by such bishop to perform the ecclesiastical duties of such benefice during the vacancy thereof, such stipend or stipends as shall be ordered to be paid to him or them by such bishop, not exceeding the respective stipends allowed by this act, and in proportion only to the time of such vacancy." Sect. 101. "Provided always, that if the profits of such Proviso for benefice which shall have come to the hands of such payment by succeeding insequestrator during the vacancy thereof shall not be suf- cumbent where ficient to pay such stipend, the same, or so much thereof profits during as shall remain unpaid, shall be paid to such curate by insufficient. sequestration the succeeding incumbent of such benefice out of the profits thereof; and such bishop is hereby empowered and required, if necessary, to enforce payment of the same by monition, and by sequestration of the profits of such benefice." when to enter. The successor's right to enter commences immediately Successor upon his induction, but his right to the profits commences from the avoidance of the benefice (e). to account. As soon as a new incumbent is instituted and inducted, Sequestrators the sequestrators are to account to him for all the profits of the benefice which they have received during the vacancy (f). In which account they may deduct their reasonable expenses for collecting and levying the tithes, fruits, emoluments, rents and other profits rising and growing during the vacation (g). If he be dissatisfied with the account, he may bring them to account before the ordinary, by whom all things relating hereunto are properly examinable and to be determined (h). In the case of Jones v. Barret (1724) (i), on a bill by the vicar of West Dean, in the county of Sussex, against the defendant, who was sequestrator, for an account of the profits received during the vacation; it was objected for the defendant, that the bishop ought to have been made a party, since the sequestrator is accountable to him for what he receives, by 28 Hen. 8, c. 11. And the court seemed to think the bishop should have been a party; but by consent the cause was referred to the bishop of the diocese. (B.) Rights on Change of Incumbents. By 28 Hen. 8, c. 11, s. 4, If an incumbent before his Profits accru (e) As to the right of widow of incumbent, vide infra, p. 501. (f) Wats. c. 30. (g) 28 Hen. 8, c. 11, s. 3. ing when in death has caused any of his glebe lands to be manured cumbent dies. and sown at his proper costs and charges with any corn or grain, he may make his testament of all the profits of the corn growing upon the said glebe lands so manured and Common law sown. But if his successor is inducted before the severance thereof from the ground, the successor shall have the tithe thereof; for although the executor represent the person of the testator, yet he cannot represent him as parson, inasmuch as another is inducted (k). Otherwise, if the parson dies after severance from the ground, and before the corn is carried off, in this case the successor shall have no tithe; because, though it was not set out, yet a right to it was vested in the deceased parson by the severance from the ground. The same is true in case of deprivation, or resignation, after glebe sown; the successor shall have the tithe if the corn was not severed at the time of his coming in, otherwise if severed (1). It may be as well to insert here the general doctrine of as to profits of the common law as to the profits of lands sowed by tenants for years: land in the possession of tenants for years. Rights of lessees under incumbents. "With regard to emblements or the profits of lands sowed by tenant for years, there is this difference between him and tenant for life; that where the term of tenant for years depends upon a certainty, as if he holds from Midsummer for ten years, and in the last he sows a crop of corn, and it is not ripe and cut before Midsummer, the end of this term the landlord shall have it in the absence of any special contract or custom to the contrary, for the tenant knew the expiration of his term, and therefore it was his own folly to sow what he never could reap the profits of. But where the lease for years depends upon an uncertainty, as upon the death of the lessor, being himself only tenant for life, or being a husband seised in right of his wife, or if the term of years be determinable upon a life or lives in all these cases the estate for years, not being certainly to expire at a time foreknown, but merely by the act of God, the tenant or his executors shall have the emblements in the same manner that a tenant for life or his executors shall be entitled thereto; not so, if it determine by the act of the party himself" (m). So, in Bulwer v. Bulwer (n), it was decided that a parson who resigns his living is not entitled to emble (k) 1 Rolle's Abr. 655. (1) Gibs. 662. (m) Stephen's Comment. (cit ing Blackstone), vol. i. p. 269; p. 287, ed. 1858. (n) 2 B. & A. 470. ments. But that his lessee is entitled to them, because the tenancy is determined by the act of another (o). The incumbent of a living may maintain ejectment against parties in possession of the glebe lands, though the current year of tenancy from year to year created by his predecessor is unexpired (p). A rector succeeded to the rectory upon the death of a former incumbent in April, 1816. A. and B. were then in possession of the glebe lands, having been tenants of the former incumbent, and they continued in possession until after December, 1816, when the rector conveyed the lands to trustees for securing an annuity; it was holden, that the latter could not maintain an ejectment against A. and B. without giving them notice to quit (7). In Hatton v. Cove, the defendant being an incumbent of a living with cure of souls valued at less than 81. a year in the king's books, accepted another benefice without having a dispensation to hold both, whereby the presentation became void de jure, but he continued in possession. The bishop presented another clerk, and afterwards brought quare impedit and recovered against the defendant, and afterwards the new presentee was instituted and inducted. In an action by the latter against the defendant founded on the above-mentioned statute 28 Hen. 8, c. 11, s. 1, it was holden that the plaintiff could not recover the profits either from the time of his being presented or from the suing out of the quare impedit, the vacation contemplated by the statute being a vacation de facto (r). By the Tithe Commutation Act, 6 & 7 Will. 4, c. 71, s. 86, and various other acts, tithe commutation rentcharges are apportionable between the old and new incumbent (s). 1 & 2 Vict. son may con The 36th section of 1 & 2 Vict. c. 106 is as follows:"From and after the decease of any spiritual person holding any benefice to which a house of residence is annexed, and in which he shall have been residing at the time of his decease, it shall be lawful for the widow of tinue in the such spiritual person to occupy such house for any period house of resinot exceeding two calendar months after the decease of months, &c. such spiritual person, holding and enjoying therewith the curtilage and garden belonging to such house." (0) 2 B. & A. 470. (p) Doe d. Kirby v. Carter, R. & M. 237, Littledale. (4) Doe d. Coates v. Somerville, 6 B. & C. 126; 9 D. & R. 100. dence for two 1 & 2 Vict. c. 106. Exchange. This act also contains provisions for proportioning, in cases of death or avoidance, the annual payment of sums raised under its authority for building houses of residence, between the successor and the incumbent avoiding by death or otherwise the benefice so charged; see sect. 68 (t). It should be observed, that a mandamus lies to compel the delivery of the keys of the church to the new incumbent (u). Exchange is, where two persons, having procured licence from the ordinary to treat of an exchange (of which sort there are many to be found in the ecclesiastical records), do, by one instrument in writing, agree to exchange their benefices, being both spiritual (for a lay preferment, as an hospital, cannot be exchanged or go for a prebend or other spiritual benefice), and, in order thereunto, do resign them into the hands of the ordinary; such exchange being executed, the resignations are good (r). But though the one is instituted and inducted into the other's benefice, yet if the exchange be not executed on both parts, the clerk on whose part the exchange was not executed may have his benefice again; for in this case of exchanging, the law annexes this condition to a resignation, viz., if it be fully executed (y). Thus where one is both instituted and inducted, and the other is only instituted, and dies or refuses to finish; in this case, though they have proceeded so far, yet the resignation and all that followed upon it shall be void, and both (if both are living) may return to their former benefices upon the foot of former possession; or if one dies before he is inducted, and, after the induction of the other, this induction and all that went before shall be void, because the exchange was not fully executed during the lives of the parties (z). And this is agreeable to the reason of the common law; for at the common law, if a man exchange lands, and the lands he receives in exchange be evicted, he may repair to his own lands, and re-enter upon them (a). By 31 Eliz. c. 6, s. 7, If any incumbent of any benefice, with cure of souls, shall corruptly resign or exchange the same; or corruptly take for or in respect of the resigning or exchanging the same, directly or indirectly, any pension, sum of money, or other benefit whatsoever as (t) Post. (u) Anon., 2 Chitty, 255. (a) Wats. c. 4; Gibs. 821. As to questions of dilapidations arising on exchanges, see Downes v. Craig, 9 Mee. & Wels. 166; and post. (y) Wats. c. 4. (a) Deg. p. 1, c. 14. well the giver, as the taker, of any such pension, sum of money or other benefit corruptly, shall lose double the value of the sum so given, taken, or had; half to the queen and half to him that shall sue for the same in any of her Majesty's courts of record. There are many provisions in late statutes enabling in- Exchange of cumbents, with the consent of the bishop and patron, to glebe. exchange portions of their glebe, &c., which will be mentioned hereafter. The exchange of charity estates is especially provided for by 1 & 2 Geo. 4, c. 92, passed in 1821. Commendam is a benefice or ecclesiastical living, which Commendam, being void, to prevent its becoming void, commendatur, what. is committed to the charge and care of some sufficient clerk, to be supplied until it may be conveniently provided of a pastor. Thus, when a parson of a parish is made the bishop of a diocese, there is a cession of his benefice by the promotion; but if the king gives him power to retain his benefice, he shall continue parson thereof, and shall be said to hold it in commendam (c). The words "to prevent its becoming void," are not in Godolphin, and seem to have been added to the definition to make it extend to commendams retinere, which Lord Hobart says are not properly commendams, though usually called so, but merely faculties to retain, for according to him there is no difference between a commendam and a presentment, but that the one presents the parson to the church, the other commits the church to the parson (d). According to the same authority, commendams are of three degrees: one, semestris, that the church may not be without a parson during the patron's respite of six months; another perpetua, or for life; the third limitata, or temporary, which limitation however is not allowed in commendams capere (e). great dam. By a constitution of Othobon, "Whereas divers per- Old restraints sons, to avoid the laws against pluralities, do procure of commenvacant benefices to be commended to them, to the decay of piety and hospitality, and to the sin of those who grant such commendams; we do decree, that no church shall be granted in commendam, but for just and lawful cause; and in such case, that no church shall be commended to any person who has more than one benefice (c) God. 230. (d) Hob. 150. Hob. 144, 153, Colt and Glover v. Bishop of Coventry and Lichfield, where much learning on this subject is to be found; |