INSTITUTION, OR
COLLATION.

Entry of insti

tution in the public register of the ordinary.

Letters testi

Institution being given to a clerk, a distinct and particular entry thereof is to be made in the public register of the ordinary: that is, not only that such a clerk received institution on such a day, and in such a year, but if the clerk was presented, then at whose presentation, and whether in his own right, or in the right of another; and if collated or presented by the Crown, then whether in the Crown's own right or by lapse. This has been the practice, as far back as any ecclesiastical records remain: and that such entries be duly made and carefully preserved is of great importance, both to the clerk, whose letters of institution may be destroyed or lost, and to the patron, whose title may suffer in time to come by the want of proper evidence upon whose presentation it was that institution was given (1): and Lord Coke says, "Present admissions and institutions, &c. are the life of advowsons; and therefore if patrons suspect that the registrar of the bishop will be negligent in keeping of them, he may have a certiorari to the bishop, to certify them into the chancery." (2)

Where a blank is left in the register of an institution or collation for the patron's name, parol evidence of common report is admissible to prove who was the patron. (3)

But a copy of the bishop's institution book is not evidence of a presentation by the patron to a living. (4)

The clerk being instituted, the institution is good without any after act; monial of insti- but the ordinary is accustomed to make letters testimonial thereof. (5)

tution.

Seal.

Mandate to induct.

FEES.

Stat. 31 Eliz. c 6. s. 6.

Penalty for being present

ed to a benefice with cure for reward.

It is not material what seal the ordinary makes use of in that case. (6) Thus in Cort v. St. David's (Bishop of) (7) the Chancellor of St. David's had made use of the Bishop of London's seal; and it was held to be sufficient, because it is the act of the Court which makes the institution, and the instrument is only a testimonial of that act; and the seal used, whatever it may be, shall be taken to be the seal of the person instituting for that time.

When institution is complete, the ordinary executes and delivers to the party instituted a written mandate to the archdeacon, or other proper person, to induct him. (8)

By stat. 31 Eliz. c. 6. s. 6. if any person, for any reward or other profit, or any promise or other assurances thereof, directly or indirectly (other than for usual and lawful fees), admit, institute, instal, induct, invest, or place any person in or to any benefice with cure of souls, dignity, prebend, or other living ecclesiastical, he is to forfeit the double value of one year's profit thereof, and the same is to be void, as if such person were naturally dead.

By a constitution of Archbishop Langton, no prelate shall extort any thing, or suffer any thing to be extorted by his officials or archdeacons, for institution, or putting into possession, or for any writing concerning the same to be made. (9)

And by a constitution of Archbishop Stratford it was ordained, that for

(1) Gibson's Codex, 813.

(2) 2 Inst. 358. (a).

(3) Meath (Bishop of) v. Belfield (Lord),

1 Wils. 215.

(4) Tillard v. Shebbeare, 2 ibid. 366. Clarke v. Heath, 1 Sid. 426. Heath v. Pryn, 1 Vent. 14.

(5) Watson's Clergyman's Law, 154. (6) Ibid. 150.

(7) Cro. Car. 341.

(8) Watson's Clergyman's Law, 155.
(9) Lyndwood, Prov. Const. Ang. 197.

COLLATION.

the writing letters of institution or collation, no more shall be taken than INSTITUTION, OR 12d.; but the ordinaries shall allow stipends to their officers, wherewith they shall be contented. And for the sealing of such letters, or to the marshals of the bishop's house, or porters, nothing shall be paid; and if any person shall take any thing contrary to the premises, he shall restore double within a month; otherwise, if he is a clerk beneficed, he shall be suspended from his office and benefice; if he is not beneficed, or a lay person, he shall be interdicted from the entrance of the church, until he shall make satisfaction as aforesaid. (1)

But generally the ecclesiastical fees at this day are regulated by the practice and custom of every diocese, according to a table confirmed by Archbishop Whitgift, and as is directed by the 135th canon.

Collations and institutions proceeding upon petition are by stat. 5 & 6 Stat. 5 & 6 Vict. c. 79. liable to the following duties:

"Where the same shall proceed upon a presentation

And where it shall proceed upon the petition of the patron, to be himself admitted and instituted

S. d.

2 0 0

700

Vict. c. 79. Stamp duties upon collations and institutions.

And if in the latter case the net yearly value of such benefice, dignity, or promotion (2), shall amount to 3007., or upwards, then for every 1007. thereof, over and above the first 200, a further duty of 5 0 0" By stat. 6 & 7 Vict. c. 72. s. 2. " where institution shall proceed upon the petition of the patron to be himself admitted and instituted, such certificate shall be written upon the instrument of institution charged with duty by stat. 5 & 6 Vict. c. 79.; and no such instrument as aforesaid shall be used or be available, unless nor until such certificate shall be so written thereon; and such instrument shall be stamped, to denote the proper duty chargeable &c. in respect thereof."

Stat. 6 & 7 Vict. c. 72. the value of the benefice to be written upon the donation,

Certificate of

First-fruits to

be compounded for after institu

tion.

By stat. 26 Hen. 8. c. 3. s. 2. every person, before any actual or real possession, or meddling with the profits of his benefice or spiritual promotion, shall pay or compound for the first-fruits for one year to the king's use, at reasonable days and upon good sureties. First-fruits are paid three months after institution, and tenths are usually First-fruits and paid at Christmas.

tenths, when and where to

By stat. 1 & 2 Vict. c. 20. ss. 2 & 3. the collection of first-fruits and tenths be paid. is transferred to the Queen Anne's Bounty Office.

(1) Lyndwood, Prov. Const. Ang. 222. (2) The value of such “benefice, dignity, or promotion" is to be ascertained by the cerLacate of the Ecclesiastical Commissioners

for England, but two or more benefices epis.
copally or permanently united will only be
deemed one benefice.

NATURE OF
INTEREST.

Matrimonial

causes.

INTERVENER.

NATURE OF INTEREST — Matrimonial causes — Incestuous marriages — Judgment of Sir John Nicholl in Faremouth v. Watson · Persons in remainder may possibly be entitled to promote an original suit — Judgment of Sir John Nicholl in Chichester v. DonegalCauses of benefice — Will causes — ·A person who has no interest cannot be permitted to intervene Judgment of Sir William Scott in Turner v. Meyers-Position of interveners in respect of the cause- When the object of the intervention is to get rid of the defendant.

In ecclesiastical suits a third party may interpose, if his interests, either in respect to his property or his person, be affected. (1)

In Pertreis v. Tondear (2) Sir William Scott said, "Every person interested, who thinks there is a legal defect, may apply, and has a right to a declaratory sentence [of nullity of marriage], if his application be well founded. It may be necessary for the convenience and happiness of families and of the public likewise, that the real character of these domestic connections should be ascertained and known." (3) Thus a proceeding to annul a marriage on the plea of insanity, instituted on the part of the husband after his recovery, has been sustained. (4) And in Ray v. Sherwood (5) it was held, that a father, quá father, had a sufficient interest to entitle him to a suit in the civil form, for the purpose of annulling the marriage of his daughter, when of age, by reason of incest.

In a cause of divorce, where the alleged marriage is denied to be valid, the Court may, probably, permit third parties, who have estates expectant, inter alia, upon the issue of such alleged marriage being illegitimate, and who, consequently, are interested in the question of its validity, to be cited "to see proceedings" in the cause, so far as relates to the marriage. (6)

In a matrimonial cause, if the proceedings be taken against a party who has either solemnised or contracted marriage with another, such other or third party may, if he or she please, interpose in such suit, to protect his or her own rights, in any part or stage of the proceedings, even after the conclusion of the cause. (7)

It matters not whether the party appear in aid of, or in opposition to, the party cited; neither does it make any difference that he has had notice of the suit, and of the plaintiff having proceeded to proof. (8)

In Dalrymple v. Dalrymple (9), which was a case for restitution of conjugal rights brought by a wife against a husband, who denied the validity of the marriage, and had married a second wife; Sir William Scott affirmed the first marriage, and in speaking of the wife of the second marriage, said that "she was in substance a party to the suit, and might have

(1) Donegal (Marchioness of) v. Donegal (Marquis of), 3 Phil. 586. Oughton, tit. 14. (2) 1 Consist. 138.

(3) Et vide Ray v. Sherwood, 1 Curt. 173. 193. Vide post, tit. MARRIAGE.

(4) Turner v. Meyers, 1 Consist. 414.

(5) 1 Curt. 193.

(6) Montague v. Montague, 2 Add. $72. (7) Oughton, tit. 14.

(8) Ibid.

(9) 2 ibid. 59. 137.

been so in point of form if she had chosen to intervene." Afterwards, on INTERVENEr. appeal to the Court of Arches, an allegation was asserted on this lady's behalf, and time prayed, which was refused by the judge of the Arches. On appeal to the delegates, time was allowed, and the cause being there retained, her allegation was given in and opposed, but ultimately rejected.

In a matrimonial cause, the publication of evidence and the conclusion of the cause do not prevent the interposition of a third party alleging a prior contract, and a previous marriage. He must, however, declare on oath that he does not intervene with any malicious intention, or for the purpose of protracting litigation, and that he believes he can make good his allegations; and if he does this, he may be admitted to propound and prove his interest, notwithstanding publication, and the conclusion of the cause. (1) And in cases of consanguinity "there is reason for the interference of others, as the marriage can only be affected inter vivos; for if the death of either of the contracted parties takes place, the marriage cannot be set aside." (2)

Judgment of

Sir John

In the case of incestuous marriages, it has been the common course for Incestuous them to be annulled, not only at the suit of either of the parties, but at the marriages. instance of third persons, whose interests are prejudiced, or likely to be prejudiced, by such a connexion. Thus in Faremouth v. Watson (3) Sir John Nicholl observed, "This suit originated at Exeter, but was brought into this Court by appeal on an incidental question; the cause has been retained here, and now comes upon the merits as an original cause. "It is a proceeding to declare void the marriage of Samuel Watson with Catherine Kingwell on account of affinity, she being the sister of Ann, his former wife.

"The suit is brought as a civil suit; the parties bringing it are the sisters of Samuel Watson, who have an interest under the will of their mother, contingent upon the death of their brother without lawful issue; these sisters are also his next of kin; the Court has already, on the admission of the allegation, given an opinion that a slight interest is sufficient to enable a party to bring a suit of this description, and there is full proof of a sufficient interest here.

"The marriage of John Kingwell, the father of the two sisters, with Anu Wedger, in 1748, is proved by the entry of that marriage, and by their subsequent cohabitation, reputation, and acknowledgment.

"The birth and baptism of their children, Ann and Catherine, is also proved by the entries of their baptism, and reputation, and acknowledgment as the children of John and Ann Kingwell; and by their reputation and acknowledgment of each other as sisters.

"The marriage of Samuel Watson in 1780 with Ann, and her subsequent death, are proved by the registers: Ann died in 1788; it has been objected that these facts were not proved by any one who was present either at the marriage, or the funeral. This is not necessary; their identity is sufficient; proof by exhibits is more stringent. Besides, there is no attempt to prove diversity; it would have been important to the adverse party himself and

(1) Oughton, tit. 14.

gal (Marquis and Marchioness of ), 1 Add.

27.

(2) Per Cur. in re Samuel Turner, 1 Contist. 415. n. post, 582. Chichester v. Done- (3) 1 Phil. 355.

Nicholl, in
Faremouth v.

Watson.

INTERVENER.

Persons in remainder may possibly be entitled to promote an original suit. Judgment of Sir John Nicholl in Chi

chester v. Donegal.

Causes of benefice.

Will causes.

his children to have proved it: his silence, therefore, tends to confirm the fact, and there is no suspicion of collusion.

"The subsequent marriage of Samuel Watson with Catherine, the sister of his first wife, is not proved by direct evidence of the fact, or by the entry in any register; the place of that marriage having been kept secret: but the cohabitation of these parties, their acknowledgment of each other as husband and wife, their having had four children as their issue, and their always claiming to be husband and wife, is most fully proved.

"Eighteen years of cohabitation, reputation, and acknowledgment; the concealment of the place where the marriage was celebrated; the absence of all attempt in the party himself to deny or disprove the fact, leave no doubt in my mind that, for the purposes of this suit, the fact is sufficiently established.

"If no marriage took place, no injustice will be done: here is an incestuous connection which ought to be stopped; and the issue are illegitimate. "The Court, therefore, cannot do wrong in pronouncing the marriage void, and in signing the sentence prayed."

It seems that persons in remainder may possibly be entitled to promote an original suit, to declare a marriage void by reason of consanguinity. Thus in Chichester v. Donegal (1) Sir John Nicholl observed, "In suffering or ordering this decree to issue, the judge appealed from appears to have considered, that it could at least lead to no injustice to give parties so deeply interested, as those in remainder, notice of the proceedings, and to afford them an opportunity of intervening, if they thought it for their interest, leaving it for them to choose whether they would appear or not. He seems to have conceived, that as persons in remainder had been allowed to bring suits of nullity to declare a marriage void by reason of consanguinity, as in the case of Maynard v. Heselrige (2) and in other instances; so by analogy, and upon principle, they might also possibly be entitled even to institute such an original suit under the Marriage Act, though no instance had yet occurred, the more especially as the Marriage Act itself is of no very remote antiquity, and as suits of nullity under that act were comparatively unfrequent till in quite modern times. Perhaps he concluded, at the same time, that it was unnecessary for him to dismiss the party, as the party might attain the effect of that dismissal, by the simple process of not appearing. But upon these, and similar points, the Court below intimated no opinion, and still less does this Court; they were undetermined by the judge from whom this appeal is brought, and they have scarcely been touched upon even in argument before me."

In a cause of a benefice, as in a proceeding by way of duplex querela, where a clerk is demanding institution to a living of which a third party is in possession, it is fit that such third party should be at liberty to intervene, lest another be instituted to his benefice. (3)

So in a cause of a will, where legacies are left, the executor, desiring to invalidate such will and to have it declared null by a judicial sentence, and so escape payment of the legacies, might collude with some of the next of

(1) 1 Add. 16.

(2) Commissary of Surry's Court, Hil.

1789, Mich. 1790. Vide etiam Faremouth

v. Watson, 1 Phil. $55.

(3) Oughton, tit. 14.