all things of a permanent, substantial nature; being a word of a very extensive signification, as will presently appear more at large. Tenement is a word of still greater extent, and though in its vulgar acceptation it is only applied to houses and other buildings, yet in its original, proper, and legal [ 17 ] sense, it signifies every thing that may be holden, provided it be of a

3

permanent nature; whether it be of a substantial and sensible, or of an unsubstantial ideal kind. Thus liberum tenementum, frank tenement, or freehold, is applicable not only to lands and other solid objects, but also to offices, rents, commons and the like: (a) and, as lands and houses are tenements, so is an advowson a tenement; and a franchise, an office, a right of common, a peerage, or other property of the like unsubstantial kind, are all of them, legally speaking, tenements. (b) But an hereditament, says sir Edward Coke, (c) is by much the largest and most comprehensive expression for it includes not only lands and tenements, but whatsoever may be inherited, be it corporeal or incorporeal, real, personal, or mixed. Thus an heirloom, or implement of furniture which by custom descends to the heir together with a house, is neither land, nor tenement, but a mere moveable : yet being inheritable, is comprised under the general word hereditament: and so a condition, the benefit of which may descend to a man from his ancestor, is also an hereditament. (d)

Hereditaments then, to use the largest expression, are of two kinds, corporeal and incorporeal. Corporeal consist of such as affect the senses; such as may be seen and handled by the body: incorporeal are not the object of sensation, can neither be seen nor handled, are creatures of the mind, and exist only in contemplation.

Corporeal hereditaments consist wholly of substantial and permanent objects; all which may be comprehended under the general denomination of land only. For land, says sir Edward Coke, e) comprehendeth in its legal signification any ground, soil, or earth whatsoever; as arable, meadows, pastures, woods, moors, waters, marshes, furzes, and heath. Itlegally includeth also all castles, houses, and other buildings: for they consist, saith he, [ 18 ] of two things: land, which is the foundation, and structure thereupon; so that if I convey the land or ground, the structure or building passeth therewith. It is observable that water is here mentioned as a species of land, which may seem a kind of solecism; but such is the language of the

a Co. Litt. 6.

b Ibid. 19, 20.

c 1 Inst. 6.

d 3 Rep. 2.

e 1 Inst. 4.

(2) As to the term permanent being part of this definition, see 1 Prest. Est. 10. and H. Chitty on Descents, 11, 12.

(3) Therefore in an action of ejectment, which, with the exception of tithe and common ap purtenant, is only sustainable for a corporeal hereditament; it is improper to describe the property sought to be recovered as a tenement, unless with reference to a previous more certain description. 1 East, 441. 8 East 357. By the general description of a messuage, a church may be recovered. 1 Salk. 256. The term close, without stating a name or number of acres, is a sufficient description in ejectment. 11 Coke, 55. In common acceptation it means an enclosed field, but in law it rather signifies the separate interest of the party in a particular spot of land, whether enclosed or not. 7 East, 207. Doct. and Stud. 30. If a man make a feoffment of a house" with the appurtenances," nothing passes by the words with the appurtenances, but the garden, curtilage, and close adjoining to the house, and on which the house is built, and no other land, although usually occupied with the house; but by a devise of a messuage, without the words "with the appurtenances," the garden and curtilage will pass, and where the intent is apparent, even other adjacent property. See cases, 2 Saund. 401. note 2. 1 Bar. & Cres. 350.; see further as to the effect of the word" appurtenant," 15 East. 109. 3 Taunt. 24. 147. 1 B. & P. 53. 55. 2 T. R. 498. 502. 3 M. & S. 171. The term farm, though in common acceptation it imports a tract of land with a house, outbuildings, and cultivated land, yet in law, and especially in the description in an action of ejectment, it signifies the leasehold interest in the premises, and does not mean a farm in its common acceptation. See post 318. Chitty.

law and therefore I cannot bring an action to recover possession of a pool or other piece of water by the name of water only: either by calculating its capacity, as, for so many cubical yards; or, by superficial measure, for twenty acres of water; or by general description, as for a pond, a watercourse, or a rivulet: but I must bring my action for the land that lies at the bottom, and must call it twenty acres of land covered with water. (f) For water is a moveable wandering thing, and must of necessity continue common by the law of nature; so that I can only have a temporary, transient, usufructuary, property therein: wherefore, if a body of water runs out of my pond into another man's, I have no right to reclaim it. But the land, which that water covers, is permanent, fixed, and immoveable: and therefore in this I may have a certain substantial property; of which the law will take notice, and not of the other.

Land hath also, in its legal signification, an indefinite extent, upwards as well as downwards. Cujus est solum, ejus est usque ad coelum, is the maxim of the law upwards; therefore no man may erect any building, or the like, to overhang another's land: and, downwards, whatever is in a direct line, between the surface of any land and the centre of the earth, belongs to the owner of the surface; as is every day's experience in the mining countries. So that the word "land" includes not only the face of the earth, but every thing under it, or over it. And therefore, if a man grants all his lands, he grants thereby all his mines of metal and other fossils, his woods, his waters, and his houses, as well as his fields and meadows. Not but the

particular names of the things are equally sufficient to pass them, ex[19] cept in the instance of water; by a grant of which, nothing passes

but a right of fishing: (g) but the capital distinction is this, that by the name of a castle, messuage, toft, croft, or the like, nothing else will pass, except what falls with the utmost propriety under the term made use of; but by the name of land, which is nomen generalissimum, every thing terrestrial will pass. (h)

CHAP. III.

OF INCORPOREAL HEREDITAMENTS.

AN incorporeal hereditament is a right issuing out of a thing corporate (whether real or personal) or concerning, or annexed to, or exercisable within, the same. (a) It is not the thing corporate itself, which may consist in lands, houses, jewels, or the like; but something collateral thereto, as a rent issuing out of those la houses, or an office relating to those jewels. In short, as the logicians speak, corporeal hereditaments are the sub

f Brownl. 142.

g Co. Litt. 4.

b Ibid. 4, 5, 6.

a Co. Litt. 19, 20.

(4) As to the remedy for the infraction of this right, 11 Mod. 74. 130. 2 Burr. 1114. I Stark Rep 56.

(5) Or the right to use the water, as in the case of rivers and mill-streams. Twenty years etclusive enjoyment of the water in any particular manner by the occupier of the adjoining lands, affords a con lusive presumption of night in the party so enjoying it; and he may maintain an action if the water be diverted from its course, so that the quantity he has thas been accustomed to enjoy is diminished, although the fishery may not be injured, 6 East, 908 7 East, 195 1 Wils. 175. ; and he may legally enter the land of a person, who has occasioned a nuisance to ⚫vatercourse, to abate it. 2 Smith's Rep. 9 Com. Dig. Pleader. 3 M. 41 Chatty

stance, which may be always seen, always handled: incorporeal hereditaments are but a sort of accidents, which inhere in and are supported by that substance; and may belong, or not belong to it, without any visible alteration therein. Their existence is merely in idea and abstracted contemplation; though their effects and profits may be frequently objects of our bodily senses. And indeed, if we would fix a clear notion of an incorporeal hereditament, we must be careful not to confound together the profits produced, and the thing, or hereditament, which produces them. An annuity, for instance, is an incorporeal hereditament: for though the money, which is the fruit or product of this annuity, is doubtless of a corporeal nature, yet the annuity itself, which produces that money, is a thing invisible, has only a mental existence, and cannot be delivered over from hand to hand. So tithes, if we consider [21] the produce of them, as the tenth sheaf or tenth lamb, seem to be completely corporeal; yet they are indeed incorporeal hereditaments: for they being merely a contingent springing right, collateral to or issuing out of lands, can never be the object of sense: that casual share of the annual increase is not, till severed, capable of being shewn to the eye, nor of being delivered into bodily possession.

Incorporeal hereditaments are principally of ten sorts; advowsons, tithes, commons, ways, offices, dignities, franchises, corodies or pensions, annuities, and rents.

1. Advowson is the right of presentation to a church, or ecclesiastical benefice. Advowson, advocatio, signifies in clientelam recipere, the taking into protection; and therefore is synonymous with patronage, patronatus: and he who has the right of advowson is called the patron of the church. For, when lords of manors first built churches on their own demesnes, and appointed the tithes of those manors to be paid to the officiating ministers, which before were given to the clergy in common (from whence, as was formerly mentioned, (b) arose the division of parishes), the lord, who thus built a church, and endowed it with glebe or land, had of common right a power annexed of nominating such minister as he pleased (provided he were canonically qualified) to officiate in that church, of which he was the founder, endower, maintainer, or, in one word, the patron. (c)

This instance of an advowson will completely illustrate the nature of an incorporeal hereditament. It is not itself the bodily possession of the church and its appendages; but it is a right to give some other man a title to such bodily possession. The advowson is the object of neither the sight, nor the touch; and yet it perpetually exists in the mind's eye, and in contemplation of law. It cannot be delivered from man to man by any visible bodily transfer, nor can corporeal possession be had of it. If [22] the patron takes corporeal possession of the church, the church-yard, the glebe or the like, he intrudes on another man's property; for to these the parson has an exclusive right. The patronage can therefore be only conveyed by operation of law, by verbal grant, either oral or written, which

b Book I. pag. 112.

© This original of the jus patronatus, by building and endowing the church, appears also to have been allowed in the Roman empire. Nov. 26. L. 12. e. 2. Not. 118. c. 23.

(1) As to advowsons in general, see Com. Dig. Advowson, Quare Impedit; Bac. Ab. Simony; Burn E L Advowson; Cruise Dig. title, xxi. & see index 6 vol. tit. Advowson; Mirehouse on Advowsons.

(2) This is erroneous, for "advowsons, merely as such (i. e. in gross), could never pass by oral grant without deed." Lord Coke says expressly, that "grant is properly of things incorporeal, which cannot pass without deed," (1 Inst. 9.) and though before the statute of fraud

is a kind of invisible mental transfer: and being so vested it lies dormant and unnoticed, till occasion calls it forth: when it produces a visible corporeal fruit, by entitling some clerk, whom the patron shall please to nominate, to enter, and receive bodily possession of the lands and tenements of the church.

Advowsons are either advowsons appendant, or advowsons in gross. Lords of manors being originally the only founders, and of course the only patrons. of churches, (d) the right of patronage or presentation, so long as it continues annexed to the possession of the manor, as some have done from the foundation of the church to this day, is called an advowson appendant: (e) and it will pass, or be conveyed, together with the manor, as incident and appendant thereto, by a grant of the manor only, without adding any other words. (f) But where the property of the advowson has been once separated from the property of the manor by legal conveyance, it is called an advowson in gross, or at large, and never can be appendant any more; but it is for the future annexed to the person of its owner, and not to his manor or lands. (g)

Advowsons are also either presentative, collative, or donative : (h) an advowson presentative is where the patron hath a right of presentation to the bishop or ordinary, and moreover to demand of him to institute his clerk, if he finds him canonically qualified; and this is the most usual advowson. '

d Co. Litt. 199.

e Ibid. 121.

f Ibid. 307.

g Ibid. 120.

h Ibid.

29 Car. II. c. 3. any freehold interest in corporeal hereditaments might have passed by a verbal feoffment, accompanied with a livery of seisin. (Litt. S. 59.) and by such a verbal grant of a manor, before the statute, an advowson appendant to it might have been conveyed: yet since that statute, the transfer must be in writing, and by deed. 2 Wood. 64. I Saund. 223.

Christian.

(3) The right of presentation is the right to offer a clerk to the bishop, to be instituted to a church. Co. Litt, 120. a. 3. Cruise, 3. All persons seised in fee, in tail, or for life, or possess ed for a term of years of a manor to which an advowson is appendant, or of an advowson in gross, may present to a church when vacant. Although this is a right, considered of great value, as a provision for relations, a pledge of friendship, or, what is its true use and object, the reward of learning and virtue; yet the possession of it never can yield any lucrative benefit to the owner, as the law has provided that the exercise of this right must be perfectly gratuitous. The advowson itself is valuable and saleable, but not the presentation when the living is void 1 Leon. 205. Therefore the mortgagor shall present when the church is vacant, though the advowson alone is mortgaged in fee, for the mortgagee could derive no advantage from the presentation in reduction of his debt, S Atk. 599. Mirehouse, Adv. 150, 1.; so, though the assignees of a bankrupt may sell the advowson, yet, if the church be void at the time of the sale, the bankrupt himself must present the clerk, Mirehouse, 156.; and if an advowson is sold when the church is void, the grantee cannot have the benefit of the next presentation; and it has been doubted, whether the whole grant is not void, Cro. Eliz. 811. 3 Burr. 1510. Bla. Rep. 492. 1054 Amb. 268; though, probably, there would be no objection to the grant of an advowson, though the church is vacant if the next presentation be expressly reserved by the grantor, especially as it has been decided that a conveyance of an advowson, though it may be void for the next presentation, yet may be good for the remaining interest, when it can be fairly separated from the objectionable part 5 Taunt. 727. 1 Marsh. 292. An advowson in fee in gross, is assets in the hands of the heir, 3 Bro. P. C. 556.; but it is not extendible under an elegit, because a moiety cannot be set out, nor can it be valued at any certain rent towards payment of the debt. Gilb Exec. 39 2 Saund 63. €. He who has an advowson or right of patronage in fee, may, by deed, transfer every species cẩ interest out of it, viz. in fee, in tail, for life, for years, or many grant one or more presentations. The right of presentation descends by course of inheritance, from heir to heir, as lands and tenements, unless the church become vacant in the lifetime of the person seised of the advowson in tee, when the void turn being then a chattel goes to the executor, unless it be a donative benefice, and in that case the right of donation descends to the heir, 2 Wils. 150; if, however, the patron presents and dies before his clerk is admitted, and his executor presents another, both these presentments are good, and the bishop may receive which of the clerks he pleases, Co. Lit. 388 aBarn E. L. tit. Advowson, Mirehouse on Advowsons, 139., where see in general the right of presentation. See further as to presentation by joint-tenants and tenants in common. 2 Saund 116 b. Where the same person is patron and incumbent, and dies, his heir is to present. S Lev 47 5 Buls. 47.; but such patron and incumbent may devise the presentation. Í Lev. 205. 2 Rob Rep. 214. 6 Cruise Dig. 21. Mirehouse, 70. Bat es we have seen an advowson in grom will e."

An advowson collative is where the bishop and patron are one and the same person in which case the bishop cannot present to himself; but he does, by the one act of collation, or conferring the benefice, the whole that is done in common cases, by both presentation and institution. [23] An advowson donative is when the king, or any subject by his licence, doth found a church or chapel, and ordains that it shall be merely in the gift or disposal of the patron; subject to his visitation only, and not to that of the ordinary; and vested absolutely in the clerk by the patron's deed of donation without presentation, institution, or induction. (i) This is said to have been anciently the only way of conferring ecclesiastical benefi ces in England; the method of institution by the bishop not being established more early than the time of archbishop Becket in the reign of Henry II. (k) And therefore though pope Alexander III. () in a letter to Becket, severely inveighs against a prava consuetudo, as he calls it, of investiture conferred by the patron only, this however shews what was then the common usage. Others contend that the claim of the bishops to institution is as old as the first planting of christianity in this island; and in proof of it they allege a letter from the English nobility to the pope in the reigi of Henry the Third, recorded by Matthew Paris,) which speaks of presentation to the bishop as a thing immemorial. The truth seems to be, that, where the benefice was to be conferred on a mere layman, he was first presented to the bishop, in order to receive ordination, who was at liberty to examine and refuse him: but where the clerk was already in orders, the living was usually vested in him by the sole donation of the patron; till about the middle of the twelfth century, when the pope and his bishops endeavoured to introduce a kind of feodal dominion over eccle iastical benefices, and, in consequence of that, began to claim and exercise the right of institution universally, as a species of spiritual investiture.

However this may be, if, as the law now stands, the true patron once waves this privilege of donation, and presents to the bishop, and his clerk is admitted and instituted, the advowson is now become for [24] ever presentative, and shall never be donative any more. (n) For these exceptions to general rules, and common right, are ever looked upon by the law in an unfavourable view, and construed as strictly as possible. If therefore the patron, in whom such peculiar right resides, does once give up that right, the law, which loves uniformity, will interpret it to be done with an intention of giving it up for ever; and will therefore reduce it to the standard of other ecclesiastical livings. 4

i Co. Litt. 344.

Seld, tith. c. 12. 2

m. 4. D. 1239.

1 Decretal. L. 3. t. 7. c. 3. n Co. Litt 341. Cro. Jac. t.

pass by the word "lands" in a will, though it will be comprehended under the terms "unements and hereditaments," ante 16. n. 1.

The remedy for the infraction of the right of presentation is an action of quare impedit, in which, although we have seen that no proft can be taken for presenting the clerk, yet the patron, whose right of patronage is injuriously disturbed, recovers two years' value of the church, if the turn of presentation is list. 3 Cruise, 17, 18 The particulars of the action of quare impedit wi,' be considered, post 3 vol. 242 to 253. When the bishop refuses without good cause, or unduly delays to admit and institute a clerk, he may have his remedy against the bishop in the ecclesia tical court. 3 Cruise, 17. As to any remedy for the clerk at law, see 13 East, 419. 15 East, 117.

Chitty

(4) The contrary is held by a later authority than the authorities referred to by tue learned judge; m which it was declared, that although a presentation may destroy a Topro. priation, yet it cannot destroy a donative, because the creation thereof is by letters patent 2 jk. 541 3 Salk. 140 Mirehouse, 26 It may here be observed, that when un incumbent is made a bishop, the right of presentation in that case is in the king, and is called a prerogative presentas tion; the law concerning which was doubted in Car. II's time, but in the time of kon, Willam it was finally determined in favour of the crown 2 Bla, R. 770.

VOL. I.

52