Fee.

1 & 2 Vict. c. 106.

Table of fees to be taken by

officers with respect to

admissions to benefices-by whom to be established.

By 31 Eliz. c. 6, s. 5, if any person shall for any reward or other profit, or any promise or other assurance thereof, directly or indirectly (other than for usual and lawful fees), admit, institute, instal, induct, invest, or place any person in or to any benefice with cure of souls, dignity, prebend, or other living ecclesiastical, he shall forfeit the double value of one year's profit thereof, and the same shall be void as if such person were naturally dead (e).

By a constitution of Archbishop Langton, No prelate shall extort any thing, or suffer any thing to be extorted by his officials or archdeacons for institution or putting into possession, or for any writing concerning the same to be made (f).

And by a constitution of Archbishop Stratford, for the writing letters of institution or collation no more shall be taken than 12d. (g).

Till lately the ecclesiastical fees were regulated by the practice and custom of every diocese, according to a table confirmed by Archbishop Whitgift, and as is directed by the 135th Canon of 1603.

By 1 & 2 Vict. c. 106, s. 131, "The Archbishop of Canterbury, the Lord High Chancellor, and the Archbishop of York, with the assistance of the vicars-general of the said two archbishops, . . . . shall ordain and establish tables of fees, and shall have power from time to time to amend or alter such tables of fees, in respect of donation, presentation, nomination, collation, institution, installation, induction, or licence, or any instrument, matter, or thing connected with the admission of any spiritual person to any cathedral preferment or any benefice throughout England and Wales, by any officer, secretary, clerk, or minister to whom belong the duties of preparing, sealing, transacting, or doing any of such instruments, matters, and things; and. such tables or amended tables shall be submitted to her Majesty's privy council, who may disallow the same or any part thereof; and notice shall be given in the London Gazette of such submission to the privy council; and if within the space of three months from the time of giving such notice the same shall not be disallowed, such fees, or such parts thereof as shall not be disallowed, shall . . . . be deemed and taken to be lawful fees, and thenceforward such fees, and none others save only such as may be altered or subsequently ordained, as before provided, shall be demanded, taken, or received by any such officers, secretaries, clerks, or ministers respectively.. provided always, that the said persons shall not ordain or establish any fees exceeding the fee which for the twenty years next preceding the passing of this act shall have been usually taken for or in respect of the same instrument, matter, or thing, in case of admission to any cathedral preferment or

(e) Vide infra, Part IV., Chap. III., sect. 3.

(f) Lind. p. 137.

Ibid. p. 222.

any benefice within the diocese of London: provided also, that the said persons shall have power to ordain graduated scales of fees in respect of benefices below the yearly value of five hundred pounds."

By an order in council made under this act, and gazetted on Order in the 24th of July, 1857, the fees on institutions to livings and council under on licences to perpetual curacies are fixed as follows:

this act.

The clerk by institution or collation has the cure of souls Effect of committed to him, and is answerable for any neglect in this institution or point (h).

And as to the temporalities: whereas presentation gives to the clerk a right ad rem, so institution or collation gives him a right in re and therefore in virtue of collation as well as of institution, the clerk may enter into the glebe, and take the tithes; though for want of induction he cannot yet grant or sue for them (i).

But herein collation and institution differ; that by institution

(h) Johns. pp. 81, 84.

Gibs. p. 813. See Othobon, Athon, p. 137, where John of Athon

"concessio prælati jus pinguius

says,
inducit.'

collation.

the church is full, and plenarty by six months is pleadable against all persons but the king, and against the king also when he claims in the right of a common person: but by col lation 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 has also right to collate, for against him plenarty by collation is pleadWhy institu- able. And the reason why collation does not make a plenarty tion does, and 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 (j).

collation does not, make a plenarty.

Trial of institution.

Superinstitution.

First fruits.

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 has a freehold in the benefice, which must be tried at common law (k).

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-institution, as such, is properly triable in the spiritual court. 2. That it is not triable there, in case induction has been given upon the first institution (). 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 superinstitution; and Noy moved for a prohibition; for since the induction, the ecclesiastical court cannot try the super-institution; and Glanville being then in his first fruits, the prohibition was granted (m).

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 has been justly discouraged (n).

By 26 Hen. 8, c. 3, s. 1, every person "before any actual or real possession or meddling with the profits of his benefice," shall pay or compound for the first fruits and profits of the benefice for one year to the king's use, at reasonable days, upon good sureties.

1 Vict. c. 20, transfers the collection of first fruits and tenths to the treasurer of the Governors of Queen Anne's bounty (o).

(j) Gibs. p. 813; Wats. c. 12,
p. 112; 1 Inst. p. 344 b; Green's
case, 6 Co. p. 29; vide supra, pp.
342, 346.

(k) 2 Roll. Abr. p. 294.
(1) Gibs. p. 813.

(m) Pettie's case, Litt. p. 140. See also Monday v. Patar, 2 Lev. p. 125.

(n) Gibs. p. 813.

(0) Vide infra, Part V., Chap. VIII. sect. 1.

As already stated, after institution given (p), the ordinary Mandate of issues a mandate for induction, directed to the person who has induction. power to induct. 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 Lichfield used to make induction, as also did the dean and chapter of St. Paul's (q).

So if a church was exempt from archidiaconal jurisdiction (as many churches were), then the mandate was directed to the chancellor or commissary; and if 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 (r).

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 spiritualities 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 has authority to grant it), but is executed after, it shall not be void (because it is the act of one who has authority throughout his province), but only voidable at most; as was determined in the Exchequer Chamber (29 Car. 2), in the case of Robinson v. Wolley (8).

The archdeacon, or other person to whom the mandate is directed, either makes the induction in person, or directs his precept unto others to do it (t).

And the induction is to be made according to the tenor and Manner of language of the mandate, by vesting the incumbent with full induction. 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 churchyard, and says 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 inducts indorses a certificate of his induction on the archdeacon's

(p) Vide supra, p. 355. Wats. c. 15, p. 155.

(r) Gibs. p. 815.

(8) Gibs. p. 815; Robinson v.
Wolley, Jones, p. 78.
(t) Gibs. p. 815.

Vi laica removendâ.

Spoliation.

Donatives.

Free chapels.

Special

usages.

Sinecures.

Fee for induction.

mandate, and they who were present do testify the same under their hands (s).

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 lay for the clerk, which was 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 (†).

If any other clergyman presented by the same patron with the person to be inducted keeps possession, then a spoliation is grantable out of the spiritual court, whereby the profits shall be sequestered till the right be determined (u).

But donatives are given and fully possessed by the single donation of the patron in writing, without presentation, institution, or induction (x).

So if the king grants 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 (y).

And in some places, a prebendary shall have possession 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 (s).

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 (a).

By a constitution of Archbishop Stratford, it is ordained that for commissions to induct, or certificates of induction, no more shall be taken than 12d. (b).

But as to the expenses of the induction itself, it is directed by a constitution of the same archbishop 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 content with 2s.; for all and every the expenses of themselves and their servants for their diet; reserving nevertheless to the

(s) Johns. p. 84; Wats. c. 15, p. 167.

(t) Gibs. p. 783; Johns. p. 84; God. p. 645; F. N. B. pp. 54, 55, 124; Wats. c. 30, p. 307; Roberts v. Agmondesham, Moo. p. 462; see also Bird v. Smith, ibid. p. 481; and The King v. Zakar, 3 Bulst. p. 92. In the case of Ex parte Jenkins, L. R. 2 P. C. 258, this writ is said to be "an obsolete proceeding;" and it is suggested that the modern remedy would be by in