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937. Effect of Partition.
39. Mortgagor may nominate.
51. Of Simony.
75. Of Bonds of Refignation.
HE effence of an advowfon confifting in the right Presentation. of presentation, it will be neceffary to examine
into the nature of this act, the time within which it
must be done, and the perfons who are capable of performing it.
Presentation is an offering of a clerk, by the patron 1 Inft. 120 a.
or proprietor of an advowfon to the ordinary; and this might formerly have been done, either by word,
or by writing, but fince the statute of frauds it is neceffary that all presentations be in writing.
§ 2. A presentation in writing is a kind of letter, 1 Burn's Eccl. not a deed, from the patron to the bishop of the
✰ Bro. Parl. Ca. 117.
Examination of the Clerk.
diocefe, in which the living is fituated, requesting the bishop to admit the perfon prefented to the church.
§ 3. A prefentation though duly made in all respects may be revoked or varied. This was always held with respect to the king, but was doubted as to lay patrons. It however to be now settled that a lay patron appears may revoke his presentation at any time, and Sir William Blackstone has obferved that a prefentation was certainly revocable by the principles of the common law, because it vefted no right in any one, not even in the clerk presented; for if the clerk had a right, the law would give him a remedy to recover it when invaded. But there is no fpecies of common law action open or competent to a clerk, to recover a prefentation when obftructed, but to the patron only.
§ 4. In the cafe in which this doctrine was laid down it was determined by the Houfe of Lords that the inftrument by which a prefentation was revoked, was not in law a good revocation.
§ 5. The right of presentation is but a limited truft, and the bishops are ftill, in law, the judges of the qualifications of thofe who are prefented to them. For patrons never had the abfolute difpofal of their churches upon their own terms, but if they did not prefent fit perfons within the limited time, the care of appointing a proper perfon to fill up the vacant benefice returned to the bishop.
§ 6. The
§ 6. The law requires that the perfon presented be 2. Inft. 631. Idonea Perfona, various exceptions may therefore be made to the character and qualifications of the perfon prefented, ift. Concerning his perfon if he be under age or a lay man. 2d. Concerning his converfation if it be irregular or criminal, and 3d. Concerning his inability to discharge his paftoral duty. And the examination of his ability and sufficiency belongs to the bishop, as the proper ecclefiaftical judge; who may and ought to refuse the perfon presented, if he be not Idonea Perfona.
57. When the bishop refufes without good caufe, Idem. or unduly delays to admit and inftitute a clerk to the church, to which he is prefented, the clerk may have his remedy against the bishop, in the Ecclefiaftical Court.
§ 8. If the patron finds himself aggrieved by the Idem. 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 shew the cause of his refufal, specially and directly, not only that he is a fchifmatic or a heretic, for instance, but also the particular schifmatical or heretical opinions with which he is charged, must be fet forth: For the examination of the bishop doth not finally conclude the plaintiff, and without fhewing specially, the court cannot enquire and refolve whether the refufal be just or not, and if the cause of refusal be spiritual, the court fhall write to the metropolitan to certify thereof, or if the caufe be temporal, and fufficient in law, which the temporal VOL. III, Court
Epifc. Exeter v. Hele, Show. Parl. Ca. 88.
Court fhall decide; the fame may be traverfed, and an
§ 9. It has been determined by the House of Lords that it was a good plea on the part of a bishop, in a quare impedit, that the presentee was a perfon not fufficient or capable in learning to have the faid church; and that the bishop need not set forth, in what kinds of learning, or to what degree, he was defective.
§ 10. Admiffion is nothing else but the ordinary's Inft. 344. declaration that he approves of the prefentee, as a fit Watf. 155. person to serve the church, to which he is presented.
1 Inft. 344 a. Watf. 155.
§ 11. Inftitution is the commitment to the clerk of the cure of fouls. The form and manner of it is thus; the clerk kneels before the ordinary whilst he reads the words of the inftitution out of a written inftrument drawn for this purpose, with the episcopal feal appendant, which he holds in his hand during the ceremony.
§ 12. The act of presentation only gives the clerk a right ad Rem. But inftitution gives him a right in Re, and therefore the clerk, when inftituted, may enter into the glebe, and take the tithes, though he cannot yet fue for them.
§ 13. After inftitution given, the ordinary iffues a mandate for induction, directed to the person who hath power to induct; of common right, this person is
the archdeacon, but by prefcription or compofition, others as well as archdeacons may induct.
§ 14. The induction is to be made according to the tenor and language of the mandate, by vesting the incumbent with full poffeffion of all the profits belonging to the church. Accordingly the perfon who inducts ufually takes the clerk by the hand, and lays it upon the ring of the church door, or if the church is in ruins, then upon any part of the wall of the church or church yard, and faith to this effect-" By virtue "of this mandate I do induct you into the real actual "and corporal poffeffion of the church of C. with all "the rights profits and appurtenances thereunto be"longing." After which the inductor opens the door and puts the perfon inducted into the church; who ufually tolls a bell to make his induction public, and known to the parishioners; which being done, the clergyman who has inducted the clerk, indorfes a certificate of his induction on the mandate, which is witneffed by the perfons prefent.
Burn's Ec. Law 156.
§ 15. Prefentation must be made within fix calendar Of Lapfe. months after the death of the laft incumbent; otherwife the right of prefentation accrues to the ordinary; and this fpecies of forfeiture is called a lapfe: It being for the intereft of religion and the good of the public, that the church fhould be provided with an officiating minifter. The law has therefore given this right of lapfe in order to quicken the patron, who might otherwife by fuffering the church to become vacant, avoid paying