cro. 241. which ſeems to be a hard Caſe, unleſs the Bi-
Shop hath not only Authority to cxamine him, as Anderſon ſays upon
Oath, but be alſo bound to do it of Office upon the Clerk's Refuſal to
ſhew his Orders. And in this Caſe it was alſo ſaid, that although a
Clerk doth not exhibit to the Biſhop Letters Miſſive or Teſtimonial,
teſtifying his Ability and good Behaviour, yet the Biſhop ought not to
refufe the Clerk, or to defer the Admiſſion of him upon the Account
of giving the Clerk a Day to bring the fame, becauſe the Biſhop is
Biſhop may by Examination to try the Ability of the Clerk, and may alſo make
Enquiry concerning his Behaviour, for which the Law allows him
Ability, Coco
Time convenient; yet although a Clerk doth bring to the Biſhop Let-
ters Teſtimonial, which do report him to be ſufficient to ſerve the
Cure, and to be of honeſt Behaviour ; yet the Biſhop may notwith-
ſtanding proceed to the examining of him, as to his Ability, and may
take Time to enquire of him as to his Behaviour, and it is ſaid that
In 28 Days twenty eight Days are allowed by the Law for that Purpoſe. 1 Rolls
Abr. p. 354, and 355. And ſhould the Biſhop be ſatisfied both as to
the Clerk's Ability and Honeſty, yet he is not bound inſtantly to ad-
What if the mit him ; for if a Clerk coming to the Biſhop for Admiſſion, be com-
Biſhop be
buſy.
manded by him to come to him again afterwards to be examined, for
that then he hath other Buſineſs, this is no Refuſal of the Clerk, ſo
that if the Clerk return not again for the Admiſſion, and the ſix
Months paſs, and the Biſhop collate by Lapfe, this will be a good Plea
for the Biſhop, if he be ſued for collating. 14 H. 7. 21. and 15 H.71.
21. Quoted by Dyer. Mich. 15 Eliz. 3. Leonard 46.
If the Biſhop upon Examination doth find the Clerk prefented in-
on Inſufici-
fufficient to ſerve the Cure that is to be committed to him, he may
refuſe to admit him. Stat. de Art. Cleri. C. 13. Dr. and Stud. Lib. 2.
C. 26. And though the Clerk be otherwife learned, yet if he be
pre-
ſented to a Church in Wales, where the Parifhoners are to have Di-
Welsh vine Service in the Welſh Tongue, for that they underftand not Engliſh,
Tongue.
and the Clerk is not able to ſpeak Well, the Ordinary may refufe him
as uncapable of the Cure. Mich. 30 and 31 Eliz. Albany. v. Biſhop
of St. Aſaph. 3 Cro. 119. And the Reaſon, why the want of Well)
in ſuch Cafe is at this Day a juſtifiable Cauſe of Refufal, is, becauſe
of a private Act made the 5 Eliz. Entituled, An Act made for the
trandating of the Bible, and of the Divint Service, into the
Welſh Tongue. And now it may be further ſaid, I conceive, by rea-
3
for
Timc.
Refufal up-
ency.
2
Chap. XX. The Complete Incumbent.
213
Refuſal.
i
underſtand-
ſon of a Clauſe in the Statute of 14 Car. 2. by which it is enacted, cauſes of
That the now Common-Prayers ſhall be tranſlated into the Welſh
Tongue, and being ſo tranſlated, ſhall be uſed by all Miniſters and
Curates in Wales ; for at the Common Law, before it was thus enact-
ed, Ignorance of the Welſh Tongue in a Perfon preſented to a Church
in Wales, was not a Cauſe of Refuſal of any Perfon preſented to ſuch
Church, and becauſe the Act of 5 Eliz, making this Alteration in the 5 Eliz. to be
Common Law was but a private Act, it was ſaid by Anderſon, the pleaded ſpe-
cially.
faid Act not being pleaded by the Biſhop, that they could not take No-
tice of it, but would adjudge according to the Common Law, and
therefore it concerns the Biſhop in the like Cafe to plead it fpecially:
Trin. 27 El. Albany and the Biſhop of St. Aſaph's Cafe. i Leon. 31. fame
Cafe. 3 Cro. 119. Or if a Perſon that doth not underſtand the Engliſh
'Tongue be preſented to a Cure in England, the Biſhop may refufe him
for ſuch Incapacity. Colt and Glover's Cafe. Hobart 147. But if he doth
underſtand our Language, altho' he be an Alien born, he is not to be Alien horn
refuſed. Mich. 8 Jac. č. B. Dr. Senton's Caſe in Parſóri's Laws, c. 10.
ing Englifs.
See Stat. 7 H. 4. and 14 H. 6. Although by the Statute of 13 R. 2.
and 1 H. 5. 6. 7. Frenchmen be difabled to have Benefices in England;
for it is thought that theſe Statutes are not in Force at this Day.
Roll's Abr. 2. p. 348. Yet Coke faid, That if the King will preſent
a Frenchman or Spaniard, they ſhall not hold the Benefice within this
Realm. Mich. 8 Fac. C. B. Walter's Cafe. Godbolt
. And Coke faith
alſo generally, That if any Alien or Stranger be preſented to a Bene- Alich or
fice, the Biſhop ought not to admit him, but may lawfully refufe him. Stranger.
4. Inft. f. 338. And this Opinion of Coke's is given on Conſideratiori
had of all the Statutes. And the Statute 3 R. 2. c. 3. doth exprefsly
prohibit all Aliens generally from having any Eccleſiaftical Benefices":
3 Tis true; that Rolle in the fame Place ſays, that an Aften may be
preſented to a Benefice, although other Aliens canriot have Freeholds
here, becauſe by Intendment they will favour their own Country, and
be againſt us in Time of War, and will tranſport our Treaſure out of
the Realm ; yet there is nof any ſuch Intendment, he fays, as to Spi-
ritual Men, and for that Reafor it was uſual anciently for Aliens to
have Promotions here : Front whence Rolle took tliis Notion, that
Spiritual Men Aliens would not tranſport the Nation's Treaſure, nor
favour their own Country in Time of War ; that it was only the Lay
that were to be intended guilty of ſuch Practices, I know not ; but aś Miſchiefs
ancient as E. I.'s Time and down onwards, the Fact was notoriouſly done by A-
taken Notice of to be otherwiſe, as appears by the Statute of Carliſle made liens Spiri-
35 Ed. 1. Statute of Provifers. 35 E. 3. 3 R. 2. and in the Petition of the
Commons made to the King 18 E. 3. complaining how that Strangers
were enabled by the Pope's Proviſions to enjoy Spiritual Preferments, and
among other Friconveniencies the Tranſporting of the Treaſure to nourifh
the King's Enemies, and Difcovery of the Secrets of the Realm, were par-
ticularly named. Cotton's Records 41. and as appears by ſeveral Places in
the fame Book, thoſe Mifchiefs were chiefly taxed upon the Aliens,
who were Spiritual Men, as Cotton record's, 49, 50, 61, 64, 65, 128,
179, &c. And as to what Rolle fays, that the ſuppofed Innocence of
Spiritual Aliers from the intended Inconveniencies might come to the
Nation by other Aliens, if they were allowed to enjoy Eſtates here;
was the Reaſon they were ſuffered to enjoy Ecclefiaftical Benefices here,
could not fure be the Reaſon, but rather the Pope's Uſurpation, and
a Submiſſion to his pretended Authority in Church Matters, and his
Providing
0
.
Oncerefuſed
Refuſal for
Baſtard.
nicated.
Egoc.
z Jerll's
214 The Clergy-Man's Law, Or : Chap. XX.
Saules of Providing many Eccleſiaſtical Preferments here to Aliens, his Friends
and Creatures, was the chief Reaſon Aliens enjoyed Benefices in Eng-
land, though other Rcafons probably might be fancied to diſtinguiſh it
from the Caſe of Laymen who had a Frcchold in their own Right;
but the Practice I believe has always continued to allow Aliens to en-
joy Eccleſiaſtical Benefices here.
When a Biſhop doth refufc a Clerk becauſe he is inſufficient, where-
may not be upon the Patron doth preſent another; if the Biſhop doth admit the
acccpred.
Clerk that was firſt preſented, and within the ſix Months, the Biſhop
is thereby a Diſturber, for that having once refuſed him for Inſufficien-
cy, he cannot afterwards accept him. Paſch. 26 Eliz. C. B. Biſhop of
Hereford's Cafe. 3 Cro. 27.
So a Clerk preſented may be refuſed, if he be perjured, before a
Perjury
lawful Judge. 38 E. 3. f. 2. Quare Impedit 134. And if by his own
Confeſſion he be perjured, he may be refuſed although no Conviction
Heretick be thereof. 13 Eliz. Dyer 293. b. 38 Ed. 3. 2. b. Or if he be an He-
retick or Schiſmatick. 5 H. 7. 20. Irreligious. 5 R. 2. Trial 54. Ba-
ſtard, and not diſpenſèd with. Mich. 7 8. 6. Rot. 523. Villain. 14 H.
Excommu- 7. 28. b. within Age, or if he or his Patron be excommunicated, if by
the Space of Forty Days. 15 H. 7. 7. b. contrary i E. 2. vouched
Outlawed, by Frowick. Mich. 21. H. 7. Keble 71. b. Or if he be outlawed,
guilty of Forgery; or hath committed Simony in the procuring of
the Preſentment he brings; or of another Preſentment to a former
Acrainted of Benefice. Trin. 16 Jac. Boughton and the Biſhop of Rocheſter's
Manſlaugh- Cafe. Roll's Abr. 2. p. 356, or hath committed Manſlaughter. 38 E.
Cafe. Hobart: 293. ſame Cafe. 2 Cro. 436. And it is faid, That the
Ordinary may refuſe a Clerk upon his Knowledge for an Offence com-
mitted by him, which is a good Cauſe of a Refuſal, although that
he be not convicted thereof by the Law, and this ſhall be tried by
Iſſue, whether it be true or not. 38 E. 3. 2. b. and generally, all
ſuch as are ſufficient Cauſes of Deprivation, are alſo fufficient Cauſes
of Rcfuſal. Hill. 32 Eliz. in Specott's Cafe, 5 Coke 58. the fame Cafe.
Gouldsborough 35. Jenkins p. 258, and in 3 Leon. 199. I Anderſon
Gamefter, 190. But although a Clerk be a Haunter of Taverns, and a Player
at unlawful Games, yet the Biſhop may not refufe him, becauſe theſe
Faults are not Evil in their own Nature, but only by Prohibition of
Law. 8 and 9 Eliz. Dyer f. 154. b. But this Çafe was denied to be
Law by Juſtice Barkly, and ſo agreed by Jones. Pafch. 15. Car.
March's Cafe 11. Nor is it ſafe for the Ordinary to refuſe a Clerk,
becauſe he is the Son of the laſt Incumbent of the Church, although
Filius Patri he ſhould not bring any Diſpenſation upon the Account of the Canon
non poteft fuc- Law, which faith, Filius Patri non poteft ſuccedere in Eccleſia ; be-
c
caufe, as was held, the Canon Law, in this Cafe doth not take Place
in the Church of England, (but Quære) for that the Archbiſhop of
Canterbury doth uſually grant Diſpenſations at the Requeſt of fuch
Clerks; but if the Ordinary doth refuſe for ſuch Cauſe, and the Pa-
tron doth preſent another, who is inſtituted and inducted, the firſt Clerk
without Remedy; and if he doth ſue the ſecond Clerk in the Spi-
ritual Court, he may be ſtopped by: a Prohibition to proceed in ſuch
Suit. Mich. 2 Car. B. R. Stoke v. Sikes. Noy 91. fame Caſe. Latch
191, 253. Neither may a Biſhop refuſe a Clerk, upon the Rcafon
that he hath another Benefice at the Time he brings his Preſentation,
although it be under the yearly Value of Eight Pounds, and will not
be vaided by the taking of the ſecond Benefice us to the Patron, ſo
ter, Egoce
General
Cauſes.
Erc.
Is
3
th
Chap. XX. The Complete Incumbent.
215
tiefular.
7. 28. 1.
Notice of
Refuſal to
that he be bound to preſent ; nor perhaps as to the Clerk and Pa- Caules of
riſhioners, ſo that he may not recover and receive the Profits of the
firſt Benefice, until ſuch 'Time as he be actually deprived, (for this is at
the Peril of the Clerk). for that if he be therein two Months, both
ſhall be yoid by the Canon Law, 17 H.
When a Biſhop doth refuſe a Clerk, he is, generally ſpeaking, to
give Notice to the Patron of ſuch Refufal, and to ſignify to bim the the Patron.
Cauſe thereof; that is, unleſs he refuſe Spiritual Perſons Clerk, for of
ſuch Refuſal he is not bound to give Notice, unleſs he refuſe him for
that he is a Villain, &c. 14 7. 7. 28. 18 H. 7. Kell. 49. b. 24: H. 7.
21. Accordingly, if a Biſhop doth refuſe the Clerk of a Lay-Patron,
for that he is not a Prieſt by Epiſcopal Ordination, he ought to give
Notice to the Patron of ſuch Uncapacity. Mich. 12 and 13 Eliz CB.
Dyer 292, ſo if he refuſe him becauſe illiterate, 18 H. 7. Kel. 49.b.
15 Eliz. C. B. Dyer 327, or becauſe he doth not underſtand the Lan-
guage fpoken by thoſe of whom he ſhould have the Cure. Trim : 27
Eliz. C. B. Albany v. Biſhop of St. Aſaph. i Leonard 31. fame Cafe.
3
Cro. 119, or if he refuſe him for any Crime, as Simony or Adulte-
ry, 6¢. Yet Frowick faith, That if the Ordinary doth refuſe a Clerk
for any notorious Crime, as becauſe he is a common Whorenionger,
or be commonly known to be guilty of Murder, the Patron is bound
to take Notice of ſuch Refufal at his Peril. Trin. 18 H.
7.
Kel. p.50.
but others hold the contrary. 7 Ed. 4. 20. Roll's Abr. 2. p. 364.
And it is ſaid generally, That if the Preſentee be criminous,
the Ordinary ought to give the Patron Notice of his Refuſal if he bé
Lay; but Spiritual Patrons are to take Notice at their Peril, that
their Clerks be rightly qualified. 24 H. :7: 21. 14 H. 7. 21. Bro. No
tice 6.
In Cafes when the Biſhop is to give Notice of the Refufal, he is The Cauſes
not only to fignify his Refufal of the Preſentee, but alſo the Cauſe or
to be ſignified
ſpeedily.
Cauſes thercof. 29 Eliz. Specot v. Biſhop of Exeter. Gouldsborough 35.
And fuch Signification ought to be made with as much Speed as con-
veniently it may; and therefore, where the Ordinary delayed to give
Notice to the Patron for the Space of twenty two Days, it was held
that the Notice was inſufficient, and that therefore the Biſhop ſhould
have no Advantage by Lapfe. Trin. 27 Eliz. C. B. Albany v. Bifhop
of St. Aſaph. i Leonard 32, fame Caſe. 3.Cro. 119, and Notice is to
be given in ſuch Caſes to the Perſon of the Patron, 15 Eliz. C. B.
3 Leonard 47, that is, if he be within the County where the Church
is at the Time of the Giving thereof; otherwiſe it is to be given to
him by an Inſtrument in Writing, affixed to the Door of the Church
to which the Clerk was preſented; but if Notice be given by ſuch In-
ſtrument as aforefaid before the Patron be enquired after, and a Re-
turn made that he is not to be found within the County, ſuch Notice
is not good. Trin. 10 Eliz. Dyer 327. b. Mich. 30 and 31 Eliz.
B. R. Albany v. the Bifhop of St. Aſaph. 3 Cro. 119. fame Cafe. I
Leonard 33.
When the Biſhop hath given Notice of his Refufal of a Clerk, this Whether the
doth not give the Patron a longer Time to preſent in than he had be- Time ſhall
fore, by Manwood Juſtice. Mich. 15 Eliz. C. B. 3 Leonard 46. For be prolonged
if the Church be fo void, that the Bithop is not bound to give the Pa-
tron Notice of the Avoidance, the Patron muſt preſent his feccnd Clerk
(if he think his firſt Prefentee to be juftly refus'd) within the fix Months,
accounting from the Time the Avoidance happened. But if the Church
be void by ſuch Mícans, as that the fix Months do not run without
duc
or not.
2
216
The Clergy-Man's Law: Or, Chap. XX.
ز
Preſentment
to a full
Church is
void.
Cauſes of
duc Notice to the Patron of the Avoidance, and the Patron doth
prea
Hefuſal.
ſent his Clerk before the Ordinary hath given hinı any Notice thereof;
if the Ordinary doth refuſe his Clerk, and give Notice of his Refuſal,
yet the Patron (I conceive) hath fix Months, accounting from the No-
tice of the Biſhop's Refuſal, to make his ſecond Preſentment in, be-
fore Lapſe can incur, and ſo it ſeems to be held. Mich. 15 and 16 Eliz.
C. B. Dyer 327. But if the Biſhop had given Notice of the Avoid
ance before the Patron preſented, and then he refuſes the Patron's
Clerk for juſt Cauſe, and doth give Notice thereof, the Patrons fix
Months are to be accounted from the firſt Notice:
If the Biſhop
Though the Perſon of a Preſentec be altogether without Exception,
find the Pre- yet the Biſhop may juſtly refuſe to admit and inſtitute him
upon
the
fentment to Account of his Preſentment; that is, in caſe he doth find his Preſent-
ment to be void. Grendon's Cafe. Plowden 502. For a void Preſent-
ment is as no Preſentment, and the Clerk in ſuch Cafe is without
Remedy; and if the Biſhop ſhould admit and inſtitute upon ſuch Pre-
ſentment, he is a Diſturber, and not the Perſon that preſented. Mich.
8 Jac. Dr. Ayry v. Sir Richard Lovelace. i Bulſtrode 91. That is,
where the void Preſentment is made to a Church of another's Right;
and yet by Croke 'tis faid, that the Uſurpation is only in the Incum-
bent procuring himſelf to be inſtituted, and that he is the wrong Doer,
eſpecially in the Caſe of the King who can do no Wrong, but in
ſuch Caſes is ſuppoſed to be deceived. Mich. 16 Car. B. R. Yates v.
Sir John Dryden. i Croke 592.
A Preſentment may be ſaid to be void in ſeveral Refpe&ts, although
it be good as to the Form, and duly tendered to the Biſhop; for firſt,
a Preſentment is void, if it be made to a Church when it is full of
an Incumbent, for at ſuch Time the Patron hath no Title to preſent.
17 Ed. 3. 59. Small's Cafe. Stat. 13 Rich. 2. c. 1. and Rud v. Biſhop
of Lincoln. Hutton 66. and in Grendon's Cafe. Plowden soo b. And
ſo if the Incumbent be inſtituted only, for thereby the Church is full
againſt all but the King. Mich. 15 Jac. Rone's Cafe. Popham 133.
and againſt the King too, ſo that he cannot revoke his own Preſent-
ment and preſent another. Yet note, That although a Church, ge-
nerally ſpeaking, be filled by Inſtitution alone, and in the King's Cafe,
however, by Induction, ſo that a Preſentation made to ſuch Church
is void; yet this Rule fails in fome Caſes, for if the Church be filled
by the Preſentation of a Stranger by Ufurpation, that is, if the Clerk
of the Uſurper be but inſtituted to a common Perſon's Church, or be
inducted to a Church of the King's, the Church is thereby ſo full of
the Uſurper's Clerk, that if the Biſhop inſtitute the Clerk of the true
Patron, before the Uſurper's Title be avoided by Recovery or other-
wife, and his Clerk removed, it will be a Super-inſtitution, and void.
Mich. 15 Fac. B. R. King and Saher's Cafe. Roll's Abr. 2. p. 349.
ſame Caſc. 3 Bulſtrode 89, and Roll's i Rep. 235. Co. 6. 29, 49. b.
Fitz. Nat. Brev. 36. K. I H. 7. 19. Yet if the true Patron before
the Church hath been filled of the Ufuper's Clerk by fix Months, doth
make Letters of Preſentation, although the Biſhop may, and ought
to refuſe his Clerk if preſented, until ſuch Time as he hath recover-
the Preſentment then made is good, be it exhibited to the Bi-
ſhop or not, for if the true Patron doth recover upon his Writ brought,
and then his Clerk doth exhibit the fame Preſentment, 'tis good, and
the Inſtitution thereupon valid. Grendon's Caſe. Plovden 500, yea al-
though it be exhibited, and the Clerk inſtituted before any Writ is a-
warded
1
ed, yet
2..
Chap. XX. The Complete Incumbent:
219
tuted:
!
is a
Induction
awarded to the Biſhop to remove the Uſurper's Clerk, and to admit Collation by
wurong.
him, by Coke. Michi 12 Jac. Whiſtler and Singleton's Cafe. Roll's
Abr. 2. p. 350. Trin. 13 Žac. Harris v. Auſtin. 3 Bülſtrode 41. Rudd Writ to rew
v. the Biſhop of Lincoln. Hutton 66. Grendon's Cafe
. Plowden şoo. W sweepers
But I conceive, that the Biſhop is not bound to admit (tho' he may if he clerk.
will) before the faid Writ is awarded. However, the Ufurper's Clerk
doth continue Incumbent until the Recoverer's Clerk is inſtituted, and Recoverer's
till then the Church is ſo full of him, that tho', as is ſaid after the Clerk infti-
Recovery, he that recovered may preſent, and his Clerk be inſtituted,
cc. yet if a Stranger to the Recovery (though his Title be beſt) ſhould
preſent to the Church, his Preſentment ſhould be void, as being made
to a Church that is full. Mich., 13 Jac. B. R. Fairbank and Dur-
ham's Cafe. Roll's Abr. 2. p. 350.
So if A. and B. be Tenants in Common of an Advowſon, and the Where one
Church being void, a Stranger's Clerk is inducted, upon which A. and Tenant in
B. bringing their Qzare Impedit, B. is fummoned and fevered, and Stranger to
after A. recovers, B. may not preſent before other Removal of the the Reco-
very.
Uſurper's Clerk, becauſe a Stranger to the Recovery; nor may he
preſent the Ufurper's Clerk, becauſe the Clerk's Acceptance of his Pre-
ſentment doth not make the Church void to him. Dubitatur. Mich.
13 Jac. B. R. Fairbank and Durham's Cafe. Roll's Abr. 2. p. 350.
Alſo the aforeſaid Rule, That Inſtitution and Induction fills the Rule of In-
Church, fo that a Preſentation made to ſuch Church is void, fails, ftitution and
if the Inſtitution and Induction be made upon a void Preſent- fails
.
ment; therefore if when a Church is void, a Stranger doth pre- By Simony.
fent thereto by Simony, though Inſtitution and Induction be had
thercupon, yet the Church remains void to the rightful Patron,
and if he preſent, his Preſentation is good; and the Reaſon is, becauſe
the Preſentation, Inſtitution and Induction of him that came in by Si-
mony are mecrly void. Stat. 31 Eliz. c. 6. Co. Litt. 120. So if the
true Patron doth preſent by Simony, and his Clerk is inſtituted and in-
ducted, yet the Church remains open to the Preſentment of the King
to whom the Turn is forfeited, and to the Pariſhioners, who may
therefore detain their Tythes, but not to the Preſentment of a Stranger; Tythes de
for if he that hath no Right doth preſent thereto, his Preſentment is
void. Hobart 227. Winchcomb's Cafe. And ſo I conceive that the
Preſentment of another Stranger will be void, if made to a Church
filled by the Simony of a Stranger, as in the other Caſe.
The aforeſaid Rule fails, if the Church be filled only by a wrong to fails by *
ful Collation ; that is, if the Ordinary doth collate upon the King's Collation.
Lapſe, or without Title of Lapſe to a Church, the Right of preſent-
ing to which is in a common Perſon. Trin. 44 Eliz. Green's Cafe. 6
Coke 29. b. But if a Church be by Lapſe come to the Metropolitan,
and after the Ordinary that had paſſed his Time doth collate his Clerk
within the ſix months of the Metropolitan, the Church is thereby ſo
filled, that if the Metropolitan ſhould collate his Clerk, it would be
void, by Finch in Sir Francis Popham and the Biſhop of Bath and
Wells Caſe. Roll's Abr. 2. p. 350. It is alſo there faid, that the
Church is thereby full againſt the Preſentation of the Patron, but that
ſeems to be contrary to Boſwell's Cafe. Mich. 3 Jac. 6 Coke 5o. Jen-
kins Cent. 7. Cafe 62. Becauſe the Biſhop's Uſurpation is only upon
the Archbiſhop, and not the Patron. And in all Cafes, when the General Ob-
Church is not otherwiſe filled than by Inſtitution and Induction upon fervation up-
a void Preſentment, or by wrongful Collation (except the Collation be on a void
made upon him that hath Right to collate) although the Clerk, by ment, etc.
Rr
whom
tained.
1
9
218
The Clergy-Man's Law: Or, Chap. XX.
Centation
boio.
Church be
c.
king's Pies whom the Church is filled, hath remained as Incumbent ſome Years:
yet if after the Patron doth preſent his Clerk to the Biſhop, bis Pre-
fentment is not void, but the Biſhop may, and ought to inſtitute him
thereupon, and the Inſtitution ſhall be good to the outing of the other
But if the Incumbents and if the Biſhop refuſe, the Patron may by Suit recover
his Preſentment. Green's Cafe. 6 Coke 29. and Boſwell's Cafe: 6 Coke
duly filled,
50. Co. Litt. 344. But if a Church be once duly filled of a Clerk,
although the Clerk be after deprivable, yet until ſuch Time as he is
actually deprived, the Patron may not preſent; ſo if a Viſitor by Com-
miſſion from the King doth return into the Chancery good Matter of
Deprivation of the Clerk of the King; yet if the King doth preſent
before the Clerk is actually deprived, his Preſentation is void, and
the Biſhop may refuſe in both Caſes. Roll's Abr. 2. p. 342. Contra.
17 Ed. 3. 59. b. but otherwiſe it is where the Church is, for ſome
25 Ed. 2. 3.
Fault or Defect in the Clerk, declared by the Law to be actually
void.
And here we may take Notice that it hath been enacted, that, Whereas
before this Time our Lold the King hath taken Title to pzeſent to
Benefices at the Suggeſtion of many Clerks, where the Title hath
not been trile, and by ſuch Preſentments and Judgments thereupon
given, the Clerks have been received by the Dudinaries of the Place,
againſt God and god faith, and in Depzellion of them which had
god and true Title to the ſaid Benefices; now the king will and
granteth, That at what Time he ſhall make Collation of Preſent-
ment from henceforth to any Benefice in another's Right, that the
Title whereupon he groundeth himſelf ſhall be well eramined that it
be true: And at what Time before Judgment the Title be found by
uwd Information untrue ol unjuſt, the Collation oj Pretentment
tvereof made ſhall be repealed. And the Patron or the Polletto?
which fhall Chew and prove the falle Title, thall have thereupon Wirits
out of the Chancery, as many as to him thall be needful. Satute for
the Clergy,' 25 Ed. 3. 3.
And afterwards it was enacted, Whereas it was odained by a Statute,
made the Twenty Fifth Pear of the Reign of King Edward, the
Grandfather of our Lord the King that now is, that at what Time
that the king fhall make Collation oj Pieſentment to any Benefice
in another's Right, that the Title upon which he groundeth himſelf
ſhall be well examined that it be true, and at what Time before Judga
ment given, the Title be found by gwd Information untrue and not
juſt, the Collation of Preſentment thereupon made ſhall be repealed;
and notwithſtanding the ſame Statute, ſome of the King's Pueren
tees by Favour of the Didinaries be inſtituted and induded in Be:
nefices of Holy Church without due Proceſs, the Parties not warn-
ed nqz called, and ſometimes taken by falſe Enqueſts favourably,
and the Incumbent in ſuch panner put out. It is ondained and
affeiited, That the ſaid Statute be firmly holden and kept : Ana
mojcover our Lord the King, fou the Reverence of God and Holy
Church, doth Will and Gyant; That if he preſent to any Benefice
that is full of any Incumbent, that the Preſentee of the Ring ſhall
not be received by the Didinary to the Benefice, till the King hath
recovered his Preſentment by Proceſs of tbe Law in his own Court,
and if any Picſentee of the King be otherwiſe received, and the
Inicumbent plit out without due Proceſs, as afove is ſaid, the ſaid
In:
13 Rich. 2.
C. l.
4
Chap. XX
219
The Complete Incumbent.
ſentation
void.
fincumbent thail vegin his Suit within a year after the Indu&i. King's Pre-
on of the King's Preſentee at the leaſt. Stat. 13 R. 2. cap. 1.
And laſtly, with reſpect to the former Statute, it was enađed; Where:
as it is ojdained by the Statute made the Twenty Fifth Year of 4 H. 4. 2 25
King Edward, Grandfather to our Lojd the King, that if the King
make Collation of Preſentment to any Benefice in another's Right,
that the Title whereupon he groundeth him ſhould be well eramined
that it be true, and at what Time, before Judgment given, the Ci-
tle be found by god Infomation untrue and unjuſt, the Collation
02 Peſentment thereof made, ſhall be repealed and adnulled. And
moreover, in a Statute made after, in the Time of King Richard,
it was ojdained and eſtabliſhed, that if the King preſent to any Be-
nefice that is full of any Incumcent, that the king's Preſentee thall
not be received by the Dudinary till the King hath recovered his
Preſentment by Proceſs of the Law in his own Court ; and if any
Puſentee of the King ve otherwiſe received, and the Incumbent put
out without due Proceſs as afoje is ſaid, the ſame Incumbent ſalt
commence his Suit within a year after Induđion of the Preſentee.
Dur Lojd the King conſidering the great Miſchief of the Juicumbent
in this behalf, hath oqdained and e ſtabliſhed by the affent aforeſaid,
that if any ſuch Jlncumbent be put out of his Benefice without due
Proceſs in the manner afojelaid, that the ſaid 3ncumbent lo put out
without Proceſs may be at large, and ſue for his Remedy by the ſaid
Statute, and begin his Suit in this Cale at what Time fhall pleaſe
him within the year, oj after at his Will, and that as well fod the
Time paff, as for the Time to come, notwithſtanding the Terin lo
limited by the ſaid Statute. 4 H. 4. 22.
If the Church be open to the Patron's Preſentation, yet in ſome where the
Caſes the Preſentation, by ſuppoſing a Right where there is none, will King pre;
be void, as in the Caſe of the King. If the King doth preſent rati- Colour of
one Lapſus, or in theſe Words, Ad noſtram Præſertationem five ex Right. "
pleno Jure, five per Lapſum temporis, live alio quocunque modo [pec-
tant', and hath no Colour of Right, the Preſentment is void. Ürin.
44. Eliz. Greendit v. Baker, Yelverton 7. Jenkins Cent. 6. Cafe 28.
Mich. 16 Car. B. R. Yates v. Sir John Dryden. 3 Cro. 592. Trin.
44 El. B. R. Green's Caſe, 6 Co. 29. b. and will not make any Uſurpa-
tion; for where the King's Preſentation without Right amounts to
make an Uſurpation, it is not to report or expreſs any Right in the
King, becauſe the King hath no Right, but is to be made to the
King's Pre
Church generally : But if the King in ſuch Cafe hath Title to pre- ſentation
ſent upon any Account whatſoever, the Preſentment is good, but it is General,
a ſafe way to make the King's Preſentation general. Hill. 17
Fac. Gawdy v. the Biſhop of Canterbury, &c. Hobart 302. The
Caſe of Sir John Tufton and Sir Richard Temple and others. Hill.
17 & 18 Car. 2. C. B. Vaughan 14. The King 0. Thorneborough and
Studley. Trin. 29 Car. 2. C. B. 1 Mod. Rep. 254. However, Inſtitu- Upon a void
tion being granted upon ſuch void Preſentment, the Inſtitution is not
alſo void, but is ſaid to be as a Collation of the Biſhop's, and the tion, &c.
Clerk is Incumbent as to all Eccleſiaſtical Matters, to have Offerings, Patron's
Tythes, &c. againſt all but the Patron, who, may preſent at any
Time, or he may bring his Writ of Quare Impedit when he pleaſeth,
and remove the Incumbent if named in the Writ, otherwiſe not, as
the Chief-Juſtice Hobart ſaid; or may grant the Advowſon before he
hath done either, as not being put out of Poſſeſſion, by Inſtitution and
Rr 2
In-
!
ſafeít.
Preſentnient
and Inititu-
Right faved.
220
The Clergy-Man's Law: Or, Chap. XX.
Epr.
Where the
Title of si-
mony
King's Pre- Induction, upon fuch void Preſentment. Hill. 27 7ac. Gawdy v. the
rentation,
Biſhop of Canterbury, &c. Hobart 302.Rudd v. the Biſhop of Lincoln,
Hutton 66.
King's Right So if a Clerk be preſented by the King to a Church, the Right of
miſreported.
preſenting to which doth belong to him, and the Preſentment doth
mifreport the King's Right, as for the Purpoſe doth mention it to be
ratione Lapſus, when in Truth it is Jure Corone, GC. the King is
deceived, and the Preſentment is void, and ſo are the Admiſſion, In-
ſtitution and Induction thereupon, they being made without any Pre-
fentment. _Mich. 8 Jac. Humfton v. Cockitt in B. R. 2 Cro. 252.
Trin. 44 Eliz. Green's Cafe, 6 Co. 29, that is void only eis quorum
intereſt. See the Opinion of Allen in his Argument of Knight v.
Dauncer, Trin. 11 Car. 2. 1 Keble 312. and Paſch, is Car. 2. Brown
V. Spence, i Keble soz.
If one doth preſent Simoniacally to a Church, of the which the
Advowſon is Advowſon is in the King, and if the King doth after preſent thereto,
and he pre upon a Title of Simony, the King hath thereby miſtaken his
. Title
ſents upon a and his Preſentment is void, becauſe in ſuch Cafe, he
ought to pre-
fent Jure Patronatus, as having a ſuperior Titlc; and the Simony gives
him no new Right, for it gives him but the Turn which was before
in him with the Inheritance. Green's Cafe, vouched in the King and
Zaker's Caſe. Mich. 13 Jac. B. 3. Bulfr. 89. But if the King ha-
ving Right to preſent to a Church, being ſeiſed of the Advowfon there-
of in Right of his Dutchy of Lancaſter, doth prefent pleno jure under
the broad Seal, and not by the Seal of the Dutchy; or if the Lord
Chancellor, or Lord Keeper, had preſented to any Church belonging
to a Ward, the fame being under Value, the Title is not miſtaken,
but the Preſentment is good ; becauſe a Preſentment may be made by
Word only, as being but a Commendation of a fit Clerk to the Ordi-
nary, and a Preſentation belonging to the King upon the Account of
Dutchy of
his Dutchy, &c. is his pleno jure, as well as thoſe that do belong to
Larcafler.
him in the Right of his Crown. Mich. 11 Jac. the King v. the Bi-
Shop of Lincoln and King, Moor 874. 2 Cro. 248.
King pre-
If the King himſelf ſhould preſent any one uport an Avoidance con-
fonts contra-
ry to Ad of trary to an expreſs Act of Parliament, his Prefentation is meerly void.
Parliament. Mich. 8. Jac. C. B. Waller's Cafe, Parſon's Law cap. 10. And if
the King ſhould preſent upon a Title accrued to him by Simony, the
Clerk that was guilty of the Simoniacal Contract, as being Party or
Privy thereunto, ſuch Preſentation would be void, that Clerk being
for ever diſabled to hold the fame Benefice by Act of Parliament,
viz. Stat. 31 Eliz. c. 6. 3 Inft. 154. Hob. 75. And ſuch Preſentation
would not ſerve for the King's Turn.
By the Chan When the King miſtakes his Title, his Preſentment, as hath been
cellor, & co fhewed, is void ; ſo if the Lord Chancellor of England, or the Lord
Preſentment Keeper of the broad Seal, who (by Vertue of their Office) preſent to
to be of un- Benefices of the King's Gift that are under the Value of Twenty
Pounds in the King's Books of Firſt-Fruits, do preſent to any of the
King's Benefices which are above the ſaid Value under the broad Scal,
and in the Preſentment it ſelf it be recited, that the Benefice, to which
the Preſentment is made, is under the Value of Twenty Pounds, the
Preſentment is void, becauſe the Deceit doth appear upon Record :
But if the Chancellor or Keeper do in Fact make a Preſentment ge-
nerally under the broad Seal without ſuch Recital unto a Benefice of
the King's Gift, valued at Twenty Pounds or above, in the King's
Books
der Value.
Chap. XX.
221
The Complete Incumbent.
Refufal.
miſtaken,
1
Books of Firſt-Fruits, ſuch Preſentation is good, and the Clerk ſhall Cauſe of
enjoy the Benefice without Remedy; becauſe Preſentations made by
the Chancellors or Keepers are ſuppoſed in Law to be made by the
King, they being in his Name; and there is no Difference in the form
when it is made by the King, and when by the Lord Chancellor, fa-
ving that for the moſt Part the one is Mandantes, the other Rogantes.
Lord Chancellor's Cafe, Hobart 214. But where 'tis ſaid, that the
Chancellor's or Keeper's Clerk, ſhall enjoy ſuch Benefice without Re-
medy, it is to be ſuppoſed that the Clerk is as well inducted as inſtitų-
ted, for otherwiſe the King may revoke his Preſentment, and preſent an- Revocation
other, for ſo it is ſaid in that Cafe. See 38 E. 3, 4.
by the King.
If a Corporation in preſenting doth miſtake the Name of their Foun- Name of
dation, the Preſentation is void ; therefore when a Provoſt did preſent Foundation
by the Name of the Provoſt of the College of the Queen in Ox011,
whereas it fhould have been Aule Scholarium Regina de Oxon, ac-
cording to the Foundation ; it was adjudged, that by Reaſon of the
Omiſſion of the Word Scholarium, feveral Preſentations did not make
an Uſurpation, becauſe the Preſentments were void. Mich. 8 Jac.
Doctor Ayry v. Sir Richard Lovelace, 1 Bulſtr. 91. And yet it is ſaid,
Trin. 8. Fac. C. B. King v. 2 Cro. 248, to be ruled in the Cafe
of the Dean of Norwich (where the Preſentation was by the wrong
Name of a Corporation) yet that the Preſentment was good, Quære.
If a Corporation do preſent their Head, as if the Dean and Chapter
do preſent their Dean; or if a Maſter of an Hoſpital doth preſent him-
ſelf to a Church, the Advowſon of which doth belong to the faid
Hoſpital, although the Preſentation be by the perſonal Name of the
Dean and Mafter, and not by the Name of Dean or Maſter, and In-
Wherca
ſtitution and Induction be made thereupon, yet the Preſentation is Perſon, &c.
meerly void, and no Plenarty gained thereby ; inor is ſuch Clerk ena- preſents him-
bled by the Statute of 25 E. 3. to plead in Barr, 12 H. 8. 12. Br. tit.
Alby and Prior, nu. 23. 14 H. 8. 2. Quare Impedit. See Jenk. Cent.
5. Cafe. 18. Davis 76. And ſo it is, if any private Perſon doth pre-
ſent himſelf; but Quere, whether the Inſtitution and Induction in ſuch
Cafes be meerly void, ſo that Lapſe may run from the Time that the
Church became firſt void? But I conceive they are not ſo, but the Dean
and Chapter may well preſent one of their Chapter, or any Corporati-
on one of their Members, in Harris's Cafe v. Auftin. Trin. 13 Jac. 3
Bulſtr. 43. Or if there be two Joint-tenants of the next Avoidance,
the one may preſent the other. Trin. 31 H. 8. Sir Godfrey Fuliamb's
Cafe. Moor 4, 5. Dyer 305. Or they may preſent their Grantor,
Palm. 300.
Laſtly, if a Stranger doth prefent upon a true Patron in Time of In Time of
War, though his Clerk be inſtituted in Time of Peace, yet the Pre- War.
ſentment is void, and all that followed thereupon, ſo that the Biſhop
may admit the rightful.Patron's Clerk. 6 E. 3. 41. Co. 6. 30. Green's
30 Trin. 33 El. Bingham's Cafe, 2.Co. 93.
A Preſentation every way good may become void by Revocation. Revocation,
Mich. 15 and 16 El. i Anderſ. Cafe 99, and then the Biſhop may not
only refuſe, but is bound not to admit; for if the Biſhop doth inſtitute
the Clerk firſt preſented after his Preſentation is revoked, a Quare Im-
pedit lies againſt him, as a Diſturber, by Dodderidge in Evans and
Aſcouth's Cafe, Latch 248. And ſuch is the King's Prerogative, that
When by the
he may revoke or repeal a Preſentation made by him at any Time before
. King
Inſtitution. 14 E.z. Quare : Impedit 5.-28. E. S. Rot. Patentium Mem-
j
Caſe. 30
brana
222 The Clergy-Man's Law: Or, Chap. XX.
Csure of
Rifutat.
in Law.
6 b
brana 24: 2 E. 2 Rot. Patentium Membrana 3. Fitz. Nat. 34. cap.
27. d. Trin. 12 Eliz. Dyer 292. 70. 7 H. 4. 32. Trin. 45 El. Green's
Cafe, 6 Co. 29. b. He may revoke after Letters obtained for Admiſli-
on, Inſtitution and Induction, before the fame be executed. 14 E. 3.
Quare Impedit 5. But if the Preſentee of the King be inſtituted, the
King cannot after that revoke his Preſentation according to ż Rolls
Abr. p. 353. Dubitatur, 18 Eliz. Dyer 348. 25 E. 3. 47. And in
Dyer 360. b. there it ſeems to be admitted that the King may revoke
before Induction, fo alſo it is ſaid in the Caſe of Kitchin and Calvert,
Lane 104. And’tis commonly held that a Church is not full against
the King, but by Induction ; fo that if the Preſentee of the King doth
Revocation die after Inſtitution, and before Induction, this is a Revocation in Law,
and the King ſhall preſent again, though it be in the Cafe where he
hath but one Turn, becauſe the King had not the Effect of his Pre-
ſentment. 20 El. Dyer 363, but about this point the Court was di-
vided. 18 El. Dyer 348. 12 Co. 2 Hobart 339. So if the King dies
before his Clerk be inſtituted and inducted, his Death is as a Revocati-
on in Law of the Preſentment made by him, and it is ſaid by ſome to
be an expreſs Rcvocation. Mich. 8 Fac. Scaccario and Hill. 8. Jac.
Scaccario, Calvert and Kitchin's Cåſe. 2 Rolls. Abr. p. 354, ſamo
Cafe, Lane 71, 102. So if the King hath preſented his Clerk, and the
Clerk hath gained Inſtitution, and then the King dies (although the
Death of the King had been a Repeal of the Preſentment) ſo that his
Succeſſor needed not have made any expreſs Repeal of it, if no Inſtitu-
tion had been : Yet, Tanfield Baron ſaid, that Peradventure in ſuch
Caſe there ought to be an expreſs Repeal, becauſe here is not only
the King's Ac, but the Act of the Ordinary alſo hath interpoſed, viz.
his Inftitution, which is a judicial Act, Kitchin and Calvert's Cafe,
Lane 104. In which Caſe it was alſo held, that as to the Statute of
6 H. 8. C. 15, that a Preſentation is not comprehended therein, and
ſo the King not obliged thereby to a Recital of his firſt Preſentment; if
he make a Second, or to an expreſs Repeal of the fame, and that in
an Action of Treſpaſs brought by the latter Preſentee, it being an Acti-
on Poffeſſory for the Profit, it is not examinable whether in the ſecond
Preſentment there ought to be a Repeal of the firſt, but that it may
be examinable in a Quare Impedit.
If the Lord Chancellor, or Keeper of the broad Seal, do prefent to
a Benefice of the King's, under the broad Seal, ſuppoſing it to be un-
der the Value of Twenty Marks in the King's Books of Firſt-Fruits,
when in Truth it is above that Value, and the Clerk is admitted and
inſtituted; yet before Induction the King may repeal ſuch Preſentation
and preſent in his own Name, becauſe the King had a Right prece-
dent. 38 E. 3. 3. b. 9. This Caſe is, I conceive, to be underſtood,
that the Living is not recited in the Preſentation to be under Value,
elſe according to the Lord Chancellor's Caſe, in Hobart 214, before-
mentioned, the Prefontation will be void, and if ſo, it can be no Que-
ſtion in the King's Cafe, at what Time it may be revoked. If the
Ordinary in this caſe hath admitted and inſtituted the Preſentee of the
Chancellor, but before he hath made a Warrant to the Archdeacon
King's Inhi- for Induction, the King doth ſend to him an Inhibition, reciting that
bition before the Church is of the Value of Twenty Marks per Annum, or above,
and fo doth appertain to the Chancellor to preſent, commanding the
Ordinary to receive another Clerk; if after ſuch Inhibition the Ordina-
ry doth make a Warrant to the Archdeacon to give Induction, and the
Arch-
Where the
Chancellor
miſtakes the
Value,
Induction
3
Chap. XX
223
The Completė Incumbent
peal,
Archdeacon doth thereupon induct, the Ordinary ſhall be a Diſturber, king's dies
but the Induction is good till it be avoided by Coke in Hitching and
Glover's Cafe. Roll's 1 Rep. 191. But if the Ordinary had ſent bis
Warrant to the Archdeacon to give Induction before the King's Inhibi-
on came to him, although the Ordinary after the Inhibition did not
fend to the Archdeacon to {top making of the Induction, (as he may
if he pleaſe repeal his Mandate at any 'Time before the Execution of
it, the Archdeacon being but his Miniſter,) but fuffered the Induction
to be given a Month after, he ſhall not be adjudged a Diſturber, for
that there was no Default in him, 38 Ed. 3. 3. 4. 9, io, but Quære
if the Ordinary be not in this caſe bound to ſend to the Archdeacon
to countermand his making the Induction, for to that purpoſe is this
Caſe cited in Hale and Buckley's Cafe. Plowden 528. b.
After the King hath repealed his Preſentation, if the Clerk preſent- King's Re-
ed doth get to be inſtituted and inducted, altho' no Notice of the Re- peal effeétu.
peal was given to the Ordinary, the King may preſent another Clerk, Notice:
and the Ordinary cannot refufe him without being a Diſturber ; for bý
the Revocation of the firſt Clerk's Preſentment without Notice, the
Preſentment is ſo abſolutely void, that if after he had got Inſtitution
and Induction thereupon, the King would confirm his Title, his Con-
firmation would be alſo void, and the Church ſtill remain open to his
Preſentnient. 12 El. Dyer 292. 25 E. 3. 47. Co. 6. Green's Cafe: 29:
b. Dubitatur, 16 El. Dyer 328. b. for the Repeal is effectual before
Notice, and the giving Notice to the Ordinary thereof, is only to make
the Ordinary chargeable as a Diſturber, if he proceed afterwards.
Roll's Abr. p. 2. p. 351. But if the firſt Preſentee doth inſiſt upon his
Title, and an Action is brought againſt him, the Repeal muſt be made
to appear to the Court where 'tis pleaded, elſe the Pleading of it only
without being produced will avail nothing. 14 E. 3. Quare Impedit,
Fitz. Tit. Quare Impedit 5. 7. H. 4. 13, but if the King before the
due Execution of the firſt Preſentation doth preſent another by a fe-
cond Preſentment, though it be without any Mention of the firſt Pre-
ſentment or other Revocation, the ſecond Preſentation is good. Michi
15 and 16. Eliz. Anderſon 1. Cafe 99. Mich. 4 Fac. Biſhop of Ban-
gor and William's Cafe. Parſon's Law, cap. 12. and vouched by
Bromly. Hill. 8 Jac. Kitchin and Calvert's Cafe. Lane 103. 38 Ed.
3. 3. 4. 7 H. 4. 32. that is, unleſs the ſecond Preſentment was ob- Second Pre-
tained by Fraud, and in Deceit of the King. Hill. 17 El. Dyer 339, how good.
Rolls 206, 190. For if the King doth preſent A. who being refufed
by the Ordinary brings Quare Impedit, and pendant the fame, B. doth
get another Preſentation by Fraud in Deceit of the King, without any
Mention therein of the King's Pleaſure to revoke or repeal the firſt,
although the Ordinary doth inſtitute B. and cauſe hinı to be inducted,
the Preſentment of Ă. ſhall not be void, nor the Church ſo full of
the Perſon of B. but that A. may be admitted ; for if the ſecond Pre-
ſentation ſhould in this Cafe be good, it ſhould enure to a double In- May not
tent, viz. to take away the Action attached, and alſo as a Preſentati- enure to
on, which the Law will not tollerate without expreſs Words purport- Intent.
ing ſo much ; but eſpecially, the King being deceived and certifying
ſo much to the Judges before whom the Suit is depending, betwixt the.
Preſentees, that he was deceived, as was done in this Cafe. Hill. 17
El. Dyer 339. b. Trit. 44 El. Green's Cafe, 6 Co. 29 b. But if there
be an expreſs Revocation in the ſecond Preſentment, it is otherwiſc.
Hill. 8 Jac. in Kitchin and Calvert's Caſe, Lane 103.
Though
ſentation
a double
1
224
The Clergy-Man's Law : Or, Chap. XX.
Common
Not after
Inſtitution.
.
Preſentatie Though the King may revoke his Preſentment, yet it is a Queſtion
on revoked; whether a common Lay-Patron hath that Liberty by Law, for the
Whether a Civilians are ſaid by Dodderidge to affirm, that he cannot revoke, but
Lay-Patron
only vary, cumulando, Hill
. 2 Car. Stoke v. Sykes, Latch 254. and ſo
may revoke. Roll's, in his Abr. Part. 2. p. 354. faith, That by the Common-Law,a
common Lay-Patron cannot revoke his Preſentation, quoting only Dy-
er, 18 El. fo. 348, where it is faid, That the Preſentment of the Queen
before Induction is revocable. by her Prerogative, which is not ſo of a
Preſentation made by a Subject'; but this may be faid only, becauſe
'tis paſt Doubt that a Subject cannot revoke after Inſtitution, as the
King may: However, Dyer fo. 392, 'tis faid, that a Lay-Patron can
no more change his Preſentation, than a Spiritual Patron may. Vide
Quare Impedit, Fitz. Tit. 31 Ed. 1. 185. 38 Ed. 3. 35. And it is
declared in Anderſon's Cafe, That if a rightful Patron doth preſent af-
ter an Uſurper hath filled the Church, and his Clerk be refuſed as he
ought to be, after he hath recovered, he that had this Preſentment
may
exhibit it to the Biſhop, and the Patron cannot revoke or give him
a new Preſentment. But on the other ſide, Dodderidge faid, that by
the Common-Law, without Queſtion, a Patron before Inſtitution may
revoke his Preſentment. Hill. 2 Car. Stoke v. Sykes, Latch 254, 192,
and by Dodderidge in Evan's and Aſcouth's Cafe. Hill. 22 Jac. Latch
248. However, a common Perſon cannot change his Preſentment
after his Admiſſion, by Gawdy, in Robbins and Prince's Caſe. Hill.
42 Eliz. Gouldsborough 163, but the aforeſaid Authorities are more to
be regarded ; and this is to be noted, that a common Lay-Patron, if
he
any way
revoke his Preſentation (as I think he may not) but only
vary, yet he cannot revoke it, after his Clerk is inſtituted thereupon,
becauſe Inſtitution doth fill the Church againſt the common Patron ; in
all which Cafes aforeſaid where a Preſentation is ſaid to be void, the
Biſhop may refuſe to admit the Clerk preſented, and not be charged in
any fort as a Diſturber.
Although a good Preſentation be made by the true Patron to his
i. e. prefent void Church, yet the Biſhop may either admit or refuſe his Clerk,
and be no Diſturber, for after the Patron hath preſented one Clerk to
a void Church, if he be a Lay-man he may (as hath been ſaid) vary,
that is, preſent another Clerk, before the Biſhop hath received his firſt,
38 Ed. 3. 36. b. Skene Regia Majeftat. 10. b. v. 3. 31. Ed. 1. Quare
Impedit. 185. 38 Ed. 3. 36. b. 14 Ed. 3. 2. b. and then the Ordinary
may admit or refuſe which of the Clerks he pleaſeth, Roll's Abr. 2.
p. 353, 354. Hill. 2 Car. Stoke v. Sykes, Latch. 191, 154. And if a
Patron dies. Church being void, the Patron doth preſent, and then doth die before
his Clerk, is admitted, this is no Revocation in Law of the Preſent-
ment, 24 Ed. 3. 30. for if his Executor doth preſent another Clerks
preſents
this ſecond Preſentment is alſo good, and the Biſhop is at his Liberty
which Clerk to receive. Trin. 21 Eliz. Smallwood, * &c. v. Biſhop of
Litchfield, &c. i Leonard 205. But otherwiſe it is in the Caſe of the
King, for his Death revokes and voids his Preſentment. Mich. and
Hill. 8. Fac. in Calvert and Kitchin's Cafe, per Cur. Lane 103. The
Lay-Patrons Privilege of varying is to be extended ſo far, as that if a
Patron hath made Letters of Preſentation to one Clerk, who exhibit-
ing them to the Biſhop, is by him unjuſtly refuſed, and during the
Clerk's Endeavour at Law to get Inſtitution, his Patron doth preſent
another, who is inſtituted and inducted; the firſt Clerk is without Re-
nicdy, and if the firſt Prefentce doth fue the fecond, and the Ordinary
A Patron
y
another
Clerk.
Executor
another,
in
4
Chap. XX. The Complete Incumbent:
225
in the Spiritual Court, he may be ſtopped by a Prohibition. · Hill. 2 Dorth of thić
bizhop, c.
Car. Stoke v. Sykes, Latch 191, 254, and fame Cafe. Noy 91.
In the Caſe of the King, the King only (as hath been faid before) King's 2d
by making a ſecond Preſentation before his firſt Preſentee be inducted, Preientation
or at leaſt inſtituted, and without any exprefs Revocation of the firſt, lute Repeal
.
or any Mention thereof, doth repeal, and abſolutely make void his for-
mer Preſentation. Mich. 8 7ac. Scaccario, Hill. 8 Jac. Scaccario,
Calvert and Kitchin's Cafe. Roll's Abr. 2 p. 354. Lane 1036
Yea, though the firſt Preſentee bring a Quare Impedit for be-
ing refuſed by the Biſhop, or be admitted and inſtituted after the
fecond Preſentment is made, and before any Admiſſion there-
upon is had, and though he doth recover in the Quare Impedit, and
hath Induction, yet all this will not mend his Title, and make his Pre-
ſentation good. Mich. 15 and 16 El. Anderſon's Cafe 99 Lane 104.
from which it follows, that the Biſhop hath not the Liberty of ex-
cepting which Clerk he pleaſeth in the Caſe of the King, as he hath
Agreed tliat
in the Caſe of a common Perſon. And it was agreed by Coke, War- the King
burton and Foſter, that the King may vary in his Preſentation, with- may vary
out reciting the former, notwithſtanding the Statute of 6 H. 8. 15.
Trin. 8 fac. King v.- 2 Cro. 248. Sce Calvert and Kitchin's
Cafe, Lane 104. And I ſuppoſe, what hath been ſaid of Preſentations
made by the King, will hold alſo as to Preſentations made by the
Lord Chancellor, or Lord Keepers that is, that the Lord Chancellor Lord Chan
or Lord Keeper may revoke their Preſentations to Livings under Value ćellor, &c
at any Time before Induction, at leaſt before Inſtitution, for that ſuch
Preſentations are in the King's Name, and by Law made by the King
himſelf. See Hobart 214.
Though the King may revoke, and void his Preſentment, and any
Ecclefiafti.
common Lay-Perſon may vary, yet a Biſhop or other Eccleſiaſtical
Perſon can neither revoke his Preſentment, nor vary in preſenting. can neither
Hill. 2 Car. Stoke v. Sykes, Latch 191, 254, and if ſuch Eccleſiaſti- revoke, nor
cal Patron doth preſent one that is not fufficiently learned, he cannot
preſent another; if he do, the Biſhop may refuſe or admit him at his
Pleaſure, Mich. 1 H. 8. Keilway 154, and the Reaſon is, becauſe e-
very Spiritual Perſon is in Law ſuppoſed to be able to judge of the
Sufficiency of his Clerk, and becauſe a Preſentation made by a Spiri-
tual Patron hath the Force of an Election, and he that elects an unfit
Perfon, is, ipſo Jure, deprived of his Power of Electing, Skean Ma-
Biſhop's
jeftatem 10. b. v. 3. 31. Ed. 1. Quare Impedit 185. 'Yet it is ſaid, Death.
That if a Man preſents his Clerk to the Biſhop, who dies before that he
is received, he may preſent another, 38 Ed. 3. 36. b. and this holds
good (I ſuppoſe) in the Caſe of an Eccleſiaſtical Patron.
As when a common Lay-Patron doth vary, the. Biſhop is at Liberty
which Clerk to receive, and if a Spiritual Patron doth preſent an
unſufficient Clerk, the Biſhop may alſo chuſe whether he will receive
another better qualified; fo though the true Patron doth preſent but
one Clerk to his void Church, the Biſhop may ſafely in ſome Cafes
refuſe to admit him, though he be ſufficient ; for if three Joint-Te-
nants be of an Advowſon, or next Avoidance, and one or two of them
do preſent alone, the Biſhop is not any Diſturber if he refuſe ſuch
Clerk, though he may admit if he pleaſe, and good, 1 Inft. 186. b.
for he is not bound to admit the Clerk, if all the Joint-Tenants do
not join in a Preſentment, 6 Ed. 4. 10, 14 Eliz. Dyer 304; 54, or if
two Joint-Tenants be feiſed of an Advowfon, and the one doth prefent.
alone, the Ordinary may refuſe his Clerk, becauſe of their Joint-Ti-
Sf
tle.
cal Perſon
į
vary.
The Rea
fon.
226
The Clergy-Man's Law, Or : Chap. XX
tation of
ncrs.
Grantecs.
Grantee:
31
SThe Church tle. t İnſt. 186. b. So it is if a 'Tenant in common doth preſent a-
Jitigious.
lone ; for that one 'Tenant in common or Joint-Tenant cannot put the
other out of Poſſeſſioni Quare Impedit 12. Doctor and Student, cap.
30. L. 2. i İnft. 186. 6. Pafch. 17 Jac. Rite and the Biſhop of Bri-
ſtol's Cafe. Roll's Abr. part 2. p. 372; and they are ſaid to be but as
one Patron, s H. 7. 8. 6 Ed. 4, and ought to agree in á Preſentment,
Refuſal up- 13 Eliz. Dyer 304. So if our Copartners be of an Advowſon, and the
two Eldeſt, or the Eldeſt and the Third preſent one, and the other
Coparce do preſent another, and not altogether, for that the Eldeſt or ſhe whole
Turn it was to preſent, did not preſent alone, the Ordinary may refuſe
all their Clerks, the Eldeſt Siſter having no Privilege, but where ſhe
preſents alone. Co. Lit. 186. b, Doctor and Student, L. 2. cap. 30:
Parlor's Counſellor 21. But if á Grant of a next Avoidance be made
to three, and after the Church doth void; and two of the three do
preſent the third Grantee being a Clerk, this is a good Preſentments
Aliter by
of the 3
and the Biſhop cannot refuſe him, although all three were Joint-Te-
nants thereof by the Grant, and only two of them joined in the Pre-
ſentment, becauſe the third Perſon could not preſent himſelf; and he
may relinquiſh his Title, and accept of a Preſentment from the others,
Dyer 13 and 14 Eliz. 304. So if one that is feiſed of an Advowfon,
doth grant to three or more Perſons, & eorum cuilibet conjunctim edi
diviſion Heredibus, Executoribus, & Affignatis ſuis primam & proxi-
By one
man Advocátionem, and one of the ſaid Grantees without the reſt
doth preſent another of them to the Avoidance granted, this is a good
Preſentment. Trin. H. 8. Sir Godfrey Fuliamb's Cafe. Moore 4.
Bendloe p. 34. and i Anderſon 2. 21 Ed. 4. fol. 66. 13 H. 8. fol. 12.
35 H. 6. fol. 62. But if the grant had been to three or more, Ha-
bendum eis conjunétim divifim, and if one of the Grantees being
preſented by another of them alone without the reſt, and the Biſhop
had refuſed, Peradverture, faith Dyer, a Quare Impedit by him would
have failed, for the Severance in the Habendum in this caſe ſeems void
in Law. Mich. 13 and 14 Eliz. Dyer 304. See 21 Ed. 4.66. And
in all theſe Caſes of divers that have Right jointly preſenting ſeveral-
ly, in which Caſes the Ordinary is not bound to admit, no more is he
bound to award a Jure Patronatus, but may fuffer Lapſe to incur ;
yet the Ordinary cannot collate until the fix Months be paſſed, for if
he do, they may after agree, and bring a Quare Impedit againſt him,
Thoughan and remove his Clerk. Doctor and Student, L. 2. cap. 20. In like
Incumbent manner, if one being feiſed of an Advowfon doth make his Will, and
cannot pret therein doth conſtitute three Executors, and appoints that they or any
yet he may of them ſhall preſent A. one of the Executors, or any other of them
upon
the next Aboidance, though the Perſon appointed to be preſented
doth not refuſe the Executorſhip and could not have preſented him-
ſelf, and though the Devifor were the Incumbent, and ſo the Church
did become void by his Death ; yet the Preſentation made of him by
the other Executor is good. Trin. 13 Jac. Harris v. Auftin, 3
Bulſtrode 43. But though a Patron cannot preſent himſelf, yet he
may pray to be admitted by the Ordinary, and good; but if he pre-
ſent himſelf, tho' by a ſtrange Name, he may be put out.
put out. 35 H. 6.
55. Br. Quare Impedit i.
Refufal, the Laſtly, The Biſhop may refuſe a Preſentee upon the Account of the
Church be- Church's being (as 'tis termed) litigious; which is, when two ſeveral
ing litigious.
Perfons do preſent their ſeveral Clerks to the Biſhop, to be admitted
by him. Pafch. 16 Eliz. C. B. Gerrard's Cafe, 3 Leonard 98. In .
3
which
Habendari
void.
pray to be
admitted.
Chap. XX. The Complete Incumbent.
227
which Cafe; the Biſhop may and ought to refuſe both Clerks until Jure Pa-
the Right be enquired of ; and if he doch admit either Clerk (unleſs Laple, sc.
the Clerk admitted upon Tryal be found to be preſented by the right-
ful Patron) he will be puniſhed as a Diſturber ; by Hobart, Micl.. 15
Jac. Brickhead; v. Archbiſhop of York, Hobart 197.
Where one Patron doth preſent his Clerk before any other hath pre- Where one
fented, the Church is not yet litigious, therefore if the Biſhop doth re- preſents bc-
fufe him, he is a Diſturber; and tho' another ſhould after preferit; ther, the
whereby the Church then doth become litigious, yet that will not Biſhops
upon refuie.
ought 110t to
excuſe the Biſhop from being a Diſturber, if the firſt Patron be
Trial found to have the better Title, nor® can he have the Benefit of
Lapſe, though no Action be brought againſt him, which makes it ſafe
for the Biſhop to receive him that comes firſt ; but then a Queſtion
may be made, How can a Church (the Biſhop acting thus fafely for
himſelf) ever become litigious? And how can it be truly ſaid, that the
Biſhop may juſtly refuſe both Clerks upon Account of two ſeveral
Patrons making their ſeveral Preſentments to him, unleſs the Preſen-
tees ſhould happen to tender their Preſentments at one and the
fame Time, which is not to be fuppofed ?
In Anſwer to which, 'tis true, that if the Biſhop doth unjuſtly refuſe Difference
the Clerk of the true Patron before any other Preſentment is made, Biſhop's
although the Church, by another Perſon's preſenting after, doth become fufpending
litigious, he will not be excuſed (the true Patron pievailing at Law) the admifi-
from being a Diſturber ; but there is a great Difference betwixt the an'abſolute
Biſhop's ſuſpending the Admiſſion and Inſtitution of a Clerk, and his Refuſal.
abfolute Refuſal of him : A Biſhop is not bound inſtantly upon a Pre-
ſentment tendered to admit, if he hath other Buſinefs in Hand, but
may appoint the Clerk to repair to him at another Time to receive
Admiſſion and Inſtitution, as hath been ſhewed. And when a Perſon
is preſented to him, he may take competent Time to examine his
Sufficiency, and to enquire and inform himfelf of his Converſation, as
hath alſo been ſhewed. Mich. 18 Jac. Hellways and the Archbiſhop
of York's Cafe, Jones 4, and ſo faith Hobart in the fame Cafe, as re-
ported by himſelf, Hobart 317, or he may take Time by awarding
à Jure Patronatus, to enquire of the Patron's Title, although only fure Patro-
one Perſon hath preſented, Jones 4, within which Time another may natus.
preſent, and then the Biſhop may fafely refuſe both, and if they do
not profecute their Rights, may have the Turn by Lapſe. Br. Quare Lapſe.
Impedit 80.
Alſo a Church is become litigious, if two ſeveral Patrons claiming Where two
by ſeveral Titles, ſhall preſent one and the fame Perſon ſeverally to
à Church; for in this Caſe the Biſhop cannot admit the Preſentee ge- fent the
nerally, but muſt admit him of the Preſentation of one of them only, fame Perſon,
Parſon's Law, cap. 13. fol. 100, and therefore may award a Jure Pa-
tronatus, whereby to inform himſelf in whom the Right is; but this
he is not bound to do, but at the Requeſt of the Parties. See before,
Chap. 12. But if no Requeſt is made to have a Jure Patronatus a-
warded, and the Patrons do not profecute their Rights at common
Law, the Biſhop may, I conceive, after the ſix Months expired col-
late for Lapſe.
Lapſe.
Alſo a Church may become litigious, if after a Jure Patronatus Where a
is awarded, and Verdict given thereupon, another Clerk is preſented
new Fure
by a Patron whoſe Right was not diſcuſſed in the Jure Patronatus, be- muſt be.
fore Admiſſion is requeſted of any. Clerk by him for whom the Ver-
SE 2
dict
1
feveral
Patrons pre-
Patronatus
228 The Clergy-Man's Law: Or, Chap. XX.
,
A&tion a-
Iſſue.
Where two
fer,
Title.
Flure Pas dict was found
dict was found ; and in this Caſc a new Jure Patronatus upon Re-
Laple, soc. queſt is to be awarded. Degge's Parſon's Counſellor fol. 14, 15. But
if one hath preſented, and his Title is found upon a Jure Patronatus,
and then requeſts the Biſhop to have his Clerk admitted, and after
another preſents, in this Cafe the Biſhop ſhould for his Safety admit
the Clerk of him for whom the Verdie is found, becauſe elſe the
Biſhop a Di- Church becomes litigious by his Delay, which will make him a Di-
ſturber by
ſturber; and if he doth not admit but ſuffers Lapſe to come to himſelf,
Delay.
and then collate, 'tis ſaid he is a Diſturber againſt both Preſenters. And
in this Caſe, in an Action brought againſt the Biſhop, and the ſpecial
gainſt the
Matter being made appear By the Pleading, the iſſue ſhall be, whe-
Biſhop, and
ther he, for whom the Title was found, did fue to have his Clerk ad-
mitted, and whether the Second preſented fo haftily to the Biſhop, that
he could not admit the Clerk of the firſt before the fecond Preſenta-
tion was made. 21 H. 6. p. 44. If two Patrons preſent their ſeveral
Verdi&s are Clerks, and cach of them hath at his Requeſt a Jure Patronatus
had, and dif- awarded ſingly, (as they may) and the Verdiĉt of the one Jury is con-
trary to the Verdict of the other ; in this Caſe the Church remains ſtill
litigious, and the Biſhop need not admit the Clerk of either Patron,
Lapſe. but ſuffer the Church to lapſe to himſelf, as is held. 21 H, 6. 44. Br.
Quare Impedit 80. But Sir Simon Degge makes a Quære, Whether
the Biſhop in this Cafe may let the Church lapſe, and fo collate? Or,
Whether he be not bound to admit one of the Clerks at his Election
Two claim- Parlor's Counſellor 14. But if two Coparceners be of an Advowſon,
ing by one and the Church doth void, whereupon they do ſeverally preſent to the
Ordinary, this doth not make the Church to be litigious, becauſe they
claim but by one Title. Parſon's Law, cap. 13. And ſo it is, I ſup.
poſe, where Tenants in Common, or others that have a joint Title,
prefent ſeverally.
Although the Biſhop, by receiving the Clerk of him that firſt ten-
gainſt hafty ders his Preſentation to him, doth thereby quit himſelf of all Dan-
ger of being found a Diſturber, becauſe he hath done nothing but as
Ordinary ; yet it is highly reaſonable upon an Avoidance, (though it
happen to be by fuch Means that he is not obliged to give the Patron
Notice thereof) that the Biſhop doth not too haſtily admit any Perſon's
Clerk, but that he give what Time he may to all Perſons intereſted
to take Knowledge of the Avoidance, eſpecially if a Preſentation be
made within a ſhort Time after the Church falls void, or if a Ca-
veat hath been entred, whether it be entred before or after the Church
is void, although it be faid, that the Biſhop need not regard a Caveat
entred before the Avoidance of the Church. Mich. 15 7ac. B. R.
Rone's Cafe. Popham 133. and by Mountague. Hill. 15 Jac. B. R.
Hutching v. Glover. 2 Croke 463, and Roll's 1 Rep. 191, 227. For
Bifhop a
a Bifhop in theſe Matters is a Judge, and not only fo, but alſo the
Judge. great Paſtor of his Diocefe, and ought fo to bear himſelf, as to mani-
feſt that he hath a due Reſpect as well to Equity as Juſtice, and there-
fore to do what he lawfully may, that no Perfon by his Hafte be ſo
furprized, but may have Time and Opportunity to fet up his Intereſt
without Diſadvantage thereto. Parſon's Counſellor 16. But it is not
adviſeable that the Biſhop doth refuſe to admit and inſtitute a Clerk.
only, becauſe a Caveat was entred before the Church was void, but
Yet adviſable that he do only fuſpend the Admiſſion of him to 'enquire about the
the Admit: Clerk's Converſation, or the like ; otherwiſe (ſuppoſing the Caveat,
becauſe entred too foon, not to be void) the Bishop may be found to
be
Caution a-
.
Caveat.
lion.
Chap. XX. The Complete Incumbent.
229
trer.
may be ne-
Caveat,
be a Diſturber for that Cauſe in a Quare Impedit, and by this Means, Caveat ent-
the fame Perſon, or other that hath Intereſt, may enter a new Caveat
after the Church is void, or preſent, and then the Biſhop will not be
found a Diſturber, if fued in a Quare Impedit, according to Coke and
Dodderidge. Paſch. 13 Jac. B. R. in Hitching and Glover's Cafe.
Rolls i Rep. 191, 227.
But if a Perſon doth, before his Church is void, ſuſpect that the Caveat to
Title to his Advowſon will be drawn into Queſtion by any Pretender enter before
thereto, it is beſt for his Security, that he enter a Caveat with the Bi-
ſhop before the Church doth void, left he ſhould not have Notice of cclfary.
an Avoidance ſo ſoon as it happens, which Caycat (although void as
is ſaid before, becauſe made too ſoon) may ſerve his Turn, with a
prudent and careful Ordinary, until ſuch Time as he may upon No-
tice enter another, which he had beſt do with Speed; for then the Bi-
ſhop may ſtop any Proceedings to inſtitute another Clerk, and ſhall
not be found to be a Diſturber in a Quare Impedit, by Coke and Dod-
deridge, in Hitching and Glover's Cafe. Roll's i Rep. 191. For a Ca- Advantage
veat being regularly entred, if another doth preſent, and the Biſhop of a regular
doth inſtitute his Clerk before he that entred the Caveat is called
and acquainted therewith, by the Canon Law the Inſtitution is void,
and this ſeems to be granted at the Common Law, Mich. 15 Fac.
B. R. Rone's Cafe, Popham 133, and by Mountague, Mich. 15 Jac.
Hutchins v. Glover, 2 Croke 463, where it is concluded, that a Ca-
veat is void if entred before the Church is void, and upon that Reaſon
only, which implies that if it had been ſeaſonably entred, it ſhould
have had its Effects by the Common Law : And by Dr. Amias, if a
Church becomes void, and a Stranger doth enter a Caveat with the
Regiſter of the Biſhop, that none be inſtituted to the Church until he
be made privy thereto, and the Biſhop before he hath Notice of the
Caveat inſtitutes an Incumbent, the Inſtitution is meerly void in the
Spiritual Law, for the Regiſter ought to notify the Caveat to the Bi-
ſhop, and his Negligence in that Cafe ſhall not prejudice him that en-
tred it; and if the Biſhop hrath Notice of the Caveat, and gives Day
to him that puts it in, and before the Day doth inſtitute an Incumbent,
this is meerly void, for the Entring of the Caveat is as a Superfedeas Entring of
at the Spiritual Law. Hill. 43 Eliz. Lord Zouch's Cafe. Gouldsbo- a Caveat is as
rough 146. And Dr. Tallbot ſaid, 'That a Ceveat is of Force for three
a Superfedens.
Months only, and that any one may ſafely preſent after the End there- 3 Months.
of, as if no Caveat had been entred, in Hutching and Glover's Cafe.
Hill. 15 7ac. 2 Croke 464. But notwithſtanding this, it hath been
adjudged, that if after a Caveat is entred, &c. a Clerk is preſented,
inſtituted and inducted ; although this is not good by the Canon Law,
yet the Church is full at the Common Law, for the Breach of the
Caveat is but a Breach of the Canon, and doth not make the Inſtitu- Yer Nota,that
tion void, and a Prohibition was granted to ſtay a Suit in the Arches a Breach of
after the Induction, to avoid the Inſtitution upon this Cauſe. Mich. doth not
15 Car. Phipps and Hayter's Cafe. per Curiam. Roll's Abridg: P. 2. make the
P: 361. and Pafch. 13 Jac. B. R. in Hitching and Glover's Cafe. Inſtitution
Roll's Rep. 191, and 227. per Curiani, in Oftley and Beſt's Cafc. Trin.
20 Car. 2. B. R. there it was faid, That a Caveat doth not preſerve
Jus illeſum, as to make a Nullity of all ſubſequent Procecdings, but
Fus illefum.
is only a Caution for the Information of the Court, and is like a
Caveat entred in the Chancery, that a Patent ſhall not paſs, or as a
Caveat in the Fine Office in the Cominon Pleas, that ſuch a Fine
ſhall
1
In Force for
void,
3
230
The Clergy-Man's Law: Or, Chap. XXI.
2Rcfuat
Hemedy on ſhall not be lcvicd ; yet a Patent or Fine paſſing contrary to ſuch Ca-
veats, are not therefore void. Fieri non debet ſed factum valet. 1 Sid.
Quere. 293, 372. 2 Keble 392, Gc. 1 Levinz 186, 187. Quære, Whether
the Ordinary that inſtituted another’s Clerk (after the Caveat
entred)
without the Privity of him that entred it, may not be puniſhed at the
Common Law as a Diſturber, if he that entred the Caveat be found
there to have the better Title? And if not, Whether he may not be
puniſhed in the Spiritual Court for his Breach of the Canon? Para
ſon's Counſellor 16.
CH A P. XXI. .
What Remedy for a Clerk preſented, if the
Biſhop refuſe to admit him, &c. Of Du-
plex Querela, & Jure Patronatus.
T
The Remedy porn HESE Things being thus premiſed, I come to the Queſtion,
when hin-
What Courſe a Clerk may take, or what Remedies he may
dred, Soc.
make uſe of, if he be ſtopped in taking a Title to an Eccleſiaſtical
Benefice ? And firſt if he be refuſed by the Biſhop.
By the Or-
When the Biſhop doth without good Caufe refufe, or unduly de-
dinary
lay to admit and inſtitute a Clerk to the Church to which he is pre-
fented, the Clerk may have his Remedy againſt the Biſhop in the Ec-
cleſiaſtical Court, as the Patron may in the Temporal Court.
A Duplex
Firſt, The Clerk may have his Remedy in the Eccleſiaſtical Court,
Querela in
and that before the Ordinary to whom Appeals are to be made, viz.
the
ftical Court" by the way of a Duplex Querela, that is
, if a Biſhop doth refuſe,
then before the Archbiſhop in his Court of Appeals, and if an Arch-
biſhop doth refuſe before the Delegates, and if the Biſhop doth admit
the Clerk, and then doth refuſe to inſtitute him, the Clerk may have
the fame Remedy againſt the Ordinary, to enforce him to do his Du-
What it is. ty, Hutton's Cafe, Hobart 15, that is, the Clerk preſented having ex-
hibited his Preſentation to the Biſhop or his Vicar General, (he having
Power to inſtitute) and being refuſed, or unjuſtly delayed, complain-
ing to the Judge of Appeals thereof, the Judge is wont to write to
the Biſhop in Form of Law, and this Writing they call a Duplex
Querela.
This Duplex Querela is to contain a Monition to the Biſhop or his
Vicar-General, having Power to give Inſtitution, that within a certain
Time, (viz.) Nine or Fifteen Days, he admit the Party complaining ;
and alſo a Citation, whereby the Biſhop may be cited to appear
himſelf or Proctor at a Day after, in Caſe he doth not inſtitute, Ga.
to ſhew Cauſe why, by Reaſon of his Neglect of doing Juſtice, the
Right of Inſtitution is not devolved to the ſuperior Judge. It is alſo
And an In- expedient, that the ſame Duplex Querela doth contain an Inhibition
to the Biſhop and his Vicar (if he hath the Power of Inſtituting), that
nothing may be done by either of them, pendente lite, to the Preju-
dice of the Party complaining. The Clerk refuſed, having obtained
from
The Con-
tchts, with a
Citation,
hibition.
3
Chap. XXI. The Complete Incumbent . 231
Duerela,
fal to cite
from the proper Judge a Duplex Querela, is to take Care that ſome Bp Duplex
Perſon ſufficiently learned for that Purpoſe, doth admoniſh the Biſhop
to admit him, and do him Juſtice, within the Time mentioned in the Biſhop. to be
Duplex Querela, and alſo according to the Contents thereof to inhi- admoniſhed.
bit the Biſhop: If the Biſhop, after he is admoniſhed to inſtitute the Upon Refu-
Preſentee, ſhall exprefly refuſe to admit him, the Mandatory may him.
preſently cite the Biſhop to appear according to the Contents of the
Duplex Querela; but if no Refufal be made, the Biſhop being admo-
niſhed as aforeſaid, the Clerk is firſt to repair to the Biſhop or his Vi- If no Refu-
car (if he inſtitute) on the third Day after, if no more than nine fal.
Days are mentioned in the Duplex Querela, or on the fifth Day af-
ter, if fifteen Days be appointed therein, and to exhibit his Preſenta-
tion, and to require Admiſſion and Juſtice in all Reſpects to be done
him, and to offer himſelf ready to ſubſcribe the Thirty-Nine Articles
of Religion, and the Declaration as required by Law, and to take the
Oaths of Supremacy; and of Canonical Obedience, &c. and to do
every
other Thing required by Law to be of him performed, in re-
ſpect of his Admiſſion and Inſtitution unto thắt Benefice. And this he
is to do two Times more, if not received, viz. every Third, or every Repetition.
fifth Day, according to the Time given in the Duplex Querela. But
if he cannot come to the Preſence of the Biſhop, he is to proteſt his Proteſtation.
Readineſs to receive his Admifſion, dic. and to ſubſcribe, óc. as afore-
ſaid, and to have at leaſt two Witneſſes thereof. If the Biſhop ſhall
not do the Clerk Juſtice within the 'Time limited after the Expiration
thereof; the Party preſented is to take Care that the Biſhop be cited
according to the Tenor of the Duplex Querela. If the Perſon that Citation.
is to cite the Biſhop cannot come to his Preſence, he is to ſignify to
ſome of the Biſhop's Servants; that he hath a Duplex Querela at the
Inſtance of A. B. the Perſon preſented to the Church of of C. to be
by him executed, and to deſire that he may come to the Preſence of
the Biſhop: If he may not come to the Biſhop's Preſence, ſo that he
cannot cite him, the Preſentee is to expect till the Day in which the
Biſhop ſhould appear, had he been cited, at which Time he is to be
called, and if he appear not by himſelf or Proctor, a Citation, Viis Citation, Viis
& Modis
, is to be decreed, which is to be executed perſonally, if the & Medis.
Biſhop may be ſpoken with; and if not, then by affixing it to the out-
ward Doors of the Biſhop's Palace, or of the Houſe where the Biſhop
reſides, or of his Cathedral Church. After the Biſhop is cited, whe-
ther by the firſt or by a ſecond Mandate, the Perſon citing is to certify
to the Clerk or his Proctor by his Letters, or by ſubſcribing upon the Certificate.
Backſide of the Mandate, the Day of executing the Monition, to in-
ſtitute, and the Inhibition, the ſeveral Days of the Preſentee's asking
Admiſſion, and the Day of his citing the Biſhop, and if the Biſhop re-
fuſed exprefly to admit, that alſo is to be certified. If the Biſhop
appear not at the Day, upon the Petition of the Preſentee's Proctor,
the Biſhop being thrice called, is by the Judge pronounced Contuma- Contumacy,
cious, and as a Puniſhment of his contumacy, the Judge doth pro- pronounced.
.
nounce the Right of inſtituting the Preſentee to his Benefice, to be de-
volved to the fuperior Judge, and doth decree that the Clerk ſhall be
inſtituted, and that he will write to the Archdeacon or Ordinary of
the Dioceſe where the Church is, commanding him to induct him.
Then the Clerk is remitted (if the Proceedings be in the Court of the
Arches or Audience) to the Archbiſhop to examine him, and the Arch-
biſhop approving of him, returns him with bis Fiat Inſtitutio to the
Judge,
232
The Clergy-Man's Law: Or, Chap. XXI
litfuial
Peiris, 1910
Caufes.
No Prohi-
bition.
.
Lemed on Judge, who before he inſtitutes; is wont to require a Bond of the Pre-
fentce to ſave him harmleſs upon that Account. But if the Biſhop
lint Injimmie. cloth appear, and doth alledge fome juſt Cauſe why he refuſed the
Clerk, then are they to proceed to the Trial of that, as in other ſum-
If Bishop ap- mary Caufes. If the Cauſe alledged by the Biſhop be not proved,
alledes the Judge pronounces as before for his own Jurifdi&ion, and the Bi-
ſhop is to be condemned in Expences; and ſo if he doth alledge an
inſufficient Caufe, as that the Church is litigious, for this he ought to
have tried. If the Reaſon of the Biſhop's Refuſal was for that the
Church was full before, or was become litigious, the other Clerk con-
cerned may appear when the Biſhop ſhould, and defend his Cauſe as
his own, and in his own Name, or having obtained the Biſhop's Man-
date, he may employ a Proctor to manage his Defence in the Biſhop's
Name, and then the Judge ſhall not pronounce for his own Juriſdiction,
if the Church be not full, unleſs upon Cauſe after appearing. See for
this Matter, Clerks Praxis, Tit. Duplex Querela, &c. And this
Way of proceeding in this Cafe againſt à Biſhop is allowed of by the
Common Law, Hutton's Cafe. Hobart 15, and no Prohibition lies for
the Biſhop, in Stoke's Cafe v. Sykes. Hill. 2 Car. Latch 192.
Though the Clerk be relievable in the Spiritual Court as is afore-
Patron's Re- faid, in cafe that he be not admitted, &c. yet the Patron hath no
medy.
Remedy there for any Diſturbance; and therefore if the Church being
litigious by reaſon that two have preſented to the inferior Ordinary,
and one Patron doth libel in the Court of Audience, affirming the Ti-
tle to preſent to be in him, this Libel being of the Nature of a Decla-
ration, upon a Quare Impedit at Common Law for the Right of
pre-
fenting, and ſo for a Thing triable at Common Law, a Prohibition
lies. Paſch. 13 7ac. B. R. Baile and Sir Henry Wallop's Cafe. Roll's
i Rep: 173;
If Biſhop ſues
And if the Biſhop be ſued by a Duplex Querela for refuſing one
for Prohibi- Clerk, and after doth inſtitute the Clerk of another Patron, and then
doth fue for a Prohibition againſt the Clerk that fues him in the Spiri-
tual Court to ſtop his Proceeding there, tho'a Prohibition be granted,
yet a Conſultation may be had, the Libel containing nothing but the
Contumacy of the Biſhop, in admitting pendente lite, eſpecially after
he was inhibited; for he is to be puniſhed by the Spiritual Judge, al-
though the Biſhop to have a Prohibition doth ſuggeſt to the Court, that
there is no ſuch Church in his Dioceſe to which the firſt Clerk was
preſented. Trin. 31 Eliz. B. R. Slug v. the Biſhop of Landaffe.
i Leonard 181. Trin. 15 Jac. Middleton v. Lawte. Moor 879.
If two Clerks So if two Clerks be preſented by one Patron, and the one doth fue
be preſented the other by á Duplex Querela, a Prohibition doth not lie before Inſti-
tution, by Dodderidge ; but Fones denied it, and ſaid, that it had been
reſolved to the contrary; to which Dodderidge ſaid, that then the
Induction was pendente lite. Hillo 2 Car. Stoke v. Sykes. Latch. p.
If Bishop fu If a Biſhop refuſing a Preſentee, be ſued thereupon before his Me-
ed before his tropolitan, whereupon the Metropolitan doth ſend to ſuch Biſhop a
Metropoli-
Monition to receive the Clerk within a certain 'Time, or elſe to appear
before him to anſwer as aforeſaid, and the Biſhop doing neither, the
Archbiſhop doth receive the Clerk and inſtitute him, and by his War-
rant cauſe him to be inducted, and after the Biſhop and the Preſentee
of another Patron do fue in like Manner before the Delegates to void
heforc the
Delegates.
the Inſtitution made by the Archbiſhop as null, and by Conſequence
tion.
tron.
ز
192.
tan, egoc.
Afrcr fues
I
the
Chap. XXI. The Complete Incumbent.
233
11: fuit.
n
1
hibition
the Induction is void alſo, ſuch Suit may be ſtopped by a Prohibition ; by Quare
for if by Induction, which is a 'Temporal Act, and triable. by Tem-
poral Law, the Church is abſolutely full, it may not be avoided but
by a Suit upon a Quare Impedit, or the like, at the Common Law,
and
may
not be undermined by alledging Inſufficiency in the Inſtitu-
tion in the Court Chriſtian. Hutton's Cafe. Hobart 15. Mich. 12 Jac.
Rozt): v. the Biſhop of Cheſter. Moor 861. Trin. 15 Jac. Middleton
v. Lawte. Moor 879. Trin. 15 Fac. Wilſon's Cafe. Hill. 15 Jac.
B. R. Hitching v. Glover. Roll's Abr. 2. 283. By which it appears,
that after another Clerk is inducted, this Way of proceeding by a Du-
plex Qzierela in the Spiritual Court is not to be uſed, though the Duplex Que-
Church be filled by the Biſhop pendent the Duplex Querela. And it relater where
is generally faid, that after a Clerk hath got Induction he is not to be
queſtioned, neither as to the Validity of his Inſtitution, nor of his In-
duction. Trin. 9 Jac. B. R. Holt's Cafe. 1 Bulſtrode 179. And ac-
cordingly, if a Man be admitted, inſtituted and inducted to a Church,
and after be deprived, for that he was inſtituted againſt the Courſe of
the Canon Law; this is a void Sentence of Deprivation, for that it
is now a Lay-Fee by Induction. Hill. 15. Jac. B. R. Hitching y. Glo- Lay-Fee by
ver. Roll's Abr. 2. p. 282. And it is alſo held, that Inſtitution can- Indu&tion.
not be voided by Sentence in the Spiritual Court, for which Linwood
is vouched; and if ſo, this Remedy by Duplex Querela muſt fail, if
a former Clerk be inſtituted, although unjuſtly. Mich. 15 Jac. B. R.
Rone's Cafe. Popham 133. But in Offey and Beſt's Cafe. Trin. 18
Car. 2. B. R. I Siderfin. 293; it is agreed, That if after Induction After Indu-
the Spiritual Court goes about to repeal the Inſtitution, a Prohibition &tion a Pro-
ſhall be granted; but if the Repeal be before Induction, there no Pro-
hibition Thall go; and where it is faid, that the Spiritual Court can-
not proceed againſt an Incumbent after that he is inducted into the
Church, that is not to be intended generally fo underſtood, for without
Doubt, the Spiritual Court, after the Clerk is inducted, may proceed Deprivation
againſt him, and deprive him upon the Account of Crimes he may be after Indu-
guilty of, or any Incapacities he lies under, as they may deprive any
Incunbent upon the Account of Simony, as hath been before obferv’d,
or if he entred into Deacons Orders before Twenty-Three Years of
Age, and into Prieſts : Orders before 'Twenty-Four, as was Roberts and
Pain's Cafe. i Fac. 2. B. R. 3 Modern Rep. 67, and no Prohibi-
tion in ſuch Caſes ſhall be granted : So if he be a Drunkard, or other-
wiſe of an ill Life and Converſation, as was ſaid by the Court in
that Caſc.
If a Clerk be unjuſtly refuſed, or delayed by the Biſhop, though Proceedings
he may have the aforeſaid Remedy, yet his Patron may alſo bring his both by the
Writ of Quare Impedit, or Darrein Preſentment, as his Cafe ſhall Patron.
require, and thereby enforce the Admiſion and Inſtitution of his
Clerk; but though the Patron ſhould ſo proceed againſt the Ordinary
for diſturbing him to preſent, yet the Clerk may alſo proceed by a
Duplex Querela againſt him in the Eccleſiaſtical Court, as ſeems to
be implied by Hutton's Caſe. Hobart 15. And if by Mcans of ſuch
Proceeding, he doth get himſelf to be inſtituted and inducted, yet
this is no Abatement of his Patron's Writ; but if the Patron be put
afterwards to fue for a Prohibition to ſtop a Suit in the Delegates,
brought by any Perſon to avoid his Clerk's Inſtitution and Induction,
had upon his Suit in the Eccleſiaſtical Court from the Metropolitan,
the Patron muſt make bis Surmiſe, That the Church being full of a surmiſe by
Tt
his the Patron.
&tion.
234
The Clergy-Man's Law: Or, Chap. XXI,
clefiaftical
Court, beft
Hemedp on his Preſentation, they attempt to avoid it in the Spiritual Court, upon
Refurai.
a Pretence that the Inſtitution is null, and by Confequcnce the In-
duction alſo, without making any Mention of the Quare Impedit ;
otherwiſe, that bis Quare Impedit will abate by his own fhcwing.
In the Ec Hutton's Cafe. Hobart 15. Quare. But whatever the Patron pleaſeth
to do, the aforeſaid Courſe of Proceeding in the Eccleſiaſtical Court
for the Clerk. is the moſt proper Remedy that the Clerk can uſe, in caſe he be re-
fuſed by the Biſhop upon the Account of any perſonal Fault or De-
fect ; and not only becauſe by ſuch Courſe the Clerk in a short
'Time, at Iefs Charge, and Hazard of loſing of his Living by Errors,
(which are eaſily fallen into at Common Law) may gain Inſtitution,
but alſo becauſe, although his Patron bring his Action at Common
Law, for refuſing his Clerk for Crime or Infuificiency, ſuch Cauſe of
Refúſal ſhall be tried by a Spiritual Judge; that is, if a Bishop re-
fufe by the Metropolitan of the Province, as was granted by Shuttle-
worth Scrjeant. Mich. 30 Eliz. C. B. in Specot's Cafe. 3. Leonard
If Refuſalbe 199, fame Cafe in Gouldsborough 35. If the Archbiſhop of York re-
by Archbi- fuſe, the Cauſe of Refuſal ſhall be tried by himſelf only; by Dyer ;
Thop of Lark.
but Manwood Juſtice faid, that it fhould be tried by the Archbiſhop
of Canterbury : But that I doubt, and the Eccleſiaſtical Judge is to
make Certificate of his Judgment to the Temporal Court ; upon
which they may proceed to Sentence. But if the Party in whom
Diſability is alledged be dead before his fecond Examination, ſo as
Trial by the he cannot be examined, the Trial of his Ability or Diſability ſhall
Gountry.
be by the Country, for which was cited 39 Ed. 3. Mich. 15 Eliz.
C. B. Leonard 3. part 199. 40 Ed. 3. 25. 4 Ed. 3. 26, and by
Dyer. Mich. 15 and 16 Eliz. C. B. Dyer 327. Mich. 8 Fac. Rá
bert's Cafe. 2 Croke 269. Watfon and Baker's Care. 20 Car. 2. i Si-
derfin 390. : So in a Quare Impedit againſt the Archbiſhop of Can-
terbury, if the Ability of the Clerk come in Queſtion, it is ſaid by
Hardres Serjeant, that it ſhall be tried by the Country, and not by
any inferior Ordinary. Trin. 1656. Hardres 65, and the fame Reaſon
ſeems to be as to the Archbiſhop of York.
This Remedy alfo is proper for the Clerk, in caſe the Bithop doth
not fulí, how refuſe him upon Pretence that the Church is full; for that full or
not full, for the moſt Párt, ſhall be tried by the Certificate of the
Biſhop, being that Plenarțy is by Inſtitution, but yoid or not void,
being an Act notorious to the Country, and diſtinguiſhable by them,
ſhall be tried by the Country, Mich. 20 Car. 2. Watſon v. Baker.
1 Siderfin 390, but whether the Church be void by Deprivation or
Ceffion Thall not be tried by the Ordinary: 15 E. 4. 25. Roll's 2 Abr.
Tit. Tryal 5183. Yet in the Caſe of Watſon and Baker, as reported,
2 Keble 446, it's faid, that the Court was of Opinion that Voidance
by Rcfignation ſhould be tried by the Country.
Remedy by
If the Clerk be refuſed by the Bifhop, upon a Pretence only that
requiring a
the Church is become litigious, he may have his Remedy by the fame
Fure Patro- Bifhop that refufcd, by requiring the ſaid Biſhop to award a Jure
Patronatus, to enquire in whom the Right of preſenting is, and
where a "Jure 'Patronatus is awarded, the Ordinary ought in Juftioe
to admit him, in whom the Right is found by the Verdict, and cer-
tified to be by the Commiſſioners, although it be found and certi-
fied againſt the true Patron. 34 H, 6. 11. 34 11. 6. 38. And accord
ing to the Commiſſioners Certificate, in caſe they certify contrary to
What
If full, or
triable.
..
matuse
Chap. XXI. The Complete Incumbent.
235
what is found, 22 H. 6. 30, for the Ordinary is a Judge in this Caſe, By Jure
Patronatus.
and therefore ought to carry himſelf indifferently amongſt Pretenders ;
and having put the Patron to the Charge of an Enquiry, he ought
in Juſtice to follow the Verdict and Certificate, eſpecially becauſe the to follow
Law hath provided this Means to ſatisfy the Biſhop, and to ſecure the Verdia.
him from being puniſhed as a Diſturber, if he pleaſe to follow ſuch
Verdict as ſhall be given and certified to him. Paſch. 17 Jac. Sir Will.
Eldis v. the Archbiſhop of York, Taylor and Biſhop. Hobart 317.
And if the Biſhop in going againſt the Verdict chance to admit the
Clerk of the true Patron, yet this will not excuſe him from Diſtur-
bance in a Quare Impedit brought-againſt him by the Perſon for
whom the Verdict was found, for it is no Plea to ſay that he admit-
ted the true Patron's Clerk. However, the Biſhop is not compella- Biſhop not
ble to award a Jure Patronatus when the Church is litigious, nor compellable.
after he hath awarded it, to follow the Verdict given, but if he
pleaſe may inſtitute the Clerk of the Patron he takes to have the
better Title, either before a Jure Patronatus is awarded, Hitching
and Glover's Cafe, Roll's Rep. 227, or whilft it is depending, or af-
ter it is executed, although it be contrary to what is certified, and
the Biſhop having ſo admitted a Clerk to the Church, he is not to
be ſued in the Spiritual Court for that Cauſe; if he be, he may have
a Prohibition to ſtop fuch Suit. But if the Patron of the Clerk that
is rejected, doth bring his Quare Impedit againſt the Biſhop, Sc. and Quare Impedit
will maintain him to be a Diſturber, if either the Patron whoſe by the Pa-
tron againſt
Clerk he hath inſtituted will not plead and defend his Title, (for the Biſhop.
the Biſhop may not do it) or if he doth defend it, and the other be
found to have the better Title, the Biſhop will be puniſhed as a Di-
ſturber, whether his Cafe be, that after the Church became litigious,
he upon Requeſt refuſed to award a Jure Patronatus, and inſtituted
without it, or whilſt it was depending or having awarded it, he inſtituted
contrary to the Verdiet, or if ſuch Patron doth not name the Biſhop in
his Writ, but only the Patron and Incumbent, and proves his Title, by
the Opinion of Hobart, he may have an Action upon the Cafe againſt
the Ordinary for that wilful Wrong and Trouble he hath put him to, A&tion upon
and recover his Coſts and Damages, not in reſpect of the Value of the Cafe a-
gainſt him.
the Church, (for there is no Damage for that by the Common Law,
but by the Statute of Weſtm. 2.) but for the Injury and Wrong he
hath done him by ſuch Admiſſion ; but if he name the Ordinary in
his Quare Impedit, he can have no ſuch Action, and if he doth not
name him, yet he cannot have ſuch an Action upon the Cafe before
he hath tried his Title in a proper Action, and againſt the proper
Parties ; but if he happen to inſtitute the Clerk of him that upon
Tryal at Common Law is found to have the better Title, the other
is without all Remedy againſt the Biſhop, as much as if thc Biſhop
had awarded a Jure Patronatus, and followed the Verdict given
thereupon. Pafch. 26 Eliz. C. B. Gerrard's Caſe. 2. Leonard 168.
Pafch. 17 7ac. Sir William Elvis v. Archbiſhop of York. Taylor
and Biſhop. Hobart 318, and Lord Stanhop's Cafe. v. Biſhop of Lin-
coln, &c. "Hobart 242. See Chap. 20.
This Enqueſt by a Jure Patronatus is by Law allowed, not only
for the Security of the Ordinary when a Church is litigious, ſo that The Effe &s
Diſturbance may not be imputed to him, if he duly proceed therein, Patronen
and act according to the Verdiet thereupon given, and as a Remedy by
which
Tt 2
236
The Clergy-Man's Law: Or, Chap. XXI.
relical
H. 6. 40.
When the
Publick
Edi&t.
līcihledy on which one of the Pretenders Clerks may have Admiſſion, and ſo the
Cure may not be long neglected ; but alſo to fatisfy the Ordinary when
the Church is not litigious, that is, when but one Perſon doth
pre-
fent, if the Biſhop doubts that he who preſents hath no good Title
to the Advowſon, or preſent Avoidance of the Church. Paſch. 17
Fac. Sir Willian Elvis v. Archbiſhop of York. Taylor and Biſhop,
Hobart 317. And indeed, the Biſhop if he pleaſe may enquire of the
Right of every perſon that preſents a Clerk to him, by awarding a
Jure Patronatus before he admits his Clerk. 21 H. 6. 44. And if in
fuch Cafe it be found that a Stranger hath a Right, if the Stranger
doth preſent in fix Months, the Ordinary is to admit his Clerk, but if
he let the fix Months paſs, the Ordinary is obliged to admit the Clerk
of the Diſturber, and fo is however barred of the Benefit of Lapfc. 34
When a fure Patronatus is awarded the Biſhop doth proceed either
by himſelf, or, and that more uſually, by a Commiſſion made under
Fure Patro his Seal to certain Perſons as beſt pleaſeth him : If by Commiſſion,
Commiſſion. then it is done after this Manner; The Biſhop doth appoint to fit in
the void Church on a certain Day, and doth decree a Monition againſt
the Patrons preſenting, and the Clerks, prefented, to be preſent there at
the Day appointed to ſee the Proceedings. Alſo the Biſhop is to de-
cree, and ſend forth a publick Edict againſt all having or pretending to
have any Intereſt or Right of preſenting to the vacant Church, to ap-
pear at the Day and Place appointed, to thew their Right, &c. And
this publick Edict is to be affixed to the Door of the void Church in
Time of Divine Service.' And againſt the Day of Appearance, certain
Articles are to be prepared, which are to contain the Particulars about
which the Jury are to enquire, viz. (1.) Whether the Church be void,
and how it became void 3 (2.) Who preſented at the laſt preceding
Avoidance, and to the two foregoing Avoidances? (3.) Whether the
Perſons prefenting, pretented in their own Right? (4.) In whom the
Inheritance of the Advowfon is, and who ought to preſent to the void
Turn? (5.) Whether any of the Clerks preſented be known, or fuf-
pected to be guilty of any Crime rendring him capable of Admiffion
to the ſaid Benefice, as Herefy, Simony? Co.
At the Day appointed for this Enquiry, the Perſon or Perfons exe-
Oat or Cer- cuting the aforefaid Mandates or Citations, are to make Oath of the
tificate of the due Execution thereof, or the Execution of them may be certified up-
on the back-ſide of the faid Mandates, which muit be done under
fome authentick Seal, viz. of the Archdeacon, Commiſſary, or Rural
Dean, againſt winich Day, the Biſhop is alſo to ſummon a Jury for
this purpoſe by way of Citation, which Jury is to confiſt of fix Clerks,
and fix Lay-men that live near to the void Church, and then the
Parties cited, and thoſe of the Jury are to be publickly.called, and if
any of the Jury appear not, being duly fummoned, they may be pu-
.niſhed, that is, the Clergy-men by Sequeſtration, the Lay-men by Ex-
commuaication, and fo compelled to appear; but left any fail, it is
beſt to ſummon more than the Number of Twelve, for that more,
if
What Num- the Judge think fit, may be ſworn of the Jury, provided that there be
an equal Number of the Lay and Clergy. And if others cited ap-
Equal Num- pear not, they are to be pronounced contumacious, and the Proceed-
ings are to go on however, in Panam Contumacic of them that do
not appear. If fix Clergy, and fix Lay-men appear to be of the Jury,
which
duc Execu.
tion of Ci-
tations.
ber.
ber.
2
Chap. XXI. The Complete Incumbent.
2437
tus.
which is the competent Number, they are to be ſworn faithfully to By Jure
Patronas
enquire of the Articles, and in ſwearing them, firſt a Clerk, then a
Lay-man is to be ſworn, till a Jury of Twelve be made up. The Ju-
ry being impanelled, the Articles to be enquired of are to be publickly
read, and delivered to them, and then the Parties or their Counſel arc
to ſet forth their Intereſts or Titles, and produce their Evidences to
prove them. When the Parties and their Counſel have been fully
heard, the Jury may give their Verdiet at any Time the fame Day, or Verdiết gi-
if the Cauſe be doubtful, the Judge may aſſign them a longer Time ven.
for to conſider of the Matter, and aſſign alſo a Place where they Mall
give their Verdict.
If the Verdict be, that one of the Preſenters is Patron, or hath
Right to preſent to the Avoidance, his Clerk ought to be admitted,
unleſs they find alſo, that the Clerk is guilty of fome Crime. But fup. If they site
no Verdiet,
poſe Jury will not give any Verdict, or that they be equally divided, &c.
half for one Patron, and half for the other, or give a ſpecial Verdict,
Qyære, what farther Courſe is to be taken, viz. Whether the Biſhop
may ſummon a new Jury, or ſuffer the Church to lapſe, as if no
Jure Patronatus had be awarded, which I rather think. Vide, Clark's
Praxis, cap. 98, 99, 100. Parfori's Couns. 19, 21. 34 H. 6. 41. 35
The Biſhop is not bound to make this Enquiry in Perſon, but may
as is uſual) ſubſtitute others, either of the Clergy or Laity, by his
Commiſſion under his Seal to act for him; but if his Commiſſioners
negled to execute their Commiſſions duly, it will not excuſe the Bi-
ſhop, for that they are of his own making : But the Civilians ſay, that
the Commiſſioners fall be named by the Parties, and they only ſhall
be prejudiced by the Commiſſioners Neglect. Parſon's Counſellor 22.
And Note, That the 7ure Patronatus ſhall be ſued at the Coſts of
the Party, or his Clerk, and not of the Bifhop. Br. Quare Impedit
12. 34 H. 6. 38. 5 H. 7. 22. d. contra. Bro. Golfs 2.
H. 6. 19.
Parties to
name Com
miflioners.
GH A P. XXII.
Of the Writs of Quare Impedit, Ne Ad-
mittas, Quare Incumbravit, and Alife
of Darrein Preſentment, for what and
for whom they are maintainable, and upon
what Seiſin, &c.
A
$ the Clerk may have his Remedy in the Ecclefiaftical Court, if Remedy for
the Biſhop doth unjuſtly refufe or delay to infitute him, &c. againt the
that is, until fuch Time as another Clerk is inducted, or at leaſt infi- Biſhop, Esco
ted, ſo as hath been ſaid, upon what Account foever the Patron is
difturbed in preſenting, he, generally {peaking, may have his Remedy at
the common Law against the Biſhop, and all other Diſturbers.
A Pa-
238
The Clergy-Man's Law: Or, Chap. XXII.
How the
Patron is
Remedy hy A Patron is ſaid to be diſturbed in preſenting, either when the Bi-
murre Fima
ſhop hath admitted and inſtituted a Clerk, upon the Preſentment of
pedit, Soc.
another pretended Patron, or when the Bihop will not admit the Pa-
tron's Clerk preſented to him upon any Pretence; but if the Ordinary.
diſturbed in hath filled the Church by a wrongful Collation, the Patron is not
preſenting. thereby diſturbed, and therefore in ſuch Cafe the Patron muſt actual-
ly preſent, and the Ordinary muſt refuſe to admit his Clerk before the
Patron can bring his Action ; for though the Ordinary hath collated,
yet the true Patron may preſent to the fame Ordinary, and he may in-
ſtitute, &c. his Clerk, and then the two Clerks in Treſpaſs, Eject-
ment or Affiſe, ſhall try who hath the better Title. Grendon's Cafe
,
Plowden 500. b. Neither is the true Patron diſturbed by a Stranger's
preſenting a Clerk to the Biſhop to be admitted to his Church, unleſs
the Biſhop hath admitted him accordingly; but the Biſhop's refuſing
to admit the Patron's Clerk when preſented, is the Diſturbance, and
therefore the Patron, before he can bring his Action for any
Diſturbance,
By refuſing muſt cauſe his Clerk to tender his Preſentment to the Biſhop, and re-
quire Admiſſion, and the Biſhop muſt refuſe his Clerk, or elſe, tho'
the Biſhop be named in the Writ, he may at the End of the ſix
Months collate for Lapſe. Jenkins Cent. I. Cafe 19. Pafch. 14 Jac.
Brickhead v. Archbiſhop of York, Brownlow and Gouldsborough, i
part 164. The ſame Cafe Hobart 200, that is, if his Church be not
Upon Pre-
Sentment of filled, or only filled by Collation ; but if it be filled upon a Preſent
A Stranger. ment made by a Stranger, the Patron is thereby diſturbed, and may
bring his Action without making any Preſentment to the Biſhop, (as I
conceive,) becauſe his Preſentment to the Biſhop when the Church is
fo filled is vain ; and if the Biſhop ſhould admit and inſtitute the Clerk
upon ſuch Preſentment, all would be void.
his Clerk,
Remedy by The Patron being ſo diſturbed that he hath Cauſe of Action thereby,
13 E. 1, 6. 5. the next Thing is to conſider what Remedy the Law affords in ſuch
Caſe moſt
proper for him, and theſe Remedies muſt be either ſuch as
are given by ſome Act of Parliament, or elſe ſuch as are by the com-
mon Law. Firſt then it is provided, Where an Agreement is
miade between many claiming one advowſon, and intolled before the
Upon an A. Jutices in the Roll, or by fine, in this fom; Chat one fhall pze.
greement in- ſent the firft Time, and at the nert avoidance another, and the third
Filed, or by Time another, and ſo of many, in caſe there be many; and when one
hath preſented, and þad his preſentation which he ought to have ac-
cording to the form of their agreement and fine, and at the nert a:
voidance he to whom the ſecond Preſentation belongeth is diſturbed by
anp that was Pariy to the ſaid fine, 02 by Come other in his tead.
It is provided, That from hencefo2th they that be. Co diſturbed thall
have no need to ſue a Quare Impedit, but thall relozt to the Boli oz
fine.
And if the Cato Concord od agreement be found in the Roll 0: Fine,
give Notice, then the Sheriff thall be commanded that he give knowledge unto the
Diſturber that he be ready at Come ſhokt Day, containing the Space
of Fifteen Days of Three Weeks (as the place happeneth to be near
od far) for to thew if he can alledge any Thing wherefore the Party
that is difturbed ought not to pelent; and if he come not, 0? Perad
venture doth come, and can alledge nothing to bar the party of bis
Preſentation, by Reaſon of any Deed made of whitten, lince the Fine
was
Sheriff to
Eric
2
Chap. XXII. The Complete Incumbent.
239
Soc.
gr
Dat
ز
was made oz inrolled, be ſhall recover bis Preſentation with his Da. Quare Fin?
cumbjavit,
mages. 13 E. 1. cap. 5.
This Clauſe of the Statute extendeth as well to Strangers of Blood, The Extent
as to Coparceners who are Privies in Blood, and if one of the Parties, Cauſe
.
or his Heirs, or a Stranger uſurp in the Turn of another, the Party
wronged is not driven to his Quare Impedit, for it may be, that the
Quare Impedit, or Affiſe of Darrein Preſentment may fail
, and yet he
Inay
have Remedy by this Branch of this Statute, for albeit there be a
Plenarty of fix Months, yet the Party may have a Scire Facias upon Scire Facias.
the Roll or Fine, and therein recover the Preſentation and Damages.
2 Inftitutes 362.
In other Caſes when the Patron is diſturbed in preſenting, though
there lies no Action of the Cafe againſt the Biſhop for not inſtituting,
as is ſaid. Mich. 12 Jac. B. R. in Powle and Godfrey's Cafe. Roll's
1 Rep. 64. Yet ordinarily he hath his Remedy by the Writ of Juare Quare Impe-
Impedit, or of Darrein Preſent ment as his Cafe ſhall be, yea, though
rein Peelcas
the Patron be but an Infant, for of Advowfon of Churches, there be but mçnt.
three original Writs, that is to ſay, one Writ of Right, and two of
Poffeffion, viz. thefo of Quare Impedit, and Darrein Preſentment.
Stat. 13 Ed. 1. cap. 4. And having already ſpoken of the Writ of
Right in Chap. 13, theſe two Writs of Pofleffion, which indeed chicfly
relate to this Matter, are here to be treated of.
But Note firſt, that there are other Writs that are of Uſe to the Per-
ſon that is to recover a Preſentment, as Ne Admittas, Quare Incuin-
bravit, and Quare non Admiſt; tho Writ of Ne Admittas lies for a Ne Admittas
Patron of a Church after a Quare Impedit by him brought and depend- lics.after a
Quare Impe-
ing, viz. returned 2 E. 4. 11. That is, if he doubt that the Biſhop will dit.
collate, or admit the Clerk of another Perſon, Pendente lite : The Writ
is to be directed to the Biſhop to prohibit him. Terms of Law, Quare
Impedit, Mich. 6 Jac. in Langdale's Cafe. 1 2 Coke 59, 60. Fitz.
Nat. Br. 37. Lit. F. But this Writ muſt be fued out within the fix
Months, and not after, unleſs it be in the Caſe of the King. Regift.
Orig. 31. d, and a Writ may be directed to the Chief-Juſtice of the
Common-Pleas
, to certify whether there be any Plea depending in that
Court concerning that Church. Regiſt
. Orig. 31. b. And if the Bi-
ſhop doth admit the Clerk of any other Perfon pending the Suit, and
he that brings the Ne Admittas doth recover, he ſhall have a Quare Quare Incum-
Imcumbravit, and thereby remove him who came in Pendente lite, by bravit when.
whatſoever Title he came in, and ſhall force him that hath Right to
recover by Quare Impedit. Mick. 3 Jac. B.R. Lancaſter v. Lowe,
2 Croke 93. But if the Ne Admittas be fued out before any Writ of
Quare Impedit pending, if a Quare Impedit be after brought, and made
returnable before any Certificate had from the Chief Juſtice of the
Common-Pleas, whether there be ſuch a Suit pending or not, I ſupé
poſe it may be well enough. If two be in Suit for an Advowfon, and
the Biſhop doth admit the Clerk of one of them within the fix Months,
and the other recovers
, he may have the Writ of Quare Incumbravit
againſt the Bilbop, but one ſhall not have this Writ of Quare Incumbra-
vit without making niention in the Writ of fome Recovery by him
had. Regift. Orig. 32. b. Fitz. Nat. B. R. 42. k. And this Writ lies Not till after
not but after a Ne Admittas fued out. Fitz. Nat. Br. 42. b.
When a Quare Incumbravit is brought againſt the Biſhop, if it be Upon Ver-
found by the Verdict that the Bifhop hath incunbred the Church af- dith that the
Bhhop
a Ne Admite
tas.
t
ter incumbred.
4
240
The Clergy-Man's Law: Or, Chap. XXII.
3.
Nonfuit.
Second Writ.
what.
Quare ter the Prohibition of Ne Admittas delivered to him, and within the
Impedit,
fix Months after the Avoidance, to the Damage of the plaintift, the
Spr. fo2
what. Damages taxed by the Enqueſt are to be awarded to the Plaintift
, and
a Writ for him is to be directed to the Biſhop to diſincumber the
Church; but the Temporalities of the Biſhoprick are not to be feiſed
in this Cafe, for the Contempt, as they may be in an Attachment up-
on a Prohibition ; and if the Biſhop, endeavour to prevent the taking
of the Enqueſt, by alledging that he hath received the Clerk of the
Plaintiff, and hath inſtituted him, this will not be allowed. 21 Ed.
3. Br. Quare Incumbravit. But it is a good Plea for the Biſhop, that
he did not incumber the Church after a Prohibition delivered to him.
If the Plaintiff be Nonfuit in a Writ of Quare Incumbravit, he may
have another Writ of Quare Incumbravit, and may vary from his firſt
Declaration. No. Na. Br. 48. 21 Ed. 3. 42. And note, that this
Writ is to be brought in the County where the Church is. 38 H. 6.
15 Fitz. Nat. Br. 48. d.
Quare Impe-
And now to conſider in what Caſes the Patron may be relieved
dit, &c. in by the Writs of Quare Iinpedit or Darrein: Preſent inent: Firſt, a Pa-
what Caſes,
Esc. for
tron may have a Quare Impedit for a Chapel, Prebend, Vicarage,
Hoſpital. 18 Ed. 3. 1. Regift. Orig. 31. a, or other Houfe that is of
the Advowſon of other Men, by Stat. 13 Ed. 1. cap. 3. So a Quare
Impedit doth lio of a Donative, and the Writ ſhall be quod permittat
ipſum præſentare ad Ecclefiam, and the Patron is to ſet forth the ſpe-
cial Matter in his Declaration, Coke Littleton 344, ſo it doth lie of a
Free-Chapel, which a Man hath by the Patent of the King, if the
Sheriff will not put him into Poſſeſſion, 14. H.4. 11. b, ſo it doth lie
for a Deanery by the King, altho' that it be Elective, 17 Ed. 3. 40,
and for an Archdeaconery, for it is not a meer Function, but is Lo-
cal, in that an Archdeacon hath Locum in Choro : Alſo for a Pre-
bend, by the Equity of the Statute of 13 E. 1. cap. 5. Trin. 31 El.
C. B. Smallwood, &c. v. the Biſhop of Litchfield, &c. i Leonard 205,
and Trin. 31 El. 3 Croke 141. .24 Ed. 3. 42. Pafch. 31 El. C. B. Sale
v. the Bishop of Litchfield, Owen 99. But it doth not lie of a Chan-
cellorſhip or Commiffaryſhip, becauſe they are but meer Offices, tho'
they be granted for the Life of the Patentee, and are not local, ſuch
Officers having no Place in the Cathedral.
And what is ſaid of the Quare Impedit; I fuppoſe is true, alſo of the
fentment.
Writ of Darrein Preſentment; only I find that the Writ of Darrein
Preſentment is ſaid not to lie of Prebends, or Churches prebendated,
altho' that the Writ of Right of Advowſon, and Quare Impedit doth
lie thereof. Fitz. Na. Br. 32, d. 19 H. 3. Fitz. Darrein Preſent-
ment 23. And the Reaſon given is, That an Affize of Darrein 'Pre-
ſentment doth require the Jurors to view the Church by the Words
of the Writ; and therefore out of Reverence to Cathedral Churches
where Prebends are, theſe Writs lie not thereof. Jenkins, Cent. I.
Cafe 1.---
See 2 Inft. 363.
Tho' theſe Writs do lie even indifferently for the Preſentments afore-
ſaid, yet they do not lie indifferently for all Perſons. Where a Man
Sentment and may have an Affize of Darrein Preſentment, he
may
have a Quare
Quare In- Impedit, but not contrary-wiſe; an Aſſize of Darrein Preſentinent
pedit.
lies where a Perſon or his Anceſtors hath preſented formerly to a
Church, in preſenting to which, being void, he is diſturbed; but a
Quare Impedit lies upon Diſturbance for a Perſon that had never be-
fore preſented. See Terius
. of Law, Quare Impedit.
4
Though
:
Darreir. Pre-
Difference
between
Darrein Pre-
+
Chap. XXII. The Completė Incumbent:
24
Wrio may
Tenana in
.
Though it be ſaid, that an Affize of Darrein Preſentincnt doth lie Dürrein
where a Perſon or his Anceſtors hath preſented formerly, yct if 7. S. mint €62
doth preſent in my Name, and with my Aſſent, and afterwards the hon.
Church becomes void, this is a ſufficient Preſentment for me to lave
an Aff:za of Darrein Preſentment againſt 7. S. for that this was as have Darreiro
my Preſentment. Trin. 5 Ed. 1. Rot. 25. He that is Tenant in Fec of Preſentment.
an Advowſon may have this Writ. Roll's Abr. Part. 2. p. 382. Fees
And ſo may 'Tenant in Tail of an Advowſon, and is not driveu of Ne- Tenant in
ceſſity to his Quare Impedit, 46 Aſſize 4. And not only he who hath Tail.
the Freehold, but alſo he who is a Leſſee for Years only, having Leffee for
preſented before, may bring this Writ. Fitz. N. 31. 7. 5 H. 7. 16. lears.
. Farfax contra. Kellway 118. 1. 50 Ed. 3. 14. by Holt. And ſo may
Tenants at Will, who hath preſented. Roll's Abr. Part. 2: P: 380, Tenant ät
381. Contra, 50 Ed. 3. 14. This Writ, as hath been ſaid, is not only
inaintainable upon a Preſentment made by him that brings it, but alſo
upon a Preſentinent made by any of his Anceſtors ; and therefore an Heir
that comes in by Defcent, his Anceſtor having preſented, may main- Heir.
tain this Writ, Britton, fol. 242. b, and the Preſentment of the Grand-
father is ſufficient for the Grandſon to have it, who had never preſenta Grandfon.
ed, if it be the laſt Preſentment. Trin. 5 Ed. 1. Rot. 25. And al-
tho' the Church became void by Reſignation, Deprivation, &c. yet
thc Writ ſhall be to enquire, Quis Advocatus, &c. Præſentavit ulti-
man perſonam quæ mortua eft, &c. 6 E. 3. 41. b. But this Writ doth
not lie amongſt Coparceners when one doth uſurp in the Turn of the Not amongſt
Coparceners.
other, by reaſon of the Privity that is between them, and by the Words
of the Writ it is againſt him that advocationem deforceat, 20 Ed. 3.
15 Ed. 3. Fitz. Darrein Preſentment; but in ſuch Cafe a Quare Impe-
dit lies, Jenkins Cent. 1. Caſe 1. And Note; That when 'tis faid,
that to the Maintaining of this Writ, he that brings it, or his Anceſtor,
muſt have preſented, it is to be underſtood, that the Clerk prefented Preſentation
be alſo inſtituted, and Inſtitution without Induction is ſufficient. 38 H.
6. 16. b.
To the maintaining of this Writ of Darrein Preſentment it is fur- Hc muft
ther required, That he who brings it have the ſame Eſtate, or Parcel fame Eſtate,
of the fame Eſtate, by which the former Preſentment was made. &c.
Roll's Abr. Part. 2. p. 38. Therefore if a Man, being 'Tenant for a-
nother's Life of an Advowſon, doth preſent, and after his Eſtate is en-
larged for his own Life, and then the Church doth void again, he ſhall
not maintain an Aſſize of Darrein Preſentment upon the ſaid Preſent-
ment, becauſe this is not the ſame Eſtate, nor any Parcel of the Eftate;
upon
which the firſt Preſentment was made, but a new Eſtate. Kell-
and Inftitu-,
tioni
wey 118.6.
So if Leſſee for Years of an Advowſon doth preſent, and after his Not if E.
Eſtate is enlarged for Life or in Fee, and then the Church doth void, fate be cn-
larged:
he ſhall not have an Alfize of Darrein Preſent ment, becauſe he hath
a new Eſtate by the Enlargement. The fame Law is if Lellec at Will
doth preſent, and after his Eſtate is enlarged for Life, or for Years. If
Leſſee for Years of an Anvowfon doth preſent, and his Leafe being end-
ed, he takes a new Leaſe for Years of the fanie Advowſon, it ſeems
clearly that he ſhall not have this Writ, becauſe he hath another
Eſtate than that: upon which the Preſentment was made: Or, if Leſ-
fee for Years, or for another Life, doth preſent, and after doth , pur-
chaſe the Reverſion, and then the Years expire, or Ceſtuy que vie di-
eth, and after the Church doth void, he ſhall not have this Writ,
for
U u
242
The Clergy-Man's Law, Or: Chap. XXII.
pedit, Coc.
foz what and
Baron and
Feme.
1
Courteſy
Quare Fm. for that he is in of another Eſtatc; and ſo it ſhall be, although that
the Church doth void during the Years, or during the Life of the
whom. Ceftuy que vie, for the firſt Eſtate is extinct by his own Act, and there-
u fore he ſhall not have any Benefit of the firſt Eftate. Or, if the Gran-
tee of the next Avoidance doth preſent, and then purchaſeth the
Advowſon, he ſhall not have this Writ upon the next Avoidance, be-
cauſe this is mcerly a new Eſtate, and no Parcel of the firſt Eſtate
up-
on which the Prefentment was made.
If a Feme be Lefſce for Life of an Advowſon, the Remainder for
Life to the Husband, the Husband preſents, and then the Wife dieth,
the Husband ſhall not have this Writ at the next Voidance, becauſe
that the firſt Preſentment was in the Right of his Wife by reaſon of her
Eſtate, and now he is feiſed of another Eſtate in his own Right. So if
the Husband, being ſeifed of an Advowfon in the Right of his Wife,
doth preſent, and after hath Iſſue, and then, the Wife being dead,
the Church becomes void, the Husband ſhall not have this Writ, be-
cauſe that now he feiſed of another Eſtate than that upon which he
preſented before; for at the firſt he had not any Eſtate but only in the
Right of the Wife, and now he is feiſed of an Eſtate for his own Life.
Tenant by as Tenant by the Courteſy, dubitatur, Kellway 118. b. But if the
Husband hath preſented after he hath iſſue, and then the Wife doth
die, and the Church doth after become void, the Husband fhall have
this Writ, becauſe that he had an Inception of an Eſtate for Life by.
the Courteſy at the firſt Preſentment, which by the Death of the Wife
is become compleat.
If Leffce for Life of an Advowſon upon Condition to have the Fee
doth preſent, and after the Fee doth accrue when the Church doth
void, it ſeems that he ſhall have this Writ, becauſe that Parcel of
the old Eſtate doth continue, and it had a Poſſibility of accruing at
the Time of the firſt Preſentment.
Joint-Tc So if two Joint-Tenants for Years, Life, or in Fee, do, preſent, and
after one of them doth die, the Church after becoming void, the Sur-
vivor ſhall have this Writ, becauſe he hath the fame Eſtate that he had
upon
the firſt Preſentment. So if Tenant in Fee, or in Tail of an Ad-
vowſon, upon Condition to have it for Life, or for Years, doth preſent,
If Eſtate and after his Eftate doth decreaſe, he ſhall have this Writ when the
decreaſeth. Church doth void again, becauſe he hath Parcel of the old Eſtate
So if Tenant in Tail doth preſent, and afterwards become Tenant, af-
ter Poſſibility, at the next Avoidance he ſhall have this Writ, becauſe
this is a Remnant of the Eſtate Tail ; for all which laſt
: Caſes; fee
Roll's Abr. Part. 2. p. 381.
Quare Impe But ſeeing the Writ of Quare Impedit doth lie for all Perſons who
dit the ſafeſt may maintain an Aſſize of Darrein Preſentment, it ſeems:to be the
fafeſt Courſe to bring that Writ upon any Diſturbance : But altho' it.
be faid, That a Man may in many Caſes have either Writ, yet in no
Cafe can he maintain both; therefore if the plaintiff hath brought a
Quare Impedit upon a Diſturbance, and hanging the ſame, doth bring
an Aſlize of Darrein Preſentment againſt the fame Defendants, the
Defendants may in pleading thew this special Matter in certain, and.
aver that both. Writs are upon the ſame Avoidance, and the Writ of
Darrein Preſentment will be abated. Mich. 15. Jac., William An-
drews o. Archbishop of York; :Mary. Counteſs of Sirewsbury and Ha-
Abatenent ker; Hobart 184, and Hutton 3, and Moor 883. For if an Aflize of
of the Allize, Darrein Preſentment be brought, and after that a Quare Impedit for
Where Par-
cel of the
Eftare con-
tinucs.,
nants.
IN
Courſe.
I
tlie
Chap. XXII. The Complete Incumbent.
243
mlar
ton 4
have two
pre-
the ſanie Avoidance, the Aſſize ſhall abate, and the Quare Impedit Quare Fm.
ſhall ſtand, for the Quare Impedit is of a higher Nature than the oit, c. fox
Allize. 10 Ed. 3. Statham in Darrein Preſentiunet 3, vouched by
Juſtice Warburton in Hutt. 4. Regift. Orig. 30. (, and a Quare Impe-
dit is ſaid to be depending when it is returned. 2 Ed. 4. fol. 11.
And it is alſo ſaid, that if he againſt whom an Alize of Darrein
Preſentment is brought doth bring a Quare Impedit, the Darrein
Preſentment ſhall abate. Regiſt. fol. jo. See Štat. Weſtm. 2. c. 5.
which gives to him that is diſturbed the Election of one Writ or the
other, but not both Writs. Mich. 15 Fac. Andrews v. Hacker, Hut-
As a Patron that is diſturbed cannot have both a Quare Impedit May not
and and Aſſize of Darrein Preſentment for the fame Avoidance, fo
Quare Inipe
neither can he have two Quare Impedits : And altho' the Patron after dits.
the firſt Quare Impedit brought, the Church remaining void, doth
ſent a ſecond Clerk to the Biſhop, who is as the former refuſed,
and doth bring his ſecond Writ, and declare upon the latter Diſtur-
bance; yet the ſecond Writ ſhall abate, becauſe the principal Effect
of the Suit is to gain, and recover the Preſentation, and if the ſecond
Writ ſhould not abate, he ſhould have two Suits at once for the
fame Thing: Beſides, the Nature of a Quare Impedit is to be final up-
on Nonfuit or Diſcontinuance; but this way were to defeat the Law
in that Point, and the Adding a new Defendant in the latter Writ
to the Defendants in the former Writ will not amend the Cafe, for
ſtill there are two Suits depending againſt one Man for the ſame
Thing : But 'tis faid, that a Man may have as many Qụare- Impedits
as he will againſt ſeveral Perſons. Trin. 14 7ac. Edward Earl of Unleſs a-
Bedford v. William Biſhop of Exeter and Henry Wilſon, Hob. 137. mal Persons:
the ſame Cafe, Brownlow and Gouldsborough, i Part, 163.
Concerning the Writ of 2ụare Impedit, we muſt know, that altho? Quare Impe-
it be of more general Uſe than an Affize of Darrein Preſentment, for all per
yet it doth not lie for all Perſons, and in all Cafes ; for if, when a fons, &c.
Church is void, the Ordinary doth by Wrong collate, and after the
rightful Patron doth grant away the Advowſon in Fee, as by ſuch a
Grant the Grantee cannot have the void Turn, ſo neither can the
Grantor have any Action for it, he having deſtroyed, not transferred
over all his Right and Remedy to it by his Grant of the Advowſon.
Hill. 14 Eliz. Leake v. Biſhop of Coventry and Doctor Babington. 3
Croke 811. 6 Ed. 3. Br. Preſent. al
' Egliſe 62. From which it ſeems
to follow, that if one who is ſeiſed in Fee of an Advowſon doth
mortgage the ſame for a Sum of Money, and the Money being not Upon a
paid, the Grant becomes abſolute, and the Church doth then void : If Mortgage
.
during the Avoidance, the Money being paid, and the Advowſon re-
conveyed, the Mortgage doth get the Clerk inſtituted to the void
Church, the Mortgagee is without all Remedy, altho' the void Turn
was in him, and could not paſs by his Reconveyance of the Advow-
fon; or if the Biſhop doth in fuch"Caſe collate, or other Perſon doth
get the Church filled by Uſurpation, both Mortgagor and Mortgagée
are without all Remedy for that Turn, Quære. Yet it hath been
held, that if two Coparceners be of an Advowſon appendant to a Coparceners.
Manor, and the Church voiding, the one of them doth alien before
their Clerk is admitted, yet both of them ſhall have a Quare Impedit
for the void Turn, as being veſted in them. So if he that is feiſed of Diffeiſor.
Land, to which an Advowſon is appendant, be diſſeiſed, and the Diſſei-
Ice
U 2
fo2 what,
Bogo.
Muſt be be-
if the Court doth perceive that the
244 The Clergy-Man's Law: Or, Chap. XXII
Quare 3]m- fee doth levy a Fine to a Stranger of the Land to which, &c. the
pedit, cgc.
Diſſeiſor ſhall keep the Land, and by Conſequence the Advowfon for
cver; for the Diſſeiſſee againſt his own Fine cannot claim, and the Co-
nufce cannot enter the Right which the Diſfeifee had, being extinct
by the Fine, 2 Coke 56. See Terms of Law, Diſſciſſor; but 1 Croke
484, ſeems to be to the contrary.
Alſo it is to be noted, That when it is ſaid that the Patron may
fore an Uſur- have his Remedy as well when the Church is full as when it is void,
pation com- it is to be underſtood if the Patron doth uſe his Remedy before the
pleated.
Uſurpation be ſo compleated, as that the Uſurper's Clerk may plead
Plenarty by fix Months, for then that Turn is gone without Recove-
ry. Jenkins, Cent. 3. Caſe 7. But when an Uſurpation is ſo com-
pleated, and when thereupon the Patron is barred of all Remedy at
Law for the. Avoidance that ſhall afterwards happen, fo that he doth
thereby loſe his Advowfon for ever without Remedy. Sce Chap. 10
Plenariy.
and 13. But Plenarty is not pleadable ordinarily by an Incumbent a-
gainſt the King, for that he at any Time having Right may bring his
Writ ; yet if a Clerk by Inſtitution and Induction upon the Preſentation
of a Stranger, being become Incumbent, de facto, of a Church of the
King's Gift, the King may by ſpecial. Words confirm to ſuch Incum-
bent, ſo that the King cannot afterwards remove him by a Quare Im-
pedit, 7
H. 4. 37, and by Popham; Trin. 4 Jac. King v. Matthew
Brownlow and Gouldsborough, 1 Part 166, and Jenkins Cent 7, Caſe
96, which ſeems alſo to be granted, Mich. 13 Jac. King v. Biſhop
of Norwich and alios, Roll's 1. Rep. 235, but it is there faid, that the
King's Con- King may preſent after the Death of the Incumbent. But if the King
firmation is doth preſent to a Prebend; Ratione Temporalium Epiſcopi, ſede va-
oante, and before Inſtitution the King doth repeal his Preſentment, and
after the ſame Preſentee is inſtituted and inſtalled by the Guardian of
the Spiritualties, altho' that the King ſhould recite that the Preſentee
was canonically inſtituted ex ſua Præfentatione, and fhould ratify his
Prefentation and Incumbency, yet the King may either preſent ano-
ther, and his 'Admiſſion ſhall be good, or have his Remedy at
Law to eriforce the Admiſſion of another Preſentee, becauſe the Clerk
was never inės Preſentatione Regis, nor by Collation, or Inſtitution
and Induction when the Confirmation was made; and fo the Confir-
miation being made of a Title when there was none, was void. Trin.
1 2 Eliz. Dyer 292. See :25 Ed. 3. fol. 47, 90. So if the King be u-
furped upon, and the Ufarper's Clerk be only inſtituted, and then the
King by his Letters Patents doth ratify and confirm to him his Efate
for Term of his Life; this Confirmation will not bar the King, but
he imay bring - his Writ and remove the Clerk, by Reaſon that he
was not in Poſſeſſion for Want of Induction when the Confirmation
was had, 7 H. 4. fol. 7, vouched by Manhood in Hare and Buckley's
Cafe. Trin:20 Eliz. C. B. Plowden 528. So if the Clerk be com-
pleat Incumbent by Ufurpation, and the King doth bring his. Quare
Impedit, and after the King doth confirm the Incumbent's Title, yet
Prejudice of the 'King in After-times, the Court ſhall adjudge the
Confirmation void, and proceed in the Quare Impedit. 45 Ed. 3.
19. Br. Prefontation ał Egliſe 8. Quare. However, the Clerk who
obtains the King's Confirmation in ſuch Caſe; muſt be as well inducted
Induction. as inſtituted, and otherwiſe the Confirmation will nothing avail him.
11 H. 4.7. Br. Quare Impedit 150.
Where the
yoid.
Simile.
3
And
Chap. XXII. The Complete Incumbent.
245
foz urlom.
And as the King, fo, as I ſuppoſe, any common Patron may con- Duare 3m-
firm the Title of an Uſurper's Clerk to bar himſelf of his Remedy
pedit, &c.
to remove him, but if there be two Tenants in Common of an Ad-
vowſon, and one of them being ſummoned and ſevered, the other How a pa-
tron may bat
doth recover alone ; he that is ſevered after the Recovery cannot re- himſelf.
leaſe or confirm to the Incumbent, ſo as to bar the other that reco-
vered; by Dodderidge, Haughton and Damport. Mich. 13 Jaci B. R:
Fairbank v. Durham, &c. 1 Roll's Rep. 244. However, he may re-
leaſe to the Uſurper, when his Clerk is inſtituted and inducted, and ſo
bar himſelf of all Actions at Law, whereby the Uſurper's Clerk might
be removed; but if divers Perſons, as Coparceners, be feiſed of an
Advowſon, and one of them doth releaſe to the Ufurper's Clerk all
Demands, Actions, and Wrongs, touching the Preſentment; this is on-
ly available to bar him that doth releaſe, and not the others. Mich.
39 and 40 Eliz. C. B. The Counteſs of Northumberland's Cafe. 5
Coke 97, and Moor p. 455, and 2 Anderſon 48.
Alſo if a Preſentation be made by a Stranger to an Appropriation; Appropria-
upon which his Clerk is inſtituted and alſo inducted, yet the Patron tion.
of the Appropriation cannot have this Writ, becauſe by fuch Induction
he cannot be put out of Poſſeſſion. 44 E. 3. 33. b. Grendon's Cafe.
Plowd. 500. b. And before the Statute of 27 H. 8. of Uſes, if Ge-
Ceftuy que tije.
Stuy que Uſe of a Manor, to which an Advowfon was Appendant,
had preſented to the Church when it was void by the Sufferance of
the Feoffce; yet if he had been diſturbed, he could not have main-
tained this Writ, for that he had not any Eſtate in him. 17 H. 7:
Keb. 42. b. but now he may. If one hath a Grant of an Avoidance
for Years, or the like, and the Church being void is diſturbed in pre-
ſenting, and dies, his Executors may have a Quare Impedit ſpecially By Execu-
upon their Caſe for ſuch Diſturbance. Trin. 31 Eliz. Swallwood, &c. tors.
v. Biſhop of Litchfield, &c. 1 Leonard 205, and that by Equity of
the Stat. 4 Ed. 3. C. 7. Pafch. 32 Eliz. C. B. Sale v. the Biſhop of
Coventry, &c. 1. Anderſorz 241, and ſhall recover Damages. Mich. Damages
.
32 and 33 Eliz. Smallwood and others v. Biſhop of Coventry, &c.
3. Croke 241, which ſhall be Aſſets in the Hands of the Executor.
Paſch. 31 Eliz. Scale v. the Biſhop of Litchfield. Owen 99. So if
an Husband be foiſed of an Advowſon in the Right of his Wife, and
the Church doth become void during the Coverture, he may have a
Quaré. Impedit in his own Name as fonie hold, but the Wife ſhall Baron and
have it if the ſurvive, and the Husband if he ſurvive her. ; Inft.
351. d, but if the Church had fallen void before the Coverture, the
Turn is a Thing meerly in Action, and therefore the Hushand ſhall
not have it if he ſurvive her. 2. Inft. 351. b. A Chapter may have
this Writ againſt their Dean of their ſeveral Poſſeſſions. 40 E. 3. 28.
b. Generally, he that will maintain this Writ muft be able to count
of fome Seilin or Poſſeſſion, for 'tis a Writ of Poffeßion, and the Pre- Seiſin, &9 cm
ſentment is the Poſſeſſion, and he that brings it muſt be capable of al-
- ledging a Preſentment in himſelf, or in ſome other Perſon whoſe E-
ſtate he hath, 21 Ed. 4. 2, and by Warburton. Trin. 14 Fac. Digby
and Fitzherbert: Cafe 1. Brownlow and Gouldsborough: 167. That is,
that his Clerk be inftituted at leaſt upon fuch Prefemment, for that
is ſufficient without Induction, :38 H. 6. 15: bi by Markham; and up-
on this Reaſon it is, That the Lord Coke faith, Adaiſſions and Inſti-
tutions are the Life of Advowfons, and therefore if the Patron ſuſpect
that the Regiſter of the Biſhop will be negligent in the keeping of
them,
Feme.
246
The Clergy-Man's Law: Or, Chap. XXII. .
r
pedit, fyco
fol whoin.
erects i
Church.
17
may have
suuare Jm. them, he may have a Certiorari to the Biſhop to certify them in
the Chancery. 2 Inft. 358.
If a Man doth crećt a Church at this Day, and be diſturbed in pre-
He who now fcnting, it is ſaid that he cannot maintain a Qzare Impedit, becauſe
he cannot alledge any Preſentment. Roll's Abr. part. 2. 376. Dubita-
tur. 20 Ed. 4. 14. b. Contra 21 Ed. 4. 3. But by Fitz. Nat. Br. 33.
b. vouched in the Caſe of the King againſt the Biſhop of Worceſter, &c.
Vaughan 57, he may in ſuch Cafe have a Quare Impedit without al-
ledging a Preſentation by any Perſon, declaring upon the ſpecial Matter,
and ſo I ſuppoſe the Law is now taken to be. If a Church hath
Appropria- been appropriated Tinie out of Memory to an Abbey, and then the
tion and Ab Abbey to which it was appropriated is diſſolved; this perperual Incum-
.
bency is not a ſufficient Seilin for the Patron, for that the Church
was not preſentative. Roll's Abr. 2. p. 377. Dubitatur. 20 Ed. 4. 15.
But if the King be feifed of an Advowſon which hath been ever held
as appropriated, he ſhall have a Quare Impedit without alledging any
Preſentation. Ed.
3. 10. b. 20 E. 4. 15. So a Preſentation unto
Prebendary. a Prebendary; which is afterwards changed into a Treaſury, is ſuffici-
Treaſury.
ent to maintain a Quare Impedit upon a Diſturbance to the Treaſury.
E. 3. 26, cited in Bevil's Cafe, 4 Co. 9. b. But if an Advowfon
be granted to one by Parliament, ſuch Perſon being diſturbed
his Qyare Impedit. 21 Ed. 4. 3. b. So if the King be entitled to an
Advowſon by Office, he ſhall have his Writ without Preſentation,
21 E. 4. 16 H. 7. 2, but 17. E. 3. 10, is to the contrary, for there
a Preſentment is alledged and traverſed, and the Traverſe allowed by
the Court, where the King made Title by a Seiſure by Office of the
Poffefſion of a Prior Alien, and a Preſentment alledged in the Proctor
of the Prior ; but it is ſaid, that if the Eſcheator feiſe an Advowſon
upon particular Command to ſeiſe it, the King may have a Quare
Impedit without alledging any Preſentment, for the Šeiſure made Ti-
· tle without more.
Recovery in
If a Man doth recover in a Writ of Right of Advowſon, and hath
Execution, he may have a Quare Impedit without alledging any Sei-
Right.
fin, for that the Recovery doth very fufficiently affirm his Right.
14 E. 2. Quare Impedit 171. And it is faid that he may alledge
Seilin in the Recoveree by Preſentment, but this is not traverſable.
17 Ed. 3. 10. b. So a Recovery againſt one in a Quare Impedit,
and Damages for two Years, for that the Church was full of an In-
cumbent, is a good Title after in another Quare Impedit, without
Quare Impe- alledging any Preſentment; but in this Caſe, if he had once preſent-
ed, and the Church full after the Recovery upon his Preſentment,
this Recovery is no ſufficient Title. 42 Ed. 3. 8. b. But it is ſaid,
that a Recovery in a Quare Impedit without alledging a Preſentment
is not ſufficient, for that it may be againſt a Deforceor that claimeth
nothing in the Patronage. 39 H. 6. 25. b.
But generally, he that will have this Writ, muſt alledge a Prefent-
gation neceſ- ment in himſelf, or in him whoſe Eſtate he hath, and ſuch Prefent-
Cary.
ment which was not before the Time of Memory, for that ſuch Pre-
ment is not tryable. 17 Ed. 3, 10, II, 14.b. 20 Ed. 4. 15. 42 Ed.
b. but in ſuch Cafe may ailedge the Preſentment to be within
the Memory of Man, and then it is good, becauſe the Time is not
traverfable. 17 E. 3. 14. b.
* Writ of
Title in
dit
What Alle-
3. 4.
2
If
Chap. XXII. The Complete Incumbent.
247
102 tlm.
tee.
luft Incum.
Moor 455. So if a Grantee of a next Avoidance doth preſent, and Grantec.
If the King be feiſed of a Manor to which an Advowſon is Appen- Quare Amie
dant, and the Church voiding, a Stranger doth uſurp, and after the part of
King doth grant the Manor and Advowſon in Fee to another, as he
may,
for that the ſaid Uſurpation doth not put the King out of Pof- King & Gran-
fion, and then the Church doth become void, the Grantee ſhall have
his Quare Impedit being diſturbed, and make his Title by the laſt Pre-
fentment of the King without making Mention of the Preſentation of
the Stranger. Hob. 140. Mich. 14 Eliz. Leonard 3. 18. 61.4 Leon.
209. Dalliſon 75. By this Caſe it appears, that one may have a Quare
Impedit, and need not therein mention the Preſentation of the laſt In- Need not
cumbent by whoſe Death the Church is void, and upon which Avoid- mention the
ance the plaintiff brings his Action to preſent. So if upon an Aliena- bent.
tion in Mortinain of an Advowfon, if the Lord of whom it is held, Mortmain:
at the next Avoidance, doth bring a Quare Impedit, it is fufficient for
him to alledge a Preſentment in his 'Tenant that did alien it in Mort-
main. 21 Ed. 3. 27. b. So a Preſentment or Collation made by an Collation.
Ordinary upon the Account of a Lapfe is a ſufficient Seilin for the
Patron, 39 H. 6. 24. b. becauſe the Ordinary in ſuch Cafe doth pre-
fent or collate as in the Right of the Patron, and the Law interprets
it as done by the Patron himſelf. Mich. 32, 33. Eliz. B. R. Lanca-
fter v. Lucas. i Leonard 234, Hob. 154, in Colt and Glover's Caſe.
So a Preſentinent in the Grantor of an Advowſon is ſufficient in a
Quare Impedit brought by the Purchaſer, 2 Inſtit. 356, and if the Purchaſer.
Purchaſer be diſturbed by his Grantor, he ſhall have a Quare Impe-
dit againſt him, 39 H. 6. Quare Impedit 95. per Cur. and faid to
have been very often ſo adjudged; fo a Preſentment by the Father
is ſufficient for the Wife of the Son being Tenant in Dower of the Tenant in
Advowſon, and alſo for the fecond Husband in the Right of the Dower.
Wife. 14 H. 4. 12. So the Preſentment of the Grantee of a next
Avoidance is a fufficient Title for the Patron in Fce to have this
Writ, becauſe the Preſentment of the Grantee is made in the Right Grantec.
and Title of the Grantor. 9 H. 7. 23. Counteſs of Northumberland's
Cafe. 5 Coke 97. b. 6. But againk this it was ſaid, that in a Qzare
Impedit the Preſentment ought always to be alledged in him who hath
the abſolute Inheritance, and not in any other, for which were cited,
18 Ed. 3. 15. 24 Ed. 3: 37:1-40 Edi 3i 10. 43 Ed: 3. 4.33 H. 633.
7
7. Ed. 4. 20. 19:H. 7. 23. 1.6 1. 7. 7, in which Books it is held, that
a Preſentment by a Tenant for Life, or for Years, or by a Guardian,
or by a Grantee of the next Avoidance is no Title : for him in Re-
verſion, but all the Juſtices but Owen held as before, and anſwered,
that thoſe Books be not directly, that a Preſentment alledged in the
Grantee is not good, but that where a Preſentment is alledged in the
Grantor and Grantee, that the Preſentment in the Grantor is only
traverſable, för that is the Principal, and the Alledging of the Preſent-
ment in both is not double; and here the Title is not only alledged
by the Preſentment, but alfo by the Deſcent prinċipally, (which note)
and fo Judgnient was given. Mich. 38, 39 Èhg; C. B. Fitton, and
the Counters of Northumberland. &é. v. Holl. 3: Croke 518, and
after the Heir of the Grantor doth grant the next Avoidance, the
faid Preſentment is ſufficient for the ſecond Grantee, 9
H.
7. 23,- Or
if the Grantee of a next Avoidance doth preſent, and after the Gran-
tor doth grairt away the Advowſon to A. who doth grant it to B. the
faid Prefentmeat is fufficient for B. without akedging any Preſent-
ment
248
The Clergy-Man's Law: Or, Chap. XXII,
Years.
ز
-3. 4. b. Alſo if
Quare Ilm- ment in his Grantor or A. Dyer 1 and 2 of Marj 106. So if a
pcdit, Soc.
how brought:
Tenant for Years doth preſent during his Term, it is ſufficient for
him in Reverſion, 22 Ė. 4. 9. b. the like if Leffce for Life doth
Tenant for preſent, 22 Ed. 4. 9. b. Co. 5. 97. b. Co. 6. Bredi man's Cafe. 57
b. 9 H. 7. 23, or 'Tenant at Will. 22 Ed. 4. 9.b. Tenant in Dower,
or by Courteſy, Tenant, by Statute Merchant, Staple or Elegit. Co. 5.
97. i, or Guardian during the Wardſhip, 22 Ed. 4. 9. b. Co. 5. 97.
b, altho' that the king be the Guardian ; and fo where a Manor doth
defcend, and no Prefentment hath been before by the Anceſtors of the
the King doth preſent in the Right of his Ward, tho' the Ward hath
no Right, this is an Uſurpation for the Ward, and is a ſufficient Pre-
ſentation for the King, if the Church doth void again during the Non-
age, and for the Heir afterwards. 42 E. 3. 4. Contra 21 Ed. 4. 9. b.
as to the Heir. However it is ſaid, that a Preſentation made by the
Proctor of an Abbot in the Right of the Abbot, is a ſufficient Seiſin
for the Abbot, 17 E. 3. 14. Admit. 60, 76, and that this Preſentment
by the Proctor ſhould have been fufficient for the King, having the
Poſſeſſion by Reaſon of War, the Abbot being an Alien, 17 E. 3. 10.
Bishop
Admit. 60. Adjudg. 76, ſo a Preſentment by a Biſhop as Patron is
fufficient for the King to maintain a Quare Impedit for an Advow-
ſon that comes to him with the Temporalities of a Biſhoprick. 50
Ed. 3. 26.
Proctor.
CHA P. XXIII.
Writs of Quare Impedit and Darrein Pre-
ſentment, how to be brought.
J Aving ſhewed of what Preferments, and for whom the Writs of
Care in
hringing the Darrein Preſentment and Quare Impedit do lie; the next. Thing
Writs. to be ſhewed, is how theſe Writs are to be brought, and in bringing
of which the plaintiff muſt be very careful; as alſo in managing his
Suit in every Reſpect
.
Firſt, therefore the Patron muſt ſee that his Writ be duly made out,
of the La-
tin or Form, and that in reſpect of the Latin and Form thereof, Paſch. 40. Eliz
Sir Hugh Portman's Caſe, 7 Co. 27, for tho', if the Writ abate upon
that Account, the Plaintiff may have a new Writ, yet if ſuch new
Writ may not be brought within the fix Months, he cannot recover
that Avoidance, and for that Reaſon the Judges have frequently been
very
tender in abating Writs upon nice Exceptions to the Form or
Latin of the Writ, where the Party can have no new Writ, but ſhould
remain Remedileſs if the Writ brought ſhould abate, as where the
Writ ſhould have been, que ad Donationem ſuam fpectat; and (ad)
was left out thereof, yet the Writ was amended after divers Motions,
becauſe the fix Months were pait, and ſo the Preſentation ſhould other-
wife have been loft. Mich. 30 and 31 Eliz. Rooksby's Cafe. 3 Croke
119. So a Quare Impedit being brought by the Queen, Exception
I
Was
Chap. XXIII. The Complete Incumbent .
242
fer.
5 Co.
45. By
was taken to the Writ, becauſe the Wordswere, quod permit
' ipſam pre- Quare zima
fent ad Rectoriam de D. where it ought to be ad Ecclefiam. The Court how bicug':t.
awarded, that the Writ ſhould be openly amended in the Court by a
Rectoriam for
Clerk of the Chancery. Paſch. 37 Eliz. C. B. Leonard 4. part.
Ecclefian.
Caſe 47. So one having Title to preſent to a Vicarage, brought his
Writ of Cụare Impedit ad Præſentandum ad Ecclefiam de W. which
Word Ecclefiam always intends Right of Advowſon of the Parfonage;
but when the 'Title is to the Vicarage only, there is a ſpecial Writ,
ad Præſentandum ad Vicariam, Regift. Orig. 31. 4, fo the Writ was Ad Vicariame
miſtaken ; before the Appearance of the Defendant, the Plaintiff
moved, that the Writ might be amended, and it was amended accord-
ingly, but this Amendment was made upon ſpecial and particular
Reaſons which were in the Caſe, viz. becauſe it was a peremptory
Action; and the ſix Months being paſt, and the Plaintiff a Purchafer In the Cafe
of the Advowfon, and if this Writ' failed, he had loſt his Advowſon of a Purcha
for ever; and the Miſprifion happened (as was made to appear) by the
Clerk, who did not purſue his Direction. Trin. 3 Car. C. B. Turner
v. Palmer. 1 Croke 74, but this Cafe being upon ſuch ſpecial and
particular Reaſons, is not to be depended upon in other Caſes that do
not come up to the Reaſon of it. See Freman's Cafe.
this Caſe it appears, that if a Patron be diſturbed to collate to a Vi-
carage, his Writ ſhall be, Quod permittat præſentare ad Vicariam,
F. N. B. fol. 32, and 15 Eliz. Dyer 323, Regiſt
. 31, and not ad Ec-
clefiam ; but it is not neceſſary to ſay ad perpetuam Vicariam, 17 Ed.
3.° 12, for there is no ſuch Writ: Yet we find, that if the Writ be,
Quod permittat præſentare ad Ecclefiam, and the Title is ad Vicari- Vicaria is
am, this is no Error, for that Vicaria is Eccleſia, and by the Grant Ecolefia.
de Eccleſia, the Advowſon paſſes, by Coke, to which the Courts fceni-
ed to aſſent. Mich. 13 7ac. King. v. the Biſhop of Norwich and o-
thers. Roll's i Rep. 237. So where by the Statute 22 Car. 2. for
rectifying of London, and uniting ſeveral Pariſhes there, it is enacted,
That the Pariſhes of St. Andrew Ward, and of St. Anne Black-Fry-
arsy ſhall be united, St. Andrew to be the Pariſh-Church, and that
the Patrons ſhall preſent by Turns; the firſt Preſentment to be to the
Patron of the Church, which is of the greater Value: And in a 24a-
re Impedit the Plaintiff declared upon this Statute, and ſhewed that
the Church of St. Andrew was of greater Value than the Indowment
of the ſaid Vicarage of St. Anne Black-Fryars, and that the Patron
of St. Andrew preſented one B. who was dead, therefore it belonged
to the Plaintiff to preſent: In this caſe, Exception was taken to the
Declaration, for that the Plaintiff made Title to prædi&ť Vicaria
where no Vicarage was inentioned before, alſo the Plaintiff's Title is Where no
to a Vicarage where the Statute mentions only Churches, ſo the Plain- Vicarage was
tiff had not brought his Caſe within the Statute. But it was reſolved before.
by the Court that the Word prædi&ta ſhall be taken as void, and not
the whole Sentence made void by it; and as to the ſecond Objection,
that altho' Ecclefia e Vicaria are different Things, yet it appearing
by the Record, that the Rectory of St. Anne Black-Fryars is appro-
priated, the Vicarage ſhall be a Church within the Intent of the Sta-
tute. Hill
. 7 W. 3. C. B. Reynoldſon v. Epiſc. London and Blake:
If a Writ be brought upon a Diſturbance to collate, yet it ſhall
be good if it fay Preſentare. 17 Ed. 3. 64. But if a Patron doth
bring his Writ for a Chapel, the Writ ſhall not be quod permittat
xx
3 Levinz. 435.
Pran
250 The Clergy-Man's Law: Or, Chap. XXIII
Donatiye.
Medietatem
where two
Three Pa-
Quare 3ms præſentare ad Ecclefian, but ad Capellam, 8 H. 6. 32, 37, and if he
peüit, Eco
hath the Right of preſenting, his Writ ſhall be preſentare, not No-
low hought.
minare, elfe it will abate. Brownlow and Gouldsborough i Part, p.
dd Capellam. 159. If the Clerk of a Donative be diſturbed, his Patron may have
a Quare Impedit, quod permittat ipſum præſentare ad Eccleſiam, &c.
and declare upon the ſpecial Matter. Co. Litt. 344. I Jac. B. R.
Fairchild and Gair's Caſe. Roll's Abr. Part 2. p. 380.
Preſentate ad If there be two ſeveral Patrons, and two ſeveral Incumbents of one
and the fame Church, ſo that the one Patron hath a diſtinct and fe-
Patrons, &c. parate Half of the Tythes for his Incumbent from the other Patron
and his Incumbent, as it may be. Mich. 15 Car. B. R. Stoughton v.
Palmer. Jones 446. 10 Coke, fol. 136. F. N. B. 39. In this Cafe,
both the Advowſon and the Church are ſever'd in Right and Poffet
fion, and either Patron, if diſturbed to preſent to his Moiety, may
have a Quare Impedit præſentare ad Medietatem Ecclefie. 33 8. 6. 11.
I Inzft. 17. b. 18. a. So where there are three Patrons and Parſons of
trons, ad ter- one Church, Gc. each Patron may have his Quare Impedit præſentare
tiam partem. ad tertiam partem Eccleſia, and not ad Medietatem Ecclefiae. Vide F.
N. B. 30, 31 Ed. 3. Droit 68, 69. 22 A. p. 33. And ſo if one be
Patron of two parts of a Church, his Writ may be Præſentare ad
Ad duas partes duas partes Ecclefiæ ; but in theſe Caſes, (by Coke) the Pátron may
Ecclefie. if he pleaſe have a Quare Impedit præſentare ad Eccleſiam; as well as
in the other Form, becauſe upon the Matter as to hinı it is one Church,
Irin. 10 Jac. C. B. Richard Smith's Cafe. 10 Coke 136; to which
agreeth the Books of Entries. 477. Title Quare Impedit. 6 Ed. 6.
Dyer 78, and the Lord Windſor's Cafe. 5 Co. 102.
But however, it is ſaid that where there be two Advowſons in one
fons in one Cliurch, the Declaration muſt be to the Moiety, or the third Part,
as the Caſe ſhall be. Mich. 15 Jac. Windham v. Biſhop of Norwich.
Brownlow and Gouldsborough 1 Part 165. And according to this,
when one brought a Quare Impedit præſentare ad duas partes Ecclefia,
and in his Declaration made Title to the Advowſon of two parts of
the Church, it was held per Curiam, that the Writ was good, and
that the Declaration did well maintain it, becauſe that in a Church
Several Per- tliere may be ſeveral Portions to which Preſentments may be made;
Church, Sc. as one of the Firſt, another of the Second, and another of the Third
Portion, c. and of them there may be divers Advowſons, and he
that is diſturbed may declare that he is feiſed of the Firſt, Second,
or Third Part, as the Cafe requires. But in the principal Caſe, if
the Declaration had not been that he was feiſed of the Advowſon of
the two Parts, but according to the Writ, that he was ſeiſed of the
two Parts, and preſented, the Writ and Declaration would have a-
bated. Paſch. 37 Eliz. Starkop v. the Biſhop of Lincoln. C. B. 2
Anderſoñi 23.
But when there is but one Incumbent of one Church, altho' that
bent and Ad- the Advowſon be divided and ſevered into ſeveral Hands, to preſent
by Turns, yet there ſhall never be a Quare Impedit preſentare ad
Medietatem ſeu tertiam partem Ecclefia, but ad Ecclefiam generally,
becauſe there being but one Incumbent, one Church, and one Cure,
there is not any Moiety in the Church which is the Parſon's
, but the
fume is entire, although that there be in the Advowſon. Vide F. N. B.
39: fi g. 5 H. 7. 8. Trin. 1o Fac. C. B. Richard Smith's Caſe. 10
Claim of en- Coke 136. 1 Inft. 18. . Therefore in a Qpare Impedit brought to
permit him to prefent to the Church of A. and declared that he was.
feifid of a Manor to which the Advowſon of the Church was appen-
fent by 'Turn.
dant,
Two Advow-
Church,
One Incum-
vowfon ſe-
ver'di.
tire Advow-
fon to pre
2
Chap. XXII. The Complete Incumbent.
-25
dant, viz. 00. preſent therсto every firſt 'Turn ; and that another was Quare Flyis
feiſed of another Manor, to which the Advowfon was appendant; viz. Bjoeht.
dit, how
to preſent thereto every ſecond Turn, and an Exception was taken to
the Declaration, becauſe by the Writ the. Plaintiff claimed the entira
Advowfon, and by his Count he claimed but the firſt Turn, and alfo
becauſe he did not alledge that he ought to have the firſt Turn;
but the Exception was over-ruled, becauſe when in ſuch Caſe the
Church is void, be to whom it appertains to preſent, hath the entire
Advowfon. Mich. 13 Jac. Windhain v. the Biſhop of Norrich, Browai-
low and Gouldsborough 1 Part 165.
But if in ancient Time there have been two Patrons of one Churchi, Two Pa-
and the one Patron was wont to preſent to one Moiety, and the the Church
other to the other Moiety, and after both the Moieties at two ſeveral afterwards
Times be appropriated to one and the fame Church or Hoſpital, and appropriated
after that is held as one entire Rectory, and certified into the Court of
Firſt-Fruits, as one Rectory, and then this Church is preſented to by
the Appropriator, or by him that may happen to be, the Impropriator
thereof, as to an entire Rectory, upon any Diſturbance which may af-
ter happen, the Writ ſhall be Quare Inrepedit præfentare ad Ecphen
fiani, for that then is but one: Incumbency, and one. Patron of the
whole Church, which I colled from Stoughton and Palmer's Cafe.
Mich. 5 Car. B. R. Fones: 446,
As concerning the Writ of Right in thefa Cafes, it is ſaid by Coke, Writ of
that where two Patrons do preſent two ſeveral Perſons to one Church, there Caſes
.
a Writ of Right lieth de advocatione Medietatis Ecclefia , but when
the Advowfon is only parted betwixt two Coparceners, and one çis dis
ſturbed by a Stranger, a Writ of Right lieth de Mediętate advocate
tionis. Trin. 10 Jac. C. B. Richard Smith's Cafe. 10 Coke 136.;
The Alteration of the Church as to its Name or otherwiſe, doth Alteration
no Ways obſtruct the Patron from having this Writ of Quare Impedit ecce of the
for the Recovery of the Prefentment, if this Writ might have former- Church, hin-
ly been brought before ſuch Alteration made; therefore if a Patron
hath preſented to a Provoſtfhip, and after the Name is changed, yet
the faid Preſentment is a fufficient Seiſin to maintain a Quare Impedit
upon the new Name. 50 Ed. 3. 26. and 4 Coke 9. · So if a Prefent-
ment hath been made to a Church Parochial, and then it is turned to
a Church Collegiate, the Patron may have a Quare: Impedit without
other Preſentment; or if Preſentment hath been made to two Churches,
and after they be united, he that is made Patron by this Union may
have this Writ without other Preſentment; or if Preſentment be made
to an Advowfon, and after it be appropriated, and a Vicarage made Appropria-
in the ſame Church, the Preſentment aforeſaid is ſufficient to have
a Quare Impedit for the Vicarage, without other Preſentment to the
Vicarage ; and after a Vicarage is endowed, if the Patron doth preſent
thereto as to a Parfonage, it is thereby become a Parſonage, and the Parſonage.
Incumbent may be ſued in a Writ of Annuity as Parfoit, and the Pa-
upon ſuch Diſturbance may have his Writ as to a Church. 11 H.
6. 18, cited, Mich. 4 Jac. C. B. Sir Moyle Firch's Cafe. 6 Coke 66.
So if a Perſon be Patron of a Chapel that hath Fura Parochialia, Chapel by
and doth preſent thereto by the Name of a Church, and the Preſen- Name of
tees have been received thereto, as to a Church, it is no longer a
Chapel, but a Church, and if a Diſturbance happen upon any Avoid-
ance thereof, the Patron may have his Quare Impedit as to a Church.
47 Edi 3. 5. d. cited Mich. 4 Fac. C. B. Sir Moyle Finch's Cafe.
X x 2
6 Coke
ders not.
Union.
tion.
tron
Church
252 The Clergy-Man's Law: Or, Chap. XXIII.
Name of
If Two
Names.
Quare Ime 6 Coke 66, and by Dodderidge and Coke. Hill. 12 7ac. Church-War-
pedit, opc.
dens of Aſhton v. the Pariſh of Brummage. Rolls i Rep. 126. And
how brought.
if the Defendant ſhould plead that the ſame is a Chapel and no
Tryal. Church, that Matter ſhould be tried by the Country, and not by the
Biſhop. 45 E. 3. 6. 8 H. 6. 32, 37. But a Preſentation to a Church
Church by by the Name of a Chapel will not make it ceaſe to be a Church;
for the Caſe was, that in the Time of H. 3. there were two Recto
Chapel.
ries, A. and B. and the Patron of A. 8 H. 3. purchaſes the Rectory
of A. After which, conſtantly Preſentations were to the Church of
A. cum Capella de B. and reſolved, That altho' the Patrons of A. ever
after the faid Purchaſe, had preſented only unto the faid Church of
A. cum Capella de B. yet B. notwithſtanding remained in Right a
Church, and the Freehold of it in Suſpenſe. Savil 17, 18. It is alſo
faid, that every Chapel ſhall be intended to be temporal, and not to
belong to the Ordinaries Juriſdiction rather than Spiritual, and within
the Ordinaries Juriſdiction without that be made to appear. 6 H. 14. a.
If a Church be known by two Names, the Patron may have this Writ
for the Church by either Name, though it hath not had both Names
Time out of Mind. 21 H. 8. 4. And if Iſſue be joined, that there
is no Church known by that Name in the County where the Writ
is brought, yet if there be any Church in the fame County known
by ſuch Name, it is ſufficient to maintain that Writ, which agreeth
with the Book of 41 Ed. 3. 30. Mich. 4 Jac. C. B. Sir Moyle
Finch's Cafe. 6 Coke 66. And if two Churches be united, and the
Advowſons become one, if it be known by the Name of both Churches
,
the Patron may maintain his Writ by one Name or the other, and
need not mention both Names, as to ſay Dale cum Sale. Coppledicke
v. Tanſy. Hutton 31. Neither is it requiſite in a Quare Impedit or
Darrein Preſentment brought, to name the Saint to which the Church
was dedicated, but only to ſay generally, ad Ecclefiam, or ad Vica-
riam de Dale, as the Cafe ſhall be, becauſe the Church is ſufficiently
known by that Name, Dr. Ayry's Caſe. Hill. 11 Jac. 11. Coke 22.
But if there be ſuch a Miſnoſmer of the Church, that there cannot
So it fuffici- appear to be any ſuch Church, or that it be not ſufficiently differenced,
ently diffc- fo that it may be known from another Church, the Writ will abate.
See for this 40 Ed. 17 Dyer 259. b. In all Writs of Quare Impedit
,
the Teſt of the Writ ought to be made the very Day it is taken out,
and not at any Time before, and this by Reaſon of the Lapfc. Regift.
Orig. 30. a.
Iſſue.
Need not
mention both
Names.
Nor Saint's
Name.
C H A P.
!
Chap. XXIV. The Complete Incumbent.
253
CH A P. XXIV.
Quare 3m-
pedit and
Darr. 1920-
(entment.
Quare Impedit and Darrein Preſentment,
by whom, againſt whom, and in what
County to be brought; and what ſhall be
ſufficient Cauſe to abate ſuch Writs, and
incidently of Jure Patronatus & Quare
non Admiſit.
N the next Place, Care muſt be taken that the Writ be brought by Jointenants,
IN
proper Perſons, as to that Tenant in Common and Jointenants &c. to join
ought to join in the Writ. Paſch. 37 Eliz. Stanhop v, the Biſhop of in the Writ.
Lincoln. Anderſon 2 Part 23. Mich. 24 and 25 Eliz. William Har-
ris v. Nichols. Anderſon 63. So if an Advowſon doth deſcend to Co-
parceners, and a Stranger doth preſent, all the Coparceners muſt
Coparceners
join in the Writ, becauſe he that uſurps gains the entire Advowſon
againſt them all; but if the Writ be brought jointly by many, and
they do vary in their Declaration as to the Title they make, the Writ
Variance an
Íhall abate, becauſe the Judgment ought to be according to the Writ, Abatement.
if there be not Summons and. Severance; and upon divers Titles a
Joint Judgment cannot be given, and they can but have one rightful
Title, which muſt be intended to be jointly in them all, the Writ be-
ing brought jointly by them. Moor 184. 26 H. 8. 5. 8. But if two
Coparceners or Jointenants join in a Quare Impedit, and the one will
plead covenouſly, he may be compelled in Chancery to join with the
others in Plea. Cary, p. 20.
If an Husband be feiſed of an Advowfon in the Right of his Wife, Baron and
the Church voiding, the Husband alone without his Wife, but in the Feme.
Right of his Wife, may maintain a Quare Impedit. Bro. Abr. tit.
Baron and Feme. 28 and 41. For the Preſentment that is to be re-
covered is but a Chattle, and belongs to the Husband, and the Wards
of the Quare Impedit are proper to ſerve him, for that he is hindred
to preſent to a Church that is in his Gift; or he may, as is ſaid by
ſome Books, bring an Aſſize of Darrein Preſentment without joining
his Wife, in that the Preſentment alone is recoverable in the one
Writ as well as the other. Jenkins Cent. 1.Cafe i Hill. s Car. C. B. Dixy
v. the Bailiffs and Burgeſſes of Derby. Hetly 159. Litt. Rep: 274. !
Inftit. 351. But in March 47, it ſeems to be held, that the Wife
ought to join with her Husband, being that though the Preſentment
belongs to the Husband, yet it is in her Right. But it is made a
Doubt by fome Books, whether an Aflize of Darrein Preſentment
doth lie in ſuch Caſe for the Husband alone ; for tho' it be granted that what reco-
the Writ of Quare Impedit doth well lie, yet it is ſaid that an Alſize of vered in
Darrein Preſentment is not maintainable by the Husband without his Luaro Impa
Wife, for that the Husband ſhall recover nothing but his Preſentation
and Damages, which is the Judgment in a Quare Impedit ; but an Afúze
of Darrein Preſentment is a mix'd Aation in which the Advowſon it And what is
ſelf is to be recovered; which the Husband cannot do without his Wife Darrein
joining with him. Bro. tit. Baron and Feme 48. i Brownlow 159.
Preſentment.
But
dir.
1
leiliment.
Fcnie Solc
contrary to Reaſon, that he ſhould be named only that could nei-
254 The Clergy-Man's Law : "Or, Chap. XXIV
Qurre ? ms But this ſeems contrary to what is ſaid by Coke in Harris and All-
Darr. pries ftin's Cafe, 3 Bilft. 38, and alſo to the Regiſter 30. a. and to
Brownlow 160, and to all the Booksówhich own that a Quare Innpe-
U dit is a Writ of higher Nature than the Writ of Darrein Pre-
fentment. Brownlow and Gouldsborough I Part. 159. Bri Abr. tit: Bar
ron & Feme, ſq. 28. So if a Feme Sole, being an Infant Heit, be
uforped up. uſurpéd upon, and after, the bồing of Agé-and married, the Church
dóth void again, it is doubted whether the Husband alone in ſuch Caſe
may bring the Adion ; but the Court ſeemed to think that he might.
Hill
. s Car. C. B. Dixy v. the Bailiffs and Burgeſſes of Derby; Het-
ley, 159. The Reaſon of the Doubt in this Cafe was, the Remedy gi-
ven to Infants by the Stat. Weſtmi, 2. c. 5, and the wife had but a Right
left in her by the Uſurpation in her Infancy before her. Marriage, and
fo ought to join with her Husband to recover that Right; but if the
Preſentation Husband or Wife had by Preſentation reveſted the Poſſeſſion of the Ad-
yowfon in the Wife, then the Court was clear of Opinion, the Huf-
band upon any other Diſturbance might bring his Action alone with-
out his Wife. However the Writ may be brought by Husband and
Wife, when the Advowſon is the Husband's in the Right of his Wife;
by Coke, Paſch. 31 Eliz. Hall's Cafe. :7 Coke 26. Trin. 29 Eliz.
Specot v. Biſhop of Exeter, Gouldsborough 35. Marsh, Cafe 75.
Againſt
As the Writ muſt be brought by proper Perfons, ſo that it may not
whom to be abate; it muſt be brought againſt proper Perſons; and therefore when
when, Sc. by the Judgment in a Quare Impedit, the
Inheritance
, Eſtate or Inte-
reſt, of the Patrón is to be deveſted, the Patron who preſented ought
to be named in the Quare Impedit : Firſt
, Becauſe the Patronage
ſhould be elſe' recovered againſt him who hath nothing in the Patro-
nage, viz. the Clerk, and it is not Reaſon that he who is Patroni ſhould
preſenred.
be diſpoſſeſſed; and outed of his Patronage when he is a Stranger, and
not Party to the Action, eſpecially when he may be made a Party.
Secondly, Becauſe at the common Law (till altered by Statute 25 Ě.
4. cap. 7.) the Incumbent could not plead the Patron's Title; or any
Plea that did concern the Right of the Patronage ; and therefore it is
revested.
::
Patron who
Said, ſuch
Patron necd
not be na-
med.
ther defend his Patron's Right nor his own; upon which Reaſons, it
is ſaid by. Coke, that it was agreed by the Court, that the Patron in
ſuch Caſe ſhall be named. Pafch: 31 El. C. B. Hill's Cafe. 7 Coke
26, and Savile Cafe 184. But this Càſe reported by Coke, being af
terwards moved, as appears. 2 Leonșrd 58. Mich. 32 El. C. B. Hall
and the Biſhop of Bath's Cafe. Drew Şerjeant argued for the Plain-
tiff, that the Writ was well brought without naming the Patron:
Firſt, Becauſe the Writ ſhall not abate if the Patron Defendant dic
pendant the Writ. Secondly, Becauſe the Plaintiff might not knotv
who had preſented the Incumbent whom he found a Diffurber. Third-
ly, Becauſe if ſuch Patron muſt of Neceſſity be named, ſuppoſing that
he ſhould dié before the Writ brought, he that hath Caufe of Action
would be without“ Remedy. Upon which Reaſon, Anderſon and
Periäm Juftices ſaid, that the Writ was good in ſuch Cafe without
naming the Patron. And Anderſon put this Cafe, if one by Uſur-
pation preſent his Clerk who is received, and thereby having gained
the Patronage, doth grant it to another, againſt whom is the Writ to
But the Law be brought ? Wali! (who it fèems was for the raming the Patron)
sicherwiſe ta- ſaid againſt the Grantee. Anderſon Joubted. But whát" Judgment
was
en is not faid," but the Law is commonly takeli to be, that the
pa
2
Chap. XXIV. The Complete Incumbent.
255
7. Kell.
Patron ought to be named in the Writ, or it will abate. And ſo it I gaisa
is faid, Brownlow and Gouldsborough i Part 158, and in jinchcomb when, and
and Publeſton's Cafe, Hob. 193. And ſo it was reſolved, Mich. 20 howblought.
Fac. B. Ř. in the Caſe of Sir George Savile v. Richard Thornton. 2
Cro.651. Palm. 311. Fon. 12. Rol. 2. Rep. 239. And altho' the Pa-
tronage be gained by the Preſentation, Admiſſion and Inſtitution of a
Clerk by Uſurpation, yet fuch Patron ought to be named with the In-
cumbent in a Quare Impedit, Jenkins Cent. 5i Caſe 18, and delivered
by Frowick for clear Law. Trin.
19
H.
53.
But when the Inheritance, Eſtate or Intereſt, of the Patron in the Áliter, if this
Patronage ſhall not be deveſted by the Judgment, if any other be Inheritance,
named in the Writ as a Diſturber, it is not needful to name the right be develeda
ful Patron, or he that preſented as ſuch. Paſch. 31 El. C. B. Hall's
Caſe, 7 Coke 26. Therefore where the Preſentation was only to be re-
covered, and not the Advowſon, nor the Patron put out of Poſſeſſion,
the Writ was adjudged good without naming the Patron. 7 H. 4. 25.
37 Savile, Cafe 184. Or if the King doth preſent, and the Clerk is ad-
mitted and inſtituted, the Quare Impedit muſt be brought for Neceſſity King's
againſt the Biſhop or Incumbent, for that it doth not lie againſt the Clerk.
King, nor did it againſt the Pope. 12 H. 8. 12. 4 H. 7. 15. &c.
Winchcomb and Pulleſton's Cafe, Hob. 193, and by Frowick.' Trini 19
H. 7. Kell. 53. The ſame may be ſaid as to an Affize of Darréin
Preſentment, 1 Brownlow and Gouldsborough 158. And as the King Patron need
as Patron cannot be named in the Writ; fo need not the King name not be na-
any Patron when he ſues, but only the Incumbent. 17 Ed. 2. 11.
Páſch. 31 Eliz. C. B. Hall's Cafe. 7 Coke 26. b. Yet it is ſaid; that
if the King claim to preſent by Lapſe or Simony the Patron ought to
be named, altho' the Patron be only a Grantee of the next Avoidance;
the King 0. Biſhop of Litchfield, c. Noy 150.
But the contrary of this hath been ſince adjudged, viz. that where
the King brings a Quare Impedit; and makes Title to preſent hy Rea-
ſon of Simony, that the Patron need not be named in ſuch Action, for
his Title is not in Queſtion, but admitted, and the King in ſuch Cafe
claims in Affirmance of the Patron's Title, and in his Řight, and the
Patron ſhall not be put out of Poſſeſſion by Recovery in ſuch Action
but hath had the Fruit of his Preſentment; therefore the Patron need
not be made a Party in the Suit, but the Clerk is to be thereby re-
moved for the Simony, by 3 Inſt
. againſt Charlton Juſtice, who doubt-
ed. Pafch. 33 Car. 2. B. R. Dominus Rex v. Archiepiſcopum Ebor?
and Sowton, 3 Levinz 16, and Mich. 36 Car. 2. C. B. Dominus Rex
v. Piget, 3 Levins 206.
If the Biſhop hath collated by Lapfe, it is ſufficient to name the If the Biſhop
Incumbent only. 9 H. 6. 32. by Babington and Noy 851. So where hath colla-
the Defendant is Diſturber without any Preſentment, * H. 4: 26; or
ted by Lapfes
upon a void Preſentment, as when a Dean is preſented by the Dean
and Chapter to a Living of their Gift. Fenk: Cert. 4. Caſe 18. p.
199, or if the Incumbent be deprived, and doth keep himſelf in; 4 Ed.
18, which Caſes were cited by Serjeant Fenner: Mich: 28 and 29
El. C. B. the Queen and Middleton's Caſe, i Leonard 45.
When the Patrön is not named in the Writ; the Incumbent may Incumbent
.
plead it in Abatement of the Writ; but the Ordinary cannot, for the
ought to
plead the
Ordinary's Office and Acts are not joined with, nor do depend upon the Abatements
Patron's Right, as the Incumbent's do ; by Hobart; in Sir William Elvis's
Cafe c. the Archbiſhop of York, &c. Hobart 317
When
256 The Clergy-Man's Law: Or,. Chap. XXIV.
Wilritabat:
ED, CODICE
When the
to be named.
Writ not
voidable.
to the Writ.
When ever the Patron is not named in the Writ when he ought to
be, the Incumbent is to plead the fame, if he will have any Advan-
tage of it; and if he doth not plead it, altho' the Jury doth find, that
Patron ought the Incumbent is of the Preſentation of one who is not Party to the
Writ, yet this finding of the Jury will not avail the Incumbent, it be-
ing but of Office only, and the Incumbent not taking Advantage of it
by Plea hath waved it; but if ſuch Matter be pleaded, it doth not a-
båte the Writ, but only makes it abatable, and ſuch Matter as makes
a Writ abatable only, is not aſſignable for Error. Mich. 6 E. 6. Dyer 76.
Jenkins Cent. 5. Caſe 36. So'tis faid, if the Writ be brought againſt the
Biſhop and Incumbent, without the Patron, the Writ is not prima fa-
void, but
cie void, but voidable by Plea, viz. of the Incumbent, and becauſe
there be two Caſes, as 'tis faid, in which the Patron ſhall not be
named, that is, if the Incumbent be preſented by the King, or by the
Pope, the Incumbent ought to fhew of whoſe Preſentation he is
that it may appear to the Court that his Patron ought to be named
for it ſhall not be intended, but rather the contrary; and a Fault that
abates the Writ ipfo fa&to, ought to be apparent to them as Judges ;
Concluſion alſo the Party ought to conclude to the Writ, in all Cafes when he
would have it to be abated, and if the Defendant ſhall ſay, that he is
in Ex Praſentatione, A. B. who is in full Life, &c. this is not of-
fered as any Plea in Abatement, being he doth not conclude to the
Writ, but pleads it as in Bar to the Action; and by Ley Chief Juſtice,
the Averment of the Life of the Patron in ſuch Cafe is fuperfluous,
and not traverſable, and by him, the naming of the Patron is not for
the Benefit of the Patron, but of the Incumbent, and ſo if he will not
take Advantage of his not being named, the Writ ſhall not be aba-
ted. And the Court agreed, that the Party having admitted the
Writ to be good in the Court of Common Pleas, by not pleading
there in Abatement of it, he ſhall be concluded to alledge it upon a
Writ of Error brought. Alſo the Court refolved, That the Court of
Conimon Pleas ought not to have abated the Writ ex Officio in ſuch
Where the Caſe, neither ought the King's-Bench ex officio upon a Writ of Er-
Court ought ror, to reverſe the Judgment, upon an Allegation of ſuch Omiſſion.
Writ, &c. And therefore they took a Difference when the Writ is vitious in Sub-
ex Officio. ítance, or when it appears to them thereby, that the Patron hath not
Cauſe of Action, there the Court ought to abate it ex officio; but when
it is abatable by collateral Matter of Fact out of the Writ, of which
they cannot take Notice as Judges, it ſhall be otherwiſe, if it be not
pleaded, as here, if he be Patron, or if he be in Life. Mich. 20 Jac.
B. R. Thornton v. Sir George Savil, Palmer 311. 2 Cro. 651. Fores
12. Rol. 2 Rep. 239.
And note, That if Doubt be who is Patron, a Bill may be in Chancery
ver the Pa- to diſcover him, whereby a Quare Impedit may be brought: Ordered,
2 Car. Tothil 230.
Not only the Patron, but alſo his Incumbent muſt be named in
the Writ, for if an Incumbent at the Time of purchaſing the Original
Writ be admitted and Inſtituted at the Preſentation of any one, altho'
the Ordinary and his Patron be named, yet ſuch Incumbent that is not
mentioned ſhall not be removed, but only the Patronage recovered; by
Dodderidge and Coke, Trin. 13 Jac. B. R. Harris v. Auſtin Bul
. 3
part 28. Jenkins Cent. 5. Caſe, 18 Brownlow and Gouldsborough i
part 158. Paſch. 13 El. Hall v. the Biſhop of Bath and Wells, and
Mantou, Savil's Cafe 184. Mich. 3. Fac. Boſwell's Cafe, 6 Coke 51.9 H.
a
Collateral
Matter.
Bill to diſco-
tron,
Where the
Incumbent
muſt be
named.
ܪ
6. 32.
2
Chap. XXIV. The Complete Incumbent.
257
ted, bec.
when to be
named.
6.3?, and 56. 19 H. 6. 68. b. 5 Ed. 4. 115, and by Hobart, Pafch. Writ abas
17 Fac
. in Sir William Elvis's Cafe, v. the Archbiſhop of York, Taylor
and Biſhop. Hobart 316. And tho' a Clerk be received by the Ordi-
nary upon a void Preſentment, in which Caſe he is in only as it were
by wrongful Collation, and the Ordinary will not receive the true Pa-
tron's Clerk, ſo that he is driven to his Quare Impedit; yet if ſuch
Incumbent be not named therein he cannot be removed, by the Opi-
nion of the Chief Juſtice Hobart, Hill. 17. Jac. Gawdy v. the Arch-
biſhop of Canterbury, &c. Hobart 302. And as the Incumbent muſt
be named, fo he must be named with his proper Addition; therefore By proper
when the Dean of St. Paul's was promoted to the Archbiſhoprick of Addition as
Dublin, and a Quare Impedit was brought againſt him as Dean, where- Bifhop eled,
in he was not named Biſhop, altho' after Election, and before Conſe
cration, it was refolved, that in all Caſes concerning the Lands of the
Dean he ſhall be called Dean, but in Actions, as Quare Impedit, &c.
he ſhall be named Biſhop elcct. 5 E. 2. Fitz. Brief 800.
In fome Cafes it is neceſſary alſo to name the Ordinary in the Writ, Ordinary
for if the Patron be diſturbed in preſenting, and the Church be not fil-
led, the Ordinary is to be named in the Writ, or elſe he will collate
hanging the Suit by Lapſe ; whereas if he be named, he muſt either
diſclaim, and then Judgment may be had againſt him, or elſe he muſt
plead, and ſo allow himſelf to be a Diſturber, and being made Party
to the Action, he is barred of the Advantage of Lapfe. Mich. 3 Jac.
Lancaſter v. Lowe, 2 Croke 93. Hill. 9 Car. Lort v. the Biſhop of
St. Darids, Fones 332. Pafch. 17 Jac. in Sir William Elvis's Cafe, v.
the Archbiſhop of York, Taylor and Biſhop, Hobart 320. Regift. fol.
31, and by Hobart, Mich. 15 Jac. Brickhead v. the Archbiſhop of
York, Hobart 200, and Jenkins Cent. 1. Caſe 74. And note, that not
always the Biſhop within whoſe Dioceſe the void Church is, but ſome
other, may be the Ordinary that ought to be named, for in the Time
of Vacancy of the Biſhop's See, or if the Biſhop be in remotis about
the Affairs of the King, or State, then the Preſentation muſt be made
to the Guardian of the Spiritualities, which commonly is the Dean Guardian of
and Chapter, or to the Vicar-General which ſupplieth the Room and Vicar-Gene-
Place of the Biſhop. 17 Ed. 3. 23. b. F. N. B. 93. And it is ſaid,
that if a Biſhop maketh a Guardian of the Spiritualities, and then go
beyond the Sea for any of the Cauſes aforeſaid, and the Patron doth
preſent his Clerk to the Guardian of the Spiritualities in the Abſence
of the Biſhop, and he refuſeth to admit him into the Benefice or
Church without fufficient Cauſe of ſuch his Refufal, that the Patron
in ſuch Caſe may have and maintain a Quare Impedit againſt the
Guardian of the Spiritualities, by Pafton and Aſcough Juſtices. 22
H. 6. 29. b. So if the Church be filled by the Biſhop upon the Ac- When
Church
count of Lapſe, and the Patron will bring his Quare Impedit, the
filled by
Patron muſt name the Biſhop with the Incumbent, for if the Writ be Lapſe.
only againſt the Incumbent, altho' that he anſwer that he doth not
claim any Thing in the Patronage, but that the Biſhop did preſent
him by Lapſe, yet becauſe neither the Patron, nor the Biſhop, who
in this caſe, is in the Place of the Patron are named, the Writ will
abate, for if ſuch Writ was maintainable, every Patron by Covin be-
tween a Stranger and Incumbent, may be outed of his Advowſon. 42
Ed. 3. 7, and therewith agree 9 H.6.30, 31. 3 H. 4. 2, 3. 13 H. 8.
13, vouched by Coke, Paſch. 31 Eliz. C. B. Hall's Cafe, 7 Cuke 26.
:
ral.
Y y
But
d.
258
The Clergy-Man's Law: Or, Chap. XXIV.
peoit.
mi
ani
more Diſtur-
bers than
Quare Fm- . But if the Church be full, ſo that there is no Danger of Lapſe, it is
in vain to name the Ordinary, and ſo to arm him with a plea who
Aliter when now can do no more Hurt or Good, but only to be anſwerable as
no Danger
of Laple.
to Damaget; (if he be anſwerable or not, Quære; and ſee Jenkiris
Cent. 1. Caſe i9,) which the Patron and his Incumbent will be ſuffi-
cient to snfwer. And if the Biſhop be named, and doth diſelaim, it
is beſt for the Plaintiff to-take his Judgment, and not to maintain him
a Diſturber; for if he dăth, and it be found againſt the plaintiff
,
Hobart holds; that the Bifhop's Collatee for Lapſe hanging the Suit,
ſhall not be removed, bý: reaſon the plaintiff can have no Judgnient
nor Writ; non obftante reclamatione Epiſcopi, he being barred as a-
gainſt the Bilhop. And Hobart further advifeth a Plaintiff, not to name
Not to name möre Diſturbers in his Writ than are likcly to have reaſonable Titles,
becauſe every Diſturber will make a feveral Title, and traverſe, or
nccdful. confefs and avoid the Plaintiff's Title, whether he himſelf hath good
Title or not, and fo 'tis better not to name them, for they can but
preſent and get their Clerks in hanging the Suit, which will be re-
moved by a Writ to the Biſhop, if their Titles be not good, but ſuch
as have reaſonable Pretence of a Title are fit to be named, that their
Titles may be diſcuſſed directly at the Miſe of the Parties, and not
left to an After-game, viz. the Title to be tried between the Iriçum-
bent that comes in hanging the Writ, and the Clerk that is admitted
upon the Wtịt to the Biſhop, whom the Biſhop may not refuſe upon
account of the Church's being full of the other, (but Quære as to that)
Sir William Elvis's Cafe, in the Archbiſhop of York. Taylor and Bi-
mop, Hobart 320.
Biſhop's Di But as to the naming of the Biſhop in the Writ, to prevent his ha-
fair after the ving the Advantage of a Lapſe, it may be ſaid that it is not, or at
Date of the leaſt not generally true, that the bringing of the Writ againft
' the Bi-
fhop ſhall prevent him from collating or prevent'the Lapſe, for if a
Quare Iimpedit be brought againſt a Biſhop for a Diſturbance, and the
Plaintiff doth lạy in his Count the Difturbance to be after the Date of
the Writ, he ſhall be bårſed, and the Biſhop may collate when his
Time by Lapfe comes. Mich. 15 Fac. Brickhead v. the Archbiſhop
of York, Hobart 199;, And fo I ſuppoſe he may in all Çafes, when
the Plaintiff is barred by his Plea. "And Hobart puts another Cafe, in
which the Biſhop, tho" named in the Writ, may collate by Lapſe
Pendente lite, and his Clerk ſhall enjoy the Benefice, which I ſhall fet
down with his Reaſons in his own Words.
Caſes put by
Suppoſe (faith he) that I have Right to preſent to an Advowſon;
Juſtice How but I préſent not, nor am any way. diſturbed, but the Church renains
the Biſhop, void and open to me; but before the fix Months incurred, or before
Collation made by the Ordinary, I bring a Quare Impedit againft
may collate him, whether now the Ordinary be debarred of preſenting by Lapſe
by Lapſe hanging the Writ? I am of Opinșon that he is not debarred. And
Pendente lite, firſt, it were a Caſe full of Miſchief, that the Ordinary, bearing hinn-
felf never fo 'juſtly and ſincerely, ſhould againſt Law and Reaſon be
ſubject to cauſeleſs Actions and Charges, and defrauded of his due
Lapfe, and the Church kept void, Eccleſia viduata, by the Fraud of
the Patron, by, a fradulent Action as long as he liſt. For if he brouglit
no Action, the Lapſe ſhould run, and now by bringing of a feigned A-
&tion he ſhall ſtop the Lapſe in the Ordinary, and by Conſequence, it
will not come to the Metropolitan, nor to the King But to examine
the Reaſon and Authorities;
4
Can
Writ.
.
tho' named
Soch
1
Chap. XXIV. The Complete Incumbent.
259
Co.
nicit,
Ne difturbs
pas .
Can there be any Thing more unreaſonable, than that a Man fhould wait abated.
make Benefit of an unjuſt Suit, as in this caſe the Plaintiff ſhould; or
be puniſhed doing nothing amiſs or againſt his Office, as the Defendant Unreaſona-
ſhould ? But you will ſay to me, it is an Effect of Law, and Executio ble Puniſh-
juris non habet injuriam; for when the Biſhop comes in, he is charg-
ed by the Declaration with the Diſturbance, which if he doth not a-
void, he ſhall be taken as a Diſturber, and then indeed he cannot col-
late, or his Collatee ſhall be removed; therefore when he doth
appear
he doth but caſt an Eſſoin, and tho' that do not make him a Diſtur-
ber to maintain the Writ, becauſe it is after the Writ, yet it faſteneth
upon him the Charge of the Diſturbance laid in the Declaration, ſo
that he ſhall not be received after that to plead Ne diſturba pas, or
the ordinary Plea which amounts to as much ; for that Plea pretend-
ing Innocency, muſt (as all other the like Pleas) be offered the firſt
Day upon the Appearance, for Delay makes him nocent, and ſo is
oppofitum in objekto. Then again, if the Ordinary plead his own Plea Oppofitum in
objetto.
of Acquittal, amounting to Ne diſturba pas, the plaintiff may pray a
Writ to the Biſhop, and ſo renove his Clerk, becauſe he comes in
hanging the Writ, and thus it is a Dilemma made by Law, and not by
Fraud of the Party; and the Rule in the Regiſter, fol. 31, is fo, That
if the Dioceſan be named Defendant in the Quare Impedit, he ſhall
never preſent by Lapfe.
To this I anſwer, ſays he, That if the Biſhop do not plead accord- Reſponse
ing to his Innocency, that the Proceedings ſhall be againſt him, and the As to Ne
difturba.
Conſequence of it as againſt a Diſturber; but if he plead' that he
did not diſturb, which is true, it ſhall be taken according to the
Cafe, that he did not diſturb before the Action brought, neither un-
lawfully, nor by lawful Collation ; but it can never be underſtood to
deny or renounce any actual Collation ſince, for if he ſhould plead that,
it were in vain, and to no purpoſe, as hath been ſaid. Now then if
he did not diſturb before the Writ purchaſed, and therefore hath not
deſpoiled himſelf of his Right of Collation in its due Time, and then
collates by Lapfe lawfully when his Time comes, when the Pan
tron hath wilfully and without his Fault ſurceaſed his Time, and
then pleads that he claims nothing but as Ordinary, &c. without
mentioning his Collation hanging the Writ, becauſe it is impertinent
(as it hath been ſaid :) neither indeed (ſays he) do I ſee how he can be
received to plead it, no not by the way of ſaving it by Proteſtation, as
upon Attornment to fave Privilege of Wafte. But certainly it is not
neceſſary, tho' upon ſuch Plea the Plaintiff may have a Writ to the
Biſhop, he may perhaps be compellable to admit the Clerk of the
Plaintiff in Obedience to the Writ; but yet it ſhall not work a
Removal of the Biſhop's Clerk, but he ſhall retain the Benefice as
having the better Right, like unto the Caſe and Reaſon where A.
brings a Quare Impedit againſt B. and hanging the Suit a Stranger
preſents, and his Clerk is inſtituted, &c. And then A. hath a Judg-
ment againſt B. and a Writ to the Biſhop, Non obſtante Reclamatione
B. the Biſhop ſhall receive the Clerk of A. without diſputing of the
Right of A. and the Stranger ; but yet if the Stranger háth the better
Right to the Patronage, his Clerk ſhall retain the Benefice, and ſo e
converſo.
Note, That the Writ to the Biſhop in this Cafe ſhall not be with Non obftante
tlie Claufe of Non obſtante Reclamatione Epiſcopi; for he makes no egao
Claim, as in the Caſe of Diſturber, who ſets up a Title and Pretence
of
ز
Reolamationen
Y y a
tronatus.
12
Diſturbance.
watus.
. I , in ,
260 The Clergy-Man's Law: Or, Chap. XXIV.
Elure Pas of Right. Beſides, the Ordinary's Plea' neither makes the Patron's Ti-
tle better, nor his own worfe, than are proper to them both, and as
they were before, neither doth be thereby diſclaim any Right tre hath
as Ordinary.
Writ againſt But now I put another Caſe (faýs hię :) If my Church become void,
the Ditur- and I preſent to the Biſhop, and fo alſo doth another Perſon that hath
ber only
no Right, in which Cafe the Biſhop, tho he may receive at his Peri!,
yet doth (as he may lawfully, do) refuſe to receive either till the Right
be enquired, without doing himſelf any Act of Diſturbance. In this
Caſe, if the true Patron doth bring his Quare Impedit againſt the Di-
Collation by ſturber only, then the Biſhop may collate by Lapſe without Queſtion;
Lapſe.
but in that Caſe, if the true Patron name the Biſhop a Defendant
Aliter, if Bi-
ſhop named. together with the Diſturbér, and then the Biſhop comes in and pleads,
that he claims nothing but as Ordinary, &c. and the Plaintiff
hath an Award of a Writ to the Biſhop, with a Ceſſet Executio,
&c. and then recovers againſt the Diſturber, and the Biſhop in the
mean Time collates by Lapfe, in that Caſe perhaps the Biſhop's
Clerk may be removed, for it differs much from the former Cafe ;
Upon a true for here was a true and not a feigned Diſturbance; whereunto the Or-
dinary gave Way ſo far, that the Plaintiff could not get his Clerk
received, but was driven to his Quare Impedit : For if he had proceed-
Jure Patro- ed to his Fure Patronatụs without. Quare Impedit, and the Time
had incurred, the Biſhop might have preſented to Lapſe remedileſs :
And therefore ſince he did his Endeavour to preſent, and was inter-
rupted by a Stranger, and the Ordinary alſo refuſed his Clerk, for
which he had rather have an Excuſe than a Juſtification, and now
both being made Defendants, and the Plaintiff's Title is approved a-
gainſt them both, as if it had been ſo from the Beginning; it ſhould
Biſhop not to be hard that the Biſhop ſhould make Advantage of his Refuſal, which
take Advan- now appears to have been againſt Right, and the Party to the Suit.
And there is alſo this Note made in the Margin of the Book, viz.
That it is not ſo much the Preſentation of the Diſturber as the Biſhop's
Refuſal of the Patron's Clerk that preſents, which entitles him to his
Quare Impedit. And therefore it is enough for a Bifhop to eſcape the
Charge of a Diſturber, and not alſo to make Advantage of a Lapſe
cauſed by himſelf. Mich. 15 Jac. Brickhead v. the Archbifhop of
York, Hobart 200, 201.
But as to this latter Cafe put by Hobart, I cannot but think that
the Biſhop ought to have the Turn by Lapfe, altho' that he be na-
med in the Writ,notwithſtanding he did admit and inſtitute the Clerk
of the plaintiff after the Church was become litigious, that is, if
he was not a Diſturber by any other Act.
Quere, If in
For firſt it is granted, that in ſuch Cafe it is the Biſhop's Duty to
the laſt Cafe refufe both Clerks until the Right be determined. Alſo it is granted,
the Biſhop that the Biſhop is not bound of Office to enquire of the Right by a-
ought to
warding a Fure Patronatus, but at the Prayer of the Party (which !
ſuppoſe not to be made,) ſo that the Biſhop before that he is named
Lapſe.
in the Writ is altogether as Innocent, as if no Preſentment had been
made to him before the Writ was brought. Thirdly, It is granted,
that if the Biſhop be no Diſturber, he ſhall have the Benefit of a
Lapſe, if it falls. Fourthly, It is granted, that in this Cafe, if the
Biſhop be not named in the Writ, he may collate at the End of fix
a Party in the Writ ſhould make him a Diſturber that was none be-
fore,
fage, c.
1
have the
Turn by
2
tronatus.
:
made ſhall falten a Wrong upon.
Chap. XXIV. The Complete Incumbent. 261
fore, more than the Bringing the: Action before any Preferitment was Jure Pas
a the Bifhop who is named therein.
And I ſuppoſe that the Biſhop's . Pleay.. that he claims nothing but as
Ordinary, cannot be conſtrued to diſclaim his Right as Ordinary, viz.
his Lapſe when it falls to him, ſo that his Collatee may not defend
himſelf againſt him whom perhaps the Biſhop may be forced to admit
upon him; and with this, Hobart accords in the former Cafe, and
why then may it not be as well allowed in the latter ?
But Hobart faith, that the Caſes differ : Firſt, In that in the latter A Difference
Caſe there is not a feigned but a real Diſturbance, whereunto the Or- in the Caſes.
dinary gave Way ſo far that the Patron could not get his Clerk re-
ceived. To which I anſwer, That 'tis true, here is a real Diſtur-
bance, but the Biſhop makes it not, neither doth he further give Way
to it than by Law he is bound to do, neither doth the Biſhop by fuf-
pending any Admiſſion hinder the Patron's Clerk from being admit-
ted; for the Biſhop may be required to a Jure Patronatus, wbich if
he doth refuſe he may be ſued, and maintained to be a Diſturbery and
ſhall not have the Advantage of Laple. And tho it be ſaid by Ho-
vart, that if the Patron doth proceed to a Jure Patronatus, and the Fure Patron
Time doth incur, the Biſhop will collate remedileſs. I anſwer, If the natus ought
Time doth incur thro' the Biſhop's Fault by delaying, he feems to quired.
be a Diſturber, even as if he had refufed to award the Jure Patrona-
tus. And if the Patron (who hatli fix Months allowed him in which
he may prefent) doth not preſent fo feafonably that he may have the
Delay
Advantage which the Law doth give him by the Jure Patronatus,
it is his own Fault, and he is no more to be thought worthy of Relief
by this Device of naming the Biſhop in the Writ, than if he thould
fufpend preſenting until ſuch Time that the ſix Months are fo near
at an End, that the Biſhop hath not Time to examine his Clerk be-
fore they paſs, in which Caſe the Biſhop may juſtify his collating by
Lapſe. So that the Patron is rrot without his Remedy whereby he
may fave his Intereſt, unlefs it be thro' his own Neglect, altho he
ſhould not bring his Ojtare Impedit firft ; for if he be not ſatisfied with
the Verdict given upon an Enquiry by a Jure Patronatus, upon which Quare impe-
his Adverſary's Clerk is admitted, which prevents a Lapſe, he may Pure Petro
have afterwards a Quare Impedit, and remove fuch Clerk and have natus.
his Preſentment. Beſides, the Patron is in as good a Cafe now, if the
Naming of the Biſhop in the Writ will not hinder the Lapſe, as Pa-
trons were before fuch Courſe was in Practice. And Jenkins faith,
That at this Time, viz. in Edward VII'th Time, Biſhops were rare:
ly made Parties in Quare Impedits, in Reverence of their Perſons.
Cent. 5. Cafe 36. p. 22. And that the Practice of making them Par-
ties is not ancient, appears by the Statute of Weft. 2. cap. 5; made
the Thirteenth Year of Edward the Firſt ; by which it is Enacted,
That in Wirits of Quare Impedit and Darrein Preſentment, Da-
mages ſhall be awarded ; that is, to wit, if the Time of fir
Damages
Months pafs by the Diffurbance of any, ſo that the Bllop da
confer to the Church, and the very patron 'lofeth 'his Pjelenta-
tion fox that Time, Damages thall be awarded for two Bears
Ualue of the Church. And if the fir months be not palled, but the
Preſentment be deraigned within the ſaid Time, then Damages that!
be awarded to the half year's Walte of the Church.
Patron's
1
a warded
ire
Now
262
The Clergy-Man's Law, Or: Chap. XXIV.
Benefit of
thc Loſs.
Duare 31s Now if ſuch Practice had been then known, or had been thought
pedit, the
fufficient to have prevented the Biſhop from having the Benefit of a
writ, c.
Lapfe, in caſe the Preſentment was not recovered within the fix
Naming the Months, why ſhould two Years Value of the Church be given to re-
Writ to pre- compence the Loſs of the 'Turn by Lapſe, which would not be but
vent a Lapſe, only through the Patron's Neglect to name the Biſhop, if that would
Poe ancient ſerve to prevent him ? For if that the putting the Biſhop's Name in
the Writ would hinder the Biſhop of Lapſe, the Parliament's giving
of two Years Value of the Church as Damages was altogether uſeleſs
and vain, and little Reaſon or Need could there be to inſert that
Clauſe in the Statute that gives the two Years Value in Damages, if
this Practice was then known, or ſuppoſed to have that Effect in Law
that now it is taken and ſuppoſed to have, viz. that naming the Biſhop
in the Writ will hinder the Loſs of the Preſentment by Lapſe, and
the Benefit of the double Value of the Church is thereby waved, as
double Va- it were, by the Plaintiff. If it be faid that the Law was anciently fo,
but not the Practice, in Reverence to the Perfons of Biſhops : I reply,
That this ſpeaks that all Patrons when their Church became litigious
did in thoſe Days, viz. before the Statute, and at that Time, loſe
their Preſentments, and only becauſe they would not make Biſhops
Parties in Quare Iimpedits out of Reverence to them; and that they
ſhould ſo do, is as incredible as may be, eſpecially before this Statute
for Damages was made, by which the Miſchief of loſing the Turn
To repair by Lapſe is repaired. And with this Opinion the Author of the Expo-
ſition of the Terms of Law doth agree, where he faith upon the
Term Quare Impedit. If the Plea be depending between two Par-
ties, and be not diſcuſſed within fix Months, then the Biſhop may pre-
fent by Lapſe, and he that hath Right to preſent may recover his Da-
mages
, as appeareth by the Statute of Weſt. 2. c. s. And the Arch-
biſhop of Canterbury putting this Cafe to Frowick Chief Juſtice in
theſe Words, Whether he that hath nothing offended in the Law of
the Land ſhall be puniſhed, or compelled to do a Thing in Deroga-
tion of his own Right and Liberty, as he may that is Party to a
Wrong? It is ſaid by the Reporter Keilway, it ſeems that he ought
to be at his Liberty to make Collation, notwithſtanding the Iſſue be
found for the Plaintiff; yet he fets down no Refolution by Frowick,
Quere. but a Quære. Mich. 20 H. 7. Keil. 57. b.
And I fee no Reaſon why it ſhould be thought hard againſt the Pa-
tron, if the Biſhop may not be hindred from collating by being made
a Party to the Writ, if the Preſentment be not recovered within the
fix Months, ſeeing that if he doth not recover within ſuch Time by
the Diſturbance of any, ſo that the Biſhop doth confer to the Church,
and the very Patron loſeth his Preſentation, as the Words of the Sta-
tute are, the Patron ſhall have two Years Value of the Church.
And in 'Truth, it is much better for Patrons if the Naming of the
Biſhops in the Writs doth not hinder a Lapſe, or if it doth hinder,
that they do not name them in the Caſe put, for thereby they loſe in
Damages ſo niuch as would go far at leaſt in the repaying them
the Expences of a tedious and coſtly Suit. And then allo Diſturbers
of Patrons and Law-Suits thereupon would not be ſo frequently heard
prevent Law of, nor Churches be kept void, when the Right of preſenting is que-
Suits, @goc. ſtioned for ſome Years, as upon the Suppoſition that the Naming the
Biſhop in the Writ will in ſuch Cafe ſtop him from collating, they
nccds muſt be; to avoid which, by the Statute of Weft. 2. 6. 5.
the
Par-
Value is for
che Patron's
Advantage.
And would
2
Chap. XXIV. The Complete Incimbent:
263
**
jos
Parliament did not take away, but ſeenis to ſuppoſe the Biſhop's Power Quare Jmé
of collating, if the Recovery was not within the fix Months, but gave eurit, etc.
Damages to the Patron for the Lofs:
To all this I may add that I riever found any Cafe in which it A common
hath been judicially determined, that to make the Biſhop a Defendant received. O.
pinion.
in a Qzare Inz pedit when the Church is litigious, doth obſtruct his
Title to collate ; yet becauſe ſome have been of that. Opinion; as
Hobart before, and 2 Crokie 93. Mich. 3 Fac. in Lancaſter and Lowe's
Cafe, and Jenkins Cent. 1. Cafe: 74. And becauſe Bishops in ſuch
Caſe having cxecuted the Writs of them that have recovered, and
their Incumbents have fet: down by it, fo it is even commonly re-
ceived, that the Biſhop's Collatee is actually removed by the Recep-
tion of the Patron's Clerk. And in the 49 E. 3. 15.d, 'tis there
faid, where the Biſhop is found to be a Diſturber he ſhall never have
Advantage of Lapſe; which doth imply, that barely making him a
Defendant without proving him guilty of fome Diſturbance will not Diſturbance
prevent it, for the Biſhop was a Defendant in that Cafe of
49
to be proved.
E. 3.
And in the 17 E. 3. 71, there is an Opinion which is faid to be held
by fome, that if in a Quare Impedit the Plaintiff was eſfoined, and
did not after that recover till after the ſix Months were paſſed, and
the Biſhop had preſented; that he ſhould recover only the half Year's
Value, by reafon he had delayed his Recovery himſelf by being ef-
foined; but this Opinion is there denied, and it is holder, that the Eſfoins.
Plaintiff ſhall not ſuffer for uſing an Effoin, but may recover his two
Years Value notwithſtanding : This Cafe alfo fhews, that the Practice
of making the Biſhop a Party was not then known, or at leaft uſed;
for 'tis taken for granted, that after ſix Months the Bifhop may pre-
fent; but if making him' Party would prevent bis Preſentation accord- may not
inig to the Opinion there recited, the plaintiff in no Cafe ought to re- Plaintiff
cover the two Years Value, for it would be his Fault not, to make ought not to
recover is
the Biſhop a Party to prevent it.
That a Writ nray not abate, not only proper Perfons muſt be named Writs to be
therein, but the Writ muſt be brought in a proper Place ; for 'tis brought in a
ſaid, that Writs of Quare Impedit and Quare Incuinbravit ſhall be
always brought where the Church is. 38 H. 6. 14. vide 4 Ed.:3. 9,
otherwiſe it is in the King's Cafe. And ſo for an Advowſon in Wales, Wales.
the Writ fhall be brought in the next Engliſh County, for they
cannot award a Writ to the Biſhop, 11 H. 6. 3, and Judgnient in ſuch
Cafe ſhall be given in the Action at the Alizes whère 'tis tried, and
Deceit lies as upon a Judgment had in this Action upon Default, if no
Summons was made: Brownlow and Gouldsborough 1 Part 160. And
ſo 'tis faid, that the Writ may not be brought before the Juſtices of
the Grand Seffions. Hill. 9 Car. B. R. Cort v. the Biſhop of $:. Da-
vids. Oxvenz and Pritchard. I Croke 341, and 348. But : Vaughan
Chief Juſtice makes a Difference between Churches in LordAhips, Difference of
Marchers of Wales and Churches within the ancient Shires, or of the Churches in
Principality of Wales. In the firſt Cafe, he agrees the Law to be,
that for ſuch Churches the Quare Impedit was to be brought in the
next English County, but of Churches of the ancient Shires, or of the
Principality, they were to be brought in Wales, and that the King's
Juſticiar there had Power within the County where he was Juſticiar,
to write to the Biſhops, which the Lords Marchers could not do.
Vaughan 410, 411.
If Bifhop
Value.
1
ز
proper
Wales.
But
264
The Clergy-Man's Law: Or, Chap. XXIV.
Quare non
Domifit.
Prebend.
of next A.
voidance.
Other Cauſes
of Abate-
ment.
But a Quare non admiſit ſhall be brought in the County where
the Refuſal was, and not in the County where the Church is, becauſe
Quare non ad- Damages are only to be recovered, and the Refuſal is the Beginning
mifos, where of the Wrong, and the Ground of the Action. 38 H. 6. 14 F. N. 8.
brought.
47. f. And a Quare Impedit of a Prebend ſhall be brought in the
County where the Cathedral Church is, and not in the County where
thc Body of the Prebend is, becauſe the Plaintiff's Clerk is to be in-
ſtituted and inſtalled in the Cathedral. 21 Ed. 3. 5. 2 Eliz. Dyer
194, but 43 Ed. 3. fol. 1. 34. 15 Ed. 3. B. 325, ſeem contrary. Vide
27 Ed. 3. 37. And ſo the Law is well explained in a Cafe in which
there were different Opinions in our Books, (faith Coke) Mich. 26 and
Upon Grant 27 Eliz. Bulwer's Cafe. 7 Croke 3. And if à Grant be made of a next
Avoidance in one County, and the Church doth lie in another Coun-
ty, (by Fenner) the Trial may be either where the Grant was made,
or where the Church is. Williams, Fenner and Coke clear of Opi-
nion, that the Trial where the Church lay was good, and the Iffue
well tried, to which Yelvertozz at length aſſented, and ſo the former
Judgment was affirmed. Mich. 8 Jac. B. R. Biſhop of London and
Baldwin's Caſe. v. Drew. I Bulſtr. 47. And Note, That ſuch Writs
cannot be brought within any Liberty, becauſe they that hold Plea
in a Franchiſe cannot award a Writ to the Biſhop. 11 H. 6. 3.
Though the Writ be well brought, yet it may abate upon other
Accounts; for if the Plaintiff be made a Knight hanging the Writ, it
is an Abatement of the Writ. Paſch. 40 Eliz. Sir Hugh Portman's
Caſe. 7 Coke 27, and 6 Coke 10. b, becauſe he is at his Election, whe-
ther he will take this Degree or not. Jenkins Cent. 2. Caſe 85. But
Heir of an if the Son and Heir apparent of an Earl bring any Writ, and his Fa-
ther dies pendant the ſame, the Writ ſhall not abate, becauſe 'tis by
the Act of God. 31 H. 6. 29. So if one hath Right to preſent, and
being diſturbed doth die, and then his Executor doth bring his Writ
againſt the Diſturber, Quod perinittat ipſum Præſentare ad Ecclefiam
jam Vacantem, & ad Præſentationem teftatoris in vita fua, & nunc
in retardationem Executionis Teftamenti, the Writ will abate, becauſe
a Diſturbance to the Teſtator cannot be ſuppoſed as a new Matter in
retardationem executionis Teſtamenti, as where Goods were taken out
of the Poſſeſſion of the Teſtator, upon which the Executors brought
Treſpaſs, in retardationem Executionis Teftamenti, the Writ abated.
In preſenting But if the Executors be diſturbed in preſenting to a void Turn, they
may well fay in retardationem Executionis Teftamenti, and the Da-
mages they recover ſhall be Aſſets in their Hands. Trin. 31 Eliz.
C. B. Smallwood, &c. v. the Biſhop of Litchfield. i Leonard 205.
Onc Copar-
So when a Writ of Right of Advowſon was brought againſt Copar-
cencr dics.
ceners, one of them dying, it was adjudged without Argument that
the Writ ſhould abate, being a real Action; and the like Law is, if
they had been Jointenants, &c. Hill. 15 Car. B. R. the King v. Sir
John Dridon, &c. 1 Croke 511, 574. Yet Coke faith, that a Quare
Impedit well brought by divers, as Coparceners
, or Jointenants, &c.
ſhall not abate by the Death of one of them ; nor a Quare Impedit
brought by the Husband and Wife ſhall not abate by the Death of
the Wife, becauſe that otherwiſe the Plaintiff (if the ſix Months be
paſt) ſhall be without Remedy; for which he cites F. N. B. 35. b.
38 Éd. 3. 43. 37 H. 6. 11. 7 H. 4. 19. 14. H. 4. 12. 9 H. 6. 30, 37,
i H. 5. 1. 13. 17 Ed. 3. 11. 17 Ed. 3. 304.' Hall's Cafe. Paſch.
31 Eliz. C. B. 7 Coke 26, and ſo by Brownlow and Gouldsborough
I Part
Earl.
Executors
difturbed
to a void
Turn.
Wife dies.
4
1
Chap. XXIV. The Complete Incumbent.
265
:)
cener.
Suinmons
j
í Part 158. The ſame Law, if one of the Defendants doth die Dulare F.mg
pendant the Writ, for it abates not thereby. Brownlow and Gouldsboende in the
rough 1 Part 158. So if divers Coparceners do join in a Quare Impe-
dit, and one of them after the laſt Continuance doth releaſe all'A- One Defen-
Etions; Wrongs, &c. to the Incumbent concerning the Preſentment, Releafe by
this is no Abatement of the Writ, but Summons and Severance ſhall one Copar-
be awarded upon the Default of him that relcafes, and the other ſhall
be admitted to proceed alone, and the Defendants adjudged to anſwer. and Seve
Trin. 38 Eliz. Counteſs of Northumberland's Cafe. Moor 455. Roll's lance.
Abr. 2. 411, for it is not Reaſon that the Releaſe of one of them
(though it bars him that makes it) ſhould bar the reſt no more than
his Non-appearance; in which Cafe' he ſhall be alſo fummoned and fe-
vered, and the other ſhall proceed. Hill. 38 Eliz. Thomas Cecil,
William Cornwallis, and Elizabeth Danvers. v. Hall. &c. C. B. An-
derſon 2 Part 48, the ſame Caſe. 5 Coke 97, and in Moor 455, by
the Name of the Counteſs of Northumberland's Cafe. b. Vide 45.
Ed. 3. 10.
In like Manner, if a Quare Impedit be brought againſt the Patron Patron dies
and Incumbent, and the Patron doth die pendant the Writ, the Death pendente Brexi,
of the Patron ſhall not abate the Writ. 9 H. 6. 31. For there are and the In-
two Miſchiefs, one, if the Writ ſhall abate, the Diſturbance ſhall be cumbent.
unpuniſhed ; and although the Writ was well brought, yet the Plain-
tiff, and only by the Act of God, ſhall be without Remedy, becauſe
there wanteth a Diſturber : And the Miſchief on the other part is,
if the Writ ſhall not abate, but the plaintiff ſhall proceed to Judg-
ment and Execution, the very Patron ſhall be put out of Poffefſion
and foraſmuch as in the one Caſe, if the rightful Patron ſhall be out
of Poffeffion, he hath Remedy by a Writ of Right to recontinue the
Advowſon; and the other Cafe, if the Writ Mall abate, the Plaintiff
ſhall be without Remedy, which is the greater Miſchief, wherefore
the Writ ſhall ſtand good, and therewith agree. 7 H. 4. 26. b.
13 H. 8. 13. 9 H. 6. 57. 9 H. 6. 31, cited by Coke. Paſch. i Eliz.
C. B. 7 Coke 26. b.
But although it be granted that the Wriť doth not abate by the The Judg.
Death of the Patron pendant the Writ, yet when Judgment was given verſed in
againſt ſuch Patron after his Death, upon a Writ of Error brought by Error.
his Son, as Heir and Executor, with the Biſhop and Incumbent, who
were fevered, it is clearly held, that this was a manifeſt Error, viz.
the giving of Judgment againſt the Patron after his Death, and ſhall
cauſe the Judgment to be reverſed in all, for it cannot be reverſed
by Parcels. Paſch. 36 Eliz. B. R. Pipe. v. the Queen. 3 Croke 324.
I ſuppoſe the Reaſon of this Cafe to be, that altho' the Writ did not
abate by the Death of one Defendant in the Action, yet the Judgment againfta
Being given
is to be given againſt thoſe that are living only, and not againſt a dead dead Perſon.
Perſon.
So if the Incumbent hanging the Writ doth die, and the Diſturber Incumbene
doth preſent again, and then dies
, a Quare Impedit, or Aſlize of Dar- dies, and
rein Preſentment, according as the Cafe is, lies by Journies Accounts
preſents ar
upon the firſt Diſturbance. Brownlow and Gouldsborougb i Part 160. gain, and
F. N. B. 32. That is, the firſt Writ being abated without the De- dies.
fault of the Plaintiff, if he purchaſe a new Writ within a convenient
Time after the Abatement of the firſt Writ, it is ſaid to be by four-
nies Accounts, and then the ſecond Writ ſhall be as a Continuance New Writ,
of the firſt, and ſhall out the Defendant of any Plca which ariſes up- by Fournies
a
2 z
Aironn!s.
on
266
The Clergy-Man's Law: Or, Chap. XXIV.
n
Biſhop
Quare Fm: on Matter happening after the Date of the firſt Writ; and Fifteen
Chirit
, ac. Days have been held a convenient Time for the Purchaſe of the new
Writ. Terms of Law, Fournies Accounts, fol. 191. 6 Coke. 10. Spen-
cer's Cafe. But if the plaintiff be Nonfuit in a Quare Impedit after
Title made, this is a good Bar in another Quare Impedit. 22 H. 6.
45. 7 Coke 27. b. Alſo if a Writ be well brought againſt a
for refuſing a Clerk (for fo the Cafe ſeems to be) and pendant the
fame, the Archbishop after Admonition to the Biſhop to receive the
Clerk, or to appear, who doth neither, doth inſtitute the Clerk, and
cauſe him to be inducted, if upon an Endeavour in the Eccleſiaſtical
Court to void the Inſtitution and Induction a Prohibition be prayed; if
in the Surmiſe that the Church is full of his Preſentment, Mention
Where the be made of the Quare Impedit, it muſt abate by the Patron's own
Quare Impe- fhewing, and therefore the Surmiſe in ſuch Cafe muſt be, that the
benenit red Church is full of his Preſentment, without Mention of the quare Ini-
upon a Sur- pedit. Hutton's Caſe. Hobart 15. But Qulære, how this Caſe is to be
underſtood ? viz. How a Surmiſe to have a Prohibition can abate a
Quare Impedit depending? And Qyare, Whether in this caſe the Clerk
was admitted Pendente the Quare Impedit, or before the Writ was
brought? For though it be granted, that he whoſe Clerk is in the
Church, cannot afterwards bring his Quare Impedit, but it will be a-
batable if he do. 12 H. 4. 11 and 13 H. 4. 7. See 7 H. 6. 4. 34,
36. Yet if the Defendant doth plead, that the Plaintiff hath filled
the Church pendant the Writ, and the Plaintiff doth demur, which
is a Confeſſion thereof; yet the Writ ſhall not abate, but the plaintiff
ſhall have Judgment, becauſe the Defendant doth neither gainſay the
Diſturbance nor Right of the Patron. 11 R. 2. Quare Impedit 144.
F. N. B. 35. 7 H. 4. 34, 36. Hobart 194. But 4 E. 4. 18, is to
mire for a
Prohibition.
the contrary.
( H A P.
XXV.
Care that the
Declaration
be good.
Declarations in Quare Impedit, &c. in
what manner to be framed, and what
ought to be alledged therein.
T
HE Plaintiff having duly brought his Writ, muſt in the next
Place be careful that be doth ſufficiently entitle himſelf in his
Declaration, otherwiſe he will be barred. 31 H. 6. 15. For if the
Declaration be not good, altho' that the Plea in Bar be bad, the Plain-
tiff ſhall be barred, by Fones in Standen's Caſe, and the Univerſity of
Oxon, &c. Hill
. 20 Fac. C. B. Jones 18.
Firſt, therefore he muſt in his Declaration entitle himfelf to the
Advowſon, by alledging fome Preſentment in himſelf, or ſome other
whoſe Eſtate he hath, Brownlow and Gouldsborough 1 Part 160. For
if a Plaintiff doth only entitle himſelf to preſent by the Grant of a
next Avoidance, without alledging any Preſentment in himſelf, or
any other under whom he claims, by İVinch, Hutton and Hobart he
fhall
Title to the
Adyowfon
Chap. XXV. The Complete incumbent.
267
httare
itpedit.
in mutt nor
deferr in his
ſhall be burred. Mich. 22 Jac. B. R. Woodly v. the Bifhop of Exe- Derkirations
ter, Marwaring and Edwards. 2 Croke 691. Trin. 21 Car. 2. C. B.
The King v. Robert Biſhop of Horceſter. Vaughan 57. But what
Prefentment is to be alledged as fufficient to entitle the Plaintiff, is
declared before. Chap. 22 and 23.
If & common Perfon doth bring a Quare Inspedit, and accounts up- The Pfain-
on a Title to preſent, and that he is diſturbed, and the Defendant,
to counterplead the Plaintiff's Title, makes (as he muſt) a Ttile to own Title:
himſelf, and confeffes and avoids, or traverferh the Plaintiff's Title;
after this
, the Plaintif ſhall never defert his own Title, and by falling
upon, and controverting the Weaknefs only of the Defendant's Title,
ever recover or obtain a Writ to the Biſhop, tho' the Defendant's TÉ
tłe doth not appear to the Court to be ſufficient, for it by no means
follows that the plaintiff hath a good Title, becauſe it appears that the
Defendant hath not. Trin. 21 Car. 2. C. B. The King Vi Robert
Biſhop of Worceſter, Vaughan 98, and by Hobart in cott and Glover's
.
Cafe. Hobart 161. And if the King hath preſented by reafoss of
Lapſe, or the Temporalties of a Billiop in his Hands, Outlawry, doc.
And when the Church ſhall void again, brings a Qrate Impedit; and
counts that he was feiſed of the Advowfon as in Groſsis and prefented,
and then the true Patron ſhall confeſs his Preſentation, and avoid it by
Thewing upon what Account he prefented at à former Avoidance, as
only upon the Title of Lapfe, &c. the King ſhall not defert his Ti-
tle, and by fhewing the Weakneſs of the Defendant's Title obtaining
Judgnient for him ; yet it is agreed that there are Cafes in which the
King may defert his own Title, and not join Iſſue upon the Defen-
dant's Traverſing of his Title, or avoiding it, but traverſe the Title
made by the Defendant in his Bar, which is direaly taking a 'Traverfe But may take
upon a Traverſe, which regularly a common Perfon cannot do, nor I
think (faith Vaughan) in any Cafe, but where the firſt Traverſc ten verre
.
dred by the Defendant is not material to the Action brought. The
King v. Robert Biſhop of Worceſter. Vaughan 61,
But this Rule, that the plaintiff muſt alledge fome Preſentment in Where the
himſelf, or fome other from whom he claims, holds not always; for
if a Man at this Day doth by the King's Licence found a Parochial ledge Pré-
Church which ſhall be preſentable, and be diſturbed to prefent to it, fentment:
he ſhall have a Quare Impedit without alledging any Preſentment in
any othery and ſhall count upon the ſpecial Matter. Trin. 21 Cars 2:
C. B. The King v. Robert Biſhop of Worceſter. Paughan 57. And
when the Patron doth lay á Preſentment in his Count, it is not fufficia
ent for him to ſay that he did preſent thc laft Incumbent without
more, but that he was feifed in Fee and preſented, or elſe lay the Fee Seifed in Feci
Simple in ſome other, and then bring down the Advowſon to himſelf, and preſent,
either in Fee or fome other Eſtate, The Caſe of the King v. the Bi-
ed, Coco
ſhop of Worceſter. Vanghan 57. For the Plaintiff ought neceſſarily in
his Declaration to make mention what Eſtate he hath when he pres
fents. 8 H. 5. 4. 18 H. 6. 24. Allo where the Preſentation makes a
Right, there the plaintiff ought to declare that the Prefentation was
made Tempore pacis ; but if the plaintiff doth alledge another Right Tempoře pacis
Precedent to the Preſentation, and the Preſentation be alledged only
in Purſuance of that Right, as that the Advowſon is appendant to a
Manor of which he is ſeifcd, &c. there the Declaration is good, al-
tho' the Prefentation be not laid Tempore pacis. Hill
. 28 and 29 Car.
2. C. B. Strode verf. Biſhop of Bath and Wells, Sir George Horniers
&c. r Mod. Rep. 230, and 2 Mod. Rep. 185.
And
a Traverſe
upon a Tra-
Plaintiff
needs not alz.
Z. z 2
268
The Clergy-Man's Law: Or, Chap. XXV. .
Fee.
The Plaint
Marrs. in And altho' the Plaintiff hath formerly by the Prefentment which
Quare alm. he lays in himſelf or others, for this Title gained the Fee by Uſurpa-
pedit,
tion, yet he ſhall not be compelled to mention the Wrong, or that he
Uſurper not hath the Advowſon by Wrong, neither can he in this Caſe of an U-
mention the ſurper declare of any other Eſtate than of Fee, by Berkly and Jones
Wrong, but contra Bramſtone and Croke ; who held, that if a Man having no
any Eltare in Right to an Advowfon, doth preſent by Uſurpation, and his Clerk be
admitted, inſtituted, and inducted, and after Plenarty by fix Months
dies ; upon a Diſturbance he cannot declare that he was feiſed of the
Advowſon, as of an Advowfon in Groſs, and preſented, becauſe by the
Preſentment alone without Inſtitution, and Induction, no Right is gain-
ed, nor the Patron put out of Poſſeſſion ; but it is the Ordinary's Act
that makes the Uſurpation; and ſo if the Uſurpation be gained
by the Inſtitution, which is ſubſequent to the Preſentation, the Uſurper
in his Declaration cannot ſay that he was ſeiſed in Fee, and preſented,
which is a Precedent Act to the Uſurpation, which was by the Inſti-
tution, and the Fee only gained by Relation, which is a Fiction in
Law, and ſhall not be reſpected to do Wrong, as would be in this
Caſe. Hill. 14 Car. B. Ř. Harper v. the Bailiff and Burgeſſes of
Derby. Jones 427: Quære, for no Judgment was given, and fee there
Berkly's and Yone's Reaſons for their Opinion, which ſeem good.
Alſo the plaintiff muſt take care that his Plaint be not double, for
muſt not be if the Plaintiff doth alledge a Preſentment in himſelf only, or in caſe
he hath not preſented, in whoſe Eſtate he hath, this is a fufficient Ti-
tle in a Quare Impedit ; but if he doth alledge a Preſentment in both,
his Count is double, as appears by this
Caſe. B. Plaintiff in a Quare
Impedit counts that A. was feiſed in Fee of a Manor to which an
Advowfon was Appendant, and the Church voiding he preſented, and
that his Clerk was admitted, and inſtituted, and after that this Manor,
c. was given to the King by Act of Parliament, and after that the
King granted it to the plaintiff
, and that the Church voided by the
Death of the Clerk of A. who dies, that the plaintiff preſented ano-
ther Clerk, who was admitted; inſtituted, and inducted, and dies,
that the Church is now void, that the Plaintiff preſented, and that
the Defendant diſturbed him, and by all the Juſtices, this Count is
not double, for the Preſentment of A. is ſuperfluous, as being deſtroy-
ed by the faid Act of Parliament, and the Preſentment of the Plain-
Allegation tiff, is but the Execution of the Act of Parliament, and the Act of
of onc Pe- Parliament without any Preſentment is a good Title in a Quare In-
ſentment is
pedit ; but if the Act of Parliament had not been in the Cafe, the
Count had been double, by alledging the Preſentment, Admiſſion, and
Inſtitution of the Clerk of A. and of the Plaintiff's alſo; becauſe to
alledge one of them is fufficicnt. 16 H. 7. 8 Jenkins Cent. 4. Caſe 86.
See for this the Counteſs of Northumberland's Cafe. 5 Co. 98, 6. 33 H.
6. 12. 4 E. 4. 3. 11 E. 4. ro. 19 E. 4. 4. Where there appears a Diffe-
rence in Opinion concerning this Matier. Yet note, that tho a con-
mon Perſon counting upon two Preſentments, the Count ſhall be faid
double, and by Conſequence vicious, yet otherwiſe it is in the Cafc of
the King. 43 Ed. 3. 14. Br. Count.
If a Church hath by. Lapſe come to the Biſhop, who hath collated
Lapſe to the by ſuch 'Title, a common Perſon ought to make mention of it in his
Biſhop ought
Count, for that is his Title to the Preſentment. Mich. 14 El. 3 Leon.
18, becauſe the Collation by Lapſe is in the Right of the Patron,
and for his Turn; the Ordinary in this Caſe being a kind of Attorney
made
:
4
fufficient.
Where a
to be micn-
tioned,
1,
.
Chap. XXV. The Complete Incumbent.
269
and another
made by Law, to do that for the Patron which is ſuppoſed he would Narrs. in
do himſelf, if there was not fome Let; by Hobart, in Colt and Glo- Quare Zima
pedit, Egocio
ver's Cafe. Hobart 154. Alſo if the Ordinary hath collated by Lapſc,
becauſe the Patron having preſented one unfufficient Clerk, and upon
Notice of his Unſufficiency, and the Refuſal, did not preſent another,
and the Patron thereupon doth bring his Action, the Patron muſt ſet
forth in his Declaration the Day in which the Preſentment was made
to the Ordinary. Mich. 15 Eliz. C. B. 3 Leonard 47.
One Perfon hath the Right of preſenting to two Avoidances of a where one
Church, another to a third Avoidance, and upon a Diſturbance, the hath two
Declaration ſets forth, that one hath the Advowſon of two parts of Avoidances,
the Church, viz. to preſent to the faid Church at two Turns together, « Third.
and that another hath the Advowſon of a third Part of the Church,
to wit, to preſent to every third Turn, the Declaration is not good,
per Cur. for that it appears that one hath the entire Church for the
Time when he is to prefent ſole, and then, when he declares that one
had the entire Advowſon of two parts of the Church, viz. to preſent
to two Turns, it is repugnant in it felf, for by his own ſhewing, it is
to two Parts of the Advowſon, and not to two Parts of the Church,
for the Moiety or third Part of the Church is, where Párceņers, or A Moiety or
Jointenants preſent jointly, and every one hath a Part of the Church, third Part
Trin. 41 Eliz. Windſor v. Archbiſhop of Canterbury and Loveday, amongft Par-
&c. 3 Croke 668, or where there are two Advowſons in one Church,
for there every one hath a Part of the Church, and the Count muſt be
the Moiety, or third Part of the Church. Mich. 13 Jac. Windhanı v.
Biſhop of Norwich al. 1 Brownlow 165. But where two Churches
are united, and the Patrons agree to preſent, the one to two Turns,
the other to a third Turn; (as this Cafe was there either of them hath
the entire Church the Time he preſents. Trin. 41 Eliz. C. B.Windſor
v. the Archbiſhop of Canterbury. Loveday and Fletcher. 3 Croke 687,
688.
So if a Quare Impedit be brought, that the Biſhop permit the Plain- Writ claims
tiff to preſent to the Church of A. and the Declaration according to
the Cafc is, That whereas B. was feiſed of a Manor, to which the and the
Advowſon,
Advowſon of the ſaid Church, viz. to preſent to the fame very firſt Count only
Turn was Appendant, and that C. was feiſed of the Advowſon of the very firſt
ſaid Church, viz. to preſent to the fame every ſecond 'Turn; tho'
by the Writ the entire Advowſon is claimed, and by the Count, only
firſt Turn ; and altho' it be not alledged by the Plaintiff that he
ought to have the firſt 'Turn, yet it is good; per Cur. Becauſe when
the Church is void, and it appertains to him to preſent, he hath the
entire Advowſon ; but otherwiſe it is if there be two ſeveral Patrons,
and two ſeveral Incumbents of one Church, ſo that one Patron hath
a diſtinct and ſeparate Part of the 'Tythes for his Incumbent from the
other Patron, and his Incumbent, in which Cafe there are two Ad-
vowſons in one Church; for there the Count muſt be to the Moiety
of the Church, or the third Part thereof, as the Caſe requires. Mich.
13 Jac. Windham v. the Biſhop of Norwich, Brownlow and Goldsbp-
rough i Part 165. And if in this laſt Café one of the Patrons be-
ing diſturbed, doth fay in his Count, that he is feiſed de Advocatione
Medietatis Ecclefiæ, &c. it is ſufficient without ſetting forth the ſpe-
cial Matter in the Count. Trin. 10 Jac. Richard Smith's Cafe. To
the entire
Turn.
1
Coke 135:
С НАР.
270
The Clergy-Man's Law: Or, Chap. XXVI
Prorecs, a
in Quare
impedit)
Bot.
CHAP. XXVI. .
Of Proceſs and Pleas in Quare Impedit
and Darrein Preſentment, and what Pleas
are proper, and ought or may be pleaded
by the Ordinary, Patron and Incumbent
reſpectively; and of what Matters a Ju-
ry in Quare Impedit ought to enquire.
r
Attach-
ments and
ôf Proceſs
Thewed how theſe Writs are to be brought, and how the
in Quare Patron is to entitle himſelf in his Declaration, I am next to ſpeak
Impedit. of the Proceſs thereupon.
Summons, The Proceſs in this Action of Quare Impedit are Summons, At-
tachment, and Diſtreſs Peremptory. And the Sheriff muſt ſummon
Diftres the Defendant by good Summoners, and return their Names upon
the original Writ, and not return common Summoners, as John Doe
and Richard Roe; for a Writ of Deceit lieth if the Summons were
not made indeed: But if the King be Plaintiff
, and the Defendant be
not ſummoned, nor attached, nor diſtrained, and the King hath Judg-
ment by Default, no Writ of Deceit lieth. Brownlow and Gouldsbo-
rough i Part 158, 159, 160.
The Writs thereupon are returnable from Fifteen Days to Fifteen
from Fifteen Days, according as it is Enacted, In Allizes of Darrein Preſentment,
Days to Fif
teen Days.
and in a plea of Quare-Impedit of Churches vacant, Days thall be
given from Fifteen to Fifteen, 02 from Three weeks to Three
Weeks, as the Place Hall happen to be near 02 far. and in a plea of
Quare Impedit, if the Diffurber come not at the firſt Day that be is
Ammoned, noz caft no eroin, then be thall be attached at another
Day, at which Day if he come not, noj caſt no efloin, be thall be die
Atrained by the great Dittreſs above givell, and if he come not theli, by
his Default, a Wirit fhall go to the Biſhop of the Camé Place, that
the Claim of the Diſturber for that Cime ſhall not be prejudicial to the
Plaintiff, Caving to the Diffurber bis u ight at another Time when be
will me therefore. Stat. 52 H. 3. cap. 1 2.
Returnable
Where fove.
ral Effoins
pearances,
Egor.
If a Quare Impedir be brought againſt divers, they ſhall have ſeveral
Eſoins before Appearance; if the firſt Man be eſfoined it muſt be ad-
before Ap- journed for Fifteen Days, and Idem dies ſhall be given to the reſt ; but
at that Day another of the Defendants may be eſfoined for Fifteen
Days, and an Idem dies given to the reſt, and ſo of all the reſt of the
Defendants. And if the Defendant take not bis Eroin upon the Sum-
mons, he may take it upon the Attachment, and if the plaintiff doti
not adjourn the Elloin, he ſhall be Nonſuit. And Note, That the
Defendants are not bound to appear after that they have had their El-
foins; until the Return of their Diſtreſs, for an Elloin is no Appearance
Default a. becauſe it may be caſt by a Stranger. If the Defendant doth come at
the Grand Diſtreſs icturned, and pleads to Iſſue, and after doth make
ing
ter Plead-
I:
Di
Chap. XXVI. The Complete Incumbent.
271
1
Quare
and one
makes De-
on, C:
Darrein Pre-
Default, the Writ ſhall be awarded to the Biſhop without taking the praceff, &r
Inqueſt. Roll's Abr. 1 Part 587.
muredit..
If the Original Writ be brought againſt three; one may appear be-
fore his Companions, and Proceſs ſhall be continued until Diſtreſs be Writ againſt
made againſt the reſt, and the Plaintiff in the mean Time ſhall declare one appears.
againſt him that appears with a fimul cum, and if he that
appears
doth plead non impedivit, the Writ ſhall be awarded to the Biſhop ; Non impedi-
but there ſhall be a Ceſet Executio until the Plea between the Plain- sito
tiff and the other Defendants be determined. Brownlow and Gouldsba-
rough 1 Part 158, 159.
If a Quare Impedit be brought againſt two; and one of them doth Againſt two;
make Default at the grand Diſtreſs, and the other doth plead in Bar, a
Writ to the Biſhop ſhall be awarded for the Plaintiff by the Statute of fault, &.c.
Malebridge without Title made; and if thé Bar pleaded by the other
Defendant be found for him, he alſo ſhall have a Writ to the Biſhop
and the Clerks of theſe two, upon theſe two Writs being admitted, Clerks to
inſtituted and inducted, ſhall try their Right in an Affize, or Treſpaſs. try their
Right.
Jenkins Cent. 2. Cafe 85. 2 Inſtit. 124, 125,
In this Writ the Defendant Thall neither have his Age, nor a Pro- No Prote&ti-
tection, nor an Effoin as in the King's Service to avoid a Lapſe.
In an Affize of Darrein Preſentment, if the Writ be brought in
Middleſex, at the Return of the Writ the Aſſize ſhall be there ar- Jeniment
.
raigned by the Serjeants at the Bar in French, and the Tenant ſhall
be demanded; and if the Tenant doth not appear when he is de
manded, a Reſummons ſhall be awarded ; and if upon the Re- summons
ſummons the Tenant ſhall not appear, the Affize ſhall be taken againſt and Relu.z.
him by Default ; and if the Tenant doth appear, he may demand mons.
Oyer of the Writ and Return, and the Writ ſhall be read him, and @yer.
the Return thereof, and the Jury ſhall have the View, and the Te-
nant may take Exception either to the Writ or to the Return, if there
be Cauſe; and if there be no Cauſe, he may pray a Day to plead; Day to
and if the Court doth give a Day, the Jurors that appear ſhall be dif- pleado
charged of their Attendance, and ought to appear upon a new Proceſs
to be awarded againſt them ; and fix of the Jury ought to have the
View of the Church, to the Intent that they may put the plaintiff in- View.
to Poſſeſſion if he doth recover; and the Judgment of this Alize is to
Judgment.
recover the Preſentation and Damages. The Proceſs in this Writ is
Summons and Reſummons againſt the Tenant, and Summons, Haber
as Corpus, and Diſtreſs againſt the Jury, and the Proceſs ſhall be re-
turned from Fifteen Days to Fifteen Days, and no Elloin or Vouch- No Eroin,
er lieth after a Refummons. Brownlow and Gouldsborough; 1 Part &c
. .
160.
The Defendants, viz. The Biſhop, Patron and Incumbent appear-
ing, they are to put in their Plea, or Anſwer to the Declaration of
the Plaintiff
, and if their Plea be fufficient, the Plaintiff ſhall be bar- Plea fuſici-
red, altho' his Declaration be alſo good; by Jones in Standen's Caſe, ent, Plaintiff
c. Fones 18. And firſt, if the Biſhop be made a Defendant upon
any good Reaſon, it is becauſe he is a real Diſturber, altho he is for
the moſt Part put into the Writ upon the Opinion that thereby he is
hindred from collating pendente lite, (the Church being void and liti-
gious) upon the Account of Lapſe. But ſee as to this; Chap. 24. But Biſhop's
whether the Biſhop be a Diſturber or not, if he be made a Defendant; Plea.
and hath no Right to collate when the Writ was brought, it is uſual
for him to plead that he claims nothing but as Ordinary, and to
des
barred.
2
272
The Clergy-Man's Law : Or, Chap. XXVI.
111 luare
3711701, dita.
fet Executio.
Continuan-
CCS.
fecited as a
Diſturber.
P:0:01$, &c. demand Judgment if without ſpecial Diſturbance, &c. And if the
Sec be void, fo that the Archbiihop, or other Guardian of the Spiri-
tualities, hath for the Time the Right of Admiſſion, Úc. the Right of
Archbiſhop's Collating not being in him, he is wont in ſuch Cafe to plead, that he
claims nothing but as Metropolitan, and to demand Judgment if, Go.
And thereupon the Patron is wont to pray a Writ to the Biſhop againſt
Brezie Epifco- the Ordinary, with a Ceſet Executio quouſque the Plea between the
po with a cer
Plaintiff and the other Defendant is determined. Mich. 3 Jac. B. R.
Boſwell's Cafe, 6 Coke 48.. Jenkins Cent. I. Caſe 99. And if Judg-
ment be given for the Plaintiff, that a Writ ſhall go for the Plaintiff
againſt the Biſhop or Guardian of the Spiritualities, or againſt Biſhop
and Archbiſhop, if both be made Parties in the Writ, without a Cellet
Executio entred, until other Matters had been tried, it is no Error;
nor will it abate the Writ, unleſs that Execution had been fued out
before Judgment had been given againſt the reſt. Pafch. 14 Jac. B.
R. Grange v. Dering, 3 Bulftrode 175. See Jenkins Cent. 8. Caſe 36.
and in Roll's 1 Rep. 363, and 397. Roll's Abr. 1. 772. When the Bi-
ſhop pleading that he claims nothing but as Ordinary, the Patron
hath Judgment againſt him, and this doth continue divers Terms with-
out any Continuances entred, yet as Glin ſaid in the Caſe of Loe and
Lancaſter, it was ruled that it was good in Cobb's Cafe. v. John Hey-
Biſhop, pro- den, Rolls i Rep. p. 31. But the Plaintiff
, if he pleaſeth, need not
pray a Writ to the Biſhop, but may maintain him to be a Diſturber,
and proſecute his Action againſt him to a final Judgment, not with-
ſtanding the Biſhop doth claim nothing but as Ordinary in his Plea.
If he doth take his Writ as aforeſaid to the Biſhop, it ſhall be to
the fame Biſhop; for it doth not appear to the Court that he was a
Diſturber, neither ſhall the Biſhop be amerced, but the plaintiff pro
If the Plain- falſo Clamore: If the Plaintiff doth not accept the Biſhop's Reddition,
tiff will not but will chuſe to make a full and final Recovery againſt him, (which
Bishop's
is not adviſable in any Cafe) then doth he (as in all other Caſes of
Reddition, Election) forſake, and loſe the Benefit of the former, and ſtands to
the Hazard either of a total Recovery, or a total Bar; ſo that if he
doth aſſign a ſpecial Diſturbance, and it be tried againſt him, he is
to be barred, by Hobart. Mich. 15. Jac. Brickhead v. the Archbiſhop
Biſhop where of York, Hobart 198. And if the plaintiff be at Iſſue with any of
to be excu- the other Diſturbers, and the Title is found for the Plaintiff, the En-
queſt ſhall not paſs betwixt the Plaintift and the Biſhop who refuſed,
becauſe the Church was litigious, altho' that the iſſue upon the Di-
ſturbance be joined betwixt them, for the Diſturbance is found in an-
other, and the Church being litigious ſhall excuſe the Biſhop. Jen-
kins Cent. I. Cafe 99.
If the Biſhop be fued as a Diſturber, for that he hath admitted and
Mop, cannot inſtituted a Clerk upon the Preſentment of another Patron, (which is
the
not adviſable for him to do) he may plead the general Plea, that he
claims nothing but as Ordinary, C. and demand Judgment if, &c.
And indeed, in ſuch Caſe the Biſhop cannot well plead any other Plea;
for having given Inſtitution upon another's Prefentment, he cannot
plead the Patron's 'Title upon whoſe Pretentment he hath given Inſti-
tution, to counterplcad the Title of the Plaintiff to the Patronage,
although the Incumbent may, by Hobart, and that upon theſe Rea-
fons;
Firſt, Becauſe the Ordinary hath nothing to do with the Patronage,
neither in Intereſt nor Dependancy. . Secondly, Becauſe he hath no-
thing
accept the
Sorc.
ſed.
Where Bi-
Parron's
Title.
The Rca-
ſons.
2
Chap. XXVI. The Complete Incumbent.
273
in wuare
Courſe.
thing to do with the Church as to the Fruits of it, and if he, having pleas. esco
collated by Lapſe before the Statute of 25 Ed. 3. 7, could not by the
Jmpedits.
common Law have pleaded the Title of the Patronage to maintain
it, as by the ſaid Statute appears, much leſs could he do it before the
Lapſe incurred. Thirdly, Becauſe the Law hath provided for him
(if he doth contain himſelf within the Bounds of an Ordinary) ſufficient
Means to ſave himſelf from making himſelf a Diſturber, and hath
Pleas to expreſs and deduce the ſame. Sir William Elvis vi the Arch-
biſhop of York, &c. Paſch. 17 Jac. Hob. 317. Jenkins Cent. 1. Caſe 47.
If the Ordinary doth plead that he claims nothing but as Ordina- Patron's beſt
ry, the Patron had beſt pray a Writ to the Biſhop with a Ceſet Exe-
cutio quouſque; &c. eſpecially if the Biſhop had not refuſed his Clerk
before the Church was litigious; or admitted his Adverſary's Clerk af-
ter a Jure Patronatus prayed; or contrary to the Verdict given there-
upon ; for if he will maintain him a Diſturber when the Church is
full, it concerns him to make it appear that he was fo, or he will be
barred, as hath been ſaid before in this Chapter. If the Biſhop be ſued
as a Diſturber for refuſing to admit à Perſon preſented to him, he
may in his Anſiver either plead, as before, he claims nothing but as Or-
dinary, and ſo the Patron may take Judgment againſt him, or main-
tain him a Diſturber as aforeſaid, or elſe the Biſhop in his Anſwer may Biſhop may
juſtify the Refuſal of a Clerk preſented to him; but then the Biſhop Refufal.
muſt be very careful that his plea be fufficient, for tho' he hath juſtly
refuſed, he may make himſelf a Diſturber by his ill Plea, for which
are cited, 14 H.7. 21. b. 5 H. 7. 20, in Specott's Caſe, vi the Biſhop
of Exeter, Gouldsborough 25.
That the Biſhop's Plcà may be ſufficient to bar the Plaintiff, he muſt And muſt
therein ſpecify the Cauſe of his Refuſal particularly, ſo that the Par- Cauſe parti-
ty may anſwer to it.
5 H. 7. 19. Ii H. 7. 17. And therefore when cularly.
the Biſhop in his Plea did ſpecify one Cauſe of Refuſal which was not
good, and ſaid moreover, quod propter diverſa alia Crimina, the
Clerk was Criminoſus; 12on Idoneus, it was held that the latter
Words were too general and uncertain, Dyer 254, for he might as
well have ſaid that he was Criminoſus generally, or non Idoneus gene- Non Idoneus.
rally; and if the Fault or Defect of the Clerk be not alledged parti-
cularly, how
can the Party anſwer to it? So when a Biſhop ſhewed for
Cauſe of his Refuſal of a Clerk, that the Clerk was Schiſmaticus in- och
Schifmaticus,
veteratus, it was adjudged and affirmed in Error that the Plea was too
general, and therefore uncertain, and ſo inſufficient, for he ought to
have thewed in what he was a Schifmatick: Altho' whether he be a
Schiſmatick or not, be triable by the Ordinary according to the Sta-
tute of Articuli Cleri. But by that Statute it appears that the Biſhop It muſt be a
may refuſe only for reaſonable Cauſe, and a general and uncertain
Cauſe is not a reaſonable one ; and though the Biſhop is Judge in
examining, yet for as much as the Proceedings of the Biſhop are not
of Record, the Cauſe of a Refuſal is traverſable ; and if it be traver- Traverſe
fed, and the Party refuſed be in Life, it ſhall be tried by the Metropo- tried.
litan, and if he be dead, by the Country. And therefore although it
doth not appertain to the King's Courts to determine Schiſms and He-
reſies, yet the original Cauſe of the Suit being Matter whereof the
King's Court hath Conuſance; the Cauſe of the Ordinaries judging a
Preſentee an Heretick or Schiſmatick ought to be alledged in certain, Certainty.
that the Judges may conſult with Divines to know if it be Hereſy or
not, and if the Party be dead, direct the Jury to try it. Hill. 32 Eliz.
Ааа
B. R.
rcaſonable
Cauſe.
I
274
The Clergy-Man's Law: Or, Chap. XXVI.
111 Duare
lmpedits.
That the
Demurrer.
tute.
Clerk ;
Pleas, &c. B. R. Specott's Cafe, 5 Coke 57, fame Caſe 3 Leonard 199. Goulds-
borough 351, and Anderſon 189. And it was alſo in this Cafe urged,
that by the Plaintiff's Demurrer to the Biſhop's Plea
Confeffion by Clerk was a Schiſmatick, it was confeſſed: To which Anderſon ſaid,
that if a Thing be ſufficiently alledged, it is confeſſed by the Demur-
rer, otherwiſe not, Gouldsborough 35. Nor doth the Statute of De-
murrers, 27 Eliz. help the Incertainty in this Cafe, becauſe the Court
neither doth nor can know how this Plea may be amended, as that
Statute doth require, and therefore it is out of the Compaſs of the Sta-
I Anderſon 191.
Perjury Alſo if a Biſhop refuſe a Clerk for Perjury, he ought in his plea to
alledged
ſhow how and in what a Clerk is perjurus, and before what Judge he
was perjured, that the Perjury may appear to be ſuch, for it is as none
if not before a lawful Judge. 38 Ed. 3.fo. 2. 2 Inſtit. 632. In a late
Cafe between the Biſhop of Exeter & alios v. Sampſon Hele, in a Quare
Impedit brought by Hele, the Biſhop pleads in Bar that the Church is
within his Dioceſe, and that he claims nothing but as Ordinary, &c.
and that the plaintiff preſented to him one Francis Hodder as his
that as Ordinary of the Church aforeſaid, he did examine him
of his Ability and Fitneſs in that Behalf, and upon ſuch Examinati-
In literatura on, found him to be a Perſon in literatura inſufficien', ac ea ratione
inſufficiens. fore perfonam inhabil & minime idoneam ad habend the ſaid Benefice,
for which Reaſon he refuſed him, and gave Notice thereof to the Plain-
tiff, &c. but that the Plaintiff did not preſent any other within the 6
Months, per quod he did collate G. H. who was inſtituted, &c. The
Plaintiff replies, that Hodder at the Time of the Preſentation was Vi-
car of U. that he was Homo literatus & infra ſacros Ordines Conſtitut
Repi' quod li-
teratus, coca c. & poft Dottrin' & literaturi examen, Ordines Sacerdotales
per
Ordinationem adept' fuit, and licenſed to preach by a late Biſhop of
Exon, &c. After a Rejoinder by the Defendants
, and Sur-rejoinder by
the Plaintiff, the Defendants demur, and adjudged by the Court of
Common Pleas, that this plea of the Biſhop's was incertain and inſuf-
Judgment ficient, which Judgment was affirmed upon a Writ of Error in B. R.
againſt the
Biſhop
but upon a Writ of Error brought in Parliament, both the ſaid Judg-
Reverſed in ments were reverſed. Caſes in Parliament 88, and 3 Lev. 313.
If the Biſhop hath collated by Lapſe to the Church of another Pa-
tron than the King, whether it be that the Patron having preſented a
Clerk who was refuſed, and upon the Biſhop's Notice thereof did not
preſent another in Time, or becauſe no Preſentment was made with-
Biſhop's
in the Patron's ſix Months, and the Biſhop be therefore ſued, he may
ſet up his Title of Lapſe, yea, and againſt the King, if he ſhould after-
Lapſe.
wards pretend Title to the Church, whereas a common Perſon is the
85 Ed. 3.
true Patron : For it hath been enacted, Jtem, Becauſe that niany Pie.
Centments to divers Benefices of poly Church, as well of the Patro:
nage of Lay People as of the People of Holy Church which were
void by die onths, whereof the Collation of ſuch Benefices by Lapſe
of Time was devolute, and of Kight pertaining to the Dudinaries of
the place were recovered by the king, by Judgments thereof given if
the affent of the ſaid Patrons, in Deceit of the ſaid Collations lo
made reaſonably by the ſaid Didinaries, in which places the Didina:
ries, noz their Clerks to whom they did give ſuch Benefices, were not
received to the w noz defend their Right in this Behalf, no to coulis
ter plead the King's Right ſo claimed, which is not reaſonable.
Therefore the king by affent of the Caid Parliament will and grant-
eth
Parliament.
Title by
f. 7.
Chap. XXVI. The Complete Incumbent.
275
cth for him and his heirs, that when archbiſhops, Biſhops, Od other pleat, &oc.
Didinaries have given a Benefice of Right devolute to him by Lapſe Impedite.
of Time, and after the King prefenteth and taketh the Suit againſt
the Patron, which per Caſe will ſuffer that the king fhall recover
without adion tried in Deceit of the Didinary, oz the Pollellod of the
Caid Benefices, and in ſuch Cale, and all other Cales like, where the
King's Right is not tried, the Archbiſhop 02 Biſhop, Didinary op
Poſſeſſor, ſhall be received to counter-plead the Title taken for the
King, and to have his anſwer, and to thew and defend bis Right up.
on the Matter, although that he claim nothing in the Patronage in
the Care aforeſaid. Stat. 25 Ed. 3. cap. 7.
The Reaſon of which Law was this, that the King not being bound Gives Re-
by Lapſe of Time, when the common Patron had ſuffered a Lapſe, the Kings
and the Ordinary had collated lawfully ; if the King pretending him-
felf Patron had brought a Quare Impedit againſt the Ordinary and his
Incumbent, they could not ſave themſelves, ſeeing that they could not
deny the King's Title, and maintain the Patron's, in whole Default
Lapſe took place.
This Statute alſo gives Remedy in like Caſes by expreſs Words, fo And others
that Cafes of like Nature are rather remedied by the Letter of the the like
Statute than the Equity thereof; therefore, if a common Perſon no Naturc.
true Patron had preſented within the ſix Months, and the true Patron
had not preſented in his Time, whereupon the Ordinary had collated
for Lapſe, and the Pretender had brought a Quare Impedit againſt the
Ordinary, becauſe the Clerk was refuſed, the Pretender muſt neceſſa-
rily have prevailed before this Statute, becauſe his Title muſt needs
be taken for good, when neither Ordinary, nor Incumbent was ſuffered
to deny it ; but now by this Statute they are relieved, for this is one
of the like Caſes, by Hobart, in Sir Willian Elvis's Cafe, D. the Arch-
biſhop of York, Taylor, &c. Hobart 318, 319.
If the Patron doth bring a Quare Impedit againſt the Biſhop for a Biſhop's Bar
Diſturbance, and the Biſhop doth plead that he claims nothing but as ought to de-
Ordinary, and confeſſeth the Plaintiff's Title to prefent; and further
faith, that the Church voided ſuch a Day, after which the Church
remained void by the ſpace of ſix Months, and for that the Plaintiff
preſented no fit Perſon within the Tempus Semeſtre, he collated as Or-
dinary after the Lapſe of ſix Months, as it was lawful for him to do;
this is an inſufficient Bar, for that thereby the Defendant doth neither
deny, nor confeſs and avoid the Diſturbance laid, and if the Plaintiff
doth reſt upon the Bar, and denjur upon it, Judgment ſhall be given a-
gainſt Defendant, altho' it be after diſcovered that the Plaintiff hath
laid in his Declaration the Preſentation and Diſturbance to be after the
Date of the Writ. But if to ſuch inſufficient Plea, the Plaintiff doth
reply, and confeſs that the Church did void as the Biſhop faid on ſuch
a Day, and that within the ſix Months, viz. on ſuch a certain Day he Bar that the
preſented A. B. praying the Biſhop to admit him, which he refuſed Patron
to do, and that the Biſhop on another Day, and within the 6 Months fented not
collated his Clerk, and then the Biſhop doth demur, for that the Repli- Months.
cation to his Plea doth contain double Matter, and is uncertain, and
after it is diſcovered that the Plaintiff hath in his Count laid the Pre-
ſentment and Diſturbance to be after the Teſte of the Writ, although
the Court held, that the Replication was not double or doubtful,
becauſe the Defendant's Plea was, that the plaintiff had not preſented
a Clerk to him within the fix Months, and the Replication is, that he
Ааа 2
did
nyor
confeſs
and avoid.
pre,
4
276
The Clergy-Man's Law: Or, Chap. XXVI. .
in Quare
3mpedits.
Default in
TVrit.
Time of No
1
Pleas, &c. did preſent within the fix Months, fo there was a perfect Negative and
Affirmative, which makes the Iffue; and the Plaintiff did but add a
Refufal to make good the Diſturbance laid in the Declaration, and
Judgment
then the Plea is compleat : And tho' the Plaintiff hath laid a general
pro Def. for
Difurbance in his Count, which is fuppofed truc by the Defendant's
Plaintiff's Plea, and to be made before the Aetion brought; yet this ſhall not
fave the plaintiff, but that he ſhall be barred for the Fault in his De
claration appearing to the Court, vim that there was no real Diſtur-
bance made, nor Cauſe of action given to the Plaintiff at the 'Time of
his Writ brought, and this of his own ſhewing. Mich. 15 Jac. Brick-
head v. the Archbiſhop of York, Hobart 198.
Alſo in fucb Cafe of the Biſhop's being ſued as a Diſturber, for that
rice to be al- he hath refufed the Patron's Clerk, and upon Default of prefenting
alledged.
another, hath collated upon the Account of Lapfe, he muſt in his
Plea alledge the Timc of his Notice given to the Patroni, becauſe if
the Patron fends his Clerk within a Month after the Avoidance, and
the Ordinary will not give Notice to the Patron of his refufing him,
the ſame ſhall not be any Default in the Patron ; by Manwood; but if
in frich Cafe the Ordinary doth ſay in his Plea, that the Clerk was in-
ſufficient, and that he gave Notice to the plaintiff
, and that ridlan
idoneam perfonam præfentavit, Manwood, faid, that as to the Notice
given to the Patron, it is well pleaded by ſuch Words, and it ſhall be
intended that it was given to the Perſon of the Patron ; but the Court
faid, that to fay that nullam idoneam perfonam præfentavit was no good
Manner of Pleading, but that it had been better if it had been nullam
etiam perfonam idoneam preſentavit, and that the firſt Form would be
a Feofail, Mich. 15 El. C. B. 3 Leonard 47.
As the Biſhop, fo the Patron that is made a Defendant, is to put il
his Plea according to his Cafe, and with reſpect to the plaintiff's De-
claration; as to whom if he pleads non impedivit, or any inſufficient
If infufficis Plea, the Writ ſhall be awarded to the Biſhop. 2 i Ed. 4. 65. 9 H. 6.
16, 17. 7 H. 4. 32. 21 H. 6. 45. 22 H. 6. 28, 29. 10 H. 6.4. 5 H. 5.
10 But there ſhall be a Cellet Executio until the plea between the
Plaintiff and the other Defendants be determined Brownlow and
Gouldsborough i part 159.
Plenarty If the Clerk of a Stranger be Incumbent of a Church by the Space of
pleaded. fax Months by Admiffion and Inſtitution only upon his Preſentment;
this makes a Plenarty without Induction. Hiß. 22 H. 7. Keilway
88. And the Patron may plead againft all common Perfonis ; for
it is enacted, Chat one Foim of Pleading Chati be obſerved anong Jus
Hoces M Calcitg gf Darrein Preſentment and Quare Impedit in this
Kelpeä 3 if the Detendant alteogeth Ptenarty of the Church of his
oWii Prefentation, the Plea Aljati not fait by reaſon of the plenarty,
fo that the Writ be purchaſed within the fix months. Weft. 2. cap. 5.
viz. Stat. 13 Ed. 1. cap.5. But if a Writ be brought after a Plenarty
by fix Moncles, and Judgment be given by Nihil Dicit, and the Bifhop
Mloníths, and claims nothing, the plaintiff though a Purchaſer fhall have fudgment,
Judgment by. and Be renritted to bis Riglet, bay Coke, Trin. 15 F4. B. RŐ Harris v.
Auftiny 3 Bulftrode 38, 46. Therefore Qgare, Whether the Incumbent
of ſuch Ufurper fhall not be outed by fuch Recovery. However, if any
Perfon doth preſent to an Advowſon, the Right of preſenting to which
Plenarty is in the King, upon a Writ brought by the King, Plenarty cannot be
pleaded to bar "the King, and to eſtablish the Incumbent in his
Poſſeſſion, although he hath been inducted by fix Months before the
Patron's
Plea.
ent.
Ia Plenar-
ty by fix
cannot Bür
the King
4
Writ
Chap. XXVI. The Complete lincumbent.
277
re
Collation
where not
Writ purchaſed; by Anderſon Chief Juſtice againſt Wamily, Kingſ- Paleas, eye.
mill
, IVarburton and Daniel, who held, that by Uſurpation the King Himpedirs.
might be put out of Poffeffion ; but the Law is now taken to be o-
thietwiſe, viz. that the King cannot be put out of Poſſeſſion by any Ufur-
pation, (that is) his Inheritance in his Advowfon, cannot by any Uſur-
pation be deveſted out of him, but the King by a Plenarty is ſo far out
of Poffefſion, that he cannot prefent, but muſt firſt remove the Incum-
bent, who hath by Preſentation, Inftitution and Induction got the Pof-
feſſion of the Church. 2 Inft. 358. Boſwell's Cafe, 6 Coke 49, 5o. And
fo is the Law alſo taken to be, that Plenarty is not pleadable against
the King. Mich. 28, 29 Eliz. C.B. Leonard 226, and in Bolwell's
Cafe, 6 Coke 49. See cap. 13. But Plenarty by fix Months upon an
Inftitution, where the Inſtitution is made upon a Prefentment, is plead-
able by all Perfons againft a common Pation ; yet a Plenarty by meer Plenarty by
Collation is not pleadable, but the Patron may bring his. Writ and
move the Collatec at any Time. Stat. Weft. 2. cap. 5. Mich. 32, 33 pleadable.
Eliz. C. B. Smallwood, Cole and Sale '. the Biſhop of Coventry and
Marſh, 3 Croke 207. Jenkins Cent. 7. Caſe 7. Mich. 3. Jac. Boſwell's
Cafe, 6 Coke 49. And ſo I ſuppoſe Plenarty upon a void Preſentment
is not pleadable, for then the Clerk is Incumbent as it were by Colla-
tion only; but when 'tis faid that Plenarty by Collation is not plead-
able, it is to be limited, as to ſuch who have Right to preſent, but
not to ſuch who have Right to collate, for Plenarty by Collation doth
put
him that hath Right to collate to his Writ of Right, and is pleado
able againſt him that liath the Right of collating. 11 E. 3. 64. b.
Dean of Lincoln's Cafe. Mich. 3 Jac. in Bofwell's Cafe, 6 Coke 49,
50. 2 Inſtit. 357.
And it is to be noted, that both Plaintiff and Defendant in a Quare Where ei-
Impedit may be Actors, and either of them have a Writ to the Bithop, ther Plain-
as the Right falls out to be. But if the Defendant hath preſented his
Clerk, and he be admitted, inſtituted and inducted before thic Quare have a Wric
Impedit brought, the Defendant then hath no Caufe to have a Writ to to the Bi-
fhog
the Biſhop, and confequently the Defendant is no Actor, but a bare
Defendant, and the Poffeffiony of his Clerk is Title fufficicnt, if the
Plaintiff doth not few a better; for the Plaintiff cannot in Law or
Reaſon fay, That the Defendant hath no good Title, and from thonice
conclude that he hath. And therefore if thc Defendant doth alledge
in his Plea a Title pro forina, and that he hath prefented by reafon
thereof, and that his Clerk is inftituted and inducted, this iš fufficie
ent for the prefent and future Time, if no bettor Title be oppofød
to it, without alledging any other Preſentation in himſelf, of any of
ther from whom he claims; but if the Defendant was out of poffef-
fton as well as the Plaintiff, he mult then make out a good Title, or
cfo he fhall never have a Writ to the Biſhop to admit his Clerk ;
and in this Caſe only it is that the Defendant is Actor as well as the
Plaintiff, and in ſuch Cafe he is to alledge a Seifin of the Advowfon Where he
as the Plaintiff muſt, either in himſelf, or thoſe from whom he claims, muft alledge
which is to be done by alledging á fortaer Prefentation, that being
the only actual Seiſin of an Advotvfon, and the Ground why ke
ſhould preſent to any Voidance. Hill
. 19 Car. 2 Sir John Tufton v.
Sir Richard Temples Vaughan 7. 9 H. 6. 56. b. 43 Ed. 3. 25. 12 H.
4. 11. 1 H. 7. 13. And thơ the Plaintiff be Nonfuit, yet no Writ to
the Biſhop without Title made. I i H.6.8.
.
tiff or De-
fendant may
Seiſin,
As
278
'The Clergy-Man's Law, Or: Chap. XXVI.
Pleas, Copco
inuare
Empedits.
How the In-
cumbent
may coun-
muſt be a
As the Biſhop and Patron, ſo the Incumbent (if there be onc) muſt
put in his plea to the Declaration of the Plaintiff, that is, if he be
made a Party. 9 H. 6. fol. 56.
Before the aforeſaid Statute of 25 Ed. 3 c. 7, if an Incumbent had
been collated by a Biſhop to a Church, the Title of collating to which
terplçad the came to him by Lapſe, and the King who is not bound by Lapſe of
King's Title.
Time, pretending Title to the lapſed Benefice, had ſued the Biſhop
and Incumbent, the Incumbent muſt have been outed, becauſe neither
Biſhop nor Incumbent, could either have denied the King's 'Title, or
maintain the Patron's, in whoſe Default the Collation was made; or
if a Clerk had been a Compleat Incumbent upon the Preſentment of
any other Patron, he could not have pleaded his Patron's Title, or
defended himſelf in the Poſſeſſion of his Church: So if the Patron
would have colluded, and made a faint or falfe Defence, he muſt
have ſuffered by it. But now by the faid Statute, the Incumbent is
allowed to counterplead the King's 'Title, and by the Equity of the
faid Statute, the Title of any other Perſon that ſhall pretend to have
the Right of preſenting to that 'Turn to which he hath been pre-
fented, or collated, altho' he doth claim nothing in the Patronage.
Paſch. 31 Eliz. C. B. Hall's Cafe. 7 Coke 26. Therefore, if the Bi-
Top having collated an Incumbent upon the Title of Lapſe, doth in
his Plca (to a Quare Impedit brought againſt them) claim nothing but
as Ordinary, altho' a Writ to the Biſhop ſhall be awarded againſt him;
yet the Incumbent may plead the Collation, and ſo bar the Plaintiff.
Paſch. 32 Eliz. Stanley v. Thomas Chaffin. C. B. 1 Anderſon 238,
But then he 239. But then by the Words of the Statute, he muſt be a Poſſeſſor
Poffeffor.
of the Benefice, that is, ſuch an Incumbent that is not only preſented,
admitted and inſtituted, but alſo inducted, by which he is ſaid to be
Parſon imperſonee, ſo that until ſuch Time that he hath Induction, he
is under the Miſchief of the Common Law before declared. 4
Bataile v. Cook Dyer. i b. and by Dyer. Mich. 15 Eliz. C. B. 3
Where the Leonard 47. Therefore if the Cafe be ſuch, that the King's Clerk
King's Clerk
being only
(being admitted and inſtituted only) be ſued as a Diſturber ; before he
is inducted, it is neceſſary for him to plead, 'tho’untruly that the King
muſt plead preſented him, and that he was admitted, inſtituted, and inducted,
Indu&tion.
before the Writ brought, upon the King's Preſentation, for by being
preſented, admitted and inſtituted, he is a Diſturber, and may be ſued
as fuch before Induction, and being preſented by the King, he muſt be
ſued without the King his Patron, which is not the Caſe of the Pre-
fentee of a common Patron, becauſe he may abate the Writ, for that
his Patron is not named with him, who may defend his Title when
himſelf cannot, for want of Induction. And if he doth not at leaſt
plead himſelf inducted, he cannot plead the King's Title to the ſaving
of hiniſelf, and ſo the Action without ſuch Plea of Induction muſt un-
avoidably go againſt him. But by this Courſe he may fave his Intereſt
.
Mich. 15 Jac. Winchcombe v. Biſhop of Wincheſter and Pulleſton. Ho-
·bart 168, 193.
Parfon imper But Coke ſeems to ſay, that a Clerk is Parſon imperſonee only by
Jonee when
Inſtitution, and may pleádjhimſelf Perſona imperſonata of the Church
for which the Writ is brought, that is, if it be brought by a common
Perſon, becauſe the Church is Plena & Conſulta, only by Inſtitution,
againſt all but the King; but if the Writ be brought by the King as
gainſt a Patron and his Clerk, the Clerk cannot (he grants)
without Induction, becauſe without Induction the Church is not Plena
Con-
H. 8.
inſtituted,
plead
Chap. XXVI. The Complete Incumbent.
279
in uare
Induction
was after the
do Conſulta againſt him, in Hall's Cafe. Paſch. 31 Eliz. C. B. 7 Coke pleas, &i.
26. But the former Opinion I conceive is taken to be Law, viz. that
Impedits.
he is not Complete Incumbent to plead his Patron's Title until In-
duction.
However, by Hutton, if one be preſented, admitted, and inſtituted Though the
before the Writ brought, and be inducted after and before he plead, he
may well plead the Patron's Title, and per Curiam, when he is capa- Writ.
ble by his Incumbency to plead his Patron's Title, it is ſufficient for him
to ſay that he is Perſona imperſonata, ex Präſentatione A. viz. his
Patron, altho' he doth not add ante Diem impetrationis Breviso
Paſch. 3 Car. C. B. Dame Chichely v. the Biſhop of Ely. Hetly 17,
18. And altho' the Patron of the Parſon imperſonee Mould confeſs
in his Plea the 'Title of the Plaintiff
; yet fuch Parfon may deny it,
and ſet forth in his Plea his Patron's Right of preſenting ; therefore,
if the Biſhop or other Patron doth plead infufficiently, that ſhall be no Inſufficient
Prejudice to the Clerk's 'Title. Pafch. 14 7at. Brickhead v. the Arch- Plea by Bi-
biſhop of York. Brownlow and Gouldsborough i Part 164. 31 Ed. 3. to prejudice
Fitz. Incumbent 6, cited by Hobart in Colt and Glover's Cafe. Hobart the Clerk.
162. For tho' the Patron may thereupon pray Judgment and recover
the Preſentment, yet no Writ ſhall go to remove the Clerk. Br. Ab.
Breve al Eveſque 14. Or if the Patron doth make Default, and the
Incumbent doth plead to the Writ, which is found for him, and then
the Incumbent doth
pray that the Writ may abate, and the Plaintiff
doth pray a Writ to the Biſhop for Default of the Patron, in this
Cafe the Writ is to be abated, and no Writ to iſſue to the Biſhop,
by Advice of the Juſtices of both Benches. 7 H. 6.15: To H. 6. 4.
As the Plea of the Patron doth not prejudice the Clerk, ſo the Plea Incumbent's
of the Clerk will not prejudice the Patron ; and therefore if the Clerk falſe Plea
doth plead that he is Parfon imperſonee, and a good Bar, and the Pa- judice the
tron alfo doth plead his Title, but doth not acknowledge any Ple- Patron.
narty of his Preſentment, and Judgment is given againſt the Plaintiff,
the Patron ſhall have a Writ to the Biſhop, for that the falſe Plea of
the Incumbent ſhall not conclude the Patron, who could not contra-
dict it in this point, if it did, the Patron could not have a Writ to the
Biſhop, becauſe the Church was pleaded full of his Preſentment, and
fo no Benefit of his Suit. Roll's Abr. 2. p. 389. Hob. 196.
So if a Quare Impedit be brought againſt the Incumbent of the Where the
King, and he pleads that he is Parſon imperſonee, that is, as well in- pleads Indu-
ducted as inſtituted, and a good Bar againſt the Plaintiff ſo that &ion falſely.
it is adjudged againſt him, altho' in this Cafe the Defendant pleaded
that he was inducted falſely, yet the King ſhall not be bound thereby,
but that contrary to the Record he may have a Writ to the Bi-
ſhop, becauſe the King was no Party to the Confeſſion, but is as a
third Perſon always preſent in Court, and therefore upon Suggeſtion
that his Clerk is not inducted, he ſhall have his Writ to the Biſhop,
but peradventure not without ſuch Suggeſtion, and if in ſuch Cafe no
Writ ſhall be awarded, the King would have no Advantage by the
Recovery, nor could his Clerk be ever made full Incumbent of the
Church, but both the King and his Clerk loſe the Benefit of the Suit.
Mich. 15 Fac. Winchcomb and Pulleſton's Cafe. Hobart 193.
However, altho' the Clerk being Complete Incumbent may plead' A Clerk may
by the Statute, and alſo hath a good Title if well pleaded, yet he loſe his In-
may deſtroy it by his own ill' Pleading, and thereby loſe his Incum- ill Pleading:
bency; it behaves him therefore to bio very careful that there be no
3
Miſtake
280
The Clergy-Man's Law: Or, Chap. XXVI.
---
in suare
Diſturbance
on the Firſt
Without
fogoro
Pleas, &c. Miſtake in his Plea, for the Miſtake of a Name, as Peter for Thomas,
&c. may be fatal to him, as was adjudged. Hill. 14 Car: B: Ri Har-
Sinpedits.
pur v. the Bailiff and Burgeſſes of Derby. Jones 427.
A Qgare Impedit was brought, and the Plaintiff counted upon a
of November, Diſturbance on the Firſt of November, and the Incumbent pleaded,
Bar by Pre-' that on the Firſt of May next after the faid Firſt of November, hé
fentment the himſelf was preſented to the Church by the Queen, the Right of
upon Lapfe. preſenting to the ſaid Church being devolved to her by Lapſe ; upon
which the plaintiff demurring in Law, the Plea was holden infuffi-
cient; (per Curian) for the Plaintiff counted upon a Diſturbance to
him on the firſt of November, and the Defendant entitleth himſelf to
an Incumbency on the firſt of May after, in which Cafe the Diſtur-
bance ſet forth in the Count is not anſwered by Traverſe, nor confeſſed
Traverſe,
nor avoided, which it ought always to be but the Diſturbance ac
knowledged ; and altho' in this Cafe, in order to have a Writ to the
Biſhop for the Queen, it was urged that the Title of the Queen did
appear to be by Lapſe, which is confeſſed (I ſuppoſe by the Plaintiff's
Demurrer to the Incumbent's Plea). Yet by the whole Court, the
Writ was denied ; for tho' it appeareth that the Incumbent was law-
fully preſented to the ſaid Church, and ſo once lawful Incumbent, yet
it appeareth alſo that the 'Title of the Queen is once executed by pre-
ſenting the ſaid Incumbent, and ſo gone. And when the Incumbent
as here hath loſt his Incumbency by ill Pleading, which he may do as
well as by Reſignation, or other Means, the Queen's Turn is ferved.
But if in the like Caſe the Queen had been Patron, ſhe ſhould have
Aliter if the had a Writ to the Biſhop to admit ſuch Perſon as ſhe ſhould after-
Queen had wards have preſented. Mich. 31, 32 Eliz. C. B. Arundel v. the Biſhop
been Patron. of Glouceſter and Chafin. 1 Leonard 194, and Paſch. 32 Eliz. Stan-
ley v. Chafin. C. B. i Anderſon 238.
That the Incumbent may make a fufficient Plea, he muſt remem-
ber, that by the Letter and Meaning of the Law that enables him to
fentment he Plead, viz. Stat. 25 Ed. 3. C. 7, he cannot plead that he is Parfon
generally, but muſt neceſſarily ſhew of whoſe Prefentment, whereby
it may appear to the Court, that the Title he defends is his Patron's,
for he muſt as well ſhew and defend his own and Patron's Right, as
counterplead his Adverſaries; and therefore he cannot make himſelf
Parſon imperſonee of the Preſentation of one, and make a Title to an-
other as Patron, Hellwey's and the Archbiſhop of York's Cafe. Jones
5. and Hobart 321. Jenkins Cent. 5. Caſe 18, and ſo defend himſelf
by the Title of a Stranger, under whom he claims not, tho' that were
fufficient to deſtroy the Plaintiff's Title, by confeffing and avoiding it,
or the like, therefore when he ſays of whoſe Preſentment he is Parſon,
that is traverſable. 16 Car. B. R. Sir John Dryden, &c. v. Yates.
May not
i Cro. 591. Neither can he counterplead the plaintiff's Title, but muſt
plead his Ti- alſo make a Title to himſelf, by the Words and Meaning of this Law,
ile after Re- that is, his Patron's Title whereupon his own depends ; and albeit the
fignation.
Incumbent is inducted, yet if he (being made a Defendant in a Quare
Impedit) doth reſign hanging the Writ, he hath loſt his Privilege by
the Statute of pleading to the Title of the Patron; for it was granted
him to defend his Poffeffion, fo when his Poffeffion is gone, there is
no Caufe for him to uſe it. 31 Ed. 1. Fitz. Incumbent 6. And there-
fore it is not good for him to fay that he was Parſon imperſonee,
unleſs he may ſay that he is fo. Hill
. 17 Car. Palmer v. Hudde.
plead. March 158. ' And yet the Incumbent that hath reſigned, may
plead as he might have pleaded at the Common Law, and if he
Hc mult
ſhew of
whoſe Pre-
is Parſon.
How he may
I
doth
Chap. XXVI. The Complete Incumbent.
281
in Quare
Incumbent
doth plead otherwiſe, viz. according to the Statute, the Plaintiff may Poleas, &c.
reply his Reſigning, hanging, the Writ, and by that, will defeat him
impedite.
of his Plea. Pafch. 17 Jac. Sir William Elvis v. the Archbiſhop of
Tork. Taylor and Biſhop. Hobart 321. But tho' the Incumbent may
plead as before the Title of his Patron by this Statute, yet as is ſaid, Biſhop not
the Biſhop cannot otherwiſe plead thereby than he could have done within the
before at the Common Law, but only where he hath collated actu- fore actual
ally by Lapfe, for tho' the Incumbent by Preſentation be alſo ad- Collation.
mitted to plead by the Meaning of the Law under the Words
Like Cafe-
Becauſe the Caſe of being Incumbent upon a Pre-
fentation, is like the Caſe of being Incumbent by Collation only, yet
the Ordinary's Caſe before actual Collation is no ways like in Cafe,
for he hath gotten no Intereſt for himſelf, or his Clerk in the Church,
and therefore if the Incumbent inſtituted only be not within the Re-
lief of this Law, much leſs ſhall the Ordinary who hath no Intereſt,
but only an Office, by which he ought to be indifferent to all Parties,
and maintain no Sides. Paſch. 17 7ac. Sir William Elvis v. the Arch-
biſhop of York. Taylor and Biſhop. Hobart 321. The fame Caſc.
Jones p. 4.
Tho it be ſaid before, that the Incumbent who may plead, muſt Quare Impedit
not only counterplead the plaintiff's Title, but muſt alſo make a Ti- by the Queen
againſt the
tle to himſelf, by the Meaning of the aforeſaid Statute ; yet when the
Queen brought a Quare Impedit againſt the Incumbent alone, who alone.
did only counterplead the King's Title, by ſetting forth that the
Queen's Anceſtor had made a Leaſe of the ſaid Advowſon to 7. S.
who had the Right of preſenting, and that the Church being void,
he was preſented by 7. D. upon whoſe Preſentment he was inſtituted
and inducted, upon a Demurrer thereto, altho' the Court at firſt was
of Opinion againſt the Defendant, becauſe that he had not in his Plea
ſhewed any Title in his own Patron, but only counterpleaded the Ti-
tle of the Queen, and (by Periam) the Patron himſelf could not have
had ſuch Plea if he had been Party to the Writ, and therefore not
the Incumbent, and it is no good Pleading in any Action to diſcover
in pleading any Wrong, as Force, Diffeiſin, Ufurpation, &c. yet at
length Judgment was given againſt the Queen, becauſe there was not
a bare Uſurpation only pleaded againſt the Queen, but alſo an Eſtate,
viz, a Leaſe of the Advowfon made to him upon whom the Uſurpation And a Pre-
was made, ſo that the Queen was encountered with a Leaſe of her ſentment by
Uſurpation
Anceſtor, againſt which ſhe could not make Title to preſent without
ſpecial Matter. Mich. 28, 29 Eliz. C. B. Queen and Middleton's Caſe. Leſſee, and
i Leonard 45, 46.
Tho' (as before) an Incumbent of a Church may by the Statute of What Clerks
25 E. c. 7, plead his Title, c. yet if he be ſuch a Clerk as is in are only aid-
only by Prayer to be admitted, or otherwiſe without Preſentment, Statute.
or upon a void Preſentment, which is as nonc, he is not aided by this
Statute to plead in Bar, becauſe the Statute doth require an Incum-
bent preſented; neither need the Plaintiff name him in his Writ that
made ſuch a void Preſentnient, Jenkins Cent. 5. Caſe 18, and fo
ſuch Clerk hath no way to defend his Title, which was the Caſe of
all Incumbents before the Statute, as appears by 18 Ed. 3. 23, where
the King brought a Quare Impedit againſt the Patron and his Incum-
bent, and claimed by the Grant of the next Avoidance from the ſame
Patron to him, which was no Plea without ſhewing it, but the Pa-
tron confeſſed it, and the Incumbent demanded Judgment, becauſe the
Bbb
King
upon the
allowed.
282
The Clergy-Man's Law : Or, Chap. XXVI.
Werdigs,
King fhewed no Deed of the Grant; which Exception was diſallow-
re-impedits: cd ; then he pleaded, that the Patron made no ſuch Grant, which the
Prior whom it concerned had confeſſed, and both were adjudged a-
gainſt him, becauſe he claimed nothing in the Patronage, and fo could
not plead; from which Caſe it ſeems to be, that if a Dean and Chap-
ter, or Maſter and Brothers of an Hoſpital, Gc. have prefented their
Dean, or Maſter to a Church of their own Gift, the Preſentment be-
ing void, any Stranger may fue the Dean or Maſter, and recover a-
gainſt them, and ſo it is in the like Caſes: Quère. And it hath been
held, that when the Maſters and Brothers of an Hoſpital did preſent
the Maſter, and the Maſters and Brothers did bring a Quare Impedit
againſt the Maſter by a ſtrange Name, that the Writ did well lie,
and that they ſhould recover, the Preſentment being void. 12 H.
8. 12.
Such Incum-
bent may
Aurba pas.
That the Pa-
may not
plead
Plenarty
However, ſuch Incumbents as are not aided by the Statute, as in
plead Ne di-
the Caſe of a void Preſentment, and all others before Incumbency
(if made Defendants) may excuſe the wrong with which they are
charged, by pleading the general Iſſue Ne diſturba pas. And with
out making Title to the Patronage, a Man may ſhew as amicus cu-
rid, falfe Latin, or other Matter appearing within the Writ, for that
is no Pleading, but rather a remembring the Court of that of which
they ſhould take notice of Office; by Hobart; in Colt and Glover's
Caſe. Hobart 162,
Tho' a Clerk being inducted may plead his Patron's Title as afore-
tron may, faid; and being inſtituted only by the Space of fix Months, his Patron
yet a Parfon
imperſonee may plead Plenarty againſt all but the King, and thereby, tho’ he
hath no Title to the Patronage, bar the Plaintiff
, yet a Parfon im-
perſonee cannot in a quare Impedit brought againſt him plead Ple-
narty, as Manwood faid, for that the Statute of Weſtm. 2. c. 5,
gave fuch a Plea to the Patron, viz. that the Church is full of his
Preſentment by fix Months before the Writ purchaſed, and did deſtroy
the pleading of Plenarty at the Common Law, which was that the
Church was full at the Day that the Writ was purchaſed. Grendon's
Cafe. Plowd. 501. 16 Ed. 4. 11. 22 H. 6. 14. 38 H. 6. 20. b. Ac-
cordingly, when a Clerk pleaded that he had been Parſon for Three
Years, and Plenarty generally by ſix Months of the Preſentation of
onc not named in the Writ, the Court held the plea to be inſufficient,
becauſe the Parſon fhewed no Title in him that preſented him, being
a Stranger to the Writ. Brownlow i Part 162.
But if he had pleaded that he had been in the Church by fix Months
of the Preſentment of the Plaintiff himfelf, or by the Ordinary's Col-
lation for Lapfe, it had been good without making any other Title.
Liſter v. Crameel. Noy 30. 10 Ed. 4. 11.
What the fu When the Defendants have pleaded according to their refpective
quirc upon
Rights and Intereſts, the plaintiff is to reply according as his Cafe and
illue joined. the Pleas of the Defendant's ſhall require, &c. and if Iſſue be joined,
then the Jury that is to try that Iſſue is alſo to enquire ; Firſt, If the
Church be full; and if ſo, Secondly, of whoſe Preſentment; Thirdly,
If lix Months be paſſed from the Time that it became void; Fourthly,
Of the Value of the Church by the Year. Mich. 20 H. 7. Keilway
57, and Boſwell's Cafe. 6 Coke 5 1, and by Bratton Lib. 4. Tra£t. 2.,
cap. 6. fol. 296. Brownlow and Gouldsborough 1 Part 158. And they
are to find what the clear yearly Value of the Church is, deducting
what is paid out of the fame. Trin. 16 Car. B. R. Sir John Drey-
ry are to en-
deni,
Chap. XXVI. The Complete Incumbent.
283
ür. in 1184
den, &c. v. Yates: 1 Croke 592. But if the Jury be not charged, or Acrdict!'
,
do not enquire of theſe Points, yet that may be ſupplied by a new
re impedits.
Writ of Inquiry, and thoſe Matters inquired of by another Inqueſt.
Admitted in Cheyney's Cafe. 10 Coke 119. Or if the Jury do not or ello by
find what Time the Church was void, nor whether the Writ was pur- qucit
.
chaſed before or after the ſix Months are paſt; yet it is good; for it
Thall be intended that the Writ was timely brought, unleſs a Plenarty
be pleaded. Hill. 9 Car. Lort v. the Biſhop of St. Davids. Jones 332.
And if Coſts be alſo aſſeſſed by the Jury, which ought not to be, yet
that ſhall not prejudice the Plaintiff
, if no Judgment be given for ſuch
Coſts
. Paſch. 14 Jac. Grange v. Denny. B. R. Bulſtrode 3 Part 174.
When the plaintiff hath replied to the Pica of the Incumbent, if the
Incumbent doth not rejoin any Thing, nor join Iſſue, thc Plaintiff ſhall
have Judgment to recover his Preſentation as againſt him, and a Writ
Jurig nent to
to the Biſhop, noiz obſtante Reclamatione, &c. and to remove the In- recover, ei.
cumbent, but with a Ceſet Executio, until the Plea be determined be- with a celet
tween the Plaintiff and the other Defendants. Hill. 17 and 18 Car. 2.
B. R. Sir John Tufton v. Sir Richard. Temple. Vaughan p. 6.
And note, that a Biſhop being a Peer of the Realm, he ought al- When a
ways to have a Knight in the Inqueſt between him and any other Per- Knight
fon, and if no Knight be returned in the Inqueſt, a Venire facias de ought to he
110vo fhall be iſſued forth, if the Inqueſt be challenged for this De- queft.
fault. Jenkins Cent. 1. Caſe 19.
exinde.
CH A P. XXVII.
Judyments in Quare Impedit, &c. and of
Writs to be awarded to the Biſhop upon
ſuch Judgments.
?
and Advow-
fon.
A
Fter the Jury have given their Verdiet, Judgment is to follow, In Quare Ima
which is, to recover the Preſentment; and if the Recovery be in Dedit, Jude-
a Quare Impedit, the Advowſon alſo, by Goke. Trin. 13 Jac. B. R. cover the
Harris v. Auſtin. 3 Bulſtrode 38. Regiſt. 30. a. 1 Brownlow and Preſentinene
Gouldsborough 160, but Bro. Tit. Baron and Feme 28, and i Brown-
low and Gouldsborough 158, 159, ſeems to be to the contrary, that the
Preſentation and Damages, are only recoverable in a Quare Impedit.
And if the Tryal be had at the Alliſes by Niſi prius, the Juſtices of Judgment
Nifi prius may immediately give Judgment; for it is Enacted, “That given at the
A Gires,
an Alſiſe of Darrein Preſentment, and Inquiſitions of Quare Impe-
dit, ſhall be determined in their own Shire before one Juſtice of the
Bench, and one Knight at a Day and Place certain in the Bench af-
ſigned, whether the Defendant confent or not, and there the Judg-
'ment ſhall be given immediately. Stat. 13 Ed. 1. C. 30.' The Rca-
fon of making of this Branch, the Lord Coke tells us was in reſpect of
the Danger of Lapfe, and therefore in favour of the Patrons this
Clauſe was added, That the Juſtices of Niſi prius have Power to
give Judgment in theſe two Actions.
B b b 2
But
C
C
C
284 The Clergy-Man's Law: Or, Chap. XXVII.
SC may
Execution.
For the Dc-
Abatcment.
ance.
Nonſuit.
One brings Excuſe of the Wrong, and not to have the cauſe his plea was but in
Tubginents, But Albeit the Words of the Statute be, that Judgment ſhall be
Socy in Dux there given immediately, yet if the Juſtices of Niſi prius do not give
.
Judgment, upon Return of the Poftea, Judgment may be given by
be gi- the Court to which the Return is made, for the higher Courts are not
Court above. taken to be reſtrained by this Statute. And the Juſtices of Nifi prius
Juſtices of having Power given them to give Judgment, they have alſo Power ins
máy award cluſively as incident given them to award Execution, that is, a Writ
to the Biſhop, but that Writ is not returnable ; but after the Record
be returned into the Common Bench, if the Writ be not executed,
that Court may grant a Writ, ficut alias returnable into that Court.
2 Inftit. 424. Dyer 135, 260. at before I ſhew the Effects of the
Judgment, ſeveral Things are to be noted by the Way; as firſt, That
not always he that peradventure may have the beſt Title ſhall have
Judgment; and a Writ to the Biſhop, but the contrary Party, in that
fome Error or Miſcarriage doth happen, which prevents the Merits
of this Cauſe from being debated.
If the Writ doth abate for ſome Fault in the Declaration, the De-
fendant upon fendant ſhall have the Writ to the Biſhop to admit his Clerk, 31 H.
6. 15, and ſo the Defendant ſhall have it, if he demur to the Plaintiff's
Declaration, and upon the Demurrer it be adjudged for him and a-
gainſt the Plaintiff
. 28 H. 8. Dyer 24. b. Alſo if the plaintiff doth
Diſcontinu- diſcontinue his Suit, the Defendant ſhall have the Writ to the Bifhop.
31 H. 6. 15. So if the plaintiff after Appearance be nonſuited, altho
it be within the fix Months, the Defendant will have the Writ to the
Biſhop, 19 E. 4. 9..22. H. 6. 44. 33 H. 6. 1. 55. 2a Ed. 4. 14. 21
Ed.
4.
2. b. F. N. B. 38. k. Sir Hugh Portman's Cafe, 7 Coke 27. 1,
and ſo it is if the plaintiff be Nonfuit after the Defendant hath plead-
ed, 38 Ed. 3. 8. b, but when the Plaintiff is Nonſyit, and Judgment
is given that the Defendant ſhall recover the Preſentation, yet the
Defendant ſhall not have a Writ to the Biſhop before Title made;
ſuit, Title to but if the Defendant at the Day of the Proceſs ferved doth make
Default, the Plaintiff ſhall have a Writ to the Biſhop without o-
ther Title made. 22 H. 6. 44, 45. And if the Caſe be, that in
a Quare Impedit the Defendant doth make Title to the Church to
himſelf and a Stranger, and after the Plaintiff is Nonfuit, the Writ to
the Biſhop ſhall be awarded only for the Defendant, and not for the
Writ for an-
Stranger alſo, becauſe he is not named in the Writ. 13 Ed. 3. Writ to
the Biſhop 20, 25. Or if in a Quare Impedit againſt the Clerk and
another, the Clerk doth plead that he claims nothing, c. but conveys
a Title to the King that preſented him, and the other makes another
Title, and then the plaintiff is nonſuited, the Writ to the Biſhop ſhall
be awarded only for the other that was ſued with the Clerk, and not
for the Clerk the Preſentee of the King,
Writ. 14.H. 4. 16. But
Two Writs. if thręė do bring a Zjare Impedit, and only two of them be Nonſuit,
the Defendant ſhall not have a Writ to the Biſhop, becauſe the third
may have the Right ; or if a Man . doth bring two Writs of Quare
Impedit, and after is Nonfuit in one of them, the Defendant ſhall not
have the Writ thereupon, altho' he doth make Title. 12 R. 2. Writ
to the Biſhop 16.
In a Quare Impedit, if the Defendant doth plead that he did not
diſturb the Plaintiff
, the Plaintiff ſhall have a Writ to the Biſhop. 17
the Biſhop. Ed. 3. 17. a. So if in a Quare Impedit for the Church of D. the De-
fendant doth ſay that there is no ſuch Church in the ſame County,
the Plaintiff ſhall have a Writ to the Biſhop, 8 H. 6. 37. 9 H. 6. 17.
Upon Non-
be made.
other lived
with the
Clerk,
Where
Plaintiff
Thall have
the Writ to
contra
Chap. XXVII. The Complete Incumbent.
285
c. 111 112
4. 7. a.
the
nient.
contra 45 E. 3. 6, for this can be no Damage to the Defendant, for Tudgments,
the Writ niuſt be to the Church named in the Declaration : If there be
reemrecits.
none ſuch, the Plaintiff can have no Fruit or Advantage by his Writ;
if there be, the Defendant has no Prejudice, for he is ſo far from
claiming Title to that Church, that he knows nothing of it, Quæte.
So if the Defandant doth plead that pendant the Writ the Preſentee of
the Plaintiff is admitted, inſtituted and inducted: This is no good Plea
in Abatement of the Writ, the ſame being the Act of the Biſhop more
than of the Plaintiff
, but the plaintiff ſhall have a Writ to the Biſhop,
becauſe the Defendant doth neither gainſay the Right of the Plaintift
nor the Diſturbance laid. 11 R. 2. Quare Impedit 144. But if the
Defendant doth abate the Writ, for that the Church was full of the
Preſentment of the Plaintiff himſelf before the Writ purchaſed, the
Defendant ſhall not have a Writ to the Biſhop without Title made.
13
H.
If the Action be brought againſt Patron and Incumbent, and the Pa- Upon an 11-
tron doth make Default, and the Plaintiff and Incumbent be at Iſſue fue in Abate-
upon a Plea in Abatement of the Writ, viz. whether the Plaintiff was
made Knight after the laſt Continuance;. if it be found for the Defen-
dant, though the Writ ſhall abate, yet the Defendant ſhall not have
a Writ to the Biſhop, 7. H. 6. 37. b, but if ſuch Plea had been found
for the Patron, he ſhould have had his Writ, &c. Brook, Writ to the
Biſhop 30.
If a Quare Impedit being brought againſt diverſe doth abate, for Where the
that one
of the Defendants was dead before the Writ purchaſed, the Writ dorh
Defendant ſhall have his Wirit to the Biſhop. II H. 6. 53. But if Death, falle
the Writ doth abate within the ſix Months for falſe Latin, or Inſuffi- Latin, &c.
ciency of Form, the ſame is the Fault of the Clerk, and ſhall not
be peremptory to the Plaintiff; nor ſhall the Defendant thereupon
have a Writ to the Biſhop; but the Plaintiff may have a new Writ of
Quare Impedit ; and therewith agreeth 3 H. 6. 3: 31 H. 6. 15.
F. N. B. 38. b. vide 38 AN. Pl. 9. Paſch. 40 Eliz. Sir Hugh Port-
man's Cafe. 7 Coke 27. Contra 13 H. 4. 7. So if the Writ doth abate
for Miſnoſmer of the Plaintiff or Defendant, if the plaintiff doth con-
fefs it, the Defendant ſhall not have a Writ to the Biſhop, for it may
be the Fault of the Clerk in writing of it, and therewith agreeth
F. N. B. 38. b. vide 31 H. 6. 15. And it is ſaid, that if the Writ
,doth abate for Form, the Plaintiff ſhall never have a Writ to the Bi-
ſhop. Trin. 8 7cc. Wallop v. Murrey. Brownlow and Gouldsborough
i Part 162. Quære. However, generally, if the Writ be not well Upon Abate-
brought it will abate, and then the Plaintiff will not be only prevent- rally Defer-
ed from obtaining any Judgment, and of having a Writ to the Biſhop, dant ſhall
bụt the Defendant ſhall have it. Paſch. 40 Eliz. Sir Hugh Portman's
Caſe. 7 Coke 27. Fenkins Cent. 2. Caſe 85.
Although the Merits of the Caſe may not ſometimes come into Where a Ti-
Queſtion thro' Error, Exception, &c. and ſo he that hath no good tle muſt be
made before
Title may happen to have the Preſentment, yea, and as the Cafe a Writ.
may be, carry thereby the Advowſon alſo, yet Hobart faith, that a
Writ to the Biſhop can never be had without a Title appearing to the
Court, and particularly that if the Defendant doth never appear, or
doth make Default, at the grand Diſtreſs return’d, yet the Plaintiff muſt
make a Title for Form-fake, Colt and Glover's Cafe. Hobart 163. 10
H. 6. 4. b, and this ſaid to be according to what was practiſed. 7 El.
Dzer 241. But yet 'tis faid, that if onc of two Defendants do make
Default
have the
Writ.
ز
2
286 The Clergy-Man's Law: Or, Chap. XXVII.
ég c. 111 Dua-
Where Bi-
Default.
Title upon
Nonfuir.
Judgments, Default at the grand Diſtreſs, and the other doth plead in Bar, a Writ
rez\mpetits.
to the Biſhop Thall be awarded for the Plaintiff by the Statute of
Marlb. c. 12, without Title made. Jenkins 2. Caſe 85.
However in a Quare Impedit againſt the Biſhop, and others, if the
hop appcars, others make Default, and the Biſhop doth appear, altho' the Plaintiff
thers make thall not have a Writ to the Biſhop againſt the others that make De-
fault without Title, yet if he declares againſt the Biſhop, this ſhall
be a ſufficient Title againſt the others. 10 H. 6. 4. b. Alſo if the
Plaintiff be Nonfuit after Appearance, the Defendant muſt make a Ti-
tle at leaſt for Form-fake; by Hobart, in Colt and Glover's Cafe, Ho-
bart 163, and by Coke. Paſch. 40 Eliz. Sir Hugh Portman's Cafe.
7 Coke 27. 9 H. 7. 4. b. 11 H. 6. 8. 2 H. 5. 6. Yca, and tho' the
Caſe be ſuch, that the Defendant cannot make a Title, becauſe one of
thc Defendants is alſo Plaintiff
, for that he holds in Coparcenary, fo
that if he ſhould make Title, it ſhould be contrary, to the Action,
which ſhall not be ſuffered ; yet if the plaintiff in ſuch Cafe be Non-
fuit, the Defendant ſhall not have a Writ to the Biſhop without Ti-
tle made. 11 H. 6. 8. a. So if it appears by the Declaration that
the Plaintiffs and Defendants are Tenants in Common, ſo that the
Defendant hath Right to the Advowſon, altho' the Action abates
thereby, yet a Writ ſhall not go to the Biſhop for the Defendant only,
becauſe he cannot make a 'Title in ſuch Cafe but for both, becauſe
the Title appears to be in both. 20 Ed. 3. Quare Impedit 63. And
ſo muſt the Defendant make 'Title, in caſe the Plaintiff doth diſcon-
tinue his Suit before he can have the Writ. 31 H. 6. 15. 40 Eliz. Sir
Hugh Portinan's Cafe. 7 Coke 27. b.
But in a Quare Impedit if the plaintiff doth declare, and the De-
fendant doth demur upon the Declaration, and it be adjudged againſt
the Plaintiff upon the Demurrer, a Writ ſhall be granted for the De-
fendant without making any Title, if that upon the Declaration the
Title of the Defendant doth appear. 28 H. 8. Dyer 24. b. And I
Writ to the conceive, that in all the Caſes aforeſaid, when a Writ is awarded to
Biſhop, Bar the Biſhop, the fame is peremptory, and a good Bar in another Quare
QyareImpedit
. Impedit, altho' it be brought within the ſix Months; for fo it is
ſaid to be in the Caſe of the Plaintiff's being-Nonſuit after Appearance.
40 Eliz. Sir Hugh Portman's Cafe. 7 Coke 27. b.
Secondly, As he that hath the beſt Title may not have Judgment
that obtains given for him, ſo not always he that obtains a Judgment Thall have
Judgment
Execution thereof; for the Plaintiff may have Judgment againſt ſome
have Execu: of the Defendants, and yet be barred by the reſt, ſo that he ſhall ne-
ver have a Writ to the Biſhop. And accordingly 'tis faid, that if the
Incumbent's Plea be found for him, he ſhall never be removed, altho
other Pleas be found for the Plaintiff. Trin. 8 Jac. Wallop v. Murrey.
Brownlow and Gouldsborough 1 Part 162. And on the other Hand,
if it be adjudged againſt the Incumbent upon this Plea, yet the Plain-
tiff ſhall not have a Writ to the Biſhop, until, and unleſs it be alſo
adjudged againſt the Patron. 25 Ed. 3. 34. b.
So if the Biſhop be made a Defendant, and he pleads that he claims
Biſhop is nothing but as Ordinary, the plaintiff may have Judgment againſt
him preſently, but no Exccution until he hath recovered againſt the
Or madc Di- reſt. 17 H. 7. Keil. 43. Or if the plaintiff will not in ſuch Cafe take
his Judgment, but will maintain the Biſhop to be a Diſturber, altho '
hc ihould recover againſt all other Defendants, yet if he doth not
make out a ſpecial Diſturbance by the Biſhop, but that is found againſt
Where he
may not
tion thereof.
Where the
Defendant.
ſturber.
2
him,
Chap. XXVII. The Complete Incumbent.
287
17
recover a-
him, he ſhall be totally barred; by Hobart, Mich. 15 Jac. Brick- ludgments,
head v. the Archbiſhop of York, Hobart 198. Jenkins Cent. I. Caſe supedits
.
19.
Yet we find, that where the Defendant pleaded that he had diſtur-
bed, &c. the Plaintiff had a Writ to the Biſhop upon that Plea, and
yet maintained the Defendant to be a Diſturber, upon the Account to
recover Damage. 17 E. 3. 71. a.
If there be beſides the Biſhop two Defendants or more, and Judg- Where the
ment be given againſt one upon a Nihib dicit, no Writ ſhall go to the Plaintiff
Biſhop for the Plaintiff
, until he hath Judgment alſo againſt the other. makes many
Ed. 3. 58. Or if the other Defendants plead ſeveral Pleas in Bar, he mult make
although the Plea of one of them upon Iſſue joined be found againſt Title, and
him, and for the Plaintiff, yet if the Plea of the other be tried againſt
gainst them
the Plaintiff
, he fhall never have a Writ to the Biſhop. Jenkins Cent. all.
1. Caſe 19, and Cent. 2. Caſe 58. So if the King doth recover againſt
an Incumbent that claims by the Collation of the Biſhop of the Dio-
ceſe, yet if the King hath another Qulare Impedit depending againſt the
Biſhop alone for the fame Church, the King ſhall not have a Writ to
the Biſhop againſt the Incumbent until the Plea be determined betwixt
him and the Biſhop, although that the Actions be by ſeveral Originals.
25 Ed. 3. 47. And the Reaſon of theſe Cafes ſeems to be, becauſe the
Plaintiff by making many Diſturbers in his Writ, &c.obligeth himſelf to
make Title, and recover againſt them all; and until ſuch Time as he
hath ſo done, it appears not that the 'Title is in him, for that it may
be in ſome other of the Defendants againſt whom a Recovery is not
had, and if upon Trial he be barred by one alone, his Action is gone
as to all, Mich. 30 Jac. Lord Say v. the Biſhop of Peterborough,
Brownlow and Gouldsborough i Part 161.
Yet if one of two Defendants do make Default at the grand Diſtreſs, One makes
and the other doth plead in Bar, a Writ to the Biſhop ſhall be award- Default, the
other pleads,
ed for the Plaintiff, by the Statute of Marlb. cap. 1 2. (Stat. 52 H. 3. Esco
cap. 12.). And if the Bar pleaded by the other Defendant be found
for him, he alſo ſhall have a Writ to the Biſhop; and their Clerks be-
ing inſtituted and inducted, ſhall try their Rights in an Affize, Treſ-
pafs
, exc. Jenkins Cent. 2. Caſe 85. 2 Inſtit. 126.
And in Recovery in a Quare Impedit the Plaintiff had a Writ of
Biſhop,
Inquiry of Damages, and alſo a Writ to the Biſhop; but it was ad- when.
judged that the Writ to the Biſhop ſhould abate, for that the Writ to
the Biſhop ought not to iſſue till the Writ of Inquiry be returned, un-
leſs the plaintiff releaſe the Damages, for till then Judgment is not
given upon the entire Record. The Biſhop of Glouceſter and al. v.
Veal, Noy 66.
Thirdly, Note, That as the Caſe may be, the Judgment may be Where the
given againſt the Plaintiff
, and yet he may be equally intitled in the
Execution of that Judgment, viz. to have a Writ to the Biſhop with Writ with
the Defendant, as if a Tenant in Comnion doth bring a Quare Impe- the Defen-
dit againſt another that is Tenant in Common of the Advowſon with
himſelf, and this doth appear by the Déclaration, and the Defendant
doth demand Judgment of the Declaration, for that it appears thereby
that they are Tenants in Common, upon which the Court doth abate
it: yet the Defendant ſhall not have any Writ to the Biſhop, for that
he hath not made any Title ; for though it appears by the Declara-
tion, that the Defendant hath Right to the Advowſon, yet this is in
Common with the Plaintiff, and ſo, as hath been ſaid, both ought to
have the Writ. 20 Ed. 3. Quare Impedit 67.
I
Fourth-
Writ to the
Plaintiff
may have a
288 The Clergy-Man's Law: Or, Chap. XXVII.
Wherc nci-
ther nay.
ment, ámc.
but a third
Perſon:
appears
Where not
fion.
Or if the
Jury find
Judgments; Fourthly, Note, That neither Plaintiff, nor Defendant, may have
re impedirs. Judgment or Execution, but a third Perſon, that is, no Party to the
Suit; for if in the Debate of a Cauſe betwixt a Plaintiff and Defen-
dant, it doth appear to the Court, either by the Declaration of the
have Judg- Plaintiff
, or by Pleading, or Confeſſion of the Parties, that neither of
them hath Right, but the Preſentation belongs to the King, the Court
may, nay they ought to award a Writ to the Biſhop for the King, and
without Prayer on the Part of the King; for the Court and Judges are
Wing for the the King's Counſel. But this muſt be where the King's Title
fo clear in allegatis & probatis to the Court, as that it is infallible both
againſt Plaintiff and Defendant; by Hobart 163. Colt and Glover's Cafe
,
97.7.9. b. 16 H. 7. 12. 12 H. 7. 12. u 6. 4. 71. F. N. B. 38. G
Trin. 31 Eliz. Norwood and Dennis. i Leonard 323. Hill. 21 Eliz.
Craſhfield v. Lord Dacres, i Anderſon 53. Hill. 6. Jac. B. R. Cum-
ber 0. Biſhop of Chicheſter, &c. 2. Croke 216. Dent. 2 Rep. 3, admit-
ted. But if the King's Title doth appear to be good againſt the Plain-
tiff only, or againſt the Defendant only, the Writ to the Biſhop ſhall
without Par- not be awarded for the King, unleſs the other Party doth confefs (up-
ty's Confef- on the Demand of the Court, if they have any Thing to ſay why the
Writ ought not to be awarded for the King) that they have no 'Í'itle,
and that ſuch Writ ought to be awarded. Mich. 14 Jac. Chancellor
and Scholars of Cambridge v. Walgrave, Hobart 126. Or if no Title
Title in the doth appear for the King by the Pleading, although the Jury find the
King.
Title to be in the King, when it is out of their Iſſue and Charge, the
Court is not to award a Writ to the Biſhop for the King, becauſe the
one Party or the other may anſwer to it. Trin. 31 Ē1. C. B. Nor-
wood v. Dennis, i Leonard 323.
So if in a Quare Impedit for the King, the King and Party be at If
the Plea noé' ſue, which is found againſt the King, and yet a Title appears for the
being groun- King by nient dedire of the Party, the Court ſhall not adjudge for the
Record, Exc. King. Hill. 6. Jac. Cumber . Biſhop of Chicheſter and Green, 2
Croke 216. So if Judgment be given in a Quare Impedit, and a
Writ of Error be brought, and pendant the Writ of Error, the King
doth bring a Writ of Right of Advowſon, upon which by Motion to
the Court, the Proceedings in the Writ of Error are itopped until
'Trial in the Writ of Right; and after the Writ of Right doth hap-
pen to be abated by Death of one of the Tenants, ſo that the Court
doth proceed to examine the Errors, and doth affirm the firſt Judg-
ment, and before the Judgment is drawn up, it is thewed that the
King had Title, vizo by the Death of one of the Tenants, (who were
Plaintiffs in the Quare Impedit, and held the Advowfon in Capite) for
which Reaſon it was that the Writ of Right before did abate ; yet the
Court ought not in ſuch Cafe, ex Oficio; to award a Writ to the Bi-
ſhop for the King, becauſe the Plea is but Matter in Fact, a bare Sur-
miſe, and not grounded upon any Matter of Record. Mich. 16 Car.
B. R. Yates v. Sir John Dryden, i Croke 589. Neither is it to be
awarded for the King, though the Title appear to belong to the King
upon Evidence, unleſs it appear to be in him alſo by the Record.
Mich. 12 Jac. Rowth v. the Biſhop of Cheſter, Moor 872.
And Note, That it is ſaid generally, that if in an Aſſize of Darrein
third Perſon, Preſentment it be found that neither the Plaintiff or Defendant hath
Right to preſent, but a third Perſon, no Party to the Writ, the Writ
the Prayer of to the Biſhop ſhall be awarded for him. 17 Ed. 3. 23. Roll's Abr.
Part 3. p. 386. T. But it ſeems by the former Caſes, that the Court
Where not
for the King,
ز
Wherc the
Writ is for a
muſt be at
are
3
:
Hill. 21 and 22 Car. 2. Vent. 2 Part. p. 3.
Chap. XXVIII. The Complete Incumbent. 289
are not bound to award it of Office, from the Reaſon that they awarded Becovery in
Quare 3m-
it for the King, but only at the Prayer of a Party, for the Courts are
vidit.
intruſted with the King's Rights, to take Care they be not prejudiced;
but 'tis not ſo of any other Perſon's Right, for they ſhall take no No-
tice of any Titic found for a common Perſon being a Stranger :- So
it is ſaid by Chief Juſtice Vaughan, and Juſtice Tyrrell, in the Cafe
Laſtly, I may add, That though the Iſſue he found againſt the Where the
Plaintiff or Defendant, yet the fame Perſon againſt whom the Iſſue is
gainſt wlium
found, may have Judgment given for him, and the Writ awarded for the Illuc is
him to the Biſhop; therefore in a Quare Impedit by the King, when found, may
have Judge
the iſſue was, whether the King had all the Advowſon or not, and
ment, in
the Jury found that he had but a third Part, but that it was the
King's Turn to preſent to the preſent Avoidance, although thiat the If
fue was found againſt the King, yet becauſe it appeared that the King King's Title
had 'Title, the Writ was awarded for him, for that the Matter that was appearing.
found was not out of their Iſſue. Mich. 14 Fac. King v. the Bishop
of Rocheſter, Roll's Abr. 2. p. 386, fame Cafe, Hobart i 19.
Perfon a-
CHAP. XXVIII.
The Effects of a Judgment in Quare Impe-
dit and Darrein Preſentment, and of
the Writ awarded to the Biſhop, &c. to
admit, &c. grounded thereupon. What is
to be done upon ſuch Writ, and what Re-
turn the Biſhop may make thereunto.
What is
Judgment
dit.
Udgment being given, the Effects thereof are, That in an Alize of
Darrein Preſentment, he that prevails ſhall recover the Preſent- recovered in
ment, and ſix of the Jury who had View of the Church, may put the Datrein Pre-
Plaintiff into Poffeffion if he doth recover, &c. In a Quare Impedit he What in
that recovers, recovers the Advowſon as well as the Preſentment, as Quarc Impe-
hath been ſaid, Brownlow and Gouldsborough. I Part 158, 159,
160. 3 Bulſtrode 38. Regiſter 30. a. But in both Writs by the very Upon an ab-
Judgment abfolutely given, that is againſt all Parties, there is this folute Judg-
Effect of the Judgment, 'That the Incumbent that was in the Church ment the
when the Writ was brought, if named in the Writ, is actually remo- if named, is
ved ; but if not named in the Writ, he ſhall never be removeds by actually re-
Dodderidge and Coke. Trin. 13 Jac. B. R. Harris v. Auſtin, 3 Bul- moved.
ſtrode 38. Jenkins Cent. s. Cale 18. Brownlow and Gouldsborough
1. Part 158. 46 Ed. 3. fo. 13. Marſhal's Cafe, 9 H. 6. 56. b. Cort and
the Biſhop of St. David's Cafe, 1 Croke 348. And this was one of
the Cauſes, that after the Statute of Ieft. 2. cap. 5. it ſhall be en-
quired if the Church be full, and of whoſe Preſentment.
Сcc
If
290 The Clergy-Mari's Law: Or, Chap. XXVIII.
Recovery inz
proir.
and upon
the other
and a new
Title.
If two Patrons do prefent, and the Biſhop doth refuſe both their
Quare 3m. Clerks, and one of the Patrons doth bring. a Qzare Impedit againſt the
u Biſhop, and pendant the Writ, the other Patron doth fue à Duplex
Where two Querela in thic Arches againſt the Biſhop, upon which Proceſs is made,
Patrons prc-
fcnt, and one
upon Default of the Biſhop; the Archbiſhop doth receive the
brings Quare Clerk of this Patron, who is inſtituted and inducted, and in by fix
Impedit, and
Months; and afterwards the Plaintiff in the Quare Impedit doth reco-
ſues Duplex
ver, he ſhall by his Writ to the Bifhop remove the Incumbent of the
Querela.
other Patron that came in pendent the Writ, although not named in
the Writ, Trin. 41 El. B. R. between Bennet and Edwards, Roll's
Abr. 2. p. 391, and Moor 572. And though the Incumbent named in
the Writ doth reſign pendent the Writ, and after the Judgment is
preſented, inſtituted and inducted into the fame Church, for which the
Action is brought, yet by the Judgment he is fo renioved, that the
Clerk of him that recovers ought to he received. Mich. 28 El.C. B.
Moor and the Biſhop of Norwich, 3 Leonard 138. Or if the Incum-
Reſignation, bent againſt whom the Writ is brought doth reſign pendente lite,
and then doth come into the fame Church by a new 'Title ; yet it ap-
pearing to the Court, that the Clerk is the Perſon againſt whom the
Recovery is had, by the Judgment he ſhall be removed, L. 5 E. 4.115,
116, vouched in Moor and the Biſhop of Norwich's Cafe, 3 Leonard
138. But in this Cafe the Clerk had his new Title upon the Account
of a Lapſe pendente lite, from the Biſhop, who was alſo made a De-
fendant in the Writ. And tho' the Biſhop be not made a Party to
the Suit, if the Plaintiff bc Nonfuit, ſo that the Defendant hath a
Writ to the Biſhop, if the Biſhop had collated after the Judgment,
tho' before the Writ ſerved, the ſix Months being expired, Quære,
Whether his Clerk ſhall be removed, the Judgment being had, tho’
not executed within the ſix Months? But 'tis ſaid in this caſe, that
the Plaintiff ſhall recover his Damage but for half a Year. 2 Inft.
363.
If a Writ be brought againſt Patron and Incumbent after the ſix
Incumbent Months are paſſed, and they do not plead the Plenarty before the Writ
plead Pic- brought, but ſome other Matter in Bar, upon which Iſſue is joined,
and a Verdict given for the Plaintiff, the Incumbent ſhall be removed
by the Judgment given upon this Verdict, becauſe the Incumbent was
Party to the Writ, and might have pleaded the Plenarty. And Note,
That in this Cafe it was not enquired when the Church became
void, but quod tempus ſemeſtre modo tranſivit, and yet not material to
enquire of it for the Cauſe aforeſaid, and alſo becauſe when the Jury
find quod tempus ſemeſtre modo tranſivit; and Damages for a half Year,
it ſhall be intended that the ſix months paſs pendent the Writ, and
not before the Action brought. Hill. 9 Car. B. R. Biſhop of St. Da-
vids and Lort's Cafe affirmed in Error, Rall's Abr. 2 part 392. And
if the Writ be brought within the ſix Months againſt Patron and Ordi-
nary, tho” the Recovery be after, yet the Incumbent ſhall be remo-
ved, 39 Ed. 3. 15, but in this caſe the Biſhop was found to be a Di-
ſturber. And if any that are made Defendants in the Action, do get
Clerk recei- their Clerk into the Church pendente lite, ſuch Clerk by the Judgment
ved pendente is ſo outed, that the Clerk of him that recovereth, may and ought,
upon the Writ to the Biſhop, to be received. Boot on v. the Biſhop of
Rocheſter, Hutton 24. Mich. 3 7ac. Boſwell's Cafe, 6 Coke 51 Fenz-
kin's Cafe 7. Cent 7. 14 H.6. 68. b.
Where the
narty.
i
lite.
If
Chap. XXVIII. The Complete Incumbent.
291
Quare 3.112
pedit.
If the King doth preſent by Uſurpation, and a Writ is brought a- fiecovery in
gainſt his Incumbent, who is only inſtituted, (for the Writ doth not
lie againſt the King) and pendent the Writ, the King doth preſent an-
other, who is inſtituted and inducted, if the plaintiff doth recover, King's Clerk
the ſecond Clerk ſhall be removed by the Judgment, for hc comes remored.
in under the Title of the Plaintift. Nich. 3 Jac. 6 Boſwell's Cafe, 6
Coke 52. So if pendent a Quare Impedit verf. J. S. the Plaintiff be so upon Re
outlawed, upon which the King doth preſent, and his Clerk is inſtitu- veriál of an
Outlawry..
ted and inducted, and after the Outlawry is reverſed, ſo that the Pa-
tron doth recover in the Ozare Impedit, he ſhall by the Recovery out
the Incumbent of the King ; for now by the Reverſal of the Outlaw-
ry, the Preſentment of the King appears to be without Title. 30 El.
B. R. Cornwalls Cafe, Roll's Abr. 2 part 391. Gouldsboroug!? 44, 105,
and ſo the King's Incumbent (the Outlawry being reverſed) ſhall be
removed, altho’ the Outlawry was before the Writ purchaſed, and al-
tho’the Incumbent was not named in the Writ, for that he was pre-
fented after the Writ brought againſt another Diſturber. Mich. 16 Car.
B. R. Resbie and Powle's Cafe, Roll's Abr. 2. p. 391.
And yet when the Queen's Incumbent (being inducted after a Writ
brought againſt him) did reſign, and the Queen pendente lite preſent-
ed another, the Plaintiff recovering ; it was held by Anderſon and
Windham, Serjeants of the Queen, Serjeant Barber, Gerrard Attorney-
General, and Brooin Sollicitor, that the laſt Incumbent being in by 6
Months, is not removeable upon ſuch Recovery, by a Writ to the
Biſhop with a Commandment in it to remove the Clerk named in the
Writ of Quare Impedit
, and every other Incumbent; becauſe, he that
was laſt admitted was not Party nor Privy to the Judgment, nor to
the Writ: But to this, Dyer faith, that it ſeems that this Opinion is not
Law, altho' there had been twenty Incumbents ſucceſſively pendent the
Writ. Pafch. 21 El. C. B. Dyer 364, and Rolle faith, that he knew
it adjudged according to Dyer's Opinion, Harris and Auſten's Cafe,
Roll's I Rep. 213. And therefore, Anderſon (taking Notice of what
is reported as to his Opinion in Dyer) doth better explain himſelf in
Beverly and Cornwall's Cafe, Mich. 30 and 31 Eliz. Gouldsborough
105, ſaying, that he and Gerrard held, as he then alſo faid he did, that
if a Clerk doth come in under the Title of the Plaintiff, and ſince the
ſame, then he ſhall be removed ; but if he come in by Title Para-
mount, he ſhall not be removed; by which he ſeems to grant, that if Clerk comes
the Queen's fecond Incumbent doth come in upon the fame Title that in by Title
the firſt came in upon, he ſhall alſo be removed.
pendente lite.
So it is ſaid, That if a Stranger, viz. he who is no Defendant in the When a
Writ, doth preſent pendent the ſame, his Clerk ſhall be removed if Stranger who
hath good
the plaintiff doth recover ; by Brownlow and Gouldsborough I p. 159.
Right pre-
But this is to be underſtood if the Plaintiff hath good Title, Boſwell's ſents Pen-
Cafe, 6 Coke 51. For if a Stranger to the Writ who hath good dente lite.
Right, preſenteth his Clerk pendent the Writ, and his Clerk is admit-
ted, and inſtituted, he ſhall not be removed, or if he preſent the ſame
Clerk that was adjudged a Diſturber ; for then by ſuch Device the
rightful Patron may be defeated of his Préſentment, and that was one
of the Cauſes, that after the Act of Weſtm. 2. cap. 5, it ſhall be en-
quired by the Jury, if the Church be full, and of whoſe Preſentment,
to the End it may appear whether the Plaintiff shall recover his Pro-
ſentment or not. Mich. 3. Fac. Boſwell's Cafe, ó Coke st. 18 H. 7.
Keil. 40, 2 Cro. 92,
Ссс 2
But
Where a
Paramount
id
292
The Clergy-Man's Law: Or, Chap. XXVIII.
Recovery in
Scire Facias
to the la
fcntment.
be recover-
ed.
But we find it ſaid by Twiſden Jubice, and not denied by any,
Quare Jims that where there is an Incumbent who is not Party to the Action,
there ſhall not be a Writ awarded to the Biſhop without a Scire Faci.
as firſt ſued againſt ſuch Incumbent ; for that res inter alios acta alteri
cumbent if nocere non debet, and it is convenient that one ſhould be ſtript of his
no Party. Poſſeſſion without any Action brought againſt him; and altho' the In-
cumbert may have Notice of his Action, yet he hath no Day in Court
to defend his Title ; and this would be a Means to encourage Perſons
to bring Adions for to recover Churches againſt Strangers, which
ought not to be ſuffered. And he ſaid, that Boſwell's Cafe, in 6 Coke
48. b. had been often denied for Law, and he himſelf kuew that a
Writ of Error was brought to reverſe it, and the Error aſſigned in the
Point in Law: But that Writ abated, and Coke in the End of the
Cafe ſeems to confute the principal Judgment. Mich. 14 Car. 2. B.R.
Hall v. Broad, 1 Siderfin 93. See more fully of this matter after in
this Chapter.
Quare Impedit If a Man doth bring a Quare Impedit the Church being full of his
his own Pre-own Preſentment, and the Title is found for the Defendant, yet the
Clerk of the Plaintiff ſhall not be removed, for that he might have a-
bated the Writ upon the Church's being full of the Preſentment of
the Patron himſelf at the Day of the Writ purchaſed. 19 H. 6.
68. b.
Damages to Another Effect of a Judgment given in a Quare. Impedit, or Dar-
rein Preſentment, is, That he for whom the Judgment is given thall
recover as well his Damages, as his Preſentment and Advowſon, as
hath been before faid: For it hath been enacted, That in Writs of
Quare Impedit, and Darrein Preſentment, Damages thall be awarded,
that is, to wit, ff the Time of dr Months pals by the Diſturbance
of any, ſo that the Bilop doth confer to the Church, and the sery
Patron loleth his preſentation for that Time, Damnages thall be a
warded for two years Walue of the Church ; and if the air months
be not pated, but the preſentment be deraigned within the ſaid Time,
then Damages thall be awarded to the balé Year's Walue of the
Church; and if the Diſturber have not whereof be may recempence
Damages, in caſe where the Bithop conferreth by Lapſe of Time, he
ſhall be punished by two Years Ampficonment: and if the advoman
be deraigned within the half year, yet the Diturber fhall be punilhed
by the Impriſonment of half a year. Stat. Weſt. 2. cap. s. 13 Ed. 1.
Upon Com In a Quare Impedit for a Chantery, where by Compoſition if the
poſition to Patron preſented not within a Month, then the Biſhop ſhould preſent
preſent to a
Chantery.
after the Month, altho' the Biſhop hath not preſented, yet the Patron
ſhall recover his Damages for two Years; for this is not like a Benefice
with Cure of Souls, where the Patron may preſent after Lapſe is
come to the Biſhop, if the Church be not full, for here by Compoſition
after the Month, the Patron hath loſt his Preſentment. 13 Ęd. 4. 3.
Where upon In caſe the Plaintiff in a Qzare Impedit be Nonfuit after Appearance,
Defendant by which the Defendant hath a Writ to the Biſhop, and fo the Court
are not informed by the Inquiry of a Jury of the Value of the Church ;
Damages of the Gourſe in ſuch caſe is to award a Writ to the Sheriff
, to enquire
and where of what Time the Church became yoid, what is the Value thereof, or
whether it remain void or not, and if it be full, of whöfe Prefentati-
on, c. And then if the Sheriff doth make Return; that the Church
is full by the Collation of the Biſhop, tho' the Defendant doth pray to
have Damages of the Value of two Years, yet if it appear that the
Judg-
Mall have
Iwo Years.
2
Chap. XXVIII. The Complete Incumbent.
293
pedit.
4.
Double Da-
Judgment was given within the fix Months, he ſhall have Damages of Recovery in
Quare Sin
the Value of half a Ycar of the Church only ; the Reaſon is, becauſe
the Biſhop's Clerk coming in within the fix Months ſhall be removed,
and the Defendant's Clerk received: But if the Collation be for Lapfe
after the ſix Months expired, and the Judgment was not given within
the fix Months, Damages of two Years Value of the Church ſhall be
given to the Defendant, becauſe his Turn is loft. 24 Ed. 3. 25. 11
H. 80. Yet even in this Cauſe, if the Patron will at his Peril pray
a Writ to the Biſhop, vize when the Biſhop hath after the ſix Months if the Patron
collated for Lapſe, he ſhall not have Damages of two Years Value of pray a Wric
the Church, but only of half a Year, for the Court cannot grant both in the Bi-
a Writ to the Biſhop, and Damages for two Years. 39 Ed. 3. 15. II
H.
4.
80. Yet 'tis faid, that when they were at Iſſue in a Quare 1112-
pedit, and the Jury found that the Church was void at the Time when
they were charged, and that at the Time of the Verdict the Church
was full by the Collation of the Biſhop by Lapſe, the Plaintiff recover-
ed his Preſentment and Damages according to the two Years Value of
the Church, altho' that the Defendant alledged that the Plaintiff had
recovered Damages to half a Year's Value of the Church in another
Quare Impedit againſt another Perſon. 43 Ed. 3. 10. Albeit the Bi-
Hop hath not collated, yet if he hath jus Conferendi, the Plaintiff
mages only
fhall, if he will recover double Damages within this Statute; but if where the
the fix Months be paft, ſo as the Biſhop hath juſt Title to collate by Jofes his
Lapſe, yet if the Church doth remain void, the Plaintiff may at his Pe- Preſentati-
ril pray a Writ to the Biſhop; but then he ſhall not recover Damages on.
but for half a Year only, becauſe he ſhall recover his Preſentation.
So it is in the Plaintiff's Election, either to loſe his Preſentation, and
have double Damages, or to have his Preſentation and ſingle Dama-
ges i
for the Plaintiff in 110 Cafe can have double Damages but where
he loſeth his Preſentation. 2 Inſtitutes 363. But we find a Cafe re-
ported, That a Quatre Impedit being brought againſt three Defendants, Q. If Dama-
two of them demurred, and the third pleaded to Iſſue, which is tried ges for half
and found for the Plaintiff; and the Jury who tried the Iſſue inquired, Church re-
and found the Value of the Church, and that it was adhuc vacant, and maining -
taxed the Damages for half a Year, and Judgment is given for the pen to the
Plaintiff as well upon the Demurrer as upon the Iſſue; and it was Preſentati-
moved, that the Church continuing void, fo that the Plaintiff might have on.
the Fruit of his Preſentation, that he ought not to recover Damages
for half a Year; And the Prothonotaries laid, that it is the conſtant
Practice, that the Plaintiff ſhall not recover Damages for half a Year
where the Church continues void, and altho' that the Jury tax Dama-
ges, yet they enter a Renrittitur of the Damages where the Church is
void; and that they would have done it in this Caſe of Courſe with-
out troubling the Court, if the Parties had applied to them. Trin.
34 Car. 2. C. B. Holt v. Holland, 3 Levinz 59. But Quære, If the
Report of this Cafe be not miſtaken, ſince by the Statute of Weſtm. 2.
cap. 5, the half Year's Value is given, altho’the Church remained void
and open to the Plaintiff's Preſentation ?
Notwithſtanding this Statute, if Judgment be to recover the Value
of the Church but for half a 'Year, when the fix Months are paſſed,
this is no ſuch Error as the Defendants ſhall take Advantage of; for
it is for his Advantage, and therefore is not by him afſignablc for Era
ror. Jenkins Cent. s. Cafe 36.
D.a.
294
The Clergy-Man's Law: Or, Chap. XXVIII.
Recovery in
pcdit.
up-
tains the Bi-
Top a Di-
Iturber.
Amerce-
ment of a
Damages are not to be recovered by this Statute of every Defen-
Quare 3 ms dant; for if the Biſhop be made a Defendant among others, and in
u his Plca doth claim nothing but as Ordinary, and the Patron doth not
Damages are maintain him to be a Diſturber, but prays his Writ to the Biſhop, the
a Diſturber. Suit betwixt them is at an End; and the Patron having the Effect
thereof as to the Biſhop, he ſhall have no Damages againſt him, be-
cauſe the Biſhop is not convicted of any Wrong; by Hobart, Mich. 15
Jac. Brickhead v. the Archbiſhop of York, Hobart 198. And by the
Statute, Damages are to be recovered againſt a Diſturber. 2. Inft.
363. But if the plaintiff be at Iſſue with any other of the Defen-
dants, and the Title is found with the Plaintiff, thoſe other Defen-
dants ſhall alone anſwer the Plaintiff his Damages ; for the Enqueſt
ſhall not paſs betwixt the Plaintiff and the Biſhop, altho’that Iſſue
on the Diſturbance be joined with him alſo. Jenkins Cent. I. Caſe
So if the Pa- 19. But when the Biſhop, doth plead that he claims nothing but as
tron main: Ordinary, and the Patron doth chuſe to maintain him to be a Diſtur-
ber, if it be found againſt the Biſhop, altho' the Patron doth recover
againſt the other Diſturbers as well as the Biſhop, yet he ſhall recover
Damages againſt the Biſhop alſo; at leaſt, when the Writ is brought,
and a Recovery had againſt the Biſhop only, Damages are to be reco-
vered againſt him : So a Writ being brought only againſt the Biſhop,
for that he did refuſe the Patron's Clerk, and a Recovery was had
againſt him, the Judgment was, that the Biſhop ſhould be in Miſe-
ricordia, that is, amerced, and every Amercement of a Biſhop is sl.
Hill
. 32 El. B. R. Specot's Cafe, Coke 5, Part 58.
Biſhop 5 1.
If a Quare Impedit be brought againſt the Biſhop, and he ſaith that
Upon Iſſue, he claims nothing but as Ordinary; and then the plaintiff replies, that
able, Biſhop
he preſented his Clerk, and the Biſhop's Officer examined him, and
indu&s the found him able, and that the Biſhop would not admit. him, but
pre-
fame Clerk. fented another within the ſix Months: To which the Biſhop rejoins,
that he examined his Clerk, and found him to be illiterate, fo they are
at Iſſue, able or not able, and pendent the iſſue the Biſhop accepts, in-
ſtitutes and inducts, the fame Clerk, the Patron ſhall have Judgment to
Damages.
recover bis Preſentment and Damages, becauſe by receiving him he
doth admit him to be able at the Time when he refuſed him, and ſo it
would be, tho' the Biſhop ſhould alledge the Clerk is become able at
the latter Examination. 4 Edi 3. 25.
& If the
But whether the whole Damages, or but a Part of them, may be
whole mayn levied upon one of the Diſturbers alone when there are many, Quære.
one Dittur- And what is faid concerning the Biſhop as to Damages, I ſuppoſe holds
good as to other Diſturbers, when their Cafe is like thereto; and alſo
in all Caſes when Judgment is given againſt any one without Enqueſt
by the Jury, as upon the Abatement of a Writ, &c. becauſe then the
Party againſt whom Judgment is given cannot be convicted of any
Notwithſtanding this Statute, it was, faith Coke in Boſwell's Cafe,
Queen ſhall Coke 6, Part 28, adjudged, Pafch. 32 El. B. R. between Buckberd
not recover and the Queen, upon a Writ of Error upon a Judgment given in the
Quare Impeo* Common Pleas, and the Queen ſhould not recover Damages in a Quare
Impedit: Firſt, Becauſe at the common Law, before the Statute, no
Damages were recoverable by any in a lare Impedit, and now none
but what are given by the ſaid Statute, for the Clauſe therein which
relateth to this Matter hath two Branches; Firſt, If the Time of ſix
Months do paſs by the Impediment of any, ſo that the Biſhop doth
able or not
ber.
Wrong.
That the
con-
2
Chap. XXVIII. The Complete Incumbent.
295
p.uit.
.
mages given.
confer to the Church, and the Patron loſeth his Preſentation; c. and Recovery in
are 3 ms
the Queen is 110t within this Branch to have Damages for two Years,
becauſe ſhe cannot lofe her Preſentment by Lapſe: And the ſecond
Branch is, and if the fir Bonths be paſſed, &c. doth depend upon the
other ; and foraſmuch as the Queen is not within the firſt, ſhe cannot
be within the ſecond: And with this agree 3 H. 6. Damages 17, ad-
judged, 14 Ed. 3. Quare Impedit 54. 34 H. 6. 12 Ed. 3. Champerty
9. 18 Ed. 3. 2. And yet all Declarations in the Caſe of the King are
laid to his Damage, tho' no Damages are thereby recovered. And
Coke
faith, that 13 Ed. 3. Quare Impedit 181, which ſeems to be to the
contrary, was the Error of the Clerk or Reporter: See the Caſe of
Buckberd v. the Queen, Mich. 31, 32 Eliz. C. B. 3 Croke 261, and i
Leonard 149, where it is ſaid by Wray, that he had conferred with
Anderſon, Manwood, Periam, and Walmfy, and that all, but Periam,
who doubted, agreed that no Damages were to be given; and there
it is alſo faid, (as by Coke in Boſwell's Cafe) that the Cafe of Sir Jola iz
Thinn, Hill. 7 Eliz. C. B. Dyer 236, was but an adviſare vult. Fen-
kinis Cent. 7. Caſe 7. And Godfrey, who had ſearched the Roil of
that Caſe, affirmed, That he found there, that the Court would ad-
vife as to Damages : But there ſeems to be a Difference between
the Reports of Croke and Leonard, who both mention this Cafe of
the Queen and Buckberd; and by Coke it is ſaid, that the Judgment Judgment
was reverſed, becauſe Damages were given ; and the Opinion of the reverſed,
Judges, as reported by Leonard, are to that Purpoſe: But when he becauſe Dan
fets down the Judgment, he ſays, that the Judgment was, that the
Queen ſhould have a Writ to the Biſhop, and Damages. But Coke in
Boſwell's Caſe agrees with the Report of Croke, that the Judgment was
reverſed. And the Law and Practice is, as I conceive, agreeable to
the Report of Coke and Croke, that is, that the King recovers no Da-
mages in a Quare Impedit.
And ſome doubt, if a Biſhop be ſued in a Quare Impedit, and the For Bishop
Plaintiff be Nonfuit, whether the Biſhop ſhall recover Damages, unleſs on a Nonfuit
he could have a Writ to the Biſhop'; but by Aſhton, Danby, Newton,
and Porting, he ſhall recover Damages. 22 H. 6. 27.
Alſo the Incumbent againſt whom the Writ is brought recovering, For the In-
ſhall have Damages, for he cannot have a Writ to the Biſhop, Brown- cumbent and
low and Gouldsborough i Part 159. And 'tis faid, where Patron and Patron, Esco
Incumbent plead the fame Plea, both ſhall recover Damages ; and in
that Cafe Judgment being againſt them, both ſhall pay Damages. 46
Ed. 3. 15:
Tho' Damages be given by the aforeſaid Statute of Weſt. 2. cap. 5, Plaintiff
yet the Plaintiff (if he will) may take the Judgment at the conimon may take
Law, and leave the Benefit of Statute. Hill. 32 El. Specot's Cafe,
Judgment at
Coke 5.58.
Alſo, there is this Effect of a Judgment given in theſe Writs; that That the
the Plaintiff or Defendant that doth recover, ſhall (as hath been before Recoverer
ſhewed) have a Writ to the Biſhop to admit his Clerk, Winchcomb Writ to the
and Pulleſtor's Cafe, Hobart 103, for the Defendant; if it be found Biſhopto ads
for him, ſhall have the Writ as well as the plaintiff
, had it been found mit his
againſt him. Roll's 2 Abr. 386. Vaughan 7. And yet in divers Caſes
a Patron máy recover his Damages, and yet not have a Writ to the
Biſhop to admit his Clerk, as if he whoſe Clerk is inducted be ſued in
a Quare Impedit, and the Plaintiff is Nonfuit, the Defendant ſhall
.
have Damages, yet he cannot have a Writ to the. Biſhop, becauſe
the
common
Law.
2
296
The Clergy-Man's Law, Or: Chap. XXVIII.
Patron may
out a Writ
to cic Bi-
Recovery in the Church is full of his own Clerk. So in a Quare Impedit, if the
Duare Zlım: Defendant doth cntitle hinfelf to hold the Church as appropriated, or
pedit.
to hold it as a Donative, free from the Biſhop's Inſtitution, and the
Plaintiff be Nonſuit, the Law is the fame. 22 H. 6. 27. But when
one doth recover in a Quare Impedit, altho' that no Writ be awarded
for him to the Biſhop, yet he that doth recover may preſent, 46 Ed.
3. 14, but not before he hath recovered, if the Church be full.' And
if upon a Preſentment made, the Biſhop will admit and inſtitute his
Clerk, and he be inducted, it is good ; for after Judgment the Incum-
bent is Debito modo amotuls, and the Writ is not to remove the for-
mer Clerk, but is Non obftante reclamatione of the Incumbent, &c.
and is but an Execution of the Judgment, Rudd v. the Biſhop of Lin-
coln. Hutton 66. Trin. 13 Jac. Harris v. Auften. 3 Bilſłrode 38.
and Mich. 12 Jac. B. R. Whiſtler v. Singleton, 1 Roll's Rep. 62.
If
upon
the Admiſſion and Inſtitution of the Clerk of him that re-
preſent with-
covers without a Writ to the Biſhop, to remove the preſent Incumbent,
the firſt Clerk doth bring a Suit in the Court of Arches or Audience,
hop.
as for a Super-inſtitution, a Prohibition lies, and is grantable at the
Prayer of the Clerk of him that recovered ; and this holds good, altho
that a Writ of Error was brought upon the former Judgment; for
without a Writ to the Biſhop, the Patron may preſent, and the Inſti-
tution will be no Super-inſtitution : But (as Coké faid) the firſt Incum-
bent doth continue Incumbent de fatto until the laſt Incumbent be
inſtituted. Mich. 12 Jac. B. R. Whiſtler v. Singleton. Roll's i Re-
ports 62. And accordingly 'tis faid of him, Mich. 12 Jac. B. R. in
Grange and Howlet's Cafe, Roll's 1 Rep.61. That if the Incumbent
be removed in a Quare Impedit, the plaintiff ſhall not have the mean
Profits, and that the Law is the ſame in a Writ of Error; and by
Coke in Harris and Auſtin's Cafe, Roll's i Rep. 212, the Incumbent
againſt whom a Recovery is had, before a new Incumbent is admit-
ted, or a Writ fent to the Biſhop, may reſign, and then the Ordinary
ſhall give Notice of ſuch Reſignation to the Patron that hath reco-
vered; or if the Patron that doth recover pleaſeth, it ſeems he may
ſuffer the Clerk, againſt whom the Recovery is, to continue Incumbent
for Life, notwithſtanding that the Patronage is reveſted in him that
recovered by the Judgment; by Coke, Dodderidge and Haughton.
But what is ſaid, that the Perſon that recovers may preſent, &c.
when the Pa- without a Writ to the Biſhop, is true in the Caſe of the plaintiff only
tron may fo when he hath Judgment againſt all that he hath made Defendants,
preſent.
19 H. 6. 68.b, and in caſe he hath named the Incumbent in the Writ,
if he was Incumbent before the Writ brought, for otherwiſe ſuch In-
cumbent ſhall not be renioved; and if the Patron in ſuch Cafe ſhould
preſent his Clerk to the Biſhop, and the Biſhop ſhould inſtitute him,
&c. all is void, the Patron in ſuch Cafe recovering only the Advow-
fon, not the Preſentment, and ſo the Inſtitution is to a full Church.
9 H. 6. 56.b.
When a Writ is awarded according to the Judgment, it is regular-
Writ, to
whom to be ly to be directed to the Biſhop of the Dioceſe in which the Church is;
Awarded and altho' the Biſhop be made a Defendant in the Writ, if in his Plea
he claims nothing but as Ordinary, upon which Plca Judgment is
given againſt him, with a Cellet Éxecutio ; and after Judgment is
given alſo againſt the Patron, and a Writ to the Biſhop granted againſt
him, yet this Writ may be directed to the ſame Biſhop, altho' that he
be Party to the Action, for that he is not found to be a Diſturber, Bof-
well's
How and
Chap. XXVIII. The Complete Incumbent.
297
7.
litan certi-
out of his
well's Cafe, 6 Coke 5 1. New Entries 494, or the Writ in this Cafe may tarit to the
(as it is ſaid) be awarded to the Metropolitan, becauſe the immediate Biſhop,
**
Ordinary is Party to the Action, 8 H. 4. 22. b, but there was found
that the Biſhop had collated by Lapſe to the Church, Contra 5 H.
22. And ſo if the Writ be againſt the immediate Ordinary, upon that
Reaſon only it ſeems that the Plaintiff is at his Election to have his
Writ to him, or to the Metropolitan; for when a Writ was brought
againſt the Biſhop, Archbiſhop, and other Defendants, (the Biſhop
having admitted the Clerk of the other Defendants before the Writ;
and not otherwiſe than according to his Duty) and the Archbiſhop plea-
ded that he claimed nothing but as Metropolitan, and the Biſhop
that he claimed nothing but as Ordinary, and ſo the Biſhop no Diſtur-
ber, and the Archbiſhop equally charged with him as Party, yet the
whole Court after ſeveral Motions was clear of Opinion, that the
Party was at his Election, and that the Writ (as was done in this
Cafe) was well awarded to the Metropolitan, and only upon the Rea-
ſon of the Biſhops being made Party in the Writ. Pafch. 14 Jac. B.
R. Grange and Denny's Cafe, 3 Bulſtrode 174. For which were al
ſo cited, 8 H. 4. fol. 22. Old Buok of Entries, fol. 278, and 478, and
New Book of Entries, fol. 898, 501, 507, 505, and 599. 38 Ed. 3. fo. If the
12. Jenkins Cent. 8. Cafe 36. But it ſeems ſtrange that the Biſhop Fole mis
ſhould loſe his Right of Inſtituting, only by being named in the Writ Right of Ini-
ftituting.
wrongfully, and without Neceſſity, Quære.
When he that recovers hath had a Writ to the Metropolitan, he
If Metropo-
cannot afterwards have a Writ to the immediate Ordinary, and if the fies the
Writ be awarded to the Metropolitan, and he doth certify that the Church is
Church is out of his Juriſdiction, and that the Biſhop is out of the
Juriſdi&tion,
Realm, and hath conſtituted a Vicar-General to do all Things for him, &c.
the Judges are not bound to take Notice that he hath made a Vicar-
General, and till they are ſufficiently certified thereof, they cannot
write to him, but to the Biſhop, who is the immediate Officer of the
Court ; by Thorp. Br. Ar. Brief al. Evefq. 12. But if the Biſhop
doth plead that he claims nothing but as Ordinary, and the Plaintiff
doth not pray Judgment, but doth proceed for a Recovery againſt the
Biſhop, and the Biſhop be found a Diſturber, the Writ ought to be
granted to the Metropolitan, upon the Prayer of the Plaintiff. Temp.
Ed. 1. 83. Contra 30. Rol. 2 Abr. 389.
Or if the Biſhop hath collated by Lapſe, and a Writ being brought In what Ca-
againſt him and his Incumbent, the Biſhop doth plead that he claims ſhall be a
nothing but as Ordinary by Lapſe, and the Incumbent doth plead the warded to
Biſhop's Title by Lapfe; the Plaintiff recovering ſhall upon his Prayer
have the Writ awarded to the Metropolitan, 19 Ed. 3. Quare Impe-
politan.
dit 153. 5 H. 7. 22. 8 H. 4. 22. b. And ſo in all Cafes, when the Bi-
ſhop doth in his Plea make a Title to preſent, and Judgment is gi-
ven againſt him, the Writ ſhall be awarded to the Metropolitan, or
Guardian of the Spiritualities at the Prayer of the Plaintiff, Br. Ab.
Brief al. Evefq. 6. Temp. Ed. 1. 13. Contra 30, or to the Biſhop that
is the Diſturber, if the Party will, by Coke and Dodderidge, Paſch.
14 Jac. Grange v. Denny, Roll's i Rep. 363, 397, and upon a
Judgment by a Non fumn informatus, or Nihil dicit, the Writ ſhall
Iſſue to the Metropolitan, and not to the immediate Ordinary if the
Writ be againſt him ; by Brownlow and Gouldsborough i part 159, and
by Hobart in Brickhead and the Archbiſhop of York's Caſe. Hob. 198.
F. N. B. fol. 38. But if the Biſhop that doth make Title in his Plea if the Biſhop
D dd
to be dead, &c.
the Metro-
298
The Clergy-Man's Law : Or, Chap. XXVIII.
If Archhi.
is found a
Diſturber.
When a Bi.
Writ to the to collate be dead, and a new Biſhop be alſo made before the Plain-
Burhon, Sar; tiff recovering hath bis Writ to the Biſhop, the Writ by the Judg-
ment of the Court may be awarded either to the new Biſhop, or to
his Metropolitan, at the Election of him that recovered, Mich. 22
and 23 Eliz. C. B. Dyer 194, and ſo it may be directed to either
at the Election of the Recoverer, if the Biſhop be a Diſturber and
not dead. Grange and Denny's Cafe. Paſch. 14 Jac. B. R. 3 Bul
ſtrode 174. Jenkins Cent. 8. Čaſe 36.
As the Writ to the Biſhop in theſe Cafes before put, may be award-
Shop of York
ed to the reſpective Metropolitan, and tho Biſhop of the Diocefe
waived ; ſo if the Archbiſhop of York be found to be a Diſturber,
the Writ may iſſue to the Archbiſhop of Canterbury. Trin. 3 Jac.
Roll's Abr. Part 2. p. 390. 16 Eliz. Dyer 327. Coke's Entry 496. a.
When a Biſhop's See is void, the Writ is to be directed to the Guar-
Esc. is void. dian of the Spiritualities. Paſch. 18 Eliz. C. B. Dyer 350. Pafch.
14 Jac. B. R. in Grange and Denny's Cafe. 3 Bulf. 174. And when
the Archbiſhop is Guardian of the Spiritualities of a Church, and the
Archbiſhoprick is void, the Writ ſhall be ſent to the Guardian of the
Spiritualities of the Archbiſhoprick. Mich. 6 Ed. 6. C. B. Henſion
and Stanesby v. the Biſhop of Sarum and Keble. Dyer 76. b. And fo
if the inferior Ordinary be a Diſturber, the Archbiðhoprick being void,
the Writ is to go to the Guardian of the Spiritualities of the Archbi-
ſhoprick. Temp. Ed. 1. 83. Rollºs Abr. 2. p. 390. But if a Bishoprick
being void, the Writ is brought againſt the Archbiſhop as Guardian of
the Spiritualities, and the Plaintiff hath Judgment by a Non fum. Ina
If Biſhop's formatus, and in the mean Time the See where the Church is, hap-
See is filled.
pens to be filled, the Writ ſhall be directed to the new Biſhop, for
that he is the immediate Ordinary. Mich. 5 Fac. C. B. Sir Thomas
Pelham's Cafe. Roll's Abr. 2 Part 390, and Pelham's Cafe. Noy
148. 22 Ed. 3. 13. But when the Writ was directed (the See being
void) to the Dean and Chapter, as Guardian of the Spiritualities, the
Writ not being returnable, and before the Execution of the Writ, a
To the new new Biſhop is made, it being doubted if the Dean and Chapter's Au-
Bishop, and thority to execute the Writ was not ceaſed; it was held, that becauſe
nothing was done in the Writ aforeſaid, another Writ might be da
warded to the new Biſhop, and that it might be returnable if it
pleaſed the Party, &c. Paſch. 18 Eliz. C. B. Dyer 3:50.
Recovery to
When a Perſon doth recover a Benefice that is a Donative, the
a Donative. Writ fhall go to him that ought to inſtall, or induct in that Cafe, or to
the Sheriff, to put the Clerk into Poffeffion. No. Na. Bre. 48. a.
If the Writ is awarded to a wrong Ordinary, as if to the Archbi-*
when it ought to be directed to the immediate Ordinary, or to
the Archbiſhop of Canterbury, to admit to a Church within the Pro-
vince of York; the Archbiſhop of York not being found a Diſturber,
Error quoad this is Error only in the Execution of the Judgment, and the Writ
awarding of of Error is to be brought as to this only, and thereby the Judgment
ſhall not be reverſed, but only quoad awarding of the Writ, &c. ac-
cording to Coke, in Grange and Denny's Cafe. Pafch. 14 Fac. B. R.
Bulſtrode 3 Part 178. Trin. 3 Jac. B. per Cur. Roll's Abr. 2. p.
390.
Upon Reco And Note, That if a Tryal for the Right of preſenting, be had bew
very inWales. fore the Juſtices of the Grand Seſſions in Wales, they have Power to
write to the Archbiſhop of Canterbury, as well as to the immediate
Biſhop
may be re-
turnable.
ſhop;
the Writ.
.
I
Chap. XXVIII. The Complete Incumbent.
299
admit upon
the Writ.
Biſhop, to receive the Clerk of him that recovers, if the Church be Recovery in
sinuare Jins
within his Province. Hill. 9 Car. Lort v. the Biſhop of St. Davids.
pedit.
701les 232, and 1 Cro. 342.
The Writ being awarded and brought to the Biſhop to receive the How the Bi-
Clerk of him that recovers, if the Church be void, or full only of a Thopought to
Clerk that was Incumbent before the Writ brought, and who was
made a Defendant in the Writ, the Biſhop without doubt ought to
admit the Clerk, for the Admiſſion of whom the Writ is brought ;
and fo tho' the Incumbent againſt whom the Writ was brought hath
reſigned, and be admitted again before the Writ
comes to the Biſhop.
Accordingly, when upon a Recovery in a Quare Impedit, a Writ was a-
warded to the Bishop, which was not returned, and an Alias thereupon
did iſſue forth, upon which the Biſhop did return, that after Judgment
given in the Quare Impedit, viz. after the awarding of the firſt, and
before the awarding of the ſecond Writ, the fame Incumbent againſt
whom the Action was brought, was preſented, inſtituted, and induct-
ed into the fame Church, and ſo the Church was füll; in this Cafe
it was adjudged, that the Return was not good, wherefore the Biſhop
was fined Ten Pounds, and a Sicut alias awarded upon Pain of One
Hundred Pounds. Mich. 28 Eliz. C. B. Moor and the Biſhop of Nor-
wich his Cafe. 3 Leonard 138, the fame Cafe in Gouldsborough 3.
And if
any that are named in the Writ do get their Incumbent ad-
mitted, &c. pendente lite, the Clerk of him that recovers ought to
be received by the Ordinary, ſuch Preadmiſſion notwithſtanding. Mich. Recoverer's
3. Jac. Boſwell's Cafe. Coke Part 6.51. Jenkins's Cafe 7. Cent. 7. admite do
Booton v. the Biſhop of Rocheſter. Hutton 24. And ſo if the Writ
be brought againſt the King's Incumbent, who is only inſtituted,
and pendant the Writ, another is inſtituted and inducted upon the
King's Preſentment; yet the Plaintiff having a Writ to the Biſhop, his
Clerk ought to be received, becauſe the King's ſecond Clerk cometh
in under the Title of the Plaintiff
. Mich. 3 7ac. Boſwell's Cafe. 6
Coke 51. So when (the King having preſented for Simony) a Reco-
King's Pre-
very was had againſt the Simoniacal Patron, and upon a Writ to the ſentation for
Biſhop he returned, that before the Writ accepted, (viz. after Judg- Simony.
ment) the Church was full by Preſentment out of the Court of Wards,
becauſe Livery was not ſued, &c. it was ſaid, that if in this caſe the
Ordinary had returned another preſented by Simony, under the Great
Seal, and that the former Preſentment was by the latter revoked, it
had been good; for it is an Execution of the Judgment, and may be
pleaded in Abatement of the Writ. But as this Caſe was, it was a-
greed by two Judges only then preſent, that the Judgment ought to
be executed, and that the Biſhop ſhould have Day to amend his Re-
turn, and not that a new Writ ſhould be awarded. Hill. 4 Car. C. B.
Sir John Hall's Cafe. Hetly 130.
But if a Stranger, that is, he who is no Party to the Writ, doth pre- Where a
ſent his Clerk pendente lite, it ſeems, as hath been before ſhewed in Stranger
this Chapter, that no Writ ſhall be awarded to admit the Clerk of preſents pen-
him that recovers, before a Scire Facias ſued againſt him that is got Scire Facias
into the Church; for when upon a Quare Impedit by A. againſt B. ought to be
upon the Jury's finding that the Church was full of the Preſentee of cumbent, &c.
a Stranger pendente lite, Judgment was given in this Manner.
Ideo conſideratum eft quod prædiktus A. recuperet verſus præfatum B.
præſentationem ſuam ad Ecclefiam prædi&tam qua modo plena exiſtit
Ddd 2
de
:
'
300
The Clergy-Man's Law: Or, Chap. XXVIII
.
dedit.
want of Scire
Facias.
Becovery in de prafato C. ex præſentatione, pendente Brevi predicto de Quare Im-
Quare Sims
pedit inter ipſum A. & præfatųın B. G dažna ſua, &c. habeat
Breve præfato Epiſcopo, quod non obftante reclamatique fa aut re-
clamatione prædićti C. & B. ſeu corum alterius licet idem C. ad Ec-
clefiam prædictam pendente Brevi predicto admißus inſtitutus & in
eandein Ecclefiam indu&tus exiſtit eundem C. ab Ecclefiæ prædictæ re-
woveat ac ad Ecclefia illan ad præſentationem ipſius A. idoneame
Error for perfonarum admittat. And upon this Judgment, a Writ of Error
was brought by B. againſt A. piz, by him againſt whom the Judgment
was given, against him that had the Judgment, becauſe a Writ was
awarded to remove him that came in pendente lite, that was no Par-
ty to the Suit, and that without any Scire Facias ſued againſt him
and Paphapu, Fenner and Williams, held it to be Error, for thereby
Judgment is given againſt a Stranger who is no Party to the Suit, fo
that he is to be removed without Anſwer. Mich. 3 Fac. B. R. Lan-
cafet v. Lop. 2 Croke 92. Mịch. 6 Ed. 6. Dyet Coutra. Co.
Ent. 265. Mich. 14 Car. 2. B. R. Hall v. Broad. I siderfin 93.
Church liti- And according to this, when (the Church being litigious) the Ordinary
gious, and had refuſed both Clerks, and one Patron, by bțingiąg a Duplex Que-
both Clerks rela, had got his Clerk admitted by the Metropolitan, and pendant
the Duplex Querela, the other Patron recovered againſt the Bifhop in
a Quare Impedit, which was brought before the Duplex Querela com-
menced, and upon this Recovery had a Writ' to the Metropolitan,
whereupon his Clerk alſo was inſtituted and inducted, and takes the
Profits of the Glebę, whereupon the firſt Clerk brings his Action of
Treſpaſs. And it was firſt agreed, that it was a good Return upon a
Return of Writ to the Biſhop of Quare non admifit
, that before the Receipt of
Quare non
the Writ the Church was full, and that upon ſuch Return by the Bi-
admifit.
ſhop, a Scire Facias ſhall iſſue forth, and then the Tryal fhall be be-
tween the Incumbents, upon the Plea in the Scire Facias ; but where
the ſame Biſhop doth not make any Return upon the. Writ, but doth
inſtitute and induct the Clerk, there is no Cauſe of a Scire Facias,
but the two Incumbents in Poffeffory Actions may try their Rights at
Common Law; and when a Poffeffory Action is brought, and it doth
appear to the Court in whom the Right is, the Judgment in the
Poffeffory Action of Treſpaſs, c. lhall be with the Right, and it
was adjudged in this Cafe upon Conference, and Reſolution of all the
Juſtices, that the Entry of the fecond Incumbent was good without
a Scire Facias. Hill. 41 Eliz, Bennet v. Edwards. Moor 572.
Biſhop excu But as Coke. reports the Cafe. of Lancaſter V. Low, which in his
fed having Reports he calls Boſwell's Cafe, 'tis faid; that when it is found Ex
his Warrant Oficio that the Church is full of the Prefentment of a Stranger to.
the Writ pendant the ſame, and it doth not appear whether the Stran-
ger hath a better Title than he that recovers ; yet fuch Perſon ought
to have a general Writ to the. Biſhop, and the Biſhop ought to execute
it, prevail who can, and he cannot return, upon the. Writ directed to
him, that the Church is full of another, for no. Iſſue, can be joined
between the Recoverer and hin, for he hath no Day in Court. And
altho' that the third. Perſon hath Right, yet the Biſhop is excufed, be:
And the Pae cauſe he hath his Warrant by. Procefs of Law, and then the Parties
ties may fry may try their Rights as the Law requireth. Mich. 13 fac. Boſwell's
Cafe. 6 Coke 51, and by Hobart. Pafch. 17 Jac. Sir William Elvis
and the Archbiſhop of Zorik. Taylor and Bihop. Hobart 320. Hill
.
2
their .
4 Car.
4
Chap. XXVIII. The Complete Incumbent.
ZOI
4 Car.C. B. Sir Fol:n Hall's Cafe.
Hetleg 130., And Jenkins follow- Recorere, in
ing Coke in Bofwell's Cafe, faith, That altho' the Clerk of a Stranger pedit
.
be admitted, Ge. pendente lite, yet the Clerk of him that recovers
ſhall alſo be admitted, and they two in 'Treſpafs, Ejectment; or Af- Clerks to try
their Right.
lize ſhall try their Right. Jenkins Cent. 7. Cafe 7. But Boſwell's
Cafe in this point, as hath been before ſhewed, is denied to be a
Law, i Siderf. 93, and by Hobart, if in ſuch Caſe a Writ be awarded
to the Biſhop, Non obftante reclamatione of the Defendant, the Bi-
ſhop ſhall receive the Clerk of the plaintiff without difputing the
Right of the Plaintiff
, or of him whoſe Clerk was first in the Church,
and that he that hath the better Right ſhall retain the Bencfice, ſo
that the other's Inſtitution and Induction ſhall be quil. Brickhead and
the Archbiſhop of York's Cafe. Hobart 200, 201.
So when a Recovery was had for the King upon the Title of S:-
nony,
and pendente lite, another had got the Living by a Preſent-
ment under the Seal of the Court of Wards, and the Biſhop returnod
that the Church was full as aforefaid; it was ſaid, that theſe Re- of Returns,
turns, that the Church was full before the Receipt of the Writ, are Church was
always ruled to be inſufficient, and that the Biſhop ought to execute full before
the Writ when it comes to him. Hill
. 4 Car. C. B. Sir John Hall's Receipt of
Cafe. Hetly 130. Jenkins Cent. 1. Cafe 47. Booton v. the Biſhop of
Rocheſter. Hutton 24. And yet a Caſe was to this Effed, a Quare
Impedit was brought againſt the Ordinary, Patron, and 7. S. Clerk,
and found for the Plaintiff; and further ex Officio Curia, that the
Church was full of the ſaid J. S. of the Preſentmont of the ſaid Pa-
tron, as the Defendants had pleaded, upon which the Juſtices of Nifi
prius gave Judgment for the Plaintiff according to the Statute of
Weſtm. 2, and awarded a Writ to the Biſhop, requiring him, quod li-
cet Eçcléfia plena fit de prædi&to J. S. vel non, to remove the ſaid
9. S. 1107 obftante reclamatione, &c. but this Writ was not returnable, Record of
as was ſaid, and the Record was removed into the Common Pleas, Nifius prius
and there the plaintiff had another Writ to the Biſhop, Sicut alias, c. B. and a
and returnable in Bank as it ought, (2 Inſtitutes 424, 425,) upon new Writ
which ſecond Writ the Biſhop returned, that pendant the Quare Impe- made re-
dit, and before the Judgment, it was found by Commiſſion De Me- tarnable.
lius inquirend', that the Advowſon, Gc. was held of the Queen in Queen's Ti-
Capite, and that the Title to prefent was then in her, who had pre-
tle returned,
fented her Clerk to the Church then alſo void, and which had been of the Write
void by the Space of throe Months before the Delivery of the firſt ſerved.
Writ to him, which Clerk he had admitted, &c. and the Church is
now full, fo that he could not execute this, nor the other Writ, &c.
And in this Cafe (being well debated) by the better Opinion of the
Court, the Ordinary was not ſtopped to make this Return of the Ti-
tle of the Queen, and of the Plenarty of the Church of her Incum-
bent, by any Thing contrary in the Record, becauſe the Bifhop is not
Party, nor privy to the Verdict, nor to any Plea that doth acknow-
ledge the Plenarty of the Church, by which, G. But if the Mat-
ter be falfe, which the Biſhop doth return for his Excufe of not
ferving the two Writs, the Plaintiff may have his Quare non admifit ;
and alfo the Plaintiff may have a Seire Facias againſt the firſt Ineum-
bent and him that came in pendente lite, to have Execution, and fo
the Title of the Queen fhall come into Debate. Pafch. 9. Eliz. Dyer
21. 260. In this Cafe, I fuppoſe, the firſt Clerk was not inducted,
and
and neither
/
302
The Clergy-Man's Law: Or, Chap. XXVIII.
Church full
of his own
Collation:
a
Where the
Incumbent
Recovery in and ſo the Church remained open to the King's Preſentce, elfe his In-
muare 3m- ftitution, duc. muſt be void. And ſee the Opinion of Juſtice Twiſ-
den mentioned before, that the Clerk of him who is no Party to the
Action, ſhall not be removed by a Writ to the Biſhop, but a Scire
Facias ought in ſuch Cafe to be awarded againſt ſuch Clerk. Hall v.
Broad. 1 Siderf. 93.
So 'tis ſaid, that when a Common Perſon doth recover, and hath
Writ to the Biſhop, if the Ordinary doth return, that the Church is
full of his Collation before the Writ received, it is good. Sir John
Hall's Cafe. Hill. 4 Car. C. B. Hetly 130.
Yet when a Quare Impedit was brought againſt Parſon, Patron and
is the ſame Ordinary, and pendent the Writ, the Parſon reſigned, and the Ordi-
Perſon, tho' nary gave Notice to the Patron, and afterwards the Ordinary for
a new Title. Lapſe preſented the ſame Clerk that had reſigned, the plaintiff in the
Quare Impedit having Judgment to recover, it was held that the In-
cumbent ſhould be removed (and by conſequence that the Biſhop
ſhould admit the Clerk of him that recovered), becauſe he is the Per-
ſon againſt whom the Recovery was had, altho' he came in by a new
Title by Lapſe. L. 5 Ed. 4. 115, 116, vouched in Moor and the
Biſhop of Norwich's Cafe. Mich. 28 Eliz. C. B. 3. Leonard 138.
But it ſeems to be otherwiſe, as is before ſhewed, if another Clerk
had been collated ; and yet why the Biſhop, if a Title by Lapſe was
in him, ſhould loſe it by collating fuch Clerk, I ſee not, if there
be no Fraud or Practice in the Cafe. ' And Hobart faith, that if a
Perſon, having Right to preſent to an Advowſon, doth not preſent
when the Church is void, nor is any Way diſturbed, and yet either
before the fix Months paſs, or before the Biſhop doth collate, doth
Quare Impedit bring a Quare Impedit againſt the Biſhop, and then the Biſhop doth
brought and collate in his due Time for Lapſe (as he holds in this Caſe he may)
and pleads ne diſturba pas, or that he claims nothing but as Ordinary,
yet when ſuch Patron hath a Writ to the Biſhop, the Biſhop (faith he)
may perhaps be compellable to admit the Clerk of the plaintiff in
Obedience to the Writ, and yet it ſhall not work a Removal of the
Biſhop's Clerk, but he ſhall retain the Benefice, as having the better
shall retain. Right. Brickhead and the Archbiſhop of York's Cafe. Mich. 15 Jac.
Hobart 200.
So if the Church being litigious, the Biſhop doth refuſe both Clerks,
and being made a Defendant in the Writ, doth plead the general Plea,
yet if he doth collate for Lapſe pendente lite, although the Plaintifi
doth pray his Writ to the Biſhop, and recovering hath it, and the
Biſhop thereupon doth admit his Clerk, yet the Biſhop's Collatee
upon
Trial may peradventure hold the Benefice as having good Title, al-
Biſhop be tho' the Biſhop was made a Defendant. See Chap. 24.
Upon the whole Matter, altho' the Preſentee of a Stranger be ad-
mitted pendente lite, or the Biſhop hath collated pendente lite, it is
adviſable for the Biſhop to execute the Writ when it comes to him,
becauſe it is a Queſtion, whether in either Cafe he may refuſe, and
ſhop to exe-
no Prejudice can be to him by admitting ; whereas if the Biſhop doth
refuſe to admit upon the Receipt of the Writ, and doth make a Re-
turn of the Writ, with ſuch Reaſon of his Refuſal which ſhall not
be allowed by the Court, the Biſhop may be fined, as was done,
Mich. 28 Eliz. C. B. Moor and the Biſhop of Norwich's Cafe,
3 Leonard 138, where the Biſhop for making an ill Return upon the
3
Writ,
collates.
His Clerk
Altho' the
niade a De-
fendant.
Adviſable
for the Bi-
cute the
Writ.
ز
Chap. XXVIII. The Complete Incumbent.
303
admifit.
against him.
1
the Writ brought, the Writ
Writ not executed was fined Ten Pounds, and a Sicut alias awarded Duare no:1
upon
Pain of an Hundred Pounds.
Alſo if the Biſhop doth not admit the Clerke of him that recovers A Quare non
lics
gainſt him, Hill. 9 Car. B. R. Cort againſt the Biſhop of St. Da-
vid's 1 Croke 342. So tis faid, that when the. Bifhop did refuſe to
admit the King's Clerk upon a Writ directed to him, the King brought
a Quare non admifit againſt the Bifhop, who counterpleaded the 'Ti-
tle of the King, and pleaded that he (before the King had his Judg-
ment) had collated by Lapſe, the fix Months being then paft : Not-
withſtanding this Plea, it being found againſt the Biſhop, another
Writ was awarded to the Biſhop, and the Temporalities of his Bi-
fhoprick were feiſed into the King's Hands for the Contempt. But
fee Articuli Cleri. Stat. 25 Ed. 3. cap. 6, by which the Biſhop ſhall
be fined, and the Temporalities of the Bifhop thall not be feized at
this Day in fuch Caſe. 25 Ed. 3. 22 Jenkines Cent. I Cafe. 47.
But generally, if a Qxare non admifit be brought againſt the. Bi-
fhop, for that he doth refuſe to admit the Clerk of the Patron that
hath Judgment, it is a good Plea for the Biſhop to fay, that the That the
Church is litigious betwixt the Plaintiff and a. Stranger i for they the Church is li-
Bifhop is not bound to receive the Clerk of either Party, and the
tigious, a
good Plea.
Recovery may be without Title, and by Fraud. But it is no Rlea
for the Biſhop to fay, that the Church is litigious betwixt the Plain-
tiff and Defendant in a Quare Impedit, for the Recovery determines
the Matter betwixt them, of which the Biſhop is to take Notice. 7 H
4. 26. 34 H. 6. 41. 47 Ed. 3. 11.
Alfo if the Biſhop admit and inſtitute the Clerk, and makes. Let-
ters to the Archdeacon to induct him, this being pleaded, is a good
Excufe in a Qyare non aduxifit, without faying that he is inducted,
for the Plaintiff ſhall have bis Suit in the Spiritual Court againſt the
Archdeacon, if he refuſe to induct. 38. H. 6. 16.
This Writ of Quare non admifit is to be brought in the County. Quare non ad-
where the Refuſal is, and not where the Church is. 38 H. 6. 14.
mifit, where,
And in a Quare non admiſit a Protection doth not lie, becauſe it is
grounded upon
a Quare Impedit, in which, and in a Darrein Prſent- &ion.
ment, a Protection doth not lie for the eminent Danger of a Lapſc.
i Inft. 131. 4. So it is a good Excuſe for the Bifhop in a Writ of
Quare non admifit, to ſay, that the Clerk hath not made any Requel
to be admitted. Kelw. 71.
No Prote-
:
C H A P.
304
The Clergy-Man's Law: Or, Chap. XXIX.
CH A P. XXIX.
Crroz in
Duare ms
pedit, Boc.
Of Writs of Error upon Judgments in Quare
Impedit, and Alize of Darrein Preſent
ment.
In Error a-
to be.
If it be for
Error in
Subſtance.
Error upon
A
Fter Judgment is given upon a Quare Impedit, or an Aflize of
gainſt the Darrein Preſentinent, he againſt
whom it is given may bring
King, a Peti- his Writ of Error upon the Judgment, if he be not ſatisfied there-
with : But before a Writ of Error be brought againſt the King when
he doth recover, a Petition ought to be made to the King by thoſe
who would bring the Writ of Error, that they may bring the fame
and
upon Liberty granted, they may proceed to inpeach the Judg-
ment. 23 Ed. 3. 22. Fenkins Cent. 1. Cafe 47. And by, Popham,
the Court ought not to proceed to the Examination of the Errors
without ſuch Petition made to the King ; and faith, that was the Cafe
of one Mordant, where an Infant levied a Fine to the Queen, and
thereupon brought a Writ of Error ; and afterwards, by the Reſolu-
tion of all the Judges, the Proceedings thereupon were ſtayed.
Trin. 36 Eliz. B. R. Queen and Buckberd's Caſc. i Leonard 152.
See 10 H. 4. 4, and Hurlſton's Cafe. 2 Leonard 194.
But this, as is ſaid, is to be intended where the Writ of Error is
for Error in the Subſtance of the firſt Judgment ; but if it be for Er-
ror in the Meſné Proceſs, or any collateral Matter, and not in the Bo-
dy and Subſtance of the Judgment, the Attorney General in his
Diſcretion may grant Leave to bring a Writ of Error without Petition
made to the King. Savile. Caſe 203. fol. 131.
If a Judgment be given by the Juſtices of Niſi prius at the Aflizes,
Judgment on
yet the Writ of Error is to be directed to the Chief Juſtice of the
Niſi prius to
Common Pleas, or King's Bench, &c. where the Action was brought,
and from whence the Writ of Nifi prius iſſued; for the Record af
ter the Judgment given is returned, and is remaining there. Mich.
18 Jac. Shirley v. Underhill. Hutton 41. Mich. 6 Ed. 6. Dyer
76, 77
By a Biſhop A Quare Impedit is brought againſt the Biſhop and another Defen-
and another dant, the Biſhop pleads that he claims nothing but as Ordinary ; upon
which Judgment is given againſt the Biſhop, with a Cepet Éxecutio,
for that he claims nothing but as Ordinary, and after that Judgment
is given alſo againſt the the other Defendant. The Biſhop, in this
Cafe may join with the other Defendant in a Writ of Error to reverſe
this Judgment, he being Party to the Action : For (faith Wray) the
Biſhop hath Biſhop hath Lofs by the Judgment, in that thereby the Writ ſhall be
to the Archbiſhop for Admiſſion and Inſtitution, and ſo he is outed
of his Juriſdiction in that Part. Mich. 29 and 30 Eliz. B. R. the Bi-
Incumbend ihop of Glouceſter and Savacre's Cafe. 3 Croke 65, and 3 Leonard 176.
So Paſch. 36 Eliz. B. R. Pipe v. the Queen. 3 Croke 324.
If a Quare Impedit be brought againſt the Biſhop, Patron and In-
the
Son and cumbent, and the Patron doth die pendente lite, and yet Judgment
Heir
, and the is given againſt them all, and then à Writ of Error is brought by
the
whom di-
re&ted.
Becauſe the
Lofs.
fummoned
and fevered
in Error by
Writ of Er-
ror did well.
J
lic.
Chap. XXIX. The Complete Incumbent.
305
::
.
the Son and Heir, who is alſo Executor of the Patron, if the Biſhop Erroz in
and Incumbent be named with him in the Writ of Error, they may pedit, et
be ſummoned and fevered; for as Summons and Severance ſhall be in
a Quare Impedit, fo in a Writ of Error upon it. And altho' it was
moved in this caſe, that ſuch Writ of Error was not well brought,
for that the Plaintiff in it had no Cauſe to bring a Writ of Error as
Heir, or as Executor; for he could not have it as Heir, becauſe the
Inheritance was not touched in that Action, for that the Queen being
Plaintiff, claimed only by Lapfe, and ſo affirmed the Inheritance to
be in him; and as Executor he could not bring it, becauſe he had no
Damage, for that the Teſtator had preſented, and the Incumbent was
in the Church : And here. all the Loſs is to the Incumbent, and he
could not reverſe the Judgment, for that he was fevered. But the
Court held, that the Writ of Error did well lie, for that it is to main-
tain the Incumbent in the Church, and the Incumbent altho' he were
ſevered ſhould of Neceſſity have Judgment to be reſtored; for the
Judgment is entirely to be reverſed, and the Incumbent
may
well en-
ter, for that by the Reverſion there is no Record of the Recovery a-
gainſt him. Paſch. 36 Eliz. B. R. Pipe v. the Queen. 3 Gro. 324.
If a Judgment be given in the Common Pleas in a Quare Impedit, Judgment in
and a Writ is thereupon awarded to the Biſhop for the Party who re- C. B. Error
covers, and afterwards a Writ of Error is brought in the King's Bench in BAR. S*
a-
upon that Judgment, the Court of Common Pleas may award a Su- warded.
perſedeas to the Writ awarded to the Biſhop, and ſo may the King's
Bench do alſo.
And where a Writ of Error is brought, and the Defendants thereiit Errors may
do fue a Scire Facias to the Sheriff againſt the Plaintiffs in the Writ be aſſigned
of Error to have Execution, for that they were too ſlow in the Af- uponScire
ſignment of Errors, the Plaintiff in the Writ of Error may aſſign have Execu-
Errors upon this Scire Facias, as well as upon a Scire Facias ex par-
te Querentis ad audiendum Errores, becauſe this Scire Facias brought
by the Defendant, is in a Manner in Nature of a Scire Facias to aſſign
Errors, altho' there be not any ſuch Word in it; and 'tis faid, that
they have not any other Courſe or Words in ſuch Writs. Mich. 6 Ed.
6. Dyer 76. b. Jenkins Cent. 5. Caſe 36.
But if in an Aſlize of Darrein Preſentinent Judgment is given Where in
for the Plaintiff, and a Writ is thereupon awarded to the Biſhop for Darrein Pre-
him, and alſo a Writ to enquire of the Damages, and after Writ of Writ of Er-
Error is brought upon the principal Judgment; this is not any Super- ror is no Su
ſedeas to the Writ to enquire of the Damages
, but the Sheriff may one enquiry
ſerve and return it notwithſtanding. Roll's Abr. 2. p. 491. But if a of Damages.
Man doth recover in a Quare Impedit in the Commion Pleas, and after
this is removed into the King's Bench by a Writ of Error, a Quare
Incumbravit doth lie, altho' that it doth not lie without a Judgment,
for that it is a new Original, and is a common Plea in it felf. Roll's
Abr. 1. p. 537
If a Writ of Error be brought, and the firſt Judgment be affirmed,
Damages are to be againſt the Plaintiff in the Writ of Error. Ac Damages up
cordingly, a Judgment in a Quare Impedit being given for the affirmed in
Plaintiff, and the Value of the Church found to be Eighty Pounds
per Annum, and this Judgment being afterwards affirmed upon a
Writ of Error, it was moved according to the Statute 3 H. 7. C.
10, which appoints Damages and Colts to be allowed where Writs
Eee
of
tion,
Error,
306
The Clergy-Man's Law: Or, Chap. XXIX.
maniere
pedit, Coco
ror.
7,
Erroz in
of Error are brought pro Dilatione? Executionis. The Court a:
Quare 7lm- warded that the Defendant in the Writ of Error ſhould have Da-
N mages for a Year (during which Time the Writ of Error was
depending) according to the Value of the Church found by the
Where Judg- Verdict; and ſo they awarded him Eighty Pounds, beſides Coſts. Mich.
fendant is af- 4 Car. B. R. Anonymus. 1 Croke 145. Mich. 7 Ed. 6. Dyer 77. But
firmed in Er- if Judgment be given for the Defendant, and that Judgment be af.
firmed upon a Writ of Error brought, the Defendant ſhall not have
Coſt expended in the Writ of Error upon the Statute of
3
H.
for the Statute is where Judgment is given againſt the Defendant or
Tenant, and he to delay Execution brings a Writ of Error, and the
Judgment is affirmed, that he ſhall have Coſts for delaying his Execu-
tion. But in this Cafe, Judgment is given for the Defendant, and no
Execution is to be awarded againſt him, ſo is out of the Statute,
Hill. ro Car. B. R. Bowton v. Nicholls. i Croke 401, but Mich. 19
Car. 2. B. R. Conner and Exam's Cafe. 2 Keble 266, 287, there the
Court feemed to be of a contrary Opinion, and that the Statute ought
to be liberally expounded. And if the Biſhop and Incumbent do bring
a Writ of Error, and do not prevail in it, but the Judgment is af
firmed, a Levari Facias ſhall be awarded againſt them to the Arch-
biſhop of the Province, or Sede Vacante to the Guardian of the Spi-
ritualities, for the Damages and Coſts given againſt them. Jenkins
If firft Judg- Cent 5. Caſe 36. But Note, that the Plaintiff in the Writ of Error
ment be af ſhall not recover Damages.
firmed, al-
though the
If Judgment be given in a Quare Impedit, and a Writ of Error is
latter be er- brought, upon which the firſt Judgment is affirmed, altho that the
latter Judgment be erroneous, yet the firſt Judgment remains good
Te Judgment and perfect in it felf, and ſhall not be impeached for any Error in
be reverſed, the ſecond Judgment; ſo altho' that the Judgment in a Quare Im-
Judgment
pedit, given by the Statute of Weft. 2, for the Damages, be errone-
Epifcopo Shall ous and reverſed, yet the Judgment given to have a Writ to the Bi-
ſhop being the Judgment at the Common Law, ſhall ſtand good.
Hill. 32 Éliz. B. R. Specot's Cafe. 5 Co. 57. Roll's 1 Abr. 776. But
if a Man doth recover in a Quare Impedit, and hath a Writ to the
Biſhop, and after doth recover againſt the Biſhop in a Quare non ad-
iniſit, if the Judgment given in the Quare Impedit be after reverſed,
the Judgment in the Quare non admiſit ſhall be reverſed alſo, altho
it ſeems to be for the Contempt to the King, Roll's I Abr. 777, for
Error aided that it is grounded upon the firſt Judgment, and cannot ſtand with-
by ſpecial out it.
Entry,
If the Jury give Damages and Coſts where no Coſt ought to be
given, becauſe the Statute doth not give them, and after Judgment
is entred Quod nullo habito refpe&tu of the Coſts, the Court doth a-
ward that he ſhall recover the Damages without any Releaſe of the
Coſts; this ſpecial Entry ſhall aid the Error. Pafch. 14 Jac. B. R.
Grange v. Denny. Rolls i Abr. 784.
roneous.
pro brevi
ſtand.
..
'.
.
CHAP
Chap. XXX. The Complete Incumbèrit:
307
induction
rif.rco.
CH A P. XXX.
27
Of Remedies on Refuſal of Induction , and
of
a Vi Laica removenda, and Spolia-
tion.
Court with-
on the Caſe
ز
Aving declared what Remedies, both in the Eccleſiaſtical and Remedy a-
Temporal Courts, the Law doth afford a Clerk preſented to a perſon that
Benefice, in caſe the Biſhop doth refuſe to give him Inſtitution there- ought to in-
unto. Induction being next to follow, as neceſſary to the making of duct, and re-
a Clerk compleat Incumbent of his Church, I come to ſpeak of the
Remedies the Law doth give him againſt the Perſon that is to induct
him, or give him Poſſeſſion of his Benefice, in caſe he doth refuſe to
perform what appertains to his Office in that Part.
As to which the Common Law doth declare, that the Clerk may Remedy, in
the Spiritual
have his Remedy againſt the Archdeacon (whoſe Office it is for the
moſt Part to give Induction) in the Spiritual Court, to which he is fub- outDamages
,
ject, 38 H. 6. 16, and there may force him to do his Duty, if he can- or by Action
not ſhew good Cauſe for his Refúſal, but no Damages can there be
recovered, but an Action of the Cafe may be brought at the Common
Law againſt the Archdeacon, Gc. if he refuſe to induct. Parſori's
Law. C. 14. Ford and Hoskin's Cafe. Hill. 12 Fac. B. R. 2 Croke
369. 2 Bulf. 366. Mich. 12 Jac. Pole v. Godfrey. Moor 835, and by
Haughton in the ſame Caſc. Bulftrode 2 Part 264, the fame Cafe.
Roll's i Rep. 63. Roll's Abr. 1. p. 108. But by ſuch Action at Com-
mon Law, Induction cannot be enforced to be made, but only Da-
mages recovered upon the Neglect or Delay of him that is to inz-
duct.
If a Sheriff will not put the Clerk of the King into Poſſeſſion of a
free Chapel, it is ſaid that a Quare Impedit lies againſt the Sheriff.
14
H.
And let it be noted, That the fame Courſe that is to be taken by Where Pa-
Patron of a Benefice Preſentative, when he is ufurped upon, may alſo tron of a Do-
be taken the Patron of a Donative, in caſe his Church be filled by like Remedy
Uſurpation ; for ſuch Patron may have his Quare Impedit preſentare ad by Writ, as
Eccleſiam, and declare upon the ſpecial Matter, as is thewed before, Femalive.
Chap. 22 and 23, or his Writ of Right, as his Caſe ſhall require.
1 Inft. 344. a. Parſon's Counſellor 205. But I ſuppoſe that theſe
Writs are neceſſary to be brought but at the Election of the Patron,
for that a Church Donative cannot be ſo filled by Prefentation, Infti-
tution, and Induction, as to hinder the Patron to prefer his Clerk to
the ſame, for that Inſtitution and Induction in ſuch Caſes are void;
and although an Uſurper doth put in his Clerk by Donation, yet that
will not prevent the true Patron, but that he may put in his Clerk
alſo, and then the two Clerks fo preferred, ſhall try their Rights in
an A&tion of Treſpafs, or Ejectment: But if the truc Patron pleaſe, their right,
he may in ſuch Cafes admit himſelf out of Poffcffion, and bring (as agac.
hath been ſaid) his Quare Impedit, or Writ of Right.
4. Ili b.
ز
Clerks to try
Eee 2
If
1
308
The Clergy-Man's Law, Or, Chap. XXX:
.??
Where the
Where the
caremovenda
lies.
j
Gli Laica
If the Authority of the Perſon who made the Mandate to the Arch-
removenda., deacon, &c. to induct, be determined by Death or Removal, Inducti-
on made after by Vertue of that Authority is null and void; for it fo
Alandate for is faid to have been held in the Caſe of one Stainsby, who was pre-
determined." ſented to the Rectory of Milenden, and admitted and inſtituted by the
Archbiſhop, who was then Guardian of the Spiritualities, ratione voca-
tionis ſedis Gloceſtr', and the Archbiſhop alſo directed a Mandate to
Mandate to the Archdeacon for his Induction, who made a Mandate to two Clerks
'Two Clerks. to induct the ſame Stainsby into the ſaid Church; but before Induction
had, a Biſhop of Gloceſter was elected and confecrated, and then In-
duction was made by Vertue of thoſe Mandates. It was adjudged that
the Induction was void, for that the Authority of the Archbiſhop was
determined by the Confecration of a new Biſhop, and conſequently the
Induction made by Vertue of that Authority after it was determined
was void. But this Judgment, as 'tis faid, was afterwards reverſed by
a Writ of Error in the Exchequer-Chamber. Mich. 29 Car. 2. B. R.
Robinſon v. Woolley, Sir Tho. Jones Rep. 78. i Ventris 309, 319. 3
Keble 747, 821. 2 Lev. 199.
If an Archdeacon, or other Perſon authorized to give a Clerk In-
Writ Vi Lai- duction, and coming to do his Office be kept out of the Church, or if
a Clerk be kept out of the Parſonage-Houſe by Lay-men, the Writ of
Vi Laica removenda lies for the Clerk, and this Writ is to be obtained
in the Court of Chancery, either by the Certificate of the Biſhop
within whoſe Dioceſe or Juriſdiction the Church is; or it may be had
there, upon a Surmiſe made thereof by the Clerk himſelf without the
Biſhop's Certificate. And this Writ is to be directed to the Sheriff of the
County to remove the Force, and if need be, to raiſe the Polle Comi-
tus to his Afiftance, and to arreſt and impriſon the Perfons that make
Reſiſtance, and to make Return of the Writ into the King's-Bench,
in which Court the Offenders ſhall be fined and puniſhed for the Force.
But the King's-Bench, as is ſaid by one Book, cannot award Reſtitu-
tion upon any Affidavit of Expulſion by Force, but the Writ in ſuch
Cafe ought to be returned into the Chancery, or taken off the File in
the King's-Berch, if returned there, and put upon the File in the
Chancery : (Quære, How this can beo) And then upon Affidavit there,
that the Sheriff by Colour of a Writ hath removed one, and put ano-
ther into Poſſeſſion, a Writ of Reſtitution is awardable. F. N. B. fol.
53. Reg. of Writs, fol. 59 and 60. Trin. 4 Jac. Bird v. Smith, Moor
781. Hill. 14 and 15 Car. 2. Le Roy cers. March, GC. 1 Siderfin 101.
i Keble 438, but in Robins and Ag mongde Mam's Cafe, Moor 462,
there Reftitution was awarded by the King's-Bench, the Writ being
returned there ; and I ſuppoſe the Practice and Experience is to have
Reftitution awarded out of that Court.
After a Clerk hath obtained Admiſſion, Inſtitution and Induction,
whether by the free Ac of the Ordinary, or by Courſe of Law, ei-
ther in the Eccleſiaſtical Court, or at common Law; then to main-
tain ſuch his Right or Poſſeſſion, the Law in fome Cafes doth give
him Remedy in the Eccleſiaſtical Court, viz. a Spolation. 33 H. 6.
Of Spoliati- 24. But this is a Remedy only to be uſed againſt another Incumbent,
or pretended Incumbent of the fame Church, who is admitted and in-
ſtituted upon the Preſentation of the fame Patron that preſented the
fornier Incumbent, or of ſome other claiming under him ; fo that the
Right of Patronage doth not come into Debate in the Spiritual Court.
As if a Parfon be created a Biſhop, or hath taken a ſecond Benefice in-
com-
Writ of Re-
ftitution a-
warded.
on.
I
1
Chap. XXX. The Completė Incumbent: :
309
Clerk.
ed.
Ed. 3:
44 Ed.
compatible, and withal hath a fufficient Diſpenſation to retain his for- Wirit of
mer Benefice, if the Patron doth preſent another to his Benefice, who ano Segura
is inſtituted and inducted, as ſuppoſiug the Church to be open to his ftration.
Preſentment, a Spoliation lieth for the firſt Clerk. F. N. B. fol. 36.
Spoliation
But if the Ordinary hath inſtituted and inducted my Clerk, and after for first
doth collate and induct a Clerk of his own, no Spoliation lies for my
Clerk, but he ought to try his Right by Allize, Trefpafs, or Ejectione
Firmæ, at the common Law.
26 H. 8. 3.
Or if Leſfee for
Years of an Appropriation doth, when the Vicarage is void, preſent to
the Rectory with the Biſhop's Confent, whereby the Parſonage and
Vicarage are united, and ſo remain for ſeveral Years, yet the Appro-
priator ſhall not be relieved by Spoliation, but at comnion Law. 44
Ed. 3. 33. And it ſaid, that Parſon ini perſonee, or Appropriator, may
have a Spoliation as Incumbent, and a Writ of Right of Advewfon as
Patron, 38 H. 6. 19, yet it ſeems that a Spoliation cannot in any
Cauſe lie for an Appropriator, for if an Incumbent be preſented by the
Appropriator himſelf, he is the only Incumbent, and the Appropriati-
on diffolved ; and if he be preſented by a Stranger, the Right of Pa-
tronage muſt then come in Queſtion, becauſe the Appropriator muſt
be Patron when the Appropriation is made, 38 H. 6. 19.
When a Spoliation is brought, and doth not lie in the Cafe, the Proceeding
Proceedings in the Eccleſiaſtical Court may be ſtayed by a Prohibiti- liation Itay-
on, 38 H. 6. 19, or by Indicavit, as the Cafe
may
be.
33.
When a Spoliation is brought to try which of two Perſons inſtituted Sequeſtrati-
is the rightful Incumbent of a Parfonage or Vicarage, or after Sen-Sm Pon,
,
tence given againſt one of the Parties, who hath appealed, it is uſual
for the Eccleſiaſtical Judge, at the Petition of either of the Parties, al-
ledging that Controverſy and Oppofition is about the collecting the
Profits, to Decree, that the Fruits of the Church be fequcſtred, and to
commit the Power of collecting them to the Church-wardens, or ſome A Sequeſtra-
others of the ſame Pariſh, firſt taking Bond of ſuch Perſons, whereby ted to the
they ſhall be obliged to collect and keep the Tythes for the Uſe of Church-
him that ſhall be found to have the Right, and to render a juſt Ac-
count when called thereunto. And the Judge is alſo wont to appoint
fome Miniſter to ſerve the Cure for the Time that the Controverfy
ſhall depend, and to command thoſe to whom the Sequeſtration is
committed, to allow fuch Salary as he ſhall aſſign out of the Profits
of the Church to the Parſon that he Orders to attend the Cure; and
thoſe to whom this Sequeſtration is committed, are to caufe the fame
to be publiſhed in the refpective Churches in the Time of Divine Ser-
vice. After the Suit is determined, the Sequeſtration is to be taken
off, and the Profits collected to be reſtored to him that prevails at Law,
viz. in Specie, if they remain fo, or if not, the Value of them. If the
Sequeſtrators refufe to do this, they are to be compelled to do the
fame by the Eccleſiaſtical Court; and if they thall, being called there- If the Se-
unto, delay to give an Account, the Judge ufeth to deliver to the Party queſtrators
grieved the Bond given, with a Warrant of Attorney to ſue for the
account,
Penalty thereof to his own Uſe at the common Law.
wardens.
Copco
:
-
i
CH A P.
1
310
The Clergy-Man's Law, Or: Chap. XXXI.
Commons
Player.
CH A P. XXXI.
The Miniſter's Duty in reading the Com-
mon-Prayers, adminiſtring the Sacraments,
&c.
cumbent
with Cure
ed in the
Book of
Common-
Hih
Itherto hath been ſhowed by what Means a Perſon may make
himſelf the lawful Incumbent of an Eccleſiaſtical Benefice.
The
following Chapters are to declare the Effects of ſuch Incumbency,
that is, to what Duties the Clerk thereby is obliged by Inſtitution,
and what Bencfits he is to receive by Induction.
14 Can 2. He that is Incumbent of a Benefice with Cure (tho' it be only by Ad-
6. 4. An In- miſſion and Inſtitution) hath thereby not only the Authority, but is
alſo under an Obligation, to perform all the Offices of a Miniſter to the
by Instituti- People belonging thereunto. And it is enacted by 14 Car. 2. 6.4.
on only, is That all ano angular minifters in any Cathedal, Collegiate, op
all Offices of Parit Church 02 Chapei, or other place of publick Worthip within
* Miniſter. this Realm of England, Dominion of Wales, and Town of Berwick
upon Tweed, ſhall be bound to ſay and uſe the morning Player, E.
vening Player, Celebration and Adminiſtration of both the Sacra.
ments and all other the Publick and Common-Player, in ſuch Deder
and form as is mentioned in the ſaid Book annered, and joined to
As mention- this preſent Act, and entituled, The Book of Common-Prayer and,
Adminiftration of the Sacraments, and other Rites and Ceremonies of
the Church, according to the Uſe of the Church of England, toge-
Prayer, Egoc. ther with the Pſalter or Pfalmıs of David, pointed as they are to be
fung or ſaid in Churches; and the Form or Manner of Making, Or-
daining and Confecrating of Biſhops, Prieſts and Deacons : and that the
qorning and Evening Players therein contained, ſhall upon every
Lord's Day, and upon all other Days and Dccaſions, and at the
Times therein appointed, be openly and folemnly read by all, and es
very Miniſter of Curate in every Church, Chapel, oj other Place of
publick Wollhip, within this Realm of England, and places afore.
Caid.
Foreigners,
Provided, That the Penalties in this a& Thall not extend to the Fox
reigners od aliens of the foreign Reformed Churches, allowed od to
be allowed by the King's Majeſty, bis heirs and Succellous, in
England.
This Clauſe of this Statute doth make it the Duty of
ſter, obliged to officiate in any Place of publick Worſhip, to ſay and
Prayers. uſe the Morning and Evening Prayer; as to which, from the ſaid Clauſe,
theſe Things may be noted:
Firſt, That if the whole Morning and Evening Prayer, or all the
fe omitted, Prayers appointed to be read by the Book of Common-Prayer on eve-
punithable
. ry Sunday and Holy-day, and upon any Occaſion both in the Morn-
ing and Afternoon of ſuch Days, without the Omiſſion of any one, or
Part of any one of them, &c. be not read, the Offender is puniſhable
· by this Statute, and Stat. 1 El. cap. 2.
Esc. exccpt-
ed.
As to read-
ing the
Common-
every Mini-
If one, Bogor
I
Seo
1
Chap. XXXI. The Complete Incumbent.
311
Sicondly, That nct only the Morning, or the Evening, but both Commons
Morning and Evening Prayers, at the Time appointed, are to be read Parer.
by every Miniſter obliged to officiate in every Church, Chapel, and He muit
Place of publick Worſhip, every Sunday, and Holy-day, o co From read both
which it follows, That no Miniſter that hath two Benefices, can by Evening
Morning and
himſelf alone ſupply both his Cures; or if he hath but one Benefice, Prayers.
can ſerve that with another as Curate ; or if his Benefice hath a Cha-
pel of Eaſe belonging to it, in which he is bound to fay Divine Ser-
vice, or to provide one to ſay it, can by himſelf in Perſon officiate in
both ; nor can any one Perſon be a Curate in two Churches, unleſs
fuch may ſatisfy the Law, by reading both Morning and Evening
Prayers at each Place, which cannot well be done ; nor may a Mini-
fter read Morning Prayer at one Church, and Evening Prayer at ano-
ther Church or Chapel, by the Allowance of the Ordinary, for he The Ordi.
cannot diſpence with Acts of Parliaments ; neither can he ſerve one nary cannot
Cure on one Sunday, and another Cure on the next, nor can he, with Aks of
ſtrictly ſpeaking, at any Time neglect to read either Morning or Even- Parliament.
ing Prayer in his Church, however, not unleſs his Neglect be neceſſa-
ry, but ſhall be ſubject to Puniſhment by this Statute, and Stat. 1 El.
ز
cap. 2.
Vid. poft.
Thirdly, Every Miniſter in any Church, as it ſeems, is as much Quare, con-
bound to ſay Morning and Evening Prayers on every Holy-day, and cerning the
on the Fifth of November, the Thirtieth of January, and on the of Prayer
Twenty-ninth Day of May, as on the Lord's Day; but Quære, for occaſionally
thoſe Fornis of Prayer appointed to be read on thoſe Days, are no Part preſcribed
of the Book of Common Prayer, but added to it by the King's Order: Faſtings, Egoc.
And the Obligation of Miniſters, to read ſuch Forms of Prayer as have But Note,
been, or ſhall be occaſionally preſcribed for any Solemn Days of Faft- is only penal
ings or Thankſgiving, ſeems to be founded, not ſo much on any ex- where the
preſs Law, or Statute, as on the Equity and Reaſon of the Thing, Miniſter
that extraordinary Occaſions ſhould be ſupplied with ſpecial and ex- ly or obfti-
traordinary Forms, which may be ſaid to be Appointed but not En- nately ftand-
afted, and rather Allowed than Ordered. Yet they may not only be ing in the
ſafely uſed, without Treſpaſs upon any Act of Uniformity, but being any other,
drawn up by the Biſhops of the Church, and recommended by the porto
King's Authority, and containing nothing contrary to the eſtabliſhed
Forms of Divine Service, they ought to be uſed at the proper Times
by every Miniſter
Miniſter: And though there is no Statutable Penalty for ſuch
Neglect or omiſſion, yet fuch Contempt of Authority may undoubted-
ly be puniſhed by other legal Ways. Some have thought that there
is a Proviſo made for authorizing ſuch extraordinary Forms of Prayer
in the Rubrick after the Nicene Creed, where it is ordered, that No- Implication
thing shall be proclaimed, or publiſhed in the Church during the Time
may be pub-
of Divine Service, but by the Miniſter; nor by him any Thing, but lihed or
what is preſcribed in the Rules of the Book, or enjoined by the King,
or by the Ordinary of the Place : This latter Part of the Exception
does imply, that any Thing in it felf Lawful and Honeſt, enjoined
by the King, or Ordinary, ſhall be, or at leaſt may be Publiſhed, or
Read; and eſpecially fuch Forms, as by joint Authority of King and
Ordinary are appointed on ſuch particular Occaſions. And further,
the very Acts of Parliament, which ordain a Publick Thankſgiving on
the ſtated Days, do imply that ſome Proviſion ſhall be made for a pro-
per Form adapted to the Occaſion of the Day; as in the Act for a Pub- Thankſgi-
lick Thankſgiving to Almighty God every Year on the Fifth of No- yine on los
vember, November.
what Thngs
read.
312 The Clergy-Man's Law: Or, Chap. XXXI.
ile::ts.
Celebration
of the Sa-
craments.
ap-
Miniſters
able.
Sacra vember, it is enacted, That all and ſingular Miniſters in etery Cathe-
dral, and Pariſh-Church, Mall always upon the Fifth Day of Novem-
ber ſay Morning Prayer, and give uinto Almighty God Thanks for this
mojt happy Deliverance. But how ſhall the Miniſter give Thanks, in
any Arbitrary Form or Manner of his own deviſing, or not rather
in ſuch common Form as his lawful Superiors Thall preſcribe to
him?
Fourthly, Note, That a Miniſter is bound to fay, and uſe the Morn-
ing and Evening Prayer, and the Celebration and Adminiſtration of both
the Sacraments, in ſuch Order and Form, as is mentioned in the
Book of Common-Prayer; ſo that, ſtrictly ſpeaking, if in reading the
Morning and Evening Prayers, he ſhall ſtand or ſit when he is direct-
ed to kneel, or kneel or ſit when he ſhould ſtand, or ſhall read them
in other Order than is appointed, or ſhall omit any Thing that is
pointed to be read on certain Days, or miſplace the Prayers in read-
ing them, or read in one Day what is appointed to be read on ano-
ther, or do not celebrate and adminiſter the Sacrament, in ſuch Order
and Form as is appointed, he is puniſhable by this Law.
Fifthly, Not only Miniſters of Parochial Churches, but alſo all Mi-
officiating in niſters, that by their Places are to officiate in any Cathedral, or Col-
Collegiate legiate Churches or Chapels, or other Places of publick Worſhip, (ex-
Churches, cepting fuch Proteſtant Diſſenters as are provided for, by the Statute
&c. puniſh-
1 W. and M.) if Morning and Evening Prayer be not read by them, or
ſuch of them, whoſe Part is to read the fame, &c. in ſuch Order
and Form as is appointed, are puniſhable by this Law. And alſo all
,
as well Biſhops as others, that do read Morning and Evening Pray-
ers in any of them; celebrate the Sacraments, Confirm, give Orders,
Marry, Gc. although that they do any of theſe Things for others ob-
liged by their Places to do the ſame, if they perform them not in ſuch
Order and Form, as is appointed by the Book of Common-Prayer,&c.
Alſo Biſhops are Tranſgreſſors of this Law. And in Churches where there is a Vie
car endowed that is Preſentative, and a Parſon alſo that is Preſentative,
Trangrer-
it is ſaid, that the Vicar, and not the Parfon, hath the Cure of Souls,
Ed. 2, Quare Impedit 105, per Paſt. But I conceive, that the Par-
ſon hath alſo the Cure habitually, although the Vicar actually, who
is in Subſidium Re&toris, and is to perform the Duty, and puniſhable
upon
a Neglea: And ſo are Curates of beneficed Miniſters lawfully ab-
ſent from their Charges, if (being duly admitted to be Curates of a
Church by the Ordinary) they, whilſt they remain Curates, neglect
duly to read both Morning and Evening Prayers; for ſuch Curates are
Miniſters in the Churches where they ought to ſerve, and are expref-
ly named in the Statute. And in ſuch Cafe, I ſuppoſe, that the In-
cumbent of the Church is not puniſhable, if Divine Service be neglect-
ed by the Curate, whilſt he remains ſuch; but Quære, for that the
Charge of the Souls remains upon the Incumbent. However, if the
Curate doth read the Prayers, the Incumbent is excuſed, that is,
unleſs the Miniſter doth reſide on his Benefice, as will be ſhewed.
Note, The Canons, which preſcribe the Qualification and Duty of
relating to Curates, are chiefly theſe two.
CAN. XLVII. Abſence of beneficed Men to be ſupplied by Curates
that are allowed Preachers.
2
may be
fors.
5
Curates of
beneficed
Ministers.
Canons
Curates.
Every
Chap. XXXI. The Complete Incumbent.
313
inents.
>
Every beneficed Man licenſed by the Laws of this. Realm, upon ur Sacra:
gent Occaſions of otlıer Service, not to reſide wpoiz his Benefice, Mall
canje lis Cure to be fupplied by a Curate, that is, a ſufficient and li-
cenſed Preacher, if the Torth of the Benefice will bear it. But whoſo-
ever hath two Benzfices, ſhall maintain a Preacher licenled, in the
Benefice where le doth not reſide, except lie preach himſelf at both of
them uſually
CAN XLVIII. None to be Curates, but allowed by the Bi-
ſhop.
No Curate, or Miniſter, ſhall be permitted to ſerve in aizy Place,
without Examination, and Admiſion of the Biſhop of the Dioceſe, or
Ordinary of the Place having Epiſcopal Juriſdiétion, in Writing un-
der his Hand and Seal, laving reſpect to the Greatneſs of the Cure,
and Meet meſs of the Party'
. And the said Curates, and Miniſters, if they
rerilove from one Dioceſe to another, Mall 120t be by any means admitted
to ſerve without Teſtimony of the Bilbop of the Dioceſe, or Ordinary
of the Place as aforeſaid, whence they came, in Writing, of their Ho-
neſty, Ability, and Conformity to the Eccleſiaſtical Laws of the Church
of England. Nor any ſhall ſerve more than one Church or Chapel upo
on one Day, except that Chapel be a Member of the Pariſh Church,
or united thereunto; and unleſs the ſaid Church or Chapel, where ſuch
a Miniſter Shall ſerve in two Places,' be not able in the Judgment of
the Biſhop, or Ordinary as aforeſaid, to maintain a Curate.
Sixt):ly, Note, That though by the aforeſaid Clauſe of the Statute, That the
every Miniſter in every Church, Chapel, and Place.of publick Wor- Ordinary
ſhip, is bound openly, and folemnly, to read the Morning and Even- for Neglea.
ing Prayer contained in the Book of Common Prayers, 6c. upon eve-
ry Lord's Day; and upon all other Days, and Occaſions, and at the
Time therein appointed, for the Neglect of which alſo the Ordinary
may puniſh, though the ancient Service be altered, 1 Inft. 95. bi yet
by the faid Clauſe, no Miniſter is obliged to adminiſter either of the
Sacraments, to folemnize Marriages, viſit the Sick, bury the Dead,
church Women; nor is any Biſhop obliged thereby to confirm the To what
Baptized, or to confecrate, or ordain any one to be a Biſhop, Prieſt or, Bishop and
Deacon, and therefore not puniſhable by this Statute for the Neglect Miniſters are
of any of theſe Offices, but only when he doth perform, celebrate or upon Pepee
adminiſter either of the Sacraments, he is to celebrate and adminiftcr ties.
them in ſuch Order and Form as is mentioned in the Book of Com-
mon-Prayer ; and when he doth perform any of the other Duties, to
ſay and uſe ſuch Prayers as are appointed by the faid Book to be uſed
at the Performance of any of them, in fuch Order and Form, as the
faid Book doth appoint.
Note, The Celebration of Sundays and Holy-days, and the Form of the celebra
Divine Service to be uſed on them, are alſo provided for by theſe tion of Sun
wholſome Canons of the Church.
days and How
ly days,
CAN. XIII. Due Celebration of Sundays and Holy-days,
All manner of Perſons within the Church of England, Shall from
hercefort! celebrate and keep the Lord's Day', commonly called Sun-
Fff
day,
1
:
1
-
i
314
The Clergy-Man's Law: Or, Chap. XXXI
.
Sacra
ment.
ز
day, and other Holy-days, according to God's Holy Will and Pleaſure,
and the Orders of the Clmirch of England preſcribed in that behalf
that is; in hearing the IPord of God reed and taught in private and
fubbi,ck Prayers, and acknowledging their Ofences to God, and Amend-
Hient of the ſcene, in reconciling themelves charitably to th:cir Neigh-
bours, where Difpleafure Bathy beeni, in oftentimes receiving the Com-
munion of the Body and Blood of Chriſt, in viſiting of the Poor and
Sick, uſing all godły and Sober Converſation.
C A N. XIV. The prefcript Form of Divine Service to be uſed on
Sundays and Holz-days.
The Cornuron-Präpper salt be ſaid or fung diftinetly and reverently
żspon fiech Dags ers are appointed to be kept Holy by the Book of Conti-
mron-Prayer, and their Eves, and at convenient and ufual Times of
thoſe Days, cind in fuch Place of every Church as the Biſhop of the
Diócefez of Ecclefiaftical Ordinary of the Place, shall think ineet for
the Largeneſs or Straitneſs of the ſame, fo as the People may be most
edifted. Ali Miniſters shall bikewiſe obſerve the Orders, Rites and Ce-
gte meonies preſcribed in the Book of Common-Prager, as well in reading
the Holy Scripture, and ſaying of Pragers, dis ini Adminiſtration of the
Saèi tërheitts, without either diminiſhing, in regard of Preaching, or
in any other reſpect, or adding azy Thing in the Matter or Foruz
thereof 9
i
14 Car. 2. 6. 4.
As to an In-
cumbent re-
rate
And as concerning an Incumbent of a Church who is reſident, and
keeps a Carate, it is further enacted by the Authority aforeſaid,
fident who Chag i at places where the propec Incumbent of any parlonage of
a
Wicatage, 0 Benefice with Cure, doth refide on his Living, and
keeps a Carate, the Incumbent himſelf in Perſon (not having ſome
lawful Impediment to be alloweo by the Dedinary of the place) Thall once
Cat the teaft) in every ngonth, openly airo pubiickig, tead the Com-
mon Prayers and Service, in and by the faid Book preſcribed, allo
(ie there be occafiony adminifter each of the Sacraments, and other
Rites of the Churcb, in the Parim-Church of Chapet, of oz betonging
to the fanie Patronage, Wicarage du Benefice, in ſuch Dider, Panilec
and form, as th and by the laid Book is appointed, upon pain to
förftit the Sum of five Pounds, to the Uſe of the pool of the Pa-
rift for eftery Diffence, upon Convictioit; by Contemon, oz Proof of
two credible ca itnéffes upon Dath, befoże two Hatteg of the peace
of the County, or town-corporate where the Drence thail be com-
mitted, (which Dath the ſaid two fuffices me hereby inppowred to ad:
ntínitter) imo in Default of payment within ten Dagg, to be levied
by Ptitres ano Sake of the 6000s and Chattels of the Defender, by
the Warrant of the ſaid Juſtices, by the Church-wurdens og Dver:
(eers of the Pood of the ſaid Pariſt, rendung the Surplulage to the
Party. Srat. 14 Car. 2. C: 4.
Toadnieni-
So that though in other Cafes-the Stdtuke cloth not oblige Miniſters
cranienes
of Churches to adminiſter the Sacraments; and uſe other Rites apv
pointed in the Book of Common-Prayer, but ſeems only to direct the
Miniſter ; yet hý dtis Clarife, thic Minifter that is tefident upon his
Cure, is bound as ivell to adminiſter the Sacrament once cvery Month,
3.5 amo perform all other Rites, as to Mary, Bury, Go if there' be
܂
I.
iter, tha: Sim
once a
Month,
92.00
:)
.
À
Chap. XXXI. The Complete Incumbent. 315
Super.
Occaſion, as to read the Prayers ; otherwiſe he is ſubject to the Pe- Lou's
nalty mentioned in this Clauſe.
Though not by the aforeſaid Statute, yet by the Rubrick, a Mini- To whom ho
ſter muſt ſay, and uſe the Celebration and Adminiſtration of both the is to admini-
Sacraments as is mentioned; and yet thereby he is not bound to ad- craments.
miniſter the Lord's Supper to all Perſons whatever they be : For firſt;
none are to be admitted to the Holy Communion, until fuch Time
as they be confirmed, or be ready and deſirous to be confirmied: See
Rubrick, in the Order for the Adminiſtration of the Lord's Supper, or
Holy Communion. For by the Order for the Adminiſtration of the
Lord's Supper it is Ordered, That if any one be an open and notorious
evil Liver, or hath done any Wrong to his Neighbour by Word or Deed,
ſo that the Congregation be thereby offended, the Curate having Know-
ledge thereof, Mall.call him, and advertiſe him, that in any wiſe be
preſume not to come to the Lord's Table, until he hath openly declared
himſelf to have truly repented, and amended his former naughty Life,
that the Congregation may thereby be ſatisfied, which before were of-
fended, and that he hath recompenſed the Parties to whom he hath done
Wrong, or at leaſt declare himſelf to be in full purpoſe fo to do, as fooer as
he can convenientlı.
The Same Order Jall the Curate uſe with thoſe betwixt whom he Not to the
perceiveth Malice and Hatred to Reign, not ſuffering them to be Par- Malicious
takers of the Lord's Table, until he know them to be reconciled: And
and Hateful;
if one of the Parties ſo at Variance be content to forgive, from the
Bottom of his Heart, all that the other hath trespalled againſt hims
and to make Amends for that he himſelf hath offended, and the other
Party will not be perſuaded to a godly Unity, but remain ſtill in his
Frowardneſs and Malice, the Miniſter in that Caſe ought to admit the
Penitent Perſon to the Holy Communion, and not him that is Obſti-
nate. Provided that every Miniſter ſo repelling any, as is. ſpecified inz
this or the next precedent Paragraph of this Rubrick, ſhall be obliged
to give an Account of the ſame to the Ordinary within fourteen Days
after at the furtheſt; and the Ordinary ſhall proceed againſt the offend-
ing Perſon according to the Canon.
c.
The Canons which provide for the more regular Adminiſtration of Canons rela-
the Lord's Supper are theſe, of which the Titles follow :
ting to the
Lord's Sup-
per.
CAN. XX. Bread and Wine to be provided againſt every Commu-
nion.
CAN. XXI. The Communion to be thrice a Year received.
CAN. XXII. Warning to be given before-hand for the Commu-
nion.
CAN. XXIII. Students in Colleges to receive the Communion Four
Times a Year.
CAN. XXIV. Copes to be worn in Cathedral Churches by thoſe that
adminiſter the Communion.
CAN. XXVI. Notorious Offenders not to be admitted to the Con-
niunion.
CAN. XXVII. Schiſmaticks not to be admitted to the Communion.
CAN. XXVIII. Strangers not to be admitted to the Communion.
CAN. XXIX. Father's not to be Godfathers in Baptiſm, nor Chil-
dren not Communicants.
Fff 2
There
316
The Clergy-Man's Law: Or, Chap. XXXI. .
Slimmer.
Errors in
may
the Sacra-
inents.
See I Sid.
34, 35.
Sid. 1 Keb.
947, contra
where a
Man is
rochial
Miniftcr
2020's There foems to be a common Error in Perſons to be qualificd for
any Office by receiving the Sacrament of the Lord's Supper, according
to the Order of the Church of England, to challenge an abſolute Right
Perfous to be of Admiſſion to it, and to pretend that an Action upon the Caſe
qualified for
Onices by be brought againk thoſe Miniſters who refufe to Adminiſter unto them,
receiving and will not allow the Miniſter a Liberty to inquire into their Fitneſs
to foccive it. The Perfons to bc thus qualified preſent themſelves to
communicate, either, ift. More regularly to their own Parish Prieſt;
or, 219. To fome Parochial Miniſter. If to their own Pariſh Prieſt
,
he has as much Right by Rubrick, to fufpend his Miniſtration to any
Magiſtrate, or Officer Elect, as to any of his meaneft, and moſt pri-
bound to re- vatc pcoplc, if he can give the ſame Reaſon for rejecting of him. 'Or
ceive under if the Perfon to be qualified offer to communicate with fome other Pa-
a Penalty. rochial Miniſter, ſuch Miniſter may perhaps more juſtly refuſe to ad-
mit him, becauſe, ift. No Prieſt is obliged to adminiſter the Sacra-
That a Pa- ments to any but his own People committed to his peculiar Charge,
and may decline admitting any Foreigner or Stranger; beſides, fome
may decline faithful and confciencious Miniſters have much doubted, whether they
admitting a ought to admit thoſe Perſons to the Holy Socraments for a legal Qua-
Forcigner or lification, who come only to ſerve that Turn, and who at other Times
Stranger.
live in a negative Separation, abſenting themſelves from the Church,
and the holy Offices of it ; or perhaps in a poſive Schifm, joining
themſelves to ſome feparate Congregation. This is certainly a moſt
ſcandalous Practice in theſe Lay-perfons, who can thus dare to mock
God, and play with the Holy of Holies in Religion. And even thoſe
Clergy-men who connive at this Hypocriſy of Communicants
, may be
thought in ſome meaſure Partakers of thoſe other Mens Sins, and help
to proſtrate Sacraments. To prevent this and other Miſchiefs, it is
highly expedient, that the good Rule in Rubrick ſhould be better ob-
ſerved; So many as intend to be partakers of the Holy Communion,
Shall fignify their Names to the Curate, at leaſt ſome Tiine the Day
before.
Notice by When a Miniſter doth intend to adminifter the Lord's Supper, he is
to give Warning for the Celebration thereof upon the Sunday, or ſome
Holy-day immediately preceding, which he is to do after his Sermon,
or Homily ended: And then alſo he is to read one of thoſe Exhortati-
ons, as the Rubrick in the Communion-Service doth direct to be read
at ſuch Time, according as he ſhall ſee Cauſe.
When the Day prefixed by the Miniſter for his adminiſtring of the
Sacrament doth come, the Miniſter ſhall not without lawful Caufe de-
ny the fame to any perſon that will devoutly and humbly deſire it. Stat.
i Ed. 6. cap. 1.
Yet it is ordered by the Rubrick in the Communion-Service, That
there shall be nio Celebration of the Lord's Supper, except there be a
convenient Number to communicate with the Prieſt according to his
Diſcretion zand if there be not above Twenty Perſons in the Pariſ, of
Diſcretion to receive the Communion, yet there shall be 120 Communion,
except four (or three at tle leaft) communicate with the Prieſt.
When the Sacrament is adminiſtred by any Prieſt, it is to be adıni-
niſtred in both Kinds, that is to ſay, of Bread and Wine, except Ne-
ceſſity otherwiſe require. Stat. 1 Ed. 6. cap. 1. And the Bread and
Wine for the Communion ſhall be provided by the Curate, and the
Church-wardens, at the Charges of the Parish ; and to take away all
Qccaſion of Diffention, and Superſtition which any Perfon hath or might
the Miniſter,
Not to be
denied with-
out lawful
Cauſe.
To be admi-
niftred in
both Kinds.
I
have
Chap. XXXI. The Complète Incumbent.
317
any
Communion
have concerning the Bread and Wine, it ſhall fuffice that the Bread be Lad's
fuch as is uſual to be eaten, but the beſt and pureſt Wheat Bread that Juj per, &F:-
conveniently may be gotten. And if any of the Bread and Wine re-
main unconfecrated, the Curate ſhall have it to his oivu Uſe; but if
remain of that which was confecrated, it ſhall not be carried out
of the Church, but the Prieſt, and ſuch other of the Cominunicants as
he fhall then call to him, ſhall immediately after the Bleffing re-
verently eat and drink the ſame.
It is moſt regular, and expedient, that the Sacrament of the Lord's For the
Supper be received by Perſons that are to receive the ſame in their of the Sick.
Parish Church, or other Place of publick Worſhip, and not in Private
Houſes : But if a fick Perfon be not able to come to the Church, and
yet
is deſirous to receive the Communion in his Houſe, then he muſt
give timely Notice to the Curate, fignifying alſo how many there are
to communicate with him, (which ſhall be three, or two at the leaſt)
and having a convenient Place in the ſick Man's Houſe, with all Things
neceffary, fo prepared that the Curate may reverently miniſter, he
Thall there celebrate the Holy Coinmunion. Rubrick for the Com-
munion of the Sick.
From which note, That if the ſick Perfon be able to come to the When noc
Church, or doth not fignify how many are prepared to communicate
with him, or if there be not two at the leaſt to communicate with
him, or if he have not Things neceſſary for the Celebration thereof in
reverent Manner, the Curate is not bound to adminiſter it, yea, he is
bound not to adminiſter:it, which alſo may be collected from other
Words in the Rubrick. Yet in the Time of Plague, Sweat, or other
like contagious 'Times of Sickneſs or Diſeaſes, when none of the Pariſh
of Neighbours can be gotten to conimunicate with the Sick in their
Houſes, for fear of the Infection, upon ſpecial Requeſt of the Diſea-
fed, the Miniſter may only communicate with him. Rubrick for the
Communion of the Sick.
due Norice,
1
Note, This Duty of adminiſtring the Holy Sacrament only in Canon for
Churches or Chapels, except to fick Perſons in Private Houſes, is thus adminiftring
ordered by the Canon.
Neceflity.
No Minifter ſhall preach, or adminifter the Holy Communion in any
private Houſe, except it be in Times of Neceſſity, when any being ei-
ther ſo impotent as he cannot go to Church, or very dangerouſly fick;
are deſirous to be Partakers of the Holy Sacrament, upon pain of Suf-
penſion for the firft Offence, and Excomuninication for the ſecond, &c.
Can. 71.
Sacrament
Alſo, though by the Rubrick every one having Cure of Souls is
of Baptiſm
bound to ſay, and uſe, the Celebration and Adminiſtration of the Sa- may be fuf-
crainent of Baptiſm to all the Infants of baptized Parents; yet in ſome pended.
Cafes, he may ſuſpend, at the leaſt, to baptize Perſons brought to him
for that purpoſe.
As if they be not brought to the Place of publick Worſhip, and to For wha!
the Front there, on ſome Sunday, or Holy-day, immediately after the Caufes.
laſt Leſſon at Morning Prayer, or elſe imniediately after the laſt Lef-
ſon at Evening Prayer, as the Curate by his Diſcretion ſhall appoint;
or if there be not ready at the ſaid Time and Place, for every Male-
child to be baptized, two Godfathers and one Godmother, and for e-
very Female, one Godfather and two Godmothers. Rubrick,
But
318
The Clergy-Man's Law: Or, Chap. XXXI.
ز
Sufficicnt
:.
Baptiſma But in caſe of Neceſſity, as if a Child be fick, &c. the Gurate is
Private Bap-
bound to baptize it on any Day, and in a private Houſe, and without
tiſm in care Godfathers or Godmothers, and then the Child (if it afterwards live)
of Neceſſity. regularly ought to be brought into the Church in the Preſence of thé
Congregation there, that if the Miniſter of the ſame Pariſh did bap-
tize it, he may certify the Congregation that it was duly baptized;
or if the Child was baptized by any other, that he may examine
whether the Child was lawfully baptized, that is, whether by a law-
ful Miniſter, by proper Water, and in the Name of the Father, and
of the Son, and of the Holy Ghoſt ; ſo that if it was done with
improper Matter, as Milk or Wine, or other Liquid, inſtead of Wa-
ter, or not in the Nanie of the Father, and of the Son, and of the
Holy Ghoſt, the Miniſter may baptize it according to the Form
appointed for publick Baptifm ; or if upon Examination of the Mat-
ter, he doth find that all Things were done as they ought to be, that
he may certify as much to the Congregation, at which Time God-
fathers and Godmothers are to be preſent, and to undertake for the
Child. Rubrick.
And Note, That a Child baptized with water in the Name of the
Father, and of the Son, and of the Holy Ghoſt, is fufficiently baptized,
Baptifm, tho'
not by law- although not baptized by a lawful Prieſt, as may be collected from the
ful Prieft,&c. Rubrick; and ſo it is if the Child be baptized by other Form, yet
the Perſon baptizing not being a lawful Prieſt is puniſhable, like as a
lawful Prieſt baptizing by other Form than is fet down by the Book of
Common Prayer is puniſhable.
Formerly Su In former Times the Neceſſity of Baptiſm to new-born Infants was
perftition in fo rigorouſly taught, that for this Reaſon they allow'd Lay People,
Baptiſm.
and even Women, to baptize the declining Child, where a Prieſt could
not be immediately found; fo fondly ſuperſtitious in this Matter, that
in hard Labours the Head of the Infant was ſometimes baptized be-
fore the whole Delivery. This Office of Baptizing in ſuch Cafes of
Neceſſity, was commonly performed by the Midwife; and 'tis very pro-
bable, this gave firſt Occaſion to Midwives being licenſed by the Bi-
ſhop, becauſe they were to be firſt examined by the Biſhop or his de-
legated Officer, whether they could repeat the Form of Baptiſm, which
they were in Haſte to adminiſter upon ſuch extraordinary Occaſion.
But we thank God our Times are reformed in Senſe, and in Reli-
gion.
Alſo if a Miniſter hath in his Pariſh any unbaptized Perſon that is
Baptiſin of
Persons of of Years of Diſcretion, and which doth defire to be baptized, it ſeems
Years of Dif- the Miniſter ought to ſuſpend the Baptizing of him until Notice of
ſuch Perfon's Purpoſe ſhall be given to the Biſhop, or to whom he ſhall
appoint to take Cognizance of ſuch Matters, and until ſuch Time as
he ſhall be examined, and found to be ſufficiently inſtructed in the Prin-
ciples of Chriſtian Religion. Rubrick. And yet he is to baptize (even
as Infants) thoſe not baptized in their Infancy, that be brought to him
before they come to Years of Diſcretion, that is, either by the Form of
publick or private Baptiſm, as Neceſſity ſhall require, and without No-
tice given to the Biſhop, or precedent Examination. Rubrick.
He that hath the Cure of any People, is not only bound by Law to
the Sick, &c. fay Divine Service, and adminiſter the Sacraments to them, but alſo
of them within his Cure, to viſit the Sick, bury the Dead, church
Women after Child-birth, to folemnize Matrimony betwixt Perfons to
be married, and to inſtruct them all in Things to be believed and
done
Vifitation of
I RI Abr.
Ito.
3
Chap. XXXI. The Complete Incumbent.
319
ز
ÁNO OTER-
so
O atechifing -
Claufe of the Statute, 14 Car. 2. c. 43 a Miniſter is bound to ſay and be uſed in
are afterwards to be confirmed by the Bishop, and alſo by preaching matin.
God's Word unto them. Rubrick.
But though i: be his Duty, gencrally ſpeaking, to bury thoſe that whom he
die within his Pariſh, yet he ought not to bury the Corps of any qught wor to
bury.
Perſon dying unbaptized, cxcommunicated, or who hath laid violent
Hands upon himſelf. Rubrick.
And though it be his Part to folemnize Matrimony betwixt thoſc Banes of Ma-
of his Pariſh that are to be married, yet the Banes of all that are to
trimony.
be married together muſt before their Marriage be publifhed in the
Church three ſeveral Sundays or Holy Days, in the Time of Divine
Service, immediately before the Sentences for the Offertory, in the
very Form of Words appointed in the Rubrick. And if the Perſóns
that are to be married dwell in divers Pariſhes, the Banes muſt be asked
in both Pariſhes, and the Curate of the one Pariſh ſhall not folem-
nize Matrimony betwixt then, without a Certificate of thie Banes be-
ing thrice asked, from the Curate of the other Pariſh; and at their
Day of Marriage, if any Man do alledge and declare any Impedi-
ment, why they may not be coupled together in Matrimony by God's
Laws, or the Laws of this Realin, and will be bound, and fufficient
Sureties with him, to the Parties, or elſe put in a Caution to the fall
Value of the Charges as the Perſons to be married do thereby faſtain,
to prove his Allegation, then the Sołemnization muſt be deferred unul
fuch Time as the Truth be tried. Rubrick.
And as to a Curate's Catechiſing the Youtk within his Pariſh, it is Catechifing
to be noted, that he is to inſtruct and examine upon Sundays and Ha-
ly-Days after the fecond Leſſon at Evening Prayer, openly in the
Church, fo many Children of his Parifli fent unto him as he ſhall
think convenient, in fome Part of the Catechiſm in the Common-
Prayer Book. Rubrick.
And ſo ſoon as Children are come to a competent Age, and can Confirma-
fay in their Mother Tongue the Creed, the Lord's Prayer, and the tion.
Ten Commandments, and alſo can anſwer to the otlier Queſtions in
the ſaid ſhort Catechiſm, they ſhall be brought to the Bilhop, and
every one ſhall have a Godfather, or a Godmother, as a Witncís. of
their Confirmation. Rubrick.
And whenfoever the Biſhop ſhall give Knowledge for Children to be names to be
brought unto him for their Confirmation, the Cirate of every Pariſh imen in by
ſhall either bring, or fend in Writing with his Hand ſubſcribed there-
unto, the Names of all ſuch Perfons within his Pariſh, as he ſhall think
fit to be preſented to the Bifhop to be confirmed; and if the Biſhop
approve them, he ſhall confirm them according to the Form in the
Book of Common Prayer preſcribed. Rubrick.
In the Performance of which offices, as appears by the aforeſaid Prayers to
ufe all other Publick and Common Prayer in ſuch Order and Form hele Rites
performing
aš is mentioned in thë faid Books, that is all thoſe Prayers, that are and Offices
therein appointed to be read upon any Occaſion, viz. at the Solemni-
zation of Matrimony, Viſitation of the Sick, Burial of the Dead,
Churching of Women, Confirmation of the Baptized, and at the
Confecration or Ordination of Biſhops, Prieſts, and Deacons, ſo that
if he who doth perform the ſaid Rites or Offices doth not uſe the
Prayers, and all the Prayers according as they are appointed by: the
Book of Common Prayer, he is an Offender againſt this Law.
ano
..
320
The Clergy-Man's Law: Or, Chap. XXXI.
Common
Papers, Sec.
14 Car. 2,
C. 4.
No other
To be uſed
and it is further enacted by the authority aforeſaid, That no forni
07 Dider of Common Prayers, adminigration of Sacramenis,
Kites 02 Ceremontes, ſhall be i. e. where the People in common man
relozt unto it, openly uſed in any Church, Chapel, oz other publick
Form to be place of or in any College of Hall in either of the Univerfities, the
openly uſed. Colleges of Weſtminſter, Wincheſter, o? Eaton, of any of them, a
ther than what is preſcribed and appointed to be uſed in and by the
(aid Book.
Provided always, Chat it ſhall and may be lawful to uſe the
in Colleges, morning and Evening Prayers, and all other players and Service
päeſcribed in and by the ſaid Book, in the Chapels or other publick
Places of the reſpetive Colleges and Balls in both the Univerüties,
in the Colleges of Weſtminſter, Wincheſter, and Eaton, and in the
Convocations of the Clergy of either Province, in Latin ; any Thing
in this ag contained to the contrary not withưanding.
Provided always, and be it enacted by the authority aforeſaid, That
the Biſhops of Hereford, St. David's, Afaph, Bangor, and Landaff,
and their Succellos, mhall take ſuch Deder among themſelves, foz the
Souts Health of the Flock committed to their Charge within Wales
,
that the Book hereunto annered be truly and eractly tranſlated into
the Britiſh c? Welſh Tongue ; and that the ſame lo tranſlated, and
being by them, oz any thiee of them at the leaſt, viewed, peruſed and
Tonguc.
allowed, be imprinted to ſuch number at lealt, ſo that one of the ſaid
Books ſo tranüated and imprinted, may be had for every Cathedral,
Collegiate and Parith Church, and Chapel of Eaſe in the Caid refpe-
aive Dioceſes and Places in Wales, where the Welſh is commonly
, before the May
and that from and after the Imprinting and Publilijing of the ſaid
Book Co tranſlated, the whole Divine Service thall be uſed and ſaid by
the minitters and Curates throughout all Wales within the ſaid Dio
ceſes where the Welſh Tongue is commonly uſed, in the Britiſh o?
Welſh Congue, in ſuch manner and form as is pzeſcribed according
to the Book bereunto annered, to be uſed in the Engliſh Tongue,
differing nothing in any Deder ol form from the fato Engliſh Book.
Prayers re-
Provided always, That in all thoſe Prayers, Litanies, and Col.
lating to leås, which any Tuay relate to the King, Dueen, o? Royal Progeny,
the Names be altered and changed from Time to Time, and fitted to
Queen, Soci
the preſent Dccation, accodding to Direction of lawful authority. 14
To be tran-
Dlated into
the Welch
the King,
Car. 2. cap. 4.
A Pulpit
Note, 'That from the aforeſaid Clauſes, it is, unlawful for any
Prayer not Miniſter to uſe any Form of Prayer, other than what is appointed in
excluded or 'the Book of Common Prayer in Place of publick Worſhip, and there-
fore it might ſeem that any Perſon uſing any other Form before his
Sermon (which is moſt common) is againſt this Statute. Now the Sta-
tute i Eliz. c. 2, is expounded to extend to ſuch other Prayers only
as are ufed in Hindrance of, or Oppoſition to, the Common Prayer ;
therefore thc Prayers ufed in the Pulpit before Sermon are ſaid not to
be within the Meaning of that Law, nor to be forbidden by it, be-
cauſe they are tolerated by thoſe in Authority, and fo cannot be faid
to be wilfully
, 04 obftinately uſed, according to the Words of that Sta-
tute, Cawley's Laws againji Recufants 21; and although no ſuch
Words are in the Statute 14 Car, 2. Yet the Proviſo of uſing
no other Form, co muſt be meant of the proper Divine Service
in the Desk which is not to be intcrrupted or mixed with any arbi-
trary Forms of private Perſons. But after the publick Order of
Common
4
Chap. XXXI. The Complete Incumbent.
321
.
naments,
Common Prayers is regularly obſerved, and fully abſolv'd, a Pulpit Church D:-
Prayer preparatory to the Sermon is not excluded or forbid by this or heren
any otħer Law." See Pafch. 1 7ac. 2. B. R. the King v. Sparks.
3 Modern Rep. 79.
And by the 55th Canon it is thus directed. Before all Sörmons, A Prayer for
Lectures and Homilies, the Preachers and Miniſters shall move the Christ's Holy
People to join with them in Prayer in this Form, or to this Effeet, as Church.
briefly as conveniently they inay. Te ſhall pray for Chriſt's Holy Ca-
tholick Church, &c. See the Canon.
But as ſome have tranfgreſſed this Canon by a long and profuſe Preachers
Way of praying before Sernion ; ſo others have run into another Ex: running into
tream, by affecting Brevity, and uſing only the Lord's Prayer, or ſome Extrcans of
ſhort Collect with it; which gave Occaſion to his Grace
, the Arch-
biſhop of Canterbury, in his Letter to the Right Reverend the Lords
Biſhops of bis Province, July 16. 1695, to give them this particular
Advice. It ſeems very fit; that. You require your Clergy, in their
Pragers before Sermoni, to keep to the Effect of the 55th Canoi, it
being coinmonly reported, that it is the Manner of ſome in every Dio-
ceſe, either to uſe only the Lord's Prayer (which the Canon preſcribes
as the Concluſion of the Prayer, and not the whole Prayer), or at leaſt
to leave out the King's Titles; and to forbear to pray for the Biſhops
as ſuch.
And Note; That all Rites and Ceremonies appointed in and by the
Book of Common Prayer, are ſtrictly to be uſed, and none other ;
and the Party offending is puniſhable by Indictment upon the Statute
14 Car. 2. cap. 4, or upon Statute i Eliz. cap. i; or by the Ordi-
nary.
And it is enacted, That auch Dinaments of the Church, and. of Eliza co z.
the miniffers thereof, thall be retained and be in ace, as was in this Ornaments
Church of England by Authodity of Parliament in the ſecond Year of in Ufe, until,
the Reign of King Edward the Sirth, until other Dider ſhall be Egoce
therein taken by the authority of the Dueen's Majeſty, with the aid-
vice of her Commilioners appointed and authorized under the Great
Seal of England for Cauſes Ecclefiaftical, ol of the getropolitan of
this Realm. and allo, That if there ſhall happen any Contempt op
Irreverence to be uſed in the Ceremonies 02 Rites of the Church, by
the miſuling of the Diders appointed in this Book, (which is to be
underſtood now of the preſent Book of Common Prayer) the Queen's
majetty may, by the like advice of the ſaid Commiſioners or getra.
politan, ordain oz publiſh ſuch further Ceremonies of Bites as may
be mot for the advancement of God's Glory, the Edifying of his
Church, and due Reverence of Chriſt's boly agyfteries and Sacta-
ments. Stat. i Eliz, cap. 2.
Note, It was by Vertue of this Proviſo, that King James I. in the As King
firſt Year of his Reign, gave Directions to the Archbiſhop, and other James the
High Commiſſioners, to review the Common Prayer Book ; and they Vertue of
did make ſeveral material Alterations and Enlargements of it, as in this Proviſo.
the Office of Private Baptiſm, and in ſeveral Rubricks and other Paf-
ſages, and added five or fix new Prayers and Thankſgivings, and all
that Part of the Catechiſm which contains the Doctrine of the Sacra-
ments. And yet the Powers, ſpecified in that Proviſó, feem not to
extend to the Queen's Heirs and Succeſſors, but to be only lodgd per-
fonally in the Queen ; yet the Book of Common Prayer fo altered,
ſtood in Force from the firſt of King James to the 4th of K. Charles II.
when
Ggſ
322
The Clergy-Man's Law, Or: Chap. XXXII
EPC.
Surplice, when upon a better Review, it was again altered and confirmed by
Parliament. And upon this Clauſe of the Statute, That ſuch Dina-
ments of the Church, and of the inifters thereof at all Times of
their miniſtring, fhall be retained, and be in Ule, as were in the
Church of England by authority of Parliament, in the ſecond Year of
A Dean de- the Reign of King Edward the fifth : It is ſaid, that the Dean of
hot uling a Chriſt-Church was convened before the Ordinary for Schiſm., becauſe
Surplice. he would not uſe a Surplice, and that therefore he was condemned as
a Schifmatick, and deprived of his Deanery in the Time of Queen E-
lizabeth. Specot's Cafe. Mich. 30 Eliz. 3 Leonard 199.
CH AP: XXXII.
Statutes for Uniformity of Prayers. Of Ho-
ly-Days to be obſerved. Miniſters bound
by Tenure' or Covenant to ſay Divine
Service in a Chapel, and of Chapels of
Eaſe, &c.
$
2. C. 4.
Enacted for Lthough upon the aforeſaid Statutes, Perſons, as hath been ſaid,
AL
eſtablishing
are puniſhable by Indictinent that neglect to read the Morning
the Book of
Common
and Evening Prayer, or that do not read them, or other publick Prayers,
Prayer. or adminiſter the Sacraments in ſuch Order and Form as is mentioncd
in the Book of Common Prayer, or uſe other forms of Prayer, or
Adminiſtration of Sacraments, Rites, or Ceremonies; than what is
appointed, Gc. or in any Reſpect offend againſt the farne ; yet for the
further eſtabliſhing of the Book of Common Prayer, it is further en-
acted by 14 Car. 2. c. 4.
Stat. 14 Car.
That the ſeveral good Laws and Statutes of this Realm, which
have been folmerly made, and are now in force for the Uniformity of
Prayer and Adininiftration of the Sacraments within this Realm of
England, and places afoželaid, thall ſtand in full force and Strength,
to all intents and purpoſes whatſoever, for the eſtablithing and con-
firming of the ſaid Book, entituled, 'The Book of Common Prayer,
and the Adminiſtration of the Sacraments, and other Rites and Cere-
monies of the Church, according to the Uſe of the Church of Eng-
land; together with the Pfalter or Pfalms of David, pointed as they
are to be ſung or faid in Churches, and the Form and Manner of Ma-
king, Ordaining and Confecrating of Biſhops, Prieſts and Deacons,
herein before-mentioned to be joined and annered to this Art; and fhalt
be applied practiſed, and put in ure, for the puniſhing of all Dirences
contrary to the ſaid Laws, with relation to the Book afoļelaid, and
no other.
The Statutes that were in Force for the Uniformity of Prayer and
tinued and Administration of the Sacraments before this Statute, and which are
applied by continued by the aforeſaid Clauſe to be applied to this new Book of
4.
3
Common
Statutes con-
Chap. XXXI. The Complete Incumbent.
323
C. 2.
Common Prayer, are theſe that follow, 2 and 3 Ed. 6.6. 1. 5 and 6 Statutes of
Tipufo:niitr,
Ed. 6. c. 1. i Eliz. cap. 1.13 El. cap. 12.
The Statutes of the 2 and 3 Ed. 6. c. 1, and the 5 and 6 Ed. 6.
C. 1, although they be in Force, ſo that an Offender againſt the ſame
may thereupon be endicted, yet becauſe that there is not any Thing
in them but what is contained in the Statute of 1 Eliz. C. 2. I ſhall
only ſet down the ſaid 1 Eliz. c. 2, and but ſo much of it in this
Place as doth touch the Miniſter's Duty.
Sect. 1. Where at the Death of our late Sovereign Lord King Stat. · Eliz,
Edward the Sirth, there remained one unifozm Dider of Common
Service and prayer, and of the adminiſtration of Sacraments,
Rites and Ceremonies in the Church of England, which was ſet foith
in one Book, entituled, The Book of Common Player and adininis
itration of Sacraments, and other Rites and Ceremonies in the
Church of England, authorized by Act of Parliament, hoiden in the
fifth and firth Years of our faid late Sovereign Lod King Edward
the Sirth, entituled, an gå for the Uniformity of Common Paper
and adminiſtration of the Sacraments, the which was repeated and
taken away by act of Parliament in the firî year of the Reign of our
late Sovereign Lady Queen Mary, to the great Decay of the dae
Honour of God, and Diſcomfort to the Profeflous of the Truth of
Chritt's Religion.
Sect. 2. Be it therefore enacted by the authority of this preſent Repeal of
Parliament, Chat the ſaid Efatute of Repeal, and every Thing of Queen
therein contained, only concerning the ſaid Book, and the Service, Mary, Eyc.
Adminiſtration of the Sacraments, Rites and Ceremonies, contains
ed or appointed in od by the ſaid Book, ſhall be void and of none Ef-
fort, from and after the feaſt of the Nativity of St. John Baptiſt
nert coming ; and that the ſaid Book with the
Dider of Service,
and of the Adnjiniftration of the Sacraments, Rites and Ceremo:
nies, with the alteration and additions therein added and appointed
by this Etatute, fhall ſtand and be from and after the ſaid feaſt of
the Nativity of St. John Baptiſt in full force and Effeå, accouding
to the Tenour and Effea of this #tatute, any Thing in the aforeſaid
Eſtatute of Repeal to the contrary notwithſtanding.
Sect. 3. and further, be it enaãed by the Queen's Highneſs, with King Ed-
the Attent of the Lolds and Commons in this preſent parliament
mon Prayer
allembled, and by the authority of the ſame, That all, and fingular to be uſed.
99 iniffers in any Cathedral oz Parill Church, od other place with:
in this Realm of England, Wales, and the marches of the ſame,
of other the Queen's Dominions, thail from and after the Feaſt of
the Nativity of St. John Baptiſt neft coming, be bound to ſay and
uſe the patteris, Even Song, Celebzation of the 102d's Supper,
and adminiſtration of each of the Sacraments, and all the Common
and Dpen Dayer, in ſuch Dider and form as is mentioned in the ſaid
Book Co authorized by Parliament in the ſaid fifth and tirth Years of
the Reign of King Edward the Sirth.
Sect. 4. And if any manner of Parloni
, Uicar, or other whatſo- uſing any
Penalty for
ever inifter, that ought of fhould äng 02 Cay Common Prayer other Rites
mentioned in the ſaid Book, 02 minifter the Sacraments, from and or Ceremo-
after the Feaſt of the fativity of St. John Baptiſt nert coming, a Parfon 07
refuſe to uſe the ſaid Common Prayers, od to minifter the Sacra. Vicar, Soc.
merits in ſuch Cathedral op Pariſh Church, oz other places as he
ſhall uſe to miniffer the ſame, in ſuch Dider and form, as they be
Ggg 2
menti,ned
ward's Com
324
.
The Clergy-Man's Law: Or, Chap. XXXII
Estatutes of mentioned and ſet fouth in the ſaid Book ; 0d fall wilfully od obrti,
Uniformity; nately, ſtanding in the ſame, uſe any other Rite, Ceremony, D1
der, Fom, O2 Banner of Celeb?ating the Lold's Supper, openly oz
privily, oi Dattens, Cven:Songs, Adminiftration of the Sacra
ments, 02 other open Players than is mentioned and ſet forth in the
ſaid Book, [Open Prayer in and throughout this Act, is meant that
Prayer which is for others to come unto or hear, either in common
Churches or private Chapels or Oratories, commonly called, the Ser-
vice of the Church; ] oſ fhall preach, declare, 02 (peak any Thing
in the Derogation 02 Depraving of the ſaid Book, 02 any Thing
therein contained, 02 of any part thereof, and ſhall be thereof law
fully convicted, accožding to the Laws of this Realm, by Uerdia of
Cwelve ogen, og by his own Confeflion, od by the notorious Evi-
dence of the fact, thall loſe and forfeit to the Queen's highneſs,
her Heirs and Succeffors, for his firſt Dffence, the Profit of all his
Spiritual Benefces of Promotions coming og artling in one whole
Pear nert after his Conviction. and alſo, that the Perſon ſo coli:
vi&ed fhall for the ſame Dffence ſuffer 3mpriſonment foż the space of
fir months without Bail of painprice.
Sect. 5. And it any ſuch perſon once conviã of any Difence corta
cerning the Premiffes, fhall after his firtt Conviäion eftfoons offend,
and be thereof in form aforeſaid lawfully convicted, that then the
Came Perſon thall for his ſecond Dffence Cuffer Impriſonment by the
Space of one whole Year, and alſo ſhall therefore be deprided ipfo
facto of all his Spiritual promotions, and that it thall be lawful
to all patrons 02 Donous of all and fingular the ſame Spiritual
Promotions, og af any of them, to preſent of collate to the ſame,
as though the perſon of perſons to offending were dead.
Sect. 6. And that if any ſuch Perſon of Perſons, after he thall
be twice convi&ed in form afojelaid, fall offend againſt any of the
Premifles the Third Cime, and thall be thereof in form aforeſaid
lawfully convicted, that then the perſon fo offending, and conviñed
the third Cime, ſhall be deprived ipfo facto of all his Spiritual
Promotions, and alſo ſhall fuiffer Impriſonment during his Life.
if the Perſon
Sect. 7. And if the perſon that fhall offend, and be con viñed ilt
be not bene- Form afojelaid, concerning any of the Premiffes, ſhall not be bene-
ficed, noz have any Spiritual Promotion, that then the fame Perfon
ſo offending and convič, fhall foz the firſt Difence ſuffer Jmpriſonment
during one whole Year nert after his ſaid Conviãion, without Bail of
painpäife.
And if any perſon not having any Spiritual Promotion, after his
firt Conviction thalt eftfoons affend in any Ching concerning the
Premiffes, and thalt in form afojelatd be thereof lawfully conviđed,
that then the ſame perſon thall for his ſecond Dffence füffer Impri
fonment during his Life.
Charge to the Sect. 8. And for the due Erecution hereof, the Queen's moſt er:
Ordinaries. cellent Dajefty, the Lauds Tempozal, and all the Comuions in this
prefent parliament aſſembled, do in God's Name earneſtly require and
Charge alt the archbithops, Billjops, and ather Didinaries, that
they thall endeavour themfelves, ta the uttermoſt of their knowledges,
that the due and true Crecution hereof may be had throughout tijeir
Dioceſe and Charges, as they will anſwer befode God for ſuch Evils
and Plagues wherewith Almighty God may juftly puniſh his people
foz niegleâing this good and wholſome Law.
Scet. 9.
1
i
4
Chap. XXXII. The Complete Incumbent.
325
Punithnient
Bishop
affe-
Sect. 9. And foz their authority in this behalf, be it further enacted Statutes op
Wniñozmity
by the authority afozelaid, That all and dingular the ſaid archbiſhops,
Bifhops, and all other their Dfficers ererciêng Cccleñatical Jurir
digion, as well in Places erenipt as not erempt within their Dioceſs,
Thall have full power and authouty by this act to reform, corred, and
by Centuies.
puniſ), by the Cenſures of the Church, all and liugular Perſons which
thail offend within any their Jurisdictions 02 Dioceſe, after the ſaid
Feaſt of the Nativity of Saint John Baptiſt nert coming, againlt this
ga and Statute ; any other Law, Statute, Paviledge, Liberty, 02
Plovilion, heretofore made, had of Cuffered to the contrary not with
ſtanding
Sect. 10. and it is opdained and enacted by the authority aforeſaid, That
all and every Juſtices of Oyer and Determiner, 02 Juſtices of auize, Juſtices Au-
ſhall have fuil Power and Authojity in every of their open and general
thority.
Sellions, to enquire, hear and determine all and all Manner of Dffen:
ces that ſhall be committed ol done contrary to any article contained
in this preſent Act within the Limits of the Commillion to them direct.
ed, and to niake Proceſs foz the Erecution of the ſame, as they may
do againſt any perſon being endided befoze them of Treſpaſs, o2 lawa
fully conviđed thereof.
Seet. 11. Provided always, and be it enacted by the Authority afoje.
Caid, That all and every Archbichop, and Bifhop, chall and may at all
Time and Timcs, at his Liberty 02 Pleaſure, join and aſſociate bim: ciated.
ſelf by Uertue of this act, to the ſaid Juſtices of Oyer and Determi-
ner, od to the ſaid Juſtices of alize, at every of the ſaid open and ge-
neral Seſtions to be bolden in any place within bis Dioceſs, foz and
to the Enquiry, pearing and Determining of the Dffences aforeſaid.
Sect. 12. and be it further enađed by the authority afozefaid, That
no Perlon oz Perſons ſhall be at any Time impeached, 02 otherwiſe
moletted, of oz for any of the Difences above-mentioned, bereafter to
be committed 02 done contrary to this da, unleſs he of they ro offend:
ing be thereof indiđed at the nert general Sellions to be holden befoje
any ſuch Juſtices of Oyer and Determiner, 0l Juſtices of Alize, next
after any Offence committed 02 done contrary to the Tenour of this
act.
Sect. 13. provided always, and be it oldained and enađed by the au-
thority aforeſaid, That all atid angular Lolds of the Parlianient, for
the Third Difence above-mentioned, lhall be tried by their peers.
Sect. 14. Provided allo, and be it ordained and enađed by the author
rity afozefaid, That the Mayod of London, and all other mayors,
Bailiffs, and other Head-Dficers of all and fingular Cities, Boroughs,
and Towns Corporate within this Realm, Wales, and the marches of
the ſame, to the which Jutices of a fize do not commonly repair, mall
have full power and Authority, by Uertue of this ax, to enqutre, bear
and determine the Dffences abovelaid, and every of them, yearly,
within Fifteen Days after the Feaſt of Eaſter, and Saint Michael the
Archangel, in like manner and form as Juſtices of Afüze, and Oyer
and Determiner may do.
Sect. 15. Provided always, and be it oždained and enacted by the
Authority aforeſaid, Chat all and fingular archbiſhops and Biſhops,
and every of their Chancellois, Committaries, Archdeacons, and 8
ther Didinaries, baving any peculiar Ecclefiaftical jurisdiâion, chall
have full power and Authority by Gertue of this Aa, as well to en.
quire in their Uiſitation, Synods, and elſewhere within their Juriſ.
dition, at any other time and Place, to take Acculations and Info].
mations
326
The Clergy-Man's Law: Or, Chap. XXXI
How the
A& is mi-
ftaken.
Hold-Daps. mations of all and every the Chings above-mentioned done, commit:
mitted, 02 perpetrated within the Limits of their Jurisdiions and
Authozity, and to punith the ſame with admonition, Ercommunicati
011, Sequeſtration, of Deprivation, and other Cenſures and Proceſs,
in like form as heretofoze hath been uſed in like Caſes by the Duleen's
Eccleliaftical Laws.
Sect. 16. Provided always, and be it enated, That whatſoever Per.
Cons offending in the premities, thall for their Dffences firſt receive
Punithment of the Didinary, having a Teſtimonial thereof under the
Caid Didinary's Seal, ſhall not for the ſame Difenice eftfoons be con:
vided befože the Juſtices: and likewiſe receiving for the ſaid firft Offence
Puniſhment by the Juſtices, ſhall not for the Came Difence eftfoons
receive Punifhment of the Didinary, any Thing contained in this act
to the contrary notwithaanding. Stat. i Eliz. cap. 2.
Note, That the Title of this Act in the printed Book is miſtaken,
Title of this which muſt be regarded in framing an Indictment upon it; And it hath
been a great Queſtion when this Parliament of 1 Èl. began. Pculton
faith, the 23d of January ; Dyer, the 25th of January, Dyer 203, Coke,
the 25th of February, 4 Inftit. 7. And for the Incertainty when it
commenced, an Information was brought upon this Statute againſt
Sir Edward Walgrave and his wife, without any ſpecial Recital of the
Statute, only ſuppoſing the Offence to be contra formam effe&tum
cujufdam ftatuti in Parliamento tent. apud Weſtuuonafterium anno pri-
mno, &c. for this being a general Statute need not to be particularly re-
cited. Cawley's Laws againſt Recuſants 24.
Note alfo, That although this Act hath inflicted a Puniſhment for
depraving or not obſerving the Book of Common-Prayer, yet the fame
being allowed and commanded to be obſerved for Uniformity of Com-
mon-Prayer, and the Unity and Peace of the Church, the Éccleſiaſti-
Deprivation' cal Judge may deprive ſuch Parſon, Vicar, &c. as ſhall deprave and
by Ecclefia-
not obſerve the ſaid Book, as well for the firſt Offence, as he
might have done by the Cenſures of the Church, and the Eccleſiaſti-
cal Laws, if no Form of Puniſhment had been inflicted by this Act;
and this doth evidently appear by the Proviſo in this Act, for thereby,
notwithſtanding any Thing in the Act contained, they may puniſh ſuch
Offenders by Admonition, Excommunication, Sequeſtration or Deprivati-
on, and other Cenſures and Procefs, in like Form as heretofore hath
been uſed in like Caſes by the Queen's Eccleſiaſtical Laws, and are
not bound to purſue the Form preſcribed by the faid Act, which is
to puniſh the Offender according to the Temporal Law. Mich.
33 Eliz. Caudrey's Cafe, Coke 5. de Jure Ecclefiaftico, fol. 5, 6.
Every Almanack, and particularly that in the Book of Common-
Prayers, doth declare what thoſe Holy-days be, on which Perſons, as
aforefaid, obliged to ſay Morning and Evening Prayers, are to ſay the
fame, and moſt of thoſe Days are appointed to be kept Holy by Stat.
5 and 6 Ed. 6. cap. 3, which is as followeth. fou as much as at
all Times ogen be not ſo mindful to laud and praiſe God, ſo ready
to reſort and hear God's yoly Włod, and to come to the Holy Com-
munion, and other laudable Rites which are to be obſerved in every
Chriſtian Congregation, as their bounden Duty doth require : Theres
foue to call pen to Remembrance of their Duty, and to help their
Infirmity, it hath been wholſomely provided, that there ſhould be come
certain Times and Days appointed, wherein the Chriftian fhould ceaſe
from all other kind of Labours, and ſhould apply themſelves only and
wholly
ftical Judge,
.
4
Chap. XXXII. The Complete Incumbent.
327
Wherefore
wholly unto the aforeſaid Holy Woks, properly pertaining unto true Xolo:Dap:.
Religion, that is, to hear, to learn, and to remember Almighty God's
great Benefits, his inanifold agercies, his ineſtimable gracious Good.
nels, ſo plenteouſly poured upon all his Creatures, and that of his ill.
finite and unſpeakable Goodneſs without any Pan's Deſert. And in
Remembrance thereof, to render unto him moſt high and bearty
Thanks, with Prayers and Supplications foz the Relief of all out
daily Nécellities, and becauſe theſe be the chief and principal Tioks
wherein man is commanded to wo thip @od, and do p?operly pertain
unto the firft Table, therefore as theſe atloks are both most common-
ly, and alſo may well be called Goo's Service, ſo the Times appoint:
ED, eſpecially fol the ſame, are called holy days, not for the matter
01 Nature either of the Time 02 Day, nor for any of the Saints
Sake, whoſe memories are håd on thote Days (for to all days and
Times conldetéd are God's Creatures, and all of like Holineſs, but to called
for the Nature and Condition of thoće godiy and holy woks, where:
with only God is to be honoured, and the Congregration to be rditi
ed, whereunto ſuch Times and Days are ſanctified and hallowed; that
is to ſay, ſeparated from all prophane Ules, and dedicated and ap:
pointed, not unto any Saint, 02 Creature, but only unto God and his
true Wolfhip ; neither is it to be thought, that there is any certain
Time of definite Rumber of Days preſcribed in Holy Scripture, but
that the appointment both of the Time, aiid alſo of the number of
the Days, is left by the authołty of God's Word to the Liberty of
Chef's Church, to be determined and aligned orderly in every coun:
try, by the Diſcretion of the Rulers and miniſters thereof, as they
fhall judge moſt efpedient to the true ſetting fojth of God's Glowy,
and the Edification of their people. Be it therefore enacted by the
King our Sovereign Loid, with the Affént of the Lodd's Spiritual allo
Cempozal, and the Commons in this preſent Parliainent atfernbled,
and by the authority of the ſame, that all the Dáyg hereafter theiition
ed thall be kept, and commanded to be kept Holy days, atid none other ;
that is to ſay, all Sundays in the year, the Days of the Féaff of the What Holy-
Circumciſion of our Lold Jeſus Chrift, of the Epiphany, of the Puri-
days.
fication of the Bletled Uirgin, of Saint Matthew the Apoſtle, of the
Annunciation of the Bleſſed Virgin, of Saint Mark the Evangelift,
of Saint Philip and Jacob the Apoſtles, of the Aſcenſion of our Lord
Jeſus Chriſt, of the Nativity of Saint John Baptiſt, of Saint Peter
the Apoſtle, of Saint James the Apogle, of Saint Bartholomew the Apoi
Atle, of Saint Matthew the Apoſtle, of Saint Michael the archangel,
of Saint Luke the Evangelift, of Saint Simon and Jude the ápodleg,
of All-Saints, of Saint Andrew the Apotle, of Saint Thomas the
Apoftle, of the Nativity of our Lold, of Saint Stephen the Party2,
of Saint John the Evangelict, of the Holy Innocents, Monday and
Tueſday in Eafter-Week, Monday and Tueſday ilt Whitſun-Week;
and that none other Day thall be kept and conimanded to be kept Bolya
day, oz to abſtain from lawful bodily Labour.
And it is alſo enacted by the Authority atojeľalo, That every Evet of Fafting
Day next going before any of the aforeſaid Days of the Hearts of the Evense
Nativity of our Loio, of Eaſter, of the Aſcenſion of our Lord, Pente-
coſt, and the Purification, and the Annunciation of the aforefaid Bléſ
ſed Virgin, of All Saints, and of all the fatd Feafts of the Apotles
(othet than of Saint John the Evangelift, and Philip and Jaceb) thail
be
328
The Clergy-Man's Law: Or, Chap XXXII:
Punithnicnt
Statute be
in Force.
Lolv• Draps. be fafted, and commanded to be kept and obſerved, and that none o:
ther Even 02 Day thall de commanded to be fatted.
and it is enađed by the authority aforeſaid, That it ſhall be lawful
of Offenders. to all archbiſhops and Biſhops in their Diocelles, and to all other
having Eccleſiaſtical or Spiritual Jurisdiction, to estquire of every
Perſon that thall offend in the Premiſes, and to puniſh every much
Dffender by the Cenſures of the Church, and to enjoin him ol them
fuch Denance as ſhall be to the Spiritual Judge by his Diſcretion
thought meet and convenient.
Plovided always, That this ac, of any Thing therein contained,
ſhall not extend to abogate od take away the Abftinence from Flech in
Lent, Coco
Lent, op on Fridays and Saturdays, or any other Day which is already
appointed fo to be kept, by Gertue of an aq made and provided in the
third Year of the Beign of our Sovereign Lord the King's Majeſty
that now is, ſaving only of thoſe Evens ol Days whereof the Holy.day
nieft following is abrogated by this Statute; any Thing above-mien-
tioned to the contrary in any wiſe notwithltanding.
Q. If the But this Act being repealed by 1 Mar. cap. 2, and after revi-
ved by i Jac. cap. 25, to continue until the End of the firſt Seſſions
of the next Parliament, and not having been by any Parliament ſince
continued or revived, fome Queſtions are made of the Continuance of
it. See lingato's Abridgment, the 5 and 6 Ed. 6. C. 3. 15, by the i
Mar. Parl. 1. Repealed, and afterwards by 1 Jac. 25 again repealed;
and therefore Quære, Whether it be now in Force; unleſs it had been
revived by ſpecial Words ? But it ſeems to be well revived by Cokes
2 Inſtit. 686.
Liturgy Ca4
But grant the Statute for Obfervance of Holy-days to be not now in
full Force and Vertue, yet ſince the Calendar prefixed to the Liturgy,
Feaſts, Egion and the ſeveral Rules and Directions relating to the Uſe of it, are
now received and eſtabliſhed with the ſaid Book of Common-Prayer
by the Act of Uniformity, 14 Car. 2, the Obſervance of our Moveable
and Immoveable Feaſts, together with the Days of Fafting and Abſti-
nence, may
be called the Law of the Land, as well as the Order of
the Church. See annexed to our Liturgy Calendar, A Table of all
the Feaſts that are to be obſerved in the Church of England throughout
the Year.
Alſo other Days are by ſpecial Acts of Parliament ordained to
be kept Holy, as Days of Thankſgiving; which Acts are theſe that
follow.
lendar of
Stat. 3 Jac. 1. cap. 1. An Act for a Publick Thankſgiving to Almighty
God every Year on the Fifth Day of November.
.
F
Beatmuch as almighty God hath in all ages thewed his power
An A&t for
the Fifth of and Deccy in the miraculous and gracious Deliverance of his
November.
Church, and in the Proteäion of Religious kings and States ; and
that no Nation of the Earth hath been blelled with greater Benefits
than this kingdom now enjoyeth, having the true and free Profellion
of the Goſpel under our mot gracious Sovereign Loud King JAMES,
the moſt great, learned and religious king that ever reigned therein,
enriched with a moft hopeful and plentiful Plogeny proceeding out of his
Royal Loins, promiſing Continuance of this happineſs and Profeflion
to all Pofterity; the which many malignant and devilich Papifts,
Jeftits and Seminary Priets much envying and fearing, conſpired
mot
3
Chap. XXXII. The Complete Incumbent.
329
molt hozribly, when the King's moſt ercellent majegy, the Queen, Holv-Dars.
the Punce, and all the Lolds Spiritual and Tempozal, and Com
mons, ſhould have been aſſembled in the Upper-houſe of Parliament
upon the fifth Day of November, in the year of our Lold 1605. Cud:
denly to bave blown up the ſaid whole houſe with Oun-powder : an
Invention Co inhumane, barbarous and cruel, as like was never before
beard of, and (as ſome of the principal Conſpiratols thereof confeſs)
piirpoſely deviled and concluded to be done in the ſaid houſe, that
where fundyy neceſſary and religious Laws for Preſervation of the
Church and State were made, which they faldly and fanderoudly terni
Cruel Laws, enacted againſt them and their Religion, both place and
Perſons ſhould de all deſtroyed and blown up at once, which would
pave turned to the utter Ruin of this whole Kingdom, yad it 1106
pleaſed Almighty God, by inſpiring the King's moſt ercellent majeſty
with a Divine Spirit, to interpret ſome dark phaſes of a Letter flews
ed to his Majeſty above and beyond all ojdinary Condruction, thereby
miraculoudy diſcovering the hidden Treaſon not many hours before
the appointed Time foz the Erecution thereof : Therefore the King's
moft ercellent majetty, the Lord's Spiritual and Tempozal, and all
his Dajelly's faithful and loving Subjects, do moſt jufly acknowledge
this great and infinite Bleling to have pzoceeded meerly from ODD
his great Dercy, and to his moſt holy Name do aſcribe all yonour,
Glozy and Praiſe : and to the End that this infeigned Thankfulneſs
may never be fozgotten, but be had in a perpetual Remembrance, that
all ages to come may yield Praiſe to his Divine majeſty foz the ſame,
and have in Pemody THIS JOYFUL DAY OF DELIVE-
RANCE:
Be it therefore enađed by the King's moft ercellent Pajegy, the
Lold's Spiritual and Tempozal, and the Commons in this preſent
Parliament aſſembled, and by the authority of the ſame, That all and
angular Miniters in every Cathedjal and Pariſh Church, oj other u-
ſual place fox Common Prayer, within this Realm of England, and
the Dominions of the ſame, ſhall always upon the Fifth Day of No-
veniber Cay Morning Prayer, and give unto Almighty God Thanks
for this moſt happy Deliverance : and that all and every perſon and
Perſons inhabiting within this Realm of England, and the Dominf.
ons of the ſame, Thall always upon the Day diligently alid faithfully
relozt to the Patily Church 02 Chapel accuſtomed, ol to come uſual
Church o2 Chapel where the ſaid Morning Prayer, preaching, 020:
ther Service of God ſhall be uſed, and then and there to abide ozderly
and ſoberly during the Cime of the ſaid Prayers, Preaching, 02 other
Service of God there to be uſed and miniftred.
And becauſe all and every perſon may be put in ind of his Duty,
and be then better prepared to the ſaid holy Service, be it enađed by
the authority afozelaid, That every miniffer ſhall give Warning ta
his Parithioners publickly in the Church at morning Player, the
Sunday befoļe every ſuch Fifth Day of November, for the due Dbſec-
vation of the ſaid Day: And that after ng sining Prayer 02 Preaching
upon the ſaid fifth Day of November, they read publickly, diſtinälg
and plainly this preſent aa.
For the more effectual ſolemnizing this Annual Feſtival, by the
King's Order there was drawn up by the Biſhops of the Church, A
Form of Prayer with Thankſgiving to be uſed jearly 1pon the Fifth A Form of
{H 11 h
Prayer.
Day
The Clergy-Man's Law : Or, Chap: XXXII.
di a&
A&t for
,
330
to 1v=Da Day of November, for the happy Deliverance of the King and the
Three Eſtates of the Realm, from the moſt traiter01s and blocdly in-
tended Malacre by G 1112-power. Printed and preſcribed at the End of
our Conimon-Prayer.
Stat. 12 Car. 2. 14. An Act for a perpetual Anniverſary Thankſgi-
cing, on the Nine and Twentieth Day of May.
Dzafmuch as Almighty God thje king of kings, and ſole Diſpoſer
à Thankſgi. of all earthly Crowns and Kingdoms, bath by bis Ali:Cwaying
ving on the
29th of May. Providence and power miraculoudy demonârated in the View of al
the Trojld bis tranſcendent Mercy, Love and Glaciouſneſs towards
his moft ercellent qajeſty CHARLES the Second, by his elpe-
cial Grace, of England, Scotland, France and Ireland, King, Defen:
der of the true Faith, and all his gajeſty's Loyal Subjeãs of this bis
Kingdom of England, and the Dominions thereunto annered, by his
Majeſty's late moſt wonderful, glodious, peaceable and joyful Rentals
tation to the actual pofleflion and Ererciſe of his undoubted heredita:
ry, Sovereign and Legal Authority over them (after ſundiy Years for
ced Ertermination into foreign Parts, by the moſt Traiterous Conſpi.
racies and armed Power of Ufurping Tyrants, and erecrable perfidi-
ous Traitois,) and that without the lcaſt Dppoſition of Effution of
Blood, through the Upanimous, Cozdial, Loyal Uotes of the Lords
and Commons in this preſent Parliament aſſembled, and paſionate
Delives of all other bis majeſty's" Subje&s : Tihiçb unerpellibie
Blefling, (by God's own moſt wonderful Diſpenſation) was comipleat:
ed on the Twenty-ninth Day of May laſt patt, being the moſt mema:
rable Birthday, not only of his pajeſty both as a man and Prince,
but likewiſe as an actual King, and of this and other bis Majeſty's
Kingdoms, all in a great eafure new born and raiſed from the
Dead on this moft jayful Day, wherein many Thouſands of the 110-
bility, Gentry, Citizens, and other bis Lieges of this Realni, con
durted his Majefty unto his Royal Cities of London and Weſtmin-
fter with ali poſible Crpzellions of their joy and loyal affections, in
far greater Triumph than any of his moſt victorious Pedecellois
Kings of England, returned thither from the foreign Conqueſts.,
and both bis majetty's Houſes of Parliament, with all dutiful and
joyful Demonftrations of their allegiance, publickly received, and cod:
dially congratulated his Yajeſty's molt happy Arrival, and Juveftis
ture in bis Royal Tbione, at his Palace at whitehall : Upori all
which confiderations, this being the Day which the Lord himſelf hath
made and crowned with ſo many publick Bledings and fignal Deli-
verances, both of his gajeſty and bis People, from all their late moſt
deplojable Confulons, Divifionis, Tulars, Devaſtations, and Dpplef-
fions, to the End that it may be kept in perpetual Remembrance in all
Ages to come, and that his Sacred Bajeſty with all his Subjects of
this Realm, and the Dominions thereof, and their patterities after
them, might annually celebratę the perpetual Memowy thereof, by la-
crificing
, with one and Coice, in a 'molt
manner, foz all theſe publick Benefits received and coriférred on them
upon this moſt joyful Day. Be it therefore enađed by the King's moſt
ërcellent 99ajeſty, the Lords and Commons in this preſent Parlias
ment aſſembled, and by the authority of the ſame; that all and fingular
Miniſters of Hod's Cold and Sacramients in every Churcl, Chapel,
3
alio
Chap. XXXII. The Complete Incumbent. .
331
and other uſual place of Divine Service and Publick Prayer, which Poly-Dap-
i rrow are, oj bereafter mhall be within this Realm of England, and
the reſpective Domintons thereot, and their Succeffois, fhall in all
ſucceeding ages annually celebrate the Twentyninth Day of May, by
rending their hearty publick Praiſes and Thankſgivings tinto almigh:
tp God, fou all the foże-mentioned extraojdinary Mercies, Bleſtings
and Deliveranccs received, and mighty acts done thereupon, and des
clare the famie to all the people there allembled, and the Generations
yet to come, that ſo they may for ever praiſe the Lold (o the came,
whole Name alone is ercellent, and his Glory above the Earth and
Heavens.
and be it further enacted, That all and every perſon and perſons
inhabiting within this Kingdom, and the Dorinions thereunto belong.
ing, chall upon the ſaid Day annually reſołt with Diligence and Devotion
to come uſual Church, Chapel, or Place where ſuch publick Thankſgi:
vings and Praiſes to Hod's mof Divine Majeſty thall be rendied, and
there olderly and devoutly abide during the ſaio publick Thankſgiving,
Prayers, Preaching, Singing of Plalms, and other Service of God
there to be uſed and miniffred.
and to the End that all Perſons may be put ili mind of their Duty
therein, and be the better prepared to diſcharge the ſame with that
Piety and Devotion as becomes them, be it further enacted, Chat
every minifter ſhall give Dotice to his Pariſhioners publickly in the
Church at 99 onning Prayers the Lold's Day nert before every ſuch
Twenty-ninth Day of May, for the due Obſervation of the ſaid Day,
and chall then likewiſe publickly and diftinãly read this preſent Ad to the
People. Stat. 12. Car. 2. C. 14.
And to make the Obſervance of this Feſtival more Solemn and Uni-
form, by the King's Order there was drawn up by the Biſhops, A Form A Form of
of Prayer with Thankſgiving to be uſed yearly upon the 29th Day of Prayer.
May, being the Day of his Majeſty's Birth, and happy Return to his
Kingdoms.
nuary
There is likewiſe an Act of Parliament for the yearly keeping à An A&t for a
Faft on the 30th of January, the Day of the execrable Murder of Faft on the
King Charles the Firſt, but the Act not appointed to be read in Churches. 30th of f*
For the more regular Obſervation of this Faſt, there was compiled by
the Biſhops at the Appointment of the King, A Form of Commons
Prayer to be uſed upon the 30th Day of January, being the Day of the
Martyrdom of King Charles the Firſt.
Note, Theſe three Forms of publick Service are not exprefly confirm- Not com-
firmed. by
ed by any Act of Parliament, but are authorized by this Order of the
King.
Parliament
.
O
Charles R.
UR Will and Pleaſure is, That theſe Three Forms of Prajer Bue autho-
and Service made for the 5th of November, the 30th of January, King's Or-
and the 29th of May, be forthwith Printed and Published, and for the der.
future annex'd to the Book of Common-Prayer and Liturgy of the
Church of England, to be uſed yearly on the ſaid Days; in all Cathe-
drals and Collegiate Churches and Chapels
, in all Chapels of Colleges
and Halls within both our Univerſities, and of our Gölleges of Eaton
Hb h 2
and
.
332
The Clergy-Man's Law: Or, Chap. XXXII.
and Wincheſter, and in all Parish Churchs and Chapels within Omp
Kingdom of England, Dominions of Wales, and Town of Berwick up
Chapels,
&c.
012 Tweed.
Given at Our Court at Whitehall the
Second Day of May, in the Four-
teenth Year of Our Reign.
Kotiče to be
given.
Offenders to
And divers like Orders have been for the Reading of particular
Forms of Prayer on certain Days; as that of the eighth of March,
being the Day of Queen Anne's Acceſſion to the Throne, dic.
Miniſters are not only bound to give Notice of the aforeſaid fpecial
Days appointed to be kept Holy, but alfo they are on the Sunday
before-going any Holy-day, or Fafting-days after the Communion-Ser-
vice, to declare to the People what Days are in the Week following
to be obſerved, as Holz-days or Fafting-days. Rubrick.
Note, That no Penalty is appointed for thoſe that do not celebrate
be tried and Divine Service on the Days appointed to be obſervod by the aforeſaid
punished by Acts, nor is aný Penalty fét by Stat. 14 Car. 2. cap. 4, for thoſe that
neglect to ſay Divine Service on any Sunday or Holy-day"; and there-
fore fuch as are negligent muft be punished in the ordinary way of Try-
al by Jury, &c. and the Juſtices are to impoſe a reafonable Fine,
or elſe they may be puniſhed in the Eccleſiaſtical Court by the Ordi-
nary, as I conceive; Quatë, as to the Ordinary's Power to puniſh for
the Neglect of the keeping the Days fpecially appointed by the three
laſt Acts ; but I think, that however he may puniſh the Neglect of
Divine Service on Sundays, and other Holy-days, by the Statute 14
Cair. 2. cap. 4, with Statute i Elz. 1, and by the Statute 14 Car. 2.
cap. 4, every Miniſter is bound to read the Morning and Evening Pray-
ers, in the Book of Common-Prayer contained, upon every Lord's
Day, and upon all other Days, and Occaſions, and at the Times theri-
in appointed, &c. And thereby alſo the Statute of Eliz. 2, is to be
applied to this Book of Common-Prayer now in force, which gives to
the Ordinary an Authority to punish all Offences againſt the ſaid Act,
unleſs it may be objected, that the ſaid Act of 1 Eliz. 2, doth not en
join the Reading of the Prayers but only the Reading of them in ſuch
Order and Form as is mentioned in the ſaid Book, at fuch Times
when they are read, and then the Ordinary hath not Power thereby
to puniſh the Neglect of reading Prayers on Sundays or other Holy-
days; Quære ; however, ſuch Neglecters may be puniſhed in Temporal
Courts as before is faid.
Manor,
See i Roll.
Abr. 110.
Chapel Par. If A. be ſeized of a Manor whereof a Chapel is Parcel, and a Spiritu-
cel of a
al Corporation doth covenant by Deed indented with A. and his Heirs
to celebrate Divine Service weekly in the ſaid Chapel for the Lord
of the Manor and his Servants ; in this Cafe, the Allignees of A. fhall
have an Action of Covenant, albeit they are not named in the Deed,
for that the Remedy by Covenant doth run with the Land to give Da-
mages to tkie Party grieved, and is as Appurtenant to the Manor. But
if the Covenant had been with a Stranger, and not with the Lord of
the Manor, to celebrate Divine Service in the Chapel of. A, and his
Heirs, there the Aſſignee ſhall not have an Action of Covenant, for
the Covenant cannot be annexed to the Manor, becauſe the Cove-
pantce was not ſeized of the Manor. Inft. 385. 2. And if a Lord of
4
a Ma-
Chap. XXXII. The Complete Incumbent.
333
the case.
a Manor hath a Chapel within any Pariſh, that is private for himſelf <h1418.
and his Servants within the ſaid Manor, in which, Time whercof ile
Memory of Man is not the contrary; the Parſon or Vicar of the Pa-
riſh in which fuch Chapel or Manor is, have uſed to fay Divine Sera
vice, and to adminiſter the Sacraments, &c. cither by himfelf, or
fome Chaplain provided by him ; if the ſaid Parfon or Vicar, nei-
ther by himſelf, nor other Perſon, doth celebrate Divine Service; and
adminiſter the Sacraments, c. according to the Preſcription; an Action Adion upon
upon the Caſe by reaſon of the Preſcription, ſhall be maiutainable by
the Lord of the Manor, and he himſelf only, and none of his Ser-
vants ſhall have the A&ion : For although that the Divine Service
be Spiritual, yet forafmuch as the ſame by Prefcription doth belong
to a private Perſon, and is to be celebrated for his Eaſe within his
Manor, which fhall be intended to begin at firſt by Covenant, the
A&tion for not performing of the Service doth well lie; and Damages
ſhall be recovered for the Neglect, and therewith agreeth 22 H. 6.
463
in the Prior of Woodburn's Cafe. Co. 5. William's Cafe 73. Roll's
Abr. 1. 110. But when the Chapel is not private to the Lord, and Áliter if not
his Family, but publick and common to all his. Tenants of the ſame private to
Manor, which may be many, and of great Number, there no Action Family.
upon the Cafe lieth by the Lord, for then every one of liis 'Tenants
may have his Axion upon the Cafe as well as the Lord himſelf, and
fo infinite Actions might be brought for one Default, and the Offender
puniſhed without End, which the Law will not allow, as being un
reaſonable. And yet they ſhall not be without Remedy in fuch Cafe,
for they may fue in the Spiritual Court for the Default, and there
the ſame fhall be redreſſed. Littleton lib. 2. cap..... Frankálmoigri
Se&t. 136. Mich. 34 and 35. Eliz. B. R. William's Cafe. 5 Coke 73.
Vide 27 H. 8. 27. a. 5 Ed. 4. 2. 2 Ed. 4. 9. d. Roll's Abr. 1. p. 110.
1 Inft. 96. a. An Action of the Caſe was brought, wherein the Plain- If Axion Fies
tiff declared, that the Sacrament of the Lord's Supper was to be ad- for refuſing
miniſtred to the Pariſhioners upon ſuch a Sunday, and that the De-
fendant Parſon, &c. refuſed to admit the Plaintiff to the ſaid Sacrament.
ment; and a Verdict was found for the Plaintiff
, but it was moved in
Arreſt of Judgment, that the Action in this Cafe would not lie, be-
cauſe it was a meer Eccleſiaſtical Offence, and puniſhable by Cenſures
of the Church, and is not proper for a Jury to judge what Damage
the Plaintiff hath ſuſtained by being refuſed this Spiritual Food: And
if the Plaintiff may maintain this Action, then every other of the Pas
riſhioners may bring the like Action, and the Law allows not Multi-
plicity of Actions, but the Judgment was arreſted upon an Exception
to the Form of the Declaration, and the Court gave no Opinion whe-
ther the Action would lie or not. Pafch. 13 Car: 2. Clovell verf. Cara
dinal. 1 Siderfin 34.
And tho' the Liturgy, or Book of Common Prayer, and of cele- Tenure not
brating Divine Service be altered, yet this Alteration notwithſtanding, altered by
where any Tenements be held in Frankalmoign, the Tenure in Fran- Common
kalmoign remaineth, and fuch Prayers, and Divine Service ſhall be Prayer.
ſaid and celebrated as now is authorized; yea, and though the Te-
nure be in particular, as to ſing a Maſs; or a Placebo; or Dirige, yet
ſaying the Prayers now authorized fufficeth, for the changing of Spiri-
tual Services into other Spiritual Services altercth neither the Name,
nor the Effect of the Tenure; and albeit the Tenure in Frankalmoign
is now reduced to a Certainty contained in the Book of Common
Prayers
1
Admillion to
the Sacra
ز
334 The Clergy-Man's Law: Or, Chap. XXXII
ins
Where Di.
vine Service
Tenure.
Chapels. Prayer ; yet ſeeing the Original Tenure was in Frankalmoign, and the
Change is by gencral Confent, by Authority of Parliament, where-
unto every Man is Party, the Tenure remains as it was before. i In.
95.b. From which it ſeems to appear, that the Ecclefiaftical Judge
may correct, if Divine Service be neglected in any Church or Chapel,
although no Authority be given by any Statute to enable him there-
unto ; and I conceive, that the Altering the ancient Form of Divine
Service, or rather the Confirmation of the Alteration of it, by Act of
Parliament, doth not take from the Ordinary his Curam animarum,
and therefore not his ancient Authority he had by the Common Law,
and Common Right, to ſee that Divine Offices be performed by thoſe
under his Charge, and to puniſh Offenders in that refpect by the Cen-
ſures of the Church.
But if any hold Land by a certain Divine Service to be done, as to
is put in cers ſing a Mafs every Friday in the Week, or every Year ſuch a Day to fing
tain by the a Placebo or Dirige, &c. or to find a Chaplain to ſing a Maſs
, Gc.
or to diſtribute in Alms an Hundred Pence to an Hundred poor Pco-
ple on ſuch a Day ; in this Caſe, if ſuch Divine Service be not done,
the Lord may diſtrain, becauſe the Divine Service is put in certain by
the Tenure ; and if the Lord doth diſtrain for not doing Divine Ser-
Damages to vice which is certain, he ſhall upon his Avowry recover Damages at
berecovered. the Common Law, that is, in the King's Temporal Court for the not
doing of it ; and if Iſſue be taken upon the Performance of the Divine
Service, it ſhall be tryed by a Jury of Twelve Men; becauſe albeit
the Service be Spiritual, yet the Damages and Lofs are Temporal, and
fo is the Seigniory alſo, and in this Cafe the Lord ſhall have Fealty,
&c. and ſuch Tenure ſhall not be ſaid to be Tenure in Frankalmoign,
but is called Tenure by Divine Service; for none can hold in Frank-
almoign, if there be expreſſed any particular Manner of Service that
he ought to do. 1. Inft.. 96. b. 97.b. But if a Grant be made by Fine
to find a Chaplain in a certain Chapel of the Conuſee to ſay Di-
vine Service there, and when the ſaid Chapel is become ruinous and
decayed, a Scire Facias is brought upon the Fine; if the Conufor doth
plead that the Chapel is ruinated, and decayed, ſo that no Prieſt can
fay Divine Service therein, although that the Covenant by ſuch Plea
is confeſſed, and it be prayed on the behalf of the Plaintiff, that there-
fore Judgment may be given, but that Execution ſhould ceaſe until
the Chapel be rebuilt, yet no Judgment ſhall be given, for that this
is a good Bar for the 'Time; for during the Time that there is no Cha-
pel, Divine Service ſhall ceaſe, in that it ought to be done in a decent
and reverent Manner, and not at large ; but if the Chapel be rebuilt
in the place where the old Chapel ſtood, Divine Service ought to be
ſaid there again, and a Chaplain ought to be found for that Purpoſe as
formerly. But it was ſaid, that if the Chapel be built in another
Place than where the old Chapel ſtood, the Grantor is not tied to ſay
Divine Service in it. 10 H. 7. 13. 16 H. 7.9, 10. Trin. 30 Eliz. B.R.
Wade and Preſthall's Cafe. i Leonard 331. Paſch. 43 Eliz. Cottel v.
Lutterell's Caſe. B. R. 4 Coke 86. And this I ſuppoſe holds as to a Pa-
Chapel of riſh-Church, &c. when the Caſe is the fame.
And Note, That where there is a Chapel of Eaſe in a Pariſh, the
Incumbent of the Mother-Church being bound to find a Chaplain there,
he himſelf may ſerve in the Chapel as well as his Curate or Chaplain.
The Caſe of the Parſon of Aſhton and Caſtle Burnidge Chapel. Ho--
Ealc.
bart 66,67
С НАР.
4
Chap. XXXIII. The Complete Incumbent.
335
to
Preaching.
CHA P. XXXIII
Miniſters Duty in Preaching.
A is
without Li-
cence.
Nother Duty incumbent upon 'every Miniſter that hath Cure of Miniſters
Souls is; To declare, by Preaching, the Will of God to his Peo- preaching
ple. And note, every Perſon, when he is ordained Prieſt; doth thereby
receive Authority to preach the Word of God; and when he is inſti- See the Run
tuted, the Biſhop doth commit to him the Cure of Souls; Shephard, brick.
in his Sure Guide for Juſtices of the Peace, faith, that the Clauſė
in the Statute 14 Car. 2, concerning Lecturers, ſeems to extend to all
Miniſters that preach any where without Licence. The Words of
which are ;, and be it further enacted by the authožity aforeſaid, Chat Siai. 14 Car.
no Perſon mhall be, od be received as a Ledurer, 02 permitted, luffered 2.
02 allowed to preach as a Lecturer; 02 to preach or read any Sermon
02 Ledure in any Church, &c. unleſs he be firſt approved, and there-
unto licenſed, &c. And altho' (as I conceive) this Cauſe was only de-
ſigned for ſuch who are to preach in the Quality of Lecturers; yet it
may
be extended to all Miniſters preaching in any Church, Chapel, or
other Place of publick Worſhip, of which the Preacher hath not the
Cure, though he be not a ſettled and conſtant Lecturer. And even
before this Statute was made, it was lawful for Church-wardens to re-
ſtrain any Stranger not licenſed, from preaching in their Church or Cha-
pel, which ſeems to be allowed in Crcfwick and Rokesby's Cafe. Hill
.
1o Jac. B. R. 2 Bulſtroſte 49, where the Church-wardens were com-
mitted to Gaol by the Juſtices of the Peace upon the Statute of i Mar:
and the Commitment in that Cafe allowed to be good, although the
Miniſter (who in Truth was licenſed) did not ſhew his Licence (as it
ſeems) to the Church-wardens. And if one be Curate in a free Cha-
Curateought
pel, or Donative, yet he ought not to preach without Licence, but the
Biſhop may cite him to take a Licence to preach. Allain v. Exton. preach.
Hill. 23 and 24 Car. 2. 2 Keb, 876. ! Mod. Rep. 90. Vide ibid. II,
I 2, 22,
But whether a Miniſter doth preach with or without Licence, he is According to
not to preach what Do&rine he pleaſes, and therefore it hath becn en- the Do&rine
acted, That if any Perſon Écclegiaftical, of which call have Eco of the Thirty-
ninc Articles.
clefiaftical Living, ſhall adviſedly maintain ou affirm any Do&rine of:
realy contrary or repugnant to any of the Thirty Nine Articles, and
being convented befože the Bifhop of the Dioceſe, aj the Didinary, og
before the Queen's Highneſs CommiMoners in Caules Ecclefiaftical,
fhall perlift thereili, 02 Hot Bedoke bis Erray, oz after ſuch Revocation
eftions afirm ſuch untrue Doctrine, ſuch maintaining o2 affirming,
and poräfting, of ſuch eftloon affirming, ſhall be juſt Cauſe to deprive
luch Perſon of his Ecclefiaftical Promotion, and it ſhall be lawful to
the Biſhop of the Diocele, 02 the Dedináry, 02 the ſaid commiflioners,
to deprive Cuch Perſon lo perdifting, or lawfully convided of ſuch eft-
ſoons atfirming, and upon Cuch Sentence of Deprivation pronounced,
be fall be indeed deprived. Stat. 13 Eliz. c. 12.
to take Li-
cence to
13
EI.
C. 12.
Neither
336 The Clergy-Man's Law: Or, Chap. XXXIII .
!
for
any
Coinnion-
C.
Or the Sa-
cramcnt.
Stat. 1 Ed. 6.
1 El. c. 1.
Mainte-
nance of
reaching. Neither may any Miniſter preach, declarc, or ſpcak any Thing in
Penalty
Derogation or Depraving of the Book of Common-Prayer, or of
depraving Thing therein contained, or of any Part thereof; and if he offend in
the Book of this particular, he is to forfeit for the first Offence one whole Year's
Prayer.
Profit of all his Spiritual Benefices or Promotions ariſing after his Con-
Stat
. 1 Eliz. viction, and ſuffer ſix Months Impriſonment; for the ſecond Offenco
twelve Months Impriſonment, and Deprivation ipfo fatto of all his
Spiritual Promotions; and for the third Offence the like Deprivation,
and Impriſonment during Life : And if he hath no Spiritual Promoti-
on, he ſhall not for the firſt Offence be impriſoned fix Months, and for
the ſecond during Life. Stat. 1 Eliz. C. 2.
Neither may he in his Preaching, or at other Time, deprave, dc-
ſpiſe, or contemn the moſt Bleſſed Sacrament of the Lord's Supper by
any contemptuous Words, or by any Words of depraving, deſpiling, or
reviling, or adviſedly in any otherwiſe contemn, deſpiſe, or revile the
faid Sacrament, upon the Penalty of ſuffering Impriſonment, and of
making Fine and Ranſom at the King's Will. Stat. i Ed. 6.6. 1. A
Miniſter may be alſo bound to his good Behaviour for uſing fcandalous
and reflecting Words in his Prcaching. Trin. 16 Car. 2. Juſtice Tyrel
v. Hatch. i Keble 751.
And it is enacted, by i Eliz. C. I. Se&t. 27, C. Chat fod the utter
Againſt Ertinguilhment of all foreign and uſurped Power and Authority, may
it pleaſe your Highneſs, that it may be enacted by the authozity afore
foreign U. laid, That if any perſon of Perſons dwelling oz inhabiting witħin this
ſurpation. your Realm, od in any other your yighneſs's Realms 02 Dominions,
of what Etate, Dignity 02 Degree Coever he od they be, after the
End of Thirty Days nert after the Determination of this Settions
of this preſent Parliament, mall by Writing, Printing, Teach:
ing, Preaching, erpreſs Wozds, Deed Of Act, adviſedly, malicioufly
and direaly affirm, hold, land with, ſet fojth, maintain of defend the
Authority, Pheheminence, power 02 Jurisdiâion, Spiritual ou Ecclefia-
ftical, of any foreign Prince, Prelate, Perloni, State 02 Potentate
whatſoever beretofore, claimed, uled od ulurped within this Realm, od
any Dominion 02 Country being within ou under the power, Domini
011 02 Dbeylance of your Pighneſs; O fhall adviſedly, maliciouap and
directly put in ure, oz erecute any Thing fo2 the Extolling, govance:
ment, ſetting forth, Paintenance of Defence of any ſuch pretended 02
ulurped Jurisdiction, Power, Preheminence and authority, oz any part
thereof; that then every ſuch perſon and Perſons Co doing and offend-
ing, their abettoys, Aiders, Procurers, and Counſellozs, being thereo
lawfully conviđed and attainted, according to the true Dider and
Courſe of the Common Laws of this Realm, for his of their firt DE-
fence, ſhall fogkeit and loſe unto your Highneſs, your heirs and Sucs
cellois, all his and their Gods and Chattels, as well real as per.
Conal.
Impriſon-
and if any perſon ſo convided of attainted ſhall not have, or be (voith
of his proper Buds and Chattels, to the Aalue of Twenty Pounds
at the Time of bis Convi&ion oz attainder, that then every ſuch pecs
Con lo convicted and attainted, over and beldes the forfeiture of all
his ſaid goods and Chattels, ſhall have and ſuffer Jmpriſonment by
the Space of one whole Year, without Bail 02 againprize.
and that alſo all and every the Benefices, Prebends, and other EC:
thereupon
clefiaftical Promotions and Dignities whatſoever, of every Spiritual
Percon lo offending, and being attainted, mall immediately after flicbt.
3
tain:
ment for a
Year.
Bencfices
to be void.
i
Chap. XXXIII. The Complete incumbent.
337
5.
fon.
within the
aindout be litterly void to all Intents and purpoſes, as though the Piraching.
Incumbent thercof were dead, and that the Patron and Donour of e.
very ſuch Benefice, Preberid, Spiritual Promotion and Dignity, fail
and may lawfully pzéſent unto the ſame, 0? give the ſame in ſuch an:
nier and form, as if the ſaid Jncumbent were dead; and if any ſuch
Offendo2 o2 Difelidojs, after ſuch Convifion of attainder, do eftioons
comunit or do the ſaid Offences, 02 any of themi, in manner and fount
afojelaid, and be thereof duly conviñed and attainted as is aforeſaid,
that then every ſuch Difeiido, and Dffendois Mall for the ſame recond
Dffence incur into the Dangers, penalties and fozfeitures ozdained
and provided by the Statute of Proviſion and Præmunire, made in the 16 R. 2. c.
Birteenth Year of the Reign of King Richard the Second.
and if any ſuch Offendol 02 Offendois, at any Time after the re-
cond Conviction and Attaindour, do the third Time commit and do the High Trca-
ſaid Dffences, 02 any of them, in manner and fozni aforeſaid, and be
thereof duly convicted aiid attainted as is afozefaid, that then every ſuch
Dffence ož Dffences ſhall be deemed and adjudged High Treafoli;
alid
that the Difenidol of Dffeirdos therein being thereof lawfully convided
and attainted, accolding to the Laws of this Realm, fhall luffer Pains
of Death, and other Penalties, Folfeitures and Lofles, as in caſe of
High Treaſon by the Laws of this Realm.
and be it enacted, That no manner of Perſon of Perſons thall be Proſecution
molefted o2 inipeached for any of the Difences ſo committed of perpgs Year.
trated only by Preaching, Teaching, or Todds, unleſs he oz they be
thereof lawfully indiated within the space of one whole Year nert after
his op their Difences ſo committed: and in caſe any perſon of Perſons
fhall foztune to be impriſoned foz any of the faid Difences committed by
Preaching, Teaching, 02 Words only, and be not thereof fildicted
within the Space of one half year nert after his c2 their ſuch Offence
ſo committed and done, that then the ſaid perſon ſo impriſoned fhail
be ſet at Liberty, and be no longer detained in Priſon for any ſuch
Cauſe of Dffence. Vide Stat. i Eliz. 1. Sect. 27. &c.
And it was afterwards cnacted, by 5 Eliz. c. 1. Sect. 2. &c. That 5 El. c. 1.
If any perſon and Perſons dwelling, inhabiting, of refiant within this Againit
Realm, or within any other the Dueen's Dominions, Seigniores, 02 the Author
Countries, of in the Marches of the ſame, o elſewhere, within oj un- ty of the
der her Dbeiſance and Power, of what Eſtate, Dignity, Vieheminence, Lithop or
Dider, Degree 02 Condition ſoever be or they bê, after the firft Day Reme.
of April, which thall be in the year of our Loid God 1563. fhall by
Writing, Ciphering, Dunting, Preaching of Teaching, Deed od Act,
adviſedly and wittingly hold on (and with, oz ertol, ſet forth, maintain
ol defend the Authority, Jurisdition oj Power of the Biſhop of Rome,
02 of his See, heretofoje claimed, uſed ol uſurped within this Realm,
or in any Dominion od Country, being of, within, oq under the Dueen's
Power ol Dbeilance, od by any Speech, open Deed od Act, adviſedly
and wittingly attribute any ſuch Danner of Jurisdiâion, authožity,
02 Preheminence to the ſaid See of Rome, oj to any Biſhop of the
ſanie Dee for the Time being, within this Realm, od in any of the
Ducen's Dominions of Countries, that then every ſuch perſon od
Perſons ſo doing og offending, their abettors, Procurors, and Coun:
Cellozs, and alſo their aiders, amigt ants and Comforters, upoli Pur.
pole, and to the Intent to let fo2th, further, and ertoi the laid uſurped
Power, Authozíty oJurisdiâion of any of the ſaid Biſhop 0: Bilhops
of Rome, and every of them, veing thereof lawfully indixed od preſent-
Iii
ed
1
!
338
The Clergy-Man's Law: Or, Chap. XXXIII,
lower ard
ticcs cherc-
:
,
to any 02 a:
preaching. ed within one year nert after Cuch Diferices by lini o’ them commit:
téd, and being lawfully convided 02 attainted at any Tiine after, ac
cording to the Laws of this Bealmı, foz every ſuch Default and Dfence,
thall incur into the Dangers, penalties, Pains, and forfeitures, 02.
dained and provided by the Statute of Provilion and Præmunire, made
in the Sixteenth Year of the Reign of King Richard the Sec
cond.
Sect. 3. And it is alſo enacted by the authority aforeſaid, Tbat as
hauty of Ju- well Juſtices of alüze ill their Circuits, as Juſtices of Peace within
the Limits of their Tommiftion and Authodities, op two of every ſuch
Fuffices of Peace at the leaſt, whereof one to be of the Quorum, fall
have full power and authodity by Uertue of this ad, in their Duar:
ter and Dpen Sellions, to enquire of all Dffences, Contempts, and
Tranſgreſions, perpetrated, coinmittéd, op done contrary to the true
Meaning of the Premiſes, in like manner and form as they may be
other Difences againſt the Dueen's Peace, and Mall certify every pies
ſentment afoże theni 02 any of them had op made concerning the
ſame, oz any Part thereof, befože the Queen, ber heirs and succes
Cożs, in her oz their Court, commonly called the king's Bench, with
in 40 Days nert after luch Pielentment had of made, if the Term be
then open ; and if not, at the firft Day of the full Term nert follows
ing
the ſaid 40 Days ; upon Pail that every of the Juſtices of a lize,
od Juftices of the peace, before whom ſuch Preſentment ſhall be made,
making Default of luch Certificate contrary to this Statute, to loſe
and fogkeit foz every ſuch Default Duie þundjed Pounds to the Dueen's
Highneſs, her Heirs and Succettożs.
Juftices of Seĉt. 4. And it is enacted by the Authority aforeſaid, That the Juffie
3. R. how to ces of the king's-Bench, as well upon every ſuch Certificate as by
Enquiry befoje themſelves, within the Limits of their authorities,
fhall have full power and authority to hear, older, and determine e
very ſuch Dffence done or committed contrary to the true meaning of
this preſent act, accoding to the Laus of this Realm, in ſuch like
manner and form to all Intents and purpoſes, as if the Perian 02
tute, had been preſented upon any matter of Dffence erpreſſed in the
ſaid Eſtatute made in the ſaid Sirteenth Year of King Richard the
Second.
Sect. 10. And foz ſtronger Defence and Maintenance of this ax, it
maintaining is further oldained, enated, and eſtabliſhed as afozefaid, That if any
Biſhop of
ſuch Dffendo? Od Dffendols, as is afožefaid, of the firt part of
Branch of this Etatute, that is to ſay, by Writing, Ciphering,
Printing, Puaching od Teaching, Deed of Ai, aduiſediy and wit-
tingly bold 02 tand with, to ertol, ſet fožth, maintain 02 defend
the Authority, Jurisdiâion of Power of the Bifhop of Rome, oz of his
See, heretifoze claimed, uſed, oj uſurped within this Realnı, op ini a:
11y Dominion od Country, being of, within, 02 under the Queen's
Power 02 Dbeiſance : De by any Speech, Deed, 02 act, adviſedly and
Pucheminence of the ſaid See of Rome, op to any Bilbop of the ſame
See for the Time being within this Realm, or in any the Queen's
Dominions 02 , oz
betting, procuring og counſelling, oq aiding, aftilling op coniforting,
upon purpoſe, and to the Intent to ſet foëth, further, and ertoll the
faid ufurped Power, authoity, 01 Jurisdiction, after luch Conviai.
.
Second of
fonce in
Rome.
on
Chap. XXXIII. The Complete Incumbent.
339
fon.
on and attainder, as is aforeſaid, do eftloons commit od do the ſaid preaching.
Difences, or any of them, in manner and form aforeſaid, and be
thereof duly convicted and attainted, as is aforeſaid.
That then every ſuch Difendo2 02 Difendous, fol the ſame ſecond High Trea-
Dience and Offences, thall foſteit, loſe, and ſuffer ſuch like and the
ſame pains, Fožfeitures, Judgment and Erecution, as is uſed in
Cales of bigb Treaſon. But no Corruption of Blood, forfeiture of
Dower, &c. Vid. 5 El. c. 1. Sect. 10, 11, 12.
Alſo it is enacted by 5 Eliz. c. 5. Sect. 40. That whoſoever fall by That eating
Preaching, Teaching, Writing, op open Speech, notify that any eats is not of
ing of filh, oz fožbearance of fleſh, mentioned in the Statute, is of any Neceſity.
Tecelity for the Saving of the Soul of Pan, 02 that it is the Set-
vice of 50d, otherwiſe than other publick Laws are and be ; that then
ſuch Perſons thall be puniſhed as Spreaders of falle News are and
ought to be.
Note, The Canons of the Church which regulate the Exerciſe of Canons
Preaching, are thoſe whoſe Titles be here recited, and which may at late Preach-
large be eaſily conſulted.
ing.
:
CAN. XLIII. Deans and Prebendaries to preach during their Re-
ſidence.
CA N. XLV. Beneficed. Preachers being reſident upon their Livings
to preach every Sunday.
CAN. XLVI. Beneficed Men not Preachers to procure Monthly
Sermons.
CA N. XLVII. Abſence of beneficed Men to be ſupplied by Curates
that are allowed Preachers.
CAN. XLIX. Miniſters, not allowed Preachers, may not expound.
CAN. L. Strangers not admitted to preach without hewing their
Licence.
CA N. LI. Strangers not admitted to preach in Cathedral Churches
without ſufficient Authority.
CAN. LII. The Names of Strange Preachers to be noted in a
Book.
CAN. LIII. No publick Oppoſition between Preachers.
CAN. LIV. The Licences of Preachers refuſing Conformity to be
void.
CAN. LV. The Forın of a Prayer to be uſed by all Preachers before
their Sermons.
CAN. IVI. Preachers and Letturers to read Divine Service,
and adminiſter the Sacraments twice a year at the leaſt.
CAN. LXXI. Miniſters not to preach or adminiſter the Communion
in private Houſes.
Iii 2
CHAP
340
The Clergy-Man's Law: Or, Chap. XXXIV.
Diturbance
in Churches.
CH A P. XXXIV.
Difturbances in the Church in the Time
of Divine Service, or Striking, Brawl
ing, &c. in the Church or Church-yard,
how puniſhed
Puniſhment
for Diſtur-
bances in the
Church,
Star. 50 E.
3. c. 5.
1 R. 2. C. 15.
the Chur-
ches. Soc.
S an Incumbent of a Church is obliged to perform the Offices of
A.
a Miniſter to the People belonging thereunto, fo the Law doth
fecure him from all Diſturbance in the Performance thereof; to which
Purpoſe it is enacted by 50 E. 3. c. 5. as followeth,
Becauſe that Complaint is made to our Loid the king by the Cler,
gy of his Realm of England, that as well diverſe Preits bearing the
(weet Body of our Lojd Jeſus Chriſt to lick people, and their Cleiks
with them, as otherwiſe divers Perſons of Holy Church, whiled they
attend to Divine Services in Churches, Church-yards, and other
Places dedicated to God, be Cundy Times taken and arreſted by Au-
thority Royal, and Commandment of other Tempojal Loids, in Df:
fence of God, and of the Liverties of Holy Church, and alſo in Di.
ffurbance of Divine Services afożeſaid : The ſame our Lold the King
who would be foce diſpleaſed, if any did in ſuch Manner, will and
granteth, and defendeth upon grievous Fozfeiture, that none do the
Came from hencefouth; ſo that Collulon oz feigned Cauſe be not found
in any of the ſaid perſons of Holy Church in this Behalf.
And it was afterward enacted by Stat. i R. 2. C. 15. Becauſe that
Arreſting in Prelates do complain themſelves, that as well beneficed People of
Holy Church, as other, be arreſted and drawn out, as well of Cathe-
dzal Churches, as of other Churches and their Church yards, and comes
times when they be intended to Divine Services, and alſo in other
Places, although they be bearing the body of our Lold Jeſus Chrilt
to lick perſons, and ſo arreſted and drawn out, be bound and brought
to Pulon againit the Liberty of poly Church; it is ozdained, That if
any Miniſter of the king oz other do arreſt any Perſon of Holy Church
by ſuch manner, and thereof be duly convict, he thall have Impriſons
ment, and then be ranconied at the king's Will, and make gree to the
Parties lo arreſted.
Provided always, That the Caid People of holy Church thall not
diſallowed. hold them within the Churches or Sanquaries by Fraud of Colladoli
in any qanner, and therefore we command that thou cauſe all the latu
Statutes to be cried and publiſhed, and firmly kept through thy Bayly-
wick accoding to the form and Tenour thereof, and that do not omit
in any Wife. Given under the Witneſs of our Great Seal the firſt
Day of February, in the firſt year of our Reign.
Prieſt ought
And Coke faith, That he ſaw a Report in the Time of Queen Mla-
not to be at- quy upon the aforeſaid Statutes, where it was held, that they are but
an Affirmance of the common Law, and in Maintenance of the Liber-
ties of Holy Church, as appears by the Preamble of the fame Statutes,
and that Eundo, redeundo, morando for to celebrate Divine Service,
the Prieſt ought not to be arreſted, nor any who aid in it, and that the
Party
San&tuaries
reſted eundo
reitenrido ego
murando.
I
Chap. XXXIV. The Complete Incumbent.
341
c.
not excuſed,
ſconded.
Excommu-
Party grieved may have his Action upon the Statute 5o Ed. 3. c. 5. By Arreſts
,
For when any Thing is prohibited by an Act of Parliament, the do-
ing whereof would be prejudicial, and a Damage to any particular
Perſon, there an Action doth lie upon fuch Statute by the Party dam-
nified, although no Action be given by expreſs Words of ſuch Statute.
10 Co. 75. 12 Co. 100, 103. 2 Mod. Rep. 152, 162, 165.
And if an Arreſt be made contrary to the ſaid Statutes, and the Contempt
Perfon arreſting doth preſently diſcharge the Perſon arreſted, upon
Pretence of Ignorance, &c. this will not excuſe the Contempt in ma-
king the Arreſt
. Hill. 16 Car. B. R. Prinfor's Cafe, i Croke 602.
And it is to be noted, That the aforeſaid Statutes extend both to Prieſts, Arreſt good,
of
and Lay-men. Paſch. 7 7ac. C. B. Brownlow and Gouldsborough 2 f. Persons Ha-
301. Paſch. 1o Fac. B. Ř. Pit v. Webley, 2 Bulſtrode 72. Hill. 16 ving ab-
Car. B. R. Prinſor's Caſe, 1 Croke 602, and it ſeems on Week-days
as well as on Sundays, and Holy-days. Paſch. 11 Jac. Pit v. Webley,
2 Croke 321.. However, if ſuch undue Arreſt be made, the Arreſt is
good, fo that if a Refcous be made, and thereby any perſon killed,
the Killing is Murder. Paſch. 10 7ac. B.R.Pit v.Webley, 2 Bulſtrode,
72. And Note, that one Dr. B. being arreſted and taken in Execution
upon a Sunday in the Church-yard or Porch, in coming from Divine
Service, and it appearing to the Court that the ſaid B. had aſconded
fome Time before, the Court would not diſearge him from Execution,
nor puniſh the Bailiffs; but had he not fo aſconded, they then would
have puniſhed the Contempt in the Bailiffs. Trin. 23 Cár. 2. Dr. But-
ler's Cafe, 2 Keble 777.
He that doth offend againſt the aforeſaid Statutes, may not only nication.
be fined in the Temporal Court, but may be excommunicated by
the Eccleſiaſtical Judge for fo doing, and condemned in Coſts.
Paſch. 13 Jac. B. R. Pit v. Webly, 2 Bulſtrode 72 ſame Caſe; 3
.
The Statutes do only prohibit Arreſts betwixt Party and Party at No Prohibi-
ſuch 'Times, but not Arreſts made when the King is a Party, and tion if the
therefore a Perſon may be apprehended gning or returning from Divine Biney be
Party.
Service, by a Warrant from a Juſtice of the Peace, it being for Breach
of the Peace and for the King; and ſo in the like Cafes. Hill. 16 Car.
B. R. Prinfor's Cafe, 1 Croke 602. Paſch. 11 Jac. Pit v. Webley;
2 Croke 321, and the fame Cafe, 2 Bilft
. 72. Mich. 16 Jac. B. Ř.
Wait v. the Inhabitants of Stokes. Godbolt. Vid. infrato
Alſo it hath been enacted, That no Perſon o! Perſons upon the 29 Car. 2.Co
Lold's Day, thall ſerve o, erecute, or cauſe to be ſerved or executed, 7. Sect. 6.
any Writ, Proceſs, Tuarrant, Dider, Judgment o: Decree, (ers
cept in Cafes of Treaſon, Felony od Bleach of the Peace) but that the
Service of every ſuch Witit, Proceſs, (Tarrant, Dider, Judgment
Ol Decree, thall be void to all intents and purpoſes whatſoever. and
the Perſon og Perſons (o ſerving og érecuting the fame, thall be as lís
able to the suit of the Party grieved, and to anſwer Dimages to
him foz doing thereof, as if he oz they had done the came without any
Writ, Proceſs, Wiarrant, Dider, Judgment of Decree at all.
Stat. 29 Car. 2. Intituled, An Act for the better Obſervation of the
It appears by Prinfor's Cafe before cited, That one might have
been attached, for arreſting upon a Sunday before the faid Statute
29 Car. 2. And Prinſor was fined twenty Shillings for ſo doing, but
that
Croke 321
Lord's Day.
I Cro. 602,
342
The Clergy-Man's Law: Or, Chap. XXXIV.
Mod. 56.
5 Mod. 449
Diturbancro that the Cafe had this further Circumſtance, viz. he might have been
arreſted on any other Day. And upon a like Motion in B. R. 21 and
22 Car. 2. Keeling ſaid, He had known many Attachments for arreſt-
ing a Man upon a Sunday, but the Affidavit always contained that
he might have been taken on any other Day. To which I wiſden
added, That ſo alſo it was for arreſting one as he was going to Church
to diſgrace him.
But notwithſtanding the ſaid Statute, it has been held, That Cita-
tions or Summons, Warrants for the Peace and good Behaviour, as
alſo E{cape-Warrants, &c. may be executed on a Sunday, viz.
In Michaelmas-Term in W. 3. the Cafe was, A Libel having been
exhibited in the Spiritual Court of Durham againſt a Woman for
Incontinence, the Citation was fixed upon the Church-Door on a Sun-
day (as is uſual ;) and this being objected, it was reply'd, That all
Civillians were of Opinion, that ſuch Citation was ſufficient without
any perſonal ſerving, and that that had been the conſtant Practice both
before and ſince the ſaid Statute. And Holt Ch. Juft. faid, if the Eccleſi-
aſtical Law was and had always been to ſerve this Proceſs on a Sun-
day, (in which Reſpect it differed from a Temporal Proceſs, which
may be as well ſerved on any other Day) then it ſeem'd the Intent of
the Statute was not to take away the Serving it in that Manner.
Ray. 250.
And Warrants of the Peace, good Behaviour, &c. have been always
held to be excepted by the Words of the Act, as in the Caſe of John-
ſon and Colt ſon. Trin. 30 Car. 2. in C. B. A Juſtice of Peace made a
Warrant to a Conſtable to take a Perfon, in order to find Sureties for
his good Behaviour; the Conſtable executed the Warrant on a Sunday,
and the Court in 'Treſpaſs and Battery brought for this, juſtified the
Conſtable, and reſolved that a Warrant for the good Behaviour is a
Warrant for the Peace and more; and that the Exception in the faid
Statute is to be favourably interpreted to preſerve the publick Peace, c.
And it has been oftentimes lately reſolved, That upon an Eſcape-
Warrant a Perſon may well be arreſted on a Sunday.
See farther of Holy-Days, &c. Antea, Chap. 32.
Disturbing The Law hath not only provided for the puniſhing of Perfons, that
arreſt
preaching,
any Prieſt in the Caſes aforeſaid, but alſo from being diſturbed
by any other Means in their performing of Divine Offices, and accord-
ingly it hath been enacted as followeth :
i Mari& c.3
Focafmuch as it is moſt necellary in every Chriſtian Common
wealth, to provide that Tranquility and Peace may be preſerved and
continued amongſt the People, and ſpecially in Holy Church in the
Time of Divine Service, and adminiftration of the Sacraments
and Sacramentais, as befoje this Time it hath been accutomed in
Holy Church within this Realm, and that all Things being contrary
thereunto, od that are, od may be in Diffurbance thereof, may by foze-
fight, ve eſchewed and avoided, and Remedy therefore in due Time
provided, as well for the Pleſervation of the Queen's Vighneſs
Peace, as for an univerſal Duietneſs and Dıder to be uſed within
this Realm.
Be it therefore enađed by the Queen our Sovereign Lady, the
Lods Spiritual and Tempojal, and Commons in this preſent Par:
liament adembled, and by the Authority of the ſame, That if any
Perſon od Perſons of their own power and authority, at any Time
od Times after the Twentieth Day of December nert coming, do, 0?
thall
Vide Supra.
Miniſters in
doc.
1
3
Chap. XXXIV. The Complete Incumbeut.
343
fball willingly and of purpoſe, by open and overt Wold, fax, it, Ditturban!r.
02 Deed, malicioutiy oz cuntenuptiloufy moleſt, let, difturs, ver o?
trouble, op by any other unlawful (Ways 02 Beans diſquiet oz miſure
any Preacher ou Preachers that now is, oi that at any Time of
Times hereafter fall ve licenſed, allowed od authorized to preaci, by
the Queen's Highneſs, oj by any Archbiſhop o? Biljop of this Realni,
o2 by any other lawful Dădinary, oz by any of the Univerſities of Ox-
ford and Cambridge, oj otherwiſe lawfully authoriſed oy charged by rea-
ſon of his or their Cure, Benefice, oj other Spiritual Promotion
0? Charge, in any of his or their open Serinon, Preaching ou Col-
lation that he 02 they ſhall make, declare, preach or pronounce iti ary
Church, Chapel, Cburch-yard, ad in any other place ou Places,
uſed, frequented oy appointed, oj that hereafter Mall be uſed ou ap
pointed to be preached in.
Dı if any Perſon od Perſons, after the ſaid Twentieth Day of In faying
December nert coming, fhall malicioufiy, willingly, or of purpoſe Maſs, Sci.
inoleſt, let, diffurb, ver, diſquiet, od otherwiſe trouble any Parſon,
Uicar, Darith-Puelt 02 Curate, or any lawful Pieff, preparing, ſay:
ing, doing, linging, miniftring, 02 celebrating the Dals, or other
ſuch Divine Service; Sacraments 02 Sacramentais, as was mot
commonly frequented and uſed in the laſt Fear of the Reign of the
late Sovereign Loyd King Henry the Eighth, ou that at any Time
hereafter fhall be allowed, ſet fouth og authoriſed by the Dueen's apa-
jeſty.
Esc.
Dif any perſon or perſons, at any Time ou Times after the Breaking
down Altars,
ſaid Twentieth Day of December, mall contemptuouſly, unlawfully 02
maliciouſly, of their own Power op Authority, pull down, deface,
ſpoil, abuſe, bieak, 02 otherwiſe urreverently handle od ojder the
moſt bleſſed, comfortable and holy Sacrament of the body and Blood
of our Saviour Jeſus Chritt, commonly called the Sacrament of
the altar, being, o2 thát phall be in aliy Church o2 Chapel, or in any
other decent Place, od the Pir ou Canopy wherein the ſame Sacra-
ment is od Thall be ; 02 unlawfully, contemptuouifly az inalicioutly of
their own power and Authority, pull down, deface, (poil, oj other-
wiſe break any altar 02 Nitars, oy any Cructfir of Croſs, that now
02 hereafter ſhall be in any Church, Chapel od Church-yard, that
then cvery ſuch Offendo, and Dffendojs in any the Premiſles, his of
their Aidol, Procuro2 o2 Abettor, Aidols, Procurors or Abettors,
immediately and fouthwith after any of the ſaid a& O2 Aas, od other
the ſaid misdemeano's ſo committed, done ou made, oz any Time az
Cimes after, ſhall be apprehended, arreſted and taken by any Conffa-
ble or Contables, Church-warden oj Church-wardens of the ſaid
Pariſi), Town or Place where the faid Dffence ou Dffences fhall be lo
committed, made ou done, oz by any other Dficer ou Dfficers, op by
any other perſon or Perſons then being preſent at the Time of the
ſaid offence or Dffences ſo unlawfully committed, made oy donie:
Which Perſon od Perſons fo apprehcnded, taken op arreſted, with Examina-
convenient ſpeed mall be brought and carried to any Juſtice of peace tion by Ju-
within the ſaid Shire, od within any City, Borough, Liberty ez Town-
Corporate wherein Juſtices of Peace ve, where the ſaid Difence oz
Difenccs ſhall be ſo committed, done ol made : And that the ſaid
Juñice of Peace, upon due sccuſation thereupon had and made by
tije Apprehendo?-02 Apprehendors, oj other perfon of perſons, of
any
1
ftices
344 The Clergy-Man's Law, Or: Chap. XXXIV.
Commit-
Dilurbancr. any of the ſaid Perſon o? Perſons ſo offending, fo2tiwith ſhall com:
init the ſaid perſon ol Perſonis (o appreljended, arreſted and takeit,
to Cafe keeping and Cuſtody, as by the Diſcretion of the ſaid Juffice
fhall be thought moft meet and convenient, and that within Sir
Days nert and immediately after the ſaid accuſation ſo bad and
made, the ſaid Juſtice, with one other Juſtice of Peace in the ſaid
Shire, City, Borough, Liberty, Od Town:Coppolate, thall diligent
ly eramine the aã o gas, Dffence or Dffences aforefaid.
and if they the ſaid two Juſtices of Peace fall, upon their ſaid
ment by
Juſtices.
Eramination, find oy perceive the ſaid Perſon od Perſons ſo accuſed
guilty of any the ſaid Dffence o2 Dffences whereof he od they fall
be ſo accuſed, and that by two ſufficient Witnelles, oj by his oj tjeir
own Confeſſion o2 Confeſſions, that then and immediately, with com
venient ſpeed, the ſaid two Juſtices ſhall commit and award the ſaid
Perſon o2 Perſons ſo accuſed, as is aforeſaid, to the Gaol of oz fog
the ſaid Shire, City, Borough, Liberty, O2 Town-Corporate where
the ſaid Dffence od Dffences was ſo committed, made of done, there
to remain without Bail 02 Painplize by the ſpace of Three months
then niert enluing, and further to the niert Duarter Seſſions to be
holder within the ſaid Shire, City, Bolough, Liberty od Town
Corporate, nert after the End of the ſaid Thue Months; at which
Caio Duarter Sellions; the ſaid perſon of Perſons ſo committed to
the Gaol, as is aforeſaid, upon his op their Reconciliation and Re
pentance in that behalf, before the ſaid Juſtice of Peace, at the ſaid
Sellions, fhall be delivered and diſcharged out of Pulon and Gaol
,
upon ſufficient Surety of his good abearing and Behaviour, to be
then and there taken by the ſaid Juſtices for one whole Year their
nert enſuing, as by the Diſcretion oj Diſcretions of the ſaid Juftices
then and there being, or of the może part of them, thall be thought
meet and convenient : And if the ſaid Perſon or Perſons ſo in Gaol,
as is aforeſaid, will not be reconciled and repent at the ſaid Duar:
ter:Demons, that then the ſaid Perſon o2 Perſons immediately in
Time convenient ſhall be further awarded and committed to the Taid
Gaol by the ſaid Juſtices, ou by the może part of them, there to re.
main without Bail od Painpriſe, until he or they lo committed and
awarded to Gaol, as aforeſaid, ſhall be reconciled, and be penitent
for his or their laid Dffence od Dffences.
Penalty for
and be it further enađed by the authority aforeſaid, That if any
reſcuing an Perſon o2 Perſons at any Time 02 Times after the ſaid Twentietij
Day of December, of their own Authodity and Power, willingly and
unlawfully do reſcue any Difendol B2 Dffendors ſo apprehended, taken
ou arreſted, as is afożeſaid, od will diſturb, hinder 02 let the ſaid
Dffendoj oj Dffendous Co offending, as is aforeſaid, to be apprehend-
ed, taken ou arretted, that then every one of the ſaid Reſcuers, of
Diffurbers thall ſuffer like Inipriſonment, as is afozeſaid, and fur
ther ſhall pay, fo feit and loſe for a fine, for every of his ou their
ſaid Dffences, Five Pounds to the Dueen’s Majeſty, her Heirs and
Succeffois.
and be it further enaked by the authority aforeſaid, That if any
Eſcape to be
preſented. the ſaid Dffendojs afojelaid be not takeni, apprehended oz arreſted in
mediately in Time convenient, as is aforeſaid, but do eſcape od go
away, that then the ſaid Eſcape ſhall be lawfully preſented before the
Juſtices of Peace in the ſaid Shire, City, Borough, Liberty 02
Cowi:
Offender,
8pc.
2.
Chap. XXXIV. The Complete Incumbent.
345
and Amer-
ciaments;
Town:Corpojate, at the nect Quarter Deſlions to be laiden Where Didurhance.
the maid Eſcape was made and ſt[ffered, and that then the Jababitants
of the Pariſh, where the ſaid Eſcape was ſo ſuffered, thall foyfeit and
loſe to the Dueen’s Majeđy, her heirs and Succellois, fo? every
[rich Dffence Five Pounds, to be levied and taken as other lilie &
merciaments befove this Time have beert levied and takeit up-
on any Gillage, pundled od Town, for the Eſcape of any aurderer,
oz other Felon, foz not making Purſuit tipon Due and Cry, accoud-
ing to the Eſtatute of Wincheſter, and the Efatute made and pzos
vided in the Third Year of the worthy King Henry the Seventh.
and be it further enazed by the Authority afozefaid, That all and juſtices, Esco
fingular Juſtices of Peace, Juſtices of afile, Juffices af Oyer and to ſet Fires
Determiner, and all and fingular Mayors, Bailiffs, and Juftices of
Peace, within any City, Borough od Town-Carpajate, in any Parts
within this Realm, within the Limits of their Coinmillion 02 Com-
milions, ſhall have full Power and Authority by Uertue of this ad,
after the ſaid Twentieth Day of December, to enquire of all and
fingular the Difences and Pisdemeanours afojelaid, and to hear and
Determine the ſaine, and to ſet the fines and Amerciaments of the
ſaid Dffendoz o2 Ditendørs, as is aforeſaid.
Provided always, and be it further enađed by the Authožity afoje: Proviſo for
faid, That this ax, 92 any Ching therein contained, ihall not in the Ecclefia-
any wiſe extend to abrogate and take away the authority, Jurisdi digal Juriſ-
dion, power and Puniſhment of the Ecclefiaftical Laws now trand
ing and repaiụing in their force, of op fox the Punithyment of any
the fences and Misdemeanols afojeça[d; but that the authority,
Power, Jurisdition and Punifinents of the ſaid Ecclegiaffical Laws,
of and for any of the Drences and Bisdemeanours aforeſaid, thall
and in full Power and Strength, and to be uſed and exerciſed in
all and in every Thing, as though this Ax had never bee had and
made ; this preſent Na, oj amp Ching therein contained to the con
trary thereof in any wiſe notwithtanding.
Provibed always, and be it enađed, That whatſoever Perſon of Not to be
fending in the Premifles, thail for any the Dffences afoje recited re: twice punilla-
ceive Puniſhment of the Didinary, having a Teſtimonial thereof
ed, c.
under the ſaid Didinary's Seal, thall not for the Came Difence eft
cogns be conviđed before the Juſtice ; and in like wiſe receiving for the
ſaid Dffences Punidhment by the Juſtice, he Wall not for the fante
Dkence eftfaons receive Puniſhment of the Didinary, any Thing in
this pa to the contrary notwithttanding. Scat. 1 Mar. c. 3.
Firſt, As to this Statute it is to be noted, That ſo much of it as con- Maſs repcala
cerns the Mafs, is repealed by Stat. i Eliz. 6. 2, and fo faith Dodde- ed.
ridge in Creſwick and Rokesby's Cafe. Hill
. 10 Jac. B. R. 2 Bulſtrode
51. But in other Reſpects, as if Diſturbance be of a Perfon in Preach-
ing, &c. the Statute remains yet in Force, Hill. 11 Jac. B. R. Croſs
y. Stanhop, Godbolt, and in the ſaid Cafe of Creſwick v. Rokesby'. 2
Bulſtrode 51. But one being committed to Priſon upon this Statute,
for diſturbing a Miniſter lawfully authorized in his publick Prayer,
and Preaching ; it was agreed, that that Part of the Statute which
concerns Diſturbance in Preaching, is not repealed by the Statute of
i Eliz. but as to Diſturbance in Prayer it is, and therefore the Commit-
ment being for both was naught. Hill
. 23 Car: 2. B. R. Dr. Bruce's
kkk
Cafe,
ز
346
The Clergy-Man's Law : Or, Chap. XXXIV.
5 Sogn 6 Ed. 6.
cap. 4.
Word ſuch] in the Statute ſhall not be referred to the Quality of the
Digurber:, Caſc. Aleyn 50. But in Paul Moon's Cafe. Trin, 33 Car. 2. B. R.
Sir Thomas Jones, Rep. 159, ic was reſolved by the Court, that this
Statute did extend to the Divine Service now eſtabliſhed; and that the
Service, but to the Authority by which it is eſtabliſhed.
And for Preſervation of the Peace of the Church at all Times, and
of the Miniſter in Tinie of Divine Service, it hath been alſo enacted :
Foraſmuch as of late divers and many outragious and barbarous
Behaviours and ads have been uſed and committed by divers un.
godly and irreligious perſons, by quarrelling, bawling, fraying and
fighting openly in Churches and Church-yards ; therefoje it is enaged
by the King our Sovereign L old, with the Atlent of the Louds Spiri
tual and Tempozal, and the Commons in this preſent Parliament al-
ſembled, and by the authodity of the ſame, That if any perſon whatſo.
ever fail, at any Time after the firſt Day of May neft coming, by
Wolds only, quarrel, chide od brawl in any Church of Church.yard,
that then it thall be lawful unto the Didinary of the Place where the
Came Dffence thall be done, and proved by two lawful Witneſſes, to
ſuſpend every perſon ſo offending ; that is to ſay, tf he be a Laymali,
ab ingreſſu Èccleſiæ, and if he be a Clerk, from the Miniftration of his
Dlice for to tong Time as the Caid Didinary by bis Diſcretion thall
think meet and convenient, accoding to the Fault.
Smiting, Egoci And further be it enacted by the Authority aforeſaid, Chat if any
Perfon 02 Perſons, after the ſaid firft Day of May, chali finite od lay any
violent hands upon any other, either in any Churcb oChurch.yard,
That then, ipfo facto, every perſon to offending chall be deemeð er:
communicate, and be ercluded from the Fellowfhip and Company of
Chriſt's Congregation.
and alſo it is enacted by the authority aforeſaid, Chat if any perſon,
after the Caid firî Day of May, thall maliciouñy frike any perſon
with any Weapon in any Church of Church-yard : o2 after the Came
firſt Day of May fall daw any TUeapon in any Church of Chuch-yard,
to the Jntent to ffrike another with the ſame Weapon, that then eve's
ry perſon offending, and thereof being convicted by Uerdict of twelve
gen, 02 by his own Confeflion, of by two lawful Tuitneſſes, befoje
the juſtices of Alliſe, Juſtices of Oyer and Determiner, 02 Juftices of
Peace in their Sellions, by force of this act ſhall be adjudged by the
Came juſtices, before whom ſuch perſon thall be convided, to have
one of his Ears cut off : And if the Perſon on Perſons lo offending
bave none Ears, whereby they dould receive ſuch Punithment as is
befoje declared, that then he od they to be marked and burned in the
Cheek with an hot Iron, having the Letter F. whereby be oz they may
be known and taken for fray-makers and fighters, and beïdes that
every ſuch perſon to be and ſtand ipfo facto ercommunicated, as is
aforeſaid. Stat. 5 and 6 Ed. 6. C. 4.
This Statute doth extend as well to Cathedral as Parochial Churches,
and Church-yards, per Curiam. Pafch. 33 El. B. R. Dethick's Cafe,
3 Croke 224.
And although this Statute doth ſay, that he who ſmites another,
&c. ſhall be deemed excommunicate ipfo fa&to, &c. yet there ought
to be a Declaration in the Eccleſiaſtical Court of the Excommunica-
tion, otherwiſe a Perfon excommunicated for an Offence againſt this
Statute could not be abfolved from ſuch Excommunication, nor receive
Abſolution from the Ordinary: Paſch. 4 Car. C. B. Viner v, Eaton,
Hetlen
Striking
with any
Weapon.
S
Cathedral
Churches.
Chap. XXXIV: The Complete Incumbent.
347
ley 86.
fence
Caſe, 4
Hetley 86. Alſo he that ſmites another, doth not ſtand excommuni- Difurbers, .
cate until he be convicted thereof at Law, and this tranſmitted to
the Ordinary. Trin. 23 Car 2. Dyer v. Eaſt, 1 Ventris 246.
When the Proceedings for the Offences againſt this Statute are in Coſts given.
the Court Chriſtian, Coſts may be given pro expenſis litis, but not pro
damnis; for if ſo, a Prohibition will lie. Hill. 15 Jac. B. R. Large
V. Alton, 2 Croke 464. Paſch. 4 Car. C. B. Viner v. Eaton, Hel-
And if any Perſon is beaten in any Church, or Church-yard, it is Perſon ma-
an Offence againſt this Law for him that is ſo beaten or aſſaulted to king De-
give back any Blows, or draw a Weapon, Gci in his own Defence, as
he may do in other places. Hill. 12 Jac. B. R. Frances v. Ley, 2
Croke 367. Mic. 12. Jac. Day v. Bedding field, Noy 104.
If the Proceedings be in the Temporal Court by way of Indictment Indi&tment
for drawing a Weapon in the Church, Gc. it muſt be ſaid, [With an for drawing
Intent to ſtrike ſuch a Perſon,] otherwiſe the Indictment will not be croce how to
good; and in the Caſe upon ſuch an Iridictment, (where it was not ſo be laid.
faid) it being moved, that the Indictment might be good as for an
Aſſault only, ſo as the Offender ſhould be fined for the fame, yet by
the whole Court, the Indictment was void in all, the Concluſion of it
being contra formam ſtatuti, fo the Offence laid as an Offence againſt
the Statute, the Jary cannot enquire and find an Offence at the com-
mon Law. 33 Éliz. 8: R: Penhallo's Cafe, 3 Croke 231, the ſame
Leonard 49; and Trin. 42 Eliz. Noy 171. And alſo in an
Indictment upon this Statute for ſtriking in the Church, it muſt be
ſhewed that the ſtriking was with the Weapon, for to ſtrike only where
no Weapon is uſed, is but Excommunication ipfo fatto. Trin. 12 Car.
B. R. Chololey's Cafe, 1 Croke 464. And if a Man takes up a Stone
in the Church-yard, and offers to throw it at another, or having a
Hatchet or Ax in his Hand, offers to ſtrike another therewith, this is not
an Offence within this Statute of 5 and 6 Ed. 6, by two Juſtices ; for
theſe are not ſuch Weapons as may properly be ſaid to be drawn, as a
Sword and Dagger, &c. Dalton Juſtice of Peace, cap: 23. fol. 49. So
two Perſons being committed to Priſon by Juſtices of the Peace, for
Diſturbance of a Miniſter licenſed during his Office, were diſcharged
upon a Hab' Corp by the Court of the King's-Bench, for that their
Commitment was too general; not fhewing wherein they diſturbed,
but only that they, per apertuin fattun diſturbed, &c. not ſhewing
the particular Fact whereby they did difturb, viz. by Brawling, Fight-
ing or otherwiſe, there being ſeveral Puniſhments to each, but the
Court bound them to their good Behaviour for å Year, &c. Mich. 29
Car. 2. Dominus Rex v. Nichols and Robins; 3 Keble 802.
And generally it is that an Ordinary, for the Peace of the Church, niay Ordinary
inhibit any Perſon from making a Diſturbance in the Chúrch, where may inhibit,
he foreſees a Diſturbance is likely to be, and if his Inhibition be difo
beyed, may excommunicate for the Contempt. Hutton's Cafe, Latch.
116. So may the Church-wardens juſtify to appeaſe any Irreverence
or Diſorder in the Church, or Church-yard, in Time of Divine Ser-
vice, as to whip Boys, or take off the Hats of thoſe who irreverently
would keep them on, Mich. 18 Car. 2. Hawe v. Planner, 2 Keble
1 24, fame Cafe, 1 Sanders 13. i Levinzi 196, and 1 Siderfin 301,
or a Perſon may be indicted for uſing indecent and irreverent Behavi-
our in the Church during Divine Service, Paſchi 15 Car: 21 i Keble
491, or a Supplicavit may be granted againſt ſuch a Perſon, that is,
Kkk 2
ebeca
Q
348 The Clergy-Man's Law: Or, Chap. XXXIV.
any Mir
I W. & M. c.
18.
Diffurbers. a Writ whereby the Party complained of, ſhall be bound to give Sure-
ty, and be bound to keep the Peace. Pafch. 14 Car. 2. the King v.
Douglafs, i Keble 290.
Miniſter of
And it ſeems that the Miniſter himſelf, if he be guilty of
fending
behaviour in his Preaching, or otherwiſe in the Church, may be bound
to the good Behaviour. Howſon's Cafe, Hetley 104.
It is alſo enacted, Chat if any perſon or perfons at any Time 02
Times after the tenth Day of June, do, and thall willingly, and of
Purpoſe, malicioudy of contemptuoufly come into any Cathedral 02
Diſturbing Parith Church, Chapel, of other Congregation permitted by this
the Congre- act, and diſquiet of diſturb the Came, 02 milule any Preacher of
gation, &c. Ceacher, ſuch perſon of Perſons upon proof thereof before
any jua
fice of Peace, by two o2 more ſufficient Witneſſes, fhall find two
Sureties to be bound by Recognizance in the Penal Sum of Fifty
Pounds; and in Default of ſuch Sureties, thall be committed to puis
(on, there to remain till the nert General ou Duarter-Seſtions. And
upon Conviäion of the ſaid Difence at the ſaid Øeneral 02 Duarter:
Seftions, thall ſuffer the Pains and Penalty of twenty Pounds to the
Uſe of the King and Dueen's majetties, their Heirs and Succeſſors.
Stat. i W. & M. cap. 18.
Canons re,
Beſides the Acts of Parliament which thus ſecure the Miniſter in his
Di-
Kurbance, quiet Officiating, there be theſe three Canons which alſo reſtrain all
Diſturbance and Moleſtation.
CPC.
CAN. XVIII. A Reverence and Attention to be uſed within the
Church in Time of Divine Service:
In the Time of Divine Service, and of every Part thereof, all due
Reverence is to be uſed; for it is according to the Apoſtle's Rule, Let
all Things be done decently, and according to Order. Anſwerable to
which Decency and Order, we judge theſe our DireEtions following:
No Man ſhall cover his Head in the Church or Chapel in the Time of
Divine Service, except he have fome Infirmity, in which Caſe let him
wear a Night-cap or Coif. All Manner of Perſons then preſent fall
reverently kneel upon their Knees when the General Confeſſion, Litany,
and other Prayers are read, and Mall Atand up at the ſaying of the Belief,
according to the Rules in that Behalf preſcribed in the Book of Com-
Hon 'Prayer; and likewife when in Time of Divine Service the Lord
Jeſus shall be mentioned, due and lowly Reverence shall be done by all
Perſons preſent as it hath been accuſtomed, teſtifying by theſe outward
Ceremonies and Geſtures their inward Humility, Chriſtian Reſolution,
and due Acknowledgment, that the Lord Jeſus Chriſt, the true Eter-
nal Son of God, is the only Saviour of the World, in whom alone all the
Mercies, Graces, and Promiſes of God to Mankind for this Life and
the Life to come are fully and wholly compriſed. None, either Man,
Woman, or Child, of what Calling foever, shall be otheresiſe at ſuch Times
bufied in the Church, than in quiet Attendance to hear, mark, and un-
derſtand that cohich is read, preached, or miniſtred, ſaying in their due
Place audibly with the Miniſter, the Confeſſion, the Lord's Prayer, and
the Creed, and making ſuch other Anſwers to the publick Prayers as
are appointed in the Book of Common Prayer; neither ſhall they diſturb
the Service or Sermon by walking of talking, or any other Way, nor de-
ز
I
part
Chap. XXXV. The Complete Incumbent.
349
part out of the Church during the Time of Service or Sermon, without Keading of
ats, Soc.
Tome urgent or reaſonable Cauſe.
CA N. XIX. Loiterers not to be ſuffered near the Church in Time
of Divine Service.
The Church-wardens or @zeft-men, and their Afiftants, Shall not
Suffer any idle Perſons to abide, either in the Church-yard or Church-
porch, during the Time of Divine Service or Preaching, but ſhall cauſe
them either to come in, or to depart.
CAN. CXI. Diſturbers of Divine Service to be preſented.
In all Viſitations of Biſhops and Archdeacons, the Church-wardens
or Queſt-men, and Sides-men, shall truly and perſonally preſent the
Names of all thoſe which behave themſelves rudely and diſorderly
, is
the Church, or which by untimely Ringing of Bells, by Walking, Talk-
ing, or other Noiſe, Mall hinder the Miniſter or Preacher.
T
CHAP. XXXV.
Tab. Cod.
Tit. Church
The Duty of Miniſters in reading ſome
particular Acts of Parliament and Pro-
clamations of the King; as likewiſe Briefs,
Citations, &c.
TH
HE legiſlative Authority of this Kingdom, for the better Pro- Reading A&
mulgation of fome good and wholeſome Laws, has thought fit of Parlia-
to require the publick Reading of them in the Church after Morning 5th of Nous
Prayer or Preaching, to the End that all Chriſtian People may have
the more eaſy and more perfect Knowledge of them, and be more in-
clined to pay their Obedience to them. The firſt Statute appointed to
be read in Churches, was (I think) Anno 3 Jac. 1. C. 1, A1 AEt for
a Publick Thankſgiving to Almighty God every Year on the Fifth
Day of November, as before recited, Chap. 32, the Annual Reading
preſcribed in theſe Words :
and becauſe all and every perſon may be put in mind of his Duty, 3 Jac. I c. i.
and be then better prepared to the ſaid yoly Service, be it enated by
the Authority aforeſaid, that every minifter thall give Warning to his
Pariſhioners publickly in the Church, at againing Prayer the Sunday
before every ſuch Fifth Day of November, for the due Dbſervation of the
Caid Day; and that after goining Prayer oz Preaching upon the ſaid
Fifth Day of November, they read publickly, diftin&ly and plainly this
preſent a&.
The next Statute appointed to be read in Churches, was (I think) Simile on the
Anno 12 Çar. 2. C. 14, An Act for a perpetual Anniverſary Thankſgi- mely Day of
ving on the Nine and Twentieth Day of May, as 'recited in the
forc
3
350 The Clergy-Man's Law. Or, Chap. XXXV.
ats,
6, 7 W. 3:
C. II.
Aid againſt
Heading of foregoing Chap: 32, and the publiek Reading of it enjoined in theſe
Words:
And to the end that all perſons may be put in azind of their Duty
thereon, and be the better prepared to diſcharge the Came with that
Piety and Devotion as become them, be it further enađed, That e.
very minifter thall give notice to his partchioners publickly in the
Thuich at morning Prayer, the Lord's Day nert befoze every ſuch
Twenty-ninth Day of May, for the due Obſervation of the ſaid Day,
and Thail then likewiſe publickly and diftinctly read this preſent Act to
the people.
Where Note, That although theſe two Aạts of Parliament be equal-
ly enjoined to be read in Churches, yet the Time and Manner of,
reading them are different. For Firſt, As to the Time of Reading,
the Act for the sth of November is to be read upon the ſaid Day, and
not when the Notice of it was given the Sunday before ; whereas the
Act for the 29th of May is to be read not on the Feſtival it ſelf, but
on the Lord's Day next before every ſuch Twenty-ninth Day of May.
Then Secondly, In a differing Manner, the Act for the sth of Novem-
ber to be read after Morning Prayer or Preaching ; but the Act for
the 29th of May at Morning Prayer when Notice is publickly given
in the Church for the due Obfervation of the ſaid Day, that is, imme-
diately after the Nicene Creed.
The third and laſt Statute appointed to be read in Churches for
the Terror of Evil Doers, is the Statute made Anno 6 and 7 W: 3.
Curſing and cap: 11, An Act for the more effettual Suppreling prophane Curſing
and Swearing; whereby it is enacted,
Whereas it is found by Experience, that an Act of Parliament made
in the Dne and twentieth Year of the Reign of King James the firft, en.
tituled, An Act to prevent and reform prophane Curſing and Swearing, hath
proved ineffequal to the fuppzetting of thoſe deteſtable Sins, by reaſon
of Come Deficiencies in the ſaid act : Be it therefore enađed by the
King's moft ercellent Majeſty, by and with the advice and Conſent of
the Lods Spiritual und Temporal, and Commons in this preſent
Parliament afſembled, and by the authožity of the ſame, That if any
Perſoni 02 Perſons Gall after the four and twentieth of June, in the
Year of our Lojd Dne thouſand tir hundled ninety: tive, prophanely
[wear oz curſe in the preſence oj Hearing of any Jufice of Peace
of the County, Riding 02 Dividon, oz of the Mayor, O2 other
Head Dfficers, od Juſtices of Peace foz any City 02 Town:Corporate
where ſuch Difence is 02 ſhall be committed, o fhall be thereof cott-
vided by Dath of one Witneſs, ol by the Confeſſion of the Party of-
fending, before any Juſtice of Peace of the County, 02 Mayol, o?
Bailiff, or other chief Dlicers, 02 Jutice of the peace of ſuch City
02 Town Copojate where the ſaid Dffence ſhall be committed, that
then for every ſuch Offence, the Party Co offending thall foxfett and pay
to the Uſe of the por of the Pariſh where ſuch Dffence or Dffences
ſhall be committed, the reſpective Sums herein after-mentioned; (that
is to ſay) every Servant, Day-Labourer, Common Soldier, and
Coinmon Seaman, Dne Shilling, and every other Perſon Two
Shillings; and in caſe any of the Perſons afojelaid fhail after Convi-
dion offend a ſecond Time, ſuch perſon shall fo{feit and pay double ;
and if a third Time, treble the Sum reſpectively by him oz her to be
paid for the firſt Difence.
Swearing
1
and
Chap. XXXV. The Complete Incumbent.
351
tis
and it is hereby further enacted, That lipon neglex B Réfufal of bieading of
its, Egrc.
Payment of the ſaid forfeiture, any: Juſtice of Peace of the County,
Riding op Diviſion, ol Mayol, or other head Dificer, 02 Juilice of
peace of any City 02 TOWI:Corporate where the ſaid Dffence ſhall be
committed, mall and are hereby authorized and required to direct and
ſend his Warrant to the Conſtabie, Tything-man, Church-warden,
01 Overſeer of the Far of the Parith where the Difenice (ball be com:
mitted, of where the Difender thall inhabit, thereby comnianding theni,
02 Come od one og more of them, to levy by Diſtreſs and Sale the to be leried
Goods of the Difender, the Sum fo forfeited for the Uſe of the Pool by Difrets.
of the Pariſ), as aforeſaid ; and in caſe no ſuch Diſtreſs cail. be had
then every ſuch Difender, being above the sige of firteen Years, thali
hy Tarrant under the hand and Seal of the ſaid Juſtice of Peace oz
other Officers as aforeſaid, be publickly ſet in the stocks for the Space
of one hour for every ſingle Dffence, and for any number of Difen:
ces, whereof be Mall be convicted at one and the ſame Iime, then two
hours ; and if the Party offending be under the age of firteen years,
and fall not fožth with pay the ſaid Fožfeitures, then he of the fall, by
Warrant as aforeſaid, be whipped by the Conftable, od by the parent
Guardian 02 Maſter of ſuch Difender in the preſence of the Conſtas
ble.
and be it further enađed, That if any Juffice of the Peace 02 chief Forfeiture of
Magiftrate ſhall wilfully and wittingly omit the Performance of his Juſtices, by in
Duty in the Execution of this art, he fhall fofeit the sum of five
Pounds, the one moiety to the Uſe of the Informer, to be recovered
by actioni, Suít, Bill 02 Plaint, in any of his majeſty's Courts at
Weſtminſter, wherein 110 Elloin, Protection oj Wiager of Law ſhall be
allowed, nor any moje than one Imparlance.
And it is hereby further enaked, That if any Adion 02 Suit Mall be
commenced or brought againſt any Juſtice of Peace, Conſtable, od 0s
ther Dfficer ol perſon whatſoever, for doing 02 cauſing to be done a:
ny Thing in Purſuance of this act concerning the ſaid Dffences, the
Defendant in ſuch aaion may plead the General Jllue, and give the
ſpecial Datter in Evidence; and if upon ſuch aäion Uerdict be given fog
the Defendant, oj the plaintiff become Donſuit, of diſcontinue his
Action, then the Defendant ſhall have treble Cofts.
Provided always, and it is hereby enađed, That no perſon ſhall be
proſecuted of troubled for any Dffence againſt this Statute, unleſs the
ſame be proved od proſecuted within ten Days niert after the Dffence
committed.
and it is further enacted by the authority aforeſaid, that this Act Forfeiture of
ſhall be publickly read Four ſeveral Times in the Pear in all Pavillj
. the Parſon,
Churches, and all publick Chapels, by the Parlon, Wicar o? Curate ing to read
of the reſpeäive Pariſhcs 02 Chapels, iinmediately after Ponning Pray, this A X.
er on four ſeveral Sundays, (that is to ſay, the Sunday next after the
Four and twentieth Day of June, the Nine and twentieth Day of
September, the five and twentieth Day of December, and the five
and twentieth Day of March, under the pain of Twenty Shillings
for every ſuch Dmillion 02 Negled.
and be it further enacted by the Authodity aforeſaid, That the Ju.
ſtice of Peace, Mayor, or other head Dfficer, fhall Regiſter in a
book, to be kept foz that purpoſe, all the Conviãions made before
h!mui iipon this 9a, and the Time of making thereof, and for what
Difence, and ſhall certifie the came to the nort Generál Duarter Seri
lions
!
352
The Clergy-Man's Law: Or, Chap. XXXV.
its, c.
6 and 7 W.
how it ex-
rates, ac
1
ticading of fions of the peace, fol the County of place where the Difences are
committed, to be there kept upon Reco?d by the reſpeđive Clorks
of the Peace, to be ſeen without fee od Reward.
3.
cap. II.
Note, The publick Reading of the former Acts was enjoined by Pre-
tends to Cu- cept only; this alone by Penalty on the Miniſter omitting or neglect-
ing his Duty herein. But obſerve, the Duty being made perſonal, and
extending to the Parfon, Vicar or Curate, the Penalty shall be levied
not on the Benefice, nor on the Incumbent, if he be not himſelf Reli-
dent, but on the Curate or other Perſon allowed to officiate. Note
further, There is this Difference in a Juſtice of Peace and a Miniſter
becoming obnoxious to Penalties in this Act ; the Juſtice of Peace or
chief Magiftrate ſhall incur no Forfeiture, unleſs he wilfully and wit-
tingly omit the Performance of his Duty, but the Miniſter ſhall be li-
able to Forfeiture for the bare Omiſſion of his Duty, though ſuch O-
miſſion were not wilful, but caſual and undeſigned.
Reading it The diligent Reading of this Act was expreſly recommended by the
recommende Archbifhop of Canterbury in his Letter to the Right Reverend the
Archbiſhop. Lords Biſhops of his Province, July 16, 1695, in theſe Words ; In the
firf Place, it is the King's Pleaſure that you should take Care concern-
ing the Act againſt prophane Curfing and Swearing, not only that
it be publickly read as the Law has in that caſe provided, but that the
Clergy be directed, both in their Catechizing and Sermons, to infif
often
upon thoſe Points, to the End that, by God's Bleffing upon their
faithful Endeavours, a Stop may be put to thoſe execrable Wickedneſ
ſes, which, if they be ſuffered to continue, will bring down God's hea-
vy Judgments upon this Church and Nation. Secondly, There are al-
to other Acts to be read publickly in Churches, which yet are not read
(as I underſtand) in many places. I deſire you to remedy that Neg-
le Et
Again in his
The fame Honourable Prelate has given this good Advice in his Cir-*
cular Letter, A. D. 1699, Which Information and Requeſt, eſpecially
in the Caſe of fuch incorrigible Offenders, can be made by none le pro-
perly as by the Clergy, who may beft be ſuppoſed to underſtand the Ne-
cellity there, of having Recourſe to the Civil Magiſtrate. And ſince
our Law-givers have enacted theſe Temporal Puniſhments on purpoſe
to alist us in the Diſcharge of our Miniſtry, it would be a great Fail-
ing in us not to make uſe of them, when all other Methods have been
tried to little or no Effett.
Every pious Perſon Mould, if need be, be put in Mind by the Cler-
gy, that he ought to think himſelf obliged to uſe his beft Endeavours to
have ſuch Offenders puniſhed by the Civil Magiſtrate, as can no other-
wiſe be amended. And that when he hears his Neighbour.ſwear, ar
blafpheme the Name of God, or ſees him offend in Drunkenneſs
, or
Prophanation of the Lord': Day', he ought not to negle&t to give the
Magiſtrate Notice of it. In ſuch a Caſe, to be called an Informer, will
be fo far from making any Man odious in the Judgment of ſober Per-
fons, that it will tend to his Honour, when he makes it appear by his
unblameable Behaviour, and the Care he takes of himſelf and his own
Family', that he doth it piirely for the Glory of God, and the Good of
bis Brethren.
The Benefic Although no other Statutes of this Realm are enjoined to be read
fuch pub- in Churches, but ſuch only as have been before-mentioned ; yet if we
conſider the good Uſe and Benefit of ſuch publick Reading: As Firſt,
That
Circular
Letter.
hek Read-
อ
Chap. XXXV. The Complete Incumbent.
353
1
'That by this Means many of the poor and ordinary People come to the Headiug of
Notice of the Law, and the Knowledge of their Duty, of which they acts, Soc.
might otherwiſe have remained Ignorant, or at leaft Inadvertent. Se
condly, That ſuch ſolemn Way of Reading after Divine Service in
the Church does raiſe more Attention, and leave a better Inipreſſion,
than if the ſame were promulged in any other place at any ordinary
'Time. Thirdly, That looſe and wicked People by hearing Sentence
openly pronounced upon them may be the more afraid to offend, and
may be reſtrained by Terror when they would not have obcyed for
Conſcience-Sake. Fourthly, That good Magiftrates and conſcientious
Informers may be the more encouraged to diſcharge their Duty; when
the Powers committed to them, and the Execution preſſed upon them,
are openly declared in the Face of the Congregation. Fifthly, That
Miniſters
may
with
greater Zeal rebuke Vice and Prophaneneſs when
they can argue from Humane as well as Divine Laws, and can threat-
en á preſent Vengeance as well as a future Judgment. Sixthly, That
all Chriſtian Subjects may be the better diſpoſed to lead a quiet and
peaceable Life in all Godlineſs and Honeſty, when they hear the Civil
Government concerned for the Honour of Religion, and finding the
Magiſtrate ſo becoming the proper Miniſters of God. I ſay, confider-
ing theſe and many other Advantages of penal Statutes againſt Immo-
rality and Prophaneneſs being read in Churches, it were to be wiſhed
that the like Proviſo had been made for thoſe other Acts of Parlia-
ment that condemn and puniſh the more notorious Sins ; ſuch, ſuppoſe;
as Anno 5 Eliz. cap. 9. An Act for Puniſhment of ſuch Perſons as
Shall procure or commit any wilfull Perjury. Anno 4 Jac. 1. c. 5.
An Act for repreſſing the odious and loathſome Sin of Drunkenneſs.
Anno 21 Jac. i. cap. 7. An Ast for the better repreſſing of Druriken-
neſs
, and reſtraining the inordinate Haunting of Inns, Ale-houſes, and
other Vittualling-houſes. Anno 29 Car. 2. cap. 76. An AEt for the bet-
ter Obſervation of the Lord's Day, commonly called Sunday. Anno
9 and 10 Will. 3. An A&t for the more effe&tual ſuppreſling of Bleſphe-
my and Prophaneneſs. And (to read within the Cities of London and
Westminſter, and the Liberties of the fame) Anno 3 Jac. I. cap. 21.
An Act to reſtrain the Abuſes of Players. If theſe and the like whol-
fome Laws made, or to be made, were enjoined to be read in Churches
upon ſeveral ſtated Sundays, it would ſoon teach our common People
the more readily to underſtand their Duty, and the more cautiouſly to
practiſe it.
But there is one Thing to be wiſhed for in this Matter; which is, want of
that when Acts of Parliament are enjoined to be read in Churches, there Proviſo's
,
might be ſome Proviſo added, that the Church-wardens ſhould be ob- and of the
liged to procure ſuch Acts at the Charge of each Pariſh, and preſerve
them as Goods of the Church for ſucceſſive Uſe and Application of
them ; leaſt for want of ſuch Proviſion it ſhould come to paſs, (what I
doubt has already often happened) that in remote Villages and poor
Benefices the Miniſters have no due Notice of ſuch Acts to be read, or
be not ſo able to purchaſe them; and the two Acts for the sth of No-
cember and the 29th of May have been very often neglected to be read
in Country Churches; and even in Cities, Towns, and Corporations,
Miniſters were forced to read them out of a large Statute Book brought
into the Desk in not ſo decent and reverent a Manner, becauſe thoſe
Acts were not in fufficient Numbers ſingly printed, and becauſe the
Clergy could not ſo well procure them.
Lil
This
X
Afts.
ز
354 The Clergy-Man's Law: Or, Chap. XXXV.
Proclama-
tions.
Proclamati-
ons to be
read.
This Miſchief has been in great Meaſure remedied by the vigilant
and pious Care of the Moſt Reverend Father in God, Thomas Lord
Carc of the Archbiſhop of Canterbury, who, for the better Accommodation of the
Archbiſhop Clergy, and the Good of the Publick, has cauſed to be printed and pub-
for Remedy. liſhed in a ſmall and cheap Volume, Ostavo, A Colle&tion of Articles,
Canons, Injunktions, &c. together with the ſeveral Acts of Parliament
concerning' Ecclefiaftical Matters, ſome whereof are to be read, in
Churches, London, MDCXCIX.
The Pariſh-Prieſt is likewiſe to obferve, that beſide the expreſs Acts
of Parliament before-mentioned, His late Majeſty, being thereunto
moved by the pious Addreſs of the Commons in Parliament aſembled,
did by the Advice of his Privy-Council iffue out two ſucceſſive Procla-
mations, for preventing and puniſing Immorality and Prophaneneſs ;
and charged and commanded every Miniſter in his reſpective Pariſh
or Chapelry to read, or cauſe to be read, the ſaid Proclamations at leaſt
Four Times in every Tear, immediately after Divine Service.
The firſt Proclamation for preventing and puniſhing Immorality and
Prophaneneſs.
William R.
HER E AS we cannot but be deeply ſenſible of the great Good-
neſs and Mercy of Almighty God in putting an End to a
long, bloody and expenſive War, by the Concluſion of an honourable
Peace, so we are not leſs touched with a Refentment, that notwith-
ftanding this and many other great Bleſſings and Deliverances, In-
piety, Prophaneneſs and Immorality do ſtill abound in this our King-
doi : And whereas nothing can prove a greater Diſhonour to a well
ordered Government, where the Chriſtian Faith is profeſed, nor is
likelier to provoke God to withdraw his Mercy and Bledings from us,
and inſtead thereof to infli&t heavy and ſevere Judgments upon this
Kingdom, than the open and avowed Practice of Vice, Immorality
,
and Prophaneneſs: which amonſt many Men has too much prevailed
in this our Kingdom of late Years, to the high Diſpleaſure of Al-
nzighty God, the great Scandal of Chriftianity, and the ill and fatal
Example of the reſt of our Loving Subjects, who have been ſoberly edu-
cated, and whoſe Inclinations would lead them to the Exerciſe of Piety
and Virtue, did they not daily find ſuch frequent and repeated In-
ſtances of diſolute Living, Prophaneneſs, and Impiety, which has in
a great Meaſure been occaſioned by the Neglect of the Magiſtrates not
putting in Execution thoſe good Laws which have been made for ſupa
preſſing and puniſhing thereof, and by the ill Example of many in
Authority, to the great Dishonour of God, and Reproach of our Reli-
gion. Wherefore, and for that, we cannot expe Et Increaſe or Continu-
ance of the Bleſſings we and our Subje&ts enjoy, without providing Re-
inedies to prevent the like Evils for the future, we think our ſeljes
bound by the Duty we owe to God, and the Care we have of the Peo-
ple committed to our Charge, to proceed in taking effectual Courſe
,
that Religion, Piety, and good Manners may, according to our hearty
Defire, flouriſh and encreaſe under our Adminiſtration and Govern-
ment; and being thereunto inoved by the pious Addreſs of the Commons
in Parliament aſſembled, we have thought fit, by the Advice of our
Privy Conncil
, to ifre this oxy Royal Proclamation, and to declare
011r Royal Purpoſe and Reſolution to diſcountenance and punish all
Manner
4
Chap. XXXV. "The Complete Incumbent.
355
tiong.
Manner of Vice, Immorality and Prophaneneſs in all Perſons from Proclama:
the higheſt to the loweſt Degree within this our Realit, and particu-
larly in (uch who are employed near our Royal Perſon, and that for
the greater Encouragement of Religion and Morality, we will upon
all Occaſions diſtinguiſh Men of Piety and Vertue by Marks of our
Royal Favour. And we do expect, that all Perſons of Honour, or in
Place of Authority, will to their utmoſt contribute to the diſcourite-
nancing Men of diſolute and debauched Lives, that they being re-
duced to shame and Contempt, may be enforced the ſooner to reforiz
their ill Habits and Practices, that the Diſpleaſure of good Men to-
ward thein may ſupply what the Law (it may be) cannot wholly prevent.
And for the more effettual reforming theſe Men, who are a Difcredit
to our Kingdom, our further Pleaſure is, and we do hereby ſtrictly
charge and command all our Judges, Mayors, Sheriffs, Juſtices of the
Peace, and all other our Officers and Miniſters, both Éccleſiaſtical
and Civil, and other our Subjects whom it may concern, to be very via
gilant and ſtrict in the Diſcovery, and the effe Etual Proſecution and
Puniſhment of all Perſons who ſhall be guilty of exceſſive Drinking,
Blaſphemy, prophane Swearing and Curfing, Lewdneſs, Propha-
nation of the Lord's Day, or other diſſolute, immoral or diſorderly
Practices, as they will anſwer it to Almighty God, and upon Pain of
our Higheſt Diſpleaſure. And for the more effettual Proceedings here-
in, we do hereby dire&t and coinmand our fudges of Aſizes and Ju-
ſtices of Peace to give ſtrict Charges, at the reſpective Alizes and
Seffions, for the due Proſecution and Puniſhment of all Perſons that
Mäll preſume to offend in any the Kinds aforeſaid; and alſo of all Per-
Sons that contrary to their Duty shall be remiſs or negligent in putting
the ſaid Laws in Execution, and that they do, at their reſpective
Allizes and Quarter Seſſions of the Peace, cauſe this Our Proclama-
tion to be publickly read in open Court immediately before the Charge
is given. And we do hereby further charge and command every Miniſter
in his reſpective Pariſh or Chapel to read, or cauſe to be read, this our
Proclamation at leaſt Fork Times in every Year, immediately after
Divine Service, and to incite and ſtir up their reſpective Auditories to
the Practice of Piety and Virtue, and the avoiding of all Immora-
lity and Prophaneneſs. And to the End, that all Vice and Debaus
chery may be prevented, and Religion and Virtue practiſed by all of:
ficers, private Soldiers, Mariners, or others, who are employed in our
Service either by Sea or Land, we do hereby ſtrietly charge and com-
mand all our Commanders and Officers whatſoever, that they do take
Care to avoid all Prophaneneſs, Debauchery, and other Immoralities,
and that by the Pietý and Virtue of their own Lives, and Converſa-
t10125, they do ſet good Examples to all ſuch as are under their Autho-
rity, and likewiſe to take Care, and inſpect the Behaviour and Man-
ners of all ſuch as are under them, and to puniſh all thoſe who Mall
be guilty of any-the Offences aforeſaid. And whereas ſeveral wicked
and prophane Perſons have preſumed to print and publiſh ſeveral pera
nicious Books and Pamphlets, which contain in them impiouis Doctrines
againſt the Holy Trinity, and other fundamental Articles of our Faith,
tend ng to the Subverſion of the Chriſtian Religion ; therefore for the
punishing the Author's and Publiſhers thereof, and for the prevent-
ing ſuch impious Books and Pamphlets being publiſhed or printed for
the future, we do hereby ſtrictly charge and prohibit' all Perſons that
they do not preſume to write, print or publiſh any ſuch pernicious
Lil 2
Books
ز
356
The Clergy-Man's Law : Or, Chap. XXXV.
Citations.
Briefs and Books or Pamphlets, under the Pain of incurring our High Dif-
pleaſure, and of being puniſaed
according to tbe ut moſt Severity of the
Law. And we do hereby Arietly charge and require all our loving
Subječts to diſcover and apprehend Such Perſon and Perſons who7
they fall know to be Authors or Publiſers of any ſuch Books or Pan-
phlets, and to bring them before ſome Juſtice of Peace or chief Magi-
Strate, in order that they be proceeded againſt according to Law.
Given at our Court at Kenſington the Four and twentieth
Day of February, 1697, in the tenth Year of our Reign.
A Second Proclamation for preventing and puniſhing Immorality and
Prophaneneſs.
t
William R.
WHERE A S nothing can prove a greater Diſhonour to a well
ordered Government, where the Chriſtian Faith is profeled, nor
is likelier to provoke God
to withdraw his Mercy and Ble lings from
us, &c. we do hereby ſtriefly charge and command all our Commanders
and Officers whatſoever, That they do take Care to avoid all Prophane-
neſs, Debauchery, and other Immoralities, and that by the Piety and
Vertue of their own Lives and Converſations, they do ſet good Éxam-
ples to all ſuch as are under their Authority, and likewiſe take Care,
and inspeet the Behaviour and Manners of all ſuch as are under them,
and to puniſo all thoſe who ſhall be guilty of any of the Offences afore-
Said.
Given at our Court at Kenſington the Ninth of December,
1699, in the Eleventh Year of our Reign.
Copco
Note, This ſecond Proclamation is only a new Edition of the for-
nier, or a further Publication or Reinforcement of it, only leaving out
the Preface of the firſt, which related to that Juncture of Time, the
Concluſion of an Honourable Peace ; and likewiſe omitting the laſt
Paragraphs of it concerning the wicked and prophane Perſons who
have preſumed to print and publiſh ſeveral pernicious Books and Pam-
phlets, this being now provided for by Act of Parliament made 9 and
10 W. 3. So as this latter Proclamation was only publiſhed to ſuper-
ſede thoſe Parts of the former, which were eſpecially adapted to that
Seafon, Feb. 24, 1697, and not ſo proper to Decemb. 9. 1699.
RoyalBriefs, The Clergy are alſo obliged to read in their Churches the Royal
Briefs or Letters Patents, to ask and receive the Charitable Benevolence
of well diſpoſed Perſons, upon Occaſion of great Sufferings and Loſſes
by Fire, or other Caſualty. Though fome have cenſured ſuch Briefs
as arbitrary, and more than legal, eſpecially becauſe of the Non Ob-
ftante Claufe, Azzy Act of Statute to the contrary in any wiſe not-
withſtanding.
Citations,
Beſide Acts of Parliament, Proclamations, and Briefs, the Paro-
chial Miniſter is by Canonical Obedience obliged to read all Citations
and Forms of Excommunication, and other regular Precepts and Or-
ders that are enjoined by the Dioceſan, or other Ordinary of the Place.
And yet when any Forms of Admonition, Cenſure or Enquiry do iſſue
out of the Spiritual Court drawn up in Latin, it may be a juſt Que-
ſtion, Whether the Miniſter is bound to read ſuch original Writing,
Qoc.
Lotin.
or
2
Chap. XXXVI. The Complete Incumbent:
357
EsanAbuse
or not rather a Tranſlation or familiar Explication of it ? For think farms, &c.
it is not agreeable to the Rules of our Church, nor indeed to the
Nature of our Reformed Religion, to have any Thing read in our
Congregations in a Tongue not underſtood by the People:
There is one Abuſe and Innovation, brought into fome Country Proclaiming
Churches, of cauſing the Pariſh Clerk or Sexton to proclaim in the
of Courts,
Church, the Keeping of Courts, the Pariſh Meetings; and other
occaſional Summons; nay, ſometimes to publiſh Hues-and-Cries; and
Enquiries after loft Goodsy Gc. all which are unſuitable to the Place;
and irregular in the Perfon. If in Country Villages it
nient to notify ſuch 'Things when the People are moſt aſſembled toge-
ther, yet ſuch Notice ſhould be given in the Church-yard or Porch,
not in the Body of the Church;' or at leaſt, not there by any Lay-Of-
ficer ; for the Rubrick does exprefly declare, That nothing all be
proclaimed or publiſhed in the Church, during the Time of Divine
Service, but by the Miniſters nor by him any Thing but what is pre-
ſcribed in the Rules of this Books or enjoined by the King, or by the Johnſon's D:-
Ordinary of the Places
fence.
I
X
Set. I.
CH A P. XXXVI
Spiritual Perſonis not to take Farms, or buy
or ſell for Lucre or Profit, &c.
T
HAT a. Miniſter máy yet the better perform his Duty, viz. 21 H.8. c. iz.
without Diſtraction (as far as may be), it hath been enacted as
Spiritual
followeth: fol the more quiet and virtuous increaſe and mainte- Perſons nor
nance of Divine Service, the Preaching and Teaching the wozd of to take
Farms, c.
God, with godly and good Erample giving, the better Diſcharge of
Curates, the maintenance of Hoſpitality, the Relief of poor people,
the Decreaſe of Devotion, and good Dpinion of the Lay-fee towaró
the Spiritual Perſons 3 Be it enacted, oldained and etabliſhed by the
King our Sovereign Lozd, with the Aftent of the Lods Spiritual and
Temporal, and the Commons in this preſent Parliament aſſembled;
and by authority of the ſame, That no Spiritual Perſons, Secular
OP Regular, of what Degree Coever he od they be, thail from bence.
fožth take to farm to himſelf, od to any perſon od Perſons to his
Ure, of the Leaſe 02 Grant of the king our Sovereign Loid, 602 of
any other perſon of Perſons, by Letters Patents, Indentnres, Wirt-
tings, ty WOD oz otherwiſe, by any manner of peans, any at
H109S, Lands, Cenements, of other Hereditaments for Term of Life,
fo2 Terin of years, ou at Will, upou Pain to forfeit Ten Pound foj
every month that be, or any other to his Ale, fhall occtipy any ſuch
Farni, by reaſon of any fuch Leaſe o? Orant hereafter to be made ; the
one half of which Fozfeiture to be to the King our Sovereign Lold,
and the other half thereof to every ſuch Perſon that will ſue fou the
Time by Duiginal Turit, Bill, oz Plaint of Debt, ol by any Jufo?.
Hiation in any of the King's Courts, in which gaion and Suit 110
Wage
358
The Clergy-Man's Law: Or, Chap. XXXV I.
To alieu
farms, &c. Tager of Law ſhall be admitted foz the Defendant, no2 any Elloin
02 Protexion allowed.
Sect. 2. and be it allo enacted by the Authority aforeſaid, That al !
what they
and every ſuch Spiritual Perfon 02 Perſons which now have, od. OCCI:
haye.
py in farm by themſelves, oz by any other to their Ule, any Danois,
Lands, Tenements, of hereditaments of the Leale 02 Giant of the
King our Sovereign Loid, u any other perſon of Perſons, fou Terni
of Life, oz for years, og at Will, by any Writing or otherwiſe, 02
that now have any annual Rents, Od other annual Advantage of Pros
fit, by Dccañon 02 Colour of any ſuch Leale 02 Farm, ſhall clearly
bargain, ſell, give od grant away on this Side the feaſt of St. Mi-
chael the archangel nert coming, to any ſuch Lay-Perſon of Perſons,
as they will at their own Nominations and appointment, all ſuch
Leale, Term, Intereſt, and Profit, as any ſuch Spiritual perfon, 02
any other to his Gle, now hath of have, in od by reaſon of any ſuch
Farm: So that in no wile any ſuch Spiritual Perſon of Perſons, at
any Cime after the Came Featt, by themſelves, of any other to their
Uče, by any manner of means, fraud, op Male Engine, Thall have,
ule oz occupy in Farm any manops, Lands, Tenements. 02 beredi
.
taments of the Demiſe, Leaſe oz Ozant of any perſon 02 Perſons
heretofoze made, 02 hereafter to be made, to themſelves, og to any
other to their uſes : 102 from the ſaid feaſt fhall take any annual
Rent, 02 other annual advantage 02 Dzofit, by Dccalion 02 Colour of
any ſuch Leale 02 Farm by any manner of means, upon Pain to
fozfeit for every month co occupying any ſuch Farm, at any Time
after the ſaid feaſt, contrary to this pzelent Act. Ten Pound, and
upon Pain to fozfeit ten Times as inuch as any luch Spiritual Per.
ſoli, 02 any to his Ule, hall take in any annual Rent, advantage,
02 Profit, by Dccaſion or Colour of any ſuch Leale, at any Time af:
ter the ſaid Feaft; the one half of which fojfeitures to be to the
King cur Sovereign Lold, and the other half to him that will que
for the ſame by Driginal Tairit, Bill, oj Plaint of Debt, op by J11-
fozmation, in any of the King's Courts, in which action og Suit no
Wiager of Law thall be admitted for the Defendant, nor any Elloin
0: Plotection allowed.
Sect. 3. and be it alſo enacted, That all ſuch Leares made, og
them void. Hereafter to be made unto any fuch Spiritual Perſon o2 Perſons, o?
to any other to their Uſe, foz Term of Life, Cerm of Years, og at
Will, of any panous, Lands, Tenements, 02 Hereditaments,
whereof they 02 any of them fhall take any profit, 02 Meddling by
themſelves, ou by any to their Uſe, after the ſaid Feaſt of Saint Mi-
chael, by Colour of any ſuch Leale op Geant, and not by them bar-
gained, granted and ſold away befove the ſaid Feaff, as is befoze lis
mited, fhall from thencefouth be utterly void and of none Effea, as
well againt the Lealoz 02 Lealous, OzantoO! Glantos, their
Heirs and Aligns, and againſt every of them, as againſt the Leales
0. Learees, and their Erecutoys and aligns, and every of thein.
Sect. 4. Provided alway, That this preſent act ſhall not extend
Except Tem-
poralities of to any Spiritual Perſon 0, Perſons in and for taking to farm any
Biſhopricks, Temporalities during the Time of Vacations of any the Archbi:
Sec. during thop icks, Bifhoppicks, Abbeys, priojies, or other Collegiate, Ca-
thebzal 02 Conventual Churches ; noi tó any Spiritual Perſon o!
Perſons that dhall tender ol make any traverle upon any Dffices o!
S ftice concerning bis of their Freehoid.
Sect. $.
.
Lcaſcs to
2
mesta
Chap. XXXVI. The Complete incumbent.
359
cre.
Sect. s. and be it alſo enated by the authority afuwlaid, Chat Mo Farina *****
spiritual perſon a: Perfons, Secuddet Qi Regudar, of wiat Efate 02 Against buy.
Degree foever they be, thall from hencefa:tb by himſelf, na: by aliy ing and fel
other for him, 1102 to his Uſe, bargain and buy to ſell again for an ling for Lua
Lucre, Wain, od profit, in any markets, fairs, or other Places,
any manner of Cattel, COM, Lead, Tin, hides, Leather, Callow,
Fiſ), Wool, Woad, op any manner of Ufæual oz merchandize, what
Kind foever they be of, upon pain to fokkeit treble the Aalut of every
Thing by them, od by any to their Ufe, bargained and bought to left
again, contrary to this Act. And every ſuch Bargain and Contract
hereafter to be made by them, az by any ta thetr ale, contrary to
this act, ſhall be utterly void, and of none Effet. and the one bute
of every ſuch forfeiture to be to the king our Sovereign Lazd, and
the other ball to him that will ſue foz the ſame ty Diginal Writ of
Debt, Bill, Plaint, O2 Information, in any of the King's Caurts,
in which ation of Suit no Wlager of Law far the Defendant fall be
admitted, nou any Efroin 1102 Protexion allowed.
Sect. 6. Provided alipay, That if any ſuch Spiritual Perſon or Provire for
Perſons mall happen hereafter, without fraud ai Covin, to buy Herries and
Holes, Mares, od Moules, to the only Jntent to occupy for himſelf Apparch, co
od his Servants, to ride to and fro upon his neceffary Bubnelg, og
any other Chatteis of Goods to the only Intent and purpoſe at the
Buying thereof to be employed and put in and about his neceſſary
Apparel od his own houſe, Od of his perſon and Servants, az int,
for and about the only Dccupying, qanuring, 02 Tillage of his own
Glebe oz Demean Lands, annered to his Church, oz foy the neceſſary
Erpences of his own youfhold-keeping : And after the buying of
any ſuch volles, Cattel 02 Goods, ol Ererciſe of them, oz any of
them, happenech to miflike any of them, that they ſhould not be goad,
profitable, no convenient for any of the purpoſes abovelain for the
which they were bought, that then every ſuch Spiritual perſon od
Perſons may lawfully bargain, and put away fuch Things to by bim
bought, without fraud ou Covin, fox any of the purpoſes abouelaid,
at his pleaſure and advantage ; this Nå, oz any Ching therein con-
tained notwithſtanding.
Sect. 7. Provided alway, That all Abbots, Prios, abbettes, Pu Proviſa for
olelles, provofts, Preſidents, Patters of Colleges and Galpitals, Colleges, no
and all other Spiritual Governours and Goderneđes of any Spiritual
Monaſteries, 02 poules of Beligion, by what Qame od Names (Q:
ever they be called, having qanqs, Lands, Tenements and peres
ditaments, and other yearly profits, in the Right of theię se ona
#eries, o houſes, of the yearly Walue of Eight hundred marks 02 -
under, and not above, may uſe and occupy as much and as many of
their Demean Lands, fee Farms, and farms, to their inot advan-
tage, commodity and profit, to and fou the only paintenance of
their houſes and Hoſpitalities, in as ample and large manner as
they, od any of them, of their predeceffois, op the Þzedecellious of
any of themi, at any Time by the space of Dne hundred Years late
paſt, befože the making of this Act, have done, uſed and occupied ;
any Ching in this preſent act to the contrary notwithſtanding.
& c. 8. Provided alle, That every other spiritual Perſoļi ar per: Proviſo for
Cons not having fufficient Glebe 02 Demean Lands in their own having fuf-
hands, in the Right of their Churches, Ponaderies, and Houſes ficientGlobe,
for Paſturage of Cattel, oz for increaſe of Com, to and for the 011- yo,
ly
.
360 The Clergy-Man's Law: Or, Chap. XXXVI.
any
None bene
ficed with
carage.
Farms, &c. 10 Erpences of thetr Houtholds, oz foy their Carriages o? Journeys,
may take in farm other Lands, and buy and ſell Corn and Cattel
for the only anurance, Tillage and Paſturage of ſuch Farmg, co
that the Increaſe thereof be always employed and put to and for the
only Erpences in their youtholds and Hoſpitalities, and not in
wilë to buy and ſell again for any other commodity, Lucre, olad
vantage, any Com od Cattel renewing, coming 02 growing in and
upon any ſuch Farm, O2 otherwiſe, but only the Remain and Dvere
plus above their Erpences of their houſholds, if any ſuch thali bap.
pen to the Breed and Increaſe thereof, without Fraud oz Covin ;
any Thing in the Law to this preſent nå to the contrary bereof not.
withâanding.
See Seet. 9,
Sect. 30. and be it further enađed by the authority aforeſaid, That
10,!! of this no Spiritual Derſon, Secular 02 Regular, beneficed with Cure, as
Ad in cloz. is afoze-rehearſed, from the Feaſt of Saint Michael the archangel
Sections alibi nert coming, by Authority of any manner, Licenſe, Diſpenſation, 02
1. e. Ch. 4. 37. otherwiſe, ſhall take any particular Stipend 02 Salary to ling foz
any Soul, 1102 have, od occupy by himſelf, 02 by any other to his Ure,
Cure to Farm any Parlonage 02 Vicarage in Farm, of the Leaſe od Grant of any
nage Por Vi- Perſon od Perſons, no take any Profit 02 Rent out of any ſuch
Farm, upon pain to forfeit forty Shillings for every ſuch Week
that he, oy any to bis Are, thall occupy, 02 have any ſuch Stipend
02 Farm contrary to this preſent aã, and upon Pain to loſe Tent
Times the Walue of ſuch profit 02 Rent as he ſhall take out of any
ſuch farm after the ſaid Feaſt. The one half of which forfeitures
to be to the King our Sovereign Lold, and the other moiety to him
that will ſue for the ſame by Duiginal Writ, Bill, Plaint of Debt,
02 by Jinformation in any of the King's Courts, in which Suit and
Action no Ttlager of Law ſhall be admitted foz the Defendant, 1102
any Efroin oz Piotecion allowed.
Dignities,
Sect. 31. Provided alway, That no Deanry, Archdeaconry, Chan.
noť Bene- cellofhip, Treaſurerſhip, Chanterſhip, 02 Preberid, in any Cathedral
ol Collegiate Church, 1102 Parſonage that bath a Wicar indued (ell-
dowed) nor any Benefice perpetually appropriate, be taken od compres
hended under the fame of Benefice having Cure of Souls, in any
article afoje ſpecified.
Not to keep Sect. 32. Provided allo, and be it enaged by the authority afode.
a Tanhouſe fato, That no Spiritual perſon of Perſons Regular, 02 Secular, of
what Eſtate, Degree, od Condition foever he be, od they be, from the
iſt of April nert coming, bave, ule, od keep, by him, od themſelves,
od by any perſon of Perſons to his of their are of Commodity, any
manner of Canhouſe 02 Tanhouſes, to be uſed ol occupied to his oz
their own Ule od Behoof, noj have, ule, od keep any manner of
Brewhoule 02 Brewhouſes, to any other Ule, Jutent 02 Behoof,
than only to be ſpent and occupied in his od their own houſes, upon
Pain to fozfeit for every month (o ulng and occupying any of the
Taid poiſteries ol Dccupations 10 l. one moiety to the king, and the
other to him that will ſue for the ſame by Driginal Writ, Bill, Plaint
of Debt, 02 Information, in any of the King's Courts, and no Tua-
ger of Law, 1102 Elloin, 02 Protection to be therein allowed.
Sect. 33. Is a Povilo, That the tuidows of Noblemen marrying
again under their Degree, may yet retain Chaplains as before, and
Clicb Chaplains have a Licence to hold two Benefices. Vide Chap.
2 and 3.
4
fices with
Cure.
or Brew-
houſe.
Sect. 34.
Chap. XXXVI. The Complete Incumbent.
361
:
dwell in.
dence.
Sect. 34. Provided always, That every Spiritual perſon of Per: Farms, etc.
cons having Lands, Tenements, op other Polledions in the
Right May keep
of their houſes, above the yearly Walue of Eight hundred Marks, fufficient of
may keep and retain in their Occupation and Manurance, as much of their own
their faid Lands and Tenements, and other poflellions, as ſhall be maintain
neceſſary and fufficient for Paſturage of their Cattel, and foz Til: their Houſe-
lage of Con, to be employed and (pent foż the only Maintenance, holds, etc.
Suftentation and keeping of his oy their Þoulholds and hoſpitalities,
without fraud 02 Covin ; any Thing in this preſent nå to the cons
trary thereof notwithſtanding.
Sect
. 35. Provided alway, Chat it may be lawful to every Spiri- Or take a
tual Perlon 02 perſons to take in farm any Meles, Mantions, 02 Chard and
Dwelling houſes, having but only Duchards oj Gardens in any City, Garden to
Borough, and Town, for their own habitation bi Dwelling ; any
Thing in this då to the contrary not with&anding. So that no pec-
con ſpiritual, other than be above provided fod, fotheir Non-reſidence,
have any Liberty of Non-reüdence by Colour of this provilo. Stat. Non-reli-
21 8. c. 13.
Note the Reaſon and Policy of enacting the above Statute is well
explained by Hobart in the Caſe of Colt and Glover. pag. 157, to
which I refer the Reader.
In an Action or Information brought upon this Statute againſt a Pleading to
Parfon for taking Farms, it is a good Plea for the Defendant to plead, this Statute.
Non habuit ſeu tenuit ad firmam contra formam ſtatuti ; and the De-
fendant may upon fuch Plea give in Evidence, that the Farm was
for the Maintenance of his Houſe, &c. according to the Proviſo in Vide 2 Bxlx.
the Statute; by Fitz and Shelley. But Baldwin Chief Juſtice contra, 14.
that he ought to plead that Matter ſpecially, elſe cannot give it in
Evidence. Bro. Action ſur le ſtatute 3. Savil 32. And the Writ
grounded on this Statute ought to be Qui tam for the King and Par-
ty, &c. therefore a Writ being brought which demanded the whole
Penalty for the Party, was ruled not to be good. And note the Sta-
tute need not to be mentioned in the Writ. Bro. Attion ſur le fta-
And ſee the Caſe of Hitchcock and Thurland. Trin. 27 El. B. R. 3 Leon. 122..
In an Action on the faid Statute it was held, That if any ſuch Leaſe
be made (ut ſupra Sect. 1.) at this Day, the Leaſe is not void. But
the Words Such Leaſes, in Set. 3, extend only to ſuch Leaſes, made
before the Feaſt of St. Michael (as is therein mentioned) and which
had not been alicned before the ſaid Feaſt; and 'tis there faid to have
been formerly ſo reſolved in one Underwood's Cafe.
Note (as to Sect. 31, Supra) the Opinion of Hobart in the Caſe of Hob. 157.
Colt and Glover, That Biſhopricks are not Benefices within this Law;
ſo that if a Parſon takes a Biſhoprick, it avoids not his Benefice by
Force of this Statute, but by the antient Common Law it is void,
as is holden 11 H. 4. 60. But notwithſtanding Hobart's Opinion, it
appears clearly in the ſaid Cafe, 11 H. 4, That a Biſhoprick was then
admitted to be a Benefice, the Words of Thirning and the other
Judges being Quant un home Benefice eſt cree un Éveſque le primer Cod. 179.
Jerra Void, &c. Vide Chap. 1. and Chap. 2.
tute 4
M mm
| C H A P.
362 The Clergy-Man's Law: Or, Chap. XXXVII
.
Heldence,
c.
CH A P. XXXVII.
Of Reſidence and Non-reſidence.
pro-
A
Ś the Law doth oblige every beneficed Perſon to attend the Cure,
and perform the Duty of the Incumbent thereof, and doth
vide for the puniſhing of all Perſons diſturbing him doing the fame,
or breaking the Peace of the Church, and doth reſtrain him from di
ſtracting himſelf unneceſſarily with other Affairs; fo for the better
and more conſtant Performance of his Duty, Reſidence upon his Be-
21 H.8.c. 13. nefice by Law is enjoined him, for it hath been enacted, That as well
Set 26, a- every spiritual Perſon now being promoted to any archdeaconry,
feltdence. Deanry, 04 Dignity in any monaſtery of Cathedral Church, 02 other
Church conventual od collegiate, od being beneficed with any Parlo
nage 02 Aicarage, as all and every Spiritual perſon and perſons
which hereafter ſhall be pzomoted to any of the ſaid Dignities 02
Benefices with any Parlonage 02 Gicarage, from the feat of St.
Michael the Archangel neft coming, thall be perſonally reſident, and
abiding in, at, and upon his ſaid Dignity, Prebend of Benefice, or at
one of them at the leaſt. And in caſe that any ſuch Spiritual per:
con, at any Time after the Caio Feaſt, keep not reſident at one of his
Caid Dignities, Piebends 02 Benefices, as is afozelaid, but abſent
himſelf wilfully by the space of one Donth together, 02 by the
Space of two gonths, to be accompted at ſeveral Times in any one
Year, and make his Belidence and abiding in any other places by
Cuch Time, that then be thall fo feit for every ſuch Default Teil
Pounds Sterling ; the one half thereof to the King our Sovereign
Lord, and the other Half of the Came to the Party that will que faz
the ſame in any of the King's Courts by ociginal Writ of Debt,
Bill, Plaint of Information : In which Action and Suit, the Des
fendant ſhall not wage his Law, nor have any Elloin 02 Proteaton
allowed.
Forfeiture and if any Perfon 02 Perſons procure od obtain at the Court of
for procuring Rome, or elſewhere, any manner of Licence 01 Diſpenſation, to
Licence, Soc.
be non reſident at their fato Dignities, Prebend od Benefices, contra:
ry to this an, that then every ſuch perſon of perſons putting int
Érecution any fucb Diſpenſation of Licence for himſelf, from the ſaid
firſt Day of April, in the year of our Lold Bod, M. D. and XXX.
ſhall run and incur the Penalty, Damage and Pain of Twenty
Pounds Sterling, foz every Time ſo doing, to be forfeited and re-
covered, as is abovelaid, and ſuch Licence oz Diſpenſation ſo pra-
cured, 02 to be put in Erecution, to be void, and of none Effect.
Provifo for Provided always, That this ac of Non-reüdence fhall not in any
wife eftend, ne be prejudicial to any ſuch Spiritual Perſon as fhall
the King's chance to be in the king's Service beyond the Dea, 1102 to any Pets
Service, Bore
con 02 Perſons going to any Pilgrimage od holy place beyond the
Dea, during the Time that they fhall ſo be in the King's Service, od
in the Pilgrimages going and returning homie ; Nor to any Scholar
02 Scholars being converſant and abiding for Study, without Fraud
02 Covin, at any Aniverſity within this Realm or without, 1102 to
any
3
1
Perſons in
i.
ܚܝܰܝ
Doc.
attending ano abiding in the King 5. 02 Ducens inofi Donourable
Chap. XXXVII. The Complete Incumbent. 36.3
any of the Chaplains of the King's of Queeil's, daily o! quartérig
. Beforw:r,
Douilholds ; 1102 to any of the Chaplaius of the Prince of Princeſs,
o any of the King's. 02 Ducen's; Childkeli, Bjethren od. Sitters, at
tending daily in their Honourable Houtholds, durug ſo long as they
thall attend in any of their caid youſholds; nod to any Chaplain of
any archbiſhop of Biſhop, or of any Spiritual oz. Temporal Lords of
the Parlianent, daily attending, abiding and ſemaining in any of
their boriograble Bouchplos ; nou to any. Chaplain of any. Dutchels ;
Qarqueſs, Counteſs, Wiſcountels, od Baroncſs, attending daily a130
abiding in any of their honourable pouholds a 1102 to any Chaplawi
of the Lord Chancellos. on Treaſurer of England, the King's Cham
berlain, 02 Steward of bis houdhold fog tije Cime being, the Trea
fireg and Controlloj of the King's mot honourable Douthold foż the
Time being, attending: Daily, iu any of their honourable v.cufholds ;
902 to any Cbgplait of any af the Knights of the bonourable Dider
of the Garter; 02 of the Chief Juſtice of the King's. BenC), quar:
den of the parts, of allo of the Mattee of the Rolls; 102 to any
Chaplain of the King's Secretaty, and Dean of the Chapel, or im.
ner foz the Cime being, Daily attending and dwelling in any, thcic
pouflyolds, during the time that any."Tuch. Chaplain 92 Chaplains
dalı abide and dwell, without fraud ox Coviu, in aup of the ſaio
honourable poutholde, n102 to the maſter of the Wolls, of Dean of
the meches, 102 to ana Chancello:
02 Conwilfaty of any arçebidor
02 Bifhop 3 1102 to, as many of the Twelus Paters of the Chaucery
axd Twelve advocates of the Arches, as " be 02 bereaftet mhall be
Spiritual moeit, quring la long time as they hall occupy their fajd
Rooms and Dimcees; 102 to muy fuel Spiritual Perfons, as hall bap
pen by Injunâion of the Lao Chancelloz, of the King's Council
, te
be bound to any daily Appearance and attendance to anſwer to the
Lam, during the Cime of fuch Injunction,
Provided allo, that it hball be lawful to the King's bigbuels to give. King's Chap-
Licence to every el bis own Chaplans fol nou telidence upon theft
Benefices; any thing in this preſent $contained to the contratg
uotwieblanding,
Plqvided always, That every Dutchels, Maricbignets, CounteisChaplains of
Baroneſs, Wibows, which have taken, a that bereafter thall take a Dutcheſs,
any Husbands under the Degree of a Baren, ijay, take fuch jqumber
of Chaplains, as is above limited to them beinig ruidows; and that
every ſuch chaplain may purebale Licence to hnué aqia takë fuch Num
ber of Benefices with Free of Soul, and have like Liberty ak pon
reŪdence, in manner and form as they miglit þave pone if their caid
Ladies and migreffes had kept themſelves Wingus ; any. Ching in
this pzecent Act contained to the contrary iiot witbaandiiis. Stat. 21
And afterwards it was enaeted as folloiveth, Where in the Parlia 25 81. 8. c. 16.
ment holden at Weſtminſter in the Twenty firft Pear of the Reign of
olir Sovereign Lod Hing Henry the Eighti), it was among other
Things opdained and provided, that certain langurable Peſſons, as
well Spiritual as Tempomat, hall have Cbaplaing beneficed with Cure,
to ſerve them in their bonourable houſes, which Chaplains ſhall not
incur the Danger of any Penalty oi Forfeiture made or declared in
the ſame Parliament faz spon reudenice upon their Caio Benefices, oi
foz obtaining Licences of Diſpenſations of Pluralities. In the
M m m 2
which)
laips.
Sc.
H. 8. cap. 13.
364 The Clergy-Man's Law: Or, Chap. XXXVII.
C.
for that they liament, it was eſtabliſhed, oldained and eliadted, That as well every
Reſidence, which aa, no Provigion was made for any of the King's Illages of
his High Courts, commonly called the king's Bench and the Coni
mon Place, ercept only for the Chief Judge of the King's Bench,
1102 for the Chancellor, nor the Chief Baron of the King's Erchequer,
no, foz any other infcrioPerſons, being of the King s moſt honour
able Council, as by the ſaid act may appear.
Chaplains of Wherefore it is odained and enacted by authority of this preſent
Judges, &c. Parliament, That as well every Judge of the ſaid High Courts,
and every of the Chancello and Chief Baron of the ſaid Erchequer,
the King's Generat attorney, and General Sollicito, which for the
Time is, be, oz fhall be, ſtall and may from hencefo{th at his Liberty
retain and have angularly to every of them in his houſe, od attelidant
to his perſon, one Chaplain having one Benefice with Cure of Souls,
which may be abſent from his ſaid Benefice, and not reſident upon
the ſame : The Caid statute made in the ſaid Dne and Twentieth
Pear, oz any other Statute, Ac 0? Didinance made to the contrary
in any wiſe notwithſtanding. Stat. 25 H. 8. c. 16.
And it is farther enacted, whereas in the Parliament begun at Lon-
don on the Third Day of November, in the Twenty firſt year of
the Age of the Reign of our Sovereign Lojd King Henry the Eighth, and from
40 Years to thence adjourned and prorogued to the Palace of Weſtminſter, the
Seventeeth Day of December then neft enſuing, amongſt other good
Acts and Didinances then and there by the authority of the laid Par:
25 H. 8. cap.
13. For Per-
fons above
and not to
be excuſed
arc Students
in the Uni- Spiritual Perſon, then being promoted to any archdeaconry, Deanry
verſities, &ec. 02 Dignity in any monaſtery of Cathedżal Church, od other Church
conventual o collegial, or being beneficed with any Parlonage of
Cicarage, as all and every Spiritual Perſon and Perſons, which
dould after the Feaſt of St. Michael the Archangel, which was in
the aforeſaid Dne and twentieth Year of the Reign of our Sovereign
Lod King Henry the Eighth, be promoted to any of the ſaid Dignis
ties o2 Benefices with any Parlonage of Vicarage, ſhould from the
ſaid Feaſt of St. Michael the Archangel, be perſonally reſident and
abiding at and upon his ſaid Dignity, Prebend Ol Benefice, og at one
of them at the leaſt. And in caſe any ſuch Spiritual Derſon at any
Time after the ſaid Feaſt, kept not reüdence at one of his caid Digs
nities, Prebend od Benefices (as is afojelaid) but abſent himſelf wil
.
fully by the Space of one month together, 02 by the space of two
Months, to be accounted at ſeveral Times in any one year, and
make his Reſidence and abiding in any other Places by ſuch time,
that then he thall fozfeit fou every ſuch Default Ten pounds Sterling,
as in the ſame act moje plainly doth appear. In which gx, among
other Proviſions contained and ſpecified in the ſame, it was provided,
That the ſaid ad of Non-relidence ſhould not in any wiſe ertend, ne
be prejudicial to any Scholar of Scholars, being converſant and abiding
fox Study withqut Fraud 02 Covin at any Univerſity within this
Realm, od without, as by the ſame provilion doth alſo appear mode at
large. Sithence the making of which food act and Statute, divers
and and many perſons being beneficed with Cure of Souls (as is a:
foucfaid) and being not apt to Study by reaſon of their age of other:
wile, ne never intending before the making of the ſaid sa to travel
in ftudy within any the Caid Univerſities for the increaſe of Learli.
ing, but rather minding and intending their own Cale, üngular Lucre
and Pleaſtıre, by the ſame proviſion colourabiy to defraud the came
Food
Chap. XXXVII. The Complete Incumbent.
365
Boris
1000 Statute and Didinance, du daily and conimonly refokt tilld re: Rilidence,
pair to the ſaid Univerſities of Oxford and Cambridge, and to either
of them, where they, under the ſaid Pretence and Colour of Study, do
continue and abide, living diſolutely, nothing profiting themſelves by
Study at all in Learning, but conſume the Time in Jdleniers, and in
other paſtimes and infolent Pleaſures, giving Dccaſion and evil Er-
ample thereby to other young men and Students within the ſaid Uni-
verſities, little of nothilig regarding their Cure and Charge of Souls,
contrary to the minds and Intent of the Dakers of the afojelaio
rood Statute and Cįdinance. And alſo, divers and many old bene:
ticed men have and do continually reinain there, never ererciling 1102
padiſing their Learning to the Eraniple of Cirille and Maintenance
of the Commonwealth, in Diſcharge of their Conſcience, accoding
to their Duty, having nevertheleſs, and occupying ſuch Rooms and
Commodities as were inftituted and oldained fo the maintenance and
Relief of pool Scholars, to the great pindiance and Detriment ce
the ſame.
Be it therefore enacted by the King our Sovereign Loid, with the
attent of the Lords Spiritual and Temporal, and the Commons in
this preſent Parliament affembled, That all and linguiar Spiritual
Perſon and perſons, which 110w be, o, hereafter ſhall be to any Bez
nefice O2 Benefices promoted as is aforeſaid, being above the age of
Fojty Years, (the Chancellor, Uice Chancello, Commiffary of the Perſóns ex-
ſaid Univerſities, or any of them, Wardens, Deans, Povofts, Dzes cepted.
üdents, Redois, Matters, Principals and other yead Rulers of
Colleges, halls and other houſes of Places Copozate within the
ſaid Univerſities, 02 any of them, Dodols of the Chair, Readers of
Divinity in the Common Schools of Divinity in any of the ſaid
Univerſities only ercepted) ſhall be reſident and abiding at, and lipoii
one of their Caid Benefices, accoiding to the Jutent and true ageans
ing of the ſaid former 8&, upon ſuch pain and Penalties as be colts
tained in the ſaid fommer att made and appointed for ſuch beneficed
Perſons for their Non-reſidence. And that none of the ſaid beneficed
Perſons being above the age aforeſaid, ercept befole ercepted, fall
from henceforth be ercuſed of their Non-reſidence upon the Caid be:
nefices, fou that they be Students od reliant within the ſaid Univer:
ſities, oz any of them; any Proviſo, oj any other Claule oz Sentence
ſpecified of contained in the ſaid fozmer Act of 101-relidence, od any
other Thing od Things to the contrary hereof in any wile notwith:
ftandilig.
and over this, be it enacted by the Authority aforeſaid, That all and Perſons un
bingular (uch Beneficed Perſons being under the age of forty years, der 40 Years
reliant and abiding within the ſaid Univerſities, or any of them, thall of Age, abi-
not enjoy the Privilege and Liberty of non-refidence, contained ill Unscrlities.
the Provilo of the paid former Act, made fod the Scholars of the ſaid
Univerſities, 02 any of them, unleſs he or they be preſent at the 02:
dinary Ledure and Lectures, as will at home in their houſes, as in
the coniimoni Schjøl 02 Schools, and in their proper perſon keep so.
philnis, Poblems, Difputations and other Exerciſes of Learning,
and be opponent and reſpondent in the came, according to the DI:
dinances and Statutes of either of the ſaid Univerſities, where he
02 they ſhall be ſo abiding or reliant ; any Ehing contained in the ſaid
Proviro oz former Aa to the contrary notwithſtanding.
Pa:
2
.ع
Proviļo for
Councellors
and Officers
Err.
: (
366 The Clergy-Man's Law : Or, Chap. XXXVII.
1 Cocuir,
Provided alway, That this Aa Mall begin to take Eficứ at the
Featt of St. Michael the Archangel. ruft coming, and not be
touc.
Provided alway, That this Act, 102 any Thing therein contained;
Readers of mhall ertend to any perſon o? Perſons, which now is, 0? Hereafter
és urus, Esc. fhall be Readers of any publick or common Lexure in Divinity, Law
Civil, Phylick, Philofophy, Humanity, or of any of the Liberal Sci-
ENCES, O2 publick 03-common Interpreters ol Teachers of the Hebrew
Tongue, Caldy Ol Üzeeli, in whatſoever College of Place of any of
the mid Univerſities the ſaid perſons foz the Time being Ball read
the ſaid common 02 publick Ledures: 1202 yet to any perſon og Per-
fons, after op: above the Age of Forty Years, which üall reſort to
any of the ſaid Univerſities, to p?OCRED Dođos in Divinity, Law
Civil, od Phylick, foz the Time of their laid Proceedings, and ere.
cuting of Tuch Sermond, Difputations 02 Lectures, which they be
bound by the Statutes of the Univerſities there to do fod the faid
Degrees lo obtained. Stat. 28 H. 8. c. 14.
33 H. 8. c. 28.
And after it was enacted, Where in the Parliament holden, at Weſt-
Chaplains of minſter, in the Dne and twentieth Pear of your molt gracious Reign,
it was among other Things ordained and provided, That certain
of Courts, bonourable Perſons, and other of your highneſs Councellors, and
Dfficers, as well Spiritual as Teinpojal, thould and might have
Chaplains beneficed with Cure, to ſerve and attend upon them in
their houſes, which Chaplains thall not incur the Dauget of any per
nalty 02 Forfeiture made od declared in the Came Parliament, fog
Don reſidence upon their caid Benefices, 02 for obtaining Licences oj
Diſpenſations of Pluralities, in which act 110 Plovilon is made for
any the Head Dfficers of your braces leveral Courts of your Dutchy
of Lancaſter, the Courts of Augmentations of the Revenues of
pour Highneſs Crown, the firt: fruits and Tenths, the matter of
your Dajeſty's Tiards and Liveries, the general Surveyors of yotig
Hiace's Lands, and other your Grace's Courts.
In Conſideration whereof, it may pleaſe your majelly, That it
chy of Lan- may be enacted by your þighneſs, with the aftent of the Lords Spi
caſter, égoc.
ritual and Temporal, and the Commons in this preſent Parliament
aſſembled, and by the Authority of the lame, Chat the Chancellor of
the ſaid Court of the Dutchy of Lancaſter, the Chancellor of you
þighneſs Court of Augmentations, the Chancellor of your Grace's
Courts of Firſt: fruits and Tenths, the mafler of your þighneſs
Ttlards and Liveries, and every of your Grace's general Surveyous
of your Highneſs Lands, the Treaſurer of your Grace's Chamber,
the Treaſurer of your Highneſs Court of Augmentations, aụd the
Ø200m of your Grace's Stole, and every of them for the Time be
ing, fhall and may retain fingularly to every of them in his poule,
od attendant upon his perſoni, One Chaplaini having one Benefice
with Cure of Souls, which may be abſent from the ſaid Benefice,
and 12013:reſident upon the ſame ; the ſaid statute made in the ſaid
Dne and twentieth Pear of your molt gracious Beigu, oz any otheç
Statute, AX od Didinauce made to the contrary in any wiſe not with.
ftanding.
Provided alway, and be it enaäed by the authority a foželiid, That
ir to their dwelling with any the Dlucers afoje named, fhall Perſonally repair
Cure, Eric
two
Chancellor
of the Dut-".
Times for
duch Chap
2
Chap. XXXVII. The Completė Incumbent:
367
two Times in every Pear at the leaſt to his ſaid Benefice and Cure, lieſidence,
and there to tarry and abide by the ſpace of Eight Days, at every
luch Time at the leaſt, to vidit and intru& his Caio Cure, upon the
Pain to fo{feit for every Time fo failing, fdzty Shillings; the one
gzoiety thereof to the king our Sovereign Lord, the other to ſuch
as will ſue for the ſame by adion of Debt, Bill, Plaint or Infoj.
mation in any of the King's Courts of Record, in which Suit na
Eloin, Protection o2 Wager of Law Thall be allowed. Stat. 33 H. 8.
cap. 28.
By the Statute of thë 21 H. 8. C. 13;, every Spiritual Perſon qua- A Goſpeller
lified to hold two Benefices, is to be reſident upon one of his Digni- of Vicar refi-
ties, Prebends or Benefices, Gc. and if he be refident upon one of thedral, nor
them, it fuffices; but if a Man be choſen Goſpeller in a Cathedral thereby dif-
Church, and be there reſident, this will not be to the Diſcharge of charged of
his Reſidence upon any Dignity, or Benefice with Cure that he ſhall Cure.
poſſeſs therewith, as was held by Popham and Clinch. So if a Vicar
in a Cathedral Church hath a Benefice with Cure, he ought to be re-
ſident upon it, for he is not properly a Vicar, although he be ſo called,
he having neither Vicarage nor Cure of Souls, Paſch. 41 Eliz. B. R.
Broughton v. Gouſley: 3 Croke 663, but the Caufe was adjourned,
the other Judges being abſent, and after compounded. 27 H. 8. 10.
Broke Action ſur le Stat. 2 per Cur. 27 H. 8. 10. Broke, ſurmiſe and
ſuggeſtion 24. And it is ſaid, that to be reſident on a Prebend, is a
fufficient Reſidence, and thereby that a Prebendary is excuſed from
being reſident on a Benefice with Cure. 27 H. 8. 10. Broke Action Sur
le Stat. 2. 27 H. 8. Broke Surmiſes and Suggeſtion 24. So in Acton's
Caſe. Hill
. 45 Eliz. C. B. 4 Coke 119. If a Baron hath three Chap-
lains, and each of them hath two Benefices, and afterwards the Ba-
ron dieth, they ſhall enjoy their Benefices with Cure, if lawfully ſet-
tled in them before; but although each of them be reſident, and
dwelling upon one of their reſpective Benefices, yet they shall be pu-
niſhed for not being reſident upon the other, as was Parſon Boyton's
Cafe. Coke 4. fol. 119, and they ought to have of the King a Non ob-
Stante in the Diſpenſations for their Pluralitics. See Mich. 4 Car. B. R.
Green2 v. Guy i Croke 146.
As to which Matter, I conceive, that although by the Statute of Q. If he that
the 21 H. 8. c. 13, there is no expreſs Proviſion made to excuſe any Chaplain be-
Perſon from being reſident upon any of his Benefices, by having been ing duly re-
a Chaplain to any Perſon, after his Attendance is determined, not to fident upon
excuſe other Perſons enabled thereby to hold more than one Benefice one of his
by Diſpenſation ; yet he that is duly qualified, and diſpenſed with to puniſhable.
hold more than one Benefice, if he be duly reſident upon any one of
his Dignities, or Benefices with Cure, is not puniſhable by the faid
Act; becauſe this Act doth only require, that he ſhall be reſident in,
at and upon his Dignity, or Benefice, or at one of them at the leaſt'
;
ſuch Interpretation is to be made of that Act as ſhall make the fame
practicable, that is, that the Liberty and Benefit given thereby to Per-
fons qualified by Birth, Degree, or Service for holding more than one
Benefice, may be enjoyed, which is impoſſible, if by reaſon of the
fame Act, Perſons having more Benefices than one be reſtrained from
being abſent from any one of them by the Space of one Month together,
or by the Space of two Months, to be accounted at ſeveral Times in
any one Year. And I ſuppoſe, that if a Pluraliſt, though duly reſi-
dent
be
368 The Clergy-Man's Law: Or, Chap. XXXVII ,
Egreco
i W. & M.
ons,
Reſidence, fident upon one of his Benefices be puniſhable by this Act for not be
ing reſident upon his other, that a Non obſtante had of the King, be
fore ſpoken of, will not ſave him from the Penalty thereof, becauſe
all Licences and Diſpenſations to be non-reſident, contrary to the faid
Act, are thereby made void, and of none Effect, with a Proviſion, that
it ſhall be lawful to the King to give Licence to every of his own
Chaplains to be non-reſident, but no Proviſion for his licenſing of
otlier.
And it is alſo declared and enacted, That no Dilpenſation by Non
againft Non obſtante of oz to any Statute, of any part thereof, ſhall be allowed,
Obftantes.
but that the ſame ſhall be held void and of no effect, except a Difpen
fation be allowed of int ſuch Statute ; and except in ſuch Cales as
fhall be ſpecially provided fož by one or more Bill o? Bills to be patted
during this preſent Sellion of Parliament. And it is alſo declared,
That the pretended Power of ſuſpending of Laws, od the Erecution
of Laws by Regal authority without Conſent of Parliament is ille
Archbiſhop's gal. Stat. i W. and M. Declaring the Rights and Liberties of the
Subje£t, &c. Seßl. 2. cap. 2. But I conceive, that if any perſon having
Difpenfati-
more than one Benefice (eſpecially with Cure) by fufficient Diſpenſa
tion, be puniſhable (being reſident upon one of them) for not being
alſo reſident upon his other, he is only puniſhable in the Eccleſiaſtical
Court, and as an Offender againſt the Eccleſiaſtical Law, and not a-
gainſt the aforeſaid Statute of 21 H. 8, and that chiefly by reaſon of
the uſual Proviſo in the Archbiſhop's Diſpenſation to hold two Bene-
fices with Cure, which is this, Proviſo ſemper in qualibet prædi&ta-
rum Ecclefiarum tum ea qua majorem ob partem te abeſse contigerit
,
tum altera in qua perpetuam ew perſonalein reſidentiam feceris trefde-
cim quotannis Conciones juxta Ordinationes Eccleſia Anglicana edi-
tas, in ea parte habeas ipſique ſacrum Dei verbuin fincere, religioſe
& reverenter tractes, ubique in eodem Beneficio, a quo te magis abeſle
contigerit, per duos tamen menfes quotannis Hoſpitalitatem exerceas,
eoque tempore pro illius beneficii fructibus & commodis Parochiæ ejus
in dolas præfertim egenos & pauperes (quantum poteris) ſuſtentes e
releves. (Quære.)
If Biſhops be It
may be a Queſtion, Whether Biſhops, for their being not reſident
for Non-re- upon their Biſhopricks, are puniſhable by the Statute of 21 H. 8.c. 13,
and I conceive that they are not puniſhable thereby, for that the ſaid
Statute enjoins Reſidence to Perſons promoted to any Archdeaconry,
Deanry or other Dignity in any Cathedral Church; which other Dig-
nity is to be conſtrued to extend only to Dignities of like or inferior
Nature, and not to Biſhopricks, which are of a ſuperior Nature. But
though an Archbiſhop or Biſhop be not tied to be reſident upon his
Biſhoprick by the Statute of 21 H. 8, yet they are thereto obliged by
the Eccleſiaſtical Law, and may be compelled to keep Reſidence by
Eccleſiaſtical Cenſures. And if a Biſhop hold in Commendam an Arch-
deaconry, Deanery, or like inferior Dignity, Parfonage, or Vicarage
with his Biſhoprick, he is puniſhable by the ſaid Statute, if according
to the ſame he be not reſident upon ſuch Dignity, Parfonage or Vi-
carage, and that tho' he be conſtantly reſident upon his Biſhoprick le
ſhall not be excuſed thereby.
The Reſidence required in the Statute of 21 H. 8. C. 13, is to be
dent in the underſtood to be in the Houſe belonging to the Dignity or Benefice
Parſonage
of which a Parſon is the Incumbent ; and therefore, if a Parſon be
reſident
fidence.
to be refi-
Houſe.
3
Chap. XXXVII. The Complete Incumbent
369
Erc.
and
40
Excuſe.
Vide i Cro.
590.
reſident in the fame Pariſh, in any other than the Parſonage Houſe, Nefidence,
he is not free from the Penalty of this Law, Per Curiam. Paſch. 40
Eliz. B. R. Butler and Goodal's Cafe. 6 Co. 21, and by Coke. Hill.
8 Jac. C. B. Cannye v. Dr. Newman. 2 Brownlow and Gouldsborough
54, and by Gawdy and Popham contra Clinch and Fenner. Mich. 39
Eliz. Goodal v. Butler. 3 Cro. 590. Same Caſe. Gouldsborough
54, and Moor 540. And if the Incumbent doth demiſe his Houſe to
another, and reſerve one Chamber, this doth not better his Cafe, Hill.
43 Eliz. Goodal v. Butler. Gouldsborough 169, no, though he doth
keep the whole Houſe in his Hands and occupy it. Hill
: 8 Fac. Car-
riage v. Dr. Newman. 2 Brownlow and Gouldsborough 54. But if there
be not any Houſe belonging to his Benefice wherein he may dwell,
he is excuſed; and ſo I ſuppoſe if by reaſon of its Meanneſs and
Smalneſs it be unfit to entertain his Family; fo lawful Impriſonment Impriſon-
without Covin is a good Excuſe of Non-relidency; and it is ſaid, that ment, &c. an
it was holden in the Exchequer, Trin. 39 Eliz, that Sickneſs without
Fraud was alſo a good Excuſe, viz. if the Patent remove by the Ad-
vice of his Phyſician, bona fide, for better Air, and for the Recovery 6 Co. 21.
his Health. Paſch. 40 Eliz. B. R. Butler and Goodal's Cafe. 6 Coke 2 Bulft. 18.
21. And generally to make a Perſon liable to the Penalties of the
Statute, his Non-reſidence muſt be voluntary, and not by Compulſion
or Reſtraint, Per Curiam. Trin. 30 Eliz. B. R. William Collins v.
Edward Vaughan. 3 Cro. 100, and by Popham. Hill. 43 El. Goodal
v. Butler. Gouldsborough 169, for the Words of the Statute are, je
he abſent himſelf wilfully.
The other Caſes wherein a beneficed Perſon may be excufed if non-
reſident, are expreſſed in the Statutes before ſet down ; only this is to
be noted, That if a Baroneſs, &c. retaineth two Chaplains according
to the Statute, and afterwards taketh one of the Nobility to Husband,
the Retainer of theſe two Chaplains remaineth in force, and there-
fore ſo long as they attend upon ſuch Baroneſs, &c. they ſhall not
be adjudged non-reſident. Hill. 43 Eliz. C. B. Acton's Cafe.
4
Coke
118. b.
Alſo Note, Although in the Statute of 21 H. 8. C. 13, it is only
faid, that the ſame Statute ſhall not extend to any Spiritual Perfons
as ſhall chance to be in the King's Service beyond the Sea ; that be-
fore the ſaid Statute it was enacted as followeth :
aico all Barons of the Erchequer claiming by their Puolledge, 9 Ed. c. 2. 8.
that they ought to make anſwer to no Complaint out of the fame of Clerks
Place, ertend the fame Priviledge unto Clerks abiding there, called the King's
employed in
to Diders, od unto Relidence, and inhibit Didinaries that by no Service.
Means, oz for any Cauſe, (ſo long as they be in the Erchequer, og
in the King's Service) they fhall not call them to Judgment. The
Anſwer: It pleaſeth our Lord the king, that ſuch Clerks as attend
in his Service, if they offend, thall be correded by their Didinaries,
like as other ; tut ſo long as they are occupied about the Erchequer,
they thall not be bound to keep Relidence in their Churches. This is
added of new by the King's Council
. The King and his ancellors
fince Time out of mind have uſed, that Clerks which are employed
in his Service, during ſuch Time as they are in Service, thall not
be compelled to keep Relidence at their Benefices. And ſuch Things
as be thought neceſſary for the King and the Commonwealth, ought
not to be ſaid to be prejudicial to the Liberty of the Church, Stat.
9 Ed. 2. c. 8. See Regiſter. fol. 58. b.
Nnn
If
370 The Clergy-Man's Law: Or, Chap. XXXVII.
on 21 H. 8.
C. 13. Soc.
H.6.
Stat. i W. &
Refidence, If an Information upon this Statute of 21 H. 8. cap. 13, be to be
Esc.
brought for Non-reſidence, it may not be brought before the Juſtices
Concerning of Allize, and Oyer and Terminer ; for the Statute doth not give it
Information but only in the King's Courts, where there may be Eſfoin, Wager of
Law, or Protection, and that notwithſtanding the Statute of 21 Jac.
cap. 4. Mich. 4 Car. B. R. Green and Guy's Cafe, 1 Cro. 146, and
fce the fame Book for this Matter, fol. 112. And Note, That in the
Information it muſt be alledged, that the Party willingly abfented
himſelf, &c. or it will not be good. Trin. 30 Eliz. B. R. Collins v.
Vaughan. 3 Cro. 100. And if there be two Informations brought at
the ſame Time for the fame Thing, the Party need not anſwer to ci-
ther. Mich. 11 Jac. Pye v. Coke. Moor 864. 2 Roll's Abr. 576.
Note alſo, That when an Action of Debt was brought againſt one
as Rector of T. in the County of B. and the Defendant pleaded, that
before Writ brought he was dwelling at B. in the County of N. it
was not allowed as a fufficient Plea to abate the Writ; for a Parſon
ſhall be intended in Law to be reſident upon his Benefice, becauſe of
the Cure of Souls which he hath there. The Caſe of the Maſters
and Fellows of Magdalen College in Cambridge. Pafch. 13. Fac.
II Co. 70. And if in this Cafe he doth plead alſo that he hath ano-
ther Benefice, yet the Plea ſhall not be allowed. 10 H. 6. 8. 7.
1. 8 H. 6. 37.
See alſo the Statute 1 W. and M. Sell. 1. cap. 26, for veſting in the
M. cap. 26.
Univerſities the Preſentation of Benefices belonging to Papiſts; where-
in by Se&t. 6, 'tis provided, That if any Perfon ſo preſented or nomi-
nated to any Benefice with Cure, ſhall be abfent from the ſame above
the Space of ſixty Days in any one Year, that in fuch Caſe the ſaid
Benefice ſhall become void.
Note a Right Reverend Prelate in his late Codex, has under this
Title of Reſidence, &c. introduced ſomewhat touching Coadjutors to
Incumbents, viz.
In caſe of any habitual Diſtemper of Mind, whereby the Incum-
bent is rendred incapable of the Adminiſtration of his Cure (as Frenzy,
Lunacy, &c.) the Laws of the Church have provided Coadjutors; of
thefe (ſays he) there are many Inſtances remaining upon our Books,
both before and ſince the Reformation ; and we find them given ge-
nerally to Parochial Miniſters, but ſometimes to Deans, Archdeacons,
Prebendaries, C. And no doubt they may be given in ſuch Cafes at
the Diſcretion of the Ordinary to any Eccleſiaſtical Perfon, having
Eccleſiaſtical Cure and Revenue.
The Powers conveyed are firſt in general Terms, the Office of a
Coadjutor, and then in particular the Looking after the Cure, the Re-
ceiving of the Profits and the Diſcharge of the Burdens, with an Obli-
gation to be accountable to the Ordinary when called upon. But the
Biſhop confeſſes, that the Article for looking after the Cure is a late
Claufe, and not found in the antient Appointments of this Kind, even
of thoſe ſince the Reformation, which extended no farther than the
Adminiſtration of the Revenues. Not (fays he) but the Office was al-
ways committed to a Clergyman, who if not engaged in another
Cure might take on him the ſpiritual Part alſo, and have it accord-
ingly committed to him by the Biſhop: But this was properly no
Part of the Office of a Coadjutor as ſuch, which antiently related
to the Temporalities only.
Codex 939
And
Chap. XXXVII. The Complete Incumbent.
371
And then the Biſhop adds an Extract out of Archbiſhop Thitg. Beſidence,
,
3 Regiſter, fol. 131. viz. In the Reign of Queen Elizabeth
the Court of Wards had taken upon them to commit the Perfon
and Revenues of a lunatick Incumbent to a Layman, who was
his near Relation į againſt which the Archbiſhop objected as an
Incroachment on the Eccleſiaſtical Juriſdiction, and proved the
Charge by divers Teſtimonies out of the Records of Canterbury
and London. And the Perſon to whom the Cuſtody had been
committed being cited to anfwer the Charge of the Archbiſhop,
and alledging nothing to the contrary, the Court thereupon made
this Declaration, ciz. “ This Court hath not any Power or Jua
o riſdiction to interinedle with or commit the Spiritual or Eccle-
« fiaſtical Livings or Poffefíions of any Spiritual Perſon, that is
« lunatick or Non compos Mentis ; but that the fame reſteth in
“ the Eccleſiaſtical Magiſtrates to appoint and diſpoſe, as former-
“ ly hath been accuſtomed. But for the moveable Goods of the
« faid Incumbent Lunatick, and his temporal Poſſeſſions, the Court
« will further conſider thereof, &c. In Purſuance of which De-
claration the faid Archbiſhop committed the Adminiſtration of the
Spiritual Revenues to a Clergyman under the Stile of a Coadju-
tor ; and afterwards by a ſeparate Inſtrument committed the Cu-
ſtody of the Lunatick to the Perſon who had been appointed for
the whole Care by the Court of Wards.
And Note in the Time of Archbiſhop Abbot, the Office of ſuch
Coadjutor was explained and enforced by ſpecial Rules, and Or-
ders to be obſerved between the Miniſter and his Coadjutor in Point
of the Profits, c. But Quære by what Authority thoſe Rules and
Orders were made ; for the Biſhop has not inform'd us, nor where
they may be found.
ins
CH A P. XXXVIII.
.
Of Corporations ſole and aggregate, and of
the Statutes concerning Mortmain.
Aving ſpoken of the ſeveral Duties of a Miniſter as the Efe& of Whatarétke
his being inſtituted to a Benefice with Cure, or otherwiſe charged Minifter's le-
with the Cure thereof, and of all Things relating thereunto, I am galPoffeßion.
now to thew what are the Effects of his legal Poſſeſſion, which is that
by which a Clergy-Man doth become a compleat Incumbent of an
Ecclefiaftical Preferment againſt all Perſons whatſoever. Hill. 11 F10
Needler v. Winton and Needham. 1 Brownlow and Gouldsborough 163.
38 E.-3. 4. 13 Jac. Hitchins and Glover's Cafe. i Roll's 191. 4 EI.
Dyer 217. 33 8. 6. 24. 6 Co.49.b.7 Co. 26, whether the Poffeffion
be by a formal Induction, Inſtallation, or otherwiſc.
Firſt then of a Clergy-Man’s being legally entitled to an Eccleſia- Ecclefiafti-
ſtical Benefice or Promotion, there follows this inimediate Effect, that.cal Secular
luch Clergy-Man is at leaſt thereby an Eccleſiaſtical Seculár Body ticky for
Nnn 2
Poli- Corporation
fols, och
That he is an
372 The Clergy-Man's Law: Or, Chap. XXXVIII.
E
ti02poza:
ritual.
Politick, or Corporation folc, or a Member of an Eccleſiaſtical Secu-
ons Spi- lar Body Politick, or Corporation agrregate, or both, 3 Inft. 202, (for
Eccleſiaſtical Regular Bodies Politick are extinguiſhed within this
Rcalm, ſuch were Abbot and Covents.) A Clergy-Man by being
made a Biſhop, Prebend, Parfon, Vicar, or the like, becomes a Cor-
poration fole. I Roll's Abr. 512. d. By being inade Member of a
Chapter, he is a Member of a Corporation aggregate, for ſuch is a
Dean and Chapter, and all other Corporations conſiſting of many.
1 Roll's Abr. 512. C. And indeed by being made a Dean or, Prebend
of a Church, if he holds his Poffefſions ſingly he is a Corporation
fole, and yet with others he doth make a Chapter, and thereby is a
Member of a Corporation aggregate, and ſo the ſame Perſon by be-
ing Incumbent of the ſame Preferment, may be both a Corporation
fole, and a Member of a Corporation aggregate. A Corporation ag-
gregate is ſaid to be inviſible, immortal, and to reſt only in Intend.
ment and Conſideration of Law, and therefore can have neither Pre-
deceffor nor Succeſſor, nor can they commit 'Treaſon, be outlawed or
excommunicated. 45 E. 3. 2. 3. b. Fitz. Corporations, &c. 11. They
cannot appear in Perſon, but by Attornies, nor do Fealty, becauſe
being an inviſible Body cannot appear in Perſon, 13 H. 8. 12. And
the Continuance of either Sort of Corporations doth not depend upon
the Preſervation of their Poſſeſſions, as is ſaid. Paſch. 40 and 41 El.
the Dean and Chapter of Norwich's Cafe. 3 Co. 75, for a Corporation
may be created without Lands, and though a Dean and Chapter
ſhould part with all their Poſſeſſions, yet they remain ſtill a Corpora-
tion to the Purpoſes for which they were inſtituted; they have Vocem in
Capitulo, &c. Hill. 3 Car. B. R. Haywood v. Fulcher. Jones 168.
And if the Corps of a Prebend bę a Manor, and nothing elſe, and
the Manor be recovered from him by a Title paramount, yet this
Corporation remains, he is a Prebendary ſtill, and hath Stallum in
Choro Vocem in Capitulo, though he hath no Poſſeſſions. 15 Alize
8. And ſo it is, becauſe by the Biſhop's Conſent they were incorpo-
rated before they had Poſſeſſions, and after had Poſſeſſions aſſigned to
them out of ſome of the Poſſeſſions of the Biſhoprick, which before
were in common. Mich. 40 and 41 Eliz. the Caſe of the Dean and
Chapter of Norwich. 3 Co. 75. b. 10 Co. 28, 25" All. 28. 3 Cro. 79.
Such Body
This Effeſt of a legal Title, viz. of being thereby a Body Politick
Politick, ECE
or Corporate, brings with it another Effect, vizi that the Corporation
chale Lands. may purchaſe or receive to it felf and its Succeſſors any Gift of any
Manors or other Inheritances, whether corporeal, as Lands and the
like, or incorporeal, as Advowfons, Tythes, Rents, Commons, Eſto-
vers ; but a Chapter is not a Body that hath a Capacity of its felf
,
to take by Purchaſe or by Gift without the Dean, who is the Head
of their Body. Eire's Cafe. Moor 51. 4 Leon. 223. I Inft. 263, 264.
13 H. 8. 12. 14 H. 8. 30. Yet there may be a Chapter without any
Dean, as the Chapter of the Collegiate Church of Southwel; and
Grants by or to them are as effecțual as other Grants by Dean and
Chapter, and they are reſtrained by the Statutes of 13 Eliz. tho' the
Words of that Statute be, Deans and Chapters, Trin. 27. Car. 2.
C. B. the Chapter of the Collegiate Church of Southwell v. the Bi-
How a Cor- ſhop of Lincoln and J. S. Mod. Rep. 204. And a Corporation aggre-
gate may alſo take any Chattei, Bond, Leaſe, or the like, in its poli-
take a Chats tick Capacity, becauſe it always is in Being ; but otherwiſe it is as
tel Esco tɔ Corporations fole, for regularly as to them no Chattel can go il
may pur:
poration ag, gate may
gregate may
.
4
Suc-
Chap. XXXVIII. The Complete Incumbent.
373
ritual.
Succeſſion. i Roll's Abr. 515.b. 4 Co. 65. Nor can they take Bond to Cofroja-
them and their Succeſſors. Mich. 32 H. 8. Dyer 48. a. contra by Sirelacions Spis
ley. Therefore if a Leaſe for Years be made to a Biſhop, or to a
Parſon and his Succeſſors, it ſhall go to his Executors or Adminiſtra-
tors, for it is as a Leaſe made to a Man and his Heirs, which ſhall
go
to the Executors. Inſt. 46. b. Accordingly when a Chantery Prieſt
incorporate took a Leafe to him and his Succeſſors for an Hundred
Years, and after took a Releaſe from the Leſſor to him and his Suc-
ceſſors, it was adjudged that by the Releaſe he had but an Eſtate for
Life, for he had the Leaſe at firſt in his natural Capacity, for that it
could not go in Succeſſion, and the Words [his Succeſors] could not
give him an Eſtate of Inheritance in the fame Capacity he had the
Leafe for want of the Words [his Heirs). If the King by his Letters
Patents giveth Lands Decano Capitulo habendum fibi & Hæredibus
& Succefloribus ſuis, in this Cafe, albeit they be Perſons capable to
take in their natural Capacity to them and their Heirs, yet becauſe the
Grant is made to them in their politick Capacity, it ſhall enure to
them and their Succeſſors : And ſo if the King do grant Lands to 7. S.
habendum fibi Go Succefforibus, five Hæredidus ſuis, this Grant ſhall
enure to him and his Heirs. i Inft. 9. a. But if the King grant to
J. S. Parſon of D. and his Succeſſors, and to 7. S. Clerk, and his
Heirs, in this caſe he is Tenant in Common with himſelf. i Inft.
190. a.
As to a Corporation receiving or purchaſing Lands, or the like, As to a Cor-
theſe Things are to be noted : Firſt
, 'That a Corporation cannot be poration
feiſed in Tail, for that every Eſtate in Tail ought to limit of what purchaſing
Lands, Egoo.
Body their Heirs ſhall be, but it may have an Eltate in Fee determin-
able
upon
the Death of a Perſon without Iſſue, &c. Secondly, A fole
Corporation may be ſeiſed of a Freehold for its own Life, but not a
Corporation aggregate, becauſe in never dies. Thirdly, A Corpora-
tion cannot be feiſed to the Uſe of another; and therefore if one by
Licence without a valuable Conſideration makes a Feoffment, levieth
a Fine, or ſuffers a Recovery, or the like, to a Corporation, and no
Uſe is limited, the Corporation ſhall be feiſed to their own Uſe; or
if an Uſe be limited to ſome certain Perſon, yet the Corporation ſhall
be feiſed to their own Uſe, and not to the Uſe of him to whom the
Uſe is declared. i Co. fol. 122, 126. Fourthly, If Lands be given to Lands given,
a Corporation aggregate of many, it muſt be by Deed; but to a ſole Esc. to a
Corporation they may be granted without Deed, and fo may all other Corporation
aggregate.
Things that will pafs without Deed to a perſon in his natural Capaci-
ty. i Inſt. 94. b. Fifthly, If Lands be granted to, or purchaſed by
a Corporation aggregate, as Dean and Chapter, cc. they have a Fee-
Simple with the Word [Succellors], for that the Body never dies. 19
H. 6. 74. 20 H. 6. 36. i Inft. 94. b. But if they be given to, or pur-
chaſed by a ſole Body Politick or Corporate, as Biſhop, Parſon, or the
like, who after their Deceaſes have a Succeſſion ; there to give him an
Eſtate of Inheritance in his politick or corporate Capacity, he muſt
have theſe Words [his Succeflors], for as the Heir doth inherit to the
Anceſtor, and the Executors ſucceed to the Teſtator ; fo doth the
Succeffor ſucceed to the Predeceſſor; and yet even in the Caſe of
a ſole Corporation, a Fee-Simple ſhall ſometimes paſs without this
Word [Succelors], as if a Feoffment in Fee be made of Land to a
Biſhop, or the like, to have and to hold to him in libera Eleemo-
(31.1, a Fee-Simple doth paſs without the Word [Succeſors], for ſuch
Grants
374 The Clergy-Man's Law: Or, Chap. XXXVIII.
ritual.
Grants in
Frankal-
Licence of
Mortmain to
18 E. 3. c. 3.
As to the
cence.
Corpora Grants in Frankalmoign are ancient Grants, and therefore ſhall be al-
tions Spi- lowed as the Law was taken when ſuch Grants were made. Plowd.
C011. 242. Lord Berkley's Cafe. i Inft. 94. b. Sixthly, Although a
Corporation hath a Capacity to purchaſe and receive any manner of
moign.
Inheritance as is ſaid, yet can they not retain it unleſs a duc Licence
of Mortmain be obtained for the ſecuring it to them, that is, both of
the King, the Lords mediate and immediate. And if the King, and
be obtained. all the Lords mediate and immediate, do grant a Diſpenſation of the
Statute of Quia emptores terrarum. 18 E. 1, this ſhall enure to two
Intents, viz. to a Diſpenſation both of the ſaid Statute, and of the
Statutes of Mortinain, becauſe their Deeds ſhall be taken moſt ſtrong-
ly againſt themſelves : But it is a ſafe and good Policy in the King's
Licence to have a Non obſtante alſo of the Statutes of Mortmain,
and not only a Non obſtante of the Statute of Quia emptores terra-
p111. 18 E. 1. But it appeareth by Littleton, that there needeth not
any Non obſtante of the Statutes of Mortmain, for the King ſhall not
be intended to be miſconuſant of the Law; and when he licenſeth ex-
prefly to alien to an Abbot, c. which is in Mortmain, he need not
make any Non obſtante of the Statutes of Mortmain ; for it is appa-
rent to be granted in Mortmain, and the King is the Head of the
Law; and therefore Præfumitur Rex habere omnia Jura in ſcrinio
pectoris ſui, for the Maintenance of his Grant to be good according
to the Law. i Inſt. 99. a.
And as to the King's Licence it hath been enacted, That if Pies
lates, Clerks beneficed, of religious People which have purchaſed
King's Li-
Lands, and the ſame have put to Moutmain, be impeached upon the
fame befove our Juftices, and they fhew our Charter of Licence, and
Proceſs thereupon made by an Jnqueſt of Ad quod damnum, Od of
our Grace, of by fine, they ſhall be freely let in peace, without being
furtber impeached for the ſame Purchaſe. And in caſe they cannot
fufficiently fhew, that they have entred by due Proceſs after Licence to
them granted in general op in ſpecial, that they thall be well received
to make a convenient fine for the ſame, and that the Enquiry of this
Article thall wholly ceaſe, accoding to the accold compziſed in this
Parliament. Stat. 18 E. 3. cap. 3. And if the King, who gave the
Licence, doth die before Execution thereof, yet it may be executed af-
ter, 1 Inftit. 92. b. If an Eccleſiaſtical Perſon hold Lands by Fealty
and certain Rent, the Lord may confirm his Eftate to hold to him
and to his Succeſſors in Frankalmoign; for the former Services be ex-
tinct, and nothing is reſerved, but that he holds of him, and ſo he did
before, 1. Inft. 99. a, and this it ſeems without other Licence.
And as to this Matter, divers other Statutes have been made ; the
Firſt, upon which all the reſt are built and have Dependance, is,
Stat. 9 H. 3. Stat.9 H. 3. C. 36. The Words of which are, it ſhall not be lawful
from hencefo2th to any to give bis Lands to any Religious Houſe,
and to take the came Land again to hold of the Came poule. Doz
tall it be: lawful to any houſe of Religion to take the Lands of any,
and to reteaſe the came to him of whom he receided it : If any from
bencefoxb give his Lands to any Religious Houſe, and thereupon be
convid, the Gift Thall be utterly void, and the Land fhall accrue to
the Lojd of the fee.
flowavoided But religious Men found out divers Ways to avoid this Statute, as
byen.eligious by purchaſing Lands held of themſelves, or to take long Leafes for
Ycars, and many other Devices to eſcape out of this statute : And
.
4. 36.
2
4
be
Chap. XXXVIII. The Complete Incumbent.
375
beſides, all' others, except only Ecclefiaftical Perſons regular, as Xozemain.
Abbots, &c. thought themſelves to be out of this Statute; there
Remedy by
fore to meet with theſe Evaſions was made this Statute, 7 Ed. 1, Stat. 7 32.1
which is as followeth : Where of late it was provided, That Reli
gious men ſhould not enter into the fees of any without Licence and
Will of the Chief Lold of whom ſuch fees be bolden iinmediately :
and notwithſtanding ſuch Religious Den have entred as well into their
own Fees, as in the fees of other pen, approprying and buying
them, and ſometime receiving them of Gift of others, whereby the
Services that are due of ſuch Fees, and which at the Beginning
were provided for the Defence of the Realmi, are wrongfully with
diawn, and the Chief l olds do leere their Elcheats of the ſame :
We therefore to the profit of our Realm, intending to provide con:
venient Remedy, by the advice of our Prelates, Earis, Barons, and
other our Subjects, being of our Council, have provided, made, and
oldained, that no Perlon, religious oy other, whatſoever be be, that
will buy od ſell any Lands o2 Tenements, 02 under the Colour of Gift
02 Leale, od that will receive by reaſon of any other Title, whatlo-
ever it be, Lands od Tenements, of by any other Craft 02 Engine
will preſume to approve to himſelf, under Pain of Fo{fetture of the
ſame, whereby ſuch Lands Of Tenements may any wiſe come into
Potmain. We have provided alſo, that if any perſon, religious of
other, do preſume either by Craft 02 Engine to offend againſt this
Statute, it thall be lawful to us, and other Chief Lowds of the fee
immediate to enter into the Land ſo aliened, within a year from the
Time of the alienation, and to hold it in fee, and as Juberitance.
and if the Chief Lord inimediate be negligent, and will not enter
into ſuch fee within the year, then it thall be lawful to the nert Chief
Loid immediate of the ſame fee to enter in the ſame Land within
half a year nert following, and to hold it as before is Caid ; and ſo
every Loid immediate may enter into fuch Land, if the next Loud be
negligent in entring into the ſame fee, as is aforeſaid. And if all
the Chief Lords of ſuch Fees, being of full age, within the four
Seas, and out of Pairon, be negligent ou flack in this Behalf, We
immediately after the year accompliſhed, from the Time that ſuch
Purchaſes, Gifts 02 Appropriations bap to be made, fhall take ſuch
Lands and Tenements into our hand, and ſhall infeoff other therein
by certain Services to be done to us for the Defence of ous
Realm, Caving to the Chief Lods of the ſame Fees their Wards and
Elcheats, and other Services thereunto due and accultomed. And
therefore we command you, that ye cauſe the forefaid Statute to be
read befoje you, and from hencefoth to be kept firmly and obſerved.
Witneſs my ſelf at Weſtminſter, the fourteenth Day of Novem
ber, in the Seventh Year of our Reign.
This Statute is to be underſtood of ſuch Inheritances as may be hol- Annuity
, no
den, for of ſuch Inheritances as are not holden, as Villains, Rents,
Charges, Commons, and the like, the King ſhall have them prefently
by a favourable Interpretation of the Statute ; and this Statute doth
extend as well to Temporal Corporations fole or aggregate as Eccle-
fiaftical: But an Annuity granted to them is not Mortmain, becauſe
it chargeth the Perſon only, not the Land. 1 Inft. fol. 2. b.
But this Statute extending only to Gifts, Alienations, and other Con- Another E-
veyances, made between them and others, they gave over that Way ; vented.
but then pretending a Title to the Land' (that they neant to get),
brought a feigned Action againſt the Tenant of the Land, and he by
3
Con-
376 The Clergy-Man's Law: Or, Chap. XXXVIII
Qoztmain. Conſent and Colluſion ſhould make Default, and thereupon they ſhould
recover the Land and enter by Judgment at Law. But this Evaſion
was provided againſt in theſe Words :
Rcniedy by wühen Religious Men and other Ecclefiaftical Perſons do implead
13 E.1.6. 32. any, and the Party impleaded maketh Default, whereby he ought to
leeſe the Land, fozaſmuch as the Judices have thought hitherto, that
if the Party impleaded make Default by Collution, that where the
Demandant, by Dccafion of the Statute, could not obtain Seilin of
the Land by Title of Hift, or other alienation, be thall now by realon
of the Default, and ſo the Statute is defrauded. It is odained by
our Loid, the king, and granted, That in this Cale, after the Des
fault made, it thall be enquired by the Country, whether the Deman
dant had Right in the Ching demanded od 10 ; and if it be found that
the Demandant had Bight in his Demand, the Judgment thall paſs
with hini, and be ſhall recover Seitin; and if he hath no Rigit, the
Land fhail accrue to the nert Lold of the fee, if he demand it within
a Bear from the Time of the Inqueſt taken. And if he do not des
mand it within the year, it ſhall accrue to the next Lojd above, if
he do demand it within half a year after the ſame Year : and ſo every
Lozd after the next Loid fhall have the space of half a year to dés
mand it ſucceſively, until it come to the king, to whom at length,
through Default of other Loids, the Land ſhall accrue. And to chal-
lenge the Jurois of the Inquett, every of the Chief Lords of the
fees fhall be admitted, and likewiſe foz the King, they that will ſhall
challenge. and after the Judgment giveni, the Land call remain
clear in the King's hands, until it be dereigned by the Demandant,
od Come other Chief Lold, and the Sheriff ſhall be charged to anſwer
therefone at the Erchequer. Stat. 13 Ed. I. cap. 32.
Notwithſtanding all theſe Statutes, they after procured Lands to be
conveyed to divers Perſons and their Heirs to the Uſe of them and
their Succeſſors, by reaſon whereof they took the Profits. But a Stop
was put to this Practice by another Statute, as followeth :
TWhereas it is contained in the Statute De Religioſis, that no Re:
Remedy by
15 R. 2. c. 5. ligtous, noj other, whatſoever he be, do buy or ſell, or under Colour
of Gift, ol Term, O2 any other manner of Title whatſoever, receive
of any agan, 02 in any manner by Hift of Engine, cauſe to be appza:
priated unto him any Lands o. Tenements upon Pain of Folfeiture
of the Came, whereby the ſaid Lands 02 Teneinents in any manner
might come to Mortmain. And if any Religious, ou any other, da
againſt the ſaid Statute, by Art 02 Engine in any manner, that it
be lawful to the king, and to other Lozds upon the ſaid Lands and
Tenements to enter, as in the Cato Statute doth more fully appear.
And now of late, by ſubtil Imagination, and by Art and Engine,
Come religious perſons, Uicars, and other Spiritual Perlouis, have
entred in divers Lands and Tenements which be adjoining to their
Churches, and of the ſame, by Sufferance and affent of the Ce:
nants, have made Church-yards, and by Bulls of the Bithop of Rome
have dedicated and hallowed the ſame, and in them do make continui:
ally Parochial Burying without Licence of the King and of the
Chief Loids ; therefore it is declared in this Parliament, That it is
manifeftly within the Compaſs of the ſaid Statute. and moreover
it is agreed and aftented, That all they that be poſſeſſed by Fcoffment,
Od by other manner, to the Ale of religious people, or other Spiri-
tual Perſons, of Lands and Tenements, fees, advowrons, oz any
manner
Another E-
vaſion.
3
Chap. XXXVIII. The Complete Incumbent.
377
cence to - ѕ.
moutiſe.
manner of other poffe Mons whatſoever, to amo{tiſe them, and inhere- Moztmain.
of the ſaid Religions and Spiritual perſons take the profits, that
betwirt this and the fraſt of St. Michael neft coming, they fhall
cauſe them to be amo2tiſed by the Licence of the king and of the King's Li-
Lolds, o2 elle that they ſhall ſell and alien them to ſome other Ure be:
tween this and the ſaid feaſt, upon Pain to be forfeited to the King,
and to the Loids, according to the form of the ſaid Statute of Bes
ligious, as Lands purchaſed by Religious People. And that from
henceforth no ſuch Purchaſe be made, ſo that ſuch Religious o2 other
Spiritual Perſons take thereof the Profits, as afore is ſaid, upon
Pain aforeſaid. And that the ſame Statute ertend and be obſerved
of all Lands, Tenements, fees, advowlons, and other poſſeflions
purchaſed, or to be purchaſed to the Uſe of Builds 02 Fraternities.
and moreover it is allented, becauſe mayors, Bailiffs, and Commons
of Cities, Boroughs, and other Towns which have a perpetual Com.
monialty, alid others which have Dffices perpetual, be as perpetual as
People of Religion, that from henceforth they fhall not purchaſe to
them, and to their Commons 02 Dilice, upon Pain contained in the
ſaid Statute De Religioſis. And whereas others be pofelled, oj bere-
after ſhall purchaſe to their uſe, and they thereof take the profits,
it ſhall be done in like manner as is afozelaid of people of Religion.
Stat. 15 R. 2. cap. 5.
And after all theſe, then was made the Statute of 23 H. 8. C. 10. 23 H.8.6: 1e.
as followeth : Where by reaſon of Feoffments, Fines, Recoveries, ments, Esc.
and other Eſtates and affurances, made of Truit, of Danois, Lands, to Uſcs.
Tenements, and hereditaments, to the Wie of Parith Churches,
Chapels, Church-wardens, Guilds, fraternities, Commonalties,
Companies, 02 Brothecheads, erected and made of Devotion, 02 by
common affent of the People without any coporation, and alſo by
reaſon of Feoffments, Fines, Recoveries, Wills, and other acts
made to any Ules afojelaid, od to the Ules and Intents to have D:
bites perpetual, 02 a continual Service of a Päeft for ever, og fod
Chreelcode 02 Fourſcope Pears, founden of the glues and profits of
the Danois, Lands, Tenenients and hereditaments, whereof ſuch
Feofiments, Fines, Recoveries, cuills, and other gas been made,
od that the Feoffees, Conilees, Recoverers, 02 other perſons and
their heirs thereof ſeized, fhall take, levy, receive and perceive, od
caule od ſuffer to be taken levied and perceived, the Jllies, Revenues,
and profits thereof, and the came to diſpoſe, pay, convert, oz otherwiſe
imploy of ſuffer, Ol cauſe to be diſpoſed, paid, converted, od employed
to any ſuch Ures, Jntents of Purpoſes, as been above ſpecified, 02 ta
any other like Uſes 02 Intents; there groweth and iſſueth to the King
our Sovereign Lord, and to other Lolds and Subjeas of the Realı,
the ſame like Lofles and inconveniencies, and is as much prejudi-
cial to them, as doth and is in caſe where Lands be aliened to molts
main.
Be it therefore enañed by the King our Sovereign Loid, the Lads
Spiritital and Tempozal, and the Commons in this preſent parlia-
ment aſſembled, and by authority of the fame, That all and every
ſuch Ures, Intents, and Purpoſes, of what ſame, nature of Duas
lity they ſhall be called, that thall be deviſed. covenanted, made, de
clared, or in any wiſe ozdained, after the Firſt Day of March, in the
Three and twentieth Bear of the Reign of our Sovereign Lord King
Henry the Eigbtb, by any feoffee, Hecoverer, of Coniſee, 02 by any
OOO
otbec
378 The Clergy-Man's Law: Or, Chap. XXXVII,
Postmain. other perfon 02 perſons, to whoſe Ale any ſuch Feoffee, Reciverer
or Conifee ſhall be ſeized of any qanois, Lands, Tenements, og
Hereditaments, ol of the jQues, Revenues and profits of them, ož
any of them, thall be utterly void, and of no Strengti), Tertue 1102
Effect in the Law.
Provided alway, That tt chall be læwful to every perſon being
feiſed of any Manors, Lands, Tenements, 02 Hereditaments, to his
oton proper Wle; od having Feoffees, Recovecers 01: Coniſees to his
We, to make 07 Oįdain, oy orvile, 02 cauſe to be made, ozdained og
deviſed, any of the Ulés, Intents of Parpoſes above ſpecified, int
ſuch manner as they might bave done befoje the making of this Act,
and as if this act had never been had ne made : So that no ſuch
Wiles, Jntents of Purpoſes to be ſo made, ordained or deviſed after
the fald Firſt Day of March, be not in any wiſe made, odained, des
biled on, appointed to endure, continue od abide by any Craft, Colour,
Terms, Sentences, Claules, Words, of other means, above the
Term of Twenty Bears neft after the firët making and beginning of
any ſuch Ules, Jutents of Purpoſes.
And it is farther enaxed, That if any perſon 02 Derſons in De:
fault of this Statute bind oz ozdain any their heirs of Suceetors,
oz any other perſon ol Derfons, that they thali fuffer ſuch Ules, in
tents or Purpoſes to endure and continue contrary to this At, upoit
Pains oj penalties of Lotles of any other Lands, Tenements, he.
reditaments, of of any other Thing 02 Things ; 02 do attempt o?
devife by any Colour, Craft og Means, any Ching of Things, ta
make any ſuch ares, Jntents o? Purpoſes to be declared contrary to
the true meaning of this act, to continue 02 abide for any longer
Time or Seaſon than is above limited for the ſame, that then every
ſuch Pain, Penalty, Craft, Colour, and every other thing and
Things of what kind, Nature 02 Quality Coever it be, that fhall be
ſo made, ojdained on deviſed in Defraud of this Act, thall be utterly
void in the Law to all intents. And that this statute thall be al.
ways interpreted and erpounded as beneficially as may be, to the De:
ftruâion and utter avoiding of ſuch Ules, Jutents and purpoſes
therein above remembred, and of all other like Ules and Intents,
otherwiſe than only after ſuch manner as is afoje by this preſent at
provided.
Provided alway, That fi Cuch Cities and Towns Coppolate, where
ancient Cu- by their ancient Cuiams they have good and lawful authorities to
depife into agoztmain the Landg, Tenements and hereditaments
within the ſame Cities of Towns Corporate, that this aa thall not
be in any wile prejudicial or hurtfut to any ſuch Cutom. 23. H. 8.
cap. 1o.
Charitable
But notwithſtanding this, or any of the before-mentioned Statutes,
any Man at this Day may give Lands, Tenements, or Hereditaments,
to any Perſon or Perſons and their Heirs, for the finding of a Preacher,
Maintenance of a School, Relief and Comfort of maimed Soldiers,
Suſtenance of poor People, Reparations of Churches, Highways,
Bridges, Cawfeys, diſcharging of poor Inhabitants of a Town of com-
mon Charges, for niaking of a Stock for poor Labourers in Husban-
dry, and poor Apprentices, and for the Marriage of poor Virgins, or
By 35 Eliz. for any other charitable Uſes. See the ſeveral Statutes of 35 Eliz. c. 7,
6.7. 39 El. 39 Eliz. c. 5. 43 Eliz. 6. 4. And it is a good Policy upon any Feof-
6. S. 4; El.
ment, &c. to ſuch charitable Ufes, to referve a ſmall Rent to the
4
Feoffor
Provifo for
ftoms.
Uſes allow
cd.
fo.
, Lands, Tenements, Bents, Cn
Chap. XXXVIII. The Complete Incumbent. 379
Feoffor and his Heirs, or to expreſs ſome ſuch Conſideration of ſome outmain.
ſmall Sum, for then the Feoffees ſhall be feiſed to their own Uſe, and
not to the Uſe of the Feoffor, and fo will be put out of Doubt, that
the Statute of 23 H. 8, cannot make void the Uſe. Mich. 34 and 35
Eliz. the Queen and Porter's Cafe. I Coke 24. b. Pafch. 13 Jac. the
Cafe of the Maſter and Fellows of Magdalen College, 11 Coke 70.
Alſo notwithſtanding any of the aforeſaid
Statutes, by the Cuſtom of
the City of London any Citizen being a Freeman of London, by his
Will in Writing may deviſe all his Leaſes and Lands, or any Part
thereof in the raid City in Mortmain without Licence, Doctor and
Student, Chap. 10. Mich. 14 Jac. Standiſh v. Short, Bridgmani 103.
Paſch. 28 and 29 H. 8. Dyer 33, but then the Citizen muſt be re-
fident there, and taxable to Scot and Lot, Roll's Abr. 1. 556. 45 Ed.
3. 26 Br. Cuſtoms 7. 38 AÑ: p. 18. Upon an Alienation in Mortmain
an Entry is given to the Lord of whom the Land is holden, and the
King can hold of none, but all Lands ought immediately or mediate-
ly to be held of him ; yet if it appear in any Conveyance, that an
Eſtate is granted to the King with an Intent to convey it in Mortmain,
it is not good. 17 Ed. 3.
And for the Augmentation of poor Benefices with Cure, it hath been Augmenta-
enacted, That every Dwner 02 Plop feto?, Dwners 0? Proprietors Benefices, by
of any Impropriation, Tythes, of Portion of Tythes, in any Pariſh 17 Car. c. 3.
O2 Chapelry within the Kingdom of England, o? Doininion of Wales, See in the
is, are, and fall be, by Certue of this act, enabled and impowered Chapter the
to give or befow, unite and anner the ſame, or any part thereof; un- Stat. 29 Car.
to the Parlonage or Vicarage of the ſaid Pariſh Church of Chapel 2. c. 8, for
where the ſame do lie, oj ariſe, og ſettle the ſame in Truff fod the tion of Vica-
Benefit of the Caid Parlonage og Uicarage, 0 of the Curate and Cu rages.
rates there ſucceſively, where the Parlonage is impropriate, and no
Wicar endowed accoding to his or their reſpeäise Eſtates, without
any Licence of Postmain; any Law a: Statute to the contrary not
with tanding.
and be it further enacted, Chat if the ſettled Maintenance of ſuch Where the
Parſonage, Vicarage, Churches and Chapels ſo united, 02 of any o. nance of a
ther Parlonage 02 Wicarage with Cure in the Kingdom of England, Parſónage,
Ol Dominion of Wales, ſhall not ainount to the full Sum of Dne hun:
died Pounds per Annum, clear and above all Charges and Reprizes, per Annum.
that then it ſhall be lawful for the Parlon, Vicar and 3ntiimbent of
the Came, and bis Succellons, to také, receive and purchaſe to him
and his Succeflozs, or other
Hereditaments, without any. Licence of Moatmain any Law of
Statute to the contrary notwithſtanding, Stat. 17 Car. 2. C. 3.
It is alſo enacted, Chat whereas it would be a great pindzalice to 7 & 8 W. 3.
Learning, and other good and charitable Toiks, if perſons well in: “ 37.
clined may not be perinitted to found Colleges of Schools for Encou.
ragement of Learning, og to augment the Revenues of Colleges and
Schoois already founded, by granting Lands, Tenements, Rents, 02
other hereditaments to ſuch Colleges ol Schools, 02 to frant Lands
0? other hereditaments to other Bodies polítick o, inco2pozated now
Ill Being, oj hereafter to be incorpojated for otheč god and publiek
Cles. Be it therefore enacted by the King's moſt ercellent Majeſty,
by and with the advice and Conſent of the Lods Spiritual and Tem-
polal, and Commons in this preſent Parliament aſſembled, and by Alle
thority of the ſame, that it call and may be lawful to and fol the
000 2
king,
WA
Soc. amounts
not to 100 l
380 The Clergy-Man's Law: Or, Chap. XXXVIII.
Church and king, our mot gracious Sovereign Lord, and for bis heits and
Church.
Succellozs, when and as often, and in ſuch Cales as his Majeſty, bis
Bard.
Heirs oj Succeffors thall think fit to grant to any perſon of Perſons,
Bodies Politick ou Cozpojate, their heirs and Succellozs, licenſe to
alien in @hotmain. and alſo to purchaſe, acquire, take, and hold in
moztmain in Perpetuity of otherwiſe, any Lands, Tenements, Rents,
02 Hereditaments whatſoever, of whomſoever the ſame fhall be bolden.
and it is hereby declared, that Lands, Cenements, Rents or Heredi-
taments Co aliened, of acquired, and licenſed, hall not be ſubjeâ to any
Fozfeiture fod oz by Reaſon of ſuch alienation of acquiñition. Stat.
7 and 8 W. 3. cap. 37.
CH A P. XXXIX.
Freehold of the Church and Church-yard, in
whom. Intereſt in, and diſpoſing Seats in
the Church, Church Repairs, Church Goods,
&c. Endowment of Vicarages, of the di-
ſtinct Rights of the Parſon and Vicar,
and of Augmentations and Dilapidations.
What Free-
hold and
Profits a
Compleat
Incumbent
A
When a Re-
&or hath
Poffeffion of
.
Second Effect of a Clergy-Man's being a compleat Incumbent of
an Eccleſiaſtical Benefice, is, That the Church and Profits of the
Church are actually veſted in him, ſo that he may enter upon, and
convert the Profits to his proper Uſe ; but yet he may not have Right
has Right to. to all the Profits that do belong to his Church.
As to which, to ſpeak particularly, it muſt be known, that after a
Rector hath Poſſeſſion of a Rectory, (eſpecially where there is no
a Re&ory." Vicar), the Soil and Freehold of the Church it felf, and Church-Yard
belonging to the Rectory, is in the Rector, 11 H. 4. 12. Hill. 12 Jac.
B. R. Frances v. Ley, 2 Croke 367, but the Fee-ſimple of the Glebe,
&c. are ſaid to be in Abeyance. 1 Inft. 341. a. And by his Leaſe of
the Parſonage, the Church and Church-Yard do pafs; and if the Walls,
Windows or Doors of the Church be broken by any Perſon, or the
Trees in the Church-Yard be cut down, or Grafs there be eaten up by
a Stranger, the Incumbent of the Rectory (or his Tenant, if they be
let) may have his Action for the Damage. 21 H. 7. 21. Br. Treipaſs
216. 38 H. 6. 19. 11 H. 4. 12. Br. Dean and Chapter 3. 12. And
ſee 8 H. 6. fol. 9, where the Lefſee at Will of a Parfon brought his
Action of Treſpaſs for breaking his Cloſe and Houſe, which was the
Church and Church-Yard, and admitted to be maintainable. And,
faith Rolle, it ſeems by the Book, that it was for coming there, not
in Time of Divine Service, c. but at fome other Time. Roll's Abr.
2. pag. 337.
3
And
Chap. XXXIX. The Complete Incumbent.
381
cence to bu
1907
And becauſe the Soil and Freehold of the Church is in the Parfon Church and
alone, and that the Church is not as the Church-Yard is, a common are
Burial-Place for all the Pariſhioners, the Church-Wardens, or Ordina-
ry himſelf, cannot grant Licence of Burying to any Perſon within the Parſon's Li-
Church but only the Rector, or Incumbent thereof. Hill. 12 7ac. ry in the
B. R. Frances v. Ley. 2 Croke 366. Mich. 12 7ac. Day v. Bedding- Church.
field. Noy 104, yet the Church-Wardens by Cuſtom may have a Fec
for every Burial within the Church, by reaſon the Pariſh is at the
Charge of repairing the Floor. Mich. 27 Car. 2. Andrews v. Syanſon.
3
Keble 504, 523, 527. I Ventris 274, and though the Church and
Church-Yard be the Parſon's
, and be confecrated, yet a Man may pre-
ſcribe to have a way through the Church or Church-Yard. Roll's Abr.
2. 265.
And concerning the Parſon's Right to Trees growing in the Church Trees grow-
Yard, it hath been eſtabliſhed as followeth, which, Coke fays, is but Church
a Declaration of the Common Law, u Coke 49. Becauſe we do Yard.
35 Ed. 1. Ano
underſtand, that Controvertes do oft times grow between Parſons
of Churches and their pariſhiones, touching Trees growing in the
Church Vard, both of them, pretending that they do belong unto them.
ſelves: We have thought it good rather to decide this Controverſy
by Writing than by Statute ; fozaſmuch as a Church.yard that is
dedicated is the soil of a Church, and whatſoever is planted belong.
eth to the Soil, it muſt needs follow that thoſe Trees which be grows
ing in the Church Yard are to be reckoned amongſt the Gods of the
Church, the which Lay.Men have no authodity to diſpoſe; but as the
Scripture doth teſtify, the Charge of them is committed only to
Pielts to be diſpoſed of.
and yet ſeeing thoſe Trees be often planted to defend the force of To be uſed
the wind from hurting of the Church, We do pot 'bit the Parlons of the Chan
of the Church, that they do not preſume to fell them down unadviſedly, cel, Lyon.
but when the Chancel of the Church doth want neceſſary Reparations.
Neither thall they be converted to any other Uſe, ercept the Body of
the Church doth need like Repair : In which Caſe the Parſons of
their Charity thall do well to relieve the parithioners with beſtowing
upon them the Came Trees ; which we will not command to be done,
but we will commend it when it is done. Stat. 35 Ed. 1. An. 1307.
If the Trees be cut down by any but the Incumbent, he may ſue Treſpaſſer
puniſhable.
ſuch Treſpaſſer in the Spiritual Court to have him puniſhed there, but
not for Damages. Mich. 13 Jac. Bellamy's Cafe. Roll's i Rep. 255.
Preſcription
Though it doth generally hold true, that the Soil and Freehold of
the Church is in the Incumbent thereof, yet if any Inhabitant, and his Iile, and to
fit there, Egoce
Anceſtors only, and none other, have ufed 'Time out of Mind to re-
pair an Iſle of the Church, and to fit there with his family to hear
Divine Service, and to bury there, this makes the Iſle proper and pe-
culiar to his Houſe, and he cannot be diſplaced or interrupted by the
Parſon, Church-Wardens, or Ordinary himſelf. But the conſtant Sit-
ting and Burying there, without uſing to repair it, doth not gain any
peculiar Property or Preheminence therein, fo that ſuch Ife being re-
paired by the Pariſhioners in common, the Parſon's, Pariſhioners, and
Ordinary's Rights remain to them. Corven's Cafe. 12 Coke. 105. Hill
.
12 Jac. B. R. Frances v. Ley. 2 Croke 366. Bootley and Bayly's Caſe.
Hobart 69. Trin. 10 7ac. C. B. Garven v. Pim. Godbolt 200. Mich.
11. Jac. May v. Gilbert. 2 Bulſtrode 150. Mich. 12 Jac. Day v.
Beddingfield, &c. Noy 104. Mich. 17 Jaic. Dawtree v. Dee. Palmer 46.
For
to rcpair an
382
The Clergy-Man's Law: Or, Chap. XXXIX .
cato in
Church,
How the
Scats are
For the Reaſon of any perſon's Propriety in an Ifle is from the Pre-
Churches. , ſcription to repair and uſe it alone; becauſe it is from thence
pre-
fumed, that the Iſle was erected by him whoſe Eſtate he hath, with
the Affent of the Parfon, Patron and Ordinary, to the Intent to
have it only to himſelf, as is ſaid in Corven's Cafe. 12 Coke 105.
Mich. 10 Jac. Prin. v. Gorven. Moor 178.
Proprietor of When
any
Perfon hath good Title to an Iſle adjoining to a Church,
an life ad if the Ordinary doth place another Perſon in a Seat therein with the
to a
Proprietor, the Proprietor may have his Aậion upon the Cafe againſt
the Ordinary; and if he be impleaded in the Spiritual Court for ſuch
Seat, a Prohibition will lie, by Coke. Trin. 10 Fac.C. B. Garven v. Pim
Godbolt 200. Or if any
private Perſon doth fit in ſuch Seats, or keep
out him that hath the Right, or doth bury his Dead there without
his Confent, an Action upon the Caſe doth well lie for the Proprietor.
Trin. 10 Jac. Dawney v. Dee, and others. 2 Croke 604. And yet it
ſeems, that the Freehold of ſuch Ille is only in the Incumbent. Daw-
tre and Dee's Cafe. Trin. 18 Jac. Palmer 46.
Though the Freehold of the Body of the Church be in the Incum-
bent thereof, and the Seats therein be fixed to the Frechold, yet be-
common to cauſe that the Church is dedicated to the Service of God, and is for
the Uſe of the Inhabitants, and the Seats are erected for their more
convenient attending upon Divine Service, the Uſe of them is common
to all the People that pay to the Repair thereof: And for this Reaſon,
if any Seat, though affixed to the Church, be taken away by a Stran-
ger, the Church-Wardens (and not the Parfon) may have their Açtion
againſt the wrong Doer. 8 H. 7. 12, But the Authority of appointing
what Perſons ſhall fit in each Seat is in the Ordinary, who is to take
Care to prder all Things appertaining to Divine Service, ſo that the
Service of God may be beft celebrated, that there be no Contention
in the Church, and that all Things be done decently and in order
for he having the Cure of Souls, it is preſumed by the Law, to be a
Perſon that will have a prudent Regard to the Qualities of Men in
this Cafe, and to give Precedence to ſuch as ought to have it, and
with this agrees 8 H. 9. 12, and Corvin's Cafe. 12 Coke 105, and by
Hutton. Pafch. 4 Car. C. B. Eaton y. Ayliff. Hetley 94, and by Coke.
Brownlow and Gouldsborough 1. p. 45, and by Coke in Garden and
Pim's Cafe. Trin. 10 fac. Godbolt 200. Mich, 11 Jac. B. R. May
v. Gilbert. 2 Bulftrode 150. Boothly and Bayly's Cafe. Hobart 69.
Seats in the 'Tis ſaid indeed in Pin and Gorwin's Cafe. Mich. 10 7ac. Moor 878,
Body of the to be held by the Juſtices, that Seats in the Body of the Church are
theOrdinary. diſpoſable by the Parfon and Church-Wardens. But this may be un-
derſtood in ordinary Cafes, when no Contention or Diſſatisfaction is
about this Matter, and the Ordinary will not interpofe becauſe none
complain, or elſe this Cafe is miſreported. For all the Books are,
that, generally ſpeaking, the Power of Diſpoſal of Seats in the Body
of the Church is in the Ordinary; and ſo it is ſaid to be held by the
Juſtices in this very Cafe, according to Coke's Report of it, where it
is called Corven's Cafe. 12 Coke .105, and according to Godbolt's Rc-
By Cuſtom ports 200, where it is called Garven and Pin's Cafe. But by Cuſtom
may be in the the Church-Wardens may have the ordering of the Seats, as in Lon-
don, which by the like Cuſtom may be in othér Places, as was admit-
ted in Langley and Chute's Cafe. Hill. 30 and 31 Car. 2. C. B. Ray-
inond 246. Brabin v. Tredennick. Paſch. 16 Jac. B. R. Roll's 2 Abr,
288. N. 7. Poph. 140. Same Cafe Roll's 2 Rep. 24. But the Church-
Wardens
i
Church-war-
dens,
3
Chap. XXXIX. The Complete Incumbent.
383
cel of a Mo-
8. as a Pariſh
great
Wardens muft ſhew fonie particular Reaſon why they are to order the Seats in
Churches.
Seats excluſive of the Ordinary; for a general Allegation, that the Pa-
riſhioners have uſed to repair and build all the Seats in the Church,
& ratione inde the Church-Wardens have uſed to order and diſpoſé
of the Seats, is not ſufficient to take away the Ordinary's Power in
diſpoſing and ordering the Seats, becauſe this is no more than the Pa-
riſhoners are bound to do of common Right, (viz.) building and re-
pairing the Seats ; for which they have the Eaſement and Conveniency
of fitting in them. Hill. 30 and 31. Car. 2. B. R. Greaterchy va
Beardſly. 2 Levinz 241.
If a Lay-man by the Diſſolution of Monaſteries hath a Monaſtery Church Par-
in which is a Church Parcel of it, and he ſuffer the Pariſhioners for
naftery uſed
Sixty Years to come thither to hear Divine Service, and to uſe it as
their Pariſh-Church; that ſhall give Juriſdiction to the Ordinary to Church.
diſpoſe of the Seats; becauſe in Fact, by the conſtant Ufage and Suffe-
rance of the Proprietor, it is become the Pariſh-Church, although ben
fore it was not ſubject to the Juriſdiction of the Ordinary, Quere. But
if the Proprietor, or Patron himſelf, hath uſed to diſpoſe of and order
the Seats, by placing Perſons therein, in ſuch Caſe the Ordinary can-
not diſplace ſuch Perſons, becauſe the Proprietor, or Patron, hath uſed
during all the Time that it hath been uſed as a Pariſh-Church to
have the placing in this Seat. Trin. 12 Jac. Buzard's Cafe. Roll's a
Abr. 288.
But the great Queſtion is, Whether all the Seats in that Part of the The
Church which is common to all the Pariſhioners, and repaired by them, Queſtion as
be at the Diſpoſal of the Ordinary, or whether fome may not belong the Body of
to private Perſons, ſo that the Ordinary may not diſplace them, if he the Church.
fee Cauſe. Some Cafes are, that the Biſhop may diſpoſe of all fuch
Seats ; and Firſt, it is ſaid to be held by the Juſtices, that a Perſon
cannot preſcribe for a Seat in the Body of a Church. Mich. 10 Fac.
Pin and Gorwin's Cafe. Moor 878. And after, when a Prohibition
to the Eccleſiaſtical Court was ſued for upon Surmiſe of a Title by
Preſcription to a Seat in the common Part of the Church, all the Ju-
ſtices are faid to anſwer, That for the Title, they were not there to
meddle with it, this being for a Seat in the Church : And again being
further prefſed in the Matter, all of them faid, That they would not
meddle with the deciding of ſuch Controverſies for Seats in the
Church, but would leave the fame to them to whom it more proper-
ly belonged. But if the Seat be in an Iſle peculiar to any Perfon, the
Iſle and Scat being repaired and uſed Time out of Mind, or the Scat
being built in ſuch Ine by any Perſon with the Conſent of all Qgorunuz
Intereſt, Remedy for Diſturbance ſhall be at Common Law. Mich.
II Jac. B. R. May v. Gilbert. 2 Bulſtrode 150. And it is faid,
that a Pew cannot belong to an Houſe. Brownlow and Gouldsborough
1. pag. 45.
Contrary to this, it is ſaid to be held by the whole Court, that if Écontra upda
a Perſon hath uſed Time out of Mind, at his own Coſts only, to tion to remo
maintain a Pew in repair, and had therefore had the fole Uſe of it, pair, &c.
the Preſcription is a Warrant for a Prohibition, in caſe ſuch Perſon
be ſued in the Eccleſiaſtical Court to be diſplaced, though the Pew
be ſituated in the Body of the Church; and that no Man can challenge
a Seat as peculiar to himſelf without ſuch ſpecial Reaſon, although The Reaſon.
one Perſon or Family hath uſed Time out of Mind to fit in the ſame,
and none others. Boothly and Bayly's Cafe. Hobart 69, and by Coke in
Coroana
384
The Clergy-Man's Law : Or, Chap. XXXIX.
Where pro-
Seats in Corven and Pim's Cafe. Trin. 10 Jac. C. B. Godbolt 200. Roll's 2
Churches.
Abr. 288. N. 3. Yet contrary to all the aforeſaid Caſes, it is ſaid
by Coke to be reſolved generally in the Star-Chamber. Paſch. 10 Jac.
betwixt Hulley and Catharine Leyton and others, that if a Man hath
an Houſe in any Pariſh, and that Time out of Mind, he, and all
thoſe whoſe Eſtate he hath, have uſed to have a certain Pew in the
Church, and the Ordinary will diſplace him, he ſhall have a Prohi-
bition, for if he hath it by Preſcription, he hath as good Right in the
Seat, as he hath in his Houſe. Corven's Caſe. 12 Coke 106, and this
ſeems to be now reſolved and ſettled. Trin. 14 Car. 2, and Paſch,
16 Car. 2, in Buxton and Bateman's Cafe. 1 Siderfin 88. 201. Raya
mond 52. í Keble 345, and in the Caſe of Crook and Uxon v. Samſam.
Mich. 18 Car. 2. B. R. 2 Keble 92, and a Difference made between
an Action of the Cafe for a Diſturbance, and a Prohibition ; for in an
perly an Action of the Caſe, the plaintiff may entitle himſelf without alledging
where a Pro- any Reparations; but to have a Prohibition, which is to out the Or-
hibition lics. dinary of his Juriſdiction, there, Reparation ought to be ſhewed:
Sce Paſch. 28 Car. 2. B. R. Marchant v. Whitpain. 3 Keble 754.
Trin. 23 Car. 2. C. B. Bradbury v. Burch. Sir Thomas Jones's Re-
ports 3. 3 Inft. 202. Mich. 34 Car. 2. C. B. Ahlý v. Freckelton. 3 Le-
vinz
73.
And in an Action of the Cafe for Diſturbance to a Seat,
if the plaintiff do preſcribe to have the ſole Ufe or the Sitting in the
Seat, he need not be ſo very exact in his Preſcription, the Action being
brought againſt a Wrong Doer, a Poſſeſſion is ſufficient for the Plain-
tiff to maintain ſuch Action, for where the Plaintiff declared, that he
was feifed in Fee of a Houſe, and that he and all thoſe whofc Efrate
he had in the ſaid Houſe, had a Seat in the Church which they had
repaired as often as was neceſſary, and that the Defendant had di-
ſturbed him in ſitting there; this was held a good Declaration, al-
though the Plaintiff did not directly ſet out, that he, and thoſe whoſe
Eſtate he had, had enjoyed the Seat. Paſch. 29 Car. 2. B. R. Marchant
v. Whitepain. 2 Levinz. 193.
And it hath been further adjudged, that a Perſon may not only
claimthe up claim by Preſcription a Seat as peculiar to him, but the upper Part of
a Seat, and in the Chancel as well as in the Body of the Church ; and
an Action upon the Caſe lieth for it at the Common Law. Noy 129.
But if there be any Contention about the Priority, the Biſhop may
inhibit them from making a Diſturbance, until the Controverſy be tri-
ed, viz. in the Temporal Court, and excommunicate the Diſturber.
Hatton's Cafe. Latch. 116, and Hill 22 7ac. Carlton v. Hutton. Noy
78, and Palmer p. 424. See Trin. 14. Car. 2. B. R. Buxton and
Bateman's Caſc. i Siderfin 89.
Preſcrip-
Now after this, to ſpeak my own Thoughts, I conceive that the
tions to have Ordinary had anciently the Power of placing the Pariſhioners in ſuch
Sears as be- Seats at leaſt as are ſet in that Part of the Church repaired by the Pa-
Houses, are riſhioners, according to 8 H. 7. 12, and that Preſcriptions to have
not rea fona- Seats as belonging to Houſes, and the Ordinaries Power to give Ti-
tles (which are the Riſe of ſuch Preſcriptions) are but lately talked
of; for I cannot find in the old Books any Mention of ſuch 'Titles by
Preſcription, or Power in the Ordinary. And it ſeems to me, that the
Ordinary hath no ſuch Power, and that ſuch Preſcriptions are not rea-
fonable; for firſt, it hath been adjudged, that if an Ordinary doth
make a Grant of a Scat to one and his Heirs, it is not good, and the
Reafon given is, That a Scat cannot belong to a Perſon but to an
Houſe,
One may
a Scar.
ز
It ſeeing that
blc.
4
Chap. XXXIX. The Complete . Incumbent.
385
Houſe, for otherwiſe when a Perſon goes out of a Town to dwell in Seats in
another Place, yet he ſhall retain the Seat, which is unreaſonable. Churches.
Paſch. 16 Jac. B. R. Brabin and Trudum's Cafe. Pophami 140, the
fame Cafe. Roll's 2 Abr. 288. N. 7. So the Queſtion being, whether
a Preſcription be good to an Ifle in a Church, as belonging to a Ma-
nor where the Party had no Dwelling Houſe but only Land? This
Queſtion was not reſolved, but the Court inclined that ſuch a Pre-
ſcription was not good. Hill. 29 and 30 Car. 2. C. B. Shambrok v.
Fettiplace. 2 Modern Rep. 283. And if the Ordinary may not make
a grant of a Seat to a Perſon and his Heirs, I fee not how he can make
any
fuch Grant to bind Pofterity, for he cannot make a grant to an
Houſe (not Things, but Perſons only, being capable of grants): See if the Ordi-
Hain's Caſe. 12 Coke 113. If it be ſaid, that the Grant may be good nary's Grant
to the preſent Poſſeſſor of an Houſe, and to the Perfons that in after may bind
Poſterity.
Time ihall be the Poffeffors of ſuch Houſe, as a Privilege annexed
to that Houſe ; yet this Grant appears to be as unreaſonable, as if
it had been made to a Perſon and his Heirs, for if by the Ordina- It ſeems nn-
ry's Gant, it may belong to an Houſe, it muſt belong to the Owners reaſonable.
of the Houſe, and muſt go with the Houſe to a perſon and his
Heirs ; and fo a Grant to the preſent and future Poſſeſſors of an
Houſe, and to a Perfon and his Heirs, will have the ſame Inconve-
nience. For the Owner of an Houſe may remove into another Pan
riſh, and liave no Tenant, and yet retain the Seat, if it may by
ſuch Grant belong to an Houſe. And if the Ordinary may appropri-
ate one Seat to an Houſe, he by the fame Reaſon may appropriate all
the Seats in the Church to ſeveral Houſes, and ſo no Room would
be left for the other Inhabitants. And if the beſt and upper Seats only
be appropriated, Perfons of greater Quality could not be ſeated but in
inferior and remote Places of the Church, the beſt Seats by ſuch means
being taken up, and it may be only by mean Tenants or Servants li-
ving in ſuch Houſes, unto which they are ſaid to belong, which are
ſhameful Inconveniences. Alſo it is ſaid, that though the Freehold
of the Church be in the Incumbent, yet the Uſe of the Church
to hear Divine Service is common to all the Pariſhioners. Corven's Cafe.
12 Coke 105. And therefore, I ſee no Reaſon why the Ordinary
ſhould have power to appropriate the Uſe of any Part thereof to the
Poſſeſfors of any particular Houſe, (to wit) either by licenſing any Per-
Either by
ſon to build a Seat therein for himſelf and the Poſléſſors of his Houſe Licence to
only, or by granting in ſuch Manner any Seat formerly built, ſuch build, or by
Seat being preſumed to be built at the Charge of the Pariſhioners in
common, and for their Benefit in common. And if the Biſhop hath
not ſuch Power of granting, I fee not how a Prefcription to have a
Seat as belonging to an Houſe can have any juſt Commencement ;
and if there be no Means by which a Title to a Seat can have a le-
gal Beginning, it ſeems ſtrange that Preſcription ſhould be admitted
as the Evidence of that which never could have a legal Beginning or
Being, viz. a legal Title; and therefore in my Opinion, according to
Therefore
the firſt Sort of the before-mentioned Caſes, it is moſt confonant to Preſcriptions
Reaſon, that a Perſon ſhould not preſcribe for to have a Seat in the unreaſona-
conimon Part of the Church as peculiar to his Houſe, and that the
Temporal Courts are not ſo proper to meddle with the Deciding of
Controverſies about fuch Seats, but that the Ordinary only ought to
determine them, and to place the Inhabitants of every Pariſh within
his Juriſdiction according to his Diſcretion. Yet if a Perſon with his
Faniily only have uſed 'Time out of Mind to ſit in a Seat, and to repair
PPP
thc
Grant.
ble.
cm
386 The Clergy-Man's Law: Or, Chap. XXXIX.
Deato in
Churches
Prohibition
to the Ec-
clefiaftical
Alſo for the
unreaſona-
ble.
may
Der Sofa
the ſame at his proper Coſts, and being ſued in the Spiritual Court to
be removed, doth ſurmiſe their Sitting, and Repairing; no doubt but
that he may obtain a Prohibition, and that ſuch Preſcription will be
allowed to be a good 'Title. But the Surmiſe of ſitting alone in a
Seat, Time out of Mind, without a Surmiſe of Repairing, will not
be ſufficient for a Title to have a Prohibition, as hath been before
ſhowed.
But if a Suit be commenced in the Eccleſiaſtical Court for a Seat
upon the Account of Preſcription, a Prohibition will lye for the Party
Court pro Def. ſued, becauſe whether the Preſcription be good or not, is not in the
Spiritual Court to judge. Hill. 5 Jac. B. N. Noy 1 29, and by Coke
Plaintiff as to in Garven and Pim's Cafe. Godbolt 200. And it is ſaid, that the
Coſts, if Suit Plaintiff in the fame Suit, if it go againſt him, may, as it ſeems,
goes againft have a Prohibition as to the Coſts, becauſe the Suit is Coram non Ju-
him in Spiri.
tual Court,
dice as to the Principal. Paſch. 4. Jac. C. B. Eaton v. Ayliff Hetley
which ſeems 94. But I cannot be ſatisfied with this laſt Opinion, viz. that where
the Plaintiff Libels in the Spiritual Court upon a Cuſtom or Preſcrip-
tion, and it be found againſt him that there is no ſuch Cuſtom or Pre-
fcription, and Coſts given ; that he ſhall have a Prohibition to free
and diſcharge himſelf from thoſe Coſts; for the Spiritual Court
in ſeveral Caſes proceed upon Libels grounded on Preſcription, where
the Preſcription is not denied, ſo that ſuch Suits are not abſolutely Co-
ram non Judice. The Reaſon why, a Prohibition ſhall be granted
where Preſcription or Cuſtom is denied, I take to be, that the Notion
of Cuſtoms and Preſcription is different by the Eccleſiaſtical Law
from what it is at the Common Law, as to the Time in which ſuch
Cuſtom or Preſcription may be created; for the Eccleſiaſtical Law al-
owns no Time in ſuch Cafe, but that whereof there is no Memory
But Aliter, if of Man to the contrary. Therefore the Common Law will not ſuffer
the Spiritual Courts to try Preſcriptions, whereby they might affect
proceeds to
and charge Perſons Inheritances by adjudging them to be good, which
and where by the Common Law are no Preſcriptions. But where the Cauſe doth
diſcharge the proceed to Sentence, and the Spiritual Judge doth Decree that there is
Plaintiff of not any Preſcription ſufficient in their Law, and by Conſequence can
be none of an elder Date allowed by the Common Law, the Rea-
fon the Common Law proceeds upon in granting Prohibitions in ſuch
Suits, totally fails in this Caſc, and the Plaintiff ought not to be aid-
ed by a Prohibition to diſcharge himſelf from thoſe Coſts given againſt
him for his groundleſs and vexatious Proſecution; and the Prohibition
can in ſuch caſe be of no other Uſe, or to any other Purpoſe, than to
diſcharge the Plaintiff of thoſe Coſts, which both in Law and Con-
fcicnce he ought to pay.
Upon Tryal
Alſo this Title to a Seat is triable at Common Law by Action upon
at Common the caſe. Hutton's Cafe. Latch 116, and Hill. 22 Fac. Carlton v.
Hutton, Noy 78. and Buxton and Bateman's Cafe. I Siderfin 88, 241,
and Bradbury v. Burch. Sir Thomas Jones Rep. 3, and Marchant and
Whitpain. 3 Keble 754. And it is agreed that the Plaintiff need not
ought to ſhew any Reparation in his Declaration, yet he ought to prove Repa-
prove Repa- ration in Evidence, by Hales Ch. Baron in Stephen's Cafe. 16 Car. 2.
1 Siderfin 203. But if a Man with the Affent of the Ordinary doth
fet up a Seat in Navi Ecclefiæ for himſelf, and another doth pull down
or deface it, Treſpaſs vi o armis doth not lye againſt him, becauſe
the Cauſe
Sentence,
Colts.
Law.
Plaintiff
.
2.
the
Chap. XXXIX. The Complete Incumbent.
387
the Timber.
or feveral.
the Freehold is in the Parſon, and ſo the only Remedy is in the Ec- Seats in
Churches.
cleſiaſtical Court, by Coke in Garven and Pim's Cafe. Irin. 10 Fac.
Godbolt 200. See May and Gilbert's Cafe. Mich. 11 Jac. B. R. 2 Bulſt.
151,
and Mich. 17 Jac. B. R. Dawtrie v. Dee. Palmer 46. Roll's 2
Rep. 139. And yet when an Action of Treſpafs was brought againſt
Church-Wardens for a Seat broken down by them, becauſe it was ſet
up by a private Perſon without the Licence of the Ordinary, it was
adjudged, that though Church-Wardens might well remove Scats in
the Church at Pleaſure, yet they cannot cut the Timber of them, I in remo-
and therefore the Action lies. Trin. 2 Jac. Gibſon v. Wright, &c. Noy Church-war-
108. I ſhall not queſtion the Law of this Cafe, but thus much is to dens inay cut
be ſaid againſt it, that the Freehold being in another Perſon, the An-
nexing of a Seat thereto ſeems to make the Seat to be a Part of the
Freehold, and ſo to be in him in whom the Freehold is, and the Uſe
of it in them that have the Uſe of the Church ; and if ſo, then the
Breaking the Timber could be no Wrong to him that had no legal
Right in them after they were faſtned to the Freehold, and became as
other Seats of common Uſe, and at the Diſpoſal of the Ordinary. Vide
8 H. 7. 12.
If two pretend to have Title to a Seat by Preſcription, and there- Where the
upon jointly bring an Action upon the Caſe for a Diſturbance, and de- A&tion ought
to be joint
clare upon a joint Right and Preſcription ; if upon the Evidence it
ſhall appear, that they are not Jointenants, but Tenants in Common,
they cannot recover, but muſt be nonſuited, for that ſuch Evidence
doth not maintain the Title upon which they bring their Action, and
as Tenants in common they cannot make a joint Preſcription, but
ought to preſcribe ſeverally; by Lea, Haughton and Chamberlain a-
gainſt Croke and Dodderidge. Paſch. 19 Jac. B. R. Sir Henry Snel-
grave v. Brograve. Palmer 161, and Bendl. 89.
Another Queſtion may be, Whether the Ordinary may place in the If the Ordi.
Seats erected in the Chancel, which is uſually repaired by the Rector nirge may
or Proprietor? As to which, 'tis reported, that Coke faid, That for the Seats in the
Body of the Church the Ordinary is to place and diſplace ; but the Chanccl.
Chancel is the Freehold of the Parſon, and is Parcel of his Glebe.
1 Brownlow and Gouldsborough 45. By which he ſeems to intend,
that the Power of placing and diſplacing, as to the Seats in the Chan-
cel, is in the Parfon, and yet no ſuch thing may be collected from
his ſaying that the Freehold of the Chancel is in the Parſon, and is
Part of his Glebe, for the Freehold of the Church is alſo in the Parſon,
and yet the Ordinary hath the Authority of ſeating therein. Nor is
the Parſon's Repairing the Chancel any Reaſon of outing the Ordinary
of his Juriſdiction there, as in Illes or Chancels built by Perſons of
Quality; becauſe the Chancels repaired by Rectors, Impropriators, or
Appropriators, were with the Body of the Church at firſt erected for
the Uſe of the Pariſhioners; and ſo we ſee they have the Uſe of them
in Common ; the others are for private Uſe. And the Parſon by re-
pairing doth no more than what he is bound to do of common Right,
nay, by the Canon or Common Law of the Church, the Perſon that
receives the Profits of any Church is bound to repair the wholc Church,
and fo is the Practice in all Countries but in England, whers Cuſtom
only doth transfer the Burthen of repairing the Body of the Church,
and fencing of the Church-Yard upon the Pariſhioners
. The Church-
Wardens of Denford's Cafe, Noy 41, and in ſome Places (as in Lon-
don) of repairing the Chancels alſo, to which Linwood gives Teſtimo-
Рpp2
ny,
ز
388 The Clergy-Man's Law : Or, Chap. XXXIX.
Church Mer ny, De officio Archidiaconi C. Archidiaconi v. reparatione 6. de Ex-
pairs,
clefiis Edificandis Coli Rector v. defectus Eccleſia. And therefore,
unleſs it might (as it may not) be truly ſaid, that the Incumbents of
Churches in other Countries, where they repair the whole, have ſolely
the Authority of placing, and diſplacing, in all Seats that be or may
be in thoſe Churches, there is no Reaſon to think that they are to Seat
in the Chancel with us, becauſe they repair the ſame by the fame
Law and
upon the fame Conſideration, that the Incumbent in Foreign
Parts repair the wholc Churches, viz. of receiving the Profits of the
Church: Or unleſs it might be truly faid, that becauſe the Pariſliioners
with us repair the Body of the Church, the Biſhop may not meddle
to place or diſplace them therein. I ſee no Reaſon but that he
may
place in the Chancel, altho that it be repaired by the Parfon, nay,
Parſon re-
the Reaſon from the Pariſhioners repairing is ſtronger againſt the Or-
pairs of Com- dinary, than from the Parfon's Repairing: For the Parfon, Appro-
mon Right; priator, or Impropriator repairs of Common Right, (for opus ibit cum E-
ners by Pre- wolumentis, is the Canon Law in this Cafe) but Pariſhioners by Pre-
fcription. ſcription only, which might more playſibly be alledged as the Confi-
deration, or firſt Reaſon of ſuch Liberty; eſpecially, if the Parfon had
repaired what they do, fuch. Power fhould have been in him, as it
muſt be ſuppoſed to be, if he from repairing hath the Right of Seat-
ing in the Chancel : But it appears to be otherwiſe as to the Body of
the Church, for that it was originally and of Common Right in
the Parſon; the Peoples undertaking that Burthen that would otherwiſe
have been on Incumbents, could not place this Authority in a third
Party, viz. the Biſhop; and therefore one might conclude, notwith-
ſtanding the Parſon's Repairing, c. that the Ordinary hath this Autho-
rity and Juriſdiction of Common Right, as to both Church and Chan-
cel, though the Freehold of both be in the Incumbent, or Incumbents,
and the Repair of the Chancel be upon the Parſon, and of the Body
of the Church upon the Pariſhioners; yet the Law as I take it is fet-
tled to the contrary, that unleſs & Seat be in the Body of the Church,
the Ordinary hath nothing to do with it. Brixton and Bateman's Cafe.
1 Siderfin 88. However, it is fàid, that if there be an Impropriator,
he, and in Confequence bis Farmer of Common Right, ſhall have
the chief Seat in the Chancel, becauſe he ought to repair it, but by
Prefcription another Perſon may have it, as belonging to his Houſe,
Trin. 7 Fac. Sir William Hall v. Ellis. Now 129, the Privilege of an
Impropriator in the Chancel being by reaſon of his repairing, it is to
be known what Remedy there is by Law to conipel him to repair, if
he neglect or refuſe to do it; as to this, I find it is ſaid to be the O-
If the Impro- pinion of the Court of Common Pleas, that the Spiritual Court may
priator does grant Sequeſtration upon an Impropriate Parſonage for not repairing
not repair the Chancel
. Mich. 29 Car. 2. 3 Keb. 829, yet by another Book 'tis
the chancel
, faid, that the Court of Common Pleas did incline that there could
may be a Se- be no Sequeftration, for being made Lay-Fec, the Impropriation was
queſtration. qut of the Juriſdiction of the Court Chriſtian, and they were only to
proceed againſt the Perfon, as againſt another Lay-man for not repair-
ing the Church, Trin. 2.2 Car. 2. C. B. Anonimus. 2 Ventris 35,
and by the fame Cafe as reported, 2 Modern Rep: 257, 'tis faid, that
the whole Court beſides. Atkins were of that Opinion. See i Moderni
If the Pa- Rep. 258.
not repair
As to the Repairing of the body of the Church, the Spiritual Court
the Body of why coimpel the Parishioners to do it, and may excommunicate every
riflioncrs do
the Church.
4
one
Chap. XXXIX. The Complete Incumbent.
389
pairs.
the Church.
1
one of them till it be repaired, and thoſe that are willing to contri- Church Bea
bute muſt be abſolved till the greater Part agree to make a Tax;
but the Spiritual Court caunot alleſs them towards it; neither can the
Kings Court
, or the Juſtices of Peace; or the Church-Wardens alone;
impoſe a Tax for it; but the Pariſhioners ought to be fummoned by
the Church-Wardens to meet and agree to lay a Tax to do it, and if
they refuſe or neglect to meet or to make a Rate, the Church-War-
dens then may make a Rate alone if needful, and if a Rate be iš-
legally impoſed, as by a Commillion from the Biſhop, Co without
the Pariſhioners Conſent, yet if it be after aſſented to, and confirmed
by the major Part of the Pariſhioners that will make it good. Hill
:
26 and 27 Car. 2. C. B. Rogers v. Duvenant. 1 Mod. Rep. 194, and
1 Ventris 167, the Church-Wardens in ſummoning the Pariſhioners
need not do it from Houſe to Houſe, but a general publick Summons
at the Church is ſufficient, and the major Part of them that appear Summons ac
upon ſuch Summons, will bind the whole Pariſh. If the Church and
Chancel be out of Repair, the Pariſhioners are only chargeable to the
Repairs of the Church. But a Libel in the Spiritual Court, or a
Tax pro reparatione Eccleſid, is well enough, though the Word Eccle- Tax pro repas
fia may include the Chancel as well as the body of the Church, yet ratione Eccle-
fie.
ſhall be intended for the Church only ; but if any Money raiſed for
repairing the Church be laid out upon the Chancel, the Pariſh ought
not to allow it to the Church-Wardens in their Accounts, nor ſhall
they be compelled to pay any Tax for the Repairs of the Church and
Chancel. If the Church be down, and the Pariſh increaſed, ſo that
of Neceſſity there ought to be a larger Church, the major Part of the
Pariſh may lay a Tax for the enlarging it, as well as the repairing of
it. See for theſe Matters, Paſch. 29 Car. 2. C. B. I Mod. Rep. 236.
2 Modern Rep. 222. Paſchi 5 Car. 1i C. B. Webb's Cafe. Littletoiz
Rep. 263. Poph. 137.
Though it be before faid, fol. 295, that the Freehold of the Church Frcetold of
is in the Incumbent, and that if the Windows of the Church be bro- the Church
ken, the Parfon may have his Action for it at the Common Law; yet cumbens,
the Ordinary may deface any ſuperſtitious Pictures, as, is ſaid by itray
Chief Juſtice to have been done in Pricket's Cafe. And if any other
do it without the Ordinary's Licence, he may be bound to his good
Behaviour. Mich. 12 Jac. Day v. Bedding field. Noy 1042 And this
I ſuppoſe is to be extended to the Parſon himſelf; ſo if any Coats of
Arms be placed in any Windows, or Grave-ſtone or Monument in any
Church or Church-Yard, neither Parſon, Church-Wardens; or Ordina-
ry may break down or deface the ſame; and if any of them do, the
Heir by Defcent intereſted in the Coat may have his Action upon the
Caſe againſt them. 9 Ed. 4. 14. Mich. 10 Jac. B. Pim's Cafe. Roll's
Abr. 1. p. 625. Mich. 12 Fac. Day v. Bedding ford, &c. Noy 104.
Hill. 12* Jac. B. R. Frances v. Ley's. 2 Croke 367 ; or fo may the
Party that ſet them up, being the Executor, although they be fixed
to the Freehold of the Parfon. 9 Ed. 4. 14. Corven's Cafe. 12 Coke 105.
1 Inft. 18.b. But as to Monuments fet up in the Church, the Caſe is
to be underſtood of fnch only as are ſet up in thc Illes belonging to
particular Perſons, according as it is explained by Coke in May and
Gilbert's Cafe. Mich. 11 fac. B. R. 2 Builſtrode 151. Trin. 18 fac.
€. B. Garven and Pim's Cafe. Godbolt 200; or if ſet up in any
Part of the Church ; I ſuppoſe, 'tis to be underſtood, that they were
placed there with thc Incumbent's Confent; but the Reaſon given in
the
in the In-
any other
390
The Clergy-Man's Law: Or, Chap. XXXIX.
Mehurchi
Boods.
Conſent to
Church.
Parishioners.
4.
the Caſe aforeſaid, for the faid A&tion, viz. becauſe the Church
is free to all the Inhabitants to bury in, is not true, for none can bury
AstoParson's in the Church without the Parfon's Confent, per Curiam. Hill. iz
Jac. B. R. Frances v. Ley. 2 Croke 367. Mich. 12 Jac. Day. v. Bed-
bury in the
dingfield. Noy 104.
What Goods : However, the Goods of the Church, as Chalice, Surplice, &c. do
belong to the
not belong to the Incumbent, but to the Pariſhioners, 11 H. 4. 12, and
if they be taken away, or broken, the Church-Wardens fhall have
their Action of 'Treſpaſs at the Common Law. Bellainie's Cafe. Roll's
1. Rep. 255. 31 Ed. 3: 3. Br. Corporations, &c. 55, 73, 84. 11 H.
12. 37 H. 6. 30. Therefore, when the Parfon ſued in the Spiritual
Court for the Organs taken out of the Church, a Prohibition was a-
warded. Trin. 12 Jac. Buckfale's Cafe. Roll's i Rep: 77. Kitchin's
Juriſdiction of Courts. Tit. Wardens of Churches. fol
. 378. And if
the Church-Wardens for the Time being neglect to bring an Action
for any of the Goods of the Church taken away, their Succeſſors may
bring Treſpaſs for them in reſpect of their Office, as was reſolved
per
Curiam. Hill
. 31 Eliz. C. B. Church-Wardens of Fotherſton's Cafe.
1 Leonard 177. But then the new Church-Wardens muſt ſay, ad
damnum Parochianorum, and not ipforum, though the old Church-
Wardens in whoſe Time the Goods were taken might ſay either. Paſc.
32 Eliz. B. R. Hadman and Green v. Ringwood. 3 Croke 179. 8 Ed.
4.6. Br. Corporations, &c. 55, but by Frowick. 12. H. 7. 28, the new
Church-Wardens fhall not have the Action for ſuch Treſpaſs done to
their Predeceſſors; contrary by Yaxly; and it is faid by Newton and
Pafton, that the Executors of the Church-Wardens, in whoſe Time
the Treſpaſs was donc, ſhall have the Aation. But the Cafe in i Leo-
nard 177, is moſt to be relied upon.
Sacrilege
If the Goods of the Church be ſtolen, it is Sacrilege and Robbery,
and the Church-Wardens ſhall have an Appeal of Robbery. Br. Abr.
bery.
Appel. 31, 45. 37 H. 6. 39. And a Libel may be alſo in the Spiritual
Court againſt the Offender, pro ſalute anima e reformatione mor',
Paf. 18 Car. 2. I Welcomb v. Lake. 2 Keble 23. 1 Siderfin 281, but
not to recover Damages. 2 Inft. 492. 1 Keble 743. See Regiſter of
Writs 57. And if a Perſon doth in the Night break the Church, and
Burglary.
enter, he is guilty of, and indictable for Burglary, as Bromley ſaid,
Paſch. Ma. Dyer 99. 6. 3 Inſt
. C. 14.
Though the Church-Wardens may have their Action, for ſuch of
demos o menys not the Pariſh Goods, yet they cannot diſpoſe of them without the Con-
Goods with fent of the Pariſh, and a Gift of ſuch Goods by them without the
Conſent of the Sidemen or Veſtry is void, as was ſaid in Methold and
Winn's Cafe. 3 Bulftrode 264. And though, as hath been ſaid, the
Goods of the Church do belong to the Pariſhioners, yet they cannot
have an Action of Account againſt the Church-Wardens for waſting
any of them, but muſt make new Church-Wardens, and thoſe new
Church-Wardens may bring an Action of Account againſt the former.
Br. Account 71. R. 8 Ed. 4. 6. Br. Corporations, &c. 55. 4 Ed. 4.
6. Br. Garden. 7. And though a Pariſh preſcribe to chooſe tivo
Church-Wardens, and that the Perſons fo chofen ſhall continue in
that Office for two Years ; yet the Pariſh may, notwithſtanding the
Preſcription, remove ſuch Church-Wardens at their . Pleaſure, and
chooſe new ones; for as it is ſaid, the Pariſh might ſuffer great Loſs,
if the Church-Wardens ſhould continue ſo long in their Office .con-
trary to their Will, for in that Time they might waſte all the Pariſh
3
Goods
and Rob-
Church-war-
out Conſent.
Chap. XXXIX. The Complete Incumbent.
391
6000s.
Goods belonging to the Church. 26 H. 8. 5. b. Paſch. 8 Jac. C. B. Church
13 Coke 70.
If
any
evil Perſon ſhould dig up the Grave of a deceaſed Body, and Felony in t: -
take from the Corps the Winding-Sheet wherein 'tis wrapped, neither kinga Winci-
Rector nor Church-Wardens may have their Action for it, for the Pro- from the
perty doth remain in him to whom it belonged when the dead Body Corps.
was wrapped therein ; and the Wrapping the dead Body therewith
could be no Gift thereof, for a Man cannot relinquiſh the Right
which he hath to Goods, unlefs they be veſted in another, of which
a dead Body is uncapable; and the Taking thereof is Felony; reſolved
by the Juſtices at Serjeants Inn, Fleet-Street. Hain's Cafe. 12 Coke
113
wich Rectors.
Freeholdand
1
As other Perſons may have Intereſt in the Church with the Parſon, How Vicars
and in the Goods belonging thereunto, as is before ſhewed ; ſo others may ſhare
may ſhare with the Rectors of Churches, both in the Church it felf,
and alſo in the Profits thereof; of which Vicars of Churches are the
great Inſtance, who by Endowments, or Preſcription, do ſhare with
Appropriators, or Impropriators, . ( who are perpetual Rectors of
Churches) both in the Churches themſelves, and the Profits thereof.
And firſt, I conceive, that (although that the Freehold and Soil As to the
of the Chancel may be in the Appropriator, or Impropriator, eſpe- Soil of the
cially where they repair the fame, either by. Compoſition or Preſcription, Chancel,and
which is in moſt Places in England, except in London) the Freehold and Freehold and
Soil of the Body of the Church is in the Vicar, as a Part of his Glebe, Body of the
for thereof he takes Poffeffion at his Induction, by which he is Church.
ſeized of all the Profits of the Vicarage; which Way of taking Pof-
fefſion would be very ſtrange, if the Church it felf was not a Part of
that to which he hath a Right by Inſtitution, and of which he is feized
by his Induction ; alſo this appears from the Vicar's being obliged of
Common Right to repair the Church. Rolls Abr. 2. p. 337. Alſo
the Trees in a Church-Yard are ſaid to belong to the Vicar, ſo that
if they be cut down by the Parſon, or any other, and a Suit be in the
Court Chriſtian not only to puniſh the Fact, but alſo for Damages,
a Prohibition lyeth ; becauſe the Vicar may have 'Treſpafs at Common
Law; but if the Suit be not for Damages, no Prohibition ſhall be.
Mich. 13 Jac. B. R. Bellamie's Cafe. Roll's i Rep. 255. But gene-
rally ſpeaking, the Compoſition made betwixt the Parſon and the Vis
car of a Church, doth Thew, what of the Glebe, Tythes, or other
Profits thercof, do belong to the Rector, and what to the Vicar; and
without a Preſcription to the contrary, the Vicar, as well as the Par-
fon, is bound thereby, Pafch. 4 Car. in the Exchequer. Lien v. S:9:-
more. Palmer 525, and becauſe ſeveral Compoſitions may be loft, Pre-
ſcription and Uſage is much to be regarded, for the fettling of their
ſeveral Rights. Lit. Rep. 263. I ſhall therefore add ſome Caſes, to
the End that Compoſitions may be the better underſtood, and to ſhow
the Force of Preſcription as to this Matter.
Firſt, De Jure communi all Tythes and Profits of the Church 'do Vicar niuft
belong to the Parſon, although that there be a Vicar conſtituted, and ſhew how he
therefore the Vicar muſt make his Claim, either by ſhewing that he is is endowed.
endowed out of the Parfonage of that to which he pretends a Right,
or by Preſcription. March 11 Mich. 10 Jac. B. R. Reynolds v. Green.
2 Bulſtr. 27. Mich. 28 and 29 Eliz. B. R. Godbolt. Mich. 40 Eliz.
Burſdale v. Smith. 3 Cro. 633. Paſch. 2 Car. B. R. Cope v. Bedford.
Palmer 427. But though the Vicar cannot produce any Endowment,
yet
392
The Clergy-Man's Law: Or, Chap. XXXIX.
Lunnoniment
DE Ulicars.
yet
ſion.
if he can prove a conſtant Uſage and Payment, that is ſufficient
Evidence of an Endowment. Hill. 22 and 23 Car. 2. Bingham v. Ron
binſon. 2 Keb. 729. Or though the Endowment do not mention any
Glebe or Tithes to be aſſigned to the Vicar, yet if the Vicar by a con-.
ſtant Ufage hath enjoyed them, he ſhall not be concluded by their not
being mentioned in the Endowment of the Vicarage, (as it has often
been adjudged ;) for it fhall be preſumed by Reaſon of a long Pof-
feffion of fuch Glebe or Tithes, that the Vicarage hath at ſome 'Time
or other been augmented therewith, and that tho' there be no Power
reſerved to the Biſhop by the Endowment to augment or diminiſh, &c.
Augmenta- For the Biſhop may notwithſtanding augment with the Conſent, or
cion by the
Liſhop.
upon citing all Parties, tho' not without Notice or Citation, as he
may
do when he hath a Power to augment, &c. reſerved to him by the
Endowment. Trin. 15 Car. 2. Scaccar. Henry Twiſs v. Brazennoſe
College in Oxford. Blount & al. Hardres 328. And ſo it is, though
no Land is mentioned in the Valuation of the Church in the Time of
H. 8, becauſe many Particulars were omitted in that Valuation.
Coynes's Cafe. Clayton's Rep. And where no Proof of an Endowment
Long Poſſel- could be made, yet becauſe of long Poſſeſſion, the Church being pre-
ſentative, what was enjoyed was decreed to the Vicar. 9 Car. Neat
v. Lifter, and 39 Eliz. in the Exchequer Chamber. Grimes v. Smith.
Tothil 238.
Of what
If a Compoſition be made betwixt the Parſon and Vicar, that the
Tithes by
Parſon ſhall
have all the Tithes of Corn and Hay, and the Vicar all
Compoſision
other Tithes within a Parish; and after the Pariſhioners fow certain
Lands arable with Saffron, or the like, as Woad, &c. the Parſon
Shall not have the Tithes of the Saffron or Woad, c. but the Vicar.
Hill. ; Car. Tindal's Cafe. Berdloes 159. Trin. 3 Jac. per Coke faid
to be adjudged. 2 Roll's Abr. 335. So if the Vicar by Endowment
or Preſcription be to have the Minute Tithes, and the Land which
Time out of Mind hath been arable is not tilled, the Vicar ſhall have
the Minute Tithes ariſing upon the fame, for his Endowment doth
not go to the Land, but to the Tithes in any part of the Pariſh.
Paſch. 38 Eliz. B. R. Bedding field v. Freak. 2 Roll's Abr. 335. And
ſo it is although the Land had been fowed with Corn for the Space of
Forty Years next before, although it be ſaid by the Statute of 2 Ed. 6.
That Tythes thall be paid as they had been paid forty years befoze.
The like Law if arable Land be converted to an Orchard, for then the
Vicar ſhall have the Apples; and if an Orchard be turned to arable,
the Parſon ſhall have the Corn. Pafch. 38 Eliz. B. R. the Dean and
Chapter of Norwich's Caſe. Owen 74. Pafch. 38 Eliz. B. R. Bed-
dingfield v. Freak. 3 Cro. 467, and 43 Eliz. Gouldsb. 149, and More
909. Or if a Vicar by Endowment hath the Minute Tithes, and
hath for long Time uſed by force of this Endowment to have 'Tithes
of Wood of the annual Value of Six Shillings and Eight Pence, by
Reaſon of the ſmall Value of the Wood and the Uſage, Tithes of
the Wood ſhall be to the Vicar as a ſmall Tithe, although that the
Tithe of Wood in its Nature be accounted amongſt great Tithes. Mich.
Io Fac. B. R. Reynolds y. Green. per Curiam. 2 Roll's Abr. 335. Note
alſo that Woad growing in the Nature of an Herb, Saffron and Weild,
which are a kind of Graſs, are Minute Tithes, and go to the Vicar,
when he is to have Minute Tithes. i Car. C. B. Udal v. the Vicar of
Alton, and the ſame Cafe. Hutt. 77. I Cro. 28 Hill. ; Car. Tindal's
Cafe. Bendloe 159. Paſch. 38 Eliz. Bedding field v. Freak. 1 Roll's
Abr.
Chap. XXXIX. The Complete Incumbent.
393
Abr. 643. The like is to be faid of Flax and Hops. Mich. 14 Car. Jicars en-
B. R. JVeb's Cafe. i Roll's Abr. 643. So was it ruled in the Caſe of dowed.
Crouch v. Riſden. Hill. 21 and 22 Car. 2.
And that a Preſcription
to pay
ſo much in lieu of all ſmall 'Tithes ſhall extend to Hops, Dad,
Gc. i Sid. 443. 2 Keb. 612. i Ventris 61. But the Tithes of Clo-
ver-Grafs ſhall go to him that hath the Tithe Hay. Darrel v. Wi-
thers. 3 Keb. 479.
So if Tobacco be planted here, the Tithes thereof be minute Tithes; if all the
but if all the Profit of a Pariſh doth conſiſt of Things, which in their Profits con-
own Nature are minute Tithes, it is ſaid that they thereby become nute Tithes
.
great Tithes; as if a great Part of a Pariſh be fowed with Hemp,
&c. they are ſaid to be great Tithes, otherwiſe not; and in this Re-
ſpect Wool and Lamb may be ſaid to be great Tithes, and for this
Reafon Hops in Kent were adjudged great Tithes, but Hops in Or-
chards or Gardens remain minute Tithes, and a Field of Forty Acres
planted with Saffron was adjudged a ſmall Tithe. Hill
. i Car. Undal
v. Tindab. Hutton 78. But Quere, Whether Hemp, Flax, &c. be not
in their Nature to be accounted ſmall Tithes? If ſo, then the Quan-
tity of Land within any Pariſh ſowed with Hemp, &c. cannot make
thé Tithe of another Nature; and what we call fmall Tithes ſeems
to me to be in reſpect of the Thing it ſelf, and not from the ſmall
Quantity of Land fowed therewith within any Pariſh, whereby the
Tithes thereof are but fmall, and of little Value; for if that were
to be the Rule to determine what ſhall be ſaid ſmall Tithes, then
Corn, Hay, c. muſt in many Pariſhes be accounted ſmall Tithes,
which will not be affirmed.
But the Lord Chief Juſtice Holt held Flax fown in a common whether
Field to be a great Tithe ; and he did not allow any Difference, but Flax, Hemp,
that Flax, Hemp, and other ſuch like Things, growing in open Fields, or to be great
are great Tithes, be the Quantity of them more or leſs; but the three ſmall.
other Juſtices, Dolben, Gregory, and Eyre, held the contrary, that
Flax in its Nature is a ſmall Tithe, but they did not agree whether
the Quantity fowed within a Pariſh of ſuch Things, the Tithes
whereof are accounted a ſmall Tithe, ſhall alter the Nature of the
for ſome of them held, be the Quantity what it will, yet it
ſhall remain a ſmall Tithe. But in the Cafe in Queſtion, there being
650 Acres of Arable within the Pariſh, 26 Acres of which were fown
with Flax, the ſaid three Juſtices all agreed, that this was not ſuch
a Quantity of Flax fown in the Pariſh as to make it to be accounted
a great Tithe. Trin. 4 W. and M. B. R. Wharton v. Liſle. Le-
viniz 365.
If the Vicar be endowed de Decimis Garbarum growing within a De Derimis
certain Hamlet within a Pariſh, and the Endowment be made a long Garbarum.
'Time ſince, as in the Time of H. 3, and the Vicar hath uſed Time
whereof, &c. to have the Tithe as well of the Hay as of the Corn;
although that now at this Day Garba doth ſignify a Sheaf of Corn;
and as the Civilians ſay, ſignifies ſuch Thing which is bound together
by a Band, and in their Books is uſed for Corn, and not for Hay; yet
becauſe it is an antient Endowment, and the Uſage hath been ſo that
the Vicar hath had the 'Tithe of the Hay, the "Tithe thereof ſhall
be to the Vicar : For it ſhall be preſumed, that in ancient Time
Tithe Hay might be compriſed under the Word Garba, and that the
Ufc might be then to bind Hay, in Bundles ; for ſuch antient Grants are
not to be expounded according to the Law uſed at this Day, but
Tithe ;
Q99
દર -
394
The Clergy-Man's Law: Or, Chap. XXXIX.
Small
eithes.
tions are to
ed.
Vicar pre-
Tithes ex-
cept Com
according as it might be intended to be at the Time of the Grant
made. Mich. 40 and 41 Eliz. B. R. Barksdale v. Smith and Blinco.
How ancient 2 Roll's Abr. 335. Mich. 40 Eliz, Barksdale v. Smith. 3 Cro. 633.
Grants and Littl. Rep. 263. March 85. And all Compoſitions for the Endow-
Compori-
ments of Vicarages ſhall be expounded by the Judges of the Common
be expound- Law, and if the Spiritual Court meddle with that Matter, they are
to be prohibited. Littleton Rep. 263. March 87.
If a Vicar hath uſed by Preſcription, Time out of Mind, to have
fcribes for all all Tithes within a Pariſh (except Corn, which the Parſon appropri-
ate was wont to have) viz, of Hay and Hops, from the Time of H. 8,
when they came into England, and of Woad (which is a dying Plant)
c. After Rape-Seed is fowed within the Pariſh, there being not any
fuch Seed fowed there, nor in England till of late Time, yet the Vi-
car, and not the Parſon appropriate ſhall have the Tithes of the Rape-
Seed; for that it is within the Preſcription, altho' that it be a new
Thing, for which he cannot preſcribe ſingly, foraſmuch as the Parfon
is barred of all Tithes but of Corn by the Preſcription, and this is
within the general Preſcription to have all Tithes but of Corn. Paſch.
7 Car. B. R. Reſolved per Curiam upon Evidence at the Bar, in a
Cafe that concerned a Parſon and Vicar of a Pariſh in Kent, and that
there was not any Difference as to this, betwixt ſuch Endowment
which was the Grant of the other Party, and ſuch Preſcription, in
that the Preſcription doth preſume an Endowment precedent. 2 Roll's
Abr. 334.
of the
Tithes of
a Manor
Where the
Parſon can-
firſt Endow.
ment or
Alſo if a Vicar be endowed of the third Part of all the Tithes
growing and coming due within the Manor of D. he ſhall have the
Tithes of the Free 'Tenants as well as of the Copyholders, for all
make the Manor. Paſch. 38 Eliz. B. R. Higham and Beſt's Cafe.
2 Roll's Abr. 335, the fame Cafe, Owen 74, and 3 Cro. 426. But if
not preſcribe the firſt Endowment be to be ſhewed, whereby a Vicar of a Church
againſt the
is to have all the ſmall Tithes within the Pariſh, and the Parfon im-
propriate doth take the ſame, and be fued therefore in the Court Chri-
Compoſition. Itian, and thereupon doth bring a Prohibition upon Surmife of a Pre-
fcription, and then the Vicar doth come and plead the firſt Endowment,
which was Anno. Dom: 1310, whereby ſuch Tithes were allotted to
the Vicar, and the Parfon doth demur thereto, the Vicar ſhall have a
Conſultation, for that the Parſon cannot preſcribe againſt the firſt En-
dowment. Trin. 2 Jac. Rot. 520. Pringe v. Child. Noy 3. Paſch.
3 Fac. Springe's Cafe. Moor 761 and 781, for the Preſcription ought
to commence after the Endowment, which was after the Time of Li-
mitation, viz. R. 1. Roll's Abr. 2. p. 269. And accordingly, a Vicar
libclled againſt a Parſon in the Spiritual Court for Tithes allotted to
him by the Compoſition, and (the Parfon pleading Preſcription againſt
the Compolition) the Court Spiritual did allow of ſuch Plea ; but a
Prohibition was awarded for the Vicar to ſtop his own Suit: And it was
alſo decreed in Chancery for the Vicar, that ſuch Preſcription by the
Parfon againſt the Compoſition was not good; and an Injunction was
awarded for the Vicar to ſtay the Parfon's Suit for fuch Tithes li-
mited to the Vicar by the Compoſition. Paſch. 4 Jac. Pringe v. Cirild.
Moor 780.
But if a Vicar be endowed out of the Parſonage, and thereby to have
Altaragium cum manſo compententi, he ſhall by the Meaning of theſe
Parfon:ge; Words have 'Tithes of Wool, Lambs, Colts, Calves; Pigs, Gollins,
have Alvix Chickens, Butter, Cheeſe, Hemp, Flax, Honey, Fruits, Herbs, and
ginn,
ſuch
If the Vicar
be cndowed
our of the
he is ro
I
Chap. XXXIX. The Complete Incumbent.
395
ſuch other ſmall Titles, with Offerings, as ſhall be due within the small
Pariſh of which he is Vicar; for Altaragium doth comprehend not on-
Cineg
ly the Offerings made upon the Altar, but alſo all the Profit that ac-
crues to the Prieſt by reaſon af the Altar, as it was expounded by the
Civilians upon Conference had with them by John Lord Biſhop of
London. Mich. 21 Eliz. Turner and Andrew's Cafe in the Exchequer;
and after it was ſo adjudged in the ſame Court, as Blount fays upon
the Word Altaragium in his Law Dictionary, where alſo he adds fron
the Glofs in Mat. Paris, Oblationes five nummorum five panum tali
vel tali Altari, vel ex devotione vel ex conſuetudine, aut Parochianis,
aut ab extraneis fatta, Altaragii nomine cenſebantur. And if the Ufo
hath been (where the Vicar hath by the Compoſition Altaragium) to
pay to the Vicar Tithe Wood, it ought to be continued to him, other-
wiſe not. Mich. 4 Car. C. B. D. Wood and Greenwood's Cafe. Hetley
135. And ſo it was held by the Doctors, who certified that the Word
Altaragium accordingly did paſs Tithe Wool, the Uſage being ſhewed
in Evidence to be accordingly. Hill. 21 7ac. B. C. Bret and Ward's
Cafe. Winch 70. And when the Vicar entitled himſelf by the Words
[Altaragium Minuta Decimæ] to Tithe Wood, it was held by all
the Judges, that though theſe Words do not comprehend Tithe Wood,
yet becauſe the Vicar hath uſed by theſe words to have the Tithe of
Wood, (which Uſe was laid) in reſpect of the Uſage or Preſcription,
the Vicar ſhall have it, though otherwiſe it ſhould not have paſſed
thereby; and ſo 'tis ſaid to be adjudged in the Exchequer, that thefe
Words have given to the Vicar Sheaves of Corn, where the Vi-
car uſed to have them. Mich. 13 Jac. B. R. Reynolds v. Green.
2 Bulſtrode 27.
But if a Vicar be endowed out of the Parſonage with all white Vicar endow-
Tithes growing and renewed within a Pariſh, upon all the Land with-ed with white
in the Pariſh, the Vicar ſhall not from thence have Tithes of the Par-
fon's Glebe, for it is always excepted, nor ſhall the Vicar in ſuch Cafe
have Tithes of the Land that at the Time of the Endowment was
Part of the Glebe, though it be fince ſevered from it, becauſe at the
Time of the Endowment this Land was exempted out of the Endow-
ment. Trin. 38 Eliz. B. R. Blinco and Marſtor's Caſe, and Coke
ſaid it had been ſo adjudged in one Young's Cafe. 2 Roll's Abr. 335,
and if there be a ſpecial Cuſtom after the Endowment of the Vica-
rages, this is iſſuable, Blinco and Marſton's Cafe. Moor 457. Or if
a Vicar be endowed de ininutis Decimis totius Parochia, and the Globe
of the Parfon doth come by Means of the Statute of Diffolutions to
the King's Patentee, yet the Patentee, though a Lay-Man, ſhall not
pay
'Tithes to the Vicar of his Glebe, for the Words in the Endow-
ment did not give them ; but if there had been in the Endowment ex-
preſs Words, that the Vicar ſhould have the minute Tithes of the
Parſon's Glebe, it had been otherwiſe, for the Parſon himſelf ſhould
have paid them, and by conſequence the King's Patentee; otherwiſe
not. Mich. 39 and 40 Eliz. B. R. Blinco v. Baksdale. 3 Cro. 578. 29 Car. 2. c. 8.
And here we may add, that it hath been enacted, Whereas divers Of Augmen-
Archbiſhops, Biſhops, Deans and Chapters, and other Ecclefiaftical
carages, doc.
Perſons, in Dbedience to his Majeſty's Letters, bearing Date the see in the
firft Day of June, in the Twelfth Dear of his laid majeſty's Reigni, precedent
and out of a Pious Care to improve poor Uicarages and Curacies, Stat. 17 Car.
where the Endowment thereof was found too ſmall to affold a com. c. 3. for Aug.
mentation of
petent aintenance to thoſe that ſerve the Cure, bave ſince his a
poor Bene-
Q992
jeſty's fices.
.
396
The Clergy-Man's Law: Or, Chap. XXXIX.
1:07 8.
And ſee
alſo the
several Sra-
6. 24. for
ſniall Li-
Firſt-Fruits
and Tenths.
Augmenta- jeſty's happy Beturil, tipon their Renewing of Leaſes of Betojies,
02 Tythes impropriate od appropriate, made oz hereafter may make of
vers Beſervations beyond the ancient Rent, to the Intent the ſame
ſhould become payable to the ſaid Uicars oi Curates, in Augmentation
tutes of 2 & of their Endowments, which have been for the moſt part enjoyed ac:
3 Anrid. c. 2. cordingly : But in regard, that ſuch Reſervations were not made to
and 5 Anre. the Aicars ol Curates, o2 if they were, no convenient Remedy could
augmenting be had by ſuch Uicats 02 Curates foz the Recovery thereof, and then
were not at the Time thereof capable of taking any intereſt to theič
vings, by
diſcharging
own Uce, whereby the ſaid Proviſions will depend upon the good
them from Pleaſure of the Succellols, and may in Time be diſappointed,
For the Eſtabliſhment thereof, Be it enacted by the king's moſt
Cauſe of E. ercellent Majeſty, by and with the advice and Conſent of the Lords
ftabliſhment. Spiritual and Tempozal, and the Commons in this preſent Parlia
ment afembled, and by the authority of the Came, That all and every
Augmentation of what Nature Coever, granted, reſerved od agceed to
be made payable, of intended to be granted, reler ved og made payable
lince the ſaid firſt Day of June, in the Twelfth Year of his lalo na
feffy's Reign, of which thall at any Time hereafter be granted, re-
ſerved, oj made payable to any Uicar oz Curate, 02 reſerved by duay
of Increaſe of Rent to the Lellos, but intended to be to or for the
Ale of Benefit of any Wicar 02 Curate, by any Archbiſhop, Bichop,
Deant, Plovoft, Dean and Chapter, archdeaccit, Pretenoary, oz other
Ecclefiaftical Copporationi, Perſon od Perſons whatſoever, lo má.
king the ſaid Reſervation out of any Reãozy impropriate, 02 Postidit
of Tythes belonging to any archbiſhop, Bilop, Dean, P20306;
Deari and Chapter, og other Ecclefiaftical Corporation, Perfon 02
Perſons, thall be deemed and adjudged to continne and be, and ſhall
for ever hereafter continue and remain as well during the Continue
ance of the Eſtate or Term upon which the ſaid auginentations were
granted, reſerved, od agreed to be made payable, as afterwards, int
whoſe bands Coever the ſaid Rectories oz Potion of Tythes fall be
od come ; which Reñories 02 Portion of Tythes ſhall be chargeable
therewith, whether the ſame be reſerved again, or not; and the Caid
Wicarg and Curates reſpectively are hereby adjudged to be in the aqual
Poffefton thereof, for the uſe of themſelves and their Succeflois,
and the came fall for ever hereafter be takeni, received, and enjoyed
by the ſaid Wicars and Turates, and their Succellos, as well during
the Continuance of the Term oi Ettate upon which the ſaid Augmeti
tations were granted, reſerved of agreed to be made payable, as after:
wards ; and the ſaid Uicars and Curates thll have Remedy fou the
Came, either by Diſtreſs upon the Rectories impropriate 02 Potions
of Tythes charged therewith, o, by action of Debt againſt that Per-
ſon who ought to have paid the ſame, his Erecutors of Adminiſtra:
fols; any Diſability in the perſon of Perfons, Bodies Politick op
Co?pojate lo granting, oz any Diſability or Incapacity in the Wicars
01 Curates to whom, or to op for whole aile 07 Benefit the ſame are
granted, od intended to be granted, the Statute of mortniain,
any ether Law, Cultoin, of other Patter od Thing whatſoever, to
the contrary notwithlandiny.
Provifo not
Provided always, That no future augmentation be confirmed by
to exceed one Uerture of this åå, which thall erceed one moiety of the clear yearly
illoicty, etc.
Walue, above all Reprizes, of the Redoxy impropriate out of which
the ſame ſhall be granted on reſerved.
4
9110
Chap. XXXIX. The Complete Incumbent.
397
tations.
to be entred.
and to the End the ſaid Ticars and Citates may the better make Augmen-
appear the Certainty of the ſaid augmentations ; Be it enacted by
the authority afojelaid, Chat every archbiſhop, Biſhop, Dean and Leaſes to be
Chapter reſpectively, on 02 befode the fine and twentieth Day of entred in
September neft coming, thall cauſe every Leale op Ölant whtreon Louis
any quch Augmentation is nlade, to be fairly entred in a Book of
Parchment, to be kept by their reſpective Begitters for that purpoſe.
and every Déani, Archdeacon, Prebendary, or other Ecclegaftica!
Perlon reſpectively, thall cauſe every Leale ot Grant whereon any
fuch Augmentation bath been made by himſelf, hts Piedecelloz oz
Predeceſſols, to be entred in the ſaid Bøk, to be kept by the Bes
gider of the Bifhop of the Diocefe ; for the entring whereof mo #ee
Hall be paid, nor any Thing demanded, fave only a reaſonable Reward
to the. Clerk for entting the ſame, not erceeding $10e Shillings :
Which fato Esitty being examined by the reſpective Architehop, B1
fhop, Ol Dean, and by thein reſpectively attefied in the fato Book, to
be a true Copy of the original Leale di Grant, and that the Auß-
mentation in the ſame was intended foj (uch Gle, fhall be as a Re-
CO2D ; a true Copy whereof, pjóved by Tuitnefles to be & trae co-
py, ſhall be deemed, taken, adjudged and expounded to be good
and ſufficient Evidence in the Law, wherettpon the fard Wicars and
Curates reſpectively thall and may, by Gertae of this sã, from Time
to Time recover the Benefit of ſuch augmentation.
And be it further enacted by the authority aforefaid, Chat wijere Subſtance of
Agreements
any Archbiljop, Biſhop, Dean and Chapter, oz any other Ecclefiafti:
cai Cozpocation or perſon whatſoeder, upon the renewing 02 grant-
ing any Leale ol Eſtate, have made any Agreement for an augmeit-
tation for the Uicar o Curate, and ſuch augmentation hath for any
Time been accoudingly paid, although the Caid agreement is not ets
pelled oz mentioned in the ſaid Leale 02 Giant, every ſuch Ecoleda:
ffical perſon ſhall cauſe the Subſtance of fuch Agerement to be ent-
tred in the laid Book, to remain for a Memorial of it to Pecpecuify.
and be it ftirther enacted, Chat Cuch Augmentation ſo entred that
likewiſe continue, and be for ever hereaftet good and avatlable in mentations.
the Law, for the Benefit of the Ticar oj Curate fdż whom it was
intended, and their succeffois, as well againſt the Archbithop, Bt.
ſhop, oj other Ecclefiaftical Cojpozation or perſon who agreed for the
fame, and his and their succellojs, as againk every other perſon
enjoying the ſaid Rectories of portion of Tytheg intended to be
charged therewith in the canie männer, and foz tohich they thall bøe
the fame Remedy as they thould og ought to have by Gertue of
this act, if the ſame had been mentioned and reſerved in and by
the Leaſe.
And if any Queſtion Hall hereafter ariſe concerning the Walidity if Queftions
of ſuch Giants, 02 any other matter od Ching in this på mene ariſe.
tioned and contained, ſuch favourable Conftructions, and ſuch farther
Bemedy, if need be, fhall be had and made for the Benefit of the
Aicars and Curates, as heretofoze hath been had and made, oj már
be had foz oiher Charitable Ules upon the Statutes foi Charitabil
Gires.
Provided always, and be it further enaged by the Authority afojes
ſaid, That if upon the Surrender, Erpiration, oj sther Determina
tisni of any Leale wherein any ſuch Qugmentation as aforeſaid hath
been Ol chall be granted, any new Leaſe of the Premiſles, any part
thereof,
Continuance
of ſuch Aug-
398
The Clergy-Man's Law: Or, Chap. XXXIX,
tions.
>
Debt for
Augmentas thereof, thall bereafter be made, without expreſs Continuance of the
faid Augmentation, every ſuch new Leale hall be utterly void to all
Intents and purpoſes.
Provided always, Chat this aa, oz any Ching therein contained,
ſhall not ertend, oz be conſtrued to invalidate, alter, or make ucid
one Leaſe, bearing Date the Nineteenth of October, Dne thouſand
lir hundred ſeventy and tir, made by the Dean and Chapter of York,
of the Parlonage and Tithes of Stourton in the County of Notting-
ham, wherein there is an augmentation of Sir and thirty Pounds
per Annum reſerved, and made dule and payable to the Micar of Stour-
ton aforeſaid, but that the ſaid Sum of Sir and thirty Pounds be
always paid to the Wicar and his Succellois accoadingly; any Thing
in this act contained to the contrary in any wiſe notwithſtanding.
Provided, Tbat this ai, 02 any Thing therein contained, thall
not extend, od be conſtrued to invalidate, alter 02 make void, one
Leaſe lately made by the Dean and Chapter of Exon, unto Arthur
Sprey Eſquire, of the Cithe-Sheaf of the Pariſh of Saint Eval in
the County of Cornwal, whereon there is an Augmentation of
Twenty Pounds per Annum already made, due and payable to the
Wicar of the ſaid pariſh
, during the ſaid Leaſe, but that the ſaid Sum
of Twenty Pounds be always paid to the Aicar and his Succellos
accoldingly; any Thing in this a& contained to the contrary in any
wiſe notwithtanding, Stat. 29 Car. 2. cap. 8.
Vicars and Curates may bring an Action of Debt for any Augmen-
Augmenta- tation made to them, without ſhewing the Deed by which fuch Aug-
mentation is made; and although the Augmentation be made and re-
ſerved by a Leaſe for Lives, and that by the Words of this Statute,
although by the Law regularly an Action of Debt lies not for Rent
reſerved on a Leaſe for Lives, for one Life during the Continuance of
the Leaſe. Mich. 33 Car. 2. C. B. Carber v. Pinkney. 3 Levinz. 82.
14 Car. 2. And by a Clauſe in a Statute of 14 Car. 2, it is enacted, That
4.25: Upon whereas the faid Conveyances and Afurances in and by this at in:
Truſtees, and tended to be made void, were ſome of them of Eſtates in Fee fim-
Re-demiſes ple, and ſome of them long Terms for Years made to Truſtees, who
by them.
re-demiſed the ſame at and under ſuch pearly Rents and Sums of
money as were then appointed to be the Augmentation of certain
Wicarages, og gzaintenance for Preaching Miniſters, Ance which
Time many of the Rectories and Lands lo conveyed and leared
have been abſolutely Cold, and the Re-demiſes thereof granted and
aſſigned by the Dwners thereof, for the Benefit of ſuch Purchaſers.
Be it further enacted and ozdained by this preſent Parliament, and
by the authority of the ſame, Chat the Caid purchaſers, their Deirs
and aligns, ſhall pay, and the Catd former Dwners of the ſaid Lands
and Re&ories, their Erecutors, adminiſtratops and aligns, thall
have, hold and enjoy the ſaid Rents and Sums of Doney ſo re:
ſerved. (for the. Augmentation of the ſaid Aicarages, and mains
tenance foz Preaching nginitters) upon the ſaid ſeveral Re-demiſes,
and ſhall bave the ſame, and the like Remedies by Diſtreſs, od
by action of Debt ; for the Recovery thereof, as the Caid Trus
ſteeg who re demiſed the ſame ſhould od might have had it this
gå had not been made. Stat. 14 Car. 2. C. 25. See before the Notes
on the Stat. 29 Car. 2. c. 8.
tions.
4
I will
Chap. XXXIX. The Complete Incumbent.
399
tions.
I will alſo here add the Statutes concerning Dilapidations. Be it Dilapidas
enaded by the Dueen's moſt excellent majelly, the Lolds Spiritual
and Temporal, and the Commons in this preſent Parliament allem. 13 Eliz. 10.
bled, and by the authority of the ſame, Chat if any archb:thop, Bi. Concerning
ſhop, Dean, archdeacon, Povoſt, Treaſurer, Chaunter, Chancellor, tions, sc
Prebendary, or any other having any. Dignity. or Office in any Cathe. Nelf. Lust. 42:
dal 02 Collegiate Church within this Realm ; op if any Parlon, Wi-
Car; oz other Incumbent of any Ecclefiaftical Living whereunto da
belong any houſe or Houſes, 02 other Buildings, which by Law oz
Cutom he is bound to keep and maintain in Reparation, do front
hencefoxty make any Deed of Deeds of Gift of alienation, 02 other
like Conveyances of his moveable Goods of Chattels, to the intent and
Purpoſe afozelaid ; (viz. to defraud their Succeſſors of their Remedies
againſt their Executors or Adniiniſtrators for Dilapidations) Chat thert
the Succellor and Succeflozs of him that fhall make auch Deed oj
Deeds of Gift 02 Alienation, mall and may comnience Suit, and
have ſuch Bemedy in any Court Eccleñaftical of this Realm, compe-
tent for the matter againt him or them to whom ſuch Deed 02 Deeds
of Gift of alienation thall be lo made; foz the Amendment and Res
paration of ſo much of the ſaid Dilapidations and Decays, 02 jutt
Recompence foz the ſame, as hath happened by his Fact oz Default,
in ſuch Solt as he might, thould od ought lawfully to bave, if he oz
they, to whom ſuch Deed od Deeds of Gift oz alienation thall be
made, were Efecuto2 dl Erecutous of the Celtament and Latt Will
of him that made fuch Deed of Deeds of Sift oz alienation, oj were
adminiftrator od adminiſtratozs of his Goods 02 Chattels; any Law,
Cuftom, or other Thing to the contrary ilt any wiſe notwithſtanding
Stat. 13 Eliz. C. 10.
And by another Statute it is enacted, That all Sums of money. The Money
14 Eliz.c.it:
hereafter to be recovered for oz in Name of Dilapidations by Sen: recovered
tence, Compoſition, oz otherwiſe, fhall within two years after ſuch how to be
Receipt be truly employed upon
the Buildings and Reparations, in imployed.
reſpea whereof ſuch money for Dilapidations wali be paid, on Pain
that every perſon ſo receiving, and not employing as afozelaid, thall
forfeit double as much as fhall lo be by him received, and not em-
ployed; the which Forfeiture ſhall be to the Ale of the Dueen's
gajeſty, her heirs and Succettoys. Stat. 14 Eliz. C. II.
It is ſaid, that no Remedy is given at Common Law for Dilapida- Whether an
tions, Suits for them being moſt proper to be brought in the Eccleſi-
aſtical Courts, which Suits are not to be hindred by Prohibitions ; but Law doth lie
if
any Prohibition be granted, a Conſultation is to be awarded. Regi- for Dilapi-
fter of Writs 48. Fitz. N. Br. 52. But by Parſons Counſellor 953
upon Search of thoſe Precedents, it appears that no Judgment was
given in any one of them ; but in ſome of them there was a Verdict,
and after that divers Continuances entred. But Mich. 3 Fac. C. B.
Rot. 332. Dag v. Hollington, Judgment was given for the Plaintiff
upon Demurrer in a Suit for Dilapidations, and afterwards an Action
of the Cafe was brought by the preſent Incumbent againſt him who
had been Incumbent immediately before him, and had accepted ano-
ther Living, and left the Houſes out of Repair : and this Cauſe being
at Iſſue, and a Verdict found for the Plaintiff
, it was moved in Arreſt
of Judgment, that an Action at Common Law did not lie for Dila-
pidations; of which Opinion was the Chief Juſtice Pollexfen, who
ſaid
A&tion at
Common
400
The Clergy-Man's Law: Or, Chap. XXXIX.
tiong.
nions.
Dilapida: ſaid that the Remedy was only in the Eccleſiaſtical Court, and the
reſt of the Four then inclined to be of the fame Opinion ; but
Divers Opi- Pollenfen and Ventris being dead, the Matter was moved again
before Powell and Rokeby Juſtices, and they gave Judgment for
the Plaintiff. Paſch. 2 W. and M. C. B. Jones v. Hill. 3 Levinz
Prohibition 268, and afterwards. Hill. 6 W. 3. C. B. Okes V. Ange, a Prohi-
grantcd. bition was moved to the Eccleſiaſtical Court for Dilapidations,
upon Suggeſtion that the Plaintiff in the Eccleſiaſtical Court had
brought a Suit at Common Law for the fame Dilapidations, in
which Action the Defendant pleaded Tender of 10 l. which was
fufficient to repair the ſaid Dilapidations, and the Plaintiff took
Iſſue that the 10 l. was not ſufficient, and the Verdict found it
fufficient; upon which Judginent was given for the Defendant,
and he pleaded this Judgment in Bar in the Eccleſiaſtical Court,
which they refufed ; and the Court granted a Prohibition. 3 Le-
vinz 413. This Conſultation therefore is to be intended where
the Suit is grounded upon the Canon Law ; for that an Action
of the Caſe might have been brought at Common Law by the
Succeſſor, againſt the Executors or Adminiſtrators of the Dilapi-
dator, and Damages recovered, as appears by many Precedents.
Parſon's Counſellor 97, 98. But a Curate, though he by Licence
or Agreement receive the 'Tithes, and have an Allowance for
the Repairs of the Parfonage Houſe, 6c. yet being but at Will,
and not coming by Inſtitution and Induction, ſo no Incumbent;
his Executors, &c. are not to be ſued or charged in the Spiritual
Court for Dilapidations, which I collect from Pawly and Wiſeman's
Cafe. 3 Keb. 614.
And Note one great End of making the Statutes of 13 Eliz.
cap. 10, and : Jac. 1. c. 3, (Which ſee hereafter Chap. 41) was
for avoiding of Dilapidations; and by 35 Eliz. cap. 14, Dilapida-
tions are excepted out of general Pardons. Vide Gibſon's Codex.
793
I
СНА Р.
Chap. XL. The Complete Incumbent. .
401
Wacant 18CF
nefices.
CH A P. XL.
Fruits and Profits of Benefits in Time of
Vacation to whom they belong, and the
Remedies how to recover them if detained
What Charges Parſons are liable to in re-
Spect of their Glebe, or Tithes; and of the
Temporalities of Biſhops in Time of Vaca-
tion, &c.
T
Hough before Inſtitution, Collation, &c. a Clerk hath Right to How a legal
the Profits of any Benefice; yet a legal 'Title when obtained Title works
hath alſo this Effect, that it doth fo work backwards, as to give the the Right of
Clerk a Right to the Profits from the Time that the Church became the Profits.
void of the preceding Incumbent; and this is by Vertue of the Statute
of 28 H. 8. C. II, which is as followeth :
Tilhereas by Beaſon that it is not declared who ſhall have the By 28 H. 8.
Fruits, Tithes, and other profits of Benefices, Difices, promo, cap. II.
tions and Dignities Spiritual, during the Time of Wacation there.
of, divers of the archbiſhops and Biſhops of this Realm, bave not Delays of Bi-
only when the Time of perceiving and taking of Tithes, (that is ſhops in Col-
to ſay, Wool, Lamb, Corn and hay, and of Tithes uſually paid at how pra-
the Holy Time of Eaſter) hath approached, deferred the Collation of Siſed.
luch Benefices as have been of their own Patronage, but alſo have
upon Peſentations of Clerks made unto them by the juſt Patrons,
protraxed and deferred to inaitute, induct and admit the ſame Clerks,
to the Intent that they might have and perceive to their omn ale
the ſame Tithes growing during the Wacation. So that through
ſuch Delays, (over and above the firſt Fruits, which be juſtly due
to the King's Highneſs) they have been conſtrained alſo to loſe all,
of the moſt part of one years profits of their Benefices and Pos
motions, and to ſerve the Cure at their and their friends proper
Coſts and Charges, od utterly to fožſake and give over their Bene-
fices and promotions, to their great Lols and Hindzance.
FOI Rcfomation whereof, it is oldained and enađed by the King
our Sovereign Loid, with the affent of the Lolds Spiritual and
Tempojal, and the Commons in this preſent Parliament aſſembled,
and by the authority of the ſame, That the ſaid Year, in which the
Firſt: Fruits thall be paid to the King's Grace, thall begin and be ac: From what
counted immediately after the avoidance oz Uacation of any ſuch Be
niefice 02 Duomotions Spiritual afoje rehearſed. And that the Tithes, Firit Fruits
Fruits, Dblationis, Dbventions, Emoluments, Commodities, advan- ſhall
begin.
tages, Rents, and all other whatſoever Revenues, Caſualties 02
Profits, certain and uncertain, affering of belonging to any archdea-
conry, Deaney, Prebend, Parſonage, Uicarage, yoſpital, WWarden.
fhip, Povoſfyip, 02 other Spiritual Promotion, Benefice, Dignity
Rrr
02
Time the
Year for
Vide Chap. 150
nefices.
5
Wardella
402 The Clergy-Man's Law: Or, Chap. XL.
Vacant Be- of Dfice, (Chauntries only excepted) within this Realm, oj other
the King's Dominions, growing, riling od coming, during the Time
of Gacation of the ſame promotion spiritual, fhall belong and af
fere to ſuch perſon as fhall be thereunto neft pleſented, promoted,
inſtituted, induced or admitted, and to bis Erecutols, toward the
Payment of the Firte fruits to the King's highlieſs, his yeits: and
Dliceefiols ; any Ulage, Cuſtom, Liberty, Privilege 02 Preſcription
to the contrary had, uſed of being in any wiſe notwithſtanding.
and it is alſo enacted by the authovity afözefaid, That if any Arch-
bilhop, Bichop, Archdeacon, Dubinavy, of any other perſon 02 Per-
fons, to théič ales and Behoot, at any time heretofore, fith the
Firrt Day of May 1aff patt, have perceived, received, 04 taken, og at
any Time hereafter do perceive, receive oz take the fruits, Tithes,
Diventions, Dblations, Emoluments, Commodities, Revenues,
Kents, advantages, Profits 02 Caſualties, coming, growing of be
longing, of which bereafter ſhall come, grow, affere or belong to any
Archdeaconry, Deanry, Prebend, Parſonage, Vicarage, hoſpital,
Icardenſhip, provonligip or other Spiritual promotion, Benefice,
Dignity or Office (Chauntries only ercepted) within this Realm, 02
other the king'g Dominións, during the Vacation of ſecch Archdea?
fhip, Povodſhip, oz other Spiritual Promotion, Benefice, Dignity
O? Ditice, (Chauntries only epcepted) and the ſame upon reaſonable
To render Requeſt from bencefo{th to be made, doth not render, reftoje, ſatisfy,
and ſatisfy content and pay to the neſt Incumbent, being lawfully inſtituted, in-
for the ſame. ducted oj admitted to fuch Archdeaconry, Deanry, Prebend, Pallo-
nage, 02 Ultåtage, oj other Promotion, Benefice, Dignity of Office
Spiritual, ercept befole ercepted, 02 do let od interrupt the ſaid 31
cunibetit to have the ſame ; that then every archbiſhop, Bithop, Arch-
deacon, Divinatý, oj other Perſon ſo doing, call forfeit and loſe the
Forfeiture of treble Walue of ſo much as he thall then have received of the fruits
of every Paebend, Parſonage, Cicarage, Hoſpital, Wardenthip, Pio:
vottiip, or other optritual Promotion whereof he ſo thall perceive,
receive of detain, let od interrupt the Incumbent to perceive, receive
and have the fruits, Tithes, Dbventions, Dblations, Emoluments,
Commodities, Revenues, Rents, advantages, Profits of Caſualties.
The moiety of which forfeiture fhall be to the King our Soveriga
Logo, and the other 99 otety thereof to the Incumbent of the ſame
Prebend, Parlonage 02 Vicarage, od other Spiritual Promotion, to
be recovered in any of the king's Courts by Adiou, Bül, Plaint,
Infomation 02 otherwiſe ; in which Adion & Suit the Defendant
thall not be admitted to wage his Law, noz any Protection 02 Efroin
thall be unto the Defendant allowed.
Retainer of
Stipend for
Provided alway, That it thall be lawful to every Archbiſhop, Bilhop,
ſerving the Archdeacon and Didinary, their Dificers and minifters, to retain in
Fee, Egoc.
bis od their Cuftody fo much of the Tithes, fruits, Dbuertionis, Db-
fations, Emoluments, Commodities, advantages, Rents, Revenues,
Caſualties and Profits, as thall amount to pay unto fuch Perſoli 0]
Perfons as hath or ſhall ferve od keep the Cure of fuch archdeacon:
ry, Deanty, Preberid, Parſonage od Uicarage, od other Spiritual
Promotion, düring the Uacation, his or their reaſonable Stipend og
Salary. and alſo fod the Collection, gathering og levying of ſuch
Tithes, fruits, Emolunients, Bents and other profits, riſing and
growing
treble Value.
A
2
Chap. XL. The Complete Incumbent.
403
Vacation be
ery:
growing during the Vacation afožefald ; any thing in this da con: Wacant Bis
neficegi.
tained to the contrary in any wiſe notwithſtanding.
Provided allo, and be
it further enađed by the authority aforeſaid, Glebe Lands
That in caſe any of the Incumbents aforeſaid happen to die, and bea fown by for-
foze bis Death hath cauſed any of his Glebe Lands to be manured bent
.
and lown at his proper Corts and Charges with any Com o Guain,
that then in that Cale, all and every of the ſame Incumbents may
make and declare their Teftaments of all the profits of the Coin
growing upon the ſaid Glebe Lands lo manured and lown; any thing
contained in this preſent gå in any wiſe notwithlanding.
Provided alway, That if the Fruits of the Uacation of the ſaid If Fruits of
Spiritual Promotions be not fufficient to pay the Curates Stipend not fufficient
and Wages for ſerving the Cure the Cacation-time, that then the to pay Sti-
fame to be born and paid by the nert Incumbent within Fourteen pends, &c.
Days nert after that he hath the Poletion of the Caid Promo:
tions Spiritual. Stat. 28 H. 8. c. 11.
Note, That that part of the Statute, not here ſet down, concern- Nota, Re-
ing the ratifying of Leaſes made by Spiritual Perfons of their Benefices peal.
to Lay-men, is repealed by 1 and 2 Ph. and M. c. 17.
Before this Statute of 28 H. 8. c. 11, the Law is ſaid to be, That Profits of
King's Dean-
.after the Death of the Dean of a Free Chapel of the Kings, the
King ſhall have the Profits of the Deanery during the Vacation, becauſe
it is at the King's Election to collate a new Dean. 33 E. 3. Aid del
Roy 103. But if the Dean hath a Parſonage appropriate to him, the
King Shall not have the Tithes and Profits thereof. 2 2 Rolle
340.
So
'tis ſaid, that the Patron of a Donative may take the Profits thereof
in the Vacation ; but that if any take them from him, he cannot
maintain an Action to recover them. Britton v. Wade. 2 Cro. 518. But
I ſuppoſe this Statute gives them to the next Incumbent, for the Words
are general.
Though the Profits of the Church during the Vacation are in the Intereſt of
Incumbent upon his Induction, and not due to the Patron or Ordinary ; Ordinary at
for if the Patron enter upon the Church in Time of Vacation, he Common
thereby is not any Diſſeifor, nor gains any Right. Savil. 18, yet the Law.
Patron and Ordinary have ſuch an Intereſt in the Revenues of a Church,
as that at Common Law they might have charged the fame in Time
of Vacation, which would have bound all ſucceeding Incumbents, be-
cauſe no other had any Intereſt at that Time but they only. Hibl. 35 El.
Anne Marow's Cafe. i Co. 147. b. See Paſch. 37 Eliz. Ford's Cafe.
5 Co. 81. b. And if a Man hath an Annuity out of a Parſonage,
and he releaſes to the Patron in the Time of Vacation, this ſhall ex-
tinguiſh the Annuity. 2 Roll's Abr. 339. K. 340. Ford's Cafe. 5 Co.
81. But if one that hath Right to the Glebe, releaſe to the Patron
in Time of Vacation all his Right, this is not good, becauſe the Patron
hath not any Eſtate in the Glebe. 2 Roll's Abr. 240.
As to the aforeſaid Statute I do find but little in all the Books re-
lating thereunto, yet I will venture to deliver my own Thoughts con-
cerning ſeveral Queſtions that may
Firſt then I conceive, that by this Statute, in caſe (a Church being uſurper's
void) a Clerk doth get Inſtitution and Induction upon the Preſentation tuted, ecc
.
of him that hath no Right to preſent, ſuch Clerk ſhall have the to have the
Profits due in the Vacation, and alſo all the Profits of the Church Profits.
unto the 'Time of his Removal, and not the Clerk of him that re-
moved ſuch firſt Incumbent by Quare Impedit or other Suit of Law,
Rrr 2
And
may ariſe
upon it.
404 The Clergy-Man's Law: Or, Chap XL.
neficer.
Who may
reap upon
EPCE
f
Wacart Bes And ſo it is if a Writ of Error, be brought, as is ſaid in Grange and
Howlet's Cafe. Mich. IR fac: B. R. 1 Roll's Rep. 61. And ſuch In-
cumbent, is to pay Firſt Fruits, Tenths, and other Duties becoming
due before ſuch: Removal. Fones 340. And he is not to be looked
upon as removed, (with reſpect to the ſaid Profits and Dutics) until
fuch Time as the Clerk of him that recovers is inſtituted ; for although
by the Judgment in a Qzare, Impedit he be fo removed, that the Plain-
tiff may preſent, and his Clerk may be inſtituted; yet until ſuch In-
ftitution, &c. actually had, the firſt clerk remains Incumbent de
fa&to, by Coke. Mich. 12. Jaco. B. R. in Whiſtler and Singleton's Cafe.
1 Roll's Rep. 62. But after, the ſecond Clerk is inſtituted and in-
the Glebc, ducted, he may enter
, upon the Profits, and reap the Corn fowed upon
the Glebe by him againſt whoin the Recovery was had, and that with-
out a Scire Facias; by all the Juſtices. Hill. 41 Eliz. Bennet v. Ëd-
wards. Moor 571.
Incumbent . If the Incumbent of one Church of the yearly Value of Eight
other Bremen Pounds, or above, doth without a Diſpenfation accept another Benc-
fice without fice, the firſt is abſolutely void, fo that if he doth continue as Incun-
Diſpenſation. bent by ferving or providing for the Cure, taking up the Profits, &c.
I conceive that he is in the fane Cafe, as if upon the Death of the
Incumbent of another Church he ſhould of his own Authority enter
upon the Profits, and ſerve the Cure thereof as if lawful Incumbent,
that-is, that he is accountable to the next Incumbent for the Profits re-
ceived by him, and liable to an Action upon this Statute, if he refuſe
to ſatisfy the next Incumbent for the fame. See the King and Priſt's
Cafe. Hill.. 9 Gar. Jones 337, 339, 340. But if any inferior Dignity,
or other Benefice.doth become void by Ceſſion upon the Account of
the Canon Law only : As if one having one Benefice with Cure un-
der the yearly Value of Eight Pounds, doth accept of another that is
incompatible, although that in ſuch Caſe the Patron may preſent be-
fore the Church is judicially declared to be void, or Notice thereof
be given by the Ordinary; yet it hath been held, that until Depriva-
tion be made, by reaſon of the Acceptance of another Benefice incom-
patible; the Church is only void to the Patron, not to Strangers; and
that if the Clerk doth ſue for the Tithes of the former Benefice, it
is not any. Bar to him to ſay, that he hath taken a ſecond Benefice;
Who may by Juſtice Barkly, 13 Car. B. R, which, Juſtice Yelverton in his Ar-
Profits there- gument of the Caſe of Priſt ſaid had been ſo adjudged, 2 Roll's
of, and from Abr. 361, from which it ſeems to be, that inmediately upon ſuch
what Time. Ceſſion, the Profits of the Church do not belong to the next Incum-
bent, but only from the Time that the Church is judicially declared
to be void. But had not the aforeſaid Authority reſolved the contrary,
it might have been a Doubt, whether ſuch Church had not been fo
void, that the Profits of it by this Statute had belonged to the next
Incumbent, from the Time that the Clerk had been inſtituted, or 0-
-therwiſe intitled to the ſecond Benefice incompatible, and not from
the Time only of the Deprivation, or judicial Declaration of the A-
voidance in the Court Chriſtian; for the Conſtitution of the Council
of Lateran faith, Ipfo jure fit privatus, not ſpeaking of any Sentence
of Deprivation : And by the ſame Çanon and Words a Church ſhall
be void to all Purpoſes., upon conſecrațing its Incumbent a Biſhop,
without any judicial Proceedings, and particularly to the entitling the
next Incumbent ta the Profits of the Vacation from the Ceſſion;
which none diſpute; why then ſhould not the fame Canon have the
Anotlier
Conſtruction
of this Canon
4
fame
Chap. XL. The Complete. Incumbent. .
405
nchies
1
I
fame Conſtruction and Effect in this Çafe? Beſides, 'tis faid, 10 Ęd. Wacant Bes
3. 1, that the Conſtitution of Lateran is a general
Şentence of Depri-
vation ; and that if particular Deprivation for a Crime, or Religna-
tion of the Iccumbent, doth abfolutely void a Church, much more
fhall the Conftitution in the Cafe do it. Hill
. 9 Car. King y. Prijt
.
Fones 337. In the Caſe of particular Deprivation for Crime; the
Church is not only void to the true Patron's. Prefentment, but to an
Ulurper's alſo, although no Notice be given thereof. Triz. 44 Eliz.
Green v. Baker. 2 Roll's Abr. 369. Pafeb, 17 Fac. Sir Willian Elvis's
Cafe. v. the Biſhop of York, &c. Hobart 3!8. And ſo it is, if the
Church be void by Reſignation, and no Notice be given to the true
Patron. Pafch. 33 Eliz. Serven y. the Biſhop of Lincoln. Nog 65.
And by Hobart in Sir William Elvis's Cafe. y. the Biſhop of York, &c.
Hobart 318. If when the Church by Ceſſion is open to the Prefent-
nient of the true Patron, an Uſurper doth get his Clerk inſtituted and If upon Cef-
inducted thereurto before any Declaration of the Cellion is made ju- fion an U-
dicially, it may be worth the confidering, whether the Church thereby his Clerk in-
fhall be faid to be plena de conſulta, ſo that the Ordinary thall be a duaedbefore
Diſturber in refuſing to admit the true Patron's Clerk; and whether, motion
if he did admit and inſtitute him, it would not amount to a Superin-
"Ttitution, and be void. If it be ſaid, that the Church in ſuch Caſe is
not full of the Ufurper's Clerk, but that the Biſhop is bound to ad-
mit the Clerk of the true Patron preſented to him, that muſt be be-
cauſe the 'Inſtitution of the Uſurper's Clerk was a Superinſtitution ; if
fo, then the Clerk that.voided the Benefice, by Cellion might have an
Aſlize or other Action againſt him, which is hard to fay, he being de-
prived: by the aforeſaid Conſtitution, the Intent of which was to put
the Cure and Profits into the Poffeffion of another; and not only to
put it into the Patron's Power to preſent if he pleaſed ;, but if on the
other Hand it be granted, that the Ufurper's Clerk is Incumbent de
fatto until the true Patron remove him by Suit; 'tis then to be con-
feſs'd, that the Church by ſuch Ceſſion without particular
. Deprivation
is void as to others, as well as to the true Patron, and then why not
to the next Incumbent to give him a Right to the Profits immediate-
ly from the Ceſſion ? But: Quære.
Further, I conceive that if a Clerk' be Simoniacally preſented to a if a Clerk be
void Church, although that, he be inſtituted and inducted, thereupon, Simoniacal-
ly preſented
that he hath not any Right to the Profits of the Church, neither, to
thoſe that did ariſe from the Time that the Church fell void until his Church.
Inſtitution, nor to thoſe ariſing after it ; but in ſuch Caſe the Profits of
the Church are due to the Clerk preſented by the King upon the T-
tle of Simony, from the Time that it became void of its lawful In-
cumbent į the Reaſon is, becauſe that the Church to which, a Perſon
is Simoniacally preſented, remains. void ņotwithſtanding the Inſtitution
and Induction had thereupon, the Preſentation, Inſtitution and Indu-
&ion being made void: bythe Statute. 31. Eliz. Co., 6. Co., Lit. 120.
And are not only void as to the King; ſo that he may preſent upon
his
Title by Simony without any Deprivation, or bringing his Writ, to re-
move the Simoniſt; but alſo as to thę. Pariſhioners, ſo that they may
detain their 'Tithes
, and plead the. Simony, as. a. Bar in any Action
brought by the Simonift to recover them. Winckcoil and Palleton's
Cafe: Hobart 166. Fame Cafe. Noy. 25. Mich. 8, Jaco Penn's Cafe.
1 Browntow and Gouldsborongh 7. Trin 8 Jac. Dr. Hutchinson's Caſe.
Godbolt. and Trin. 14.Car. 2. BiRo Knight v. Pançer, 1 Keb: 311,
312
to a void
.
406
The Clergy-Man's Law, Or: Chap. XL.
nefices.
ز
where the
Voidance
Wacant Be- 312. It was there objected by Finch, Solicitor General, that a Parfon
in by Simony, may fue for Tithes notwithſtanding what is ſaid by Ho
bart, which he ſaid was not Law ; but this was denied by the Court,
and agreed that Simony may be pleaded in Bar, in an Action of Debt
for Tithes; yet 3 Cro. 642, ſeems to be to the contrary. But if the
King doth not preſent during the Life of the Simoniſt, and then the
true Patron, or an Uſurper doth preſent a Clerk, who is inſtituted and
inducted ; I conceive that in this Cafe fuch Preſentee hath Right to
the Profits of the Church from the 'Time that it was firſt void of a
lawful Incumbent; and that if the King before the Death of the Pa-
tron's or Uſurper's Clerk doth remove him by Quare Impedit, and preſent
another, as he may, (if the Patron, &c. be not within the Relief of the
Statute 1 W. and M. c. 16.) Pafch. 14 Fac. Winchcomb v. Pulleſton.
Hob. 165. Same Caſe. Noy 25, and 1 Brownlow and Gouldsborough 164
the King's Clerk can claim the Profits only from his Inſtitution. so I
In ali Cafes conceive in all Caſes, when notwithſtanding Inſtitution and Induction
the Church doth remain void, for that the Inſtitution and Induction are
Inſtitution,
&c. are ipfo declared by Law to be ipfo fatto void, the Profits from the Time that
fatto void.
the Church was void before ſuch Inſtitution, and after, go to the
Perſon next legally inſtituted. (And when a Church notwithſtanding
Inſtitution doth remain void. Sec Chap. 20.) But when the Admiſ-
ſion, Inſtitution and Induction of a Clerk to a Church are not abfo-
lutely void, although that the Church afterwards through the Omilton
thro Omifi- of ſome legal Duty doth become void, the Profits ariſing in the Va-
on of ſome cation go to the Perſon fo admitted, c. and from the Time of the
legal Duty:
Avoidance through ſuch Omiſſion, to the next Incumbent, altho' the
Perſon adniitted doth ſerve the Cure after the Avoidance as Incumbent,
(and when a Church by, ſuch Omiſſion becomes void is ſhewed be-
fore. Chap. 15.) But whenfoever any Perfon doth receive the Profits
of a Church when he hath no Title thereto, ſuch Perſon ſhall be ſub-
ject to pay the Tenths due to the King, fo alſo to a Diſtreſs for a
Rent-Charge, and to all other Charges and Payments which are pay-
able out of ſuch Benefice, and that, from the Reaſon of his taking
up
the Profits thereof, and ſo ſhall every one that enters upon a Bene-
fice without Inſtitution or other Title. But neither the one nor the
other may bring an Action of Juris utrum, or a Writ of Annuity, nor
may he ſue for the Tithes, nor can he plead in Bar in a Quare Impe-
dit as Incumbent in Poſſeſſion, as was ſaid. Hill. 9 Car. in the King
and Priſt's Cafe. Fones 339, 340.
Note, That although the Words in this Statute be in the Disjun-
miſſion is fuf- ctive preſented, inſtituted, inducted, or admitted; yet I conceive that
ficientto give a bare Admiſſion, which is that Act by which the Ordinary doth ap-
Profits of the prove of a Clerk preſented to him, as fit to ſerve the Cure, is not
here to be underſtood, as if ſuch Admiſſion alone was fufficient by this
Statute to give the Clerk the Profits of the Vacation ; for then the
fame may be faid of being only preſented, but is added with reſpect
to thoſe Preferments, which are not taken by the way of Inſtitution
and Induction; and ſo is not here to be taken in its general, but re-
ſtrained Signification with reſpect to ſuch Preferments only; and pro-
bably it may be thought, that where a Perſon is to be made Com-
plete Incumbent of a Church by the Way of Preſentation, Inſtitution
If the Words and Induction, the Words preſented, inſtituted, induEted, in this Sta-
tute, ſhall be taken in a Copulative Senſe; ſo that the new Incum-
Copulativc
bent to give him a Capacity to ſue for the Profits of the Church ari-
3
ſing
If a bare Ad-
Vacation.
may be in a
Senſe.
Chap. XL. The Complete Incumbent.
407
nefires.
Proceedings: at Law-be for ſuch; Profits ;, yet it is reaſonable to judge,
ariſing in the Vacation, muſt be as well lawfully inducted as inſtitu- alaçant Be
ted; and it is. doubtleſs the fafeſt way to get Induction before any
that a Clerk by Inſtitution only, hath the fame Right to the Profits a-
riſing in the Vacation, as to thoſe Profits
, ariſing after his Inſtitution. ;
and by Coke, by Inſtitution he hath, a Right to enter upon, or take the
Profits, though not to, fue for them. Hitchin and Glover's Cafe:
Pulchr. 1:3 Fac: 1 Rolls Rep. 227. Alſo by Inſtitution, a Church
plena de conſulta, and a Perſon is then ſaid to be promoted to. it'; and
belides, the Profits of the Vacation are given by this $tatute towards
the Payment of the Fifft Fruits, which are due upon Inſtitution, and
before Induction, by Stat, 26 H 8. 6. 3•
But if Inftitution before
. Induction thall be fạid to entitle a Clerk If Inſtitution
to ſuch Profats, fo that he may take them, or diſcharge the Payment will extend
thereof, thougla not to ſue for the ſame. A farther Quction may be tas of the
made, whether the ſame ſhall be extended to Benefices which are of Patron of
the King's Gift, viz. Whether a Church be fo filled by: Inftitution Benefices of
upon the Prefentation of tạe King, or of an Uſurper to a Benefice of Gift
.
the King's Gift, as to entitle the Party inſtituted to the Profits of the
Vacation, and to charge him with the Payment of Firſt Fruits, &c.
becauſe the Church is not fo filled by Inſtitution only againſt the
King, but that the King may, when he pleaſeth, before Induction pre-
fent to his own Benefice, upon his own, or an Ufurper's Pţefentee to
the outing of him.
As to which Queſtion I think rather, that ſuch Clerk is entituled and it ſeems
to the Profits ariſing in the Vacation, and is chargeable with the Pay- it may.
ment of Firſt Fruits, c. yea, although that the King fhould actu-
ally out him by preſenting another Clerk before his induction, for tho
the King hath ſuch Prerogative, that he may before Induction preſent
another Clerk to the outing of his own Preſentee, or an Ulurper's,
without being put to his Writ for the Removal of them ; yet I ap-
prehend, that the Church in ſuch Caſes is filled by Inſtitution alone as
to other Purpoſes : Firſt, I ſuppoſe that it will be granted, tļat ſuch
Clerks have the Cure of Souls by Inſtituțion, and may not be inter;
rupted in forzing the Cure, even as Clerks of other Patrons being on
ly inſtituted, elſe the Cure is not a&ually committed to them, and to
ſuch when inſtituted (as well as to other Cerķs) the Biſhop faith, Ac-
cipe tuam & meam ; and they may (even as others) be puniſhed by
their Ordinary for the Neglect of the Cure, &c. before Induction, e-
ven by Deprivation. And if ſo be, that they may be deprived, it mult
be of that they were intitled to before ; therefore it ſeems to follow
that the Preſentee of the King, or of an Ufupper upon the King's
Right, hath the fame Intereſt in the Profits, and is ſubject to the ſame
Charges and Payments, which a Clerk inſtituted upon any other pri-
vate Patron's Preſentment hath, or is ſubject to.
Farther it will appear, that a Church of the King's Gift is full by Howa
Inſtitution as to all Purpofęs but againſt himſelf, if we conſider, that Church of
the Inſtitution of another Clerk upon the Preſentment of an Ulurper Gife is fui
to the ſame Living to which the King's Glerk is inſtituted, is a Superin- by Inftiru-
ſtitution, and fo void, and makes no Yfurpation upon the King, al- tion.
though that Induction alſo thereupon be had; alfo if a Clerk being
poſſeſſed of a Bencfice with Cure, doth after take a Church of the
King's only by Inſtitution, (Diſpenſation not intervening) his firſt is
void thereby, and if ſuch Inſtitution alone be ſufficient to yoid a for-
ز
nier
408
The Clergy-Man's Law: Or, Chap.XL.
nefices.
What Reme-
Statutc.
up with
alacant Be- mer full Church, it muſt be fufficient to make a void Church full,
faving in the Caſe of the King's Prerogative, and ſo ſeems to have ali
the Effects which Inſtitution in other Caſes may be ſaid to have, viz.
until the King's Preſentment comes. And ſo the Caſe of a Preſentee
to a Living of the King's Gift taken only by Inſtitution, feems to be
like the Caſe of him that by Uſurpation is preſented, inſtituted and
inducted to 'a Benefice, who until a Recovery is had, and the Clerk of
the Recoverer inſtituted, is Incumbent to all Purpoſes : Or it may be
faid to be like the Caſe of him who is collated and inducted by the
Ufurpation of the Ordinary, who thereby is Incumbent to all Purpoſes
,
that is, hath Right to the Profits in and after the Vacation, and as i
conceive is obliged to pay Firſt Fruits; and yet if the true Patron's
Clerk be received by the Ordinary, his Incumbency ceaſeth.
By the ſecond Clauſe of this Statute as here fet down, the Clerk
dy and Right that hath Right to the Profits of the Church during the Vacation, hath
to the Profits his Remedy given him, if upon reaſonable Requeſt made they be not
Clauſe of the rendred to him, or Satisfaction for them, which Remedy is not only
againſt Archbiſhops
, Biſhops, Archdeacons and other Ordinaries
, but
alſo againſt all and every other Perſon or Perſons, and therefore againſt
any Lay-Perſon that ſhall take up ſuch Profits without Commiſſion
of the Ordinary; and againſt any Clerk that ſhall take them
out ſuch Authority, or legal Title, as pretending himſelf to be Incum-
bent. Yet if the Caſe be, that the Ordinary hath fequeftred the Pro-
fits of a void Church, and hath given Commiſſion to the Church-
Wardens, or other Perſons to take them up, and the Profits be taken
up accordingly, and remain in ſuch Perfons Poſſeſſion until a new In-
cumbent is made, to whom the Church-Wardens or other Perſon will
not render them or their Value, it may be doubted whether the Action
for them may not be brought by the new Incumbent againſt the Or-
dinary under whom ſuch Perſon acted, and not only againſt the Church-
Wardens, or other authorized Party, theſe being but as the Ordinaries
Servants, and to give an Account to him, and to ſue for him (if need
be) in the Ordinary's Name. (For ſuch Sequeſtrators authorized by
the Ordinary, may fue for Tithes, and other Profits of the Church if
detained, in the Spiritual Court at leaſt, if not at Common Law : But
ſuch Suits are generally brought in the Name of the Ordinary, or his
Vicar-General, &c. at the Relation of the Sequeſtrator.) For if the
Ordinary in reſpect of his Miniſters, or Servants, be not chargeable, I
do not fee how he ſhould be chargeable at all, in regard that it can-
not (nor could it by the Makers of this Statute) be preſumed, that an
Archbiſhop, Biſhop, &c. would take them up in their proper Perſons
,
but that they would order ſome Perſon under them fo to do, who
ſhould anſwer them to him, or in his Name to the next Incum-
bent, to whom he became by his Commiſſion anſwerable for them ;
and if the Party appointed by the Ordinary be by this Statute charge-
able from the Reaſon of his taking up the Profits, and his Accounting
for them to the Ordinary, from whom he received his Commiſſion and
Authority, be not a fufficient Diſcharge to him, it cannot be Reaſon
that he pay them, or the Value of them, to the Ordinary, for that
he is ſtill the Perſon that took them up, and may remain liable to
anſwer for them. Upon which Doubt, for the Security of the Ordi-
nary, and Benefit of new Incumbents, it ſeems to be adviſable for the
Ordinary to give his Authority of taking up the Profits, and of pro-
viding à Curate (if need be) to ſome diſcreet Clergy-Man near the
2
void
!
:
499.
Chap. XL. The Complete Incumbent .
1
)
r
void Benefice, rather than commit it to Church-Wardens, who are Wacant Bes
nefices.
ſometimes unreſponſible for the Profits, ſometimes fell or difpofe them
much under the Value, to them that ſhould pay them, or to others,
and often againſt the Law imploy fome unqualified Perſon to ſerve
the Cure, and allow him ſo extravagantly, that upon the whole Ac-
count it frequently falls out, that Clerks have little or no Benefit by
this Statute made in their Favour, but are ſometimes run in Arrear,
as when more is paid for ſerving the Cure than the Profits do amount
unto.
Though the Ordinary or other Perſon taking up the Profits be pu- If treble Va-
niſhable by this Statute, if upon reaſonable Requeſt Satisfaction be luc hall be
not made to the next Incumbent; yet if any Pariſhioner hath not ſet where a Pa-
forth, or paid his Tithes, or if other Perſon hath not paid other Pro- riſhioner
fits of the Church payable by him or them to the Ordinary, or others Tithes du-
commiſſioned by him, before the Church be full of an Incumbent, ring the Vá-
(at which 'Time the Biſhop's Authority ceaſeth) I conceive, that ſuch cation.
Pariſhioners or other Perſons refuſing to ſatisfy the new Incumbent, iş
not ſubject to the Penalty of this Statute, viz. the treble Value of
the Profits, but only to ſuch Actions for them which Incumbents may
have for Profits ariſing after their Incumbency, altho' their Right to
them is by this Statute ; becauſe, this Clauſe ſeems only to reach
thoſe that do receive the Profits during the Vacation, and he from
whom they are due, and who ought to pay them to the Ordinary, or
his Miniſters during the Vacation, by retaining them, cannot be ſaid to
be a Receiver of them.
If the Incumbent of a Benefice be put to fue, either for any of the How fafeſt
Profits of his Church received during the Vacation, or for ſuch as are cumbent to
not paid by any one, it is ſafe for him to recite this Statute in his De- declare:
claration, leſt it ſhould be thought not to be a general Statute whereof
the Judges are bound to take Notice, becauſe it extendeth, not to all
the Spiritualty, viz. not to Biſhops, and alſo to aver that he is the next
lawful Incumbent, and that he made a Demand thereof, and the Noni
payment of the fame, eſpecially if he ſue for the treble Value.
From the third Clauſe of the Statute, as here fet down, I conceive,
that though the Ordinary or his Miniſters may detain ſo much of the
Profits they receive, as Ihall amount to pay him or them who ſhall
ſerve the Cure his or their reaſonable Stipend, and for collecting the
Profits, yet that if the Ordinary or his Miniſter doth detain or allow
upon ſuch Account more than the new Incumbent ſhould think rea-
ſónable, he may try it by Action at Law grounded upon this Sta-
tute:
Alſo if ſuch Parſon as did attend the Cure was not then Twenty-four
Years of Age, or was only appointed by the Church-Wardens or other
Perſon, and not duly licenſed and admitted thereunto by the Ordinary,
or did not duly qualify himſelf according to the Statute 14 Car. 2. c. 4,
I conceive neither the Ordinary nor his Miniſter may, detain any Part
of the Profits in reſpect thereof, fór that his Lieence (he not being duly
qualified) is void, Stat. 13 El... 12, and Stat. 14 Car. 2. C. 4, and his
ſerving the Cure an unlawful Act. And if the Biſhop's Commiſſioner
doth employ fome neighbouring Miniſters that have Cures of their own
to ſerve ſuch Cure for the Time, without Admiſſion as aforefaid by
the Ordinary, I ſuppoſe that their Caſe is the ſame, although that
they performed the legal Acts aforeſaid to ſettle them in their own
Churches, and that alſo they may be queſtioned upon Stat. 14 Car. 2.
Sif
cap. 42
410
The Clergy-Man's Law: Or, Chap. XL.
neficés.
up
As to the In-
cumbent's
Will of Cora
Glebe.
If the Fruits
dacant Be- cap. 4, if upon ſuch Occaſion thc Reading either of Morning or E-
vening Prayers in their own Churches.be neglected.
Note alſo, That if any other Perſon than the Ordinary, or ſuch as
he ſhall appoint as his Officer or Miniſter to his Buſineſs, do tako
the Profits aforcfaid; that he by this Statute is not allowed to detain
any Part thereof, upon the Account either of ſerving the Cure, or
collecting the Profits.
As to the next Clauſe about Incumbents declaring their Wills of
Corn fowed on the Glebe, it is to be noted, that if an Incumbent
Sowed on the hath fown his Glebe, and his Church doth become void by Depriva-
tion or Reſignation, and another be inducted, it is ſaid by Coke, in the
Cafe of Moyl v. Ewer. Hill
. 11 Jac. 2 Bulftr. 184, that the new
Incumbent thall have Tithes of his Predeceſſor, and a Quære is made
by Rolle, Whether there be not a Difference where the Incumbent
dies before the Annunciation, and where he dies after ? Hill. 11 Jac.
B. R. per Cur. i Roll's Abr. 655,656. The Reaſon of which 24a-
re, I ſuppoſe to be from what is faid by Littleton. 34 H. 6. 38. b. viz.
That if a Parfon die before the Feaſt of the Conception of the
Bleſſed Virgin, by the Law of the Church the Succeffor ſhall have the
Emblements as well of the Glebe as of the Tithes, which differs from
our Law, which makes no Diſtinction as to what Time of the Year
the Dying happens to be in.
As to the laſt Cauſe concerning paying for the Cure, if the Fruits
of the Vaca- 'of the Vacation be not ſufficient for it, it muſt be remembred what is
fufficient for before faid, viz. That he who ſerves the Cure in the Vacation, mult
the Stipend. be duly qualified, admitted, c. otherwiſe I ſuppoſe the new. Incum-
bent necd noť pay him, but may plead his Incapacity in Bar. So if
ofle pretending to be Incumbent of a void Church, doth caufe a Clerk
to be duly admitted to ſerve the Cure thereof as his Curate, and af-
ter the Intruſion being detected the Church is filled, and the Curate
imployed by the pretended Incumbent is not paid his Salary or Wages,
I conceive that this Clauſe will not relieve ſuch Curate againſt the
new Incumbent, although that the Cafe ſhould be, that ſo much of
the Fruits did not ariſe in the Vacation as were ſufficient to pay
his
Salary: For this Clauſe hath Relation to the former; and therefore,
as the former Clauſe doth not enable any Intruder or meer Treſpaſſer
to detain any of the Profits, either for him that ſerves the Cure, or
for his taking up the Profits, but only the Biſhop and bis Miniſter, as
hath been ſaid ; ſo this Claufe cannot well be thought to be added
to relieve Intruders, by providing for the Payment of ſuch Curates as
are ſet up by them with Deſign to injure the next Incumbent, and to
fruſtrate this Law for whoſe Benefit it was made, but is ſtrialy to be
underſtood to provide for ſuch Curate only as ſhall be appointed by
the Ordinary, in cafe the void Church ſhall be ſo fuddenly filled, that
the Fruits that did ariſe in the Vacation were not ſufficient for the
Payment of him.
But fuppoſe that the Profits that did arife in the Vacation were fuf-
fufficient,
ficient to pay the Curate's Stipend, yet becauſe no one did take fuch
up
and not ta- Profits, they remain in the Hands of thoſe from whom they were duie,
and the Curate is not paid before a new Incumbent enters; yet I con-
ceive, altho' the Words of the Statute may not, ſtridly taking them,
reach this Cafe, that yet by an equitable Conftruction thereof the Cu
tate inay be relieved againt the nicw Incumbcnt.
But if ſuch
Profits be
kien uip
:
4
Not-
Chap. XL. The Complete Incumbent.
411
fol. 52
ritualities.
Notwithſtanding this Statute, upon the filling of a void Biſhoprick, Wacant Le-
not the new Biſhop, but the King by his Prerogative hath the Tem refices.
poralities thereof, from the Time that the ſame became void, to the King to hava
Time that a new Biſhop ſhall receive them from the King, and the Per- the Tempo-
ſon or Perſons that execute the Power of Order and Juriſdiction have void Bitho
the Perquiſites that happen by the Execution of ſuch Power, until the prick, ist.
new elected Biſhop may by Law execute the fame. And a Biſhop's
Temporalities are all ſuch Things as the Biſhops have by Livery from
the King, as Caſtles, Manors, Lands, 'Tenements, Titles, and ſuch o-
ther Certainties of which the King is anſwered during the Vacation ;
and the Spiritualities are all Manner of Juriſdiction of Courts, as
Granting of Adminiſtration, Proving of Wills, Granting Licences to What are
marry, c. and all ſuch 'Things as are managed by the Guardian of Tempora-
the Spiritualities during the Vacation are Spiritualities. Savil. Caſe 109. what are spie
And it hath been enacted, That the king thall have Elcheats of Stat. 17 E. 1.
Lands of the Freeholders of Archbiſhops and Biſhops, when ſuch cap. 14.
Tenants be attainted for Felony in Time of Vacation, whiles their
Tempozalities were in the king's hands to give at his pleaſure, la.
ving to ſuch Prelates the Service that thereto is due and accutomed.
Stat. 17 Ed. 2. cap. 14. Accordingly (the Temporalities being in
Queen Elizabeth's Hands) a Copyhold efcheated which was granted
by the Queen, and it was held to be good. Pafch. 42 Eliz. B. R. Co-
vert's Cafe. 3 Cro. 754. If a Biſhop making a Leaſe of Lands of his
Biſhoprick, doth reſerve a yearly Rent to himſelf and Succeſſors, with
a Proviſo therein, that in the Time of the Vacation of the Biſhoprick
the Rent ſhall be paid to the Dean and Chapter, this Proviſo is void
and repugnant, and ſhall not bar the King of the Rent. Paſch. 4 Eliz.
I Anderſon f. 9. Eyre's Cafe. Moor p. 51. Paſch. 5 Eliz. Ayer. v. Ome.
Dyer 221, 222. 4 Leon. 71, 72.
Though the King hath the Temporalities of a Biſhoprick during
the Avoidance, yet during ſuch Time Waſte may not be committed;
to prevent which it hath been enacted, The Keeper, ſo long as he 9H. 3. cap. g.
hath the Cuftody of the Land of ſuch an şeir thall keep up the houſes, Againſt
Parks, Warrens, pounds, mills, and other Things pertaining to be commit-
the ſame Land, with the Jlues of the Came Land, and he fhall delic ted by Keep-
ver to the heir when he cometh to his full age, all his Land dojed crs.
with Ploughs and all other Things, at the leaſt as he received it.
All theſe Chings ſhall be obſerved in the Cuftodies of archbiſhopricks,
Bithopricks, Abbeys, Projtes, Churches and Dignities vacant,
which appertain to us ; ercept this, that ſuch Cuſtody fall not be
Cold. Stat. 9 H. 3. cap. 5. And after it was enacted, becauſe that in 14 Ed. 3.c. 4.
the petition of the ſaid Prelates and Clergy it is contained, that Ef. & 5. Againit
cheatogs and other Keepers, in the Time of Uacation of Archbi: doing Waſte.
thopricks, Bifhopzicks, and other Prelacies, have done great Caffe
and Deftrudion in the ſame in Time paſt ; We will and grant foz us,
and foè our Heirs, that at all. Times from bencefožth, when ſuch
Loidances ſhall happen, that our Elcheators and the Elcheatoys of
our Heirs, which for the Time ſhall be, thall enter and cauſe to be
well kept the Caid Toidances, without doing Waffe od Deſtruction in
the manors, Warrens, Parks, Ponds, 02 Woods. And that they
fell no Underwood, 1102 hunt in the Darks of Warrens, 102 filh ini
Ponds, nor Free: Filings, no? fhall rack no, take fines of the Te.
nants free no bond, but thall keep and ſave as much as pertaineth to
Sff 2
the
412
The Clergy-Man's Law: Or, Chap. XL.
llefiori
Egoc.
Wacant Ber the ſaid coidances, without doing Harm, oz any manner of Dpprel.
fion. And if the Dean and Chapter of Churches Cathedzal, Prious,
Dubprios, Prozeſſes, Subpriovelles, and Covents of Pielacies, ab
bies, op prioces, whoſe Qoidance pertaineth to us and our Heirs,
will render to us and our Heirs the Talue of the ſaid Toidance; as
othér will reaſonably yield, then the Chancello, and Treaſurer ſhall
have power to let the Caio Dean and Chapter, Pitoz o? Subprio,
Privels of Subprojets, and Covent, the ſaid Coidances by god and
fufficient Surety, ſo that they ſhall have the ſame before all other,
yielding to us the Ualue of them, according ag tall be found bp
Remembżances of the Exchequer, oz by Jnquet to be taken upon the
famé, if need be, without making fine. and in caſe they will not ac.
cold to yield to the Aalue, noj find ſuch Surety, then the Chancel-
102 and Treaſure thall cauſe to be ordained the god Preſervation
of ſuch coidances, by Elcheators, 02 other ſufficient Keepers, to
anſwer the King of that to him pertaineth reaſonably, without
doing Tuálte oz Deftru&ion, of other Thing which may turn in
Ditheriſon of the Churches whereof ſuch Qoidances ſhall hap:
pen.
Power given Item, Wholly to thew the affection and God will which we have,
cations of a that that pertaitieth to God and poly Church be ſafely kept without
Shopricks, Ciaſte of Deſtruction, by Impeachment to be made thereof by us oz
out initers, we will, and by theſe preſent Letters do grant fuli
Power to our Caid Chancelloz and Treaſurer, which taking to them
other of our Council ſuch as to them thalt ſeem bett to be taken, by
good Jnformation of Remembiances of the Erchequer, and other 31
formations as to them thall ſeem beft, thall let the Uacations of arch:
biſhopzicks, Biſhopricks, Abbacies, priories, and other youles, which
Toidances pertain - unto us, to the Dean and Chapter, Priod of Sub.
prio, Prozeſs 02 Subpríodels, and Covent, to yield a Certain of eve:
ty Totdance by the Year, Duarter, ol onth, during the Uacations,
according as to them thall ſeem bet without making any fine. So
that no Eſchéatoi, n102 other miniſter in the Time of Wacations thall
påve Caufe to enter of meddle to do any Thing which ſhall be in Pre-
judice of the Churches whereof ſuch coidances thall happen ; Caving
to us, and to our Heirs, the Knight fees, advowlong of Churches,
Elcheats, Wards, marriages, Reliefs, and Services of the ſaid
Fees. 31n Witneſs whereof, we have made theſe our Letters Patents,
dáted at Weſtminſter the Sirteenth Day of April, the Fourteenth year
of our Reign of England, and the firſt of France. Stat. for the
Clergy: 14 Ed. 3. cap. 4, and 5.
tfa Biſhop be And it is faid, that the King's Grant of the Temporalities of a Bi-
ſhoprick in the Life of the Biſhop is good. Jenkins Cent: 5. Cafe 44.
p. 210. But though if a Biſhop be attainted of Treaſon, the King
ſhall have his Temporalities in Jure Corone. But a Biſhop having to
him and his Succeffors Bondi Felonim de ſe, commits 'Treaſon, and
then the King makes a Grant to the Almoner of Felons Goods, then
the Biſhop is attainted ; H. the Biſhop's Ieſſee for Years is Felo de ſe;
in this Cafe, not the Almoner, but the King, ſhall have this. Leaſe,
for the King's Grant after the Treaſon committed, and before the At-
tainder, was before the King had any Right; which accrued to him by
the Attainder only, ſo was but as a remote Poſſibility in the King at
the Time of his Grant not grantable. But Quæré, Inſomuch as the
Attainder hath Relation to the Time of the Treaſon committed.
attaint of
Treaſon,
3
Dyer
Chap. XL. The Complete Incumbent.
413
nefíces.
Dyer 107. Jenkins Cent. 44. Caſe 11. Hughes Abr. 959. Note, Uacant Be
That it is agreed in the Cafe above, that if a Biſhop be attaint of
Treaſon, the King ſhall have the Forfeitures of the Lands of the
Biſhoprick during the Life of the Biſhop only. See the Statutes 26 H. 8.
C. 13, and 5. E. 6. C. 11.
When a new Biſhop is made; he may not de jure before his Cónfe- When a new
cration claim the Temporalities of his Biſhoprick, although that ex claim the
gratia the King by his Letters Patents may grant them unto him after Temporali
his Confirmation, and before his Conſecration, and the Grant then ties.
made is good : But after that he is confecrated, inveſted, and inſtal-
led, he may ſue for his 'Temporalities out of the King's Hands by a
Writ de Reſtitutione Temporalium, directed to the Elcheator. F. N.
B. 169. Yet upon ſuch Writ the Temporalities are not de Jure to
be delivered until the Metropolitan hath certified the Time of his
Confecration, although that the Freehold of the Temporalities Þe in
him by the Confecration. 38 Ed. 3. Godbolt. Parſon's Law. cap. I.
Quære, If ſuch Certificate be neceſſary upon a Tranſlation.
Having before ſhewed what Charges Incumbents are liable to, and what other
Temporal
ought to allow when they enter upon their Benefices, it will be ne
Charges
ceffary to thew what other Temporal Charges every Perfon; in re- Clergy-Men,
ſpect of his Tithes and Glebe, is liable to. By the Common Law, or are lia-
Spiritual Perſons are exempted from Toll, Murage, Pontage, and Cụ- ſpe&t of their
ſtoms for their Ecclefiaftical Goods, or other Things by them bought Tithes and
for their neceſſary Subſiſtence, which appears by the Regiſter of Writs
260, and Fitz. Nat. Br. 228. But whatever Privilege or Exemption
Clergy-Men had at Common Law, yet they both in reſpect of their
Tithes and Glebe are liable to all Charges impoſed by Act of Par-
liament: They are to contribute to Watch and Ward, to repairing
of the Highways, and may be rated or taxed by the Commiſſioners
of Sewers; they as well as Lay-Men are chargeable to the poor
maimed Soldiers or poor Priſoners, Conſtable Rates, and ſhall contri-
bute towards ſatisfying for a Robbery committed within the Hun-
dred, and all other publick Charges impoſed by Act of Parliament, and
that hath been refolved 'upon Debate, as Hales Chief Juſtice ſaid be-
fore all the Judges. Trin. 27 Car. 2, in the Caſe of Web v. Batche-
lor. 3 Keb. 476, 507, and 1 Ventris 273. 2 Levinz 139. Trin. 25
Car. 2. Dominus Rex v. 3 Keble 255. Degg's Parſon's Coun-
ſellor 277. Callis Lecture on the Statute of Sewers 230, 232. Mich.
1649. Harwood v. Paytë. Stile 161, 162.
Glebe.
.
:
.
:
!
á
.
C H A P.
.
414
The Clergy-Man's Law: Or, Chap. XLI. .
Church Leas
ſes.
CH A P. XLI.
H
What Eſtates Ecclefiaftical Perſons might have
made at Common Law, and how their Power
is enlarged or leſened by Acts of Parlia-
ment, and the ſeveral Ácts of Parliament
relating thereunto.
OF
to othcrs.
Clergy-Man F a Clergy-Man's being legally poſſeſſed of an Eccleſiaſtical Be-
being legally nefice, the Effect is not only that the Lands and other Profits of
poſleſſedmay the Church are veſted in him, ſo that he may enter upon and convert
beraber Lands the fame to his own proper Uſe, but alſo that upon ſuch Induction or
Poſſeſſion only, and not before, he may let and diſpoſe of them to o-
thers, and that not only during his own Incumbency, but in ſome
Caſes to bind the Succeſſors alſo. That this is an Effect of a legal
Poſſeſſion or Seiſin, will be evident from many Caſes hereafter men-
tioned: As firſt, King Edward the Sixth having by his Letters Patents
appropriated a full Church to a Biſhop and his Succeffors, to hold the
fame after it ſhould become void, the Biſhop made a Leafe by Inden-
ture for forty Years, to commence from the Time that the faid Par-
ſonage ſhould come to the Hands of the faid Biſhop or his Succeſſors by
the Death of the Incumbent or otherwiſe (which Leaſe was confirmed
by the Dean and Chapter); the Biſhop and Incumbent being dead, the
ſucceeding Biſhop entred, and made a new Leaſe. The Opinion of
of all the Juſtices in this Cafe was, that the firſt Leaſe was void, for
that the Leſſor had no Right to, or Intereſt in the Parſonage appropria
ate during the Life of the Incumbent who ſurvived him, and who a-
lone was Teiſed of it for his Time. The like Caſe was after in the Chan-
cery between Fobſon and Michael, and was referred to Dyer and Well,
Juſtices, who determined it according to the faid Opinion. Mich. 786
8 Eliz. C. B. Dyer fol. 244. See Rector of Cheddington's Caſe, 2 Co.
155. And ſo it was held by all the Juſtices, that the Grant of a Pre-
bendary before his Inſtallation (which gives the Poffefſion) was void,
and did not charge the Prebend. Trin. 20 Eliz. C. B. Hare and Buk-
ley, Plowden 529. And the like Law is ſaid to be in the Caſe of a
Dean and Chapter, becauſe during the Life of the Incumbent they
have nothing in the Rectory, the Appropriation not being executed,
nor executable, but by their Entry after the Church becomes void.
Mich. 18 & 19 Eliz. C. B. Grendon v. the Biſhop of Lincoln, Plow-
den 5oo. b.
But what Eſtates Church-Men at this Day may make to others of
their Poſſeſſions, comes now to be declared: In order to which, for the
formerly,and better apprehending thereof, I ſhall firſt remember what Eſtates they
at this Dayro might anciently have
made, before their Power in this Reſpect was
either enlarged or leſſened by Acts of Parliament. In brief therefore,
their Poſlef- all Eccleſiaſtical Perſons had in former Times as full Power and Au-
thority to leaſe, grant, or alien, any or all of their Eccleſiaſtical Eſtates
of which they were ſeiſed in Fee, as any perſon feiſed of a Temporal
Eſtate
What Eftates
Church-Men
others of
Gons.
1
Chap. XLI. The Complete Incumbent .
415
fer.
1
Eſtate in his natural Capacity then had, or as yet hath; that is, if the Clucem
Grant made by a fole Corporation was with the Conſent of others, v
whoſe Confirmation was in ſuch Cafe neceffary. For though Deans
and Chapters, Maſters and. Fellows of Colleges, Maſters and Brethren
of Hoſpitals, and ſuch like Corporations aggregate of many, might of
themſelves alone, without the Confent or Confirination of any, have
made long Leaſes for Lives or Years, or Gifts in Tail, or Eſtates
, in
Fee to others of their Poffeffions, according to their own Wills, yet
Biſlaops, Deans, &c. feiſed in the Right of their Biſhopricks, Deaneries,
de. fo Archdeacons, Prebends, Parſons, Vicars, c. if they made the
fame Grants, muſt have had the Confent and Confirmation of others
that had Power of confirming in that Behalf, and then their Grants were
as good as the Grants made by aggregate Corporations. But the Law,
as to the Capacity of Clergy-Men with reſpect to their Eſtątcs, is at
this Day much altered, viz. by ſeveral Statutcs, and the firſt of them
is 32 H. 8. c. 28, and in thefe Words following.
Where great Number of the King's Subjects have heretofoże taken
Leales of Lands, Tenements, and other bereditan{ents, for Term
of Years, and divers of them fol Term of Lives, alſo have giveri and
pato great fines and great Sums faz the fame, and alſo have been at
great Coſts and Charges, as well in and about great Reparations
and Buildings upon their fato fems, as otherwiſe concerning their
Caio Ferms; yet notwithſtanding the ſaid fermols, after the Deaths
0 Relignations of their Lettpis, have been' and be daily with great
Cruelty erpulled and put out of their faid ferms and Takings by the
Þeirs 02 Succellois of their laid Lellos, az by ſuch Perrons as have
Intereſt therein after the Deaths of Refignations of their laid Leflors,
by reaſon of půvy Gifts of Entall, od for that the Lequis bad nothing
in the Lands, Tenements, oj othet hereditaments, lo letten at the
Tine of the Leales thereof " made, but only in the Bight of their
WHíves, or Click other like Coufe, to the great Impoverithment, and
in manner utter undoing of the ſaid Fermois: Fou Reformation where-
of, be it ojdained, etablithed and enpded by the King our SovereigII
Lord, the Lords Spiritual and Temporal, and the commpns i this
preſent Parliament aſſembled, and by authority of the Carne, That all
Leales hereafter to be made of any Manois, Lands, Tenements, 02
Other Hereditaments, by Writing indented under Seal for Term of
Pears, or for Term of Life, by any perſon el Peklons, being of full
age of Dne a lid twenty Bears, having any Eftaté of inheritance either
in Fee limple 02 in fee-tail in their own Hight, od in the BigHt QE
their Churches of allibes, 0? jointly with their Tuives, of an Eſtate
of Inheritance made before the Coverture or after, hall be good and
effectual in the Law againd the Leflors, their Wifes, peirs and Suc-
cellons, Old every of tvem, according to {uch Eltate as is compa[ed
euro ſpecified in every ſuch Judenture or Leale, in like Daytex alio
form as the ſame mould have been if the Lelous thereof, and every of
them, at the Time of the making of ſuch Leares, had been lay fully
leiſed of the fame Lands, Tenemucuts and percditaments compriſed
in ſuch Indentuće, of a good, perfect, and pure Eſtate of Fck-fimple
thereef to their own only Wles.
Provided alway, That this act, or any thing therein contained, To what
thall not ertend to any Lenſes to be made of any Manogs, Lands, this AS a
Tenements, 02 Hereditanients being the Dands of Fern102 Of not extend.
Fermods by Uertise of any oid Leale, unleſs the range old Leaſe be .[-
pired,
416
The Clergy-Man's Law : Or, Chap. XLI.
fit.
How to the
Church Lea- pired, ſurrendered, od ended within one year nert after the making of
the ſaid new Leale; nou fhall ertend to any Giant to be made of any
Reverőion of any Manors, Lands, Tenements, 02 Hereditaments,
MO? to any Leaſe of any Manols, Lands, Tenements, op heredita :
ments, which have not moſt commonly been letten to Ferm, 02 OC:
clipied by the Fermozs thereof, by the Space of Twenty Years nert
befoze ſuch Leaſe thereof made; un to any Leale to be made with:
out Jmpeachment of Waſte, 1102 to any Leale to be made above the
Number of Dne and twenty years, of three Lives at the moſt
,
from the Day of making thereof. And that upon every ſuch Lealé
there be reſerved yearly during the ſame Leale, due and payable
to the Leſſous, their Heirs and Succellois, to whom the ſame Lands
ſhould have come after the Deaths of the Lellous, if n10 Leaſe
had been thereof made, and to whom the Reverſion thereof ſhall
appertain, accoading to their Etates and Intereſts, lo much yearly
Ferm 02 Rent, od može, as hath been moſt accuttomably yielden 02
paid for the manois, Lands, Tenements, and hereditaments fo to be
letten within Twenty Years neft before ſuch Leale thereof made; and
that every ſuch perſon and Perſons to whom the Reverlion of ſuch
Danois, Lands, Tenements, 02 Hereditaments, co to be letten thall
appertain, as is aforeſaid, after the Deaths of ſuch Lellois or their
Heirs, thall and may have ſuch like Remedy, advantage, to all 3n.
tents and purpoſes againſt the Ledees thereof, their Erecutors and
Aligos, as the ſame Leftos fhould of might have bad againīt the ſame
Leffecs.
Provided alſo, That this ac ertend not to give any Liberty of
Parlons and power to any perſon o2 Perſons to take any more Ferms, Leares,
02 Takings of any qanozs, Lands, Tenements, of other Hereditas
ments, than he oz they thould og might lawfully have done before the
making of this ac ; noz ertend to any Liberty 02 Power to any Pac-
fon 02 Wicar of any Church of Vicarage, fož to make any Leale og
Gjant of any of their međuages, Lands, Tenements, Tythes, Pro-
fits, or hereditaments, belonging to their Churches of Ticarages, 0
therwiſe, o, in any other manner, than they thould oz might have done
befoje the making of this ga; any Thing contained in this act to the
contrary notwithſtanding. Stat. 32. H. 8. c. 28.
As to this Statute it may be noted, that the ſame is an enabling Sta-
an enabling tute; for whereas before the making thereof no fole Corporation could
have made any Gift, Alienation, or ſo much as Leafe for Years or
Lives to bind their Succeſſors, without the Aſſent or Confirmation of
others Quorum Intereſt, Trin. 11 Jac. C. B. the Biſhop of Salisbury's
Cafe, 10 Co. 60. By this Statute any Perſon that is ſeized of an Eſtate
in Fee-ſimple in the Right of his Church (Parſons and Vicars excepted)
are enabled to make Leaſes for Three Lives or One and twenty Years of
their own ſingle Authority, without any Confirmation, Reſpect being had
to the ſeveral Qualifications therein mentioned, Trin. 21 Eliz. Fox v.
Collier, Moor 107. And thoſe that in the Intent of this Statute are
ſaid to be feiſed of an Eſtate in Fee-ſimple in the Right of their
Churches, are only Biſhops, who are feiſed in the Right of their Bi-
fhopricks, Deans ſeiſed of their fole Poſſeſſions in the Right of their
Deaneries, and ſo Archdeacons, Prebendaries, and all other fole Corpo-
rations, except Parſons and Vicars; for they by a ſpecial Proviſo are ex-
cepted out of the Statute; for though a Prebend, &c. is not ſeized in
Fire Eccleſia, but (Prebende, &c. yet becauſe Parſons and Vicars are
eſpecially excepted, and none others, Prebends, óc. are within the
Statue
Vicars,
That this is
Statute to
folc Corpo-
rations.
2
Chap. XLI. The Completė Incumbent.
417
les.
Statute even as Biſhops; and Pophain faid in Dr. Dale's Cafe, that for Church Lea-
an Houſe near Paul's it was ſo adjudged, and ſo had had been
twice adjudged in his Experience; and Fenner ſaid, it was ſo adjudg-
ed in the Caſe of a Treaſurer of a Church, Trin. 31 Eliz. C. B. AEtoi
and Pricher's Cafe, 4 Leonard 51. Mich. 36 & 37 Eliz. B. R. Wat-
kinſon v. Man, 3 Croke 350. But 1 Inſtitute 300, is to the contrary,
Mich. 15 Car. 2. B.R. Biſco Leſſor de Strode v. Doctor Dale. I Le-
vinz 112, where 'tis faid, that a Prebend is feiſed in the Right of his
Church within the Words of the Statute 32 H. 8. c. 28. So likewife
was it adjuded in the Caſe of a Chancellor, and of a Precentor, by
reaſon theſe were but Offices and Names of Dignity annexed to the
Prebendaries; but it was then ſaid by Twiſden Juſtice, that he did not
remember that it had been ſo adjudged in the Caſe of a Treaſurer;
Mich. 15 Car. 2: B. Ri Bis v. Holt, 1 Sid. 158. i Keb. 576. But
as to the Caſe of a Precentor, it was ſaid by Hide in the fame Caſe;
that it muſt be intended thoſe who are in of an old Foundation, not
thoſe who are of new Foundations, i Levinz. 113. But as to 'Cor-
porations aggregate, as Deans and Chapters, though they be ſeiſed in
Right of their Churches, this is no enabling Statute ; for ſuch, by the
Conſent of the major part of them, might have made any Leafes or
Grants of their Eſtates without Limitations before this ſtatute was
made, and till by latter Statutes they were reſtrained, might have
done ſo afterwards, this Statute being meerly enabling, and not at all
reſtraining them. And though by this Statute the fole Corporation before
mentioned could not; without Conſent and Confirmations of others,
have made Leafes for above Three Lives or One and Twenty Years, yet
with Confirmation they might have made longer Leaſes, or abſolute
Alienations of any of their Poſſeſſions, until other Statutes did reſtrain
them.
And for the reſtraining of Biſhops was firſt made the Statue of 1 Éliz. · Eliz.c.19.
cap. 19, which is as followeth: That all Gifts, Grants, Feoffments, ing of Bi-
Fines, and other Conveyance 02 Elfates, from the firct Day of this ſhops.
pieſent Parliament, had, made, done, o2 Cuffered, O2 to be had, made;
done, ou ſuffered, by any archbiſhop oį Bilhop, of any Honours, Ca
ſtles, Manols, Lands, Tenements, oj other hereditaments, being
Parcel of the Potellion of his archbiſhoprick 02 Biſhoprick, 02 united,
appertaining of belonging to any of the ſame, to any Perlon (other than
to the Queen, her Heirs Of Succellos) wheřeby any Eñate ſhould
oj might paſs from the archbiſhop 02 Bithop other than fo2 Terin of
Dne and twenty years of Three Lives, from ſuch Time as any. Leale,
Giant, 02 alurance thall begin, and whereupon the old accuftomed
yearly Rent, oj może, thall be réſerved, payable yearly during the ſaid
Term of Dne and twenty years 02 Three Lives, ſhall be utterly void ;
any Law, Cuftom, &c. notwithlanding.
But this Statute leaving Biſhops to their former Power of granting of little Ef.
to the Queen, her Heirs and Succeſſors; took little Effect, for that
many Eſtates were granted to the Queen upon Deſign that the Queen
ſhould grant them over to others; which (ſays Biſhop Gibſon) was done Codex. 679
by an Artifice of the Courtiers, who firſt uſed Means to induce Biſhops
to paſs over ſuch Lands to the Crowni according to the Reſervation of
the foregoing Statute, and then they begg’d the ſame from the Crown,
and procured Grants thereof to them and their Heirs for ever, and
therefore the Statute of 1 Jac. C. 3, for the reſtraining of Biſhops was
made, which is as followeth.
Tt€
Edihettag
For reſtrainia
fect.
$
418
The Clergy-Man's Law : Or, Chap. XLI.
Church Leas whereas all the Archbiljopzicks and Bilopricks within this Realm of
leg.
England, were in ancient Times founded by his Dajegy's molt noble 20
Further Re- genitors, Kings of this Realm, and in reſpeã thereof, his Pajelly is
inedy by lawful and rightful Patron of all and every of the ſame ; and where allo
1 Fác. 1. to 3. by the Laws and Statutes of this Realm, no Archbiſhop o2 Biſhop
can make any Conveyance, afſurance, 02 Ecate whatſoever, of any
Honours, Caſtles, aanges, Lands, Tenements, or Hereditaments,
Parcel of the poliedions of his Archbiſhopgick oz Bifhopzick, 02 united,
appertaining oz belonging to any of the ſame, to any Subject whatſa.
ever, whereby any Eſtate ſhould or night paſs from any archbiſhop og
Biſhop, other than foTerm of Dne and twenty years o? Three Lives,
with ſuch Refervations of Rent, and in ſuch manner and form, as by
the Laws and Statutes are provided : yis moſt excellent Majects
underſtanding that divers Perſons have with great Suit and Impoze
tunity fought to fruſtrate the true End and Jatent of the ſaid good
Laws and Statutes in that Behalf, of his Chriſtian and Princely
Piety and Care, minding Co to patronize and potect the ſaid Potter
tions from Alienation of Diminution, as that the ſame may, accouding
to the true Jntent of the founders, remain and continue in Sticcel
dion to the Srchbiſhops and Bifhops of this Realin, and their Succel-
fogs, for the better maintenance of God's true Religion, keeping of
Hoſpitality, and avoiding of Dilapidations; and thereby for ever here.
after to avoid all Suits and Impožtunities foz od concerning any of the
ſaid Pollellions, hath out of his own meer and godly qotion, and of
his bleſſed Diſpoñtion fo: the publick Good, without all Regard of
any private Reſpect, vouchſafed and is pleaſed, Chat it may be eit-
acted and eſtabliſhed by bis Pajeſty, by and with the Adent of the
Loids Spiritual and Tempojal, and the Commons in this preſent
Parliament aſſembled ;
and be it enacted and eſtabliſhed by the authodity of the ſame, That
To prevent
ſuch Grants, every archbilhop and Bifhop within this Realm, and their and every of
&c. to the their Succellous, ſhall be, from and after the End of this preſent
Heirs or Suc- Sellion of Parliament, for ever wholly and utterly diſabled in Law
to inäke, do, levy, o2 Cuffer, any at 02 acts, Thing of Things,
whereby, oz by means whereof, any of the ſaid honours, Cafies,
Panois, Lands, Tenements, oj bereditaments, of any part of them,
of any of them, thall 02 may be aliened afſuced, given, granted, de:
miſed, charged, od in any Soit conveyed to our Caid sovereign Lold
the King, his heirs of Succellois : And that all alienations, aluran:
ces, and Bitts, Grants, Leafes, Charges, and Conveyances what.
foevrt, from and and after the end of this preſent Seſion of Parliaa
ment, to be done, ſuffered, 02 made to our Caid sovereign Loid the
king, his heirs o2 Succellos, by any Archbiſhop op Bithop, oj their
o any of their Succeflops, of op out of any of the ſaid potefions, o
of oz out of any part of Parcel of them, of any of them, and all and
every Confirmation and Confirmaſions of the ſame, thall be from and
after the End of this preſent Sellon of Parliament utterly void and
of none Effe&, to all Intents, Confruntions and purpoſes; any
former Law, statute, ai, Didinance, od other matter 02 Thing to
the contrary notwithſtanding. Stat. 1 Jac. c. 3.
Theſe Statutes are meerly reſtraining, ſo that altho' Biſhops might
meerly re-
with the Confirmation of the Dean and Chapter have made any Leaſe
Ktraining of or perpetual Grants, yet now with Confirmation they cannot alien or
Bishop sLca- make other Lcaſes than for Three Lives or One and twenty Years. If
tos, Egico
the
ceffors.
Theſe Sta-
tutes are
Chap. XLI. The Complete Incumbent.
419
rez.
the Statute of 32 H. 8. (of which Statute this of 1 Eliz. makes no Church Lea.
Alteration) which did under ſeveral Limitations enablc Biſhops to let
Leaſes for Threc Lives or One and twenty Years without Confirma-
tion, had not been made before this of i Eliz. they could not by this
have made any Leaſe to bind their Succeſſors without the Confirma-
tion of the Dean and Chapter, (this Statute being mecrly difenabling ;)
and therefore, if a Bishop doth make a Leaſe for One and twenty
Years or Three Lives, according to the Statute of · Eliz. yet if a11
the Limitations preſcribed by the Statute of 32 H. 8. be not duly
purſued, as if it be not all in Poſſeſſion, or that the old Leaſe be not
expired or ſurrendered within One Year when a new one is made,
(which is not prohibited by the Statute of 1 Eliz.) ſuch Leaſe ſhali
not bind the Succeſſor, unleſs it be confirmed by the Dean and Chap-
ter, Trin. 11 Jac. C. B. the Biſhop of Salisbury's Cafe. 1o Co.60. Trin.
21 Eliz. Fux. v. Collier, Moor 108. Note, That this Statute i Eliz.
is but a private or particular Statute, and muſt be eſpecially pleaded,
elſe the Court will not take Notice thereof. Hill. 3. Jac. Valentine v.
Denton, 2 Cro. 112. Trin. 30 Eliz. B. R. Elmer's Cafe, 5 Co. 2.
fame Cafe, Moor 253. 4 Co. Holland's Cafe, 76. 2 Rolis Abr. 466. But
this Statute being made only for the diſenabling Biſhops, another dif-
abling Statute was made to extend to all other Eccleſiaſtical Perſons,
as alſo to Colleges, &c. which is as followeth.
And foz that long and unreaſonable Leates made by Colleges, Deans Another dif
and Chapters, Parſons and Wicars, and other having Spiritual Pio abling Sta-
motions, be the chiefeſt Cauſes of the Dilapidations, and the Decay of ing to allo-
all Spiritual Livings and poſpitalities, and the utter impoveriſhing of ther Eccleli-
all Succellois Incumbents of the ſame; Be it enađed by the Author fons, aspetto
rity aforeſaid, That from hencefożth all Leaſes, Gifts, Grants, Feoff- to Colleges
ments, Conveyances of Eſtates, to be made, bad, done ou ſuffered by to make long
any gaffer and fellows of any College, Dean and Chapter of any 1; Eliz. c. 10.
Cathedjal 02 Collegiate Church, after og Guardian of any Hoſpital
Parſon, Uicar, oz any other having any Spiritual ol Eccleliatical
Living, oz any houlez, Lands, Tythes, Tenements, oj other here.
ditaments, being any Parcel of the Potreſions of any ſuch College,
Cathedjal Ciurch, Chapel, Hoſpital, Parlonage, Uicarage, oj othec
Spiritual Promotion, 02 any Ways appertaining or belonging to the
ſame oz any of theņi, to any perſon 02 Perſons, Bodies Politick og
Coppojate, (other than for the Term of Dne and twenty Pears, og
Chee Lives, from the Time as any ſuch Leale ol Ozant mall be made
D2 granted, whereupon the accuſtomed yearly Rent oj moze fhall be res
ſervéd, and payable yearly during the ſaid Term) thall be utterly void,
and of none Effet, to all Intents, Contructions and purpoſes ; any
Law, Cuftom, 02 Ulage to the contrary any Ways notwithſtanding.
Provided nevertheleſs, and be it enacted by the authority aforeſaid,
That this aa, nou any Thing therein contained, ſhall be taken op.c0n
ftrued to make good ariy Leaſe oz other Weant to be made by any ſuch
College of Collegiate Church within either of both the Univerſities of
Oxford and Canibridge, oj ellwhere within the Realm of England, for
moje Years than are limited by the private Statutes of the Came
College.
Provided always, That this gå Mall not extend to any Leale heres
after to be made upon Surrender of any Leaſe beretofole made, od by
reaſon of any Covenant 01 Condition contained in any Leale heretos
foje miade, and now continuing, ſo that the Leare to be made 'do nat
Tott. 2
contaiit
$20
The Clergy-Man's Law: Or, Chap. XLI
les.
This Statuts
This Statute
always con-
$ iurchl_esc colitain more years than the Refidue of the Bears of the former Leale
now continuing chall be at the Time of lucb Leale hereafter to be
made, not any Tels Kent than is reſerved in the ſaio fozmet Leale.
Stat. 13 Eliz. cap. 10.
Firſt note, that though this Statute hath general Words, And all die
not to extend thers having any spiritual o? Ecclefiaftical Livings, &c. yet doth it
not extend to Biſhops, becauſe it begins with others of inferior Order
to them, and ſo thoſe general Words after ougħt to be ſupplied with
Intention of other inferior, or at leaſt but equal to thoſe that are fpe-
cified beforė by Coke, Hill
. 43 Eliz. Gouldsborough 171, and ſo it is
faid, 13 Jäć. Warren v. Smith, or Magdalen College Cafe, 1 Rolls
Rep. iši, yet it hath been adjudged, that this Statue is a general
Law, 4.Co. Duinper's Cafe, 20. 4 Co. Holland's Cafe, 76. 2 Rolls Abr.
465, dubitatir. Paſch. 32 Eliz. 2. Carter v. Damé Cromwel
, Ge. Sa-
vil's Caſc, 198. 1 Leon. 306. Trin. 27 Cař. 2. C. B. The Chapter of
the Collegiate Church of Southwel v. Biſhop of Lincoln, &c. i Mod.
Rep. 204.
Secondly note, This Statutë hath always been conſtrued largely and
beneficially, to prevent all Inventions and Evafions againſt the true In-
frued large- tention of it; therefore, whereas the Statute faith, gatters and fel-
ly.
fotos of any Colléğé, be the College incoporate by the fame Name,
or by the Name of Warden and Fellows, or Warden and Scholars, or
Warden, Fellows and Scholars, or Provoſt and Scholars, or by any o-
ther Name of Corporations; and be the College Temporal for the Ad-
våncement of the Liberal Arts and Sciences, or meer Eccleſiaſtical, or
mix'd, it is ſaid to be often held that every ſuch College is within the
Proviſion of this Act; and ſo where the Statute faith, 9atér o2 War:
diétis of any hoſpital, be the Hoſpital incorporate by any other Name,
oř be it a fole Corporation, or a Corporation aggregate of many, the
Statute doth extend to it; and fo of the reſt: The Caſe of the Maſter
and Fellows of Magdalen College in Cambridge, Paſch. i3 Jác. 11 Co.
fol. 76.
Queen bound
So though the King is not named in this Act, yet it was reſolved in
by this Sia- Parliament, 43 Eliz. by Popham and Anderſon, that the Queen was
bound thereby; and this Reſolution was allowed of by the Lords and
Commons in Parliament; which was the Reaſon why thoſe Perſons
that were reſtrained by this Act were not put into the Statute of 1 Jac.
with Biſhops; for at the Parliament held i Faс. it was upon making
the A&t for to bar Biſhops from alienating to the King, reſolved again
by the Juſtices Affiſtants, that by the 13 Elig. cap. 10, they were al-
ready in that Cafe reſtrained: 'The Caſe of the Maſter and Fellows
of Magdalen College in Cambridge, Paſch. 13 Jac. 11 Co. 75, fame
Cafe, 1 Roll's Rep. 151. But it ſeems the Law for fome Time was
taken to be, that the King was not bound by this Statute of 13 Éliz.
and for that Reaſon when a Dean and Chapter had leaſed Land to the
King for a valuable Confideration, at ſuch Time when the Law was
taken to be that the King was not bound by this Statute, and the King
did aſſign it over, the Aſſignee (after the Law was taken to be that
the King was bound thereby) had his Leaſe made good to him by the
Court of Chancery againſt the Statute, for that he could not know the
Lawin a Matter ſo dubious, but decreed thathe ſhould pay Two hundred
Pounds to the Dean and Chąpter, Mich. 16 Jac. Long v. the Dean
and Chapter of Briſtol; and the like Decree was made between Mag-
dalene College and IVood. i Rolls Abr. 378.
Thirdly
fute.
1
Chap. XLI. The Complete Incumbent.
421
Irr.
ľ
32
I. X
Il
Thirdly note, That this Statute makes no Alterarion of the Statute ClurehLea-
of H.'8. but leaveth it as a Pattern in many things for Leafcs to be
made by Eccleſiáſtical Corporations aggregate, which are not within the afters &
Stattitc.
Ź:
Fourthly note, That ino Leaſe made according to this reſtraining
Statute of 13 Eliz. by any ſigle Corporation, as Dean, Archdeacoli,
&c. if it be not with Regard to the Limitations in 32 H. 8. is good,
without the Confirmation of thoſe who by Law are to confirm the
fame.
Fifthly note, That as to Houſes in Citics and great Towns, the Sta-
tute of 13 Eliz. cap. 10, is altered by a Claufe in the Statute of 14
Eliz. cap. 11, which is in theſe Words :
CUhereas in an da made 13 Eliz. entituled, an gå againli fraudti. Alteration of
tent Gifts, to the Intent to defeat Dilapidations of Ecclefiafticat !; Eliz. by
Livings, and for Leales to be granted by Collegiaté Churches, there as to Houfes
is one Blanch to avoid certain Leaſes to be made by afterg and Fel- in Cities and
lows of Colleges, Deans and Chapters of Cathedral 02 Collegiate creat Tow:s.
Churches, maſterg or Guardians of any Hoſpital, or by any Parlon,
Ticar, oz any other having any Spiritual 0? Ecclefiaftical Living
Be it enacted, That the faid Branch, noj any Thing therein contain:
ed, thall not ertend to any Grant, aflurance, 02 Leale of any poules
belonging to any Perlong, 02 Bodies Politick o, Cozpojate aforelato,
noz to any Grounds to ſuch houſes appertaining, which houſes be fi
tuate in any City, Borough, Town-Corpojate, od Barket-Town, 02
the Suburbs of any of them, but that all ſuch houſes and Grounds
may be granted, demtfed, and aftred, as by the Laws of this Realm,
and the ſeveral Statutes of the ſaid Colleges, Cathedral Churches
and yofpitals, they lawfully might have been before the making of the
ſaid Statute, og lawfully might be if the ſaid Statute were not, co al-
way that ſuch houſe be not tije Capital od Dwelling houſe uſed for the
habitation of the perſons aboveľaid, not have Ground to the ſame
belonging, above the Duantity of Ten Acres; any Ching in the ſaid
ad to the contrary not wrthftanding.
Provided alway, and be it enacted, That no Leale djali be permitted Proviſo às
to be made by force of this gå in Reverſion, 11oy without referving saint Leaſes
the accutomed pearly Rent at the leat, nor without charging the and Aliena:
Lettee with the Reparation, nor for longer Cerm than forty years tions, escu
at the moſt; nou any poules ſhall be permitted to be altened, unleſs
that in Recompence thereof there thall be afore, with, or preſently af-
ter ſuch glienation, good, tawful aud ſuffictent affirrance made in Fee:
Iimple abſolutely to fuch Colleges, moules, Bodies Polítick 02 Cod:
pojate, and their Succetſozs of Lands of as good Walue, and of as
great a Yearly Calue at the leaſt, as lo fall be aliened; any Statute
to the contrary notwithſtanding.
Note, That this Statute of 14 Eliz. doth make no Alteration of the Gives nofur-
Statute of i Eliz. c. 19, nor hath any Relation to it, but only to the ther: Power
to Biſhops.
Statute of 13 Eliz. c. 10, and therefore gives no Power to Biſhops to
let Houſes, otherwiſe than according to the faid Statute of 1 Eliz. nor
to exchange for any Recompence.
Note alſo, That this Statute need not to be found by Verdia, be- 14 Eliz. a ges
ing it is a general Law. Pafch. 39 Eliz. C. B. Hunt v. Singletoni, peral Stati
2 Cro. 564.
By this Statute it ſeems no Leaſes may be made of Houſes in Rever-
fion, which was not reſtrained by the Statute of 13 Eliz, as appears by
the
2
422 The Clergy-Man's Law: Or, Chap. XLI.
ſtb.
i
18 Eliz. C. II.
To make
Esco
Church Lea: the Statute of 18 Eliz. cap. 11, by which Statute that Miſchief is
provided for, as not provided for before, as followeth.
Dithence the making of which statuie (viz. 13 Eliz. cap. 10.) di
vers Ecclefiaftical and Spiritual Perſons, and others having Spiri,
L.cafes where tual 02 Ecclelaftical Livings, have from Time to Time made Leates
the former fol the Term of Dne and twenty years of Three Lives, long befoze
Lcaſe did not the Erpiration of the former Years, contrary to the true weaning
Three Years, and Intent of the ſaid Statute: Be it therefore enacted by this ple
.
ſent Parliament, That all Leaſes hereafter to be made by any of the
ſaid EccleliaQical, Spiritual, od Collegiate Perſons, oj others, of
any the ſaid Ecclefiaftical, Spiritual, ol Collegiate tands, Tenenients
oHereditaments whereof any former Leale for Pears is in being,
not to be expired, ſurrendied op ended within Three years nert after
the making of any ſuch new Leale, ſhall be void, fruſtrate, and of
none Effect ; any Law, Ulage 02 Cuſtom to the contrary notwith-
ſtanding.
And be it likewiſe enacted by the authority aforeſaid, Chat all and
every Bond and Covenant whatſoever bereafter to be made, for re.
newing of making of any Leaſe. 02 Leaſes, contrary to the true
Intent of this act, 02 of the ſaid act made in tije Thirteenth
year,
thall be utterly void; any Law, Statute, Didinance, 02 Other Thing
whatſoever, to the contrary in any wiſe notwithſtanding.
Provided always, That this Act, nor any Ching therein contained,
thall ertend od be prejudicial to make, fruſtrate 02 void any Leaſe oz
Leales heretofoze made by any of the ſaid Spiritual 02 Ecclefiaftical
Perſon od Perſons, o auy of them, but that the ſame, and every of
them, are of the like. Fonce and Effeä as they od any of them were
before the making of this preſent Statute ; this act oz any Thing
therein contained to the contrary notwithſtanding.
And wifereas in one other statute made in the ſaid Thirteenth
Year of her majeſiy, entituled, An touching Leales of Benefices,
and other Eccleliaftical Livings with Cure, one Claule is contained,
That the incumbent offending the Purpout of the ſaid Statute, chali
foy the ſame loſe Dnie Year's Profit of his laid Benefice, to be diftris
buted by the Dedinary among the Pood of the Parith, as by the ſaid
Branch in the ſaid latt recited Statute appeareth: Be it therefore
enađed by the authority aforeſaid, That after Complaint made to the
Didinary, and Sentence given upon any Dffence committed by the
Jlncumbent, whereby be call of ought to loſe Dne Year's Profit of
bis Benefice, as afore thewed ; that the Didinary within Two months
after ſuch Sentence givell, and Requeſt to him made by the Church:
wardens of the ſaid Parill), O2 one of them, thall grant the Seque.
ftration of ſuch profits to ſuch inhabitant 02 Juhabitants within the
Parith where ſuch Benefice thall be, as to him fhall Cèemi meet and con:
venient ; and upon Default therein by the Didinary, that it may and
ſhall be lawful to every pariſhioner where the Benefice. is, to retalii
and keep his of their Tythes, and likewiſe fou the Church-wardens of
the ſaid Pariſh to enter and take the Profits of the Glebe Lands, alid
other Rents and Duties of every ſuch Benefice, to bé employed to
the Uſe of the Pooj, as aforeſaid, uitil luch Time as Sequcftration
fy:ill be committed by the Didinary, and then as well the Church-
wardens as' Pariſhioners to yield account of, and make Payment to
him oj them, to whom (uch Sequeſtration thall be committed; and
that he od they to whom tich Sequeſtration thall be committed from
Time to time, thall *juftly and truly eniploy and brftow the raid 1920-
fits,
:
i
1
2
Chap. XLI.
The Complete Incumbent.
423
B? the true and juſt walue thereof, without Fraud 02 Guile, to Churct Lens
fits,
fes.
ſuch uſes as by the ſaid Statute is limited and appointed, upon Pain
of f feiture of the double Walue of ſuch with bolden Profits, to be
recovered in the Ecclefiaftical Court by the Poop of the ſaid Parill.
As the Statute of 14 Eliz. c. 11, is in reſpect of Houſes in Cities, whether the
&c. a new Law of it felf, differing from 13 Eliz. c. 10, ſo this Sta- Eliz, extends
tute of 18 Eliz. hath no Relation to that of 14 Eliz. therefore the to 14 Eliz.
Clauſc in 18 Eliz. which makes Bonds and Covenants void, which
are made for the renewing or niaking of Leaſes contrary to the Sta-
tutes, doth not extend to Houfes mentioned by this Statute; according-
ly, when the Cafe was, that the Dean and Chapter by their ſpecial
Names had covenanted jointly and ſeverally to make a Leaſe of an
Houſe in London; and upon an Action brought againſt the Dean and
one of the Prebendaries, the Leaſe and Covenant was upon Demyrrer
argued to be void by the Statute of 18 Eliz. but it was adjudged,
that the Covenant was good in Law, becauſe it was not within the
Statute of 18 Eliz. being made concerning an Houſe in London ; for
it was ſaid, though the Statute of 13 Eliz. c. 1o, be general againſt
all Leaſes and Grants, other than for One and twenty Years or Three
Lives, of all the Poſſeſſions of Deans and Chapters, &c. yet there is
a Statute of 14 Eliz. c. 11, which is ſhụfed into an Act of Continų.
ance of Statutes, that enacts, That that Statute 13 Eliz. (meaning
it) fhall not ertend to any houſes in Cities, 02 Towns, &c. but
that the ſame may be granted, demiſed od aſſured as they might law-
fully bave been before, and as if that Statute had not been made
fo that Statute ſets all looſe touching ſuch Houſes in Cities as againſt
the Statute of 13 Eliz. and therefore that Statute of 14 Eliz. cap. II,
makes a new Law of it ſelf for them. Then comes the Statute of
18 Eliz. which recites, that ſince the making of the Statute of 13
Eliz, divers Leaſes were made long before the Expiration of the for-
mer, againſt the Meaning of the Statute of 13 Eliz. and enacteth,
That all Leaſes made of Lands whereof any former Leaſe was then
in being, and not to be ended within Three years, mould be vold,
and that all Bonds and Covenants for making Leaſes again the
Intent of 18 02 13 Eliz. Chould be void; ſo that this Statute toucheth
not the Statute of 14 Eliz. which permitted not Leaſes in Reverſion,
and ſo voids not Bonds and Covenants which touch Houſes in Cities,
&c. Trin. 14 Jac. Crane v. Taylor. Hobart 269, but Trin. 25 Car. 2.
B. R. in Bayly and Munn's Cafe. i Vent. 246. My Lord Chief Ju-
ſtice Hale inclined to be of a contrary Opinion, viz. thạt the Statute
of 18 Eliz. did extend to that of 14 Eliz. which fce after in Ch. 42.
fol. 808. So upon the Statute of 14 Eliz. cap. 11, the Caſe being,
that a Parſon covenanted with A. that he ſhould have his Tithes for
Thirteen Years, and afterwards reſigned, and another Parfon was in-
ducted, by which Means A. being ouſted of his Tithes, brought an
Action of Covenant againſt his Leſfor, to which the Defendant pleaded
the Statute of 18 Eliz. in Bar. And it was adjudged by Coke, Dod-
deridge and Haughton, that this Covenant was not made void by the
Statute, for that Statute, as appears by the Preamble of it, intended
to make Bonds and Covenants void contrary to the Proviſion
of
13
El.
but doth not extend to Bonds and Covenants made for the Enjoyment
of Leaſes, which do become void by Reſignation, &c. which are
Voicances by the Common Law. Trin. 14 Jac. B. R. Rudge v. Tho=
mas. 3 Bulftrode 202. So a Leaſe made for Sixty Years before the
Ştatute
I
424
The Clergy-Man's Law: Or, Chap. XLI.
18.
14
Eliz.
Practices
vain.
Church Lea- Statute of 13 Eliz. and confirmed by the Patron and Ordinary, and
r
the Succeſſor became bound in a Bond after the Statute of
that the Leſlee ſhould enjoy the Leaſe during the Term, and after is
non-reſident above Eighty Days in one Year : Adjudged, that this
Bond was not void by the Statute of 14 Eliz. becauſe the Leaſe was
a good Leaſe ; and the Bond given for the Enjoyment of that Leaſe,
which the Succeffor could not avoid, is a good Bond. Paſch. 42 El.
Coſtard v. Wingate. 3 Cro. 775. Same Caſe. Moor 606.
Practices it feems have been uſed to avoid this Statute of 18 Eliz.
uſed againſt and the Clauſe making void Bonds and Covenants againſt the Provi-
ſion of it, and alſo 13 Eliz. c. 10, to make them of none Effect, but
in vain ; for the Cafe was, that the Dean and Chapter of Windſor,
in the 35th Year of the Queen, made an Agreement amongſt them-
felves by Lots, to have an Aſſurance of a Leafe to each of them of
certain Part of the Poſſeſſions of their Church, which after the Lots
caſt, whereby every one knew his Leaſe, they executed the Aſſurance
in this Manner: The Corporation enters into an Obligation of soclo
to every, Canon that was to have a Leaſe, and the Payment limited to
be within a ſhort Time before the Expiration of the old Leaſe in
Being; and the Canon the fame Day entred into an Obligation to pay
to the College the Sum of siol. at the ſame Time, if they did make
a Leaſe according to a Schedule annexed, which Schedule was vcrba-
tim the Demiſe agreed to be made. And it was further proved, that
the Intent and Agreement betwixt them was, That the one 500l.
ſhould be ſtopped for the other 500l. and that the Corporation ſhould
only have the 10 l. for the Leafe ; upon which Matter (Egerton Chan-
cellor) made a Decree, that the Obligation of sooli made by the Dean
and Canons to each Canon was void by the Statute of 18 El. And there
was vicwed the Precedent of a Cafe between Fry and the Dean and Ca-
nons of Wells, decreed 44 El. in Chancery, which was thus : Fry gave to
the Dean and Canons of Wells 1000 l. and took an Obligation of
2000 l. with Condition to repay the 1000 l. and for Non-payment he
brought an Action of Debt againſt the Dean and Prebends, and ob-
tained a Judgment, and made a Defeafance of the Judgment, that
if they make to him a Leaſe of Land that was then in Leaſe to Sir
Amias Pawlet for Fifteen Years to come, that then the Judgment
ſhould be void. And the Truth of the Caſe was, that the Thouſand
Pounds were paid, and that Six hundred Pounds thereof was employed
in Payment of Tenths due by the Church; yet by the Opinion of Pop-
ham, Anderſon and Pirryam it was decreed in Chancery, that the Judg-
nient was void by the Statute of 18 El. which faith, that Bonds and Co-
venants, &c. ſhall be void, which are made for making of a Leaſe a-
gainſt this Statute, or the Statute of 13 Eliz. C. 10. But by way of
Arbitrament they awarded to Fry the 600 l. which was paid and im-
ployed in the Affairs of the Church. Hill. 4 Jac. the Dean and Canons
of Windſor v. Gilbert Penvin. Moor 789.
And note, That this Statute of 18 Eliz. C. 11, is a general Statute
general Sra- 4 Co. Holland's Caſe. 76. 2 Roll's Abr. 465.
To the foregoing Statutes of 13, 14, and 18 Eliz. &c. we may well
Stat. 39 Eliz.
c. 7. Se#. 8. add the following Clauſe of 39 Eliz. cap. 7. viz. Provided alco, and be
it enađed, That this act or any Thing therein contained, thall not extend
to give any pomer ol authority to make any Sale Corrveyance of
affurance of any manozs, Lands, Tenements, 02 Hereditaments of
any Archbilop, Biſhop, Dean and Chapter, oz of any other Ecclelia:
ftical Perloii, whereof be oz they, 02 any of them be, 02 bereafter
fball
i8 Eliz. a
tute.
I
Chap. XLI. The Complete Incumbent: .
425
thall be ſeized in the Right of his or their Biſhoprick, Church, 0. 0. Curch
Leares.
ther Corporation Ecclefiaftical whatſoever.
And alſo the folloiving Clauſes in the Státute 22 Car. 2. cap. 11, Clauses of
That fou ever hereafter the payo! and Commonalty, and Citizens 2. Cam. 2. c.
of London, may and ſhall have a Mackct to be kept Three o? Folie king long
Days in the Week, as to them thall ſeent convenient, lipon the Leates by
Glound now ſet out by the Alent of the Dean and Chapter of the Dean and
Cathedral Church of St. Paul's London, foz a Parket Place within St. Paul's.
Newgate. And that the ſaid Dean and Chapter Thall make and give
one 02 moze Lealè op Leales of the ſaid Hround to the ſaid Payo!,
Commonialty and Citizens, and alſo of the Wall of the ſaid Church:
Pard, abutting ſeverally tipon Patér-nofter-Row, and the Old Change,
for the Term of forty years, reſerving the yearly Rent of four
Pounds for the Ground of the ſaid Market Place, and cwo pence
for every ſuperficial foot of the Hound of Soil of the ſaid wall,
as it is now ſet out by the Surveyors of the City, and of the ſaid
Dean and Chapter ; and (o from Folty Years to fojty years for ea
ver, at the like yearly Rent, and one Year's Rent after the Rates
aforeſaid, to be paid by Tlay of fine for each of the Caid Glounds
reſpectively, upon the making every new Leaſe thereof ; which caid
Leaſe and Leales fall be good and effequal in the Law as againſt the
ſaid Dean and Chapter, and their Succellors, and all perfons claiin-
ing by, from od under them : and that no Houſe, Shed, 02 other
Building, thall ſtand, 02 hereafteč be eređed and fired upon the ſaid
Market Place, other than the Market-Houle already built, without
the Concent of the faid Dean and Chapter ; any Thing in this oz any
other act to the contrary notwithſtanding.
and whereas the ſaid Parſons and Uicars, of ſome of them (mean-Ànd Parſons
ing Parſons and Vicars within the Cïty of London) are intereſſed in ſes and Vicars of
veral Gleb2 Lands 02 Grounds, the which they cannot rebuild then: Glebe Land
ſelves, noz let ſuch Leale od Leaſes as may be an Encouragement fo2 in London.
others to rebuild the ſame ; Be it enacted by the authority afojelaid,
Chat the ſaid Parſons and Aicars, and every of them reſpexively,
be empowzed, and are hereby impowied to let Cuch Leale 02 Leaſes of
their Caid Glebe Lands or Grounds, with the Concent and approba-
tion of the Patron ol Patrons and Didinary, for any Term not eć.
ceeding Folty Pears, and at auch yearly Rents without fine as cant
be obtained for the ſame : and that 110 Laples incurred upon any Nons
preſentation, in due Time of any of the Patrons of the Caid Livings
dince the ſaid fire, fhall any Tays prejudice or make void the Peelen-
tations that the ſaid Patrons have ſince made, whereupon any Ericum
bent is lilice inſtituted and induđed; any Law ol Statute to the colis
trary in any wiſe notwityftanding. 22 Car. 2. cap. 11.
1
Uuu
CH A P.
426
The Clergy-Man's Law: Or, Chap. XLII.
1Biſhop:
Leales.
CHA P. XLII.
What Leaſes and Eſtates Biſhops, &c. may
make, and the Rules to be obſerved in ma-
king ſuch Leaſes and Eſtates, and what
Offices, &c. they may grant.
That ſince
1 Eliz. c. 19,
and 13 Eliz.
cap. 10, no
Epc. can alien
Where
Grants to
build make
tion.
gives fome
Aving in the foregoing Chapter ſet down the ſeveral Statutes,
which either enlarge or leſſen the Capacity of Clergy-Men with
reſpect to their Eſtates; I ſhall next conſider them together. And
Ecclefiafti- from all thefe Statutes ſo conſidered it will appear, that whatever the
cal Perſon,
Law was, at this Day, generally ſpeaking, no Eccleſiaſtical or Colle-
Lands, Eyoc. giate Perſon, or Corporation, can alien any of their Manors, Lands
or Tenements
, by any Ways or Means whatſoever; for though be-
fore the Statute of i Eliz. cap. 19, and 13 Eliz. cap. 10, were
made, they might have aliened, yet by the ſaid Statutes they are now
reſtrained.
But note, That if any Perſon obtain a Grant to build Houſes on
Church or College Land, and this is confirmed, (in caſe the Grants of
no Aliena- the Grantor need to be confirmed,) this Grant makes no Alienation,
but is only as a Licence or Covenant and no other, for the Soil re-
mains in the Grantor, and ſo by confequence the Houſes are alſo in
him; by Hutton. Mich. 3 Car. C. B. the Mayor and Commonalty of
Wincheſter's Cafe. Hetly 57.
14 El. C. II,
However, by the Statute of 14 Eliz. cap. 11, all but Biſhops, viz.
ſuch as are reſtrained by 13 Eliz. have fome Liberty given them, as
alien in Fee
. to alienating of Houſes mentioned in the ſaid 14 El. for there 'tis faid,
That by this Statute not any houſes ſhall be permitted to be aliened,
unleſs that in Recompence thereof there ſhall be afore, with, 02 pies
fently after ſuch Alienation, good, lawful and ſufficient alurance made
in Fee-ſimple abſolutely to Cuch Colleges, &c. and their Succefois,
of Lands to as great Walue as the houſes aliened. So that with
ſuch Recompence they may alien in Fee, which was not permitted by
the Statute of 13 Eliz. Trin. 4. Jac. in Crane and Taylor's Cafe.
Hobart 269. But this Liberty given, ſeems to be reſtrained to ſuch
Houſes only, as by the faid Statute may be let for Forty Years, viz.
to Houſes in Cities, doc. however they are not enabled to exchange
any Lands by this Statute, but remain diſabled
as to that by Statute
of 13 Eliz. as 'tis faid, Trin. 40 Eliz. C. B. Turther's Café. Noy 5.
And Quære, whether Houſes may be exchanged for Lands of greater
Value without Licence againſt the Statutes of Mortmain. However,
if a Pariſh be upon the Deſign of incloſing, and a Parfon hath Tithes
in Kind, and Common for Beaſts in the Fields, a Decree may be had
in Chancery, that he ſhall
take a Quantity of Ground in Lieu there-
of. Underhil v. Fogner. Tothil 251. tit. Tithes. And when one had
a Leaſe of Tithes in Kind, it was ordered in Chancery, that a Com-
million ſhould go forth, for ſetting out Meadows and other Grounds
in licu thereof. 12 Jac. Hungate v. Croke. Tothib 251. tit. Tithes.
2
As
Chap. XLII. The Complete Incumbent.
427
Leales.
cios,
six
As Eccleſiaſtical Perſons cannot at this Day alien their Poffeilions; Billicp.
ſo though before theſe Statutes i and 13 Eliz. ſome of them were
even as others bound by Fine and Non-claim. Paſch. 13 Jac. B. R. Succeñ
JVarren v. Smith, or Magdalen College's Cafe. 1 Roll's Rep. 171. Yet port
at this Day, albeit a Fine be levied of their poſſeſſions, and no Claim ti
be made in Five Years, the Succeſſors ſhall not be bound thereby : N.:
For by the Words of both Statutes, viz. I and 13 Eliz. they are re-
ſtrained from ſuffering their Poffefſions to paſs from them, and by Non-
claim an Eſtate is ſo permitted or ſuffered.
And as to Perſons within the Statute of 13 Eliz. there was this Cafe 150 THE
The Maſters and Fellows of the College of St. Mary Magdaler om
the Univerſity of Cambridge, being ſeized of a Meſſuage with the so-
purtenances in their Demeſne as of Fee in the Right of the ſaid Col-
lege, in the 17th Year of Eliz. by their Deed between the ſaid Queen
of the one Part, and the ſaid Maſters and Fellows of the other Puri,
and enrolled in Chancery, did give and grant unto the ſaid Queen, all
that their Meſſuage, &c. with the Appurtenances, to have and to
hold for ever, yielding and paying a certain Rent yearly at a Day,
with Clauſe of Diſtreſs, and under this Condition, or Proviſo, That
if the Queen, her Heirs and Succeffors, ſhall not ſufficiently convey,
and aſſure by Letters Patents under the Great Seal of England the
faid Meſſuage, with the Appurtenances, to one Spinola and his Heirs,
before the Firſt Day of April next enſuing, that then their Indenture,
and every Gift, Grant, and Article therein contained, ſhall ceaſe, and
be utterly void and of none Effect, &c. whereupon the Queen granted
the faid Meſſuage accordingly to the faid Spinola, which he did bar-
gain and fell to the Earl of Oxon and his Heirs, by force whereof the
faid Earl entred, and was thereof ſeized, and being fo ſeized, A. B.
and his wife levied a Fine of the ſaid Houſe with the Appurtenances
to the ſaid Earl and his Heirs, with Proclamations according to the
Statute ; and after the faid Earl leaſed the ſame for Fifty Years, af-
ter which Leafe, the Maſter of the College that made the Leaſe died,
and a new Maſter being made, the Earl's Tenant paid to him 15 l.
of Rent, which was received by the ſaid new Maſter, who by a Wri-
ting under his Hand, without Scal, acknowledged the Receipt thercof,
and within Five Years after he was elected Maſter, and after he had
received the faid Rent, did enter into the faid Meſſuage, and leaſed
the fame to another, &c. In this Caſe it was adjudged, that the ſaid That a Fine
Fine and Non-claim of Five Years ſhould not bind the Right of the
Maſter and Fellows of the ſaid College for ever, and that for two
Cauſes; Firſt, the Words of the Act of 13 Eliz. are, That all Leaſes, their Right
for two Reaa
Gifts, and Conveyances of Eữates had, made, done of ſuffered by fons.
any Maſters of Fellows of any College, &c. thall be utterly void and
of none Effect, to all Jntents, Conftru&ionis, and purpoſes, any
Law, Cuſtom oz Alage to the contrary notwithſtanding, and in this
Cafe there is a Conveyance and Eſtate permitted or ſuffered by the
Maſter and Fellows of the ſaid College ; and that theſe Words ſhall
not be extended only when the Maſters and Fellows ſuffer a Recovery,
Gc. againſt themfelves as Party thereunto, but generally, according
to the Letter, when they ſuffer others to levy a Finc with Proclama-
tion, and Five Years to paſs without Claim; and although that the
Concluſion of the Purview of the Act is, Shall be utterly void and of
none Effect, to all Intents, Conffruâions, and purpoſes; yet by
Conſtruction it ſhall be taken, that the ſaid Fine levied with Procla-
U uu 2
mation,
and Non-
claim ſhould
not bind
428
The Clergy-Man's Law: Or, Chap XLII.
Bilhors
Leales.
.
Thall be
bound by
Fine and
mation, &c. ſhall be void and of none Effect to bind the Right cf
the Maſter and Fellows of the ſaid College ; for it ſhould have been
to no Purpoſe to have prohibited them to bar the Right of their Col-
leges by Conveyances made by the Maſter and Fellows themſelves,
and to have left them Power by their Permiſſion or Sufferance, or Non-
elaim to bar it; and to that Purpoſe theſe Words (permitted or Sreffered]
were added.
The ſecond Reaſon was, That forafmuch as the ſaid Eſtate con-
veyed to the Queen, was of Force during the Life of the Mafter that
made the Leafe, and that he was alive at the Time of the Fine le-
vied, and all the Proclamations paſſed in his Time, ſo that none could
have made an Entry or Claim during his Life ; and that the fucceed-
ing Maſter within Five Years after his Death did enter into the ſaid
Houſe, claiming the fame as the Right of him and his Fellows of
the faid College. For theſe Caufes and Reafons it was alſo rcfolved,
that this Entry hath avoided the Fine. Pafch. 13 Jac. the Caſe of the
Maſter and Fellows of Magdalen College in Cambridge. 11 Coke 66.
The fame Cafe is in 1 Roll's Rep. p. 151. See Stowel's Cafe. Plowd.
Com. 374, 376, and Croft and Howel's Cafe. Plowd. Com. 538. And
, in this Caſe of Magdalen College it was alſo ſaid by Coke, Dodde-
ridge, and Haughton, that before the Statute of 13 Eliz. cap. 10,
What Corpo- Colleges, and fuch Corporations (which have the true Right, as“ Dod
rations, sec. deridge ſaid, and now at this Day Corporations which be not within
the faid Statute of 13 Eliz.) ſhall be bound by a Fine and Non-claim,
where they have Right to enter by the Statute of 4. H. 7, of Fines,
Non-claim. altho’ the Statute doth not mention Corporations, as Haughton faid;
and by Dodderidge the Diverſity in Croft and Howel's Cafe is good Law,
that fuch Corporation which hath the true Right ſhall be bound by
Non-claim ; but otherwiſe it is of fuch Corporations which have not the
true Right, nor may have a Writ of Right, but their Conveyance
ought to be confirmed by another. Pafch. 13 Jac. B. R. Warren v.
Smith, or Magdalen College's Cafe. 1 Roll's Rep. 171. And ſo it
ſeems, that Biſhops ſhall not be bound by Fine and Non-claim, altho'
they be not within the Statute of 13 Eliz. Gouldsborough p. 171, be-
cauſe regularly their Conveyances ought to be confirmed by the Dean
and Chapter, and the Words of the Statute of Eliz. are, all Gifts,
Grants, Fines, Feoffments, &c. had, made, done oj fuffered, 02 to
be had, made, done of ſuffered of any of their poſſeflions, other than
for the Term of Chree Lives od Dne and twenty years, &c. thall be
'void. And note, That what is faid as to Maſters and Fellows of
Colleges with reſpect to 13 Eliz. in Magdalen College's Cafe, holds
good, as to all other Perfons reſtrained by the faid Statute, and it is
particularly ſaid in the fame Cafe as reported by Rolle, that Non-
claim upon a Fine by a Parſon or Vicar doth not bind the Succeffor.
As Eccleſiaſtical Perſons are not bound, by ſuffering Fines to paſs
of their pofſeffions ; fo if, to avoid this Act, a Writ of Annuity be
- brought againſt a Parſon or Vicar who prays in Aid of the Patron and
Ordinary, and upon Default Judgment is given for the Plaintiff. This
is not within the Words of the Statute, for that it is not any of their
Poffefſions, yet it is within the Equity of it, as Haughton faid, and
Dodderidge granted, Magdalen College's Cafe. i Roll's Rep. 171, and
Equity of
ſo 'twas held. Paſch. 14 Eliz. in Elmer's Cafe, as is ſaid by Coke in
the Caſe of Eccleſiaſtical Perſons, 5 Co. Rep. 14, and alſo in the Bi-
ſhop of Salisbury's Caſe, io Co. 60, it is there held, that if a Writ of
Annuity be brought againſt a Biſhop upon 'Title of Preſcription or o-
4
therwiſe,
Not the Suc-
ceflors of a
Parfon or
Vicar.
What is
within the
the A&t.
Chap. XLII. The Complete Incumbent.
429
Leares.
(1.).
therwiſe, and Judgment be given againſt him upon Verdict or Confef- Bihops
tion, the fame is reſtrained by the Statute of 1 Eliz. becauſe that the
Biſhop is charged with the Annuity in reſpect of his Biſhoprick, and
therefore the Succeffor would be charged with the Arrearages in-
curred in the Life of the Predeceſſor, as it is agreed, 48 Ed. 3. 26,
and fo tendeth to the Diminution of the Revenues, and impoveriſhing
of the Succeſſors, George Biſhop of Chicheſter and Freeland's Cafe
i Car. Bridgman 30, and it hath been alfo held, that a Rent granted
by ſuch Corporation is againſt the Equity of the ſaid Statutes. 5 Co.
f. 15. Magdalen College's Cafe. i Roll's Rep. 171. So if a Biſhop doth
confirm an Eſtate to a Diffeifor, it is within the Statute of 1 Eliz.
Mich. 37 and 38 Eliz. Sir Edward Denny v. Eakenftal. 3 Cro. 430.
And upon the ſame Reaſon I take the Law to be, thạt Eccleſiaſtical
Perſons are not bound by any of the Statutes or Limitations, which li-
mit and appoint ſeveral Actions to be brought, and Entries to be made
within ſuch a certain Time; otherwiſe that would be a Side Wind to
evade the Statutes made to prohibit their Alienations.
Though Ecclefiaftical Perfons may not alien or grant any Rent out Rules of
of their Poſſeſſions to bind their Succeffors, and their Succeſſors be not bind the Suc-
bound by Fine and Non-claim, or by Recoveries, or the Statutes of ceffors, &ca
Limitations, yet they may make Leafes to bind their Succeſſors, but
with reſpect to theſe following Rules.
Firſt, Such Leafe muſt be by Deed indented, and not by Word of
Mouth; for though the Statutes of 1 and 13 Eliz, do not appoint the li mude de
Leafe to be made by Writing, yet muſt it therein and in the other follow- dented.
ing Properties and Qualities required by Stat. 32 H.8, follow the Pattern
thereof, (concurrent Leaſes only excepted.) 1 Inft. 44. · A Deed is an
Inſtrument written in Parchment, or Paper, conſiſting of three Things,
viz. Writing, Sealing, and Delivery, and comprehending a Contract,
or Bargain between Party and Party; of which there are two Sorts,
Deeds Intended, and Deeds Poll; which Names ariſe from the Form
or Faſhion of them ; the one being cut in and out in the Top or Side
which we call indented, the other being plain, the Indenting being as
it were polled or cut off. A Deed indented, is a Deed conſiſting of
two Parts or more (for there are 'Tripartite and Quadripartite Deeds)
in which it is expreſſed, that the Parties thereto have to every Part
thereof ſet their Hands and Seals; and if it be not really indented,
though the Words of the Deed be, This Indenture, &c. yet it is not
a Deed indented; but if the Deed be indented, it Matters not whe+
ther it ſpeaks it felf to be an Indenture or not, 'tis however a Deed
indented.
Notwithſtanding this firſt Rule, a Parfon, or Vicar, may for a Sum Yet a Patron
of Money contract without Deed, that the perſon that ought to pay contract
Tithes to him may retain his Tithes; and if a Parfon doth aſſume to without
the Pariſhioner upon a valuable Conſideration that he ſhall be dif- Deed.
charged of the Tithes of his Lands, and after doth fue him in the
Ecclefiaftical Court for the Tithes; this Suit, although he doth not
thereby compel him to pay the Tithes, is a Breach of the Afumpfit.
Mich. 10 Jac. B. R. Brown V. Kinnon. i Roll's Abr. p. 430. But
ſuch Diſcharge can have no Continuance for more than one Year, for
want of a Deed; and if it be niade for more Years it is void, by Fer-
ner. Paſch. z Eliz. Woodward v. Nelſon. Owen 103. Hawks v. Bray-
field. 2 Cro. 137, and 2 Roll's Abr. 63. Trin. 30 Eliz. B. R. Wood-
coard v. Buggs. 2 Leonard 29. Dr. Langworth's Cafe. 2 Roll's Abr.
63. Paſch. 13 Car. 2. B. R. Barnard v. Ewen. i Keb. 5, and 21 Ray-
inond
430
The Clergy-Man's Law: Or, Chap. XLII.
1
How ſuch
Bilhops
mond 14. 2 Levinz. Rep. 24, that is, ſuch a Contract is not good to
Leales.
have Continuance as a Leaſe for more than one Year, yet being made
to him who ought to pay the Tithes is good as a Contract to diſcharge
him from the Penalty of the Statute 2 E. 6, for not ſetting forth his
Tithes as is adjudged in the ſaid Caſe of Bernard v. Evans, and it
hath alſo becn held upon Motion to arreſt Judgment in an Action of
the Cafe grounded on a ſpecial Promiſe to have Tithes for Six Years
,
that although ſuch an Agreement be not as a Leaſe, nor doth any In-
tereſt paſs thereby in the Tithes, yet ’tis good to ground an Agumpfit
upon, and Judgment was given for the Plaintiff accordingly. Trin.
35 Car. 2. B. Ř. Eaton v. Sherwin. And if this Contract be made
before the Occupier of Land hath fowed his Corn, ſuch Contract for
a Year is not good; by Coke, Forſter v. Warberton ; where alſo the
former Opinions and Reſolutions are allowed, viz. that a Leaſe for
One Year may be of Tithes without Deed, but not for more. Trin.
21 Jac. B. R. Hughes p. 354. It is alſo ſaid to have been ruled in
the Common Pleas, between Weſtled and Pepper, that a Concordatum
O Agreatum between the Parfon and Pariſhioner, that for Twenty
Shillings Rent he ſhall have his Tithes for 'Twenty Years, if the Par-
ſon ſo long live, was void. Bugg and Nelſon v. Howre. Trin. 32 El.
B. R. 3 Cro. 188, 249. And by all the Juſtices it was agreed, that
Parol Agree- ſuch a Contract or Agreement without Deed for the Tithes of any
to be made. Other than of the Party himſelf, who was Party to the Agreement,
was void; and that ſuch a Parol Agreement ought to be made by
Way of retaining or keeping them back only. Mich. 2 Car. B. R.
Bellamy v. Bulford. Godbolt 374. Mich. 8 Jac. B. R. Brownlow and
Gouldsborough. 2 Part. p. 11, 17. For if they be granted to a Stran-.
ger but for one Year without Deed, 'tis void. Mich. B. R. Hawkes v.
Brayfield, per Cririam. 2 Roll's Abr. 63. Trin. 20 Car. 2. B. R. An-
gel v. Rolf. 2 Keb. 376. Yet if the Stranger ſue for them in the Spi-
ritual Court, and the Defendant plead that all the Right to the
'Tithes which that Stranger hath is a Grant of them without Deed,
and the Spiritual Court will not allow this Plea, no Prohibition lies ;
becauſe the Defendant ought to ſet forth his Tithes, not regarding
who hath 'Title to them, and if he doth ſo, he hath diſcharged him-
ſelf, but not otherwiſe. Trin. 26 Eliz. B. R. Withy v. Saunders. I
Leon. 23. And by Jones Juſtice, it is ſaid, that though they may
not be denifed to a Stranger without Deed, yet that they paſs to hiin
by Way of Contract. Hill. 2 Car. Bulthorp v. Bellamy. Bendloe 202.
And it is ſuch an Agreement upon which an Action of the Caſe may
be grounded, though it do not actually transfer the Intereſt of the
Tithes. i Keb. 21.
A Difference I find to be made between Church-Men, as Parſons,
Impropria-
tor may not Vicars, &c. and an Impropriator; the firſt may, as hath been ſhewed,
leaſe Títhes leaſe their Tithes for One Year without Deed, yet an Impropriator
cannot, but 'tis meerly void, per Curiam. Mich. 2 Car. B. R. Rot.
179. Bellamy v. Bulthorp. N. 89, fame Cafe. Godbolt 374. And 'tis
there faid to be ſo ruled, 20 Jac. in the ſame Caſe of Bennet v.
Spell, much leſs is the Contract good without Deed, if it be made by
ſuch Perſon for more Years. Trin. 26 El. Withy v. Saunders. i Leoni
.
13. According to the Caſes mentioned, a Parfon by Parol did Icafe
his Tithe Hay to the Vicar, and the Vicar paid the Rent for the firſt
Year; but finding that the Rent was more than the Tithe was wortli
,
refuſed to hold the Bargain any longer, and being fucd in the Court
for One Year
4
of
Chap. XLII. The Complete Incumbent. .
431
Leares.
yet it
of Requeſts (which was a Court of Equity) for the Rent, did not Biſhong
plead there any Notice of his Refufal; and Sentence being given for
the Parfon, the Vicar prayed a Prohibition, and it was agreed by the
Court, that if the Lefſee had received the Profits, he was fuable in the
Court of Requeſt for the Rent; and that if he had given Notice of the
Refufal of the Bargain, he had been diſcharged of the Rent from the
Time of the Notice given, becauſe he had no Remedy for the Tithes,
for that it was a void. Contract in Law. And Dodderidge and Jones
faid, the Caſe is the ſame, if he had not given Notice. The Vicar of
Anford's Cafe, Latch. 115. Paſch. 2 Car. Harris and Dilworthy's Cafe,
Palm. 423.
Though by all theſe Caſes before mentioned it ſeems to be allowed, That yet
that a Leaſe or Agreement to retain Tithes more than for one Year retain Titles
without Deed is not good; yet on the contrary it hath alſo been ad- for ſeveral
Years is good.
judged, that a Contract for divers Years without Deed that the Owner
ſhall retain his Tithes is a good Contract. 22 H. 6. fo. 43. Mich. 3 Car.
Booth v. Frankling, Hetly 31. Mich. 14 7ac. Hawkes v. Brothwith,
Yelverton 94. Mich. 4 Jac. B. R. Tanner v. Small, Yelverton 95.
where it is ſaid to have been ſeveral Times ſo adjudged, Trin. 21
Fac. Honycomb v. Sweet 2 Cro. 668. and by Wray, Trin. 30 Eliz.
B. R. Woodward and Bugg's Caſe, 2 Leon. 29. Mich. 4 Car.
C. B. Stone v.Walſinham, Hetly 107, 122. Paſch. 5 Jac. B. R. Smalls
Cafe, Noy 121. Mich. 8 Fac. B. R. Brownlow and Gouldsborougl,
2 Part II. And it is ſaid to be the Opinion of the whole Court, that
by Way of Agreement Tithes may paſs for Years without Deed, but
not by Way of Leafe Parol, Trin. 21 Fac. B. R. Hughes 354; by
Dodderidge, Fones and Whitlock. And it was faid, that a Parſon may
leaſe, &c. his Rectory, conſiſting of Glebe and 'Tithes by Parol for
Years; for then the Tithes paſs as annexed to the Rectory. 2 Rolls Abr.
63. Mich. 2 Car. B. R. Bellamy v. Baltlırop, Latch. 173. And be-
Tithes paſs
cauſe Tithes and Offerings are incident to a Parſonage by a Leaſe of by a Leaſe of
the Parſonage, though but by Parol, they ſhall paſs, though they be a Parſonage,
Eggo though
not expreſly named. 15 H. 7. 8. Br. Incidents, &c. 7. And if a Por-
by Parol.
tion of Tithes have been for a long Time uſed with a Chapel, it ſhall
paſs by the Grant of the Chapel, and all Tithes thereunto belonging,
though otherwiſe the Name Portion of Tithes is neceſſary in Grants.
Bradford's Cafe, Clayton, fe&t. 25. However he that by ſuch Contract Contrator
may retain his Tithes, cannot leaſe or aſſign them over to another, may not
2 Roll. Abr. 63. Mich. 4. fac. B. R. Hawkes v. Brothwith, Yelver- over.
ton 94, or at moſt not without Deed. Trin. 26 Eliz. B. R. Withy
and Saunder's Cafe, i Leon. 23. Yet it is ſaid to be the Opinion of the
Court, that if one contract with the Parſon for the Diſcharge of the
Tithes of his Lands for Years, and then demiſes his Lands to another,
he ſhall not have Tithes of his Leſſee, for the Diſchage runs with the
Land; but if one takes a Leaſe of his Tithes by Deed, and makes a
Demiſe of his Land, he ſhall have Tithes of his Leſſee. Mich. 3 Car.
B. R. Booth v. Franklin, Hetly 31. So'tis held, that the Aſiignec of
a Leaſe may take the Advantage of a Contract by Parol made by the
firſt Leſſor for him and his Aſſigns. Trin. 21 fac. B. R. Honyconub v.
Sweet, 2 Cro. 668. 2 Rolls Abr. 63. But though it be admitted by
the laſt Cafe, that the Parſon's Contract to retain Tithes for Seven or Contract of
more Years be good to bind him; yet it is generally held, that if the Retainer by
Contract or Retainer for the Parſon's Life be by Parol only, that
ſuch Contract is void. Tiin. 30 Eliz. Woodward and Bagg's Cafe,
2 Leon.
leaſe them.
Parolfor Lifc
void,
-
432
The Clergy-Man's Law: Or, Chap. XLII.
Maps
Lars.
* :
Simile, and
l'rohibition.
though he
could not fire
the Parlon
upon the
Contract.
2 LC01. 29. Paſch. s Eliz. Small's Caſe, Noy 121. Mlich. 8. C. P.
Brozorilow and Gouldsborough, 2 Part. p. 17, where Coke faid, that it
was fo adjudged in B. R. in Parſon Booth's Cafe, and in C. B. in 1Vel-
low's Cafe, Trin. 32 Eliz. B. R. Bagg and Nelſon v. Il’oodward, 3 Cro.
188, and Paſch. 4 7ac. B. R. Harukes and Brayfield's Caſc, 2 Cro.
137, and Yelverton 94. So if a Parfon doth let his Glebe for ſo many
Years as he ſhall be Parſon of the Chuch, this is void for the Incer-
tainty. i Inft. 45. Alſo where a Parfon did aſſume that the Owner of
the Land and his Aſſigns ſhould be diſcharged of the Tithes thereof
during the Parſon's Life, and the Allignec of the Land being ſued in
the Spiritual Court for the Tithes, and a Prohibition granted, it was
rcfolved that a Conſultation ſhould be awarded. Aldriſh v. Ray, Pal-
mer 36, and 'twas faid 31 El. that it was ſo adjudged in Woodward's Caſc.
When a Parfon did contract by Parol only with A. his Executors
that Allignce and Aſſigns, that for Ten Shillings yearly to be paid, he, his Execu-
might have a
tors and Aſſigns, ſhould be quit from the Payment of Tithes of certain
Lands during the Parſon's Life, the Executor demiſes the Land at Will
to one whom the Parfon ſued in the Spiritual Court. And by Lea,
Dodderidge and Houghton, a Prohibition lies, becauſe the Parſon hath
Remedy againſt the Executors upon the Compoſition by Action upon
the Caſe; and Dodderidge ſaid, that during the Life of the Parſon the
Contract is on Foot, but that the Aſſignee could not fue the Parfon upon
this Contract, yet may have a Prohibition to ſtop him in the Spiritual
Court, and ſo drive him to ſue the Executor at the Common Law for
his Ten Shillings upon the Contract, for that he hath no Remedy a-
gainſt the Tenant at Will; but the Executor hath his Remedy againſt
the 'Tenant at Will. Trin. 21 Jac. B. R. Snell and Bennet's Cafe,
Palmer 377. A Prohibition was prayed to a Suit for Tithes, ſugge-
ſting a Parol Agreement to retain ; the Court inclined to grant it, but
being an unſettled Point, it was adjourned: But reſolved, that in an
Action brought upon the Statute of 2 E. 6. C. 13, to recover the tre-
ble Valuc, and Nil debet pleaded, ſuch an Agreement is good Evidence
to excuſe the Defendant from the Penalties of Statute, and is puch an
Agreement on which an Action of the Caſe may be grounded, though
it do not transfer the Intereſt of the Tithes; alſo if Execution of ſuch an
Agreement by ſeveral Years be ſuggeſted, a Prohibition ought to be.
Paſch. 13 Car. 2. C. B. Barnard v. Ewen, 1 Keb. 21. Raymond 14.
Paſch. 24 Car. 2. Knight & aſ v. Peeps, 3 Keble 24. But I am in-
formed, that the conſtant Practice of Courts of Weſtminſter at this Day
is not to grant Prohibitions upon the Suggeſtion of ſuch an Agreement,
but to leave it to the Spiritual Court to determine; and if the Party
think himſelf there grieved, he may appeal. And the Law is holden,
as I take it, according to the Cafes firſt cited, viz. that a Parol Agree-
ment to retain Tithes for more Years than one is void, and not only
for all the Years after the firſt, but in the whole; for the Contract bé-
ing entire muſt be void in all, or good in all, and ſhall not be made
good and void by Parcels. But however, theſe Doubts concerning
Leaſes by Parol, and their Continuance, ſeem to be much taken away
by Act of Parliament; for it is enacted, That from and after the four
and twentieth Day of June, which thall be in the year of our Lold
by Stat. 29 Dne Thouſand fir hundeed ſeventy and ſeven, all Leales, Eſtates, Ini.
Corr. 2. c. 3. tereſts of freehold, op Terms of Pears, ou any uncertain Intereſt of,
in, to, 02 out of any Peltuages, Danois, Lands, Tenements oz
Direditaments made 02 created by Livery and Seilin only, oz by Parol,
1
What thic
conſtant Pra-
Etice is.
There Doubts
taken away
2
and
Chap. XLII.
433
The Complete Incumbent.
Leares.
(2.)
and not put in Writing; and ügned by the parties co making aż cre: Bilhops
ating the ſame, by their agents thereunto lawfully authorized by quri.
ting, fhall have the force and Effea of Leares, 02 Efates at will
only, and thall not either in Law of Equity be deemed oị taken to have
any other or greater force o? Effeã ; any Conlideration for making
any ſuch Varol Leales 02 Eſtates, 02 any former Law ož Ulage to
the contrary notwithtanding.
Ercept nevertheleſs all Leaſes not erceeding the Term of Three
Pears from the making thereof, whereupon the Rent reſerved to the
Landlozd, during ſuch Térm, fhall amount unto Two Third Parts at
the leaſt of the full improved Ualue of the Thing demiled, Stat.
29Car. 2. c. 3. Entituled, An Act for Prevention of Frauds and Perjuries.
Secondly, Leaſes made by Eccleſiaſtical Perſons to bind their Suc-
ceſſor muſt be made to begin from the making, or Day of the making How Leaſes
thereof, for ſo we find the Statutes are ſeverally penned; but the to bind Suc-
Exceptions of the Statutes of 1 Ebiz. & 13. Eliz. do differ from tocommence
the Statute of 32 H. 8. in that the Leaſes for Years to be made,
according to the Exceptions of the Statutes 1 a 13 Eliz. muſt begin
from the making, and not from the Day of the making, but by Force
of Stat. 32 H. 8. from the Day of the making. 1 Inft. fo. 45.
For the better underſtanding whereof, theſe Things are to be known When from
touching Commencement of Leaſes; 'That if the Habendum be for the Delivery
One and twenty Years without mentioning when it ſhall begin, it ſhall
begin from the Delivery; fo where the Habendum is for One and
twenty Years from the making, or from henceforth, which is as much
as to ſay, from the making, for the Delivery is the making. And in
thefe Caſes the Day of the Delivery ſhall be taken incluſive, ſo that if a
Leaſe be delivered the 20th of June, that ſhall be taken for One Day,
and the Leaſe ſhall end upon the 19th of June; and though the Leaſe
was deliverd at Four of the Clock or after in the ſaid zoth Day, yet
ſhall that be accounted a whole Day, for the Law in this Computa-
tion rejects all Fractions or Diviſions of a Day for the Incertainty. So
when a Leaſe in Reverſion was made to commence ad Feſtum An-
nunciationis after the former Leafe ſhould be determined, it was ob-
jected, that it ought to be a Feſto Annunciationis, yet the Court
held it to be all one, for that there ſhall be no Fraction of a Day,
Trin. 14 Car. B.R. Lloyd v. Gregory, i Cro. 502. But if the Ha-
bendum be for One and twenty Years & Die Confectionis, or from the A Die confe-
Date, or a Die Datus, then it ſhall not begin till the next Day after tionis or Die
the Day of Delivery in the firſt Caſe, and the next after the Day that Datus are ex-
it bears Date in the other Cafe; ſo that the Day of the Making, and
the Day of the Date in the faid Caſe ſhall be taken excluſive, and not
Part of the Term; ſo that if the Deed be delivered upon the 20th
of June, or bear Date the 20th of June, the Term ſhall not be ended
till the 20th of June. 1 Inft. 46. b.
When a Leaſe by Indenture was made by a Parſon of the Tithes of If a Leaſe
200 Acres of Land, to the Owner of the Land of which he, his Wifc,
and his Heirs, were feiſed, Habenduin froril Michaelmas next follow- commence
ing, to him and his Heirs during the Life of the Parſon; the Queſtion from a Day
was, Whether the Leaſe was void, becauſe it was to commence from a
Day to come, and was for Lives? And by Flemming, Fenner and
Williams, the Leaſe was void; for although Tithes be fpiritual, and
be not extinct in the Land, yet in the Conveyance of them they ought
to follow thc Nature of the Land, and of other Hereditaments which
XXX
bc
for Life of
Tithes may
to come.
E
434
The Clergy-Man's Law: Or, Chap. XLII,
to what
Houſes the
inencement
holds not.
Biſhops be in Ele, as 8 H. 7. 3, is, and cannot be granted for Life, to com-
Leales.
mence from a Day to come, and as 21 H. 6. 46; Tithes be always in
Elle : But Yelverton and Croke contra; for the Leaſe (faid they) be-
ing made to the Owner of the Land, doth not enure by Way of
Intereſt
, but by Way of Diſchargé and Retainer, and a Diſcharge
may well commence from a Day to come. But by Flemming and
Williams, as the Leaſe is pleaded, it cannot be taken to enure by Way
of Diſcharges for the Plaintiff pleaded, by Force of which the owner of
the Land was feiſed of the Tithes to him and his Heirs for the Life of
the Parfon, ſo that the Plaintiff having pleaded it by Way of Intereſt,
they as Judges cannot conſtrue it otherwiſe. And by Flemming this
Leaſe cannot enure by way of Diſcharge, for there be not any ſuch
Words in the Leaſe; which proves that it was intended by the Parties
to operate but by way of Intereſt, and this was more beneficial to the
Leffee, for if it ſhall enure by Way of Diſcharge only, this is ſuch a
Privilege annexed to the Land which cannot be granted over. And
this appears was the Intention of the Parties in this Caſe; for the Leſſee
being dead, his Wife had 200 Acres of Land out of which the Tithes
iſſued by Way of Jointure, but his Son took upon him to be Owner of
the Tithes, which could not be, if the firſt Leaſe had enured by Way
of Diſcharge. And Yelverton inclined much to this, that the Pleading
of the Leaſe, and of the Seiſin, by Force of the Leaſe, was not good.
Trin. 6 Jac. B. B. Edmonds v. Booth, Yelverton 131.
The Rule, That a Leaſe muſt begin from the making, or Day of
the making thereof, doth not hold as to Leafes for Years of Houſes
Rule ofCom- which by the Statute of 14 Eliz. are permitted to be letten for forty
Years; for though by the Statute of 13 Eliz. Leaſes muſt be made
accoring to this Rule, yet 14 Eliz. as to Houſes there ſpoken of, is a
new Law, and Leaſes thereof made for a Time to come are good
thereby. Hill. 35 Eliz. Thompſon v. Strafford, Popham 8.
Note, That a Leaſe for Lives being avoided at Common Law, for that
it was to commence from a Time tocome, an Injunction was granted out
of Chancery to continue Poſſeſſion. 23 Eliz. Bury v. Coni sby, Tothil 180.
(3.)
A third Rule to be obſerved is, That if there be an old Leaſe in
That the old Being, it muſt be furrendred, or expired, or ended, within a certain
Time after the making of a new Lcaſe, according as the Caſe ſhall
dred, c. be; therefore if any Biſhop, Archdeacon, or other fole Corporation,
(except Parſons and Vicars, who are excepted out of the Statute of 32
H. 8.) do make their Leaſes according to the Liberty given them by
the faid Statute, viz. for One and twenty Years or Three Lives, with-
out any Confirmation of the Dean and Chapter, and an old Leafe be
in Being, it muſt be ſurrendred, expired, or ended, within a Year after
the making of the new Leaſe.
But to begin with the Biſhop, If he hath made a new Leaſe of Lands
for One and twety Years, and after, viz. when Four Years of the ſaid
makes the Bi- Term are to come, doth let the ſame Lands to another Perſon for One
hop's Leale and Twenty Years, and his latter Leaſe be confirmed by the Dean and
good.
Chapter, the Confirmation makes it a good Leaſe, although the old
Leafe was not to end within a Year of the making of the new one,
28 Eliz. C. B. Grindal Biſhop of York's Cafe, 4 Leonard 78. For
the Statute of 32 H. 8, which ſet this Rule, that the old Leafe muſt
be expired, ſurrendred, or ended, within One Year after the making of
the new Leaſe, to make the new Leaſe good, being a Statute niade
meerly to enable the Perſons aforeſaid, who before without Confirma-
tion could not grant or leaſe any Thing to bind their Succeſſors, doth
enable
Leaſe muſt
be ſurren-
Where Con
firmation
Chap. XLII. The Complete Incumbent.
435
enable them to.grant Leaſes for:One and twenty Years or Three Lives, silhops .
Lars.
under the Qualifications therein mentioned without the Confirmation
of any: But we muſt fo underſtand it, that the ſaid Qualifications, of That the
which this is one, are not by Vertue of this Statute of Neceſſity to be Qualifica-
obſerved in all. Leaſes; viz. when the Liberty given by the Statųte is not be obſer-
not uſed, but that the Leaſe is confirmed according to the Common ved when the
Law; for after the making of the Statute of 32 H. 8, Biſhops and o-
Libertygiven
by the Sta.
thers mentioned therein, by Confirmation might have let their Lands tute is not
for a Thoufand Years, and have made concurrent Leafęs at their Plca- uſed.
fure, until, as touching Biſhops, the Statute of 1 Elig. was made as a
reſtraining Statute, which being the fole Statute that reſtrained their
Power, (for Biſhops are not in the Statute of 14. gr 18 Eliz. as hạth
been ſhewed) if the latter Leafe before mentioned was yoid, as being
Four Years before the Expiration of the former, it muſt be made void
by this Statuto, in reſpect of the Letter or. Intent thereof, and 'tis not
void by the Letter, for the Words of the Statute are not that the Leafe
ought to be for One and twenty Years ſimply, without ſaying morez
but for One and twenty Years from the Time as ſuch Leafe, Grant of
Aſſurance ſhall begin ; and this is a Lcaſe for Twenty-one Years from
fuch Time, for it is not all one in common Senſe, for a Man to ſay
that he hath a Leafe for Twenty-one Years, and to ſay that he hath
a Leafe for Twenty-one Years from ſuch a Day, which is, before the
making of the Leaſe, no more than a Leaſe
. abſolute, and a Leaſe up-
on Condition ſhall be intended to be the fame: Leaſe. 14 H. 8. 18.4
Anderfor 66. For in cafe a Leafo being made to a Perſon for Tewnty- Declaration
one Years from the Feaſt of St. Michael laft, and the Lefſee doth en- for Twenty-
ter, and is outed, and brings his Ejeftione firma, he ought to declare one Years
upon the Leaſe as it is, viz. for Twenty-one Years from fuch a Day, from, Es
and not upon a Leaſe for Twenty-one Years without ſaying more, for
then he hath failed of his Purpoſe, for the Defendant may plead not
Guilty, and he ſhall be found not. Guilty; and as ſuch concurrent Leaſe
is not void by the Letter of the ſaid Statute, fo neither by the Intent of
it, becauſe it is not prejudicial to himſelf or Suceæſfor, who may make
the like Leafe: for there is not a longer Eſtate granted againſt the Suca
ceſſor than for 'I wenty-one Years or 'Three Livęs, according to the Sta.
tute ; nor is the Lellor, or his Succeſſor, by ſuch concurrent Leaſe
barrd of their annual ancient Rent; and though they have by this
Means but one Rent in Intereſt, yet they have another for the Four
Years by Eltoppel. Pox and Collier's Café, i Anderſon ios. Moor 1997
Hill: 22. Jac. Esans and Aſcough's Cafe, Latch. 242. Pelmer 466, Biſhops Lea-
So that if a Biſhop doth make a Leafe for Years, which is confrmed ſesfor Twen-
by the Dean and Chapter, and after dath make a Leaſe of the ſame to commence
Land to another for Twenty-one Years, to commence after the firft after a con-
Years ſhall be determined, and after and before any Confirmation of of Twenty-
the ſecond Leafe is hade the Bifhop doth make a third Leaſe for Lives one Years.
to a third Perfon of the fame Lands, to commence immediately, and
the laft Leaſe is firkt confirmed, and then the ſecond Leaſe in Rever-
ſion is alſo confirmed; in this Cafe the fecond Leaſe is good, and the
Confirmation of it made it effettual, although the laft Lcafe was firft
cofirmed, becauſe no Intereſt is given by the Confirmation, but that is
only to make the Leale durable and effectuai. Trix. 6 Eliz. Moor 66.
Although a Leaſe for Years is in Being, and is not furrendred, or Leaſe for
ended within Four, Five, or morė Years, yet a Biſhop may make an- Years, but
other Leaſe for Years to commence after the firſt Term thall be ex- pe econtra.
XXX 2
pired,
firmed Leaſe
Where a
436
The Clergy-Man's Law: Or, Chap. XLII.
T
I.caſe for Life in Being, and the Biſhop doth make a Lcaſe for Years,
Biſhops pired, if ſuch a Leaſe be confirmed, but not for Lives, to bind the Suc-
Leales.
ceſſor, though it be confirmed by the Dean and Chapter ; ſo if there be a
the Leafc for Years may be avoided; by Whitlock, Hill. 22 Jac. Evan:
and Kifin v. Aſcuith, Palmer 468. Firſt, Becauſe the Statute of
Eliz. is in the Disjunctive for Twenty-one Years or Three Lives, and
therefore the Biſhop cannot make both. Secondly, Becauſe the Rent
reſerved upon ſuch Leafe for Years is not payable within the Meaning
of the ſaid Act, viz. annually; for that if the Rent be not paid, nei
ther the Leflor, nor his Succeſſor, can diſtrain, or have their Action of
Debt for it, during the Continuance of the Leaſe for Lives. And though
ex vi terinini the Rent is payable, becauſe that after the Leaſe for
Lives determined the Leffor ſhall diſtrain for all the Arrearages of Rent
referved upon the Leafc for Years, yet it is not payable fo as was in-
tended by the Statute, for the Statute was made to maintain Hoſpita-
lity, and to avoid Dilapidations, and that cannot be by Poſſibilities
without a continual Revenue Yearly payable, and not in Expectancy,
or in future Poſſibilities; and in this Cafe the Biſhop ſhall have no
more but a Poſſibility. Trin. 30 Eliz. B. R. Elmer's Cafe, 5 Co. 2.
Mich. 30 e 31 Eliz. Marler v. Right, i Anderſon 193, the ſame
Cafe, 3 Cro. 141, and More 253. But Coke is ſaid to have argued, that
ſuch Léaſes for Lives are good, becauſe the Biſhop hath a Poſſibility
of recovering the Rent; and Egerton Solicitor General is ſaid to allent
to this. Paſch. 29 Eliz. B. R. Bunny v. Wright and Stafford, 1 Leo-
nard 59. But the former Cafe is more to be depended upon; and it
fcems alſo in this Cafe to be held, that if there be a Leafo for Years
,
that ſhall be ſurrendred, expired, or ended within One Year after a
Leaſe for Lives is made, that the Leaſe for Lives is good without Con-
firmation by the Statute of 32 H. 8. Quære. .
This Rule, that if there be an old Leaſe in Being, it muſt be fur-
rendred, expired, or ended within a certain Time after the making of
the new Leaſe, holds good, not only when Biſhops, and other Corpo-
dred, asoc. is rations fole, mentioned in 32 H. 8, make Leaſes by Authority of that
Confirmation Statute for Twenty-one Years or Three Lives without the Affent or
or without.. Confirmation of others; but alſo when any Spiritual or Eccleſiaſtical
Corporation fole (other than Biſhops) do make Leaſes with the Affent
and Confirmation of thoſe who are by Law to confirm the fame; and
alſo when any Spiritual; Eccleſiaſtical or Collegiate Corporation ag-
gregate make Leaſes of their Poſſeſſions, whoſe Leaſes were never to
be confirmed by any; for though by the Statute of 13 Eliz. theſe
were not reſtrained from making concurrent Leaſes, no more than Bi-
ſhops were by i Eliz. yet by 18 Eliz. they are reſtrained, though
Biſhops are not reſtrained from making any Leaſe of any of their Lands,
&c. whereof any former Leaſe is in Being, not to be expired, ſurrendred or
ended within Three Years next after the making of any ſuch new Leafe.
And it is ſaid by Coke Juſtice, that if there be Two Years in Being of a for-
mer Leaſe, and a Leaſe for Lives is made, this Leafe for Lives is void by
18 El. and he alſo faith, that if a Dean and Chapter, or others reſtrained
by the Statute of 18 Eliz. from making concurrent Leaſes, unleſs the
firſt ſhall be expired, ſurrendred, and ended within Three Years of the
making of any ſuch new Leaſe, do make a new Leaſe for Years of Lands
of which there was a Lcaſe in Being for Four, Five, or more Ycars
at the making thereof, that this Leaſe in Reverſion may be made good,
if the Leſſor doth, at any Time within Three Years after the
making
When this
Rule of an
old Leaſe to
be ſurren-
2
Lrafre.
or
bc.
13 El.
agree Years before
Chap. XLII. The Complete Incumbent. 437
making thereof, cauſe the former Lcafe to be ſurrendred: Paſch. 10 Biſhops
Fac. C. B. in Water's Cafe, v. Dean and Chapter of Norwich; Brown-
low and Gouldsborough; 2 part, 164.
Though Deans and Chapters, Maſters and Fellows, Maſters and of whst
Wardens of any Hoſpitals, Archdeacons, Prebendaries, Parſons, Vicars, Land con-
other like Order, having any Spiritual Living, may make concurrent current Lea-
Leaſes of their Lands, &c. generally ſpeaking, in caſe the firſt Lcafe ſes may not
ſhall be expired, ſurrendred, or ended within three Years after the
making of the new Leaſe; yet of ſuch Houſes as by 14 Eliz. they
may let for Forty Years, and of ſo much Land, as they may, and ſhall
let with them for the ſame Term, they may not make Leaſes in Re.
verſion, or concurrent Leafes ; and the Reaſon is, becauſe, that after
the Statute of 13 El. was made, the Parſons aforeſaid might or did
make concurrent Leafes at their Pleaſure, that Statute notwithſtanding,
and then for the preventing ſuch concurrent Leaſes at Pleaſure, comes
the 18 Eliz. which ſays, that the firſt Leaſe made by the Perſons afore-
the making of the new Leafe, or that the new Leaſe ſhall be void. But
then this Statute of 18 El. hath Relation only to the Statute of
which hath not any Reſpect to the Statute of 14 Eliz. by which the
faid Perſons are exprefly and abſolutely forbidden to make Leaſes in
Reverſion of ſuch Houſes and Land to them belonging as are therein
mentioned; and the Statute of 18 El. is only a diſabling Statute, and
makes no Shew of giving Power to thoſe Perſons to make Leaſes in
Reverſion, or concurrent
Leaſes of Houſes againſt the Statute of 14 El.
for then there muſt have been Words ſufficient to repeal the ſame as
to this particular, and that the Statute of 18 El, toucheth not the Statuto
of 14 El. was adjudged. Trin. 14 Jac. Crane v. Taylor, Hobart 296.
And the Dean and Chapter of Weſtminſter's Cafe, Mich. 16. Car. 2.
C. B. Carters Rep. 9. And ſo was the Opinion of the three Judges;
Trin. 25 Car. 2, in Baily and Munn's Cafe, 1 Ventris 246, and 3 Kel.
107. But the Lord Chief Juſtice Hale doubted, and inclined to be
rather of the contrary Opinion, viz. that the Statute of 18 El. doth té 18 Elis
extend to the 14th of El. Firſt, Becauſe the 14th of El. is as an Ap- extends to
pendix to the 13th of El. and doth enlarge it as to Houſes in Cities, 14 Eliz.
Market-Towns, &c. wherefore, the 18th reciting the 13th doth by con- .
ſequence recite the 14th alſo. His fecond Reaſon was, upon the Con-
nexion betwixt all the Statutes concerning Leafes of Eccleſiaſtical Per-
fons, that they may have been taken into the Conſtruction of one ano-
ther. Thirdly, From the great Romage it would make in Leafes, if
a Leaſe ſhould be void, when there was never ſo little of a former
Leaſe unexpired. Fourthly, There is no Authority to the contrary ;
Crane and Taylor's Cafe being concerning Covenants only.
And let it be noted, That though the Statute of 14. El. doth only Whether a
prohibit Leaſes in Reverſion, and doth not mention concurrent Leaſes;
yet if an Houſe be let for Forty Ycars to commence immediately, when
there is a former Leaſe in Being for Ten Years, this Leafc for Forty cond Leaſe
Years (though properly ſpeaking it be a concurrent Leaſe as it pre- to be in Rc-
ſently commences in Intereſt, yet) is in Law a Leaſe in Reverſion, and
ſo within the Words of the Statute, and therefore void, as was adjudg.
ed. Pafch. 39 El. Hunt v. Singleton, 3 Cro. 564. And Dean and
Chapter of Weſtminſter's Cafe, Carters Rep. 11 14, it is agreed by
Bridgmar Chief Juſtice and Terrill, that whatſoever is not a Leafe in :
Poſſeſſion within the Statute 18 El. is a Leaſe in Reverſion, and that
all
$
1
former Leaſe
in Being,
makes a re-
.
1
138
The Clergy-Man's Law: Or, Chap. XLII.
SO
Biſhops
Leares.
all Leaſes where there is a particular Eſtate out, are Leaſes in Rever-
fion; and in Baily and Munn's Cafe, 1 Ventris 246. Twiſden Jufice
is of the ſame Opinion, to which the other two Juſtices inclined. But
by the Opinion of Hale Chief Juſtice in the fame Cafe, as reported
2 Levinz 62, a former Leaſe in Being makes not the ſecond Leafe to
be a Leafe in Reverſion ; but a concurrent Leaſe, if the fecond Leafe
be to begin preſently, to which by this Report of the Caſe the other
Judges ſaid nothing, only Twiſden doubted. And on the other Hand,
if an Houſe, that by 14 El. may be let for Forty Years, be let but
for Twenty Years, and Ten Years before the Expiration thereof ano-
ther Leaſe is made for Twenty Years, not to commence preſently but
after the Expiration of the former Leaſe, this is properly a Leaſe in
Reverſion, and yet ſaid to be good, and to ſtand well with the Sta-
tute of 14 El. for that thefe Contracts do not intermix, but the one
doth well ſtand with the other, and both Leaſes do not exceed the
Forty Years comprized in that Statute, which doth not hinder Leafes
from being made from a Day to come. Hill. 35 Eliz. Thompſon v.
Strafford. Popham 8. But this Opinion in Popham is denied to be
Law, In the Dean and Chapter of Weſtminſter's Cafe, Carter's Rep.
12, 15, and alſo in Baily and Munn's Cafe before cited. 1 Ventris
246, and 3 Keb. 187. 197.
Note alſo, That this Statute of 14 El. doth not extend to Biſhops,
ſo as either to enable them to let any Houſe for Forty Years, or to rem
ſtrain them from making Leaſes of their Houſes in Reverſion, or con-
current Leaſes for Years, nor may they hereby alien their Houſes
by way of Exchange, or for any Recompence, and the Reaſon why
they are not within this Statute, is becauſe they are not as hath been
ſhewed within the Statute of 13 El. to which this of the 14th of El
hath immediate Relation.
And note, That in all Cafes when concurrent Leafes are made,
the new Leaſe, although it may be made a die Confe&tionis, is not to
Leafes are to take Effect in Intereſt till the old Leaſe be expired, ſurrendred or end-
take Effe&ed, that is, the new Leſſee cannot enjoy the Land, &c. till ſuch Time,
in Interet for the new Leafe does commence preſently by Eftoppel only, not in
Intereſt, yet it ſeems that the Rent is due from the firſt Commence-
ment of the Leafe, ſo that the Biſhop, Go. Leſſor is entituled to two
Rents, and may bring an Action of Debt to recover the Rent referved
upon the ſecond Leaſe, during the Continuance of the former ; for
the Rent muſt be reſerved and made payable during the Term, and
not only from the Determination of the former Leaſe, elle ſuch con-
payable.
current Leaſes will be void as contrary to the Statute, and being a
Rent referved upon a Leaſe for Years, an Action of Debt or Covenant
will lie for it ; and there can be no other Remedy to recover, it during
the Continuance of the firſt Leaſe, for which Reaſon a concurrent Leale
for Lives is not good, by reaſon Debt will not lie for ſuch Rent, and
the Lellor may diſtrain for all the Artears grown due before fuch
Leffee came into Poffeffion. Note, (But that by a late Statute made
Arno 8 Anna Regine, It ſhall be lawful for any Perſon or perſons
having Rent in Arrear, or due upon any Leaſe or Demiſe for Life or
Lives, to bring an Action of Debt for ſuch Arrears of Rent in the
fame Manner as they might have done in cafe fuch Rent were due
and reſerved upon a Leaſe for Years.) Trin. 21 Eliz. Fox v. Collier.
From what
Time con-
current
How the
Rent to be
4
Moor
Chap. XLII. The Complete Incumbent.
439
***
Leares
40 Years to
done by taking of a ſecond or new Leaſe of the fame Eſtate
Moor 107. Trin. 25 Eliz. i Anderſon 65, fame Cafe. Paſch. 9 Eliz. Biſhops
C. B. Dyer 261. Degg's Parſon's Counſellor 116. So if a Perſon hath
a Leaſe for Years in Being, and afterwards doth take another Leaſe
for Years to himfclf of the fame Land, &c. the latter Leafe is not a
concurrent Leafe, or a Leaſe in Reverſion, and therefore ſuch fecond
Leaſe of the ſame Land made by a Biſhop, or other Perſon enabled
by 32 H. 8, to make Leaſes for 'Twenty-one Years or Three Lives, is
a good Leaſe without Confirmation, although it be made divers Years
before the former Leaſe would have expired. So if any Perſon ena-
bled by 14 Eliz. to make Leaſes of Houſes for Forty Years, doth firſt Upon 14 El
.
make a Leafe for Twenty Years, and Seven Years after doth make of Leafes for
another Leaſe to the fame Perſon of the Tame Houſe for Twenty the fame
Years; to commence from a Day to come, the ſecond Leaſe cannot Perſon.
be ſaid to be a concurrent Leaſe, or a Leaſe in Reverſion, becauſe by
the Tenant's Acceptance of the faid Leaſe, the firſt Leafe is ipſo fatto Firft Leaſe
ſurrendred; determined and gone, for the laſt Contract with the ſame determined.
Perſon doth diſſolve the firſt, when the one and the other cannot ſtand
together, as they cannot here, becauſe the one doth intermix with the
other; nor doth the firſt Leaſe remain good to the Day to come, on
which the ſecond Leaſe is to commence, but by the Leſſee's Accept-
ance of his new Leafe, doth immediately become void in the whole;
for the firſt Contract which was intire cannot be diſſolved in Part, as
to that which the Party hath, (by Popham, Clinch and Gawdy) to
which the Juſtices of the Common Bench agreed, and fo was the Ópi-
nion of the Common Bench about i Eliz. in the Caſe of the Abbey
of Barking; faith Popham. Hill. 35 Eliz. Thompſon v. Troford. Pop-
haniz 8. And from hence we may note, that Leaſes may be furren-
dred by two Means; that is, not only by Deed, which is when an E-
İtate, whether for Years or Lives, is yielded up by expreſs Words into
the Poſſeſſion of him who hath the next or immediate Remainder;
or Reverſion thereof, and is called a Surrender in Deed, but alſo by Surrender in
Operation of Law, and this is called a Surrender in Law; which is Deed, and in
there-
fore if a Leſſee for Twenty Years preſently take a Leafe for Ten
Years; this is in Law a Surrender of the whole Term of Twenty
Years; and the fame Law it is, though the ſecond Leaſe be made to
begin Ten Years after, becauſe by his Acceptance of ſuch ſecond
Leaſe to begin at a Day to come within his former Term, he doth af-
firm that the Leſſor hath Power to make ſuch fecond Leafe, which he
cannot have without Surrender of the former; and, as hath been
faid, there ſhall not be any Fraction of the Eſtate, ſo as to make the
former Leaſe good for the firſt Ten Years, and ſurrendred for the
Reſidue. 5 Co: 11. b. Ives's Caſe. Pafch. 40 Eliz. Maton v. Hutchins.
2 Roll's Ábr. 496. Yea the Acceptance of a voidable Leaſe is a good
Surrender of a good and ſure Leaſe. Dyer 140: (43.) but if the new
Leaſe accepted of be meerly void; the Acceptance thereof makes no
Surrender of a former Leaſe. Mich. 13 Car. B. R. Flood v. Gregory:
Per Curian: 2 Roll's Abr. 495.
But what hath been thus faid of Surrenders, is not to be extended Bue Infants
generally to all Perſons, for Infants having a future Intereſt in a Leafe; cannot ſur-
tender by
cannot ſurrender it by Deed, but fuch Surrender is void ; ſo if an In: Deed.
fant that hath a Leafé that is to take Effect at a Day to come, ſhould
before ſuch Day accept a new Leaſe for the fame Term upori the
fame Rent and Covenants; this Acceptance of a new Leaſe by the
Infant
Law.
440 The Clergy-Man's Law : Or, Chap. XLII.
Bithops
Leales.
ز
no Benefit.
abfolutely ſurrender it, and then the Dean and Chapter will not per-
Infant is void, and no Surrender in Law of the former Leaſe, becauſe
it is without Increaſe of his Term, or Decreaſe of his Rent; and
Nor Accep-
where there is no apparent Benefit, or Semblance of a Benefit to the Infant,
tance where his Acts are void ; and though the Cafe be, that the Infant come of
Age before the Leaſe can take Effect, and then the former Leafe being
expired, enters and claims by the ſecond Leaſe, and pays the Rent
for divers Years, which is accepted, yet the ſecond Leaſe is void, and
the firſt not ſurrendred; by Reaſon of the Infancy. Trin. 14 Car.
B. R. Lloyd v. Gregory: i Cro. 502, fame Cafe. Fones 405. If a
Leaſe be ſurrendred by Deed in order to the having of a new Leaſe,
or that the Eftate may be granted to another, the Surrender ought to
be abſolute, not conditional, for a conditional Surrender is not fuffi-
cient within 32 H. 8, and the other Statutes; for the Mind of the
Makers of theſe Laws was, that the Surrender ſhould be effectual, not
illuſory, which might be avoided. Trin. 30 Eliz. C. B. Elmer's Cafe.
5 Co. 11. And ſuch an abſolute Surrender may be ſafely made unto
á Corporation aggregate upon their Promiſe to make a new Leaſe; for
though no Action at Law can be brought againſt ſuch a Corporate
Body grounded barely upon a Promiſe, as in ſuch Cafe it might be
againſt any ſingle Perſon ; yet the Court of Chancery will compel to
make ſuch new Leaſe; as for Inſtance, a Dean and Chapter hath
made a Leaſe to one, who upon their Promiſe of a new Leaſe doth
not bound
without
Deed.
Sect. 2.
form their Promiſe, but lets the Eſtate to another Perſon, although in
this Cafe no Action at the Common Law doth lie againſt the Dean and
Corporation Chapter upon the Breach of this their Promiſe as Coke faid; for that a
Corporation cannot be bound without Deed, yet the Party who ſur-
rendred may well fue in a Court of Equity for a ſpecifick Performance
of ſuch their Promife, to compel them to make the new Leaſe, and
as is ſaid, may bring his Suit againſt any particular Perſon of the
Corporation, for the Corporation it felf cannot be ſo ſued; and in this
Café, if their ſecond Leſfee be one of their Body, yet he may be ſo
ſued, altho' he was not one of them at the Time of the Promiſe made,
becauſe the Corporation never dies, and this new Member having the
Leaſe is the Cauſe of the Grief. Mich. 12 Jac. B. R. Sir G. Frevil
v. Ewebank. 1 Roll's Rep. 82.
And here let it be noted, that it hath been enacted, by Stat. 29
29 Car. 2.C. 3
Car. 2. C. 3. That no Leales, Eſtates 02 Intereſts either of freehold
Surrender by oz Term of Years, og any uncertain Intereſt not being Copyhold op
in Writing, Cuſtomary Intereſt, of, in, to, o out of any petſuages, Manojs,
Lands, Tenements or yereditaments, thall at any Time after the
ſaid Four and twentieth Day of June be alligned, granted or fur:
rendied, unleſs it be by Deed, or Note in Writing ligned by the
Party lo alugning, granting of Currending the ſame, or their agents
thereunto lawfully authorized by Writing, 02 by act and Dperation of
Law. See the ſaid Stat. 29 Car. 2. Entituled, Ani Axt for Preven-
tion of Frauds and Perjuries.
(4)
A fourth Rule to be obſerved for the making of theſe Leaſes good
in Law, is, that they do not exceed Three Lives, or Twenty-one
Three Lives, Years, from the making thereof; therefore if a Leaſe be made by a
or 21 Years, Biſhop for Four Lives, and one of them doth die in the Life of the
ſame Biſhop, ſo that when the Biſhop dies there is but Three Lives in
Being, yet the Leaſe is void againſt the Succeffor ; for being void
by i El. at the Time when it was made, no ſucceeding Accident can
Co
Leaſes not
&c.
3
make
Chap. XLII. The Complete Incumbent.
441.
!
Leales.
yet
&c.
make it good. Trin. 11 Jac. the Biſhop of Salisbury's Cafe. 10 Co. 62. Bilfons
Or if new Leaſes be made for 'Three Lives, thus, To one for Life, the RC-
mainder to a ſecond for Life, Remainder to a third for Life; this Leaſe is
void by the Statutes. Mich. 3 Car. G. B. Owen v. Tho. ap Reeves. i Cro.
95. Dorothy Oweri's Cafe. v. Owen Price. Trin. 3 Car. C. B. Hetley 2 2.
So if an Archdeacon doth make a Leaſe for Three Lives according to
the Statutes, and the Leflees do make a Leaſe for an Hundred Years,
which is confirmed by the Archdeacon, Biſhop, Dean, and Chapter,
ſuch Leaſe ſhall not bind the Succeſſor, for if that ſuch Convey-
ances ſhould not be conſtrued to be againſt the Statutes, the Statutes
would be of no Effect, and the good Intent and Purview thereof
would eaſily be defeated and defrauded; fo in like Manner it is ſaid
to have been adjudged, that if a Biſhop makes a Leaſe for Three Lives,
reſerving the ancient Rent, and then he makes a Leafe for an Hun-
dred Years, if 'Three Men ſo long live, which is confirmed by the Bi-
ſhop and Chapter, the Succeſſor may avoid this Leafe. The Biſhop of
Hereford and Stacy's Caſe, vouched in the Biſhop of Chicheſter and
Freeland's Cafe. Paſch. i Car. Ley 74. So if a Leaſe be made for For Ninety-
Ninety-nine Years determinable upon 'Three Lives, it is ſaid that this nine years,
Lcafe is not good within any of the Statutes. 8 Co. f. 70. But in
26 Car. 2. B. Ř. Threadneedle and Lineham's Cafe. 3 Keb. 595, there
it was ſaid by the Court, that they would not diſpute, whether a
Leaſe made by a Biſhop for Ninety-nine Years determinable on Three
Lives was good or not (which doth imply that the Law is not ſettled
as to ſuch a Leafe.) But if a Leaſe be made to A. for the Life of
B. C. and D. it is a good Leaſe ; and it is held, that a Leafe to one
for the Lives of Three others, and a Leaſe to Three for their Three
Lives, is all one within the Intent of the Statute. Trin. 3 Jac. B. R..
Baugh v. Haynes. 2 Cro. 76. And a Leafe being made for Forty
Years by the Maſter and Brethren of an Hoſpital was allowed good
in Chancery. Tothil p. 140. tit. Leaſe. But Quære, Whether the
Leaſe was for Houſes or Land, and if for Lands, upon what Reaſon
it was made good
And note, That though by the Words of the Statutes, all Leafes Leaſe for
let, other than for Twenty one years of Three Lives, from the mae fewer Years
king, fhall be void ; yet à Leaſe for fewer Years, or Lives, is good,
or Lives
good.
for that it was the only Intent of the Statute to reſtrain Church-Men
for making Leaſes for longer Terms, and not from making them for
fewer Years or Lives. Mich. 32 and 33 Eliz. C. B. Carter and Chay.
cole's Cafe. i Leonard 306. If a Leaſe be made to one for Three
Years, and ſo from Three Years to 'Three Years, and fo from Three
Years to 'Three Years during the Leſſor's Life, this is a good Leafe for
'Twelve Years. Per Cur. Mich. 13 Jac. Wrathbone v. Newberry. 3 11 Years. .
Bulſt. 158. See 28 H. 8. Dyer f. 24, and Ploud. f. 273. Or if the
Leaſe be for Three Years, and ſo from Three Years to Three Years
ſo long as he ſhall be Parfon, this is a good Leafe for fix Years, and
for the Reſidue uncertain, and but an Eſtate at will. i Inft. 45. b.
But if the Leaſe be for Three Years, and from Three Years to Three
Years, till Nine Years be expired, this is a Leafe for Nine Years.
Paſch. i 7ac. C. B. Wilcox's Cafe. i Roll's Abr. 850. And if a Leaſe
be made for Three Years, and after for Three Years, and ſo from
Three Years to Three Years until Ten Years be expired, it is a Leafc
but for Nine Years, and the odd Year ſhall be rejected and not ac- :
counted, becauſe it cannot happen to be determined by 'Three Years,
the
Yуу
442
The Clergy-Man's Law: Or, Chap XLII.
12 Years.
Bilhops the ſame if it had been for Twenty Years, &c. the odd Ycars ſhall be
Leaſes.
rejected. Noy 143. Yet it hath ſince been adjudged, that where a Leaſe
was made for 'Twenty-one Qears, and ſo from 'Twenty-one Years to
Twenty-one Years, till Ninety-nine Years was paſſed, that this was a
Leaſe for Ninety-nine Years, which was a Time certain, although the
Twenty-one Years could not determine in Ninety-nine Years, but the
odd Years ſhould be rejected. Hill
. 30 and 31 Car. 2. B. R. College
de Mancheſter v. Trafford. 2 Levinz 241. And if a Leaſe be made
for Three Years, and at the End of thoſe Three Years for other
Three Years, Et fic de 39 Annis in tres Annos during the Life of the
Leſſor, this is not a Leafe for Life, but a Leaſe for Twelve Years,
the Firſt being for Six Years. Hill. 13 Jac. B. R. Newberry and
Wrothbone. 1 Roll's Rep. 287.
Occupancy
If a Leafe had been made for the Life of one or more other Per-
general upon ſons, and the Leſſee had died Ceftuy, que vie being living, he that firſt
Life, ego co entred ſhould have held the Land during the Life of him for whoſe
Life it was taken as general Occupant; ſo if Tenant for his own
Life had granted over his Eftate to another, if the Grantee had died
before the Lefſee of whom he had the Eſtate, he that firſt enters ſhould
have had it during the Life of the firſt Lefſee. 2 Bulftrode f. 11, 12.
Blunt's Di&tionary, occupant. Or if a Tenant for another's Life
makes a Leafe for Years and dies, the Leſſee for Years being in Pof-
feffion ſhould have had the Term as Occupant. Chamberlain v. Ewre.
2 Roll's Abr. 151. But if the Leſſee for Years had made a Leafe at
Will, and after that the Leſſee for the other's Life had died, the Leffce
at Will being in Poffeffion ſhould have been the Occupant, and not the
Leſſee for Years, but he ſhould have had it in the Nature of a Rever-
fion, and ſo the Leaſe for Years not extinct. But if Tenant for ano-
ther's Life had died, not having made any Grant of his Eftate, he
that firſt enters, albeit he claimed it in the Right of another, ſhould
have been the Occupant upon the Account that he firſt entred, and
not he in whoſe Name he claimed. Mich. 10 Jac. B. R. Chamberlain
v. Ewre. 2 Roll's Abridg. 151. But at this Day in all theſe Caſes be-
Law of Ocfore-mentioned, concerning general Occupancy, the Law by Act of
cupancy
changed. Parliament is changed, and it ſhall go to the Executors or Adminiſtra-
tors of the Party fo dying that had the Eſtate thereof by Vertue of
the Grant, and ſhall be Aſſets in their Hands, that is, in caſe there be
no ſpecial Occupant thereof ; and ſpecial Occupancy is, where an E-
ſtate for Lives is made to a Man and his Heirs, in ſuch caſe the Heir
ſhall have the Eftate after the Deceaſe of the Anceſtor as ſpecial Oc-
cupant, or as a Perſon particularly deſcribed to whom the faid Eſtate
ſhall
go after the Leſſee's Death, and ſuch Leaſe ſhall be as Aſſets
by Defcent in the Hands of the Heir. Stat. 29 Car. 2. Entituled, An
Aft to prevent Frauds and Perjuries, which is as followeth : Be it
farther enađed by the authority afoulaid, Chat from hencefouth any
Efate per auter vie thall be devilable by a Will in (Uriting, figned
by the party lo devifing the ſame, of by ſome other Perſon in his
Pulence, and by big erpreſs Direğions, atteſted and ſubſcribed in the
Duelence of the Deviloz by three oj moze Wuitnelles ; and if no ſuch
Hair Deviſe thereof be made, the ſame ſhall be chargeable in the hands of
chargeable.
the Heir, if it thall come to him by Reaſon of a (pecial Occupancy,
as allets by Deſcent, as in caſe of Lands in fee-ïmple, and in cale
there be no ſpecial Occupant thereof, it thall go to the Executo2s 0?
Admic
3
Chap. XLII. The Complete Incumbent.
443
Succeſſor:
Leaſe there
adminiftratos of the Party that had the Eſtate thereof by Gertue Biraops
Leales.
of the Giant, and fhall be affets in their bands.
A fifth Rule to be obſerved in the making of theſe Lcafesz is, 6.)
that it muſt be of Lands, Tenements, or Hereditaments manurable or
of what
Things thefe
corporeal, which are neceſſary to be letten, and whereout a Rent.by Leales mult
Law may be referved, and not of Things that lie in Grant, whereout be.
a Rent cannot be referved ; therefore if a Biſhop by Deed indented
doth make a Leaſe of a Fair, Parcel of the Pofleſſions of his Biſhop-
rick with all Profits thereof for 'Three Lives, rendring the old accu-
ſtomed Rent, though this Leaſe be confirmed by the Dean and Chap-
ter, yet the Succeffor ſhall avoid it ; by i Eliz. for a Fair is but a
Franchiſe or Liberty not manurable out of which a Rent cannot be
reſerved, and for the Rent reſerved out of ſuch Fair, the Leſſor or
his Succeſſors have not any Remedy, either by Diſtreſs, or Aſſize; and
all Leaſes of ſuch Inheritances out of which the ancient and accu-
ſtomed Rent cannot be well and lawfully reſerved and made payable
to the Succeffor, during the Continuance of ſuch Leaſe for Twenty-
one Years, Gc. the Succeſſor ſhall avoid it ; for althoʻin ſuch Leafos Avoided by
the Rent reſerved may be good by way of Contract between the Leſ
for and Leſſee, yet it is not incident to the Reverſion, nor ſhall go
with it, therefore the Succeſſor ſhall not be bound by ſuch Leaſe.
Trin. 30 Eliz. B. R. Fewel's Cafe. 5 Co. 3. If a Biſhop be feiſed of
a Manor, and hath by Grant from the King primam tonfuram five Grant de prix
vefturam of certain Acres of Land belonging thereunto (but not the ma vefura.
Feeding thereof, which was to another); here the Biſhop hath not the
Soil; for although in the Caſe of a common Perfon by the Grant de
prima veftura the Soil ſhall pafs, yet not in the Caſe of the Kings but
if the Grant had been of the firſt
' Veſture to fuch a Day certain, the of.
Soil had paſſed ; and when the Biſhop hath only primam tonſuram
and not the Soil, and makes a Leaſe thercof for Three Lives rendring
Rent, this Leafe is void, as not being an Hereditament within the Sta-
tute to be leafed; but where the Grant is de veſtura, from a certain
Time to a certain Day, it is then an Hereditament that may be let-
ten, and may be fed with Cattle, and upon which the Succeſſor may
diſtrain in caſe the Rent be not paid. Paſch. 19 fac. B. R. the Biſhop
of Oxford's Cafe. Palmer 174. Upon this Account alſo it is, that if
a Biſhop be ſeized of Tithes in the Right of his Biſhoprick, and doth
by Indenture demiſe them for Three Lives rendring the ancient Rent,
this is a void Leaſe againſt the Succeſſor ; by Yelverton, Williams and
Tanfield, becauſe the Leaſe being made for Lives, and nothing de-
miſed but Tithes which lie in prender, there is not any Remedy for
the Rent, for there is not any Place wherein a Diſtreſs may be taken,
nor can any Action of Debt be brought becauſe it is a Freehold, nor
an Affize, becauſe there is not any Seiſin ; and if there was Seiſin, yet
the Aflize would fail, becauſe there is not any Land to be put in View;
but if the Leaſe had been made for Years, it had been good, becauſe
then an Action of Debt lies for the Rent, and ſo it is of all other
Things which lie in Prender or Render, where no Diſtreſs can be ta-
ken. H:11. 3 Jac. B. R. Tailentine v. Denton. 2 Cro. 111. Same Caſe.
Moor 778. Trin. 5 Jac. B. R. Rickman v. Garth. 2 Cro. 173. Hill.
19 and 20 Car. 2. Holden v. Smalbrook. Vaughan 204, the Biſhop of
Oxford's Cafe. Pafch. 19 7ac. B. R. Palmer 175, and Paſch. 15 Car.
2. Scacc. Morice v. Antrobus, Hardres Rep. 326, and Hill. 26 and 27
Car. 2. Cartwright y. Pinkney. 3 Keb. 488. Note, That it being ad-
mitted
ز
Y y y 2
444
The Clergy-Man's Law : Or, Chap. XLII.
ز
Lcaſe for
Years of
Tithes.
Grant of the
diance.
Grant of a
Biſhops mitted that a Leaſe for Years of Tithes made by a Biſhop rendring
Leafeo.
Rent is good againſt the Succeſſor, that doth admit that it is ſuch a
Bishop's Rent as ſhall go along with the Reverſion, and not as a Sum in grofs
by reaſon of the Contract only; for if ſo, it could not go to the Suc-
ceffor, for a ſucceeding Biſhop is not privy to the Contracts of his Pre-
deceſſor, but hath a Privity of Eſtate only, viz. the Reverſion, as
was argued by Saunders, to which the Court ſeemed to incline. Hill
.
22 and 23 Car. 2. Dear and Chapter of Windſor v. Gover. 2 Saun-
ders 304, (amie Cafe. 2 Keb. 737. İrin. 13 Car. 2. Tipping v. Grover. .
Raymond 18, (ame Caſe. i Keble 62.
Bishop's If a Biſhop, Gc. grant the next Avoidance of a Benefice to another,
next Avoine although the Grant be confirmed by the Dean and Chapter, yet it is
void againſt the Succeſſor by Stat. i Eliz. becauſe 'tis ſuch an Intereſt
out of which a Rent cannot be reſerved. Trin. 11 Jac. the. Biſhop of
Salisbury's Cafe. 10 Co. 6. Pafch. 32 Eliz. Sale and the Biſhop of
Coventry and Marh. i Anderſon 241. And for the fame Reaſon it
hath been held, 37 and 38 Eliz. in a Caſe betwixt the Dean and Chap-
ter of Hereford and the Biſhop of Hereford and Bullard, that a Grant
of a next Avoidance of a Benefice by a Dean and Chapter is within
the Purview of the Statute of 13 Eliz. and ſo void. 3 Cro. 440. i Mod.
Rep. 204
If a Biſhop doth create a new Office, or doth grant a new Fee, or
new Office, a Rent-Charge, &c. out of his Land, the Statute doth extend to make
Fce,orRent, them void by the Equity thereof as againſt the Succeſſor ; for if the
Biſhop might grant Rents or Fees out of the Land, at his pleafure
the Statute would be to little or no Purpoſe, for the Land by ſuch
Grants might be made of ſmall or no Value to the King and Succef-
ſor. Pafch. 32 Eliz. Sale v. the Biſhop of Coventry, and Marſh. i An-
derſon 241. Trin. 12 Jac. Humphry---v. Powel
. Brownlow and Goulds-
Aliter of an borough 1 Part. 182. Yet if an ancient Office be granted, and the
ancient Of- ancient Fee be increaſed, the Grant is notwithſtanding good for the
Office, and for ſo much of the Fee as hath been antiently granted
with the Office, and void for the reſt that is new. Mich. 8 Car. Young
v. Stowel. i Cro. 280. i Car. George Biſhop of Chicheſter v. Freeland.
Bridgman 32. Mich. 9 Jac. C. B. the Biſhop of Ely's Cafe. Brown-
low and Gouldsborough 2 Part 137. But this it ſeems is to be under-
ſtood, where the Office and ancient and new Fee are as ſeveral Grants,
and not conjoined or mixed in the ſame Sentence, or in ſeveral Sen-
tences, the one depending upon the other. But if an Office be granted
with a Fce of Five Pounds, when the ancient Fee was a leſs Sum,
becauſe it is entire in the Grant, it is void for all; by Hutton and rel-
verton. Mich. 2 Car. C. B. George Biſhop of Chicheſter v. Freeland.
i Cro. 50
So when a Biſhop having the Inheritance of the Diſpoſal
of Two Offices, as of Steward and Under-Steward, did grant both to
Two Perſons, whereof one is within Age, and after the Grant was
confirmed at his full Age in the Life of the fame Biſhop, yet the
Grant was adjudged void ; and 'twas alſo then ſaid, when Two Offices
Two Offices, are granted to one Man by one Grant, that they are void, for the
Statute hath been ſtrictly, expounded. Scambler and Wat's Cafe. 41 El
.
vouched in the Biſhop of Chicheſter and Freeland's Cafe. Ley 76, and
I Cro. 50..:
Alſo if a Dean and Chapter do grant a Rent-Charge out of their
Charge, sono con Poſſeſſions, this is reſtrained by the Equity of Stat. 13 Eliz. and yet
and
Chapter. the Rent is not any Part of their Poffertion within the Words thereof.
Elmer's
fice.
Grant of
Of a Rent-
I
Chap. XLII. The Complete Incumbent.
445
Leales.
grant
44
Elmer's Cafe. 5 Co. 2.
Or if a Biſhop being ſeized of an Rent doth Biſhops
the ſame in Fee, this Grant is void as to the Succeſſor. Paſch.
Eliz, in the Caſe of Fines. 3 Co. 85, the like may be ſaid of all
other Eccleſiaſtical Perſons that are within the ſaid Statute of 13 Eliz.
If an Annuity be granted to one for his Life pro Confilio impenfo &
impendendo, this Grant is void againſt the Succeſſor by an equitable
Conſtruction of the Statutes. Biſhop of Salisbury's Cafe. Trin. 11 Jac.
10 Co. 60. And generally all Leafes and Grants not permitted by the
Words in the Statute of 13 Eliz. Other than for the Term of 'Dne What Lcaſes
and twenty years o? Thzee Lives from the Time as any ſuch Leale generally
02 Guant ſhall be made ou granted, whereupon the accuſtomed yearly void againſt
Succeſſors.
Rent of more thall be reſerved and payable yearly during the ſaid
Term, are void againſt the Succeſſors, being reſtrained by this Statute
and the Statute of · Eliz. And for that Reaſon, if the Grant of an
Office by a Biſhop, whether it be an Office that is exerciſeable by the
Biſhop himſelf, as Chancellor, or any other Office that concerns the
Biſhoprick, as Steward, &c. cannot be made for Twenty-one Years
or Three Lives within the Exception of ı Eliz. nor by a Dean and
Chapter or other Eccleſiaſtical Corporation within 13 Eliz. But a Bi-
ſhop by 1 Eliz, or others by 13 Eliz. may grant an ancient Office
for One Life, and that upon the Account of Neceſſity, as being no
Diminution of the Revenue ; but this being a Grant at Common Law,
muſt be confirmed. But it ſeems that a Commiſſaryſhip, &c. is not
grantable for Life with Confirmation to bind the Succeſſor, for ſo it
hath been held. The Cafe was thus, The Deanery of Wolverhamp-
ton annexed to the Deanery of Windſor being a Peculiar, and having
Ordinary Juriſdiction, the Dean makes a Commiſſary, which is con- Commiſſary-
firmed by the Chapter : The Dean dies; the Queſtion was, If this was ſhip granted. .
good to bind the Succeffor ? By Dodderidge 'tis faid, that ſuch a Ju-
riſdiction is judicial, and that Grant is but a Commiſſion and Autho-
rity all 'Times remaining in the Ordinary. True it is, that Eccle-
fiaſtical Juriſdiction in judicial Acts may be executed by Subſtitute, but
in Law they are the Acts of them that ſubſtitute the other; by i H.
4. 64. C. 7 E. 4. 14.. 20 H. 6. 1. A Commiſſary may excommuni-
cate and prove a Teſtament, but that ſhall be in the Name of the
Ordinary. 20 E. 3. And a Grant of that by the Biſhop is not good
but during his Life, and ſhall not bind his Succeſſor ; for the Law
hath appointed who ſhall execute fuch Juriſdiction ſede vacante, viz.
the Archbiſhops in their ſeveral Provinces ; by 17 Ed. 3. 23. The
Archbiſhop and the Dean and Chapter cannot grant the Juriſdiction of
the Warden of the Spiritualities to hold after the Death of the Arch- Warden of
biſhop, which is a more ſtrong Cafe. And if the Subſtitute as above. the Spiritua-
faichoffends, the Ordinary ſhall be puniſhed for it, which is unreaſona-
ble, and the Grant being void cannot be made good by the Confir-
mation of the Chapter. And by Coke Chief Juſtice, if that ſhould
be a good Grant to bind the Succeſſor, then the Succeſſor cannot
remove him, and yet the Succeſſor Thall anſwer for the Acts
and Offences of the Commiſſary, which would be too hard
Prebend of Hatcherly's Cafe. Nog. 153. And it is ſaid, that an Of-
fice judicial, or partly judicial and partly miniſterial, cannot be
granted in Reverſion, though an Office miniſterial may. 11 Coke
4. Auditor Curl's Cafe. 2 Roll's Abr. 154. However the Dean
and Chapter's Confirmation will not make valid the Biſhop's Grant
of an Office for Two Lives ; for the ſame Neceſſity which makes the
Grants
lities.
ز
the
446
The Clergy-Man's Law: Or, Chap. XLII.
ancient Of-
face for Two
ftom.
Grant in Rc-
154)
Biſhops Grants of Offices good for One Life, will not extend to Grants for
Leales.
Two or more Lives. 1 Car. George Biſhop of Chicheſter v. Freeland.
Grant of an Bridgman 30. Trin. 8 Car. B. R. Walker v. Sir Jalon Lamb. 1 Cras
259.
And if the Grant be made for Two Lives, and one of them
Lives void. die before the Bifhop, ſo that there is but one Life in Being againft
the Succeffor, yet the Grant being originally void, cannot be made va-
lid by any After-Accident; by Harey and Croke the faid Cafe of the
Aliter, if it. Bifhop of Chicheſter v. Freeland, Cro. 50. Yet if an Office by Cu-
be by Cu ftom hath been uſed to be granted by any Biſhop for Two Lives, ſuch
Grants for Two Lives by ſuch Biſhop, with Confirmation of the
Dean and Chapter, are good, as ſeemed to be agreed concerning the
Office of Official or Chancellor of the Biſhop of granted to Two
Perfons, and the longer Liver of them, ſuch Grants having been u-
fually fo made by the Bifhops there. Mich. 3 W. and M. B. R. Jones
v. Bean. Neither may the Bifhop grant an Office with the ancient
Fee to one, and after make a Grant of it in Reverſion to another,
becauſe there is no Neceſſity for the fecond Grant ; and if ſuch Grants
were good, by the fame Reaſon they might be made in Tail or in
Fee, which would be directly againſt the Meaning of the Statute ;
nor can any fuch Grant be made good by any After-Act of the Gran-
tee, as by Surrender, Releaſe, or the like. But if by Preſcription
verſion by a
Time out of Mind, a Biſhop, or other Eccleſiaſtical Corporation,
Preſcription. hath uſed to grant an Office in Reverſion, Habendum after the Death
of the prefent Grantee for Life, ſuch Grant is good with Confirma-
tion, and that without the Recital of the former Eltate. 2 Roll's Abr.
by Dyer ; to which Manwood faid, that it is the Order in the
Arches, and in the Prerogative Court, and of all the Courts of Paul's
to grant the Offices in Reverſion, and that every Office which doth
belong to the Spiritual Courts are granted in Reverſion ; to which
Dyer replied, I do not care nor regard what they do, but what they
ought to do; and according to his Opinion, he ſaid it had been there
lately adjudged, and that a Prefcription ought to be laid. Mich. 15
Eliz. C. B. Leon. 31, and the Biſhop of Salisbury's Caſe, vouched
in the Biſhop of Chicheſter and Freeland's Cafe. Paſch. 2 Car. i Cro.
49. Mich. 8 Car. B. R. Young v. Stowel. 1 Cro. 279, and Jones 310.
Trin. 15 Car. B. R. Young v. Fowler. i Cro. 555, and Marſh 38.
Trin. 8 Car. B. R. Walker v. Lamb. Jones 263. But if no Preſcrip.
tion be for ſuch Grant, it is void againſt the Succeſſor; by Harvy and
Croke. I Cro. 49. And when the Queſtion was, Whether an Office
had been uſually granted in Reverſion? The Plaintiff to prove it
ſhewed a Grant of 4 Ed. 6, to one in Reverſion, and confirmed
i Eliz. and that the 7th of Eliz. the Reverſioner ſurrendred, and
took a new Grant to him and another : It was held by all the Court,
that this was a good Inducement to believe that the Office was anci-
ently fo granted in Reverſion ; but being Matter of Fact it was left
to the Jury, and they found for the Plaintiff, who after exhibited a
Bill in the Chancery to be eſtabliſhed in Poffeffion according to the
Verdict. Mich. 8 Car. B. R. Young v. Stowel. 1 Cro. 297, and Jones
of a neces- 310. But a Biſhop may grant a new Office that is neceſſary with a
ſary new Of- reaſonable Fee, the fame being confirmed by the Dean and Chapter,
fice with Fec. and it ſhall bind his Succeſſor as is ſaid to be adjudged. 1o Fac. C.B.
in the Caſe of the Biſhop of Ely, who granted the Office of keeping of
his Houſe and Garden for Life with the Fee of 3 b. per Ann. 1 Cro. 48.
2
If
Chap. XLII. The Complete Incumbent. . 447
Leales.
If a new Biſhoprick be founded (as divers were in the Time of H. 8.) Biſhops
the Biſhops of ſuch new Biſhopricks are reſtrained by 1 El. as others of
old Foundations, and may
even as they grant Offices of Neceſſity for Life
with Confirmation of the Dean and Chapter, that is in Poſſeſſion with a
reaſonable Fce; (the Reaſonableneſs of which Fee ſhall be decided by
the Courts of Law in which Adion concerning it ſhall depend) as ex-
cepted out of the general Reſtraint of the faid Statute. Trin. 23. Eliz.
Boulton's Cafe, vouched in the Biſhop of Chicheſter and Freeland's
Caſe, 1 Cro. 50. Paſch. 27 Car. 2. Ridley v. Founel, 3 Keble 472, 506.
And it is ſaid in the fame Caſe of Ridley v. Pownel, by Hale Chief
Juſtice, that before the Statute i El. there was no Difference in grant-
ing Offices between the ancient and the new Biſhopricks, they both
made their Grants as Owners, and not by reaſon of any Preſcription;
therefore, if
any new or old Biſhoprick uſed to make Grants of Of- if ſuch ano
fices for One, Two or Three Lives before that Statute, they nay do fice inay be
ſo after the ſaid Statute: And it was alſo ſaid by him, that the new granted to
Biſhopricks, being taken out of the old, ſhall have the ſame Preſcriptions for, which
and Appendancies to the Part fo taken out, as were in the old Biſhop- was not uſed
before i Eliz.
ricks: And the other Juſtices inclined to be of the ſame Opinion with
Hale : But in this Cafe, becauſe it was only found by ſpecial Verdict,
that this Office had been granted ſeparalibus Temporibus ſince the Foun-
dation of the Biſhoprick, which was in the Time of H. 8. and that
might be, and yet not before, but after the Statute i El. For this In-
certainty, and to ſupply this Defect in the Verdict, a new Venire Fa-
cias was taken out to have this Matter more ſpecially found. Levinz
2 Rep. 138. So that by the Opinion of the Court in this Cafe it ſeems
to be, that no Office can be granted by any Biſhop to bind his Succef-
for, which was not an Office, and uſed to be granted, before the Sta-
tute i El. and the ſame Law muſt be as to Offices grantable by other
Eccleſiaſtical Perſons by the 13 Eliz.
A Biſhop of a new Biſhoprick cannot grant an Annuity pro Confilio Grant of an
impenſo & impendendo to bind the Succeſſor, though it be confirmed; Confilio impen-
for when ſuch an Annuity was granted by the Biſhop of Cheſter, which lo & impen-
is a new Biſhoprick, and the Grantee brought a Writ of Annuity againſt
the Succeffor, and did declare that the Predeceſſors of the ſaid Biſhop
had granted reaſonable Fees, but did not aver that this Fee had been
granted before; the Opinion of the Court was againſt the Plaintiff.
Trin. 30 El. Boulton's Cafe, vouched in the Bishop of Chicheſter and
Freeland's Cafe, Bridgman 30. But. Croke Juſtice vouching this
Bolton's Cafe, in the Biſhop of Chicheſter and Freeland's Cafe,
Paſch. 2 Car. Ley 75. faith that Bolton averred in this Cafe that
it was the ancient Fee; and the Reaſon, for which Judgment was
given againſt him, was, for that this was a voluntary 'Thing, and not an
Office, to elect one Man to be of his Council, and it was not of Ne-
ceſſity to have this Man or that Man of his Council, for peradventure
the Succeffor would not make ſuch Election. And what is ſaid of a
Biſhop with reſpect to the Statute of 1 Eliz, is alſo true with reſpect
to the Statute of 13. Eliz. as to Eccleſiaſtical Perſons reſtrained by that
Statute, with this Difference; That though a Biſhop, or other fole Cor-
poration, cannot grant an Office for One Life without Confirmation,
as being a Grant at Common Law, yet a Dean and Chapter, or other
Corporation aggregate, may makc fuch Grant without the Confirmation
of
any. Trin. 1:1. Fac. C. B. the Biſhop of Salisbury's Cafe, 10 Co. 60.
Paſch. 32 Eliz. Sale v. Biſhop of Coventry and Marſh, 1 Anderſ012
241.
dendo.
448
The Clergy-Man's Law: Or, Chap. XLII
(6.)
muſt be of
Lands and
Tenements
Bilhcps 241. And Note, That neither Biſhops by the 14th of Eliz. nor other
Leales. Eccleſiaſtical or Collegiate Corporation by the 13th of Eliz. are re-
ſtrained from making Grants of Copyholds in Fee, in Tail, or for Lives,
or for any Number of Years, according to the Cuſtom of the Manor
nor is Confirmation neceſſary to make ſuch Grants good, though it bé
made by a fole Corporation,
as by Biſhop, Prebendary, 6c.4. Co. 23, 24,
A Sixth Rule to be obſerved in the making of theſe Leafes, is
,
Theſe Leaſes That it muſt be of Lands or Tenements which have moſt commonly
been letten to Farm, or occupied by the Farmers thereof by the Space
of Twenty Years next before the making of ſuch Leaſe, fór that it is
which have ſaid in Stat. 32 H. 8. (Which have moſt commonly been letten.) And it
monly been is ſaid by my Lord Coke, that if the Lands of which the Leaſe is made
,
letten, Coc. have been letten for Eleven Years at one or at ſeveral Times within
Twenty Years next before the making of ſuch Leaſe, it is ſufficient, i
Inſtit. 44. b. But where Lands belonging to the Archbiſhop of York
had been anciently and uſually demiſed till within Twenty Years, in
which Time they had been in the Hands of the King and of the Archi-
biſhop, but for the Two laſt Years only had been leaſed by the late
Archbiſhop; it was held by Keeling Chief Juſtice, and Twiſden, that
this was a good Leaſe within the Statute of 32 H. 8. to bind the Suc-
ceſſor, for that thic Statutc did not intend to introduce a Diſability as to
the Lands to be leaſed, but only of the Eſtate to be granted out of
Lands, and that it would be contrary to the Intent of the Statute to
make other Conſtruction; and if Lands had been leafed for Eleven
Years only, that is not ſufficient within the Statute, and that the
Collection of the Lord Coke, i Inſtit. 44, was falſe, and not warrant-
ed by the Statute ; for that the firſt part of the Statute ſeems to refer to
a more ancient 'Time of being leafed than Eleven Years only: But
JVindham and Moreton Juſtices were of a contrary Opinion, That the
Statute ought to be obſerved in all its Circumſtances; which was not
in this Caſe, the Lands having been out of Leaſe for above Twenty
Years ; and if other Conſtruction ſhall be made of the Statute, a great
Inconvenience might enſue, for under Colour of Land being anciently
leaſed, Biſhops may leaſe all they have, and leave nothing for the Suc-
ceſſor wherewith to maintain Hoſpitality, and therefore in their Opini-
ons the Land ought to have been both anciently and newly leafed, o.
therwiſe the Succeſſor ſhall not be bound; but Windham dying, the
Two Judges gave Judgment according to their opinion, contra More-
ton, Pafch. 21 Car. 2. B. R. Pemble v. Stern, 1 Sid. 316, 416, fame
Cafe, 2 Keb. 325. 1 Levinz 212, and Raymond 165. And by Vaughan
Chief Juſtice, Lands long ſince leaſed for 500 Years, are Lands uſually
demiſed, though they have not been more than that once demiſed, for
The more re- that the more received Senſe of the Words (Land uſually demiſed] is,
ceived Senſe the common Continuance of Lands in Leafe, though the Words may
be taken in another Senfe, viz. for the oftner Farming, or repeated
[Lirnds uſual-
ly demiſed.] Acts of leaſing Lands, Vaughan's Rep. 34, fame Cafe, Sir Tho. Jones's
Rep. 37. And it is ſaid, that Copyhold Lands that have been granted
by Copy of Court-Roll in Fee for Life, or Years, according to the
Cuftoni of the Manor, have been fufficiently let to farm within this
Statute, altho' an Eſtate granted by Copy is in Judgment of the
Common Law, but an Eſtate at Will, yet all Lands that have been
accuſtomably uſed to be demiſed at Will, by thoſe who have the In-
heritance of the Lands, arc Lands let to Farm within this Statute, ſo
if they be leaſed by Indenture, or the Reverſion of them only. Paſch.
of the Words
37ac.
4
Chap. XLII. The Complete Incumbent.
449
it may
3 Jac. Heydon's Cafe, 3 Co. 7. Trin. 3 Jac. B. R. in the Dean and Bilhops
Leares.
Chapter of Worceſter's Cafe, 6 Co. 37. And it is faid to be often fo
adjudged. Trin. 3 Fac. B. R. Baugh v. Hayns, 2 Cro. 76. Raymond
167. So Lands that have been but twice letten, are faid to be Lands
uſually letten; but otherwiſe it is, if they have been but once letten, or
if they have been leafed by one Contract from Year to Year for Three
Years, for that this is but one Leaſe. Paſch. 2 Fac. B. R. 2 Roll's Abr.
261, 262. Vaughan 33.
But if the Temporalities have for divers Years been in the King's King's Leares
Hand's, as for Fifty Years, or if it cannot be made to appear that the ſhall not a-
Lands let were let by the Biſhop, although Leaſes have been made of vail the Bi-
1hop.
then out of the Exchequer, yet upon this Account a Leaſe by a new
Biſhop of ſuch Lands will be void; for the King making Leaſes upon
the Eſtate that he hath during the Vacation, ſhall not make the Bi-
ſhop's Lands, &c. be demiſeable within the Statute, becauſe the King
hath not an Eſtate of Inheritance thereof. Paſch. 19 Jac. Br. R. the
Biſhop of Oxford's Cafe, Palmer 176.
And this Rule is not only to be obſerved by Perſons that make Grants How this
or Leaſes by Vertue of the Statute of 32 H. 8. viz. without Confirma- Rule is to be
tion, but alſo by Biſhops, and other fole Corporations, although Con-
firmation be made of their Leaſes, and alſo by Corporations aggregate,
that need no Confirmation ; for though by the Statute of 32 H. 8,
which enables Perſons Eccleſiaſtical to make Leaſes for Three Lives or
Twenty-one Years without Confirmation, is the only Statute that ex-
prefly puts this Condition upon Leaſes. made by Eccleſiaſticks; and ſo
be thought that Lands not uſually let, may be well letten with
Confirmation, yet both the reſtraining Statutes of 1 El. and 13 El.
do implicitly reſtrain from making Leaſes of Lands not uſually let,
becauſe they both require that the ancient Rent ſhall be reſerved; by
which it is clearly hinted and intended, that the Land letten ſhall be
ſuch Land as hath been uſually demiſed, for otherwiſe the ancient
Rent cannot be reſerved for it. Hill. 44 Eliz. C. B. the Biſhop of He-
reford and Scory, 3 Cro. 874.
And as theſe Leafes muſt be of Lands and Tenements which have Covenants to
moſt commonly been letten to Farm, ſo no Covenants can be added be obſerved.
in any new Leaſe to bind the Succeſſors which have not been uſed in
former Leaſes; therefore where a Biſhop made a Leaſe, and covenan-
ted that he and his Succeſſors would pay all 'Taxes during the Term,
and in an Action of the Covenant brought againſt the Succeſſor for not
paying a Tax made by Parliament in ſuch a Year during the Term:
Judgment was given for the Defendant, for that the Plaintiff did not
Thew that the like Covenant had been in former Leaſes; but it was
faid, be this Covenant as it will, it would not avoid the Leaſe. Mich.
24 Car. 2. B. R. Davenant v. Epiſcop. Skirum, 2 Levinz 68, ſame
Caſe, Vent. 222, and 3 Keb. 69.
A Seventh Rule to be obſerved is, that upon every ſuch Leaſe there (7)
muſt be reſerved fo much yearly Rent, or more, as hath been moft That the ac-
accuſtomably yielded and paid for the Lands within Twenty Years next Rentor more
before ſuch Leafe thereof made, to be due and payable yearly to the muſt be re-
Leſſors and their Succeſſors during the Continuance of ſuch Leafe.
This is an expreſs Condition in the Statute of 32 H. 8. c. 28, and in
the Statute of i Eliz. C. 10. 13 Eliz. C. 20, ſo that no Leaſe can be
made by any Eccleſiaſtical or Collegiate Corporation to bind Succef-
fion, but with Conformity to this Rule; no not with Confirmation, in
Cafes
fcrved.
ጊ zz
450
The Clergy-Man's Law: Or, Chap. XLII.
Bilhors
heales.
There muſt
The accu-
ſtomed Rent
whar.
Cafes when Confirmation is neceſſary; for though the Exception in
the iſt and 13th of Eliz. concerning the accuſtomed Rent is more ge-
neral than that of the 32d of H. 8. yet muſt the Pattern of the 3 ad
of H. 8. be followed, 1 Inft. 45. Hardres Rep. 326.
This Rule contains ſeveral Things to be particularly noted ; as Firſt,
be a Rent. There muſt be a Rent reſerved upon every ſuch Leaſe, Carter and
Cleypole's Cafe. Moor 593. So that the Leaſe muſt not be of Things
that lie meerly in Grant, as is before faid, out of which no Rent can
be reſerved; and this is the Ground or Reaſon of the Fifth Rule be-
fore laid down.
Secondly, There muſt be ſo much Rent reſerved for the Things let,
as hath been moſt accuftomably yielded and paid within Twenty
Years next before ſuch Leaſe made; and if there hath been different
Rents reſerved upon ſeveral Leaſes, the accuſtomed Rent mentioned in
the Statute ought to be underſtood of the Rent reſerved upon the laſt
Leaſe, and not upon any former Leafe, for that the Rent having been
altered ſince, cannot be called the accuſtomed Rent; by Hale Chief
Baron, in Moris and Antrobus's Cafe, Pafch. 15 Car. 2, in Scaccar.
Hardres 326. But if One of Three Manors, formerly let together,
for a certain Rent be let alone, and in the new Leaſe no certain Rent
be reſerved, but it is only ſaid, rendring to the Leſſor and his Succef-
fors the uſual and accuſtomed yearly Rent and Services at the Days and
Times accuſtomed; in this Cafe no Rent at all is reſerved, and there-
fore the Leaſe is void. Mich. 3 Car. C. B. Owen v. Thomas Aprees,
Whether the i Cro. 94. For fo (I take it) muſt that Caſe be underſtood, compa-
Leaſe need ring it as reported here by Croke (which is very obſcure) with the ſame
what the for- Cafe as reported by Hetly 22, though by Chief Juſtice Vaughan, the
Leaſe was of all the Three Manors, excepting only Parcel of one of
them; but that will be the fame Thing as if the one whole Manor had
been entierly excepted: for if the whole was not demiſed, there could
be no uſual and accuſtomed Rent for that which was demiſed: But 'tis
agreed by the ſaid Chief Juſtice, if the three Manors had been in-
tirely demiſed as uſual, reſerving the ancient Rent, without expreſſing
what it was, the Leaſe and Refervation had been good. 3 Keble 380.
If one Acre So if a certain Parcel of Land hath been accuſtomably letten for a cer-
tain Rent, and in a new Leaſe of the fame Lands, one Acre of Land
mably let-
ten, be ad- more, not accuſtomably letten, is demiſed with the other Parcel, al-
ded, EC.
though that ſo much more than the old Rent be reſerved, as the Lands
added, which were not uſually letten, be worth yearly according to the
extended Value thereof; yet this Lcafe will not hold good by the Sta-
tutes, becauſe here is Land let not uſually let, and the Rent iſſueth
out of the whole, ſo that the accuſtomable Řent for the Lands that had
been accuſtomably letten is not reſerved; or if the accuſtomable Rent
of Lands accuſtomably letten be reſerved in a new Leaſe thereof, and
one Acre of Land be added in the Leafe, though that Acre was of
Lands alſo uſually letten, yet the Leaſe is void for the whole. So if
Lcafes have been formerly and uſually made of Land wherein was an
Exception of all the great Trees, as Oak, Aſh, Crab-Trees, Gc. and
after a Leaſe is made without the ſaid Exception, ſuch After-Leaſe is
void. Paſch. 15 fac. B. R. Smith v. Bowles, 3 Bulſt, 290. The
Rcafon given is, becauſe there is more let by the laſt Leafe than was
anciently let by the former, viz. Trees, and the Profits of them, as, the
Maſt and Fruit, the Boughs, and the Soil on which they ſtand; for
when the Trees were formerly excepted, the Boughs, Fruit, &c. were
alſo
mer Rent
WAS.
not accuſto-
1
Chap. XLII. The Complete Incumbent.
451
Leares.
Leaſe of
rage.
ز
ز
alſo excepted thereby. Hill. 15 Jac. 2.Cio. 458. So a Leaſe was made Bilong
of a Rectory.rendring Forty Pounds per. Annum; and a Couple of Ca-
pons, or Six Shillings Eight Pence in Money over and above the ſaid
Rent. And by Hale Chief Baron, this ſecond Leaſe was not good, by
reaſon that in the former I.caſe the Capons were reſerved, and ſo Part
of the Rent; in the ſecond Leaſe the Husband only,.covenants to pay
them, which Covenant of his will not bind his Wife, if the ſurvive
him, therefore his Covenant will not amount to a Reſervation;
other-
wiſe, if both had covenanted, or if the Leaſe had been made to the
Husband alone, with ſuch a Covenant. Pafch. 15 Car. Saccar. Morice
V. Antrobus, Hardres 325. Yet if one ſeized of a Parſonage, doth let
a Portion of the Tithes for One and twenty Years, rendring 81. Rent, Tithes, with
and doth referve the Paſturage of a Colt in the Land of the Leſſec; a Reſerva-
and the Leafe being expired, the Succeſſor doth let the Tithes in the tion of Paftu-
like Manner for One and twenty Years, omitting the Paſturage of the
Colt; in this Cafe the ſecond Leaſe is good, notwithſtanding the
Omiſſion of the Paſturage ; for that was a Thing only reſerved to the
firſt Leſſor and his Alligns, for that it was reſerved out of the Land of the
Leſſce, and the Succeffor could not reſerve Paſturage out of the Land
of the firſt Leſſee, he not being his Tenant of the Tithes, and fuch
Reſervation is void ; but otherwiſe it had been, if the Refervation of
the Paſturage had been general ; per Curiam, Paſch, 17 Jac. B. R.
Euſden v. Denny, Palmer 106.1 Mod. Rep. 203. 2 Mod. Rep. 57.
So if ſeveral Parcels of Land, &c. have formerly been letten together
for a certain Rent, and then one Part or Parcel of the ſame Land is let
alone, and a Rent pro rata is reſerved, this is good, becauſe in Sub-
ſtance the accuſtomable Rent is reſerved, and the Succeſſor hath no Pre-
judice. i Inft. 44. Mich. 26 Car. 2. B. R. Threadneedle. y. Lineham,
3
Kch. 380. But if a full Proportion of the Rent be not reſerved ac-
cording to the Value of the Part let alone, eſtimating it with the other
Part not let with it, it follows that the Leafc of this part alone is
void.
Or if Copyhold Lands demiſcable for 'Three Lives rendring a certain Statutes ex-
Rent; and Heriotable upon the Death of every Tenant dying in Pof- tend not to
feſſion, be let by Indenture for three Lives, rendring the ancient Rent Services:
but without the Reſervation of any Heriot, yet the Non-reſervation of
the Heriot ſhall not impeach the Leaſe; for the Statutes are, that the
ancient Rents ſhall be reſerved, which is intended only of the very
ancient Rent, and doth not extend to caſual and accidental Services,
as Heriots, &c. and an Heriot is not an annual Thing, nor depending
upon the Rent. Trin. 3 Jac. B. R. Baugh v. Haynes,, 2 Cro. 76. Trin.
3. Fac. B. R. Dean and Chapter of Worceſter's Cafe, 6 Co. 37. But if
the Demeſnes of a Manor have been uſually demiſed excepting the
Copyhold Lands, (for Copyhold Lands are accounted as part of the
Demefnes of a Manor, i Co. 46. b.) but the Services have not been de-
miſed, and a Leaſe be made of the whole Manor reſerving the ancient
Rent, this Leaſe is void, adjudged in Chief Baron Tanfield and Fox's
Café, vouched in the Biſhop of Chicheſter and Freeland's Cafe, Ley 77.
But a Biſhop feiſed of Two, Manors, Copyhold and Free, leafeth
them to B. for Three Lives, reſerving the ancient Rent; B. after-
wards grants the Demeſnes of one of the Manors to D. for Ninety-nine
Years if the Lives live ſo long; and after that grants and aſſigns all his
Term and Intereſt to N. who ſurrenders to the Biſhop, and takes a
new Lcafe for Three Lives of both the Manors (except the Lands
Ź z z 2
granted
1
452
.
The Clergy-Man's Law: Or, Chap. XLII
upon
theSucceffor.
More than
rcſerved.
Biſhops granted to D.) at the old Rent, then a new Biſhop is made, and all
Leales.
the Lives of the firſt Leaſe die; whether the Leaſe made to N.
the Surrender was a good Leaſe to bind the Succeſſor of the Biſhop
that made it or not, was the Queſtion; adjudged that it was a gocd
Leaſe, by reaſon there was no Prejudice, but an Advantage to the Suc-
Where the ceſſor by the ſecond Leaſe: But Vaughan and Ellis were of a contrary
is ne Prejuc Opinion, becauſe the old Rent could not be ſaid to be reſerved, when
dice, but an the Denieſnes of one of the Manors were excepted out of the ſecond
Advantage to Lcafe. Mich. 26 Car. 2. B. R. Thredneedle v. Lineham, 3 Keb. 372,
595, the ſame Caſe, 1 Mod. Rep. 203, and 2 Mod. Rep. 57. So if a
Biſhop doth leafe Parcel of the Demeſnes of a Manor for Life, not
warranted by the Statute of 1 Eliz. and after doth Leaſe the Manor
to another for Life, the ſaid Parcel fo before leafed for Life ſhall pals
with Attornment of the firſt Leſſee, for that the ſaid Leafe did not
make any Diſcontinuance, but the Reverſion thereof continued Par-
cel of the Manor. Pafch. 11 Car. B. R. Walter v. Jackſon upon a Writ
of Error; and by Barkley it had been formerly ſo adjudged in C. B.
2 Rolls Abr. 58.
Note alfo from this Rule, That to let Lands, c. for more than
the ancient the ancient or accuſtomed Rent, makes no Avoidance of a Leafe, for
Rent may be
that may be done by the very Letter of the Statutes.
Alſo by the Leafe, the Rent muſt be due and payable yearly; and
therefore if the Rent hath been by the former Leaſes made duc and
payable at Four Days in the Year, or at Two Days in a Year, and
after is made due and payable yearly, or but at one Day in each
Year, it is fufficient, and hurts not the Leaſe; for the Statutes are, that
the Rent be reſerved and payable yearly, and therefore if the Rent
be yearly reſerved the Statutes are ſatisfied. Trin. 3 Jac. Dean and
Chápter of Worceſter's Cafe, 6 Co. 37.
Trin. 3 Jac. Bangh v. Haynes,
2 Cro. 76. So if the Rent in former Time was uſually reſerved to be
paid upon the Land, and now by a new Leafe it is reſerved to be paid
at any remote Place, yet it is well enough; by Clench, 28 El. C. B.
Grindal Biſhop of York's Cafe, 4 Leon. 78. But the Rent muſt be re-
ſerved payable every Year to the Leſſor as well as to the Succeſſor, for
though the reſtraining Statutes were made for the Benefit of the Suc-
ceſſor, yet it is not fufficient to reſerve the ancient Rent to the Succeſſor,
and none at all or leſs Rent to the Leſſor himſelf, for that by the Letter
of the Statute of 32 H. 8, the Rent muſt be payable yearly during the
whole Term of Twenty-one Years, or Three Lives. Alſo the Leafe muſt
be ſuch which may not only referve a yearly Rent, but alſo ſuch as there-
by the Rent muſt be payable, recoverable yearly, both by the Leſſor and
the Succeſſors; and this a Ground or Reaſon of the fifth Rule, and of
ſome of the Cafes relating thereunto. If a Leafe be let for One and
twenty Years from Michaelmas, reſerving the Rent during the Term,
payable at the uſual Feaſts, or within Ten Days after; although by the
Reſervation the laſt Quarter Rent ſeems to be payable within the
Term, but 'Ten Days after the Term ended, yet this is a good Leafe,
and the Rent being reſerved payable during the Term, there ſhall not
be allowed Ten Days to the Leffee for the Payment of it the laſt Quar-
ter. Trin. 25 Car. 2. B. R. Baily v. Murin, 1 Ventris 245.
An Eighth Rule to be obſerved in making Church or College Lea-
muſt not be fes is, that they muſt not be made without Impeachment of Waſte;
peachment of this is alſo an exprefs Condition in the Statute of 32 H. 8, cap. 28, but
is not mentioned in the Statute of 1 Eliz. or 13 Eliz. c. in, yet as
(8.)
Thefe Leares
Waste.
to
Chap. XLI. The Complete Incumbent.
453
Leaſes.
yet
Waſte.
to 13 Elize it has been held and reſolved, that the Perſons thereby re- Bilbops
Itrained from making long and unreaſonable Leafes, are by the Equity
of the ſaid Statute reſtrained to make Leafes diſpuniſhable of Wafte;
for the Preamble ſpeaks, that unreaſonable Leaſes were the chiefelt
Cauſes of Dilapidations, and thc Decay of all Spiritual Livings and
Hoſpitality, ſo that the Statute was made to prevent ſuch unreaſon-
ble Leaſes that had ſuch ill Effects, and by confequence to Cure ſuch
ill Effects. Trin. 3 Jac. B. R. the Dean and Chapter of Worceſter's
Cafe, 6.Co. 37. But that I find not that any ſuch Conſtruction hath
been made of the Statute of i Eliz. which concerneth Biſhops alone,
that Statute being made alſo to reſtrain their making of unreaſon-
able Leaſes muſt be thought to bear the fanie Conſtruction. See i
Inft. 45. , and by Whitlock, Hill. 22 Fac. Evans and Kiffin v. Aſcue,
Palmer 468. However, Leaſes made by them without Impeachment
of Walte, and not confirmed by the Dean and Chapter, are void by
Stat. 32 H. 8. c. 28. And if ſuch Leafes being ſo confirmed ſhall not
be thought to be made void by the Statute of i Eliz. yet I apprehend,
that if ſuch Tenant go about to commit Waſte, however his Leaſe be
made, he may be ſtopped by Prohibition, and after attached if he per- Prohibition
fift
, for ſo may the Biſhop himſelf or any other Church-man, in caſe to prevent
he doth Waſte on the Church's Dower. Mich. 12 Jac. Richard Li-
ford's Cafe, 11 Co. 49. And this may be not only to prevent Waſte in
cutting down Trees, but for pulling down or defacing Houſes, or the
like. Mich. 13 Jac. the King v. Žaker, Bulſtr. 91. Yet a Prohibition
being moved for, to hinder a Parſon from digging Lead Mines with-
in his Glebe, the Court doubted of it, but inclined that this was not
ſuch a Waſte for the which he ought to be prohibited, for it ought to
be ſuch Waſte as was to the Deftruction of the Church, for the which
a Parſon ought not only to be prohibited, but may be deprived as a
Dilapidator. Mick. 15 Car. 2. the Lord Rutland v. Green or Gee, i
Sid. 152, and i Keb. 557. See for this Matter, 2 H. 4. 3. Moor 917.
Godb. 259. 3 Bulft. 154. 2 Bulftr. 279. And if a Biſhop's Leaſe cannot
bear out the Tenant in doing that which he himſelf could not lawful-
ly do, were the Thing leaſed in his own Poſſeſſion, yet if Land hath
been accuſtomably letten by a Biſhop, Gr. without any Exception of
Timber-Trees, as Oak, Ath, Gc. growing thereupon, ſuch Leaſe is
good, for the Tenant may only by fvch Leaſe take the Boughs and
Maft thereof, he not having an abſolute Propriety in the Trees them-
felves by ſuch Leafe, but only the Fruit and Boughs; nor hath the
Biſhop, &c. himſelf a greater Right in them, as may be collected
from Smith and Bole's Cafe, Hill. 15 Jac. 2 Cro. 458, fame Cafe, 3
Bulſtr. 290. Yet 'tis ſaid that a Parfon hath ſuch an Eſtate and Inte-
reſt as he may maintain an Action of Walte, for Waſte in cutting down
Trees, Gc. by his Ternior. 10 H. 7. 5.
And note, That Leaſes may be made without Impeachment of Wafte, Two Ways
two Ways, viz. either expreſly by exprefs Words in the Leaſe decla-
of making
ring the fame, or implicitly by Conſtruction of Law; as if a Leaſe be out Impeach-
made for Life, the Remainder for Life, this is diſpuniſhable of Waſte, ment of
and ſo not warranted, at leaft by the Statute of iz Eliz. c. 10. Trin.
3 Jac. B. R. Dean and Chapter of Worceſter's Gaſe, 6 Go. 37. But
if a Leafe be made to one for Three Lives this Leafe is good, becauſe
'tis not diſpuniſhable of Waſte, and the Occupant, if any happen, ſhall
be puniſhed for Waſte; for the Statute of Glouceſter, c. 5, gives an
Action of Waſte againſt any one that holds in any manner for Term of
Life
b.
Leaſes with-
4
454
.
The Clergy-Man's Law: Or, Chap. XLII.
fes.
One Third
reſcrved in
Corn.
Biſhops Life or Years, and an Occupation in this Cafe holds for Terın of Lif
Leafes.
and note a Bishop's Leaſe cxceeding the Statute is void in Toto. Sog
i Salk. 189.
Now concerning Colleges in the two Univerſities, the Colleges of
Wincheſter and Eaton, there is a particular Statute, which to tij
making good a Lcafe to be made by them, doth enjoin one Thing more,
for it is enacted by Stit. 18 Eliz. c. 6.
That 110 after, Provoſt, Preſident, Warden, Deali, Goverlich,
Stat. 18 Eliz. Reão, oq chief Ruler of any College, Cathedral Church, Hall, or
College Lca- Houſe of Learning in any of the Univeräties of Cambridge oz Oxford,
1102 any Provoſt, Warden, Od other nead Dfficer of the Colleges vê
Wincheſter of Eaton, 110, the Coppolation of any of the ſame, by what
Title, Stile od Name Coever they now be, ſhall od may be called, af:
ter the End of this preſent Sellion of Parliament, thall make any
Leaſe for Life, Lives of Pears, of any Farm, 02 any their La:ids, Te
niements or other hereditaments to the which any Tithes, arable
Lands, Meadows or Paſture, doth op fhill appertain, ercept that the
Dne Chird part at the leaſt of the old Bent be reſerved in Coun fou
Part of the the ſaid Colleges, Cathedral Church, Halis and Foules; that is to
Rent to be ſay, in good quheat after the Rate of vjs. viijd. the Duarter, og
under, and good malt at vs. the Duarter, Dl under, to be delivered
yearly upon Days prefired, at the ſaid Colleges, Cathedial Church,
Halls or youres; and fo: Default thereof, to pay to the ſaid Colleges,
Cathedral Church, Halls or boules, in ready money, at the Elegion of
the laid Lefſees, their Erecutors, adminiſtratoys and Aligns, after the
Rate of the beſt wheat and wait in the market of Cambridge, for the
Reits that are to be paid to the uſe of the Houſe of Houſes there ;
and in the market of Oxford, for the Rents that are to be paid to the
Ule of the Houſe oz youſes there; and in the market of Wincheſter,
foz the Rents that are to be paid to the uſe of the houſe os Boules
there ; and in the Market of Windſor, foz the Rents that are to be
paid to the Ule of the houſe og houſes at Eaton, is op ſhall be cold the
niert market Day before the ſaid Kent ſhall be due, without fraud og
Deceit. And that all Leaſes otherwiſe hereafter to be made, and all
collateral Bonds, 02 aſurance to the contrary by any of the ſaid CO2-
How to be pozations, ſhall be void in Law to all Intents and purpoſes. The
expended.
Came Tuheat, malt 02 agoney coming of the ſame, to be expended ta
the uſe of the Relief of the Commons and Diet of the Caid Colleges,
Cathedjal Church, Balls and Houſes only, and by 10 Fraud ol Colour,
let az Cold away from the Profit of the ſaid Colleges, Cathedzal
Church, Halls and Houſes, and the Fellows and Scholars in the ſame,
and the Uſe afojelaid, uponi pain of Deprivation of the Governod and
chief Rulers of the ſaid Colleges, Cathedjal Church, balls and
Houtes, and all others thereunto conſenting.
But this Act,:02 any thing therein contained, thall not ertend, od be
rend to in any wiſe prejudicial to any Leale to be made of à Barn called
Mouncken Baril, with a certain portion of Tithes, riang, growing
and being in the Parich of Southweek in the County of Suſſex, being
Dárcel of the Dofiellions of Maudlin College in Oxford, ſo that the
Cerin demiſed in and by the ſaid Life erceed not the number of Teil
Years, from and after the feaſt of St. Michael the Archangel nert
coming.
Not to exo
Mouncken
Parn.
4:
Neither
Chap. XLII. The Complete Incumbent. .
455
Leaſee.
White.
Thall be in-
tended.
Neither thall this Act ertend to any Leaſe to be made by the Pred: Biſhops
dent and scholars of the College of St. John Baptiſt in Oxford, to
any peir-nail of Sir Thomas White, late Knight and alderman of Nor St. Fobom
London, Founder of the ſaid College; which Leaſe chall be made ac: Baptift col-
cording to the Meaning of the Foundation and Statutes of the founded by
Caio College of the manor of Fifield, and no other hereditaments. Sir Thomas
Stat. 18 Eliz. cap. 6.
This Statute enacting, That no Leaſe ſhall be made of any Farm, How the
or any of their Lands,
Tenements or Hereditaments, to the which any Word Tiches
Tithes, arable Land, Meadow or Paſture doth or ſhall appertain, ex-
cept One Third Part at the leaſt of the old Rent be reſerved in Corn,
&c. It hath been a Queſtion, whether this Word Tithes be to be in-
tended Tithes of Corn, or any Cuſtomary Tithes of Money, &c. as in
London, where Money is paid as the Tithes of Houſes; and adjudged
by Manwood Chief Baron, that it is to be intended of Tithe Corn;
for that the Parliament never meant to cauſe theſe Farmers to pay
Corn, who had no Corn or Land that beareth an annual Crop, as
Arable, Meadow or Paſture, and not of Wood, Heath, Mariſh, Gc.
But a Writ of Error was brought of this Judgment. Savil, Café 160.
This is a private Statute, and muſt be pleaded, otherwiſe the Court That this is a
need not take Notice of it. Savil, Cafe 198. fol. 129.
private Sta-
fol. 68.
tute.
CHAP. XLIII.
Leaſes by Parſons, Vicars, and others, of their
Ecclefiaftical Benefices.
IT
cars, Egoce
T follows next to be ſhewed particularly, what the Law is at this Leaſes of
Day as to Leaſes made by Parſons, Vicars, or others having Bene-
Parſons, Vic
fices or Promotions with Cure of Souls. As to which, theſe Things
are to be noted :
Firſt, That Parſons and Vicars are expreſly excepted out of the Sta-
tute of 32 H. 8. c. 28, ſo that they are not as other ſole Corporations
enabled by that Statute to make any Leafe to bind their Succeſſors
without the Confirmations of their Påtrons and Ordinaries.
Secondly, That they are not reſtrained by the Statute of 13 Eliz.
or other Statute, from making Leaſes (ſuch Confirmation being had) for
Twenty-one Years or Three Lives of Lands, &c. accuſtomably letten,
reſerving the accuſtomable yearly Rent; but by the faid Statute of
13 Eliz. they are, as others, reſtrained from making Leaſes or Eſtates
for longer Time, or without Regard to the Limitations therein men-
tioned.
Thirdly, That all their Leaſes muſt be made with Conformity to Muſt be
the Eight Rules before ſet down, even as others. But it is no neceſ- made with
fary Qualification in the Leſſor that he be a Prieſt; for if a meer Lay- to the Eight
man be admitted, inſtituted and inducted into a Benefice uſually let, foregoing
&c. and doth make a Leaſe thereof for Years or Lives, which is con-
firmed by the Patron and Ordinary, and then he is deprived, for that
hc
Rulcs.
456
The Clergy-Man's Law: Or, Chap XLIII.
rſons
Leales.
any
he is but a meer Lay-Man, yet this Leaſe ſhall bind the Succſſor, be-
cauſe he was a Parſon de Facto, and ſuch a one whereof the Law takes
Cognizance by his Induction, and the People cannot take Notice of
other : By Gaudy, Popham and Fenner, Paſch. 42 Eliz. B. R. Coſtard
v.Windet, 3 Cro. 775, fame Cafe, Moor 606. So it is not material
,
whether the Incumbent, be he Clerk, or Lay-Man, be of the Age of
One and twenty Years, for his Leafe ſhall be good though he be of
leſs Age, Brooks Abr. tit. Age, numb. 80. But though, as hath been
ſaid, it be not a neceſſary Qualification that he be a Prieſt, or of ſuch
an Age to bind the Succeſſor, yet it is neceſſary that he be an Incum-
bent pro tempore at leaſt. If he that is a legal Incumbent makes a
Leafe, &c. and after is deprived for not reading the Articles in Two
Months, or for other Cauſe, yet the Leaſe is good. 1 Rolls Abr. 476,
477. But if he that makes the Leaſe be but a ſuppoſed Incumbent, or
be in a Church by a Super-Inſtitution, or the like ſeeming Title, and
ſo be reputed the legal Incumbent, he cannot make a Leafe to bind
after his Death, or the Death of the true Incumbent: Accordingly the
Cafe was, that A. being made Biſhop in the Time of Edward the Sixth,
and he living, and not deprived, B. was conſecrated Biſhop of the fame
Dioceſe in the Time of Queen Mary, B. makes a Leaſe of Land Par-
cel of the Poſſeſſions of the Biſhoprick, and then both thefe Biſhops die,
(though the laſt ſurvived) it was adjudged, that albeit all judicial Acts
done by B. as Inſtitutions, Certificates, &c. were good, yet not ſuch
voluntary Acts as tend to the impoveriſhing of the Succeſſor; there-
fore the Leaſe was held to be void. Mich. 17 Jac. Obrian. &c. v.
Kinivan, 2 Cro. 552.
Though Leafes by Parſons or Vicars be in all Reſpects well made
Leaſes being and firin, yet they may become void before the Term limited in them
be expired; for it hath been enacted as followeth: That the Livings
void by 13E1. appointed for Ecclefiaftical Miniſters, may not by coưrupt and indirect
Dealings be transferred to other Ule; Be it enađed by the authority
of this preſent parliament, that no Leale after the Fifteenth Day of
May, nert following the Beginning of this Parliament, to be made
of any Benefice od Ecclefiaftical Promotion with Cure, 02 any Part
thereof, and not being impropjated, ſhall endure any longer than while
the Lello ſhall be ozdinarily reſident, and ſerving the Cure of ſuch
Benefice without Abſence above Fourſcore Days in any one year, but
that every ſuch Leale, (ſo ſoon as it, or any Part thereof, ſhall come
to any Poffeffion or Uſe above forbidden, or) immediately upon ſuch
abſence, fhall ceaſe and be void ; and the incumbent ſo offending, fhall
fo, the ſame loſe Dne Pear's pzofit of his ſaid Benefice, to be diftri-
buted by the Dedinary among the poor of the Pariſh : and that all
Chargings of ſuch Benefices with Cure, hereafter with any Pendon,
02 with any Profit out of the came to be yielded od taken, here-
after to be made, other than Rents to be reſerved upon Leaſes here:
after to be made, accouding 10 the meaning of this ax, fhall be utter:
ly void.
Provided, That every Parlon by the Laws of this Realm allowed
demiſing one to have Two Benefices, inay demile the one of them upon which he
fhall not then be moſt ozdinarily refident, to his Curate only, that ſhall
there ſerve the Cure for him ; but înch Leaſe thall endure no longer
than during ſuch Curate's Relidence, without abſence above Fortp
Days in any one year. Stat. 13 Eliz. cap. 20.
How theſe
well made
may become
6. 20.
Provifo for
Bencficc.
I
And
Chap. XLIII. The Complete Incumbent:
457
Lcales.
14 Eliz. coli.
And by the Statute of 14 El. 11, it is enacted, That theſe Words, Parſons
[So ſoon as it, or any Part thercof, come to any Poſſeſion or Uſe a-
bove forbidden, or] which, words are contained in the ſaid Thirteenth ivords dit
Pear, touching Leales or Benefices, and other Ecclefiaftical Livings continued by
with Cure, thall not be revived by this act, but remain diſcontinued,
and thall from hencefoxth be omitted out of the Caio Aã ; any Thing
in the ſaid AX, od in this act, to the contrary notwithſtanding.
Notwithſtanding this Statute of 13 Eliz. if a Parſon or Vicar have If the Par-
made a Leaſe of his Glebe or 'Tithes, and being reſident in the Parfo- fon's Leaſe
nage or Vicarage Houſe, as Statute of 21 H. 8. cap. 13, doth require he perform-
he ſhould, or doth not uſually dwell in the fane Pariſh, and yet doth ing his Cure,
upon all Occaſions reſort to his Pariſh, read Divine Service in his though not
Church, and ſerve the Cure thereof duly, the Leaſe made by him is the faid Pa-
not void upon the Account of Non-reſidence, for then he ſhould have riſh, &c.
been abſent for Eighty Days together at one 'Time in the Year. Paſch.
9 Jac. Sheppard v. Twoulſie. i Bulft. 111. Yet. before this Time it
was adjudged upon ſpecial Verdict found, that a Parfon being abſent for
ſeveral Quarters in One Year, Sixty Days in every Quarter, that this
was ſuch an Abſence as would make void his Leaſe. 5 Fac. B. R.
Jennings v. Haithwaite. Yelverton 106, fame Cafe. i Brownlow 208.
So it is ſaid to be adjudged, that if the Parfon be abſent at ſeveral
Times, viz. 'Ten Days at one Time, and at other Times in the ſame
Year for above the Space of Eighty Days, that thereby he is non-reſi-
dent within the Statute. Sidner and Calvert's Cafe. Noy 116. And
note, That this Statute of 13 Eliz. C. 20, is a general Law, as was
adjudged in the ſaid Caſe of Jennings and Haithwaite.
If a Parſon or Vicar hath, with the Conſent of his Patron and Or- If after the
dinary, made a Leaſe for Twenty-one Years or Three Lives of their Leaſe by
Benefices, or Part thereof, and then the Benefice doth become void by the Parſon
Death, in this Caſe the Leaſe is not made void by this Statute ; by dies, this
Shute and Gawdy v. Wray and Clinch. Mich. 30 & 31 Eliz. Mote v.
Hales. Moor 270. But Croke, who alſo Reports this Cafe, faith, that Non-reſi-
it was adjudged that this Leaſe was void by the Death of the Incum- dence.
bent. 3 Croke 123. And my Lord Chief Juſtice Hale faith, that this
Cafe was adjudged according as 'tis reported by Croke, by the Opinion
of Three Judges againſt One; but faith farther, that it was a hard
Opinion, and that in 38 Eliz. B. R. Moor 448, the very Point was
adjudged contrary. Irin. 25 Car. 2. B. R. Baily v. Murrin. i Ven-
tris 245, fame Cafe. 3 Keb. 107, 194, and i Lev. 61, where this ve-
ry
Point is ſolemnly ſettled and adjudged contrary to the Caſe re-
ported by Croke, viz. that Death doth not make ſuch a Non-reſidence
as ſhould avoid a Leaſe, for that the Intention of the Statute was to That ſuch
oblige the Incumbents to Reſidence: Firſt, By impoſing a Forfeiture
upon them of a Year's Value of their Benefice, if they did not reſide. Leafe.
Secondly, By making their Leafes void. And 'tis plain the Statute
meant a wilful Negligence, becauſe it ſays, The Party ſo offending,
&c. Beſides, the Statute 14 Eliz. that allows Leaſes of Houſes, &c.
in Market-Towns for Forty Years, would be of no Effect, if Death
ſhould be interpreted a Non-reſidence ; and the Confirmation of Pa-
tron and Ordinary would be to no Purpoſe : Beſide, one cannot be ſaid
abſent who is not in Being, for there is no ſuch Perſon; and 'tis plain,
the Statute intended fuch Non-reſidence as might be made by one that
remains lucumbent, by reaſon of the Forfeitures therein contained
for immediately upon the Death of the Incumbent, all the Profits
of
Confent, C.
ſhall be ac-
counted
a
Death ſhall
not avoid the
ز
A a a a
458
The Clergy-Man's Law: Or, Chap. XLIII.
Marcus
Lea'es.
But if ſuch
is void by
Common
Law.
14 Eliz.
of the Living, except for the Supply of the Cure in the Vacation, do
belong to the Succeffor, How then ſhall the Statute be executed by
the Biſhop after a Lcafe made, who is to ſequefter them for the Uſe
of the Poor upon a Non-reſidence againſt the ſaid Statute? And if
Death be a Non-reſidence within the Meaning of that Statute, in vain
are Parſons and Vicars permitted to leafe Lands, &c. uſually let for
One and twenty Years or Three Lives, with the Confent or Confirma-
tion of their Patrons and Ordinaries.
But if a Parfon doth let a Leaſe for Years or Lives which is not
Leafe is not confirmed by tlıc Patron and Ordinary, this Leaſe is void at the Death
it
of the Parſon, not by the Statute of 13 Eliz. c. 20, but by the Death,
at Common Law; becauſe, as Dodderidge and Haughton faid, it was
not intended by that Statute to make Leafes void that were void be-
fore at Common Law ; fo that if ſuch Leaſe be made for a Term
of Years abſolutely, without ſaying, (if the Parſon ſhould ſo long
live,] and the Term is not expired at the Parſon's Death, the Leſfee
may recover Damages in an Action of Covenant againſt the Execu-
tors of the Parſon for not enjoying his Term; and if they plead the
Statute of 14 Eliz. to make the Leaſe and Covenants void, it will
nothing avail them. The Law is the fame, if during ſuch Leaſe the
Church doth become void by Reſignation or Deprivation. Trin. 14 Fac
B. R. Rudge v. Thomas. 3 Bulſt. 202. i Roll's Rep. 403. Paſch. 42
Eliz. B. Ř. Coſtard v. Windet. 3 Cro. 775, fame Caſe. Moor 606.
So if a Parfon doth make a Leafe for a certain Number of Years, if
he ſo long live, he doth thereby take upon himſelf that he will do no
Act by which the Leaſe ſhall be determined, but only by his Death ;
therefore if he doth reſign, or otherwiſe void the Living, an Action of
Covenant will lie againſt him ; but if this Clauſe be added, [And
sall ſo long continue Parſon] then he may reſign without Danger ;
by Haughton. Trin. 11 Fać. Wheeler v. Heyden. Brownlow and Goulds-
borough. i Part. i 25.
Though the Statute of 13 Eliz. c. 20, doth allow a Parſon or Vicar,
demiſes over that hath Two Bethefices, to demiſe the one of them, upon which he
ſhall not be ordinarily reſident, to his Curate ; yet it is thought from
although that he be not abfent above Forty Days in any. One Year,
yet the Incumbent being abfent above Eighty Days in the fame Year,
the Leaſe is thereby void: For it is enacted, That all Leaſes, Bonds,
Promiſes, and Covenants, of and concerning Benefices and Eccle-
fiaftical Livings with Cure to be made by any Curate, fall be of no
other nou better force, Ualidity od Continuance, than if the ſame had
been niade by toe beneficed Perſon himſelf, that demiſed of fhail demiſe
the came to the Curate. Stat. 14 Eliz. cap. 11. Yet by Tanfield, when
a. Parſon leafeth to his Curate, who leafeth over, the Statute doth not
make the Leaſe void by any Abſence of the Parfon, but of the
Curate by Forty Days, (but of this I doubt) otherwiſe the Deſign of the
Statute might be calily fruſtrated; which was, that he that ſerved the
Cure ſhould be the Occupier of the Glebe, and Tithes belonging to
the Church, and none other. · And I conceive, that the Curate to
whom the Parſon may make a Leaſe of his Glebe or Tithes (being
abfent from his Benefice by above Eighty Days) muſt be a Curate le-
gaily admitted by the Ordinary of the Place, according to the Laws
of the Land'; for otherwiſe he is no Curate, although he ſerves the
Cure, and is reſident: Therefore, by ſuch Leafe made to him the
Tithes
If a Carate
his Leafc.
5
I
Chap. XLIII. The Complete Incumbent.
459
frares.
and Tithes
any
ز
Tithes or Glebe then will be forfeited upon the Incumbent's Abfence; Parſons
and if they ſhould be ſequeſtred in this Cafe according to the Statute,
the Parſon cannot plead that they are let to his Curate, becauſe he is
no Curate in Law, and his having the Cure there is an Offence againſt
the Law, of which it is not reaſonable that either the Incumbent or
Curate ſhould take Advantage.
Note, That a Parfonage may be a Manor, by Meed and Windham That a Par:
Juſtices; as if before the Statute of Dzia Emptores terrarum, the fonage, may
be a ;
Parfon with the Patron and Ordinary did grant Parcel of the Glebe to
divers Perſons, to hold of the Parfon by divers Services, the ſame
makes the Parſonage a Manor. Paſch. 22 Eliz. C. B. Hughes Abr.
pag. 4.. And if the fame be a Copyhold Manor, then notwithſtand-
ing all the Statutes before rehearſed, Parſons and Vicars, as well as all
other Eccleſiaſtical Perſons, may grant Copies for Life, Lives, in Tail,
or in Fee, according to the Cuſtom of the Manor ; for the Copyholder
doth not derive his Eſtate out of the Eſtate or Intereſt of the Lord only,
but from the Cuſtom, and is ſaid to be in by the Cuſtom without any
Res
gard to the Intereſt or Perſon of the Grantor: 4 Co. 23; 24. And theſe
Grants by Copy are good without the Confirmation of the Patronand Ordi-
nary,and are not voided by the Non-reſidence or Death, &c. of the Parfon.
Neither do any of the Statutes aforeſaid extend or relate to Recto- Re&ories
ries and Tithes that are impropriated and become Lay-Fee, and re-
impropri-
main in the Hands of Lay-Men, but they may do with them as with
ated, and
other Inheritance whereof they are ſeized; but Appropriations in Lay-Fee.
the Hands of Biſhops, Colleges, or other Eccleſiaſtical Perfons, are li-
able to the aforeſaid Statutes and Rules, even as other Inheritances
whereof they are ſeiſed; and ſo are Impropriatiors, if by Preſentation,
&c. the Vicarages be reſtored to the Church out of which it was co-
dowed.
If an Information be upon the Statute of 13 Elizi ċi 20, or if that Information,
Statute be pleaded to avoid a Leaſe, Bond, or Covenant for the En- &c. muſt ſay,
joyment thereof, it ought to be ſaid, that the Incumbent was abfent abſent Eigh-
Eighty Days ultra ; for to ſay Eighty Days, and nothing more, is ultra in a
not ſufficient within this Statute, which ſays above Eighty Days, and Year.
he may be abſent Eighty, and come again in the Night of the Eigh-
tieth Day, and if ſo, is no Offender within this Statute. Hill.
30 Eliz.
B. R. Goſnal v. Kindlemarſ. 3 Cro. 88. So it muſt be faid, that he
was abſent Eighty Days & ultra in a Year, or it will not be good.
Trin. 14 7ac. B. R. Řudge v. Thomas. 3 Bulſtr. 202. And it's fa- Nute,
feſt alſo to ſay, (if the Caſe will bear it) that he was abſent above
Eighty Days together, by reaſon of the Differences in the Caſes before
fet down. "And it muſt be ſhewed that the Incumbent was voluntari-
ly abfent ; for if he be abſent, or did not ſerve the Cure by reaſon of
Sickneſs, Suſpenſion, or becauſe he was inhibited by the Ordinary from
ſerving the Cure, or was ejected by any out of the Parfonage Houſe, or up-
on the Account of other Reſtraint, he is not abſent in the Meaning of
this Statute. Trin. 30 El. Will. Collins v. Edw. Vaughan. 3 Cro. 100.
Hill. 38 Eliz. Robbins v. Prince Moor 438. Alſo Care muſt be Statutes mut
taken that the Statutes be truly recited, as well as the Abſence fully be truly re-
alledged ; for when the Statute of 13 Eliz. was recited with this cited.
Clauſe therein, Tam dir (where the Words are tam cito) quam, &c.
aut aliqua pars inde veniret ad aliquam pollefionem vel ufum inhibi-
tum vel, &c. which Words by the Statute of 14 Eliz. C. 11, as hath
been ſhowed, are repealed and appointed to be omitted. Judgment
Was given againſt the Party that did fo miſrecite, &c. Mich. 38 &
Aaaa 2
39
460
,
The Clergy-Man's Law: Or, Chap. XLIII,
Marcons
Eleafes.
General Law.
14 Eliz. c. 11.
Bonds and
Covenants.
39 Eliz. B. R. Henry Earl of Lincoln v. Hoskins. 3 Cro. 490. And
it is ſaid, that this statute of 13 Eliz. c. 20, is a general Law. 4 Co.
30 Eliza 20. a 120. b. Dumpor's Cafe. Įrin. 5 Jac. B. R. Jenning and Harthwait.
2 Roll's Abr. 465.
But Evaſions having been found out to fruſtrate the Deſign of the afore-
Againſt Eva- faid Statute of 13 Eliz. cap. 20.
It was afterwards enacted, That
fions madeby
where fundirevil-diſpoſed Perſons have defrauded the true meaning
of the Statute made in the
laid Chirteenth Year, by Bonds and to
venants, of (uffering other perſons to enjoy Ecclefiaftical Livings,
and the fruits thereof, for that ſuch Bonds and Covenants are not
in Law taken to be Leales, altho indeed they amount to as much :
Be it therefore enaked, Ebat all Bonds, Contracts, Promiſes, and
Covenants hereafter to be made fou ſuffering or permitting any per
ſon to enjoy any Benefice of Eccleñaftical Promotion with Cure, 02
to take Profits 02 Fruits thereof, other than luch Bonds and cover
nants as ſhall be made for afluxance of any Leaſe beretofore made,
ſhall be to all Intents and purpoſes adjudged of fuch force and Ua
lidity, and not otherwiſe, as Leaſes by the ſame perfons made of
(leh Benefices and Ecclefiaftical Promotions with Eure. Stat. 14
Eliz. cap. 11.
And 43 Eliz. And áfter theſe Statutes of 3 Eliz. C. 20, and 14 Eliz. C. II, this
6.2. Again Clauſe following by Way of Addition thereunto was enacted by Stat.
Judgments.
43. Eliz. c.9. (That all Judgments hereafter to be had for the Jn.
tent to bave and enjoy any Leaſe contrary to the faid Statutes, az
any of them, fhall be deemed poid, in ſuch sogt, as Bonds and
Covenants are appointed to be poid, which are made for that Pur:
pole.)
Debt upon an Accordingly, when a Clerk did enter into an Obligation, the Con-
Obligation to dition of which was, That he being preſented, inſtituted and inducted
refign upon
Rcqueft.
to a Benefice then yoid, ſhould upon Requeſt of the Patron reſign ;
and afterwards did make a Leafe to the Patron, which by the Clerk's
Abſence did become void, and then upon Requeſt by the Patron to
the Clerk to reſign, and he refuſing, the Patron brought an Action of
Debt upon the Bond, unto which the Clerk pleaded the Statutes of
13 & 14 Eliz. aforeſaid, and that after his Induction he did let the
Leaſe to his Patron the plaintiff, and then was abſent above Eighty
Days in one Year; and averred, that the Obligation was made for the
enjoying of the Benefice let by the ſaid Leafe, and to the Intent to
compel him not to avoid the Leaſe by Abfence, for fear of being re-
quired to reſign, and demanded Judgment, &c. And by the whole
Court (the Plaintiff demurring) the Plca was held good, and the
Averment to be very apt, becauſe Obligation being made generally to
reſign upon Requeſt
, might be averred to be for this particular Pur-
poſe, and ſo void. Mich. 43 & 44 Eliz. Web v. Hargrave. Moor
Plea by Par If the Parfon's Leffee doth afſign over to another what the Parfon
fons Leffec hath leț to him, and the Parfon be abfent above Eighty Days in the
aſligning 0-.
fame Year, the Lefſee alſo may plead the Statutes of 13 & 14 Eliz.
for the avoiding of his Aſſignment of what the Parſon had granted to
him. Paſch. 7 Jac. B: R. Shepherd v. Iwoulſey. i Bulft. 111.
As to the Statutes of 14 El..CIT, & 43 Eliz. c. 9, this is a certain
Stat. 14 El. Rule, That where Leaſes are made void by the Statute of 13 Eliz.
!!, & 43 there all Bonds, Covenants, and Judgments for the enjoying ſuch Lea-
Eliz.c.9,C
ſes are made void by theſc Statutes; but if the Leaſes be void at
641.
ver.
Rule upon
ز
2
Com-
Chap. XLIII. The Complete Incumbent.
461
Leares.
Common Law, and not by the Statute of 13 Eliz. there Bonds and marlons
Covenants for the enjoying of ſuch Leaſes are not made void by the
Statute of 14 El. nor Judgments by 43 El. Therefore if the Parfon
covenants that another ſhall enjoy his Benefice, or Part thereof, not u-
fually let, for Seven Years abſolutely, not ſaying, [if he ſo long live
and continue Incumbent ; ] and before the Expiration of the Term
doth reſign his Benefice, and ſo becomes abſent above Eighty Days,
and doth not ſerve the Cure ; in this Caſe, although the Leaſe be void,
yet an Action of Covenant well lies for the Leffet upon the Covenants
in the Leafe ; and the Reaſon is, that though the Incumbent becomes
abſent, and ceaſeth to ſerye the Cure, the Leaſe is not voided thereby,
but by his Reſignation, and conſequently the Leafe became void by the Wherc the
Common Law at the fame Inſtant that the Benefice was void by the Leaſe be-
Reſignation, and before his Abſence had commenced, and by Dodde- at Common
deridge and Haughton, the Statute of 13 & 14 Eliz. do not meddle Law by Re-
with Aſſurances at the Common Law, nor were intended to make any
ſignatiolle
Leaſes void, which were void at Common Law; to which Cokë agreed.
Trin. 14 Jac. B. R. Rudge v. Thomas. 1 Roll's Rep. 403, fame Caſe.
3 Bult. 202. But if a Parfon doth let his Rectory for 'Three Years,
and covenants that the Leſſee ſhall have and enjoy it during the faid
Term without Expulſion, or any Thing done, or to be done, by the
Leſſor, and is alfo bound in an Obligation to the Leſſee to perform the
faid Covenants, and afterwards for not reading the Articles is deprived
ipſo fatto by the Statute of 13 El. fo that the Leaſe becomes void
thereby, yet the Obligation is not forfeited, for that the Leſſee was
not ouſted by any Act done by the Leffor, but rather for Non-feaſance,
and fo out of the Compafs of the Covenant aforefaid, per Curiam.
Paſch. 19 El C. B. 4 Leon. Caſe 104. But otherwiſe it would have
been, If the Leſſor had covenanted not to omit the doing of any Thing
whcreby the Leaſe ſhall become void. So by Coke, if he be bound by
his Obligation to make ſuch a Leafe, this is good, as it was adjudged
in the Dean and Chapter of Norwich's Cafe, to which Dodderidge
and Haughton agreed. Trin. 14. Jac. B. R. Rudge v. Thomas. 3
Bulſtr. 202.
When Leafes, Bonds, &c. are voided by reaſon of the aforeſaid From what
Statutes upon the Account of Abſence, and not ſerving the Cure of Time ſuch
the Benefice let, for above Eighty Days, we muſt not underſtand ſuch Bonds are
Leaſes and Bonds, buc. to be void ab initio, but only from the Time void.
that ſuch Abfence of Eighty Days ſhall be compleated; for the Words
of the Statute of 13 El. c. 20, are, Shall not endure any longer, but
while the Lellofhall be ordinarily Reüdent (ſo that fo long it ſhall
endure) as he Cerves the Cure of ſuch Benefice without abſence above
Fourſcore Days in Dne year, but that every tuch Leale immediately
upon ſuch abčence Thail ceaſe and bé void therefore, till ſuch Ab- Action for
ſence of above Eighty Days be accompliſhed, the Leafe is good and Covenant
in Being; accordingly it háth been adjudged, that if ſuch Leaſe by In- broken be-
denture be made, containing Covenants on the Leſſor and Leſſee's Part, of 80 Days
and after, by Abfence for above Eighty Days, both the Leaſe and Co- Abſence.
venants do become void; yet an "Action of Covenant doth well lic for
the Leffor or Leſſee, for any Covenant broke before the End of the
Eighty Days Abſence. 26 Eliz. Wallis v. Cox. 3 Cro. 78. Therefore,
if in ſuch Cafe an Action of Covenant be brought, the Defendant
muſt not only picad the Statutcs which make the Lcafe and Covenants
void,
462
• The Clergy-Man's Law : Or, Chap. XLIV.
Conärmas void, but muſt alſo plead the Performance of Covenants to the Time
Tion of Leas of the Eighty Days Abſence expired. Mich. 22 and 23 Eliz. Dyer
u 372, 373.
Pix.
CHAP. XLIV.
!
Leaſes by Ecclefiaftical Perſons by whom to
be confirmed, and what Confirmations are
good. 'Of Variances in Leaſes, &c. and
miſnaming Corporations.
What Rules
::le to be ob-
Hrved with
refpe&t to
IT
Läw.
OS.
T hath hitherto been ſhewed what Rules Eccleſiaſtical Perſons are
to obſerve in making of Leaſes, eſpecially to bind their Succeſſors,
viz. with reſpect to the aforeſaid Statutes : It follows to be fhewed,
The Cominon what Rules before the making of the ſaid Statutes, and notwithſtand-
ing the ſaid Statutes, are at this Day to be obſerved by them with
reſpect to the Common Law. Firft then, In many Caſes the Conſent
and Confirmation of others muſt be obtained to make a Leafe good
Corporati- againſt the Succeſſor. But when we ſpeak of the Neceſſity of Confir-
mation, we ſpeak only in the Caſe of fole Corporations; for Corpora-
tions aggregate of many, as Deans and Chapters, Maſters and Fellows
of a College, may by the Common Law make any Grant of, or out
of their poffeffions which they hold in common, although the Dean,
doc. were preſentable; but no fole Corporation had ever that Liberty
allowed them by the Common Law. The Prudence of the Law
thinking it not convenient to truſt any ſingle Perſon alone with the
ſole Diſpoſition of his Eftate which he held in the Right of his Church,
and therefore ſubſtituted fone whoſe Affent and Confirmation is of
Neceſſity to the making good of all Grants to be made by them. 3 Co.
Corporations 75. And theſe Corporations as to this purpoſe are of Two Sorts :
Firſt, Such who have the whole Eſtate and Right of the Land in
them, as Biſhops, who might at the Common Law, before the reſtrain-
ing Statute of 1 Eliz. was made, have granted any manner of Eſtate
with the Confirmation of the Dean and Chapter, which Confirmation
was to be made, Firſt, by Deed in the Life-time of the Biſhop; and
the Confirmation in this Caſe is but a Confirmation of the Deed, or
as an Aſſent given to the Biſhop to make ſuch Deed, and not of the
Eſtate, for there is a Diverſity as to that ; for if a Diſſeiſor doth make
a Charter of Feoffment to A. with a Letter of Attorney to give Sci-
fin, and before Seiſin given the Diffeiſee doth confirm the Eſtate of A.
or the Deed made to A. this is clearly void, though Livery be made
after; for this muſt cnure as a Confirmation of the Eſtate, which
cannot be good before the Eſtate paſſed, which it did not before Li-
very made. But if a Biſhop makes a Charter of Fcoffment with a
Letter of Attorney, and the Dean and Chapter before Livery do con-
firm the Deed, this is a good Confumation, and the Livery made af-
uf Two Sorts.
ز
2
ter
tion of Leas
mon Law
any
Ordinary both muſt give their Confent, wherein is to be noted (as is
agrec
to do
Chap. XLIV. The Complete Incumbent: 463
ter is good. The fame Law is of a Confirmation of a Deed of Grant Cônkrnja-
of a Reverſion before Attornment. : Inſtit: 300, 301. See more fully feston
of this Matter afterwards in this Chapter.
But out of this Law of Confirmations at the Common Law was ex: Exceptions
cepted, That a Biſhop might grant Copyhold Eſtates in Fee, in 'Tail, at the Com-
or for Life or Lives, according to the Cuſtom of the Màndr, without
Confirmation by the Dean and Chapter ; and the fame Law was
of Parſons, Prebends, Vicars, &c. without the Conferit of their Patrơn,
fuc. and the Ordinary: 4 Co: 22.
The Second Sort of föle Corporations are ſuch which have not the
abfolute Fee in them; as Parſons, Prebends, Vicars, and the like, and
to their Grants, Leafes, ci at the Cominon Law, the Patron and
faid of the Biſhop) that tlie Confirmation is but a meer Affent to the
Grant: And therefore if the Patron and Ordinary give Licence by Deed
to the Parſon to grant a Rent-Charge out of the Glebe, and the Par-
fon doth it, this is good and binding to the Succeſſor, and yet is not a
Confirmation ſubſequent, but a Licence precedent. Broke's Novel
Caſes 201. 7. H. 4. 15. Secondly, The Ordinary alone without the
or Confirmationi ſubſequent; for the Dean and Chapter have nothing
of the Biſhop. i Inft. fol. 300. b. Though before the Statute of 32
H. 8. c. 28, was made; no fole Corporation could have made any
Leaſe or Grant which ſhould have bound the Succeſſor without Con-
firmation of thoſe Quorum Intereſt ; yet by that Statute, Biſhops,
Dcans, Archdeacons, Prebends, Chancellors of Cliurches, Treaſurers,
Precenitors, and all other ſuch like fole Corporations, (Parſons and Vi-
cars only excepted) are enabled to leaſe their Poffefſions for Twenty-
one Years or Three Lives without the Confirmation of any; but then
their Leaſes muſt be made purſuant to the Eight Rules before remem-
bred in Chap: 42, or Confirmation is neceſſary notwithſtanding the faid
Statute. Trin: il Fac: C. B. the Biſhop of Salisbury's Cafe. 1o Co. 60.
Yet it is to be noted, That if a Bifhop, or other Ecclefiaftical Perfon, Where if a
enabled to grant without Confirmation by the Statute of 32 H. 8. Perſon ena-
c. 28, doth make a Leaſe for longer Term than Twenty-one Years blied to grant
or Three Lives; or Two Leafes, the one for Twefity-one Years, the firmation
other for Three Lives of the fame Eftate; or if the Leaſe be not doth not ob-
made to hold from the Time of the making, båt from the Day of
the making thereof; or that the old accuſtomed yearly Rent or more tion will not
be not referved, and made payable yearly during the Term of the bind the
faid Leaſe, and by cofifequence be not made of Things uſually let;
or of Things out of which a yearly Rent may be reſerved. Confir-
mation will not make ſuch Lcafe good to bind the Succeſſor, by rea-
fon of the reſtraining Statutes of i Eliz. C. 19. 13 Eliz. c. 1o. And
therefore, as to fuch who are within the Statute of 32 H. 8, the Ufé
of Confirmation feems to be chiefly, if not only this, That if the
Thing demiſed be not all in Poffeffion, or that the old Leaſe be not ex-
pired, or furrrndred within One Year after the making of the new
Leaſe, ſuch new Leafe muft be confirmed, or the Succeffor will not
be bound thereby. Trin. 11 Jac. C. B. the Biſhop of Salisbury's Cafe,
io Co. 60. And that in ſuch Cafes Confirmation is ſtill of Uſe and
Neceſity appears, becauſe Biſhops before the ift of Eliz. and other Ec-
cleſiaſtical Perſons before the izth & 18th of Eliz, might have made
ſerve Rules;
Confirma-
Succeffor.
concur
464
The Clergy-Man's Law: Or, Chap. XLIV.
ز
mation
may
currcnt Lea-
ſes.
Confirma-
tion muſt be
of the Leaſes
Confirnia concurrent Leaſes with Confirmation ; and by the Statute of 1 Eliz.
fien of Lea- Biſhops are not reſtrained from granting Leaſes in Reverſion, or con-
current Leaſes at any 'Time after the firſt Leaſe made ; nor are other
Eccleſiaſtical Perſons reſtrained from granting like Leaſes; by the Sta-
tute of
13 El. c. 10, or by the Statute of 18 El. c. 11. If a former
Leaſe for Years be furrendred, or ended within Three Years next after
the making of ſuch new Leaſe ; and therefore though the Statute of
32
H. 8, doth not enable them to leaſe without Confirmation, unleſs
the old Leaſe be expired, ſurrendred, avoided, or ended within One
Year next after the making of a new Leaſe ; yet with Confirmation a
Biſhop or other Ecclefiaftical ſole Corporation may make concurrent
,
with Confira Leafes, Reſpect being had to the aforeſaid Statutes, even as Corpora-
tions aggregate may do without Confirmation. Trin. 21 Eliz. Fox v.
make con- Collier. Moor 107. But if an ancient Office be by a Biſhop granted to
one, although with no more than the ancient Fee, it ſhall not bind
his Succeſſor, if it be not confirmed by the Dean and Chapter; for
ſuch Grants remain as they were at the Common Law, as was ad-
judged in the Biſhop of Salisbury's Cafe. Trin. ii Jac. C. B. 10
Coke 60.
But as for Parſons and Vicars, they being excepted out of the Sta-
tute of 32 H. 8. Confirmation is neceſſary in all Caſes, if any Leafe
or Grants of or Grant be made by them to bind their Succeſſors. And that the Confi-
Parſons and mation may be ſuch as may ſerve its End, it muſt be made by proper
Vicars, &c. Perſons, and all muſt concur who have Intereſt in the Thing of which
the Grant is made: Accordingly the Grant of an Archbiſhop or Biſhop
is to be confirmed (when Confirmation is neceſſary) by the reſpective
Dean and Chapter; and if there be Two Deans and Chapters, both of
them are to confirm all Grants, or they will be void againſt the Succef-
fors, for both are but one in reſpect of the Biſhop, if the Biſhop is cho-
ſen by both ; the Biſhop of Coventry, and Lichfield's Cafe. Statham
Abr. tit. Allize. Co. 1 Inft
. 301. a. Trin. 8 Fać. 12 Go. 71. But if
Two Biſhopricks that were originally diſtinct be by lawful Authority
united, and the Uſage hath been Time whereof, &c. ſince the Union,
that the ſeveral Deans and Chapters have made Confirmations ſeveral-
ly, that is, each Dean and Chapter of Grants made of the Things be-
longing to their Biſhoprick before the Union, the Union not being ex-
tant, it ſhall be intended that the Union was made eſpecially, and in
ſuch Manner, that notwithſtanding the fame, Eſtates made ſhall be
ſeverally confirmed as before that Union, and ſuch Confirmations ſhall
then be good. Trin. 8 Jac. 12 Co. p. 71. So if there have been Two
Deans and Chapters belonging to One Biſhoprick, who have both ufed
to confirm the Grants of their Biſhop, and One Dean and Chapter
hath ſurrendred their Church and Poſſeſſions to the King, and then
the Biſhop doth grant Lands with the Confirmation only of the re-
maining Dean and Chapter, this Grant binds his Succeſſors; yea, and
although after ſuch Confirmation, the Dean and Chapter that had
ſurrendred, and was thereby diſcharged, be again erected, as was held
by the greater Part of the Juſtices in Ireland, and by Five Juſtices in
England, who certified their Opinion to be ſo into Ireland. Paſch.
11 Eliz. Dyer 282. b. i Inft. 301. a. But if a Biſhop hath no Dean
and Chapter, his Grants are to be confirmed by the Clergy of his
Diocefc. Trin. 2 Jac, in the Exchequer, the King v. Sir Ambroſe
Forth. Davis. f. i.
I
Whenever
.
Chap. XLIV. The Complete Incumbent.
465
...
How the
Grants.
Whenever a Dean and Chapter doth confirm, that the Confirma- Confirma:
tion of Lea:
tion may be good, the Dean muſt join with the Chapter, and not one fes.
who is Deputy or Sub-Dean only, who is a Stranger, and not one of
the Chapter, for ſuch Perſon is uncapable of being a Dean Subſtitute, Dean muſt
or Proctor ; and alſo it's generally faid, that the Common Law will join with the
not ſuffer that the Members of a Corporation ſhould give their Aflents Chapter
by Proctors or Subſtitutes, for which is cited 11 H. 4. fol. 64, where
upon a Compoſition for Tithes a Parfon granted an Annuity to the
Abbey of Battel, which Grant was confirmed by the Biſhop and Dean
and Chapter being Patrons; but it appears by the Deed of Confirma-
tion, that the Dean was abfent, and did not put his Scal thereto, but
that the Chantor who was his Commiſſary did it for him; and there
it was held, that though the Dean might have a Deputy to exerciſe
his Spiritual Juriſdiction, yet that ſuch Deputy cannot charge the Pof-
ſeſſion of the Church. Paſch. 5 Jac. B. Å in Pemerton and Allen's
Cafe. Davis. fol. 47. 11 H. 4. 84. Latch 251. And when the Cafe Q. If by the
was,
that a Leaſe was made by the Free Chapel and College of Wind- Statutes of
for under the Common Seal, yet the Dean or Warden himſelf was Deputy Dean
not Party to the Leaſe, but one that was his Deputy in his Abſence ; may confirm
and upon Suit to avoid the Leaſe, a Statute of the College was ſhew-
ed for the Authority of the Deputy to exerciſe and perform the Office
of the Dean in all Things in Perſón' e Collegium, &c. yet the Judges
did hold, that the Confirmation was not good by the Deputy, for that
he had no Authority to confirm this Leafe by the College Statute ſhew-
ed; and this was chiefly upon the Expoſition of the Word Collegium, Collegiam.
for thereby all the Poffeffions of the College are not to be underſtood,
but only the Site and Circuit of the College or Place of its Situa-
tion. Mich. 6 and 7 Eliz. Dyer 233. b. From which Caſe it ſeems
to follow, that if by the Statutes of a Church the Deputy Dean may
confirm Grants, and join in the making of Leaſes, as if the Dean him-
ſelf was preſent and did the fame, that ſuch Confirmation and Grants
Thall be good.
As a Deputy Dean generally ſpeaking cannot confirm, fo neither Generally *
can he that is but a meer Commendatory Dean, viz. a Dean by Reci- Commenda-
pere in Commendam, although that he may with the Chapter chooſe a tory Dean
Biſhop, becauſe that he is but Depofitarius, yet ſuch Commendatory firm.
Dean may be ſued by that Name, and may take the Profits, and exer-
cife the Juriſdi&ion, and yet is not a Dean compleat. See 27 H. 8. 15.
Hill. 22 7ac. B. R. Evans and Kiffin v. Alfmith. Noy 93, and Pal-
mer 460, 480. Latch 237, 250, 251. But if a Dean be elected Biſhop,
and before his Confecration doth obtain Diſpenſation to hold his Deane-
ry in Commendam, fuch Dean may well confirm, &c. And if he be
tranſlated to another Biſhoprick, and after his Election, and before
Confirmation, doth obtain Difpenfation to hold the fame Deanery in
Cominendam with his ſecond Biſhoprick, his old Title remains, and
Confirmations and other Acts done by him as Dean are as good in
Law, as if he had never been made Biſhop. Trin. 3. Jac. B. R. Evans
and Kiffin v. Alſmith. Palmer 460. Jones 158. Trin. 2 Car. Thorn-
borough's Caſe. Bendlows 187. The Law I ſuppoſe to be the ſame as
to Commendatory Biſhops in both Cafes ; and when there is a meer
Commendatory Biſhop of a Dioceſe, thé Archbiſhop confirms. But
Quare, Who confirms the Biſhop's Grants and Leaſes when there is a
meer Commendatory Dean, if not the Clergy of the Dioceſe, as in the
Cafe when there is no Dean and Chapter?
Вььь
Though
cannot con:
6
466 The Clergy-Man's Law: Or, Chap. XLIV.
Stat. 33 H. 3. Purpoſe it hath been enacted as followcth: albeit that by the Common
Though one that is Dean be Dean de jure as well as de facto, yet
foon of deas neither he, nor any other of the Corporation, hath a negative Voice;
but Corfirmations and other Grants are good, if made by the major
Where nei- Part of the whole Corporation, for the Dean and major part of the
or other hath Corporation make the Corporation, though the reſt diffent.
a negative 8. 29. 21 E. 4. 27. 15. E. 4. 2. a. 9. H. 6. 32.
ConGrmis
thier Dean
14
H.
And for this
Voice.
to 27.
Laws of this Realm of England, all aſlents, Election, Ölants and
Leafes had, made and granted by the Dean, Warden, Provoſt, 99a
fer, Preſident, oj other Governour of any Cathedjal Church, Hoſpi-
tal, College, of other cozpozation, by whatſoever Name they be in.
corporate or founded, with the afient and Conſent of the inoze az
greater Part of their Chapter, Fellows 02 Baethlen of ſuch Corpo.
ration, having Uoices of allent thereunta, be as good and effectual
in the Law to the Hrantees and Lefſees of the ſame, as if the Refl-
due of the whole number of ſuch Chapter, Fellows and Brethren of
ſuch Coipagatian, having Moices of affent bad thereunto conſented
and agreed; yet the ſaid Common Laws notwithſtanding divers Foun.
ders of ſuch Deaneries, bolpitals, Colleges and Co2pozations with.
in the Caid Realm, have upon the foundation and Eftablillyment of
the Came Deaneries, poſpitals, Colleges, and other Corporations,
eſtablified and made amongſt other their peculiar Aas, lacal Statutes
and Didinances, that if any one of ſuch Corpolation, having power
DP Authority to aflent og diſallent, ſhould and would deny any fuch
Quant al Ozants, that then no fucb Leaſe, Election, al Giants, fhould
ve had, granted or leaſed; and for the perfuqmance of the came, rue.
rp Perſon having Power of artent to the fame, baus been and be daily
thereunto fwon, and ſo the Relidule may not proceed to the Pero
feâion of ſuch Elections, Grants, and Leales, according to the Courſe
of the Coniman Laws of this Realm, unleſs they could incur the
Danger of Perjury: for the avoiding whereof, and for the dute Ere:
cution of the Common Law univerſally within this Realm, ond query
Place in ane Confozmity of Reaſon to be uſed ; Be it. oldained, efla-
bilmhed and enacted by the Authodity of this preſent parliament, Chat
all and every peculiar ga, Dider, Rule and Etatute beretofore made,
oz bereafter to be made, by any founder al founders of any popis
tal, College, Deanery, of other colpazation, at ok upon the fann-
dation of any fucb baſpital, College, Deanery, 02 Copozati011,
whereby the Grant, Leale, Gift, of Election of the Havernouc 02 RU.
ler of luch palpitat, Callege, Deanery, or other Coporation, with
the Affent of the moze Part of luch of the ſame bafpt al, College,
Deanery, od Corporation, as bave od fhall have Uoice of antent to the
ſame, at the Time of ſuch @jant, Leafe, Gift, 02 Election hereafter
to be made, mould be in any wiſe hindjed 02 let by any one 02 MOL
being the leffer cumber of ſuch Cajpogatjan, contrary to the foun,
Dider and Courſe of the Compion Law of this Realm of England,
ſhall be from benceføith clearly fruſtrate, void, and of none Effect.
and that all Daths heretofore taken by any perſon H Perføns af fueb
Hoſpital, College, Deanery, and ather Cozpocation, thalt be, fox and
concerning the Dbſervance of any ſuch Dider, Efatute, of Rule,
deemed void and of none Effe&. And that from bencefoxth 110
Banner of Perſon or perſons of any ſuch Wolpital, College, Deanes
ry, or other Co poration, ſhall be in any wile compelled to take an
Duth foz the iberving of any ſuch Dider, Efatute, 02 Rule, upon
the pain of every perſon giving fucb Dath, to fo{feit for every Time
.2
2
i
ſes.
Dean,
make their Acts in any other place. ſo it be á Place certain. Şce 21 E.
Chap. XLIV. The Complete Incumbert. 467
fo offending Five Polind ; the one Moiety thereof to be to the Ure Confirma-
of our Sovereign Lojd the King, and the other hoiety thereof to tion of Lea-
any
of the King's Subjects which wilt lue for the ſame in any of the
King's Courts of Record, by Ation of Debt, Bill, Plaint, for
mation, oz othet wife, wherein the Defentant fhall not be admitted to
wate his Lat, noz any Protetton no.. Endign, O2 any other dilatory
Plea admitted by allowed. Stat. 33
H. 8. cap. 27.
Though it be faid before, that Confirmations and other Grants àre That other
good if they be made by the major part of the Dean and Chapter, senting muff
yet as well
the other Members conſenting as the Dean, muſt be per- be preſent
ſonally preſent to give their Confents; for it is generally faid, that with the
when a Corporation ſhall paſs any intereſt, the Common Law will not
faffer that the Members of the Corporation ſhall give their Allent by
Proctors or Subſtitutes, but that they ought to be Capitulariter Con-
gregati in one certain Place; otherwiſe if they be ſcattered in ſeveral
Places, that which they ſhall do, ſhall not be ſaid to be the Art of
the Corporation, but the Deed of them in their ſingular and private
Capacity, and ſhall not bind : Yet it was agreed, 'that 'the Dean and
Chapter are not confined to the Chapter-Houſe, but may ållemble and
, á .
4. 26. 27 AD. 23. The Caſe of the Dean and Chapter 'of Fernés.
Paſch. 5 fac. Davis 48.
As the major part of the Corporation muſt give their Conferits to Confett by
Confirmations and other Acts in one Place, fo at one Time fomnul fe- Part in one
irel, and not ſcatteringly, or on ſeveral Day's; for the Confent of the Place fimul
Corporation being expreſſed by the putting their Seal to the Deed of Eys ſemel.
Confirmation, or other Writing, if the major Part be not preſent to
confent when the Confent is ſo expreſſed, what is then doite is void for
Want of the Conſent of the major part of the Chapter ; and in ſuch
Caſe the particular Confents of their Members given after, fhall not
make it good. Alſo the major part of the Members Being afferibled,
ought to give their Voices and Conſents fingly and diſtinctly, and not
in à confufed arid uncertain Manner, as may be done in the Chrotce of
Knights of the Shire, &c. and when the 'major part doth fo 'confent,
their Conſent ought to be expreſſed by the 'fixing of their Seal to thó
Décd of Confirmation or other Grant. 4 H. '6. 17. See for theſe 'Polits
If a Grant or Leaſe is made by a Corporation aggregate ; 'as for How the In
Inſtance, if a Leaſe be made by a Mafter, "Brothers and Siſters of an Corporation
Hoſpital, and the Words of the Indenture be, Hæc Indentura inter aggregate
Magiftruirii
, Fratres & Sorores, &c. 'teſtatür, that the Maſter with the ought to be
Afient of the 'Brothers and Sifters aforeſaid, have leaſed to A. In cit-
jus 'rei Teſtimonium, the faid Maſter, with the Affent of the Brothers
and Siſters aforeſaid, have put to their Cominon Seal: Such 'Leaſe is
void; for here the Brothers and Siſters being onte entire Body with the
Maſter, are not Parties to fuch Indenture, but 'give their conſent on-
ly, and a Corporation aggregate is but one Perſon in Law, (viz. one
Body. 30 Eliz. the Provoſt of Queen's College in Oxford his Cafe. *4
Leon. 85.) and a Body cannot be diſtinct, fo as one Part'can conſent to
the Acts of the other ; for this is not like the Cafe of Jointeriant, nor
like the Caſe of a Parſon, Patron and Ordinary, where the Parfon,
with the Affent of the Patron and Ordinary, doth grarit
, &c. 'for there
the Parfon is the principal Grantor, and the others have not any real
B bbb 2
Ir tereſt
Davis 48.
a
468
The Clergy-Man's Law:Or, Chap. XLIV.
ſeg.
Confirma- Intereſt in the Land; by Ayliff and Clench v. Gawdy. Trin. 26 Eliz.
tion of Leas C. B. Clark's Caſe. 4 Le011. 11.
When a Dean of a Cathedral doth make a Grant or Leaſe of
any
Leaſes and of his Poſſeſſions of which he is ſolely ſeifed, to bind his Succeſſors
,
Dean of Ca. which doth want Confirmation ; this, as is faid, regularly muſt be
thedral, how confirmed by the Biſhop and Chapter of the fame Church, and not by
confirmed. the King, although that he be Patron of ſuch Deanery. But there is
fome Doubt, whether the Biſhop's Confirmation be neceſſary to ſuch
Grants; I find it laid down as a Rule, 'That the Biſhop's Confirmation,
as well as the Confirmation of the Chapter, is neceſſary in all Leaſes
or Grants made by the Dean. Parſon's Counſellor, fol
. 124. cap. 10.
And what is faid by Fitzherbert in his Natura Brevium, tit. Sine af
ſenſu Capituli, that the Biſhop and Chapter are but in Law looked
upon as one Body, ſcems alſo to favour this Opinion ; for 'tis reafona-
ble, that the whole Body ought to conſent to the granting their Pof-
ſeſſions, and not that the Biſhop, who is the Head of the Body, ſhould
be unconcerned thercin ; alſo the Poſſeſſions of the Dean are ſaid to be
derived from, and carved out of the Biſhoprick, and the Biſhop de Fu-
re is faid to be the Patron of the Deanery. 17 Eliz. 3. 40. b. which
are all ſtrong Arguments for the Biſhop's Confirmation ; yet I have not
met with any Book Cafe exprefly to warrant the Opinion laid down
by Parſon's Counſellor ; but rather the contrary, that the Confirmation
of the Chapter without the Biſhop, is fufficient to make good the
Dean's Leafes or Grants that need Confirmation, as Dyer 40, 273, 349.
Pl. 18. Plowd. 538. 1 Roll's Abr. 478, 481, therefore, Quære; and
ſee Regift. Orig. 230. b. But if ſuch Deanery be meerly Donative,
then the King's Conſent and Confirmation is to be obtained; but whe-
ther the King's Confirmation without the Chapter in ſuch Caſe be ſuf-
ficient, Quare. However, I conceive that the Biſhop's Confirmation is
not neceſſary in ſuch Cafe, nor to the Grants of any Incumbent of a
Parfonage or Vicarage that is meerly Donative, but only the Patrons
thereof.
The Dean of Wells might anciently have paſſed his Poſſeſſions be-
Deanery dif. longing to his Deanery with the Affent of the Chapter without the
a
Biſhop's Confirmation, and after this Deanery of Wells was ſurrendred
rcēted to be by the Dean thereof with all Poffefſions thereunto belonging, and ſo
of the fame diſſolved ; and by Act of Parliament this Diſſolution was confirmed,
and a new Deanery created, and the Nomination (by Letters Pa-
tent) of a new Dean and his Succeſſors, given to the King, and his
Succeſſors, and thereby alſo enacted, that the new Dean and his Suc-
ceſſors might grant, demiſe and part with their Poffeffions in the ſame
Manner and Form as the ancient Deans might and uſed to do ; in
this Caſe it is not needful to have the Biſhop's Confirmation of a
Grant made by the new Dean, but of the Chapter only; for that his
Confirmation of the Grants of the old Dean was not neceſſary, nei-
ther is the Confirmation of the King of the new Dean's Grants necef-
ſary, becauſe this Deanery it ſeems was not a meer Donative before the
Diſſolution thereof, and by the Statute the new Deanery is made to
be of the fame Nature as the old Deanery was. Paſch. 10 El. C. B.
Walround v. Pollard. Dyer 273. i Roll's Abr. 478.
Of Grants by
If an Archdeacon, or Prebendary do make Grants to bind their Suc-
an Archdca- ceſſors which do want Confirmation, they are to be confirmed by the
bendary. Biſhop, Dean and Chapter. Pafch. & Trin. 15 Jac. P. R. Smith v.
Boules,
An old
new one e-
con or Pre-
4
Chap. XLIV. The Complete incumbent. 469
tion of Leas
ſes.
Bowles, 1 Roll's Abr. 479, & 481. Irin. 7: Eliz. C. B. Hodskins v. Confirma-
'Tucker, Dyer 239.
If a Parſon Vicar, Prebendary, &c. that have not the Fee-ſimple in
them, doth make a Grant to bind his Succeſſor, it is to be confirmed by Where the
the Patron ; but if a Corporation aggregate of many, as Dean and Chap- hath not a
ter, &c. or any fole Corporation that hath the abſolute Fee, as a Bi- Fee-fimplc.
ſhop, &c. doth make a Grant; this is good without their Founder or
Patron, although the Dean, &c. were preſentable. 1 Inſt. 300. b. And
if the Parſonage or Vicarage be a Donative, then the Confirmation is
to be by the Patron only. Paſch. 16 Fl. Dyer 273. b. But if not,
and the Biſhop be not Patron, by the Patron and Ordinary; but the
Confirmation of the Dean and Chapter in ſuch Cafe is not neceſſary.
It is ſaid, though the Guardian of the Spiritualities may inſtitute,
yet he cannot confirm. 7 H. 4. 97.
If an Appropriation be made to the Patron of the Church by the Appropria-
Aſſent of the King and Biſhop, this is ſufficient without the Confirmation tion to a
of the Dean and Chapter, and ſhall bind the Biſhop's Succeſſor; foi King and
the Biſhop gave nothing by his Aſſent, not having any Right as Patron, Biſhop.
but only as Ordinary. 1 Rolls Abr. 481, contra 46 AD 4. Brook, Dean
and Chapter 18. However, if the Biſhop be Patron of any Deanery,
Archdeaconry, Prebend, Parſonage or Vicarage, Gc. and the Incum-
bent's Grant be to be confirmed, the Biſhop himſelf muſt confirm (as
I conceive,) and his Confirmation alone without the Confirmation of
the Dean and Chapter, ſhall make the ſame good to bind the Succef-
for, as it is ſaid to be agreed. Paſch. 13 Fac. B. R. Smith. v. Bowles,
3 Bulſtr. 290. For which is cited 33 H. 8. Brook's Cafe, 46. But this
Confirmation it ſeenis to me, ſhall only ſtand good during the Life of
the Biſhop that did make it, and of the Succeſſor Incumbent that
found the Church charged, becauſe the Advowfon is part of the Pof-
ſeſſions of the Biſhoprick. 11 H.6, 9. 33 H. 8. Broke Leaſe 64. Paſch.
9. Eliz. Dyer f. 357. a. See 1 Roll's Abr. 481. 1 Inft. 300. b. And it is
faid, that if a Biſhop be Patron and Ordinary, and doth confirm a
Leaſe made by the Parſon without the Dean and Chapter, and after
the Parſon dicth, and the Biſhop collateth another, and then is tran-
ſlated, yet this Confirmation remaineth good, for that the Revenues
that are to maintain the Succeſſor are not thereby diminiſhed; and ſo
it is, if the Biſhop doth reſign, yet ſuch Leaſe will be void by the Bi- Leaſe void
ſhop's Dearh; but when by the Biſhop's Grant the Revenues of the by the Bi-
Thop's Death,
Biſhoprick be impaired that ſhould maintain the Succeffor, there the soc.
Privation or Tranſlation of the Biſhop is all one with his Death. I
Inſtit. 329. a.
If the Biſhop of A. be Patron of the Church Preſentative of B. which
lies within his Dioceſe, and this is the Corps of a Prebend in the Church
of A. and the Biſhop of A. is alſo Patron of the Church of C. which is
alſo Preſentative and lies in the Dioceſe of the Biſhop of D. and after-
wards the Church of C. is lawfully annexed and united by the Aſſent
of the Biſhops, Deans and Chapters of both Dioceſes to the ſaid Pre-
bend of B. and afterward the Biſhop of A. doth collate F. S. to the
ſaid Prebend, which now by the Union doth conſiſt of both Churches,
and doth inſtall him in the Cathedral Church of A. and then the Pre-
bendary doth make a Leafe for Years, which is confirmed by the Bi-
ſhop, Dean and Chapter of A. and not by the Biſhop of D. yet this is
a good Confirmation; for by the Union, the Biſhop of D. hath annex-
ed the Church of C. to the Prebend of B. and ſo hath deprived him-
ſelf
470 The Clergy-Man's Law: Or, Chap. XLIV.
any
The Patron
tereft.
Coc. or in
Tail.
Conärma- ſelf of the Power of Confirmation as Ordinary ; for after the Union the
tion of Lea Prebendary is inveſted in both Charches by his Inſtalment without
other Preſentment, Admiſſion, Inſtitution or Induction to the Church
of B. or C. Paſch. 10 Fac
. B. R. Leigh v. Hellyer, 1 Roll's Abr. 479.
Mich. 39 & 40 Eliz. B. R. Dr. Herbert v. Munday, 3 Cro. 587, and
Pafch, 14 Car 2. B. R. Gie v. Rider, 1 Siderfin 75. 1 Keb. 280.
That the Patron's Confirmation may be fufficient, no other Perfón
confirming ought to have any Intereſt in the Patronage, but the Patron or Patróns
ought to have that do confirm ; for thoſe Grants that are confirmed, being to bind
Succeffors, are in the Nature of a Charge upon the Advowfon, and
therefore ought to be directed by the Eſtate which the Confirmer hath,
and being derived out of the Eftate of the Advowſon, can endure no
longer than the Eſtate of the Patron confirming doth abide. i Inft
.
b. Maund and French's Caſe. Hill. 13 Jac. 1 Roll's Rep. 361.
390.
i Rolls Abr. 480. Accordingly if there be a Patron Paramount, as
well as an immediate Patron, Confirmation of the immediate Patron
without the others Confirmation is not good; for Inſtance, if a Parſon
be Patron of the Vicarage of the fame Church, and the Vicar doth
makè à Leaſe confirmed by the Parſon and Ordinary only, this is not
good without the Confirmation of the Patron of the Rectory alſo. So
if the Patron's Eſtate in the Advowfon that confirms be Conditional
,
and after the Condition is broken, thereby the Confirmation is void, as
If he be Te determining with the Eſtate of the Confirmer. 1 Inft. 300. b. Or, if the
nant for Life, Patron that confirms be but Tenant in Tail, or Tenant 'for Life, his
Confirmation ſhall only bind ſuch Incumbents as come into his Church
during his own Life., 31 Ed. 3. tit. Grants 61. and accordingly it was
agreed by Coke and Dodderidge, that if a Parſon doth make a Leafe
for Years, which is confirmed by Patron and Ordinary, the Patron be-
ing Tenant in Tail, the Patron and Parfon both die, and the iſſue in
Tail doth preſent another, his Preſentee ſhall hold the Rectory dif-
If the Iſſue in charged of ſuch Leaſe. And alſo they agreed, that although the Iffue
Tail levy a in Tail after a Preſentation doth levy a Fine yet the Preſentee of the
Conuſee, when the Church becomes void again, fhall hold it diſcharg-
ed alſo; for that the Confirmation was defeated by the Preſentation of
the Iſſue in Tail. Paſch. 14 Fac. B. R. Maund' v. French, I. Roll's
Rep. 361, the fame Cafe, Hill
. 13 Jac. Bridgman 95. But if the Pa-
tron that is Tenant in Tail doth diſcontinue the Eſtate in Tail, the
Leaſe ſhall ſtand good during the Diſcontinúance'; or if the Eſtate
'Tail be barred, it ſhall ſtand good for the whole Term. I Inft.
If the Chaplain of a Chantry or Free Chapel, that was a Donative,
Chaplain ofa had made a Leaſe for Years before 32 H. 8, and the Patron of the
Chantry, EC
Chapel being ſeized of the Patronage in Tail, had confirmed it, this
ſhould not have bound the Chaplain of the Iſſue in Tail. Dyer 8 Eliz.
252. And if in ſuch Caſe the Patronage of the Donative came to the
King by the Statute of Chantries, neither the King, nor his Clerk,
ſhould be bound by the ſaid Leaſe; but if the Donor levied a Fine
after the Confirmation, by which the Iſſue in Tail was bound from
avoiding the Leaſe, the King alſo ſhould be barred. Roll's Abr. 480.
If Tenant in Tail of an Advowſon and his Son and Heir apparent do
join in a Grant of the next Avoidance, and after the 'Tenant in Tail
dics, the Son ſhall avoid the Grant, becauſe he had nothing in the
Advowſon at the Time of the Grant made. Mich. 12 Fac. Mgril and
Scroop v. Ewbank and Tophal, 1 Roll's Abr. 482.
If
Fine.
300. b.
Leaſe by
4
Chap. XLIV. The Complete Incumbent.
471
tion of Leas
(es.
niers.
:
be collared
upon a Lapre
firmor.
67.
If there be three Coparceners or 'Tenants in Common of an Advow- Confirma
fon, the Confirmation muſt be made by all of them, elfe it will not
bind the next Incumbent, becauſe they are all but one Patron (by Coke.)
But if there be a Compoſition to preſent by Turns, Quere, If á Lcaſe Confirmation
be confirmed by him that the next Turn, when the Church voids, ſhall
by Coparcea
not be good to bind his Preſentee? But if of the Three Coparceners or
Tenants in Common, one be a Feme Covert, and the confirms, her
Act is void, and ſhall not bind her, her Heirs or Clerk, but only du- .
ring the Coverture. 1 Roll's Abr. 479.
Qulære, if the Succeſſor of the Incumbent that made the Lcafe, be If ſucceſſor
collated upon the Title of Lapfe by the Succeffor of the Biſhop that
confirmed it, whether ſuch Clerk be bound, (it feems not ;) for that hy Succeffor
the Ordinarý hath no Intereſt, but prefents in Right of the Patron, and of the Con-
fo his Clerk' fhall be ſo far bound, and no farther than the Clerk of
him that ſuffered the Lapſe ſhould have been. Mich. 32 and 33 Eliz, .
B. R. Lancaſter v. Lucas, i Leon. 233.
Though he that confirms as Patron hath the Fee-Simple of the Ad- Where the
vowſon in him, yet if before he confirms he hath granted away the Patron's
next Avoidance, his Confirmation of the Prefentce's Leafe will not be alſo confirm:
good to bind the Prefentee of the Grantee of the next Avoidance, ein-
lefs fuch Grantee doth alſo confirm. By Brown, Trin, 6 Eliz. Moor
Mich. 3 and 4 Ph. and Mar. Dyer 133. tl. And if the Preſentee
of him that hath the next Turn doth enter and void ſuch Leafe (as be
well may) and then dying, the Patron of the Fee doth prefent à new
Incumbent; this new Incumbent fall hold the Bencfice dicharged of
the Leaſe which was confirmed by his Patron; as his Predeceffor Thould
have done, for the Leafe was fully avoided by the Entry of his Pre-
deceffor, and not for his Time only, becauſe the Predeceſſor that a
voided it had the intire Fee, (as much as any Parfon may have of a
Rectory Preſentative) and when he was in and had evicted the Lellee,
it was an abſolute Eviction of the intire "Term without Expectation of
Revivor, and was an Eviction not only for himſelf and his own 'Time,
but alſo for all his Succeſſors; per Curian, upon a Writ of Error. Paſch.
16 Car. B. R. Ploween v. Oldford, 1 Cro. 582, the fame Cafe, Fones
p. 454. See the Earl of Bedford's Caſe, 7. CO. f. 8. Trin. 11. Fac.
Spendłow v. Barket, Hob. 7. i Inft. 46. C. So if the Incumbent of an Upar :
Ufurper doth niake a Grant, which is confirmed by the Ufurper, aird Granr By elke
the Ordinary, and in a Quare impedit the true Patron doth recover, an Ulamper.
and remove the Incumbent, the Grant thereby is defeated, becaufe it
was not made and confirmed by thoſe that were Parſon and Patron im
Right, 1 Roll's Abr. 480, where he cites, 9 H. 6. 33, (which warrants
not what he fays, but the contrary.)
But note, That a Patron may not only conform explicitly by his Patron may
Deed or Writing, but alſo by Confequence of Law; for if à Parfon confirm bý
doth make a Leafe for Years to the Patron, who doth grant over or of Law, if
affign it to another, this is a Confirmation in Law by the Patron ; bat abſolutely
without fuch Aſſignment the Ordinary's Confirmation ſhall not make
the Leaſe good to the Patron to bind the Succeffor according to News
comb's Cafe, cited in the Cafe of the Ecclefraſtical Perſons. 5 Co. 15.
a. I Cro. 36. Pafch. 14 Jac. B. R. Maund v. French, 1 Roll's Repo
361, 171. 1 Inft. 301.b. 302.a. But then the Patron onght to be ab-
folutely ſeized of the Advowfon, otherwiſe it ſhall bind but according
to the Eſtate that he hath therein,
a.
of
ſeized,
...
As
472
The Clergy-Man's Law: Or, Chap. XLIV.
(es.
Atruation of
Law a Con-
firm
fed.
Confirmas As by Conſequence of Law Confirmation may be without Writing,
fion of Leas fo if it be by Writing, by Conſtruction of Law, it may be for longer
Term than is thereby expreſſed; as if a Patron doth at this Day make
How by Con- Leaſe for Twenty-one Years, and the Patron and Ordinary do confirm
his Eſtate for Seven Years, this by the Conſent of all is a Leaſe well
confirmed for the Seven Years, Mich. 16 and 17 Eliz. C. B. Dyer 338,
may be for a and by ſome ſhall amount to a Confirmation of the whole 'Term of
than expref: Twenty-one Years, as by Richardſon, who took a Difference where the
Eſtate is confirmed, and where they confirm the Land for Seven
Years; in the firſt Caſe, the Confirmation confirms all the Eſtate; but
where they confirm the Land for Seven Years, that Confirmation ſhall
not inure but according to the Term limited, and that Difference was
agreed by Croke and all the Serjeants at the Bar; but Hutton doubted.
Hill
. 3 Car. C. B. Tomlinſon's Caſe, Hettley 75. And accordingly
when a Prebend demiſed a Rectory, Parcel of his Prebend, for Seventy
Years, and after the Biſhop confirmed the fame Demiſe for Fifty-one
Years, and the Dean and Chapter likewiſe confirmed the ſame for
Fifty-one Years, and no more. It was held by all the Juſtices, that
they might confirm feverally, and that their Confirmations were avail-
able for the reſt of the Term after Fifty-one Years, viz. for the whole
Seventy Years; for when the Biſhop, Dean and Chapter, reciting the
Demiſe of Seventy Years, do confirm Dimi ſionem prædi&tam in forma
prædi&ta, theſe Words, pro termino Fifty-one Years & non ultra, come
too late; and the Leafe being for Seventy Years it is repugnant to con-
firni Dimi ſionem prædi&tam for Fifty-one Years. But if the Biſhop, Dean
and Chapter, had recited the Leaſe, and had confirmed the Land to
the Leſſee for Fifty-one Years, the fame had been good for that Term
only, for then there ſhall not be any ſuch Repugnancy in the Confir-
mation. And a Difference is in this ſame Cafe made between a bare
Aſſent without any Right or Intereſt, and an Aſſent coupled with a
Right or Intereſt ; for the Termor who is to perfect a Grant by his
Attornment cannot affent for a Time, nor upon Condition, nor for Part
of the Thing granted, but it ſhall abſolutely cnure to all, becauſe he
hath but a bare Aſſent which cannot be qualified or apportioned; but
the Biſhop who is Patron, and the Dean and Chapter, have an Intereſt
Where Pa- in the Prebend, and every part of it. 3. Cro. 79. For the Patron hath
tron and Or- fus conferendi, and a Releaſe unto the Patron of an Annuity in the
dinary may
charge the
Time of Vacation is good, as it is holden in 21 H. 7. 41. 8 E. 3.
28.
Percy's Caſe, 33 E. 3. Aid de Roy 103. 8 H. 6. 24. And alſo it is
holden in 31 E. 3. Grants 90. 16 E. 3. Annuity 23. 8 R. 2. Annuity
53, that the Patron and Ordinary may charge the Glebe in Time of
Vacation ; and Fitz. N. B. 49, faith, that the Right is in the Partron
and Ordinary. Litt. cap. Diſcontinuance, fe&t. 144 145. So if a Leaſe
be made of Twenty Acres, they make a Confirmation as to Part of
the Land, viz. to one or more Acres, fo they may confirm Part or all
upon Condition ; by which it appeareth, that they have not a bare Af-
ſent as in caſe of Attornment, but an Affent clothed with an intereſt
.
Another Difference was taken between a Leaſe for Years, and a Leaſe
for Life; a Gift in Tail, or a Feoffment in Fee; for if a Prebendary
make a Leaſe for Years, Confirmation may be made of the Land, as
hath been ſaid before, for a lefs Number of Years; for the Years are
ſeveral, although the Lcafe or Term be one. As if a Man make a
Leaſe of Lands for Five Years, rendring Rent every Year Twenty
Pounds, the Years are ſeveral, ſo that an Action of Debt will lie for
the
Glebe.
I
Chap. XLIV. The Complete Incumbent.
473
v
(es.
on
well before
the Rent every every Year, as it is adjudged in 45. E. 3. 8. But if a Confirina:
Prebendary make a Leaſe for Life, or a Gift in Tail, or a Feoffment fion of Lea-
in Fee, and Confirmation is made of the Land to the Leſſee, Dorico
or Feoffee, for one Hour, it is good for ever, for an Eſtate of Free-
hold or Inheritance is intire ; therefore it is, that if he who hath a Frec-
hold or Inheritance be diffeiſed, and confirmeth the Land to the Dif-
ſeiſor for one Hour, it is good for ever. See for all theſe Differences,
Paſch. 37 El. C. B. Foord's Cafe, 5 Co. 81. Paſch. 38 Eliz. í Ander-
for 47. and 1 Inft. 297.
The Time when a Confirmation is made is not generally to be re- Confirmati-
garded, for it is ſaid, that if a Biſhop doth make a Leaſe for Years on may be as
the 2d of May, and the Dean and Chapter confirm it on the iſt of the Leafe as
May, this is a good Leaſe after the Biſhop's Death; by Catlin and after.
Southcot : But Wray objected, that a Leaſe cannot be confirmed before
it be made. Catlin and Southcot replied, that the Aſſent before is a good
Confirmation of a Leaſe made after, Hill. 18 Eliz. Owen f. 33, and
14 Eliz. the Biſhop of Rocheſter's Cafe, 4. Leonard 23. So when a
Biſhop made a Leaſe the ad of May, which was confirmed the 3d of
May, and ſealed the 4th of May, it was held that the Leafe was well
confirmed, Juſtice Harper's Rep. Mich. 14 and 15 Eliz. So when the
Deed of Confirmation borè Date before the Deed confirmed, but by
Agreement the Deed confirmed was firſt delivered, the Confirmation
was held good. 1 H. 6. 8. For a Confirmation is but a meer Aſſent by Confirmati-
Deed to the Grant; and therefore, if the Patron and Ordinary give on is but a
Licence by Deed unto the Parſon to grant a Rent-Charge out of the meer Affent
Glebe, and the Parfon doth fo accordingly, this is good and binding to
the Succeſſor, and yet is not a Confirmation fubfeqnent, but a Li-
cence precedent. 1 İnft
. f. 300. b. So if a Leaſe be niade by a Biſhop
to the King, and a Commiſſion doth iſſue out of the Exchequer to take
this Leafe, and after the taking thereof, and before the Inrolment, the
Dean and Chapter do confirm the Leaſe, the Confirmation is good,
though it be before the Inrolment; becauſe Confirmation is but an
Aſſent which may be as well before the Leafe as after. Evans and
Aſcough's Cafe, Hill. 22 Jac. Latch. 240. Trin. 8 Jac. Sir Edward
Dimock's Caſe, i Roll's Abr. 471. i Inft. 301. a.
But on the contrary
it hath been held, that if a Confirmation be made and delivered before
the Grant be confirmed, this is not a good Confirmation; and in
this Caſe it was faid, that if after the Grant the Confirmation be
delivered again, yet that will not make it good, for that it was a
Deed by the firſt Delivery, and the ſecond Delivery will not make
it good as an Aſſent, becauſe the Affent ought to be by Deed, and the
firſt Delivery was void. 8 H. 6. 6. cited i Roll's Abr. 480.
If a Confirmation of a Biſhop's Grant be made by the Dean and Confirmati-
Chapter after the Death of the Biſhop, this Confirmation comes too on of Bishop's
late. Harper's Rep. 14 & 15 Eliz. But by Clench, if the Confirmation bc his adeather
made in the Vacation after the Biſhop's Death, it's good, 28 Eliz. Grij-
dal's Cafe, 4 Leonard 78. But of this I much doubt, for the Death muſt
void the Leafe, which Confirmation cannot revive. And accordingly,
when a Parfon did grant an Annuity, and then reſigned, and after the
Patron and Ordinary did confirm the Grant, the Confirmation was of
none Effect, for that it was made after the Reſignation, and ſo not till
after the Grant of the Annuity was determined. 21 H. 7. 1.
And all
Confirmations are to be made in the Life, and during the Incumbency
of the Parſon, who makes the Grant; and ſo in like Manner in the Life
of the Biſhop, and every other ſole Corporation. 1 Inft. 301.6.
Сccc
But
1
Confirinari-
tron.
the Leaſe for that Reaſon
474 The Clergy-Man's Law: Or, Chap. XLIV.
Confirmas But if a Parſon doth make a Lcafe, which is not confirnied by the
a
fion of Lea- Biſhop, or Patroń thert in Being, bat by the ſucceeding Biſhop, and
ſucceeding Patron, this is a good Leaſe againſt the Succeſfor'according
to Newcomb's Cafe, 5 Co. f. 15. Trin. 2 Car. B. R. Sir Robert Banni
ceeding Bi- fter's Cafe, 1 Cro.38. But if a Biſhop doth make a' Leafe for One and
ſhop and Pa- twenty Years according to the Statutes, and after doth makė à con-
current Leaſe, for Years of the fame Land' to another, and after and
before any Confirmation of the ſecond Leaſe the Biſhop dothi make an-
other concurrent Leaſe to a third Perſon, which immediately confir-
med, and after the ſecond Leafė is confirmed allo's in this Cafe the fe-
cond Leåſe Thall be good and effe&ual by the Confirination, altkough
that the l'aft Leaſe was confirmed before it, for the Confirniation doth
not convey any Intereſt, buť is only to make the Leaſe durable and
effectual; by Dyer, Weſton and catus, Irint. 6 Éliz. Móor 69. And
upon this Reaſon it hath been adjudged that Leafes made before the
Statute of 13 Eliz. for more Years than are allowed thereby, being
confirmed after the faid Statuté, are good for tlie whole Term. And
ſo becauſe the Stafute of 13 Elīzi c. 1o, doth only reftráiñ from alie-
nating, not confirming. Mich. 38 & 39 Eliz. Arkingsat v.. Denny
,
Moor 459, Paſch. 25. Eliz. C. B. Higgons' v. Grant, 3 Cro. 18. Mich.
23 & 24 El in the High Court of Parliament, the Caſe of Ecclefiafti-
cal Perföris. 's Co. 14." And to it Käth been hefd per Cutiánñ; that the
Statute of Eliz. did not reſtrain Biſhops from confirming the in-
cumbent's Leaſes made for above One and twenty Years, although the
| Biſhop was as well Patron as Ordinary of the Church to which the
Thing leaſed did belong. Mich. 37 & 38 Eliz. Sir Edward Denny v.
Égkenſtal. 3 Cro. 430.
A fécond Rule at Common Law 'to be.obferved by Eccleſiaſtical
rruly named. Perſons, or Corporations, in making Grants and Leaſes, is truly to
name the Corporations according to the Name by which they are in-
corporated; and this not only in making of Leafeś
, být alfo Preſenta-
tions, Confirmations, &c. Hill. Jac. Dr. Array's Cafe, in Co. 19. So
of Obligations, c. L. 5. E. 4. 201. Pafch. 4.& 5. P. & Mar. Bend-
low 2.
In likė Manner all Grants made by others to them, the Cor-
poration muſt be truly named. And yet in Preſentationis it ſeems not
to be altogether neceſſary to name the Corporation by its true Name;
for when the King preſented to the Deanery of Norwich, and did miſtake
and miſrecite the Name of the Foudation of the Deanery, the Prefen-
tation was held good, becauſe it was but a Commendation of a Perfon
to the Dignity, and touched not the Inheritance. Trin. 8 Jac. Ci B. the
King v.--2 Cro. 248.
If Land be given to George Biſhop of Norwich, where his Name is
Baptiſm ini-
John, for that in this and the like Caſes there can be but one of that
Dignity or Name, ſuch Grant is good, albeit the Name of Baptiſm bé
miſtaken: So if by Licence Lands be given to the Dean and Chapter
of Norwich, this is good, although that the Dean be not named by his
proper Name, if there were a Dead at the Time of the Grant; but in
Pleading, his proper Name muſt be fhewed; fo on the other Side, if
the Dean and Chapter make a Leafe without naming the Dean by his
proper Mame, the Leaſe is good, if there was a Deán at the Time of
the Leaſe made; but 11 E. 4. 8. Br. Corporations f. 95, is contrary.
Yet a Leafe being made by a Dean and Chapter in theſe Words, Nos
Decanus & Capitulun, without naming the Dean by his proper Name,
,
i Le011.
'The Corpo-
Name of
Itaken.
4
Chap. XLIV. The Complete Incumbent.
475
in Leafes.
riance.
1 Leon. 307. See Dyer 106. II Co. 21. Perkins 8. 27 H. 6. 3. Hobart Witnomer
32
Litt. Rep. 201. 11 Co. 20. Owen 35. Dalliſon 78. Note, that any
Man that alters his Name at Confirmation, may purchaſe by his new
Name. 1 Inft. f. 3. 4. 1 Brownlow 147., Lit. Rep. 182. And it is ſaid,
that the Name of a Corporation is as the Name of Baptiſm which can-
not be changed. Bendlow 2.
But in theſe Caſes, it is not neceſſary that the Corporation be named Variation a's
according to the very Words, ſo that it be named according to the Senſe fiances hures
and Subſtance of the very Name, although there be a Variation as not.
to Circumſtances. Mich. io Jac. C. B. the Caſe of the Mayor and
Burgeſſes of Lyn Regis, 10 Co. 120, and by Gaudy, Trin. 39 Eliz.
Sherborn v. Lewis, Gouldsborough 120. Hill
. 29. Fanſhaw's Cafe,
Moor 228. Mich. 10 & 11 Eliz. Dyer 278. Trin. 30 Eliz. Fiſher v.
Boys, Moor 266. Mich. 36 & 37 Eliz. Lord North's Cafe, Moor 36T.
But the great Queſtion or Difference is, when the Name of a Corpo- Great Que-
ration in any Grant or Deed ſhall be ſaid to vary from the true Name ition of Va-
in Subſtance, and when in Circumſtance only.
We muſt note, that there are, according to Manwood, Chief Baron,
ſome Things of Subſtance to be obſerved in every Corporation found:
ed to pious Uſes. Firſt, it is needful that there be Perſons for the
Support of the Corporation in which the Freehold and Government of
it may remain, and they ought to have and be known by ſome Name;
as Preſident and Scholars, or Maſter and Scholars, &c. and a Variance
in this Name is a Variance in Subſtance.
Secondly, That the Perſons ſhall be appointed to one Houſe certain, Variance in
in which they ſhall be reſident, which Houſe, alſo ought to have a the Name of
Name known, as College, Hoſpital, or the like ; and Variance in the the Houſe.
Name of the Houſe is a Variance in Subſtance.
Thirdly, it ought to have the Name of a Saint to whom it is dedi- In the Name
cated, or of the Perſon by whom it is founded, as Collegium Petri, or
Pauli, or Gonvel-Hall, or Chriſt-Church, doc. and Variance in this
Name of Dedication or Foundation is Variance in Subſtance.
Fourthly, It ought to have a Place known in which the Houſe ſhall Variance as
ſtand, known by ſome Name before the Foundation, as Oxford, Came to Place
bridge, London, &c. and Variance as to this place is an aſſential Vari- Houfe ftandse
ance. Hill. 29 Eliz. Fanſhaw's Cafe, Moor 228. But it fufficeth that
there be a ſufficient Demonſtration of the Place where the Corporation
is, though it be not by preciſe Words comprized in the Charter, as in
naming, to fay Academia Oxon pro Villa Oxon; ſo if a Town was
incorporated by the Name of Mayor and Commonalty of ſuch a
Town, as Briſtol, Exeter, oc. which afterwards are made Cities; it
is good to ſay, Mayor and Commonalty of the City of Exeter, &c.
after they became Cities; but more Preciſeneſs is uſed in the Body of
the Name of the Corporation before the Place to which they are an-
nexed; yet in them that which is but an Ornament to the Name com-
prehended in the Charter ſhall not hurt, as the Grant of St. George of
Windfor, if it be of St. George the Martyr, &c. is good, becauſe the
Martyr is but an Addition of Ornament to the Name comprized in the
Charter, and ſo in Reality is the ſame Name. Burton and Wright-
mori's Cafe, Mich. 36 & 37 Eliz. B. R. Popham 56.
Variance, as
Though Leafes, &c. are void when there is Variance in the Sub- Addition, In-
ſtance of the Name of the Corporation; yet not when the Variance is Omiffion, or
only as to any of theſe four Circumſtances, viz. in Addition, Interpofi- Commuta-
tion, Omillion, or Commutation, or altering the Order of the Words, void the
C c cc 2
fo Loafes.
of Dedicatis
On, Corc.
476
The Clergy-Man's Law: Or, Chap. XLIV
If the true
Conftru&ti-
ons of the
Mariance in ſo that they retain the four aforeſaid Principles of Subſtance, by Man-
Leates, wood, Chief Baron, in Fanſhaw's Cafe, Hill. 29 Eliz. Moor 231, and
Trin. 6 Eliz. Moor 71. And generally albeit the Words in the Grant
do not agree with the Words of Incorporation, yet if they agree in
common Underſtanding it is good; but if in common Underſtanding
the Grant may not be taken according to the Foundation, there it is
not good; by Popham in Sherburn and Lewis's Cafe. Trin. 39. Eliz.
Gouldsborough 123.
But if the Name of a Deed doth not import of it felf the true Name
Name, &c. of the Corporation, yet if in Pleading, or by a ſpecial and expreſs A-
appear by
verment, or by the finding of the Jury, it ſhall be made apparent to
Pleading, or
Avernient, or
the Court that the true Name of the Corporation, and the Name in
the Jury's
the Leafe, Grant, &c. are all one in Effect, it will much enforce the
finding
Matter, although that in Words there be fome Appearance of Differ-
ence; by Coke, in the Caſe of the Mayor and Burgeſſes of Lyn Regis
.
Mich. 1o. Fac. C. B. 10 CO. 125.
And indeed, the Judges ought in thefe Cafes (as generally they do)
to make fuch Conſtructions, if they may, that Grants do ſtand good.
Judges.
Sherborn v. Lewis, Gouldsborough 122, and it is great Reaſon that Fa-
vour and Equity ſhould be mixt with Juſtice, for that Suits to avoid
Grants upon the account of the Mifnoſmer are odious Suits ; and a
ſhameful, Thing it is that when Grantees or Lefſees, who for the moſt
Part are illiterate Perſons, have paid great Fines. Corporations, that
are preſumed beſt to know their Name of Foundation, ſhould go about
to avoid their own Grants under their Common Seal upon ſuch a flight
Miſtake: The Reader may fee divers Cafes relating to this Subject,
cited in the Caſe of the Mayor and Burgeſſes of Lyn Regis. Mich.
10 7ac. 10. Co. 120. Hayward and Fulcher's Cafe, Palmer 491, and
in Fanſhaw's Cafe, Moor 2 28. See in the ſame Book 71, 539, and 6 Co.
24. I Leon. 159. Gouldsborough 121. Plowden 537. i Anderſ. 196,
201. However, it feems that in ſuch Cafe Remedy may be had in
Chancery.
the Court of Chancery; for the Lord Chancellor faid it was fit to
help ſuch Leafes there, if for reafonable Time, and made upon good
Conſideration, otherwiſe not. 1 Fac. Cary 44. 32 & 33 Eliz. Lord
Audley v. Sidenham, Tothib 136.
Many more Things at the Common Law are to be regarded in
making grants by Spiritual Corporations, which are here omitted, for
that they are Common with them to all other Perſons making Grants
in their natural Capacity.
Relicf in
-
CH A P.
Chap. XLV. The Cornplete Incumbent.
477
en la es void
Ğ HA P. XLV.
Leaſes void and voidable. Voidable Leaſes,
how made good or actually void. Entries,
how to be made. Diſcontinuance and Aid
Prayer. Judgments in Real Actions, to
whom binding.
HAMING fhewed
next Ayoi-
dance good
AVING ſhewed what Eſtates Eccleſiaſtcal Perſons or Corporati-
ons may at this Day make, and what Rules are to be obſerved
by them in the making thereof, that they may not be void; It remains
to be ſhewed, againſt whom ſuch Grants or Leaſes are void, by what
Means, and in what Cafes they may be affirmed or made good by the
Succeſſor, and by what Means they may be made actually void that
were but voidable.
Firſt then, although that by the Words of the Statute of · Eliz. Biſhop's
cap. 19, Leaſes or other Grants made by any Archbiſhop or Biſhop, Grant of a
that be not warranted by the ſame, ſhall be utterly void; yet it hath
been adjudged, that if a Biſhop grant a next Avoidance which is not againit him-
warranted by this Statute, becauſe it is a Thing lies meerly in Grant, félf.
out of which no Rent can be referved, it is not void againſt the Bi-
ſhop himſelf that makes the Grant, but only againſt the Succeſſor,
Paſch. 32 El. Sale v. Biſhop of Coventry and Marſh, 1 Anderſon 241.
Mich. 37 & 38 Eliz. Dean and Chapter of Hereford v. the Biſhop of
Hereford and Ballard. 3 Cro. 440. Mich. 32 & 33 Elizi Smallwood
and others v. the Biſhop of Coventry and Marſh, 3 Cro. 207. Trin. 41
Eliz. Armiger v. Biſhop of Norwich and Holland. 3 Cro: 690. Single-
ton's Cafe, cited in Lincoln College's Cafe. 3 Co.f. 59. b. And ſo it is
if a Biſhop doth make a Leaſe of the Advowſon of a Church, Small-
wood v. the Biſhop of Coventry and Litchfield, and Marſh, Savil's Caſe.
188, Pafch. 15 Car. 3. Scaccar, Morrice v. Antrobus, Hardres 366.
Scudamore v. Belliſon. i Keb. 182. So if an Annuity be granted by
a Biſhop out of the Poſſeſſion of the Biſhoprick, this is not void againſt
the Biſhop that makes the Grant thereof, the Biſhop of Salisbury's Cafe.
Trin. 11° 7ac. C. B. 10 Co. 60. Or if a Biſhop makes a Leaſe for a-
bove One and twenty Years, this ſhall bind the Biſhop during his
Time, as was faid in Sir Moyl Finche's Cafe. 33 Elizi 2 Leon. 134.
Or if a Biſhop doth let Tithes for three Lives, which is a void Leafe
againſt the Succeſſor, becauſe there is not any Remedy for the Rent;
or if the ancient Rent is not reſerved, and Annually due and payable,
yet it was adjudged this Leaſe was not void againſt the Biſhop him-
felf that made it. Trin. 5 Jac. B. R. Rickman v. Garth, 2 Cro. 173.
And when a Biſhop did by Deed inrolled grant to the Queen with- Biſhop's
out the Conſent of the Dean and Chapter, it was held that this was
Queen.
not void againſt the Biſhop himſelf. Warren's Caſe V. Smith, or Mag-
dalen College's Cafe, Pafch. 13 Jac. B. R. 1 Roll's Rep. 151. So
though the Statute of 13 Eliz. cap. 10s doth ſay, That all Leaſes;
Gifts, Grants, &c. made by any Perſons or Corparations therein men-
tioned, contrary to the Tenor of that Act, ſhall be utterly void and of
Leaſes above
21 Years.
Grant to the
none
1
478
The Clergy-Man's Law: Or, Chap. XLV .
Sgroc.
iter and Fel-
lows of a
Leaſe; void, none Effect to all Intents, Conſtructions and Purpoſes; yet it hath been
adjudged, that a Leaſe made againſt the ſaid Statute by a Dean and
Chapter ſhall not be void, or avoided by them, nor any Covenants
therein contained, during the Life and Continuance of the Dean that
made the Leaſes and if they have made a Leaſe for Years of any of their
Poffeffions, and before the Expiration thereof do make a concurrent
Leaſe alſo for Years of the ſame Lands, and then make a Third
Leaſe for Lives, with an expreſs Covenant, that the Grantee of the
Leafe for Lives ſhall enjoy the Land againſt the ſecond or concurrent
Leaſe; and the Grantee of the Leaſe for Lives being in Poffeffion is
evicted, and brings Covenant againſt the Dean and Chapter ; in this
Cafe, although the laſt Leaſe for Lives be void by the Statute of
Eliz. yet it was agreed by the Juſtices, that becauſe the Dean that
made 'the Leaſe for Three Lives was living, and continued Dean ät
the Time of the Eviction, the Leaſe and Covenants were not void.
Paſch. 10 Jac. Walter v. the Dean and Chapter of Norwich, Moor
875, the fame Cafe, Brownlow and Gouldsborough 2 Part 158.
Leaſe by Ma So when the Caſe was, that a Maſter and Fellows of a College did
by Deed inrolled make a Leaſe not warranted by the Statute, and
College, ec. did ſuffer a Fine and Five Years to paſs without Claim ; though this
was void againſt the ſucceeding Maſter, yet by Conſtruction the Leaſe
and Fine ſhall be good againſt the College (though it be a Corporation
that never dies) during the Life of the Maſter that was Party to the
Leaſe and made no Člain, becauſe he is the Head and principal Part
of the Corporation. Pafch. 17 Jac. the Caſe of the Maſter and Fel-
lows of Magdalen College in Cambridge. 11 Co. 67, the fame Cafe,
1 Rolls Rep. 151. Mich. 32 & 33 Eliz. C. B. Carter and Claycole's
Caſe. i Leonard 306.
Archdeacon,
And the Law I ſuppoſe to be the fame, if an Archdeacon, Dean or
Prebend, &c. make Leafes or other Grants of any of their ſole Pof-
Prebend,
ſeſſions, not warranted by the faid Statute, viz. That they ſhall be
their Leaſes. bound by their own Grants for their 'Time ; for fo was it held in the
Caſe of a Parſon, by Popham, Clinch and Gawdy; that is, if a Rent
be reſerved by ſuch L.caſes, otherwiſe not, as was ſaid by Popham.
Hill. 43 Eliz. Revil v. Hart. Gouldsborough 138. And the Reaſon
of all theſe Cafes is, becauſe that the Intent of the Statutes of the ift
and 13th of Eliz. was only to provide for the Succeſſor, and not re-
lieve the very Perſons, themſelves who make ſuch Leaſes or Grants
not warranted by the Statutes. Hetley 24. But where there is a Chap-
ter that hath no Dean, as the Chapter of the Collegiate Church of
Southwel, there Grants or Leaſes made by them contrary to the Sta-
tute of 13 Eliz. are void ab initio, for they muſt be either fo, or good
for ever. Trin. 27. Car. 2. C. B. the Chapter of the Collegiate Church
of Southæel v. the Biſhop of Lincoln and J. S. 1 Modern Rep. 204.
And in all Caſes where a Corporation aggregate makes a Leaſe not
warranted by the Statute of 13 Eliz. ſuch Leaſe is void ab initio a-
Aliter by fole gainſt themſelves, as hath often been adjudged; but where a ſole Cor-
Corporation.
poration makes ſuch Leaſe, it ſhall bind him that makes it, but ſhall
be void againſt his Succeſſor. Paſch. 15. Car. 2. Scaccar. Morrice v.
Antrobus. Hardres Rep. 326. Carter v. Claycoles. I Leonard-308.
As Leaſes and Grants not warranted by the Statutes are not void a-
gainſt the Leſſors and Grantors themſelves, fo neither are Grants made
without due Confirmation, where Confirmation is neceſſary, but only
by the Grantee's Death, &c. Trin. 7 Eliz. C. B. Hoskins v. Tucker.
Dyer
Dean or
bound by
-
Chap. XLV. The Complete Incumbent.
479
Orc.
:
As of Tithes
Dyer 239. But Grants: made by Corporations, in which the Corpo- Leafes boid,
ration is miſnamed; arvoid imediately againſt the fame Grantors,
Allo a Biſhop having made a defective and voidable: Leaſe or Grants Advantage to
11ot only the Succeffor, but also the King; when the 'Temporalities fucceeding
come into his Hands, may take Advantage: thereof by avoiding them
during the Vacancy, of the Bithopæick, in Privity and Right of the
Biſhop. But thougly the King in Privity and Right of the Biſhop-
rick hath avoided the Leafe during the Time that the Tempora-
lities were in his Hands, yet the Leaſe is not thereby fo abſolutely
avoided, but that the ſucceeding Biſhop may make the ſame either good
of void at, his Election as to himſelf. Mich., 28 & 29 Ehia. the Ear)
of Bedford's Cafew 7: Ca Si Alod this may be done either exprefly, as
when the Succafion dathi adually agree to the Leafe or Grant of hiş
Predeceffor, 5 E.:44. Tos, or implicitly by fome Act which amounts
to an Agreement in Law... And in this, as in all Cafes, of Conditions
broken, whatſoever Act amounts to the affirming the Leafe to have
Continuance, is in Lawan Agreement to the forme Demiſe ; and a
Leafe may be affirmed firſt, by Acceptance of Rent incurred after the Lcafe ale mama
Death of the Predeceſtor. Pafche 13 Hac, B. Ra Brook Abor. tit. Able ed, hovo
& Prior 26. Magdalen: College's Cafe. t Roll's Repo 15. Miçb.. 2 Car.
C. B. Owen v. Thomas app Ressá: 1. Cr. 95. But here, we muft re+ How void.
gard the Difference betwixt Loafcs that are only voidable and Leales
that are aduallyi void: For when Leaſes are abfolutely void, thạt įs,
without Entry or any other Ceremony, the Sueceffok's Acceptance of
Rent incurred will not affirm fuck Leafe; otherwiſe it is of Leafes
that are but voidable. Brook Abr. tit. Acceptance 7. Accordingly, if
a Biſhop doth let a Portion of Tithes for Lives reforving the ancient by a Biſhop
Rent, and the Succeffor doth accept the Rent, this Aççeptance of the for Lives.
Rent ſhall not bind the Succeflar, becaufe the Loafe was abſolutely
void by the Biſhop's: Death, c. that made it without Entry or other
Ceremony: the Reafon is, becauſe Tithes let alone are Things that
lie in prender, out of which a Rent cannot be referved, recoverable by
the Succeſſors or next Incumbent.when the Leafe is for Liveș. Trix. 5
Jac. B. R. Rickman y. Garth. Cro. 173. And therefore being
that the Succeſſor's Acceptance of the Reit due at one Day will not
enable him to ſue for it, if afterwards denied he ſhall not be bound
by ſuch Acceptance, and the Law is the fame alſo to all other Things
not manurable. But if the Tithes had been det for Years, the Suceet Tithes let
for’s Acceptance of the Rent would have bound him during his Time, for Years.
becauſe then he may have an Action of Debt for the Rent: See the
Fifth Rule before, in Chap. 42. And as to this Matter, there is a
Difference alſo betwixt thoſe that have the fee-fimple abfolutely in
themſelves, as Biſhops, Deans and Chapters, Masters and Fellows of
Colleges, &c. and thoſe that have but a qualified Fee-fimple, as Para
fons, Vicars, Prebends, and others that :be Preſentative of Collative,
not Elective ; for if any of the former Sort make voidable Leafos
for Lives or Years not warranted by the Statutes, if the Succeſſor doth
accept the Rent before Entry to make ſuch Leafles void, be the Leafe
for Lives or Years, he affirms it for his Time. But if a Parſon, Vicar,
Prebend, &c. doth make a Leafe for One and twenty. Years, rendring
Rent, not warranted by the Statutes, and dies, the Leaſe is abſolutely
void by the Death, 1 Taft. 45. b. and no Acceptance of the Rent by
the Succellor will affirm it, becauſe the ſame is void without Entry or
other Ceremony. 32. H. 8. Bro. tit. Denn 20. Bro. tit. Acceptaice
9 & 11. Pafch. 4 Car. G. B. Johnſon's Cafe. Hetley 88. 24 H. 8.
Brook's
480
The Clergy-Man's Law: Or, Chap. XLV.
C.
Lcflor and
Leales void, Brook's Novel Caſes. fol. 10. Placito 54. But if a Parſon, &c. doth
make a Leaſe not warranted by the Statutes for Life or Lives, it is
only voidable, not void by Death, 1 Inft
: 45. b. and if the Succeilor be-
fore Entry to avoid it doth accept the Rent, this Acceptance ſhall
bind him for his Time, becauſe this being an Eſtate of Freehold, which
is very much regarded in Law, the Law allows it this Privilege, a-
mongſt ſeveral others, not to be void before an Entry when the Eſtate
is out of Lands, or the like, into which an Entry may be made. 32 H.
8. Bro. Dean and Chapter 20. Hill, 13 7ac. Maund v. French Bridg-
man 94, and by Dodderidge: Paſch. 14 Jac. in Maund and French's
Cafe. i Roll's Rep. 362. Trin. 7 Eliz. Dyer 239. Paſch. 39 Eliz.
Overton v. Sydal. Popham 120. And this Difference concerning thoſe
that have an abſolute Fee, as Biſhops, &c. and Parſons, Gc. who have
but à qualified Fee, was obſerved at the Common Law. before the
Statutes were made. Mich. 33. H. 8. Dyer 46. Plowd. 264. a. Vide L.
5 E. 4. 105.
And it is here to be obſerved, that ſo far as the Leſſor is bound by
Lefſee, &c. ſuch void or voidable Leaſe, fo far alſo the Leſſee, his Executors of
bound alike. Aſſigns, which of them have the Intereſt
, are bound thereby, and no
farther ; therefore when the Leafe is not void without Entry, if Rent
be in arrear after the Death of the Predeceſſor, the Succeſſor hath Re-
medy to recover ſuch Arrears, if he doth chuſe to affirm the Leaſe
but if the Leaſe be abſolutely void, the Succeſſor hath no Remedy at
Law for any Rent incurred after the Death of his Predeceſſor. Paſch.
39 El. Overton v. Sydal. Popham 121, and by Anderſon. Mich. 32
& 33 El. C. B. Carter and Claycole's Cafe. i Leonard 309. So in like
Manner the Lefſee of a voidable Leafe, after the Death of the Leſſor,
may maintain an Action of Treſpaſs againſt the Stranger who ſhall en-
ter or do any other Treſpaſs upon the Land before the Leaſe be actu-
ally avoided ; by Periam in the ſaid Caſe of Carter and Claycole.
i Leonard 309. And what is ſaid with reſpect to Leafes defective up-
on Account of the Statutes, holds good as to Leafes defective for want
of due Confirmation. Trin. 7 Eliz. Dyer 239, and by Dodderidge.
Paſch. 14 Jac. B. R. Maund v. French. i Rolls Rep. 361.
Though, as hath been ſaid, a Leaſe may be affirmed by the Ac-
by Rent duly ceptance of Rent, yet this is to be underſtood to hold true only when
accepted.
the Rent is duly accepted ; therefore, if a Biſhop doth accept of Rent
before Reſtitution of the Temporalities, this Acceptance ſhall not con-
clude him or bar him of Entry. Paſch. 19 Fac. B. R. the Biſhop of
Oxford's Cafe, Paliner 175. So when a Maſter of a College, or any
Head of a Corporation aggregate, doth accept a Rent payable by
a voidable Leafe, this ſhall not affirm the Leafe during ſuch Maſter or
Head's Life or Continuance, that is, unlefs fuch Maſter, &c. had an
Authority from the Corporation to accept the fame ; for inaſmuch as
fuch Bodies Politick do conſiſt of many, the Maſter alone cannot de-
veſt any Right, which is as much in the Fellows or other Members
of the College, &c. as in himſelf, or conclude them of their
Entry upon any voidable Leaſe. Pafch. 13 Jac. the Caſe of the Ma-
ſter and Fellows of Magdalen College. II Co. 79, the fame Cafe.
1 Roll's Rep. p. 100.
Acceptance
If a Biſhop's Bailiff of his own Head, and without any Order from
by Biſhop's the Biſhop, doth receive Rent, (the Leaſe being voidable) this ſhall
Bailiff, where
binding or
not bind the Biſhop. Dorothy Òwen and Owen Price's Cafe. Trin.
3 Car. C. B. Hetley 24. But if a Biſhop doth leaſe for Life certain
Lands,
Affirmance
not.
3
Chap. XLV. The Complete Incumbent. 481
Esc.
Lands, Parcel of the Manor of H. reſerving Rent, (which Leaſe for Leales voisi
fome Reaſon is voidable, and ſhall not bind the Succeſſor) and dies,
and another Biſhop is made, and the Bailiff of the ſaid Manor doth
come to him, and ſhew him in general Manner, that there be certain
Rents in arrear of the ſaid Manor ; upon which the Biſhop doth com-
mand him to receive the ſaid Rents, and he receives them according-
ly, and entreth the Rent reſerved upon the voidable Leaſe to be re-
ceived, and after doth pay all the Rents to the Biſhop without giving
him Notice of the faid voidable Leaſe, this is a good Confirmation
thereof; for the Biſhop ought of himſelf to take Notice what Leaſes
were made by his Predeceſſor; per Curiam. 5 Fac. Wheeler and Dana
by's Cafe. 1 Roll's Abr. p. 476 D. Hetley 26.
As by the Acceptance of Rent a voidable Leaſe may be affirmed; Affirmance
ſo may it be by diſtraining for Rent due at a Day after the Death of by a Diſtreſs,
the Predeceſſor, or by bringing an Action of Walte againſt the Leſſee.
And in caſe the Leaſe be for Life, by bringing an Alize for the Rent
due after the Death of the Predeceſſor, but no Allize can be brought
of a Rent reſerved upon a Leafe for Years : For an Aflize cannot be
brought of ſuch 'Things whereof a Man hath a Freehold that is an
Eſtate for Life at the leaſt, except an Alize of Darrein Preſentment,
which, as hath been ſaid. Chap. 22, may be brought by Tenant for
Years, or at Will. Alſo if a Parſon doth accept of Fealty from the
Leſſee for Life of his Predeceſſor, he thereby affirms his voidable Leaſe
for his own Time. Trin. 7 Eliz. Dyer 239. 42. 11 E. 3. Fitz. Ab-
bot 9. Bro. tit. Acceptance. 12. 15.
But on the other Hand, if a Succeſſor will make a voidable Leafe Leaſe voided
actually void, this he may do either by Entry, viz. where the Leaſe by Entry,&fc.
is of Things corporeal and manurable, and till then the Leaſe remains
good. Paſch. 5 Eliz. Ayer v. Ome. Dyer 222. Or by Claim, when
the Leaſe is of Things incorporeal : But where a Leaſe for Years is
made, rendring Rent, upon Condition to be void for Non-payment,
this Leaſe ſhall not be void without Demand made of the Rent, for if
it ſhould be otherwiſe, then were it in the Power of the Leſſee to
make the Leaſe void at any Rent-Day he pleaſeth, and by that Means
to add the Wrong making the Leaſe void to that of Non-payment of
the Rent. Mich. 31 & 32 Car.,2. C. B. Young v. Wright, i Siderfir
7.
But when by theſe Means a Leaſe is once made void, it can never
be revived again, but remains void againſt all After-Succeſſors. Pafch.
16 Car. Oldfield v. Plowden. Fones 454.
As to making an Entry, this may be done either by the Party's Bai- How an En-
liff that would enter, or by other Perfons deputed for that Purpoſe ; made.
but a Bailiff, by Vertue of his Office, cannot make an Entry for his
Maſter without ſpecial Warrant, becauſe his Office is to manage his
Maſters Lands, and to make the Profits thereof to his Maſter's Uſe;
but to gain new Land which bis Maſter had not, belongs not to the Office
of a Bailiff. Beſides, an Entry is a Thing which the Maſter may or
may not make, and his Bailiff ſhall not determine his Election in
Eire's Cafe. Moor 52. Pafch. 5 Eliz. C. B. Ayer v. Oine. Dyer 222.
Neither can a Corporation aggregate command their Bailiff to enter
for a Condition broken, unleſs it be by Deed, for ſuch Command and
Entry without Deed is void. Pafch. 43 Eliz. B. R. Dumper and
Syms's Caſe. I Roll's Abr. 514. k. 18 E. 4. 8. Br. Corporation 59.
per Curiam, he that diſtrains as Bailiff of a Corporation, and is
not Bailiff, may make Conuſance, &c. and if the Corporation agree
Dddd
therete
try may be
j
Yet
482
The Clergy-Man's Law: Or, Chap. XLV.
c.
New Leaſe
livery
Leales void, thereto it is good without Deed, for that the Command he had to di
ſtrain is not in ſuch Cafe traverſable, as was refolved in a Cafe where
onc of the Members of the Corporation did diftrain in the Name and
Right of the Corporation without any warrant in Writing. 26 H. 8.
8. Br. Corporations, &c. 2. But a Biſhop by Word may command
his Servant to demand a Rent, or to make an Entry. Mich. 15 Eliz.
B. R. Wood v. Chiver. 4 Leon. 179.
And as to Corporations aggregate in the Caſe of Leaſes becoming
by a Corpo void, it hath been held, that where a Dean and Chapter made a Leafe
gate before for Years rendring Rent, and for Default of Payment the Leafe to be
any Entry void, the Rent was arrear and not paid, they make a new Leaſe to
another Perſon, ſealed in their Chapter-Houſe before any Entry made
upon the firſt Leſſee, and make a Letter of Attorney to one to enter,
and make Delivery of this Leaſe upon the Land, this was a good
Leaſe, although it was in this Cafe objected that the Dean and Chap-
ter being out of Poffeffion, and the firſt Leſſee in Poffefſion, and they
fetting their Şeal to the new Leaſe in their Chapter-Houſe did perfcét
it as the Deed of the Corporation; ſo that there can be no other De-
of its and therefore the Leaſe was void for wanc of an Entry
before the Leafe made, and the After-Delivery by the Attorney was
void, by reaſon it was perfect before ; but it was anſwered, that there
was no other Means for a Corporation to make a Leafe but this:
And
Gawdy ſaid, that it is not the Leafe or Deed of the Corporation un-
til Delivery as of another Perſon. Hill. 31 Eliz. Willis v. Jerinin.
3 Cro. 167, the ſame Caſe, 2 Leonard 97. Yet it's faid to be agreed,
that if a Dean and Chapter put their Chapter-Seal to a Deed, this is
a perfect Deed thereby, without Delivery. Davis Rep. 44. b. the Dean
and Chapter of Fernes. Hill. 32 Eliz. B. R. Fermin v. Willis. 2
Roll's Abr. 23. But this is to be underſtood when the Dean and Chap-
ter are in Poffeflion, as in the Caſe laſt put. Mich. 13 Car. B. R.
Flud v. Gregory. 2 Roll's Abr. 24.
Livery and And note, That in the Caſe of a Corporation aggregate, if they
Seiſin
by Let-
make a Charter of Feoffment, and a Letter of Attorney to deliver
ney of a Con- Seiſin, the Livery of Seiſin is good after the Death of him that is the
gregation
Head of ſuch Corporation, but otherwiſe it is in the Caſe of the fole
Corporations ; for albeit the Warrant of Attorney be indefinite, yet
the Law preſcribeth that it muſt be executed in the Life-time of him
that made it, and the Death not only of the Feoffor, but alſo of the
Feoffee, is a Countermand in Law of the Letter of Attorney, and the
Deed it felf is thereby become of none Effect. i Inft. 52. b.
Leaſe to
And note, That if a Leaſe be made to Two for their Lives d diz-
longer Liver tius eorum viventi, and the Leſſees do make Partition, and then one
of them doth die, the Leſſor may enter into his Part ſo dying, for
there ſhall be no other Occupancy of his Eftate, the Words diutius
eorun viventi not being more than the Law doth ſay, and by the Par-
rition the Jointenancy is fevered. 30 AN. 8. 2 Roll's Abr. 150. So En-
try may be made for Condition broken in the Life of the Predeceſſor,
or in the Time of the Vacation, as the Heir may do for Condition
broken in the Life of his Father; for otherwiſe it is of Conditions in
Law, as Waſte, Forfeiture, and the like. Eirt's Cafe. Moor 52.
If a Leaſe be made with a Clauſe, that it ſhall be void upon
Non-
payment of the Rent, yet before it ſhall be void, the Leſſor ought to
make Demand of the Rent at the Place where the Rent was made
payable. Triu. 37 Eliz. Tuskin v. Edmund. Moor 403. And as to a
ter of Attor-
fole or ago
gregate.
of them.
Void upon
Non-pay-
ment.
I
De-
Chap. XLV. The Complete Incumbent.
483
Sec.
а.
upon Demand of a
any
Demand to be made of any, Rent whereby to make a Re-entry, or Leales void,
take Advantage of the Breach of a Condition in a Leaſe, theſe 'Things
are to be obſerved : Firſt, That the Demand muſt be made upon the Nota, of a
Land, and at the moſt notorious Place of it, if there be Houſe
Rent, Eco
the Land, and the Demand muſt be made at the Houſe, and at the
Fore-door of the Houſe. Secondly, If the Rent be made payable at
Place from the Land, it muſt be demanded at the place where
by Agreement of the Parties it is to be paid, obſerving that which
hath been ſaid before of the moſt notorious Place. Thirdly, 'The De-
mand is to be made ſuch a convenient Time before the Sun-ſetting of
the laſt Day on which the Rent is payable, as the Money may be num-
bred and received. 1 Inft. 101, 202. Fourthly, The Demand muſt be
certain in the Sum demanded, for if one Penny more or leſs Rent be
demanded than is due, or if a Certainty of the Rent be not ſhewed,
and the Day when it was due, it is not a good Demand. Moor 207. Mich.
31 & 32 Éliz. C. B. Fabian v. Windſor. i Leon. 305. Dalliſon 35.
So if there be ſeveral half Years Rent in arrear, the Demand muſt
not be of the whole Sum fo behind as of one entire Rent, but the
half Year's Rent then due muſt be demanded, and ſo much in arrear
before; for where a Leaſe for Years was made rendring Seven Pounds
Rent per Annum, and there being Three Pounds behind, and at the
next Day of Payment the Leflor demands Ten Pounds, this was held
to be no good Demand, becauſe the Rent and Arrear were demanded
as an entire Sum ; by Roll's. Mich. 24 Car. B. R. Allen 95. And if
the Leſſor doth come upon the Land at any Time of the Day when
the Rent is due and payable, and demands the Rent, and doth conti-
nue upon the Land till the Sun be ſet without making any other De-
mand, yet the Demand is good enough, for his Prefence there is a Con-
tinuance of the Demand, (per Curiam.) Or if the Leſſor after his
Demand in the Morning doth depart off the Land, and before the
Sun-ſet returneth, and ſtays upon the Land till Sut-ſetting, this is a
Continuance of the Demand, and a further Demand is not neceſſary;
by Wray and Catlin. But if the Leſſor doth come to the Land be-
fore the laſt Hour and demands the Rent, and afterwards goes off the
Land, and is not there at the laſt Inſtant of the Day, the fame is not
a ſufficient Demand, although that he return preſently after the Sun is
ſet : So if the Leffor's Attorney, viz. he whom he gives Authority to
demand the Rent, doth before Sun-ſetting demand the Rent at the
capital Meſſuage, and then goeth his Way, but leaves his Servant in
the Houſe with Order, that if any Perfon did come to pay the Rent
he ſhould ſignifie it to him, and returneth not again till after the Sun
was fet; this Continuance of the Servant is no Continuance of the
Demand, for that the Attorney was but as a Servant himſelf in this
Buſineſs, and therefore could not appoint another in his Stead. Mich.
15 Eliz. B. R. Wood v. Chiver. 4 Leonard 179.
If a concurrent Leaſe be made, and there be a Covenant therein, Upon a Cove
that if the Leffce without the Licence of the Leſſor and his Succef-
fors ſhall grant over his Eſtate, it ſhall be lawful for the Leſſor and Leafe.
his Succeſſors to re-enter ; in' this Caſe, although the Leſſee doth
grant over his Eſtate without Licence, yet the Leſſor cannot enter
during the firſt Leaſe. Mich. 1 & 2 Ph. & Mar. Ernley v. Walron.
nant in a
concurrent
Dyer.
D d d d 2
Though
i
484
The Clergy-Man's Law: Or, Chap. XLV.
Leales voie,
Erio
of a Difcon-
tinuance.
Nota.
Tho' Entry is the Means of making a voidable Leafe void, as alſo of
regaining an Eſtate that was aliened by the Predeceſſor, &c. yet at the
The Efe&t Common Law, in the Caſe of Alienation, Entry was not always lawful,
or of any Effect, that is, where there was a Diſcontinuance; for the Et
fect of Difcontinuance is commonly tlus, that it prevents a Man from
entring upon the Land or Tenements alienated by his own Authority, but
he muſt bring his Action, and feck to recover his Poffefſion by Law. But
at Common Law every Ecclefiaftical Peiſon was not capable of making
a Difcontinuance, but only thofe that had an abfolute Right or Fee
in their poffeffions, as Biſhops, c. but not Parfons, Vicars, Prebends
,
nor any others. that are preſentative, and have but a qualified Right;
for the Succeſſors of ſuch might cver have entred, and were not dri
ven to their real Action by any Ax of their Predecellors
. Paſch. 4 Car.
C. B. Johnſon's Cafe. Hetley 88. But at this Day, neither a Bifhop,
Dean, Maſter of an Hoſpital, &c. that have the Fee and Right in
them, can diſcontinue any of their Poffeffions, or bar their Succeſſors
of Entry, c. by reafon of the Statutes of 1 & 13 Eliz. 1 Inft
. 342.
a. Pafch. 2 Car. C. B. Water v. Jackſon. 1 Rolls Abr. 633. And it
is to be obferved, that the Remedy is ever agreeable to the Right;
Remedy a-
therefore a Biſhop, Dean, Maſter of an Hoſpital, or the like, that
greeable to hath a College and Common Seal, ſhall have a Writ of Right, which
the Right.
is the higheſt Remedy the Law gives; for that they have the higheſt
Eſtate, and they ſhall not have Aid in reſpect of their high and large E-
ſtate, albeit any of them be preſentable ; but a Dean that is collative
ſhall have Aid of the King, but a Parſon or Vicar cannot have a Writ
of Right, the higheſt Writ that they can have is the Writ of Juris
Juris utrum Utrum. i Inft
. f. 431. b. 342. a. and this lies for the Succeſſor of eve-
ry
Parfon or Vicar who have not the abfolute Right in then, and
Right. cannot maintain a Writ of Right, but not for the Succellor of a Pre-
bend or Provoſt in a Cathedral Church without the Conſent of the
Chapter ; eſpecially where the Body of the Prebend or Provoſtry is a
Parfonage, and not a Lay-Fec. And many Books prove that they
ſhall have Aid of the Biſhop, as Patron and Ordinary, in any Action
in which they ſhall be charged, and fo all Clerks preſentative fhall
have Aid of their Patrons and Ordinaries. 1 Roll's Abr. 175. Trin. 7
Eliz. C. B. Hodgskins v. I wcker. Dyer 239, though the Patron be
within Age. i Roll's Abr. 145. And if there be many Patrons, as Co-
parceners, though they make Compoſition to preſent by Turns, they
fhall have Aid of them all. Lancaſter v. Lucas. Mich. 32 & 33 Eliz.
B.R. 1 Leonard 234. Harris's Cafe. Noy it, and ſo it is if a Writ
of Annuity be brought againſt the Parfon, ibid. in thefe Cafes, and the
like, he muſt pray Aid of the Ordinary when he prays Aid of his Pa-
tron; for when an Annuity was brought againſt a Parſon, who prayed
Aid only of the King, it was agreed by the Court to be ill, becauſe
he did not pray Aid alſo of the Ordinary, for it is all one in the Cafe
muł be instant of the King as of a common Patron. Harris's Cafe. Noy 11. But the
ducted, E96. Parfon who prays in Aid muſt be as well inducted as inſtituted, for
when he prays in Aid of the Patron and Ordinary he ought to ſay,
that he is a Parfon imparfonee of his Church, and found his Church
difcharged of this Annuity, c. which he cannot ſay without In-
duction. Hare v. Bickley. Trin. 20 Eliz. C. B. Plowden 529,
If a Writ of Annuity be brought againſt a Parſon that prays in Aid
Default
, of the Patron and Ordinary, who being ſummoned make Default, and
Judg-
whicre no
Writ of
.
Such parfon
No Aid after
ou
Chap. XLV. The Complete Incumbent.
485
poprio
ز
ages
nary,
Judgment is given againlt the Defendant by Action tried, or Confef- Leares veid,
Tion, Default of the Parſon after Appearance; he himſelf in a Scire
Facias after ſhall not have Aid, neither ſhall the Succeffor have it,
if the Scire Facias be afterwards brought againſt him upon this Judga
ment. Br. tit. Aid 29 & 76. Jenkins Cent 1. Cafe 98. p. 51. Cent. 2.
Cafe 15. p. 61. 29 E. 3. tit. Scire Facias in Fitz. 152. contra Br. tit,
Aid 24, & 72. After Judgment in Annuity once had, a Scire Facias
upon this Judgment ſhall be only brought for the Recovery of Arrear-
incurred before, and the Arrearages incurred pendant the Writ
ſhall be recovered by the Scire Facias ; and if the Annuity be deter-
mined, a Scire Facias doth not lie for the Arrears, but an Action of
Debt, for a Scire Facias is in the Place of a Writ of Annuity. Jen=
kins Cent. 1. Cafe 98. p. 51. If the Parfon in a Writ of Annuity
hath Aid of the Metropolitan Guardian of the Spiritualities as Ordi-
he ſhall not have a new Aid of a new Bifhop when created;
ſo if he hath Aid of the Ordinary, who dies, he ſhall not thereupon
have Aid of the Metropolitan, Warden of the Spiritualities, nor of
the fucceeding Biſhop. i Roll's Abr. 188. A Defendant in a Writ of
Annuity pleaded, that the Biſhop was Patron of the Benefice charged,
and that his Temporalities were in the Hands of the King, therefore
prayed Aid of the King, and of the Biſhop as Patron and Ordinary, and
of the Dean and Chapter, for that the Parfonage appertained to the
Chauntor as one of the Chapter, and Aid was granted of them all.
Br. tit. Aid. 12. 18.
And note, That ſuch Perſons as have not the meer Right in them, Judgment a-
but a qualified Right, as Parſons, Prebends, &c. if they be barred in
gainſt having
a qualified
a real Action without making them Parties who have Intereſt, yet this Right, Egoce
ſhall not bind the Succeſſor, but that he in a new Action of the fame
Nature brought ſhall falſify the Recovery ; neither is a Judgment given
in ſuch Cafe any Diſcontinuance, but the Succeſſor may enter ; other-
wiſe it is of an Abbot, Biſhop, or the like, who have the entire Fce-
ſimple in them ; for their Succeſſor at the Common Law ſhall not fal-
ſify in a Scire Facias or new Action of the fame Nature. The ſame
Law when Recovery is had againſt them, for it hath been adjudged,
that in a Writ of Right againſt a Parſon who after the Mife joined
made Default, whereupon Judgment was given againſt him; yet the
Succeſſor might have Juris utrum, becauſe he had not the meer Right,
nor had prayed in Aid of the Patron and Ordinary. And if a Parſon,
Vicar, or Prebendz. &c. loſe by Default in a real Action, he himſelf
may have a Juris utrum, for that is his Writ of Right, as is ſaid,
Regift. 32. b. And it would be againſt Reaſon that he ſhould have
no Remedy in ſuch Cafe, the fame being the Right of the Church,
which is favoured in Law. Mich. 40 & 41 Eliz. C. B. Ferrer's Cafe.
But ſee more concerning this Matter. I Roll's Abr. tit. Aid. & Bri
rit. Aid. del Roy'.
СНАР.
486
The Clergy-Man's Law: Or, Chap. XLVI.
Titles.
CHAP. XLVI.
Tithes, of what due. Tithes in London, how
payable. Tithes of Houſes.
pomerning Having fhewed
Duties.
not to be
ton2.
JAving ſhewed what are the Effects of a legal Poſſeſſion of an Ec-
cleſiaſtical Benefice or Proniotion, and what Eſtates, Grants, and
otherChurch Lcaſes, may be made thereof; I am further to ſpeak of the Profits them-
ſelves, and to ſhew what the Profits be that may belong to any Eccleſi-
aſtical Benefice or Promotion. Theſe (not to ſpeak of Lands, of which
nothing need to be ſaid in this Place) do principally conſiſt of Tithes :
As to which, Two Things in general are only needful to be ſhewed ;
Firſt, For what, and of what Things, Tithes ought, or ought not to
be paid. Secondly, What Remedy
the Law hath given the Owner for
the Recovery of them, and other Church Duties, being detained.
Tithes ought
As to the Firſt, it muſt be noted, that de Jure communi Tithes are
paid of
to be paid for ſuch 'Things only which do yield a yearly. Increaſe by
Quarries. the Act of God, and therefore of common Right no Tithes are to be
paid of Quarries of Stone or Slate, for that they are Parcel of the
Freehold, and the Parfon hath Tithes of the Graſs or Corn which
grow upon
the Surface of the Land in which the Quarry is. Paſch.
34 Eliz. C. B. Lyſs v. Wats. 3 Cro. 277, fame Cafe. Moor 908. Hill.
11 Fac. B.J. Per Curiam. i Roll's Abr. 637. 26 Eliz. B. R. Daws
v. Mollins. 2 Leon. 79. Nor for Coal. Hill. 14 Jac. B. R. by Hauh-
i Roll's Abr. 637. Paſch. 34 Eliz. Lib. v. Watts. Moor 908.
Nor of Turf which is to burn. Hill. 14 Jac. B. R. by Haughton, and
Hill
. 11 Jac. B. R. Per Guriam. I Roll's Abr. 637. Mich. 28 & 29
Eliz. B. R. Godbolt p. 44. Nor for Lime. Mich. 13 Jac. C. B. Tho-
mas and Perrie's Cafés. Per Curiam. i Roll's Abr. 637. 2 Inft. 651.
Hill. 21 & 22 Car. 2. Amiers v. Chambers. 2 Keb. 596, and Ray-
mond 425. Yet of a Lime-Kiln by Cuſtom Tithes ſhall be paid.
i Roll's Abr. 642, and fo. by Cuſtom Tithes ſhall be paid of white
Şalt. Trin. 16 7ac. B. R. Fones and Goward's Cafe. I Roll's Abr.
642. So a Modus may be of the Tithes of Iron Oar. Mich. 27 Car.
2. Andrews V. Sympſon. 3 Keb. 527. No Tithes ſhall be paid for
Brick, becauſe 'tis Part of the Soil, and 'tis ſaid to have been often ad-
judged. Pafch. 28 Car. 2. C. B. Stout fil's Cafe. 2 Mod. Rep. 77.
Nor for Houſes which be for Habitation, nor for other Buildings; nor
for any Rent reſerved upon a Demiſe of any ſuch Houſe or Building,
being created meerly by the Act of the Party: Mich. 11 Fac. C. B.
Doctor Grant's Café. 11 Co. 16. Doctor Leyfield, v. Tiſdal. Hobart
p. 11. If a Man purchaſe an Houſe for 300 1. and doth fell it again
within a ſhort Time after for 500 l. yet no 'Tithes ſhall be paid of the
Gain thereof made, for this is againſt the Common Law : Reſolved
Mich. 11 Fac. B. R. Daires and Tollin's Caſe. i Roll's Abr. 657.
Cuſtoms for But though not of Common Right, yet by Cuſtom, Tithes may be
Houſes by paid for Houſes by the Rent reſerved upon a Demiſe thereof; to
which Purpoſe is the Caſe of Doctor Gränt, which is as followeth,
Gabriel Grant Doctor in Divinity, Parſon of the Pariſh of St. Leonard
in Foſter-Lane, infra Precinctum Sancti Martini le Grand, did libel
T
in
2
Chap. XLVI. The Complete Incumbent.
487
London.
in the Spiritual Court before Dr. Maſters, Official of the Dean and Titles in
Chapter of Weſtminſter, againk Edward Taylor, Farmer of a great
and ancient Houfe called The Dean's Houſe, within the Precinct of
St. Martin le Grand, late Parcel of the Poſſeſſions of the Abbot of
Weſtminſter, and alledged, that every Pariſhioner or Inhabitant having
or occupying a Marſion-Houſe, Shops, Ware-Houſes, Cellars or Sta-
bles, within the ſaid Pariſh of St. Leonard within St. Martin's le Grand,
hath paid yearly every Quarter of the Year at the Feaſts of Eafter,
the Birth of Chriſt, St. John the Baptiſt, and St. Michael, Time out
of Mind, &c. or at leaſt from the Foundation, Donation and Erection
of the ſaid Rectory of St. Leonard, by equal Portions to thc Parſons
of the ſaid Rectory for the Time being, Nomine loco decimarum fua-
rum juxta ratam cujuſlibet viginti ſolidor' redditus per annum ex qua-
libet hujuſmodi Domo, Shopa, Sollar', Sellar', five Stabulo sic tent '
fisse occupatº in prædi&ta Parochia, duos folidos legalis Moneta Anglia;
Bc. And that the ſaid Edward Taylor, and his Family, did dwell in
the faid Houſe Three Years, and had poſſeſſed the ſame for the ſame
Time ſub annuali redditu ſexdecim librarum, feu faltem duodecim li-
brarun, doc. and ſo demanded Two Shillings in the Pound, &c. The
ſaid Edward Taylor did exhibit an Information and Suggeſtion to the
Court, that the late Abbot of Weſtoninfter, and all his Predeceſſors
till the Diſſolution of the ſaid Monaſtery, which was Anno 30 H. 8;
had held the faid Houſe diſcharged of Tithes, and alledged the Sta-
tute of 31 H. 8, concerning the Diſcharge of the Payment of Tithes,
and conveyed to himſelf a Leaſe for Years, and thereupon had a Pro-
hibition, to which the ſaid Doctor Grant appeared, and Taylor declared
againſt him to the Effect aforeſaid, and Doctor Grant traverſed the Traverſe of
ſaid Preſcription of Diſcharge of Tithes, whereupon Iſſue was joined, Preſcription.
and tried in London for Doctor Grant : But it was moved by Taylor's
Counſel, that
upon
the ſaid Libel no Conſultation ought to be granted,
for of common Right no Tithes ought to be paid for Houſes of Habi-
tation, nor for any Rent reſerved upon any Leaſe of them; for Tithes
ought to be paid of Things which grow and renew Year by Year by the
Act of God. Regiſt. 53. b. F. N.B. 54 tit. Diſines 16, and not for Dwel-
ling-houſes, or Rents iſſuing out of Lands reſerved, and created only
and meerly by the Act of the Party; and therefore in the City of
London the Parſons have Two Shillings Eight Pence in the Pound, 66.
in the Name of Tithes; but the ſame is by Decree made Anno 1535,
which is enacted and confirmed by Authority of Parliament, Anno 37
H. cap. 12. But St. Martin's le Grand is not included within the ſaid St. Martin's le
Decree and Act; for tho' the fame is within London, yet 'tis not of it, within the
and therefore it remaineth at the Common Law. And in 30 E. 3. Decrce for
fol. 1. a. 38 E. 3. fol. 13, by Finchden it is ſaid, that the Profits of
the Churches in London are the Oblations and Obventions. But it
was reſolved by the whole Court, that a Conſultation ſhould be grant-
ed, for it may have a lawful Beginning; for it may be, that for all
the Tithes of Land upon which the Houſes are built, this Modus De-
cimandi hath Time out of Mind been paid, and although the fame
be after built, that ſhall not take away the Right of the Parfon in
ſuch Cafe ; and becauſe it might have a lawfuſ Beginning, and the
ſame hath been uſed Time out of Mind, &c. for this Cauſe it was
reſolved that a Confultation ſhould be granted. It was alſo reſolved,
that for this Cuſtomary Payment of Monies he might ſue in the Ec-
cleſiaſtical Court, becauſe it is in the Name of Tithes, viz. Modus Deci-
mandi
Londoni
1
488
The Clergy-Man's Law: Or, Chap. XLVI.
London.
Rents,
Caſe for
Tithes of
Stablcsi
upon thc
Tithes in mandi, and every ancient City and Borough hath for the moſt Part ſuch
Cuſtom de modo Decimandi for their Houſes for the Maintenance of
their Parſons. And as to the Opinions of 30 E. 3. & 38 E. 3. it was ſaid,
that Obventio dicitur ab obueniendo, and includeth Oblations,
and other Revenues, which may well agree with the Reſolution be-
fore, and a Conſultation was granted. Mich. 11 Jac. C. B. Dr. Grant's
Cafe, 11. CO. 16.
Dr. Lyefield's And afterwards Doctor Lyefield, Parſon of St. Clements without Tem-
ple-Bar, which is alſo out of London and the Liberty thereof, ſued
for Tithes of certain Stables ; and libelled, that by common Right, and by
Preſcription Time out of Mind, the Parſons there uſed to have a Modus
Decimandi for the Houſes, Stables, and Buildings, that is to ſay, af-
ter the Rate of the Tenth Part of the yearly Rent, or the Value of
the ſame, and upon this Surmiſc a Prohibition was granted; but the
Cafe being after moved for the Defendant, and upon urging Dr. Grant's
Cafe, it was ordered by the Court, that they ſhould declare
Prohibition, and ſo bring the Matter to be determined judicially by the
Court. Dr. Leyfield v. Tiſdal, Hobart p. 11. Alſo the Proviſo in the
Statute of 2 & 3 E. 6. cap. 13, doth ſuppoſe that ſuch Modus may be,
which is this: Drovided always, and be it enacted by the authority a.
forelaid, That this ax, or any Thing therein contained, ſhall not er.
tend in any wiſe to the Inbabitants of the City of London and Can-
terbury, and the Suburbs of the ſame, noz to any other Town oz
Place that hath uſed to pay their Tithes by their youles, otherwiſe
than they ought or ſhould have done before the making of this Act ;
any Thing contained in this ad to the contrary in any wiſe notwith:
ftanding. But it is ſaid to be ruled, Trin. 31. Eliz. in the Lady
Greſham's Cafe, where one preſcribed to pay yearly by the Hands of
Preſcriptions Two Perſons inhabiting in ſuch Houſes, Four Pence to the Vicar, in Sa-
tisfaction of all Tithes, that the Preſcription was not good, for the
Houſes may decay, or none may live in them, ſo nothing ſhould be
paid. Trin. 3 Eliz. B. R. Perry v. Sean. 3 Cro. 139. Yet if a Cu-
ſtom be, that the Inhabitants of a Pariſh ſhall pay in full Satisfaction
of all Tithes, after the Rate of the Tenth Part of the yearly Rent
or Value of their Land and Houſes, whilſt any ſhall remain there, it is
good; for in ſuch Cafe, the Rent of the Houſe with the Land is but
the Meaſure of the Rate to be paid in Money. But a Suggeſtion that
all the Occupiers of Land within ſuch a Vill have uſed to pay 2 5. 6d.
in full of all the Tithes of the ſaid Vill, was held by the Court not
to be good, there being no Remedy to compel any that refuſe to con-
tribute ; but if it had been that quilibet Occupator had uſed to
pay,
it
had been good. Mich. 19 Car. 2. Keb. 280. So a Cuſtom, that all
Occupiers and Tenants that are Inhabitants in any Place out of the
Pariſh, ſhall pay to the Vicar 4d. for every Acre, was held an unrca-
fonable Cuſtom, not being fixed to the Land, nor to any perſon cer-
tain. Mich. 15 Car. 2. 1 Keb. 602.
Cuftom in
But a Cuſtom to pay for Tenants and Occupiers of Land ſo much
Diſcharge of in Diſcharge of Tithes, was held good, it being in Diſcharge only, and
not claiming any Intereſt. Hill. 5 W. & M. C. B. S:opp. v. Peacocke.
3 Leoiz. 386.
But the Tithes of Houſes in London are fettled by Statute-Law, for
it hath been enacted as followed: TUhere of late Time Contention,
Strife and Mariance hath riſen and grown within the City of Lon-
don, and the Liberties of the ſaines between the Parſons, ticars and
Curates
for Houſes
and Lands.
Tithcs.
Tithes of
Houſes in
Lordon.
I
Chap. XLVI. The Complete Incumbent.
489
London.
Curates of the Caid City, and the Citizens and inhabitants of the Sithes in
Came, fo: and concerning the Payment of Tythes, Dulations, and o-
ther Duties within the ſaid City and Liberties ; foè appealing whereof,
a certain Dider and Decree was made thereof by the moſt Reverend
Father in God, Thomas Archbifhop of Canterbury, Petropolitan,
Chief Primate of all England, Thomas Audley Knight, Lojd Audley
of Walden, and then Lojd Chancellor of England, now deceaſed, and
other of the King's Majeſty's moſt honourable Privy Council, and als
ſo the King's Letters Patents and Proclamation was made thereof,
and diređed to the ſaid Citizens concerning the Came; whereupon it
was after enacted in the Parliament bolden at Weſtminſter by Proroga.
tion the Fourth Day of Februiry, in the Twenty ſedenth Year of
the King's majeſty's moſt poble Reigni, by Authodity of the Came
Parliament, That the Citizens and the Inhabitants of the ſame City
dhould, at Eaſter then nert coming, pay unto the Curates of the ſaid
City and Suburbs all ſuch and like Sums of money for Tythes, Db-
lations, and other Duties, as the Cato Citizens and the Inhabitants
by the Dider of the ſaid late Loid Chancelloy, and other the king's
moſt honourable Council, and the King's Caid Proclamation, paid oz
ought to have paid by force and Wertue of the ſaid Dider at Eaſter,
which was in the year of our Lold God MDXXXV. and the ſame Pays
ments Co to continue from Time to Time, until fuch Time as any
other Dider or Law thould be made, publiched, ratified, and confirmed
by the King's Highneſs, and the Two and thirty Perlons by his Grace
to be named, as well fol the full Eltablitchment concerning the payment
of all Tythes, Dulations, and other Duties of the Inbabitants within
the ſaid City, Suburbs and Liberties of the ſame, as for the making
of the other Ecclefiaftical Laws of this Realm of England; and that
every perſon denying to pay, as is aforeſaid, thould by the Commands
ment of the Mayor of London for the Time being be committed to
Paron, there to remain until ſuch Time as he or they thould have a
greed with the Curate oz Curates for their ſaid Tythes, Dblations,
and other Duties, as is afozelaid, as in the ſaid ac moze plainly apa
peareth: Sithen which ad divers Uariances, Contentions and Strifes
are newly riſen and grown between the Catd Parlons, Wicars and Cu-
rates, and the Caio Citizens and Inhabitants touching the payment of
the Cythes, Oblations, and other Duties, by reaſon of certain Woids
and Terms ſpecified in the ſaid Dider, which are not ſo plainly and
fully ſet fouth as is thought convenient and meet to be: For ap- Remedy by
pealing whereof, as well the ſaid Parlons, Uicars and Curates, as ference.
the Caid Citizens and Johabitants, have compromitted and put them.
ſelves to tand to ſuch Dider and Degree touching the Premilles as
Ghall be made by the ſaid Right Reverend Father in bod, Thomas
Archbiſhop of Canterbury, Metropolitan and Primate of England, the
Right honourable Sir Thomas Wryotheſly Knight, Lojd Wryothelly
and Loid Chancellod of England, the Right Honourable Chomas
Duke of Norfolk, Lold Treaſurer of England, the Right Honours
able Sir William Pawlet Knight, Lold St. John, Lold Preldent of the
Council, and Lold Great matter of the king's mot honourable pouls
bold, the Right Honourable Sir John Ruſlel knight, Lold Ruſſel,
and Lold Privy Seal, the Right honourable Edward Earl of Hert-
ford, Loid Great Chamberlain of England, the Right Honourable John
Uiſcount Lifle, pigh admiral of England, Sir Richard Liſter Knight,
Chief Juſtice of England, Sir Edward Montague Knight, Chief Ju.
Ееее
tice
490
The Clergy-Man's Law: Or, Chap. XLVI.
Tithes in
London.
cree to be
made Thall
ffice of tije Conimon Bench at Weſtminſter, and Sir Roger Cholmley
Knight, Chief Barón of the Exchequer, foi a final End and Conclus
fion to be had and made touching the Premifies for ever. And to the
Intent to have a full Peace and perfect End between the ſaid Parties,
their heirs and Succeſſors, touching the ſaid Cythes, Dblations, and
Enacted by viher Duties foz ever, Be it enacted by Autholity of this preſent
this Act, 31 Parliament, that ſuch End, Dider and Direction as thall be inade,
that the De- decreed and conluded by the fore-named Archbiſhop, Lolds and Knights,
02 aniy Sir of them, before the Fitf Day of March nert enſuing, of
be cnrolled, kol and concerniug the payments of the Cythes, Dblations, and other
Duties within the ſaid City, and the Liberties of the ſame, and en-
rolled in the King's High Court of Chancery of Record, thall đand,
remain and be as an gå of Parliament, and thall bind as well all Cic
tizens and Juhabitants of the faid City and Liberties for the Time
being, as the ſaid Parſons, Aicars, Curates, and their Succellors
for ever, according to the Effex, Purport and Intent of the ſaid Dider
and Decree co to be made and enrolled; and that every perſon deny,
ing to pay any of his og their Cythes, Dblations, op Other Duties
contrary to the Caio Decree to be made, thall by the Commandnient
of the Mayor of London fol the Time being, and in his Default on
Negligence, by the Loưu Chancellol, of England fol the Time being,
be committed to Priſon, there to remain till ſuch Time as he oy they
have agreed with The Curate and Curates for his oz tijetc Cato Cythes,
Dolations, and other Duties, as is aforeſaid.
The Decree.
As touching the Payment of Tithes in the City of London, and the
Liberties of the ſame, It is fully ordered and decreed by the moſt Reve-
rend Father in God, Thomas Archbiſhop of Canterbury, Primate and
Metropolitan of England, Thomas Lord Wryothefley, Lord Chancel-
lor of England, William Lord St. John, Preſident of the King's Ma-
jeſty's Council, and Lord Great Maſter of his Highneſs's Houſhould,
John Lord Ruſſel Lord Privy Seal, Edward Earl of Hertford, Lord
Great Chamberlain of England, John Viſcount Liſle, High Admiral of
England, Richard Liſter Knight, Chief Juſtice of England, and Ro-
ger Cholmley Knight, Chief Baron of his Grace's Exchequer, this
preſent 24th Day of February, Anno Domini, fecundum curfum &
computationem Ecclefiæ Anglicanæ, Milleſimo quingentefimo quadra-
geſimo quinto, according to the Statute in ſuch Caſe lately provided.
That the Citizens and Inhabitants of the ſaid City of London, and
Liberties of the ſame, for the Time being ſhall yearly, without Fraud
or Covin, for ever pay their Tithes to the Parſons, Vicars and Curates
of the ſaid City, and their Succelors for the Time being, after the
Rate hereafter following; that is to wit, Of every Ten Shillings Rent
by the Year of all and every Houſe or Houfes, Shops, Ware-houſes,
Cellars; Stables, and every of them within the ſaid City and Liberty
of the ſame, Sixteen Penie ob. And of every Twenty Shillings Rent
by the Year of all and every ſuch Houſe and Houſes, Shops, Ware
houſes, Cellars; and Stables, and every of them within the ſaid City and
Libertiess Two Shillings and Nine-pence. And ſo above the Rent of
Twenty Shillings by the Year, aſcending from Ten Shillings to Ten
Shilling sy according to the Rate aforeſaid.
Item,
2
Chap. XLVI. The Complete Incumbent.
491
London.
dulent Lea-
ſes.
of the Houſe;
Soroc
Item, That where any Leaſe is, or ſhall be made of any Dwelling- Tities in
houſe of Hcules, Shops, Hare-louſes, Cellars, or Stables, or any of
them; by Fraud or Cozin reſerving lefs Rent than hath been accuftoni- Upon Frau-
id, or ki, or that any ſuch Leaſe hall be made without any Rent re-
ferved upon the ſame, by reaſon of any Fine or Income paid beforehand,
or by any other Fraud or Covin; that then in etery ſuch caſe the Te-
nant or Farmor, Tenants or Farmors thereof Mall pay for his or their
Tithes of the ſame after the Rate aforeſaid, according to the Quality
of such' Rent or Rents as the ſame Houſe or Houſes, Shops, Ware-
houſes, Cellars or Stables; or any of them, were laſt letten for, with-
out Ficud or Covin, before the making of ſuch Leaſe.
Item, That every Owner or Owners, Inheritor or Inheritors, of any
Dwelling-houſe or Houſes, Shops, Ware-houſes, Cellars or Stables, or
any
of them, within the ſaid City and Liberties, inhabiting or occu-
pying the ſame himſelf, or themſelves, Shall pay after ſuch Rate or
Tithes as is aboveſaid, after the Quantity of ſuch yearly Rent as the
ſame was laſt letten for, without Fraud or Covini.
Item, If any perſon or Perſons have taken; or hereafter Ball take, Leſlees dwel-
any Meaſe or Manſion-place by Leaſe, and the Taker or Takers there- ling in Part
of, his or their Executors or Aligns, doth or shall inhabit in any.
Part thereof; and have or hath within Eight Years baft paft before this
Order, or hereafter will or Mall let out the Reſidue of the Same ; that
then in ſuch caſe the principal Farmor or Farmors, or firſt Taker or
Takers thereof, his or their Executors or Aligns, Mall pay his or their
Tithes after the Rate aforeſaid, according to his or their Quantity
therein, and that his or their Executors, Alignee or Allignees, Mall
pay his or their Tithes after the Rate abovefaid, according to the
Quantity of their Rent by Year.
And if that any Perſon or Perfonis have, or Mall take divers Man- if divers
fion-houſes, Shops, Ware-houſes; Cellars or Stables; in one Leaſe, and Houſes, &c.
be taken by
letteth or shall let out to one or more of the ſaid Houſes, and keepeth
or shall keep one or more in his or their own Hands, and inhabiteth
or inhabit in the ſame ; that then the ſaid Taker or Takers, and his
or their Executor's or Alignes; Mall pay his or their Tithes after the
Rate abovefaid, according to the Quantity of the yearly Rent of ſuch
Manſion-houſe or Houſes retained in his or their Hands: And that
his Alignee or Alignées of the Reſidue of the ſaid Manſion-houſe or
Houles ſhall pay his or their Tithes after the Rate aboveſaid, according
to the Quantity of their yearly Rents:
Item, If ſuch Farmor or Farmors; or his or their Aligns of any
Manſion-houſe or Houſes, Ware-houſes
, shops, Cellars or Stables, hath
at any Time within Eight Years laſt paft, or Mall hereafter let over alb
the ſaid Manſ1012-houſe or Houſes contained in his or their Leaſe to
one Perſon, or to divers Perſons ; that then the Inhabitants, Lellees or
Occupiers, of them, and every of them, Mall pay their Tithes after the
Rate of ſuch Rents as the Inihabitants, Leſlees, or Occupiers, and
their Alignee or Alignees have been or ſhall be charged withal, without
Fraud or Covin.
Item, If any Dwelling-houſe within Eight Years laſt paſt was, or of Houſes
hereafter ſhall be converted into a Ware-houle, Store-houſe; or ſuch like, converted,
or if a.Ware-houſe, Store-houſe, or. Such like, within the ſaid Eight
Years, was or thereafter Mall be converted into a Dwelling-houſe ; that
then the Occupiers thereof ſhall pay Tithes for the ſame after the Rate
above declared of Manſion-houſe Rents.
Eeee 2
Item,
one Leare:
ز
492
The Clergy-Man's Law: Or, Chap. XLVI.
Citles in
Londo.1.
Item, That where any Perſon shall demiſe any Dye-houſe or Brew-
houſe with Implements convenient and neceſary for Dying or Brezo-
ing, reſerving a Rent upon the ſame, as well in reſpect of ſuch Imple-
ments as in reſpect of ſuch Dye-houſe or Brew-houſe; that then the
Teñant Mall pay his Tithes after ſuch Rate as is abovefaid, the Third
Penny abated: And that every principal Houſe or Houſes with Key
or Wharf, having any Crane or Gibit belonging to the ſame, shall pay
after the like Rate of their Rents as is aforeſaid, the Third Penny
abated; and that other Wharfs belonging to Houſes, having no Crane
or Gibit, Shall pay for his Tithes as ſhall be payed for Manſion-houſes
in Form aforeſaid.
Item, That where any Manſion-houſe with a shop, Stable, Ware-houſe
,
Wharf with Crane, Timber-yard, Teinter-yard, or Garden, belonging
to the ſame, or as Parcel of the ſame, is or fall be occupied together,
that if the ſame be hereafter ſevered or divided, or at any Time with
in Eight Years laſt paſt were ſevered or divided; that then the Far-
mor or Farinors, Occupier or Occupiers thereof, ſhall pay ſuch Tithes
as is abovefaid for ſuch Shops, Stables, Whare-houſes, Wharf with
Crane, Timber-yard, Teinter-yard, or Garden aforeſaid, ſo ſevered or
divided, after the Rate of their ſeveral Rents thereupon reſerved
Item, That the ſaid Citizens and Inhabitants shall pay their Tithes
quarterly, that is to ſay, at the Feaſt of Eaſter, the Nativity of St.
John Baptiſt
, the Feaſt of St. Michael the Archangel, and the Nativity
of our Lord, by even Portions.
Offerings dif Item, That every Houſholder paying Ten Shillings Rent, or above,
charged. Mall for him or her ſelf be diſcharged of their Four Offering-Days:
But his Wife, Children, Servant, or others of their Family, taking
their Rights of the Church at Eaſter, Mall pay Two Pence for their
Four Offering-Days yearly.
Provided always, and it is decreed, That if any Houſe or Houſes
which hath been, or hereafter shall be letten for Ten Shillings Rent by
Year or more, be or hath at any Time within Eight Tears laſt paſſed,
or hereafter ſhall be divided and leaſed into ſmall Parcels or Members
vided into yielding leſs yearly Rents than. Ten Shillings by Year ; that then the
Owner or Owners, if he or they dwell in any Part of ſuch Houſe, or
elſe the principal Leſee and Lefees, if the Owner or Owners do not
dwell in ſome part of the fame, Mall from henceforth pay for his or their
Tithes after ſuch Rate of Rent as the ſame Houſe was accuſtoined to
be letter for before ſuch Diviſion or Dividing into Parts or Members:
And the Under-Farmor or Farmors; Lellee and Leſlees, to be diſcharg-
ed of all Tithes for ſuch ſmall Parcels, Parts or Members rented at
leſs yearly Rent than Ten Shillings by Year, without Fraud or Covin,
paying Two-pence apiece yearly for Four Offering-Days.
Provided alway, and it is decreed, That for ſuch Gardens as apper-
tain not to any Manſion-houſe, and which any. Perſon or perſons
holdeth or ſhall hold in his or their Hands for Pleaſure, or to his own
Uſe; that the then Perſon ſo holding the ſame, pall pay no Tithes for
the ſame : But if any Perſon or Perſons which boldeth or. Shall hold a-
ny ſuch Garden, containing half an Acre or more, doth or Malt make
any yearly Profit thereof by way of Sale; that then he or they fall pay
Tithes for the ſame after ſuch Rate of his Rent, as is heroin firſt
above Specified.
Provided, alſo, That if any ſuch Gardens now being of the Quantity
of half an Acre or more, be hereafter by Fraud or Covin divided into
lefs
Houſes di-
ſmall Par-
cels.
1
--
Gardens for
Pleaſure.
Gardens di-
vided.
I
1
Chap. XLVI. The Complete Incumbent.
493
London.
or if
leſs Quantity or Quantities, then to pay Tithe according to the aithes in
Rate aboveſaid.
Provided alway, That this Decree shall not extend to the Houſes of Nobleniers
great Men, or Noble-men, or Noble-women, kept in their own Hands, Houſes.
and not letten for any Rent, which in Times paft hath paid no Tithes,
so long as they shall ſo continue unletten ; Nor to any Halls of Crafts
or Companies, ſo long as they be kept unletten, ſo that the fame Halls
in Timies paſt have not uſed to pay any Tithes.
Provided always, and it is decreed, That this preſent Order and Sheds, Esc.
Decree Mall not in any wiſe extend to bind, or charge any Sheds, Sta- exempred.
bles, Cellars, Timber-yards; ne Tinter-yards, which were never Parcel
of any Dwelling-houſe, ne appertaining or belonging to any Dwelling-
houſe, ne have accuſtomed to pay any Tithes; but that the ſaid Citi-
zens and Inhabitants Mall thereof be quit of Payment of aizy Tithes,
as it hath been uſed and accuſtomed.
Provided alſo, and it is decreed, That where leſs Sumi than after Accuſtoma-
Sixteen pence half penny in the Ten Shillings Rent, or leſs Sum than ble Rates
Two shillings nine pence in the Twenty Shillings Rent, hath been ac-
cuſtomed to be paid for Tithes; that then in ſuch Places the ſaid Citi-
zens and Inhabitants shall pay but only after ſuch Rate as hath been
accuſtomed.
Item, It is alſo decreed, That if any Variance, Controverſy or Strife, Controver-
do or ſhall hereafter ariſe in the ſaid City for Non-payment of any Tithes; to the Mayor.
any Variance or Doubt ariſe upon the true Knowledge or Divi-
fion of any Rent or Tithes, within the Liberties of the ſaid City, or of
any Extent or Ąpellment thereof, or if any Doubt ariſe upon any other
Thing contained within this Decree; that then upon Complaint made
by the Party grieved to the Mayor of the City of London for the Time
being, the ſaid Mayor, by the Advice of Council
, all call the ſaid
Parties before him, and make a final End in the ſame, with Coſts to
be awarded by the Diſcretion of the ſaid Mayor and his Aliftants, ac-
cording to the Intent and Purport of this preſent Decree.
And if the ſaid Mayor make not an End thereof within two Months
after Complaint to him made, or if any of the ſaid Parties find them-
felves agrieved ; that then the Lord Chancellor of England for the Time Appeal to the
being, upon Complaint to him made within three Months then next Lord Chan-
following, shall make an End in the ſame, with ſuch Coſts to be awar-
ded as ſhall be thought convenient, according to the Intent and “Pur-
port of the ſaid Decree.
Provided always, That if any Perſon or Perſons take any Tenement Rent lefſen-
for a leſs Rent than it was accuſtomed to be letten for, by reaſon of ed by reaſon
great Ruine or Decay, Brenning, or ſuch like Occaſions or Misfor- of Ruins,&c.
tunes, that then ſuch Perſon or Perſons, his Executors or Aligns,
Shall pay Tithes only after the Rate of the Rent reſerved in his or their
Leaſe, and none othewiſe, as long as the ſame Leaſe Jall endure. Ştat.
37 H. 8. cap. 12.
Upon Motion for a. Prohibition, the Caſe upon this Statute was
this; That the yearly Rent of an Houſe in London, at the Time of
the Decree made, and after, was Five Pounds, and a new Leaſe was
made of the ſaid Houſe, rendring the Rent of Five Pounds per Annum;
and over that a great Income or Fine, which was covenanted and a-
Rent, with a
greed to be paid yearly the fame Day that the Rent was paid, as a great Fine or
Sum in grofs; but ſo much Rent might have been reſerved for the ſaid income
Houfe, as both the ſaid Five Pounds Rent reſerved, and the Sum in
cellor.
The ſame
Te-
ſery'd.
grofs
494
The Clergy-Man's Law : Or, Chap. XLVI.
Rent re-
ſerv'ct.
conſists of
four Parts.
✓
Titlire in grófs aniounted unto; which Reſervation and Covenant, &c. were
London.
made to defraud the Parſon of the true Rent of the ſaid Houſe, which
he ought to have had according to the true Intent of the ſaid Decree.
In this Caſe, it was reſolved by the whole Court of C. B. If fo much
Rent be reſerved as was accuſtomed to be paid at the making of the
Decree in 37 H. 8. (whatſoever Fine or Income be paid) that the Par-
ſon can aver no Fraud in the Reſervation of that Rent, for the Words
of the Decree are: Where any Leaſe is or ſhall be made of any Dwel-
Accuſtomed
ling-houſe, &c. by Fraud or Covin, in reſerving leſs Rent than hath
been accuſtomed or is paid, &c. So as if the accuſtomed Rent be re-
ferved, no Fraud can be alledged; for the Fraud by the Decree is,
when Icffer Rent than uſual is reſerved; or if no Rent at all be re-
fervcd, that then Tithe ſhall be paid according to the Rent that then
The Decree was laſt before reſerved, for ſo are the Words of the Decree; which
Decree conſiſteth of four Parts, viz. Firſt, Where the accuſtomed
Rent, &c. was reſerved; Secondly, Where the Rent was increaſed,
there the Tithes ſhould be paid according to the whole Rent; Thirdly,
Where leſs Rent was reſerved; Fourthly, Where no Rent was re-
ſerved, but had been formerly reſerved; but in this Cafe, the Parfon
confefſeth that the accuſtomed Rent was reſerved, and thereforc had
no Cauſe of Suit.
Secondly, It was refolved, That ſuch Houſes as were never letten to
Cajus Omiſſus. Farm, but inhabited by the Owner, is Caſus Omnibus, and ſhall pay
no Tithes by Force of the Decree.
Thirdly, it was reſolved, That where the Decree faith, Where no
Rent is reſerved by reaſon of any Fine or Income paid before-hand;
If no Rent albeit no Fine or Income be paid, yet if no Rent be reſerved, the
Parſon ſhall have his Tithes according to the Decree ; for that is put
but for an Example, or Cauſe, why no Rent is reſerved, and whether
any Fine or Income were paid or no, is not material as to the Parſon,
and a Prohibition was awarded to the Court of the Chancellor of the
Biſhop of London to ſtay the Plaintiff's Suit there. Mich. 5. Fac.
Skidmore and Eire v. Bell, Parſon of St. Michael Queenhith, 2
Inft. 659:
And Note, That it hath been held by the Juſtices, that a Houſe in
London, which was Part of the Poſſeſſions of a Priory, that was dif-
Part of a
charged of paying Tithes of their Poſſeſſions, was by the aforeſaid Sta-
Priory.
tute charged with Tithes, according to the Ordinance there; for be-
fore that Statute, no Dwelling-houſe was chargeable with 'Tithes, be-
cauſe no profit ariſeth of it, and only Noblemens Houſes are ex-
cepted. Pafch. 34 Eliz. B. R. Green v. Piper. 3 Cro. 276, and Moor
Half yearly
Alſo it hath been reſolved, that a Rent for half a Year, and after-
Rent. wards for another half Year, is a yearly Rent within the Meaning of
the Decree ; and that as the ſame was laſt let, is not intended laſt before
the Decree, but before the Demand of the Tithes; yet if Leſſee for
Life leaſeth for Years to Á. reſerving Rent, that Rent reſerved by the
Leſſee ſhall not conclude and bind him in the Reverſion to pay Tithes
according to that Rule. Hill. s Fac. B. R. Doctor Mendhouſe. v.
Doctor Taylor, Noy 130.
If a Suit be brought in the Spiritual Court for the Tithes of the
Prohibition
how,
Rent of Houſes in London, a Prohibition lies, for by the Statute 37
H. 1. cap. 12, the Suit ought to be before the Mayor of London, by
Complaint in Writing, and not by. Word of Mouth only, in nature of
.
1
912,
a M012-
Chap. XLVI. The Complete Incumbent.
495
London.
ons,
a Monftrans de Droit, declaring all the Title; and if the Suit be in Tithes in
the Spiritual Court for Tithes in London, the Court of King's Bench
may grant a Prohibition, and yet that Court hath not Power to med-
dle with Tithes in London. Hill
. 5 Jac. B. R. Doctor Mendhouſe v.
Doctor Taylor, Noy 130. Skidmore and Eire v. Bell. 2 Int. 650.
Notwithſtanding this Settlement, divers Preſcriptions for the Pay- Preferipi.
ment of leſſer Rates than the Parſons might require by the faid Set-
tlement (as to pay Ten Shillings for the Tithe of an Houfe, although
that the Rent thereof was Forty Pounds per Annum or more) have
been gained, and allowed. But upon the Occaſion of the late dread-
ful Fire, as to the Churches thereby conſumed, another Statute was
made, to make the Maintenance of the Miniſters thereof more cer-
tain, which is as followeth.
Tihereas the Tythes in the City of London were levied and paid Statute 22 8
with great Inequality, and are fince the late dreadful Fire there, in 33Car.2.c.15.
the rebuilding of the ſame, by taking away of fome poules, altering the the Tithes in
Foundations of many, and the new Erecting of others, ſo diſorder. London, Bord
ed, that in caſe they ſhould not foz the Time to come be reduced to a
Certainty, many Controverlies and Suits of Law might thence a-
riſe: Be it enacted by the King's moft ercellent majeffy, by and with
the advice and Content of the Lords Spiritual and Temporal, and
the Commons in this preſent Parliament allembled, and by the Autho:
rity of the ſame, that tije Annual certain Tythes of all and every Pas
rill and Pariſhes within the ſaid City of London and the Liberties
thereof, whoſe Churches have been demolifhed, or in Part conſumed
by the late Fire, and which Caid pariſhes by Wertue of an Act of this
preſent parliament, Entituled, An Additional Act for the Rebuilding,
of the City of London, Uniting of Pariſhes, and Rebuilding of
the Cathedral and Parochial Churches within the City, remain and
continue tingle, as heretofole they were, op are by the ſaid act annexed
o2 united into one Parith reſpeđively, thall be as followeth; that is to
lay, the annual certain Tythes, oj Sum of money in lieu of Tythes.
1. d
ΙΙο οο οο
100 00 00
I 20 Oo oo
100 00 00
100 00 00
I 20 00 00
I 20 00 00
DE the pariſh of Alhallows Lumbard-Street
De Saint Bartholomew-Exchange
Df St. Bridget alias Brides
DE St. Bennet Finck
DE St. Michaels Crooked-Lane
DE St. Chriſtopher
DE St. Dyonis Back-Church
DE St. Dunſtan in the Eatt
DE St. James Garlick-hith
DE St. Michael Cornhil
DE St. Michael Baffiſhaw
Df St. Margaret Lothbury
Of St. Mary Aldermanbury
DE St. Martin Ludgate
DE St. Peter Cornil
DE St. Stephen Coleman-ftreet
Of St. Sepulchre
DE Alhallows Bread-ſtreet, ano S. John Evangeliſt
Of Alhallows the Great, and Alhallows thé Léls
200 00 00
Ioo oo oo
140 00 00
132 II 00
Ioo oo oo
150 Oo oo
160 00 00
IIO 00 00
110 00 00
200 00 00
140 Oo oo
ܕܽ
ܘܘ ܘܘ ܘܘܬܵ
De
496
The Clergy-Man's Law: Or, Chap. XLVI.
+
Slithes in
London.
I 20 00 00
100 CO OO
200 OO CO
180 Oo oo
I 20 00 00
I20 00 00
1.
S. d.
De St. Alban Wood-ſtreet, and St. Olaves Silver-ſtreet
170 00 co
Df St. Anne and Agnes, and St. John Zachary
140 00 00
DE St. Auguſtine and St. Faith
172 00 00
DE Bt. Andrew Wardrobe, and St. Anne Black-Fryars 140 00 00
DE St. Antholin, and St. John Baptiſt
DE St. Bennet Grace-Church, and St. Leonard Eaſt-cheap 140 Coco
DE St. Bennet Pauls-Wharf, and St. Peters Paul's-Wharf
DE Chriſt-Church, and St. Leonard Foſter-Lane
DE St. Edmund the King, and St. Nicholas Acons
De St. George Buttolph Lane, and St. Buttolph Billinſgate 180 oo oo
DE St. Lawrence Jury, and St. Magdalen Milk-ſtreet
DE St. Magnus, and St. Margaret New Fiſh-ſtreet
170 Oo oo
Dr St. Michael Royal, and St. Martin Vintry
140 00 00
DE St. Matthew Friday-ſtreet, and St. Peter Cheap 150 00 00
Di St. Margaret Pattons, and St. Gabriel Fenchurch
DE St. Mary at Hill, and St. Andrew Hubbard
DE St. Mary Woolroth, and St. Mary Woolchurch
DE St. Clement Eaſtcheap, and St. Martin Orgars 140 00 00
De St. Mary Abchurch, and St. Lawrence Pountney
DE St. Mary Aldermary, and St. Thomas Apoſtles 150 Oo oo
DE St. Mary-le-Bow, St. Pancraſs Soper-Lane, and Al-
200 00 00
hallows Honey-Lane
Df St. Mildred Poultry, and St. Mary Cole-Church 170 00 00
DE St. Michael Wood-ſtreet, and St. Mary Staining
Di St. Mildred Bred-ſtreet, and St. Margaret Moſes 130 00 00
DE St. Michael Queenhith, and Trinity
DE St. Magdalen Old Fiſh-ſtreet, and St. Gregory
DE St. Mary Sommerſet, and St. Mary Mounthaw
DE St. Nicholas Coleabby, and St. Nicholas Olives
130 00 00
Df St. Olive Jury, and St. Martin Ironmonger-Lane
DE St. Stephen Walbrook, and St. Bennet Sherehogg
DE St. Swithin, and St. Mary Bothaw
140 CO 00
DE St. Vedaſt alias Foſters, and St. Michael Quern
160 00 00
200 00 00
160 Oo oo
I 20 00 00
}
100 00 00
160 00 oo
I 20 00 00
110 00 00
I 20 00 00
100 00 00
pc.
Which refpexive Sums of money to be paid in lieu of Cythes with
Over and a- in the ſaid reſpetive Pariches, and aftelled as herein after is directed,
bove Glebes, thall be and continue to be effeemed, deemed and taken, to all Intents
and Purpoſes, to be the reſpective certain annual Maintenance Cover
and above Glebes and Perquilites, Gifts and Bequets to the refpee
đive Parlon, Aicar and Curate of any parith fou the Time being, og
to his oy their refpe&ive Succeſſos, DJ to other perſons for his 02
their Uile) of the ſaid refpe&ive Parſons, Wicars and Curates who
Hail be legally inftituted, inducted and admitted into the reſpetive
Pariſhes afojelaid.
Affeffors and and that the ſaid ſeveral Suins of money for Tythes may be moje
Affefſments.
equally aſſeſſed upon ſeveral y cules, Buildings, and other bereditas
ments whatſoever, within all the ſaid refpeäive Pariſhes: Be it ens
aded by the authority afozelaid, That the Alderman of ſuch reſpective
Ward oc Wards within the Catd City, wherein any of the ſaid pa:
ridhes reſpectively lie, and his of their Deputy od Deputies, and the
Common Councilmen of ſuch their reſpective Ward oz WUards, with
the Church wardens, and one o2 more of the Pariſhioners of ſuch res
ſpeđive Varill, wherein the maintenance aforeſaid is reſpectively to be
alleffed,
I
Chap. XLVI. The Complete Incumbent.
497
London.
Esc.redrelied.
affelled, to be nominated by ſuch reſpeđive Alderman, Deputy, Com Titles int
mon Council-meli, and Church-Wardens, ojany Fivz of them, juhere:
of the aiderman ol his Deputy to be one, fhall at ſome convenient
and ſeaſonable Time befoze the twentieth Day of May, in the Pear of
our Loid God, Due thouſand fir hundred and ſeventy one, aſſemble
and meet together in ſome convenient Place within every of the rez
fpeâive Pariſhes, in ſuch reſpetive Ward wherein the saintenance
afozefaid is to be atteſted ; and they, oy the major part of them co
afſembled, thall proportionably aftels upon all Houſes, Shops, Ware-
houles, and Cellars, qUharfs, keys, Cranes, Water-houſes; (which
Water-houles Call pay in their reſpeäive Parifles wijere tijey tand,
and not elſewhere) and Tofts of Ground (remaining unbuilt) and
all other Hereditaments whatſoever, (ercept Parlonage and Uicarage
Houſes) the whole reſpeđive Sum by this da appointed, od ſo much
of it as more than what each Impropriatoz is by this d& enjoyneð
reſpewively to allow, in the moſt equal Way that the ſaid a leffois,
accoiding to the beſt of their Judgments can make it; which ſaid
Affefſments ſhall be made and finifhed befode the four and twentieth
Day of July then nert enſuing.
and be it farther enaged by the authority aforeſaid, That if any Varlances,
Uariance od Doubt thall happen op ariſe about any Sum ſo aflefled,
as aforelaid, od that any Pariſhioner ou Pariſhioners, or Dwner ol
Owners of any Houſe, Shop, Ware-houſe oz Cellar, Wharf, Key;
Crane, Water-houſe, Toft of Hound, oj other Hereditaments with
in any the ſaid Pariſhes, fhail find himſelf or themſelves aggrieved
the adeling of any Sum ou Süms of Doney, in manner and
form aforeſaid ; that then upon Complaint made by the Party od
Parties aggrieved, to the Loyd Mayor any Court of aidermen of
the ſaid City; within fourteen Days after Notice given to the Party
02 Parties affelled, anið of much aftellments made, the ſaid Lojo
mayor and Court of Aldermen ſummoning as well the Party oz
Parties aggrieved, as the aider ment and ſuch others as made the
áfelment, thall hear and determine the ſame in a ſummary Way,
and the Judgment by them given thall be final, and without up
peals
Provided always, and be it enáted, That any ägetiment 02 Rate Revietis
to be made ou laid by Uertue of this aã, thall oj may in all oz any
the pariſhes aforeſaid, in like manner be reviewed, 02 altered, 02
laid again within three months, after the Twenty fourth Day of
June, Dne thouſand lir hundred and ſeventy four, accoiding to the a:
foreſaid Rules, and any ſuch aftellment or Rate fhail oq may be as
gain reviewed, oy re-attefled within three months after the Twenty
fourth Day of June, in the Year of our Lold, Dne thouſand lir hun
died eighty one, and that all and every ſuch new afleflmeiri and Rate
Thall be liable to the like Appeals, as afozeſaid, and ſhall be colleđed, Appealsi
levied and paid as any other attellment of Rate mentioned in this på
may or ought to be:
and if the ſaid Aldermen, Deputy, čommon Council men, and
Pariſhioner or Pariſhioners appointed, as afozelaid, ſhall after Sum-
mons and Bequett made in that behalf unto them, by the Loud
gayod and Court of Aldermen, oz the Jucumbent or Incumbents of
any of the ſaid refpe&ive Parfű oz Pariſhes, tefule and negleã to Refufala
meet and make ſuch aftellments, as aforeſaid, then it fhall and may
Ffff
bg
498
The Clergy-Man's Law: Or, Chap. XLVI
.
Tithes in ve lawful to and for ſuch perſon or Perſons as ſhall be thereunto
London.
authorized and required by the ſaid Lold Mayor and Court of at:
dermen, to make ſuch antelment, as by the ſaid aldermen, Deputy,
Common Council-men, Church-wardens, Pariſhioner oz Pariſhioners
aforeſaid, thould oy ought to have been made.
Tranſcripts. And be it farther enađed by the authojity aforeſaid, That the ſaid
aflelous within ten Days after ſuch Atellments inade, and the re-
ſpedive Appeals (if any be) determined, fhall make three Tranſcripts
thereof. in Parchment, containing the reſpeđive Sums to be pay
able, od appointed to be paid out of all and every the Premilles
within ſuch reſpexive Pariſh, and ſubſcribe the ſame under their
Hands, and within twenty Days after ſuch Subſcription as afave-
ſaid, one of the ſaid Tranſcripts ſhall be returned to the Lord Mayor
of the City of London, to be kept and preſerved by the ſaid Lold
Mayor, in and among the Records of the ſaid City, for a ggemorial
thereof; and another of the ſaid Tranſcripts fhall be returned into
the Regiſtry of the Lold Bifhop of London, to be kept and preſerved,
as afojelaid ; and the other of the ſaid Tranſcripts fhall remain and
be kept in the Weſtry of ſuch reſpetive Pariſh, for a perpetual Pe-
movial, as aforeſaid.
and fou the furer and better Payment of the ſaid reſpeğive Sums
of money ſo to be allelled and tared towards the railing of the ſaid
Daintenance of the reſpeãive Parſons, Uicars and Curates, of the
How the Mo- laid reſpeãive Pariſhes, as aforeſaid ; Be it farther enađed by the
ncy is to be Authority aforeſaid, That all and every ſuch reſpe&ive Sum and
paid to the Sums of money ſo to be allelled and tared as aforeſaid, towards the
railing of the ſaid maintenance of the ſaid reſpexive Parſons, Ui.
cars and Curates, of the ſaid reſpeãive Pariſhes, thall be paid to
the ſaid reſpeđive Parlons, Uicars and Curates, and their Succel
Cous reſpeãively, at the Four moſt uſual Feaſts, (that is to ſay, at
the annunciation of the Bletled Wirgin Mary, the Nativity of St.
John Baptiſt, the Featt of St. Michael the Archangel, and the Nati-
vity of our Bleled Saviour, od within fourteen Days after each of
the Feats afożeſaid, by equal Payments, the reſpexive Payments
thereof to begin and commence only from ſuch Time and Times as
the Jucumbent ou Incumbents of ſuch refpe&ive Pariſh thall begin
to officiate to preach as Incumbent ou Parſon in the reſpeãive Church,
belonging to the reſpexive Pariſh, oz in ſome other convenient Place
ol Places in ſuch reſpexive Parili aj Parithes, to be nominated oſ
appointed by the Lojd Biſhop of London fou the Time being, ol by
the Archbiſhop of Canterbury, in any place within his peculiars.
Imipropria-
and in any Pariſh or Pariſhes where any Impropriations be, be it
enañed by the Authojity aforeſaid, That all and every the Impropria-
toj ul Impropriatoys of any of the ſaid Pariſhes, thall pay and al-
low what really, and bona fide, they have tiled, and ought to pay and
ſatisfy to the reſpeđive Incumbent of ſuch reſpetive Pariſh, at any
Time befode the late Fire, and the ſame thall be eſteemed and com:
puted as part of the Paintenance of ſuch Incumbent; notwith.
#tanding this Ad, op any Claule od patter, o2 Ching therein con-
tained.
and be it farther enađed by the Authority afojelaid, That if any
the Inhabitants in any reſpeãive Parily or Pariſhes as afozeſaid,
Thall ou do refuſe, oj neglea to pay to the reſpeãive Incumbents a-
foreſaid,
tions.
Chap. XLVI. The Complete Incumbent. 499
London
forefald, of any of the ſaid reſpeđive Pariſhes, any Sum od Sumns iches !!!
of yooney to him reſpeđively payable, ou appeinted to be paid by
this da, oj any Part thereof, contrary to the true intent and meani-
ing of this ##, (being lawfully demanded at the Houſe or poules,
Wīharf, Key, Crane, Cellar oz other Pemilles whereout the fame
is payable) that then it fall and may be lawful to and for the Lord
Fayoz of the City of London for the Time being, upon Dath to be Lord May.
made before him of ſuch Refuſal od Negle&, to give and grant for Diſtreſs
out Warrants for the Dfficer of Perſon appointed to colleå the and Salc.
fame, with the Afittance of a Contable, in the Day-time, to levy
the ſame Tythes 02 Sumns of Boney ſo due, and in arrear and
unpaid, by Diſtreſs and sale of the Goods of the Party of Par-
ties ſo refuſing od negleñing to pay, reſtoring to the Dwner of
Dwners the Dverplus of ſuch Goods over and above the ſaid Ar-
rears of the ſaid qonies o due and unpaid, and the reaſonable
Charges of making ſuch Dittreſs, which he is to dedutã out of the
Bonies raiſed by Sale of ſuch Woods.
Provided always, and be it enađed, That in caſe the Loyd Mayor,
02 Court of aidermen, fhall refuſe oz negleå ta erecute any of the
reſpetive powers to them by this ag granted, 02 to pezfozm all
and every ſuch Thing, relating either to the Adeling of Levying of
the reſpeãive Sums afozeſaid, as they are by this at authorized
and required to perform, Chat then it Mall and may be lawful for
the Loud Chancelloz, 02 Lord Keeper of the Great Seal of England Lord Chan-
for the Time being, op any Two od more at the Baronis of his rant, &c.
gajeſty's Court of Erchequer, by Warrant o2 Warrants, under
his on their reſpedive bands and Seals, to do and perform what
the ſaid Lold Mayoy and Court of Aldermell, accading ta the true
Intent op meaning of this preſent på might or ought to have
done, and by ſuch Warrant, either to impower any perſon az Per-
Lons to make their reſpeđive Allefſments, as aforeſaid, og to autho-
rize the reſpetive Dfficers of Perſons appointed to colleå the Dums
aforeſaid, to levy the ſame by Diſtreſs and Sale of the goods of
any Perlon 02 Perfous that ſhall refuſe or negled to pay the ſame in
manner and form aforeſaid.
Provided always, and be it enađed, That where any of the Pa- Of Parishes
riſhes within the ſaid City, have ünce the late Fire, by Death ov
united.
otherwiſe, become Wacant, the ſurviving or remaining Incumbent
of the other Parifh thereto united, oj therewith conſolidated, ſhall
have and enjoy, and have like Reniedy to recover the Cythes
hereby ſettled to be paid, as if he had been adually preſented, ad-
mitted, inffituted and induđed into both the ſaid Parites, ſince thje
Union and Couſolidation thereof.
Provided always, That no Court 02 Judge, Ecclefiaftical od Pleas, before
Tempojal, mall hold Plea of or for any Sum ol sums of Honey whom to be
due and owing, od to be paid by Uertue of this på, oj any Part
thereof, other than the Perſons hereby authorized to have Cogni-
zance thereof : No Hall it be lawful to od foz any Parſon, Ticar
Od Jincumbent, to convent ou lue any perſon o2 Perſons atlefled as
aforeſaid, and refuſing 02 negleding to pay the ſame in any Court
02 Courts, oj befoze any Judge od Judges, other than what are au:
thouized and appointed by this aa, foz the bearing and Determining
of the ſame, in manner aforeſaid.
Ffff 2
P20
holden,
500 The Clergy-Man's Law: Or, Chap. XLVII.
within the ſaid pariſy, in as large and beneficial manner as formerly
Provided always, That it ſhall and may be lawful to and for the
Warden and Minor Canons of St. Paul's Church London, Parron
Warden of and Proprietols of the Beđory of the Parich of St. Gregory aforeſaid,
St. Paul's, to receive and enjoy all Tithes, Oblations and Dutics ariâng due
they have, or lawfully might have done, any Thing berein to the con
trary notwithſtanding. Stat. 22 & 23 Car. 2. cap. 15.
'thes in
London.
.وع
.
*
1
CHA P. XLVII. .
The ſeveral Ways and Means Lands may be
diſcharged of Tithes at Common Law. Of
Real Compoſitions. Modus Decimandi,
Non Decimandi, &c. and if Glebe Lands
mall pay Tithes.
e.
3 Keble
TheRule for Y what hath been ſaid it appears, That Tithes de Jure Communi,
Tithes, is
are not to be paid of the Earth or Land it felf, nor Houſes of
noi general.
Habitations, Bc. erected upon Lands, but only of the Fruits of the
Earth ; and yet the Rule at this Day is not general, that Tenth of
the Fruits of all Lands here in England are to pay Tithes. For by
the Law, there are divers Ways by which Lands ſtand diſcharged
from the Payment of Tithes to any Perfon, as by real Compoſition,
Preſcription, and Acts of Parliament. But where Lands are thus dif-
charged from the Payment of Tithes; and the Parfon notwithſtanding
ſüch diſcharge, ſues for Tithes in kind, yet no Action of the Cafe lies
againſt the Parfon for bringing ſuch Suit, for where ſuch Action was
brought, the Court conceived it would not lie, though falſo, malitioſe
& Scienter were put in the Declaration, the Suit being brought by
the Parſon in a proper Court. Mich. 26 Car. 2. B. R. Biſhop v.
313:
See Hob. 205, 206. 3 Cro. 836. 8 E. 4. 13. i Roll's Abr.
34. But if a Suit be brought in the Eccleſiaſtical Court to recover the
Advowſon of a Church, and alſo the Tithes; in ſuch Caſe the Patron
may have an Action of the Caſe for ſuch unjuſt Véxation. i Roll's
Abr. 109. But if one fue for Tithes in the Eccleſiaſtical Court, and
the Defendant pleads Payment, and hath two Witneſſes to prove
upon which the plaintiff diſcontinues his Suit, then one of the Wit-
neſſes dies; then the plaintiff knowing that the Defendant hath but
one Witneſs to prove the ſaid Payment, and that one Witneſs is not
fufficient in the Eccleſiaſtical Court, brings a new Action for the fame
Tithes, ſuppoſing now that the Defendant cannot prove Payment of
them, yet no Action lies againſt the Plaintiff for this Vexation. Trin.
43 Eliz. Bray. v. Partridge, 1 Roll's Abr. 101, 102.
Lands dif- - Firſt, Lands may be diſcharged from the Payment of Tithes by
charged for real Compoſition. Regift. fol. 38. F. N. B. f. 44. This is when an A-
Compoſition.
greement is made with the Parſon or Vicar, together with the Affent
of the Patron or Patrons and Ordinary, that certain Lands ſhall for
the future be diſcharged from the Payment of Tithes in Specie, by rea-
fon
it,
...
Chap. XLVII. The Complete Incumbent.
50I
far I itbes.
i
fon of a Recompence agreed upon to be paid, or made to the Parſon, Compoſition
Gc. in reſpect thereof in Money, either as an entire Sum, or as a yearly
Payment, or by Settlement of Lands upon the Incumbent and his
Succeſſors for ever, or by doing ſome other Thing that ſhall be of
Advantage to the Parfon or Vicar to whom the Right of Tithes doth
otherwiſe belong. Doctor and Student lib. 2. cap. 55. Mich. 11 Car.
B. R. Sydown v. Holin, Jones. p. 368. Paſch. i7 Car. B. R. Hitch-
cock v. Hitchcock, Marſh 87. But then this Compoſition to make it
binding as to the Succeſſors
, is to be made either by Deed under Hand
and Seal, or by Fine in the King's Courts, Hobart 176, and alſo it
ought to be made by apt Words; for if the Words of the Contract be,
Inter ſe convenerunt, this is not ſufficient to make it a real Compofi-
tion to bind the Succeſſors, although that the Biſhop call it Realis
Compoſitio, for his Calling of it ſo will not alter the Nature of it,
but that it ſhall remain as a perſonal Agreement, binding and obliging
the Parties to it only, and ſhall not be extended to the Succeſſors.
Paſch. 17 Car. B. R. Hitchcock v. Hitchcock, Marſh p. 87.
It was found ſpecial Verdict, that the Abbey of Fountain, of the Firſt Compo-
Order of the Ceſtercians, was before the Council of Lateran feiſed (ition be-
of the Grange of S. within the Prebend of R. and that betwixt the tween a Pre-
Years of 1216 and 1261, a Compoſition was made between the Abbot Abbot, Sc.
and Convent, and the Prebend of the ſaid Prebendary, that the Ab-
bot and Convent ſhould for ever be free from the Payment of any
Tithes for their Lands, which they tilled at their own Charge within
their faid Grange, Anno Domini 1216, and that they ſhould
pay
Tithes for all other Lands there and elſewhere, and that the ſaid Ab-
bot, c. ſhould pay annually to the ſaid Prebend and his Succeſſors,
the Sum of five Marks; the Verdict further found, that Anno Domini
1359, another Compoſition was made betwixt them, reciting the for-
mer (but they do not find, that it was confirmed by the Patron and
Ordinary) and by this latter Compoſition, the Prebend and his Suc-
Second,
ceffors were to have their Election for all times to come ycarly, either
to receive Tithes in kind of Coin or Grain ariſing within the Places
aforeſaid, as well of Lands in the Hands of the Abbot, as in the Hands
of the Tenants, or elſe five Marks to be paid in lieu thereof, ſo as ſuch
Election was notified to the Abbot or any of the Monks, &c. in the
Preſence of a Proctor; or of two good Men, and when no Notice was
given the Prebend to be content with the five Marks, &c. In this Cafe
thie Court were of Opinion, that the ſecond Compoſition did not af-
fect the Succeſſors of the Prebend, and therefore the Abbot was not
bound by it. (The Reaſon ſeems to be, becaufe by the firſt Compo-
fition, the Prebend was bound only quamdiu propriis manibus, &c.
and by the ſecond Compoſition, the five Marks go in Recompence of
all, whether in propriis manibus or in the Hands of Tenants;) Se-
condly, The Court held that the Power of Election is gone,
cauſe it cannot be made according to the Compoſition, and that
therefore the firſt Compoſition ſhould ſtand quoad terras in pro-
priis manibus, and for the others, 'Tithes in kind may be taken
as before, and Judgment was given accordingly, Mich. 16 Çar.
2. in Scaccar. Sir William Ingolsby Bar. v. Robert Wivel and John
Ullithorn, Hardres 381. After the Compoſition is duly and firmly
made, if the Lands be transferred, or granted to another, the Feoffice
or Grantee ſhall have the Benefit thereof. Mich. 11 Car. B. R. Sydown
v. Holm, Fones 268. But if any Real Compoſition hath been made
with
502
The Clergy-Man's Law: Or, Chap. XLVII.
of Cithre.
?
Cuſtom or
:
Diſcharge with any, Archbiſhop, or Biſhop, ſince the ift of Eliz. or with any
Dean and Chapter, College, Archdeacon, Prebend, Parfon, Vicar, &c.
ſince the 13th of Eliz. the fame is void, or at leaſt voidable by the
Statutes, as to all Succeſſors whatſoever; for by the Statute of i El.
Archbiſhops and Biſhops, and by the Statute of 13 Eliz. cap. 10. all
Collegiate and other Ecclefiaftical Corporations aggregate and ſole,
are reſtrained from making any Grants, other than for Onc and twen
ty Years, or for Three Lives, and without other Qualifications, which
will be mentioned hereafter in their proper Place. And if any Parfon
or Vicar doth make ſuch Compoſition for the binding of himſelf only
during his Time, he ſhall not be bound thereby, but only whilſt he is
reſident, and ſerving the Cure, without Abſence by Eighty Days, as
will be hereafter alfo fhewed.
Diſcharge by
A ſecond Means by which Lands are diſcharged of Tithes, is by
Cuſtom or Preſcription. Cuſtom and Preſcription differ in this; that
Preſcription. Cuſtom is that which gives a Right to a Province, County, Hundred,
City or Town, and then it muſt be common to all within the Limits
where it is pretended to be: But Preſcription is that which gives a
Right to fome particular Perfon, with reſpect to ſome particular Houſe,
Farm or other Thing. Both Cottom and Preſcription may be either
De Non Decimando, or De Modo Decimandi. As for Cuſtom and
Prefcription, whether they may be de Modo Decimandi, none at this
Day diſpute ; and it ſeems that a Cuſtom may be good de Non De-
cimando, in reſpect of this or that particular Tithe; fo that a County
or Part of a County ſhall not pay any ſuch fort of Tithes, provided
that there be beſides a ſufficient Maintenance for the Parfons. Hill.
14 Fac. per Curiam, Burham and Gooſe's Cafe, and Mich. 17 Jac.
B. R. Dr. Andrews and I Roll's Abr. 653, 654.
Upon this Account, a Man (being fued in the Ecclefiaftical Court
for the Tithes of Milk of Ewes) did fuggeſt that by the Cuſtom of
the Country no Tithes of the Milk of Ewes had been paid within
the Memory of Man, and a Prohibition was granted. Mich. 14 Car.
B. R. Sewell and Bickwel's Cafe, per Curiam, 1 Roll's Abr. 654. So
it is ſaid to have been adjudged, that no Tithes of Underwoods ſhall
be paid in Forty Pariſhes of the Wild of Sulex, nor in the Wild of
Kent. Mich. 13 Fac. Porter v. Tike, 1 Roll's Abr. 653. Trin. 15. Fac.
B. R. Bellv. Tard, and Mich. 21 Jac. Loane v. Dixon, and Trin.
17 Jac. B. R. Fawkner and Andreevs, per Curiam, Roll's 1 Abr. 654.
And upon the fame Account it was adjudged, that a Cuſtom for
Bakers within two Hundreds in two Counties, not to pay any 'Thing
of 'Tithes for new erected Mills for the Uſe of their Trade was good,
Paſch. 15 Car. B. R. Kidden and Edwards's Cafe, Roll's i Abr. 654.
But ſuch Cuſtom is faid not to be good for a ſingle Pariſh, Hill. 14
Jac. B. R. Barham and Gooſe, per Curiam, Roll's i Abr. 653, much
lefs is a Cuſtom good De Non Decimando, abſolutely for a Pariſh,
or Places of greater Limits, to have their Lands free from the Pay-
ment of Tithes, without paying any Thing in lieu thereof, for that
this would be to the Deſtruction of Divine Worſhip, and of ſuch
Cuſtom no Inſtance hath been given ; but generally ſpeaking, &
Cuſtom De Non Decimando for a Hundred, &c. is good againſt ſuch
Tithes as are due by Cuſtom only, and not of common Right, as of
Wood, Gc. for as ſuch 'Tithes are due by Cuſtom only, ſo by the like
Cuſtom within a certain Hundred, c. they may be diſcharged from
the Payment of ſuch Tithes.
Milk of
Ewes.
Bakers.
2
When
Chap. XLVII. The Complete Incumbent.
503
of Tiihes.
When 'tis faid, that Preſcription de non Decimando is good, this is to DiCcharge
be underſtood chiefly as to Spiritual Perſons or Corporations; for theſe
being capable of Tithes at Common Law in pernancy, may preſcribe De non Deci-
to be diſcharged generally, ſo that no Tithes ſhall be paid of their mande
, how
own Lands, nor any Recompence for them. Paſch. 38 Eliz. the good.
Biſhop of Wincheſter's Cafe, 2 Coke 44. Hill
. 33 Eliz. B. R. the Biſhop
of Lincoln v. Cowper, 3 Croke 216. Mich. 13 Jac. B. R. the Biſhop
of Hereford's Cafe, Roll's i Rep. 264. Mich. 11 Car. B. R. Sydowi
v. Holate, Gome P: 368. Boules v. Atkins, 2 Keble 28, 6o, 16 2, I75.
And if Lands ſo diſcharged by Preſcription be aliened to a Lay-Man,
and during the Alienation doth pay Tithes, viz. for divers Years, and Lands alien-
ed to Lay-
then be regranted to a Spiritual Corporation; in this caſe the Lands Men,
fhall be diſcharged as formerly, for Tithe is a Thing iſſuing out of
Land, therefore Unity of Poffefſion, or a Releaſe of all Right in and
to the Land, doth not extinguiſh them. Hill. 33 Eliz. B. R. Biſhop of
Lincoln v. Cowper, 3 Croke 216. and Mich. 33 Eliz. fame Caſe, i
Leonard 248, and ſuch Lands as a Spiritual Perfon may hold 'Tithe-
free by Preſcription, the Preſcription holds good, not only for diſcharg-
ing of the Lands in the Hands of Spiritual Perſons, but alſo of their
Tenants and Farmers at Will, for Years, or Life. Paſch 38 Eliz. the
Biſhop of Wincheſter's Cafe, 2 Coke 44. Mich. 38 Eliz. B. R. Wright
v.Wright, 3 Croke sin, fame Cafe, Moor 425. Mich. 42 Eliz. B.PR:
Crouch v. Fryer, 3. Croke 785, fame Cafe, Moor 618, alſo their Copy-
hold Tenants, that is, if no Tithes have been paid of the Lands of a
Spiritual Perſon's Copyholders, Time whereof, Bc. And it ſhall be
intended, that this Preſcription had its Commencement at ſuch Time;
when all was in the Hands of the Spiritual Perſon ; by Gawdy, Fen-
ner and Yelverton againſt Popham. Mịch. 22 Eliz. Crouch v. Fryer,
3 Croke 785. Paſche 1 Jac. Crouch v. Fryer, Yelverton 2; fame Cafe,
Moor 618, but then the Copyholder muſt preſcribe in the Name of
the Lord Noy 132. But in thefe Cafes, although the Preſcription may Farmers of
bar the Parfon of the Pariſh in which the Lands be from demanding
Spiritual
Tithes, yet the Doubt remains, Whether the Tithes of the Lands oc-
cupied by the Spiritual Perſon's Farmers, and if his Copyholders Lands
ſhall belong to the Spiritual Perfon; or that his Tenants by Leafe or
Copy ſhall have the Advantage of ſuch Preſcription ? And it ſeems
that the 'Tithes fhall be to the Spiritual Perſon in both Caſes; for this
is granted in the Caſe of the Farmer. Mich. 38 & 39 Eliz. B. R:
Wright v. Wright. 3 Croke 511; and 'tis faid by Popham and Fenner,
that a Biſhop may preſcribe to have the Tithe of his Copyholders, and
that it ſhall be good againſt a Rector, &c. of the Pariſh. Mich. 42
Eliz. B. R. Crouch v. Fryer; 3 Croke 785, but that is to be under-
ſtood where Tithes have been uſually fo paid to the Biſhop, in which
Caſe it may be good againſt the Parſon of the Pariſh; but whether
the Copyholders of a Spiritual Perſon; not having paid Tithes to any,
ſhall be bound to pay them to the Lord of the Manor is the Doubt,
which I ſuppoſe they ſhall not. Quere.
But from this that hath been ſaid, That Spiritual Perſons may pre- No Tithes
ſcribe in Non Decimando, we may not collect, that iti all "Cafes where there
where no Tithes have been paid by Spiritual Perfons occupying their of Poffellien.
own Lands Time, whereof, &c. that no Tithes ſhall upon any
Account be paid of ſuch Lands; for no Tithes can be paid of Lands
where there is an Unity of Polfefſion, that is; where the Lands and
Tithes or Rectory are in one Hatid, in that a Man cannot pay Tithes
t@
Perſons.
504 The Clergy-Man's Law: Or, Chap. XLVII
. .
ܪ
Diſcharge to himſelf, and yet the Lands may remain Tithable in themſelves;
of trithes, therefore, although a Parſon or Vicar, whilſt his Glebe is in his own
Hands, hath not paid Tithes, nor have his Predeceſſors, paid Time
whereof; yet Glebe Land, becauſe it is Glebe, is not therefore free
from the Payment of Tithe, in whoſe Hands foever it ſhall come,
and in all Cafes; for if a Parſon doth demiſe his Glebe Land render-
ing Rent, and free from all other Exactions and Demands, his Leſſee
Shall pay Tithes to him of the Glebe ſo demiſed, notwithſtanding the
Words, (free from all Exactions and Demands,] for that the Tithes
are an Eccleſiaſtial Inheritance collateral to the Land. Trin.
31 & 32
Eliz. B. R. Parkins v. Hind, 3 Croke 161. Paſch. 27 Eliz. C. B.
Stye v. Miles, Mich. 31 & 32 Eliz. Parkins v. Wild, Noy 35. Trin.
31 Eliz. B. R. Style and Miller's Cafe, 1 Leonard 300.
Parfon ſows,
If a Parfon doth ſow his Glebe, and afterwards doth leaſe over the
and after - Land, and the Leſſce doth fever the Corn, he ſhall pay Tithes therc-
wards leaſes of to the Parſon; or if a Parſon having fown his Glebe doth after-
out his Land, wards fell the Corn, reſerving the Land, the Parfon when the Vendee
doth ſever the Corn, ſhall have Tithe thereof notwithſtanding his
own Grant. Pafch. 40 Eliz. B. R. Humphry's Cafe, Dubitatur,
Hill. 11 Jac. B. R. Moyle and Ewer's Cafe, per Curian, and af-
firmed upon Error. Roll's Abr. 1. 655. So if a Parfon doth fow his
Glebe, and dies before Severance, and another is inducted, and then
his Executor or his Vendee doth fever the Corn, the Succeffor ſhall
have Tithes thercof; for though the Executor doth repreſent the Per-
ſon of the 'Teſtator, yet he cannot repreſent him as Parſon, for that
another is inducted, contra Pafch. 40 Eliz. B. R. Humphry's Cafe,
Roll's Abr. 1. 655. But if the Corn be fevered, and the Parfon dies
before the fame be carried off from the Ground, there, I ſuppoſe, the
Succeſſor ſhall not have Tithes of ſuch Corn ſo ſevered, though ſtand-
ing in Rucks or Shocks upon the Ground; for in the like Caſe I take
it to be, that the Executors of the dying Parſon, and not the Succeſ
ſor, ſhall have the Tithes of all Corn within the Pariſh fevered from
the Ground at the Time of the Parſon's Death, and not carried away,
although the Tithes were not then actually ſet out; for a Right to the
Tithes was veſted in the dying Parſon by the Severance of the Corn
from the Ground; and this I take to be warranted by the Opinion in
the Office of Executor, Chap: 5. fol. 94. Orphans Legacy 81. See
alſo 2 Bulftrode 184. 1 Roll's Abr. 656.
If a Spiritual Perſon hath a Parſonage appropriate, and doth enfeoff
Tithes, or
another part of the Glebe; yet he ſhall have Tithes againſt his own
pay Tithes, Feoffment. 42 Ed. 3. 13 d. and if he demiſeth his Glebe, he ſhall
upon his own have Tithes of his Lellee, Dyer 43. But it is ſaid to be otherwiſe, if
the Parfonage be impropriated, and in Lay Hands, becauſe of the Sta-
tute 32 H. 1. Of Diſolutions, Brewer's and Verſy's Cafe, vouched
by Hutton in Noy 132, (but of this I much doubt) and when it was
ürged for Law, the Court denied it, and ſaid, that the Caſe of Per-
Rins and Hind was adjudged to the contrary in that very Point. Booth
and Franklin's Cafe, Mich. 3 Car B. R. Hetley 31. If a Parfon doth
let his Rectory, reſerving to himſelf his Glebe, he in this Caſe ſhall
pay
Tithe to his Ġrantee. 37. H. 8. fol. 35.
Leffec's Ada If one contract with the Parſon for the Diſcharge of the Tithes of
vantage
of
Diſcharge,
a his Lands for Years, and demiſes his Lands to another, in this Cafe
EPC.
he ſhall not have Tithes of his Lefſees for that this Contract for the
Diſcharge is fixed to the Land, and the Leſſee and other Occupiers
Thall
Wherea Par-
fonſhall have
Feoffment,
I
Chap. XLVII. The Complete Incumbent
.
505
chc Vicar:
Thall have the Advantage of it: But if one takes a Lcaſe of his Diſcharge
Tithes by Deed, and then demiſes his Land, in ſuch Cafe he ſhall of Titles.
have Tithes of his Leſſee. The fame Cafe, Hetly 31.
Though Glebe-Land in it ſelf conſidered, be all Tithable as any Tithe of Par-
other Lands be, yet no Tithes ſhall be paid of the Glebe by the Par- fon's Glebe-
Lands, how
ſon of a Church to the Vicar of the ſame Church, whilſt they are in
payable with
the Hands of the Parfon himſelf, although that the Vicar be endow- reſpect to
ed of the Tithes of all Lands within the Pariſlı, for that Eccleſia
Decimas Solvere Eccleſia non Debet ; and Tanfield faid, that then
lately this.Matter was in Queſtion betwixt Young and the Parſon of
Boxly in the County of IVilts, and adjudged, that no 'Tithes ſhall be
paid of the Glebe-Lands: But by_Popham, if the Vicar by Endow-
ment be to have all the ſmall Tithes within the Pariſh, and then
Parſon doth make a Leaſe of his Glebe-Land, the Leffce ſhall pay
the Tithes ariſing therefrom to the Vicar, and the grofs Tithes thereof
to the Leſſor; to which the Court agreed. Trin. 38 Eliz. B. R. Blinco
v. Marſton, 3 Croke 479, fame Cafe, Moor 457. Or if the Vicar
had been eſpecially endowed of the minute Tithes of Glebe-Lands
of the Parfonage, the Vicar ſhould have had them, although they
were in the Hands of the Appropriator. Note alſo, that it ought to
be ancient Glebe at the Time of the Endowment. Mich. 39 & 40
Eliz. B. R. Blincoe v. Barksdale, 3 Croke 578, fame Cafe, Moor 910.
And what is before faid of the Parſon's Glebe with Reſpect to the How payable
Vicar, holds as to the Vicar's Glebe with reſpect to the Parfon, for to the Vicar
whilſt the Vicar doth retain his Glebe in his own Hands, he ſhall not to the Parfon.
pay Tithes thereof; but if he demiſe it to another, the Lffeee ſhall pay
the grofs Tithes to the Parſon, and the Vicar's Tithes to the Vicar;
and when the Caſe was, that the Vicar had fowed his Glebe; and
died, the Tithes thereof ought to be paid by the Executors to the
Vicar. Harris v. Cotton, Brownlow and Gouldsborough 69. Roll's :
Abr. 655. contra Paſch. 40 Eliz. B. R. Humphrey's Cafe. But it
ſeems, if the Parſon's or Vicar'sGlebe be in another Pariſh than where
the Church is to which it belongs, that Tithes of ſuch Glebe ſhall
be paid to the Incumbent of the Church were the Glebe is, unleſs the
Parſon or Vicar, to whom the Glebe belongs, can preſcribe in Non De-
cimando, Benton and Troff's Cafe, Mich. 40 & 41 Eliz. Moor 522.
Mich. 13 Car. B. R. Doctor Ward and Taylor per Curiam; Roll's i
Abr. 653. Selden Hiſtory of Tithes, cap. 6. fo. 75, 76. So if a Par-
fon or a Vicar of a Church doth purchaſe a Manor or Lands within
their Pariſh, though by this Purchaſe and Unity of Poſſeſſion the
Lands which were tithable before are become Tithe-free, becauſe a
Man cannot pay Tithes to himſelf; yet if the Parfon leafe his Recto-
ry, the Parfon himſelf ſhall pay Tithes of his Lands to his Leſſee;
and if the Parſon makes a Feoffment of his Manor or Lands, the
Feoffee ſhall pay Tithes to the Feoffor, being Parſon; becauſe Tithes
cannot be extinguiſhed by any Unity of Poſſeſſion. Mich. 30 H. 8.
C. B. Dyer fol. 43. Vide 32 H. 8. Brook 7 Ed. 6. Tit. Diſines, 17.
Mich. 3 Car. C. B. Booth v. Franklin Hetley 31. Much more, if a Where a
Man being poſſeſſed of Lands fown with Corn, do fell the Corn Man fells his
to another, and afterwards doth become Proprietor of Tithes of the after be-
faid Land, he ſhall have the Tithes of the Corn by him fold, for comes Pro-
prietor of the
though the Parfon may ſell the Tithes before Severance, and before
Severance hath ſuch an Intereſt and Right in them as he may dif-
poſe of, ſo that the Propriety of them doth not grow unto him only
Gggg
by
Tithes.
506
The Clergy-Man's Law: Or, Chap. XLVII.
Siches.
To whom
Tithes be-
D:[charge of by the Severance, the Severance giving unto him only the Lay Intereſt
in them, yet they ſhall not before Severance pafs without expreſs
Words. Hill. 11 Jac. B. R. Mogle v. Euer. 2 Bulſtrode 183.
Although generally ſpeaking, the Tithes within every Pariſh do be-
long to the Rector, Vicar or Impropriator of ſuch Pariſh, and ſhall
long.
be lo intended, if the contrary be not ſhewed. Stile's Reg. 623, yet
A Portion of may a Portion of Tithes within one Pariſh belong to the Rector, úc.
Tithes ſepa- of another Pariſh. By a Portion of Tithes, is to be underſtood, where
the Re&tory. a Parfon, Rector, or other hath fome Part of the Tithes of a Pariſh
in groſs, ſeparated and divided from the Rectory. of the Parish wherein
they ariſe; iť is faid, that the Original of theſe Portions of Tithes
is to be referred to Time, before the Council of Lateran, when it
was lawful to every one to diſpoſe of his Tithes to any Church at his
Pleaſure, and was not reſtrained to pay them to any one Pariſh in cer-
tain. Sec for theſe Matters. Paſch. 7 E. 6. Dyer 84. b. Selden Hifto-
rog; of Tithes, cap. 6, and cap. 1o. Mich. 26, 27 Eliz. Bozoun's Cafe.
4 Coke 35. Godolf. 35. Biſhop of Wincheſter's Cafe. 2. Coke 44. 14 H.
4. 17. d. 44 AN: 25.20 H. 6. 17. Linw. tit. de locat' & conduit' c Li-
cet v. Portiones, though it may as probably be ſuppoſed that
many
of theſe Portions of Tithes have had their Commencement by Grants
of Parſon, Patron and Ordinary ſince the ſaid Council of Lateran ;
however that be, a Portion of Tithes is in the Notion of Law fo di-
ſtinguiſhed from Tithes belonging to a Rectory, that if a Portion of
Tithes in ſuch a Pariſh be granted (eſpecially in caſe of the King's
Grants) Tithes belonging to the Rectory will not paſs thereby. Bo-
35. Clayton's Rep. Caſe 25. So in pleading to de-
mand Tithes generally, a Portion of Tithes ſhall not be recovered,
which I collect from the Caſe. 14 H. 4. 17. a.
As Perſons meerly Spiritual, becauſe capable of Tithes, may pre-
Perfona Mix-
ſcribe De nou Decimando ; fo the King, who is ſaid to be Perſona
ta diſcharg- Mixta, being alſo capable of Tithes, may in like Manner preſcribe to
be abſolutely diſcharged from the Payment thereof. Comes Hertford v.
Leech. Jones. p. 387. 22 AÑ: 75. 33 Ed. 3. Fitz. Aid del Roy 103.
10 H. 7. 18. Mich. 39 & 40 Eliz. Pyſot v. Heron. Moor 483, for
the Rule is, that he that may have Tithes, may be diſcharged from
the Payment of them. Brownlow and Gouldsborough, 5 p: 31. There-
fore it is, that Lands lying within a Foreſt, and in the Hands of the
King, do not pay any Tithes, although they be within a Pariſh. Mich.
24 Car. B. Ř. Banniſter v. Wright. Stile 137. Stile's Regift. 624.
Mich. 3 Car. C. B. Comins's Cafe. Hetley 60. And this is a Privilege
which extends to the Leſſee of the King, but not to his Feoffee ; by
Henden, Davenport and Athow, Serjeants. Mich. 3 Car. C. B. Comins's
Cafe. Hetley 60, and per Curiam. Mich. 24 Car. B. R. Banniſter v.
Wright. Stile 137. Pafch. 12 Car. B. R. Comes . Hertford v. Leech.
Fories 387. But if the Lands be disforreſted, and be within
any
Pa-
riſh, they ought then to pay Tithes; the ſame Cafe in Stile 137.
But Títhes of Lands which are not within any Pariſh do belong to
bienot in any the King, and there are ſaid to be divers Foreſts which are not within
any Pariſh. 22: All. 75. Selden Hiſtory of Tithes 365, &c. 2 Inſt
. 646.
Rolls i Rep. 454, 457. Stile 137, but 7 Eliz. 3. 5. a. by Herle is to
the contrary, that ſuch Extraparochial 'Tithes belong to the Biſhop :
But he is to be underſtood by the Canon, and not by the Common
Law; and that Canon which gave the Extraparochial Tithes to the
Biſhop was never allowed or reccived in this Rcalm. 2 Inft. 467. But
cd.
If the Lands
2
as
Chap. XLVII. The Complete Incumbent.
507
?
Either.
tentec or Co.
as to the Tithe of Cattle kept and depaſtured on Waſte or Common Diſcharge of
where the Pariſh is not known; is given to the Parſon of the Pariſh
where the owner of ſuch Cattle doth inhabit; by Stat. 2 & 3 E. 6. Cartlo depa-
And it is ſaid to be ruled by Advice of all the Juſtices, upon Walte, epi
cap. 13.
a Cafe depending in the Exchequer. 29 Eliz. that although the Queen
Thall not pay Tithe for her own Poſſeſſions, becauſe ſhe is Perſona
Mixta, and might well retain them, yet if ſhe grants them by Patent Queen's Pa-
in Fee, her Patentee ſhall pay Tithes, and fo ſhall her Copyholder
pyholder.
of Inheritance, for thạt they cannot participate of the Queen's Prero-
gative therein. Crouch and Fryer's Cafe. Mich. 42 Eliz. B. R. 3 Cro.
785, and 'tis alſo admitted, that Lands held of the King in Capite
Íhall pay Tithes. Pafch. 37 Eliz. C. B. Vaughan v. Beal. 3 Cro. 393.
14 Car. 2, in Scaccar. Compoſt v. Hardres p. 315. But a Suit for Chancery.
the Subſtraction of ſuch Tithes was to be in Chancery, and not in the
Spiritual Court. Fitz. Nat. Br. 40. Selden Hiſtory of Tithes, 354. In
Follet and Franklin's Cafe it was agreed, that the King's Farmer is
diſcharged, though the Diſcharge be only in Propriis manibus : And
Sir William Jones ſaid, it had been ſo adjudged; but the Court re-
member'd it not, and held, the King's Fee-Farm is not diſcharged; no King's Farm
more is his Leſfee coming under the Privilege of the Monaſtery ; but mer:
agreed that the King as a Spiritual Perfon may preſcribe in Diſcharge
of himſelf and Farmers; but by a general Preſcription the Farmers
are not diſcharged, much leſs on a Diſcharge by Privilege of Order, C.
and the Court conceived, the Preſcription muſt be found for the King,
his Farmers and Tenants, and that Non-payment by the Under-Ten-
ants of the King's Farmer is ſufficient Evidence to prove ſuch Preſcrip-
tion. Mich. 25 Car. 2. B. R. Follet v. Franklin. 3 Keb. 217.
Though Perſons meerly Spiritual, or mix'd, as the King, may pre- Wherë Lay.
ſcribe De non Decimando by the Common Law, that is, without the Perſons may
Aid of an Act of Parliament, yet no Lay-Perſon can fo preſcribe ; De non Deci-
therefore, when one being ſued in the Eccleſiaſtical Court foș the mando.
Tithes of rough Hay growing in the Marſhes, and for to have a Pro-
hibition did ſurmiſe, that the Pariſhioners paid Tithe-Hay and Grain
growing upon their other Lands, and certain cuſtomary Rates for the
Tithe of Cow and Calf, and that becauſe they had not fufficient Graſs
within the Pariſh to ſuſtain their Beaſts in Winter, they uſed to gather
this Hay called Fenny Fodder for the Suſtenance of their Beaſts, for
the better Increaſe of their Husbandry, and for this Cauſe had been
always freed froni the Payment of Tithes, &c. it was adjudged, that
this Preſcription was not good, becauſe it was but a Preſcription De
non Decimando; and it was held to be a Preſcription De non Deci-
mando, for that the beſtowing the Hay upon their Cattle there was
no good Cauſe or Conſideration of a Diſcharge, in that they might
as well preſcribe to be free from the Payment of Tithe-Corn, becauſe
they ſpend Corn in their Family, or give it for Provender to their
Cattle. Mich. 2 Jac. Webb. v. Sir Henry Warner. 2 Croke 47. Pafch.
44
Eliz. Moor 685.
So admitting that Church-Wardens of a Pariſh may have Land by How by
Preſcription for the Reparation of their Church, yet they cannot pre- Church-war-
fcribe generally in Non Decimando; for that they be not Spiritual Per-
fons, though their Office be a kind of an Eccleſiaſtical Office. Paſch.
37 Eliz. B. R. Longley and Meredine's Cafe. Roll's 1 Abr. 653, and
Roll's 2 Rep. 107. And the Reaſon why a Preſcription De non De
cimando is not good for a meer Lay-Man is, becauſe that none by the
Gg882
Com-
dens,
508
The Clergy-Man's Law: Or, Chap. XLVII.
Title
Diſcharge of Common Law had Capacity to take 'Tithes but only Spiritual Perſons,
or a mix'd Perfon, as the King; and regularly, no meer Lay-Man was
capable of them, if not in ſpecial Caſes, for at the Common Law he
could not (fave in ſome particular Inſtances) fue for the Subſtraction of
them in the Spiritual Court. 7 Ed. 3. 5. 11 AN. 9. 44 Ed. 3. 10 H. 7.
18. Dyer 84, but it is faid, 43 Ed. 3. 34. 44 Ed. 3. 39, that a Far
mer of a Parſon might fue for 'Tithes; but it appeareth that ſuch Far-
mer was a Spiritual Man, as Vicar, &c. And ſo, it is faid, are all the
other Books to be intended, as 31 H. 6. 11. 35 H. 6. 39. 2 Ed. 4. 15.
6 Ed. 4. 3. 12 H. 7. 24, (in which, in Truth, there are but Opinions,
and therefore was Remedy given to Lay-Perſons by Stat. 32 H. 8ic: 7
But if they had been capable of Tithes before, the Common Law
would have given them Remedy, from which 'tis concluded, that they
cannot preſcribe in Nou Decimando. Paſch. 30, the Biſhop of Win-
cheſter's Cafe. 2 Coke 44. Mich. 6 7ac. C. B. the Caſe of Modus De-
cimandi. 13 Coke 13. Hill. 38 Ęliz. Wright's Cafe. Moor 425. Bowls
v. Atkins. 2 Keb. 28, 60, 162, 175. Selden's Hiſtory of Tithes, 288.
And upon his Reafon that a Lay-Man cannot preſcribe in Non De-
cimando: If a Lay-Man hath a Grant from Parfon, Patron and Ordi-
nary to be diſcharged of Tithes, (which is good of it felf, without
any Recompence or Confideretion) yet when it runs out to Preſcription
it 'dies and periſheth ; and although Preſcription and Antiquity of
Time fortifies all other Titles, and ſuppoſeth the beſt Beginning the
Law can give them, in this Caſe it works clean contrary, and that in
Favour of the Church, leſt by Degrees it ſhould be ſpoiled by the
Laity ; ſo that though the Law will allow of a Lay-Man's Diſcharge
by Grant, when it appears, yet when it appears not, it is preſumed,
that it never was, becauſe of the dangerous Confequence of preſuming
the contrary. Mich. 15 Fac. Slade v. Drake. Hobart 297." See the
Caſe of Bowls and Atkins beforo cited. And the Law, faith Coke,
had great Policy therein, for that Lay-Men (to the Trial of whom alí
Preſcriptions are to be put) will rather ſtrain their Conſciences for
their private Benefit than yield to the Church the Duties that belong
thereto, and the Decay of the Rovenues of Men of Holy Church in
the End will be the Overthrow of the Service of God, and of his Reli-
gion ; for it is recorded in Hiſtory, that there were (amongſt others)
Two grie Two grievous Perſecutions, one under Dioclefian, the other under 72-
vous Perfe- lian called the Apoftate; one of them intended to have rooted out all
the Profeſſors and Preachers of the Word of God, Occidit omnes Pres-
byteros, but notwithſtanding that Religion flouriſhed, for Sanguis Mar-
tyrum eſt Semen Eccleſia, and yet the fame was a fearful and grievous
Perfecution ; but the Perfecution under the other was more grievous
and dangerous, becauſe (as the Hiſtory faith) Ipfe occidit Presbyterizim,
for he rabbed the Church, and fpoiled Spiritual Perſons of their Re-
venues, and took all from them whereon they might live, thereupon
in ſhort Time did follow great Ignorance of the true Religion and
Service of God, and thereby great Decay of the Chriſtian Profeſſion;
for none will apply themfelves, or their Sons, or any other whom hę
hath in Charge, to the Study of Divinity, when they ſhall have after
long and painful Study nothing to live upon. Pafch. 38 Elize the Bi-
thop of Wincheſter's Cafe. 2 Co. 44.
Preſcripti :- And the fame Reaſons are of equal Force againſt allowing Preferip-
ons to Lay. tions De modo Decinandi, which oftontinies for a Tithe-Gooſe do
fore allowed. leave - but a Feather to the Parſon or Vicar; yet becauſe Lày-Men,
though
-3
1
Chap. XLVII. The Complete Incumbent,
509
tas
Titles
though not capable of Tithes in Pernancy, were capable of a Diſcharge of
Diſcharge of 'T'ithes at the Common Law in their own Hangs
with the Conſent of the Incumbent, Patron and Ordinary; yiz
by Grant or Compoſition. 8 E. 4. 14. Regiſt. 38, the Law
hath allowed : Preſcriptions De modo Deci vandi. Pafch. 38 Eliz. the
Biſhop of Wincheſter's Cafe. 2 Co. 44. Mich. 6 Jaci C. B. the Cafe
of Modus Decimandi, 13 Co. 13.
A Modus Decimandi is when Lands, Tenements, or Hereditaments, Modul Deci
or an annual certain Sum, or other Profit, Time out of Mind, have Preſcription
been given to the Parſon and his Succeſſors in full Satisfaction and Dife by a Lay-
charge of all the Tithes in Kind in ſuch a Place. So that a Lay- Man for its
Man may preferibe, that he and all thoſe whoſe Eſtate he hath in the
Manor of B. Time whereof the Memory; &c. have paid to the Parfon
for the Time being a certain Penſion yearly, for Maintenance of Dia
vine Service there, in Satisfaction of all Tithes renewing, or ariſing
within the ſaid Manor ; and further may preſcribe, that he and all
thoſe whoſe Eſtate he hath in the ſaid Manor, Time out of Mindy
&c. have uſed in reſpect of the ſaid Penſion fo paid to the Parfon, to
have the Tenth Part of all the Corn within the ſaid Manor, or any
other Part thereof, or of all Lands holden of the ſaid Manor; and fuch
Preſcription is good for it ſhall be intended, that at the Beginning
the Lord had all in his Hands, and afterwards gave the Tenancies to
hold of him, retaining the Tithes, ſo that now he takes but the Tithe,
which he had before by Retainer. Trib. 42 Eliz. B. R. Pigot to
Sympſon. 3 Cro. 1763. And of this latter. Preſcription for the Lord to
have the Tenth Shock of his Tenants, there is this Reaſon alſo given ;
becauſe he hath it as Parcel of, or as a Thing appurtenant to his Ma-
nor, and not as Tithes ; for though a Lay-Man cannot have Tithes by
Preſcription, yet he may have the Tenth Shock as a Temporal Pro
fit apprender; and it may well be Parcel of a Manor; but otherwiſe of
Tithes; for they cannot be Parcel of, nor appendant to a Manory as
was adjudged in Winſcomb's Cafe. Hill
. 35 Eliz. 3 Gro. 293. 1o É.-3
5, and therefore a Man cannot preſcribe generally in himſelf and all
thoſe whoſe Eſtate he hath in the Manor to have any Tithes apper-
taining to the ſame, without ſome ſpecial Matcer ſhewed, nor may he
preſcribe to have Decimas Garbarum, but Decimam Garbam. Hill. Preſcription
40
Eliz. B. R. Pigot v. Hern. 3 Cro. 599, vouched allo in the Biſhop Barbeten
of Wincheſter's Cafe. 2 Co• 45, fame Caſe. Moor 483, and 3 Cro: 599.
See Sherwood and Winchcomb's Cafe. Hill. 37 Eliz. B. R. 3 Cro. 203.
But where the Preſcription is to have Decimam Garham, which is to
be underſtood a Lay-Fee to be taken after the Parſon's Tithes, and
not the Tithes, there the Land notwithſtanding ſuch Preſcription ſhall
be liable to pay Tithes to the Parſon; or.other Proprietor of Tithes of
that Pariſh wherein fuch Lands lie: See 44 AN: 25. But a Lay-Man Preſcriptioti
at this Day may have a Portion of Tithes within a Pariſh by Grant of fitness
from the Crown, laying a Preſcription, c. in ſome of the diſſolved
Religious Houſes, who were ſeized of ſuch Portion of Tithes, and
which by the Diſſolution of Monafteriese. came to the Crown, and
granted by the King to ſuch Lay-Man who claims by or under
the Grant. Paſch. 9 E. 6. Dyer 83. Mich. 26 & 27 Eliz. Bozóun's where tite
Cafe. 4 Co. 350 1 Roll's Abr: 657
If a Man grants Parcel of his Manor tô à Parſon iñi Fee, and the Parcel of á
Parfon with the. Aflents of the Ordinary (without the Patron) in Confi- Gift to be
deration of that Grant; grants to him that he hall be quit of Tithes quit of
Parſon holds
of
510
The Clergy-Man's Law: Or, Chap. XLVII.
Tithes.
Diſcharge of of the Reſidue of the Manor, and afterwards he or his Aſſignee be fu-
ed in the Spiritual Court for Tithes of this Manor, they ſhall have a
Prohibition, though the Grant was made before Time of Memory, if
he hath always ſince continued to be quit of Tithes. See 8 Ed. 4: 14.
F. N. B. 41.g. 3 E. 3. 17. 16 E. 3. tit. Annuity 24. So if the Lord
of a Manor hath always holden his Manor diſcharged of Tithes, in
Conſideration that the Parfon's Predeceffors before Time of Memory,
or in ancient Times, had divers Lands in the ſame Pariſh of the Gift
of the Anceſtors of the ſaid Lord, of which the Parſon is ſeized at this
Day in Fee. If the Parfon fueth for Tithes of the Manor, the Lord
of the Manor may ſhew this ſpecial Matter, how that the Parſon and
his Succeſſors Time out of Mind have holden thoſe Lands, &c. of the
Gift of one and his Anceſtors, or whoſe Eſtate he hath in the ſaid Ma-
nor, in full Satisfaction of the ſaid Tithes; and the Proof, that the
Lord of the Manor gave the Lands that Tithes ſhould never be paid,
at this Day is good Evidence to prove the Surmiſe of the Prohibition.
Mich. 6 7ac. C. B. in the Caſe of Modus Decimandi. 13 Co. 15. Yet
A Preſcrip- when a Prohibition was granted upon this Suggeſtion, that one being a
tion to have Lay-Man was ſeized of the Manor of D. and that he and all thoſe
upon main. whoſe Eſtate he had, Time whereof the Memory of Man is not to
taining a the contrary, have uſed to have the Tithes within the ſaid Manor, and
Chaplain.
that therefore he and all thoſe whoſe Eſtate he had have uſed to main-
tain a Chaplain in the Church of A. a Conſultation was prayed: Firſt,
Becauſe it was not alledged that the Church of A. was within the ſame
Pariſh where the Manor was, and ſo no Conſideration to the Parfon
that was the Plaintiff
. Secondly, Becauſe it doth not extend to the
Maintenance of the Chaplain ſo long as he claims the Tithes, whereof
the Memory, &c. Thirdly, Becauſe the Defendant had not proved
the Maintenance of the Chaplain within the Six Months; but only the
Reſidue of his Suggeſtion, this being the principal Matter to make his
Preſcription good; and a Conſultation was awarded upon this laſt
Exception, per Curiam, and Coke faid, it ſhall be granted for other
Exceptions alſo. Paſch. 12 Fac. B. R. Boothers v. Rogers. 1 Roll's
Rep. p. 2.
And as a Manor may be diſcharged of Tithes againſt the Parfon,
ged upon a upon the Account of a Penſion paid by the Lord, or Land given ; fó
may a whole Pariſh, or Hamlet, be diſcharged of this or that Sort of
Tithe, as of Wood, Hay, upon a Cuſtom, that all the Parſons of the
Church of D. Time whereof, c. have had ſuch Lands Parcel of the
Manor of H. in Recompence of this or that Sort of Tithe within the
faid Pariſh, or Hamlet, although all the Lands within the ſaid Pariſh,
Gc. at this Day do not belong to the ſaid Manor. Mich. 39 40 El.
B. R. Somerton v. Dr. Cotton. 3 Cro. 587. Mich. 16 Jac. B. R. Moor
v. Bullock. 2 Cro. 501. Hill. 42 Eliz. B. R. Auften v. Piggot. 3 Cro.
736. And it is ſaid to be ſufficient for the Pariſhioners to alledge,
that the Parſons have had ſuch Lands in Recompence of ſuch Tithes
not paid within Memory, and that it is not neceſſary that they ſhew
how, or by what Title the Parſons had the Land; but if they had it
in another Manner than in Satisfaction of the Tithes, the Parſon him-
ſelf ought to ſhow that. Hill. 42 Eliz. Auften v. Piggot. Moor 911.
But where there is a Preſcription to be diſcharged of all Tithes of
Hay-ground, viz. of all the Meadow in the Pariſh, in Conſideration
that the Parſon had certain Acres of Meadow, if any arable Land be
A whole Pau
rith difchar-
Cuſtom.
1
con-
Chap. XLVII. The Complete Incumbent.
511
Lithes.
converted into Meadow, the Preſcription extends not to diſcharge that, Diſcharge of
as was ſaid to be adjudged. 14 Jac. in Conier's Cafe, vouched in Pool
and Reynol's Cafe. Hutton 58.
As a Pariſh, ſo any private Perſon may pay a Modus for his Lands, Mlodets by a
or ſome Part thereof, viz. a certain Rent or Sum of Money, or other private Per-
Conſideration, and by that Means be diſcharged from the Payment of Lands.
Tithes ariſing on ſuch Lands. But this Rule ever holds, that as a Lay-
Man cannot preſcribe in Non Decimando, ſo to maintain his Preſcrip-
tion De modo Decimandi, he muſt preſcribe to the Paying, or doing
ſomething, 'Time whereof, c. to the Benefit of the Parſon to whom
the Tithes in kind were otherwiſe due ; therefore when one preſcribed,
that he ought to be diſcharged of Tithes, in Conſideration that he
hath uſed Time out of Memory, &c. to imploy all the Profits of the
Land in the Reparation of the Body of the Church, and to find all
Neceſſaries for the Church ; it was adjudged, that his Modus was not
good, becauſe that the Parfon thereby hath no Recompence for the
Tithe ; but otherwiſe it would have been, if he had uſed with the
Profits to repair the Parſon's Chançel, for that the Parfon being charged
with the Repair thereof, hath Benefit thereby. Pafch. 37 Eliz. B. R.
Longley v. Meredine. i Roll's Abr. 649, 650. So when one preſcribed
to reap Corn, and to make it into Sheafs, and to ſet forth the Tenth
Shcaf at his Charges, and to cut his Hay, and to ſever it from the
Nine Parts at his Charges, in full Satisfaction of the Tithes of the
Corn, Hay and Wool, it was adjudged inſufficient for the Wool, for the
other 'Two were due of common Right, and ſo the Parfon had no-
thing for the Wool, and by conſequence the Preſcription is a De Non
Decimando as to that, therefore bad. Trin. 7 Fac. 13 Co. 45. And
upon
the ſame Reaſon the Court held, that a Preſcription to pay a
Rate to the Rector, will not be to the Diſcharging of the Payment.
of Tithes to the Vicar. Mich. 14 7ac. Wintel v. Child. 3 Bulſtr. 220,
and that the Payment of five Shillings yearly to the Pariſh Clerk, is no
Conſideration of a Preſcription to be diſcharged of the Tithe due to
the Parſon. Mich. 29 & 30 Eliz. Savil v. Wood. 3 Cro. 11. But where
the Plaintiff in a Prohibition did ſuggeſt, that the Prior of N. was
ſeized of a Manor, and of the Tithes fimul ſemel, as of a Portion
of Tithes, and in the 25th of H. 1, granted the ſaid Manor and
Tithes to one F. and his Heirs, rendring Rent, and that the Heirs of
the ſaid F. afterwards granted Parcel of this Manor with the Tithes to
S. rendring five Shillings Rent, and brings down a Title from the ſaid
S. to the Plaintiff in the Prohibition, and concludes that the ſaid F.
and all thoſe whoſe Eſtate, &c. did pay the faid Rent to the ſaid Pri-
or, and ſince the Diſſolution to the King and his Aſſigns, in Diſcharge
of all Tithes. It was objected, that the plaintiff here would infer a
Modus by the Payment of the Rent to the Prior, &c. which will not
do, for unleſs the Modus doth go to the Perſon who by Law ought to
have the Tithes, or for his Benefit, 'tis not good : But it was anſwered,
and agreed to by the Court, that in this Caſe it doth appear, that
there was a Modus in the Prior, which being received till it came to
the Crown, 'tis good, though now paid to others ; for if a Modus be
payable to him who hath the Right of the Tithes, though it be not
to the Parſon of the Pariſh, 'tis well enough, eſpecially as here, being
alledged to be a Portion of Tithes belonging to the Prior, ſo that it
Cannot be ſaid that the Parfon hath not Quid pro Qz10, for he had no-
thing
$12 The Clergy-Man's Law: Or, Chap. XLVII.
Tithes.
No greater
Diſcharge of thing at firſt, and the Compoſition being made with the Prior; the
Plaintiff is only to ſhew Payment to him, and to thoſe who have his
Right. Trin. 34 Car. 2. B. R. James v. Trollop. 2 Mod. Rep. 320.
But when to have a Prohibition it was ſuggeſted, that the Dean and Chap-
ter of Carliſle were ſeized of a Manor, whereof the Place, out of which
Tithes are demanded, is Parcel, and that the Defendant againſt whom
Tithes are demanded, is Copyholder in Fee of thoſe Lands; and that
all the Tenants of that Manor had been diſcharged of the Fourth
Part of their 'Tithes of all their Lands in what Place foever they did
lie, paying ſo much to the Lords of the ſaid Manor for Quit-Rent; a
Prohibition was denied, for per Curiam, it cannot be, that Lands held
of other Lords can be diſcharged of Tithes by the Payment of this
Rent; and it doth not appear that the Payment to the Lord was in any
other Manner, but as his Rent. Trin. 19 Car. 2. B. R. Wilkinſon v.
Richardſon. 1 Sid. 258, the fame Caſe. Keb. 906. And it is ſaid,
if a Man preſcribe to pay one Penny or thereabouts for the Tithes of
every
Acre of arable Land, this is no good Preſcription by reaſon of
the Uncertainty. Mich. 7 Jac. B. R. Allen's Caſe. per Curian. 2
Roll's Avr. 265. So a Modiis to pay four Shillings of every Day's Plow-
ing of Wheat; and two Shillings for every Day's Plowing of Barley,
was held not to be good for the Incertainty, it not being averred how
much every Day's Plowing did contain. 1 Keb. 612.
So a Modus; that all Perfons having Land within ſuch a Town, but
Privilege is not inhabiting within the fame Town, shall pay 4 d. an Acre only in
than to In-* Satisfaction of all Tithes, was held an unreaſonable Cuſtom, to give
greater Privileges to Foreigners than to the Inhabitants which are at
greater Charge, in refpect of their Reſiancy, to the Ornaments of
the Church, C. Mich. 15 Car. 2. B. R. Bawdry v. Buſhell. 1 Le-
vina 116.
After a Cuſtom or Preſcription to be diſcharged of Tithes upon a
ſtom, c. up- Modus is created by Continuance of Time, it may afterwards be loſt,
may be loft. and the Parſon ſhall have his Tithes in kind, of which, one Inſtance
may be given, by not making Payment of the Conſideration of the
Diſcharge, or by paying the Tithes themſelves : for Cuſtom and Pre-
ſcription may be loſt as well as gotten by 'Time, but an Interruption
of the Uſage for ſuch Time only, as Thall not deſtroy the Poſſibility of
making Proof that ſuch Cuſtom or Preſcription was, ſhall not be to the
Deſtruction of it, by Coke in Price and Maſcal's Cafe. Trin. 12 fac.
B. R. Bulſtrode 240, for otherwiſe a Lefſee might pay Tithes in kind
where a Modus is, and ſo bar the Leſſor of the Benefit of the Modus
in After-time, which ought not to be. Maſcal and Price's Cafe. Paſch.
13 Jac: B. R. 1 Roll's Rep. 176. Alfo a Modus may be loſt by the
Alteration or Deſtruction of the Thing for which the Modus was paid,
as if there be a Modus to pay a certain Rate for the Tithe of a Mill,
For a Mill. this Modus may be loft ; as if two Fulling-Mills be under one Roof,
for which a Rate Tithe hath been paid, Time whereof, cc. and after,
thefe Mills are altered and made into one Corn-Mill, the Modus is
gone, and 'Tithe for the Corn-Mill muſt be paid in kind; or if there be
but one Pair of Storres in a Mill, and a Modus is to pay a certain
Rate for them, and then another Pair of Stones is put into the fame
Mill, 'tis faid that Tithes muſt be paid in kind. Brownlow and Goulds-
borough. p. 32. So if one be diſcharged from the Payment of Tithes
for two ancient Corn-Mills driven by Water, for a Modus of ſix Shil-
lings
habitants.
How a Cu-
2
Chap. XLVII. The Complete Incumbent.
513
Lithre.
parked, &c.
lings and eight Pence annually paid to tho Parſon, and the Water-courſe, DiCharge of
that was wont to run to the Mills, is diverted by the owner of the
Mills, and runs in another Place a little Diſtance from theſe Mills, and
then the Owner doth pull down one of theſe Mills and re-cdifies įt
upon the Stream in the new Courſe, he ſhall pay Tithes thereof as for
a new Mill, and the ſaid ancient Modus ſhall not diſcharge it ; but if
by the Continuance of Time by the Act of God the Water-courſe
that was wont to run to the Mill is altered, and the Mills therefore
be pulled down, and built where ſuch new Stream is, the Modus ſhall
continue, and he ſhall be diſcharged of Tithes for theſe new Mills,
paying the ſaid ſix Shillings and eight Pence. Per Curiam. Mịch, 11
Car. B.R. Johnſon v. Dandridge. i Rall's Abr. 652. So if a Man
preſcribe in Mado Decimandi for Hay and Graſs in forty Acres of
Land, and the Tenant doth convert it into Hop-garden, or into Til-
lage, 'the Modus is gone ; for when the Modus is ſpecial, as for Hay
and Graſs, úc. only, there it will be deſtroyed by the Converſion of
the Land, &c. to other Uſes, Hill. 6 Fae. B. R. Sharp and Coult's
Cafe.
per
Cur. I Roll's Abr. 651.
In like manner, if a Modus hath been paid for a Park, Time where Upon a Park
of, &c. and afterwards the Parķ is diſparked, and the Lands converted being, dit-
to Tillage, c. if the Modus were general for a Park, it is gone,
if
the Park be difparked; but otherwiſe it is, if the Modus be for fo ma-
ny Acres of Land contained in the Park, Spardam's Cafe, 1 Roll's
Ábr. 651, and șhibden's Cafe cited. Nay 148. So if a Preſcription be
to pay a Buck or Doe out of the fame Park, when 'tis difparked, the
Preſcription is gone, in Pool and Reynold's Cafe, Mich, 10 Jac. Hut-
ton 57. And 'tis ſaid, the Court doubted whether one that had a Park,
and was uſed to pay the Shoulder of a Deer for all Manner of Tithes,
and the Park is diſparked, ſhall pay Tithes in kind or not? Paſch. 10
Fac. Brownl. and Gouldsb. 1. p. 31. And Popham fajd, that where
the Preſcription is to pay a Shoulder of every Buck or a Dae at Chriſt-
mas, if the Park be diſparked, the Tithes in kind Mall be paid. Bed-
ding field and Feak's Caſe. Pafch. 30 Eliz. B. R. 3 Cro. 407, fame
Caſc. Moor 909, and in the Dean and Chapter of Norwich's Cafe.
Pafch. 38 Eliz. B. R. Oeven 74. So if the Prefcription be to pay
ten Shillings for the Deer and Herbage of the Park, and not for all the
Park, and the Park is diſparked and ſown with Corn, 'Tithes in kind
ſhall be paid ; or if the Preſcription be to pay ten Shillings and a
Shoulder of every Deer, when the Park is diſparked Tithes ſhall be
paid in kind, and not the ten Shillings, as hath been adjudged. Mich.
21 & 22 Eliz. in C. B. Rot. 404, as is ſaid in Beddingfield and Feak's
Caſe. Moor 909. And when a Preſcription was to pay two Shillings
yearly and the Shoulder of every third Deer killed within the Park,
Winch and Warburton held that by the difparking of the Park, the Pre-
fcription as to the Shoulders was determined, and by conſequence all
the Modus Decimandi, and then that the Parſon ſhall have Tithes in
kind, and that if the Park be revived, the Preſcription and Modus De-
cimandi ſhall alſo be revived ; but Nichols and Hobart held, that in
ſuch Caſe the Preſcription ſhould endure, ſaying, that the two Shil-
lings is clearly a Modus Decimandi, which is certain, and the Dif-
parking doth not hinder the Payment of it, and the Shoulders are but
caſual, and upon the Diſparking, the Parſon ſhall loſe them, and reco-
ver in the Court Chriſtian a Recompence for them in Money ; as if a
Man will not ſet forth his Tithes, the Tithes themſelves ſhall not be
Hhhh
recovered,
514
The Clergy-Man's Law: Or, Chap. XLVII
Tithes.
Diſcharge cf recovered, but a Recompence for them; and in this Caſe, though he
was to have the Shoulders according to the Number of the Dcer kil-
led, which makes the Value uncertain, yet the Spiritual Court thall
ſet the Value according to what was uſually paid whilſt it was a Park.
Hill. 12 Jac. B. R. Cowper v. Andrews. i Roll's Rep. 120, and Ho-
bart 39. Godbolt. 237: But according to the former Cafes, the Pre-
ſcription is gone, and Tithes are to be paid in kind s however it is
clear, that if a Modus hath been to pay a certain Rate in Money for
all the Tithes of ſuch a Park, fuch Modus ſhall hold, notwithſtanding
the Park ſhall not be diſparked. Bedding field and Feak's Cafe. 3 Cro.
467, fame Caſe. Moor 909, the Dean and Chapter of Norwich's Cafe.
Owen. 74, and Price and Maſcal's Cafe. 2 Bulſtrode 240, ſame Gaſe.
i Roll's Rep. 176. Or if the Modus be to pay a Buck and a Doe for
all Tithes of ſuch a Park, this Modus ſhall continue, though the Park
be diſparked; for though they be Fere Natura, and fo not tithable in
themſelves, yet they may be given for Tithes by Compoſition, and
may be the Conſideration of a Modus. Sharp v. Sharp. Noy 148. Pool
v. Reynolds. Hutton 57, and by Carus and Catlin. Owen 34. And ſo,
though Partridges and Pheaſants in a Garden be not tithable, yet they
may be by Compoſition paid in lieu of Tithes, and the Parfon ſhall
not take them, but they ſhall be brought dead to him; and though,
in the Caſe of the Park, the Park be diſparked, yet if the Payment of
the Buck, &c. be not fixed to be had out of that particular Park, the
Owner may give a Buck, &c. out of another Park, and the Modus will
continue : But where the Modus of the Buck, &c. is to be had out
of that Park only, then according to the Cafes before mentioned, the
Park being diſparked, the Modus is gone, and the Tithes in kind will
revive, therefore in a Suit for Tithes of Corn growing in a Park dif-
parked, the Defendant pleaded a Cuſtom to pay a Buck in Satisfaction
of all Tithes; and the Witneſſes proved a Buck paid yearly, but could
not tell whether it was taken out of this Park or not. And the Jury
was charged to enquire particularly of this, for if it were fixed to a
Deer out of this Park only, then by difparking the Park, the Cuſtom
is gone : But if it had been often, and moſt what paid out of this
Park, yet this will not alter the Cuſtom, but it may be paid out of
any
Park, if the Cuſtom were to pay a Buck generally. Clayton's
Rep.
Other
С НАР.
1
>
Chap. XLVIII. The Complete Incumbent
515
99 onafteries
diſcharged.
CHAP. XLVIII.
Lands how diſcharged of Tither by ſeve-
ral Acts of Parliament. What Abbies
were diſcharged of Tithes
. A Catalogue
of Abbies above 200 l. per Annum Value
diſſolved by Statuté 31 H. 8. Unity of
Poleſion, and Barren Land.
j
T
HE third and laſt Means by which Lands are diſcharged from Abbey Lands
diſcharged
the Payment of Tithes, is by ſeveral Acts of Parliament; and
by this Means all Abbey Lands that are free from the Payment of Parliament.
Tithes receive their Diſcharge. 'Tis true, in ancient Times divers Re-
ligious Corporations, eſpecially, were diſcharged of the Payment of
Tithes by Special Privilege ; and this Privilege was acquired by two
Means. Firſt, By the Pope's Bull, for the Pope was wont to exempt
what Abbies he pleaſed from the Payment of Tithes for their own
Lands, as the Premonſtrantes, & C. Secondly, By general Councils,
for fo fome Orders were alſo diſcharged, as the Ciſtertians, Hoſpital-
lers, and Templers ; but this Privilege, as to ſuch Orders, was limited
to the Time that the Lands remained in their own Hands, and were
manured by them. Slade and Drake's Cafe. Mich. 15 Fac. Hobart 297)
and was but a perſonal Privileges by whom, or to whomſoever it was
granted. Mich. ii Car. B. R. Sydown v. Holm. Fones 368, ſo that if
all the Members of a Corporation had died, the Lands muſt have
paid 'Tithes that were before free in their own Hands. Mich. 11 Faci
C. B. the Dean and Chapter of Windſor v. Webb: Godbolt, therefore
the Abbies being now diſſolved; this Privilege of Exemption had fal-
len with them, unleſs upheld, and continued; by thoſe Acts of Par-
liament that did diffolve them, ſo that the Diſcharge at this Day, by
which Abbey Lands are free from the Payment of Tithes; is not by ö-
ther Law, or Authority, but by Act of Parliament.
The Aas of Parliament by which Monaſteries, Chauntries, Colleges, Statutes dir
or free Chappels, Gc. were diſſolved, and their Lands given to the folving Mo-
Crown, were, Stat. 27 H. cap. 28. 31 H. 8. cap. 13. 32 H. 8. C. 24.
37 H. 8. cap. 74, and 1 Ed. 6. cap. 14, therefore we are to ſee; what
Lands given by the faid Statutes, or any of them, are diſcharged from
the Payment of Tithes ; as for Stat. 27 H. 8, the Lands thereby given
to the Crown, were ſuch Monaſteries; Priories, or other Religious
Houſes, as were not above the clear yearly Value of two Hundred
Pounds, and theſe are not thereby made free from the Payment of
Tithes ; although they were by the fame Statute given in as large and
ample Manner as the Abbots; &c. had the ſame in the Right of their
Houſes; alſo all ſuch Lands, &c. were by this Statute given; oi con-
firmed to the Crown; which did belong to any Monaſtery, Abbey, or
Priory, as at any Time within one Year next before the making of the
faid Act had been given or granted to the King by the Governour
thereof, under their Covent Seal, or that otherwiſe hád then been ſup:
H hh h
preſſed
$16
The Clergy-Man's Law: Or, Chap. XLVIII.
Shonaſteries preſſed or diſſolved; and this Statute, nor any other, not containing
diſcharged.
any Clauſe, or Words of Diſcharge, the Lands thereby given have
been, ſince the ſaid Statute, ſubject to the Payment of Tithes, altho’
they might be free from that Duty, whilſt in the Hands of the Reli-
gious Poſſeſſors, or their Right to them did continue ; therefore in this
Cafe, if a Prior, &c. had been difcharged by Privilege only, that is,
by Bull, or Canon, by Brampfton Chief Juſtice, Jones and Berkley a-
gainſt Croke, the Statute of 27 H. 8, doth not preſerve this Privilege,
becauſe that there be not any Words that the Lands given thereby ſhall
be diſcharged; as the Abbots, &c. held them, and general Words will
not preſerve Privileges which were determined, unleſs ſpecially re-
vived; and they faid, that Statute 31 H. 8, doth not extend to Free
Land given by the former Statutes, for all the Scope of the ſaid Sta-
tute is only to extend to Abbies which came to the King after the
Fourth of February, 27 H. 8, and all Abbies which came to the King
by the Statute of 27 H. 8, came unto him upon or before the Fourth
of February, 29 H. 8, and to thoſe the Statute of 31 H. 8, doth not
intend to extend. For in every Branch are mentioned only the Ab-
bies; &c. which came to the King after 27 H. 8. And although this
Claufe to be diſcharged of Tithes; in the Body of the faid Clauſe, is
any Monaſteries, Goo and Abbots be not mentioned before in that
Clauſe, therefore it ought to be expounded, and coupled with the
Claufes before, which mention and intend only what canie to the King
after the Fourth of February, 27 H. 8, and doth not extend to Abbies
which came to the King the Fourth of February, 27 H. 8, and Jones
ſaid, although it is no Statute until the End of the Seſſions, where the
King's Afſent is given, yet when there hath been a Seſſion, it ſhall have
ſuch Relation to the firſt Day of the Seſſion, that they veſt actually in
the King the ſaid fourth Day of February, 27 H. that the King ſhall
have the Rents incurred after the firſt Day, and before the laſt Day
of the Seffion, and if they be paid in the Interim to the Abbot, &c.
they ſhall be paid again to the King. And Jones and Brampſton reli-
ed upon a Judgment 18 Jac. in the Common Bench, betwixt Gerrard
and Wright, where it was held upon folemn Argument, by Hobart,
Winch and Hutton Juſtices, that the Statute of 31 H. 8, doth not ex-
tend to Abbies which came to the King by the Statute of 27
and that in this Court in the Caſe of Whitton and Weſton, for the Pof-
ſeſſions of the Abbey of St. John's of Jeruſalem 4 Caroli, where the
Queſtion being, whether the ſaid Abbey came to the King by the fpe-
cial Act of 32 H. 8, all the four Juſtices agreed, that the Caſe of
Gerrard and Wright was good Law, That the Abbies which came to
the King by the 27 H. 8, were not within the Privilege of 31 H. 8,
nor to have the Benefit of the ſaid Statute of 31 H. 8. And Berkley
Juftice inſiſted much, that this Privilege to be diſcharged of 'Tithes,
being a meer Spiritual Privilege, was determined by the Diſſolution of
the Abbies, and tied only to their Bodies and Perſons ; nor can be re-
vived without eſpecial Words, which are not in the Statutes of 27 H.
8, or 31 H. 8, and that although the Statute of 31 H. 8, extend to
the faid Abbies fupprefſed by the Statute of 27 H. 8, yet there is a
Saving in the ſaid Statute of 31 H. 8, of all Rights and Intereſt, ex-
ćept to the Donors, Abbots, &c. fo that the Perfons which have Right
to Tithes; are preſerved by this Saving ; but this point all the Juſtices
in their Arguments denied, and hield, that the Saving any Right, &c.
doth not extend to Perſons to ſave their Right againſt ſuch Privileges,
g
being
H. 8,
.
1
Chap. XLVIII. The Complete Incumbent. $17
607. Fones 2.
are not aid.
ed by Pre-
were
ſcription, @goc
being againſt the Words, and Intent of the Statute; wherefore, for the Diſcharge by
Reaſons before, but principally, for that the Abbey diſſolved appear-.
ed to be ſuppreſſed by the Statute of 27 H. 8. . By the Opinion of the
faid Three Juſtices, it was adjuged for the Defendant, and that Con-
fultation ſhould be awarded. Mich. 11. Car. B. R. Sydown v. Holme, i
Croke 422, fame Caſe; Jories 368. Hill. 15 Jac. Wright ver. Gerrard,
Gc. Hobart 306. Jones 368. Hill. 18 Jac. Gerrard v. Wright, 2 Croké
As diſcharges by Privilege only are not now good by the Aid of the Where Dif-
ſaid Statutes, ſo not by Preſcription, or real Compoſition ; for when Privileges,
upon a Prohibition, a Surmiſe was made, that a Prior of a Priory, by
this Statute, 27 H. 8. diffolved, held the Lands for which Tithes
demanded by Suit in the Spiritual Court diſcharged, Time whereof,
&c. from the Payment of Tithes, for his Farmer and Tenants for Life,
or Years of the ſaid Lands; two Points were moved and reſolved,
Firſt, Whether the Prior having a Preſcription De Non Decimando,
this Preſcription ſhall be determined by the Diſſolution of the Priory,
or ſtill remain to the King, and ſo to his Patentee, without the Aid ·
of the Statute 27 H. 8. & 31 H. 8. C. 13, as to which it was argued,
that in regard the Land had been diſcharged in the Hand of Spiri-
tual Perſons, Time whereof, buc. who were capable of being diſcharg-
ed of Tithes, it may by Intendment be originally by Compoſition real,
and then it ſhall go with the Land. 8 Ed. 4. 14. Fitz. N. B. 41,
where 'tis faid, that a Lay Perſon may have a Compoſition, and there-
upon a Prohibition, much more a Spiritual Perfon, and then it ſhall
go
with the Land, and 'twas alſo ſaid, that ſuch Preſcription De Nor
Decimando, being fixed in a Spiritual Perſon, by the Diſſolution comes
to the King, being Perſona Mixta, and capable thereof, and fo to his
Patentee. But Bramſton, Jones and Barkley Juſtices, held the con-
trary, and firſt agreed, that ſuch Compoſition real in the Caſe of a
Lay-man, if it may appear, ſhall be good, and the Diſcharge ſhall
go
with the Land; but becauſe a Spiritual Perſon may be diſcharged by
Grant, and that in divers Manners, as well as by Compoſition real, it
ſhall be intended in Favour of the Church, to be by the moſt general
Courſe as by Grant of Privilege, which is a perſonal Diſcharge, and
determines with the Corporation, and not by any real Compoſition;
unleſs it could be ſhewed. Mich. 11 Car. B. R. Sydown v. Holm, 1
Croke 422, ſame Cafe. Jones 368. Pafch. 17 Car. in Scaccario, Clark
v.Ward and Hill. 11 Car. Cock v. Thorp adjudged Croke Contra,
Roll's Abr. 654. But in the like Cafe, Dodderidge faid, that if it be
alledged, that the Abbey was founded before the Time of Memory,
and that from the Foundation until the Diſſolution, the Land had
been diſcharged, this had been good, to which Coke agreed. Trin. 1 2
Jac. B. R. Prowſe v. Doctor Leyfield, Roll's Rep. 54, and by Hobart;
who grants that Diſcharge by Compoſition, Bull, Canon and Order
were but perſonal, and doth die with the Body, without the Aid of a
Statute to ſupport them, but holds, that Diſcharge by Preſcription is
of another Nature, for having been always (as Preſcription preſumes)
in Spiritual Hands, the Law judgeth that it was never charged with
Tithes, as the Pleading is, that the Lands were Imanunes a Solutione
Decimaruin, negative, non privative, Scilicet uncharged; net dif-
charged, as if they had been once chargeable ; the Reaſon whereof
was, that being Spiritual Perſons, they were able to miniſter to them-
felves Spiritual Rights, and thereføre performing Officiwmthey might
retaili
518 The Clergy-Man's Law: Or, Chap. XLVIII.
H. 8.
Ponaſteries retain Beneficium, and this Non-charge ſtanding upon Preſcription,
difchargco. was inherent to the Land, not as Thing given, but as a Non ens?
Lands that never yielded Tithes, and Land of the Little Monaſteries
fo free of Tithes, the King by the Statute 27 H. 8. and his Patentees
were to hold free, not by reaſon of any Privilege, which did need
to be preſerved by Statute, but even by the Grant of the Land by
any
kind of Conveyance. And therefore, though Diſcharge by Bull,
or Compoſition, was to die with the Corporation, yet if it were once
run out, Time whereof Mind of Man, &c. it was then to be pleaded,
and uſed as a Non-charge by Preſcription, which was a Titie of Dif
charge by the Temporal Law; and if it were impugned, it was to be
drawn by Prohibition to a Tryal at the Common Law, and this with-
out the Help of any Statute. But after he faith, that he is of Opinion,
that the Defendant may avoid the Plea of Preſcription, by ſhewing
the Abbey, to which the Lands belonged, had other Ways of Diſcharge,
Wright v. Gerrard and Hilderſham, Hill. 15 Fac. Hobart 309, but the
before-mentioned Judgments are more to be regarded, which
are,
that
Prefeription Preſcription is no Diſcharge for Lands given by the Statute 27 H. 8,
no Diſcharge for the Reaſons given in thoſe Judgments, and accordingly was it ad
ven by 13. judged after ſeveral Arguments
. Hill. 18 & 19 Car. 2. B. R. in the
Caſe of Bowles v. Atkins, 1 Siderfin 320. I Levinz 185, the fame
Caſe, 2 Keble 28, 175, where it is ſaid by Twiſden Juſt. that the Cafe
of Sydnam and Holmes, 1 Cro. 42 2; hath been agreed for Law in all
the Courts of Weſtminſter, and (Keeling Ch. Juſt.) the ſanie Point hath
been adjudged by all the Courts, the like Opinion the Court was of,
Hill. 20 & 21 Car. 2. B. R. 2 Keble 472.
Nor by Pre-
And as Lands are not diſcharged by this Statute, upon the Account
ſcription of of Preſcription, ſo much leſs upon a Prefcription of Unity of Poſſeſſion
Unity of
of the Parſonage, and the Lands of which Tithes are demanded. Hill.
Poffeflion.
15 7ac. Wright v. Gerrard, &c. Hobart 311, the fame Cafe, Fones p.
2: Hill. & 2 Croke 607.
The next Statute by which Religious Houſes, &c. were diſſolved,
31 H. 8. c. 13. and the Lands given to the Crown, is 31 H. 8. C. 13, and in this Sta-
tute for the freeing of Lạnds given thereby from the Payment of
Tithes, there is this Claufe. And where divers and fundry Abbots,
Prios, Abbefles, proceftes and other Eccletiaftical Governors, and
Governeties of the faid monafteries, Abbathies, priojies, Nunneries,
Colleges, hoſpitals, boules of Fryars, and other Religious and EC-
cietiaſtical Houſes and Places, have had, pofleted and enjoyed divers
and (undy Parſonages appzopziated, Tythes, Denſions and Poîtions,
and alſo were acquitted and diſchaged of and fo;, the Payment of Pay.
ments of Tythes, to be paid out o foj thetr Caid Donateries, abbas
thies, Priodies, Nunneries, Colleges, hoſpitals, houſes of Fryars,
and other Religious and Eccleßaftical houſes and Places, Manols,
Meſluages, Lands, Tenements and Hereditaments: Be it therefore
enacted by the authority abovelaid, That as well the King our Sove.
reign Loid, uis Heirs and succettors, as all and every Tuch Perſon
and Perſons, their þeirs and aligns, which have, og hereafter chall
bave any monaſteries, abbathies, projies, Nunneries, Colleges,
Hoſpitals, Houſes of Fryars, of other Ecclefiatical boules or Places,
Sites, Circuits, Precincts of the fame, 02 any of them, oz any a-
nozs, azeliuages, Parſonages appropriate, Tythes, Pentions, poz.
tions, oj other bereditaments, whatſoever they be, which belonged o?
Appertained, of which now belong og åppertain unto the faid. monaſte-
ries,
Chap. XLVIII. The Complete liscumbent.
519
rics, gubathies, Prio.ies, JRunnerics, Colleges, Dolpitals. Houles of Boneftcries:
Fryars, of other Religious and Ecclefiaftical poules of Places oq um.
to any of them, thall have, holo, retail, keep and enjoy, as well the
wid garlonages appropriate, Tythes, Penols, and Portions, as the
ſaid 99 onaſteries, Abbathies, Prionis, Dumnerics Collegics, Hofpi:
tals, nouſes of Fryars, and other Religious and Ecclefiaftical nou-
res and Places, Sites, Circuits, Plecinas, mano26, Peales, Landš,
Tenements and other hereditainents whatſoever they be, and every of
them, accouding to their Eftaies and Citles, diſcharged and acquit:
ted of payment of Tythes, as freely, and in as large and ample
manner as the ſaid late Abbots, Pros, abbefles, Priozelles, and other
Éccleñaftical Governous and Goveneles, or any of them had, held
occupied, poletled, uſed, retained, or enjoyed the came, op any Parcel
thereof, at the Days of their Diffolution, Suppređion, Renouncing,
Relinquiſhing, Folfeiting, giving up, op coming to the king's highnels,
of ſuch monafterics, abbathies, Progies, Nunneries, Colleges, hofpi:
tals, noules of Frgars, oz other Religious o? Ecclellaftical Houſes
02 Places, ou at the Day of the Diffolution, Suppzellion, Renoun,
cing, Relinquiſhing, giving up, 02 coming to the King's highneſs of
any of them, this act 04 any Thing therein contained to the contrary
notwithſtanding. Stat. 31 7. 8. cap. 13. Set. 21.
And here I ñhall fet down the Catalogue of the ſeveral Monaſteries, of the terrific
that upon the general Survey taken the 26 H. 8, were returned to be of 2001. per
of the annual Value of Two Hundred Pounds per Annum, and up. Annim, ec.
wards, within England and Wales, and by Conſequence diſſolved by ing discharg-
the Statute of 31 H. 8. C. 13, and by that Means are capable of be-, ed of Tithes.
ing diſcharged of the Payment of Tithes, viz.
;
si
13 Ed. 3.
foż85 09
3
II
e}0293
of}
II
$
1.
d.
Reading Benedictines, founded in the Time of Ħ. 1. 1938 14 63. Berks.
Buſesham Abbey Canons of St. Auſtin, founded in the
Abbington Abbey Benediktines, founded in the Year 702. 1876 10
10 09
Newnham Priory Canon St. Auſtin, founded in the?
Bedford,
Time of H. 11
0293 15
Elmeſton Abbey Benedečtines, founded in the Time of
William the Conqueror.
{ó284 12
Wardon Abbey Ciſtertianss. founded in the 4th of
Stephen, in the Year 1139.
c389 16 06
Chickſand Priory, White Canons Gilbertines, founded
in the Time of W. Rüf.
0212 03.05
Dunſtable Abbey Canons.of St. Auſtin, founded in the
Time of H. 1.
0344 13. 03
Wooburn Abbey Ciſtertians, founded in the Time of
18
King John.
. ,
Bücksi
Time of Ed. f.
0416 16:04
Notely Abbey Canons of St. Auſtin, founded in the
06 08
Time of H. I. in II12.
Milenden Abbey Benediktines, founded in the Year 1293 0261
0261 14
14 06
4
Thorney
of}
02
03.91
1
0437 06
520
The Clergy-Man's Law: Or, Chap. XLVIII.
Monatteries.
1.
S.
d.
0418 12
II
Cantabr. Thorney Abbey Benedictines, founded in the Year 972.
Barewell Priory Canons of St. Auſtin, founded in the
Time of H. 1. in the Year 1092.
be 0256
0256 11
IO
1003
100
II
0225 og 07
30270
Ceftr. St. Terburge Abbey Benedictines, founded in the Year
05
1095
Combermeer Abbey Ciftertians, founded in the Year
1134
Cornub. Bodmin Priory Canons of St. Auftin, founded in the ?
Year 936
270 0021
Launceſton Abbey Canon of St. Auftin, founded in the
Time of Will. the Conq.
0354 00
St. Germans Abbey Canons of St. Auftin, founded in
0243 08 00
the Time of King Ethelftone.
Cumbr. Carlife Priory Canons of St. Auſtin, founded in the
Time of William Rufus.
0418 03
04
Holmcoltrom Abbey Ciftertians, founded in the Year
1:135.
5°427 19 03
II
30243 08
Derbe Darley Abbey Canons of St. Auſtin, founded in the
Time of H. 2.
the oos8
0258 14 05
Devon. Ford Abbey Ciſtertians, founded in the Year 1133.
Newnham Abbey Ciſtertians, founded about the Year
0374 10 06
I
}
1 246.
0227 07 08
"Dinkeſwell Abbey Ciftertians, founded in the Year
I 201.
3°294 18 06
of R. I.
TI
H. 2.
02
Hertland Abbey Canons of St. Auſtin, founded in Time
of H. 2.
40306 03
03 02
Torre Abbey Præmonftratenfes, founded in the Time
0396 00
Buckfaſt Abbey Ciftertiams, founded in the Time of 20466 11
Plimpton Abbey Ciftertians, founded in the Time of
, }o
E. 1.
0.241 17 09
Taveſtock Abbey Benediktines, founded in the Year 961 09.02 05 07
Exon Priory Člun. founded in the Time of H. 1. 0502
Dorſet. Abbotsbury Benediktines, founded about the Year 1016. 0390 19 02
Middleton Abbey Benedi&tines, founded by King?
Ethelftox.
0538 13
Tarrent Abbey Ciftertians, founded by H. 3.
0214 07 09
Shafton Abbey. Benediktines, founded in the Year 941.
1166 08
Cerne Abbey Benedi Etines, founded in the Time of King
Edgar.
0515 17
Sberburn Abbey BenediEtines, founded about the Year
682 14.07
370
I 2
09
II
09
jos
17 10
}
Dunelm. Saint Cuthbert Abbey Benediktines, founded about the 1.360 10
Year 842.
09
Tinanout):
4
Chap. XLVIII. The Complete Incumbent.
521
1.
s.
d. Donattes
ries.
os
Tinmouth Priory Benediktines, founded-
0397
II
I 2
os Elex.
16 03
Berking Abbey Benediktines, founded in the Year 680. 0862
Stratford Langthorn Abbey Ciftertians, found in 1135. OSII
Waltham Abbey Canons of St. Auſtin, about 1060.
0900 04
04 03
Walden Abbey Benedi&tines, founded in the Year 1 136. 0372 18
St. Ofwith Abbey Canons of St. Auſtin, founded in 1120. 0677 01
Colcheſter Abbey Canons of St. Auſtin, in the Time of
0523 17
ΟΙ
02
of }os 23
OO
H. 1.
II
Gloncefter.
II
,
Time of Henry 1.
670 13
Hayles Abbey Ciſtertians, founded in the Year 1246.
0357 07 08
Winchcomb Abbey Benedi&t. founded in the Year 287.
0759
09
Tewksbury Abbey Benedi&t. founded in the Year 715. 1598 of os
Cirenceſter Abbey Canons of St. Auſtin, founded in the?
Time of H. 1.
fiosi 07
Kingſwood Abbey Ciſtertians, founded in the Year
1139
Glouceſter Abbey Benedict. founded in the Year 680.
1946 05 09
Lanthony Priory juxta Glouceſter Canons of St. Au-
ſtin, founded in the Year 1136.
0648 19
ΟΙ
0244
II
O2
II
Hants.
Year 634.
02
:
0339 08
IO
IO
St. Swithins Winten Abbey Benedi&t. founded in the
31509
1507 17
Hyde Abbey Benediktines founded by King Alfrid. 0865 18
Wherwell Abbey Benediktines, founded in the Time of 2
of} 07
King Edgar.
Romſey Moniales Benedict. founded in the Year 907.
0393
Twinham Priory Canons of St. Auſtin, founded ante
}
oo
0312 07
1042.
Belloloco Abbey Ciſtertians, founded in the Year 1024. 03 26 13
Southwick Priory Canons of St. Auftin, founded in
in}
the Time of H. 1.
0257 04
04 04
Tichfield Abbey Præmonſtratenſes, founded in the Time
.
02
of H. 3.
0249 16
OL
St. Albans Abbey Benedictines, founded in the Year
755.
$2102 07
o1 Hertford.
Year?
ne}
Hunts.
of H. I.
II
Капс. .
in 605.
St. Neots Abbey Benediktines, founded about the Time
0241
04
Ramſey Abbey BenediEtines, founded in the Year 969. 1716 04
St. Auftin's prop. Cant. Abbey Benediétines, founded?
1413 04 II
Ledis Priory Canons of St. Auſtin, founded in the
0362 07 07
Feverſham Abbey Clun. founded in the Year 1147, by?
0286
King Stephen.
Boxley Abbey Ciſtertians, founded in the Year 1144. 0204 04
Roffen Abbey Benediktines, founded in the Year 600 0486 II
os
Iiii
Malling
Year 11 19.
I 2
06
II
522
The Clergy-Man's Law: Or, Chap. XLVIII.
f.
d.
02
3. per. ipf. Ř.
1.
gauņatteries.
Malling Abbey BenediEtines, founded by K. Edmund. 0218
04
Dertford Abbey Cannons of St. Auftin founded 46 Ed.2
Ed.} 0380
0380 00
Lanic. thalley Ábbey Ciſtertians, founded in the Year 1172. 0321
Leic. Leiceſter Abbey Canons of Śt. Auftin, founded in 1143. 0951
Croxdėh Abbey Præmonftrat. founded about the Time?
0385
of R. I.
Launda Abbey Canons of St. Auftin, founded in the
Time of vi Ruf.
09. OL
14. og
со
10
0399 03 03
imefo203 es
of H. 2.
cś 00
07
04
OI
1ο
II
Year 1748}0317
1.}2385
Midd.
CO
Lincoln Lincoln St. Gath. Priory Gilbert, founded in the Time
Kirkſteed Abbey Ciſtertians, founded in the Year 11 39. 0286 02
Reveſley Abben Giſtertians, founded in the Year 1143.
0287 02
Thornton Abbey Canons of St. Auſtin, founded in the?
the}0594 17 10
1139.
Barney Abbey Benediktines, founded in the Year 712.
0366 06
.
Ethelred. Ano 716.
Spalding Abbey Benedit. founded in the Year 1052. 0761 08
Sempringham Abbey Gilbert, founded in the Year 1 148,?
K. Stephen.
317 04 OI
Epworth Moniales Carthnfians, 10 R. 2. Fundat. 0237 15 02
Lond. and St. John Ferufal. Priory, founded in the Time of H.
Anno 1100.
2385 12 08
St. Barthol. Smithfield Canons of St. Auſtin, founded
in the Year 1 i 02.
0653 15
St. Mary Biskopſgate Priory, founded in the Year 1187120478 06 06
Clerkenwell Priory Benedi&t. founded in the Time of
King Stephen
$c262
London Minoes Benedištines, founded in the Time of
os
Weſtminſter Abbey BenediEt. founded in the Time of
King Edgar.
{3471 00
Sion Abbey Canons of St. Auſtin, founded by H. 5. 1731 08
London, a Houſe of Carthuſians, founded in the Time 70642 bo
of Ed. 3.
04
St. Clare without Aldgate Monial, founded in the Year
0418 08 05
St. Mary Charter-houſe Carthuftans, founded in the
0736 02
o7
St. John Holiwell Monial Nigr: founded in the Year
1318
0347 03
St. Mary Eaft-Smithfield Abbey Giftertians, founded 0602 11
.
34
Ed.
3.
Northfol. Thetford Abbey Clun. founded in the Year 1103.
0312 14 04
JI'yurundhai Abbey Benešt. founded in the Year 1139. 0211
Hulmo
19
Oo
Ed. 1.
0318 08
of{347
Q2
oo
I 292.
Year 1379.
OI
IÓ
16 06
4
Chap. XLVIII. T.he Gomplete Incumbent.
523
1.
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d. 21909affes
ries.
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00
CO
06
II
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260 13
Oo
Northon.
14
OO
܀
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TimeZo258
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0239 10
os
oo
Hulmo Abbey Benedict. founded by K. Canutus. 05 83 17
Weſtdreham Abbey Premonftratenſes, founded in the
30228
228 00
Time of H. 2.
Wallingham Abbey Canons of St. Auftin, founded a-
ii
bout the Time of King Stephen.
0391
Caſtle-Acre Abbey Clun. founded in the Year 1090. 0306
Weſt-Acre Abbey Clun. founded in the Time of Will
"30360
Rufus.
Nort
Burgi St. Petri Abbey Benedi&t. founded per Rofere?
Rofere} 1721
R. Mer.
Pipewell Abbey Ciftertians, founded in the Year: 1143. 0286
0286 Ii :: 08
St. Andrews Priory Clun. founded in the Year 1067. 0263 07
Sulby Abbey Pranzonſtratenſes; founded in the Time
of K. Stephen.
258 08
05
Lenton Priory Clun. founded in the Time of H. 1:
0329 05
Thurgarton Priory Canons of St. Auſtin, founded in?
in 30259
the Time of 6. 1.
59 09 04
IVelbeck Abbey Canons of St. Auſtin, founded in the
24906
Time of K. Stephen.
03
Warlop Priory Canons of St. Auſtin. Fundat.
Bella Valla Priory Carth. F. Circa 16 Ed. 3.
0227 08
Newfteed Priory Canons of St. Auſtin, founded in the
Time of Ed. 3.
219 18 08
Theſe Two laſt are under Value in Mr. Dugdale; but thus per
Speedo
Tinmouth, a Cell to St. Albans; a Nünhery.
osit o
Godſtow Abbey Benedi&tines, founded in the Time of 7
K. Stephen.
274
05
Eyneſham Abbey Benedictines, founded by K. Ethel-
dred.
Oſney Abbey Canons of St. Auftin; founded in the
Time of H. í.
Thama Abbey Ciftertians, founded in the Time of H. 1. 0256 13
Oxford Priory, per: Speed, fund. ante Conqu. 0224 04
Dorcheſter per eundem Abbey Canons of St. Auſtin,
oo
founded 6350
Haghmond Abbey Canons of St. Auſtin, founded in
inſorso
the Year 1100.
0259 13
Lilleſhull Abbey Canons of ŝt. Auftin, F. per A. El->
229 03
ſtreda, R. Mercia.
oi
Wigmore Abbey Canotis of St: Austin, founded in the 20267
Year 1 172, per Speed.
267 oz Ιο.
Wenlock Priory, Clun. founded in the Year 1181; vel
bell
0401 on 07
Salop Abbey Canons of St. Auſtin, founded in the
Year 108, per Speede..
0615 04 03
Hales Oisen Abbey Præmonſtratenſes; founded in the
Time of K. John.
Iii i 2
Glafen-
OI Northumb.
.
so
Oxon.
0441 1 2
02
, fo654
02
30654 10
II
08
219
0219
I 2
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antea.
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the 3o337 is oo
524 The Clergy-Man's Law::Or, Çhap. XLVIII.
Ponafte
ties.
S.
07. 04
Somerfer.
40439
po
10
Stats
00
hef026
1.
d.
Glaffenbury Abbey Benedict. founded about the Year 300. 3311
Brewton Abbey Canons of St. Auftin, founded about?
the 'Time of the Conqueror.
0439 06 08
Henton PrioryCarthufians, founded in the Time of H. 3. 0248 19.02
Withani Priory Carthufians, founded by H. ?.
0215 15
Tannten Priory Canons of St. Auſtin, founded in the Forgo os
Bathon Abbey Benedict. founded in the Time of H. 3. 0617. 02.03
Keyneſlaam Abbey Canons of Auſtin, founded in the?
3041
Time of H. 1,
0419 14 03
Michelney Abbey Benediktines, founded in the Year 740. 0447 04
04 II
BucklandPriory Giftęrtians, founded in the Timopf E... 0223 03 04
Dela Cres Abbey Cifterţiaps, founded in the Year !!53, 022705
Burton ftp. Trent Abbey Benedi&tines, founded in the?
0267 14 03
Time of Eadred.
Croxdes Abbey Ciffettials, Coast. Fundat.
St. Edırundsbury Abbey Benedictines, founded in the?1059 13
Year 1020.
Butley Abbey Canons of St. Auftin, founded in the fo3i8. 17
Si betonk. Abbey Ciſtertians, founded in the Year 1150. 0250 H 07
Ixworth Priory Canons of St. Austin, faunded in the fo28a og os
Merton Priory Canons of St. Auſtin, founded in the
the}ogst
Year 1414, in the Time of H. 1.
Shene Priors Carthufians, founded in the Year 1414. 0777 12
Chertſey Abbey Benediktines, founded in the Year 666
Newark Priory:
0258 11
St. Mary Over's Abbey Canons of St. Auſtin, founded?
१००
624 & 06
7 H..
Bermondſey Abbey Canons of St. Auſtin, founded 7 H. 1. 0474 14 04
Suffolk.
the 31659 13" 1
II
1
02
Skirej.
19 05
co
0952
15
08
Suflex.
06
H. 2.
II
Warw.
Lewis Abbey of Clun. founded in the Time of Will.2
Rufaus.
920 18
Roberts-Bridge Abbey Ciſtert, founded in the Time of
02 48 19 06
Battaile Abbey Black Monks, founded 1066. 0987 00
Combe Abbey Ciftentiam.s, founded in the 'Time of King
Stephen.
fo311 15
Kenelworth Abbey. Canons of St., Auftin, founded in?
the Time of H. 1.
38
Meryval Abbey. Ciftentions, faunded in the Year
1148.
0.254. 01 08
Nunenton Monial BenediEts founded in the Time of
53 1401
30311
ΟΙ
Oo
$. .
H. 2.
ofi 0253
Malmsbury Abbey. Benedictines
, founded about the pagez. 17.07
Wiin.
Ycar 670..
Braden
Chap. XLVIII. The Gomplete Incumbent.
525
1.
ries:
0212
19.03
of}
обоr
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30601
Wigorn.
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10
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Bradenſtock"Priory Canons of St. Auſtin, founded in
the Time of the Conqueror.
in}
Edington Priory Canons of St. Auſtin, founded in
in30442 09.09
1352.
Ambresbury Abbey Benediktines, founded in 117i 0494. 15...2
Wilton Abbey Benedi&tiñes, founded in the Time of ?
King Ethelwolph.
ot
Fairely
, a Cell to Lewis, per Speed, founded in the o219.00
0217 00 04
Year 1125, Clun.
Laycock Abbey Canons of St. Auſtin, founded in the
fo203
203 02 03
Makverne Abbey Benedictines, founded in the Year 20308
1083.
308 .ot
Eveſham Abbey Benediktines, in the Time of Offee. 1 183 12
Perſhore Abbey Ciſtertians, founded in the Year 0643 04 05
Hales Owen Abbey Premonſtratenſes, founded in the
tlac
Time of King John.
028213 04
Bordeſly Abbey Ciſtertians, founded in the Year 1 138. 0388 ON
,
St. Mary Eborum Abbey Benedi&tines, founded in the
Eberhin.
Second Year of Will. Rufus.
$
1550 öğ od
Selby Abbey Benediktines, founded in the Time of the
Conqueror.
Kirkjtál Abbey Ciſtertians, founded in the Year 1147. 0329
De Rupe Abbey Ciſtertians, founded in the Year 1147. 0224
Monks Burton Abbey Clun. founded about the Year
1186.
6239 63 06
Noſtel Abbey Canons of St. Auſtin, founded in the
Time of H. 1.
0492 18:02
Pomfrait Abbey Clun. founded in the Time of the0331 14 08
Conqueror.
Gisbourne Abbey Canons of St. Auftin, founded in the
Time of K. Stephen,
30628
0628 03:04
Whitby Abbey Benedi&times, founded in the Time of
the Conqueror
0437 oz og
Montegratie Abbey Carthuf. founded about the Year
oź
1396.
Newburge Priory Canons of $t. Auſtin, founded in the 1036 08 63
Belland Abbey Ciſtertians, founded in the Year 1134._ 0238 09 .
Kirkham Abbey Cartons of St. Anfin, founded in the for6g ós 69
Melfa Abbey Ciftertians, founded in the Year 1136. 0299 06 04
Brilington Canons of St. Auftin, founded in the Time 10:47 06 ti
Walton Abbey Gilbërtines, founded in the Time of K.
Stephen
40360 i8 to
Bolton in Craden Priory Canóns of St. Aaftin, found-Folis öz 04
Rival Abbey Ciftertjans, founded if the Year 1132. 0278 10.02
Ferval
02.05
fö323 o 2
04
Monafte
ries.
1. S.
d.
06 08
03
ΙΟ
30257 07
00
Year 1377
Wallia
06
00
27 H. 8, but the Statute of 27 H. 8. cap. 28
$26 The Clergy-Man's Law : Or, Chap. XLVIII.
Ferval Abbey Ciftertians, founded in the "Time of{oíž4 18
os
Furnes Abbey Ciſtertians, founded in the Ycar 1127.
0805 16 05
De Fontibus Ciſtertians, founded in the Year 1132. 0998
Warter Priory, Canons of St. Auſtin, founded in H. 1. 0221
Richai, per Speed.
0351 14 06
Old Maulton Abbey, founded in the Time of King?
88025 57
Stephen, per Speed.
St. Michael near Hull Carthilians, founded in the 0231 37 03
Valle De Sanēta Cruce com, Denbigh Ciſtertians; }0214 03 os
in of
Strata Florida Cardiganſhire Ciſtertians, or Clun.
Clun. 1226
founded in the Time of the Conqueror.
Noti, That in the Valuations aforeſaid, all Halfpence and Farthings
are rejected.
Not all the And here we are alſo to take Notice; that not all the Monaſteries,
under Value Priories, and other Religious Houſes, which were not above the clear
diſſolved by yearly Value of Two Hundred Pounds per Annum, were diſſolved by
Some by Stats Come of them by this Statute 31 H. 8, and the Reaſon is, becauſe there
was a Proviſo in Statute 27 H.8, (which is left out of the Statute in the
Book of the Statutes at large) that notwithſtanding that Act, the King
might by his Letters Patents under the Great Seal of England, continue
any of the ſaid Monaſteries. Therefore ſuch of them as were continued
by the King's Letters Patents, are not to be looked upon as diſſolved by
Statute 27 H. 8, but by Statute 31 H. 8, and the Lands belonging to
them that were held Tithe-free before their Diſſolution, remain fo by
the Force of the aforeſaid Clauſe in the Statute of 31 H. 8. So was
it adjudged in the Exchequer-Chamber betwixt Walklute Farmer of the
Rectory of Uttošater in the County of Stafford, and Wilſhamn Owner
of a Farm there, formerly belonging to the Abbey of Croxden, a ſmall
Abbey of the Ciſtertian Order, which Wilhaw Thewed to be continued
by Letters Patents, and not diffolved but by Statute 3i H. 8. Parſon's
Counſellor. Part 2.. cap. 11. fol
. 335.
But we are not from kience to collect; that ſuch Land which did
Land of lef- belong to the lefſer Monaſteries diſſolved by Statute 27 H. 8, and there-
ties were gi by then held Title-free; being after the Diffolution thereof given to
ten to the fome other greater Monafteries that were not diſſolved; but by Sta-
greater: tüte 31 H. 8, ſhall be now held free from paying Tithe, by Force of
the diſcharging Clauſe in Statute 31 H. 8, fór upon the Diſſolution of
the Corporations to which firſt they belonged, they immediately be-
came Titheable, and ſo could not be held by the greater Abbies more
free than the King their Doner had them; and by Conſequence though
they came the ſecond Time to the King by: 31 H. 8, yet they came to
him as the Abbey held them, vizi ſubject to Tithes, and the Claufe
of Diſcharge therein doth not extend to them. Hill. 15 Jac. Wright
♡o Gerrard, &c. Hobart 307, fame Caſe: Fones pag. 2, and 2 Croke
.
31
Where the
ز
607
2
Nor
Chap. XLVIII. The Complete Incumbent.
$27
1
of the grea-
ter Mona-
ed.
Nor muſt we underſtand, that all the other Lands that did belong Monalte.
unto the greater Monaſteries diffolved by the 31 H. 8, or of the leffer
Monaſteries continued by the King's Letters Patents, and ſo alſo dif- What Land
folved by the ſame Statute, are diſcharged from the Payment of Tithes,
but only ſuch of them as were held diſcharged by the Religious Per- fteries, ens.
fons that did enjoy them before the Diſſolution, and of theſe, ſome are diſcharg-
were held abſolutely diſcharged, others diſcharged only whilſt they
did remain in the actual Occupation and Manurance of the Owners
thereof.
Thoſe that were held abfolutely diſcharged, were ſuch as were dif- Thele abfo-
charged originally, either by Compoſition real, or by Bulls, or Grants lutely dif-
of the Pope for this or that Manor or Parcel of Land, or for this or this or that
that Sort of Tithe only; therefore when a Parfon ſued for the Tithe Land, or this
of Hay and Grain of the Demeans of a Manor within a Pariſh, of or that Sort
Tithe
which the Dean and Chapter of P. after the Diſſolution of the Mona-
ſteries were Owners, in regard that within the Time whereof the Me-
mory of Man was not to the contrary, before the Diffolution, and at
the Time of the Diffolution of the Abbey to which the Manor, &c.
formerly did belong, no ſuch 'Tithes, but only other Tithes, as Wool,
Lamb, &c. were paid by the Farmers by Leaſe or at Will, being
Lay Perſons : It was faid by the Juſtices and Clerks of the Court,
that Prohibitions in this Cafe upon the Statute 31 H. 8, by Vertue of
the Word [Diſcharged] were very ordinary. Paſch. 18 Eliz. Dyer
349.
And thoſe Lands that were free in either Reſpect, that is, ſo that no As to thoſe
Tithes ſhall be paid of the Lands, or that none ſhall be paid of this
Reſpect.
or that Sort of Tithe, are ſaid to be abſolutely freed; for that the
Freedom extends not only to the Owner, but alſo to his Farmers, Ten-
ants and Occupiers under him ; yet not all that receive any Profits
from the Lands belonging to a Manor freed as aforeſaid, ſhall be undera
ſtood to be Farmers, Tenants, or Occupiers; for if one or more Perſons
have Libertatem falcandi, to make Hay only, or alſo to put their Cat:
tle on Lands that belong to ſuch Manor, as appendant to their Houſes;
&c. they are but Commoners, and not Farmers or Occupiers, becauſo
what is taken, is taken as a Profit apprender; therefore if a Prefcrip-
tion was, that the Abbot, his Farmers, Tenants and Occupiers ſhould
be diſcharged of Tithes of the Lands where ſuch Commoners had
ſuch Privileges, it ſhall not be extended to them. Trin. 12 Jac. Suck-
erman and Coates v. Sir Henry Warner. 2 Bulſtrode 248, ſamc Caſe,
RO i Rep. 53. Theſe Titles of Diſcharge were indeed by Time
for the moſt Part loft, and ran out into Preſcriptions, and from hence
all other Preſcriptions De non Decimando are ſuppoſed to have their
Beginning, ſo that it is needleſs when a Diſcharge is to be fhewed, to
ſet forth other. Original thereof, than tkat they were diſcharged by
Preſcription, or that they were held by ſuch Monaſteries diſſolved by
31 H, 8, Time whereof, &c. free from the Payment of Tithes, for it
shall be preſunied that it was by lawful Means. Mich. 32 33 Eliz. Declaration.
B. R. Naſa y. Mollins. i Leon. 241, yet in a Declaration upon a Pro-
bibition, the Plaintiff ought to thew, not only that the Abbot held
the Land diſcharged at the Time of the Diſſolution, but alſo how he
held it diſcharged; for the Statute 31 H.8, faith, in as large and am-
ple Manner as the Abbot held, S.C. and the Statute pincheth upon
that, beſides, ſuch a Claim of Diſcharge of Tithes is contrary to com-
mon Right, therefore ſhall be taken ſtrict; by Hobart, Hutton and
Winch,
ries.
2 Ed. 6.
at Common
Law.
Tithes.
here
528 The Clergy-Man's Law: Or, Chap. XLVIII.
Monaltes Winch, contra Warburton. Yet to ſay that the Lands were held Tithe-
free, Time whereof, &c. may be ſufficient. Hill. 15 Fac. C. B. Slade
v. Drake, Noy 97. Mich. 18 Jac. fame Cafe, Fones p. 6; and Hcb.
295, and a Diſcharge by Compoſition, Bull or Grant, cannot other-
wiſe be made to appear but by Preſcription, and appearing by Preſcrip-
tion, as to Lands given by 31 H. 8, it ſhall be allowed at this Day.
Mich. 11 Car. B. R. Sydown v. Holm. Jones 368. And it is ſaid, that
if an Abbot or Prior were feiſed of Land diſcharged of Tithe, hé that
now is Farmer of ſuch Land, ſhall be admitted to preſcribe in Non
Preſcription Decimando by the Statute of 2 Ed. 6, which wills, that none pay
mando by
Decimandi. Mich. 27 do 28 Eliz. Branch's Cafe, Moor 219.
Limitation of But it is to be noted, That no Abbot or Prior could make any ſuch
Preſcriptions Preſcription that was not founded before the Time of Memory, that
is, before the firſt Year of R. 1, or the Year 1120, which is the Time
of Limitation of all Preſcriptions at the Common Law. 2 Roll's Abr.
269, and Paſch. 18 Car. 2. B. R. Allen v. 'Pory. 3 Keb. 45. Mich.
25 Car. 2. Folet v. Franklin. 3 Keb. 217, and Raym. 225.
2 H. W c. 4. Note alſo, That it hath been enacted as followeth : Item, fou as much as
Againſt pur-
chaſing
our Loid the King, upon grievous Complaint made to him in this
Bulls, to be. Parliament, hath perceived that the Religious Den of the Deder of
diſcharged of
Ciſteaux in the Realm of England, have purchaſed certain Bulls to be
quit and diſcharged to pay the Cythes of their Lands, Tenements
and Poflellions, let to Farm, oj manured or occupied by other per:
ſons than by themſelves, in great Prejudice and Derogation of the
Liberty of Holy Church, and of many Liege People of the Realm:
Dur Lojd the King willing thereupon to odain Remedy, by the ad,
vice and anent of the Lords Spiritual and Temporal, and at the
Inſtance and Requeft of the ſaid Commons, hath ordained and etta-
bliſhed, That the Religious perſons of the Dader of Ciſteaux fhall
ftand in the Eſtate that they were before the Time of ſuch Bulls
purchaſed. And that as well they of the ſaid Dider, as all other Re.
ligious and Seculars, of what Eſtate 02 Condition they be, which
do put the ſaid Bulls in Erecution, ou from hencefozty do purchaſe
other ſuch Bulls of new, oj by Colour of the ſame Bulls purchaſed, og
to be purchaſed, do take advantage in any manner: That Proceſs Mall
ve made againt them, and every of them by Garniſhment of Two
The like by Months by Turit of Præmunire Facias : And if they inake Default, od be
7 H. 4. 5. 6.
attainted, then they ſhall incur the Pains and forfeitures contained in
the Statute of Proviſois, made the Thirteenth Bear of the ſaid king
Richard, 2 H. 4. cap. 4. It hach alſo been enacted, That no perſon, Re.
ligious noSecular, of what Eſtate 02 Condition that he ve, by Co.
lour of any Bulls containing ſuch Privileges, to be diſcharged of
Diſmes pertaining to Pariſh Churches, Prebends, Hoſpitals, o2 Ui:
carages, purchaſed befove the Firî Year of King Richard the Second
after the Conquett, oz üthence not erecuted, fhall put in Crecution
any luch Bulls ſo purchaſed, o2 any ſuch Bulls to be purchaſed in
Time to come. And if any ſuch Religious 02 Secular Perſon, of
what Eftate od Condition he be, from hencefouth by Colour of ſuch
Bulls do trouble any perſon of holy Church, Piebendaries, Wlar-
dens of Hoſpitals, 02 Aicars, ſo that they cannot take ou enjoy the
Diſmes due op pertaining to them of their laid benefices, that then
ſuch
4
Chap. XLVIII. The Complete Incumbent.
529
ries.
tutcs.
ſuch Difurbers fall incur like proceſs and pain as is ordained by the Ponales
Statute made againlt them of the Dider of Ciſteaux, in the Second Bear
of the Reign of our faid Lold the king that now is, 7 H. 4. cap. 6. By conſequence
which Statute it appears, that as the Lands of Churches founded ſince the of theſe Sta-
Time of the Firſt of R. 1. as aforeſaid, cannot plead Preſcription for
an abſolute Diſcharge of Tithes, ſo neither by reaſon of this Statute
can any Pope's Bulls purchaſed before the making thereof, or after, be
pleaded as a Ground of an abſolute Diſcharge, viz. not only for the
Owners whilſt occupied by themſelves, but alſo for their Farmers,
Tenants, or Occupiers, whether the Eſtate was belonging to any Reli-
gious Perſons, or did, or at this Day doth belong to any of the Secular
Clergy; yet I ſuppoſe that a real Compoſition, if it can be thewed,
may be a fufficient Diſcharge, that is, if it was made ſince this Sta-
tute, or ſince the Time of Limitation of Preſcriptions, provided that it
was alſo made before Statute i Eliz. where the Tithes did belong to a
Biſhop, or before Statute 13 Eliz. where they did belong to any Col-
lege, Dean, Dean and Chapter, Archdeacon, Prebend, Parfon, Vicar,
&c.
Though a Preſcription De Non Decimando, without the Aid of an Wherca Mo-
Act of Parliament periſheth when a Corporation is diſſolved, and the naſtery was
Lands come to a Lay-hand; yet by reaſon of the aforeſaid Clauſe in of Lands and
the 31 H. 8. and the favourable Interpretation thercof, Preſcription is Re&ory Si-
of that Force, that where any of the Lands belonging to the Monaſte- mul & Semel,
ries diffolved by the 31 H. 8. were in the Pariſhes whofe Churches
were appropriated to any of the faid Monaſteries, ſo that the ſaid Mo-
naſtery was feiſed both of the faid Lands and Rectory Simul & Semel,
Time out of Mind, and paid no Tithes within the Memory of Man
for the Lands, ſuch Lands ſhall be diſcharged from the Payment of
Tithes by ſuch perpetual Unity of Poffeffion, as was adjudged. Mich.
34 & 35 Eliz. Knightly v. Spencer, and Hill
. 24 Eliz. Roſe v. Gura
ling, both vouched Trin. 38 Eliz. B. R. in the Archbiſhop of Canter-
bury's Cafe, 2 Coke 47, 48. Mich. 40 & 41 Eliz. Benton v. Trot. Moor
528, where alſo 'tis ſaid to be ſo adjudged in Green and Boskin's Caſe,
Mich. 3º Eliz. Prowles Cafe, 4 Leonard 47. However, if in this
Caſe of Unity, the Farmers of the Demeſnes had paid Tithes, Go to
the Abbot, óc. when uſed by their Farmers at Will, for Years or
Life, then the Intendment of the Law by reaſon of the ſaid Unity of
Poſſeſſion, (which ought to be Time out of Mind, &c.) that the Land
was diſcharged of the Payment of Tithes, will not hold place, Mich.
4 Car. B. R. Brondhead v. Lewis, Jones, 412, therefore, if an Abbat
had made a Leaſe for Years a Year before the Diſſolution, although
that the Leaſe was made void by the Statute, yet this Leaſe ſhall de-
ſtroy the Unity of Poffefſion, ſo that it may not be pleaded in Diſcharge
of the Tithes; but otherwiſe it would have been, if there had been an
abſolute Nullity of the Leaſe ab initio without a conſequent Statute
to make it void. Hill. 11 Fac. B. R. Arnold v. Bidgood, pèr Cur. 2
Bulſtrode 67. And fo Popham faid, that Unity in Eſtate, and not in Where Unity
Occupation of the Land and Rectory at the Day of the Diſſolution by in Eſtate and
the Abbot, is not a Diſcharge of the Tithes within the Statute, no not not in Occu-
tho' the Land was in Leafe but for one Year at the Time of the Diffolu-pation, is no
Diſcharge.
tion, and though there had been an Unity of Poſſeſſion, Time whereof,
&c. until the laſt Year, or other ſhort Time before the Diffolution.
Mich. 40 & 41 Eliz. Benton v. Trot. Moor 528. Mich. 39 & 40 Eliz.
Button v. Long. 3 Croke 584. And accordingly, when the Caſe was,
K k k k
that
U
530
The Clergy-Man's Law: Or, Chap. XLVIII.
.
AT
rig..
?
Part of
Part re-
Mionalte that an Abbot and his Predeceſſors had been féifed of á Rettory, and
of Land within the ſame Perith, Time whereof, Sc. ühtll the '1' wen-
ty-ſixth Year of H. 8, at which, Time thë Abbot made a Leaſe of the
Tithes dif. Land for Sixty. Years, and by that Leale demifcd all. Tithes renewing,
a Leale, and exc. upon the ſaid Lands; viz. Hay, Corn, 6c. reddendo perinde cera
tảin Cörn Rent, and by the ſame Indenturė, it was covenanted, that
Serv'd, &c. the Leffee ſhall not ſet forth the Tithes of the Hay and Corn to the
Leffor and his Succeſſors, but that the Leffee, his Executors, and Af-
ligns, fhall ſet forth Tithe of Wool and Lanib to the Leſſor, &c. and
fmall Tithe, to the Vicar, &c. And after, viz. the 31 H. 8. the
Abbey wás diſſolved, and in the fame Year was the Statute made,
which enacts, That the Purchaſer thall hold it dilihačged in the ſame
manner as it was in the hands of abbots, &c. in this Caſe it was ad-
judged, when the Lands, and the Tithes' had ſeveral Proprietors, that
this Unity of Poſſeſſion with the other Circumſtances, Thall not dif-
charge the Land from the Payment of Tithes, for there is a De-
miſe of the Land, and of the 'Tithes alſo, which argues that they
were due and payable in themſelves; Șecondly, . Here is a Proviſion
for the Payment of other Tithes ; Thirdly, Here is a Covenant, that
the Tithes' leaſed ſhall not be ſet forth, Fourthly, It is found that
Lamb and Wool were paid in kind, and a Payment of Part of the
Tithes is a Seiſin of all; from which it follows, that the Land had
never been diſcharged by real Compoſition, and ſo that though the
Tithes of Corn and Hay were not paid during the Unity, yet becauſe
they were paid fome Time before the Diſſolution, by. Right they were
payable. Mich. 5 Fac. B. R. Dobitoft v. Curteen, 2 Croke 45 2.
So if 'Tithes were not paid in Time of Memory by a Houſe of Re-
expired beligion, and they leaſe the Land for Years, and receive 'Tithes of their
fore the Dif. Lèffec, the Leaſe expires two Years before the Diſſolution of the ſame
ſolution, Eco
Houſe, the King: ſhall not be diſcharged of the Payment of Tithes by
the Statute of 31 H. 8. by Coke and Walmſlely againſt Warburton and
Foſter. Trin. 9 7ac. Priddle v. Napper, 2 Brownlow- and Gould-
borough 26. And if the Farmers have paid Tithes before the
Statutc, the ſame may be pleaded, and iſſue thereupon may be
taken ; but if the Lands were always occupied by the Abbots, or de-
miſed over, and no Tithes paid before the ſaid Statute, the Land is
diſcharged of the Payment of 'Tithes; Grevil and Trott's Cafe touched
in the Archbiſhop of Canterbury's Cafe, 2 Coke 48. Priddle v. Napper
,
1 Coke :14. Slade v. Drake, Hobart 298. And if Land that was dif-
charged by Unity of Poffeſſion, came to the King by 31 H. 8. then by
Force of the ſaid Branch of Diſcharge of the Payment of Tithes, a
general Allegation, that ſuch Prior, &c. held the Land at the Time
neral Allega- of the Diſſolution of the ſaid Priory, diſcharged of the Payment of
tion is ſuffi- Tithes without ſhewing how, is fufficient. The Archbiſhop of Can-
Cienie uport terbury's Cafe, 2.Coke 48, ſame Cafe, Moor 420. Yet it hath been
Poſlefliori
. held, that'if an Unity of Poffefſion by way of Diſcharge be alledged
generally, without ſhewing how, or adding that it was perpetual, it
is not ſufficient, Mich. 15 Slade v. Drake, Hobart 298. Mich. 10 Jac.
Priddle and Napper's Cafe, in Coke 14. and by Gaudy againſt Pop-
ham and Fenner. Mich. 37. & 38. Eliz. Green v. Boſwin, Moor 420;
but in Priddle and Napper's Cafe, Ti Coke 14, it was asked, what it
an Appropriation was made in Time of Ed. 4. H. 6. H. 4. R. 2 Ed. 3.
&c. and yet in Law within Time of Memory, an Unity had continu,
ed from the Time of the Appropriation, until the Diffolutioni, and
Tithes were never paid by the Abbots, &c. or their Farmers, ſhould
If the Leaſe
When a ge-
i.
not
3
Chap. XLVIII. The Complete Incumbent:
531
ries.
31.
mory,
the Founda-
not the Statute extend to theſe Caſes? And it was anſwered, No, up- onafte:
on the Point of Unity, for if he will have Aid of the Act of H. 8.
the Unity, as hath been ſaid, ought to be perpetual. But in fuch
Caſe there may be alledged the Branch of the Act of 31 H. 8.
concerning the Diſcharge of the Payment of Tithes, Gc. that the Ab-
bots, &c. 'Time out Mind, c. until the Diffolution, have held the
Land diſcharged of Tithes, (as he may well preſcribe by the Common
Law) and give ſuch Evidence, that may prove it ; and ſo if in Truth
the Land be diſcharged, he hath fufficient Remedy to relieve himſelf;
but if the Abbey, or Priory, &c. were founded within Time of Me-
there he cannot preſcribe at all. Mich. 10 Fac. Priddle and
Napper's Caſe, 11 Coke 14. See Engliſh and Jones's Cafe, 2 Kee-
ble 459.
So when Unity of Poſſeſſion, Time whereof, &c. was ſuggeſted, in Defendant
order to obtain á Prohibition to ſtay a Suit for Tithes, the Defendant Unity of por
pleaded that the Abbey to which, Eco was founded 5 Ed. i. (which feflion, and
is within the Time of Memory,) and confeſſed the Unity from the pleaded to
Foundation, per Cur. this Plea in Bar was good to avoid the Unity, tion:
and that it was not needful to traverſe the Preſcription ; for the Shew-
ing the Foundation of the Abbey to be after the Time of Memory, is a
fufficient Confeſſing and Avoiding. But if the Defendant encounter the
Suggeſtion of perpetual Unity, and will ſhew how that the Demeſnes
before, the Statute, and in the Time of the Abbey, were in the Hands
of Farmers, &c. there he ought to traverſe the Preſcription. For al-
though the Poſſeſſion was chargeable in other Hands, yet as to the Fee-
Simple which remains in the Abbot, it is a Diſcharge in Right. Hill
.
45. Eliz. B. R. Gibſon v. Holcraft, Yelverton 31. And accordingly
in this Caſe, the Defendant traverſed the Unity at the Time of the
Diſſolution, and thereupon the plaintiff demurring; Fenner and Clinch
(the other Juſtices being abſent) held the Traverſe to be good; Bụt if
the Diſcharge had been pleaded generally by Preſcription, and not by
reaſon of Unity, then the Preſcription ought to have been anſwered,
and not the Unity; and it was ſaid that, Trin. 34 Eliz. betwixt Cal- Preſcription
mady and Wyther, it was ſo ruled; wherefore it was ajourned: Mich. to be traver-
39 40 Eliz. B. R. Button v. Long, 3 Croke 584.
Neither will Preſcription De Non Solvendo in the Caſe of Unity a- If the Union
vail any Thing, if the Union was not juſt, for if the Abbots, &c. have
held by Abuſe and Wrong, Time out of Mind, Gc: the ſame is no
Unity within the Statute. Mich. 10 Jac. Priddle and Napper's Cafe,
11 Co. 14. b. Pafch. 5 Eliz. Moor 46. So if the Abbot did hold the
Lands and Tithes in ſeveral Rights; therefore when the Cafe was;
that an Abbot had a Manor within the Pariſh of D. and a Compoſition
was made betwixt the Parſon of D. and the ſaid Abbot, that the Par-
ſon ſhould have Yearly, certain Loads of Wood out of thirty Acres of
the faid Manor, for and in Recompence of all the Tithes of Wood
there, afterwards the Parſonage was appropriated to the faid Abbot;
and then the Houfe was diſſolved, and the Manor granted to one, and
the Rectory to another, it was holden that the Portion of Tithes was
revived, for he had them, (ſcil. the Manor and the Tithes) in ſeveral
Rights; and Manwood Chief Baron, and Periam Juſtice, to whom a
Caſe depending in the Chancery was referred concerning the Diſcharge
of Tithes, by Unity of Poſſeſſion; delivered their Opiñionsthat ſuch
an Unity is not any Diſcharge within the ſaid Statute. Trin. 33 Eliz.
B. R. Knightly and Spencer's Cafe, 1 Leonard 3550
K k k k 2
So
532 The Clergy-Man's Law: Or, Chap. XLVIII.
pur-
the Tithes of
Al onaffe-
So when the Caſe was, that an Abbot had a Parſonage appropriate
ries.
in D. which was diſcharged of Tithes, and afterwards the Abbot
Where the chaled Part of the Lands, ſo that the Tithes were ſuſpended during
Tithes were the Poſſeſſion of the Abbat, but after that, the Abbey was ſurrendred
ſuſpended
into the Hands of the King, in the 30 Year of H. 8, and afterwards
during the
Poffeffion of the ſame Poſſeſſion was given to the King, by the Statute of 31 H. 8.
the Abbot,
as they were in the Hands of the Abbot; the Oppinion of Mr. Plowden
was, that the Lands ſo purchaſed by the Abbot before the Surrender,
were not diſcharged of Tithes by the Statute, for that no Lands are
diſcharged by the Statute, but ſuch Lands as were lawfully diſcharged
in Right by Compoſition, or other lawful Means, and the Lands in this
Cafe were not diſcharged in Right, but ſuſpended during the Poffef-
fion of the Abbot in his own Hands, and ſo he ſaid it is, when the Land
is purchaſed by One, and the Parfonage by another, the Right of
Tithes is renewed, and the Lands charged as before the Purchaſe of
the Abbot, and fo it had been adjudged. Mich. 17 Eliz. B. R. God-
bolt, p. 1.
Upion no
Alfo when upon a Prohibition, the Surmiſe was, that the Land out
Diſcharge of of which the 'Tithes were demanded, was Copyhold, Parcel of a Ma-
Copyhold.
nor of which a Prior was feiſed in Fee, and was alſo Parſon Impar-
Sonee; and that by this Union, the Tithes were extinct, it was held,
that the the Surmiſe was not good, for that the Union was no Dif-
charge of Tithes of the Copyholders. Mich. 27 & 28 Eliz. Brunch-
er's Cafe, Moor 219. And ſo Popham held in Benton and Trot's Cafe.
Mich. 40 & 41 Eliz. Moor. 528.
Thoſe Lands that before the Diſſolution, and to that Time, were
Three Sorts
held diſcharged from the Payment of Tithes, whilſt in the actual
diſcharged Occupation and Manurance of the Owners thereof, and diffolved by
from paying the Statute of 31 H. 8. were the Lands held by thoſe of the Orders of
the Ciſtertiansy Hoſpitallers, and Præmonſtrans; for though in the
Time of H. 2. and about the Year 1150, Pope Adrian the Fourth
reſtrained this Privilege to Three Orders, viz. the Ciſtertians, the Tem-
plers, and Hoſpitallers; and after, Pope Clement the Third did, by his
Bull, give the ſame Privilege to the Præmonſtratenſes; See Dicken-
Jon's Cafe. Hill. 1 Car. Bendloes 164. Seldon of Tithes i 20. So that
Four Orders were then fo privileged, yet the Templers being con-
demned for Herefy, and diſſolved in the 4. Ed. 2. there remained but
Three of the aforeſaid Orders that were free from paying Tithes for
the Lands in their own Hands, when the Statute 31 H. 8. was made,
and yet not all the Lands they had at that Time were ſo privileged;
for no Lands obtained by any of thoſe Orders after the Council of
Lateran, which was in the Year of our Lord 1215, were freed from
the Payment of Tithes whilſt maņured by themſelves, and by conſe-
quence no Lands belonging to the Abbies of thoſe Orders that were
founded after that Council are difeharged of the Payment of Tithes,
either in the Owner, or in the Tenants Hands, for by that Council the
Privilege was limited to ſuch Lạnds, as thöfe Orders had at the Time
of the Council, Selden's Hiſtory of Tithes 121. And it hath been held
Council of per Curian, that the Council of Latheran, which thus freed theſe Ora
Latheran, a ders from the Payment of Tithes, was a general Law received in Eng-
in England, w land, and if Lands were diſcharged of Tithes by that Council, that
no After-Covenant or Contract made by any Abbot to pay
Tithes
could difpenfe with this Privilege, or make them liable to Tithes, for
once diſcarged by this Council, and always diſcharged, this Council
being
of Orders
Tithes for
Lands in
their own
Hands.
.
I
Chap. XLVIII. The Complete. Incumbèriti 533
Diffolurioñi
being as forcible as an Act of Parliament which concludes all Parties : Monates
And the Court were alſo of Opinion, that if there were Agreement for
ries.
Payment of Tithes before this Council, that yet the Council as a ge-
neral Law, which includes all Mens Conſent, had diſſolv'd ſuch A-
greement, Paſch. 1657, in Scaccar. Stavely v. Ullithorn, Hardres
Rep. 101, nor were all the Houſes of thoſe Orders not ſurrendred or
diffolved by Statute 27 H. 8. diſſolved, or ſurrendred by Force of Sta-
tute 31 H. S. for thoſe of the Hoſpital of St. John's of Jeruſalem were
diffolved by Statute 32 H. 8. c. 24, and not before, Hurry v. Boyes,
St. John's of
Brownlow and Gouldsborough 2 pt. 8, fo their Lands not privileged were dillol-
from paying Tithes by Statute si H. 8. as will be ſhewed." But the ved by
Lands of ſuch of the Houſes of theſe Orders that were diſſolved by Statute 32 H. 8.624.
31
H. 8. ſhall be free from the Payment of Tithes; fo far as they were
free in the Hands of the Church-men, viz. whilſt they ſhall be in the
Hands and Manurance of the Owners thereof; it is therefore neceſſary
for the Party who pretends to have Advantage of this Privilege, ex-
prefly to ſew and aver, that the Lands are in his Hands and Manu-
rance,
for to ſay, that he is feiſed of the Land is not fufficient, for he
may be ſeifed thereof, and yet another manure theni. Hill. 1 Car.
Dikenſon's Cafe, Bendloes 164, and Noy's Opinion in Sir Richard
Weſtor's Cafe, Bendloes 168, 169. And if the Lands of ſuch Orders
fo privileged were in Leaſe for Years at the Time of their Diſſolu-
tion, and for certain Years before, yet the Lay-Owners ſince the Dif-
Lay-Owners
ſolution ſhall hold them diſcharged whilſt manured by themſelves, for fince the
although the Farmer paid Tithes at the Time of the Diſſolution, yet
as to the Abbot the Inheritance was then diſcharged of Tithes, and
the King or his Patentee ſhall have and hold it diſcharged as the Ab-
bot held it. Hifl. 17 7ac. B. R. Porter. v. Bathurſt, 2 Croke 559, and
Paſch. 13 Car. 2. in Scaccar. Wilſon. V: Reedman, Burtor & al', Har:
dres 190.
Yet when an Abbot having ſuch Privileges had in the Time of Ed:
4. made a Gift in Tail, though the Abbey was diſſolved by the 31 H.
8. it was reſolved, that by the Clauſe of Diſcharge of Tithes in the
aforeſaid Statute, the Donee and his Heirs ſhould not be diſcharged of Where Do
Tithes, for the Statute difehargeth none but as the Abbot was dif- nec and his
charged at the Time of Diſſolution, ſo that they muſt claim the charged.
Eſtate and Diſcharge under the Abbot, but if by a common Recovery,
the Reverſion had been barred before or after the Statute, or if that the
Land had returned to the Abbot, or King, before or after the Statute,
the Caſe had been otherwiſe. Hill. 4 Car: Farmer v. Sherman, Het-
ley 133, ſame Cafe, Hobart 248.
Alſo whilſt the King's Title to ſuch Lands doth remain, ſo that they where the
be manured by his Farmers; or Tenants for Years, or at Will, no King's Far-
Tithe ſhall have been paid of them, although Tithes of them ſhould mers of Te
have been paid by the Farmers, or Tenants of the Abbots, or Priors hants are dif
that had them, and the Reaſon given is, becauſe the King himſelf
cannot manure them; but if the King having leaſed them, granteth
over the Reverſion, or doth ſell them, the Farmers shall pay Tithes;
by Manwaod Chief Baron, 29 Elizi in the Exchequer, the Counteſs of
Linnox's Cafe. 2 Leonard 71, fame Cafe, Owen p. 56. But Tanfield
Chief Baro'n ſaid, that the King's Tenants for Life or Years ſhall not
be free in this caſe, but only his Tenants at Will, Moor 915, and it
was agreed per Curiain, that the King's Patentee is to be intended of
the King's Farmers; not Patentees in Fee, for in the Caſe of the Fo-
reft
Heirs not dif
.:
534
The Clergy-Man's Law: Or, Chap. XLVIII
Monate.
ries.
C. 24. of the
were not
ſurrendred.
reſt of Savernacle, it was agreed, that the King's Patentee ſhould
pay
Tithes. Paſch. 18 Car. 2. Bowles v. Atkins, 2 Keeble 29, ſo it is alſo
ſaid in the Caſe of Compoſt.y:
-Mich. 14, Car. 2. Hardres 315, that
if the King alien any of the Lands whereof he is diſcharged of 'Í'ithes,
his Patentec ſhall pay Tithes, and not only fo, but the Preſcription is
deſtroyed for ever, though the ſame Lands ſhould afterwards come in-
to the King's Hands again by Efcheat, or otherwiſe, however the Re-
verſioner and King's Patentee and their Aſſigns ſhall have the ſame
Privilege that the Abbot had, viz. to hold them free whilſt in his own
H:nds, and manured by him, and not let to, or manured by an-
other. Paſch. 21 Jac. Stonehouſe v. Read, Benlocús 143.
Stat. 32. H.8.
The next Statute after the 31 H. 8. for the Diſſolution of Religi-
Hoſpitals of ous Houſes, Qc. was 32 H. 8. c. 24, which was made on Purpoſe to
St. Fohn's of diſſolve the Hoſpitals of St. John's of Jeruſalen in England and Ire-
Jeruſalem.
land, either for that (as ſome think) thoſe of this Order had Power to
purchaſe, but not to ſurrender, or becauſe they were beyond Sea at
this Time, and would not, nor could not be compelled to ſurrender,
as other Religious Houſes did, whoſe Poſſeſſions therefore are at this
Day held Tithe-free as the Spiritual Men held them, by Virtue of
31
H. 8. although ſurrendred after the Statute was made, and ſo would
Their Lands the Lands of the Hoſpital of St. John's of Jeruſalem without doubt,
and the Templers Lands given to them by Stat. 17 Ed. 2. had they
been ſurrendred as others were, and not diſſolved by ſpecial Act of
Parliament, viz. 32 H. 8, upon which Occaſion great Doubt and Dif-
pute hath been, whether they ſhall be held Tithe-free by the King
and his Patentee, as the Religious Corporations held them, viz.
whilſt they are manured by the Owners thereof. As to which, two
Queſtions have been made, Firſt, whether by the Stat. 3. H. 8. they
were diſcharged ; if not, if by Stat. 32 H. 8. 'I find that when the Café
was, that the Prior of Saint John's of Jeruſalem, &c. made a Leaſe
for Years of a Manor, two or three Years before the Diffolution, and
the Leſſee did pay Tithes to the Church of Rocheſter proprietary,
and after the Diſſolution, the King granted a Reverſion in as ample
Manner as the Prior had the ſame; it was held in Chancery by the
Lord Keeper, Sanders, Southcott and Dyer, upon Conſideration of
Diſcharg'din
Stat. H. 8. C. 13, that after the Lands came to the Hands of the
oner's Hards Reverſioner, they ſhall be diſcharged from the Payment of Tithes un-
until, pr. til they be let out to others to farm. Trin. 10 Eliz. Dyer 277.
After
this, upon a Suit for the Tithes of Lands formerly belonging to the
Templers, and which came to the Crown by the Diſſolution of the
Hoſpital of Saint John's of Jeruſalem, as all the Lands formerly the
Templers
Templers did among others, it was held, that the Patentee of ſuch
Lands ſhould not crave the Privilege to be diſcharged from paying
diſcharged. Tithes in reſpect thereof; for by the Common Law, a Lay-perſon was
not capable of this Privilege.And if ſuch Lands had come to the
King by the Relinquiſhment, or Diſſolution of any Monaſtery, the
King ſhould not have had the Benefit of that Privilege until the Stat.
of 31 H. 8. And by that Statute it is appointed, that all Monaſteries,
Abbies, &c. which before had come, or afterwards ſhould come to the
King by Suppreſſion, Surrender, &c. the King ſhould have in ſuch
Manner and Form, &c. and that he ſhould have them diſcharged from
the Payment of Tithes, as the Abbots, &c. ſo as the Makers of that
Law intended, that by the firſt Clauſe without the laſt, the King
ſhould
the Reverſi-
31
Patentee of
Lands not
I
M
1
Chap. XLVIIț. The Complete Incumbent{
were
ز
ries.
• -
. 535
ſhould not hold them diſcharged; therefore they added that Clauſe. But Bonaftes
this Statute extends only to ſuch Poſſeſſions, which came to the King
by Surrender, &c. and fhould be veſted in him by Force of the ſaid
AA, and doth not extend to Poſſellions which veſted in him by another
Act of Parliament, according to the Rule taken in 2 Gokë fol. 46, in
the Archbiſhop of Canterbury's Cafe. And theſe Lands were here
given to the King, by a Special Act of Parliament, 32 H. 8, which
hath the ſame. Words in the firſt Clauſe as the Act of 31 H. 8, hath,
but hath not the Second, therefore there is no Cauſe of holding them
diſcharged from Tithes. And it was adjudged accordingly, and in the
fame Terı, a like Judgment was between the fame Parties in a Pro-
hibition upon a Demiurrer: Hill
. 2 Jac. B. R. Cornwallis v. Spurling,
2 Croke 57. Hill.'44. Eliz. Quarles
. v. Spurling; Moor 9135 and in
Urrey and Boceyer's Caſe, 2 Brownlow 8, 20, it was holden by Coke
and Nichols againſt Winch and Warburton, that a Purchaſer of Lands
of St. John's of Jeruſalem ſhould pay Tithes, and in the 18 of Jac.
C. B. alt the Judges but Warburton held, that the Purchaſer Tould Purchaſer to
pay Tithes as is ſaid. Noy, Paſch. 3 Car. B. R. in Whittle and Weſton's pay Tithese
Cafe, Godbolt 392, and in Bendloes Rep. Hill. i Car. and Trin.: 2
Car. 168, 1856 And at laſt it was argued at the Bench by the Four
Juſtices. Whitlock-held, that the ſaid Lands were not diſcharged of
Tithes, neither by the 31 H. 8, nor by the 32 H. 8. Hide Chief Ju-
ſtice held, that they were diſcharged by the 32 H. 8, and not by the
Clauſe of Diſcharge in the 3. H. 8, if not, yet by the 32 H.8, fo that of
the Four Juſtices, only Whitlock held, that ſuch Lands were not free
from the Payment of Tithes; therefore Judgment was given that no
Tithes ſhould be paid of ſuch Lands, viz. whilſt manured by the King,
or his' Patentee, and not let to others. Trin. 4 Car. B. R. Whitton y.
Weſton, Jones 182. Latch:89. And afterwards, this Matter came in-
to Queſtion again, and upon a Special Verdiet found, it was adjudged
by Hales, then being Lord Cief Juſtice, that the Lands which came to
the Crown by Stat. 32 H: 8. 6. 24, ſhall not pay Tithes by reaſon of
the Word [Privileges] in that Statute, and here all the Cafes before-
mentioned were cited and confidered. 25 Car. 2. B. R. Foffet v. Frank-
lin, Raymond 225. 3 Keble 208, 217.
After the King had gotten all, both leſſer and greater Monaſteries, 37 H. S.C. 4.
and the Hoſpital of St. John's of Jeruſalem, the Parliament proceeded c. 14. as to
to diſſolve, and give away the Lands to the King belonging to Chan- Chanteries
teries, and Frèe Chapels, for which End the Statutes of 37 H. 8. c. 42 Chapers
and 1 Ed. 6. C. 14, were Enacted, but I find no Caſe of Law adjudged,
or mentioned in the Books, concerning the Lands that came to the
Crown by Stat. 37 H. 8, but only upon thoſe that came by, Stat. i Ed.
6, which ſeems to be the ſame;; and therefore. I ſuppoſe the Law is
the ſame as to both. 14:29
As to the Statute 1 Ed. 6. the Caſe was, that the Maſter of a Col- That Colle-
legė; (the Lands belonging to which came to the King by this Sta- ges coming
tute) held ſome of his Lands with a Rectory Simul & Semel diſcharg- by 1 Ed. 6.
cd of Tithes at the making of this. Statute, and of the Stat. 31 H. 8. came to him
and after the Statute, the Farmer of the Rectory ſuing the Farmer of by that Sta-
the Lands for the Tithes thereof, the Defendant ſhewed this Matter,
and alledged the Branch of Diſcharge in 3.1 H. 8. and it was reſolved,
that the College, &c. that came to the King by i E. 6. came to him
by that Statute only, and not by the general Words in 31 H. 8. All
Colleges,
1
:
536
The Clergy-Man's Law: Or, Chap. XLVIIL
Totaltes
riese
1. Reaſon.
2. Renſon.
are not dira
31 H. 8.
A&t of Par-
Colleges, &c. which bereafter fall happen to be diffolved, 02 by anp
other means come to the King's Highneſs, &c. thall be adjudged to be
in the adual Pollettion of the king, &c. Firft
, becauſe the Words (all
other Means] cannot be intended of an Act of Parliament, being put after
Words inferiour thereunto, as Renouncing, Relinquiſhing, Forfeiture,
Gc. an Act of Parliament being the higheſt Manner of Convey-
ance, upon which Reaſon it hath been adjudged, that Biſhops are
not intended in Statute 13 Eliz. C. 10, by the Words (others hold-
ing ſpiritual Promotions, ] thoſe Words being put after Colleges
,
Deans and Chapters, &c. Secondly, becauſe the Statute of 1 Ed.
6. doth enact, Chat all Colleges, &c. fhall be by fouce of that gå
adjudged to be in the adual and real Polietion of the King; there-
fore that Statute thus enacting, they cannot be in the King by the
former Statute. And it was alſo adjudged, that the Branch in
31
H.
8. did not extend to any other Monaſteries, than what came to the
King by the Statute of 31 H. 8. becauſe what would be given by
another Statute, or that any Thing would be given thereby, could
not be then foreſeen, and that Lands, which came to the Crown by
That Lands the i of Ed. 6. are not diſcharged of Tithes by the Words of that
which came Statute, that the King ſhall have the Lands of Colleges, &c. in as
to the Crown ample and large manner, as the ſaid Prieſts; Mardens, &c. bad
by i Ed. 6.
od enjoped the ſame, for that theſe general Words ſhall not diſcharge
charged by the Land of any Tithes, becauſe they do not iſſue out of the Land,
but are things diſtinct from the Land. Trin. 38 Eliz. B. R. the
Archbiſhop of Canterbury's Cafe, 2 Coke 46, fame Cafe, Moor 240.
Landfrced by As by Act of Parliament, Lands are made perpetually Tithe-free,
liament for a as hath been ſhewed; fo by Act of Parliament, Lands are free from
certain Time. the Payment of Tithes for a certain Time, as by 2. & 3 Ed. 6. in
2 & 3 Ed. 6. which there is this Proviſo, Provided always, and be it enađed by the
Authority afojelaid, Chat all ſuch barren Heath od Wafte-Gżound,
other than ſuch as be diſcharged fou the payınent of Tythes by act of
Parliament, which befože this Time have layen barren, and paid na
Cythes by reaſon of the came Barcenneſs, and now be, o vereafter
fhall be improved and converted into arable Ground of Beadow, thall
from hencefo,th, after the End and Term of ſeven years next after
ſuch jmprovement fully ended and determined, pay Tythe for the
Coin and pay glowing upon the ſame; any Thing in this gx to the
contrary in any wile notwithſtanding.
Provided always, and be it enađed by the Authority afozelaid, Chat
if any ſuch Barren, Watte oz Heath-Cound, bath before this Time
been charged with the payment of any Tythes, and that the ſame
be hereafter improved 02 converted into arable Ground og Peadow,
that then the Dwner og Dwners thereof, lhall during the ſeven years
nert following, from and after the Improvement, pay ſuch kind of
Tythe as was paid for the ſame vefore the ſaid Impzovement; any
Ching in this act to the contrary in any wiſe notwithſtanding. Stat.
2 & 3. Ed. 6. cap. 13.
The Heath and barren Ground intended by this Statute, ought to
be ſuch Land which is barren in its own Nature, and will not bear
tended by
Corn, &c. of it ſelf without very great Coſt in the extraordinary Ma-
the Statute. nuring thereof
. Paſch. 14 Jac. B. R. Witt v. Buck. 3. Bulſtrode 65, and
albeit that it doth yield fome Fruit, yet if it be barren Land quoad agri-
culturam, as to Tillage, which this Statute meant to advance, it is with-
in this Act. 2 Inft. 655, yet it is ſaid by Richardſon, that if ſuch Land
3
yielded
c. 13.
Heath and
barren
Ground in-
Chap. XLVIII. The Complete Incumbent.
537
ture.
'
yielded before the Improvement any Profit
, as if Sheep were kept Diſcharge of
thereon, or if it produced any other Profit that did yield Tithes, fuch
Tithes.
Tithes ſhall be paid as hath been paid thereof. Mich. 5 Car. C. B.
Flower v. Vaughan. Hetley 147. This is by the expreſs Words of the
Proviſo in the Statute : But if the Land be truly barren in its own Na- If barren in
ture, although it paid before its Improvement for Tillage by extraor- its own Na-
dinary Charge, Tithe of Wool and Lamb, yet no other Tithes ſhall
be paid thereof than Wool and Lamb, and that by this Statute. Mich.
1 2 Eliz. Dyer 170, 171. But if barren Land, by reaſon of Sheep,
Úc. kept thereon, might have yielded fome Tithes, and yet no Tithes
were paid thereof, if it be Land capable of a Diſcharge from the Pay-
ment of Tithes, of which this Non-payment may be an Evidence, if
fuch Land by Charge and Induſtry be improved and made fruitful,
yet it ſhall not pay any Tithes; for the Improvement of Land not
Titheable by Law cannot make it become Titheable ; for this were to
alter the Law, and to make a Conſtruction contrary to the Intent of
the Statute, which was to incourage Improvements by freeing ſuch
Land for ſeven Years from paying Tithes, which elſe was liable ; but
not to charge Lands with the Payment of Tithes, which by Law be-
fore the Improvement were 'Tithe-free. Stile's Regift. 625, and the Sta-
tute doth particularly except Lands diſcharged from the Payment of
Tithes by Act of Parliament, that ſuch Lands ſhall not after the ſeven
Ycars be liable to pay Tithes by Force of this Statute ; but if Land
hath not paid 'Tithes within the Memory of Man by reaſon of its
Barrenneſs, occaſioned by Accident only, and not from its own natural if Land was
Sterility, and the Owner, or Occupier, with great Charge makes it fit barren by
for Tillage, Hay, or Paſture, yet Tithes ſhall be preſently paid up- ly, and after
on the Improvement thereof, without reſpect to the Favour of this improved.
Proviſo.
Therefore, if Narſh and Sandy Land hath been covered with Salt- Land gained
Water, ſo that Time out of Mind no Graſs had been there known to
grow, nor any Profit at all thereof made, until at length, by great
Charges and Induſtry, this Ground had been lately gained from the
Sea, by making coſtly Banks and Sca-Walls, and continual Reparation
thercof; yet this yielding no Profit as being barren by Accident only,
viz, through the Flowing of the Sea thereon, and not from its natu-
ral Barrennefs, ſhall have no Benefit of this Statute for ſeven Years,
but ſhall yield a 'Tithe to the Parfon immediately; and though Land
that hath formerly paid Tithe, be after overflown for two, three, or
more Years, the Parſon can have no Tithe for the Time, yet if the
Land be regained, though at great Charges and Induſtry, Tithes ſhall
be paid thereof, as of other Lands, according to the Profit that it
yields; and all this was agreed per Cur. Paſch. 14 Jac. B. R. Witt v.
Buck. 3 Bul trode 65, fame Cáſe. Roll's i Rep. 354, and Sherington
and Fleetwood's Cafe. 3 Croke 475, ſo it hath been adjudged, that
Fenny Land drained ſhall pay Tithes, notwithſtanding this Statute. So Fenny
Hill. 38 Eliz. Moor 430. So if Lands have been full of Thorns and Land drain-
Buſhes, Time whereof, &c. and by grubbing, are made arable, or
meadow Land, Tithes ſhall be preſently paid thereof, notwithſtanding Land mado
this Statute, for ſuch Land of their own Nature are not barren, but Arable.
by Negligence and ill Husbandry became ſo. Sherrington and Fleet-
wood's Cafe, 3 Croke 475, fame Cafe, Moor 909, and Coke Chief Ju-
ſtice ſaid, that it had been reſolved in one Farrington's Cafe, that Wood-
Ground is not barren Ground within this Statute, and that if one do
L111
ſtock
froin the Sea,
Titheable.
ed.
538 The Clergy-Man's Law: Or, Chap. XLIX .
Predial
Tithes.
fock or grub up Wood, and after convert it into arable Ground, tho
by this he hath meliorated the Land, and that by great Coſt and La-
bour, yet he ſhall pay Tithes for this Ground preſently, becauſe the
Land in its own Nature is not bạrren, in Witt and Buck's Cafe
Paſch. 1 Jac. B. R. 3 Bult. 65, and to this: Dodderidge agreed in
Barren Land the ſame Caſe. Roll's 1 Rep. 354. 2. Inft. 655.: And if the Queſtion
or not, how be, whether barren Land or not, it fhall be tried at the Common
Law, and not in the Spiritual Court, Pafch. 13. Car. 2. 1 Keeble 253,
therefore in a Suit for 'I'ithes in the Spiritual Court, if the Defendant
pleads 'tis barren Land, and that Plea be refuſed, or Iffue taken upon
it, there a Prohibition ſhall be granted; but a Prohibition ſhall not be
granted upon Suggeſtion only that 'tis barren Land, before it be plead-
ed in the Spiritual Court. Mich. 14 Gar. 2. B. R. 1 Keble 38.7.
+
CHA P. XLIX.
Predial Tithes, what, and in what man
ner payable, and what Modus Deci-
mandi in Diſcharge of ſuch Tithes is
good.
re Communi,
Land.
1. Predial
Y what hath been ſaid it appears, that 'Tithes are to be paid on-
Tithes,de 7u-
ly for Lands not exempted from the Payment thereof; I am
are only to next to Shew, in what reſpect Titheable Lands are to yield their 'Tithe,
be paid in
or of what Things, with reſpect to the Lands, Tithes are or are not
reſpect of
to be paid. Firſt, Then we muſt remember what hath been ſaid, that
De Jure Communi Tithes are to be paid only in reſpect of Land, of
the Fruits of the Earth, or of ſuch Things which do yield a yearly
Encreaſe by the Act of God, yet not of all ſuch 'Things, or of them
in all Cafes. "That I may therefore ſhew of what Fruits of the Earth,
or Things, 'Tithes by Law are payable, it may be of Uſe here to note,
that Tithes have been divided into Predial, Mixt, and Perſonal. Pre-
dial Tithes are fuch which ariſe meerly of the Earth, as the Fruits
Tithcs, what thereof, of which Sort are all kinds of Grain. 2 Inft. 649, Hay,
Underwood titheable, Trees, and the Fruits of all Trees, as Acorns,
Maſt, Apples, Pears, Cherries, Grapes, &c. 2 Inft. 649, the Seeds of
Rape and Woad, Hops, Saffron, Flax, Hemp; Garden-Herbs, as Mint,
Parſly, Annis, Ruc, Sage, Bc. Mixt Tithes, are thoſe which are from
Tithes, what the Earth alſo, but by Means of Beaſts depaſtured thereupon, or other-
wiſe nouriſhed with the Fruits thereof, as Colts, Calves, Lambs, Roes,
Kids. 2 Inft. 649. Rull's Abr. 1. 635. Milk, Cheeſe, Wool, Eggs,
Chickens, Geeſe, Ducks, Swans, &C. 2. Inft. 649. Perſonal Tithes,
3. Perſonal
Tithes, what
are ſuch Protīts which ariſe by the honeſt Labour and Induſtry of Man,
imploying himſelf in ſome perſonal Work, Artifice, or Negotiation,
as by Bying, Selling, Merchandizing, Fiſhing, Fowling, Hunting,
following any Trade, as of Carpenter, Smith, Mafon, Butcher,
C.
+
2. Mixt
3
This
Chap. XLIX. The Complete Incumbent. 539
Tithee.
ز
This being premiſed, I proceed farther to declare, what Things zenial
are titheable, and what are not; and Firſt, I ſhall ſpeak of Pre-
dial Tithes, as to which thc Tithe of all Corn or Grain ought to Preſcrip-
be duly ſet forth and paid. Yet this Rule doth admit of Exception again
tions, for a Preſcription may be within a Pariſh, that by reaſon Tithes.
that they have not ſufficient Meadow for Milch Kine, and Draught
Cattle, they have uſed to cut ſome of their Tares green, and give
them to the aforeſaid Stock, and to be diſcharged of Tithes for the
fame ; this is a good Cuſtom, and Conſideration ; for that the Parſon
hath an Advantage thereby, as well as the Pariſhioner, viz. in the
Tithe Milk, and Manuring of the other Corn Land; and (Wray) ſaid,
the Matter is the Want of Meadow, and Paſture, and that the Sur-
mife is as if it had been ſaid, that for Want of Meadow and Paſture,
they have uſed to eat their Meadows, with their Plow-Cattle, and for
ſo much as they did eat, to pay no Tithes, which had been good,
Mich. 30 Eliz. B. R. Perry v. Somes. 2 Leonard 27, and the ſame
Caſe, Croke 3. part 139, ſo if a Man according to the Cuſtom of the
Sowing to
Country, doth low his Land to feed his Horſes for Tillage, and the feed Horſes
Uſe hath been to ſuffer the Horſes to be fed upon the Land without
for Tillage
any Mowing of the Grain, the Parſon ſhall not have any Tithes
thereof, becauſe it is no more than Paſture for his Horſes. Mich. 3 Jac.
B. R. and this is ſaid to be one Somes's Caſe of Elex. i Roll's Abra
646. But it ſeems, that without ſuch Cuſtom, green Tares cut to
feed labouring Cattle, ſhall be priz’d Tithes, and fo ſhall the Tithe of
Corn fowed on Headlands, though imployed to the fame Uſe. For
when one libelled for the Tithes of green Tares cut, and Corn fowed
on Headlands, fed with labouring Horſes, a Prohibition was granted,
not upon the general Suggeſtion, but upon the Cuſtom of the Pariſh,
that no Tithes were paid in thoſe Cafes. Hill. 10 Car, B. R. Mead v;
Thirman, Fones 337; fame Cafe; 1 Croke 3936. 1 Roll's Abr. 650, and
in theſe Caſes it is ſaid, that in a Prohibition it is not needful to pre-
ſcribe to be diſcharged of Tithes for ſuch Horſes, for that they be
diſcharged by the Law. Hill. 15 7ac. B. R. K12eebon v. Woodreſt by
Mountague and Dodderidge ; but Haughton thought the contrary, for
that their Labour is in manner of a Modies for their Tithes; but
Clinch and Clarke faid, that of latter 'Times they have not uſed to
preſcribe, but that otherwiſe it was anciently. i Roll's Abr. 646; 647;
İn like Manner, if a Man gather green Peaſe to eat in his Houſe, no Gathering
Tithe ſhall be paid of them, and that by the Law of the Land, but green Peaſe
otherwiſe it is, if he gather them to ſell, or to feed his Hogs. Paſch.
12 Jac. B. R. per Cur. I. Roll's Abr. 647. And in Evidence to
Jury; it was ſaid by (Windham) that of Hay mown to feed Deer, no
Tithes are paid ; but by Glyn and Finch, they are due of common
Right, and ſhall be paid, unleſs there be a Cuſtom to the contrary.
Paſch. 18 Car. 2. Proger v. Venning. 2 Keeble 22.
Of common Right, the owner of the Corn ought to cut down, For not ſet-
and prepare the fame. Mich. 3 Jac. B. R. Perry and Chancery ad- ting out Çorn
judged, 1. Roll's Abr. 644, and to make it up into Sheafs; Cocks, or Cocks; c.
Shocks, Hill. 15 Fac. C. B. Dr. Bridgman's Cafe. Noy 31. Paſch. Ź
Jac. Roll's Rep. 172, and Paſch. 18 Car. 2. B. R. Ledgar v. Lang-
ley. i Siderfin 283, and 2 Keble 25, and if the Owner refuſe to do it;
the Parfon may ſue him therefore in the Spiritual Court; but then the
Suit ought to be Special, for not fetting them forth in Cocks; and not
generally, for not ſetting them forth. Layton's Cafe, Latch 125
Lill 2
Böt
to eat.
:
540 The Clergy-Man's Law: Or, Chap. XLIX.
192edial
Eitheg.
Cuftonis of
ſetting out
i
of common
But having made the Corn into Sheafs, he is not bound to ſet it
up in
Heaps, unleſs the Cuſtom of the Place oblige him thereunto; but ha-
ving bound it into Sheafs, or made it into Cocks, he may ſet forth the
'Tithes thereof, and thereby they become Lay Chattels, Smith's Cafe,
C. B. Gouldsborough, and then he may heap his own Sheafs, or do
with them as he plcaſeth, and the 'Tithes being ſet forth, the Owner
is not bound to watch or look after them till the Parfon carries them
away. Hill. 15 Fac. C. B. Dr. Bridgman's Cafe. Noy 31. Hill. 6 Jac.
B. R. per Cur. i Roll's Abr. 644.
If the Cuſtom of the Place be, to meaſure forth to the Parſons the
Tithe Corn. tenth Part of the Corn whilſt growing upon the Land, this Manner of
Tithing is I conceive to be obſerved, and the Parſon muſt ſit down by
it or if the Cuſtom be, that the Parfon ought to have for his Tithe
of Corn, the tenth Land of Corn, beginning at ſuch Land as is next
to the Church, this Cuſtom is good, and when in ſuch Cafe, the Pa-
riſhioners by Covin, to defraud the Parſon, did not manure and feed
ſuch Lands (the Corn upon which would by the Cuſtom be to the Par-
fon) fo fufficiently as their other Lands, and the Parſon therefore did fue
in the Spiritual Court generally for the tenth Sheaf and Shock, a Pro-
hibition was awarded, notwithſtanding the Covin; becauſe 'twas ſaid,
that the Parfon might have his Remedy at the Common Law for the
Fraud. Pafch. 30 Eliz. Stebbs and Goodlock's Cafe. Moor 913, fanie
Cafe, and 2 Leon. 70. But Wray Juſtice was of the Opinion, that the
Cuſtom was againſt common Reaſon, but agreed that if that Cuſtom
be good, the Parſon ſhall have his Action on the Caſe, for the fraudu-
The Tenth lent Sowing and Manuring of the Lands.
Right.
When the Tithes of any Sort of Corn are ſet forth, the Tenth there-
of muſt be appointed for the Parfon, that is, of common Right; there-
fore if a Preſcription be to pay certain Sheafs of Corn for all Tithes of
Corn, this is no good Preſcription, for the Pariſhioner ought to make
it into Sheafs, and therefore Part of his Duty in kind, cannot be in Sa-
tisfaétion of the Reſidue. Paſch. 13 Jac. B. R. i Roll's Rep. 173.
But where Tithes are not due of common Right, but by particular
Cuſtom, there a Cuftom to pay a leſs Share than a Tenth, without
other Conſideration (as for 'l'ithe Fiſh, &c.) may be good, although
this is left as a Quære. Paſch. 18 Car. 2. B. R. Shippard v. Penrows.
I Siderfin 278. 1 Levinz 179, and 2 Keeble 2. Holland v. Heale.
Noy 108, and when one did preſcribe to pay in one Part of the Land
the third Part of the Tenth, and in another Part the Moiety of the
Tenth of Corn, for all manner of Tithes, the Court did incline that
Of odd
the ſame was a good Preſcription. Hill. 19 Eliz. B. R. Root's Cafe,
Godbolt 7. And if the Cuſtom be, that if the odd Sheafs, or Shocks,
under the Number of Ten, ſhall not be tithed, by reaſon that they ſet
the Tithes up in Heaps, or Shocks, which of common Right the Owner
of the Corn is not bound to do, the Owner is not bound to divide the faid
Sheafs, or Shocks, and ſet forth the 'Tenth thereof, for that ſuch Cu-
If Tithe of ſtom upon ſuch Conſideration is good. Anonymus. Latch. Rep. 226.
Rakings. The tenth 'Sheaf, or Shock, being ſet forth for the Parfon, if the
Owner of the Corn, after the Sheafs or Shocks be carried away,
ſhall
rake his Land on which they grew, by the Cuſtom of this Realm, no
Tithe ſhall be paid of the Rakings, as was faid to be adjudged. 41
&
42 Eliz. B. R. in Grent and Hunt's Cafe, cited in Berd and Adams's
Cafe, Trin: 31 Eliz. Moor 278. 1 Anderſon 199. But in that Cafe
of Berd and Adams, the contrary was 'adjudged, viz. that Tithes ſhall
be paid of Rakings, becauſe the tenth Sheaf, or Shock of Corn, is Sa-
tisfaction
Sheafs or
Shocks.
I
Chap. XLIX. The Complete Incumbent.
541
Titles.
Croke 702
.
tisfaction for no more than the Grain of which it is the Tithe, and no medial
Satisfaction for the Rakings, and this ſeems alſo to be agreed, and it
is ſaid to be adjudged accordingly; Mich, 36 & 37 Eliz. B. R. Jeſop
v. Paine. 3 Croke 363, ſo it is ſaid to have been adjudged in Sir Charles
Moriſor's Cafe, that if one preſcribed to pay the tenth Part of Corn
in the Sheaf, for the Tithes of all that is in the Sheafs, and of all
which is raked, it is a void Preſcription, becauſe the owners of the
Corn are to pay the Tithes of both, and it is an unreaſonable Preſcrip-
tion, for that then the Owner might put the lefſer Part into Sheafs,
and leave the greater Part to be raked. Grifman's Caſe. v. Lewis.
Mich. 37 & 38 Eliz. C. B. 3 Croke 446.
But to reconcile this Difference, if the Cuſtom be laid, to put the Difference
Corn into Sheafs, or Cocks, and to pay the tenth Cock in Satisfaction reconciledd
of the Tithes of the Corn, and of the Rakings, Minis Viluntarie
diſperfed, this is good. Mich. 41 Eliz. B. R. Green v. Hun; 3 Croke
702. Mich. 2 Fac. B. R. Parry v. Chaney, Noy 15, and the Books
generally fay, that if the Corn reaped be not covenouſly ſcattered, or
left unbound, to the Intent to deceive the Parſon, then no Tithes are
to be paid of the Rakings, but if fraudulently left, and raked, the
Tithe of all the Rakings is to be paid. Hill. 8 Car. Saunders and Pa-
ramour's Cafe, per Cur. Mich. 14 7ac. B. R. Joyce and Parker's
Cafe, and Hill. 14 Jac. Peck and Harris's Cafe. i Roll's Abr. 645.
Paſch. 41. Eliz. Awberry's Cafe. Moor 910. Paſch. 14 Jac. B. R.
Pitt v. Harris. i Roll's Rep. 379. Paſch. 41 Eliz. B. R. Johnſon
V. Awberry. 3 Croke 660. Mich. 41 Eliz. Green v. Hun.
3
Sherrington v. Fleetwood. 3 Croke 475, and by Haughton Juſtice in
Folle and Parker's Cafe. Bulſtrode 3. Part 243. Peters v. Prideux.
3
Keeble 251, 284. If a Prohibition be granted upon a Suggeſtion,
that a Perſon is ſued for Rakings, in the Spiritual Court without any
Averment that the Rakings were Minus Voluntarie diſperſed, 'tis
good, for that ought to be ſhewed on the Part of the Defendant to
have a Conſultation, if the Rakings were foul Rakings, and of confi- if fout ia-
derable Value. Pafch. 14 Jac. B. R. Pitt v. Harris. 1 Roll's Rep, kings.
379. Mich. 41 Eliz. Green' v. Hun. 3 Croke 702. Yet in this Caſe of
Pitt and Harris, as abridged i Roll's Abr.645, it is ſaid to be adjudg-
ed, that upon a Prohibition, the Suggeſtion ought to be, that the Ra-
kings were Minus Voluntarie Sparſa, otherwiſe it is not good, and that
it is not fufficient to ſay that they were Lapla & Dilipata in Col-
lettione. See the Caſe of Peters v. Prideux before cited.
3 Keeble
251, 284, neither is it a good Suggeſtion, that in Confideration that
the Pariſhioner having Barley, the greater Part of which he cut down
and bound into Sheafs, and put into Cocks, whereof the Parfon hath
the tenth Cock, that he uſed to leave a ſmall Parcel of the Barley
ſtanding, to the Intent to cut it down afterwards to make Bands for the
Rakings involuntarily fcattered, and to be diſcharged of the Tithes of
this ſmall Parcel of Barley, when cut down. Hill. 8 Car. B. R. Saun-
ders and Paramour's Café. per Cur. 1 Roll's Abr. 650.
As no Tithes are to be paid of the Rakings of Corn duly tithed, ſo If Tithes of
neither of the Stubble left on the Ground in Reaping thereof
, though Stabble or
After-Crop
the ſame be cut for Thatch, or other Uſes, and this Juſtice Tanfield
ſaid, had been adjudged in one Edolp's Caſe. Green and Auſten's Caſe,
Paſch. 4. Jac. B. R. Telverton 86. F. N. B. 53.b. i Roll's Abr. 640,
641, neither is the owner of the Corn, having ſet forth and paid the
Tithes thereof, to pay any Tithe of the After-Crop, or Grotten, or
Grafs
$42 The Clergy-Man's Law : Or, Chap. XLIX.
192cdial
Stithes.
ſelf-rown
Corn.
Tithes of
Graſs of the famé Lands. Baxter v. Hopes. Mich. 9 Jac. Brownlow
and Gouldsborough 2. Part 30. 2 Inft. 552, nor for any Agiſtment in
(rich Lands. i Roll's Abr. 641. Yet I conceive, that if Corn do ſhed
in the fields, being beaten out by Winds, or loſt upon the Ground,
for that it was not ſeaſonably cut, and this Corn doth grow, and be-
come a Crop in the Year following, (which fometimes happens) and is
if Tithes of called felf-lown Corn, Tithes ſhall be paid thereof, as the Tithes of
the Land for the following Year. If Tithe hath been paid of Corn
growing in one Year, and in the next Year the fame Land is not feed-
ed but lies fallow, to the End of making it more fruitful in the third
Year, and then is manured and fown, no Tithe is to be paid for ſuch
Land the ſecond Year. Paſch. 7 Fac. B. R. Smith's Cafe. per Cur.
i Roll's Abr. 642. And it is a good Modus Decimandi; that in Con
ſideration that they that ſow the Lands, ought to reap, bind, and ſever
the Tenth from the Nine, and ſet it up into Heaps, that the Parfon
ſhall not have any Tithes of this Land the next Year enſuing, the
Land lying ley, and not tilled nor converted into Meadow ; for of
common Right the Pariſhioner is not bound to gather, and ſet
up
the
Tithes in Heaps. Hill. 6 fac. B. R. per Car. i Roll's Abr. 649.
The Tithe of Hay alſo of all Lands Titheable in each Pariſh, and
Hay. of Graſs cut for. Hay in Orchards, is a Predial Tithe, and to be yield-
ed to every Parfon and Vicar, who hath Right thereto. 2. Inft
.
652.
Guided by Yet the Payment of this Tithe alſo is directed and guided by Pre-
tions
, etc. ſcription and Cuſtom uſed within particular Pariſhes ; as if in a Pa-
riſh there be a Cuſtom, that the Owners of the Headlands; have uſed
Time out of Mind to make the Tithe of Hay of that Pariſh for the
Þarfon, and in Conſideration thereof, to be diſcharged of the Tithes
growing upon Headlands, being ſmall Headland on which a Team
turns in Plowing, this is a good Conſideration to make the Preſcription
good. Mich. 5 Car. C. B. IVood and Carverer v. Symond. Hetley 147.
Lane's Rep. 16. But a Preſcription, to pay the tenth Part of Corn
for the Hay alſo that grows upon the Headlands, is not good, becauſe
the tenth Part is due for the Corn, Mich. 2 Jać. B. R. Parrey v.
Chaunſey. Noy 15, yet if the Preſcription be; that the Pariſhioner hath
uſed to cut, or reap, bind, or ſhock the Parlon's Corn ; and in Conſi-
deration thereof, to be diſcharged from Tithing the Hay of his Head-
lands, &c. this is faid to be good, and a reaſonable Conſideration; be-
cauſe the Pariſhioner is not bound to reap, &c. the Parſon's Part; and
by the Civil Law, the Parſon is to have the tenth Ridge of Corn.
But this Reaſon I take to be falſe, and contrary to the other Cafes as
before ſhewed, but the Setting the Parſon's Corn into Heaps, may be
a reaſonable Conſideration of the Preſcription ; becauſe this they are
not ticd to do of common Right. Hill. 29 Eliz. C: B. 2 Leonard 70.
But it ſeems, that a Preſcription not to pay the Tithe of Hay growing
upon Headlands, on which the Horſes and Plow turns, is good, without
laying any Thing in Confideration thereof; but then it muſt be averred,
that the Headlands are but fufficient to turn the Plow upon, per Cur, .
Hill. 10 Car: B. R. Mead and Thurland, and Paſch. 15 Car. Bird
and White. i Roll's Abr. 646.
Giving green So if a Farmer do cut down his Grafs, and only doth put it into
Swarths, and then carry it away, and doth give it green to his own
Cattle for their neceſſary Suſtenance, not having Grafs fufficient to
Graſs to Cats
tle:
main-
Chap. XLIX. The Complete Incumbent. . 543
Tithes.
maintain them otherwife, no Tithes ſhall be paid thereof. Mich. 2 Car. Predial
Gi B. Crawley v. Wells. i Roll's Abr. 645.
And if Lands be ſo ſtrong, as to afford two Crops of Hay in one if the After-
Year, and the Occupier of the Land can prefcribe, in Conſideration mowth be
that the Owner doth make the firſt Tonſure into good and ſufficient
diſcharged
Hay, and ſet it forth in Cocks fufficiently dried, that he ſhall be dif-
charged of the Tithes of the After-mowth, this is a good Preſcription
and Diſcharge, by reaſon of his Coſts he beſtowed in making the firſt
Tonfure into Hay: Paſch. 11 Car. B. R. Langford's Cafe reſolved,
and Trin. 36 Eliz. B. R. Johnſon and Keblethwait. i Roll's Abra på
648. Paſch. ii Car. B. R. Anonymus. i Croke 404, and Paſch: 41
Eliz. Rot. 284. 7ohnſon and Awberry's Cafe. 3 Croke 660. Paſch. 4
Fac. Green v. Auften: 2 Croke 116, and Moor 910. Mich. ż. Jac. Hall
and Fettyplace's Cafe. 2 Croke 42. Or if the Preſcription be to be diſ-
charged of the 'Tithe of the After-mowth only, upon Conſideration
that they have uſed, Time whereof, &c. to cut down the Graſs of the firſt
Mowth to feed, and gather the faid Grafs fo diſperſed into Weaks and
Wind-rows, and put it into ſmall Cocks at their own Coſt, this is ſuffi-
cient, though it be made into perfect Hay. Paſch. 2 Jac. Hall v. Fet-
typlace. 2 Croke 42. But it ſeems of the 'After-mowth, that Tithes
De Jure are to be paid without ſuch like Preſcription for a Diſcharge.
Paſch. 41 Eliz. B. R. per Cur. and Hill. 10 Jac. B. R. the Parfon
of Stanfield's Cafe, per Cur. 1 Roll's Abr. 640, alſo ſuch repairing
of the Graſs naowed for Hay, is a good Conſideration upon which to
be diſcharged of the Tenth of all After-profit, that may be made the
ſame Year of the fame Land, ſo that if the After-graſs be caten with
After-graſs
Çattle, no Tithe ſhall be paid for them. Pafch. 4 Fac. B. R. Green eaten.
V. Auften. Yelverton 86. Trin. 4 Car. C. B. Anonymus. Hetly 98. Mich.
42 og 43 Eliz. Johnſon and Popinger. 1 Jac. Eeles and Vachin. 3
Jac. Eeles and Saunder. Hill. 8 Fac. Eeles and Winterbolt. In all
thefe Cafes, Prohibitions were granted in B. R. and Mich. 14 Fac.
Johnſon moved for a Conſultation upon the ſaid Prohibition granted in
the 43 Eliz. againſt Popinger, but it was denied. Paſch. 41 El. B. R.
between Awberry and Johnſon. Paſch. 11 Car. B. R. Langford's Caſe.
Prohibition granted upon ſuch Surmiſe for After-mowth, Paſch. 14
Car. B. R. between Manning and Clapham, a Prohibition was grant-
ed for fatting of Sheep upon the After-paſture. Paſch. 16 Jac. B. R.
between Nicholls and Hopper. i Roll's Abr. 648 and 649. But Pop-
ham faid, that he had known it to be reſolved, that of Right without
any ſpecial Cuſtom alledged, no Tithes ſhall be paid of the Hay of
the After-mowth, for that the Rule of the Law is, that Tithes ſhall
be paid Ex annuatis renovantibus fimul & femel
, and
ſo by Confequence
not of the After-graſs departured, Paſch. 2 Fac. Hall v. Fettyplace.
2 Croke 42. Hobart 250, and it hath been reſolved, that no 'Tithe is to
be paid of After-grafs De Jure. Paſch. 16 Car. Nichols and Hopper's
Cafe, per Cur. and 3 Jac. B. R. Spencer' and Johnſon's Cafe, and
Paſch. 17 Jac. B. R. Kinneſton's Cafe, 1 Roll's Abr. 640. But this
is to be underſtood only where no more Graſs is left by the Sithe than
is uſual, for if Graſs be fraudulently left, the Caſe is otherwiſe. 2
Bulftrode 238. Therefore it is ſaid, that if an Inn-keeper doth pay if Grafs be
Tithe-Hay of certain Land, and the Reſidue of the Year after, doth fraudulently
put into the fame Land the Horſes of his Gueſts which come to the left.
Market in the fame Town, no Tithes ſhall be paid for the Herbage of
thoſe Horſes, for this is but the After-paſture of the Land, whereof he
hath
544 The Clergy-Man's Law: Or, Chap. XLIX.
Pediat
Lithes.
Other Conſi-
Tithe-Hay.
Modus for
continued.
When the
hath before paid Tithes, Trin. 16 Jac. B. R. between Richardſon
and Cable, per Cur. 1 Rolls Abr. 641, nor ſhall Tithes be paid for A-
giſtment in ſuch After-paſture. 2 H. 4. Rot. par Num. 93.
Tho' as hath been ſaid, Tithe-Hay of common Right be to be paid
derations for in kind, yet by Cuſtom, or Preſcription, ſome other Conſideration
may be due and payable in lieu thereof, but then what is paid, how
little ſover it be, it muſt be to the Benefit of him to whom the Tithe-
Hay of common Right was payable; for Example, when one fur-
miſed, that Time out of Mind the Owners of certain Lands had found
Straw for the Body of the Church, in Diſcharge of all Tithes of Hay,
it was held by the Opinion of the whole Court, that this is no
Cauſe of Diſcharge, for that the Parſon was not chargeable with the
finding of the Straw, nor had any Benefit by the others finding it; but
otherwiſe it had been, if it had been alledged, that the Straw was
given to the Parſon, and he beſtowed it in the Body of the Church,
and 'tis ſaid to be ruled, Hill. 30 Eliz. that where one preſcribed, that
he had uſed to pay the Pariſh Clerk his Wages, in Satisfaction of
Tithe-Hay, this was no good Diſcharge. Paſch. 34 Eliz. B. R. Scory
v. Barber. 3 Croke 276.
If there is a Modus fufficient to diſcharge Lands of the Tithe of
Tithe-Hay Hay, and the fame Lands be fowed divers Years with Corn, this doth
not deſtroy the Modus, but the ſame ſhall continue when the Lands
are again turned into the Meadow, and whilſt they are fowed with
Corn, the Parfon ſhall have Tithe in kind thereof. Trin. 107ac. C. B.
Browni's Caſe. Godbolt.
When the Tithe of Hay is to be paid in kind, the Owner ought of
ought
to cut down common Right to cut down and make the Graſs into Hay, per Cur.
and make the Paſch. 13 Jac. B. R. 1 Roll's Rep. 172, for when the Cafe was, that
one had uſed to pay a Load of Hay for all Tithes of Hay growing
Hay, Sepc.
and renewing upon the Land where, &c. and alledged, that they uſed
to make the Graſs into Hay, by their own Labour, a Prohibition was
denied per totain Curiam upon this Reaſon, that the Pariſhioner ought
to make the Graſs into Hay, and ſo this is but 'Tithes in kind, which
cannot be a Conſideration of a Modus Decimandi, no more than if a
Man doth preſcribe to pay certain Sheafs of Corn for all Tithes of
Corn, for he ought to make it into Sheafs, and therefore Part of the
Duty in kind, cannot be a Satisfaction for the Reſidue, per Cur. Paſch.
13 Jac. B. R. 1 Roll's Rep. 172, yet it hath alſo been held, that to
make the Parſon's Hay is more than the Owner is bound to do, and
that the Uſe for making it for the Parſon, may be a good Conſidera-
tion of a Diſcharge as to ſome other Thing. Mich. 5 Car. C. B.
Wood and Carvener v. Symond. Hetley 147. Paſch. 37 Eliz. Rot. 284.
Awbery v. Johnſon, vouched Paſch. 2 Fac. in Hail and Fettyplace's
Cafe. 2 Croke 42. And it hath alſo been held, that the Pariſhioner
is not bound of common Right to ted and ſhake the Graſs abroad, and
to gather it into Weaks or Wind-rows, for that the Tithe may be ſet
forth in Graſs-Cocks, before it be tedded, and that the doing of that
only is a good Conſideration of a Diſcharge of the After-mowth. Hill
.
16 'Jac. Hyde v. Ellis. Hobart 250. Paſch. 2 Jac. Hall v. Fettyplace.
2 Croke 42. i Rolls Abr. 644. But as Moor reports this Caſe of
Hall v. Fettyplace, to make the Graſs into ſmall Cocks is no Conſide-
ration for the Diſcharge, but to make it into great Cocks is a good Con-
ſideration, and fo 'tis ſaid to be held in Johnſon's Cafe. Moor 758, but
this Cafe as reported by Moor is miſtaken, and the Cafe is as reported
by Croke, for ſo it appears by the Roll. From the Reſolution of
3
there
Graſs into
1
,
Chap. XLIX. The Complete Incumbent. . 545
theſe Caſes it ſeems to follow, that Grafs of common Right is Title- Predial
able when it is put into Graſs-Cocks, and not before, for that then the titles.
Tenth may be fevered from the Nine Parts; and accordingly it hath
becn adjudged, per Cur. Paſch. 14 Jac. Hide v. Ellis. Hobart 250.
Contra per Cur. Hill. 14 Jac. B. R. Barbui v. Gooſe. Trin. 15 fac.
per Cur. Popinger v. Johnſon, and a Prohibition denied. 1 Roll's Abr.
644. Quære.
But whatever the Owner is obliged to do of Common Right, the Cutomis to
Cuſtom of cach Place is to be obſerved; and therefore, if the Cuſtom be obſerved
be to meaſure out the Tenth Part of the Graſs ſtanding for the 'Tithe ſtanding
thereof, and that the Parfon ſhall cut and make it, this is good. Hobart Common
250.
And in this and all other Cafes, when the Tithe of the Graſs is
fet forth, and the Owner not to make the Parſon's Tithe into Hay,
the Parſon De Jure may make the Grafs into Hay upon the Land on
which it grew, although the Uſage Time whereof, &c. hath been to
the contrary; and it is needleſs for the Parfon to alledge a Cuſtom for
the doing of it; and the Parſon may paſs over the Pariſhioners Ground
to that End, kecping the Path leading thereto, if there be onc, for
this is incident to the other. Hill. 14 Jac. B. R. Newberry and Reye
nold's Caſc. per Cur. i Roll's Abr. 643. And for theſe Things de-
nied, the Parſon hath Remedy in the Ecclefiaftical Court, and by
Fitzherbert. N. B. may have his Action on the Caſe at Common
Law. Mich. 14 Jac. I Roll's Rep. 420.
The Tithe of Wood being accounted a predial and great Tithe, Tithe of
ſhall next be ſpoken of. Firſt then, The 'Tithe Wood of Copices, wood a prea
and of all Underwoods are to be paid, that is, De jure, after they
are cut, or if there be a Cuſtom for it, by meaſuring for the Parſon
the 'Tenth Acre, Herbert Rep. 250, not only when they are cut to
grow again, but alſo of the Roots and Branches, when grubbed up to
make the Land arable, and alſo the Roots of Hedges or Hedge-rows,
when they ſhall be grubbed up. Trin. 12 Jac. B. R. Price and Mal
cal. 2 Bulft. 238. So Tithes are to be paid of Heath, Turf and
Broom , but if the. Occupier of the Lands hath paid Time out of
Mind T'ithe of Wool, Milk, c. ariſing from Cattle depaſtured there-
upon and in reſpect thereof, hath been free from the Payment of
other Tithes, this may diſcharge him of the reſt. Mich. 28 29 EI.
B. R. Godbolt pag. 44. But of this Conſideration as to the Reaſon of
the Diſcharge, I much doubt: However, if Broom be grubbed up,
the Tithe thereof ought to be paid, altho' that it be grubbed up for the
End of making the Land arable; per Cur. Trin. 12 Jac. B. R. Price v.
Maſcal. 2 Bult. 239. Yet it is ſaid to be adjudged per Curian, that
if a Man doth cut a Copice, and thereof doth pay the Tithe of the
Wood, and then before any new Branches are grown doth grub up
the Roots and Stubs of the Wood, he ſhall not pay Tithes of them,
becauſe they are Parcel of the Freehold, and do not renew yearly.
Mich. 15 Car. B. R. Bedford v. Dr. Skinner. i Roll's Abr. 637. But per
Legem Terra, Tithes of all Underwoods are to be paid, yea, though
the Wood be ſpent for Fuel in the Houſes of Perfons uſing Lands in
bi
the Pariſh where it is cut ; for when the Tithc of ſuch Wood
was demanded in the Spiritual Court, and a Prohibition was grant-
ed upon a Surmiſe, that the Wood was ſpent in the Houſe for
any Houſe or Land within the ſame Pariſh, who pay Tithes to the
Parſon, ought not to pay 'Tithe of. Wood ſpent in their Houſes; and if-
ſue being joined upon the Cuſtom, it was found for the Defendant,
M m m m
and
dial and
great Tithe,
546
The Clergy-Man's Law: Or, Chap. XLIX.
Hearth-Pen-
ny.
Tithes of
!
a Husband-
Dzediat and moved in Arreſt of Judgment, that although it be found that
Lithes.
there is no ſuch Cuſtom, yet no Tithes ought to be paid of Wood
fpent in Houſes, nor for fencing Stuff for Hedges, but that ſuch ought
to be diſcharged of them per Legem Terræ ; yet the Court reſolved
the contrary, and ſaid, that it was uſual in Prohibitions to alledge
2. Sal. 656. Cuſtoms upon Confideration of an Hearth-penny, or that they have
other Lands whereof they pay Tithes, and by reaſon of the Wood
burnt better Tithes, ſo that the Parfon hath a Benefit thereby, but not
to alledge a Difcharge per Legem Terra, and a Conſultation was a
warded. Trin. 4 Car. C. B. Norton v. Fermer. I Croke 113. Pafch.
4 Car. C. B. Norton and Busket v. Hopper. Hetley 88. Therefore if
à Man hath an Houſe of Husbandry with Lands, and demiſeth the
Lands, referving the Houſe, . upon this Rcafon, by Hutton, Tithe of
Fire-wood is payable; and by Harvy, if a Libel be for Tithes of
Hedging, &c. Hedging and Fencing, a Surmiſe ought to be made to diſcharge ſuch
Tithes demanded. Paſch. 4 Car. C. B. Thornbill's Caſe. Hetley 93.
Paſch. 14 Jac. Lane's Cafe. Moor 917. And yet it is ſaid to be held
generally by all the Juſtices, that for Broom, Furs, or any other Fuel
expended in a Pariſhioner's Houſe, no Tithes ought to be paid. Paſch.
40 Eliz. B. R. Auſtin v. Lucas. 3 Croke 609, ſame Cafe. Moor 909,
nor for Wood cut for fencing of Tithcable Lands. Trin. 38 EI. B. R.
Ran. v. Pattefon. Trin. 10 Car. Prowi and Nixon's Cafe. i Roll's
Abr. 644. And though all the Wood cut for Fencing be not ſo im-
ployd, yet Tithes ſhall not be paid of that which remains 3 Cro. 499.
Fuel burnt in And when a Prohibition was prayed to ſtay a Suit for Tithes of Wood,
man's Houſe,
the Plaintiff fuggeſted that he had a Houfe in the Parith, and that the
Ego Uberiores' Wood was cut for Fuel burnt in this Houſe ; the Court ſaid, that this
would not ferve, unleſs it was expreſſed that the Houſe was for Main-
tenance of Husbandry, by reaſon of which the Parlon had Uberiores
Decimas. Pafch. 22 Car. 2. B. K. Anonymus. i Ventris 75, the
fame Cafe, 2 Keeble 628, this Caſe feems to admit, that Wood cut
for Fuel to be ſpent in Houſes for Maintenance of Husbandry, by the
Law of the Land is Tithe-free ; yet when to have a Prohibition it
was ſuggeſted, that there was above 400 Acres of arable Land within
the Pariſh, and that the Corn thereon growing, could not be preſerved
without fencing the Land whereupon it grew, and that the Tithes of
Preſcription the Corn fo fenced, had always been paid to the Impropriator, &c.
for fencing and that within the Pariſh there was this Cuſtom, That if any Under-
wood be cut and imployed in fencing the Corn, whereof Tithes are
to be paid, and do not ſell, nor otherwiſe diſpoſe of it, ſuch Under-
wood hath been always diſcharged of Tithes, and ſhews that the Un-
derwood cut was ſo imployed in fencing the Corn, 6c. In this Cafe,
in as much as the Corn fenced did not appear to be the plaintiff's own
Corn, (although the Plaintiff did aver, that he did not fell any of the
Wood, it was ađjudged, that the Preſcription was not good, for that
if the plaintiff give his Wood to others to fence their Corn, Tithes
ſhall be paid for fuch Wood : But Wild Serjeant, being of the Counſel
with the plaintiff
, ſaid, that the Cafe deſerved greater Confideration
than the Court took of it. Hill. 19 e 20 Car. 2. Croucher v. Collins.
1. Sanders Rep. 141, fame Cafe. 2 Keeble 319. If Wood be cut to
make Hop-poles, where the Parfon or Vicar bave Tithe-Hops, no
Tithes ſhall be paid of this Wood. Hugh. Abr. 689. However by
Cuſtom Tithes may be paid of Wood conſumed in ani Houſe. Mich. .
14 Fac. B. Watley and Hirnfurie's Cafe. i Roll's Abr. 642. And by
4
Cuſtom
Decimas.
1
Chap. XLIX. The Complete Incumbent.
547
Tithes.
Timber-
Trcess
Cuſtom alſo, upon a Conſideration, Wood ſpent in the Houſe without Dredial
Doubt may be Tithe-free ; for H:itton faid, that it is a Cuſtom in the
North Parts
, to give an Half-penny for Eftovers burnt, by which they
are free from the Tithe of Wood burnt for Fuel. Paſch. 4 Car. C. Bi
Wolmerſton's Cafe. Hetley 85, and by Hutton, Croke and Yelverton:
Trin. 4 Car. Nortor's Cafe. Hetley 88, fame Caſe. Littleton's Rep.
143. See alſo in the fame Book, fol. 5, and Paſch. 4. Car. C. B.
Thornhill's Caſe, Hetley 93, if a Man cut his Woods, and burn it to
make Bricks for the Reparation of his Houſe within the Pariſh, for
the Habitation of him and his Family, no Tithes ſhall be paid there-
of, becauſe that the Parſon had the Benefice of the Labour of his Fa-
mily.
Alſo, if a Man cuts his Woods, and burns it to make Bricks for the
Enlargement of his Houſe within the Pariſh, for the neceſſary Habi-
tation of his Family, no Tithes ſhall be paid for ſuch Wood. But if
a Man cut his Wood, and burns it to make Bricks for the Enlarge-
ment of his Houſe within the Pariſh, more than was neceſſary for his
Family, only for his Pleaſure and Delight, he ſhall pay Tithes there-
of; and a Conſultation was granted accordingly, where the Plaintiff
in the Prohibition had affirmed, that he burnt it for the Reparation
and Enlargement of his Houſe generally, without ſaying, for the ne-
ceſſary Habitation of his Family ; for the Court ſaid, that by this
Surmiſe he might make a Caſtle, and yet pay no Tithes. Trin. 10
Car. B. R. Nixon and Brown's Cafe. per Cur. i Roll's Abr. 656.
It ſeems, that in ancient Times Controverſy was betwixt the Cler-
gy and Laity about the Tithes of Timber-Trees, which was ſettled
by Act of Parliament, as followeth. Item at the Complaint of the
the ſaid great men and Commons, chewing by their petitiont, That
whereas they ſell their great Wood of the Age of Twenty Years, od
of greater age, to merchants to their own profit, oj in Aid of the
King in his Wars, Parlons and Wicars of yoly Church do implead
and draw the ſaid merchants in the Spiritual Court for the Tythes
of the ſaid (Uood, in the Name of this wozd called Sylva cæduay Sylua ceduä:
whereby they cannot ſell their Woods to the very Walue, to the great
Damage of them and of the Realm : jt is oldained and etablighed, ,
That a Prohibition in this Caſe ſhall be granted, and upon the ſame
an Attachment, as it hath been uſed before this Time. Stat. 45 Ed.
3. C. 3. Fitz. Nat. Nat. Br. 51. Pafch. 26 Eliz. B. R. Daws and
Mollin's Cafe. 2 Leonard 79.
By this Statute it is out of Doubt, that Timber-Trees of Twenty
What time
Years Growth or more, that are apt for 'Timber, are free from the ber-Trees
Payment of Tithes, and are ſaid to be Parcel of the Inheritance. free from
Mich. 12 Jac. B. R. Stamp v. Clinton, alias Lifford. I Roll's Rep. 100,
and Hill. 2 Jac. Rot. 229. Brook and Roger's Cafe, there vouched
and reported. Moor 908. But ſtill the Doubt remains what Trees are
to be accounted great Wood or Timber by the aforeſaid Statute, and
thereby made free from yielding a Tithe ; and firſt it is evident by
the Statute, that none under the Age of Twenty Years, of what Sort
or Benefit foever they may be of, for the Uſe of Building, are thereby
accounted great Wood, and Tithe-free. Hill. 44 Elizi B. R. Foſter
and Peacock v. Leonard. 3 Croke, p. 1. Paſch. 5 Jac. Man. v. So-
merton. i Brownlow and Gouldsborough 94. And yet it is ſaid to be
held by Wray and Clench, that if one doth cut Trees which are or
M m m m 2
may
Tithes:
$48 The Clergy-Man's Law: Or, Chap. XLIX.
Orcial
Tithes.
If Oaks,
ah be cut
under Agc.
Titheable.
1
may be Timber-Trees, or Oaks, Eims, Úc, although they be under
the Age of Twenty Years, no 'Tithes are due for them. And ſo if
Trees of that Age be cut, and new Germins grow, no Tithe is due,
Elms and though they be cut under
that Age. Paſch, 29 Eliz. B. R. 3 Croke 55,
fame Cafe, Moor 908. However, it is to be granted, that if any ſuch
young 'Trees, or others
, be cut for Houſe-boot, Hedge-boot, Plough-
boot, Cart-boot, or Fire-boot, no Tithes be due thereof, Hill 43 Eliz.
Ramſey's Cafe, Gouldsborough 145, 172, nor are all Trees, if of
Twenty Years Growth or more, free from the Payment of 'Tithes,
Paſch.'s Jac. Moon v. Sorizerton, ? Brownlow and Goudsborough 64
and
yet there is no Queſtion but Oak, Elm and Aſh of that Growth
are free, as being moſt uſeful for the Bụilding of Houſes and Ships, and
therefore moſt valuable, and of theſe therefore the Statute is intended.
Hill. 17. Eliz. B. R. Sobý v. Molyns. Plowden 468. And 'tis made a Quare,
Whether the Parſon, by
Preſcription, may have the Tithe of ſuch Trees a
If Beech be gainſt the Common Law, and Statute of Sylva Cedua. 1 Roll's Abr. 640.
But as for Beech, Tanfield Juſtice held, that by the Common Law they
are not 'Timber; and ſaid, that it was ſo adjudged in Cary and Paget's
Caſe; therefore of Common Right they ought to pay Tithe of what
Growth foever they be. Trin. 38 Eliz. Leonard's Cafe, 1 Roll's Abr.
l.
640. But this is to be underſtood to be true but in ſome Woody Coun-
tries, where better Trees are plentiful, for in Buckinghamſhire, and ſuch
like Countries, where Wood is ſcarce, Beech is accounted Timber, and
there it ſhall have the Privilege of being Tithe-free. Pafch. 5 Jac.
Man v. Somerton, 1 Brownlow and Gouldsborough 94. Paſch. 14. Fac.
B. R. Lapthorn's Cafe, : Rolls Rep. 355. Hill. 15. Faci C. B. Pin-
der v. Spencer, Noy 30. Mich. 39 & 40 Eliz. Holiday v. Lee, Moor
541. But Birch is not accounted Timber in any Country, nor is it
ſuch Wood as the Statute intends by the Name of groſs Woods, as
not being uſeful for Building, therefore a Tithe thereof ſhall be paid,
although it be not cut until it be above
Twenty Years Growth, Hill
.
44 Eliz. B. R. Foſter and Peacock v. Leonard, 3 Croke, p. 1, ſamo
Cafe, Moor 707. Anonymus, 2 Croke 199. And the Law is the ſame
to Willows, Guſly v. Pinder, Hobart 219. Noy 30, though they grow
by a Houſe, and it be Waſte to cut them, reſolved, Mich. 5. Jac. B:
Aſp, Hol-
R. I Roll's Abr. 640, the ſame as to Aſp, Hill. 43 Eliz. Ramſey's Cafe;
y Olders, Gouldsborough 16i, fo to Holly, Olders and Maples, Anonymus, 2 Croke
199. Mich. 5 Jac. Roll's Abr. 460, and to Hornbeam, Hazel, Shallows,
and ſuch other like Trees of baſe and inferior Nature unfit for Buildings.
Hill. 17 Eliz. B. R. Soby v. Molins, Plowden 468. But peradventure
the Scarcity of other Timber, and Cuſtom of the Country, to put theſe
Trees to the Uſes of good Timber, may free them, being Twenty
Years Growth or more, from the Payment of Tithes. Hill. 15 Jac.
C. B. Pinder v. Spencer, Noy 30.
And although Trees once good Timber, do ſtand ſo long as to be fit
be ſpoiled,
at length for no better Uſe than Fire-wood, and are cut for that Uſe;
yet no Tithes ſhall be paid thereof, for that being once diſcharged of
Tithes, they ſhall always be diſcharged. Trin. 38 Eliz. B. R. Ran.
v. Pattenfoni, 3 Croke 477, fame Cafe, Gouldsborough 145. Mich. 39
& 40 Eliz. Holiday v. Lee, Moor 541. Mich. 3 Jac. B. R. Brook and
Rogers's Cafe, 2 Croke 100. Mich. 12 Jac. B. R. Stamp v. Clinton
alias Lifford, 1 Roll's Rep. 100. Yet Croke is ſaid in his Argument
of this Cafe to hold, that for ſuch Trees Tithes ought to be paid.
Birch.
Willows.
If Timber
Atand till it
Ego co
3
Such
Chap. XLIX. The Complete Incumbent. .
549
Tithee.
Such Trees as are diſcharged from the Payment of Tithes, are free Prediat
not only as to the Trunk or 'Timber it felf, but alſo as to the Bark,
Root and Germins that grew upon the ancient Stock. Mich. 12 Jac. Tithe-frce as
B. R. 1 Roll's Rep. 100. Coke 11. 48. b. Lifford's Cafe, and likewiſe to the Bark;
as to the Branches, although that they be lopped every Seven Years. mins, &c.
Hill. 38 Eliz. B. R. Ram. v. Pattenſon, Moor 980, Hill. 2 Fac. Brook
v. Rogers, Moor 908, fame Cafe, 2 Croke 100. Pafch. 9 Fac. C. B.
Dr. Newman's Cafe, Godbolt, Hill. 17 Eliz. B. R. Soby, v. Molyns;
Plowden 468. 1. H. 4. 89. ! Roll's Rep. 100. Littleton's Rep. 149.
Doctor and Student 175. Nor is it material, whether they be lopped
within every Twenty Years or not, for they remain ſtill free. Trin. 2
Fac. in Reynold's Cafe, Moor 762. Trin. 38 Eliz. B. R. Ram. v.
Pattenſon, 3 Croke 477. Sampſon and Worthington's Cafe, 1 Roll's
Abr. 640. But if ſo be that Timber-Trees, that be 'Twenty Years
Growth or more, were lopped before they were of that Growth, in
which Cafe the Loppings are to be tithed,) and then after the Twenty
Years they be lopped every Ten or more Years, Tithes ſhall be paid of
fuch Loppings. Hill. 2 Jac. Brook v. Rogers, Moor 908. But then
the Parfon fuing for the Tithe of ſuch Loppings in the Spiritual Court,
if a Prohibition be brought, to have a Conſultation, he ought to al-
ledge and fhew this in the Temporal Court. Pafch. 26 Eliz. B. R.
and Mollin's Cafe, 2 Leonard 79. i Siderfin 300. From which it
may be collected, that although the Trees be of more than Twenty
Years Growth, or fo old that their Age is not known, upon which
Account it cannot be proved that they were lopped before they were
Twenty Years old, yet if the Tithes of the Loppings have been uſu-
ally paid, this may be ſufficient, for that it may well be preſumed that
they were lopped before the Trees for their Age did by Law become
Tithe-free. Yet note, That it is ſaid to be held by the whole Court, Topt when
that if a Man doth top a Tree under the Growth of Twenty Years, Growth, and
and ſuffering the Body to remain, doth after it is Timber, and free lopt again
from the Payment of Tithes; lop it again, no Tithes ſhall be paid of after "tis
ſuch Loppings. i Brownlow and Gouldsborough 33, and Mich. 10 7ac.
by Coke, i Roll's Abr. 640. But if there be a Wood commonly uſed
as Coppice, and the Owner will let it grow till it be Forty Years
Growth, to the Intent it may not pay Tithes, yet when it is cut it
ſhall pay Tithes; for one ſhall not by this Means avoid the Payment
of Tithes, ſo long as the Wood cut is intended for Firing. Mich. 18
Car. 2. B. R. i Siderfin 300, the fame Cafe, 2 Keeble 90, and Le-
cinz 189.
Not only the Loppings of Timber-Trees ſhall be free from the Pay- Trees Tithe-
ment of Tithes; but theſe Loppings, as the Cafe may be, may free able growing
Sparfim a-
the Loppings of other Trees in their Nature titheable, and alſo Under-
mongfi Tiin-
wood from yielding of Tithes to the Parſon; for if there be a Wood, ber.
the moſt part of the Trees therein being 'Timber, and free from Tithe,
and there do grow Sparſim amongſt theſe Trees, other Trces in their
Nature tytheable, and the Owner doth fell the whole Wood, and
cauſe it to be promiſcuouſly cut out; and bound up into Faggots to-
gether, for that the moſt part of every Faggot is of Wood Tithc-free,
and the Reſidue of ſo little Value, that the Severance thereof from the
Tithe-free Wood would not quit the Charge; in ſuch Cafes, Tithes
ſhall not be paid for any of the Wood or Faggots. But on the other
Side, if moſt part of the Wood be Underwood, or Trees titheable
when cut, and Sparſim there grow Oaks, Gci and the Owner cuts
down
Timber:
550 The Clergy-Man's Law: Or, Chap. XLIX.
72cdial
Tithes.
nard 79.
of Wood
down all the Wood, and makes it into Faggots promiſcuouſly; in ſuch
Cafe, Tithes ſhall be paid (I ſuppoſe) of the Whole, by Parity of
Reaſon. Paſch. 26 Eliz. B. R. Dawes and Mollins's Cafe, 2 Leo
Yet it is faid, that in this very Caſe a ſpecial Conſultation
was granted upon a ſpecial Plea, that the Faggots were Part of Wood
tithcable, Buckhurſt" and Newton's Cafe, 3 Croke 347, by which it
if the greater ſeems to be then taken, that the greater Part being Tithe-free Wood,
Part of the ſhall not free the leffer. However, if in this Cafe, only fome ſmall
Faggots is
Part of the Faggots is of Wood Tithe-free, (poſſibly put in with De-
Tithe-frec. ſign of defrauding the Parſon) and the Parſon fuing in the Spiritual
Court for the Tithes of the Faggots, a Prohibition is obtained upon a
Surmiſe that they are made of Wood Tithe-free; the Parſon to have
a Conſultation muſt ſhew the ſpecial Matter, viz. how much of the
Faggots were of titheable Wood, and that the Wood Tithe-free was
-fo intermixed therewith, that he could not otherwiſe ſue than for the
Faggots, and thereupon pray a Conſultation as to the titheable Wood,
otherwiſe no Conſultation is to be granted. Mich. 36 & 37 Eliz.
Buckhurſt v. Newton, 3 Croke 347. Hill. 43 Eliz. Gouldsborough 127.
Sce Mich. 18 Car. 2. Cornell v. Haws, i Siderfin 300, the fame Cafe
,
2 Keble go.
Fruit-Trees,
As of Wood and Trees for Fuel, &c. as is aforeſaid, Tithes ſhall
&c. planted be paid; ſo if young Fruit or other 'Trees planted in a Nurſery upon
in a Nurſery. Delign to be rooted up, and fold to/be planted in other Pariſhes,
Tithes ſhall be paid thereof. Hill. 14 Car. B. R. Gibs and Wybourne,
1 Croke 526, fame Cafe, Fones 416, and i Roll's Abr. 637. And
Equity
upon a Bill in Equity for the Tithes of a Nurſery, at hearing of the
Caufe, divers Doubts and Queſtions were made: Firſt, Whether
Tithes ſhould be paid of Nurſeries, if they yield no other Fruit ?
Secondly, Whether Tithes ſhould be paid for thoſe Trees that yield
Fruit which pay Tithes ? Or, if ſome yield Fruit, and fome not,
whether or no thoſe Trees that yield Fruit ſhall privelege and exempt
other that yield none, when they are ſold together And Laſtly,
Whether Tithes ſhall be paid for them when they are ſold and tran-
ſplanted within the ſame Pariſh? And it was decreed, that Tithes
were payable in all fuch Caſes. Mich. 16 Car. 2. Scaccar Hardres
380.
Whatever the Parſon's Due be as to the Tithe of Wood, or Trees
Preſcriptions of Common Right, yet by Cuſtom, or Preſcription upon a Conſidera-
from Tithes. tion alledged, a Perſon, Town, or Hamlet, may be freed from the
Payment thereof. As for Example: If a Parſon hath a certain Wood,
or a certain Parcel of Wood, allotted to him by the Lord of a Manor,
and that in Conſideration thereof he and his Tenants have been 'Time
of Memory free from the Payment of the Tithe of their Underwoods
and titheable Trees within the Pariſh, or the like ; this is a good Dif-
charge. And Coke faid, that in the Pariſh where he lived, Tithe had
not been ever paid of Wood, and that the Parfon had a Wood which
is called the Tithe-Wood, for which he pays yearly to the Lord
Four-pence, of whom he holds it; and therefore it ſhall be intended,
that it was given upon a Conſideration for all Tithe-Wood within that
Pariſh, for that no Tithe-Wood hath ever been paid there. Paſch. 14
Jac. B. R. Lapthorn's Cafe, 1 Roll's Rep. 355.
But if one preſcribes to pay a certain Ráte for the Tithes of all Wil-
lows cut down by him within the Pariſh, this is not good, unleſs he
ſay upon his own Lands. Mich. 28 Eliz. B. R. Godbolt 60, and Lin-
wood,
Cuſtoms and
Tithes of
Willows
I
Chap. XLIX. The Complete Incumbent.
551
wood, and Doctor and Student, fol
. 166. b. ſay that a whole Country Predial
may preſcribe in Non Decimando; and likewiſe, ſo we find that in a
Suit for the Tithe of Underwood in the Wild of Kent, a Prohibition if Under-
was prayed upon a Suggeſtion, that they had a Preſcription to be dif- wood in the
charged of the Payment of the Tithe of Underwood growing in the fore.be
Wild there, (which is ſaid to contain about Forty Pariſhes:) But Coke Titheable.
Chief Juſtice anſwered, 'That what was faid by Linwood and Doctor
and Student, was with this Proviſo, That there be beſides this ſuffici-
ent Maintenance for the Parſons, otherwiſe it is not good; and that
the Statute of 2 Ed. 6. C. 13, did not at all aid in this Cafe, for that a
private Man cannot in this Manner preſcribe; yea, and that the Sta-
tute was againſt them, although that no 'Tithe had been ever paid:
And further he ſaid, that 110 Tithe could be paid formerly of Under-
woods in this Placc, becauſe there were only great 'Timber-Trees there
growing, which are free by Law; but now theſe Trees being deſtroy
ed by Iron Mills, and Underwood being grown up in the Plage of
them, Tithes ſhall be paid thereof as in other Places: And the whole
Court was clearly of this Opinion. And Dodderidge faid, that by
Linwood and Doctor and Student, a whole Country may be diſcharged
of the Payment of Tithes, but this at the firſt of Neceſſity ought to
have a lawful Commencement by Way of Compoſition, or the likė,
which could not here be ſhewed: And with him, Coke and the whole
Court agreed, and ſo a Prohibition was denied. Mich. 12 Jac. B. R.
Rullel v. Barkhurſt, 2 Bulſtrode 285. Paſch. 12 Jac. B. R. Porter v.
Tike, i Roll's Rep, 22. Yet to my Knowledge no Tithes of Wood Meta
are at this Dry paid in the Wilds of Kent and Subex upon the Pre-
tence of ſuch Preſcriptions, and they have been upon Trials allowed to
be good. And ſo Finch Recorder ſaid, that it was reſolved in one
Dawley's Caſe for the Wild of Suplex, and Mich. 13. Jac. B. R. and
in the Cafe of Porter and Dike for the Wild of Kent, that their Pre-
fcription De non Decimando was adjudged good, Norton's Caſe. Irin.
4 Car. C. B. Hetley 110. So where a Prohibtion was granted againſt
the Proprietor of the Parſonage of Tunbridge to be diſcharged of
Tithes of Wood, and upon a Suggeſtion that it was within the Precinct
of the Wild of Kent, which Time whereof, &c. was diſcharged of
Tithes; the Preſcription was traverſed, and found for the Plaintiff
, and
allowed to be good, on Mich. 17 Jac. B. R. Earl of Clanrickard's
Cafe, Palmer 37. And theſe Preſcriptions of Non Decimando for
Wood have been allowed alſo for other Places, and chiefly, as I ſug-
poſe, upon this Reaſon, That Wood is not tithcable of common Right,
but by Cuſtom only, it is ſaid, that the Tithe of Waod was firſt in-
troduced to be paid to the Clergy in the 17 Ed. 3. by Canon mađe
by John Stratford Archbishop of Canterbury. Palmer 38. 2 Roll's Rep. 2 Dano. 585.
122.) and therefore aș by Cuſtom Wood is made titheable, ſo by the
like Cuſtom it may be exempt from the Payment of Tithes; but ſuch
Prefcriptions of Non Decimando have never been allowed to diſcharge
Corn, Hay, or any ſuch like Thing which be of conimon Right tithc-
able.
As of divers Sorts of Trees Tithes ſhall be paid, fo of the Fruit Tithe of A-
and though Timber-Trees of the Age of Twenty Years, or corns, content
above, with the Roots, Germins, Barks and Loppings be free from
yielding of Tithe, yet of Acorns or Maft fevered from the Trees, 'Tithes
are to be, (which are alſo predial Tithes) becauſe theſe renew yearly.
Lifford's Cafe, Coke Ik. 49. » Rall's Rep. 100. Trin. Jac. Reynolds
Cafe,
F.
thereof;
.
552
The Clergy-Man's Law: Or, Chap. XLIX.
Tithe of
Grain.
New Or-
Predial Cafe, Moor 762. But then the Acorns muſt be gathered and fold, for
Tithes.
if they in the Scafon drop from the Trees of themſelves, and the
Owner's Hogs doth cat them no Tithe ſhall be paid thereof. Trin. z
Car. Hetleg' p. 27. Littleton Rep. 40.
And as of Acorns and Maſt Tithes are to be paid, fo of the Fruits of
Pruit-Trees, all other Trees, whereof Profit may be made, the Tithe is to be paid; as
of Apples, Pears, Cherries, &c. which Fruits if they be ſtolen, and not
gathered by the Owner, the Parfon as well as the Owner ſhall bear
the Lofs; but if the Owner doth ſuffer a Stranger to pull or take his
Fruits, the Tithe ſhall be anſwered; and ſo it is
, if he ſuffer them to
hang too long by Negligence, and after that Time they be imbeziled.
Trin. 4 Car. B. B. Anonymus, Hetley 100. If the Soil of the Orch-
If Orchards ard be ſown with any kind of Grain, the Payment of the Tithes of the
be fown with Fruit of the Trees ſhall be no Diſcharge for the Tithes of the Grain,
for that they be of ſeveral and diſtinct Kinds, 2 Inft. 652. But if a Man
doth pay
Tithes for the Fruit of the Trces, and afterwards doth cut
the fame 'Trees, and make them into Billets or Faggots, and ſell them,
he ſhall not pay Tithes for the Billcts or Faggots, for that is not á
new Incrcafe. 2 Inftit. 651, 622. Alſo of all Garden-Herbs, as Mint,
Parſly, Annis, Rue, Sage, Cabbage, Turneps, &C. Tithes are to be
paid, and they are Minute Tithes, Palmer 222, but in many Places
by Cuſtom, ſome ſmall Rate, as Four-pence, &c. is paid for the Tithe
of an Orchard, or Garden, and if in a place where ſuch Preſcription
is, a new Orchard be planted, the Owner thereof ſhall be Tithe-free
chards plant- of it
, paying the accuſtomary Rate as for the old Orchards. Paſch. 4
c
Car. B. Wolmerſton's Cafe, Hetley 85. Yet Hutton faid, that if a Man
Ancient Gar- had an ancient Garden, for which he paid a Penny yearly, and that
den enlarged. is enlarged, of that Enlargement Tithes ought to be paid in Specie.
Paſch. 4 Car. C. B. Thornill's Cafe, Hetley 94. But the Reafon of
this Cafe is; (I ſuppoſe) becauſe the Preſcription was particular for that
Garden only. But if the Cuſtom of the Pariſh had been, to have paid
yearly a Penny for each Garden in the Pariſh, the Addition, or En-
largement of a Garden would not make any Tithes due in Specie.
Rapc-Seed, Ålfo Tithes ſhall be paid of Rape-Seed, Saffron, Hops, Flax, Woad,
Hemp, Weld, and of the like Fruits yielded by the Earth, and theſe
are not to be accounted Predial, but Minute Tithes. Palmer 222.
Udal and Tindal's Cafe, Hutton 77; fame Caſe. I Croke 28, and
Bendlow's 139, 159. And as to Hops, the Owner is not bound to dry
them before the Tithe be ſet forth. 1 Roll's Abr. 644. But how the
Tithe of Hops ſhall be ſet forth, whether by the Tenth Pole, or by
Meaſure, is not agreed, as is ſaid by Twiſden Juſtice in the Caſe of
Ledgar v. Langley, Paſch. 18 Car. 2 B. R. 1 Siderfin 283, 443, and
there cannot be a Prefcription of a Modus for Tithe Hops, becauſe the
Court will take Notice that Hops have not been Ancient, but uſed in
Beer of late Time only; yet a Preſcription to pay !o much in Lieu of
all ſmall Tithes may be good for Hops, and ſuch other ſmall Things of
new Invention. Hill. 21 & 22 Car. 2. Crouch v. Riſden, I Siderfin 443
i Ventris 61.2 Keble 612.
Honey and Honey and Wax of Bees, being Predial Tithes, ſhall here alſo be
Wax of Bees, ſpoken of; as to which, the Tithe of Honey, and Wax of Bees in an
Hive, &c. ought to be paid in Kind de Jure, as was adjudged in a Pro-
hibition upon a Demurrer. Mich. 15 Car. B. R. Barefoot and Nor-
ton's Caſe, i Roll's Abr. 635, fame Caſe, Fones 447, and Croke 559.
F. N. B. 41. ä. But when one preſcribed to be diſcharged of the
Tithe
Saffron, DC.
Minute
Tithes.
4
Chap. XLIX. The Complete Incumbent.
553
Tithes
Tithe of the Tenth Swarm of Bees, in Conſideration that he paid the pzediai
Tithe of the Hony and Wax, and fed them in Winter, and found
them Hives, and (for that they were Fera Natura) took great Care,
and ſpent much Labour to preſerve them when they ſwarmed, a Pro-
bibition was granted upon theſe Surmiſes. Paſch. ii Car. B. R. Ano-
12ymus, 1 Croke 404. But ſome of the Judges held, that the Modus
is not good, for that Conſideration is no more than the Duty that the
Law requires. But they agreed, that no Tithes were due of the
Tenth Swarm, for that Bees be Fera Natura, Pafch. i Car. B. R.
Landford's Cafe, 1 Roll's Abr. 651.
And for the better Afcertaining the Tithes of Henip and Flax, it Hemp and
hath been enacted, That all Perfons that ſhall row, or cauſe to be Hlax; 2 & 4
W. & M... 3:
lown, any hemp 02 Flar, in any Parith 02 Place in the Kingdom
of England, Dominion of Wales, and Town of Berwick lipon Tweed,
fhall pay oj cauſe to be paid to every Parſon, Uicar 02 3mpropriator
of any ſuch Pariſh or Place, yearly and every year foz each acre of
pemp and Flar lo Down, Pulled o’ Diawn, a conffant annual Sum
of money not erceeding four Shillings, before the ſame be carried
off the Ground, and ſo propoztionably foj moze od leſs Ground ſo
Sown, and Pulled od Drawn as aforeſaid; fou the Recovery of which
Sum ol Sums of goney, the Parloni, Uicar ou Impropriator ſhall
have the common and uſual Remedy allowed of by the Laws of
England.
continued.
Provided that this AX, 02 any Thing therein contained, ſhall not Proviſo for a
ertend to charge any Lands diſcharged by any Modus Decimandi, an- Modus.
cient Compoſition, or otherwiſe diſcharged of Tythes by Law.
Provided that this Law fall continue for ſeven Pears, and to the
End of the nert Sellion of Parliament after the ſaid ſeven years
are erpired. Stat. 3 & 4 W. & M. c. 3.
Whereas an dã made in the Third Year of the Reign of his pa. This A&
jeſty and late Mueen, Intituled, An Act for the better aſcertaining the
Tyches of Hemp and Flax, was
made to continue but fož ſeven years,
and to the End of the nert Seſſion of Parliament after ſuch Term
ended, and is now expired: And whereas the ſaid ax hath by Erpe-
rience been found very uſeful and neceſſary, Be it therefore Enałed
by the King's moft Ercellent Bajetty, by and with the advice and
Conſent of the Lods Spiritual and Tempozal, and Commons in
this p2eſent Parliament afembled, and by the authority of the ſame,
That from and after the five and twentieth Day of March, which
fhall be in the Year of our Lold Dne thouſand ſeven hundjed, all
and every perſon or Perſons, who ſhall Sow od cauſe to be Sown,
any hemp or Flat in any Pariſh or Place in the Kingdom of
England, Dominion of Wales, and Town of Berwick upon Tweed, fall
pay od cauſe to be paid to every Parſon, Wicar and Impropriato, of
any ſuch Parili od Place, yearly and every year, the Sum of five
Shillings, and no mode, for each #cre of hemp op Flar ſo lown,
before the ſame be carried off the Ground, and ſo proportionably foz
może od leſs Ground ſo fówn: For the Recovery of which Sum oz
Sums of money, the Parſon, Uicar 02 Impropriato, fhall have the
common and uſual Remedy allowed of by the Laws of the Land.
Provided, T}at this ad, or any Ching therein contained, ſhall Medus.
not ertend to charge any Lands diſcarged by any Modus Decimandi,
ancient Compoſition, oz otherwiſe diſcharged of Cythes by Law.
Nnnn
Provided
554 The Clergy-Man's Law: Or,
Chap. L.
gf in the Bight
102edial Pouided alpraps, That nothing becein contained fhall extend, 02
eithes.
he toertend, to make any Alteration :02 Dan
Proviſó for ner of Payment of Cythes of flar and Hemp to any Ecclefiaftical
Merling down. Perſon, Incumbent of any Patronage, Uicarage 02 Curacy, o to
any simpzopziato, o Body Corporate, habuig or holding any im
propriation, for ſuch Gaund as hath at any Time ſince the Second
Day of February, Dne thouſand üç hundled eighty four, and before
the Second Day of February, Due that cand fix bundled ninety one,
been cown with flat ou Hemp, and paid Cythe in kind to Puch 30
cumbent, Impzopziatož
od Body Corpolate reſpexively, but that the
ſame Hall continue and be payable and paid, as fully aud in luch
Danner as formerly ; any Thing in this på to the contrary notwith
landing.
Provided, That this Law bal} continue i Force for Leveu Pears,
to be accounted from the ſaid fibe and twentieth Dap of March, and
from thence to the End of the nert Selljons of Parliament, and no
longer. Stat. 11. & 12 W. 3. C. 16.
This Act
continued.
( H A P. L.
Mixt Tithes, as of Cattle, Fowls Agiſtment,
&c. when, and in what manner Payable
,
and what Modus, &c. good to diſcharge
Such Tithes.
HAY
Young.
Mixt Tithes AVING ſpoken of Predial Tithes of all Sorts, mixt Tithes are
as Horſes,
next to be conſider'd, which are, the Tithes of the ſeveral Crea-
Oxen, force
and their
tures nouriſhed by the Fruits of the Earth. And firſt, of ſuch with
which the Farmer is wont to Stock or Paſture his Lands, as Horſes,
Oxen, Cows, Sheep, Goats, to which may be added, Hogs, &c. and
the Young of each, which may yield their Tithes in kind: 'Therefore
if a Man hath ten Colts, Calves, Lambs, Kids or Pigs, in one Year,
one of them ſhall be to the Parſon or Vicar, &c. But if he hath a
leſs Number of any Sort, the Parſon can have no Tithes in kind of
them that Year, without a ſpecial Cuſtom for it, but muſt have his
Tithe pro Rata, either in Money the ſame Year as the Cuſtom doth
direct, or in Kind the next Year, reckoning both Years together; but
by Cuſtom, the Parſon may have one of the Young, if there be but
Seven, and if there be a leſs Number in one Year, to pay an Half-
penny for each of them; this is a good Cuſtom, bụt when the Cuſton
is alſo, that he ſhall hall have one of Seven, as of Calves, Pigs, Gc.
there he ſhall not account the Young in two Years, and ſo the ſecond
Year have one in kind; but have an Half-penny for each of them in
both Years, Anonymus Latch 254. If a Man hath but one or more
If Calves, Calves, Colts, or Lainbs, C. and doth ſell them, by the Cuſtom in
cbe told. many Pariſhes, he ſhall pay to the Parfon the Tenth Penny
, of the
Price, but Cuſtom in theſe Cafes is generally to direct, and to be ob-
ſerved,
1
3
Chap. L.
55.
The Complete Incumbent.
Common
ferved. It is ſaid to be a good Modus for the Tithe of Calves to pay Birt
onc Calf for the 'Tithe, if the Owner hath Seven in one Year, and if Titles: .
he hath under Seven, to pay one Half-penny for each of them, and
that if he fell any Calf, ſhall pay the Tenth of the Price for which
he fold it. Mich. 14 Fac: B. Ri Lee and Collins's Cafe. i Roll's Abr.
640.
But if a Man preſcribe to pay one Half-penny for every Lamb that Fraudulens
he ſhall fell before the firſt Day of May, without other Tithe of
ſelling
them, and he by Fraud, to deceive the Parfon, ſells his Lambs but one
Day before May, this is no Diſcharge by the Cuſtom of the Tithes:
Mich. 17 7ac. per Cur. i Roll's Abr. 652. And as the Parfon is to
have the 'Pithes of the Young and Encreaſe of theſe Cattle; ſo he on
his Part is to obſerve the Cuſtom of the place for the better propaga-
ting that Increaſe, elle any Pariſhioner grieved may have his Action
of the Cafe againſt him, for fo an Action of the Cafe was brought a- If the Parlak
gainſt a Parfon, declaring, that within the Pariſh there is Cuſtom, that keep not a
the Parfon at all Times of the Year had uſed to kecp a common Bull,
Bull, Egose
and a Boar, for the commơn Uſe of the Kine and Sows of the Pa-
riſhioners, for the Increaſe of Calves and Pigs within the Pariſh, and
that the Defendant being Parſon there, had neglected to keep them,
by reaſon whereof, the Plaintiff being an Inhabitant; had loſt the In-
creafe, &c. The Court were of Opinion that this was a reaſonable
Cuſtom, and that every Inhabitant prejudiced by
not keeping the Bull
and Boar, might maintain his Action. Trin. 39 Eliz. Yielding v. Fay's
3 Croke 569, and More 355.
Of common Right young Cattle are titheable when they are wean- When tittien
able, that is, can live without the Dam on ſuch Food with which the able,
Dam is nouriſhed; and the Tithe of theſe is to be apportioned with
Reſpect to the Places where they are ingendered, brought forth and
nouriſhed.
Cattle that yield other Profit to the Owner than their Young, the Tithe of
Tithe thereof is alſo to be paid to the Parſon; as of the Milk of Cows, Milk.
Mich. 9 Car. Baxter v. Hopes, Brownlow and Gouldsborough 2: pt. 30,
and fo I ſuppoſe of Goats and Sheep, when their Milk is preſerved by
the Owner; but by Cuſtom a certain Number of Checſes may be paid
in Diſcharge of the Tithe of Milk. Irin. 21 fac. B. R. Wiſeman and
Dennyſe's Cafe, Godbolt. Or by Cuſtom to pay the Tenth Cheeſe
made from the firſt of May, to the firſt of Auguſt, in Recompence of
all Tithe-Milk for the whole Year, is a good Diſcharge, for that comes
by Labour, and is not due of it felf. So to pay the Tenth Quart of Milk at .
the Parſonage-Houſe, or other certain Place, is good enough. Paſch. 40
Eliz. B. R. Auſtinv. Lucas, 3 Croke.609, famc Cafe, Mo.909. And when
one ſurmiſed, that the Cuſtom of the Country where he lived was, not to
pay any Tithes of the Milk of Ewes, Prohibition was granted per
Sewell and Bicknar's Cafe, i Roll's Abr. 654. And note, that when If Tithe-
the Tithe of Milk is paid, no Tithe of Cheeſe is due; ſo when Tithe- Milk, no
Cheeſe is paid, no Tithe-Milk is to be required ; And that when Cows Cheese, Esc.
yielding Milk are ſold, or otherwiſe removed into another Pariſh, the
Tithe of Milk for the Time is to be paid to the Parſon of the Pariſh
where they are depaſtured.
In a Suit for ſmall Tithes by Engliſh Bill, and amongſt the reſt for If Tithe-
Tithe-Milk, upon the hearing of the Cauſe, a Queſtion aroſe, whe- Meal,
, Quico
ther the Defendant ſhall pay every Tenth Part of the Milk every
Meal, or only pay every Tenth Meal ? 'It was decreed, that he ſhould
Nnnn 2
pay
per Cur:
556
Chap. L
The Clergy-Man's Law: Or ,
Mirt
Cither.
delivered.
Tithe of
Wool.
pay every 'Tenth Mcal entire. The next Queſtion was, Whether de
Jure the Pariſhioners ought to ſend the Tithe-Milk to the Parſonage-
Houſc, or that the Parfon ought to fetch it from the Pariſhioners ? It
was agreed by the whole Court, that the Tithe-Milk ought to be car-
ried by the Pariſhioners; and by the Chief Baron, and two other B:1-
Where to be rons, to be delivered in the Church-Porch, becauſe the neighbouring
Pariſhes did fo. But by Raymond, it ſhould be delivered at the Par-
ſonage-Houſe, becauſe where there is no Cuftom, the Common Law
prevails
. Dod v. Engleton, Pafch. 13 Car. 2. in Scaccar. Raymond
277. But Qulare of this Caſe, how the Tithe of Milk becomes diffc.
rent from other Tithes, which generally are to be ſet out and ren-
dered in the Place where they ariſe, and the Pariſhioner not compel-
lable to carry and deliver them at the Parſonage-Houſe, Church-
Porch, or any other Place.
Not only the Tithe of the Lambs, but alſo of the Wool of Sheep, is
Lambs, and to be paid to the Parfon or Vicar, or other Proprietor of the Tithes,
viz. proportionably for the Time that they are in the Pariſh. 2 Ke-
ble 293, as thus; the Parfon ſhall have eight Pounds of Wool in Eighty,
of Forty Sheep in the Pariſh a whole Year; four Pounds of Wool, if
they were there but half the Year ; two Pounds of Wool, if they
were but three Months; and but the Tithe or Tenth of the
Twelfth Part of the Wool, if they lay and feed but one Month in
the Pariſh. And this is due de Jure at the Time when it is clipped;
but by Preſcription it may be fet out altogether at another Time,
and if the Spiritual Court will not allow of ſuch Preſcription, they
are to be prohibited. Mich. 41 Eliz. B. R. Green v. Hun, 3 Croke
702, vouched. Paſch. 41 Eliz. in Awberrie's Caſc, Moor 910. And
Fories ſaid, that if the Pariſhioner fell his Sheep, the Parſon ſhall have
Állowance for the Tithes of them after their Sheering, Anonymus,
Latch, p. 254. Yet the Owner of the Sheep had depaſtured them in
the Pariſh from Michaelmas to our Lady-day, and then fold them,
and a Suit was in the Spiritual Court for a Tenth Part of the Bar-
gain, and the Owner to have a Prohibition furmiſed, that he would
pay the Tenth of the Wool of them according to the Cuſtom of the
Pariſh ; a Prohibition was denied; for as Dodderidge Juftice ſaid, by
this Way the Parſon ſhall be defrauded of all, if he ſhall not now
have his Recompence, for that it was not the Time of Shearing when
they were ſold, and the Sheep arc gone into another Pariſh; and Whit-
lock faid, that de Animalibus inutilibus, the Parfon ſhall have the
De.Animalibus Tenth Part of the Bargain for depaſturing them, as Horfes, Oxen,
inutilibus, &c.
Úc. But de Anamalibus utilibus, he fhall have the Tithe in Spceic,
as Cows, Sheep, &c. Mich. 2 Car. B. R. Popham 197. So if a Man
pay Tithe of Lamb at Markſtide, and at Midſummer following doth
Theer the Reſiduc of his Lambs, viz. the nine Parts, he ought to pay
Tithes alſo of their Wool, although that there is not above two
Months betwixt the 'Time of the Payment of the Tithes of the Lamb,
which were tithed with their Fleeces, and the Sheering of the Reſi-
due, for this is a new Increaſe, and a Prohibition was denied accor-
dinglyPaſch. 16 Jac. B. R. Nicholls and Hooper's Cafe, Roll's i
Aur. 642.
And not only is the Tithe of the Wool upon the Bodies of the Sheep
Neck-Wool, or Lambs due and payable, but alſo of the Head and Neck, though
this be cut off before Shcering-tine, if what is cut be converted to
the Owner's Uſe, or Profit, for that thc Neck-wool is often fraudu-
len tły taken off to the Spoiling of the Fleece; and when it was urged,
:
Tithe of
4
that
Chap. L.
557
The Complete Incumbent.
gcs;
Locks of
Wool,
that if ſuch Abuſe was in the Cutting of the Neck-Fleeces, this ought Birt
to come on the other Side to fhew it to be fo, as in the Cafe of Titles.
Rakings; the Court was againſt this, and at that Time refuſed to
grant a Prohibition. But at another Day the Suggeſtion appearing to
be, that they uſed to wind up the other Flecces at their own Char-
for this Cauſe a Prohibition was granted. Mich. 14 Jac. B. R.
Folle v. Parker, &c. 3 Bulftrode 242. 1 Roll's 1 Abr. 645, and
646. Lit-
tleton Rep. 31. But when one preſcribed, that he paid the Tenth
Flecce of Wool in Satisfaction of all Locks and Tithes due for Wool, it
was moved, that the Preſcription was not good, becauſe it is but to
have the fame Thing of the ſame Nature in Recompence ; the Court
held, that the Subſtance of the Preſcription was good, and that the
Locks being but of ſmall Value, were free. Mich. 36 & 37 Eliz. B.
R. Feſop v. Pazn, 3 Croke 363. But a Preſcription to be diſcharged
of the Locks of Wool, ought to be ſhewed of Locks caſually loft.
Mich. 37 & 38 Eliz. Moor 911. And if a Pariſhioner doth cut off Dirty Locks
the dirty Locks from his Sheep before the Time of Shearing, the bet- cut off.
ter to preſerve them from Vermin, and this be done without Fraud,
no Tithes fhall be paid thereof, per Curiau. Paſch. 14 Car. B. R.
Dent and Salvin's Cafe, Rolls i Abr. 646, eſpecially if that the Pa-
riſhioner can preſcribe for it, in Conſideration that he is to wind up
the Parſon's Tithe-Fleeces, 6c. Mich. 14 Car. B. R. Williams and
TVilock's Cafe, Roll's Abr. 646.
If Sheep be ſhorn and die of the Rot, or other Diſeaſe before the Sheep dying
Eaſter following, the Wool is not titheable, unleſs the Parſon can ing, Esc.
preſcribe to have it, F. N. B. Conſultation 51. Yet by Dodderidge
and Jones, the Tithe of ſuch Wool ought to be paid to the Parſon,
Anonymus, Latch p. 254. However, if a Man doth kill his Sheep,
he ſhall pay Tithe for their Wool, but not for their Skins. Paſch. 14.
Çar. C. B. Dent and Salvin's Cafe, per Curiam, Roll's 1 Abr. 646, but
for the Bodies fed on his Land in the Pariſh, and eaten in his Houſe, no
Tithe ſhall be paid. Mich. 7 Car. Facy and Long's Cafe, per Curia12, Roll's
1 Abr. 647. fame Cafe, i Croke 237. And Williams ſaid, that if á Man
keep Sheep in one Pariſh until Shearing-time, and then fell them into
another Pariſh, in this Caſe the Vendee Thall pay the Tithe-wool to the
Pariſh where they were depaſtured in the greater Part of the Time of
the growing of the Wool. But if there be a Preſcription, that the
Owner of the Sheep ſhall pay one Half-penny for thc Wool of Sheep
fold after Shearing, and before Michaelmas, this is good, and the
Vendee ſhall be diſcharged. Mich. 37 & 38 Eliz. Moor 911.
The Owner having paid Tithes of the Wool of Sheep, he ſhall not Herbage.
pay any Tithe for their Herbage, for then he ſhould pay Tithes twice
of one Increaſe, Trin. 12 Jac. B. R. Maſcab and Price's Cafe, Roll's
1 Abr. 642, and Roll's i Rep. 62, and therefore, if he doth buy Wea-
thers and after doth fell them, for that theſe ſhall pay Tithe of their
Wool, no Tithes ſhall be paid of their Paſture. Mich. 7 Car. G. B.
Facy and Long's Cafe, per Curiam, Roll's 1 Abr. 647.
If a Preſcription be, that if the Owner hath under the Number of
ten Fleeces of Wool; that he ſhall pay a Penny to the Parſon for tho
Tithe of each of them, and that if he hath more, then he ſhall deli- To deliver a
ver to the Parfon the Tenth Part of the Wool, upon bis Conſcience, Tech Part,
fine vifis
without Fraud and Covin, fine viju vel tactue of the Parſon of the
taču, &c.
Ninth Parts, this is not a good Modus, for that it is unreaſonable, and
as if it was to give the Parfon what the Pariſhioner pleaſed. Mich. 12
Jac. B. R.Jillon and the Biſhop of Carliſle's Caſe, per Guriam, Roll's
So
i Abr. 648.
558
The Clergy-Man's Law: Or, Chap. L.
an irt
Tithes.
my Tenth
Pound of
Wool.
Lady-
before Sheer-
ing, P.
So if a Preſcription be, to pay every Tenth Pound of Wool for
the 'Tithes of the Wool, and it be not ihewed what he is to pay, if the
To pay eve- Wool doth not amount to ten Pounds, this is not good, for that it is
a Preſcription in Nou Decimando, if it be under ten Pounds, and the
Tenth is due of common Right. Mich. 7 Jac. Delman and Barton's
Cafe, per Curiam. Roll's 1 Abr. 648. Neither is it a good Preſcrip-
tion, that one hath paid the Tenth of the Wool of all Sheep that he
had before Lady-Day, and ſheered or ſold, or put into another Pariſh,
or the Value of the Tenth thercof at that Time, and this in full Sa
tisfaction, as well of all Wool of ſuch Sheep, as of all other Sheep
brought into the Pariſh after our Lady-Day; for it is not reaſonable,
that the Tithes that one Man pays ſhall be a Diſcharge for all the
other Pariſhioners; but this was intended to be a Diſcharge of all the
Sheep of the Party himſelf brought into the Pariſh after our
Day, though not fo expreſſed, and then the Preſcription had been
good. Mich. 9 Car. B. R. Market and Knight's Cafe, and ſo adjudg-
cd in another Caſe the ſame Term, upon a Trial at Bar. Roll's i Abr.
649.
So if the Pariſhioner can preſcribe, that in Conſideration that he
had, Time whereof, &c. paid Tithe-Wool of all Sheep that he iheared,
viz. as well of thoſe that he bought but two Days before the Shearing,
as of others that he had kept all the Year, he had uſed to be dif
charged of the Tithe-Wool of all Sheep that he fold two Days before
Of Sheep Shearing ; this is a good Preſcription, becauſe by the Spiritual Law
ſold 2 Days the whole Tithe-Wool of the Sheep nouriſhed in another Pariſh, and
ſo lately bought before that Shearing, is not due to ſuch Parſon. Mich.
14 Jac. B. R. adjudged. Roll's i Abr. 648. But a Cuſtom to pay
Tithes in kind for Sheep, if they continue in the Pariſh all the Year,
and if they be fold before ſhearing Time, but an Half penny for cve-
ry one fo fold, was held to be an unreaſonable Cuſtom, for by ſuch
Means, the Parfon may be defeated of his Tithes. Weeden v. Harden,
Parch. 17 Car. March Caſe. 1 28.
Not only the Tithes of ſuch Cattle which yield a Tithe in kind
departured
are to be paid, but alſo for ſuch as are Barren Stock, as for Horſes,
Oxen, &c. depaſtured, to be fold in the Pariſh where they be depaftu-
red. Trin. 4 Car. C. B. Norton's Cafe. Hetley 100. Trin. 4 Car. C. B.
Anonymus. Hetley 100. Sherrington and Fleetwood's Caſe. 3 Cro. 475.
Therefore, after a Man hath paid the Tenth Colt, Calf, and Lamb,
if he doth rear any of the reſt, and ſell them before they yield Pro-
fit to the Parfon, or be uſed for the Plow, he ſhall pay a Tithe of them.
Trin. 38 Eliz. Sherrington and Fleetwood. Moor_909, fame Cafe.
3 Croke 475. Paſch. 4 Car. Wolmerſton's Cafe. Hetley 85. So if after
Milch Cows grow old, they be kept dry, and depaſtured as other dry
Cattle, though but for one Month, a Tithe ſhall be paid for theni';
and ſo it is, if they be fatted and fold. Trin. 4 Car. C. B. Anonymus.
Hetley 100. And if a Man doth buy Cattle and feeds and ſells them,
he ſhall pay a Tithe for them, for that they cannot render any other
Tithe ; but otherwiſe it is of Sheep, for that the Tithe is to paid of
the Wool. So if a Man doth buy, or breed Beaſts, and doth feed,
and ſpend them in his Houſe, he ſhall not pay any Tithe for them.
Mich. 7 Car. Harvy and Long's Cafe, and Trin. 38 El. B. R. Sher-
rington and Fleetwood's Cafe, per Curiam. Roll's 1 Abr. 647, fame
Cafe, Moor 909, and Gouldsborough 174. Mich. 38 39 Eliz. Gre-
Jham v. Lucas, Moor 911, fame Caſe. 3 Croke 446. So if he having
4
BarrenStock
and fold.
paid
:
--
Chap. L.
559
The Complete Incumbent.
Egoce
and Mich. 14 Jac. B. R. Joyce and Parker's Cafe, and Mich. 14 7ac.
paid Tithes of his Colts, or Calves, doth rear any of the reſt, or buy Birt
.
Tithes.
others, for to till Land in the ſame Pariſh, or doth rear Cow-Calves
for to bear Calves; and for the Dary, no Tithes ſhall be paid for the Beafts reard
Paſture that they eat in the mean Time. Pafch. 4:Car. C. B. Wolmer- to till Land,
fton's Caſe. Hetley 85. Mich. 14 Jac. B. R. Watley and Hanberry's Cafe,
B. R. Dr. Beſt and William's Cafe. Hill
. 14 Fac. B. R. Kizeebin and
Woodrett's Cafe. Trin. 12 Jac. B. R. Maſcal and Price's Cafe. Roll's
I Abr. 846. Trin. 12 Fac. B. R. Price v. Mafcal. 2 Bulft. 238, fame
Cafe. Rolls i Rep. 38. Trin. 30 Eliz. Sherrington v. Fleetwood.
Aloor 909. Mich. 41 Eliz. B. R. Green v. Hun. 3 Croke 702. Mich.
9 Fac. Baxter v. Hope. Broevnlow and Gouldsborough 2 Part 30.
Nor ſhall Tithes be paid for the Paſture of Oxen uſed to till the Oxen to till
Land in the fame Pariſh, or for the Beaſts of the Pail, at ſuch Time theLand, &c.
when they are put to that Uſe. Mich. 9 Jac. Baxter and Hope's Cafe,
per
Curiam. Roll's i Abr. 646. Nor ſhall he pay for the Paſture of
Horſes, when put to the ſame Ufè. Trin. 15 7ac. B. R. Bell and
Tard's Cafe. Roll's i Abr. 646. Or if a Parfon doth kecp an Horſe
within a Pariſh only for his Saddle, no Tithes ſhall be paid for his Saddle-
Graſs. Trin. 9 Jać. B. R. Pothall v. May. i Bulft. 171. Paſch. Horfe.
4
Car. C. B. Thornhills Cafe. Hetley 94. i Ventris 236. And if
Oxen have been uſed to the Plough, and afterwards fatted in order
for Sale, Tithes ſhall be paid for the Agiſtment of ſuch Oxen; du-
ring the Time they were grazed and fatted in order to be ſold,
notwithſtanding they had been formerly uſed to the Plough; for
the Reaſon of their Diſcharge now ceaſeth, they being become
no way beneficial to the Parſon in any other Tithes. Sandis v.
Eaſtmond and Nayle in Scacc. For thic Advantage the Parfon is
fuppoſed to have by the Labour, dc. of ſuch Cattle, whereby his
Tithes are to be increaſed, is the Reafon of the Diſcharge of the Tithes
of ſuch Cattle; therefore, I conceive, that if one breed up Cattle for
the Plow, &c. but hath not any arable Land within the fame Pariſh
whereupon to cmploy thofe Cattle, but doth imploy them in another
Pariſh, thefe Cattle ſhall pay Tithes to the Parfon of the Parifh
wherein they are depaſtured. See Holbeech v. Whadcoke. Paſch. 13
Car. 2. in Scaccar. Hardres's Rep. 184.
So it hath been held, that if an Horſe be kept to carry Coals, Horſe to car-
Tithes ſhall be paid for his Paſture : And if when the Caſe is ſo, the ry Coals, esco
Owner doth furniſe, that he is kept for the Uſe of Husbandry, the
other may alledge that he is kept to carry Coals, and the Allegation
is traverſable ; ſo if the Owner alledge that dry Cattle are kept for
the Plow, the other may alledge that they are kept for Sale, without
that, that he keeps them for the Plough. 'Paſch. 4 Car. B. R: Thorn-
kill's Cafe. Hetley 93, 94.
When upon a Suit for 'Tithes of dry Cattle, to have a Prohibition If Tithes
the Surmiſe was, that one uſed to pay the 'Tenth Sheaf of Corn, the paid in kind
Tenth Cock of Hay, the Tenth Fleece of Wool, the Seventh Calf, risfa&tion for
and the Parſon to pay three Half-pence, and the Eighth Calf if he had Tithes of o-
ther Things.
Eight, and the Parfon to pay one Penny, and ſo to Ten, and if he
had under the Number of Seven, to pay only a Half-penny for every
one, and after theſe Rates for Lambs and Colts, and that it was in
Satisfaction for the Tithes of dry Cattle; and for all other Tithes of
Corn, Hay and Cattle. The Opinion of the whole Court was, that
this. Surmiſe is not ſuſficent, for that which he uſed to pay is but the
Tithes
1
560
Chap. L.
The Clergy-Man's Law: Or,
airt
Lither.
Checſes in
Diſcharge of
Milk, CPC
Itured on
large Com-
mons, Sec
Tithes in kind, therefore cannot be in Satisfaction for the Tithes of
other Things than themſelves: But if it had been cnly for dry Cattle
for Plough and Pail, it had been good. Mich. 42 Eliz. B. R. Ingolsby
againſt Johnſon. 3 Croke 786, ſo when a Surmiſe was of an Uſage to
pay a Penny yearly for every Milch Cow, and an Half-penny for every
other Cow, and a Half-penny for every Mare, in Satisfaction for the
Tithes of all Cows, Horſes, Steers, and other Cattle, and adjudged
inſufficient for the fame Reaſon. Mich. 38 39 Eliz. Greſhanı v. Lu-
cas. Moor 911. The like Cafes were, Trin. 38 Eliz. Sherrington v.
Fleetwood. Moor 909. Mich. 3 Jac. B. R. 1 Roll's Abr. 651. Mich.
37 & 38 Eliz. Griſman v. Lewis. 3 Croke 446. Trin. 38 Eliz. Mon-
day v. Lovace. Moor 454. But if the Uſage hath been, that they
that have Milch Kine in the Pariſh have paid Nine Cheeſes yearly at
a Day in Diſcharge of 'Tithe-Milk and Fatting Çattle ; this may ſerve
for a good Surmiſe, becauſe the Cheeſes are made by Labour, and are
thereby become 'Things of another Nature than the Milk. Mich. iz
Jac. B. R. Maſcal and Price. i Roll's Rep. 62, fame Cafe. Bullt
.
2 Part 238.
Cattle depa-
For the aſcertaining the Payment of Tithes of Cattle fed or depa-
ftured upon large Waſtes and Commons, where the Limits and Bonds
of Pariſhes are not well known, and which Waſtes and Commons
may lie within ſeveral Pariſhes, the Stat. 2 & 3 E. 6. cap. 13, hath
provided as followeth : And be it further enated, Chat all and every
Parſon which hath or wall have any Beaſts, 02 other Cattle titheable,
going, feeding, oz depafturing in any Wlatte oz Common Ground where:
of the Parith is not certainly known, thall pay their Cythes for the
Increaſe of the ſaid Cattle, ſo going in the ſaid Tlađe o Commoni
,
to the parlon, Wicar, Proprietour, Portionary, Dwner, of other their
Fermois oDeputies of the Pariſh, hamlet, Town, o2 other place,
where ihe Dwner of the ſaid Cattle intabiteth od dwelleth. But not-
withſtanding this Statute, if by Preſcription Time out of Mind, &c.
the Tithes of Cattle depaſtured and kept upon any ſuch Waſte or
Common, where it is not known within what Pariſh the ſaid Waſte
or Common lies, hath been paid to the Parfon of any Pariſh, &c. ſuch
Cuſtom or Preſcription ſhall not be taken away by this Clauſe in this
Statute, but the Tithes ſhall be paid to ſuch Parſon, G.C. according
to ſuch' Preſcription. Sav. Caſe 131. fol. 60.
If Cattle for But the great Doubt is, Whether Cattle for the Plow, Pail and Sad-
Plow, Pail
dle, ſhall be accounted Tithe-free without the Surmiſe of ſome Cu-
and Saddle,
beaccounted ſtom? Richardſon ſaid, That a Surmiſe ought to be made, and that
he had ſearched the Books, and the Book of Entries, and found, that
ever fome Surmiſe is made. But Croke replied, That in the King's
ſomeCuſtom. Bench he had Twenty Times ſeen Prohibitions granted in ſuch Cafes
without any Surmiſe, that is, to Suits in the Spiritual Court for Tithe
for Horſes and young Cattle kept for Plow and Pail. Paſch. 4 Car. C. B.
Thornhill's Caſe. Hetley 94. And it is ſaid by the Lord Chief Baron
Hales, That of common Right Tithes are not due for Cattle bred for
the Plow and the Pail, to be uſed in the fame Pariſh ; but if they be-
long to another Pariſh, Tithes are due for them: And of that Opinion
was the whole Court. Paſch. 13 Car. 2. in Scaccar. Holbeech. v. Whad-
cock. Hardres 184. But whether the aforeſaid Cattle be free or not,
without a Preſcription upon Conſideration of ſome Benefit to the Par-
fon, yet if the Parſon can preſcribe to have Tithe for young Cattle
whilſt rearing for the Plow or Pail, as to have yearly One Penny, or
thc
Tithc-free
without a
Surmiſe of
3
Chap. L.
561
The Complete Incumbent.
Tithes.
when to be
Horſes of
ز
the like for each of them, this is good, but not without a Cuſtom for Birt
it ; by Hutton and Yelverton only preſent. Paſch. 4 Car. C. B. Wool-
U
merſton's Caſe. Hetley 85.
The 'Tithe of barren Stock titheable is to be yielded (where no Cu- Tithe of bar-
ſtons is) when they be fatted or fold; for 'tis not Reafon that the Par- ren Stock
ſon ſhould have Profit of them from the Owner before the Owner yielded.
hath received any. Paſch., 2 Car. C. B. Thornhill's Cafe. Hetley 93,
and if kept in divers Pariſhes after bought, or in Breeding, the Tenth
of the Gains if bought, or Value if reared, is to be to the Parſons
proportionably. Mich. 2 Car. Pophain 197.
'The Occupier of Land is not only to pay for his own Stock depa- Inn-keeper
ftured upon his Land, but alſo for the Stock of other Perſons thereon agiſting
maintained. Sherrington v. Fleetwood. 3 Croke 475. And therefore, if Travellers,
an Inn-Keeper doth agiſt the Horſes of Travellers or Strangers on his &c.
Lands, he ſhall pay Tithes for them, otherwiſe the Owner of the Land
ſhall make a Profit of his Land, and defeat the Parſon of all Tithe
thereof. Hill
. 1655, in Scaccar. Guilbert v. Everſly. Hardres 35. Yet
if a Parſon, having Lands in a Pariſh, doth rent out his Land, refer-
ving the Running of his Saddle Horſe therein, no Tithes ſhall be
paid for the Graſs he eats ; by Montague, Croke
and Dodderidge v.
Haughton, who held, that for all barren Beaſts Tithes ſhall be paid,
except for ſuch as be for Husbandry. Trin. 15 Jac. B. R. Laurki 12
and Wild's Cafe. i Roll's Abr. 641. But then it muſt be averred and
proved, that the Horſe is uſed for Labour, for if an Horfe be kept for
Sale Tithes ſhall be paid for him. Trin. 15 Jac. Hampton v. Wild. 2
Croke 430, ſame Caſe. i Roll's Abr. 647. Trin, 15 Fac. Laurkin and
Wild's Cafe. Popham 126. And it hath been lately held per Curiam,
that Tithes for Agiſtment of Cattle are payable by the owner of the
Cattle, for the Cattle take the Profits and Herbage of the Soil : So in
the Caſe of Commoners, and it cannot be ſaid that the Profits are
taken by the Owner of the Soil; and the Lord Chief Baron Hale
faid, the owner of the Soil might pay them, but clearly the Agiſter
is compellable to pay them. Paſch. 13 Car. 2. in Scaccar. Pory v.
Wright, & al. Hardres 184. See Guilbert v. Everlly. Hardres 35,
and Face and Gauge's Cafe there cited ; where it was held, that 'Tithes
for Agiſtment of Cattle ſhall be paid by the Occupier of the
Lands.
If it be asked, How the Tithes for Agiſtment are to be paid? The Tithes for
Anſwer is, That if there be any Cuſtom in the Place, that is to be Agiſtiment,
obſerved to direct it ; if not, the Tenth Part of the Money to be re- how to be
paid.
ceived for the Agiſtment is to be to the Parſon. Mich. 2 Car. B. R.
Popham 197. And by Hale Chief Baron, Tithes of barren Cattle of barren
are due de Communi Jure, according to the Value of the Land, after Cattle 2 s. per
the Rate of Two Shillings per Pound , for that they cannot be other- Pound, year-
wife valued or accounted for, becauſe the Profits of the Lands for the Land.
which they are paid, are perceived by the Mouths of Beaſts : But by
Cuſtom or Preſcription ſuch Tithes may be paid in other Manner, as
by the Acre, and for all Manner of Cattle barren, and for the Plow
and Pail. Paſch. 13 Car. 2. in Scaccar. Holbech v. Whadcock. Har-
dres 184. So in an Engliſh Bill in the Exchequer-Chamber againſt
an Inner-Keeper, who depaſtured Travellers Horſes, for which there
was no cuſtomary Payment, and the Value of the Land depaftured was
proved to be 30.1
. per Annun, the Court was in Doubt what Decree
to make for a certain Rate to the Parfon, it not being aſcertained by
оооо
Cuſtom;
562
The Clergy-Man's Law: Or, Chap. L.
Wirt
lithes.
Egoco
Cuſtom ; but conceived, that they ought to have Regard to the Va-
lue of the Land, and allow 2 s. in the Pound: But agreed clearly, that
Tithes are payable for ſuch Herbage eaten by the Mouths of Travel-
lers Horſes. Hill. 1655, in Scaocar. Guilbert v. Everſly. Hardres 35.
Not for A When it is ſaid, thať Tithes muſt be paid for Agiſtment, this is not
giftment of
After-grafs,
to be underſtood for Cattle agiſted in the After-grafs of a Meadow
that hath paid Tithe-Hay. 2. H. 4. Rotuto Parliamenti 93; 1 Roll's
Abr. 641, therefore where an Inn-Keeper hath paid the Tithe-Hay of
certain Lands, and for the Reſidue of the fame Year hath depaſtured
thereon the Horſes of Guefts, no Tithes ſhall be paid for the fame.
Trin. 16 Jac. B. R. Richardſon and Cable's Cafe, per Curi i Rolls
Abrº
. 641. And if an Inn-Keeper preſcribe, that in Conſideration that
he, and all others whoſe Eſtate he hath, c. have paid Tithes of Hay
and Grain growing upon the Land appertaining to his Inn, and have
paid Tithes of all their own Beaſts depaftured upon the fame Lands,
that they have been, Time whereof, &c. diſcharged of the Tithes of
thc Horſes of their Gueſts aģiſted in the ſaid Lands; this is fáid to be
a good Preſcription; for by fome 'tis held to be only a perſonal Tithe,
and by others, that no Tithes are due by the Common Law for ſuch
Agiſtńient without a Cuſtom, Gabel and Richardſon's Cafe. 1 Roll's
Abr. 650. But I take this Caſe not to be Law, as to ſuch of the
Lands, which yielded not to the Parfon either Tithe Corn or Hay, for
here is no more alledged to be paid, than ought to be paid of com-
mon Right; nor are the Reafons of the Caſe true, viz. that this is
but a perſonal Tithė, or that no Tithes are due in ſuch Cafe de Jure
without a Cuſtom. And when upon a Suit for Agiſtment the Defen-
dant in the Spiritual Court did plead, that he had always paid Twelve-
If Payment Pence by the Year for every Milch Cow going on ſuch a Paſture, and
that for this Payment he had been diſcharged of the Payment of
diſcharge for Tithes for all Agiftments in that Land; this Payment of Money for
other Beaſts. Milch Bcaſts fhall not diſcharge from the Payment of Tithes for other
Beaſts ; by Popham. Hill. 43 Eliz. Sherrington v. Fleetwood: Goulds-
borough 147. But if he had preſcribed that he had paid One Penny for
all Cows and Beaſts agifted, that peranventure had been good, per Guir.
fame Cafe. 3 Croke 475. I Roll's Abr: 651.
2 Ed. 6. And here note that it hath been enacted as followeth: Where heretofore
ſuch a Cuſtom bath vern in many Parts of Wales, that of ſuch Cat-
No Tithe of tle and other Goods, as hath been giver with the Martiage of any
Goods within Perſon, their Tithes have been exa&ed and levied by the Parſons
Wales, Esc. ano Curates in thoſe Parts; which Cuftom being diffonant from any
Part of this Realm, as it ſeemed when the faid Countėy of Wales
was thjough civil Diflention unculted; for want of other ſufficient
Profits that mitght otherwiſe grow to the. Cürates and Qinifters
tiere, to have been for that Time tolerable: So now the Country
being well maiiured and husbanded, and the Tithe is duly paid there
of Corn, Bay, Wool, and Cheeſe, and of other Increaſe of all
Wannet of Cattle, as it is commonly in all other parts of this
Realth, the ſame Cuftom ſeems to be grtevous and unreafonable,
eſpecially wljete the Benefices are elle Cufficient for the finding of
the fatd Piniſters and Curates : Chat it be therefoze enađed by the
Authority afojelaid, That from and after the firft Day of May nett
coming, no fuch Cithes of marriage boods be erađed or required
of any perſon within the laid Dominion of Wales, 02 Marches of the
3
fame;
for Milch
Bcaſts ſhall
cap. 13.
Chap. L.
The Complete Incumbent. 563
ſame ; any Ching in this da contained, 02 any other ax, Cuſtom, mirt
or Preſcription, had oż made to the contrary hereof notwithitanding. Eithes.
Stat. 2 & 3 Ed. 6. cap. 13.
There are other Beaſts, beſides the Domeſticks before fpoken of, fed No Tithes
upon Lands, and which may take of the Paſture thereof, and be a Pro- of Deer om
fit to the Owner, as Deer and Conies : As to Deer, no Tithes are to be cut a Cifton
paid of them, becauſe they are fere natura. Mich. 5 Car. C. B.
Flower v. Vaughan. Hetley 147. And as for Conies, theſe being alſo,
as is ſaid, fere natura, no Tithes de Fure are to be paid for them
without a Cuſtom for it. Trin. 8 Car. B. R. Worden and Bennet's Cafe;
and Paſch. 13 Car. B. R. Sir John Beven and Dr. Bradiſh, per Cu-
riam. Hill. iz Cor. B. R. Vincent v. Tutt. Mich. 14 Čar. B. Ri
Williams v. Wilcoś, and Mich. 15 Car: Damport and Onge's Cafe. i
Roll's Abr. 635. Pafch. 22 Jac. Haie's Cafe. Bendloe 144. Flower v.
Vaughan. Mich. 5. Car. Hetley 147, and Randal v. Head, Gaľ.
Paſch. 13 Car. 2, in Scaccar. Hardres 188. Mich. is Car. 2. Tower-
for v. Wiggel. i Keeble 602. But this ſeems to be
But this ſeems to be very hard on the
Parfon's Side, for that theſe Beaſts may take away the whole Profit of
great Parcels of Land, and yield an anſwerable Benefit to the Owner;
and ſometimes arable Lands are turned into Conygrces and Parks,
tvhich is not only grievouſly hurtful to the Parſons in whoſe Pariſhes
they be; but alſo to the Commonwealth, and therefore deſerve no
Favour.
As of many of the Beaſts of Profit, fo of Fowls, are Tithes to be Tithes of
paid ; and firſt of Domeſtick Fowls, as of Heris, Geeſe, Ducks : And Domeſtick
I ſhould have added 'Turkies, but that I find then lifted amongſt the
Fowls that are ſaid to be fera natur&; end therefore affirmed to the
Tithe-free. Mich. 37 38 Eliz. Hugton v. Prince. Moor 599. But
Quére. And of theſe Fowls either the Tenth Egg, or the Tenth of the
Young, is to be paid; and where the Tithe of Eggs is paid which comes
of any Fowl; no 'Tithe of the Young is to be paid; and where Tithe of
the Young is paid, no 'Tithe of the Eggs is due. Hilli 15 Fac. B. R. Re-
folved. i Roll's Abr. 642. And it is ſaid to be a good Modus for Eggs, to
pay 30 Eggs in Lent for all Tithes of Eggs. Mich. 14 Jac. B. R. Leë
and Collins's Cafe. I Roll's Abr. 648. So when a Prohibition was
prayed to a Suit for the Feathers of old Geeſe ſheered, and alſo of
the Young, ſuggeſting a Modus of a young Gooſe with the Feathers;
paid the Firſt Day of Auguſt yearly; in full of Tithes of Geeſe and
Feathers : And a Prohibition was granted, becauſe it is more than the
Pariſhioner was otherwiſe bound to do, to keep a Gooſe feathered
till the Firſt of Auguſt. Michi 28 Car. 2. Huit v. Hill: 3 Keeble
705.
But no Tithes are to be paid either of the Eggs or Young of Phea- Fowls fere
fants, whether they go at large; or be taken, clipped and kept in a natura, Phe4 -
ſants, Par-
Place incloſed, becauſe they be feræ naturæ; and ſtill remain ſo, tho'
,
under Reſtraint. Mich. Ii Car. C. B. Winbrooke v. Evans. i Roll's not tithe-
Abr. 636. And 'tis ſaid, that if Pheaſants or Partridges be made able.
tame, yet no Tithes ſhall be paid for them upon the Reaſon that
they are fere Nature. Mich. 37 D 38 Eliz. Hugton v. Prince.
Moor 599. Yet it hath been reſolved, that Tithes ſhall be paid de
Juure of young Pidgeonsi Michi 14 Jac. B. R: Whatley v. Hanbury's
and Hill. 15 7ac. Gaſtrell's Cafe. I Roll's Abr. 63$. But in Stout-
fil's Cafe. Paſch. 28 Car. 2. C. B. it is ſaid, that Tithes ſhall not be
paid for Pidgeons, unleſs it be by ſpecial Cuſtom, 2 Mod. Rep. 77;
by become
(and
سے ملک ,tridges
2.
564
Chap. LI.
The Clergy-Man's Law: Or,
Perſonal
Titles.
and they ſeem to be fera natura, though it is made Felony to take
them out of a Dove-cotc,) cſpecially if the Pidgeons be ſpent in the
Owner's Houfe no Tithe ſhall be paid, for that they are for the Main-
tenance of them who labour in other Things whereof the Parfon hath
Tithes of them. Mich. s Car. C. B. Flower v. Vaughan. Hetley 147.
Mich. 14 Car. B. R. Whatley v. Hanbury. 1 Roll's Abr. 644. Trin.
3 Car. C. B. Hetley. p. 27. So if a Man doth maintain a Family,
and hath Pidgeon-holes about this Houſe, where are bred young Pidgeons,
no Tithes ſhall be paid of thoſe that are ſpent in his Houſe, &c.
Hill. Car. B. R. Vincent v. Tutt. í Roll's Abr. 644, yet by Cuſtom
Tithes ſhall be paid of Pidgeons ſpent in an Houſe, tho' not of com-
mon Right. Mich. 14 Fac. B. R. Whatley and Hanbury's Cafe. i Roll's
Abr. 644
CHAP. LI.
Perſonal Tithes, what; by whom, and in
what Manner payable.
SOPC.
cap. 13.
Perional
Aving ſpoken of fuch Tithes as are accounted Predial and Mix’d,
Tithes ari-
Perſonal Tithes are next to be conſidered. Of which (as hath
ſing by Man's
Labour and been ſaid) are the Tenth Part of the clear Profits which ariſe by the
Art, as Buy- honeſt Labour and Induſtry of Man, imploying himſelf in fome Per-
ing, Selling, fonal Work, Artifice, or Negotiation, as by Buying, Selling, Merchan-
dizing, Fiſhing, Fowling, Hunting, following any Trade, as of Car-
penter, Smith, Mafon, Butcher, &c. 2 Inft. 621, 657, 649. Mich. 14
Jac. B. R. by Dodderidge: i Roli's Abr. 656. And for the Payment
2 & 3 Ed. 6. of theſe Tithes ic hath been enacted, That every perſon ererciling Ber:
chandizes, Bargaining and Selling, Clothing, Handicraft, oz other
art 02 Faculty, being ſuch kind of perſons, and in ſuch Places as
heretofoże, within theſe forty Pears, have been accuftomably uſed
to pay ſuch perſonal Tythes, ol of Right ought to pay (other than
ſuch as been commonly Day-Lađourers) mall pearly at oy before the
fFeaſt of Eaſter, pay for his perſonal Cythes the Tenth Part of his
clear Sains, his Charges and Erpences, according to his Efate,
Condition, 02
Degree, to be therein avated, allowed and deduđed.
Provided, Chat in all ſuch places where Handicrafts-Men have
tiſed to pay their Cythes within theſe forty years, the ſame Cuſtom
of Payment of Tythes to be obſerved, and to continue ; any Thing
in this ad to the contrary notwithtanding. Stat. 2 & 3 Ed. 6. cap. 13.
By which Statute it appears, that only ſuch Perfons are to pay Per-
Not by Day-
Labourers,
fonal Tithes which have accuſtomably paid them, and that they ſhall
or Servants notwithſtanding pay other Tithes, and that from common Day-La-
of the Plow. bourers no Perſonal Tithe is due; and ſo it hath been adjudged, that
Servants of the Plow ſhall not pay any Tithe of their Wages,
and a
Prohibition granted accordingly, although that the Libel was only for
a Third Part of their Wages, leaving the Reſidue free ; for it was
faid, that by the fame Reaſon that the Beaſts of the Plough ſhall be
free from Tithes, the Servants that attend the Plow ſhall be alſo free.
Pafch. 14 Jac. B. R. Ellis and Drake's Cafe. I Roll's Abr. 646. So
1
a Par-
Chap. LI.
565
The Complete Incumbent
Tithes.
a Parſon libelled in the Spiritual Court againſt an Inn-keeper to have Perſonal
the Tithes of the Profits by him made of his Kitchin, Stable and Cel-
lar, and laid particularly that he made great Gain in ſelling of his
Beer, having bought it for 500l. and fold the ſame for 1000 l. and that
negoti ando traficando he had gained 300 l. of which he ought to
have Tithe : But upon Motion, a Prohibition was granted. Mich. II
Jac. Dolley v. Davis. 2 Bulftrode 141.
'The Tithe that may be had for Fiſh taken in the Sea, is held to be For Sea-Fift
a Perſonal Tithe ; therefore if the Owners of a Ship do lend it to Ma- oủt of the
clear gaini
riners to go to an Iſland for Fiſh, for a certain Quantity of Fiſh to be
paid to him upon their Return, no Tithes ſhall be paid by the Mari-
riners unto the Parfon out of the Fiſh that the Owner ſhall have for
the Hire of his Ship, for that it is a Perſonal Tithe, therefore ought
to be paid but of the clear Gain. Mich. 14 Jac. B. R. by Dodderidge
in Goſling and Harding's Cafe. 1 Roll's Abr. 656, and Hill. 14 Car. B.R:
Juſtice Fones ſaid upon an Appeal out of Ireland to the Delegates in the
Lord Deſmond's Caſe, it was agreed, that for ſuch Fiſh fo taken, only
Perſonal Tithes are due. i Roll's Abr. 636. See 2 Inft.621. And when
upon a Suit in the Spiritual Court for the Tithe of Fiſh taken in the
Sea a Prohibition was prayed. Firſt, Becauſe Fiſh in the Sea or great
Rivers are fere natură. Secondly, Becauſe the Sea is not within any
Pariſh, ſo that as no Parſon can fay, that the Part thereof where the
Fiſh are taken is within his Pariſh, the Prohibition was denied; for as
Jones affirmed, Tithes of Fiſh are uſually paid in Ireland : And it
was faid; that in Corriwall they pay Tithes for fiſhing in the Sea to the
Parfon of the Pariſh where they are landed ; and that it is a Cuſtom
in Yarmouth, that Tithes ſhall be paid for Herrings. Trin. 8 Car. B. R.
i Croke 264. But no Tithes ſhall be paid in Kind of Fiſh taken in
the High Sea out of any Pariſh, without a Cuſtom for it. Hill. 14.
Car. B. R. Long v. Dircel, per Curiam. i Roll's Abr. 636. Holland
v. Heale. Noy 108.
Alſo the Tithe of Fiſh taken in a common River is but a Perſonal
Fish taken in
Tithe, therefore not the whole Tenth is due de Jure without a Cu- River fere
ftom, but the Expences in taking them are to be deducted; and this naturk.
holds, although that they be taken by him who hath a ſeveral Piſcary;
and the place where they are taken bë within the Pariſh of the Par-
fon that claims them; the Reaſon given is; for that they are fere
Natura. 'Paſch. 15 Car: B. K. Gould and Arthur's Cafe, and Mich.
15 Car. B. R. Wijlake and Arthur; &c: i Roll's Abr. 636. Hill. 9 Car.
B. Ri Anonymns, i Croke 339.
And as to the Tithe of Fiſh, it hath been enacted, That this gå, op any ards the
Parishe's tö-
Thing therein contained, (viz with reſpect to Perſonal Tithes) ſhall not Sea coafts
:
ertend to any Pariſi
) which ſtands tipoit and towards the Sea-coafts,
the Commodities and Dccupying whereof conlfteth chiefly in Fifh.
ing, and have by Reaſon thereof uſed to ſatisfie thejë Čithes by
Filh ; but that all and every ſuch Parifi and Pariſhes ſhalt hereaf.
ter pay théit Tythes accouding to the laudable Cuſtoms, as they have
heretofore of antient Time within theſe Fojty Years uſed and accus
ftomed, and fall pay their Diferitigs as is afuyelaid. Stati 2 & 3, Ed: 6.
13. And accordingly, when one libelled in the Spiritual Court for the
Tithes of Pilchårds taken in the Sea, a Prohibition was granted upon
the Surmiſe of a Cuſtom there; that the Owner of the Fiſher-boat
hath one Moiety of the Fiſhes, and the Fiſhermen the other Moiety,
and that the Owner hath uſed to pay the Tenth of his Moiety for all;
and this Surmiſe was held to be good and ſufficienti Hill: i Jac:
& B.
a common
566
Chap. LI,
The Clergy-Man's Law: Or,
Derſonal C. B. Holland v. Heale. Noy 108. And ſo when a Surmiſe was, that
Tithes.
all the Filh of a Ship ſhould be divided into Ten Doles, after the
Owner's Part is ſeparated from them, for the Uſe of the Ship, and
then the Tenth Dole is to be divided, and one Moiety is to be to the
Parſon, and the other Moiety to the Town, viz. of Yarmouth, this
was admitted to be good. Mich. 14 Jac. B. R. Goſlin v. Harden, i
Roll's Rep. 419.
Fulling-
The Tithe alfo at leaſt of ſome Mills is ſaid to be perſonal, as of
Mills, Paper- Fulling-Mills, Paper-Mills, &c. 2. Inftit. 621. But Coke Chief Ju-
ſtice ſaid, that no Perſonal Tithe by the Statutez vizi Ed. 6, is to
be paid for Mills, but where by ſpecial Uſage the ſame hath been
paid ; to which the Court agreed. Trin. 14 Jac. B. R. Jakes v.
I. S. 3 Bulſtrode 212, and fame Cafe, 1 Roll's Rep. 405. And when
a Prohibition was prayed to ſtop a Suit in the Eccleſiaſtical Court
for Tithes of a Fulling-Mill, wherein it was ſuggeſted in the Spiri-
ritual Court, that the Defendant did full with his Mill weekly Forty
Cloths, and did gain by every Cloth Two Shillings, whereof he de
manded Tithes, and upon this Surmiſe only, that by the Law of the
Land he ought not to demand Tithes of ſuch Mills, a Prohibition
was granted, for that Tithes are not payable of ſuch Things whereof
comes the Gain only by the Labour of Men, without a Cuſtom.
Hill. 16 Jac. B. R. Danderidge v. Johnſon. 2 Croke 523. But re-
folved it was afterwards, that 'Tithes by the Law are due of ſuch
Mills, and a Prohibition denied. Mich. 11 Car. B. R. Johnſon v. Dan
dridge. i Roll's Abr. 641. But of a Corn-Mill, whether driven by
Wind, Water, Horſe, or Hand only, as Iron Mills, the Tithes are faid
not to be Perſonal, but Predial or Mix'd; and therefore according to
the Cuſtom of the Realm, the Miller ought to pay the Tenth Toll-
Corn-Mills diſh for Tithes. i Roll's Abr: 656. ſee 2 Inft. 621, 652. contra, and is
payable to the Proprietor of the Tithes where the Mill is, and not
where the Miller lives, which proves it to be a Predial Tithe, as
was ſaid by the Chief Juſtice Holt. Mich. 3 W. & M. B. R. in
Gumley and Falkingham's Cafe, and ſo is Linwoods tit. de Decimis
c: quamquam verb. ficut feni ; for Predial Tithes are payable where
they ariſe, Perſonal Tithes where the Perſons audiunt divina Ġ reci-
piunt Eccleſiaſtica Sacramenta, Linwood, eod. tit. Có San&ta v. Ec-
clefiis. But this is not to be underſtood of old Corn-Mills, but of Mills
more lately erected ; for thus it hath been enacted :
Alſo if any do erect in his Ground a Dill of new, and after the
Parſon of the place demanded Tythe foz the ſame, the King's Pro-
bibition doth ttiue in this form Quia de tali Molendino hactenus
Decimæ non fuerunt folutæ, prohibemus, &c. Et ſententiam Excom-
municationis, fi quam hac occaſione promulgaveritis, revocetis om-
ſino. The Anſwer : In ſuch caſe the King's Prohibition was nie-
ver granted by the king's allent; nog never fall, which hath decreed
that it thall not hereafter lie in ſuch Cales. Stat. 9 Ed. 2. cap. 5.
By: which it appears, that all Corn-Mills not erected before the Time
of Ed. 2are titheable in themſelves ; but becauſe that many ſince
erected may be to us ancient, and their firſt Erection unknown, the
Rule I conceive muſt be, that all Mills whoſe firſt Building was be-
how to be fore the Memory of any Man living, and is not otherwiſe known,
Tithe-free. not having been ſubject to this Day to the Payment of Tithes, ſhall
be intended to be erected before the Statute, and ſo to be 'Tithe-free.
to pay Tenth
Toll-diſh.
The Rule
i
But
Chap. LI.
567
The Complete Incumbent.
Tithes.
But as to Mills for which Tithes have been paid, and new Mills, Perſonal
Tithes muſt be paid as is aforeſaid ; by Coke. Trin. 14 Jac. B. R.
Jake's Cafe. i Rolls Rep. 405. Therefore when Prohibitions are mo-
ved for to ſtay a Suit for 'Tithes in the Ecclefiaftical Court for anci-
ent. Mills, it muſt not be only ſuggeſted that the Mill is an ancient
Mill, but alſo that it hath never paid any Tithes, and the Courts of
Common Law generally do require an Affidavit to be made of the
Truth of ſuch Suggeſtion, viz. that the Mill is ancient, and hath not
paid any Tithes ; and if a new Mill be erected upon Lands diſcharged
of Tithes by the Statute of Monaſteries. 31 H. 8. 13. 'Tithes ſhall
be paid thereof; by the whole Court, and a Prohibition denied, for
the Rule is, De Molendino de novo Erecto non jacet Prohibitio. Trin.
15 Fac. B. R. Anonymus. 2 Croke 429.
So if for Two Meſſuages, and Two ancient Water-Mills to grind Tithe of a
Corn, the Owner hath uſed Time out of Memory to pay to the Parfon Mill not
Twenty Shillings yearly in Lieu of all Tithes iſſuing out of the faid dial, com
Meſſuages and Mills, and after the Owner of the Meſfuages and Mills
doth erect Two new Corn-Mills within the faid Meſſuages, this Mo-
dws ſhall not diſcharge theſe new Mills from the Payment of Tithes,
for that the Tithe of a Mill is not meerly predial, but mixed with
the Perfonalty, and is more of the Perfonalty than of the Predialty,
per
Cur. Mich. 13 Car. B. R. Goodwin and Smith's Cafe. I Roti's
Abr. 652. But by the Chief Juſtice Holt, the Tithes of Mills are to
be paid in the Pariſh where the Mill is, and not where the Miller
lives, which proves it to be more a Predial Tithe. Mich. 3 IV. & M.
B. R. Gumleg v. Falkingham. Yet it is ſaid to be held by the Court,
that if a Man doth preſcribe to pay to the Parfon a certain 'Thing,
as a Modus Decimandi, for all the Demeans of his Manor, and after-
wards he doth erect a Wind-Mill upon Parcel of the faid Demcans,
he fhall not pay any Tithes for this Mill, but the Modus given for
the Demeans ſhall go in Diſcharge of it alſo, being builded upon the
Land diſcharged. Trin. 39 Eliz, B. R. Ruſel and Moor. i Roll's
Abr. 651.
So if a Man feiſed of Eight Acres of Paſture and Meadow, for the
Tithes of which he hath ufed to pay Time out of Memory Five Shil-
lings and Six-pence, and afterwards the Owner of it doth erect upon
it one Corn-Mill, he ſhall pay no Tithes for the Corn-Mill, for that
the Land was diſcharged by the Modus Decimandi. 1 Roll's Abr. 652.
2 Inft. 490.
But theſe Caſes, though they differ in Circumſtance, yet the Rea-
ſon of judging ſeems to be the ſame as to them all; if otherwiſe, I
think the Cafe in Croke, and alſo Goodwin and Smith's Cafe, to be
more agrecable to Reaſon; they are alſo the latter, for every Modus
is ſuppoſed to ariſe from an original Agreement upon giving a Recom-
pence for the Tithes, which Agreement cannot be preſumed to be made
for other than the Fruits of the Land, there being no other Thing then
in Being, and not for the Tithes of that which is of a different Na-
ture; therefore if a Man hath a Meadow, on which he hath alſo a
Mill, and agrees with the Parfon for the Tithes of the Profits ariſing
from the Land only, it will be hard to ſay, that this Agreement ſhall
be extended to free the Mill alſo, though it was then in Being, be-
caufe the Profit of the Mill is another Thing different from the Pre-
fit of the Land. And Coke ſeems to be of Opinion, that the Tithe
ز
of
568
The Clergy-Man's Law : Or, Chap. LI .
Perſonal
Tithe.
1
Perſonal of a Corn-Mill is but a Perſonal Tithe. 2. Inft. 621. If ſo, the
Ciches.
Tithes of a Mill (if the Owner imploy'd it himſelf) is paid with re-
If the Tithe ſpect to his Perſon, conſidered with his Imployment, and not with re-
of a Corn- ſpect to the Land. And none ſure will affirm, that a Man who by
his Imployment and Cuſtom of the Place is to pay a Perſonal Tithe,
purchaſing Land Tithe-free, or for which a Modus is paid, is there
fore free from paying a Perſonal Tithe; no not though he crects his
Habitation upon ſuch Land; why then if he erects the Engine of his
Art there, for ſuch are ſaid fo to be. However, a Corn-Mill may be
diſcharged of paying the Tenth of the Toll, by paying a Modus for
it; and if the Owner in ſuch Cafe be ſued for the Tenth, a Prohibi-
tion lies. Trin. 14 7ac. B. R. Jake's Caſc. i Roll's Rep. 405. But
if the Surmiſe be of a Cuſtom to pay a certain Rate for all Mills
erected, and to be erected, the Cuſtom ſhall not go to any new Mill;
and therefore in ſuch caſe, by the Rule of the Court, a Conſulta-
tion was granted as to a new Mill, and for the ancient Mill the Mo-
dus was allowed to be good. Trin. 14 Jac. B. R. Jakes. Bulſtrode
3. pag. 212. So if there be a Cuſtom in Two Hundreds, (though in
Of a Baker's ſeveral Counties,) that if any common Baker of Bread, inhabiting in
Ere&ing a
either of the Hundreds, doth erect any Water-Mill, Wind-Mill, or
Hand-Mill, within either of thoſe Two Hundreds to grind his Corn,
to be imployed for making of Bread for himſelf in his Trade of a
common Baker, for the Maintenance of his Family, and to fell to
his Cuſtomers inhabiting there, or near to the faid Hundreds, for their
Şuftentation, by which the Parſons in the faid Hundreds have the
greater Tithes, viz. of them who have Lands or Tenements, and of
others, as of Manual Tradeſmen, by Way of Offerings, and ſuch
like, and in reſpect thereof no Tithes have been paid in Time where-
of, &c. for grinding of this Grain fo imployed; this was held to be
a good Cuſtom, and a ſufficient Diſcharge, and a Prohibition was
granted, though the Baker did inhabit in one Hundred, and erected
his Mill in another, for that Two Hundreds may preſcribe in Non
Decimando. Paſch. 15 Car. B. R. Kidden and Edwards's Cafe. I
Roll's Abr. 654. But Quære, of the Conſideration of this Cuſtom, for
that the Matters ſuggeſted ſeem to be no Conſideration to the Parfon
for the Tithes of the Toll of the Mills.
Mill.
СНАР.
3. ,
Chap. LII.
569
The Complete Incumbent.
aportuaries
CH A P.
A P. LII.
Mortuaries, Offerings, Oblations, drid Ob-
ventions.
and
!
Eſides Lands, Glebe and Tithes; there are other ſmall Profits due Mortuaries
payable to the Incumbent of a Parſonage or Vicarage;
as Mor-
tuaries and 'Offerings; called alſo Ollations and Obventions. The Law
as to Mortuaries is declared and ſettled by Ac of Parliament in theſe
By 21 H. 8.
Words: Fojalmuch as Dueftion, Ambiguity and Doubt; is chanced Ap. 6.
and riſen iipon the Deder, Manner and form of Demanding. Res
ceiving and Clainiing of mortuaries, otherwiſe called Colle:preſents,
as well for the Greatneſs and Galue of the fame, which; as hath
lately been taken, is thought over-ercemive to the poor people, and
other Perſons of this Realm, as alſo for that ſuch Poituaries of
Colle-preſents have been demanded and levied for ſuch as at the
Cime of their Death have had no Property in any Goods 02 Chat
tels, and many Times for travelling and wayfairing men, in the
Places where they have foztuned to die: To the Intent that all
Doubt, Contention and Incertainty herein may be removed, and
as well the Generality of the King's People therein remedied, as
alſo of the Parſons, Wicars, Parity-Puelts, and other having In
terett in ſuch Dostuaries and Colle-pletents indifferently provided
for.
Be it therefoje enađed, oldained and eſtablidhed by the King out
Sovereign Lojd, and the Lords Spiritual and Cempozal, and the
Tommons of this Parliament allembled, and by authority of the
faine, that from the firſt Day of April, in the year of our Lold God
MDXXX. no Parſon, Uicar, Curate, no Pariſh Prieſt, ne any o:
ther Spiritual Perſon, nor their Ferniols, Bailiffs, no Lellees,
fhall take, receive ou demand of any Perſoni oj Perſons within this
Realm, foj any Perſon od Perſons dying within the ſame, any man-
ner sportuary 02 Colle-preſent, ie any Sum o sums of Doney, nie
any other Thing for the ſame, more than is hereafter mentioned :
Ne alfu fhall convent or call any Perſon od Perſons before any
Judge Spiritual for the Recovery of any ſuch goztuary oj Colles
preſents, oz any other Thing for the ſame, more than is hereafter Penalty for
mentioned, upon Pain to foyfeit for every Time ſo denianding,
demanding
receiving, taking, o), conventing, of calling any ſuch Perforis beé this A&t al-
foje any Spiritual Judge, to much in Ualue as they fall take abobe lows.
the Sun limited by this Axt; and over that 40 s. to the Party grieved
contrary to this da; for which Fozfeiture, tije Party to grieved
contrary to this a& fhall have an Adion of Debt, by Wirit, Bill,
Plaint, O2 Information ili any of the King's Courts, wherein ng
Wlager of Law, Efoiit, nol Peotexion ſhall be allowed.
Firſt, It is opdained, eſtabliſhed and enađed, That tio matiner Pol- Not for
tuary Hall be taken oj demanded of any perſon whatſoever he be, Goods under
which at the Time of his Death bath in moveable oods under the
Malue of Ten parks. Alſo, that no Dcituary small be given od
demandco
more than
PPPP
570
The Clergy-Man's Law: Or, Chap. LII.
E-c.
suportuaries. demanded from henceforth of any manner Perſon, but only in ſuch
Place where heretofole Dotuaries have been uſed to be paid and
given, and in thoſe Places none otherwiſe but after the Rate and
Form hereafter mentioned. He that any Perſon pay Moituaries
in moje Places than one, that is to ſay, in the Places of their moſt
Dwelling and Habitation, and there but one postuary. Nono
Parſon, Wicar, Curate, Parich-Prieſt, oz other, thall foư any Per
ſon dying ou dead, and being at the Time of his Death of the Ualue
in moveable Goods of Ten Parks oy more, clearly above his Debts
paid, and under the Sum of 30l; take for å 97oftuary above 35: 4 d.
in the whole; and for any perſon dying op dead, being at the Time
of his Death of the Walue of 301. Od above clearly, above his
Debts paid, in moveable Hoods, and under the Walue of 40l. there
thall no more be taken oy demanded fou a Moltuary than 6 s. 8 d. in
the whole; and for any perſon dying or dead, having at the Time
of his Death of the Walue in moveable Goods of 401. od above, to
any Sum, whatſover it be, clearly above his Debts paid, there
thall be no more taken, paid ou demanded for a Dostuary than 10 s. in
the whole.
Wives, Chil Provided alway, That fou no Woman being Covert-Baron, no?
dren, and
Travellers,
Child, ne foz any perſon not keeping youſe, any manner Mortuary
ve pato, ne that any Parſon, Wicar, Curate, Parith-Prieſt, az other,
ask, deinand op take fou any ſuch Woman, Child, og for any Per
ſon not keeping poule, dying op Dead, any manner Thing od po
ney, by Way of motuary, ne alſo fol, any Wavfaring Man, oz
other that dwelleth not, ne maketh reſidence in the place where they
fhall happen tu die, but that the mortuary of ſuch Wayfaring Pers
ſons be anſwerable in Places where moltuaries be accuſtomed to be
paid, and in Mannce and form, and after the Rate befoje mention:
ed, and none otherwiſe, in the place or Places where ſuch wayfaring
Perſons at the Time of their Deaty had their moſt habitation,
houſe and Dwelling-places, and no wliere elſe.
Provided alway, That it fhall be lawful to all manner Parſons,
Money, co Vicars, Curates, Parill-Pretts, and other Spiritual Perſons, to
bequeathed.
take and receive any inanner Sum of Money, oj other Ching, which
by any perſon dying thall foztune to be diſpoſed, given od bequeath.
ed unto thein, oz any of them, od to the high Altar of the Church,
this då 02 any thing mentioned notwithſtanding.
And be it alſo enañed by the authority aforeſaid, That no mo2tit-
aries no Corſe-preſents, ne any Sum od Sums of money, or other
Thing, for any Poztuary 02 Colle-preſent, ſhall be demanded, takelt,
received o2 had in the Parts of Wales, nou in the Marches of the ſame,
1102 in the Towns of Calice 02 Berwick, nou in the marches of the
ſame, but only in ſuch Parts and Places of Wales, marches and
Towns aforeſaid, where mortuaries have been accuſtomed to be
taken and paid. And in thoſe Parts and Places no mojtuaries noz
Colle-preſents, ne any other Thing for Duituary oj Colle-ppeſent
from hencefožth fhall be demanded, taken, received or had, but only
after the form, Dider and Danner above ſpecified in this preſent
Ai, and none otherwiſe, ne of any other Perſon od Perſons than is
limited by this preſent ax, upon the pain contained in this preſent
Provifo for
Wales and
Berwick.
4
Provided
28.
Chap. LII
The Complete Incumbent. 571
1
Mortuaries.
C. 6. Mortua.
ries are taken
of Bangor,
ſo, That in ſuch Places where botuaries have been accuſtomed to But Note, by
leby, demand od take, after the Deceaſe of any perſon or Perlons,
Provided alſo, That it fall be lawful to the Biſhops of Bangor, Boztuaries
Landaff, St. Davids and St. Alaph, and likewiſe to the archdeacon of
Biſhops in
Cheſter, to take ſuch Portuaries of the Prieſts within their Dioceſs Wales to take
and Juriſdiâionis, as heretofore have been accuſtomed. Provided al of Prieſts
he taken of leſs Galue than is aforeſaid, That no perſon ſhall be coin: a Statute
pelled to pay in any ſuch Place any other portuary, 02 mode foz any Anne Ses. 2.
Portuary than hati
, been accuſtomed, ne that any Bortuary in ſuch
Place fhall be demanded, taken, received ez bad of any perſon oz away in the
Perlons erempt by this Ač, 1102 in any wiſe contrary to this Aą, upon faid Dioceſes
Pain afoje limited. Scat. 21 H. 8. c. 6.
Landaff, St.
Davids, and St. Aſaph, and a Recompence given in lieu thereof to the Biſhops of thoſe Dioceſes. See the
faid A& for this purpoſe, and for annexing certain Prebends to the Maſterſhip of Pembro. Coll. and Provolt-
hip of Oriel Coll. Soc.
Folaſmuch as divers and many the King our Sovereign Lold's 26 H.S.C. 15.
Subjects, inhabiting within the Archdeaconry of Richmond in the Archdeacon-
County of York, be, and of long Time have been ſure and grievouſly mond
erađed and impoveriſhed by the Parſons, Aicars and others, ſuch as
have Benefices and Spiritual Promotions within the ſame, as by
taking of every Perſoni, when he dyeth, in the Name of a Penſion
ol of a Portion, Coinetime the $2inth Part of all his Goods and Chat-
tels, and ſometime the Third Part, to the open and manifeft Im-
poverithing of moſt of all the King's pool Subjeas inhabited and
decreafilig within the ſame.
Wherefoże be it opdained, eilaữed and eſtabliſhed by the King our
Sovereign Lold, tije Lous Spiritual and Temporal, and the Com-
mons in this preſent Parliament allembled, and by the Authority of
the ſame, that from the Feaſt of St. Mark the Evangelift neft com-
ing, no manner of Spiritual Perloii, ol others now having, oy that
from the ſaid Feaſt fhall have any manner of Benefice, oj other Spi-
ritual pzomotion within the ſaid Archdeaconry, fiall in no wiſe ask,
ry of Rich-
any ſuch Portions 02 Penſions, 1101, any other Demand o? Duty in Penalty for
the name op Lieu of the ſame, upon pain to incut ſuch Dangers, a&ing con-
Forfeitures and Penalties, as be contained in the Statute of P20 Aa.
trary to this
viſois, made the five and twentieth Year of the Reign of our mott
Noble Progenitu, King Edward the Third : But that all and every
the King's Subježs of the ſaid archdeaconry, and their Erecutors
and adininiftrators, from henceforth thall be oldered, intreated and
uſed fod their Goods and Chattels after their Deceaſe, in like man:
ner, Form, Dider and Condition, as is contained in the Statute
made in tije Dne and twentieth Year of our moſt noble and vião-
rious Reigni, fou Probate of Teftaments, and none otherwiſe; any
ſuch Cuſtom, Bull, Compoſition, Preſcription Od Didinance hereto
foje had, obtained by uſed to the contrary, within the aforeſaid arch-
deaconry, in any wiſe notwithttanding. Star. 26 H. 8. cap. 15.
As to Offerings, Oblations or Obventions, which are all the fame, it Offerings,
hath alſo been enacted, Piovided always, and be it enađed by the Aus &c. how to
thority afożeſaid, That all and every perſon and Perſons which by 2 oz Ed. 6.
the Laws and Cuſtoms of this Realm ought to make or pay their c. 13.
Dfferings, fhall yearly from hencefo2th well and truly content and
pay his oz their Dfferings, to the Parloni, Wicar, Proprietor, og
Pppp 2
their
572
The Clergy-Man's Law: Or, Chap. LII.
What Offer-
ings may
Portions,
Egoc.
c. 19. of
Penſions and
Soc.
Derrings. their Deputies oz Fermors of the Pariſh 02 Pariſhes where it fhall
fortune oz happen him or them to dwell o? abide : And that at luch
four Dffering-Days, as at any Time heretofore within the ſpace of
four years laſt paſt, hath been uſed and accuſtomed foz the Payment
of the ſame, and in Default thereof to pay for the ſaid Diferings
at Eafter then nert following. Star. 2 & 3 Ed. 6. cap. 13.
Under this Duty of Offerings, are comprehended not only thoſe ſmall
accuſtomary Sums commonly paid by every perſon when he receives
comprehend.
the Sacrament of the Lord's Supper at Eaſter, which in many Places
is by Cuſtom two Pence from every Communicant, and in London a
Groat an Houſe, but alſo the accuſtomary Payments for Marriages,
Chriſtnings, Churches and Burials; theſe properly belong to the Par-
fon or Vicar of the Church where they are made, and are recoverable
by Law in ſuch Places and Caſes only, where there is a Cuſtom for
the Payment of certain Sums upon the Performance of theſe ſeveral
Duties.
The Profits of fome Churches alſo do conſiſt partly in Penſions or
Corrodies
, Annuities, Portions of Tithes, Corrodies, Indempnities, Synodies and
Proxies due and payable from other Churches or Perſons in reſpect
thercof; Remedy to recover which is given by the Statute following.
34 S 35 H.S. Tühere the Archbiſhops, Biſhops, Archdeacons, and the other EC-
clefiaftical Perſons, of both the Provinces of Canterbury and York,
Portions to within this Realm of England, have heretofole in the Right of their
Archbiſhops, Churches, had and received out of the late monaſteries, Abbathies,
Piiouies, Nunneries, Colleges, Hoſpitals, noules of Fryars, and
other Religious and Ecclefiaftical Houſes and Places now dile
Toived, and out of the Danois, Lands, Cenements, and Heredita.
ments velonging to the ſame, divers Penſions, Portions, Corro
dies, Indenipnities, Syiiodies, Prinzies, and other Profits: and
Wijere alſo in the Parliament begun and holden at Weltminſter the
Eight and twentieth Day of April, in the Dne and thirtieth Pear of
the Reign of our Sovereign Lold Henry the Eighth, by the Grace of
ÖDD, King of England, France and Ireland, Defender of the faith,
and of the Church of England, and alſo of Ireland, in Earth the Su-
preme Head, It was ojdained and enađed by the authority of the
Parliament, That as well the ſaid late Monafteries, Abbathies,
Pliojies, Runneries, Colleges, Hoſpitals, houſes of Fryars, and
other Religious and Ecclefiaftical houſes and places, with the ma
nors, Lands, Tenements, Hereditaments, and other Profits be:
longing unto the ſame late Bonafteries, abbathies, Priores, and
other Religious and Ecclefiaftical Houſes and places as then were,
02 then hereafter fiould come unto the King's Highneſs Hands,
thould be vetted, deemed and adjudged in the a&ual and real por:
ſellion and Seiſon of the King's Highneſs, his þeirs and SUC-
cellons :
Saving to all and every perſon and Perſons, and bodies Poli:
Saving to
Perſons, and tick, and their Heirs and Succellors, and the Heirs and Succellois
Bodies Poli- of all and every of them, other then the late abbots, Prios, Ab-
tick, sc
betres, Proceſſes, and other Ecclefiaftical Governors and Governer
fes of the ſaid late monafteries, abbathies, Priojies, Nunneries, Col-
leges, Hoſpitals, Houſes of Fryars, and other Religious and Eccleda-
ftical poules and Places, and their Succeſſors, and the Succefors of
every of them, and ſuch as pretend to be founders, Patrons op Donos
of
3
Chap. LII.
The Complete Incumbent.
573
Esc.
of ſuch Yonafferies, abbathies, Priojies, Nunneries, Colleges, DorMenfions,
pitals, boules of fryars, and other Ecclefiaftical houſes and Pia-
☺
ces, op of any manois, Meſſuiages, Lands, Tenements, or other
Hereditaments belonging to the ſame, or to any of them, their
heirs and Succelloys, and the Heirs and Succelīois of every ſuch
Founder, Patron o Donoj, and the then Abbots, Priors, abbefles,
Proefles, and other Eccleſiaſtical Governors and Governieties of ſuch
azonaſteries, abbathies, Priories, Nunneries, Colleges, Hoſpitals,
Houſes of Frvars, and other Religious and Ecclefiaffical Houſes and
Places, which then hereafter thould happen to be diſloved, ſuppreſſed,
renounced, relinquiſhed, fozfeited, given up, al come to the King's
Yigneſs, and ſuch as pretend to be founders, Patrons, 02 Donors
of ſuch Monaſteries, Abbathies, Projies, Nunneries, Colleges,
Hoſpitals, houſes of Fryars, and other Ecclefiaftical Houſes and
Places, ou sf any Manors, ac fuages, Lands, Tenements on other
Hereditaments to the ſame belonging, od to any of them, their beirs
and Succellols and the Heirs and Succellois of every of them, all ſuch
Right, Title, Claim, Intereſt, Poffefiion, Rents, Charges, annuities,
Lenſes, Ferms, Dffices, fees, Liveries, Livings, Portions, Penüons,
Corrodies, Commons, Synodies, Pories, and other profits which
they oy any of them have, claim, ought, may ou might have had in oj
to the Piemiſles, to any part od Parcel thereof, in ſuch like
manner, Form and Condition, to all intents, Relucas, Conffru-
dions and Purpoſes, as if the ſame då had never been had nie made,
(Rents-ſervices, Rents-leek, and all other Services and Suits only
èrcept) as by the ſame dit among divers other Chings therein con-
tained more plainly is ſhewed, and may appear.
And yet notwithſtanding the ſaid general Saving contained in the Archbiſhops,
faid A#, the ſaid Archbifhops, Biſhops, archdeacons, and other Ecclefia &c. denied
aftical Perſons of both the ſaid Provinces of Canterbury and Yerk, be the said Pen-
,
and lithin the making of the ſaid Ad have been diffurbed and denied of
the yaving, receiving and gathering of the ſaid Penſions, Portions,
Coxodies, Jndeinnities, Synodies and Prories, with other Pro
fits belonging unto them, by divers of the Ferinors and Dccu-
piers of great Part and Parcel of the ſaid Yanols, Lands, Te-
nements and Hereditaments of the ſaid late monaſteries, and other
Eccleſiaſtical youles and Places, 02 being Parcel of the Potrelli-
ons of them, and have no direit meant to obtain, recover, ot come
to the ſame, not only to their great Hurt and Dainage, but alſo
like to grow, and be to the great Loſs and Diſheriſon of the King's
Majeſty, concerning his firft-fruits and Tenths:
Foz Refovination whereof, be it oldained, ettabliſhed and enađed
by the King's Highneſs, with the adent of the Lords Spiritual and mation, c.
Temporal, and the Commons in this preſent Parliament allem- enacted.
vled, and by the authodity of the ſame, Chat if any Perſon 02
Perlons being Fermiod ol Dccupier of any Manois, Lands, Tene
ments, Parlonages, benefices, ol other bereditaments of any of
the ſaid late Yonaſteries, ou Ecclefiafiical Houſes or Places, ou DE-
longing to thein, oz any of them, by the King's highneſs Gift,
Gjant, Sale, Erchange Bd otherwiſe, out of which Premifles any
ſuch Portions, Penſions, Corrodies, Indeninities, Synodies,
Pories, op any other Profits, have been heretofoje lawfully going
out, anſweted o2 paid to any of the Arcybiſhops, Billjops, arch:
deacons
For Refor-
574 The Clergy-Man's Law:Or, Chap. LII.
Egec.
Proceſs a
Benfions, deacons and other Ecclefiaftical Perſons avoveſaid, do at any Time
after the firſt Day of April nert coming, wilfully deny the Pap-
ment thercof, at the Days of Payment heretofore accutoinet,
of any of the ſaid Penſions, Portions, Corrodies, Indemu?
ties, Synodies, Pories, u2 any other Profits, whereof the
ſaid archbiſhops, Biſhops, archdeacons, oz other Ecclefiaftical
Ec
. to make Perſons were in Poffeffion, at o2 within ten Pears nert before
the Time of the Dillolution of any ſuch Monaſteries, or other
gainſt them. Ecclefiaftical Houſes or Places, that ther it fjall be lawful fou the
Came Archbiſhops, Biſhops, archdeacons, or other Ecclefiaftical Per
fons afojelaid, being ſo denied to be ſatisfied and paid thereof, and
having Right to the ſame Thing in Demand, to inake ſuch D20
cels as well againſt every ſuch perſon and perſons as fhall ſo deny
Payment of the ſame Penſion, Portions, Corrodies, Pzories, In
Demnities, Synodies, op any otijer Profits, wiich of Right cught
to be paid, as is afoceſaid, as againſt the Church ou Churches
chargeò with the came, as heretofole they have lawfully done, and
os by, and accoding to the Laws and Statutes of this Realni they
may now lawfully do, foż the true Payment and Recovery thereof:
And if the Party Defendant be lawfully Conviã in any ſuch Suit,
Cauſe oz matter, according to the Ecclefiaftical Laws; then the
Party Plaintiff ihall have and recover againſt the Party Defendant
the Thing in demand, and the Walue thereof in Damages, with
his Coſts for his Suit.
And be it further opdained and enaged by the Authority aforeſaid,
the Common That if it fortune the Cauſe oz Batter of Hariance between any of
the ſaid Parties be determinable at the Common Law, that then
the Party grieved to ſue foz his Recovery and Remedy therein at
the Common Law: and if the Party Defendant foztune to be, bp
the Courſe of the Common Law, lawfully condemned to the Party
Plaintiff; then the ſaid Party Plaintiff fhail likewiſe have and re-
cover againſt the Party Defendant the Thing in demand, and the
Ualue thereof in Damages, with bis Coffs for his Suit.
Provided alway, and be it enađed by the Authority alojelaid, Chat
Proviſo upon all
and ſingular ſuch of the ſaid Archbiſhops, Biſhops, archdeacons,
Gift or Sale and other Ecclefiaftical Perſons, which have Right or Title to
for Lives or claim, demand, or enjoy any of the ſain Penſions, Portions, Cod
rodies, Indemnities, Synodies 02 Pories againſt any perſon of
Perſons, to whom the King hath made, oy hereafter fhaii make it
Writing under Seal, any Sale, Hift, Geant, 02 Leale, for
Term of Life ol Lives, ou Vears, of any of the ſaid Panous, Lands,
Tenements, Parſonages, Benefices, and other Hereditaments,
charged, od chargeable to od with any of the ſaid Pentions, Portions,
Coprodies, Indeinnities, Synodies oz Prories, and alſo hath cove-
nanted, granted, promiſed od agreed, o2 hereafter Hall covenant,
grant, promiſe og agree, by the laid Writing to acquit, diſcharge,
od ſave harmleſs the ſame Perſon od Perſons, of all Penſions,
Portions, Corrodies Indemnities, Synodies and Peories, going
out of the Premitles 02 any Parcel thereof, as be oz fall be inen-
tioned in the ſame Writings op any of thein, fhall ſue fou their Re:
medy and Recovery thereof in the Court of the Augmentations of
the Revenues of the King's Crown, and not elſewhere : anu tijat
the Party Defendant having any ſuch Diſcharge, being convented,
called od ſued to any other Court of place, od before any other
3.
Tuore,
Proceſs at
Law.
Years.
Chap. LIII.
575
The Complete Incumbent.
Churthis.
Duties.
Judge, for any the Cauſes abouclaid, ſhall be diſcharged and diſ Suits fox:
milled out of the ſame Court or Place without any Ching paying
foy the ſame, by the only theking forth atip of the lato Writings,
ſealed under any of the King's Seals, proving oj declariilit the Bin
to have covenanted, promiſed by agreed to monuit, diſyarge og Inut
harmleſs the ſaid Party Defendant therxder as 15 tatavlaid; :any
thing contained in this da to the contráry. wxivithtattang. Staci 34
& 35 H. 8. c. 19.
And in Caſes when any of thefè Duties were : due storm any Re- Theſe Duties
ligious Houſe diſſolved, and the King did of now incoporate la So- how payabla
ciety, as Dean and Chapter, and give to them the whole Site of Corporati
fuch Religious Houſe, with all Manors, Lands, Tenements and Herie- ons
ditaments Parcel thereof; fuch Duties are duc and payablo from the
new Corporation, and if a Corporation be fitrendred or diffolved by
the Death of the Members, and the King dgth incorporate them by
a new Name, an Annuity before payable by the faid Corporation is
not determined. Trin. 32 Eliż. the Biſhop of Rocheſter's Cafe, 2 dnt:
derſon 106. Eſpecially theſe : Duties remain by Vertue of the afore
faid Statute, becauſe they were in Ele at the Time of the making
thercof, and not cxtinguiſhed by the Surrender of the Religious
Houſes; for their Corporations were not diſſolved by their Surrender,
until all the Religious Perſons had relinquiſhed their Holiſes and Ha-
bits. Trin. 2 Jac. in the Exchequer. The King and Dr. Forth's Cafe,
Davis, P. I.
i
CH A P. LIII.
Tithes, Mortuaries, Oblations and other
Church-Duties, in what Courts to be ſued
for.
EPC.
confift.
I
Am come now to ſpeak to the Second Queſtion with reſpect to the WhatReme-
Profits belonging to an Eccleſiaſtical Benefice, viz. what Remedy to recover
the Law hath given the Owner for the Recovery of them, or Satiſ-
faction for them, being detained.
Theſe Profits do conſiſt of Tithes of all Sorts, or other Recompence of what they
for them, Penſions Mortuaries, Offerings (called alſo Oblations and
Obventions) under which are comprehended all cuſtomary Payments
for Marriages, Chriſtenings, Churchings and Burials, and have been and
yet are recoverable in the Eccleſiaſtical Court, as is notorious. Theſe
Courts anciently were thought fufficient to compel, by Church Cenſures,
the Laity to render unto Churchmen their ſeveral Dues; but tho' ſuch
Reverence then was given to the Cenſures of the Church, yet Ways
were found out to vex the Incumbents by reaſon of their taking their
Tithes, &c. viz. By Scire Facias, and Aations for Goods taken away,
Gr. Whereupon it was enacted, (Wheceas Writs of Scire Facias
have been granted to warn Pżelates, Religious and other Clecks, Remedy by
to anſwer Diſmes in our Chancery, and to lijew ff they bave any
Thing
18 E. g. Co 7.
6
6.14
of Mortua-
ries.
Reaſon. In Witneſs whereof, at the Requeſt of the ſaid Prelates,
576 The Clergy-Man's Law: Or, Chap. LIII.
Duits foz Thing, oj can any Thing ſay, wherefore ſuch Diſmes ought not to
Church-
Touties.
be reſtored to the ſaid Demandants, and to anlwer as well to us as
to the Party to ſuch Diſines: That ſuch Writs from henceforth bc
not granted, and that the Proceſs hanging upon ſuch Writs be ad.
nulled and repraled, ano: that the Parties be diſmiſſed from the Se
cular Judges of ſuch manner of Pleas: Saving to us our Right,
ſuch as we and pur anceſtors have had, and were wont to have of
to theſe prelettt Letters we have fet our Seal. Dated at London,
the 8th Day of July, the-Year of our Reign of England the 18th, and
of France the sth. Stat. 18 E. 3. C: 7.
Special A (And afterwards it was enacted thus :) It is acçoided, that at what
verment, &c. Cime that any perſon of the Holy Church be drawn in plea in the
tle. i 'R. 2. Secular Court for his own Tythes taken, by the Name of Goods
taken away, and he which is no diawn in Plea maketh an Erception,
o2 alledgeth that the Subſtance and Suit of the Buâneſs is only
upon Tythes due of Right and of Potrettion to his Church, or to
another his Benefice. That in ſuch Caſe, the general averment.
ſhall not be taken, without fhewing ſpecially how the ſame was his
Lay:Cattle. - 1 Rich. 2. C. 14.
After this, no Statute was made about the Profits of the Church, till
21 H. 8. c. 6. Stát. 21 H. 8. C. 6. was made about Mortuaries, which is fet down c.
51. But this Law was made to the Prejudice, rather than to the
Advantage of the Church, and at a Time when divers other Laws
were made for the leſſening the Power and Intereſt of the Clergy, to
the great Abatement of that Reverence which People had to the
Clergy and Cenſures of the Church, ſo that it was thought neceſſary
to enact as followeth.
27 H. 8. c. 20. Fozaſmuch as divers Numbers of evil-dilpoſed Perſons inhabited
againſt
fraction of in ſundry Counties, Cities, Towns and Places of this Realm
having no Relpea to their Duties to Almighty God, but againti
Right and good Conſciente, having attempted to ſubfirax and with
hold in ſome places the whole, and in ſome Places great part of
their Cythes and Dblations, as well perſonal as predial, die unto
God and Holy Church, and purſuing ſuch their deteftable Enormities
and Injuries, have attempted in late Time paſt to diſobey, contemit
and deſpiſe the proceſs, Laws and Decrees of the Ecclefiafficat
Court of this Realin, in moje temerous and large ganger than
before this Time hath been ſeen : For Refo2mation of which faid
Injuries, and for Unity and peace to be preſerved amongft the
King's Subje&s of this Realm, our Sovereign Loud the King be-
ing ſuppeain Head on Earth under God, of the Church of England,
willing the Spiritual Rights and Duties of that Church to be pze-
ſerved, continued and maintained, hath ojdained and enađed by
Authority of this preſent Parliament, That every of his Subje&s
of this Realm, England, Ireland, Wales and Caleis, and garches of
the ſame, accolding to the Ecclefiaftical Laws and Didinances of his
Church of England, and after the laudable Uſes and Cuftoms of
their Pariſl, or other place where he dwelleth, or occupieth, mall
yield and pay his Tythes and Dfferings, and other Duties of Holy
Church, and that fou fuch Subftrations of any of the ſaid Cythes,
Dfferings, oj other Duties, the Parſon, Uicar, Curate, op other
Party in that behalf grieved, may by due proceſs of the King's
Ecclefiaftical
Tithes.
4
)
Chap. LIII. The Complete Incumbent.
577
ties.
Ecclefiaftical Laws of the Church of England, convent the Perſon od Suits fo!
Perſons offending before his Dždinary, 02 other competent Iudge of Church Du-
this Realm, having Authority to hear and determine the Right of
Tythes, and alſo to compel the ſame perſon ol Perſons offending,
to do and yield their laid Duties in that vehalf; and in caſe the D
dinary of the Dioceſs, ou his Commiffary, od the Archdeacon og his
Dfficial, oj any other competent Judge afojelaid, for any Contempt,
Contumacy, Diſobedience, Od other Misdemeanoz of the Party De,
fendant, make Information and Requeſt to any of the King's mot
honourable Council, od to the Juſtices of the peace of the Shire
where ſuch Difendoj dwelleth, to altiſt and aid the ſame Didinary,
Commiſſary, Archdeacon, Dfficial ou Judge, to older oj reform any
luch Perſon in any Cauſe befoje rehearſed : That then be of the
King's Caid honourable Council, or ſuch two Juſtices of Peace,
whereof the one to ve of the Quorum, to whoin ſuch Information on
Requeſt thall be made, thall have full Power and authority, by Uer.
tile of this ax, to attach, od cauſe to be attached, the Perſon oz
Perſons againſt whom ſuch Information ou Requeſt fhall be made,
and to coinmit the ſame perſon or Perſons to ward, there to remain
without Bail 02 Dainpuiſe, till that ye oy they fall have found ſuf-
ficient Surety, to be bound by Recognizance, o2 otherwiſe before the
King's ſaid Chancelloy, oy Juſtice of Peace, oj any other like Chan-
cellor, od Juſtice of Peace, to the Uſe of our ſaid Sovereign Loud
the King, to give due Dbedience to the proceſs, Proceedings, De-
trees and Sentences of the Ecclefiaftical Court of this Realm
wherein ſuch Suit ou Patter for the Premiſſes ſhall depend od vě.
and that every of the King's Caid Counſellois, od two Juſtices of
the Peace, whereof the one to be of the Quorum, as is aforeſaid,
thall have full power and Authority by Uertue of this Aš, to take,
receive and recold Recognizances and Dulations in any of the Cauſes
above writteni.
Provided alway, That this ac od any Thing therein contained, Proviſo for
ſhall not extend to any Inhabitant of the City of London, fou oz the City of
concerning any manner of Tythe, Dffering, oj otyer Ecclefiaftical
Duty, grown and due to be paid ol yielden within the ſaine City,
becauſe there is another Dider made for the Payment of Tythes and
other Duties within the ſaid City.
Provided allu, That every perſon and Perſons, being Patty 02 Provifo for
Parties to any ſuch Suit, ſhall and inay make and have his and lawful A&ti-
their lawful aäioni, Demand of Proſecution, appeals, Prohibitions,
ces, Appeals,
and all other their lawful Defences and Remedies in every ſuch Prohibiti-
Suit, accouding to the ſaid Ecclefiaftical Laws, and Laws and ons, egyes
Statutes of this Realm, in as ample and liberal manner and form
as they oy any of then might have had, if this AĞ had never been
made : Any thing in this da above writteit notwithitanding.
Provided always, and be it enaged by Authovity afojelaid, That Proviſo for
this Na foz recovering of Tythes, ne any Thing therein contained, king Eccic-
thall take force and Effea but only until fuch Time as the King's liafticalLaws.
Vighneſs, and ſuch other rerii Perſons which his Highneſs fall
name and appoint for the makinig and ettabliſhing of ſuch Laws as
his Highneſs fhall affirin and ratifie to be called the Eccleſiaſtical
Lains of rhe Church of England : and after tīje Taid Laws (o ratified
Q999
and
London:
ons,
Defen
ri
!
578
The Clergy-Man's Law: Or, Chap. LIII. .
Which were
not niade.
t
Relief for
Tiches com-
32 H. S. c. 7.
Prcanble.
uit:; for and confirmed as is aforeſaid, that then the ſaid Cythes to be paid
to every Ecclefiaftical Perſon, accouding to Cuch Laws, and nione
otherwiſe. Stat. 27 H. 8. cap. 20.
Note, 'That the aforeſaid Statute doth not only extend to Tithes,
but alſo to Offerings, and all other Duties of the Church, and it is
yet in Force, notwithſtanding the laſt Clauſe therein, for that the
King and Thirty two Perſons by him appointed, never made and eſta-
bliſhed any Laws, to be called The King's Eccleſiaſtical Laws, and
this Statute is confirmed by Stat. 2 Ed. 6. cap. 13.
After the aforeſaid Statute upon the Diſſolution of Abbies, &c.
ing to Lay- Tithes, &c. came to the King, and from him to divers Lay-People
,
People. who by the Courſe of the Ecclefiaftical Laws could not ſue for them
in the Ecclefiaftical Courts; and having at that Time no Remedy for
them in the Temporal Courts, the following Act was made for their
Relief.
Whereas divers and inany perſons inhabiting in lundry Countries
and Places of this Realm, and other the King's Dominions, not
regarding their Duties to Almighty God, and to the King our Se-
vereign Luid, but in few years patt mode contemptuoufy and com-
inonly preſuming to offend and infringe the good and wholeſome
Laws of this Realm, and gracious Commandments of our ſaid
Sovereign Lod, that in Times paft hath been ſeen ou known, have
not letted to ſubtra& and withdraw the lawful and accutomed Tythes
of Coun, Day, Paſturages, and other Soft of Tythes and Dbla
tions cominonly due to the Owners, Poprietaries and Pokefors of
the Parlonages, Wicarages, and other Ecclefiaftical Places of and
within the ſaid Realin and Dominions, being the more encouraged
thereto, fou that divers of the king 's Subje&s, being Vay-perſons
having Parſonages, Vicarages and Tythes to them and their Heirs,
by to them and to their heirs of their bodies lawfully begotten, op
fou Term of Life 02 Years, cannot by the Dider and Courſe of the
Eccicfiaftical Laws of this Realm ſue in any Eccleüatical Court
for the Wrongful wit'jholding and detaining of the ſaid Tithes of
other Duties, 1102 cannot by the Dider of the Common Laws of
this Realm have any due Remedy againſt any Perſon of Perſons,
their Heirs op aligns, that wrongfully detaineth 02 withholdeth the
fame': By Dccafion whereof much Controverſy, Suit, Mariance
and Diſcoid is like to inſurge and enſue among the King's Subje&s,
to the great Detriment, Damage and Decay of many of them,
if convenient and ſpeedy Remedy therefore be not had and pro-
vided.
Wiherefove it is opdained and enated by our ſaid Sovereign Loud
Enated,
the King, with the Allent of the Lolds Spiritual and Tempojal, and
the Cornions in this preſent parliament aſſembled, and by the Au-
effc&tually thority of the ſame, that all and fingular Perſons of this his fald
Realin, Od other his Dominions, of what Eftate, Degree o2 Con-
dition Coever he od they be, thall fully, truly and effe&ually divide,
ſet out, yield, 0l pay all and fingular Tythes and Dfferings afoze-
ſaid, accouding to the lawful Cuſtoms and Uſages of the Pariſhes
and Places where ſuch Tythes ol Duties thall grow, ariſe, come
od be due. and in caſe that ſhall happen any Perſon oj Perſons of
his oy their ungodly od perverſe (Uill and qind, to detain and with
hold any of the laid Tithes op Dfferings, op any Part 01 Parcel
thereof,
1
that ſuch
Tithes be
:
2
Chap. LIII. The Complete Incumbent.
579
thereof, then the perſon or perſons being Ecclefiaftical op Lay-per- Suits foz
ron, having Cauſe to demand op have the Caid Tythes od Dfferings,
Tithes, Soc.
being thereby wronged ou grieved, fhall and may convent the Per-
fons or perſon ſo offending befože the Didinary, yis Commiflary, oz
other competent miniſter op lawful Judge of the place where ſuch
Wrong thall be done, accouding to the Ecclefiaftical Laws : and in
every ſuch Cale 02 Matter of Suit, the ſame Dıdinary, Commiflary,
02 other competent Miniſter og lawful Judge, having the Parties oz
their lawful Procuratoys before him of them, ſhall and may by vir:
tue of this ad proceed to the Eramination, Hearing and Determi:
nation of every ſuch Cauſe oz Patter ordinarily od fummarily, ac-
cording to the Courſe and Proceſs of the ſaid Eccicfiaftical Laws,
and thereupon may give Sentence accoudingly.
and in caſe that any of the Parties, for any Caule 02 Matter Cofts fecu-
concerning that Suit, do appeal from the Sentence, Dider and de: red, Esc. up
on an Appeal.
finitive Judginent of the ſaid Dadinary oy other competent Judge,
as is aforeſaid, then the ſame Judige by vertue of this aã, forth:
with upon ſuch appellation made, thail adjudge to the other Party
the reaſonable Coſts of his Suit therein before erpended, and flialı
compel the ſame Party appellant to ſatisfy and pay the ſame Coſts
ſo adjudged by compulſory Proceſs and Cenſures of the ſaid Laws
Ecclefiaftical, taking Surety of the other Party to whom (uch Cofs
fhall be adjudged and paid, to reſtore the ſame Colts to the Appel-
lant, if after, the principal Cauſe of that Suit of Appeal thail be
adjudged againſt the ſaine Party, to wijom the ſaid Cols fall
yielden : And ſo every Didinary on other competent Judge Eccleſia-
ftical, by vertue of this af, mall adjudge Coffs to tie Party lipon
every appeal to be made in any Suit 02 Cauſe of Subtraäion oz
Detention of any Tythes od Dfferings, or in any other Suit to be
made fol or concerning the Duty of Tuch Tythes od Dfferinys.
and further, be it enađed by the authority aforefaid, That if any Power to
Perſon od Perſons, after ſuch Sentence definitive given againſt 2 Juſtices to
thein, obſtinately and wilfully refuſe foz to pay their Tythes, 02 Cuch Coff mit the
Sums of qoney ſo adjudged, wherein they be condemned for the
ſame, that then two Juffices of the Peace for the ſame Shire,
whereof one to be of the Quorum, ſhall have Quthojity by this a, upon
Information, Certificate od Complaint to them made by Writing by
the ſaid Ecclefiaftical Judge that gave the ſame Sentence, to cauſe
the ſame Party lo refuſing, to be attached, and committed to the
nert Gaol, and there to remain without Bail 02 Painpuiſe, till he oz
they fhail have found ſufficient Sureties to be bound by Recogni:
zance of otherwiſe, before the ſame Juffices, to the uſe of our Sos
vereign Lou the King, to perfom the ſaid definitive Sentence and
Judigieiit.
192ovided always, and be it enađed by the authodity aforeſaid, Perfons disa
That 110 Perſon od Perſons thall be ſued oz otherwiſe compelled to charged.
yield, give ou pay any manner of Tythes, for any Panozs, Lands,
Tenements oz other Hereditaments, which by Laws or Statutes of
this Realm are diſcharged od not chargeable with the Payment of
any ſuch Tythes.
Provided ailo, and be it enađed by the Authority afozefaid, Chat Proviſo for
this A& nu? any Thing therein contained fall in any wiſe bind the Inhabitants
Q9992
In:
in London.
589 The Clergy-Man's Law : Or, Chap. LII.
Suit fo2
fhall and may have their Remedy in tye King's Tempojal Courts,
02
Juhalitants of the City of London Fund Suburbs of the ſame, foz
kirhes, inc. to pay their Cvtljes and offerings within the Game City and Sie
burbs otherwise than they cught. 02 moud have done before the ma
kiing of this 47 any Thing tri this 46 contained to the contrary
izatwwithſtandión
Remedy in and be it further eluaed by the authority aforeſaid, Chat in all
the Tempo Cates, where any Perfon u Perſons which now have, o2 which
for Perſons hereafter ſhall have any state of Inheritance, Freehold, Term,
diſfeiſed,&c. Right or Intereſt, of, in oj to, any Parſonage, diçarage, Portion,
Pention, Tythes, Dblations, 92 üther Ecclefiatical o Spiritgiai
Profit, which no 18, 92 plich bereafter fall be made Temporal
02 admitted to bė, atide and go to o iu Temppial Hands and Lap
üres and profits by the Law 01 Statutes of this Realun, Hall here:
after føtune to be filleiſed, deforced, waanged, o2 otherwiſe kept oz
put from their lawful Inheritance, Ettatė, Seicon, Pocelicn, De
cupation, Teim, Right o? Intereft cf, in od to the ſame, oj of, in
or to any Parcel thereof, hy any other perſon of Perfans claiming
o2 pretending to tave Interilt op Title in or to the ſame ; That
then in all and every ſuch Cafe. 02 Caſes, the Perſon oz Derſons to
diffeiço, deforced, oz wrongfulty kept oz put from his oy their Right,
ol Pomeņion, as is afoje rehearſed, their þeirs, Wives, and quich
other to whom ſuch Jujury and Wrong phalt be done of committed,
or other Tempojal Courts, as the Caſe Mall require, for the Beca
Deilon, Pofeſion, Term, Right B! Intereſt; by Writs original of
Præc quod reddat, art. of nove! diffeiſin, Mortdanc'. Quod ei deforceat,
Crits of Domoz oz othe r Writs original, as the Cale fall require
to ve deviſed and grantyd in the King's Court of Chancery, of e
very ſuch Parſonage, Wicarage, Potion, Penñou, or other Profit
called Eccleſiaſtical ? Spiritual, ſo to be demanded accouding to
the nature and Cauſe of the Suit thereof, in like Danner and
Fon as they ſhould, ought op migut have had of oz for Lands, Te
nements, oj other Hereditaments in ſuch Banner to be demanded:
And that Writs of Covenant and other" (Writs for Finęs to be le-
vied, and all other affurances to ve had, made of conveyed of any
ſuci) Parſonage, Vicarage, Portic:1, Penſion, op ochęć Profit called
Ecclefiaftical 02 Spiritual, as is afojelaid, mall be hereafter deviſed
and granted in the ſaid Chancery, according as hath been uſed foz
Fines to be levied and a furance to be had ou made, od conveyed, of
Lands, Tenements or other bereditaments : 9110 that all Judg:
mants to be given upon any of the ſaid wirits original ſo to bę
deviled or granted of oz foj any the Pżemiſſes, or any of them, and
all Fines to be levied and acknowledged in any of the King's ſaid
Courts thereof, ſhall be of like Force and Effea in the Law, to all
Intents and purpoſes, as judgments given and fines levied of
Lands, Tenements and hereditaments in the ſame Courts, upon
Writs Duginal therefoje duly purſued and profecuted, alheit no ſuch
forin of Writs Daiginal out of the ſaid Court of Chancery have
heretofole proceeded or been awarded.
Remedy
against Re-
Provided always, That this laft ad ſhall not ertend nor be er:
fufers of pounded to give any Remedy, Cauſe of Daioh od Suit in the Courts
Tithes ip the
Tem
Spiritual
A:
1
3
Courts.
Chap. LIH: The Complete Incumbent.
581
Cemporal again any Perſon od Perſons which
ſhall refuſe ou deny Suit To
to ſet out his a their Cithes, 02 which thall dcțain, withhold or re- Dites.
fule to pay his Tythes a Diferings, or any Parcel týercof: But
that in all ſuch Caſes the Perſon 02 Party being Ecclelạttiçal az
Lap-perſon, having catule to demand or have the lmdTythes od DE
ferings, and thereby wronged or grieved, thall take and have their
Remedy fol their faid Tythes o2 Dierings in every ſuch Caſe ilt
the Spiritual Courts, accoding to the Didinance in the firte Paët
of this ad mentioned, and not othericiſe ; any Thing herein ex-
pelled to the contrary thereof notwithfanding. S:at. 32 H. 8. c. 7.
Note, That this Statute doth only extend to Tithes and Offerings ; To what
under which are comprehended, as is fajd, all accuſtomary Payments Tithes the
for Marriages, Chriſtnings, Churchings and Burials, but not to other tends
.
Church-Duties, as Mortuaries, Penſions, Corodies, Proxics, O.C. there-
fore Lay-men have no Remedy for them in the Ecclefiaftical Court by
this Statute, not are the Clergy advantaged by it, by Appeals or Sen-
tences given, as in other Caſes, viz. Suits for Tithes and Oderings.
But according to the Lord Coke's Opinion, this Statute doth not only that it ex-
give Remedy in the Temporal Courts for Tithes, but for Penſions and tends to Pen-
other Eccleſiaſtical or Spiritụal Profit, where the Owner is diffeiſed, fions, fyr,
deforced, wronged or otherwiſe kept or put from the ſame, for that
Tithes or other Eccleſiaſtical Duties that came to the Crown, by the
Statutes of 27 H.8, 31 H.8. 37 H. 8. and . Ed. 6. are by: thoſe Statutes,
and this of 32 H. 8. and of 16 2 Ph.and Mariæ, in the Hands of Lay-
men Temporal Inheritances, and ſhall be accounted Aſſets, and Hus-
bands ſhall be Tenants by Curteſy, and Wives endowed of them, and
hall haye other Incidents belonging to Temporal Inheritances, only
that they retain this Eccleſiaſtical Quality, that the Owner of them
may fue for the Subſtraction of the ſame in the Eccleſiaſtical Court,
I luft. 159. a.
Note alſo, (though by this Statute the Appellant ſhall pay Coſts of Where a
Suit to the other Party) that it was ruled, that if Sentence be given as to Colts
in the Spiritual Court, and coſts taxcd, and the Defendant brings an taxed,
Appeal ; yet if the Suit did not appertain originally, or properly to
them, a Prohibition ſhall be awarded, as well to the Coſts as to the
principal Suit ; for that the Statuto is to take Place only, when the
Cauſe belongs properly to the Spiritual Court. Paſch. 7 Jac, Noy 137,
Accordingly the Caſe was, that A. Parſon of B. fued for Tithes in the
Eccleſiaſtical Court, and C, Rector of D. came in pro intereſe ſua
there, and ſaid, thąt the Lands for which Tithes are demanded were
within his Pariſh, upon which they were at Iſſue; and this þeing found
for him, Şentence was given for him, A. áppeals, 6c, and pending
the Appeal, Cofts were afſeffed againſt him in the firſt Court according
to this Ştatute, and Proceſs awarded againſt him. In this Cafe Ă.
(becauſe the Iſſue was triable only at Common Law) brought a Prohi-
bition to the firſt Court from which he had appealed. But becauſe na
Suit was there depending, for that he had removed it thence by Ap-
peal, a Conſultation was awarded, and held; that they might well
proceed for the Corts, but if he had not removed his Suit by Appeal,
à Prohibition had been maintainable for him as to the Costs, as well
as the Principal, tho' he was Party to the Libel. Pafch, 3? El. B.R
Tranſam's Cafe, 3 Croke 178. I Leonard 130,
Though
582
The Clergy-Man's Law: Or, Chap. LIII.
Fore.
Prohibition
upon a Suit
tuary, by
Suit fo2
Tho' in thc Recovery of Mortuaries, Penſions, Annuities, Proxies,
Nro:tuaries, &c. the Eccleſiaſtical Court is not aided by this Statute, as hath been
noted, yet theſe as other Church-Duties are recoverable in the ſaid
Mortuaries. Court, which appears as to Mortuaries, by Stat. 21 H. 8. c. 6. made
for the ſettling and ending Differences about Mortuaries, which fee
before in Chap. 52, but to the Prejudice rather than the Benefit of the
Clergy.
Anciently, viz. before the Stat. 21 H. 8. c. 6. was made, if Doubt
for a Mor- did arife, whether there was a Cuſtom in a Place to have ſuch Things
for a Mortuary, this was meerly tryable in the Spiritual Court by the
Biſhop of Statute of Articuli Cleri, which faith, That where a Suit is for a
Cbefter.
Mortuary, Prohibition Chall not be granted, Fitzh. Nat. Brev. 51
53. 10 H. 4. 2 & 13 Ri. 2. Juriſd. 20. Kelleway fol. 110. And
when a Prohibition was granted, becauſe the Biſhop of Cheſter fued in
the Conſiſtory of Cheſter before the Commiſſary there, after the Death
of a Prieſt of the ſaid Diocefc, furmiſing, that by Cuſtom there, he
ought to have for a Mortuary, after the Death of every Prieſt dying
within the Archdeaconry of Cheſter, his beſt Horſe, or Mare, Bridle,
Saddle, Spurs, his beſt Ġown or Cloak, his beſt Hat, his beſt upper
Garment under his Gown, his 'Tippet, his Signet or Ring, as due to
him the ſaid Biſhop, and recites the Statute 2 1 H. 8. concerning Mor-
tuaries. And the Plaintiff averr’d that there is no ſuch Cuſtom there,
and that ſhe had paid a Mortuary to the Parſon of Bumbery; Fories
and Whitlock were of Opinion, that a Prohibition ought not to be
granted, and that it is not now grantable upon the Statute 21 H. 8.
by reaſon that by the Proviſo therein, Mortuaries fhall be paid in the
Archdeaconry of Cheſter as before they have been accuſtomed, and ſo
is out of the Statute, therefore the Cuſtom is triable in the Court
Chriſtian ; yet becauſe Richardſon and Croke held the contrary, ciz.
that the Surmiſe to have a Prohibition was good, viz. that there is no
ſuch Cuſtom, and that it may be well tried at Common Law, for
that the Statute appoints now what Mortuaries ſhall be paid, and that
in the Archdeaconry of Cheſter, &c. ſuch Mortuaries ſhall be paid as
have been accuſtomed, which they ſaid is iſſuable and triable at Com-
mon Law, eſpecially as this Caſe is, the Plaintiff ſurmiſing, that ſhe
paid the Mortuary to the Parſon of her Pariſh, and that there is no
ſuch Cuſtom that the ſhould pay it to the Defendant; therefore it was
appointed that the Defendant thould plead or demur, and then the
Court would give Judgment upon the Record before them. Mich. 7
Car. B. R. Margaret Hind and Epifcopus Ceftria, 1 Croke 237. So
if any one be drawn into the Spiritual Court for any Matter contrary
to the ſaid Statute, a Prohibition lies, as was refolved in 16 Eliz.
Mich. 31 32 Eliz. B. R. White's Cafe. 3 Croke 151.
So a Prohibition was moved for, where a Vicar fued one in the Spi-
tuaries were ritual Court for a Mortuary, ſuggeſting that it was not due by Cu-
by the Sta- ftom to the Vicar, but to the Impropriator, and that he had paid it to
the Impropriator, and that the Statute 21 H. 8. had taken away all
Mortuaries, but only where they were payable by Cuſtom, and that
Cuftom is to be tried at the Common Law, not in the Eccleſiaſtical
Court. But the Court refuſed to grant a Prohibition, and ſaid, that
the Spiritual Court may hold Plea of Mortuaries, notwithſtanding this
Statute, for the Statute only takes away ſuch as were not due by Cu-
ſtom ; but here 'tis agreed that it is due by Cuſtom; but they differ
What Mor-
tutc.
3
only
Chap. LIII. The Complete Incumbent. 583
co
be in Wales
on the Sta.
only in the Perſon to whom it ſhall be paid; and by Keeling and Suit foz
Windham Juſtices, the Statute enacts nothing de Novo, but leaves Mor-
moztuaries,
tuaries to be paid as formerly ; and they being originally fuable in the
Spiritual Court, the incident Queſtion here of Property, ſhall not al-
ter the Juriſdiction; and they ſaid, that a Mortuary was due of com-
mon Right at Common Law, without any Cuſtom, and that a Mor-
tuary at Common Law was Secund ummelius animal, after the Lord's
Heriot paid. Trin. 17 Car. 2. B. R. Mark v. Guillert. i Siderfin
263, fame Caſe. Keeble 919. Alſo a Prohibition was prayed to the
Arches in a Suit there by Appeal, but begun in Landaft
, where a Vi-
car libelled, that after Debts and Legacies paid he ought to have a
Mortuary, but did not lay any Cuſtom, becauſe Wales and Chefter are
excepted out of the Statute, and the Suggeſtion to have the Probibi-
tion was, that no Mortuary hath been uſed to be paid there, which
Plea was refuſed by the Spiritual Court; but it appears not what was
done in this Cafe, only 'tis faid, that the Court inclined, that no Suit
can be in Wales on the Statute. Mich. 24 Car. 2. B. R. John and
Loid. 3 Keeble 75. And it is ſaid, that if a Suit be commenced for Ifa Suit may
a Mortuary in the Spiritual Court, no Prohibition ſhall be granted to
ſtay their Proceedings, unleſs they proceed contrary to the Statute ; tute.
Parfon's Counſellor 359. But the Court granted a Prohibition Nili,
upon Suggeſtion that there was no ſuch Cuſtom, and that the Court
below had refuſed that Plea, Mich. 23 Car. 2. B. R. 2 Keeble' 835.
So the Cuſtom for paying any Mortuary being denied, and that Mat-
ter ſuggeſted to the Court in order to obtain a Prohibition, it was
faid by the Court, that Prohibitions have been granted, and alſo de-
nied upon the like Suggeſtions, and therefore ordered that the Defen-
dant ſhould take a Declaration in a Prohibition as to a Mortuary, and
to try the Cuſtom at Law. Mich. i W. & M. B. R. Proud y. Piper
3 Modern Rep. 268.
By the Opinion of the Lord Coke, no Mortuary is due by Law, If a Mortua-
but only by Cuſtom, which he ſays is proved by the Words of the Sta- ry is due by
tute of Circumſpecte agatis, which are, ubi Mortuarium dare conſuevit, a Cuftom.
&c, 2 Inft. 491, the conſtant Courſe of Pleading in caſe of Mortuaries
claiming them always to be due by Cuſtom, ſhews it always to be fo.
10 H. 4. 1. 7 H. 6. 26. 16 H. 7. 5. And this Opinion ſeems to be
ſtill further confirmed by Linwood in his Glofs upon the Canon made
by Simon Langhain, which Canon is only a Confirmation and Expla-
nation of one before made by Robert Winchelſey, where by the ſaid
Canon the Reaſon of the Payment of Mortuaries is declared to be,
as a Recompence to the Pariſh Church for the perſonal Tithes and
Oblations not only paid by the deceaſed Party in his Life-time: There-
fore Linwood ſays, where no Perſonal Tithes and Oblations have been
fubſtracted, but duly paid, the Second beſt Beaſt, (being the Mortuary
directed to be paid by Canon) is not due by that Canon, but the Cu-
ſtom of the Place in ſuch Caſe is to be reſpected ; by which words,
he ſeems to refer the Payment of Mortuaries, not within the Reaſon of
the Canon, to Cuſtom only. Linw. de Conſuetudine, c. Statutam v. Sub-
tračtionis. Mr. Selden tells us, that the Uſage anciently was (accord-
ing to the Canons) to bring the Mortuary along with the Corps, when
it came to be buried, and to offer it to the Church as a Satisfaction for
the ſuppoſed Negligence and Omiſſion the Defunct had been guilty of
in not paying his perfonal Tithes ; and from thence it was called a
Corſe-prefent. Selden Hiſtory of Tithes 287.
ز
It
584 The Clerg y-Man's Law::Or, Chap. LIII.
Suit foz
Penſions,
EDC.
of Debt will
lic for the
Aid as to
It hath been alſo held, that ſuch a Right was veſted in the Parfon
to have the Second beſt Beaſt for a Mortuary, (where by Cuſtom it
was due) that he might ſeize it where-ever he could find it. 7 H. 6.
If an A&ion 26. 16 H. 7. 5. And it is faid by ſome, that ſince the Statute 21 H.
8. c. 6, whereby Mortuaries are reduced to a Certainty to be paid in
Moncy. Money, that an Aation of Debt will lie upon the ſaid Statute in the
Courts of Common Law, for Recovery of the Sum due for a Mor-
tuary, although before that Statute Mortuaries were only recoverable
in the Spiritual Courts ; for although the Statute be only in the Ne-
gative, yet it implies an Affirmative, that thoſe Rates ſet down in the
Statute may be taken where by Cuſtom Mortuaries are due, ſo that
the Statute has made it a Duty fixed in the Party, and
then by conſc-
quence the Law will give a proper Remedy for the Recovery of it.
See Parſon's Councellor 359. “But as I have never heard of any ſuch
Action of Debt brought for a Mortuary, ſo I very much doubt whe-
ther ſuch Action is maintainable, and rather think that it is not, but
that it ſtill remains as a Matter ſuable for only in the Spiritual Court.
See 5 Coke, de Jure Regis Eccleſiaſtico fol. 40. If any Parſon, Vi-
car, &c. ſhall demand and take for a Mortuary more than is allow-
ed by the Statutc, or ſhall convent any Perſon before any Eccleſiaſti-
cal Judge to recover the ſame, he ſhall forfeit ſo much in Value as
he
ſhall take more than is by the Statute limited, and Forty Shillings
more to the Party grieved, which ſhall be recovered by Action of
Debt. See Coke's Entries 164, ſuch an Action brought.
As to Penſions, Portions, Synodals, &c. though the Court. Chriſtian
Penſions,
is not aided by the aforeſaid Statute of the 32 H. 8. yet as to ſuch
Portions, Soc.
of them which were ſaved to Eccleſiaſticks by the Stat. 31 H. 8. C. 13.
viz. from the King, and Lay Poſſeſſors, the faid Court is aided by the
Stat. 34 a 35 H. 8. c. 19.
Upon a Li Note, That though the Portions, Penſions, &c. belonging to Eccle-
bcì for a
ſiaſticks, were faved to them by a Saving in Stat. 31 H. 8. yet there
was no Remedy for them in the Spiritual Court until this Statute,
which recites the Miſchief, and gave Juriſdiction to the Ordinary, as
'tis ſaid in Roper and Balbroke's Cafe. Pafch. 7. Jac. C. B. Noy 149.
And if a Perſon aided by this Statute libcls in the Eccleſiaſtical Court
for a Penſion, &c. which was never demanded by him, although the
Statute faith, that where it is wilfully denied, the Party ſhall be ſued
in the Eccleſiaſtical Court, yet no Prohibition ſhall be granted for
that Cauſe, for that the Suit appertains originally to that Court. Hill.
6 Jac. B. R. between Bulbroke and Bridges, per Cur. Roll's 2 Abr.
Note, That this Statute gives Remedy only for Penſions, and other
Penſions,&c. Dues that did ariſe out of Lands, &c. which came to the Crown by
gives Renie- the Statute of Diſſolutions; and therefore Damages and Coſts are not
to be had by the Aid thereof, upon Suits for other Penſions, &c. And
it gives Relief only for ſuch Payments, of which Biſhops and other
Spiritual Perſons were in Poſſeſſion, at or within Ten Years next be-
fore the Diſſolution of the Houſe to which the Thing belonged, by
reaſon of which the Duty is demanded; wherefore, ſuch Duties
which have not been uſually paid within Memory, are not now reco-
verable, unleſs by the general Saving in Stat. 31 H. 8. c. 17, by Eng-
liſh Bill in the Exchequer, or Chancery: (Quære.) But if they have
been uſually paid, it will then be preſumed, that they were due and
Penſion
which was
never de-
inanded.
300. Nu. 8.
For what
the Statute
dy.
4
paid
Chap. LIII. The Complete Incumbent.
585
the Stat.
paid at the Time of the Diſſolution, and ſo are recoverable with Suit for
Coſts and Damages by this Statute ; whence it follows, that Biſhops, etc.
PenGons,
&c. are not relieved by the Statute upon a Title fhewed by Deed on-
ly, without Preſcription.
And for other Penſions, and ſuch like Duties not ſaved by this Penſions, etc.
Statute, but due commonly from Ecclefiaftical Perſons, they are al- not ſaved by
ſo recoverable in the Spiritual Court : And though the Libel fhews,
how that Tam per realem compofitionem quam per antiquam
laudabilem conſuetudinem, ipfe s predeceſores fui habuerunt ha-
bere conſueveruint annualem penfionem, &c. and ſo, as was urged,
the Penſion is demanded upon Temporal Grounds, &c. Preſcrip-
tion and real Compoſition ; yet Coke and the reſt of the Juſtices
held, that a Prohibition ought not to be granted, for that the
Party had Election to ſue for the ſame in the Spiritual Court, or
at the Common Law, both the Parties being Spiritual Perſons.
But they further ſaid, that if the Party ſueth once at Common
Law for a Penſion, and ſhall after fue in the Spiritual Court for
the ſame, a Prohibition lies, becauſe by the firſt Suit he hath de-
termined his Election. Trin. 10 7ac. C. B. Sprat and Nicholſon.
Godbolt. Trin. 41 Eliz. B. R. Collier's Cafe. *3 Croke 675. And
Popham and Fenner ſaid, that there would be a Differertce where
the Ordinary ordains a Payment as Judge, as in the Endowment of
a Vicar
there ſhall the Suit be in the Spiritual Court, and where
the Patron and Ordinary make a Grant in the Time of Vacation,
for there they charge as an Intereſt, and Gaudy ſaid, that for ſuch
a Penſion, Suit may be either in the Temporal or Spiritual Court.
Trin. 41 Eliz. B. Ř. Collier's Cafe. 3 Croke 675. 20 H. 6. fol. 17.
19 Ed. 3. Juriſdi&t. 28. See more of this Matter in Chap. 57.
If a Suit be to be brought for a Penſion, or other Thing due out when -
of a Parſonage, &c. it ſeems the Occupier, though a Tenant, ought Occupier or
to be ſued ; and if Part of the Rectory be in the Hand of the Owner, Tenant.
and Part in the Occupation of a Tenant, the Suit is to be againſt
them both. Mich. 25 & 26 Eliz. C. B. Sutton and Bowfet's Cafe.
i Leonard 11.
;
ز
Rrrr
CHAP
586
The Clergy-Man's Law: Or, Chap. LIV.
Serting out
Tithes, soc.
CHA P. LIV.
Vide Chap.ss. Statute 32 H. 8. and 2 & 3 Ed. 6. for the
Payment of Tithes: What ſhall be a ſuf-
ficient ſetting forth of Tithës: Double or
treble Value for not ſetting forth Tithes,
in what Courts to be ſued for.
2 & 3 Ed. 6. HE Statutes nientioned in the former Chapter not being thought
cap. 13. fur-
ſufficient to enforce the Payment of Church Duties, and to
ther to cn-
force Pay- fupport the Ecclefiaftical Courts in the Recovery of them, it was fur-
ment of ther enacted; where in the Parliament holden at Weſtminſter the
Church Du-
ties, @goo.
Fourth Day of February, in the Twenty ſeventh Year of the Reign of
the late king of moſt famous memory, King Henry the Eighth, there
was an d& made concerning Payinent of Cythes Predial and Per-
ſonal: and alſo in another Parliament holden at Weſtminſter the Four
and twentieth Day of July, in the Two and thirtieth Year of the
Keign of the ſaid King Henry the Eighth, another at made concerni-
ing true Payment of Tythes and Dfferings; in which ſeveral aas
many and divers Things be omitted and left out, which were con-
venient and very neceffary to be added to the ſame : In Confidera-
tion whereof, and to the Intent the ſaid Tythes may be hereafter truly
paid, accožding to the Mind of the makers of the ſaid aas, be it
oldained and enađed by the King our Sovereign Lojd, with the ac:
fent of the Loads Spiritual and Temporal, and the Commons in
this preſent Parliament aſſembled, and by the authojity of the ſame,
That not only the ſaid a&s, made in the ſaid Seven and twentieth
and Two and thirtieth Years of the Reign of the ſaid King Henry
the Eighth, concerning true Payment of Cythes, and every article
and Branch therein contained, fhall abide and ſtand in their full
Strength and Wertue; but alſo be it further enaĉed by the Authority
of this preſent Parliament, That every of the King's Subje&s fall
from hencefožth truly and juſtly, without fraud od Guile, divide, let
out, yield and pay all manner of their Predial Tithes in their pļo-
per Kind, as they riſe and happen, in ſuch Danner and Fouin as
hath of Right been yielded and paid within Forty Years nert before
the making of this aa, ol of Right 02 Cuſtom ought to have been
paid : and that 110 Perion ſhall from hencefouth take or carry away
any ſuch ou like Tythes, which have been yielded on paid within the
ſaid forty years, or of Right ougljt to have been paid, in the Place
od Places tytheavle of the ſame, befoje he yati, juſtly divided or ſet
fuqth fou the Tythe thereof the Tenth Part of the ſame, oj other-
fviſe agreed for the ſame Tythes with the Parſon, Uicar, or other
Dwner, Propyjetoz oj fermoz of the ſame Tithes, under the pain of
Fözfeitute of treble Ualtie of the Tythes ſo taken and carried
a way.
1
and
Chap. LIV. - The Complete Incumbent. 587
Tithes ſer
OUC.
and be it alſo enađed by the authority aforeſaid, That at all Times Setting out
whenloever, and as often as the ſaid Predial Tithes ſhall be due at Tithes, &c.
the Tything-time of the ſame, it to be lawful to every Party to Liberty to
whom any of the Tythes ought to be paid, or his Deputy ou Ser: ſee the
vant, to view and ſee their laid Cythes to be juſtly and truly ſet fožth
and ſevered from the Nine Parts, and the ſame quietly to take and
carry away, and if any perſon carry away his Coin oz yay, od his
other Predial Tythes, beføje tie Tythe tjereof be ſet forth, oz wil-
lingly withdraw his Cythes of the ſame, oy of ſuch other Things
whereof Puedial Tythes ought to be paid ; ou do ſtop oj let the Par.
ron, Uicar, Poppietoa, Dwner, 02 other their Deputies or fer:
mois, to view, take, and carry away their Tythes as is abovelaid,
reaſon whereof tøe ſaid Tythe o2 Tenth is loff, iinpaired od hurt,
that then upon due P20of thereof made befoje tbe Spiritual Judge,
02 any other Judge to whom heretofore he inight yave made Com
plaint, the Party ſo carrying away, withdzawing, letting ou ftop-
ping, ſhall pay the double Ualue of the Tenths of Tythe (o taken,
loft, withdjawni oj carried away, over and beſides the Colts, Char-
ges and Expences of the Suit in the ſame: The ſame to be recover-
ed befove the Ecclefiaftical Judge, accouding to the King's Ecclefiafti:
cal Laws. Stat. 2 & 3 Ed. 6. C. 13.
As to this Statute of the 2 & 3 Ed. 6. in general, this is to be This Statute
noted, That it hath been uſually miſrecited, viz. thus, That on the ofren mifre-
4th of November, 2 Ed. 6. it was enacted, Whereas the Parliament cited, yet
commenced 1 Ed. 6. and continued by Prorogation until the 4th of
November, 2 Ed. 6. But this Miſtake and Variance being nioved in
Arreſt of Judgment, it was not allowed, for that the Precedents were
all in the fame Manner, and in reſpect of the continual Uſe in the
ſame Form, as the Plaintiff had declared; the Court ſaid, they would
not alter it, for that was to diſturb all the Judgments that were ever
given upon it in that Court. Paſch. 6. Jac. Oliver v. Collins, Brown-
low and Gouldsborough, Ip. 100. Mich. 1 & 2 Eliz. B. R. Delles v.
Sanderſon, Dyer 171. Paſch. 18 Car. 2. B. R. Owen v. Evans, 2
Keble 327, yet where the Plaintiff by his Declaration recited this Sta-
tute to be made ad November, Anno 2 & 3 Ed. 6. after the Verdict
the Judgment was arreſted, becauſe the ſame Day could not be in
Two Years of the ſaid King. Mich. 33 & 34 Eliz. Langley v. Haines,
allowed.
Moor 302.
dial Tithes..
Secondly note, That the Two Clauſes of this Statute before men. It extends
tioned do only extend to predial Tithes, not to mix'd Tithes, as Wool, only to Pre-
Lamb, &c. or ſmall Tithes. i Brownlow and Gouldsborough, 31.
Therefore when a Plaintiff declared for Predial Tithes (for which he
might well bring his Action) and for other Tithes alſo, as of
Wool and Lamb (for which no Action did lie,) and upon Trial,
the Jury found for all for the Plaintiff, viz. as well for thoſe
for which the Action was well brought, as for thoſe for which
no Action would lie on this Statute; and after Verdict this Exception
was taken, and the Judgment thereupon arreſted, Trin. 8 Jac. Pain
v. Nichols, i Brownlow and Gouldsborough 65, and what Tithes are
held to be predial hath been already ſhew'd, Chap. 49.
Thirdly note, That it hath been held, that this Statute gives Re- It extcr.ds
medy, as well to the Laity as Clergy, by the Equity thereof, though also to the
Laity.
not exprefly, and to the Farmers of both. Paſch. 3 7ac. C. B. Dag
and Kent v. Penkeron, 2 Croke 70. Hill. 14 Eliz. Moor p. 710. Trin.
Rrrr 2
44 Eliz.
588
The Clergy-Man's Law: Or, Chap. LIV.
Setting out 44 Eliz. Day y. Peckvell, Moor 915. Note alſo, that this Statute
Fithe, Esco, obligeth every one to ſet forth his Predial Tithes; therefore if a Par-
ſon hath appointed one to collect his Tithes, and he doth Licence a
Pariſhioner to carry away his Com without ſetting forth the Tithe,
this Licence is void, and will not ſerve to juftifie the Neglect of fet
ting the Tithe forth; per Curiam, Trin. 7. 7ac. B. R. Brickindon v.
Denwood, Noy 134. But if ſeveral Perſons have Right to the Tithes
of a Pariſh, to be divided amongſt them, the Pariſhioners by this Sta-
tute are only bound to ſet forth the Tenth as is uſual, and not to di-
vide the Tenth again in 'Two or more Parts, according to the Right
of the ſeveral Owners; and ſo it was adjudged, when Five Perions
joined in an Action of Debt upon this Statute, Stileman v. Cromer,
Latch 228. So though a Pariſhioner be bound de Jure to reap or
cut his Corn, Hay, doc. and further by this Statute to ſet forth the
Tithes; yet having duly ſet them forth, he is not bound to watch or
guard them from being ſtolen or eaten; but the Parſon is bound to
carry them away in convenient Time ; and if through his Neglect to
carry them away, the Tithes be loſt or eaten with Cattle, he ſhall not
have Tithes again, and if that he fues the Pariſhioners (who fet them
forth once duly) in the Spiritual Court, and he doth offer that Matter
by Way of Plea there, and they in the ſaid Court will not allow
thereof; a Prohibition lies. Trin. 30. Eliz. B. R. Bennet and Short-
wright's Caſe, 2 Leonard 101. Hill. 15 Jac. C. B. Bridgman's Cafe
,
Noy 31. Note alſo, that this Statute of 2 Ed. 6. is an Act of Addition,
as by the Words thereof appcar, 2 Inft. 648. Alſo thefo Words, [aś
bath been of Right yielded,] are to be intended of Tithes to be yield-
ed in Spccic within Forty Years, and the Senſe of the Words (O2 of
Right or Cutom] is, or by rightful Cuſtom de modo Decimandi ought
to have been paid, 2 Inft. 650.
By the Words of this Statute, cvery of the King's fubjects ſhall truly
Tithes may and juſtly, without Fraud or Guile, divide, ſet out, yield, and
be preſent.
pay,
&c. his Tithes; ſo that the Owner of the Land, not the owner of the
Tithes, by Law is bound to ſet the Tithes out, yet it is lawful for
the Owner of the Tithes (by Force of this Statute) to be preſent to
fee that his Tithes be duly ſet out.
Tithes frau If one ſets forth his Tithes, and takes them away again after he
dulently ſet hath fet them forth, an Action lies againſt him for treble Damages,
forth, c.
for ſuch fraudulent ſetting forth, is as no ſetting forth within the In-
tent and Meaning of this Statute, although that the Clauſe for treble
Damages ſpeak nothing of Fraud. Hill. 7 Jac. B. R. Ford v. Ponii-
roy', Noy 126, fame Cafe, 2 Brownlow and Gouldsborough 9 Hill. 5
Fac. C. B. Rocheſter v. Porter, Noy 152. Trin. 30. Eliz. Bennet and
Shortwright's Cafe, 2 Leonard 101. Hele and Fretendon's Cafe,
Brownlow and Gouldsborough 1 p. 34. 2 Inft. 649. So if he fells his
Grain on the Land, and after by Command of the Vendee takes away
the Corn, being fevered, without ſetting forth the Tithe, the Parfon
may ſue him upon the Statute, and ſhall not be compelled to ſue the
Vendee, who may be unknown, and becauſe 'twas done to defraud.
44 Eliz. B. R. Baker's Caſe, vouched in Rocheſter and Porter's
Caſe, Noy 152. Hele and Fretendon's Cafe, Brownioco and Gouldsbo-
rough 34, and in Sprat and Heale's Cafe, 13 Coke 23. 2 Inft. 649.
forth, but
So when a Parithoner ſet forth his Tithes, and hindred the Parſon
from carrying them away, and the Parſon libelled for the Tithes in
them away.' the Spiritual Court upon this Statute; and the Defendant furmiſed,
Owner ofthe
Titles ſet
Parſon hin-
died to carry
3
that
Chap. LIV
40
. The Complete Incumbent 589
that he did not hinder him from having of his Tithes, but that he De fetting
did hinder him from coming for them one way (which was the uſual our Tithes.
Way,) but that he might come for them another Way; it was agreed,
that this Hindring of the Parſon to carry away his 'Tithes made the
Setting of them forth fraudulent, and no good and fufficiënt Setting of
them forth according to the Statute, by which it ought to be effectual;
and the whole Court held, that his Surmiſe made as to the Way
was not material. i Bulftrode 108. And if the Parſon's Way in ſuch
Caſe be ftopp'd, he may ſue thereupon in the Spiritual Court for the
Tithes upon the Statute, or only for ſtopping the Way; and if the
Queſtion bė; Whether the Way was ſtopp'd er not? And the Spiritual
Court will not allow the Defendant's Proof, hé ought to appeal, and
not to have a Prohibition thereupon. Trin. 43 Eliz. C. B: Blackiiell's
Cafe, 3 Gröke 843. But Quære, às to the Penying of the Proofs in
ſuch Café by the Spiritual Court; för although it is to be admitted
that where the Spiritual Court hath À proper Juriſdiction of the prin-
cipal Matter, and another collateral Matter depending thereupon of
Temporal Cognizance, is alſo neceffáry to be determined in adjudging
upón
ſuch principal Matter, there the Spiritual Court Thalí deter-
mine ſuch incident temporal Matter, as a Thing without which the
other cannot effectually be determined ; yet in ſuch ſuch Caſe, the
Spiritual Court ought to try ſuch temporal Matter according to the
Rules of the Common Law to which it doth properly belong, and not
by the Rules of the Canon ór Civil Law, elſe they ſhall be prohibit-
ed: So in this Cafe, though the Spiritual Court might try whether thie
Way was ſtopp'd or not, yet Stoppage of Ways being Matter properly
triable at Common Law, and only allowed to the Spiritual Court in
this Caſe to be tried, as a Thing depending upon, and neceſſary to the
Parſon's having and carrying away his Tithes, yet I conceive they
ougt to proceed in Trial thereof, according to the Rules of Common
Law, and to allow of fuch Proofs as by that Law are allowable, elfe
they ſhall be prohibited: See for this Matter: Trin. 4 Jac. B. R:
Armiger Brown v. Wentworth, Yelverton 93. Mich. 16 Ťac. Wats 8.
Conisby, Hobart 347. Hill 27. Car. 2. Richardſon v. Disborough, į
Keble 570. Trin. 2 W. & M. B. R. Shorter v. Friend & Usor', 3 Mod.
Rep. 283. See more concerning this Matter, Chap. 27.
If thé Queſtion be, Which of Two Ways is the uſual and cuſtomary Ifa Queſtion
Way? This ſhall be tried in the Court Chriſtian, who have Cogni-
ing Ways:
zance of Ways for carrying of 'Tithes. Hill. 6. Car. B. R. Halſey v.
Halſey, Jones 230. Mich. 14 Jac. B. R. Reynold and Necibery, Roll's
fame Action, if the Tithes be not fet forth. And when it was object-
ed, that when the Owner of the Corn divides the l'ithes from the
Nine Parts, they become Lay-Chåttels, and that for the taking there-
of an Action at the Common Law lies by Treſpaſs or Detinue; and If he that
therefore that there is not any Cauſe of Suit for them üpon this
Statute in the Spiritual Court; and that a Prohibition liés, if there be. taiñ rhéna,
Gaudy and Popham fàid, that á Suit is well maintainable in the ſaid
Court againſt the Party himſelf that ſet forth the Tithes, if he detains
them, although the Pårfón, if he would, might have his Reinedy a
Common Law, and that the Statuté of 32 H. 8. cap. 9. proves it, for
the Words thereof bé, [€ aliy do not let out, oj do détain or with:
hold his Tythes,] (which is to be intended after they be ſet out) he
ſhall be fucd in the Court Chriſtian, for otherwiſe Miſchief would én-
fue to the Parfon, in that the Owner might ſecretly ſet forth his
Tithes,
be concern-
fets forth the
Tithes de-
590
The Clergy-Man's Law: Or, Chap. LIV.
out Tithes.
carry them
32
If after the
vered.
De letting Tithes, ſo that the Parfon ſhould not know thereof, and afterwards
them away. Paſch. 40 Eliz. B. R. Leigh. v. Wood, 3 Croke 607.
fame Cafe, Moor 912. Trin. 44 Eliz. B. R. Sprat and Heals's Café,
13 Coke 23. Trin. 43. Eliz. C. B. Blackwell's Caſe, 3 Croke 843. Not
only the Owner of the Corn may be ſued in the Spiritual Court, if he
carries away the Corn before the Tithes be ſet forth, but alſo if a
Stranger carry it away before the Tithes ſevered, and that upon this
Statute, Mich. 11 Jac. B. R. Kipping v. Swain, 2 Croke 324, fame
Caſe, i Brownlow 123, and ſo it was at the Common Law before the
Statute of H. 8. For if Tithes were ſet out; and after carried away
by the Owner of the Land, the Rector might either ſue in the Spiri-
tual Court for the Tithes, or bring an Action of Treſpaſs at Common
Law. 10 H. 4. 2.
But after the Tithes be duly ſet forth by the Owner, viz. fevered
Tithes be fe- from the Nine Parts, if a Stranger takes them away, the Parſon (who
in ſuch Cafe may not fue the Owner) may ſue the Stranger at the
Common Law only. Paſch. 43 Eliz. B. R. Web. y. Pets, Noy 443
and not in the Spiritual Court, Mich. 30 & 40 Eliz. B. R. Leigh v.
Wood, Moor 912, fame Cafe, 3 Croke 607. 4 Leonard 7. Cliff v. Dud-
ney, 2 Keb. 846. And at the Common Law, in this Cafe (though he
may not fue for treble Damages upon the Statute) he may have his
Action of 'Treſpaſs, for that the Tithes immediately upon the ſetting
forth are in the Poſſeſſion of the Parſon; and by the Statute of 31 H.
8. c. 7, he may have an Eje&tione firma, which Action of Eječtione
firma will (I ſuppoſe) lie for ſmall Tithes as well as for great "Tithes;
but an Action of Account will not lie in this Cafe. Mich. 14 & 15
Eliz. Totenham v. Beding field, Owen 35. Mich. 14 Car. 2. Berry v.
If a Stranger Wheeler, i Siderfin 92. But all this is to be underſtood in caſe the
Tithes be ſet forth by the owner of the Corn; for if the Tithes
be ſet forth by a meer Stranger, this doth not ſettle any Property in
the Parſon, ſo that he may have his Action of Trefpafs &c. for taking
of them away; and I conceive he may ſue the Owner for the Tithe in
fuch Cafe upon this Statute, either in the Temporal or Spiritual Court,
for that a Stranger ſetting forth the Tithe, is as no Setting forth of
the Tithe in Law. But if one, who hath no Colour of Title, ſows
the Land, and fets forth the Tithes, by this he is a Diffeiſor, yet this
is a good Setting forth of the Tithes for the Parſon, and puts the Par-
ſon in Poſſeſſion of them; and if ſuch Perſon that fo fets them forth
carries them away, he may be ſued for them upon the Statute; and if
the true Owner of the Land, or other Stranger, carries them away
after they are ſet out, an Action of Treſpaſs lies againſt them. Hill
.
i Car. Mountford v. Sedley, Fones 89, the fame in 9 Bulſtr. 336. And
ſo it is ſaid by Jones Juſtice to have been adjudged, that if one cuts
the Corn, and another carries it away, an Action of Treſpaſs lieth
againſt either of them, and ſo againſt a Servant. Pafch. 15 Car.
March 22.
If the Tithes be ſet forth by the owner of the Land, and another
having no Parfon or Vicar that hath no Right to have them, carrries them away,
Right car- claiming them in the Right of his Church, the Parſon or Vicar that
ſuppoſeth himſelf to be injured, may ſue the Parſon or Vicar, who
carried them away in the Spiritual "Court, and no Prohibition ſhall
be granted; for that the Suit is proper there, when the Right of the
Tithes comes in Queſtion betwixt Spiritual Perſons, by the Statute of
Circumſpecte agatis, made 13 E. 1. c. I. and if Treſpaſs be brought in
3
ſuch
Tithes.
1
If a Parfon
ries them
away.
Chap. LIV. The Complete Incumbent.
591
out Tithes.
I
60, 31 H. 6. 11. And the Law in this Cafe holds not only between Par-
fuch Caſe, the Defendant, as is ſaid by ſome Books, may plead to the De fetting
Juriſdiction of the Court, 38 E. 3: 6.6 E.4. 3. 23 É, 4: 23, 24. Paſch.
29 C. B. the Parfon of Tackman's Caſe, i Leonard 58. 35 H. 6. 39.
Bro. tit. Juriſd. 3. Mich. 11 Jac. B. R. 2 Bulſtr. 157. Mich. 5 Fac.
Roll's 2 Abr. 310. nu. 1. Trin. 11 Jac. B. R. per Cur. ibid. nu. 2.
& Mich. 14 Fac. Adams and Sir John Varafor v. Hubertjon, ibid.
nu. 4. Mich, 28 & 29. Eliz. between the Vicar of Pancridge and Buf-
Sey, ibid. nu. 6. and Godbolt
. Trin. 31 Eliz. Botham v. Cooper 3
Crook 136. Mich. 29 & 30 Eliz. B. R. Sawel v. ll'ood, 3 Croke 71.
and i Leonard 94. Trin. 30 Eliz. B. R. Gatehouſe and Penn's Caſe.
Leon. 128. Paſch. 2 7ac. C. B. Randal againſt Knolls, Noy 147.
And if the Leſſee or Farmer of one Parſon takes away the Tithes, be-
ing fevered from the Nine Parts, fuppoſed to belong to another Spiri-
tual Perſon, and Treſpaſs be brought, though it hath been a Queſtion,
whether he may juſtifie by a Leaſe of the Tithes made to him by an-
other Parſon, and the Court ſhall be ouſted of the Juriſdiction, the
Farmer being a Lay-man, 20 H. 6. 17. Br. Juriſdi&7. 86. Trin. Fac.
B. R. per Cur. Roll's 2 Abr. 3.10. nil. 2, yet this Doubt hath been re-
folved in the Affirmative, Hill. 43 El. Benefield and Feek, Gouldsbo-
rough 149. Roll's 2 Abr. 310. nu. 5. And the Law is the fanie, if
the Tithe ſet forth be taken away by the Servant of another
Parſon; by Richardſon, Mich. 3. Car. C. B. Comin's Cafe, Hetley
fons and Vicars that have Cure of Souls, actually, but alſo to other
Spiritual Perſons, as between Appropriators that have it only habitu-
ally, or between an Appropriator, and one that hath a Bencfice with
Cure, and with their Farmers and Servants. Hill. 43 Eliz. Benefield
and Feek, Gouldsborough 149.
And it ſeems, this holds alſo between an Impropriator and another Between pat-
Parſon or Vicar, though the Tithes belonginging to ſuch are a Lay- car, where
Fee, and the Impropriator a Lay-Man ; for if the Bounds of a Pariſh the Parſon is
come in Queſtion in the Spiritual Court, in a Suit between the Parfon a Lay-Man,
Impropriate and the Vicar of the fame Pariſh, as if the Vicar claims fonageappro-
all the Tithes within the Hamlet of D. within a Pariſh, and the priate a Lay-
Parfon all the Títhes within the Reſidue of the Pariſh; and the Que-
ſtion betwixt them is, Whetlier certain Lands whereof the Vicar claims
the Tithes, be within the Hamilct of D. or not? Yet becauſe this is
between Spiritual Perſons, viz. between the Parſon and Vicar, al-
though that the Parfon be a Lay-Man, and the Parfonage appropri-
ate a Lay-Fee, yet this ſhall be tricd in the Spiritual Court; and no
Prohibition granted. Hill. 15 Car: B: R. between Ives and Wright,
per Cwr. Roll's 2 Abr. 312. nu. 7. Hill. 43 Eliz. Benefild and Feek,
Gouldsborough 142. Roll's 2 Abr. 310. 1.11. 5. . Yet an Action of Tref
paſs was brought by a Parfon againſt liis Vicar for taking of Tithes;
and on the general Iſſue, the Jury gave a fpecial Verdict, and 'twas
adjudged for the Vicar. Irin. 36 Eliz. C. B. Kigham v. Beaſt, Owen 58.
After the Tithes are duly fet forth, he to whom thcy belong
is bound in convenient Time to carry them away, otherwiſe the Owner Action for
of the Land may have his Action of the Cafe againſt him for ſuch not carrying
Neglect. Hill. 15 Car. C. B. Doctor Bridgian's Cafe, Nov 31. Hill.
I Car. Mounford. V. Sedley, 3 Bulftrode 336. Trin. 21. Jac. Bi R.
Wiſeman and Derham's Cafe, Godbolt 320. But then the plaintiff to
maintain ſuch Action ought to give the owner of the Tithes Notice
that the Tithes were ſet forth. Mich. 13: Car. Chaſe Vi Warez Roll's i
Alir.
Fee.
away Tithes:
592 The Clergy-Man's Law: Or, Chap. LIV.
out Tithes.
forfeited.
De ferring Abr. 643. Mich. 1652. B. R. Linifton and Maurice, Stile 342,
(though only the Canon, not Temporal Law cbliges to give Notice,
Spencer's Cafe, Noy 19.) But Notice of ſetting out of Tithes is need
fúl to be given only in ſuch Cafe, to entitle the Party to have his
Action, if they be not carried away in convenient Time. Trin. 1 1.6
M. C. B. Anonymus, 2 Ventris 48. If after the Tithes are ſet out,
and Notice thereof given to the Parſon, he fends his Servant for them,
but the Pariſhioner threatens the Servant, and will not ſuffer him to
carry them away, and after that the Parfon leaves them a long Time
to remain upon the Ground, whereby the Pariſhioner's Grafs is dam-
nified, yet no Action lies againſt the Parſon in this Cafe until a new
Requeſt made to him to carry his Tithes away. Trin. 15 Car. Lee v.
Rufell, Roll's i Abr. 109. But though the Action lies for not car-
rying away predial 'Tithes, as Corn or Hay, yet 'twas doubted whe-
ther it lay for not taking away of Tithe-Cheeſe, or other mix'd
Tithes. Trin. 21 Fac. B. R. Wiſeman and Denham's Cafe, Godbolt
329, the ſame Caſe, Roll's 2 Rep. 128. And it ſeems to be, that if
Tithes ſet forth remain too long upon the Land, &c. the owner of
the Soil may take them Damage-Fefant; but then being ſued for
them, he to juſtifie muſt ſet forth how long they had remained before
he took them; and when they ſhall be ſaid to remain too long, 'tis
triable by the Jury. Hill. i Car. B. R. Mountford v. Sidley, 3 Bul-
Atrode 336. Hill
. i Car. B. R. Stillman v. Chanor, Latch 8.
Predial Tithes not being ſet forth duly and effectually, as aforeſaid, or
Concerning
treble Value agreed for, by the former of the before-mentioned Clauſes in the Sta-
tute 2 & 3 É. 6. the treble Value thereof is forfeited. Concerning
which treble Value, Two Queſtions have been: Firſt, To whom in
ſuch Caſe the faid Penalty is given. Secondly, In what Court it
may be recovered. As to the firſt, fome have thought that the treble
Value was given to the King, it not being by expreſs Words in the
Statute limited to any one, Savil 63. But the contrary hath been ad-
judged, that this Penalty is given to the Party grieved. 2 Inft. 650.
Mich. 11 Fac. C. B. the Dean and Canons of Windſor v. Web, God-
bolt, Mich. 39 & 40 Eliz. B. R. Bedle and Sherman's Cafe, 3 Croke
608. 13 Coke 48. Coke's Entries 162. Moor 710. Paſch. 3 Jac. B. R.
Dag. and Kent v. Penkevon,, 2 Croke 70. And the Reaſon of theſe
Judgments ſeems to be, that though all Forfeitures at Common Law,
as alſo Forfeitures given by Act of Parliament by Reaſon of any
Of-
fence committed againſt the publick Juſtice of the Nation, and not
appointed to any particular Perſon, ſhall be to the King as the Head
and Fountain of Juſtice, and thereby ſuppoſed to be the Perſon of
fended and injured by ſuch Offence; yet when a Forfeiture given by
Act of Parliament appears not to be intended meerly as a Puniſhment
for the Offence committed, but as a Recompence to ſome particular
Perſon injured, for the Damage he hath thereby fuſtain'd; in ſuch
Caſe, though no particular Perſon be by ſuch Statutue expreſſed to
have the Penalty and Forfeiture, yet the Party damnified ſhall have
it as a Recompence and Satisfaction for the Damage he hath ſuſtained
by the Offence and the Forfeiture and Penalty given by this Statute
hath been expounded to be as a Satisfaction intended for the Tithes
ſubftracted, therefore to belong to the Perſon whoſe Right it is to have
ſuch Tithes. Pafch. 29 Eliz. Moor 238, Doctor Bonham's Caſe, 8 Co.
119.b. Hill. 40 Eliz. Moor 710. But the Statute being prohibitory,
the Party not ſetting forth his Tithes, may be fined to the King, upon
-
1
an
Chap. LIV. The Complete Incumbent:
593
out Tithes
an Information or Indiêment, as was ſaid, Mich. 40 & 41 Eliz. Moor Dr ſetting
911. Paſch. 26 Eliz. Savil 62.
The next Doubt hath been, in what Court the treble Value is re- in what
coverable. As to which, Two Points have been reſolved: Firſt; That Court the
the Owner or Tenant of the Tithes may fue for the treble Value in recoverablc.
the King's Temporal Courts by Action of Debt. Paſch. 3 Faci C. B.
Dag and Kent v. Perkevon, 2 Croke 70.
Paſch. 39, or Hití
. 40 Eliz.
Bedle v. Sherman, 3 Croke 6c8. Hill. 7 Jac. B. R. Ford v. Pomroy,
126. Secondly, That a Suit for treble Value may not be brought in
the Spiritual Court. Trin. 44 Eliz. B. R. Sprat and Heale's Cafe, 13
Coke 23, and Bedle and Sherman's Cafe, 13 Coke 47. And if the
Owner of the Tithes doth demand the treble Value by Suit in the Spi-
ritual Court, a Prohibition lies. Mich. 11. Fac. C. B. the Dean and
Canons of Windſor v. Web, Godbolt, Mich. 8. Fac. C. B. Parker's
Cafe. Brownlow and Gouldsborough 1. And when a Sentence defini-
tive was given in the Eccleſiaſtical Court for the treble Value, and á
Prohibition was thereupon prayed, though the Court doubted whether
a general or ſpecial Prohibition ought to iſſue, and whether the Court
Chriſtian after a definitive Sentence could divide their Sentence, or the
Execution of it; yet at length it was reſolved, that the Prohibitioni
Thould be, that they ſhould not proceed to the Execution of their
Sentence, as to the treble Value. Hill. 11 Jac. Gerey's Cafe, Moor 873:
And though in the Spiritual Court, upon a Libel grounded upon this
Statute, the Sentence be, that the Plaintiff ſhould recover the ſingle
Damages, and the ſame be ſet in certain; & ulterius quod recuperet
duplicem valorem, which is alſo by the fame Sentence ſet in certain,
yet a Prohibition will be granted, becauſe the Damages to be given in
that Court are exceeded in ſuch Sentence; for though in ſuch Sentence
it be not cxprefly ſaid that treble Damages ſhall be recovered, yet it
doth amount to as much if the Words of the Sentence be joined to-
gether : Wherefore in ſuch Caſe it was directed, that a ſpecial Prohi-
bition, in which the Statute and the whole Matter was to be men-
tioned, ſhould be awarded. Hill
. 11. fac. C. B. Baldwin and Gerey's
Cafe, Godbolt 341. “And thus, by the Expoſition of this Clauſe giving
treble Damages, the Common Law Courts have the Trials of Caufes
of Tithes originally, to the great Grief of the Civilians, and no leſs
Benefit and Advantage of the Clergy, and other Proprietors of Tithes.
However, the treble Value for Tithes not duly ſet forth is not re-
coverable by Bill in the Exchequer-Chamber; for when a Bill was
exhibited there upon this Statute for the treble Value, it was clearly
holden by the Court; that the Bill did not lie upon the Matter; for
that there ſhall be no Suit or Proceedings, according to the Order of
the Exchequer-Chamber, in Cafes of Conſcience upon any Penal Sta-
tute ; but the ſame may be ſued for in the Court of Pleas in the Ex-
chequer. Trin. 30 Eliz, in the Exchequer, 3 Leonard 204. Mich. 33
& 34 Eliz. Langley v. Haines, Moor 302. Yet it is ſaid by Keeling,
that the treble Value given by this Statúte is a Duty trebled by the
Statute, and not a bare Penalty only. Pafch. 21 Car. 2: Moreton v.
Hopkins, 2 Keble 502. And a Bill being brought in the Excheqüer,
and a Denurrer to it, for that the Plaintiff had not thereby demand-
ed the ſingle Value, it being a Bill of Diſcovery only to enable the
Plaintiff to ſue for and recover the treble Value, the Court over-rúled
the Demurrer, for that Tithes were ſuable for in this Court before
the Statúte: But a Quære is made of this Cafe by the Reporter, be-
Sfff
cauſe,
594
The Clergy-Man's Law: Or, Chap. LIV.
15 Car.
Not in all
Di ſetting cauſe, as he ſays, it is contrary to the common Practice and Uſage of
out Tithes., the Court, to have ſuch a Bill without alledging that the Plaintiff is
contented to receive the ſinglo Value only. Paſch. 13 Car. 2. in Seac-
car. Driver v. Man, Hardres 190. And in an Engliſh Bill in this
Court, the Plaintiff need not to ſet forth particularly his Title to the
Tithes, no more than in Action of Debt upon the Statute; as if a Vi-
car be Plaintiff, he need not ſet forth whether he claims the 'Tithes by
Preſcription or Indowment, but eſpecially if the Defendant admit the
Plaintiff's Right to have the Tithes, and inſiſts upon ſome other Mat-
ter, as Payment, &c. that will ſupply the Defects of the Bill, though
'tis ſaid to have been often ruled contrary. Hill.
14
&
2, in Scac-
car. Stone v. Ludlow er al'. Hardres 321. Mich. Anno Dom. 1658.
in
Scaccar. Burton v. Honey, Hardres 130. And the Plaintiff ought to make
Proof of the Value of the Tithes, as what Cattle had been depaſtured
in the Place where, &c. Trin. 1655. in Scaccar. the Attorney-General
v. Straite, Hardres 4.
Nor may a Recompence, according to the ſingle Value of the
Caſes in the Tithes ſubſtracted, be recovered in all Cafes in the Court of the Ex-
Exchequer. chequer; for when the Queſtion was moved there, Whether an Im-
propriator that is to pay an annual Rent to the King for his Impropria-
tion in the Name of a Tenth, ſhall have the Privilege of the Exche-
quer to ſue for Tithes there as the King's Debtor, viz. for the ſingle
Value thereof? The Barons were of Opinion, that he ſhould not; for
upon
the fame Reaſon (faid they) every one who is to pay any Tenths
or Firſt Fruits, ſhould draw another who fueth him into the Exche-
quer, and ſo all Controverſies concerning Tithes and Parſonages ſhould
be drawn thither, which would be a great Prejudice to the Spiritual
Courts. But Egerton Solicitor vouched Conier's Caſe, where the King
gave a Parſonage to a Prior in Frankalmoign, and the Tithes thereof
being withdrawn, the Prior impleaded him who withdrew his Titles
in the Exchequer; and in that Caſe it was holden, that the Prior
ſhould have the Privilege, for the King is in Danger to loſe his Patro-
nage, or rather his Founderſhip, if the Rectory be evicted. Gent. Ba-
ron ſaid, the 'Tenant of the King in Chief, or he who pays firſt Fruits,
or he who holds of the Queen in in Fee-Farm, ſhall not have in that
Reſpect Privilege. Mich. 32 Eliz. in the Exchequer, the Dean and
Chapter of Windſor's Cafe, 2 Leonard 146.
Note that in a Claufe in the Statute of 2 & 3 Ed. 6. it is enacted,
Ed. 6. cap.13. Chat if any Perſon do ſubftra& oy withdjaw any manner of Tythes,
Dbventions, Profits, Commodities, oj other Duties before mentions
ed, oj any part of them, contrary to the true Meaning of this dä,
Od of any other Ad heretofoje made, that then the party ſo ſubſtrat-
ing od withdrawing the ſame, may or thall be convented and ſued in
the King's Ecclefiaftical Court by the party from whom the ſaini
ſhall be ſubftrañed od withdjawn, to the Intent the King's Judge EC-
Proceſs in
the Ecclefi- cleliaftical thall and may then and there hear and determine the ſame
fical Courts, according to the King's Ecclefiaftical Laws. And that it fhall not
be lawful unto the Parloni, Wicar, Peopjieto), Dwner, oy other
their Fermois Oj Deputies, contraray to this gå, to convent oz lue
ſuch Withholder of Tythes, Dbventions, and other Duties afore.
ſaid, before any other Judge than Ecclefiaffical. And if any Arci.
vifhop, Bichop, Chancello), oj other Judge Ecclefiaftical, give any
Sentence in the fożeſaid Cauſes of Tythes, Dbventions, Pofits,
Emoluments, and other Duties aforeſaid, op in any of them, (allo
Bộ 2 Cao 3
Chap. LIV. The Complete Incumbent.
595
no appeal ne Prohibition hanging) and the Party condemned do not De fetting
obey the ſaid Sentence, that then it fall be lawful to every ſuch out Lithes.
Judge Ecclefiaftical to ercommunicate the ſaid Party ſo as afoże con-
demned and diſobeying ; in the which Sentence of Ercuminunication,
if the ſaid Party ercommunicate wilfully ſtand and endure ftill era
:
commuicate by the Space of Foity Days niert after, upon Denun-
ciation and Publication thereof in the Pariſh Church, or Place oz
Pariſh where the Party ſo ercommunicate is dwelling od moſt
abiding, the ſaid Judge Ecclefiaftical may then at his pleaſure
ſignifie to the King in his Court of Chancery, of the State and Con-
dition of the ſaid Party ſo ercommunicate, and thereupon to require
Poceſs De Ecommunicato capiendo to be awarded againſt every ſuch
Perſon as hath been ſo ercommunicate. Stat. 2 & 3 Ed. 6. cap. 13.
Yet ’tis faid, that if a Copyholder of the King's Manor pretends Where the
Preſcription for a Modris Decimandi againſt a Parfon, the Right of Exchequer
Tithes ſhall be tricd in the Exchequer, and a Prohibition was granted the Suit
to the Eccleſiaſtical Court in ſuch Cafe. Pafch. 7 7ac. in the Exche- contr..
quer, 4 Leonard. And when the caſe was, that J. S. was Parſon of
à Church, and A. Vicar, and the King Patron, the Court ſaid, the
Debate between the Parfon and the Vicar for the Tithes ought to be
in the Exchequer by Engliſh Bill, or by Action in the Office of Pleas.
Paſch. 29 Eliz. in the Exchequer, 1 Leonard 59. Trin. 30 Elize in
the Exchequer, 3 Leonard 204. Alſo ’tis faid, that where a Prior
is the King's Debtor, or ought to have Tithes of another Spiritual
Perſon, he may chooſe to fue for the Subſtraction of his Tithes, either
in the Eccleſiaſtical Court, or in the Exchequer, and yet the Perſons
and Matter alſo were Eccleſiaſtical; for ſeeing that the Matter by a
Mean concerneth the King, he may ſue for them in the Echequer as
well as in the Eccleſiaſtical Court, and there ſhall the Right of Tithes be
determined. 38 All. pl. 20, vouched by 5 Co. de Jure Eccleſiaſtico, fol. 16
And in the late Times of Rebellion, when Eccleſiaſtical Courts were
fupprefs'd, and upon that Reaſon Tithes were equitably ſued for in
the Exchequer, becauſe at that Time there was no Remedy for other ſuppreſs’d.
than predial Tithes, and in effect none for them, when they were of
ſo ſmall Value, that the treble Value thereof being recovered would
not anſwer the fubftracting them, and reinburſe the Coſts of Suit ;
and ſince the Reſtoration of the Church and its Juriſdicton, the Uſe of
fuing in the Exchequer before, and an ill Opinion of the Manage-
ment of the Eccleſiaſtical Courts, have cauſed Perſons grieved to fue
more frequently in the Exchequer by Engliſh Bill; yet it is ſaid, that
before the Statute Tithes were anciently ſued for in the Court of Ex-
chequer. Hardres 190. Tithes alſo by Engliſh Bill may be ſued for
in Chancery, but not for the Forfeiture of the treble Value; but an
Aation of Debt upon the Statute of 2 E. 6. lies not in the Sheriffs
Court by Juſtices. Mich. 20. Car. 2. B. R. Biſhop v. Corbet, i Le-
vinz 153. 2 Keb. 416, 420. Yet thoſe that want to be relieved for
their Tithes detained, do not take Sanctuary in thefe Courts, becauſe
the Law doth not fufficiently enable the Eccleſiaſtical Courts to give
Remedy for all Sorts of Church Duties; for though they may not re-
cover there the treble Value by Force of the firft Clauſe of this
Statute, yet by the fecond Clauſe thereof before mentioned,
thcy ſhall recover the double Value of the Predial Tithes in the
Spiritual Court, and no Prohibition will lie; for that is given by the
expreſs Words of the Statute; and ſo it was adjudged in Manwood's
Sirf 2
Caſc
Ecclefiafti.
cal Courts
596
The Clergy-Man's Law: Or, Chap. LIV.
Fac.
If the Tithes
in the Ec-
clefiaftical
Court.
De fetting Cafe in the Exchequer, and in the Common Pleas. Mich. 21
out Tithes. the Dean and Canons of Windſor and Webb's Cafe, Godbolt, Trin.
44
Eliz. B. R. Sprat and Heal's Cafe, 13 Co. 24., And Coke upon this
Clauſe of the Statute faith, that the Reaſon why the double Value,
&c. is by this Branch to be recovered in the Eccleſiaſtical Court,
whereas by the former Branch the Parfon at the Common Law ſhall
recover the treble, is for that in the Eccleſiaſtical Court he fhall re:
cover the Tithes themſelves; and therefore the Value recovered in the
Eccleſiaſtical Court is equivalent with the treble Forfeiture at the
Common Law. And upon the Words, [Belides the Cotts, Charges
and Erpences, &c.] he addeth, that the Suit in the Eccleſiaſtical
Court is more advantageous than the Suit for the treble Value at the
Common Law: For at the Common Law he ſhall recover no Coſts,
but be ſhall recover in the Eccleſiaſtical Court Coſts and Expences.
Co. 2. Inft. 651.
But now whereas Coke faith to this Effect, That not only the double
themſelves Value of the Tithes ſubftracted, &c. ſhall be recovered in the Eccle-
and a double fiaſtical Court, but the Tithes themſelves ſhall alſo be rocovered
be recovered there; a Doubt ariſeth, How the double Value of the Tithes, and
alſo the Tithes themſelves, (viz.) a Recompence for them, according
to the finiple Value thereof, ſhall be recovered; (viz.) Whether by
one and the fame Suit, or by an After-Suit, (when the double Value
hath been firſt recovered) according to the ordinary Courſe of Pro-
ceedings in the Eccleſiaſtical Court for Tithes fubftracted, Gc. before
this Statue was made. And the Reaſon of the Doubt is, Becauſe when
a Parſon having grounded his Libel upon the Statute of 2 Ed. 6. and
obtained a Sentence in the Ecclefiaftical Court to recover the ſingle
Damages, which was ſet in certain, and farther the double Value
which was alſo ſet in certain, a Prohibition was granted per
Curiam, becauſe the Spiritual Court in effect gave treble Damages
.
Hill. 11 Fac. C. B. Baldwin and Girrie's Cafe, Godbolt 341. As to
which, I conceive, that Coke's Meaning is, that only double Damages,
but alſo a Recompence for the Tithes themſelves fhould be recover-
ed in tlie fame Suit, otherwiſe he could not fay, that the Value re-
covered in the Eccleſiaſtical Court is equivalent with the treble For-
feiture at the Common Law : But then I conceive, that the Libel
muſt be framed accordingly, (viz.) not to be grounded only upon
the Statute, and then upon a Sentence anfwerable to ſuch a Libel, a
Prohibition will not be granted, altho' that in Baldwin and Girrie's
Cafe the Libel and Sentence being only grounded upon the Statute,
the Prohibition might be granted. Quære.
But if. with double Damages and Coſts a Recompence may be re-
If nothing covered for the Tithes themſelves, according to the ſingle Value there-
treble Value of, in the Spiritual: Court; yet beſides the treble Value of them, nei-
is to be reco-ther the Tithes themſelves, nor any other Recompence for them,
can be recovered in the Temporal Courts; becauſe, though as Fitz-
Temporal
herbert holds in his Nat. Brev.fol. 30, that before the Stat. 18 Ed. 3.
6. 7. the Right of Tithes were determinable in the Temporal Courts
at the Election of the Party, yet now by the ſaid Statute, the Tem-
poral Court is wholly debarred of the Juriſdiction thereof. See
Coke's Fifth Part de Jure Eccleſiaſtico. And therefore in all Suits
upon Stat. 2 & 3 Ed. 6. c. 13. the Tithes are never demanded, but
the Action is only perfonal, grounded meerly upon a Contempt againſt
the Statute, for not ſetting forth tle Tithes; and for that Reaſon it is
3
held,
vered in the
Courts.
Chap. LIV. The Complete Incumbent.
497
out, vitles.
Erroti
held, that no Action lies againſt Executors upon this Statute, the Df Certing
Action being grounded on a perſonal Wrong, which dies with the Teſta-
tor, but Executors may have an Action upon this Statute for Tithes
not ſet forth in the Time of their 'Teſtator, by the Equity of the Sta-
tute, 4 Ed. 3. c. 7. by Twiſden Juſtice. Mich. 14. Car. 2. B. R. in
the Caſe of Holl v. Bradford, 1 sid. 88, the ſame Cafe, 1 Kėble 344.
Raymond 52. Paſch. 21 Car. 2. Juſtice Morton's Caſe, i Vent. 30, 31.
Yet where a Suit was continued againſt Executors in the Spiritual
Court for double Damages, a Prohibition was denied. Mich. 15 &
16 Car. 2. B. R. Wilks and Ruſel, 1 Keeble 682. Raymond 95, fame
Cafe; 1. Siderfin 181. Where 'tis faid, the Judges were of Opinion
that the Prohibition ſhould be granted, and that a Plaintiff fhath only
recover his Tithes in the Damages, and ſhall not demand them again
by any Suit after a Recovery of the treble Value. Pafch. 3 Jac. Sir
Richard Campion v. Hill, i Brownlow and Gouldsborough 86, fame
Cafe, Yelverton 6.35
As beſides the treble Value of the Tithes not ſet forth; the Plaintiff Damages
ſhall not recover any Thing for the 'Tithes themſelves in the 'Temporal and Cotts
Court, fo ſhall he not there recover other Damages or Colts, for that the ted to avoid
Statute doth not give them by exprefs Words; wherefore when in an
Action of Debt for Tithes upon non Debet pleaded, the Jury found
quod Debet 78 1. and for the Reſidue 12012 Debet, and Damages afſef-
fed at 1 d. and Coſts at 40s. the Plaintiff to avoid Error releaſed the
Damages and Coſts, and had Judgment for the Debt. Trin. 44 Eliz.
Day v. Peckuel, Moor_915. Paſch. 3 fac. in the Exchequer-Cham-
ber, Day and Kent v. Penkevon, 2 Croke 70, and Jenkins 316.
And as the Plaintiff in an Action upon this Statute doth not recover
Coſts, ſo neither hath the Defendant Coſts in caſe of Nonſuit or Dif-
continuance; for when a Plaintiff having brought Two Actions was
nonfuited in one, and diſcontinued the other, by the whole Court it
was denied that the Defendant ſhould wave Coſts either by Statute 8
Eliz. or 4 7ac. C. 13. upon this Reaſon, that the Plaintiff, if he had
recovered, ſhould have had but the treble Value without Coſts
. Mich.
77ac. B. R. Cox v. Small, Noy 126. But now by the Statute 8 & Where by
9 W. 3. c. II. where the ſingle Value or Damages found by the Jury W.7.c.11
.
ſhall not exceed the Sum of Twenty Nobles, the plaintiff obtaining costs arc
Judgment after Plea pleaded, or Demurrer, ſhall recover his Corts of giyen.
and if the Plaintiff ſhall become nonfuit, or ſuffer a Diſcontinu-
ance, or a Vredict ſhall paſs againſt him, the Defendant ſhall recoycr
his Coſts.
Suit;
:
СНАР.
.
598
The Clergy-Man's Law: Or, Chap.LV
zohibitis
ons, Sec.
CHAP. LV. .
Small Tithes and other Church Duties, how
to be recovered. Suggeſtions to obtain Pra-
hibitions, how made and proved. Modus
Decimandi, if ſuable for in the Spiritual
Court.
TH
the Libel to
circ. before
tion.
Small
Hough the Two firſt Clauſes of the Statute 2 O 3 Ed. 6. C. 13.
Tithes, CPC.
mentioned in the laſt Chapter, do give Remedy only for Pre-
recoverable
in Spiritual dial Tithes, and the latter of them only in the Spiritual Court; yet
Court by 2 the ſaid Statute gives Aid to the Ecclefiaftical Courts alſo in the Re-
Ege 3 Ed. 6.
cap. 13.
covering of all other Church Duties, viz. by the other Clauſe of the
faid Statute recited alſo in the foregoing Chapter, which Clauſe was
but an Affirmance of the ancient Eccleſiaſtical Law, and makes no
Addition thereto in any Reſpect, and was enacted to the End that the
Temporal Judges, who are the Interpreters and Judges of all A&ts of
Parliament, though they only concern Things meerly Spiritual or Ec-
cleſiaſtical, may not by the Occaſion of this, or any other Statute made
before it, either draw to their Courts the Cognizance of Cauſes rela-
ting to Church Duties, or take Occaſion from thence by Prohibitions
to ſtop Proceedings for them in Eccleſiaſtical Courts : There is alſo
another Clauſe in the ſaid Statute 2 & 3 Ed. 6, by which it is enacted,
A Copy of
That if any party at any Time hereafter, foz any Matter 02 Cauſe
be produced, before revearſed, limitted, or appointed by this ał, to be ſued oz
determined in the King's Eccleſiaſtical Court, 02 before the Eccle-
any Prohibi-
laffical Judge, do ſue for any Prohibition in any of the King's
Courts where prohibitions befoże tijis Time have been uſed to be
granted, that then in every ſuch Caſe the ſame Party, before any
Prohibition thall be granted to him of them, thail bzing and deliver
to the Hands of ſome of the Juſtices 02 Judges of the ſame Court
where ſuch Party demanded Prohibition, the very true Copy of the
Libel depending in the Eccleſiaſtical Court, concerning the Patter
whereof the Party demandeth Prohibition, ſubſcribed oinarked
with the hand of the ſame Party; and under the Copy of the ſaid
Libel ſhall be written the Suggeſtion wherefore the Party lo de:
mandeth the ſaid Prohibition and in caſe the ſaid Suggeſtion by
Two honeſt and ſufficient Witneſſes at the leaſt, be niot proved true
in the Court where the ſaid Prohibition fhall be granted, with-
in Sir Donths next following after the ſaid Prohibition ſhall be ſo
granted and awarded, that then the Party that is letted or hindeed
of his op their Suit in the Ecclefiaftical Court by ſuch Prohibitioli,
fall upon his od their Requeſt and Suit, without Delay, have a
Conſultation granted in the ſame Caſe in the Court where the ſaid
Prohibition was granted, and fhall alſo recover double Cofts and
Damages againſt the Party that ſo purſued the ſaid prohibition,
the ſaid Coſts and Damages to be alligned og afleted by the Court
where
3
Chap.LV. The Complete Incumbent. 599
Clauſe to
prevent
prc-
where the ſaid Conſultation thall be fo granted'; fox which Cats Prohibiti-
and Damages the Party to whom they. Thall be awarded, may have ons, esco
an axion of Debt by Bill, Plaint, OJnformation in any of the
King's Courts of Record, wherein the Defendant fall not wage
his oy their Law, nou have any Efloin 02 Protegion allowed oz ad-
mitted. Stat. 2 & 3 Ed. 6. cap. 13.
This Clauſe was enacted to prevent needleſs Delays by Prohibitions The Intent
in Suits commenced for Tithes, &c. in the Eccleſiaſtical Courts; and of the ſaid
to this End, this Clauſe firſt appoints, that a Prohibition ſhall not be
granted before the Party ſuing for it fhall deliver a true Copy of the needleſs De-
Libel, and under it the Suggeſtion written wherefore the Prohibition is
lays.
demanded, that if it ſhall appear to the Judges that no Prohibition
lies upon the Suggeſtion, or if there be Variance betwixt the Libel
and Suggeſtion, no Prohibition ſhould be granted, for that in caſe of
Variance no Prohibition lies; and therofore, though it be granted, a
Conſultation is of Courſe to be awarded, that is, if the Variance be
a material Variance. Therefore when upon a Prohibition the Sugge-
ſtion was, that the Lands were Lands diſcharged of Tithes in the
Hands of a Prior, and ſo ought to be diſcharged by the Statute 31 H.
8. and that the Parſon fued him for 40 Fleeces of Wool; the Parfon
pleaded thereto, that he ſued him for 400 Fleeces, and pray'd a Coni-
ſultation, and had it: But upon a Writ of Error it was held, that
ſuch Variance was not material in this Cafe, becauſe the Plaintiff
fcribes in non Decimando, and ſo wholly outcd the Eccleſiaſtical
Court of all manner of Juriſdiion for any Tithes of that Land,
becauſe it is diſcharged of it felf without paying any Thing as a
Modus ; but if the Suggeſtion had been upon a Modus Decimandi,
it had been otherwiſe, for in ſuch Caſe the Cauſe of Tithes originally
belongs to the Spiritual Court, was it not for the Modus; and therefore
the Suggeſtion of a Modus Décimandi ought to agree with the Libel,
becauſe a Suggeſtion is ever grounded on the Libel, and the Caufe is
to be ſtay'd by Prohibition upon one Cauſe certain : Wherefore, to pre-
vent ſuch Variance (as was faid) 'twas enacted by this Clauſe, that
the Copy of the Libel with the Suggeſtion ſhould be delivered to the
Judge granting the Prohibition ; yet if notwithſtanding ſuch Prohibi-
tion a Variance be afterwards found, though in that Cafe a Conſulta-
tion is to be granted, yet no double Coſts and Damages are to be af-
ſeſſed by Force of this Clauſe, for that by the expreſs Words thereof
they are to be given only upon Default of not proving the Suggeſtion.
Mich. 3 7ac. B. R. Hutton2 v. Barns. Yelverton2 79.
Note further, 'That he that demands a Prohibition, is obliged to Libel with
bring the Copy of the Libel with his Suggeſtion under-written, when Suggeſtion
the Suit in the Eccleſiaſtical Court is, as the Words of the Statute
are) for any matter od Cauſe befoje rehearſed, limited and appointed
by this ant to be ſued od determined in the King's Ecclefiaftical Courts.
Now by the Second Clauſe of this Statute, Perſons may be ſued in
the Ecclefiaftical Court for carrying away their Corn, Hay, or other
Predial Tithes before the 'Tithes thereof be ſet forth, or for with-
drawing ſuch thcir 'Tithes, or for hindring them to be carried away.
And by the former of the Two Clauſes laſt before-mentioned, Suit
may be in the Eccleſiaſtical Court, as the Words thereof are: If any
Perſon do ſubftract 07 withdraw any manner of Cythe, Profits, Com
modities, or other Duties before mentioned, 0 any part of them 2011:
frary to the true meaning of this aa, oz any other ax berctofore
miadc.
ز
under-wric-
ten.
600
The Clergy-Man's Law: Or, Chap. LV. .
ons, esco
How this
ties.
Six Months.
Prohibiti- made. And this Act doth not only mention and provide for the Pay-
ment of Predial and Perſonal Tithes and Offerings by ſeveral Clauſes
therein, which fee in Chap. 54, but alſo the Firſt Clauſe thereof
Statute ex, doth mention thoſe other Axts in this Cafe ſaid to be
heretofore made,
Tithes and vizi 27 H. 8. cap. 20, which extends not only to Tithes and Offer-
Church Du- ings, but alſo to all other Duties of Holy Church ; and 32 H. 8. c. 7.
which extends to Tithes and Offerings generally, and ſo to all Things
under that 'Term comprehended, and doth alſo confirm the ſaid Sta-
tutes exprefly, and makes them to be as a Part thereof; ſo that all
Tithes and Church Duties, which are alſo mentioned therein, are as
particularly mentioned in this Act, and by conſequence when any Suit
is brought in Court Chriſtian for any Sort of Tithes, or any other
Church Duties, the Defendant in the ſaid Court, before he
may
have
a Prohibition, is bound by the Second Clauſe mentioned in this Chap-
ter, to bring to the Temporal Judge the Copy of the Libel againſt
him, &c. and under the ſame his Suggeſtion written.
Suggeſtion to And from hence further note, That by the Words of the Statute it
be proved in ſeems, that in all Caſes in which a Defendant in the Spiritual Court
is bound, before he may have a Prohibition, to deliver the Copy of
the Libel, &c. with the Suggeſtion under-written, he is bound alſo to
prove his Suggeſtion in Six Months, to avoid the granting of a Con-
fultation with double coſts and Damages: For after this Clauſe hath
faid, That under the Copy of the ſaid Libel ſhall be written the Sug.
geſtion ; wherefore the party deníandeth the Caid Prohibition, the next
Words are, and in caſe the ſaid Suggeſtion be not proved to be true
within Sir months, &c. viz. that fame Suggeſtion that was in the
foregoing Words, appointed to be written under the Copy of the Li-
bel. And therefore it ſeems to be plain, that the Statute intended,
whatever the Matter of the Suggeſtion be, double coſts and Damages
are to be given in all Gaſes; if the fame be not fo proved, when the
Party as aforeſaid, before a Prohibition granted, is bound to bring to
the Judge the Libel againſt him, and therewith his Suggeſtion under-
written. And accordingly it hath been held, that this Clauſe requi-
ring the Proof of a Suggeſtion is general; therefore when one that was
ſued for Tithe of Hay in the Spiritual Court, upon a Suggeſtion that
he was to pay upon an Arbitrament ſo much, c. it was held, that
this Suggeſtion ought to be proved as well as one made of a Modus
Decimandi. And fo a Suggeſtion upon Statute 31 H. 8, that Lands
are Tithe-free, becauſe this Clauſe requiring the Proof of a Sugge-
geſtion is general, and not limited to real Compoſition, &c. Trin. 12
Fac. B. Ř. Reynolds and Hay's Cafe. Roll's i Rep. 55. So if a Per-
ſon hath a Prohibition upon a Suggeſtion that he ought not to pay
Tithes for Seven Years, for that the Lands were barren, he muſt prove
his Suggeſtion. Hill. 6 Car. B. R. Stroude v. Hoskins, Fones 231.
Yet ’tis faid, that a Suggeſtion of an Agreement with the Parfon to
pay a Rate for his Tithes ſued for in the Spiritual Court, is not of
Neceſſity to be proved in Six Months, viz, to avoid for that Cauſe a
Conſultation, Coſts and Damages, and that ſuch Proof goes to Sug-
geſtions only of a Modus Decimandi, not of a Leaſe or Contract,
and that ſo is the Practice in B. R. Mich. 5 Fac. B. Ř. Yelverton
104. Trin. 5 Car: C. B. Johnſon's Caſe. Hetley 145. Dubitat. 12 Jac.
B. R. Reynolds and Haye's Cafe. Rolls i Rep. 55. Trin. 30 Ēliz.
B. R. Woodward and Bugg's Cafe. 2 Leonard 29. See Hill. s Fac.
Gobi V. Hunt, Brownlow and Gouldsborongh 99. Mich. 18 Car. 2 B. R.
Eaton
Chap. LV.
601
The Complete Incumbent.
upon a Mo-
Eaton v. Naylor. 2 Keble 134. And tho' it be granted on all Hands, Płohibiti:
that when a ſuggeſtion is of a Modus Decimandi, it ought to be proved ones, focus
in Six Months, as was adjudged in Parfon Bugg's Cafe. Mich. 11 Jac.
C. B. & Hill
. 11 Jac. C. B. Gippie's Cafe. Godbolt. Paſch. 2 Jac. C. B.
Sharpe v. Sharpe. Noy 148. Mich. 5 Fac. B. R. Cox v. Seymour. Yel-
verton 104. Yet when a Prohibition was had upon a Suggeſtion of a When
Modus Decimandi for Part, and of a Contract executed for the Reft grounded
of the Tithes ſued for, it was held by the Court, that becauſe the dus, and alſo
Prohibition is not grounded ſolely upon the Modus Decimandi, which upon a Con-
needs ſuch Proof, but alſo upon the Contract between the Parties, Cofts
.
which, as is ſaid, needs no ſuch Proof; and the Suggeſtion being en-
tire, and Part of it needing no Proof, they could not give Coſts, for
that is only to be done where the whole Matter in the Suggeſtion
needs Proof; therefore the Mixing the Contract with the Manner of
Tithing privileges the whole, as to the Matter of Coſts; but they might
grant a Conſultation as to that part of the Suggeſtion which concerns
the Manner of Tithing, but not for the reſt. Hill. s Fac. Cob. v. Hunt,
Brownlow and Gouldsborough 99, fame Cafe. Yelverton 119. And
when a Prohibition was granted in a Cafe where no Prohibition did lie, Nota,
and the Six Months being lapſed without Proof of the Suggeſtion, the
Court ſaid, they would adviſe as to giving of double Coſts according
to the Statute, becauſe Coke thought, that if a Conſultation be grant-
ed for not proving the Suggeſtion in Six Months, that then Coſts ſhall
be given; but if it be granted, for that no Prohibition did lie of the
Mafter, that there no Coſts ſhall be given, and the Court did adviſe
as to the Coſts (and yet the Miſchief that is provided againſt by the
Statute ſeems to be the fame in both Caſes). Trin. 12 fac. B. R.
Reynolds v. Hayes. Roll's 1 Rep. 55. But a Prohibition being obtain-
ed upon a Suggeſtion, which was not proved within the Six Months;
and the Defendant in the Prohibition took Iſſue with the Plaintiff
,
which was found againſt the Defendant, it was reſolved by the Court,
that the Defendant ſhould not have Coſts for want of the Suggeſtion
being proved ; for the Statute is, That he ſhall have a Conſultation
and double Coſts ; but in this Cafe he could not have a Conſultation,
the Matter and Iſſue being found againſt him, but ought to have pray-
ed a Conſultation upon the Suggeſtion not being proved, and then
ſhould have had his double Coſts. Watkinſon v. Sir G. Pacy. Latch
140.
Note alſo, That it is ſaid that the Suggeſtion muſt be proved to be Suggeſtion
true ; yet it hath been adjudged, that the Suggeſtion needs not to be be ftri&tly
proved true ſtrictly, and in every part of it, to avoid a Conſultation proved.
with Coſts and Damages : For when a Suggeſtion upon a Prohibition
was, that the Defendant and all his Predeceſſors have had Twenty
Acres of Paſture, and another Clofe containing Twenty Acres of
Wood, in Satisfaction of Tithes, and the Witneſſes proved that he
had the Twenty Acres of Paſture, but not of Wood, it was adjudged,
that if it appears that the Court Chriſtian ought not to hold Plea
thereof, it ſufficeth. And therefore, if there be a Preſcription that the
Parſon holds an Hundred Acres of Land in Satisfaction of Tithes, and
the Proof be that he holds only Sixty Acres in Satisfaction of them, it
is well enough; becauſe the Subſtance of the Suggeſtion is proved,
that he holds Land in Satisfaction of Tithes, Gc. wherecf it was a-
greed in this Cafe, that the Plaintiff ſhould declare, and that the Dea
fendant ſhould plead to Iſſue. Hill. 42 Eliz. B. R. Auſten v. Piggot.
Tttt
3 Croke
602 The Clergy-Man's Law: Or, Chap. LV
.
ons, Boca
GoC.
cal Court
Prohibition
Part.
P20hibiti
3 Croke 736, fame Cafe. Moor 911. So if a Modus be alledged to be,
that one thall pay Twenty Shillings in Satisfaction for Tithes, and
the Proof be that the Modus is, that he ſhall pay Forty Shil-
lings, it is a good Proof, becauſe thereby the Court is entitled to the
Jurisdiction. Trin. 4 Cor. C. B. Goddard and Tiler's Cafe. Hetley 100.
And when a Suggeſtion was of a Modws to pay 2 s. 6 d. for Tithes,
and the Witneſſes prov'd the Modus to be to pay 3 s. the Proof was
held good, by Fenner and Yelverton againſt Popham, becauſe it ouſted
the Eccleſiaſtical Court of the Jurifdiction. Pafck. 43 Eliz. B. R.
Web. v. Petts. Noy 44, and Trin. 4 Car. C. B. Norton's Cafe. Het-
Ecclefiafti- ley 110. And when a Suggeſtion was, that for Time whereof,
2 d. had been paid for the Tithes of Wocl and Lambs, and the Wit-
cudied of. Jo- neſſes proved nothing as to the Wool, but that 2 d. had been paid on-
ly for the Tithes of the Lambs; a Conſultation been prayed, the
Court ſaid, 'That there was a Difference between a Suggeſtion to have
a Prohibition upon a Preſcription comprized in it, and a Preſcription
made in Defence, or by way of Plea in an original Action : For in
the laſt Cafe, if a Joint Preſcription be made for 'Two Things, and it
fail in one, the whole is deſtroyed, becauſe it is by Way of Title;
but otherwiſe in this caſe it is, becauſe this Prohibition is but to give
Juriſdiction to the King's Court, and here becauſe the Preſcription is
proved, though but in Part, viz., as to the Lambs, there ſhall be no
proved in
Conſultation. Mich. 2 7ac. B. R. Anonymnus. Yelverton. pag. 55.
So a Prohibition being prayed on Suggeſtion of a Modus to pay 3s.
for every Calf, which on Proof appeared to be for Cow and Calf
, yet
a Prohibition was granted. Mich. 20 Car. 2. Matthew's Cafe. 2 Keble
407. Yet where the Suggeſtion was, that the Occupiers of fuch a
Farm paid 'Twenty Shillings yearly in Difcharge of Tithes of that
and another Farm; and the Proof was, that the Tenants of thoſe
Farms paid Forty Shillings in lieu of Tithes of the one Farm only,
the Court would have granted a Confultation upon this Variance, but
that the Parties agreed to amend the Suggeſtion, and make the Modus
Forty Shillings. Trin. 18 Car. 2. B. R. Lufb v. Web. 2 Keble 57.
And if the Witneſſes make fuch Proof, which doth neither
prove
the
Modus laid, nor any other Modus for the Tithes in Queſtion, the Sug-
geſtion by producing of the Witneſſes is not faid to be proved; there-
fore when the Tithes of Milk and Calves were ſued for in the Spiritu-
al Court, and a Prohibition was had upon a Surmiſe, that every
Inha-
bitánt ſhould pay 4 d. for every Cow, and 2 d. for every Calf, and
the Witnefſes proved that Tithes had not there been paid in Specie; but
that every Inhabitant ſhould pay 6 d. and ſome 7 d. Sc. it was agreed,
that no Modus was proved, for that it is meer Incertainty, and fo
Conſultation, c. was awarded. Trin. 4 Car. C. B. Goddard and Ti-
ler's Cafe. Hetley 100.
Witneſſes
Note alſo, That by this Claufe the Witneſſes muſt be honeſt and
muſt be ho ſufficient ; therefore when a Suggeſtion was proved by Two Witneſſes
neſt and fuf- that had been attainted of Felony, it was held, that the Teſtimony of
ſuch was in all Cafes to be rejected, and the like of excommunicated
Perfons, and Recufants Convict, which are ſuch by Statute 3 Jac. €.
s, and a Conſultation was granted. Mich. 11 Jac. B. R. Brown v.
Good Proof Craſhaw. Bulftrode 2 p. 154. But if the Witneſſes be honeſt and fuf-
ofSuggeſtion. ficient, and they affirm before one of the Judges, that they have
known the Contents of the Surmiſe to be true, or that the common
Fame is fo, or that they have heard that it was fo, this Proof is good
enough,
+
ficient.
3
Chap. LV.
603
The Complete Incumbent.
.
intended
Mich. 41
enough. Mich. 15 Fac. C. B. Noy 28. Paſch. 43 Eliz. B. R. Web Prohibitis
v. Petts. Noy 44. Paſch. 33 Eliz. Stranham v. Cullington. 3 Croke ons,
228, for ſlight Proof will ſerve, vizi (as he thinketh or believeth it to
be fo. Trin. 4 Car. Sir Nicholas Stiddar v. Tilar. Littleton Rep. 155.
Or if one ſurmiſe that the Inhabitants of B. (of which he is one) have
paid a Modus Decimandi, and the Proof be that he himſelf had paid
it, this is ſufficient, becauſe it ouſts the Eccleſiaſtical Court of their
Conuſance. Mich. 15 Jac. C. B. Noy 28.
Note further, That the Suggeſtion by the faid Claufe is to be pro- The Six
ved within Six Months next following after the Prohibition ſhall be
Months,how
granted, that is, from the Time of iſſuing forth of the Prohibition, as and to be
was held. Trini
. 35 Car. 2. B. R. Staker v. Baynes ; yet the Judges account .
are ſaid to have held, that the 'Time of Six Months given by this Sta-
tute for the proving of a Suggeſtion, ought to be intended Six Months
in Term-time, and that the Vacation ſhall not be part of the Time.
42 Eliz. B. R. Moor 573. Alſo the Six Months ſhall
be accounted by the Kalendar, and not by 'Twenty eight Days to the
Month. Mich. 4 Jac. Copley v. Collins. Hob. 179, and yet this Sta-
tute was made to prevent Delays; and 'tis faid, that if Proof be made
in Time of Vacation, it is well enough. Paſch. 43 Eliz. B. R. Pot-
tinger and Johnſon's Cafe, quoted in Skinner's Cafe. Hill. 15 Jac.
C. B. Noy 30. And if the Surmiſe be proved before one of the Judges
within the Six Months; although that it be not recorded till after the
Six Months by the Court, it is well enough. Hill. 15 Jac. C. B. Skiri-
ner's Cafe. Noy 30. And Proof which is not ſufficient may be fup-
plied by better Proof within the Six Months, but not after the Six
Months. Trin. 4 Car. Sir Nicholas Steddar v. Tylar. Littleton Rep.
155.
if the Suggeſtion be not proved within Six Months according to the Coſts and
Statute, the Party, as hath been faid, ſhall have double Cofts and the A&ion
Damages, and may maintain an Action of Debt for the Recovery of for Coſts and
them, and in that Action he ſhall alſo recover his Coſts and Damages.
Damages.
Hill. 22 Jac. Cockram v. Davy: Bendloes 143.
Note alſo, That if a Conſultation hath becn awarded for that the After a Con-
Suggeſtion of a Modus was not proved in Six Months, yet a Prohibi-
Prohibition
tion may be granted upon a Suggeſtion of the fame Mods for the may be upon
ſame Land, if the Tithes before in Queſtion, viz. of the fanie Land a new Suit.
ariſing in another Year, be ſued for in the Spiritual Court, and ſo eve-
ry Year after, though ſeveral Conſultations have been granted upon
ſuch Prohibitions, for that the Suggeſtions were not proved in Six
Months, , and not upon the Right or Trial of the Cuſtom ; for the
Statute of so Ed. 3. cap. 4, goes to the Suggeſtion made upon the
fame Libel, and to a Conſultation duly granted, and not to the Cafe
of not having Witneſſes ready to prove the Suggeſtion through Negli-
gence. Mich. 5 Jac. B. R. And accordingly hath it been agreed,
that where a Conſultation is granted for not proving the Suggeſtion in
Six Months, the Party may have a new Prohibition upon the fame Li-
bel ; for that the Statute so Ed. 3, doth not extend to a Conſultation
upon not proving the Suggeſtion in Six Months, but only where the
Conſultation is granted upon the Matter and Subſtance of the Sugge-
ſtion. Hill. 6 Car. B. R. Stroud v. Hoskins. Jones 231. 1 Croke 208.
See Trin: 9 Jac. Dorwood v. Brickinden. 2 Brownlow 26, and the
fame Book 247. But in Bowry and Wallington's Caſe. Latch 7
'tis
faid by the Court, that they will be ſparing in granting Prohibitions in
Tttt 2
ſuch
ſultation a
604
The Clergy-Man's Law: Or, Chap. Ly
Non fuit.
may pro-
cecd.
Prohibitis fuch Caſes; but if upon the 'Trial of a Suggeſtion the plaintiff be
ons, Soc.
nonfuit, no new Prohibition ſhall be granted, altho' that the Nonfuit
was occaſioned for want of ſome of the Plaintiff's Witneſſes, who were
to prove the Truth of the Suggeſtion, and who were neceſſarily ob-
liged to be abfent. Paſch. !4 Car. 2. Tradeham Vir Keble 286,
if the Defendant in a Prohibition dic, his Executors may proceed in
the Spiritual Court, and the Judges of the Court out of which the
Prohibition was granted, will alſo in fuch Caſe make a Rule to the
Spiritual Court to proceed; but the plaintiff may, if he pleaſe, have
a new Prohibition againſt the Executors. Trin. 4 Car. B. R. Walfing-
bain v. Stone. Littleton Rep. 155.
The Statute 50 Ed. 3. cap. 4, doth enact, Chat whereas a Con-
ſultation is once duly granted upon a Prohibition made to the Judge
What Judge of Holy Church, that the ſame Judge may proceed in the Cauſe by
Wertue of the ſame conſultation, not withſtanding any other prohi
þitigni thereupon to him Deligered ; provided always, that the mat:
ter in the Libel of the Caio Cauſe be nog ingrolled, enlarged, or other-
Difference in wife changed. Now whereas this Statute, according to the printed
The cuprinted Statutes, (lays the ſame Judge) that is different from the Parliament-
Roll, which is Liceatque Judici Ecclefia. Latch. 6. 76, and there,
fore where a Parſop libolled in the Spiritual Court for Tithes, and a
Prohibition granted, and after a Conſultation was awarded, and Sen-
tence given in the Spiritual Court for the Parfon, upon which the De-
fendant there appealed to the Court of the Arches, and then moved
for a new Prohibition, which was granted; but afterwards a Conſulta-
tion being moved for, it was agreed by the Court, that where a Con-
fultation is awarded, no new Prohibition ſhall be granted upon the
fame Libel ; but if there be an Appcal, a Prohibition may be granted,
but with thefe Differences: 1. If he that appeals prays the Prohibi-
tion, he ſhall not have it, for then Suits ſhall be deferred in infinitu 114
in the Eccleſiaſtical Courts, ?. If the Prohibition and Conſultation
were upon the Subſtance of the Matter, elfe one thall be put to try
the ſame Point many 'Times, whịch would be full of Vexation. Parch.
I Car. B. R. Bowry v. Wallington. Popha1. 159, fame Cafe. Latch
6.76. Bendlows 148, 159 Paloh. 14 Fac. Moor 917, fame Cafe. 3
Bulſtrode 182.
But if when the Six Months are lapſed, the Defendant in the Pro:
Iſſue, but to hibition will not pray a Conſultation, and Coſts and Damages at that
get his con- Time, but will take Iſſue with the Plaintiff, and thereupon it fhall be
fultationwith found againſt him, he shall never havo his double Coſts and Damages,
becauſe he cannot have a Confultation, for that the Matter is paffed
againſt him. Watkinſon V. Sir George Pacy. Latch 140. Hill. 22 7ac.
B. R. Watkinſon; V. Perry. Noy: 8). But it ſeems he may in fuch
Cafo have his Corts, and Damages if it go for him, før than then he
is to have a Conſultation; and therefore 'tis beſt for every Dofendant
ina Prohibition (when the Suggeſtion is not proved in Six Months) to
get bis Confultation with Cofts and Damages, and not to plead to the
Matter of the Suggeftion,
Note, That the Party that has the Confultation upon this Claufo,
and Damages
is to have double Colls and Damages to be adeffed by the Court ; and
are uſually the Ufe as, to fet Cofts and Damages fingly, and then by the Statuto
they ſhall be doubled And though it be faid, that the Coſts and Das
mages fhall bo afligned or affelled by the Court, for which the Party
Grall have his Astion of Debt by Bill, Co. in any of the King's Courts
Not adviſe-,
able to take
Coſts and Da-
pages.
How the
doublc Cofts
afced.
of
4
Chap. LV.
605
The Complete Incumbent.
was, that
upon not pro- perfonal
of Record, c. without more, yet the Cafe
Perfonal
ving of a Suggeſtion, Coſts were aſſeſſed by the Court at Fifty Shil- Tpthjes.
lings, and Damages at Fifty Shillings to be doubled, and no formal
Judgment was given to recover them, becauſe theſe Words [Ideo C012-
fideratum fuit
, quod recuperet, &c.] were omitted, and the Parſon who
Yo recovered the Coſts and Damages brought his Action of Debt for
them, and declared upon all the Matter above, and that Damages
were aſſeſſed, c. and that the Coſts were not paid, per quod aétio,
&c. and adjudged, that he ſhould recover, and had a Judgment in this
Action of Debt by non fum informatus : Whercupon a Writ of Error
being brought as well upon the Record and Proceſs, &c. of the Pro-
hibition, as of the Record and Proceſs in the Action of Debt for the
Cofts; this Error in ſpecial was aſſigned, that there was no Judgment
in the Prohibition for the Recovery of the Coſts, but only an Affeff-
ment of the Coſts without any more, which is but Matter of Office,
but no Judgment in Court to bind, which was confeſſed by the whole
Court ; and Judgment was reverſed. Hill, s Jac. G. B. Gob. v. Hunt,
Brownlow and Gouldsborough i Part 99.
Though by the former of the Two Branches of this Statute laft be- As to Perſo-
fore-mentioned it be generally provided, That all Church Duties ſhall pal Tithes.
be recovered in the Eccleſiaſtical Court, yet it is before fpecially, as
to Perſonal Tithes, enacted thus : And be it alſo enađed by the authojity 2 8 3 Ed, 6.
afojelaid, That if any perſon refuſe to pay his perſonal Tythes in cap. 13.
Foim aforeſaid, that then it wall be lawful to the Didinary of the
lame Dioceſe, where the Party that co ought to pay the faid Tythes
is dwelling, to call the ſame Party befoje him, and by his Dilcres
tion to eramine him by all lawful and reačanable queans, other than
by the parties own Cozpocal Qath, concerning the true Payment of
the laid Perſonal Tythes. Stat. 2 & 3 Ed. 6. C. 13. This Claufe bath
Relation a it, which Chap
I hath allo been enacted, foz the more eaſie and effe&ual Recovery of 7 y 8 W. 3.
8
Small Cythes, and the Walue of them, where the ſame thall be ulidu, 6.6. of Small
ly ſubftražed and detained, where the ſame do nat amount to about
the yearly Ualue of Forty Shillings from any ane Perlan; 5e it
enaded by the king's molt Ercellent Majeſty, by and with the advice
and Content of the Lagna Spiritual and Cemparál, and Commons
in this preſent Parliament aſſembled, and by the authodity of the
{ame, that all and every Perlan aud Perfans ſhall hencefaitý mett
and truly ſet out and pay all and fingular the Cythes commanly
called Small Tythes, and Compafitiaus and Agreements for the
Came, with all Dfferings, Oblatians and Dbuentians to the reveral
Reños, dicars, and stbex Perfons to whoiu they are at ſhall be
pile in their ſeveral Pariches within this kingdom of England, and
Dominion of Wales, and Town af Berwick upon Tweed, according to
the Rights Cuftams and Puferiptions commuonly uſed within the
faid Pariſhes fefpe&ively. And if any Perfou 02 Perfans wall Gere:
after
Tubarak or withdraw, az any Wlays fall in the true Paynient af
Cuch fmall Tythes, Dfferings, D#latians, Dbuentions, 02 Compati.
tions, as atufaik, by the space of Twenty Days at mali atte
Demand thereof, then it fall and may hadi tambul faz the perfunt or
Perſons to whom the ſame ſhall be due, to make his on their com
plaint in Writing unto Two od mode of his Majeſty's Juſtices of
the peace within that County, Riding, City, Town Coppojate,
Place,
Tithcs.
:
:
1
U
ſuinmon the
Ego co
and Seals of the ſaid Juſtices to them diređed, diftrain the
606 The Clergy-Man's Law: Or, Chap. LV.
Becovery of Place, ou. Diviſion, where the ſame ſhall grow due, (neither of which
Small
Juſtices of Peace is to be Patron of the Church oj Chapel whence
tythes.
U the ſaid Tythes do ad fhall ariſe, nor any Ways inteređed in ſuch
Tythes, Dfferings, Dhlations, Dbventions, 02 CompoÄitions, a
foreſaid.)
Juſtices may
and be it furtheč enađed by the Authority afojefaid, That if here:
Subftractor, after any Suit 02 Complaint ſhall be brought to Two od moje Ju-
ttices of the Peace, as aforeſaid, concerning (mall Tythes, Dffer:
ings, Dblations, Dbventions, o2 Compoñtions, as aforeſaid, the
ſaid Juſtices are hereby authorized and required to ſummon in Wri-
ting under their hands and Seals by reaſonable Warning, every
ſuch Perſont ou Perſons againt whom any Complaint wall be made,
as aforeſaid ; and after his oj their appearance, oj upon Default of
their Appearance, the ſaid Warning or Summons being proved be
fore them upon Dath, the ſaid Juſtices of Peace, Od any TWO 02
moje of them, fall proceed to hear and determine the laid Com
plaint, and upon the Proofs, Evidences and Teſtimonies produced
before them, thall in Writing under their Hands and Seals adjudge
the Eaſe, and give ſuch reaſonable Allowance and Compenſation for
ſuch Tythes, Dblations and Compoſitions ſo ſubftra&ed op with:
held, as they fhail judge to be juſt and reaſonable, and alſo ſuch
Colts and Charges not erceeding Ten Shillings, as upon the De
rits of the Caule fall appear juft.
Diſtreſsupon and be it farther enaded, That if any Perſon oj Perſons fhall re-
Non-pay-
fule oz negleã, by the Space of Ten Days after Notice given, to
pay oy ſatisfie any ſuch Sum of Money as upon ſuch Complaint and
Proceedinig fhall by. Two oj moze Juſtices of the Peace be adjudged
as afozelaid, in every ſuch Caſe the Conſtables and Church-wardens
of the ſaid Pariſh, of one of them, fhall by Warrant, under the
Þands
Goods and Chattels of the Party lo refuſing od nieglexing as afore-
ſaid, and after detaining them by the Space of Three Days, in caſe
the ſaid Sum ſo adjudged to be paid, together with reaſonably
Charges for making and detaining the ſaid Diſtrelles, be not tendred
02 paid by the ſaid Party in the mean Time, fhall and may make
Sale of the fanie, and pay to the party coinplaining ſo much of the
money ariſing by Tuch Sale, as may ſatisfie the ſaid Sum ſo ad
judged, retaining to themſelves ſuch reaſonable Charges for making
and keeping the ſaid Dift reſs, as the ſaid Juflices ſhall think fit
and fjall render the Dverplus (if any be) to the Dwner.
Provided always, and be it enađed, That it fhall and may be law-
ful for all Juſtices of Peace, in the Eramination of all Matters
offered to them by this Ad, to adminiffer an Dath 02 Daths to any
Witneſs 02 Witneſſes, where the ſame fhall be neceſſary fou their
Infozmation, and for the better Diſcovery of the Truth.
London, Eric Provided allo, and be it enađed, That this ad, oj any Thing
excepred. therein contained, ſhall not ertend to any Tythes, Dulations, Pay-
ments ou Dbventions within the City of London, 02 Liberties there-
of, nod to any other City 02 Cown Corpojate where the ſaine are ſet-
tled by any gå of Parliamient, in that Cale particularly made and
provided.
4;.
P20
ment.
Oath to Wis-
neſſes.
Chap. LV. The Complete Incumbent.
607
be within
Scllions.
Provided always, and it it enađed, That no Complaint foz ol Recovery of
concerning any ſmall Cythes, Diferings, Dblations, Dbventions, Ephes.
02 Compoſitions, vereafter due, walt be beard and determined by any
Coinplaint to
Juffices of the Peace by Uertue of thiş ai, unleſs the Complaint
Hjall he made within the space of Two Pears next after the Times Two Years.
that the ſame Eythes, Dblations, Dbventions, and Compoſitions,
pid become due of payable ; any Thing in this Ad contained to the
contrary notwithltanding.
Provided alſo, and it be enađed, Chat any perſon finding him, Appeal to
her, od themſelves aggrieved by any Judgment to be given by any the Quarter-
Two Judices of the Peace, ſhall and may appeal to the next Gene-
ral Duarter-Seſion to be held fou that County, Riding, City, Town
Coypojate, ol Diviſion, and the Juſtices of the Peace tjere preſent,
op the major Part of them, fhall proceed finally to var and deter-
mine the patter, and to reverſe the ſaid Judgnient, if they fall
ree Caule ; and if the Fluffices then preſent, od the major part of
them, Ball find Caule to confirm the Judginent given by tije fica
Cwo Juſtices of the Peace, they mail then decree the ſame by Dider
of Sellions, and ſhall alſo proceed to give ſuch Coffs againīt the
appellant, to be levied by Diſtreſs and Sale of the Goods and
Chattels of the ſaid Appellant, as to them fhall ſeem juft and rea-
conable ; and no Proceedings od Judgment had, od to be had, by
Uertue of this at, fhall be removed od ſuperſeded by Gertue of any
Writ of Certiorari, Od other Writ out of his Majeſty's Courts at Certiorari.
Weſtminſter, oj any other Court whatſoever, unleſs the Title of ſuch
Tythes, Oblations o2 Dbventions ſhall be in Queſtion ; any Law,
Statute, Cuſtom od Uſage to the contrary notwithſtanding.
Provided always, and be it enađed, That whece any Perſon od If the Party
Perſons complained of for ſubftrading or withholding any ſmall
Preſcription
Cythes, 02 other Duties afojelaid, ſhall before the Juſtices of the or Modus De-
Peace to whom ſtich Complaint is made, inlitt upon any Pieſcrip-
tion, Compoſition, ol Modus Decimandi, Agreement 02 Citle, whereby
he or ſhe is ol ought to be freed from Payment of the ſaid Cythes,
02 other Dues in Dueftion, and deliver the ſame in Writing to the
ſaid Juſtices of the Peace, ſubſcribed by him oz yer, and fhail then
give to the Party complaining reaſonable and iufficient Security to
the Satisfađion of the ſaid Juſtices, to pay all ſuch Coſts and Tas
mages, as upon a Cryal at Law to be had fou that Purpoſe, in any
of his Majeſty's Courts having Cognizance of that matter, ſhall
be given againſt hiin, her 02 them, in caſe the ſaid Preſcription,
Compoſitioni, 02 Modus Decimandi, ſhall not upon the ſaid Trial be
allowed, that in that Caſe the ſaid Juſtices of the Peace, fhall foz-
bear to give any Judgınent in the matter ; and that then and in
ſuch Caſe the Perſon od Perſons ſo complaining, fall and may be
at Liberty to proſecute ſuch Perſon od Perſons for their faid Šub
fraxion in any other Court od Courts whatſoever, where he, the,
02 they might have ſued befove the making of this Aã ; any Thing
in this ax to the contrary notuithftanding.
And be it further enated hy the authority afożeſaid, Chat every. The Judg-
Perſon and Perſons, who fhall by Tertue of this ac obtain any Judg: ment out of
ment, oz againſt whom any Judgment ſhall be obtained befode any Ilu inrolled.
dices of the Peace out of Sefions, foz (inall Tythes, Dblations, Db-
ventions,
inlift upon a
cimardi.
1
Seſſions to be
1
608 The Clergy-Man's Law: Or, Chap. LV
of (mall
pthes.
Recobery ventions, o2 Compoſitions, ſhall cauſe od procure the ſaid Judgment to
be inrolled at the nert General Quarter-Sellion, to be holdent for the
laid County, City, Riding, 02 Diviſion ; and the Clerk of the Peace
foy the ſaid County, City, Riding, oy Diviſion, is hereby required,
upon Tender thereof, to enrol the ſame ; and that he fall not ask 02
receive for the Jnrolment of any one Indgment, any fee od Reward
erceeding Die Shilling ; and that the Judgment ſo incolied, and Sa
tisfa&ion made by paying the ſame Sum ſo adjudged, ſhall be a
good Bar to conclude the ſaid Ređois, Uicars, and other perſons
from any other Remedy fou the laid (mall Tythes, Dblations, Db
ventions, o2 Compolitions, for which the ſaid Judgment was ab
tained.
and be it further enađed by the Authority aforeſaid, Chat if any
Perfon ou Perſons againſt whom any ſuch Judgment od Judgments
If the Party wall be had, as aforeſaid, thall remove out of the County, Riding,
mentremove City, o? Coyporation, after Judgment had as afożeſaid, and befoże
out of the the levying the Sum o Sums thereby adjudged to be levied, the
County,
Juffices of the Peace who made the ſaid Judgment, od one of them,
thall certifie the ſame under his or their Þands and Seals to any
Juttice of Peace of ſuch other County, City, B2 Place, wherein the
Caid perſon or perſons ſhall be Inhabitants ; which ſaid Juſtice is
hereby authorized and required by Warrant under his hand and
Seal, to be direõed to the Contables al Church-wardens of the
Place, od one of them, to levy the Sum od Sums ſo adjudged to be
levied as aforeſaid, upon the Goods and Chattles of ſuch Perion og
Perſons, as fully as the ſaid other Juſtices might have done, it he,
ihe, or they had not removed as aforeſaid, which thall be paid ac
cording to the ſaid Judgment.
Provided always, and be it enađed, That no Wicar oy other per-
con ſhall have Remedy to recover ſmall Tythes, oj other Dues afore-
Caid, which became ou were due vefore the making of this ax, unleſs
Complaint be made to the Juſtices of the Peace, in form afoje:
taid, befove the firſt Day of October, which thall be in the Year of
our Lord 1696.
Cofts againſt
and it is hereby declared and enađed, That the ſaid Juftices of
the Peace who mall hear and determine any of the matters afoje.
plainer.
ſaid, ſhall have power to give Cofts, not erceeding Ten Shillings,
to the Party proſecuted, if they fhall find the Complaint to be
falſe ano veratious; which Cotts ſhall be levied in Panner and
Foim afoleſaid.
Provided alſo, and be it further enađed, That if any perſon od
upon Diſcon- Perſons thall be ſued for any Thing done in Crecutien of this ax,
tinuance, Soc.
and the plaintiff in ſuch Suit mall diſcontinue his a&ion, oy be
nonſuit, ou a Uerdiã paſs againſt him, that then in any of the ſaid
Caſes, ſuch Perſon od Perſons thall recover double Cofts.
Pwvided always, That any Clerk, oj other Perſon od Perſons,
Suit was be- who ſhall begin any Suit for Recovery of ſmall Tythes, Dblations
Exchequer,
02 Dbventions, not erceeding the Ualue of Fożty Shillings, in his
gajeſty's Court of Erchequer, oz in any the Eccleñatical Courts,
thatí have no Benefit by this ad, op any Claule in it, for the
ſame gatter for which he or they have ſo luled.
3
the Com.
Double Cofts
If a former
?
gan in the
SOC.
P20-
Chap. LV.
609
The Complete lncumbent.
The Srature
continucd
A
Provided always, and ve it farther enaked, Chat this sia mail Quakers to
veutlich.
continue for the Space of Chree Ycars, and from thence to the
end of the nert Sellion of Parliament, and no longer. Scat. 7 & 8
W. c. cap. 6.
And by the Statute 10 & 11 W. 3. It is enacted, Whereas an Sx made in
Seventh and Eighty Years of his preſent majeſty's Beigit, Intitu- for Seven
led, An Act for the more ealy Recovery of Small Tithes, bas been by Years, &c.
Experience found very uſeful and necellary, and whereas the ſaid
an was to continuie but Three years, and to the End of the ricrt
Selüon of Parliament, and is now rear erpiring ; 5e it tijers
foze enađed by the King's. Inolt. ercellent Bajeſty, vy and with
the advice and Conſent of the Lord's Spiritual and Temporal,
and Commons in this preſent Parliament afſemivied, and by the su:
thoạity of the ſame, that the ſaid recited at, with all the Clauſos
and powers contained, mhall continue and be in force fou the Space
of Seven Years from and after the Expiration thereof, as afoze-
ſaid, and from thence to the Elid of the next Selion of Parlia-
ment, and no longer. Stat. 10 & 11 W. 3. cap. 15.
It hath alſo been enacted concerning divers Diſſenters commonly called
7 ob S W. 3.
Quakers, That whereas by reaſon of a pretended Scruple of Conſci: cap. 34. to
ence Quakers do refuſe to pay Tythes and Church-Rates, Be it cauſe Quakers
enated by the authojity aforeſaid, that where any Duaker thall re- Tiches
fule to pay or compound for his great 02 (mall Tythes, od to pay any
Church-Rates, it fhall and may be lawful to and foz the Two nert
Juſtices of Peace of the ſame County (other than ſuch Juffice of the
Peace as is Patron of the Church od Chapel, whence the ſaid
Tythes do oz ſhall ariſe, or any ways intereſſed in the ſaid Cythes)
upon the Complaint of ariy Parlon, Uicar, Farmer ou Proprietor
of Tythes, Church-warden 02 Church-wardens who cught to have,
receive oy colle& the ſame by Warrant'under their Hands and Seals,
to convene before them ſuch Duaker od Duakers negleđing or relui-
fing to pay oy compound for the ſame, and to eramine upon Dath,
which Dath the ſaid Juſtices are hereby impowded to adminifter, oz
in ſuch Manner as by this Ax is provided, the Truth and Juffice of
the ſaid Complaint, and to aſcertain and ſtate what is due and pay-
able by ſuch Duaker od Duakers to the Party or Parties complain-
ing, and by Dider under their hands and Seals to direă anid ap- .
point the Payment thereof, ſo as the Sum opdered, as aforeſaid,
do not erceed Ten Pounds; and upon Refuſal by ſuch muaker 02
Quakers to pay accouding to ſuch Dider, it fhall and may be lawful
to and for any one of the ſaid Juſtices, by Warrant under his hand
and Seal, to levy the money thereby ozdered to be paid, by Diſtreſs Diſtreſs upon
and Sale of the Goods of ſuch Dffender, his Erecutois ou admini: Non-pay-
ftrators, rendging only the Dverplus to hini, her oj them, neceſſary
Charges of Diftraining being thereout firſt deduđed and allowed by
the ſaid. Juffice; and any perſon finding him, her oy themſelves ags
grieved by any Judgment given by lich Two Juftices of the Peace,
fhall and may appeal to the next general Duarter-Sellions to be Appeal to the
held for the County, Riding, City, Liberty 02 Cown Coppojate ; Sellions.
and the Juſtices of the Peace there preſent, od the major part of
them, ſhall proceed finally to hear and determine the matter, and to
reverſe the ſaid Judgment, if they fall ſee Cauſe; and if the Ju.
ftices then preſent, or the major part of thein, ſhall find Cauſe
Uuuu
to
ment.
ܪ
610
The Clergy-Man's Law: Or, Chap. LV.
No Diſtreſs
.
Continuance
Tithes.
Quakers to to continue the Juoginent given by the artt Cwo Juſtices of tre
Dan Tithes.
Peace, they mall then decree the ſame by Dader of Sellions, and Maly
alſo pzoceed to give ſuch Coſts aşainſt the appellant, to be levied by
Diſtreſs and Sale of the Goods and Chattels of the ſaid appellant as
to them ſhall ſeem juſt and reaſonable ; and no Płoceedings or Iudg:
ment had uz to ve had by Uertue of this på, (yait de removed 02
ſuperſeded by any Writ of Certiorari 02 other Writ, out of bis Pajc
fty's Courts at Weſtminſter, od any other Court whatſoever, unleſs
the Title of ſuch Tythes fall be in Duettioit.
Provided always, that in caſe any ſuch Appeat be made as afoje.
till Appeal ſaid, no Warrant of Dittreſs thail te granted until after ſuch Appeal
be determined.
Provided that this aä mall continue in Force foy the Space of De:
of this Act. ven Years, and from thence to the End of the next Sellion of Par-
liament, and no longer. Stat. 7.& 8 W. 3. cap. 34. And this Act is
continued by Stat. 13 W. 3. cap. 4, for Eleven Years, and to the End
of the next Seffion of Parliament.
Note laſtly, That this Statute of 2 & 3 Ed.6. and the Two others be-
fore-mentioned, made for the due Payment of Tithes and other
Church-Duties, viz. of 27 H. 8. and of 32 H. 8. do not only extend to
Accuſtoma. Tithes due in kind, but alſo all accuſtomary Payments that ought to
ry Payments be made in lieu of Tithes or other Things not in themſelves titheable,
in lieu of
as Houſes, Rabits, Fiſh, &c. For by the aforeſaid Statute of 27 H.
8. cap. 20, it is provided and enacted, That evežy one of his Sub-
jeas of this Reālın of England, Ireland, Wales and Caleis, and March-
es of the ſame, accofding to the Ecclefiaftical Laws and Didinances
of his Church of England, and after the laudable Ufages and Cus
ftoms of their Pariſh, oj other place where he dwelleth ay occupieth,
thall yield and pay his Cythes and Offerings, and other Duties of
Holy Church, and that for ſuch Subſtraxions of any of the ſaid
Cythes, Offerings Oy other Duties, the Parſon, Uicar, Curate, oz
other party in that behalf grieved may by due Proceſs of the
King's Ecclefiaftical Laws of the Church of England, convent the
perſon of Perſons to offending before his Didinary oz other compe-
tent Judge of this Realm, having Authority to hear and determine
the Right of Tythes, and alſo to compel the ſame Perſon of Per-
Cons offending, to do and yield their faid Duties in that behalf;
that is, as well Modus Decimandi by laudable Uſage and Cuſtoms
of the Pariſh, as Tithes in kind. And with that in Effect
Statute of 32 H. 8. cap. 7. And by the Statute of 2 & 3 Ed. cap. 13.
it is enacted, That every of the King's Subjeãs ſhall from hencefouth
truly and juftly, without fraud ol Quile, divide, ſet out, yield and
pay, ali gannet of their Predial Tythes, in their proper kind, as
they riſe and happen in ſuch manner and form as hath been of
Right yielded and paid within Forty Years nert before the making
of this aa, ol of Right on Cuſtom ought to have been paid. And
after, there is another Branch in the ſaid Act: And be it further elt-
aaed, That if any perſon do fubftrač, or withdiaw any ºannet
of Tythes, Dbventions, pofits, Commodities, or other Duties
befoże-mentioned, dj any part of them, contrary to the true mean-
ing of this ait; ou of any other ađ heretofoje made, (which extends
to the Cuſtom of Tithing, that is, Modus Decimandi mentioned be-
fore in this Act,&c.) that then the Party ſo ſubſtraxing or withdraw-
ing the ſame, mày ój djall be convented and ſued in the King's Eccle-
Hadical
agrees the
1
2
Chap. LV. The Complete Incumbent 611
.
may
laftical Court, &c. And this was ſaid and agreed by Coke and the Tithes ſubs
other Judges concerned in the Caſe de Modo Decimandi, debated be-
fore King Jac. I. Trin. 7 Jac. 13 Co. 41. So that it plainly appears,
theſe cuſtomary Payments may, as other Tithes and Church Duties;
be recovered in the Eccleſiaſtical Court by Force of the ſaid Statutes,
and therefore that all Suits there for ſuch Payments ſhall partake of
the Privileges granted by theſe Statutes, as if the Suit were for the
Tithes in kind.
And it ſeems, that if any Perſon inhabiting within one Dioceſe doth If a Perſon
ſubſtract and withhold his Tithes within another Dioceſe, that a Suit living in one
be commenced and proſecuted in the Court of the Bishop, &c. in ftracts his
whoſe Dioceſe the Tithes are ſo ſubſtracted, and the Party fo ſubſtra- Tithes with-
&ing his Tithes may be there cited and fummoned (although inhabiting Dioceſe
.
within another Diocefe) to appear and anſwer to the ſaid Suit notwith-
ſtanding the Statute of 23 H. 8. c.9, which prohibits, That no man
ner of Perſon thall be from henceforth cited oy ſummoned, oj other-
wiſe called to appear by himſelf or herſelf, oj by any Plocurator be.
fore any Didinary, archdeacon, Commiflary, Dfficial, oz any other
Judge Spiritual, out of the Dioceſs or peculiar Jurisdiâion were
the perſon which thall be cited, ſummoned, oj otherwiſe (as is afore:
ſaid) called, fhall be inhabiting and dwelling, at the Time of awar-
dins, or going fo2th of the ſame Citation or Summons, (except in
Cafes mentioned in the fame Statute:) And this by the ſaid Statute
of 32 H. 8. cap. 7, whereby it is enacted, That in caſe it fhall hap.
per any perſon or perſons of his o their ungodly and perverſe
Will and mind, to detain and withhold any of the ſaid Cythes of
Dfferings, or any part of Parcel thereof, then the Perſon o2 Party
being Ecclefiatical od Lay-Perſon, having Cauſe to demand op bave
the ſaid Cythes 02 Dfferings, being thereby wronged op grieved,
fhail and may convent the Perſon od Perſons (o offending before the
Dadinary, his Commiflary, od other competent Miniſter ol lawful
Judge of the Place where ſuch Wrong fhall be done, accouding to
tie Ecclefiattical Laws: And in every ſuch Cale od Matter of Suit,
the ſame Didinary, Commiflary, oz other Competent goiniffer og
lawful Judge, having the Parties od their lawful Procurators bez
fore him or them, thall and may by Uertue of this a& proceed to the
Examination, Hearing and Determination of every ſuch Cauſe
od Patter ojdinarily O2 ſummarily, according to the Courſe
and Proceſs of the ſaid Ecclefiaftical Laws, and thereupon may give
Sentence accojdingly. So that this Clauſe of the Statute 32 H. 8.
cap. 7, ſeems to repeal the Stat. 23 H. 8. cap. 9, as to this particular
Cafe: See Rogers and Harding's Cafe, 1 Keeble 481, but the contrary
to this ſeems to be held and agreed in the Caſe of Jones v. Boyer,
Trin. Fac. 2. C. B. that the Suit in ſuch Caſe is to be brought in the
Dioceſe where the Defendant inhabits, and not where the Tithes are
payable. But Paſch. 15 Car. 2. C. B. in the Cafe, Weſtcote v. Har-
ding, Prohibition was granted for citing the Party out of the Dioceſe;
but it appearing to be in a Suit for Tithes of Land lying within the
Dioceſe, a Conſultation was awarded by the Court, for that the Suit
can be in no other Place than in the Dioccfe where the Lands lic, let
the Party live where he will; and it was held this was not a Caſe
within the Statute 21 H. 8. i Levinz Rep. 96, as in the like Cafe, a
Suit for a Legacy may be in the Dioceſe where the Will is proved, altho'
Uuuu 2
the
612 The Clergy-Man's Law: Or, Chạp.LV .
cimandi.
Whercforc a
ſued for in
itical Court.
Bodus De- the Defendant live in another Dioceſe, he may be cited there notwith-
ſtanding the ſaid Statute. Hill. 24 & 25, Car. 2. B. R. 1 Ventris 233,
and fo the Caſe of Etheridge v. Etheridge, Hill. 27 & 28 Car. 2. B. Ř.
3
Keeble 619.
And that a Modus Decimandi may be ſued for in the Spiritual
Modus Decin Court, alſo further appears; for the Act Circumfpe&te Agatis giveth
mandi may be
Power to the Eccleſiaſtical Judge to ſue for Tithes due in Kind,
the Ecclefia- o: by Cuſton, (that is a Modus Decimandi); fo as by Autho
rity of that Act, (altho' that the yearly Sum foundeth in the Tem-
porality which was paid by, Cuſtom in Diſcharge of Tithes,) yet
becauſe the ſame cometh in the Place of Titheș, and by. Conſtitution
the Tithes are chang'd into Money, and the Paſſon hath no Remedy
for the fame (which is the Modus Decimandi) at the Common Law,
this A&t makes the Modus recoverable in the Eccleſiaſtical Court, as
was agreed in the Caſc de Modo Decimandi, Trin. 7 Jac. 13 Coke
41.
And whereas it hath been urged by the Civilians, that the Cuſtom
de Modo Decimandi is of Eccleſiaſtical Juriſdiction, and Conuſance;
for it is a manner of Tithing, and all manner of Tithing is of Ecclcfi-
aſtical Juriſdiction; and therefore as they ſaid, the Judges in their
Anſwer to certain Objections made by the Archbiſhop of Canterbury'
,
have confeſſed that Suits may be had in the Spiritual Courts pro Modo
Decimandi, &c. It was anſwered thereunto, and reſolved by the
Temporal Judges; That Satisfactio pecuniaria of it ſelf is 'Tem-
poral: But for as much as the Parſon hath not Remedy pro Modo
Decimandi at 'the Common Law, the Parſon by Force of the Acts
cited before, might ſue pro Modo Decimandi, in the Eccleſiaſtical
Court: Caſe de Modo Decimandi, 13 Coke, fol. 44. See Dr. Grant's
Caſe, 1 i Coke 16, and 2 Roll's Abridgment 305. Accordingly, when
Ifupon a Suit a Prohibition was pray'd to ſtay Proceedings in the Spiritual Court up-
on a Suit there for a Modus Decimandi, becauſe the Defendants there
thermodus ſuggeſted another Modus Decimandi, and that they refuſed to receive
being fugge- it; Dodderidge Juſtice faid, the Modus Decimandi is as well due to
fted and re- the Parfon, as Tithes are at the Common Law; and if the Parſon doth
hibition lies libel in the Spiritual Court for a Modus Decimandi, (as he may do)
and another ‘Modüs is there ſuggeſted, and this refuſed, they may
there try and determine this Matter touching this Modies, and no
Cauſe to grant a Prohibition for this Refuſal: But if they do there re-
fuſe the Suggeſtion for the Modus, upon a Matter wherein their Law
and our Law do differ, as in the Point of Proof, for Default of Two
Witneſſes, whereof one being allowable in our Law, but not with
them; in this Cafe a Prohibition is to be granted, but otherwiſe they
may as well try the Modus Decimandi as the Right of Tithes. To
which Haughton Juſtice replied, 'That they were not to be ſuffered by the
Common Law to try a Modus Decimandi there, but that they were to
be prohibited. But Dodderidge ſaid as before, That if there were a
Difference in their Proceedings, betwixt their Law and the Common
Law, and this be the Ground of the Refuſal of the Allegation, they
are to be prohibited. But being moved at another Time, Dodde-
ridge held as before; but granted, that if the Difference be touch-
ing the Matter of the Proof wherein their Law and the Common
Law differs in the Manner of the Proof by Witneſſes, and they will
not allow of the Proof allowable by the Common Law, (viz.) of
Witneſs as fufficient, they are to be prohibited; and ſo ſaid he is, i
R. 3. and 10 H. 7. Alſo he ſaid, if a Parfon doth libel there for
there for a
or not.
a
I
cimandi.
Prohibition
poſition of late Time between the Parſon and Pariſhioners to pay.
Chap.LV The Complete Incumbent. 613
a Modus, whereas in Verity there was no Modus, but only a Com- Podus Des
fo
much yearly for Tithes, and not otherwiſe ; in this Cafe, becauſe that
their Law and our Law do differ in Point of Preſcription, for with
them 10 Years Continuance (as he faid) being a good Preſcription, but
not ſo by our our Law, they are to be prohibited. But Haughton
held as before, That a Modus Decimandi is properly to be tried and
determined at the Common Law, and not by them in the Spiritual
Court; for that their Law and the Common Law differ in Point of
Proof of a Modus, and in the Point of Preſcription. Yet Croke held
with Dodderidge, ſaying, A ſpecial Modus being libelled for there, is
there to be tried; but if they differ there in a Temporal Matter, they
are then to be prohibited, this being triable by the Common Law.
So the Court declared they would ſee the Suggeſtion ; and by the
Rule of the Court they were to make their Suggeſtion, and to ſhew
the ſame to the Court as they would ſtand by it; and in the mean
Time the Suit in the Spiritual Court to be ſtay'd. Mich. 14. B. R.
Harding & al againſt Goſling. 3. Bulft. 251.
But this Caſe is reported differently by Rolle who faith, that the It ſeems a
whole Court agreed, that a Parfon may libel in the Spiritual Court
lies, if the
upon a ſpecial Modus, and that no Prohibition lies; but becauſe the Spiritual
Spiritual Court had rejected the Proof of another Modus which was
alledged, a Prohibition was granted, and alſo becauſe the Parfon had other Modus
miſtaken his Modus : And further that it was agreed, that the Spiri- alledged.
tual Court ſhall not try the Modus for the Reaſon mentioned by
Haughton, (viz.) That if one libel upon a different Modus, and the The Reaſon
Defendant pleads there is another Modus that is triable at the Com- given.
mon Law, becauſe otherwiſe the 'Temporal Court will be defeated of
all Juriſdicton; for the Parſon may ſuggeſt one falſe Modus to a great
Value on Purpofe to take away the Temporal Juridiction. Mich. 14
Jac. B. R. Goſling v. Harding, 1 Roll's Rep. 419. To which Rea- Anſwer to
fon given by Haughton, it may be anſwered, That if a Parſon libel
for a Modus which he cannot prove, he will fail of his Purpoſe; and be the Spiritnat
condemned in Coſts, otherwiſe an Appeal may be had; and if the
Defendants there ſuggeſt, and prove another Modus 'tis fit it ſhould be
allowed; and if thereby the Temporal Juriſdiction loſe the Tryal of the
the true Modus, they have no Wrong, for that the Tryal of ſuch a
Modus, by four Acts of Parliainent, (as was confeſſed by the Judges
when before the King and Council) doth belong to the Ecccleſiaſtical
Juriſdiction, as is before ſhewed; but if the Suggeſtion of a different
Modus from what is ſet forth in the Libel, ſhall ouſt the Ecclefiaftical
Courts of the Juriſdiction, this may be done by every Defendant that
is ſued for any Modus there, and ſo no ſpecial Modus how true and
notorious foever it be; may with Effect be ſued for there, unleſs the
Defendant pleaſe ; which may be more prejudicial to the Eccleſiaſti-
cal Courts than the other Practice can be to the Temporal; becauſe
(as is faid) the Right of hearing and determining Suits for a Modus
doth belong to the Spiritual Courts, and ſo the Temporal Courts loſe
nothing which they originally had.
Court re-
fuſe the
the Rcaſon
on behalf of
Court,
ܪ
С НА Р.
614
The Clergy-Man's Law: Or, Chap. LVI.
Luttons
Err. fol
Tiches.
СНА
H A P. LỢI.
Cuſtom or Preſcription, if triable in Spiritual
Court. Prohibitions, if to be granted to
prevent ſuch Trials.
Ecclefiafti-
cal Courts
Lthough the Eccleſiaſtical Courts be confirmed and aided by the
aforefaid Statutes as to their Authority of holding Plea of T'ithes
to keep with, of all Sorts, and of all other Church-Duties; yet theſe Statutes do pro-
Bounds, by vide, that the ſaid Courts ſhould keep within the Bounds of Juſtice
27 H. 8. c. 20. and due Limits of Juriſdictions;
and accordingly by the Statute of 27
H. 8, cap. 20, it is provided. That every perſon and Perſons, be:
ing Party or Parties to any ſuch Suit, fhall and may make and have
his and their lawful Adion, Demand of Proſecution, appeals, Pro-
hibitions, and all other their lawful Defences and Remedies in e
very ſuch Suit, accouding to the ſaid Ecclefiaftical Laws, and Laws and
Statutes of this Realm, in as ample and liberal manner and form
as they on any of them inight have had, if this då had never been
made: Any Thing in this aã above written notwithſtanding. And
alſo by the Statute of 20 3 Ed. 6. cap. 13, by which the former Sta-
tute is confirmed, 'tis provided and enacted, That this ad, or any
Ching therein contained, fhall not ertend to give any Miniſter oz
Judge Ecclefiaftical, any Jurisdiâion to hold Plea of any matter,
Caule Thing, being contrary or repugnant to or againſt the Effex,
Jutent ou Meaning of the Statute of Weſtminſter Second, the fifth
Chapter, the Statutes of Artciuli cleri, circumſpecte agatis, Silva cædua,
the Treatiſe, De regia prohibitione, nie againt the Statute of Anno
primo Edwardi tertii, the tenth Chapter, on any of them, ne yet hold
Plea in any Patter whereof the King's Court
of Right ought to have
Juriſdi&ion; any Thing therein contained to the contrary in any wiſe
notwithftanding.
In the 16th Jac. a Modus being ſued for in the Eccleſiaſtical Court,
a Prohibition was granted, becauſe the Defendant there denied the
Party denied Modus: And the Court faid that the Modus Decimandi muſt be
ſued for, soc. ſued for in the Eccleſiaſtical Court as well as the very Tithe, 2 R. 3.
3. a. and if it be allowed between the Parties, they ſhall proceed
there; but if the Cuſtom be denied, it muſt be tried at the Common
Law; and if it be found for the Cuſtom, then a Conſultation muſt
go, otherwiſe the Prohibition ſtandeth. Trin. 16. Jac. Rot. 3110. Scot
v. Wall. Hobart 245, and the like was reſolved by the Court upon a
Suit for a Modus by the Shock, and not by the Sheaf. Hill. 22 7ac.
B. R. Steward's Cafe, Noy 81. Hill. 4 Car. C. B. Hetley 133. And
Fiſh, &c. due in the 3 Car. when one libelled in the Eccleſiaſtical Court for Tithe
meerly by of Fiſh, (which is due meerly by Cuſtom) and the Defendant plead-
ed, that 'Time out of Mind they had paid no Tithe of Fiſh; and a
Prohibition being prayed, Richardſon replied, that it is meerly an ac-
cuſtomary Tithe, as Rabbets, Gc. whereof no Tithes are due by the
Law of the Land, fee Keeble 602, and that a Prohibition ſhall not be
granted; yet the other Juſtices faid, a Prohibition ſhall be granted, be-
caufi
Prohibition
where the
Tithe for
I
Chap. LVI. The Complete Incumbent. 615
Lither.
ry
Det ain.
tion.
cauſe the Cuſtom ought to be tried by the Common Law; and they Cuffoms fo2
made a Difference between Modus Decimandi, which is alſo cuſtonia-
where the Cuſtom only makes the Duty, and where there is a
T'ithe precedent due, and that Modus converts it into another Duty,
there no Prohibition ſhall be granted, but it ſhall be tried in the Ec-
cleſiaſtical Court whether there be fuch Modus Decimandi or not,
which Difference was agreed by Twiſden jutt. Hill. 20 & 21 Car. 2.
in the Caſe of Philips v. Clever, 3 Keeble 452. But if a Parſon li- When after a
bel for a Modus to pay 3d, and it be alledged that the Modus is but ed, the Spi-
for 2 d. this ſhall be tried by the Common Law; but when the Cu- ritual Court
ſtom is tried, then they in the Ecclefiaftical Court may proceed up-
mayproceede
on it. Pafch. 3 Car. B. Anonymus, Hetley, p. 13. And about the 3
Car. when a Modus to have Two Shillings in the Pound for every
Houſe and Shop in the Town was ſued for in the Spiritual Court; a
Prohibition being prayed, the Court ſaid, that a Parſon may ſue 1.r
à Modus Decimandi in the Ecclefiaftical Court; but if it be denied, ſaid
the Chief Juſtice and Fores, they cannot proceed, becauſe they cannot If the Modus
try
the Matter of the Preſcription there, and if they proceed, a Pro- be denied,
hibition lies : But in this caſe no Prohibition was granted, becauſe Court cannot
the Defendant had only anfwered to the Cuſtom, quod non Credit elle proceed.
And (as Dodderidge faid) this is no Denial of the Preſcription
for that that ought to be done by Way of Allegation ; and Noy ſaid,
that their Form of anſwering to Articles, is (as before) 12012 Credit,
&c. but if the Defendant there will deny the Preſcription, he ought to be by Way
Denialought
to come by Way of Allegation, and Jones accorded, Clark v. Prowſe
, of Allega-
B. R. Latch 210. So when the Parſon of B. in Landon libelled in the
Spiritual Court upon a Cuſtom, that if a Pariſhioner of B. dies in B.
and is carried and buried in another Pariſh in London, there ought to
be given to the Parfon thereof a Gown, Pulpit-Cloth, and a pair of
Gloves ; 'twas held that a Prohibition lies to try this Cuſtom, if it be
denied, becauſe a Cuſtom may be made in a ſhorter Time according
to the Spiritual Law than at the Common Law. Trin. 15 Car. B. R.
Cooker Parſon of St. Thomas Apoſtles, and Goale, ?, Roll's Abr: 307.
nu. So that by theſe laſt Cafes, a Parſon may only begin a Suit in
the Eccleſiaſtical Court for a Modus, but not purſue it, or recoyer
any Thing there, unleſs his Adverfary confent to it; for that a Cuſtom
de modo Decimandi is not of Eccleſiaſtical Jurifdi&ion, or Cogni-
zance; that is, though a Modus may be ſued for there, yet they may
not try it there: And if the Caſe be ſo, no one that claims a Modus,
has any ſufficient Reaſon to begin in the Spiritual Court for it, be-
cauſe (as is declared in the aforeſaid Caſes) when the Defendant ſhall
by way of Allegation, either deny the Modus ſued for, or ſuggeſt an-
other Modus, the Eccleſiaſtical Judge is bound to ceaſe his Proceed-
ings; and if he do this, (as they ſay by their Law he ought to do, to
avoid a Contempt) as no Inhibition lies upon an Appeal for the Plain-
tiff for this Cauſe, ſo no Prohibition lies for the Defendant; or if
there did, he has no Rcafon to ſue for one, ſeing the Plaintiff's Suit is
at an end, and he has no Means to recover any Thing of him.
But it is to be obſerved, that the firſt of theſe Caſes, in which a Obſervations
Power to try ſuch Modus is denied to Eccleſiaſtical Courts, in the 14 nom de Moda
Fac. at the latter End of Mich. Term, and at the Beginning of the Decimandi.
Taid 'Term it was otherwiſe held in the fame Court in Reynolds and
Newberry's Cafe, 1 Roll's Rep. 420, when Mountague was made Lord
Chief Juſtice in the Room of Coke, (viz.) about Seven Years after
the
616
The Clergy-Man's Law: Or; Chap. LVI.
Cuſtoms foz the Debate was before the King and Council betwixt the Spiritual and
ithes.
Temporal Judges, and above Sixty Years after the laſt of the Statutes
before-mentioned was made in favour of the Eccleſiaſtical Courts
in this Point. And when the Debate was betwixt the Judges Spiritual
and 'Temporal upon this Queſtion, Whcther when a Suit is begun in
the Spiritual Court for Tithes in kind, and a Modus Decimandi is
fuggeſted, by which the Lands are diſcharged, a Prohibition lies to try
the fame at Common Law, it ſeems the Civilians had never known
or heard of Prohibitions, when á Suit is begun for a Modus; for if
otherwiſe, they would not have ſaid (as they did) that the Cuſtom de
modo Decimandi is of Eccleſiaſtical Juriſdicton and Conuzance, and
ſhall be tried before the Eccleſiaſtical Judges, and argued from thence
as from an unqueſtioned and granted Ground or Principle. And the
Temporal Judges, if they had held and adjudged the contrary before,
would not have anſwered by Way of Conceſſion (as Coke reports they
did) viz. that a Parfon by Force of the Acts cited before, might fue
pro modo Decimandi, and compel the Defendant to yield as well the
Modus Decimandi, as if the Suit were for the Tithes in kind, and
only denied the Confequence the Civilians would draw from thence,
ſaying, that this did not prove that if a Suit be for Tithes in kind,
which are extinct, and the Land dicharged, that upon a Suggeſtion de
modo Decimandi a Prohibition ſhould not lic; but rather they would
have replied, (as the late Cafes ſpeak) that à Cuſtom de modo Deci-
mandi is not of Eccleſiaſtical Cognizance, and that if they did try a
Modus when denied, a Prohibition did lie. And what the Judges did
declare upon fo folemn an Occaſion, is much to be depended upon in
judging what the Law then was, eſpecially when ſome of the Judges,
who being eminent for their Learning in the Law; and Knowledge of
the Practice of the Courts, if Prohibitions had been uſually granted,
and ought to be, could not in fo common a Cafe but know thereof,
have gainſaid againſt the Intereſt of their Courts, and againſt the Opi .
nion of others that did grant them, as Dodderidge and Croke in Har-
din and Goſlin's Cafe, 3 Bulſtr. 241, and Richardſon in the Anonymus
Cafe, Hetley p. 13.
Nor may it be faid, that theſe Judges by their Conceſſions did only
tion from the intend, that a Parſon by Force of the ſaid Acts might ſue pro Modo
Modus being Decimandi, but not that the Judge ſhould proceed in the Suit in cafe
the Modus be denied; for firſt, 'tis granted by them that the Statutes
before cited in the Clauſes, declaring that all manner of Tithes and
other Church-Duties ſhall be ſued for in the Eccleſiaſtical Courts, do
extend as wellto a Modus Decimandi as to Tithes in kind. And the Sta-
tute of 27 H. 8. faith That Tythes ſhall be paid accouding to the lauda-
ble Alases and Cuſtoms of the Pariſh, and that foj ſubftrawing any
of the ſaid Tythes, Dfferings op other Duties, the Parſon inay not
only convent the Offender before the Dedinary, but alo compel him
to yield the ſaid Duties, (that is, as the ſaid Judges expounded the
faid Words,) as well Modus Decimandi, as the Tithes in kind, and
with that in Effect agrees the Statute of 32 H. 8. cap. 7. So that
what is 'enacted thereby in their Judgments extends alſo to a Modus
Decimandi, as well as to 'Tithes in kind; and 'tis plain that it doth fo,
for the words thereof are, That all and ſingular the Tythes fall be
paid according to the lawful Cuſtoms and Uſages of the Pariſhes and
Places where ſuch Tythes of Duties ſhall grow, ariſe, come oy be
due, and that the Party grieved may convent the Perſon offending
before
d Obferva-
denied.
2
Chap. LVI. The Complete Incumbent. .
617
befože the Didinary, and alſo (which come cloſe to this Doubr) that in Cultom of
every ſuch Caſe od Datter 02 Suit, the ſame Didinary, &c. (as the
Titres.
Words are) fhall 02 may by Wertue of this lå proceed to the Erami:
nation, bearing and Determination of every ſuch Caule of Patter
ordinarily od ſumarily accouding to the Courſe and proceſs of the
ſaid Ecclefiaftical Laws, and thereupon may give Sentence accou-
dingly. And by Statute of 2 do 3 Ed. 6. 'tis faid, as to all manner
of Predial Tithes, That they ſhall be paid in ſuch manner, &c. as of
Cuſtom and of Right they ought to have been paid. And after in
another Branch thereof, 'tis enacted, That if any perſon do ſubftraã
02 withdraw any manner of Tythes, Dbventions, Profits, Commo-
dities oz other Duties before-mentioned, oz any part of them, which
(fay the aforeſaid Judges) extends to Cuſtom of Tithing, that is Modus
Decimandi mentioned in this Act, &c. contrary to the true 9eaning
of this då oj any other då heretofore made, viz. 27 & 32 H. 8. that their
the Party lo fubftraâing thall be convented and ſued in the Ecclel:
affical Court, &c. to the Intent the King's Judge Eccleñatical fall
and may then and there hear and determine the ſame according to the
King's Eccleüaftical Laws, (viz.) the fame Suit, as well for a Mo-
dus as Tithes in kind, for by the ſaid Judges thefe Clauſes in theſe
Statutes entirely extend as much to the one as to the other.
When a Parſon libelled in the Spiritual Court for a Way, and it Cuſtoms and
was ſuggeſted that the Libel fet forth, That by the Cuſtom of the Preſcripti:
County of Devon, when the Graſs is cut and put into Grafs-Cocks, the Spiritual
the Tenth Cock ought to be aſſigned to the Parſon for his Tithe, and Court.
that he might by the Cuſtom make it into Hay upon the Land of the
Party, and that he was hindred by the Defandant, the Owner of the
Land, of his Way to come to make it into Hay; the Court adjudged
that no Prohibition did lie, for that it is an Acceſſary to the Thing that
is Spiritual, and Fitz. Nat. Br. is, that the Parſon may have his
Action upon the Cafe for the Diſturbance. But in this Caſe it was al-
ledged further for a Prohibition, that the Cuſtom of the County is, that
the Parſon ſhall not make his Tithe-Hay upon the Land, but carry it
away preſently, and by this Libel in the Spiritual Court they would
alter the Cuſtom, which is to be tried at the Common Law; but not-
withſtanding the Court would not grant a Prohibition. Mich. 14 Fac.
B. R. Reynolds v. Newberry, Roll's 1 Rep. 420. Now this Cafe
feems to prove that when this Eccleſiaſtical Court hath Juriſdiction of
the Principal, the Acceſſory, though it be a Preſcription, may there be
fued for, and if denied ſhall be tried there, it being granted in the
Books, that not only Suits for ſtopping of Ways to carry Tithes may
be in Court Chriſtian. Trin. 43 Eliz. Blackwel's Cafe, 3. Cro. 843.
Mich. 14 Fac. B. R. Reynolds v. Newberry, Roll's Rep. 420; but alſo of Ways.
if the Queſtion be, which of Two Ways is the uſual and accuſtomary
Way? that ſhall be tried there. Hill.6 Car.B. R.Halſey v. Halſey, Jones
230. Which alſo proves, that a Preſcription upon which a Libel may
be grounded in the Eccleſiaſtical Court, may alſo be tried there, for
to try whether the Defendant hath ſtop'd the right Ways, or which of
Two Ways is the accuſtomary Way, is to try the Cuſtom or Preſcrip-
tion, for they can go upon nothing but the Examination and Proof of
long Uſage, which makes the Preſcription that gives the Right, and
accordingly is the Sentence to be given. See Chap. 57.
:
Хххх
Beſides
!
618 The Clerg :Man's Law: Or, Chap. LVI.
Cuſtoms of
Churchio,
Duties.
a Cuſtom to
have ſuch
Beſides in the Statute of Circumfpe&te Agatis made 13 Ed. 1. where
. it is determiñed that Tevérál Things are meerly Spiritual, and are to be
demanded in the Spiritual Court, and the Spiritual Judge ſhall have
Concerning Power to take Knowledge thereof, notwithſtanding the King's Prohi-
bition : One Article is
, it a Patlon demand Portuaries in a place
Things for a where a mortuary hath been uſed to be given by folce of this article,
Mortuary. (and before the Statute of 21 H. 8. cap. 6. was made) if Doubt did
ariſe, whether there was a Cuſtom in a :Place to have ſuch Things
for a Mortuary, this Cuſtom was triable in the Spiritual Court, Fitz.
Nat. Br. 51 & 53. 10 H. 4. 2. 13. R. 1. 2. Juriſdi&tion 20. Ġ Kel
way fol. 110. b. and that this was the Law before the ſaid Statute of
er H: 8. was granted on all' Hands, and by Jones and Whitlock held
to be ſo now notwithſtanding the "faid Statute. Mich. 7. Car. B. Ri
Margaret Hind v. Epiſcopum Ceftria, 1 Cro. 237. See Articuli Cleri,
9 Ed. 2. cap. 1. Trin. 17 Car. 2. Mark v. Guilbert, i Sid. 263, the
fame Cafe, i Keb. 919. Mich. 24. Car. 2. John v. Lloyd, 3 Keb.,
75. 2 Keb. 835; 867.
Another Article in the ſaid Statute of Circumſpecte Agatis, is, That
Concerning, ff a Prelate of a Church og patron demands a Penſion due to bin,
of a Pention. all ſuch Demands are to be niade in the Spiritual Court ; and ac-
cordingly it hath been held, that though the Libel fhews, that tanz
per realem compofitionem quam per antiquam & laudabilem conſuetu-
dinem iple & Predeceffores
, jui habueruni 5 habere confueverünt üni-
nualem penſionem, &c. And ſo as was urged, the Penſion was demanded
upon Temporal Grounds, viz. Preſcription, and real Compoſition ;
yet Coke and the reſt of the Juſtices held, that a Prohibition ought
not to be granted. Trin. 1o Fac. C. B. Sprat v. Nicholſon, Godbolt,
Trix. 41 Ēliz. B. R. Collier's Cafe, 3 Cro. 675. See 11 H. 4. 85..
Fitz. Nat. Br. 41, Paſch. 35 Eliz. Croker and York v. Doriner,
Popham's Rep. 23. Goodwin v, the Dean and Chapter of Wells, Noy
16. Bülbrook v. Brigs, 2. Cro. 217. And a Prohibition was denied,
for that a Penſion is a Spiritual Thing recoverable in the Spiritual
Court; and yet a Title to a Penſion, if ſuable at all in the Spiritual
Court, muft depend upon Preſcription, and if denied, the Preſcription
muſt be tried there before the Penſion can be recovered. And ſo up-
on a Motion for a Prohibition to the Spiritual Court in a Suit there
for a Penſion, it was held by the Court, that the Law is according to
Fitz. Nat. B. 51. b. that if the Penſion be by Prefeription, 'tis in the
Election of the Party to fue for it in the Spiritual Court as for a Pen-
fion, or at the Common Law as for an Annuity. And it was further
faid, that the Opinion of the Lord Coke, 2 Inft. 491, 492, is not war-
ranted by the Books by him there cited; but Windham and Twiſden
Juſtices ſaid, that in the Time of King James it was adjudged that
for a Penſion by Prefcription, Remedy ſhall be only at the Common
Law; therefore the Reporter makes a Quare of it. Trin. 15 Car. 2.
I Sid. 146 · But afterwards it was refolved by Keeting and Twiſden
Juftices that Penſions by Preſcription may be fued for in the Spiritual
Court at the Election of the Party, and although in the Caſe then be-
fore them the Preſcription was denied, yet would they grant no Pro-
hibition. Mich. 26 Car. 2. Smith v. Biſhop of Lincoln, 2 K.eb. 439,
802, and 1 Ventris 3. But afterwards it was held, that although a
Suit may be in the Spiritual Court for a Penſion, yet if it be denied to
be Time out of Mind, Bc. a Prohibition ſhall go, for that the Pre-
fcription
2
Chap.LVI. The Complete Incumbent.
619
fons,
Thar allPre-
tried in the
ſcription ſhall be tried by the Temporal Courts. Mich. 26 Car. 2. Suits bis
i Ventris 265. See the fame Bcok i20, and 3 Keb. 562. See before fiorentinaro
Clocap. 5 3
By all which it appears that Preſcriptions in all Cafes are not to be
tried in the Temporal Courts, in regard that by the faid Statute of Cir- fcriptiorisara
cumſpecte Agatis, Preſcriptions for the Payment of Mortuaries and fen- not to be
fions are triable and determinable in the Spiritual Court, and this hath Temporal
been owned, and allowed by ſeveral Judgments in the Temporal Courts.
Courts, and Opinions of the Judges; it will be difficult therefore to
apprehend the Reaſon why a Modus Deci mandi may not be tried alſo
in the Spiritual Court, eſpecially there being this Article in the ſaid
Statute of Circumſpecte Agatis, That if a Parlon demand of his pas
rithioners Dblationis on Tythes due and accuſtomed, the Spiritual
Judge ſhall have power to take knowledge not with&anding the King's
Prohibition. And by Coke and the other Juſtices. Mich. 7 Jac. in the
Cafe de Modo Decimandi, this Statute is acknowledged and expounded
to give Authority to ſue for a: Modus Decimandi in the Ecclcfiafti-
cal Courts, and by the faid Act their Proceedings are not to be ſtopt
by a Prohibition to bring the Trial of the Modus to the Common
Law. And Keeling and Twiſden Juſtices would not grant a Prohibi-
tion in a Suit for a Modus where the Modus was denied. Smith v. Bi-
ihop of Lincoln. 2 Keb. 439, 802. I Ventris 3. Yet afterwards we
find the Court of Opinion, that wherever the Cuſtom is denied, a Pro-
hibition ſhall go. 3 Keb. 523, 527, ſame Cafe. [ Ventris 274. Sce
i Ventris 120, 265. 2 Keb. 41, and 3 Keb. 562.
And it is further to be obſerved, that in the fame Article concern- Concerning
ing Tithes in the ſaid Statute of Circumſpecte Agatis, it is ordainel Suits be-
and eſtabliſhed, That if any Parlon doth ſue againſt another Parfon tween Two
fod Cythes greater of ſmaller, ſo that the fourth part of the Walue Perſons for
of the Benefice be not demanded, the Spiritual Judge ſhall have Pow: Tithes.
er to take knowledge notwithſtanding the King's Prohibition, and
with this agreeth the 38 Ed. 3. 6, where it is faid, that where the.
Right of Tithes comes in Debate between Two Spiritual Perſons, the
one claiming the Tithes as of conimon Right within his Pariſh, and
the other claiming to be diſcharged by real Compoſition, the Eccle-
fiaftical Court ſhall have Juriſdiction of it: Which Cafe was vouched
by Bacon, and agreed by Coke. Mich. 7 Fac. in the Caſe de modo
Decimandi. Coke 13 Rep. 39. And in an Action of Treſpaſs by one
Parſon againſt another Parſon, if the Defendant claim as Tithes ap- so upon an
pertaining to his Parſonage, the Court ſhall be ouſted of. Juriſdiction, Action of
for the Debate being between Two Parſons, it ſhall be intended that twech Two
it is for the Right of Tithes. 38 Ed. 3. 5.b. 2 Roll's Abr. 308. nu. Parſons.
2. And Richardſon ſaid, the Books make a Doubt where the Suit is
between the Servant of the Vicar and the Parſon, but it ſeend to
him to be all one. Mich. 3 Car. C. B. Comin's Cafe. Hetley 60. So
when a Vicar ſued for Tithes againſt a Parfon appropriate (who was Between Vi-
a Lay-man) in the Eccleſiaſtical Court for the Tithes of Saffron, and car and Par-
alledged that Time out of Memory, &c. the Vicars have had Tithes hibition.
of Saffron within that Pariſh : And the Parſon pleaded, that he and
his Predeceſſors had uſed to have Tithes of Hay and Çorn of this
Land till within 40 Years laſt paſt
, when it was ſowed with Saffron ; it
was ſaid that no Prohibition ſhall be granted to try this Cuſtom, but
it ſhall be tried in the Eccleſiaſtical Court; for that it is between
the Parſon and the Vicar, although the Farmer was made Party, for
X X X X 2
they
)
620
The Clergy-Man's Law: Or, Chap. LVI.
very
tulen Par:
(018, Soc.
Il,
7.
Suits ves they may well judge of it, and of the Compoſition; and this
Point was adjudged between Hunt and Buh. 30 Eliz. and that the
Party ſhould have a Conſultation. Hill. 43 Eliz. Benefield v. Feek.
Gouldsborough 149. 2 Roll's Abr. 310. nu. 5. So when the Parfon of
Great Fakerzham brought an Action of Treſpaſs againſt the Parfon of
Harmington ; and the Queſtion was, If the Parfon of one Pariſh claim
by Preſcription a Portion of Tithes out of the Pariſh of another, if the
Spiritual Court ſhall have Juriſdiction for the Trial of it ? And the
Opinion of the whole Court was, that it ſhould, becauſe that the
Matter is betwixt Two Spiritual Perſons, and concerning the Right of
Tithes. Paſch. 29 Eliz. C. B. the Parfon of Fakenham's Cafe. i Leo
nard 59. Írin. 11 Jac. B. R. and per Cur. 2 Roll's Abr. 310. nu.
2. vide 35 H. 6. 39, and Br. Juriſdict, 3: Where in Treſpaſs for
taking of Tithes, the Defendant claimed them as Parſon and within
his Pariſh, and the Plaintiff preſcribed that he and his Predeceſſors,
Vicars there, have had the Tithes of that Place Time out of Mind,
&c. And the Opinion of the Court was, that the Debate being be-
tween the Vicar and the Parſon, who are Spiritual Perſons that
may
try the Right of Tithes, therefore the Temporal Court ſhall be ouſted
of the Juriſdiction. See alſo 6 Ed. 4. 3. 22 Ed. 4. 23, 24. 31 H. 6.
between a Parſon and the Servant of another Parſon, 67
H.
35. 35 H. 6. 39. b. between a Parfon and a Parſon's Tenant in Tref
paſs, where the Lay-man ſet forth his Title as Tenant, and pleaded
to the Juriſdiction of the Court : And by Gaſcoign, the Suit fhall be
in the Spiritual Court, becauſe that the Right of Tithes ſhall be tried
only in the Spiritual Court betwixt Spiritual Perſons, fee Mich. 11 Jac.
B. R. 2 Bulſtrode 157. Mich. 5 Jac. Roll's 2 Abr. 310. nu. 1. Irin.
11 Jac. B. R. per Cur' ibidem. nu. 2, and Mich. 14 Jac. between
Adams and Sir Thomas Vevafour v. Hubertſon, ibid. nu. 4 Mich. 28
G. 29 Eliz. between the Vicar of Pankridge and Buley, ibid. 114. 6,
and Godbolt, Trin. 31 Eliz. Botham v. Cooper. 3. Cro. 136. Mich. 29
30 Eliz. B. R. Savell v. Wood. 3 Cro. 71, and 1 Leonard 94.
Trin. 30 Eliz. B. R. Gatehouſe and Penn's Cafe. i Leonard 128.
Paſch, 2 Jac. C. B. Randal v. Knowles. Noy 147. Mich. 35 36
Eliz. B. Ř. Sherborn's Cafe, 3 Cro. 306,
Now in regard that the Words of the ſaid Statute of Circumſpecte
Prohibitions Agatis as to this point only are, 38 any Parlon doth ſue againſt
ano-
ted in Suits ther Parſon for Cythes greater oz (maller, ſo that the fourth part
between
Spi- of the Calue of the Benefice be not demanded, the Spiritual Judge
Fimal Per- fall have power, &c. and ſo only gives the Spiritual Court the Cog-
nizance of the Right of Tithes betwixt Spiritual Perſons, not of Pre-
ſcriptions exprefly; and yet by the Judgments relating to this Matter
both Ancient and Modern, the Spiritual Courts have been allowed to
try, and finally to determine the Right of Tithes between Spiritual
Perſons, though they ground their Titles upon Preſcription (as for the
moſt Part they muſt) and fo to try the Preſcription ; but it is ſaid by
Coke, that the Reaſon why Prohibitions are not granted in Suits be-
tween Spiritual Perſons, as Parſon and Vicar, is becauſe the Modus
fuggeſted to be paid comes not in Queſtion, but only the Right of
Tithes to which of the Spiritual Perſons they do belong. Draiton and
Cotterel v. Smith. 2 Bulſtrode 158. But other Words in the ſame
Statute are, 36 a Parlon demands of bis Parithioner Dulations or
Tythes due and accuſtomed, (that is due in Kind or by Cuſtom, as the
Judges I have ſhewed expounded them) the Spiritual Judge ſhall have
Power
Wherefore
51
for that the Spiritual Court hath
Chap. LVII. The Complete Incumbent. 621
Power to take Knowledge, &c. and ſo ſeems more exprefly to give Furilation
Trial of a Cuſtom or Preſcription for Tithes, vią, a Modus Deciul consumo
mandi to the Eccleſiaſtical Judges, than the former Words do, which
give the Trial of the Right of Tithes to that Çpurt betwixt Spiri-
tual Men : Yet notwithſtanding all that has been before faid, and the
Caſes cited to the contrary, I conceive that the Law and Practice is
ſettled in this Point, that if a Modus Decimandi bę ſued for in the
Eccleſiaſtical Courts, a Prohibition lies to ſtop the Trial of it, if the
Modus be denied. The Reafon given is, not upon the Account that
the Spiritual Court wants Juriſdiction, but in regard of the Notion
their Law has of Cuſtom different from ours : And being that every
Modus is due by Cuſtom, 'tis the Common Law, only that can deter-
mine what Time and Uſage with us fhall be ſufficient to create ſuch
Cuſtom; that is, Time beyond all Memory to the contrary; whereas
by their Law ſometimes 10 Years, ſometimes 20, they will adjudge
fufficient to create a Cuſtom, as is ſaid 3 Keeble 527, in the Caſe of
Andrews v. Simſon ; and Prohibitions in ſuch caſes are not granted,
but in reſpect of the Trial which is to be by our Law only; and if
upon the 'Trial it be found for the Modus, the Proceedings ſhall go
on in the Spiritual Court; if againft the Modus, the Prohibition ſhall
ſtand. See the aforeſaid Çafe of Andrews v. Simfon. 3 Keeble 523,
5?7.
و
C H A P. LVII.
Where, and by what Plea the Spiritual
Court ſhall be ouſted of Juriſdiction, and
upon what Suggeſtions Prohibitions are
granted.
”
Tho' a Par.
for a Modus,
Lthough it may be granted, that a Parſon may fue in the Eccle-
fiaftical Court for a Modus Decimandi originally, or for Money fon may fue
or other Thing due and payable by Cuſtom in lieu of Tithes, or o-
Ego. origi-
therwiſe for Things not in their Nature Titheable; and alſo if it be nally.
admitted that a Modus may be proved and examined there, when the
Libel is grounded thereupon ; yet if the Proprietor of the Tithes of a
Pariſh doth fue in the Spiritual Court for Tithes in kind of Lands dif-
charged thereof by Preſcription, c. and the Defendant doth alledge
the Cuſtom or Preſcription de Modo Decimandi in Bar, that Cuſtom
or Preſcription ſhall not be tried and determined before tlre Judge Ec-
cleſiaſtical, but a Prohibition lieth to try the fame at the Common
Law, for that the Suit is not originally for the Modus (as it might be),
but for the 'Tithes in kind of Lands, by a Modus or Preſcription dif-
charged of the Payment of 'Tithes; and in fuch Caſe to fue for
Tithes in their Kind is prohibited by this Proviſo in the Statute of 2
3 Ed. 6. cap. 13. Provided always, and be it eunded by the Authority
aforeſaid, That 40 Perſon hali be ſued, or otherwiſe compelled to
pield,
622 The Clergy-Man's Law: Or, Chap. LVII.
Yet Prohibi-
Stature com-
7
Tho' a Pro-
Purifoicion yield, give 02 pay any manner of Tithes foz any mano.s, Lands, Tene.
of spiritual
Couris, Ego co
ments o Vereditainents, which by the Laws and Statutes of this Realni,
or by any privilege or Preſcription, are not chargeable with the Pap.
ment of any ſuch Tythes, othat be diſcharged by any CompoŲtion reai.
And always when an Act of Parliament commands or prohibits any
tion upon a Court, be it Temporal or Spiritual, if the Statute be not obey'd
manding or
Prohibition lieth, of which the Judges gave ſeveral Inſtances. Trin.
prohibiting. Jac. in the Cafe de modo Decimandi. 13 Coke's Rep. 1 2 & 37, and
by Dodderidge in Harding and Goſling's Cafe: 3 Bult. 241. So if a
Biſhop or his Farmer (who ſhall alſo have the Privilege) doth fuggeſt
,
that a Suit is in the Ecclefiaftical Court for 'Tithes in kind, where the
Lands are diſcharged by a Preſcription dé iron Decimando, a Prohibition
lies by the faid Prohibitory Clauſc. Paſch. 38 Eliz. the Biſhop of
Wincheſter's Cafe. 2 Coke 44.
But though it be faid, that where the original Suit is for Tithes in
hibition lies kind of ſuch Lands, which by Act of Parliament, Preſcription or Com-
are abſolute- poſition real are diſcharged of Tithes abſolutely, a Prohibition lies by
ly diſchar. Force of the faid Probibitory Clauſe in the Stat. 2 Ed. 6. yet from
ged, yet non
thence it ſeems not to follow, that if the Tithes in kind be fued for
Sequitur, Soc.
of Lands which be not diſcharged of Tithes by any of the aforefaid
Means, and the Defendant doth allcdge a Modus Decimandi, which
relates to the Manner or Circumſtances of paying ſome particular
Tithes of ſuch Lands only, that a Prohibition lies to try ſuch Modus
at the Common Law; for in the firſt Caſe the Lands themſelves are
diſcharged of the Payment of Tithes, and ſo the original Suit is pro-
hibited by the Clauſe of the ſaid Statute. 2 Ed. 6, but in the later,
the Lands are titheable, and therefore the original Suit for the
Tithes in kind is warranted (as hath been ſhew'd) by the before-men-
tioned Statutes: And alſo in the former Caſe, the Plea of a Modus
Decimandi cannot be faid Acceſſory to the Right of Tithes upon the
That where Reafons given by the Judges in the Cafe de Modo Decimandi, viz.
the Tithes becauſe the Tithes are extinct, and the Modus is the only Thing with
are extin&, which the Land is chargeable ; and therefore by the ſaid Clauſe in
the Statute, which is in the Negative, the Principal, viz. the Tithes,
acceſſary are not to be ſued for there ; and the Rule, That when the Eccleſia-
ſtical Court hath Juriſdiction of the Principal, &c. cannot hold Place
in ſuch Caſe: But in the later Cafe, the Modus is but Acceſſary to
the Right of Tithes, and the Reaſons given by the Judges in the Cafe
de Modo Decimandi are not applicable to it; for here, the Tithes in
kind of the Land are not abſolutely extinct; for we ſuppoſe the Cafe
to be, that when the Lands are fown, Tithes of Corn are to be paid
in kind, when mowed, of Hay, when depaſtured, of the Stock; yet
for ſome of theſe Tithes, a Modus as to the Manner of Tithing is ſug-
goſted, not for the reſt, as that the Eighth Sheaf-Shock or Cock, ſhall
be paid inſtead
of the Tenth ; that the Tenth of the Cheeſe made be-
twixt certain Days, ſhall be paid for the Milk of Cows; 2 d., for a
Lamb; Pig, &c. In theſe Caſes the Lands are not diſcharged of
Tithes in kind, but only a Recompence comes in the Place of a par-
ticular Tithe by Preſcription, or a Preſcription doth direct the Circum-
ſtances or Manner of paying the Tithe in kind, as that the Tithe of
young Beaſts ſhall be paid at a certain Age, though uncapable of li-
ving then without a Dam, &c. Now in theſe Cafes, when the Tithes
of Land are not extinct, but the Lands are chargeable therewith, the
Cafe ſeems to be out of the Prohibitory Clauſe in the Statute, and
the Modus
cannot be
ز
2
the
Chap. LVII The Complete Incumbent .
623
the Principal, (viz.) the Right of Tithes, remains of Eccleſiaſtical Purifdiction
Cognizance, and that by Force of the fame Statute ; and ſo the Mo- of Spiritual
Courts, Coco
dus that comes in by Allegation, and is dependant thereupon, is ac v
ceſſory thereunto ; and being to acceſſory, is alſo of the ſame Jurif The Modus
di&tion : And this was not denied to be the Rule of Law by the Tem- and accetto
poral Judges, when 'twas argued by the Civilians in the Caſe of ry.
Lands abſolutely diſcharged of Tithes in kind, and endeavoured to be
proved by Bacon Solicitor General, (who was on the Part of the
Clergy) from ſeveral Authorities, but only it did not come up to the
Cafe then under Debate ; in which, by reaſon of the ſaid Clauſe, they
had not Cognizance of the Right of Tithes in kind, but only of the
Modus Decimandip And the Authorities vouched by. Bacon to prove
the faid Rule were theſe. i Ric. 3. 4, the Opinion of Hulley, that
when the Original ought to begin in the Spiritual Court, and after-
wards a Thing cometh in Iſſue which is triable in our Law, yet it ſhall
be tried by their Law: As if a Man fueth for a Horſe deviſed to him,
and the Defendant faith, that the Deviſor, gave to him the ſaid Horſe,
the ſame ſhall be tried there. And the Regiſter 57 Ġ 58. If a Man
be condemned in Expences in the Spiritual Court for laying violent
Hands upon a Clerk, and afterwards the Defendant pays the Coſts, and
gets an Acquittance, and yet the. Plaintiff fueth him againſt the Ac-
quittance for the Coſts, and he obtains a Prohibition ; for that Acquit-
tances and Deeds are to be determined by our Law; yet he ſhall have
a Conſultation, becauſe the Principal belongeth to them, (but they
muſt proceed according to the Rules of the Common Law;
aw;) 38 Ed.
3. 5. Right of 'Tithes between Two. Spiritual Perfons ſhall be deter-
mined in the Eccleſiaſtical Court ; and 38 Ed. 3. 6, where the Right Upon Rights
of Tithes comes in Debate between Two Sriritual Perſons, the one between Spi-
claiming the Tithes as of common Right within his Parifli, and the ritual. Per-
other claiming to be diſcharged by real Compoſition, the Eccleſiaſtical fons.
Court ſhall have Juriſdiâion of it; to which may be added ſome mo-
dern Cafes, as if à Suit be in the Spiritual Court for a Modus Deci-
mandi, and the Defendant plead Payment, this ſhall be tried there,
(they allowing ſuch Proof of the Payment as is ſufficient at Common
Law) for that the original Suit was well commenced there. Mich. 14
Jac. B. R. Golling and Harding, per Cur'. Hobart 314. 2. Roll's Abr.
305. So if a Man fue for a Legacy in the Spiritual Court, and the
Defendant pleads a Releaſe in Bar, and the plaintiff denies it, this
ſhall be tried there, and no Prohibition ſhall be granted, for that this
is a Matter ariſing from an originál Cauſe of which they have the Ju-
riſdiction. Mich. 15 Fac. C. B. between Percher and Wheeble; per Cus
rian. Hob. 255. Anonymus. Roll's.2 Abr. 307. 124. 14. So it is, if
Payment be pleaded in a Suit in the Eccleſiaſtical Court whereof they
have original Cognizance. 12 Jac. B. R. Roll's 1. Rep. 12. & 2. Abr.
305, 306. So if an Adminiſtrator ſue for a Legacy due to the Teſta-
tor in the Spiritual Court, and the Defendant pleads the Releaſe of
the 'Teſtator in Bar, and the Plaintiff will avoid it, for that bis Teſta-
tor was an Ideot; this Ideocy ſhall be tried there, and no Prohibition
ſhall be granted, for that they have Juriſdiâion of the original Mat-
ter. Mich. 15 Jac. Pércher v. Wheeblt. Roll's 2 Abr. 307.7200: 15,
Or if a Parſon ſues in the Eccleſiaſtical Court, and the Defendant Symoniacal
there pleads that the Plaintiff was preſented upon a Symoniacal Con-
tract againſt the Statute of 31 Eliz, this ſhall be tried there, for that
they
.
Contra&.
624
.
The Clergy-Man's Law: Or, Chap. LVII
may try the
(1.) Robert's
Caſe.
Juriſdiction, they have Juriſdiction of the original Matter. Mich. 8 Jac. C. B.
Courts, etc. Penn's Cafe. Roll's 2 Abr. 307. nu. 16.
To all which I will add Two other Judgments reported by Coke,
When they which ſeem to favour this Opinion, that the Spiritual Court having
Acceſſory.
Juriſdiction of the Principal, ought not to be prohibited in judging the
Acceſſory, though the Acceſſory is of it ſelf beyond Queſtion of Tem-
poral Cognizance.
The former of which is Robert's Cafe. Mich. 8 Fac. which is as
followeth : A Prohibition had been granted in a Caſe of Subſtraction
of Tithes, upon Surmiſe, that the Plaintiff (bcing Defendant in the
Spiritual Court) had but one Witneſs to prove in that Court his De-
miſe, which that Court would not allow for Proof, for that ſingularis
Teſtis is not allowable by their Law. And upon Conſideration and
Sight of a Prohibition granted in the ſame Cauſe, in Hill. 3 Eliz. in
Banco Regis, it was reſolved by Coke Chief Juſtice totain Curiam,
that a Conſultation ſhould be granted, and that for divers Cauſes.
Firſt, It appeareth by the Regiſter, fol. 15, that it is a Rule, Quod
non eſt confonum rationi quod Cognitio Acceſoris in Curia Chriftiani-
tatis impediatur ubi cognitio Cauſa Principalis ad forum Eccleſia-
ſticuin noſcitur pertinere, and with this agrees i R. 1. 3,4. Second-
ly, If ſuch Surmiſe ſhall be allowed, then in every Caſe for meer De-
lay ſuch a Surmiſe may be made ; for when the Defendant in the Spi-
ritual Court ſhall ſurmiſe that he hath but One Witneſs, the Plaintiff
there cannot deny it, and ſay, that he hath Two or more, for then he
affirms Matter againſt himſelf, and when the Spiritual Court hath Ju-
riſdiction of the principal Cauſe they determine the Acceſſory. But it
was objected, That if A. claiming by a Leaſe from B. of a Rectory,
libels for Subſtraction of Tithes, and the Defendant pleads a former
Leaſe made by B. to C. and the Defendant hath but one Witneſs in
the Caſe to prove the former Leaſe ; if no Prohibition ſhall be grant-
ed, the Defendant ſhall be charged; and if C. fue him upon the Sta-
tute of 2 Ed. 6, at the Common Law, the Teſtimony of One Wit-
nefs only will there be ſufficient, and ſo he ſhall be twice charged. To
which it was anſwered, That firſt the Fault was the Defendant's, that
he would not ſet forth his Tithes, for then he ſhall not be charged
whoever takes them. But in ſuch a Cafe, thoſe in the Eccleſiaſtical
Court will upon One good Witneſs and any concurrent vehement Pre-
ſumption, as Poſſeſſion or the like, allow of ſuch a Proof; and the
Teſtimony of One Witneſs in our Law is no concluſive Evidence, but
ought to be left to the Conſcience of the Jury, and ſo the Validity or
Invalidity of Proof of Matters of Fact ſhall be left to them. But if
But if they a Queſtion at the Common Law ariſe from the Party upon the Con-
will proceed ſtruction of a Statute, or the like, and thoſe of the Eccleſiaſtical
Conſtruction Court will take upon them to judge of it againſt the Rule of Law;
of a Statute, there, upon ſpecial Surmiſe of it, and upon the Shewing of the Anſwer
or other Pleadings of the Parties, by which it appears to the Court
that ſuch Surmiſe is a good Ground for a Prohibition, it ſhall be gran-
ted; for Matter in Law ariſing upon Eſtates or Intereſts created by
the Common Law, and Conſtruction of Statutes, ought to be made
according to the Rules of Common Law, & non debet trahi ad aliud
.
examen.
2. Fuller's
Cafe vouch-
ed.
The other Judgment that proves, that the Acceſſory is to be tried
in the Eccleſiaſtical Court, when it hath Juriſdiction of the Principal,
2
was
Chap. LVII. The Complete Incumbent.
625
Courts.
was avouched by Coke, and reported by him in the ſaid Caſe of Rc- Jurifcision
berts; which is this. Paſch. 35 Eliz. in B. R. Fuller brought a Pro-
of spiritual
hibition againſt Clements and Wiskard, and Fuller counted that he
himſelf was Owner of the Rectory of A. and libelled in the Spiritual
Court againſt Clements for Subſtraction of Tithes, pendant which Suit
the faid Wiskard intervening pro intereſe ſuo made theſe Allegations
againſt the ſaid Fuller, That the ſaid Rectory was impropriate to the
Monaſtery of Wendling, and granted by Queen Elizabeth to M. and
Hall, who enfeoffed Bozone, who let it to Wiskard for Forty Years,
and proved theſe Allegations by Witneſſes, and had Sentence againſt
Fuller, who was condemned in Coſts Eight Pounds and Ten Shillings
to Clements, and Thirteen Pounds and Six Shillings to Wiskard; and
after Fuller did appeal to the Court of the Arches, and their Fuller
claimed the faid Rectory by reafon that Hall was feiſed of it, and by
his Deed did give and grant the ſaid Rectory, and all Lands and
Tithes to it appertaining, to Sir Edward Cleve before the Feoffment
ſuppoſed to be made to Bozone, and that Sir Edward Cleve by his Thar the
Deed did enfeoff Fuller, and although that he offered to prove the Court would
Delivery of the Deed of the ſaid Feoffment made to Sir Edward not allow
One Witneſs,
Cleeve by one fole Witneſs, the Eccleſiaſtical Court would not allow Specs
it, without producing another Witneſs. And Fuller further ſaid, that
although he had alſo alledged there, that theſe were Matters deter-
minable at Common Law, notwithſtanding they gave Sentence. The
Defendants for to have a Conſultation pleaded, that Fuller in the
faid Court of the Arches proved the Delivery of the Deed aforeſaid
by Sir Edward Cleve and Mouſe, but could not prove Livery and Sei-
fin according to the Deed, and for this Caufe Sentence was given, with-
out that, that the Judges of the Arches would not admit of the ſaid
Proof, unleſs he proved the Deed by other Witneſſes ; upon which Ful-
ler demurred in Law: And it was objected by the Counſel of Fuller,
1. That Wiskard (who is a meer Stranger to the Suit, and who comes 1. Argument
in pro intereſe ſuo in the ſaid Rectory) pleads Matter meerly deter- for Trial at
minable at the Common Law, ſcilicet, Letters Patents, Fcoffment an Inheri-
and Leaſe for Years; and on the other Part, Fuller claims an Eſtate tańce.
in the ſaid Rectory by Conveyance at the Common Law. And now
the Queſtion in the Eccleſiaſtical Court being only who hath the beſt
Eſtate in the ſaid Rectory by the Common Law, this ought to be tri-
ed by the Common Law, and not in the Eccleſiaſtical Court; for this
is the Birthright of the Subject to have his Inheritance and Freehold
tried and determined by the Common Law, for the Civil Law differs
much in the Trial of Inheritances.
2. It was objected, That all Mat- 2. Concerri-
ing Livery:
ters in Law ought to be determined by the Judges of the Law, and in
Caſe Matter of Law ariſing, (ſcil.) If a Man hath a Rectory impro-
priate which conſiſts in Glebe and Tithes, and by his Deed gives and
grants the ſaid Rectory, and all Lands and Tithes any ways belonging
or appertaining to it, to another and his Heirs, and no Livery is
made; in this Cafe, whether the Tithes ſhall pafs or no, (for the
Tithes may paſs without any Livery) this Queſtion is not fit to be
detetmined by the Eccleſiaſtical Judges
, but by the Judges of the
Common Law, Quod quiſque nozit in hoc ſe exerceat. 3. It was 3. That att
objected, That Wiskard was a meer Stranger to the Suit, and all his the Allega
Allegation is Temporal, and for that it is a ſtronger Cafe to maintain
Temporal
a Prohibition, for as much as betwixt him and Fuller nothing is in
Queſtion, but to whom the Inheritance of the Rectory belongs; but
Yyyy
Clement,
tims were
626 The Clergy-Man's Law: Or, Chap. LVII
. .
Courts.
had but One
Witneſs.
(1.)
The Refolu-
Court.
Rectory into Fractions by a Conitruction of Law contrary to the In-
Furiſdiction Clement, who is fued for Subſtraction of Tithes, hath greater Colour
of spiritual
in his Defence, being lawfully fucd in the Ecclefiaftical Court, but all
his Allegations, as hath been ſaid, is Temporal. 4. It was objected,
4. That Fuller That Fuller had but One Witneſs to prove the Delivery of the Deed,
and in the Eccleſiaſtical Law un1!5 Teftis eſt nullus Teſtis; for all
which Cauſes it was prayed that the Prohibition may ſtand, and that
no Conſultation may be granted.
To which it was anſwered and reſolved by Sir Chriſtopher Wray
Chief Juſtice, and per totam Curiami.
As to the firſt ObjeЕtion : That foraſmuch as the Original belongs
lution of the to the Eccleſiaſtical Court, the Determination of all that which de-
pends upon it belongs to the Judges of the fame Court, although that
the Matter be triable by the Common Law; but where the original
Matter belongs to the Common Law, and there commenced, and If
ſue be taken upon Matter triable by the Eccleſiaſtical Law, there the
Judges of our Law ſhall write to the Judges of the Eccleſiaſtical Court
to try it, and to certify, Gc. And the Reaſon of this Diverſity, is
that our Judges have Authority to write and command them by the
King's Writ to certify them of their Law, but they cannot write to
the Judges of our Law to try any Thing and to certify them, for
that they have no ſuch Authority to command by Writ, &c. And at
the End of this Anſwer to the firſt Objection it is further ſaid, That if
in the Eccleſiaſtical Court the Suit is for a Legacy, and the Defen-
dant pleads a Releaſe, if in the admitting or rejecting of Proofs con-
cerning this Releaſe, which is Matter determinable at Common Law,
they do Wrong to the Plaintiff or Defendant, they have no Remedy
but by Way of Appeal. But Quære as to this, for I take the con-
trary to be Law, and fo adjudged in the Caſe of Armiger Brown v.
Wentworth, Yelverton 92, before-mentioned, Chap. 54.
2: They may the Second it was anſwered and reſolved, That if upon Conference
with Men learned in the Law they give Sentence according to Law,
cording to
this is well done, and no Prohibition ought to be granted; but if they
Law, c.
take upon them to draw the Intereſt of any Man ad alium examen,
and to judge againſt the Rule of Law concerning the Inheritance or
Intereſt of any, there a Prohibition lies. And in the Cafe at the Bar,
they well reſolved the Law; for by the faid Livery of the Charter,
the Tithes did not paſs as in grofs, for that the Intention of the Par-
ties was to paſs the entire Rectory by Feoffment, and not to paſs the
Tithes only ſeparate from it, for that would be to diſmember the
i
2. To
tence ac-
3. That a
Stranger
may come
fuo.
tention of the Parties. 3. As to the Third Objection, it was anſwered
and reſolved, That by the Eccleſiaſtical Law a Stranger may come in
in pro intereſſe pro interesſe ſuo, and when they have Juriſdiction of the original
Cauſe of Suit, we ought not to draw in Queſtion their Order or Pro-
ceeding'; but if they proceed inverſo ordine, not obſerving Form, this
ought to be redreſs’d by Appeal ; and although that the Matter de-
pending upon the original Cauſe be determinable by the Common
Law, yet it ſhall be determined, as hath been ſaid, in the Eccleſiaſti-
4. A Surmiſe cal Court. 4. As to the Fourth Objection, it was anſwered and re-
but One Wit- ſolved; That ſuch a Surmiſe that he hath but One Witneſs, is not ſuf-
ficient to have a Prohibition, for that the Ecclefiaftical Court hath Ju-
riſdiction of the Principal; and if ſuch a Surmiſe ſhall be ſufficient, all
Suits in the Eccleſiaſtical Court ſhall be either delayed or quite taken
away; for ſuch a Surmiſe may be made in every Caſe, and the Plain-
neſs is not
fufficient.
i
tiff
Chap. LVII. The Complete Incumbent. 627
Courts.
.
tiff in the Ecclefiaftical Court cannot have any good Anſwer to it juriſdiction
to have a Conſultation, which agrees, faith Coke, with the Reſolution of spiritual
in the principal Caſe, viz. Robert's Cafe, before-mentioned, which is
reported, 2 Cro. 269, and 12 Co. 65. So it hath alſo been held, that Surmiſe that
if a Parſon ſued upon the Statute of 2 Ed. 6. in the Spiritual Court he fet forth
for the double Value for not ſetting forth of Tithes, and the Defen- and had but
dant to have a Prohibition ſurmiſed, that he fet them forth, and that OneWitneſs,
no Prohibic
they would not admit the Proof thereof by One Witneſs, that no tion.
Prohibition lies, for that they have Cognizance of the Matter. Hill.
9 Car. B. R. Yolle and Sir Edward Powel
, 2 Roll's Abr. 299. So by Incidents left
the Reſolution of all the Judges of England, Paſch. 4. 7ac. 1. under to the Eccle-
their Hands delivered to the Lords of the Council, it was agreed,
That if the Queſtion be upon Payment or Setting out of Tithes, or
upon Proof of a Legacy, or Marriage, or ſuch like Incidents, it was to
be left to the Trial of their Law, though the Party have but One
Witneſs; but where the Matter is not determinable in the Eccleſia-
ftical Court, there lyeth a Prohibition either upon or without ſuch a
Surmiſe, 2 Inſtit. 608. Yet 'tis to be obſerved, That the very next
Term after this Reſolution of the Judges is ſaid to be given, that the
Proof of the Revocation of a Will by One Witneſs being refuſed in the
Eccleſiaſtical Court, that for that very Reaſon a Prohibition was
granted by the Court of King's Bench, as appears. Trin. 4. Jac. B.
R. Armiger Brown v. Wentworth, Yelverton 92. Nor is it material to
ſay, that a Preſcription by the Common Law is to be tried at the
Common Law. See 9 H. 6. 46. For when one preſcribed, (being ſued
in the Spiritual Court for not paying towards the Repair of a Mother
Church) that there was a Chapel within the ſaid Village, in which
they had at all times Sacramenta o Sacramentalia, and that he, nor
the Inhabitants that uſed to reſort to the ſaid Chapel, have ever uſed
to repair the ſaid Church, it was held that a Preſcription, which is
incident to the Eccleſiaſtical Things, ſhall be tried in the Eccleſia-
ſtical Court. Mich. 20 Jac. B. R. Roll's 2 Rep. 265. And when a
Prohibition was prayed upon the like Suggeſtion, by the Opinion of
the whole Court a Prohibition lieth not, in regard that this Preſcrip-
tion is meerly Spiritual, ſo the Prohibition was denied. Hill. 7 Jac.
B. R. i Bulſtr. 17. Hill. 12 Jac. B. R. betwixt the Church-wardens
of Aſhton and Bromage, 2 Roll's Abr. 311.
Now one might have thought, that the Law as to the Points de- Prohibitions
termined in theſe Cafes was fully ſettled, viz. that the Court which granted a-
hath Juriſdiction of the Principal hath the Juriſdiction of the Acceſſory, former
and that a Surmiſe of but One Witneſs is no Ground of a Prohibition ; Points.
yet in a Prohibition obtained upon a Surmiſe, that whereas a Parſon
had ſued in the Spiritual Court for the Tithe of Pigeons, the Defen-
dant there had paid the ſaid Tithe, and proved it by One Witneſs,
and the Court Chriſtian would not allow the Proof without Two Wit-
neſſes; the Prohibition was affirmed, Paſch. 41 Eliz. Moor 909. And
fo a Prohibition was granted for the fame Cauſe upon a Suit for the
Tithes of Lambs. Warner v. Barret, Hetley 87, and fo Dodderidge
held in 14 Jac. B. R. in Harding, &c. and Goſlin's Caſe, 3 Bulſtr.
241.
And when a Suggeſtion was, that the Defendant in the Spiritual Court So when De.
claimed the Tithes by a Leaſe from the Parſon, of an elder Date than that fendant ſug-
the Plaintiff had, that ſued him for them there by Force of a later Leaſe by der Leaſe.
the ſame Parſon, ſo that the Queſtion was, which of the Two Leaſes
ſhould
Үyyy 2
628 The Clergy-Man's Law: Or, Chap. LVII.
Courts.
Tithes.
Furiſoigion fhould be preferred ,; a Prohibition was awarded; and though Crook
of Spiritual held that a Conſultation Mould be granted upon 1 R. 3, 4, that where
the Spiritual Court hath Juriſdiction of the Principal, there if an Ac-
ceflory come triábļc at the Common Law, that alſo ſhall be tried
there'; yet Coke faid, that in one Futter's Cafe, there was a Suit in
the Spiritual Court for Tithes, and Title made by the Grant of the
Rectory, and the other made Title by a former Grant, and a Prohi-
bition was granted, yet he agreed, 1 B. 3. 4, unleſs the Spiritual Law
differs from our Law, as their Law is, that a Gift of Goods is not
good without Tradition, but otherwiſe it is at our Law; and Dod-
deridge ſaid, that the principal Matter here, which is the Leafe, is
Temporal not Spiritual, therefore is not within the Rule, i R. 3.
but true it is, that if the Original be Spiritual, then the Acceſſory ſhall
be tried there alſo, otherwiſe not; all which was granted by Coke,
who alſo ſaid, that if a Man make Title in the Spiritual Court by
Force of a Leaſe of the Proprietor, and the Defendant deny the Leafe,
a Prohibition ſhall be granted, and in the Caſe then before the Court,
a Prohibition was granted; per Curiam, Mich. 12 Jac. B. R. Worts v.
If the Vali: Clifton, Roll's i Rep. 61. So a Prohibition was prayed to the Eccle-
dity as to pri- ſiaſtical Court on a Suggeſtion, That the Trial of all Letters Patents
ters Patents and Grants of the King ought to be at the Common Law, and not in
may be tried the Eccleſiaſtical Court; and that the Defendant had libelled in the
there upon a Eccleſiaſtical Court for Tithes, and that his l'ithes was by the King's
Letters Patents, whereas the Plaintiff (who prayed the Prohibition)
had a more ancient Right to the faid Tithes by other former Letters
Patents of the King; but the Libel in this Cafe in the Spiritual Court,
was only in the common Form, (viz. That he was Proprietor of the
Tithes, without making any other Title ; but upon the Proceedings,
the Title did appear to be by Letters Patents on both sides) and by
North, Windhain and Charleton, a Prohibition was granted; for that
the Eccleſiaſtical Court was not to try the Validity of the Letters Pa-
tents; but Ļevinz contra, the Suit in the Eccleſiaſtical Court being
grounded only upon the Wrong in ſubſtracting the Tithes; and if the
Tithe come in Queſtion there, 'tis only as an Incident, and ſaid that
when the Foundation of the Libel is for a Spiritual Matter, and a
Temporal Thing falls in incidently to be queſtion'd there, the Eccle-
ſiaſtical Court ſhall try ſuch Temporal Matter, ſo that they proceed
according to the Rules of the Common Law, and cited 12 Coke 65,
66. i R. 3. 4. Regiſter 57, 58. 3. Croke 466, 788, and Trin. 24 Car.
2. B. R. Sir William Fuxton, ver. Seignior Byron, adjudged accor-
dingly by Hale Chief Juſtice, and the whole Court; but the Prohibi-
tion was granted in this Cafe by the Three other Judges. 3 Le-
vinz. 71.
I will here alſo cite fone Caſes mentioned by Roll's in his Abridg..
Whire. Pravie ment, where Prohitions have been denied to the Spiritual Court upon
been denied. Trial of Temporal incident Matters, the Principal being proper
their Juriſdiction. As firſt,
If a Parſon compounds with a Pariſhioner for his Tithes, and grants
ſon granted them by Deed to him for a certain Sum by the Year according to the
Deed, and Agreement, and afterwards he ſhall fuc the Pariſhioner in the Eccle-
ſiaſtical Court for the Tithes in kind, no Prohibition ſhall be granted
upon this Diſcharge by Deed, for they may well try it having Conuſance
of the Principal. 8 Ēd, 4. 14. Paſch. 16 Jac. B. Ķ. reſolved betwixt
Other Caſes
to
Wherea Pars
after sued
for them in
kind,
Grifin
Chap. LVII. The Complete Incumbent. . 629
:
Courts.
So aficr hic
like Leaſe
Where the
Griffin and Bulſuiſt, and a Prohibition denied, although that onee be- rutiloisticta
cf Spiritual
fore it was reſolved econtra for the Church of JVakerly.
So if a Parſon leafe all the Tithes of his Benefits to onė Pariſhioner,
and after fues him for his own Tithes, no Prohibition fhall be grant- leafed them
ed, for that this Leaſe is a good Diſcharge there. 8 Ed. 4. 14. per our.
Choke.
So if a Parſon lcafe by Deed the Tithes of his Parifh, and after So where the
fues for the Tithes in the Spiritual Court, and there this Leaſe is
was pleaded.
pleaded, where the Queſtion betwixt them is, whether the Tithes of
all the Pariſh, or only of fome particular Things, are let; yet no
Prohibition lies, for that they have Cognizance of the Original, and
they ought to take Advice of them that be learned in the Common
Law for their Direction, as the Judges of the Comnion Law take Ad-
vice of them; but if they Judge contrary to the Common Law, a. Pro-
hibition liés after Sentence. Mich. 13 Car. B. R. betwixt Dr. Pock-
lington and Sir ..... St. John, Roll's 2 Abr. 306, 307.
So if A. the Parſon of B. lues for Tithes in the Spiritual Court
Acceſſory
againſt B. who pleads a Leafc for Years made to him by the Parſon, ariſes upon a
and the Parſon replies, that he was Non-Reſident 'and abfent by the Statute.
Space of Eighty Days and more, in ſuch a Year, &c. from his Bene-
fice, by which the Leafe became void; no Prohibition lies upon this
Plea, although that it be grounded upon the Statute of 13 Eliz. and
although it was objected, that the Judges of the Spiritual Court ſhall not
have the Expoſition of a Statute; yet becauſe they have Juriſdiction
of the original Cauſe; they ſhall have Power to try that which is the
Acceſſory ariſing thereupon. Hill. 14 Car. B. R. Sir Thomas. Lucy v.
Dr. Lucy, per Curiam, Roll's 2 Abr. 308. nu. 22.
Thefe Cafes ferve to prove, that if upon a Suit for Tithes in kind a Thé Proof of
Leafe be pleaded and denied, the Validity thereof is to be tried in the thie Cafes.
Eccleſiaſtical Court, which alſo are in Proof of the Rule of Law,
that when the Ecclefiaftical Court hath Juriſdiction of the Principal,
it hath alfo Juriſdiction of the Acceſfory, though the Acceffory be
otherwiſe of Temporal Cognizance.
From all which we may conclude, That the Law formerly was fion : That if
taken to be, or at leaſt no judgments or Reſolutions were to the con- a Temporal
trary,
that if a Suit be for Tithes in kind not extinct by Preſcription, ing as ac-
or of Lands not Tithe-free, and a Prefcription as to the Manner of ceitory may
rendring fuch Tithes be ſuggeſted, and fo comes in as an Acceſſory be tryed in
the Spiritual
upon
the Suit for the Tithes, though it be to be granted, that the
Trial of a Preferiprion is otherwife Temporal, and to be tried at more a Mo-
Common Law; yet when it comes in as an Acceſſory only to the dis Deciman
principal Matter of which the Spiritual Court hath juriſdiction, it comes in as
may be tried there; and no Prohibition lies. And it hath been before an Acceiro
thewed to liave been held, that a Suit for a Modus Decimardi may
be well commenced in the Spiritual Court, and that the Modus may
be tried there, as being purely of Spiritual Cognizance, and no Suit
can be brought for a Modus in the Temporal Court; therefore if a
Temporal Matter coming in as an Acceſſory ſhall be tried in the Spi-
ritual Court, much more, as it might be urged, ſhall a Modus Deci-
mandi, which is of Eccleſiaſtical Cognizance, originally be tried there;
when that comes in as Acceſſary only. Yet when a Parſon libelled in
the Spiritual Court for the Tithe of Lambs, and the Defendant to
have a Prohibition ſuggeſted a Cuſtomi to be, That if one hath Lambs Suggeftion
under the Number of Seven, he ought to pay an. Half-penny for every for Lambs.
Lamb
:
+
The Conclu-:
Court, much
ry, &c.
630 The Clergy-Man's Law : Or, Chap.LVII.
Bluriſoidion Lamb under that Number in licu of all Tithes of Lambs; and if he
of Spiritual had but Scven, the Parſon ſhould have the Seventh Lamb, and
Courts.
fhould pay Three Pence; and if he had Eight, he ſhould pay Two
Pence;
and if he had Ten, the Parfon ſhould have the Tenth Lamb
without paying any Thing. Berkley and Jones held, that the Canon
Law is ſo, and ſo received in the Spiritual Court, and it is furmiſed
that the Spiritual Court allows of it, and therefore there needs not
any Prohibition. But becauſe it was alledged that it was a Cuſtom,
and that the Parſon would ſtay until the Tenth did ariſe, and would
refuſe to accept according to the Cuſtom, and that in the Spiritual
Court this Surmiſe was not allowed; Bramſton and Croke conceived
that a Prohibition was grantable, and fo Jones and Berkley agreed
that it ſhould be granted, and that the Party might demur, if he
would. Paſch. Car. B. R. Anonymus, 1 Cro. 403. But whether an
Appeal or Prohibition lies, if ſuch Plea be refuſed, yet a Modus De-
cinzandi may be, and frequently hath been allowed to be tried in the
Eccleſiaſtical Court; and the Civilians, when the Debate was before
King James I. faid, that they would allow of a Modus, it being duly
proved; for though it be ſaid in Linwood in his Title de Decimis cap.
Qyoniam propter, fol. 139. b. Qzod Decimæ ſolvantur, &c. abſque ulla
diminutione, and in the Glofs it is ſaid, Quod conſuetudo de non
Decimando aut de non bene Decimando non valet; yet this
being againſt the Law and Cuſtoms of the Realm, is void by
the Statute of 25 H. 8. C. 19, and the Spiritual Judges ought not to
have reſpect thereunto, but judge for a Modus proved, whether origi-
ginally fued for, or if coming in by Way of Plea upon a Suit for the
Since what Tithes, to allow of the Plea. From all theſe ſeveral Cafes and dif-
how the Spi- ferent Opinions of the Judges, one may conclude, that the Law was
ritual Courts very much unſettled in the Time of Jac. I. and before, about
grant-
ing Prohibitions to the Spiritual Courts, in caſe they took upon them
iry ale Tem- to try any Temporal Matter, or refuſed Evidence allowable at Com-
poral colla- mon Law, as by One Witneſs or the like; but ſince the Time of Car.
I. the Spirtitual Courts have been allowed to try all Temporal colla-
teral Matters incident to the principal Thing there ſued for, and pro-
per to the Juriſdiction of the Spiritual Courts without being prohibi-
ted; but ſo, as they try ſuch Temporal incident Matter according to
the Rules of the Common Law to which it belongs, elfe a Prohibi-
tion ſhall go, as if they refuſe Proof by One Witneſs, &c. See
Chap 54:
l. If a falſe
If one be ſued for Tithes of Lands not Tithe-free, and pleads a Pre-
Suggeſtion of
a Modus, Esc. fcription for a ſpecial Manner of Tithing, which is not refuſed, or
being refu- if ſued for a Modus Decimandi originally, pleading another Modus,
fedis traver- and his Plea is bona fide allowed, ſhall furmife fally a Refuſal of his
Plea, and for that Cauſe only a Prohibition ſhall be granted; the Que-
ſtion is, whether ſuch Surmiſe of a Refufal may be traverſed, that is,
when the Matter or Ground of the Prohibition is only the Refuſal.
And it is ſaid, though the 'Temporal Courts will take Notice that no
Modus is allowed in the Spiritual Courts, yet a Modus muſt be ſug-
geſted to have been pleaded there in Time. Mich. 22 Car. 2. Meſen-
ger v. Jennings, 2 Keb. 721. And generally, where a Suit is pro-
perly commenced in the Spiritual Court, Prohibitions are not granted
till after the Plea there pleaded. Mich. 14 Car. 2. B. R. 1. Keb.
387. Hill. 14 & 15 Car. 2. Parker v. Williams, Siderfin 100. i Keeble
433. Pafch. 16 Car. 2. Batty v. Smith, 1 Keeble 721.
have been
to
teral Mat-
ters.
fable.
2
As
Chap. LVII. The Complete incumbent:
631
442
As to the Refuſal of a Plea being traverſable, if the Suggeſtion for Furifoiction
a Prohibition doth contain other Matter upon which a Prohibition may Courts.
be duly granted, as that upon a Suit for Tithes in kind, that the
Lands are Tithe-free by Preſcription, &c. though it be alſo ſuggeſted, Not where
that this was pleaded in the Ecclefiaftical Court, and refuſed; yet other Matter
whether the Plca was refuſed or not is not traverſable, for the Party fit for a Pro-
may have a Prohibition before any ſuch Plea pleaded by him in Dif- hibition.
charge of Tithes, therefore in ſuch Caſes the Allegation of the Refu-
fal of the Eccleſiaſtical Judge are Words more of Courſe than Effect
or Subſtance, Paſch. 38 Eliz. the Biſhop of Wincheſter's Cafe, 2 Co.
the ſame called TVřight's Cafe, Moor 525, and is no Part of the
Matter iſſuable or material in the Plea, but put in only to aggravate
the Contempt, and many Times falſly, and therefore the Modus De-
cimandi is proved by Two Witneſſes according to the Statute of 2 Ed.
6. cap. 13, and not the Refuſal, Mich. 7 Fac. in the Cafe de Modo
Decimandi. Yet it is granted that in ſome Caſes the Reſufal is traverſable
as it was adjudged, Mich. 30 & 31 Eliz. B. R. between Morris and Eaton,
vouched in the Biſhop of Wincheſter's Caſe, 2 Co. 45, where the Café
was, that Morris was ſued by Eaton in the Spiritual Court for Tithes,
and Morris did alledge that Eaton did not read the Nine and thirty
Articles according to the Statute, and that the Eccleſiaſtical Judge did
refuſe to allow the ſame, and this Refuſal was traverſable by the
Judgment of the Court, for otherwiſe upon ſuch Surmiſe all Matters
might be prohibited in the Spiritual Court, although that the Spiritual
Judge did all that belongeth to Law and Juſtice; and in the fame
Cafe the Party grieved may have his Remedy by Way of Appeal.
From all which it may be collected, that if the Suggeſtion contains In what Caſes
no other Matter upon which a Prohibition ought to be granted to the the Refufal
Spiritual Court, beſides the Reſuſal of a Plea there, which by the
Common Law is a good Plea, and ought to have been allowed, that
in ſuch Cafe the Refuſal is traverſable. See Trin. 26 Car. 2. B. R:
Peters v. Prideaux, 3 Keb. 332. Therefore ſuppoſing that a Modus
Decimandi, or a Preſcription of a Manner of Tithing is triable in the
Spiritual Court, if in a Suit there for a Modus Decimandi, another
Modus be pleaded, or that there is no ſuch Modus, and that Plea is
refuſed; or if in a Suit for Tithes of Lands not Tithe-free, a Preſcrip-
tion is pleaded as to the Manner of Tithing, and that Plea is refuſed,
and a Prohibition being moved for upon Suggeſtion of ſuch Refufal,
the Refuſal being the principal Matter of the Suggeſtion, is therefore
traverſable ; and in all Caſes where the principal Matter is proper to
the Spiritual Court, there no Prohibition ſhall be granted till Plea re-
fuſed. The Courts of Common Law alſo, upon Suggeſtion of ſuch
Refufal, do oblige the Party to make Oath of the Truth of ſuch his
Suggeſtion, and will not grant any Prohibition without ſuch Oath;
Mich. 25 Car. 2. B. R. Kendal v. Pearin, 3 Keeble 2 17.
is traverſa-
ble.
CHAP
4
632
The Clergy-Man's Law: Or, Chap. LVIII
Suits on 2
& Ed. 6.
CH A P. LVIII.
524.
ir do Chafin Actions upon the Statute of 2 & 3 Ed. 6. cap.
13, for not ſetting forth of Tithes, by whom,
and againſt whom to be brought. Of Decla-
rations, pleas, Evidences, Verdiets, and
Judgments in ſuch Actions.
Actions in
the Common
Law Courts
upon the Sta-
cap. 3:
and Wife.
HA
AVING fhewed what Remedy the Law gives the Owner of
Tithes for the Recovery of them, or Satisfaction for them being
detained, and in what Courts fuch Remedy is to be had; I will here
ture 2 Ed. 6. fubjoin in what Manner Actions are to be brought in the Common
Law Courts upon the Statute of 2 Ed. 6. cap. 13, to recover Dama-
ges for the Subſtraction of Tithes; and by whom, and againſt whom
ſuch Actions are to be brought; how the Declarations in ſuch Action
are to be framed; what Pleas the Defendants may make for their De-
fence; and what Evidence is proper, and may and ought to be given
both by Plaintiffs and Defendants in ſuch Actions.
By Husband Firſt, If an Husband be feiſed or poſſeſſed of Tithes in the Right of his
Wife, or jointly with his Wife, the Husband and Wife muſt join in bring-
ing the Action upon this Statute for the Subſtraction of ſuch Tithes.
Hill
34 Eliz. Wentworth v. Criſpe, Moor 912. Mich. 39 & 40 Eliz.
Bedel v. Sherman, 2 Inftit. 650. 13 Coke 48. Hill. 7 Fac. Forde v.
Pomroy, Noy 136, fame Cafe, 2 Brownlow 9, but yet, Paſch. 12 Jac.
in Babbington's Cafe, Roll's i Rep. 13, it feems to be admitted, that
the Action may be brought by the Husband alone without joining the
Wife with hini.
By the Wife, If the Husband dies, the Wife, and not the Executors of the Huf-
band, ſhall bring the Action. Foord v. Noy 136. But if the Tithes be
Once ſet out and ſevered from the Nine Parts, they then become a
Chattel veſted in the Husband, Ley 70; therefore if after fuch Seve-
rance they be taken away by a Stranger, the Husband alone may bring
an Action of Treſpaſs for ſuch taking away of his Tithes, without
joining his Wife with him. Mich. 9 Car. Anonymus, Fones 325;
Foord v. Pomroy, Noy 136. 2 Brownlow 9. But an Action of Treſ-
paſs in ſuch Cafe lies not againſt the Owner, who ſet out the Tithes.
Webb v. Pitts. Noy 44 Leigh v. Wood, Moor 912. 3 Cro. 607. Nor
may any other Action be brought againſt him; if it be, he may plead
the ſpecial Matter in Bar of ſuch Action. 26 Eliz. Gerrard's Cafe, 4
Leonard 7. But if after Severance the owner of the Corn himſelf, or
any other by his Command, takes the Tithes away, the Husband and
Wife, in ſuch Cafe, may join in an Action upon the Statute of 2 Ed.
6. againſt the Owner, for not ſetting out his Tithes, notwithſtanding
that they were once fevered by him from the Nine Parts, for that ſuch
Severance is to be looked upon as fraudulent, only to evade the Law.
Noy 136. But it ſeems to me, that the Husband in this caſe hath an
Election either to charge the owner of the Corn in an Action of Tref-
paſs at Common Law, to be brought by himſelf alone for taking away
if the Hur
band dies.
I
his
Chap. LVIII. The Complete Incumbent. 633
&
9
Lú, 6.
زا
Where Two
Perſons
may
his Tithes after they were ſevered, or in an Action upon the Statute to, Suites on 2
be brought by himſelf and his Wife for taking away the Corn, the
Tithes not ſet out, even as before the Statute, in ſuch Caſe the Party
grieved might either have brought an Action of Treſpaſs at Common
Law, or have commenced a Suit for the Tithes in the Eccleſiaſtical
Court: But Quare, if there be not a Difference, when the Tithes are
immediately taken away by the owner of the Corn after they are fe-
verer'd, and when they are ſuffered to continue for ſome Tine upon
the Land after ſuch Severance.
If one be poſſeſſed of Tithes by ſeveral Titles, as where Part of When one is
them belong to the Parſon, and Part to the Vicar, who ſeverally make everal Ty
Leaſe of their Parts to one Perſon, ſuch Leſſee may bring one Action tles.
for the Subſtraction of theſe Tithes. Paſch. 3. Fac. Sir Richard Chau-
pernon v. Hill, 2 Cro. 68, fame Cafe, Noy 63, and I Brownlow 86.
So if the Land out of which Tithes are demanded lie in ſeveral Pariſhes,
yet one Action may be brought for the Subſtraction of them; and the
Plaintiff need not ſet forth how much of the Lands lie in one Pariſh, and
how much in the other, the Action being in nature of an Action of Tref-
paſs grounded upon the Wrong, not obferving the Statute. Paſch. 23 Car.
2. Pellow v. Kingsford, : Ventris 126, fame Caſe, 2 Keble 765, and 2
Levinz 2. But if the plaintiff only ſay, that the 'Tithes belonged to him,
and ſets not forth in what Pariſh the Lands lie, out of which Tithes are
demanded, this is nought if the Defendant demur to the Declaration ;
but if it go to Trial, and a Verdict be found for the Plaintiff
, this O-
miſſion of the Pariſh is help'd by the Verdict; by Roll's Trin. 1650.
Cane v. Pell Stile 229. Two ſeveral Perſons, who have Right to
Tithes, by ſeveral Titles, cannot join in one Action for the Subftraction not join.
of them, as the Parſon and Vicar in the Caſe aforefaid cannot join in
bringing an Action, Sir Richard Champernoon v. Hill, 1 Brownlow 86.
Yet it is faid, that Joint-tenants or I'enants in Common of Tithes
muſt join in an Action for the Subſtraction of them. Clayton's Rep.
Caſe 48. But Quære as to Tenants in Common, for that it ſeems
contrary to the Reſolution of Sir Richard Champernoon's Cafe laſt be-
fore cited.
If the Action be brought by a Parſon by Plaint, he need not name If he muſt be
himſelf Parſon in the Queritur, fòr if it appear by the Declaration that
he is Parſon, 'tis fufficient; but it is ſaid by Fleming Juſtice, that if
the Action be brought by Writ, he muſt name himſelf Parſon, al-
though he need not where it is by Plaint. Mich. 9 7ac. Willot v. Spen-
cer, i Brownlow 98. If the Action be brought tam pro Domino Rege
quam pro ſeipſo, it is not good. Mich.40 Eliz. Jones v. Carn, 3 Cro.
621, fame Cafe, Moor 911. Yet it is agreed, Mich. 4 Car. Luvered
and Owen's Caſe, Hetley 121, 122. That an Action upon this Statute
may be brought tam pro Domino Rege quam pro ſeipſo; the Reaſon
there given is, becauſe the King ſhall have a Fine, and the Parſon's
Counſellor 404, takes this Cafe in Hetley to be Law rather than the
Caſe in ž Cro. 621. Moor 911. Upon that Account only, becauſe the King's Fino
King is to have a Fine, if Judgment be given againſt the Defendant, and no Realon sa
mentions Actions brought upon the Statute of Hue and Cry, &c. to be ground the
within the fame Reaſon, upon which Statutes Actions are ſo brought :
quam.
But the Reaſon that the King is to have a Fine, ſeems to be no Reaſon
at all to bring the Action in the King's Name, for in many Adions
the King hath a Finc, and yet the Action not brought in his Name.
And I take both the Precedents and Practice to be generally againſt the
Parfori's
named Par
fon.
Action tam
Zzzz
634
The Clergy-Man's Law: Or, Chap. LVIII
nants, Socio
Suits on 2 Parſon's Counſellor, and according to Fones and Carn's Çałe, viz. to
&z Ed. 6. , bring the Action in the Name of the Party injured only, and not tam
pro Domino Rege, Ge. for a certain Duty being given by the Statute
which may be ſued for by Action of Debt. I ſee no Reaſon why the
Action ſhould not be brought in the Name of the Party only injured
by Subitraction of the Tithes
, and unto whom the Duty is given in
Recompence and Satisfaction of ſuch his Injury; and the Caſe ſeems
to differ from Actions upon the Statute of Hue and Cry, doc, which de-
mand Damages only, but not any certain Duty veſted in the injured
Party by the Statute. Bụt it is admitted in Jones and Cari's Cafe,
Moor 911, that an Information may be brought in the King's Name
grounded upon this Statute, againſt any Perſon for not ſetting out his
Tithes; and Paſch 26 Eliz. Savil 62, we find ſuch an Information
brought.
How againſt If "Two be Joint-tenants, or Tenants in Common, of Land, the
Joint-te-
Action muſt be brought againſt them both; but if one of them only
doth occupy the Land, the Action is to brought againſt him: Or if
one Joint-tenant, or Tenant in Common, ſets forth the Tithes, and
the other takes them away, the A&tion is to be brought againſt the
wrong Doer only. Mich. 8 Car. Cale v. Wilks, Hutton 1-21, 122, Sir
Richard Champèrmoon's Cafe, 2 Cro. 86, Mich. 12 7ac. Moyl v. Ewer,
2 Cro. 362. Hughes Abr. 687. But if the owner of Land fells the
Corn thereon growing, and the Vendor by the Command of the
Vendee reaps it, and carries it away without ſetting out Tithes, the
Action lies againſt the owner of the Land. Hill. 5. Jac. Rocheſter v.
Porter, Noy 152. Hele v. Fretenden1
, 1 Brownlow 34. And I fuppofe
the Action may alſo be brought againſt the Vendee at the Election
of the Plaintiff.
If it is not neceſſary for the Plaintiff in his Declaration to make
ſay he is the any ſpecial Title to tủe Tithes, or to ſhew any Deed to maintain his
Right to them ; for the Action is but in the Nature of Treſpaſs to re-
Proprietor
cover Damages, and to puniſh the Wrong and Injury the Plaintiff hath
ſuſtained by taking away his Tithes contrary to the Statute, and the
Plaintiff's 'Title only as an Inducement and Conveyance to the Action;
but it is fufficient to purſue the Words of the Statutę, and to ſet forth
in the Declaration that the Plaintiff is the owner or Proprietor of the
Tithes, &c. 12 Jac. Babbingtor's Caſe, Roll's 1 Rep. 13. Pellow and
Kingsford's Cafe, 1 Ventris 1 26.
It is not necefſary to ſet forth in the Declaration by whom the
Show by Corn was fown, the Action being brought againſt him who is Owner
of the Corn at the Time of Reaping thereof; but the Time and
Place where and when the Corn was carried away muſt be alledged.
Moly v. Ewer, 2 Croke 362. And although the Severance of the
Corn be ſhewed to be before the Sowing thereof, yet becauſe the Men-
tioning of the Time when the Corn was fown is fuperfluous and un,
neceſſary, -the Declaration is good notwithſtanding, Parſon's Counſel-
lor 404: So if the Taking away the Corn is alledged to be after the
Defendant's Intereſt in the Land determined, yet 'tis goods for the De-
fondant continues to be Owner of the Corn, notwithſtanding that his
Intereſt in the Land be ended before it be fevered. Trin. I'1 Jaci 2. Croke
325, fame Caſe, 1 Brownlow 123. Neither is it neceſſary for the
Plaintiff to ſet forth what Eſtate the Defendant hath in the Land, or
by what Right or Title he occupies it; but to ſay generally, that the
4
Defendant
Needs only
Owier or
Teeds not
whom the
Corn was
ſown, Cool
Chap. LVIII. The Complete Iņcumbent. .
635
1
Defendant is Occupier is ſufficient, March 21, 22. Nor need the Plain- Suits on a
tiff expreſs in the Declaration the Quantities or Loads of Corn, &c. & 3 Ed. 6.
carried away, 1 Brownlow 72. Nor the feveral kinds of it, 2 Inſtit. Needs not
650. 13 Coke 47. Townſend v. Clerk. 3 Keble 307. But in an Ejétti- Thew the
one firma hrought for Tithes, there the ſeveral Kinds ought to be ac. carried.
ſet forth, Henry Harper's Cafe, 11 Coke 25.b. and where in a Declaration
the Plaintiff ſet forth, that he was Proprietarius Decimarum Garbarılı
& fæni, &c. And that the Defandant did fow certain Land contain-
ing ſo many Acres in that Pariſh with Grain, and carried the ſame
away, not ſetting out the Tithes ; after Verdict for the Plaintiff
, it
was moved in an Arreſt of Judgment, that Proprietarins Decimarum
Garbarui was incertain, and no Grain in particular was demanded
by the Declaration, therefore the Declaration was not good: But it
was reſolved, that Garba in its proper Signification is intended of
Corn. And Rolle ſaid, that it had been ſo reſolved in one Baxter's
Cafe upon Conſultation had with the Civilians, where upon a Grant
of Decimas Garbarum the Party claimed to have Tithe-Hay; but a-
greed, that although the Word Garba in its Latitude did compre-
hend any Thing that uſeth to be bundled, as Wood, &c. yet after
Verdict it is to be intended of Corn only; and though the Demand
was of ſo many Acres of Grain generally, it was held to be certain
enough, it being mentioned to be fown on a certain Number of Acres,
this Action upon the Statute not being brought to recover the Tithes
themſelves, but Damages for them only. And it was alſo reſolved by
Rolle, that the Word Grain by common Conſtruction ſhall be meant
Corn, and not other Seeds not titheable. Mich. 24 Car. Southcote v.
Southcote, Allein 80. Stile 103, 108. Mich. 1650. Fairfax v. Fair-
fax, Stile 237, 238. And in Hill. 40 Eliz. it was reſolved, that the
gencral Allegation that the Defendant Grano ſeminavit 20 Acras
terræ, &c. without ſhowing what kind of Grain, was good, 2 Inft.
650. Coke, lib. intrat. 162. And it is ſaid to be the beſt Way in How belt to
Actions brought upon this Statute to declare generally, that the Plain- declare.
tiff is Parfon, Go. of ſuch a Pariſh, and that the Defandant had ſuch
'Tithes within that Pariſh; the ſingle Value whereof is ſo much, by
which the Action accrues to the plaintiff, to demand the treble Value
according to the Forni of the Statute; it is alſo ſaid that the Plaintiff
need not ſet forth, that he or the Defendant is Subditus Domini Regis
(although the Words of the Statute extend only to Subjects,) for that
thall be intended. I Siderfin 265. I Keble 922, nor need the Plain-
titf ſhow that the Tithes were not compounded for before the Corn
carried away, for this lies on the Defendant's Part to be made out.
Paſch. 18 Car. 2. Owen v. Evans, 2 Keb. 34. But where the Plain-
tiff in an Action upon this Statute for not ſetting out the Tithe of
Wood declared, that the Defendant had cut down Wood to the Value
of Two Hundred Pounds, and demanded Six Hundred Pounds as the
treble Value of the Tithes of the ſaid Wood, this Declaration was
lield not to be good, the Plaintiff of his own Shewing demanding
more for Tithe than the whole Wood was worth. Paſch. 5. ſac. Man v.
Somerton, i Brownlow 94. Yet where the Plaintiff declared, that the De-
fendant was Occupier of Twenty Acres of Land, quas quidem pre-
dict Thirty Acres he did fow, and carried the Corn away without
ſetting out the Tithes; there the Word [Thirty) was held to be void,
and that the Declaration was to be taken of the fame Twenty Acres
Z z zz 2
which
ܪ
636
.
The Clergy-Man's Law: Or, Chap. LVIII.
This Action
ons.
As to the
Plea.
Modus, Coc.
Suits on z which before he was faid to be occupier of. Pafch. 15 Car. 2. B. R.
& 3 Eci. 6.
Fanfaw v. Mildmay, i Levinz Rep. 97.
Note, That an Action grounded on this Statute 2 E. 6. for not fet-
not within ting out of Tithes, is held not to be within the Statute 21 Fac. C. 16,
of Limitati of Limitations, that Statute not extending to Actions grounded on A&is
of Parliament, therefore the Plaintiff is not by Law confined to Six
Years, or to any other Time certain within which to bring his Action.
Mich. 14 Car. Talory v. Jackſon, 1 Croke 513. Mich. 18 Car. 2.
Fones v. Pope, 1 Sanders 38. i Siderfin 305. i Keble 93. Paſch. 21
Car. 2. Hodfden v. Harridge, 1 Siderfin 415. 2 Keble 462, 497. 2 San-
ders 66.
The next Thing to be conſidered is, What Plea the Defendant
ought or may plead in an Action brought againſt him grounded on the
Statutc 2 E. 6. As to this, the Declaration being a Demand of a
Debt or Duty due to the Plaintiff from the Defendant, and veſted in
him by the Statute in Satisfaction of, or Recompence for the Tithes
fubftracted, the moſt common and uſual Plea is, Nil Debet, which is
a direct Anſwer to, and Denial of the Plaintiff's Demand; but Not
guilty is alſo held to be a good Plea in this Aation, that being a De-
nial of the Offence, and Breach of the Law charged upon the Defen-
dant in not ſetting out the Tithes according to the Statute, which
Offence is the Ground and Foundation of the plaintiff's Demand: See
the Caſe of Boxtry v. Iſted, Hobart 218. Trin. 42 Eliz. Hortley v.
Herpingham, 3 Cro. 766. Mich. 40 Eliz. Johns v. Carne, 3 Croke
621. Mich. 33 &
34 Eliz. Langley v. Haynes, Moor 302. Hill. 2 Fac.
Specia) Sir Richard Champernoon v. Hill, Moor 914. And both theſe Pleas
Pleas, as a
are the general Iſſue in this Action, but we find alſo that Defendants
have pleaded ſpecial Pleas, as a Modus, or other Diſcharge, and the
fame held good, as in Southcote and Southcote's Cafe, Aleyn 80, and
Bernerd and Evan's Cafe, Raymond 14, fame Cafe, 1 Keble 5,
where a Parol Diſcharge of Tithes for Years. was pleaded, but it
ſeems not uſual to plead ſuch ſpecial Matter, neither is it fo fafe as
the general Iſſue, wherein any Diſcharge of 'Tithes may be given in
Evidence, and may alſo admit of ſome Queſtion, Whether
upon a
fpecial Demurrer for that Caufe ſuch ſpecial Pleas are good, as amoun-
ting only to the general Iſſue?
The Caufe being at Iſſue, and brought to Trial, it is alſo neceſſary
to be ſhewed, what Evidence is requiſite and material to be given by
be given. the Plaintiff to maintain his Action" ſo as to obtain a Verdiet; and alſo
what Evidence the Defendant may or ought to give to excuſe or juſtify
himſelf from the Penalty given by the Statute.
Evidence by
Firſt, If the plaintiff be Parſon, Vicar, or other Eccleſiaſtical Per-
a Parſon, &c. fon, and claims the Tithes in the Right of the Church or Benefice
Plaintiff, to whereof he is Incumbent, he is in Strictneſs bound to prove his Inſti-
ftitution and tution and Induction, and all Things elfe required by Law to qualifie
Induction, himſelf to be Incumbent of that Church whereunto the Tithes do be-
long; but if the plaintiff hath been for ſeveral Years in Poffeffion of
his Living he is not ordinarily put to prove theſe Matters, unleſs the
Defendant in his Defence ſhew fome Reaſons why theſe Things ought
to be proved and made out; but the Law doth not determine how
many years the Plaintiff ought to be in Poſſeſſion of his Benefice to
excuſe him from being put to prove theſe Things, but that ſeems to
be left to the Diſcretion of the Judge who tries the Cauſe. We find
it reported, that in a Suit of Tithes-brought in the Spiritual Court
As to the E-
vidence to
E.
the
3
Chap. LVIII. The Complete Incumbent.
637
the Defendant pleaded, that the Plaintiff being Parſon had not read Suits on 2
& 3 Ed. 6.
the Nine and thirty Articles, and the Court put the Defendant to
prove that Matter, although it was a Negative, whereupon the Defen-
dant moved for a Prohibition, which was denied : For by Coke and negative to
Dodderidge, the Law doth preſume that a Parſon hath read the Arti-
cles, becauſe otherwiſe he is to loſe his Benefice ; and where the Law
prefumes the Affirmative, there the Negative ſhall be proved. Mich.
12 Fac. Monk v. Butler. Roll's i Rep. 83. So it is ſaid to have been
ruled
upon Evidence at the Aſſize, that all Things requiſite to make
the Plaintiff Compleat Incumbent ſhall be preſumed, unleſs the Defen-
dant by fome Evidence to the contrary, give Occaſion to the Plaintiff
to prove thoſe Matters. Clayton's Rep. 83. Yet in an Eje&tione firme If in Eje&t-
for a Rectory, it was inſiſted on by the Defendant's Counſel, (after the ment, the
Plaintiff had made Proof of his Admiſſion, Inſtitution and Induction) muſt prove
that the Plaintiff ought to prove his Reading and Subſcribing the Arti- his Reading
cles, and the Declaration of his Aſſent to all Things contained in the cles, Inc.
Book of Common Prayer, and that ſuch Declaration of his Aflent was
made within the Time appointed by the Statute: And by the Report
of the Cafe one may collect
, that the Opinion of the Court ſeemed
to be, that all theſe Things ought to be proved; but it is there faid,
that Admiſſion, Inſtitution and Induction upon the Preſentation of an
Eſtranger is ſufficient Evidence to bar the Plaintiff in an Ejectione fir-
ma, and to put him to his Quare Impedit. Mich. 16 Car. 2. Sow Lef-
fee of Dr. Crawley .v. Philips. 1 Sid. 220. But according to the Opi-
nions of Coke and Dodderidge before-mentioned, for that the Plaintiff
having once a legal Title by Inſtitution and Induction, the other Mat-
ters appointed by the Statute to be after performed by him, the Omiſſion
of any of which, although it make the Living void, yet being as a
Condition ſubſequent to the plaintiff's Title, ſhall be preſumed to be
performed by him, and therefore the Non-performance ought to be
made out and proved by the Defendant.
The Plaintiff muſt alſo prove that the - Lands lie within his Pariſh, That the
and that the Corn, &c. growing thereupon was carried away, and he the Pariſh,
muſt alſo prove the value of the Corn, &c. and if the plaintiff be yc.
a Lefſec he muſt prove his Leafe, but after a long Poſſeſſion he need not,
nor need he prove what Eſtate his Leſſor had at the Time of the Leaſe
made. 1 Siderfin 220.
The Plaintiff having made out his Cafe, and proved his Title to
the Tithes, it is then incumbent on the Defendant to juſtifie or excuſe ting out the
himſelf. In order to which, the Defendant muſt prove that the Tithes Tithes, Esc.
were juſtly ſet out according to Law, and the Cuſtom of Tithing uſed
within that Pariſh; and if the Tithes be once ſo duly ſet out, and af-
ter that taken away by a Stranger, the Defendant Owner of the Land
thall not be chargeable. So the Defendant may prove an Agreement
or Compoſition made with the plaintiff for the Tithes, and though it
be a Parol Agreement only, which by Law is not ſufficient to grant
the Intereſt of the Tithes, eſpecially for more Years than one, yet
ſuch a Parol Agreement is ſaid to be good to excuſe the Defendant
from the Forfeiture given by the Statute. Pafch. 13 Car. 2. Bernard
». Ewers. Raymond 14, fanie Cafe. 1 Keb. 21. i Lev. 24. Paſch. 24
Car. 2. Knight & alv. Peepes. 3 Keb. 24. And if there be Two
Plaintiffs who bring the Action, an Agreement with one of them only
is ſufficient, and ſhall bind his Companion. Moor 915. The Defendant
may
Defendant's
Proof of ret.
638
The Clergy-Man's Law: Or, Chap. LVIII.
Thc Defen-
Where the
Suits on 2 may alſo prove that another Perſon hath the Right to the Tithes, to
& 3 Ed. 6., whom he has paid them, or compounded for them.
The Defendant may alſo prove that the Plaintiff obtained his Li-
dant may ving by Simony, or did not read the Articles, or is guilty of ſome other
ny, or other A& or omiſſion which makes his Benefice void, or he may prove a
A& or Omiſ- Leaſe, Grant, or other Title from the Plaintiff, or from ſome other
fion, .
Perſon under whom the Plaintiff claims, who had Right to leaſe or
grant ſuch Tithes. And as it ſeems, the Defendant may prove that
the Benefice is above 8 l. per Ann. Value, and that the Plaintiff hath
accepted another Living without Diſpenſation, contrary to the Statute
21 H. 8. c. 13. 1 Croke 357. , So may the Defendant prove a Modus
Decimandi, or any other Diſcharge of the Tithes, or the Payment of
them, by Preſcription, Privilege, Unity, Gc. and a Non-papment of
Tithes ſ'ime out of Memory is good Evidence of ſuch Diſcharge.
Hobart 300, 311. Savil 62. 3 Keb. 217. Dyer 349. b. Parſon's Coun-
ſellor 338. But if the Diſcharge be by the Pope's Bull or Compoſition, a
Copy of ſuch Bull or Compoſition is not Evidence without ſhewing
the Bull or Compoſition it ſelf. Bret v. Ward, Winch 70. So Depo-
ſitions taken in the Eccleſiaſtical Court in a Suit there for Tithes, (al-
though the Witneſſes be dead) are not Evidence in an Action brought
at Common Law; but a Sentence given in the Eccleſiaſtical Court in
a Suit for Tithes, (it being a judicial Act) may be given in Evidence
in an Action brought in the Temporal Courts
. Mich. 13 Car. the
Earl of Sarum v. Sir Brocket. Spencer. Roll's 2 Abr. 679. March
820.
If the Jury give a Verdiet for the Plaintiff
, they muſt find the real
Jury must
Value of the Tithes, which ſhall be trebled by the Court ; as if the
Jury find the real and ſingle Value to be Twenty Pounds, Gc. they
ought to give the Plaintiff only ſo much, and the Court ſhall treble it
,
and make that Sum given by the Jury to be Sixty Pounds, which is
the treble Valuc; ſo was it done. Hill. ii Fac. Baldwin v. Gerreys,
Godbolt 341. But if the Iſſue be upon the Cuſtom of Tithing, or any
other collateral Point, the Jury then need not find any Value of the
Tithes, for that in ſuch Cafe the Defendant ſhall pay the Value ex-
preſſed by the Plaintiff in his Declaration, becauſe by the collateral
Matter pleaded in Bar, the Value of the Tithes ſet forth in the De-
claration is confeſſed, as was refolved in Cofterdani's Cafe, cited in Oli-
ver and Collin's Cafe. Paſch. 6 Fac. i Brownlow 100, fame Cafe.
Yelverton 127. Therefore in all Actions brought upon this Statute, if
the Defendant plead any collateral Matter in Bar of the Action, he
muſt take the Value of the Tithes mentioned in the Declaration by
Proteſtation, viz. he muſt by the Form of a Proteſtation aver, that
the Tithes were not of that Value as is declared, otherwiſe he
will be charged with the Value the plaintiff hath by his Declaration
fet
upon them. Mich. 24 Car. 2. Dame Bowles v. Broadhead. Alleinz
88. Paſch. 16 Car. 2. Williams v. Inhabitants of Upwood, &c. i Keb.
706. And by Jones Juſtice, the fame Law it is, if Judgment be gi-
ven for the Plaintiff by Nihil dicit, non fum informati's, or upon De-
murrer, for in thoſe Caſes the Plaintiff ſhall have Judgment for the
whole Value by him demanded. Parſon's Counſellor 410.
But the Plaintiff ſhall not recover any other Damages or Coſts, but
Regula.
only the treble Value of the Tithes. Moor 915. 2 Croke 70, and 7:1-
kins 316, for it ſeems to be a Rule, that where a Statute gives a cer-
find the Va-
lue.
3
tain
Chap. LVIII. The Complete Incumbent. 639
& 3 Ed. 6.
Two, and
3 B,
tain Penalty, there in an Action to recover that Penalty Damages and Suits 017 2
Colts ſhall alſo be recovered; but where no certain Penalty is given,
(as by this Statute for not ſetting out the Tithes) there 'tis otherwiſe
.
Richardſon
374,
If the Action be brought againſt two or more Defendants, and the If the Action
Verdict finds for the Plaintiff againſt one of the Defendants only, and
be against
acquits the reſt, the plaintiff ſhall have Judgment againſt him, againſt one is ac-
whom the Verdict
: paſſeth, the Action being grounded upon a Statutė, quitted,
although it be otherwiſe in Actions grounded upon Joint Contra&s at
Common Law; by Rolle Chief Juſtice, in Brown and Nelſon's Cafe,
Stile 317, 318. But if the Action be brought for Predial Tithes, for which
an Aćtion lies upon the Statute, and alſo for ſmall or other Tithes,
for which no Action lies upon the Statute, and the Plaintiff obtains a
Verdict for the whole, yet he ſhall not have Judgment upon ſhewing
this Matter to the Court, for that the Plaintiff ought not to recover
in an Action upon the Statute for any other Tithes but for Predial
Tithes only, İrin. 8 Jac. Pain v, Nichols
, 1 Broşunlaw 05. Hill. 9
Jac. Mortimer v. Freeman, 1 Brownlow 70.
In Actions grounded on the Statute of 2 E.6, if Judgment be given Defend' in mi-
fericordia.
for the Plaintiff, the Judgment ſhall be, Quod Defendens ſit in miſe-
ricordia, and not Quod capiatur, becauſe the. Action is to recover a
Debt given by the Statute as a Recompence for the Tithes. Roll's' L
Abr. 223. Mich. 16 Car, 2. B. R. Probee v, Signeur Marquis de Dor-
cheſter. I Sid. 233, and Mich. 1 W. & M. B. R. Bickerſtaff v. Hol-
deň. And a Recovery by the Plaintiff in an Action upon this Statute Accovery in
of 23 E6, is a good Plea in Bar to any other Suit brought after this Suite
for the ſame Tithes, Pafch. 3 Jac, Sir Richard Champion v, Hill
. bisherigens
· Brownlow 87, fame Cafe, Pelverton 63;
I
3
:
::
1
is
:
!
A D
:
1
640
A DDEND A.
The Reader is deſired to inſert under their proper Heads in the
foregoing Chapters the following Rules and Caſes of the Common
Law, for the better Explanation of divers Particulars before men-
tioned, viz.
Firſt, Of Erecting and Confecrating Churches.
Secondly, Of Rates for repairing of Churches.
Thirdly, of repairing and ordering of Seats in Churches.
Fourthly, of repairing Chancells, and ordering the Seats thereof.
Fifthly, Of Chapels under the Mother-Church.
Sixthly, of Free Chapels, &c.
Firſt of Erecting and Conſecrating Churches. .
T
Codex p. 12.
HE Author of the Codex lays it down as a Rule of the
Vide Noy 67.
Common and Civil, as well as the Canon Law, That no
Perſon may ere&t a Church without the Leave and Conſent of the
Biſhop, and ſays, That it was made an expreſs Law of the Church
of England in a Council at Weſtminſter, vide Spelm. 2 Vol. p. 41, and
that this Right of the Biſhop could not be defeated by an Exemption
of Religious Perſons from Epiſcopal Juriſdiction, &c. And he cenſures
3 Inf.p. 201. my Lord Coke for ſaying, That by the Common Law and General
Cuſtom of the Realm, Earls, Barons, and other Lay-Perfons might
have built Churches in their own Poſſeſſions without Conſent of the Bi.
Shop; and though my Lord Coke has urged the Authority of the Let-
ter of King John and his Baronage or Parliament, to the Pope, in Con-
firmation of what he ſays; yet ſays the Codex, whether that Letter
be true or not true, is now only Matter of Speculation, and that ma-
ny Years before, in the Reign of King Stephen, the contrary had been
made a Law of the Church of England in the above-mentioned Coun-
cil of Weſtminſter, and the Pope's Anſwer thereto, &c. From whence
we may obſerve, That the Authority of a Canon and the Pope's Ap-
probation, is of more Weight with the Codex, than that of King John
and his Baronage, or Parliament.
Another Rule of the Codex is, That after a new Church is ere&ted,
it may not be conſecrated without a competent Endowment, and he
3 Inf. 202. quotes feveral Canons and the Civil Law to that Purpoſe ; upon which
Head my Lord Coke ſays, Though they might build Churches without
Noy 117. the King's Licence (which Noy denies, becauſe they are Sanctuaries)
(but note the Erection does not make them ſo) yet they could not
make a Spiritual Politick Body to continue in Succeſſion, and be ca-
pable of Endowment, without the King's Licence. But by the Com-
mon
2
A D D E N D A.
641
mon Law before the Statute of Mortmain, they might have endowed
ſuch Spiritual Bodies without any Licence whatſover ; which Body fo
incorporated is not diſſolved, though the Church is drowned, or other-
wiſe deſtroyed. For in that Cafe one may be preſented to the Recto- 1 Mod. 209.
ry, and ſhall be liable to Annuities and other Charges; the Church
(in Conſideration of Law) being properly the Cure of Souls and the
Right of Tithes.
Å Third Rule of the Codex, is, That Churches may be conſecrated
09 any Day of the Weck. And
A Fourth Rule; That at the Confecration of Churches Divine Ser-
vice ought to be perforined. Alſo
A Fifth Rule, That in the Conſecration of new Churches Proviſion
is to be made, That no Damage accrue in Point of Right or Reve-
nues to any other Church : Which three laſt Rules we may well ad-
mit to be founded on good Reaſon, and conſequently conſonant to the
Common Law. But
The Sixth Rule, That a Church once conſecrated may not be conſe-
crated again, is by the Codex admitted to have ſome Exceptions, as
where it is polluted with Blood, &c. in which Caſes the Canon Law
enjoins a Reconſecration, though the Common Method here in Eng-
land has been only a Reconciliation. As where a Chapel in the Sub-
urbs of Hereford, which once belonged to the Priory of St. John of
Jeruſalem, had been from the Time of the Diſſolution apply'd to ſe-
cular and prophane Uſes, being a Stable for Horfes, &c. yet becaufo
the Walls and Roof thereof were never demoliſhed, a Reconciliation
was adjudged ſufficient; and a like Inſtance of another Chapel is there
cited.
On the contrary, when the Church of Southmalling in Kent, had Codex 113,
not only been polluted per Beſtias, Gc. but was alſo new built, and
then uſed for Divine Offices without any new Confecration, Archbiſhop
Abbot interdicted the Miniſter, Church-Wardens and Pariſhioners, al
ingresu Ecclefia, co till the ſaid Church and Church-Yard were re-
conſecrated.
The Seventh Rule is, That the Law takes no Notice of Churches
or Chapels, till confecrated by the Biſhop; and therefore whether a
Church or not, or a Chapel or not, ſhall be certified by the Biſhop:
But the Canon Law ſuppoſes, That with the Biſhop's Confent Divine
Service may be performed, and the Sacraments adminiſtred in Churches
or Chapels not confecrated; and the Codex fays, there have been ma-
ny
Licences to that Effect granted on ſpecial Occaſions: But we may
here Quære, if there were any ſuch Licence granted for the Banquet.
ing Houſe at Whitehall ? For as I am well aſſured it was never con-
ſecrated either as a Church or Chapel s ſo the only Reaſon given why
it was not, is, For that it could never be employed to any ſecular Uſe
had it been once confecrated ; and therefore 'twas thought adviſable to
appropriate it for the Uſe of Divine Service, Preaching, Gc. by the
King's Licence only.
The Eighth and laſt Rule is, That a reaſonable Procuration is due
to the Biſhop, who conſecrates a Church, from thoſe who pray Such Coria
ſecration ; not for the Confecration of the Church, but for the neceſ
ſary Refreſhment of the Biſhop and his Servants. For that this draws
him oftentimes to a great Diſtance from his Palace, where proper
Accommodations cannot be caſily procured ; and therefore, though at
first the Demanding or 'Taking any thing for Conſecration was forbid,
Ааааа
уер
642
ADDENDA
yet afterwards 'twas admitted, but limited to a certain Price : But
this by Uſage is now become different in different Dioceſes.
Note. In Archbiſhop Warham's 'Time, there is charged as Procurs-
tion-Money for confecrating three Churches in the Dioceſes of Both
and Wells, 101. i. e. 31. 6 s. 8 d. cach.
Secondly, The Rules in the Codex concerning
Rates for Repair of Churches, &c. are,
Cod ex 219.
,
Scxton's
1. The Cognizance of Rates made for Reparation of Churches and
Church-Yards belongs to the Spiritual Court : This ſays the Codex, is
the Conſequence of the Stat. 13 El. And that purſuant hercto, Pro-
hibitions have been often denyed, and Conſultations granted by the
I Cio. 659. Temporal Courts. To which Purpoſe it cites ſeveral Cafes, viz. Pci-
get v. Crumpton in i Cro. An Anonymus Cafe in Latch. 203; allo
Longmore v. Churchyard, ibid. 217. the Cafe in Popham 197. 1 Vent.
308. Roll's Abr. 230.
II. Rates for Reparation of Churches are to be made by the Church-
Wardens, together with the Pariſhioners aſſembled, upon Notice to be
1 Pentr. 367. given in the Church. Noy 61. i Mod. 79. And the major Part of
then that appear ſhall bind the Pariſh, i Mod. 236, or if none appear,
the Church-Wardens alone may make the Rate: 1 Mod. 79, 194.
2. Mod. 8, 223. Becauſe they and not the Pariſhioners are to be cited
and puniſhed for a Defect of Repairs; but the Biſhop cannot direct a
Commiſſion to rate the Pariſhicners, and appoint what each ſhall pay:
This muſt be done by the Pariſhioners or Church-Wardens as afore-
faid, and the Spiritual Court may inflict Cenfures till they do.
III. A Rate for Reparation of the Fabrick' of the Church is real,
Church Or- charging the Land and not the Perſon ; buta Rate for Ornaments is
naments. perſonal upon the Goods, and not upon the Land. And a Cafe in
2 Roll's Abr. 262, 270, is cited, where it is agreed, the Rate there
bcing for Church Ornaments, and the Sexton's Wages. And becauſe
Wages.
the Party liv'd out of the Pariſh, though he occupicd Lands in it, he
was declared to be unduly rated; and further agreed, That a Fo-
rcigner ſhall not be charged for repairing Seats in a Church, Go. So
in Hoodward's Cafe. 4.7ac. 2. a Tax being lay'd for the Bells, Go.
a Prohibition was granted on Suggeſtion, that the Party was not an
Inliábitant of the Pariſh : And the Court gave this Reaſon, Bécauſe
tis a perſonal Charge, to which only Inhabitants are liable, and not
ſuch who only cccupy in that Pariſh and live in another.
IV. A Rate for repairing the Fabrick ſhall be laid on all Lands
within the Pariſh, though the Occupiers live in another. This Point
was fully ſettled in Jeffery's Cafe, where 'twas alſo refolved, 'That
ſuch Occupying of Lands makes the Occupier a Pariſhioner, (though
not an Inhabitant) and entities' him to come to the Aſſemblies in the
fame Pariſh, when they meet for ſuch Purpoſes. And though ſeven
Cro. 659.
Years after in Paget and Crumptor's Cafe, a Prohibition was ob-
tained on Surmiſe, that the Party lived not in the Pariſh ; yet on the
Sight of this Precedent, Popham Chief Juſtice changed his Opinion ;
and it was reſolved, ut ſupra, by him and the whole Court, and ſo the
Lai now ſtands. And it has alſo been declared, That if a Man take
a Leaſe of a Stall in a Market-Town, where he uſes once a week to
fell his Wares, but lives in another Pariſh, he ſhall not be charged to-
wards the Repairs of the Church in the Market-Town. 2 Roll's Abr. 288.
4
y. Where
Church
Scats.
Bells.
to. 64
ADDEND A.
643
V. Where ſuch Lands are in Farm, not the Lelor but the Tenant's Co. 6;.
Shall pay. For there is an Inhabitant and Pariſhioner who may be
charged; and the Receipt of the Rent does not make the Leffor a
Pariſhioner ; (but the Occupying of the Land) and herewith agrees
the Caſe in 4 Mod. 148.
VI. An Impropriator of a Rectory or Parſonage, though bound to
repair the Chancel, is alſo to contribute to repair the Church, in Cafe
he has Lands within the Pariſh. 2 Rollo 2i1. Serjeant Davy's Caſe.
VII. The Inhabitants of a Precinct where there is a Chapel (tho' 2 Roll. 265.
it is a Parochial Chapel and they do repair it) are of common Right Hob. 66.
contributory to the Repairs of the Mother-Church. And if they
have Scats at the Mother-Church, to go thither when they pleaſe, or
receive the Sacrament, or Marry, Chriſten, or Bury at it, there is no
Pretence for a Diſcharge. Nor can ſuch a Plea be allowed, but where
they have been diſcharged Time out of Mind (which is alſo a Doubt)
or that in Conſideration thereof, they have paid fo much to the Repair
of the Church, or Wall of the Church-Yard, or keeping a Bell, or
the like Compoſitions. Vide Hobe 66. 2 Lev. 186. 2 Roll: 290. Noy 41.
3 Keb. 791
VIII. If a Church is ſo much out of Repair; that it is neceſſary to
pull it down; or ſo little that it needs to be enlarged; the major Part
of the Pariſioners (having firſt obtained the Ordinary's Conſent to 1 Mod. 236.
do what is needful, and meeting upon due Notice) may make a Rate 2 M.ch 222.
for that Purpoſe. This was declared for Law, by all the three Courts
ſucceſſively, 29 Car. 2. tho' this Cauſe was much laboured econtra by
a great Number of Quakers.
ix. The Hall of a Company being rated to Church Repairs, the Spi-
ritual Court in Caſe of Non-payment; may proceed againſt the Maſter
and Wardens of ſuch Company. For the Hall is liable to pay, and they
cannot proceed otherwiſe than by Citation, which may be executed
upon an aggregate Corporarion ; and therefore their Officers are to be
cited, and the Rule paid by them is to be allowed on their Accounts:
.
Thirdly, The Rules for repairing and order-
ing of Seats, are,
I. Of common Right the Soil and Freehold of the Church is the Codex 221.
Parfori's, the Uſe of the Body of the Church and the Repair of it coin-
mon to the Pariſhioners, and the Diſpoſing of the Seats therein the
Right of the Ordinary. And generally though the Pariſhioners repair,
the Ordinary ſhall diſpoſe of the Seats. L. But
II. An Ijle in a Church which hath Time out of Mind belonged to
a particular Houſe, and been maintained and repaired by the Owiler
of that Houſe is part of the Freehold, and the Ordinary cannot diſ-
poſe of the Seats, or intermedle in it. For the Law preſumes it to
have been erected by his Anceſtor, or thoſe whoſe Eſtate he has, and
thereupon particularly appropriated to ſuch Houſe ; and the ſame may
be faid of Chapels annexed to the Houſes of Noblemen, &c. the Seats
&c. whereof are out of the Power of the Ordinary : But otherwiſe, 2 Roll. Abr.
it is, if he has uſed only to fit and bury in the Ife, and not repair'd it; 288. 2 Cro.
for the conſtant Sitting and Burying there does not gain any peculiar
. Cro. 366.
Property therein ; and if it be repair'd at the common Charge of the
Pariſh, the common Right of the Ordinary takes place in appointing
from Time to Time, who of the Pariſhioners may fit there. But
Ааааа 2
ز
III. A
644
AD DE N.D A.
Pop. 140.
2 Roll. 24.
Moor 878.
I sid. 88.
i Lev. 71.
Leu. 73.
3
III. A Seat cannot be granted by the Ordinary to a Perſon and his
Heirs abſolutely. For the Scat does not belong to the Perſon, but only
as he is an Inhabitant (or Pariſhioner); and if one that has a Seat, or
his Heirs, go and dwell in another Pariſh, they cannot retain the Seat
(vide infra 4.) Yet
2 Bulſtr. 151. IV. Á Seat in the Nave or Body of a Church may be preſcribed for
as belonging to a Houſe. But a Reparation thereof by the Perſon,
&c. pleading ſuch Preſeription, and praying a Prohibition thereupon,
mult be alledged, becauſe the Ordinary Prima facie has the Right
thereto. But in two Caſes Reparation need not be particularly plead-
ed. ift. in Caſe of Preſcription for an Iſle ; becauſe by the common
3 Keb. 376. Law, the particular Perſons are ſuppoſed to repair, and ſo need not
thew it; and the Foundation of ſuch Right may be for other Cauſes
than Repairing, as being the Founder, or having been contributory
to its Building, &c. 2dly. Where an Action on the Cafe is brought
for diſturbing one in his Seat, the Diſturber being a Stranger, and ha-
Ray. 52.
ving no Right prima facie, the Poſſeſſion of the other is a ſufficient
Ground of Action, and he need not alledge Reparation.
I Inft. § 184. V. A Seat cannot be claimed by: Preſcription as appendant to Land
but to a Houſe, to which it belongs in reſpect of its Inhabitants; and
yet it has been held, that a Seat in an Idle may be preſcribed for by an
Inhabitant of another Pariſh.
VI. As a Seat in a Church, fo Priority or the upper Place in a Seat
may be preſcribed for. See for this, Noy 78. Palm. 424. Latch. 116.
And Note
VII. A Cuſtom Time out of Mind of Diſpoſing of Seats by the
Lutw. 7032. Church-Wardens and major part of the Pariſh, or by Twelve, or any
particular Number of the Pariſhioners, is a good Cuftom. And if the
Ordinary interpoſe, a Prohibition will be granted. But the Author of
the Codex hopes that this will be obſerved by the Ordinaries, &c. To
the End Such private Practices and By-Laws (as he terms thoſe Cu-
ſtoms) may not grow so ſtrong, as to make Head againſt the Ecclefia-
ftical Furiſdi&tion. Ecce homo.
2 Roll. 24.
Conex. 222.
Codex. 223.
2 Vert. 219.
Fourthly, Of repairing the Chancel
, and diſ-
poſing the Seats therein.
I. The Parſon is prima facie bound to repair the Chancel; not be-
caufe the Freehold thereof is in him, for fo is the Freehold of the
Church. But by the Cuſtom of England, the Repair of the Church
5 Mod. 339. belongs to the Pariſhioners, and of the Chancel to the Parſon ; yet if
the Cuſtom has been for the Pariſh in general, or any particular Per-
ſon's Eſtate therein, to repair the Chancel, ſuch Cuſtom is good. But
the Codex obſerves, That the Common Law Books ſay nothing of any
Obligation reſting either on the Parfon or Vicar to repair the Chancel.
2 Mod. 254. Quare of this. For he ſays,
II. As Rectors or Spiritual Perſons; ſo alſo, Impropriators are bound
of Common to repair Chancels : This is generally admitted, and the
only Doubt has been in what Manner Lay Impropriators ſhall be com-
pelled to do it, whether by Spiritual Cenfures only (as Pariſhioners
are as to Repairs of the Church), Since Impropriations are now Lay
Fees, or by Sequeſtrations, (as Incumbents, and it ſeems all Spiritual
Impropriators are,) ſince Inipropriations, before they became Lay Fees
were liable to Sequeſtrations. "And the King was to enjoy them in the
2 Vent. 35.
1 Mod. 258.
3
fame
A D D E N D A.
645
✓ Roll. 211.
fame Manner as the Religious had donc ; and nothing was conveyed but
what they enjoyed i.e. the Profits, over and above the Finding Divine
Service, Repairing the Chancel, and other Eccleſiaſtical Burdens. And the
general Saving in 31 H. 8. cap. 13, of all Rights which any Perſon had
before, is by the Codex extended to a Saving of the undoubted Right
of the Ordinary in that Particular. Notwithſtanding which he admits
this Point to have been twice under Conſideration at Common Law,
in the Reign of King Charles II. Annis 22 do 29. And that as in the
firſt Caſe, the Court inclined there could be no Sequeſtration, fo in
the ſecond, the whole Court beſides Atkins held, that a LayImpro-
priator was not to be ſequeſtred.
III. Repairing of the Chancel is generally a Diſcharge from con-
tributing to the Repairs of the Church. And therefore it was declared
in Serjeant Davy's Cafe, That no Doubt but the Impropriator was
ratable to the Church for Lands, which were not Parcel of the Par- 2 Kebo 730,
fonage, notwithſtanding he was as Parfon bound to repair the Chan-
cel; ſo when this Plca of the Farmer of an Impropriation, to be ex-
empted from a Pariſh Rate, becauſe he repaired the Chancel, was rc-
fuſed in the Spiritual Court ; 'tis probable the Plea was offered in or-
der to exempt other Poſſeſſions alſo from Church Rates.
IV. Seats in the Chancel are under the Diſpoſition of the Ordi-
nary, in like Manner as thoſe in the Body of the Church are. But
this is only an Aſſertion or Speculation of tlie Codex, and ſupported by
no Authority; and I take it in moſt Country Churches the Seats in
Chancels are appropriate to peculiar Houſes or Families. And
V. The chief Seat in the Chancel belongs to the Rector Impropri- Nos. 133.
ate, as was reſolved in the Court of B. R. 7 Jac. 1.
7 42.
Fifthly, Of Chapels under the Mother-Church.
Kennet's
;.
I. Of Chapels ſubject to a Mother-Church, fome are meerly Chapels
of Eale, others are Chapels of Eaſe and Parochial. A Chapel meer-
ly of Eaſe, is ſuch as is not allowed a Font, Sacraments or Burials,
but is uſed only for the Eaſe of ſome part of the Pariſhioners in
Prayers and Preaching, and commonly the Curate thereof is remova-
ble at the Pleaſure of the Parochial Miniſter'; though as Lyndwood
obſerves, it may have the Rights of a Parochial Chapel by Cuſtom :
Antiq. 595
But where a Chapel is inſtituted, though with Parochial Rights, there a Roll. 126.
is uſual (if not always) a Reſervation of repairing to the Mother-
Church on a certain Day or Days, in Order to preſerve the Subordi-
4 Leon. 24.
nation. But
II. A Chapel may preſcribe for Tithes againſt the Mother-Church;
fo ſays Lyndrood. And in the Caſe of Saer and Bland, when the
Parſon libelled for Tithes againſt the Inhabitants of a Hamlet, where
was a Chapel of Eaſe; and 'twas ſhewn on the other Side, that Time
out of Mind, the faid Hamlet had found a Clerk to do Divine Ser-
vice in the ſaid Chapel, with Part of their Tithes, and (what was an
uſual Compoſition upon the Erection of a Chapel) paid à certain Sum
to the Parfon and his Predeceſſors-for all 'Tithes; the Preſcription was
held good, and a Prohibition granted.
III. The Repairs of a Chapel are to be by Rates on the Landi.old-
crs within the Chapelry', in the ſame Manner as the Repairs of an
Church, and such Řates are alſo to be enforced in like Manner. But
Repairing the Chapel is of it ſelf no Diſcharge from repairing the Mo-
ther-
646
ADD E N D A.
yet
2 Roll. 126.
i Inft. 344.
i Roll. 126.
ther-Church, which though at the firſt View it may ſeem hard,
has this Rcaſon to ſupport it, that all Chapels and Diſcharges from
attending Service at the Mother-Church were originally Matters of
Grace and Favour; and the Eaſe or Convenience of particular Inha-
bitants ought not to be purchaſed with Inconvenience and Damage to
the Mother-Church.
IV. If the 'Patron of a Chapel do preſent to that Chapel, it ſhall be:
come a Church, and be preſentative. This was affirmed by Dodderidge
and afſented to by Coké in B. R. 12 Jac. 1. agreeable to what is faid
elſewhere of Donatives, that if the true Patron preſents, and his Clerk
is admitted and inſtituted, it is become preſentable, and ſhall never be
Donative after ; yet if one is Patron of two Churches, and preſents to
one only as the Mother-Church cum Capella de (naming the other)
Saville. Cafe
that other having been originally a diſtinct Pariſh Church ſhall ſo re-
46. main, notwithſtanding ſuch Preſentment, and that ever ſo often re-
peated.
V. A Chapel or no Chapel (ſays the Codex) ought to be try'd by the
Spiritual Judge : For a Chapel dependant on a Mother-Church can-
not be founded but with Licence to the Ordinary; and the Codex urges
for this the Opinion of my Lord Coke, that a Chapel is Spiritual as
well as a Church ; and where two Spiritual Things are to be try'd,
ño Prohibition ſhall go, even as it goes not when a Modus is pleaded
in a Diſpute between two Spiritual Perſons (viz. the Rector and Vi-
car) about Tithes. But note, there is a manifeſt Difference between
the Rights of a Chapel which may be Temporal, and thoſe of Tithes
which are Spiritual.
VI. a Queſtion be depending, whether it be a Chapel of Eaſe or
a Pariſh Church, it ſhall be try'd (as to the Rights, the Limits, c.)
in the Temporal Court ; and ſo if the Queſtion be, whether a Cha-
pel of Eaſe or a Parochial Chapel; and ſo are the Bounds of Pariſhes,
&c. to be there try'd. All which do greatly check the Proceedings
of the Spiritual Courts, not only in Cafes of Tithes, but in other
Matters alſo, as in Suits for not frequenting the Pariſh Church, not
contributing to the Repairs, &c.
Sixthly, Of Free Chapels, &c.
1. The Diſtinction of Free Chapels is grounded on their Freedom
or Exemption from all ordinary Juriſdiction : Other Reaſons, ſays the
Codex, have been aimed at, but that this is the true one ſeems plain
from the Form of the Writ in the Regiſter 40 b.
II. Free Chapels may continue ſuch in Point of Exemption from ordi-
nary Viſitatioii, tho' the Head or Members receive Inſtitution from the Or-
dinary. This, ſays the Codex, appears beyond Exception from the King's
Preſentation of a Prebend of the Free Chapel of Haſtings, made to
the Biſhop of Chicheſter, and a royal Mandate reciting the Admiſſion
and Inſtitution. Vide Codex 236.
III. The King may erect á Free Chapel, and exempt it from the
Juriſdi&tion of the Ordinary. This he may undoubtedly do ; and I
think he may do without Conſecration, as in the Inſtance of White-
hall : But tho' the Codex is unwilling to grant it, yet our Books
are
very expreſs, that the King may licence any Subject to found a Free
Chapel, and exempt the fame from the Juriſdiction of the Ordinary,
.
Codex 235.
3
Allo
Å D D E N D A.
647
18.
and Diders belonging to the ſame, as the proper diliaries witiin
Alſo the following Statutes not falling under any of the Heads ir
the foregoing Chapters, are here inſerted by way of Addenda:
An Act for the better Preſervation of Parochial Libraries, in triat i Ånnis cap.
Part of Great-Britain called England:
. I.
int
V
tain called England and Wales, the proviſion of the Clergy Libraries for
is ſo mean, That the iteceflàry Expence of Books foz the better Pro- ſupplying
ſecution of their Studies cannot be defrayed by them; and whereas the poor
Clergy with
of late Pears ſeveral charitable and well diſpoſed Perſons have by Books.
charitable Contributions eređed Libiaries within ſeveral Pariſhes
and Diffri&s in England and Wales ; But ſome proviſion is wanting
to preſerve the ſame, and ſuch others as ſhall be provided (oz eređeo)
in the ſame Yanner, from Embezilment. Be it therefore Ena@ed to be
by the Dueen's moſt excellent Majeſty, by, alid with the advice and ſerved for
Conſent of the Vods Spiritual and Tempozal, and Commons in
by the Rules
this preſent Parliament aſſembled, and by the Suthority of the appointed by
ſame, That in every Pariſh or Place where lich a Libjary is, o2 thcFounders
thall be eređed, the ſame fijall be preſerved for ſuch uſe and uſes as
the ſame is, and ſhall be given, and the Diders and Rules of the
Founder ol Founders of ſuch Libraries Mhall be obſerved and kept.
G. 2. And foz the Encouragement of ſuch Founders and Beliefac- For which e-
tois, and to the. Intent they may be ſatisfied, Chat their pious and very In-
charitable Jntent may not be fruſtrated, he it alſo enađed by tije All- c. Thali
thority aforeſaid, That every incumbent, Remol, Uicar, Diniffer give fich
02 Curate of a Pariſ), before he ſhall be perinitted to uſe and enjoy y, as the
good Securi
Cuch Libary, fall enter into ſuch Security by Bond or otherwiſe, Ordinary
foi Preſervation of ſuch Library, and due Dbſervance of the Rules thinks fit.
pre-
:
of
their reſpexive Jurisdiâions in their Diſcretion fall think fit. Sind And may
in cafe any Book od Books belonging to the laid Libiary chall be taken for Books
bring A&tions
away and detained, it thall, and may be lawful foy the ſaid Jucum embeziled .
vent, Redol, Nicar, Miniſter ol Curate, foy the Time being, or any
in the Ordi-
nary's Name
other Perſon of Perſons, to bilig an Naíon of Crover and Conver: and recover
lion in the Name of the proper Didinaries within tijeir reſpeãive Ju treble Da-
risdiâions, whereltpon treble Damages fall be given, with full
mages, en
Colts of Sulit, as if the ſame were his or theić proper Book oj
Books ; which Damages thall be applied to the Wig and Benefit of
the ſaid Libjary.
9. 3. And it is enađed by the authority aforeſaid, Chat it thail and And Ordina-
may be lawful to, and for the proper Didinary or his Commiflary, ries
, Secr may
02 Official in his refpe&ive Jurisdiâion, oz the archdeacon, ou by his braries, by
Diregion, yis Dfficial or Surrogate, if thé faid Archdeacon bé niet Commiſſion
tije Incumbent of the place where ſuch Libjary is, in his theit And redress
reſpezive Gilitation, to enquire into the State and Conditioit of the Defe&ts,
Laid Libzaries, and to amend and redreſs the brievances and Defeas
bf, and concerning the ſame, as to hint ou them ſhall ſeem meet. and
it wall and may be lawful to, and for the proper Diduiary, from
Time to Tigje as often as fhall be thought fit, to appoint ſlicij
Perſon of Perſons as he Üall think fit, to view the State alid Con:
dition of ſuch Libjarjes; and the ſaid Didinaries, Archdeacons, oj
Dficials reſpedively, ſhall have free acceſs to the faipe at fuc) ELIIRES
as they Mall reſpewively appoint,
$. + 2lio
648
A D D E N D A.
Coc. and re-
Court.
Of Librarics
in 6 Months
Erection.
Catalogues V. 4. and be it alſo further enađed by the authodity afojelaid, That
of the books where any Libyary is appropriated to the Uſe of the Miniſter of any
and ſign’d by Pariſh
, oj Place, every Redol, Uicar, Pinifter, op Curate of the
Incumbents, Caine, within lir months after his Inſtitution, Induđion ou admit:
gifter'd in fioni, Mall make, or cauſe to be made, a new Catalogue of all Books
the Biſhop's remaining in ou belonging to ſuch Libzary, and ſhall lign the ſaid Cata-
logue, thereby acknowledging the Cuſtody and Pofleflion of the ſaid
Books, which ſaid Catalogue ſo ügned, ſhall be delivered to the
proper Didinary within the Time afojelaid, to be kept oj regiſtred int
& vis Court, without any Fee of Reward for the ſame.
$. 5. and be it further enađed by the Authority aforeſaid, That
in Being, by where there are any parochial Libraries already erected, the Incum-
29. Semptem vent, Reãoz, Uicar, Miniſter ol Curate, of ſuch Pariſh or Place,
of thoſe that ſhall make, oy cauſe to be made, a Catalogue of all Books in the
hall be with- ſame, thereby acknowledging the Cuſtody and Polellion thereof.
after their
Which Catalogue ſo ſigned, ſhall be delivered te the proper Dudina-
ry oni od before the 29th Day of September, which ſhall be in the Year
of our Lodd 1709. And where any Library ſhall at any Time here-
after be given and appropriated to the Uſe of any Pariſh or Place,
where there fhall be an Incumbent, Redol, Wicar, Pinifter, o2 Cu
rate in Pollellion, ſuch jucumvent, Re&or, Uicar, Miniſter of Cli
rate, fall make, od cauſe to be made a Catalogue of all the Books,
and deliver the ſame as aforeſaid, within lir ponths after he fhall
receive ſuch Libiary.
Libraries on 9. 6. And to prevent any Embezilment of Books upon the Death
Death or Rc- 02 Removal of any Incumbent: Be it alſo enađed by the Authority
Incumbent afozefaid, That immediately after the Death oj Removal of any J11-
to be ſhut up, cumbent, Re&ol, Uicar, Miniſter ol Curate, the Libary belonging
pened till a
to ſuch Parilh or Place, fall be fouthwith ſhut up and locked, ojo-
new Incum- therwiſe ſecured by the Church warden od Churchwardens fud the
bent indu&- Time being, oj by ſuch perſon or Perſons as ſhall be authodzed 0
appointed by the proper Didinary oj Archdeacon reſpeãively; ſo that
the ſame fhall not be opened again till a nem Incumbeut, Reão), Wi-
car, Miniſter ol Curate, ſhall be induđed od admitted into the faid
Parith a Place.
9. 7. Provided always, That in caſe the place where ſuch Liviary
Veftrics oro- is, o fhall be kept, ſhall be uſed fou any publick Dccaữon for the
meeting of the Uelry, oj otherwiſe foy the diſpatch of any Buſineſs
of the ſaid Pariſh, oz foz any other publick Dccation fou which the ſaid
Place hath been ozdinarily uſed, the Place ſhall nevertheleſs be made
Uſe of as folmerly foz ſuch Purpoſes, and after ſuch Bulinels dil-
patch'd ſhall be again fožthwith Thut and lockt up, 02 otherwiſe ſe:
cuired as is before diređed.
$. 8. And be it alſo further enađed by the Authority aforeſaid, That
for the better Preſervation of the Books belonging to ſuch Libya-
given to be ries, and that the Benefađions given towards the ſame may appear,
the Minifter, a Book ſhall be kept within the ſaid Libjary for the entring and re-
giftring of all ſuch Benefaäions, and ſuch Books as thall be given
towards the ſame, and therein the minifter, Ređo, Wicar ou Curate
of the ſaid Pariflj od place, thall enter or cauſe to be fairly entreti
ſuch Benefađioni, and an account of all Cuch Books as fhall from
Time to Time be given, and by whom giveni.
4
and not o-
ed.
Except for
ther Pariſh
Buſineſs,
Benefactions
and Books
9. 9. 3.10
ADDENDA
649
found, ſuch Book or Books ſo found, ſhall immediately by Didet of
: 8. 9. And for the better governing the ſaid Libaries, and preſerving and additi-
of the ſame, it is hereby further enađed by the authority aforeſaid, and Orders
That it ſhall and may be lawful to, and for the proper Davinary, to- înay be made
gether with the Donor of ſuch Benefađion (if living) and after the by the Ordi.
nary,
Death of ſuch Donoz, for the proper Didinary alone, to make fuch
other Rules and Diders concerning the ſame over and above, and
belides, but not contrary to ſuch as the Donor of ſuch Benefačion
fhall in his Diſcretion judge fit and necellary; which ſaid Diders and
Rules ſo to be made, fhall from Time to Time be entered in the
faid Book, Od ſome other Book, to be prepared foz that purpoſe,
and kept in the ſaid Library.
9. 10. And it is further enađed and declared by the Authožity afożes No Books
faid, That none of the ſaid Books fhall in any caſe be alienable, no cates, may
any Book od Books that ſhall hereafter be given by any Benefađoz od be alienated.
Benefa&ols fall ve alienated without the Conſent of the pioper-D
dinary, and then only where there is a Duplicate of ſuch Book oz
Books: And that in caſe any Book or Books be taken, oj other
wile loſt out of the ſaid Library, it ſhall and may be lawful to, and
for any Juſtice of Peace within the County, Riding op Diviſion, to
grant his Warrant to ſearch for the ſame, and in caſe the ſame be
rant, if
ſuch Juſtice be reſtored to the ſaid Library; any Law Statute og
Uſage to the contrary in any wiſe notwithſtanding.
5. 11. Provided always, That nothing in this ax contained fhall are loft, 1
extend to a publick Library lately erexed in the Parill
) of Ryegate, in ſearch for
'em by War-
the County of Surrey, fou the Uſe of the Freeholders, Uicar and In
habitants of the ſaid Pariſh, and of the Gentlemen and Clergynien found, to be
inhabiting in Parts thereto adjacent; the ſaid Libjary being conſti-
tuted in another manner than the Libjaries provided foz by this aa..
the Library
An Act for granting to her Majeſty ſeveral Duties upon Coals for
at Rygate.
9 Anna cap.
building Fifty new Churches in and about the Cities of London and ..
Weſtminſter, and Suburbs thereof, and other Purpoſes therein mnen-
tioned.
reſtorcd.
This Act not
to cxtend to
J. 1.
Mas Gracious
OST Gracious Sovereign, We your Majeſty's moſt dutiful Preamble
.
and loyal Subjects the Commons of Great Britain in Par-
liament aſſembled, being zealous to provide ſuch Supplies as may en-
able your Majeſty to purſue your pious and gracious Intentions, to in-
creaſe the Number of Churches in or near the populous Cities of
London and Weſtminſter, or Suburbs thereof, for the better Inſtructi-
on of all Perſons inhabiting, or who ſhall inhabit in the ſeveral Pariſhes
wherein the ſame ſhall be built, in the true Chriſtian Religion as it is
now profeſſed in the Church of England, and eſtabliſhed by the Laws
of this Realm, do moſt humbly preſent to your Majeſty the ſeveral
Impoſitions, Rates and Duties herein after mentioned, and do beſeech
your Majeſty that it may be enacted.
And be it enaded by the
Mueen's 'moft ercellent Dajetty, by and with the Conſent of the
granted on
Loids Spiritual and Temporal, and Commons in this preſent Par- Coals from
liament allembled, and by the authority of the ſame, That for 14 May 1756,
all Sorts of Coals and Culm, which from and after the 14th Day to 29. Sept.
of May 1716, and before the 29th of September 1724, fall be impožted
and b?ought into the Port of the City of London, 02 the River of
Вьььь
A Duty
1714, viz.
Thames,
650
À D D E N D A.
Froni 14
Thames, within the Liberty of the ſaid City, upon the ſame River,
there ſhall he paid to her Majeſty, her Heirs and Succeſſors, by way
of Jmpoſition thereon, over and belides all other Impoütions and
Luties according to the Rates hereafter mentioned; viz. from and
after the 14th of May 1716, fo2 all ſuch fots of Coals and Cuim as
are uſually ſold by the Chalder, for every Chalder whereof containing
May 1716, to
36 Buſhels Wincheſter Beaſure the sum of 2 s. And for ſuch ſort of
29 Sept. 2$. Coals as are ſold by the Ton, fou every Con thereof containing 20
per Chalder, bundled Weight, the Sim of 2 s. And from and after the 28th of
from 28 Sept. September 1716, and before the 28th of September 1724, there fhall be
1716, to 28 paid for every lucy ſaid Chalder of Coals and Culm, and Ton of
35. per Chal. Ccais the Sum of 3 s. Which ſaid Sum of 2 s. for the fird Part of
der or Ton. the ſaid Terni, and 3 s. foz the Remainder thereof, fou every Chalder
of Coals, and Culin, and Ton of Coals, fall from Time to Time,
during the full Term firtt befoje mnentioned, be raiſed, levied, cor
leged and paid to her Majeſty, her heirs and Succeflous, in the ſame
amer, Method and form, and at ſuch Places, and hy ſuch Bules,
Ways and Deans, and under ſuch Penalties and folleitures, as are
mentioned, erpreſſed, op referred unto, in and by any ax, Law oz
Statute, gas, Laws 02 Statutes now in fforce, for railing, levya
ins, colleđing og anſwering any other Duty or Duties now payable
to her pajeſty, foz oy upon any Coals op Culin whatlover impožted,
od brought Coaft-wiſe into the ſaid Port of London. And that all
and every the Powers, Authorities, Penalties, Foffeitures, Dir
:
abilities, articles, Rules and Clauſes in the ſame a&s, Laws and
Statutes, ud any of them inentioned op contained, (ercept ſuch and
ſo inuch of them, foy and concerning which it is otherwiſe provided
in this preſent añ) Hall be of ſuch force and Effea, to all Intents
and pulpoſes, for the raiſing, levying, colleđing, and anſwering
the Jmpoſitions hereby granted, foy and during the ſaid Term and
Terms herein before limited, as if the ſame were particularly, and
at large ſet down and enađed by this aa.
2. And be it further enađed by the authority aforeſaid, That all
The Money
to be paid in- and every ſuch Sum and Sums of Doney, which mail be raiſed, col
leged and levied, by Wirtue of this Ax (the neceſſary Charges of rai
chequer, and
appropria- fing, managing and accounting for the ſame always ercepted) fhall
ted for build- from Time to Tíme be bżought and paid into the Receipt of the
ing so new
Churches,
Erchequer, anid by force and Wirtue of this aã are, and fhall be
appropriated, iſſued, applied and diſpoſed, fou the building of so new
hurches of Stone, and other proper Materials, with Towners op
Steeples to each of them, and fou purchaſing of Sites of Churches
and Church-yards, and Burying-places, in od near the ſaid Cities
of London and Weſtminſter, 02 the Suburbs thereof, and fol making
ſuch Chapels, Churches, as are already built, and capable thereof,
Pariſh Churches, and for purchaſing Houſes for the habitations of
the Qiniſters of the ſaid Churches, and foz applying the Sun of
4000l. per. Annum Out of the ſaid Duties and 3mpoütions towards
the repairing and finiſhing the Collegiate Church of St. Peter Weft.
minſter, and the Chapels of the ſame, and alſo for applying the Sum
of 6000l. per Annum, out of the ſaid Duties and Impoſitions ariſing
by this Na towards the finiſhing Greenwich Hoſpital, and the Chapel
thereuinto belonging, and to 07 fo2 none other Uſe, 3ntent or Puc-
pore whatſoever..
to the Ex-
Ego co
1
§. 3.
ADDEN DA.
651
ters Patents.
9. 3. And it is hereby declared and enaked by the Authority afoje: so Churches
Taid, 'That there ſhall be erexed and built of Stone and other pzo whereof tha
per materials, so Churches with Towers of Steeples to each of of Greenwich
them, whereof one fall be eređed in the Pariſh of Eaſt-Greenwich, in to be one.
the County of Kent.
$. 4. And whereas in ſeveral Pariſhes in oy near the cities of Lon. Chapels al-
don and Weſtminſter, 02 the Suburbs thereof, there are ſome Cha: ready, erec-
wels erexed by weil diſpoſed Perſons at their own Charge for the be converted
publick Wojſhip of God, as eſtabliſhed in the Church of England, to Churches
which are fit to be converted into Pariſh Churches, and to have Di-
ftrias od 230ltnds of Parithes allotted and alligned to each of them;
but ſeveral of them beillis built upon Terms fod Years; under cer-
tain Ground-rents, and therefore are not confecrated, and there veilig
ſeveral Deficiencies in their Conftitutions which are neceſſary in a
Pariſh Church. Be it therefore declared and enađed by the Autho-
rity afojelaid, That ſuch of the ſaid Chapels as are fit and proper,
may be made Pariſh Churches.
5. 5. And to the End that the ſaid New Churches ſu to be creâed Commiſſio-
may be conveniently ſituated, and the ſaid Chapels that are fit for named, &c.
Pariſh Churches, may be accommodated and provided with all things by the
Queen's Lot.
neceſſary fou thoſe reſiding in the ſaid Pariſhes who ſtand molt in
need thereof. Be it enađed by the authority aforeſaid, That it
fhall, and may be lawful to, and foz_yer Pajeſty, by Letters Pa-
tents under the Great Seal of Great Bricain, to nominate, conſtitute
and appoint, ſuch Perſons as her Majeſty ſhall think fit, to be Com:
miftioners foz the Purpoſes herein after mentioned, which caid Coni:
miffioniers, od ſuch, od ſo many of thein as fhail by the ſaid Com-
million be authorized, mall, within 20 Days after they ſhall be ſu The Cortia
conftituted as aforeſaid, Deet, and ſo from Time to Time as millioners
often as there fall be Dccaſion, with oy without Adjournments, and
Duty.
fhall enquire and inform themſelves in what Pariſhes the ſaid Neti
Churches, ercept that of Greenwich, are moſt neceſſary to be built; and
of proper Places foz the Scites of the ſaid reſpexive new
Churches, and alſo a Cemetery 02 Church-yard foz each of the ſaid
Churches, foy the burial of Chriftian People to ve purchaſed; and
alſo which of the ſaid Chapels are fit to be made Pariſh Churches,
and Mall aſcertain the ſeveral Houles, Lands, Tenentents and De-
reditaments, and the Bounds and Limits which in theit Judgnient
02 Dpinioni, may be fit to be made diftinæ Pariſhes, and to inquire
and inform themſelves by the beſt means they can, of the Ualue of
ſuch Houſes, Lands, Tenements and bereditaments, and of tije
reſpexive Ettates and Intereſts therein, which the ſaid Comimiſti-
oners, or ſuch, oj ſu many of them as fall be authorized as afore-
ſaid, mall think neceſſary to be purchaſed fol the ſaid Scites and Ce-
meteries, and fou Houſes for tije Habitations of the reſpexive ini-
ſters: and the ſaid Commillioners, op ſuch, od ſo many of thein as
ſhall be authorized as afozefaid, mall, on oj before the 24th of Decem-
her 1711, repolt Oj certify to Her Majeſty in Writing under their
Hands and Seals, ſuch Batters and Things as ſhall appear to their
upon their inquiries aforeſaid, with their Dpinions thereupon, and
preſent a Duplicate of ſuch Report 02 Certificate to each of the two
Houſes of Parliament, to the end ſuch further Diređions may be
giben
1
2.
652
ADDEND A.
given thereupon, as may be purſuant to her Pajetties pious Inten-
tions in the Premitles.
Quære, how far this Section of the faid Act was purſued.
9. 6. Provides that money may be lent on this aã at 61. per Cent.
Intereſt, Car-free, &c.
9. 7. That Intereſt becoming due befode the 14th of May 1716,
to be ſatisfy'd out of other monies coming into the Erchequer out
Loant, &c.
8. 8. That 100 Chalder of Coals yearly foy the Uſe of Chelſea Ho.
ſpital, ſhall not be chargeable.
S: 9. That the ſuſpended Salary of the Surveyor General of St.
Paul's Church be paid to 25 December 1711.
and that all other ftanding Salaries ſhall ceaſe from that Time.
See alſo the Stat. 10 Anne cap. 11. For enlarging the Time, and
giving further Powers to the Commiſſioners for building the 50
New Churches, and for appointing Monies for rebuilding the Pariſh
Church of St. Mary Woolnoth.
And Stat. 12 Anna Sejl. 1. cap. 17. For veſting in the ſaid Com-
miſſioners as much of the
Street, near the May-pole in the Strand, as
Thall fuffice to build one of the faid Churches thereupon, and reſtoring
to the Principal and Scholars of King's Hall, and the College of
Brazen-Noſe, in the Univerſity of Oxon, their Right of Preſentation
to the Churches and Chapels in Stepney Pariſh.
And 12 Anne Sell. 2. C. 6. For taking away. Mortuaries with-
in the Dioceſes of Bangor, Landaff, St.
Davids, and St. Aſaph, and
giving a Recompence therefore to the Biſhops of the faid reſpective
Dioceſes ; and for confirming ſeveral Letters Patents granted by her
Majeſty, for perpetually annexing a Prebend of Glouceſter, to the Maſter-
ſhip of Pemb. Coll. in Oxon; and a Prebend of Rocheſter, to the Pro-
voftſhip of Oriel Coll. in Oxon; and a Prebend of Norwich, to the Ma-
ſterſhip of Catharine-Hall in Cambridge.
:
.
::
..
THE
.
.
. .
.
Τ T HE
T A B L E
OF THE
Principal Matters
Contained in this
1
Β Ο Ο Κ.
1
W
Abatement.
Falſe Latin or Want of Form, if it ſhall
abate the Writ.
Page 285
HO may plead in Abatement. Miſnaming Plaintiff or Defendant, if it
Page 255, 256,6C. ſhall abate the Writ.
ibid.
Matter in Abatement, how Quare Impedit brought by ſeveral joint-
to be pleaded.
370 ly, who vary in making their Title, if
One of the Plaintiffs in Quare Impedit the Writ ſhall abate.
253
dies, the Writ ſhall not abate. 264) Darrein Preſentinent brought, pending
One Defendant in Quare Impedit dies, a Quare Impedit, or econtra, the
the Writ ſhall not abate, Writ of Darrein Preſentment ſhall abate.
Right contra.
265
242, 243
It appears one of the Defendants was Two Quare Impedits brought againſt
dead before the Writ brought, the the Tame Perſon for the fame A-
Writ ſhall abate.
285 voidance, the ſecond ſhall abate. 243
Writ to the Biſhop, pending a Writ of Plaintiff made a Knight, his Writ ſhall
Inquiry abates.
287
abate Honour by Deſcent. 265, 285,
It appears by the Declaration, Plaintiff Quare Impedit brought after the
and Defendant are 'Tenants in Com Church of the Plaintiff's Clerk, the
mon,
if the Writ ſhall abate. 287, Writ ſhall abate. 266, 285, 292
287, GC The Plaintiff's Clerk preſented, Go.
Patron dies pending a Quare Impedit, pending a Quare Impedit ſhall not
the Writ ſhall not abate. 254, 255,
abate the Writ.
285
265, &c. Where a Quare Impedit abating ſhall
Writ will not abate for Matter found be peremptory to the Plaintiff, or not.
by Verdict.
256
ibid. &C.
Ccc c c
Quare
The T A B L E.
Page 391
Quare Impedit not brought againſt pro-Action for taking away Winding-ſheets,
per Perſons ſhall abate.
Page 253
who may have it.
Quare Impedit againſt the Incumbent Where an Action lies for a Diſturbance
without the Patron, when the Writ to a Seat in the Church.
382
ſhall abate.
254, 255 What Action for breaking down Seats in
Where a Writ may be abated by the a Church, and for whom. 382, 384,
Court ex officio, or not.
256
387
Writ abated by Surmiſe to have a Pro- No Action upon a Promiſe againſt a Cor-
hibition.
266, 267 poration.
440
If bringing a Duplex Querela will not Action againſt the Biſhop for admitting
abate a Quare Impedit.
233 a Clerk contrary to Verdict in a Jure
Patronatus.
235
Abbies.
No Action of the Caſe againſt a Biſhop
for refuſing Admiſſion, GC.
239
Catalogue of Abbies above 2001. per Action of the Caſe for Dilapidations.399,
Annum Value.
519, 520
400
What Abbies diſſolved by Statute 27 H. Action againſt a Parſon for not keeping
8. cap. 27, &c. Vid. pag. 515, 516, a common Bull and Boar.
555
526 Aaion for taking or demanding more
for a Mortuary than is allowed by
Abegance.
Law.
569, 581, 582
What Actions Eccleſiaſtical Perfons may
Freehold or Fee-ſimple of a Church in have to recover the Inheritance. 484,
Abeyance.
170, 186, 310
485, &c.
Action upon the Statute 2 3. E.6.cap.
Acceptance.
13. for not fetting forth Tithes is Per-
fonal, grounded on the Contempt.
Where Acceptance of Rent will make
1073
a voidable Leaſe good, or not. 479, Matter prohibited by Statute, Action
480 lies for doing it, altho' no Action be
given by the fame Statute. 341, 633,
Action.
634
Adion upon the Statute 21 H. 8.
The Law allows fot of many Adions 13. againſt a Clergy-Man for taking
for the ſame Matter.
336 of Farms, &c.
361
Adion on Statute 2 O 3 Ed. 6. for not Action by the Heir for pulling down,
ſetting forth Tithes, how to be brought, &c. Monument, Graveſtone, &c. 389
by and againſt whom. 632, 633, &c. Action by the Parſon for breaking the
Action for not ſetting forth Tithes, if it Windows, &c. of the Church. 380,
may be brought tam pro Domino
389
633, 634, &c. Action againſt a Parſon for neglecting to
Action on the Caſe on a Parol Agree ſay Divine Service.
332, 333
ment for Tithes.
501, 502 Action for refuſing to admit one to the
Adion lies not for ſuing for 'Tithes con Sacrament.
316, 333
trary to a Modus.
500 Action for Money due for a Mortuary.
No Action lies for ſuing unjuſtly for
1053
Tithes in a proper Court. ibid.
Action for not taking away Tithes after
Accellary.
they are ſet forth, where it lies. 1065
Action for hindring to order Tithes after No Acceſſary in Simony.
they are ſet forth.
540, 545
Action againſt the Ordinary for placing Admillion. Vide Preſentation, Bi.
one in a Seat in an Ifle, in which an top and Intitution..
other hath Property.
มีก:
.
сар.
Rege,&c.
46
382
3
The 'T ABLE
Advowſon. Vide Appendant.
amerciament.
Plea.
90
1
428
65, 66
57, &c.
75, 87,
on.
58
The Definition and original Advowfons. How much a Biſhop ſhall be amerced in
Page 63, 64 a Quare Impedit, and upon what
Advowſon or Right of Patronage what.
Page 272, 299
65
The ſeveral sorts of Advowſons. 65,
Annuity.
66
Advowfons not accounted as Things | Annuity out of a Church united, how dif-
gainful.
charged.
186
Advowſons Affets in the Hands and Ex- | Arrears of an Annuity, how to be reco-
ecutors.
ibid. vered after Judgment in a Writ of
Advowſons how transferred from one to Annuity.
485
another, and by what Words. 132 Writ of Annuity brought againſt a Par-
190 fon, who prays in Aid of the Patron
How many Writs to recover an Advow and Ordinary, and Judgment is given
fon.
239 by Default, this shall not bind the
Advowſons, by what Names known. 90 Succeffor.
Two Advowſons of one Church.
250,
251 Appeal. Vide Delegates,
Advocatio Medietatis & Medietas Ad-
vocationis.
251, 269 Of Appeal in Eccleſiaſtical Cauſes. 56,
Advowſon appendant, what.
Advowſons in grofs, what. ibid. What Judgments may be avoided by
Advowſons held by Tenure.
Appeal.
4
89 Appeals ſuſpend Sentence of Deprivati-
Biſhop nothing to do with Patronage of
Churches.
230, 231 No Appeal from the Court of Dele-
Advowſons paſs by the Words Tene gates.
59
ments or Hereditaments.
90 Difference between Appeal and Com-
Advowſons, if extendible upon Statutes million of Review.
58, 59
Merchant, C.
96
Advowſon may be yielded in Value up Appendant. Vide advowron. .
on Warranties.
Advowfons, to what they may be ap-
Aid.
pendant.
65, 66, OC.
Advowfons appendant to a Meſſuage.
Who niay pray in Aid, of whom, and
65,67
when.
484, 485 Advowſon appendant to two Manors,
&c.
66, 67
Alien.
Two Advowſons appendant to one Ma-
nor.
ibid.
Alien, if he may be refuſed Admiſſion to Advowſons appendant to a M , is
a Benefice.
213, 214 appendant to the Demeſnes only, not
Aliens excepted out of the Statute of 14 to the Rents and Services. 66,89
146, 147 Moiety of an Advowfon appendant. ibid.
Advowfon appendant to an Acre of
amendment.
Land, Parcel of a Manor.
Advowfon in one County appendant to
Writs of Quare Impedit, &c. when a a Manor in another County. 66
mendable.
248, 249 Rectory appropriate appendant to a Ma-
67
Ma-
90
Car. 2. cap. 4.
67, 89
nor.
The T A B L E.
:
Page 414, 415
200
388, 391
189, 199
198, 245
Manor to which an Advowfon is appen- Appropriation in futuro gives no Inte-
dant Eſcheats, &c. Page 66, 75, 78, reſt till executed.
88, 199 Yearly Reſervation to the Poor, &c. tó
Corporation to which an Advowſon is be upon every Appropriation.
193
appropriated is diſſolved, to whom the Appropriations not grantable over.
Advowſon of the Church ſhall go. Impropriations when Lay Fee. 388,
199
459
Advowſon of one Church appendant to Impropriator to repair the Chancel, and
the Advowſon of another Church. 68 what Remedy to compel him to do
Advowfon appendant fevered, if it may
it.
become again appendant. 69, 70/What Eſtate they ought to have to whom
Where an Advowfon ſhall become in Appropriations are made.
groſs by Partition.
70 By what Acts a Church may be diſap-
Advowfons appendant, how made to be propriate.
197, 198, 199
in grofs.
68, 89 Appropriation in Lay Hands, called Im-
Advowſons, Part appendant, and Part propriation.
197
groſs.
66,67 Impropriations by Preſentment reſtored
Advowſon appendant, how to be plead to the Church.
459
ed.
66 Preſentation by a Stranger to a Church
Evidence that the Advowſon of a Vica appropriate is void.
rage is appendant.
68 | Appropriation by a Biſhop to an Hoſpi-
tal made void by the Succeſſor. 199
appropriation, and Jmpropriation. Vicar to be endowed in every Appropria-
tion.
193
Impropriation made to the Archbiſhop of Vicarage united to a Parſonage appro-
Wells, charged to pay Firſt Fruits and priate doth not diſappropriate the Par-
Tenths.
178 ſonage.
199
Impropriations of the Dutchy of Lanca-Appropriation to a Corporation after
fter recontinued.
ibid. diffolved, who ſhall have the Advow-
What Words moſt apt to make an Ap fon of the Church.
ibid.
propriation.
192 | Appropriation of the Church of Haden-
What Perfonis capable of an Appropria ham to the Archdeacon of Ely con-
tion.
189, &c.
firmed by Parliament.
193
The Form of an Appropriation. 192
The Effect of an Appropriation. 189.
archdeacon.
191
If Vicarage may be appropriate. 346, Archdeaconries, by whom given, and
349
how.
170
By whoſe Licence and Confent, &c. Ap-Archdeacon the Biſhop's Miniſter. 222,
propriations are to be made.. 189,
223
190, Ý C. 469 Archdeacons to be in Holy Orders.
Licence of Appropriation by the King,
170
how to be nade. 190, 191, G. Archdeacon not a meer Function.
240
Afſent of the Patron to an Appropriaci-| Archdeacons have Locum in Choro.
on, how it may be declared,
ibid.
Appropriation without Licence, what Archideacons are Dignitaries. 6,9
forfeited thereby.
42, 191 Archdeaconry, if Benefice with Cure. 9,
Corporation miſnamed in Licence of
1 32 170
Appropriation.
192, 193 Archdeacon, if bound to read the Ar-
Appropriation of a Church full. 185, ticles, ſubſcribe the Declaration, &c.
191
179
Appropriation by the King, where good.
189, 190, 191
ara
190
3
The TABLE
Aflize lies only to recover a Frechold.
arretts.
Page ibid.
341, &c.
Arreſts, and ſerving Procefs on the Lord's
attachment.
Day prohibited. Page 340, 342
Arreſts not to be made in Churches, or Attachment for offending againſt a Rule
Places dedicated.
340, 341
of Court, but not againſt private A-
Miniſters performing Divine Service not greements.
43
to be arreſted, unleſs where the King
is Party.
attainder.
Perſons not to be arreſted eundo vel rede-
undo from or to Divine Service. 340 Nobility loſt by Attainder for Treaſon
Arreſts good on Sundays if the Party ab or Felony.
24
ſconds.
341 One attainted feiſed of an Advowſon for
another's Life, all Avoidances which
articles.
fhall happen during the Eſtate are
forfeited.
105
The Thirty-nine Articles. 158, 159, Attainted of Manſlaughter, &c. Cauſe
&c.
of Refuſal.
2 14
Thirty-nine Articles, how to be read and
aſſented to, within what Time, and Auginentation of Pooj Uicarages:
by whom.
158, 170
Vide Wicarage.
Subſcription to the Thirty-nine Articles,
how to be made, when, before and
avoidances.
by whom. Il, 143, 152, 207, 50,
51 Avoidance of Eccleſiaſtical Bencfices,
Thirty-nine Articles not ſubſcribed
makes Admiſſion, Inſtitution, &c. Avoidance by Death, Lapfe, &c. ibid.
void.
11, 50, 152 Avoidance by Ceſſion, Reſignation, Gc.
Subſcribing the Thirty-nine Articles, how chap. 4. Deprivation, &c. 5, 6, 7, 8,
to be underſtood.
152
Avoidance by Ceſſion how tried.
allent. Vide Articles. Avoidance by Act of Law for Incapaci-
ty: cha. 5.
Afſent to the Book of Common Prayer, See alfo. Tit. void, and voidable.
and the Thirty-nine Articles, how to
be declared.
50, 51, 157, 158
Affent to an Appropriation, how it may
be declared.
190
Bailiff.
Alleťments. Vide Incumbents.
HAT Acts done by Bailiff ſhall
Affets. Vide Erecutors.
bind the Maſter. 479, 480, c.
4, 5, Oc.
9, 10
6
W
Alignee.
Baptiſm.
318
Where an Aſſignee ſhall have Advantage The Miniſter's Duty in baptiſing. 317,
of a Covenant to celebrate Divine
Service.
332, 333 Midwives uſed to Baptize.
318
When an Infant, &c. ſhall be ſaid to be
allize. Vide Parrein Preſentment. ſufficiently baptized.
ibid.
Neceſſity of Baptiſm too rigouroully
No Allize for Rent on Leaſe for Years. taught.
ibid.
481 Ddddd
Bas
The T A B L E.
and he their Patron. Page 418
Battard.
No Man to be accounted a lawful Bi-
ſhop, Prieſt or Deacon, ſuffered to ex-
Baſtard not to be ordained without Dif ecute any of the ſaid Functions, ex-
penfation, and by whom ſuch Diſpen- cept called, examined and admitted,
ſation is to be granted. Page 145, 214
according to the Form preſcribed in
the Book of Common Prayer. 142,
Benefice.
OC.
Biſhops nothing to do with the Patro
The original Import of the Word. 1, 2 nage
of Churches.
272, 273
The ſeveral kinds of Eccleſiaſtical Bene- Temporalities of Biſhops, when to be
fices.
2, 3, 4
ſeiſed, or not. 240, 303, 412, 413
The ancient Manner of conferring them. Of Biſhops exauctorated or deprived of
4 their Biſhopricks.
62, 63
Benefice with Cure of Souls, what, and The King hath the Profits of Biſhop's
how to be obtained.
9, 10, I3, ớc.
Lands in Time of Vacation of Bi-
What Benefices with Cure are intended ſhopricks.
411
by the Statute of 13. Eliz. cap. 12. to The King not to commit Waſte in Bi-
read and ſubſcribe the 'Thirty-nine Ar ſhops Land in the Time of Vacation.
ticles.
9, 10, 13, 170, 361, &.
ibid.
Benefices without Cure incompatible, by What Profits the King ſhall have by Bi-
what Law.
6,9
ſhops Temporalities being in his
Biſhoprick, a Benefice with Cure.
9,
Hands.
411, 412
10, 13, 41, 361 What Things are accounted the Biſhops
Prebendary no Benefice with Cure, 6, 9, Temporalities, and what Spirituali-
13, 170
ties.
181
Archdeaconry, if Benefice with Cure. 6, Biſhops when inſtituted to their Tempo-
9, 13, 360 ralities.
413
Deanery, if Benefice with Cure, 6, 9, Biſhops not till Confecration.
360 Bishops uſed irregularly to take Profits
What is required to make a Perſon capa-
of Churches in Time of Vacation.
ble of a Bencfice. 21, 22, &C. 141,
401
211 Biſhops not to receive the Fruits of the
At what Age a Perſon is capable of a Church.
273, 401
Benefice.
142 What Time allowed Biſhops to examine
What Benefices and Dignities are incom Clerks.
151, 212, 227
patible
5, 6, 7, &c. Biſhop may refuſe the true Patron's
The Ways by which a legal Title to a Clerk, the Church being full of a
Benefice is had.
4, 5, 1:49, 150
Diſturber.
216, 224
Value of Livings in London. 490, 491 Biſhop acts as a Judge in Admiſſion of
Value of Benefices, how to be account Clerks.
211, 228, 235
ed.
6, 7 Biſhop to ſew the particular Cauſe of
Bencfices of 30 l. yearly Value, who ca Refuſal of a Clerk preſented. 91, 117,
pable of them.
33
&C. 212
Benefices of Perſons not taking the Oaths, Biſhop, if to refufc a Clerk for not thew:
and Recuſants, veſted in the Univer ing his Orders.
fities.
98, 99, 102, &c. Biſhops not bound by Teſtimonial of a
Clerk's Ability, but may examine
Bithop. See Didinary and Infitu: him, c.
tion.
Biſhop's Power to increaſe the Vicar's
Maintenance.
200, 392
Biſhopricks are Benefices with Cure, 9, Biſhop's Authority in puniſhing Offenders
10, 13, 41, 361 againſt the Statutes of Uniformity fa-
Biſhopricks all founded by the King, ved.
325, 332, 333
28
2 II
212
3
Arch-
The TABLE
.
41
Archbiſhop of Canterbury's Letter con- | Bond to a Corporation and their Succef-
cerning the Prayer uſed by the Cler-
fors.
Page 372, 373
gy before their Sermons. Page 321 Bond that the Grantee of the next Avoid-
Archbiſhop's Recommendation of the ance ſhall preſent, c. how forfeited.
Reading of the Act againſt prophane
93, 94
Swearing, &c.
352 Bonds, &c. relating to Simony.
Uſurpation upon a Biſhop, the Effect of
it.
I 28
What Eſtates Biſhops may grant, and by
what Laws reſtrained. 85; 417, 418
Biſhop's Lands to be leaſed to the Dean
and Chapter in the Time of Vacation.
Canons.
411
What Offices Biſhops may grant. 444 CAnons of the Council of Lateran:
450
Biſhop cannot grant the next Avoidance Canon of the Church, a general Sen-
to bind his Succeſſor, though confirm tence: 4, 15, 16, 6Ci 121, 122, 404;
ed.
84, 85, 444
405; 532
What Aês void by Biſhop's Death, and Canon Law, one and the fame through-
not by his Tranſlation, or Reſigna out the whole Church.
15, 16, 20
tion.
469 Canons about Diſpenſations; &c. 17, 18
Biſhop hath the Cure of all Souls with Canons, &c. for Ordination of Miniſters.
in his Dioceſe.
41
251, 252
Biſhops not to ſuffer Clerks to live a Canons which provide for the regular
LayConverfation.
41
Adminiſtration of the Lord's Supper.
Fine, and Non-claim ſuffered by a Bi-
315
ſhop, binds not his Succeſſor. 128 Which preſcribe the Duty and Qualifica-
Recovery againſt Biſhop without Title, tion of Curates.
312, 313
binds not his Succeſſor. ibid. For the Celebration of Sundays and Holy-
Biſhops to anſwer for the Acts and Of days, and the Form of Divine Service
fences of their Commiſſaries.
445
to be uſed in them:
314
Biſhops Power to unite Churches. 181, Which preſcribes the Form of Prayer to
&c. be uſed by Preachers before their Ser-
Biſhop holding Benefice in Commendam mons.
321
is Parfon as to that Benefice, and muſt Which regulate the Exerciſe of Preach-
be ſued as ſuch.
202, 257 ing.
339
A Church in the Dioceſe of B. united Which reſtrain all Irreverence and Mo-
to a Prebend in the Dioceſe of D. the leftation within the Church.
Juriſdiction of the Biſhop of B. is Impugners of the Form of Conſecrating
thereby taken away. 186, 469 and Ordaining Biſhops, Prieſts, oci in
Archbiſhop of Canterbury to preſent to the Church of England cenſured. 142
the beſt Living of every new Biſhop, Four folemn Times for the making of
&c.
Miniſters.
ibid.
Levari Faç, to the Archbiſhop to levy None to be made Deacon and Miniſter
Damages recovered in a Quare Impe in one Day.
ibid.
dit upon the Ordinary, and Incumbent. The Quality of ſuch as are to be made
306 Miniſters.
143
Examination of ſuch as are to be made
Bonds.
Miniſters.
ibid.
Subſcription by ſuch as are to be made
Bonds of Reſignation.
39, 40, 41, 460 Miniſters.
ibid.
General Bonds averred to be given to a Revolters after Subſcription cenſured.
particular Purpoſe.
ibid.
Canon
348
81, 82
40, 41, 268
The T AB L E.
Canon which appoints the Oath againſt Reſignation-Bonds, how allowed of in
Simony.
Page 154
Chancery.
Page ibid.
Decree that a Vicar ſhould enjoy ac-
Caveat.
cording to a long Poffeffion, though
no Indowment could be produced.
The Uſe of a Caveat.
228, 229
392
Caveat, how long it continues in Force. Injunction to ſtop a Suit, brought by the
229, 230
Parſon againſt the Vicar, for Tithes
Caveat entred before the Church void.
contrary to an antient Compoſition.
ibid.
394
Decrce that a Vicar ſhall enjoy Tithes
Certificate.
according to an ancient Compoſition,
notwithſtanding Preſcription alledged
Certificate for Non-payment of Tenths,
to the contrary.
395
how to be made, and if Peremptory, Chancery relieves againſt a declaratory
or may be traverſed.
51 Statute, the Law before being dubious.
The King certifies the Judges that he
420
was deceived in his Preſentation. 223, Tithes ſued for in the Exchequer, Chan-
224
507, 593, 5942 595
cery, &c.
.
Cellion.
Lord Chancellor, &c.
Voidances by Seſſion. Vide Chap. 2. His Right of Preſenting to Benefices.
80. 81, 8c. 222
Chancery.
Chapel. Vide Church.
Bonds, óc. for enjoying Leaſes contrary
to the Statute of 13 Eliz, made void Chaplain. Vide Diſpenſation and
in Chancery.
424
Plurality.
Advowſon affign’d in Chancery to one
Coparcener.
73 Chapter. Vide Dean and Chapter.
A Bill in Chancery to diſcover who is
Patron of a Church.
256 A Chapter without a Dean
372
Leafe for 40 Years made good againſt
the Maſter of an Hoſpital.
441
Charges. Vide Incumbent.
Agreement to incloſe, made good againſt
à Parfon who had Common there.
Chattels.
426
A Decree that a Parſon ſhould have Grant of the next Avoidance is a Chat-
Meadow,&c. in lieu of Tithes. ibid. tel, and goes to the Executor. 91,
Leafes void in Law by miſnaming a Cor-
245
poration, made good.
476 Chattels cannot go in Succeſſion. 272,
Corporation decreed to make a new
273
Leaſe according to their Promiſe. 440 Right of Preſentation is a Chattel. 76,
Injunction to continue Poſſeſſion upon a
92, 245
voidable Leaſe.
434
Preſentation to Churches of Perſons out-
One Joint-tenant, &c. compelled to join lawed is as Chattels in the King, and
in Plea with his Companion where he by what Words to be granted. 104,
would plead covenouſly.
253
105
One compelled to reſign according to a Tithes ſet out are a Chattel veſted
Bond of Reſignation.
39
in the Owner.
505, 506, 540
Ill Uſe of Reſignation-Bonds reſtrained
in Chancery.
40, 41
Churches
The TABLE.
405, Oc.
340, &c.
&c. 391
369
Impropriator and his Farmer, to have
Churches and Chapels. Vide In the Chief Seat in the Chancel. 388
cumbents.
Of Seats in Chancels. See the Addenda.
Preſcription for a Seat in the Chancel.
Of Erecting and Conſecrating Churches,
383
Go. See the Addenda.
One who receives the Profits of the
Churches by whom to be repaired. 186, Church without Title, to what Char-
GC. 187, &c. 388, 291. See alſo the ges he is liable.
Addenda.
Arreſt not to be made in Churches, or
Tax for repairing of the Church, how Places dedicated.
to be made, and by whom. 389 To what Churches and Church-yards the
Chancel, by whom to be repaired. 387, Statute of 5 b6 Ed. 6. cap. 4. con-
cerning Quarrelling, Gc. in Churches,
Chancel built for the Uſe of the Pariſhi Go. doth extend.
346
oners.
387 What ſhall not be faid drawing of a
Freehold of the Church and Church Weapon in a Church-yard within the
yard, in whom. Vide Chap. 39, and S:atute of 5 & 6 E. 6.
149
Page
391 To draw a Weapon in the Church-yard,
Church-yards, by whom to be fenced. &c. in his own Defence, puniſhable.
388
ibid.
An Iſle may belong to a private Perſon, Ordinary may inhibit from making Di-
yet the Freehold in the Incumbent. ſturbance in the Church.
346, 384
381 Things neceſſary for the King, and Com-
In whom is the Intereſt of the Church in monwealth, ought not to be ſaid pre-
the Tine of Vacation.
403 judicial to the Church.
Property of the Goods of the Church, When a Church ſhall be faid Plena do
in whom, and how to be ſued for. Conſulta.
278, 279
390 When a Church ſhall be faid litigious.
Superſtitious Pictures in Churches, who
III, 112, 226, 227
may deface them.
389 Valuation of a Church to make a Plu-
What Ornaments of the Church are to rality, how to be accounted.
be uſed.
321 Diſturbances in the Church, and Church-
Property to Seats in the Church, how yard, reſtrained.
340, OC.
gained.
383, 384, 385, 386 What Things may be read, or publiſhed
What Actions for Seats broken down, and in Churches.
340, 370
for whom.
382, 384, 386 Chapel preſentable.
170, 171
Seats in Churches, common to all the Chapel by Preſentation becomes achurch.
Pariſhoners.
382
251, 252
Seats in Churches intended to be built Chapel to be intended Temporal, and not
at the Charge of the Pariſhioners. to belong to the Ordinary's Juriſdi-
385 ction.
ibid.
Who may order the Seats in Churches, Parfon bound to find a Chaplain in a.
and Chancel. 382, 387, 388. Sec Chapel of Eaſe within his Pariſh, may
the Addenda.
ſerve it hinifelf.
334
Tenants in Common of a Seat in a One bound to ſay Divine Service in á
Church.
387 Chapel ruinated, is excufed till re-
Licence to bury within the Church, by paired.
334
whom to be given. 381, 389, 390 Of Free Chapels, c. See the Addenda.
Trees in Church-yards, by whom to be
cut, and when.
381, 391
Church wardens.
Property of Winding-Sheets, in whom,
and who may have the Action for ta- Church-wardens not Spiritual Perſons,
king them away.
391
tho' their Office be Eccleſiaſtical. 507
Eeeee
Church-
6
The T A B L E.
1
201
202
390, &c.
347, &c.
201
201
Church-wardens may be removed at a- Difference between a Commendam and a
ny Time by the Pariſhioners. 390 Preſentation.
79, 92,93
Preſcription for a Pariſh to chooſe Inſtitution not needful upon Coinmenz-
Church-wardens, to continuue two dams.
200, 201
Years in their Office.
ibid. Commendam Semeſtris, what, where to
What Remedy for Pariſhioners againſt be granted, and by whom.
200, 201
their Church-wardens.
ibid. Commendam Semneſtris gives no Title. ib.
Church-wardens cannot diſpoſe of the Commendam as a Sequeſtration. 200
Goods of the Church.
ibid. Commendam cannot be to Part of a
Church-wardens may have an Action Church.
for taking away Seats in the Church. Commendams are Diſpenſations.
382, 387 No Commendam to a Church full. 201
Church-wardens, if they may pull down If a Biſhop may hold a Benefice by
and break the Boards of Seats in the Cominendam within his own Dioceſe.
Church ſet up without Licence. 381
201, 202
Action by Church-wardens, how to be If Church lapſed may be granted in
brought.
Commendam.
201, 203
Church-wardens may hinder Diſorder, Commendam for Life, by whom to be
&c. in the Church.
granted.
Church-wardens may take off the Hats He that holds a Church by Commendan
from Perſons Heads who irreverently is Incumbent, and may plead as ſuch.
keep them on in Time of Divine Ser-
29
vice.
ibid. Commendan to the Patron, by what
Church-wardens not to ſuffer idle Per Words to be granted.
fons to be in the Church-yard, &c. Patron's Confent, when neceſſary to
in Time of Divine Service.
349 Comiendam, and how ſuch Confent
Church-wardens to preſent Names of may be given.
ibid.
Perſons behaving themſelves irreve- Dean by Commendam, his Authority. 465
rently in 'Time of Divine Service. Commendam to a Biſhop before and after
ibid. Conſecration, the Difference. 92, 93
Church-wardens if they may prohibit Biſhop hath a Commendam retinere of his
Strangers from Preaching. 335 former Benefice, if the Church ſhall
Bread and Wine for the Sacrament, at be ſaid to have been void.
79
whoſe Charge to be provided.
316
Common prayer.
Coadjutors.
How the Common Prayer is appointed
Coadjutors to Incumbents.
370, 371
to be read. Vide chap. 31. pa. 310.
Afſent to the Book of Common Prayer,
Commendam.
how to be declared.
50, 157
At what time Incumbents reſident (keep-
Sce chap. 9. pa. 79. ch. 18. pag. 200, 201, Curates are bound to read the
&c.
Common Prayer.
314
What Commendams are allowable by Whether other Prayers being no Part of
Law.
the Book of Conimon Prayer, may be
What Commendants give a full Title. uſed.
311, 320
ibid. Common Prayers reviewed, &c. in the
Commendams recipere, who may have Reign of King James I.
321
it, &c.
ibid. 205, 206 Laws againſt the Abuſe or Neglect of the
Commendair retinere, quid, c. 29, 79, ancient Service, in Force for the Uſo
204, 205
of Common Prayer.
313, 321, 322,
Commendan retinere is as a Preſentation.
333, 334
29, 205, 206. What Statutes in Force for puniſhing Of-
fenders
ibid. 205
i
The T A B L É.
i
468, 470
78, 79,
to.
321
fenders againſt Uniformity of Prayer, Life of the Party, whoſe Grant, c.
&c.
Page 322 is confirmed.
Page 462, 473
How Offenders againſt the Statute of U-Confirmation by Tenant in Tail, for Life
miformity may be punifhed. 3:20;3:22, or on Condition.
470
3250 326 Void Leaſe cannot be made good. 443,
Every Miniſter bound to read Prayers on
446
Holydays.
311, 312 Confirmation, made before the Eftate of
Prayers for the sth of Noo.c. if any
Deed which is confirmed. 462, 463,
Part of the Book of Common Prayer.
473
ibid. Confirmation of Patron, where neceila-
Neglect of reading Prayers on the 5th of
ry.
468, 469
Nov. &c. how to be puniſhed. ibid. Leaſes and Grants of Donatives;by whom
Parfon bound by Preſcription, or Cove to be confirmed.
nant, to read Prayers in a Chapel, Where the King's Confirmation to an
what Remedy to compel him there Incumbent is good; or not.
333
117, 118, 127, 223; 224
Book of Common Prayer to be tranſla- Clerk in a void Preſentation; if capable
ted into and read in the Welb Tongue of Confirmation.
7, 78, 79
within Wales.
320 Confirmation or Releaſe by a Coinmon
Canons concerning Prayers, &c. to be Perſon to an Incumbent in by wrong-
read on Sundays and Holydays. 313 ful Title, when good.
245
314 Confirmations which ſhall: endure no
Canon which directs the Form of Pray longer than the Eſtate of the Party
ers before the Sermon.
confirming.
470
Archbiſhop of Canterbury's Advice con- Confirmation by the ſucceeding Biſhop,
cerning Prayer before Scrnions.
321 or Patron if good.
474
Decency and Order in Time of Divine Confirmation by the Biſhop without the
Service directed by Canon. 348 Dean and Chapter, where good. 469
Biſhop, Dean and Chapter, may confirm
Confirmation:
feverally.
Guardian of Spiritualities cannot confirm
What ſhall amount to a Confirmation. any. Leaſe or Grant:
469
471, c. Two concurrerit Leaſes, and the latter
Confirmations, how to be made, and by firſt confirmed.
474
whom.
464, 465
What Grants or Leaſes need Confirmati- Conſolidation of Benedices. Vide
414, 415, c. 458, 461
Wniort.
Where. Confirmation for an Hour is good
for the whole Eſtate.
473 Conſultation. Vide Prohibition.
Where Confirmation of the Land, and
of the Eſtate or Deed, the Difference.
Continuances.
462, 463, 472
Where Confirmation may be part of the No Continuance after Judgment with a
Eſtate only, or not:
Cellet: Executio.
272, 273
What Leafos or Grants may be made
good by Confirmation, for what Time,
Coprhold.
and againſt whom. 462, 463, c.
Confirmation after the Eſtate determin- Copyholder is in by Cuſtom, not by the
ed, is void.
473 Law:
463
No Intereſt paſſeth by. Confirmation of Eſtates granted by Copy are Eſtates at
Dean and Chapter, and Ordinary, c. Walls
44:16
436, 467, 468, 471, 472, 474 Copyholds are of the Demeſnes of a
Confirmation muſt be paid during the Manor,
4
002
472
on.
472
45.1
The TABLE.
Page 373
Corporations cannot be feiſed to an Ufe,
Cogpozation.
and how they ſhall be ſeiſed, no Ufé
being expreſſed.
What Things neceſſary to the Founda- Bond to a Corporation, and their suc-
tion of a Corporation. Page 194, 474, ceſſors, how it ſhall go. 372, 373
Page 475 What Corporations may have Chattels
Corporations Sole, Aggregate, Regular
in their politick Capacity. ibid.
and Secular.
371 Corporations mifnamed, when it ſhall a-
Corporations of two forts.
462
void their Grants, &c. 474, 475
One Corporation both Aggregate and Mifnaming of Corporations in pleading,
Sole.
193
how helped.
475, 476
Collegium, what comprehended thereby.
See 'Title Name.
65 Corporation diſſolved or changed, Penſi-
Members of Corporations, in doing ons, &c. due from them are not de-
Corporation Acts, ought to be Capi-l termined.
575
tulariter Congregati.
467 What Corporations might grant or leaſe
Aſſent of the Members of Corporations, at Conimon Law, without Confir-
how to be given.
ibid. mation.
415, 416, 462, 463
Majority of the Members of a Corpora- Where a Corporation fhall take a Fee
tion binds the reſt.
465, 467
without the Word Succeßors. 373
All the Members of a Corporation are
but as one Body
467 Cots. Vide Damages.
One Part of a Corporation cannot Con-
fent to the Acts of the other, but muſt
Covenant.
all join in doing the Act. ibid.
What Acts Corporations aggregate muſt Parſon leafcth for 21 Years and dies, the
do by Attorney.
371, 481, 482
Leaſe is determined, Action of Cove-
What Acts they cannot do without Deed. nant lies againſt his Executors for not
481, 482 Enjoyment of the Term.
458
Corporations aggregate, what Eſtates Covenant, which ſhall go along with the
they may make.
415, 462, &c.
Land.
332
What Offences Corporations aggregate Parſon bound by Covenant to read Pray-
cannot be ſaid guilty of.
371 ers in a Chapel, what Remedy to
What Corporations may be ſaid to have compel him thereto.
333
Succeſſors, &c.
ibid.
Every beneficed Clergy-Man is a Cor-Courts and Jurisdiction. Vide Des
poration, or a Part thereof. 371, 372 legates and Trial.
Vicar, a Corporation by the Common
Law.
194 Courts of Record, what Courts thereby
Biſhop, Dean and Chapter, one Body. intended.
45
468 Matters of Law ariſing upon Eſtates and
The Head of a Corporation aggregate, Intereſt, to be adjudged by the Com-
cannot by his fole Act deveſt
any
mons Law Courts.
381, C. 389
Right, or do any Act to bind the Cor- All Deeds and Acquittances to be tried
poration.
86, 467, 480, 484 at Common Law.
Corporations, whát Lånds they may Temporal Courts to give Credit to the
have, and how they may purchaſe. Proceedings in the Courts Spiritual.
372, 373, &c.
175
Corporation without Lands or Poffeffi- Tithes, when they may be ſued for in
372
the Exchequer.
593, 594
Corporation cannot be ſaid feiſed in Eccleſiaſtical Juriſdiction faved by the
Tail.
373
Statute of 31 Eliz. cap. 6.
What Corporations ſhall be ſaid ſeiſed in Juriſdiction Eccleſiaſtical,' by whom to
Fee, or not. 462, 473, 479, 484, be executed.
4
485
279, 381, C.
ons.
45, 46
445, 455
What
The T A B L E.
46
591, 619, ớc.
What Crimes not examinable in the
Spiritual Court.
Page 53
Curatc.
Spiritual Court to cxaniine a Crime af-
ter Verdict at Law.
ibid. Curates, how to be qualificd, and ada
Spiritual Courts not to proceed for a mitted. Page 207, 208, 409, 459
Temporal Crime, till Conviction at What beneficed Men ought to keep Cu-
Common Law,
ibid. rates.
312, 313
If the Spiritual Court may deveſt a Free-Curates bound to read the Prayers, as
hold.
Miniſters bencficed.
ibid.
Spiritual Court may award Cofts, not One cannot have a Benefice, and offici-
Damages.
307, 347, 381
ate as Curate.
311, 312
What Damages to be recovered in the Executors of Curates, not chargeable for
Spiritual Court in Suits for Tithes.
Dilapidations.
400
593, 594, 603, 60.608 Leafes by Parſons to their Curates. 458
No Suit in the Spiritual Court after In- Curates, who ſerve the Church in Time
duction.
7, 8, 582, 583,619 of Vacation, how to be paid. 402,
What Cuſtoms triable in the Spiritual
409, 410
Court. 581, 582, &c.590,&C. What Curates a new Incumbent ſhall be
Patron, no Remedy in the Spiritual compelled to pay
409, 410
Court for any Diſturbance. 232 Incumbent, if puniſhable for Neglect of
In Suit for Tithes between Eccleſiaſtical his Curate.
312, 532
Perſons, the Spiritual Court only to
have Juriſdiction, how far to be ex Cutom. Vide preſcription.
tended.
Spiritual Court hath the proper Jurif-|Cuſtom, what.
507
diction of Tithes. 594, &c.604, 605 Cuſtom de Non Decimando, where
Perfon inhabiting in one Dioceſe, ſub good. (Vide Tithes.)
503, 526,
ſtracts his Tithes in another Dioceſe,
in the Court of which Ordinary to Cuſtom and Preſcription, how they dif-
be ſued.
611 fer.
502
Matters concerning Endowment of Vi- Original of the Cuſtom de non Deciman-
carages between Parſon and Vicar, to do.
527
be tried in the Spiritual Court. 195,
196
Lay-Perſons, no Remedy for Tithes in
the Spiritual Courts, till aided by the
Statute.
578, 611
Damages and Cotts.
Modus Decimandi allowed in the Spi-
ritual Courts.
630, G.
HO ſhall recover Damages in a
Modus Decimandi, if to be ſued for in Quare Impedit. 261, 262, 292,
the Spiritual Courts. 610, 611, 612
&c
Suit in the Spiritual Court for hindring a What Damages in a Quare Impedit, and
Way to carry 'Tithes.
589 how to be recovered. 261, 262, 292,&c.
Suit in the Spiritual Court for cutting Where Damages ſhall be recovered in
down Trees in the Church-yard. 381. Quare Impedit againſt the Biſhop: 294
Suit in Spiritual Court for taking away Daniages recovered in Quare Impedit, if
the Goods of the Church, in what to be levied, upon one or all the Di-
Caſe it may be.
390 ſturbers.
How the Spiritual Court uſed to proceed Where in Quare Impedit the Plaintiff
to Purgation, after Clergy allowed. ſhall recover Damages for two Years,
54
though the ſix Months be not lapſed,
Where Spiritual Court hath Juriſdiction
292, 293
of the Principal, ſhall have it of the Levar. fac. to the Archbiſhop, to levy
Acceſſary
Damages recovered in a Quare Impe-
Fffff
dit
551, G.
WH
294
617,620
1
The T A B L E.
Page 271
33
what Age.
dit upon the Biſhop and Incumbent. How many of the Jurors ought to have
Page 306 the View in an Aflife of Darrein Pre-
If the Plaintiff recovering in a Quare Sentment.
Impedit may have both a Writ to the
Biſhop, and Damages.
293
Deacon.
In an Action upon the Statute 2 E. 6.
for not ſetting forth of Tithes, what| The Office of a Deacon.
146
Damages and Coſts ſhall be recover- What Offices, C. he is capable of.
ed in the Temporal Courts, and how
53, 141, 207
thoſe Damages are to be aſſeſſed. 595 Who capable of being Deacon, and at
596
141
In Action upon Stat, 2 E. 6. for not ſet- If two be allowed to adminiſter the sa-
ting forth Tithes, what Damages ſhall craments.
146
be recovered in the Spiritual Courts. Forfeiture of a Deacon adminiſtring the
595
Sacraments.
ibid,
Damages awarded in a Writ of Error Deacon's Admiſſion, &c. to a Benefice, if
upon a Judgment in Quare Impedit. void, or voidable.
52, 141
305, 306 None to be accounted Deacon, &c. or to
Damages recovered againſt a Parfon for execute the Office of a Deacon, unleſs
not ſaying Divine Service to which he admitted, &c. accordingly as preſcribed
is bound.
333
in the Book of Common Prayer. 141,
Spiritual Courts may award Coſts, not
142
Damages. 307, 347 38i, 390
Coſts in Quare Impedit, if to be affef Dean and Chapter.
ſed by the Jury
283
Coſts and Damages for not proving a Deaneries Preſentable, Elective and Do-
Suggeſtion, when to be given, and native.
77, 170, 171
how.
599, 603, 604, &c. Lay-Man not capable of a Deanery.
141
Darrein Preſentment. Dean hath no negative Voice in the
Chapter.
466
Affife of Darrein Preſentment, where Dean by Commendam, what Acts he
it lies, and by whom. 233, 239, 240,
465
242, 481 Dean if to read the 39 Articles, "Com-
Allife of Darrein Preſentment, how to mon Prayer, &C.
9, 174
be arraigncd.
271 Dean accepting a Prebend in the fame
How the Defendant ought to plead in an Church, makes the Deanery void. 9
Aflife of Darrein Preſentment. ibid. Patronage of Deaneries, to whom they
Where it ſhall be taken by Default. belong de jure.
ibid. Poffefſions of the Deans, &c. derived
Proceſs in an Affife of Darrein Preſent-
from the Biſhoprick.
77, 372, 468
ment, how returnable.
ibid. Biſhop, Dean and Chapter, one Body.
What ſhall be recovered by a Judgment
in Aflife of Darrein Preſentment. Others conſenting, muſt be preſent with
254, 271, 289
the Dean.
467, 468
Darrein Preſentinent brought pending Deanery, if Benefice with Cure.
a Quare Impedit.
242 Deputy Dean his Authority, and who
Darrein Preſentment, and Quare Impe capable of being fo. 464, 465
dit, did not lie at Common Law after Deanery of Wells diſſolved, and a new
the Church filled.
131 One erected.
Patent of the King, where the Patent Dean and Chapter without Poſſeſſions,
is void, gains ſuch Right by Preſenta-
372
tion, &c. as "hat he may bring a Dar- Chapter without a Dean. ibid.
rein Prejeniment
Chapter
may do.
77, 468
3
468
9
468
I 27
The TABLE
271
267, 268
Chapter cannot purchaſe, &c. without Corporations, what Acts they may do
their Dean.
Page 372
without Deedo Page 440, 483
The Deanery of Battel, its original. A Biſhop, Gc. may command one to
156
demand Rent, or diſtrain without
Deed.
481, 482
Declarations. Vide Pleadings. Preſentation to a Benefice in Writing,
no Deed.
150
Declaration that the Plaintiff is feiſed Preſentation to a Benefice may be with-
de Medietate Ecclcfia without ſhew out Writing, Grant of next Avoidance
ing ſpecially how, if good. 269
not good without Deed. 89, 159,
Preſentations if neceſſary, and how to be
151
alledged in Declarations in Quare Im- Tithes, if grantable, &c. without Deed.
pedit.
266, 267, 268, 269
439, 636
Declarations, when double. 268 Advowſons in groſs, not to be granted
Declarations in Quare Impedit, where without Deed.
89
the Right of Preſenting is by Turns. Pleading Advowfon granted by Deed,
269 mentioning the Deed, is Surpluſage.
When in a Quare Impedit one ought to
ibid.
declare of the whole Advowfon, and
Default.
when of a Moiety, third Part, GC.
ibid. Default after Iſſue joined.
The Plaintiff in his Declaration muſt One Defendant appears; the other makes
ſhew his Eſtate, &c.
Default:
ibid.
Declarations in a Prohibition upon a
Delegatés.
Diſcharge of Tithes.
That the Incumbent, &c. fubfcribed the Their Power and Authority, &c. 56,
39
Articles not needful to be ſhewn
57, 58.
in a Declaration.
Demand.
Declarations in Quare Impedit where the
Plaintiff's Eftate in an Advowſon is Leafe to be void on Non-payment of
gained by Wrong
268, 281
Rent, the Rent muſt be demanded:
The King in Quare Impedit declares of
482, 483
Damage, but recovers none. 294, Demand of Rent, how to be made ibid.
295 Penſion, if to be demanded before ſued
Declarations in Quare Impedit, where for in the Ecclefiaftical Court. 585
the Ordinary refuſeth one Clerk as
inſufficient, and denied to admit a
Dépzivation.
fecond.
269
Declarations on Statute 2 3 E. 6. Deprivation ipfo fa&to, for what Crimes.
for not ſetting forth of Tithes, how to
49, 50, 54, C.
be framed.
632, c. Clerk inſtituted, but not inducted, may
If the Declaration in Quare Impedit,&c. be deprived.
406, 407
be not good, although the Bar be|Deprivation, where neceſſary to make
nought, the Plaintiff ſhall not reco void the firſt Living on Acceptance of
266 a ſecond.
6,8
How to proceed to Deprivation for ac-
Deeds.
cepting a ſecond Benefice.
What are Cauſes of Deprivation. 6, GC.
Decd what, and the ſeveral Sorts of
46, OC. 50, 54, 55, 38, 336.
them.
429, 430 Where Sentence of Deprivation is necef-
Intereſt in Lands, &c. not to be grant ſary or not. 6, 7, 46,53, 62, 153, 217,
ed, óc. without Writing. 432, 433
218
Deeds of Corporations, if perfect with. Where a Pardon fecures an Incumbent
out Delivery
482, 483 againſt Deprivation. 46, 59,60
Viſitor
II
ver.
6,7
2
0
The TABLE
46
26
26
7, 8, 9
202
21
aj hat)
Viſitor by the King's Commiſſion, re- The Effect of a Diſpenſation. Page
turns Cauſe of Deprivation into the
24, 25
Chancery.
Page 218 At what Time a Diſpenſation to hold
Spiritual Courts may deprive for Simo a Church ought to be made.
26,
ny after a general Pardon.
27, 28
How to proceed in the Spiritual Court What Perſons the King may diſpenſe
to deprive for Simony.
ibid. withal to be Non-reſident.
367
Whether a Perſon incapable be Incum- Diſpenſations to hold a Benefice, altho?
bent till deprived.
52 deprived, is repugnant,
A Churchman may be attached for com- Difpenfation retinere for Years only. 29
mitting Waſte.
453
To hold a ſecond Living Modo fit inz-
fra ten Miles of the former, if Con-
Dignities.
dition.
When to be ſaid conditional. ibid.
What Preferments in the Church are What Diſpenſations are contrary to Law.
Dignities.
Il, 12
Mere Dignities not Benefices with Cure. Commendam is a Diſpenſation.
360 Simoniſt cannot be diſpenſed with.
442
45
Dilapidation.
To a Biſhop to hold a Benefice, when
good.
28, 29, 202, 203
Gifts of Goods, &c. to defraud Suc-To hold Benefices, to what Perſons
ceſſors of their Remedy for Dilapi- good.
dations made void.
399 If neceſſary to qualify Perſons to hold
Long Leaſes Cauſe of Dilapidations. Pluralities.
23, 24
420, 453 What Words neceſſary in Diſpenſation
Money received for Dilapidations, how
for Plurality.
26, 27
to be imployed.
399 Form of a Diſpenſation for Non-reli-
dence.
Court to be ſued for.
ibid How many Livings the King's Chap-
Executors of Curates not chargeable lain may hold by Difpenfation. 202
for Dilapidations.
400 Diſpenſations to take three Benefices, if
Dilapidation a Cauſe of Deprivation. good for two.
ibid. One difpenſed with to take two Bene-
fices takes a third.
27
Diſcent.
Diſpenſations for Pluralities to be ex-
pounded by the Canon Law. 26
Advowſons how they defcend. 72 Difpenfation after Inſtitution, and be-
Pollefio fratris, where it ſhall be. ibid. fore Induction,
6, 26
If being made Biſhop, or tranſlated from
Diſcontinuance.
one Biſhoprick to another, makes
void Diſpenſation before obtained. 28,
Diſcontinuance what, and the Effects of
29, 202
it.
483, 484 Biſhop Suffragan, if he may hold a
What Ecclefiaftical Perſons might have Dignity or Living without Difpen-
diſcontinued at Common Law, ibid. ſation.
28
Biſhop's Leaſe 110t warranted by the Patron's Right of preſenting, not to be
Statute no Diſcontinuance.
452 taken away by Diſpenſation.
To a Biſhop of Ireland to hold a Li-
Diſpenſation. Vide Licence, plu: ving in England, under what Seal to
rality, and commendam.
be granted.
To the Son to hold a Living of his
Of Diſpenſations in general. 20, 21, Father,
>
368
27, 28
6
29
214, GC.
&c. to 30
30/
2
Who
The TABLE
468
171, 172
Who may diſpenſe with a Baſtard, Gc. What Means to compel the Patron of
to be ordained.
145, 214 a Donative to preſent. 31, 107
Difpenfation prevents Voidance of Be- If Patron of a Donative may receive
ncfices.
25, 26,
or fue for the Profits in Time of Vila
Forfeiture for obtaining Difpenfations cation.
170, 171
contrary to Law.
25, 28 The Function of him who hath a Do-
Diſpenſation retinere Dignitatein De native, if Spiritual.
141, 172, c.
canatus good for the Deanery. 29 What Eccleſiaſtical Preferments are or
Biſhop cannot diſpenſe with the Statute
may be Donatives.
107, 172
that injoins reading the Common What Remedy for the Patron of a
Prayer, &c.
300 Donative, if uſurped upon. 307
Diſpenſations againſt the Statute of 13 Given without limiting for what E-
Eliz. cap. 12, void.
146 ſtate.
171
Reſidence of Chaplain difpenfed with How to be reſigned.
31, 32
by the Statute of 25 H. 8. cap. 16. Rclignation of a Donative to the PA-
364 tron and a Stranger.
ibii.
The King's Profeſſor of Law in Oxford Reſignation of a Donative to one Pa-
may hold the Prebend of Shipton, tron where there are more. ibid.
tho' a Lay-Man. 49, 141, 211 Leaſes and Grants of Donatives, by
whom to be confirmed
Diltrers.
Donative recovered, to wliom the Writ
of Poffeffion ſhall be directed. 298
Where the Lord may diſtrain for not If he that comes into a Donative ought
doing Divine Service according to Te to take the Oath, read the Articles, co
nure,
334
Tithes diſtrained Damage-fefant for be-
Power:
ing fuffered to remain too long upon
the Land after ſet out. $86,589 Wife endowed of a third part of a Ma-
nor to which an Advowſon is appen-
Donatives.
dant, ſhall have a third Part of the
Advowfon.
89
Of Donatives in general. Sie from pag.
170 to 174
Dupler Querelai
Donatives why ſo called.
170
How conferred. 170, 171, &c. Duplex. Querela, where it lies, before
Who capable of Donatives. 141, 172
whom, and how to proceed therein.
Who may viſit Donatives. 172
230, 231
No Lapſe of a Donative.
3.1; 107 Sued by the Patron.
290, 300
Biſhopricks anciently Donative (or ra- Allowed by the Common Law.
232
ther Elective).
171 A ſafe Courſe for Clerks to take.
Preſentation, Gc. by a Stranger to a Bringing a Duplex Querela, if it will
Donative void.
I 20, 307 abate a Quare Impedit brought by
How it may become preſentable. 107, the Patron.
233, 234
170 Clerk inſtituted pending Duplex Que-
Donatiöes, tho' made preſentable, yet rela, nö Prohibition thall be grant-
remain free from the Biſhop's Jurif ed.
diction.
Benefices to which Biſhops collate are
not Donatives.
170, 171
Člection:
Donatives preſentable, &c. 107, 170,
171
HAT Preferments Spiritual are
Free Chapels are Donatives: íoj, 172,
had by Election 174, 175
c. Election of the beſt Living of new cre;
G g 8 g 8
ated
:
234
232, &c
107, &c.
WHAT
The T A BL E.
i
Page 305
rór.
°
ibid.
304
ror.
283 Damages for half a Year, where they
ated Biſhops by the Archbiſhops of Writ of Error, if Superſedeas to the
Canterbury and York.
82, 83 Enquiry of Damages.
Electing an unfit Perſon, c. forfeits Verdict for Coſts and Damages where
the Power of Electing.
225 they ought not to be given, is Er-
One prefents, and dies before the Clerk
306
admitted, his Executors prefent ano Error brought by one who had no Lors
,
ther, the Biſhop may admit either at held good.
305
his Election.
76 Error affigned in a Scire Facias brought
to have Execution.
Emblements. Vide Incumbent and Error in one Judgment, if Cauſe to re-
Tithes.
verſe another Judgment.
306
Writ after Judgment directed to a wrong
Enqueft.
Perſon, if Error.
298
Where ſpecial Entry of a Judgment
What Points the Enqueſt ought to en-
may help an Error.
306
quire of in a Quare Impedit, and Biſhop may join in Writ of Error, tho?
how the ſame arc to be enquired up he claims nothing but as Ordinary.
on a Demurrer.
282, 283
Verdiet finds not when the Church be- To maintain the Incumbent in Poſter
came.void, yet good, 283, 290 fion, ſufficient Cauſe for Writ of Er-
A Biſhop ought to have a Knight in his
305, 306
Enqueſt.
What Damages the Verdict ought to ought to have been for two Years
,
find in an Action for not fetting Error.
293
forth Tithes on Statute 2 “ 3 E. 6. Matter in Abatement of the Writ not
638 to be aſſigned for Error.
256
Entry.
Judgment without a Cejet Executio,
if it be Error or no.
272
Entry into Lands how to be made, and Error in Execution no Error to reverſe
by whom.
481 the principal Judgment.
For a Forfeiture, when to be made. Error in giving Damages not Error to
482, 483
reverſe the whole Judgment. 305,
Entry by a Succeffor for Forfeiture, or
306
a Condition broken before his Time.
Ercheat.
483, 484
No Entry where there is a Diſconti- One feiſed of an Advowfon dies with-
nuance.
484 out Heir, to whom the Advowſon
ſhall
go.
75
Erroz.
What Advowſons will eſcheat, and in
what Cafe.
75, 199
Writ of Error of Judgment in Quare
Impedìt given by Juftices of Niſi
Elloin.
prius.
304
Judgment againſt a Defendant dead is What Effcin allowable in an Action of
Error.
265 Qpare Impedit.
270, 271
Writ of Error brought by one as Héir Not adjourned makes the Plaintiff be-
and Executor.
304 come nonfuit.
270
No Writ of Error againſt the King Effoins, how to be adjourned. ibid.
without Petition.
ibid. Elloin no Appearance.
ibid.
The Party ſhall not affign: Matter for May be caſt by a Stranger. ibid.
Error which is for his Advantage. When the Defendant may appear after
293
an Eroin.
ibid.
Bringing Writ of Error, if Superfedeas Defendant may be effoined upon the
to Writ granted to the Biſhop.
305 Summons or Attachment, ibid.
Several
298, 299
:
...
2
The TAB LE.
:
1
1
Several Defendants in Quare Iir?pedit, Depoſitions taken in Ecclesiastical Courts
how they may eſſoin.
ibid. no Evidence at Common Law, but
The Plaintiff not to be prejudiced by Sentence given in the Eccleliatical
caſting an Eſſoin.
263 Courts, contra.
ibid.
Caſting Effoin by a Bi.Flop Defendant in
Quare Impedit makes him as a Di-
Erchangé.
.
fturber.
259
What Pleas cannot be pleaded after an Spiritual Preferinents not to be exchan-
Effoin.
ibid. ged for Lay.
::30, 31
Evidence.
Exchange fuppofeth a Condition to be
void, if not fully executed. 30
Evidence to prove a Reſignation. 32 Patrons muſt preſent upon Exchange of
Non-payment, Evidence of a Diſcharge Benefices.
31, 32
of Tithes. sro, 527, 528,638 Penalty of a corrupt Exchange. 3.2;
That an Office hath been uſually grant-
33
ed in Reverlion.
446
ercoirmunicatior.
Evidence of a Preſcription to be dif-
charged of 'Tithes by real. Compofi- Excommunication ipfo Fatto, if Sen-
tion.
510, 527, &c.
tence be neceſſary.
346
Single Witneſs not ſufficient Evidenco by (No Excommunication for ſmiting in a
the Civil Law.
624 Church; 66. till Conviction of the
Grants for the Augmentation of Vica Offence at Comnien Law.
346;
rages, how to be proved.
397
347
Evidentce to prove the Retainer of a
Chaplain.
23 Execution. Vide Wirit to the si
Evidence fufficient to prove a Suggeftion
Hop.
whereupon to have a Prohibition. 598,
599 Executio Juris non habet Injutriam.
Evidence that the Advowfon of a vi-
259
carage is appendant.
66, 68 One recovers_in Quare Impedit, and
Whether Incumbents need prove read dies, the Executor, not the Heir,
ing and fubfcribing the Articles, &c. ſhall have Exccution.
77
169, 637
Evidence of Benefice with Cure of
Executors:
Souls.
Payment of Tithes to the Vicar, E- Grant of Chattel to one and his Heits
vidence of an Endowment. 391, 392, Thall go toutbe Executors.
92
394 Leafe to a Biſhop or Parſon; and his
Evidence for the Defendant in Action Succeſſors, ſhall go to his Execu-
on Statute for taking Farms. l, 369
373
Iit an Action for not fetting forth of Gtant of the next Avoidance is a Chat-
Tithes, and the general Iſſue płead tel which ſhall go to Exécutors. 76,
ed, what may be given in Evidence.
775 92
636 Execators grant the next Picfenfation
What is neceſſary for the Plaintiff to before the Will proved.
76
prove in an Action brought for not Damages recovered in Quare Impedit by
ſetting forth of Tithes.
636, 637
Executors ſhall be Affets. 245, 264
Evidence fufficicfit to bảr the Plaintiff If Executors of the Husband, or trio
in an Ejectment for å Recóry, and Wife, ſhall preſent to a Church fallen
to put him to his Quare Iimpedit. void in the Life of the Husband. 77
637.:
245
Diſcharge of Tithes by Pope's Bull or The King, and not the Exccutor of Bi-
Compoſition what ſhall be Evidence fhops, ſhall preſent to Churches void,
to prove ſuch Diſcharge. 638 during the Biſhop's Life.
77
Exea
To
tors.
The T A B L E.
ibid.
ibid.
ibid.
ibid.
Executors may by Action remove a Repealed by 3 Ph. & M. cap. 4. and
Clerk preſented by Uſurpation in
revived by i Eliz. cap. 4.
Time of the Teſtator. 76, 77 Vicarages and Parſonages diſcharged cí
Firſt Fruits.
Onc preſents, and dies before the Clerk
178
admitted, Executors preſent another, Where a fourtb: Part ſhall only be paid.
the Ordinary may receive either. 76
224 Former Diſcharges thereof to the Uni-
Executors, how far bound by a void or verſities, &c. confirmed.
voidable Leaſe.
458, 480 Archbiſhop of Wells charged with Firſt
Action lics not againſt Exccutors upon
Fruits.
the Statute of 2 & 3 E. 6. for not fet-Revenues of Hoſpitals and Schools dit-
ting forth Tithes.
597
charged.
ibid.
.
Queen Anne's Authority to crect a Cor-
poration, and ſettle Firſt Fruits, &c.
on the meaner Clergy.
ibid.
But not to avoid any former Grant, &c.
ibid.
fines.
One Bond to be taken for the four Pay-
ments of Fiřít Fruits.
ibid.
WHAT Corporations are bound by What Ecclefiaftical Benefices thereby
.
ibid.
Eccleſaſtical Perſons not bound by Fine Biſhop's Certificate for that Purpoſe.
and Non-claini.
427
179
Finc levied of 'Tithes.
580 Firſt Fruits once applicd, &c. to. ccnti-
Tenant in Tail grants the Nomination nue for ever.
ibid.
of a Clerk by Fine, if his Iſſue be bound Not to diminiſh Penſions charged on Firſt
thereby.
84
Fruits.
ibid.
Fine levied by a Diffeiſee during the Dif- What Benefices for ever diſcharged there-
ſeiſin.
244
of by 6 Ann. cap: 7;
179
Time allowed to Archbiſhops and Bi-
Firtt Fruits. Vide Tenths. ſhops to pay their Firſt Fruits. ibid.
Deans, Archdeacons, Go how and when
Firſt Fruits, when payable. 744, 745 to compound.
Firſt Fruits and Tenths of Churches u-
nited.
181, 183 sforcible Åntry. Vide Indiament:
Statutes concerning Payment of Firſt
Fruits.
Foyfeiture. Vide Penalty.
Firſt Fruits, how to be compounded for.
175
freehold.
Firſt Fruits granted to the King by 36
Hen. 8. cap. 3.
175 Freehold of Church and Church-yard,
Spiritual Perfons, how to be bound for in whom. 380, 381, 387, 389
Payment of Firſt Fruits. ibid. Patron gains no Freehold in the
Ferrors of Spiritual Perſons not to pay Church by Entry in Time of Vaca-
Firſt Fruits.
176 tion.
186
Out of Firſt Fruits a Tenth to be de- Freehold of the Church in Abeyance.
ducted.
ibid.
Vide Abeyance.
Year for Payment of Firſt Fruits, when Freehold not to commence from a Day
to begin.
177
to come.
433
Firſt-Fruits to be reſtored by the Ordi-
nary, &c. to the Incumbent.
ibid.
Firſt Fruits further reſerved by 37 H. 8.
ibid.
Glebes
179, 180
175, &c.
cap. 21.
The I A B L É.
1
Of a Chattel to one and his Heirs ſhall
go to the Executors.
Glebe Lands.
90, 91, 92
Miſnaming Corporations, where it ſhall
make Grants void.
Vide Page 359, 403, 404, 410, 413
474, 475
Patron grants his Advowfon, the Church
being void.
93, 94, 243
Grants. Vide Leares. Void Turn, if grantable over.
ibid.
Of the next Avoidance, the Church be-
ONE
NE ſhall not derogate from his own ing void, what ſhall paſs thereby. 93
Grant.
85 Of the next Avoidance of a Church with-
Ancient Grants, how to be expounded. in the Dutchy of Lancaſter, &c. un-
374, 39 3, 394, 44, ớc.
der what Seal to be made. 91, 92,
Grants in libera Eleenzo/jina, how ex-
220, 222
pounded.
373, 374| Advotvſon not grantable by a common
Expreſſing what the Law implies alters
Perſon after an Uſurpaticn. 129, 244
nothing in Grants.
85 Patron grants his Advowſon after a void
Every Grant to be taken moſt ſtrongly Preſentation.
219
againſt the Grantor, &c. ibid. What Grants are void againſt the Gran-
Words in Grants to be conſtrued accor tor, or not.
243, 244, 477, Bc.
ding to an eaſy, not ſtrained Conſtru- Name of Baptifm changed by Confirma-
Etion.
୨୦ tion, by what Name to purchaſe or
Corporations, how to be named in
grant.
474
Grants.
474, 475 Grant of Primam Veſturam, what ſhali
What Corporations might at Common pafs thereby.
443
Law grant or leale without Confir- Grant of Decimas Garbaruin, what ſhall
mation.
415, 462, 463 paſs thereby.
635
Grant of the next Avoidance by a Biſhop. Where Grants to Corporation may be
without Decd.
373
What Eſtate Church-men might have By the King or Biſhop not to preſent to
made at Common Law, and what at a Church by Lapfe is void. 95
this Day. 414, 415, 426. 455, 456, The King grants a Manor with the Ad-
ỚC. 46 2 vowſon, the Church being void, if the
Spiritual Benefice not to be granted for void Turn ſhall paſs.
94, 95
Years, or at Will.
170 By what Words Advowfons will paſs from
Guardian of Spiritualities, if grantable the King in the Caſe of Reſtitution.
during the Archbiſhop's Life.
445
88
Offices, Rents & Annuities granted by By what Words the King may grant an
Eccleſiaſtical Perſons. 444, 445, 481
Advowfon.
To A. Parſon of D. and his Succeſſors, The King may grant the void Turn of a
and A. Parſon of D. and his Heirs. Church, or a Right of Action, and
373
how ſuch Grants are to be made. 129
By Dean and Chapter, not naming the The King's Grant not to be taken to two
Dcan, if gocd.
474
Intents.
192
To Dean and Chapter, Habendum to The King may grant the Temporalities
their Heirs and Succeſſors.
373 of a Biſhoprick in the Life of the Bi-
Of the Nomination of a Clerk, Habe 12 ſhop.
duin the Advowfon.
90 Non obftante in the King's Grants.
If the Ilabeiidum in a Deed may fever By what Words the King may grant the
that which ivas joint by the Premif Preſentations to livings of Perſons out-
fes.
226 lawed.
IOS
Grauts of Copyholds (Corporations, &c.) Advowſon in grofs not mentioned in the
not reſtrained by any Statute. 129,
Premiſſes of the King's Grant, will not
459, 462 pafs by the Habendum.
87
Hhhhh
Grant
85, 444
87, 88
412
192
Tbe TAB L E.
91
477, &c.
Grant of the Nomination or Preſentation Tenant in 'Tail grants the next Avoidance,
is Grant of the Advowſon Page 90 and dies, the Grant is void. Page 83
Of an Advowſon, excepting the Preſen- Tenant in Tail grants to the Uſe of him-
tations during Life, the Exception is felf and Wifc, void to the Wife. 83
void.
90 Tenant in Tail and his Heir apparent
Of next Avoidance, how to be made. joins in a Grant, void as to the Heir.
83, 470
By what Words an Advowſon may be Grants in Mortmain void.
374
granted.
87, 88 In what Reſpect, and againſt what Per-
Void Turn of a Church, not to be grant fons, Grants, &c. ſhall be faid void.
ed by a common Perſon.
94
Of the third Part of a Manor cum per- Grant to build Houſes on Church or Col-
tinentiis, nothing of the Advowſon lege Land no Alienation, but as a Li-
will paſs.
cence or Covenant.
426
A Manor to which an Advowſon is ap- Grant of a Seat in a Church' to one and
pendant, bargained and fold, the Deed his Heirs, if Good. 384, 384
is not inrolled, the Advowſon will not Gift of Goods without Tradition, void
paſs.
by the Civil Law, but contrary by
Appropriation will not be granted by the the Common Law. Q:
281
Name of an Advowfon.
90
Advowſon of a Church appropiate, ap-
pendant to a Manor, by what Words
to be granted.
199
Grant of next Avoidance alters not the
buly-days.
89
92
IOS
Of an Advowfon, or the Manor to which, H What Hory-days to be obſerved
,
326
506
&c. after Ulurpation. 128, 129, 243
Holy
Termor grants the next Avoidance, if and for what Reaſon.
ibid.
any happen during the Term, and fur- Holy-days how to be obſerved. 311,
renders.
85
34, 34, 3 26, éc.
Grant to A. for Life, fo that he may Canons which provide for the obſerva-
preſent if the Church void during
tion of Holy-days.
313, 314
Life, is a limited Grant.
92 Statute concerning Obſervation of Holy-
Executor grants before the Will proved. days, if in Force.
326
76 Puniſhment for not obſerving Holy-
Grant of a Portion of Tithes, Tithes be days.
328
longing to a Rectory will not pafs What Evens of Holy-days to be kept
thereby.
with Faſting.
327
Grant of a Chapel, a Portion of Tithes Notice of Holy-days to be given by Mi-
belonging to the Chapel will paſs niſters,
332
thereby
ibid. The 29th Day of Mar. 330, 349, 353
Grant to three & eorum cuilibet conjun- Diſcovery of the Powder Treaſon. 329
Etimes diviſi11.
349, 353
Grantee of the next Avoidance relieved The 3 oth Day of January. 331
by the Statute of 13 E, 1. cap. 5: 134
Tenant in Tail grants the Nomination
Hoſpital.
of a Clerk by Fine, if the iſſue in
Tail be bound thereby.
84 Hoſpital preſentable.
170
Tenant in Tail of an Advowſon grants, Leafe by Maſter of an Hoſpital with
if to the Reverſion in Fee, what Eſtate the Conſent of the Brothers and Siſters
doth paſs by ſuch Grant. 83, 84 of the ſaid Hoſpital, if good. 476
Tenant in Tail, by what Means he may Leafe for forty Years made good in Chan-
grant an Advowſon to bind his Iſſue, cery againſt the Maſter of an Hoſpital.
66.
3
841
440
Husband
226
The TABLE.
401, 402, c.
For what Things fixed to the Church
Husband and Wife.
the Parſon may have an Action
.
Page 380, 381, &c.
If the Executors of the Husband or the Spiritual Perſons not to take Farms, fell
Wife ſhall preſent to a Church void, for Lucre, keep Brewhouſes, C. 3575
during Coverture or before. Page 76,
358, ớc.
77, 245 Church void by Statute and by Canon
If the Executors of the Husband or the Law, the Difference. 6, 8, 384, 385
Wife ſhall have an Action for Tithes When a Clerk ſhall be entitled to re-
ſuſtracted during the Life of the Hus ceive, or fue for the Profits of the
band.
283
Church.
137, 155, &C. 404, &C.
Husband and Wife feiſed jointly, or in In whom the Intereſt of the Church is in
Right of the Wife, the Husband can-
Timc of Vacation.
not grant an Advowſon to bind the who uſed to take the Proñits of the
Wife.
86, 87
Church in Time of Vacation before
If they muſt join in brining a Quare 1172-
the Statute of 28 H. 8. cap. II. 401,
pedit.
253, 254
&c.
If Husband and Wife muſt join in a Pre- He who receives the Profits in Time of
fentatiou.
75, 140
Vacation wrongfully, cannot detain
If the Husband and Wife ſhall join in for Payments by him made. 409, 410
Action for ſubſtracting Tithes held in What Perfons chargcable with treble Va-
Right of the Wife.
lue for not paying, Gc. to the Incum-
bent the Profits received in Time of
Vacation.
·402
What Charges Incumbents ought to al-
low out of the Profits received in Time
Jmpropriation. Vide Appropriation. of Vacation.
402, 409, 410
What Remedy for the Profits received in
Jncumbent. Vide Church. Time of Vacation, againſt whom, and
how the Action is to be brought. 408,
HAT Things required to qualify
409
a Clerk to be Incumbent of a From what Time Incumbents are inti-
Church. (Chap. 14, 15, 20.) pag. 141; , tled to the Profits upon Voidances by
Oc. 149, 209, &C. Simony, Ceſſion, &c.
404, 405, &c.
What Methods an Incumbent is to take What Leaſes or Eſtates Incumbents may
to be able to prove Performance of all make, (Chap. 41, 42, 43.) pag. 414,
Things required by Law to qualify
&c.
him to be Incumbent. 168, 169, c. What Charges Incumbents are liable to.
He that holds a Benefice by Commen-
402, 410
dam is an Incumbent, and may plead Incumbents, if puniſhable for Neglect of
29 their Curates.
312, 352
One cannot hold a Benefice and officiate Clerk of an Uſurper removed, if he ſhall
as Curate.
311 retain the Profits.
403, 404
One cannot hold both a Church and a Parſon misbehaving himſelf in Preach-
Chapel of Eafe.
ibid.
ing, or otherwiſe, bound to his good
If a Miniſter may officiate at two Behaviour.
Churches.
ibid. The feveral Duties of Miniſters, (Chap.
Incumbents may diſpoſe of Corn grow 31, 32, 33, 34, 35.) pag. 310, Bc.
ing by them fowed.
403, 410 Neglect of not performing what Part of
Where Incumbents ſhall have Corn on the Service a Miniſter is puniſhable by
the Glebe or not.
401, 504
the Statute of 1 Eliz. 14 Car. 2. 310,
Parfon not to have an Action for taking
311, 313, 314
away Seats in the Church.
382 Parſon Imperſonee. 278, c. 484
Two
as ſuch.
348
The T AB L E.
Page 140
22
346, &c.
Two pretending to be Incumbents, in
what Actions their Rights may be ex-
Infants.
amined.
Page 223, 238, 309
What Remcdy for Incumbents wrong- Infant Heir to preſent by Guardian, &c.
fully put out by the King's Preſentce.
218 Infancy good Cauſe of Refufal of 'a
Clerk.
214
Indicavit.
Infant Noblemen may qualify Chaplains.
Writ of Indicavit, where it lies 198 Infant can't ſurrender by Deed.
439
Of Leaſes, &c. by Infants.
439, 440
India ment.
Informations.
Indictment of forcible Entry for keep.
ing Poffeſfion, &c. of a Church. 43 Information for Non-reſidence, how to
Upon the Statute of 5 G6 E.6. cap. 4. be brought, and in what Court. 370
for drawing a Weapon in Church, Úc. Two Informations brought at the ſame
Time for the fame Matter. ibid.
For indecent Behaviour in the Church. Information upon the Statute of 2 & 3
347, 348 E. 6. for not ſetting forth Tithes.
No Indi&tment for not rcading or ſub-
536, GC.
fcribing the Articles.
50, 51
Indictment on Statute, not to be made Intitution and admiflion. Vide
good by Common Law. ibid. Bifhop, Didinary, and Jus pa:
tronatus.
Induction.
Admiſſion of a Clerk, what. 155,
Induction, what, and how to be made, Admiſſion and Inſtitution removed in
and the Fffects of it.
137, 155, &c.
Chancery for to prevent being loſt,
Induction, by whoin to be made.
155,
&c.
245
&c. If the Biſhop may admit a Clerk once
Induction a temporal Act.
8 refuſed.
214
Poſſeſſion had without Induction. 155, What Remedy againſt the Biſhop for re-
156 fuſing to inſtitute.
230, 237, &C.
Induction by a wrong Perſon, if void. Biſhop not bound to admit inſtantly.
155
227
No Induction to a Donative. 170 Clerk to be examined before Admiſſion.
What Remedy againſt the Archdeacon,
ISI
if he refuſe to induct.
307 Biſhop not to admit on Condition. 30, 31
No Seiſin or Right to take the Profits Two Patrons ſeverally preſent one Clerk,
till Induction.
137, 404, &c.
hoiv the Biſhop ought to admit. 227
Parſon cannot grant the Profits of his One Joint-tenant, Gr. preſents alone,
Church, or fue for them before Indu the Biſhop may admit or refuſe. 225
ction.
406, 407, 414 Biſhop not to refuſe a Clerk for want of
Authority to induct given by the Guar Teſtimonials, &c. or for not ſhew-
dian of the Spiritualitics, determines ing his Orders.
by the making of a new Biſhop. 307, Where the Preſentation is void, the Bi-
308 ſhop may refuſe to admit.
224
Church not full againſt the King till In- Admiſlion, &c. on a void Preſentation,
duction, but againſt a common Patron to what Purpoſes it ſhall fill the
by Inſtitution. 27, 77, 114, 216, 2 22,
Church.
46, 47, 219, 220
407 What Perſons the Biſhop may refuſe to
Parfon Imperſonce by Induction. 278, admit, and for what Cauſe. 110, 140,
279, 484
141, 211, c. 222, 223
3
Having
2 1 2
The TABLE.
1
171, c.
227, 228
195, &c.
217, 218
225, 226
Having another Benefice no Cauſe of Re-Inſtitution by the Guardian of the Spiri-
fufal.
Page 214, 215
ritualities.
Page
The Biſhop may refuſe to admit where Inſtitution to a Donative.
the Church is litigious or full. III,
225, 226, Oc. 260, 262
Intendment.
Biſhop, if he may admit after Preſenta-
tion revoked,
221, 222 A Parſon ſhall be intended reſident
upon
What ſhall be ſaid a Refuſal to admit. his Benefice.
40, 46, &c.
211, 212 An Incumbent ſhall be intended to have
What Refuſal of a Clerk will make the performed all Things required by Law
Biſhop a Diſturber.
to qualify him to hold his Benefice.
The Biſhop fafe, if he admit the Clerk
169
firſt preſented.
227, &c. Seats in Churches intended to be built
The King's Title to be examined before at the Charge of the Pariſhioners. 385
his Clerk admitted.
218 Ancient Appropriations intended fuffi-
Biſhop to adniit the Patron's Clerk, ciently made, till the contrary appcar.
though himſelf hath collated wrong-
fully.
Patron preſents, and dies before Admif-
Joint:Tenants.
fion, the Executors preſent another,
the Biſhop may admit either. 76, 224 Preſentation by one Joint-Tenant makes
Admiſſion and Inſtitution, where nccef Title for reſt.
125
ſary to be made, and by whom. 151 One Joint-tenant preſents alone, the Bi-
155 ſhop may refuſe to admit his Clerk,
Inſtitution, what, and how to be made.
or not, at Election.
155 One Joint-tenant preſents his Compa-
Inſtitution not neceſſary to be made with nion, 'tis good, and the Biſhop can-
in the Dioceſe.
ibid. not refuſe him.
226
Admiſſion and Inſtitution during the Joint-tenants, c. if they ſhall join in
Time of the Archbiſhop's Viſitation, bringing an Action for Subſtraction of
by whom to be made.
I13 Tithes.
633
What Remedy againſt the Bifhop for re-Joint-tenants of an Advowfon, one grants
fuſing to inſtitute.
230, 237, G.
all his Intereſt, 'tis good for his Part,
Inſtitution upon a void Preſentation, is and ſhall bind his Companion. 88
but as a Collation. 110, 219, 220 One Joint-tenant compelled in Chancery
What Right is gained by Inſtitution be to join in Plea with his Companion.
fore Induction.
157, 179
253
Church, in what reſpect full by Inſtitu- Joint-tenancy fevered by Partition. 482
tion. 27, 32, 156, 216, &c. 221, 207,
278, &C. 406 Journeys Account.
Clerk inſtituted puniſhable for Neglect
of Cure before Induction. 32, 407, When a Writ by Journeys Account may
&c. be brought, and the Advantage of
Commendatory may enter into the bringing ſuch Writ. 265, 266
Church without Inſtitution, C. 201, Where a Quare Impedit may be brought
by Journeys Account.
ibid.
Inſtitution after Judgment in Quare Im-
pedit, and before Writ to the Biſhop,
Judgment.
no Superinſtitution.
296
Superinſtitution, when void or not. 216 What to be recovered by Judgment in
217, 296
Quare Impedit. 253, 283, 289, 292
Biſhops uſed to delay Inſtitution until What to be recovered by Judgment in
they had received the Tithes, 8c. Allize of Darrein Preſentment. 253,
401
c. 27, 289
Iiiii
Judgment
202
The T A B L E.
228, 234
228, 235
228, 234
I I2
Judgment in Quare Impedit and Afſize How to proceed in a Jure Patronatus.
of Darrein Preſentment given by Ju-
Page 236
ſtices of Niſi prius. Page 283, 284,301 At whoſe Coſts to be ſued.
227
Judgment to ſtand in Force till reverſed Second Jure Patronatus, where it may
by Error, &c.
131 be awarded.
228
Judgment in a Writ of Right, binds not Biſhop, if bound to award a Jure Pa-
Uſurpations after made.
125 tronatus without Requeſt of the Par-
Judgment not to be confeſſed on Condi ty.
II 2, 227, 235
tion.
30 Enqueſt in Jure Patronatus, how to be
Joint Judgment not to be given on fe ſummoned, and puniſhed for Non-
veral Titles.
253 appearance.
237
Judgment, that an Incumbent fevered Several Jure Patronat. awarded, and
ſhall be reſtored.
304, 305 contrary Verdicts found.
2 28
Church, if void by Judgment in Quare Awarded where one Clerk is only pre-
Impedit.
289, 290 fented, and the Church not litigious.
Who bound by Recovery and Judgment
in Quare Impedit.
123 He for whom the Right is found by fure
Judgment in Quare Impedit may be at Patronatus preſents not within fix
Common Law, or upon the Statute. Months, but a Stranger, if the Biſhop
295
be bound to admit his Clerk. 112,
Judgment without a Ceſet Executio,
where it ought to be, if Error. 272 Biſhop, how he ought to admit after a
Succeffors of Eccleſiaſtical Perſons not Fure Patronatus.
bound by Judgments.
428 Clerk, if he ought to requeſt Admittance
Action on Statute 2 do 3 E. 6. for not after a Jure Patronatus.
ſetting forth of Tithes againſt ſeveral A Stranger found to have a Title by the
Defendants, one is found guilty, the Fure Patronatus.
II2, 234
reſt are acquitted, if the plaintiff ſhall Inſtitution, &c. pending a Jure Patro-
have Judgment.
638, &c.
natus.
234
Action on the Statute 2 de 3 E. 6. for Church how litigious after Verdict in a
predial and other Tithes, and a Ver Jure Patronatus.
dict for the Plaintiff for the whole, no Action againſt the Biſhop for not ad-
Judgment ſhall be given. ibid. mitting a Clerk according to Verdict
Judgment on the Statute of E. 6. for in Jure Patronatus.
235
not ſetting forth of Tithes, ſhall be New Preſentation not neceſſary after
Quod Defendens fit in miſericordia. Jure Patronatus.
ibid. Commiſſioners in Jure Patronatus neg-
Judgment for Plaintiff in Action for not lect or refuſe to act.
237
ſetting forth Tithes, is a Bar to any
other Suit for the ſame 'Tithes. ibid.
Juris utrum.
Conſtitution of Lateran concerning Plu- The Writ of Juris Utrum.
ralities a general Judgment. 6, 16,
Juriſdiction. Vide Tourts.
Judgments to be given according to the
Writ.
253
Plaintiff in Quare Impedit to make Ti-
King.
tle againſt all the Defendants, elſe
cannot have Judgment.
Who may falify a Judgment. 886, TW.. King not bound by the general
Words of Acts of Parliament. 110,134
Is perſona mixta.
506
Jure Patronatus.
Is the Head of the Law.
374
Can do no Wrong.
216
To what Purpoſe provided and awarded. No Plenarty againſt the King. 244
111, 227, 234, 236 Is ſuppoſed always preſent in Court. 279
Nulluni
227, 228
II2
202
116
5
The TABLE
291
221
91
the Biſhop.
140
77, 418
113, &c.
109
Nullum tempus occurrit Regi. Page caſter, under what Seal it ought to
IIO, 117, 137, 244
be.
Page 91, 220
Preſents to Livings of Perſons outlawed. If the King may revoke his Preſent:1-
tion.
The King ſhall not do an Act as Servant Canont collate without preſenting to
to another Perſon
31
What Preſentations the King ſhall have The Queen as a Feme Sole, and may
by the Teniporalities of Biſhops be preſent to Churches, &c.
ing in his Hands.
77 The King not confined in any Court
The King Founder and Patron of all wherein to ſue to recover his Right.
Biſhopricks.
594, anc.
King Supreme Ordinary and Patron. 75,
77, 114, 190, 201
Church not full againſt the King till
Induction.
27, 77,156, 222
The King's Turn of Preſenting not ferved
till Induction.
115
Lapſe.
Temporalities granted to a Biſhop be-
,
. 12. pag.
of
107, &c. 113
All Juriſdiction exerciſed by the Pope, To whom it ſhall go, and how. In
acknowledged in the King. 190 Lapſe, by what Law.
What Axts will prejudice the King's From what Time to be accounted.
5,
Right of Preſenting where he hath
6, 9, 32, 109, 215, &c.
but one Turn.
117, 126, 127 In what Manner the Six Months ſhall
If bound by the Statute of Weſtmin be accounted.
fter 2 cap. 5.
134, Sc. Biſhop Patron, preſents not within ſix
All Lands and Advowfons held of the Months, Lapſe incurs to the Metro-
King.
politan.
114
Grant of next Avoidance to the King, Lapfe not grantable.
95
ſhall have the next Turn only. 92 Quare incumbravit prevents Lapfe. 112
Seiſing two Parts of a Manor to which Infants and Femcs Covert bound by
an Advowſon is appendant, ſhall Lapſe.
have tivo Parts of the Advowſon. No Lapſe of a Donative.
31, 107
88, 100, c. If Lapſe incurs of Recuſants Livings,
Not bound in his Right of Preſenting given to the Univerlities.
99, 100
by Compoſition made to the Pa- If Lapſe ſhall bind Lords who enter
79
for Mortmain.
123
The King not to be intended ignorant Clerk refuſed lawfully, Lapſe incurs.
of the Law.
192, 374
26, 31, 32, 111, 215
The King preſents to Livings, the In-No Lapſe where the Biſhop delays Exa-
cumbent being made Biſhop. 77
mination of the Clerk till after the
If the King's Turn of Preſenting the fix Months.
Incumbent being made Biſhop, be Patron preſents ſo near the End of the
ſatisfied by a Commendaril retinere. fix Months, that the Biſhop hath not
79
Tinie to examine the Clerk, Lapfe
Where the King hath loſt his Turn by incurs.
261
not prefenting for Simony. 96, 97 Naming the Biſhop in the Action, if it
If the King ſhall preſent again, where prevents Lapſe. 109, 112, 260, 261,
the Clerk doth loſe his Living by ill
oc.
Pleading
118 Biſhop not named in the Action, Lapſe
Grant of the next Avoidance of a
incurs.
II2,257
Church within the Dutchy of Lan- No Lapſe to a new Biſhop, where the
FIC-
190
109
trons.
III
:
>
The T A B L E.
448, 449
478, 479
III
86, 479
110, 216
461
preceding Biſhop was named in the Church lapſed, if grantable in Commen-
Action.
Page 112, 113
dam.
Page 201, 202, 203
No Lapſe without Notice, where No-
tice ought to be given. 32, 111, 215
Leate. Vide Giants.
Church void for not paying of Tenths
Lapfe incurs without Notice. 51 Leaſe void, cannot be made good. 440,
No Lapſe where Biſhop refuſeth to a-
445, 479, OC.
ward a Jure Patronatus. 112 What ſhall be faid to be Lands uſually
Lapſe pending a Jure Patronatus. 112,
Ictten.
404 What Leafes ſhall be void, or voidable,
Lapſe pending a Writ of Error. ibid. and againſt what Perſons. 86, 478,
No Lapſe, where the Right of Preſent-
479
ing is in the King, and the Reaſon What Perfons ſhall take Advantage of
of it. 108, OC. 273, 277, &c. voidable Leafes.
Inſtitution, &c. declared void, no Lapfe. By
, what Means a Leaſe voidable may
be made abſolutely void. 86, 480,
If Lapſe ſhall go to the King or Me-
&c.
tropolitan, where the immediate Or- What Acts ſhall affirm and make good
dinary could not preſent. 113, 114,
a Leaſe voidable.
&c. From what Time Leaſes ſhall be faid
Void Preſentation, if it prevents Lapſe. to be void by Act of Parliament, &c.
Wrongful Collation, if it prevents Lapſe. Leaſes ſhall not be good for Part of the
I10, 115, 217
Term, and void for the Reſidue
Inferior Ordinary collates for Lapſe, af thereof.
432, 439
ter the Right veſted in the Metropo- Bonds and Covenants for Enjoyment of
litan: If the Patron, or Metropolitan Leaſes contrary to Law, made void.
be thereby barred of Preſenting. 116,
429, OC. 460, doc.
117
Leaſe of Tithes, where good, or not.
Collation by Lapſe is in the Patron's
430, 638, &C.
Right, and muſt be mentioned in the Leaſe from henceforth, or from the
Declaration.
268, 269 making
Lapſe incurred to the Ordinary, Metro-Leaſe, not ſaying from whence it ſhall
politan, or King, if the Patron may
.
ibid.
preſent. 115, 116, &C. 201, 217 Leaſe for Lives to commence from a
Biſhop dies before he takes the Bene Day to come, not good. ibid.
fit of a Lapſe, who ſhall preſent. The Day whereon a Leaſe is made,
114
when to be taken excluſive, or not.
Biſhop preſents by Lapfe after a
ibid.
wrongful Collation by himſelf. 110, Leaſe for twenty-one Years, and for
twenty-one Years from a Day paſt.
Lapſe, not on Voidance, by Reaſon of
435
Orders, Inſtitution, c. had fimonia- For three Years, and 'fo from three
cally without Notice.
48 Years to three Years, for 21 Years, or
Writ to the Biſhop to admit, not taken Life.
out within fix Months, Lapſe ſhall From three Years to three Years for
incur.
ten Years.
ibid.
Who ſhall have the Advantage of For above threc Years not good without
Lapfe during the Archbiſhop's Viſi Writing.
113 No Remedy for Rent reſerved on void
Lapfe not where the Biſhop is a Di Leaſe.
479, 480
Iturber.
III Leffec by voidable Leaſe may puniſh
Ordinary's Neglect, if it may prevent Treſpaſſors. till his. Leaſe actually
Lapſe to the Metropolit:in and King. made void.
Esc-
433, c.
coinmence.
115
441, &c.
II2
432, OC:
tation.
480
114
5
The T A B L E.
357, c.
456
Executors how far bound by void or Advowſons appendant leafed with the
voidable Leafe, Page 458, 480 Manor to which they are appendant.
Leſſee for another's Life dies, who ſhall
Page 88, 89
have the Leaſe.
441, 442 | Leaſes without Impeachment of Waſte
Lcaſe of a Manor cum Pertinentiis, not to be made by Eccleſiaſtical Per-
if an Advowſon will paſs thereby. fons, Colleges, &c.
452, 453
89, GC. Leaſes without Impeachment of Waſte
To two, o diutius eorun viven', who how made.
453
make Partition, and one of them Leaſes by Eccleſiaſtical Perſons how to
dies; if the Leſſor may enter into his be made, and where good, or not.
Part.
482, &c.
86, &c. 201, 429
Leaſe by a Corporation out of Poſlef-What Eſtates Churchmen might have
ſion, how to be made.
482 made at Common Law, and what
Parſon leaſeth his Parſonage, if the Ad at this Day. 85, 86, 414, 455, c.
vowſon of the Vicarage will thereby
462, &c.
paſs.
67, 88 Leaſes and Bargains to and with Spiri-
Prebendary hath a peculiar Juriſdiction; tual Perſons made void.
and leafeth his Prebend with all Pro- Appropriations reſtrained to be leaſed by
fits and Commodities, if the Peculiar the Statutes which concern Ecclcfia-
paſs by ſuch Leafe. 2. Grants. ſtical Perfons.
459
Leaſes and Grants by Parſons, Vicars, What Corporations might grant or
Úc. where good, or not. 419, 455, leaſe without Confirmation, or not.
415, 462, c.
Leaſe made by a Parſon de fatto. 455, Leaſes in Rcverſion and concurrent Lez-
&c. fes, what,
437, 438
Leaſe of a Parfonage, what ſhall pafs Concurrent Leaſes by Biſheps, when
thereby
67, 88, 121 good, or not.
434, 464
Leaſes by Parſons, &c. void, and void-Concurrent Leaſes by Ecclefiaftical Per-
able.
85, 86, 456 fons other than Biſhops, where good,
Leaſes made by Incumbents to their or not.
436, 464
Curates, how long they ſhall endure. Concurrent Leaſes, when they ſhall
456 take Effect.
438
Leaſes made by Incumbents preſented, Two concurrent Leaſes, the latter tirſt
ſimoniacally.
confirmed.
474
What Lcaſes by Biſhops good to bind Building Terms in London, made by
their Succeſſors. 85, 86,429, 443
Parſons, &c.
What Leafes by Biſhops are good againſt Leaſe of Newgate Market in London.
the King.
86, 411, 412
ibid.
Lands of Biſhops to be leaſed to the Leaſe of Mounken Barn and Tithes
Dean and Chapter in 'Time of Va in Southwark by Maudlin College in
cation.
411 Oxford, how to be made.
454
Succeſſors of Biſhops have Elections to Leaſe by St. John's College in Oxford
make Leaſes void, or not, and by to the Heirs of Sir Thomas White.
what Means.
86
455
Leaſes and Grants by Biſhops, &c. void Commiſſion out of the Exchequer, to
againſt the Succeſſors, but good a take a Leafe.
473
gainſt the Biſhops, &c. themſelves.
85, 477, Úc.
Lecturers.
Lcafe to Biſhop and his Succeſſors, ſhall
go to his. Executors.
373 Lecturers
, who are fo called.
141
The King, during the Teniporalities in How to be admitted and qualified, and
his Hands, cannot confirm à void what Penalties tlicy are liable to.
Leaſe to bind the ſucceeding Biſhop.
86
K k k k k
Lecture
97, 98
425, Gi.
1
207, &c.
1
The TABLE
Page 208
Lecture-Sermons in the Univerſities ex-
cepted from the Penalties of the Sta-
Montmain.
tute of 14 Car. 2
The Clauſe in the Statute of 14 Car. 2. Grants in Mortmain void.
concerning Lecturers licenſed to preach,
Go to whom it extends.
335
What Purchaſes of Corporations ſhall
be ſaid Mortiain.
374 375
Licence. Vide Diſpenſation. The King may purchaſe in Mortmain.
Page 3743
buc.
374
375, &c.
6
Licence to preach where neceſſary, and What fhall be a fufficient Licence to
from whom to be obtained.
147 purchaſe in Mortmain.
ibid.
335 What Corporations are within the Sta-
Licence to build, no Alienation. 426 tutes of Mortmain.
Licence to bury within the Church, by Who ſhall enter for Mortmain, and
whom to be granted. 381, 390
within what Time. 374, GC. 379
Licence to purchaſe in Mortmain. 374 Statutes againſt Mortmain.
374, OC.
Licence of Appropriation how to be Appropriation without Licence, if Mort-
made or given, and by whom. 190, nrain.
190
191, OC. Grant to the King to grant over in
Licence perinde valere.
Mortmain, not good.
379
What Ufes at this Day are not within
Limitation.
the Statutes of Mortmain. 378, 379
What Eſtates are within the Statutes of
Eccleſiaſtical Perſons not bound by any Mortmain.
59, 374 375
of the Statutes of Limitation. 429 Bifhop preſents by Uſurpation, if the
Action for ſubſtracting of Tithes, not Advowfon thereby become in Mort-
within the Statute of Limitations. main.
635 or 636 Citizens of London may dėviſe in Mort-
Statute Limitation extends not to Actions main.
379
grounded on Acts of Parliament. ibid. If Lords, who enter for Mortmain, be
bound by Lapſe of ſix Months, that
Livery and Seilin.
they cannot preſent.
I 23
107
$
A
If it ought to be in the Life of the
moztuarieg.
Parties, or not.
482
What anciently called.
583
Where to be paid, and by whom,
and by what Law due. 569, 583
If an Action of Debt will lie for Mo-
anoz.
ney payable for a Mortuary. 584
If a Mortuary may be feiſed. ibid.
Parfonage may be a Manor. 459 Upon what Reaſon Mortuaries are ſaid
Copyholds are of the Demeſnes to be firſt paid.
ibid.
of a Manor.
452 Mortuaries in Wales.
What Duties payable to the Clergy
Midwives.
in Richmond bire, by Perſons dying
there.
571
Midwives, why licenſed by the Biſhop. Where to be ſued for, and by what
318 Action to be recovered.
Midwives uſed to baptize weak Infants. Mortuaries within the Archdeaconry of
Cheſter.
570, c. 382
Monafteries. Vide abbies.
Penalty
579, 583
581, 618
3
The TAB L É.
222
W
Penalty for taking more for Mortuary fiaſtical Patron, Lay-Patron contra.
than by Law is limited to be paid.
Page 111
Page 569, 584, Sc. Notice of Revocation of the King's
Preſentation, if neceſſary to be given.
Notice of not fubfcribing the Articles, if
neceſſary to be given. 47, 50, 51
Name.
Notice of the Church being void, to
what Purpoſe neceſſary. 6, 7
HAT ſhall be a Name ſufficient Of Reſignation, if neceſſary. 31, 32
whereby to defcribe a Church of the Church being void, how to be
in a Qure Impedit, &C. 251, 252 given, and at what Time.
50, 51,
Biſhop holds a Church by Commendam,
52, 215, 216, 276
how to be named in Suits concerning Ordinary dies before Notice given, by
that Church.
202, 368
whom Notice is to be given. 32
Miſnaming in an Ad of Parliament ſhall Notice to the Vice-chancellor of the
not prejudice.
100
Univerſities, of the Voidance of Li-
Name of Baptiſm changed by Confir vings of Recufants and diſabled Per-
mation.
474 ſons, how to be given, and at what
Name of Corporation, is as the Name of Time.
103
Baptiſm.
ibid. Notice of Deprivation where neceſſary.
Corporations Miſnamed, when it ſhall
61, 62
make void their Grants, &c. 474 Church to what Purpoſes void by De-
In what Caſe the proper Name of the privation without Notice. I 21, 404
Head of a Corporation ought to be Notice to be given of Holy-days. (Vi-
uſed.
ibid.
de Doly-days)
How the mifnaming of a Corporation Notice of the ſetting out of Tithes
in pleading may be help’d. 476 to what Purpoſes neceſſary to be,
Action for not ſetting forth Tithes given.
591
brought by a Parfon, if he need to be
named Parfon in the Writ. 633
OA
Re Abittas.
Daths.
Ne Admittas, where it lies, and when
to be fued out.
239 ATH of Supremacy, by whom to
be taken, and at what Time.
143,
Notice.
153, 154
Oath of Obedience, by whom to be ta-
Notice of Refuſal of a Clerk, how to ken.
143
be given, and within what 'Time. 6, Oath againſt Simony, if to be taken.
215, 216, 276
154
Voidance of a Benefice by Act of God, Oath ex officio taken away. ibid.
no Notice neceſſary to be given. Perſons refuſing to take the Oath of Su-
4, 5 premacy, &c. diſabled from having
No Lapſe without Notice, where No any Spiritual Promotion.
tice is neceſſary.
61, III An Oath taken, declared void by Par-
Where no Lapfe fhall be without No liament.
466
tice.
6, 7, 32, 121
Where Notice is neceſſary, or not, up- Oblations, Dfferings, Obvenis
on Voidances of Benefices by Act of
tions.
Parliament.
7, 3:3, 50, 51
Notice. not neceſſary upon Refuſal of Oblations and Obventions, what. 488,
the Clerk preſented by an Eccle-
571, 69. 575, &c.
Obla-
1.54
The T A B L E.
Page 147, 335
142, 145
Oblations, Offerings and Obventions, all One ordained Pricft, if he may preach
the ſame.
Page 572 without Licence.
Offerings, where to be paid, and how What Cauſe ſuficient to refuſe giving
recovered. 571, 575, 581, 594, 600,
Orders.
617 Archdeacons to be in Holy Orders. 170
Obligation. Vide Bondz. Baſtard not to be ordained without Dif
penſation.
145
Dccupant.
Dutlawry.
Occupancy what, and where it ſhall
be.
442,6c. The King preſents to the Livings of
Difices.
Perfons outlawed. I 042 105, 140,
.
1
291
444, &c.
Offices, how grantable by Eccleſiaſtical. Perſon outlawed, pardoned, yet the
Perſons to bind their Succeſſors. King preſents to his Livings void.
104, 105
Offices granted in Reverſion when good To what Preſentations Perfons out-
to bind the Succeſſors of a Biſhop, lawed ſhall be reſtored by Reverſal
Úc.
445
of the Outlawry.
105, 291
Offices Judicial not grantable in Re-
verſion, Miniſterial contra. ibid.
.
To what Time Pardons relate. 5
Dption. Vide Bichop and Election.
Papifts. Vide Recurants.
The Archbiſhop's Right thereof. 81, 82
Pardon.
Didinary. Vide Bichop and In-
titution.
what Time Pardons relate. 59,
60
Who ſhall be ſaid to be the Ordinary. To what Matters they extend.
ibid.
257, &c. Pardon prevents Deprivation. ibid.
Ordinary when he ought to admit the Diſchargeth Suits in the Spiritual Court
Uſurper's Clerk.
I 29, 135 pro Salute Anime, &c.
45, 59
If the Ordinary may give Titles to Cannot reſtore one diſabled by Act of
Seats in Churches.
384, 385, c. Parliament.
44, 45, 59
Ordinary inhibits Perſons from making Cannot reſtore to a Church void I 2
Diſturbance in the Church or Chan-
50
cel.
347 Pardon of Simony, the Effect of it.
Didination.
45, 46
Pardon of a Recuſant's Conviction, if it
The Method and Form of Ordaining. takes off the Diſability of Preſent-
147, 148 ing.
101, 2, 104, 105
Orders at what Time to be given. 142
Ordination lawful, what ſhall be ſaid to Parceners and Partition.
be ſo
141
None to be taken to be a Prieſt, or Parceners compellable to make Parti-
Deacon, that is not ordained ac tion.
72
cording to the Form preſcribed in the Parceners, how they ought to preſent.
Book of Common Prayer. 141, 142
ibid.
None to execute the Office of a Prieſt or If Privilege of firſt preſenting in the
Deacon, c. that is not ordained. 141, eldeſt Coparcener Thall go to her If-
142 ſue, Aſſignee, &c.
72, 123, 124
Prieſts and Deacons Orders, who capa- Compoſition by Parceners to preſent,
ble of them.
ibid. how to be made.
72
1
3
When
The TAB L E.
72, 136
I 2
When an Advowſon ſhall be ſaid held Forfeiture of a Deacon adminiſtring the
in Coparcenary, or not.
Page ibid.
Sacrament.
Page 147
Partition of an Advowſon in grofs. ibid. For adminiſtring the Sacrament in pri-
Partition made in Chancery avoided.
vate, except to the Sick.
317
I 23, 124 For obtaining Orders corruptly. 48, 145
Partition if it fever the Inheritance, or For obtaining Diſpenſations contrary to
the Poſſeſſion only.
Law.
12, 13, 25
Partition made, ſome of the Coparce- For obtaining Unions contrary to Law.
ners being under Age, if good. 73
Three Coparceners of an Advowſon, Appropriations without the King's Li-
all muſt confirm the Incumbents cence, what is forfeited thereby. 106,
Leaſc.
471
190
Coparceners, if they ſhall join in a Forfeiture for Simony, and who ſhall
Writ of Right after Partition. 73, have it.
34, 43, 44, 45, 46, 48
124, 136 Forfeiture of double Value of the Church
One Coparcener recovers in a Quare for Simony, how to be accounted. 44
Impedit after Summons and Severance For taking, &c. more for a Mortuary
of her Companion, 'tis in the Right than is due by Law.
570, 584
of both.
123 Forfeiture of Incumbents not reading the
Common Prayer, &c. 52, 53, 314
Parfon. Vide Incumbent. Miniſters not reading Divine Service at
the 'Times appointed, how to be pu-
Patron. Vide Advowron.
niſhed.
332
The King Supreme Patron. 75, 77
Of Incumbents making Lcafes, and after
Patron enters into the Churcli in Time being Non-reſident cighty Days, and
of Vacation, he gains no Right there-
who ſhall have ſuch Forfeiture. 422,
by.
403
456, 458, Bc.
The Rector is Patron of the Vicarage Penalty for not obſerving Holy-days. 328
of common Right.
67 Penalty for moleſting, &c. any Preach-
Patron's Right of Preſenting not to be ers, or Miniſter ſaying Divine Service.
taken away by Diſpenſation.
342, 344
Patron no Remedy in the Spiritual Preſentation forfeited by Attainder. 105
Court for
any
Diſturbance. 232 Penalty of Perſons preaching, being by
What Remedy for a Patron upon a Di Law diſabled.
208
ſturbance.
237, 238 Perſons prohibited to preach liable to the
Recovery by the King, reſtores the Right Penaltics, as Perfons diſabled to preach.
of the true Patron.
Collation by Lapſe is in the Patron's Penalty for irreverently handling or or-
Right, and makes a Title for him. dering the Sacraments
, pulling down
247
or defacing Altars, &c.
3.43
If Patron and Ordinary may charge the Penalty for arreſting a Miniſter officia-
Glebe in Time of Vacation. 403,ting in Divine Service.
.
404
For preaching, teaching, &c. that eat-
What Patrons are aided by the Statute ing Fiſh, or forbearing Fleſh, is of
of Weſtminſter 2.
130 Neceſſity.
339
When Patrons are ſaid to be diſturbed. For extolling a Foreign Juriſdiction.
:-238
336, 337
Biſhop Patron of the Deanery. 77, 78 For brawling, fighting, &c. in any
The King Patron of all Biſhopricks. 78
Church or Church-yard.
346
418 Penalty for being Non-reſident. 362, c.
Penalties and fogfeitures. Penalty upon the Pariſhioners, where the
Party molefting Minifters, pc, can-
What Forfeitures the King ſhall have. not.be apprehended.
344
592
L1111
Penalty
6
127
210
340, duc
The TABLE.
er.
39 Articles.
281
476
466, &c.
430, &c.
46
Penalty for reſcuing an Offender, arreſted (Diſcharge of Tithes by Statute 31 H.8.
for moleſting Miniſters, &c. Page 344 cap. 13. how to be pleaded. 416,
For preaching againſt or depraving the
Page 530, c.
Bleſſed Sacrament, or Common Pray- Defendant in Quare Impedit, not to
336 counterplead the plaintiff's Title with-
For preaching Doctrine contrary to the out making a Title to himſelf. 280,
335
For not fubfcribing the 39 Articles. 47 When the Defendant in a Quare Impe-
For uſing ſcandalous Words in Sermons. dit ought to make a Title to himſelf.
336
277
Penalty on Spiritual Perſons, for buy- Plaintiff to recover by his own Strength,
ing, ſelling, or taking Farms.
357 not by the Weakneſs of the Defen-
Penalty for not fetting forth Tithes, who dant's Title.
267, 280
Thall have it, and in what Court to The Defendant muſt either confeſs and
be fucd for.
586, Oc. avoid, or traverſe the Plaintiff's Ti-
For not reſtoring to an Incumbent the tle.
267, 275, 280
Profits received in Time of Vacation Mifnaming a Corporation, how help'd by
of the Benefice.
402, 408 Pleading.
For giving an Oath that the greater Part What Plea may be uſed againſt Unity
of a Corporation ſhall not bind the
of Poſſeſſion in Diſcharge of Tithes,
Lefs.
and how Unity ought to be pleaded.
Penalty on Truſtees or Mortgagees of
Papiſts, or diſabled Perſons preſenting What may be pleaded as Amicus Curiæ.
to Livings.
103
282
Leſſee for Life of an Advowſon, how Sentence in the Eccleſiaſtical Court, how
he may forfeit it by Alienation. 106 to be pleaded.
Penalty for not proving a Suggeſtion where pleading an Advowſon paffed by
made for the obtaining of a Prohibi Deed, Mentioning the Deed is Surplu-
tion.
598 ſage.
89
For a Biſhop refuſing to admit a Clerk Incumbent muſt plead of whoſe Prefen-
upon a Writ to him directed, and mıą tation he is in.
280, c.
king an ill Return to fuch Writ
. 299 Incumbent cannot plead himſelf in of
302, 303
of the Preſentation of one Patron, and
make Title by another, 280, 281
Pencong, Pzories, and Synodals. Biſhop pleads he claims nothing but as
Ordinary, how to be underſtood. 261
Penſions, Proxies, Synodals, &c. how to Biſhop pleads he did not diſturb, how to
be recovered, in what Court, and a be underſtood.
259
gainft whom the Suit is to be brought. By what Law Incumbents may counter-
571, 57, 584, 585, '618 plead the plaintiff's Title, and what
Penſion, if to be demanded before Suit İncumbents may fo counterplead. 254
brougḥt for it.
585, 618
274, 278, 280, c.
If the Patron's Plea ſhall prejudice the
Pictures and Images. Vide Epurch. Incumbent, or the Incumbent's Plea
the Patron.
278, c.
pleadings and pleas. Vide Decla: Pleading Plenarty as at Common Law,
rations and Replications, taken away by Statute Weſtm. 2. cap.5.
282
All Pleas pretending Innocency mụft bę Where the Incumbent ought to pload
pleaded the firſt Day. 259 GC himſelf inducted.
How to plead an Advowſon to be ap- Incumbent may loſe his Living by ill
pendant.
66 Pleading
279
Every one's Right to be taken as plead-| What Pleas the Ordinary may and ought
ed.
434) to plead. 256,257,60.271,272,274,281
Ordinary
279, 280
The T A B L E.
275, 279, &c.
278, 281
2
Ordinary who hath collated by Lapſe, Plenarty without Notice, where it hall
if he may counterplead the plaintiff's
be.
Page 109, 110
"Title.
Page 273, 281 Inftitution, &c. on void Preſentation, to
The Defendant ought to gainſay the Di what Purpoſes it makes a Plenanty:
fturbance and Title of the Plaintiff
,
217, 220, 276
elſe the Plaintiff ſhall recover. 266, What Preſentations do not fill the Church.
46, 47, 216, 281
Statutes mifrecited in Pleading makes Void Preſentation by the King, to what
the Plea ill.
459
Purpoſes it fills the Church. 219, 220
Plea to avoid a Bord or Covenant upon
Statute 13 Eliz. cap. 20.
ibid. Plurality: Vide Diſpenſation.
Refuſal of a Clerk by a Biſhop, how to
be pleaded.
273, 274 What Perſons qualified to have Plurali-
Incumbent before Induction, or in of a ties.
12, 21, GC.
void Preſentation, what Plea he may Valuation of Benefices to make a plura-
plead.
lity within the Statute of 21 H. 1. how
What Plea in a Quare Impedit is the
to be accounted.
6, 7
general Illue.
281, &c. Plurality of Benefices; not to be without
Upon what Pleas in a Quare Impedit the Diſpenſation. 24, 25, &c. 201, Sc.
Plaintiff ſhall have Judgment, and a Qualifications for Pluralities, how deter-
Writ to the Biſhop.
276
minod.
24
Collation by Lapfe, how to be pleaded. What Retainer good to qualify for Plu-
ibid. rality.
22, 23
What Pleas will charge the Ordinary to More Chaplains retained than the Statute
be a Diſturber.
259, 273, &c.
allows, which of them are qualified
In Actions for not ſetting forth of Tithes, to hold a Plurality.
23
what Pleas the Defendants may or The Lord, c. of a Pluralift dies; if ho
ought to plead.
635
Thall retain his Livings.
24, 367
What Plea is the general Iſſue in Actions Chaplain cannot take Plurality after
for not fetting forth of Tithes. 636 Death, Gr. of him who qualified. 24
Miſtake of a Name may vitiate a Plea. Perſons qualified may retain Pluralities,
279
altho'diſcharged of being Chaplains.23
One Jointenant, tc. compelled by Bill What Perſons may qualify Clerks to hold
in Chancery to join in Plea with his Pluralities, and how many they may
Companion.
253
ſo qualify.
21, 23, ớc.
Non-relidence to avoid a Leafe, how to The Statute againſt Pluralities to be
be pleaded.
conſtrued ſtrictly.
23
Conſtitution for Pluralities a gcneral
Plenarty.
Judgment, and how it binds. 6
Procuring a Church to be united, if
Plenarty, by whom it may be pleaded. within the Statute of Pluralities. 185
282 Two Benefices in one Church, if a Plu-
No Plenarty till after ſix Months, and rality.
from what Time the ſix Months Thall Perſons having one Living, diſabled to
be accounted
108, 122, 276 be preſented by the Univerſities to the
No Plenarty againſt the King. 126, &c. Livings of Papiſts, c. 99, io3
282 Dean holding a Prebend in the ſame
Plenarty by Collation when pleadable. Church makes a Plurality.
Church in what Refpe&t full by Inſtitu-
Pođelton.
tion.
32, 114, 221, 222, 276
Wrongful Collation, to what Purpofe it The Effects of a legal Poſſeſſion.
370
makes a Plenarty. 110, 115, 116, Legal Poſſeſſion of a Bencfice, when it
Ec. 237, 277
Thall be ſaid to be obtained. ibid.
4
Setting
459, c.
277
)
The T A B L E:
Page 387
394
ibid.
220
Setting forth of Tithes puts the Owner If Tenants in Common of a Scat may
in Poſſeſſion of them. Page 505, 540,
preſcribe jointly.
590, 632 Parſon cannot preſcribe againſt the En-
Judgment in Quare Impedit puts all dowment of the Vicarage.
Perſons out of Poſſeſſion. 123 | Preſcriptions concerning Tithes. Vide
Incumbent not named in the Action re Tithes.
moved by Writ to the Biſhop, if the
Patron be thereby out of Poſſeſſion.
Preſentation.
Polle (io Fratris, where it ſhall be. 72 Preſentation, what.
149, 150
'The Form of a Preſentation.
150
Prebends.
Right of Preſentation, how at firſt
gained.
71, 72
Prebends, by whom to be given, and Collation and Preſentation, how they
how.
169, 170, 472
differ.
46, 47, 170, &c.
Lay-Man not capable of a Prebend. 10, What Perfons may preſent, or not. 99,
141
101, 105, 140, 141, 214, &C.
Prebend no Bencfice with Cure. 9, 10, What Preſentations are void, and do
170
not fill the Church. 46, 47, 216,
Induction into a Prebend, by whom to
281
be made, and how. 169, or 170 What Guardian may preſent for an In-
Biſhop, Dean and Chapter have Intereſt fant.
140
in the Prebends.
471, 472 Void Preſentation by the King, to what
Prebendary, if to be faid ſeifed in Right Purpoſes it fills the Church. 219,
of his Church or Prebend. 184. 2:
416 Preſentation by Word of Mouth only,
Lcaſes and Grants by Prebendaries,
if good.
151, 220, 281, &c.
(Chap, 41, 42, 43.) 414, &c.Void Preſentation is as none at all. 46,
Prebendary hath a peculiar Juriſdiction,
216, 281
leaſes his Prebend with all Profits and Wrongful Collation, to what Purpoſes
Advantages, if the Peculiar pafs by it fills the Church.
TO, 115, 117,
ſuch Leaſe.
90
217, 238
Wrongful Preſentation by the King, how
prerogative. Vide King.
to be voided.
218, 219
Nomination and Preſentation, how they
Preſcription.
differ, and when to be taken for tlie
ſane.
84, 90, 94, 149
Preſcription, what.
503 One hath the Nomination, another the
Difference between Preſcription and Preſentation, in whom ſhall the Ad-
Cuſtom.
502
vowſon be ſaid to be.
90, 115
Preſcription to have a way through a One hath the Nomination, another the
Church or Church-yard.
381 Preſentation, by whom the Clerk
Pariſh preſcribes to chuſe two Church ſhall be ſaid to come in.
ibid.
wardens to continue in their Office He that hath the Preſentation, not No-
two Years.
391 mination, preſents, if the Biſhop be
Preſcription to fit in the upper Part of bound to admit.
115
a Seat.
384 One hath the Nomination, another the
Preſcription to have the chief Seat in a Preſentation, and the Right of Pre-
Chancel.
288 ſentation comes to the King.
One cannot preſcribe for a Seat as be- Preſentation obtained from the King by
longing to a Perſon, but to a Houſe, Fraud, void.
223
G.
384, &c. How a Clerk preſented ought to be .
Preſcription for a Scat in Nave Eccle qualified.
Jia.
386
4
Leflec
91
L
211, 212
The TAB.L E.
151, 220
220
I46, ớc.
Leſſee for Life of a Manor with an | Preſentation by the King in another's
Advowfon appendant commits a For Right without Title, how to be a-
feiture, the Reverſioner may preſent voided.
218, 219, Sc.
to the Church before Entry into the Preſentation to Livings belonging to the
Manor for the Forfeiture. 84, 106 Dutchy, under what Seal. 91, 92,
A Diffeiſee.of a Manor to which an
Advowſon is appendant, may prefent To what Livings in Value the Lord
to the Advowſon before his Entry Chancellor preſents. 80, 81, 139,
into the Manor
107
220, 222
If Patron may preſent to a Church af- The King may preſent to Livings under
ter ſix Months lapſed. 115, 116, C. the Value of 20 l. per Annum. 79,
Patron preſents to the Ordinary after
140
Church lapſed to the Metropolitan. Lord Chancellor preſents to Livings a-
115, 151 bove the Value, if void. 220, 222
Preſentation by a Corporation, how to Difference between Preſentations made
be made.
150, 151, 164 by the King, and the Lord Chancel-
Preſentation to the Archbiſhop the lor.
immediate Ordinary being inhibited. How the Value of the Livings to which
151 the Lord Chancellor preſents ſhall be
Who ought to preſent, where the Clerk accounted.
80, 81, 220, C.
hath obtained Orders fimoniacally. The King miſtakes his 'Title, bis Pre-
ſentation is void, and where the King
Patron preſents 'as Attorney to another ſhall be ſaid to miſtake his Title.
Perſon.
138
220, 221
If Patron may preſent himſelf. 119, The King's Turn of preſenting not
169, 226
ſerved till his Clerk inducted. I15
Cärporations preſent their Head, void, The King may preſent to a Church
but one of their Members, good. 119, lapſed to any of his Predeceſſors.
'120, 221, 282
ibid.
Grantee preſents his Grantor. 221, 226 The King may revoke his Preſuntation
Executor preſents his Companion. 226 at any Time before Induction.
Who ſhall prefent upon Unions. 186 The King cannot collate without pre-
Preſentation to a Church ſimoniacally, ſenting to the Biſhop.
31
to what Purpoſes void. 217 The King ſhall not preſent anew, here
Two bring Quare Impedit, one is ſum his Clerk hath loſt his Living by ill
moned and ſevercd, the other reco Pleading.
118
vers, he that was ſevered ſhall not The King preſents upon Lapſe as fu-
preſent.
ibid.
preme Ordinary and Patron.
114,
If Patrons may vary in their Preſenta-
tions.
111, 221, &c. The King's Preſentation by Reaſon of
Patron varies in his Preſentation, the the Temporalities of Biſhops in his
Biſhop may admit either Clerk. 224, Hands.
77
225 Preſentation by the King without Right,
New Preſentation not neceſſary after when it ſhall make an Uſurpation.
Recovery in Qzare : Impedit, &c.
46, 47
224 The King by his Preſentation ſuppoſeth
The King's Clerk not to be received, a Right where he hath none, 'tis
where the Church is full, till Reco void.
70, 71
very.
218, &c. What Preſentations by the King make
Prefentation by the King under what an Uſurpation.
ibid.
Seal to be made. 91, c. 150 or How the Church is to be ſupplied till
the King preſents.
108
M m m m m
The
222
1
116
151, 220
..
The 'T Å BLE:
IIO
22.0
tron.
!
The King prefents after the 'Tempora- \Lay-Man prefented, if the Church be
lities granted out of his Hanids to a thereby full:
33, 73
Voidance fallen before. 27, 78 DE: the Guardian, or Heir being Infant,
The King preſents, the Ineunibent being shall profen
140
Alade Biſhop
78;&C. Głkirdian marries one Coparcener, and
The King preſents to Livings of Per-preſents, in whoſe Right it ſhall be.
fons outlawed.
140, 291
73
The King preſents upon Simony, and Incumbent having one Benefice under
where the King's Right of Preſenting Value accepts a ſecond;. if the Patron
in ſuch Caſe is loft.
37, 43, 44, 739 may preſent.
5,6
90,197, &c. Incumbent in by. Ufurpation dies within
The King preſents to Livings of Alicns fix Months, the true Patroit: may
after Office found.
106 prefent.
1 2 3, 138, ớt.
The King preſents · Ratione Lapfus, Patrons adviſed to preſent before fix
having no Right; if Lapfe to the Or Months near cxpircd, and for what
dinary bc thereby: barred:
Reafon.
109
Preſentation by the King of a Perſon Patron prefents and dies, his Executors
difabled by Law, void.
preſent another Clerk, the Bifhop may
Ecclefiaftical Patron prefents one who admit cither.
76, a C. 2 24
is refuſed as inſufficient, he thall not Two Patrons ſeverally prefent one
prefent airother.
225 Clerk, how: the Bishop ought to ad-
Esccutors, where they fhalt preſent. mit.
227
716, 94, 224 Uſurper prefents after Deprivation, and
Onc appoints by Will who his Execu before Notice of it to the true Pa-
tors fhall preſent.
94, 226
404
Onc Joint-tenant, or Tenant in Com- Grantce of the next Avoidance loféth
mont, prcfonts his Companion. 125 the Fruit of his Grant; where the
221, 226
Incumbent is made Bithop '92
One Joint-tenant, or Tenant in Com-Compofition-to preſent in Turns made
mon, &c. prefents alone, the Bifhop by Tenants in Comman. :: 72
nay admit or refufc the Clerk. 226, Incumbent being convidt of extolling
228 foreign Juriſdiction, who ſhall pro-
Preſentation by onc Joint-tenant, or Te ſento
3:36
nant in Commor, If it fhåll put the Patrons muſt preſent upon, Exchange of
others out of Poffeflion.
124, 125
Benefices.
30 07:31
Church being void, the Advowfon is Where the plaintiff after Recovery in
granted over, who fhall preſent. 243. Qyare. Impedit may préſent without
Mortgagec of an Adwowfon is paid off
, a Writ to the Biſhop.
296
the Church becomes void ; the Mort- Corporation preſents by a wrong Name.
gagce reconvey's, who ſhall preſent
475
to tlio Avoidance.
ibid. New Preſentation not neceffary: after
Preſentation by one Joint-tenant alone Jure Patroiatus.
makes Title for all.
125. Tenant in Dower to preſent to every
Lords-prefent to Livings of their Vil. third Turn
...,
75
lains.
106 Husband and Wife, how: they ought to
Prefontation in Time of Kar yoid, and prefent.
75, 76, 140
makes no Title.
122, 221 Husband and Wife Prefont jointly bạ-
Lapfe during the Archbiſhop's Viſita ving no Right, the Wife gains. :no-
tion, who ought to prefent, and to things
whom the Preſentation ſhall be made. If Husband, or. Executors of the Wife,
113, 151 Thall prefent to a Church void in the
Wherc Preſentation by one. Perfon ſhall Life of the Wifc.
75
veſt a Right in another. 11, 72, 92, If the Wife, or the Executors of the
96, 137! Husband, ſhall preſent.
ibid.
Husband
!
I I2
$
I 20
Tbe TABLE
or not.
Husband grants the thied Turt, aus!, Prohibition, the King's Writ, and any
dies, his wife is, endosved, the Wife,, que may pray to have it,
Pigia 43
not the Grautic, fialt preſent to the When to be granted after Comfültation.
third 'Turn.
Page 75
60g 6.04.
What ſhall be a fufficient Preſentation Defendant in the Prohibition, dics, the
by the Grantec. of the next Avoid Executors Diay proceed till now Pro-
ance to ſatisfy his Turn. 92, &c. hibition granted.
Zbid,
Simoniacal Preſentation by a Stranger, a new Prohibition be grantáble un
the Patron, and not the King, Thalli on the fame Eibel
' after au Appeal.
preſent.
119 1201
604
Where. a: Biſhop. may prcfent by Lapſe, (Prohibition in a Suit for Titles, How
pending a Qilare Impedit againt him. to be hacia
5:99; 599
258 To Suit for treble Value of 'i'ithas in
Biſhop dies before he takes the Benefitſ thic. Spiritual Court. 5597-5965
of a Lapſe, who ſhall preſent. 114 Suit in. Spiritual Cout for a Diodus, or
Arclibifhop of Canterbury“ prefents" tol upon a Cuſtom, when to be prohi-
the beſt Living of cvery now Bi-
bit.:da. (@lap: 5415, 56.) 586
ſhop, by what Law; how Option of Where ſhall be to the Spiritual Court
ſuch Living is to be made, and for tlie Colts, as well as for the
whether the Archbiſhop of Work hath Principal.
581
the fame. Privilege. 89, 81, Suic. To Suit for a Penſion, when grantable
To, what. Livings of Papiſts, &c. tha
584, 617,66
Univerlitics Thall preſent, and what Prohibition, if grantable to Suit for
Perfons they may not preſent. 98, 99, Mortuary,
582,617, 618
102. Spiritual. Court adjudging contrary to
Feoffment to Uſe before the Statute of the Common Law, if Csufç for Pró-
27 H. &.. and after, who ought to hibition.
3.9.4, 5880,628
prefent.
140 Suit in the Spiritual Court between
Preſentation not to be recovered after Pårſan and Vicar;, no Prohibition. 91,
fix Months Plenarty..
2441)
2002 3943 591, 620
What Means to compel the. Patron off Suit between Vicar and' Impropriator,
à Donative to prefent. 31, 32, 1.06
if Prohibition. Thall.be granted. For
Donatives preſentable, and how tlrcy Prohibition to Suit for Tithes of a
niay becomig fo...
171
Mill.
Preſentation by a Stranger to a Dona-To Suit for the Tithes of Rakings, and
tive void.
120,-307, 308 how the Suggeſtion ought to be.
Difference between Preſentation and Com
542
mendam,
201 Párol. Agreement to diſcharge the
Deanery prefentable, &c: 170, 171, &c. Payment of Tithes during Lifs, if
Chapel preſentable.
1.70, 25 I
Ground för. Prohibition.
430
If Prohibition Thall be granted where
Proclamation,
thc Spiritual. Court bath proper Ju-
rifdiction.
623, 624
Proclamation for preventing and pu: Plea, that Tithes : lycre truly, ſet forth,
niſhing Immorality and Prophaneefs refuſed in the Spiritual Court, a Pro-
354, 355 hibition granted. 588,589
Proclamation of Briefs and Gitations, Land barren or not, prohibited to be
&c. in Churches, an Abuſe: 3563 tried in Spiritual Court. 57.9
351 Suit for: Dilapidations, not to be
pro-
Prohibition. Vide Suggetion. Probibition to ſtay Proceedings in the
Spiritual. Court upon a Spoliatis n.
Prohibition to be granted ex debito. Ful
309
ftitiæ.
43
4
Spiri-
568
2
.
.
?
The TABLE
232, C.
Spiritual Court awards Damages for Suit in the Spiritual Court upon the
triking in the Church, Go. Prohibi Statute of 2 3 E. 6. for not fet-
tion granted.
347
ting forth of Tithes againſt an Exe-
Clerk removed by Judgment in Quare cutor; no Prohibition lies.
597
Impedit, and another inſtituted, the
firſt libels in the Spiritual Court, a Proof. Vide Evidence.
Prohibition ſhall be granted. 299
Suits in Spiritual Court concerning the
Purchaſer.
Titles of Advowfons, ſhall be pro-
hibited.
232 Where the Purchaſer of an Advowſon
Biſhop inſtitutes the Clerk of a Stranger, is without Remedy by Uſurpation
pending Duplex Querela, no Prohi and Plenarty of ſix Months. 135,
bition.
136, 138
If Spiritual Court proceed after In-
duction, Prohibition ſhall go. 229,
232
Where Prohibition ſhall go to ſtop a
Duplex Querela. 232, c. 238
Duare Incumbjavit.
Spiritual Court refuſing Proof by one
Witneſs, if Caufe for Prohibition. Uare
612, 629, 630 and what may be pleaded there-
Suit in the Spiritual Court for Diſtur to, and in what County to be
bance to Seats in Churches, when to brought,
239, 240, 263
be prohibited.
382, 386 If it lies after Writ of Error brought
Preſentee refuſed, and another pre of a Judgment in Quare Impedit.
fented, c. if the firſt libels againſt
305
the ſecond in the ſpiritual Court, A fecond Quare Incumbravit after the
Prohibition lies
215, 225
Plaintiff hath been nonfuited in a
Prohibition to the Spiritual Court, if it former.
240
Shall be before Plea there pleaded. The Effect of a Recovery in Quare 113-
538, 630, 631 cumbravit.
240
Oath to be made of the Truth of the Quare Incumbravit prevents Lapſe. 112
Suggeſtion before Prohibition grant-
ed.
631
Quare non Admiüt.
Suit in the Spiritual Court to compel
Pariſhioners to come to a Church Quare 11011 Admiſit, where it lies. 239,
united, Prohibition lies.
184
302, 303
Prohibition to the Spiritual Court up- In what County to be brought, and
on. Denial of a Plea of Simony.
43
what ſhall be a good Return or Plea
If Prohibition ſhall go notwithſtanding thereto.
264, 303
Variance between the Suggeſtion and What to be recovered by Quare non
Libel, or in the Proof of the Sug Admifit.
264
geſtion.
598, 599 Judgment in Quare non Admifit de-
Where any Matter is prohibited by Sta pends on the Judgment in the Qua-
tute, Prohibition lies to any Court re Impedit.
257
that proceeds contrary thereto. 622,
623 Quare Impedit. Vide Declara:
Prohibition to hinder Waſte. 43, 453 tions, and pleadings.
Prohibition to Suit for cutting down
Trees in the Church-yard, C. 381, Quare Impedit, where it lies, by whom
391
and for what.
2 3 3 2 34. Chap. 22,
Suggeſtion for obtaining a Prohibition,
GC
how and when to be proved. 598, Writs of Qžare Impedit, how to be
599
framed, teſted, &c. 248, 249, 252
$
4
The
The T AB L E.
6
112€127.
270, c.
'The Effećt of a Quare Impedit.' Page | Quare Impedit by the King, by Reaſon
243 of a Biſhop's Temporalities in his
What to be recovered by Judgment in Hands, what Plea thc Defendant may
it.
283, 284, 289, 292 not plead.
Page 7
Quare Impedit a Writ of Poffeffion. 245 Quare Impedit upon the Incumbent's
"I'is of higher Nature, and of more ge Accepting a ſecond Living under Va-
neral Uſe, than Darrein Preſent lue.
242, 253 Husband and Wife, if they muſt join ini
When a Quare Impedit ſhall be faid Quare Impedit.
242, 253
depending.
239 Where a Patron is not put to his Quote
What Days of Return in it.
Impedit.
238, c.
What Proceſs in it.
ibid. What Pleas Incumbents might plead at
No Damages to be recovered in a Qua Comnion Law.
254, 274, &c.
re Impedit at Common Law. 235 Who ſhall be ſuch an Incumbent ils to
No Quare Impedit againſt the King. plead by the Statute 25 E. 3. c. 7. 254,
255, 291
275, 27, 28o, Úc.
Who ought to join in the Writ, and a- Incumbent wrongfully put out by the
gainſt whom to be brought. 253 King's Preſentee what Remedy. 218,
Where the Patron ought to be named in
&c.
the Writ or not.
254, Gc. Compoſition by Fine to preſent by
Who ſhall be ſaid Patron againſt whom Turns, what Remedy thereupon. 238,
the Writ ſhall be brought. ibid.
OC.
Naming of the Patron, for whoſe Be- Compoſition by Tenants in Common to
nefit.
256 preſent, when to be ſhowed in Quarën
Ordinary named in the Writ, to what Impedit.
72 73
Purpoſe.
257 Nonſuit or Diſcontinuance in one Qua-
Ordinaries anciently rarely made Par re Impedit, if Bar in another. 243,
tics in Quare Impedit
.
261, 262
265, &c.
Plaintiff and Defendant when both Judgment in one Quare Impedit, if Bar
Actors in Qucre Impedit.
277
in another.
What Seiſin ſufficient to bring a Quare Judgment in one Quare Impedit, if Bar
Impedit.
245, 267 to another.
ibid.
Quare Impedit, in what County to be There ſhall not be two Quare Impe-
brought.
363 dits, &c. of the fame Diſturbance.
Age, Protection, &c. not allowable in
242, 243
Quare Impedit, euc. 271, 303 Darrein Preſentment brought pending
Incuinbent not named, ſhall not be re a Quare Impedit.
243
moved by .Quare Impedit. 47, 219, Hc that recovers in Quare Impedit, and
256 rcmoves the Incumbent, ſhall not
Quare Impedit abated for falſe Latin, have the Mefne Profits.
296
&c. the Plaintiff may have a new The Biſhop's Rcfuſal to admit, and not
Writ.
248. 6o.
the Diſturber's Preſentation, intitles
That llull be a Name ſufficient to de the Patron to his Qyare Impedit. 260
feribe a Church by in a Quare Impe- One Coparccner recovers after Sum-
dit.
nions and Severance, if it ſhall be in
Church have two Names, how the Right of both.
123
Quare Impedit ſhall be brought. 252 To what Purpoſes a Church is void or
Declarations in Qnare Impedit alledg full after Judgment in Quare Impedit.
ing ſeveral Preſentations, if double.
295 GC. 404
268, 269 One brings Quare Impedit after the
Preſentation of the laſt Incumbent, by Church full of his preſentation. 266,
whoſe Death the Church is void, if
geceflary to be alledged.
247
Ņņnno
Judgnicnt
265, &c.
251, &c.
292
)
The TABLE
Page 269
96, 97
IOI
Judgment in Quare Impedit puts all ſhall or may be. 136, 250, 251,
Perfons' out of Poffeflion. Page 123
What Judgment in Quare Impedit ſhall Quare Impedit preſentare ad Ecclefiant,
ibid.where Right to a Moiety only. 1373
put a Patron out of Poſſeſſion.
Executors. bring Quare Impedit upon
250, 251, 269
an Uſurpation in the Life of the Te Quare Impedit againſt a Sheriff for re-
ſtator:
76
fuſing to give. Poſſeſſion of a free
What Plcas the Ordinary may or ought Chapel.
307
to plead. 255, 256, 257, 271, 272, No Quare Impedit or. Darrein Preſent-
281 ment at Common Law after the
Ordinary maintained to be a Diſturber Church full.
1:31
after Plea that he claims nothing but
as Ordinary. 258, 272, 273, 286,
Recuſant.
294
Where Preſentation by one Perſon ſhall Popiſh Recufants convict diſabled to
make Title to another. 246, 247 preſent, &C.
98, 99, ớc.
Quare Impedit by Executors, how to Truſtees of Popiſh Recufants diſabled
be brought.
2-45
to preſent.
102, 103
Quare Impedit of Church new erected Penalty of Truſtee of Popiſh Recufant
before any Preſentation. 246, 267 preſenting without giving Notice to
Within what Time the Lord ought to the Univerſities.
103
bring his Qziare Impedit upon an A- Popiſh Rccufant before Conviction dit
lienation in Mortniain.
I 23 abled to grant the next Avoidance.
Quare Impcdit by the Patron after fix
99
Months, an Ufurper having preſented Fraudulent Grants made by Popiſh Re-
by Siniony.
cufants are void.
What Prefentations ſhall be fufficient Preſentations of Popiſh Recufants veft-
to make Title in Quare Impedit. 251,
ed in the Univerſities 98, Bc 102,
266, 267
&c.
Diſturbance laid after Date of the Writ. Preſentations made by Recuſants, if
258. 275
void or voidable.
99
The Defendant in Quare Impedit not What Intereſt the Univerſities have in
to counterplead the plaintiff's Title Recufants Livings.
without making Title to himſelf. 267, What Intereſt Recuſants have in their
277, &c.! Livings after Conviction.
Quare Inpedit, how to be brought after What Grants by Recufants ſhall bind
Union.
186 the Univerſities.
Quare Impedit of a Vicarage. 249 Recufant not to leaſe his Advowſon in
Quare Impedit, if it lies on Preſentation Truſt.
to a Church appropriate. 245 Where the King, and not the Univerſi-
Quare Impedit of a Church in Wales, ties, ſhall preſent to Recuſants Li-
where to be brought.
263! vings.
Quare Impedit not to be brought with- Recufant conformeth himſelf after a.
in Liberty or Franchize.
263, 264 Right of preſenting is veſted in the
Quare Impedit by him that hath the Univerſities.
Nomination, &c. only, how to be Perſons refuſing to make, repeat and
brought.
90, 94, 249
ſubſcribe the Declaration according
Quare Inpedit of a Chapel. 249 to Statute 1 W. M. c. 26, diſabled
Ohare Impedit by a Chapter againſt to prefent, c. as Popiſh Recu-
their Dean.
245
fants.
Quare Impedit of a Donative, the Form
thercof, &c. 240, 257, 258, 307 Refuſal. Vide Jntitution.
Quare Impedit præſentare ad medieta-
tem, tertiam Partem, &c. where it
3
Rela.
100, &c.
99, &c.
100, &c.
99
100, OC.
Іоо
IO2, ớc.
The TABLE.
451, c.
Leaſes by Colleges, what Rent to be
Relation
reſerved thereby. Page 453, 454
Where the uſual Rent ſhall be ſaid to
Relation a Fiction in Law, and fhall be reſerved or not.
not work a Wrong.
268 Accuſtomed Rent, what ſhall be faid
To what Time Pardon ſhall relate. 59, to be fo, where differents Rents have
60 been reſerved on ſeveral Leaſes.
450
To what Time Acts of Parliament ſhall Rent reſerved by concurrent Leafes,
relate.
60, 516, &c.
when it becomes payable. 438, 439
Releaſe
Replication:
372
127, &c.
ΙΙΟ
367, etc.
Releaſe of one Coparcener, &c. to an An inſufficient Plea may be made good
Uſurper ſhall not prejudice his Com by the Replication.
275, 276
panion.
247, 265 Plaintiff by Replication maintains the
Leaſe to Chantery Prieſt and his Suc Biſhop a Diſturber after Plea that he
ceſſors, the Leſſor releaſes all his claims nothing but as Ordinary. 258,
Right to him and Succeſſors, what
272, 273, 286, 287, 294
is gained by ſuch Releaſe.
The King releaſeth to an Uſurper, if Bequeft. Vide Notice.
void.
Releaſe to the Patron in Time of Va Reüdence and non-reüdence.
cation, to what Purpoſe good. 403 (Vide Chap. 37. Pag. 362 to 371.)
Releaſe of all Right to Land will not
extinguiſh Tithes.
503 What ſhall be ſaid Non-reſidence or not.
Grantee of the next Avoidance cannot
366, 367
accept a Releaſe of the Advowfon. What ſhall excuſe from Rclidence.
Releaſe from one Joint-tenant to ano-What beneficed Perſons may be non-
ther, where good.
94
reſident.
362, c.
Non-reſidence, how puniſhed. 362, 363
Remitter.
Biſhops, if required to reſide, and by
what Law,
368, &c.
Where one ſhall be remitted to an Ad- What ſhall be Non-reſidence to avoid a
vowſon after Uſurpation. 138, 139
Leaſe, and how to be pleaded. 456,
457, ớc.
Rent.
Every Parſon intended reſident upon
his Benefice.
370
Out of what Things a Rerit may be re- Sixty Days Abſence by Perſons pre-
ſerved or not. 443, 438, &cfented by the Univerſities to Livings
Rent which ſhall not be incident to of Papiſts, &c. makes the Livings
the Reverſion.
443
void.
103, 104
What Remedy for Rent reſerved out of Qualified Chaplains, if they may be
a Fair, or other ſuch incorporeal non-reſident without Diſpenſation.
Thing.
443, 478
Rent, how to be reſerved by Eccleſi- Information for Non-reſidence, how to
aſtical Perſons in their Leafes.
450
be brought.
369, 379
Biſhop reſerves Rent payable to the Two Informations for Non-reſidence,
Dean and Chapter in Vacation of the brought at the fame Time for the
Biſhoprick, void.
411 fame Offence
370
Rent referved payable at the uſual
Feafts during the 'Term, or ten Days
after.
Relig-
367, &c.
452
.
The T Á B L E.
Relignation.
Revocation,
223
Reſignation, how to be made, to whom, Preſentation revoked. Page 221, duc.
and by what Words, (Chap. 4. per Where the King may revoke his Preſen-
totun, cide 39, 40, &c.)
tation, and what ſhall be fuch Revo-
Reſignations, why to be made to the cation,
ibid.
Ordinary, &c.
31, 32 Notice that the King has revoked his
Reſignation to the King, &c.
30 Preſentation, if neceſſary. 223, 225
Corrupt Reſignation, how puniſhed. 3 2. Lord Chancellor, &c. if he may revoke
33
his Preſentation.
225
Reſignations conditional, when good. 30 If Inſtitution may be revoked, and by
Rclignation not effectual till accepted. what Act.
222, 223
31 Death of Patron, if it revoke the Prefen-
Patrons niuſt prefent upon Reſignations. tation.
224
30, 31 What Patrons may revoke their Preſen-
Bishop cannot reſign to the Dean and
tations.
221, 222
Chapter.
31 Mandate to the Archdeacon to make In-
Evidence to prove a Reſignation. 32
duction revoked.
Reſignation-Bonds held good, but the
ill Uſe of them reſtrained. 40, 41
Reſignation after Inſtitution and before
Induction.
31, 32
Reſignation of a Donative.
31'
Sacrament.
Incumbent after Recovery in Quarc 11-
pedit may relign.
296
TH
HE Miniſter's Power in admitting
Reſignation of Donatives, how to be or refuſing of Perſons to the. Sa-
made.
31 crament.
Reſignation of Donative to the Patron The Miniſter's Duty in adminiſtring the
and a Stranger, or to one Patron on Sacrament.
ibid.
ly.
ibid. Canons for the more regular Admini-
Reftitution.
ftration of the Sacrament.
215, 216
A common Error in ſonic Perſons re-
By what Words Advowfons will paſs ceiving the Sacrament to qualify them
from the King in caſe of Reſtitution. for Offices.
88 Sacrament to be adminiſtred to the Sick.
To what Preſentations a Perſon outlaw-
217
ed ſhall be reſtored upon Reverſal of How many Perſons to be preſent at re-
the Utlawry.
105 ceiving the Sacrament.
What is comprehended under the Word Notice to be given of adminiſtring and
[Dues] in the King's Reſtitution.
receiving the Sacrament.
Return. Vide Wirit to the Bifhop.
Sacrilege.
215, Go.
216
94
217, ớc.
What ſhall be a good Return to a Quare Sacrilege, what.
390
non Admiſit.
303
What ſhall be a good Return to a Writ
Scire facias.
directed to the Ordinary upon Reco-
very in Quare Impedit. 299 Scire Facias by the Party that recovers
Archbiſhop returns upon a Writ, oc. in Quare Impedit, againſt the Incum-
that 'tis not within his Juriſdiction. bent in Poffeffion.
292, 299, 300
297 Scire Facias upon an Agreement by Fine
Biſhop fined, if he make a bad Return. to preſent by Turus.
298, &.
299, 300, 303
3
Seats
The TABLE.
Who ſhall prefent, where the Incum-
Seats in Churches. Vide Church. bent obtained Orders Siniogiacally.
Page 145, 146
Seiün.
To what Purpoſes a Church Ihall be faid
full by a Simoniacal Preſentation.42.93
Preſentation the only Sciſin of an Ad- Church, to what Purpoſes void by Si-
vowfon.
Page 277
mony.
42, 405
Seiſin of an Advowſon once had not de- Simony makes Admiſſion, &c. void. 11,
feated by Uſurpation.
137
46, 48, 405
Bonds given upon Simoniacal Contracts,
Sequetration.
if void.
40
Simony not to be diſpenſed withal. 44
Sequeſtration of a Bencfice by reaſon of Bonds to reſign, if Simoniacal. 39,
dc.
the Incumbent's offending againſt the How ſuch Bonds are accounted of in the
Statute of 13 Eliz. 422, 423, 457,6c. Court of Clancery.
ibid.
Sequeſtration of an impropriate Parſo- Bond that the Clerk ſhall reſide, not Si-
nage for not repairing the Chancel. moniacal.
39
388 Bond to pay ten Pounds yearly to the
Ordinary may requeſter the Profits of Son or Widow of the laſt Incumbent,
the King's Church till he preſent. 77, if Simony:
38
78, 108 Averment, if allowable, and where nccef-
Profits of Church to be ſequeſtred where ſary to make Bonds Simoniacal. ibid.
the Titic is in Controverſy. 309 Simoniacal Contract made and afterwards
If they, who are to receive the Profits the ſame Perſon preſented gratis. 43
of a Church by Sequeſtration, may Simony to buy the next Preſentation, the
fue for them, if detained.
408 Church being void.
37
If the Sequeſtrators ought to pay, &c. To buy the next Preſentation, the In-
the Profits received to the Ordinary. cumbent being old or fickly. 349 35
408, 409 Simony, where the Clerk and Patron are
Profits not diſpoſed of to be reſtored in ignorant of it.
37. 44
Specie after Sequeſtration taken off
. Simony, in the Father by purchaſing the
next Preſentation for his Son.
35, 44
What Remedy againſt the Sequeſtra- To procure the Grantee of the next A-
,
ibid. voidance to ſurrender his Grant, and
Profits of the Church fequeſtred where the Grantor to preſent a certain Per-
the Incumbent is abfent above eighty fon.
Days in one Year.
422 One buyeth the next Preſentation with
Intent to preſent A. who is preſented
Simony.
acccordingly, if Simony.
35
Covenant on Promiſe, in Conſideration
Of Simony. Vide Chap. 5. per totum he will marry his Daughter, Gc. will
& Pag. 48, 97.
procure him to be preſented, if Simo-
Simoniacal Contract, how it may be ny.
36, 37
made.
33, &-c. How the next Preſentation may be
Clerk preſented ſimoniacally without his bought to prevent Simony.
36, 37
Knowledge, if diſabled to hold that Advowſon bought, pending a Quare Im-
Living.
44, 46, pedit, if Simony.
38
Simony in taking Orders. 48, 145, 146 To buy the next Prefentation, the Church
In Admiſſion, Inſtitution, &c.
47 being full, to pay the Purchaſe-Mo-
Oath againſt Simony, if to be taken. ney when the Church is void, if Simo-
154, 155 ny.
Forfeiture for Simony. 42, 43, 44, 146 Forfeiture of double Value of the Church
Clerk how difabled, by taking Orders for Simony, how the Value is to be
Simoniacally.
accounted.
44
०००००
IF
309, ec.
34, OC.
1
34, GC.
95, 96
3
.
}
The T A B L E.
96, c.
ven.
375, GC
If the King may preſent upon Simony. Statute miſrecited, makes a Plea vitious.
Page 42, 44, 46, 96
Page 267
Where the King hath loſt his Turn by Statutes which begin with Perſons of an
not preſenting for Simony.
inferior Rank, not to be extended to
Simoniacal Preſentation by a Stranger,
thoſe who are ſuperior. 420, 535,
*the Patron, and not the King ſhall
536, 6.
preſent.
96, 120 Where Matter is prohibited by Statute,
Pardon will not enable a Simoniſt
, but Action lies for doing of it contrary to
diſchargeth the Forfeiture only. 45, the Statute, though no Statute be gi-
C.
341
Nomination in one, Preſentation in ano-
ther, the Simony of the one ſhall not Stat. Tempoje Regis H. 3.
forfüit the Right of the other. 96
Simony diſables the Party from having 9 H. 3. c. 5. Temporalities of Biſhops,
that Living.
44, 45
Gc. how to be uſed in the King's
Simoniſt continues in Poffeffion by Aſſent Hands.
411
of Parties after Judgment againſt him, 9 H. 3. c. 36. No Lands to be given in
how he may be removed.
43
Mortmain.
374, 375, &c.
No Acceſſaries in Simony.
46 52 H. 3. C. 12. Concerning Proceſs in
Simoniacus and Simoniace Promotus. Quare Impedit, &c.
270, 287
42, 45
Statute againſt Simony, extends to Do Stat. Tempoze Regis E. 1.
natives and Churches of the King's
Incumbent.
417 E. I. Of Mortmain.
13 E. 1. C. 1. Of Donis Conditionalibus.
Sundays, ác. (Vide Pag. 637.)
83
spoliation.
13 E. 1. c. 5. Of Advowſons,&c. 123,130,
238, 261, &c. 276, 277, 292, &C. 294
Spoliation, where it lies, and againſt What Perſons relieved by the faid Sta-
whoni.
8, 30, 198
tute.
131, 132, 133
How tried, &c.
6 What Feme Coverts relieved by the faid
Statutes.
Statute.
133
What Heirs relieved by the ſaid Statute,
Statutes to what Time they ſhall relate. and how.
131, 132
59, 516 What Spiritual Perſons relieved by the
No Statute till the King's Aſſent. ibid. ſaid Statute, and how.
134, 135
Statutes to be expounded according to What Reverſioners relieved by the faid
the Meaning of the Law-makers. 99 Statute.
132
Affirmative Statutes take not away the 13 E. 1. C. 32. Of Mortmain.
Common Law.
18413 E. 1. c. 30. Judgment in Quare Im-
Statutes which are to be read in Churches. pedit, &c. to be given by the Juſtices
349 of Niſi Prius. 283, 284, 301
Where the King ſhall be bound by a Sta- 13 E. 1. De Circumſpecte Agatis. 618,
tute, or not. 108, 134, c. 294
OC.
&C. 35 E. 1. Ne Rector proſternat arbores
Statutes which give Recufants Livings in Cæmeterio.
381
to the Univerſities, are private Sta-
tutes.
Stat. Tempoze Regis E. 2.
Stat. 5 Eliz. for tranſlating the Bible in-
to the Welſh Tongue, is a private Sta- 9 E. 2. c.5. No Prohibition where Tithes
tute.
213 are demanded of a new Mill. 566
Private Statutes muſt be pleaded, or the 9 E. 2. c. 8. Clerks in the King's Service
Judges will not take Notice of them. to be diſcharged of Reſidence. 369
376
100
100
4
9 E.
The TABLE.
1.
put forth.
219, &c.
411, &c.
528
575, &c.
9 E. 2. C. 13. Examination of Clerks pre-f15 R. 2. C. 5. Aſſurance of Lands to
ſented to Bencfices, belongcth to the certain Perſons, doc. adjudged Mort-
Spiritual Judge.
Page 212 main.
Pago 376
17 E. 2. c. 8. Lapſe of ſix Months, not t5 R. 2. c. G. In Appropriation of Bene-
to prejudice the King.
108 ficcs, Proviſion to be made for the
17 E. 2. c. 14. The King to have the Poor, and the Vicar.
193
Efcheats of Biſhops Tenants, during
the Vacation.
411
stat. Tempoze Regis H 4.
17 E. 2. C. 15. Advowſons, óç. not to
paſs from the King without ſpecial 2 H. 4.6. 4. Penalty for purchaſing Bulls
Words.
88 to be diſcharged af Tithes. 528
4 H4. E. 1 2. In Appropriation of Bone-
Stat. Tempore Regis E. 3. fices, Proviſion to be made for the
Poor and Vicar.
193, 194
4
E. 3. c. 7. Executors ſhall have an 4 H. 4. C. 22. Remedy, where by the
Action of Treſpaſs for a Wrong done King's Preſentation any Incunabånt is
to their Teftator.
77, 245, 596
14 E. 3. C. 4, 5. How the Temporali-17 H. 4. C. 6. The Penalty of him that
ties of Biſhops ſhall be uſed in the purchaſeth a Bull to be diſcharged of
Time of Vacation.
&c
Tithes.
18 E. 3. f. 3. Prelates, &c. not to pur-
chaſe Lands in Mortmain. 374 Stat. Tempoze Bags H. 5.
18 E. 3. c. 7. No Scire Facias to be d-
warded againſt a. Clerk for Titheş. 1 H. 5. c. 7. Frenchmen, &c. diſabled
to have Benefices in England. 213
25 E. 3. C. 1. The King not to preſent
to a Church in another's Right, by Siat. Tempoze Regis R. 3.
Title fallen in Time of his Progeni-
tors,
115 i R. 3. C. 1. All Acts made by or againſt
25 E. 3. C. 3. Where the King preſent- Ceſtuy que uſe, to be good, G C. 14°
eth to a Benefice in another's Right,
his Title thall be examined.
Stat. Tempoze Regis H. 7.
25 E. 3. c.7. Ordinaries, &c. may coun-
terplead the King's Title. 273, 274, 3 H. 7. c. io. Corts, &c. awarded to
278, 280, 281 the Plaintiff, if the Defendant fue a
25 E. 3. Of Proviſors.
Writ of Error.
305, 307
45. E. 3. C. 3. Prohibition to a Suit for
the Tithes of Silva C'edua.
547 Stat. Tempoze Regis H. 8.
50
E.
3. C. 4. No Prohibition ſhall be
allowed after Conſultation duly grant-16 H. 8. c. 15. Second Letters Patents
ed.
604, or 605 making no Mention of the Firſt, made
50 E. 3; C. 5. None ſhall arreſt Prieſts, void.
222, 225
&c. doing Divine Service. 340 21 H. 8. c. 6. Where Mortuaries ought
to be paid, and for what Rerlons, c.
Stat. Tempoje Regis R. 2.
568, 576, 584
21 H. 8. C. 13. Againſt Non-reſidence.
1 R. 2. C.. 14. In an Action for Goods ta-
362, &c
ken away, the Defendant makes Ti 21. H. 8. c. 13. Spiritual Perſons abrięg-
tle for Tithes.
637 ed from Plurality of Livings, and te-
1 R. 2. c. 15. Penalty for arreſting Prieſts king of Farms, c. 7, 9, 12, 14, & Co
doing Divine Service.
340 357, 358, 6C. 361, 362, c. 367,
13 R. 2. C. 1. The King's Preſentee not How the ſaid Statute is to be expoundea.
to be received, until he hath recover-
7, 9, 13, 20, 21, 23, c.
ed by Law.
218
The
218
1 2
i
The T A B L E.
20
the King.
21
27
2 &
The ſaid Statute is a general Law. Page Perſons feiſed in the Right of their
13, 23 Churches, &c. Page 90, 415, 416, 463
23 H. 8. C. 9. For citing Perſons out of 32 H. 8. 6. 36. Of Fines.
84
the Dioceſe, wherein they inhabit. 611 33 H. 8. c. 27. Leaſes of Hoſpitals, &c.
23 H. 8. C. 10. Feoffments of Lands to good with Conſent of the major Part.
the Uſe of a Church, ſhall be void.
466
377, 378 33 H. 8. c. 28. Non-reſidence of certain
25 H. 8. C. 16. What Perſons may have Chaplains diſpenfcd with. 366
a Chaplain beneficed with Curc. 14, 34 & 35 H. 8. c. 19. Concerning Pay-
15, 21, 363 ment of Penſions, Proxies, &c. 572
25 H. 8. C. 19. Of Eccleſiaſtical Jurif-37 H. 8. c. 2. Of Firſt Fruits, &c. 177
diction, Appeals, c. 16, 17, 56 37 H. 8. C. 4. Chantries, &c. veſted in
25 H. 8. c. 21. Of Revival.
535
26 H. 8. c. 3. For the Payment of Firſt 37 H. 8. c. 21. Concerning the Union
Fruits, OC.
51, 175
of Churches.
180, 181, 184
26 H. 8. c. 14. Of Biſhops Suffragans. 37 H. 8. c. 12. Concerning Payment ºf
Tithes in London. 488, 489, 493
26 H. 8. C. 15. What Duties Spiritual
Men in Richmondſhire ſhall take af-
Stat. Tempoze Regis E. 6.
ter the Deceaſc of
any
Perſon.
571
26 H. 8. c. 17. Fermors of Spiritual Per-
1 E. 6. c. 1. Penalty for unreverent
ſons not to pay Firſt Fruits, &C. 176
ſpeaking againſt the Sacrament, &c.
27 H. 8. c. 8. When Spiritual Perſons
316, 336
Shall not pay Tenths.
176
I E. 6. C. 14. Chauntries given to the
H. 8. c. 1o. Of Uſes.
140, 245
King.
535
27 H. 8. C. 20. Tithes to be paid accord-
3 E. 6. C. 13. In what Manner
ing to the Cuſtom of the Pariſh.
Tithes ought to be paid. 488, 528,
576, 600, 610, 614
H. 8. c. 28. Monaſteries under the
27
536, 560, 564, 565, 571, 586, c.
Value of two hundred Pounds per An- When the faid Parliament commenced.
598, G. 614, 623, 632, &c.
111111, given to the King. 516, 526
28 H. during
587
the Vacation of Benefices, to be reſto_ | 2 & 3 E. 6. c. 20. Concerning the Pay-
red to the next Incumbent. 177, 401,
ment of Tenths.
50, 51
5
&c.
& 6 E. 6. C. 3. Which Days ſhall be
Holy-days, Gc. and if in Force. 323,
When by the ſaid Statute the. Year for
Payment of Firſt Fruits ſhall begin. 5 & 6 E. 6. C. 4. Penalty for ſtriking or
326, 328
401
drawing a Weapon in the Church or
28 H. 8. C. 13. Non-reſidence by reaſon
Church-yard.
of Study in the Univerſities, reſtrained.
346
364
28 H. 8. c. 16. Of Diſpenſations, costat. Tempoje Regis & Kegine
Phil. & Mariæ
17
31 H. 8. C. 13. Monaſteries diſſolved,
and their Lands given to the King. 1 M. C. 3. Penalty for diſturbing Preach-
518, 519, 526, &c. 529, &c. ers, and Miniſters in the Church, 342,
32 H. 8. c. 7. How Tithes ought to be
paid, and how to be recovered, if not| 2 & 3 P. & M. c. 4. Repealing ſeveral
paid.
578, 584, 600 Statutes of H. 8. relating to Firſt
32 H. 8. C. 24. The Lands, &c. of] Fruits, &c.
19, 177
St. John's of Jeruſalemn veſted in the 4 & 5 Phil. & Maria, c. 1. Confirma-
King.
533, 534
tion of Letters Patent, C. 88
32 H. 8. c. 28. Leaſes to be made by
4
Stat.
c.
The T AB L E.
M. C. 4.
Ioa
143
18 Eliz. C. 7. Clerks convict having had
Stat. Tempoze Begine Eliz. their Clergy to be delivered without
Purgation.
Page 54
1 Eliz. C. 1. Ancient Juriſdiâion re-118 Eliz. c. 11. Concerning Leaſes by
ſtored to the Crown, G. 53, 174, Spiritual Perfons. 422, &c. 437, Cie
Page 336, 339 This Statute a general Law. 424
1 Eliz. c. 2. For Uniformity of Prayer, 27 Eliz. c. 5. Judgments to be given af-
&c.
310, &C. 321, 323 ter Verdict, Gc. notwithſtanding any
i Eliz. C. 4. Repealing of 2 & 3 P. & Defect in Proceſs or Plcading. 274
19, 177129 Eliz. c. 6. Certain Aſſurances made
· Eliz. c. 19. Leaſes and other Aſſuran-
by Recufants to be void.
ces of Biſhops Lands reſtrained. 85, 31 Eliz. c. 6. Of Simony, and the Ex-
128, 417 419, 429, 474, 477, 479, poſition of it. 32, 33, 34; to 46, 48,
502, 529
96, O C. 145, 217, 405.
5
Eliz. c. 1. Aſſurance of the Queen's 39 Eliz. c. 7. I. 8. Of Church Leaſes.
Power over all Eſtates.
143, 3372
424
350
5 Eliz. C. 5. Statute for tranſlating the Stat. Tempoze Regis Jac. I.
Bible into the Well Tongue. 212,
213 17ac.i.C.3. Aſſurances made to the King
5 Eliz. C. 5. Preaching, &c. that the of Biſhops Lands, void.
418
eating or forbearing to eat Fiſh is of 3 7ac. 1.c. 1. Concerning the Powder-
Neceſſity.
339
Treaſon.
3.49
13
Eliz. c. 1o. Leafes by Ecclefiaftical 3 Jac. 1. C. 4. For the Diſcovery and
Perſons, and the Expoſition of the Repreſſing of Popiſh Recufants. 100,
fame. 85, 128, 399, 419, GC. 429,
474, 477, 478, 529, 5363 Jac. 1. C. 5. 'To prevent Dangers which
13. Eliz. C. 10. Deeds of Gift, by Spi · may grow from Popiſh Recufants. 98,
ritual Perſons to defraud their Suc-
99
ceſſors of Remedy for Dilapidations. 21 7ac. I. C. 16. Of Limitations. 429,
86, 399
636
13
Eliz. c. 12. Reformation of Diſor-
ders in the Miniſters of the Church. Stat. Tempoje Regis Car. 2.
11,33,51,52,61, 73, 143, 158, 170,335
13 Eliz. C. 20. How long Leaſes of 2 Car. 2. C. 14. For a perpctual Anni-
Eccleſiaſtical Benefices, ſhall continue verſary Thankfgiving on the 29th Day
in Force, &c.
456, &C. 461
330, 349, 350
This Statute a general Law. 460 13 Car. 2. C. 12. Of Eccleſiaſtical Juriſ-
14 Eliz. c. 11. Concerning Leaſes by
diction.
Eccleſiaſtical Perſons of Houſes in Ci- 13 Car. 2. C. 1 2. Concerning the Oath ex
ties, &c. and Leaſes made by them Officio.
154
to their Curates, &c. 421, 423, 426, 14 Car. 2. C. 4. Of the Uniformity of
Úc. 437, Úc. 457, ớc. Prayer. 49, 142, 146, 152, 157, 1709
14 Eliz. c. 11. Concerning Bonds and 171, 207, 174, 310, 314, to 321, 322,
Covenants given to enjoy Leafes, and
335
of Leaſes made by Curates. 458, 46014 Car. 2. C. 25. Rents and Sums of Mo-
Cc. ney granted for Augmentation of poor
The fame is i general Statute.
421 Vicarages, confirmed.
14
Eliz. c. 11. Money received for Di. 15 Car. 2.6. 6. For Explanation of Part
lapidations, how to be employed. 399 of the Act of Uniformity.
209
15 Eliz. C. 12. Of ordaining Prieſts, c. 17. Car. 2. c. 3. For Uniting of Churches
148, 261
in Cities, &c.
182, 185, 379, 39.5
18 Eliz.c.6. Concerning College Leaſes. 22 Car. 2. c. ll. For Rebuilding the
454 City of London.
: 424
Ppppp
22 &
of May.
18
398
1
The TABLE
Page 379
597
368
209
22 & 23 Car. 2. C. 15. For the Settle-17 & 8 W. 3. c. 37. For the Encourage-
ment of the Maintenance of the Par:
ment of charitable Gifts and Diſpoſi-
fons, &c. in the Pariſhes of the City tions (in Mortmain.)
of London, burnt by the late dreadful 8 & 9 W. 3. c. 11. Coſts given in Action
Fire.
Page 495, 496, c. for not ſetting out Tithes.
29 Car. 2. c. 3. Of Frauds and Perjuries. 10 & 11 W. 3. c. 15. For the continuing
432, 4339 440, 442
the Act for the more eaſy Recovery
29 Car. 2. c. 7. For the better Obfer of ſmall Tithes.
609
vation of the Lord's Day. 341
29 Car. 2. c. 8. For Confirming, &c. Stat. Tempoze Anne Regine.
Augmentations made to ſmall Vica-
rages.
395, 396, c. 2 & 3 Anne, c. 2. Firſt Fruits and Tenths
given to the Queen for Augmentation
of
Stat.Tempoze Regis W.tRegine M. poor Livings.
178, 396
2 & 3 Ann. C. 11. For erecting a Cor-
1 W. & M. Seßl. 2. C. 2. Againſt non ob-
poration, and ſettling Tithes, psc. 178
5
Ann&. c. 24. Small Livings augment-
ftante's.
ed by a Diſcharge from Firit Fruits
i IV. & M. Seſi 1. c. 8. For abrogating
the Oaths of Supremacy, &c. and ap-16 Ann. c. 27. Several Benefices diſcharg-
and Tenths.
178, 179, 396
pointing new Oaths. 140, 147, 154, 174
ed of Tithes.
1 W. & M. c. 16. Simoniacal Proniotion
of one Perſon, may not prejudice ano-17 Ann. c. 18. Of preſerving Patrons
ther, cc.
Rights to Advowfons.
97
71, 74, 131
1 W. & M. c. 18. Againſt diſturbing any
12 Ann. Sel. 2. C. 12. For Augmenta-
tion to finall Vicarages, &c.
Congregation in T'ime of Divine Wor-
ſhip.
348
1 W. & M. c. 18. For exempting Prote-
Subſcription. Vide Articles.
ftant Subjects from the Penalties of Suggettion. Vide Prohibition.
certain Laws.
147, 312
i W. & M. Sejl. 1. c. 26. To velt in the Suggeſtion to have a Prohibition, how
Univerſities the Preſentation of Bene and when to be proved, and by what
fices belonging to Perſons refuſing to Witneſſes.
588,&c.
ſubſcribe the Declaration, &c. 102, Six Months for proving a Suggeſtion,
how to be accounted.
603
& 4 TV. & M. and 11 & 12 W. 3. c. 16. Coſts, c. for not proving a Suggeſtion,
For the better Afcertaining the Tithes when to be given, and how. 588
of Hemp and Flax.
553
4 & 5 W. & M. c. 12. Pariſhioners of Summons and severance.
Churches united, to contribute to the
Summons and Severance, where it ſhall
Repairs and Ornaments, &c. of
be.
Churches to which they are united.
253, 265, 304
Judgment for an Incumbent ſevered to
186
be reſtored.
5 & 6 1V. & M. c. 21. Of Duties on Summons in Quare Impedit, how to be
305
Parchment; &C.
58
6 & 7W.3. c. 11. For the more effettual Where a Writ of Deceit lieth upon a
made.
270
Suppreſſing prophane Curſing and
Summons unduly returned, c. ibid.
Swearing.
350, &C.
7 & 8 W. 3. c. 6. For the Recovery of
Sundays. Vide Holydays.
ſmall Tithes.
605, 606; &C.
7 & 8 W. 3. 6. 27. For better Security of
Superſedeas.
his Majeſty's Perfon, c. 104
7 & 8 W. 3: C. 34. That the folemn Af- Writ of Error if Superſedeas to the En-
firmation of Quakers ſhall be accepted quiry of Damages after Judgment in
inſtead of an Oath.
Quare Impedit.
305,
Öc
370
104)
:
If
The TABLE
134
of,
If Writ of Error be Superſedeas to a Writ
awarded to the Biſhop. Page 305,&c.
Tenant in Cail.
Surpluſage.
Tenant in 'Tail, by what Means he may
grant an Advowſon.
Page 83
Pleading an Advowſon granted by Deed, Tenant in Tail grants the next Avoidance
mentioning the Deed is Surpluſage. and dies, if the Grant be void or void-
89
able.
83, 84
Surrender.
Tenant in Tail grants the Nomination of
a Clerk by Fine, if the Iſſue be therc-
Surrenders in Deed, and in Law.
439 by bound
84
Acceptance of a voidable Leafe, Surren- Tenant in Tail
, and his Heir apparent
der of a former good Leaſe. ibid. join in the Grant of an Advowſon. 83
Acceptance of a new Leaſe at a Day to Tenant in Tail grants to the Uſe of him-
come, is a prefent Surrender of the ſelf and Wife, &c: void as to the Wifc.
old Leaſe.
439
ibid.
An Infant, if he may ſurrender. 439, Tenants in Tail, how relieved by the
440
Statute Weſt: 2. 6. 5.
Acceptance of a leſſer Term, Surrender
of a greater.
439 Tenths. Vide firct fruits.
Lefíce of an Advowfon accepts a Preſen-
tation from his Leſſor; is a Surrender Tenths; by what Law payable, how to
of his 'Term.
107 be demanded, and by whom. 51, 52
Leſſee of an Advowſon grants the next Certificate for Non-payment of Tenths,
Avoidance, if any happen during the how to be made.
51
Tern, and then ſurrenders. 85 A yearly Tenth of all Spiritual Livings
Surrender to an Eccleſiaſtical Perſon, given to the King.
175
whereby a new Leaſe is to be made, Fermors not to pay any Firſt Fruits of
ought not to be conditional. 439, 440 the Tenths:
176
Spiritual Perſons not to pay any 'Tenth
the fame Year they pay the Firſt
Fruits.
ibid.
Tares. Vide Encuinbents. Tenthis may be deducted out of the Firſt
Fruits.
176
Tenants in common. Remedy where a Succeſſor pays for his
Predeceffor.
ibid.
TEnant
Enants in Common of an Advow- The King's 'Tenths reſerved by 37 H. 8.
177
Tenants in Common of a Seat in Grants of Tenths to the Univerſities con-
a Church
387
firmed.
178
Tenants in Common of a Seat, cannot Archbiſhop of Wells charged with Tcnths.
preſcribe jointly in an Action concern-
ibid.
ibid. Hoſpitals and Schools diſcharged of
Preſentation by one, Tenant in Com Tenths.
ibid.
mon, or Jointenant alone, if it Thall Tenth veſted in a Corporation of the
put the others out of Poffefſion. I 23, Bounty of Queen Anne.
178
I 24, OC. Eccleſiaſtical Benefices diſcharged there-
Compoſition to preſent, how to be made
ibid.
by Tenants in Conimon. 72, &c. Tenths formerly granted in Perpetuity
not diſcharged.
179
Tenant by the Turteſy. Parfon in by wrong, if liable to pay
Tenths, &c.
Husband ſhall be. Tenant by the Curtefy Tenths paid into the Exchequer after be-
of an Advowfon.
72.75
ing demanded by the Biſhop: 51, &c.
3
85,86
C. 21.
ing it.
404, 406
1
Tenures.
The TABLE
1
Portion of Tithes, what. Page 43 t, SII
Tenures.
Deciman Garbam and Decimas Gar-
barum, the Difference.
509
Advowſons in groſs, if held by Tenure. Preſcription to have Decimanz Garbam,
Page 772, 75 no Diſcharge of Tithes.
ibid.
Tenure in Frankalmoign, and by Di- Tithes of Cattle kept on Commons
vine Service, the Difference. 333, 334
where the Pariſh is not certainly
He that holds by Divine Service, ſhall known, to whom to be paid. 507,
do Fealty.
ibid.
560, &c.
Ancient Tenures by Divine Service fu- Tithes of Grain, to be intended of
perſtitious, now to be performed ac Corn, not of Seeds.
635
cording to the Book of Common Where the Parſon ſhall pay Tithe to
Prayer.
ibid. the Vicar, or the Vicar to the Parfon.
Statutes for Uniformity take not away
505
ancient Tenures.
ibid. Where Executors of Parſon, or his Lef-
One bound to ſay Divine Service in a fee, Tall pay Tithe for Corn fown
Chapel ruinated, excufed till the Cha-
upon the Glebe.
504, 505
pel be repaired.
ibid. Parfon lets his Rectory, reſerving the
Ali Lands and Advowfons held of the Glebe, he ſhall pay Tithc to his Lef-
King.
190 fee.
504, 505
Teſtimonial.
Parfon fells the Corn fown on the
Glebe, the Vendee ſhall pay Tithe.
Teſtimonial of Inſtitution, &c. if ne-
505
ccſſary.
155 Tithe of two Years not to be accounted
Teſtimonial that an Incumbent per together.
554
forincd all Things required by Law. Leaſe or Grant of Land free from all
168, &c.
Exactions, will not diſcharge Tithes.
Biſhop not to refufe a Clerk for Want
504, 506
of Teſtimonials.
212 Where the Leſſee of Land diſcharged of
Tithes, ſhall pay Tithes or not. 544,
Tityes.
505, 527, 533, C.
Tithes in Lay-Hands is Lay-Fee. 591
When eſtabliſhed hcre in England. 4 Tithes fevered, are a Lay-Chattel. 505,
Tithes charged with Payment of Firſt
539, 540, 589, c. 591, 632
Fruits.
177 Fine may be levied of Tithes. 580
Tithes of what 'Things payable. 486, Tithes, if grantable without Deed. 429
dc. 500,&c. 538 Tithes de communi Jure belong to the
Tithes, in what Manner they ought to Parfon.
391, 505
be paid.
541, 554, Sc. Tithes diſtrained Damage-feaſant for
Cuſtom in the Manner of Tithing to be being ſuffered to remain too long on
obferved.
540, 545, 554 the Land, after ſet out.
591
Who capable of Tithes at Common Tithes not Parcel or appendant to a Ma-
Law.
503, 505, 534, &c.
509
Tithes to be paid as they uſually have The Owner of Tithes bound to carry
been paid, &c.
528, 537 them away in reaſonable Time. 588,
Tithes not iſſuing out of Lands. 503, 505
591
Double Tithe, what ſhall be ſo ſaid. Who to take Care of Tithes after fet
542, 0.555, 562 forth.
540, 637, &c.
Eccleſia decimas ſolvere Ecclefia non de- Corn carried away by a Stranger, Tithe
bet.
505 not ſet forth.
589, 590, 632
Glebe Land in another Pariſh, ſhall pay Non-paynient, Evidence of a Diſcharge
Tithe.
ibid, cc. of Tithes.
519, 527, 637
Parfon of one Pariſh hath Tithes with Diſcharge of Tithes, intended perſonal,
in another Pariſh.
505 not real:
517
nor.
3
Lay-
The TABLE.
593, &c.
538
392, &c.
be paid.
.
Lay-Perſons, how capable of Tithes. , Two Tenants in Common, one ſets
Page 507, 509 forth the Tithes, the other carries
What Remedy for Tithes detained, them away, againſt whom the Action
and carried away after ſet forth. ſhall be brought. Page 633, 634
578, 589, c. 632, c. Fraud to deceive the Parfon of his
Action of Treſpaſs or Detinue lies for Tithes due by Cuſtom, what Reme-
Tithes taken away after ſet out, dy.
540, 555, 593, 595
Action of Account contra. 589,590 What Damages to be recovered in the
Tithes not to be recovered by Action, Spiritual Court in a Suit for Tithes.
but a Recompence for them only.
513, 514, 633 A Parſon, &c. may have his Action of
One poſſeſſed of Tithes by ſeveral Ti the Cafe, if he be diſturbed to order
tles, may bring one Action for them. his Tithes after ſet forth.
545
632, Gr. No Action for ſmall or mix'd Tithes
If Joint-tenant and 'Tenants in Common upon the Statute of 2 E. 6. 587,
muſt join in Action for not ſetting
639
forth Titlics.
633 No Tithes of Marriage-Goods in Wales.
An Action of Ejectione Firme may be
562
brought of Tithes. 680, 390, 635, The ſeveral Sorts of Tithes.
636, &c. Predial Tithes what. 538, 545, 551
Tithes, by whom to be ſet out. 540, Mix'd Tithes, what.
538, 554, cc.
586,587 Sniall Tithes, what ſhall be ſo account-
What ſhall be a ſufficient ſetting forth
ed.
of Tithes.
587, 588, 632, c. Perſonal Tithes, what, and by whom to
What Power the Owner hath to fit out
538, 564
his Tithes, or carry them away, C. Payment of 'Tithes to the Rector, no
588, 589 Diſcharge againſt the Vicar. SII
Notice of the ſetting forth of Tithes, By what Means Lands may be dif-
if neceſſary.
charged of 'Tithes.
500, C. 516
Eccleſiaſtical Courts have the proper Ju- Diſcharge of Tithes is contrary to
riſdiction of Tithes.
595, 598, 611 common Right, and
and to be taken
In the Court of what Ordinary, &c. ſtrict.
527
Tithes may be fued for. 610 Real Compoſition for the Diſcliarge of
Lay-Perſons could not ſue in the Ec Tithcs, what, now made, and who
clcfiaftical Court for Tithes till aid bound thereby. 500, 508, 509, 517
ed by Statute.
529
When "Tithes may be ſued for in the What Orders privileged from the Pay-
Exchequer, and what Value to be ment of Tithes.
532
there recovered. 593, 494, GC. What Bulls of the Popes may be fufta-
Tithes ſued for in Chancery. 595 cient to diſcharge Tithes. 579
What Remedy to compel Titles to be To what Abbey Lands the Statute of
ſet forth according to Cuſtom. 539,
H. 8. doth extend.
516, GC.
540 | Abbey-Lands how anciently diſcharged
Action on the Statute of 2 & 3 E. 6. of Tithes, and how at this Day. 515,
for not ſetting forth of Tithes is
&c.
perſonal grounded on the Contempt. Privilege of Abbics to be diſcharged of
596, 6 3 3, ớc. Tithes is perſonal.
515, 516
If Action for not ſetting out Tithes lies Privilege of Abbies to be diſcharged of
for or againſt Executors.
597 the Payment of Tithes, not to be
Action for not ſetting out Tithes lies waived by the Abbots, &c. 532, 6c.
not by Juſticies.
595 Privilege of Abbies to be diſcharged of
One hindered of his Way to carry his Tithes, how veſted in the King. 515
Tithes, what Remedy. 588, 589
Q 9999
Pre-
·
591
527, 578, 611
31
i
The AB L E.
228
Preſcription that Fermors and Occu-Modus, when fuable for in the Spiritual
piers, &c. ſhall be diſcharged of Courts. Page 611,612, 614, 622, C.
Tithes, to whom it ſhall extend. 527, Modus, that the Inhabitants ſhall
pay
Page 533, EC.
the tenth Part of the Value of their
Preſcription to pay leſs than the whole Land and Houfes, good. 488
Tithes
, when good or not. 540, 565 Modus to pay ſo much for every Day's
Preſcription for Diſcharge of Tithes, to Plowing, if good.
ibid.
what Tithes it ſhalt extend. 510, Modus to pay Part in Kind only, when
511, 513 good.
540
Lord of a Manor preſcribes to have Modus for all the Demeſnes of a Ma-
'Tithes.
508, 509 nor, if a Mill erected, thereupon ſhall
Prcfcription for Diſcharge of a Garden be thereby diſcharged.
567
which is inlarged.
552 Barren Land, how diſcharged of Tithes,
Biſhop preſcribes to have the Tithes of and what ſhall be ſaid ſuch barren
his Copyholders.
503
Land.
536
Preſcription to ſet forth Tithes, fine vi- Modus for a Park which is difparked, if
Su vel tactu of the Parfon, if good. Tithes ſhall be paid.
513
557 Tithes of Lands lying fallow. 541
Preſcription to be diſcharged of Tithe-Lands in the King's Hands pay no Tithes.
wool.
ibid.
503, 506, 534
Cuſtom, &c. de non decimando, where Tithes of Lands not within
any Pariſh
good, and by whom. 502, 503, 506, belong to the King.
526, 544, c. Land diſcharged of Tithes by Preſcrip-
Two Hundreds preſcribe in Non deci tion in the King's Hand's, the Pre-
mando, if good.
568, c. ſcription is deſtroyed by granting them
Modus decimandi, what. 508, 509 out of the Crown.
534
Every Modus ſuppoſeth an original A- The King's Leſſee, or Grantee, &c.
Gc..
greement.
ſhall be diſcharged. 503, 507, 534
Modus, how loft, or deſtroyed. 503, 512,What Preſcription ſhall diſcharge the
King's Farmers.
507
Things not Tithable given in Diſcharge What Unity of Poſſeſſion, etc. fufficient
of Tithes.
513, 514 to diſcharge Payment of Tithes. 530
A Modus ought to be the Benefit of Unity of Poſſeſſion in Diſcharge of
hini who has the Right of Tithes. Tithes, how to be pleaded. ibid.
507, &C. 519,538, &c. 543, &c. What Pleas may be uſed againſt Uni-
What ſhall be a fufficient Conſideration ty of Poſſeſſion in Diſcharge of
for a Modus.
545, 555, 559, 562 Tithes.
530, 531
Modus in Diſcharge of Tithe-Milk. 555 Houſes, if they ought to pay Tithes,
No Modus for Tithe-Hops. 552
486, ớc.
Modus in Diſcharge of Agiſtment. 558, What Houſes in London are diſcharged
Oc. of Tithes.
Modus for the 'Tithe of Colts, Cålves, Tithes in London, how paid, and how
&c.
554, 555
to be recovered.
489, &c.
Modus for Houſes, how to be intended. Tithe of Mills, what Sort of Tithe it
487, 488 is, and how to be paid.
566
Modus to pay fo much by every Oc-For what Mills Tithes ſhall be paid.
cupier, or the Inhabitant of an Houſe,
566
not good.
ibid. Modus for all Mills erected, or to be e-
Cuſtom for a Baker to be Tithe-free for rected.
567, 568
all Corn ground for the Uſe of his Tithe of Herbs, &c. in a Garden. 552
Family.
1567, 568 No Tithe of Quarries of Stone, &c.
Modus Decimandi
, if allowable in the
486
Spiritual Courts.
567, 568
568
&c. 544
492, OC
1
3
Lime
The TABLE
545, &c.
546, &c.
Lime not titheable but by Cuſtom. [Tithe of the Fruit of Trees no Dif-
Page 486 charge of the Soil. Page 551, 552
Brick not titheable.
ibid. Tithe of Hops, how to be paid.
552
Tithe of Eggs.
563 Wood titheable by Cuſtom only. 551
Tithe of Pidgeons.
563, &C. Tithe of Wood, when firſt paid. ibid.
Rabbets titheable only by Cuſtom. 614 Tithe of Wood, how to be paid. 545
Sheep, &c. eaten in the Family, if For what Wood Tithes are payable.
titheable.
557, 558, 564
545, 547
Tithe of Beaſts feræ naturæ. 563, 6C. Loppings of Trees when titheable. 549,
Tithe of Fiſh taken in the Sea, &c.
565 Silva Cadua, what.
547
Fiſh titheable only by Cuſtom. 565, Wood to burn Brick for Repairing or
&c. Inlargement of an Houſe, &c. if tithe-
Tithe of Colts, Calves, how to be paid. abic.
546, 547
554, &c. Where Wood not Titheable ihall pri-
Tithe-Milk, how to be paid. 555 vilege Wood which ought to pay
Tithe of Hemp and Flax how to be Tithes.
549
paid.
553 Tithe of the Fruit of Trees which are
Tithe of Bces and Honey. ibid. after cut down, no Tithes to be paid
'rithe of Fowls.
563 for the 'Trees.
552
Tithe of Heath, Turf and Brooni. 486 Wood cut for Hedge or Fucl, &c. if
545
titheable.
Tithe of green Tares, and Corn fown Wood cut to make Hop-poles, if tithe-
on Head-Lands cut for Cattle, &c. able.
538, Bc. Preſcription in Diſcharge of the 'Tithes
Tithes for Agiſtment of Cattle, and of Wood.
546, 547, 550
by whom payable. 543; 558, 561
Cattle for the Pail and Plow, oc. dif-
Traverſe.
charged of Tithes.
559, 560
Tithes of Gueſts Horſes agiſted by Inn-Where a Traverſe may be taken upon a
keepers.
543; 561, 562 Traverſe.
267
Servants in Husbandry to pay no Tithes. The Plaintiff cannot forſake his own
564, &C. Title, and traverſe the Title made
Tithe of Rapc, Saffron, c. 12, 39 by the Defendant.
ibid.
552 Where the King may forſake his own
Tithe of Clover-Grafs, who ſhall have Title, and traverſe the Title of the
it.
393
Defendant.
ibid.
Tithe of Hay cut to feed Deer. 539 Of whoſe Preſentation the Incumbent is
Tithe of Stubble, or the After-crop, in, if traverſable.
280
or for Cattle fed thereon. 541, 542 Cauſe of refuſing a Clerk by the Bi-
Tithes, if payable of Rakings.
540
ſhop, traverſable.
273 Op 274
Cattle fed in divers Pariſhes, how tithc- Suggeſtion of Plea refuſed in the Spiri-
able.
561 tual Court, if traverſable. 631, &c.
Tithes of the Profits and Gain of an Certificate for Non-payment of Tenths,
Inn-keeper.
561, 565
if traverſable.
&c.
Tithe de Animalibus utilibus o inuti- Several Defendants in Quare Impedit,
libus.
every one of them may traverſe, or
Tithe of a new Seed not before known, confefs and avoid the Plaintiff's Ti-
who to have it.
392, 393, 552 tle.
258
Tithe of Wool, how to be paid. 556
Trees.
Tithe paid of the Wool of Sheep, no
Tithe for their Herbage. 557 Trees in Church-yard, by, whom to be
Tithe. of the Fruit of Trees planted in cut, and when, and in whom is the
a Nurſery
550 Property
380, 381, 391
Trial.
556
The TABLE.
Page 194
200
197
194
Who Patron of the Vicarage of com-
Trial. Vide Courts.
mon Right.
Vicarage appendant to the Parſonage.
Church full or not, or void or not, how
67
to be tried.
Page 234 Vicar can claim nothing but according
Cauſe of Refuſal of a Clerk by the to the Endowment, or by Preſcrip-
Biſhop, how to be tried. 234, 273,
tion.
gos
Óc. Vicarage endowed without the King's
Ability or Diſability of a Clerk, how Aſſent.
194
to be tried.
234 If Vicarage be united to the Parſonage
Unions ſhall be deterniined in the Spi- by Preſentation. 197, 198, 251
ritual Court.
186 Vicarage, how to be reſtored to the
Divine Service performed, or not, how Parſonage.
196, &c.
to be tricd.
334 Poverty of the Parfonage, Reaſon to
Matters concerning the Endowment of reſtore the Vicarage, &c.
Vicarages between Parfon and Vicar, Charge on Vicarage to be recompenf d
triable in Spiritual Court. 195, 200 by the Parſonage.
ibid.
Barren Land or not, where triable. 538 Biſhop's Power to augmcnt, &c. the
Church or Chapel, how to be tried. Vicaragc.
200, 292
252 Vicarage reſtored before the Statutes of
Diſſolutions, how made good to the
King, and his Patentees, by thoſe
Statutes.
Vicarage united to another Church.
Tariance.
Endowment de decimis Garbarılm, what
HAT ſhall be ſaid a Variance ſhall paſs thereby.
393
from the Name of a Corpora- | Vicar endowed by the Word Alteragi-
tion.
474, 475
Where a Prohibition may be granted, Vicar endowed of white Tithes
.
395
notwithſtanding a Variance between Preſcription by Vicar to have certain
the Suggeſtion and the Libel. 598, Tithes, doth ſuppoſe an Endowment.
599
391, 392, 393
A Lcafe upon Condition, and a Leafe Vicar ſhall not have Tithes of the
abſolute, or Leafe for 21 Years, and Parſon's Globe, without ſpecial En-
a Leaſe for 21 Years from a D:ay to
dowment.
395
come, not intended the fame Leaſe. Tithe of new Sced not before known,
435
if the Parſon or Vicar ſhall have it.
393, 394
Aicarage.
Lands uſually fowed with Corn, is
ſowed with Saffron, Woad, &c. if the
Vicars in Cathedral Churches not pro Tithes belong to the Parfon or Vi-
perly Vicars.
392
Vicarage, how created and endowed. Parſon leaſeth his Parſonage, if the Ad-
194 vowſon of the Vicarage is leaſed
Vicarage not to be created without Af thereby.
67
fent of the Patron.
ibid. Compoſition between Parſon and Vi-
Vicarage derived from the Parſonage. car, and Endowments of Vicarage,
67 how to be expounded. 392, 393
What Intereſt the Vicar hath in the Conſtant Ufage by the Vicar to have
Church.
391
ſuch certain Tithes: Evidence of an
If the Vicar, or Parfon, hath the Cure Endowment of them.
291, 392
of Souls.
195, 312
Endow-
3:
WH
11111.
394, C.
366
car.
}
The T A B L E.
&c.
I 2
Endowment of Vicarages to be ex-¡Union of the Profits of a Prebend, doth
pounded by the Judges of the Com not unite the Office, &c. Page 186.
mon Law.
Page 394 What Clerk capable of Churches 1-
Matters concerning the Endowment of nited by Virtue of the Stat: 17 Car.
Vicarages between Parſon and Vis
2. 6. 3.
183, 184
car, may
be tried in the Spiritual Advowſon of the Church united, how
Court.
195, 196, 200
it is affected by the Union.. ; 185, 186,
Vicar, à Corporation by the Common
251
Law.
372 Two Churches Appendant, or the one
Augmentations of Vicarages confirmed Appendant, the other in Grofs, uni-
and continued, and Remedy gived to ted, how the Advowfons ſhall be
recover the fame, by Stat. 29 Car. 2. ſaid to be.
66, 69
396, 397 Pariſhioners of the Church united, to
What Augmentations of Vicarages are contribute to Repairs and Ornament's
confirmed by Stat. 29. Car. 2. 396, of the Church to which the Union
is made.
186, &c.
Grants for Augmentation of Vicarages, Penalty for obtaining Unions contrary
to be regiſtred and made as Records. to Law.
ibid. Unions to be determined in the Spiri-
tual Court.
186
@i laica removenda.
Unity of početion.
Vi laica removenda, where it lies, how
to be ſued out, to whom to be di- Unity of Poſſeſſion, Gce what. 73, 529
rected, and what may be done there- Unity of Poffeffion in Diſcharge of
uponi,
43, 44, 308
Tithes, how to be pleaded. 530, &c.
What Unity in the Abbots, GC. ſujfi-
Unions.
cient to diſcharge the Payment of
Tithes.
ibid.
Unions of Churches, how to be made. Unity of Poſſeſſion doth not extinguiſh
180, 181, 183, 184, c. Tithes.
518, 529, 531
What Churches may be united, and by
whom.
183, 184
ünib räties.
Union of a Church full, may be by
185 To what Livings of Recufants, &c. the
The Effect of Union of Churches. 181, Univerſities ſhall preferit.
100, 101
OC. What Intereſt the Univerſities have in
Churches in Citics, c. how to be u Rccufants Livings.
100, IOI.
nited.
182 What Grants of Advowſons by Recu-
Who ought to preſent upon Unions. fants, &c. ſhall bind the Univerſities.
183
toi, &c.
Unions of Churches, how to be made When a Preſentation ſhall be ſaid veſt-
void by the Pariſhioners. 181 ed in the Univerſities,
Unions made upon falſe Surmiſes, if Preſentation veſted in the Univerſities,
void.
184 not to be deveſted by Conformity, &c.
Unions not reſtrained, but limited by
ibid.
the Stat. 37 H. 8. c. 21. ibid. What Allegations to be made by the
Biſhop cannot unite a Church of his Univerſities in a Quare Impedit. por
own Patronage, without Conſent of Notice of the Avoidance of Livings of
the Dean and Chapter. 185,3c. Recuſants, &c. how to be given to
Chapel united to a College. 186 the Univerſities, and within what
Church united to a Prebend in ano Time.
1.3
ther Dioceſe.
186, 469
Rrrrr
Lecturc-
apt Words
IOO
The T A B L E.
14 Car. 2.
28, 29
458,
CC. 479
6
Lecture-Sermons in the Univerſities, ex- Church void by the Act of the Party.
cepted from the Penalty of the Stat.
Page 5, 6
Page 208, c. Lay-Man admitted to a Benefice, if
void. Page 15, 33, 52, 53, 147
Wotdance. Vide avoidance. Incumbent made Bifhop in Ireland
makes his Benefice void; Suffragan,
Aoid and Goldable.
or Titular Biſhop, contra.
Incumbent extolling foreign Juriſdiction
Bonds, Covenants, and Judgments for makes his Living void.
336, &c.
Enjoyment of Leaſes, Gc. made by Preſentative, where it ſhall be void.
Eccleſiaſtical Perfons void.
216, Uc.
459, 460 Inſtitution, &c. upon a void Préſenta-
What Leafes, &c. ſhall be faid void, tion, if void.
46, 217, &c.
or voidable. 85, 86, 477, &c. Not reading or fubſcribing the Articles
,
Leaſe void cannot be made good. 4742 how it makes Benefice void. 11, 50,
152
No Remedy for Rent reſerved upon a Church, when void by Celion, and to
void Leaſe.
479
what Purpoſes. 5, 6, 9, 24, 27, 28,
Leaſes and Grants, fc. to Spiritual
404
Pcrfons made void. 85, 86, 357) He that hath one Living accepts a
By what Means à Leaſe, &c. voidable ſecond, and contends to keep both,
may be made abfolutely void, or both ſhall be void.
5,6
good.
478, 479 He that hath a Benefice under the Vau
Where an Eſtate ſhall be ſaid to be lue of 8 l. per Annum, accepts a fe-
abſolutely made void or not. 469, cond, to what Purpoſes the firſt is
470, 478, c.
void.
The King cannot affirm or make void a Voidance by accepting a ſecond Living,
Leaſe to bind the ſucceeding Bifhop. to what Time it fhall relate. 6,7
85, 86 Firſt Living, if void by Inſtitution into
What Perſons ſhall take Advantage of a fecond.
ibid.
a voidable Leaſe.
479 Where Deprivation is neceſſary to make
Tenant in Tail grants the next Avoid an Avoidance.
5, 6, 51, 52
ance, and dies, the Gránt is void. To what Purpoſe a Church is void by
83, 84 Deprivation before Notice given. 404,
Leaſe to be void on Non-paynient of
oc.
Rent, the Rent ought to be demand- Parfon incapable inſtituted, c. if the
ed,
482 Church be void before Deprivation.
Freehold Eſtate not void before Entry.
51, 52
480 When a Church ſhall be faid to be-
In what Reſpect, and againſt what come void by Deprivation or not. 5,
Perſons, a Grant, or Leafe, &c. ſhall
be faid void.
477, 498, &c. Sixty Days Abſence makes Livings of
Church void by taking Orders fimonia Kecufants preſented to by the Uni-
cally.
119, 146
verſities, void.
103
To what Purpoſes a Church is void by Church made void by Statute, void to
Simiony. 11, 33, 73, 140, 217, 405, 6C all Purpoſes. 52, 53, 403 or 404
To what Purpoſes a Church is void by Church void by not paying the Tenths.
Judgment in a Quare Impedit. 289
51, 52
Ofurpation.
To what Purpoſes a Church is void by
Canon. 11, 13, 121, 404, GC. The Nature and Effect of an Uſurpa-
By what Means Churches become void. tion. See Chap. 13. Pag. 119, C.
4, 5 What Eſtate is gained thereby. 119,
Church void by the Art of God ibid.
123
Uſur-
6,52, &c.
295, C.
4
Tbe TABLE
125, c.
I 20
ter:
I 26
139, &c.
120
84, c.
127
Uſurpation that makes a Plenarty. 1223 Prefentation by Colour of a Grant de-
Page 244 termined, makes an Ufurpation. Page
No Uſurpation till Inſtitution had. 122
Preſentation by Simony, makes no Ufur- Uſurpation upon the Grantee of the
pation.
three next "Avoidances, the Effect of
No Uſurpation by prefenting to a Do itai
125
native.
120, 121 Superinftitution makes no Uſurpation.
No Ufurpation upon a Church appro-
405, 407
priate.
120,0. 143, GC. Uſurpation by one Coparcener upon the
By what Means a Right gained by U other.
I 23, 124
furpation may be regained. 129, &c. Ufurpation upon the Turn of one con
What Acts will make an Uſurpation. parcener, is no Ufurpation upon the
119, &C. 220, 221, 267, 268 reft.
ibid.
If any Uſurpation puts the King out of Ufurpation after Judgment in a Writ
Poffefſion.
126, G. 276 of Right.
125
What Preſentations by the King make if the Dean may uſurp upon the Chap-
an Ufurpation. 47, 70, 71, 120,
1 26, &C. 219 Husband and Wife may prefent jointly,
Where an Uſurpation by the King fhall having no Right, no Uſurpation by
be avoided.
the Wife.
Uſurpation made upon him who hath The Effct of an Uſurpation upon a
the Nomination, by him who hath the Biſhop or other Eccleſiaſtical Perfon. .
Prefentation.
Rightful Patron preſenting after Uſur-Notice of a Church being void, not
pation, and Plenarty of Six Months, neceſſary to make an Uſurpation.
is an Uſurper.
135
109, 121, c. 130
Wrongful Collation, to what Purpoſes What Perſons relieved
upon Uſurpation,
it is an Uſurpation. 115, 116, 119,
by the Statute of Weſtm. 2. &C. 130,
149
031, ớc. 276. 277
Ufurpation by the Conufor of a Fine How the Statute of Weſtm. 2. relieves
before the Finé executed. 125, &c. againft Uſurpations. 3 28, 130, &c.
What Preſentations will put the right-Purchafer by Uſurpation and Plenarty
ful Patron out of Poſſeſſion. 119, &c. of Six Months, is without Remedy.
131, 132, 133, 138, 243
Leffor ufurps upon his Leſſce, what is Biſhop by denying or delaying a Jure
gained thereby.
Patronatus, is a Diſturber.
Nó Remedy at Common Law after If Uſurpation upon Recufants Livings
Church full by Ufarpation, but by
bind the Univerſities.
99, OC.
Writ of Right. 131, 135, 136, &c. Uſurpation upon a Benefice granted in
Ufurpation of Vicarage, not avoided by Mortmain.
123
avoiding Ufurpation upon the Par-
fonage.
No Ulutpation but where the Church
was void at the Time of the Pre-
ſentation made.
120, 121
Wales.
One preſents to his own Church as
Proctor of Attorney to another
Pear
: Bible and common
Prayer-Book to be
an .
.
373, 374
Uſurpation by preſenting in the Right or Common Prayer in Vales to be said in
Name of another Perfon.
the Welſh Tougue.
32:0
Leſſee preſented by the Leſſor to the Quare Impedit for a Church in Wales,
Church leafed, if an Uſurpation. 138 where to be brought.
263
Cauſes
276, ớc.
124, ớc.
261
I 36, ớc.
107, 120
120, c.
r
The TABLE.
1
1
Cauſes of Refuſal to admit a Clerk to a
Church in Wales. Page 212, doo
Writ to the Bichop.
1
1
Bc. 287
vi
277
may
Warranty.
When a Writ to the Biſhop after Reco-
very in Quare Impedit, &c. ſhall be
Warranty collateral binds the Iſſue in
awarded. Page 283, 284, 293, 295,&c.
Tail.
84 For whom to be awarded.
284, &c.
To whom it ſhall be directed. 296, 297,
quaite.
304
At what Time it ſhall be granted. 271,
Leaſes diſpuniſhable of Waſte. 453
Attornment with Proteſtation to ſave Where the Plaintiff ſhall have a Writ to
the Privilege not to be puniſhed for
the Biſhop. 258, 260, 271, c. 276
Waſtc.
259 Where the Defendant ſhall have it.
Leaſes diſpuniſhable of Waſte not to be
made by Eccleſiaſtical Perſons, Col-Where both Plaintiff and Defendant
leges, &c.
452, 453
have Writ to the Biſhop. 258, 277,
Prohibition to hinder Waſte. 43, 452,
286, 287, Gc.
&c. Where ncither Plaintiff or Defendant
Waſte not to be committed on Biſhops ſhall have it.
288
Temporalities in Time of Vacation. Who to be removed by it.
105, 112,
4111 258, 259, c. 290, (C. 299, 300,
301, &c.
Wills and Teftaments. Writ to the Biſhop not to be awarded for
a Stranger.
284, 288, 289
Laſt Wills and Teſtaments to be taken If a Writ may be directed to Biſhop
according to the Intents of the Par-
without Title made. 258, 277, C.
ties.
100
284, 285, &c.
Incumbents may by Will diſpoſe of Corn If the plaintiff may have both a Writ to
growing by them fowed.
403 the Biſhop and Damages, or either
One may appoint by Will what Perfon at Election.
292, 293
his Executors ſhall preſent to a void Writ to the Biſhop, if returnable. 267,
Church.
298, 299
Incumbent having the Advowſon may What the Biſhop ought to do upon a
deviſe the ſame, or the next Void Writ to him directed to admit, and
95, 96
what Return to ſuch Writ Thall be
good.
299
Curit of Right of Adbowſon.
Writ directed to a wrong Perſon, if it
makes the Judgment erroneous. 298
Writ of Right of Advowfon, where to Where the Writ to the Biſhop ſhall not
be brought, and of what Seiſin. 136, have the Clauſe, Nön Obſtante Re-
137 clamation', &c.
Trial in a Writ of Right.
ibid. Iſſue found againſt the King, yet a Writ
Writ of Right de medietate Advocatio to the Biſhop awarded for him.
303
251, G. Writ to the Biſhop awarded for the
Writ of Right by him who hath the No King, being no Party to the Sụit. 279
mination or Preſentation only. 91,
288
&c. If the Patron may have a Writ to the
The Lord in Mortmain cannot have a
Biſhop, where his Clerk pleads him-
Writ of Right of Advowfon. I 23 ſelf to be iriducted, Úc.
279
Judgment in a Writ of Right of Advow- Donatiye recovered, to whom the Writ
fon, how it binds.
125, 126
for Poſſeſſion ſhall be directed,
297
In
95, G. 226
ance, by Will.
259, 260
nis, &c.
4
The T A B L E.
i
In Quare Impedit Plaintiff hath Judg a Sicut alias awarded. 299, 301, 302,
ment againſt ſome of the Defendants,
303
and barred as to the Reft, no Writ to. If the Juſtices of the Seſſions in IVales
the Biſhop
286, 287 may ſend a Writ to the Biſhop to ad-
Writ awarded to the Guardian of the mit, &c.
263, 264
Spiritualities, and a Biſhop is made What Remedy for a Clerk, after Infti-
before the ſame executed. 298 tution, &c. upon a Writ to the Biſhop,
Where the plaintiff after Judgment may where another Incumbent keeps the
prefent without any Writ to the Bi Poffeffion.
300
Thop.
296 Where Writ to the Biſhop fhall be award-
Where Writ to the Biſhop ſhall be a ed upon Nonfuit, Abatement, &c. 284
warded with a Celet Executio. 272, Two Defendants, one makes Default at
273, 276, 283 the grand Diſtreſs, Writ ſhall be a-
Writ once directed to the Metropolitan warded for the Plaintiff by the Sta-
ſhall not after go to the immediate tute of Marlbridge.
287
Ordinary.
297 | No Writ to the Biſhop till Writ of En-
Biſhop making an ill Return, or no Re quiry of Damages to be returned, un-
turn of the Writ, ſhall be fined, and leſs the Damages be releaſed. ibid.
i
FINI S.
}
-
Ě Ř Ř A T A.
PAGE 2. for Church tead Churches;.P. 5 dele yet; p. iv. for without Cure read with Cure ;
p. 11. for c. El. read Eliz. cap. p. 12 in Margin, for Ed. 1. read. Ed. 3. and for H. 1. read H. 8.
p. 14. in Margin, for 12 H. 1. read 21 H. 8. p. 16. for was actually, read was not actually; and for
H. ci read H. 8. c. p. 20. for reſtraind by read reſtrain'd thereby ; p. 26. for me what read me in
what ; and for this read his; p. 32. after and Note, add by 31 El. C. 6. p. 31. after Day add by
13 El. č. 12. p. 34. after einasted add by 31 El. C. 6. p. 52. for 13. C. read 13 El. C. p. 56. after
3 & 4 El. dele Cauſes, and for Ecclefiaftical read of Eccleſiaſtical Cauſes; p. 58. for his Court read
ibis Court; p. 59. after For lin. 1. add Tho'. p. 65. for Demenſės read Demeans ; p. 66. for in the
County read in one County ; p. 67. for Appellant read Appendant ; p. 97. for Ci 26. in Margin, read
C. 16. p. 98. for c. 36. read c. 16. p. 130. in the Margin, for c. 6. read c. 5. p. 366. for C. 14. read
C. 13. P. 369. in Margin, for c. 2. read 2. 6. p. 438. for Note, But:) read But Note. p. 488. lin. ante
penult. after enacted add by 37 H. 8. c. 12. p. 640. after Parliament add by whose Advice that Feet.
ter was written ; in the Table Tit. Tythes, 6 Annæ c. 27. for ſeveral read ſmall.
BOOK S lately Publiſhed.
1.
A
N Abridgment of the Cominon Law: Be-1 Codex Legum veterum; containing all the Lau's
irg a Collection of the principal Caſes ar- from King Henry the Firſt to Magna Charia;
gued and adjudged in the ſeveral Courts of Weft- and allo "Biſhop Nicholſon's Epiftolary Differ-
minſter. Hall. The Whole being digefted in a tation, de Jure frutali veterum Saxonum. By Dr.
clear, and alphabetical Method, under proper Wilkins. Folio.
Heads, with ſeveral Diviſions and Numbers un 7. Regiſtrum Honoris De Richmond. exhibens Tera
der each Title, for the more ready finding any rarum Ü Villarum, qua quondam fuerunt Edwini
Judgment or' Relolution of the Law. Caſes; Comitis infra Richmondſhire, Defcriprionem : Ex Li-
whereby the Opinion and Judgment of the bro Domeſday in Thefaur ario Domini Regis : Neca
Courts may be ſeen in an exact Series of Tiine, non varias extertas, Feoda Cemitis, Fæda militum,
and what Alterations have been made in the Law Relevia, Fines Wardas, Inquiſitiones, Compolos,
by ſubſequent Statutes and Judgments; brought Clamea, Chartafque ad Richmondi.e "Comitatum
down to the Year 1725. By William Nelſon of Speitantes : Omnia juxta Exemplar aniiquum in
the Middle-Temple, Eſq;. In three Vols. Folio. Bibliotheca Cotroniana affervatum exarata. Adjici-
2. Sir 0-l. Bridgman's Conveyances: Being fe- untur in Appendice Chariæ elie, Obſervationes plu-
lect Precedents of Deeds and Inftruments con- rima, Genealogia, & Indices ad Opus illuſtrandum
cerning the most conſiderable Eſtates in Eng-neceſſarii
. Folio.
land. Drawn and approved by that Honourable 8. The Reports of Sir Creſwell Levinz, in
Perſon in the Time of his Practice. In two three Parts ; beginning at the twelfth Year of
Parts. The fifth Edition with large Additions ; King, Charles the Second, and ending at the
and a new Table to the Whole. N. B. The fe-eighth Year of King William the Third. In Folio,
cond Part may be had alone. Folio.
French and Engliſh, with References.
3. The Reports of that Reverend and Learned 9. Reports in the Courts of King's Bench, from
Judge the Right Honourable Sir Henry Hobart, the twelfth to the thirtieth Year of King
Knt. and Baronet, Lord Chief Juſtice of his Charles the Second. By Joſeph Keble of Gray's
Majelty's Court of Common Pleas, and Chan- Inn, Eſq;. In three Vols. Folio.
cellor to both their Highneſſes, Henry and 10. A Report of divers Cafes in Pleas of the
Charles, Princes of Wales. The fifth Edition. Crown; adjudged in the Reign of King Charles II.
Review'd and corrected from the Errors of all with Directions for Juftices of the Peace and
former Impreſſions; with an Addition of many others. By Sir John Keyling, Knt. froin the o-
Thouſands of new References, by. Edward Chile riginal Manuſcript under his own Hand. To
con late of the Middle Temple, "Efq; with an which is added, the Reports of three modern
exact alphabetical Table by an Honourable and Cafes, viz. Armſtrong and Lilly, the King and
Learned Hand. Folio.
Plumber, the Queen and Mawbridge. Folio.
4. Reports of Caſes adjudged in the Court of 11. Tables of all the Caſes printed in the
King's Bench; together with ſeveral ſpecial Ca- Books of Reports, digeſted under proper Heads.
fes adjudged in the Courts of Chancery, Com. To which is added, the Names of all the Caſes
mon Pleas, and Exchequer ; from the Revolution in an alphabetical Order. Folio.
to the tenth Year of Queen Anne. By Wil 12. Modern Entries: Being a Collection of fc-
liam Salkeld, late Serjeant at Law. With two lect Pleadings in the ſeveral Courts at Welt-
Tables ; the one of the Names of the Caſes, the minſter, viz. Declarations, Pleas in Abateinent
other of the principal Matters therein contain and in Bar, Replications, Rejoinders, &c. To
ed. Vol. III. Printed from the original Manu- which is added, a Collection of Writs in moſt
ſcript written by himſelf. Folio.
Caſes now in Practice: With two Tables; one
5. The firſt Part of the Inſtitutes of the of the Names and Caſes, and the other of the
Laws of England, or a Commentary upon Lit- Pleadings and Writs. By John Lilly, Gent. late
sleton ; not the Name of the Author only, but Principal of Cliffords- Inn. Folio
.
of the Law itſelf. By Sir Edward Coke, Kniglit. 13. Reports of Cales and ſpecial Arguments
The eleventh Edition, carefully corrected; with argued and adjudged in the Court of King's
an alphabetical Table. To which is added, the Bench; with many marginal Notes and Refe-
Treatiſe of the old Tenures of the Law of rences, and two complete Tables; one of the
England, and alſo three Tracts; the first, bis Names of the Caſes, the other of the princi-
Reading upon the Statute of levying fines; pal Contents
. By Sir Bartholomew Shower, Kut.
the ſecond, of Bail" and Mainpriſe; the third, In two Vols.
his coinplete . Copyholder ; and many Thouſands 14. A Treatiſe of the Pleas of the Crown;
of new References to the modern Law-Caſes. or a Syltein of the principal Matters relating
Folio.
to that Subject, digeſted under their proper Heads,
6. Leges Anglo Saxonicæ Ecclefiafticæ. G. in iwo Books. By William Hawkins of the Inner
viles; containing all the Engliſh, Saxon, French, Temple, Eig;.
Norman, and Latin Laws, from the firſt Chri 15. The Report of ſeveral Caſes argued and
ftian King Ethelbert, down to Magna. Charta ; adjudged in the Court of King's Bench, from
with large Notes, containing neceſſary Explica- the first Year of King James the Second, to
tions and References to the old and preſent the tenth Year of King William the Third.
Law's in Great Britain; the Capitularies and old Collected by Roger Comberbach, Eſq; late Re-
Laws of Germany and France, Sweden and Den- corder of Chefter.
mark. To which is added, Sir Henry Spelman's
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