Charge when not enforceable. Redemption of mortgages. Advowsons. Species of. land itself, but with regard to charges upon land. . . A charge upon land, when the title to the land has been barred, would seem to be incapable of being enforced (u). The redemption of mortgages of land and rent is the subject of a separate provision (x), which, however, does not, in terms, embrace mortgages of advowsons. And this provision contemplates ordinary mortgages only, where the equity of redemption is asserted as a mere equity against the right of a mortgagee in possession, whose right has become absolute at law, and is inapplicable to cases of absolute conveyance with a privilege for the grantor to repurchase the property (y). The remaining incorporeal things to which the 3 & 4 Will. 4, c. 27, is applied are advowsons of ecclesiastical benefices, and as well in Ireland, after 1843 (z), as in England, but not in Scotland (a). Advowson, advocatio (b), is a generic term, and the meaning of it has been already shown (c). Advowsons are of several species, as of churches (d), of hospitals and other houses (e), of prebends(ƒ), which although held by a spiritual person have not of necessity cura animarum (g), and the like; and are either presentative, collative, donative, or elective (h). (u) 2 De Gex, M. & G. 597. (y) See Alderson v. White, 3 (z) 6 & 7 Vict. c. 54. (a) Sects. 30, 31, 32, 33, 44. (d) 13 Edw. 1, stat. 1, c. 5; 17 (e) 13 Edw. 1, stat. 1, c. 5, s. 4; Co. Litt. 342 a; God. Repert. Can. 208; Att.-Gen. v. Ewelme Hospital, 17 Beav. 465; Att.-Gen, v. St. Cross Hospital, Ib. 435. (f) F. N. B. 32 H. (g) See 7 B. & C. 189; 8 Bing. 551. (h) Co. Litt. 119 b; 344 a; Att.-Gen. v. St. Cross Hospital, supra; Att.-Gen. v. Ewelme Hospital, supra; Co. Litt. 342 a. The advowsons of hospitals and other houses and the Lay. like, of sinecures, sine cura animarum, although the master, principal or other person the head of them, be a spiritual person, are not, on that ground, spiritual, but mere lay foundations (i). The advowson of a church, advocatio ecclesiæ, always Spiritual. intends a parsonage (k). But there are advowsons of Presentative. vicarages, of prebends, and of chapels (1). These advowsons are the right of a person to present, or to collate or confer on, a clerk selected by himself (m), or to nominate a clerk to be presented, or, in the case of a donative, to be appointed (n), by another person (o); and are so called because the right of presenting to the church was first gained by such as were founders, benefactors, or maintainers of the church, who were called advocati and patroni (p), as having the gift of a benefit (g), and thereupon the advowson is called jus patronatus (r). Advowsons of ecclesiastical benefices donative differ, Donatives. in several important particulars, from those which are presentative. In general, without some evidence expressly showing an ecclesiastical benefice to be donative and exempted from the jurisdiction of the ordinary, the benefice will not be taken to be of that nature (s). The origin of donatives is involved in obscurity and Origin of. uncertainty (t). Their nature, however, is, in general, well understood. They are ecclesiastical benefices (u), have all the properties of such benefices, especially (i) Co. Litt. 342 a; Att.-Gen. v. Ewelme Hospital, supra; Att.Gen. v. St. Cross Hospital, supra. See also 7 B. & C. 189; 8 Bing. 551. (k) F. N. B. 32 H. (0) Plowd. 528; Shirley v. Underhill, Moo. 894; Reg. v. The L. Trustees of Orton Vicarage, 14 (P) God. Repert. Can. 205. (u) Wat. Cler. Law, 171; God. A A Perpetual curacies. Two classes of. when with cure of souls (x), are within the statute of simony, though that statute speaks of presentation only (y), are ecclesiastical promotions within the 7 Ann. c. 18, are not presentative, but may become so (z), may be resigned to the donor or patron (a), and when vacant at the death of the patron the right of nomination thereto belongs, not to his executor, as in the case of a benefice presentative (b), but to his heir (c), and vest in the incumbent by the mere appointment of the patron without institution or induction (d); and such appointment is, or amounts to, the same as presentation, institution and induction to a presentative benefice (e), and is said to be a collation or conferring thereof, as in the case of the collation or conferring by a bishop (ƒ). Perpetual curacies are also said to be quasi donatives (g), but not ecclesiastical benefices (h), and the nomination thereto, like donatives, is without presentation, institution or induction, and the curate is only admitted thereto (i), and, without the licence of the bishop, is not in possession (k), and cannot officiate therein (7). These curacies, however, are ecclesiastical promotions within the 7 Ann. c. 18. These curacies may be divided into two classes, those which have a place of divine worship and parochial rights, (a) 3 Wils. 365. (y) 3 Lev. 83. (z) Co. Litt. 344 a; Farchild v. Gayre, Cro. Jac. 63; Reg. v. Foley, 2 C. B. 664. (a) Co. Litt. 344 a; Farchild v. Gayre, Cro. Jac. 63. See Rennell v. The Bishop of Lincoln, 7 B. & C. 158. (b) F. N. B. 33 P.; Co. Litt. 249 a, 378 b. (c) Repington v. Tamworth School, 2 Wils. 150; 7 B. & C. 161, 175, 188; 8 Bing. 518; 3 Bing. 232. (d) Powell v. Milburn, 3 Wils. 355, 365; 1 T. R. 403; 7 B. & C. 160. (e) Per De Grey, C. J., 3 Wils. 363. (f) Yelv. 60; Wat. Cler. L. 170; Degge's Par. Coun. 204; F. N. B. 33 E, 35 E, 37 D; 7 B. & C. 161; 3 Bing. 278. (9) Wat. Cler. Law, 172. (h) Weldon v. Green, 2 Burn's E. L. 55. (i) See Cooke v. Elphin, 5 Bli. N. S. 128; London v. Derry, 1 Smythe's Ir. Rep. 517. (k) 1 T. R. 401, n. (1) Wat. C. L. 172; 3 Keb. 614. be especially those of baptism and sepulture, and the incumbent of which is not removable at the pleasure of the person nominating him (m), and attends visitations (n); and those which have become so on the augmentation thereof by Queen Anne's Bounty, under the 1 Geo. 1, c. 10 (o), and these last have been held to be neither parsonages nor vicarages, within the 21 Hen. 8, c. 13, s. 26 (p). The 1 Geo. 1, c. 10, however, merely turns the land into a benefice, and makes the endowment indefeasible (q), in order that such curates may perpetual corporations (r). "But," said Lord Denman (s), "a perpetual curate appears to be a vicar, for he serves the church in that capacity. Jenkinson v. Thomas certainly seems opposed to this view, but the court was there construing a penal statute." In the same case Littledale, J., said, “he is not vicar by name but he is so in effect, and though in fact standing in the place of, cannot be more than a vicar." Williams, J., also said, "he either comes within the denomination of vicar or does not come at all within the enabling words of section-1 of 32 Hen. 8, c. 28." And Coleridge, J., also, said, "the history of the office of perpetual curate shows that he is a kind of vicar performing ministerial duties, and nothing more; and whether or not, when the curacy is augmented by Queen Anne's Bounty, he holds in fee, he has no inheritance in right of his church." In Mason v. Lambert (t), the court said, a perpetual curate, irremoveable at the will of a rector, (m) Att.-Gen. v. Brereton, 2 Ves. 425. See also Perne v. Oldfield, 2 Chan. Cas. 19; Price v. Pratt, Bunb. 273. (n) Powell v. Milbank, 1 T. R. 399, n. (0) See Arthington v. The Bishop of Chester, 1 H. Bl. 418; Rex v. The Bishop of Chester, 1 T. R. 396; Jones v. Ellis, 2 You. & Jer. 265; Doe d. Richardson v. Thomas, 9 Ad. & E. 556; Doe d. Brammall v. Collinge, 7 C. B. 939. (p) Jenkinson v. Thomas, 4 T. R. 665. (4) Per Coleridge, J., 9 Ad. & E. 575. () Per Lord Kenyon, C. J., Jenkinson v. Thomas, 4 T. R. 665. (s) Doed. Richardson v. Thomas, 9 Ad. & E. 556. (t) 12 Q. B., N. S. 802. See also 2 Ves. 428. Augmented curacies, when benefices presentative. Whether dona petual curacies within c. 27. and endowed, cannot be better described than by the general term, vicarius (u). In relation to the law respecting pluralities of benefices, however, these augmented curacies were made benefices presentative, but not in other respects (x), and are so by the subsequent statute on this subject (y). Considering the nature of these preferments, donatives and per- tives and perpetual curacies, and the authorities here noticed in relation thereto; that a writ of right of advowson, and of quare impedit, lies as well de advocatione capellæ, including donatives, as de advocatione ecclesiæ, which always intends a parsonage (z); and that neither the former of these writs, except in certain cases (a), nor the latter (b), can be now brought; the doubts which have been entertained and removed, respecting the collation to churches by bishops, may be found to be well grounded as respects the collation and the nomination to these preferments also. Benefices above rectories But whether advowsons of donatives and of pernot within it. petual curacies be or be not within the c. 27, advowsons of ecclesiastical benefices of a higher grade than rectories are not within the words "other ecclesiastical benefice" there used (c). In all the sections, indeed, relating to advowsons, after the first of those sections (d), the terms are "ecclesiastical benefice" only. But the context shows that only advowsons of those benefices expressed in such first section are intended. Usurpation at common law, At common law usurpation of an advowson displaced the title to it and turned that title into a naked right (e). (u) See also 3 Bing. 262. (2) F. N. B. 31 C, 32 H, 31 D. (b) 23 & 24 Vict. c. 126, s. 26. (c) Sect. 30. See The Archbishop of Canterbury's case, 2 Co. 46 b; Lowther v. Lord Radnor, 8 East, 115; Doe d. Meyrick v. |