presentative, son has been once separated from the property of the manor by legal conveyance (8), it is called an advowson in gross, or at large, and never can be appendant any more; but is for the future annexed to the person of its owner, and not to his manor or lands (g). Advowsons are also either presentative, collative, or donative (h). An advowson presentative (9) is where the patron (g) Co. Litt. 120. saying the grant of the manor was cum pertinentiis, the advowson would pass; in Willion v. Berkeley, 1 Plowd. 243, it is said, on the other hand, that the statute was only a declaration of the common law; and that, although the grant of every subject is taken most strongly against himself, and most favourably towards the grantee, it is a maxim of the common law, that the king's grant is to be taken most strongly against the grantee; which maxim applies to the subject in question as well as any other. How ever this may be, it is quite clear, that since the statute, a grant from the king of a manor, even with its appurtenances, will not pass an appendant advowson, which is not expressly specified in the grant. (Chancellor of Cambridge v. Walgrave, Hob. 127, 164.) (8) For instance, if the manor to which an advowson is appendant, be conveyed away in fee simple, excepting the advowson; or, vice versa, if the advowson be conveyed away without the manor to which it was appendant, the advowson becomes in gross. (Fulmerston v. Stuard, Dyer, 103 b.) If, upon partition between two coparceners, a manor be allotted to one, and an advowson appendant thereto to another, the advowson becomes, for a time at least, severed from the manor; but if by the death of one coparcener without issue, the two estates become re-united by law, the advowson which was once severed is now appendant again. (Sir Moyle (h) Ibid. Finch's case, 6 Rep. 64 b. Hartop v. Dalby, Hetley, 14.) The dictum in the text, therefore, which intimates that an advowson which once becomes in gross, can never again be appendant, must be qualified. (See Gibson's Codex, 757.) And our author could not mean, that a temporary severance, by a lease for life or years of a manor, with the exception of an appendant advowson, will have the effect of totally destroying its appendant qualities: the contrary doctrine has been established. (Hartox v. Cock, Hutt. 89; Jenk. Cent. 310, pl. 91.) And where several parties have a right to nominate and present to a church in turns, the advowson may be appendant for one turn, and in gross for another. (Illisfield case, Dyer, 259 a, pl. 19.) (9) Formerly, presentation to a church might have been made by parol (Co. Litt. 120): but, since the statute of frauds, presentation by a subject must be in writing. As presentations by the king, however, are not expressly mentioned in the statute, the privilege of presenting by bare parol still remains to the crown, but is not very likely to be exercised: the usual mode of presentation on the part of the crown is by letters patent. (Mallory's Quare Impedit, 83.) The king may revoke his presentation at any time before the induction of his presentee. (Wright v. the Bishop of Norwich, 1 Leon. 156.) So, if the king has title to present, by lapse, hac vice, and he does present, but his hath a right of presentation to the bishop or ordinary, and moreover to demand of him to institute his clerk, if he finds him canonically qualified; and this is the most usual ad vowson. An advowson collative (10) is where the bishop collative, and patron are one and the same person: in which case the bishop cannot present to himself; but he does, by the one act of collation or con*ferring the benefice, the whole that is [ 23 ] done in common cases by both presentation and institution. * An advowson donative (11), is when the king, or any sub- or donative. clerk dies before induction, the king shall present again; for the king ought always to have the full and complete effect of the thing which is due to him. (Holt's case, 9 Rep. 132; Brockham's case, Litt. Rep. 135.) But after presentation, admission, and institution, the church is full against every subject, before induction. (Hutchins v. Glover, Cro. Jac. 463.) Before admission, a subject may vary his presentation, so far as to present a second clerk, and the ordinary may admit which of the two he pleases (Mallory's Quare Impedit, 84): but whether the first presentation may be absolutely revoked, seems not well settled. (Stoke v. Sykes, Latch, 191, 253.) As to the grounds upon which the ordinary may be justified in refusing to accept a presentation, see Specot's case, 5 Rep. 58, and Mallory's Quare Impedit, 87; see also post, Vol. III. p. 246; ante, note (3) to this chapter. By the common law, all patrons have six months allowed to determine on their presentation, before a lapse will occur. (Doctor and Student, chap. 36, part 2.) And a caveat may be entered by the patron to prevent the bishop from hastily admitting a clerk presented by one who is not in truth the patron. (Degge, part 1, c. 3; see post, p. 277.) (10) As the Bishop collates to benefices which are pleno jure in his own gift, so he doth to those which fall to him by lapse. (Johnson's Eccles. L. 81; Watson, c. 15.) (11) Watson says, (in the 15th ch. of his Comp. Inc.) not only a church or chapel, but all sorts of ecclesiastical preferments, may be donative. Bishopricks were donative until the time of king John. Some prebends are still donative; as those in the Royal Chapels at Windsor and Westminster, which the king may confer by patent; and his clerk may take possession without any institution or induction. A nomination, however, to a perpetual curacy is not strictly a donative; for, though it requires neither presentation, institution, nor induction, the curate must be authorized by a license from the bishop before he can legally officiate; whereas possession by donation receives its full effect from the sole authority of the donor. (Bowell v. Milbank, 1T. R. 401, n. The King v. Bishop of Chester, 1¦T. R. 403.) Degge, (in his Pars. Couns. p. 1, c. 13,) informs us, that "donatives are within the statute against simony; and where they have cure of souls, they are likewise within the statute of pluralities." And the same doctrine as to simony is judicially laid down in Bawderock v. Mackallar, Cro. Car. 331; and Carver v. Pinkney, 3 Lev. 83. Mr. Wooddeson, however, (in his Lect. Vol. I. p. 330,) observes, the words of the statute apply only when the donative is the first living taken; if it be the second, as it requires neither institution nor induction, the case is out of the statute. (See 21 Hen. VIII. c. 13.) Still, by the canon law, the incumbent will be ject by his license, doth found a church or chapel, and ordains that it shall be merely in the gift or disposal of the patron; subject to his visitation only, and not to that of the ordinary; and vested absolutely in the clerk by the patron's deed of donation, without presentation, institution, or induction (i). This is said to have been anciently the only way of conferring ecclesiastical benefices in England; the method of institution by the bishop not being established more early than the time of Archbishop Becket, in the reign of Henry II. (k). And therefore, though Pope Alexander III. (7) in a letter to Becket, severely inveighs against the prava consuetudo, as he calls it, of investiture conferred by the patron only, this however shows what was then the common usage. Others contend that the claim of the bishops to institution is as old as the first planting of Christianity in this island, and in proof of it they allege a letter from the English nobility to the pope in the reign of Henry the Third, recorded by Matthew Paris (m), which speaks of presentation to the bishop as a thing immemorial. The truth seems to be, that where the benefice was to be conferred on a mere layman, he was first presented to the bishop, in order to receive ordination, who was at liberty to examine and refuse him; but where the clerk was already in orders, the living was usually vested in him by the sole donation of the patron; till about the middle of the twelfth century, when (i) Co. Litt. 344. (k) Seld. Tith. c. 12, s. 2. (1) Decretal, 1. 3, t. 7, c. 3. prevented from holding both benefices, unless he has a dispensation. (Ayliffe's Parerg. 418; Lindw. lib. 3, tit. 5, c. 2.) A donative does not lapse in consequence of remaining void, unless it be so specially provided for in the foundation (see post, p. 276): the bishop may, however, by spiritual censures, compel the patron to nominate a clerk. (1 Inst. 344; Wats. c. 12; Fairchild v. Gayre, Yelv. 61.) But if a donative be augmented by Queen Anne's bounty, it will lapse in like manner as presentative livings. (1 Geo. I. st. 2, c. 10.) The prero gative of the crown in presenting to benefices where it has promoted the last incumbent, does not extend to donatives ; for the promotion doth not make a vacancy of the donative, it causes no cession, the parson is still in by the authority of the patron. (Bishop of London v. Attorney Gener ral, Show. P. C. 184.) Presentation to a donative by a stranger, and admission and institution thereupon, are acts not merely voidable but of no effect ab initio. (1 Inst. 344. See Vol. III. p. 250, n.) * the pope and his bishops endeavoured to introduce a kind of feodal dominion over ecclesiastical benefices, and, in consequence of that, began to claim and exercise the right of institution universally, as a species of spiritual investiture. However this may be, if, as the law now stands, the true patron once waves this privilege of donation, and presents to the bishop, and his clerk is admitted and instituted, the *advowson is now become for ever presentative, and shall [ 24 ] never be donative any more (n) (12). For these exceptions to general rules and common right are ever looked upon by the law in an unfavourable view, and construed as strictly as possible. If therefore the patron, in whom such peculiar right resides, does once give up that right, the law, which loves uniformity, will interpret it to be done with an intention of giving it up for ever; and will therefore reduce it to the standard of other ecclesiastical livings. II. A second species of incorporeal hereditaments is that II. Tithes: of tithes; which are defined (13) to be the tenth part of the (n) Co. Litt. 344; Cro. Jac. 63. (12) Degge, 205, is in accordance with the text; and though in the case of Ladd v. Widdows, (2 Salk. 541; 3 Salk. 140; Holt's Rep. 259;) a donative was held not to be destroyed by one, or by several, presentations; still, it does not clearly appear from the reports, that the dictum is to be understood generally; on the "contrary, as the court, in the case cited, assigns as the reason for the judgment then given, that the donative was created by letters patent; the inference should rather seem to be, that with respect to donatives which are such merely by prescription, by repeated interruptions (if not by a single voluntary one) the prescriptive title would be lost. (13) The definition proposed in the text is not strictly accurate. Ayliffe (in his Parerg. Ju. Can. 504) observes, "tithe is a certain quota or portion of moveable goods; I say a quota or certain portion, because tithe is not in all places the tenth part, but various according to the custom of parishes." predial, mixed, personal. increase, yearly arising and renewing from the profits of lands, the stock upon lands, and the personal industry of the inhabitants: the first species being usually called predial, as of corn, grass, hops and wood (o) (14): the second mixed, as of wool, milk, pigs, &c. (p), consisting of natural products, but nurtured and preserved in part by the care of man (15); and of these the tenth must be paid in gross : the third personal, as of manual occupations, trades, fisheries, and the like; and of these only the tenth part of the clear gains and profits is due (q) (16). (0) 1 Roll. Abr. 635; 2 Inst. 649. (p) Ibid. (g) 1 Roll. Abr. 656. not at all apply. (See the 4th ch. of forty years has accustomably used to Toller on Tithes.) (14) Wood is one of the instances to show that predial tithe may be payable in respect of an article of which the renewal is not annual. Silva cædua is titheable when it is felled; and, between the falls several years commonly (and a great many years, not unfrequently) intervene. (Page v. Wilson, 2 Jac. & Walk. 523; Walton v. Tryon, 1 Dick. 245; Chichester v. Sheldon, Turn. & Russ, 249.) (15) Burn, Watson, Wood, Degge, Toller, and other writers on tithe, speak of mixed tithe, not as something bearing a mixed character, partaking partly of the qualities of predial, and partly of the qualities of personal tithe; but as tithe arising, not immediately from the ground, but mediately from animals which have their nourishment from the ground. Many of the subjects of mixed tithe seem to be most correctly included in the last description, though the appellation "mixed," would lead one, à priori, to expect that our author's definition would be found most correct. Perhaps, neither definition is positively incorrect, as far as it goes; but both may be incomplete. (16) By the statute of 2 & 3 Edw. VI. c. 13, s. 7, it is enacted, that 66 every person who heretofore within pay personal tithes, shall, yearly at Easter, pay for his personal tithes the tenth part of his clear gains." This act greatly curtailed the claim to personal tithe; the 11th section of the statute preserved to the church, however, the right of tithe of fish, taken in the sea. According to Lindw. 195, and Wood, b. 2. c. 22, this tithe is payable where the fisherman hears divine service and takes the sacrament. (See also the Anonymous case, Cro. Car. 264; The King v. Carlyon, 3 T. R. 386; Scarborough v. Hunter, Bunb. 43; Gwavas v. Kelynack, Bunb. 256; and Anon. Hetley, 13; but if, as appears to be the case, it is a tithe due by custom only, custom must determine to whom it ought to be paid. Stat. 27 Hen. VIII. c. 20.) With respect to fish taken in rivers, it seems settled, that tithes are not payable except by custom. (Dawes v. Huddlestone, Cro. Car. 339.) And of fish taken out of ponds, not for sale, but for consumption in the proprietor's own family, no tithe is due. (Bohun, 135.) It was decreed in the House of Peers, on appeal from the Court of Exchequer, that the tithes of a mill are personal tithes, against several dicta in the books; and that, in consequence of their being personal tithes, |