Sivut kuvina

or freehold, is applicable not only to lands and other solid objects, but also to offices, rents, commons, and the like:a and, as lands and houses are tenements, so is an advowson a tenement; and a franchise, an office, a right of common, a peerage, or other property of the like unsubstantial kind, are all of them, legally speaking, tenements." But an hereditament, says sir Edward Coke, is by much the largest and most comprehensive expression: for it includes not only lands and tenements, but whatsoever may be inherited, be it corporeal or incorporeal, real, personal, or mixed. Thus an heirloom, or implement of furniture which by custom descends to the heir together with a house, is neither land, nor tenement, but a mere moveable: yet being inheritable, is comprised under the general word hereditament: and so a condition, the benefit of which may descend to a man from his ancestor, is also an hereditament."

Hereditaments then, to use the largest expression, are of two kinds, corporeal and incorporeal. Corporeal consist of such as affect the senses; such as may be seen and handled by the body: incorporeal are not the object of sensation, can neither be seen nor handled, are creatures of the mind, and exist only in contemplation.

Corporeal hereditaments consist wholly of substantial and permanent objects; all which may be comprehended under the general denomination of land only. For land, says sir Edward Coke, comprehendeth in its legal signification any ground, soil, or earth whatsoever; as arable, meadows, pastures, woods, moors, waters, marshes, furzes, and heath. It legally includeth also all castles, houses, and other buildings: for they consist, saith he, of two things; land, which is the foundation, and structure thereupon; so that if I convey the land or ground, the structure or building passeth therewith.

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tion in ejectment. 11 Coke, 55. In common acceptation it means an enclosed field, but in law it rather signifies the separate interest of the party in a particular spot of land, whether enclosed or not. 7 East, 207. Doct. and Stud. 30. If a man make a feoffment of a house" with the appurtenances," nothing passes by the words with the appurtenances, but the garden, curtilage, and close adjoining to the house, and on which the house is built, and no other land, although usually occupied with the house; but by a devise of a messuage, without the words "with the appurtenances," the garden and curti

e 1 Inst. 4.

c 1 Inst. 6.

lage will pass, and where the intent is apparent, even other adjacent property. See cases, 2 Saund. 401. note 2. 1 Bar. & Cres. 350.; see further as to the effect of the word "appurtenant," 15 East, 109. 3 Taunt. 24. 147. 1 B. & P. 53. 55. 2 T. R. 498.502. 3 M. & S. 171. The term furm, though in common acceptation it imports a tract of land with a house, outbuildings, and cultivated land, yet in law, and especially in the description in an action of ejectment, it signifies the leasehold interest in the premises, and does not mean a farm in its common acceptation. See post 318.

It is observable that water is here mentioned as a species of land, which may seem a kind of solecism; but such is the language of the law and therefore I cannot bring an action to recover possession of a pool or other piece of water by the name of water only; either by calculating its capacity, as, for so many cubical yards; or, by superficial measure, for twenty acres of water; or by general description, as for a pond, a watercourse, or a rivulet: but I must bring my action for the land that lies at the bottom, and must call it twenty acres of land covered with water. For water is a moveable wandering thing, and must of necessity continue common by the law of nature; so that I can only have a temporary, transient, usufructuary, property therein wherefore, if a body of water runs out of my pond into another man's, I have no right to reclaim it. But the land, which that water covers, is permanent, fixed, and immoveable: and therefore in this I may have a certain substantial property; of which the law will take notice, and not of the other.

Land hath also, in its legal signification, an indefinite extent, upwards as well as downwards. Cujus est solum, ejus est usque ad coelum, is the maxim of the law upwards; therefore no man may erect any building, or the like, to overhang another's land: and, downwards, whatever is in a direct line, between the surface of any land and the centre of the earth, belongs to the owner of the surface; (4) as is every day's experience in the mining countries. So that the word "land" includes not only the face of the earth, but every thing under it, or over it. And therefore, if a man grants all his lands, he grants thereby all his mines of metal and other fossils, his woods, his waters, and his houses, as well as his fields and meadows. Not but the particular names of the things are equally sufficient to pass them, except in the instance of water; by a grant of which, nothing passes but a right of fishing :8 (5) but the capital distinction is this, that by the name of a castle, messuage, toft, croft, or the like, nothing else will pass, except what falls with the utmost propriety under the term made use of; but by the name of land, which is nomen generalissimum, every thing terrestrial will pass.h

f Brownl. 142.

g Co. Litt. 4.

(4) As to the remedy for the infraction of this right, 11 Mod. 74. 130. 2 Burr. 1114. 1 Stark. Rep. 56.

(5) Or the right to use the water, as in the case of rivers and mill-streams. Twenty years exclusive enjoyment of the water in any particular manner by the occupier of the adjoining lands, affords a conclusive presumption of right in the party so enjoying it; and he may main

h Ibid. 4, 5, 6.

tain an action if the water be diverted from its course, so that the quantity he has thus been accustomed to enjoy is diminished, although the fishery may not be injured, 6 East, 208. 7 East, 195. 1 Wils. 175.; and he may legally enter the land of a person, who has occasioned a nuisance to a watercourse, to abate it. 2 Smith's Rep. 9. Com. Dig. Pleader. 3 M. 41.





AN incorporeal hereditament is a right issuing out of a thing corpo- heredita rate (whether real or personal) or concerning, or annexed to, or ex-ments deercisable within, the same. It is not the thing corporate itself, which may consist in lands, houses, jewels, or the like; but something collateral thereto, as a rent issuing out of those lands or houses, or an office relating to those jewels. In short, as the logicians speak, corporeal hereditaments are the substance, which may be always seen, always handled: incorporeal hereditaments are but a sort of accidents, which inhere in and are supported by that substance; and may belong, or not belong to it, without any visible alteration therein. Their existence is merely in idea and abstracted contemplation; though their effects and profits may be frequently objects of our bodily senses. And indeed, if we would fix a clear notion of an incorporeal hereditament, we must be careful not to confound together the profits produced, and the thing, or hereditament, which produces them. An annuity, for instance, is an incorporeal hereditament: for though the money, which is the fruit or product of this annuity, is doubtless of a corporeal nature, yet the annuity itself, which produces that money, is a thing invisible, has only a mental existence, and cannot be delivered over from hand to hand. So tithes, if we consider the produce of them, as the tenth [ 21 ] sheaf or tenth lamb, seem to be completely corporeal; yet they are indeed incorporeal hereditaments: for they being merely a contingent springing right, collateral to or issuing out of lands, can never be the object of sense that casual share of the annual increase is not, till severed, capable of being shewn to the eye, nor of being delivered into bodily possession.

Are of ten

Incorporeal hereditaments are principally of ten sorts; principally of ten sorts; advowsons, sorts. tithes, commons, ways, offices, dignities, franchises, corodies or pensions, annuities, and rents.

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I. Advow. sons. (1)

I. Advowson is the right of presentation to a church, or ecclesiastical benefice. Advowson, advocatio, signifies in clientelam recipere, the taking into protection; and therefore 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, 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 patron.c

This instance of an advowson will completely illustrate the nature of an incorporeal hereditament. It is not itself the bodily possession of the church and its appendages; 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 [ 22 ] corporeal possession be had of it. If the patron takes corporeal 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, (2) either oral 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

b Vol. I. pag. 112.

This original of the jus patronatus, by building and endowing the church, appears also to have been allowed in the Roman empire. Nov. 26. t. 12. e. 2. Nov. 118. c. 23.

(1) As to advowsons in general, see Com. Dig. Advowson, Quare Impedit; Bac. Ab. Simony; Burn E. L. Advowson; Cruise Dig. title, xxi. & see index 6 vol. tit. Advowson; Mirehouse on Ad


(2) This is erroneous, for "advowsons, merely as such (i. e. in gross), could never pass by oral grant without deed." Lord Coke says expressly, that "grant is properly of things incorporeal, which cannot pass without deed," (1 Inst. 9.) and

though before the statute of frauds, 29 Car. II. c. 3. any freehold interest in corporeal hereditaments might have passed by a verbal feoffment, accompanied with livery of seisin, (Litt. S. 59.) and by such a verbal grant of a manor, before the statute, an advowson appendant to it might have been conveyed; yet since that statute, the transfer must be in writing, and by deed. 2 Wood. 64. 1 Saund.


to nominate, to enter, and receive bodily possession of the lands and tenements of the church.



Advowsons are either advowsons appendant, or advowsons in Are appengross. Lords of manors being originally the only founders, and of course the only patrons, of churches, 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: 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. where the property of the advowson has been once separated from the property of the manor by legal conveyance, it is called an advowson in gross, or at large, and never can be appendant any more; but it is for the future annexed to the person of its owner, and not to his manor or lands.g

But or in gross.

sentative, (3)

Advowsons are also either presentative, collative, or donative: And are prean advowson presentative 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. (3)

d Co. Litt. 199.

g Ibid. 120.

An advowson collative is where the or collative.

e Ibid. 121.

(3) The right of presentation is the right to offer a clerk to the bishop, to be instituted to a church. Co. Litt. 120. a. 3 Cruise, 3. All persons seised in fee, in tail, or for life, or possessed for a term of years of a manor to which an advowson is appendant, or of an advowson in gross, may present to a church when vacant. Although this is a right, considered of great value, as a provision for relations, a pledge of friendship, or what is its true use and object, the reward of learning and virtue; yet the possession of it never can yield any lucrative benefit to the owner, as the law has provided that the exercise of this right must be perfectly gratuitous. The advowson itself is valuable and saleable, but not the presentation when the living is void. 1 Leon. 205. Therefore the mortgagor shall present when the church is vacant, though the advowson alone is mortgaged in fee, for the mortgagee could derive no advantage from the presentation in reduction of his debt, 3 Atk. 599. Mirehouse, Adv. 150, 1.; so, though the assignees of

h Ibid.

1 Ibid. 307.

a bankrupt may sell the advowson, yet,
if the church be void at the time of the
sale, the bankrupt himself must present
the clerk, Mirehouse, 156.; and if an
advowson is sold when the church is void,
the grantee cannot have the benefit of the
next presentation; and it has been doubt-
ed, whether the whole grant is not void,
Cro. Eliz. 811. 3 Burr. 1510. Bla. Rep.
492. 1054. Amb. 268.; though, proba-
bly, there would be no objection to the
grant of an advowson, though the church
is vacant if the next presentation be
expressly reserved by the grantor, espe-
cially as it has been decided that a con-
veyance of an advowson, though it may
be void for the next presentation, yet
may be good for the remaining interest,
when it can be fairly separated from
the objectionable part. 5 Taunt. 727. 1
Marsh. 292. An advowson in fee in
gross, is assets in the hands of the heir,
3 Bro. P. C. 556.; but it is not extendible
under an elegit, because a moiety can-
not be set out, nor can it be valued at
any certain rent towards payment of

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