to hold is restored to the right owner who ought to have it, the words shall be taken most strongly against the king, and his prerogative shall not hold place, nor shall he be more favoured than any other person ('), no one suffering any prejudice thereby. (2) Besides in such cases, the law presumes the king is informed of his right, and therefore in judgment of law such words are equivalent to an express mention of the advowson which the statute requires. (3) On the other hand, although it be competent to the crown to grant restitutions, that can only be done where things remain in statu quo, but not so as to affect legal rights properly vested in third persons. (*)

The statute de prærogativa regis manifestly does not apply to cases where the king is to take and not dispose of the advowsons, as if he seize a manor for a forfeiture, the advowson passes though not named in the inquisition.

Besides the rules of construction which are adopted in respect of grants of the crown in general, and the particular restrictions imposed in this respect by the statute de prærogativa regis, it is necessary to bear in mind the legislative enact

(1) Per Dyer, C. J. in Willion v. Berkley, Plowd. R.251. Com. Dig. tit. Adv. c. 1. (2) 3 Inst. 241.

(3) Whistler's case, 10 Rep.

64. b.

(4) The King v. Amery, per Ashurst J. 2 T. R. 569. Colt v. Glover, Hob. R. 140.

ments concerning grants of all species of crown property by 1 Anne, st. 1. c. 7. s. 5. and as to the king's private property, 39 & 40 Geo. 3. c. 88. and of lands acquired by escheats or forfeiture 47 Geo. 3. c. 24.

SECTION V.

On Grants of Avoidances.

As the right of patronage in an advowson may Right of papass by the grant of the patron, so the right of tronage in presenting to an avoidance, to the next or sub- subsequent

the next or

avoidances

quent avoidances, or to as many as may occur of advowwithin a limited period may be conveyed by the sons. same means (1)

Avoidances are of two kinds, either in fact or Avoidances of two kinds. in law.

An actual avoidance is when the church is Avoidance in deed. actually in deed, such as from death of the party, destitute of an incumbent.

in law.

An avoidance in law is, when the church being Avoidance full of an incumbent, it is notwithstanding frustrate of its right and lawful incumbent, by reason of incapacity or crime in the person of him that

(1) 1 Inst. 249. a. Throck- | 150. Crisp's case, Cro. El. morton v. Tracy, Plowd. R. 164.

An actual vacancy can never be

occupies instead of the rightful and lawful incumbent; such as by resignation, plurality, deprivation, incapacity, union, or simony.

But neither in the case of an avoidance in deed or in law, can a grant of the actual vacancy granted by a be made by a subject, though it may by the subject. crown, nor can it be released by one joint tenant of the next avoidance to another, after the vacancy; although where a person is patron and incumbent he may devise the next presentation; and if a person seised of an advowson of a church, of which he is likewise incumbent, devises the next presentation to his executor, this it is said is a good devise by privity of law, and the executors shall have it, as it does not take place until the avoidance happens. (1)

Manner of

An avoidance being a part of the advowson, must be by which is incorporeal, must be conveyed by

conveyance:

deed.

Construc

tion of grants

of avoid

ances: spe

cification of avoidance granted.

deed.

The avoidance granted must be a future avoidance; the avoidance must be specified; and if the grant of that avoidance be unavailable, through a prior act of the grantor, the grant will not serve for another avoidance; as, if a person grants the next presentation to one, and afterwards, before avoidance, grants the next present

(1) Stephens v. Wall, Dy. R. 282. b.

ation to a second, the second grant is void, having been granted by the grantor before, and the second grantee shall not have the second presentation, as the grant does not import it, all here being the act of the party, and every grant being defeated by an elder title. (') In like manner if an abbot and convent having a church appropriate to the abbey in succession, grant the next avoidance of an advowson, this is a void grant, because there is no advowson in esse to grant, the advowson being merged in the abbey. (2)

Where, however, a church is void, and a grant of the next avoidance is made, the grant extends to the next that falls after the church is filled, and not to the present turn, ut res magis valeat, quam pereat.

how extend

But a grant of the second avoidance may, in a Words of special case, be available after two inductions and specification, institutions; as if one hath the grant of a second ed. avoidance, and he that hath the grant of the first avoidance presents on a simoniacal contract

(1) 1 Inst. 379. a. Williams v. The Bishop of Lincoln, Cro. El. 790.

(*) Saville's R. case 51.

* By statute, 12 Ann. ch. 12. If any for money, reward, or promise, &c. directly or indirectly take, procure, or accept a grant of the next avoidance in his own or another's

though his clerk be instituted and inducted, and the king afterwards presents on his title of simony, and his clerk be also instituted and inducted; yet this will not prevent him that hath the second avoidance from presenting when the church shall be void of the king's incumbent, because the institution and induction of the clerk of him that hath the first avoidance is void, and the king presents as to his turn, and so only bars the grantee of the first avoidance from presenting again, and not the other when the king's right is satisfied. (1) So a grant of the first presentation will not be inoperative where, from a subsequent event, a prærogative right precludes the grantee from the literal enjoyment of his grant; as if, after a grant of the next presentation to a living, the incumbent be made a bishop, by which the living becomes vacant, and the king is entitled to present, the grantee may present on the next vacancy, occasioned by the death or resignation of the king's presentee; for here the whole title being by law subject to a prerogative presentation, paramount or rather collateral to it, it suspends the effect of its being productive for a time, and the general law of the land will not

(1) Winchcombe v. The | R. 165. Wats. Cl. L. ch. 10. Bishop of Winchester, Hob. 93.

name, and be presented, collated, instituted, or inducted to any such ecclesiastical living, &c. it shall be void, and the king may present as on any simoniacal contract.