being presented to a deanry in that church, it was held that the king should recover the presentation to this prebend, because one and the same person cannot possess two prebends in one and the same church (g); but then it must be understood of a prebendary who is a complete member of the chapter, that is, one who has a place in the choir, and a vote in the chapter; for an archdeacon may be either a dean or prebend of that church where he is archdeacon, because as such he has no vote in the chapter (h). Formerly, a layman (Dr. Watson says) might have Whether a taken a title to a prebend (i); but now by the Act of prebend is a lay-fee. Uniformity, 14 Car. 2, c. 4, no person is capable of being admitted to any ecclesiastical promotion, who is not in priest's orders (k). The Regius Professor of Civil Law, at Oxford, formerly had the prebend of Shipton, in the cathedral of Salisbury. He was also lay rector of Shipton (7). The possessions of the dean and chapter are for the most Separate part divided; the dean having one part alone in right of possession. his deanry, and each particular prebendary a certain part in right of their prebends; the residue the dean and chapter have alike; and each of them is to this purpose incorporate by himself (m). For a prebendary, who has a distinct estate, and has also a vote in the chapter, is a corporation sole in respect of the one, and at the same time is a member of a corporation aggregate in respect of the other (n). Quare impe dit to be brought in the If the cathedral church be in one county, and the corps (body, or estate) of the prebend be in another county; a writ of quare impedit shall be brought in the county of the county where cathedral, where the office, or the foundation of the right the cathedral to the corps, is, and not in that where the corps lies (o). is. By 38 Geo. 3, c. 5, "Whereas the rents and re- How to be venues belonging to the residentiaries of the cathedral charged to the churches in England and Wales are chargeable to the land-tax. land-tax granted by this present act, and in some cases the overplus of the said rents and revenues, above such tax, repairs and other charges, is to go in shares for the maintenance of the said residentiaries, which shares are diminished by the said land-tax,” it is provided and enacted (g) Dyer, 273 (a); Ed. Vail. (h) Nels. Preb. (i) So ruled in Bland v. Maddox, Cro. Eliz. 79. (k) Wats. c. 14. (1) Dr. Phillimore was the last (0) Gibs. 174; Dy. 194 a. Prebend a sinecure. in such cases the said residentiaries shall not be further chargeable as enjoying offices of profit out of the said rents and revenues, anything herein contained to the contrary notwithstanding. It does not appear that canons or prebendaries have cure of souls in any respect; they are indeed for the most part instituted, but not to the cure of souls (p). So that a prebend and a parochial benefice are not incompatible; but both might under the old law be holden together, without any dispensation (q). A prebend was excepted from the operation of the statute 21 Hen. 8, c. 13, against pluralities, by the proviso of sect. 31. And for the same reason, he who takes a title to a prebend, was not thereby obliged by 13 Eliz. c. 12, to subscribe or read the Thirty-nine Articles; but otherwise, he must take the same oaths, and make and subscribe the same declarations, as other persons qualifying for ecclesiastical offices. Charge upon a In the case of Grenfell v. The Dean, &c. of Windsor (r), canonry legal, a canon of Windsor had granted the canonry and the profits, &c., to the plaintiffs, to secure a sum of money. So far as it appeared on an interlocutory application, the estates were vested in the corporation, and the canon was entitled to an aliquot share of the profits. There was no cure of souls, and the only duties were residence within the castle, and attendance in the chapel twenty-one days a-year. It was holden, upon this state of circumstances, that the security was valid, and a receiver of the profits was appointed. It was said not to fall under the principles of public policy, on which the income of a benefice, pay, pensions, &c., are holden inalienable. Residence. No prebendaries nor canons in cathedral or collegiate churches, having one or more benefices with cure (and not being residentiaries in the same cathedral or collegiate churches), shall, under colour of their said prebends, absent themselves from their benefices with cure, above the space of one month in the year; unless it be for some urgent cause, and certain time, to be allowed by the bishop. And such of the said canons and prebendaries, as by the ordinances of the cathedral or collegiate churches do stand bound to be resident in the same, shall so among themselves sort and proportion the times of the year, as that some of them always shall be personally resident there; and (p) Johns. 86. (r) 2 Beav. 544 (a.d. 1840). all such residentiaries shall, after the days of their residency appointed by their local statutes or customs expired, presently repair to their benefices, or some one of them, or to some other charge where the law requires their presence, there to discharge their duties according to the laws in that case provided. And the bishop of the diocese shall see the same to be duly performed and put in execution (s). Prebendaries and canons in every cathedral and colle- Preaching. giate church, shall not only preach there in their own persons, so often as they are bound by law, statute, ordinance, or custom, but shall likewise preach in other churches of the same diocese where they are resident, and especially in those places where they or their church receive any yearly rents or profits. And in case they themselves be sick, or lawfully absent, they shall substitute such licensed preachers to supply their turns, as by the bishop shall be thought meet to preach in the cathedral churches. And if any otherwise neglect or omit to supply his course as aforesaid, the offender shall be punished by the bishop, or by him or them to whom the jurisdiction of that church appertaineth, according to the quality of the offence (t). Dr. Godolphin says, that after the death of a preben- Profits of a dary, the dean and chapter shall have the profits (u). prebend during the But by the statute of 28 Hen. 8, c. 11, the profits of a vacation. prebend, during the vacation, shall go to the successor, towards the payment of his first-fruits. In order to reconcile which, perhaps, the distinction may be this: that the issues of those possessions which he has in common with the rest of the chapter, shall after his death be divided among the surviving members of the chapter; but the profits of those possessions which he has in his separate capacity, as a sole corporation of himself, shall be and enure to his successor (x). It was decided in an old case that no part of the revenue of the church of Canterbury is allowed to any prebend in particular, except the annual stipend of 177. 6s. 8d.; which by the 16th chapter of the statutes is to be paid to every prebendary pro corpore præbendæ suæ. The residue of the revenue is the joint property of the dean and chapter, as being an aggregate body; and no member has a right to any part thereof (y). (*) Can. 44. (t) Can. 43. (u) God. 52. (x) 7 B. & C. 113; 8 Bing. 490. (y) Young v. Lynch, Sayer's Rep. 86. Dilapidations. A prebendary leaving a house by death or cession out of repair, he or his executors shall be liable to a suit of dilapidations, though it was not annexed to the prebendal stall. This was declared in the Court of King's Bench, in the case of Dr. Sands against the executors of his predecessor, the residentiary prebendary in the church of Wells, where the bishop appoints to each prebendary what house he thinks fit. For although the house is not parcel of any particular prebend, it must be assigned to some particular prebend, and when it is so assigned it is part of the prebend, and shall be liable to a suit for dilapidations. Wherefore in this case the court refused to grant a prohibition (z). Their dependence on the bishop. Making of statutes. Grants made to them. In a case from the church of Ely, it was decided that an action on the case for dilapidations of a prebendal house, may be maintained at common law by a succeeding prebendary against his predecessor who had resigned. But as it appeared by the statute, that the receiver of the chapter ought to require the prebendaries to repair their houses, furnishing the necessary materials from the funds of the church, and he had neglected to do this, the plaintiff recovered from his predecessor only the expense of workmanship, the court being of opinion that the materials ought to be furnished him by the church (a). By degrees the dependence of the dean and chapter on the bishop, and their relation to him, grew less and less; till at last the bishop has little more left to him than the power of visiting them, and that very much limited: and he is now scarcely allowed to nominate half of those to their prebends, who all were originally of his family (b). Nevertheless, the dean and chapter may not alter the ancient and approved usages of their church, without consent of the bishop; and if they do, such innovations are declared void by the canon law (c). A statute made by a dean and chapter to bind their successors, and not themselves, is void, and so declared by the canon law; forasmuch as it is not equitable that a man should lay that burden upon another, which he will not bear himself (d). It seems that at the common law, by the gift or grant (*) Gibs. 174; Skin. 121. (a) Radcliff v. Doyley, 2 T. Rep. 630. See the decision as to a vicar-choral, Gleaves v. Parfitt, 7 C. B., N. S. 838; supra, p. 161. (b) Johns. 54; Rolle's Abr. 229; 1 Burr. R. 567. (c) Gibs. 174; see, too, 1 T. R. 405; 7 East, 159. (d) Garnett v. Gordon, 1 M. & S. 205. of lands to the dean and chapter, as a corporation aggregate, the inheritance or fee simple may pass to them without the word successors; because, in construction of law, such body politic is said never to die (e). of the spiritualties. The dean and chapter of common right are guardians of How far they the spiritualties of the bishopric during the vacation, are guardians although the archbishop now usually has that right by prescription or composition: but when the archbishopric is vacant, the dean and chapter of the archiepiscopal see are guardians of the spiritualties throughout the province (ƒ). own body to a Under the old law Dr. Watson said, if a corporation Presentation do present their head, as if the dean and chapter do of one of their present the dean to a benefice, it is void; but if they benefice. present one of their prebendaries, it is good (g). their lands The surrender of the lands and possessions of a dean and Why the chapter does not dissolve the corporation. This was de- surrender of clared in the case of the dean and chapter of Norwich, does not diswho having conveyed their lands to King Edward VI., solve the and being incorporated anew, and their lands regranted, corporation. made a lease by their old name; and it was adjudged to be a good lease, because notwithstanding the said conveyance of the lands, the old corporation of King Henry VIII. remained. The reason of which was, that the two principal ends, for which deans and chapters were instituted (the first to advise the bishop in spiritualties, the second to restrain him in temporalities), might well be answered by them, though they had no temporal possessions (h). So, if the corps of a prebend is a manor, and no more, if the manor is recovered from him by title paramount, notwithstanding such recovery the person remains a prebendary of the church, because he has a stall in the choir, and a voice in the chapter (i). the new There have been many disputes concerning the deans Deans and and chapters of the new foundation, which do not appear chapters of as yet to have received a full and final determination, par- foundation. ticularly with regard to the validity of their local statutes; and then (supposing their validity) with regard also to the Their local construction of those statutes themselves in divers instances. These periods must be considered from the first erection Periods to be of the said deanries and chapters, in pursuance of the act considered. (e) God. 58. (f) God. 55. (g) Wats. c. 20. See also 1 Kyd on Corporations, p. 180, where the same law is laid down. Kyd's authority is relied upon by (h) Gibs. 173, 174; 3 Co. 73. statutes. |