Months yet if the six Months be run out before the Writ to the Bishop taken out the Lapse shall accrew to the Ordinary and his Clerk shall not be removed if he Collate before recept of the Writ and so if after the recovery within the six Months the Defendant brings a Writ of Error and pending that the six Months pass the Lapse shall accrew to the Ordinary but if the Plaintiff in such Case brings a Quare Incumbravit against the Bishop and after the six Months pass there the Lapse shall not accrew to the Ordinary for the Quare Incumbravit prevents it 17 E. 3.75.5 E. 1. 75. Roll's Cases 2 part f. 366 V. 3 4 X. 2. 11 H. 4. 80. Co. Lit. f. 344. b. vide Cro. Jac. f. 93. If the Ordinary be not named in a If the Bishop be named in a Quare Impedit he cannot Câ—llaâ—â— by Lapse Quare Impedit he may Collate by Lapse if the six Months incurr Pendente Lite as is shewed before but if he be named he cannot take advantage of the Lapse but ought to see that the Clerk be served by allowance out of the profits to be taken by Sequestration and as he is bound not to take advantage of any Lapse so is also the Matropolitan and the King for where no Lapse incurrs to the Ordinary there none can incurr to them and so it was adjudged in one Duke's Case as my Lord Cook said and it was said by Popham that the course to stop strangers from presenting Pendente Brevi is after a Quare Impedit brought to sue out a Ne Admittas to the Bishop and if the Bishop then admit the Clerk of any other pending that suit and the Plaintiff recovers he shall have a Quare Incumbravit and thereby remove any who comes in pending the Writ by whatsoever Title he comes in and shall force him who hath right to recover by Quare Impedit but if he sues not out such a Writ of Ne Admittas if then the Incumbent of a stranger should come in by good Title Pendente Brevi he shall barr him in a Scire Facias and shall hold it and note that this Writ of Ne Admittas may be sued out either by the Plaintiff or Defendant in the Quare Impedit to the Bishop vide 21 H. 6. 45. 2 E. 4. 11. b. F. N. B. 37. F. H. 38 B. C. 48 I. If a Man do recover his Presentation in the Common Pleas against the Bishop then he may have a Writ to the same Bishop to admit his Clerk or unto the Metropolitan and after that he may have an Alias Plures and so an Attachment if the Bishop do not execute the Writ see M. 3 Jac. B. R. in the argument of Lancaster and Low's Case Cro. Jac. f. 93. â—f a Bishop be a disturber no Lapse shall incurr by it If the Bishop be a disturber no Lapse shall be by this disturbance although the Church be void six Months so if the Patron present to the Bishop and he will not examine the Clerk but delays him by which the six Months pass yet no Lapse shall accrew to the Bishop by this because he is a disturber and it comes by his own act Tr. 3 Jac. B. R. inter Palmer Smith Roll's Cases 2 part f. 366 V. 5 6. 369 E. 3 4. Note that a Church Parochial may be A Church Parochial may be donative c. donative and exempt from all Ordinary Jurisdiction and the Incumbent may resign to the Patron and not to the Ordinary unumquodque eodem modo quo Colligatum est dissolvitur neither can the Ordinary visit but the Patron by Commissioners to be appointed by him yet a meer Laicus is not presentable to such â— donative but an able Clerk infra sacros ordines for albeit he come in by the Donation and not by Admission or Institution which in this Case is not requisite yet his Function is spiritual and if such a Clerk donative be disturbed the Patron shall have a Quare Impedit of this Church donative and so it is of a Prebend Chantry Chapel donative and the like and no Lapse shall incurr to the Ordinary unless it be specially provided so in the Foundation but if the Patron of such a donative doth once present to the Ordinary and his Clerk is Admitted and Instituted it is by this become presentable and never shall be donative after and if a donative become void and a stranger presents to it and his Clerk is Admitted Instituted and Inducted yet this is no Usurpation to the true Patron but all this is meerly void H. 1 Jac. B. R. inter Fairchild Gayer Co. Lit. f. 344. a. Cro. Jac. f. 63. pl. 1 H. Rep. f. 60 Brownl Rep. 1 part pa. 201. F. N. B. 35 E. An Vsurpation upon a Bishop bindâ— not his Successor If a Bishop suffer an Usurpation of a Church in right of his Bishoprick this shall not bind his successor but himself only during his own time and the successor may have a Quare Impedit or present to the next turn and so it was resolved M. 21 Jac. B. R. inter Dalton Pamphlin and the Bishop of Ely Cro. Jac. f. 673. pl. 6. Jone's Rep. f. 45. Laye's Rep. f. 80. In what Cases Lapse incurs not without notice When the Church doth become void by Deprivation or Resignation or by refusal of the Presentee for Non Ability or for crime in such Case the Bishop ought to give notice thereof to the Patron otherwise no Lapse incurrs but after the six Months past the Patron may have a Writ to the Bishop if the Church remain void and the Bishop hath not Collated thereunto F. N. B. 35 H. I. To what Benefices of the King 's the Chancellor shall present The Chancellor of England shall present to all the King's Churches which are under the value of twenty Marks by the Year which are in the King's gift and in the right of the Crown but if the King have them by any other Title then the Chancellor shall not present unto them F. N. B. 35 R. Note that the Lord Chancellor presented to a Benefice which belonged to the King which was above value and in this Case it was agreed by Hobbert Chief Justice of the Common Pleas and Tanfield Chief Barron that this Presentation remained good till it was avoided Parson and Morlee's Case Winch. Rep. f. 19. To whom Lapse shall incurr Where Lapse incurrs after the first six Months to the Ordinary or Bishop of the Diocess if he present not within six Months after then it goes to the Metropolitan of the Province and if he present not within other six Months then it goes to the King as Supream Ordinary of all Benefices Doct. Student 125. Hughe's gr Abr. 1 part pa. 134. Ca. 1. How many ways a Church may become void Note a Church Presentative may become void five manner of ways viz.
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
had cut divers great Trees of Timber and did not Repair the Church with them and upon Suggestion thereof to the King's Bench and that he would cut more Trees in like manner a Prohibition was thereupon granted by the Court H. 13. Jac. B. R. Knowl's and Hargrave's Case Roll's Rep. 1. part f. 335. pl. 44. and Cook Lord Chief Justice M. 12. Jac. said that a Bishop is only to fell Timber for Building for Fewel and for his other necessary occasions and there is no Bishoprick but the same is of the Foundation of the King and the Woods of the Bishoprick are called the Dower of the Church and these are alwayes carefully to be preserved and if he fell and destroy them upon motion to the Court a Prohibition will be Granted and so it shall be also in the Case of a Dean and Chapter Boul. Rep. 2. part f. 279. Mortuaries where and how to be paid As to Mortuaries observe that by the 21 H. 8. it is Enacted that no Mortuary or Corse present shall be given or demanded of any Person but only in such place where heretofore Mortuaries have been used to be paid and given nor shall any Person pay Mortuaries in more places than one that is to say in the place of his most habitation or dwelling and there but one Mortuary and no Mortuary shall be taken or demanded of any Person whatsoever he be which at the time of his death hath in moveable Goods under the value of Ten Marks Neither shall any Parson Vicar Curate c. nor any of their Farmers Bayliffs or Lessees take for any Person dying or dead and at the time of his death being in moveable Goods to the value of Ten Marks or more his Debts being paid and under Thirty pounds above the sum of Three shillings and four pence for his Mortuary in the whole nor where the Goods amount to Thirty pounds or more above his Debts paid and under Forty pounds above the value of Six shillings and Eight pence for his Mortuary in the whole nor where the Goods amount to Forty pounds or above to any sum whatsoever above his Debts paid more than the sum of Ten shillings for his Mortuary in the whole 21 H. 8. cap. 6. Swin Test part 6. § 16. Godol Or. Legacy f. 148. Nor shall any Parson Vicar Curate Who are to pay no Mortuaries c. or other take demand or ask any Mortuary or any other thing by way of Mortuary of any Woman being Covert Baron nor for any Child nor any Person not keeping House nor for a Wayfaring Man or other that maketh no Residence in the place where they shall happen to dye but the Mortuary of such Wayfaring Man shall be answerable in places where Mortuaries are accustomed to be paid in Manner Form and Rate before mentioned and not otherwise in the places where such Wayfaring Persons at the time of their death had their most Habitation House and dwelling places and no where else 21 H. 8. cap. 6. Swin part 6. § 16. Godol f. 148. Where Mortuaries 〈◊〉 not to be 〈◊〉 No Mortuaries nor Corse present â—or any Sum of Money or other thing for them shall be demanded or had in the Parts of Wales nor in the Marches of the same nor in the Town of Barwick nor Marches of the same but only in such places where Mortuaries have been accustomed to be paid neither shall any Mortuaries or Corse present nor any thing for the same be demanded or had in those places but only after the order and manner above specified and none otherwise nor of any other Person than is above Limited But it is made Lawful for the Bishops of Bangor Landaffe St. Davids and St. Asaph and likewise to the Arch-deacon of Chester to take such Mortuaries of the Priests within their Diocesses and Jurisdictions as heretofore have been accustomed 21 H. 8. Cap. 6. Swin part 6. § 16. Godol f. 148. And in such places where Mortuaries Mortuaries to be paid according to Custom c. have been accustomed to be taken of less value than is aforesaid there they shall not be compelled to pay any other Mortuaries or more for any Mortuary than hath been accustomed nor shall any Mortuary be demanded taken or had in such place of any Person or Persons exempted by the Act nor contrary to the said Act And if any Parson Vicar Curate c. or their Farmers Bayliffs c. do take receive or demand of any Person within this Realm for any Person dying within the same a Mortuary c. more than is before mentioned or do Convent or call any Person or Persons before any Judge Spiritual for the Recovery of any such Mortuary c. more than is before mentioned he shall forfeit for every time so demanding conventing c. so much in value as he shall take above the Sum Limited and also Forty shillings to the Party grieved contrary to the Act to be Recovered in any of the King's Courts c. but it is Lawful for any Spiritual Person to take any Sum of Money or other thing which by any Person dying shall be given or bequeathed unto him or to the High Altar of the Church 21 H. 8. cap. 6. and all fraudulent Deeds made to deceive any of their Mortuaries are made void by the 13 Eliz. cap. 5. Prohibition lyes not when The King's Prohibition doth not lye when any Oblations Obventions or Mortuaries where Mortuaries have been used to be paid be by those Names demanded in any Ecclesiastical Court although for the long with-holding of the same they be esteemed at a certain Sum of Money Articl Cleri 9 E. 2. cap. 1. vide Co. Inst 2. part f. 491. 619. but Doctor and Student Lib. 2. cap. 55. saith a Prohibition doth lye Quaere And where Mortuaries are due they How Mortuaries are payable ought to be paid out of the Death's part only and not out of the whole before division where by the custom of the Country the Widow and Children are to have their Reasonable parts by the opinion of Dr. Swinburne and his Reason is because a Mortuary is of the Nature of a Legacy and Termed in Law the Principal Legacy And being that Legacies are to be paid out of the Death's part therefore the Mortuary is to be paid out of the same part but before any other Legacy and without any defalcation as well for that it is a Principal Legacy as by force of the Statute aforesaid Swin Test part 6. § 16. in fine Six things due to the King upon the death of every Bishop After the Death of every Bishop there is a Duty due to the King which some have called a Mortuary but the Lord Cook saith it is not any Mortuary but he saith true it is that the King after their Deceases hath Six things viz. Optimum Equum sive Palefridum ipsius Episcopi cum Cella Freno 2. Vnam Chlamydem sive
is not good to bind the Successor but if a Bishop had two Chapters and one of them surrender without the Bishop's Licence is suspended or dissolved then the confirmation of the other is sufficient and this question coming in debate amongst the Justices in Ireland in a Case concerning a Lease made by the Bishop of Dublin and the Justices there being divided in Opinion Dyer and the rest of the Justices of the Common Pleas here in England were all of Opinion that after surrender c. such a Confirmation by one Chapter was good though formerly it used to be by both and a Certificate thereof was made accordingly of their Opinions to Sir Henry Sidney Knight Lord Debuty of Ireland P. 11 Eliz. Dyer f. 282. b. pl. 26. and see Roll's Cases 1 part f. 477 H. 4 5 and 6. Confirmation before Inrollment good c. If a Bishop make a Lease to the King for Years and before Inrollment thereof the Dean and Chapter confirms it and after the Lease is Inrolled this is a good Confirmation for this is only an Assent which may be as well before the Lease as after Tr. 8 Jac. in Scaccar Sir Edward Dimmock's Case Roll's Cases 1 part f. 478. but a Confirmation after the Death of the Bishop comes too late by the Opinion of Catlin Southcoâ—e and Windham Harur's Rep. M. 14 and 15. Eliz. Grants c not warranted by the Statutes bind the Grantors And note that although it be said â—y the 1 Eliz. 13 Eliz. that all Grants Leases c. made granted c. other then Leases for three Lives â—â— one and twenty Years according â—â— those Acts should be utterly void and of none effect to all Intents Constructions and Purposes yet Grants or Leases c. not warranted by those Statutes though they are void against the Successor yet they are good and shall bind the Grantor or Lessor if it be a Sole Corporation or so long as the Dean or other Head of the Corporation remain if it be a Corporation agregate of many for the Statute was made in benefit of the Successor Co. Lit. f. 45. a. Co. 3 Lib. f. 59 b. 60. â— P. 39 Eliz. C. B. Hunt and Singleton's Case there cited to be so adjudged Brow Rep. 2 part f. 134 135. Godâ— Rep f. 302. vide P. 10 Jac. Waltâ—â— and Dean and Chapter of Norwich Case M. f. 875. pl. 1223. in fine Câ— Rep. 10 Lib. f. 59. a. 11 Lib. f. 73. a Confirmations by whom â—o be made Observe that concurrent Leasâ—â— made by Archbishops and Bishops aâ—â— to be confirmed by the Dean and Chapter or Deans and Chapters if there bâ— several Chapters Grants made by Dean are to be confirmed by the Bishop and Chapter Grants made by â— Archdeacon or Prebend by the Bishoâ— Dean and Chapter Dyer f. 61. a. â— 30 Roll's Cases 1 part f. 481. P. â— 3. and the Grants of Parsons and Vâ—cars are to be confirmed by their Patrons and Ordinaries Co. Rep. 11 Lib. f. 77. a. Roll's Cases 1 part f. 481 Q. 2. and Grants by an Incumbent of a Donative by the Patron alone Roll's Cases 1 part f. 481 R. 1. and where the Patron of a Prebend then the King and Dean and Chapter and not the Bishop ought to confirm Confirmation of the Bishop alone where good Where a Parson of a Church of which the Bishop is Patron and Ordinary makes a Lease which is confirmed by the Bishop without the Dean and Chapter who ought to have joyned and afterwards the Parson dyes and the Bishop Collates another to the Benefice who makes a Lease of his Parsonage which is confirmed by the Bishop and Dean and Chapter and afterwards the Bishop is Translated in this Case it was held the first Lease was good and that it should be binding during the Life of the Bishop and Successor Incumbent who found the Church charged P. 19 Eliz. C. B. Dyâ—r f. 356. b. pl. 42. so if a Prebend make a Lease and the Bishop being Patron confirms it though this be not good to bind the Successor of the Bishop yet this shall bind the Bishop during his Life and all claiming under him for the Confirmation of the Dean and Chapter is required only that the Possessions be not aliened in prejudice of the Successor and so it was agreed in point in Smyth and Bowl 's Case Tr. 15 Jac. B. R. Roll's Cases 1 part f. 479 M. 2 3. f. 481. P. 2. vide Leon. Rep. 1 part f. 235. Assent a good Confirmation If a Dean Lease any of his Possessions of which he is Sole seized with the Assent of the Chapter this is a good Confirmation because the Dean hath solely the Estate and the Writ desine assensu Capituli does prove that there needs only an Assent and if a Dean be Sole seized and not with Chapter of certain Possessions and Lease them by these words in the Deed quod Deoanus ex assensu totius Capituli dâ—misit and the Seal of the Chapter â—â— put to the Deed this is a good Confirmation for it is a good Assent but the Dean and Chapter are jointly seized and the Dean Leases with Assent of tâ—â— Chapter and annexes the Seal of tâ—â— Chapter to the Deed this is void aâ— shall not bind the Chapter becauâ—â— they have an Estate in them as well the Dean hath in him and may maâ—â— P. 10 Jac. B. R. inter Tomlinson and Crook so agreed vide 21 H. 7. 7. Hil. 29 H. 8. C. B. Chasin's Case Dyer f. 42. b. pl. 72. Roll's Cases 1 part f. 478 R. 1. 2. 4. Confirmations when void Grants by Parsons Vicars Prebends c. after Collation Admission and Institution and before Induction or Installation although confirmed as aforesaid are not binding to the Successor for Persona Ecclesiae nunquam dicitur Impersonat ' ante inductionem nec habet jus in re sed ad rem ante inductionem P. 5. Eliz. C. B. Dyer f. 221. pl. 18. Confirmation for part of the Term good If a Parson Vicar Prebend c. make a Lease for Years the Land may be confirmed to the Lessee for part of the Term that is for so many Years thereof but if dimissionem praedictam be confirmed for part of the Term et â—â—n ultra that would be absurd and reâ—ugnant and would stand good for the whole Term and as such Lease may be confirmed for part of the Term so it â—ay for part of the Land M. 16 17. Eliz. C. B. Dyer f. 338. b. pl. 43. f. â—2 b. pl. 4. vide M. 37 38 Eliz. C. â— Bellfore and Foord's Case Cro. Eliz. f. â—47 pl. 12. f. 472. pl. 34. Co. â—ep 5 Lib. f. 81. A Parson made a Lease which was Succeeding Patron c. confirms and good confirmed by the succeeding Bishop and Patron neither of them being Bishop or Patron when the Lease was made
the Universities c. or otherwise Lawfully Authorized or charged by reason of his or their Cure Benefice or other Spiritual Promotion or Charge in any of his or their open Sermon Preaching or Collation that he or they shall make Declare Preach or Pronounce in any Church Chapel Church-yard or in any other place or places used or appointed to be Preached in or if any Person c. do maliciously willingly or of purpose molest let disturb vex disquiet or otherwise trouble any Parson Vicar Parish Priest or Curate c. saying doing singing Ministring or Celebrating Divine Service Sacraments c. that at any time after the said Statute shall be allowed set forth or Authorized c. The Offenders herein upon Conviction before two Justices of the Peace by two sufficient Witnesses or their own Confession may be committed by the said Justices to the Gaol without Bail or mainprize for three Months and after that to the next Quarter Sessions where if upon the appearance there they Repent and be Reconciled then to be discharged of Imprisonment finding sufficient suerties for their good Behaviour for one whole year then next ensuing and if they refuse to be reconciled and repent then to be continued in the Gaol without Bail c. until they shall be reconciled and repent 1 Mar. Sess 2. cap. 3. The penalty against such as rescue disturbers of Ministers If any person shall unlawfully rescue any Offender in the premisses aforesaid or hinder the Offender or Offenders to be Arrested such rescuer or disturber is to suffer Imprisonment as aforesaid and forfeit five pounds to the Queens Majesty her Heirs and Successors and if the Town suffer such Offender to escape and be lawfully presented for it at the next Quarter-Sessions then the Town forfeits five pounds in like manner such Offenders as are punished in the Ecclesiastical Court are not to be punished by the Justices neither are such as be punished by the Justices to be troubled by the other Court 1 Mar. Sess 2. cap. 3. An Action of false Imprisonment was brought against four Justices of Peace by one who had disturbed a Preacher and adjudged it did not lye Although this Statute was made in time of Popery yet it is still in force as to the Offences before mentioned for in the 10. year of King James one Creswick brought an Action of false Imprisonment against four Justices of the Peace and they justified the Imprisonment upon this Statute and set forth that the Plaintiff disturbed one Robert Thompson a Licensed Minister and hindred his Preaching in the Church of 〈…〉 in the County of York and so they committed the Plaintiff to Prison and upon a Demurrer to this Plea it came to be argued and was strongly debated several Terms but at length in Hill Term 11 Jac. Judgment was given against the Plaintiff Creswick by all the Judges Tr. 10 Jac. Rot. 1647. B. R. Creswick against Rookby alium Bolst Rep. 2. part fo 47 48 49 50 51 52 53. The like case Also one Cross brought an Action of false Imprisonment against one Stanhop and other two Justices of Peace in the County of York and they Justified the Imprisonment by reason of this Statute 1 Mar. cap. 3. for disturbing Preachers and the Plaintiff demurred to their Plea and upon argument it was adjudged against him Hill 11. Jac. B. R. Cross and Stanhop's Case Godbolts Rep. fo 246. pl. 343. By whom the Parish Clark is to be chosen The Minister Parson or Vicar is to chuse the Parish Clark which said choise is to be signified by the Minister Vicar or Parson to the Parishioners the next Sunday following in the time of Divine Service and the Clark is to be twenty years of Age at least and of honest Conversation and sufficient for his Writing Reading and also for his competent Singing if it may be which Clark so chosen shall receive their antient wages without fraud or diminution either from the Church-Wardens at the accustomed time or by their own Collection according to the custom of the Parish Can. 91. but if the Parish have a custom contrary to this Canon then the custom is to be observed and not the Canon as appears by several Cases in Rolls Cases 2 part fo 286. All Church-Wardens Questmen By whom Church-Wardens c are to be chosen Sidemen or Assistants in every Parish are to be chosen by the joynt consent of the Minister and Parishioners if it may be but if they cannot agree then the Minister to chuse one and the Parishioners another Can. 89. 90. but where there is an antient custom in any Parish for the choise of Church-Wardens contrary to the Canon in such case the custom is to be observed for if the Parishioners of a Parish have used time out of mind to Elect one Church-Warden and the Vicar another and afterwards a Canon is made that the Vicar shall Elect two and he doth so accordingly and the Parishioners Elect one according to their Custome and the Ordinary dissallows him and establisheth the other two in this Case a Prohibition shall be granted P. 5 Jac. B. R. the Parishioners Case of Rovenden in Kent Roll's Cases 2 part f. 287. The like A Prohibition was granted against a Church-Warden chosen by the Parson of S. Magnus â—igh London-bridge by force of a Canon upon a surmise that the Parish hath a Custom to choose two Church-Wardens Tr. 7 Car. 1. B. R. between Shirly and Brown the like between Draper and Stone for Abchurch in London P. 4. Car. 1. B. R. Rot. 420. Roll's Cases 2 part f. 287. the like against a Church-Warden chosen by the Parson of Alhallows London P. 17 Jac. B. R. Warner's Case and P. 5 Jac. the Parishioners of Walbrook's Case in London Cro. Jac. f. 532. the like against a Church-Warden chosen by the Parson of S. Thomas in London Tr. 15 Car. B. R. Evelyn's Case Cro. Car. f. 551. and Jo. Rep. f. 453. the same Case and see also the Case of the Parishioners of Ethelborough in London Mar. Rep. p. 22. pl. 50. and pa. 67. pl. 104. The right of the Church and Church-yard are in the Parson The Parson hath the right of the Church and Church yard in him and if the Walls Windows or Doors of the Church be broken down or the Trees in the Church-yard be cut down or the Grass thereof be eaten up the Parson or Vicar and not the Church-Wardens shall have an action for it Quare vi armis domum clausum fregit c. 8 H. 6. f. 9. but for Ornaments in the Church or Bells in the Steeple or a seat in the Church taken away the Parson here shall not have the action for such things but the Church-Wardens must sue for them and if the Coat of Armour or Scutchions or Pendants of Arms that are hung in the Church or Chancel in Honour of the party buried or the Grave Stone laid over
1 by Death 2 by Creation 3 by Resignation 4 by Deprivation 5 by Cession as by taking a Benefice Incompatible Co. Lit. f. 120. a. Doder pa. 7. If a Church be Litigious as where two Patrons present to the same Church When the Bishop may award a Jure Patronatus by several Titles and the Bishop knows not which hath the very true and rightful Title to the same and so knows not which Clerk to admit with safety least by admitting the one and refusing the other he become a disturber in this Case the Bishop may award a Jure Patronatus to inquire who is the true and undoubted Patron and who ought to present to the Church for that turn and this Writ is usually obtained at the Prayer of one or both Parties to such Commissioners as the Bishop thinks good to name who send their Mandate to some Officer of their own to summon a Jury who are to be one half Clerks and the other half Lay-men and after they are sworn they hear the Evidence and are to give their Verdict to the Commissioners but the Bishop is not bound to award this Writ ex Officio but at the Prayer of the parties 8 E. 4. 24. b. per curiam 5 H. 7. 20. b. per Reeble 22 H. 6. 30. per Mark 34 H. 6. 40. 35 H. b. 19. b. vide Rolâ—'s Case 2 part f. 384 P. 1 2 3 4 5 6 7 8 9 10 11 12. P. 26 Eliz. C. B. Gerrard's Case Leon. Rep. 2 part f. 168. pl. 205. Deg. cap. 3. But note the Verdict upon this Inquest is neither binding to the Bishop The Verdict upon a Jure Patronatus not binding nor the parties in some respects for the Bishop may accept the Clerk of him against whom the Verdict doth pass if he please but then it is at his Peril for if the other party bring a Quare Impedit and recover then the Bishop will be found a disturber but if the Bishop admits the Clerk of him for whom the Verdict is given then if the other bring a Quare Impedit and recover yet if the Bishop plead this special matter it shall excuse him though it bind not the other parties right and of this Opinion was my Lord Hobbert in his argument in the Case between Sir William Elvis Knight and the Archbishop of York and Taylor and Bishop Hob. Rep. f. 317 318. CHAP. VI. Of Pluralities Dispensations and non residence If one have a Living with cure of eight pounds vallue aâ—d accept aâ—other the first is void NOte that by the stat 21 H. 8. it is enacted that if any Person or Persons having one Benefice with cure of Souls being of the yearly value of eight pounds or above accept and take any other with cure of Souls and be Instituted and Inducted in possession of the same that then and immediately after such possession had thereof the first Benefice shall be adjudged void and it shall be Lawfull for every Patron having the Advowson thereof to present another and the Presentee to have the benefit of the same in such manner and Form as though the Incumbent had dyed or resigned any Licence Union or other Dispensation to the contrary notwithstanding 21 H. 8. cap. 13. the yearly value of eight pounds or above is usually taken to be according as Benefices were rated in the 26 of H. 8. and is now made use of in the first fruits office but some hold that it shall be taken according to the very true improved value Ideo Quaere vide pa. 128. Who may have Plurality of Livings But there is a Proviso in the same Statute that all Spiritual Men which are of the King's Council may purchase Licence or Dispensation to take and keep three Parsonages or Benefices with cure of Souls and that all others being the King's Chaplains and not sworn of his Council and the Chaplains of the Queen Prince or Princess or any of the King's Children Brethren Sisters Uncles or Aunts may purchase Licence or Dispensation to receive and keep two Parsonages or Benefices with cure of Souls and so the eight Chaplains of every Archbishop the six Chaplains of every Duke the five Chaplains of every Marquess and Earl the four Chaplains of every Viscount the six Chaplains of every Bishop the three Chaplains of the Chancellor of England and of every Baron and Knight of the Garter the two Chaplains of every Dutchess Marchioness Countess and Baroness being Widows the two Chaplains of the Treasurer and Controller of the King's House and of the King's Secretary Dean of his Chapel Almner and Master of the Rolls may also procure Licence or Dispensation to receive and keep two Parsonages or Benefices apiece with cure of Souls 21 H. 8. cap. 13. and the Chief Justice of the King's Bench and Warden of the Cinque Ports may keep one Chaplain apiece who may Purchase Licence or Dispensation to receive and keep two Parsonages or Benefices with cure of Souls and so may the Brethren and Sons of all Temporal Lords and of every Knight who are born in Wedlock and all Doctors and Batchellors of Divinity Doctors of Law and Batchellors of Law Canon and every of them which shall be admitted to any of the said degrees by any of the Universities of this Realm and not by Grace only may also purchase Licence or Dispensation to receive and keep two Parsonages or Benefices with cure of Souls and it is provided that every of the Chaplains abovesaid so purchasing Licence and Dispensation to receive and keep Benefices with cure of Souls as abovesaid shall be bound to have and exhibite where need shall be Letters under the sign and Seal of the King or other their Lord and Master testifying whose Chaplains they be or else not to enjoy any such Plurality of Benefices by being such Chaplains 21 H. 8. cap. 13. None to take more Chaplains then above Limited to advance them to Plurality of Benefices Note that it is provided that no Person or Persons to whom any number of Chaplains or Chaplain by any of the Provisions aforesaid is Limited shall in any wise by colour of any of the same Provisions advance any Spiritual Person or Persons above the number to them appointed to receive or keep any more Benefices with cure of Souls than is above Limited and if they do then every such Spiritual Person and Persons so advanced above the said number to incurr the pain and penalty contained in the said Act and it is further provided that every Dutchess Marchioness Countess and Baroness Widdows that shall take any Husbands under the degree of a Baron may take such number of Chaplains as is above Limited to them being Widdows and that every such Chaplain may purchase Licence to have and take such number of Benefices with cure of Souls in manner and Form as they might have done if their said Ladies and Mistresses had kept themselves Widdows 21 H. 8. cap. 13.
by the Books of 20 H. 6. 46. a. 2 H. 4. 3. b. 29 E. 3. 16. a. for if Spiritual Persons waste the Lands Woods or Houses of their Churches they may be deprived or deposed by their Superiours who have the Visitation and Superiority over them Roll's Rep. 1 part f. 167. Godb. Rep. f. 259. pl. 357. Grants to avoid remedy for Dilapidations made void And by the 13 Eliz. it is enacted that if any Archbishop Bishop Dean Archdeacon Provost Treasurer Chaunter Chancellor Prebendary or any other having any Dignity or Office in any Cathedral Church within this Realm or if any Parson Vicar or other Incumbent of any Ecclesiastical Living whereunto do belong any House or Houses or other buildings which by Law or Custom he is bound to keep and maintain in reparation do make any deed or deeds of gift or alienation or other like conveyances of his moveable Goods or Chattels to defeat or defraud his Successor of his just action and remedy then in such Case the Successor may have the same remedy in the Spiritual Court against the Grantee of the same Goods Chattels for reparation of the Dilapidations as he might or should have had against the Executors or Administrators of the Predecessor for the same 13 Eliz. cap. 10. And such fraudulent deeds also to defraud Persons of their just Debts Suits Accompts Dammages Penalties Forfeitures Herriots Mortuaries and Reliefs by another Act in the same Parliament are made void to such Persons to whom any such thing is due and to their Heirs Successors Administrators and Assigns and those whoshall set such Covenous and Fraudulent deeds afoot being privy to or knowing of the same forfeit the value of all such Goods and Chattels and all such money as shall be contained in such covenous and fained Bond one Moiety to the King and the other to the party grieved to be recovered in any of the King's Courts of record 13 Eliz. cap. 5. Moneys recovered for Dilapidations to be imployedure pairs By the 14 Eliz. it is enacted that all sums of money that shall be recovered for or in the name of Dilapidations by Sentence Composition or otherwise shall within two Years after the recept be truly imployed upon the Buildings and Reparations in respect whereof such money for Dilapidations shall be paid on pein that every Person so receiving and not imploying as aforesaid shall forfeit double as much as so by him shall be received and not imployed the which forfeiture shall be to the use of the Queens Majesty her Heirs and Successors 14 Eliz. cap. 11. A Prohibiâ—ion lies against one that would wast the Woods of the Church If a Parson of a Church and one A. are Tennants in Common of a Wood and A. endeavours to make waste in the Trees the Parson for preservation of the Timber Trees may have a Prohibition against him that he shall doe no waste and the reason thereof as the Chief Justice said was that if the Parson of a Church would waste the Inherritance of his Church to his private use in cutting down the Trees the Patron may have a Prohibition against him for the Parson is seized in right of his Church and his Glebe is the Dower of his Church for he is Indowed thereof and so say many ancient records and so because a Prohibition lies against him it is reason that he shall have the same remedy against him who holds in Common with him F. N. B. 49 Co. Rep. 11 Lib. f. 49. a. The Lord Cook saith there was a notable Resolution in Parliament held A Prohibition granted against the Bishop of Durham 35 E. 1. at Carlisle 35 E. 1. against Clergy-men making waste of their Spiritual Promotions I shall set it down verbatim as he inserts it viz. Voile Nostre Seignior Le Roy entendre que Sir Anthony Evesque de duresme waste destruit tout le Bois apperteinant à Son Esglise in Lenesquerie de duresme per done vende manuais gard per rearer des forge de Ferre Plombe ardre Carbons c. dot si Nostre Seignior Le Roy que est Avowee del Esglise ny ymit remedie Lefglise avandit serra dishâ—rite impoverie in prejudice de nostre Seignior Le Roy in sa Corone de Chapter de duresme To which the answer was Inhibeatur per Breve de Cancellaria Episcopo Ministris suis ne faciat vastum de contentis in Petitione by which it appears that the Parliament referrs him to the ordinary remedy of the Common Law by Writ of Prohibition in such Case 35 E. 1. Co. Rep. 11 Lib. f. 49. a. vide Roll's Rep. 1 part f. 86. 176. 335. And the Lord Cook saith further A Prohibition granted against the Bishop of Dublin c. that M. 23 E. 1. amongst the Judgments before the King Hunt f. 83. in the Treasury of the Exchequer it is thus adjudged quod Ecclesia est infra aetatem et in custodia domini regis qui tenetur jura et haereditates ejusdem manutenere et defendere et Rot. patent Anno 14 H. 3 M. 8. Archiepiscopus Dublin fecit finem de 300 marcis deafforestroatione forestae Archiepiscopatus sui and see 2 H. 4. f. 3. b. If a Bishop or Archdeacon pull down and cut all the Woods which he hath he shall be deposed as a Dilapidator of his House 29 E. 3. 16 Ac. and see 27 Ass pl. 10. 20 H. 6. 46 Co. Inst 3 part f. 304. And the Tratise Intituled Ne Rectores prosternant arbores in coemeterio c. is no more but a Declaration of the Common Law and it is regularly true meliorem conditionem Ecclesiae facere potest Praelatus deteriorem nequaquam Co. Rep. 11 Lib. f. 49. b. Where suits for Dilapidations are to be Although suits for Dilapidations are most properly to be sued in the Spiritual Court and if any Prohibition be granted the same ought to be superseded by a Consultation as F. N. B. saith f. 50. F. yet this is intended where the suit is grounded upon the Canon Law for by the Custom of England the Successor may have a special Action upon the Case against the Dilapidator his Executors or Administratros and in the King's Bench it was agreed by all the Justices that a Prohibition is grantable against one who wasts the Houses of a Parson Incumbent or cuts the Trees or makes waste and sells them and does not employ them for repairs vide 2 H. 4 3. M. 12. Jac. B. R. Bishop of Salisbury's Case Godb. Rep. f. 259. pl. 357. H. 13. Jac. B. R. Saccar's Case M. Rep. f. 916. pl. 1303. and so it was also agreed M. 12 Jac. B. R. Stockman's and Wither's Case Roll's Rep. 1 part f. 86. pl. 34. vide f. 335 Boulstr Rep. 3 part f 91 92. The Vicar of the Parish of Alesbury For what use Clergy-men may fell down Wood. in Devon-shire