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of the Court of Exchequer. The subject of the different 

 species of defence to suits of this nature will be more pro- 

 perly considered under the head of TITHES ; but it should 

 be observed that by the old law, upon the principle of 

 ' nullum tempus occurrit ecclesiaj,' there was no period of 

 limitation to these suits, so that the church could, at any 

 distance of time, recover land or tithes, which it could he 

 proved to have enjoyed within legal memory, I. e. since the 

 accession of Richard I. To remedy this with respect to 

 tithes, the stat. 2 and 3 Will. IV. cap. 100, after appointing 

 periods of limitation for tithe suits by the king, by lay persons, 

 and corporations aggregate, whether spiritual or temporal, 

 provides that in all such suits by spiritual persons or cor- 

 porations sole, a claim of discharge from the payment of 

 tithes by the customary commutation called a modus, or of 

 o total exemption by prescription, shall be indefeasible upon 

 evidence showing that the modus was paid or exemption had 

 for the whole time that two persons in succession may have 

 held the benefice in respect of which tithes are claimed, and 

 for not less than three years after the appointment, institution, 

 or induction of a third person thereto. And it is further 

 provided, that if the period of the holding of such two per- 

 sons be less than sixty years, it shall be necessary, in order 

 to establish the modus or the exemption, to show its existence 

 for so long a time as with that period shall make up ihe 

 full period of sixty years ; and also for the further period of 

 three years from the appointment, institution, or induction 

 of a third person to the same benefice. The statute con- 

 tains an exception for the cases where it shall be proved 

 that the modus was paid, or the exemption had, by consent 

 evidenced by some deed or writing. 



And with respect to actions and suits for recovery of lands 

 or rents by parsons, vicars, or other spiritual corporations 

 sole, the 29th sect, of 3 and 4 Will. IV. c. 27 subjects them 

 to the period of limitation of two successive incumbencies, 

 together with six years after the appointment of a third per- 

 son to the benefice, or in case of this period not amounting to 

 sixty years, then to tho full period of limitation of sixty years. 



Having thug shown how possession of the different kinds 

 of benefices in England is acquired and maintained, and 

 what are the principal legal incidents of such possession, it 

 remains to consider how benefices may be vacated or avoided. 

 And this may happen several ways : 1. By the death of the 

 incumbent ; 2. By resignation, which is made into the hands 

 of the ordinary, except in the case of donatives, which must 

 be resigned into the hands of the patron, who alone hai 

 jurisdiction over them. The resignation must be absolute, 

 unless it be for tho purpose of exchange, in which case it 

 may be made on the condition that the exchange shall tuke 

 full effect. Where two parsons wish to exchange benefices, 

 they must obtain a licence from the ordinary to that effect ; and 

 if the exchange is not fully executed by both parties during 

 their lives, all the proceedings are void. (See Burn, EC- 

 cleg Law, tit. Exchange.) 3. A benefice may be avoided 

 by the incumbent's being promoted to a bishoprick ; but tbe 

 avoidance in this case does not take place till the actual con- 

 secration of the new prelate. The patronage of the benefice 

 so vacant belongs for that turn to the king, except in the case 

 of a clergyman, beneficcd in England, accepting an Irish 

 bishoprick : for no person can accept a dignity or benefice in 

 Ireland until he has first resigned all his preferments in 

 England; so that in this case the patron, and not the king, 

 has the benefit of the avoidance. Tho avoidance may bo 

 prevented by a licence from tbe crown to hold the benefice 

 in commendam. Grants in commemlam may be either 

 temporary or perpetual. They are said to be derived from 

 an antient practice in the Roman Catholic church, whereby, 

 when a church was vacant, and could not be immediately 

 filled up, the care of it was commended by the bishop or 

 other ecclesiastical superior to gome person of merit, who 

 should take the direction of it until the vacancy was filled 

 up, but without meddling with the profits. This practice, 

 however, in process of time being abused for the purpose of 

 evading the provisions of the canon law against pluralities, 

 became the subject of considerable complaint, and of some 

 restraints, by the authority of popes and councils, and parti- 

 cularly of the celebrated Council of Trent in the sixteenth 

 century. (Vide Father Paul's Treatise on Benefices.) A 

 benefice may be granted in commendam to a bishop after 

 consecration, but then the patron's consent must be ob- 

 tained, in order to render the commendam valid. [See COM- 

 MKNDAM.] If the incumbent of a donative be promoted to 

 a bishoprick, n<> CUSMI.U takes place, but it scums that he 



may retain the donative without a commendam. (See 

 Viner's Alir, tit. Presentation, K. 6 ) 



4. If an incumbent of a benefice with cure of souls accepts 

 a second benefice of a like nature without procuring a dis- 

 pensation, the first, by the provisions of the canon law, is 

 so far void, that the patron may present another clerk, or 

 the bishop may deprive ; but till deprivation no advantage 

 can be taken by lapse. And the stat. 21 Hen. VIII. c. 13 

 provides, that where a person, having a benefice of the value 

 of Hi. per annum or upwards, according to the valuation of 

 the king's books, accepts any other, the first shall be ad- 

 judged void, unless he obtains a dispensation in conformity 

 with the provisions of the statute. And dispensations not 

 in conformity with the statute are declared void, and heavy 

 penalties are imposed upon persons endeavouring to procure 

 them. But by virtue of such dispensations, spiritual per- 

 sons of the king's council may hold three benefices with 

 cure, and the other persons qualified by the statute to re- 

 ceive dispensations may each hold two such benefices. 



The persons who may receive dispensations are the king's 

 chaplains, those of the queen and royal family, and other 

 persons who are allowed by the statute to retain a certain 

 number of chaplains, and also the brethren and sons of all 

 temporal lords, the brethren and sons of knights, and all 

 doctors and bachelors of divinity and law, admitted to their 

 degrees in due form by the universities. The privilege is not 

 extended to the brethren and sons of baronets, as the rank 

 of baronet did not exist at the time when the statute was 

 passed. [See CHAPLAIN.] / 



The statute expressly excepts deaneries, archdeaconries, 

 chancellorships, treafurerships, chanterships, prebends, and 

 sinecure rectories. Donatives are within the statute, if a do- 

 native is the first living : but if a donative is the second living 

 ti'keu without a dispensation, the first is not made void by 

 the statute, the words of which are ' instituted and inducted 

 to any other,' words not applicable to donatives. But it 

 seems that both in the oases excepted by tho statute, and 

 in the case where the second living is a donative, a dis- 

 pensation is equally necessary in order to hold both prefer- 

 ments, as otherwise the first would be voidable by the 

 canon law. 



The stat. 36 Geo. III. c. S3 has brought chapels and 

 churches, augmented by Queen Anne's l>ounty, within the 

 Statute of Pluralities, by enacting that such churches and 

 chapels shall be considered as preservative benefices, and 

 that the license to serve them shall render other livings 

 voidable in the same manner as institution to presentative 

 benefices. It appears that both by the common law, and 

 by the provisions of stat. 37 Hen. VIII. c. 21, and 1 7 Char. 

 II. c. 3, a union or consolidation of two benefices into one 

 might with consent of patrons, ordinaries, and incumbents, 

 be made in such a manner as not to be affected by the 

 Statute of Pluralities. (See CHURCH, and Burn's Eccles, 

 Law, tit. Union.) 



For the manner of obtaining dispensations from the 

 archbishop, and for the form of such dispensations, and of 

 the confirmation thereof by the lord chancellor, and the pro- 

 visions which the canon law requires to be inserted in such 

 dispensations, see Burn's Eccles. Law, title Plurality. 



6. Another mode of avoidance of a benefice, is by de- 

 privation under a sentence of an ecclesiastical court. Tho 

 principal causes on which sentence of deprivation is usually 

 founded, are heresy, blasphemy, gross immorality ; or con 

 viction of treason, murder, or felony. 



6. A benefice may be avoided by act of the law ; as where 

 the incumbent omits or refuses to subscribe the Thirty- 

 Nine Articles, or declaration of conformity to the Liturgy, 

 or to read the Articles or Book of Common Prayer, in pur- 

 suance of the statutes which render those acts necessary. 

 But the most remarkable mode of avoidance which is to bo 

 classed under this head, is that for simony, in pursuance of 

 the stat. 31 Eliz. c. G. By this statute for the avoiding of 

 simony, it is among other things enacted, that if any patron, 

 for any sum of money, reward, profit, or benefit, or for any 

 promise, agreement, grant, bond, of or for any sum of 

 money, reward, gift, profit, or benefit, shall present or collate 

 any person to an ecclesiastical benefice with cure of souls or 

 dignity, such presentation or collation shall he utterly void, 

 and the crown shall present to the benefice for that turn 

 only. The statute also imposes a penalty upon the parties 

 to the simoniacal contract to the amount of double the value 

 of a year's profit of the benefice, and for ever disables the 

 person corhiplly procuring or accepting the benefice from 



