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such as Spelman de non temerandis Ecclesiis, Bishop Kennett on Impropriation, and Burn, tit. Appropriation. I have presumed to trouble your Lordships with this short history of the church, because it seems to me to prove incontrovertibly that what is thus vested in the church for spiritual purposes vests in them as a body politic, and can never be allowed to fall into the common private stock of the body at large, or of the individual sole corporator. And it will be found that what is said of the church at large is no less true of the church of Salisbury, as was luminously shewn by Lord Wynford and Mr. Justice Burrough in the court below.

Thus, then, an ecclesiastical person during his incumbency is entitled to all the profits that may fall of a chattel But when a living falls vacant, to which he has a presentation in right of his church, as it is not a matter of profit, he merely presents quasi incumbent.

nature.

I have shewn to your Lordships, that the living in the present case was probably endowed out of the prebend, or the advowson attached to the prebend of South Grantham; in either case the prebendary, as a sole corporator for the time being, has the right of presentation; and upon the avoidance, he may present in right of his church; he presents as a trustee; the trust is personal, without profit, and cannot be transmitted.

How, then, can a private personal representative of a deceased prebendary, who dies after avoidance, but before presentation, claim the presentation? Is it that he makes it a chose in action, out of which to pay the debts of his testator or intestate? That cannot be, for it is not assets. Does he claim to present because this trust had devolved upon him, or, as it were, became vested in the testator or intestate? The trust has indeed devolved upon him, but not in his own right; but, as the declaration truly states, in right of his prebend: the presentation is in him, not for his own use or benefit, but for the use and benefit of the church, confided to his spiritual, not to lay hands, for the dignity and ornament of the church, a trust which he, and he only, must execute upon his great personal responsibility, for the cure of souls, and for the advancement

of the interests of religion, a duty which his personal representative in his natural capacity cannot, in law, be deemed qualified to discharge.

I fear I have fatigued your Lordships with the length of the argument; but as some of my brethren unfortunately differ from me, I could not satisfy my conscience upon this great, and, as I think, awfully momentous question, without satisfying your Lordships that I have not come to the conclusion which I have stated without most anxious consideration and deep research. The result then of my opinion is this, that whatever is attached to a spiritual, sole, politic body, sinks with the death or resignation of the party who possesses that right.

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. F. N. B. 33. P. 34. B. Co. Litt. 388. Dy. 283 a. 21 Hen. 7. pl. 6. Bro. Present. à l'Eglise, 34. If the right to present when a vacancy occurs be in tenant pur auter vie, or in a termor, and before he present cestuique 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. F. N. B. 34 B. Bro. Pres.

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à l'Eglise, 22. 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. 21 Hen. 6. B. 38 Hen. 6. 36. B. 14 Hen. 4. 12. Bro. Pres. à l'Eglise, pl. 22. Co. Litt. 120. And if a vicarage become vacant, and the person to whom the right of presenting belong be made bankrupt (whereby his right in the patronage ceases), he shall nevertheless present. F. N. B. 34 N. 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 this 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. Bland v. Maddox, Cro. Eliz. 79. 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. 3 Rep. 75 b. Dy. 61 b. pl. 30. 50 Ed. 3. 26. 2 Roll. Ab. 341. It is only under 13 & 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.

If

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 he may make the grant, and it will bind him. Watson, c. 10. p. 135, 136. c. 45. p. 873. 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, 793. says, "Advowsons may be granted by deed or will, either "for the inheritance, or one or more turns. But this ex"tends 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 restrained by the "statutes of Eliz., that their grants, though confirmed, "will not bind their successors. But they will bind the 66 grantors for their own time." And if it be made conformably to the statutes, it will bind the successors. Watson, c. 10. p. 137., c. 45. p. 875, 876. In Smallwood v. The Bishop of Coventry, Cro. Eliz. 207., 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, 1 Anderson, 47. 5 Rep. 81. Dyer, 338 b. Cro. Eliz. 447-472., 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; Watson, 481.; and all the Court (except Griffin) held it good for fiftyone years. In London v. Chapter of Southwell, Hob. 303. 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 ordi

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nary he may grant it to another: F. N. B. 34. a. The case of Sharrock v. Boucher, T. Raym. 88. 1 Lev. 125., seems to shew 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 and the king, and to the king's prerogative. The king is the sovereign patron of every bishopric: 17 Ed. 3. 40. And though he gives the chapter leave to elect, the patronage is in him: 17 Ed. 3. 40. And upon the death of a bishop, the see comes to the king as the bishop left it; and if the deanery or a stall be left vacant, the king shall fill it up 17 Ed. 3. 40. A prebendary of Abergavilly, the bishop (of St. David's) died. The temporalities were seised into the king's hands; a new bishop was appointed, and filled up the stall. The king brought quare impedit, and it was adjudged that he had the right; and a writ was awarded to the bishop: Rex v. Bishop of St. David's, 50 Ed. 3. 26. The temporalities came to the king as founder by prescription: Mall. 65. n. to pl. 1. And this is so high a prerogative, and so far united to and inseparable from the crown, that a subject cannot claim it by grant or prescription: Mall. 65. n. to pl. 6. And if the king die, sede vacante, the succeeding king shall have the temporalities, not the king's executor: Mall. 65. n. to pl. 4. Bro. Chattels, 2. 2 Roll. Abr. 211. And if the king die, leaving a church void, the succeeding king shall present: Semb. Mall. 65. pl. 4. and Mall. 42. pl. 16. Bro. Chat