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equally sufficient to pass them, except in the instance of water; by a grant of which, nothing passes but a right of fishing? : but the capital distinction is this; that by the name of a castle (1), messuage, toft, croft, or the like, nothing else will pass, except what falls with the utmost propriety under the term made use of; but by the name of land, which is nomen generalisi mum, every thing terrestrial will pass”. & Co. Litt. 4.
h Ibid. 4, 5, 6.
(1) By the name of a castle, one or more manors may be conveyed; and e converso by the name of a manor, a castle may pars. : Inf. 5. 2 Inft. 3.1.
CHAPTER THÈ THIRD.
OF INCORPOREAL HEREDITAMENTS.
A N incorporeal hereditament is a right issuing out of a
thing corporate (whether real or personal) or concerning, or annexed to, or exercisible within, the same ?. It is not the thing corporate itself, which may consist in lands, houses, jewels, or the like; but something collateral thereto, as a rent issuing out of those lands or houses, or an office relating to those jewels. In short, as the logicians speak, cor. poreal hereditaments are the substance, which may be always seen, always handled: incorporeal hereditaments are but a sort 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 abatracted contemplation; though their effects and profits may be frequently objects of our bodily senses. 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 instance, 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 invisible, has only a mental existence, and cannot be delivered over from hand to hand. So tithes, if we consider the produce of them, as the tenth Theaf or tenth lamb, seem to be completely corporeal; yet they are indeed incorporeal hereditaments: for they, being merely a contingent springing right, collateral to or issuing out of lands, can never be the object of sense : that casual share of the annual increase is not, till severed, capable of being shewn to the eye, nor of being delivered into bodily possession.
a Co. Litt. 19, 20.
INCORPOREAL hereditaments are principally of ten forts; advowsons, tithes, commons, ways, offices, dignities, franchises, corodies or pensions, annuities, and rents.
I. Advowson is the right of presentation to a church, or ecclesiastical benefice. Advowson, advocatio, signifies in clientelam recipere, the taking into protection; and therefore is synonymous with patronage, patronatus : and he who has the right of advowson is called the patron of the church.' For, when lords of manors first built churches on their own demesnes, 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 division 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 such minister as he pleased (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 instance of an advowson will completely illustrate the nature of an incorporeal hereditament. It is not itself the bodily possession of the church and it's appendages; but it is a right to give some other man a title to such bodily possession. The advowson is the object of neither the sight, 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 possession be • Vol. I. pag. 112.
appears also to have been allowed in the • This original of the jus patronatus, Roman empire. Nov. 26. 1. 12. 6. 2. by building and endowing the church, Nov. 118. 6. 23. i C4
had had of it. If the patron takes corporal possession of the church, the church-yard, the glebe or the like, he intrudes on another man's property ; for to these the parson has air exclusive right. The patronage can therefore be only con: veyed by operation of law, by verbal grant (1), either oral or
(1) The present learned Vinerian professor, Mr. Wooddefon, has taken notice of this inaccuracy, and bas observed, that “ad. “vowsons, merely as such (i. e. in gross), could never in any age “ of the English law, pass by oral grant without deed.” (? Vol. 64.) Lord Coke says expressly, that “grant is properly of things . “ incorporeal, which cannot pass without deed.” (1 Inft.9.) But before the statute of frauds, 29 Car. II. c. 3. any freehold interest in corporeal hereditaments, might have passed by a verbal feoffment, accompanied with livery of seizin. (Litt. S. 59.) And by such a verbal grant of a manor, Mr. Wooddeson justly observes, 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 fail, for life, for years, or may grant one or more presentations.
Although this is a right of great value, yet the possesion of iç never can yield any lucrative benefit to the owner, as the law has provided that the exercise of this right must be perfectly gratuitous; yet it may be a provision for relations, a pledge of friendAhip, or what is it's true use and object, the reward of learning and virtue. Hence the mortgagor shall present when the church is yacant, 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 same reason, it should seem, if a church became vacant before the assignees had sold an advowson, part of the estate of a bankrupt, the bankrupt shall present upon that vacancy, as the law did not intend to de. prive him of any right, which could afford no substantial benefit to his creditors. And it is now fully settled, that neither the next presentation nor the advowson, can be sold whilst the church is va. cant. 3 Burr. 1510. An advowlon is assets 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 presentation passes to his executor or personal repre. sentative, unless it is a donative benefice, and in that case the right of donation descends to the heir. 2 Wils. 150.
written, which is a kind of invisible mental transfer: and being so vested, it lies dormant and unnoticed, till occasion calls it forth : when it produces a visible, corporeal fruit, by entitling some clerk, whom the patron shall please to nominate, to enter and receive bodily possellion of the lands and tenements of the church.
Advowsons are either advowsons 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 presentation, so long as it continues annexed to the poffession of the manor, as some have done from the foundation of the church to this day, is called an advowson appendante: and it will pass, or be conveyed, together with the manor, as incident and appendant thereto, by a grant of the manor only, without adding any other words f. But where the property of the advowson has been once separated from the property of the manor by legal conveyance, it is called an advowfon in gross, 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 8,
Advowsons are also either presentative, collative, or donative h. An advowson presentative is where the patron hath a right of presentation to the bilhop or ordinary, and moreover to demand of him to institute his clerk, if he finds him canonically qualified; and this is the most usual advowson. An advowson collative is where the bishop and patron are one and the same person: in which case the bishop cannot present to himself; but he does, by the one act of collation, or çonferring the benefice, the whole that is done in common cases, [ 23 ] by both presentation and institution. An advowson donative is when the king, or any subject by his licence, doth found a church or chapel, and ordains that it shall be merely in the gift or disposal of the patron ; subject to his visitation only, and not to that of the ordinary; and vested absolutely d Co. Litt. 119.
& Ibid. 120. e Ibid. 121.
1 Ibid. f Ibid. 397