The remedies for the subtraction of tithes given by the law of England to the clergy were sufficiently ample. [Trrugs.] With respect to actions and suits for recovery of lands or rents by parsons, vicars, or other spiritual corporations sole, the 3 & 4 Will. IV. c. 27, § 29, subjects them to the period of limitation of two successive incumbencies, together with six years after the appointment of a third person to the benefice, or in case of this period not amounting to sixty years, then to the full period of limitation of sixty years.
Having thus shown how possession of the different kinds of benefices in Eng land is acquired and maintained, and what are the principal legal incidents of such possession, it remains to consider how benefices may be vacated or avoided. And this may happen several ways : 1. By the death of the incumbent. 2. By resignation, which is made into the hands of the ordinary, except in the case of donatives, which must be resigned into the hands of the patron, who alone has jurisdiction over them. The resignation must be absolute, unless it be for the pur pose of exchange, in which case it may be made on the condition that the ex change shall take full effect. Where two parsons wish to exchange benefices, they must obtain a licence from the ordi nary to that effect; and if the exchange is not fully executed by both parties during their lives, all their proceedings are void. (See Burn, Eccles. Law, tit. "Exchange.") 3. A benefice may be avoided by the incumbent's being pro moted to a bishopric ; but the avoidance in this case does not take place till the actual consecration of the new prelate. The patronage of the benefice so vacant belongs for that turn to the king, except in the case of a clergyman beneficed in England accepting an Irish bishopric : for no person can accept a dignity or benefice in Ireland until he has first re signed all his preferments in England ; so that in this case the patron, and not the king, has the benefit of the avoidance. The avoidance may be prevented by a licence from the crown to hold the bene fice in commeudam. Grants in commen dam may be either temporary or per petual. They are said to be derived from an ancient practice in the Roman Catho lic church, whereby, when a church was vacant, and could not be immediately filled up, the care of it was commended by the bishop or ,other ecclesiastical su perior to some person of merit, who should take the direction of it until the vacancy was filled up, but without med dling with the profits. This practice,
however, in process of time being abused for the purpose of evading the provisions of the canon law against pluralities, be came the subject of considerable com plaint, and of some restraints, by the authority of popes and councils, and par ticularly of the celebrated Council of Trent in the sixteenth century. (See Father Paul's Treatise on Benefices.') A benefice may be granted in commendam to a bishop after consecration, but then the patron's consent must be obtained, in order to render the commendam valid. If the incumbent of a donative be pro moted to a bishopric, no cession takes place, but it seems that he may re tain the donative without a commen dam. (Viner's Abr. tit. K. 6.) 4. If an incumbent of a benefice with cure of souls accepts a second benefice of a like nature without procuring a dispen-. sation, the first, by the provisions of the canon law, is so far void, that the patron may present another clerk, or the bishop may deprive ; but till deprivation no ad vantage can be taken by lapse. The stat. 21 Henry VIII. c. 13, which was repealed by 1 & 2 Vict. c. 106, provided that where a person, having a benefice of the value of 8/. per annum or upwards, ac cording to the valuation of the king's books, accepted any other, the first should be adjudged void, unless he obtained a dispensation in conformity with the pro visions of the statute. And dispensations not in conformity with the statute were declared void, and heavy penalties were imposed upon persons endeavouring to procure them. But by virtue of such dis pensations, spiritual persons of the king's council might hold three benefices with cure, and the other persons qualified by the statute to receive dispensations might each hold two such benefices.
The persons who might receive dispen sations were, the king's chaplains, those of the queen and royal family, and other persons who were allowed by the statute to retain a certain number of chaplains, and also the brethren and sons of all tem poral lords, the brethren and sons of knights, and all doctors and bachelors of divinity and law admitted to their de grees in due form by the universities. The privilege was not extended to the brethren and sons of baronets, as the rank of baronet did not exist at the time when the statute was passed.