Abridgment of Ecclesiastical Laws, Treatise · Chapter 24

Abridgment of Ecclesiastical Laws · Treatise · Chapter 24

p. 269CHAP. XXIV.

Of Examination, Admiſſion, Inſtitution, and Induction.

1. What is here meant by Examination, where enjoyned, how, and by whom, and at what times to be performed.

2. In what caſe the Biſhop is held at Common Law a Diſturber, in refuſing one Clerk and Admitting another.

3. The Ordinary, as he is not obliged to Examine the Clerk at ſome certain times; ſo he may not refuſe to examine him during all the Six months.

4. Although the Six months be Elaps'd, yet if the Patron Preſent, the Church not being Full, the Biſhop ought to Admit his Clerk.

5. How an Ʋſurpation upon a Leaſe for years puts the very Patron out of poſſeſſion.

6. Admiſſion what; and under what qualifications it ought to be.

7. What the Remedy, where the Ordinary doth refuſe to Admit the Clerk; the Form of ſuch Admiſſion.

8. What Inſtitution is, and the Form thereof according to the Canon Law; what required of the Clerk in order thereto, and his Remedy in caſe the Ordinary denies him ſuch Inſtitution as he may claim by Law.

9. Matters of Inſtitution properly cognizable in the Eccleſiaſtical Courts, yet in certain Caſes not excluſively to the Common Law or Temporal Juriſdiction.

10. Inſtitution gives the Parſon jus ad rem, not jus in re.

11. Whether Inſtitution without Induction works a Plena…ty? alſo whether it be good, being Sealed with another Seal, and done out of the proper Dioceſs? The difference between the Common Law and the Canon Law as to a Coveat entered before Inſtitution.

p. 27012. Whether Suit may be in the Eccleſiaſtical Court to remove an Incumbent after Induction?

13. Whether the Firſt-Fruits be due upon the Inſtitution before Induction?

14. A Caſe at Common Law touching Reſignation; and whether it may be made Conditionally?

15. A Caſe touching the Rightful Patron's Preſentation, after the Induction of another by Ʋſurpation.

16. What Induction is, and the Biſhop's Order therein.

17. Induction is a Temporal, not Spiritual Act: In what manner it is to be executed.

18. A Caveat entered in the Life-time of an Incumbent is void.

19. In what Caſe an Induction made by a Miniſter not reſident within the Archdeaconry, may be good.

20. Inſtitution to a Minor and VnderUnder-age is meerly void.

21. Whether after Induction, the Inſtitution may be queſtioned in the Eccleſiaſtical Court.

22. Whether Incumbency be triable only at Common Law.

23. In what Court the validity of Induction is determinable.

(1.) EXamination is that Trial or Probation, which the Biſhop or Ordinary makes before his Admiſſion of any perſon to holy Order or to a Benefice, touching the qualification of ſuch perſons for the ſame reſpectively. So that there are Two certain times or ſeaſons eſpecially, wherein this Examination is required; the one before an Admiſſion to Holy Orders, the other before an Admiſſion to a Benefice. The former of theſe is expreſly enjoyned by the 35th Canon Eccleſiaſtical, whereby it is required, That the Biſhop, before he Admit any perſon to Holy Orders, ſhall diligently Examine him in the preſence of thoſe Miniſters that ſhall aſſiſt him at the Impoſition of hands, or in caſe of any lawful Impediment of the Biſhop, then the ſaid Examination ſhall be carefully performed by the ſaid Miniſters, provided they be of the Biſhops Cathedral Church, if conveniently it may, otherwiſe by at leaſt Three ſufficient Preachers of the ſame Dioceſs. And in caſe any Biſhop or Suffragan ſhall Admit any to Sacred Orders, who is not Examined as is before ordained, then ſhall the Archbiſhop of the Province, having notice thereof, and being aſſiſted with one Biſhop, ſuſpend the ſaid Biſhop or Suffragan from making either Deacons or Prieſts for the ſpace of Two yearsaaCanon 35. Eccleſiaſtical.. So alſo when the Clerk is Preſented by the Patron of the Advowſon, before he be Admitted as Clerk to ſerve the Cure, the Ordinary is to Examine him of his Ability: For if upon his Examination he be found unable to p. 271ſerve the ſame, or be Criminous, the Ordinary may refuſe to Admit and Inſtitute him into the BeneficebbCo. 5. par. Specot's Caſe.. By the Ancient Cannons the Biſhop hath Two months time to enquire and inform himſelf of the ſufficiency and quality of every Clerk Preſented to him, as appears by the Canon in 1 Jac. cap. 95. But by the ſaid Canon it is Ordained, That the ſaid Two months ſhall be abridged to 28 days onlyccRol. Abr. ver. Preſe…tm. lit. X.. Upon ſufficient enquiry and Examination the Ordinary may accept or refuſe the Clerk Preſented, and regularly all ſuch matters as are cauſes of Deprivation, are alſo cauſes of Refuſal ddCo. 2. Specot. 58.; but for a Preſentce to have another Benefice, is no cauſe of Refuſal, for that is at his own peril; and poſſibly the Second Benefice is more worth than the former, which only is void in ſuch caſeee14 H 7. 28. b. Cariae..

(2.) If the Biſhop doth demand of the Clerk his Letters of Orders, and Letters Teſtimonial of his good behaviour, and the Clerk requires time to ſhew them, as the ſpace of a week or the like, becauſe he hath them not there with him; and the Biſhop doth thereupon Refuſe him to the Church, and Preſents another: the Biſhop in ſuch caſe hath been adjudged to be a Diſturber; for the Statute of 13 Eliz. doth not compel the Clerk to ſhew his Orders, nor Letters Teſtimonial of his good Behaviour: And ſo it was Adjudged ffPaſch. 33 Eliz. C. B. … and the Biſhop of Peterborough's Caſe. Leon. 230.. Yet by the 39th Canon it is by way of Caution expreſly Ordained, That no Biſhop ſhall Inſtitute any of a Benefice, who hath been Ordained by any other Biſhop, except he firſt ſhew unto him his Letters of Orders, and bring him a ſufficient Teſtimony of his former good life and behaviour, if the Biſhop ſhall require it.

(3.) Examination of the Clerk is to be done at a convenient time within the Six months; for the Ordinary cannot refuſe to Examine the Clerk during all the Six months, and ſo ſuffer a Lapſe to incurr to himſelf; for by ſo doing the Patron ſhould loſe his Preſentation, and the Ordinary take advantage of his own wrong. But if the Ordinary, when the Clerk comes to be examined, Sedet circa curam Paſtoralem, he is not then obliged to leave the buſineſs in hand, and preſently Examine the Clerk; but he may appoint a convenient time and place for the Examining of himggMich. 15▪ Jac. C. B. Adjudg'd. vid. acc. 5 H. 7. 7. C…. 5. par. Spec…t's Caſe.. This Examination by the Dioceſan, touching the Converſation and Ability of ſuch as were ordained to Peach the Word of God, or Preſented to a Benefice, is enjoyned by the Provincial Conſtitutions. Lindw. de Haereticis, cap. 1.

(4.) A Quare Impedit was brought by B. againſt the Biſhop of Rocheſter, who pleads, that he claims nothing but as Ordinary; and yet pleads further, That the Clerk which the Plaintiff Preſented, had before contracted with the Plaintiff Simmiacally, and therefore becauſe he was Simoniacus he refuſed, and that the Church was then void, and ſo remained void; whereupon the Plaintiff had p. 272a Writ to the Archbiſhop of Canterbury, who returned that before the coming of this Writ, viz. 4. July the Church was Full of one Dr. Grant, ex Collatione of the ſaid Biſhop of Rocheſter, who had Collated by Lapſe, and this Return was adjudged Inſufficient: Firſt, it is clear, That though the Six months paſs, yet if the Patron Preſent, the Biſhop ought to Admit, although it be after the Title devolved unto the Metropolitan: And it ſeems alſo Reaſon, that he ought to Admit, though that the Title by Lapſe be accrued to the King, for he claims it as Supream Ordinary. Vid. Dyer 277. quaere. But in this Caſe the Biſhop who is the Defendant is bound by the Judgment, and the Writ is, notwithſtanding the claim of the Biſhop, that he Admit the Clerk; for the Biſhop ought to execute the Proceſs of the Court. It was urged by Serjeant Henden, that there is a Canon in Lindwood, That if the Church be vacant when the Writ comes to the Biſhop, that he is bound to execute the Writ; but if it be Full, then he certifies the Juſtices: And the Archbiſhop is Sworn to the Canons, and he vouched 22 H. 6. 45. Coke, lib. 6. 49, and 52. Dyer 260. F. N. B. 47. Dyer 364. 14 H. 7. 22. 34 H. 6. 41. 9 E. 3. Quare non admiſit. 18. E. 4. 7.hh…oton againſt the Biſhop of Rocheſter. Hutt. Rep..

(5.) In Rud's Caſe againſt the Biſhop of Lincoln, it was among other things Reſolved by the Court, in a Quare Impedit, That when one uſurps upon a Leaſe for years, that this Uſurpation gains the Fee, and puts the very Patron out of poſſeſſion; and though by the Statute of Weſtm. 2. cap. 5. he in reverſion after the Leaſe may have a Quare Impedit when the Church is void, or may Preſent and if he Preſent, and his Clerk be Admitted and Inducted, that then he is Remitted; yet until it be recovered, or his Clerk be in, the Uſurper hath the Fee, and againſt him lies the Writ of Right, &c. Alſo that the Patron, which hath recovered in a Quare Impedit, may Preſent, and that being accepted, and Inſtitution and Induction enſuing thereupon, it is goodiiRud. verſ. the Biſhop of Lincoln. Hutt. Rep..

(6.) Admiſſion is when the Biſhop upon Examination of the Clerk Admits him to be able and ſufficient, ſaying, Admitto te habilem kkCo. on Lit. fo. 334. a.The Lord Coke in the Fourth Part of his Inſtitutes ſays, That upon conſideration had of the ſeveral Statutesll3 R. 2. 7 H. 4. 1 H. 5. & Rot. Bar. 6 H. 4. nu. 48. & 4 H. 6. nu. 29.Bar 6 (whereof mention is there made,) If an Alien or Stranger born be Preſented to a Benefice, the Biſhop ought not to Admit him, but may lawfully refuſe himmmCo 4. par. Inſtit. cap. 74. §. Conſiſtory Courts.. There are ſeveral things which the Statute-Law of this Realm doth require in him, which ſhall be Admitted to a Benefice; for no perſon may be Admitted to any Benefice with Cure, except he then be of the Age of 23 years at leaſt, and a Deacon, and ſhall firſt have ſubſcribed the 39 Articles in the preſence of the Ordinary, and publickly read the ſame in the Pariſh-Church of that Benefice, with Declaration of his unfeigned Aſſent p. 273thereunto; and except he be Admitted to Miniſter the Sacraments within one year next after his Induction (if he were not ſo Admitted before) he ſhall upon every ſuch default be ipſo facto deprived. And none ſhall be made a Miniſter, or Admitted to Preach or Adminiſter the Sacraments under the Age of 24 years, and unleſs he bring with him to the Biſhop a ſufficient Teſtimonial, and be able to render an Account of his Faith in Latin. All which appears by the Statute of the 13th of Eliz. whereby it is likewiſe Provided, That none ſhall be Admitted to any Benefice with Cure, of or above the yearly value of Thirty pounds in the King's Books, unleſs he ſhall then be a Batchelor of Divinity, or a Preacher lawfully allowed by ſome Biſhop within this Realm, or by one of the Univerſities of Oxford or Cambridge; and that all Admiſſions to Benefices, Inſtitutions, Inductions, Tolerations, Diſpenſations, Qualifications, and Licenſes whatſoever, made contrary to the Premiſſes, ſhall be utterly void in LawmmSt. 13 El. cap. 12.. And by the Three and thirtieth Canon of the Eccleſiaſtical Conſtitutions, Ratified and Confirmed by King James under his Letters Patents, An. 1603. it is in Conformity to many Decrees of the Ancient Fathers, further Ordained, That no perſon ſhall be Admitted into Sacred Orders, except he ſhall at the ſame time Exhibit to the Biſhop a Preſentation of himſelf to ſome Eccleſiaſtical Preferment then void in that Dioceſs; or bring to the ſaid Biſhop a True and undoubted Certificate, that either he is provided with ſome Church within the Dioceſs, where he may attend the Cure of Souls, or of ſome Miniſters place vacant, either in the Cathedral of that Dioceſs, or in ſome other Collegiate Church therein alſo ſcituate, where he may exerciſe his Miniſtry: Or that he is a Fellow, or in right as a Fellow, or to be a Chaplain in ſome Colledge in Oxford or Cambridge: except he be a Maſter of Arts of Five years ſtanding, that liveth of his own charge in either of the Univerſities: or except by the Biſhop himſelf that doth Ordain him Miniſter, to be ſhortly after to be Admitted either to ſome Benefice or Curateſhip then void. And in caſe any Biſhop ſhall Admit any perſon into the Miniſtry, not qualified as aforeſaid, he is to keep and maintain him, till he prefers him to ſome Eccleſiaſtical Living, on pain of Suſpenſion for one year from giving or Orders, by the Archbiſhop aſſiſted with another BiſhopnnCanon Eccleſiaſtical 33..

(7.) If a Biſhop ſhall refuſe to Admit the Clerk, the Writ of Quare non Admiſit may lie in the CaſeooHill. 8 Car▪ B. R. rot. 454. Cort verſ. Epiſc. St. Dav. Croke.; yet the Ordinary, before he Admits the Clerk Preſented, may take a reaſonable time to examine him; and if upon Examination there be juſt cauſe of Exception in reſpect of the Clerk Preſented, or otherwiſe in reſpect of the Patron Preſenting, he may juſtifie the non-Admiſſion of him, for this Admiſſion is no other than the Ordinary's Allowance p. 274of a Clerk Preſented to a Church that is void. But if the Biſhop refuſe to Admit the Clerk Preſented to him by the Patron, as ſcrupling the ſaid Patron's Right of Preſentation, and the ſaid Patron after recover his Right of Preſentation againſt the Biſhop in the Common Bench, he ſhall then have the Writ of Admittendo Clerico ppF. N. B. fo. 38 and Regiſt. of Writs, fo. 33. a.. Hobart Chief Juſtice, in the caſe of Colt and Glover againſt the Biſhop of Coventry and Lichfield, compares this Admiſſion and ſuch Acts of the Ordinary to the Admittance of a Copyholder upon Surrender, ſpecially where the Admiſſion of one be upon the Reſignation of another Incumbent: And he is there of opinion, That if a Parſon Appropriate (which is Patron) Preſent, and his Clerk be not Admitted, but refuſed for juſt cauſe and Notice given, the Lapſe ſhall incurrqqMich. 10 Jac. rot. 2642. Colt & Glover verſ. Biſh. of Cov. & Lichf. Hob. Rep.. The uſual Form or Tenor of an Admiſſion into a Rectory or Parſonage runs in this manner, viz. … A. B. by virtue of this Inſtrument from John Lord Biſhop of L. in his Triennial Viſitation, To all Clerks, Rectors, Vicars, Miniſters, Chaplains, and Curates whatſoever within this Dioceſs directed, do Admit F. G. into real, actual, and corporal poſſeſſion of this Church of R. together with all the profits, dues, members and appurtenances whatſoever thereunto belonging, In the preſence of thoſe whoſe Names are under-written.

(8.) Inſtitution according to the Canon Law, is no other than a Verbal Collation to a Benefice or ſome other Eccleſiaſtical Living, De Inſtit. lib. 4. Decretal, & Sexti. and is by that Law taken for an Inveſture, c. ad haec, de Offic. Archid. c. cum veniſſet. dic. tit. de Inſt. For when among the Romans a Clerk was Inſtituted, the Cuſtome was, that by a Verbal Collation the Clerk was inveſted in the Benefice by the delivery to him of a Ring, Staff, Cap, Pen, or the like, in the nature of Livery and Seiſin, in token of his poſſeſſion of the thing to which he was ſo Inſtituted: c. cum olim, de re Judic. cap. ex ore, de iis quae ſi à Praelat. & cap. ut noſtrum, de Office. Archidiac. Somewhat in reſemblance to our Tenents by the Verge, or ſuch as are Admitted by the Rod in a Court of ancient Demeſn. But this Inſtitution, as practicable with us, conſiſts in the Letters of Inſtitution directed from the Biſhop or Ordinary, in whoſe Dioceſs the Church is, to the Clerk the Preſentee, by which he Admits him as lawful Incumbent to that vacant Church whereto he is Preſented by the Patron thereof; the ſaid Clerk having not only firſt taken the Oaths of Allegeance and Supremacy, with Renunciation of all Foreign Powers and Juriſdictions, according to the Laws and Statutes in that behalf provided, but alſo of Canonical Obedience to the Biſhop of that Dioceſs and his Succeſſors, and that he hath made no Simoniacal Contract, for or concerning the ſaid Preſentation; whereupon the ſaid Biſhop or Ordinary doth by his ſaid Letters p. 275of Inſtitution conſtitute and inveſt the ſaid Clerk Rector of the Rectory of the ſaid Parochial Church, cum cura animarum Parochianorum, together with all Rights, Priviledges, and Emoluments belonging to the ſame, Juribus & Conſuetudinib…s Noſtris Eſtiſcopalibus, & Eccleſiae noſtrae Cath, &c. Dignitate & honore in omnibus ſemper ſalvis. Dioeceſis idem ſignificat in effectu quoad Juriſdictionem Eccleſiaſticam, quod Territorium quoad Juriſdictionem Temporalem. Ita Andrae, & DD. in c. cum Epiſcopus, de Offic. Ord. lib. 6. Dioeceſis ſignificat locum Spiritualem, ſicuti Territorium locum Temporalem. Alberic. in ſuo Dict. ver. Dioeceſis. This Inſtitution to a Benefice may not, by the 39th Article of the Canons, be to any perſon preordained, except he firſt ſhew the Biſhop his Letters of Orders, as alſo (if he require it) a Teſtimonial of his former good life and behaviour. Moreover, by the Law he is obliged to ſubſcribe the Articles of Religion, to Swear Canonical Obedience to the Archbiſhop of Canterbury and his Succeſſors, and to his Dioceſan; and for his Perſonal Reſidence, if it be a Vicarage. Juram entum de Canonica Obedientia, viz. Ego A. B. juro, quod praeſtabo veram & Canonicam Obedientiam Epiſcopo Londinenſi ejuſque Succeſsoribus, in omnibus licitis & honeſtis. Sic me Deus adjuvet. If a Clerk ſhould kill his Prelate, to whom he hath Sworn Canonical Obedience, it is Pety Treaſon. Vid. 19 H. 6. 47. b. vid. Stat. 25 E. 3. De Prodic. cap. 2. But if the Dioceſan, notwithſtanding the exhibiting the Preſentation before him, or his Vicar General, having power to Inſtitute, and notwithſtanding Requiſition made him by the Clerk Preſented in order to Inſtitution, ſhall refuſe to Inſtitute and Admit him, he may thereof enter his Complaint before the Dean of the Arches, who thereupon ſends his Letters to the ſaid Biſhops, which Letters or Reſcript is termed Duplex Querela: So that as to the ſubſtance of the Premiſſes touching this Subject, the practice with us at this day doth well nigh correſpond with the Ancient Canon Law, whereby it is expreſly Ordained, lib. 3. Decretal. That all Eccleſiaſtical Livings and Benefices ſhall be had by Inſtitution, to be by the Biſhop or his Chancellor, or ſuch other as hath Epiſcopal Juriſdiction, poſitively declaring, That without ſuch Inſtitution neither any Benefice is lawfully obtained, nor can be lawfully retained: Adding withal, That Benefices void ought to be granted within Six months after knowledge of the Voidance thereof, otherwiſe the Grant thereof devolves and comes to the Superiour; and that he who doth cauſe or procure himſelf to be Inſtituted into a Benefice, the Incumbent thereof being alive, ſhall be depoſed from his Orders. Decretal. ibid.

p. 276(9.) Albeit the Cogniſance of this matter of Inſtitutions is ſo properly and connaturally inherent in the Eccleſiaſtical Juriſdiction, yet the Temporal and Common Law it ſeems hath in ſome caſes took notice thereof▪ for it is there Reported, That every Rectory doth conſiſt upon Spiritualty and Temporalty: As to the Spiritualty, viz. Cura animarum, the Preſentee is compleat Parſon by Inſtitution; for when the Biſhop upon Examination finds him able, then he doth Inſtitute him in theſe words, viz. Inſtituo te ad tale Beneficium & habere Curam animarum, of ſuch a Pariſh, Accipe Curam tuam & meam rr4… El. B. R. Co. 4. par. 79. … Caſe.. And the very Inſtitution to a Benefice the Law underſtands as an Acceptance and the having of a Benefice; as in that Caſe of Digby; where it is held, That if a Clerk be Preſented, Admitted, and Inſtituted to a Benefice with Cure, to the value of 8 l. and afterwards and before Induction he accepts of another Benefice with Cure, and is Inducted in the ſame; the Firſt Benefice is void by the Statute of 21 H. 8. For the words of the Statute are, A Parſon, having one Benefice with Cure, &c. Accept and take another, &c. And he who is Inſtituted to a Benefice, is ſaid to have Accepted a Benefice, and to have a BeneficessCo. ibid. Digh. Caſe.. And he that is Inſtituted, may enter into the Glebe-Lands before his Induction, and hath Right to have it againſt any Stranger whateverttPaſch. 13 Jac. B. R. per. Co. Rol. Rep.. And albeit by the Civil and Canon Law an Inſtitution granted after a Caveat Entered is void, yet by the Common Law it is otherwiſe uuP. 13 Jac. B. R. Caſe Hitchin and Glover. Rol. Rep.,

(10.) By the Inſtitution the Parſon hath only Jus ad rem, he hath not Jus in re until he hath Induction; and therefore if a Prebendary, Parſon, or Vicar, after he is Admitted and Inſtituted, and before he be Inducted, grant an Annuity out of his Prebend, Parſonage, or Vicarage, and the ſame be Confirmed by the Patron and Ordinary, or by the Dean and Chapter, yet this ſhall not charge the Glebe, or the Succeſſor of the Prebendary, Parſon or Vicar; for although by his Inſtitution he hath (as aforeſaid) Jus ad rem, yet he hath not Jus in re, but the charge in ſuch caſe ſhall lie upon the perſon of the Prebendary, Parſon, or Vicar, and not upon the Landsxx5 Eliz. Dyer 221. vid. Hare and Birkley's C. Plow. Com. 528. acc..

(11.) The Church at this day, ſince the Statute of Weſtm. 2. is not Full by Inſtitution of the King; and therefore if the King hath a Title by Lapſe to Preſent pro hac vice, and he Preſents, and his Clerk be Inſtituted, but dies before Induction, the King in that caſe may Preſent again; and ſo it hath been Adjudgedyy18 Eliz in Giles Caſe. vid. Co. 10. par. 132. in Holts Caſe. vid. 18 Eliz.. Which plainly ſhews, that Inſtitution without Induction doth not work a Plenarty. It hath alſo been held, That the Letters of Inſtitution Sealed with another Seal, and made out of the Dioceſs, is good Dyer, 348. Weſton's Caſe. acc. p. 277enoughzzHill. 8 Cha. rot. 454. B. R. Cort verſ. Biſhop of St. Davids. Cro. Rep.. Of if a Caveat be Entered with a Biſhop, and he after grant Inſtitution, yet the Inſtitution is not void by the Common Law; otherwiſe by the Spiritual LawaaPaſch. 13 Jac. B. R. Hitchings verſ. Glover. Rol. Rep.. Notwithſtanding what was juſt now ſaid, it is Adjudged in Digbie's Caſe, That a Benefice is taken, received, and had by Inſtitution only; and therefore a Qualification or Diſpenſation following comes too latebbCo. lib. 4 7 9.. So that if a man having one Benefice with Cure by Inſtitution only, accept another by Inſtitution only, without Diſpenſation, the Common Law makes Avoidance Actual, if the Patron willccMich. 10 Jac. rot. 2642. Colt & Glover verſ. B. of Cov. and Lichf. Hob. R..

(12.) Proceedings being in the Eccleſiaſtical Court to remove an Incumbent after Induction, a Prohibition was granted to ſtay the ſame: One Oliver ſued a Quare Impedit againſt Huſſey, and while that depended, Huſſey was Inſtituted and Inducted, and Oliver ſued Huſſey in the Spiritual Court to remove him. Noy pray'd a Prohibition, Firſt becauſe he may not ſue in Two Courts for the ſame cauſe: Secondly, becauſe it is a Suit after Induction; and upon that laſt point the Court granted a ProhibitionddOliver verſ. Huſſey. Latch. Rep..

(13.) In the Caſe of Dennys againſt Drake it was ſaid, That if a man be Inſtituted to a Benefice, he ought to pay the Firſt-Fruits before Induction by the Statute: But by the Common Law it was otherwiſe; for he is not to have the Temporalties until Induction, and therefore he could not pay the Firſt-Fruits; but another perſon cannot be Preſented to his Benefice during the continuance of the Firſt Inſtitution. And an Inſtitution to a Second Benefice is a preſent Avoidance of the FirſteeCaſe Dennys verſ. Drake. Lane's Rep. Vid. Co. lib. 4. Digbie's Caſe fo. 79.

(14.) G. Parſon of the Church of E. did by Inſtrument in Writing Reſign his Benefice before a Notary Publick, and others, into the hands of the Biſhop; and the Reſignation was abſolute and voluntary, and to the uſe of M. and B. or either of them. And it was further in…erted in the ſaid Inſtrument of Reſignation,Reſignation of a Benefice. Proteſtatione & ſub Conditione, quod ſi aliqui eorum non Admiſſi fuerant per aſſentum Epiſcop. infra Sex menſes, quod tunc haec praeſens Reſignatio mea vacua & pro nulla habeatur, & nunc prout tunc, & tunc prout nunc; and Ceſtuy que uſe came within the time limited to the Biſhop, and did offer to Reſign to him, which the Biſhop refuſed to accept, &c. Crooke for the Plaintiff: Foraſmuch as the Plaintiff may Reſign on Condition as well, as a particular Tenant may Surrender upon Condition: And Two Parſons may Exchange, and if the Eſtate be Executed on the one part, and not on the other, that Parſon whoſe part was not Executed, may have his Benefice again, as it is Adjudged in the 46 E. 3. But Coke Sollic. and Godfrey were on the contrary Opinion: For that the Incumbent may not Transfer p. 278his Benefice to another without Preſentation, as appears in the recited Caſe of 46 E. 3. Alſo the Reſignation is not good, and the Condition void, becauſe it is againſt the nature of a Reſignation, which muſt be Abſolute, Sponte, pure, & Simpliciter, and is not like to a Condition in Law, as in the ſaid Caſe of Exchange of 46 E. 3. for the Law doth annex a Condition to it, but a collateral Condition cannot be annext by the parties themſelves: Alſo this is an act Judicial, to which a Condition cannot be annex'd, no more than an Ordinary may Admit upon Condition, or a Judgment be confeſſed on Condition, which are Judicial Acts. But admitting the Condition to be good, yet a new Induction ought to be made by the Ordinary, for the Church became one time void, and is not like to the Caſe in 2 R. 2. Quare Impedit, 143. Where Sentence of Deprivation was given, and the Sentence preſently reverſed by Appeal, there needs no new Inſtitution, for that the Church was never void. And upon Arguments given in Writing by the Civilians to the Judges, the Judgment was entered, Quod querens nihil capiat per Billam ee34 Eliz. C. B. Gayton's Caſe. Owens Rep..

(15.) In Rud's Caſe againſt the Biſhop of Lincoln, it was (inter alia) Reſolved by the Court, That when one having a good Title to Preſent, and an Incumbent by Uſurpation is Admitted, Inſtituted, and Inducted, and after that the Patron Preſents, and the Biſhop refuſe, and after the Patron recover, and then he which had this Preſentation, exhibits it to the Biſhop; this is now a good Preſentation; and the Patron cannot revoke or give him a new Preſentation: But if the Patron before the death of the Incumbent make Letters of Preſentation, that is void, becauſe he had no Title to PreſentffThe aforeſaid Caſe of Rud verſ. the Biſhop of Lincoln. Hutt. Rep..

(16.) Induction is nothing elſe but the putting of the Parſon into Actual poſſeſſion of the Church and Glebe, which are the Temporalties of the Church; or the making of a Clerk compleat Incumbent of a Church: This is Induction gg15 H. 4. 76. b. 14 H. 6. Qua. Imp. 162. 38 H. 6. 15., and it is by Letters from the Biſhop of the Dioceſs directed to all and ſingular the Clerks, Rectors, Vicars, &c. within the ſaid Dioceſs, to put the Clerk or his lawful Attorney for him, and in his name into the Actual poſſeſſion of the Church to which he had been Preſented and Inſtituted, together with all the profits, dues, members, and appurtenances whatſoever thereunto belongings or appertaining; of the due execution whereof a Certificate endorſed on the Inſtrument of Induction, and Subſcrib'd by a competent number of Witneſſes ought to be returned to the ſaid Biſhop or Ordinary; who may appoint the Archdeacon to give Induction hh…8 E. 3, 3. b., yet by Preſcription it ſeems the Dean and Chapter of Pauls, as alſo the Dean and Chapter of Lichfield may give Induction ii1… H. 4. 9.. It is alſo ſaid, That an Induction made by a Biſhop is void, where it belongs to a Dean and Chapter by PreſcriptionkkIb. Contr. 14 H. 6. Qua. Imp. 162. adjudg'd of a Prebend.: But an Induction by the Patron p. 279is voidll11 H. 4. 10.; yet the King's Grantee of a Free-Chappel ſhall be put into poſſeſſion by the Sheriff of the County, and not by the Ordinary of the placemm14 H. 4. 11. b. & Rol. Abr. ver. Preſentem. lit. C..

(17.) This Induction is not a Spiritual, but a Temporal Act; and therefore if after the Clerk hath been Preſented by the Patron, and Admitted and Inſtituted by the Biſhop, the Archdeacon ſhall refuſe to Induct him into the Benefice, an Action upon the Caſe lieth for the Clerk againſt the ArchdeaconnnPaſch. 23. Eliz. C. B. ad▪ judg. Godb. 23. vid. Fitz. N. B. 47. 26 H. 8. 3. by Knigh…ly.. And after the Incumbent is thus Inducted, he may then plead any Plea in Bar of a Quare Impedit brought againſt him which concerneth his Poſſeſſion; and ſo may plead a Releaſe in Bar, becauſe he hath the Freehold in him, which ſhall not be loſt without his Anſweroo4 H. 8. Dyer 1.: For by this Induction or being led into the Church he hath, as it were, Livery and Seiſin thereof given him as the lawful Incumbent by delivery of the Keys of the Church to him, and that by order of the Biſhop; whereof Publication is then made to the Pariſhioners by ringing one or more the BellsppVid. Cro. Rep par. 3. fo. 258.: And albeit a Parſon hath his Preſentation, Admiſſion, and Inſtitution, and that upon a lawful Title, yet he is not a poſſeſſor of the Parſonage according to the Letter of the Law till his Induction qqPaſch. 17 Jac. C. B. Sir W. Elvis verſ. Archbiſhop of York, and others. Hob. Rep.. Which Induction is (as aforeſaid) a Temporal Act, and (as the Opinion of the Court was in Hutton's Caſe) Triable by Temporal Law; and ſince by Induction the Church is Full, it is not to be avoided, but by a Suit of Quare Impedit or the like, at the Common Law, and not to be undermined by alledging Inſufficiency in the Inſtitution in the Court Eccleſiaſtical, for that may come in queſtion upon the Trial of the Induction at the Common Law, which will not be good, if the Inſtitution were not good: All which was alſo the Opinion of the Court in the Caſe aforeſaidrrSir Tim. Hutton's Caſe. C. B. Hob. Rep.; for if the Queſtion be, whether Parſon or no Parſon, which comprehends Induction, it is Triable at the Common LawssTrin. 13 Jac. B. R. Glover againſt Shedd. Rol. Rep.. And although by the Inſtitution the Church if Full againſt all perſons ſave the King, yet he is not compleat Parſon till Induction; for though he be admitted ad Officium by the Inſtitution, yet he is not entitled ad Beneficium till Induction ttPlow. 52… b..

(18.) In an Ejectione Firmae brought by the Leſſee of Rone, Incumbent of the Church of D. it was found by Special Verdict, that the King was the true Patron, and that Wingfield entered a Coveat, in vita Incumbentis, he then lying in Extremis, ſcil. Caveat Epiſcopus nè quis admittatur, &c. niſi Convocatus the ſaid Wingfield; the Incumbent dies; Naunton a Stranger Preſents one Morgan, who is Admitted and Inſtituted; afterwards the ſaid Wingfield Preſents one Glover, who is Inſtituted and Inducted, and afterwards the ſaid Rone procures a Preſentation from the King, who was Inſtituted p. 280and Inducted: And then it came in… queſtion in the Eccleſiaſtical Court, who had the beſt Right; and there Sentence was given, That the Firſt Inſtitution was Irrita, Vacua, & Inanis, by reaſon of the Caveat, and then the Church being Full of the Second Incumbent, the King was put out of poſſeſſion, and ſo his Preſentation void: But it was Adjudged and Reſolved by all the Court for Rone: For (1) it was Reſolved, That this Caveat was void, becauſe it was in the life of the Incumbent. According to the Common Law, if a Caveat be entered with the Biſhop, and he grant Inſtitution afterwards, yet it is not void: After a Caveat entered, Inſtitution is not void by the Common Law. Paſch. 13 Jac. B. R. Hitching verſ. Glover. Rol. Rep. & Cro. par. 2. (2.) The Church upon the Inſtitution of Morgan was Full againſt all but the King, and ſo Agreed many times in the Books, and then the Preſentation of Glover was void by reaſon of the Super-inſtitution, and therefore no obſtacle in the way to hinder the Preſentation of Rone, and therefore Rone had good Right: And if the Second Inſtitution be void, the Sentence cannot make it good; for the Eccleſiaſtical Court ought to take notice of the Common Law, which ſaith, That Eccleſia eſt plena & conſulta upon the Inſtitution, and the perſon hath thereby Curam animarum. And as Doderidge Juſtice ſaid, He hath by it Officium, but Beneficium comes by the Induction: And although by the Eccleſiaſtical Law the Inſtitution may be diſannull'd by Sentence, yet as Lindwood ſaith, Aliter eſt in Angl. And Doderidge put a Caſe out of Dr. & Student. lib. 2. If a man Deviſe a Sum of Money to be paid to J. S. when he comes to Full age, and he after ſue for it in the Spiritual Court, they ought to take notice of the Time of Full age, as it is uſed by the Common Law, viz. 21. and not of the time of Full age as it is in the Civil Law, viz. 25. So in this caſe; for when theſe Two Laws meet together, the Common Law ought to be preferred: And when the Parſon hath Inſtitution, the Archdeacon ought to give him Induction. Vid. Dyer 293. Bedingfield's Caſe, cited by Haughton to accord with this CaſeuuMich. 15 Jac. B. R. Rones Caſe. Poph. Rep..

(19.) By the Court, That if an Archdeacon make a general Mandate for the Induction of a Parſon, viz. Ʋniverſ. perſonis Vicariis Clericis & Literatis infra Archidiaconat. meum ubicunque Conſtitut. That if a Miniſter or a Preacher who is not reſident within the Archdeaconry, makes the Induction, yet it is good. And the Opinion of four Doctors of the Civil Law was ſhewn in the Court accordingly, upon a Special VerdictxxChr. Deans Caſe. Noy's Rep..

(21.) In the Caſe of Strange againſt Foote, the ſole Point upon the Special Verdict was, If one Prideoux being Admitted and Inſtituted to a Prebendary, with the Cure, 4 Eliz. be being but Nine years of age; notwithſtanding the Statute it is meerly void. Note 4 H. 6. 3. p. 281That if a Feme who is an Infant under 14 years hath iſſue, it is a BaſtardyyPaſc. 2 Jac. C. B. ret. 1320. Strange verſ. Foote. Noy's Rep..

(21.) It is ſaid at the Common Law, that after Induction, the Admiſſion and Inſtitution ought not to be drawn into queſtion in the Eccleſiaſtical CourtzzMich. 12 Jac. B. between Sir Tim. Hutton and the Biſh of Cheſter.; for they ſay, That after Induction the Eccleſiaſtical Law may not call into queſtion the Inſtitution: That by Inſtitution the Church is full againſt Common perſons, but not againſt the King; and that by Induction the King may be put out of poſſeſſionaaHill. 15 Jac. B. R. Hitcham and Glover's Caſe. Roll. Rep.. And in the Caſe between Rowrth and the Biſhop of Cheſter, it was Reſolved, That after an Induction, an Inſtitution is not to be examined in the Eccleſiaſtical Court, but by a Quare Impedit only: But yet the Juſtices, if they ſee cauſe, may write to the Biſhop to Certifie concerning the InſtitutionbbMore's Rep..

(22.) Two Patrons pretended Title to Preſent; the one Preſented, and the Biſhop refuſed his Clerk. He ſued in the Audience, and had an Inhibition to the Biſhop, and after he there obtained Inſtitution and Induction by the Archbiſhop: Afterwards the Inferior Biſhop, Inſtituted and Inducted the Clerk of the other; for which Proceſs iſſued out of the Audience againſt him; he upon that prayed a Prohibition, and a Prohibition was awarded as to the Incumbency, becauſe the Eccleſiaſtical Courts have not to meddle with Inſtitution and Induction (as was there ſaid) for that would determine the Incumbency, which is triable at Common LawccMiddleton and Lawte's Caſe. More's Rep..

(23.) In a Prohibition prayed to the Eccleſiaſtical Court, the Caſe appeared to be this, viz. Holt was Preſented, Inſtituted and Inducted to the Pariſh-Church of Storinton: afterwards Dr. Wickham draws him into the Eccleſiaſtical Court, queſtioning of him for ſome matters, as touching the validity of his Induction, and upon this a Prohibition was by him prayed:Trin. 9 Jac. B. R. Holt's Caſe, in Bulſtr. par. 1. Williams Juſtice, A Prohibition here in this Caſe ought to be granted, this being directly within the Statute 45 Ed. 3. cap. 3. for here the very Title of the Patronage comes in queſtion, with the determination of which they ought not to intermeddle; alſo matter of Induction, and the validity thereof is determinable at the Common Law, and not in the Eccleſiaſtical Court, and therefore a Prohibition ought to be granted, and the whole Court agreed with him herein, and therefore by the Rule of the Court a Prohibition in this Caſe was granted.