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12 Rep. 73. Cro. Eliz.
§ 59. A corrupt contract for procuring a prefentation Watf. 45.45. to a benefice made between ftrangers, though neither 3 Inft. 154. the patron nor the clerk be privy thereto, is an offence within the meaning of the ftatute. For if there be a corrupt contract, it matters not between whom it is made. But in fuch a cafe though the clerk is Simoniace promotus, yet he does not incur any of the penalties of fimony.
$ 60. In a writ of error to reverse a judgment whereby the king had recovered upon a title of fimony; which was, that a friend of the clerk had agreed to give a fum of money to 7. S. who was not the patron, to procure the clerk to be prefented to a church, who was presented accordingly. It was affigned 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 church of St. Clements
Doctor Duxon had enjoyed the
§ 61. The fecond kind of fimony is where the right of presenting is fold 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 prefentation was but a chofe in action, which could not be transferred.
1 Sid. 329.
2 Keb. 204:
3 Burr. R. 1512.
§ 62. A patron of an advowson, the church being void, granted to B. proximam prefentationem to the faid church jam vacantem ita quod liceat B. hac vice ad dictam ecclefiam prefentare.
It was refolved by all the judges of England that this grant was void, for the prefent avoidance was a thing in action and privity, and vested in the perfon of the grantor.
§ 63. The true reafon of this refolution was to guard against fimony; for the purchaser can have no other object, but that of presenting himself, or fome other person. And in a modern cafe Lord Mansfield and Mr. Juftice Wilmot both faid that the true reason why a grant of a fallen presentation of an advowfon, after avoidance is not good, quoad the fallen vacancy, is the public utility, and the better to guard against fimony: not for the fictitious reafon of its being then become a chofe in action.
$ 64. A leafe of an advowfon, granted after the church became vacant, was adjudged void, as to the immediate presentation.
And Lord Hardwicke is reported to have said that the fale of an advowfon during a vacancy was not within the ftatutes of fimony, as a fale of the next presentation was; but it was void by the common law.
§ 65. If a prefentation be made by a perfon ufurping the right of patronage, and pending an action for
removing his clerk, who is afterwards removed, the benefice is fold, this is an offence within the meaning of the ftatute, 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 ufurper to prefent, while the church was void, and then felling it.
§ 66. A grant of a prefentation after inftitution of the incumbent to a fecond living, which vacates the firft, is void becaufe the church is confidered as vacant from the time of inftitution.
§ 67. Where a person purchases the next prefentation to a benefice, the church being then full, with an intention to present a certain perfon, a fubfequent prefentation of that perfon has been generally confidered as fimony.
Bac. Ab. 8vo.
§ 68. A diftinction has however been made in cases of this kind between the prefentation of a stranger, and that of a fon of the perfon purchafing the next prefentation. In the latter cafe it has been held not to be fimony; because a father is bound by nature to provide for his fon. This diftinction has however Watf. 35been denied, and it has been faid, that if the purchase of a living when full, with intent to prefent a certain perfon, be an offence within the meaning of the ftatute, how can it be lawful, as the words of the ftatute are general, for a father to do this? A parent is by nature certainly bound to provide for his fon, but this obligation can never extend to the doing of a thing prohibited by law. This way of reafoning would open a
v. 6. 188.
2 Black. R.
wide door for corrupt contracts; for as every man is more bound by the law of nature to provide for himfelf, than a father is to provide for his fon, every man might purchase a living for himself.
§ 69. Doctor Watson fays that to avoid questions of law it is best that a purchaser of a next turn, whe ther he defign it for fon, kinfman or ftranger, fhould 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 prefent; that the intended clerk be not prefent 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 univerfal 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.
§ 71. It has been feveral times laid down that a purchase of the next prefentation to a church, when the incumbent is in a dying ftate, is fimony. But it has been determined in a modern case that a purchase of an advowfon in fee, when the incumbent was near dying, was not fimony.
§ 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 advowfon of the defendant. The in
cumbent died the next day, and the purchaser prefented 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 fale of an advowson in fee, and before an actual vacancy. That fimony is properly defined, a presentation in respect of reward, That the ftatutes of fimony being penal, and restrictive of the common law, ought therefore to be conftrued strictly. That fraud or fimony ought not to be prefumed or intended. If this fale was void, all fales that were concluded when the incumbent was in extremis, were fo likewife; and one might fuppofe many cafes where that would be unjust and abfurd,
Serjeant Glyn for the defendants infifted that the common law, previous to any statute, took notice of corrupt presentations, as contracts ex turpi caufa. That no profit was allowed to be made of a right of patronage, and therefore a guardian in focage was not accountable for it. That a purchase made with an intent to present a particular perfon was fimoniacal. And the laws against fimony when they merely vacated the presentation, were confidered as remedial, and construed largely. When they inflicted a forfeiture, were looked upon as penal, and conftrued Atrialy.