Procuring a money. institution and induction of the simonist, remained void to the king's presentation, before his death; and his death could not make him incumbent that was none before, or otherwise alter the case. But now, by the statute 1 Will. & Mary, c. 16., it is enacted, that if a person simoniacally presented shall die without being convicted of such simony in his lifetime, such simoniacal contract shall not prejudice any innocent patron or clerk on pretence of lapse to the crown, or otherwise. 55. The first kind of simony under the statute 31 Eliz. is presentation for where any sum of money, gift, reward, profit, or benefit, is given or promised, directly or indirectly, for procuring a presentation to a benefice. And Lord Coke observes that simony is the more odious, because it is ever accompanied with perjury; for the presentee is sworn not to commit simony. 3 Inst. 156. Wats. 43. Idem 37. Byrte v. Man ning, Cro. Car.' 191. Baker v. Mounford, Noy, 142. Hutchinson's case, 12 Rep. 101. Id. 74. 56. If a clerk seeks to obtain for money a presentation to a void church, though afterwards the patron present him gratis, yet this simoniacal attempt disables him from taking the benefice; being deemed an unfit person to hold it, for having at any time been capable of intending to obtain it corruptly. 57. If a patron promises a clerk that in consideration of his marrying his daughter or kinswoman he will present him to a living when void, this is a simoniacal contract. 58. But where A. covenanted that B. his son should marry C. the daughter of D., in consideration of which D. covenanted to advance 3001. for his daughter's portion; and A. covenanted to settle certain lands on his son and his intended wife. There were likewise covenants on the part of A. for the value of the lands, and for quiet enjoyment; and a covenant on the part of D. to procure a certain benefice for B. on the next avoidance. It was held that this was not a corrupt contract, it not being a covenant in consideration of the marriage, but a distinct and independant covenant, without any apparent consideration. 59. A reservation of a profit to a stranger, as an annuity to the widow or son of the last incumbent, does not appear to be within the statute 31 Eliz., though Doctor Watson doubts it: but it is perfectly clear that a reservation of any kind of profit, in favour of the patron, is within the statute. 60. It was resolved by all the judges, in 8 Jac. 1., that if any should receive or take money, fee, reward, or other profit, for any Cro. Eliz. 789. presentation to a benefice with cure, although in truth he which 3 Inst. 154. is presented be not knowing of it, yet the presentation, admission, and induction, are void, by the express words of the statute 31 Eliz., and the king shall have the presentation hac vice. For the statute intends to inflict punishment upon the patron, as upon the author of this corruption, by the loss of his presentation; and upon the incumbent who came in by such a corrupt patron, by the loss of his incumbency, although that he never knew of it. But if the presentee be not cognizant of the corruption, then he shall not be within the clause of disability in the same statute. 61. In a writ of error to reverse a judgment, whereby the king had recovered upon a title of simony, which was, that a friend of the clerk had agreed to give a sum of money to J. S., who was not the patron, to procure the clerk to be presented to a church, who was presented accordingly. It was assigned for error, that it did not appear that either patron or clerk were acquainted with the agreement. But the Court said, the clerk was simoniacè promotus. And it was said that Doctor Duxon had enjoyed the church of St. Clements above twenty years by such a title of the king's; the presentee of the patron being ousted, by reason of a friend's having given money to a page of the earl of Exeter, to endeavour to procure the presentation; and neither the earl nor the clerk knew any thing of it. Rex v. Trussel, 1 Sid. 329. 2 Keb. 204. 2 Bar. & Cress. 635. See also Cro. Eliz. 685. Hob. 165. 62. [In the case of Fox v. Bishop of Chester, it was decided that a contract for the sale of the next presentation, the parties knowing the incumbent to be at the point of death, was 19 Vin. Abr. simoniacal; and the presentation made in pursuance of it void; 458. although the clerk presented was not privy to the transaction, and the contract was not made with a view to the presentation of any particular individual. But this decision was reversed 6 Bing. 1. upon a writ of error in the House of Lords, June 3, 1829.] 63. The second kind of simony is where the right of present- Sale of the ing is sold at the time when the church is vacant. This was during a vapresentation also held to be void at common law, because during the vacancy cancy. of the church, the right of presenting was but a chose in action, which could not be transferred. 64. A patron of an advowson, the church being void, granted to B. proximam presentationem to the said church, jam vacantem, ita quod liceat B. hac vice ad dictam ecclesiam presentare. And Stephens v. Wall, Dyer, 282 b. Jenk. Cent.6.Case 13. Benloe, 192. Amb. 268. Ep. Lincoln v. Black. R. 490. 2 Wils. R. 174. 3 Burr. R. 1512. Leak v. Ep. Walker v. Sale of the next presentation good. it was resolved, by all the judges of England, that the grant was void; for the present avoidance was a thing in action and privity, and vested in the person of the grantor. 65. A lease of an advowson, granted after the church became vacant, was adjudged void, as to the immediate presentation. And it is said by Lord Hardwicke, that the sale of an advowson during a vacancy was not within the statute of simony, as a sale of the next presentation was; but was void by the common law. 66. In a modern case, the Court of King's Bench resolved that a grant of a next presentation, or of an advowson, made after the church was actually fallen vacant, was a void grant, quoad the fallen vacancy. Lord Mansfield and Mr. Justice Wilmot said, the true reason why a grant of a fallen presentation of an advowson, after avoidance, is not good, quoad the fallen vacancy, is the public utility, and the better to guard against simony; not for the fictitious reason of its being a chose in action. And it was held in the same case, that a grant of a presentation, after institution of the incumbent to a second living which vacated the first was void, because the church was considered as vacant from the time of institution. 67. If the patron sells the fee simple of the advowson after the avoidance, neither he nor his vendee can have a quare impedit, because the avoidance makes it a chose in action, so that it does not pass to the grantee; and the grantor has destroyed his action by his conveyance, so none can have it. 68. If a presentation be made by a person usurping the right of patronage, and pending an action for removing his clerk, who is afterwards removed, the benefice is sold; this is an offence within the meaning of the statute, for the church was never full of that clerk. And if this were allowed, the statute might be eluded; for it would be only getting an usurper to present while the church was void, and then selling it. 69. Where a person purchased the next presentation to a benefice, the church being then full, with an intention to present a particular person, a subsequent presentation of that person was formerly deemed simony. But it is now an universal practice to purchase the next presentation to a living, the church being full; and there is no modern instance where a presentation under such circumstances has been questioned. 70. It is well settled that a purchase of the next presentation to a church, when the incumbent is in a dying state, is simony: but it was determined, in the following case, that a purchase of an advowson in fee simple under these circumstances, was not simony. 71 The plaintiff Barrett, having notice that the incumbent Barratt v. Glubb, 2 Black. of a living was on his death-bed, and that it was uncertain R. 1052. whether he would live over the night, purchased the advowson in fee of the defendant. The incumbent died the next day, and the purchaser presented his clerk upon that avoidance. A question was referred by the Court of Chancery to the Court of Common Pleas, whether the said presentation was void, as being on a simoniacal contract. Serjeant Hill argued for the plaintiff that this was no simony, being the sale of an advowson in fee, before an actual vacancy; that simony was properly defined a presentation in respect of reward; that the statutes of simony being penal, and restrictive of the common law, ought therefore to be construed strictly; that fraud or simony ought not to be presumed or intended. Serjeant Glyn for the defendants insisted that the common law, previous to any statute, took notice of corrupt presentations, as contracts ex turpi causâ; that no profit was allowed to be made of a right of patronage; that a purchase made with an intent to present a particular person was simoniacal; and the laws against simony, when they merely vacated the presentation, were considered as remedial, and construed largely; when they inflicted a forfeiture, as penal, and construed strictly. Lord Chief Justice De Grey said, he was not able to doubt upon the question. An advowson was a temporal right; not indeed jus habendi, but jus disponendi. The exercise of that right was by presentation. The right itself was a valuable right; therefore, an advowson was held to be assets in case of lineal warranty. It was real assets in the hands of the heir; Ante, c. 1. and the trustee or mortgagee of an advowson was bound to present the clerk of the cestui que trust, or mortgagor. Thus far it was a valuable right, and properly the object of sale: but the exercise of this right was a public trust, therefore ought to be void of any pecuniary consideration, either in the patron or the presentee. It could not, it ought not, to produce any profit. Greenwood v. 5 Taun. 727. Exception. It was not vested in a guardian in socage, nor was he accountable for any presentation made during the infancy of his ward. Simony was unknown to the common law, though corrupt presentation was. But what was or was not simony depended on the statute of 31 Eliz., which did not adopt all the wild notions of the canon law, but had defined it to be a corrupt agreement to present. No conveyance of an advowson could be affected by that act, unless so far as it affected the immediate presentation; therefore a sale of an advowson, the church being actually void, was simoniacal and void in respect to the then present vacancy. But it had never been thought, that to purchase an advowson merely with the prospect, however probable, that the church would soon become void, was either corrupt or simoniacal; though by the common law, if a clerk or a stranger, with the privity of the clerk, contracted for the next avoidance, the incumbent being in extremis, it was held to be simoniacal. The present case was the purchase of an advowson in fee. No privity of the clerk appeared. The church was not actually void, but in great probability of a vacancy; which, however, was by no means equivalent to a certainty. He said the judges would go beyond every resolution of their predecessors, to determine this to be simony. Suppose this had been the purchase of a manor, with the advowson appendant, and the incumbent lying in extremis, what must be done in the present case was simony. Must the Court have declared the appendancy to be severed, or that the whole manor was puchased corruptly, for the sake of the advowson? The other judges concurred; and the Court certified that the presentation was not void, it not appearing to them to have been made upon a simoniacal contract. 72. It was formerly doubted whether it was simony for a clerk to purchase for himself the next presentation to a benefice, while it was full, and to be presented thereto, when it became void. To put an end to this doubt, the statute 12 Ann. c. 12. enacts, "That if any person shall, for money, reward, gift, profit, or advantage, or for or by reason of any promise, agreement, grant, bond, or other assurance, of or for any money, reward, gift, profit, or benefit, directly or indirectly, in his own name, or in the name of any other person or persons, take, procure, or accept the next |
