English clergy continued to receive maintenance from the cathedral church, and to officiate only pro tempore in the parochial churches, till about the year 900. "Advowson" (says the learned Godolphin) "is a kind of bastard French word, either because the patron thereof claiming his 'jus patronatús' 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." According to his definition of advowson, it is "a kind of reversionary right of presentation to an ecclesiastical benefice in a man and his heirs for ever" (g). [It is observed also by Godolphin, that advowson, being a right of presentation reserved by a founder to himself, his heirs, and his successors, is applicable to other ecclesiastical foundations, as well as those of churches. And the truth of this remark is evidenced by several "quare impedits" brought on such occasions as a disturbance to a prebendary, 7 Rich. 2; in a presentation to a vicarage, 5 Edw. 3, 20; to a provostry, 17 Edw. 3, 20; to a chaplain, 17 Edw. 3, 12. The 17th canon of the council held at Rome in the year 1180, enacts, "that if a question arise concerning presentations of divers persons to one church, or concerning the gift of patronage, if such question be not decided within the space of three months, the bishop shall place in the church the person whom he himself conceives to be most worthy." Lastly, the canon law characterised the "jus patronatus" by the epithets "honorificum," "utile," "onerosum.” "Honorificum," because the patron was entitled to great respect from the parish, and especially to the chief seat in the church; "onerosum," because it was incumbent on him to defend his church against all spoliation of her revenues (h), and to secure her fabric and all its appurtenances against dilapidations; "utile," because if he or his family fell into decay, the church was pre-eminently bound to supply his necessities before those of any other necessitous person (i). given by See ing Acts. The Church Building Acts contain various provisions with Patronage respect to the rights of the patron to the advowson of churches Church Buildbuilt under the regulations of these particular statutes. these Acts in the Appendix. The sections 125, 126, 127 and 128 of 1 & 2 Vict. c. 106, should also be consulted upon this head. This act is printed under the title Plurality, in the third volume of this work.-ED.] 1. The right of advowson, or of presenting a clerk to the Foundation (g) [See Blackstone's defin. b. ii. p. 20.] (h) [See Hoskins v. Featherstone, 2 Brown's Chancery Reports, 552, for the power of the patron where the benefice is vacant and there is no one to protect the rights of the church; (i) [See especially on this point, of the Right of Advowson. bishop, as often as a church becomes vacant, was first gained by such as were founders, benefactors, or maintainers of the church; either by reason of the foundation, as where the ancestor was founder of the church; or by donation, where he endowed the church; or by reason of the ground, as where he gave the soil whereupon the church was built (k). For although the nomination of fit persons to officiate throughout the diocese was originally in the bishop, and in no other, yet when lords of manors were willing to build churches, and to endow them with manse and glebe, for the accommodation of fixed and residing ministers, the bishops on their part (for the encouragement of such pious undertakings) were content to let those lords have the nomination of persons to the churches so built and endowed by them; with reservation to themselves of an entire right to judge of the fitness of the persons so nominated. And what was the practice became in process of time the law of the church (). They were called advocati and patroni, because they were bound to protect and defend the rights of the church, and their clerks, from oppression and violence (m). [Tueri et defendere ejus jura tenetur ad instar advocati qui judicio causam alicujus defendit. Lindwood, Provin. const. de foro comp. cap. circumspectè ver. advocatus (but Lindwood in his Gloss. says, that advocatus does not mean patron but defender. See Calvin's Lex, v. "Advocatus," where he says the word is commonly, though not correctly, used as synonymous with patronus.) The right of advowson is given by Mr. Justice Blackstone in his Commentaries, as an instance of an incorporeal hereditament, of which no bodily possession can be had, but which exists solely in contemplation of law (n). Advowsons are of two sorts, appendant and in gross. When annexed to a manor or land, so as to pass with them, they are said to be appendant: when they exist as personal rights, independent of any manor or land, they are said to be in gross (o). Another division is, that they are either presentative, collative, donative or elective (p). In an advowson presentative, the patron presents the parson to the ordinary to be instituted and inducted in his church in an advowson collative, the bishop is both patron and ordinary: in a donative, the patron puts the clerk in possession without any presentation to the ordinary. For elective benefices, see Cathedrals, and Benefice generally. 2. The right of nominating, which at first was annexed to the person building or endowing the church, became by degrees appendant to the manor in which it was built. For the endowment was supposed to be parcel of the manor, and the church was built by such lord for the use of the inhabitants of this manor; and the tithes of the manor were also annexed to the church. Upon all which accounts it was most natural for the right of advowson (which was now become hereditary) to pass with the manor, or with such part of it as might at any time be granted or aliened together with the advowson: to which (whether to the whole or part) it is therefore said to be appendant; that is, to the demesnes, which are of perpetual subsistence, but not to rents or services, which (though parcel of the manor) may be extinguished, and cannot therefore support such appendancy (q). [The advowson was said to be ap- [7] pendant to the manor, being so closely annexed to it that it passed as an incident thereto by a grant of the manor (r): it passes, therefore, by livery without deed, without saying "cum pertinentiis" (s), except in the case of the king (t). A church in one county may be appendant to a manor in another, or the advowson of a vicarage may be and is of common right appendant to a rectory, or to a manor by prescription; and it shall be intended it was granted by the parson before the time of memory. Advowsons may also be appendant for a part or for turn. Two advowsons may be appendant to one manor, or one advowson to two manors; and several advowsons may be appendant to the same manor, though the manor extends into several parishes (u). Advowson will not pass by the word "land," but it will by "hereditaments" (x), or by the word "church" (y). It is said that an advowson might have been appendant to an earldom or other honour; but this must be understood of such as had demesnes attached to them, for being itself an incorporeal hereditament, it can only be appendant to a corporate thing (z): and therefore it is that a presentation to a church is allowed to be equivalent to a corporeal seisin of the land; but till the church becomes void, it is impossible to acquire any thing more than a seisin in law of an advowson (a). But a demise of a manor cum pertinentiis for years will not pass an advowson to a lessee, because a spiritual benefice cannot be granted for years or at will (b). The grant of a manor, with all advowsons, &c. thereunto attached, does not include (q) Gibs. 757; Wats. c. 7; Co. Litt. 122 a. [See also Comyn's Dig. tit. Advowson; Tyrringham's case, 4 Rep. 39; 1 Roll. Abr. 230; Potter v. Lord North, 1 Vent. 386; Hill v. George, Plowd. 170.] (r) [Cruise's Digest, 9.] (s) [1 Inst. 121, 6, 307.] (t) [Co. 11, fol 49; Lifford's case, Dyer's Rep. 300.] (u) [See Mirehouse on Advowsons, S. 9, citing Dyer's R. 350; Roll. Abr. 230; Com. Dig., tit. Adv.; Degge's P. C. pt. 1, c. 13, 195; The Grocers' Company v. The Archbishop of Can- (x) [Savil v. Savil, Fortescue, 351; (y) [1 Leon. 191; Co. Litt. 17; Hobart, 152; Cro. Eliz. 163.] (z) [1 Inst. 121; Tyrringham's (a) [3 Cru. Dig. 6.] gross. [ 8 ] an advowson once severed, though it was appendant to the manor 800 years since (c).-ED.] If he that is seised of a manor, to which an advowson is appendant, grants one or two acres of the manor, together with the advowson; the advowson is appendant to such acres; especially after the grantee hath presented (d). But this feoffiment of the acre with the advowson ought to be by deed, to make the advowson appendant; and the acre of land and the advowson ought to be granted by the same clause in the deed for if one, having a manor with an advowson appendant, grant an acre parcel of the said manor, and by another clause in the same deed grants the advowson; the advowson in such case shall not pass as appendant to the acre; but if the grant had been of the entire manor, the advowson would pass as appendant (e). So if an husband, seised in right of his wife of a manor to which an advowson is appendant, doth alien the manor by acres to divers persons, saving one acre ; the advowson shall be appendant to that acre. Or if a lessee for life of a manor, to which an advowson belongs, alien one acre, with the advowson appendant, the advowson is thereby appendant to that acre (f). An advowson of a vicarage may be appendant to a parsonage, as being derived and endowed out of the same. Upon which account it is, that if a parson be patron of a vicarage, and doth lease the parsonage to another, the patronage of the vicarage shall pass as incident thereunto. And upon the same account, the rector of common right is ever esteemed patron of the vicarage, though by some ordinance or composition, or by the king's grant, it may be appointed and settled otherwise. And so may even an advowson of a vicarage be appendant unto other things, as to a manor, by reservation upon the appropriation, because the advowson of a rectory was appendant thereunto; as also by the grant of the parson, before the time of memory. And in this case, although the act of appropriation be not extant, yet the use of presenting time out of mind is a sufficient evidence of the appendancy to the manor, contrary to the common right (g). Advowson in 3. The right of advowson, though appendant to a manor, castle, or the like, may be severed from it; and being severed, it becomes an advowson in gross [and belongs to a person possessing no corporeal estate.-ED. And this may be effected divers ways: As, 1. If a manor or other thing to which it is appendant is granted, and the advowson excepted (h). 2. If the advowson is granted alone, without the thing to which it was appendant (i). 3. If an advowson appendant is presented to by the patron, as an advowson in gross (j). A disappendancy may be also temporary; that is, the appendancy, though turned into gross, may return: As, 1. If the advowson is excepted in a lease of a manor for life; during the lease it is in gross; but when the lease expires, it is appendant again (k): 2. If the advowson is granted for life, and another infeoffed of the manor with the appurtenances; in such case the reversion of the advowson passeth, and at the expiration of the grant it shall be appendant (1): 3. If the advowson is allotted to one coparcener, and the manor to another, and she who had the advowson dies without issue, it is appendant again: and so if the demesnes are allotted to the one, and the services to the other, the advowson becomes in gross; but if the one die without issue, and the manor descend to her who had the services, the advowson becomes appendant, as it was before (m): 4. If tenant in tail aliens some part of the manor with the advowson, and the alienee grants the advowson to a stranger; or if a common person hath an advowson appendant, and a stranger presents his clerk, who is in by six months; in both these cases the advowson is made disappendant; but yet, if in the first case the land aliened is recovered by tenant in tail, and in the second case the rightful patron recovers, the appendancy returns (n); but the statute 7 Anne, c. 18, provides that no usurpation shall displace the estate of the patron (o): 5. Where an advowson is appendant to a manor, and the owner mortgages the manor in fee, excepting the advowson, by this means it is become in gross; but if the money be paid punctually at the day, then it is become appendant again, and if it is paid after the day, it is appendant in reputation, and may pass by the name of an advowson appendant, in a grant or other conveyance, though in reality the appendancy is destroyed; for if it is severed one instant from the manor by the act of the party, it is then in gross, and not appendant (p): 6. So where the owner of a manor, to which an advowson was appendant, accepts a fine of the advowson, with a grant and render back of every second turn; now, for such turn the advowson is in gross, but for other turns the appendancy still continues: but [ 9 ] |