ing 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. next Presen 72. Where a person purchased the next presenta- Sale of the tion to a benefice, the church being then full, with tation good. 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 presentation under such circumstances has been questioned. 685. 458. 73. It has been several times laid down, that a Cro. Eliz. purchase of the next presentation to a church, when Hob. 165. the incumbent is in a dying state, is simony; but it 19 Vin. Ab. was determined, in the following case, that a purchase of an advowson in fee simple, under these circumstances, was not simony. Glubb, 74. The plaintiff, Barrett, having notice that the Barrett v. incumbent of a living was on his death-bed, and that 2 Black, R. it was uncertain whether he would live over the night, 1052. 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; ante. c. 1. yal. 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 causa; 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; 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. 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 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 purchased 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. 75. It was formerly doubted whether it was simony Exception. 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 pro Cases and Opinions, 409. mise, 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 avoidance or presentation to any benefice, &c., and shall be presented or collated thereupon, that every such presentation or collation shall be utterly void and of no effect in law; and such agreement shall be deemed to be a simoniacal contract, and it shall be lawful for the queen's majesty, her heirs and successors, to present or collate unto such benefice, &c. for that time or turn only. And the person so corruptly taking, procuring, or accepting such benefice, &c. shall, from thenceforth, be adjudged a disabled person to have and enjoy the same, and shall be subject to any punishment, pain, or penalty prescribed or inflicted by the laws ecclesiastical, in like manner as if such agreement had been made after such benefice, &c. had become vacant." 76. It has been doubted whether the purchase of an advowson in fee by a clergyman, and a presentation of himself upon the death of the incumbent, be within this statute. It appears, from an opinion of the late Mr. Fearne, that he did not consider such a purchase as prohibited by that statute; and that a presentation by a trustee of such a purchaser, of the purchaser himself, might be made. This opinion is supported by Lord Chief Justice De Grey's argument in the case of Barrett v. Glubb, in which he distinguished between a purchase of the next presentation to a church, and a purchase of an advowson in fee; for, in the first case, he admitted that a purchase Vide Paley's would be simoniacal, if the incumbent was in extrePhilosophy, B. III. c. 20. mis; whereas in the second case he held it good. ante, § 74. Lawrence, 77. It has long been a common practice for patrons, Bonds of Rewhen they present a clerk to a living, to take a bond signation. from him in a sum of money, conditioned either to resign the living in favour of a particular person, as a son, relation, or friend of the patron, whenever such son, &c. becomes capable of taking the living, or else to resign generally, upon the request of the patron. In the first case they are called special bonds of resig- Johns v. nation, and have always been held valid. In the Cro. Ja. 248. second case they are called general bonds of resignation; and were never approved of by the bishops, Babington though held to be valid by the courts of law and equity. But whenever they were used for the purpose of obtaining any pecuniary advantage from the person presented, the Court of Chancery always interposed and granted an injunction against them. 78. Dr. Watson observes, that general bonds of resignation did not find any encouragement from the Court of Chancery, which relieved the incumbent ; and would not oblige him to resign, or to pay the penalty of the bond, unless some special cause were shown and made out by the patron, that he was unqualified to hold the living, or guilty of some immorality or irregularity, which was a sufficient cause of deprivation; or at least that he was non-resident, and neglected his duty. But in the following case it was determined by the House of Lords, that where a clerk, upon being presented to a living, entered into a general bond to the patron, to resign whenever the patron should require him, such bond was absolutely void. v. Wood, Cro. Car.180. Hilliard v. Incumb. 39. 79. The rectory of the parish church of Woodham Ep. London v. Fytche, Walton, in the diocese of London, becoming vacant, 2 Bro. Parl. Mr. Fytche, the patron, presented his clerk, the Rev. Mr. Eyre, to the bishop, for institution. The bishop Ca, 211. |