Incapacity, &c. fore fuch Perfons, in fuch Courts or Places, as the abrogated Oaths ought to have been taken; and under the fame Penalties, Forfeitures and Difabilities, for Neglect or Refufal. But fee the following Directions by the Statutes of King George I. and King George II. 19. The new Oaths are thefe. A. B. do fincerely promise and fwear, that I will be faithful, and bear true Allegiance to his Majefty King George II. So help me God. 20. I. A. B. do fwear, that I do from my Heart abhor, deteft and abjure, as impious and heretical, that damnable Doctrine and Pofition, that Princes excommunicated or deprived by the Pope, or any Authority of the See of Rome, may be depofed or murdered by their Subjects, or any other whomfoever. And I do declare, that no foreign Prince, Perfon, Prelate, State or Potentate, bath or ought to have any Jurifdiction, Power, Superiority, Pre-eminence, or Authority, Ecclefiaftical, or Spiritual within this Realm. So help me God. 21. By Stat. 1. Geo. 1. Seff. 2. c. 13. he is also to take and subscribe the above Oath and the Abjuration Oath, which being of confiderable Length, we fhall not fwell this Work with it; the rather because the Officers have it ready at Hand in all the proper Courts. And by Stat. 2 Geo. 2. c. 31. this is to be done in one of the four great Courts at Westminfer, at any Time before the End of the next Term after he fhall be admitted into or enter upon fuch Benefice, &c. or fhall take and fubfcribe the faid Oaths as aforesaid, at any Time before the End of the next Quarter Seffions, of the County, City or Place, where fuch Perfon fhall be or refide after he shall be admitted into, or enter upon any fuch Benefice, &c. Perfons beyond the Seas are to perform this within four Months after their Arrival in England. 22. Persons who neglect or refuse to take and subscribe the Oaths, as by the Statutes in the 20th Section, shall be ipfo facto judged incapable and difabled in Law to all Intents and Purposes whatsoever, to have, occupy or enjoy fuch Office, &c. or any Profits appertaining thereto, and fuch Office, &c. fhall be void. And if fuch Perfon be convicted of exercising such Office, &c. after fuch Neglect or Refufal, upon any Information, Presentment or Indictment, in any of the King's Courts at Weftminfler, or at the Affizes, he fhall be difabled from thenceforth to fue or use any Action, Bill, Plaint, or Information in any Court of Law, or to profecute any Suit in any Court of Equity, or to be a Guardian of any Child, or Executor, or Administrator of any Perfon, or capable of any Legacy, or Deed of Gift, or to be in any Office in Great Britain, or to vote at any Election for Members of Parliament, and shall forfeit Five hundred Pounds, to be recovered by any Action, &c. at W'eflminfiler. 23. The 23. The faid Courts must adminifter thefe Oaths to Perfons who tender themselves, and the proper Officer is to have two Shillings and no more from each Perfon. The Course at Weft minster is, that none, except Perfons of high Quality, trouble the Chancery on this Occafion: The other three Courts have appointed two fwearing Days each, in every Week, and in each Court they swear all that come, the first and last Days of Term. The fwearing Days are as follow: Monday and Thursday the King's Bench; Tuesday and Friday the Common Pleas; and Wednesday and Saturday the Exchequer. 'Twas thought good to mention thefe Things, because it is indecent for Perfons of an ordinary Degree to trouble the great Courts, except in their Courfes, which in one or other of them every Day of the Term affords, except Holidays. N. B. Schoolmasters and private Tutors are to take these Oaths of Allegiance, Supremacy and Abjuration, as above directed, and the Severity of the Penalties is fufficient to deter all Men from a Neglect of this Sort. pro 24. Note; In order to take a Benefice of the greater Value, Capacity to take it is fit to remember the Stat. 13 Eliz. c. 12. which good Benefice. vides, that none shall be admitted to any Benefice with Cure of Souls of the Value of thirty Pounds in the King's Books, unless he be a Bachelor of Divinity or leaft, or a Preacher licensed by fome Bishop, or one of the Universities of this Kingdom; and if not fo qualified, his Inftitution is to be void. 25. A Performance of all thefe Requifites, viz. Reading, Oaths, &c. upon taking one Living, will not fuffice for taking another, but must be repeated. 26. A Lapfe is when the Ordinary, the Metropolitan, or Lapfe. the King, acquire a Right to collate or prefent to a Church, at firft by the Neglect of the Patron to present to it within fix Months after Avoidance: 2dly, The Bishop neglecting, it devolves to the Archbishop; and on the like Neglect in him, to the King. This Time is computed by the Kalendar, according to the Ecclefiaftical Computation; and not at 28 Days to each Month, as in Cafes at the Common Law; and the Day in which the Church becomes void, is not reckoned for one. 27. The Patron must take Notice, on Peril of a Lapfe, of Who to take the Church being void by Death, Creation, or Ceffion; but Notice of it. if by Refignation, or Deprivation by Canon Law, he muft have Notice from the Ordinary, and the fix Months are computed from fuch Notice. If the Avoidance is caused by a temporal Crime, as Treafon, &c. or by an Act of Parliament, the Patron is to take Notice at his Peril; unless fuch A&t provides that he shall have Notice, as is done in the Statutes follow ing, viz. 13 Eliz. c. 12. Stat. 31 Eliz. c. 6. 14 Car. 2. c. 4. Stat. 13 & 28. If a Patron Prefents his Clerk before the Bishop has collated, though the fix Months are expired, the Lapfe is cured, and the Presentation is good. When a Quare impedit is depending, a Lapse may incur, if the Bishop was not named in the Writ, therefore the Practice is to make him a Party. A Lapfe may incur against an Infant or Feme Covert, and, Note, as is faid before, §. 9. an Infant of what tender Age foever, figns his Presentation in Person, and not by Guardian. There are many other Rules concerning this Doctrine, which would be too prolix for this Treatife to contain. Readers who have particular Nicety in their Cafes, are to read Books wrote exprefly on this Subject; or (which is much fafer) take the Affiftance of learned Counfel. 29. It may be proper to add fome Cafes of Advowfons in Mortgage. A. being feifed in Fee of Lands, and of an Advowfon in Grofs, by Leafe and Release conveyed the Lands to Trustees in Fee, to raise a Sum for Brothers and Sifters; and afterwards by Leafe and Release (bearing Date before the former, but executed after) conveys the fame Lands, and by Indenture conveys the Advowson to Serjeant Selby, and his Heirs. Afterwards A. grants the next Avoidance to B. and dies, and C. his Heir, brings his Bill against Selby to be let into a Redemption; Selby infifted that he was an abfolute Purchafor; but upon hearing, decrred that he was only a Mortgagee, and that C. fhould ftand in the Place of A. and be admitted to redeem, &c. afterwards D. articled for the Purchase of the Lands and Advowson, but the Account was not then fettled by the Mafter; the Church becomes void, B. prefents, Selby also prefents, and D. prefents. Decreed that Selby the Mortgagee is only a Trustee, a Truftee for the Mortgagor, and for his reprefentative, and for his Grantee: Selby fhall prefent fuch Perfon as B. fhall name. Gally v. Serjeant Selby in Can. Comyns 343, &c. 30. The Defendant was a Mortgagee, and in Poffeffion; the Plaintiff brought a Bill to redeem, and had a Decree accordingly before the Account taken, the Church became void, and the Mortgagee prefented. Upon the Plaintiff's Petition, the Chancellor ordered that he fhould revoke his Prefentation, and prefent fuch a Perfon as the Mortgagor, or his Vendee, (for he had contracted to fell) should appoint: The Reporter adds, 2. how this Revocation is to be; for I think La common Perfon can only variare præfentando, but not revoke his Prefentation, though the King may. Prec. in Ch. 71. Jory v. Cox. 31. The Defendant having mortgaged the Manor of Thunderley, to which an Advowson was appendant, to the Plaintiff, who who brought the Bill to foreclofe, the Church became void; the Defendant moved the Court for an Injunction to stay the Proceedings in a Quare Impedit brought by the Plaintiff. Per Cur': Although the Defendant Dawling hath no Bill, yet being ready, and offering to pay the Principal, Intereft and Cofts, if the Plaintiff will not accept his Money, Interest fhall ceafe, and an Injunction to Bay Proceedings in the Quare Impedit; for the Mortgagee can make no Profit by prefenting to the Church, nor can account for any Value in refpect thereof, to fink or leffen his Debt, and the Mortgagee therefore in that Cafe, until a Foreclosure, is but in the Nature of a Trustee for the Mortgagor; and the like Order was made between Fory and Cox, where the Defendant had an Injunction against the Plaintiff to ftay his Préfenting to a Church, that became vacant pending the Suit. 2 Vern. 401. Amburft v. Dawling. 32. Samuel Gardiner the Plaintiff's Father, being poffeffed of a long Term for 99 Years of the Advowson of Eckington, made a Mortgage thereof to the Defendant by. way of Affignment of the Term, upon Condition to be void upon Payment of the Mortgage Money and Intereft at the End of the Year, and there was a Covenant in the Mortgage Deed, that on every Avoidance of the Church the Mortgagee fhould prefent: Several Years after the Mortgagor died. It was admitted by the Lord Chancellor and by the Counsel on both Sides, that if there be a Mortgage made of a Manor, and an Advowfon appendant, before the Mortgage is foreclofed (though the Mortgagee be in Poffeffion) yet the Mortgagor fhall prefent if the Church becomes void, for the Prefentation is to be prefumed to yield no Profit, and confequently. cannot be accounted for, nor go towards Satisfaction of the Mortgage; but the Principal Cafe was faid to differ, nothing being mortgaged here but the Advowfon, fo that the Mortgagee could have no other Satisfaction than by providing for a Child, Relation or Friend, on the Advowfon's becoming void, and the rather for that it was the exprefs Agreement in the Mortgage Deed, that as often as the Church fhould become void, the Mortgagee fhould prefent, which exprefs Agreement would be good even in Cafe of a Mortgage of a Manor with an Advowfon appendant; and this was still ftronger, as it was the Cafe of a perifhing Term, where every Presentee or Incumbent would have an Eftate for Life in the Church; to which the Court, though it gave no Opinion, yet feemed to incline. But it appearing, that this Bill against the Mortgagee and his Presentee was brought feven Months after Institution, Lord Chancellor difmiffed the Bill, declaring that as a Quare Impedit was confined to the fix Months after the Death of the laft Incumbent, fo the Bill feeking to compel the Defendant te to refign, and confequently to deprive him of his Living, Who a Rector. The Original of 1. CHA P. III. Of Rectors. Reftor, fo called, quafi Gubernator Ecclefia, of old Times, was the Parfon of a Parish where there was no Vicarage endowed, and as fuch was intitled, pleno jure, to all the Glebe, Tithes, both great and fmall, and all other Church Dues arifing or growing due within his Parish. A to called', old 2. But latterly, fince Appropriations began, is taken for the Parfon of a Parish where there is a Vicarage endowed; in which Cafe, he is generally intitled only to the great, and the Vicar to the fmall Tithes, and other Church Dues arifing and growing due within the Parish. 3. This Diftinction at firft took Place when Patrons appropriated their Tithes to Monafteries, by which Means the Monks took the Tithes, and fent out fome of their Convent to officiate the Cure without any, or at moft, a very small fettled Maintenance; by which Means, the Cure being but poorly ferved, the Bishop took Care that the Rector's Place fhould be fupplied by one of the Secular Clergy, to whom the Rector, or the Convent, fhould allow fome Portion of the fmall Tithes for his Maintenance; and this was called a Vicar. 4. And fometimes the Rector, with proper Confent, had Power to intitle a Vicar in his Church to officiate under him, and this was often done; by which Means two Perfons were instituted |