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wards presented the plaintiff to the succeeding Bishop of Hereford, to be admitted, &.c, and that the plaintiff Was afterwards duly admitted, instituted, and inducted; and then claimed the value of the tithes taken by the defendant to his own use, in the interval between the first presentation of the plaintiff and his admission, institution, and induction under the second.

The defendant pleaded, that "the rectory of Stoke Lacy, at the times mentioned, was, and still is, a benefice with cure of souls, below the yearly value of 8/. according to the valuation thereof in the king's books." To which plea there was a general demurrer and rejoinder.

There was a second count in the declaration, which, after stating the presentation of the plaintiff to the vicarage of Ocle Prichard, as in the first count alleged directly, that "the said Thomas Apperley thenceforth ceased to be rector of the rectory of the parish church, in fact or of right;" to which second count the subsequent pleadings were the same as to the first count.*

Ludlow, Sergt. for the defendant, abandoned the pleas, but took exception to the declaration.

In order to sustain this action, the plaintiff must shew on the face of his declaration that, during the time for which he claims to recover the tithes, the living of Stoke Lacy was vacant within the meaning of the statute 28 II. 8 c. 11; for he who seeks to recover by virtue of a statute must shew himself to be strictly within its provisions; Com. Dig. Pleader (C.) 76. Under that statute, the acceptance of a second living does not render the first void, unless the first be above the value of 8/. a year, or the incumbent has actually resigned. If the first living be under the value of 81. a year, it is only voidable upon the acceptance of a second; and sentence of deprivation, death, or resignation, is necessary to complete the vacancy. Watt. Clerg. Law, c. 2.

It is not sufficient, therefore, for the plaintiff to allege merely that the in

cumbent of Stoke Lacy was inducted into Ocle Prichard: he ought further to allege, either that Stoke Lacy is above the value of 8/. a year, or that sentence of deprivation has been passed on the former incumbent; or that he has resigned, or is dead. (See the argument for the defendant, and the judgment, in Halton v. Cove.)f While the first living is only voidable, the original incumbent may sue for the tithes: S Roll. Abr. 3C3.

The allegation in the second count, that "the said Thomas Apperley thenceforth ceased to be rector of Stoke Lacy," is no more than the conclusion of the pleader from the facts before stated; and those facts do not warrant the conclusion.

Stephen, Serit. for the plaintiff.

That allegation is in itself a direct and positive allegation of fact, on which the defendant might have taken issue, and which he has admitted by pleading over. The second count is, therefore, clearly sufficient; and even if the allegation, that Apperley accepted another living, be taken to shew that the living of Stoke Lacy became thereupon only voidable, the further allegation, that the plaintiff was presented, instituted, and inducted into Stoke Lacy, taken in conjunction with the former, establishes that it wns completely vacant. Stoke Lacy, however, whether it be above the value of 8/. a year, or under, became void to all intents upon the incumbent's accepting another living. If it be above 8/. a year, it became void under the statute 23 El. VIII. c. 11; if of less value under the Canon law, which, upon such an occurrence, declares, without qualification as to value, that the incumbent eo tit ipso jure privatut. Apperley v. Bishop of Ilereford.J—Cur. adv. vult.

Tind.u., C. J. (after stating the case as ante, p. 352.),—though it was contended, in the course of the argument, that the direct allegation in the second count, of Thomas Apperley having ceased to be the rector of Stoke Lacy, being admitted in the course of the pleadings, there was an end to any question whether the church was vacant or not; yet, inasmuch as it may be fairly coutended that such allegation, though direct iu point of form, is no more in substance than a legal inference or conclusion from the facts stated in the same count, we think it better to found our judgment upon the general question raised upon the whole record.

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The question raised appears to be this:—The patron of a benefice, with cure of souls, under the value of 8/. in the king's books, being also the incumbent of the same benefice, accepts another benefice with cure, and thereupon presents a clerk to the proper ordinary, who is afterwards admitted, instituted, and inducted on his presentation :—whether the first-mentioned benefice is to he considered vacant within the meaning of the 28 Hen .VI11, c. 11, from the time of the presentation to that benefice, or from the time of induction only?

The general object of the statute 28 llcn.Vl II. c. 11, was,as is stated in the preamble, to supply a defect in the former statute 26Hen.VIII. c.5, wherein express mention and declaration had not been made, "from what time the year shall be accounted in which the first fruits shall be due and payable to his Majesty, whether immediately from the death, resignation, or deprivation of every incumbent, or from the time of admission or new taking of possession in every such promotion. The three instances mentioned in the preamble are introduced only to shew the nature of the vacancy intended, not to restrain the operation of the act to those three particular cases. For the union of two livings (a case that will be afterwards more particularly adverted to', the session of a living, where the incumbent is created a bishop, are instances where the former living is as absolutely void, and the vacancy is as much a vacancy in fact, without any further act done to complete the avoidance, as in the three cases especially adverted to in the preamble. When, therefore, the statute afterwards proceeds to enact, generally, " that the said year in which the first fruits shall be paid to the king's grace shall begin and be accounted immediately after the avoid

ance and vacation of any such benefice," and " that the tithes and other profits growing, prising, or coming during the time of vacation, shall belong and affere to such person as shall be thereunto next presented, promoted, instituted, inducted, or admitted, towards the payment of the first fruits to the king's highness," the manifest object of the statute is, that in all and every case where there is a complete avoidance of a benefice, and, consequently, a vacation in fact, the tithes shall belong to the successor from the date ot such avoidance, in order to enable him to pay the first fruits, the year of which payment is declared to commence from the same point of time. The mischief intended to be remedied, was that of the bishops and others at that time deferring to collate to benefices, or to institute clerks presented to them for an unreasonable time, to the intent that they might take to their own use the tithes growing during the vacation. The act, therefore, as well on account of its being a remedial act, as on account of the general words of the 'enactment, ought to have a liberal construction, and to be made to comprehend every case that falls within the mischief; and, at all events,ought to have such a construction, as that the tithes which arise in vacation, within the proper meaning of that term, shall be payable in every case, either to the former, or the succeeding incumbent.

The question, therefore, is, when does the vacation of this benefice commence? The law, as to the avoidance of a former benefice by the acceptance of a second, with cure, may be considered with reference to three cases: first, where the former benefice is of the value of 8L or above, in the king's books; second, where the former benefice is below the value of 8/. and the incumbent of the former living is not also the patron, but is a separate and distinct person; thirdly, where the former benefice is below the value of 8/., but the incumbent of the former benefice is, at the same time, the patron of it. And it mny be convenient to see how the law stands with respect to the two former cases, before wc come to the consideration of the third case, which is the case actually before the Court.

As to the first case, the rule of law is clear upon the construction of the statute 21 Hen. VIII. c. 13. By the ninth section of that statute, it is enacted, " that immediately upon the possession of the second benefice, the first benefice shall be adjudged void." And aguin, by section 10, "that it shall bo lawful for the patron thereof to present another, as if the incumbent had died or resigned1." In such case, therefore, it is clear that, upon the possession of the second benefice, the first becomes actually vacant; that the incumbent is put out of possession of the first by the operation of the statute, without any sentence of deprivation, as if he were dead or had resigned; and that the former living is void tie facto, not only as to the patron,—who is bound to take notice of the avoidance from the time of the induction to tlie second living,—but also with respect to strangers, such as the parishioners, who might plead the induction to such second living, as an answer to any demand for tithes by the former incumbent, accruing subsequently to his acceptance of the second living.

As to the case secondly above put, it is equally clear, that, where the former living is below the value of 8/. and the incumbent has accepted a second benefice with cure, so far as the patron is concerned, the former benefice is not absolutely void, but voidable only at the election of the patron. It is so far void, that the patron may present another to it if he will, and the ordinary may admit and institute upon such presentation; but if the patron will not present, no lapse shall incur, until there is sentence of deprivation as to the first benefice, and notice thereof has been given to the patron. This was resolved in Holland's case, and in Dygby's case,* and often before. In such a case, therefore, it would be clear that the provisions of the statute 23 Hen. VIII. c. 11, would not apply till actual deprivation. For, notwithstanding the acceptance of the second benefice, the

first benefice is full, as to strangers, until deprivation; the first incumbent, notwithstanding his acceptance of the second living, having the power to sue for and recover the tithes until actual deprivation, according to the authority of Yelverton, J., as given in 2 Roll. Abr. 361.

But the case now before the Court, is one where the person who presents to the first benefice is, at the same time, both patron and incumbent; where the act of presentation is not an act done by a stranger without notice to him, the patron, but is the act of the individual patron himself. And we think that circumstance so for distinguishes this from the case last considered, that it makes the first benefice actually void from the time of such presentation, within the meaning and the provisions of the statute 28 Hen. VIII. by rendering any sentence of deprivation altogether unnecessary and inapplicable.

The distinction between the two cases may, perhaps, be more clearly seen, by considering first, how the rights of the individual, who is at once the patron and incumbent of the first benefice, are affected as patron; secondly, how the rights of the same individual are affected as incumhent.

Now, the sole ground upon which it has been held in all the decided cases, that, where the first benefice, with cure, is less than 8/. in the king's books, the acceptance of a second, by the incumbent, makes the former voidable only, not void, as against the patron, is this, — that the avoidance, not being by the common law, or by any statute, but by the canon law only, the patron is not bound to take notice of the institution and induction to the second living, to which act he is a stranger, until it is followed up by actual sentence of deprivation and notice thereof to him.

But this ground necessarily fails where the patron is himself the person who accepts the second living, and afterwards presents to the first; for it would be absurd and unreasonable that he should set up the want of notice of his own immediate act. Aid this appears to be consistent with wliat is found in the treatise entitled," Doctor and Student," Dial. ii. c. 31; the author of which, after stating that, if the voidance be by resignation or deprivation, the six months shall begin from the time the patron has notice of the resignation or deprivation (whether he may have actual knowledge of it or not), proceeds to say that, in case of an union, which is also a cause of voidance, "there can be no union made but the patrons must have knowledge: and it must be appointed who shall present after such union; that is to say, one of them, or both, either jointly, or by turn one alter another, as the agreement is upon the union: and, sith the patron is privy to the avoidance, and is not ignorant of it, the six months shall be accounted from the agreement." Now, the case of an actual presentation by the patron of the living, to which he was also the incumbent, falls precisely within the same reason; and the living, as to him, must be absolutely void, and the six months' term for lapse must commence from the time of such presentation. In fact, he has only done that which every patron has a right to do; he has elected to consider it void without a sentence of deprivation, by making his presentation in the first instance.

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But, secondly, if the first living is actually void, as to him,in his character of patron, from the date of his own act of presentation, how can it be otherwise than void, as to him, in his character of incumbent; that is, as to all the rights between him and his parishioners? It would seem a strange and unreasonable distinction, that, when the living is void as to a man in one character,—that of patron,— in consequence of his own voluntary act of presentation, the same living should be full as to the same individual in another character, viz. that of incumbent; and that such cannot be the case, will appear from considering the nature of a presentation, and how far it is binding on the patron, when once made.

The form of the presentation, which is an instrument in the nature of a letter missive by the patron to the

bishop, expressly alleges, "that the benefice is then vacant." And the better opinion in the books appears to be, that the king only can revoke a presentation when once made: no lay patron has the power to do so: all the books agreeing that he cannot do so after institution (see Dyer, 348, and the cases cited in Watson, p. 825); but that the utmost the lay patron can do, is to vary his presentation, by offering another clerk to the bishop; out of whom the bishop may choose which he pleases.

In the case of an ecclesiastical patron, the rule is still more strict, for he can neither revoke nor vary; (Latch. Rep. 19), 254); and although it may be too much to contend, that the circumstance of the patron in this case being a clergyman, brings him within this rule, which seems rather to apply to the case of a right of presentation belonging to an ecclesiastical person in right of his ecclesiastical preferment; yet, it is enough for the present argument to shew, that he has no general power to revoke, but that the clerk, when he has once presented to the bishop, must still be submitted to the bishop's choice, though the patron may add another. The effect, therefore, of such a presentation to the first benefice, where the clerk has been subsequently instituted and inducted under it, appears to us to be, that the former incumbent can never contend that the living was not vacant, in point of fact, at the time he so presented: that, in case he should sue for the tithes which grew and arose subsequent to his presentation of the new incumbent, he would fail in his suit: and that the payment of the tithes to the successor is a good and valid payment. And if this be so, the case appears to us to fall within the remedy intended to be given by the statute; for otherwise the mischief would follow which was intended to be prevented by that act; viz. that the tithes which grew and arose since the presentation would neither be claimable by the preceding nor succeeding incumbent, but would fall either to the ordinary or to the parishioner himself: the very consequence which the statute intended to prevent.

In the course of the argument on the part of the defendant, reliance was placed on the judgment of the Court of King's Bench in the late case of Halton v. Cove.* It will be sufficient to say, that the judgment given by us is not inconsistent with the judgment in the case referred tQ. The court of King's Bench held, on that occasion, that the statute applies to the case of a living actually vacant, and that it could not apply to the case then before the Court, where the living was not, in fact, vacant, the rector still continuing in possession. But the distinction appears to us to be, that, in this case, the incumbent does not appear to have continued in possession; but, on the contrary, upon this record, which alleges the presentation to have

been made by him as patron, we must intend, as against him who has stated the living to have been actually vacant, that the living was vacant by his ceasing to be in possession, both in fact and in law.

There is no occasion to advert to the decision of this Court in the late caseof Apperley v. the Bishop of Hereford, because it turned upon a point wholly collateral to the present.

On the whole, we think the first benefice became actually vacant from the time of the presentation made to the same, and that the plaintiff is, consequently, entitled to the tithes in question from that time, under the statute of Hen. VIII.; and we, therefore, give judgment for the plaintiff. Judgment for the plaintiff.


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