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Lord Ch. Just. 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, and therefore an advowson was held to be assets in case of lineal war
ranty. It was real assets in the hands of the heir ; Ante, f. 39. and the trustee or mortgagee of an advowfon was
bound to present the clerk of the cestuique trust or mortgagor. Thus far it was a valuable right and pro. perly the object of sale.
But the exercise of this right was a public trust, and therefore ought to be void of any pecuniary consideraton, either in the patron or the presentee: it could not,
it ought not to produce any profit. It was not vested Arte, f. 43. in a guardian in socage, nor was he accountable for
any presentation made during the infancy of his ward.
Simony as such was unknown to the common law, though corrupt presentation was. But what was, or was not fimony now 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 can be affected by that act, unless so far as it affected the immediate presentation. And therefore a sale of an advowson, the church being actually void, was simoniacal and void in respect to the then present vacancy.
But it has 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 common law if a clerk, or a stranger with the privity of the clerk contracts for the next avoidance, the incumbent being in extremis, it was held to be fimoniacal.
The present case is the purchase of an advowson in fee. No privity of the clerk appears. The church was not actually yoid, but in great probability of a vacancy, which however was by no means equivalent to a certainty. His Lordship said that the judges would go beyond every resolution of their predecessors, to determine this to be fimony. Suppose this had been the purchase of a manor, with the advowion appendant, and the incumbent lying in extremis ; what must be done if 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 to chancery that the presentation was not void, it not appearing to them to have been made upon a simoniacal contract.
§ 73. By the statute 12 Ann p. 2. C. 12. it is enacted, that if any person for money or profit shall procure in his own name, or in the name of the next presentation to a living ecclesiastical and shall be presented thereupon, this is declared to be a fimo- . niacal contract, and the party is subjected to all the ecclefiaftical penalties of fimony.
S 74. It
S 74. 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 Cases and this statute. It appears from an opinion of the late Opinions 409. Mr. Fearne that he did not think such a purchase was
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 Ante $72.
Chief Just. De Grey's argument in the case of Barrettv. Glubb, in which his Lordship distinguished between à purchase of the next presentation to a church and a purchase of an advowson in fee. For in the first cafe he admitted that a purchase would be Simoniacal if the incumbent was in extremis, whereas in the second cafe he held it good.
Of Bonds of
S 75. It has been a common practice for patrons Resignation. when they present a clerk to a living, to take a bond
from him in a sum of money conditioned, either to resign the living in favour of a particular person, as a fon, kinsman, or friend of the patron, whenever he be. comes capable of taking the living; or else to resign generally upon the request of the patron.
In the first case these are called special bonds of re. Johns v. signation and have always been held to be valid. In Lawrence, Cro
. Jac.248. the second case they are called general bonds of religBabington v. Wood,
nation, and were never approved of by the bishops, Cro.Car. 180. though held to be valid by the courts of law and equity. Hilliard v.
But whenever they were used for the purpose of ob. Stapleton, | Ab. 69.86. taining any pecuniary advantage from the person pre
sented, the court of chancery always interposed, and
$ 76. The rectory of the parish church of Woodham Ep. London Walton, in the diocese of London becoming vacant, Mr. Fytche, Fytche, the patron, presented his clerk, the Rev. Mr. Ca. 211. Eyré, to the bishop for institution. The bishop being informåed, that Mr. Eyre had given his patron a bond in a large penalty to resign the said rectory at any time upon his request; and Mr. Eyre acknowledging that he had given such a bond, the bishop refused to institute him to the living. Mr. Fytche brought a quare impedit against the bishop, to which he pleaded two pleas : first, that the living was a benefice with cure of fouls, and that the clerk had given a bond to the patron in the penalty of £3000, to resign at any time upon the request of the patron, whereby the presentation beçamé void in law. Secondly, that the living was a
benefice with cure of fouis; and that, for the purpose of investing the patron with an undue influence over the clerk, it was agreed that the clerk should, in confideration of the presentation, become bound to the patron in a bond as aforesaid ; which was accordingly done. Mr. Fytche demurred to both those pleas; and, the bishop having joined in demurrer, judgment was given for the patron: and the judgment was affirmed by the court of king's bench.
The bishop then brought a writ of error in the House of Lords; and it was contended on his part, that, " although there are several adjudged cases upon the « subject of general bonds of resignation, none of them 6 have arisen in the same form, or between parties
acting in the same capacity, and under circumstances fimilar to the present; and, therefore, they ought
not to be considered as precedents, by which this “ case was to be determined. That the bishop, or “ ordinary, is authorized by law to judge, in the first « instance, of the fitness or unfitness of the person « presented to him for institution; and the bishop of “ London had, in this instance, exercised his authority
according to law. That it is in the power of the
patron, by means of a general bond, to establish two “ modes of felling a vacant living, which is simony; « either of which are equally certain and infallible : “ ist, The parties may make the penalty in the bond
adequate to the price of the living; the presentee, “ when instituted, may refuse to resign, and pay the
penalty without suit, or may make known the exe“ cution of the bond, and then tender resignation to