vowsons, tithes, commons, ways, offices, dignities, franchises, corodies or pensions, annuities, and rents. sons 1. Advowson is the right of presentation to a church, or eccle- 1. Advow- siastical 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 Origin of 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 nature of. This instance of an advowson will completely illustrate the Incorporeal 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 can not be delivered from man to man by any visible bodily transfer, nor can corporeal possession be had of it. If [ 22 ] the patron takes corporeal possession of the church, the churchyard, 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 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 Are append b Vol. i., p. 109. This original of the jus patronatus, by building and endowing the church, (2) The late learned Vinerian professor, Mr. Wooddeson, has taken notice of this inaccuracy, and has observed that "advowsons, merely as such (i. e., in gross) could never, in any age of the English law, pass by oral grant without deed." (2 Woodd., 64.) Lord Coke says expressly, that "grant is properly of things incorporeal, which can not pass without deed." (1 Inst., 9.) But before the Statute of Frauds, 29 Car. II., c. 3, any freehold interest in corporeal hereditaments might have passed appears, also, to have been allowed in by a verbal feoffment, accompanied ant, in gross. 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 or in gross. only, without adding any other words. But 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 is for the future annexed to the person of its owner, and not to his manor or lands.g3 And are presentative, Advowsons are also either presentative, collative, or donative.h An advowson presentative is where the patron has 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 advowd Co. Litt., 119. e Ibid., 121. f Ibid., 307. (3) An advowson may, however, be disannexed from the manor for a term only, as where the separation is made by a person having only a particular estate (as for years, or for life) in the manor, or, being made by the owner of the fee-simple, it is made only for a term of years or for life. (See Burn, Eccles. Law, Advowson, s. 3; 6 Rep., 64, b; 3 Scott, 561.) An advowson may be appendant to land merely, as well as to a manor, as where the lord of a manor conveys land, parcel of the manor, with the advowson, which will then be appendant to the land, and will pass with it by a subsequent conveyance, although not named: except in the case of a grant by the crown. (Harg., Co. Litt., 121, b, n.; 1 Y. & C., 559.) Ibid., 120. h Ibid. salable, but not the presentation when the living is void. (1 Leon., 205.) And, therefore, if an advowson is mortgaged to secure a debt, as the mortgagee can make no profit by presenting to the church, or account for any value in respect of it, to sink or lessen the debt, he shall be bound in equity to present the mortgagor's nominee; although, if the mortgagee usurp the presentation, it shall be good, unless the mortgagor (being under no disability) take the proper steps to put it aside within six months, the period fixed by the stat. Westminster 2d, 13 Ed. I., c. 5. (3 Atk., 458, 559; Prec. Ch., 71; Comyn, 609; 2 P. Wms., 405; 2 Sel. & Lef., 218; 1 Meriv., 493.) In a court of law, of course, the mortga gor's right to have his nominee presented is not recognized. (Dick., 662.) So (4) All persons seized in fee, in tail, a trustee must present the clerk of the or for life, or possessed for a term of cestui que trust. (2 Atk., 483; 3 Ed., years, of a manor to which an advowson 458; 2 W. Bl., 1053; 1 Meriv., 493.) is appendant, or of an advowson in And so an infant may nominate and pregross, may present to a church when it sent to a benefice, for his guardian takes is vacant. Although this is a right nothing but that for which he can acwhich is salable, and is considered of count. (Co. Litt., 17, b, 89, a; 3 Burr., great value, as a provision for relations, 1514; 1 W. Bl., 440; 2 Eq. Ab., 520; 1 a pledge of friendship, or, what is its Fonbl. Eq., 84, n.) So, also, an advowtrue use and object, the reward of learn- son, though it was always assets for the ing and virtue; yet the possession of it payment of specialty debts (3 P. Wms., never can yield any lucrative benefit to 401; 3 Atk., 464; 7 Ves., 447), and the owner, as the law has provided that may now be sold under the decree of a the exercise of this right must be per- court of equity at the suit of a judgment fectly gratuitous, and so it will not pass creditor (stat. 1 & 2 Vict., c. 110, s. 13) under a demise of "commodities, emol- can not be extended or taken in execu uments, and profits." (Hob., 303.) tion for a debt. (2 Saund, 63, f.) And The advowson itself is valuable and though the assignees of a bankrupt may son collative is where the bishop and patron are one and the or collative, same person: in which case the bishop can not present to himself; but he does, by the one act of collation or conferring the benefice, the whole that is done in common cases by both [ 23 ] presentation and institution. An advowson donative' is when or donative. the king, or any subject 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. 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., 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 i Co. Litt., 344. Seld., Tith., c. 12, § 2. sell the advowson, yet, if the church be void at the time of the sale, the bankrupt himself must nominate the clerk. (Mirehouse, 156; 6 Geo. IV., c. 16, s. 77; 7 Scott, 667.) The grant of the presentation made after the church is actually vacant is void (Cr. El., 174,788); and so if an advowson is sold when the church is void, the grantee can not have the benefit of the next presentation; and it has been doubted whether the whole grant is not void. (Cro. El., 811; 3 Burr., 1510; Amb., 268.) But it is now settled that such a grant, even though simoniacal, is void only as to the next presentation. (2 Wils.. 174; 1 W. Bl., 490; 2 Id., 1054; 5 Taunt., 724.) A Jew may present to a living (7 Bligh, 322), but not a papist (12 Ann., st. 2, c. 14, s. 1; 11 Geo. II., c. 17; 10 Geo. IV., c. 16, s. 16; 7 Scott, 652); and by the Municipal Corporations Act 1 Decretal., 1. 3, t. 7, c. 3. (5 & 6 Will. IV., c. 6, explained by the (5) If the founder ordain that he and As to presentation by co-parceners, joint-tenants, and tenants in common, see Co. Litt., 186, b; 2 Saund., 116, b; 1 Ves. sen., 340; 10 B. & Cr., 584; 7 Scott, 652; 7 Sim., 257.) Destruction of donative. century, when the pope and his bishops endeavored 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 advowson, and then it is a chattel, and goes to the executor. (Dyer, 135, a; 7 Bligh, 256.) (6) The better opinion seems to be, that all advowsons were originally donative; the patron conferring the church, and all the temporalities annexed, by As soon as a vacancy happens, the investiture, without the necessity of any right of nomination (in case of a presentinstitution by the bishop. The clerk ative advowson) becomes a distinct right was not presented to the bishop, but in the nature of a chattel, separate from was at once invested with the tempo- the advowson, in the same manner as ralities by the patron; although, as is rent due is distinct from the rent charge said in the text, the spiritual character in fee in respect of which it became due. of the clerk was not complete unless he (2 Nev. & Per., 503.) The presentation then received, or had previously receiv- is the mode of enjoyment, the profit or ed, ordination (as to which now, see 13 rent of the estate, and, like the rent or & 14 Car. II., c. 4, s. 14, and 44 Geo. III., profit, belongs to the owner of the esc. 43). After the church became vacant, tate at the time it accrues, in the nature and until the patron chose to fill it, he of a personal chattel, distinct and severtook the profits of the benefice to his ed from the inheritance; it belongs to own use, and on his death they went to him, not as owner of the advowson, but his heir, there being no direct means of as an individual. (7 Bligh, 277.) Therecompelling him to fill the vacancy, but fore, a lessee of an advowson may preonly ecclesiastical censures. (See Yelv., sent after his term has expired to a va61; 2 Roll. Rep., 97; Mallory, Quare cancy which happened during the term Impedit, 35.) After a long struggle, the (Fitzh., N. B., Quare Impedit, 33, A; 2 Church succeeded, about the beginning Roll. Ab., 345); and if a person seized of the fourteenth century, in establishing in fee of an advowson presentative die almost universally throughout England during a vacancy, his executor shall prethe course of filling parochial churches by presentation to the bishop; and the practice of investiture by the lay patron was consequently discontinued. (Selden, Hist. Tithes, c. 12, s. 5.) At the same time the doctrine of lapse was introduced, which entitled the ordinary to collate a clerk to the benefice, if the patron neglected to present one within six months from the happening of the vacancy. But some donatives survived this innovation, and some were so created by the crown, or so established by their founders; and to these the law of A corporation sole can not take a chatlapse did not apply, but the patron still tel by succession (except by custom, or enjoyed the profits during a vacancy, in the case of the crown), and therefore, and might at any time take back the where an advowson presentative is vestbenefice by resignation from the incum- ed in an ecclesiastical person, and he bent. (See the learned judgment of dies during a vacancy, his executor (or, Littledale, J., 9 D. & Ry., 810; 7 B. & in case of a bishop, the queen, by her Cr., 113; Co. Litt., 144, a; 2 Eden, 360.) prerogative), and not the successor, shall The right of presentation on the next present. (7 B. & Cr., 113; 7 Bligh, 241, avoidance is part of the advowson, and, 280; Co. Litt., 388, a.) Where the same while the church is full, devolves with person is patron and incumbent, and the advowson on the heir (or, if the dies, his heir is to present (3 Lev., 47; advowson be limited for a term of years, 3 Buls., 47); but such patron and incumon the executor); but the right to the next presentation may, before the vacancy actually occurs, be severed from sent. (Com. Dig., Esglise (H. 2); 2 Wils., 150.) But in the case of a donative, as the heir is not compellable at common law to present, or affected by lapse, and may take the profits during the vacancy, such a right in the execu tor would be adverse to his interest; and this appears to be the foundation of the rule that gives the presentation to the heir, instead of the executor, upon the death of the patron of a donative during a vacancy. (2 Wils., 150; 7 B. & Cr., 151.) bent may devise the presentation. (1 Lev., 205; 2 Roll., 214; 6 Cruise Dig., 21; Mirehouse, 70.) the bishop, and his clerk is admitted and instituted, the advowson is now become forever presentative, and shall never [ 24 ] be donative any more ;n for these exceptions to general rules and common right are ever looked upon by the law in an unfavorable 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 forever; and will, therefore, reduce it to the standard of other ecclesiastical livings." mixed, II. A second species of incorporeal hereditaments is that of II. Tithes, tithes; which are defined to be the tenth part of the 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, predial, grass, hops, and wood; the second mixed, as of wool, milk, pigs, &c., consisting of natural products, but nurtured and preserved in part by the care of man; and of these the tenth must be paid in gross: the third personal, as of manual occu- personal pations, trades, fisheries, and the like; and of these only the tenth part of the clear gains and profits is due.q' a Co. Litt., 344; Cro. Jac., 63. [Yelv., 61.] 1 Roll. Abr., 635; 2 Inst., 649. P Ibid. 9 1 Roll. Abr., 656. (7) But the rule seems only to apply years, when he presented Dr. Stillingto donatives by prescription; for, where fleet. And he added, the Church would a donative had been created by letters suffer by it, because there was no one patent, it was held not to have been de- who had a great living but would prestroyed by several presentations. (2 sent a blockhead, who was not likely to Salk., 541; 3 Id., 140; Holt, 259.) Ìf be made a bishop, in order to preserve a donative receive augmentation from his presentation. (1 Show., 461.) Queen Anne's bounty, under stat. 1 Geo. I., st. 2, c. 10, it loses its distinctive qualities. (9) The distinction between predial and mixed tithe is, that predial tithes, so called from prædium, a farm, are those (8) It may here be observed that, which arise immediately from the soil, when an incumbent is made a bishop, either with or without the intervention the right of presentation for that turn is of human industry. Those are mixed in the king, and is called a prerogative which arise mediately through the inpresentation; the law concerning which crease or other produce of animals which was doubted in Car. II.'s time, but in receive their nutriment from the earth the time of King William it was finally and its fruits. Therefore agistment is a determined in favor of the crown. (2 predial tithe, though, as it is incapable W. Bl., 770.)-[CHITTY.] This prerog- of being set out in kind, it is not within ative does not extend to donatives, for the statute 2 & 3 Ed. VI., c. 13. (Per the promotion causes no vacancy in them. Macdonald, C. B., c Anstr., 763.) Per(Show., P. C., 184; 2 Br., P. C., 514. See sonal tithes are so termed because they stat. 3 & 4 Will. IV., c. 27, s. 31.) Mr. arise entirely from the personal industry Justice Dolben said, that this prerogative of man. (Mirehouse, 1 and 2.) These had always been grumbled at-that it personal tithes are not, at present, paid never came in question but some grudge any where except for fish caught in the or other was against it, it having been sea (Bumb., 256; 3 T. R., 385), or, by so common in great livings that the true special custom, for fish caught in rivers patron in St. Andrew's, Holborn, had (Cro. Car., 339), and for corn-mills (Mirenot presented above once in a hundred house, 93; 3 Atk., 18; 2 Ea. & You., |