Hob. 45. 38. Tenant in tail and his son joined in a grant of the next Wyvel's case, avoidance of a church; the tenant in tail died. It was adjudged that the grant was void against the son and heir that joined in the grant, because he had nothing in the advowson at the time of the grant, neither in possession nor right, nor in actual possibility. 39. Lady Hobart being tenant for life of the manor of Clifton, Dymoke v. Hobart, to which the advowson of the Church of Clifton was ap- 1 Bro. Parl. pendant, sold the next presentation to Mr. Dymoke, and died Ca. 108. before the church became void. It was resolved that the sale was void. set upon Is assets for debts. payment of Inst. 374 b. 3 Atk. 464. 3 P. Wms. 301. See also stat. 3 & 4 Will. 4. c. 104. 40. It is said by Lord Coke that an advowson is assets to satisfy a warranty; but that an advowson in gross is not extendible upon a writ of elegit, because no annual value can be it. It has, however been determined that an advowson in gross, whether the proprietor has a legal or an equitable ininterest therein, is assets for payment of debts; and will be directed to be sold by the Court of Chancery, for that purpose. 41. John Tong being indebted to several persons, by judgment, Tong v. bond, and simple contract, in great sums of money, died intes- 3 Vin. Abr.144. tate; seised in fee, among other things, of the trust of an advowson in gross. Upon a bill filed by the creditors of John Tong, praying a sale of his real estate for the payment of his debts, a question arose whether this advowson was assets. Lord King decreed that it was, and should be sold for the payment of Tong's debts. On an appeal from this decree to the House of Lords it was insisted by the appellants that this advowson was not assets at law, or liable to the demands of any of the creditors of Tong; because at law no inheritance was liable to any execution that was not capable of raising some profits towards satisfaction of the debt, which an advowson was not. On the other side it was contended that at common law an advowson in fee was an hereditament descendible to the heir, valuable in itself, and saleable; and even capable, if necessary, of having an annual value put upon it; and was therefore legal assets in the hands of the heir. The decree was affirmed, with the concurrence of all the Judges. Robinson. 1 Bro. Parl. Ca. 114. Westfaling v. 42. In a case before Lord Hardwicke in 1746, one of the questions was, whether an advowson in gross was assets by descent. His Lordship observed, it had been said the authorities went no farther than where there had been a trust of an advowson, and did not extend to a legal interest: but that this argument was quite cut up by the roots by the determination of the House of Lords in the case of Tong v. Robinson. In the minute book of the day, it was taken down that the question proposed to be asked of the judges was, whether an advowson in fee was assets. It must have been defectively taken by the clerk; the question intended was, whether an advowson in gross in fee was assets; for there could be no doubt as to an advowson appendant to a manor, because the manor itself being assets, what was appendant must be assets likewise; and decreed that it was assets by descent, to satisfy specialty debts. AN advowson consisting in the right of presentation, it will be Presentation. necessary to examine into the nature of this act, and the consequences that attend it; the time within which it is to be done, and the persons who are capable of performing it. 2. Presentation (a) is the offering a clerk, by the patron or 1 Inst. 120. proprietor of an advowson, to the ordinary; which might formerly have been done either by word or by writing: but since the statute of Frauds, 29 Cha. 2. c. 3. s. 4. it is necessary that all presentations be in writing; and a presentation in writing is (a) [The terms "presentation" and "nomination are, as before observed, some- Sup. c. 1. s. 6. times used synonymously, but they indicate distinct rights, which may in some cases exist in different persons: generally the person who has the legal estate is the person to present the clerk to the bishop; but the beneficial owner has the right of nominating the person to be presented. Thus when the legal estate of the advowson is vested in trustees, they have the legal authority to present the clerk; but the cestui que trust has the right of nomination. Barrett v. Glubb, 2 Sir W. Bl. 1052. Earl of Albemarle v. Rogers, 2 Ves. J. 477. Boteler v. Allington, 3 Atk. 458. So also the mortgagee of an advowson is the person to present, but the mortgagor has the right of nomination.— Vide infra, s. 35.] Rogers v. Hol led, 2 Black. Parl. Ca. 117. 1 Inst. 244 a. Institution. 1 Inst. 344 a. Wats. 156. Induction. Wats. 155. 1 Burn's Ecc. Law, 156. a kind of letter, not a deed, from the patron to the bishop of the diocese in which the benefice is situated, requesting him to admit to the church the person presented. 3. A presentation, though duly made in all respects, may be revoked or varied. This was always held with respect to the king, but was doubted as to lay patrons. It appears, however, to be now fully settled that a lay patron may revoke his presentation at any time. Sir W. Blackstone has observed, that a presentation was certainly revocable by the principles of the common law, because it vested no right in any one, not even in the clerk presented; for if the clerk had a right, the law would give him a remedy to recover it when invaded. There was, however, no species of common law action open or competent to a clerk, to recover a presentation, when obstructed, but to the patron only. And it was said arguendo, in the House of Lords, that a presentation conferred no interest whatever. of the pre 4. When the ordinary declares that he approves of the sentee, as a fit person to serve the church to which he is presented; the clerk is said to be admitted. 5. Institution is the commitment to the clerk by the ordinary, of the cure of souls. The form and manner of it is thus; the clerk kneels before the ordinary, whilst he reads the words of the institution, out of a written instrument drawn up for this purpose, with the episcopal seal appendant to it, which the clerk holds in his hand during the ceremony. 6. The act of presentation only gives the clerk a right ad rem, but institution gives him a right in re: therefore the clerk, when instituted, may enter upon the glebe, and take the tithes; though he cannot yet sue for them. 7. After institution given, the ordinary issues his mandate for induction, directed to him who has the power to induct, of common right. This person is generally the archdeacon of the diocese; though others, by prescription or composition, may induct. 8. The induction is to be made according to the tenor and language of the mandate, by investing the clerk with full possession of all the profits belonging to the church. Accordingly the person who inducts usually takes the clerk by the hand, and lays it upon the ring of the church door; or if the church is in ruins, then upon the wall of the church or church-yard, and says to this effect" By virtue of this mandate, I do induct you into the real, actual, and corporeal possession of the church of C. with all the rights, profits, and appurtenances thereunto belonging." After which the inductor opens the door, and puts the clerk into the church, who usually tolls the bell, to make his induction public, and known to the parishioners. After this the inductor endorses a certificate of the induction on the mandate, which is witnessed by the persons present. 9. It has been stated that in the case of an advowson donative, neither presentation, institution, or induction, are necessary. Wats. c. 12. Boteler v. 3 2 10. Presentation must be made within six calendar months Of Lapse. after the death of the last incumbent, otherwise the right to present accrues or lapses to the ordinary. It being for the interest of religion that the church should be provided with an officiating minister, the law has therefore given this right of lapse, in order to quicken the patron, who might otherwise, by suffering the church to remain vacant, avoid paying his ecclesiastical dues, and thereby frustrate the pious intentions of the founder. 11. As the computation of time concerns the church, it is 2 Inst. 361. made according to the rules of the canon law, that is, by the calendar, for one half year; not counting 28 days to the month. And the day on which the church becomes void is not to be taken in the account. 12. As to the time from which the six months are to commence, the rule of the canon law in all cases was, that the six months should be reckoned, not from the time of the voidance, but from the time when the patron had notice of the voidance. As if the incumbent dies beyond sea, the six months shall not be counted from the time of his death, but from the time of the patron's knowledge thereof. 2 Burn's Ecc. Law, 327. 2 Roll. Ab. 363. 13. It has also been held that although no lapse shall incur, if Idem, 329. no notice be given; yet if in such a case a stranger presents, and his clerk is instituted and inducted, and the patron gives no disturbance within six months, he has no remedy for that turn; because induction is a notorious act of which he is bound to take notice. 14. Where a clerk is refused for want of learning, or on account Idem, 328. of his morals, the patron ought to have notice, that he may pre |