But if the second presentment is obtained by fraud, and in deceit of the king, the first presentment remains good; as, if the king presents a person who, being refused by the ordinary, brings his action pending which another gets presented by fraud in deceit of the king, without any mention of the king's pleasure to revoke the first presentation, even though the ordinary institutes this last person, and causes him to be inducted, the presentment of the former is not void, nor the church so full but that he may be admitted; for if the second presentation was good, it would enure to a double intent, namely, to take away the action attached, and also a presentment which the law will not tolerate without express words purporting the same. (')

SECTION II.

Who may present to advowsons.

On Presentations by common Persons.

ALL persons seised in fee, in tail, or for life, or possessed of a term for years of a manor to which an advowson is appendant, or of an advowson in gross, may present to a church.

(1) Green's case, 6 Rep. 29.

This right of presentation descends by course To whom of inheritance from heir to heir, as lands and the right of presentation tenements; unless the church becomes vacant descends. in the lifetime of the person seised of the advowson in fee (1), when the void turn being then a chattel, it goes to the executor. 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. (2)

4

tron and in

presents.

If the same person is both patron and incum- Where same bent, and he dies, though the presentation is thus person pasevered from the advowson, and vested in the cumbent executor, yet the heir presents, as in this case dies, the heir the two titles commence at the same instant, and though the avoidance is vested in the executor, yet the eldest title is preferred, and the advowson descends to the heir. (3)

bent may

Nevertheless if he who is both patron and in- But patron cumbent, devises or gives authority by his will and incumto three executors, or to either of them, to pre- devise the sent such a person, this is a good devise, for presentation. though the church becomes void by his death, and the will is then to take effect, the presentation resembling, as it is said, a flower fallen, and a thing

(1) Doctor and Student, | Winchester, 3 Lev. R. 47. ch. 26. 191. 1 Inst. 388. a. Harris v. Austen, 3 Bulstr.

(2) 1 Burn's Eccl. L. 139. | R. 47.

(3) Holt v. The Bishop of

Presentation by husband as tenant by the curtesy.

in action, and so not grantable, yet the devise is not void, for it had an inception in the lifetime of the testator; and it may be compared to a lease made upon condition that the lessee shall not alien it in his lifetime; he devises it to another, and dies: this devise is no breach of the condition, because it was only begun, but did not take effect, whilst he was living. (')

If a feme has an advowson, or part of an advowson to her and her heirs, and marries, the husband must present jointly with his wife in both their names, during the coverture; but having issue by her, though the right of patronage, so far at least as it was in the wife, descends to her heir, even if the wife never presented, but died before the church voided, yet the right of presentation during the husband's life is lodged in him, as tenant by curtesy; for though the wife has but a seisin in law, she can by no industry attain any other seisin, et impotentia excusat Where the legem. Moreover, if the church in this case bepresentation comes void during the life of the husband, and descends to the hus- he dies before presentation, the heir will not have the turn, but the husband's executor (2); but if the church is void, and the wife having no issue, so that he is not tenant of the curtesy, yet

band's executor.

(1) 1 Leon. 205. Harris v. Austen, 2 Rol. Rep. 214.

(2) 1 Inst. 29. a. 120. a. 166. b. 388. a. Wats. Cl. L.

ch. 9.

75.

he may present to the void turn, that being a chattel. (1)

If, however, a man and his wife join in a presentation to which they have no right, this gains nothing, for the wife is at the will of her husband, and so it is but the act of the husband. (2)

dower.

Where a husband seised of an advowson dies, Presentation leaving a widow, the heir has two presentments, by wife for and the wife the third, even if the husband in his lifetime had granted away the third turn, or if he was tenant in common of the advowson: as the moieties descend to the several heirs, the wife shall be endowed, and have her presentation, that is, she may in a proper action recover the third presentation as her dower, or it may be assigned to her for dower; but without such recovery or assignment, the wife cannot make title to the advowson, or to any presentation, any more than she can enter by her own authority into any other lands or tenements to which she hath right of dower. (3)

nants.

Where an advowson is held in joint tenancy, Presentation all the joint tenants must concur in the present- by joint teation; and if they present several clerks, the bishop may admit which he pleases; or if one

(*) 1 Inst. 388.

(2) Hitchcocke v. Hitch

cocke, March. R. 90.

(3) 1 Inst. 37. b.

When one

presents.

only presents, the ordinary may refuse to admit such presentee, unless they join in the presentation, and collate, if they do not agree by the proper period. (1)

Nevertheless, if the clerk of the one is adjoint tenant mitted and instituted, on account of the privity that is between them, this shall not put the other out of possession, since there is an unity of title, or they all claim under one title (2); and consequently if the joint tenant who presented, dies, this presentment will serve for a title in a suit brought by the survivor. (3)

Joint tenants may make partition to present by

turns.

But joint tenants of an advowson may make partition to present by turns, which will divide the inheritance aliquatenus, and create separate rights; so that the one shall present in the one turn, and the other in the other, which is a sufficient partition; for partition of the profits is a partition of the thing, where the thing and the profits are the same. It cannot make two advowsons out of one, but it can create distinct rights to present in the several turns; and in this case each of the parties is said to have advocationem

(*) 1 Inst. 186. b. Doc-| R. 415. Wilson v. Kirkshaw, tor and Student, ch. 30. 199. 1 Ves. R. 413. Degges, P. C. ch. 3. 19. Attorney General v. Scott, 1 Ves.

365.

(2) 1 Inst. 243. a.

(3) 1 Inst. 186. b.

2 Inst.