a cathedral church) to whom the right first accrued ; thirdly, with reference to the deceased prebendary's personal representative, whose right is the immediate subject of the question. With respect to the first point, I take it to be clear, that the patron's right of presentation to an ecclesiastical benefice is a temporal right. It is expressly said by St. Jerman, in the 36 cap. of the Doctor and Student, that the right of presentation is a temporal thing, and a temporal inheritance. It was insisted, however, at your Lordships' bar, that the right of presenting is a personal spiritual trust; and the authority of Bishop Gibson was relied on in support of that position. Bishop Gibson (Codex Tit. 33. cap. 1.) does indeed question the propriety of calling it à tem poral inheritance, or that it ought, legally speaking, to But be considered otherwise than as a spiritual trust. he refers to no authority in support of his view of the subject. And in the very same chapter in which he suggests this doubt, he says that the right of nominating, which at first was annexed to the person building or endowing the church, became by degrees appendant to the manor in which it was built; that the right of advowson, though appendant to a manor, castle, &c., may be severed from it; and that being severed, it beAnd he calls the right comes an advowson in gross. itself an incorporeal inheritance which may be granted by deed or will. The grounds upon which it has been considered that the advowson, or patron's right to present, is a temporal and not a spiritual inheritance, are well stated by Godolphin, (Repertorium Canonicum, p. 209.;) who was, as your Lordships know, an eminent civilian and king's advocate after the restoration of King "that by "It hath ever been held," he says, Charles II. the common law an advowson is a temporal inheritance: for which he gives the following reasons: that it lieth in tenure, and may be holden either of the king or of a Kk 4 common 7 1832. MIREHOUSE V. 1832. MIREHOUSE v. RENNELL. common person; and hath been held of the king in capite or in knight's service; that a writ of right of advowson lieth for him who hath an estate in an advowson in fee-simple; that a præcipe quod reddat lieth for it; that a common recovery may be suffered of it; that an advowson, as other temporal inheritances, may be forfeited by attainder, or lost by usurpation, negligence, and other means there specified; that the wife shall be endowed thereof, and the husband be tenant by the curtesy; that it may be taken in coparcenary; that it may pass by way of exchange for other temporal inheritance; that by grant of all lands and tenements an advowson doth pass; and if not by livery, yet by deed, is transferable as other temporal inheritances, which pass with the manors whereunto they are appendant. It is said that the object of an advowson is of a spiritual nature, since it is to provide a spiritual person to serve the church; but the right to nominate such person is not the less a temporal estate." That right, according to Fleming C. J. (Starkie and Pool's case, 1 Bulstrode, 21.), is an interest and not authority. The spiritual interests of the church are provided for by subjecting the fitness of the person nominated to the judgment of the bishop, but the exercise of the patron's right of nomination is not subject to the jurisdiction of any court but the king's temporal courts. On this point, Godolphin (p. 256.) says, "It is sufficient for the ordinary's discharge, if the presentee be able, by whomsoever he be presented; which authority is acknowledged on all sides to have ever been inherent in the ecclesiastical jurisdiction. But as to the right of presentation itself, to determine who ought to be presented, and who not, and at what time and when the church shall be judged to become void, and when not, all these appertain to the king's temporal laws." It appears to me, therefore, my Lords, to be indisputable that a right of presentation is temporal property, the the alienation of which must be governed by the rules and analogies of the common law; and that it is no more to be considered in contemplation of law as a trust, than all other temporal property for the proper use of which the owner is responsible in foro conscientiæ. An advowson, being an incorporeal hereditament, may be taken by descent, conveyance, or devise, like other temporal property of that class. It may be limited in fee or in tail for term of life or for years. If the advowson be held in fee or in tail, it descends to the heir general or special. If for life, it passes to the remainder-man or reversioner; all these being freehold interests. A term of years or a single turn goes to the executor or administrator; such interests being less than freehold: and the whole estate, or a portion of it, or a single turn only, may be sold for a pecuniary -consideration. If, indeed, the church be vacant, the right of presentation for that turn cannot be granted by a subject either for value or gratuitously. This restriction, however, is not peculiar to a right of presentation: it applies to annuity or rent actually due, which may be granted before the day of payment, but which cease to be alienable at law after they have accrued; yet the arrears in both cases are unquestionably temporal rights. The nature of the difference which subsists between the right to present on the next turn which may accrue, and the right of presentation to a vacant turn, it is now material to consider. The right to present upon the next turn which shall accrue, is an interest carved out of the fee in the advowson, and if re-conveyed to the owner of the fee, will merge. But the right of presentation to a vacant benefice, though arising from the advowson, is no part of it. 1832. MIREHOUSE v. RENNELL. 1832. MIREHOUSE v. RENNELL. It has sometimes been called a chattel, sometimes a chose in action, sometimes a fruit fallen. It is called (in Dyer, 283.), a mere personal thing-a thing in right power and authority, a thing in action; and in effect, the fruit and execution of the advowson, and not the advowson. See Co. Lit. 120.a. It said to be not merely a chose in action; for it survives to the husband, which a bond does not. But, by whatever name it may be called, it is treated in law as a right of a distinct nature from the ownership of the advowson itself. In Jenkins's Cent. p. 236., it was held by all the Judges of England, that where the next presentation to a church then void had been granted, the grant, being made by a subject, was void. For the present avoidance (it is said) is a thing in action and privity, and vested in the person of the grantor (the patron), and is like a relief or arrear of rent, or an obligation or a debt; and it is added, if a grantee of an annuity in fee grants an annuity for lives or years, it is good; for this is an estate settled and of continuance; but a grant of the arrears of the annuity is void, causâ quâ suprà : that is, because the subject of the grant is become a chose in action; and notwithstanding what is stated in the note to the Bishop of Lincoln v. Wolforstan (a) respecting the fictitious nature of this reason, it appears to me fully warranted both by analogy and authority in point. No instance can be shewn in our books in which a right of presentation to a vacant church has accompanied the ownership of an advowson in the hands of a subject, if the person, to whom the right of presenting accrued, has ceased either by death or otherwise to hold the advowson. If a right of presentation accrues to the owner in fee of the advowson, it does not pass to his heir. If the right accrues to a tenant in tail or tenant for life of the advowson, it does not pass to the issue in tail or the remainder-man. But in all these cases it goes to the (a) 3 Burr. 1504. executor, executor, as the representative of the personal rights of the individual to whom it accrued. If the right accrues to a lessee for years of the advowson, and the term expire within six months afterwards, the lessee is entitled to present, notwithstanding the expiration of the term, in preference to the reversioner. Upon what principle can such a claim be sustained, but that of a personal right vested in the individual during the term, distinct from his interest in the advowson? If a feme covert be entitled to an advowson, and the church become void during the coverture, and the husband survive, he shall present; but if the avoidance happened before the coverture, he shall not present, such right being, as it is said, only a chattel real in action, not reduced into possession during the coverture. And if the avoidance happen during the coverture, the husband shall present, though he be not tenant by the curtesy, as in cases where the wife had but a life estate, or where there has been no issue of the marriage: and in such case, if the husband himself die before presentment, his executor shall present, and not the heir (Watson's Clerg. Law, cap. 9.). Can any reason be assigned for this, but that the right which had accrued during the coverture was distinct from the estate in the advowson? The uniformity of the law in all these instances appears to me manifestly to shew the general rule to be, that the right to present to a vacant church vests in the individual to whom it accrues as a personal right, which, though accruing from the advowson, is no part of it, is not annexed to it, and does not follow it when it devolves upon any other person than the individual to whom the right of presentment first accrued. Two instances, indeed, may be mentioned, in which, though the right of presentation does not pass to the succeeding owner of the advowson, it does not pass to the personal representatives of the deceased individual to whom it 1832. MIREHOUSE ບ. RENNELL. |