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Second pre

sentment granted.

One joint

tenant releases.

Where ad

vowson ap

pendant and in gross are united.

Again, where a person having an advowson appendant grants every second presentment to a stranger, it will be in gross for the turn of the grantee, and appendant for the turn of the grantor. (1) In like manner if two joint tenants are seized of a manor to which an advowson is appendant, and the one releases all his right of the advowson to the other in fee, this advowson is both in gross and appendant.(2)

If an advowson appendant and one in gross are united, the advowson will be appendant for one turn, and in gross for the other. (3)

So, if there are three seised of a manor with an advowson appendant, and two of them release all their right of the advowson to the third, the third is seised of two parts of the advowson as in gross, and of the third part as appendant; the third part never having been severed from the manor, but if the third dies, the entire advowson descends in gross to the heir, for nothing was in jointure but the manor that survived to the other two. (4)

(1) Anon. Dy. R. 259. a.

(2) Dod. on Adv. 60.

(3) Marsh and Smith's case,

1 Leon. R. 26.

60.

(4) Dod. on Adv. Lect. 11.

CHAP. II.

On Advowsons donative.

AN advowson donative is a spiritual prefer- Definition of

ment in a church, chapel, or vicarage, which is in the gift or disposal of the patron, subject to his visitation only, and without presentation, institution, or induction. (1)

an advowson donative.

advowsons

All advowsons probably before the year one History of thousand two hundred were donatives, excepting donative. so far as clerical patrons, or persons desirous of complying with the wishes of the church, might have presented their clerks to the bishops for institution; or where the bishops themselves had the right of collation. Ante consilium Lateranense, says Bracton, nullum currebat tempus contra præsentantes. About that period all the advowsons in England, as well those in the King's hands as others, became presentative, the method of institution by the bishop, as has been stated, · not being established more early than the time of Archbishop Becket in the reign of Henry II. There is therefore consider

(1) 1 Inst. 344. a.

Tithes, ch. 12. 392.

Seld. on

Com, 22, 23. Fitz. N. B. 42.
Degge's 3 Salk. R. 140. per Ld. C. J.

P. C. ch. 13. 197. Farchild De Grey in Powel v. Mil

V.

Gayre, Cro. Jac. 63. 2 Bl. | burn, 3 Wils. R. 355.

able difficulty in accounting for the origin of those donatives that exist in the present day. The register leads to a conclusion that they are all ancient and of the King's foundation. Lord Coke says nothing of their antiquity, and conceives that they may be by the King's licence. "The King by his letters patent may license any subject to found a church or chapel, and ordain that it shall be donative and not presentable, to be visited by the founder and not the ordinary." (')

Before the reign of King John, it would appear that churches of the King's foundation, or those which were founded by the King's licence, were not more donatives than others, because all were donatives. When the law, as stated by Lord Coke, originated, by what authority, when it was abrogated, or whether it still exists, seems matter of uncertainty. One might suspect, however, that the present donatives were only such old advowsons as had escaped the influence of the canon law, and this idea would have been supported by the requisite of antiquity which is attached to them, and by the rule in Lord Coke, which says, that if they are once presented to, they shall continue presentable; but that on the other hand, most writers refer their origin to the King's foundation, a royal licence, or letters patent, and the rule in Lord Coke has been denied by eminent judges. (2)

(1) 1 Inst. 344. a. (2) Still. cases, 336. Fitz. N. B. 35. Seld. ch. 12. 1 Inst.

344. a. Repington v. The Governor of Tamworth, 3 Wils. R. 150.

1

Although the person on whom a donative is Requisites bestowed does not gain possession either by to be observpresentation, institution, or induction, several taking a dothings are nevertheless necessary in order to preserve and maintain the possession.

native.

Thus, First. The donee must be a priest in 1. Must be a holy orders by episcopal ordination, as all eccle- priest. siastical promotions otherwise conferred are void. (1)

prayers.

Secondly. Within two months after he shall 2. Must read the proper be in the actual possession of his donative, he must read the morning and evening prayers in his church or chapel, according to the book of common prayer at the times therein appointed, or in case of impediment to be allowed of by the ordinary, then within one month after such impediment removed, together with the form of giving assent and consent thereunto. (2)

declaration

of confor mity.

Thirdly. He must before his admission sub- 3. Must subscribe to the declaration of conformity to the scribe to the liturgy of the church of England, before the archbishop, bishop, or ordinary of the diocese, or his vicar general, chancellor, or commissary; and if the donative hath a parish church belong

(1) Per Ld. C. J. De Grey, in Clerk v. Milburn, 3 Wils. R. 365. 13 & 14 Car. 2. c. 4. s. 14. 44 G. 3. c. 43.

(2) 13 & 14 Car. 2. c. 4.

s. 6.
23 Geo. 2. c. 28. s. 2.
3 Wils. R. 365.

4. Must take

the oaths of allegiance and supremacy.

5. Must sub

scribe to the thirty-nine articles.

6. Must take

the oaths of abjuration.

ing to it, must take a certificate under the hand and seal of the person before whom he subscribed his assent, and afterwards read the same in such parish church. (')

Fourthly. He must take the oaths of allegiance and supremacy, before such person as has authority to admit him thereto, that is, his patron, because the statute 1 Eliz. requires that the oath of supremacy be taken by all persons who shall be preferred to any ecclesiastical promotion before such persons as shall have authority to admit them, and also because the 1 Will. & Mary, c. 8. § 5. says, that every person admitted to any office or employment, ecclesiastical or civil, shall be obliged to take both the oaths of allegiance and supremacy. (2)

Fifthly. If the donative be a benefice with cure, he must subscribe to the thirty-nine articles in the presence of the ordinary, by 13 Eliz. c. 12. which the author of the clergyman's law supposes must be the ordinary of the diocese, and not his patron. (3)

Sixthly. He must within six months take the oaths of allegiance, supremacy, and abjuration,

(1) 13 & 14 Car. 2. c.6.
s. 5. 13 Eliz. c. 12. s. 1.
(2) 1 Gibs. Cod. tit. 34.
866. 3 Wils. R. 365.

(3) 13 Eliz. c. 12. s. 3.

Carver v. Pinkney, cited in Powel v. Milbank, Black. R. 851., and 3 Wils. R. 355. 13 & 14 Car. 2. c. 4. s. 17. 2 Burn's Ecc. L. 225.

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