year upon some Sunday after Evening-Prayer to reade in their Parish Churches the Statute of the 20 Jac. cap. 20. against prophane cursing and swearing and once every year upon some Sunday or Holyday in the Afternoon before Divine Service they are to reade the Book of Canons agreed upon in the Synod begun at London Anno Dom. 1603. and every Minister every year in his Church the Sunday next before the 29 day of May at Morning-Prayer is to reade the Statute of the 12 Car. 2. cap. 14. Ministers before their Sermons Lectures What Order Ministers are to observe in their Prayer before their Sermons c. and Homilies are to Pray first for the Holy Catholick-Church of Christ through the whole World and especially for the Churches of England Scotland and Ireland then for the King Queen and Royal Family next for all Arch-Bishops Bishops and other Pastors and Curates of God's Holy Word and Sacraments then for the King's Privy-Council and all the Nobility and Magistrates of his Realm and for the Commons that they may live in true Faith and fear of God in humble Obedience to the King and Brotherly Charity one to another and lastly they must praise God for all those who have departed out of this Life in the Faith of Christ and must pray to God that we by Grace may learn to follow their Good Example that after this Life ended we may be partakers with them of the Glorious Resurrection of the Life Everlasting and must always conclude with the Lord's Prayer Can. 55. The Supream Ecclesiastical power in the King Note That the King hath the Supream Ecclesiastical Power in him as it hath been held and agreed and may without Parliament make Orders and Constitutions for the Government of the Clergy and may deprive them if they obey not and they can make no Canons or Constitutions without his Assent Cro. Jac. f. 37. Mo. Rep. f. 155. pl. 1043. and Vaugh. Rep. f. 329. The power of the Convecations But some Clergy-men seem to think and others do not stick to say that no Orders or Constitutions can be made to bind them but what are agreed upon in the Convocations of the Clergy therefore I think it will not be amiss to insert here the Authority of the Convocation as my Lord Coke sets it down in his fourth part of his Institutes which take as followeth he saith it is called Convocation a Convocando because they are called together by the King 's Writ and their Authority being never assembled together but by the King 's Writ was to deal with Heresies Schisms and other meer Spiritual and Ecclesiastical Causes and therein they did proceed juxta Legem Divinam Canones Sanctae Ecclesiae and as they could never assemble but by the King 's Writ so they were oftentimes commanded by the King 's Writ to deal with nothing that concerned the King's Laws of the Land his Crown and Dignity his Person or his State or the State of his Council or Kingdom and so whatsoever Act is done in the Convocation is under the Power and Authority of the King but not è contra what he doth under them see the King's Letters in the conclusion of this Chapter vide Co. Inst 4 part f. 322. 26 H. 6. 13. and 21 Eliz. 4. f. 45. a. p. Vavasour and f. 45. 6 p. Starkey and Brown and Rolls Cases 1 p. f. No Canons to be made in the Convocation without the King's Licence And the Lord Coke saith further that the King did often appoint Commissioners by writ to sit with them at the Convocation and to have Conusance of such things as they meant to establish that nothing should be done in prejudice ut supra And therefore the Statute of 25 H. 8 cap. 19. whereby it is provided that no Canons Constitutions or Ordinance should be made or put in Execution within this Realm by Authority of the Convocation of the Clergy which were contrariant or repugnant to the King's Prerogative Royal or the Customes Laws or Statutes of this Realm is but declaratory of the old common-Common-Law but by the said Act their Jurisdiction and Power is much lestned concerning making of new Canons for they must have both Licence to make them and after they be made they must have the King 's Royal Assent to the allowance thereof before they be put in Execution 25 H. 8. cap. 19. Co. Inst 4 part f. 323. The King's Letters of direction to the Archbishop of Canterbury concerning the Clergy The King's Majesty in his Letters and Directions to the Archbishop of Canterbury dated the fourteenth Year of his now Majestie 's Reign in the Month of October declares there to this effect First That no Preachers in their Sermons shall presume to meddle with matters of State to modell new Governments or take upon them to Declare Limit or bound out the Authority and Power of Sovereign Princes or to State and Determine the difference between Princes and People but that as they have occasion they Faithfully tell the People of their duty of Subjection and Obedience to their Governors Superior and Subordinate of all sorts and to the established Laws according to the Word of God and the Doctrine of the Church of England as it is contained in the Homilies of Obedience and Articles of Religion set forth by publick Authority Secondly That they spend not their time in the search of speculative and abstruse Notions especially in and about the deep points of Election and Reprobation the Incomprehensible manner of the Concurrence of God's free Grace and Man's free Will and such Controversies as depend thereon And that however they do not presume possitively and doctrinaly to determine any thing concerning the same Thirdly That they forbear in their Sermons ordinarily and causelesly to enter upon the handling of any other Controversies of less moment and difficulty And when occasionally they be invited by their Text or Auditory to fall into them that they doe it with all Modesty Gravity and Candor asserting the Doctrine and Discipline of the Church of England from the Cavils and Objections of such as are Adversaries to either without bitterness railing jeering or other unnecessary or unseemly Provocation Fourthly That they Catechise the Younger sort according to the Book of Common-Prayer and in their ordinary Sermons do chiefly insist upon Catechistical Doctrines containing the necessary Truths of Christian Religion and setting forth withall what Influence such Doctrine ought to have in their Lives and Conversations and stirring up the People by their Lives and Doctrine to the practice of such Religious and Moral duties as are the proper result of the said Doctrines as Self-denyal Contempt of the World Humility Patience Meekness Temperance Justice Mercy Obedience and the like and to hate and shun sin especially the sins so rife and common amongst us and more especially those usually called the seven deadly sins and all kind of Debauchery Sensuality Rebellion Prophaneness Atheisin
Contract whether he be privy to it or no it makes the Presentation Admission Institution and Induction all void whereas before the said Statute they were but voidable by deprivation And if a Man by Usurpation present to a Benefice by reason of any corrupt Contract Agreement c. that Presentation and the Institution and Induction thereupon are void for the Act extends to all Patrons as well by wrong as by right with this difference that where any presents by Usurpation the Right Patron and not the King shall present for otherwise every Rightful Patron may lose his Presentation And such an Incumbent that cometh in by the Lawful Patron by reason of any such corrupt Agreement if he be privy to the same is so absolutely disabled for ever after to be presented to that Church as the King himself to whom the Law giveth the Title of Presentation in that Case cannot present him again to that Church for the Act being made for suppression of Simony and such corrupt Agreements so binds the King in that Case that he cannot present him that the Law hath disabled for the words of the Statute be shall thereupon and from thenceforth be Adjudged a disabled Person in Law to have or injoy the same Benefice And the party being disabled by the Act of Parliament which being an absolute and direct Law the King cannot dispense therewith no more than with the Common Law by any Grant c. with a Non obstante as he may do when any thing is Prohibited sub modo as upon a penalty given to the King or to the King and the Informer but if the Incumbent were not privy to or did know of the corrupt Agreement c. then he shall not be accounted a disabled Person within the said Act to be presented de novo And note that this Act doth not only extend to Benefices with Cure but to Donatives Dignities Deanries Prebends and all other Ecclesiastical Livings Co. Lit. f. 120. a. Co. 3. part Inst. f. 153 154 155. vide M. 42. 43. Eliz. C. B. Rot. 3333. Baker and Roger's Case Cro. Eliz. f. 788. pl. 30. and M. Rep. f. 914. pl. 1292. see also M. 13. Jac. B. R. the King and Bishop of Norwich and Cole and Saker's Case Roll's Rep. 1. part f. 235. pl. 7. Cro. Jac. f. 385. pl. 16. Hob. Rep. f. 75. Boulstr Rep. 3. part f. 88. vide Plo. Com. f. 502. 2. H. 7. 6. 11. H. 7. 11. Hetlye's Rep. f. 51. M. 9. Car. 1. B. R. Bawderoicke and Mackaller's Case Cro. Car. f. 330. pl. 15. M. 10. Jac. Stamford and Hutchinson's Case Cro. Rep. 12. Lib. f. 101. A Wife may Contract Simony If one Contract with the Wife of the Patron to be presented for Money and is presented accordingly by the Husband this is Simony within the Statute 31 Eliz. and makes the Presentation void for 27 H. 8. 26. the Contract of the Wife is the Contract of the Husband and 30 Eliz. 3. 39. he ought to declare accordingly and if the Contract be made with the Patron by a meer Stranger it makes the Presentation void Roll's Rep. 1. part f. 236. Cro. Jac. f. 385. Boulstr Rep. 2. part f. 182. 3. part f. 90. Guardian in Seccage cannot Present Simony is odious in the Eye of the Common Law for a Guardian in Soccage of a Mannor whereunto an Advowson is appendant shall not present to the Church because he can take nothing for the Presentation for the which he may account to the Heir and therefore the Heir in that Case shall Present of what Age soever he be and the Common Law would have the Patron so far from Simony as it denied him to Recover Damages in a Quare Impedit or Assize of Darrein Presentment before the Statute of Westminster 2. cap. 5. and it is the more odious because it is ever accompanied with Perjury for the Presentee is Sworn to Commit no Simony as appears by the Oath before mentioned in this Chapter vide Co. Inst 3. part f. 196. F. N. B. 33. T. 7. E. 3. 39. a. Co. 2. part Inst f. 362 363. Co. Rep. 6. Lib. f. 51. and it hath been agreed by the Court of Common Pleas that Simony is most properly Triable in the Spiritual Court M. 40. Eliz. C. B. Reishye and Wentworth's Case Cro. Eliz. f. 642. pl. 42. M. 3. Jac. Close Case M. Rep. f. 777. pl. 1077. A contract when the Parson is sick is Simony Note that it hath been held and so adjudged in Chancery as the Book saith That if a Man obtain a grant of the next avoidance for money when the Parson is sick in his Bed ready to dye it is Simony for the Statute is if the contract be made directly or indirectly by any way or means P. 21 Jac. C. B. Shelden and Bret's Case Winch Rep. f. 63. and see P. 4 Jac. C. B. Rot. 1926. Winchcombe and Bishop of Winchester and Puleston's Case M. Rep. f. 877. pl. 1231. Noye's Rep. f. 25. Hob. Rep. f. 165. In Case where Bond or other assurance Bonds c. for mo eys noâ— void promise c. is made for moneys to be presented to a Benefice though the Simoniacall contract make the Presentation c. void yet the Statute doth not make the Bond Promise c. for the money void and so it was adjudged P. 40 Eliz. C. B. Rot. 1745. in Gregory and Oldbury's Case cited by the Lord Cook in the Margin of his 3 part Inst f. 153 M. Rep. f. 564. pl. 769. Boulstr Rep. 2 part f. 182. Note this Case following where a What contract no Simony contract was made with the Patron for the next avoidance the Parson being then sick and yet adjudged no Simony as Crook reports it the Case was this the Father of one Smith came with his Son to the Patron the Parson being then sick and in the presence of his Son contracted with the Patron for the next avoidance to the Church for 100 pounds who thereupon made a grant thereof the Parson afterwards dyes and the Father presents his Son who is Admitted Instituted and Inducted into the Living and was sued in the Spiritual Court to be deprived for Simony and thereupon a Prohibition was granted and it was adjudged to be no Simony and the reasons there given are that the Father might buy the Advowson and present his Son and it is no Simony in any to buy an Advowson And although the Son here was privy thereto yet it is not material for it being no offence in the Father who was Principal it cannot be an offence in the Son who is but Accessary for there cannot be a particeps criminis where there was not any crime committed but if the Parson himself had contracted for a Benefice to the intent another should present him that is Simony But the Father is bound by Nature to provide for his Son and therefore his buying an Advowson to
Jurisdiction Powers Superiorities and Authorities And do Promise that from henceforth I shall bear Faith and true Allegiance to the King's Highness his Heirs and Lawfull Successors And to my Power shall Assist and Defend all Jurisdiction Privileges Preeminences and Authorities granted or belonging to the King's Highness his Heirs and Successors or United and Annexed to the Imperial Crown of this Realm So help me God and the Contents of this Book 1. Eliz. cap. 1. The Penalty for refusing the Oath If any Person or Persons who shall be Promoted Preferred or Collated to any Spiritual Promotion or Ecclesiastical Benefice do Peremtorily refuse to take this Oath upon tender thereof then he or they so refusing shall presently be adjudged disabled in the Law to receive take or have the same Promotion Spiritual or Ecclesiastical to all Intents Constructions and Purposes 1 Eliz. cap. 1. and by the 5 Eliz. cap. 1. Refusal of the Oath upon the first tender being Indicted or Presented according to the Laws of the Realm within one Year after such refusal incurs the danger of a Premunire and if after the space of three Months after the first tender it be refused a second time upon tender such second refusal is High Treason and this second tender Principally concerns Ecclesiastical Persons 5 Eliz. cap. 1. The Penalty for extolling any foreign Power If any Person or Persons dwelling within this Kingdom or any other the King's Dominions shall by Writing Printing Teaching Preaching express words deed or act advisedly maliciously and directly affirm hold stand with set forth maintain or defend the Authority or Spiritual or Ecclesiastical Jurisdiction of any foreign Prelate or Person c. heretofore claimed or usurped within this Realm or other the King's Dominions or shall advisedly put in Ure or Execute any thing for the extolling c. any such pretended Power or Authority And being thereof Lawfully Convicted and Attainted for the first Offence forfeits all his Goods and Chattels real and Personal and if he be not worth twenty Pounds then to suffer a Years Imprisonment without Bail besides the forfeiture of such Goods and Chattels and shall also loose all his Spiritual Promotions and Dignities whatsoever and that the same shall be utterly void as if the Incumbent were Dead and the Patron c. may present de novo The second Offence Incurs the danger of a Premunire and the third Offence is High-Treason the Offences for Preaching Teaching or Words to be Indicted within the space of a Year next after such Offence committed and if any be Imprisoned for any of the said Offences of Preaching Teaching or Words and be not Indicted within half a Year after such Offence committed then to be set at Liberty two Witnesses or more to prove such Indictment and to be brought Face to Face upon the parties arraignment to give Evidence 1 Eliz. cap. 1. And if any Person or Persons shall The Penalty for defending the Authority of the Bishop of Rome by Writing Cyphering Printing Preaching or Teaching Deed or Act advisedly and willingly set forth c. or defend the Authority of the Bishop of Rome or of his See or any Bishop thereof heretofore claimed within this Kingdom or any other of his Majestie 's Dominions such Person or Persons so offending and their Abetters being Lawfully Indicted and presented for the same within One Year after and attainted at any time after shall for such First Offence incur the danger of a Premunire and for the Second Offence suffer such like Pains Forfeitures Judgments and Executions as for High Treason Corruption of Blood and Forfeiture of Dower excepted 5 Eliz. cap. 1. Note That in Hillary Term the 11 What shall be said an Offence within the 5 Eliz. Eliz. it was Resolved by the Justices of both Benches at Serjeants Inn in Fleet-street the Chief Baron being also present That if a Man imports Books over Sea written against the Supreamacy knowing the effect of them and utters them to any Subjects here he is within the compass of the stat 5 Eliz. cap. 1. but the Receivers of such Books if they in Conference of them do not allow them they are not within the said Statute but if they in Conference they do allow them then they are also within the Statute and so are they who hear the Contents and affirm them to be good The like of him who conveys the Books secretly to his Friends and perswades them to be of the same Opinion And so of them who Print and utter such Books within this Realm Also if such Books written within the Realm are conveyed out and are there bought read and Conference had upon them such Persons sending them out are within the Compass of the Statute Dyer f. 281. b. and 282 a. Ecclesiatstical Persons to take the Oath of Allegiance By the stat 7 Jac. cap. 6. every Archbishop and Bishop are to take the Oath of Allegiance set down in the 3 Jac. cap. 4. before the Lord Chancellor or Lord Keeper of the Great Seal for the time being and all Parsons Vicars and Curats and all other Spiritual Persons whatsoever taking Orders are to take the same Oath before the Bishop of the Diocess or other Ordinary in the same sitting in open Court the Tenure of which Oath followeth in these words viz. I. A. B. ' do truly and sincerely Acknowledge Consess Testifie and Declare in my Conscience before God and the World That our Sovereign Lord King Charles the Second is Lawfull and Rightfull King of this Realm and of all other his Majestie 's Dominions and Countries And that the Pope neither of himself nor by any Authority of the Church or See of Rome or by any other means with any other hath any power or Authority to depose the King or to depose any of his Majestie 's Kingdoms or Dominions or to Authorise any Foreign Prince to invade or anoy him or his Countries or to discharge any of his Subjects of their Allegiance and Obedience to his Majesty or to give Licence or leave to any of them to bear Arms raise Tumult or to offer any violence or hurt to his Majestie 's Royal Person State or Government or to any of his Majestie 's Subjects within his Majestie 's Dominions Also I do swear from my Heart that notwithstanding any Declaration or Sentence of Excommunicationâ— or Deprivation made or granted or to be made or granted by the Pope or his Successors or by any Authority derived or pretended to be derived from him or his See against the said King his Heirs or Successors or any Absolution of the said Subjects from their Obedience I will bear Faith and true Allegiance to his Majesty his Heirs and Successors and him and them will defend to the uttermost of my power against all Conspiracies and Attempts 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
3 cap. 5. and by the 1 R. 2. if any offend herein and be thereof duly Convict he is to be Imprisoned and Ransomed at the King's Will and must make agreement with the party 1 R. 2 cap. 15. vide Boulstr Rep. 2 part f. 72 and Cro. Jac. f. 321. pl. 4. and Brow Rep. 2 part f. 301. A Clergy-man guilty of Felony not to be burnt the Hand in If a Clerk in Holy Orders be Convicted of any crime for which the benefit of Clergy is allowable upon producing his Orders he shall not be burnt in the Hand and if he have not his Orders the Court ex gratia may give him time to produce them and if afterwards he be Convicted again he shall have his Clergy again and so ad Infinitum and though the party that may have benefit of his Clergy must pray it the Court not being bound to tender it ex Officio yet the 22 E. 3 F. Coronae 254. says that if the Judge know him to be a Clerk they will not give Judgment though he pray not his Clergy vide 4 H. 7 cap. 13. and see Searle and William's Case Hob. Rep. f. 288. and 294. By the Register it appears that Spiritual Ministers to be excused from paying Tell c. and Ecclesiastical Persons are to be quit of and from the payment of Toll in Fairs and Markets for the Goods and Merchandizes which they buy to be spent on their Rectories and Church Livings and for such Goods and Merchandizes as are gotten on their Church Livings and they are also to be quit of Murage Pontage and Pannage and the like and if they be troubled for payment thereof they may have a Writ out of the Chancery commanding the parties to desist and so an Alias Plures and then an Attachment and the Form of the Writ de essendi quietum de Toloneo runs thus Rex c. Ballivis suis de B. salutem cum Personae Ecclesiasticae secundum consuetudinem bactenus in Regno nostro usitatam approbatam ad Toloneum Pannagium Muragium de bonis suis Ecclesiasticis alicubi in eodem Regno prestand nullatenus teneantur vobis praecipimus quod R. B. Personam de L. c. vide Regist f. 260. F. N. B. 227. F. 228. A. Co. 2 part Inst f. 4. Clergy-men are not to be chosen into Temporal petty Offices And if a Clergy-man who holdeth certain Lands and Tenements by reason of his said Lands ought to be chosen Bailiff Beadle or Reeve or in such like Office for his Lands and by reason thereof shall be chosen into such Office he may discharge himself by Writ out of the Chancery as followeth Rex c. Ballivis de L. salutem cum secundum Legem consuetudinem Regni Nostri Angliae clerici infra sacros Ordines constituti ad Officium Ballivi eligi non debent nec bactenus consueverunt ac jam ex parte W. M. c. There is also the Form of a Writ in F. N. B. to free them if they be distrayned by the Sheriffs or Collectors of Tenths or Fifteens in their Spiritual Possessions antiently belonging to their Churches by their Goods there Register f. 187 188. F. N. B. 175 B. 176. A. Co. Inst 2 part f. 3. 628. Ecclesiastical Persons ought not in They are not bound Persâ—nally to serve in War c. Person to serve in War and in an action brought against a Clergy-man wherein a Capias lieth as in Trespass Debt Account c. If the Sheriff return quod clericus est Beneficiatus nullum habens Laicum feodum in which he may be summoned in this Case the Plaintiff cannot have a Capias to the Sheriff to take his Body but he must have a Writ to the Bishop to cause him to come and appear but if the Sheriff return quod Clericus est nullum habens Laicum feodum then a Capias may be granted to the Sheriff because it appears not by the return that he is Beneficiatus so as he may be warned by the Bishop so note the deversity vide 18 E. 3. proc 205. 9 E. 3. 30. 32 E. 3. Process 58. 21 H. 6. 16. 34 E. 3. scire fac 153. Co. Inst 2. part f. A Clergy Man's Body not to be taken upon a Statute acknowledged If any Ecclesiastical Person acknowledge a Statute Merchant or Statute Staple or a Recognizance in the Nature of a Statute Staple his Body shall not be taken by force of any Process thereupon for the Writ runs Si Laicus sit and if he be bound in a Recognizance in the Chancery or any other Court c. and pay not the summ at the day by the Common Law if he had nothing but Ecclesiastical Goods the Recognizee could not have had a Levari facias to the Sheriffs to Levye but the Writ was to be directed to the Bishop of the Diocess to Levye the same upon his Ecclesiastical Goods but now by the Statute of Westminster 2. cap. 18. the Recognizee may sue forth an Elegit directed to the Sheriff to have Execution of the Moiety of his Lands and of all his Goods and Chattels except his Beasts of his Plough Regist f. 300. 16 E. 3. Process 165. F. N. B. 266. A. B. Co. Inst 2 part f. 4. What Remedy Ministers have if the may be stepâ— where they should â—eade their Tythes If any of the Parishioners do disturb their Parson or Vicar to carry his Tythes by the usual ways and passages the Parson may sue in the Spiritual Court for the disturbance and if the other party sue a Prohibition upon the matter sued a Consultation shall be granted F. N. B. 51 A. In the 25 H. 8 There was a Statute made against the excessive number of Ministers may keep what number of sheep they pleâ—se Sheep wherein there is a Proviso that it might be Lawfull to all Spiritual Persons and every of them to keep such and so many Sheep upon their own Lands as they might have done before the making of the said Act 25 H. 8. cap. 13. The Priviledge of the Clergy and their Servants in the Convocation Note that the Clergy of the Kingdom called to the Convocation by the King 's Writ and their Servants and Families shall have such privileges in coming tarrying and going as the great Men and Communality of this Realm called to the King's Parliament do injoy 1 H. 6. cap. 1. Co. Inst 4 part f. 323. The punishment for disturbing Ministers If any Person or Persons of their own Power or Authority do or shall willingly and of purpose by open and overt Word Fact Act or Deed maliciously or contemptuously molest let disturb vex or trouble or by any other unlawfull ways and means disquiet or misuse any Preacher or Preachers Licensed allowed or Authorized to Preach by any Archbishop or Bishop of this Realm or by any other Lawfull Ordinary or by either of
c. and afterwards deprived after which the the Bishop without giving notice Collates he who ought to have this turn and might remove the Bishop's Clerk grants away the Advowson then the Bishop's Clerk dies in this Case the Grantee of the Advowson cannot present this turn for the Collation of the Bishop hath prevented him although it were without notice and so Tortious and though the granter might have outed the Bishop's Clerk by a Quare Impedit yet it is but a thing in action and when he hath granted the Advowson over the Grantee cannot have this thing in action nor the granter cannot have it so as none can now have it but it shall serve for a Presentation as in his turn for this time and the other whose Clerk was deprived shall present again M. 42 43 Eliz. C. B. Leak and Bishop of Coventry and Babington's Case Cro. Eliz. f. 811 pl. 17. And if two have right to present Where two having right they ought to joyn in a Quare Impedit and the Church becomes void and then one of them releaseth to the other this release is void and they ought to joyn in a Quare Impedit M. 30 31 Eliz. C. B. Brookesby and Wickham and Bishop of Lincoln's Case Leon. Rep. 1 part f. 167. pl. 237. If two Copartners be of an Advowson Grantees of Copartners are in like case as they who granted c. and they severally grant their parts to two several Men the advantage that was between the Partners doth hold place between the Grantees so that the first presentment shall go to the Grantee of the Eldest and the next to the other and an Usurpation of the one shall not put the other out of Possession but if they were meer Tennants in Common and did not derive their Estates from Copartners the Book saith perhaps it might be otherwise P. 25 Eliz. C. B. Harris and Haye's against Nichols Cro. Eliz. f. 18 pl. 6. What shall serve for a turn A. who hath one turn presents B. who is Admitted Instituted and Inducted and afterwards is deprived by sentence upon which C. who hath the second turn presents D. who is â—dmitted c. and afterward he is deprived also and the first sentence is repealed and B. is restored to the Living again and afterwards D. the second Incumbent dyes and then after that B. dyes also hereupon C. presents again as in his turn for though his Presentee were Parson for the time to all purposes during the deprivation of B. yet when the second sentence comes and B. is restored then he is Incumbent by virtue of his first Presentation Institution and Induction and needs no new Institution and so after his Death C. may present again as in his turn but if B. had dyed before he had been restored or had not reversed the sentence of deprivation against him then it had been otherwise and C. should not have presented again as in his turn P. 41 Eliz. B. R. Rot. 513. Windsor and Archbishop of Canterbury and Fletcher's Case Co. Rep. 5 Lib. f. 102. and see Cro. Eliz. f. 686. pl. 22. Roll's Cases 2 part f. 347 K. 4 5. M. Rep f. 558. pl. 760. But when the Admission and Institution are meerly void then without When Admission c. iâ— voiâ— it serves not for a turn question it shall not serve for one turn as if the Presentee have Institution and Induction but did not Subscribe to the Articles of Religion according to the Statute of 13 Eliz. by which the Admission Institution and Induction are void this shall not serve for a turn because the Admission Institution and Induction are meerly void by the Statute Co. Rep. 5 part f. 102 b. Roll's Cases 2 part f. 347 K. 6. and if a Woman be Presented Instituted and Inducted this is a meer Nullity because her Incapacity is apparent Roll's Cases 2 part f. 348 L. 8. Hob. Rep. f. 149. Three Grantees two of them may present the third If a grant of the next avoidance be made to three and afterwards the Church becomes void and two of the three present the third Grantee being a Clerk this is a good presentment and the Bishop ought not to refuse him although all the three were joyntenants of it by grant and only two of them joyn in the presentment because the third Person cannot present himself but if one of the three only had presented the third Person the Bishop might peradventure have refused him as it is said in Dyer f. 304 b. 14 H. 8. 2. 21 Eliz. 4. 66. a. but in Moor it is held and adjudged that if one of them had presented the third Person it is good enough Tr. 31 H. 8 Rot. 348 Sr. Godfrey Foliamb's Case M. Rep. f. 4. pl. 14. and Bendl. Rep. f. 34 Institution makes the Church full against all Persons but the King Where a Church is Presentative the Church is full by Admission and Institution against any Common Person but not against the King unless the Clerk be Inducted and that is the reason that regularly Plenarty shall be tryed by the Bishop because the Church is full by Institution which is a Spiritual Act but void or not void shall be tryed by the Common Law 24 E. 3. 30. 25 E. 3. 47. 38 E. 3. 9. 9 H. 6. 31. 22 H. 6. 27 Co. Lit. f. 119 b. 344. a. Roll's Rep. 1 part f. 191 Co. Rep. 6 Lib. f. 49. a. If a Man present his Clerk to the A Man may vary from his first Presentation Bishop yet he may present another before the Bishop hath received the first and the Bishop may admit which of them he pleaseth but where an Incumbent of a Church is deprivable yet the Patron nor the King himself cannot present before the party be deprived because the Church is not void till then 38 E. 3. 36 b. Roll's Cases 2 part f. 349 O. 2 P. 1 2. 353 T. 5. 14 E. 3 2 b. Institution makes the Church full If I. S. present his Clerk who is Admitted and Instituted by this the Church is full against a Common Person for by the Institution he hath curam animarum but if the King have right to present it is not full against him before Induction of the Presentee but if the King have no right to the Church then it shall be full against him also by Admission and Institution P. 13 Jac. Hitching and Glover's Case Roll's Rep. 1 part f. 191. and 227 Cro. Jac. f. 463 pl. 11. vide M. 4 5 Eliz. Dyer f. 217 b. pl. 62. 22 H. 6. 27. a. 38 E. 3 4 Co. Kep 4 Lib. f. 79. a. 6 Lib. f. 49. a. 11 H. 4. 9. Davis Rep. f. 82. Roll's Cases 2 part f. 349 Q. 1 2 3. 33 H. 6. 24. 21 E. 4. 34 b. When a Man Usurps upon the King Presentment by Vsurpation where it binds the King and his Clerk is Instituted and Inducted although by this
327. a. pl. 4. Not Reading the Artiâ—les c. makes the Living â—oiâ— Note this Case following one Higden was lawfully Presented Admitted Instituted and Inducted into the Rectory of Wringlington in Somerset shire being a Benefice with Cure of Souls of Fifty pounds Per annum and in the King's Books but of Five pounds Per annum and afterwards he was lawfully Presented Admitted Instituted and Inducted into the Rectory of Elme in the same County of Forty pounds Per annum and but Ten pounds in the King's Books and Subscribed the Articles of Religion according to the Act 13 Eliz. Cap. 12. and was lawfully Incumbent of the said Rectory of Elme but after did not read the Articles of Religion within two Months after his Induction to the Church of Elme according to the Act 13 Eliz. And in this Case it was Adjudged that Higden had lost both his Livings for as to the first Living if a Man have a Benefice with Cure of Souls whatsoever the value be and is Admitted and Instituted into another Benefice with Cure of what value soever having no Qualification or Dispensation the first Benefice is so ipso facto void that the Patron may present another to it if he please but if the Patron do not or will not present to it then no Lapse shall Incur if the Living be under value until deprivation of the Incumbent and notice thereof given to the Patron but if the Living be of the value of Eight pounds or above the Patron at his Peril is to present within Six Months by the Statute 21 H. 8. and as to the Second Living by his not reading the Articles he stands deprived ipso facto and so both are lost H. 22 23. Car. 2. C. B. Shute and Higden's Case Vaugh. Rep. f. 129. Note that a Dispensation granted by A Dispensation good though not Inroâ—â—ed the Arch-bishop of Canterbury to one who is Created Bishop to hold a Benefice in Commendam although it be not Inrolled in Chancery according to the Statute 25 H. 8. but is only entered in the Register of the Arch-bishop yet it is good enough and so it was Adjudged M. 6. 7. Eliz. C. B. in the Case of John Parkhurst Bishop of Norwich Dyer f. 233. a. Doder pa. 94. A Dâ—spensation after Consecration is too late But such Dispensation must be before Consecration or else it comes too late yet the King ex summa Authoritate Ecclesiastica qua fungitur may Grant to the Bishop that is Consecrated power to take and Retain by Presentation Institution and Induction any Spiritual Benefice and to hold the same in Commendam notwithstanding his Estate of being Bishop for so the Pope used to do and the same Authority is acknowledged by the Statute 25 H. 8. to be in the King of this Realm which was within this Realm by the Pope Doder pa. 95. By the Statute 13 Eliz. None shall Who qualified for a Living of Thirty pounds c. be admitted to any Benefice with Cure of or above the value of Thirty pounds yearly in the Queens Books unless he be a Batchellor in Divinity or a Preacher lawfully Licensed by some Bishop within this Realm or by one of the Universities of Cambridge or Oxford 13 Eliz. cap. 13. Acceptance of Three Benefices the first only void If a Parson have a Benefice of above the yearly value of Eight pounds and afterwards he takes another Benefice with a Dispensation and after this he takes a Third Benefice his first Benefice is only void Adjudged per Curiam M. 5. Jac. C. B. Godb. Rep. pa. 153. pl. 201. but it said by Heron in Noye's Rep. that both the first and second shall be void vide the King and the Bishop of Chichester's Case Noye's Rep. f. 149. A Suffragan Bishop capable of plurality By the Statute 26 H. 8. every Bishop's Suffragan exercising the Office by the Bishop's Commission for the better maintenance of his Dignity may have two Benefices with Cure 26 H. 8. cap. 14. and note that the Eight pounds value of a Church shall be according to the valuation in the King's Books and not according to the Improved and just value 8. Car. 1. C. B. Drake and Hill's Case Cro. Car. f. 456. there cited to have been so Adjudged Note by the Statute 21 H. 8. It is The penalty of Non-residence enacted that every Spiritual Person promoted to any Arch-deaconry Deanry or Dignity in any Cathedral Church or other Church Conventual or Collegiate or being Beneficed with any Parsonage or Vicarage shall be Personally Resident and abiding in at and upon his said Dignity Prebend or Benefice or at one of them at the least and in Case that any such Spiritual Person keep not Residence at one of his said Spiritual Dignities Prebend or Benefices as aforesaid but absent himself willfully 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 make his Residence and Abiding in any other places by such times then he shall forfeit for every such default Ten pounds Sterling the one half thereof to the King's Majesty and the other half to the Party that will Sue for the same in any of the King's Courts by Original Writ of Debt Bill Plaint c. 21 H. 8. cap. 13. But it is provided that this Act of Who excuseable for Non-residence Non-residence shall not in any wise extend nor be prejudicial to any such Spiritual Person as shall chance to be in the King's Service beyond the Seas nor to any Person or Persons going to any Pilgrimage or Holy place beyond the Sea during the time that they shall be so in the King's Service or in the Pilgrimage going and returning home nor to any Schollar or Schollars being Conversant and abiding for Study without Fraud or Covin at any University within this Realm or without nor to any of the Chaplains of the King 's or Queen's daily or quarterly attending and abiding in the King 's or Queen's most Honourable Households nor to any of the Chaplains of the Prince or Princess or any the King 's or Queen's Children Brethren or Sisters nor to any Chaplain of any Arch-bishop or Bishops or of any Spiritual or Temporal Lords of the Parliament nor to any Chaplain of any Dutchess Marquess Countess Vicecountess or Baroness nor to any Chaplain of the Lord Chancellour or Treasurer of England the King's Chamberlain or Steward of his Household for the time being nor to any Chaplain of any of the Knights of the honourable Order of the Garter or of the Chief Justice of the King's Bench Warden of the Cinque Ports or of the Master of the Rolls nor to any Chaplain of the King's Secretary and Dean of the Chapel or Almner for the time being dayly attending and dwelling in any of their Honourable House-holds during the time that any such Chaplain or Chaplains shall abide and dwell
without Fraud or Covin in any of the said Honourable House holds nor to the Master of the Rolls or Dean of the Arches nor to any Chancellor or Commissary of any Archbishop or Bishop nor to as many of the Twelve Masters in Chancery and Twelve Advocates of the Arches as be spiritual Men during so long time as they shall continue and occupy their said Rooms and Offices nor to any such Spiritual Persons as shall happen by Injunction of the Lord Chancellor or the King's Council to be bound to any dayly appearance and attendance to answer the Law during the time of such Injunction 21 H. 8. cap. 13. There is also another Proviso that it The King may Licence non residence shall be Lawfull for every Spiritual Person or Persons being Chaplains to the King to whom he shall please to give any Benefices or Promotions Spiritual to what number soever it be to accept and take the same without the danger of the said Statute and further that it shall be Lawfull for the King to give Licence to every of his own Chaplains for non residence upon their Benefices notwithstanding the said Act 21 H. 8. cap. 13. Who may be non resident And by the 25 H. 8. it is enacted that every Judge of the Courts of King's Bench and Common Pleas Chancellor and Chief Baron of the Exchequer the King 's General Attorney and Geneneral Solliciter may retain and have singularly to every of them in his House or attending on 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 25 H. 8. cap. 16. And the residence of every Bishop's Suffragan over the Diocess where he shall have Commission shall serve him for his residence as sufficiently as if he were resident upon any other his Benefice 26 H. 8. cap. 14. The Chancellor of the Dutchy of Who may be non resident Lancaster the Chancellor of the Court of Augmentations the Chancellor of the Court of first Fruits and Tenths the Master of the Wards and Liveries and every of the King 's General Surveyors of his Lands the Treasurer of his Chamber the Treasurer of the Court of Augmentations and the Groom of the Stool and every of them may retain in his House or attendant unto his Person one Chaplain having one Benefice with cure of Souls who may be non resident provided that every of the said Chaplains being Beneficed as aforesaid and dwelling with any of the Officers aforenamed do Personally repair two times in every Year at the least to his said Benefice and there tarry and abide by the space of eight days at every such time at the least to visit and instruct his said cure upon pein to forfeit for every time so failing forty shillings one Moiety to the King and the other to such as will sue for the same in any of the King's Courts of Record 33 H. 8. cap. 28. Schollars in the Vniversities when excusable for non residence Note that the clause in the 21 H. 8. cap. 13. which saith that the Penalty for non residence shall not extend to any Schollar or Schollars being Conversant and abideing for study without Fraud or Covin at the Universities is restrained and made more strict by the 28 H. 8. for there it is enacted that all and singular Spiritual Person and Persons which shall be promoted to any Benefice or Benefices as aforesaid being above the Age of forty Years the Chancellor Vice Chancellor Commissary of the said Universities or any of them Wardens Deans Provosts Presidents Rectors Masters Principals and other head Rulers of Colleges Halls and other Houses or Places Corporate within the said Universities or any of them Doctors of the Chair Readers of Divinity in the common Schools of Divinity in any of the said Universities only excepted shall be resident and abideing at and upon one of their said Benefices according to the intent and true meaning of the said former Act upon the pein and Penalty therein contained And â—hat none of the said Beneficed Persons being above the Age aforesaid except before excepted shall be excused of â—heir non residence for that they be students or resiant within the said Universities or any of them any Proviso in the former Act to the contrary notwithstanding 28 H. 8. cap. 13. What Students excusable for non residence And it is further enacted that all and singular such Beneficed Persons being under the Age of forty Years Resiant and abiding in the said Universities or any of them shall not enjoy the Privilege and Liberty of non residence contained in the Proviso of the former Act made for the Schollars of the said Universities unless he or they be present at the Ordinary Lectures as well at home in their Houses as in the common School or Schools and there in Person keep Sophemes Problemes Disputations and other exercise of learning and be Opponent and Respondent in the same according to the Ordinances and Statutes of either of the said Universities where he or thâ—â— shall be so abiding and resiant anâ— thing in the former Act notwithstanding 28 H. 8. cap. 13. And by the said Statute it is furtheâ— Readers of publick Lectures c. excusable provided that nothing therein contained shall extend to any Person â—â— Persons who shall be Readers of aâ—â— publick or common Lecture in Diâ—â—nity Law Civil Physick Philosophy Humanity or of any of the Liberal Sciences or publick or common Interpreters or Teachers of the Hebrew Tongue Caldee or Greek in whatsoever College or Place of any of the said Universities the said Persons for the time being shall reade the said common or publick Lectures nor to any Person or Persons above the Age of forty Years which shall resort to any of the said Universities to proceed Doctors in Divinity Law Civil or Physick for the time of their proceedings and Executing of such Sermons Disputations of Lectures which they be bound by the Statutes of the Universities there to doe for the said degrees so obtained 28 H. 8. cap. 13. Non residence 〈◊〉 is And now having shewed what the Statute Law saith concerning non residence I shall proceed to shew what the Judges Opinions have been in such Cases concerning the same as I find in our modern reports In an Information upon the Statute for non residence upon not guilty pleaded a special Verdict was found that the Defendant was Parson of Downham in Norfolk and had a Parsonage House and Glebe Land within the Parish but he Inhabited not therein but in a Coppy-hold Tenement which he had in the right of his Wife in the said Parish and alwaies served the cure and whether this were a non residence or no within the Statute was the Question And Gawdy and Popham Justices held it was not a residence within the Statute which was made for three causes first that the cure should be served
the same to the Ordinary or Guardian of the Spiritualities for the time being so that B. his Heirs or Assigns Patrons of the said Church may present anew to the same discharged of all Incumbrances made or suffered by A. then the same Obligation to be void otherwise c. and this upon demurrer was held to be a good condition without averment that it was for a Simoniacal purpose for otherwise it doth not appear to the Court to be so and there is a difference between malum inse against the Common Law and malum prohibitum by Statute Law or by the Civil or Caâ—on Law whereof the Judges at Common Law take no notice and it is there further said that if the condition were that after the Institution and Induction into the Church the Obliger shall at all times afterwards be Ordinarily resident and serving the cure of the said Benefice without absence by 80 daies in any one Year during the time that he shall be Parson there this is a good condition without any averment to be taken for any Simoniacal purpose M. 14 Car. 1. B. R. Carey and Yeo's Case Intratur H. 13 Car. 1 Rot. 445. Roll's Cases 1 part f. 417. V. 1 2. vide Co. Inst 3 part f. 153. in the Margin Simoniacal promise void A Parson did promise a Man that if he would bestow his labour and pains to procure him to be Presented Instituted and Inducted into the Chapel of the Tower being then void and a Donative in the King's Gift that he would pay him twenty pounds upon request whereupon he did procure him to be presented c. to the same and then required his money which the Parson refused to pay and thereupon he brought his Action in the Court of the Tower of London and had a Verdict and Judgment for the money upon which the Parson brought a Writ of Error and it was agreed that the Judgment was Erronious for the consideration was Simoniacal and against Law and no good consideration and therefore the promise not good and so the Judgment was reversed as Justice Jones reports it but in Justice Crook's reports it is there said that the Declaration was held not to be good for the Plaintiff had laid the promise to pay after the Defendant was Rector and shews that he was Rector by his procurement upon the said promise which could not be for he was never Rector but a Person utterly disabled to be a Parson by this Simoniacal contract as by the 13 Eliz. for not reading the Articles of Religion M. 9 Car. 1 B. R. Mackaller and Todderick's Case Jone's Rep. f. 341. pl. 1 Cro. Car. f. 337. pl. 24. 353. pl. 18. 361. pl. 2. and Roll's Cases 1 part f. 18. The King's turn lost when If a Clerk be Presented by Simony and be Instituted and Inducted into the Living and dye possessed thereof yet this doth not take away the King's turn but he may present after the Incumbent's Death if he please but if the Incumbent in his Life time resign or the like and a new Clerk were presented and dyed then the King's turn had been lost and if a Patron contract with one for Simony and then present another without Simony the King gains nothing for there must be an actual though not an effectual Presentation but if once the Patron have presented by Simony the King is straightwaies Interested though no Admission follow by the express words of the Statute but where the Patron is Innocent and the Simony begins in the Institution and Induction there the Church is void from the Induction only and the Patron shall present de novo because no fault in him and not the King And so where a Clerk gets Orders by Simony and obtains a Living within Seven Years Lawfully in this Case it is void from the Induction as if he were Dead and the Patron shall present again and not the King see P. 14 Jac. C. B. Rot. 1026 Winchcome and Bishop of Winchester and Puleston's Case Hob. Rep. f. 165 166 167. Noye's Rep. f. 25. M. Rep. f. 877. pl. 1231. Presentment by Simony serves for a turn If one who hath the grant of the next avoidance to a Church present by Simony and his Clerk is received he shall never present again as taking this to be void and so his turn to remain for as to him it is full and he shall not disable his own Act And if a Parson who comes in by Simony sue for Tythes in the Ecclesiastical Court or for his treble damages at Common Law his Parishioners may plead him no Parson because of his Simony for otherwise if the King should present and his Clerk be received he must not pay both and to whom he shall pay it is at his peril upon the Simony or not and if the Ordinary refuse his Plea he may have a Prohibition for it is made void by a Statute Law by which the Spiritual Courts are bound Hob. Rep. f. 168. Noye's Rep. f. 25. and see Tr 10. Jac. C. B. Dr. Hutchinson's son's Case Godb. Rep. f. 202. pl. 288. Note that the Clause of the Act of Precipitate Admissions c. to be avoided Parliament mentioned before in this Chapter which saith that if any Person shall for any sum of Money c. other than for usual Fees Admit Institute c. that every Person so offending shall lose double value of one years profit of every such Benefice c. and that immediately after the Induction such Benefice shall be meerly void c. was made as the Lord Cook saith who was a Member of that Parliament to avoid hasty and precipitate Admissions Institutions c. to the prejudice of them that have Right to present by putting them to a Quare Impedit for no such hast or precipitation is used but for Reward c. as it is to be presumed for there be two great Enemies to Justice and Right viz. Praecipitatio morosa Cunctatio and although the Church be full by the Institution c. against all but the King yet the Church becometh not void by this branch of this Act untill after Induction neither doth it Incapacitate the Clerk from whom such sum of Money or Reward was exacted above the usual Fees but that he may be presented again to the same Living and in all the Cases before mentioned where it is said that they shall forfeit and lose the double value of one years profit c. this shall be accounted according to the true value as the same Living may be Letten and shall be Tryed by a Jury and not according to the Extent or Taxation of the Church whereof one was made both of the Spiritualities and Temporalities in the 28 E. 1. Anno Dom. 1292. in the time of Pope Nicholas the Third and the other in the 26 H. 8. Anno Dom. 1535. in the time of Pope Paul the Third but this last Taxation which is now the
payment of the same All Collectors of Tenths under any Archbishop or Bishop having Letters Patents or other writings of their Office of Collectorship are to be bound by their sufficient writing Obligatory or Recognizance in the Court where the King's revenues of the Tenths shall be answerable in such sum or sums of money as shall be due within their Collection or Office to save and keep the said Archbishop or Bishops harmless and without damage against the King for the same and all such Grants Patents or Writings to such Collectors shall continue no longer in force then during such time as such Archbishop or Bishop who granted the same shall remain Archbishop or Bishop of the same See or Bishoprick whereof he was possessed when he granted the same 7 E. 6 cap. 4. and by the 14 Eliz. cap. 7. the Lands and Tenements Goods and Chattels of such under Collectors of Tenths are made liable to answer the Queen her Heirs and Successors for such sums as they shall gather yearly within their Collection and every Archbishop Bishop and Dean and Chapter sede vacante to whom the Collection of such Tenths shall appertain shall be discharged of so much as shall be satisfied of or by the Lands Tenements Hereditaments Goods oâ— Chattels of such under Collector or his Heirs without any other Warrant whatsoever in that behalf to be obtained 14 Eliz. cap. 7. 13 Eliz. cap. 4. First Fruits in what time to be paid Vicarages not exceeding ten pounds and Parsonages not exceeding ten marks in the King's Books are not to pay any first Fruits as is shewed before and every Incumbent liable to pay first Fruits that lives one half Year after the last avoidance so as he hath or might have received the Rents and Profits of that half Year and before the end of the next half Year he happen to dye or be Lawfully evicted removed or put from the same Promotion Spiritual by Judgment in an action at Common Law without Fraud or Covin then he is to pay but a fourth part of the first Fruits and if he Live one Year and dye or be evicted c. before the next half Year then he is to pay one half of his first Fruits and if he Live one Year and an half and dye or be evicted c. before the end of six Months then next following then he is to pay three parts of his first Fruits and if he Live two Years then he must pay his whole first Fruits for such Promotion Spiritual 1 Eliz. cap. 4. By the 1 Eliz. all Grants Immunities and Liberties given to either of Colleges c. discharged of first Fruits c. the Universities of this Kingdom or to any College or Hall in either of them and to the Colleges of Eaton and Winchester by any of the Kings of England or by Act of Parliament touching the release or discharge of first Fruits and Tenths are to be and remain in full force and strength and that all such conveyances and assurances in Law as were then had or made to either of the Universities or to any College or Hall within either of them or of any of the Parsonages or Benefices Impropriate or of any Patronage for the maintenance of students or learning are good and effectual notwithstanding the same Act of Parliament and all the Possessions of the free Chapel Deanry and Canons of Windsor are discharged of Tenths and first Fruits but all the Rectories and Spiritual Promotions belonging to the Archdeaconry oâ— Wells are made chargeable to the payment thereof and all the Rectories Parsonages and Benefices Impropriate Glebe Lands Tythe Oblations Obventions Pensions Portions and other Profits and Emolluments Ecclesiastical and Spiritual as were in the Survey Rule and Order of the Court of the Dutchy of Lancaster were to continue so And lastly by the same Act it is provided that no Hospital founded and used and the Possessions thereof imployed to and for the use and relief of Poor People or any School or Schools or the possessions or revenues of them shall be charged with the payment of any Tenths or first Fruits 1 Eliz. cap. 4. A demand of Tenths how and where to be made Note that the demand of the Tenths ought to be express and not a summons to pay them at another place as appears by the Case following An Apparator came to the Church to the Parson and said to him that he must pay his Tenths to such an one and at such a place being four miles distant from the Church and the Parson not paying the Bishop certifies according to the Statute that he refused to pay his Tenths and whether this were a good demand or no was the Question and all the Justices agreed that it was not for they said a summons to pay was not sufficient but it ought to be an express demand and by one who hath Authority to receive it M. 39 40 Eliz. C. B. Reyner and Parker's Case M. Rep. f. 541. pl. 714. Bishop's Certificate of what force The Bishop of York certified in the late Court of first Fruits and Tenths Anno 5 6 E. 6. in these words adhibuimus omnimodam diligent per Subcollectores nostros per totam diocesim Eborum Et comperimus I. C. Vicarium de Gargrave Recusantem solvere subsidia Vicariae suae qui nullo modo metu paenarum huiusmodi produci potuisset ad solutionem subsidii praedict sed perseverans in obstinatiori sua malitia and this is left as a quaere in Dyer whether by this Certificate the Vicarage were void or no Dyer f. 116. a. pl. 69. but in Crook's reports it is said there that the Justices held such a Certificate not to be Peremptory but that it may be Traversed for the Bishop doth it only as an Officer and not as a Judge as in Case of Bastardy and here is to be a default in the Parson viz. not payment which is tryable per pais for otherwise all the Parsons in England may be put out of their Parsonages by such nude surmise and bare Certificate without any answer and the Law never intended to make the Certificate so Peremptory as the Book saith and it is there said also that the Officer of the Bishop which is to demand the Tenths ought also to be Authorized to receive them for he cannot appoint them to be paid at another place or to another Person for the Parson is to pay them at his own House and to the Person that demands them in the Name of the Bishop M. 29 30 Eliz. in Scaccario the Queen and Blancher's Case Cro. Eliz. f. 80. pl. 44. Dilapidations cause of deprivation Now we come to Dilapidations which every Clergy Man ought to take care to prevent for there can be nothing worse becoming the Dignity of a Clergy-man than Dilapidations and non residence and as the Canon Law made Provision against it so also hath the Common Law of this Kingdom as appears
If a Writ of Annuity should be brought against a Parson or Vicar upon Recovery in a Writ of Annuity against a Parson binds not the Successor a feigned Prescription or Grant supposed to be made before the Statute and he Prays in aid of the Patron and Ordinary and the Plaintiff obtains a Verdict and all this is done by Practice and Fraud charge the Glebe this shall be void against the Successor for although the Annuity charge the Parson or Vicar and not the Possessions yet this is within the mischief to Wit the impoverishing of the Successor cause of Dilapidations and decay of Spiritual Livings and Hospitality which are the mischiess mentioned in the Preamble Co. Rep. 5 Lib. f. 14. b. Eytru's Case there cited vide Co. Rep. 10 Lib. f. 61. a. Bridg. Rep. f. 30. Plea to a bad where bad A Parson became bound in an Obligation with condition not to be absent from his Benefice by the space of 80 daies in one Year not permute or resign without the consent of the Patron and afterwards he became non resident and the Bond being sued he pleaded the Statute 14 Eliz. by which all Leases of Parsons made of their Benefices and all Obligations for injoying where they are absent by 80 daies et ultra in one Year shall be void and averred that he was absent 80 daies and saith not ultra and this upon demurrer was adjudged an ill Plea for he may be absent for 80 daies and come again in the Night of the 80 day and then the Bond is not void H. 30 Eliz. B. R. Gosnall and Kindlemarsh Case Cro. Eliz. f. 88. pl. 10. 490. pl. 7 M. 37 38 Eliz. B. R. Rot. 31. Earl of Lineoln and Hoskin's Case M. 26 Eliz. B. R. Coxe's Case Leon. Rep. 3 part f. 102. pl. 148. P. 30 Eliz. B. R. S. John and Pettit's Case Leon. Rep. 1 part f. 100. pl. 129. Lease in Reversion not binding to the Successor The Dean and Chapter of Pauls made a Lease of an House in London to one for forty Years which House was then in Lease for 10 Years to another and this Lease was adjudged void by the 13 Eliz. and not warranted by the 14 Eliz. which makes Leases of Houses in Cities to be good for 40 Years so as it be not in Reversion of any other Lease for although this Lease be to Commence immediately yet it is in Law a Lease in Reversion and therefore within the words of the Statute and shall be avoided by the Successors P. 39 Eliz. C. B. Hunt and Singleton's Case Cro. Eliz. f. 564. pl. 25. vide Co. Rep. 3 Lib. f. 60. a. Roll's Cases 1 part f. 159. Acceptance it will make the Lease good where not Note where a Lease is void ipso facto by the Death of the Lessor there no acceptance of the Rent by the Successor will make the Lease good as if a Parson Vicar or Prebend make a Lease not warranted by the Statutes for one and twenty Years rendring Rent and dyes here no acceptance of the Rent by the Successor will affirm the Lease because the same was void without entry or Ceremony but if a Parson Vicar or Prebend make a Lease not warranted by the said Statutes for life or lives reserving Rent and dye and the Successor before entry accepts the Rent or receives fealty of the Tenant then such Lease shall bind him for his time for this being an Estate of freehold cannot be avoided before entry Co. Rep. 3 Lib. f. 65. a. 11 E. 3 Tit. Abbot 9. 8 H. 5. 19. 37 H. 6. 3. 24 H. 8 Tit. Leases Br. 19. F. N. B. 50. Dyer f. 239. b. Acceptance where it bindâ— But if a Bishop make a Lease for Years not warranted by the Statutes and dye if the Successor accepts the Rent he shall not avoid the Lease during his time Co. Rep. 3 Lib. f. 65. a. or if the Bishop appoint a Bailiff to receive his Rents and he receives the Rent from such Tenant amongst the rest of the Tenants who holds by such voidable Lease and pays the same over to the Bishop with the other Rents not acquainting the Bishop therewith and he receives the Rent this is a good acceptance and shall bind the Bishop H. 5 Jac. C. B. between Wheeler and Danby adjudged by the Court Roll's Cases 1 part f. 476 D. 1. vide Cro. Car. f. 95. Where it binds not If a College make a Conveyance in Fee within the 13 Eliz. reserving Rent and the Master dyes and his Successor being Master accepts the Rent and gives a note under his Hand of the recept thereof without putting his Seal to the same and without Authority of the College this acceptance shall not bind the College but they may enter during the Life of the Master who accepted the Rent Roll's Rep. 1 part f. 172. but having I fear Trespassed too much in this Chapter upon the Reader 's Patience I shall here conclude and proceed to the next CHAP. X. How Clergy men are Incapacitated to take Farmes or follow secular Affairs and how they are punishable for incominence by their Superiours and by whose power and Authority Courts Ecclesiastical are to be kept and in whose name and stile their Ecclesiastical Process are to be and with what Seal to be Sealed The Penalty of Spiritual Persons Farmiâ—g Lands c. FOr the more quiet and vertuous increase and maintainance of Divine Service and the Preaching and Teaching of the Word of God with godly and good example and increase of Devotion it is enacted by the 21 H. 8. that no Spiritual Person of what degree soever shall take to farm to himself or to any Person or Persons to his use of any Person whatsoever by Letters Patents Indentures Writings by Word or otherwise by any manner of means any Manors Lands Tenements or other Hereditaments for Term of Life or Term of Years or at Will upon pein to forfeit ten pounds for every Month he or any to his use shall occupy the same by virtue of such Lease or Grant one Moiety to the King and the other to the Informer to be recovered in any of the King's Courts 21 H. 8. cap. 13. The Penalty for buying and selling And it is further enacted that no Spiritual Person or Persons of what Estate or Degree soever they be shall by himself nor by any other for him nor to his buy to sell again for lucre gain or profit in any Markets Faires or other Places any manner of Cattel Corn Lead Tin Hides Leather Tallow Fish Wooll Wood or any manner of Victuals or Merchandize whatsoever on pein to forfeit the treble value of the things so brought to sell again one Moiety to the King and the other to the Informer to be recovered as aforesaid 21 H. 8. cap. 13. In what Cases they may sell goods c. But it is provided by the said Act that