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TITLE XXI.

ADVOWSON.

CHAP. II.

Of Presentation, Institution, and Induction. $ 1. Presentation.

§ 37. Effee of Partition. 5. Examination of the Clerk. 39. Mortgagor may nominate. 10. Admision.

42. And also a Bankrupt. 11. Institution.

43. An Infant may present. 13. Induction.

47. But not a Lunatic. 15. Of Lapse.

48. Who are difebled from 22. W bo may present.

presenting 29. Joint-tenants.

51. Of Simony. 31. Coparceners.

75. Of Bends of Refignation. 35. Tenants in Common.

Section 1.
HE essence of an advowfon consisting in the right Presentation.

of presentation, it will be necessary to examine into the nature of this act, the time within which it must be done, and the persons who are capable of performing it.

Presentation is an offering of a clerk, by the patron i Inf. 120 a. or proprietor of an advowson to the ordinary; and this might formerly have been done, either by word, or by writing, but since the statute of frauds it is necessary that all presentations be in writing.

§ 2. A presentation in writing is a kind of letter, Burn's Eccl. not a deed, from the patron to the bishop of the

diocese,

Law, 134•

diocese, in which the living is situated, requesting the
bishop to admit the person presented to the church.

Rogers v.
Holled,
2 Black. Rep.
40.

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S 3. A presentation 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
appears

however to be now settled that a lay patron
may revoke his presentation at any time, and Sir
William Blackstone has observed that a presentation
was certainly revocable by the principles of the
common law, because it vested 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 re-
cover it when invaded. But there is no species of
common law action open or competent to a clerk, to
recover a presentation when obstructed, but to the
patron only.

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§ 4. In the case in which this doctrine was laid down it was determined by the House of Lords that the instrument by which a presentation was revoked, was not in law a good revocation.

Examination S 5. The right of presentation is but a limited trust;
of the Clerk. and the bishops are still, in law, the judges of the

qualifications of those who are presented to them.
For 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 be-
nefice returned to the bishop.

S 6. The

S 6. The law requires that the person presented be 2. Iuft. 631. Idonea Persona, various exceptions may therefore be made to the character and qualifications of the person presented, ift. Concerning his person if he be under age or a lay man. 2d. Concerning his conversation if it be irregular or criminal, and 3d. Concerning his inability to discharge his pastoral duty. And the examination of his ability and sufficiency belongs to the bishop, as the proper ecclesiastical judge; who may and ought to refuse the person presented, if he be not Idonea Persona.

57. When the bishop refuses without good cause, Idem. 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.

§ 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 refusal, specially and directly, not only that he is a schismatic or a heretic, for instance, but also the particular schismatical or heretical opinions with which he is charged, must be set forth : For the examination of the bishop doth not finally conclude the plaintiff, and without fhewing specially, the court cannot enquire and resolve whether the refusal be ju t or not, and if the cause of refusal be spiritual, the court shall write to the metropolitan to certify thereof, or if the cause be temporal, and sufficient in law, which the temporal VOL. III.

C

Court

Court shall decide; the same may be traversed, and an
issue thereupon joined and tried by a jury.

Episc. Exeter S 9. It has been determined by the House of Lords
v.Hele, Show,
Parl. Ca. 88. that it was a good plea on the part of a bishop, in a

quare impedit, that the presentee was a person not
sufficient or capable in learning to have the said church;
and that the bishop need not set forth, in what kinds
of learning, or to what degree, he was defective.

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Admillion. S 10. Admission is nothing else but the ordinary's
Int. 344 4. declaration that he approves of the presentee, as a fit

person to serve the church, to which he is presented.

Watf. 155.

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S 11. Institution is the commitment to the clerk of the cure of souls. The form and manner of it is thus; the clerk kneels before the ordinary whilst he reads the words of the institution out of a written inftru. ment drawn for this purpose, with the episcopal seal appendant, which he holds in his hand during the ceremony.

Watl. 156.

$ 12. The act of presentation only gives the clerk a right ad Rem. But institution gives him a right in Re, and therefore the clerk, when instituted, may enter into the glebe, and take the tithes, though he cannot yet sue for them.

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§ 13. After institution given, the ordinary issues a mandate for induction, directed to the person who hath power to induct; of common right, this person is

the

1

the archdeacon, but by prescription or composition, others as well as archdeacons

may induet.

S 14. The induction is to be made according to the 1 Burn's Ee.

Law 156. tenor and language of the mandate, by vesting the incumbent with full poffeffion of all the profits belonging to the church. Accordingly the person who inducts usually 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 ir:duct you into the real actual “ and corporal possession 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 person inducted into the church; who uliially tolls a bell to make his induction public, and known to the parishioners; which being done, the clergyman who has inducted the clerk, indorses a certificate of his induction on the mandate, which is witnessed by the persons present.

§ 15. Presentation must be made within six calendar of Laple. months after the death of the last incumbent; otherwise the right of presentation accrues to the ordinary; and this species of forfeiture is called a lapse: It being for the interest of religion and the good of the public, that the church should be provided with an officiating minister. The law has therefore given this right of lapse in order to quicken the patron, who might otherwise by suffering the church to become vacant, avoid C 2

paying

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