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and for the sake of attaining uniformity, consistency, and certainty, we must apply those rules where they are not plainly unreasonable and inconvenient, to all cases which arise; and we are not at liberty to reject them and to abandon all analogy to them, in those to which, they have not yet been judicially applied, because we think that the rules are not as convenient and reasonable as we ourselves could have devised. It appears to me to be of great importance to keep this principle of decision steadily in view, not merely for the determination of the particular case, but for the interests of law as a science.

I propose, therefore, to enquire by reference to those sources from which we usually derive them, what the rules and maxims of the common law upon this subject are, and it will be found that there is little difficulty in the enquiry, and none as it seems to me in their application to the facts under consideration.

The decision of the present case, depends upon two propositions, both of which appear to me to be established by authority, and neither of which can be shewn to be unreasonable or inconvenient.

First, That in every presentative benefice, the void turn is a personal right or interest which is disannexed from the estate in the advowson, and vested in the person of the individual to whom the advowson then belongs.

Secondly, That whether valuable in a pecuniary point of view or not, all personal rights and interests of the nature of property, and which are not extinguished by death, (with some exceptions, which are easily explained, and which have no bearing upon the present case,) vest on the death of the owner, in his personal representatives.

The first of these two propositions, I say will be found to be supported by authority; for in every case

which is reported, and in every book in which the subject has been treated of or mentioned, as far as I have been able to discover, the void turn or right of presenting to a vacant presentative benefice, is either expressly stated to be a personal right or interest under a considerable variety of description, or the cases mentioned are capable of a satisfactory explanation upon that supposition only.

It is true that the great majority of the authorities, to which I refer, relate to benefices in lay hands, but all do not; and there is no one case, text book, or dictum, of which I am aware, in which any intimation is conveyed that there is any exception to this general rule. Surely it is impossible to argue with such a constant, uniform, and unvarying course of precedent on one side in all cases in which the subject has been in question; and in the absence of all authority for such an anomaly on the other, that the case of an advowson in spiritual hands is an exception to the general rule; and if the absence of authority were not sufficient, it seems impossible to shew in what way the exception could have arisen.

I have said that this rule exists in all presentative benefices, and I confine it to these, for donatives are a very different species of property, and are governed by different rules. This subject is most clearly explained, and all the authorities referred to, in the very learned judgment of my brother Littledale in the Court below (a), and it is enough to say the result is, that in donatives the complete dominion over the vacant benefice and the freehold in it remains in the patron, together with the right to take the intermediate profits, until it is again granted out by him, to a new incum

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(a) 7 B. & C. 145.

M m

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bent, in the nature of a new investiture. This freehold, in the case of the death of the patron during a vacancy, of course passes to the heir.

I do not propose to occupy your Lordships' time by citing all the authorities, to prove that the void turn of a presentative benefice, is a personal right or interest. They have been all referred to in the argument at your Lordships' bar, and in those in the Court below.

In some cases this interest is called "a chose in action;" Leach v. Babbington (a); in some a "chattel;" as by Periam, Justice, in the Queen's, Fane's, and the Archbishop of Canterbury's case. (b) In others, as in Fitz N. B. Quare Impedit. 34 N. and 3 Keble, 152. "a chattel vested." A "personal chattel;" Vin. Abr. Executor, Z. 2. pl. 4. note. A "chattel vested, and severed from the manor;" Fitz. N. B. 33. P. In one it is called "a personal thing annexed to the person of him who was patron in expectancy at the time of the vacancy:" also,

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a thing in right, power, and authority;" and also “a chose in action, and in effect the fruit and execution of the advowson, and not any advowson;" by six justices. Stephens v. Wall. (c) In 3 Leon. 256. "a power to present, and an authority annexed to the person." In Digby v. Fitch (d), Warburton J. said, "the presentment is the possession in Quare Impedit, as in rent, the receiving, in common, the taking of the profits." In Brokesby v. Wickham (e), it is also compared to rent. And this analogy will be found to be the most perfect; the advowson is the estate, which descends, may be conveyed, limited, and escheats as such: the presentation, is the mode of enjoyment, the profit or rent of the estate; and like the rent or profit belongs to the owner of the estate at the time it accrues in the nature

(a) Cro. Eliz. 811.
(b) 4 Leon, 109.

(c) Dyer, 282.

(d) 1 Brownlow & Goulsborough, 167.

(e) 1 Leon, 17.

of

of a personal chattel, distinct and severed from the inheritance it belongs to him, not as owner, but as an individual.

These authorities, in which the right of presenting on a void turn is treated as a personal right, are not confined to the case of passing to the executor, in the event of the patron's death during vacancy. There are many others, in which it is so treated. A termor in the advowson has a right to present, though after the term has expired, to a vacancy which happened during the term: Fitz. N. B. Quare Impedit, 33 A. Bro. Presentation à l'Eglise, 22.: and he would be equally entitled to the rents in arrear, of an estate granted for the same term. A husband is entitled to present after his wife's death on an avoidance during his wife's lifetime of a church of which she had the advowson: Co. Litt. 120 a. Bro. Present. à l'Eglise, pl. 22.: as he would also be entitled to the arrears of rent of his wife's estate. It is incapable of being assigned, Dyer, 288., or released by one joint tenant to another, 1 Leon, 167., as arrearages of rent are. If the patron be outlawed, in trespass, the church being void, the king is entitled, as to the other goods and chattels of the outlaw, and as he would be to the rents of his lands. Bro. Presentation à l'Eglise, 22. Fitz. N. B. 34. Q. All these are cases of advowsons in lay hands; but a void turn is treated in one case as a personal right, disannexed from the advowson when in spiritual hands. In Fitz, N. B. 34. N, it is said, that if a vicarage happen void, and before the parson present, he is made a bishop, &c., yet he shall present unto this vicarage, for it was a chattel vested in him.

All the authorities which I have cited are uniform, and many others might be adduced, to shew that the right of presentation is a personal right, disconnected from the estate of the advowson, and belongs to the person of the.

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owner; and the last applies to the case of a spiritual person, and is in point.

But, on the part of the successor, it is argued, so far as his case is put upon the ground of authority, that the last case is single and unsupported; and that all the others are anomalies; that, in truth, the general rule is, that the void turn continues part of the advowson; that these exceptions have been introduced in all cases of lay patronage without any reason at all, though they have been too firmly established by authority to be now disturbed; but that the general rule still continues, and ought to be maintained, in the case of spiritual advowOf course, the burthen of proving the existence of this rule lies on those who assert it; but the singularity of this argument, which was urged at your Lordships' bar, is, that whilst it treats all the cases in the reports and books as anomalies and exceptions to a supposed general rule, without the least authority for stating that they are exceptions and anomalies, it asserts the general rule, as will be found, without any authority for it, for there is no one case or dictum cited, which makes any mention of such a general rule.

sons.

But it is contended that it must be implied that there is such a rule, from four cases, which lead to the inference that the next turn continues part of the advowson.

One was, where the incumbent was also patron, and died seised in fee of the advowson, the heir was held entitled to present; and it was said that this must be, because the turn continued a part of the advowson. Hall v. Bishop of Winton. (a) But this case was decided, not on the ground of the next turn continuing parcel of the advowson; but expressly on the ground, that the descent to the heir, and the fall of the avoidance

(a) 3 Lev. 47.

to