Mirehouse, and William Squire Mirehouse, go thereof, without day, &c.

Upon this judgment Frances Henrietta brought a writ of error into the King's Bench, and assigned the common errors, and the bishop, T. H. Mire house, and W. S. Mirehouse, joined in error. ⠀

The Court of King's Bench, as of Trinity Term 1827, gave judgment, that the judgment aforesaid for the error aforesaid, and other errors in the record and proceedings aforesaid be reversed, annulled, and altogether held for nothing; and that Frances Henrietta be restored to all things which she hath lost by occasion of the judgment,

&c.

Upon this judgment the plaintiffs in error brought a writ of error in parliament, &c.

The reasons assigned in the printed cases were as follows:

For the Plaintiff in error.

It is against the principles of law, and inconsistent with the general character, and rights and duties of an administrator, that a right of presentation to a church left vacant by the intestate should pass to such administrator, even where the intestate was seised of the advowson in his natural capacity. Even if it should be thought that an administrator has a right to present where the intestate was seised of the advowson in his natural capacity, still it has never yet been decided, and is against law, that the administratrix should have that right where the intestate was seised not in his natural, but in a politic or corporate capacity. The right of presentation to the church, at the time of the death of Thomas Rennell, was parcel

See 7 Barn. & Cres. 113.

1833.

MIREHOUSE บ.

RENNELL.

1833.

MIREHOUSE

บ. RENNELLA

of the succession in the advowson, and, together with the residue of such succession, passed to the person who succeeded to the corporate rights of Thomas Rennell in the prebend to which the same was appurtenant.

Although it be considered, that in technical language the presentation may be deemed to be severed from the rectory, still, by the principles and policy of law, the Plaintiff in error, as suc ceeding prebendary, is entitled to the presentation as part of the appurtenances of his prebend, to which the administratrix of his predecessor can prefer no legal claim. It is contrary to public policy, and repugnant to the manifest intention of the founder of the endowment, that the right of presentation should be held to pass to a person not being a prebendary of the prebend so endowed, nor claiming, under any act or deed of any of the former prebendaries.

For the Defendant in error.

The right of the owner of an advowson cannot depend upon the manner in which he became owner, whether by grant, descent, devise, or office. The accidental character of the person exercising the right, cannot alter the nature of the right itself, It is not disputed, that if a presentative church, the advowson of which belongs to a layman, become vacant, and the lay patron die without presenting, his executor shall present, and not his heir, devisee, or the next owner of the advowson; for so soon as a church becomes vacant, the right of presentation for that turn is separated and disannexed from the advowson, and vests personally in the then owner of the advowson; the next turn, when separated from the advowson, is a

chattel or fruit fallen, and no part of the advowson, in the same manner as rent due at the death of a lessor, is separated from the reversion and inheritance, and belongs to the executor, and not the heir or devisee.

The circumstance of this advowson belonging to á prebendary in right of his prebend makes no difference, even supposing that there be any distinction in this respect between lay and ecclesiastical patrons, since laymen might have holden prebends before the statute 18 and 14 Charles 2. c. 4. s. 13. And there is nothing to shew that this advowson was given to the prebendary as an ecclesiastic. Even supposing that the prebendary must have been an ecclesiastic, this right of presentation is not an ecclesiastical trust, to be exercised only by an ecclesiastical prebendary. For there are numerous instances of prebendaries, bishops, &c., making grants of the next turn of a living to laymen. And such lay grantees and their executors, have repeatedly in their own names brought writs of quare impedit for disturbance of their rights to present, which shews that ecclesiastical patrons may pass their right of presentation into the hands of laymen, as an archbishop may bequeath his options to a layman.

It is evident that the advowsons of all rectories (and the principal case respects the advowson of a rectory) must have been originally in lay hands, and those which are now found in the hands of spiritual corporations, aggregate or sole, must have come to them by grant from the original lay patrons, and therefore with all the incidents of lay fees. The law is the same for ecclesiastical as for lay

1

1833.

MIREHOUSE

V.

BENNELL.

patrons; the descent of advowsons, in both cases, is regulated by the temporal and not the ecclesiastical law. Even the ecclesiastical law would not give the vacant turn to the successor.

This case cannot be likened to that of a bishop dying during the vacancy of a church of which he is patron; in which case, neither the bishop's executors nor his successor shall have the turn; but the King, by his prerogative as guardian of the temporalities of the bishop, in the same manner as the King by his prerogative presents to the vacant church where tenant in capite of a manor to which an advowson is appendant, holden by knight's service, dies, his heir being within age.

A prebendary is a corporation sole, and a chattel cannot go in the succession of a sole corporation, unless it be in the case of the king, or by special custom; and this advowson belongs to the prebendary as such sole corporation, and not as a member of the aggregate corporation of the Dean and Chapter of Salisbury.

There is nothing upon this record from which it appears who was the donor of this advowson to the prebendary, or under what circumstances it -was given, or that it is subject to any other incidents or liabilities than such as follow the course of the common law, nor is there any thing on this record from which it can be inferred, that the intention of the donor, whoever he was, in granting the advowson to a corporation sole, was that the successor should take the vacant turn, and even if such intention did appear, or could be allowed to be proved upon this record, it would be illegal and void; for no one can create a new law

of succession contrary to the rules of the common law, or annex terms to a grant of which by law it is unsusceptible.

Although the advowson belongs to the prebendary in right of his prebend, the vacant turn does

not.

The case was argued before the House of Lords in 1830, by The Solicitor-General and Serjt. D'Oyly for the Plaintiffs in error, and by Mr. Follett and Mr. (now Mr. Justice) Patteson for the Defendant in error.

The following question was put to the Judges: An advowson belongs to a prebendary in right of his prebend, and the church becomes vacant, and the prebendary dies without having presented. Does the right of presentation belong to the personal representatives?

The Judges gave their respective opinions upon this question in the session of 1833.

Bosanquet J.- My Lords, the question proposed by your Lordships to the Judges for their opinion, is this:

An advowson belongs to a prebendary in right of his prebend, and the church becomes vacant, and the prebendary dies without having presented; does the right of presentation belong to the personal representatives?

In offering my humble reasons to your Lordships for answering this question in the affirmative, I propose with permission to consider it;

First, with reference to the right of presentation itself, to which the question, relates;

Secondly, with reference to the person (a prebendary of a cathedral church) to whom the right first accrued ;

The principal arguments are noticed in the opinions of the Judges, and are omitted in the report to avoid repetition.

1833.

MIREHOUSE A2.JOR39}} v.

RENNELL