Alienation and sale of advowson.-Though an advowson is a right of property yet it has this peculiarity, that the law as matter of theory treats it as a right held for the good of the church, and not for the mere profit of the individual. Hence the plaintiff in a quare impedit, which is an action for hindering him exercising the right of patronage, was not entitled to recover damages until a statute of Edward I. expressly allowed this to be done.' The clergy are prohibited by statute "from buying, or for money directly or indirectly procuring or accepting the next avoidance of, or presentation to, any benefice with cure of souls, any dignity, prebend, or living ecclesiastical;" and the admission shall be void, and the Crown inay present a successor. But an ingenious mode has been discovered of defeating that statute, for if a clergyman purchase “an estate for life in the advowson," and a vacancy occurs during such life, then he may present himself, and the bishop has no reason for refusing to examine and admit him. For the courts have said, "an estate for life" is not a next presentation nor a next avoidance, and the statute must be strictly construed. The statute, moreover, restrained only the clergy, but did not affect the laity, and hence purchases on their part were not prohibited by that statute, and are freely made. And the statute did not prevent a clergyman purchasing the advowson or the perpetual right of presentation as a property and an investment of his own. An advowson being an incorporeal hereditament may be dealt with like other property in most respects. It consists of two separable acts, one of nomination and the other of presentation, the former being the substantial right, and the latter being chiefly a ministerial act, and the owner may sever the one from the other

and subject is, that a grant of a manor without special mention of advowsons appendant will carry such advowsons, yet this is not the case where the king is the grantor, for in such case by statute an express mention of the advowson or something equivalent is required to pass it with the manor or land.-17 Edward II., c. 17. And yet if the Crown restores and not grants, as where it restores a bishop's temporalities, then no such special mention is required.Whistler's case, 10 Co. 64. 3 Walsh v

1 13 Ed. I. c. 5; 1 Inst. 17 b. Bp. Lincoln, L. R., 10 C. P. 518.

2 13 Anne, c. 11.

and grant the nomination to a third party. Moreover the party entitled to present cannot do so before the vacancy occurs, and if another is admitted on such vacancy, the person to whom the promise or engagement was made cannot pursue any remedy, and the court said, that any custom set up of electing to a full place must be foolish.2 One remarkable thing is, that an infant, however young, may nominate as well as present to an advowson, which however only means, that though the guardian may do these acts, they must be done in the name of the child. The notion was, that the guardians could not make money by the duty of presentation, and to prevent it the power was not to be trusted to them.3 Best, C. J., said this doctrine led to the ridiculous ceremony of the guardian putting the pen into the hand of the infant in his cradle, and guiding that feeble hand while it signed the presentation. When the advowson belongs to the wife, then the husband must concur with her in the presentation, and after her death he is tenant by the curtesy and so alone presents. And for a like reason, if the surviving husband die after the vacancy has occurred, the presentation will belong to his executor and not to the wife's heir. And, on the other hand, the widow's dower entitles her to the third presentation after the husband's death. If an advowson belong to one who has become bankrupt, he has the right to present, and such a right is expressly excepted out of those that pass to creditors. In the case of the lands being mortgaged to which the advowson is appurtenant, the mortgagor is, in the absence of covenant, entitled to present until there is a foreclosure, for the advowson is not deemed one of the profits of the estate.8

Death of owner of advowson or presentation.-The rule as to whether the right to present goes to the heir or the executor of the patron is explained in this way. When a vacancy occurs and the patron is not the bishop, the right to present is in the nature of a personal power detached from the lands or office to which it may be an accessory, and so it goes to the executor of the patron if the latter

1 Att.-Gen.v Stafford, 3 Vic. c. 80. Re Arthington, 2 Cas. Eq. 518, 575. 5 Co. Litt. 29 a.

3 Bing. 584.

2 Owen Stainoe, Skin. 45. 4 Fletcher v L. Sondes, 6 Co. Litt. 34 b, 379 a.

7 32 & 33 Vic. c. 71, § 15. 8 Mackenzie v Robinson, 3 Atk. 559.

has not yet presented.' And thus, while the lands descend to the heir or the office goes to a successor, the right of presentation falls to the executor of the patron. And even where the patron had nothing but a term in the right of advowson, and the term came to an end after the right accrued, but before it was exercised and the patron died, his executor would have the right to present though the terin had vanished in the meantime. This right to the vacant turn of presentation is deemed in the eye of the law to be in the same position as a chattel vested in the testator; and it was on this analogy that it was held, that when a prebendary had a right of advowson and died before he exercised it, the next turn belonged to his executor and not to the successor in the prebend. So an advowson may be devised with or without the power to sell the next presentation. And till the trustees sell, the cestuisque trust has the right of presentation. And it may be given on trust to present some fit person, such as the parishioners and inhabitants should nominate: in which case the right of election has been held in practice to belong to the majority of the inhabitants above the age of twenty-one, and paying church and poor rates. And in a case of this kind an election by ballot would not be illegal? As advowsons are on the footing of temporal inheritances and descend by course of inheritance, and can be dealt with otherwise in like manner,8 so they may be granted to trustees for the benefit of cestuisque trust. In such a case all the cetuisque trust must agree in the nomination. And if they cannot agree, the court has allowed them to determine by lot which of them should nominate.10 A majority

1 Mirehouse Rennell, 8 Bing. 550.

2 Ibid.

6

3 Ibid. While right of presentation to a vacant benefice passes on the patron's death to his executor, it is otherwise as to advowsons belonging to the bishop. As to him, if he dies before presenting, the right goes not to his executor, but to the king as part of the prerogative.-Mirehouse v Rennell, 8 Bing. 550.

4 E. Albemarle v Rogers, 2 Ves. 477. 5 Biggs v Sharp, L. R., 20 Eq. 317. 6 Fearon Webb, 14 Ves. 13. 7 Shaw & Thompson, 3 Ch. Div. 233. 8 Doct. & Stud. 2, c. 26.

9 And in the event of the trustees not presenting the person elected, there is either a remedy as for breach of trust or by way of mandamus to compel performance of a legal duty.-R. v Orton, 14 Q. B. 139; R. v Kendall, 1 Q. B. 366.

10 Johnstone v Barber, 6 De G. M. & G. 439.

of a corporation have been held entitled to present.1 And in the event of an advowson becoming vested in joint tenants or tenants in common, or in trustees, unless they manage to agree within six months, the ordinary can present, for the presentation lapses. In the case of coparceners succeeding to the advowson, the common law recognises a precedence in the elder sister to this extent, that she has the first turn, and the next turn goes to the second sister, and so on till the turn of the first sister comes round; and this order will be adhered to though one of the coparceners negligently allows usurpation.3 The turn of each is complete when the church is full, though the clerk presented may afterwards be deprived. In all such cases, however, of joint tenants, tenants in common and coparceners, they may obtain a partition, whereupon, by statute, each is seised of a turn,5 and so the difficulty of a plurality of holders is overcome.

Advowsons of corporations, the Crown and Papists. -In consequence of the inconvenience of advowsons being practically vested in large bodies of ratepayers or inhabitants who derive no pecuniary advantage therefrom, and yet such a species of interest prevents useful improvements in the benefice, the legislature interfered, and authorised the sale of such advowsons, and the application of the proceeds to the erection, rebuilding, or improvement of the parsonage-house, or the augmentation of the living, or other useful purposes. The option of adopting such a resolution is given to a general meeting of all the owners." And before the date of the last statute it had been enacted that where advowsons were vested in municipal corporations or of members thereof, the legislature in 1835 took away from such corporations the option of retaining these, and authorised the advowsons to be sold at the discretion of the Ecclesiastical Commissioners, and the proceeds to

6

1 R. Kendall, 1 Q. B. 366. Reynoldson Blake, 1 Raym. 197. 3 B. & P. 449.

2 Doctor & St. b. ii. c. 30; 3 Birch Bp. Lichfield,

↑ Windsor's case, 5 Coke 102. In some cases of coparceners not being able to agree, Lord Hardwicke allowed them to draw lots which should have the first presentation.-Seymour Bennet, 2 Atl. 482.

5 7 Anne, c. 18, § 2.

6 19 & 20 Vic. c. 50.

7 Ibid.

be invested, and the interest applied to the borough fund.1

One peculiarity attending the presentation to benefices is, that the king is deemed the paramount patron, and if the bishoprie is vacant, or the bishop is incapacitated, his right to appoint to the benefices of the bishopric devolves on the sovereign. The maxim in law is, that the Church is not full as against the king till induction, and hence if the bishop has presented, but not inducted, the king obtains the presentation. Moreover, when a person who is the owner of an advowson is promoted to a bishopric his right of presentation devolves on the king, though such person may have already given away the presentation to a grantee. Such a prerogative right of presentation is held not to supply but only to suspend or postpone the turn of the patron, and of all the patrons if more than one, and it does not take away the right of one and leave the rest entire. And hence the grantee above mentioned will merely have his right postponed by this one turn, and will come in after the death of the king's presentee.3

Owing to the peculiarity of Papists being owners of advowsons, elaborate precautions were devised in former times to disqualify them from presenting. And by a statute of James I. and subsequent statutes, the presentations to any living, free school, or hospital, belonging to Popish recusant convicts or their trustees, were divided between the chancellor and scholars of Oxford and Cambridge University respectively, according to the counties in which the benefices were situated. The only condition of this transfer of such gifts was, that the person presented should not already have a benefice with the cure of souls. But while the right of presentation was thus taken away from Papists, no other right of such patrons was affected, such as the right to sell or alienate for good consideration for the benefit of a Protestant.5 And on the view just mentioned, no Papist who is a member of a corporation having an advowson is to take part in the appoint

1 5 & 6 Will. IV. c. 76, § 139; 6 & 7 Will. IV. c. 77, § 26 ; 1 & 2 Vic. c. 31. 2 Co. Litt. 388 a. 3 Calland v Troward, 2 H. BI. 324; 8 Bro., P. C. 71; R. v Eton College, 8 E. & B. 632.

43 Jas. I. c. 5, § 13; 1 W. & M. c. 26, § 2; 13 Anne, c. 13, §1; 5 11 Geo. II. c. 17, § 5.

10 Geo. IV. c. 7, §§ 15-18.