better entendment whereof wee will first see what can bee said vpon both paâ—â—s That it is appendant onely in respect of the Demesnes thoâ—â—â—r the like authorities or reasons may bee produced It is said that an Advowson appendant to a Mannor cannot be appendant to a Rent or Service of the same Mannor but onely to the Demesnes whereof onely if a man hath a Mannor to which an Aduowson is appendant and granteth the Demesnes cum pertinentijs the Advowson passe appendant therevnto so likewise if he grant the Demesnes excepting the Advowson the Advowson is now becommed in grosse If a man should haue a Mannor and blacke acre that was holden of the same Mannor Escheateth so that the same Acre is become now parcell of the Demesnes of the same Mannor if hee that is so seisied of the same Mannor grant all the Demesnes excepting blacke Acre and the same Advowson the Advowson is become in grosse and yet it is a Mannor notwithstanding for now blacke acre is onely the Demesnes which together with the other seruices cause the Mannor to continue neuerthelesse the Advowson is become in grosse for that that it was appendant onely to the Demesnes of the Mannor which were aliened and cannot now be appendant to blacke Acre because it was neuer before appendant to the same in as much as appendancie is onely granted vpon continuance and prescription and not vpon the same reason If hee that is seisie of a Mannor whereof blacke acre is holden and the same Escheateth and he granteth the same blacke acre vna cum Advocatione the Advowson passeth not appendant to the acre but in grosse as aforesaid but if in the two aforesaid cases a man were seisie to a Mannor before the Statute of Westminster the third De quia emptores terrarum with an Advowson thereto belonging and giue certaino acres parcell of the Demesnes of the same Mannor to diuers persons to bee holden of the same Mannor if afterward such acres Escheate and the Lord granteth the residue of the Demesnes excepting the acres so escheated and the Advowson the Advowson is still appendant to the same Mannor because it was appendant to the same Acres before they were giuen to bee holden of the Mannor If a man were seisied of a Mannor to which an Advowson is appendant and before the Statute of Westminster the third were likewise so seisied of other acres of land in grosse and not parcell of the same Mannor if he had giuen the same acres of Land to diuers persons to bee holden of the same Mannor as he might then haue done and after the same acres of Land escheated now are they parcell of the Demesnes of the same Mannor although they neuer were so before and after the Lord of the Mannor granted all the ancient and former Demesnes of the same Mannor vnlesse one acre this acre and the other acres Escheated maketh now the Demesnes of the same Mannor and the Advowson appendant is still appendant to the whole Mannor but yet it was so appendant in respect of the one acre that was parcell of the ancient Demesnes of the same Mannor and if the Lord intend at any time to seuer this from the Mannor and still to keepe it appendant to no acre but onely to that which was parcell of the Demesnes of the Mannor all which reasons prooue that the Advowson is appendant more in respect of the Demesnes then otherwise Of the other part those cases proue that an Advowson appendant to a Mannor is not appenpant to any part of the Mannor but to the enâ—yretie for it is an intyre thing and therefore if a man hath a Mannor to w ch an Advowson is appendant iâ— he Enfeoffe I. S. of the same Mannor and 〈…〉 Lâ—uerie of the Demesnes and before the 〈…〉 t of the Tenants the Church becomes voyd the Feoffee shall not present because he hath not the Mannor to which the Advowson was appendant but if the tenants afterwâ—â—â—â—ttoâ—ne within sixe moneths after the auoydance he may very well present therevnto So likewise in the former case if the Feoffor oâ— the estranger present before the Attornment of the Tenants yet if afterward attornment be had within the sixe Moneths after the avoidance the Feoffâ—e may bring and maintaine his Quare Impedit and so reâ—uer his presentation which prooueth that the Advowson is appendant to the whole Mannor as it is entyre and not by reason of the Demesnes onely for the determination of the Law in this It is true that the Advowson in such case is appendant to the entyre Mannor and not to any part thereof during such temps as it remaines a Mannor without alteration or disjoyning the Advowson from it neuerthelesse if you will dissâ—lue the Mannor and seuer the Advowson from it and yet desire to haue the same appendant then it cannot be appendant to any part of the Mannor but onely to such Lands as were of the ancient Demesnes of the same Mannor wherefore in the first case Iudgement was giuen that after the Attornment had the Advowson passed to the Feoffee of the Mannor as appendant to the entyre Mannor and that the Graunt made in the meand time betweene the liuerie of the Demesnes and the attornement of the Tenants was voyd and that the Advowson pâ—ssed not thereby to the same Grantee of the Advowson but is by the Attornment by which the seruices passed made appendant to the entiretie in the hands of the Feoffee LECT 9. How an Advowson may bee seuered from the principall and by what meanes it may be reconnexed thereunto againe IN the two last former Lectures hath beene declared at large First to what kind of Inheritance an Advowson may bee properly appendant and then in what manner it may be appendant Now remaineth the third thing thâ—n treated of that is to say how it may be sundred from the principall and againe by what meanes it may be thereto annexed by Entrie or without entrie into its principall It may bee sundred eyther rightfully or by a rightfull conueyance of which wee shall speake more at large when wee declare the nature of an Advowson in grosse and of that which is partly in grosse partly appendant whether it may bee sundred in a wrongfull manner as by a tortious act that is to say by Disseisin of the Mannor to which it is appendant or by a wrongfull assurance as by discontinuance or other wrongfull disposition thereof As for vsurpation wee shall speake thereof in a place more conuenient afterward at large if therefore a man be disseised of a Mannor to which an Advowson is appendant and the Advowson becomes voyde the Mannor still remaining in the hands of the Disseisor this was ancient Law as Bracton saith that he should not haue presented to the Advowson vntill he had recontinued or made his entrie into the Mannor because saith he Quod sesinam habere non poterit quis de pertinentijs antiquam acquiseret
Mannor and Advowson and after the Church becommeth voyd the lessor may present to the Church without any entrie made into the Mannor because his entrie was lawfull into the Mannor But if it be a rightfull purchase that requireth some other act to be done for the execution and perfection of the same then cannot the perfection thereof bee accomplished in the accessarie that is to say in the Advowson before the same bee performed in the principall wherefore it is holden by the better opinion in the 9. E. 3. 43. 839. that where a certaine Chamber was exchanged for certaine Acres of land with an Advowson appendant to the same acres of Land to perfect this exchange hee that had the acres and Advowson in exchange could not present to the Advowson vntill he had made his entrie into the acres And thus much hath beene said how an Advowson appendant may bee seuered from the principall and againe recontinued with re-entrie or without entrie into the same LECT 10. Of Advowsons in Grosse AS concerning our first purposed Diuision to be eyther appendant or in grosse or partly appendant or partly in grosse I haue before prosecuted the first part that is to say The natures of Advowsons appendant now therefore it resteth to speake somewhat of Advowsons in Grosse The originals of Advowsons in grosse seemeth to be grounded vpon two occasions The first is that Advowsons in grosse at the beginning begun originally by one of the before-specified three manner of wayes which is Ratione fundationis for when they were agreed that hee that founded the Church and was at the cost of the building thereof should be Patron thereof hee cannot be Patron of this by reason of any Land or Dâ—â—ation by which his patronage might be appendant but onely by reason of the building which being a Patronage without Land must of necessitie bee the originall cause of Advowsons in grosse The second occasion of Advowsons in grosse was the sundering and seuerance of them from the principall to which they were first appendant and so by Graunt or other Conueyance they became in grosse which before were appendant wherefore how they may be fundred by Graunt now let vs consider and see what questions in our Bookes haue been moued herevpon In the 33. H. 8. 44. 48. 112. Pyer of the Opinion that Shelly is That if a man be seisied of a Mannor to which an Advowson is appendant and alien one Acre parcell of the Mannor and by the same Deed after graunteth the Advowson that the Advowson shall passe in grosse otherwise hee thought the Law to bee as if the Feofment were made of the entyre Mannor yet this Difference agreeth not with the opinion of Hill who thinketh that in both cases the Advowson passeth appendant Yet I thinke If a man be seisied of a Manner to which an Advowson is appendant and after granteth by his Deed one Acre parcell of the Mannor and by another Deed the Advowson and deliuereth both those Deeds at one time to the Grantee although in construction of Law both those Deeds are but one Deed yet the Advowson passeth in grosse clearely and not appendant to the Acre If a man be seisied of a Mannor with an Advowson thereto appendant and graunteth the Mannor to I. and S. excepting one acre the Advowson not being specially spoken of in the Grant it still remaineth to this Acre excepted Fo 〈…〉 saith Bracton Si partem fundi dederit quis quamvis cum omnibus pertinentijs suis partem retinuerit non propter hoc transfertur advocatio sed cum donatore remanebit licet minimam partem fundi retinuerit non enim transfertur cum aliqua parte fundinisi specialâ—tur transfertur If hee which harh a Mannor to which an Advowson is appendant giueth one part of the Mannor with one part of the Advowson to A. and the second part of the Mannor with the second part of the Advowson to B. and the third part of the Mannor with the third part of the Advowson to C. in fee yet notwithstanding this Diuision the Advowson remaineth in common appendant If a Mannor to which an Advowson appendant is belonging discend to an heire and if hee grant the moitie or third part of the Mannor cum pertinentijs no part of the Advowson passeth but if he assigne Dower to his Mother of the third part of the Mannor cum pertinentijs she is hereby endowed of the third part of the Advowson and may haue the third presentment It a man bee seisied of a Mannor or one acre of Land to which an Advowson is appendant and maketh a lease of the Mannor or acre for tearme of life excepting the Advowson the Advowson is in grosse and cannot bee appendant to the reuersion of the Mannor or acre But if I lease the Advowson for tearme of life reseruing the Mannor in my hands yet the reuersion of the Advowson remaineth alwayes appendant to the Mannor or to the acre of Land For if a grant be made by me of a Mannor or acre with the appurtenances the reuersion of the Advowson passeth for the reuersion of an Advowson may bee appendant to a Mannor or acre in possession but the Advowson in possession cannot be appendant to the reuersion of an acre or of a Mannor Also if a man hath a Mannor to which an Advowson is appendant and alieneth the same Mannor and excepteth the Advowson the Advowson is become in grosse and although hee purchase the Mannor yet is the Advowson still in grosse and cannot bee appendant But in all these cases some are of opinionâ— that although the Advowson bee excepted out of the grant of the Mannor yet neuerthelesse it is requisite to haue a Deed of such grant containing such exception otherwise the Advowson will passe with the Mannor LECT 11. Of Advowsons partly appendant partly in Grosse HAuing formerly spoken of Advowsons appendant and in grosse now remaineth the last member of the former diuision to be mentioned which is Advowsons partly appendant partly in grosse Such Advowsons as are partly appendant and partly in grosse are so deemed either in respect of the time or in respect of the persons In respect of the time in this manner some Advowsons there are that are at one time appendant and at another time in grosse and so againe may be appendant as occasion serueth As if a man bee seisied of a Mannor or of an acre of land to which an Advowson is appendant and leaseth the same Mannor or acre excepting the Advowson the Advowson is now become in grosse and yet after the lease is ended shall bee againe appendant as before In respect of the parson it may so happen that an Advowson may bee appendant in regard of a proprietor thereof and that in many cases One case to begin with is this that if a man be seisied of a Mannor to which an Advewson is appendant and an Estranger leauieth a fine of the same Advewson to him
such like likewise to a Castle more vsually to a Mannor all which principall things that is to say the Earledome Honour Castle and Mannor c. are Inheritances compound made and combined of diuers things and in nature different being those which the Logicians call Tota Intigratia It may bee appendant to an Acre of Land or to a Messuage to a Rectorie Parsonage Church or such like And so one Church may be appendant to another of which we shall take occasion to speake in the Lectures following But at this present let vs see in what sort it may be appendant to a Mannor Advowson that lyeth in one Countie may be appendant to a Mannor that lyeth in another Countâ—e And how two or more Advowsons may be appendant to one Mannor may be manifested thus If hee that in Ancient time was seisied of a Mannor that extended so large as it was diuided into diuers Parishes the Lord of the same Mannor eyther gaue out of the same Mannor land to build or to endow euery of the Churches and so euery of them might be appendant to the same Mannor How one Advowson may bee appendant to two Mannors may likewise thus appeare Suppose that A. be Seisied of an Advowson of the Church of Dale as appendant to the Mannor of Sale and that both those Churches by the Ordinarie and by the consent of both the Patrons bee vnited and called the Church of Dale and ordained that the Patrons shall present by turne for euer these Churches by this vnion and confederation are made one and so the Advowson entire and no moities as is betweene Coperceners joyntenants and tenants in common and therefore it is appendant to both Mannors for the Patrons seuerally presenting shall present to the same Church as appendant to both Mannors that is to say the one shall present seuerally to the Church as to his Mannor of Dale and the other also shall present thereto when his turne commeth as appendant to the Mannor of Sale Yet some are of opinion and some authorities there are that each of the same Patrons after the same vnion is seisied De medietate Advocationis Ecclesiae And in what manner soeuer the same Advowson be entire yet is the Parsons intrest seuerall For if such Incumbent which is presented after such vnion made graunt a rent charge out of the Gleebe and one of the Patrons onely confirme no Distresse after the Death of the Incumbent that granted the rent can bee taken vpon the Gleebe that belongeth to the Gleebe of the other Patron to make the same subiect to the charge in perpetuitie for that that hee confirmed not But if the Mannor of Dale bee holden of the Mannor of Sale and to the Mannor of Dale is an Advowson appendant and that the Mannor of Dale hath Escheated to the Mannor of Sale so that the Demeanes of the one is become parcell of the Demeanes of the other yet the Advowson shall be still said appendant to the Mannor of Dale as it was at the first And the Mannor of Dale shall continue still in reputation â— Mannor in respect of such things as are appendant therevnto The moitie of an Advowson may bee appendant to a Mannor or parcell of a Mannor Also in the pleading of a case in Ed. 6. by Dyer it appeareth that one fourth part of an Advowson was alledged to be appendant to the one moitie of a Mannor and another fourth part of the same Advowson was appendant to the other moitie of the same Mannor and the other two parts were in grosse yet neuerthelesse an Advowson in euery such or the like cases cannot be said to be diuided properly for that that it is entyre if you respect the presentation and not the right of Patronage For if a man hath an Advowson and giueth one part thereof to A. and the other part to B. one third part to C. yet the Advowson remaineth entyre amongst them and if any of them disturbe his companions they are without remedy for that they ought to ioyne in a Quare Impedit because the presentation is a parsonall thing and entyre wherein they ought to agree but seeke how they can seuer in these causes in a writ of Advowson Moreouer as touching the right of Patronage if one bring a writ of right of Advowson and the tenant pleadeth that the demandant is seisied of one sixt part or of some one part of the Advowson the entyre writ shall abate notwithstanding if it be in barre but for parcell because cause the Advowson is entyre and not seuerall by reason wherof the demandant cannot abridge his demand And as in the â—ases aforesaid it hath appeared that â—â— Advowson of a Church may bee ap 〈…〉 â—o a Mâ—nnor in like manner may the 〈…〉 wson of a Priorie bee appendant to a 〈…〉 LECT 6. To what things an Advowson may bee appendant secondarily IN the Lectures aforesaid was shewed to what sort of Inheritances an Advowson may bee appendant originally Now it remaineth â—o show to what things it may bee appendant secondarily An Advowson therefore cannot bee appendant to one Acre of land or two acres but only to such parcels of land as haue beene parcell of a Mannor or parcell of any Earldome Castle or such like Inheritance to which an Advowson may bee appendant originally But in what order the same may bee appendant to one Acre let vs consider some bee of opinion that if a man be seisied of a Mannor to which an Advowson is appendant giueth certaine acres of the same Mannor vna cum Advocatione to another in such case the Advowson shall not passe to the grantee vnlesse the same be by Deed and so the same shall be appendant to the same Acres So likewise some hold opinion that if a man be seisied of a Mannor to which an Advowson is appendant in right of his wife or Ioyntly with his wife and maketh a seofement in fee of certaine acres parcell of the demeanes of the same Mannor vna cum Advocatione and dieth that the wife notwithstanding this may present to the Advowson before she recontinue the same acres by Cui in vita because as they thinke the same Advowson is not appendant to the same Acres and such alienation is not but during the life of the Husband Neuerthelesse I doe not perceiue any great reason why the Law should be so in such a case for if a tenant in tayle of a Mannor to which an Advowson is appendant aliene some of the same Acres parcell of the Mannor together with the Advowson although it bee without Deed notwithstanding it is appendant to the Acres and cannot be recontinued but by Formedon to be brought for the same Acres which case in reason being like to the Formedon of the Acres and Advowson aliened by the husband I know not any difference of Law that should bee betweene them And therefore if a man
bee seisied of a Mannor to which an Advowson is appendant and make a lease for life of the same Mannor vna cum advocatione if the lessor enter into the same Acre of land for forfeiture hee hath recontinued the Advowson as appendant to the same Acre An Advowson cannot Originally bee appendant to a Messuage but Secondarily it may therefore if an Advowson be appendant to a parcell of land which was sometimes part of the demesnes of a Mannor and suchlike if a Messuage be built vpon the same parcell of land the Advowson shall be appendant to the same Messuage and if the same Messuage fall or bee pulled downe the same Advowson shall bee againe appendant to the Soyle as it was before So likewise an Advowson may by a secondary meanes be appendant to a Rectory for Vicaridges being not first erected in as much as the Substitute cannot bee before the principall but all at the beginning were Parsonages of the which Vicaridges were deriued and that for the most part by the reason of many Impropriations of benefices to the houses of Religion and Spiritual corporations which were not of themselues in all points fit for the function and cure of soules The reason is because that the Advowson of a Vicaridge should bee alwayes appendant to the Rectory of a Parsonage so that he that is Parson or Persona impersona as they call him of this Church is of common right Patron of the Vicaridge of the same Church except some other seuerall ordinance at the beginning of the endowment of the same Vicaridge were made to the contrary And therefore by the graunt of a Parsonage with all the hereditaments thereto belonging the Advowson of a Vicaridge passeth to the Grantee In the same manner it should be if the Vicaridge were endowed so there be a Paâ—son and a Vicar both presented into one Church as by the Law there may well be but if the Vicaridge become voyd and hee that is Parson hauing the Advowson of the Vicaridge as of common right hee ought present one to the same Vicaridge by the name of Parson who is admitted and Instituted accordingly by such presentation hath the same Vicaridge lost the aforesaid name and is becommed a Parsonage tamen querae if the first Parsonage remaine and if one of those parsonages if they both continue be appendant to the other but it seemeth by the Booke of 11. H. 6. that there should be but one Parsonage and the Vicaridge extinct An Advowson of a Church or Chappell cannot originally bee appendant to another Church or Chappell for that that things of one nature cannot be originally appendant each to other But notwithstanding secondarily the Advowson of a Church or Chappell may be appendant to another Church or Chappell As if the Advowson of a Church or Chappell bee appendant to one Acre of land that was sometimes parcell of a Mannor or such like and after a Church or Chappell bee built vpon it the last new erected Church shall bee appendant to the aforesaid Church An Advowson may be amortified to a Church or Chappell and if it be recouered and lost by Default the parson thereof may haue a Writ of right And an Advowson may be parcell and part of a Deanâ—rie and if the same bee in any free-Chappell of the King if the Deane be impleaded he may of this haue ayde of the King And thus much concerning Inheritances to which an Advowson may be appendant LECT 7. In what manner Advowsons are appendant to a Mannor NOw it resteth that I determine in what manner Advowsons are appendant And first of all if the Advowson be part or parcell of the Inheritance to which it is appendant and whether it bee onely accident or incident thereunto Secondly if an Advowson be appendant to a Mannor that consisteth of Demeanes and seruices in respect both of the demeanes and seruices or if it shall be said appendant to a Mannor in respect onely of the Demesnes in as much as the Demesnes are one corporall Inheritance and such part of the Mannor as onely lyeth in manuell occupation 1 As concerning the first the Authorities of our Bookes are diueisly deuided some tending to one effect and some to another our best course therefore is to consider the Arguments and to giue censure with that which seemeth most agreeable with Law Some hold that an Advowson appendant to a Mannor and the like is eyther part or parcell of a Mannor Honour c. or other Inheritance to which it is appendant And they ground themselues vpon the authorities of 43 R. 3. 22. a. b. where it was adjudged that the grant that King H. the 3. made to Thenel Marshall of a Mannor to which an Advowson was appendant without thesewords cum pertinentijs and without any mention of the Advowson yet notwithstanding the Advowson passed in case of the King before the st 〈…〉 ce of Praerogativa Regis Cap. 15. And so likewise it is in the case of a common parson at this day although in the 8 H. 7. 4 the opinion of some others in the 5 H. 7. 38 b. be against it vpon which they inferre that an Advowson is parcell of a Mannor for so expressely is the opinion of others in the same booke of 5. H. 7. 38. b. Secondly in the 9 H. 6. 28. b. and in the 38. H. 6 33 a. in the Abbeyes of Scyons case the difference is agreed for Law that if the King be seisied of a Mannor to which an Advowson is appendant and granteth the same Mannor and in the grant the words of the Pattent are dedimus concessimus the Mannor of D. expressing not the Advowson in the clause of the grant if afterward in the habendum there bee habendum cum aduocatione of the Church of D. the Advowson passeth by such grant although it be not comprehended in the clause of the grant but if the King grant the Mannor of D. to which no Advowson is appendant habendum cum aduacatione Ecclesiae de S. this Advowson passeth not for that that it is mentioneâ— after the grant the reason of which difference they thinke to be because in the first case the aforesaid Advowson appendant is parcell of the Mannor which is not so in the last case in the 8. H. 7. 3. b. and likewise in the 10. H. 7. 19. a. it is said that an Advowson appendant is a compound thing to the composition whereof diuers things are requisite alâ— which things commixt make the Mannor and euery of them is parcell thereof for as Rent cannot be Land so Land cannot bee an Advowson nec econuerso yet euery of these things of diuers natures make the Mannor and are parcell of the Mannor saith Keeble And if a man demand a Mannor by his Writ and an Advowson is appendant thereunto hee ought to make an exception of the Advowson which seemeth to prooue
principale But at this day the Law is contrary so that if a man be seisie of a Mannor and the entrie of the Diseissee being lawfull the Advowson becommeth voyde the Disseissee may present to the Church before his entry into his Mannor but if the Disseisor bee seisie of a Mannor by disseisin to which an Advowson is appendant and the Church becomes voyd so that the disseisor presenteth whereupon the Clarke is admitted Instituted and Inducted it seemeth that the disseisee in this case shall not haue his Quare Impedit to recouer his presentation vnlesse he first enter into the Mannor to which the Advowson was appendant and though hee enter yet he shall be driuen to his action Yet if a man be seisie of a Mannor to which an Advowson is appendant and bee disseisied of the same Mannor and the Church becomes void and the Disseisor presenteth one that is admitted Instituted and Inducted and so continueth parson sometime after if afterward the Advowson become voide now is not the Advowson so gained by such vsurpation but if that I that was deseisied enter into the Mannor I may againe present to the Advowson because the former vsurpation was a meane betweene the disseisin and the reentrie by which reentrie the Disseisors estate as well in the Advowson as in the Mannor is clearely defeated But it is otherwise of an Advowson in grosse in which case the Patron shall be driuen to his Writ of right so likewise if I be seisie of a Mannor to which an Advowson is appendant and afterward the Church becomes voyd and I present and be disturbed and after I be deseisied of the Mannor here I shall bring my Quare Impedit and recover my presentation before I enter into the same Mannor And so much is said where the entrie of him that hath right is lawfull in the principall but where the entrie is not lawfull there he shall not present to the Advowson vnlesse recontinuing the principall and therefore if a man bee seisied of a Mannor to which an Advowson is appendant and be disseisied if the Disseisor dye seisied and the Church become voyd the dissiessee shall not present to the Church vnlesse hee first recover the Mannor If Tenant in tayle bee seisied of a Mannor to which an Advowson is appendant and maketh discontinuance of the same Mannor and after dyeth if the Church become voyd the issue in taile shall not present therevnto vntill hee hath recovered the Mannor by Formedon to which the Advowson was appendant Likewise if a man bee seisied of a Mannor in right of his wife c. and both discontinueth the Mannor with the Advowson and the Husband dyeth if afterward the Church become voyde the wife shall not present vntill shee hath recontinued the Mannor by Cui in vita but forasmuch as the Statute of the 30. H. 8. 28. giueth in such case power to the wife or her heires to enter into the Land so aliened The Law at this present day must of necessity bee taken that the Wife or her heires in the former case may present without recontinuance of the Mannor for that that the same Statute ordained then that such alienation c. Feoffement act or acts made or done by the Husband shall not bee nor make in any manner any discontinuance thereof or be preiudiciall to her or her heires The former rule hath an exception in this manner yet notwithstanding the entrie being not lawfull in the principall yet if the Advowson be severed and in any manner cannot bee recovered then may the party wronged notwithstanding present without recontinuance of the principall As if a man before the Statute of the 32. H. 8. 28. be seisied of a Mannor in right of his Wife to which an Advowson is appendant and giueth to an Estranger the same Mannor or parcell thereof with the Advowson in â—eâ— and dyeth afterward the Church becommeth voyde and the Estranger presenteth and then Alleneth the Land to another in see sauing the Advowson and now the Church becomes voyde the wife in such case may present to the Church without any recontinuance of the Land discontinued to which the Advowson was appendant Quare therefore in the 5. H. 7. 36 where it is holden that if there be tenant in tayle of a Mannor to which there is an Advowson appendant and he alieneth the Mannor with the Advowson in â—ee and the Discontinued granteth the Advowson to another in Feâ— severing it from the Mannor the issue in tayle shall not present vntill such time as hee hath recontinued the Mannor neuerthelesse if a remitter bee of the principall hee that is so remitted may present to the Advowson the next time that it becommeth voyd notwithstanding any vsurpation thereof before had For if Tenant in tayle bee of a Mannor to which an Advowson is appendant and discontinueth the same and the Discontinuee granteth the Advowson to another in fee and afterward reenfeofeth the tenant in tayle of the Mannor who dyeth seysied of the Mannor now his heyre shall present to the Advowson when it becommeth voyde and if hee be disturbed hee shall haue a Quare Impedit because hee is remitted to the Mannor and hath not any remedie otherwise to come to the Advowson But vpon the other part if tenant in tayle bee seisie of a Mannor to which an Advowson is appendant and discontinueth the same and afterward the Church becomes voyde and the tenant in tayle presenteth to the Church by vsurpation it seemeth by the better opinion of the 5. H. 7. 36. 38. that hee is not remitted to the Advowson for that that his ancient right therevnto was as to an Advowson appendant but now it is in grosse But if the tenant in tayle had aliened the same to an Estranger in fee and after dyeth notwithstanding that hee take the rents and services that afterward discendeth to the Issue yet is the issue therevnto remitted because such rents and services are parcell of the Mannor and not appendant And so it was likewise before the said Statute of 3a H. 8. if a man bee seisie of a Mannor which is an Advowson appendant in right of his wife and discontinueth the same Mannor and after the Church becomes void and he presenteth to the Church by vsurpation and dyeth hauing issue by the wife and the wife also dyeth the issue in this case is not remitted to the Advowson for the reasons before shewed hereof it enâ—ueth likewise as before partly hath appeared that in all cases where there is a Mannor to which an Advowson is appendant and the Mannor with the Advowson is aliened with wrongfull conueyance and the entrye of him that hath right is not taken away there may hee present to the Church without recontinuance of the Mannor to which the Advowson is appendant and therefore if a man make a lease for life of a Mannor to which an Advowson is appendant if the lessee for life make a Feofment in fee of the
nothing but giue licence to the person to charge his Rectory with an Anuitie this shall bee a good grant to Charge the Church in perpetuitie For that that it is not to any other free tenants a Charge but to the parson because neither the patron nor the Ordinarie can haue the Church themselues but onely to dispose and bestow the same vpon some other neuertheles such assent ought to be by writing LECT 3. The seuerall Intrests of the Patron and Ordinarie and what it is IN the Lecture next before I haue â—et forth to you the right that both the Patron and Ordinarie hath joyntly to intermeddle in the Church Now it remains likewise that I declare their seuerall Interests Therefore at this present I intend to deliuer somthing touching the Collateral Intrest of the Patron sole and after to examine what manner of Inheritance an Advowson is and so to refetre the Intrest of the Ordinary sole to a more conuenient place when as we shall come to speake of Admission and Institution What Collaterall Intrest alone the Patron hath in the Church may in brieâ—e thus be decyphered first by the Common Law before the Statute of Westminster second as hee ought by the opinion of some men to bring his writ of Advowson of the fift part or any lesse part of the Tythâ—s and oblations of the Church in any suite of Iudicauit attempted against the Presentee or Incumbent that hath sued in the Spirituall Court for the Recouerie of the same and hath caused the Patronage in this respect to come into question or as some men thinke he might haue had his Writ of Heres as a Precipe quod reddat advocationem quinque acrarum terrae or one acre of Land and such like For which cause the Statute was made to be a restraint for bringing the same writ of any lesse part then of the fourth part of their Tithes so that the Statute in this behalfe was but a restraint of the Common Law Which argueth that the comparing of the Rectorie tendeth Collaterally to be an impeachment and preiudice to the Patron himselfe and so importeth a Collaterall Intrest that the Patron hath to the Church Againe by the graunt of the Church the Advowson passeth wherefore Herle sayd in the first part of Ed. 3. That it was not long since when men knew not what an Advowson was nor meant but by the Graunt of the Church they thought the Advowson to be sufficiently conueyed in the Law For said hee when they purposed to assure an Advowson their Charter specified it in the guiâ—â— of the Church Moreouer the King being Patron hath often ratified and confirmed the estate of the Incumbent in a Rectorie that an vsurper had presented by meanes whereof hee cannot remoue the same Incumbent vnlesse for some cause hee repeale his Charter of confirmation Notwithstanding if the King recouer by a Quare Imp and after confirmeth the estate of the Incumbent that the vsurper presented by meanes whereof hee cannot be remoued at the next Avoidance the King shall present for the Judgement giuen for him was not at any time executed which also proueth the Collaterall Intrest that the Patron hath to the Church for no parsons can lawfully confirme but such as haue right to the thing confirmed Ancient Bookes haue held and that not without reason That an Advowson hath such an affinitie with the Church it selfe to which it is granted and to which it is a Collaterall Intrest as hath beene sayd that it should passe by Liuerie of seism made at the Ring of the Doore of the Church and although by such meanes it passe not at this day being meerely a thing that lyeth in Graunt yet the same proueth the Collaterall Intrest of the Patron to the Church for this opinion holden in the Bookes is granted for the like reasons In a Writ of right of Advowson the Parson shall bee summoned in the Church or at the doore of the Church And if a villeine purchase an Advowson in grosse Littleton saith full of an Incumbent the Lord of the same villein may come to the same Church and their claime and the Advowson shall be in him All which things added to the former sufficiently proueth the Collaterall Intrest that the Patron hath to the Church LECT 4. What manner of Inheritance an Advowson is lecture 4 WEE are now to consider what manner of Inheritance an Advowson is wherfore let vs consider that euery Inheritance is eyther Hereditas Corporata or Incorporata Hereditas corporata is a Meadow Messuage Land pasture Rents c. that hath substance in themselues and may continue for euer Hereditas incorporata is Advowsons Villeins Wayes Commons Courts Piscaries c. which are and may be appendant or appurtenant to Inheritances Corporate An Advowson therefore is Incorporate of which a man may be Seisied though not of Demesne yet as of Fee and as of right And although great Disputation haue beene in our bookes whether an Advowson may bee holden or lye in tenure yet the most authorities concurreth and are that any Advowson either in grosse or appendant lyeth in tenure aswell of a Common person as of the King For a Cessauit lyeth thereof and some haue holden that the Lord of whom it was holden may distreine either in the Church yard or in the Gleebe the beasts of the Patron onely if they happen to be there found 33. H. 6. Godred contrarie but though the law be that there cannot bee taken any distresse yet the same makes not any impeachment of the tenure and being parcell of a Mannor or appendant to it it may bee holden as some bookes are pro particula illa Therefore it is holden and said that an Advowson is a tenement and therefore whereas the King hath giuen licence to an Abbot to amortise lands and tenements to such a value by force whereof he purchaseth an Advowson and this was holden good sufficiently pursuing this licence and therefore in the booke an issue was taken if the same Advowson were holden in Capitie and therfore if a man grant a Ward or Omniaterra tenementa that he hath by reason of his Ward if there be an Advowson holden of the Lord being guardian the same passeth to the grantee by the words of Omniaterras tenementa Of an Advowson a precipe quod reddat lyeth very well and a writ of Dower shall bee maintained of the same by the wiues of such as haue such inheritance therein as giueth a dower as before hath beene said and so the husband of her that hath the'nheritance in it shall be tenant by the Courtesie although there neuer were had any presentation by the wise to it But yet there shall not be any discent thereof from the Brother to the Sister of the entyre blood by the maxime of possessio fratris c. But the same shall discend to the brother of the halfe
blood vnlesse the first haue presented to it in his life time but if hee haue presented in his life-time then it shall discend to the next heire of the entire blood In Advowson is an inheritance and cannot be deuided into parts or parcels for in a writ of right of Advouson if the tenant say that the demaundant is seased of the sixt part of the Advowson this shall abate the whole writ and yet part thereof may be in some sort considered for there is an vsuall difference taken betweene Advocatio medietatis Ecclesiae and medietas Advotionis Ecclesiae For Advocatio medietatis Ecclesiae is where two Patrons be and euery of them hauing right to present a seuerall Incumbent to the Bishop to be Admitted into one and the same Church for diuers may be seuerall parsons and haue care of Soules in one Parish and such Advowson is a like in euery of those Patrons but euery of their presentments is to the moitie of the same Church and therefore it is called Advocatio medietatis Ecclesiae or as the cause salleth out aduocatio tertiae partis Ecclesiae and the like But Medietas aduocationis Ecclesiae is after pertition betweene perceners for although the Advowson bee entire amongst them yet any of them being disturbed to present at his turne shal haue the writ of Medietate or of Tertia or of Quarta parte Advocationis Ecclesiae as the case lyeth Also if two Patrons of seuerall Churches make vnion or confederation of their Churches by the assent of all those whose consent is requisite the patronage of euery of them shall not be but medietas Advocationis Ecclesiae because but one Incumbent is onely in this case to be presented and not Advocatio medietatis Ecclesiae And this Difference is onely taken and obserued in the writ of Right which is altogether grounded vpon the right of Patronage But in the Quare Impedit which is onely to recouer Damages no such diuersitie is considered but the writ is generall Presentare ad Ecclesiam Lastly it is to be considered what temporall profits value or Commoditie this kind of Inheritance is reputed to be of It is not by the Law of God to be bestowed vpon any Incumbent for any need or price but onely reserued for such as are worthy thereof And therefore it is said * That Guardian in Socage of an Infant shall not present to any Aduowson because such presentation is not to bee bestowed for price for that that such Guardian cannot account for the same yet neuerthelesse because the Patron thereby may aduance his friend it hath beene often esteemed for Assets in Formedon And as the value thereof may come in question as in a writ of right of Advowson where the tenant avoucheâ—h and the vouchee looseth the tenant shall recouer in value against the vouchee for euery Marke that the Church is worth per Annum xij d. So that the thing which of it selfe is not valuable is by a secondarie meanes made and esteemed valuable because that otherwise this mischiefe should ensue thereof which should be a losse without recompence 1. By this it appeareth that it is an Inheritance Incorporate 2. That it lyeth in Tenure 3. That it passeth by the name of Tenement 4. That a precipi quod reddat lyeth thereof 5. That both tenant in Dower and tenant by the courtesie and in some case a Possessio â—ratris may bee thereof 6. That it is entire by nature though by accidentall meanes otherwise and in some respect deuisable 7. Though it be bestowed gratis yet it is valuable for which it is a benefit to aduance a friend and for being iniured therein we shall recouer damages LECT 5. The word Right and the word Advowson explained and to what Inheritance an Advowson may bee appeudant originally IT resteth at this present for the more ample explication of this word Right whereas in defining an Advowson wee say it â—â—keth a Râ—gâ—â— to set forth the dâ—â—â—sions of Advowsons and to prosecute euery part deuided with a â—ull Discourse that thereby what manner of right and inheritance an Advowson is may be the better perceiued Advowsons therefore are either appendant or in grosse or part appendant part in grosse An Advowson appendant is a right of Patronage appertaining to some corporall Inheritance so that hee that hath the same Inheritance is thereby also entituled to haue the other as annexed to the same For an Advowson passeth alwaies with the Inheritance to which it is appendant vnlesse there bee expresse nomination onely by these words Vna cum pertinentijs except it bee in case of the King where the Statute De prerogatiua Regis cap. 15. prouideth expresse words to make the same to passe The originall of Advowsons appendant at the beginning must be in this manner sythencâ— Patronages were wonne and gotten as before hath beene declared and that either ratione fundatiâ—nis dotationis or fundi were as it seemeth by all conformity of reason the originall foundations of Advowsons appendant for when Mannors were created either the land vpon which the Church was built was land parcell of the Mannor or honor to which it is appendant and he that was Donor thereof gaue the same to build the Church vpon and that the Advowson of the same Church so built should bee appendant to the same Mannor which is ratione fundi Or hee that was owner of the same Mannor or of any such corporall Inheritance endowed the same Church with parcell of the land of the same Mannor honor or such like corporall Inheritance and gaue the same to the Gleebe of such Chuch vpon which the Advowson by ordinance of the Ordinary and by the consent and agreement of all others whose consents were requisite in this behalfe was at the beginning appointed to be appendant to such Mannor Honor or other corporall Inheritance in recompence of such liuely hood and dotation bestowed vpon the Church And hereof it ensueth that if at any time the Church bee desolued the Gleebe and land vpon which the Church was built shall returne and escheate to him or them from whom it was deriued and deduced As in like case vpon the dissolution of an Abbey the same shall not returne to the sounder of common right vnlesse some other ordinance be made to encounter the same 1. Therefore to auoyd confusion in the consideration of Advowsons appendant let vs first see to what sort of Inheritance Advowsons may be properly appendant 2 Secondly in what manner it is appendant that is if it bee part or parcell of the Inheritance to which it is appendant or if as accident or necessarie thereunto 3 How it may bee seuered from his principall and againe by what meanes it may bee therevnto recontinued againe As to the first it may be appendant properly and originally to things that are onely Inheritances corporall that are compound As to an Honour Earledome or
that an Advowson is parcell of a Mannor vpon the other part those which affirme that an Advowson is not parcell but onely appendant to the Mannor denyeth that an Advowson lyeth in Tenure for that that only the principall thing is holden and not the thing appendant to such principall As Leates Coâ—â—ts Estreates Wayâ—es and the like for said they if an Advowson appendant be by grant seuered from the Mannor it is holden by such and the same seruices as it was holden by before for that that if the Advowson be seuered it should be holden pro perticula theÌ„ the Services should be encreased and so double Services should be due for one thing for so he should haue the entyre seruices for the Mannor and also Service for the Advowson beeing seuered which is repugnant to reason In this varietie of opinions I thinke it were most conformable to reason to say that an Advowson is not part nor parcell of a Mannor but rather appendent to a Mannor for the better entendment whereof the Law of England calleth those sorts of Inheritances which are annexed to others and what the Logicians call Aduncta by these names that is to say Incidents appurtenants appendants and regardants of which termes of Law Regardant is properly of Villeines and the word Appendant of a Common or an Advowson of which two an Advowson is separable but a common appendant is not in any case separable for none can haue common appendant but hee onely that hath the Land to which the common appendant is appendant The other two words Incidents and Appurtenances may generally bee affirmed of all those sorts of Inheritances that may in any manner bee annexed to other things for so a Mannor with his appurtenances may be intended of Advowsons Commons Villeines Waifes Estrayes and the like which are said to be Appurtenances to a Mannor likewise the word Appurtenant may be applyed to a Court Messuage or Gardein that are said to be appurtenant to the Messuage the word incident properly signifieth those things annexed which are not knowne by the precedent names of appurtenants or appendants and yet are notwithstanding annexed to other Inheritances and in such sort a Court baron is incident to a Manor a Court of Pipowders to a faire fealtie to Homage homage to Escuage so likewise a Corrody is incident to a Foundership and againe of those some are seuerable as the Corrodie from the Foundership some are inseuerable as the Court-barron from the Mannor except onely in case of the King who hath power to seuer them But that is called a part or parcell which is a portion and required to some composition of entyre and compound things as the Demeanes and services are part of a Mannor the Gleebe and the Tythes are part of the Rectory so that these are not to be called Incidents Appendants Appurtenants but parts and portions of these compound things of which they are said to be part parcell or portions and are required necessarily to the framing of such entyre thing of which they are parts and portions hereof it followeth that an Advowson appendant is not any part parcell or portion of a Mannor no more then a common is part of that thing to which it is appendant so that the word it selfe of an Advowson appendant is sufficient to set forth and declare the same to bee no part but appendant onely as the words importeth Wherfâ—re the first reason of the aduerse part may thus be answered The bookes before mentioned namely 43. E. 3. 22. a 45. E. 3. 1â— b. 22. H. 6 33. a which are to this effect that an Advowson appendant may passe by the grant of a Mannor without saying cum pertinentijs in the case of a Common parson and so likewise in the case of the King before the Statute of prerogatiua Regis proueth not that an Advowson is part or parcell â—f a Mannor for this being a thing appendant may aswell passe with the words cum pertinentijs as the things that are parts or portions of the same entyre thing passeth For if a man grant common of Estouers to be burnt in such a Mannor of the grantee by the grant of the Mannor this common passeth without the words cum pertinentijs for by the feofment made of the Mannor without deed all appurtenances pasle by Finchdens opinion as Fitzh abridgeth it although it be not in the report at large and for the argument of those in the time of Hen. the 7. before remembred wee say for that that an Advowson appendant passeth by the grant of the Mannor it is no good consequence for the reason aforesaid The second reason answereth the difference in H. 6. where the Advowson is granted before the habendum and where not that it is not any proofe that the Advowson appendant is parcell of the Mannor for Prysot saith that things in grosse or seuerall being named after the habendum cannot passe with the first things specified in the clause of the Graunt but things appendant or appurtenant to the premisses of the Grant may very well passe although the appurtenants be specified after the habendum As concerning the exception of an Advowson appendant to be made in the Demaund of a Mannor the same is not any proofe that the Advowson is part of the Mannor for the opinion of Stone is that by the Demesnes of a Mannor or by the Demesnes of the moitie of a Mannor as the case is there without the words cum pertinentijs the Advowson appendant cannot be recouered LECT 8. If an Advowson appendant that consists of Demesnes and Seruices shall bee appendant in respect of the Demesnes onely or in respect of the Demesnes and Seruices AT this present it remaineth to determine if an Advowson appendant to a Mannor is appendant in respect that it consiseth of Demesnes and Seruices or if it shal bee appendant to a Mannor in respect of the Demesnes onely in as much as the Demesnes are one corporall Inheritance and such part of the Mannor as onely lyeth in manuell occupation This question was of late time largely disputed at the last vpon graund deliberation learnedly determined in the Common Pleas in a Quare Impedit betweene Gyles Long Plaâ—â—â—ffe and one Hening Paâ—â—on the Byshop of Glocester as Ordinarie and Hadler as Clarke and the same is there among the Rolles of Pasche 31. El. Rot. 2024. which I haue set heere necessarily in briefe and being thus A Feofement in Fee was made of the Mannor of Frembillet and the Advowson thereto belonging and Liuery of Seisin was made in the Demesnes in anno 7. El. and after in anno 17. of her Reigne the Advowson was granted to one Ranger and after in the 25. El. one Boyter being â—enant of the same Mannor attorned to the Feoffee then the Church became voyd and if the Feoffee or the Grantee should present was the question for the