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.
Instituo te Rectorem talis Ecclesiae cum cura Animarnm accipe curam tuam meam c. And note that every Rectory consists of Spiritualities and Temporalities and as to the Spiritualities to wit Cura animarum he is compleat Parson by the Institution and may celebrate Divine Service Preach c. but not to the Temporalities as to the Glebe c. for he hath no freehold in them till his Induction vide Hare and Buckle's Ca. Plo. Com. f. 528. Co. Lit. f. 344. a. and Hill 41 Eliz B. R. Digbie's Ca. Co. Rep. 4. Lib. f. 79. a. Hughe's Grand Abridgm 1. part p. 135. Ca. 7. Goldes Rep. p. 163. and 164. and vide 32. H. 6. 28. b. and 33. H. 6. 24. and Hughe's Parson's Law cap. 11. A Bishop may Institute out of his Diocess Note That the Bishop may Institute a Clerk as well out of his Diocess as within it for as to this matter it is not local but follows the Person of the Bishop wheresoever he goes Cro. Car. f. 342. Hughe's Gran. Abridgm 1 part p. 134. Ca. 7. and vide 21. Jac. B. R. in Knowle's and Dobbin's Case Godbolt's Rep. p. 342. pl. 446. Hughe's Parson's Law cap. 11. and 27 Eliz. C. B. Carter and Croft's Case None to be admitted to any Living till he be a Priest in Orders But observe that none can be admitted to any Living till he be a Priest in Orders which he cannot be by the Statute of Uniformity till he is four and twenty Years of Age and if any Person shall be Admitted Instituted and Inducted into any Living before he is in Holy Orders his Admission Institution and Induction are void 14. Car. 2. cap. 4. And every Clerk before his Admission to be Incumbent must subscribe the Every Clerk to subscribe to his Declaration before his Admission to a Living Declaration following to wit I. B. C. ' do declare that it is not Lawfull upon any pretence whatsoever to take Arms against the King And that I do abhor that Trayterous Position of taking Arms by his Authority against his Person or against those that are Commissioned by him And that I will conform to the Liturgy of the Church of England as it is now established by Law And I do declare that I do hold there lies no Obligation upon me or any other Person from the Oath commonly called the Solemn League and Covenant to endeavour any change or alteration of Government either in Church or State And that the same was in it self an unlawfull Oath and imposed upon the Subjects of this Kingdom against the known Laws and Liberties of this Kingdom 14. Car. 2 cap. 4. After the five and twentieth Day of March 1682. There shall be omitted out of the said Declaration or acknowledgment the latter part thereof-beginning And I do declare that I do hold there lies no Obligation on me or any other Person from the Oath c. After this Subscription made every A Certificate to be procured after Subscription and the same to be read within three Months Parson Vicar Curate and Lecturer is to procure a Certificate under the Hand and Seal of the respective Archbishop Bishop or Ordinary of the Diocess who are to deliver the same upon demand and shall publickly and openly read the same together with the declaration or acknowledgment aforesaid upon some Lord's day within three Months then next following in his Parish Church where he is to Officiate in the time of Divine Service before all the Common-Prayer be ended in the presence of the Congregation there assembled upon pein to loose his Parsonage Vicarage or Benefice Curate's place of Lecturer's place and shall be utterly disabled and ips facto deprived of the same And that the said Parsonage Vicarage or Benefice Curate's place or Lecturer's place shall be void as if he were naturally Dead 14. Car. 2. cap. 4. What Induction is and how to be performed When the Bishop hath Instituted the Clerk the Ordinary c. makes a Mandate under Seal to the Archdeacon of the place or to such other Clergy-men as he pleaseth to Induct the Clerk and it may be done by the Dean and Chapter by Prescription but not by the Patron and the usual way of Induction is by the delivery of the Bell-Rope to the new Parson who is to toll the Bell that the People may thereby take notice when the Archdeacon inducts the Parson his Fee is 40 Pence but a Donative may pass by the gift of the Patron without Institution or Induction 8. Ass pl. 13. Davis Rep. f. 46. b. Roll's Cases 2 part f. 356. B. 1. and 357. C. 2 3 4 5 6 7 Deg. cap. 2. vide 38. E. 3. 3. b. 11. H. 4. 9 and 10. What Remedy where the Archdeacon refuseth to Induct If the Archdeacon will not Induct the Clerk after such time as the Bishop hath admitted and Instituted him and directed his Mandate to the Archdeacon to admit him some have been of Opinion that the Clerk may have an action of the Case against him because the Induction is a Temporal act but others are of Opinion and so it was adjudged p. 13. Eliz. C. B. that a Citation shall be awarded in such Case out of the Spiritual Court against the Archdeacon to answer the same there where he shall be punished if there be Cause because the Archdeacon may alledge some special Cause which by the Spiritual Ecclesiastical Law the Clerk ought not to be Inducted which Cause may not be triable or determinable in the Temporal Court Fitz. N. B. 47. H. Hughe's Par. Law cap. 12. Ecclesiastical Persons to take the Oath of Supremacy All and every Person and Persons that shall be Preferred Promoted or Collated to any Archbishoprick or Bishoprick or to any other Spiritual Promotion or Ecciesiastical Benesice Promotion Dignity Office or Ministery before he or they take upon him or them to Receive Use Exercise Supply or Occupy any such Promotion they shall take the Oath of Supremacy before such Persons as have Authority to admit any such Person to any such Office or Ministery 1 Eliz. cap. 1. 5 Eliz. cap. 1. Clerks to swear Canonical Obedience And when any Clerk is admitted and instituted to any Benefice he is usually sworn also to Canonical Obedience to his Diocesan Co. Inst 4 part f. 324. The form of the Oath of Supremacy The form of the Oath of Supremacy is as followeth viz I. A. B. ' do utterly declare and testify in my Conscience That the King's Highness is the only Supream Governor of this Realm and of all other his Majestie 's Dominions and Countries as well in Spiritual or Ecclesiastical things or Causes as Temporal and that no foreign Prince Person Prelate State or Potentate hath or ought to have any Jurisdiction Power Superiority Preeminence or Authority Ecclesiastical or Spiritual within this Realm And therefore I do utterly renounce and forsake all foreign
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
of Religion and being Convented before the Bishop of the Diocess or the Ordinary shall persist therein or not revoke his Error or after such revocation affirm the same again either of these Offences shall be just cause to deprive such Person of his Ecclesiastical Promotions and the Bishop of the Diocess or the Ordinary may deprive him 13 Eliz. cap. 12. The Sacrament to be Administred in both kinds Every Minister is to administer the Sacrament of the Lord's Supper in both kinds that is to say of Bread and Wine to every Person that humbly and devoutly desires it and shall at least one day before exhort the People to prepare themselves for it 1 Eliz. 6 cap. 1. And the forfeiture for using any other Form of Administration of the Sacraments of Baptism and the Lord's Supper than is set down in the Book of Common Prayer for the first second and third Offence you may see before in this Chapter The Penalty for depraving the Sacrament of the Lord's Supper or Administring the same not being Ordained a Priest If any Person shall deprave despise or contemn the Sacrament of the Lord's Supper by any contemptuous words and be thereof lawfully convicted within three Months after such Offence committed by a Jury of twelve men upon the Testimony of two lawful Witnesses in any of the four quarter Sessions he is to be Imprisoned and make Fine and Ransome at the King's Will and Pleasure 1 Eliz. 6. cap. 1. And he that shall Administer the Sacrament of the Lord's Supper who is not Ordained a Priest according to the Book of Common Prayer forfeits an hundred pounds 14 Car. 2 cap. 4. Ministers to give notice the Sunday before they Administer the Sacrament the Parishioners to Communicate three times in the year and every Minister who keeps a Curate must twice every year Administer the Sacraments himself c. Every Minister is to give warning to his Parishioners publickly in his Parish Church at Morning Prayer the Sunday before every time of his Administring the Sacrament for their better preparing of themselves and every Parishioner is to Communicate at the least three times in the year whereof Easter is to be one and the Minister is first to receive it himself and deliver it in both kinds to every Communicant severally and no Bread and Wine newly brought in must be used before the words of Institution be rehearsed when the Bread and Wine are upon the Table and every Minister possessed of a Benefice with Cure who keeps a Curate under him and every other Stipendary Preacher that readeth any Lecture Catechiseth or Preacheth in any Church or Chapel must twice every year upon two several Sundays Forenoon and Afternoon in his Church or Chapel read Divine Service himself and as often every year Administer the Sacraments of Baptism if there be any to be Baptised and of the Lord's Supper upon pain of Suspension or Removal from his place by the Bishop of the Diocess until he submit to perform the said Duties And no Minister is to Preach or Administer the Communion in any private house except in Case of Necessity where one is so Impotent that he cannot goe to the Church and being dangerously sick desires to receive the Communion upon pein of Suspension for the first Offence and Excommunication for the second but in houses where there are Chapels allowed by the Ecclesiastical Laws the Chaplains may Preach or Administer the Communion in such houses in the Chapels there only but the Lords and Masters of such houses and their Families must receive the Communion at least once every year in their own Parish Churches and no person is to refuse the Communion at the hands of an unpreaching Minister upon pein of Suspension and Excommunication after a Months obstinacy and if any Parson Vicar or Curate receive any such Persons to the Communion which are out of his own Church and Parish thereby strengthening them in their Errors he may be Suspended and not released thereof till he promise not to offend therein afterwards Car. 21 22. 56 57 71. Note that the Communion is to be Administred in all Colleges and Halls The Communion to be Administred in Colleges c. the first or second Sunday in every Month c. within both the Universities the first or second Sunday of every Month and the Masters Fellows and Schollers and all the rest of the Students Officers and all other the Servants are to Communicate four times in the year at the least kneeling decently upon their knees when they receive it and all Deans Wardens Masters or Heads of Cathedral and Collegiate Churches Prebendaries Cannons Vicars petty Cannons Singing-men and all others are also to Communicate four times in the year and in all Cathedral and Collegiate Churches it is to be Administred on principal Feast-days sometimes by the Bishop if then present and sometimes by the Dean and at sometimes by a Cannon or Prebendary the principal Minister using a decent Cope and being assisted with the Gospeller or Epistler and in such Cathedral and Collegiate Churches in time of Divine Service and Prayers when there is no Communion it is sufficient to wear Surplices onely but all Deans Masters and Heads of Collegiate Churches and Cannons and Prebendaries being Graduates are to wear such Hoods with their Surplices as are agreeable to their degrees and all Ministers saying the publick Prayers or Administring the Sacraments or other Rites of the Church are to wear decent Surplices with sleeves to be provided at the charge of the Parish and such as are Graduates must upon their Surplices at such times wear such Hoods as are agreeable to their degrees which no Minister must wear being no Graduate under pain of Suspension but such as are no Graduates may instead of Hoods wear some decent Tippet of black so it be not Silk Can. 23 24. 25. 58. What Parsons Ministers may refuse to admit to the Communion No Minister is to admit to the receiving the Holy Communion any of his Parishoners who are openly known to live notoriously in sin without repentance nor such as are at variance with their Neighbours till Reconciliation nor any Church-Wardens or Sidemen who have neglected or refused to present such publick Offences as they themselves know are committed within their Parishes or are notoriously offensive to the Congregation there nor are the Ministers to give Communion to any but such as kneel nor to any that refuse to be present at publick Prayers or deprave publickly the Book of Common-Prayer or any thing that is contained in the nine and thirty Articles of Religion or in the Book of ordering Priests and Bishops nor to any that have spoken against his Majestie 's Supremacy under pein to be suspended unless every such person do first acknowledge to the Minister before the Church-Wardens his Repentance for the same and promise by word if he cannot write to doe so no more and if he can write then
Persons Subject or Resiant within this Realm or within any of the King's Dominions do sue to the Court or See of Rome or to any Person claiming to have his Authority by the same for any Licence c. or put in Execution any such Licence c. obtained from Rome or the See of Rome or from any claiming Authority by the same or attempt or doe any thing or things contrary to the stat 25 H. 8. aforesaid or maintain allow admit or obey any manner of Censures Excommunications Interdictions or any other process from Rome of what Name or Nature soever it be to the Derogation of the said Act or of any thing or things to be done by Authority of the same every Person so offending and being convicted thereof shall incurr and run into the pein of a Praemunire 25 H. 8. cap. 21. and see the 13 Eliz. cap. 2. if this be not made High Treason by that Statute No Nobleman or oâ—her can after their just number of Chaplains are advanced take any more to qualify them during the other Chaplains lives If any Noble-man or other Person who are Capacitated to keep Chaplains have once retained their full number who are admitted to two Benefices apiece they cannot then whilst the others are living retain any more to qualify them to take a second Benefice as appears by this Case following Sr. James Crofts Controuller of the House to Queen Elizabeth had two Chaplains according to the stat 21 H. 8. who were both preferred to two Benefices apiece according to the Purport of the said Statute and afterwards he takes another Chaplain having one Benefice who procures a second as being his Chaplain and the Queen presented to his first Benefice and brought a Quarâ— Impedit against him and all the Court held that after two are advanced a third cannot be advanced for there can be but two at one time who shall take advantage of the Statute And it was agreed in that Case that there is a difference between the words to be advanced to a Benefice and to be advanced to take and keep a Benefice for one may be advanced to a Benefice who cannot Lawfully keep it for if one who hath a Benefice with cure c. take another he cannot keep these two Lawfully but such a Chaplain who is advanced according to the Statute may receive and keep two Benefices Tr. 27 Eliz C. B. the Queen and Bishop of Gloucester and Savaker's Case An. Rep. 1 part f. 200. pl. 236. vide Co. Rep. 4 Lib. f. 90. a. the same Case cited there but said to be P. 28. Eliz Rot. 1130. First Chaplains only qualified to take Plurality of Benefices Also where a Lord Countess or other Person have retained their full number of Chaplains and afterwards retain one or more Supernumerary Chaplains these last Chaplains are not qualified to have Pluralities of Livings although they obtain Dispensations and are first preferred for though by the Common Law a Countess may retain as many Chaplains as she pleaseth yet she can have but two capable of Dispensation by the Statute and reason requires that he who had served longest shall be first preferred et qui prior est tempore potior est jure and although the two first were dead before the advancement of the third yet because they were alive at the time of the Retainer which Retainer was by the Common Law and not by the Statute therefore he ought to have a new Retainer after their Death and before his advancement for quod ab initio non valet in tractu temporis non convalescet Tr. 43 Eliz. C. B. the Queen and Bishop of Lincoln and Drurie's Case Co. Rep. 4 Lib. f. 89. b. M. Rep. f. 561. pl. 763. Cro. Eliz. f. 723. pl. 56. 839. pl. 15. and see P. 31 Eliz. Rot. 728. the Queen and Bishop of Lincoln and the President and Schollers of Mawdlin College in Oxford and Skiffin's Case M. Rep. f. 277. pl. 431. and Savil's Rep. f. 101. pl. 181. A Retainer may be as well by word as by writing And note that a Retainer to be Chaplain may be as well without writing as with writing for it is not of necessity but only in Case where the same is to be shewed and if a Chaplain obtain a Patent or Testimonial from his Lord or Lady whose Chaplain he is before he come to be Impleaded so that he have it to shew to the Court although he had it not at the time of his taking a Second Benefice yet it is well enough and so it was Adjudged M. 35 and 36. El. in the Exchequer between Whetstone and Hickford Savills Rep. Rep. fo 135. pl. 213. and see the Queen and Bishop of Lincoln and Skiffin's Case Moo Rep. fo 277. pl. 432. How Chaplains may loose or gain qualification for plurality If the Son and Heir Apparent of a Baron or other Lord Retain a Chaplain and give him a Testimonial under his Hand and Seal and afterwards his Father dyes and the Honour descends to him and the Chaplain purchaseth a Dispensation this Retainer and Testimonial will not serve his turn because they were not availeable at the Commencement And if a Baron or other Lord Retain their full number of Chaplains according to the Statute and then the Lord or other Person dischargeth one of them out of his Service in this Case he cannot Retain another during that Chaplain's Life to qualifie him for pluralities for by such means he might Advance Infinite of Chaplains without number and so the Statute should be defrauded Co. Rep. 4. Lib. fo 90. a. But if a Lord or other Person whose Chaplains are qualified according to the Statute be disâ—harged out of his Service by his Master as he may before he be preferred to a Second Benefice or if his Master dye or is attainted degraded or displaced before such Chaplains preferment to a Second Benefice in all these Cases he â—ooseth his qualification to have plurality of Livings Incompatible Moo Rep. fo 678. pl. 924. vide Co. Rep. 4. Lib. 117. b. 118. b. A Lord c. to Retain a number of Chaplains according to his best quality If a Baron who by the Statute may have Three Chaplains be made Warden of the Cinque Ports who may by the Statute have one Chaplain in respect of his Office yet he shall have but Three and so if he be made an Earl who may by the Statute have Five Chaplains yet in such Cases he shall not have Eight as Baron and Earl but only Five according to his best Title and so it is of other Persons who by the Statute may Retain Chaplains Quia difficile est ut unus homo vicem duorum sustineat as the Book saith Co. Rep. 4. Lib. fo 90. b. 118. a. If a Chaplain be preferred to two Benefices his Lords death c. deth not Incapacitate him Where the Chaplains of a Baron or other Person who
are Capacitated to have Chaplains by the Statute are in the Life-time of their Lords preferred to Two Benefices according to the Statute if their Lords dye afterwards they may notwithstanding keep their Livings but although they be Resident upon one of them yet they shall be punished for Non-Residence upon the other as my Lord Cooke saith it was Adjudged in Parson Boyton's Caâ—â— and therefore it behoves such Persons to obtain of the King a Non-obstante the like Law is when a Baron is Attainted of Treason or Felony or when any Officers who may have Chaplains are removed from their Office sic de similibus Co. Rep. 4. Lib. fo 119. a. Dyer fo 312. b. An Infant Lord may quâ—lifie Chaplains It is said to be Adjudged that if an Earl or other Lord that is an Infant be in the Guardian ship of another Lord and live in the House with him yet he may Retain and Qualifie Chaplains by the Statute for the words of the Act are general and although the Guardian be a Noble-man and have Chaplains allowed him by the said Act yet the Pupil may Retain Chaplains also p. 44. El. in a Quare Impedit between the Queen and the Bishop of Salisbury and others Co. Rep. 4. Lib. fo 119. a. The Marriage of a Widâ—ow doth not incapacitate per Chaplaing Râ—tained before If a Baroness who is a Widdow Retain Two Chaplains and they purchase a Dispensation and then the Baroness Marries either to a Noble-man or one below the degree of Nobility before the Chaplains accept a double Benefice yet this is no Countermand discharge or disability to them no more it is if her Second Husband dyes and she is a Widdow again but if she dyes before they are preferred then it is otherwise M. 44 45. El. C. B. The Queen and Bishop of Peterborough and Acton and Cartmell's Case Co. Rep. 4. Lib. fo 117. and Moo Rep. fo 678. pl. 922. If a Lord retain his double number of Chaplains the first are only qualâ—fied for plurality c. If a Lord retain his double number of Chaplains at one time as if a Baron who is to have Three Retain Six by his Letters Testimonial and all these Six are preferred to six several pluralities in this Case the Three which are first promoted are warranted by the Statute and yet the Retainer was not according to the Statute in aequali Jure melior est Conditio possidentis and the other Three last are not by the Statute Reputed for his Chaplains so long as the first Three who are promoted by his Service do Live for otherwise the Statute should be defrauded and by the opinion of Catlyn Sanders and Dyer where the Chaplain of a Lord hath two Benifices with Cure without a special Licence or Dispensation of the Metropolitan he is not in danger to loose his Plurality by force of the Statute of 21 H. 8. for the words are not that he ought to Sue for a Licence c. but that he may Sue for a Licence c. but notwithstanding such Chaplains fall within the danger of the Spiritual Law Tr. 14. Eliz. C. B. Dyer f. 312. b. pl. 88. vide Co. Rep. 4. Lib. f. 90. a. Dispensation after Institution comes too late Where one is possessed of a Benefice with Cure and being Qualified is presented to a Second Benefice and is admitted and Instituted to the same and before his Induction he procures a Dispensation in this Case the Dispensation comes too late for upon the bare Institution Ecclesia plena consulta existit against all Persons but the King for by the Institution he is compleat Parson if he Subscribe to the Articles of Religion as to the Spiritualities to wit Cura Animarum and may Celebrate Divine Service Preach c. but as to the Temporalties as the Glebe Land Tythes c. he hath no Right or can Sue for them till Induction and before the Statute 21 H. 8. the acceptance of a Second Living whatsoever the value of the first were made the first void as appeareth by a Canon made in the year 1215. at the Council of Lateran held under Pope Innocent the Third the Tenor whereof is here inserted Statutum est quod quicunque receperit aliquod Beneficium habens Curam Animarum annexam si prius tale Benesicium obtinebat eo sit Jure privatus si forte illud retinere contenderit aliam etiam spolietur Is quoque ad quem priorâ—s spectat donatio illud post receptionem alterius conferat cui merito viderit Conferendum by which it appears that by the acceptance of a Second Benefice the first is void ipso Jure and the Patron may present if he please And it was resolved that a grand Inconvenience would ensue if the first Benefice should not be void by Institution to the Second for then one might be Instituted to diverse Benefices with Cure so that he could not be able to discharge them all and yet no other could be presented to any of them which would be inconvenient And it hath been adjudged that where one is Presented Admitted and Instituted to a Benefice with Cure above the value of Eight pounds Per annum and afterwards before his Induction he accepts another Benefice with Cure and is Inducted into it that by this the first is void by the Statute 21 H. 8. for the words of the Act are If any Person having one Benefice with Cure c. accept and take another c. and he which is Instituted to a Benefice is said in Law to have accepted a Benefice and to have a Benefice H. 41. Eliz. B. R. Digby's Case Co. Rep. 4. Lib. f. 78. b. M. Rep. f. 433. pl. 609. the same Case by the Name of Robin's and Gerrard and Prince there and see p. 31. Eliz. B. R. Vnderhill and Savage's Case Leon. Rep. 1. part f. 316. pl. 442. Vaugh. Rep. f. 131. Co. 2. part Inst f. 358. H. 43. Eliz. C. B. Robin's and James's Case Gouldes Rep. part 162. pl. 97. p. 15. Jac. C. B. Morgan and Glover's Case Dispensation for Triality not good A Chaplain of the Arch-bishop of Canterbury having a Benefice of the Queens Guift procured a Dispensation of the Arch-bishop of Canterbury his Lord and Master to have a Triality the Queen under her Great Seal Confirmed the Dispensation with these words Scil. Ita quod omnibus singulis in iisdem Literis specificat frui uti potiri valeat libere quiete Impune absque Impedimento c. aliquo Statuto Actu vel Restrictione in contrarium edit proviso aut aliqua alia re causa vel materia quacunque in aliquo non obstante c. so by force hereof the Chaplain took two other Livings Incompatible by reason of which Acceptance it was adjudged the Living became void notwithstanding the Confirmation of the Dispensation Tr. 18. Eliz. C. B. Coxe's Case Dyer f. 351. pl. 25. vide f.
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
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
vide Brownl Rep. 2 part f. 132. 27. Eliz. C. B. Marrow 's Case Godb. Rep. pa. 20. pl. 38. When the avoidâ—ncâ— of such Lease shall beâ—â—â— But there is a Quaere in Dyer whether such Leases shall be void upon 80 daies absence ab initio or but from the time of the absence by 80 daies and as to this some have held one way and some another vide M. 22 23 Eliz. C. B. Evans and Heister's Case Dyer f. 372. b. pl. 11. but observe that this not serving the cure must be voluntary for it seems if a Parson Vicar c. be suspended inhibited or disabled to serve the cure by the space of 80 daies this shall not make such Lease void but it hath been held that if a Parson be Resident and do not serve the cure or serve the cure and be absent 80 daies simul semel that in both these Cases it will make the Lease void P. 39 Eliz. B. R. Dobbins and Gerrard's Case Gouldes Rep. p. 162 163. vide M. Rep. 448. in principio P. 9. Jac. B. R. Shepherd and Towlsie's Case Boulstr Rep. 1 part f. 111. Lease void when It hath been a Quaere also whether after 80 daies are incurred after the Death of a Parson or Vicar c. making such Lease if thereupon it shall not be void and Justice Crook in his reports saith it was adjudged in Mott and Hale's Case that after 80 daies incurred after their Death 's such Leases should be void but Moor in his reports saith that the Judges where divided in Opinion as to that point H. 31 Eliz. B. R. Mott and Hale's Case Cro. Eliz. f. 123. pl. 1. M. Rep. f. 270. pl. 422. but some say that this point coming in question Tr. 14 Car. 2. B. R. between Bayly and Mournes it was then adjudged that Death doth not avoid such Leases Ideo Quaere and note that Confirmation of Patron and Ordinary in such Cases amends not the matter for if the Lease be void the Confirmation is of no force What Lease wiâ—hin the Statute c. Note it hath been held that where an Archdeacon makes a Lease for three Lives according to the Statute and the Lessee makes a Lease for an 100 Years and the Archdeacon Bishop and Dean and Chapter confirm it yet this shall not bind the Successor for if such Confirmation shall not be said a conveyance within the Statute then shall the Statute signify little or nothing and the good intention and meaning of the Act shall be defeated and defrauded Co. Rep. 5 Lib. f. 15. a. Obligation to injoy c. where good A Lay-Person being presented to a Benefice before the 13 Eliz. made a Lease for 60 Years which was confirmed by the Patron and Ordinary and the Successor of the Parson became bound in an Obligation after the Statute 14 Eliz. that the Lessee should injoy the Term and after the Obligation entred the Successor was absent above 80 daies in one Year and so the Obligation became void by such absence or no was the Question and it was adjudged that it was not void by the Statute 14 Eliz. for the Lease being good so the Obligation for injoyning the same should be good also P. 42 Eliz. Rot. 127. B. R. Costard and Wingate's Case M. Rep. f. 606. pl. 836. Cro. Eliz. f. 775. Bond to injoy c. where void A Parson made a Bond to resign upon request and after his Induction he made a Lease to his Patron of part of the Glebe for one and twenty Years and afterwards was absent above 80 daies in one Year and upon an Action brought upon this Bond the Incumbent pleaded the 13 14 of Eliz. and averred that this Bond was made to secure this Lease and to compell him that he should not avoid the Lease by absence least he should be required to resign and this was adjudged a good Plea and an apt Averment M. 43 44 Eliz. C. B. Webb and Hargrave's Case M. Rep. f. 641. pl 883. Acceptance makes the Lease good when and when not If a Bishop seized of Tythes in right of his Bishoprick make a Lease of the same for life or lives rendring the ancient Rent the Tythes having been usually demised for the same Rent and then dyes this Lease is void against his Successor and no acceptance of the Rent will make it good for this Rent being reserved upon a Lease of Tythes for Life there is no remedy for it by distress or Assize so the Lessee is not compellable to pay it and because it is not payable as the Law appoints it is therefore void vide 5 E. 3. 30 Ass 5. but if it had been a Lease for Years iâ— had been otherwise because Debt lies yet the Books make a Quaere in it vide Tr. 2 Jac. B. R. Talentire and Denâ—on's Case M. Rep. f. 778. pl. 1078. Tr. 5 Jac. B. R. â—ickman and 〈◊〉 Case Cro. Jac. f. 173. pl. 14. Lease void against the Successor when A Prebend was usually Let with the Exception of all Crab Trees and such like Trees and afterwards the Prebendary made a new Lease of the Prebendship omitting the exception of the Crab Trees c. receiving the ancient Rent and this Lease was held to be void against the Successor for there is more Let then was anciently because the Trees were formerly excepted and so this Lease not binding against the Successor P. 15 Jac. B. R. Smith and Bowle's Case Boulstr Rep. 3 part f. 290. Cro. Jac. f. 458. pl. 5 vide Leye's Rep. f 74. If a Parson let his Rectory excepting Exâ—â—pâ—ion c. void the Glebe the exception is void for no Rectory can be without Glebe but he may except parcel of the Glebe and it shall be good but in pleading the Lease of a Rectory this shall be taken for the whole Rectory and not for parcel Mabie's Case Wynch Rep. f. 23. Grant of the next avoidance by a Bishop c. vâ—id It haâ—hâ— been adjudged that the Grant of the next avoidance of a Benefice by a Bishop or Dean and Chapter iâ— within the Restrictionâ— of the Staâ—â—tes before mentâ—oâ—â—d in this Chapter and shall be void against the Successors and it hath also been Resolved that if a Dean and Chapter grantâ—â— Rent Charge out of their Possessions that it is restrained by the equity of the Statute though these cannot be said any part of the Possessions of their Churches Co. Rep. 5 Lib. f. 15 a. and so it was adjudged M. 37 38 Eliz. C. B. between the Dean and Chapter of Hereford and the Bishop of Hereford and Ballard as my Lord Cook reports it and see M. 32 33 Eliz. C. B. Sale and Bishop of Coventry and Lichfield cited in Co. Rep. 3 Lib. f. 59. b. Roll's Cases 1 part f. 159. 169. Brid Rep. f. 39 Co. Rep. 10 Lib. f. 60. b. Leon. Rep. 1 part f. 307.