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Presented by thet is not absold.
And if any archbishop, bishop, archdeacon, ordinary, or any other person or persons to their uses and behoof, shall receive or take the same, and shall not upon reasonable request render the same to the next incumbent lawfully instituted, inducted, or admitted, or shalį let or interrupt the said incumbent to have the same; he shall forfeit treble value, half to the king and half to
the incumbent, to be recovered in any of the king's courts. [ 2 ]
To such person as shall be thercunto next presented, promoted, instituted, inducted, or admitted] In order to receive the benefit of this clause, it is not absolutely necessary, that the clerk be presented by the lawful patron ; but if he get institution and induction, though he is afterwards removed by quare impedit, he, and not the clerk who comes in upon such removal, shall have the profits of the vacation. And the reason is, because till he is removed, he is incumbent de facto, and as such is liable to all burdens and duties, and is therefore in reason and equity intitled to all the profits. 1 Rol. Rep. 62. Gibs. 749. 4 Vin. Abr. 495.
But in cases where the institution and induction are declared by law to be ipso facto void (as in case of simony, or the like), there the church having been really never full since the death of the foregoing incumbent, and by consequence the vacancy still continuing, there the profits of course shall pass to him who shall be next presented, instituted, and inducted. Gibs. 749.
But though the church doth become void by the omission of some subsequent duty to be performed, yet having been full by institution and induction, and the person thereby liable to the payment of first fruits, he shall not lose the profits of the vacation; only the profits from the time of such avoidance ipso facto will go to the next incumbent, as profits of the vacation, which commenceth from thence. Gibs. 749.
Inducted or admitted] This cannot be understood disjunctively, as if presentation or admission (without institution and induction) intitled the successor to the profits of the vacation ; but admission here (coming after induction) was plainly added, to include those preferments which are not taken by institution and induction. And although in preferments which are so taken, institution gives a right to enter upon and take the profits as well of the vacation as others; yet that which alone can give a right to
sue for them, is induction. Gibs. 749. Sequestra. 2. Anciently upon the death of an incumbent, without any tion issued, formal sequestration, the rural dean was to take the vacant beneon a benefice becom. fice into his safe custody, and to provide for the necessary cure ing void. of souls; and to take care that the glebe land was seasonably
tilled and sowed, to the best advantage of the successor, to whom they were to give up the intermediate profits, and be allowed their necessary charges, which upon dispute were to be moderated by the bishop or his official. But the canon lawyers in
process of time deprived the country deans of this, as well as of all other parts of jurisdiction; and the chancellors of bishops, or their archdeacons, laid claim to the custody of vacant. churches, and by forms of sequestration assigned them over to the economi or lay guardians of the church. Ken. Par. Ant. 647.
For now, the ordinary way of managing the profits of vacation is by sequestration granted to the churchwardens. Upon consideration of which, Dr. Watson and Dr. Gibson take occasion to wish, that some of the neighbouring clergymen might be appointed, and would take upon them the trouble of that office, in inspecting and managing the profits, and of supplying or providing for the cure; and that the ordinary, in granting patents, would not convey to chancellors, commissaries, or officials, the right of granting these sequestrations, in times of vacation, but would reserve it to their own immediate cognisance; since it is a point in which the interest of the church and clergy, and also the immediate care of souls for the time, are so nearly concerned. Gibs. 749.
3. The churchwardens, having taken out a sequestration Manageunder the seal of the office, are to manage all the profits and ment of the expences of the benefice for the successor; to plough and sow Pronts. the glebe, gather in tithes, thresh out and sell corn, repair houses, make up his fences, pay his tenths, synodals, and proz, curations; and what other things are necessary during the vacation.
But the sequestrators cannot maintain an action for tithes in their own name, at common law, nor in any of the king's temporal courts ; but only in the spiritual court, or before the justices of the peace in such cases as the law impowers them to hear and determine. Johns. 122.
Thus in the case of Berwick and Swanton, T. 1692; it was resolved, that a sequestrator cannot bring a bill alone for tithes ; because he is but as a bailiff, and accountable to the bishop, and has no interest. Bunb. 192. .
4. By the statute of 28 H. 8. c. 11. It shall be lawful to every Supply of archbishop, bishop, archdeacon, and ordinary, their officers and the cure. ministers, to retain in their custody so much of the profits of the vacation, as shall be sufficient to pay unto such person as shall serve the cure his reasonable stipend or salary. 5.
And if the fruits of the vacation be not sufficient to pay the curate's stipend and wages for serving the cure the vacation time; the same shall be borne, and paid by the next incumbent, within fourteen days next after he hath the possession of his living. § 10.
And it may be safest for the churchwardens, to get it stated by the ordinary, when they take out the sequestration, what they are to pay to the curate weekly for the serving of the cure:
and then there can be no contention about it when they make up. their accounts. Par. L. c. 29.
And Dr. Gibson says, such curate ought to be duly licensed by the ordinary, for serving of the cure; otherwise if he proceeds without such licence, he can have no title to any stipend or salary; nor can any be legally reserved and deducted for him.
Gibs. 750, Successor .5. The successor's right to enter commenceth immediately when to
upon his induction, but his right to the profits commenceth from the avoidance of the benefice. But where the benefice is in lease, and there is a year or more to come in the term; the lessee may hold and enjoy the lease to the end of the year wherein he is entered at the time of the death of the last incumbent; paying to the successor all such rent and services as for the remnant of the said year shall upon such lease be due, and the successor may recover the same in like manner as his predecessor might have done. [28 H. 8. c. 11. $ 8.] (a) Provided, that every successor (after the death of his predecessor] may have, upon one month's warning after his induction, the mansion
house with the glebe belonging to the same (not being sown at ... the time of his predecessor's death), for maintenance of his house
hold; deducting for the same in his rent as heretofore hath been
paid for the same, or as it is reasonably worth. $ 9. Swinb. 107. Sequestra. 6. As soon as a new incumbent is instituted and inducted, the tors to
sequestrators are to account to him for all the profits of the benefice, which they have received during the vacancy. Wats. C. 30.
In which account they may deduct their reasonable expences, for collecting and levying the tithes, fruits, emoluments, rents, and other profits rising and growing during the vacation. 28 H. 8. c. 11. $ 5.
If he be dissatisfied with the account, he may bring them to account before the ordinary, by whom all things relating hereunto are properly examinable and to be determined. Wats. c. 30.
In the case of Jones and Barret, H, 1724; on a bill by the vicar of West Dean in the county of Sussex against the defendant who was sequestrator, for an account of the profits received during the vacation; it was objected for the defendant, that the bishop ought to have been made a party, since the sequestrator is accountable to him for what he receives, by the statute of 28 H. 8. And the court seemed to think the bishop should have been a party ; but by consent the cause was referred to the bishop of the diocese. Bunb. 192.
antin the case Dean in the count account of the fendant, th
(a) And see 9 Vin. Ab. 36. But this clause is repealed by the 1 & 2 Phil. & Mar. c. 17. as to leases made by parsons, vicars, or any other having any spiritual promotion. Vid. 2 Vern. Rep. 136. 204. Serj. Hill's MSS.
7. By the 28 H. 8. c. 11. If an incumbent before his death Proportion. hath caused any of his glebe lands to be manured and sown at
ing the prohis proper costs and charges with any corn or grain; he may predecesmake his testament of all the profits of the corn growing upon sor's execu. the said glebe lands so manured and sown. $6.
tors. But if his successor is inducted before the severance thereof from the ground, the successor shall have the tithe thereof; for although the executor represent the person of the testator, yet he cannot represent him as parson, inasmuch as another is inducted. 1 Roll's Abr. 655.
Otherwise, if the parson dieth after severance from the ground, and before the corn is carried off; in this case, the successor shall have no tithe : because, though it was not set out, yet à right to it was vested in the deceased parson by the severance from the ground. The same is true in case of deprivation, or resignation, after glebe sown: the successor shall have the tithe, if the corn was not severed at the time of his coming in; otherwise if severed. Gibs. 662.
In the case where lands are let to farm, it is enacted by the 11 G. 2. c. 19. as follows: Whereas, where a lessor or landlord, having only an estate for life in the lands, tenements, or hereditaments demised, happens to die before or on the day on which any rent is reserved or made payable, such rent or any part thereof is not by law recoverable by the executors or administrators of such lessor or landlord ; nor is the person in reversion entitled thereto, any other than for the use and occupation of such lands, tenements, or hereditaments, from the death of the tenant for life; of which advantage hath been often taken by the under-tenants, who thereby avoid paying any thing for the same: for remedy thereof, it is enacted, that where any tenant for life shall die before or on the day on which any rent was reserved or made payable, upon any demise or lease of any lands, tenements, or hereditaments, which determined on the death of such tenant for life, the executors or administrators of such tenant for life, may in an action upon the case recover of the under-tenant, if such tenant for life die on the day on which the same was made payable, the whole, or if before such day, then a proportion of such rent according to the time such tenant for life lived, of the last year, or quarter of a year, or other time in which the said rent was growing due; making all just allowances, or a proportionable part thereof. $ 15.
Under which words lands, tenements or hereditaments, it hath been holden, that not only glebe lands are included, but also tithes, for tithes are hereditaments. (b) A lease for a year, if the
(6) Quere the preamble to this clause, by which it seems that it does not extend to a lease of tithes : and no lease or agreement made
incumbent shall so long live or continue incumbent, is construed to enure for a year, and this statue, it hath been argued, divides the rent, be it for lands or tithes, between the executor and successor, making proportionable allowances for taxes and other outgoings.
Sir William Blackstone says, the courts of law have of late years leaned as much as possible against construing leases, where no certain term is mentioned, to be tenancies at will, but have rather held them to be tenancies from year to year so long as both parties please, especially where an annual rent is reserved: in which case, they will not suffer either party to determine the tenancy even at the end of the year, without reasonable notice to the other. 2 Bla. Com. 147.
And in the case of Timmins and Rawinson, H. 5 G. 3. it is said by the court, that even a lease at will is a tenancy for a year certain; and it is not material in such case, whether the lease be in writing or not in writing. 3 Burr. Rep. 1609.
On the other hand, it is contended, that this act between landlord and tenant had not the case of tithes in contemplation. Unto which purpose is applicable the opinion of a very great man, the late bishop Hoadly, who, in a letter to his son upon this subject, expresseth himself thus: “ The clause in the act of “ 11 G. 2. can only extend to such leases, as tenants for life had 66 power by law to make before the said act; the act creating no 6 new power, but remedying an inconvenience arising in the 66 exercise of an old power. This proves, that it cannot affect “ those leases, which common incumbents of parishes often “ make to their tithe-holders, fixing days of payment generally “ half-yearly. Such leases, though expiring with their makers, " yet are not touched by this act, nor can they deprive a succes" sor of any of the tithes which fall after the death of the pre“ decessor, by virtue of this clause, which gives the lessor's 66 executors a right to the proportion of rent to the day of his so death ; because these leases are not (properly speaking) leases, 56 nor of force against the successor, and do not give the under66 tenant any such advantage, as this clause was meant to pre65 vent. For the clause was designed to prevent the cunning of só dishonest under-tenants, who took a handle from such leases 55 to pay neither the executors of the lessor nor his successor; 56 which cannot affect the case of a successor in a living, who 66 has a right to all the tithes from the death of his predecessor 56 without this act, as the executors of the predecessors have to 66 all in his time. And as to the under-tenant, if he has paid
by a parson, unless confirmed by a patron or ordinary, and made with legal requisites, can bind the successor; so that a lease or agreement cannot alter the case as to tithes. Serj. Hill's MSS.