are benefices presentable; but by means of vicarages endowed in the same places, the persons who enjoy them have by long custom been excused from residence; and exempt jurisdictions are not so called, because they are under no ordinary; but because they are not under the ordinary of the diocese, but have one of their own, and are therefore called peculiars (q). dignities. There is not any one particular sort of ecclesiastical of what kind preferments, that are peculiarly said to be donatives; for of benefices or some of all sorts may be donative, as well as presentative or elective. For bishoprics were donative in England after the Conquest, until the time of King John. So a prebend may be donative, as at Windsor and Westminster, in the chapels of the king, where the prebend being void, it is said that the king shall make collation of his clerk by patent, and by force thereof he shall take possession without any institution or induction. Also a benefice with cure of souls may be a donative, as was the rectory of Briery or Burien in Cornwall till a recent act (r); and so the church of the Tower of London is a cure of souls, and the king's donative (s). Yet some of these instances, and other such like, may be said to resemble donatives, rather than to be donatives, properly so called: such as the grant of the king to prebends without institution; as also, the collation of a bishop without presentation; and the nomination to perpetual curacies, which is without either presentation, institution, or induction. For these differ from donatives properly so called, which are given and fully possessed by the sole donation of the patron in writing; inasmuch as collations and royal grants are to be followed by induction and instalment; and persons nominated to curacies are to be authorized by a licence from the bishop, before they can legally officiate. Whereas possession by donation is not subject to any of these consequents, but receives its full essence and effect from the single act and sole authority of the donor as aforesaid (t). be thus may : Know ye, The form of a donation "To all to whom these presents shall come. that I, A. B. of in the county of Esquire, have given and granted, and by these presents do give and grant, to my beloved in Christ, C. D. clerk, the office or place of (g) 1 Still. 335. (r) 13 & 14 Vict. c. 76. Wats. c. 15; 2 Rol. Ab. 341, 356; 11 Hen. 4, 9; Co. Litt. 344; Cro. Jac. 63; Cro. (t) Wats. c. 15. Form of in curate [or as the case shall be] of the chapel of Or thus: (u). "To all to whom these presents shall come, A. B. of in the county of Esquire, lord of the manor of with The grant of a donative being once made, creates a right as full and lasting as institution and induction; that is, a right not to be taken away but by the resignation or deprivation of the donee; the resignation was made to the donor, and the deprivation under the old law was made by the donor likewise; both the church and the clerk being exempt from ordinary jurisdiction. To this purpose it is, what we find in the reports of Sir John Davis, that a donative cannot be granted for years or at will only, because this great inconvenience would follow, that the freehold might be in perpetual abeyance; which is an inconvenience that the law will not suffer (y). Although a clerk upon whom a donative is bestowed does not gain possession by presentation, institution, and induction, yet he is obliged, in order to preserve and maintain his possession, to be qualified and to qualify (u) Ecton, 459. (y) Gibs. 819; Dav. 46. himself in many things, as others do who are presented, instituted, and inducted; as, (1) He must be a priest, without which, by 14 Car. 2, c. 4, s. 10, no person shall be admitted to any ecclesiastical promotion. (2) He must, under the law till quite recently, have taken the oath of allegiance and supremacy before he takes the donation; and this he must have done before such person who has authority to admit him thereunto, that is, his patron, by 1 Eliz. c. 1, s. 10. But this it seems he need not now do (a). (3) He must also, under the old law, before his admission to be incumbent or have possession of his donative, have subscribed before the archbishop, bishop or ordinary of the diocese (or their vicar general, chancellor or commissary respectively), the declaration of conformity to the liturgy of the Church of England as by law established. And if the donative had a parish church belonging to it, he must have had a certificate under the hand and seal of the person before whom he subscribed, to be read by him in such church afterwards (b). This statute, however, has now been repealed; and it appears that donatives are not comprehended under the new act of 28 & 29 Vict. c. 122. (4) And he ought, under the old law, to read the morning and evening prayers in his church or chapel within two months after he shall be in the actual possession of his donative, or in case of impediment (to be allowed of by the ordinary), then within one month after such impediment removed; together with the form of giving assent and consent thereunto. But this, again, has been repealed. In the case of Powel v. Milbank, on an action for money had and received to the plaintiff's use, the defendant pleaded the general issue, and a verdict was given for the plaintiff, on the following state of the case. William Jolyffee and Eleanor his wife, in right of the said Eleanor, nominated and appointed the plaintiff, on the 17th of June, 1770, to the donative of Chester-le-Street, in the county and diocese of Durham, with cure of souls. The plaintiff was then in priest's orders, and had subscribed the Thirtynine Articles, and the three articles in the 36th canon, at the time of his ordination; but did not prove, at the trial of the cause, though required so to do, that he subscribed the articles before the bishop; nor that he had publicly read the same in the church of Chester-le-Street aforesaid, (a) See p.315, n. (a), supra. (b) 14 Car. 2, c.4; see 15 Car. 2, c. 6, s. 5. P. VOL. I. Y Donative within the statutes of simony and plurality. Lapse. with declaration of his assent to the same; nor that he had subscribed the declaration in the statute of 14 Car. 2, c. 4, since his nomination to the donative; nor that he had any licence from the bishop to preach in the said church. In the argument of this cause two questions were made: first, whether an incumbent of a donative with cure is obliged to conform to the statutes of Elizabeth and Charles II.; and secondly, whether in this action it was necessary for him to give evidence that he had performed the several requisites contained in these statutes. As the court gave their opinion on the second question, that he was not obliged to give such evidence, unless some proof had been made by the defendant to raise a doubt whether he had subscribed or not, they did not give a judicial determination upon the former point, but strongly inclined that donatives, with cure of souls, are within all the reasons, religious as well as political, upon which the acts of uniformity are founded, and seemed to think that this had been settled long ago, in the case of Carver v. Pinkney, M. 13 Car. 2, as reported in 3 Lev. 82; Bla. Rep. 851 (c). Donatives are within the statute against simony (d). And where they have cure of souls, they were likewise within the old law against pluralities (e). If the patron of a donative do not nominate a clerk, there can be no lapse thereof, unless it be so specially provided for in the foundation; but the bishop may compel him to do it by spiritual censures (f). But if it is augmented by Queen Anne's Bounty, it will lapse in like manner as presentative livings. (c) This case is more fully reported in 3 Wils. 355, where the court was unanimously of opinion that the plaintiff having proved that he was in priest's orders, and duly appointed to the donative, the other requisites should be presumed to have been performed, no proof having been offered to the contrary; for which presumption were cited, Monke v. Butler, 1 Rol. Rep. 83, and Clayton, Pl. of Ass. 48. In this case no objection was made to the trial of the right by the action for money had and received, and the advowson was stated to be donative by the special case, so that the Court of Common Pleas, proceeding on the above-mentioned presumption, gave judgment for the plaintiff. But in a former trial between the same parties, in the King's Bench, Lord Mansfield was of opinion, upon the evidence, that the benefice was not a donative but a perpetual cure, and that the licence of the bishop was necessary to give the plaintiff possession, without which he could not maintain an action for money had and received of the profits of his office. So that judgment was then given for the defendant, who had been licensed by the bishop, and was in possession of the curacy. 1 T. Rep. 399. (d) Deg. p. 1, c. 13. Said to be so resolved in Carver v. Pinkney, 3 Lev. 82. (e) Deg. p. 1, c. 13. (f) 1 Inst. 344; Gibs. 819; Yelv. 61, Fairchild v. Gayer. ordinary's Lord Coke says, if the king doth found a church, hos- How far expital or free chapel donative, he may exempt the same from empt from the ordinary jurisdiction, and his chancellor shall visit the same. jurisdiction. Yea, if he do found the same without any special exemption, the ordinary is not, but the king's chancellor, to visit it. And as the king may create donatives exempt from the visitation of the ordinary, so he may by his charter license any subject to found such a church or chapel, and to ordain that it shall be donative and not presentative, and to be visited by the founder and not by the ordinary. And thus began donatives in England (he says), whereof common persons were patrons (g). But the register supposes a royal foundation, and not a mere royal licence; and that it must be proved to be ancient too, and therefore a new licence will not come up to the register (h). However, it is certain that the ordinary could not under the old law visit a donative, but the patron must visit the same, by commissioners to be appointed by him (¿). And by consequence a donative was freed from procurations (k). And the incumbent was exempted (Dr. Gibson says) from attendance at visitations (7). And it was said that if the bishop shall take upon him to visit a donative, and deprive the incumbent, he runs himself into the danger of a præmunire (m). And in such case was Barlow, bishop of Bath, in the time of King Edward VI., and was forced to get a pardon, for having deprived the dean of Wells, which was a donative by letters-patent from the king (n). But although the ordinary had not power as to the place, so as to regulate seats in that church or the like, yet he had power as to the parson, if he commits any misdemeanor, to proceed against him by spiritual censures, as in the case of Colefatt v. Newcomb; where a minister of a donative was sued in the ecclesiastical court, for that when he read prayers, he did not read the whole service, but left out what part of it he thought fit; and for preaching without licence. And it was moved for a prohibition, upon a suggestion that the church was a donative, and argued that donatives were exempt from the jurisdiction of the ordinary, and that it was a lay thing, and the bishop could not visit it; and that if the incumbent was guilty of |