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his right, his executor would be entitled to stand in his place.

The ecclesiastical character of the prebendary does not appear to me to make any material difference between this case and that of any other corporation sole. A prebendary before the statute 13 & 14 Car. 2. c. 4, might have been a layman; a prebendary, as such, has no cure of souls, and was not obliged by the 13 Eliz. c. 12. to subscribe or read the thirty-nine articles. (Burn's Eccl. Law, vol. ii. 79.)

Nor would the ecclesiastical character, supposing the prebendary always to have been a priest in holy orders, necessarily entitle his successor to a right of nomination or presenting to a benefice accrued to him in right of his prebend.

The transmission of an archbishop's options to his personal representatives, and the right to dispose of them by will, is a strong instance to shew that a personal right, though arising from the ecclesiastical character, does not pass to the successor. Another strong instance is that mentioned by Fitzherbert, in his Natura Brevium, 34. N. "If a vicarage happens void, and before the parson preents, he is made a bishop, &c. yet he shall present unto this vicarage, because it was a chattel vested in him.”

In this instance, the individual to whom the right accrued as parson, after having vacated the rectory by ac ceptance of other preferment, is allowed to present the vicar in preference to the successor in the rectory.

Whether the case here put was founded upon any actual decision, or only upon Fitzherbert's own understanding of the law prevailing in his own time, it has the sanction of his great name, and must be deemed of high authority.

One distinction, indeed, is recognised between lay and ecclesiastical patrons in respect to the right to vary a clerk presented. If an ecclesiastical patron once present a clerk, and then vary his presentation by presenting another, the bishop is not bound to receive either. Whereas, if a lay patron, having presented one clerk, afterwards present another, the bishop cannot absolutely refuse to institute, but may make his choice. The ground of which distinction is,

that the ecclesiastical patron has not the same excuse as the lay patron for omitting to ascertain the sufficiency of the clerk first presented. Keelway, 154. But this distinction has no bearing on the question of succession to the right of presentation.

It has been urged at your Lordships' bar, that where a judicial officer, entitled to appoint to some office, dies without having made an appointment, the successor in the office shall appoint.

The first answer to this case is, that such right of appointment is not property of any kind; and the next, that the same law, whether old or new, which has established the superior office, has regulated the right of appointment: in which respect, the case resembles that of the Chamberlain of London, the principle of which is, that the law which regulates the right of succession is coeval with the establishment of the office.

It now only remains for me, in the third place, to consider your Lordships' question with reference to the personal representatives of the deceased prebendary.

The right of the personal representatives of a natural person, where a right of presenting has accrued, was not disputed in argument.

It was admitted to be too firmly established upon authority to be now called in question, but it was contended to be an exception from the general rule of law, which ought not to be extended to a new case, the exception itself, though established, being, as it was said, inconvenient, and founded on a vicious principle.

I do not propose to offer to your Lordships any observation upon the convenience or inconvenience of the existing law, by which the personal representative, in ordinary cases, is preferred to the owner of the advowson; but if the view which I have taken of the right be at all correct, the law which prefers the personal representative is the general rule, and it lies on those who deny its application to the administrator of a prebendary to establish a ground of exception.

It may be admitted that the right of such administrators has never been the precise subject of any judicial decision.

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But little is to be inferred from that circumstance, either on one side or the other. If any argument is to be built upon the absence of litigation upon the subject, I should rather conclude that the general rule has prevailed, than that an exception to it had been admitted without dispute.

There can be no doubt that (generally speaking) the executor of a prebendary, as well as every other ecclesiastical corporation sole, takes the personal rights of his testator, whether in possession or in action, which accrued to the deceased in right of his prebend; such as the produce of the prebendal lands actually severed, or rent become due before the death of the prebendary.

So award, relief, heriot, &c. accruing from the prebendal lands, would pass as chattels to the executor; and the successor does not take any such rights or interests as are less than freehold.

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Even if a bond be expressly given to a corporation sole, (as the dean of St. Paul's) 20 Ed. 4. 2. Bro. Corporations, 60., and to his successors, the successor shall not sue upon it, but the executor.

It is urged, however, that the right of presentation to a vacant church is not a matter of profit, and that the personal representative of the deceased prebendary ought not to take it, because it would not be assets.

But the same argument applies to the personal representatives of a natural person, in which case their title is admitted to be unimpeachable.

If the right of presentation be not part of the freehold, it cannot be exercised by the successor; by whom then should it be exercised but by the person who represents the personal interests of the deceased?

The title of a personal representative is not confined to those things which become assets in his hands.

All the personal estate of the deceased, whether held for his own benefit or for that of others, passes to his executor or administrator.

Terms for years producing no benefit, covenants and obligations for the benefit of strangers, vest in the personal representative.

If the patron be disturbed in presenting to a vacant

church, and die, his executor, and not his heir, must bring the writ of quare impedit.

It can scarcely be argued that the successor of a deceased prebendary, who was disturbed in his lifetime, could maintain such a writ; and if not, who but the executor could maintain it? and who is to have the writ to the bishop?

Moreover, it is to be recollected that in such an action damages are recoverable, and that such damages would be

assets.

In Smallwood v. The Bishop of Coventry, Cro. Eliz. 207., it was expressly held by the justices, that this action was within the equity of the statute of the 4 Ed. 3., for the presentment is a chattel that should go to the executors if the disturbance had not been; and for a disturbance in their own time, they shall recover damages to the use of the testator by the same reason, for a disturbance in the time of the testator, they shall recover damages by the equity of the stat. 4 Ed. 3. And according to the report of the same case in Saville, 118., it was held, with reference to the objection that the presentment could not be assets, that every thing which the law gives by execution should be said to be valuable, and consequently assets; that by recovery in quare impedit the damages would be assets; and so, as the advowson is assets in the heir, the presentment shall be in the executor.

Will it be said that such assets belong to the successor of a prebendary, or that he, rather than the executor, is to sue for them for the benefit of the deceased's personal estate?

It has been objected in argument against the right of the personal representative, that he cannot present in right of the prebend, yet that he ought to present in that right in which the deceased prebendary must have presented.

But the same difficulty, if it be one, would apply to the case of a husband, who, though not tenant by the courtesy, presents after his wife's death in respect of an advowson vested in the wife, to a living becoming vacant during the coverture; and also to the case mentioned by Fitzherbert,

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of a parson to whom a right of presenting to a vicarage has accrued in right of his church, and who presents a vicar after having vacated his rectory by promotion.

In both these cases, the title which accrued alieno jure is asserted by the presentor as a personal right vested in the individual to whom it accrued.

The observations which I have submitted to your Lordships have been confined to the case of a presentative advowson; the object of your Lordships' question being, in terms, a right of presentation.

The case of a donative advowson, in which there is no presentation to the bishop, stands altogether upon a different ground; not forming, as I conceive, any exception to the general rule which has been mentioned, but being of a nature to which the rule is inapplicable.

The principle of the rule which carries the right of presenting to the executor is, that the right which accrued to the testator as patron is become distinct from the advow

son.

It belongs to the patron for a limited time only, which time is independent of his interest in the advowson. If not exercised within six months, it passes as a separate and distinct interest to the bishop; and if not exercised by the bishop within six months more, it passes in like manner to the king; neither the bishop nor the king having any interest in the advowson.

In the case of a donative, the right of presenting is subject to no limitation: though the patron forbear to fill the church for any length of time, his right is not lost, it does not pass from him to the bishop, or to the king, or to any other person; and if he never fill the church at all, the common law has made no regular provision for compelling him to do so.

So different is the right of the patron of a donative from that of a presentative advowson, that even during the incumbency the sole right of visitation and correction continues in the patron, independent of the jurisdiction of the ordinary. The patron alone can deprive the incumbent, and it is to him that resignation must be made.

It is unnecessary here to consider whether, by the spi