Sivut kuvina

or ecclesiastical benefice. Advowson, advocatio, signifies in clientelam recipere, the taking into protection; and there

Codex, 757, and in 1 Instit. 17 b, 18; all remedy. The same rules hold in all but Lord Coke adds, there may be two these several respects, as between the several patrons, (and two several in- mortgagor and mortgagee of an adcumbents), of one church; and one vowson; the mortgagee, as having the part of the church, as well as of the pa- legal estate, ought to present; (Croft rish allotted to one, and the other part v. Powell, Comyns, 609); the mortgagor, to the other: in which case each right as entitled to the equity of redemption, of advowson is termed advocatio medie, ought to nominate; but he will lose tatis ecclesiæ; which he distinguishes his right by the same laches which from medietas advocationis ecclesia, would bar a trustee. (Gardiner v. both as to the nature of the right, and Griffith, 2 P. Wms. 405. Jory Cox, the proper remedy for a disturbance Prec. in Ch. 71). The mortgagee even thereof.

of a bare advowson, and who, conseThe right of advowson regularly in- quently, can have no other satisfaction cludes, not only the right of presenta- for his money lent than by presentation, but the right of nomination to a tion, must nevertheless present the nochurch. These two rights, however, minee of the mortgagor. (Mackenzie may exist in different persons. A per- v. Robinson, 3 Atk. 559. Gubbins son seised of an advowson may make v. Creed, 2 Sch. & Lef. 218. Dimock's a valid grant, binding himself to pre- case, 2 Freem. 274). sent the nominee of the grantee, when Mr. Cruise also says (in his Dig. the church shall next become vacant; tit. 21, c. 2, s. 41), and cites Wats. and, for that turn, the grantee will, for Inc. 106, as his authority, that "it has most purposes, be considered as patron been held, if a patron of a church is a of the church. (Throckmorton v. Tracy, bankrupt, and the church becomes void 1 Plowd. 157; Hare v. Bickley, 2 Plowd. before the advowson is sold under the 529; Calvert v. Kitchen, Lane, 36). commission, the bankrupt shall present Where the legal estate in an advow- or nominate to the church." This stateson is vested in trustees, they have the ment is rather vague: we have just seen right of presentation in them; but the that the rights of presentation and of right of nomination is in the cestui que nomination are distinct things: the trust; (Boteler v. Allington, 3 Atk. 458; bare right to present is merely a mi. Mutter v. Chauvel, 1 Meriv. 493); but nisterial interest; (Sir George Shirley it appears from the cases just cited, if v. Underhill and Bursey, Moor, 894); the trustee of an advowson does pre- but, as we have also seen, the party in sent, and the cestui que trust, (not being whom the legal estate is vested, must entitled to some legal exemption taking present; therefore, after the execution him out of the usual rule as to the ope- of the usual bargain and sale to his asration of time), neglects to bring his signees, the bankrupt could not do the quare impedit, or file a bill in equi- ministerial act of presentation; there ty, within six months after the time of seem better grounds for allowing him such usurpation, he will be barred of to nominate: for, as the actual vacancy


fore is synonymous with patronage, patronatus: and he who has the right of advowson is called the patron of the church. For, when lords of manors first built churches on their own demesnes, and appointed the tithes of those manors to be paid to the officiating ministers, which before were given to the clergy in common, (from whence as was formerly mentioned (b), arose the division of parishes, the lord, who thus built a church, and endowed it with glebe or land, had of common right a power annexed of nominating such minister as he pleased (provided he were canonically qualified) to officiate in that church, of which he was the founder, endower, maintainer, or, in one word, the

раtron (c).

This instance of an advowson will completely illustrate the nature of an incorporeal (4) hereditament. It is not itself the bodily possession of the church and its appendages, (6) Vol. i. p. 112,

lowed in the Roman empire. Nov. 56, (c) This original of the jus patrona- t. 12, c. 2. Nov. 118, c. 23. (and see lus, by building and endowing the Gibson's Codex, 756.—Ed.). church, appears also to have been al

could not be sold for the benefit of the faling v. Westfaling, 3 Atk. 464). creditors, (Bishop of Lincoln v. Wolfor- A guardian cannot present to an adstan, 3 Burr. 1510, 1512,) and as the vowson, because he cannot account bankrupt's estate is vested in bis assig- with his ward in respect thereof. The nees solely for the purpose of paying infant ward must present. 1 Inst. 89 a. his debts, it might reasonably be con- 3 Inst. 156. Shopland v. Ryoler, Cro. tended, that a beneficial interest, which Jac. 99. Arthington v. Coverley, 2 Eq. could not be applied for that purpose, Ca. Ab. 520). (Rennell v. The Bishop of Lincoln, 3 The right of presentation to a living Bing. 236; Gulley v. The Bishop of is mere matter of property; but the Exeter, 4 Bing. 297), should be en- actual possession of a living is not a joyed by the bankrupt; for who could mere matter of property, but also dehave a better claim to the disposal of it? pendant upon the discretion of the or(Gibson, 794). An advowson, (setting dinary, who may see just reasons for aside the case of an actual vacancy) is refusing a presentation. (Newdigale v. clearly assets for payment of debts, and Helps, 6 Mad. 133. 2nd Inst. 631. will be directed by the Court of Chan- Mallory's Quare Impedit, 87). cery to be sold for that purpose. (Ro- (4) See ante, note (6) to chap. 2; binson v. Tong, 3 P. Wms. 401; Rip- and note (1) to the present chapter. ley v. Waterworth, 7 Ves. 447; WestVOL. II.


[ * 22 ]

but it is a right to give some other man a title to such bodily possession. The advowson is the object of neither the sight nor the touch; and yet it perpetually exists in the mind's eye, and in contemplation of law. It cannot be delivered from man to man by any visible bodily transfer, nor can corporal possession be *had of it. If the patron takes corporal possession of the church, the church-yard, the glebe, or the like, he intrudes on another man's property; for to these the parson has an exclusive right. The patronage can therefore be only conveyed by operation of law, by verbal grant, either oral (5) or written, which is a kind of invisible mental transfer: and being so vested it lies dormant and unnoticed, till occasion calls it forth, when it produces a visible corporeal fruit, by entitling some clerk, whom the patron shall please to nominate, to enter, and receive bodily possession of the lands and tenements of the church.

Advowsons are either advowsons appendant, or advowsons in gross. Lords of manors being originally the only



(5) A little slip which our author lory's Quare Impedit, 42, but the autho(following Lord Coke, 1 Inst. 120 a) rities are all on one side. As a distinct has made here, has been noticed by all incorporeal hereditament an advowson is his annotators. Blackstone, in all pro- incapable of that delivery of possession bability, was thinking only of advow- which, in the old times, was held to give, sons appendant, and of the mode by and perhaps did give, sufficient notoriewhich they might have been conveyed ty to the transaction; other evidence, before the statute of frauds, (29 Cha. therefore, of the transfer of an advowson II. c. 3); up to which period, as the cor- was properly required. Even the next poreal hereditaments to which they avoidance of a church cannot be grantwere appendant might have passed by ed without a deed. (Crisp's case, Cro. a verbal feoffinent, with livery, the ap- Eliz. 164). As to the different modes pendant advowson would have passed by which such incorporeal hereditaby the same oral transfer. (Long v. ments as advowsons in gross may, at Hemings, 1 Leon. 208, and 4 Leon, the present day, be transferred, see 216; S. C. Cro. Eliz. 209. Vavasor's ante, note (1) to this chapter. An adcase,

2 Leon. 222). But our law vowson appendant may still be transnever permitted an advowson per se, ferred by any kind of conveyance or in gross, to be passed otherwise which transfers the manor or demesnes than by deed; there are some opin- to which it is appendant. (See a numions leaning the other way to be ber of cases relating to this matter colfound in the Year Books cited in Mal- lected in 1 Roll's Ab. 230-233).


founders, and of course the only patrons of churches (d), the right of patronage or presentation, so long as it continues annexed to the possession of the manor, as some have done from the foundation of the church to this day, is called an advowson appendant (e): and it will pass or be conveyed, together with the manor, as incident and appendant thereto, by a grant of the manor only, without adding any other words (F) (6). But where the property of the advow- or in gross; son has been once separated from the property of the manor by legal conveyance (7), it is called an advowson in gross,

(d) Co. Litt. 119. (e) Ibid. 121. (f) Ibid. 307.


(6) In Whistler's case, 10 Rep. 64, which an advowson is appendant, be it was agreed, that, before the statute conveyed away in fee simple, excepting de prærogativá, (17 Edw. II. st. 2, c. the advowson, or, vice versá, if the ad15), the rule stated in the text applied vowson be conveyed away without the universally to grants of the king, as manor to which it was appendant, the well as to grants of private persons; advowson becomes in gross. (Fulmerand that if the king had granted a ma. ston v. Stuard, Dyer, 103 b). If, upon nor to which an advowson was appen- partition between two coparceners, a dant, without making mention of the manor be allotted to one, and an adadvowson, or without saying the grant vowson appendant thereto to another, of the manor was cum pertinentiis, the the advowson becomes, for a time at advowson would pass; in Willion v. least, severed from the manor; but if Berkeley, 1 Plowd. 243, it is said, on by the death of one coparcener without the other hand, that the statute was issue, the two estates become re-united only a declaration of the common law; by law, the advowson which was once and that, although the grant of every severed, is now appendant again. (Sir subject is taken most strongly against Moyle Finch's case, 6 Rep. 64 b. Harhimself, and most favourably towards top v. Dalby, Hetley, 14). The dicthe grantee, it is a maxim of the com- tum in the text, therefore, which intimon law, that the king's grant is to be mates that an advowson which once taken most strongly against the gran- becomes in gross, can never again be tee; which maxim applies to the sub- appendant, must be qualified. (see Gibject in question as well as any other. son's Codex, 757). And our author However this may be, it is quite clear, could not mean, that a temporary sethat, since the statute, a grant from the verance, by a lease for life or years of king of a manor, even with its appur- a manor, with the exception of an aptenances, will not pass an appendant pendant advowson, will have the effect advowson, which is not expressly spe- of totally destroying its appendant quacified in the grant. (Chancellor of Cam- lities: the contrary doctrine has been bridge v. Walgrave, Hob. 127, 164). established. (Hartor v. Cock, Hutt. 89. (7) For instance, if the manor to Jenk. Cent. 310, pl. 91). And where


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 (8) is where the patron 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 advowson. An advowson collative (9) is where the bishop and patron are one and the same person: in which case the (8) Co. Litt. 120.

(1) Ibid.



several parties have a right to nominate the church is full against every subject, and present to a church in turns, the before induction. (Hutchins v. Glover, advowson may be appendant for one Cro. Jac. 463). Before admission, a turn, and in gross for another. (Ilis- subject may vary his presentation, so field case, Dyer, 259 a, pl. 19). far as to present a second clerk, and

(8) Formerly, presentation to the ordinary may admit which of the church might have been made by pa- two he pleases, (Mallory's Quare Imrol. (Co. Litt. 120), but, since the sta- pedit, 84): but whether the first pretute of frauds, presentation by a sub- sentation may be absolutely revoked, ject must be in writing. As presenta- seems not well settled. (Stoke v. Sykes, tions by the king, however, are not Latch, 191, 253). As to the grounds expressly mentioned in the statute, upon which the ordinary may be justithe privilege of presenting by barefied in refusing to accept a presentaparol still remains to the crown, tion, see Specot's case, 5 Rep. 58, and but is not very likely to be exercised: Mallory's Quare Impedit, 87; see also the usual mode of presentation on the ante, note (3) to this chapter. By the part of the crown is by letters patent. common law, all patrons have six (Mallory's Quare Impedit, 83). The months allowed to determine on their king may revoke his presentation at presentation, before a lapse will occur. any time before the induction of his (Doctor and Student, chap. 36, part 2). presentee. (Wright v. The Bishop of And a careat may be entered by the Norwich, 1 Leon. 156). So, if the patron to prevent the bishop from hasking has title to present, by lapse, hâc tily admitting a clerk presented by one vice, and he does present, but his clerk who is not in truth the patron. (Degge, dies before induction, the king shall part 1, c. 3). present again; for the king ought al- (9) As the Bishop collates to beneways to have the full and complete ef- fices which are pleno jure, in his own fect of the thing which is due to him. gift, so he doth to those which fall to (Holt's case, 9 Rep. 132. Brockham's him by lapse. (Johnson's Eccles. L. case, Litt. Rep. 135). But after pre- 81. Watson, c. 15). sentation, admission, and inst

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