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wards presented the plaintiff to the cumbent of Stoke Lacy was inducted succeeding Bishop of Hereford, to be into Ocle Prichard; he ought further adınitted, &c., and that the plaintiff to allege, either that Stoke Lacy is was afterwards duly admitted, in- above the value of gl. a year, or that stituted, and inducted; and then sentence of deprivation has been passed claimed the value of the tithes taken on the former incumbent; or that be by the defendant to his own use, in has resigned, or is dead. (See the the interval between the first presen- argument for the defendant, and the tation of the plaintiff and his ad. judgment, in Halton o. Cove.)t White mission, institution, and induction the first living is only voidable, the under the second.

original incumbent may sue for the The defendant pleaded, that “the tithes : 2 Roll. Abr. 363. rectory of Stoke Lacy, at the times The allegation in the second count, mentioned, was, and still is, a benefice that “ the said Thomas Apperley with cure of souls, below the yearly thenceforth ceased to be rector of value of 8l. according to the valuation Stoke Lacy,” is no more than the thereof in the king's books." To which conclusion of the pleader from the plea there was a general demurrer and facts before stated; and those facts rejoinder.

do not warrant the conclusion. There was a second count in the Stephen, Serit, for the plaintiff. declaration, which, after stating the That allegation is in itself a direct presentation of the plaintiff to the and positive allegation of fact, on vicarage of Ocle Prichard, as in the which the defendant might have taken first count alleged directly, that "the issue, and which he has admitted by said Thomas Apperley thenceforth pleading over. The second count is, ceased to be rector of the rectory of therefore, clearly sufficient; and even the parish church, in fact or of right;" if the allegation, that Apperley acto which second count the subsequent cepted another living, be taken to pleadings were the same as to the first shew that the living of Stoke Lacy count.*

became thereupon only voidable, the Ludlow, Sergt. for the defendant, further allegation, that the plaintiff abandoned the pleas, but took excep- was presented, instituted, and inducted tion to the declaration.

into Stoke Lacy, taken in conjunction In order to sustain this action, the with the former, establishes that it plaintiff must shew on the face of his was completely vacant. Stoke Lacy, declaration that, during the time for however, whether it be above the which he claims to recover the tithes, value of 81. a year, or under, became the living of Stoke Lacy was vacant void to all intents upon the incumwithin the meaning of the statute bent's accepting another living. If it 28 H. 8 c. 11; for he who seeks to be above 8l. a year, it became void recover by virtue of a statute must under the statute 28 H. VIII. c. 11; if shew himself to be strictly within its of less value under the Canon law, provisions; Com. Dig. Pleader (C.) which, upon such an occurrence, de76. Under that statute, the accept- clares, without qualification as to value, ance of a second living does not render that the incumbent eo sit ipso jure the first void, unless the first be above privatus. Apperley v. Bishop of Herethe value of 8l. a year, or the incum- ford. 1- Cur. adv. vult. bent has actually resigned. If the Tindal, C. J. (after stating the case first living be under the value of 8l. a as anlè, p. 352.), -though it was conyear, it is only voidable upon the ac- tended, in the course of the argument, ceptance of a second; and sentence that the direct allegation in the second of deprivation, death, or resignation, count, of Thomas Apperley baving is necessary to complete the vacancy. ceased to be the rector of Stoke Lacy, * Wats. Clerg. Law, c. 2.

being admitted in the course of the It is not sufficient, therefore, for the pleadings, there was an end to any plaintiff to allege merely that the in- question whether the church was

See Apperley v. Bishop of Hereford, 9 Bingh. 681.

+ I B. and Adol. 519.

19 Bingh. 6s1.

vacant or not; yet, inasmuch as it may ance and vacation of any such benefice," be fairly coutended that such allega- and “that the tithes and other profits tion, though direct in point of form, is growing, arising, or coming during the no more in substance than a legal in- time of vacation, shall belong and afference or conclusion from the facts fere to such person as shall be thereunto stated in the same count, we think it next presented, promoted, instituted, better to found our judgment upon inducted, or admitted, towards the the general question raised upon the payment of the first fruits to the king's whole record.

highness," the manifest object of the The question raised appears to be statute is, that in all and every case this :—The patron of a benefice, with where there is a complete avoidance cure of souls, under the value of 81. in of a benefice, and, consequently, a the king's books, being also the incum- vacation in fact, the tithes shall bebent of the same benefice, accepts long to the successor from the date of another benefice with cure, and there- such avoidance, in order to enable him upon presents a clerk to the proper to pay the first fruits, the year of which ordinary, who is afterwards admitted, payment is declared to commence from instituted, and inducted on his presen- the same point of time. The mischief tation :—whether the first-mentioned intended to be remedied, was that of benefice is to be considered vacant the bishops and others at that time within the meaning of the 28 Hen.VIII. deferring to collate to benefices, or c. 11, from the time of the presenta- to institute clerks presented to them tion to that benefice, or from the time for an unreasonable time, to the intent of induction only?

that they might take to their own use The general object of the statute 28 the tithes growing during the vacation. Hen.VIII. c. 11, was, as is stated in the The act, therefore, as well on account preamble, to supply a defect in the for- of its being a remedial act, as on acmer statute 26 Hen.VIII. c. 5, wherein count of the general words of the express mention and declaration had enactment, ought to have a liberal not been made, “ from what time the construction, and to be made to coinyear shall be accounted in which the prehend every case that falls within first fruits shall be due and payable to the mischief; and, at all events, ought bis Majesty, whether immediately from to have such a construction, as that the death, resignation, or deprivation the tithes which arise in vacation, of every incumbent, or from the time within the proper meaning of that of admission or new taking of posses

term, shall be payable in every case, sion in every such promotion.” The either to the former, or the succeeding three instances mentioned in the incumbent. preamble are introduced only to shew The question, therefore, is, when the nature of the vacancy intended, does the vacation of this benefice not to restrain the operation of the commence ? The law, as

to the act to those three particular cases. avoidance of a former benefice by the For the union of two livings (a case acceptance of a second, with cure, that will be afterwards more parti- may be considered with reference to cularly adverted to, the session of three cases: first, where the former a living, where the incumbent is benefice is of the value of 8l. or above, created a bishop, are instances where in the king's books; second, where the the former living is as absolutely void, former benefice is below the value of and the vacancy is as much a vacancy 81. and the incumbent of the former in fact, without any further act: done living is not also the patron, but is a to complete the avoidance, as in the separate and distinct person; thirdly, three cases especially adverted to in where the former benefice is below the preamble.' When, therefore, the the value of 8l., but the incumbent of statute afterwards proceeds to enact, the former benefice is, at the same generally, “that the said year in which time, the patron of it. And it may be the first fruits shall be paid to the convenient to see how the law stands king's grace shall begin and be ac- with respect to the two former cases, counted immediately after the avoid- before we come to the consideration of the third case, which is the case first benefice is full, as to strangers, actually before the Court.

until deprivation; the first incumbent, As to the first case, the rule of law notwithstanding his acceptance of the is clear upon the construction of the second living, having the power to sue statute 2i Hen. VIII. c. 13. by the for and recover the tithes until actual ninth section of that statute, it is deprivation, according to the authority enacted, “ that immediately upon the of Yelverton, J., as given in 2 Roli. possession of the second benefice, the Abr. 361. first benefice shall be adjudged void." But the case now before the Court, And again, by section 10, “that it is one where the person who presents shall be lawful for the patron thereof to the first benefice is, at the same to present another, as if the incum- time, both patron and incumbent ; bent had died or resigned." In such where the act of presentation is not case, therefore, it is clear that, upon an act done by a stranger without the possession of the second benefice, notice to him, the patron, but is the the first becomes actually vacant; that act of the individual patron himself. the incumbent is put out of possession of And we think that circunstance so the first by the operation of the statute, far distinguishes this from the case without any sentence of deprivation, last considered, that it makes the first as if he were dead or had resigned; benefice actually void from the time of and that the former living is void de such presentation, within the meaning facto, not only as to the patron,-who and the provisions of the statute 28 is bound to take notice of the avoid- Hen. VIII. by rendering any senance from the time of the induction tence of deprivation altogether undeto the second living, — but also with cessary and inapplicable. respect to strangers, such as the The distinction between the two parishioners, who might plead the cases may, perhaps, be more clearly induction to such second living, as seen, by considering first, how the an answer to any demand for eithes' rights of the individual, who is at by the former incumbent, accruing once the patron and incumbent of the subsequently to his acceptance of the first benefice, are affected as patron ; second living.

secondly, how the rights of the same As to the case secondly above put, individual are affected as incumbent. it is equally clear, that, where the Now, the sole ground upon which it former living is below the value of 8l. has been held in all the decided cases, and the incumbent has accepted a that, where the first benefice, with second benefice with cure, so far as cure, is less than 8l. in the king's the patron is concerned, the former books, the acceptance of a second, benefice is not absolutely void, but by the incumbent, makes the former voidable only at the election of the voidable only, not void, as against the patron. It is so far void, that the patron, is this, - that the avoidance, patron may present another to it if he not being by the common law, or by will, and the ordinary may admit and any statute, but by the canon law institute upon such presentation ; but only, the patron is not bound to take if the patron will not present, no lapse notice of the institution and induction shall incur, until there is sentence of to the second living, to which act he deprivation as to the first benefice, is a stranger, until it is followed up and notice thereof has been given to by actual sentence of deprivation and the patron. This was resolved in notice thereof to him. Holland's case, and in Dygby's case, * But this ground necessarily fails and often before. In such a case, where the patron is himself the person therefore, it would be clear that the who accepts the second living, and provisions of the statute 28 Hen. VIII. afterwards presents to the first; for it c. 11, would not apply till actual de- would be absurd and unreasonable that privation. For, notwithstanding the he should set up the want of notice of acceptance of the second benefice, the his own immediate act. And this

• 4 Co. 75, 78.

as the

appears to be consistent with what is bishop, expressly alleges, “ that the found in the treatise entitled,“ Doctor

benefice is then vacant." And the and Student," Dial.ij.c. 31; the author better opinion in the books appears to of which, after stating that, if the be, that the king only can revoke a voidance be by resignation or depriva- presentation when once made: no lay tion, the six months shall begin from patron has the power to do so : all the the time the patron has notice of the books agreeing that he cannot do so resignation or deprivation (whether he after institution (see Dyer, 348, and may have actual knowledge of it or the cases cited in Watson, p. 225); not), proceeds to say that, in case of but that the utmost the lay patron an union, which is also a cause of can do, is to vary his presentation, by voidance, “there can be no union offering another clerk to the bishop; made but the patrons must have know- out of whom the bishop may choose ledge: and it must be appointed who

which he pleases. shall present after such union; that is In the case of an ecclesiastical to say, one of them, or both, either patron, the rule is still more strict, jointly, or by turn one after another,

for be can neither revoke nor vary; agreement is

upon

the union: (Latch. Rep. 191, 254); and although and, sith the patron is privy to the it may be too much to contend, that the avoidance, and is not ignorant of it, circumstance of the patron in this case the six months shall be accounted being a clergyman, brings him within from the agreement.” Now, the case this rule, which seems rather to apply of an actual presentation by the patron to the case of a right of presentation of the living, to which he was also the belonging to an ecclesiastical person in incumbent, falls precisely within the right of his ecclesiastical preferment; same reason; and the living, as to yet, it is enough for the present arguhim, must be absolutely void, and the ment to shew, that he has no general six months' term for lapse must com- power to revoke, but that the clerk, mence from the time of such presen- when he has once presented to the tation. In fact, he has only done that bishop, must still be submitted to the which every patron has a right to do; bishop's choice, though the patron may he has elected to consider it void add another. The effect, therefore, of without a sentence of deprivation, by such a presentation to the first benefice, making his presentation in the first where ihe clerk has been subsequently instance.

instituted and inducted under it, apBut, secondly, if the first living is pears to us

to be, that the former actually void, as to him, in his charac- incumbent can never contend that the ter of patron, from the date of his own living was not vacant, in point of fact, act of presentation, how can it be at the time he so presented: that, in otherwise than void, as to him, in his case he should sue for the tithes which character of incumbent; that is, as to grew and arose subsequent to his preall the rights between him and his sentation of the new incumbent, he parishioners? It would seem a strange

would fail in his suit : that the and unreasonable distinction, that payment of the tithes to the successor when the living is void as to a man is a good and valid payment. And if in one character,--that of patron,- this be so, the case appears to us to in consequence of his own voluntary fall within the remedy intended to be act of presentation, the same living given by the statute'; for otherwise should be full as to the same indivi- the mischief would follow which was dual in another character, viz. that of intended to be prevented by that act; incumbent; and that such cannot be viz. that the tithes which grew and the case, will appear from considering arose since the presentation would the nature of a presentation, and how neither be claimable by the preceding far it is binding on the patron, when nor succeeding incumbent, but would once made.

fall either to the ordinary or to the The form of the presentation, which parishioner himself: the very conseis an instrument in the nature of a quence which the statute intended to letter missive by the patron to the

prevent.

In the cuurse of the argument on been made by him as patron, we must the part of the defendant, reliance was intend, as against him who has stated placed on the judgment of the Court the living to have been actually vacant, of King's Bench in the late case of that the living was vacant by his ceasHalton o. Cove,* It will be sufficient ing to be in possession, both in fact to say, that the judgment given by us and in law. is not inconsistent with the judgment There is no occasion to advert to in the case referred to. The court of the decision of this Court in the late King's Bench held, on that occasion, case of Apperley v. the Bishop of Here that the statute applies to the case of ford, because it turned upon a point a living actually vacant, and that it wholly collateral to the present. could not apply to the case then be- On the whole, we think the first 'fore the Court, where the living was benefice became actually vacant from not, in fact, vacant, the rector still the time of the presentation made to continuing in possession. But the dis- the same, and that the plaintiff is, continction appears to us to be, that, in sequently, entitled to the tithes in this case, the incumbent does not ap- question from that time, under the pear to have continued in possession; statute of Hen. VIII.; and we, therebut, on the contrary, upon this record, fore, give judgment for the plaintiff. which alleges the presentation to bave

Judgment for the plaintiff.

MONTHLY REGISTER.

S. P. C. K.

work upon the Society's catalogue, inAn Account of the Management of the

cluding the Saturday Magazine, and Depository of the Bath and Bedminster the productions of the Commitiee of District Committee.

General Literature, of which the şuhThe depository of the Bath and Bed

secretary is the agent for this city and minster District Committee consists neighbourhood. of a moderately sized shop, situated The mode of conducting the busiin Argyle-street, one of the principal ness of the depository 1 is as follows : thoroughfares of the city of Bath. It

Persons being members of the Pais placed under the superintendence rent Society, and subscribing at least of the secretary and treasurer, and in 108. 6d. per annum to the District the immediate charge of the sub-se- Fund, i.e. double subscribers, may purcretary, the widow of a respectable chase books at the “members' prices," tradesman, who, with her daughter, marked in the Society's catalogue. conducts its daily business. There Those who subscribe only to the Paare always kept upon the shelves a

rent Society, or to the District Fund, sufficient number of copies of everyt i. e. single subscribers, are charged 10

* 1 B, and Adol. 538.

7. The impolicy of ordering from the Parent Society too large an assortment of books, at the commencement of a Depository, cannot be sufficiently impressed upon District Committees. It is one of the principal causes of future embarrassment and debt, out of which a small district can scarcely hope to emerge.

I It may be satisfactory to state the expenses of the Bath Depository for the last year.

s. d. Carriage of Books

20 1 Contingencies

5 17 6 Shop Boy

5 0 Agency

55 0 Rent, Taxes, and Repairs

48 2 10 Coals, &c.

5 5 0 Stationery, Printing, &c. ...,

29 12 7 The first and last items do not properly belong to the expenses of the Depository, though they are here set down.

9

..

5

0

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