Page images

ing discretion and judgment was void; and the trustees intitled to present their own clerk.

On the other fide it was contended that in the case of presentation, as an infant just born might present at law, fo the law did not look on it as an act which required difcretion in the patron; nor indeed was it requifite, for infants being fuppofed to follow the directions of their guardians, might be informed by them, who was a proper person, or if they were not, yet a presentation being only a bare recommendation of a clerk to a bishop, and not an act which gave any interest in the living; and the bifhop being abfolute judge of the perfon's abilities, there did not appear any great reason why an infant might not make it as well as a person of full age; and it was not of neceffity that they must present, for though a lapse might incur, yet the presentation of the minor on the next vacancy was reserved, and nothing divefted out of him by the bishop's collation; fo that as to the infant, it was the fame whether the bishop collated, or the trustees prefented; wherefore they inferred equity ought to be bound to the law, fince the cafe and reason of the thing was alike, for otherwise the greatest confufion and uncertainty would follow.

Lord Chancellor King faid-" An infant of one or "two years old may prefent at law; then why may'

they not nominate? Does the putting a mark and "feal to a nomination require more difcretion than to "a prefentation? The guardian is fuppofed to find at "fit perfon; and the bishop to confirm his choice.


"And if this is permitted at law, why fhould a court "of equity act otherwise in equitable eftates? Decree "for the plaintiff."

n. I.

S 46. Mr. Hargrave has obferved that though this 1 Inft. 89 a. decision may remove all doubts about the legal right of an infant of the most tender age to prefent, ftill it remains to be feen, whether the want of difcretion would induce a court of equity to control the exercife, where a presentation was obtained from an infant, without the concurrence of the guardian.



§ 47. A lunatic cannot however present to a church, But not a nor his committee: for where a lunatic is feised of an advowson, the Chancellor, by virtue of the general authority delegated to him, presents to the preferment Lect. 409. whatever be the value of it, generally however giving it to one of the family. This right (fays Mr. Wooddefon) was afferted first by Lord Talbot, whofe example was followed by his immediate and other fucceffors.

Who are dif

abled from prefenting.

§ 48. An alien is difabled from prefenting to a church, and therefore if an alien purchases an advowfon, and the church becomes void, the king fhall Watf. 106. prefent.

§ 49. Where a perfon feifed of an advowfon is out- Watf. 105. lawed, and the church becomes vacant while the out

lawry remains in force, he is difabled from prefenting and the avoidance is forfeited to the king.

§ 50. By

Of Simony.

1 Inft 17 b.
89 a.
3 Inft. 153.

§ 50. By the statute 3 James 1. c. 5. it is enacted, that all popish recufants convict shall be disabled to present to any benefice, or to grant any avoidance to any benefice, and the presentation to fuch benefices is given to the univerfities of Oxford and Cambridge. And by the statute 1 Wm. & Mary, feff. 1. c. 26. every person who fhall refufe or neglect to fubfcribe the declaration mentioned in an act of that parliament, intituled, "An act for the better fecuring the government "by difarming papists and reputed papifts," fhall be disabled to make any prefentation to a benefice, as fully as if fuch a perfon were a popish recufant convict, and the chancellor and scholars of the universities of Oxford and Cambridge fhall have such presentations.


The trustees of popish recufants convict are also disabled by this act from prefenting to a benefice.

S51. As it is of the utmost importance to the public that ecclefiaftical offices fhould be conferred on thofe only whose learning and piety qualifies them for the duties annexed to fuch offices, the law has always been extremely careful in watching over those who have a right of presentation to church livings, least they fhould be influenced in the exercise of this right by any corrupt or improper motives. It has therefore been esta. blished from the earliest times that no pecuniary or other valuable confideration ought in any inftance to be given or received for procuring a prefentation to a church. This offence is called Simony in the canon law; the perfon making a corrupt contract of this kind is called Simoniacus. And where a person thus presented


presented to a church is not privy to the fimony, he is faid to be Simoniace promotus.

S52. By the ftatute 31 Eliz. c. 6. it is enacted for avoiding of fimony, that if any patron for any fum of money, reward, gift, profit, or benefit, directly or indirectly, or for or by reafon of any promise, agreement, grant, bond, covenant, or other affurance, fhall present or collate any person to an ecclefiaftical benefit or dignity; fuch presentation fhall be void; and the prefentee be rendered incapable of ever enjoying the fame benefice, and the crown fhall prefent to it, for that time only.

§ 53. It was formerly held that if a perfon who had Watf. 96. acquired a benefice by fimony enjoyed it during his life, the king might present after his death, because the church notwithstanding the institution and induction of the fimonist, remained void to the king's prefentation, before his death, and his death could not make him incumbent, that was none before, or otherwife alter the cafe. But now by the ftatute 1 Wm. & Mary, ch. 16. it is enacted that if a perfon fimoniacally prefented, fhall die without being convicted of fuch fimony in his lifetime, fuch fimoniacal contract fhall not prejudice any innocent patron or clerk, on pretence of lapse to the crown, or otherwise.

§ 54. The first kind of fimony under the ftatute is, where any sum of money, gift, reward, profit, or benefit, is given, or promised, directly or indirectly, for procuring a presentation to a benefice.



$ 55. If

Watf. 43.

Watf. 37

Byrte v.
Ero. Car. 191.

Baker v.
Noy 142.

$ 55. If a clerk feeks to obtain for money a prefentation to a void church, though afterwards the patron prefents him gratis, yet this fimoniacal attempt has difabled him from taking the benefice, the clerk being deemed an unfit perfon to hold the benefice, for having at any time been capable of intending to obtain it cor


§ 56. If a patron promifes a clerk that in confideration of his marrying his daughter or kinfwoman he will present him to a living when void, this is a fimoniacal contract.

$ 57. But where A. covenanted that B. his fon fhould marry C. the daughter of D. in confideration of which D. covenanted to advance £300 for his daughter's portion, and A. covenanted to fettle certain lands on his fon 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 confideration of the marriage, but a diftinct and independent covenant, without any apparent confideration.

§ 58. A refervation of a profit to a stranger, as an annuity to the widow or fon of the last incumbent does not appear to have been an offence within the ftatute of 31 Eliz. though Doctor Watfon doubts of it. But it is perfectly clear that a reservation of any kind of profit, in favour of the patron is within the statute.

§ 59. A corrupt

« PreviousContinue »