tels, 2. 2 Roll. Abr. 211. And this, though the church became void in the bishop's life, and though the new bishop has sued out livery out of the king's hands before the king presents: Mall. 65. pl. 5. Watson, 73. F. N. B. 33. n. 2. Roll. Abr. 343. pl. 5. In the case of a bishopric, therefore, if the bishop dies, whatever spiritual preferment in the gift of the bishop was vacant at the bishop's death, and whatever shall become vacant till the see is filled up, devolves upon the crown, and is inseparable from the crown, so that the crown cannot grant it away; and in case of the demise of the crown, it will pass, not to the executors of the deceased king, but will accompany the crown, and go to the succeeding king.

Upon this, two observations occur, one, that in the case of the crown only can a sole corporator, which the king is, take a chattel by succession; so that, what is the rule in the king's case where the right to present may, by reason of the prerogative, pass from bishop to king, from king to king, will not apply to the case of a prebendary where there is no such prerogative, to pass the right from prebendary to prebendary: 16 Vin. Q. 14. 17 Vin. Y. The other, that what is the case of the crown with reference to a bishop who holds per baroniam, is the case with every other tenant in capite, where the tenancy, by reason of infancy in the heir, becomes as it were suspended, and the tenancy returns in wardship to the king. Co. Lit. 388. a. is express upon this point, and he puts the two cases together, that of the king's tenant in capite, and that of a bishop's. If the king's tenant by knight's service in capite be seised of a manor to which an advowson is appendant, and the church become void and the tenant die, (leaving his heir in ward,) the king shall present, not the executor. And if a church, in the gift of a bishop, become void, and the bishop die, the king shall present, not the executor: Co. Lit. 388. a. The right, therefore, of the king, in the case of a bishopric, appears to me to be referable, not to the spiritual character of the person from whom the right comes, but to the king's prerogative, because it obtains equally in the case of every tenant in capite, whether he be a spiritual person or not.

1833.

MIREHOUSE

V.

RENNELL.

1833.

MIREHOUSE

ย.

RENNELL.

Upon the whole, therefore, I am of opinion that the general rule is, that if a church becomes vacant, and the patron die, the right to present devolves upon his executor: that this is the rule also, where a prebendary in right of his church is patron, because, until the statute of Car. 2. (13 & 14 Car. 2. c. 4. s. 14.) it was not necessary a prebendary should be a spiritual person; and, because, in the case of spiritual persons, their right to present to churches is temporal, not spiritual, inasmuch as they may grant it away before a vacancy occurs, as they may their other temporal possessions; and that the excepted case of a bishop is not applicable to other spiritual persons seised of advowsons in right of their dignities or churches, because the case of a bishop is referred to the prerogative of the crown, which enables the crown to take a chattel in succession, and to the relation in which the crown stands to a bishop, the bishop being tenant in capite to the crown, not to the spiritual character of the bishop, nor to any spiritual nature in the right. My answer, therefore, to the question proposed by your Lordships is, that in the case that question propounds, the right of presenting belongs to the executor of the prebendary.

Tindal C. J.-My Lords, upon the best consideration I can bring to this case, I have come to the conclusion, that the right of presentation belongs to the personal representative of the late prebendary; but at the same time I am ready to admit it is after considerable doubt upon the question which has been submitted to us by your Lordships.

If I felt myself at liberty to look at the particular foundation of this prebendal stall, or to consider upon general principles, what might be most fitting and expedient in the case of patronage belonging to an ecclesiastical corporation, such as is a prebendary, I could bring myself without difficulty to the conclusion that the right to fill up the turn which was vacant at the time of the late prebendary's death, ought to devolve upon his successor, and not to go to his personal representative.

But neither upon the abstract question proposed by

your Lordships, nor upon the facts stated on the record in this case, can I take judicial notice, either of the circumstances attending the original foundation of this prebend, the endowment thereof with this particular advowson, or the form of presentation which has been used and adopted on occasion of former vacancies.

And as to any considerations derived from general expedience, I feel myself restrained from entering into them, because there appears to me to be an analogy of sufficient strength and certainty, to bring the present case within the reach of acknowledged principles of law, and the authority of various decided cases.

It is upon the ground of this analogy which exists between the present case and those principles and authorities, that I feel myself bound to concur in the opinion which has been expressed by the majority of his Majesty's Judges: thinking it a safer course upon this occasion, as I find has been the opinion of other Judges, from the earliest periods of the law, to adhere to any rule which can be safely inferred from the cases, rather than to substitute another, although it may appear upon general principles more reasonable and more just.

I assume it to be settled law, admitting of no doubt or dispute, and not requiring to be supported by reference to any authorities, that where an advowson presentative is vested in any person in his natural capacity, either in fee or for life, and the church becomes void, and the owner dies after such avoidance without making any appointment, the right to appoint to the vacant turn belongs to the executor, and not to the heir, or to the next owner of the advowson. Indeed, so clearly is this principle recognized, that all the books concur in calling this vacant turn a chattel vested in the testator. (Fitz. N. B. 33 P. 34 N. 4 Leon. 109.)

In the case in Fitz. N. B. 33 P. it is stated, that if a man be seised of an advowson in fee, in gross, or in fee appendant unto a manor, and the advowson becomes void, and he dieth, his executor shall present, and not his heir, because it was a chattel vested and severed from the manor. If the chattel is severed from the manor in that case, why may it

1833.

MIREHOUSE
V.

RENNELL.

1833.

MIREHOUSE

V.

RENNELL.

not be considered as severed from the prebend in this? And if once severed, it is difficult to assign any legal principle upon which it can be remitted. Unless, therefore, some solid ground can be laid down, upon which a distinction can be made between a prebendary seised of the advowson in right of his prebend, and a person seised in his own natural right of a manor to which an advowson is appendant, there can be no doubt but the case falls within the general rule, that the right to present is a chattel interest, and would go to his personal representative. It will be advisable, therefore, to refer to some of the cases and principles which carry the analogy more closely to the particular question now under discussion.

In Fitz. N. B. 34 N. is found this case; if a vicarage happen void, and before the parson present he is made a bishop, &c., yet he shall present unto this vicarage, because it is a chattel vested in him. The authority referred to is 24 Edw. 3. 26.; but the case, which is not to be found in the Year Book, will be found inserted nearly in the same words in Fitz. Abr. Quare Imp. 22. In that case, as in the present, the patron was seised in jure ecclesiæ: and notwithstanding he ceased to be rector, he still carried with him in his natural capacity this chattel interest, the right of appointing to the vacancy. In that case it was held that the chattel interest which had once vested in him, did not afterwards reunite with the corporation sole, the parThat case appears to me to be a direct authority upon the present question, to this extent; that if the living had become void, and the prebendary had vacated the prebend, the right of appointment would have belonged to him, not to his successor. If so, and he still retained the right to appoint, notwithstanding his loss of the prebend, on what principle shall his death be held to reunite the presentation with the prebend, from which it has once been severed? The case in 2 Rol. Abr. 346. F. pl. 4. shews the law, where the avoidance of a vicarage happens after the vacancy of the rectory, and before the new rector is appointed. "If the parson has the right to present to the vicarage, yet if the vicarage becomes void during the vacancy of the parsonage, the patron of the parsonage shall present.'

son.

So that although the rector be in the nature of an ecclesiastical corporation sole, and although the rector be seised of this right of presentation jure ecclesiæ, yet it shall not devolve to the successor; but if it happen before the vacancy, the former rector shall still appoint; if during the vacancy, the patron. Both which cases are strong to shew, there is no indissoluble union between the right of presentation and the prebend itself.

To which may be added the case stated in Fitz. N. B. 33 P. "that if a bishop die seised of a manor to which an "advowson is appendant, and the advowson happen void "before his death, the king shall present unto the same "by reason of the temporalities, and not the bishop's execu"tor." The reason is that the king takes the temporalities by reason of his prerogative, and the turn being once vested in him, cannot be got out of him but by matter of record. Now although the express point adjudged by that case does not apply here, because there is no prerogative in this case, yet it furnishes an observation which appears not unimportant. Fitzherbert puts this case in opposition with that which had immediately preceded it, namely, the case in which he has stated "the executor "shall present and not the heir, because it was a chattel "vested and severed from the manor, &c." He then puts

the case of the bishop; and the inference to be drawn is, that but for the prerogative the executor would have presented: otherwise he would not have said, the king shall present, and not the bishop's executor; the observation would have been, the king shall present, and not the

successor.

If this is a just inference, the authority of the case last referred to would go the length of deciding the present; if the executor of the bishop would be entitled to present to the turn which fell vacant in the bishop's life, and which belonged to the bishop, jure ecclesiæ, had not the prerogative stepped in and prevented him; it would follow in the present case, where no such prerogative exists, the executor has the right to present to the vacant benefice.

The power of the prebendary to grant the next turn to a stranger before it becomes vacant, affords a further argu

1833.

MIREHOUSE

ข.

RENNELL.