Imatges de pàgina
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CHAP. III.

OF ADVOWSONS.

9 Geo. 2. c. 36. Sect. 5.

2 Bl. Com. 21. 1 Inst. 119.

Gibs. 756.

3 Smith's W. Na. 160.

No College which doth or shall hold so many Advowsons, &c.] Advowson is an incorporeal hereditament, and consists of the right of presentation to a church or ecclesiastical benefice: and he who has this right is the patron. For when lords 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 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.

The present universities of Europe were originally, the greater part of them, ecclesiastical corporations, instituted for the education of churchmen; they were founded by the authority of the Pope, and were so immediately under his protection, that their members, whether masters or students, had all of them what was then called the benefit of clergy, that is, were exempted from the civil jurisdiction of the countries in which their respective universities were situated, and were amenable only to the ecclesiastical tribunal. Edw. I. the English 4 Bl. Com. 426. Justinian, according to Sir Matthew Hale, made effectual provision for the recovery of advowsons and presentations

to

to churches as temporal rights, in which, before, the law Hale's Hist. C. was "infinitely lame and defective" by Stat.West. 2 c. 5. 13 Edw. I. c. 5. A. D. 1285.

In R. II. a statute was made (c. 12.) for the restraint of aliens to take any benefices or dignities ecclesiastical, or farms or administration to them without the king's special license, upon pain of the statute of provisors, which being remedied by a former statute, where the alien took it to his own use; it is by that statute remedied, where the alien took it to the use of another; though probably it might be intended, if any other purchased to the use of an alien; and that the words, " as to the use of another," should be " or any other to his use." In 15 Rich. II. c. 5. a statute was made for the relief of lords against mortmain, where feoffments were made to the use of corporations; and an ordinance was made, that for feoffinents past the feoffees should before a day either purchase license to amortise them, or aliene them to some other use, or other feoffments to come, or they should be within the statute of mortmain.*

L. 154. by Serj. Runnington.

Lord Bacon's

Reading on
Uses, by

Statute of

Rowe, 26.

As the statutes of mortmain had prevented the clergy from having the land itself, it seems likely, since they were masters of the civil law, that the usus fructus of that law suggested to them the possibility of their still being able to have the benefit of the land, although they were debarred from having the land itself; and that the plan which they hit upon was, to take shelter under the laity, and get feoffments made to laymen for their own use; and by that mean they enjoyed the profits of the land; Rowe's Lord but still they had no mode of enforcing an execution of the trust which had been reposed in the feoffee.

* Uses are of a very ancient date indeed, even before the statute of Mortmain.-Rowe's Notes on Lord Bacon, 109.

Bacon on
Uses, 92.

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3 Smith's W. N. 155.

3 Smith's W. N. 160.

The same observations are in many respects applicable to advowsons.

Dr. A. Smith, who speaks without any extraordinary bias in favour of the universities, says, that "the cha ritable foundations of scholarships, exhibitions, bursaries, &c. necessarily attach a certain number of students to certain colleges, independent altogether of the merit of those particular colleges, were the students, upon such charitable foundations, left free to choose what college they like best, such liberty might perhaps contribute to excite some emulation among different colleges."

But to this it may be remarked, that the right of presentation to benefices, which has been vested in or purchased by many colleges offers a considerable stimulus. to this laudable emulation; and to have finally rewarded the labours of men who have proved ornaments to the English church.

Advowsons being an inheritance incorporeal, and not lying in manual occupation, cannot therefore pass by livery, but may be granted by deed or will; but this does not extend to ecclesiastical persons who are seized of advowsons in right of their churches, nor to masters and fellows of colleges, nor to guardians of hospitals, who are seized in right of their houses; and who are all entitled to their writs of darien presentment, &c. By 13 Ed. I. st. 1. C. 5. s. 4. all these being restrained (the bishops by Eliz. c. 19. and the rest by 13 Eliz. c. 10.) from making any grants but of things incorporeal, of which a rent or annual profit may be reserved; and of that sort advowsons, and next avoidances which are incorporeal and lie in grant, cannot be. And therefore such grants, however confirmed, are void against the successor, though they have been adjudged to be good against the grantors, 1 Burn. Eccl. 9. as bishop, dean, master, or guardian, during their own

times.

an

23 Car. 2. Atkin v.

An advowson in esse is different from the patronage 1 Ca. Cha. 214. of an hospital newly created; for the land or an advowson no desultory kind of inheritance can be limited Montague. without act of parliament; because then he who had the right could not always know against whom to seek his remedy; but of the patronage of an hospital newly founded, there can be no precedent right, and therefore at the very first institution it may be limited as the king pleases, like the case of a rent de novo.

The statute 12 Ann. st. 2. c. 12. which forbids the 1 Burn.Eccl. 9. purchase of advowsons, is held to be confined to clergymen only, either as to purchasing themselves, or in the name of any person in trust for them; all other persons, therefore, continue to purchase next avoidances, as they did before, and to present to the living, without fear of the consequences attached to simony.

From all these considerations, but particularly as advowsons are heritable property, they are also devisable; and as the presentation is entirely incorporeal, and derives no return out of the profits or rents of land, so as to savour of the realty, I am inclined to think that such a bequest to any charitable society would be maintained by the court; and this with more certainty, if the charity were incorporated; because in that case its permanence would preclude any doubt about there being always an existing patron to present a new clerk upon every avoidance, without the danger of lapse.

By the fifth section of the statute 9 Geo. II. c. 36. colleges which were possessed of as many advowsons of ecclesiastical benefices as were equal in number to one moiety of the number of their fellows or students upon the foundation, were rendered incapable of purchasing, receiving, or holding any others, except such as were given for the benefit of the headships thereof.

45 Geo. 3. c.

210.

This was provided lest the successions should happen so rapidly, as that fit members might not be left either to govern the college, or to succeed to the vacant benefices. But it was found, after the experience of nearly seventy years, that the restriction rendered that succession too slow; and that the removal of it would have a tendency to promote learning, and to provide a better supply of fit and competent parochial ministers; it was therefore repealed in 1805.

The extent, however, of this clause, and indeed of the whole statute, having undergone a very full discussion before Lord-keeper Henley, in 1757, upon the case of Mr. Tancred's will, it may not require an apology for retaining, from the first edition of this work, that case at 1 Black Rep.90. length, however it may be affected by the late act of 45 Geo. III.

Amb. 351.

Mr. Tancred, by deed in 1721, conveyed his estate to feoffees to the use of himself for life, remainder to his first and other sons in tail, remainder to certain officers of Christ's college, Cambridge, to maintain certain students there, in the sciences of physic and divinity, and four students of the law at Lincoln's Inn, and also certain pensioners, viz. decayed merchants, soldiers, and clergymen, who should reside in his capital house at Wicksley. By his will in 1746, duly executed, he confirms this deed; but fearing the statute of mortmain of 9 Geo. II. might defeat the uses thereof, he orders that in case the said uses or any of them should be contrary to law, the estates so settled should go to the fellows and scholars of Christ and Caius college, to be divided in certain proportions for the augmentation of their stipends. On an information to establish this charity, at the relation of Christ college, against the heirs-at-law, there arose two questions:

1. Whether

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