equally fufficient to pafs them, except in the inftance of water; by a grant of which, nothing paffes but a right of fishing: but the capital diftinction is this; that by the name of a caftle (1), meffuage, toft, croft, or the like, nothing else will país, except what falls with the utmost propriety under the term made use of; but by the name of land, which is nomen generaliffimum, every thing terrestrial will pafs". (1) By the name of a caftle, one or more manors may be conveyed; and e converso by the name of a manor, a caftle may pass. 1 left. 5. 2 Luft. 31. C 3 CHAPTER THE THIRD. OF INCORPOREAL HEREDITAMENTS. N 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 confist in lands, houses, jewels, or the like; but fomething collateral thereto, as a rent iffuing out of those lands or houses, or an office relating to those jewels. In fhort, as the logicians fpeak, corporeal hereditaments are the fubftance, which may be always feen, always handled: incorporeal hereditaments are but a fort of accidents, which inhere in and are supported by that fubftance; 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 invisible, 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 possession. INCORPOREAL hereditaments are principally of ten forts; advowsons, tithes, commons, ways, offices, dignities, franchifes, corodies or penfions, annuities, and rents. I. ADVOWSON is the right of presentation to a church, or ecclefiaftical benefice. Advowfon, 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 first built churches on their own demefnes, and appointed the tithes of thofe manors to be paid to the officiating minifters, 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 instance of an advowson will completely illustrate 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 some other man a title to fuch bodily poffeffion. The advowson is the object of neither the fight, nor the touch; and yet it perpetually exifts 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. • 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. t. 12. c. 2. had had of it. If the patron takes corporal poffeffion of the' church, the church-yard, the glebe or the like, he intrudeş on another man's property; for to thefe the parfon has an exclusive 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 obferved, that " advowfons, merely as fuch (. e. in grofs), could never in any age "of the English law, pafs 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 ftatute 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 justly observes, before the ftatute, an advowfon 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 fpecies of intereft 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 ufe and object, the reward of learning and virtue. Hence the mortgagor fhall prefent when the church is vacant, though the advowfon 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 reason, it should seem, if a church became vacant before the affignees had fold an advowfon, part of the estate of a bankrupt, the bankrupt fhall present 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 advowfon, can be fold whilst 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 presentation 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 so vested, 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 advowions in grofs. Lords of manors being originally the only founders, and of courfe 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 presentation 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 advowfon. An advowson 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 presentation 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; subject to his visitation only, and not to that of the ordinary; and vested abfolutely |