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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 juft born might present at law, fo the law did not look on it as an act which required discretion 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 perfon, or if they were not, yet a prefentation being only a bare recommendation of a clerk to a bishop, and not an act which gave any intereft in the living; and the bishop 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 lapfe might incur, yet the presentation of the minor on the next vacancy was reserved, and nothing divested 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 presented; wherefore they inferred equity ought to be bound to the law, fince the cafe and reafon 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

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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 a "fit perfon; and the bishop to confirm his choice.


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

n. I.

§ 46. Mr. Hargrave has obferved that though this 1 Inft. 89 a. decifion 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 exercise, 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, prefents 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.

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

Who are dif

abled from prefenting. Watf. 106.

S 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 Inst. 153.

$ 50. By the ftatute 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, seff. 1. c. 26. every person who shall refufe or neglect to subscribe 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 difabled to make any prefentation to a benefice, as fully as if fuch a perfon were a popifh recufant convict, and the chancellor and scholars of the univerfities of Oxford and Cambridge fhall have fuch presentations.

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

S 51. 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 should be influenced in the exercife 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 presentation 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 perfon thus presented


prefented 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 prefent or collate any person to an ecclefiaftical benefit or dignity; fuch presentation fhall be void; and the presentee be rendered incapable of ever enjoying the fame benefice, and the crown fhall present to it, for that time only.

§ 53. It was formerly held that if a person who had Wats. 96. acquired a benefice by fimony enjoyed it during his life, the king might prefent after his death, because the church notwithstanding the institution and induction of the fimonist, remained void to the king's presentation, 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 presented, 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 fum of money, gift, reward, profit, or benefit, is given, or promifed, directly or indirectly, for procuring a presentation to a benefice.



$ 55. If

Watf. 43.

Watf. 37.

Cro. Car. 191.

Baker v.
Noy 142.

§ 55. If a clerk feeks to obtain for money a prefen tation to a void church, though afterwards the patron presents 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 time been capable of intending to obtain it cor

at any


§ 56. If a patron promises 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 statute 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

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