Abridgment of Ecclesiastical Laws, Treatise · Chapter 25
CHAP. XXV.
Of Avoidance and Next Avoidance; as alſo of Ceſſion.
1. What Avoidance is; how Twofold.
2. The difference in Law between Avoidance and next Avoidance.
3. How many waies Avoidanee may happen; what Next Avoidance is: The word Avoidance falls under a double Acceptation in Law.
4. The Next Avoidance may not be granted by a Letter, it cannot be granted but by Deed.
5. Grant of a Next Avoidance by the Son, Living the Father Tenant in Tail, is void.
6. How Avoidance may be according to the Canon Law, which yet is otherwiſe by Statute Law.
7. The Releaſe of the Next Avoidance, made after the Church becomes void, is void.
8. A wide difference between the Common Law and the Canon, in reſpect of Plenarty and Voidance.
9. What Ceſſion is; and who ſhall Preſent in that caſe.
10. A Parſon Beneficed accepting an Archdeaconry, falls not under this Ceſſion.
11. In caſe of Ceſſion the Ordinary is to give Notice to the Patron, otherwiſe the Lapſe doth not incurr againſt him.
12. In what caſe the former Benefice is not void by Ceſſion, notwithſtanding the taking of another Incompatible, and without Diſpenſation; And in what caſe a Church void is held Void as to all perſons, except an Ʋſurper.
13. In caſe of Three Grantees of the Next Avoidance, whether Two of them may Preſent the Third, being a Clerk.
14. What difference between an Avoidance by Parliament, and an Avoidance at the Eccleſiaſtical Law.
15. In what caſe an Advowſon granted to a man, ſhall enure to him only for his life, and not go to his Executors.
16. A man having an Advowſon in Fee of the Church, whereof himſelf is Incumbent, Deviſeth that his Executors ſhould next Preſent; Whether ſuch Deviſe of the Next Avoidance be good.
17. A grant of a Next Avoidance to one is not after grantable by the ſame Grantor to another.
18. Whether the Greating of an Incumbent a Biſhop in Ireland be a ſufficient cauſe of Avoidance.
19. Where a Next Avoidance is granted to Two, whereof the one Releaſe to the other, that Other may after bring a Quare Impedit in his own Name.
20. If one Grantee of the Next Avoidance Preſent the other Grantee of the ſame Avoidance, whether ſuch Grant be void or not?
(1.) AVoidance is, when a Benefice or other Eccleſiaſtical Living is void of a lawful Incumbent: which generally may be ſaid to be Twofold; either in Fact and in deed, as when the Incumbent is dead, or actually deprived: or in Law, as when the ſame perſon or Parſon hath more Benefices than one Incompatible, having no Diſpenſation, nor qualified for PluralityaBro. tit. Quare Imp. nu. 51.. Or an Avoidance is either Temporal or Spiritual: (1) Temporal, as by death of the Incumbent. (2) Spiritual, as by Reſignation, Deprivation, Creation, Ceſſion. The Temporal is an Avoidance de facto; the Spiritual is an Avoidance de jure. Of this latter or Spiritual Avoidance the Eccleſiaſtical Court takes cognizance and determines, and therefore the Supream Head may ſo diſpenſe there, that ſuch Avoidance in Law ſhall never come to be an Avoidance in Deed; and of this Avoidance in Law no Title accrues to the Patron, unleſs ſomething be thereupon done by the Eccleſiaſtical Court, as a Declaratory Sentence, or ſuch like. But upon Avoidance in Deed, Preſentment accrueth to the Patron preſently. Anciently when a Biſhop was alſo the Parſon of any Benefice, either in right of his Biſhoprick, or that the Benefice was annexed to his See, for the proviſion of his Table, or the better maintenance of Hoſpitality, the Fruits of ſuch Benefice or Parſonage, during every vacancy or Avoidance of ſuch Biſhoprick, where the Biſhop was both Lord of a Mannor, and Parſon of a Parſonage thereto annexed, did not come to the King (as they now do, whereby the Parſonage and Mannor are both conſolidated into one, being now both holden to be Temporalties,) but the Parſonage came to the Archbiſhop of the Province, as a Spiritualty granted to his See by Priviledge, during the vacancy of the Sees of ſuch Biſhops as were in his Province, as may appear by the Records of the Lord Archbiſhop of Canterbury. Ex Regiſtro Archi-epiſc. Cant. & Ridl. View. cap. 6. Sect. 1.
(2.) There is in operation of Law a wide difference between Avoidance and Next Avoidance; the former is in eſſe, the other is only in paſſe; the former is the want of an Incumbent upon a Benefice de praeſenti: the other is the Grant of a ſupply of that want de futuro, and is the Grant of a Next Avoidance in a Parſonage or other Spiritual promotion, which is Grantable whiles there is an Incumbent actually in being, and is in the nature of a thing in Action, and therefore will not paſs without Deed. But a preſent Avoidance, though it be not meerly a thing in Action, yet it is not Grantable in that kind as the other: The preſent Avoidance is not valuable, and therefore ſhall not be Aſſets; it may be otherwiſe with a Next Avoidance in ſome Caſes, for the Next Avoidance is but a ChattelbPaſch. 28 El. C. B. … verſ. …. Owen Rep., the Grant whereof is not good without DeedcMich. 31 & 32 Eliz. Cr…s Caſe. Rep. ibid.. For an Advowſon or the Patron's Right of Preſentation to a Church, is not a Spiritual, but a Temporal Inheritance, grantable by Deed, and (if Appendant) as the Mannor it ſelf to which it is Appendant, as an Acceſſory to its Principal.
(3.) The Cognizance of Voidance of Benefices is Eccleſiaſtical by the Statute 25 Ed. 3. cap. 8. it being the want of an Incumbent on a Benefice (as aforeſaid) and is oppoſed to Plenarty. This Voidance may be either by Death, Deprivation, Law or Act of Parliament, Ceſſion or Plurality, Reſignation, Creation, Incapacity, Union, Nonpayment of Tenths, &c. So that a Voidance may happen to be ſuch either in Law, or in deed; virtually, or actually. Reſignation is Juris proprii ſpontanea Refutatio, or the voluntary yielding up of the Incumbent (into the hands of the Ordinary) his intereſt and right, which he hath in his Benefice. Touching the Form of Reſignation, and Proteſtation, which muſt be when the party will Reſign, vid. Regiſt. fo. 302. F. N. B. fo. 273. and this Reſignation, which is one of the cauſes of Avoidance, is to be made to the Ordinary; for it is a Rule in the Canon Law, Apud eum debet fieri Renunciatio, apud quem pertinere dignoſcitur Confirmatio. The Next Avoidance is only a Power legally granted to another by the right Patron to Preſent a Clerk to the Church, when it ſhall next become voiddBroo. tit. Quare Imp. nu. 51.. And during ſuch Voidance of a Parſonage, the Franktenement of the Glebe thereof is ſaid ſo be in no man, but is ſaid to be in Abeyance, that is, only in the remembrance, intendment, and conſideration of the Law, that though for the preſent, during the time of ſuch Vacancy, it be not actually in any perſon, yet it is by way of Abeyance) in hope and expectation belonging to ſuch one as ſhall next enjoy the ſame. The word Avoidance hath Two ſignifications in the Law; the one (and that here intended) is when a Benefice or any Eccleſiaſtical Living becomes Void of an Incumbent; the other may be that, which is underſtood by what we intend in Pleadings in Chancery, when we ſay Confeſſed or Avoided, Traverſed or Denied, &c. which hath no relation to the matter in hand. Likewiſe after the death of a Biſhop, or Parſon, the Freehold is in Abeyance of neceſſityeColt and Glover's Caſe verſ. B…. of C…v. & Lich f. Hob. Rep.; but the Law will not admit the framing of Abeyances needleſs and in vain, as in Vacations of Biſhops, Parſons, or the like, as in caſe of Single Corporations, Biſhops, Deans, and Parſons, which muſt die, and leave a Vacuum of the Freehold f13 Jac. in Scaccar. Rot, 96. Sheffeld verſ. Ratcliff Hob. Rep.. And this Next Avoidance is a Chattel locally, where the Advowſon is, not where the Deed is; for it was Reſolved in the Caſe of Holland verſ. Shelley, That the Advowſon had ſuch a Locality in the Rape, where the Church was, that it accrued to the Plaintiff, whereſoever the Deed of Grant, or the Grantee himſelf wasgMich. 17 Jac. C. B. Rot. 2710. Holland verſ. Shelley. Hob. Rep..
(4.) C. brought a Quare Impedit againſt the Archbiſhop of Canterbury and others, and Declared upon a Grant of the Next Avoidance, and the Defendant demanded Oyer of the Deed; and the Plaintiff ſhewed a Letter, which was written by his Father to the true Patron, by which he had Writ to his Father, that he had given to his Son, that was the Plaintiff, the next Avoidance; and upon this there was a Demurr: And the whole Court for the Demurr, For that ſuch Letter was a Mockery, for the Grant was not good without Deed: and Judgment was given accordinglyiMich. 31 & 32 Eliz. C. B. Cripps verſ. the Arch…. of Cant. and others. Ower. Rep.. But by Deed it is Grantable, whereby Advowſons are alſo Grantable, as other Inheritances are, and the delivery of the Deed of Grant of it ſhall be inſtead of Livery made of the Church it ſelf, according to Sir Edward Coke, in the firſt Part of his Inſtitutes kCo. 1. par. Inſtit. 46. & 335..
(5.) If a Tenant in tail and his Son joyn in a Grant of the Next Avoidance, it is void againſt the Son, and no Confirmation; for in the caſe of a Quare Impedit brought by Sir Marmaduke Wivel, the Point was this: Tenant in tail of an Advowſon, and his Son and Heir joyned in a Grant of the Next Avoidance. The Tenant in tail died; and it was Adjudged, that the Grant was utterly void againſt the Son and heir that joyned in the Grant, becauſe he had nothing in the Advowſon, neither in poſſeſſion or right, nor in Actual poſſibility at the time of the Grant*Sir Marmad. Wivel's Caſe. Hob. Rep..
(6.) The Acceptance of an Archdeaconry by one who hath a Benefice with Cure of Souls, may work an Avoidance at the Canon Law as to ſuch Archdeaconry; yet an Archdeaconry, and the Promotion thereof, as being not any Cure of Souls, though an Eccleſiaſtical Preferment, ſeems not to be within the Statute of 21 H. 8. 13. And the Opinion of Wray Chief Juſtice, in Ʋnderhill's Caſe upon that Statute was, that he conceived the Law there to be qualified in that caſe, by reaſon of a Proviſo in the ſaid Statute, viz. Provided, that no Deanary, Archdeaconry, &c. be taken or comprehended under the name of a Benefice having Cure of Souls, in any Article above ſpecifiedlPaſch. 31 Eliz. B. R. Ʋnderhil and Savage's Caſe. Leon. Rep..
(7.) In a Quare Impedit the Caſe was, The Plaintiff counted, that R. B. was ſeized of an Advowſon, and granted the Next Avoidance to the Plaintiff and H. B. and that afterwards the Church became void, and after during the Avoidance H. B. releaſed to the Plaintiff, and ſo that it belongs to him to Preſent. Upon this Count the Defendant did demurr in Law; for it appeareth upon the Plaintiffs own ſhewing, that H. B. ought to have joyned with the Plaintiff in the Action, for the Releaſe being made after the Church became void, is not of any effect, but utterly void. So is the Grant of the Preſentment to the Church where the Church is void, for it is a thing in Action. Vid. the Lord Dyer, 28 H. 6. 26. 3 M. Dyer 129. 11 Eliz. Dyer 283. And afterwards Judgment was given, that the Releaſe was voidmMich. 30 & 31 El. C. B. Caſe Brckesby againſt Wickham and the Biſhop of Lincoln..
(8.) Touching Avoidances there is a wide difference between the Judgment of the Common Law, and that of the Canon; for if a meer Lay-man, not having holy Orders, be Preſented to a Benefice, the Church remains void according to the Canon Law, notwithſtanding ſuch Preſentation; but at the Common Law, albeit this be a meer nullity there alſo, and void, yet it doth adjudge the Church to be Full according to the publick Admiſſion, Inſtitution, and Induction, and not according to the capacity of the perſon, which is a thing ſecret, until ſuch an one be deprived for it by Sentence in the Spiritual Court; and ſo the Church in conſtruction of Law (underſtand it of the Common Law) is held void but from the time of Deprivation, of which notice ought to be given to the PatronnHill. 36 Eliz. B. R. Poph. Rep.. So that according to the Canon Law there cannot be a Plenarty by the Preſentation, Admiſſion, Inſtitution, and Induction of a meer Lay-man to a Church; it is otherwiſe at the Common Law, which doth not ſo much conſider the Capacity or Incapacity of the perſon Inſtituted and Inducted, as the Inſtitution and Induction it ſelf, until ſuch time as there is a Sentence of Deprivation in the Eccleſiaſtical Court.
(9.) Ceſſion is when an Eccleſiaſtical perſon Beneficed is Created a Biſhop; or when the Parſon of a Parſonage taketh another Benefice without Diſpenſation, not being otherwiſe qualified for Plurality: In both which caſes their firſt Benefices become void, and are ſaid to be ſo void by Ceſſion; inſomuch that the King ſhall Preſent pro hac vice (whoever be Patron) to that Benefice, which he had who was Created Biſhop; and in the other Caſe the Patron may PreſentoTerms of Law verb. Ceſſion.. So that if a Parſon or Dean in England take and accept of a Biſhoprick in Ireland, it will cauſe that the Firſt Church ſhall become void by Ceſſion pLatch. Rep. fo. 234.. Reſolved in Holland's Caſe, and in Digby's Caſe, 4. Rep. That the Patron may Preſent, as ſoon as the Incumbent is Inſtituted in a Second Living, without Deprivation.
(10.) By the Council of Lateran it was Ordained, That whoever having a Benefice with Cure of Souls, ſhould accept of another cum Cura, ſhould ipſo jure be deprived of the former, the Patron whereof might Preſent as to a Benefice voidqConc. Lat. An. 1215. Innoc. 3. Pap.; and this without any Sentence Declaratory of the Firſt Church being void, if there were no Licenſe or Diſpenſation to the contrary in the caſer24 E. 3. 30, & 24 E. 3. 26. b. acc. & F. N. B. 24. l., to prevent a Ceſſion of the former Benefice. For it hath been Reſolved, That the Acceptance of a Second Benefice voids the former by Ceſſion, without any Sentence Declaratory by the Statute of 21 H. 8. 13. but if having a Benefice cum Cura he Accept of an Archdeaconry, the ſame is not ſuch a Benefice with Cure of Souls within the ſaid Statute, as to make the former void, as was then alſo ReſolvedsPaſch. 31 Eliz. B. R. Ʋnderhil and Savage's Caſe. Leon. 1. Rep. 316..
(11.) In caſe of Ceſſion in this kind, it is requiſite that Notice thereof be given by the Ordinary to the Patron, otherwiſe the Lapſe will not incurr againſt him, in caſe he Preſent not within the Six monthstCo. 4. par. 77. in Holland's Caſe.. Nor do the Courts at Common Law take notice of ſuch Ceſſion, until the ſame be certified unto them by the Ordinary. And wherever an Eccleſiaſtical Dignity and a Benefice with Cure are Incompatible, there the Acceptance of the one will be a Ceſſion of the other; For which reaſon, if the Incumbent of a Parſonage or Vicarage with Cure, be made Dean of a Cathedral, his Parſonage or Vicarage becomes void by Ceſſion u5 Ed. 3. 3. Qu. Imp. 35. 24 E. 3. 38. Parſ. Law, c. 16., unleſs he be qualified for Plurality. Or if a Dean be made a Biſhop, yea, though a Dean or Parſon in England be made a Biſhop in Ireland (as aforeſaid) his Benefice becomes void, as was Reſolved in Evans and Askwith's Caſe; for that the Conſtitution or Council, which makes it void, is general, and not limited to any place: And ſo it was alſo Reſolved, 3 E. 3. Fitz. Trial, and ſo adjudged, 21 Jac. C. B. in the Caſe between Woodley and the Biſhop of Exon and Manwaring xTri…. 3 Car. B. R. Evans and Kiffin verſ. Askwith. Jones Rep..
(12.) The caſe may ſo happen, that albeit a man having a Benefice with Cure of Souls accept another, and be Inſtituted and Inducted into the ſame; yet his Firſt Benefice ſhall not be void by Ceſſion, though the Benefices be incompatible, though there be no Diſpenſation in the caſe, and although himſelf be not otherwiſe qualified for Pluralities: For it hath been Reſolved, That if a man having one Benefice, accept another, and be Inſtituted and Inducted into the Second, and then read not his Articles; that yet the Firſt Benefice voids not by Ceſſion, becauſe the Second is as not taken yDy. on St. 13 Eliz. the laſt Caſe vouch'd, in Caſe S…ubely verſ. Bu…ler. Hob. Rep.. Notwithſtanding, it cannot be denied, but that where a man having a Benefice with Cure of Souls, above the value of Eight pounds per Ann. doth take another with Cure, and is thereto Admitted, Inſtituted, and Inducted, the Firſt Benefice (without Diſpenſation) becomes void, as in the Caſe of the King againſt George Lord Archbiſhop of Canterbury: In which Caſe it was held, That the Church was abſolutely void in facto & jure by taking of a Second Benefice, and that by the expreſs words of the Statute of 21 H. 8. So that by the Acceptance of a Second Benefice the Church is void facto & jure, quoad the Patron and all otherszTrin. 4 Car. Rot. 441. the King verſ. George Archb. of Cant. and Th…. P…yſt. Cro. Rep.. Sed Q. whether void as to an Uſurper; for in ſome caſes a Benefice may be void as to ſome perſons, and not void as to others: As in the Caſe of Simony, whereby as well as by Ceſſion a Church becomes void; yet in that caſe although it be void to all men quorum intereſt, to the King and his Incumbent, and all that claim under him, and to the Pariſhioners, to the Ordinary, and to the like, yet (according to Sir Hen. Hobart Chief Juſtice) it is not void to an Uſurper; for a man without Right cannot Preſent unto it as to a Church void, nor the Ordinary ſo diſcharge himſelf, if he receive the Clerk of an Uſurper; for he is none of them quorum intereſt. Paſch. 14 Jac. Rot. 1026. Caſe of Winchcombe againſt the Biſhop of Wincheſter and Rich. Pulleſton. Hob. Rep.
(13.) If the Next Avoidance be granted to Three perſons, and after the Church become void, and then Two of the Three Preſent the Third Grantee, being a Clerk; in this caſe the Preſentation is good, and the Biſhop may not refuſe him, inaſmuch as all Three were Joynt-tenants thereof by the Grant, and only Two of them joyn in the Preſentment, for that the Third perſon cannot Preſent himſelf; but if only one of theſe Three Grantees Preſent the Third, the Biſhop hath power to refuſe himaD. 13, 14 Eliz. 304. 54. Rol. Abr. ver. Preſentment, lit. M.. And if an Incumbent having the Advowſon, do Deviſe the Next Avoidance, it ſeems it is good. Trin. 13 Jac. B. R. Harris verſ. Auſten. Rol. Rep.
(14.) In Holland's Caſe it was Reſolved, That before the Statute of 21 H. 8. c. 13. if he which had a Benefice with Cure, accept another with Cure, the Firſt was void; but this was no Avoidance by the Common Law, but by Conſtitution of the Pope, of which the Patron might take Notice if he would, and Preſent, without Deprivation: But becauſe the Avoidance accrued by the Eccleſiaſtical Law, no Lapſe incurred without Notice, as upon a Deprivation or Reſignation; ſo that the Church was void for the benefit of the Prtron, not for his diſadvantage: But now if the Firſt Benefice be of the value of Eight pounds per annum, the Patron at his peril ought to Preſent, for to an Avoidance by Parliament every one is party, but if not of Eight pounds, it is void by the Eccleſiaſtical Law, of which he needs not take Notice bCo. 4. Holland's Caſe. 39 Eliz..
(15.) In a Quare Impedit The Defendant ſaid A. was ſeized of the Advowſon of the Church of D. and by Deed 19 Jac. granted to J. S. the Next Avoidance, and that J. S. died, and made his Executor, who Preſented the Plantiff to the Church being void. Upon Non conceſſit it was found, That A. granted to J. S. durante vita ipſius J. S. primam & proximam Advocationem, and that he died before the Church became void. Whether this was an abſolute Grant of the Next Avoidance, as is pretended, was the Queſtion. And Reſolved, it was not; but it is limited to him to Preſent to the Advowſon if it becomes void during his life, and not that otherwiſe it ſhould go to his Executors; and therefore it was Adjudged againſt the DefendantcTrin. 14 Car. B. R. Mann and the Biſhop of Briſtol and others. Cro. par. 3..
(16.) The Incumbent of a Church purchaſed the Advowſon thereof in Fee, and deviſed that his Executor ſhould Preſent after his deceaſe, and deviſed the Inheritance to another in Fee. It was ſaid, the deviſe of the Next Avoidance was void, becauſe when his Will ſhould take effect, the Church was inſtantly void. But the Court held the deviſe was good, for the Law is ſo, and it ſhall be good, according to the intent of the party expreſſed in his willdPynchin and Dr. Harris. Cro. par. 2.. The Grant of the Next Avoidance during the Avoidance, is void in Law. Steephens and Clark's Caſe. More's Reports.
(17.) In a Quare Impedit the Caſe was, The Corporation of B. being ſeized of an Advowſon, granted the Next Avoidance to J. S. and afterward granted primam & proximam Advocationem to the Earl of B. who granted it to the Plaintiff: The Church became void, J. S. Preſented his Clerk, who was Inducted, and then the Church became void again. It was Reſolved, that the Second Grant was void, ſo as the Plaintiff had no Title, for when he had granted primam & proximam Advocationem to one, he had not Authority to grant it after to another; but if the Firſt Grant had been loſt ſo as it could not have been pleaded, there perhaps the Second Grand had been goodeWilliams and the B. of Lincolns Caſe. Cro. par. 1..
(18.) In a Quare Impedit the Caſe was, H. being Incumbent of a Church, was Created a Biſhop in Ireland, and the Queen Preſented the Defendant. It was the Opinion of the Juſtices, That this Creating of the Incumbent a Biſhop in Ireland was a good cauſe of Avoidance, and that the Queen ſhould have it by her Prerogative: But if the Queen doth not take the benefit of the Firſt Avoidance, but ſuffers a Stranger to Preſent, and the Preſentee dies, ſhe may not have Prerogative to Preſent to the Second AvoidancefMich. 42 & 43 Eliz. B. R. Sir R. Baſſet and Gee's Caſe. Cro. par. 1..
(19.) The Next Avoidance of a Church was granted to A. and B. A. releaſes to B. and after the Church became void: It was Adjudged in this Caſe, That B. may Preſent, and upon Diſturbance have a Quare Impedit in his own NamegBenet and the Biſhop of Norwich's Caſe. Cro. par. 1.. Or thus: The Next Avoidance was granted to Two, the one Releaſed to the other, who brought a Quare Impedit in his own Name; and it was adjudged maintainable, becauſe it was before the Church was voidhLewes and Benet's Caſe. More's Rep▪.
(20.) A. ſeized of the Mannor of D. to which an Advowſon was Appendant, granted the Next Avoidance to B. and D. & eorum cuilibet conjunctim & diviſim Haered. Executor. & Aſſignatis ſuis. The Church void, B. Preſents D. to the Church: Adjudged, that the Preſentment of him was good, though he were one of the Grantees iSir Godfr. Foliamb's Caſe. More's Rep..