By the statute of Prerogativa Regis, "Of churches being No lapse from vacant, the advowsons whereof belong to the king, and other the king. present to the same, whereupon debate ariseth between the king and other if the king by award of the court do recover his presentation, though it be after the lapse of six months from the time of the avoidance, no time shall prejudice him, so that he present within the space of six months."

The meaning of which statute is, that where a church belonging to the patronage of the king is litigious, and not recovered in six months, lapse shall not incur, as in the case of a common person; but the last clause seems to be a limitation of that privilege: viz., on condition that the king present within the space of six months after it is recovered; and if he present not, then lapse to incur. But it being a maxim in law, that nullum tempus occurrit regi, and the restraining words being not express, that the prerogative shall be restrained in that particular; but only words of implication; the law is taken to be that the church can in nowise go in lapse from the king (x).

And therefore there is no remedy against a neglect in the king to fill vacant churches, but only the ordinary's sequestering the profits of the church, and appointing a clerk to serve the cure (y).

vantage of

After a church is lapsed to the immediate ordinary, if the Patron's right patron presents before the ordinary has filled the church, the where adordinary ought to receive his clerk. For lapse to the ordinary the lapse is is only an opportunity of executing a trust, viz., of seeing the not taken. cure supplied in case of the patron's neglect; which being performed by the patron himself, the ordinary can take no advantage by it (≈).

And the like law is, if lapse be accrued to the metropolitan : for then, if the patron present to the inferior ordinary, whilst the church remains void, he is bound to receive his clerk, and the metropolitan is barred (a).

But if the ordinary of the diocese or metropolitan has collated his clerk, whilst the turn was respectively theirs, although the clerk be not inducted; the patron's clerk, if after that presented, is not to be admitted (b).

Or if the inferior ordinary, after the time is gone by lapse to the metropolitan, has collated his clerk to the benefice that is in lapse, although this collation be tortious to the metropolitan, yet it seems that it takes away the presentation of the patron, so that he shall not present, and is only an usurpation upon the metropolitan (c); and thereby the metropolitan is put out of possession, and driven to his quare impedit (d).

Gibs. pp. 766, 770.

Ibid. p. 770; 18 Edw. 3, 21; 14 Hen. 7, p. 21; Dr. & St. Dialogue 2, c. 36.

(z) Wats. c. 12, p. 117.

(a) Ibid.; Keilwey, p. 50; 1 Anders. p. 148; Booton v. Bp. of Rochester, Hutton, p. 24; Dr. & St.

Dialogue 2, c. 36.

(b) Wats. c. 12, p. 117; Dyer, p.

277.

(c) 2 Roll. Abr. pp. 350, 368.

Wats. c. 12, p. 117; Green's case, 6 Co. p. 30 b; Boswel's case, ibid. p. 50.

As against the crown.

No lapse of a donative.

It has been a question, whether the bishop ought to admit the patron's clerk after the title of lapse is passed from the metropolitan to the king (e). On which Dr. Watson says, that by Hobart, the patron's presentation takes place after the church is lapsed to the king, if it be exhibited to the ordinary before the king's; because the patron's right to present continues until the title by lapse be executed, and the king's title is not vested in him in this case absolutely, as other titles are, but conditionally, viz., if he presents before the patron; because the king has it only as supreme ordinary. But by others, the turn is by lapse so vested in the king, that if the patron's or other person's clerk be admitted to a church, after it is come to the king by lapse, the king by quare impedit may recover the presentation, and remove such clerk. And this latter opinion is taken to be the law. So if the king has title by lapse to present to a prebend of his free chapel, for that the dean thereof has not collated to it within six months, though the dean collates before the king presents, yet the king shall remove his clerk (f).

Hobart had said that the patron's title continued against the king as well as the ordinary, till the lapse be executed (g).

And this power in the king is in effect the same that the pope claimed and exercised, as appears by the direction given to his legates in this very case, which became part of the body of the canon law; where, speaking of such benefices or dignities as were lapsed to him, and filled by the patrons notwithstanding such lapse, he orders them to permit the persons so presented, if they be persons fit and sufficient, peaceably to enjoy the same; otherwise that they remove them, and put others sufficient in their places (h).

But if in such case the patron's clerk is suffered to die incumbent, or is deprived, the king's turn is served, and he has lost the advantage of the lapse. Upon which head all the books are clear, as to death; and most of them, as to deprivation; but many of them will not allow the same reason, in case of resignation, because there is room to suspect fraud and covin (i).

A donative remaining void never goes in lapse, unless it be specially provided for by the foundation, or by composition afterwards; but the ordinary may compel the patron to fill the same by ecclesiastical censures (k).

But if it is augmented by the governors of Queen Anne's bounty, it will lapse in like manner as presentative livings (7).

(e) Dyer, p. 277.

f) Wats. c. 12, p. 118.

(g) Colt v. Bp. of Coventry, Hob. p. 154; acc. Booton v. Bp. of Rochester, Hutton, p. 24; contra, 2 Roll. Abr. p. 368; Cumber v. Episcopum Chichester, Cro. Jac. p.

216.

(h) Gibs. p. 770; X. i., 10, 4.

Ibid.; Baskervile's case, 7 Co.

p. 28; Beverley v. Cornwall, Cro. Eliz. p. 44; 1 Anders. p. 148; Rex v. The Bp. of Winton, Cro. Jac. p. 53; and Cumber v. Episcopum Chichester, ibid. p. 216; Pinson's case, Hetley p. 125.

(k) Wats. c. 12, p. 109; Fairchild v. Gaire, Yelv. p. 61; see p. 236, supra.

(7) 1 Geo. 1, st. 2, c. 10, s. 6.

lan

Who shall

have the profits during

vacancy of a

MR. SERJEANT STEPHEN observes (b) (reciting in part the guage of Blackstone), "It is only in an estate per autre vie . . . that our law affords an example of the title by occupancy. It is difficult at least to put any other instance wherein there is not benefice. some owner of the land appointed by the law. In the case of a sole corporation, as a parson of a church, when he dies or resigns, though there is no actual owner of the land till a successor is appointed, yet there is a legal potential ownership subsisting in contemplation of law; and when the successor is appointed, his appointment shall have a retrospect and relation backwards, so as to entitle him to all the profits from the instant that the vacancy commenced."

By the common law of the church, the profits of the vacation were to be laid out for the benefit of the church, or reserved for the successor; but by special privilege or custom, the bishop or archdeacon might have the same, or some part thereof; so also, it is said, the king might take the profits of a free chapel, and the patron of a donative the profits of such donative, during the time of vacation (c).

But by 28 Hen. 8, c. 11 (d), it is enacted in substance as 28 Hen. 8, follows: Forasmuch as in the statute for the payment of first c. 11. fruits (26 Hen. 8, c. 3), it is not declared who shall have the

fruits, tithes, and other profits of spiritual promotions, offices,

(a) The history of the ancient ecclesiastical law upon this subject will be found in Thomass. pt. iii., 1. 2, c. 51, vol. viii. pp. 326-360, "De spolio et de statu rerum ecclesiæ sede vacante."

(b) Stephen's Comm. ed. 1880,
vol. i. pp. 418, 448.

(c) Lind. p. 137; Gibs. p. 748.
(d) See, on the construction of
this statute, Halton v. Cove, 1 B. &
Ad. p. 538.

benefices and dignities, during the time of vacation thereof, divers of the archbishops and bishops of this realm have not only, when the time of the taking of tithes hath approached deferred the collation of such benefices as have been of their own patronage, but also have upon presentations of clerks made unto them by the just patrons deferred to institute, induct, and admit the same clerks, to the intent that they might receive to their own use the same tithes growing and arising during the vacation, so that through such delays (over and above the first fruits) they have been constrained to lose all or the most part of one year's profits, to their great loss and hindrance: it is therefore enacted, by sect. 1, that the tithes, fruits, oblations, obventions, emoluments, commodities, advantages, rents, and all other whatsoever revenues, casualties, and profits, certain and uncertain, belonging to any archdeaconry, deanery, prebend, parsonage, vicarage, hospital, wardenship, provostship, or other spiritual promotion, benefice, dignity or office, growing or coming during the time of vacation, shall belong to such person as shall be thereunto next presented, promoted, instituted, inducted, or admitted, towards the payment of his first fruits (d).

By sect. 2, 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 shall 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.

To such Person as shall be thereunto 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, entitled to all the profits (e).

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, the profits of course shall pass to him who shall be next presented, instituted, and inducted (ƒ).

But though the church becomes void by the omission of some subsequent duty to be performed, yet having been full by

(d) Vide infra, Part V., Chap. p. 62; Gibs. p. 749; 17 Vin. Abr. VIII., sect. 1.

(e) Whistler v. Singleton, 1 Roll.

p. 495.

(f) Gibs. p. 749.

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 commences from thence (g).

Inducted or admitted.]—This cannot be understood disjunctively, as if presentation or admission (without institution and induction) entitled 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 (h).

benefice be

Anciently upon the death of an incumbent, without any Sequestration formal sequestration, the rural dean was to take the vacant issued, on a benefice into his safe custody, and to provide for the necessary coming void. cure of souls; and to take care that the glebe land was seasonably tilled and sowed, to the best advantage of the successor, to whom he was to give up the intermediate profits, and be allowed his 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 œconomi, or lay guardians of the church (i).

For now, the ordinary way of managing the profits of vacation is by sequestration granted to the churchwardens (k).

The churchwardens, having taken out a sequestration under Management the seal of the bishop, are to manage all the profits and expenses of the profits. of the benefice for the successor to plough and sow the glebe, thresh out and sell corn, collect tithe rent-charge, repair houses, make up his fences, pay his tenths, and what other things are necessary during the vacation (1).

The sequestrators could not formerly maintain an action for tithes in their own name, at common law, nor in any of the temporal courts; they could do so, however, in the spiritual court, or before the justices of the peace in such cases as the law empowers them to hear and determine (m).

But now by 12 & 13 Vict. c. 67, s. 1, a sequestrator may, in 12 & 13 Vict. his own name, sue at law or in equity, or levy a distress, or take c. 67. any other proceeding which might have been taken or levied by May sue. any incumbent, if the benefice had not been under sequestration.

Gibs. p. 749.

(h) Ibid.

(i) Ken. Paroch. Ant. p. 647. (k) Gibs. p. 749; see God. App. P. 14.

(1) Vide infra, Part IV., Chap. XII., sect. 5.

(m) Johns. p. 131. See Berwick v. Swanton, Bunb. p. 192; Harding v. Hall, 10 M. & W. p. 42.