How far exempt from the ordinary's jurisdiction.

heresy the ordinary could not meddle with him, for the parson was privileged in respect to the place; but the patron might by commission examine the matter, and upon cause deprive him. But Powell, J., in the absence of Holt, C. J., took the difference where the suit in the ecclesiastical court is in order to deprivation, and where only for reformation of manners: in the former case the court will prohibit, but not in the latter; and therefore if in this case the spiritual court proceeded to deprivation, the court would prohibit them, but not till then. He said he had known prohibitions denied frequently to suits against parsons of donatives for marrying without licence. And the reporter says, Mr. Mead and Mr. Salkeld both told him that they had known the Chief Justice Holt take the same distinction; that the parson of a donative was liable to the ecclesiastical jurisdiction, as he was a member of the ecclesiastical body, for personal offences, though for matters relating to the church he was exempt; and therefore the spiritual court could not deprive him; but for drunkenness, or preaching heresy, they might censure him. And this (says the reporter) seems to be the better opinion (o).

So in the case of churchwardens. On a libel in the ecclesiastical court for not taking upon him the office of chapelwarden, the defendant pleaded that it was a donative, and thereupon moved for a prohibition. And upon debate, the same was denied; the whole court being of opinion, that though there was a difference as to the incumbent, yet as to the parish officers there was none, for they are the officers of the parish, and not of the patron of the donative (p).

And as to donatives augmented by the governors of Queen Anne's Bounty, it is enacted by the 1 Geo. 1, st. 2, c. 10, s. 4, in substance as follows, that-Whereas the late Queen Anne's Bounty to the poor clergy was intended to extend not only to parsons and vicars who come in by presentation or collation, institution and induction; but likewise to such ministers who come in by donation, or are only stipendiary preachers or curates, most of which are not corporations, nor have a legal succession, and therefore are incapable of taking a grant of conveyance of such perpetual augmentation as is intended by the said bounty; and in many places it would be in the power of the donor, impropriator, parson or vicar to withdraw the allowance which was before paid to the curate or minister serving the

(2) Ld. Raym. 1205.

(p) Castle v. Richardson, Str. 715; 1 Barn. B. R. 5, S. C.

cure; or in case of a chapelry, the incumbent of the mother church might refuse to employ a curate, and officiate there himself and take the benefit of the augmentation, whereby the maintenance of the curate would be sunk instead of being augmented; it is therefore enacted, that all such churches, curacies or chapels, which shall be augmented by the governors of the said bounty, shall be from thenceforth perpetual cures and benefices, and the ministers duly nominated and licensed thereunto shall be in law bodies politic and corporate and have perpetual succession, and be capable to take in perpetuity; and the impropriators or patrons of any augmented churches or donatives, and the rectors and vicars of the mother churches whereunto such augmented curacy or chapel doth appertain, shall be excluded from receiving any profit by such augmentation, and shall pay to the ministers officiating such annual and other pensions and salaries, which by ancient custom or otherwise, of right and not of bounty, they were before obliged to pay.

Sect. 6. And for continuing the succession in such augmented cures, hereby made perpetual cures and benefices, and that the same may be duly and constantly served; if they shall be suffered to remain void for six months, they shall lapse in like manner as presentative livings.

Sect. 14. And all such donatives which at the time of their augmentation are exempt from all ecclesiastical jurisdiction, shall by such augmentation become subject to the visitation and jurisdiction of the bishop of the diocese wherein such donative is.

Sect. 15. No donative shall be augmented without the consent of the patron in writing under his hand and seal.

heir and not

In the case of Repington v. The Governors of Tam- Next donation worth School, a person being seised of the advowson of a goes to the donative, the church in his lifetime becomes void; then he to the exedies, the church being still void. By his will he made the cutor. plaintiff executor, who brought a quare impedit, supposing himself entitled to this turn, as an executor is in the case of a presentative benefice. After two arguments in the Court of Common Pleas, the whole court was clearly of opinion, that the right of donation descended to the heirat-law; and that the executor had no title, which he would have had, if it had been a presentative benefice (q).

It was said in the case of Spratt v. Nicholson (r), that How far of

(q) 2 Wilson, 150; 8 Bing. (r) Godb. 196.

563.

temporal cognizance.

How extinguished.

Included under benefices.

Made subject to bishops by modern acts.

if issue be joined, whether donative or presentative, it shall be tried by a jury at the common law: and elsewhere it is said, that if the patron of a donative being disturbed in collating, recover by quare impedit, the writ shall be directed to the sheriff, to put the clerk in possession (s).

For if the patron of a donative is disturbed in collating his clerk, he may have a quare impedit against the bishop and the disturber; but the declaration in such a case must be special (t).

It was once holden that a mandamus would lie, to admit or restore the donee (u). But a mandamus is not now granted in this case, the party having a specific remedy by quare impedit. And such an application will be dismissed with costs (x).

Lord Coke says, if the patron of a donative does once present to the ordinary, and his clerk is admitted and instituted, it is now become presentable, and never shall be a donative after. But a presentation to such a donative by a stranger, and admission and institution thereupon, is merely void (y):

But in the case of Ladd v. Widdows, upon motion for a new trial in a quare impedit, wherein the point in issue was, whether the church was donative or presentative, evidence was pleaded of several presentations; and the court, viz., Holt, Chief Justice, and Powell, Justice, held, that though a presentation might destroy an impropriation, yet it could not destroy a donative; because the creation thereof was by letters-patent, whereby land is settled to the parson and his successors, and he to come in by donation (z).

Donatives are expressly defined to be included under the term benefice in the following statutes: 1 & 2 Vict. c. 106, by s. 124; 3 & 4 Vict. c. 86, by s. 2; and 13 & 14 Vict. c. 98, by s. 3.

By 6 & 7 Will. 4, c. 77, s. 10, the ecclesiastical commissioners are empowered, by the ways mentioned in the act, to re-arrange and constitute the territorial limits of dioceses, after the manner recommended by the former commission, and recited in the preamble to the act; and by s. 10, they are expressly authorized to make schemes

(s) Gibs. 820; 14 Hen. 4, 11 b,
cited in Powel v. Milbourne, 3
Wils. 355.

(t) Deg. p. 1, c. 13.
(u) Burrow, Mansf. 1043.

(x) The King v. Bishop of Chester, 1 T. Rep. 396.

(y) 1 Inst. 344; Fitzherbert, Natura Brevium, 35; Cro. Jac. 63. (3) 2 Salk. 541.

subjecting all parishes, churches and chapelries, now subject to any peculiar jurisdiction, to the jurisdiction of the bishop of the diocese in which they are locally situate.

By s. 20, this act was not to affect the jurisdiction of the ecclesiastical courts for one year; and this provision was continued for some years by annual acts. But now by 10 & 11 Vict. c. 98 (an annual act, but annually confirmed), every bishop shall by himself or his officers exercise jurisdiction throughout his diocese; and s. 8 confirms some past acts of jurisdiction. It seems, therefore, that so long as these annual acts continue, all donatives comprised within the territorial limits subjected by any scheme of the ecclesiastical commissioners to the bishop of any diocese are subject to that bishop, and the donees thereof are now visitable and compellable to attend visitations.

How a clerk is put in posses

sion of a benefice.

CHAPTER XI.

ENTRY ON BENEFICE.

SECT. 1.-Advowsons.

2.-Exchange of Advowsons.
3.-Presentations-Who may present.
4.- Circumstances attending Presentations.
5.-Examination by the Ordinary.
6.-Remedies of Patrons.

7.-Admission, Institution and Induction.

IT is now proposed to consider the law which regulates the admission of a clerk to a benefice, and his resignation of it.

The first step must always be the presentation, whatever legal terms be employed, of the clerk to the ordinary for institution into the benefice. The question immediately arises, who has a right to present, or, as it is technically called in our law, the right of advowson?

Foundation of the right of advowson.

SECT. 1.-Advowsons.

We will first consider

1. The general character and nature of an advowson. 2. How it is acquired, how grantable, and how lost. It is very uncertain whether, during the time of the Apostles and the period which immediately succeeded to their administration, any certain rules regulated the distribution of the revenues of the church (a). It appears that, in the very early ages of Christianity, the oblations made in the diocese were usually deposited with the

(a) Lindwood's ProvincialeBingham's Eccles. AntiquitiesVan Espen, Jus Canonicum, tit. Jus Patronatus - Stillingfleet's Discourse of the True Antiquity of London-on the Unreasonableness of Separation-on the Duties and Rights of the Paro

chial Clergy (fol. ed.)-Godolphin's Repert. Canon. Thomassin vetus et nova Ecclesiæ Disciplina, v. 2, p. 72-are the authorities from which the following observations have been for the most part deduced.