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hath a right of presentation to the bishop 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 (10) 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 conferring the benefice, the whole that is done in common cases by both presentation and institution. An advowson donative (11), is when the king, or any sub

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clerk dies before induction, the king shall present again ; for the king ought always to have the full and complete effect of the thing which is due to him. (Hull's case, 9 Rep. 132; Brockham's cote, Litt. Rep. 135.) But after presentation, admission, and institution, the church is full against every subject, before induction. (Hutchim v. Glottr, Cro. Jac. 463.) Before admission, a subject may vary his presentation, so far as to present a second clerk, and the ordinary may admit which of the two he pleases (Mallory's Qtiare Intprdit, 81): but whether the first presentation may be absolutely revoked, seems not well settled. (Stoke v. Sykes, Latch, 191, 253.) As to the grounds upon which the ordinary may be justified in refusing to accept a presentation, see Specot's case, 5 Rep. 58, and Mallory's Quare Impedit, 87; sec also post, Vol. III. p. 246; ante, note (3) to this chapter. By the common law, all patrons have six months allowed to determine on their presentation, before a lapse will occur. (Doctor and Student, chap. 36, part 2.) And a caveat may be entered by the patron to prevent the bishop from hastily admitting a clerk presented by one who is not in truth the patron. (Degge, part 1, c. 3; nee post, p. 277.)

(10) As the Bishop collates to benefices which are pleno jure in his own gift, so he doth to those which fall to him by lapse. (Johnson's Eccles. L. 81; Watson, c. 15.) (11) Watson say*, (in the l.'ith eh.

of his Comp. Inc.) not only a church or chapel, but all sorts of ecclesiastical preferments, may be donative. Bishopricks were donative until the time of king John. Some prebends are still donative; as those in the Royal Chapels at Windsor and Westminster, which the king may confer by patent; and his clerk may take possession without any institution or induction. A nomination, however, to a perpetual curacy is not strictly a donative; for, though it requires neither presentation, institution, nor induction, the curate must be authorized by a license from the bishop before he can legally officiate ; whereas possession by donation receives its full effect from the sole authority of the donor. (Bowellv. Milbank, IT. R. 401, n. The King v. Bishop of Chester, 1 ,T. R. 40S.) Degge, (in his Pars. Couns.p. 1, c. 13,) informs us, that " donatives are within the statute against simony j and where they have cure of souls, they are likewise within the statute of pluralities." And the same doctrine as to simony is judicially laid down in Bawderock v. Mackallar, Cro. Car. 331; and Carver v. Pinkney, 3 Lev. 83. Mr. Wooddeson, however, (in his lecture. Vol. l.p. 330,) observes, the words of the statute apply only when the donative is the first living taken; if it be the second, as it requires neither institution nor induction, the case is out of the statute. (See 21 Hen. VIII. c. 13.) Still, by the canon law, the incumbent will be

ject by his license, 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 in the clerk by the patron's deed of donation, without presentation, institution, or induction (t). This is said to have been anciently the only way of conferring ecclesiastical benefices in England; the method of institution by the bishop not being established more early than the time of Archbishop Becket, in the reign of Henry II. (A). And therefore, though Pope Alexander III. (/) in a letter to Becket, severely inveighs against the prava consuetudo, as he calls it, of investiture conferred by the patron only, this however shows what was then the common usage. Others contend that the claim of the bishops to institution is as old as the first planting of Christianity in this island, 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 (m), which speaks of presentation to the bishop as a thing immemorial. The truth seems to be, that where the benefice was to be conferred on a mere layman, he was first presented to the bishop, in order to receive ordination, who was at liberty to examine and refuse him; but where the clerk was already in orders, the living was usually vested in him by the sole donation of the patron; till about the middle of the twelfth century, when

(i) Co. Litt. 344. (/) Decretal, 1. 3, t. 7, c. 3.

(*) Seld. Tith. c. 12, s. 2. (m) A. D. 1239.

prevented from holding both bene- gative of the crown in presenting to (ices, unless he has a dispensation, benefices where it has promoted the (Ayliffe's Parerg. 418 ; Lindw. lib. 3, last incumbent, does not extend to tit. 5, c. 2.) A donative does not donatives; for the promotion doth lapse in consequence of remaining not make a vacancy of the donative, void, unless it be so specially provided it causes no cession, the parson is still for in the foundation (see pott, p. in by the authority of the patron. 276): the bishop may, however, by (Bishop of London v. Attorney Genespiritual censures, compel the patron rat, Show. P. C. 184.) Presentation to nominate a clerk. (1 Inst. 344; to a donative by a stranger, and adWats, c. 12; Fairchild v. Gayre, Yelv. mission and institution thereupon, 61.) But if a donative be augmented are acts not merely voidable but of no by Queen Anne's bounty, it will lapse effect ah initio. (1 Inst. 344. See in like manner as presentative livings. Vol. III. p. 250, n.) (1 Geo. 1. st. 2, c. 10.) The pro-

the pope and his bishops endeavoured to introduce a kind offeodal dominion over ecclesiastical benefices, and, in consequence of that, began to claim and exercise the right of institution universally, as a species of spiritual investiture.

However this may be, if, as the law now stands, the true patron once waves this privilege of donation, and presents to the bishop, and his clerk is admitted and instituted, the •advowson is now become for ever presentative, and shall [ * 24 ] never be donative any more(n) (12). For these exceptions to general rules and common right are ever looked upon by the law in an unfavourable view, and construed as strictly as possible. If therefore the patron, in whom such peculiar right resides, does once give up that right, the law, which loves uniformity, will interpret it to be done with an intention of giving it up for ever; and will therefore reduce it to the standard of other ecclesiastical livings.

II. A second species of incorporeal hereditaments is that n. Tithes: of tithes; which are defined (13) to be the tenth part of the

(n) Co. Litt. 344; Cro. Jac. 63.

(12) Degge, 205, is in accordance with the text; and though in the case of Ladd v. Widdovs, (2 Salk. 541; 3 Salk. 140; Holt's Rep. 259;) a donative was held not to be destroyed by one, or by several, presentations; still, it does not clearly appear from the reports, that the dictum is to be understood generally; on the contrary, as the court, in the case cited, assigns as the reason for the judgment then given, that the donative was created by let ten patent; the inference should rather seem to be, that with respect to donatives which are such merely by prescription, by repeated interruptions (if not by a single voluntary one) the prescriptive title would be lost.

(13) The definition proposed in the text is not strictly accurate. Ayliffe (in his Parerg. Ju. Can. 504) observes, "tithe is a certain quota or portion of moveable goods; I say a quota or certain portion, because tithe is not in all places the tenth part, but various

according to the custom of parishes."
(And see Doct. and Student, c. 55.)
This objection, however, is not of
great weight, for, whatever mayhave
been the case in other times and
countries, with us the word tithe has
acquired a fixed meaning. It is be
lieved, there is no instance in which
more than a tenth is here paid as tithe,
eo nomine; and that a person shall
take less than a tenth part of any
specific article, having a compensation
in the parishioner's work and labour,
by no means disproves the parson's
right to a full tenth, but shows that
he receives a consideration, which is
in fact an acknowledgment of that
right. {Smyth v. Sambrook, 1 Mau.
& Sel. 73. Crank case, Clayton,
M.) The faulty part of the definition
seems to be the supposition that tithe
consists, in all cases, of the tenth part
of the increase yearly arising and
renewing. This is not correct, even
as to predial tithes, universally; and
to mixed and personal tithes it does

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increase, yearly arising and renewing from the profits of lands, the stock upon lands, and the personal industry of the inhabitants: the first species being usually called predial, as of corn, grass, hops and wood (o) (14): the second mixed, as of wool, milk, pigs, &c, (p), consisting of natural products, but nurtured and preserved in part by the care of man (15); and of these the tenth must be paid in gross: the third personal, as of manual occupations, trades, fisheries, and the like; and of these only the tenth part of the clear gains and profits is due (17) (16).

(0) 1 Roll. Abr. 635; 2 Inst. 649. (p) Ibid. (q) 1 Roll. Abr. 656.

not at all apply. (See the 4th ch. of Toller on Tithes.)

(14) Wood is one of the instances to show that predial tithe may be payable in respect of an article of which the renewal is not annual. Silractedua is tithcable when it is felled; and, between the falls several years commonly (and a great many years, not unfrequently) intervene. (Page v. Wilson, 2 Jac. & Walk. 523; WaU ton v. Tryon, 1 Dick. 245; Chichester v. Sheldon, Turn. & Russ, 249.)

(15) Burn, Watson, Wood, Degge, Toller, and other writers on tithe, speak of mixed tithe, not as something bearing a mixed character, partaking partly of the qualities of predial, and partly of the qualities of personal tithe; but as tithe arising, not immediately from the ground, but mediately from animals which have their nourishment from the ground. Many of the subjects of mixed tithe seem to be most correctly included in the last description, though the appellation " mixed," would lead one, a priori, to expect that our author's definition would be found most correct. Perhaps, neither definition is positively incorrect, as far as it goes; but both may be incomplete.

(16) By the statute of 2 & 3 Edw. VI. c.'13, s. ", it is enacted, that "every person who heretofore within

forty years has accustomably used to pay personal tithes, shall, yearly at Easter, pay for his personal tithes the tenth part of his clear gains.'' This act greatly curtailed the claim to personal tithe; the 11th section of the statute preserved to the church, however, the right of tithe of fish, taken in the sea. According to Linda. 195, and Wood, b. 2. c. 22, this tithe is payable where the fisherman hears divine service and takes the sacrament. (See also the Anonymous Case, Cro. Car. 264; The King v. Carlyon, 3 T. R. 386; Scarborough v. Hunter, Bunb. 43; Gwaens v. Kelynack, Bunb. 25(i ; and Anon. Iletlcy, 13 ; but if, as appears to be the case, it is a tithe due by custom only, custom must determine to whom it ought to be paid. Stat. 27 Hen. VIII. c. 20.) WTith respect to fish taken in rivers, it seems settled, that tithes are not payable except by custom. (Davies v. Huddlestone, Cro. Car. 339.) And offish taken out of ponds, not for sale, but for consumption in the proprietor's own family, no tithe is due, (Bohun, 135.)

It was decreed in the House of Peers, on appeal from the Court of Exchequer, that the tithes of a mill are personal tithes, against several dicta in the books; and that, in consequence of theirbeing personal tithes,

It is not to be expected from the nature of these general commentaries, that I should particularly specify what things are titheable, and what not; the time when, or the manner and proportion in which, tithes are usually due. For this I must refer to such authors as have treated the matter in detail: and shall only observe, that, in general, tithes are to be paid for every thing that yields an annual increase, as corn, hay, fruit, cattle, poultry, and the like; but not for any thing that is of the substance of the earth, or is not of annual (17) increase, as stone, lime, chalk, and the like; nor for creatures that are of a wild nature, or ferce natura (18), as deer, hawks, Sfc. whose increase, so as to profit the owner, is not annual, but casual (r). It will rather be our business

(r) 2 Inst. 651.

not the tenth toll, or tenth dish of the corn ground, belongs to the parson; hut the tenth part of the clear profits, after the charges of erecting the mill, and the other charges of servants, horses, and other incidental expenses deducted. (Chamberlain \. Ncu-le, 1 Br. P. C. ICO, fol. edit.; Manly v. Cvrtti, 2 Pr. 295.)

It appears, then, that for all corn mills, however ancient, If they have been accustomed to pay tithe, and for all corn mills erected since the statute, tithes must be paid. But where the date of the first erection of an ancient mill is not known, and it has never been subject to the payment of tithes, it will, in legal intendment, be taken to have been erected before the etalute, and so to be tithe free. (Bohun, 127; Hughes v. liillinyhurst, 2 Gwill. 644; and see 2 & 3 Will. IV. c. 100.) However, if any additional pairs of stones are added to an ancient mill, it seems now settled, after considerable fluctuation of judicial opinion, that tithe must be paid in respect of the increased quantity of corn ground. (Maniyv. Taylor, 3 Ves. & Bea. 71.) Corn mills only are regularly subject to layment of personal tithe; but, by custom, tithe maybe payable for mills

of any other description. (Gibs. 666: Talbot v. May, 3 Atk. 18.)

Besides the distinctions of tithe noticed in the text, as predial, mixed, and personal, there is another division of them into great and small tithe, which will be adverted to, post, in the note to p. 28.

(17) See ante, notes 13 and 14 to this page, that this description holds good generally, but not universally.

(18) By special custom, tithe maybe payable in respect of animals ferce natura. Custom, if well established, and not inconsistent with positive law, or public policy, is conclusive upon all questions of tithe. (See Mat. 27 Hen. VIII. c. 20.) Perfectly wild rabbits, in which no man has a fixed property, are not titheable of common right, when taken. {Wardens. JJenet, 1 Rolle's Ahr. 635.) Even of rabbits preserved in a warren, and which are strictly private property, it seems, no tithe can be demanded, except by custom: but a claim to tithes in kind of rabbits from a warren, or to a modus for them, may be established by proof of a custom. (Walronv. Tryon, 1 Dick. 248; Ambl. 135.)

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