1833. MIREHOUSE ຍ, RENNELL. ment against the notion that the right of presentation is to be considered as inseparably annexed to the prebendary himself for the time being, on the ground that it is an ecclesiastical trust, to be exercised by him only to whom the foundation has given it. Such grants are of very frequent recurrence in the old books of entries containing pleadings in quare impedit; and it is not to be conceived that they should be found there unless the practice was common, nor that they could have been put upon the record if such grants were against law; inasmuch as the Plaintiff deriving title under them would only be shewing the insufficiency of his right to sue. Again, the universal practice of grants made to the archbishops by bishops of their province, of those rights of presentation well known by the name of options, furnish at least the inference, that though the right to present comes to an ecclesiastical person, by virtue of his ecclesiastical character, still there is no rule of law that it must be exercised in person, but that the law allows it to be transferred to another. It may indeed be said, that this is not a transfer to a layman or a stranger, but merely to an ecclesiastic of the same or higher dignity; and therefore this ecclesiastical trust may be presumed not to be violated by such transfer of its execution. Admit it to be so, still how can we reconcile to that principle the right which the archbishop has to devise these options to any one he choses to select? And that such power exists, appears from the case of Potter v. Chapman, Ambl. Rep. 98., where the only question before Lord Hardwicke is made upon the propriety of the particular appointment by the trustees under the archbishop's will, but none whatever upon the right of the testator to bequeath them to his trustees. If then the bishop may sever and disannex from his bishoprick a right of presentation to which he becomes entitled jure episcopatus, and no otherwise; still further, if the archbishop to whom the grant hath been made may bequeath it to a stranger by his will; or, what is an identical proposition, if it would devolve upon his personal representative in case he had made no such bequest; it will surely be dangerous to build an opinion that the present ation now in dispute must belong to the successor, on the ground that it is of an ecclesiastical character, in the nature of an ecclesiastical trust, and by reason thereof must be exercised by the person who fills the prebendal stall, and by him only. So that the doctrine laid down in Doctor and Student would appear to be correct, where no distinction whatever is introduced between presentations made by laymen or presentations made by corporations; between advowsons appendant to manors, or advowsons appendant to offices of the church; but it is laid down generally thus, (see Dial. 2. cap. 26.)" It is holden in the law of the "realm, that the right of presentment to a church is a "temporal inheritance, and shall descend by course of in"heritance from heir to heir, as lands and tenements shall, "and shall be taken as assets, as lands and tenements be." And again," the goods of spiritual men be temporal, in "what manner soever they come to them, and must be "ordered after the temporal law, as the goods of temporal "men must be." Now if the vacant turn in a benefice be a chattel interest, as the authorities above referred to seem abundantly to shew, if it passes by grant, is devisable by will, or, in case of no bequest, goes to the personal representative; then indeed is the passage above cited a strong proof of the opinion of learned men at the early period when that book was written, that no just distinction can be taken between a right of presentation vesting in a spiritual man, by whatever means it may come, and a similar right in a layman. It affords a further argument that the right to present to the vacant living cannot devolve upon the successor, and go along with the prebend, that a prebendary is a corporation sole, and that by law a corporation sole is incapable, except by custom, of taking in succession chattels real or personal, either in possession or action. (Co. Litt. 9. a. 46 b. Hob. 64.) If this be the law, how can this vacant turn, once severed from the prebend, become reunited, and descend with the corporation sole? That such would not be the case as to some of the profits of the prebendal stall, where they fall due in the lifetime of the predecessor, appears clear. Rent which accrued 1833. MIREHOUSE v. RENNELL. 1833. MIREHOUSE บ. RENNELL. 1833. due in his lifetime would go to his executor. For the statute 28 Hen. 8. c. 11. gives to the successor the rent only which accrues during the vacancy; leaving the right to the rent due in the predecessor's lifetime where it then stood, that is, as a chose in action or a personal chattel, which would go to the personal representative. But it is very difficult to draw a sound distinction between rent which has fallen due, and a right of presentation which has attached during the life of the former prebendary, except upon the ground that the one is a right of a temporal nature, the other of a spiritual; and whether that be a sound distinction or not, I must lean upon the names and authorities which I have before given. The case of the donative, cited from 2 Wils. Rep. does indeed furnish some inference for a different opinion from that which I have formed; but I must confess myself unable to see the ground upon which that judgment proceeded in so short and unsatisfactory a report, with such degree of clearness as to place it in competition against the other principles to which I have referred, and which lead my mind to a different conclusion. I have therefore felt myself bound, by the analogy to be drawn from cases decided as to lay advowsons, to adopt the opinion, that the right of presentation in this case belongs to the administratrix of the late prebendary. I must admit, at the same time, that it might be more fitting and expedient that it should devolve upon the successor; but I am not asked by your Lordships what is most expedient, but what the law at present is upon the question. submitted to us. Lord Lyndhurst.-This was a writ of error from the Court of King's Bench, reversing a judgment in a case of quare impedit pronounced by the Court of Common Pleas. When the case came before the House of Lords, it was argued with great ability in the presence of the Judges; and questions having been put to them by the House, which they took time to consider, there was a difference of opinion among them. Six concurred in opinion that the judgment ought to be affirmed. Two were of a contrary opinion. I propose now to move that the judgment of the Court of King's Bench should be affirmed, not upon the ground that a majority of the judges were in favour of that judgment, but because it appears to be the more sound and correct opinion. After the ample discussion which this case has undergone, and the accurate investigation of every authority upon the subject, it is not necessary to enter into a detailed consideration of the question. I will state shortly the grounds upon which it appears to me that the judgment of the King's Bench ought to be affirmed. The material facts are these:-Mr. Rennell was a prebendary of Salisbury cathedral. To his prebend was annexed the rectory, or the advowson of the rectory, of the parish church of Welby in Lincolnshire. The incumbent died while Mr. Rennell was prebendary, and Mr. Rennell died before he had appointed a successor. The question is, whether the right to present to the vacant church belongs to the representatives of Mr. Rennell or to his successor in the prebend. An advowson is the right of presenting to a benefice. It is an incorporeal hereditament attended with all the usual incidents of that species of property. It may be conveyed in fee, granted in tail, or for term of life or years, or for the next presentation. All these partial interests are carved out of the fee. While the church is full, the right of presentation is annexed to the advowson, and passes with it into the hands of the party who becomes intitled by descent or devise, or otherwise. 1833. MIREHOUSE V. RENNELL. 1833. MIREHOUSE v. RENNELL. A grant of the advowson carries with it the right to the next presentation, if the church is full. If the church is vacant at the date of the grant, the right of presentation takes a new direction. From the time of the vacancy it becomes a chattel -a personal chattel, which vests in the personal representative, a chose in action-fruit severed from the advowson like arrears of rent. In such case the next presentation, according to all the authorities, passes, not to the heir, but to the personal representative of the party dying seised of the advowson. So, if the advowson is granted for a term, and the church becomes vacant, the lessee has the right to present, upon the ground that the right of presentation is severed from the advowson. Upon the same ground, where a married woman is entitled to an advowson and dies, the right of presentation is in the husband. As to the principle of the decisions, there is no doubt. But it has been argued here, as in the court below, that in reality there is no severance. The authorities and cases cited in support of this doctrine constitute merely exceptions to the general rule, and in effect tend to establish the rule. Of this description is the case of a tenant in capite of the crown, holding a manor to which an advowson was annexed; and after the church became vacant the tenant died, his heir being within age, in which event it was held that the right of presentation fell to the crown, and did not belong to the personal representative of the tenant. That case forms an exception to the general rule, which is founded on the prerogative of the crown; and it is to be inferred from the argument and the judg ment, that if it had been the case of a private per |