the first is void by institution to the second, without deprivation or sentence declaratory; yet no lapse shall incur, unless notice be given to the patron, no more than if the church became void by resignation or deprivation; and yet the patron may take notice if he will, and present according to the said constitution. In Rex v. The Archbishop of Canterbury (1) the church is said to be "void. But not so that the lapse incurred." So in Fitzh. N. B. 34, the first benefice is said to be "void." In Edes v. The Bishop of Oxford (2) it is also said to be "void." In Winchcombe v. Bishop of Winchester (3) it is said, "a thing may be void or not void, at the election of him whom it concerns, as in Holland's case." "The patron of the first church may take it as void, and present presently, or may leave it as full till sentence of deprivation." It is remarkable that there the church is not said to be full. In the case in Sir William Jones (reported also in Croke), Rex v. Priest (4), the law is laid down to the like effect as in Holland (5) and Digby's (6) cases, and a very clear explanation given of the Council of Lateran. It is said to have been held, first, by the greater part of the justices, that before the statute of 21 Hen. VIII. the first church was void, and the patron could present, if he would, without sentence declaratory, by the said constitution of Lateran; for the words are, ipso jure sit privatus, and do not mention any sentence of deprivation; by the same canon, a church shall be void, without sentence, if one be consecrated bishop, so for the same reason, and by the same words, the first benefice shall be void by the taking of the second benefice; if a party resign, or be deprived by a particular sentence for crime, the church shall be void, and à multò fortiori, the constitution (which is a general sentence of deprivation, as is said 10 Edw. III. 2 (7)) will make an avoidance; but true it is that, in the said case, the patron is not bound to take notice of it, being an ecclesiastical constitution, so, upon a particular (1) Hetley, 125. (2) Vaughan, 21. (3) Hob. 166 (5th ed.). (4) 1 Jones, 337; S. C. as Rex v. The Archbishop of Canterbury and Pryst, Cro. Car. 356. (5) 4 Co. Rep. 75a; S. C. as Armiger R.R.-VOL. XLV. v. Holland, Moore, 542; Cro. Eliz. (6) 4 Co. Rep. 79 b. (7) The reference seems to be to Rex v. The Bishop of Norwich, Year B. Hil. 10 Edw. III. pl. 3, fol. 1 A. 47 ALSTON v. ATLAY, [ *308 ] [ *309] ་ ALSTON ጥ. ATLAY. [310] deprivation or resignation, notice ought to be given to the patron, otherwise no lapse; yet there is an avoidance. And it was agreed on the other part, according to the said cases, that the patron can present, if he will, without notice or sentence declaratory; and that could not be, unless the church was void before the presentation, for the form of presentation is, "ad ecclesiam jam vacantem," which presupposes vacancy before the presentation. In Rex v. Bishop of London (1) it was resolved by all the four Judges that, where the first living was under value, the acceptance of a second was an avoidance by the canon law, ipso jure, without any deprivation, so that the patron could present, if he wished, without any sentence of deprivation; and, the church being once void, as to the patron to present, a dispensation by the Archbishop afterwards came too late, and could not restore the clerk to his benefice; and Jones says it seemed to him clearly that, by the institution and induction to the second benefice, the first being under value, the first benefice was void, as well as if it was above value; but the difference in the last case is, that the patron must take notice at his peril, for it is void by the Act of Parliament, and the words are, it shall be void as if the incumbent were dead; and, if he does not present in six months, the living will lapse. But in the first case there was no lapse, and the patron might present. And he also gave his opinion, that, if the Bishop gave notice to the patron of the taking of the second benefice, if he do not present within six months, there would be a lapse, as upon deprivation or resignation; and, if the benefice was not void, but there ought to be a deprivation, then the presentment and institution upon that would be a void institution; which is not so, for the first institution and incumbency is made void by taking the second benefice. And the case of Leak v. The Bishop of Coventry (2) has a very important bearing upon the question now under discussion, for it is a direct authority that, where the Bishop, after deprivation, but without giving notice of such deprivation, collated, and the patron afterwards grants the advowson in fee, and the clerk (2) Cro. Eliz. 811. (1) 1 (Wm.) Jones, 404. collated by the Bishop dies, the grantee of the advowson cannot bring a quare impedit: and the reason given is that, when the original patron had right to present upon the deprivation, as in his turn, although the collation by the Bishop, without notice, was not good, nor ousted him, but that he always might have presented, and ousted the incumbent by his bringing a quare impedit, yet it is but a thing in action, and when he hath granted the advowson over, the grantee cannot have this thing in action. It is only in more modern times, we believe, that the benefice is said to be "voidable." In 2 Gibson's Codex, 906, in a note (1), it is said to be "voidable; " but that word is used as an explanation of the former part of the note. In the very modern cases of Betham v. Gregg (2), and Apperley v. Bishop of Hereford (3), the word "voidable" is used. In Halton v. Core (4) the *word "voidable" is coupled with the words "perhaps actually void." We do not, however, understand that, by the use of this word "voidable," it is intended that any previous step is necessary before the patron presents; for there is no authority whatever for such a position. It means merely that, if the patron does not elect to present, the incumbent may hold the living it does not mean that the living is full as against the patron, in the mean time. : It cannot well be that the living is full as relates to the patron, and that the presentation itself determines the interest of the clerk; because it is clear that the presentation must be when the church is already void, and proceeds upon that assumption. An authority for this position has been before cited; and Lord Coke, in Harris v. Austen (5), citing Smale's case, 17 Edw. III. 59 (6), distinctly says, the church ought to be void before he can present; for, if the church be voidable, no presentation can be made. Rud v. The Bishop of Lincoln (7) is another authority that the right to present implies that the church is then void. The result of all these authorities is that, upon institution (1) Vol. 2, tit. xxxvii. ch. 1, note (z) (2nd ed.). (2) 38 R. R. 449 (10 Bing. 352, 359). (3) 9 Bing. 686. (4) 35 R. R. 373 (1 B. & Ad. 558). (6) Year B. Mich. 17 Edw. III. (7) Hutton, 66. ALSTON v. ATLAY. [ *311 ] ALSTON v. ATLAY. [ *312 ] to the second living, the first is void as to the patron, but not so as to incur a lapse without sentence of deprivation and notice by the ordinary, or, at least, until notice by the ordinary; and, if void as to him, he cannot deal with the fallen right of presentation at all it is a personal inalienable right. The second question, whether the want of a notice of the cession makes any difference, is readily disposed of. If the right to the fallen presentation be a personal *right, disannexed from the advowson, it is clear that want of knowledge of the vacancy by the patron cannot alter the quality of that right: it cannot make a personal thing real: it will not reannex it to the advowson, any more than want of notice of rent being in arrear (which bears the closest analogy to the subject-matter under consideration) would enable the vendor of a reversion to transfer the rent in arrear with the reversion. The only point of view in which it could be important is with reference to the rights of the grantee of the advowson, as against the grantor, arising out of their contract. For these reasons we are all of opinion that the judgment of the Court of King's Bench should be reversed. Judgment reversed. 1837. June 13. [313] (ERROR FROM THE KING'S BENCH.) WRIGHT . DOE D. SANDFORD TATHAM. (7 Adol. & Ellis, 313-408; S. C. 2 N. & P. 305; 7 L. J. (N. S.) Ex. 340.) THE judgment of the Exchequer Chamber in this case, where the Judges, on an equal division of opinion, affirmed the judgment of the King's Bench, was affirmed by the House of Lords in 1838. The case will be reported at that stage in the Revised Reports, from 5 Cl. & Fin. 670.] IN THE QUEEN'S BENCH. TAYLOR v. DEVEY AND GRAHAM. (7 Adol. & Ellis, 409-416; S. C. 2 N. & P. 469; W. W. & D. 646; 1 Jur. 892; 7 L. J. (N. S.) M. C. 11.) Plea, to trespass for breaking and entering plaintiff's dwelling-house, that the house was in the parish of B., in which there was an immemorial custom for all the parishioners to go through the house, upon their perambulations of the parish boundaries, on the Thursday in Rogation week, every third year; and justification under the custom. Issue being joined on a traverse of the custom, and a verdict found for the defendants: Held, on motion for judgment non obstante veredicto, that it could not be assumed, on this plea, that the house stood on the boundary; and that the custom was therefore bad, as pleaded. Entries in the parish books, recording the fact that the perambulations had taken a particular line, would not be evidence upon such an issue. TRESPASS for breaking and entering the plaintiff's dwellinghouse, making a disturbance there, and continuing, &c., and breaking doors and locks, &c. Plea, *that the said dwellinghouse now is, and at the said times when &c. was, and from time whereof &c. hath been, situate within, and parcel of, the parish of St. Bridget, otherwise St. Bride, in the city of London: that, from time whereof &c., there hath been, and at the said times when &c. there was, and now is, within the parish of St. B., a certain ancient and laudable custom there used and approved, that is to say, that, during all the time aforesaid, it hath been, and still is, lawful for all and every the parishioners, for the time being, of the parish of St. B., to go through the said dwelling-house in which &c., upon their perambulations of the boundaries of the parish of St. B., upon Thursday in Rogation week in every third year: and that, from time whereof &c., the parishioners, for the time being, of the parish of St. B. have used and been accustomed, in the exercise of the custom aforesaid, to go through the said dwelling-house in which &c., upon their perambulations of the boundaries of the parish of St. B., upon Thursday in Rogation week in every third year; wherefore the said defendants, being then and there two parishioners of the parish of St. B., on Thursday in Rogation week, in the year 1833 aforesaid (being then and there a third year), in the exercise of the custom aforesaid, went through the 1837. Nov. 25. [ 409 ] [410] |