tained shall be construed to affect any existing right of chapters with their visitors to make statutes.' Canon a corporation sole. Prebendary, meaning and origin of the term. Two kinds of. Are now styled canons. Patronage of canonries. SECTION 5. Of Canons. Having spoken of the dean and chapter as members of a corporation aggregate, we proceed to speak of the canons or prebendaries individually, of whom such chapters are composed; for it must be remembered that as the canons collectively, with the dean, form a corporation aggregate, so each individually, in respect of his office, is a corpora tion sole. A prebendary, according to Lord Coke, is so called a prabendo, from the assistance he affords to the bishop," and, if this derivation could be supported, it would far go to explain the original purpose of the office; but, as in the case of many other derivations of that celebrated author, its correctness may be doubted; and it has been said with at least as much apparent reason, that a prebend is an endowment in land, or a pension in money, given to a cathedral or conventual church in præbendum, that is, for the maintenance of a priest or canon, who was called a prebendary, as supported by the said prebend.* Prebendaries are of two sorts, simple and dignitary; a simple prebendary is one who has no cure, and has no more than his prebend for his support; whereas a dignitary prebendary has a jurisdiction always annexed, he is therefore called a dignitary, and his jurisdiction is gained by prescription; and a prebendary generally may be said to be one who has a stall in the choir and a voice in the chapter. We have thus far used the word prebendary only for the sake of alluding to its derivation, for in fact the term is now extinct, and every member of the chapter, in every cathedral church in England, is henceforth to be styled a canon." The bishop was always considered of common right to have the patronage of canonries; but formerly there existed several exceptions: now, however, it appears that there is no longer any private patronage in such cases, but the appointment to all canonries is vested either in the bishop of the diocese or in the crown. There can therefore be no * Gibs. 195; 2 Burn's E. L. 88, 23 & 4 Vict. c. 113, s. 1. longer any institution in the case of canons newly appointed; but where the bishop is patron he collates, and the dean and chapter induct by placing the new canon in a stall in the church to which they belong. In those cases Collation and where the patronage is in the king, he appoints by letters- installation. patent; whereupon the person appointed is entitled to installation at once, as it seems, without collation.a And formerly, where the canons were elected by the chapter, a mandamus was granted to compel an election to fill a vacancy; and it was said that such was the proper mode of proceeding, for that the authority of the bishop was insufficient for that purpose: but such cases could not now occur. tion. Whether a peremptory mandamus would be granted to Mandamus to admit a canon to his stall and voice, seems to have been compel installa. thought more doubtful; and certainly none lies to restore a canon who has been deprived by sentence of the visitor. If a prebendary accepts a deanery, his prebend is void Patronage when by cession, and so if he be made a bishop; and in both the canon is these cases the king presents to the prebend thus made vacant. Nor would this, as it seems, be altered by the recent statutes, which expressly give the patronage of certain canonries to the bishop of the diocese. made a bishop. No person is qualified to be appointed canon until he Qualification. has been six years complete in priest's orders, except in the case of a canonry which is attached to a professorship, headship, or other office in any University. Canons are bound to preach in their cathedral or col- Duties. legiate churches, and in other churches in the diocese, just as we have already seen in the case of deans. But they have not the cure of souls; for which reason he who takes title to a canonry is not obliged to read or subscribe the Thirty-nine Articles; and for the same reason a canonry and a parochial benefice might formerly have been holden together without any dispensation. But now no spiritual How affected as person holding more than one benefice shall accept, or to pluralities. take to hold therewith, any cathedral preferment or any other benefice; and no spiritual person holding any cathedral preferment, and also holding any benefice, may accept or take to hold therewith any other cathedral preferment, or any other benefice; and no spiritual person holding any preferment in any collegiate or cathedral church, shall accept or take to hold therewith any preferment in any other cathedral or collegiate church, any law, canon, custom or usage to the contrary notwithstanding; but this does not 3 & 4 Vict. c. 113, ss. 34, 35. b 1 T. Rep. 652. c 1 Wils. 206. 42 Burn's E. L. 87. e 3 & 4 Vict, c, 113, s. 27. Residence of benefices. Formerly regu lated by the canon law. extend to prevent a person holding any cathedral preferment, either with or without a benefice, from holding therewith any office in the same cathedral or collegiate church, the duties of which are statutably or customarily performed by the spiritual persons holding such preferment; and a further exception from this rule is made in favour of an archdeacon, which we shall mention when we speak of that dignitary. Previously to this enactment it was the rule that no person could hold more than one canonry in the same church, which, as it is said, was agreeable to the rule of the ancient canon law; but as to canons in different churches there was not the same restriction." By the canon law also it was provided that no precanons on their bendaries nor canons in cathedral or collegiate churches, having one or more benefices with cure, (and not being residentiaries in the same cathedral or collegiate churches,) should, under colour of their said prebends, absent themselves from their benefices with cure above the space of one month in the year, unless it was for some urgent cause and certain time to be allowed by the bishop. And that such of the said canons and prebendaries as, by the ordinances of the cathedral or collegiate churches, stood bound to be resident in the same, should so among themselves sort and proportion the times of the year as that some of them always should be personally resident there; and that all residentiaries should, after the days of their residency appointed by their local statutes or customs expired, presently repair to their benefices, or some or one of them, or some other charge, where the law required their presence, there to discharge their duties according to the laws in that case provided; and that the bishops of the diocese should see the same to be duly performed and put in exe Now by statute. cution. A further provision regulating the residence of prebendaries was made by the statute 59 Geo. III. c. 99, s. 11, but it appears unnecessary now to mention it, since the matter is now regulated by the recent act 1 & 2 Vict. c. 106, which makes it lawful for any spiritual person, being prebendary, canon, priest, vicar, vicar choral or minor canon, in any cathedral or collegiate church, who shall reside and perform the duties of such office during the period for which he shall be required to reside and perform such duties by the charter or statutes of such cathedral or collegiate church, to account such residence as if he had resided on some benefice; but this is not f 1 & 2 Vict. c. 106, s. 2; and see title Pluralities. g Gibs. 174. h Canon 44. to be construed as permitting or allowing any such prebendary, canon, &c. to be absent from any benefice, on account of such residence and performance of duty, for more than five months altogether in any one year, including the time of such residence on his prebend, canonry, &c.; and every such spiritual person holding any such office in any cathedral or collegiate church, in which the year for the purposes of residence is accounted to commence at any other period than the 1st of January, and who may keep the periods of residence required for two successive years at such cathedral or collegiate church, in whole or in part, between the 1st of January and the 31st of December in any one year, may account such residence, although exceeding five months in the year, as reckoned from the 1st of January to the 31st of December, as if he had resided on some other benefice. residence on The actual term of residence to be kept by every canon Term of is now appointed to be three months at the least in every year. It seems, therefore, that an incumbent who also canonry. holds a canonry is allowed in each year two months' term of absence from his benefice, besides the time of his necessary residence as canon.k It not unfrequently happened that the advowson of a rectory was attached to a prebend; and in such case, where the prebendary died after the church had become vacant, and before presentation, it has been a matter of much controversy whether the right to present devolved upon his executor or upon his successor; and in the first instance it was decided that, because it was a spiritual trust reposed in the prebendary in right of his ecclesiastical benefice, it could not devolve upon the executor, since none could exercise the right who was not clothed with the ecclesiastical character in respect of which the right accrued. But this decision, pronounced in the Court of Common Pleas, was brought before the King's Bench by writ of error, and there seems to have been most fully argued and considered; and there it appears to have been considered that the right of presentation of a prebendary, in right of his prebend, was not inalienable or inseparable on account of a personal trust and confidence in the person who might happen to be prebendary; that the intention of the particular donor could not be relied on; that the right of presentation was a chattel, and that it was against the known rule of law that any corporation sole, except the king, could take a chattel by succession. It was consequently decided that 1 & 2 Vict. c. 106, s. 37. k 3 & 4 Vict. c. 113, s. 3. Rennell v. Bishop of Lincoln, 3 Bing. 223. Right of ad vowson attached to a prebend. No right of patronage or separate estate in canons individually. Income, amount of, and how paid. Whether the income of a canon as now the right vested in the prebendary, not in his corporate, but in his individual capacity, and devolved upon his personal representatives; and the decision of the Court of Common Pleas was reversed.m The same case was again brought before the House of Lords, when the decision of the King's Bench was confirmed by the opinion of six judges to one, the dissentient, however, being Lord Lynd hurst." But this question, and the above decision on it, are now rather subjects of history than of law; for as it has been said in the last chapter, all the patronage of the canons individually has been taken from them, and transferred to the bishops. And all the separate estate and interest which the holder of any canonry has or would have in any lands, tithes, or other hereditaments or endowments whatsoever, annexed to or usually held with his canonry, in addition to his share of the corporate revenues of the chapter, is now absolutely vested in the ecclesiastical commissioners." Henceforth, therefore, the only income of a canon is that which he shares with the other members of the chapter, out of the revenues of the chapter; but in most cases a part only of the former revenues of the chapter is applicable for this division; for the ecclesiastical commissioners are to make such arrangements in this respect as will leave to the canons of Durham, Manchester, St. Paul's and Westminster respectively, an average annual income of 10007. And such other arrangements are to be made by the commissioners, either by addition to, or deduction from, the amount of the average annual income of the canons in every other cathedral or collegiate church in England, as will leave the average income at 500l., and in the cathedral church of St. David's and Llandaff at 3501.P But this scale of payments and receipts may from time to time be revised or varied; but so as to preserve as nearly as possible the intended average annual incomes; and so as not to affect any canon in possession at the time of making any such variation." It is a question of considerable importance, but one which cannot yet be said to have been fully decided, whether those profits of a canonry, which the canon has in his capacity as a member of the chapter, and now therefore valid security. his only income, can legally and validly be assigned by paid could be assigned as a m Rennell v. Bishop of Lincoln, 7 Barn. & Cress. 117. n Mirehouse v. Rennell, 1 Clark & Fin. 527. • See last chapter. P 3 & 4 Vict. c. 113, s. 66, 4 & 5 Vict. c. 39, s. 20, |