such a custom, the custom, not the canon, must be observed. 1 Burn, Ecc. L. 401-403; and see Gibbs v. Flight, 16 Law J. 136, cp.

Upon the churchwarden being thus chosen, he is sworn into office before the archdeacon or other ordinary. The oath administered is thus: "You shall swear, truly and faithfully to execute the office of a churchwarden within your parish, and according to the best of your skill and knowledge present such things and persons as to your knowledge are presentable by the laws ecclesiastical of this realm: so help you God, and the contents of this book." 1 Burn, Ecc. L. 404. If the ordinary refuse to swear him, a mandamus will lie to compel him; or if the party chosen refuse to attend to be sworn, and to take upon himself the office, he may be libelled in the ecclesiastical court and excommunicated. Id. 403.

Their rights and duties.] Churchwardens are ex officio overseers of the poor of their parish (43 El. c. 2, s. 1) where the poor are maintained by the parish, and not by townships or hamlets within it. And they, together with the overseers yearly nominated and appointed by the justices, form one body of overseers of the poor, and exercise all the powers and authorities and perform all the duties assigned to them in that character, by statute, and by the rules and orders of the poor law commissioners. See 3 Arch. J. P. passim. As overseers, also, they and the appointed overseers of the poor, and their successors, are made a body corporate, so far as respects the taking and holding of workhouses and lands purchased by them in trust for the parish. 59 G. 3, c. 12, s. 17. As churchwardens also they are in some respect a quasi corporate body; and the goods of the church vest in them and their successors in office, and they may maintain actions in respect of them; but they cannot dispose of them, without the consent of the parish. 1 Burn, Ecc. Law, 408. As churchwardens, they must keep the church in proper repair, and provide every thing necessary for the decent and orderly performance of divine service and the administration of the sacraments, and for that purpose, with the assent of the parish vestry, must if necessary lay a church rate. See ante, p. 1. As churchwardens, also, they must, at the end of the year, or within a month after it, before the minister and parishioners, render a due account of all moneys received and paid by them, and hand over any balance which may remain in their hands (1 Burn, Ecc. L. 411-413); and if it appear that they have made or authorized any illegal or fraudulent payment from the church rate, they are liable to a penalty not exceeding 207., and treble the amount of the payment so made. 7 & 8 Vict. c. 101, s. 32. Amongst the duties of churchwardens, also, is that of making presentments at the annual visi

tations, of all public and notorious excesses of prelates and other clerks, and of all offences punishable by the ecclesiastical law, committed by any of the parishioners during the year of office. 1 Burn, Ecc. L. tit. "Visitation."

Churchwardens and overseers of the poor are also ex officio members of the select vestry, where such a vestry is established in a parish. 59 G. 3, c. 12, s. 1. It is the duty of the churchwardens and overseers also, every year, to make out the jury lists, and to affix a copy on the church door on the first three Sundays in September. 6 G. 4, c. 50, ss. 8, 9.

Actions, &c. by and against them.] Churchwardens may bring actions respecting the goods of the church, in like manner as any owner of goods may do. They may also sue in the ecclesiastical court or before justices of the peace for arrears of church rate. Ante, p. 5. This, however, must be done during the time they are exercising their office; after they go out of office, they cannot sue for church rate, though made and payable during their year, or sue for any injury to the goods of the church during their year; such suit or action must be brought by their successors. 1 Burn, Ecc. L. 413, 414. But if they commence such suit or action during their year of office, they may continue it afterwards. Id. If sued for anything done by them as churchwardens, they may plead the general issue and give the special matter in evidence; and if they obtain a verdict, they shall have full costs as between attorney and client. 7 Jac. 1, c. 5; 21 Jac. 1, c. 12; 5 & 6 Vict. c. 97, s. 2. As to actions against them as overseers of the poor, see 3 Arch. J. P. 49.

Churchwardens in new districts.] The appointment of churchwardens and chapelwardens for the churches or chapels built under the several church building Acts, is regulated by those Acts respectively. See stat. 59 G. 3, c. 45, s. 73; 59 G. 3, c. 134, s. 30; 1 & 2 W. 4, c. 38, s. 25; 6 7 Vict. c. 37, s. 17; 8 & 9 Vict. c. 70, ss. 6, 7. One is usually appointed by the incumbent, the other by the vestry or pew renters.

CLERGYMEN OF THE PARISH.

Who, 13.
Advowson 14.
Tithes, 23.

The rights and privileges
of clergymen, 35.
Their duties, 36.

The parish clergymen are-the parson or rector when incumbent, or the vicar and the curate. The parson or rector is clerical or lay: when a clergyman he is called the incumbent ; when a lay person, he is called the impropriator; and in the

latter case, a vicar is appointed and endowed, for the purpose of performing the ecclesiastical duties in the parish. The curate is an assistant to the rector or vicar.

Advowson.] An advowson is the right of presenting to a church or ecclesiastical benefice (2 Bl. 21; 3 Cr. t. 21, c. 1, ss. 4, 5), npon any vacancy which may occur during the continuance of the party's title. It is said to be appendant, when the right is annexed to a manor, and always passes with it (2 Bl. 22; 3 Cr. t. 21, c. 1, ss. 8-11); or in gross, when it is not so annexed, but has been separated from it (2 Bl. 22; 3 Cr. t. 21, c. 1, ss. 12-18).

Advowsons are also said to be presentative, collative, and donative:-presentative, where the patron has the right to present to the bishop or ordinary, and to demand of him that he institute his clerk, if he find him canonically qualified (2 Bl. 22; 3 Cr. t. 21, c. 1, s. 19);—collative, where the bishop and patron are one and the same person (2 Bl. 22; 3 Cr. t. 21, c. 1, s. 20):-donative, where the Queen, or any subject by her licence, founds a church or chapel, and ordains that it shall be in the gift or disposal of the patron, subject to his visitation only and not that of the ordinary, and vested absolutely in the clerk by the patron's deed of donation, without presentation, institution or induction (2 Bl. 23 ; 3 Cr. t. 21, c. 1, s. 21), but which ceases to be donative, if the patron, waiving his right of donation, present at any time a clerk to the bishop (2 Bl. 23, 24; 3 Cr. t. 21, c. 1, s. 22).

An advowson, like all other incorporeal hereditaments, is not capable of corporeal seisin or possession; but until the church becomes void, it is impossible to acquire in it any thing more than a seisin in law (3 Cr. t. 21, c. 1, s. 23); and therefore in pleading any incorporeal hereditament, we do not say that the owner is seised in his demesne as of fee, but merely that he is seised as of fee and right, omitting the words "in his demesne."-Arch. Pl. & Ev. 121. In other respects, a person may have the same estate in an advowson, as in a corporeal hereditament, he may be tenant in fee simple, having the right of presentation in him and in his heirs for ever;-or he may be tenant in tail, having the right of presentation in himself and his issue;-or he may have it for life or years;-he may be entitled to it in possession, remainder or reversion;-and it may be holden in joint tenancy, coparcenary or in common. 3 Cr. t. 21, c. 1, ss. 24, 25. husband may be tenant by the curtesy of an advowson, even although the church have not been void during the coverture. Id. ss. 26-28. So, a widow may be tenant in dower of an advowson: if it be an advowson in gross, she is entitled to the third presentation (Id. ss. 29,30); if an advowson appendant, and she be endowed of the manor, she shall be entitled to it

of course, and if the church become vacant during the continuance of her estate, she may present to it, or if she be endowed of the third part of the manor, the third part of the advowson shall pass. Id. s. 29. Advowsons may be extended under an elegit (1 & 2 Vict. c. 110, s. 13); and are assests for payment of debts. 3 Cr. t. 21, c. 1, ss. 40–42.

When a vacancy occurs in a parsonage or vicarage, the patron, to whom the advowson of the church then belongs, may present his clerk, that is to say, may offer his clerk to the bishop of the diocese to be instituted (1 Bl. 389; 3 Cr. t. 21, c. 2, ss. 1-3). The bishop however may refuse him,— either in case the patron be excommunicated and remains in contempt forty days (1 Bl.389),-or where the clerk himself is deemed unfit for the sacred office, as being an outlaw, or under age, or being objectionable in respect of faith or morals, or as being deficient in learning. 1 Bl. 389, 390; 3 Cr. t. 21, c. 2, ss. 46-48. If, on the contrary, the bishop declare that he approves of the presentee, the clerk is then said to be admitted. 3 Cr. t. 21, c. 2, s. 4. The clerk is next instituted, that is to say, the cure of souls is committed to him by the ordinary, and which ceremony is performed thus: the clerk kneels before the ordinary, whilst the latter reads the words of the institution, out of a written instrument drawn ap for the purpose, with the episcopal seal appendant to it, which instrument the clerk holds in his hand during the ceremony. 3 Cr. t. 21, c. 2, s. 5.

The induction next follows, being the investiture of the temporal part of the benefice, as institution is of the spiritual. It is done by mandate from the bishop to the archdeacon, who usually issues a precept to other clergymen to perform it for him: and the ceremony is thus,—the inductor and clerk being at the church, the former takes the clerk's hand and lays it upon the ring of the church door, 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;" the inductor then opens the door, puts the clerk into the church, and the latter usually tolls the bell, to make his induction known to his parishioners. Id. ss. 7, 8. This completes the clerk's title: before presentation he has no right; by presentation, he acquires a right to the benefice; by institution, he acquires a right to enter on the glebe, take the tithes, &c.; and by induction he acquires a right to sue in respect of them. Id. s. 6. He is quasi tenant for life; and if he manure and sow with corn any part of his glebe, he will be entitled to emblements, and they will pass by his will. 1 Cr. t. 3, c. 1, ss. 55, 56.

As to the party entitled to present the clerk ;-the tenant in fee, fee tail, for life or years, if the vacancy occur in his

lifetime and during the continuance of his estate, is the party to present (3 Cr. t. 21, c. 2, ss. 18, 19); if he die after the vacancy and before presentation, the right (being deemed a chattel real) goes to his executors or administrator, not to his heir. Id. s. 20. So, where a person has a grant of the next presentation, this is a chattel real; and if there be no vacancy during his lifetime, the right to present goes to his executors or administrator. 3 Cr. t. 21, c. 2, s. 21. Infants may present. Id. ss. 22-24. A husband entitled in right of his wife, presents in the names of both. Id. s. 18. Jointtenants and tenants in common should present jointly; if they present severally, the ordinary may refuse to admit the presentee (Id. ss. 25, 26); or if they make partition, they present in turns, as may have been agreed upon. Id. ss. 32-34; 7 Anne, c. 18, s. 2. Coparceners present jointly; or if they cannot agree in the presentation, they may present in turn, the eldest sister presenting first, and then the others in their order. Id. ss. 27-31. Mortgagors may nominate, but the mortgagee is the person to present, as he has the legal estate (Id. ss. 35, 36); and the same as to tenants by statute staple or statute merchant, or elegit. Id. s. 37. Bankrupts, when owners of an advowson or next presentation, have a right to present upon a vacancy occurring before it is sold. 3 Cr. t. 21, c. 2, s. 38. But an alien cannot present (Id. s. 39); nor a person outlawed (Id s. 40); nor a Roman Catholic, the presentation to all benefices belonging to him being vested in the universities of Oxford or Cambridge. Id. ss. 41-44. Where a lunatic is entitled to present, the lord chancellor presents for him. Id. s. 45.

The right of presentation, and that of nomination to a church, are distinct things: presentation is the offering of a clerk to the bishop; nomination, an offering of the clerk to the patron for presentation. 3 Cr. t. 21, c. 1, s. 6. And these rights may exist in different persons: for instance, 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. Id. Or, where the legal estate in the advowson is in a trustee, and the right of nomination is in the cestui que trust, the one must present according to the other's nomination. Id. s. 7. So, where there is mortgagor and mortgagee of an advowson, the former may nominate, but the latter must present. Id. s. 7; Id. c. 2, s. 35.

The right of presentation pro hac vice may be forfeited, either by lapse, or by simony.

Lapse a species of forfeiture of the right of presentation to an ecclesiastical benefice, pro hac vice; if the patron do not present within six calendar months after avoidance, the ordinary may present; and if the ordinary fail to present within