Page images
PDF
EPUB

applied in building a parsonage, augmenting the living, repairing the church, erecting schools and chapels of ease, and in aiding the poor rate, &c. (n). In non-established churches

. the right of presentation is not usually a subject of private property ; it is generally vested in trustees under the trustdeed regulating the affairs of the particular congregation or in the governing body ().

Under the New Parishes Acts, the Ecclesiastical Commissioners are empowered to assign the right of nomination to the incumbency of a new district in return for an endowment of not less than 1501. a year; but until assigned, the patronage belongs to her Majesty and the bishop alternately (p). Such an assignment is not simoniacal (9). The Commissioners can also exchange or transfer an advowson in order to make better provision for the cure of souls (r). The Lord Chancellor also has power to sell advowsons in order to augment livings in his gift (s).

Who may present ?-All those who are solely seised in fee simple, fee tail, or for life, or possessed of a term of years of a manor to which an advowson is appendant, or of an advowson in gross.

As a general rule one joint tenant, tenant in common, or trustee cannot present; all must join (1). A surviving trustee may present, but the trust ought to be filled up (w). Where coparceners cannot agree to present jointly, the eldest sister has the first turn, the second the next, and so of the rest, and this rule extends to their grantees (x). Joint tenants and tenants in common can obtain a right to present in turn by a partition (y), but in their case the order of presentation is settled by drawing lots (~). Where the right of presentation is vested in trustees for a parish, the rules laid down in the trust deed or scheme must be followed; thus, in the case of the vicarage of Leeds, the advowson of which was purchased by voluntary subscription, and afterwards by a Chancery decree, the right of election and presentation was vested in twenty-five trustees; it was held that, although the decree directed the election to take place within four months, it could be made after ; that the trustees could not depute proxies to vote for them at the election, and that such voting rendered the election void; that proper notices must be given to enable all the trustees to be present; that if there is a vacancy among the trustees it should be filled up before the election ; and that after the election has been regularly held, all the trustees in person or by attorney must sign the presentation (a); but if either of them refuses, his concurrence can be dispensed with in a proper case (b). In some cases the general body of the parishioners elect; but, as Lord Hardwicke said, this is the worst way of nominating (c).

(n) 19 & 20 Vict. c. 50, ss. 1, 2, 9; and generally on this subject, see Lewin on Trusts, pp. 85 et seq.,

and Tudor on Charities.

(0) See Constitutions of Church of Ireland.

(P) See PARISH.
() 32 & 33 Vict. c. 94, ss. 12, 13.
(v) 33 & 34 Vict. c. 39, 8. 1.

(s) 26 & 27 Vict. c. 120.
(t) 3 Cruise, t. 21.

(u) Att.-Gen. v. Lichfield (1801), 5 Ves. $25.

(x) 3 Cruise, t. 21, 26.
(y) 7 Anne, c. 18, s. 2.

(z) Johnstone v. Baber (1856), 25 L. J. N. S. 899.

Formerly, where a married woman was entitled, the husband presented in his own name and that of his wife, and it would seem that the Married Women's Property Acts have made no change (d).

Infants of any age may nominate or present, and where too young to write, the guardian guides his hand (e). It seems that the guardian himself cannot present (.f). An infant cannot sell (g). Papists and aliens may be the owners of advowsons, but they cannot present or nominate (). The patronage of papists in England and Wales, unless sold, goes, as

.

(a) Att.-Gen. v. Scott (1749), 1 Ves. Sen. 413; Wilson v. Dennison (1749), Amb. 82.

(b) Att.-Gen. v. Cuming (1843), 2 Y. & C.C.C. 139; and see Att.-Gen. v. Parker (1747), 3 Atk. 577; and Shaw v. Thompson, ubi inf.

(c) i Ves. Sen. at p. 418; and see Shaw v. Thompson (1876), 3 Ch. D. 233, at p. 242.

(d) Compare ALIEN.

(C) Hearle v. Greenbank (1749), 3 Atk. 710 ; Simpson on Infants, 82.

(f) Co. Litt. 17 b; Simpson, 194.

(9) As to provisions for selling infant's property, see Settled Estates Act, 1877 ; Conv. Act, 8. 41; and Settled Land Act, 1882, s. 59; and see also Infants' Relief Act, 1874, and Simpson on Infants.

(h) 10 Geo. 4, c. 7, ss. 14–17. This extends to "joining in sentation, and see 13 Anne, c. 13; and Beyer v. Norwich, (1891) in Arches Court, rep. in daily papers of 26 Nov. 1891.

a pre

to livings in certain counties, mostly southern, to the University of Oxford, and as to the remainder to the University of Cambridge (i). Where a papist is tenant in common with a protestant, or other person qualified to present, the qualified person presents alone (j). The patronage belonging to any office held by a papist (k), or a Jew (?), is exercised by the Archbishop of Canterbury. Lunatics and outlaws cannot, but bankrupts may, present.

The Sovereign, as the head and protector of the Church, is the patron paramount, and supplies the deficiencies of all other patrons. She usually presents by letters-patent (m). Although an advowson is real property and descends to the heir, if the patron dies while the church is vacant, his personal representative has the right of presentation for that turn; but if the incumbent is himself the patron, the right will devolve to his heir, and not to his personal representative for the avoidance, and the descent to the heir happening at the same instant, the title of the heir is preferred (n).

A grant of an advowson or right of presentation by any papist, or any mortgagee or trustee of any papist, is void unless made bona fide and for a full and valuable consideration to a protestant purchaser, and merely for the benefit of a protestant; and every like devise is similarly void if made with intent to secure the benefit thereof to the heirs or family of such papist (0)

Who may be presented.-A patron may present a layman or a deacon, but the presentee must take priest's orders before admission, or at any rate before institution (p). As to the cases in which the bishop may refuse to admit, see ALIEN; INSTITUTION.

AGRICULTURE, Board of. Established by Act of Parlia

(i) 3 Jac. 1, c. 5, 8. 13; 10 Geo. 4, c. 7, 8, 16.

(j) Edwards v. Exeter (1839), 5 Bing. N. C. 652.

(k) 10 Geo. 4, c. 7, s. 17.
(1) 21 & 22 Vict. c. 49, s. 4.

(m) 26 Hen. 8, c. 1; 1 Eliz. c. 1. (n) 3 Cruise, t. 21, 20.

(6) 11 Geo. 2, c. 17, 8. 5; 10 Geo. 4, c. 7.

(p) 13 & 14 Car. 2, c. 4, 8. 14; 1 Burn, 103.

ment in 1889 to take over (inter alia) the powers and duties of the Land Commissioners for England, which include all the powers and duties relating to tithes originally vested in the Tithe Commissioners or Land Commissioners (2).

ALB (Lat. tunica alba) is a short closely-fitting white linen tunic, girded, used as a vestment in the pre-Reformation Church, but now illegal (r). It was originally something like our surplice, a full flowing white robe, and, like other ecclesiastical vestments, was worn in ordinary life (8). Decorations, technically called “apparels,” were added in later times, but the white alb plain of the first Prayer Book of Edward VI. is the alba pura undecorated. The corresponding vestment of the Greek Church is called the sticharion, originally made of white linen, but now often of costly materials, and coloured. The word “surplice" does not seem to have come into use before the twelfth century, but that vestment is merely a modification, or rather the original form, of the sticharion or alb. The rochet (q. v.) is another variation.

ALIEN. Under the Naturalization Act, 1870, which is not retrospective (), real and personal property of every description can be taken, acquired, held, and disposed of by an alien in the same manner in all respects as by a natural-born British subject; and a title to such property may be derived through, from or in succession to an alien as a natural-born British subject (u). But the section does not entitle an alien to any right or privilege as a British subject, except such as are thereby expressly given to him. Therefore, although an alien can buy or sell an advowson or any presentation, it would seem that he cannot present. Before the Act he certainly could not.

(9) 52 & 53 Vict. c. 30. (r) See VESTMENTS.

(s) See Smith's Dict. of Christian Antiquities.

(t) Sharp v. St. Sauveur (1871), 7 Ch. App. 343.

(u) 33 Vict. c. 14, s. 2.

Aliens wishing to officiate in foreign countries may be ordained priest or deacon by the Bishop of London, or some bishop appointed by him, without being required to take the oath of allegiance (x). They cannot, however, officiate in England unless they comply with the provisions of the Colonial Clergy Act, 1874 (y).

The Naturalization Act does not qualify an alien to hold any office he was unable to hold before. Therefore it would seem that an alien cannot hold a benefice in England, even if episcopally ordained (:) (though there have been instances to the contrary); but foreigners or aliens of the foreign reformed churches allowed by her Majesty, if admitted to a benefice, do not incur any penalties under the Act of Uniformity (a), and this applies whether they are episcopally ordained or not.

Aliens, also, cannot be churchwardens (6).

[ocr errors][merged small]

ALMS (c) are for the poor, oblations for the minister. The collection of alms forms an integral part of the Communion Service, but there is no direction as to offertories at either Morning or Evening Prayer. It seems, however, to be not unlawful for an incumbent to make a collection for church expenses at a service other than the Communion Service, and the church wardens have no right to interfere with the moneys so collected (d). After the Communion Service is ended the money given at the offertory is to be disposed to such pious and charitable uses as the minister and church wardens shall think fit, and, if they disagree, as the ordinary shall appoint. The custom is to give them to the poor. The minister and churchwardens are to consult together as to the disposal of the collection, and it should be distributed, as all of them may resolve, with reference to the whole. It has, however, been stated under episcopal sanction that if they were to agree to

(x) 24 Geo. 3, sess. 2, c. 35, s. 1. (y) See ANGLICAN COMMUNION.

(3) 3 Ric. 2, c. 3; 7 Ric. 2, c. 12; i Hen. 5, c. 7.

(a) 13 & 14 Car. 2, c. 4, s. 15.

(8) Anthony v. Seger (1789), 1 Hagg. Cons. 10.

(c) Acts 2. 42, 6. 1; and Smith's Dict.

(d) Reg. v. O'Neill (1867), 31 J. P. 742.

« PreviousContinue »