Rocko and Bernie Besherse on Asset Protections 10 EST

http://www.efm.bris.ac.uk/het/maitland/maitland
The Corporation Sole
Frederic Maitland
1900

Law Quarterly Review, 16 (1900), pp. 335-354.

Persons are either natural or artificial. The only natural persons are men. The only artificial persons are corporations.
Corporations are either aggregate or sole.
This, I take it, would be an orthodox beginning for a chapter on the English Law of Persons, and such it would have been at any time since the days of Sir Edward Coke.(1*) It makes use, however, of one very odd term which seems to approach
self-contradiction, namely, the term “corporation sole”, and the
question may be raised, and indeed has been raised, whether our
corporation sole is a person, and whether we do well in endeavouring to co-ordinate it with the corporation aggregate and
the individual man. A courageous paragraph in Sir William
Markby’s Elements of Law(2*) begins with the words, “There is a
curious thing which we meet with in English law called a corporation sole,” and Sir William then maintains that we have no
better reason for giving this name to a rector or to the king
than we have for giving it to an executor. Some little debating
of this question will do no harm, and may perhaps do some good,
for it is in some sort prejudicial to other and more important
questions.
A better statement of what we may regard as the theory of
corporations that is prevalent in England could hardly be found than that which occurs in 

Sir Frederick Pollock’s book on
Contract.(3*)*http://books.google.com/books?id=6YYzAAAAIAAJ&printsec=frontcover&source=gbs_v2_summary_r&cad=0#v=onepage&q=&f=false
or Text http://books.google.com/books?id=6YYzAAAAIAAJ&pg=PP10&output=text#c_top

http://journals.cambridge.org/action/displayAbstract?aid=3106308
** He speaks of “the Roman invention, adopted and largely developed in modern systems of law, of constituting the
official character of the holders for the time being of the same
office, or the common interest of the persons who for the time
being are adventurers in the same undertaking, into an artificial
person or ideal subject of legal capacities and duties.” There
follows a comparison which is luminous, even though some would
say that it suggests doubts touching the soundness of the theory
that is being expounded. “If it is allowable to illustrate one
fiction by another, we may say that the artificial person is a
fictitious substance conceived as supporting legal attributes.”
It will not be news to readers of this journal that there are
nowadays many who think that the personality of the corporation
aggregate is in no sense and no sort artificial or fictitious,
but is every whit as real and natural as is the personality of a
man. This opinion, if it was at one time distinctive of a certain
school of Germanists, has now been adopted by some learned
Romanists, and also has found champions in France and Italy.
Hereafter I may be allowed to say a little about it.(4*) Its
advocates, if they troubled themselves with our affairs, would
claim many rules of English law as evidence that favours their
doctrine and as protests against what they call “the Fiction
Theory”. They would also tell us that a good deal of harm was
done when, at the end of the Middle Ages, our common lawyers took
over that theory from the canonists and tried, though often in a
half-hearted way, to impose it upon the traditional English
materials.
In England we are within a measurable distance of the
statement that the only persons known to our law are men and
certain organized groups of men which are known as corporations
aggregate. Could we make that statement, then we might discuss
the question whether the organized group of men has not a will of
its own-a real, not a fictitious, will of its own-which is really
distinct from the several wills of its members. As it is,
however, the corporation sole stops, or seems to stop, the way.
It prejudices us in favour of the Fiction Theory. We suppose that
we personify offices.
Blackstone, having told us that “the honour of inventing”
corporations “entirely belongs to the Romans”, complacently adds
that “our laws have considerably refined and improved upon the
invention, according to the usual genius of the English nation:
particularly with regard to sole corporations, consisting of one
person only, of which the Roman lawyers had no notion”.(5*) If
this be so, we might like to pay honour where honour is due, and
to name the name of the man who was the first and true inventor
of the corporation sole.
Sir Richard Broke died in 1558, and left behind him a Grand
Abridgement, which was published in 1568. Now I dare not say that
he was the father of “the corporation sole”: indeed I do not know
that he ever used precisely that phrase; but more than once he
called a parson a “corporation”, and, after some little search, I
am inclined to believe that this was an unusual statement. Let us
look at what he says:

Corporations et Capacities, pl. 41: Vide Trespas in fine ann.
7 E. 4 fo. 12 per Danby: one can give land to a parson and to his
successors, and so this is a corporation by the common law, and
elsewhere it is agreed that this is mortmain.
Corporations et Capacities, pl. 68: Vide titul’ Encumbent 14,
that a parson of a church is a corporation in succession to
prescribe, to take land in fee, and the like, 39 H. 6, 14 and 7
E. 4, 12.
Encumbent et Glebe, pl. 14 [Marginal note: Corporacion en le
person]: a parson can prescribe in himself and his predecessor,
39 H. 6, fo. 14; and per Danby a man may give land to a parson
and his successors, 7 E. 4, fo. 12; and the same per Littleton in
his chapter of Frankalmoin.

The books that Broke vouches will warrant his law, but they
will not warrant his language. In the case of Henry VI’s
reign(6*) an action for an annuity is maintained against a parson
on the ground that he and all his predecessors have paid it; but
no word is said of his being a corporation. In the case of Edward
IV’s reign we may find Danby’s dictum.(7*) He says that land may
be given to a parson and his successors, and that when the parson
dies the donor shall not enter; but there is no talk of the
parson’s corporateness. So again we may learn from Littleton’s
chapter on frankalmoin(8*) that land may be given to a parson and
his successors; but again there is no talk of the parson’s
corporateness. There is, it is true, another passage in what at
first sight looks like Littleton’s text which seems to imply that
a parson is a body politic, and Coke took occasion of this
passage to explain that every corporation is either “sole or
aggregate of many”, and by so doing drew for future times one of
the main outlines of our Law of Persons.(9*) However, Butler has
duly noted the fact that just the words that are important to us
at the present moment are not in the earliest editions of the
Tenures, and I believe that we should be very rash if we ascribed
them to Littleton.(10*)
Still the most that I should claim for Broke would be that by
applying the term “corporation” to a parson, he suggested that a
very large number of corporations sole existed in England, and so
prepared the way for Coke’s dogmatic classification of persons.
Apparently for some little time past lawyers had occasionally
spoken of the chantry priest as a corporation. So early as 1448 a
writ is brought in the name of “John Chaplain of the Chantry of
B. Mary of Dale”; objection is taken to the omission of his
surname; and to this it is replied that the name in which he sues
may be that by which he is corporate.(11*) Then it would appear
that in 1482 Bryan C.J. and Choke J. supposed the existence of a corporation in a case in which an endowment was created for a
single chantry priest. Fitzherbert, seemingly on the authority of
an unprinted Year Book, represents them as saying that “if the
king grants me licence to make a chantry for a priest to sing in
a certain place, and to give to him and his successors lands to
the value of a certain sum, and I do this, that is a good
corporation without further words”.(12*) Five years later some
serjeants, if I understand them rightly, were condemning as void
just such licences as those which Bryan and Choke had discussed,
and thereby were proposing to provide the lately crowed Henry VII
with a rich crop of forfeitures. Keble opines that such a licence
does not create a corporation (apparently because the king cannot
delegate his corporation-making power), and further opines that
the permission to give land to a corporation that does not
already exist must be invalid.(13*) Whether more came of this
threat — for such it seems to be — I do not know.(14*) Bullying
the chantries was not a new practice in the days of Henry VII’s
son and grandson. In 1454 Romayn’s Chantry, which had been
confirmed by Edward III and Richard II, stood in need of a
private Act of Parliament because a new generation of lawyers was
not content with documents which had satisfied their less
ingenious predecessors.(15*)

Now cases relating to endowed chantry priests were just the
cases which might suggest an extension of the idea of
corporateness beyond the sphere in which organized groups of men
are active. Though in truth it was the law of mortmain, and not
any law touching the creation of fictitious personality, which
originally sent the founders of chantries to seek the king’s
licence, still the king was by this time using somewhat the same
language about the single chantry priest that he had slowly
learned to use about bodies of burgesses and others. The king, so
the phrase went, was enabling the priest to hold land to himself
and his successors. An investigation of licences for the
formation of chantries might lead to some good results. At
present, however, I cannot easily believe that, even when the
doom of the chantries was not far distant, English lawyers were
agreed that the king could make, and sometimes did make, a
corporation out of a single man or out of that man’s official
character. So late as the year 1522, the year after Richard Broke
took his degree at Oxford, Fineux, C.J. B.R., was, if I catch the
sense of his words, declaring that a corporation sole would be an
absurdity, a nonentity. “It is argued”, he said, “that the Master
and his Brethren cannot make a gift to the Master, since he is
the head of the corporation. Therefore let us see what a corporation is and what kinds of corporations there are.
A
corporation is an aggregation of head and body: not a head by
itself, nor a body by itself; and it must be consonant to reason,
for otherwise it is worth nought. For albeit the king desires to
make a corporation of J.S., that is not good, for common reason
tells us that it is not a permanent thing and cannot have
successors.”(16*)

The Chief Justice goes on to speak of the
Parliament of King, Lords, and Commons as a corporation by the
common law. He seems to find the essence of corporateness in the
permanent existence of the organized group, the “body” of “members”, which remains the same body though its particles change, and he denies that this phenomenon can exist where only
one man is concerned. This is no permanence. The man dies and, if
there is office or benefice in the case, he will have no
successor until time has elapsed and a successor has been
appointed. That is what had made the parson’s case a difficult
case for English lawyers. Fineux was against feigning
corporateness where none really existed. At any rate, a good deal
of his judgment seems incompatible with the supposition that
“corporation sole” was in 1522 a term in current use.
That term would never have made its fortune had it not been
applied to a class much wider and much less exposed to
destructive criticism than was the class of permanently endowed
chantry priests.
That in all the Year Books a parochial rector is
never called a corporation I certainly dare not say. Still, as a
note at the end of this paper may serve to show, I have
unsuccessfully sought the word in a large number of places where
it seemed likely to be found if ever it was to be found at all.
Such places are by no means rare. Not unfrequently the courts
were compelled to consider what a parson could do and could not
do, what leases he could grant, what charges he could create,
what sort of estate he had in his glebe. Even in Coke’s time what
we may call the theoretical construction of the parson’s relation
to the glebe had hardly ceased to be matter of debate. “In whom
the fee simple of the glebe is”, said the great dogmatist, “is a
question in our books.”(17*) Over the glebe, over the parson’s
freehold, the parson’s fee, the parson’s power of burdening his
church or his successors with pensions or annuities, there had
been a great deal of controversy; but I cannot find that into
this controversy the term “corporation” was introduced before the
days of Richard Broke.
If now we turn from the phrase to the legal phenomena which
it is supposed to describe, we must look for them in the
ecclesiastical sphere.

 Coke knew two corporations sole that were
not ecclesiastical, and I cannot find that he knew more. They
were a strange pair: the king(18*) and the chamberlain of the
city of London.(19*) As to the civic officer, a case from 1468
shows us a chamberlain suing on a bond given to a previous
chamberlain “and his successors”. 

The lawyers who take part in
the argument say nothing of any corporation sole, and seem to
think that obligations could be created in favour of the
Treasurer of England and his successors or the Chief Justice and
his successors.(20*)

As to the king, I strongly suspect that Coke
himself was living when men first called the king a corporation
sole, though many had called him the head of a corporation. But
of this at another time. The centre of sole corporateness, if we
may so speak, obviously lies among ecclesiastical institutions.
If there are any, there are thousands of corporations sole within
the province of church property law.
But further, we must concentrate our attention upon the
parish parson. We may find the Elizabethan and Jacobean lawyers
applying the new term to bishops, deans, and prebendaries; also
retrospectively to abbots and priors. Their cases, however,
differed in what had been a most important respect from the case
of the parochial rector.

 They were members, in most instances
they were heads, of corporations aggregate. As is well known, a
disintegrating process had long been at work within the
ecclesiastical groups, more especially within the cathedral
groups.(21*) Already when the Year Books began their tale this
process had gone far. The bishop has lands that are severed from
the lands of the cathedral chapter or cathedral monastery; the
dean has lands, the prebendary has lands or other sources of
revenue. These partitions have ceased to be merely matters of
internal economy; they have an external validity which the
temporal courts recognize.(22*) Still, throughout the Middle Ages
it is never forgotten that the bishop who as bishop holds lands
severed from the lands of the chapter or the convent holds those
lands as head of a corporation of which canons or monks are
members. This is of great theoretical importance, for it obviates
a difficulty which our lawyers have to meet when they consider
the situation of the parochial rector. In the case of the bishop
a permanent “body” exists in which the ownership, the full fee
simple, of lands can be reposed. 

“For”, as Littleton says, “a
bishop may have a writ of right of the tenements of the right of
his church, for that the right is in his chapter, and the fee
simple abideth in him and his chapter.”(23*) The application of
the term “corporation sole” to bishops, deans, and prebendaries
marked the end of the long disintegrating process, and did some
harm to our legal theories. If the episcopal lands belong to the
bishop as a “corporation sole”, why, we may ask, does he require
the consent of the chapter if he is to alienate them? The
“enabling statute” of Henry VIII and the “disabling statutes” of
Elizabeth deprived this question of most of its practical
importance. Thenceforward in the way of grants or leases the
bishop could do little with, that he could not do without, the
chapter’s consent.(24*) 

It is also to be remembered that an
abbot’s powers were exceedingly large; he ruled over a body of
men who were dead in the law, and the property of his “house” or
“church” was very much like his own property. Even if without the
chapter’s consent he alienated land, he was regarded, at least by
the temporal courts, much rather as one who was attempting to
wrong his successors than as one who was wronging that body of
“incapables” of which he was the head. 

It is to be remembered
also that in England many of the cathedrals were monastic. This
gave our medieval lawyers some thoughts about the heads of
corporations aggregate and about the powerlessness of headless
bodies which seem strange to us. A man might easily slip from the
statement that the abbey is a corporation into the statement that
the abbot is a corporation, and I am far from saying that the
latter phrase was never used so long as England had abbots in
it;(25*) but, so far as I can see, the “corporation sole” makes
its entry into the cathedral along with the royal supremacy and
other novelties. Our interest lies in the parish church.(26*)
Of the parish church there is a long story to be told. Dr
Stutz is telling it in a most interesting manner.(27*) Our own
Selden, however, was on the true track; he knew that the patron
had once been more than a patron,(28*) and we need go no further
than Blackstone’s Commentaries to learn that Alexander III did
something memorable in this matter.(29*) To be brief: in the
twelfth century we may regard the patron as one who has been the
owner of church and glebe and tithe, but an owner from whom
ecclesiastical law has gradually been sucking his ownership. It
has been insisting with varying success that he is not to make
such profit out of his church as his heathen ancestor would have
made out of a god-house. He must demise the church and an
appurtenant manse to an ordained clerk approved by the bishop.
The ecclesiastical “benefice” is the old Frankish beneficium, the
old land-loan of which we read in all histories of
feudalism.(30*) 

In the eleventh century occurred the
world-shaking quarrel about investitures. Emperors and princes
had been endeavouring to treat even ancient cathedrals as their
“owned churches.” It was over the investiture of bishops that the
main struggle took place; nevertheless, the principle which the
Hildebrandine papacy asserted was the broad principle, “No
investiture by the lay-hand”. Slowly in the twelfth century, when
the more famous dispute had been settled, the new rule was made
good by constant pressure against the patrons or owners of the
ordinary churches. Then a great lawyer, Alexander III (1159-81),
succeeded, so we are told, in finding a new “juristic basis” for
that right of selecting a clerk which could not be taken away
from the patron. That right was to be conceived no longer as an
offshoot of ownership, but as an outcome of the Church’s
gratitude towards a pious founder. 

Thus was laid the groundwork
of the classical law of the Catholic Church about the ius patronatus; and, as Dr Stutz says, the Church was left free to show itself less and less grateful as time went on.
One part of Pope Alexander’s scheme took no effect in England. Investiture by the lay hand could be suppressed. The
parson was to be instituted and inducted by his ecclesiastical superiors. 

Thus his rights in church and glebe and tithe would no longer appear as rights derived out of the patron’s ownership,
and the patron’s rights, if they were to be conceived — and in England they certainly would be conceived as rights of a proprietary kind, would be rights in an incorporeal thing, an “objectified” advowson. But with successful tenacity Henry II and his successors asserted on behalf of the temporal forum no merely
concurrent, but an absolutely exclusive jurisdiction over all disputes, whether possessory or petitory, that touched the
advowson. One consequence of this most important assertion was that the English law about this matter strayed away from the jurisprudence of the Catholic Church. If we compare what we have
learned as to the old English law of advowsons with the ius
commune of the Catholic Church as it is stated by Dr Hinschius we shall see remarkable differences, and in all cases it is the law of England that is the more favourable to pattonage.(31*) 

Also in England we read of survivals which tell us that the old notion of
the patron’s ownership of the church died hard.(32*)  But here we are speaking of persons. If the patron is not,
who then is the owner of the church and glebe? The canonist will “subjectify” the church. The church (subject) owns the church object). Thus he obtains temporary relief.(33*) 

There remains the question how this owning church is to be conceived; and a
troublesome question it is. What is the relation of the ecclesia particularis (church of Ely or of Trumpington) to the universal church? Are we to think of a persona ficta, or of a patron saint,
or of the Bride of Christ, or of that vast corporation aggregate
the congregatio omnium fidelium, or of Christ’s vicar at Rome, or
of Christ’s poor throughout the world; or shall we say that walls
are capable of retaining possession? Mystical theories break down
: persons who can never be in the wrong are useless in a court of law.

 Much might be and much was written about these matters, and we may observe that the extreme theory which places the ownership
of all church property in the pope was taught by at least one English canonist.(34*) Within or behind a subjectified church lay
problems which English lawyers might well endeavour to avoid.
On the whole it seems to me that a church is no person in the
English temporal law of the later Middle Ages. 

I do not mean that
our lawyers maintain one consistent strain of language. That is
not so. They occasionally feel the attraction of a system which
would make the parson a guardian or curator of an ideal ward.
Ecclesia fungitur vice minoris is sometimes on their lips.(35*)
The thought that the “parson” of a church was or bore the
“person” of the church was probably less distant from them than
it is from us, for the two words long remained one word for the
eye and for the ear. 

Coke, in a theoretical moment, can teach
that in the person of the parson the church may sue for and
maintain “her” right.(36*) Again, it seems that conveyances were
sometimes made to a parish church without mention of the parson,
and when an action for land is brought against a rector he will
sometimes say, 

“I found my church seised of this land, and
therefore pray aid of patron and ordinary.”(37*) We may, however,
remember at this point that in modern judgments and in Acts of
Parliament lands are often spoken of as belonging to “a charity”.
Still, our books do not teach us that charities are persons.
Lands that belong to a charity are owned, if not by a
corporation, then by some man or men. Now we must not press this
analogy between medieval churches and modern charities very far,
for medieval lawyers were but slowly elaborating that idea of a
trust which bears heavy weights in modern times and enables all
religious bodies, except one old-fashioned body, to conduct their
affairs conveniently enough without an apparatus of corporations
sole. still, in the main, church and charity seem alike.

 Neither
ever sues, neither is ever sued. The parson holds land “in right
of his church”. So the king can hold land or claim a wardship or
a presentation, sometimes “in right of his crown”, but sometimes
“in right of” an escheated honour or a vacant bishopric. So too
medieval lawyers were learning to say that an executor will own
some goods in his own right and others en autre droit.
The failure of the church to become a person for English
temporal lawyers is best seen in a rule of law which can be
traced from Bracton’s day to Coke’s through the length of the
Year Books. 

A bishop or an abbot can bring a writ of right, a
parson cannot. The parson requires a special action, the iurata
utrum; it is a singulare beneficium(38*) provided to suit his
peculiar needs. The difficulty that had to be met was this: You
can conceive ownership, a full fee simple, vested in a man “and
his heirs”, or in an organized body of men such as a bishop and
chapter, or abbot and convent, but you cannot conceive it
reposing in the series, the intermittent series, of parsons.
True, that the iurata utrum will be set to inquire whether a
field belongs (pertinet) to the plaintiff’s “church”. But the
necessity for a special action shows us that the pertinet of the
writ is thought of as the pertinet of appurtenancy, and not as
the pertinet of ownership. As a garden belongs to a house, as a
stopper belongs to a bottle, not as house and bottle belong to a
man, so the glebe belongs to the church.
If we have to think of “subjectification” we have to think of
“objectification” also. Some highly complex “things” were made by
medieval habit and perceived by medieval law. One such thing was
the manor; another such thing was the church. Our pious ancestors
talked of their churches much as they talked of their manors.
They took esplees of the one and esplees of the other; they
exploited the manor and exploited the church. True, that the
total sum of right, valuable right, of which the church was the
object might generally be split between parson, patron, and
ordinary. Usually the claimant of an advowson would have to say
that the necessary exploitation of the church had been performed,
not by himself, but by his presentee. But let us suppose the
church impropriated by a religious house, and listen to the head
of that house declaring how to his own proper use he has taken
esplees in oblations and obventions, great tithes, small tithes,
and other manner of tithes.(39*) Or let us see him letting a
church to farm for a term of years at an annual rent.(40*) The
church was in many contexts a complex thing, and by no means
extra commercium. I doubt if it is generally known how much was
done in the way of charging “churches” with annuities or pensions
in the days of Catholicism. On an average every year seems to
produce one law-suit that is worthy to be reported and has its
origin in this practice. In the Year Books the church’s
objectivity as the core of an exploitable and enjoyable mass of
wealth is, to say the least, far more prominent than its
subjectivity.(41*)
“If”, said Rolfe Serj., in 1421, “a man gives or devises land
to God and the church of St Peter of Westminster, his gift is
good, for the church is not the house nor the walls, but is to be
understood as the ecclesia spiritualis, to wit, the abbot and
convent, and because the abbot and convent can receive a gift,
the gift is good… but a parish church can only be understood as
a house made of stones and walls and roof which cannot take a
gift or feoffment.”(42*) We observe that God and St Peter are
impracticable feoffees, and that the learned serjeant’s
“spiritual church” is a body of men at Westminster. It seems to
me that throughout the Middle Ages there was far more doubt than
we should expect to find as to the validity of a gift made to
“the [parish] church of X”, or to “the parson of X and his
successors”, and that Broke was not performing a needless task
when he vouched Littleton and Danby to warrant a gift that took
the latter of these forms. Not much land was, I take it, being
conveyed to parish churches or parish parsons, while for the old
glebe the parson could have shown no title deeds. It had been
acquired at a remote time by a slow expropriation of the patron.
The patron’s claim upon it was never quite forgotten. Unless
I have misread the books, a tendency to speak of the church as a
person grows much weaker as time goes on. There is more of it in
Bracton than in Littleton or Fitzherbert.(43*) English lawyers
were no longer learning from civilians and canonists, and were
constructing their grand scheme of estates in land. It is with
their heads full of “estates” that they approach the problem of
the glebe, and difficult they find it. At least with the consent
of patron and ordinary, the parson can do much that a tenant for
life cannot do;(44*) and, on the other hand, he cannot do all
that can be done by a tenant in fee simple. It is hard to find a
niche for the rector in our system of tenancies. But let us
observe that this difficulty only exists for men who are not
going to personify churches or offices.
There is an interesting discussion in 1430.(45*) The
plaintiff’s ancestor had recovered land from a parson, the
predecessor of the defendant, by writ of Cessavit; he now sues by
Scire facias, and the defendant prays aid of the patron; the
question is whether the aid prayer is to be allowed.
Cottesmore J. says:

I know well that a parson has only an estate for the term of
his life; and it may be that the plaintiff after the judgment
released to the patron, and such a release would be good enough,
for the reversion of the church is in him [the patron], and this
release the parson cannot plead unless he has aid. And I put the
case that a man holds land of me for the term of his life, the
reversion being in me; then if one who has right in the land
releases to me who am in reversion, is not that release good? So
in this case.

Paston J. takes the contrary view:

I learnt for law that if Praecipe quod reddat is brought
against an abbot or a parson, they shall never have aid, for they
have a fee simple in the land, for the land is given to them and
their successors, so that no reversion is reserved upon the
gift…. If a writ of right is brought against them they shall
join the mise upon the mere droit, and that proves that they have
a better estate than for term of life. And I have never seen an
estate for life with the reversion in no one; for if the parson
dies the freehold of the glebe is not in the patron, and no writ
for that land is maintainable against any one until there is
another parson. So it seems to me that aid should not be granted.

Then speaks Babington C.J., and, having put an ingenious case
in which, so he says, there is a life estate without a reversion,
he proceeds to distinguish the case of the abbot from that of the
parson:

When an abbot dies seised the freehold always remains in the
house (meason) and the house cannot be void… but if a parson
dies, then the church is empty, and the freehold in right is in
the patron, notwithstanding that the patron can take no advantage
of the land; and if a recovery were good when the patron was not
made party, then the patronage would be diminished, which would
be against reason. So it seems to me that [the defendant] shall
have aid.

Two other judges, Strangways and Martin, are against the aid
prayer; Martin rejects the theory that the parson is tenant for
life, and brings into the discussion a tenant in tail after
possibility of issue extinct. On the whole the case is
unfavourable to the theory which would make the parson tenant for
life and the patron reversioner, but that this theory was held in
1430 by a Chief Justice of the Common Pleas seems plain and is
very remarkable. The weak point in the doctrine is the admission
that the patron does not take the profits of the vacant church.
These, it Seems settled, go to the ordinary,(46*) so that the
patron’s “reversion” (if any) looks like a very nude right. But
the Chief Justice’s refusal to repose a right in an empty
“church”, while he will place one in a “house” that has some
monks in it, should not escape attention.
Nearly a century later, in 1520, a somewhat similar case came
before the court,(47*) and we still see the same diversity of
opinion. Broke J. (not Broke of Abridgement) said that the parson
had the fee simple of the glebe in iure ecclesiae.

It seems to me (said Pollard J.), that the fee simple is in
the patron; for [the parson] has no inheritance in the benefice
and the fee cannot be in suspense, and it must be in the patron,
for the ordinary only has power to admit a clerk…. And although
all parsons are made by the act of the ordinary, there is nothing
in the case that can properly be called succession. For if land
be given to a parson and his successor, that is not good, for he
[the parson] has no capacity to take this; but if land be given
Priori et Ecclesiae that is good, because there is a
corporation…. And if the parson creates a charge, that will be
good only so long as he is parson, for if he dies or resigns, his
successor shall hold the land discharged; and this proves that
the parson has not the fee simple. But if in time of vacation
patron and ordinary charge the land, the successor shall hold it
charged, for they [patron and ordinary] had at the time the whole
interest.(48*)

Eliot J. then started a middle opinion:

It seems to me that the parson has the fee in iure ecclesiae,
and not the patron-as one is seised in fee in iure uxoris suae –
and yet for some purposes he is only tenant for life. So tenant
in tail has a fee tail, and yet he has only for the term of his
life, for if he makes a lease or grants a rent charge, that will
be only for the term of his life…. As to what my brother
Pollard says, namely, that in time of vacation patron and
ordinary can create a charge, that is not so.

Then Brudenel C.J. was certain that the parson has a fee
simple:

He has a fee simple by succession, as an heir [has one] by
inheritance, and neither the ordinary nor the patron gives this
to the parson.

Pollard’s opinion was belated; but we observe that on the eve
of the Reformation it was still possible for an English judge to
hold that the ownership, the fee simple, of the church is in the
patron. And at this point it will not be impertinent to remember
that even at the present day timber felled on the glebe is said
to belong to the patron.(49*)
In the interval between these two cases Littleton had
written. He rejected the theory which would place the fee simple
in the patron; but he also rejected that which would place it in
the parson. Of any theory which would subjectify the church or
the parson’s office or dignity he said nothing; and nothing of
any corporation sole. Let us follow his argument.
He is discussing “discontinuance” and has to start with this,
that if a parson or vicar grants land which is of the right of
his church and then dies or resigns, his successor may
enter.(50*) In other words, there has been no discontinuance.
“And”, he says, “I take the cause to be for that the parson or
vicar that is seised as in right of his church hath no right of
the fee simple in the tenements, and the right of the fee simple
doth not(51*) abide in another person.” That, he explains, is the
difference between the case of the parson and the case of a
bishop, abbot, dean, or master of a hospital; their alienations
may be discontinuances, his cannot; “for a bishop may have a writ
of right of the tenements of the right of the church, for that
the right is in his chapter, and the fee simple abideth in him
and his chapter…. And a master of a hospital may have a writ of
right because the right remaineth in him and in his confreres,
&c.; and so in other like cases. But a parson or vicar cannot
have a writ of right, &c”. A discontinuance, if I rightly
understand the matter, involves the alienation of that in which
the alienor has some right, but some right is vested in another
person. In the one case the bishop alienates what belongs to him
and his chapter; in the other case the parson alienates what
belongs to no one else.
Then we are told(52*) that the highest writ that a parson or
vicar can have is the Utrum, and that this “is a great proof that
the right of fee is not in them, nor in others. But the right of
the fee simple is in abeyance; that is to say, that it is only in
the remembrance, intendment, and consideration of law, for it
seemeth to me that such a thing and such a right which is said in
divers books to be in abeyance is as much as to say in Latin,
Talis res, vel tale rectum, quae vel quod non est in homme adtunc
superstite, sed tantummodo est et consistit in consideratione et
intelligentia legis, et, quod alii dixerunt, talem rem aut tale
rectum fore in nubibus”. Yes, rather than have any dealings with
fictitious persons, subjectified churches, personified dignities,
corporations that are not bodies, we will have a subjectless
right, a fee simple in the clouds.(53*)
Then in a very curious section Littleton(54*) has to face the
fact that the parson with the assent of patron and ordinary can
charge the glebe of the parsonage perpetually. Thence, so he
says, some will argue that these three persons, or two or one of
them, must have a fee simple. Littleton must answer this
argument. Now this is one of those points at which a little
fiction might give us temporary relief. We might place the fee
simple in a fictitious person, whose lawfully appointed guardians
give a charge on the property of their imaginary ward. We might
refer to the case of a town council which sets the common seal to
a conveyance of land which belongs to the town. But, rather than
do anything of the kind, Littleton has recourse to a wholly
 

different principle.
The charge has been granted by parson, patron, and ordinary,
and then the p
 

 
arson dies. His successor cannot come to the church
but by the presentment of the patron and institution of the
ordinary, “and for this cause he ought to hold himself content
and agree to that which his patron and the ordinary have lawfully
done before.” In other words, the parson is debarred by decency
and gratitude from examining the mouth of the gift horse. No one
compelled him to accept the benefice. Perhaps we might say that
by his own act he is estopped from quarrelling with the past acts
of his benefactors. Such a piece of reasoning would surely be
impossible to any one who thought of the church or the rector’s
office as a person capable of sustaining proprietary rights.
Before Littleton’s Tenures came to Coke’s hands, Broke or
some one else had started the suggestion that a parson was a
corporation, or might be likened to a corporation. Apparently
that suggestion was first offered by way of explaining how it
came about that a gift could be made to a parson and his
successors. Now it seems to me that a speculative jurist might
have taken advantage of this phrase in order to reconstruct the
theory of the parson’s relation to the glebe. He might have said
that in this case, as in the case of the corporation aggregate,
we have a persona ficta, an ideal subject of rights, in which a
fee simple may repose; that the affairs of this person are
altered by a single man, in the same way in which the affairs of
certain other fictitious persons are administered by groups of
men; and that the rector therefore must be conceived not as a
proprietor but as a guardian, though his powers of administration
are large, and may often be used for his own advantage. And Coke,
in his more speculative moments, showed some inclination to tread
this path. Especially is this the case when he contrasts “persons
natural created of God, as J.S., J.N., &c., and persons
incorporate or politic created by the policy of man”, and then
adds that the latter are “of two sorts, viz. either sole or
aggregate.”(55*) But to carry that theory through would have
necessitated a breach with traditional ideas of the parson’s
estate and a distinct declaration that Littleton’s way of
thinking had become antiquated.(56*) As it is, when the critical
point is reached and we are perhaps hoping that the new-found
corporation sole will be of some real use, we see that it gives
and can give Coke no help at all, for, after all, Coke’s
corporation sole is a man: a man who fills an office and can hold
land “to himself and his successors”, but a mortal man.
When that man dies the freehold is in abeyance. Littleton had
said that this happened “if a parson of a church dieth”. Coke
adds:(57*) “So it is of a bishop, abbot, dean, archdeacon,
prebend, vicar, and of every other sole corporation or body
politic, presentative, elective, or donative, which inheritances
put in abeyance are by some called haereditates iacentes.” So
here we catch our corporation sole in articulo mortis. If God did
not create him, then neither the inferior nor yet the superior
clergy are God’s creatures.
So much as to the state of affairs when there is no parson:
the freehold is in abeyance, and “the fee simple and right is in
abeyance”. On the other hand, when there is a parson, then, says
Coke,(58*) “for the benefit of the church and of his successor he
is in some cases esteemed in law to have a fee simple qualified;
but, to do anything to the prejudice of his successor, in many
cases the law adjudgeth him to have in effect but an estate for
life”. And again, “It is evident that to many purposes a parson
hath but in effect an estate for life, and to many a qualified
fee simple, but the entire fee and right is not in him.”(59*)
This account of the matter seems to have been accepted as
final. Just at this time the Elizabethan statutes were giving a
new complexion to the practical law. The parson, even with the
consent of patron and ordinary, could no longer alienate or
charge the glebe, and had only a modest power of granting leases.
Moreover, as the old real actions gave place to the action of
ejectment, a great deal of the old learning fell into oblivion.
Lawyers had no longer to discuss the parson’s aid prayer or his
ability or inability to join the mise on the mere droit, and it
was around such topics as these that the old indecisive battles
had been fought. Coke’s theory, though it might not be neat, was
flexible: for some purposes the parson had an estate for life,
for others a qualified fee. And is not this the orthodoxy of the
present day? The abeyance of the freehold during the vacancy of
the benefice had the approval of Mr Challis;(60*) the “fee simple
qualified” appears in Sir H. Elphinstone’s edition of Mr
Goodeve’s book.(61*)
Thus, so it seems to me, our corporation sole refuses to
perform just the first service that we should require at the
hands of any reasonably useful persona ficta. He or it refuses to
act as the bearer of a right which threatens to fall into
abeyance or dissipate itself among the clouds for want of a
“natural” custodian. I say “he or it”; but which ought we to say?
Is a beneficed clergyman — for instance, the Rev. John Styles –
a corporation sole, or is he merely the administrator or
representative of a corporation sole? Our Statute Book is not
very consistent. When it was decreeing the Disestablishment of
the Irish Church it declared that on 1st January, 1871, every
ecclesiastical corporation in Ireland, whether sole or aggregate,
should be dissolved,(62*) and it were needless to say that this
edict did not contemplate a summary dissolution of worthy
divines. But turn to a carefully worded Statute of Limitations.
“It shall be lawful for any archbishop, bishop, dean, prebendary,
parson, vicar, master of hospital, or other spiritual or
eleemosynary corporation sole, to make an entry or distress, or
to bring an action or suit to recover any land or rent within
such period as hereinafter is mentioned next after the time at
which the right of such corporation sole or of his predecessor…
shall first have accrued.”(63*) Unquestionably for the draftsman
of this section the corporation sole was, as he was for Coke, a
man, a mortal man.
If our corporation sole really were an artificial person
created by the policy of man we ought to marvel at its
incompetence. Unless custom or statute aids it, it cannot (so we
are told) own a chattel, not even a chattel real.(64*) A
different and an equally inelegant device was adopted to provide
an owning “subject” for the ornaments of the church and the
minister thereof-adopted at the end of the Middle Ages by lawyers
who held themselves debarred by the theory of corporations from
frankly saying that the body of parishioners is a corporation
aggregate. And then we are also told that in all probability a
corporation sole “cannot enter into a contract except with
statutory authority or as incidental to an interest in
land”.(65*) What then can this miserable being do? It cannot even
hold its glebe tenaciously enough to prevent the freehold falling
into abeyance whenever a parson dies.
When we turn from this mere ghost of a fiction to a true
corporation, a corporation aggregate, surely the main phenomenon
that requires explanation, that sets us talking of personality
and, it may be, of fictitious personality, is this, that we can
conceive and do conceive that legal transactions, or acts in the
law, can take place and do often take place between the
corporation of the one part and some or all of the corporators of
the other part. A beautiful modern example(66*) shows us eight
men conveying a colliery to a company of which they are the only
members; and the Court of Appeal construes this as a “sale” by
eight persons to a ninth person, though the price consists not in
cash, but in the whole share capital of the newly formed
corporation.
But to all appearance there can be no legal transaction, no
act in the law, between the corporation sole and the natural man
who is the one and only corporator. We are told, for example,
that “a sole corporation, as a bishop or a parson, could not make
a lease to himself, because he cannot be both lessor and
lessee”.(67*) We are told that “if a bishop hath lands in both
capacities he cannot give or take to or from himself”.(68*) Those
who use such phrases as these show plainly enough that in their
opinion there is no second “person” involved in the cases of
which they speak: “he” is “himself”, and there is an end of the
matter.(69*) I can find no case in which the natural man has sued
the corporation sole or the corporation sole has sued the natural
man.
When a man is executor, administrator, trustee, bailee, or
agent, we do not feel it necessary to speak of corporateness or
artificial personality, and I fail to see why we should do this
when a man is a beneficed clerk. Whatever the Romans may have
done — and about this there have been disputes enough(70*) — we
have made no person of the hereditas iacens. On an intestate’s
death we stopped the gap with no figment, but with a real live
bishop, and in later days with the Judge of the Probate Court:
English law has liked its persons to be real. Our only excuse for
making a fuss over the parson is that, owing to the slow
expropriation of the patron, the parson has an estate in church
and glebe which refuses to fit into any of the ordinary
categories of our real property law; but, as we have already
seen, our talk of corporations sole has failed to solve or even
to evade the difficulty. No one at the present day would dream of
introducing for the first time the scheme of church property law
that has come down to us, and I think it not rash to predict
that, whether the Church of England remains established or no,
churches and glebes will some day find their owners in a
corporation aggregate or in many corporations aggregate.(71*) Be
that as it may, the ecclesiastical corporation sole is no
“juristic person”; he or it is either natural man or juristic
abortion.
The worst of his or its doings we have not yet considered. He
or it has persuaded us to think clumsy thoughts or to speak
clumsy words about King and Commonwealth.(72*)

NOTES:

1. Co. Lit 2a, 2502.

2. Markby, Elements of Law, section 145.

3. Pollack, Contract, ed. 6, p. 107.

4. Dr Otto Gierke, of Berlin, has been its principal upholder.

5. 1 Comm. 469.

6. 39 Hen. VI, f. 13 (Mich. pl. 17).

7. Edw. IV, f. 12 (Trin. pl. 2).

8. Lit sec. 134.

9. Let. sec. 413; Co. Lit. 250a. Other classical passages are Co.
Lit. 2a; Sutton’s Hospital Case (1612), 10 Rep. 29b.

10. Littleton is telling us that no dying seised tolls an entry
if the lands pass by “succession”. He is supposed to add: “Come
de prelates, abdates, priours, deans, ou parson desglyse [ou
dauter corps politike].” But the words that are here bracketed
are not in the Cambridge MS.; nor in the edition by Letton and
Machlinia; nor in the Rouen edition; nor in Pynson’s. On the
other hand they stand in one, at least, of Redman’s editions.
[They are regarded as spurious in Wambaugh's edition of 1903.]

11. 27 Hen. VI, f. 3 (Mich. pl. 24): “poet estre entende que il
est corporate par tiel nosme.”

12. Fitz. Abr. Graunt, pl. 30, citing T. 22 Edw. IV and M. 21
Edw. IV, 56. The earlier part of the case stands in Y.B. 21 Edw.
IV, f. 55 (Mich. pl. 28). The case concerning the municipal
corporations of Norwich, and the dictum must have been
gratuitous.

13. 2 Hen. VII, f. 13 (Hil. pl. 16).

14. 20 Hen. VII, f. 7 (Mich. pl. 17): Rede J. seems to say that
such a licence would make a corporation.

15. Rot. Parl. V. 258. It had been supposed for a hundred and
twenty years that there had been a chantry sufficiently founded
in law and to have stood stable in perpetuity “which for certain
diminution of the form of making used in the law at these days is
not held sufficient.”

16. 14 Hen. VIII f. 3 (Mich. pl. 2): “Car coment que le roy voile
faire corporacion a J.S. ceo n’est bon, pur ceo que comen reason
dit que n’est chose permanent et ne poit aver successor.”
Considering the context, I do not think that I translate this
unfairly, though the words “faire corporation a J.S.” may not be
exactly rendered or rederable. The king, we may say, cannot make
a corporation which shall have J.S. for its basis. ["Grant to
J.S. to be a corporation" seems the most plausible version. --
Ed. Law Quarterly Review (1900).]

17. Co. Lit. 340b, 341a.

18. Sutton’s Hospital Case (1612), 10 Rep. 29b.

19. Fulwood’s Case (1591), 4 Rep. 65a.

20. 8 Edw. IV, f. 18 (Mich. pl. 29).

21. Lib. Ass. f. 117, ann. 25, pl. 8: “All the cathedral churches
and their possessions were at one time a gross.”

22. For instance, Chapter V. Dean of Lincoln, 9 Edw. III, f. 18
(Trin. pl. 3) and f. 33 (Mich. pl. 33).

23. Lit sec. 645. 6 Edw. III, f. 10, 11 (Hil. pl. 28), it is said
in argument, “The right of the church [of York] abides rather in
the dean and chapter than in the archibishop, car ceo ne mourt
pas.” This case is continued in 6 Edw. III, f. 50 (Mich. pl. 50).

24. See Coke’s exposition, Co. Lit. 442, ff; and Blackstone’s 2
Com. 319.

25. Apparently in 1487 (3 Hen. VII, f. 11, Mich pl. 2), Vavasor
J. said “chescun abbe est corps politike, car il ne poet rien
prender forsque al use del meason.” [But all the other Justices
were against him.]

26. Is the idea of the incapacity of a headless corporation
capable of doing harm at the present day? Grant, Corporations,
110, note (s), says that “if the master of a college devise lands
to the college, they cannot take, because at the moment of his
death they are an incomplete body.” His latest authority is
Dalison, p. 31. In 1863 Dr Whewell or his legal adviser was
careful about this matter. A devise was made “unto the Master,
Fellows, and Scholars of Trinity College aforesaid and their
successors for ever, or, in case that devise would fail of effect
in consequence of there being no Master of the said College at my
death, then to the persons who shall be the Senior Fellows of the
said College at my decease and their heirs until the appointment
of a Master of such College, and from and after such appointment
(being within twenty-one years after my death) to the Master,
Fellows, and Scholars of the said College and their successors
for ever.” Thus international law was endowed while homage was
paid to the law of England. But perhaps I do wrong in atttactmg
attention to a rule that should be, if it is not, obsolete.

27. Ulrich Smtz, Geschichte des kirchlichen Benefizialwesens
(Berlin, 1895). Only the first part has yet appeared, but Dr
Stutz sketched his programme in Die Eigenkirche (Berlin, 1895).
[For a bibliography of Kirchengeschichte see Dahlmann-Waitz,
Quellenkunde der Deutschen Geschichte, ed. 9 (1931-1932,
Leipzig), 181-205; and for a list of Stutz's Works, Ibid.
Register, 1251.]

28. History of Tithes, c. 12.

29. 2 Bl. Com. 23.

30. Stutz, “Lehen und Pfrunde,” Zeitschrift der Savigny-Stiftung,
Germ. Abt. xx, 213.

31. Kirchenrecht, vol. III, pp. 1 ff. In particular, English law
regards pattonage as normal. When the ordinary freely chooses the
clerk, this is regarded as an exercise of pattonage; and so we
come by the idea of a “collative advowson.” On the other hand,
the catholic canonist should, so I understand, look upon
pattonage as abnormal, should say that when the bishop selects a
clerk this is an exercise not of pattonage but of “jurisdiction”,
and should add that the case in which a bishop as bishop is
patron of a benefice within his own diocese, though not
impossible, is extremely rare (Hinschius, op. cit. pp. 35-37). To
a king who was going to exercise the “patronage” annexed to
vacant bishopries, but could not claim spiritual jurisdiction,
this difference was of high importance.

32. See Pike, “Feoffment and Livery of Incorporeal Hereditaments”
5 Law Quarterly Review (1889), pp. 29, 35 ff. 43 Edw. III, f. 1
(Hil. pl. 4); advowson conveyed by feoffment at church door. 7
Edw. III, f.5 (Hil. pl. 8): Herle’s dictum that not long ago men
did not know what an advowson was, but granted churches. 11 Hen.
VI, f. 4 (Mich. pl. 8): per Martin, an advowson will pass by
livery, and in a writ of right of advowson the summons must be
made upon the glebe. 38 Edw. III, f. 4 (scire facias): per
Finchden, perhaps in old time the law was that patron without
parson could charge the glebe. 9 Hen. VI, f. 52 (Mich. pl. 35):
the advowson of a church is assets, for it is an advantage to
advance one’s blood or one’s friend. 5 Hen. VII, f. 37 (Trin. pl.
3): per Vavasour and Danvers, an advowson lies in tenure, and one
may distrain [for the services] in the churchyard.

33. See Gierke, Genossenschaftsrecht, vol. III, passim.

34. J. de Athon (ed. 1679), p. 76, gl. ad v. summorum pontificum.

35. Pollock and Maitland, History of English Law, ed. 2, vol. 1,
503.

36. Co. Lit. 300b.

37. 11 Hen. IV, f. 84 (Trin. pl. 34). But see 8 Hen. V. f. 4
(Hil. pl. 15)

38. Bracton, f. 286b.

39. 5 Edw. III, f. 18, (Pasch. pl. 18).

40. 9 Hen. V, f. 8 (Mich. pl. 1)

41. Sometimes the thing that is let to farm is called, not the
church, but the rectory. This, however, does not mean merely the
rectory house. 21 Hen. VII, f. 21 (Pasch. pl. 11): “The church,
the churchyard, and the tithe make the rectory, and under the
name of rectory they pass by parol.” See Greenslade v. Darby
(1868), L.R. 3 Q.B. 421: The lay impropriator’s right to the
herbage of the churchyard maintained against a perpetual curate:
a learned judgment by Blackburn J. See also Lyndwood,
Provinciale, pp. 154ff., as to the practice ofletting churches.
3o Edw. III, f. 1: Action of account against bailiff of the
plaintiff’s church; unsuccessful objection that defendant should
be called bailiff, not of the church, but of a rectory: car
esglise est a les parochiens, et nemy le soen [the parson's].
This is the only instance that I have noticed in the Year Books
of any phrase which would seem to attribute to the parishioners
any sort of proprietary right in the church.

42. 8 Hen. V, f. 4 (Hil. pl. 15). I omit some words expressing
the often recurring theory that the conventual church cannot
accept a gift made when there is no abbot. Headless bodies cannot
act, but they can retain a right.

43. 21 Edw. IV, f. 61 (Mich. pl. 32): per Pigot, fines were
formerly received which purported to convey Deo et ecclesiae, but
the judges of those days were ignorant of the law. 9 Hen. VII, f.
II (Mich. pl. 6): conveyances to God and the church are still
held valid if made in old time; they would not be valid if made
at the present day.

44. Even without the active concurrence of patron and ordinary,
who perhaps would make default when prayed in aid, the parson
could do a good deal in the way of diminishing his successor’s
revenue by suffering collusive actions. See e.g. 4 Hen. VII, f. 2
(Hil. fol 4), where the justices in Cam. Scac. were divided, four
against three.

45. 8 Hen. VI, f. 24 (Hil. pl. 10).

46. 11 Hen. VI, f. 4 (Mich. pl. 8): per Danby, the ordinary shall
have the occupation and all the profit. 9 Hen. V, f. 14 (Mich.
pl. 19) accord. See Stat. 28 Hen. VII, c. 11, which gives the
profits to the succeeding parson.

47. 12 Hen. VIII, f. 7 (Mich. pl. 1).

48. Apparently Belknap J. had said that such a charge would be
good: Fitz. Abr. Annuitie, pl. 53 (8 Ric. II).

49. Sowerby v. Fryer (1869), L.R. 8 Eq. 417, 423: James V.C.: “I
never could understand why a vicar who has wrongfully cut timber
should not be called to account for the proceeds after he has
turned it into money, in order that they may be invested for the
benefit of the advowson; it being conceded that the patron is
entitled to the specific timber.”

50. Lit. sec. 643.

51. There are various readings, but the argument seems plainly to
require this “not”.

52. Lit. sec. 646.

53. Apparently the talk about a fee simple in nubibus began in
debates over contingent remainders: 11 Hen. IV, f. 74 (Trin. pl.
14).

54. Lit. sec. 648.

55. Co. Lit. 2a.

56. In Wythers v. Iseham (1552), Dyer, f. 70 (pl. 43), the case
of the parson had been noticed as the only exception to the rule
that the freehold could not be in abeyance.

57. Co. Lit. 342b.

58. Co. Lit. 341 a.

59. Ibid. 341 b.

60. Challis, Real Property, ed. 2, p. 91; ed. 3, p. 101.

61. Goodeve, Real Property, ed. 4, pp. 85, 133. See the remarks
of Jessel M.R. in Mulliner v. Midland Railway Co. (1879), II
Ch.D. 611, 622.

62. 32 & 33 Vict. c. 42, s. 13.

63. 3 & 4 Will. IV , c. 27, S. 29.

64. Fulwood’s Case (1590), 4 Rep. 65 a; Arundel’s Case (no date),
Hob. 64.

65. Pollock, Contract, ed. 6, p. 109. The principal modern
authority is Howley v. Knight (1849), 14 Q.B. 240. [Cf. Power v.
Banks [1901] 2 Ch. 487.]

66. Foster & Sons, Lim. v. Com. of Inland Rev [1894] 1 Q.B. 516.
[For many later examples, see cases cited in Buckley, Companies
Acts, ed. 11, (1930), pp. 22-23.]

67. Salter v. Grosvenor (1724), 8 Mod. 303, 304.

68. Wood v. Mayor, &c., of London (1701), Salk, 397, 398. See
also Grant, Corporations, p. 635.

69. The matter was well stated by Broke J. in 14 Hen. VIII, f. 30
(Pasch. pl. 8): a parson cannot grant unto or enfeoff himself,
“car comment il ad deux respects uncore il est mesme le person.”

70. [W.W. Buckland, Text-book of Roman Law, ed. 2, s. CVII.]

71. See Eccl. Com. v. Pinney [1899] 1 Ch. 99, a case prophetic of
the ultimate fate of the glebe.

72. In looking through the Year Books for the corporation sole, I
took note of a large number of cases in which this term is not
used, but might well have been used had it been current. I
thought at one time of printing a list of these cases, but
forbear, as it would fill valuable space and only points to a
negative result. The discussion of the parson’s rights in F.N.B.
109-112 is one of the places to which we naturally turn, but turn
in vain.