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$ 35. Tenants in common of an advowson must Tenants in
Common. also join in presenting to the church, and, therefore, if they present severally, the ordinary may either admit or refuse the clerk; and after six months he may present by lapse.
S 36. If one tenant in common of an advowson 2 Roll. Ab. presents alone, this will not put the other out of pofsef- 372. fion; for at the next avoidance, they may join in presentation.
$ 37. It was held by Lord Holt, that joint-tenants of Efe& of Par
tition. an advowson might make partition to present by turns, which would divide the inheritance aliquatenus, Epis. Salif:.
buryv.Philips, and create separate rights, so that the one shall present i ld. Raym. in the one turn, and the other in the other, which is a 535 sufficient partition. For partition of the profits is a partition of the thing, where the thing and the profits are the same. It could not make two advowsons out of one, but it could create distinct rights to present in the several turns.
S 38. By the statute 7 Ann. C. 18. it is enacted, « That if coparceners or joint-tenants, or tenants in
common, be seised of any estate of inheritance in “ the advowson of any church or vicarage or other " ecclesiastical promotion, and a partition is or shall “ be made between them to present by turns, that “ thereupon 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 66 the first turn, the other of the other moiety to pre6 sent 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 66 turn."
A Mortgagor S 39. Though a person has mortgaged an advowson
by which the legal right to present becomes vested in
the mortgagee, yet such mortgagee cannot present; Gally v. Selby, whether the advowson be appendant or in gross : for, Com. R. 343. fince the presentation is gratuitous, and the mortgagee
cannot account for any benefit from it, a court of equity will compel the mortgagee to present the nominee of the mortgagor.
S 40. A petition was presented on behalf of a mort. 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 cited the case of Gar. dener v. Griffith, 2 P. Wms. 404., where the plaintiff's father being possessed of a 99 years term of the advowson of Eckington, made a mortgage thereof to the de. fendant, and in the mortgage deed was a covenant, that on every avoidance of the church, the mortgagee fhould present. The court gave no opinion, but feemed to incline that the mortgagee had a right to present.
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. His Lordship 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 fore. closure, as he had done in this case, should have prayed a sale of the advowfon.
The next day, his Lordship mentioned, that he was not clear as to this point, and that he had looked into the case of Gardiner v. Griffith, according to the state of it in the House of Lords, where the decree of Lord Chancellor 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 ftipulation for something more than the principal and interest, and the mortgagee could not account for the presentation.
The question was adjourned for further 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.
S41. It appears to have been formerly held, that Arundel v. where a manor to which an advowson was appendant, ceter.
Epis. Glou. was extended on a statute merchant, if the church be- Owen 49. came void during the cognizee's estate, the cognizee
might present. But it is to be presumed, that if a case
And also a
S 42. It has been held upon the same principle, that if a patron is a bankrupt, and the church becomes void before the commissioners or assignees have sold the advowson, the bankrupt shall present.
An Infant may present. 3 Inft. 156. 2 Inft. 89 a.
S 43. Lord Coke says, that a guardian in socage of an infant seised of a manor, to which an advowson is appendant, shall not present to the church, because he can take nothing for the presentation for which he may account to the heir; and therefore the heir, in that case, shall present, of what age soever.
3 Atk. 710.
S 44. This doctrine is now fully established ; and Lord Hardwicke has observed, that the strong ground the law goes on, is, that there can be no inconvenience, because the bishop is to judge of the qualifications of the clerk presented, and in the following case it was determined that an infant, who was not a year old, might nominate or present to a living.
Arthington v. § 45. Cyril Arthington conveyed an advowson to
lar person, as should be capable of taking the same,
the grantor and his assigns, that the trustees should present a person of their own choosing. The grantor died leaving his son and heir an infant of fix months old. The living became vacant. The guardian of the infant took him in his arms, and guided his pen in making his mark, and made him seal a writing, whereby one Hitch was nominated and appointed to the trustees, in order to be presented by them to the living. The trustees supposing the plaintiff as an infant, unable to make such an appointment, refused to present Mr. Hitch, and presented another person. Upon which the infant brought his bill against the trustees to have them execute their trust, in presenting his nominee. It was argued for the defendants that the presentation of clerks to bishops for admission to churches was an act that required judgment and discretion, which an infant was not master of; and though the law suffered them to present to their own livings, yet it was of necessity, because there was no body else to do it, and if they could not, then a lapse must incur : For a presentation to a living being a thing of no value, and therefore not to be accounted for, a guardian could not have it, whereas in the present case if the grantor or his heirs neglected or were incapable of presenting, the trustees were expressly authorized to present, whose act would be considered as the act of the infant, so that no injury would be done to any body. And though in cases of evident necessity, equity might square itself by law, yet where no such necessity appeared, reason and common sense ought to prevail; from whence it was inferred that the nomination being an act require