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[this day, the advowson is appendant, and will pass, or be conveyed, as incident and appendant to the manor, by a grant of the manor only, without adding any other words.] But where the advowson has been once separated from the manor by legal conveyance, it is called an advowson in gross or at large, being annexed no longer to the manor, but to the person of the owner ; and where the inheritance either of the manor or of the advowson has been once thus separately conveyed, the advowson remains for ever afterwards an advowson in gross, and cannot be made appendant again, although it may become appurtenant. An advowson may not now be sold by public auction, unless it be sold in conjunction with the manor or with the land (not being less than 100 acres) with which it is associated (9); but before the recent Benefices Act, 1898, not only the advowson itself, but the next presentation (or any number of future presentations) might have been freely conveyed by the owner during an existing incumbency (r). And the grantee of a next presentation so conveyed became, pro hức rice, the patron of the church ; and as to either species of patron, if he died after a vacancy had happened, the right to present on such vacancy" for the then next turn,” (being as it were a fruit fallen,) was considered as personal, and not as real estate (s).
However, now, under the Benefices Act, 1898 (t), s. 1, the transfer of the right of patronage must be of the whole right of the transferor ; and no transfer is valid, unless more than twelve months shall have at the date of transfer) elapsed since the last admission to the benefice. The transfer must, within one month, be registered in the registry of the bishop of the diocese; but a transmission on death or the like is not to be deemed a transfer. Moreover, the exercise of the right of patronage by any patron is subject to the restrictions imposed by the law of lapse, and by the law of simony; and of each of these subjects, it is now proper to give some account.
(1) 61 & 62 Vict. (1898), c. 48,
(r) Co. Litt. 249 a ; Plowd. 150; Alston v. Allay (1837), 7 A. & E. 289; Rogers, Eccl. Law, 9.
(x) Welch v. Bp. of Peterborough (1885), 15 Q. B. D. 432.
(t) 61 & 62 Vict. c. 48; and see the Benefices Rules, 1899, W. N. (1899), p. 79.
[Lapse is a species of forfeiture, whereby the right of presentation accrues ---to the ordinary, by neglect of the patron to present ; to the metropolitan, by neglect of the ordinary ; and to the Crown, by neglect of the metropolitan. For, it being in the interest of religion, and for the good of the public that the church should be provided with an officiating minister, the law gives this right of lapse, in order to quicken the patron, who might otherwise suffer the church to remain vacant (u). The period of neglect, after which the title to present by lapse accrues from the one person entitled to the other successively, is six calendar months, that is, 182 days (.), exclusive of the day of the avoidance (y). But if the bishop be both patron and ordinary, he shall not have a double time allowed him to collate in (z), the forfeiture accruing whenever the negligence has continued six months in the same person. And if the bishop doth not collate his own clerk immediately to the living on his right by lapse accruing, and the patron presents, though after the six months have elapsed, yet the patron's presentation is good, and the bishop is bound to institute the patron's clerk (a). For as the law only gives the bishop this title by lapse, to punish the patron's negligence, there is no reason that if the bishop himself be guilty of equal or greater negligence, the patron should be deprived of his turn. So, also, and for the saine reason, if the bishop suffers the presentation to lapse to the metropolitan, the patron
(u) 2 Roll. Ab. 54, tit. Present. ment ; Bract. 1. 4, tr. 2, ch. 3.
(x) Wats. Clerg. Law, 109; Bp. of Peterborough v. Cateshy (1608), Cro. Jac. 166 : 2 Inst. 360 ;
Catesby's Case (1607), 6 Rep. 62 ;
(y) 2 Inst. 231 ; Wats. ubi sup.
[may present before the archbishop has filled up the benefice ; but the ordinary cannot, after lapse to the metropolitan, collate his own clerk to the prejudice of the archbishop (6). For (unlike the patron) the ordinary had no permanent right and interest in the advowson, but merely a temporary one ; and having neglected to make use of it during the time, he cannot afterwards retrieve his neglect. But if the presentation should lapse to the Crown, prerogative here intervenes and makes a difference; and the patron shall not recover his right till the king has satisfied his turn by presentation (c).
In case the benefice becomes void by death, or by reason of plurality, the patron is bound at his own peril to take notice of the vacancy, the six months running from the date of the vacancy (d); but in the case of a vacancy by resignation or through canonical deprivation, or if a clerk presented be refused for insufficiency, these being matters of which the bishop alone is cognizant, —the law requires him to give notice thereof to the patron, and the six months date only from the time when such notice is given (e); but an ecclesiastical patron is not entitled to this notice ($). Neither shall any lapse accrue to the metropolitan or the Crown in cases where the bishop is precluded, by his having neglected to give notice to the patron, from himself presenting ; for it is universally true, that neither the archbishop nor the Crown shall ever present by lapse, but where the immediate ordinary might have collated by lapse within the six months, and hath exceeded his time (9). Also, if the bishop refuse or neglect to examine and admit the patron's clerk (without good reason assigned), he is styled a disturber, and shall not have any title to present by lapse ; for no
(6) 2 Roll. Ab. 368.
(c) Doctor and Student, d. 2, ch. 36; R. v. Abp. of Canterbury (1629), Cro. Car. 355.
(d) Wats. Clerg. Lau, 5; Rogerz, Ercl. Law, 488.
(e) 2 Burn, Eccl. Lair, 157.
[man shall take advantage of his own wrong (1). Also, when the right to presentation is litigious (i.e., contested), and an action is brought to try the title, making the bishop a defendant, no lapse accrues until the question of right is decided (0) ;] and under the Benefices Act, 1898, s. 5, in reckoning the date for lapse, no account is to be taken of the period intervening between the bishop's refusal under that Act to institute a presentee, and the decision of the court on such refusal, nor, of course, of the period intervening between the presentation and the bishop's refusal to institute.
But the Act (s. 6) provides that a patron may not (in respect of the same vacancy) present again the same person whom the bishop has refused; and any such second presentation is declared void.
[Simony is the corrupt presentation of any person to an ecclesiastical benefice, for money, gift, or reward (k). Divers Acts of Parliament have from time to time been passed to restrain the practice. First, the 31 Eliz. (1588), c. 6, whereby if any patron, for money or reward, or promise of money or reward, presents a person to any benefice with cure of souls or other ecclesiastical benefice or dignity, both the giver and the taker are to be fined, and the presentation is to be void, and the presentee is rendered incapable of ever enjoying the same benefice, and the Crown presents for that turn. Secondly, the 1 W. & M. (1689), c. 16, which provides that no such simoniacal contract shall prejudice the innocent patron in reversion. Thirdly, the Lunacy Act, 1713, whereby if any person, for money or reward, or promise of money or reward, procures the next presentation to any living, and is presented to it thereupon, the offender is made subject to all the ecclesiastical penalties of simony,
(i) Wats. Clerg. Law, 112; 2 Burn, Eccl. Lawr, 358.
(k) Baker v. Rogers (1600), Cro. Eliz. 790.
[and is disabled from ever holding the benefice, and the presentation devolves to the Crown.] And by the Clerical Subscription Act, 1865, every person instituted or collated to any benefice, or licensed to any perpetual curacy, lectureship, or preachership, must previously make and subscribe (in addition to the other declarations required by that statute) a declaration that he has not committed simony. The form of this declaration, as appointed by the Benefices Act, 1898 (I), and as given in the schedule to that Act, is to the same effect ; and (to prevent any evasion) the words of the declaration are very precise.
[Many questions have arisen in our courts with regard to what is, and what is not, simony ; and, among others, these points seem to be clearly settled :--1. That the sale of an advowson, (whether the living be full or not,) is not simoniacal, unless connected with a corrupt contract or design as to the next presentation (m). 2. That to purchase a next presentation, the living being actually vacant, is.. simony, that being expressly in the face of the statutes (n). 3. That for a clerk to purchase, either in his own name or in the name of another, the next presentation, and be thereupon presented at any future time to the living, is simony (o). But that, 4, a bargain by any other person for the next presentation, (even should the incumbent be in extremis,) if without the privity, and without any view to the nomination, of the particular clerk afterwards presented, is not simony (p); and that under any simoniacal contract made with the patron, although the presentation is void (1), yet the clerk who is innocent of evil intention
(l) 61 & 62 Vict. c. 48.
(m) Bac. Alb. tit. Simony, 189; Bishop of Lincoln v. Wolferstan 1763), 2 Wils. 174 ; 3 Burr. 1504; Fox v. Bishop of Chester (1829), 0 Bing. 1; Alston v. Atlay (1836), 6 Nev. & M. 686 ; Walsh v. Bishop of Lincoln (1875), L. R. 10 C. P. 518.
(n) Baker y. Rogers (1600), Cro. Eliz. 788; Moor, 914, S. C.
(0) Winchcombe v. Bishop of Winchester (1617), Hob. 165.
(p) For v. Bishop of Chester (1829), ubi sup. ; 3 Bligh (N.s.) 123, $. C. (9) Whish
Hesse (1831), 3 Hagg. 659.