as the church becomes void, the grantee and his heirs shall nominate to the grantor and his heirs, who shall be bound to present accordingly. In which case it was agreed by the whole court in the case of Shirley and Underhill (16 Jac.), that the nomination is the substance of the advowson, and the presentation no more than a ministerial interest; and that if the presentor shall present without nomination, or the nominator present in his own person, each shall have his quare impedit for the security of their respective rights. And if the nominator neglect to appoint his clerk till lapse incurs, and then the patron presents before the bishop collates, the bishop is bound to admit his clerk (e). It is said that if the person presenting object to the nominee on the ground of immorality, that must be tried by a jury (ƒ). Presentation must be to a void benefice. Thus in the case of Owen v. Stainoe (34 Car. 2), Owen moved for a mandamus to admit him a prebendary of St. David's, and set forth a custom that they used to choose a supernumerary (all the places being full), who is admitted upon the death of the next prebendary, and says that he was chosen a supernumerary in such a year, and that one of the prebendaries died, and that Stainoe was admitted; but the court refused to grant a mandamus, and held the custom to be void and foolish, for that there cannot be an election but to a void place (g). A presentation may be to a deanery, archdeaconry, prebend, hospital, church or chapel (h). Must be to a void benefice. Guardian by nurture or in socage of a manor, where- By an infant. unto an advowson is appendant, shall not present to the church, because he can take nothing for the presentation for which he may account to the heir, and therefore the heir in that case shall present, of what age soever (i). And of this opinion was the late Lord Chancellor King, in a cause in the Court of Chancery, in the year 1732. An infant, he said, of one or two years old may present at law, then why may he not nominate? Does the putting a mark and seal to a nomination require more discretion than to a presentation? The guardian is supposed to find a fit person, and the bishop to confirm his choice, and if (e) Gibs. 794; Mo. 894; 3 Ves. 80; Dy. 48 a; 17 Vin. Ab. 315, pl. 5; 2 Ab. Eq. 518; Plowd. 159; 3 Cruise, Dig. 4. (f) 3 T. R. 646; Rex v. Mar quis of Stafford. (g) Skin. 45. (h) 2 Roll. Abr. 342; Com. Dig. tit. Eglise. (i) 3 Inst. 156. By executors. Advowson assets for pay ment of debts. By the heir. Personal representative of prebendary presents to an advowson attached to a prebend, pre this be permitted in law, why should a court of equity act otherwise in equitable estates (k). If one be seised of an advowson in fee, and the church becomes void, the void turn is a chattel; and if the patron dies before he does present, the avoidance does not go to his heir, but to his executor (1). In presentative benefices, for the void turn of a donative, it descends to the heir (m). Robinson and Tonge. In the Chancery: Upon debate it was held that an advowson in fee was real assets in the hands of the heir for payment of debts. And the case was affirmed in the House of Lords (n). But if the incumbent of a church be also seised in fee of the advowson of the same church and dies, his heir, not his executors, shall present; for although the advowson does not descend to the heir till after the death of the ancestor, and by his death the church is become void, so that the avoidance may be said in this case to be severed from the advowson before it descend to the heir, and to be vested in the executor, yet both the avoidance and descent to the heir happening at the same instant, the title of the heir shall be preferred as the more ancient and worthy (o). If the testator do present, and (his clerk not being admitted before his death) then his executors do present their clerk, the ordinary is at his election, which clerk he will receive (p). But per Windham, J., the bishop in this case is not obliged to admit any other clerk than he who was first presented; for the presentment of the testator is not countermanded by his death (g); and the executor shall have quare impedit for a disturbance to the testator (r). It has been decided by the House of Lords, in the case of Rennell v. The Bishop of Lincoln, that where an advowson belongs to a prebendary in right of his prebend, and the church becomes vacant, and the prebendary dies without having presented, the right of presentation belongs bendary having to his personal representative. The judgment of the Court died during its of Common Pleas in this cause, delivered in Michaelmas Term, 1825 (s), was reversed by the Court of King's Bench vacancy. (k) Wats. c. 13; 2 Abr. Cas. Eq. Arthington and Coverley. (1) Wats. c. 9; Co. Lit. 388 a; (m) 2 Wils. 150; p. 325, supra. P. C. 550. (0) Wats. c. 9; 3 Lev. 47; 7 B. & C. 167. (P) Wats. c. 9; 1 Leon. 205. (9) Savile, 95. (r) Ibid. 118. (8) 3 Bing. 223. in Trinity Term, 1829 (t), (Lord C. J. Tenterden dissenting), and the last decision established by a majority of six out of eight judges in the House of Lords, in Easter Term, 1832; the six were, Bosanquet, J., Parke, J., Gaselee, J., Littledale, J., Bayley, B., Tindal, C. J.; the two dissenting were, Bolland, B., and Park, J. The opinions of Baron Bayley and Chief Justice Tindal are here given af length, as containing an excellent summary of the principles which guided the House of Lords to this very important decision. Bayley B.-"As the opinion I delivered when this case was before the Court of King's Bench is in print, and as I see no reason to vary from any of the grounds upon which that opinion was founded, I shall not be obliged to detain your lordships at any considerable length. I take the general rule, with the single exception of benefices in the gift of bishops, to be, that when a benefice becomes vacant, the right to present is immediately detached from the estate which gives that right; it vests as a mere personal power of presenting in the individual who had the right of patronage at the time that vacancy occurred, and will continue in him and his personal representatives, let what will become of the estate which gave such right. Therefore, if the right to present to an advowson appendant or an advowson in gross, when a vacancy occurs, be in tenant in fee or tenant in tail, and he die without presenting, though the estate will pass to his heir or devisee in the one case, and to the issue in tail or remainder-man in the other, the right to present will devolve upon his executor or administrator (u). If the right to present when a vacancy occurs be in tenant pur auter vie, or in a termor, and before he present cestui que vie dies, or the term expires, so that the estate which gave him the right to present is gone, that right nevertheless remains in him, and he may still present (r). Again, if husband and wife be seised in fee or in tail, or in right of dower, in right of the wife, and the church become void, and the wife die before the husband present, though the fee descends upon her heir, or the estate tail passes to the heir in tail, or the estate in dower ceases, the right to present remains in the husband (y). And if a vicarage become vacant, and the person to whom the right of presenting belong be (t) 7 B. & C. 113. (u) F. N. B. 33, P. 34, B; Co. Litt. 388; Dyer, 283 a; 21 Hen. 7, pl. 6; Bro. Present. à l'Eglise, 34. (x) F. N. B. 34, B; Bro. Pres. à l'Eglise, 22. (y) 21 Hen. 6, B; 38 Hen. 6, 36, B; 14 Hen. 4, 12; Bro. Pres. à l'Eglise, pl. 22; Co. Litt. 120. Baron Bayley's judgment upon this question. B. Bayley's judgmentcontinued. made bankrupt (whereby his right in the patronage ceases), he shall nevertheless present (z). So had Mr. Rennell been presented to a bishopric, would he have lost the right? The general rule, however, is not disputed; but its application to the present case is denied, and the ground of that denial is, first, because Mr. Rennell was a spiritual corporation, and had his right of presentation annexed to a spiritual dignity and clothed with a spiritual trust. My answer is, that though Mr. Rennell was a spiritual person, the dignity to which the right of presentation was attached was not in its creation spiritual; and that if it were, it was not clothed with any spiritual trust. Mr. Rennell's dignity was a prebend only, and at common law a layman might be prebendary (a). A prebendary has no cure of souls; he is called 'prebendary' because his duty is prebere auxilium episcopo. He has his possessions annexed to his prebend to enable him to provide for himself and his family. It is only by the restraining statutes that he is prevented from alienating, with consent of patron and ordinary, all his possessions to the disherison of his successor; and he has of himself the full power of alienating them so as to bind himself; and it is not of necessity that he should have any possessions (b). It is only under 14 Car. 2, c. 4, s. 14, that he need be in holy orders. "But admitting that a prebend were a spiritual dignity, does it follow that church preferment in the gift of the prebendary in right of his prebend, is clothed with a spiritual trust? Is the spiritual preferment to which a bishop is entitled in right of his see clothed with any spiritual trust? May he not grant away the next avoidance of any church, though the advowson be in gross, which he as bishop is entitled to fill, or as many avoidances as shall happen within his own time? and will not such grant bind himself? Watson says (c) he may make the grant and it will bind him. If an advowson be appendant to a manor usually let, and a lease be made thereof, it will, at all events, bind the bishop who made it, and his lessee shall present. Gibson (d) says, Advowsons may be granted by deed or will, either for the inheritance or one or more turns. But this extends not to ecclesiastical persons seised in right of their churches, nor to colleges or hospitals seised in right of their charter; for they are so far re (2) F. N. B. 34, N. (a) Bland v. Maddox, Cro. Eliz. 79. 30; 50 Edw. 3,26; 2 Rol. Ab. 341. (c) Watson, c. 10, p. 135, 136, c. 43, p. 873. (d) Gibson, 793. "strained by the statutes of Elizabeth, that their grants, though confirmed, will not bind their successors. But they will bind their grantors for their own times.' And if it be made conformably to the statutes, it will bind the successors (e). In Smallwood v. Bishop of Coventry (ƒ), the bishop had made a grant of the next avoidance of an archdeaconry (a spiritual dignity), and he afterwards disturbed the grantee; the grantee died, and his executor brought a quare impedit, and the bishop's grant was held good, and the executors had judgment. In Foord's case (g), a prebendary of this very church made a lease of a rectory, parcel of his prebend, for seventy years. The dean and chapter confirmed it for fifty-one years. The successor disputed it within fifty-one years. Watson says, it would have been good for his own time without confirmation (h), and all the court (except Griffin) held it good for fifty-one years. In London v. Chapter of Southwell (i), where plaintiff claimed in quare impedit as lessee of a prebend to which the advowson belonged, the question was, whether the lease had words sufficient to carry the prebend or not; and it was only because the words were not sufficient, that the decision was against the plaintiff. Presentations to a vicarage belong of common right to the parson, but by consent of patron and ordinary he may grant it to another (k). The case of Sharrock v. Boucher (1) seems to show the distinction between what is clothed with a spiritual trust and what is not; and what may be alienated and what cannot. A prebendary leased his prebend for three lives, and whether that passed the right to fill up the office of commissary within the prebend was the question: the judges agreed it did not, if the right belonged to his spiritual functions: but on that point they were divided. "The only remaining point is founded upon the rule which prevails in the case of the king and a bishop, and a supposed analogy between that case and this. When a bishop dies, leaving a church in his gift vacant, the king is to present, not the executors of the bishop. And if this rule be founded upon the spiritual character of the act of presenting, it is an authority in this case; if it be founded on the relation between the bishop and the king, and is referred to the king's prerogative, it is not. And I am of opinion it is referable to the relation between the bishop (e) Watson, c. 10, p. 137, c. 45, pp. 875, 876. (f) Cro. Eliz. 207. (g) 1 Anderson, 47; 5 Rep. 81; Dyer, 338 b; Cro. Eliz. P. VOL. I. 447-472. (h) Watson, 481. (k) F. N. B. 34 a. (L. Raym. 88; 1 Lev. 125. A A |