(1247.) It is peculiar to Advowsons that a kind of chattel interest in them may be created, which does not consist of any Term or period of enjoyment, but of a single future fruit or benefit: for such is the effect of a Grant of the next or any * 378. b. subsequent Presentation; and indeed if any number of future Presentations be granted, the Co. Litt. 249. a. case is similar. (1248.) If however the owner of the Advowson be also incumbent of the Church, the right of presentation accruing on his death does not devolve as a Chattel upon his Executor, but descends to his heir. (1249.) The Law considers an Advowson in the double light of temporal property and spiritual trust. In the former view, it justifies the sale of it in fee simple, and declares it to be Assets in the hands of an heir; though, as it does not produce any annual profit, it seems not to be extendible on an Elegit. (1250.) On the other hand, whenever the Church has become vacant, a public and religious duty attaches so firmly upon the immediate right of presentation, as to render it unalienable; and therefore by the old law, when an Advowson descended on an infant heir, and a vacancy occurred, his Guardian in Socage, to whose care all his property was committed, was not entitled to present, but the infant must act for himself; and (1247. n.) Whether the Grantee of the next presentation may suffer from the incumbent's promotion to a Bishoprick, see 2 Bl. Rep. 774. C C Hall v. Bp. of 47; and see Rennell v. Bp. Harg. Co. Litt. 17. b. n. 3; 2 Co. Litt. 17. b. 89.a. (1012. 200.) (1230.) (246.) (1247.) by the late Bankrupt Act, (St. 6 G. 4, c. 16, s. 77,) when other Powers exerciseable by the Bankrupt for his own benefit are transferred to the Assignees, this is excepted. (1251.) But before the Church has become vacant, a Grant may in general, as we have seen, be made of the next Presentation; and the interest thus created is evidently of an intermediate nature between the mere trust and the absolute property. The validity of the Grant is therefore to be determined by circumstances, and particularly by the Consideration upon which it is made; and this Consideration must be estimated by rules peculiar to the subject matter. (1252.) These rules owe their present strictness principally to the Statute of 31 El. c. 6, which in s. 5, enacts, That if any person shall "for any sum of money, reward, gift, profit, or "benefit, directly or indirectly, or for or by rea"son of any promise, agreement, Grant, Bond, Covenant, or other Assurances, of or for any "sum of money, &c. present or collate any person "to any Benefice with Cure of Souls, Dignity, 66 Prebend, or Living Ecclesiastical, or give or "bestow the same" for such corrupt consideration, then such presentation, &c. shall be utterly void, and the King may present for that turn. A pecuniary penalty is also imposed on the parties, and the presentee is for ever disqualified from holding that benefice. And by s. 8, a penalty is likewise imposed for the corrupt resignation of a benefice. (1253.) In the construc Chester, 2 B. & tion of this Statute it has been held, that if the 6 Bac. Ab. 188. next Presentation can be shown to have been purchased with the intention of presenting a certain person, who upon the vacancy taking place is presented accordingly, this fact is sufficient to render the transaction corrupt and Simoniacal. And though an exception has been made in the case of a Father providing for his son, the principle of that exception has since 2 B & C, 652. been denied. (1254.) And by St. 12 Ann. c. 12, all persons are prevented from providing for themselves by the purchase of any next presentation. (1255.) The circumstance of the Incumbent being at the point of death, when Fox v. Bp. of the contract of purchase is made, may also C. 635. vitiate the transaction; nor is a Grant of the Advowson for a term of years, which may possibly extend to several vacancies, distinguishable from a Grant of the next Presentation merely. (1256.) These severe decisions are not, however, generally applicable to cases where the next Presentation is purchased inclusively in the fee simple of the Advowson; a distinction which would be more reasonable, if the growing fruit were not the most valuable part of the tree. And it may be doubted whether the Statute of 12 Anne, (which speaks only of next Presentations,) can be so far extended as to render simoniacal the purchase of an entire Advowson by a person who afterwards presents himself upon the first vacancy. (1257.) With respect to Presentations accompanied with an Barret v. Glubb, 2 BI. Rep. 1052. Fletcher v. Ld. Sondes, 3 Bing. 501. agreement for resignation, a distinction was long supposed to exist between general and circumstantial stipulations. But it has lately been decided by the House of Lords that all such engagements are void. This however, being a somewhat unexpected decision, has given rise to the St. 7 & 8 G. 4, c. 25, by which engagements, made before the 9th April 1827, for the resignation of any benefice, when a person, or one of two persons named, should become qualified to accept it, are confirmed; but with a Proviso that the resignation itself shall be void unless that person, or one of those two persons, be presented within six calendar months. (1133.1152.) CHAP. VII. OF CUSTOMARY ESTATES. * (1258.) BY Customary Estates we mean those to which the Title is not only modified, but altogether constituted, by Custom. Such are to be found in many Manors; and though the Customs of these Manors are almost infinitely diversified, they have yet all some * (1258. n.) An Allotment made under an Inclosure Act to the owner of a Customary Estate in respect of his Right of Common Appendant, will not be of Customary Tenure, unless so provided in the Act. Doe v. Davidson, 2 M. & S. 175. 2 J. R. 424. 5 Mod. 382. (1023.) common features, which the law recognises as forming a uniform system, and may be said to 9 Co. 75. b. have adopted into its own body. (1259.) The * Lands to which these Customs relate are called Customary Lands; but, subject to the Estates in them which the Custom confers, they are Co. Tr. 11.; held also by the Lord under the Common Law as part of the Demesnes of his Manor. (1260.) For these Customary Estates were in their origin mere Tenancies at Will, though by long indulgence they have in many instances acquired the character of a permanent inheritance; and as Tenancies at Will they continue to be considered, in all questions relating to the Co. Tr. 5. Legal, as distinguished from the Customary, property in the land. (1261.) The great criterion of a Customary Litt. 74, 75. Estate is, that all alienations of it must be transacted, in part at least, in the Lord's Court. Hence the proper evidences of Title to such See Doe v. Calloway,6 B. & C. Estates are copies of the Court Rolls; from 484. which the Tenants of them are in general denominated Copyholders. (1262.) The Court of which we here speak must not be confounded with the Court Baron, properly so called; (1259. n.) A Customary Estate may subsist in Underwoods without the soil, and in the herbage or vesture of land, (Stammers v. Dixon, 7 East, 200,) and also in some decidedly incorporeal Tenements; but it is absolutely necessary that the subject should have existed, as parcel of a Manor, from time immemorial. See Co. Litt. 58. b. ; Co. Tr. 97; 1 Bac. Abr. 720. (1027.) Co. Litt. 58. a; 4T. R. 446. (1162.) |