1832. MIREHOUSE V. RENNELL. first accrued. These are the cases of a bishop and a tenant in capite of the crown, in both of which cases the right belongs to the king. This right of the king upon the death of a bishop is sometimes said to arise by reason of his title to the temporalities, and sometimes by reason of his prerogative. But it is equally consistent with either form of expression, to say that it arises by reason of the relation in which a bishop stands to the king. The temporalities of a bishop, of which his advowsons form a part, are held of the king per baroniam. The title of the king to seize the temporalities upon the bishop's decease, may reasonably be referred to the tenure by which they are held: and the further title to one of the fruits of these temporalities accrued during the life of the bishop, and vested in him as a chattel at his death, may, consistently with analogies of the law, be referred to the same source. That the right in question is a condition of the bishop's tenure per baroniam, there is great reason to suppose, from the similarity of right which accrues to the king in the case of a tenant in capite by knights' service. If tenant in capite be seized of a manor with an advowson appendant, and the church become void, and he die, his heir within age, the king shall not only have the wardship with the right of presenting to such livings as become void during the infancy of the heir, but to any right of presentation which accrued during the life of his tenant. In this respect the case of tenant in capite is strictly analogous to that of a bishop. Yet, if the land be holden by knights' service of a common person, and not of the king, the executors of the deceased tenant shall present, and not the guardian. (Co. Litt. 90. a. 388. a.) And if tenant in socage be seised of an advowson, and the church become void, and he die, his heir under age, age, the guardian in socage shall not present, but the executor or administrator. Sir E. Coke, in one place, gives as a reason why the king shall present in the case of a bishop, that the presentation is but a chose in action (90. a.); and in another, that nothing shall be taken for the presentation, and, therefore, it is no assets (388. a.) The circumstance of the presentation being a chose in action is a singular ground of objection to its going to the executor; and that of its not being assets would be equally applicable to the cases of a tenant who holds in socage, and to a tenant par avail who holds by knights' service; in both which cases the executor is entitled. How far, indeed, it is quite correct to say that a presentation is not assets, will be seen hereafter. If the right of the king to a presentation accrued before the bishop's death, be not a condition of tenure, it may possibly be derived from the same principle which entitled the king to other personal property of the bishop upon his death. It will be recollected that the king is entitled (according to Sir E. Coke, 2 Inst. 491.) to six things: :- the bishop's best horse or palfrey, with his furniture; his cloak, or gown, and tippet; his cap and cover; his bason and ewer; his gold ring; and, lastly, his muta canina, his mew or kennel of hounds; which, says the record quoted by Sir E. Coke, ad dominum regem ratione prerogativæ suæ spectant et pertinent. The origin of the king's right to these chattels is not very clearly ascertained. Coke says, that it was not any mortuary; but was given to the king as a fine, that the bishops might have power to make wills, and grant probates and administrations. Blackstone, on the other hand (vol. ii. p. 245.), thinks that it was in the nature of a mortuary, which he calls a sort of ecclesiastical heriot, a term which imports a duty due to a superior, either by service or custom. Whether it is to be 1832. MIREHOUSE บ. RENNELL. be referred to the cause assigned by the one or the other of these learned persons, it is clear, that in cases to which the king's right did not extend, the chattels would pass to the executor. To shew that the right of presentation is not distinct from the advowson, the following case is relied on in Fitz. N. B. 33. :-" If the king have an advowson in fee which voids, and during the voidance the king granteth the advowson in fee, the king shall not present to this avoidance." Now, it will be observed, that this proposition turns altogether upon the effect of the king's grant; and that a chose in action is grantable by the king, which it is not by a subject. That the proposition is founded on the operation of the king's grant, may in some degree be inferred from what follows, viz. "But if the king have advowson by reason of the temporalities of a bishop, and during the avoidance the king restore the bishop the temporalities, yet he (the king) shall present to the advowson, and not the bishop for this avoidance." In this case the restoration of the temporalities, of which the advowson is part, does not carry with it the presentation which has fallen while the temporalities were in the king's hand; though it is said, in the former part of the passage, that a grant of the advowson would have that effect. A difference, therefore, is taken between a grant of an advowson by the king, and a restoration of the temporalities, including the advowson. Moreover, it must be observed that Sir Matthew Hale, in his notes on Fitz. N. B. does not implicitly adopt the position in the text, but cites some authorities to shew that even the grant of an advowson will not carry the presentation, unless there are special words of the avoidance in the grant. His note is as follows:-"Vide contrà, except there are special words of the avoidance. 16 H. 7. 8.; Dyer, 282. 302. a. 458. a. And see Accordant, 18 Ed. 3. 58. a., but contrary in the case And an case of a comnion person, 11 H. 4. 54. B. I will trouble your Lordships with only one more instance, which occurred in the reign of Queen Elizabeth, to shew how clearly the right of presenting to a void church was considered as distinct from the advowson itself. If an advowson comes to the queen for forfeiture by outlawry, and then the church becomes void, and the queen presents, and then the outlawry is reversed for error, yet the queen shall enjoy the presentment, because it came to the queen as a profit of the advowson; but if the church be void at the time of the outlawry, and the presentment be forfeited as a chattel principal and distinct, and then the outlawry is reversed, the 1832. MIREHOUSE V. RENNELL. party 1832. MIREHOUSE บ. RENNELL. party have restitution of the presentment. Beverleigh Here the queen's right to the presentment, as a profit of the advowson while in her hands, is asserted in the first part of the case: and the subject's right to restitution of the presentment upon an avoidance before the outlawry, is acknowledged in the latter part, because such right of presentment became a distinct chattel before the outlawry. Secondly. I am next to consider the question with reference to the person (a prebendary of a cathedral church) to whom the right of presentation accrued. A prebendary is a sole corporation existing by charter of foundation; or by prescription, which presumes a charter; and all the possessions of the prebend are derived either from the endowment of the founder, or of subsequent benefactors. The right of presentation to a parish church must, therefore, have been derived mediately or immediately from the original patron of the living, who, as such, was seised of a temporal estate in the advowson. The nature and incidents of that estate could not be changed by its transfer to any particular person or body politic. What the heir of a natural person cannot take, will not go to the successor of a sole corporation. For (as it is said in 4 Rep. 65. Fulwood's case) succession in a body politic is inheritance in the case of a body private. And, therefore, in case of a sole corporation or body politic, be it created by charter or prescription, as bishop, parson, vicar, master of an hospital, &c., no chattel either in action or possession shall go in succession, no more than the heir of a private man can have them; but the executors or administrators of the bishop, parson, &c. shall have them. (a) Moore, 269. On |