diately after fuch poffeffion had thereof, the first benefice shall be adjudged in law to be void. And it shall be lawful to every patron, having the advowson thereof, to present another, and the prefentee to have the benefit of the fame, in fuch like manner and form as tho' the incumbent had died or refigned; any licence, union, or other difpenfation to the contrary notwithStanding: and every fuch licence, union, or difpenfation to be obtained contrary to this prefent act, of what name or quality foever they be, fhall be utterly void and of none effect. And if any person or perfons, contrary to this present all, shall procure and obtain at the court of Rome or elsewhere any licence, union, toleration, or difpenfation, to receive and take any more benefices with cure than is above limited; every fuch perfon or perfons, fo fuing for himself, or receiving and taking fuch benefice by force of fuch licence union toleration or dispensation, that is to fay, the fame person or perfons only, and none other, shall for every fuch default incur the penalty of 201. and alfo lose the whole profits of every fuch benefice or benefices as he receiveth or taketh by force of any fuch licence, union, toleration, or difpenfation; half to the king, and half to him that will fue for the fame in any of the king's courts. f. 9, 10, 11, If any perfon] Altho' bifhops are not within this act, other wife than as commendataries, that is, having two benefices with cure, either by retainer, or de novo; yet it is a general law, which ought to be taken notice of without pleading, by the fame reason that the ftatute of the 13 Eliz. c. 10. concerning leafes of the clergy, hath often been adjudged a general law, tho' bishops are not included in it. Gibf. 9c6. Having one benefice] So as that he hath been inftituted, altho' he hath not been inducted into the fame; for if he taketh a fecond benefice after fuch inftitution, the first is void, as much as it had been taken after induction alfo. Gibf. 906. Of the yearly value of 8 1. or above] According to the valuation in the king's books; for fo it was unanimously refolved by the court of common pleas in the 23 C. 2. and before that in the 8 C. 1. by the fame court, in the cafe of Drake and Hill: which therefore is at this day taken for Jaw, 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. Gibf. 906. Watf. c. 2. Of 8 1. or above] If fuch firft benefice is under the yearly value of 81. in the king's books, the fame is not within this ftatute, but refts upon the law of the church, as it was before the ftatute. Gibf. 906. Accept Accept and take any other] It is not material in this cafe, 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 fecond is under, as when it is above 81. a year. Gibf. 906. And be inftituted and inducted in possession of the fame] Altho' the expreffion is copulative, and fhould therefore imply, that the voidance which follows thereupon doth not take place till after induction; yet it hath been often adjudged, that if one is inftituted, and then obtains difpenfation, and after that is inducted, the difpenfation comes too late; not only because by inftitution 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 inftitution he hinders others from being prefented: and fo by obtaining inftitution to many churches, with fequeftration of the profits of them, the intent of this ftatute might be utterly frustrated. Gibf. 906. And it fhall be lawful to every patron, having the advowson thereof, to present another] If the first benefice was of lefs value than 81. 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 fentence declaratory in the fpiritual court, to make way for the patron's prefentation; for he may immediately thereupon (without either deprivation or refignation) prefent a new incumbent to the said church, and require his admiffion; and if the bishop doth refuse the patron's clerk, a quare impedit lies for the patron. But fome opinions are, that the church is not void but by deprivation; and that the taking of a fecond benefice with cure in fuch case, until deprivation, is no ceffion: But this is to be understood, that it is no ceffion to the difadvantage of the patron; fo as to make a lapse incur from the time of such ceffion, no notice having been given to the patron thereof. For until after fuch clerk fhall have been actually deprived of his firft benefice, and notice thereof given to the patron; he, tho' he may, yet need not to present: but then after fuch deprivation, the church is void in facto and in jure, so that he muft at his peril prefent. Watf. c. 2. And if an incumbent of a church with cure under 81. a year doth take a fecond benefice with cure, in which he is alfo inftituted and inducted (no difpenfation being ob tained for the holding of them both), by which the firft is void against the patron, fo that he may prefent (as before is fhewed), but before the patron doth prefent upon fuch avoidance, the archbishop, by force of this ftatute, doth grant to the clerk a licence perinde valere, to hold the first with the fecond benefice; this is not a good licence, (altho' confirmed according to the 2atute) to take away the patron's prefentment, tho' his church was only void by force of a canon, and not by ftatute: for by the canon the first benefice was fo void, that the patron might have prefented before any deprivation; and after the patron hath once a title to prefent, this title cannot be taken away from him by a fubfequent licence, unless fuch a licence could make a void church full. Watf. c. 2. But if any perfon having one benefice with cure of fouls, being of the yearly value of 8 1. or above, do accept and take another benefice with cure of fouls, and be inftituted and inducted in poffeffion of the fame (although the laft benefice be but of 3 1. value); immediately after fuch poffeffion had thereof, the firft benefice is not only void in law but in facto alfo: fo that the patron thereof must prefent to a living of fuch value, fo void, within fix months (without expecting notice from the ordinary) to avoid the lapfe; it being then not only void by canon law, but alfo by act of parliament, in which all men are parties. But he need not (unless notice be duly given) prefent till fuch time as his clerk is inducted into another benefice. For tho' by his inftitution he hath the cure of fouls, and the church is full to feveral purposes; yet the words of the ftatute are, "and be inftituted and inducted in pof"feffion of the fame;" fo that until he be inducted,. there is no ceffion by this ftatute, but only by the canon law; by which law, in fuch cafe alfo he may be deprived. Wats. c. 2. (a) But the patron, if he pleaseth, may prefent fo foon as his clerk is inftituted into another benefice incompatible, altho' he hath no notice from the ordinary of any ceffion or deprivation made of the firft benefice, by reafon of his acceptance of another by inftitution; and tho' he was only inftituted into the firft benefice, and not inducted: or elfe, if he pleaseth, he may fue fuch perfon in the court chriftian, to have him deprived by fentence, in this, as well as in any other cafe where the living is void by the canon law only. Watf. c. 2. VOL. III. (a) See Depríbatíon, in not. But But this rule, that the, accepting of a fecond benefice that is incompatible, doth make a ceffion or abfolute avoidance of the former,, hath its exceptions: As, 1. If a perfon having a benefice incompatible, be admitted, inftituted, and inducted into a fecond benefice incompa tible alfo, but doth not fubfcribe the articles according to the statute; his first benefice is not void, because by reafon of that neglect, he was never incumbent of the fecond. The like law feemeth to be, if a man hath obtained a fecond benefice incompatible with his former, by a fimoniacal contract; for in fuch cafe alfo, his prefentation or collation, inftitution and induction, are utterly void and of none effect in law However, the canon law, unlefs a pardon intervene, will reach him in this cafe of fimony; for by that he may be deprived. 2. If he that bath a benefice incompatible, before he takes another, being duly qualified, doth obtain a fufficient difpenfation, to hold at one and the fame time more than one of fuch benefices as are incompatible: for by difpenfation, a man at this day with us (tho' he be not qualified by degree in the univerfity, retainer, or birth) may hold as many benefices without cure, of what value foever, as he can get; all of them, or all but the last, being under the value of 8. a year. Wats. .c.3. : Any licence, union, or other difpenfation to the contrary notwith/landing] The union here fpoken of, is meant of a temporary union for the life of the incumbent; inftances of which are common both before and fince the reformation. Gib. 907. And every fuch licence, union, or difpenfation, contrary to this act, fhall be utterly void and of none effect] One being pofleffed of two henefices by difpenfation according to this itatute, did afterwards by a trialty (or a difpenfation to hold three) obtain a third benefice, and enjoyed all the three; and Dyer fays, that divers juftices and ferjeants were of opinion, that the first of the three was void, and the profits of the third forfeited by this claufe, and that only the fecond remained to him. Gibf. 907. Dyer 327. Alfo in the cafe of the king against the bishop of Chichifter, where one had two benefices with cure, by difpenfation, and then took a third with cure (and, as it feemeth, without difpenfation); it is faid to have been adjudged, that both the two firft fhould be void. Gibf. 907. Noy. 149. And the words of Hobart are; I hold, if a man take a trialty, which is not allowed him, he cannot by that take take two benefices, because his difpenfation is void. Hob. 158. The rule of the canon law is, that if a perfon having two benefices incompatible, fhall by difpenfation accept a third, and be in quiet poffeffion thereof, the two first shall be ipfo facto void. Gibf. 907. Upon all which confiderations, if a third benefice is to be taken by one who already holds two by difpenfation, the best way is to determine which of the two he will hold with the third, and to make the other void by refignation, before he accepts the third. Gib 907. Shall procure and obtain at the court of Rome] In the catalogue of faculties which were grantable at Rome in the times of popery (befides the common dispensations to hold two, three, or four benefices incompatible) are thefe three that follow: 1. A difpenfation to whatfoever and how many foever benefices incompatible to the value of 500 1. a year. 2. To the value of 1000l. a year. 3. Without any restriction. The price of each rifing gradually, according to the degree of favour and profit. Gibf. 907. And how much the practice, as well as law, of holding pluralities was altered by this ftatute, from what it was whilst the right of difpenfation refted in the pope; will appear (amongst many other fuch like which might be mentioned) from the famous inftance of Bogo de Clare, rector of St. Peter's in the Eaft in Oxford; who, in the eighth year of king Edward the first, was prefented by the earl of Gloucefter to the church of Wyfton in the county of Northampton, and obtained a difpenfation to hold the fame, together with one church in Ireland, and fourteen other churches in England in nine different diocefes; all which benefices were valued at that time at 2681. 6s. 8d. Ken. Par. Ant. 292. Gibf. 907. Wood's Hift. et Antiq. Univ. Oxon. 116. [Finally by the 36 G. 3. c. 83. f. 3. which recites the expediency, that churches, curacies, and chapels, augmented by the governors of Queen Anne's bounty, and declared to be perpetual cures and benefices by 1 G. 1. f. 2. c. 10. fhould be fubject to the fame rules as benefices, with refpect to the avoidance of other benefices; it is enacted, that fuch augmented churches, curacies, and chapels shall be confidered in law as benefices prefentative, fo that the licence thereto fhall operate in the fame manner as inftitution to fuch benefices, and fhall render voidable other livings in like manner as inflitution to the faid benefices; and it shall be lawful for the bishop, or ordinary, within whofe jurisdiction such augmented H 2 |