Incumbent died, or resigned, during this Time, the Church had been void by such Death or Resignation, and had debarred the King of his Prerogative: The Incumbent still remains Incumbent for the Time, by Force of his first Presentation, and so the Dispensation doth prevent the Avoidance: He is not in by Force of any Title which the Dispensation gives him, but of his old Title. Jones 91, 161. Vaughan 18.
Not by the Act of Parliament.—3. Then 'twas argued that the Act of Parliament for making this new Parish did not alter the Case. 'Twas said, that the making of this a Rectory in this Manner, doth make it subject to this Prerogative; and that it was by no Means the Intent of the Act to debar the Prerogative. It is made a Parish and Rectory, such as others are, subject to the Ecclesiastical Laws, as well as any other Benefice, under the Obligation to Residence, and liable to the Common Jurisdiction and Censure of the Ordinary; and 'tis to be made vacant by the same Ways and Means, as other Livings are; the Words Death, or any other Avoidance, prove it to be so: Lapse will prevail upon this Rectory; and that cannot be, but because 'tis made a Rectory, and Presentative. It cannot be doubted, but that the next Avoidance might have been granted over by the Bishop of London before any Avoidance was.
Suppose the Bishop of London had died, and this Promotion had happened, should not the King have presented by Reason of the Temporalities; and yet that is as much out of the Words of the Act, as this is? As to its being a Donative, 'twas said, That the present Rector doth not come in by Donation; and tho' 'tis true, That the King cannot present to a Donative upon such an Occasion; the Reason is, because the Promotion doth not make a Vacancy of the Donative, it doth not make a Cession; the Parson is not subject to Censures as other Rectors are; he is still in by Reason of the Institution of the Founder; so that Nothing can be inferred from thence. Suppose the Incumbency of a Donative had been immediately turned into a Rectory, would not that have subjected it to this Prerogative: 'Tis admitted, That the Promotion of the Rector did make an Avoidance; then was cited Prince's Case, 8 Rep. Then suppose it a Donative as to Dr. Tennison, at the same Time that the Church becomes vacant, the Patronage vests; and then the King's Prerogative shall take place, either eodem Instanti, or before: But here the Right of Patronage did vest immediately by the Act; he that is to present when the Rectory becomes void, he is Patron: 'Tis like a Reversion granted cum acciderit, there is a present Interest vested; and there's no Reason why it should not be so, in Case of this Act of Parliament.
The Stat. of 12 Car. 2. for confirming of Livings, makes the then Possessors full and perfect Incumbents, as this doth: Were not these Benefices void, if the Parties were advanced to Bishop-[185]-ricks? And upon such Promotions did not the King present? Undoubtedly he did.
Then 'twas argued, That 'twas never the Intent of this Act to oust the King of this Prerogative; the first Intent was to make a Parish and establish a Rectory: That was the true Design. Suppose the Act had only vested the Advowson in my Lord of London, and had not mentioned my Lord Jermyn, would not this Prerogative have been consistent with the Right of Patronage? As to the Pretence that the Bishop is to present first; that is only to make a Partition: 'Tis an Explanation, That they should not have it in common, but by Turns. The Holding of Dr. Tennison was reckoned as one Turn, and the Bishop was to have the next. Besides, every Act of Parliament is to be construed according to the Subject Matter, and not further than the Act designs and intends: 'Tis plain, from the Nature of the Thing, That nothing was designed but to settle the Rectory, and establish the Manner of Presentation, according to the Agreement of the Parties: General Words shall not oust the King of his Prerogative, since he is not named, 3 Cro. 542. Moor 540. 7 Rep. 32. Plowd. 240. Hob. 146. Here are no Words which do import any Intention to restrain the King of that Right with respect to this, as he hath with respect to other Rectories. The King's Prerogative doth not interfere with their being two Parishes; this Prerogative must operate upon all presentative Livings, so soon as they are made so.
Judgment affirmed.—This can never be pretended to be partly Presentative and partly Donative; for Dr. Tennison was in by Act of Parliament as one pre-
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