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<NAME>John Latta</NAME>
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<FRONT>
<DIV1 TYPE="title page">
<PB REF="1">
<PB REF="2" MS="y">
<P>JUDGE <HI>DODERIDGES</HI> READING OF <HI>Advow&s;ons,</HI> or <HI>Church-Livings.</HI></P>
<P>WHEREIN Is &s;et forth, the Intere&s;ts of the <HI>Par&s;on, Patron,</HI> and <HI>Ordinary, &amp;c.</HI></P>
<P>WITH Many other things concerning the Matter, as they were delivered at &s;everal READINGS at <HI>NEW-INNE.</HI></P>
<P><HI>And now Publi&s;hed for a Common Good.</HI></P>
<P><HI>LONDON:</HI> Printed for <HI>Laur. Chapman,</HI> and are to &s;old at his Shop next door to the Fountain Tavern in the Strand. 1663.</P>
</DIV1>
<DIV1 TYPE="table of contents">
<PB REF="3">
<PB REF="3">
<HEAD>THE CONTENTS OF the Lectures en&s;uing.</HEAD>
<LIST>
<HEAD>LECT. 1.</HEAD>
<ITEM>THe Name, Nature, Divi&s;ions, Con&s;equents, Cau&s;es and incidents of <HI>Advow&s;ons</HI> or Patro|nages. Fol. 1</ITEM>
<ITEM>2 The Right that both the Patron and Ordi|arie hath joyntly to intermeddle with the Church. fol. 10</ITEM>
<ITEM>3 The &s;everall Intere&s;ts ef the patron and Ordinarie, and what it is. fol. 16.</ITEM>
<ITEM>4 What manner of Inheritance an <HI>Advow&s;on</HI> is. fol. 19</ITEM>
<ITEM>5 The word <HI>Right,</HI> and the word <HI>Advow&s;on</HI> explai|ned, and to what Inheritance an <HI>Advow&s;on</HI> may be ap|pendant originally. fol. 24</ITEM>
<ITEM>6 To what things an <HI>Advow&s;on</HI> may bee appendant &s;econdarily. fol. 30</ITEM>
<ITEM>7 In what manner <HI>Advow&s;ons</HI> are appendant to a Mannor. fol. 35</ITEM>
<ITEM>8 If an <HI>Advow&s;on</HI> appendant, that con&s;i&s;ts of De|me&s;nes and Services, &s;hall he appendant in re&s;pect of the Deme&s;nes onely, or in re&s;pect of the Deme&s;nes and Ser|vices. fol. 42.</ITEM>
<ITEM>9 How an <HI>Advow&s;on</HI> may be &s;evered from the prin|cipall,
<PB REF="4"> and by what meanes it may bee reconne<GAP DESC="illegible" REASON="faint" EXTENT="1 letter">ed there|unto againe. fol. 47</ITEM>
<ITEM>10 Of <HI>Advow&s;ons</HI> in Gro&s;&s;e. fol. 54</ITEM>
<ITEM>11 Of <HI>Advow&s;ons</HI> partly appendant, partly in Gro&s;&s;e. fol. 58</ITEM>
<ITEM>12 What Pre&s;entation is, and what is the effect and fruit thereof, and in what manner Pre&s;entation and No|mination differ. fol. 62</ITEM>
<ITEM>13 The things incident to Pre&s;entation pro&s;ecuted, who may pre&s;ent, what Par&s;ons may be pre&s;ented, to whom the pre&s;entation mu&s;t be made, and the manner thereof. fol. 70.</ITEM>
<ITEM>14 The two first particular cau&s;es of avoydance of Churches, viz. Is either Temporall, as death; or Spiri|tuall, as deprivation: the one of it &s;elfe being manife&s;t, and the other a di&s;charge of the Dignity or Mini&s;tery. fol. 73.</ITEM>
<ITEM>15 The third particular cau&s;e of Avoydance, being Spirituall, is Re&s;ignation. fol. 78</ITEM>
<ITEM>16 The la&s;t &s;peciall meanes, in avoydance of Spirituall promotions pre&s;entative, is Creation. fol. 86</ITEM>
</LIST>
</DIV1>
</FRONT>
<BODY>
<DIV1 TYPE="treatise">
<PB N="1" REF="4">
<HEAD>A Compleat Par&s;on. <HI>OR,</HI> A De&s;cription of Advow&s;ons.</HEAD>
<DIV2 N="1" TYPE="lecture">
<HEAD>LECT. 1.</HEAD>
<HEAD TYPE="sub">The name, nature, Divi&s;ions, Con&s;equents, cau&s;es, and incidents of Advow&s;ons, or Pa|tronages.</HEAD>
<P>_FOra&s;much as wee are &s;aid to know, <HI>cum Cau&s;as cogno&s;ci|mus,</HI> and &s;eeing hee labou|reth in vaine, that &s;eeketh to apprehend the knowledge of the accident, which is ig|norant of the &s;ub&s;tance: and &s;eeing nothing &s;etteth out the nature of the thing, but the De&s;cription and Definition, and
<PB N="2" REF="5"> that <HI>Omnis quae &agrave; ratione &s;u&s;cipitur, de re aliqua,</HI><NOTE PLACE="marg">Tull. Offic. lib. 1.</NOTE> <HI>in&s;titutio, debet &agrave; definitione profici&s;ci vt intelli|gatur quid &s;it id de quo di&s;putatur:</HI> I will begin as good order requireth, with the De&s;cription of an <HI>Advow&s;on,</HI> that the nature thereof beeing knowne, wee may the better ob&s;erue, the cohe|rence and congruence of this kind of Lear|ning.</P>
<P>An <HI>Advow&s;on</HI> therefore generally con&s;ide|red,<NOTE PLACE="marg">Quid.</NOTE> is a right that a man hath, to preferre his friend, or any fit per&s;on, to promotion Pre&s;enta|tiue, or Donatiue.</P>
<P>This Definition is generall, and may be attri|buted to all per&s;ons, whereof a man may have a <HI>Quare Imp:</HI> if he be Di&s;turbed; for, the Writs mentioned in the Statute, lyeth not onely of Dignities Pre&s;entatiue by the cour&s;e of the Common Law, but al&s;o of promotions Dona|tiue by this Statute: As Chaunteries Dona|tiue, * Free chappels, &amp;c. Al&s;o it lyeth, of a<NOTE PLACE="marg">Fitz. N. Br. 30. Ibid. 33. a. 31. E. Ib. 349. E.</NOTE> Subdeacon&s;hip, or Hermitage, which al&s;o may bee Donatiue, and this is grounded vpon the words of the Statute, <HI>De cetero concedantur bre|via de caeppillis, Prebendis, Vicariis, Ho&s;pitali|bus,</HI><NOTE PLACE="marg">14. H. 3. Fitz. qua|re Imp. 183.</NOTE> <HI>Abbatis quae prius concedi non con&s;ueuerunt;</HI> Yet neuerthele&s;&s;e, I read that a <HI>Quare Imp:</HI> was maintained of a Chappell, by the common Law, but &s;uch a Chappell (perchance) was pre&s;entatiue, and not Donatiue. Promo|tions pre&s;entatiue (whereof the Writs are men|tioned
<PB N="3" REF="5"> in the Statute) were maintained at the Common Law; as Churches, Chaunteries, and Chappels pre&s;entatiue, and &s;uch like.</P>
<P>And therefore as the afore-&s;pecified Definiti|on, or De&s;cription is generall, and appliable to both: So are tho&s;e &s;ub&s;equent, more properly to be applyed to Churches <HI>Advow&s;ons,</HI> in which are Cures of Soules.<NOTE PLACE="marg"><P>Summa ho|&s;ten&s;is de iu|re patrono.</P>
<P>Su~ma Au|glic eod. tit.</P>
<P>S&uacute;ma Sil|ue&s;trine tit. Patronatus.</P></NOTE></P>
<P>An <HI>Advow&s;on,</HI> or as the terme, <HI>Jus Patronatus e&s;t pote&s;tas pre&s;entandi aliquem in&s;tituendu~ ad be|neficium Eccle&s;iae &s;implex &amp; vacans:</HI> and of other re&s;pects the cau&s;es and incidents of <HI>Advow&s;ons,</HI> is De&s;cribed more amply in &s;uch manner, <HI>Ius patronatus, e&s;t ius honorificum, onero&s;um, &amp; vtile.</HI></P>
<P>In effect this: A <HI>Patronage,</HI> or an <HI>Advow&s;on,</HI> is a right to pre&s;ent to the Bi&s;hops or Ordinarie a fit per&s;on, by him to be admitted and In&s;titu|ted into a Spirituall Benifice when it becom|meth voyd: And hee that hath &s;uch right to pre&s;ent, is called Patron: who is thus de&s;cri|bed, <HI>Patronus est Defen&s;or Eccle&s;iae, qui habet ius pre&s;entandi Epi&s;copo aliquem vel aliquos in a|liqua Eccle&s;ia &amp; in ea ab ea in&s;tituatur.</HI> And he is &s;o called, <HI>De patrocinio,</HI> of defence: For that, that he &s;hould defend the Church, or <HI>&acirc; &s;imily|tudine Patris, quia &s;icut pater filium, fic patronus Eccl&egrave;&s;iam, de non e&s;&s;e, de ducit ad e&s;&s;e.</HI></P>
<P>Hee is called of Old <HI>Glanvile, Advocatus;</HI> as that he &s;hould &s;ay, an Advocate of the cau&s;es of
<PB N="4" REF="6"> the Church, and therefore the inheritance is cal|led <HI>Advocatio,</HI> or <HI>Advow&s;on,</HI> or is deui&s;ed <HI>De|vocando:</HI> for that, that the Patron hath power, for the pre&s;entment of a fit per&s;on, by the name of his pre&s;entation. And heere by the way, let no man thinke, that I thru&s;t my &s;elfe <HI>in me&s;&s;em alienam,</HI> and to borrow of the Cannoni&s;ts, as well now the De&s;cription and Etimologie be|fore &s;hewed, and after al&s;o, to fetch from them more high matter. But let &s;uch curious Car|pers,<NOTE PLACE="marg">43. H. 6 40 v, A&s;titon</NOTE> (if any bee) remember the Speech of <HI>A&s;ly|ton,</HI> * who affirmeth, that every <HI>Advow&s;on,</HI> and right of Patronage, dependeth upon two Lawes, that is to &s;ay; the Law of holy Church, and our Lawes, &s;o that the true determination of &s;uch learning, is as he &s;aith; <HI>Per ius mixtum,</HI> by both Lawes; that is, Eccle&s;ia&s;ticall, and Temporall: And therefore, when wee purpo&s;e to &s;eeke the things in this kind of learning, wee mu&s;t of ne|ce&s;&s;ity bee beholden to them.</P>
<P>But to returne where wee digre&s;&s;ed.</P>
<P>The materiall cau&s;es and &s;ubjects, in which this learning dependeth, are the things before mentioned. As Churches, Chaunteries, and Chappels pre&s;entatiue, and &s;uch like.</P>
<P>Churches are of three &s;orts
<LIST>
<ITEM>Cathedrall,</ITEM>
<ITEM>Collegicall, and</ITEM>
<ITEM>Patrochiall.</ITEM>
</LIST></P>
<PB N="5" REF="6">
<P>A Cathedrall Church, is the &s;eate or Church of a Bi&s;hop, and therefore hee onely may bee &s;aid Incumbent thereof.</P>
<P>Collegiall or Conventuall Churches, are &s;uch, as in times pa&s;t, have beene in Prio|ries, Abbies, or &s;uch like, and are &s;till in Col|ledges.</P>
<P>Parrochial Churches are well knowne, and<NOTE PLACE="marg">Iohan bel|lonius de eti|mologiis.</NOTE> are tho&s;e, <HI>Ad quem plebs convenit ad percipienda Sacramenta Bapti&s;matis &amp; Corporis Chri&s;ti un|de pabulum animas &s;u&s;tentandas libere &s;u&s;cipiunt,</HI> for the Incumbent thereof, is onely charged with the cure of &s;oules. And it is common|ly called by the name of <HI>Rectorie,</HI> which is in|to two &s;orts divided, being either a Par&s;o|nage, or a Vicarage. And &s;o much briefely<NOTE PLACE="marg">34. E. 3. Fitz, Qu. Imp. 187.</NOTE> for the name, matter, and &s;ub&s;tance of <HI>Ad|vow&s;ons.</HI></P>
<P>The former cau&s;e or manner of this Inheri|tance, yeeldeth forth the u&s;uall and ordinarie di&s;tinctions of <HI>Advow&s;ons,</HI> to bee either appen|dant, or in gro&s;&s;e, or part appendant, part in gro&s;&s;e, either for a certaine time, or in re&s;pect of certaine per&s;ons.</P>
<P>The efficient Cau&s;es of a Par&s;onage, are
<LIST>
<ITEM>1. <HI>Ratione Dotationis.</HI></ITEM>
<ITEM>2. <HI>Ratione Fundationis.</HI></ITEM>
<ITEM>3. <HI>Ratione Fundi.</HI></ITEM>
</LIST></P>
<P><HI>Ratione Dotationis,</HI> is, when he, or tho&s;e from whom he derives his interi&s;t, endowed the &s;ame Church.</P>
<PB N="6" REF="7">
<P><HI>Ratione Fundationis,</HI> is, when he or his Ance|ce&s;tors, <MILESTONE N="2"> or tho&s;e from whom he claimes his in|tere&s;t, were founders of the &s;ame Church.</P>
<P><HI>Rationi Fundi,</HI> is, when the Church was <MILESTONE N="3"> built upon his or their Land, from whom hee derives his intere&s;t; or all three together, as appeareth by the ver&s;e, u&s;ed among&s;t the Can|noni&s;ts.</P>
<Q><L>Patronum faciunt dos, edificatio, fundus.</L></Q>
<P>The u&s;uall cau&s;e or cau&s;es, why Patronages<NOTE PLACE="marg">Summa ho|&s;tien&s;. tit. jus Patronas.</NOTE> of Churches are given by the Law, and be|&s;towed upon Lay-men; is, and were, <HI>Vt indu|cantur laici ad fundationem, con&s;tructionem, &amp; Dotationem Eccle&s;iae.</HI></P>
<P>The fruit and effect of a Par&s;onage con&s;i&s;teth in tho&s;e three things.
<LIST>
<ITEM>Honos.</ITEM>
<ITEM>Onus,</ITEM>
<ITEM> &amp;Vtilitas.</ITEM>
</LIST></P>
<P N="1">1.<NOTE PLACE="marg">1. Honos,</NOTE> The <HI>Honour</HI> attributed to a Patron, con&s;i|&s;teth in his right pre&s;entment. In the di&s;cour&s;e whereof, I &s;hall afterward con&s;ider, what is required, before the &s;ame can bee attempted: then what the manner of pre&s;entation is; and la&s;tly, what is required for the making of a full and perfect incumbent.</P>
<P>Before the pre&s;entation can be lawfully made, it is meet that the Church become voyd, and of avoydance, our Law taketh notice, the &s;ame be|ing tryable thereby.</P>
<PB N="7" REF="7">
<P>The manner and meanes how an Avoydance groweth, is either Spirituall, or Temporall.</P>
<P N="1">1 Temporall, by the death of the Incum|bent. <MILESTONE N="1"></P>
<P N="2">2. Spirituall, and this is in divers manners; <MILESTONE N="2"> that is to &s;ay, by Re&s;ignation, Deprivation, Cre|ation, Se&s;&s;ion, and entry into Religion.</P>
<P>As touching pre&s;entation, we are to &s;ee; fir&s;t, what it is, then who &s;hall pre&s;ent, afterwards what per&s;on may be pre&s;ented; and la&s;t of all in what manner the &s;ame mu&s;t be done.</P>
<P>Tho&s;e things, that are required to make a per|fect Incumbent, after the pre&s;entation had, de|pendeth upon the Duty of the Ordinary; As fir&s;t, Admi&s;&s;ion, which requireth examination of the Clarke, whereupon &s;ometime en&s;ueth a refu&s;all, and thereupon, either notice, or no no|tice (as the ca&s;e requireth) is to be given to the patron.</P>
<P>If the Clarke be admitted, then, hee mu&s;t bee in&s;tituted, wee are then to &s;ee what In&s;titution is, and what is the effect thereof, upon which ought to en&s;ue Induction thereinto, likewi&s;e we mu&s;t &s;ee what it is, by whom it is to bee perfor|med, and what it doth import.</P>
<P>If the Patron be remi&s;&s;e, and doth not pre&s;ent within the time limited, then incurreth the lapps of the Patron, to the Bi&s;hop, and from the Bi&s;hop, to the Metropolitan, and from him to the Crowne, where it re&s;teth; but if the
<PB N="8" REF="8"> Bi&s;hop take his time, then is his pre&s;entation a Collation, and in the right of the patron him|&s;elfe.</P>
<P N="2">2 The &s;econd effect of a per&s;onage, (which is<NOTE PLACE="marg">Onus.</NOTE> <HI>Onus</HI>) re&s;teth onely in the defence of the Chur|ches po&s;&s;e&s;&s;ions, to which the Patron and Ordi|narie by aide prayer, are to bee called by the Incumbent, for the defence of the &s;ame, to avoid &s;uch charges and incumbrances, as are unduely laid thereupon.</P>
<P>As touching the third, which is <HI>Vtility,</HI> wee<NOTE PLACE="marg">&V;tilitas.</NOTE> have not any thing to doe with it in our Law; but wee mu&s;t leave the con&s;ideration thereof to the Cannon law, for this Utility is imployed for the &s;u&s;tentation of the patron; for if hee or his po&s;terity being patrons doe fall to decay, then the incumbent of the fruits of the Church by compul&s;ary Cen&s;ure, of the Ordinary, accor|ding to that Law, is to be enforced to make con|tribution to them.</P>
<P>All writs concerning this kind of Inheritance are either given to the patron or Incumbent.</P>
<P>Writs given to the patron are of two &s;orts,<NOTE PLACE="marg">Brevia.</NOTE> for either he demandeth his Inheritance, or pre|&s;entation, again&s;t the po&s;&s;e&s;&s;or, of the patro|nage, or he attempts &s;uit again&s;t the Ordinary, for either not doing, or doing his Duty unduly.</P>
<P>In every action brought again&s;t him that pre|tendeth po&s;&s;e&s;&s;ion, it is to be intended, that ei|ther he is lawfully or unlawfully po&s;&s;e&s;&s;ed.</P>
<PB N="9" REF="8">
<P>The unlawfull po&s;&s;e&s;&s;or, is the u&s;urper, again&s;t whom onely lyeth three Writs which the Sta|tute &s;peaketh of: namely, One of the right, as the writ of right of Advow&s;on, and the other two of the po&s;&s;e&s;&s;ion, as a <HI>Quare Imp:</HI> and Dar|raigne pre&s;entment.</P>
<P>Again&s;t the lawfull po&s;&s;e&s;&s;or, lyeth the writ of<NOTE PLACE="marg">33. H. 6. 34. b. &amp; 35. a. act.</NOTE> <HI>Dower,</HI> for the wife of him that dyed &s;eized of &s;uch e&s;tates as &s;hee might be endowed of, and a <HI>Ce&s;&s;avit</HI> of the land again&s;t the Tenant.</P>
<P>But no Formedon lyeth for the i&s;&s;ue in taile<NOTE PLACE="marg">13. E. 3. 15. b. 33. H. 6. 33. a. 5. H. 7. 36. b. 37. a. Fitzh. 11. br. 217. b.</NOTE> in Di&s;cender, nor for any in the remainder, nor for the Doner in the reverter; for that, that if the <HI>Advow&s;on</HI> be in gro&s;&s;e it cannot properly be di&s;continued, and being appendant it it to be re|continued by the &s;ame meanes, that the land to which it is appendant, is to be recovered.</P>
<P>The Incumbent as touching his right for his Rectory, hath the onely writ of <HI>Juris utrum,</HI> and for his po&s;&s;e&s;&s;ion, any other po&s;&s;e&s;&s;arie action. For if another happen (during his pre&s;entation) to be pre&s;ented by the &s;ame patron, or doe come into the &s;ame Church, by cour&s;e of the Law, &s;o that the patronage commeth into debate, there lyeth a &s;poliation, it being a &s;uit in the <HI>Spirituall Court.</HI></P>
</DIV2>
<DIV2 N="2" TYPE="lecture">
<PB N="10" REF="9">
<HEAD>LECT. 2.</HEAD>
<HEAD TYPE="sub">The right that both the Patron and Ordinarie hath joyntly to intermeddle with the Church.</HEAD>
<P>_IN the former Lecture, or Reading, having delivered in the project, a Di&s;cour&s;e of <HI>Advow&s;ons,</HI> briefely di&s;covering their Name, Nature, Divi&s;ions, con&s;equents, cau&s;es, effects, and In|cidents of the Patronage: Now it remaineth in like manner to pro&s;ecute every of tho&s;e parts, then but poynted at, with a more large and am|ple explication.</P>
<P>Fir&s;t therefore, it is to be con&s;idered, that in every Benefice three per&s;ons have intere&s;t. That is to &s;ay, the Par&s;on hath a Spirituall po&s;&s;e&s;&s;ion. The Ordinarie to &s;ee the Cure &s;erved: And the<NOTE PLACE="marg">12. <HI>H. 8. 7. b. per Poll|yard.</HI></NOTE> Patron hath <HI>Ius pre&s;entandi.</HI></P>
<P>Hence it is that I have &s;aid, that a Patronage is a right of pre&s;entation; therefore it is called, <HI>Ius Patronatus;</HI> not a power, nor an authoritie onely, but a right, intete&s;t, or an Inheritance: The word <HI>Ius</HI> or Right, is diver&s;ly intended,<NOTE PLACE="marg">Com. 284. a.</NOTE> &s;ometimes &s;trictly, to &s;ignifie what is left a man, when that, that was once his owne is wrongful|ly<NOTE PLACE="marg">Com 487. b.</NOTE> taken from him, as by <HI>Di&s;&s;ei&s;in</HI> or &s;uch like.</P>
<P>In which &s;ence, the word <HI>Droit</HI> and <HI>Tort</HI> are <HI>privat&egrave; oppo&s;ita,</HI> and is thus devided; to bee ei|ther<NOTE PLACE="marg">Bracton Ius.</NOTE>
<PB N="11" REF="9"> right of Action, or right of Entrie; &s;ome|times in a more ample &s;ignification, as <HI>Ius ha|bendi, jus po&s;&s;e&s;&s;endi, jus di&s;ponendi,</HI> by which occa&s;ion I purpo&s;e at this time to di&s;cu&s;&s;e, whe|ther the Patron and Ordinarie have right in the Rectorie or Benefice, and what manner of right it is that they have; their right is called <HI>Collate|rall,</HI> as wee read, and not <HI>Habendi,</HI> nor <HI>po&s;&s;e&s;&s;en|di,</HI> nor <HI>retinendi;</HI> for none of them, can have, retaine, or po&s;&s;e&s;&s;e the Church or Rectorie, but their right is, <HI>Ius Di&s;ponendi,</HI> wherein everie of them hath a particular Charge to the po&s;&s;e&s;&s;ions of the Church, &s;o free as that hee may maintaine &s;uch a one as is thereinto to bee pre&s;ented.</P>
<P>That they have a kind of Di&s;po&s;ition in them, it<NOTE PLACE="marg">2. H. 7. 36. Ratio 1.</NOTE> is proved by many rea&s;ons: 1. No charge can be founded to be laid upon the Church in perpetui|tie: to bind their &s;ucce&s;&s;ors, but the Patron and Ordinarie mu&s;t be made parties thereunto as all our books agree, &amp; <HI>Littleton</HI> gives a notable rea|&s;on for it. Which is, that if the Charge be per|petuall, the con&s;ent of all three ought to concur, of which en&s;ueth thus much, that if a writ of an|nuitie be brought again&s;t the par&s;on, &amp; he pray|eth in aid of the Patron &amp; Ordinarie, &amp; the Pa|tron maketh default, and the Ordinarie appea|reth, and confe&s;&s;eth the action; or if the Ordi|narie<NOTE PLACE="marg">12. H. 8. 7. b.</NOTE> make default, and the patron appeare, and confe&s;&s;eth the action, that this annuitie &s;hall not
<PB N="12" REF="10"> bind the &s;ucce&s;&s;or: but if they both appeare and one of them confe&s;&s;e the action, and the other &s;aith not any thing, it &s;hall bind the Rectory in perpetuity. For <HI>Qui tace<GAP DESC="illegible" REASON="faint" EXTENT="1 letter"> con&s;entire videtur.</HI> But if the Par&s;on onely with the con&s;ent of the Or|dinary for tythes or other con&s;ideration execu|tory, charge the Church in perpetuity, it &s;hall bee good, without the con&s;ent of the Patron, as well as if the con&s;ideration executory had re|mained.</P>
<P>Secondly, it followeth, that the charge of the <MILESTONE N="2"> Par&s;on, patron and Ordinary &s;hall binde in like manner as their intre&s;t is. But if a man have an <HI>Advow&s;on</HI> for yeares, and the par&s;on by the con|&s;ent of &s;uch patron and Ordinary, grant rent charge in fee, if the par&s;on die within the terme, and the term our of the <HI>Advow&s;on</HI> pre&s;ents ano|ther, and the term expireth, <HI>Quaere</HI> if then the an|nuity &s;hall be delivered, but it &s;eemeth by &s;ome that it &s;hall be delivered; for that, that this In|cumbent was not the party that made the grant, and therefore he &s;hould not hold it charged any longer, than during the intre&s;t of the patron.</P>
<P>And therefore if two joyntenants in com|mon, or parceners be of an <HI>Advow&s;on,</HI> who agree|eth to pre&s;ent by turne, if the par&s;on joyne in grant of a rent charge in fee, with one of them, the par&s;on &s;hall bee charged and al&s;o his &s;uc|ce&s;&s;ors (<HI>alterius vicibus</HI>) for ever; becau&s;e, tho&s;e &s;ucce&s;&s;ors (that commeth in) by him that made
<PB N="13" REF="10"> the Charge, &s;hall be &s;ubject to it only, and tho&s;e that commeth in by the pre&s;entation of the Pa|tron, that neither joyned nor confirmed, the &s;ame &s;hall hold their land di&s;charged for ever.</P>
<P>Al&s;o, &s;uch Annuitie with which the Rectorie is charged, doth not properly charge the Land but the Par&s;on; for, if the Grantee enter into any part of the Gleebe, hee &s;hall not &s;u&s;pend the rent or annuitie.</P>
<P>And if the Par&s;on, Patron, and Ordinarie, joyne in a grant of an Annuitie to <HI>S. H.</HI> and his heires, except they &s;peake of the &s;ucce&s;&s;ours of the par&s;on, and that the &s;ame be granted for the par&s;on and his &s;ucce&s;&s;ours, this cannot bee good longer than for the time, that the par&s;on that granted the &s;ame, continueth Par&s;on; for an Annuitie is nothing but a par&s;onall Dutie, and no otherwi&s;e. And if &s;uch an Annuitie be gran|ted<NOTE PLACE="marg">21. H. 7. 4. a.</NOTE> over, it is not needfull to have Atturnment; all which proveth, that the &s;ame chargeth not the land, but the par&s;on; yet neverthele&s;&s;e, the par&s;on is charge, for if the Grantor a&s;&s;igne or be removed by any meanes what&s;oever, the charge followeth not his par&s;on, but re&s;teth upon his Succe&s;&s;ours, and the Jurie may bee taken of the Towne where the Church is, which proveth that &s;uch grant chargeth the par&s;on in re&s;pect of the Land.</P>
<P>Moreover, when the Patron and Ordinarie confirmeth the grant of the par&s;on, it is requi|&s;ite
<PB N="14" REF="11"> that the Confirmation be made during &s;uch time, as he is Incumbent that made the Charge; for if hee dye, be removed, re&s;igne, or other|wi&s;e be deprived before the confirmation, &s;uch Confirmation is voyd notwith&s;tanding.</P>
<P>If an Incumbent grant rent charge, to begin after his death out of his Rectorie, and the pa|tron and Ordinarie confirmeth the &s;ame, this is good for long time as it is granted.</P>
<P>The &s;econd principall Rea&s;on, to prove the<NOTE PLACE="marg">Ratio 2.</NOTE> intere&s;t they have to the Church or Rectorie, is,<NOTE PLACE="marg">31. E. 3. Graunt 90. Annuitie.</NOTE> that all three may charge the Church in perpe|tuitie, &s;o may the patron and Ordinarie doe onely in time of vacation, which charge &s;hall bind the Succe&s;&s;or for ever. Becau&s;e none hath intermeddling with the Rectorie, but the Gran|tors afore&s;aid.</P>
<P>The third principall rea&s;on; is this, that as the<NOTE PLACE="marg">Ratio 3.</NOTE> patron and Ordinarie in time of vacation, may<NOTE PLACE="marg">Fitzh. Re|lea&s;e, 57. Jur. ven. 6. 33. aide le Roy, 103.</NOTE> charge the Church in perpetuitie, &s;o they may make a relea&s;e, by which any annuitie that char|geth the Church or Rectorie &s;hall bee extingui|&s;hed, even in the time of vacation.</P>
<P>Al&s;o, if a man hath an annuitie out of the<NOTE PLACE="marg">7. H. 6. 38. b. 8. H. 6. 24.</NOTE> Church of <HI>S.</HI> and afterward this Church is uni|ted to the Church of <HI>D.</HI> and after the united Church becomes voyd, if the Grantee relea&s;e in<NOTE PLACE="marg"><GAP DESC="illegible" REASON="faint" EXTENT="1 letter">1. H. 7. 24.</NOTE> time of vacation to the patron, that was patron of the other Church; that is to &s;ay, of <HI>D.</HI> and to the Ordinarie, &s;uch relea&s;e &s;hall not di&s;charge
<PB N="15" REF="11"> the Incumbent, becau&s;e it was not made to the patron of the Church that was fir&s;t charged, for although both the Churches are united and become one, yet are their patronages di&s;tinct and &s;everall; Moreover, that Intere&s;t that the Patron and Ordinary hath in the Rectory, is but Collaterall and <HI>jus di&s;ponendi,</HI> and no otherwi&s;e, as hath beene formerly &s;aid.</P>
<P>For if an <HI>Advow&s;on</HI> di&s;cend to an Infant, and the Incumbent be impleaded in a writ of Annui|tie, and prayeth ayd of the patron and Ordina|rie, and for that, that the patron is within age, likewi&s;e prayeth that the <HI>Parol</HI> may demurre un|di&s;cu&s;&s;ed during his nonage, this &s;hall not bee granted; but the Infant in &s;uch ca&s;e &s;hall bee ou&s;ted of his age, becau&s;e the charge lyeth upon the par&s;on, and not upon the patron, or Ordina|ry, who are not at any time to enjoy the Rectory them&s;elves, but onely are to have the di&s;po&s;ition<NOTE PLACE="marg">7. H, 4. 16, a.</NOTE> thereof.</P>
<P>Finally, to prove that it is meerely Collaterall: If the patron and Ordinary doe nothing but give licence to the per&s;on to charge his Rectory with an Annuity, this &s;hall bee a good grant to charge the Church in perpetuity. For that, that it is not to any other free Tenants a Charge, but to the par&s;on; becau&s;e neither the patron, nor the<NOTE PLACE="marg">11. H. 5. 7. 8. b. 14. H. 8. 31. a.</NOTE> Ordinary can have the <HI>Church</HI> them&s;elves, but onely to di&s;po&s;e and be&s;tow the &s;ame upon &s;ome other; neverthele&s;&s;e, &s;uch a&s;&s;ent ought to be by writing.</P>
</DIV2>
<DIV2 N="3" TYPE="lecture">
<PB N="16" REF="12">
<HEAD>LECT. 3.</HEAD>
<HEAD TYPE="sub">The &s;everall Intre&s;ts of the Patron and Ordinarie, and what it is.</HEAD>
<P>_IN the Lecture next before, I have &s;et forth to you the right that both the Patron and Ordinary hath joyntly to intermeddle in the Church: Now it remaines likewi&s;e that I declare their &s;everall intere&s;ts: Therefore at this pre|&s;ent, I intend to deliver &s;omething touching the Collaterall intere&s;t of the Patron &s;ole, and after to examine what manner of inheritance an <HI>Ad|vow&s;on</HI> is, and &s;o to referre the intre&s;t of the Or|dinary &s;ole to a more convenient place when as we &s;hall come to &s;peake of Admi&s;&s;ion and In&s;ti|tution.</P>
<P>What Collaterall Intre&s;t alone, the Patron hath in the Church, may in briefe thus bee deci|phered: fir&s;t, by the Common Law, (before the Statute of <HI>We&s;tmin&s;ter</HI> &s;econd) as hee ought by the opinion of &s;ome men, to bring his Writ of <HI>Advow&s;on</HI> of the fifth part, or any le&s;&s;e part of the Tythes and oblations of the Church in any &s;uit of <HI>Iudicavit,</HI> attempted again&s;t the pre&s;enter<NOTE PLACE="marg">Fitzh. 30. b.</NOTE> or Incumbent, that hath &s;ued in the <HI>Spirituall Court</HI> for the recovery of the &s;ame, and hath cau|&s;ed the Patronage in this re&s;pect, to come into
<PB N="17" REF="12"> que&s;tion, or as &s;ome men thinke he might have had his Writ of <HI>Heres,</HI> as a <HI>Precipe quod reddat</HI><NOTE PLACE="marg">38 H. 6, 20 a. Per For|te&s;cue.</NOTE> <HI>advocationem quinque acrarum terrae,</HI> or one a|cre of Land and &s;uch like; For which cau&s;e the Statute was made, to be a re&s;traint for bringing the &s;ame writ, of any le&s;&s;e part than of the fourth part of their Tithes; &s;o that the Statute in this behalfe, was but a re&s;traint of the Common Law: Which argueth, that the comparing of the Rectorie, tendeth Collaterally to be an im|peachment and prejudice to the Patron him|&s;elfe, and &s;o importeth a Collaterall Intre&s;t that the Patron hath to the Church. Againe, by the graunt of the Church the <HI>Advow&s;on</HI> pa&s;&s;eth; wherefore <HI>Herle</HI> &s;ayd in the fir&s;t part of <HI>Ed.</HI> 3. That it was not long &s;ince, when men knew not<NOTE PLACE="marg">Com. 1 57.</NOTE> what an <HI>Advow&s;on</HI> was nor meant, but by the Graunt of the Church, they thought the Ad|vow&s;on to be &s;ufficiently conveyed in the Law, For, &s;aid hee, when they purpo&s;ed to a&s;&s;ure an <HI>Advow&s;on,</HI> their Charter &s;pecified it in the guift of the Church.</P>
<P>Moreouer, the King being Patron, hath often ratified and confirmed the e&s;tate of the incum|bent<NOTE PLACE="marg">45. E. 3. 19b</NOTE> in a Rectorie, that an v&s;urper had pre&s;en|ted; by meanes whereof, he cannot remoue the<NOTE PLACE="marg">32. H. 6. 32 a. 7. H. 4. 13, b.</NOTE> &s;ame Incumbent, unle&s;&s;e for &s;ome cau&s;e hee re|peale his Charter of confirmation.</P>
<P>Notwith&s;tanding, if the King recover by a <HI>Quare Imp:</HI> and after confirmeth the e&s;tate of
<PB N="18" REF="13"> the Incumbent, that the u&s;urper pre&s;ented, by<NOTE PLACE="marg">Fitzh. fol. 34 f. 9, E. 3.</NOTE> meanes whereof, he cannot be removed; at the next Avoydance the King &s;hall pre&s;ent, for the judgement given for him was not at any time executed, which al&s;o proveth the Collaterall In|tere&s;t that the Patron hath to the Chutch; for no par&s;ons can lawfully confirme, but &s;uch as have right to the thing confirmed.</P>
<P>Ancient Books have held, and that not with|out<NOTE PLACE="marg">43. E. 3. 16. 20. E 4. 15, b 5, H. 7. 17. b 6. H. 7. 3, <GAP DESC="illegible" REASON="faint" EXTENT="1 letter">. 12. H, 7, 16, a</NOTE> rea&s;on; that an <HI>Advow&s;on</HI> hath &s;uch an af|finity with the Church it &s;elfe, to which it is granted, and to which it is a Collaterall Intere&s;t (as hath beene &s;aid) that it &s;hould pa&s;&s;e by Live|rie of &s;ei&s;en, made at the Ring of the door of the Church; and although by &s;uch meanes it pa&s;&s;e not at this day, being meerely a thing that lyeth in Grant; yet the &s;ame proveth the Collaterall Intere&s;t of the Patron to the Church; for this o|pinion holden in the Bookes, is granted for the like rea&s;on.<NOTE PLACE="marg">26. H. 8. 2. a 33, H. 6.</NOTE></P>
<P>In a Writ of right of <HI>Advow&s;on,</HI> the Par&s;on &s;hall bee &s;ummoned in the Church, or at the doore of the Church: And if a <HI>villeine</HI> purcha&s;e an <HI>Advow&s;on</HI> in gro&s;&s;e, (<HI>Littleton</HI> &s;aith) full of an Incumbent, the Lord of the &s;ame <HI>villein</HI> may come to the &s;ame Church, and there claime, and the <HI>Advou&s;on</HI> &s;hall be in him; All which things added to the former, &s;ufficiently proveth the Collaterall Intere&s;t that the Patron hath to the Church.</P>
</DIV2>
<DIV2 N="4" TYPE="lecture">
<PB N="19" REF="13">
<HEAD>LECT. 4.</HEAD>
<HEAD TYPE="sub">What manner of inheritance an Advow&s;on is.</HEAD>
<P>_WEE are now to con&s;ider, what man|ner <MILESTONE N="4"> of Inheritance an <HI>Advow&s;on</HI> is; wherefore let us con&s;ider, that everie Inheritance is either: <HI>Hereditas</HI>
<LIST>
<ITEM><HI>Corporata,</HI> or</ITEM>
<ITEM><HI>Incorporata.</HI></ITEM>
</LIST></P>
<P><HI>Hereditas corporata,</HI> is a Meadow, Me&s;&s;uage,<NOTE PLACE="marg">Com. 176. v.</NOTE> Land, pa&s;ture, Rents, &amp;c. that hath &s;ub&s;tance in them&s;elves, and may continue for ever.</P>
<P><HI>Hereditas incorporata</HI> is, Advow&s;ons, Vil|leins, Wayes, Commons, Courts, Pi&s;caries, &amp;c. which are and may be appendant or appurtenant to Inheritances Corporate.</P>
<P>An <HI>Advow&s;on</HI> therefore is Incorporate, of which a man may be &s;ei&s;ied, though not of <HI>De|me&s;ne,</HI> yet of Fee, and as of right.</P>
<P>And although great di&s;putation have beene<NOTE PLACE="marg">21, E, 3, 5, a. 40, E, 3, 44, b. 42, E, 3, 7, b. 1, H, 4, 16, a. 33, H, 6, 34, b. 5, H, 7, 37. 14, H, 7, 26, a. 15, H, 7, 8-43, E, 3, 15, b 33, H, 6, 35. 5, H, 33. b.</NOTE> in our bookes, whether an <HI>Advow&s;on</HI> may bee holden or lye in tenure, yet the mo&s;t authorities concurreth and are, that any <HI>Advow&s;on</HI> either in
<PB N="20" REF="14"> gro&s;&s;e or appendant, lyeth in tenure, as well of a common per&s;on, as of the King. For a <HI>Ce&s;&s;avit</HI> lyeth thereof, and &s;ome have holden that the Lord of whom it was holden may di&s;treine (ei|ther in the Church-yard, or in the Gleebe) the bea&s;ts of the patron onely, if they happen to bee<NOTE PLACE="marg">33. H. 6. 35. b. 5. H. 7. 39. b. 15. H. 8. a.</NOTE> there found, 33. <HI>H. 6. Godred</HI> contrarie: but though the Law be, that there cannot be taken any di&s;tre&s;&s;e, yet the &s;ame makes not any im|peachment of the Tenure, and being parcell of<NOTE PLACE="marg">14 H. 4. 2. b.</NOTE> a Mannor or appendant to it, it may bee holden as &s;ome books are, <HI>pro particula illa.</HI></P>
<P>Therefore it is holden and &s;aid, that an <HI>Ad|vow&s;on</HI> is a tenement, and therefore whereas the King hath given licence to an Abbot to amor|ti&s;e lands and tenements to &s;uch a value, by force whereof hee purcha&s;eth an <HI>Advow&s;on,</HI> and this was holden good, &s;ufficiently pur&s;uing this licence, and therefore in the booke an i&s;&s;ue was taken, if the &s;ame <HI>Advow&s;on</HI> were holden in<NOTE PLACE="marg">5. H. 7. 37. Or. 38, b,</NOTE> <HI>Capite;</HI> and therefore, if a man grant a Ward, or <HI>Omnia terra &amp; tenementa,</HI> that hee hath by rea|&s;on of his Ward, if there bee an <HI>Advow&s;on</HI> hol|den of the Lord, being Guardian the &s;ame pa&s;|&s;eth to the Grantee, by the words of <HI>Omnia ter|ras &amp; tenementa.</HI></P>
<P>Of an <HI>Advow&s;on</HI> a <HI>Precipe quod reddat</HI> lyeth verie well, and a Writ of <HI>Dower</HI> &s;hall bee main|tained<NOTE PLACE="marg">20. E. 4. 15. b</NOTE> of the &s;ame, by the wives of &s;uch as have &s;uch inheritance therein as giveth a Dower, as
<PB N="21" REF="14"> before hath been &s;aid, and &s;o the hu&s;band of her<NOTE PLACE="marg">5. H. 7. 38. 15. H. 7. 18. a. 7. E. 4. 6. Fitzh. 29. 3: 149. d. 3. H. 7. 5, a.</NOTE> that hath the inheritance in it &s;hall bee Tenant by the Courte&s;ie, although there never were had any pre&s;entation by the wife to it.</P>
<P>But yet there &s;hall not be any de&s;cent thereof, from the Brother to the Si&s;ter, of the entire bloud, by the maxime of <HI>po&s;&s;e&s;sio fratis, &amp;c.</HI> But the &s;ame &s;hall de&s;cend to the brother of the half bloud, unle&s;&s;e the fir&s;t have pre&s;ented to it in his life time, but if he have pre&s;ented in his life time,<NOTE PLACE="marg">19. E. 2. Fitzh. Qu. Imp. 177.</NOTE> then it &s;hall de&s;cend to the next heire of the en|tire bloud.</P>
<P>In <HI>Advow&s;on</HI> is an inheritance and cannot be divided into parts and parcels, for in a Writ of right of <HI>Advow&s;on,</HI> if the Tenant &s;ay, that the Demandant is &s;ea&s;ed of the &s;ixth part of the <HI>Ad|vow&s;on,</HI> this &s;hall abate the whole Writ, and yet part thereof may be in &s;ome &s;ort con&s;idered, for there is an u&s;uall difference taken, betweene <HI>Ad|vocatio medietatis Eccle&s;iae,</HI> and <HI>medietas Advo|cationis Eccle&s;iae.</HI></P>
<P>For <HI>Advocatio medietatis Eccle&s;iae,</HI> is where two Patrons be, and every of them having right to pre&s;ent a &s;everall Incumbent to the Bi&s;hop, to be admitted into one and the &s;ame Church, for divers may be &s;everall par&s;ons, and have care<NOTE PLACE="marg">Fitzh. 3. b. 32. H. 6. 11. b. 14. H. 6. 15. b. Fitzh. 30. v.</NOTE> of &s;oules in one pari&s;h, and &s;uch <HI>Advow&s;on</HI> is a like in everie of tho&s;e Patrons, but everie of their pre&s;entments is to the moitie of the &s;ame Church; and therefore it is called <HI>Advocatio
<PB N="22" REF="15"> medietatis Eccle&s;iae,</HI> or as the cau&s;e falleth out, <HI>Advocatio tertiae partis Eccle&s;iae,</HI> and the like.</P>
<P>But <HI>Medietas advocationis Eccle&s;iae,</HI> is after par|tition<NOTE PLACE="marg">7, E, 3, 30, b. Fitzh 31 b. 14, H 6, 15, b. 33. H. 6, 11, b. 5, H, 7, 7. b.</NOTE> betweene parceners, for although the <HI>Ad|vow&s;on</HI> bee entire among&s;t them, yet any of them being di&s;turbed to pre&s;ent at his turn, &s;hall have the Writ of <HI>Medietate,</HI> or of <HI>Tertia,</HI> or of <HI>Quarta parte Advocationis Eccle&s;iae,</HI> as the ca&s;e lyeth.</P>
<P>Al&s;o, if two patrons of &s;everall Churches make<NOTE PLACE="marg">14, H, 6: 15, b. Fitzh. 11, br. 39.</NOTE> union, or confederation of their Churches by the a&s;&s;ent of all tho&s;e who&s;e con&s;ent is requi&s;ite, the patronage of everie of them &s;hall not be but <HI>Medietas Advocationis Eccle&s;iae;</HI> becau&s;e but one Incumbent is onely in this ca&s;e to bee pre&s;ented, and not <HI>Advocatio medietaiis Eccle&s;iae.</HI></P>
<P>And this difference is onely taken and ob|&s;erved in the Writ of Right, which is altoge|ther grounded upon the right of Patronage, But in the <HI>Quare Impedit,</HI> which is onely to re|cover Damages, no &s;uch diver&s;itie is con&s;ide|red, but the Writ is generall, <HI>Pre&s;entare ad Ec|cle&s;iam.</HI></P>
<P>La&s;tly, it is to be con&s;idered, what temporall profits, value or commoditie, this kind of In|heritance is to bee reputed of: It is not by the Law of God, to be be&s;towed upon any Incum|bent for any need or price; but onely re&s;erved<NOTE PLACE="marg">29, E, <GAP DESC="illegible" REASON="faint" EXTENT="1 letter">, 5, b. 9, H, 6 57, a. 32, H, 6, 22, a</NOTE> for &s;uch as are worthy thereof. And therefore it is &s;aid; * That Guardian in Socage of an In|fant
<PB N="23" REF="15"> &s;hall not pre&s;ent to any <HI>Advow&s;on;</HI> becau&s;e<NOTE PLACE="marg">5, H. 7. 36. a. 37. b. 12. H. 8, a.</NOTE> &s;uch pre&s;entation is not to bee be&s;towed for price; for that, that &s;uch Guardian cannot ac|count for the &s;ame; yet neverthele&s;&s;e, becau&s;e the patron thereby may advance his friend, it hath bin often e&s;teemed for A&s;&s;ets in Formed on.</P>
<P>And as the value thereof may come in que&s;ti|on,<NOTE PLACE="marg">8, E, 3. Fitzh, reco|very in va|lue 11 &amp; 9.</NOTE> as a writ of right of <HI>Advow&s;on,</HI> where the Tenant avoucheth, and the voucheel o&s;eth; the Tenant &s;hall recover in value again&s;t the vou|chee, for every Marke that the Church is worth <HI>per Annum</HI> xij d. So that the thing which of it &s;elfe is not valuable, is by a &s;econdary meanes made and e&s;teemed valuable, becau&s;e that other|wi&s;e this mi&s;chiefe &s;hould en&s;ue thereof, which &s;hould be a lo&s;&s;e without recompence.</P>
<P N="1">1 By this it appeareth, that it is an inheritance Incorporate.</P>
<P N="2">2 That it lyeth in Tenure.</P>
<P N="3">3 That it pa&s;&s;eth by name of Tenement.</P>
<P N="4">4 That a <HI>precipi quod reddat</HI> lyeth thereof.</P>
<P N="5">5 That both Tenant in Dower, and Tenant by the courte&s;ie, and in &s;ome ca&s;e a <HI>Po&s;&s;e&s;&s;io fra|tris,</HI> may be thereof.</P>
<P N="6">6 That it is entire by nature, though by acci|dentall meanes otherwi&s;e, and in &s;ome re&s;pect devi&s;able.</P>
<P N="7">7 Though it be be&s;towed <HI>gratis,</HI> yet it is valu|able, for which it is a benefit to advance a friend, and for being injured therein wee &s;hall recover damages.</P>
</DIV2>
<DIV2 N="5" TYPE="lecture">
<PB N="24" REF="16">
<HEAD>LECT. 5.</HEAD>
<HEAD TYPE="sub">The word Right, and the word Advow&s;on ex|plained, and to what Inheritance an Advow|&s;on may bee appendant originally.</HEAD>
<P>_IT re&s;teth at this pre&s;ent, for the more ample explication of this word <HI>Right,</HI> (whereas in defining an <HI>Advow&s;on,</HI> wee &s;ay it maketh a Right) to &s;et forth the divi&s;ions of <HI>Advow&s;ons,</HI> and to pro&s;ecute euery part deuided with a full Di&s;cour&s;e; that thereby, what manner of right and inheritance an <HI>Advow&s;on</HI> is, may be the bet|ter perceived.</P>
<P><HI>Advow&s;ons</HI> therefore, are either appendant or in gro&s;&s;e, or part appendant part in gro&s;&s;e.</P>
<P>An <HI>Advow&s;on</HI> appendant, is a right of Patro|nage, appertaining to &s;ome corporall Inheri|tance; &s;o that, hee that hath the &s;ame Inheri|tance, is thereby al&s;o intituled to haue the other as annexed to the &s;ame; For an <HI>Advow&s;on</HI><NOTE PLACE="marg">33 H. 6. 4. Lit. 20, E. 4, 15, a. 8. H. 7. 4. b.</NOTE> pa&s;&s;eth alwayes with the Inheritance, to which it is appendant; vnle&s;&s;e, there bee expre&s;&s;e no|mination onely by the&s;e words (<HI>Vna cum perti|nentiis,</HI>) except it be in ca&s;e of the King, where the Statute <HI>Deprerogatiua Regis, cap.</HI> 15. pro|videth expre&s;&s;e words to make the &s;ame to pa&s;&s;e.</P>
<P>The originall of <HI>Advow&s;ons</HI> appendant to the
<PB N="25" REF="16"> beginning mu&s;t be in this manner, &s;ithence Pa|tronages were wonne and gotten as before hath beene delared; and that either <HI>ratione fundati|onis</HI><NOTE PLACE="marg">Com. 161. a</NOTE> <HI>dotationis</HI> or <HI>fundi,</HI> were (as it &s;eemeth by all conformity of rea&s;on) the originall foundati|ons of Advow&s;ons appendant; for when Man|nors were created, either the Land upon which the Church was built was land parcell of the Mannor, or honor to which it is appendant, and hee that was Donor thereof gave the &s;ame to build the Church upon, and that the <HI>Advow&s;on</HI> of the &s;ame Church &s;o built, &s;hould bee appen|dant to the &s;ame Mannour, which is <HI>ratione</HI><NOTE PLACE="marg">5. H. 7, 6.</NOTE> <HI>fundi.</HI></P>
<P>Or hee that was owner of the &s;ame Mannor or of any &s;uch corporall Inheritance, endowed the &s;ame Church with parcell of the land of the &s;ame Mannor, honour, or &s;uch like corporall In|heritance, and gave the &s;ame to the Gleebe, of &s;uch Church upon which the <HI>Advow&s;on</HI> by or|dinance of the Ordinary, and by the con&s;ent and agreement of all others, who&s;e con&s;ents were re|qui&s;ite in this behalfe, was at the beginning ap|poynted to be appendant to &s;uch Mannor, Ho|nour, or other corporall Inheritance, in recom|pence of &s;uch livelyhood, and dotation be&s;tow|ed upon the Church.</P>
<P>And hereof it en&s;ueth, that if at any time the<NOTE PLACE="marg">5. H. 7. 37. a. 13, a. 11. E. 4. 11. v. 20. E, 4. 15. b.</NOTE> Church bee di&s;&s;olved, the Gleebe and land upon which the Church was built, &s;hall returne and
<PB N="26" REF="17"> e&s;cheate to him or them from whom it was de|rived and deduced.</P>
<P>And in like ca&s;e, upon the di&s;&s;olution of an<NOTE PLACE="marg">Fitzh. 33. k.</NOTE> Abbey, the &s;ame &s;hal not returne to the founder of common right, unle&s;&s;e &s;ome other ordinance be made to encounter the &s;ame.</P>
<P N="1">1 Therefore to avoyd confu&s;ion in the con|&s;ideration of <HI>Advow&s;ons</HI> appendant; let us fir&s;t &s;ee, to what &s;ort of Inheritance <HI>Advow&s;ons</HI> may be properly appendant.</P>
<P N="2">2 Secondly, in what manner it is appendant, (that is) if it bee part or parcell of the inheri|tance to which it is appendant, or if as accident or nece&s;&s;ary thereunto.</P>
<P N="3">3 How it may be &s;evered from his principall; and againe, by what meanes it may be thereunto recontinued againe.</P>
<P>As to the fir&s;t, it may bee appendant properly <MILESTONE N="1"> and originally, to things that are onely Inheri|tances corporall, that are compound: As to an<NOTE PLACE="marg">Com. 170. 5.</NOTE> Honour, Earledome, ot &s;uch like; likewi&s;e to a Ca&s;tle, more u&s;ually to a Mannor; all which<NOTE PLACE="marg">10. H. 7. 19.</NOTE> principall things, that is to &s;ay the Earledome, Honour, Ca&s;tle, and Mannor, &amp;c. are inheritan|ces compound, made and combined of divers things, and in nature different, being tho&s;e which the Logicians call <HI>Tota Intigratia.</HI></P>
<P>2 It may bee appendant to an Acre of Land, or to a Me&s;&s;uage, to a Rectory, Par&s;onage, Church, or &s;uch like; And &s;o one Church may
<PB N="27" REF="17"> be appendant to another, of which we &s;hall take occa&s;ion to &s;peake in the Lectures following.</P>
<P>But at this pre&s;ent, let us &s;ee in what &s;ort it may be appendant to a mannor.</P>
<P><HI>Advow&s;on</HI> that lyeth in one Countie, may be<NOTE PLACE="marg">33. H 6. 4. b. lib. ult. 34. E. 3. Quare Imp. Fitzh. 10.</NOTE> appendant to a mannor that lyeth in another Countie; and how two or more <HI>Advow&s;ons</HI> may be appendant to one mannor, may be mani|fe&s;ted thus.</P>
<P>If hee that in ancient time was &s;ei&s;ied of a mannor, that extended &s;o large as it was divi|ded into divers pari&s;hes, the Lord of the &s;ame mannor, either gave out of the &s;ame mannor land to build, or to endow everie of the Chur|ches, and &s;o everie of them might bee appendant to the &s;ame mannor.</P>
<P>How one <HI>Advow&s;on</HI> may bee appendant to two mannors, may likewi&s;e thus appeare.</P>
<P>Suppo&s;e that <HI>A.</HI> bee &s;ei&s;ed of an <HI>Advow&s;on</HI> of the Church of <HI>Dale,</HI> as appendant to the mannor of <HI>Sale,</HI> and that both tho&s;e Churches by the Ordinarie, and by the con&s;ent of both<NOTE PLACE="marg">9. E. 6. 5. 9. b. 20. Dyer.</NOTE> the Patrons bee united, and called the Church of <HI>Dale,</HI> and ordained that the Patrons &s;hall pre&s;ent by turne for ever; the&s;e Churches by this union and confederation are made one, and &s;o the <HI>Advow&s;on</HI> entire, and no moities as is be|tweene Coperceners, Joyntenants, and Tenants in common; and therefore it is appendant to both Mannors, for the Patrons &s;everally pre&s;en|ting,
<PB N="28" REF="18"> &s;hall pre&s;ent to the &s;ame Church as appen|dant to both Mannors, (that is to &s;ay) the one &s;hall pre&s;ent &s;everally to the Church as to his Mannour of <HI>Dale,</HI> and the other al&s;o &s;hall pre&s;ent thereto when his turne commeth, as appendant to the Mannour of <HI>Sale.</HI></P>
<P>Yet &s;ome are of opinion, and &s;ome authori|ties<NOTE PLACE="marg">14. H. 6. 2<GAP DESC="illegible" REASON="faint" EXTENT="1 letter">. b. Fitzh. 39.</NOTE> there are, that each of the &s;ame patrons after the &s;ame union, is &s;ei&s;ied <HI>De medietate Advoca|tionis Eccle&s;iae.</HI></P>
<P>And in what manner &s;oever the &s;ame <HI>Advow&s;on</HI> be entire, yet is the Par&s;ons intere&s;t &s;everall; For if &s;uch Incumbent, which is pre&s;ented after &s;uch union made, grant a rent charge out of the Gleebe, and one of the Patrons onely confirme, no Di&s;tre&s;&s;e (after the death of the Incumbent that granted the rent) can bee taken upon the Gleebe, that belongeth to the Gleebe of the o|ther Patron, to make the &s;ame &s;ubject to the charge in perpetuitie; for that, that hee confir|med not.</P>
<P>But if the Mannor of <HI>Dale</HI> bee holden of the<NOTE PLACE="marg">32. H. 6. 64. b.</NOTE> Mannor of <HI>Sale,</HI> and to the Mannor of <HI>Dale</HI> is an <HI>Advow&s;on</HI> appendant, and that the Mannour of <HI>Dale</HI> hath e&s;cheated to the Mannour of <HI>Sale,</HI> &s;o that the Demeanes of the one is become par|cell of the Demeanes of the other; yet the <HI>Ad|vow&s;on</HI> &s;hall bee &s;till &s;aid appendant to the Man|nor of <HI>Dale,</HI> as it was at the fir&s;t; and the Man|nor of <HI>Dale</HI> &s;hall continue &s;till in reputation a
<PB N="29" REF="18"> Mannor, in re&s;pect of &s;uch things as are appen|dant thereunto.</P>
<P>The moytie of an <HI>Advow&s;on</HI> may bee appen|dant<NOTE PLACE="marg">33. H. 6. 11, 12. a.</NOTE> to a Mannor, or parcell of a Mannor.</P>
<P>Al&s;o, in the pleading of a ca&s;e in <HI>Edw.</HI> 6. by<NOTE PLACE="marg">6. E. 6. 74. b. 44. Dyer.</NOTE> <HI>Dyer,</HI> it appeareth that one fourth part of an Advow&s;on was alleaged to be appendant to the one moitie of a Mannor, and another fourth part of the &s;ame Advow&s;on was appendant to the other moitie af the &s;ame Mannor, and the other two parts were in gro&s;&s;e: yet neverthele&s;&s;e, an Advow&s;on (in everie &s;uch or the like ca&s;es) can|not be &s;aid to be divided properly, for that, that it is entire, if you re&s;pect the pre&s;entation, and not the right of patronage. For if a man hath an Advow&s;on, and giveth one part thereof to <HI>A.</HI> and the other part to <HI>B.</HI> &amp; one third parr to <HI>C.</HI> yet the Advow&s;on remaineth entire among&s;t them, and if any of them di&s;turb his companions, they are without remedy, for that they ought to joyn in a <HI>Quare Impedit,</HI> becau&s;e the pre&s;entation is a par&s;onall thing, and entire, wherein they ought to agree, but &s;eeke how they can &s;ever in the&s;e cau&s;es in a writ of Advow&s;on.</P>
<P>Moreover, as touching the right of patro|nage, if one bring a writ of right of Advow&s;on, and the tenant pleadeth that the demandant is &s;ei&s;ied of one &s;ixth part, or of &s;ome one part of the Advow&s;on, the entire writ &s;hall abate, not|with&s;tanding if it be in bar but for parcell, be|cau&s;e
<PB N="30" REF="19"> the Advow&s;on is entire, and not &s;everall, by rea&s;on wherof the demandant cannot abridge his demand.</P>
<P>And as in the ca&s;es afore&s;aid it hath appeared,<NOTE PLACE="marg">18. E. 3. 15.</NOTE> that an Advow&s;on of a Church may bee ap|pendant to a Mannor, in like manner may the Advow&s;on of a Priorie bee appendant to a Mannor.</P>
</DIV2>
<DIV2 N="6" TYPE="lecture">
<HEAD>LECT. 6.</HEAD>
<HEAD TYPE="sub">To what things an Advow&s;on may bee appendant &s;econdarily.</HEAD>
<P>_IN the Lectures afore&s;aid, was &s;hewed to what &s;ort of Inheritances an <HI>Advow&s;on</HI> may be appendant ori|ginally; Now it remaineth to &s;hew to what things it may bee appendant &s;econda|rily.</P>
<P>An <HI>Advow&s;on</HI> therefore cannot bee appen|dant<NOTE PLACE="marg">41. H. 4. Fitzh. 88. 33. H. 6. 5. a. fine.</NOTE> to one acre of land, or two acres, but only to &s;uch parcels of land as have beene parcell of a mannor, or parcell of any Earldome, Ca&s;tle, or &s;uch like Inheritance, to which an <HI>Advow&s;on</HI> may bee appendant originally; But in what or|der the &s;ame may bee appendant to one acre,<NOTE PLACE="marg">5. H. 6. 10. a. Fitzh. feof|ments and feof. 115.</NOTE> let us con&s;ider; &s;ome bee of opinion, that if a man bee &s;ei&s;ied of a mannor to which an <HI>Ad|vow&s;on</HI> is appendant, giveth certaine acres of
<PB N="31" REF="19"> the &s;ame Mannor, <HI>una cum Advocatione</HI> to ano|ther, in &s;uch ca&s;e the <HI>Advow&s;on</HI> &s;hall not pa&s;&s;e, to the grantee, unle&s;&s;e the &s;ame be by Deed, and &s;o the &s;ame &s;hall bee appendant to the &s;ame acres.</P>
<P>So likewi&s;e, &s;ome hold opinion, that if a man<NOTE PLACE="marg">17. E. 3. 45. 18. 19. 21. 22. E. 3 6. b 7. a. Thorpe.</NOTE> be &s;ei&s;ied of a Mannor, to which an <HI>Advow&s;on</HI> is appendant in right of his wife or joyntly with his wife, and maketh a feofement in fee of cer|taine acres parcell of the demeanes of the &s;ame Mannor <HI>una cum Advocatione,</HI> and dyeth; that the wife notwith&s;tanding this, may pre&s;ent to the <HI>Advow&s;on,</HI> before &s;he recontinue the &s;ame acres, by <HI>Cui in vita;</HI> becau&s;e as (they thinke) the &s;ame <HI>Advow&s;on</HI> is not appendant to the &s;ame acres, and &s;uch alienation is not but during the life of the hu&s;band.</P>
<P>Neverthele&s;&s;e, I doe not perceive any great<NOTE PLACE="marg">Fitzh. 3 2, a.</NOTE> rea&s;on, why the Law &s;hould be &s;o in &s;uch a ca&s;e; for if a Tenant in tayle of a Mannor, to which an <HI>Advow&s;on</HI> is appendant <HI>aliene</HI> &s;ome of the &s;ame acres parcell of the Mannor, together with the <HI>Advow&s;on,</HI> although it bee without Deed, not|with&s;tanding it is appendant to the Acres, and cannot be recontinued but by Formedon to bee<NOTE PLACE="marg">43. E. 3. 26. b. or v. Thorpe.</NOTE> brought for the &s;ame acres, which ca&s;e in rea&s;on, being like to the Formedon of the acres and <HI>Advow&s;on</HI> aliened by the hu&s;band, I know not any difference of Law that &s;hould bee be|tweene them; and therefore if a man bee &s;ei&s;ied of a Mannor to which an <HI>Advow&s;on</HI> is appen|dant
<PB N="32" REF="20"> and make a lea&s;e for life of the &s;ame Man|nor, <HI>una cum advocatione,</HI> if the le&s;&s;or enter into<NOTE PLACE="marg">17. E. 5. Mombray.</NOTE> the &s;ame Acre of land for forfeiture, he hath re|continued the <HI>Advow&s;on,</HI> as appendant to the &s;ame Acre.</P>
<P>An <HI>Advow&s;on</HI> cannot originally bee appen|dant<NOTE PLACE="marg">Com. 170. b. 16. H. 7, 13. b. &amp; 9. b.</NOTE> to a Me&s;&s;uage, but &s;econdarily it may; therefore if an <HI>Advow&s;on</HI> be appendant to a par|cell of land, which was &s;ometimes part of the deme&s;nes of a Mannor, and &s;uch like, if a Me&s;&s;u|age be built upon the &s;ame parcell of Land, the <HI>Advow&s;on</HI> &s;hall be appendant to the &s;ame Me&s;|&s;uage, and if the &s;ame Me&s;&s;uage fall or bee pulled downe, the &s;ame <HI>Advow&s;on</HI> &s;hall bee againe appendant to the Soyle, as it was before.</P>
<P>So likewi&s;e, an <HI>Advow&s;on</HI> may by a &s;econda|ry<NOTE PLACE="marg">17. E. 3. 51. a 30. E. 4. 6. b. 11. H. 6. 32. b</NOTE> meanes be appendant to a Rectory, for Vica|ridges being not fir&s;t erected (in as much as the Sub&s;titute cannot bee before the principall) but<NOTE PLACE="marg"><HI>5. E, 2. Qu. Imp. 165. &amp; 178. 7. E. 3. 12. a. 51. a. 16. E. 3. m. d. fait. 11. 6. 5. E. 3. 26. b. 11. H.</HI> 6, &s;&s; 8 <HI>b, 31. H. 6. 14. a. Fitzh. 33. v. t. 34. &amp; 35. f.</HI></NOTE> all at the beginning were par&s;onages, of the which Vicarages were derived, and that for the mo&s;t part, by the rea&s;on of many Impropriati|ons of Benefices, to the hou&s;es of Religion, and Spiritual corporations, which were not of them|&s;elves in all poynts fit for the function and cure of &s;oules.</P>
<P>The rea&s;on is, becau&s;e that the <HI>Advow&s;on</HI> of a Vicarage &s;hould bee alwayes appendant to the Rectory of a par&s;onage, &s;o that hee that
<PB N="33" REF="20"> is Par&s;on, or <HI>Per&s;ona imper&s;ona,</HI> (as they call him) of this Church, is of common right Patron of the Vicaridge, of the &s;ame Church; except, &s;ome other &s;euerall ordinance at the beginning of the endowment of the &s;ame Vicaridge were made to the contrary.</P>
<P>And therefore, by the Graunt of a par&s;onage<NOTE PLACE="marg">2. E. 3. Grants, 89. &amp; 56. Dyer. 35, 7. E. 4. 61. a, 75, a:</NOTE> wtih all the hereditaments thereto belonging, the <HI>Advow&s;on</HI> of a Vicaridge pa&s;&s;eth too the Grantee.</P>
<P>In the &s;ame manner it &s;hould be, if the Vi|caridge were endowed, &s;o there be a par&s;on<NOTE PLACE="marg">11. H. 6. 18 a. &amp; 32. b. 17. E. 3. 51. a</NOTE> and a Vicar both pre&s;ented into one Church, as by the Law there may well be; but if the Vica|ridge become voyd, and he that is Par&s;on ha|uing the <HI>Advow&s;on</HI> of the Vicaridge (as of com|mon right hee ought) pre&s;ent one too the &s;ame Vicaridge by the name of par&s;on,<NOTE PLACE="marg">11. H, 6. 18 &amp; 32. b.</NOTE> who is admitted and in&s;tituted accordingly, by &s;uch pre&s;entation hath the &s;ame Vicaridge lo&s;t the afore&s;aid name, and is becommed a Par|&s;onage, <HI>tamen quere</HI> if the fir&s;t Par&s;onage re|maine,<NOTE PLACE="marg">11, H. 6. 18 &amp; 22.</NOTE> and if one of tho&s;e par&s;onages (if they both continue) be appendant to the other; but it &s;eemeth by the Booke of 11. <HI>H.</HI> 6. that there &s;hould be but one par&s;onage, and the Vica|ridge extinct.</P>
<P>An <HI>Advow&s;on</HI> of a Church or Chappell,<NOTE PLACE="marg">8, H. 7. 16 Com. 169. b</NOTE> cannot originally bee appendant to another Church or Chappell; for that, that things of
<PB N="34" REF="21"> one nature cannot be originall appendant each to other. But notwith&s;tanding, &s;econdarily the <HI>Advow&s;on</HI> of a Church or Chappell may bee ap|pendant to another Church or Chappell.</P>
<P>As if the <HI>Advow&s;on</HI> of a Church or Chappell<NOTE PLACE="marg">43, E, 3. 3<GAP DESC="illegible" REASON="faint" EXTENT="1 letter"> a. Fitzh. Qu. Imp. 13</NOTE> bee appendant to one acre of Land, that was &s;ometimes parcell of a Mannor, or &s;uch like; and after a Church or Chappell be built vpon it, the la&s;t new erected Church &s;hall bee appendant to the afore&s;aid Church.</P>
<P>An <HI>Advow&s;on</HI> may be amortified to a Church<NOTE PLACE="marg">22. E. 3. Fitzh. ayd le Roy, 103.</NOTE> or Chappell, and if it be recouered and lo&s;t by Default, the Par&s;on thereof may haue a Writ of right.</P>
<P>And an <HI>Advow&s;on</HI> may be parcell and part of a Deanerie, and if the &s;ame bee in any free-Chappell<NOTE PLACE="marg">Ibid. Fitzh. 103.</NOTE> of the King, if the Deane be implea|ded, he may of this haue ayd of the King. And thus much concerning Inheritances, to which an <HI>Advow&s;on</HI> may be appendant.</P>
</DIV2>
<DIV2 N="7" TYPE="lecture">
<PB N="35" REF="21">
<HEAD>LECT, 7.</HEAD>
<HEAD TYPE="sub">In what manner Advow&s;ons are appendant to a Mannor.</HEAD>
<P>_NOw it re&s;teth, that I determine in what manner <HI>Advow&s;ons</HI> are ap|pendant. And fir&s;t of all, if the <HI>Ad|vow&s;on</HI> <MILESTONE N="1"> be part or parcell of the In|heritance, to which it it is appendant and whe|ther it bee onely accident or incident there|unto.</P>
<P>Secondly, if an <HI>Advow&s;on</HI> be appendant too a <MILESTONE N="2"> Mannor, that con&s;i&s;teth of Demeanes and &s;ervi|ces, in re&s;pect both of the demeanes and &s;erui|ces, or if it &s;hall be &s;aid appendant to a Mannor in re&s;pect onely of the Deme&s;nes, in as much as the Deme&s;nes are one corporall Inheri|tance, and &s;uch part of the Mannor as onely ly|eth in manuell occupation.</P>
<P>1 As concerning the fir&s;t, the Authorities of our Bookes are diuer&s;ly deuided; &s;ome tending to one effect and &s;ome to another, our be&s;t cour&s;e therefore is to con&s;ider the Arguments, and to giue cen&s;ure with that which &s;eemeth mo&s;t agreeable with Law. Some hold that an <HI>Advow&s;on</HI> appendant to a Mannor and the like, is eyther part or parcell of a Mannor, Honour, &amp;c. or other Inheritance to which it is appen|dant.
<PB N="36" REF="22"> And they ground them&s;elues upon the au|thorities of 43 <HI>R. 3. 22. a. b.</HI> where iit was adjudg|ed that the graunt that King <HI>H.</HI> the 3. made to <HI>The|nel</HI><NOTE PLACE="marg">Ratio. 1.</NOTE> <HI>Mar&s;hall</HI> of a Mannor, to which an <HI>Advow|&s;on</HI> was appendant, without the&s;e words (<HI>cum per|tinentiis</HI>) and without any mention of the <HI>Ad|vow&s;on;</HI> yet notwith&s;tanding, the <HI>Advow&s;on</HI> pa&s;&s;ed in ca&s;e of the King before the &s;tatute of <HI>Praerogativa Regis, Cap.</HI> 15. And &s;o likewi&s;e it is in the ca&s;e of a common par&s;on at this day, although in the 8 <HI>H.</HI> 7. 4 &amp; the opinion of &s;ome others, in the 5 <HI>H. 7. 38. b.</HI> be again&s;t it, upon which they inferre; that an <HI>Advow&s;on</HI> is parcell<NOTE PLACE="marg">22. H 6. 33 lib. fund leg. 70</NOTE> of a Mannor, for &s;o expre&s;&s;ely is the opinion of others in the &s;ame booke of 5. <HI>H. 7. 38. b.</HI></P>
<P>Secondly, in the 9, <HI>H. 6. 28. b.</HI> and in the 38.<NOTE PLACE="marg">2. Ratio. 2.</NOTE> <HI>H. 6., 33. a.</HI> in the Abbeyes of Scyons ca&s;e, the difference is agreed for Law, that if the King be &s;ei&s;ied of a Mannor to which an <HI>Advow&s;on</HI> is appendant, and granteth the &s;ame Mannor, and<NOTE PLACE="marg">9. H. 6. 28, or 8. b.</NOTE> in the grant the words of the Pattent are <HI>dedimus &amp; conce&s;&s;imus,</HI> the Mannor of <HI>D.</HI> expre&s;&s;ing not the <HI>Advow&s;on</HI> in the clau&s;e of the grant; if after|ward in the <HI>habendum</HI> there bee, <HI>habendum cum advocatione</HI> of the Church of <HI>D.</HI> the <HI>Advow&s;on</HI> pa&s;&s;eth by &s;uch grant, although it be not com|prehended<NOTE PLACE="marg">38. H. 6. 33 a, 39. b.</NOTE> in the clau&s;e of the grant; but if the King grant the Mannor of <HI>D.</HI> to which no <HI>Ad|vow&s;on</HI> is appendant <HI>habendum cum aduocatione Eccle&s;iae de S.</HI> this <HI>Advow&s;on</HI> pa&s;&s;eth not; for
<PB N="37" REF="22"> that, that it is mentioned after the grant, the rea|&s;on of which difference they thinke to bee, be|cau&s;e in the fir&s;t ca&s;e, the afore&s;aid <HI>Advow&s;on</HI> appendant is parcell of the Mannor, which is not &s;o in the la&s;t ca&s;e in the 8. <HI>H. 7. 3. b.</HI> and likewi&s;e in the 10. <HI>H. 7. 19. a.</HI> it is &s;aid, that an <HI>Ad|vow&s;on</HI> appendant is a compound thing, to the compo&s;ition whereof, divers things are requi|&s;ite, all which things com mixt, make the Man|nor and euery of them is parcell thereof, for as Rent cannot be Land, &s;o Land cannot bee an Advow&s;on <HI>nec &egrave; conver&s;o,</HI> yet euery of the&s;e<NOTE PLACE="marg"><HI>10, H. 7. 19 a,</HI> Keeble.</NOTE> things of diuers natures, make the Mannor, and are part of the Mannor, &s;aith <HI>Keeble.</HI></P>
<P>And if a man demand a Mannor by his Writ<NOTE PLACE="marg">Ratio. 3.</NOTE> and an Advow&s;on is appendant thereunto, hee ought to make an exception of the Advow&s;on, which &s;eemeth to prove that an Advow&s;on is parcell of a Mannor, vpon the other part tho&s;e which affirme that an <HI>Advow&s;on</HI> is not parcell, but onely appendant to the Mannor, denyeth that an Advow&s;on lyeth in Tenure; for that, that only the principall thing is holden, and not the thing appendant to &s;uch principall; As<NOTE PLACE="marg">5 H. 7. 36, a &amp; 38. a</NOTE> Leates, Courts, E&s;treates, Wayfes, and the like, for (&s;aid they) if an <HI>Advow&s;on</HI> appennant be by grant &s;euered from the Mannor, it is holden by &s;uch and the &s;ame &s;eruices as it was holden by before, for that, that if the <HI>Advow&s;on</HI> be &s;eue|red it &s;hould be holden <HI>pro perticula,</HI> the~ the Ser|vices
<PB N="38" REF="23"> &s;hould be encrea&s;ed, and &s;o double Servi|ces &s;hould be due for one thing, for &s;o he &s;hould haue the entyre &s;eruices for the Mannor, and al&s;o Service for the <HI>Advow&s;on</HI> beeing &s;euered, which is repugnant to rea&s;on.</P>
<P>In this variety of opinions; I thinke it were mo&s;t conformable to rea&s;on, to &s;ay that an <HI>Ad|vow&s;on</HI> is not part nor parcell of a Mannor, but rather appendant to a Mannor, for the better entendment whereof, the Law of <HI>England</HI> cal|leth tho&s;e &s;orts of Inheritances which were an|nexed to others, and what the Logicians call <HI>Adjuncta,</HI> by the&s;e names, that is to &s;ay; Inci|dents,<NOTE PLACE="marg">4. E. 4, 36, b.</NOTE> appurtenants, appendants, and regar|dants, of which termes of Law (<HI>Regardant</HI>) is propperly of <HI>Villeines,</HI> and the word (<HI>Ap|pendant</HI>) of a Common or an <HI>Advow&s;on;</HI> of which two an Advow&s;an is &s;eparable, but a common appendant is not in any ca&s;e &s;eparable,<NOTE PLACE="marg">Lit. 184.</NOTE> for none can haue common appendant, but hee onely that hath the Land to which the common<NOTE PLACE="marg">9. E. 4, 39. b 5, H. 7.</NOTE> appendant is appendant. The other two words <HI>Incidents</HI> and <HI>Appurtenances,</HI> may generally be affirmed of all tho&s;e &s;orts of Inheritances that may in any manner be annexed to other things, for &s;o a Mannor with his appurtentnces,<NOTE PLACE="marg">5. H., 7. 4. b</NOTE> may be intended of Advow&s;ons, Commons, Villeines, Waifes, E&s;trayes, and the like, which are &s;aid to be Appurtenances to a Mannor, like|wi&s;e the word <HI>Appurtenant</HI> may be applyed to a
<PB N="39" REF="23"> Court, Me&s;&s;uage, or Gardein, that are &s;aid to be appurtenant to the Me&s;&s;uage, the word inci|dent<NOTE PLACE="marg">21 E. 4. 32. b 19: A&s;&s; 10</NOTE> properly &s;ignifieth tho&s;e things annexed which are not knowne by the precedent names<NOTE PLACE="marg">8. H. 7. 6. 1. E. 4 10, a. 18 H. 7 12, b 11, H. 6. 81 21. a&s;&s;. 53</NOTE> of appurtenants or appendants, and yet are not|with&s;tanding annexed to other Inheritances, and in &s;uch &s;ort a Court-baron is incident to a Mannor, a Court of Pipowders to a faire, fealtie to Homage, homage to E&s;cuage; &s;o likewi&s;e<NOTE PLACE="marg">Br. incid. 34</NOTE> a <HI>Corrody</HI> is incident to a Founder&s;hip; and a gaine, of tho&s;e &s;ome are &s;euerable, as the Cor|rodie from the Founder&s;hip, &s;ome are in &s;eue|rable, as the Court-barron from the Mannor, except onely in ca&s;e of the King, who hath pow|er<NOTE PLACE="marg">12. E. 288.</NOTE> to &s;euer them. But that is called a part or par|cell, which is a portion, and required to &s;ome compo&s;ition of entyre and compound things, as the Demeanes and &s;ervices are part of a Man|nor, the Gleebe and the Tythes are part of the Rectory, &s;o that the&s;e are not to be called Inci|dent, Appendants, Appurtenances, but parts and portions of the&s;e compound things, of which they are &s;aid to be part, parcell, or portions, and are required nece&s;&s;arily, to the framing of &s;uch entyre thing, of which they are parts and porti|ons, &amp; hereof it followeth that an <HI>Avowfon</HI> ap|pendant is not any part, parcell or portion of a Mannor, no more then a common is part of that thing to which it is appendant, &s;o that the word it &s;elfe of an <HI>Advow&s;on</HI> appendant is &s;ufficient
<PB N="40" REF="24"> to &s;et forth and declare the &s;ame, to bee no part but appendant onely, as the words importeth.</P>
<P>Wherefore the fir&s;t rea&s;on of the aduer&s;e part<NOTE PLACE="marg">1. Rea&s;on An&s;wered.</NOTE> may thus be an&s;wered. The Bookes before men|tioned namely, 43. <HI>E. 3. 22. a. 45. E. 3. 12, b. 22. H. 6. 33. a.</HI> which are to this effect, that an <HI>Advow|&s;on</HI> appendant may pa&s;&s;e by the grant of a Man|nor without &s;aying (<HI>cum pertinentiis</HI>) in the ca&s;e of a common Par&s;on, and &s;o likewi&s;e in the ca&s;e of the King before the Statute of <HI>prerogati|ua regis,</HI> proueth not that an <HI>Advow&s;on</HI> is part or parcell of a Mannor, for this being a thing ap|pendant may a&s;well pa&s;&s;e with the words (<HI>cum pertinentiis</HI>) as the things that are parts or por|tions of the &s;ame entire thing pa&s;&s;eth.</P>
<P>For if a man grant common of E&s;touers to<NOTE PLACE="marg"><HI>Fitsh.</HI> 1. 8<GAP DESC="illegible" REASON="faint" EXTENT="1 letter"></NOTE> be burnt in &s;uch a Mannor, of the grantee by the grant of the Mannor, this common pa&s;&s;eth, without the words <HI>cum pertinentiis</HI> for by the feofment made of the Mannor without deede, all appurtenances pa&s;&s;e by <HI>Finchdens</HI> opinion,<NOTE PLACE="marg">44, E, 3, bre, 581,</NOTE> as <HI>Fitzh.</HI> abridgeth it, although it be not in the report at large, and for the argument of tho&s;e in the time of <HI>Hen.</HI> the 7. before remembred, wee<NOTE PLACE="marg">5, H, 7, 37 b,</NOTE> &s;ay for that, that an <HI>Advow&s;on</HI> appendant pa&s;&s;eth by the grant of the Mannor it is no good con&s;e|quence, for the rea&s;on afore&s;aid.</P>
<P>The &s;econd rea&s;on an&s;wereth the difference<NOTE PLACE="marg">9, H, 6, 28, b, 33, H, 6, 39.</NOTE> in <HI>H.</HI> 6. where the <HI>Advow&s;on</HI> is granted before the <HI>habendum</HI> and where not, that it is not any
<PB N="41" REF="24"> proofe that the Advow&s;on appendant is parcell of the Mannor, for <HI>Pry&s;ot</HI> &s;aith, that things in<NOTE PLACE="marg">38. H. 6. 38. a.</NOTE> gro&s;&s;e or &s;everall being named after the <HI>haben|dum,</HI> cannot pa&s;&s;e with the fir&s;t things &s;pecified in the clau&s;e of the Grant, but things appendant or appurtenant to the premi&s;&s;es of the Grant may very well pa&s;&s;e; although the appurtenants be &s;pecified after the <HI>habendum.</HI></P>
<P>As concerning the exception of an <HI>Advow&s;on</HI><NOTE PLACE="marg">3 Rea&s;on An&s;wered.</NOTE> appendant to be made in the Demand of a Man|nor, the &s;ame is not any proofe, that the <HI>Advow|&s;on</HI> is part of the Mannor, for the opinion of<NOTE PLACE="marg">19. E. 3. Fitzh. br. 884. Regi&s;t. 228. br. incid. 38</NOTE> <HI>Stone</HI> is, that by the Deme&s;nes of a Mannor, or by the Deme&s;nes of the moity of a Mannor, (as the ca&s;e is there) without the words (<HI>cum perti|nentiis</HI>) the Advow&s;on appendant cannot bee recovered.</P>
</DIV2>
<DIV2 N="8" TYPE="lecture">
<HEAD>LECT. 8.</HEAD>
<HEAD TYPE="sub">If an Advow&s;on appendant that con&s;i&s;ts of De|me&s;nes and Services, &s;hall be appendant in re|&s;pect of the Deme&s;nes onely, or in re&s;pect of the Deme&s;nes and Services.</HEAD>
<P>_AT this pre&s;ent it remaineth, to de|termine, if an <HI>Advow&s;on</HI> appen|dant to a Mannor is appendant, in re&s;pect that it con&s;i&s;teth of Deme&s;nes and Services; or if it &s;hall bee appendant to a
<PB N="42" REF="25"> Mannor, in re&s;pect of the Deme&s;nes onely, in as much as the Deme&s;nes are one corpo|rall Inheritance, and &s;uch part of the man|nour, as onely lyeth in manuell Occupa|tion.</P>
<P>This que&s;tion was of late time largely di&s;pu|ted, and at the la&s;t, upon grand deliberation lear|nedly determined, in the <HI>Common Pleas,</HI> in a <HI>Qua|re Impedit,</HI> betweene <HI>Gyles Long</HI> Plaintiffe, and one <HI>Hening</HI> Patron, the Bi&s;hop of <HI>Gloce&s;ter</HI> as Ordinarie, and <HI>Hadler</HI> as Clarke, and the &s;ame is there among the Rolles of <HI>Pa&s;che 31. El. Rot.</HI><NOTE PLACE="marg">P. 39. 39. Eliz. Rot. 2024. Longs ca&s;e, in Com. bank.</NOTE> 2024. which I have &s;et here nece&s;&s;arily in briefe, and being thus.</P>
<P>A Feofement in Fee was made of the mannor of <HI>Frembillet,</HI> and the Advow&s;on thereto be|longing, and Livery of Sei&s;in was made in the Deme&s;nes, in <HI>anno 7. El.</HI> and after in <HI>anno</HI> 17. of her Reigne the Advow&s;on was granted to one <HI>Ranger,</HI> and after in the 25. <HI>El.</HI> one <HI>Boyter</HI> being tenant of the &s;ame Mannor attorned to the Feoffee, then the Church became voyde, and if the Feoffee or the Grantee &s;hould pre|&s;ent was the que&s;tion, for the better entendment whereof, we will fir&s;t &s;ee what can bee &s;aid upon both parts.</P>
<P>That it is appendant onely in re&s;pect of the Deme&s;nes, tho&s;e or the like authorities or rea|&s;ons may be produced.</P>
<PB N="43" REF="25">
<P>It is &s;aid, that an Advow&s;on appendant to a<NOTE PLACE="marg">5 E. 6. 70. Pl. 41. Dyer</NOTE> Mannor, cannot be appendant to a Rent, or Ser|vice of the &s;ame Mannor, but onely to the De|me&s;nes, whereof onely if a man hath a Mannor to which an Advow&s;on is appendant, and granteth the Deme&s;nes <HI>cum pertinentiis,</HI> the Advow&s;on pa&s;&s;e appendant thereunto; &s;o like|wi&s;e, if he grant the Deme&s;nes, excepting the Advow&s;on, the Advow&s;on is now becommed in gro&s;&s;e.</P>
<P>If a man &s;hould have a Mannor, and black acre that was holden of the &s;ame Mannor e&s;|cheateth, &s;o that the &s;ame acre is become now parcell of the Deme&s;nes of the &s;ame Mannor, if hee that is &s;o &s;ei&s;ied of the &s;ame Mannor, grant all the Deme&s;nes, excepting black acre, and the &s;ame Advow&s;on, the Advow&s;on is be|come in gro&s;&s;e, and yet it is a Mannor notwith|&s;tanding, for now black acre is onely the De|me&s;nes which together with the other &s;ervices cau&s;e the mannor to continue, neverthele&s;&s;e the <HI>Advow&s;on</HI> is become in gro&s;&s;e, for that, that it was appendant onely to the Deme&s;nes of the mannor, which were aliened, and cannot now bee appendant to black acre: becau&s;e it was never before appendant to the &s;ame, in as much as appendancie is onely granted upon continuance and pre&s;cription, and not upon the &s;ame rea&s;on.</P>
<P>If hee that is &s;ei&s;ie of a Mannor, whereof
<PB N="44" REF="26"> blacke acre is holden, and the &s;ame E&s;cheateth, and he granteth the &s;ame blacke acre, (<HI>una cum Advocatione</HI>) the Advow&s;on pa&s;&s;eth not the ap|pendant to the acre, but in gro&s;&s;e, as afore&s;aid; but if in the two afore&s;aid ca&s;es, a man were &s;ei|&s;ie to a Mannor before the &s;tatute of <HI>We&s;tmin&s;ter</HI> the third, <HI>De quia emptores terrarum;</HI> with an <HI>Advow&s;on</HI> thereto belonging, and give certaine acres parcells of the Deme&s;nes of the &s;ame Man|nor to divers per&s;ons, to bee holden of the &s;ame Mannor, if afterward &s;uch acres e&s;cheate, and the Lord granteth the re&s;idue of the De|me&s;nes excepting the acres &s;o e&s;cheated, and the <HI>Advow&s;on;</HI> the <HI>Advow&s;on</HI> is &s;till appendant to the &s;ame Mannor: becau&s;e it was appendant to the &s;ame Acres, before they were given to be holden of the mannor.</P>
<P>If a man were &s;ei&s;ed of a Mannor to which an <HI>Advow&s;on</HI> is appendant, and before the Sta|tute of <HI>We&s;tmin&s;ter</HI> the third were likewi&s;e &s;o &s;ei&s;ied of other acres of land in gro&s;&s;e, and not parcell of the &s;ame Mannor, if he had given the &s;ame acres of land to divers per&s;ons to bee hol|den of the &s;ame Mannor, (as he might then have done) and after the &s;ame acres of Land e&s;chea|ted, now are they parcell of the Deme&s;nes of the &s;ame Mannour, although they never were &s;o before, &amp; after the Lord of the Mannor gran|ted all the ancient and former Deme&s;nes of the &s;ame Mannor, unle&s;&s;e one acre, this acre and the
<PB N="45" REF="26"> other acres e&s;cheated maketh now the De|me&s;nes of the &s;ame Mannor, and the <HI>Advow|&s;on</HI> appendant, is &s;till appendant to the whole Mannor, but yet it was &s;o appendant in re&s;pect of the one acre, that was parcell of the ancient Deme&s;nes of the &s;ame Mannor, and if the Lord intend at any time to &s;ever this from the Man|nor, and &s;till to keepe it appendant to no acre, but onely to that which was parcell of the Deme&s;nes of the Mannor, all which rea|&s;ons prove that the <HI>Advow&s;on</HI> is appendant more in re&s;pect of the Deme&s;nes than other|wi&s;e.</P>
<P>Of the other part, tho&s;e ca&s;es prove that an <HI>Advow&s;on</HI> appendant to a Mannor is not appen|dant to any part of the mannor, but to the entire|tie, for it is an entire thing; and therefore if a man hath a Mannor to which an <HI>Advow&s;on</HI> is ap|pendant, if he enfeoffe <HI>I. S.</HI> of the &s;ame Mannor, and maketh Liverie of the Deme&s;nes, and before the Attornement of the Tenants, the Church be|comes voyd, the Feoffee &s;hall not pre&s;ent be|cau&s;e he hath not the Mannor to which the Ad|vow&s;on was appendant; but if the tenants after|ward attorne within &s;ix moneths, after the avoy|dance he may very well pre&s;ent thereunto.</P>
<P>So likewi&s;e in the former ca&s;e, if the Feoffor or the E&s;tranger pre&s;ent before the Attornment of the Tenants, yet if afterward Attornment be had within the &s;ix moneths after the avoy|dance,
<PB N="46" REF="27"> the Feoffee may bring and maintaine his <HI>Quare Impedit,</HI> and &s;o recover his pre&s;entation, which proveth that the Advow&s;on is appen|dant to the whole Mannor, as it is entire, and not by rea&s;on of the Deme&s;nes onely, for the determination of the Law is this; It is true that the Advow&s;on in &s;uch ca&s;e is appendant to the entire Mannor, and not to any part thereof, during &s;uch temps, as it remaines a Mannor without alteration, or di&s;-joyning the Advow|&s;on from it; neverthele&s;&s;e, if you will di&s;&s;olve the Mannor and &s;ever the Advow&s;on from it, and yet de&s;ire to have the &s;ame appendant, then it cannot bee appendant to any part of the Man|nor, but onely to &s;uch Lands as were of the an|cient Deme&s;nes of the &s;ame Mannor; where|fore in the fir&s;t ca&s;e Judgement was given, that<NOTE PLACE="marg">Iudgement.</NOTE> after the Attornment had, the Advow&s;on pa&s;|&s;ed to the Feoffee of the Mannor, as appendant to the entire Mannor, and that the Grant made in the meane time betweene the liverie of the Deme&s;nes, and the attornment of the Tenants, was voyd, and that the Advow&s;on pa&s;&s;ed not thereby to the &s;ame Grantee of the Advow&s;on, but is (by the Attornment, by which the &s;ervices pa&s;&s;ed) made appendant to the entiretie in the hands of the Feoffee.</P>
</DIV2>
<DIV2 N="9" TYPE="lecture">
<PB N="47" REF="27">
<HEAD>LECT. 9.</HEAD>
<HEAD TYPE="sub">How an Advow&s;on may be &s;evered from the prin|cipall, and by what meanes it may be reconnexed thereunto againe.</HEAD>
<P>_IN the two la&s;t former Lectures hath beene declared at latge; Fir&s;t, to what kinde of Inheritance an <HI>Ad|vow&s;on</HI> may be properly appendant, and then in what manner it may be appendant: Now remaineth the third thing then treated of, that is to &s;ay, how it may be &s;undred from the principall; and againe, by what meanes it may be thereto annexed by entry or without entry into its principall.</P>
<P>It may be &s;undred either rightfully, or by a rightfull conveiance, of which wee &s;hall &s;peake more at large, when we declare the nature of an <HI>Advow&s;on</HI> in gro&s;&s;e, and of that which is partly in gro&s;&s;e, partly appendant, whether it may bee &s;undred in a wrongfull manner, as by a <HI>tortious act,</HI> that is to &s;ay, by Di&s;&s;ei&s;in of the Mannor, to which it is appendant, or by a wrongfull a&s;|&s;urance as by di&s;continuance, or other wrong|full di&s;po&s;ition thereof. As for u&s;urpation wee &s;hall &s;peake thereof in a place more convenient afterward at large; if therefore a man be di&s;&s;ei&s;ed of a mannor to which an <HI>Advow&s;on</HI> is appen|dant, and the <HI>Advow&s;on</HI> becomes voyd the
<PB N="48" REF="28"> Mannor &s;till remaining in the hands of the Di&s;|&s;ei&s;or, this was ancient Law as <HI>Bracton</HI> &s;aith, that<NOTE PLACE="marg">Bracton. lib. 2. fo. 55. C. 23.</NOTE> he &s;hould not have pre&s;ented to the <HI>Advow&s;on</HI> untill he had recontinued or made his entrie in|to the Mannor, becau&s;e &s;aith hee, <HI>Quod &s;e&s;inam habere non poterit quis de pertinentiis, antiquam acqui&s;eret principale.</HI> But at this day the Law is contrary, &s;o that if a man be &s;ei&s;ie of a Mannor, and the entrie of the Di&s;ei&s;&s;e being lawfull the Advow&s;on becommeth voyd, the Di&s;&s;ei&s;&s;ee may pre&s;ent to the Church, before his entry into his Mannor, but if the Di&s;&s;ei&s;or bee &s;ei&s;ie of a Man|nor by di&s;&s;ei&s;in, to which an Advow&s;on is ap|pendant, and the Church becomes voyd, &s;o that the di&s;&s;ei&s;or pre&s;enteth, whereupon the Clarke is admitted, in&s;tituted, and Inducted, it &s;eemeth that the di&s;&s;ei&s;ee in this ca&s;e &s;hall not have his <HI>Quare Impedit,</HI> to recover his pre&s;entation, un|le&s;&s;e he fir&s;t enter into the Mannor to which the Advow&s;on was appendant, and though hee en|ter, yet he &s;hall be driuen to his action.</P>
<P>Yet if a man be &s;ei&s;ie of a Mannor, to which an <HI>Advow&s;on</HI> is appendant and bee di&s;&s;ei&s;ied of the &s;ame Mannor and the Church becomes void, and the Di&s;&s;ei&s;or pre&s;enteth one that is admit|ted, In&s;tituted, and Inducted, and &s;o continu|eth par&s;on &s;ometime after, if afterward the <HI>Ad|vow&s;on</HI> become voyd, now is not the <HI>Advow&s;on</HI> &s;o gained by &s;uch u&s;urpation, but if that I that was de&s;ei&s;ied enter into the Mannor, I may a|gaine
<PB N="30" REF="28"> pre&s;ent to the <HI>Advow&s;on,</HI> becau&s;e the former u&s;urpation was a meane betweene the di&s;&s;ei&s;in and the re-entrie, by which re-entry the Di&s;&s;ei&s;ors e&s;tate as well in the <HI>Advow&s;on</HI> as in the Mannor, is clearely defeated. But it is other|wi&s;e of an <HI>Advow&s;on</HI> in gro&s;&s;e, in which ca&s;e the Patron &s;hall be driven to his Writ of right, &s;o likewi&s;e if I be &s;ei&s;ie of a mannor, to which an <HI>Advow&s;on</HI> is appendant, and afterward the Church becomes voyd, and I pre&s;ent and be di|&s;turbed, and after I be de&s;ei&s;ied of the Mannor, here I &s;hall bring my <HI>Quare Impedit</HI> and recover my pre&s;entation, before I enter into the &s;ame Mannor.</P>
<P>And &s;o much is &s;aid, where the entrie of him that hath right is lawfull in the principall, but where the entry is not lawfull there he &s;hall not pre&s;ent to the Advow&s;on, unle&s;&s;e recontinuing the principall; and therefore if a man be &s;ei&s;ied of a Mannor to which an <HI>Advow&s;on</HI> is appen|dant, and be di&s;&s;ei&s;ied, if the Di&s;&s;ei&s;or die &s;ei&s;ied, and the Church become voyd, the di&s;&s;ei&s;&s;ee &s;hall not pre&s;ent to the Church, unle&s;&s;e hee fir&s;t reco|ver the Mannor.</P>
<P>If Tenant in tayle be &s;ei&s;ied of a Mannor, to which an <HI>Advow&s;on</HI> is appendant and maketh di&s;continuance of the &s;ame Mannor, and after dyeth, if the Church become voyd the i&s;&s;ue in tayle &s;hall not pre&s;ent thereunto, untill hee hath recovered the Mannor by Formedon to which
<PB N="50" REF="29"> the <HI>Advow&s;on</HI> was appendant.</P>
<P>Likewi&s;e if a man bee &s;ei&s;ied of a Mannor in right of his wife, &amp;c. and both di&s;continueth the Mannor with the <HI>Advow&s;on,</HI> and the Husband dyeth, if afterward the Church become voyd, the wife &s;hall not pre&s;ent untill &s;hee hath recon|tinued the Mannor by <HI>Cui in vita,</HI> but fora&s;much as the Statute of the 30. <HI>H.</HI> 8, 28. giveth in &s;uch ca&s;e power to the wife, or her heires, to enter into the Land &s;o aliened.</P>
<P>The Law at this pre&s;ent day, mu&s;t of nece&s;&s;itie be taken, that the wife or her heires in the for|mer ca&s;e may pre&s;ent, without recontinuance of the Mannor, for that, that the &s;ame Statute or|dained then, that &s;uch alienation, &amp;c. Feoffe|ment act or acts, made or done by the Husband, &s;hall not bee nor make in any manner any di&s;|continuance thereof, or be prejudiciall to her or her heires.</P>
<P>The former rule hath an exception in this man|ner, yet notwith&s;tanding the entrie being not lawfull in the principall; yet if the <HI>Advow&s;on</HI> be &s;evered, and in any manner cannot be recovered, then may the partie wronged notwith&s;tanding pre&s;ent without recontinuance of the principall; As if a man before the Statute of the 32. <HI>H.</HI> 8. 28. be &s;ei&s;ied of a Mannor in right of his Wife, to which an <HI>Advow&s;on</HI> is appendant, and giveth to an E&s;tranger the &s;ame Mannor, or parcell thereof, with the <HI>Advow&s;on</HI> in fee, and dyeth
<PB N="51" REF="29"> afterward, the Church becommeth voyd, and the E&s;tranger pre&s;enteth, and then alieneth the Land to another in fee, &s;aving the <HI>Advow&s;on,</HI> and now the Church becomes voyd, the wife in &s;uch ca&s;e may pre&s;ent to the Church without any recontinuance of the Land di&s;continued to which the Advow&s;on was appendant.</P>
<P><HI>Quaere</HI> therefore in the 5. <HI>H.</HI> 7. 36. where it is holden that if there be Tenant in taile of a Man|nor to which there is and <HI>Advow&s;on</HI> appendant and he alieneth the Mannor, with the Advow|&s;on in fee, and the Di&s;continued granteth the Advow&s;on to another in fee, &s;evering it from the Mannor; the i&s;&s;ue in taile &s;hall not pre&s;ent until &s;uch time as he hath recontinued the Man|nor, neverthele&s;&s;e if a remitter be of the princi|pall, hee that is &s;o remitted may pre&s;ent to the Advow&s;on the next time that it becommeth voyd, notwith&s;tanding any u&s;urpation thereof before had: For if Tenant in taile be of a Man|nour to which an Advow&s;on is appendant and di&s;continueth the &s;ame, and the Di&s;continuee granteth the Advow&s;on to another in fee, and afterward re-enfeofeth the Tenant in taile of the Mannor, who dieth &s;ei&s;ied of the Mannor, now his heire &s;hall pre&s;ent to the Advow&s;on when it becommeth voyd; and if hee bee di&s;turbed hee &s;hall have a <HI>Quare Impedit,</HI> becau&s;e he is remit|ted to the Mannor, and hath not any remedy otherwi&s;e to come to the <HI>Advow&s;on.</HI></P>
<PB N="52" REF="30">
<P>But vpon the other part if tenant in tayle be &s;ei&s;ie of a mannor to which an <HI>Advow&s;on</HI> is appendant and di&s;continueth the &s;ame, and afterward the Church becomes voyde, and the tenant in tayle pre&s;enteth to the Church by v&s;urpation, it &s;eemeth by the better opinion, of the 5. <HI>H.</HI> 7. 36, 38. that hee is not remitted of the <HI>Advow&s;on,</HI> for that, that his ancient right therevnto was to an <HI>Advow&s;on</HI> appendant, but now it is in gro&s;&s;e; But if the tenant in tayle had aliened the &s;ame to an e&s;tranger in fee, and after dyeth; notwith&s;tanding that, he take the rents and &s;ervices, that afterward di&s;cen|deth to the i&s;&s;ue, yet is the i&s;&s;ue therevnto remit|ted; becau&s;e &s;uch rents and &s;ervices are parcell of the mannor and not appendant.</P>
<P>And &s;o it was likewi&s;e before the &s;aid Sta|tute of 32. <HI>H.</HI> 8. if a man bee &s;ei&s;ie of a Man|nor which is an <HI>Advow&s;on</HI> appendant in right of his wife, and di&s;continueth the &s;ame Mannor, and after the Church becomes void, and he pre&s;enteth to the Church by v&s;urpati|on, and dyeth; having i&s;&s;ue by the wife, and the wife al&s;o dyeth, the i&s;&s;ue in this ca&s;e is not remitted to the Advow&s;on, for the rea|&s;ons before &s;hewed; hereof it en&s;ueth likewi&s;e, as before partly hath appeared, that in all ca|&s;es where there is a Mannor, to which an Ad|vow&s;on is appendant, and the Mannor with the <HI>Advow&s;on</HI> is aliened with wrongful convey|ance,
<PB N="53" REF="30"> and the entrie of him that hath right is not taken away, there may hee pre&s;ent to the Church without recontinuance of the Mannor, to which the <HI>Advow&s;on</HI> is appendant; and ther|fore if a man make a lea&s;e for life of a Mannor to which an <HI>Advow&s;on</HI> is appendant, if the Le&s;|&s;ee for life make a Feofment in fee, of the Man|nour and <HI>Advow&s;on;</HI> and after the Church be|commeth voyd, the Le&s;&s;or may pre&s;ent to the Church, without any entrie made into the Man|nour, becau&s;e his entrie was lawfull into the Mannour. But if it be a rightfull purcha&s;e, that requireth &s;ome other act to be done, for the exe|cution and perfection of the &s;ame, then cannot the perfection thereof bee accompli&s;hed in the acce&s;&s;arie, that is to &s;ay, in the Advow&s;on be|fore the &s;ame bee performed in the principall; wherefore it is holden by the better opinion in the 9. <HI>E.</HI> 3. 43. 839. that where a certain cham|ber was exchanged for certaine acres of land, with an Advow&s;on appendant to the &s;ame acres of land: to perfect this exchange, hee that had the acres and Advow&s;on in exchange, could not pre&s;ent to the Advow&s;on untill he had made his entrie into the acres. And thus much hath been &s;aid, how an Advow&s;on appendant may be &s;eve|red from the principall, and againe recontinued with re-entrie, or without entrie into the &s;ame.</P>
</DIV2>
<DIV2 N="10" TYPE="lecture">
<PB N="54" REF="31">
<HEAD>LECT. 10.</HEAD>
<HEAD TYPE="sub">Of Advow&s;ons in Gro&s;&s;e.</HEAD>
<P>_AS c<GAP DESC="illegible" REASON="faint" EXTENT="1 letter">ncerning our fir&s;t purpo&s;ed Divi|&s;ion, to be either appendant, or in gro&s;&s;e, or partly appendant, or partly in gro&s;&s;e; I have before pro&s;ecuted the fir&s;t part, that is to &s;ay; The natures of <HI>Advow&s;ons</HI> appendant, now therefore it re&s;teth to &s;peake &s;omewhat of <HI>Ad|vow&s;ons</HI> in Gro&s;&s;e.</P>
<P>The originals of <HI>Advow&s;ons</HI> in Gro&s;&s;e, &s;ee|meth to be grounded upon two occa&s;ions; The fir&s;t is, that <HI>Advow&s;ons</HI> in gro&s;&s;e at the beginning begun originally by one of the before-&s;pecified three manner of wayes; which is, <HI>Ratione fun|dationis,</HI> for when they were agreed, that he that founded the Church, and was at the co&s;t of the building thereof, &s;hould be Patron thereof; hee cannot bee Patron of this by rea&s;on of any Land or Dotation, by which his patronage might be appendant, but onely by rea&s;on of the building, which being a patronage without Land, mu&s;t of nece&s;&s;itie bee the originall cau&s;e of Advow&s;ons in gro&s;&s;e.</P>
<P>The &s;econd occa&s;ion of <HI>Advow&s;ons</HI> in gro&s;&s;e, was the &s;undering and &s;everance of them from the principall to which they were fir&s;t appen|dant, and &s;o by Graunt or other Conveyance they became in gro&s;&s;e, which before were ap|pendant;
<PB N="55" REF="31"> wherefore how they may be &s;undred by Graunt, now let us con&s;ider, and &s;ee what que&s;tions in our Bookes have been moved here|upon. In the 33. <HI>H. 8. 44. 48. 112: Pyer</HI> of the opinion that <HI>Shelly</HI> is, That if a man bee &s;ei&s;ied of a Mannor, to which an <HI>Advow&s;on</HI> is appen|dant and alien one acre parcell of the Mannour, and by the &s;ame Deed, after granteth the <HI>Ad|vow&s;on,</HI> that the <HI>Advow&s;on</HI> &s;hall pa&s;&s;e in gro&s;&s;e; otherwi&s;e, hee thought the Law to bee as if the Feofment were made of the entire Mannor; yet this difference agreeth not with the opinion of <HI>Hill,</HI> who thinketh that in both ca&s;es, the Ad|vow&s;on pa&s;&s;eth appendant.</P>
<P>Yet I thinke, if a man be &s;ei&s;ied of a Mannor to which an <HI>Advow&s;on</HI> is appendant, and after granteth by his Deed one acre parcell of the Mannor, and by another Deed the <HI>Advow&s;on,</HI> and delivereth both tho&s;e Deeds at one time to the Grantee, although in con&s;truction of Law, both tho&s;e Deeds are but one Deed; yet the Advow&s;on pa&s;&s;eth in gro&s;&s;e clearely, and not appendant to the acre.</P>
<P>If a man be &s;ei&s;ied of a Mannor with an Ad|vow&s;on thereto appendant, and granteth the Mannor to <HI>I.</HI> and <HI>S.</HI> excepting one acre, the Ad|vow&s;on not being &s;pecially &s;poken of, in the Grant, it &s;till remaineth to this acre excepted; For &s;aith <HI>Bracton, Si partem fundi dederit quis quamvis cum omnibus pertinentiis &s;uis, &amp; parte~
<PB N="26" REF="32"> retinuerit, non propter hoc transfertur advocatio &s;ed cum donatore, remanebit licet minimam par|tem fundi retinuerit non enim transfertur cum a|liqua parte fundi ni&s;i <GAP DESC="illegible" REASON="faint" EXTENT="1 letter">pecialitur transfertur.</HI></P>
<P>If hee which hath a Mannor to which an Ad|vow&s;on is appendant giveth one part of the Mannor, with one part of the Advow&s;on to <HI>A.</HI> and the &s;econd part of the Mannor with the &s;e|cond part of the Advow&s;on to <HI>B.</HI> and the third part of the Mannor, with the third part of the Advow&s;on to <HI>C.</HI> in fee, yet notwith&s;tanding this Divi&s;ion, the Advow&s;on remaineth in com|mon, appendant.</P>
<P>If a Mannor to which an advow&s;on appen|dant is belonging, di&s;cend to an heire, and if hee grant the moity or third part of the Man|nor <HI>cum pertinentiis,</HI> no part of the Advow&s;on pa&s;&s;eth; but if he a&s;&s;igne Dower to his Mother, of the third part of the Mannor, <HI>cum pertinen|tiis,</HI> &s;he is hereby endowed of the third part of the Advow&s;on, and may have the third pre&s;ent|ment.</P>
<P>If a man bee &s;ei&s;ied of a Mannor or one acre of Land to which an Advow&s;on is appendant, and maketh a lea&s;e of the Mannor or acre, for terme of Life, excepting the Advow&s;on, the Advow&s;on is in gro&s;&s;e, and cannot bee ap|pendant to the rever&s;ion of the Mannor or acre.</P>
<P>But if I lea&s;e the Advow&s;on for terme of
<PB N="57" REF="32"> life, re&s;erving the Mannor in my hands, yet the rever&s;ion of the Advow&s;on remaineth al|wayes appendant to the Mannor, or to the acre of Land.</P>
<P>For if a grant be made by me of a Mannor or acre, with the appurtenances, the rever&s;ion of the Advow&s;on pa&s;&s;eth, for the rever&s;ion of an Advow&s;on may be appendant to a Mannor or acre in po&s;&s;e&s;&s;ion, but the Advow&s;on in po&s;|&s;e&s;&s;ion cannot be appendant to the rever&s;ion of an acre or of a Mannor.</P>
<P>Al&s;o, if a man hath a Mannor to which an Ad|vow&s;on is appendant and alieneth the &s;ame Mannor, and excepteth the Advow&s;on, the Ad|vow&s;on is become in gro&s;&s;e, and although hee purcha&s;e the Mannor, yet is the Advow|&s;on &s;till in gro&s;&s;e; and cannot bee appendant.</P>
<P>But in all the&s;e ca&s;es &s;ome are of opinion that although the <HI>Advow&s;on</HI> bee excepted out of the grant of the Mannor, yet neverthele&s;&s;e, it is requi&s;ite to have a Deed of &s;uch grant contai|ning &s;uch exception, otherwi&s;e the <HI>Advow&s;on</HI> will pa&s;&s;e with the Mannor.</P>
</DIV2>
<DIV2 N="11" TYPE="lecture">
<PB N="58" REF="33">
<HEAD>LECT. 11.</HEAD>
<HEAD TYPE="sub">Of Advow&s;ons partly appendant, partly in Gro&s;&s;e.</HEAD>
<P>_HAving formerly &s;poken of <HI>Advow&s;ons</HI> appendant and in gro&s;&s;e, now remaineth the la&s;t member of the former di|ui&s;ion to be mentioned, which is Advow&s;ons partly appen|dant, partly in gro&s;&s;e.</P>
<P>Such Advow&s;ons as are partly appendant and partly in gro&s;&s;e, are &s;o deemed either in re|&s;pect of the time or in re&s;pect of the per&s;ons.</P>
<P>In re&s;pect of the time in this manner, &s;ome Advow&s;ons there are, that are at one time ap|pendant and at another time in gro&s;&s;e, and &s;o a|gaine may be appendant as occa&s;ion &s;erueth. As if a man be &s;ei&s;ied of a Mannor or of an acre of land, to which an <HI>Advow&s;on</HI> is appendant, and lea&s;eth the &s;ame Mannor or acre, excepting the <HI>Advow&s;on,</HI> the <HI>Advow&s;on</HI> is now become in gro&s;&s;e, and yet after the lea&s;e is ended, &s;hal bee againe appendant as befoee.</P>
<P>In re&s;pect of the par&s;on it may &s;o happen, that an <HI>Advow&s;on</HI> may be appendant in regard of a propietor thereof, and that in many ca&s;es.</P>
<P>One ca&s;e to begin with, is this, that if a man be &s;ei&s;ied of a Mannor to which an <HI>Advow&s;on</HI> is appendant, and an E&s;tranger leauieth a fine of the &s;ame <HI>Advow&s;on</HI> to him that is now &s;ei&s;ied of
<PB N="59" REF="33"> the Manor and <HI>Advow&s;on,</HI> vpon which fine the &s;aid coun&s;ee (being &s;till owner of the Mannor and <HI>Advow&s;on</HI>) granteth to the Coun&s;or that hee &s;hall pre&s;ent to the <HI>Advow&s;on</HI> euery &s;econd avoydance, by this fine the <HI>Advow&s;on</HI> remai|neth inre&s;pect of him that hath the Mannor, &s;till appendant to the Mannor as before, but in re&s;pect of the Coun&s;or that neuer had intere&s;t before, at euery &s;econd avoydance it is become in gro&s;&s;e, and he &s;hall pre&s;ent thereunto as to his <HI>Advow&s;ow</HI> in gro&s;&s;e.</P>
<P>But (as he in the former ca&s;e) hee that was &s;ei&s;ied of the Mannor had leauyed the fine, (and the E&s;tranger &s;o being coun&s;ee) and made &s;uch grant to the coun&s;ee to pre&s;ent at euery &s;e|cond turne, the <HI>Advow&s;on</HI> had beene totally in gro&s;&s;e; for by the coun&s;ance it had beene wholly in gro&s;&s;e, and &s;euered from the Man|nor.</P>
<P>If three be &s;ei&s;ied of a Mannor that hath an <HI>Advow&s;on</HI> appendant thereto belonging, and two of them relea&s;eth all their right of the <HI>Ad|vow&s;on</HI> to the third, the third is &s;ei&s;ied of two parts of the Advow&s;on as in gro&s;&s;e, and of the third part as appendant, for that, that the third part, was neuer &s;euered from the Mannor, but if the third dye, all the entyre Advow&s;on de&s;|cends in gro&s;&s;e to his Heyre, for nothing was in Ioynture but the Mannor that &s;uruiued to the other two, that relea&s;ed, their right in the
<PB N="60" REF="34"> Advow&s;on, and no part of the Advow&s;on can come to them; for that, the &s;ame was not in Joynture, as the time of the death of the third Joyntenant, and al&s;o becau&s;e they relea&s;ed their right before.</P>
<P>If two Joyntenants bee &s;ei&s;ied of a Mannour to which an Advow&s;on is appendant, and the one granteth all his right of the Advow&s;on un|to another in Fee, this Advow&s;on is both in gro&s;&s;e and appendant, and if hee that hath the Mannour, and ought to pre&s;ent everie &s;econd turne, bring his <HI>Quare Impedit,</HI> he &s;hall not &s;ay that hee is &s;ei&s;ied of the Mannour with the Ad|vow&s;on appendant at every &s;econd turne (name|ly, when there is partition betweene them) to pre&s;ent by turne, but &s;hall &s;ay that he was &s;ei&s;ied of the Mannor with the moitie of the <HI>Advow&s;on</HI> appendant.</P>
<P>If a Mannor with an <HI>Advow&s;on</HI> appendant thereunto, de&s;cend to two Coperceners, and they make &s;uch partition of the Mannour, and compo&s;ition to pre&s;ent, although the com|po&s;ition be otherwi&s;e than of right is due, yet is the fir&s;t pre&s;entation to belong to the elde&s;t, and the &s;econd to the &s;econd Copercener, &amp;c. and the <HI>Advow&s;on</HI> remaineth &s;till appendant notwith&s;tanding &s;uch compo&s;ition, to pre&s;ent by turne.</P>
<P>But if three Mannors de&s;cend to three Co|perceners, and an <HI>Advow&s;on</HI> is appendant to one
<PB N="61" REF="34"> of them, and they make &s;uch partition, that eve|rie Copartner hath a Mannor allotted to him, and compo&s;ition to pre&s;ent by turne to the Advow&s;on, now is the Advow&s;on in &s;uch ca&s;e &s;evered and in gro&s;&s;e, in re&s;pect of the Co|perceners.</P>
<P>If a man be &s;ei&s;ied of foure Mannors, and to one of them an Advow&s;on is appendant and dieth, having foure Daughters, who maketh partition of the Mannors, &s;o that every of them hath a Mannor, out of which partition the <HI>Ad|vow&s;on</HI> is excepted, this <HI>Advow&s;on</HI> is in gro&s;&s;e by rea&s;on of the exception; yet it &s;eemeth if all the other &s;i&s;ters &s;hould dye, except &s;he to whom the Mannor was allotted to which the <HI>Advow|&s;on</HI> was appendant, that the <HI>Advow&s;on</HI> &s;hould be againe appendant to the Mannor.</P>
<P>If two Churches be, and the <HI>Advow&s;on</HI> of the one is appendant to a Mannor, and the other is in gro&s;&s;e, and the two Churches hap to be uni|ted, and upon the union it is ordained, that the Patrons &s;hall pre&s;ent by turne, now in re&s;pect of him that hath the Mannor, the <HI>Advow&s;on</HI> &s;hall be appendant, and he &s;hall pre&s;ent thereunto as to an <HI>Advow&s;on</HI> appendant, but as to the other, he &s;hall pre&s;ent as to <HI>Advow&s;on</HI> in gro&s;&s;e.</P>
</DIV2>
<DIV2 N="12" TYPE="lecture">
<PB N="62" REF="35">
<HEAD>LECT. 12.</HEAD>
<HEAD TYPE="sub">What Pre&s;entation is, and what is the effect and fruit thereof, and in what manner Pre&s;entation and Nomination differ.</HEAD>
<P>_IN the afore&s;aid Lecture or reading hath beene declared &s;uch matters as was requi&s;ite for the explanation of the word <HI>Right,</HI> &s;et forth in the de|&s;cription of an <HI>Advow&s;on,</HI> which word being there put in &s;tead of that which the Logicians call <HI>Genus,</HI> the re&s;t of the words &s;ub&s;equent there likewi&s;e expre&s;&s;ed, are the Proprieties, effects, and qualities incident to an <HI>Advow&s;on,</HI> thereby to di&s;tingui&s;h this Right from other rights; &s;o that by &s;uch De&s;cription, the nature of an <HI>Ad|vow&s;on</HI> may be fully deciphered.</P>
<P>An <HI>Advow&s;on</HI> as is &s;aid, is <HI>Ius pre&s;entandi,</HI> and the power to pre&s;ent is the very fruit, effect, and entire profit of an <HI>Advow&s;on,</HI> which is by the meanes of pre&s;entation to prefer and advance our Friend, and Pre&s;entation is thus de&s;cribed.</P>
<P>A Pre&s;entation is the Nomination of a Clerk to the Ordinary to be admitted, and in&s;tituted by him to the Benefice voyd, and the &s;ame being in writing, is nothing but a Letter mi&s;&s;ive to the Bi&s;hop or Ordinarie, to exhibit to him a Clerk to have the Benefice voided, the formall force hereof re&s;teth in the&s;e words chiefly, <HI>Pre&s;ento vobis Clericum meum, 13. H. 8. 14. b.</HI> Therefore in our Bookes of Law, an <HI>Advow&s;on</HI> is called
<PB N="63" REF="35"> nothing but a <HI>Nomination</HI> or <HI>Pre&s;entation,</HI> a power to prefer and enable another to have the Benefice, which notwith&s;tanding the Patron cannot enjoy.</P>
<P>Wherefore if the Nomination of an <HI>Advow|&s;on</HI> be granted <HI>habendum</HI> the <HI>Advow&s;on,</HI> the <HI>ha|bendum</HI> is &s;ufficiently pur&s;uant; for although it varie in name, yet it is all one in nature, &s;o that the Graunt of the nomination of an <HI>Advow&s;on,</HI> is in &s;ub&s;tance the Graunt of the <HI>Advow&s;on.</HI> For the profit and commoditie of an <HI>Advow&s;on</HI> re&s;teth in the Nomination or Di&s;po&s;ition of the &s;ame: hereof it en&s;ueth, that if a man grant to mee an <HI>Advow&s;on</HI> excepting the Pre&s;entation during his life, &s;uch exception is voyd and re|pugnant<NOTE PLACE="marg">38. H. 6. 38. b. 38. b.</NOTE> to the Graunt. So that the opinion of <HI>Thompton</HI> in the &s;econd Commentarie of <HI>Plowden</HI> in the arguments of <HI>Smith</HI> and <HI>Staple|tons</HI> ca&s;e, cannot be Law; who thinketh that if Tenant in taile bee of an Advow&s;on, and hee granteth to one by Fine the nomination of the Clerk to the &s;ame Advow&s;on when it becom|meth voyd, that this Fine &s;hall not bind the I&s;|&s;ues, by the Statute of the 32. <HI>H.</HI> 8. 36. Becau&s;e &s;uch Fine is levied of a thing intailed, as hee thought; whereby above it hath appeared, that the Pre&s;entation and the Nomination is one thing, and the fruit and full profit of the Patro|nage; and therefore &s;uch fine is of full effect and force to bind the i&s;&s;ue in taile, for the Advow|&s;ons,
<PB N="64" REF="36"> and yet if the ca&s;e afore&s;aid be &s;o under|&s;tood, that tenant in taile of an Advow&s;on gran|ted by fine the Nomination of the Clarke to one, and his Heyres, &s;o that when the Church became voyd, the Grantee and his Heyres &s;hould nominate a Clarke to the tenant in tayle and his Heyres, and that he or they &s;hould pre&s;ent: the Clarke (&s;o nominated) to the Ordinarie, and the tenant in tayle dyeth, &s;uch fine &s;hal not binde the i&s;&s;ues in tayle; therefore the fine is not of things intayled, for there is the nomination and pre&s;entation di&s;tingui&s;hed.</P>
<P>The pre&s;entation may be di&s;tingui&s;hed from the nomination, &s;o, that one may haue the Pre|&s;entation, and another the Nomination, and &s;o they may bee diuers di&s;tinct inheritances. As if I being &s;ei&s;ied of an Advow&s;on in fee, granteth to <HI>I. S.</HI> and his heyres, that he &amp; his heyres euery time the Church becommeth voyde, &s;hall nomi|nate to mee a Per&s;on to be pre&s;ented to the &s;ame Church, which per&s;on &s;o nominated, I or my Heyres &s;hall pr&s;ent to the Ordinary of the place to be admitted accordingly, into the Church. And a que&s;tion hath been moued herevpon who<NOTE PLACE="marg">24. E. 3. 69 a. b. 14 H. 4 11. a. 1. H. 5 16. 5. E. 4. 123. a. 21. H. 6. 17.</NOTE> &s;hall be &s;aid Patron of the &s;ame Church, &s;ome thinke that he that hath the nomination &s;hall be Patron onely, and that he that ought to pre&s;ent, &s;halbe as &s;ervant to him that hath the nominatio~</P>
<P>Therefore in the 14. <HI>E.</HI> 4. 26. the Iu&s;tices di|&s;tingui&s;hed, that if one be &s;ei&s;ied of an <HI>Advow|&s;on</HI>
<PB N="65" REF="36"> and granteth to <HI>I. S.</HI> and his heires to nomi|nate at every avoydance to him and his heires a Par&s;on to be pre&s;ented to the &s;ame Church, which Par&s;on &s;o nominated, &s;hal be by him or his heirs pre&s;ented to the Ordinary, that he to whom the nomination is &s;o granted &s;hall be Patron.</P>
<P>But if I grant to <HI>I. S.</HI> that at every avoydance he &s;hall nominate to me two Clerks, of which I &s;hall pre&s;ent one to the Bi&s;hop, now I remaine Patron, notwith&s;tanding this, becau&s;e the electi|on is in me which of the parties named &s;hall bee pre&s;ented and have the Benefice.</P>
<P>If a man have the Nomination to a Benefice, and another the Pre&s;entation, and hee that hath the Pre&s;entation granteth an annuitie to a Clerk untill he be advanced to a Benefice by the Gran|tor, if afterward the Church become voyd, and the Grantee bee nominated to the Grantor to bee pre&s;ented over, who doth &s;o accordingly, and upon this bee admitted, in&s;tituted and in|ducted, yet the annuitie &s;hall not cea&s;e, for that, that the Grantee was not thereunto preferred by the Grantor, although he pre&s;ented him. Of the other part there is an authority, that if a Spiritu|all man have the Pre&s;entation, and a Lay-man the Nomination, if the Lay-man nominate to the E&s;pirituall man a Clerk to bee pre&s;ented o|ver, who doth &s;o accordingly, if before his ad|mi&s;&s;ion the Lay-man nominate another to bee likewi&s;e pre&s;ented, which the Spirituull man re|fu&s;eth
<PB N="66" REF="37"> to doe; for that, that hee hath pre&s;ented one already by his nomination, the Lay-man &s;hall not maintaine any <HI>Quare Impedit</HI> again&s;t the Pre&s;entor for &s;uch refu&s;all; becau&s;e, the Spi|rituall man is Patron, and being a Spirituall man, hee cannot change his pre&s;entation alrea|dy made; Al&s;o it &s;hould &s;eeme in &s;uch ca&s;e, that the pre&s;entation &s;hould bee made onely in his name, that hath the pre&s;entation, and not in his name that hath the nomination; therefore, if the Ordinarie &s;hould refu&s;e the Clerk for di&s;|ability, notice &s;hall be given only by him, to him that hath the pre&s;entation, and not to him that hath the nomination; for the better reconcilia|tion of tho&s;e and the like authorities, <HI>Di&s;tin|guendum e&s;t &s;ic,</HI> that in re&s;pect it mu&s;t be had of &s;uch an E&s;tranger, as &s;hall u&s;urp upon the Bi|&s;hop, or upon the Patron, in regard of each o|ther, and in re&s;pect of all &s;trangers that u&s;urp; He that hath the nomination is only patron, and &s;hall have a <HI>Quare Impedit,</HI> or a writ of Right, as his ca&s;e requireth: In which writ his of <HI>Quare Impedit,</HI> &s;hall bee this; <HI>Quam permittit ip&s;um pre&s;entare:</HI> but his Declaration &s;hall be e&s;peci|all, that the plaintiffe ought to nominate one, and that hee ought to pre&s;ent him over to the Bi&s;hop, and that <HI>B.</HI> hath di&s;turbed him of his no|mination, and the writ to the Bi&s;hop &s;hall bee a recoverie to the plaintiffe, <HI>Quod Epi&s;copus ad|mittat Clericum ad denominationem, &amp;c.</HI> in re|&s;pect
<PB N="67" REF="37"> of the Bi&s;hop that hath the pre&s;entation, he &s;hall be &s;aid Patron; for if hee that hath the pre&s;entation cannot varie from his pre&s;entation, the other &s;hall not; yet if hee that hath the pre|&s;entation, and hee that hath the nomination bee both Lay-men, then he that hath the nominati|on may varie in his pre&s;entation, and change the &s;ame as often as he will, untill In&s;titution be had: wherefore in the former ca&s;e it en&s;ueth, that if he that hath the pre&s;entation be a Spiritual man, and pre&s;ent him that is nominated to him, being not fit, hee ought not to have notice given him of the refu&s;all of the Ordinarie, for this cau&s;e, he that hath the nomination &s;hall not have any no|tice likewi&s;e.</P>
<P>For I thinke the Law to be thus; If one hath the nomination and another the pre&s;entation, and the Church becomes voyd, if the Laps in|curre, and hee that hath the pre&s;entation onely pre&s;enteth to the Bi&s;hop, before the Bi&s;hop take benefit of the Laps, without any nomination of the other, the Bi&s;hop in this ca&s;e ought and is bound to admit his Clerk that hee &s;o pre&s;en|teth, as the Clerk of the Patron him&s;elfe. If re&s;pect be had each of other, then are they both Patrons after a manner, and by injurie offered by everie of them to the other, one of them may puni&s;h the other. As if he that hath the nomina|tion will pre&s;ent immediately to the Ordinarie, he that hath the pre&s;entation may bring a <HI>Quare
<PB N="68" REF="38"> Impedit</HI> or a Writ of right of <HI>Advow&s;on,</HI> again&s;t him as his ca&s;e requireth, &s;o if hee that hath the pre&s;entation refu&s;e to pre&s;ent the Clerk nomi|nated to him, or pre&s;ent one him&s;elfe without nomination, the other &s;hall bring a <HI>Quare Im|pedit,</HI> or a Writ of right again&s;t him, and his<NOTE PLACE="marg">Fitzh. 33. b. 14. H. 4. 11. a. 21. H. 6. 17. a.</NOTE> Writ &s;hall be <HI>Quod permat ip&s;um pre&s;entare, &amp;c.</HI> But in his Declaration he &s;hall declare the e&s;pe|ciall matter.</P>
<P>In everie of which &s;uits and recoveries, and in the Writ to the Bi&s;hop &s;hall be &s;o, if hee that hath the nomination pre&s;ent to him that hath the pre&s;entation, hee that hath the pre&s;entation may di&s;turb him in two manners; either by re|fu&s;ing the par&s;on nominated, or by pre&s;enting &s;ome other him&s;elfe that is not nominated. If<NOTE PLACE="marg">24. E. 3. 69. b.</NOTE> hee refu&s;e to pre&s;ent him that is nominated to him, and &s;uit be commenced without any actuall pre&s;entation made by him&s;elfe, then the Writ to the Bi&s;hop of him that hath the nomination &s;hall bee, that hee &s;hall recover his nomination, and that the Bi&s;hop &s;hall admit &s;uch as the o|ther hath nominated to the pre&s;entor, accor|ding to his grant of nomination: But if the di|&s;turbance upon which the &s;uit is granted bee be|cau&s;e the pre&s;entor that &s;hould pre&s;ent the par|&s;on nominated, hath pre&s;ented &s;ome other him|&s;elfe, without nomination, then the Nominator &s;hall have his Writ to the Bi&s;hop to pre&s;ent his Clerk immediately without any nomination at
<PB N="69" REF="38"> all, to be made to the other, that hath the pre|&s;entation, and to remove the other Incumbent.</P>
<P>Finally, if one hath the nomination, and ano|ther the pre&s;entation, if &s;uch right of pre&s;enta|tion acrew to the King, this &s;hall prejudice the inheritance of him that hath the nomination, but hee &s;hall nominate to the Chancellour &s;till, who in the name of the King &s;hall pre&s;ent to the Ordinary. And if the King pre&s;ent without any &s;uch nomination, the Nominator &s;hal bring his <HI>Quare Impedit,</HI> again&s;t the Incumbent only, becau&s;e the King cannot be termed as a U&s;urper.</P>
</DIV2>
<DIV2 N="13" TYPE="lecture">
<HEAD>LECT. 13.</HEAD>
<HEAD TYPE="sub">The things incident to Pre&s;entation pro&s;ecuted, who may pre&s;ent, what Par&s;ons may bee pre&s;en|ted, to whom the Pre&s;entation mu&s;t bee made, and the manner thereof.</HEAD>
<P>_BEfore hath beene &s;hewed what a Pre|&s;entation is, and what is the effect and fruit of the Patronage; and finally, in what ca&s;e the Pre&s;entati|on and Nomination differeth.</P>
<P>At this time it re&s;teth, how to pro&s;ecute the things incident to Pre&s;entation, and to make &s;hew who may pre&s;ent, what Par&s;ons may bee pre&s;ented, to whom the Pre&s;entation mu&s;t bee
<PB N="70" REF="39"> made, and in what manner; But becau&s;e no pre|&s;entation can bee made unle&s;&s;e to a Church or Dignitie, &s;omething &s;hall be &s;hewed, when they &s;hall be voyd, and upon what occa&s;ion.</P>
<P>An avoydance is in two &s;orts, actuall in Deed, de&s;titute in Law, which is an avoydance <HI>de Fa|cto,</HI> and avoydance <HI>de Jure.</HI></P>
<P>Actuall, is when the Church is actuall in deed de&s;titute of his Incumbent in Law, when the Church being full of an Incumbent, is notwith|&s;tanding fru&s;trate of his right and lawfull In|cumbent, by rea&s;on of incapacitie or crime in the par&s;on of him that occupieth in &s;tead of the rightfull and lawfull Incumbent, and there|fore among&s;t the Canoni&s;ts, <HI>Eccle&s;ia Dr. vi|duam tuam &s;pon&s;umque habet inutilem,</HI> there is therefore a great difference betweene voydance in Law, and voydance in Deed; the fir&s;t of which two, the E&s;pirituall Court hath to de|termine, and therefore the &s;upreme head may &s;o di&s;pen&s;e there, that &s;uch avoydance in Law &s;hall never come to bee avoydance in Deed, and of avoydance in Law no title acreweth to the Pa|tron, unle&s;&s;e &s;omething be thereupon accompli|&s;hed, by the E&s;pirituall Court, as a declaratorie &s;entence or &s;uch like; but, upon avoydance in Deed, pre&s;entment acreweth to the Patron, yet in &s;uch and the like ca&s;es, <HI>Di&s;tinguendum e&s;t,</HI> for if the Dignitie be temporall, as a Ma&s;ter of an Ho&s;pitall or &s;uch like, and that there bee found
<PB N="71" REF="39"> defect in him by Vi&s;itors, it is an actuall avoy|dance; and the Patron may upon this make a new collation, without &s;olemne &s;entence of de|privation; but if the Dignitie be E&s;pirituall, it is requi&s;ite upon &s;uch defect that &s;entence of de|privation be given, before avoydance can bee, and that &s;uch &s;entence be notified to the Patron, otherwi&s;e Laps &s;hall not incur again&s;t him.</P>
<P>Avoydance and Plenartie, are <HI>primativa con|traria,</HI> which if they come to bee tryable by i&s;|&s;ue betweene the parties, they are tried by two di&s;tinct Lawes. Plenartie, which is, if the Church be full of an Incumbent or not, &s;hall be tried by the Common Law, which is by the Certificate of the Ordinarie; but avoydance, which is, if the Church be voyd or not, &s;hall be tried by the Countrey impannelled in a Jurie, notwith&s;tan|ding if the i&s;&s;ue bee upon any &s;peciall &s;ort, or manner of avoydance, the &s;ame &s;hall be taxed by the Certificate of the Bi&s;hop, &s;o that &s;uch &s;peci|all cau&s;e &s;hall be Spirituall.</P>
<P>The efficient cau&s;es of avoydance, are either temporall as Death, or &s;pirituall as Deprivation, Re&s;ignation, Creation, Se&s;&s;ion, and Entrie into Religion, whereof more &s;hall be &s;aid afterward.</P>
</DIV2>
<DIV2 N="14" TYPE="lecture">
<PB N="72" REF="40">
<HEAD>LECT. 14.</HEAD>
<HEAD TYPE="sub">The two fir&s;t particular cau&s;es of Avoydance of Churches, <HI>viz.</HI> Is either Temporall, as Death; or Spirituall, as Deprivation; the one of it &s;elfe being manife&s;t, and the other a di&s;charge of the Dignitie or Mini&s;terie.</HEAD>
<P>_IN the la&s;t Lecture or reading be|fore, was &s;hewed &s;omething of a|voydances of Churches in gene|rall, now it remaines to pur&s;ue the particular meanes; that is to &s;ay, Death, Deprivation, Re&s;ignation, Creati|on, or Ce&s;&s;ion, and entrie into Religion, of eve|rie of which, wee will &s;peake &s;omething, as the cau&s;e requireth.</P>
<P N="1">1 And fir&s;t of all, concerning Death, <HI>Quae omnia &s;olvit,</HI> the matter of it &s;elfe is manife&s;t, and needeth no further declaration.</P>
<P N="2">2 As concerning Deprivation, it is a di&s;|charge of the Incumbent of his Dignitie or Mi|ni&s;tery, upon &s;ufficient cau&s;e again&s;t him concei|ved and proved; for by this, hee lo&s;eth the name of his fir&s;t dignitie, &amp; herein two manner of wayes; either by a particular &s;entence in the Spirituall Court, or by a generall &s;entence by &s;ome po&s;itive or Statute Law, of this Realme.</P>
<P>1 Deprivation, is in the Spirituall Court for that, that it is grounded upon &s;ome defect in
<PB N="75" REF="40"> the partie deprived, although it be by act of Law, yet it is deemed as the act of the partie him&s;elfe. The cau&s;es of Deprivation, by Cen&s;ure in the Spirituall Court are to be referred to the Common Law, therefore let us remember &s;uch of them, vpon which que&s;tions have beene mooved in the Bookes of our Law, all which cau&s;es mentioned &s;everally, may be reduced to three principall poynts; fir&s;t, want of Capaci|ty; &s;econdly, Contempt; thirdly, Crime. As concerning the fir&s;t, although by the Common Law, a Lay per&s;on bee pre&s;ented, and In&s;titu|ted, and Inducted, to an e&s;peciall Benefice, which Curate is altogether uncapable of the &s;ame, yet the Church is not therefore to bee &s;aid voyde, as if no pre&s;entation had beene, but it is &s;till full of an Incumbent, <HI>de Facto licet non de Iure,</HI> vntill by &s;entence Declaratorie for his want of Capacity, the Church be adiudged voyde, and vpon this no Laps &s;hall incurre again&s;t the Lay Patron, without notice (of &s;uch incapacity, &amp; &s;entence of deprivation therupon) to him given, King <HI>H.</HI> 4. pre&s;ented one that was incapable of his pre&s;entation, and the Pre&s;entee was thereby admitted, in&s;tituted, &amp; inducted, &amp; afterward the Pope enabled the pre&s;ence by his Bill, yet the King had a <HI>Scire fac.</HI> and thereby re|covered his pre&s;entation againe, becau&s;e the In|cumbent was not capable whe~ he was pre&s;ented. If the Patron pre&s;ent one that is meerely a Lay
<PB N="76" REF="41"> man, within the age of 25. &amp; he vpon this be Ad|mitted, In&s;tituted and Inducted, and afterward a <HI>Qua. Imp.</HI> be brought again&s;t the Patron and the &s;ame Incumbent, wherof Iudgment is given by the default of the Incumbent, where indeed the Incumbent was never at any time duely &s;ummo|ned according to the Law, by rea&s;on of which Iudgment, the &s;ame Incumbent is removed, if up on this afterward, the &s;aid Incumbent by &s;entenc declaratory be deprived in the Spirituall Court, for want of Capacity in &s;uite there, for the cau&s;e of his incapacity exhibited again&s;t him, &s;uch &s;en|tence is good, &amp; availeable in the Common Law although the &s;aid Incumbent were before remo|ved from his Benifice by the Judgment given a|gain&s;t him in the <HI>Qu. Imp.</HI> for though &s;uch decla|ratory &s;entence given again&s;t him by the Spiritu|all Law, cannot remoue him that is removed al|ready, yet it &s;hall make this Incumbent an&s;we|rable to the next Incumbent, for all the meane profits received by him, that was the fir&s;t Incum|bent, from the time of his Induction. Yet if the fir&s;t Incumbent &s;o deprived, wil afterward bring a writ of deceipt vpon the Iudgment given a|gain&s;t him in the <HI>Quare Impedit</HI> by default; for that, that he was not &s;ummoned as afore&s;ayd, hee &s;hall have Iudgment herein, and the &s;ame Deprivation had in the meane &s;ea&s;on in the Spi|rituall Court, no Impediment thereunto; for that, that in the &s;aid &s;uite of Deceipt
<PB N="77" REF="41"> the Incumbancie &s;hall not bee in que&s;tion, but onely the di&s;turbance of the plaintiffe, in the <HI>Quare Impedit,</HI> and &s;o for Incapacitie.</P>
<P>Contempt may likewi&s;e be a cau&s;e of Depri|vation, as if the par&s;on or other Incumbent bee excommunicate, and hee &s;o remaineth in his ob&s;tinacie for the &s;pace of fortie dayes, he is for this deprivable of his Benefice, and yet the Church is not voyd in Deed, without &s;entence in Deprivation given again&s;t him, and if before &s;uch Deprivation, the King as &s;upreame Ordi|narie and the head of the Church would have a Di&s;pen&s;ation for the Incumbent, who for all the &s;entence of Deprivation for his contempt had, hee &s;hall hold his Benefice; &s;uch Di&s;pen&s;ation were voyd, and &s;hould re&s;traine the patron from his pre&s;entation acrewed to him, by meanes of &s;uch Deprivation after en&s;uing.</P>
<P>The third cau&s;e, is Crime, within which may be comprehended Delappidation, or &s;poyle of the Church Benefice, once, in our Books, wor|thy of Deprivation, likewi&s;e Schi&s;me or He|re&s;ie; for the which, or if for &s;ome other cau&s;es the Incumbent were deprived in ancient time in the Court of <HI>Rome,</HI> upon &s;uch Deprivation coming in que&s;tion in our Law, the i&s;&s;ue &s;hould bee upon the avoydance, and it &s;hould be tried where the Church or Dignitie is; but becau&s;e, Crime is <HI>Hydra,</HI> with many heads, and an evill Tree, whereof is bred <HI>Ingens proventus,</HI> much
<PB N="78" REF="42"> fruit, for all fruit of offences which may be com|prehended vnder this name; therefore let vs &s;ur|cea&s;e further to deale with it, onely in general, noting tho&s;e three things as the incidents and con&s;equents of Deprivations.</P>
<P>Fir&s;t, that our Law adiudgeth not the Church actually voyde, without a &s;entence of Depriva|tion, as hath beene before prooved.</P>
<P>Secondly, that though &s;uch &s;entence of De|privation be meerely wrongfull; yet the Digni|tie is voyde, and the &s;entence remaineth in his force, vntill it be relea&s;ed.</P>
<P>Thirdly and la&s;tly, if the party deprived with|in time require by this Law an appeale (vpon &s;uch &s;entence of Deprivation giuen again&s;t him at the Court of the high Iuri&s;diction) &s;uch is the nature of an Appeale, that it holdeth (the &s;entence vpon which it was fir&s;t brought) in &s;u&s;|pence; becau&s;e, in the Common Law it is &s;aid, to have <HI>effectum &s;u&s;pen&s;um prioris pronuntiati;</HI> and therefore, if it be brought upon Deprivati|on, it voydeth the vigour thereof, and reviveth the former dignity, for &s;uch Church &s;hall not be voyde, vntill the fir&s;t &s;entence of deprivation chance to be affirmed in the appeale, and thus much of deprivations in the Spirituall Court, &s;hall &s;uffice at this time.</P>
<P>Concerning Deprivation by Cen&s;ure of Sta|tutes and Po&s;itiue Lawes, &s;ee the&s;e Books that is to &s;ay, 13. <HI>El. Cap. 12. 26. H. 8. Cap</HI> 3. revived by the 1. <HI>El. Cap.</HI> 31. or 3.</P>
</DIV2>
<DIV2 N="15" TYPE="lecture">
<PB N="79" REF="42">
<HEAD>LECT. 15.</HEAD>
<HEAD TYPE="sub">The third particular cau&s;e of Avoydance, being Spirituall, is Re&s;ignation.</HEAD>
<P>_THe precedent Lecture before go|ing, hath &s;hewed the particular cau&s;es of Avoydance of Churches whereof the two fir&s;t, Death and Deprivation, hath beene at large deciphered; the next is Re&s;ignation, of which I will al&s;o at this time &s;omething &s;peake.</P>
<P>Re&s;ignation, or as the Canoni&s;ts termes it <HI>Remytation, E&s;t Iuris propri Spontania refutatio,</HI> or whereas Re&s;ignation is the voluntary yeel|ding up of the Incumbent (into the hands of the Ordinary) his intere&s;t and right that he hath in the Spirituall Benefice, to which he was promo|ted. Of which the matter or &s;ubject is the Spi|rituall benefice, as promotion Eccle&s;ia&s;ticall.</P>
<P>The forme is the manner how, and with what words or due Circum&s;tances it is or &s;hould be accompli&s;hed.</P>
<P>The finall Cau&s;es or effects hereof, is either thereby to make the Spiritual Benefice voyd and de&s;titute of its Incumbent, or vtterly to anient and totally to extingi&s;h &s;uch Spirituall pro|motion.</P>
<P>The efficient Cau&s;es are the per&s;ons that re|&s;igne,
<PB N="80" REF="43"> and the per&s;ons to whom it is or ought to be re&s;igned.</P>
<P>As concerning the matter; this onely may &s;uf|fice to be ob&s;erued, that all Spirituall Dignities pre&s;entatiue may properly be re&s;igned, although they be Abbies, Priories, Prebends, Par&s;onages, or Vicaridges, yet &s;uch Dignities as are certaine may al&s;o be re&s;igned, or to &s;peake more proper|ly relinqui&s;hed, as were &s;ome of the Abbies in the time of King <HI>Hen.</HI> the 8. and &s;o may Bi&s;hop|pricks at this day be re&s;igned, &amp;c. into the hands of the King as &s;upreme Ordinary of the Church and rightfull Patron of the &s;ame Bi&s;hopricks.</P>
<P>As concerning the forme of Re&s;ignation, and prote&s;tation which mu&s;t be when the party will re&s;igne, they are &s;et out in the Regi&s;ter, <HI>fol.</HI> 302. in the folioes of the Booke following, as <HI>Fitzh.</HI> noteth in his <HI>Nat. Br. fol. 273. F.</HI> or <HI>S.</HI> The words of chiefe effect in &s;uch In&s;trument of Re&s;ignati|no, are <HI>Remantiare, Edere, &amp; Dimittere,</HI> for Re|&s;ignation is not any proper terme of the Com|mon Law.</P>
<P>Yet the Law of this Realme, more re&s;pecting matter then formality of words, hath ad|judged a Graunt made by a Prebendarie to the King, to be an effectual Re&s;ignation in the forme of the&s;e words following, that is to &s;ay.</P>
<P><HI>Noverint me A. &amp;c. ex animo deliberativo, certa &s;cientia &amp; mero motu, &amp; ex quibus dam cau&s;is iu&s;tiis &amp; rationalibus me &s;pecialiter mo|nent,
<PB N="81" REF="43"> vltr&oacute; &amp; &s;ponte dedi&s;&s;e &s;ereni&s;&s;imo Domino nostro Ed. 6. Angliae, &amp;c. &s;upremo Capiti totorum Prebendarum &s;uorum ac omnia maneria terras, te|nementa po&s;&s;e&s;&s;iones &amp; hereditamenta quecunque, tam &s;piritualia quam temporalia, ac omnem ple|nam &amp; liberam facultat di&s;po&s;itionem authoritat. &amp; pote&s;tat. dictae prebendae pertinen. &s;pectan. ap|penden. &amp;c. habendum &amp; tenendum eidem Rege Hereditor. &amp; Succe&s;&s;oribus &s;uis, ad eius vel corum proprium v&s;um, &amp;c.</HI></P>
<P>As touching the efficient cau&s;es of Re&s;ignati|on; as fir&s;t, the per&s;on that re&s;igne, if he bee not but onely Admitted and In&s;tituted, al|though as concerning the Spirituall Function he be a Par&s;on before Induction, yet becau&s;e no<NOTE PLACE="marg">Com. 126.</NOTE> part of the Free-hold of the Spirituall Benefice is tran&s;ferred to him, but by the Induction, hee cannot vntill after the Induction, if the King bee Patron, make any good and effectuall Re&s;ignati|on; as therefore, <HI>Renuntiatio re&s;pi&s;it plerumque</HI><NOTE PLACE="marg">21. E. 3. 5. a.</NOTE> <HI>ius que&s;itum, ac repudiamco pertinet ad ius non|dum acqui&s;itum.</HI> As al&s;o for that, that by this &s;ubmi&s;&s;ion and In&s;titution, the Church is not ful in re&s;pect that the King being Patron, &s;uch in|cumbent before Induction is full &s;ubiect to have his pre&s;entation and In&s;titution revoked.</P>
<P>But if a Subiect bee patron, and his pre&s;entee be admitted, &s;uch pre&s;entee (if he be willing to leaue his Charge) may before Induction re&s;igne
<PB N="82" REF="44"> the Church, for the e&s;pirituall Dignity was full of an Incumbent in re&s;pect of his Patron, and be|cau&s;e al&s;o there is no other meanes to cleare the Church of him but by &s;uch renunciation.</P>
<P>As concerning the per&s;on to whom Re&s;ignati|on mu&s;t be made, <HI>Di&s;tinguendum e&s;t;</HI> for if he be onely purpo&s;ed to avoyd the Church, and to cau&s;e the Patron to pre&s;ent againe, then it ought to bee done to the Ordinarie to whom of right the Adm&s;&s;ion and In&s;titution belongeth, and to whom the Patron is bound to pre&s;ent; for it is a Rule among&s;t the Canoni&s;ts, <HI>Apud enim debet fieri renuntiatio apud quem pertinere, digno&s;citur confirmatio,</HI> and Rea&s;on will, it &s;hall be &s;o; be|cau&s;e the King as &s;upreame Ordinarie, if &s;uch Re&s;ignation &s;hould be made to him, hee is not compellable to giue notice to the Patron of &s;uch Re&s;ignation, nor can hee or any other Ordinarie collate vpon the Patron &s;uch notice.</P>
<P>Notwith&s;tanding, if the purpo&s;e be utterly to extingui&s;h &s;uch Dignitie &s;pirituall, the &s;ame Re|&s;ignation may be made to the King, as to the &s;u|preame head of the Church, as in ancient time it might haue beene made to the Pope.</P>
<P>For &s;uch Authority and Juri&s;diction as the Pope v&s;ed in this Realme, was contradicted by an act of Parliament made in the 25 <HI>H.</HI> 8. and other Statutes to be in <HI>H.</HI> 8. and his Succe&s;&s;ors; which Iudgement and opinion I hold too be firme Law, e&s;pecially where the King him&s;elfe
<PB N="83" REF="44"> is Patron, or where the Patronage is to &s;ome Spirituall man for ever, upon Spirituall par&s;ons the Pope (before the Statute of the 25. <HI>E.</HI> 3.) by his provi&s;ions and other meanes u&s;ed more Ju|ri&s;dictions than at any time Lay per&s;ons could bee permitted to doe. The finall effect which con&s;i&s;teth in the end, wherfore Re&s;ignation was ordained, wee have heard to bee two-fold, the <MILESTONE N="1"> one to adnihilate the Spirituall promotion, the <MILESTONE N="2"> other to make it voyd and fit for no Incumbent; of the fir&s;t, wee have &s;ufficiently &s;poken before, and the u&s;e of the other is manife&s;t by tho&s;e au|thorities &s;ub&s;equent.</P>
<P>A Prebend maketh a Lea&s;e for yeares rende|ring rent, and after re&s;igneth it, it is holden cleerely, that by this his Re&s;ignation, this Pre|bend is di&s;charged of the rent, and therefore &s;uch charge &s;hall not be any burthen to his Suc|ce&s;&s;our; likewi&s;e if a Par&s;on re&s;igne after hee hath made a Lea&s;e for yeares, the Lea&s;e is avoy|ded.</P>
<P>Likewi&s;e, if a Par&s;on permute or change his Benefice, which indeed cannot bee accompli|&s;hed without Re&s;ignation, the Charge or Grant made by &s;uch Incumbent for yeares, is utterly voyd.</P>
<P>If a Par&s;on grant an Annuitie out of the par|&s;onage, and after re&s;igne, if after all this the Pa|tron and Ordinarie will confirme &s;uch Graunt, the Confirmation, and the Graunt which was
<PB N="84" REF="45"> voyd before Confirmation cannot be available.</P>
<P>With which agreeth <HI>Pollyard,</HI> who &s;aith; that<NOTE PLACE="marg">14. H. 8. 8 a.</NOTE> if a par&s;on charge a Gleebe, and after re&s;igneth or dyeth, the charge is avoyded.</P>
<P>A Recoverie was had again&s;t a par&s;on in an action of Debt, and in a <HI>Fieri fac.</HI> thereupon the Sheriffe returned, that the Defendant was <HI>Cleri|cus Beneficiatus &amp; non, &amp;c.</HI> in this ca&s;e, if the Defendant re&s;igne, the plaintiffe is de&s;titute of his recoverie, for by &s;uch Re&s;ignation the Church is di&s;charged; becau&s;e the Ordinarie cannot &s;eque&s;ter the Spirituall Benefice upon any proce&s;&s;e awarded to him.</P>
<P>But if the Incumbent that &s;o chargeth, bee &s;uch as hath by the Law ab&s;olute power to deale with the lands of his Spirituall Dignity, without the Confirmation of any other, and may by the Law di&s;continue as Abbot, or Prior, or &s;uch like, then &s;uch charge by him &s;hall not be voyd, by &s;uch Re&s;ignation, but &s;hall continue again&s;t his Succe&s;&s;ours untill it be avoyded by &s;ome o|ther meanes.</P>
<P>Thus much concerning the finall cau&s;e of Re|&s;ignation, to which &s;uffer us to annex the cau|&s;es allowed by the Common Law, to move a Bi&s;hop, or any other beneficed par&s;on to relin|qui&s;h and &s;urrender their function, <HI>Con&s;cientia criminis, debilitas corporis, defectus &s;cientiae, ma|litia plebis, grave &s;candalum, &amp; irregularitas per&s;onae.</HI></P>
<PB N="85" REF="45">
<P>La&s;tly, let us con&s;ider, that Re&s;ignation is dee|med in the Law totally to bee the act of the par|tie, and therefore if any Incumbent being plain|tiffe in any action re&s;igne his Dignitie or pro|motion, his writ brought by him as Incumbent &s;hall abate.</P>
<P>But if &s;uch Incumbent take out a Writ con|cerning his Rectorie, and afterward re&s;igne, and againe be promoted to the &s;ame Dignity, before the returne of the Writ afore&s;aid, it is good and available.</P>
<P>Upon the part of the Defendant upon the &s;ame rea&s;on, is the Law; that if any action bee brought again&s;t any Incumbent, that may charge him in re&s;pect of his &s;everall promotions, his re|&s;ignation (having the &s;ame &s;uit; for that, that it is his act) &s;hall not abate &s;uch writ or action.</P>
<P>It is to be noted, that there are two &s;orts of Re&s;ignations, the one is ab&s;olute, when the In|cumbent intendeth &s;o to make void the Church, and to &s;urrender his right therein to the Ordi|narie, whereupon the patron may pre&s;ent who|&s;oever it &s;hall plea&s;e him to the Church, as if the &s;aid had been voyded by death, or other meanes of Avoydance, as by precedent authorities hath appeared.</P>
<P>The other cau&s;e of Re&s;ignation, is <HI>cau&s;a per|mutationis,</HI> of which in the Regi&s;ter, <HI>fol. 306. b.</HI> appeareth a pre&s;ident.</P>
<PB N="86" REF="46">
<P>Whereupon al&s;o en&s;ueth the forme of Pre&s;en|tation in this manner.</P>
<P><HI>In Dei nomine, Ego H. W. nunc Rector Eccle&s;iae de P. London. Dioce&s;ies &amp; prius Rector Eccle&s;iae de L. c. Dictae P. Dioce&s;ies prote&s;tor dico &amp; alle|go in hiis &s;criptis quod &s;i contingit quod huju&s;|modi Eccle&s;ia mea, de P. ab&s;que dolo &amp; culpa meis in hac parte &agrave; me aliqualiter evincatur volo &amp; in|tendo ad Dictam Eccle&s;iam de N. ab&s;que ali|qua difficultat, libere &amp; licite redire, &amp; eam re|habere juxta Canonicas &s;anctiones &amp; prote&s;tor in|&s;uper quod non intendo nec volo ab huju&s;modi prote&s;tatione &s;eu affectu eju&s;dem recedere aliquali|ter in futurum, &s;ed eidem prote&s;tationi &amp; con|tentis in eadem volo &amp; intendo in futuris tem|poribus firmiter adhaerere, juris beneficio in om|nibus &s;emper &s;olvo, &amp;c.</HI></P>
<P>But to what purpo&s;e Prote&s;tation &s;hould &s;eeme in our Law, I cannot perceive; for that, that it appeareth by the Booke in the 45. <HI>E.</HI> 3. and <HI>Fitzh.</HI> exchange it.</P>
</DIV2>
<DIV2 N="16" TYPE="lecture">
<PB N="87" REF="46">
<HEAD>LECT. 16.</HEAD>
<HEAD TYPE="sub">The next &s;peciall meanes, in Avoydance of Spiri|tuall promotions pre&s;entative, is Creation.</HEAD>
<P>_NOw Creation is, where the Incum|bent is not onely elected, but con&s;e|crated Bi&s;hop, or Arch-Bi&s;hop. By the former Dignities of &s;uch con&s;e|crated, the Benefices becomes voyd, and the Churches or places &s;everall (where their former Sanctuarie was to be executed) and utterly di&s;|charged of their Incumbent, and this immedi|ately upon Con&s;ecration without &s;olemne &s;en|tence Declaratorie in the Spirituall Court.</P>
<P>The rea&s;on whereof, is not only for Inconve|nience of Pluralities; but al&s;o, becau&s;e it &s;hould be likewi&s;e inconvenient for one and the &s;ame par&s;on to be a Subject and a Soveraigne, which in the cour&s;e of our manner of Juri&s;diction can|not be, but is re&s;erved in the Superiour.</P>
<P>Neverthele&s;&s;e, &s;uch avoydance is not before Con&s;ecration or Creation, nor before Con&s;e|cration is he that is promoted, deemed or called Bi&s;hop, or Arch-Bi&s;hop: as appeareth by the&s;e authorities of 5. <HI>E. 2. Fitzh. br. 250. vide 9. E. 3. f. 1. trial. 571. 7. E. 3. 40. a. b. vide 21. E. 3. 40. a. b. 41. E. 3. 56. b. 46. E. 3. 32. 11. H. 4 37. 59 76. &amp; 22. H. 6. 27. a.</HI></P>
<PB N="88" REF="47">
<P>For the better under&s;tanding of this kind of avoydance it is to be noted, that as foure things are required to concur for the full perfecting of any par&s;on or par&s;ons preferred to any Dig|nitie Eccle&s;ia&s;ticall, pre&s;entative, or Collative, as (to wit) fir&s;t of all Pre&s;entation, or as the ca&s;e requireth Collation; &s;econdly, Admi&s;&s;ion; third|ly, In&s;titution; and fourthly and la&s;tly, Induction.</P>
<P>So in the promoting of a Bi&s;hop or Arch-Bi|&s;hop, by the Spirituall Lawes, were required (be|fore the &s;tatute of the 25. <HI>H. 8. cap.</HI> 20.) al&s;o foure things an&s;werable in many re&s;pects to the foure former before recited. As fir&s;t Election, &s;econdly Confirmation, thirdly Con&s;ecration, Creation, or Inve&s;ture; and fourthly, In&s;tallation, or In|thronation.</P>
<P>The Election was made by the Deane and Chapter, or by the Prior and Covent, where they being as Deane and Chapter, as in every of the Sees Cathedrall of <HI>Canterbury, Worce&s;ter,</HI> and <HI>Norwich,</HI> in which Churches the Prior and Co|vent was till the di&s;&s;olution of Mona&s;teries, at which time the &s;ame Priories were di&s;&s;olved, and in &s;tead of them in every of the &s;ame Cathe|drall Churches, a Deane and Chapter hath been by private Acts of Parliament erected. But in &s;ome other Cathedrall Churches, the Election hath beene both by Deane and Chapter, as of <HI>Wells,</HI> and by the Prior and Covent at <HI>Bathe;</HI> and in the See of <HI>Coventry</HI> and <HI>Lichfield.</HI> And in
<PB N="89" REF="47"> &s;ome other Cathedrall Sees, the election of the Bi&s;hop have beene by two &s;everall Deanes and Chapters, as in the Archbi&s;hoprick of <HI>Dublin</HI> in <HI>Ireland,</HI> where both the Deane and the Chap|ter of <HI>Chri&s;ts Church,</HI> and the Deane and Chap|ter of Saint <HI>Patricks</HI> joyned in election, and both of them u&s;ed to confirme the grants of the Bi&s;hop, although <HI>Chri&s;ts Church</HI> was knowne to be the more ancient Church to that See.</P>
<P>As concerning therefore the Election of Arch-Bi&s;hops and Bi&s;hops, the Kings of this Realme of their prerogative royall, &amp; being im|mediate Patrons of the &s;ame Cathedral Church, in ancient time gave and be&s;towed of their Im|periall Juri&s;diction, Archbi&s;hopricks and Bi|&s;hopricks, to &s;uch worthy par&s;ons as they thought fit, without any election of the Chapter as appeareth in the 17. <HI>E. 3. 46. Stower,</HI> and this inve&s;ture was by a ring and a little &s;taffe, by the deliverie of the King, and En&s;ignes of the Bi|&s;hop; but afterward in the time of King <HI>Iohn,</HI> in as much as the Popes had made con&s;titution, that no man &s;hould enter into the Church by a &s;ecular per&s;on, totally, and that the Bi&s;hop of <HI>Rome</HI> coveted to erect the Poperie above the Throne of Kings. A great controver&s;ie was now among&s;t the Monks of <HI>Canterbury,</HI> upon the death of <HI>Hubbert</HI> their Arch-Bi&s;hop, con|cerning the Election of a new one, and although the younge&s;t &s;ect of the Monks ha|ving
<PB N="90" REF="48"> licen&s;e of the King, and al&s;o appointment of the King to chu&s;e <HI>John Gray,</HI> one of the Bi|&s;hops in this Realme for their Arch-Bi&s;hop, yet the quarrell grew to &s;uch fervencie, that it could not be quenched unle&s;&s;e from <HI>Rome,</HI> where the Pope taking opportunitie of &s;uch di&s;&s;ention, would not receive any of the elected, but for|ced the Monks to chu&s;e for their Arch-Bi&s;hop <HI>Stephen Langhton,</HI> then Cardinall of Saint <HI>Chri&s;ogon,</HI> whereof en&s;ued the great di&s;cord be|tweene the King, and the Pope; of which, &s;uch was the tyrannie of Antichri&s;t, that not onely the whole Land was interdicted and &s;o remained five yeares. But the King was accur|&s;ed, and the Subjects were di&s;charged of their obedience, and oath of their allegeance to their naturall Prince; and <HI>Lewis</HI> the French Kings &s;on provoked to make warre again&s;t King <HI>John,</HI> untill hee were con&s;trained to &s;eeke peace at the hands of the Pope, to yeeld his Crowne to the Legate, and after five dayes to take it againe at the Legates hands, &amp; become feodary Tenant to the Pope for the &s;ame, paying an annuall &s;um of mony to the Church of <HI>Rome,</HI> for ever; but al&s;o to content his Clergie, he gave to them alwayes free election of Spirituall Dignities, which memorable antiquitie of the Kings preroga|tive and the lo&s;&s;e therof, is briefly touched in the 2. <HI>H.</HI> 4. 686. and more at large by the Hi&s;tories of tho&s;e times, and although hereby free
<PB N="91" REF="48"> Elections were given to the Clergie, yet &s;ued they forth the Kings licence to proceed to Ele|ction.</P>
<P>The Election of a Bi&s;hop thus made, did not beare the name of a Bi&s;hop, but was to be called Lord elect of the place or Bi&s;hoprick, to which he was elected.</P>
<P>The &s;econd is Confirmation, which was u&s;u|ally made by the Bi&s;hop of <HI>Rome,</HI> and not any other, who (before &s;uch confirmation) u&s;ed to examine the partie, and upon cau&s;e of nonabili|tie to refu&s;e him.</P>
<P>The third is Con&s;ecration, which was perfor|med by the Bi&s;hop and two other Bi&s;hops at the lea&s;t of the &s;ame province where the Bi&s;hoprick then was, being thereunto appointed with the u&s;e of certaine ceremonies, as beatitudes, hol|ding of the Bible over the head of the par&s;on to be con&s;ecrated, laying on of their hands upon his head, anoynting, and other rites thereunto<NOTE PLACE="marg">38. E. 3. 30. b</NOTE> requi&s;ite; And yet it is &s;aid, that the Pope re&s;er|ved the con&s;ecration of the Bi&s;hop to him&s;elfe after election and confirmation, and before crea|tion<NOTE PLACE="marg">5. E. 2. Fitzh. 800. 2. E. 3. Fitzh. bre. 250. 21. E: 3. 5, 6.</NOTE> and con&s;ecration: hee that was &s;o elected and con&s;ecrated, might &s;till retaine the name of his former Dignitie, and if hee would refu&s;e the impo&s;ed charge of the Bi&s;hoprick.</P>
<P>And yet after confirmation, and before con|&s;ecration of the par&s;on confirmed, hee might exerci&s;e &s;o much of his Spirituall Function as
<PB N="92" REF="49"> concerned the Juri&s;diction, but no matters concerning Ordination might he meddle with, for the full under&s;tanding whereof it is to bee knowne, that all things belonging to the Epi&s;|copall function or Mini&s;terie, are to bee reduced to three points; for they belong to him, either <HI>Ratione Juri&s;dictionis,</HI> as the hearing of &s;piritu|all cau&s;es, cen&s;ures, and corrections Eccle&s;ia&s;ti|call, as Excommunications upon offenders and &s;uch like, which may be performed by him after confirmation.</P>
<P>Or, <HI>Ratione Ordinationis,</HI> as giving of Orders, con&s;ecrating or allowing of Churches, or &s;uch like, which he cannot doe before con&s;ecration.</P>
<P>Or, <HI>Lege Dioce&s;iana,</HI> as the execution of Eccle|&s;ia&s;ticall payments and pen&s;ions due to him, as Dioce&s;ian of the Clergie, rated upon the Bi|&s;hopricks of his Dioce&s;&s;e, called therefore by the Common Law <HI>Cen&s;us Cathedraticus.</HI></P>
<P>Notwith&s;tanding, the King may re&s;tore to<NOTE PLACE="marg">41. E. 3. 56. 46. E. 3. 32. a.</NOTE> him his Temporalties after confirmation and before con&s;ecration, if &s;o it plea&s;e his Highne&s;&s;e, but this is <HI>De gratia &amp; non de jure.</HI></P>
<P>But after Con&s;ecration, hee was holden in all re&s;pects a perfect Bi&s;hop, and all his former dig|nities thereby were avoyded, for although by Confirmation <HI>&s;pirituale conjugium contrahetur,</HI> yet by Con&s;ecration <HI>con&s;umatur.</HI></P>
<P>The la&s;t thing is, In&s;tallation or Inthronation, by which he is fully enabled, to pur&s;ue his Tem|poralties
<PB N="93" REF="49"> out of the hands of the King, and actu|ally to enjoy the benefit therof, but if after con|&s;ecration, and before he &s;ue for the Temporalties out of the hands of the King, the Free-hold bee in him or not, is diver&s;ly taken in the 38. <HI>E. 3. 90. b.</HI> 5.</P>
<P>Notwith&s;tanding, the Metropolitan ought to certifie the day and time of the con&s;ecration of everie Bi&s;hop within his Dioce&s;&s;e, for accor|ding thereunto hee &s;hall be re&s;tored to his Tem|poralties, and this I think to be rea&s;on.</P>
<P>Thus you &s;ee, that in &s;ome re&s;pect the election of a Bi&s;hop re&s;embleth the pre&s;entation of a Par&s;on, the Confirmation re&s;embleth the Ad|mi&s;&s;ion of a Par&s;on, the Creation re&s;embleth the In&s;titution of a Par&s;on, and the In&s;tallation or the Inthronation the Induction of a Par&s;on, yet in many other re&s;pects they differ.</P>
<P>And although after the abrogating of the Popes authoritie out of this Realme, it bee or|dained by the 25. <HI>H. 8. cap.</HI> 20. that the election of Bi&s;hops and Archbi&s;hops &s;hould be altered, and the King re&s;tored to his ancient prerogative therein, which prerogative King <HI>Iohn</HI> and his ancient Progenitors long &s;ince enjoyed, and al|though likewi&s;e the ceremonies, forme, and manner of con&s;ecration of Bi&s;hops by the au|thoritie of Parliaments, in the time of King <HI>Ed.</HI> the &s;ixth, were now appointed and publi&s;hed, all acts of Parliament being repealed by the fir&s;t
<PB N="94" REF="50"> and &s;econd of <HI>Philip</HI> and <HI>Mary,</HI> are now revived and in force, by <HI>Eliz.</HI> yet our former po&s;ition holds now firme Law, that no Church nor Spiri|tuall Dignitie at this day becommeth voyd, by making the Incumbent thereof Bi&s;hop, untill his Con&s;ecration, as well by rigor of ancient time, as by Statute.</P>
<P>And therefore at the Common Law, if the King upon defect, or oherwi&s;e, give by vertue of the 25. <HI>H.</HI> 8. 20. by his Letters patents to any fit par&s;on, any Bi&s;hoprick or Archbi&s;hoprick within this Realme, without election, and there|upon before Con&s;ecration re&s;tore to him his Temporalties, or if the Pope had given a Bi&s;ho|prick to any fit per&s;on by re&s;ervation, wich a|mounteth in Law to an Election and Confirma|tion, if the King had re&s;tored to him his Tem|poralties, yet in both ca&s;es untill Con&s;ecration, he is no perfect Bi&s;hop, nor his former Dignities by &s;uch Grant and re&s;titution of Temporalties become voyd untill Con&s;ecration as afore&s;aid.</P>
<P>If before the 25. of <HI>H.</HI> 8. 10. the Incumbent of a Benefice had beene elected Bi&s;hop and confir|med, and before con&s;ecration had, obtained of the Bi&s;hop of <HI>Rome</HI> a di&s;pen&s;ation &s;till to enjoy his former Benefice, notwith&s;tanding his crea|tion or con&s;ecration had en&s;ued accordingly; yet by &s;uch creation the Church &s;hould not have beene voyd, but the partie &s;till enabled to retaine the &s;ame Benefice again&s;t the Patron
<PB N="95" REF="50"> by vertue of &s;uch Di&s;pen&s;ation.</P>
<P>So at this day, if an Incumbent of a Spiritu|all Benefice, be elected and confirmed, and be|fore hee bee con&s;ecrated, obtaine licence or di&s;|pen&s;ation of the Archbi&s;hop of <HI>Canterbury,</HI> to detaine the Benefice <HI>incommendam;</HI> yet he &s;hall he promoted to the &s;ame Bi&s;hoprick, although his licence never be enrolled in the Chancerie, according to the 25. <HI>H.</HI> 8. but onely enrolled by the Regi&s;ter of the Archbi&s;hop, although the con&s;ecration be before this licence or di&s;pen&s;a|tion appointed to take effect, yet by vertue of &s;uch di&s;pen&s;ation, the former Dignitie or Bene|fice becommeth not voyd, by the &s;ame con&s;e|cration. Yet if the Incumbent of any Spirituall Benefice be elected, con&s;ecrated, and confirmed Bi&s;hop, and after his con&s;ecration procureth a di&s;pen&s;ation of the Pope in papacie, or of the Metropolitan &s;ince the Stat<GAP DESC="illegible" REASON="faint" EXTENT="1 letter"> of the 25. <HI>H. 8. c.</HI> 20. &s;uch di&s;pen&s;ation &s;hall not be available; becau&s;e, by the con&s;ecration, the former Dignitie or Be|nefice was actually, and in Deed voyd; and then, neither the Di&s;pen&s;ation of the Pope could at any time, nor of the Metropolitan at this time, take from the Patron the right of his pre&s;enta|tion of &s;uch avoyded Dignitie, by the Con&s;e|cration acrewed to him; becau&s;e, after the fir&s;t Dignitie is once voyd by the Con&s;ecration, the Di&s;pen&s;ation commeth too late.</P>
<P>Yet the King; <HI>Ex &s;umma authoritate &s;ua Regia
<PB N="96" REF="51"> Eccle&s;ia&s;tica qua fungitur,</HI> may grant (to the Bi|&s;hop that is con&s;ecrated) power to take and re|ceive by Pre&s;entation, In&s;titution and Inducti|on, any Spirituall Benefice, and to hold the &s;ame in <HI>Commendam,</HI> notwith&s;tanding his e&s;tate of being Bi&s;hop, for &s;o the Pope u&s;ed to doe, and the &s;ame authoritie is recogni&s;ed by the Statute of the 25. <HI>H.</HI> 8. to bee in the King or Queene of this Land, which was within this Realme by the Pope.</P>
<P>Finally, this is to be noted, that whereas before it hath beene &s;aid, that Deprivation is the act of the Law, yet grounded upon the act of the par|tie; So is creation of the Bi&s;hop, the act of the Law, wherfore if a man bring an action and pen|dant his writ, bee created Bi&s;hop, the writ &s;hall not abate; becau&s;e, it is only the act of the Law, but yet Re&s;ignation is meere|ly the act of the partie, thus much for Creation.</P>
</DIV2>
<TRAILER>FINIS.</TRAILER>
<PB REF="51">
</DIV1>
</BODY>
</TEXT>
</EEBO>
</ETS>
