Commendams of dif ferent degrees. Commenda could not present again till the next avoidance, and in such case the church does not become void in consequence of the dispensation which prevents the avoidance, neither does the commendam destroy the effect of a prior grant by the patron, and where the advowson is in common so that patrons present in turns, the prerogative presentation does not pass for the turn of the otherwise lawful patron; for the law which ordains that the first benefice shall be void by the acceptance of the second is thus dispensed with, as is the law which ordains that when a parson is made a bishop, or translated to a new see, his other benefices shall be void, for those laws were made by ecclesiastical policy, and therefore the same policy may dispense with them. But the law which prohibits tort or injury to third persons cannot be dispensed with, and therefore the benefice which is once void, and the next avoidance come to the patron, cannot be taken away, and occupied by any such licence or faculty. (1) Dispensations in commendam are of different degrees. The temporary commendam, or the commenda temporalis. temporalis, arose from the natural consequence (*) Calland V. Trower, 6 T. R. 439. Rex v. Cyprian Horsefall and R. Wall. Dav. R. 77. 2 Hen. Black R. 324. of a certain period being allowed the patron to present to the vacant benefice, namely, six months after avoidance, from which time a lapse incurs, and is merely sequestration of fruits till the patron presents. (') This commendam gives no title to the church, although the commendatory be by commission allowed to gather the profits or to supply or cause the cure to be supplied; it is grantable by every ordinary for tempus semestre, who may sequester the profits of the respective churches. (2) Such commendatory non est prælatus nec maritus ecclesiæ, nec facit fructus suos sed administrator tantum et custos ecclesiæ, until a sufficient incumbent is provided. (3) Hence this species of commendam is commonly When granted when the patron does not present an granted. able or proper person, or when the church is litigious (4), and such incumbent pays no first First fruits. fruits. (5) months. The commendam retinere may be temporary, May be for for years, or months, as if a person has a bene- years or fice and takes a bishoprick which would void the benefice, and obtains a dispensation in order that (*) Colt and Glover v. The Bishop of Coventry, Hob. R. 144. (2) The King v. Cyprian Horsefall, Dav. R. 82. (3) Dav. R. 82. (4) Rex v. Cyprian Horsefall, Dav. R. 82. (5) Anon, Palm. R. 350. Temporary retinere may he may hold the benefice for three years, he remains still the same parson of the same benefice, in no less estate than before, and there is no injury done either to the church or to the patron, for though it be damnum yet it is absque injuria, and when the three years are past, according to Hobart, the benefice voids, as it should have done at first if there had been no dispensation (1); but if the bishop dies or is translated before the expiration of the three years, the patron presents. A commendam retinere which is temporary, commendam and when the precise time is then expressed and be renewed. limited in the dispensation, may be also renewed or prolonged; that is, before the original incumbency ceases by the expiration of the first dispensation, but not after, a second dispensation may be granted to prevent the avoidance and continue the incumbency.: . It is said by Hobart, that a commendam retinere is improperly called a commendam, but only a faculty of retention, and a continuation of the benefice in the same person and state wherein it was, notwithstanding something intervening; for my own benefice cannot be commended unto me, and it is clear that the canon (*) Colt v. The Bishop of | Woodley v. The Bishop of Coventry, Hob. R. 156. Vid. | Exeter, Cro. Jac. 692. law meant by this term was only with regard to the second benefice taken de novo, by way of custody, or commendam, and (to prevent the voidance of the first) not taken by way of institution; so that it was no more than committing to the incumbent of one church the cure and revenues of another, either for a time limited, as six months, (which time the patron had to consider of a proper clerk) that the church might be taken care of, or (with the consent of the patron) to the end chiefly that such incumbent might be better supported; the first of which, namely, the care of the church during the vacancy, is now answered by sequestration of the benefice, and the grant of the second or the profits of the vacancy is rendered impracticable either by the bishop or patron, or both, by the statute 28 Hen. VIII. c. 11. which gives the profits of the vacation to such person as shall be thereunto next presented, promoted, instituted, inducted, or admitted; which profits before the said act belonged either to the church, and so were in the disposition of the patron and bishop, or to the ordinary or other person, to whom by custom they appertained, and so by the previous consent of such person might be yielded to the commendatory. But the next incumbent being a person uncertain cannot give such consent, and consequently the revenues of vacancies, since the making of the said act, can P The perpetual commendam. not be given, which seems to be the true reason of the utter disuse of that sort of commendams with regard to presbyters, though as to bishops it still continues in favour of the prerogative royal. (1) The perpetual commendam is during the life of the commendatory, and cannot be for a less time. It has full words to take and receive a benefice without institution, and is the most perfect kind of all, giving licence to enjoy the fruits of the benefice, and unite them in proprios usus. Commendatorius perpetuus fructus recipit, confert locat et omnia alia facit, sicut habens titulum, et commenda perpetua non potest revocari. (*) It amounts to a collation or provision containing ample words to take and receive a benefice void of the gift or presentation of the patron, and enter into it without institution and induction, and to take the profits as rector in commendam. (3) The real possession in the parsonage continues by virtue of the dispensation, and the difference between a commendam for life, and a present (*) Wats. Cl. L. 205. Gib. | Cyprian Horsefall, Dav. R. Cod. tit. 37. ch. 2. 955. (2) Woodley v. The Bishop of Exeter, Cro. Jac. 692. Hob. R. 141. The King v. 76. 81. 83. (3) Colt and Glover v. The Bishop of Coventry, Hob.153. Dav. R. 83. |