Abridgment of Ecclesiastical Laws, Treatise · Chapter 19

Abridgment of Ecclesiastical Laws · Treatise · Chapter 19

p. 204CHAP. XIX.

Of Advowſons.

1. Advowſon, what; and why ſo called.

2. Advowſons twofold.

3. The great Antiquity of Advowſons; the Original thereof.

4. How it was in this Kingdom under the Saxons.

5. The word Advowſon applicable to other Eccleſiaſtical Foundations, as well as Churches; what the Famous Lindwood was.

6. Advowſons are Temporal, not Spiritual Inheritances.

7. Reaſons in Law, proving it to be a Temporal Inheritance.

8. The difference between Advowſons in Groſs and Appendant.

9. How Advowſon Appendant may remain in the King as in Groſs.

10. By what words in a Grant an Advowſon may paſs or not.

11. How an Advowſon may be recontinued to the Rightful Patron, where he was ouſted by Ʋſurpation.

12. A Caſe in Law touching three Avoydances of a Church granted to one man.

13. A Queſtion in Law, whether upon ſuch matter of Fact an Advowſon remains Appendant, or not?

14. Advowſons are deviſable by Will, as well as grantable by Deed; what Actions may run in prejudice to the Advowſon, or not.

15. Whether an Advowſon may be Aſſets; and under what words it may paſs, or not?

16. A Caſe in Law touching the Advowſon of a Vicarage.

17. In what caſe the Writ of Right of Advowſon lies, or not.

18. In what caſe the Crown ſhall be put to that Writ, or not, in caſe of Ʋſurpation by a Common perſon.

19. A point in Law, whether the King or his Grantee ſhall have the Preſentation, where the King having a Mannor with the Advowſon appendant, the Church void, grants the Mannor with the Advowſon.

20. Of Advowſons there are three Original Writs at the Common Law.

21. The Advowſon of a Vicarage, whether it belongs to the Patron or the Parſon.

p. 20522. Whether an Advowſon may properly be ſaid to be a Demeſn; ſeveral matters of Law in reference to Advowſons Appendant and in Groſs, in reſpect of the King and Common perſons.

23▪ Whether a Donative in the Kings Gift may be the Cure of Soul?

24. Whether by the Grant of a Vicarage the Advowſon of the Vicarage ſhall paſs; The grant of a next Avoydance during an Avoydance, is void.

(1.) ADvowſon is a kind of Reverſionary right of Preſentation to an Eccleſiaſtical Benefice in a man and his Heirs for ever. It is the ſame which the Canon Law underſtands by Jus Patronatus, or the Right which a man and his Heirs have to preſent their Clerk to the Ordinary, for a Parſonage or other Spiritual Benefice when it becomes void; and he in whom ſuch Right reſides, is called the PatronaaTerm. Law, verb, Advowſon. Weſtm. 2. 13 Ed. 3. ….. Jus Patronatus eſt Poteſtas Praeſentandi aliquem Inſtituendum ad Beneficium Eccleſiae Simplex & vacans. Hoſtienſ. de jure Patronat. Jus Patronatus eſt jus Honorificum, Oneroſum, & Ʋtile. It is a Right to preſent to the Biſhop or Ordinary a fit perſon, by him to be Admitted and Inſtituted into a Spiritual Benefice when it becomes void. The unlawful Poſſeſſor is the Uſurper, againſt whom only lieth three Writs; one of the Right, as the Writ of Right of Advowſon; and the other two of the Poſſeſſion, As a Quare Impedit, and Darrein Preſentment. And the Incumbent, as to his Right for his Rectory, hath the Writ of Juris Ʋtrum. And Advowſon is not Haereditas corporata, as a Meſſuage, Land, or Paſture, &c. But it is Haereditas Incorporata; as Wayes, Common, Piſcaries, Courts, &c. which are and may be Appendant to Inheritances Corporate. Advowſon is a kind of Baſtard-French word, ſometimes called Advocatio Eccleſiae, either becauſe the Patron thereof, claiming his J…s Patronatus therein, Advocat ſe in his own Right unto the ſame, eamque eſſe ſui quaſi Clientis Loco, or rather becauſe the Patron in his own right Advocat alium to the Church being vacant, and preſents him unto it Loco alterius, veluti Defuncti bbSke…o. d… verb. Sig.. Thence called ſometimes Patron, ſometimes Advocati; for they who originally obtained a Right to preſent to any Church, were either the Founders, or Builders, or Benefactors of the ſame. Decretal. c. 4. & 24. de jure Patronat. & Plow. 495. Dy. 48. Co. 1. 102. 4. 37. 6. 39. Litt. 119, 120. Patronum faciunt Dos, Aedificatio, Fundus. And although Advowſons are now, as other Temporal Inheritances, grantable by Deed, and ſo in that reſpect cognizable at the Common Law; yet inaſmuch as they are the ſame which the Canon Law calls Jus Patronatus, it cannot be denied, but that p. 206they are within the Eccleſiaſtical Juriſdiction; and therefore although the Patron may have his Action againſt the Ordinary in a Temporal Court by a Quare Impedit for rejecting his Clerk, yet the Ordinary may Decree a Proceſs de Jure Patronatus in the caſe, to enquire by a Mixt Jury of Eccleſiaſtical and Lay-men touching the ſaid Advowſon or Right of Patronage according to the Laws and Cuſtomes of the Church.

(2.) There is an uſual difference taken, between Advocatio medietatis Eccleſiae, and Medietas Advocationis Eccleſiae: The former is where two Patrons be, and every of them having Right to Preſent a ſeveral Incumbent to the Biſhop, to be Admitted into one and the ſame Church, (for divers may be ſeveral Parſons, and have Cure of Souls in one Pariſh) and ſuch Advowſon is alike in every of theſe Patrons, but every of their Preſentments is to the moity of the ſame Church; and therefore it is called Advocatio Medietatis Eccleſiae, or as the caſe may be, Advocatio Tertiae partis Eccleſiae, and the like. The latter, viz. Medietas Advocationis Eccleſiae, is after partition between Parceners; for although the Advowſon be entire, amongſt them, yet any of them being diſturbed to preſent at his Turn, ſhall have the Writ of Medietate, or of Tertia, or of Quarta parte Advocationis Eccleſiae, as the Caſe is▪ And this difference is taken and obſerved only in the Writ of Right, which is altogether grounded upon the Right of Patronage. But in the Quare Impedit, which is only to recover Dammages, no ſuch diverſity is conſidered, but the Writ is general, Praeſentare ad Eccleſiam. Doderidge, of Advowſons, Lect. 4. Of Advowſons there are two ſorts, The one that in Groſs, which is Sole or Principal, not adhering or belonging to any Mannor, or to any part or parcel thereof, as of the Right thereof: The other Appendant or Dependant, or depending on a Mannor, as appertaining or belonging thereto, which is by Kitchin termed an Incident that may be ſeparated from the Subject. Again, Sometimes the word Advowé or Avowé is alſo uſed for him who hath a Right in his own Name to preſent to a Benefice or other Eccleſiaſtical Living,25 Ed. 3. Stat. 5. c. Ʋnic. where you have alſo (Advowe paramount) or the higheſt Patron, an Appellation peculiar to the King. So that this Advocatus is he to whom ſuch jus advocationis alicujus Eccleſiae belongeth, as that he may Preſent to the Church in his own, but not in anothers Namecc…leta, l. 3. c. 14. § 1.. And Fitzherbert uſeth it in the ſame ſignification ddFitzh. N. B. fo. 39..

(3.) Conſonant to the practice at this day touching Advowſons, was the Emperour's Novell, Decreed about 1100 years ſince, towards the end of the Fifth Century, to this purpoſe, That if any man ſhall erect an Oratory, and his deſire be to Preſent a Clerk thereunto, by himſelf or his Heirs; if they furniſh the Clerk with a Competency, p. 207and Nominate to the Biſhop ſuch as are worthy, they may be Ordained: But if thoſe who are intimated by them be rejected by the Canons, as unworthy of the Miniſtry, then let it be the care of the moſt Reverend Dioceſan of the place, to Preſent ſuch as in his diſcretion he ſhall conceive better of eeNovell.. And Panormitan clearly interprets the Emperour's mind herein, and gives us the very meaning and original of the Patron's Right in this point of Advowſons; he ſays, That this is Jus honorificum, oneroſum, & utile, belonging to any in the Church, for that with the Dioceſans conſent he hath Founded, Built, and Endowed a Church, he hath given a piece of Ground▪ C. nobis, c. de jur. Patronat. and erected a Church thereon, 16. q. 7. c. Monaſterium. and Endowed it, C. Piae mentis, ibid. and was therefore qualified with the Right of Patronage. And indeed the Dioceſans conſent herein is ſo requiſite, that by the Canon Law it ſeems ſcarce feazable for a man to be a Patron without it, Si quis Eccleſiam cum aſſenſu Dioeceſani conſtruxit, ex eo Jus Patronatus acquirit. Clement. c. Nobis de Jur. Patron. And when a Church ſo erected is by the Conſecration thereof actually delivered up and made over (as it were) to God himſelf, it thenceforth ceaſes to be of any mans property, or of any Human Dominion; for Quod Divini Juris eſt, id nullius eſt in bonis: §. nullius, Inſt. de Rer. Diviſ. And by what is Recorded in the Life of Biſhop Ʋlrick, it ſhould ſeem as if the Right of Preſentation originally were in the Dioceſan; for the Author there ſaith, That if any Erected a Church the Biſhop conſented, Si legitimam Eccleſiae dotem in manum ejus Celſitudinis dare non differret, &c. And after the Endowment and Conſecration thereof, the care of the Altar was committed by him to the Prieſt, and the Advowſon firmly conveyed to the lawful Heir, by the putting on a Robe: Author. vitae▪ Udalrici, c. 7. p. 52. Edit. Auguſt. Vindel. 1595. But the Biſhops underſtanding this as a matter more of Care than of Power, as appears by theſe moderate expreſſions of Nominare, Praeſentare, or Commendare, they were willing the Lay-Patron (for his better encouragement to ſuch Pious works) ſhould ſhare with them in this priviledge, which Panormitan calls Jus …onorificum, yet ſo, as that this transference of the Biſhops unto Lay-Patrons, ſhould ſtill remain under ſuch a Limitation, as that it ſhould be neceſſary for the Patron to have recourſe to the Biſhop for the qualifying his Clerk for the Rectory by Ordination; And the Biſhop's prudent compliance with Lay-Patrons in this matter was not in thoſe days without good reaſon, if we conſider what a paucity of publick Churches there then were, inſomuch that for want or inſtead thereof they frequently then ſaid Prayers under a Croſs in the open Field, as is reported of our own Anceſtors in the Peregrination of Wilibald, Sic mos eſt Saxonicae gentis, &c. non Eccleſiam p. 208ſed Sanctae Crucis Signum, &c. diurnae Orationis ſedulitatem ſolent habere. Hodaeperic. Hieroſolym. Wilibald. Extat ad Caniſium, Tom. 4. Antiq. Lect. par. 2. pag. 486. Edit, Ingolſt. 1603. Yea, and where perhaps ſome Churches were, many of them were no better than thoſe mentioned by Aſſer Biſhop of Shirburne in King Alured's daies, which were of ſo mean a ſtructure, that frequently the wind entering per parietum rimulas, did blow out the Candles ſet before the Reliques; which gave occaſion to that ingenious Prince to teach us by his dexterity the myſtery of making Lanthorns Ex Lignis & Bovinis Cornibus.

(4.) In the Infancy of the Chriſtian Faith in this Iſland under the Saxons, ſeveral particular Lords of Grand Seignories (Regis ad Exemplum) erected particular Churches, and having Endowed them with Lands, reſerved to themſelves and their Succeſſors for ever a right and power to confer them on ſuch as were meetly qualified for the ſame; And this they did in imitation of thoſe Kings, who then Reigning here, erected Cathedrals, Abbies, Priories, Churches, &c.ffCo. 2. par. Inſtit. Dod. Treatiſe of Advowſ..

(5.) An Advowſon, being a right of Preſentation (as aforeſaid) reſerved by a Founder to himſelf, his Heirs and Succeſſors, is applicable to other Eccleſiaſtical Foundations, as well as thoſe of Churches, as appears by the ſeveral Quare Impedits brought on ſeveral occaſionsggAs in caſe of Diſturbance to a Prebendary. 7. R. 2. Qu. Impedit 21. 13 R. 2. Bre. 643. Or of Diſturbance in a Preſentation to a Vicarage, 5 Ed. 3. Quare Imp. To a Provoſtry, 17 E. 3. 20. To a Chappel, 17 E. 3. 12.: ſo that albeit it hath been ſaid, that by the Grant of a Church the Advowſon paſſedhhPer Parning, 7 Ed. 3. f. Qu. Imp. 9., and when he gave the one, he gave the other; yet is the word Advowſon not improperly applicable to any thing wherein a Quare Impedit will lie. And he in whoſe Right ſuch Preſentation is reſted, is by the Provincial Conſtitutions of this Realm termed Advocatus Eccleſiae, becauſe (as the Conſtitution hath it) tueri & defenders Eccleſiam & ejus jura tenetur, ad inſtar Advocati qui in Judicio Cauſam alicujus defendit. Lindw. Provin. Conſt. de Foro Comp. cap. Circumſpecte, ver. Advocatus. Which every Patron is obliged to do; whence Patronus and Advocatus Eccleſiae are in effect Synonymous; yet in Lindwood we have the Queſtion put, whether there be any difference inter Patronum & Advocatum Eccleſiae. Lindw. Conſt. Prov. de homicidio, cap. Sacri, Gloſſ. ibid. Where though the prevailing opinion be for the Negative, yet you will alſo there find very Orthodox Authority for the contrary, and that Advocatus intelligitur non pro Patrono, ſed pro Defenſore Eccleſiae: Gloſſ. ibid. as appears there by Lindwood that Famous Canoniſt totius Orbis Britannici, who being Doctor of Laws, Chaplain and Official to the Archbiſhop of Canterbury in the time of H. 5. was by reaſon of his great Experience and Abilities in National Laws as well as Provincial Conſtitutions, ſent as his Embaſſador to the Crowns of Spain and Portugal; and at his Return p. 209about An. 1422. compiled what now is extant to his Immortal Memory, and Dedicating the ſame to the ſaid Archbiſhop, it was after about An. 3505 (being firſt reviſed by Wolfgangus Hopylius) printed at Paris, at the coſt and charges of William Bretton Merchant of London. Mention hereof is here made, in regard of the plentiful uſe here made of this Eminent Author in this Eccleſiaſtical Abridgment, and that rather in the midſt of this Subject touching Advowſons, as preſuming, that for the reaſon aforeſaid a Quare Impedit will not lie in the caſe of this digreſſion.

(6.) The Right of Patronage is, it ſeems by the Common Law, a real Right fixed or veſted in the Patron or Founder in the Church, wherein he hath as abſolute a property and Ownerſhip as any man hath to his Lands and Tenements, or any Freehold whateveriiVid. 8 Aſſ. 29. 13 Aſſ. 22. 11 H. 4. 84. Paſch. 9 Ed. 3. Quare Imp. 30. Co. 2. par. Inſtit. acc. & 38 Aſſ. 22. The Prior of Plymton's Caſe. Co. 2. par. Inſt. acc.: And that the Advowſon or Patrons Right to Preſent is a Temporal and not a Spiritual Inheritance. For at the firſt Creation of a Mannor, if Lands were given to erect a Church thereon, the Advowſon thereof became appendant to that Mannor, and reputed as parcel thereof, which being Temporal, the other became ſo alſo, as an Acceſſary to the Principal; for which reaſon ſuch an Advowſon paſſeth by the Grant of the Mannor cum pertinentiis kk9 Ed. 4. 39. 33 H. 6. 33. Co. 10. par. Whiſtler's Caſe.. Yea, it hath been adjudged, That by the Grant of a Mannor, without making any mention of the Advowſon, the Advowſon alſo paſſed, becauſe it was parcel of, and appendant to the MannorllCo. ibid. vid. acc. Trin. 8 Jac. C. B. Walter and Bould's Caſe. Bolſtr. 1. par. 32, 33, 34.. And it hath been ever held, That by the Common Law an Advowſon is a Temporal Inheritance, for that it lieth in Tenure, and may be holden either of the King, or of a Common perſon; and hath been held of the King in Capite, or in Knights ServicemmVid. 12 H. 17. 19. 21 Ed. 3. 5.. And were a Quare Impedit hath been brought, the Plaintiff hath counted, that the Defendant held the Advowſon of him by Homage and FealtynnThe Abbot of Webback's Caſe.. And it hath been agreed, that an Advowſon doth lie in Tenure, and that the Lord may diſtrain in the Glebe-Lands for Rents and Services, the Patron's Cattel, if any be there found upon the Land, but not the Cattel of a StrangerooThe Prior of Caſtle-Acre's Caſe verſ. the Prior of Butley. Hugh. Abridg verb. Advowſon. Sect. 3. §. 4..

(7.) Other Reaſons, it ſeems, there are at the Common Law, which prove, That an Advowſon is a Temporal Inheritance; for that a Writ of Right of Advowſon lieth for him, who hath an Eſtate in an Advowſon in Fee-ſimmple, or Right of an Eſtate therein to him and his Heirs in Fee-ſimple. Which Writ being Quod clamat tenere de te pp15 H. 8. per omnes Juſticiarios, & vid. F. N. B. tit. Droit de Advowſon., doth ſuppoſe a Tenure, and lieth not only for the whole Advowſon, but alſo for ſome part thereof. As alſo becauſe a Praecipe quodreddat lieth for it, as hath been Adjudgedqq20 Ed. 4. 15.. p. 210As alſo that a Common Recovery may be ſuffered of an Advowſon, as hath been likewiſe Adjudgedrr35 Eliz. C. B. Crocher and Dermer's Caſe. Poph. 22. vid. Co. 5. par. 40. & 2. par. 74. & 1. par. 56. acc.. As alſo becauſe an Advowſon, as other Temporal Inheritances, may be forfeited by Attainder of Treaſon or Felony, or loſt by Uſurpation, ſix months Plenarty, Recuſancy, Outlawry, Negligence or Lacks of Preſentment, Tranſlation, or Ceſſer, and given away in MortmainssVid. 9 H. 6. 57. Co. 10. par. 55. The Chancellor of Oxford's Caſe.. As alſo for that the Wife ſhall be endowed thereof, and have the third Preſentment; and the Husband ſhall be Tenant thereof by the Courteſie; alſo it is ſucceſſively deviſable among Coparceners, that the priority of Preſentment ſhall be in the eldeſt Siſter; likewiſe it may paſs by way of Exchange for other Temporal Inheritance; and albeit during the vacancy of the Church it be not in it ſelf valuable, yet otherwiſe it is as to an Incumbent; and by Grat of all Lands and Tenements an Advowſon doth paſs, if not by Livery, yet by Deed is tranſferable as other Temporal InheritancesttParſons Law, 39, 40. vid. the Authorities there vouched., and paſs with the Mannors whereunto they are appendant by Preſcription, unleſs there were before a ſeverance by Grant, Deed, Partition, or other Legal ActuuCo. Inſt. 1. par.; which Preſcription is ſo requiſite to Appendancy, as without which it cannot well be at allxx13 Eliz. Dyer 299. in Evileigh's Caſe..

(8.) An Advowſon in Groſs is underſtood as under a more beneficial qualification, than that which is Appendant; and that which is Appendant, may by ſeverance become an Advowſon in Groſs: And therefore in the Caſe, where a man being ſeized of a Mannor whereto an Advowſon was Appendant, and by Deed granting one Acre belonging to that Mannor unà cum Advocatione Eccleſiae, did further by the ſame Deed give and grant the ſaid Advowſon; the Queſtion was, whether the Advowſon did paſs as Appendant to the Acre, or as an Advowſon in Groſs? And the better Opinion was, That by that Grant the Advowſon was ſevered from the Mannor, and was become in Groſs; for that the Deed ſhall be taken moſt beneficial for the Grantee to have the Advowſon in Groſs, and not as Appendant to the Acre. But in that caſe it was Agreed, If the whole Mannor had been granted, then the Advowſon had paſſed as Appendant, and not in Groſsyy33 H. 8. Dyer 48. vouched per …ughs in his Abridg. verb. Adv…ſon, §. 4. ubi, To what things Advowſons may be Appendant, and to what, not and how in ſeveral ſelect Caſes. vid. Hughes, ubi ſupr.. Yet an Advowſon Appendant to a Mannor, deſcending to divers Coparceners, making Partition of ſuch Mannor without mentioning the Advowſon, remains Appendant notwithſtanding ſuch Diviſion and Severance from the MannorzzCo. 8. par. 8. Wiat Weild's Caſe.: Yea, although the Mannor of D. to which an Advowſon is Appendant, be granted, and by the ſame Deed the Advowſon alſo of the Church of D. So, as it is named no otherwiſe than in Groſs, yet it ſhall thereby paſs only as Appendant aaBy the Opinion of Finehden, in 48 Ed. 3. Hughes, ibid..

p. 211(9.) If the King makes a Leaſe for life of a Mannor, to which an Advowſon is Appendant, without making any mention of the Advowſon, the Advowſon remains in the King as in Groſs; as was granted by the Juſtices: And it was ſaid by them, That in ſuch caſe by Grant of the Reverſion, Habendum the Reverſion with the Advowſon, the Advowſon paſſeth not to the Patentee, for that the Advowſon was ſevered, and became in Groſs as to the FeebbCo. 11. par. 47. Liford's Caſe.. And in another Caſe, where it was found before Commiſſioners, That A. was ſeized of a Mannor, to which an Advowſon was appendant, and that he was a Recuſant convict; whereupon two parts of the Mannor were ſeized into the Kings hands, who leaſed the Mannor, with Appurtenances, and all profits and commodities, and Hereditaments to the ſame belonging, unto J. S. for 21 years, if A, &c. and afterwards the Church became void. In this Caſe it was held, That albeit there was no mention in the ſeizure of the Advowſon, yet the Preſentment belonged to the King, and that the King alone ſhould Preſent. Secondly, That there were no words in the Kings Grant to J. S. to carry away the Advowſon from the King, and that notwithſtanding that Grant, the Advowſon remained ſtill Appendant to the MannorccMich. 14 Jac. C. B. rot. 651. The Chancellor of Cambridge and Walgrove's Caſe. Hobb. 127..

(10.) By words implying meerly matter of profit or things gainful, as Cum omnibus commoditatibus, Emolumentis, proficuis, advantagiis, and the like, an Advowſon will not paſs, becauſe it is contrary to the nature of an Advowſon regularly; and therefore the Advowſon of a Vicarage appendant to a Prebend, paſſed not by a Leaſe with ſuch words of ſeveral parts of the Prebend to which ſuch Advowſon was appendantddMich. 16 Jac. C. B. rot. 1877. Jo. London, and the Collegiate Church of St. Mary Southwell's Caſe. Hob. Rep.. Not will an Advowſon appurtenant to a Mannor, paſs by the Grant of an Acre of Land parcel of that Mannor cum pertinentiis; otherwiſe, if the Grant be of the Mannor it ſelf cum pertinentiis eeTrin. 8. Jac. B. R. Walter and Bold's Caſe. Bolſtr. 1. par. fol. 35.. Yet in a Caſe where the King being ſeized of a Mannor to which an Advowſon was appendant, granted the Mannor to J. S. for life, and then granted the Mannor to J. D. after the death of J. S. Habendum cum Advocatione, and then by Parliament the King reciting both the Grants, confirmed them by Parliament: yet it was Adjudged in that Caſe, That the Advowſon did not paſsff33 H. 6. 33. vouched in Colt and the Biſhop of Coventry and Lichfields Caſe Mich. 10 Jac. C. B. Rot. 2642. Hob. Rep.. Nor will an Advowſon (if once Appendant) paſs without ſpecial words of Grant thereof, which may not be ſtrained in the conſtruction thereof to an unuſual or unreaſonable ſenſe, for which reaſon an Appropriation will not paſs by the name of an Advowſon; but (as aforeſaid) an Advowſon of a Vicarage may be Appendant to a Prebend; All which hath been Reſolved in the fore-cited CaſeggMich. 16 Jac. C. B. dict. Londons Caſe.. And if Tenant in Tail be of a Mannor to which an Advowſon is appendant, the Church being full, and he grants proximam Advocatione, and then dies; p. 212by his death the Grant becomes meerly void, as was alſo Reſolved in Walter and Bould's CaſehhTrin. 8 Jac. B. R. Bolſtr. 1. par. 35..

In a Quare Impedit, The Caſe was between the Chancellor and Scholars of Oxford, and the Biſhop of Norwich, and others. The Plaintiff counted upon the Statute of 3 Jac. That J. S. being Owner of an Advowſon, 2 Jac. was a Recufant convict, and that afterwards the Church became void, and ſo they by the Statute ought to Preſent.More's Rep. One of the Defendants pleaded, That the Advowſon was appendant to a Mannor, and that two parts of the Mannor were ſeized into the Kings hands by Proceſs out of the Exchequer, and that the King by his Letters Patents granted the Two parts to the Defendant with the Appurtenances, and granted alſo all Hereditaments (but Advowſons were not mentioned in the Letters Patents) and ſo ſaid, the Preſentation did belong to the Defendant: It was Reſolved, That the Advowſon did not paſs by the word [Appurtenances] without mention of Advowſon or words Adeo plena & integra, & in tam amplo modo & forma; as the Recuſant had the Mannor.

(11.) In caſe a Patron be Outlawed, and the Church becoming void a Stranger doth uſurp, and preſents his Clerk to the Avoidance, and Six months paſs, and afterwards the King, being entitled to the Avoidance by reaſon of the Outlawry, bring a Quare Impedit againſt the Incumbent as being in wrongfully, and remove him: By this means the Advowſon is recontinued again to the Rightful Patron, whereof he was ouſted by the Uſurpation, who upon the reverſal of the Outlawry ſhall Preſent, in caſe the Church becomes void again iiCo. 1. par. Inſtit. 363..

(12.) A man hath Three Avoidances granted him of one Church at one time and by one Deed; The Church becomes void; the Grantor by Uſurpation preſents his Clerk, who is Admitted, Inſtituted, and Inducted, afterwards the Church becomes void again. In that caſe the Grantee ſhall preſent to the Second Avoidance, for that the former Preſentation made by the Grantor uſurping, did not put the Grantee out of all the Avoidances; and Adjudged accordingly kkMich. 18 Eliz. C. B..

(13.) A. ſeized of a Mannor with an Advowſon appendant, preſented B. who was Admitted, Inſtituted, and Inducted; afterwards A. fells the Mannor to which the Advowſon was appendant, unto J. S. The Church becomes void by the death of B. whereupon the Queen 15 Feb. 1588. Preſent J. D. by theſe words, viz. Per mortem naturalem Incumbeatis ibid. vacant. who thereupon 20th of the ſaid Feb. was Admitted, Inſtituted, and Inducted by Letters of Inſtitution, Per Dominam Reginam veram & indubitatam Patronam. The ſaid J. D. dies: The King preſents R. in theſe p. 213words, viz. Ad noſtram Praeſentationem ſive ex pleno jure, ſive per Lapſum Temporis, ſive alio quocunque modo ſpectant. The only Queſtion was, Whether, notwithſtanding all this matter, the Advowſon did remain Appendant or not? And it was Adjudged by the Court, That the Advowſon remained Appendant, notwithſtanding the Queens preſentation of J. D. For it appeared, there was no colour of Title to the Queen to preſent; no Lapſe, for the Preſentation, Inſtitution, &c. were all in the ſame month, wherein the Advoidance was: And it was no Uſurpation by the Queen, becauſe the Preſentation ſuppoſed a Right where none was, and ſo was void; for the Queen meant to do no wrong: And upon the ſame reaſon the Preſentation of R. afterwards by the King was void. And it was then further holden by the Court, That the Preſentation of J. D. being void, it was but a Collation of the Biſhop, which makes no diſappendancy, nor ſo much as a plenarty againſt the Rightful Patron, but that he may bring his Quare Impedit when he will; and if the Biſhop receive his Clerk, the other is out ipſo facto llHill. 17 Jac. C. B. rot. 1840. Gawdy and the Archbiſhop of Canterbury and Rone's Caſe. Hob. 301. Hugh Abridg. ver. Advowſ. Sect. 6. §. ult..

(14.) Although an Advowſon be a kind of Reverſion of a right of Preſentation to a Living or Benefice called Spiritual, yet it is now in the nature of other Temporal Inheritances; and therefore he that hath this Right in him, may either deviſe it by Will, or grant it by Deed, in Fee, or for life, or for years, as other thingsmmCo. 5. 56. 15 H. 7. 8.. And in regard an Advowſon or Jus Patronatus refers to and reſpects not the Oblations and Tithes belonging to the Church, but rather the Building thereof, with the Ground whereon it is built, and the Endowment thereof; if therefore any debate or controverſie ſhould happen to ariſe touching any of theſe laſt mentioned, it might prejudice the Patron as to his Right to the Advowſon; but if the controverſie be only touching the other, viz. the Oblations or Tithes, whether Great or Small, the Jus Patronatus will remain good and entire to the Patron notwithſtanding ſuch Controverſie, provided the Suit doth not extend and be for a fourth part of the whole belonging to the Church, Lindw. de Foro Comp. cap. Circumſpecte, verb. Item ſi Rector, & gl. ibid. verb. quarta pars. And he to whom the Right of Advowſon of any Church appertains, is termed Avowè for diſtinctions ſake, to diſcriminate him from thoſe who ſometime Preſent in the Name of another, as a Guardian that preſents in the Name of his Minor: as alſo to difference him from ſuch as have only for term of their Lives, or of years, or by Intruſion or Diſſeiſin, the Lands to which an Advowſon appertains; the Avowè, properly and ſtrictly taken, being only he who may Preſent in his own Right and in his own NamennBritton, cap. 29..

p. 214(15.) It hath been Adjudg'd, That an Advowſon belonging to a Prebend will not paſs by a Leaſe thereof, albeit it hath in it theſe words, viz. Commodities, Emoluments, Profits and Advantages; becauſe all theſe four words being of one ſenſe and nature, imply things gainful, which is contrary to the nature of an Advowſon regularly, as aforeſaid; yet an Advowſon may be yielded in value upon a Voucher, and may be Aſſets in the hand of an Executor ooDict. Caſ. London verſ. the Collegiate Church of St. Mary Southwell.; and in the foreſaid Caſe of London verſ. &c. it is ſaid, That an Appropriation, nor the Advowſon of it, will not paſs by the name of an Advowſon, yet an Advowſon will be contained under the name of a Tenementpp44 Ed. 3. 33. cited in dict. Caſ.. And where the King granted that Monks ſhould have all their Poſſeſſions of the Abbey in the Vacation for their ſuſtentation; Ruled, that they ſhould not have the Advowſons, becauſe no ſuſtentation aroſe from themqq39 H. 6. cited in dict. Caſ.; nor will an Advowſon, though it be appendant, paſs in the Kings Grant, without ſpecial wordsrrMich. 14. Jac. C. B. Rot. 647. Chancellor, &c. of Cambridge verſ. Walgrave. Hob. Rep.; yet in the Caſe of a Recuſant convict, to whoſe Lands an Advowſon is appendant, the ſeizure of Two parts of his Land for the King is a Seizure by conſequence of two parts of the Advowſon, without mention of itssCaſ. ibid.; and if the King have but Two parts of an Advowſon, yet he ſhall Preſent alone, for no Subject can be Tenant in Common with the King; who (though he be no party to a Quare Impedit) yet if his Title appear clear for him againſt both parties, ſhall have a Writ awarded for him to the BiſhopttIbid.. Or if the King joyn iſſue in a Quare Impedit, which is not found fully for him, yet if a Title do any way appear, the Court muſt award a Writ to the Biſhop for himuuDom. Rex verſ. Biſhop of Recheſter, and Jackſon his Clerk. Hob. Rep..

(16.) A. brought Quare impedit againſt D. The Plaintiff counted that the Defendant had diſturbed him to Preſent ad Vicariam de D. and ſhewed, That the Queen was ſeized of the Rectory of D. and of the Advowſon of the Vicarage of D. and by her Letters Patents gave unto the Plaintiff Rectoriam praedictam cum pertinentiis, & etiam Vicariam Eccleſiae praedict. And it was holden by the whole Court, That the Advowſon of the Vicarage by theſe words doth not paſs; nor ſo in the Caſe of a Common perſon, much leſs in the Caſe of the King: But if the Queen had granted Eccleſiam ſuam of D. then, by Walmſley Juſtice, the Advowſon of the Vicarage had paſſedxxMich. 31 & 32 Eliz. C. B. Rot. 458. Caſe Aſhegell verſ. Dennis. Leon. Rep..

(17.) Although he, who after the death of a Parſon Incumbent hath Right of Preſentation in him, doth not upon a Diſturbance bring a Quare Impedit not Darrein Preſentment, but ſuffereth a Stranger to uſurp upon him; yet he may have a Writ of Right of Advowſon; but this Writ lieth not for him, unleſs he claim to p. 215have the Advowſon to him and his Heirs in Fee-ſimpleyyTerm. Law verb. Quare Impedit.; which Advowſon is valuable, though the Preſentment be notzzTrim. 31 Eliz. C. B. Smalwood verſ. Biſhop of Lichfield. Leon. Rep..

(18.) The Queen ſeized of an Advowſon being void, the Anceſtor of P. Preſented, and ſo gained it by Uſurpation, and then the Church being void he Preſented again, his Clerk dies, and then the Queen grants the Advowſon to Y. the Plaintiff, who brings a Quare Impedit in the Queens Name, ſuppoſing that this Uſurpation did not put the Queen out of Poſſeſſion: It was argued, That the Grant could not paſs without ſpecial words, becauſe it is in the nature of a Choſe in Action: And Dyer, Mead, and Windham held, That this Uſurpation did gain poſſeſſion out of the Queen, and that ſhe ſhould be put to her Writ of Right of Advowſon; but the Opinion of Anderſon Cheif Juſtice was clearly, That the Queen was not out of Poſſeſſion; for he ſaid, That it was a Rule in our Books, that of a thing which is of Inheritance, the act of a Common perſon will not put the Queen out of poſſeſſion: But if ſhe had only a Chattel, as the next Advowſon, then perhaps it is otherwiſe. But Mead and Windham very earneſtly held the contrary, relying on the Book of 18 E. 3. where Shard ſaid, That if the King had an Advowſon in his own Right, and a Stranger, who had no Right, happen to Preſent, it puts the King out of Poſſeſſion. And the King ſhall be put to his Writ of Right, as others ſhallaaVid. 47 E. 3. 14. b. 18 E. 3. 16.. The Defendant alledged Two Preſentations in his Anceſtor after the Title of the King, and demanded Judgment if the King ſhould have a Writ of Poſſeſſion, and the Plea was admitted to be good. But after Paſch. 25 Eliz. Judgment was given for the Queen, for that ſhe might very well maintain a Quare Impedit, and the two Preſentments did not put her out of poſſeſſionbbPaſch. 28 Eliz. C. B. Yardly verſ. Peſean. Owens Rep:.

(19.) In a Quare Impedit by G. againſt the Biſhop of L. and D. Incumbent: The Caſe was, That a Mannor with the Advowſon Appendant was in the hands of the King, and the Church became void, and the King grants the Mannor with the Advowſon: If the Grantee ſhall have the Preſentation, or the King, was the queſtion. All the Juſtices held clearly, That the Avoidance would not paſs, becauſe it was a Chattel veſted. And Periam ſaid, that in caſe of a Common perſon without queſtion an Advowſon appendant would not paſs by ſuch Grant; for if the Father die, it ſhall go to his Executor: but if it be an Advowſon in Groſs, in caſe of a Common perſon there is ſome doubt: But in the Principal Caſe all the Judges held ut ſupra, and ſaid, That ſo it was in 9 E. 3. 26. Quare Impedit 31. and in Dyer in the Caſe of the Church of Weſtminſter: But F. N. B. is contrary, 33. N. ccMich. 29. & 30 Eliz. Sr. Tho. Gorge. verſ. Biſhop of Lincoln, and Dalton Incumbent. Owen Rep..

p. 216(20.) Of Advowſons there are three Original Writs, whereof one is a Writ of Right, the other two of Poſſeſſion, viz. Darrein Preſentment, and Quare Impedit. And where an Advowſon deſcendeth unto Parceners, though one Preſent twice, and uſurpeth upon his Co-heir; yet he that was negligent ſhall not be clearly barr'd, but another time ſhall have his turn to Preſent when it fallethddSt. 13 E. 1. cap. 5. Vid. Raſt. pla. fo. 101, 144, 496. & Stat. 2 & 3 Ed. 6. 13.. And by the Statute of 3 Jac. 5. every Recuſant Convict is utterly diſabled to Preſent to any Eccleſiaſtical Living, or to Collate or Nominate to any Donative whatſoever, the Advowſon of every ſuch Recuſant being left to the diſpoſition of the Univerſities of Oxford and Cambridge eeSt. 3 Jac. c. 5.Jas 5. Alſo by the Statute of 13 E. 1. 5. it is directed, what Action ſhall be maintained by him in the Reverſion, who is diſturbed to Preſent after the Expiration of a particular Eſtate; where there is alſo provided a Remedy for him in the Reverſion or Remainder, or others that have right, where there is an Uſurpation of an Advowſon during any particular Eſtate: And that Judgments given in the Kings Courts touching Advowſons ſhall not be avoided by Surmizes, but by lawful meansffSt. 13 E. 1. cap. 5.. Likewiſe it is Statute-Law to hold, That Advowſons ſhall not paſs from the King but by Special words; for when the King doth give or grant Land or a Mannor with the Appurtenances, unleſs he make expreſs mention in his Deed of Advowſons of Churches, when they fall, belonging to ſuch Mannor or Land, they are reſerved to him, notwithſtanding the word [Appurtenances,] albeit among Common perſons it hath been otherwiſe obſervedggSt. 7 Ed. 2. 15. & Co. lib. 10. fo. 63. & Dyer, fo. 350.; nor is it lawful to purchaſe an Advowſon, during the dependancy of a Suit at Law concerning the ſamehhSt. 13. Ed. 1. c. 49..

(21.) If a Feme Covert be ſeized of an Advowſon, and the Church becomes void, and the Wife dieth, the Husband ſhall Preſent iiDyer 26. 9 Ed. 4. 47. a. Co. ſupr. Lit. 120. 14 H. 4. 12.. Where Parſon and Vicar be Endowed in one Church, and the Vicarage becomes void, the queſtion is, To whom the Advowſon of the Vicarge doth belong, and who in that caſe ſhall be ſaid to be the Patron of the Vicarage? Whether the Patron of the Parſonage, or the Parſon? It ſeems the Books at Common Law, the Judges and the Court, were divided in Opinion touching this pointkk17 E. 3. 51. Parſons Law, cap. 23.; ſome of the Judges were of Opinion, That the Advowſon of the Vicarage appertains to the Parſon; Others, that it belongs to the Patron: Such as inclined, that it is in the Patron llMich. 16 E. 3. Fitz. Q. Imp. 145. by Parninge and Hill., gave for reaſon, That the Ordinary cannot make a Vicar without the aſſent of the Patron, 5 E. 2. Quare Impedit 165. puts the Caſe, That although the Vicarage be Endowed with the aſſent of the Patron and Ordinary, yet the Advowſon of the Vicarage p. 217doth remain in the Parſon, becauſe the ſame is parcel of the Advowſon of the ParſonagemmParſons Law, c. 23.. And 16. E. 3. Grants. 56. it was a queſtion, Whether by the Grant of the Advowſon of the Church, the Advowſon of the Vicarage did paſs? and there it was ſaid by Stone, That it doth paſs as Incident to the Parſonage nnIbid. 17 E. 3. Grants, 66. 13 R. 2. Juriſdiction, 19. 16 E. 3. Mans Defaults, 166.. And in regard the Vicar is as the Parſons Subſtitute, and his Endowment originally only as a Maintenance for him in officiating the Cure for the caſe of the Parſon, whoſe Concern it is to ſee that he be a fit and able perſon ſufficient for the Cure, it ſhould thence ſeem rational that the Parſon ſhould be his Patron, to Preſent ſuch an one to the Vicarage as ſhall be ſufficient for the Cure; for which reaſons the Patronage of the Vicarage ſhould ſeem rather to belong unto the Parſon, than to the Firſt Patron of the Parſonage Appropriate.

(22.) An Advowſon cannot, it ſeems, at the Common Law be called a Demeſne, for that it is not ſuch a thing as a man hath a Manual occupation or poſſeſſion of, as he hath of Lands, Tenements, and Rents, whereof he may ſay in his Pleading, That he was ſeized thereof in his Demeſn as of Fee, which he cannot ſay that hath only the Advowſon of a Church, becauſe it lies not, as the other, in Manual occupation: And therefore in the caſe of Advowſon of a Church, he may only ſay that he was ſeized as of Fee, and not in his Demeſn as of FeeooLittl. Tenures, l. 1. c. 1. verſ. fin., whether it be an Advowſon in Groſs or Appendant, which Appendancy is held to be for the moſt part by Preſcription, and muſt relate to ſuch things as are in their own nature of a perpetual continuance; for which reaſon it is, That Advowſons cannot be ſaid to be Appendant to Rents, Services, and the like, becauſe ſuch things are extinguiſhableppCo. 4. Terringham's Caſe.. And although an Advowſon be not properly ſaid to be a Demeſn, yet it may be Appendant to a Demeſn, as of Lands or things Corporeal and Perpetual, and therefore (as ſuppoſed) not to a Houſe of habitation, meerly quatenus ſuch, yet to the Soyl, whereon the Houſe is erected; whereby the Law (which hath the cleareſt proſpect of Caſualties at a diſtance) hath provided, that the Advowſon ſhall ſtand, though the Houſe fallqq10 H. 7. 13. b. by Reeble. Parſ. Law, cap 8. Ubi, 16 H. 7. 9. by Rede.; but an Advowſon Diſappendant and in Groſs, which in man hath alone, and not by reaſon of any other thing, but ſevered from the Lands to which it was Appendant, ſuch an Advowſon is exempt from divers prejudicial Incidents which the other, viz. the Appendant, cannot well avoid. And where a Subject or Common perſon hath an Advowſon Appendant to a Mannor, and there be an Uſurpation p. 218upon him, by a Preſentation made by a Stranger, whoſe Clerk is in for Six months, though this makes the Advowſon of ſuch Common perſon Diſappendant to his Mannor; yet it is otherwiſe in caſe of the King, who may grant the Advowſon notwithſtanding ſuch Uſurpation; for a man cannot put the King out of poſſeſſion either by Preſentation or Uſurpation, as hath been AdjudgedrrMich. 13, 14 Eliz. Bendioes, dd. …'Opinion del Curl. Hob. Rep. vid. 16 E. 3 F. Q…. Impedit, 67.. Nor doth the King's Preſentation by Lapſe ſever the Advowſon from the Mannor, or cauſe it to become diſappendant, as in Gawdy's Caſe againſt the Archbiſhop of Canterbury and Others, was likewiſe Adjudged; in which Caſe it was alſo ſaid by Habard Chief Juſtice, That neither doth a wrongful Collation of the Biſhops make any Diſappendancy, nor any binding Plenarty againſt the true Patron; but that he may not only bring his Quare Impedit when he pleaſe, but alſo Preſent upon him ſeven years afterssHill. 17 Jac. rot. 184. Caſe Gawdy verſ. Archb. of Cant. & dies. Hob. Rep.. Alſo, whereas it was ſaid before, That an Advowſon cannot be Appendant to things Extinguiſhable, as to Rents, Services, and the like, ſo it ſeems at the Common Law an Advowſon in Poſſeſſion cannot be Appendant to a Reverſion expectant upon an Eſtate for life; for the Caſe was, The King ſeized of a Mannor with an Advowſon Appendant, granted the Mannor to J. S. for life, and then granted the Mannor to J. D. after the death of J. S. Habendum una cum Advocatione; and then by Parliament the King reciting both the Grants, confirmed them by Parliament, yet the Advowſon paſſed notttCaſe of the Abbeſs of Sion, 38 H. 6. 33. Cit. in Colt and Glovers verſ. Biſhop of Coventry and Lichf. Mich. 10 Jac. Rot 2642. Hob. Rep.. Finally, whereas alſo it hath been Adjudged (as aforeſaid) that the King cannot be put out of poſſeſſion either by Preſentation or Uſurpation, this ſeems to refer only as to the Kings Advowſon, and not as to his preſent Preſentation; for the Opinion of Sir H. Hobart Chief Juſtice is, That although the King may be diſpoſſeſſed of his preſent Preſentation, he cannot be ſo of his Advowſon, and therefore he may ſtill grant it, notwithſtanding the Uſurpation, as was Judged in a Writ of Error, upon a Judgment given to the contrary, between the King and Campion for the Vicarage of Newton Valence uuPaſch. 14 Jac rot. 1030. Lord Stanhope verſ. the Biſhop of Lincoln, and others. Hob. Rep..

(23.) A Donative in the Kings Gift may be with Cure of Souls, as the Church of the Tower of London is a Donative in the Kings Gift with Cure; as in the Caſe of Fletcher and Mackaller, where Information was brought upon the Stat. 31 Eliz. of Simony for procuring him to be promoted to the Church of the Tower for money; and per Curiam, it well liesxxMich. 9 Car. B. R. inter Fletcher and Mackaller..

p. 219(24.) The Queen hath the Advowſon of the Vicarage of H. and grants the Vicarage to J. S. It was the Opinion of all the Juſtices, that the Advowſon paſſeth not; for that the Vicarage is another thing than the Advowſon of the VicarageyyCro. par. 1.. The Queen ſeized of a Mannor, to which an Advowſon was appendant, granted the Mannor cum Advocatione Eccleſiae, the Church being then void: It was Adjudged the Avoidance did not paſs, but the Queen ſhould Preſent pro hac vice zzHill. 29 Eliz. Sir Tho. Gorges Caſe. Mores Rep.. And in the Queen and Huſſie's Caſe it was Reſolved, That a double Preſentation would not put the Queen out of poſſeſſion, if ſhe hath RightaaMores Rep.. And in Stephens and Clarks Caſe it was Reſolved, That the Grant of the next Avoidance to one during the Avoidance, is void in LawbbMore. ib..