A) In what Simony consists.

after it shall become void for the presentation thereto, this is an offence within the meaning of the statute.

1 Brownl. 7.

The buying of the next presentation to a church when it is full, with intent to present a certain person when it shall become void, and the presenting of that person, is an offence within the meaning of the statute.

Lane, 102; Kitchen v. Calvert, Noy, 25; Winchcomb v. Pulleston, Godb. 390, The purchase of the next presentation to a church, when the incumbent is sick and near dying, with intent to present a certain person after his death, and the presenting of that person, is an offence within the meaning of the statute.

Winch, 63, Sheldon v. Brett.

It has been holden, that if a father, the incumbent being sick, purchase a living without the privity of his son, it is not a corrupt contract, although it be with design to present the son, and the son be afterwards presented, a father being bound by nature to provide for his son.

Cro. Eliz. 685; Smith v. Shelborn, Pasch. 4 Eliz.

But the doctrine in this case has been since contradicted, and particularly in the case of Winchcomb v. Pulleston, Noy 25, Pasch. 15, Jac. 1.

And the reason given in the former case, namely, that a father is bound by nature to provide for his son, does not hold: for if the purchase of a living, when full, with intent to present a certain 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 obligation 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 himself, than a father is to provide for his son, every man might purchase a living for himself.

In a case from the Court of Chancery, for the opinion of the Court of Common Pleas, it was stated, that Barrett, having notice that the incumbent of a rectory, with cure of souls, was upon his deathbed, and that it was uncertain whether he would live out the ensuing night, purchased the advowson of the rectory; that the incumbent died the day after the purchase; and that Barrett presented Reynell. The question was, Whether the presentation of Reynell be void, by reason of its having been upon a simoniacal contract? The unanimous opinion of the court was, that the presentation is not void: and by De Grey, C. J., an advowson, which is a right of nominating to a benefice, being a temporal inheritance, may be conveyed like any other temporal inheritance. It is certain that an advowson appendant may be lawfully purchased with the manor to which it is appendant, during a vacancy of the benefice; and there seems to be no reason why an advowson in gross should not. The 31 Eliz. c. The 31 Eliz. c. 6, only relates to presentations, and consequently the sale of an advowson, even during a vacancy of the benefice, is not thereby prohibited, except the sale be connected with a corrupt contract for presenting. But if an advowson be granted during a vacancy of the benefice, the presentation upon that vacancy does not pass by the grant; it being a fruit fallen, or as is laid down in the case of Leak v. Babington, Cro. Eliz. 811, a chose in action. A bona fide purchase of an advowson is good, at what time soever it is made; and a corrupt purchase, whenever it is made, is bad. That which VOL. IX.-2

(A) In what Simony consists.

is said in the case of The Bishop of Lincoln v. Woolforston, 3 Burr. 1510, has been mentioned; namely, that the court were clear, that a grant of a next presentation, or of an advowson, made after the church was actually fallen vacant, was a void grant." But this, so far as it relates to the grant of an advowson, seems to be a mistake of the reporter. As the purchase of the advowson in the present case is not stated to have been connected with any corrupt contract for presenting Reynell, or with a design of presenting him, neither of these things is to be presumed, and consequently the presentation of him is not void.

MS. Rep. Barrett and Reynell, Clerk v. Glubbo, Clerk and Rolle, Hil. 16 G. 3, in C. B.; [2 Bl. R. 1052, S. C.]

It was lately decided by the Court of K. B., that a sale of the next presentation made in expectation of an immediate vacancy, the incumbent being on the point of death, was simoniacal, and the presentation made in pursuance of it void, though the clerk presented was not privy to the transaction, and though the contract was not made with a view to the presentation of any particular person; but this decision was afterwards reversed in the House of Lords.

Fox v. Bishop of Chester, 2 Barn. & C. 635; S. C. in Dom. Proc. 6 Bing. 1.

Notwithstanding the determinations, that if a person purchased the next presentation to a benefice when full, with design to present a certain person, and did present that person after it became void, it was an offence within the meaning of the statute, it became a doubt whether it was so, for a clerk to purchase for himself the next presentation to a benefice while it was full, and to be presented thereto after it became void.

To put an end to this doubt, it is by the 12 Ann. c. 12, enacted, "That if any person shall for money, reward, gift, profit, or advantage, or for or by reason of any promise, agreement, grant, bond, or other assurance, of or for any money, reward, gift, profit, or benefit, directly or indirectly, in his own name, or in the name of any other person or persons, take, procure, or accept the next avoidance or presentation to any benefice with cure of souls, dignity, prebend, or living ecclesiastical, and shall be presented or collated thereupon; that every such presentation or collation shall be utterly void and of no effect in law, and such agreement shall be deemed to be a simoniacal contract; and it shall be lawful for the queen's majesty, her heirs and successors, to present or collate unto such benefice, dignity, prebend, and living ecclesiastical, for that time or turn only; and the person so corruptly taking, procuring, or accepting such benefice, dignity, prebend, or living, shall from thenceforth be adjudged a disabled person to have and enjoy the same, and shall be subject to any punishment, pain, or penalty prescribed or inflicted by the laws ecclesiastical, in like manner as if such agreement had been made after such benefice, dignity, prebend, or living had become vacant.' 22

It is equally an offence within the meaning of the statute, where there has been a corrupt presentation by a person usurping the right to present, as if it had been by the person having the right.

3 Inst. 153.

If a presentation be by one usurping the right of patronage, and pending an action of quare impedit for removing his clerk, who is afterwards removed, the benefice be sold, this is an offence within the meaning of the statute, for the church was never full of that clerk. If this were allowed,

(A) In what Simony consists.

the statute might be eluded, for it would be only getting an usurper to present while the living was void, and then selling it.

3 Lev. 115, Walker v. Hammersly; 2 Ventr. 32, S. C.

A corrupt contract with the wife of the patron is an offence within the meaning of the statute, although the patron himself be not privy thereto. 1 Roll, R. 235; Cro. Ja. 385.

If a clerk contract to give money for being presented to a church, and be afterwards presented thereto gratis, this is an offence within the meaning of the statute; the clerk being deemed an unfit person to hold the benefice, for having at any time been capable of intending to obtain it corruptly.

Lane, 103, Kitchen v. Calvert.

A corrupt contract for procuring a presentation to a benefice between strangers, although neither the patron nor incumbent be privy thereto, is an offence within the meaning of the statute; for if there be a corrupt contract, it matters not by whom it is made: but in this case the presentee is a simoniacè promotus, and not a simoniacus.

Cro. Car. 331, Bawderok v. Mackaller; Sid. 329; 3 Lev. 337.

A second brother, having a right to present, made a corrupt contract to present a certain person; but in order to elude the statute, surrendered the right of presenting to his elder brother. The latter, not being privy to the contract, presented the person who, pursuant thereunto, was to be presented. It was holden that the corrupt contract was an offence within the meaning of the statute, and that its being performed by an innocent person made no alteration in the case.

Lane, 73, Calvert v. Kitchen.

An agreement was between Richards, a friend of Boughton's and Taylor, that Boughton should present Hide, and that Taylor should pay Richards 201. per annum for six years, in case Hide should so long live, for the use of Boughton. In an action of quare impedit, Hide pleaded, that he had no notice of the agreement at or before his presentation. Upon a demurrer it was holden, that the corrupt contract is enough, and that it is immaterial whether he had or had not notice thereof.

3 Lev. 338, Rex v. Hide and others.

If a stranger, the church being void, contract with the patron for a grant of the presentation, and present a person not privy to the contract, the presentee, although the grant, it being of a chose in action, be void, is not to be considered as an usurper, but as a simoniacè promotus, because he was presented in pursuance of a corrupt contract.

Cro. Eliz. 788, Baker v. Rogers.

If a father, the church being void, contract with the grantee of the next presentation to permit the grantor to present his son, and the son be presented, he is a simoniacè promotus.

Cro. Ja. 533, Booth v. Potter.

If a father, in consideration of a clerk's marrying his daughter, covenant with the father of the clerk to procure for him a presentation to a certain

(A) In what Simony consists.

church when it shall become void, and the clerk be presented, when the church becomes void he is a simoniacè promotus.

Cro. Car. 425, Birt v. Manning.

If an agreement be to pay five pounds per annum to the widow of the last incumbent, or ten pounds per annum to the son of the last incumbent, so long as he shall be a student at Cambridge and unpreferred, neither of these is an offence within the meaning of the statute.

Noy, 142, Baker v. Mounford

A bond, with a condition that the incumbent shall not be absent eighty days in a year from his living, is not simoniacal; this being a lawful condition.

1 Roll. Rep. Carey v. Yeo.

A covenanted, that B his son should marry C, the daughter of D. In consideration of the marriage D covenanted to advance 300l. for his daughter's portion, and A covenanted to settle certain lands on B and C. 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 holden, 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.

Cro. Ja. 426, Birt v. Manning.

Where a chapel in a township was endowed in 1428 with the vicarial tithes, and the inhabitants had the right of appointing a curate, and in an inclosure act, passed in 1797, it was recited as a matter of doubt, whether the curate was entitled to the small tithes, or to a modus in lieu thereof; and on a vacancy in 1801, the inhabitants appointed JP curate, on his signing an agreement with the inhabitants, stating that he was appointed to the curacy, and to the money-payment of 401. 18s. 2d. annually, payable out of the lands in P, and that the inhabitants, considering the stipend insufficient, voluntarily agreed with J P to allow him in addition the sum of 291. 11s. 10d., provided, and it was thereby agreed, that the additional payment should not in any way alter the money-payment of 401. 18s. 2d., wherewith the lands, &c., had been from time immemorial charged in the right of the said church, and that the said J P did consent to accept the curacy on those terms: It was held by the Court of K. B. that the ment was entered into for restraining the curate from asserting his rights, and was therefore an agreement for a benefit to the patron within the statute, and that the presentation was simoniacal and void; and the crown having presented for the simony, the court refused a mandamus to the bishop to license a subsequent curate appointed by the inhabitants.

The King v. Bishop of Oxford, 7 East, 600.

agree

Where a bond was given by a father to his son, for securing to him an annuity until he should be in possession of a living of a given value, and the son signed an agreement, declaring that he would take holy orders, and accept such a living as soon as it could be procured for him, the Lord Chancellor expressed great doubts whether such a bond was not void: but the case was decided on other grounds, and quære?

Kircudbright v. Kircudbright, 8 Ves. 53.

(B) Bonds for resigning Benefices. (General Bonds.)

A BOND for resigning a benefice is sometimes special, at other times it is general.

The condition of a special bond is, that the incumbent shall resign in favour of a certain person, when that person shall be capable of being presented to the benefice.

The condition of a general bond is, that the incumbent shall resign upon. request.

A bond, with condition to resign within three months after request, was holden to be good, although the bond appeared to have been given with an intent that the patron should present his son; and by the court: A man may without any colour of simony bind himself for a good reason to resign, as if he take a second benefice, or if he be non-resident, or that the patron may present his son: but, if the condition of a bond be, to let the patron have a lease of the glebe or tithes, or to pay a sum of money, it is simoniacal. The judgment in this case was affirmed in the Exchequer Chamber. Cro. Ja. 248, Jones v. Lawrence. [So, a bond given by the incumbent to the patron to resign if he did not reside upon the living, hath been holden good. Bagshaw v. Bossley, 4 Term R. 78. And where a bond was conditioned to reside, to resign for the patron's son to be presented, and to keep the parsonage-house and chancel in repair, the Court of King's Bench gave judgment for the plaintiff without argument, saying, as this was not precisely similar to the case of the Bishop of London v. Ffytche, they were bound by the established series of precedents. Partridge v. Whiston, Ibid. 359.]

The doctrine of this case, which was the case of a special bond, was not many years after extended to the case of a general bond, and the judgment in the latter case was also affirmed in the Exchequer Chamber.

Cro. Car. 180, Babington v. Wood; [Sir Wm. Jon. 220, S. C.; Watson v. Baker, Sir T. Raym. 175, S. P.]

In two modern cases, the court refused to permit the validity of a general bond for resigning a benefice to be argued against: and, in the former of these cases, it is said by the court, that a general bond for resigning a benefice has been frequently holden good in the Court of Chancery.

Stra. 227, Peele v. The Countess of Carlisle; Sayer, 141, Wyndham v. Bowen. [And in the case of Grey v. Hesketh, Lord Hardwicke said, these sort of bonds are held good at law, and so they are in equity, unless an ill use is attempted to be made of them, in which case that court will interfere. However, notwithstanding these decisions, general bonds of resignation were declared void at law by the House of Lords in the great case (a) of the Bishop of London v. Disney Ffytche, (May, 1783;) and the judgment of the Court of Common Pleas, affirmed by the King's Bench, was accordingly reversed.

Ambl. 268. (a) This decision, which was brought about by the great eloquence and ability of the Chancellor Thurlow, and the honest zeal of the bishops, was contrary to the opinion of all the judges except Eyre, B., and seems not likely to be acquiesced in. Vide 4 Term. R. 78, 359.]

In this case, L. D. Ffytche, Esq., brought a writ of quare impedit, in the Common Pleas, against the Bishop of London, for refusing to admit, institute, and induct the Rev. J. Eyre, the clerk presented by Mr. F. to the rectory of Woodham Walter, in Essex, whereof Mr. F. was patron. In Trinity term, 1781, after the commencement of the action of quare impedit, the bishop filed a bill of discovery in chancery, to discover whether a bond or security for resignation had been given by the clerk to the patron, in order to avail himself of the discovery for his defence at law. To this bill

B