But herein collation and institution differ; that by institution, the church is full, and plenarty by six months is pleadable [ 171 ] against all persons but the king, and against the king also when he claimeth in the right of a common person: but by collation the church is not full, nor is plenarty by collation pleadable, but the right patron may bring his writ and remove the collatee at any time; unless he be such patron who hath also right to collate, for against him plenarty by collation is Why Institu- pleadable. And the reason why collation doth not make a Collation does plenarty is, because then the bishop would be judge in his own cause, to the great prejudice of patrons; and therefore the bishop's collation in this respect is interpreted no more than a temporary provision for celebration of divine service, until the patron do present (m). tion does, and not, make a plenarty. 18. Institution is properly cognizable in the Ecclesiastical Court; but if after induction a man is sued there, supposing his institution was void, that shall be tried in the temporal court, because by the induction the person hath a freehold in the benefice, which must be tried at common law (n). 19. A church being full by institution, if a second institution is granted to the same church, this is a super-institution. Concerning which, two things have been resolved: 1. That the super-human institution, as such, is properly triable in the spiritual court. 2. That it is not triable there, in case induction hath been given upon the first institution (o). Petty, incumbent of a church in Cornwall, travelled into Achaia and other parts of Greece; and it not being known whether he was alive or dead, Glanville was presented, instituted, and inducted, and Petty libelled against him in the ecclesiastical court to try the super-institution; and Noy moved for a prohibition; for since the induction, the ecclesiastical court cannot try the superinstitution; and Glanville being then in his first fruits, the prohibition was granted (p). The advantage of a super-institution is, that it enables the party who obtains it, to try his title by ejectment, without putting him about to his quare impedit: but many inconveniences following from thence (as the uncertainty to whom tithes shall be paid, and the like), this method hath been justly discouraged (q). 20. By the 26 Hen. 8, c. 3, s. 2, "Every person before any actual or real possession or meddling with the profits of his benefice, shall pay or compound for the first fruits to the king's use, at reasonable days, and upon good sureties." 1 Vict. c. 20, transfers the collection of first fruits and tithes to Queen's Anne's Bounty Office. (m) Gibs. 813; Wats. c. 12; Co. Litt. 344 b; 6 Rep. 29, Green's case. (n) 2 Roll's Abr. 294. (0) Gibs. 813. (p) Litt. Rep. 140. See also 2 Lev. 125. (9) Gibs. 813. [First fruits are paid three months after institution; tenths usually at Christmas.-ED.] VI. Induction. 1. After institution given, the ordinary issues a mandate for Mandate of induction, directed to the person who hath power to induct. Induction. And this person, of common right, is the archdeacon. But by prescription or composition, others as well as archdeacons may make inductions; for by prescription the dean and chapter of Litchfield do make induction, and so do the dean and chapter of St. Paul's (r). So if a church is exempt from archidiaconal jurisdiction (as many churches are), then the mandate is to be directed to the chancellor or commissary; and if it be a peculiar, then to the dean or judge within such peculiar. And when an archbishop collates by lapse, or when a see is vacant, the mandate goes, not to the officer of the archbishop, but of the bishop (s). If a bishop dies, or is removed, after institution given, and whilst a mandate of induction is either not issued or not executed, the clerk may repair to the archbishop for a mandate of induction. This is, because the authority of the bishop is determined, and that authority devolved to the archbishop as guardian of the spiritualties sede vacante. And the same rule takes place if the bishop is visited, and his jurisdiction suspended, after institution and before induction. And though such mandate is not executed before a new bishop is confirmed (who then hath authority to grant it), but is executed after, it shall not be void (because it is the act of one who hath authority throughout his province), but only voidable at most; as was determined in the Exhequer Chamber, M. 29 Car. 2, in the case of Robinson and Wolley; a contrary judgment, which had been given in the Court of King's Bench (viz. that it was void), being at the same time reversed (t). It seemeth not clear from the words of the several stamp acts whether the ordinary's mandate for induction shall be on a 21. or on a 5s. stamp; the words are,-Every licence that shall pass the seal of any bishop, chancellor, or other ordinary, shall be on a 21. stamp; every obligatory instrument, procura- [173] tion, or other notarial act, on a 5s. stamp. [The words of 55 Geo. 3, c. 184, schedule part 1, are,Licence of any kind not otherwise charged in this schedule which shall pass the seal of any archbishop, bishop, or chancellor or other ordinary, or of any ecclesiastical court Wats. c. 15. Gibs. 815. Sir T. Jones' Rep. 78, reversing, in Gibs. 815; [Robinson v. Wolley, Court of King's Bench.] Manner of in England, or which shall be granted by any presbytery or other ecclesiastical power in Scotland £2 0 0 [Notarial act whatsoever not otherwise charged in this schedule [And for every sheet or piece of paper, parchment, or vellum upon which the same shall be written after the first, a further progressive duty of -ED. £0 5 0 £0 5 0 The archdeacon, or other person to whom the mandate is directed, either maketh the induction in person, or directeth his precept unto others to do it (u). 2. And the induction is to be made according to the tenor and language of the mandate, by vesting the incumbent with full possession of all the profits belonging to the church. Accordingly the inductor usually takes the clerk by the hand, and lays it upon the key, or upon the ring of the church door, or if the key cannot be had, and there is no ring on the door, or if the church be ruinated, then on any part of the wall of the church or church-yard, and saith to this effect: "By virtue of this mandate, I do induct you into the real, actual, and corporal possession of this church of C. with all the rights, profits, and appurtenances thereto belonging." After which, the inductor opens the door, and puts the person inducted into the church, who usually tolls a bell to make his induction public and known to the parishioners. Which being done, the clergyman who inducteth indorseth a certificate of his induction on the archdeacon's mandate, and they who were present do testify the same under their hands (a). If the inductor or person to be inducted be kept out of the church or parsonage-house by laymen, the writ de vi laica removenda lies for the clerk, which is directed out of chancery to the sheriff of the county to remove the force, and (if need be), to arrest and imprison the persons who make resistance (y). If any other clergyman presented by the same patron with the person to be inducted, doth keep possession, then a spoliation is grantable out of the spiritual court, whereby the profits shall be sequestered till the right be determined (z). But donatives are given and fully possessed by the single donation of the patron in writing, without presentation, institution, or induction (a). So if the king doth grant one of his free chapels, the grantee shall be put in possession by the sheriff of the county, and not by the ordinary of the place (b). And in some places, a prebendary shall have possession (u) Gibs. 815. (r) Johns. 77; Wats. c. 15. 481; and The King v. Zakar, 3 Bulstr. R. 92. (z) Johns. 75. without induction; as at Westminster, where the king makes his collation by his letters patent, and thereupon the party enters upon the prebend without other induction, and it is good. And in some places the bishop makes the induction, and in some places others make it, and the usage generally shall hold place (c). But the possession of sinecures must be obtained by the same methods by which the possession of other rectories and vicarages is obtained, namely, by presentation, institution, and induction (d). Induction. 3. By a constitution of Archbishop Stratford, it is ordained, Fee for that for the writing letters of institution or collation, and commissions to induct, or certificates of induction, no more shall be taken than 12d. (e) Which sum was considerable in those days, being nearly equal to 20s. now. But, (as was said before of institution), these fees are generally regulated according to the custom of the respective places. But as to the expenses of the induction itself, it is directed more at large by a constitution of the same archbishop as followeth: "We do decree, that they who are bound by the mandate of their superior to induct clerks admitted to ecclesiastical benefices shall be content with moderate expenses for such induction to be made, that is to say, if the archdeacon induct, he shall be satisfied with 40d.; if his official, he shall be contented with 2s.; for all and every the expenses of themselves and their servants for their diet; reserving nevertheless to the person inducted his option whether he will pay this procuration to the inductor and his attendants in such sum of money, or in other necessaries. And if more than this shall be taken by the inductors by reason of the premises, or if they shall take any more for making the induction by themselves in their own persons, or if they shall delay by artificial pretences to make and deliver to the clerks inducted letters certificatory of their induction; they who shall be unduly culpable in this behalf, shall be supended from their office and entrance into the church, until they shall make restitution (ƒ). That they who are bound.] By this it appears that it is not in the archdeacon's power to induct or not induct after he hath received the mandate from his superior, because he is bound to obey his mandates, and so this importeth a necessity (g). By the Mandate.] For neither the archdeacon nor any other ought to induct any person into a church without a mandate from the person instituting (h). [175] Of their Superior.] As, of the archbishop, or any other, to whom by right or custom institution belongeth (i). For such Induction to be made.] That is, for the expenses concerning the induction (k). If the Archdeacon induct.] For it is his office (saith Lindwood), to induct persons admitted to ecclesiastical benefices into corporal possession of the said benefices (7). He shall be satisfied with 40d.] Which sum in those days. was sufficient (Lindwood says), for four persons and as many horses, together with one sumpter horse (m). If his Official.] So that is not required in the induction that the archdeacon perform this act in his own person, but he may execute it by another (n). He shall be contented with 2s.] Namely, for two or three horses at the most (o). For their Diet.] To wit, victuals for themselves and provender for their horses for one day and night (p). Reserving nevertheless to the Person inducted his option.] Which at this day (Dr. Gibson saith), the person inducted hath lost by custom (9). Whether he will pay this Procuration in such sum of money.] Namely, of 40d. when he is inducted by the archdeacon, or 2s. when he is inducted by his official. But what if he be inducted (saith Lindwood), by any other than by the archdeacon or his official, but by the archdeacon's mandate; whether then may the archdeacon take any thing for such induction? I think not, (he says), but such inductor shall have from the inducted his necessary expenses suitable to his degree under the like moderation as is appointed for the archdeacon or his official (r). If more than this shall be taken by the Inductors by reason of the premises.] But whether may the archdeacons, besides the expenses for their diet, (as the constitution expresseth it), take any thing of the person inducted in the name of fees to be paid to himself and his officers (as perhaps where it hath been the custom to pay something certain on such account), without incurring the penalty of this constitution? It seemeth (saith Lindwood) that they may, to wit, for their personal labour, and other necessary expenses, exclusive of their diet as aforesaid, that is to say, without incurring the penalty hereby inflicted, for the constitution doth not prohibit them expressly, and penal laws are to be taken strictly. But they may be otherwise punished as simonists (s). Letters certificatory.] Whereby according to their mandate the inductors do certify whether they have actually inducted |