property. HAVING treated in the preceding Titles of corporeal property, Incorporeal it will now be necessary to discuss the nature of incorporeal hereditaments, and the rules by which they are governed. In- 2 Comm. 20. corporeal hereditaments consist of rights and profits arising from, or annexed to lands; their essence being merely in idea 1 Inst. 9 a. Origin of ad vowsons. 1 Inst. 17 b. 119 b. Incumb. 64. edit. 1725. and abstracted contemplation, though their effects and profits may frequently be objects of our bodily senses. Hæreditas, alia corporalis est, alia incorporalis; corporalis est qua tangi potest et videri; incorporalis quæ tangi non potest, nec videri. The principal kinds of incorporeal hereditaments are,— advowsons, tithes, commons, ways, offices, dignities, franchises, and rents. To these, Sir W. Blackstone had added two others, corrodies and annuities, which are here omitted. 2. In the early ages of Christianity the nomination of all ecclesiastical benefices belonged to the church. When the Watson's Com. piety of some lords induced them to build churches upon their own estates, and to endow them with glebe lands, or to appropriate the tithes of the neighbouring lands to their support, the bishops, from a desire of encouraging such pious undertakings, permitted those lords to appoint whatever clergyman they pleased to officiate in such churches, and receive the emoluments annexed to them; reserving, however, a power to themselves to judge of the qualification of those who were thus nominated. Description of 1 Inst. 17 b. Idem. 3. This practice, which was originally a mere indulgence, became in process of time a right; and all those who had either founded or endowed a church claimed and exercised the exclusive privilege of presenting a clerk to the bishop whenever the church became vacant. 4. An advowson (a) is, therefore, a right of presentation to a church or ecclesiastical benefice. The word is derived from advocatio, which signifies in clientelam recipere; for in former times the person to whom this right belonged was called advocatus ecclesia, because he was bound to defend and protect, both the rights of the church, and the incumbent clerks, from oppression and violence. Hence the right of presentation acquired the name of advowson, and the person possessed of this right was called the patron of the church. 5. Lord Coke says, there may be several patrons, and two several incumbents, in one church; the one of the one moiety, and the other of the other moiety. And one part, as well of the church as of the town, allotted to the one, and the other (a) The law of advowsons is here only treated of as far as lay patrons are concerned. part thereof to the other; which is called advocatio medietatis ecclesia. nation. Plowd. 529. Wats. 90. 6. The right of presentation, and that of nomination to a Right of nomichurch, are sometimes confounded: but they are distinct things. Presentation is the offering a clerk to the bishop; nomination is the offering a clerk to the patron. These rights may exist in different persons at the same time. Thus a person seised of an advowson may grant to A. and his heirs, that whenever the church becomes vacant, he will present to the bishop such person as A. or his heirs shall nominate. This is a good grant, and the person to whom the right of nomination is thus granted, is to most purposes considered as patron of the church. 7. Where the legal estate in an advowson is vested in Tit. 12. trustees, they have the right of presentation in them: but the Tit. 15. c. 2. right of nomination is in the cestui que trust. So in the case of a mortgagee of an advowson, the mortgagee has the right of presentation, but the mortgagor has the right of nomination. 8. The right of presentation, which was originally allowed to Advowsons the persons who built or endowed a church, became by degrees appendant. annexed to the manor in which it was erected; for the endowment was supposed to be parcel of the manor, and held of it; therefore it was natural that the right of presentation should pass with the manors, from whence the advowson was said to be appendant to the manor, being so closely annexed to it, that it passed as incident thereto, by a grant of the manor. 9. Where an adowson has at all times whereof the memory of Wats. 66. man is not to the contrary passed with the manor, by the words cum pertinentiis, it is to be taken as an adowson appendant. But 1 Inst. 122 a. though an adowson is said to be appendant to a manor; yet in 2 Vin. Ab. 594. truth it is appendant to the demesnes of a manor, which are of perpetual subsistence, and not to the rents and services, which are subject to extinguishment and destruction: from which it Dissert. ch. 3. seems to follow that an adowson may be appendant as well to a reputed as to a real manor. 10. It was found, in a special verdict, that the abbot of S. was seised of capital messuage in F. and of one hundred acres of land there; that there was a tenancy holden of such capital messuage by certain services; that the said capital messuage Long v. |
