bishop OF lincoln and whitehead v WOLFERSTAN grant of a advowson after  institution of the clerk to a second live be void u but no lapse incur till  after induction to the second discuss rennel v bishop oh Lincoln barn c Dowl r  Bli NS Cl f Moo S bing SC burr error from the common plea in quare hinder the  plaintiff Wolferstan show title and seize in Elizabeth Gresley sir Nigel  Gresley and Francis Vincent and that they by deed date November which he bring  into court grant the advowson of the north mediety of great sheepy come  Leicester to the plaintiff Edward Wolferstan his heir and assign and set forth  the statute Henry c wonder which enact that if any person have one benefice  with cure of soul of the vearly value of ten shall accept and take any other  with cure of soul and be institute and induct in possession of the same that  then immediate after such possession have the first benefice shall be adjudge  to be void and that the patron may present as if the incumbent have die or  resign that the say north I deity of great Sheepy be of the value of per annum  with cure of soul and that the incumbent thereof Thomas Gresley December  accept and take the rectory of great Searle in the same county and afterward  videlicet the say December be institute and induct to the same whereby the say  north mediety of great sheepy become vacant and that it belong to the say  Edward Wolferstan to present but that the bishop and say Whitehead disturb he  c the bishop in his plea disclaim all title but as ordinary and confess the  title and seize in Elizabeth Vincent sir Nigel Gresley and Francis Vincent but  say that the incumbent Thomas Gresley on October accept the rectory of seal  and be then institute to the same as by the say Edward in his declaration be  allege whereby the say north mediety of great sheepy become vacant and so  remain for six month that whereupon the right of collate devolve by lapse to  the say bishop as ordinary wherefore the say bishop after the say six month  collate thereto his clerk the defendant Whitehead Blackstone Whitehead in his  plea allege that he be parson imparsonee and that the church become void by  Thomas Gresleys acceptance of seal October and so remain till June when the  bishop collate he thereto to the bishop plea the plaintiff reply protest he  have no notice of the avoidance before December that on December and not  before Gresley be induct to seal and that within six month after videlicet  march he present Thomas hall his clerk and request the bishop to admit and  institute he which he refuse and afterward videlicet June collate the  defendant Whitehead to whitehead plea he reply to the same effect the bishop  in his rejoinder admit the induction of Gresley December and that the  plaintiff do present the say Thomas hall within six month after but that  before the say December videlicet on October the say Gresley accept and take  the say rectory of scale and be institute thereto whereby the say north  mediety of great sheepy become vacant and that the say hall do not within six  month after such vacancy or before the collation of Whitehead offer himself to  be institute and traverse that be do before the say collation of Whitehead  refuse to admit the say hall Whitehead in his rejoinder admit the induction of  Gresley December but say that great sheepy become vacant by his institution oc  ber before and remain so till June when the bishop collate by lapse the say  Whitehead and further that on October the plaintiff have nothing in the  advowson to both these rejoinder the plaintiff demurrer and assign many  special cause of demurrer and the defendant join in demurrer and after several  argument in c b the court give judgement for the plaintiff z Blackstone er p  Blackstone for the plaintiff in error the defendant below wave enter into the  plead till the counsel for the defendant shall rely on particular exception  but insist that if there be any defect in tb rejoinder the replica Blackstone  cion be previous have by introduce new matter which do not avoid the force of  the defendant plea videlicet the fact of induction without confess or deny the  fact of institution allege by the plaintiff below and in respect of the merit  he argue that when a church be void the advowson can be grant over as well for  the danger of simony as also because it be a choose in action a dyer jenk dyer  cro Elizabeth Bennet and bishop of Norwich ibidem baker and Roger and agard  and bishop of Peterborough Anders dyer more bendl which bold the law to be so  in respect of the present avoidance so a lease of the advowson for twentyone  year grant after vacancy be void for the present avoidance Stevens and Disley  and bendl the like of a grant of a advowson in fee leak and the bishop of  Coventry cro Elizabeth that when a church be void for six month and no  presentation offer the bishop may collate in right of lap e which be too clear  to need be support by authority that the church of great sheepy do actual  become void b that Gresleys institution to seal on saint October so as to  prevent any grant of the advowson and so as that the tenipus halfyearly b for  the bishop lapse do then begin to incur to be sure the word of the stat Henry  be upon institution and induction and yet in digby case Rep report more and  Goldsb under the name of robin and prince it be hold that institution alone to  a second make the first benefice void so that no dispensation will operate to  make they tenable together else a man may be institute to several benefice and  never induct but obtain a sequestration and so elude the statute this case  unanimous rule by all the twelve judge more and recognize as clear law hob if  then in these circumstance it be so void as not to be the object of a  dispensation it can be the object of a grant and if not present to within six  month the lapse to the bishop shall accrue for it be completely void else the  statute may be Blackstone elude by connivance of the patron and ordinary in  case the clerk defer his induction for if lapse do not accrue to the immediate  ordinary it can accrue either to the archbishop or the crown roll Abr c if a  clerk be only institute to the first live and afterward accept a second the  first be clear void so adjudge in common plea digby case Rep a plurality  therefore so as to cause a vacancy may commence by mere institution to one of  the live and it be indifferent in point of reason whether that one be the  first or the second live object that as institution be a matter of spiritual  cognizance notice must be give to the patron before lapse shall begin to incur  TO this I answer that as induction have in fact be have it shall relate back  to the time of institution it be allow that the patron must take notice of  induction he must know that institution have precede it and be bind to inquire  when that institution be give if no induction bad follow then if no lapse can  incur till notice of the institution the patron and ordinary may combine as  before observe to defeat the statute and put live of value upon the same foot  as those under which render a prior benefice only voidable and not actual void  for by the commonlaw which adopt the decree of the lateran Council upon the  clerk accept a second live the patron may present to the first be it of any  value whatever but no lapse can incur till the clerk be canonical deprive and  notice thereof give to the patron godb by the statute if of value the first be  Self facto void without any sentence of deprivation armiger and holland Rep  cro Elizabeth and the same be lie down dyer and no notice be requisite in this  case the avoidance be by Act of parliament and not by a act of deprivation in  shoot and Higden Vaugh it be say by the court that accord to digby case and  holland case institution to a second live so vacates the first that the patron  may present if be will but no lapse shall incur till deprivation Blackstone  and notice but if the first be of the value of or above the patron at his  peril must present so in case of avoidance for nonpayment of ten by stat Henry  c the patron must take notice at hisperils Watsod beside who be bind to give  notice not the bishop who institute to the second live for he be a entire  stranger to the first nor the bishop who be ordinary of the first live for he  be a stranger to the fact of institution to the second Blackstone er p and  therefore bishop Gibson say true cod that notice be only necessary where the  avoidance be occasion by a act between the incumbent and the ordinary of the  vacant live and by the rule of the commonlaw cro car cart where notice ought  to be give the law appoint who shall give it and if none be bind to give it  the party shall take notice at his peril Burlaid sir to go for the defendant  in error give up the point of title in his client in case the court can take  notice from the plead that the institution of Gresley to Seale be prior to the  grant of great sheepy to Mr Wolferstan but he insist that lapse do not begin  to incur till after induction to the second live and cite more Lyndewode from  whence the word of the statute Henry be copy and therefore the construction  must be the same that in agard and bishop of Peterborough issue be take on the  induction which show it be think to be the material point per cur you need not  labour that part of the question it have be determine over and over that the  second live be not accept so as to create a lapse till induction digby case  extend only to dispensation and be by no mean a general rule d Burland then as  to the first point we say it be not material aver in the plead that  institution be give on saint October but only under a scilicet which be not  traversable and any other day may be give in evidence previous to the d of  December for that be the material allegation that Gresley be institute before  the d December videlicet saint Blackstone October which specification be only  circumstance and if repugnant to the matter before allege be mere void and  shall be reject yely Skinn lie I I Mod that wh iteheads rejoinder be plain a  departure e by allege for the first time that the plaintiff have nothing in  the advowson t that if the replication be informal the plea be worse by not  confess traverse or avoid the fact lie in the declaration that the live become  void the d December but mere state a new fact the vacancy by institution on  the saint October as the plaintiff have before allege whereas he allege no  such thing and of this opinion be the court that the time of institution be  not material aver in though rejoinder be only under a scilicet and that the  plea be have for the reason give by the sergeant and therefore they affirm the  judgement unless cause show before the end of the term afterward Blackstone  show for cause that the true distinction be that where the time at which a  fact happen be immaterial and it may as well have happen at another day there  if allege under a scilicet it be absolute nugatory and be therefore not  traversable and if it be repugnant to the premise it shall not vitiate the  plea but the scilicet itself shall be reject as superfluous and void but where  as in a question of lapse the precise time be the very point and gist of the  cause there the time allege by a scilicet be conclusive and traversable and it  shall be intend to be the true time and no other and if impossible or  repugnant to the premise it will vitiate the plea if true will support the  defence ff and this distinction he be prepare to support by authority  videlicet latch cro James stram cro Blackstone James yely latch and especial  Skinner and Andrews I sand and then though the plea be informal in other  respect yet if sufficient date appear on the plead the court will pick out a  good defence though the pleader happen to overlook it but by Wilmot and Yates  be when the plea be bad it be a mere nullity and from a nullity you can gather  nothing but the declaration which state a good title in the plaintiff stand  alone and unanswered therefore though this be a very hard case yet per tot cur  absent Dennison the judgement must be affirm u this be to be understand that  the grant be void only as to the presentation to the vacant turn and it be so  express in SC burr videlicet that a grant of a next presentation or of a  advowson make after the church be actual fall vacant be a void grant quoad the  fall vacancy S p per de grey CJ in barrett v Glubb post who say allude to the  marginal abstract of this case in burr that it be a inaccuracy to sa that the  court hold it be absolute a void grant greenwood v bishop of London taunt  marsh send for yet Lord Blackstone er p Hardwicke c in Giey v hesketh Ambl say  that the sale of a advowson during a vacancy be void at commonlaw wonder sect  extend to church curacy and chapel augment by queen whether bounty by g c S  ten that be accord to the valuation in the king book burn Ecc law that as to  the computation of which see Talbot v Linfield ante n a z will where the plead  be set out at length a Lord Mansfield and Mr Wilmot both say that the true  reason why a grant of a fall presentation or of a advowson after avoidance be  not good quoad the fall vacancy be the public utility and the better to guard  against simony not for the fictitious reason of its be then become a choose in  action burr b ante n a c burn Ecc law send for ed d for to a avoidance by h c  a induction into the second live be necessary by the express word of the Act S  and it will be unreasonable if it be not because the patron be at his peril to  take notice of such avoidance Rep b a for institution be a private act but  induction a act of notoriety but where the first live be not of the yearly  value of in the king book there the same will not be void by the statute but  only by the canon law and therefore no lapse will incur in this case without  notice Rep b but with notice it seem it will ib and it be resolve Rep b and as  appear by more agree to by all the other judge of England that it will be very  inconvenient if the first benefice shall not be void by institution to the  second by force of the canon there mention for then one may be institute to  diverse benefice with cure and no other can be present to any of they and  therefore in this last case the patron may present without notice if he please  ms serj hill the court of c p when this case be before they be clear of  opinion that the church be so void upon institution to the second live that  the patron may present immediate thereupon if he please but that the bishop  have no right to collate by lapse without give notice will institution be the  investiture of the spiritual part of the benefice and be give by the ordinary  to the clerk kneel before he in these word set up ten guide church parochial  de c et to have spear air et to take without effort spear thy et of me when  institute the clerk may enter on the parsonage house and glebe and take the  tithe but he can grant or let they till induction which be the investiture of  the temporal part and be perform by the archdeacon or his deputy give the  clerk corporal possession as by deliver to he the ring of the church door or  the bellrope to toll the bell similar to livery of seize e wms sand a Com dig  pleader f t N B the truth be that the pleader have never before observe the  flaw in the plaintiff title but original mean to try only the question whether  the institution or induction occasion the vacancy  Note by the reporter f Mr  sergeant William say that this difference take by Blackstone be well find wms  sand c see also I wms sand n Gunmakers comp v fall will Grimwood v trumpeting  TR r v Stevens east