Advowson.

is merely in idea and abstracted contemplation; indeed, if we would fix a clear notion of an incorporeal hereditament, we must be careful not to confound the profits produced with the thing or hereditament producing them. Incorporeal hereditaments are principally advowsons, tithes, commons, ways, offices, dignities, franchises, corodies or pensions, annuities and rents. An advowson is the right of presentation to a church or ecclesiastical benefice (a). It signifies the taking into protection, and therefore is synonymous with patronage; and he who has the right of advowson is called the patron of the church. Advowsons are either appendant or in gross. Lords of manors being originally the only founders and patrons of Co. Litt. 119. churches, the right of patronage or presentation, so long as it continues annexed to the possession of the manor, as some have done from the foundation of the church, is called an advowson appendant, which will pass with the manor as incident or appendant thereto by a grant of the manor only, without Co. Litt. 307. adding any other words. But where the property of the advowson has been once separated from the property of the manor by a legal conveyance, it is called an advowson in gross, or at large, Co. Litt. 120. and never can be appendant any more; but becomes annexed to the person of its owner, and not to his manor or lands.

Ibid. 121.

In Gross.

Presentative.

Advowsons are either presentative, collative, or donative. An Co. Litt. 120. advowson presentative is where the patron has a right of presentation to the bishop or ordinary, and to demand of him to institute his clerk, if he finds him canonically qualified; and this is the most usual advowson.

Collative.

An advowson collative is where the bishop and patron are one and the same person; in which case he cannot present to himself; but he does, by the one act of collation, or conferring

(a) By 3 & 4 Wm. 4, c. 27, s. 30, no advowson can be recovered after the period during which three clerks in succession shall have held the same, all of whom shall have obtained possession adversely to the right of presentation, or gift of the person claiming as patron, or of some person, through whom he claims, if the periods of such incumbencies shall together amount to sixty years; and if not, then after the expiration of such further time as with the time of such incumbencies shall make up sixty years. By s. 31, incumbencies after lapse are to be reckoned within the period, but not incumbencies after promotions to bishopricks, which are to be deemed to be a continuation of the incumbencies of the clerks so preferred. By s. 33, no advowson is to be recovered in any case after one hundred years of adverse possession. By s. 34, at the end of the period of limitation the right of the party out of possession is extinguished.

By 4 & 5 Wm. 4, c. 39, in all actions of quare impedit, where a verdict shall pass for the plaintiff, in addition to the damages, he shall recover full costs; but if the plaintiff be nonsuited, the defendant shall recover costs.

the benefice, the whole that is done in common cases by both presentation and institution.

An advowson donative is when the king or any subject, by Donative. his license, founds a church and ordains that it shall be in the

gift 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, Co. Litt. 344. or induction.

Tithes (6) are a tenth part of the increase yearly arising Tithes.

(b) By 3 & 4 Wm. 4, c. 27, after enacting that the word "land" in the act shall xtend to tithes (other than tithes belonging to a spiritual or eleemosynary corporation ole), and also to any estate or interest in them, and of whatever tenure, and that the word "rent" shall extend to all periodical sums of money charged upon, or payable out of any land (except moduses or compositions belonging to a spiritual or eleemosynary corporation sole), it is enacted, that no land or rent shall be recovered but within twenty years after the right of action shall have accrued. Sect. 3 defines when the right shall be deemed to have accrued; in the case of an estate in possession; on dispossession; on abatement or death; on alienation; in case of future estates; and in the case of forfeiture or breach of condition. By s. 11, no right can be preserved by continual claim. By s. 16, persons under disability of infancy, lunacy, coverture, or beyond seas, and their representatives are allowed ten years from the termination of their disability or death; but by s. 17, no action can be brought beyond forty years after the right of action shall have accrued; and by s. 18, no further time is allowed for a succession of disabilities. By s. 34, at the end of the period of limitation the right of the party out of possession is extinguished. By s. 43, the act extends to the spiritual courts, restraining any proceedings therein for the recovery of tithes, except within the period during which an action or suit at law or in equity may be brought for that purpose. By the act 6 & 7 Wm. 4, c. 71, "for the commutation of tithes in England and Wales," provisions were made, whereby the land and tithe owners of two-thirds in value in any parish in England or Wales, may agree for the payment of an annual sum by way of rent-charge, instead of the great and small tithes of the parish collectively or severally to the respective owners thereof. By s. 26, the consent of the patron is necessary to every agreement for commutation of ecclesiastical tithes; and by s. 27, the confirmation of the tithe commissioners to the agreement is necessary in every case of commutation of tithes. By s. 29, land of freehold tenure, not exceeding twenty acres, may be given to any ecclesiastical owner as commutation for tithes, or in discharge of, or exchange for, rent-charge, agreed to be paid instead of tithes; but such land must be free from incumbrances, except leases, at improved rent, land-tax, or other usual outgoings; and such agreement must be confirmed by the patron and tithe commissioners; and by s. 30, the commissioners must satisfy themselves of the title of such land. The total sum agreed to be paid as rent-charge instead of tithes, and the expenses of effecting the commutation must be apportioned amongst the several lands in the parish, according to principles stated in the thirty-third section of the act. By s. 36, the tithe commissioners may ascertain the total value of tithes in any parish in which no agreement was made previous to 31st October, 1838, and award the sum to be paid as rent-charge, which shall be binding on the whole parish; and in such case, by s. 37, the tithes must be valued according to the average of the seven years preceding Christmas 1835, without making any deduction on account of parochial and county rates. By

from the profits of lands, the stock upon lands and the personal industry of the inhabitants; the first species being called

s. 38, the commissioners in certain cases may increase or diminish the sum agreed to be paid for commutation. By s. 40, the value of the tithes of hop-grounds, orchards, and gardens, is to be estimated according to the average rate of composition for the tithes of hops, fruit, and garden produce for seven years preceding Christmas 1835, within a district to be assigned by the commissioners, and estimating the same as chargeable to all taxes to which such tithes are liable. By s. 41, the tithes of coppice wood are to be calculated on an average of the value of coppice wood cut during the same period in the parish and neighbouring parish, and considering them as chargeable to taxes and rates. By s. 43, provision is made for valuing tithes of lands to which the average of seven years cannot apply. By s. 44, moduses, &c. are to be allowed for by estimating their amount as the value of the tithes, payable from the lands or produce in respect of which they are rendered. By s. 49, no right to tithes barred by the statutes of limitation is revived by the act. By ss. 56 and 57, the rent-charge in all cases, not specially provided for in the act, is to be valued according to the average price of wheat, barle', and oats, for the seven years next previous to Christmas 1835. By s. 58, the rent-charse may be apportioned by the landowner, with the consent of the person entitled therto on particular lands in exclusion of others. By s. 64, two copies of every confirned instrument of apportionment and of every confirmed agreement for giving land insead of tithes or rent-charge, duly sealed with the seal of the tithe commissioners, must be deposited, one in the registry of the diocese, and the other with the incumbent, or churchwardens of the parish, and all persons interested are to have access thereto, and to be furnished with copies or extracts at 2s. 6d. for the inspection, and 3d. a folio for the copy or extract. By ss. 69 and 71, rent-charges are liable to parochial and county rates, and subject to the same incumbrances and incidents as tithes before the act; and by s. 70, rates and charges, if not paid by the owner of rent-charge, may be recovered from the occupiers of the land in the same manner as poor rates, who may deduct the amount from their rent, and the landlord may deduct the amount from the rent-charge. By s. 72, apportionments may in certain cases be altered by the commissioners of land-tax. By s. 77, owners of particular estates may charge the costs on the estate for twenty years, but one-twentieth part of the amount must be annually paid off till discharged; and by s. 78, the costs of ecclesiastical tithe-owners may be charged on the benefice, and paid off in the same way. By s. 79, if tenant of lands at rack-rent dissent from paying the rent-charge, the landlord may take the tithes during the tenancy. By s. 80, tenant paying rent-charge is to be allowed the same in account with his landlord. By s. 81, a power of distress is given for recovery of rent-charge; and by s. 82, where there is no distress, a writ is to be issued directing the sheriff to summon a jury and assess arrears. By s. 86, the powers of 4 & 5 Wm. 4, c. 22, amending 11 Geo. 2, c. 19, for apportioning rents reserved on leases, determining on the death of the person making them (though not strictly tenant for life), or on the death of the tenant pur autre vie, and for apportioning rents, annuities, and other payments coming due at fixed periods, are extended to all rent-charges payable under this act. By s. 87, provision is made for the sale of buildings, and the sites thereof rendered unnecessary by the commutation of tithes. The act does not extend to any personal tithes, except those of mills; nor to payments, in lieu of tithes in London, or to permanent rent-charges in lieu of tithes, on the rent or value of any houses or lands in any city or town under any custom or private act of parliament.

By 7 Wm. 4 and 1 Vict. c. 69, the prices at which the conversion from money into

635.

predial, as of corn, grass, hops, and wood; the second mixed, 1 Roll. Abr. as of wool, milk, pigs, &c., and of these the tenth must be paid 2 Inst. 649. in gross; the third personal, as of manual occupations, trades, Ibid. fisheries, and the like; and of these only the tenth part of the

clear gains and profits is due. Upon their first introduction, 1 Roll. Abr.

656.

corn is to be made at the time of the confirmation of each apportionment, are declared to be 7s. Old. for a bushel of wheat, 3s. 11 d. for a bushel of barley, and 2s. 9d. for a bushel of oats.

By 1 & 2 Vict. c. 64, persons having the power of appointment over tithes or rentcharge may merge them in the land; and tenants for life may cause tithes or rentcharge to merge in lands upon which they are charged, and which are settled to the same uses. Tithes and rent-charges may also be merged in copyhold lands.

By 2 & 3 Vict. c. 62, on merger of tithes or rent-charge the incumbrances thereon are to become charges on the lands. But by s. 2, power is given for specially apportioning such incumbrances upon any lands of the party of three times the value of the incumbrances. By s. 6, tithes and rent-charge of glebe may be merged. By s.7, provision is made for deducting the value of tithes and rent-charge from arbitrary fines in cases of merger in copyholds under 1 & 2 Vict. c. 64, s. 4. By s. 9, power is given to make parochial agreements for commutation of Easter offerings, mortuaries, or surplice fees, or of the tithes of fish or fishing, or mineral tithes for rent-charge. By s. 11, a fixed rent-charge may be substituted for a contingent rent-charge on lands partially exempt from tithes. By s. 12, the provisions of 6 & 7 Wm. 4, c. 71, ss. 48 and 71, for substituting fixed rentcharge for tithes, are extended to crown lands. By s. 13, provision is made for the tithes of lammas lands. By s. 14, rent-charge in respect of tithes of common appurtenant is to be a charge on the allotments made in respect of the lands to which the right of common attached. By s. 15, the provisions in the above acts as to pulling down and sale of buildings are extended to collegiate bodies, notwithstanding the restraining statute. By s. 16, the provisions of 6 & 7 Wm. 4, c. 71, s. 77, are extended to corporate and collegiate bodies. By s. 26, provision is made for dividing the tithe of fruit plantations in certain cases; by s. 27, newly-cultivated fruit plantations are to be charged an additional sum; and by s. 28, when displanted they are to be relieved from such additional charge. By s. 29, provision is made for mixed plantations of hops and fruit. By s. 30, when land subject to rectorial and vicarial tithes is liable to an extraordinary charge for the tithes of a mixed plantation of hops and fruit, an acreable rent-charge is to be fixed; and by s. 31, provision is made for future mixed plantations. Sect. 32, defines the mode in which the rent-charge for hops and fruit is to be fixed in certain cases; and by s. 34, provision is made for settlement of disputes as to boundaries.

The particulars relating to the amount of the rent-charge which, under 7 Wm. 4 and 1 Vict. c. 69, s. 4, are now required to be stated in the instrument of apportionment, are: the whole sum to be paid instead of the tithes of the whole parish or district; the whole number of bushels of wheat, barley, and oats (collectively) apportioned on each estate or separate portion thereof; and the several sums of money which at the confirmation of the apportionment, were of equal value with the quantities of corn apportioned. The average prices of wheat, barley, and oats, for the seven years next preceding 31st December 1835, computed from the weekly averages of the corn returns, according to an order of the house of commons of 19th February 1836 are, wheat, per quarter, 56s. 3d.; barley, ditto, 31s. 9d.; and oats, 22s.

2 Inst. 646. Hob. 296.

every man, although obliged to pay tithes in general, might pay them to what priests he pleased. But when dioceses were divided into parishes, the tithes of each parish were allotted to its own particular minister; first by common consent or the appointment of lords of manors, and afterwards by the written LL Edgar. c. 1, law of the land; and now, unless there be a special exemption, tithes are of common right due to the parson of the parish, who may be either the actual incumbent, or else the appropriator of the benefice (c).

c. 2.

Canut. c. 11.

Discharge from tithes.

2 Inst. 490.

Lands and their occupiers may be exempted or discharged from the payment of tithes, either in part or totally, by a real composition, or by custom or prescription. A real composition is when an agreement is made between the owner of the lands and the parson or vicar, with the consent of the ordinary and the patron, that the lands shall be discharged from the payment of tithes, by reason of some land or other real compensation to the parson in lieu thereof. But the possessions of the church being by this and other means diminished, the disabling statute, 13 Eliz. c. 10, was made, which prevents, among other spiritual persons, all parsons and vicars from making any conveyances of the estates of their churches, other than for three lives or twenty-one years (d), so that now no real composition made since that statute, is good for any longer term (e).

(c) See the last note.

(d) By 6 Wm. 4, c. 20, explained and amended by 6 & 7 Wm. 4, c. 64, no archbishop, ecclesiastical corporation sole or aggregate, dignitary, canon or prebendary, or other spiritual person, nor any master or guardian of any hospital, shall grant any new lease of any house, land, tithes, or hereditaments, parcel of the possessions of his or their see, chapter, dignity, canonry, prebend, benefice, or hospital, by way of renewal of any former lease thereof, for two or more lives, until one or more of the former lives shall die, and then only for the surviving lives or life, and for such new life or lives as, together, shall make up the number of lives, not exceeding three in the whole, for which such lease shall have been so made. And where any such lease shall have been granted for forty years no new lease by way of renewal can be granted until fourteen years of the old lease shall have expired. And where the old lease has been for thirty years it cannot be renewed until ten years of it have expired: and when for twenty-one years, it cannot be renewed, or (in case of archbishops or bishops) any concurrent lease be granted until seven years have expired. And when any such lease shall have been granted for years, it cannot be renewed by a grant of a lease for a life or lives. But if it should be conformable to the usual practice for the ten years next preceding 1836, ecclesiastical persons may renew such leases for years at shorter periods. The act does not prevent ecclesiastical persons from effecting exchanges under certain conditions; nor from renewing leases under special acts of parliament; nor for the same term as preceding leases, if merely to confirm any title.

(e) But tithes may be commuted for a rent-charge. See note (b) to this chapter.