required discretion in the patron; nor indeed was it requisite; for infants being supposed to follow the directions of their guardians, might be informed by them, who was a proper person; or if they were not, yet a presentation being only a bare recommendation of a clerk to the bishop, and not an act which gave any interest in the living, and the bishop being absolute 3 Atk. 710. judge of the person's abilities, there did not appear any great reason why an infant might not make it as well as a person of full age; and it was not of necessity that they must present; for though a lapse might incur, yet the presentation of the minor on the next vacancy was reserved, and nothing divested out of him by the bishop's collation; so that as to the infant, it was the same whether the bishops collated or the trustees presented: wherefore they inferred equity ought to be bound to the law, since the case and reason of the thing was alike, for otherwise the greatest confusion and uncertainty would follow.

Lord King said-" An infant of one or two years old may present at law;-then why may they not nominate ? Does the putting a mark and seal to a nomination require more discretion than to a presentation? The guardian is supposed to find a fit person, and the bishop to confirm his choice; and if this is permitted in law, why should a court of equity act otherwise in equitable Decree for the plaintiff.

estates ?"

24. Mr. Hargrave has observed, that though this de- 1 Inst. 89 a. cision may remove all doubts about the legal right of an *.1. infant of the most tender age to present, still it remains to be seen whether the want. of discretion would induce

a court of equity to control the exercise where a presentation was obtained from an infant, without the concurrence of the guardian.

Wilson v.Kirk

25. Where an advowson is held in joint tenancy, all Joint tenants, the joint tenants must join in the presentation. And shaw, 1 Ves. where an advowson is vested in trustees and their heirs

upon trust to present to the church whenever a vacancy

413. 7 Bro.

Parl. Ca, 296.

happens, they are joint tenants; and must therefore, upon any avoidance, all join in the presentation.

26. If there be two joint tenants of an advowson, and one presents without the other, this is no usurpation upon his companion. But if the joint tenant who presented dies, it shall serve for a title in a quare impedit, brought by the survivor: if one joint tenant presents, or if they present severally, the ordinary may either admit, or refuse such a presentee; unless they all join; and after the six months, he may present by lapse.

27. By the common law, where an advowson descends to coparceners, and they cannot agree to present jointly, the eldest sister shall have the first turn, the second the next, and so of the rest, according to their seniority; and this privilege extends, not only to the heirs, but also to the assignees of each coparcener, whether they acquire a portion of the estate by conveyance, or by act of law, as tenant by the curtesy, who shall have the same privilege by presenting in turn, as his wife would have had, if alive.

28. The estate of an advowson descended to two daughters as coparceners; the church became vacant twice in their time, and both joined in presentation; the eldest married, settled her estate in the common way, and died. A vacancy happening, the husband of the eldest, entitled to her estate as tenant by the curtesy, or under the settlement, claimed to present. The question was, whether the alternate turn of presentation among coparceners continued to the grantee ; that is, whether the persons to whom it was conveyed were to be considered as enjoying the same privileges of presenting in turn, as the sisters and parceners, if they had their own estate.

Mr. Baron Clarke was clearly of opinion, upon the authority of the passage in 2 Inst. 365., that the husband of the eldest sister was entitled to the presentation.

29. By the statute Westm. 2. c. 5. it is provided, that where an advowson descends to coparceners, though one present twice, and thereby usurps upon his coheir, yet he that was negligent shall not be barred, but another time shall have his turn to present when it falleth. And Lord Coke, in his comment on 2 Inst. 365. this statute, says," If a stranger usurps in the turn of any of them, this does not put her sister out of possession, in respect of the privity of estate, no more than if one coparcener takes the whole profits."

2 Roll. Ab.346.

30. There were four coparceners of an advowson. Bro. Ab. Tit. The first daughter presented to the first avoidance; Quare Imp. the second daughter to the second; on a third avoidance, a stranger usurped on the third daughter, and presented; the presentee was instituted and inducted, and died. The fourth shall not lose her turn by the third daughter's suffering a stranger to present by usurpation, but shall present to that avoidance.

Vide Barker willes R. 659.

v. Lomax,

1 Hen. Black.

412.

31. Although coparceners make composition to pre- 2 Inst. 365. sent by turns, this being no more than the law doth appoint, expressio eorum quæ tacitè insunt nihil operatur; therefore they remain coparceners of the adVowson, the inheritance of which is not divided.

common.

32. Tenants in common of an advowson must all Tenants in join in presenting to the church. If they present severally, the ordinary may either admit or refuse the clerk; and where he refuses, he may after six months' present by lapse. But if one tenant in common pre- 2 Roll. Ab.372. sents alone, and his clerk is admitted, this will not put

the other out of possession.

partition.

v.

33. It is laid down by Lord Holt that joint tenants Effect of a of an advowson may make partition to present by turns; Ep. Sarum which will divide the inheritance aliquatenus, and create "Philips, separate rights. So that the one shall present in the 535. one turn, and the other in the other; which is a sufficient partition, for partition of the profits is a partition of the thing, where the thing and the profits is the It cannot make two advowsons out of one, but

same.

Mortgagors

it can create distinct rights to present in the several And in this case each of the parties is said to have advocationem medietatis ecclesiæ.

turns.

34. By the statute 7 Ann. c. 18. s. 2. it is enacted, "That if coparceners, or joint tenants, or tenauts in common, be seised of an estate of inheritance in the advowson of any church or vicarage, or other ecclesiastical promotion, and a partition is or shall be made between them, to present by turns, that thereupon every one shall be taken and adjudged to be seised of his or her separate part of the advowson, to present in his or her turn; as if there be two, and they make such partition, each shall be said to be seised, the one of the one moiety to present in the first turn, the other of the other moiety to present in the second turn. In like manner, if there be three, four, or more; every one shall be said to be seised of his or her part, and to present in his or her turn."

35. Where a person mortgages an advowson, the may nominate, legal right to present is transferred to the mortgagee; yet he cannot present a clerk of his own choice, whether the advowson be appendant or in gross. For since the presentation is gratuitous, and the mortgagee canGully v. Selby, not account for any benefit from it, a court of equity will compel him to present the nominee of the mortgagor.

Amhurst v.
Dowling,
2 Vern. 401.

Com. Rep.343.

Mackenzie v.
Robinson,
3 Atk. 559.

Gardiner v. Griffith, 2 P. Wms. 404.

36. A petition was presented on behalf of a mortgagor, that the mortgagee of a naked advowson might accept of his nominee, and present him upon an avoidance, the incumbent being dead. It was insisted for the mortgagee, that as there was a large arrear of interest, he ought to present, if any advantage accrued from it; and the case in Peer Williams was cited, where the plaintiff's father, being possessed of a ninetynine years' term of the advowson of Eckington, made a mortgage thereof to the defendant, and in the mortgage deed was a covenant, that on every avoidance of the church, the mortgagee should present;

in which the Court gave no opinion; but seemed to incline that the mortgagee had a right to present.

Lord Hardwicke was of opinion that the mortgagor ought to nominate; and that it was not presumed any pecuniary advantage was made of a presentation. He observed that these were indifferent securities: but the mortgagee should have considered it before he lent his money; and, instead of bringing a bill of foreclosure, as he had done in this case, should have prayed a sale of the advowson. The next day he mentioned that he was not clear as to this point; and that he had looked into the case of Gardiner v. Griffiths, according to the state of it in the House of Lords, where the decree of Lord King was affirmed, and said that was a mixed case; and that he doubted himself whether a covenant, that the mortgagee should present, as was the case there, was not void; being a stipulation for something more than the principal and interest; and the mortgagee could not account for the presentation.

The question was adjourned for farther consideration to the next day of partitions, when the mortgagee not being able to find any precedent in his favour, gave up the point of presenting; and an order was made that the mortgagor should be at liberty to present, and the mortgagee was obliged to accept of the mortgagor's nominee.

chant.

Ow. 49.

37. It was formerly understood that where a manor, And tenants by to which an advowson was appendant, was extended statute meron a statute merchant; if the church became void dur- Arundel v. Ep. Gloucester, ing the cognizee's estate, he might present to it. But it is to be presumed that if a case of this kind were now to arise, the cognizor of the statute would be allowed to nominate a clerk to the cognizee; by analogy to the case of a mortgage.

38. It has been held that if a patron of a church is And banka bankrupt, and the church becomes void before the Wats. 106.

rupts.