own life. In Watson, p. 53. it is said to have been held, 1832. MIREHOUSE บ. RENNELL. 1832. v. RENNELL. laid by the counsel for the Plaintiff in error, in the case of MIREHOUSE Repington v. Governors of Tamworth School (a), in which it was held, that in the case of a donative, the right of donation descends to the heir, and that the executor has no title, which the Court said he would have had if it had been a presentative living. This case is so very miserably and scantily reported, that it is impossible to ascertain the grounds of the decision. It does not militate against the general rule which I have stated in the early part of what I have addressed to your Lordships' notice, as I have above stated, the Court in giving their judgment in the case of Repington v. The Governors of Tamworth School, said, would have governed this case if it had been one of a presentative living. Another ground of objection taken to the Plaintiff's claim is, that admitting the vacant turn to be a chattel, still the Plaintiff is not entitled to present, because it is said the prebendary is a sole corporation, and that a sole corporation cannot take a chattel by succession, except in the case of the king. That a sole corporation, except in the case of the king, cannot take a chattel in succession, is true; but what appears to be the fallacy of the argument in this part of the case is, that the prebendary did not take the void turn by succession. The advowson goes to the next prebendary by succession; and if the void turn went with it, it must be as a part of the advowson, for if disannexed from it, and a chattel, as it is stated by the authorities to be, he could not take it. It appears to me, however, that the moment the vacancy happens, it becomes a chattel vested in the then prebendary in his individual capacity, and passes to his representatives in the same manner as rent or any other fruit of the prebend which has accrued or fallen during his lifetime; (a) 2 Wilson, 150. and and for this I would refer to the case cited in Mr. Justice Holroyd's judgment, from Co. Lit. 99 a., and to the passage in Fitz. N. B. 34. N., that if a vicarage happen to be void, and before the parson presents he be made a bishop, yet he shall present to the vicarage, because it was a chattel vested in him. With respect to any distinction that arises from the form of the presentation of the last incumbent, which is set out in 3 Bingh. 279., supposing your Lordships can take notice of it, which I apprehend your Lordships cannot, framed as the record in this case is, in which the patron states himself to be prebendary of the prebend of South Grantham, anciently founded in the cathedral church of Sarum, and in right of that prebend the true and undoubted patron of the rectory of Welby in the county of Lincoln, in the diocese of Lincoln, I am not aware of any determination that so much need be stated, or that the common form which is to be found in 1 Burn. Eccl. Law, 150., would not be sufficient. That form runs thus: "I Sir W. P. B., true and undoubted patron of the rectory of the parish church of county of in the , , now and in your diocese of vacant by the death of A. B. the last incumbent thereof," &c.; but though that form be necessary where the presentation is made by the prebendary himself, it does not follow that, because the administratrix cannot use that precise form, she cannot present at all. In the common case the executor or administrator cannot use the precise form used by the patron. It must of course be adapted to the particular situation of the party. In considering the answer I shall give to your Lordships' question, I have confined myself to the matters contained in this record. Of the several documents stated in the judgment of the noble Lord who was Chief Justice of the Court of Common Pleas when the case was determined in that court, we have no judicial notice. They were not, they could VOL. VIII. N n not, 1832. MIREHOUSE บ. RENNELL. 1832. MIREHOUSE V. RENNELL, not, have been given in evidence upon this record. Nothing decisive can be drawn from the general history of the foundation of prebendal churches, or the appropriation of livings to them; there does not appear to have been any general mode of appropriation; they are stated to have been made to the body, or to some one particular member of it. Of what was the course pursued in the case before us we have no judicial notice, nor any evidence, either judicially or otherwise, respecting the will of the founder. Under these circumstances, therefore, in a case admitted to be of the first impression, and upon which no precise authority can be found, it seems to me that the safest course is to follow the general rule applicable to presentative benefices. My humble answer to your Lordships' question is, that the right of presentation belongs to the personal represent ative. LITTLEDALE J. concurred with the majority of the Judges; intimating, that he saw no reason for altering the opinion he gave in the court below. PARK J. When the case out of which the question propounded by your Lordships for the opinion of his Majesty's Judges first came before the Court of Common Pleas I took infinite pains by reading much in ecclesiastical history, by consulting our text writers (for as to decided cases there are none), and after that, after hearing two very elaborate arguments at the bar, and long consultations which the then Lord Chief Justice of the Common Pleas, I came to the conclusion that Mrs. Rennell, as administratrix of her deceased husband, was not entitled to that which she claimed; and in giving which opinion I am happy to say I concurred with Lord Chief Justice Best (now one of your Lordships' house), and Mr. Justice Burrough, a man who for legal knowledge and sound and correct understanding was of no ordinary size. To err err in judgment with two such Judges, if err we did, can be no disgrace to any man. When this case was removed from the Common Pleas into the King's Bench by writ of error, three of the learned Judges of that Court reversed the judgment of the Court below against the opinion of Lord Tenterden the Chief Justice. So here again the Judges were three to one against the judgment; thus four Judges were opposed to four, and therefore we need not wonder that this case has found its way into your Lordships' house. I have again heard this case argued with great learning and ability at this bar. I have considered every argument, and studied the judgments of my different learned brethren, and the authorities they have quoted; and though I do not deny that my mind has now and then fluctuated, which great learning and great ingenuity at the bar will frequently occasion, I have arrived at the same conclusion I did in the Common Pleas, namely, that the administratrix of Mr. Rennell is not entitled to the presentation to the church in question, the advowson of which belonged to Mr. Rennell as prebendary in right of his prebend in the church of Salisbury, and that is the answer I propose to give to your Lordships' question. Before I enter into the argument, which must be almost a repetition of what I formerly delivered, and which is now in print, I hope I may be allowed to assert, that had any thing passed either in the Court of King's Bench or in this House which had convinced my understanding that my former opinion was erroneous, I should be one of the first to acknowledge my mistake and to retract my judgment. I have done so on two other Occasions in this House, and shall never be ashamed to make such an avowal, for none but a weak, nay a wicked mind will persist in error if the understanding and more matured reflection convince a person that he has before formed a wrong judgment. It is admitted, then, that it is 1832. MIREHOUSE V. RENNELL |