DISTRICT CHURCHES OR Stat. 2 & 3 Vict. c. 49. ss. 1 & 2. Stat. 2 & 3 Vict. c.49. ss. 3,4 & 5. Augmentations to be subject to stat. 59 Geo. 3. c. 134., touching 4. DISTRICT CHURCHES OR CHAPELS. By stat. 2 & 3 Vict. c. 49. s. 1. district chapelries become benefices when augmented by Queen Anne's Bounty. By stat. 2 & 3 Vict. c. 49. s. 2. any augmented church or chapel, having a district, is to be a perpetual curacy. By stat. 2&3 Vict. c. 49. ss. 3, 4, & 5. the governors of Queen Anne's Bounty may augment churches; and every such church or chapel so augmented, to which a district chapelry shall have been assigned, is subjected to the provisions and regulations of stat. 59 Geo. 3. c. 134. touching the assignment of district chapelries, except so far as is by this act otherwise provided; the assignment but nothing in this act contained is to alter or affect the provisions of stat. 1 Geo. 1. c. 10., enacting that all churches, curacies, or chapels, to be augmented by the governors of the Bounty, should be perpetual cures and benefices, and that the ministers duly nominated and licensed thereto, should be bodies politic and corporate, with perpetual succession, and other privileges and capacities therein mentioned. of districts: but not to affect the provisions of stat. 1 Geo. 1. c.10. 4. FORM OF THE GRANT OF AN AUGMENTATION UNDER This indenture, made the of the other day of 6 1847, between the Master and Fellows of Emmanuel College, in the University of Cambridge, of the one part, and the Reverend A. B., clerk, vicar of the parish church of Thorpe, in the county of Whereas the tithes of corn, hay, and part. wood arising within the parish of Thorpe aforesaid belong to the said Master and Fellows; and whereas the clear annual value of the vicarage of the said parish church at the time of the execution of these presents amounts to the sum of 150l. only; and whereas the said Master and Fellows are desirous, in exercise of the power to them for that purpose given by a certain act of parliament made and passed in the first and second years of the reign of his late Majesty King William the Fourth, intituled, " An Act to extend the Provisions of an Act passed in the Twenty-ninth Year of the Reign of His Majesty King Charles the Second, intituled, An Act for confirming and perpetuating Augmentations made by Ecclesiastical Persons to small Vicarages and Curacies' and for other Purposes," of making such augmentation to the incumbent of the said vicarage out of the said tithes as hereinafter is granted: Now this indenture witnesseth, that for effectuating the said desire, and by virtue of the power to the said Master and Fellows for this purpose given by the said act of parliament of the first and second years of the reign of his late Majesty King William the Fourth, and of every or any other power them in anywise enabling in this behalf, they the said Master and Fellows have granted, and by this deed intended to be deposited in the registry of the diocese of Norwich (within which diocese the said vicarage is locally situate), as required by the said act of parliament of the first and second years of the reign of his late Majesty King William the Fourth, do grant and confirm unto the said A. B., vicar of the said parish church of OF AUGMENTA TION. Thorpe, and his successors, vicars of the same parish church for the time FORM OF GRANT being, for ever, the annual rent of 50l. of lawful money current in the United Kingdom, to be charged and chargeable upon, and yearly issuing and payable out of all and singular the tithes of corn, hay, and wood arising within the said parish of Thorpe, to have, hold, receive, take, and enjoy the said annual rent of 501. unto the said A. B., vicar of the said parish church of Thorpe, and his successors, vicars of the same parish church for the time being for ever, to be paid and payable by equal half-yearly payments, that is to say, on the day of and the day of in every year, and the first half-yearly payment of the said annual rent of 50l. to be made day of — now next ensuing. (1) In witness, &c. (2) on the AVOIDANCE. 1. DEFINED, pp. 81, 82. 2. GRANTS OF AVOIDANCE, pp. 82-84. An actual vacancy can never be granted by a subject· An avoidance must be conveyed by dred Construction of grants of avoidance - - Words of specification, how extended Where a prerogative right precludes the grantee from the literal enjoyment of the grant · When enjoyment of the grant affected by an event subsequent to the grant - Where the grant is defeated by act of grantee - Grantor cannot alien for a longer period than his interest continues - · Grant by tenant for years not defeasible by surrender of his ad. ministrator The grant of a next avoidance passes but a chattel- -One of two grantees may release before avoidance Effect of the Crown not taking advantage of an avoidance caused by the promotion of the incumbent. 3. How AN AVOIDANCE MAY OCCUR, pp. 84-92. - BY CONSECRATION BY RESIGNATION BY CESSION STAT. 1 & 2 Vicr. c. 106. makes distance, population, and yearly value the joint criteria by which the legality of holding two preferments is to be determined. Induction and institution were requisite, in order that lapse of time should run against the patron — Distinction between void and roidable Judgment of Lord Tenterden in Halton (clerk) v. Cove (clerk) — Judgment of Chief Justice Tindal in Alston (clerk) v. Atlay Ecclesiastical dignities or benefices cannot be held by the same person in England and Ireland — AVOIDANCE EY ACT OF LAW. BY DEPRIVATION BY DEATH. -- 4. AVOIDANCE, HOW TRIED, p. 92. Appeal upon sentence of deprivation. 1. DEFINED. -- Vacatio beneficii, or the avoidance of an ecclesiastical benefice, as opposed to plenarty, is the want of a lawful incumbent, during which vacancy the law looks on the church quasi viduata, without her spiritual husband, and regards the possessions thereof as in abeyance. (3) Avoidances are of two kinds, either in fact or in law. An avoidance in fact is when the church is actually and in deed destitute of an incumbent, as from the death of the party. An avoidance in law is when the church, (1) This form is variable, as the cases may require, to meet the provisions of ss. 4, 17, 18, and 29. of the act, (2) I am indebted for the above precedent to my learned friend Mr. Berrey. (3) Godolphin's Repertorium, Introd. 42. DEFINED. Avoidances are of two kinds, in law. either in fact or G DEFINED. being full of an incumbent, is notwithstanding frustrate of its right and lawful incumbent by reason of incapacity or crime in the person that occupies instead of the rightful and lawful incumbent, or any similar means. GRANTS OF An actual vacancy can never be granted by a subject. An avoidance must be conveyed by deed. Construction of grants of avoidances. Words of specification, how extended. Where a prerogative right 2. GRANTS OF AVOIDANCES. On an avoidance, whether in deed or in law, a grant of the actual vacancy cannot be made by a subject (1), though it may by the Crown; nor can such vacancy be released by one joint tenant to another, after the vacancy; yet, where a person is patron and incumbent he may devise the next presentation; and if a person seised of the advowson of a church of which he is likewise incumbent, devises the next presentation to his executor, this is a good devise, and the executor shall take, although the church is void when the will comes into operation. (2) An avoidance being part of an advowson, which is incorporeal, must be conveyed by deed. The avoidance granted must be a future avoidance. The avoidance must also be specified; and if the grant of that avoidance be unavailable through a prior act of the grantor, the grant will not serve for another avoidance: as, if a person grants the next presentation to one, and afterwards, before avoidance, grants the next presentation to another, the second grant is void, that presentation having been granted before, and the second grantee shall not have the second presentation, as the grant does not import it, all here being the act of the party, and every grant being defeated by an elder title. (3) Where, however, a church is void, and a grant of the next avoidance is made, the grant extends to the next that falls after the church is filled, and not to the present turn, ut res magis valeat quam pereat. A grant of a second avoidance may, in a special case, be available after two inductions and institutions; as if the grant of a second avoidance, and he that has the grant of the first avoidance, presents on a simoniacal contract (4), though his clerk be instituted and inducted, and the king afterwards present on-his title of simony, and his clerk be also instituted and inducted; yet this will not prevent him that has the second avoidance from presenting when the church shall be void of the king's incumbent ; because the institution and induction of the clerk of him that has the first avoidance is void, and the king presents as to his turn, and so only bars the grantee of the first avoidance from presenting again, and not the other when the king's right is satisfied. (5) A grant of the first presentation will not be inoperative where, from a subsequent event, a prerogative right precludes the grantee from the (1) Stephens v. Clark, Moore (Sir F.), 89. (4) By stat. 12 Ann. stat. ii. c. 12., if another's name, and be presented, collated, instituted, or inducted to any such ecclesiastical living, &c., it shall be void, and the king may present, as on any simoniacal contract. Stephens' Ecclesiastical Statutes, 710. (5) Winchcombe v. Winchester (Bishop of), Hob. 165. Watson's Clergyman's Law 87-92. the literal en literal enjoyment of his grant; as if after a grant of the next presentation GRANTS OF to a living, the incumbent be made a bishop, by which the living becomes AVOIDANCES. vacant, and the king is entitled to present, the grantee may present on precludes the the next vacancy, occasioned by the death or resignation of the king's grantee from presentee; for here the whole title being by law subject to a prerogative joyment of his presentation, paramount, or rather collateral, to it, it suspends the effect grant. of its being productive for a time, and the general law of the land will not work to the prejudice of a grantee by a strict and literal exposition of the words of a grant. (1) ment of the grant affected It will be observed, that in each of these cases the enjoyment of the grant When enjoywas affected by an event occurring subsequent to the grant. In like manner, if the disability to present according to the tenor of the grant con- by an event veying the avoidance arise subsequently to the grant by the act of the subsequent to the grant. grantor, the right of the grantee shall only be postponed; as, if a person grant the three next avoidances successively, and upon the first avoidance the grantor himself presents, the grantee is not ousted, but may present at the subsequent avoidances. So, if such subsequent disability arise from an usurpation on the grantee of the next avoidance, who brings his suit, and pendente lite the clerk resigns, the grantee, after judgment, shall have the consequent avoidance. But where the grant of the next avoidance is defeated by the act of the grantee, as if he do not present the next time the church becomes vacant, he loses his right, and cannot present at any subsequent avoidance (2): so, though the grantee may assign his right before the avoidance, yet it is void after avoidance, and his right will be lost. (3) A grantor can only alien an advowson for so long a period as his own estate or interest continues, for conveyances which operate by grant are not tortious conveyances; that is, they convey nothing more than the grantor has a right to convey. Thus, a tenant in tail of a manor to which an advowson was appendant granted the next avoidance of the advowson, and died; the issue entered upon the manor, and the grant was held void. (4) So, if a tenant in tail grant his advowson to others, to the use of himself and his wife, and his heirs male, and the wife survives the husband, she gains nothing by such grant, the estate being determined by the death of the tenant in tail. In these cases, however, though the estate created by the grant is determinable by the heir by entry, instead of his being put to his action, if it had passed by a tortious conveyance, and a discontinuance had been created, yet until determined it has all the properties of a fee simple or tail, and is subject to dower and the like; and if a son and heir join with his father, tenant in tail, in granting the next avoidance, the grant will be utterly void against the son and heir, he having nothing in the advowson, in either possession or right, or in actual possibility, at the time of the grant. (5) If a tenant for life grant the next presentation to a church, such grant is Where the grant is defeated by act of grantee. A grantor tinues. (1) Calland v. Troward, 2 Hen. Black. 330., affirmed in 6 T. R. 439. (2) Baskervile's case, 7 Co. 28. (a). Woodley. Exeter (Bishop of ), Cro. Jac. 691. (3) 2 Rol Abr. Graunts (F.), 45. Rol. Abr. Estate (4) Bowles v. Walter, 45. GRANTS OF Grant by te nant for years not defeasible his adminis trator. void as against the remainder man (1); but good, nevertheless, against the grantor as long as his estate continues. On the other hand, where a grantor, possessed of a term of years in a rectory, to which the advowson of a vicarage was appendant, granted by surrender of the next avoidance of the vicarage, and the defendant pleaded that after the grant the grantor died, and his administrator surrendered his term in the rectory to the bishop then in reversion, it was held, that, notwithstanding the surrender, the grantee should have the avoidance; for otherwise the grantor would derogate from his own grant, and would make it void at his pleasure, which is contrary to the rule, that the grant of every one should be taken most strongly against himself; and the term for the benefit of the grantee had in some respects a continuance; as if lessee for years grant a rent charge, and afterwards surrender, yet, for the benefit of the grantee, the term has continuance, although in rei veritate it is determined (2); for the doctrine of surrender or merger never operates to the disadvantage of strangers, though it may benefit them to the disadvantage of the persons between whose estates the surrender or merger takes place. The grant of a next avoidance passes but a chattel. One of two grantees may release before avoidance. Effect of the taking advan- caused by the promotion of the incumbent. The grant of a next avoidance to a person, his heirs and assigns, passes but a chattel, which goes to the executors; for the thing being a chattel, the word heirs will not create in it an estate of inheritance. (3) One of two grantees of the next avoidance of a church may release to the other before the avoidance happens; for although the grantor cannot release to them, to increase their estate, because their interest is future, and not in possession, yet one of them, to extinguish his interest, may release to the other in respect of the privity. (4) If the king grant a manor with an advowson appendant, the church being vacant, the turn does not pass unless it be mentioned in the grant (5); but if the advowson be in gross, and not appendant, it is otherwise. If the crown do not take advantage of the avoidance upon the promotion of an incumbent to a bishopric, it will not have its prerogative presentation to a second avoidance (6); unless such second avoidance be occasioned by the incumbent's own act, in which case the crown does not lose its presentation. (7) If a grant of a rectory by the Crown contain an exception merely of all churches and vicarages, a perpetual curacy will pass, it not being within the exception. (8) HOW AN MAY OCCUR. BY CONSECRA TION. 3. How AN AVOIDANCE MAY OCCUR. An avoidance may happen by consecration, resignation, cession, act of law, deprivation, or death. (1) Davenport's case, & Co. 144. (b). (3) Dyer, 26. (a). pl. 165. (4) Bennet v. Norwich (Bishop of), Cro. Eliz. 600. Lincoln (Bishop of) v. Wolfor stan, 3 Burr. 1506. Brooksbies' case, Cro. Eliz. 173. (5) Anon. Hob. 140. Fane's case, Cro. Jac. 197. Grey v. Hesketh, Ambl. 268. (6) Basset (Sir Robert) v. Gee, Cro. Eliz. 790. (7) Regina v. Lincoln (Bishop of), Cro. Eliz. 119. (8) Thrale v. London (Bishop of ), 1 Hen. Black. 416. |