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son, the right of presentation would have devolved on the personal representative, and not upon the heir. That the rule in this case depends upon the law of prerogative, appears also from this consideration that if the tenant comes of age, and sues out his liberate before the king has presented, the tenant retains the right to present, which shews that there was a severance. In like manner, when a party entitled to an advowson grants it during a vacancy, the right of presentation does not pass, because it is severed before the grant.

Another case cited is, where a bishop being entitled to an advowson in right of his bishopric, and the church becoming vacant, the bishop dies before presentation. In which event the crown has the right to present, and not the representative of the bishop. This, on the same principle, must be considered as an exception to the general rule, as depending upon the law of prerogative. Another case within the same principle is where the incumbent himself is the patron, upon his death the next presentation was adjudged to belong to the heir; because, the rights being contemporaneous, the title of the heir is more favoured in law, and held to be superior.

These were the cases produced in argument to combat the general position of law that, upon a vacancy of the church, the right of presentation is severed from the advowson. But they are exceptions, and the principle is clearly made out in the case of a natural person.

The next question is, how the rule is applicable in the case of a sole corporation. To consider the question first as disincumbered of its ecclesiastical

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character. Between a sole lay corporation and an individual there is no difference as to the course of succession: real estate would pass to the heir or successor; personal estate would pass to the personal representative. Arrears of rent, relief fruits fallen from the inheritance, and severed from the reality, pass to the personal representative. That a chattel interest cannot pass to a successor appears by Fulwood's case.* The presentation, therefore, in this case, if it is severed and has become a chattel interest, cannot devolve to the successor. The rule is as clear, in point of law, with respect to a corporation sole as to a natural person.

Then arises the question how it will apply to a prebend. Now a prebendary, as such, has no cure of souls. Before the statute of uniformity it was not even necessary that he should be an ecclesiastic. No alteration was made by that statute as to prebends, except that the office must be exercised by an ecclesiastic. It would be singular if the law were to vary according as the person were lay or ecclesiastic. Nor does it follow, because the prebendary is ecclesiastic, that the presentation must pass to the successor upon his death. In the case of options it has been held that they do not pass to the successors, but to the personal representatives of an archbishop. So, in some cases of vicarages and other ecclesiastical rights, it has been held that they do not pass to the successor but to the personal representative. These cases furnish a strong argument to show that immediate ecclesiastical patronage may by law be vested in persons not ecclesiastical, and that the act of uniformity requiring certain

* Co. Rep.

offices to be filled by ecclesiastics has not affected the rule, that when the church is vacant, the next presentation is severed from the inheritance, and passes to the personal representative, in the case of an ecclesiastical as well as a lay patron.

But it is argued that great inconvenience might ensue from this law; that the presentation to ecclesiastical offices might fall into the hands of creditors, or women, or tradesmen. But that is the case according to the existing law, and to a great extent as to ecclesiastical appointments; why should this case be an exception? There is no practical inconvenience; and if it were so to any extent, the judgment of the House in this case cannot with propriety be biassed by such consideration. If the law is inconvenient, it must be altered by the legislature.

Upon these grounds I submit my opinion to the House, that the judgment of the King's Bench ought to be affirmed.

Lord Wynford. It has been said that the decision of this case should not stand upon the opinion and authority of the majority of the judges, but upon the law. I also wish to put it upon the authority of the law. But whatever my private opinion may be, I should wish, on the principle and rule laid down by Lord Eldon, that as the best security for the certainty and stability of law, there should be a concurrence of opinion, as far as possible, in all decisions. In this case the Court of Common Pleas held that the presentation was in the successor, one of the judges of that Court dissenting from the majority. In the King's Bench, Lord Tenterden was of the same opinion with the

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majority of the judges of the Common Pleas; but the three puisne judges of the court of King's Bench were of a different opinion, and the judgment of the Common Pleas was reversed. I have, since the hearing of this case, had an interview with the noble lord, the Chief Justice of the King's Bench; he retains the same opinion, which he has desired me to express. The argument, as I have understood it, has not grappled with the question. In the case of donatives the presentation goes to the heir; and, according to the authority of Selden, all livings in the kingdom were originally donatives. At that time no such rule could have prevailed.

As

In my opinion there is a difference between lay and ecclesiastical patronage. As Lord Kenyon has said, in lay patronage there is a trust coupled with an interest, and, therefore, when a living is vacant, it becomes a personal chattel. In that case it might happen that a Jew creditor might have the right of presentation. That is certainly an inconvenience. But ecclesiastical patronage is a pure trust. Pope Clement said, the presentation to the church should be quasi instante Deo, as though it were in the presence of God. In this respect it differs from lay patronage, and the distinction has been recognised and acted upon lately, it having been adjudged upon writ of error in this House that resignation upon a bond in favourof a particular person was void. That was considered inconvenient, and an act of parliament was introduced to prevent the inconvenience. The act provides that such a bond shall be held valid in the cases of a child, &c. But that applies only to cases of lay patronage; and it is expressly provided that the powers of the act shall not apply to ecclesiastical patronage, upon

the obvious principle that ecclesiastical patrons have no interest. This is founded upon a distinction which I took in the Court of Common Pleas.

It is necessary to consider the origin of these benefices, and to ask what was the intent of the founders. Could they ever have intended their gifts to operate to the prejudice of the church? We should look to the history of the church of Salisbury, not to the rights of corporations sole. A gift from a donor to the clergy of a cathedral church could not be intended to pass into lay hands. The question of law as to corporations sole could never have been contemplated. The representative of the deceased prebend cannot be administratrix to the church of Salisbury. In lay patronage it is otherwise. In ecclesiastical patronage there is no connection of the representative with the person to whom the patronage belonged; for it belonged to the prebendary in his ecclesiastical character. This depends upon the canon law. As Lord Coke says, 344. a., "The ecclesiastical laws are allowed by the laws of this realm, which are not against the common law, nor against the statutes and customs of the realm." So it is said "Si beneficiatus decedat intestatus, ecclesia ei succedat." That is the very case under consideration. An ecclesiastic did depart this life beneficed. This is more distinctly explained in another passage. If no case to the contrary at common law is cited, the canon law must prevail. If there is no law upon the subject, common sense and convenience, and the interest of the church, should prevail, unless our hands are tied up. Would it be wise to leave the right of presentation to a personal representative, who might be a mere creditor? If so, the worst

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