L Des the grant A the of in in livery? CHAPTER III. OF INCORPOREAL HEREDITAMENTS. 2d. Incorporeal Hereditaments; Wherein consider Incorporeal hereditaments are rights issuing out of things corporate, or concerning or annexed to, or exercisable within the same, and must not be confounded with the profits arising from them. They are not the objects of the senses (being only rights), but merely of intellectual perception, and therefore pass, even at common law, by deed only, without livery, and for that reason are said to lie in grant; whilst corporeal hereditaments, being transferred at common law, no otherwise than by actual delivery of the possession, are said to lie in livery. (2 BI. Com. 19-20, 316.) 2o. The several sorts of Incorporeal Hereditaments. The several sorts of incorporeal hereditaments are— (1), Advowsons; (2), Tithes; (3), Commons; (4), Ways; (5), Offices; (6), Dignities; (7), Franchises; (8), Corodies; (9), Annuities; and (10), Rents; W. C. 1. Advowsons; Wherein of 15. The nature of Advowsons. Advowson (advocatio) is the right of presentation to a church-benefice. He who possesses the right is called the patron. The origin of it is that the lords of manors having built churches on their demesnes, and appointed the tithes of those manors, to be paid to the officiating ministers, which before were given to the clergy in common, had of common and of natural right the power of nominating the ministers to those churches which they themselves had thus built and endowed. (2 Bl. Com. 21.) 25. The several kinds of Advowsons in respect of their origin; W. C. 1. Advowsons Appendant. That is, advowsons annexed by prescription, to the manors whence they were originally endowed. (2 BI. Com. 22.) 2h. Advowsons in Gross. Where the property of the advowson has been once separated by legal conveyance, from the ownership of the manor, and is annexed to the person of the owner, and not to his lands. (2 Bl. Com. 22.) 3. The several kinds of Advowson, in respect to the mode of exercising the right; W. C. 1. Presentative Advowsons. Where the patron presents to the Bishop, who institutes or inducts, if upon examination he finds the candidate prepared. (2 Bl. Com. 22.) 2. Collative Advowsons. Where the Bishop is also the patron, and at once pre-` sents and institutes. (2 Bl. Com. 22.) 3. Donative Advowsons. Where the patron, though not a Bishop, has the privilege of instituting, as well as presenting, without reference to the Bishop. (2 Bl. Com. 23.) There are no Advowsons in Virginia' there being no established church. 2. Tithes; W. C. - 1. The Nature of Tithes. Tithes are the tenth part of the increase arising from the profits of lands; from the stock upon lands; and from the personal industry of the inhabitants. (2 Bl. Com. 24, &c.); W. C. 1. Prædial Tithes. Tithes of corn, grass, hops, &c. (from prædium,—a farm. 2. Mixed Tithes. Tithes of wool, milk, pigs, &c. (2 Bl. Com. 24.) 3. Personal Tithes. Tithes from profits arising from manual occupations, trades, fisheries, &c., i. e., the tenth part of the clear gains. (2 Bl. Com. 24.) At present, personal tithes are nowhere paid, except for fish cau ht in the sea, and corn-mills. (2 Bl. Com. 24, n (7).) 25. Origin of Tithes. Tithes were ordained for the support of the clergy, and of religion, before the Conquest, successively, by. Alfred, Edward the Elder, and Athelstan-(A. D. 900 to 930. See 2 Bl. Com. 25.) 3. To whom tithes are payable. At first tithes were payable to any priest the payer should designate, or to the bishop, to be by him dispensed; but afterwards, when parishes were instituted, to the parish priest. (2 Bl. Com. 26.) 4. Mode of exempting Lands from Tithes; W. C. 1h. Real Composition. A real composition is an actual arrangement made between the owner of the lands and the parson. (2 Bl. Com. 28.) 2. Prescriptive Composition,-called a Modus; W. C. 1'. Prescription de modo decimandi. Where, by the immemorial usage of a parish, or particular locality, a special manner of tithing is allowed, different from the general law of taking tithes in kind, which are the actual tenth part of the annual increase. (2 Bl. Com. 28-'9.) 21. Prescription de non decimando. Where the claim is by immemorial local usage, to be entirely discharged of tithes, and to pay a compensation in lieu of them. This privilege was originally limited to spiritual persons and corporations, as monasteries, bishops, &c., and a layman can only claim it by showing that he has succeeded to lands formerly held by a monastery; all of which were suppressed by Henry VIII. (2 Bl. Com. 31-22.) 5. Doctrine touching Tithes in Virginia. There are no tithes in Virginia, there being here no established Church. Previous to the Revolution of 1776, the Episcopal Church (that is, the Church of England), was established here by law; but the clergy were supported, not by tithes, but by taxes. By the construction of an early colonial statute, the parishes were understood to possess the right to nominate the minister to the governor, who inducted him into the living, whereby he gained a freehold estate therein for his life. It generally happened, therefore, that the vestries of the parishes declined to present the minister to the governor for induction, but kept him always, as it were, on trial, so that they could dismiss him at pleasure. Originally, the stipend allowed a minister was £80 a year, which was collected under direction of the church-wardens, by an assessment per capita upon all male whites, and all slaves of a certain age, whence the word tithables is to this day applied to the subjects of per capita assessments for the maintenance of the poor, and other county purposes. The stipend thus provided was payable in tobacco (as much the colonial currency as gold and silver), at twelve shillings a hundred, or in corn, at ten shillings a barrel. (Act of 1652, 2 Hen. Stats. 45.) Afterwards, tobacco having depreciated, it was enacted in 1748 that the minister's annual stipend should be 16,000 pounds of tobacco. (6 Hen. Stats. 88.) It was under this law (alleged to have been suspended in 1758 by an act allowing the planters to commute at 16s. & 8d. per hundred,-which, however, was expressly limited to one year (7 Hen. Stats. 240), that the claims of the clergy arose, which were the subject of controversy in the celebrated "parsons'-cause," wherein, in 1763, in the county court of Hanover, Patrick Henry achieved his first marvellous triumph of eloquence. (Wirt's Henry. 38 & seq.) 3. Common, or Right of Common; W. C.Com 1. Nature of Common. The right to a profit which a man has in the lands of another, in common with the owner of the lands, e. g. to feed his cattle thereon, to dig turf, to catch fish, to get wood, &c. (2 Bl. Com. 32; 1 Th. Co. Lit. 230, 229; 3 Kent's Com. 406, &c.) 28. Doctrine touching Apportionment of Common. In general, the apportionment may take place, with two qualifications: 1st, that it shall not lead to overcharging the land; and 2d, that it is not contrary to feudal policy. (1 Th. Co. Lit. 227–'8; Id. 229, n (Y); Id. 687.) 3. The several sorts of Common. The several sorts of common which occur frequently enough to have a specific name assigned to them are, (1), Common of pasture; (2), Common of piscary, or fishing; (3), Common of turbary; and (4), Common of estovers; W. C. 1h. Common of Pasture; W. C. 1. Nature of Common of Pasture. The right of feeding one's beasts on another's lands, in common with the owner of the lands. (2 Bl. Com. 32.) 21. Several sorts of Common of Pasture. The several sorts of common of pasture are, (1), Common of pasture appendant; (2), Common of pasture appurtenant; (3), Common because of vicinage; and (4), Common in gross; W. C. 1. Common of Pasture Appendant. In contemplating common of pasture appendant, we must note, (1), The general meaning of the word appendant; (2), The origin of common of pasture appendant; (3), Beasts commonable by virtue of common appendant; (4), Limitation to the number of beasts commonable; (5), Apportionment of common appendant; and (6), Doctrine in Virginia touching common of pasture appendant. W C. 11. Meaning of the word Appendant, in general. It means annexed to lands by prescription, in contradistinction to appurtenant, which means annexed to lands by grant or by prescription either. (1 Th. Co. Lit. 206.) 21. Origin of Common of pasture Appendant. When the lords of manors at first granted out parcels of lands to tenants, for services to be done, the tenants could not plough or manure the lands understand the without beasts, which could not be sustained with out pasture. Hence, as the grant included little, if any other than arable land, it came to be an implied incident to the grant, as between the feudal superior and his tenant, that the latter should have the right to pasture the beasts needed to plough or manure the land, upon the lord's uninclosed wastes. The right of common, in favor of the tenant, being thus annexed to the lands. granted him, by general and immemorial usage alone, is properly described as common appendant. It follows from this origin of common appendant, that it can be annexed only to arable land. (2 Bl. Com. 33; Supra, 11; Bennett v. Reeve, Willes' R. 227.) 31. Beasts Commonable, by virtue of Common Appendant. They are such as are required to plough or manure the land, as horses, oxen, &c., but not hogs, or goats; and cattle not belonging to the commoner may be included, if in his use. (2 Bl. Com. 33; 1 Th. Co. Lit. 226-'7, n's (R) and (S).) 4. Limitation to the number of beasts, which may be put on the common. As many may be pastured during the summer, as the land to which the right of common is appendant, can supply food for in the winter;-unless the custom designates some certain number. (Bennett v. Reeve, Willes, 231-2; Tyrringham's Case, 4 Co. 37 b; Id. 37 a, n (F); Benson v. Chester, 8 T. R. 396.) 5. Apportionment of Common Appendant; W. C. 1. Apportionment, by reason of partition amongst several, of the land to which the common is appendant. Whether the partition proceed from the alienation of part of the land, or from a division of it amongst several joint-owners, the common is to be apportioned to each parcel, in proportion as its produce is capable of maintaining beasts in winter. (1 Th. Co. Lit. 228; Bennett v. Reeve, |