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Lord Ch. Juft. De Grey faid he was not able to doubt upon the queftion. An advowson was a temporal right, not indeed jus habendi, but jus difponendi, the exercise of that right was by prefentation. The right itself was a valuable right, and therefore an advowfon was held to be affets in cafe of lineal warranty. It was real affets in the hands of the heir; Ante, f. 39. and the trustee or mortgagee of an advowfon was bound to prefent the clerk of the ceftuique truft or mortgagor. Thus far it was a valuable right and pro perly the object of fale.

But the exercife of this right was a public truft, and therefore ought to be void of any pecuniary confideration, either in the patron or the presentee: it could not, it ought not to produce any profit. It was not vested Ante, f. 43. in a guardian in focage, nor was he accountable for any presentation made during the infancy of his ward. Simony as fuch was unknown to the common law, though corrupt prefentation was. But what was, or was not fimony now depended on the ftatute 31 Eliz. which did not adopt all the wild notions of the canon law, but had defined it to be, a corrupt agreement to prefent.

No conveyance of an advowson can be affected by that act, unless so far as it affected the immediate prefentation. And therefore a fale of an advowson, the church being actually void, was fimoniacal and void in respect to the then prefent vacancy.

But it has never been thought that to purchase an advowfon merely with the profpect (however probable)

that

that the church would foon become void, was either corrupt or fimoniacal, 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 prefent cafe is the purchase of an advowfon 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 faid that the judges would go beyond every resolution of their predeceffors, to determine this to be fimony. Suppofe this had been the purchase of a manor, with the advowion appendant, and the incumbent lying in extremis; what must be done if the prefent cafe was fimony? Muft the court have declared the appendancy to be severed, or that the whole manor was purchased corruptly, for the fake 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 fimoniacal contract.

§ 73. By the ftatute 12 Ann. p. 2. c. 12. it is enacted, that if any perfon for money or profit shall procure in his own name, or in the name of any other, the next prefentation to a living ecclefiaftical and fhall be presented thereupon, this is declared to be a fimoniacal contract, and the party is fubjected to all the ecclefiaftical penalties of fimony.

$ 74. It

5 74. It has been doubted whether the purchase of an advowfon in fee by a clergyman and a prefentation of himself upon the death of the incumbent be within Cafes and this ftatute. It appears from an opinion of the late Opinions 409. Mr. Fearne that he did not think fuch a purchase was prohibited by that statute; and that a prefentation by a trustee of fuch a purchaser, of the purchaser himself might be made. This opinion is fupported by Lord Chief Juft. De Grey's argument in the case of Barrett v. Glubb, in which his Lordfhip diftinguished between à purchase of the next prefentation to a church and a purchafe of an advowfon in fee. For in the first cafe he admitted that a purchase would be Simoniacal if the incumbent was in extremis, whereas in the fecond cafe he held it good.

Ante § 72.

Of Bonds of

$ 75. It has been a common practice for patrons Refignation. when they prefent a clerk to a living, to take a bond from him in a fum of money conditioned, either to refign the living in favour of a particular person, as a fon, kinfman, or friend of the patron, whenever he becomes capable of taking the living; or elfe to refign generally upon the request of the patron.

Watf. 39.
Johns v.
Lawrence,

Cro. Jac. 248.
Babington v.
Wood,

Cro. Car. 180.

Hilliard v.
Stapleton,

In the firft cafe thefe are called fpecial bonds of refignation and have always been held to be valid. In the fecond cafe they are called general bonds of refignation, and were never approved of by the bishops, though held to be valid by the courts of law and equity. But whenever they were used for the purpose of ob

Ab. Eq. 86. taining any pecuniary advantage from the perfon pre

sented,

fented, the court of chancery always interpofed, and granted an injunction against them. And Doctor Watson obferves that general bonds of refignation did not find any encouragement from the court of chancery, which relieved the incumbent, and would not oblige him to refign, or to pay the penalty of the bond, unless some special cause were fhewn, and made out by the patron, that he was unqualified to hold the living, or guilty of fome immorality or irregularity, which was a fufficient cause of deprivation; or at least that he was non-refident and neglected his duty. But in the following cafe it was determined by the Houfe of Lords that where a clerk, upon being presented to a living, entered into a general bond to the patron, to refign whenever the patron fhould require him, fuch bond was abfolutely void.

$76. The rectory of the parish church of Woodham Walton, in the diocese of London becoming vacant, Mr. Fytche, the patron, prefented his clerk, the Rev. Mr. Eyre, to the bishop for institution. The bishop being informed, that Mr. Eyre had given his patron a bond in a large penalty to refign the faid rectory at any time upon his request; and Mr. Eyre acknowledging that he had given fuch 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: firft, 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 refign at any time upon the request of the patron, whereby the presentation became void in law. Secondly, that the living was a

benefice

Id.

Ep. London
v. Fytche,
2 Bro. Parl.

Ca. 211.

benefice with cure of fouls; and that, for the purpose of investing the patron with an undue influence over the clerk, it was agreed that the clerk fhould, in confideration of the prefentation, become bound to the patron in a bond as aforefaid; 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 cafes upon the

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fubject of general bonds of refignation, none of them "have arifen in the fame form, or between parties 66 acting in the fame capacity, and under circumstances "fimilar to the prefent; and, therefore, they ought

not to be considered as precedents, by which this "cafe was to be determined. That the bifhop, or "ordinary, is authorized by law to judge, in the first "inftance, of the fitnefs or unfitnefs of the perfon " presented to him for institution; and the bishop of "London had, in this inftance, exercised his authority "according to law. That it is in the power of the

86

patron, by means of a general bond, to establish two "modes of felling a vacant living, which is fimony; "either of which are equally certain and infallible:

ift, The parties may make the penalty in the bond "adequate to the price of the living; the prefentee, "when instituted, may refufe to refign, and pay the penalty without fuit, or may make known the exe"cution of the bond, and then tender refignation to

66

"the

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