regulated by the Ecclesiastical Dilapidations Acts, 1871 and 1872 (a). But the law has made provision for aiding a beneficed clergyman in repairing or rebuilding his house of residence, or in providing a new one; for the incumbent may (as we shall presently see) raise money to a limited amount, according to the value of the benefice, by mortgage of its profits, or by sale or exchange of the existing house, for another which is more convenient. And, by the Sale of Advowsons Act, 1856, it is provided, as to advowsons vested in (or in trustees for) inhabitants, or other persons forming a numerous class, and deriving no pecuniary advantage therefrom, that the same may be sold by order of such persons, and the proceeds applied to the beneficial purposes therein specified, which include the erection of a parsonage house if there be none, or the rebuilding, repair, or improvement of any parsonage house already existing. The incumbent of a living is in general seised also of the glebe, i.e., of a portion of land attached to his benefice, and forming part of its endowment; and by the Tithe Act, 1842, the tithe commissioners have power to ascertain and define the boundaries of the glebe lands of any benefice, and (with the consent of the ordinary and patron) to exchange such glebe lands for other lands within the same or any adjoining parish, or otherwise conveniently situated. The parson is seised also of the fabric or edifice of the church itself; and in rectories, the chancel, and the churchyard also, are the freehold of the rector (b), while in vicarages, the churchyard is the vicar's freehold, and (a) Jones v. Dangerfield (1875), 1 Ch. D. 438; Gleaves v. Marriner (1876), 1 Ex. D. 107; Caldow v. Pixell (1877), 2 C. P. D. 562; Re Monk (1887), 35 Ch. D. 583. (b) Clifford v. Wicks (1818), 1 B. & Ald. 498; Churton v. Frewen (1866), L. R. 1 Eq. 634. This is equally true in the case of churches built under the Church Building and New Parishes Acts. See 19 & 20 Vict. (1856), c. 104, s. 10. the chancel is the freehold of the impropriator (c), who is liable for its repair (d). But the disposal of the pews and seats in the church appertains, by law, to the ordinary, that is to say, practically, to the churchwardens, to whom the authority of the ordinary, in this particular, is delegated; the chief pew in the church belonging, however, as of right, to the rector, or (in the case of a vicarage) to the impropriator (e). But the consent of the ordinary is still required for the erection of any monument (ƒ), although (under the Consecration of Churchyards Acts, 1867 and 1868) the donor of land to be added to any consecrated churchyard may reserve the right of burial therein, and of erecting monuments and grave-stones therein, for himself, his heirs and assigns, for ever. Moreover, an aisle or side chapel in the church, or a pew in its nave, may be granted, by faculty of the ordinary, to an individual and his heirs as appurtenant to a particular messuage in the parish; and a man may also prescribe for these, as so appurtenant, without being required to show a faculty (g). Secondly, as to ADVOWSONS.-Advowsons are of the class of hereditaments incorporeal (h), an advowson (adrocatio) being the right of presentation to a rectory, vicarage, or other ecclesiastical benefice; and he who has the right of advowson is called the patron (advocatus) of the church (). For, in antient times, lords of manors built churches on their own demesnes, endowed them with glebe, and appointed to be paid to the ministers thereof those tithes which before were given to the clergy in common; and he who thus built and endowed a church had of common right a power annexed of nominating any person, canonically qualified, to officiate in that church, of which he was the founder and patron (k). And this power is, by derivation of title from the lords of manors, now vested in many cases in other private persons, and in corporations, both lay and ecclesiastical (1). But neither an alien nor a Roman Catholic may exercise the rights. of a patron, or present to a living; for if an alien purchase an advowson and a vacancy occurs, the Crown presents (m), and if a Roman Catholic, the University of Oxford or of Cambridge (n). Apparently, a Jew (although unconverted), provided he be the owner of an advowson in his own right, may present to it (o); but should such a person hold any office in the gift of the Crown, to which the right of presentation or of appointment to any ecclesiastical benefice is annexed, he may not in such a case present, the right of presentation devolving upon the Archbishop of Canterbury for the time being (p). [Advowsons are either appendant or in gross. So long as the right of patronage continued annexed to the manor, as some have done from the foundation of the church to (k) Co. Litt. 119b; Gibs. Cod. 7, 57 (2nd ed.). (1) Keen v. Denny, [1894] 3 Ch. 169. Municipal corporations may not exercise any right of presentation (see Hine v. Reynolds (1840), 2 Scott, N. R. 394); but, by the Municipal Corporations Act, 1882 (45 & 46 Vict. c. 50), ss. 121, 122, they are to sell any advowsons vested in them. (m) Wats. Clerg. Law, 105; Naturalization Act, 1870, s. 2, sub-s. (2). (n) Rogers, Eccl. Law, 17; 3 Jac. 1 (1605), c. 5; 1 W. & M. (1689), c. 26; Presentation of Benefices Act, 1713, s. 1; Edwards v. Bishop of Exeter (1839), 5 Bing. N. C. 652; Benefices Act, 1898. (0) Mirehouse v. Rennell, ubi sup. (p) Jews s. 4. Relief Act, 1857, [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 (). And the grantee of a next presentation so conveyed became, pro hac vice, 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 vacaney "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 (g) 61 & 62 Vict. (1898), c. 48, s. 1. (r) Co. Litt. 249 a; Plowd. 150; Alston v. Atlay (1837), 7 A. & E. 289; Rogers, Eccl. Law, 9. (s) 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. 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. [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 (r), 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 (2), 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 same reason, if the bishop suffers the presentation to lapse to the metropolitan, the patron (u) 2 Roll. Ab. 54, tit. Presentment; Bract. 1. 4, tr. 2, ch. 3. (x) Wats. Clerg. Law, 109; Bp. of Peterborough v. Catesby (1608), Cro. Jac. 166 2 Inst. 360; Catesby's Case (1607), 6 Rep. 62; (y) 2 Inst. 231; Wats. ubi sup. |