Requisites to read the Common is not material. 2. The notice ought to be certain and after induction particular, and therefore it is not sufficient for the ordinary in such case, to give notice that the presentee had not read the articles and subscribed, generally; but he ought declare assent particularly to inform the patron that he had not so done, for which default he is deprived, and that thereupon it belongs to the patron to present (n). thereunto. To keep a memorandum of the same. Evidence of compliance. If a parson or vicar claims tithes in right of the church or benefice whereof he is incumbent, he is in strictness bound to prove his institution, induction, and all things else required by law to qualify him to be incumbent of that church to which the tithes belong. But if he has been for several years in possession, he is not ordinarily put to prove these matters, unless the defendant in his defence shows some reasons why these things ought to be proved and made out. But the law does not determine how many years the plaintiff ought to be in the possession of his benefice, to excuse him from being put to the proof of these things; but that seems to be left to the discretion of the judge who tries the cause: though it seems that a small number of years', as three or four, quiet possession may be sufficient (o). And in the case of Woodcock v. Smith (1718), it was declared by the whole Court of Exchequer, that although at law they hold a parson or vicar to the proof of his admission, institution and induction, and reading the articles; yet they never do it in equity (p). In the case of Powell v. Milbank (13 Geo. 3), on an action for money had and received to the plaintiff's use, the defendant pleaded the general issue, and the cause came on to be tried before De Grey, chief justice, at the sittings after Easter term. A verdict was given for the plaintiff on the following case:-The plaintiff, in 1770, was nominated and appointed to the donative of Chesterle-Street, in the diocese of Durham, with cure of souls. He was then in priest's orders, and had subscribed the Thirty-nine Articles, and the three articles in the 36th canon, at the time of his ordination: but did not prove at the trial of the cause (though required so to do), that he subscribed the articles before the Bishop of Durham as ordinary of the diocese; nor that he had publicly read the same in the church of Chester-le-Street aforesaid, with declaration of his assent to the same; nor that he had subscribed the declaration in the statute of 14 Car. 2, c. 4, since his nomination to the donative; nor that he had a (n) Gibs. 818; 6 Co. 29. d. Kerby v. Carter, R. & M. 237. (p) Bunb. 25. (0) Bohun of Tithes, 433; Doe licence from the bishop to preach in the said church of Chester-le-Street. The question was, whether he was in a situation to maintain this action? The case was argued in two several terms; after which the lord chief justice delivered the opinion of himself, Gould, Blackstone and Nares, justices. There have been two questions made upon this case: First, whether an incumbent of a donative with cure is obliged to conform to the statutes of Elizabeth and Charles II.? Secondly, whether in this action it was necessary for him to give evidence that he had performed the several requisites contained in these statutes? As our opinion is founded upon the second question, it is not necessary, nor do we give any judicial determination upon the former. But we strongly incline to think that donatives, with cure of souls, are within all the reasons, religious as well as political, upon which those acts are founded. As to the second question, we are all of opinion, that in the present case, as no evidence was given by the defendant to raise a doubt whether the plaintiff had subscribed, it was not incumbent on him to give evidence of his having actually done so. The presumption always is, that every man conforms to the law, and that presumption shall stand till something appears to shake it. Nor is the defendant hereby put upon proving a direct negative. It is a negative qualified with circumstances. Some of these ceremonies are to be performed publicly within a limited time; registers are kept of others. And if evidence had been given that a person had regularly attended the church, and heard nothing of this matter; or if a search had been made in the bishop's register, and nothing had been found therein, this would have destroyed the presumption, and put the plaintiff on proof of his having performed those requisites. And he mentioned Dr. Sherard's case, before Mr. Justice Wilmot, at Sarum Assizes, about ten years before, where a prebendary brought an ejectment for a house belonging to his prebend, and was required to show that he had performed the requisites necessary by law to make him prebendary; the judge held that it ought to be presumed he had performed them, till something appears to the contrary (q). In order that the clerk may be prepared to make proof of these matters when called upon, it may be convenient that he have some intelligent persons, whom he may trust, present when he is inducted; and (if it may be) the same persons present at such time when he shall perform (9) Bla. Rep. 851; see p. 321, supra. Evidence of compliance. Perpetual curates. the other matters required by the law to be performed in his parish church; and to the end that they may be able to testify that all things are done as they ought to be, the clergyman may desire them to read with him, or to observe as he reads the morning and evening prayer, and also the Thirty-nine Articles; and he ought also to give them a copy of his certificate under the hand and seal of the bishop, and of the declarations which he is to read; for otherwise, if their testimony be wanted, it will be hard for them to depose that he read a true copy thereof, and that all things were done according to law. And it is also advisable that he make a writing to be subscribed by his witnesses, after this or the like form: , We whose names are underwritten do hereby certify and declare that A. B., rector of C., within the diocese of D., in the county of E., was in the presence of us inducted into his church of C. aforesaid, by F. G., rector of H., on the day of in this present year, by virtue of certain letters of induction made under the hand and seal of I. K., archdeacon of L., within the diocese aforesaid, for that purpose directed " To all and every," &c. And also that the aforesaid A. B. on the day of —, in the year aforesaid, being the first Lord's day on which he officiated in his church aforesaid [or being a Lord's day appointed and allowed by the ordinary for that purpose] did in his church aforesaid, publicly and openly, in the presence of the congregation there assembled, read the Thirty-nine Articles of Religion, and immediately after reading the same make the declaration following: "I, A. B., do solemnly make the following declaration: I assent to the Thirty-nine Articles of Religion and the Book of Common Prayer, and of the ordering of bishops, priests, and deacons. I believe the doctrine of the United Church of England and Ireland as therein set forth to be agreeable to the word of God; and in public prayer and administration of the Sacraments I will use the form in the said book prescribed and none other, except so far as shall be ordered by lawful authority." And these things we promise to testify upon our oaths, if at any time we shall be lawfully thereunto required. In witness whereof we have hereunto set our hands, this day of the year of our Lord in It only remains to mention that a perpetual curate is put in possession of his benefice by licence from the bishop without either institution or induction; and that, where there is a patron of the curacy, he nominates his clerk to the bishop for the licence. CHAPTER XII. CONTINUATION OF THE LAW OF BENEFICES. SECT. 1.-Incidents of Benefices. 2.-Miscellaneous Titles of the Law of Benefices. SECT. 1.-Incidents of Benefices. IN this section certain incidents to benefices and advowsons Subjects of have been grouped together which appeared to require section. separate notice. They are known by the legal titles of i. Lapse. 2. Vacation. 4. Commendam. 5. Sinecure. Lapse, lapsus, is a slip or departure from a right of pre- Lapse. senting to a void benefice, when the proper patron has neglected to present within six months next after the avoidance. The benefice is commonly said to have lapsed; to which he that ought to present has lost his opportunity of doing So. And in such case the patronage devolves from the patron to the bishop, from the bishop to the metropolitan, and from the metropolitan to the king; that is, to the bishop, as ordinary; to the metropolitan, as superior; and to the king, as patron paramount (a). For it is to be remembered, that churches and dioceses were of common right under the care of the bishops; and it was by particular indulgence that the patrons had the right of presentation; which being neglected, things return to common right; and therefore the bishop has a true interest, and acts not in the right of the patron, but his own. And if the bishop does not collate within six months, then it falls to the archbishop; not as ordinary, but as superior; to whom the right of devolution falls upon the inferior's neglect. Upon the metropolitan's neglect, then it falls to the king (as the lawyers express it) as patron paramount of all the benefices within the realm, by which (a) Gibs. 768. Lapse. Incurred in six months. From what time the months to be computed. is meant, that the king, by right of his crown, is to see that all places be duly supplied with persons fit for them; and if all others whom the law has intrusted do neglect their duties, then by the natural order and course of government it falls to the supreme power, which is to supply defects and to reform abuses (b). The term or space, in which title by lapse accrues successively to the forementioned superiors, is six months. The canon law upon this head did make a distinction between lay patrons, and clergymen being patrons; appointing four months in case of the former, and six months in case of the latter. But the common law observes not this distinction; but gives ecclesiastical and temporal patrons an equal title to present at any time within the six months (c). And because this computation concerns the church, therefore it shall be made according to the computation of the church, that is, by the calendar, for one half-year, and not accounting twenty-eight days to the month; and the day on which the church becomes void is not to be taken into the account (d). As to the time from which the six months are to commence, the rule of the canon law in all cases was, that the six months shall be reckoned not from the time of the avoidance, but from the time of notice; and so it is held in some of the old books (e). Semestre tempus non a tempore vacationis, sed notitiæ ipsius potius volumus computari (f). Thus Rolle says, that the six months shall begin from the time of the patron's knowledge of the avoidance; and so it was adjudged upon a writ in the time of king Edward II. As if the incumbent die beyond sea, the six months shall not be computed from the time of his death, but from the time of the patron's knowledge thereof: and so it was adjudged in a case between the Abbot of St. Mary's, York, and the Bishop of Norwich, in a quare non admisit. For the six months shall not be reckoned from the death of the last incumbent, but from the time the patron might (according to a reasonable computation, having regard to the distance of the place where he was at the time of the incumbent's death, if he were within the realm at that time) have come to the knowledge thereof: for he ought afterwards to take notice thereof at his peril, and not before, for that he was in some other county than |