« PreviousContinue »
Watf. 109. 2 Inft. 361.
2 Burn's Ec. Law 327.
paying his ecclefiaftical dues, and frustrate the pious
$ 16. As the computation of time concerns the church, it is therefore made according to the rules of the canon law, that is, by the calendar for one half year, not counting twenty-eight days to a month; and the day on which the church becomes void, is not to be taken in the account.
§ 17. As to the time from which the fix months are to commence, the rule of the canon law in all cafes was, that the fix months fhould be reckoned, not from the time of the voidance, but from the time when the patron had notice of the voidance. As if the incumbent dies beyond fea, the fix months fhall not be counted from the time of his death, but from the time of the patron's knowledge thereof.
§ 18. Where a clerk is refused for want of learning, or on account of his morals, the patron ought to have notice, that he may present another in due time. Yet if he neglects to do so, the lapse shall incur, from the death or ceffion of the former incumbent, and not from the time of notice.
S 19. It has also been held, that although no lapfe shall incur, if no notice be given, yet if in such case a ftranger prefents, and his clerk is inftituted, and inducted; and the patron gives no difturbance within fix months, he has no remedy for that turn, because
induction is a notorious act, of which he is bound to take notice.
§ 20. If the clerk be not refused, but the bifhop only Id. 329. delays the examination of him, whereby the fix months pafs, no lapfe fhall incur because the church remains void by the bishop's own fault, and he is thereby a disturber.
§ 21. After a church has lapfed to the immediate Watf. 115. ordinary, if the patron presents before the ordinary has filled the church, the ordinary ought to receive his clerk. For lapfe to the ordinary is only an opportunity of filling a truft, viz. of appointing a proper perfon to fupply the living, in case of the patron's neglect, which being performed by the patron himself, the ordinary can then derive no advantage from it.
§ 22. All those who are fole feised in fee, in tail, or for life; or poffeffed for a term of years of a manor, to which an advowson is appendant; or of an advowfon in grofs, may prefent to the church whenever it be
§23. Where a person is feifed or intitled to an advowfon in right of his wife, he must present in his own name and that of his wife, and not in his own name only, in right of his wife.
Who may present.
§ 24. Where a leffee for life of a manor to which an advowson is appendant aliens the manor in fee, and 351. after the church becomes void, the leffor may present
before entry. But if tenant for life of an advowfon in gross levies a fine come ceo, &c. and the church becomes void, the leffee fhall prefent, because the reverfioner did not make his election to take advantage of the forfeiture, and the prefent prefentment being a chattel interest vested in the leffee, it could not be divefted by the presentment of the perfon in reverfion.
$ 25. It has been stated that a man may be tenant by the curtefy and a woman tenant in dower of an advowson; in which cafe they may of courfe prefent to the church.
§ 26. Where a perfon is feifed in fee of an advow. fon and the church becomes void in his lifetime; if he dies before he has prefented, the right of prefentation devolves to his executors, because it is confidered as a chattel real.
S 27. But if the incumbent of a church be also feifed in fee of the advowfon of the fame church and die, the right to prefent will devolve on his heir, and not his executor. For the avoidance and descent to the heir happening at the fame inftant, the title of the heir fhall be preferred, as the most ancient and worthy.
§ 28. Where a perfon has a grant of the next prefentation only to a church, fuch right is confidered as a chattel real, which if not difpofed of, will veft in his
$ 29. An
1 Inft. 186 b.
§ 29. An advowfon may be held in joint-tenancy, Joint-tenants. in which cafe all the joint-tenants muft concur in the prefentation, and where an advowfon is vested in trustees under the ufual words of limitation, they are joint-tenants and therefore upon any avoidance must all join in presenting a clerk.
7 Bro. Parl.
§ 30. Lord Coke fays that if there be two joint- 1 Inf. 186 b. tenants of an advowfon, and one prefents without the other, this is no ufurpation upon his companion: But if the joint-tenant who prefented dies, it fhall ferve for a title in a quare impedit brought by the furvivor. And if one joint-tenant presents, or if they prefent feverally, the ordinary may either admit, or refufe to admit fuch. a prefentee, unless they joined in presentation. And after the fix months, he may in that case present by lapfe.
1 Inft. 166 b. 2 Inft. 365.
$ 31. By the common law, where an advowfon descends to coparceners, and they cannot agree to present, the eldest fifter fhall have the first turn, the fecond shall have the next turn, and so of the reft, according Plowd. 333to their feniority. And this privilege extends not only to their heirs, but to the several affignees of every coparcener; whether they acquire the eftate by conveyance, or by act in law, as tenant by the curtesy; who shall have the fame privilege by presenting in turn, as the fifters had.
§ 32. The eftate of an advowfon defcended to two daughters as parceners. The church became vacant twice in their time, and both joined in prefentation.
1 Vef. 340.
Willes Rep. 659.
The eldest married fettled her eftate in the common
The question was whether the alternate turn of presentation among coparceners continued to the grantee, that is, whether the perfons to whom it was conveyed, were to be confidered as enjoying the fame privileges, of presenting in turn, as the fifters and parceners, if they had their own eftate. Mr. Baron Clark was clearly of opinion upon the authority of the paffage in 2 Inft. 365. above stated that the husband of the eldest fifter was entitled to the presentation.
The doctrine here laid down has been fully recognized by the Court of Common Pleas in the cafe of Barker v. Lomax, as reported by Lord Chief Justice Willes.
S 33. Although coparceners make compofition to present by turns, this being no more than the law doth appoint, expreffio eorum que tacite infunt nihil operatur ; therefore they remain coparceners of the advowfon, the inheritance of which is not divided.
§ 34. By the ftatute Westminster 2. c. 5. it is provided, that where an advowfon defcends to coparceners, though one presents twice, and thereby ufurps upon his co-heir, yet he that was negligent fhall not be barred, but another time fhall have his turn to prefent when it falleth.
§ 35. Tenants