an advowson appendant, or an advowson in
gross, when
a vacancy occurs, be in tenant in fee or tenant in tail,
and he die without presenting, though the estate will
pass to his heir or devisee in the one case, and to the
issue in tail or remainder-man in the other, the right to
present will devolve
upon his executor or administrator.
F. N. B. 33. P. 34. B. Co. Litt. 388. Dy. 283 a.

21 Hen. 7. pl. 6. Bro. Present. à l'Eglise, 34. If the
right to present when a vacancy occurs be in tenant pur
auter vie, or in a termor, and before he present cestuy
que vie dies, or the term expires, so that the estate which
gave him the right to present is gone, that right ne-
vertheless remains in him, and he may still present.
F. N. B. 34 B. Bro. Pres. à l'Eglise, 22. Again, if hus-
band and wife be seised in fee or in tail, or in right of
dower, in right of the wife, and the church become void,
and the wife die before the husband present, though the
fee descends upon her heir, or the estate tail passes to
the heir in tail, or the estate in dower ceases, the right
to present remains in the husband. 21 Hen. 6. B.
38 Hen. 6. 36. B. 14 Hen. 4. 12. Bro. Pres. à l'Eglise,
pl. 22. Co. Litt. 120. And if a vicarage become va-
cant, and the person to whom the right of present-
ing belong be made bankrupt (whereby his right in
the patronage ceases,) he shall nevertheless present.
F. N. B. 34. N. So, had Mr. Rennell been presented to a
bishopric, would he have lost the right? The general
rule, however, is not disputed; but its application to the
present case is denied, and the ground of that denial is,
first, because Mr. Rennell was a spiritual corporation,
and had this right of presentation annexed to a spiritual
dignity, and clothed with a spiritual trust. My answer
is, that though Mr. Rennell was a spiritual person,
the dignity to which the right of presentation was at-
tached, was not in its creation spiritual; and, that if it
were, it was not clothed with any spiritual trust. Mr.
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R.'s dignity was a prebend only; and at common law a layman might be prebendary. Bland v. Maddox. (a) A prebendary has no cure of souls; he is called "prebendary," because his duty is prebere auxilium episcopo. He has his possessions annexed to his prebend to enable him to provide for himself and his family. It is only by the restraining statutes that he is prevented from alienating, with consent of patron and ordinary, all his possessions to the disherison of his successor; and he has of himself the full power of alienating them so as to bind himself; and it is not of necessity that he should have any possessions. 3 Rep. 75 b. Dy. 61 b. pl. 30. 50 Ed. 3. 26. 2 Roll. Ab. 341. It is only under 13 & 14 Car. 2. c. 4. s. 14. that he need be in holy orders.

But admitting that a prebend were a spiritual dignity, does it follow that church preferment in the gift of the prebendary in right of his prebend, is clothed with a spiritual trust? Is the spiritual preferment to which a bishop is entitled in right of his see, clothed with any spiritual trust? May he not grant away the next avoidance of any church, though the advowson be in gross, which he as bishop is entitled to fill, or as many avoidances as shall happen within his own time? and will not such grant bind himself? Watson says he may make the grant, and it will bind him. Watson, c. 10. p. 135, 136. c. 45. p. 873. If an advowson be appendant to a manor 'usually let, and a lease be made thereof, it will, at all events, bind the bishop who made it, and his lessee shall present. Gibson, 793. says, " Advowsons may be granted by deed or will, either for the inheritance, or one or more turns. But this extends not to ecclesiastical persons seised in right of their churches, nor to colleges or hospitals seised in right of their charter; for they are so far restrained by the statutes of Eliz., that their grants,

(a) Cro. Eliz. 79.

though

But 1832.

though confirmed, will not bind their successors.
they will bind the grantors for their own times." And
if it be made conformably to the statutes, it will bind
the successors. Watson, c. 10. p. 137., c. 45. p. 875,
876. In Smallwood v. Bishop of Coventry (a), the bishop
had made a grant of the next avoidance of an arch-
deaconry, (a spiritual dignity,) and he afterwards dis-
turbed the grantee; the grantee died, and his executor
brought a quare impedit, and the bishop's grant was held
good, and the executors had judgment. In Foord's
case (b), a prebendary of this very church made a lease
of a rectory, parcel of his prebend, for seventy years.
The dean and chapter confirmed it for fifty-one years.
The successor disputed it within fifty-one years. Watson
says, it would have been good for his own time without.
confirmation; Watson, 481.; and all the Court (except
Griffin), held it good for fifty-one years. In London v.
Chapter of Southwell (c), where plaintiff claimed in quare
impedit as lessee of a prebend to which the advowson
belonged, the question was, whether the lease had words
sufficient to carry the prebend or not; and it was only
because the words were not sufficient, that the decision
was against the Plaintiff. Presentations to a vicarage
belong of common right to the parson; but by consent
of patron and ordinary he may grant it to another:
F. N. B. 34. a. The case of Sharrock v. Boucher (d) seems
to shew the distinction between what is clothed with a
spiritual trust, and what is
alienated, and what cannot.
prebend for three lives, and
right to fill up the office of commissary within the pre-
bend was the question; the judges agreed it did not,

(a) Cro. Eliz. 207. (b) 1 Anderson, 47. 5 Rep. 81. Dyer, 338 b. Cro. Eliz. 447-472.

not; and what may be
A prebendary leased his
whether that passed the

(c) Hob. 303.

(d) T. Raym. 88. 1 Lev. 125.

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if the right belonged to his spiritual functions; but on that point they were divided.

The only remaining point is founded upon the rule which prevails in the case of the king and a bishop, and a supposed analogy between that case and this. When a bishop dies, leaving a church in his gift vacant, the king is to present, not the executors of the bishop. And if this rule be founded upon the spiritual character of the act of presenting, it is an authority in this case; if it be founded on the relation between the bishop and the king, and is referred to the king's prerogative, it is not. And I am of opinion it is referable to the relation between the bishop and the king, and to the king's prerogative. The king is the sovereign patron of every bishopric: 17 Ed. 3. 40. And though he gives the chapter leave to elect, the patronage is in him: 17 Ed. 3. 40. And upon the death of a bishop, the see comes to the king as the bishop left it; and if the deanery or a stall be left vacant, the king shall fill it up: 17 Ed. 3. 40. A prebendary of Abergavilly, the bishop (of St. David's), died. The temporalities were seized into the king's hands; a new bishop was appointed, and filled up the stall. The king brought quare impedit, and it was adjudged that he had the right; and a writ was awarded to the bishop: Rer v. Bishop of St. David's, 50 Ed. 3. 26. The temporalities came to the king as founder by prescription: Mall. 65. n. to pl. 1. And this is so high a prerogative, and so far united to and inseparable from the crown, that a subject cannot claim it by grant or prescription: Mall. 65. n. to pl. 6. And if the king die, sede vacante, the succeeding king shall have the temporalities, not the king's executor: Mall. 65. n. to pl. 4. Bro. Chattels, 2. 2 Roll. Abr. 211. And if the king die, leaving a church void, the succeeding king shall present: Semb. Mall. 65. pl. 4. and Mall. 42. pl. 16. Bro. Chattels, 2. 2 Roll.

Abr.

case of the crown only, can a sole take a chattel by suc rule in the king's case

Abr. 211. And this, though the church became void
in the bishop's life, and though the new bishop has sued
out living out of the king's hands before the king pre-
sents: Mall. 65. pl. 5. Watson, 73. F. N. B. 33. n. 2 Roll.
Abr. 343. pl. 5. In the case of a bishopric, therefore, if
the bishop dies, whatever spiritual preferment in the
gift of the bishop was vacant at the bishop's death, and
whatever shall become vacant till the see is filled up,
devolves upon the crown, and is inseparable from the
crown, so that the crown cannot grant it away; and in
case of the demise of the crown, it will pass, not to the
executors of the deceased king, but will accompany the
crown, and go to the succeeding king. Upon this,
two observations occur, one, that in the
crown, and in the case of the
corporator, which the king is,
cession; so that, what is the
where the right to present may, by reason of the pre-
rogative, pass from bishop to king, from king to
king, will not apply to the case of a prebendary where
there is no such prerogative, to pass the right from
prebendary to prebendary: 16 Vin. Q. 14. 17 Vin. Y.
The other, that what is the case of the crown with re-
ference to a bishop who holds per baroniam, is the case
with every other tenant in capite, where the tenancy, by
reason of infancy in the heir, becomes as it were sus-
pended, and the tenancy returns in wardship to the
king. Co. Lit. 388. a. is express upon this point, and he
puts the two cases together, that of the king's tenant in
capite, and that of a bishop's. If the king's tenant by
knight's service in capite be seised of a manor to which
an advowson is appendant, and the church become void
and the tenant die, (leaving his heir in ward,) the king
shall present, not the executor. And if a church, in
the gift of a bishop, become void, and the bishop die,
the king shall present, not the executor: Co. Lit. 388. a.
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