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former, immediately after his accepting of the latter, shall bestow the same upon whom he shall think worthy. Hughes, c. 16. Gibs. 903.

Othob. Before institution, it shall be inquired, whether the presentee hath any other benefice with cure of souls; and if he hath such benefice, it shall be inquired, whether he hath a dispensation: And if he hath not a sufficient dispensation, he shall by no means be admitted, unless he do first make oath, that im-mediately upon his taking possession of the benefice unto which he is instituted, he will resign the rest. Whereupon he who granteth institution shall immediately give notice to the bishops in whose dioceses such former benefices shall be, and also to the patrons that they may dispose of the same. Athon. 129.

Othob. When confirmation is to be made of the election of a bishop, amongst other articles of inquiry and examination according to the direction of the canons, it shall be diligently inquired, whether he who is elected had before his election several benefices with cure of souls, and if he be found to have had such, it shall be inquired whether he hath had a dispensation; and whether the dispensation (if he shall exhibit any) is a true dispensation, and extendeth to all the benefices which he possessed. Athon 133.

According to which constitution we find, in the times of the archbishops Peccham and Winchelsea, that confirmation was denied to three bishops, by reason of pluralities without proper dispensation. Gibs. 905.

Peccham. He who shall have more benefices than one with cure of souls, without dispensation, shall hold only the last; and if he shall strive to hold the rest, he shall forfeit all. And it is further decreed, that he who shall take more benefices than one,

void at election of the patron, Boteler v. Allington, 3 Atk. 455. But Watson, ch. 3. says, "the first benefice is not avoided by induction to another benefice with cure, if the incumbent do not send the thirtynine articles, for he never was possessor of the second:" but the acts enforcing this requisite, provide deprivation ipso facto, for neglect thereof, which implies full possession of the benefice; and see Vaughan 131. Watson goes on to say, "that the first benefice is not "avoided if the incumbent is presented to the second by simony, or "does not subscribe the articles before the ordinary himself." In Bulwer v. Bulwer, 2 B. & A.470. it was held, that the parson is by induction put in possession of a part for the whole, and may maintain action for trespass on glebe, though he has not taken actual possession of it.

Union of the second benefice to the first, after institution to the first, will not save the avoidance of the first, Hob. 158.; nor will a pardon by the king of his title by lapse restore it. The King v. Priest, Jones, 339.

having cure of souls, or being otherwise incompatible, without dispensation apostolical, either by institution or by title of commendam, or one by institution, and another by commendam, except they be held in such manner as is permitted by the constitution of Gregory published in the council of Lyons; shall be deprived of them all, and be ipso facto excommunicated, and shall not be absolved but by us or our successors or the apostolic see. Lind. 137. Having cure of souls] Whether it be a cathedral or parochial church or a chapel having cure of the parishioners, either de jure or de facto; so that there be a parish, wherein he can exercise parochial rites: also, whether it be a dignity or office, or church; as there are many archipresbyters, archdeacons, and deans, who have no church of their own, yet they have jurisdiction over many churches. Lind. 135.

Or being otherwise incompatible] Namely, dignities, parsonages, and other ecclesiastical benefices, which require personal residence either by statute, privilege, or custom. Lind. 137.

In such manner as is permitted by the constitution of Gregory] Namely, that he to whom the benefice is granted in commendam be of lawful age, and a priest; and that it be one only, and of evident necessity, or advantage to the church, and to continue no longer than for six months. Lind. 137.

And shall not be absolved but by us or our successors, or the apostolic see] And by another constitution of the same archbishop, if any shall otherwise absolve them, they shall be accursed. Lind. 339.

But after all, these canons and constitutions were not intended to hinder or take away pluralities; but to render dispensations necessary for a clerk was allowed to hold as many dignities or benefices as he could get, with the pope's dispensation; which was easily obtained from his legate or nuncio residing here, on paying the sums required. Johns. 91.

2. By the 21 H. 8. c. 13. (9) If any person having one benefice Restraints with cure of souls, being of the yearly value of 81. or above, accept by statute. of plurality and take any other with cure of souls, and be instituted and inducted in possession of the same; then and immediately after such possession had thereof, the first benefice shall be adjudged in law [ 95 1 to be void. And it shall he laraful to every patron, having the advowson thereof, to present another, and the presentee to have the benefit of the same, in such like manner and form as though the incumbent had died or resigned; any licence, union, or other dispensation to the contrary notwithstanding; and every such licence, union, or dispensation to be obtained contrary to this present act, of what name or quality soever they be, shall be utterly void and of none effect. And if any person or persons, contrary to this pre

(9) Confirmed 25 H. 8. c. 21. § 21. act for dispensations.

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sent act, shall procure and obtain at the court of Rome or elsewhere any licence, union, toleration, or dispensation, to receive and take any more benefices with cure than is above limited; every such person or persons, so suing for himself, or receiving and taking such benefice by force of such licence, union, toleration, or dispensation, that is to say, the same person or persons only, and none other, shall for every such default incur the penalty of 201. and also lose the whole profits of every such benefice or benefices as he receiveth or taketh by force of any such licence, union, toleration, or dispensation; half to the king, and half to him that will sue for the same in any of the king's courts. § 9, 10, 11.

If any person] Although bishops are not within this act, otherwise than as commendataries, that is, having two benefices which cure, either by retainer, or de novo; yet it is a general law, which ought to be taken notice of without pleading, by the same reason that the statute of the 13 Eliz. c. 10. concerning leases of the clergy, hath often been adjudged a general law, though bishops are not included in it. Gibs. 906.

Having one benefice] So as that he hath been instituted, although he hath not been inducted into the same; for if he taketh a second benefice after such institution, the first is void, as much as it had been taken after induction also. Gibs. 906.

Of the yearly value of 81. or above] According to the valuation in the king's books; for so it was unanimously resolved by the court of common pleas in the 23 C. 2. and before that in the 8 C. 1. by the same court, in the case of Drake v. Hill (1); which therefore is at this day taken for law, notwithstanding the two more ancient opinions to the contrary, one in Dyer, 7 Eliz. and the other in the case of Bond and Trickett in the 43 Eliz. Gibs. 906. Wats. c. 2.

Of 81. or above] If such first benefice is under the yearly value of 87. in the king's books, the same is not within this statute, but rests upon the law of the church, as it was before the statute. Gibs. 906. [see 93. note (8).]

Accept and take any other] It is not material in this case, of what value the second church is, or whether rated in the king's books at all; for the voidance will take place equally when the second is under, as when it is above 8l. a-year. Gibs. 906. (2)

And be instituted and inducted in possession of the same] Although the expression is copulative, and should therefore imply,

(1) Cro. Car. 456. Sir T. Jones, 19.

(2) Boteler v. Allington, 3 Atk. 455. Vaugh. 131. Jones, 404. a dignity as dean of a cathedral, without cure is not within these words: nor does a bishop vacate a benefice with cure by this statute, but at common law. Hob. Rep. 157. 1 Leon. Rep. 316. Semb. contr., and not till consecration, Pal. 346.

that the voidance which follows thereupon doth not take place till after induction; yet it hath been often adjudged, that if one is instituted, and then obtains dispensation, and after that is inducted, the dispensation comes too late; not only because by institution the church is full of the incumbent, and one cannot have a dispensation, to take and receive (as the words of the act are) what he had before; but also because by institution he hinders others from being presented: and so by obtaining institution to many churches, with sequestration of the profits of them, the intent of this statute might be utterly frustrated. Gibs. 906. (3) And it shall be lawful to every patron, having the advowson thereof, to present another] If the first benefice was of less value than 87. a-year; yet by his acceptance of a second with cure, it is at this day in jure void by the received canon law: and there needs not any sentence declaratory in the spiritual court, to make way for the patron's presentation; for he may immediately thereupon (without either deprivation or resignation) present a new incumbent to the said church, and require his admission; and if the bishop doth refuse the patron's clerk, a quare impedit lies for the patron. But some opinions are, that the church is not void but by deprivation; and that the taking of a second benefice with cure in such case, until deprivation, is no cession: But this is to be understood, that it is no cession to the disadvantage of the patron; so as to make al apse incur from the time of such cession, no notice having been given to the patron thereof. For until after such clerk shall have been actually deprived of his first benefice, and notice thereof given to the patron; he, though he may, yet need not to present: but then after such deprivation, the church is void in facto and in jure, so that he must at his peril present. Wats. c. 2.

And if an incumbent of a church with cure under 81. a-year doth take a second benefice with cure, in which he is also instituted and inducted (no dispensation being obtained for the holding of them both), by which the first is void against the patron, so that he may present (as before is shewed), but before the [97] patron doth present upon such avoidance, the archbishop, by force of this statute, doth grant to the clerk a licence perinde valere, to hold the first with the second benefice; this is not a good licence, (although confirmed according to the statute) to take away the patron's presentment, though his church was only void by force of a canon, and not by statute: for by the canon the first benefice was so void, that the patron might have presented before any deprivation; and after the patron hath once a

(3) Digby's case, 4 Rep. 78. but this case extends only to dispensations, and the second living is not accepted so as to create a lapse till induction per cur. 1 Bla. Rep. 494.

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title to present, this title cannot be taken away from him by a subsequent licence, unless such a licence could make a void church full. Wats. c. 2.

But if any person having one benefice with cure of souls, being of the yearly value of 87. or above, do accept and take another benefice with cure of souls, and be instituted and inducted in possession of the same (although the last benefice be but of 31. value); immediately after such possession had thereof, the first benefice is not only void in law but in facto also: so that the patron thereof must present to a living of such value, so void, within six months (without expecting notice from the ordinary) to avoid the lapse; it being then not only void by canon law but also by act of parliament, in which all men are parties. But he need not (unless notice be duly given) present till such time as his clerk is inducted into another benefice. For though by his institution he hath the cure of souls, and the church is full to several purposes; yet the words of the statute are," and be in"stituted and inducted in possession of the same;" so that until he be inducted, there is no cession by this statute, but only by the canon law; by which law in such case also he may be deprived. Wats. c. 2. (a)

But the patron, if he pleaseth, may present so soon as his clerk is instituted into another benefice incompatible, although he hath no notice from the ordinary of any cession or deprivation made of the first benefice, by reason of his acceptance of another by institution; and though he was only instituted into the first benefice, and not inducted: or else, if he pleaseth, he may sue such person in the court christian, to have him deprived by sentence, in this, as well as in any other case where the living is void by the canon law only. Wats. c. 2.

But this rule, that the accepting of a second benefice that is incompatible, doth make a cession or absolute avoidance of the former, hath its exceptions: As, 1. If a person having a benefice incompatible, be admitted, instituted, and inducted into a second benefice incompatible also, but doth not subscribe the articles according to the statute; his first benefice is not void, because by reason of that neglect, he was never incumbent of the second. The like law seemeth to be, if a man hath obtained a second benefice incompatible with his former, by a simoniacal contract; for in such case also, his presentation or collation, institution, and induction, are utterly void and of none effect in law: However, the canon law, unless a pardon intervene, will reach him in this case of simony; for by that he may be deprived. 2. If he that hath a benefice incompatible, before he takes another, being duly qualified, doth obtain a sufficient dispensation, to hold at one and the same time more than one of such benefices as are incompatible:

(x) See Deprivation, in notis.