use (g). The ordinary has no jurisdiction over the incumbent except for personal offences (h). As might be expected, the church was greatly dissatisfied with such a condition of impotence, and great struggles were made to abolish the custom of investiture by the patron only (i); and in the reign of Henry the Second the method of institution by the bishop appears to have been first practised. At length the practice grew up of presenting the proposed clerk to the bishop, previously to his institution; this would be necessary when the donee of the living was a layman, and in that case the bishop could exercise the unquestioned right of rejecting him, and by the beginning of the 14th century (k) the Pope and the bishops had succeeded in establishing their power of refusal in most cases, even where the clerk was already in holy orders, and about the same time the doctrine of lapse was introduced, entitling the ordinary to collate a clerk to the benefice if the patron neglected to present one within six months after the vacancy occurred. So that ultimately, in parochial churches at least, the practice of presentation to the bishop became almost universal. Some churches however survived this innovation, and particularly those which were closely connected with great family mansions. In these the bishop or ordinary is said to have power as to the parson, but not as to the place (1).

Presentative advowson.

Moreover, some were in later times created by special license of the crown; the few donative advowsons which now remain are mostly of this kind (m). By far the greater part of all advowsons now belong to the [*94] second class called presentative, which, as will appear from what has been said, are where the patron has a right to present a clerk to the bishop, and subject to the bishop finding him canonically qualified, to require that he be instituted and inducted into the church.

A donative advowson, not specially created so by letters patent, becomes as the law now stands presentative, if the patron once waives the peculiar right of investiture which he possesses. If he once presents to the bishop, and his clerk is admitted and instituted, the right of investiture is lost (n). And if a donative advowson receive augmentation from Queen Anne's bounty under the act 1 Geo. 1, st. 2, c. 10, it loses its special character and becomes presentative. Since an advowson may, like land, be held for various interests of different duration, as for years, or for life, or for ever, the person who would, if it were land, be entitled to the actual possession of the land, at the time the church falls vacant, has the right to present to the church for that turn; when the advowson belongs to several persons in common, as for instance coparceners, they present in turn, the eldest first (o), if they be joint tenants they must concur in

(g) Fairchild v. Gaire, Yelv. 61; 2 Roll. Rep.

(h) Co. Litt. 344; Walter v. Gunner, 1 Hagg. 319; Colefatt v. Newcomb, Ld. Raym. 1205.

(2) See a letter from Pope Alexander III. to Becket, inveighing against the prava consuetudo, as he calls investiture. Decretal, 1. 3, t. 7, c. 3.

(k) Selden, History of Tithes, c. 12, ss. 2, 5. (7) 3 Salk. 139.

(m) See Co. Litt. 144 a, and Mirehouse v. Rennell, a case in which a vast amount of learning upon the subject of advowsons was displayed, both in the numerous arguments and the various judgments reported in D. P.,

1 Cl. & F. 527; 7 Bli. N. S. 241; in K. B., sub nom. Rennell v. Bishop of Lincoln, 7 B. & Cr. 113; 9 D. & Ry. 817, in C. P. (the decision of which was reversed), 3 Bing. 223 & 8 Bing. 490.

(n) Co. Litt. 344; Fairchild v. Gayre, Cro. Jac. 63, S. C. Yelv. 61; R. v. Lord Foley, 2 C. B. 664. If the advowson be donative by letters patent and not by prescription, the rule does not seem to apply, Ladd v. Widdows, 2 Salk. 541, S. C. Holt, 259; see 3 ib. 140.

(0) Co. Litt. 166 b; Gully v. Bishop of Ereter, 10 B. & C. 584; Bishop of Salisbury v. Philips, Ld. Raym. 535; Richards v. Earl of Macclesfield, 4 L. J. N. S. Ch. 153.

each presentation, otherwise the bishop may present. This right of presentation may before the vacancy occurs be sold, but not when the church is *void (p). So that if an advowson be sold when the church is vacant, the presentation will not pass, although the sale is good as to the [*95] advowson (g). If the patron die whilst the church is vacant, then, although the advowson goes to the heir or devisee, the presentation is considered as a chattel and goes to the personal representative (r); if, however, the patron ist himself incumbent, so that the vacancy is occasioned by his own death, the presentation goes to the heir or devisee (s). An advowson being of a valuable species of property, may of course be mortgaged, but inasmuch as the presentations are not matters that can be brought into account, the mortgagee is bound in equity to present the mortgagor's nominee; and this rule holds even where there is an express contract that the mortgagee shall present (†), but of course the parties may contract that the mortgagee should have the power of selling the presentation before the vacancy occurs, and under the present law of mortgages (u) a mortgagee may, whether authorised by his deed or not, sell the advowson. Similarly, the trustee of a bankrupt patron may sell an advowson, but if the church be vacant the bankrupt may *present for that

turn (x). Again, a guardian only takes that part of an infant's estate [*96] for which he can account, therefore he cannot present, but the infant himself presents to a vacant living (y). An advowson seems always to have been assets for payment of the specialty debts, and now is so for all debts of a deceased patron (z), and under the modern law (a) a creditor of a living patron might until recently obtain satisfaction of his debt out of an advowson, whether he may now do so seems open to some doubt.

When an incumbent of a church is raised to a bishopric the crown has the right of presenting for that turn (b).

(p) 31 Eliz. c. 6. We shall hereafter notice more at length the law against simony as part of the law of forfeiture. The sale may be made even when the incumbent is in extremis. See Fox v. Bishop of Chester, 6 Bing. 1, where the law of advowsons was much considered.

(q) Baker v. Rogers, Cro. Eliz. 788; Wolforstan v. Bishop of Lincoln, 2 Wils. 174; Greenwood v. Bishop of London, 5 Taunt. 724. (r) Mirehouse v. Rennell, 4 Cl. & Fin. 527; 7 Bligh. N. S. 241, et ubi sup.

(8) Holt v. Bishop of Winchester, 3 Lev. 47; Harris v. Austen, 3 Bulst. 47; 2 Roll. Rep. 214. See Martin v. Martin, 12 Sim. 579, where the patron being incumbent devised his real estate, including the advowson, to trustees, upon trusts, to maintain children, sell, &c. It was held that this devise could not carry the presentation, which could neither be sold nor applied for maintenance of children; and compare 1 Leon. 205.

(t) Jory v. Cox, Prec. Ch. 71; Amhurst v. Darling, 2 Vern. 401; Mackensie v. Robinson, 3 Atk. 559. A presentation by the mortgagee will however be good, unless the mortgagor sets it aside within six months. (13 Ed. 1, c. 5.)

(u) 23 & 24 Vict. c. 145, quære whether this would authorize a sale of a next presentation.

(x) Mirehouse, 156; 12 & 13 Vict. c. 106, s. 147.

(y) Co. Litt. 17 b, 89 a; Bishop of Lincoln v. Wolforstan, 3 Burr. 1504; Shopland v. Royder, Cro. Jac. 95.

(2) Co. Litt. 17 b, 374 b; Robinson v. Tonge, 3 P. Wms. 398, 401; 1 Bro. P. C. 114; Westfaling v. Westfaling, 3 Atk. 460; 3 & 4 Will. 4, c. 105.

(a) 1 & 2 Vict. c. 110, s. 13. Since an advowson cannot be extended under a writ of elegit (which, under the act just cited, s. 11, only affects "lands, tenements, rectories, tithes, rents, and hereditaments," omitting the word advowsons,' and under the ancient statute Westminster the 2nd, 13 Edw. 1, c. 18, an advowson was not extendible, Robinson v. Tonge, 3 P. Wms. 398, 400, Co. Litt. 374); and since, under the late act, 27 & 28 Vict. c. 112, no charge is created until the "lands" are delivered in execution, in which act land seems to include advowsons (see s. 2), it appears to follow that advowsons have regained their former immunity as against the judgment debts of a living patron.

(b) Basset v. Gee, Cro. Eliz. 790; Wentworth v. Wright, lb. 526; Woodley v. Bishop of Exeter, Cro. Jac. 691. The prerogative does not extend to donative advowsons, Grocers' Co. v. Archbishop of Canterbury, 2 W. Bl. 770; Bishop of London v. Att.-Gen. Show. P. C. 164. See 3 & 4 Will. 4, c. 27, s. 31.

Some restrictions have been by law placed upon the rights of patrons to present. Thus, though a Roman catholic may be owner of an advowson, he may not present on a vacancy, the right to which in such a case belongs to the universities of Oxford and Cambridge (c). But no such restriction has been laid upon a Jew who may *present (d). A similar restriction was laid [*97] upon municipal corporations, who have been by act of parliament directed to sell such advowsons as they possessed (e).

Collative advowsons are where the patron is the bishop of the diocese in which the living lies. Presentation and institution are in such a case replaced by the single act of collation (ƒ).

Formerly, when advowsons were attached to monasteries or other ecclesiastical institutions, it was, as we have seen (g), customary for them to appoint vicars to the churches; the right of nomination to these vicarages constituted another advowson, which on the dissolution of monasteries came into the hands of private individuals (h). There is no difference in the law relating to advowsons of rectories and those of vicarages; the like may be said of those vicarages; which were before 31 & 32 Vict. c. 117, called perpetual curacies.

V. Corodies.

V. Corodies are a right of sustenance, or to receive certain allotments of victual and provision for one's maintenance, in lieu of which a pension or sum of money is sometimes substituted. And these may be reckoned another species of incorporeal hereditaments; though not chargeable on, or issuing from, any corporeal inheritance, but only charged on the person of the owner in respect of such his inheritance. But, like other incorporeal hereditaments, they are transferable only by deed (i). They are only found in connection with ecclesiastical, collegiate, or other similar corporations or institutions, and partake of an eleemosynary character.

*VI. Annuities are of much the same nature as corodies, except that [*98] they have their origin in the grant of temporal persons, whilst the former are always due from spiritual incorporations. We have VI. Annuities. already (k) had occasion to point out much of their nature in distinguishing them from rent-charge, with which they are often confounded, the two names being commonly, though inaccurately, used interchangeably. The primary requisite to a good annuity is the fixity of the intervals at which it is payable. Thus, a covenant with A. and his heirs to find a priest to serve a chapel every holyday, or to pay 51. for every default, is no aunuity on account of the uncertainty of the payment (7). The annuity is to be considered as consisting merely of definite sums payable at specified epochs, and so is distinguishable from payments in the nature of interest. Upon this principle, until provision was made by statute for obviating the evils attending the rule (m),

(c) By 1 W. & M. c. 26. See also 3 Jac. 1, c. 5; 12 Ann. st. 2, c. 14; 11 Geo. 2, c. 17; 10 Geo. 4, c. 16, s. 16; Edwards v. Bishop of Exeter, 7 Scott, 652; see Edwards v. Bishop of Exeter, 5 Bing. N. C. 652.

(d) Per Lord Lyndhurst, in Mirehouse v. Rennell, 7 Bligh. 322.

(e) 5 & 6 Will. 4, c. 6, explained by 1 & 2 Vict. c. 31. See Hine v. Reynolds, 2 Scott, N. R. 394.

it was held that if a man entitled to an annuity for his life died the day before the day of a payment becoming due, his executors could not claim any part of the sum which would have accrued (n). The characteristic of an annuity at common law was that there was a special writ by which it could be recovered (0); the modern form of securing its payment is by bond or covenant, the action upon which may be had without prejudice to any security which the annuitant may have, which was not the case with the ancient and now obsolete writ. As we have said that since an annuity may be limited to a man and his heirs, it constitutes in some sort an hereditament, otherwise it has little about it in common with other hereditaments. It may be put an end to by the grantor obtaining his order of discharge in bankruptcy, the annuitant having merely *the right to prove in the bankruptcy for the value of the annuity (p). We may notice that an inflexible rule seems to have been established that no claim for interest on arrears of an annuity is allowed (q).

[*99]

The practice of granting annuities is now far less frequent than it was in the early part of this century, when the rate of interest which could be legally made payable upon a loan was limited. At times when transactions of this kind were frequent there were several restrictions imposed by the legislature upon the grant of annuities, and amongst these it was requisite to enrol a memorial of the annuity in chancery in a prescribed form within thirty days after the execution of the grant (r). The litigation which arose out of this was found to be greater than the benefit, which the registration was supposed to afford, warranted, and accordingly all the legislative trammels in which. annuities were involved were put an end to by a recent act (s). The only requisite which now exists to the validity of an annuity when granted by deed is a registration in the Court of Common Pleas at Westminster (t).

VII. Franchises are a seventh species. Franchise and liberty are used as synonymous terms: and their definition is (u), a royal privilege, or branch of the king's prerogative, subsisting in the hands of a subject. VII. Franchises. Being therefore derived from the crown, they must arise from the king's grant (x); or, in some cases (y), may be held by *prescription, which, as has been frequently said, presupposes a grant (z). We may here remark, that they may be vested in either natural persons or bodies

[*100]

(n) 1 Swanst. 349 n.; Winter v. Mouseley, 2 by prescription; for a record cannot be preB. & Al. 802.

(0) Litt. s. 219.

(p) 12 & 13 Vict. c. 106, s. 175.

(q) Mansfield v. Ogle, 4 De G. & J. 38; Pocell Trusts, 10 Hare, 134; Torre v. Brown, 5 H. L. Ca. 555; Booth v. Coulton, 2 Giff. 514. (r) See 53 Geo. 3, c. 141; 3 Geo. 4, c. 92; and 7 Geo. 4, c. 77.

(8) 17 & 18 Vict. c. 15, s. 12. () 18 & 19 Vict. c. 15, s. 12. Annuities granted by will are exempt from the provisions of the act, s. 14.

(u) Finch. L. 164.

(a) They were formerly granted in great number until restrained by a declaration of Edw. 3, upon a petition presented by the commons in the parliament held 21 Edw. 3. See 2 Rot. Parl. 16.

(y) Such franchises as cannot be enjoyed without matter of record, cannot be claimed

sumed from such evidence. Such are rights to deodands and to the goods of felons, to make a corporation, to make a coroner, &c. Co. Litt. 114 a; 9 Rep. 276. The stat. 9 Geo. 3, c. 16, which limits the claim of the crown to sixty years, expressly excepts franchises and liberties. That act was passed in consequence of the litigation between Sir James Lowther and the Earl of Portland. The Honour of Penrith, with its appurtenances, were granted to the 1st Earl of Portland, who, and his successors, enjoyed as appurte nant to it, the castle of Carlisle and the forest of Inglewood, until Sir James Lowther, conceiving that these were not included in the grant, obtained a lease of them from the crown.

(z) See Trotter v. Harris, 2 Y. & J. 285; R. v. Marsden, 3 Burr. 1812.

politic; in one man or in many; but, as is obvious, the same identical franchise that has before been granted to one, cannot be bestowed on another, for that would prejudice the former grant (a).

To be a county palatine is a franchise vested in a number of persons. It is likewise a franchise for a number of persons to be incorporated, and subsist as a body politic; with a power to maintain perpetual succession and to do other corporate acts: and each individual member of such corporation is also said to have a franchise or freedom (b).

The following are the principal other franchises. To have a forest, chase, park, warren, or fishery endowed with royal privileges. To have a court or liberty of holding pleas and trying causes. To have the cognizance of pleas, or the exclusive right to try causes within the *jurisdiction of such a [* *101] franchise. To have a bailiwick or liberty exempt from the sheriff, wherein the grantee only and his officers (c) may execute all process. To have a manor or lordship, or at least to have a lordship paramount. To hold a court leet (d). To have a fair or market, with the right of taking tolls either there or at other public places such as bridges. Lastly, to have waifs, wrecks, estrays, treasure-trove, royal fish, and forfeitures.

The privilege of hunting seems from the most ancient times to have been one of the most highly prized accompaniments of power and wealth. Amongst the ancient Germanic tribes it appears to have been frequently claimed by princes as their special right (e). In England, prior to the Norman conquest, hunting was esteemed as a princely diversion and exercise, but it does not appear that the Saxon kings ever claimed to put a restraint upon their subjects in this respect, and every freeholder had the full liberty of sporting on his own land, so long as he did not trespass upon royal territories (f). This right of appropriating animals or birds that a man may find upon his own lands, by taking or killing them, is a right similar to that of enjoying other natural *accessories of land, such as air or water, and except so [* 102 ] far as controlled by statutes (g), it has continued to be the common law up to the present day (h).

(a) 2 Roll. Ab. 191; Keil. 196. Edward the Confessor, c. 36, where we find (b) Formerly the grant of charters incorpo- "sit quilibet homo dignus venatione suá in rating companies was a common practice; sylvia et in agris sibi propriis et in dominio since, however, the various Joint Stock Com- suo: et abstineat omnis homo a venarii regiis panies' Acts have been passed, this practice ubicunque pacem eis habere voluerit." Wilk. has fallen into disuse. The act under which Leg. Sax. 146, and compare the Scandinavian companies for general purposes are now law, stated in Stiernhood de jure Sueon. lib. formed and incorporated is The Companies' i. c. 8. Cuique enim in proprio fundo Act, 1862, 25 & 26 Vict. c. 89, and the Amend- quamlibet feram quoque modo venari permisment Act of 1867, 30 & 31 Vict. c. 131. sum." See Manwood on Forests, pl. 3.

(c) See Newland v. Cliffe, 3 B. & A. 630; Mounsey v. Dawson, 6 A. & E. 752.

64

(g) As to the modern statutes concerning game, see post.

(d) A court-leet, though not uncommonly (h) Case of Monopolies, 11 Rep. 87; Lord part of the manorial privileges, is not, like a Dacre v. Tebb, 2 BI. Rep. 1151. See Rigg v. court baron, necessarily incident to a manor. Lonsdale, 1 H. & N. 923; s. c. 11 Exch. 654. It is derived from the sheriff's tourn, and is a This opinion is contrary to that formerly court of record, having the same jurisdiction held, that the Norman conquest swept away within some particular precincts as the sher- all ancient rights in this respect, and substiiff's tourn. It is a privilege created by grant tuted the doctrine that the right of pursuing or from the crown to the lords of certain man- taking all beasts of chase or venery, and such ors for the more easy administration of jus- other animals as were accounted game, was tice. Colebrook v. Elliott, 3 Burr. 1859. then assumed as belonging only to the king, (e) See Cæsar, De Bell. Gall. lib. 6, c. 20; and such persons as were authorised by him. Tacitus, Germ. c. 15 Heineccius, Elem. Jur. Mr. Christian has, however, pointed out the Germ. lib. 2, No. 82. improbability of this theory, and we follow

(f) See Laws of Canute, c. 77, and of his authority.