Rogers v. Hol led, 2 Black. R. 1040. 1 Bro. Parl. Ca. 117. 1 Inst. 244. a. Institution. 1 Inst. 344. a. Wats. 156. Induction. 1 Burn's Ecc. Law, 156. in which the benefice is situated, requesting him to admit to the church the person presented. 3. A presentation, though duly made in all respects, may be revoked or varied. This was always held with respect to the king, but was doubted as to lay patrons. It appears, however, to be now fully settled that a lay patron may revoke his presentation at any time. Sir W. Blackstone has observed, that a presentation was certainly revocable by the principles of the common law, because it vested no right in any one, not even in the clerk presented; for if the clerk had a right, the law would give him a remedy to recover it when invaded: There was, however, no species of common law action open or competent to a clerk, to recover a presentation, when obstructed, but to the patron only. And it was said arguendo, in the House of Lords, that a presentation conferred no interest whatever. 4. When the ordinary declares that he approves of the presentee, as a fit person to serve the church to which he is presented; the clerk is said to be admitted. 5. Institution is the commitment to the clerk, by the ordinary, of the cure of souls. The form and manner of it is thus; the clerk kneels before the ordinary, whilst he reads the words of the institution, out of a written instrument drawn up for this purpose, with the episcopal seal appendant to it, which the clerk holds in his hand during the ceremony. 6. The act of presentation only gives the clerk a right ad rem, but institution gives him a right in re: therefore the clerk, when instituted, may enter upon the glebe, and take the tithes; though he cannot yet sue for them. 7. After institution given, the ordinary issues his mandate for induction, directed to him who has the power to induct, of common right. This person is ge nerally the archdeacon of the diocese; though others, by prescription or composition, may induct. 8. The induction is to be made according to the tenor and language of the mandate, by investing the clerk with full possession of all the profits belonging to the church. Accordingly the person who inducts usually takes the clerk by the hand, and lays it upon the ring of the church door; or if the church is in ruins, then upon the wall of the church or church-yard, and says to this effect," By virtue of this mandate I do induct you into the real, actual, and corporeal possession of the church of C. with all the rights, profits, and appurtenances thereunto belonging." After which the inductor opens the door, and puts the clerk into the church, who usually tolls the bell, to make his induction public, and known to the parishioners. After this the inductor endorses a certificate of the induction on the mandate, which is witnessed by the persons present. 9. It has been stated that in the case of an advowson donative, neither presentation, institution, or induction, are necessary. Wats. c. 12. 10. Presentation must be made within six calendar of Lapse. months after the death of the last incumbent, otherwise the right to present accrues or lapses to the ordinary. It being for the interest of religion that the church should be provided with an officiating minister, the law has therefore given this right of lapse, in order to quicken the patron, who might otherwise, by suffering the church to remain vacant, avoid paying his ecclesiastical dues, and thereby frustrate the pious intentions of the founder. 11. As the computation of time concerns the church, 2 Inst. 361. it is made according to the rules of the canon law, that is by the calendar, for one half year; not counting twentyeight days to the month. And the day on which the church becomes void is not to be taken in the account. 12. As to the time from which the six months are to commence, the rule of the canon law in all cases was, that the six months should be reckoned, not from the time of the voidance, but from the time when the patron 2Burn's Ecc. Law, 327. Idem, 329. Idem, 328. Idem, 329. Idem. 115. Wats. 107. Who may present. had notice of the voidance. As if the incumbent dies beyond sea, the six months shall not be counted from the time of his death, but from the time of the patron's knowledge thereof. 13. It has also been held that although no lapse shall incur, if no notice be given; yet if in such a case a stranger presents, and his clerk is instituted and inducted, and the patron gives no disturbance within six months, he has no remedy for that turn; because induction is a notorious act of which he is bound to take notice. 14. Where a clerk is refused for want of learning, or on account of his morals, the patron ought to have notice, that he may present another in due time; yet if he neglects to do so, the lapse shall incur from the death or cession of the former incumbent, not from the time of notice. 15. If the clerk be not refused, but the bishop only delays the examination of him, whereby the six months pass, no lapse shall incur; because the church remains void by the bishop's own fault; and he is thereby a disturber. 16. After the church has lapsed to the immediate ordinary, if the patron presents before the ordinary has filled the church, the ordinary ought to receive his clerk. For lapse to the ordinary is only an opportunity of filling a trust, viz. of appointing a proper person to supply the living, in the case of the patron's neglect, which being performed by the patron himself, the ordinary can then derive no advantage from it. 17. In the case of an advowson donative no lapse incurs by the non-presentation of the patron, within six months; the ordinary may however compel the patron to present by means of ecclesiastical censures. 18. With respect to the persons capable of exercising the right of presentation, all, those who are sole seised in fee simple, fee tail, or for life, or possessed. of a term for years, of a manor to which an advowson is § 19-23. appendant; or of an advowson in gross; may present to the church. And where a person is entitled to an advowson in right of his wife, he must present in his own name and that of his wife; and not in his own name only, in right of his wife. 29. 19. It has been stated that a man may be tenant by c. 1. § 26. & the curtesy, and a woman tenant in dower of an advowson; in which cases they may present to the church, if it becomes vacant during their lives. Wats. 75. 20. Where a person is seised of an advowson, and 1 Inst. 888. a. the church becomes vacant in his lifetime; if he dies before he has presented, the right of presentation devolves to his executors or administrators, because it is considered as a chattel real. But if the incumbent of a Id. 76. church be also seised in fee of the advowson of the same church, and dies, the right to present will devolve to his heir, and not to his executor; for the avoidance and descent to the heir happening at the same instant; the title of the heir shall be preferred, as the most ancient and worthy. 21. Where a person has a grant of the next presentation to a church, it is considered as a chattel real, which, if not disposed of, will vest in his executors. Smithley v. Chomley, 1 Inst. 89. a. 22. Lord Coke says, a guardian in socage of an Infants. infant seised of a manor to which an advowson is 3 appendant, shall not present to the church; because he can take nothing for the presentation for which he may account to the heir; and therefore the heir shall in that case present of what age soever he be. This doctrine is now fully established; and in the following case it was determined that an infant who was not a year old might nominate or present to a church. 23. Cyrill Arthington conveyed an advowson to trustees, upon trust to present such son of a particular person, as should be capable of taking the same, when the church became void; and if that person had no son qualified to take the living at that time, then in trust to present such person as the grantor, his heirs or 156. Arthington v. assigns, should appoint; and in default of such nomination by the grantor or his assigns, that the trustees should present a person of their own choosing. The grantor died, leaving his son and heir an infant of six months old. The living became vacant; and the person named in the deed having then no son capable of taking the living, the guardian of the son took him in his arms, and guided his pen in making his mark; and made him seal a writing whereby one Hitch was nominated and appointed to the trustees, in order to be presented by them to the living. The trustees supposing the plaintiff, as an infant, unable to make such an appointment, refused to present Mr. Hitch; upon which the infant brought his bill against the trustees, to have them execute their trust in presenting his nominee. It was argued for the defendants that the presentations of clerks to bishops for admission to churches, was an act that required judgment and discretion, which an infant was not master of; and though the law suffered them to present to their own livings, yet it was of necessity, because there was no one else to do it; and if they could not, then a lapse must incur; for a presentation to a living being a thing of no value, and therefore not to be accounted for, a guardian could not have it. Whereas in the present case, if the grantor or his heirs neglected, or were incapable of presenting, the trustees were expressly authorized to present, whose act would be considered as the act of the infant; so that no injury would be done to any body. And though, in cases of evident necessity, equity might square itself by law, yet where no such necessity appeared, reason and common sense ought to prevail; from whence it was inferred that the nomination, being an act requiring discretion and judgment, was void; and the trustees entitled to present their own clerk. On the other side it was contended, that in the case of presentation, as an infant just born might present at law, so the law did not look on it as an act which |