v. said Whitehead; and further, that, on 31 October, 1759, the Bp. of LINCOLN plaintiff had nothing in the advowson. To both these rejoin- WOLFERSTAN ders the plaintiff demurs, and assigns many special causes of demurrer; and the defendants join in demurrer. And, after several arguments in C. B. the Court gave judgment for the plaintiff (≈). Blackstone, for the plaintiff's in error (the defendants below), waved entering into the pleadings, till the counsel for the defendants should rely on particular exceptions; but insisted, that, if there were any defect in the rejoinders, the replica*tion was previously bad by introducing new matter, which does [ *492 ] not avoid the force of the defendant's plea, viz. the fact of induction, without confessing or denying the fact of institution, alleged by the plaintiffs below. And, in respect of the merits, he argued, 1. That, when a church is void, the advowson cannot be granted over, as well for the danger of simony, as also, because it is a chose in action (a); Dyer, 26; Jenk. 236; Dyer, 282; Cro. Eliz. 600, Bennet and Bishop of Norwich; Ibid. 788, Baker and Rogers. And Agard and Bishop of Peterborough, Anders. 15; Dyer, 129; Moor, 12; Bendl. 43; which hold the law to be so, in respect of the present avoidance. So a lease of the advowson for twenty-one years, granted after vacancy, is void for the present avoidance; Stevens and Disley, And. 15, Bendl. 192. The like of a grant of an advowson in fee; Leak and the Bishop of Coventry, Cro. Eliz. 811.-2. That, when a church is void for six months, and no presentation offered, the Bishop may collate in right of lapse, which is too clear to need being supported by authorities.-3. That the church of Great Sheepy did actually become void by Gresley's institution to Seale, on 31st October, 1759; so as to prevent any grant of the advowson, and so as that the tempus semestre (b) for the Bishop's lapse did then begin to incur. To be sure, the words of the stat. Hen. 8 are, " Upon institution and induction;" and yet, in Digby's Case, 4 Rep. 78 (reported Moor, 434, and Goldsb. 162, under the name of Robins and Prince), it was held, that institution alone to a second makes the first benefice void; so that no dispensation will operate to make them tenable together. Else a man might be instituted to several benefices, and never inducted, but obtain a sequestration, and so elude the statute. This case unanimously ruled by all the twelve Judges, Moor, 448; and recognized as clear law, Hob. 157, 158. If then, in these circumstances, it is so void as not to be the object of a dispensation, it cannot be the object of a grant. And if not presented to within six months, the lapse to the Bishop shall accrue; for it is completely void. Else the statute might be *eluded by connivance of the patron and ordi- [ *493 ] nary, in case the clerk defers his induction: for if lapse does 66 (z) 2 Wils. 174, where the pleadings are set out at length. (a) Lord Mansfield and Mr. J. Wilmot both said, that the true reason why a grant of a fallen presentation, or of an advowson, after avoidance, is not good, quoad the fallen vacancy, is the public utility, and the V. WOLFERSTAN. Bp. of LINCOLN not accrue to the immediate ordinary, it cannot accrue either to the Archbishop or the Crown; 2 Roll. Abr. 367 (c). If a clerk be only instituted to the first living, and afterwards accepts a second, the first is clearly void: so adjudged in Common Pleas, Digby's Case, 4 Rep. 79. A plurality, therefore, so as to cause a vacancy, may commence by mere institution to one of the livings, and it is indifferent (in point of reason) whether that one be the first or the second living. Objected, that as institution is a matter of spiritual cognizance, notice must be given to the patron before lapse shall begin to incur. To this I answer-1. That, as induction has in fact been had, it shall relate back to the time of institution. It is allowed, that the patron must take notice of induction. He must know that institution has preceded it, and is bound to enquire when that institution was given.-2. If no induction had followed, then if no lapse can incur till notice of the institution, the patron and ordinary might combine (as before observed) to defeat the statute, and put livings of 87. value upon the same footing as those under 81., which render a prior benefice only voidable, and not actually void. For, by the common law, which adopted the decrees of the Lateran Council, upon the clerk's accepting a second living the patron might present to the first, be it of any value whatever. But no lapse could incur till the clerk was canonically deprived, and notice thereof given to the patron; Godb. 23. By the statute, if of 8l. value, the first is ipso facto void, without any sentence of deprivation; Armiger and Holland, 4 Rep. 75, Cro. El. 601: and the same is laid down, Dyer, 237. And no notice is requisite in this case, the avoidance being by act of Parliament, and not by canonical deprivation. In Shute and Higden, Vaugh. 131, it is said by the Court, that, according to Digby's Case and Holland's Case, institution to a second living so vacates the first, that the patron may present, if he will: but no lapse shall incur till de[ *494 ] *privation, and notice. But if the first is of the value of 8., or above, the patron at his peril must present. So in cases of avoidance for non-payment of tenths, by stat. 26 Hen. 8, c. 3, the patron must take notice at his peril. Watson, 49. Besides, who is bound to give notice? Not the Bishop, who institutes to the second living, for he is an entire stranger to the first: nor the Bishop who is ordinary of the first living, for he is a stranger to the fact of institution to the second. And therefore, Bishop Gibson says truly, Cod. 769, that notice is only necessary, where the avoidance is occasioned by an act between the incumbent and the ordinary of the vacant living. And, by the rules of the common law, Cro. Car. 392, Cart. 172, where notice ought to be given, the law appoints who shall give it; and if none is bound to give it, the party shall take notice at his peril. Burland, Serjeant, for the defendant in error, gave up the point of title in his client in case the Court could take notice (c) 2 Burn's Ecc. Law, 358, acc. (ed. 1809.) v. WOLFERSTAN. from the pleadings, that the institution of Gresley to Seale Bp. of LINCOLN was prior to the grant of Great Sheepy to Mr. Wolferstan. But he insisted, that lapse did not begin to incur till after induction to the second living; and cited Moor, 434; Lyndewode, 135, 137, 138, from whence the wording of the statute Hen. 8 is copied; and therefore the construction must be the same: That in Agard and Bishop of Peterborough, issue was taken on the induction, which shews, it was thought to be the material point. Per Cur'.-You need not labour that part of the question. Que de Ceo? It has been determined over and over that the second living is not accepted so as to create a lapse, till induction. Digby's Case extends only to dispensations, and is by no means a general rule (d). under a scilicet is materially averred. Burland.-Then, as to the first point, we say, it is not ma- Qu. Whether terially averred in the pleadings, that institution was given on the time alleged 31st October, but only under a scilicet, which is not traversable; and any other day may be given in evidence, previous to the 22d of December; for that is the material allegation, that Gresley was instituted before the 22d December, (viz. 31st *October) which specification is only circumstance, and if re- [ *495 ] pugnant to the matter before alleged, is merely void and shall be rejected; Yelv. 122; Skinn. 660; 2 Lev. 11; 5 Mod. 286. That Whitehead's rejoinder is plainly a departure (e), by alleging, for the first time, that the plaintiff had nothing in the advowsont. That if the replication was informal, the plea was worse by not confessing, traversing or avoiding the fact laid in the declaration, that the living became void the 22d December; "N. B. The truth was, that the pleaders had never before observed the flaw in the plaintiff's title; but originally meant to try only the question, whether the institution or induction occasioned the vacancy.”—Note by the Reporter. (d) For to an avoidance by 21 H. 8, c. 23, an induction into the second living is necessary by the express words of the act, s. 9; and it would be unreasonable if it were not, because the patron is at his peril to take notice of such avoidance, 4 Rep. 75 b, 76 a: for institution is a private act, but induction an act of notoriety. But where the first living is not of the yearly value of 81. in the King's books, there the same will not be void by the statute, but only by the canon law, and therefore no lapse will incur in this case without notice; 4 Rep. 75 b: but with notice it seems it will; Ib. And it was resolved, 4 Rep. 79 b, and as appears by Moor, 448, agreed to by all the other Judges of England, that it would be very inconvenient, if the first benefice should not be void by institution to the second by force of the canon there mentioned; for then one might be instituted to divers benefices with cure, and no other could be presented to any of them and therefore in this last case the patron may present without notice, if he pleases; MSS. Serj. HILL. The Court of C. P., when this case was before them, seisin. (e) 2 Wms. Saund. 84 a; Com. Dig. Pleader, F. 7. V. Bp. of LINCOLN but merely stating a new fact, the vacancy by institution on the 31st October, as the plaintiff had before alleged, whereas he alleges no such thing. WOLFERSTAN. And of this opinion was the Court, that the time of institution was not materially averred in the rejoinder, being only under a scilicet; and that the plea was bad for the reasons given by the Serjeant: and therefore they affirmed the judgment, unless cause shewn before the end of the Term. Afterwards Blackstone shewed for cause, that the true distinction is, that where the time at which a fact happened is immaterial, and it might as well have happened at another day, there, if alleged under a scilicet, it is absolutely nugatory, and is therefore not traversable; and, if it be repugnant to the premisses, it shall not vitiate the plea; but the scilicet itself shall be rejected, as superfluous and void. But, where (as in a question of lapse) the precise time is the very point and gist of the cause, there the time alleged by a scilicet is conclusive and traversable, and it shall be intended to be the true time, and no other; and if impossible or repugnant to the premisses, it will vitiate the plea; if true, will support the defence (ƒ). (And this distinction he was prepared to support by authorities, viz. [ *496 ] Latch. 209; Cro. Jac. 96, 428; Stra. 233; Cro. Jac. 618; Yelv. 93; Latch. 200; and especially Skinner and Andrews, 1 Saund. 169). And then, though the plea be informal in other respects, yet if sufficient dates appear on the pleadings, the Court will pick out a good defence, though the pleaders happened to overlook it. But by WILMOT and YATES, Js.-When the plea is bad, it is a mere nullity; and from a nullity you can gather nothing: but the declaration, which states a good title in the plaintiff, stands alone and unanswered. Therefore, though this is a very hard case, yet per tot. Cur. (absente DENNISON), The judgment must be affirmed. (f) Mr. Serjeant Williams says, that this difference taken by Blackstone is well founded; 2 Wms. Saund. 291 c: see also 1 Wms. Saund. 170, n. (2); Gunmakers' Comp. v. Fell, Willes, 390; Grimwood v. SWAN v. BRoome. S. C. 3 Burr. 1595. If the vouchee ERROR from the Common Pleas on a common recovery, in die on the re turn day of the writ of summons, being Sunday, the recovery is bad; post, 526. which Thomas Broome was demandant, George Green the tenant, and Edward Swan the elder and Edward Swan the younger were vouched, and vouched over the common vouchee. The writ of entry was returnable crast. Pur., on which day the writ of summons (g) was tested, and made returnable in one (g) The writ of summons, or summoneas ad warrantizandum, should be tested within four days inclusive from the return of the writ of entry or præcipe quod reddat; Barnard v. Woodcock, post, 1201; Cruise's Rec. 119: and the writ of summons must now (by 24 G. 2, c. 48, s. 8) have four returns, both inclusive; Ibid. Where the vouchee appears by attorney, the warrant of attorney should bear date after the teste month of Easter. The error assigned was, that the return of the writ of summons was on Sunday the 13th of May, on which day it is entered on the roll that the vouchees came, &c.; whereas in fact, on that day Edward Swan the younger died. SWAN บ. BROOME Walker, for the defendant in error, argued, that the judgment was given during the life of Edward Swan, for it shall relate back to the first, or essoign, day of the Term (h). Every Term has several returns. Each return is divided into several remarkable days; 1. The essoign day: 2. The day of exceptions: 3. The return day: 4. The quarto die post, the dies amoris, or day of grace. In Stanford and Cooper, Cro. Car. 102, a statute was acknowledged 22d January: a judgment [ *497 ] entered the 23d: determined, that the judgment related back to the essoign day, 20th January, and therefore was prior to the statute. Dyer, 361 a; a release on 21st January shall not stop the taking an inquest on the 23d, by a plea puis darrein continuance; for the continuance, on which the inquest is by relation taken, is on the essoign day, January 20th. Litt. Rep. 185; the essoign day is the return of the writ. 1 Bulst. 35; judgment in full Term shall have relation to the essoign day. Stra. 882, Fuller and Jocelyn; the party died 18th April; judgment signed the 22d. It shall have relation to the 15th, which was the first day of Term, and be valid (i). The statute of frauds (k) has respect only to purchasers, and is therefore conclusive, that in other cases judgment shall still relate to the first or essoign day of the Term. 2dly. If the Term must be divided, because the writ of summons is expressly returnable in one month of Easter, still the judgment must relate to the essoign day of that return, viz. 13th May; on which day Edward Swan was living. Objection 1. Judgment shall not be intended to be given till the 16th of May, the quarto die post; it being a judgment by default, according to the distinction in 1 Bulstr. 35. Answer. It appears by the record, that Edward Swan was present in Court on the return day, therefore it is no judgment by default of his appearance. Objection 2. The return day is on a Sunday; therefore, it cannot be intended, that judgment was given that day, but, at soonest, on the Monday following. Answer. Sundays have been differently considered, in different nations, and at different periods. Vide stat. 28 Ed. 3; 27 Hen. 6, c. 5; 4 Ed. 1, c. 51; Co. Litt. 135 a; stat. 5 & 6 Ed. 6, c. 3; 1 Eliz. c. 2; 1 Car. 1, c. 1, and [29 Car. 2, c. 7](). Sales made on a Sunday are good; Cro. Eliz. of the writ of summons: but as the vouchee may appear in person without any summons, if the warrant of attorney to vouch bear date before the writ of summons, the recovery will be good, though the warrant and other process be void; for it shall be intended, that the vouchee being present in Court made the attorney; Wynne v. Lloyd, 1 Lev. 130, I Sid. 213.-See also Wynne v. Thomas, Willes, 563, 7 Mod. 492; 2 Wms. Saund. 42 i; F. N. B. [134]; Co. Lit. 101 b. (h) The essoign day of Easter Term in VOL. I. that year was the sixth day of May. The (i) See also Belk v. Broadbent, 3 T. R. (k) 29 C. 2, c. 3, s. 15. (1) See the cases and statutes collected in Burn's Just. tit. Lord's Day; Com. Dig. Temps. (B 3). DD |