Assise. ASSISE is a writ that lieth where any man is put out of his lands or tenements, or of any profit to be taken in a certain place, and so disseised of his freehold. Of which there are four kinds : 1. Assise of novel disseisin; which is, where tenant in feesimple, fee-tail, or for term of life, is put out and disseised of his lands or tenements, rents, common of pasture, common way, or of an office, toll, or the like. 2. Assise of mort d'ancestor; which lieth where a man's ancestor, under whom he claimeth, died seised of lands, tenements, rents, or the like, that were held in fee; and after such ancestor's death, a stranger abateth. 3. Assise of darrein presentment; which is, where a man [106] and his ancestors have presented a clerk to a church, and afterwards, the church being void, a stranger presents his clerk to the same church, whereby the person having right is disturbed. 4. Assise de utrum; which lieth for a parson against a layman, or a layman against a parson, for lands or tenements doubtful, whether they be lay fee, or free alms belonging to the church (n). Audience. THE Archbishop of Canterbury had formerly his Court of Audience; in which at first were dispatched all such matters, whether of voluntary or contentious jurisdiction, as the archbishop thought fit to reserve for his own hearing. They who prepared evidence, and other materials to lay before the archbishop, in order to his decision, were called auditors. Afterwards this court was removed from the archbishop's palace, and the jurisdiction of it was exercised by the master official of the audience, who held his court in the consistory place at St. Paul's. But now the three great offices of official principal of the archbishop, dean or judge of the peculiars, and official of the audience, are and have been for a long time past united in one person, under the general name of dean of the arches; who keepeth his court in Doctors Commons Hall (0). The Archbishop of York hath in like manner his Court of Audience (p). Augmentation of Small Livings by the Revenue of the First Fruits and Tenths-see First Fruits. Avoidance, what. Avoidance. 1. AVOIDANCE, as opposed to plenarty, is, where there is a want of a lawful incumbent on a benefice, during which vacancy [107] the church is quasi viduata, and the possessions belonging to it are in abeyance (q). But in [It has been observed, under Advowson, that as the right of patronage in an advowson may pass by the grant of the patron, so the right of presenting to an avoidance, to the next or subsequent avoidances, or to as many as may occur within a limited period, may be conveyed by the same means. no case can a grant of the actual vacancy be made by a subject, though it may by the crown (r); nor can it be released by one joint tenant of the next avoidance to another during the vacancy (s). If the king grants an advowson in gross, the void turn passes with the grant; but not, unless specifically mentioned, in a royal grant of an advowson appendant (t). The king's prerogative presentation (u) only extends to the first avoidance; if he neglect this, he has no title to the second (x). See, however, "The Queen v. The Bishop of Lincoln, and Ligh, the incumbent. Quare impedit. The case was, after lapse incurred to the queen, the bishop being patron, doth present, and afterwards the successor of the bishop certifieth against this incumbent, that he hath refused to pay the tenths; and then the bishop collated the defendant, who was inducted. The queen brings a quare impedit; and it was adjudged that the queen hath not lost her presentation; but if the incumbent had died, it were otherwise; for here the church became void by the incumbent's own act; so if he had resigned, or been deprived; and it would be inconvenient if the queen should lose her presentment by the incumbent's own act (y)." An avoidance being a part of the advowson, which is incorporeal, must be conveyed by deed (z). Such avoidance must be future, and must be specified; so that, if through a prior act of the grantor it be unavailable, the grant will not serve for another avoidance (a). It is said, however, that where a church is (q) God. Introd. 42. (s) [Cro. Eliz. 174, 600; 3 Burr. (t) Hobart, 140; Cro. Jac. 197; (r) [Beverley v. Cornewall, Cro. Eliz. 44; Woodley v. The Bishop of Exeter, Cro. Jac. 691.] (y) [Cro. Eliz. 120.] (a) [1 Inst. 399 a; Williams v. The Bishop of Lincoln, Cro. Eliz. 790.] void, and a grant of the next avoidance is made, the grant extends to the next that falls after the church is filled, and not to the present turn, "ut res magis valeat quam pereat (b)." Where the grantee of the next avoidance is evicted by a higher title, as by statute, he loses his right to present (c); but where a man granted the third presentation, his wife being entitled to it as part of her dower, the grantee will have the next presentation after the wife, because the wife's title arose from an act of the law, which shall not operate to the prejudice of the grantee (d). Generally, it seems, that where the enjoyment of the grant is affected by an event subsequent to the grant, the right of the grantee is not lost, though it may be postponed (e). But the grant of the next avoidance may be defeated by the act of the grantee, either by his omission to present at the proper turn, or by having assigned his right to another before the avoidance took place (ƒ).-ED.] An avoidance happeneth several ways: 2. The most usual and known means by which any spiritual By Death. promotion doth become void, is by the act of God; viz. by the death of the incumbent thereof. And such avoidance doth commence from the day of the death of such incumbent. And the patron is obliged to take notice of it at his peril, and not to expect an intimation from the ordinary (g). But perhaps the six months are only to be reckoned from the time the patron could reasonably be supposed to have notice of the incumbent's death (h); especially if the incumbent die out of the realm (i). 3. By resignation; which is the act of the incumbent. And By Resignathis being necessarily made into the hands of the ordinary, and tion. not valid but as admitted by him: the avoidance consequent upon it is to be notified by the ordinary to the patron (k). 4. By cession, or the acceptance of a benefice incompatible; By Cession. which also is the act of the incumbent. In which case, the benefice, if of the yearly value of 81. or above, is void by act of parliament, and no notice is needful; if under 81. a year, it is void by the canon law, and the patron may either present his clerk immediately, and require admission, or may sue in the Court Christian for sentence of deprivation, and wait for notice to be given thereupon, or the ordinary himself may ex mero officio proceed to deprivation, and then give notice. In like Void and manner, when a parson possessed of ecclesiastical benefices of voidable. any kind is promoted to a bishoprick, and there is no dispensation to hold them in commendam with the bishoprick; in such (b) [Jenk. 236, pl. 1; And. 15.] (c) [Co. Litt. 378 b.] (d) [Co. Litt. 378b; 3 Cruise, 10.] (e) [See Whincombe v. Bishop of Winchester, Hobart, 165.] (f) [Woodley v. Bishop of Exeter, Cro. Jac. 691; 2 Roll. Abr. 45, 1. 37.] VOL. I. (g) Wats. c. 1; Archbishop of York (i) 2 Roll. Abr. 363. K7 The Sale of case, upon the consecration of the bishop they become void, and the right of presentation belongs to the crown (l). A prebendary of Ely was made dean; query, whether the king or bishop should present (m). [In the case of Halton, clerk, against Cove, clerk (1830)(n), the Advowson it was decided, Lord Tenterden delivering the judgment of the of a Church, the Incum bency of which is voidable, was illegal. Distinction between void. able and void destroyed by c. 106. court, that when an incumbent of a living with cure of souls, valued at less than 81. a year in the king's books, accepted another benefice, without having a dispensation to hold both, but continued in possession although the first became void "de jure," (that is, by the canon law,) and where the patron had presented another clerk, and recovered in a quare impedit against such incumbent, that this clerk after institution and induction was not entitled by the statute 28 Hen. 8, c. 11, s. 3, (which gives the profit of every benefice during vacation or avoidance to the next incumbent), to recover the profits either from the time of his being presented, or from the suing out of the quare impedit; the avoidance contemplated by the statute being an avoidance de facto. In the case of the Rev. V. J. Alston v. B. Atlay, in the year 1836, Lord Denman, C. J., Justices Littledale, Patteson, and Williams, severally delivered their judgment, that the sale of the advowson of a church which is full is not simoniacal by reason of the incumbency being at the time of sale voidable at the election of the patron; and that a conveyance under such sale will pass the right of immediate presentation: but their decision was reversed by the Exchequer Chamber. See title Plurality, vol. iii. p. 119 (o). [I have thought it expedient to insert these two recent and leading decisions upon the distinction between void and voidable, because they may possibly be useful in the discussion of analogous questions, and because the 1 & 2 Vict. c. 106, which destroys for the future this distinction, as far as pluralities are concerned at least, is not retrospective in its operation. That statute makes distance, population, and yearly value, the joint criteria by which the legality of holding two preferments or cathedral benefices is to be determined, and enacts that where these are not in accordance with the provisions of the act, the being instituted into, or licensed to a second benefice or preferment, shall render the previous preferment or benefice ipso facto void, "any law, statute, canon, usage, &c. notwithstanding." [Under the old law, it appears that induction, as well as institution, were requisite, in order that lapse of time should incur against the patron, unless notice were given him, which was not necessary where there had been induction (p). This does not seem to be affected by the new statute.-ED.] By law in Ireland, no person can take any dignity or bene (1) Gibs. 792; Wats. c. 2. 256; Serjt. Hill's MS. notes. (0) [7 Ad. & Ell. 311; S. C. 6 Nev. & Mann. 686.] (p) [Wolferstan v. Bp. of Lincoln, 2 Wils. 200; 3 Burr.1504; S. C. in err.] fice there, till he has resigned all his preferments in England : by which resignation the king is prevented of the presentation, Which is said to have been agreed, in the case of the Bishops of Durham and Salisbury, upon the promotion of Dr. Rundle to the bishoprick of Derry in the year 1735 (q). [ 108 ] tion. 5. By deprivation; which is the act of the ordinary: which By Depriva voidance being created by sentence in the Ecclesiastical Court, must be notified to the patron; but takes not place presently, if an appeal is depending (r). 6. By the act of the law; as in case of simony; not sub- By the Act of scribing the articles or declaration; or not reading of the articles the Law. or the common prayer. All which being voidances by act of parliament, are to be understood (with regard to the times of the commencement of such voidances, and the notice of them) according to the directions and limitations of the respective acts (s). between Void [By 1 & 2 Vict. c. 106, s. 58, it is enacted, that if a benefice, Distinction sequestrated for disobedience to the bishop's monition or order, and Voidable issued under the provisions of the act, shall continue so seques- destroyed by trated for one whole year, or be twice so sequestrated within c. 106. two years, it shall become void.-ED.] 7. By the 25 Edw. 3, st. 3, c. 8, Whereas the prelates How tried. have shewed and prayed remedy, for that the secular justices do accroach to them cognisance of voidance of benefices of right, which cognisance and the discussing thereof pertaineth to the judges of holy church, and not to the lay judge; the king will and granteth, that the said justices shall from henceforth receive such challenges made or to be made by any prelate of holy church in this behalf, and moreover thereof shall do right and reason." And the distinction which hath obtained is this: If it come in question, whether the church be full of an incumbent or not, the same shall be tried by the certificate of the bishop, who best knows of the institution; but if the issue to be tried be, whether the church be void or not, the same shall be tried by a jury at the common law, unless the issue to be tried be upon some special act of avoidance, for then the same shall be tried by the certificate of the bishop, so as the especial cause of the avoidance be spiritual (†). [8. By not complying with the requisites. Vide post, Be: netice, 177 (u). [By 1 & 2 Vict. c. 106, s. 72, on avoidance of a benefice not having a fit house of residence, the diocesan may raise money by mortgage of glebe, &c. to build one.-ED.] (q) Vide 17 Vin. Abr. 371, pl. 8. Gibs. 792; 2 Inst. 631. Gibs. 792; [see the case already referred to, 1 Consist. Rep. 424.] (t) Hughes, c. 13; Gibs. 793; Co. Litt. 344 a. (u) Serjt. Hill's MS. Notes. |