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ing discretion and judgment was void ; and the trustees intitled to present their own clerk.

On the other side it was contended that in the case of presentation, as an infant just born might present at law, so the law did not look on it as an act which required discretion in the patron; nor indeed was it requisite, for infants being supposed to follow the directions of their guardians, might be informed by them, who was a proper person, or if they were not, yet a presentation being only a bare recommendation of a clerk to a bishop, and not an act which gave any interest in the living; and the bishop being absolute judge of the person'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 necessity 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; so that as to the infant, it was the same whether the bishop collated, or the trustees presented ; wherefore they inferred equity ought to be bound to the law, since the case and reason of the thing was alike, for otherwise the greatest confusion and uncertainty would follow.

Lord Chancellor King said—“ An infant of one or “ two years old may present at law; then why may

they not nominate? Does the putting a mark and “ seal to a nomination require more discretion than to “ a présentation? The guardian is supposed to find a “ fit person; and the bishop to confirm his choice.

" And

“ And if this is permitted at law, why should a court “ of equity act otherwise in equitable estates? Decree “ for the plaintiff."

n. l.

§ 46. Mr. Hargrave has observed that though this 1 Inft. 89 a. decision may remove all doubts about the legal right of an infant of the most tender age to present, still it remains to be feen, whether the want of discretion 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

Lunatic. nor his committee: for where a lunatic is feised of an advowson, the Chancellor, by virtue of the general Woodd. authority delegated to him, presents to the preferment Lect. 409. whatever be the value of it, generally however giving it to one of the family. This right (says Mr. Wsoddefon) was asserted first by Lord Talbot, whose example was followed by his immediate and other fucceffors.

§ 48. An alien is disabled from presenting to a Who are difchurch, and therefore if an alien purchases an advow

abled from

presenting. fon, and the church becomes void, the king shall Wats. 106. present.

S 49. Where a person seised of an advowson is out. Wats. 105. lawed, and the church becomes vacant while the outlawry remains in force, he is disabled from presenting and the avoidance is forfeited to the king.

S 50. By

$ 50. By the statute 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 such benefices is given to the universities of Oxford and Cambridge. And by the statute 1 Wm. & Mary, feff. 1. c. 26. every person who shall refuse or neglect to subscribe the declaration mentioned in an act of that parliament, intituled, “ An act for the better securing the government

* by disarming papists and reputed papists,” shall be disabled to make any presentation to a benefice, as fully as if such a person were a popish recusant convict, and the chancellor and scholars of the universities of Oxford and Cambridge shall have such presentations.

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

Of Simony

S 51. As it is of the utmost importance to the public that ecclefiaftical offices should be conferred on those only whose learning and piety qualifies them for the duties annexed to such 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 exercise of this right by any cor. rupt or improper motives. It has therefore been esta. blished from the earliest times that no pecuniary or other valuable consideration ought in any instance to be given or received for procuring a presentation to a church. This offence is called Simony in the canon law; the person making a corrupt contract of this kind is called Simoniacus. And where a person thus 8


i Inft 17 b.
89 a.
3 Inft. 153

presented to a church is not privy to the fimony, he is said to be Simoniace promotus.

$ 52. By the statute 31 Eliz. c. 6. it is enacted for avoiding of fimony, that if any patron for any sum of money, reward, gift, profit, or benefit, dire&ly or indirect. ly, or for or by reason of any promise, agreement, grant, bond, covenant, or other assurance, shall present or collate any person to an ecclesiastical benefit or dignity; such presentation shall be void ; and the presentee be rendered incapable of ever enjoying the same benefice, and the crown shall present to it, for that time only.

S 53. It was formerly held that if a person who had Watf. 96. acquired a benefice by simony enjoyed it during his life, the king might present 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 otherwise alter the case. But now by the statute 1 Wm. & Mary, ch. 16. it is enacted that if a person simoniacally presented, shall die without being convicted of such fimony in his lifetime, such fimoniacal contract shall not prejudice any innocent patron or clerk, on pretence of lapse to the crown, or otherwise.

S 54. The first kind of simony under the statute is, where any sum of money, gift, reward, profit, or benefit, is given, or promised, directly or indirectly, for procuring a presentation to a benefice. VOL. III.


$ 55. If

Wats. 43

S 55. If a clerk seeks to obtain for money a prefen. tation to a void church, though afterwards the patron presents him gratis, yet this fimoniacal attempt has disabled him from taking the benefice, the clerk being deemed an unfit person to hold the benefice, for having at any time been capable of intending to obtain it corruptly.

Watí. 37.

S 56. If a patron promises a clerk that in consideration of his marrying his daughter or kinswoman he will present him to a living when void, this is a simoniacal contract.


Birte v.
Cro. Car. 191.

S 57. But where A. covenanted that B. his fon should

marry C. the daughter of D. in consideration of which D. covenanted to advance £300 for his daughter's portion, and A. covenanted to settle certain lands on his son 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 consideration of the marriage, but a distinct and independent covenant, without any apparent consideration.

Baker v.
Hoy 142.

$ 58. A reservation 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 Watson doubts of it. But it is perfectly clear that a reservation of any kind of profit, in favour of the pairon is within the statute.

S 59. A corrup?

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