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S 59. A corrupt contra& fos procuring a presentation Watt. 45, 46. to a benefice made between strangers, though neither 3. Inft. 154. the patron nor the clerk be privy thereto, is an offence Cro. Eliz:
789. within the meaning of the statute. For if there be a corrupt contract, it matters not between whom it is made. But in such a case though the clerk is Simoniace promotus, yet he does not incur any of the penalties of simony.
S 60. In a writ of error to reverse a judgment Rex . whereby the king had recovered upon a title of fimony; i Sid. 329. which was, that a friend of the clerk had agreed to give 2 Keb. 204: a sum of money to 7. 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 faid the clerk was Simoniace 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.
9 61. The second kind of fimony is where the right of presenting is sold at the time when the church is vacant; which was formerly held to be void, because during the vacancy of the church the right of presentation was but a chose in action, which could not be transferred.
$ 62. 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 diétam ecclefiam presentare.
Stephens v. Wall, Dyer 282 b.
It was resolved by all the judges of England that this grant was void, for the present avoidance was a thing in action and privity, and vested in the person of
3 Burr, R. 1512.
$ 63. The true reason of this resolution was to guard against fimony; for the purchaser can have no other object, but that of presenting himself, or some other person. And in a modern case Lord Mansfield and Mr. Justice Wilmot both said that 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 then become a chofe in action.
Benloe R. 192.
§ 64. A lease of an advowson, granted after the church became vacant, was adjudged void, as to the immediate presentation.
And Lord Hardwicke is reported to have said that the sale of an advowson during a vacancy was not within the statutes of fimony, as a sale of the next presentation was ; but it was void by the common law.
S 65. If a presentation be made by a person usurping the right of patronage, and pending an action for
removing removing his clerk, who is afterwards removed, the benefice is fold, this is an offence within the meaning of the statute, for the church was never fuli 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.
$ 66. A grant of a presentation after institution of Ep. London v.
Wolverian, the incumbent to a second living, which vacates the i Black. R. first, is void because the church is considered as va- 490, cant from the time of institution.
$ 67. Where a person purchases the next presenta- Smith
Sherborne, tion to a benefice, the church being then full, with an Cro. Eliz.
685. intention to present a certain person, a subsequent presentation of that person has been generally considered as simony
$ 68. A distinction has however been made in cases of this kind between the presentation of a stranger, and that of a son of the person purchasing the next presentation. In the latter case it has been held not to be fimony; because a father is bound by nature to provide for his son. This distinction has however Watf. 35. been denied, and it has been said, that if the purchase
Bac. Ab. 8vo, of a living when full, with intent to present a certain
V. 6. iss. person, be an offence within the meaning of the statute, how can it be lawful, as the words of the statute are general, for a father to do this ? A parent is by nature certainly bound to provide for his son, but this obliga. tion can never extend to the doing of a thing prohibited by law. This way of reasoning would open a
wide door for corrupt contracts; for as every man is more bound by the law of nature to provide for him. self, than a father is to provide for his son, every man might purchase a living for himself.
$ 69. Doctor Watson says that to avoid questions of law it is best that a purchaser of a next turn, whe ther he design it for son, kinsman or stranger, should make the contract when the incumbent of the church is not in danger of death ; that he should not declare his intentions to the person to whom he intends a kindness, or whom he intendeth to present; that the intended clerk be not present at the contract, however that he be not named in the deed, by which the power of presentation or nomination is granted.
$ 70. It is now the universal practice to purchase the next presentation to an advowson, the church being full, and there is no modern instance where a prefentation under such a purchase has been controverted by the bishops.
S 71. It has been several times laid down that a purchase of the next presentation to a church, when the incumbent is in a dying state, is fimony. But it has been determined in a modern case that a purchase of an advowson in fee, when the incumbent was near dying, was not fimony,
S 72. The plaintiff Barrett having notice that the incumbent of a living, was on his death bed, and that it was uncertain whether he would live over the night, purchased the advowson of the defendant. The in
cumbent cumbent died the next day, and the purchaser presented his clerk upon that avoidance,
The question, which was referred by the court of chancery to the court of common pleas, was, whether the said presentation was void, as being a fimoniacal contract.
Serjeant Hill argued for the plaintiff that this was no fimony, being the sale of an advowson in fee, and before an actual vacancy. That simony is properly defined, a presentation in respect of reward. That the Itatutes of fimony being penal, and restri&tive of the common law, ought therefore to be construed strialy. That fraud or fimony ought not to be presumed or intended. If this fale was void, all sales that were concluded when the incumbent was in extremis, were so likewise; and one might fuppose many cases where that would be unjust and absurd,
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, and therefore a guardian in socage was not accountable for it. That a purchase made with an intent to present a particular person was fimoniacal. And the laws against fimony when they merely vacated the presentation, were considered as remedial, and construed largely. When they inflicted a forfeiture, were looked upon as penal, and construed Itrialy.