Partition. 36. It is laid down by Lord Holt, that joint tenants Effect of a of an advowson may make partition to present by Ep. Sarum v. turns; which will divide the inheritance aliquatenus, Philips, 1 Ld. Raym. and create separate rights. So that the one shall 535. present in the one turn, and the other in the other; which is a sufficient partition. For partition of the profits, is a partition of the thing, where the thing and the profits is the same. It cannot make two advowsons out of one, but it can create distinct rights to present in the several turns. And in this case each of the parties is said to have advocationem me- 1 Inst. 18 a. dietatis ecclesiæ. 37. By the statute 7 Ann. c. 18. § 2. it is enacted, ، That if coparceners, or joint tenants, or tenants in common, be seised of any estate of inheritance in the adyowson of any church or vicarage, or other ecclesiastical promotion, and a partition is or shall be made between them, to present by turns, that there.. upon every one shall be taken and adjudged to be seised of his or her separate part of the advowson, to present in his or her turn; as if there be two, and they make such partition, each shall be said to be seised, the one of the one moiety to present in the first turn, the other of the other moiety to present in the second turn: in like manner, if there be three, four, or more; every one shall be said to be seised of his or her part, and to present in his or her turn." may nomi 38. Where a person mortgages an advowson, the Mortgagors legal right to present is transferred to the mortgagee; nate. yet he cannot present a clerk of his own choice; Amhusrst v. Dowling, whether the advowson be appendant or in gross. 2 Vern, 401. For since the presentation is gratuitous, and the mortgagee cannot account for any benefit from it, a court of equity will compel him to present the nominee of the mortgagor. Gully v. Selby, Robinson, Gardiner v. Mackenzie v. 39. A petition was presented on behalf of a mort3 Atk. 559. gagor, that the mortgagee of a naked advowson might accept of his nominee, and present him upon an avoidance, the incumbent being dead. It was insisted for the mortgagee, that as there was a large arrear of interest, he ought to present, if any advantage accrued from it; and the case in Peer Williams was cited, where the plaintiff's father, being possessed of a 99 years term of the advowson of Eckington, made a mortgage thereof to the defendant, and in the mortgage deed was a covenant, that on every avoidance of the church, the mortgagee should present; in which the Court gave no opinion; but seemed to incline, that the mortgagee had a right to present. 2 P. Wms. 404. Lord Hardwicke was of opinion that the mortgagor ought to nominate; and that it was not presumed any pecuniary advantage was made of a presentation. He observed that these were indifferent securities, but the mortgagee should have considered it before he lent his money; and, instead of bringing a bill of foreclosure, as he had done in this case, should have prayed a sale of the advowson. The next day he mentioned that he was not clear as to this point, and that he had looked into the case of Gardiner v. Griffiths, according to the state of it in the House of Lords, where the decree of Lord King was affirmed, and said that was a mixed case; and that he doubted himself whether a covenant, that the mortgagee should present, as was the case there, was not void; being a stipulation for something more than the principal and interest; and the mortgagee could not account for the presentation. The question was adjourned for farther consideration to the next day of petitions, when the mortgagee not being able to find any precedent in his favour, gave up the point of presenting; and an order was made that the mortgagor should be at liberty to present, and the mortgagee was obliged to accept of the mortgagor's nominee. Arundell v. Ep. Gloucester, Ow. 49. 40. It was formerly understood that where a manor, And Tenants by Statute to which an advowson was appendant, was extended Merchant. on a statute merchant; if the church became void during the cognizee's estate, he might present to it. But it is to be presumed, that if a case of this kind were now to arise, the cognizor of the statute would be allowed to nominate a clerk to the cognizee; by analogy to the case of a mortgage. 41. It has been held, that if a patron of a church And Bankrupts. is a bankrupt, and the church becomes void before Wats. 106. the advowson is sold under the commission, the bankrupt shall present, or nominate, to the church. abled from 42. With respect to the persons who are disabled Who are disfrom presenting to a church, none but natural-born presenting. subjects can excercise this right. And therefore Wats. 106. if an alien purchases an advowson, and the church becomes vacant, the king shall have the presentation. 43. Where a person seised of an advowson is outlawed, and the church becomes vacant while the outlawry is in force, such person is disabled from presenting, and the avoidance is forfeited to the crown. 44. By the statute 1 Will. & Mary, sess. 1. c. 26. every person who shall refuse or neglect to subscribe the declaration mentioned in an act of that parliament, intituled "An Act for the better securing the Government, by disarming Papists;" shall be disabled to make any presentation to a benefice. And the Lunatics. chancellor and scholars of the universities of Oxford and Cambridge shall have such presentation. 45. By the third section of this statute, the trustees of Roman Catholics are disabled from presenting to any benefice. And by the fourth section, such trustees, by presenting without giving notice of the avoidance to the vice-chancellor of the university, to whom the presentation shall belong, within three months after the avoidance, become liable to a penalty of 500 l. 46. By the statute 12 Ann. st. 2. c. 14. § 1. Roman Catholics are disabled from presenting to any benefice; and every such presentation is declared void to all intents and purposes. By the stat. 11 Geo. 2. c. 17. § 5. every grant made of any advowson or right of presentation, collation, nomination, or donation to any benefice, by any person professing the Catholic religion, or by any mortgagee or trustee of such person, shall be null and void; unless it be for valuable consideration to a Protestant purchaser. 47. A lunatic cannot present to a church, nor his committee. For where a lunatic is seised of an advowson, the Lord Chancellor, by virtue of the general authority delegated to him, presents to the living, whatever the value of it be; generally, however, Lect. vol. 1. giving it to one of the family. This right, says Dr. Wooddeson, was first asserted by Lord Talbot; whose example has been followed by all his succes 409. sors. *The presentation to the livings situated south of the Trent, belong to Oxford; and those situated north of that river, belong to Cambridge. 48. The right of presentation is but a limited trust, Examination for the bishops are still in law the judges of the of the Clerk. qualifications of those who are presented to them. Patrons never had the absolute disposal of their churches, upon their own terms; but if they did not present fit persons, within the limited time, the care of appointing a proper person to fill up the vacant benefice, returned to the bishop. 49. The law requires that the person presented be 2 Inst. 631. idonea persona: various exceptions may therefore be made to the character and qualifications of the person presented; 1st, Concerning his person, if he be under age, or a layman; 2dly, Concerning his conversation, if it be irregular or criminal; 3dly, Concerning his ability and sufficiency to discharge his pastoral duty, which belongs to the bishop, as the proper ecclesi astical judge; who may and ought to refuse the person presented, if he be not idonea persona. 356. 50. It is a good cause of refusal of a clerk, that he 2 Roll. Ab. is simoniacus in the same presentment; that is, has made a corrupt contract to be presented; or that he is simoniacus in another benefice. Case, 51. It was resolved by the Court of King's Bench Specot's in 32 Eliz. that all such as are sufficient causes to 5 Rep. 57. deprive an incumbent, are sufficient to refuse a pre sentee. 52. When the bishop refuses without good cause, Wats. 230. or unduly delays to admit and institute a clerk to the church, to which he is presented, the clerk may have his remedy against the bishop in the ecclesiastical court. 53. If the patron finds himself aggrieved by the 2 Inst. 631. ordinary's refusal of his clerk, he may have his remedy by writ of quare impedit, in the temporal court; and in such case the ordinary must show the cause of his |