ADDENDA ET CORRIGENDA

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VOL. IV.

Vacation.

4.-A very important decision, that the 28 Hen. 8, c. 11, remains still in force, was given in the Court of Exchequer, Wednesday, April 27, 1842, (sittings in banco, before Lord Abinger.) Special paper. Dakins, clerk, v. Leaman, clerk. It was an action in which the plaintiff sought to recover the sum of 150l. under the following circumstances: The father of the plaintiff was the rector of St. James's parish in Colchester, and at his death the plaintiff, who was then in holy orders, was requested by the sequestrators appointed by the Bishop of London, ad interim, until the living should be filled up, to undertake the cure of the parish. The rev. gentleman accordingly took upon himself the duties of curate, which he discharged from week to week for some time, until the defendant was appointed to the living. Having demanded renumeration from the defendant, which was refused, the plaintiff was obliged to bring this action. The defendant, in answer thereto, put on the record several special pleas, to which the plaintiff demurred as being insufficient in law to bar his claim. The defence rested mainly on the fact that the plaintiff had not been regularly licensed to this duty by the Bishop of London, it being contended that such was a necessary condition to his right to recover; while it was further urged that the plaintiff's right, which was founded on the Act of Uniformity of Henry VIII., was barred by the recent statute of 1 & 2 Vict. c. 106. On both these points the court, at the close of the case, pronounced its unanimous opinion in favour of the plaintiff. As to the operation of the recent statute upon that of Henry VIII., it was enough to say that it could only bar the plaintiff by express enactments, of which there were none to be found in it, and as it did not appear that the plaintiff's appointment was of a permanent character, it was clear that no licence was necessary. His appointment by the sequestrators was evidently only of a temporary kind, and one which there needed no authority from the bishop to enable him to accept. Under these circumstances, the judgment of the court must be in favour of the plaintiff. Judgment accordingly. (Quare, whether the action should not have been brought by the Sequestrators.)

Visitation.

30.-line 16, for “5 & 6 Geo. 4,” read “5 & 6 Will. 4.”

VOL. IV.

a

68.-Power of feme covert to make will (last case), Ex parte Tucker, in re Inman, 1 Mann. & Granger, 519.

125, n.- For "were" read " was.

218.-Legacy vested or contingent (last case), Lister v. Bradley, 1 Hare's Rep. of Vice-Chancellor Wigram's Court, p. 10.

296.- Bona notabilia, administration of, in Ireland, Whyte v. Rose, 4 P. & D.

159.

384.-Receiver appointed by Court of Chancery pendente lite in Ecclesiastical Court, 1 Hare's Rep. of Vice-Chancellor Wigram's Court, p. 152. 457.-Assets, plene administravit (last case), Jackson and another (churchwardens) v. Rowley, 1 Carr. & Marsh. 97.

vie

It

[MR. Serjeant Stephen observes (b) (reciting in part the
language of Blackstone), "It is only in an estate per auter
that our law affords an example of the title by occupancy.
is difficult at least to put any other instance wherein there is
not some owner appointed by the law. In the case of a sole
corporation, as a parson of a church, when he dies or resigns,
though there is no actual owner of the land till a successor is
appointed, yet there is a legal potential ownership subsisting in
contemplation of law; and when the successor is appointed, his
appointment shall have a retrospect and relation backwards,
so as to entitle him to all the profits from the instant that the
vacancy commenced."-ED.]

By the common law of the church, the profits of the vacation were to be laid out for the benefit of the church, or reserved for the successor; but by special privilege or custom, the bishop or archdeacon might have the same, or some part thereof; so also, it is said, the king might take the profits of a free chapel, and the patron of a donative the profits of such donative, during the time of vacation (c).

But by the statute of the 28 Hen. 8, c. 11, it is enacted as followeth: viz. "Forasmuch as in the statute for the payment of first fruits, it is not declared who shall have the fruits, tithes,

(a) [The history of the ancient ecclesiastical law upon this subject will be found in Thomassin's Vetus et Nova Ecclesiæ Disciplina, i. 2, c.

VOL. IV.

51, "De spolio et de statu rerum ec-
clesiæ sede vacante."-ED.]

(b) [Stephen's Comm. vol. i. 418.]
() Lind. 137; Gibs. 749.

B

and other profits of spiritual promotions, offices, benefices and dignities, during the time of vacation thereof; divers of the archbishops and bishops of this realm have not only when the time of the taking of tithes hath approached deferred the collation of such benefices as have been of their own patronage, but also have upon presentations of clerks made unto them by the just patrons deferred to institute, induct, and admit the same clerks, to the intent that they might receive to their own use the same tithes growing and arising during the vacation: so that through such delays (over and above the first fruits) they have been constrained to lose all or the most part of one year's profits, to their great loss and hindrance: it is therefore enacted, that the tithes, fruits, oblations, obventions, emoluments, commodities, advantages, rents, and all other whatsoever revenues, casualties, and profits, certain and uncertain, belonging to any archdeaconry, deanry, prebend, parsonage, vicarage, hospital, wardenship, provostship, or other spiritual promotion, benefice, dignity or office, growing or coming during the time of vacation, shall belong to such person as shall be thereunto next presented, promoted, instituted, inducted, or admitted, towards the payment of his first fruits."

"And if any archbishop, bishop, archdeacon, ordinary, or any other person or persons to their uses and behoof, shall receive or take the same, and shall not upon reasonable request render the same to the next incumbent lawfully instituted, inducted or admitted, or shall let or interrupt the said incumbent to have the same, he shall forfeit treble value, half to the king and half to the incumbent, to be recovered in any of the king's courts."

To such Person as shall be thereunto next presented, promoted, instituted, inducted, or admitted.]-In order to receive the benefit of this clause, it is not absolutely necessary that the clerk be presented by the lawful patron; but if he get institution and induction, though he is afterwards removed by quare impedit, he, and not the clerk who comes in upon such removal, shall have the profits of the vacation. And the reason is, because till he is removed he is incumbent de facto, and as such is liable to all burdens and duties, and is therefore in reason and equity entitled to all the profits (d).

But in cases where the institution and induction are declared by law to be ipso facto void (as in case of simony, or the like), there the church having been really never full since the death of the foregoing incumbent, and by consequence the vacancy still continuing, there the profits of course shall pass to him who shall be next presented, instituted, and inducted (e).

But though the church doth become void by the omission of (d) 1 Roll. Rep. 62; Gibs. 749; 4 (e) Gibs. 749.

Vin. Abr. 495.