CHAPTER THE THIRD. OF INCORPOREAL HEREDITAMENTS. AN incorporeal hereditament is a right iffuing out of a thing corporate (whether real or perfonal) or concerning, or annexed to, or exercifible within, the fame. It is not the thing corporate itself, which may confift in lands, houses, jewels, or the like; but fomething collateral thereto, as a rent ifsuing out of those lands or houses, or an office relating to thofe jewels. In fhort, as the logicians speak, corporeal hereditaments are the substance, which may be always feen, always handled: incorporeal hereditaments are but a fort of accidents, which inhere in and are supported by that substance; and may belong, or not belong to it, without any visible alteration therein. Their existence is merely in idea and abstracted contemplation; though their effects and profits may be frequently objects of our bodily fenfes. And indeed, if we would fix a clear notion of an incorporeal hereditament, we must be careful not to confound together the profits produced, and the thing, or hereditament, which produces them. An annuity, for inftance, is an incorporeal hereditament for though the money, which is the fruit or product of this annuity, is doubtless of a corporeal nature, yet the annuity itself, which produces that money, is a thing invifible, has only a mental existence, and cannot be delivered over from hand to hand. So tithes, if we confider the pro a Co. Litt. 19, 20. duce duce of them, as the tenth fheaf or tenth lamb, feem to be completely corporeal; yet they are indeed incorporeal hereditaments: for they, being merely a contingent fpringing right, collateral to or iffuing out of lands, can never be the object of fenfe: that cafual fhare of the annual increase is not, till fevered, capable of being fhewn to the eye, nor of being delivered into bodily poffeflion. INCORPOREAL hereditaments are principally of ten forts; advowsons, tithes, commons, ways, offices, dignities, franchises, corodies or penfions, annuities, and rents. I. ADVOWSON is the right of presentation to a church, or ecclefiaftical benefice. Advowson, advocatio, fignifies in clientelam recipere, the taking into protection; and therefore is fynonymous with patronage, patronatus: and he who has the right of advowfon is called the patron of the church. For, when lords of manors firft built churches on their own demefnes, and appointed the tithes of those manors to be paid to the officiating ministers, which before were given to the clergy in common, (from whence, as was formerly mentioned, arose the divifion of parishes,) the lord, who thus built a church, and endowed it with glebe or land, had of common right a power annexed of nominating fuch minifter as he pleafed (provided he were canonically qualified) to officiate in that church, of which he was the founder, endower, maintainer, or, in one word, the patron. THIS inftance of an advowfon will completely illuftrate the nature of an incorporeal hereditament. It is not itself the bodily poffeffion of the church and it's appendages; but it is a right to give fome other man a title to fuch bodily poffeffion. The advowfon is the object of neither the fight, nor the touch; and yet it perpetually exists in the mind's eye, and in contemplation of law. It cannot be delivered from man to man by any visible bodily transfer, nor can corporal poffeffion be b Vol. I. pag. 112. e This original of the jus patronatus, by building and endowing the church, C 4 appears alfo to have been allowed in the Roman empire. Nov. 26. f. 12. C. 2. Nov. 118. c23. had had of it. If the patron takes corporal poffeffion of the church, the church-yard, the glebe or the like, he intrudes on another man's property; for to thefe the parfon has an exclufive right. The patronage can therefore be only conveyed by operation of law, by verbal grant (1), either oral or (1) The prefent learned Vinerian profeffor, Mr. Wooddefon, has taken notice of this inaccuracy, and has observed, that “ ad"vowsons, merely as fuch (i. e. in grofs), could never in any age "of the English law, pass by oral grant without deed." (2 Vol. 64.) Lord Coke fays exprefsly, that "grant is properly of things "incorporeal, which cannot pafs without deed." (1 Inft. 9.) But before the statute of frauds, 29 Car. II. c. 3. any freehold interest in corporeal hereditaments, might have paffed by a verbal feoffment, accompanied with livery of feizin. (Litt. S. 59.) And by fuch a verbal grant of a manor, Mr. Wooddefon juftly obferves, before the statute, an advowson appendant to it might have been conveyed. (2 Vol. 64.) But he who has an advowson, or a right of patronage in fee, may by deed transfer every species of interest out of it, viz. in fee, in tail, for life, for years, or may grant one or more presentations. Although this is a right of great value, yet the poffeffion of it never can yield any lucrative benefit to the owner, as the law has provided that the exercife of this right must be perfectly gratuitous; yet it may be a provifion for relations, a pledge of friendship, or what is it's true use and object, the reward of learning and virtue. Hence the mortgagor fhall prefent when the church is vacant, though the advowson alone is mortgaged in fee, for the mortgagee could derive no advantage from the presentation in reduction of his debt. (3 Atk. 559.) And for the fame reafon, it fhould feem, if a church became vacant before the affignees had fold an advowfon, part of the estate of a bankrupt, the bankrupt fhall prefent upon that vacancy, as the law did not intend to deprive him of any right, which could afford no fubftantial benefit to his creditors. And it is now fully fettled, that neither the next prefentation nor the advowson, can be fold whilft the church is vacant. 3 Burr. 1510. An advowfon is affets in the hands of the heir. 3 Bro. P. C. 556. But if during the avoidance of a church the patron die, the right to that prefentation paffes to his executor or perfonal reprefentative, unless it is a donative benefice, and in that cafe the right of donation defcends to the heir. 2 Wils. 150. 5 written, written, which is a kind of invifible mental transfer: and being fo vefted, it lies dormant and unnoticed, till occafion calls it forth when it produces a vifible, corporeal fruit, by entitling fome clerk, whom the patron fhall please to nominate, to enter and receive bodily poffeffion of the lands and tenements of the church. ADVOWSONS are either advowfons appendant, or advowsons in grofs. Lords of manors being originally the only founders, and of course the only patrons, of churches, the right of patronage or prefentation, fo long as it continues annexed to the poffeffion of the manor, as fome have done from the foundation of the church to this day, is called an advowfon appendant and it will pafs, or be conveyed, together with the manor, as incident and appendant thereto, by a grant of the manor only, without adding any other words. But where the property of the advowfon has been once feparated from the property of the manor by legal conveyance, it is called an advowfon in grofs, or at large, and never can be appendant any more; but is for the future annexed to the person of it's owner, and not to his manor or lands. ADVOWSONS are alfo either prefentative, collative, or donative. An advowfon prefentative is where the patron hath a right of prefentation to the bishop or ordinary, and moreover to demand of him to inftitute his clerk, if he finds him canonically qualified: and this is the most usual advowson. An advowfon collative is where the bishop and patron are one and the fame perfon: in which cafe the bishop cannot prefent to himself; but he does, by the one act of collation, or conferring the benefice, the whole that is done in common cafes, [23] by both prefentation and inftitution. An advowfon donative is when the king, or any subject by his licence, doth found a church or chapel, and ordains that it fhall be merely in the gift or difpofal of the patron; fubject to his vifitation only, and not to that of the ordinary; and vefted abfolutely in the clerk by the patron's deed of donation, without prefentation, inftitution, or induction' (2). This is faid to have been antiently the only way of conferring ecclefiaftical benefices in England; the method of inftitution by the bishop not being established more early than the time of archbishop Becket in the reign of Henry II. And therefore though pope Alexander III,' in a letter to Becket, feverely inveighs against the prava confuetudo, as he calls it, of inveftiture conferred by the patron only, this however fhews what was then the common ufage. Others contend, that the claim of the bishops to inftitution is as old as the first planting of christianity in this ifland; and in proof of it they allege a letter from the English nobility to the pope in the reign of Henry the third, recorded by Matthew Paris", which speaks of presentation to the bishop as a thing immemorial. The truth feems to be, that, where the benefice was to be conferred on a mere layman, he was first prefented to the bishop, in order to receive ordination, who was at liberty to examine and refufe him: but where the clerk was already in orders, the living was ufually vested in him by the fole donation of the patron; till about the middle of the twelfth century, when the pope and his bishops endeavoured to introduce a kind of feodal dominion over ecclefiaftical benefices, and, in confequence of that, began to claim and exercife the right of inftitution univerfally, as a fpecies of spiritual inveftiture. i Co. Lit. 344. 1 Decretal. l. 3. t. 7. c. 3. (2) Two peculiar properties of donatives may be mentioned here; one is, that the prefentation does not devolve to the king, as in other livings, when the incumbent is made a bishop (Ca. Parl. 184.) the other is taken notice of by Mr. Wooddefon, that donatives are within the statute of pluralities, if a donative is the first living; but if a donative is the fecond benefice taken without a dispensation, the first would not be void, for the words of the ftatute are, instituted and inducted to any other, which are not applicable to donatives. 1 Vol. 330. And therefore it feems if donatives are taken last, they may be held with any other preferment. HOWEVER |