F. H. Rennell, Administratrix of Thomas Rennell, Clerk, against The Bishop of Lincoln, T. H. Mirehouse, and W. S. Mirehouse
| Jurisdiction | England & Wales |
| Judgment Date | 03 July 1827 |
| Date | 03 July 1827 |
| Court | Court of the King's Bench |
English Reports Citation: 108 E.R. 667
IN THE COURT OF KING'S BENCH.
S. C. 9 D. & R. 810; 5 L. J. K. B. O. S. 320: in Common Pleas, 11 Moore, 139; 3 Bing. 223; 4 L. J. C. P. O. S. 1: in House of Lords (sub nom. Mirehouse v. Rennell), 7 Bli. N. S. 241; 5 E. R. 759 (with note): 1 Cl & F. 527; 6 E. R. 1015 (with note); 8 Bing. 490; 1 Moo. & S. 683.
[113] F. H. eennell, Administratrix of Thomas Rennell, Clerk, against the bishop of lincoln, T. H. mirehouse, and W. S. mirehouse. Tuesday, July 3d, 1827. Where a prebendary, having the advowson of a rectory in right of his prebend, dies whilst the church is vacant, his personal representative has the right of presentation for that turn. Per Bayley, Holroyd, and Littledale Js. Lord Tenterden C.J. diss. [S. C. 9 D. & E. 810; 5 L. J. K. B. O. S. 320: in Common Pleas, 11 Moore, 139 ; 3 Bing. 223 ; 4 L. J. C. P. 0. S. 1 : in House of Lords (sub nom. Mirehouse v. Bennett), 1 Bli. N. S. 241; 5 E. E. 759 (with note): 1 Cl. & F. 527 ; 6 E. E. 1015 (with note); 8 Bing. 490; 1 Moo. & S. 683.] Quare impedit. The declaration stated, that whereas one William Dodwell, clerk, doctor in divinity, late prebendary of the prebend or canonry of South Grantham, founded in the cathedral church of Salisbury, heretofore, to wit, on, &c. at, &c. was seised of and in the said prebend or canonry, with its appurtenances, to which said prebend or canonry the advowson of the rectory of the parish church of Welby with its appurtenances then belonged and still belongs, in his demesne as of fee, in right of the said prebend or canonry. And so being such prebendary as aforesaid, and so being seised of and in the said prebend or canonry, with its appurtenances, to which, &c. afterwards, to wit, on, &c. at, &c. presented to the said church of Welby, being then vacant, one William Dodwell, master of arts, his clerk, who, on the said presentation of the said W. D., doctor in divinity, was admitted, instituted, and inducted into the same in the time of peace, &c. That the said W. D., being so seised of the prebend or canonry, with its appurtenances, to which, &c. in his demesne as of fee in right of the said prebend or canonry, afterwards, to wit, on, &c. at, &c. died so seised ; after whose death, to wit, on, &c. at, &c. one Eobert Price, clerk, was lawfully admitted, &e. and afterwards died; after whose death, to wit, on, &c. at, &c. 668 RENNELL V. THE BISHOP OP LINCOLN 7 B. &C.U4. Thomas Eennell, the intestate, was lawfully admitted, [114] instituted, and inducted prebendary of the said prebend or canonry, with its appurtenances, to which, &c. whereby the said Thomas Eennell then and there became and was seised of and in the said prebend or canonry, with its appurtenances, to which, &c. in his demesne as of fee in right of the said prebend or canonry. And the said Thomas Kennell being so seised, the said church, afterwards, to wit, on, &c. at, &e. became vacant by the death of the said Eev. William Dodwell, clerk, the late parson and incumbent thereof, and still is vacant, whereby it then and there belonged to the said Thomas Eennell to present a fit person to the said rectory of the said parish church so vacant as aforesaid. Averment, that afterwards, and whilst the said church was so vacant as aforesaid, to wit, on, &c. at, &c. the said Thomas Eennell died intestate, so seised of and in the said prebend or canonry, with its appurtenances, to which, &c. in his demesne as of fee in right of the said prebend or canonry, without having presented any person to the said rectory of the said parish church; after whose death, and whilst the said church was so vacant as aforesaid, to wit, on, &c. at, &c. administration was granted to the plaintiff, whereupon and whereby it then and there belonged, and now belongs to the said F. H., as administratrix as aforesaid, to present a fit person to the said rectory of the said parish church so being vacant as aforesaid, and which is still vacant, but the said Bishop of Lincoln and the said T. H. Mirehouse and W. S. Mirehouse unjustly hinder her, &e. The Bishop of Lincoln, by his plea, disclaimed except as to the admission, institution, and induction of the rectors to the same rectory and parish church, and all such other things as belong to [115] the Ordinary as Ordinary of that place. The said defendants, T. H. Mirehouse, clerk, and W. S. Mirehouse, clerk, pleaded that after the said T. Eennell had so died without having presented any person to the said rectory of the said parish church, and whilst the said church was so vacant as aforesaid, to wit, on, &c.,at, &c. he, the said defendant, T. H. Mirehouse, clerk, was lawfully admitted, instituted, and inducted prebendary of the said prebend or canonry, with its appurtenances^ to which said prebend or canonry the said advowson with its appurtenances then belonged and still belongs, whereby he the said T. H. Mirehouse then and there became and was seised of and in the said prebend or canonry, with its appurtenances, to which, &c. in his demesne as of fee in right of the said prebend or canonry, and whereby it then and there belonged to him to present a fit person to the said rectory so being vacant as aforesaid, and that the said T. H. Mirehouse presented the said defendant W. S. Mirehouse. Upon the bishop's disclaimer, the plaintiff prayed judgment against him, and demurred to the plea of the other defendants. Joinder in demurrer. The case was argued in C. P., and judgment given for the defendants, whereupon the plaintiff brought a writ of error. The case was argued in Michaelmas term, 7 G. 4, by Patteson for the plaintiff in error. The contending parties upon this record are, the administratrix of the late prebendary of the stall of South Grantham, in the cathedral of Salisbury, to which the advowson of Welby belongs, and the succeeding prebendary; and the question is, who has the right to present for this turn only to the church which was vacant in the lifetime of the [116] late prebendary. It has been suggested, and may be admitted, that it lies on the plaintiff to prove her right, and that if she fails in doing so, it is immaterial whether the defendant has the right or not. With a view, therefore, to defeat the plaintiff, other claims besides that of the defendant have been brought forward, viz. those of the King, the Bishop of Salisbury, as supposed patron of the stall, and the Bishop of Lincoln, as bishop of the diocese in which the church is situate (who, however, be it remembered, disclaims upon this very record). In order to shew the plaintiffs right in this case, it will be attempted to establish to the satisfaction of the Court, first, that where the patron is lay, if a presentative church becomes vacant, and the patron dies without presenting, his executor, and not his heir or devisee, or the next owner of the advowson, shall present, and the reason is, because the moment a church becomes vacant, the turn is separated and disannexed from the advowson, is a chattel, and is vested in the person of the individual to whom the advowson at that moment belongs. Secondly, that, assuming the patronage to be ecclesiastical, still the same law prevails in all cases, except where a bishop is patron, and then the King, by his prerogative, takes the turn as. guardian of the temporalities of the bishopric. Thirdly, that there is not any valid objection on the ground of this advowson being supposed to have been always in ecclesiastical hands; for, first, prebendaries 7 B. & e. m. BENNELL V. THE BISHOP OF LINCOLN 669 need not have been ecclesiastics before the 13 & 14 Car. 2, c. 4, s. 14. Secondly, this is a rectory, and advowsons of rectories were all originally in [117] lay hands, or the hands of some bishop. Wherever the tithes had always been in ecclesiastical bodies, vicarages, and not rectories, were endowed by them. Thirdly, even if the advowson always was in ecclesiastical hands, its descent is regulated in this country by the temporal law, and not the ecclesiastical; and, fourthly, even the ecclesiastical law of this country would not give the turn in this ease to the successor. Lastly, it is proposed to establish that the supposed intention of the donor cannot affect this case : first, because nothing is known as to the donor, the time or circum^ stances of the grant, nor could any evidence be gone into upon this record, framed as it is, if any thing were known. So that no particular intention of the particular donor can be relied on. Secondly, because there is nothing to raise a legal presumption of a general intention in all donors to sole ecclesiastical corporations, that an actual ecclesiastic should always present. If there were, the grantees of such ecclesiastical corporations could never have presented by law, which they have done and may do. Thirdly, any such general intention would equally apply to the donors of advowsons appendant to manors, as to which it is constantly violated, and they are disappended. Fourthly, if any such general or particular intention could be shewn, it could not prevail against the known rule of law, that a corporation sole cannot take a chattel by succession. As to the first point, it is clear that where the owner of the advowson is a layman seised in fee, and dies during the vacancy of the church, the turn goes to his executors, and not to his heir, Watson's Complete Incumbent, chap. 9. 1 Burn's Ecclesiastical Law, tit. Advowson, p. 13, Benefice, p. 138. (This, as a general position, was admitted [118] by the defendant in error.) It may, nevertheless, be necessary to cite some of the authorities, because the reasoning upon which they proceed is applicable to this case. In Stephens v. Wall and Another (Dyer, 282 b.), it was holden by Harper, Weston, and Dyer, that " the grant of the present avoidance is void, because it is a mere personal thing annexed to...
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