Ep. Exeter, v. Hele, Show. Parl. Ca. 88. Of Simony. 89 a. 3 Inst. 153. refusal, specially and directly; not only that he is a schismatic or a heretic, but also the particular schismatical or heretical opinions, with which he is charged, must be set forth; for the examination of the bishop does not finally conclude the plaintiff; and without showing specially, the Court cannot inquire and resolve whether the refusal be just or not. If the cause of refusal be spiritual, the Court shall write to the metropolitan to certify thereof; or if the cause be temporal, and sufficient in law, which the temporal court shall decide, the same may be traversed, and an issue thereupon joined, and tried. by a jury. 54. It has been determined by the House of Lords, that it was a good plea on the part of a bishop, in a quare impedit, that the presentee was a person not sufficient or capable in learning to have the church; and that he need not set forth in what kind of learning, or to what degree, he was defective. 55. As it is of the utmost importance to the public that ecclesiastical offices should be conferred on those only whose learning and piety qualify them for the duties annexed to such offices; the law has always been extremely careful in watching over those who have advowsons, least they should be influenced, in the exercise of the right of presentation, by any corrupt or improper motives. It has therefore been 1 Inst. 17b. established 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 a person thus presented to a church is said to be simoniacè pro motus. 56. By the statute 31 Eliz. c. 6. it is enacted, for avoiding of simony, that if any patron, for any sum of money, reward, gift, profit, or benefit, directly or indirectly, or for or by reason of any promise, agreement, grant, bond, covenant, or other assurance, shall present or collate any person to an ecclesiastical benefice or dignity, such presentation shall be void; the presentee be rendered incapable of ever enjoying the same benefice; and the Crown shall present to it for that time only. 57. It was formerly held, that if a person who had Wats. 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 simonist, 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 Will. & Mary, c. 16., it is enacted, that if a person simoniacally presented, shall die without being convicted of such simony, in his lifetime, such simoniacal contract shall not prejudice any innocent patron or clerk, on pretence of lapse to the crown, or otherwise. Presentation 58. The first kind of simony under the statute Procuring a 31 Eliz. is, where any sum of money, gift, reward, for Money. profit, or benefit is given or promised, directly or indirectly, for procuring a presentation to a benefice. And Lord Coke says, simony is more odious, because 3 Inst. 156. it is ever accompanied with perjury: for the presentee is sworn not to commit simony. 59. If a clerk seeks to obtain for money a pre- Wats. 43. sentation to a void church, though afterwards the patron presents him gratis, yet this simoniacal attempt disables him from taking the benefice; being deemed Idem, 37. an unfit person to hold it, for having at any time been capable of intending to obtain it corruptly. 60. 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. Byrte v. 61. But where A. covenanted that B. his son should Manning, Cro. Car.191. marry C. the daughter of D., in consideration of which D. covenanted to advance 3001. 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. Mounford, Noy, 142. Hutchinson's 12 Rep. 101. Id. 74. 3 Inst. 154. Cro. Eliz. 789. 62. A reservation of a profit to a stranger, as an annuity to the widow or son of the last incumbent, does not appear to be within the statute 31 Eliz., though Doctor Watson doubts it; but it is perfectly clear that a reservation of any kind of profit, in favour of the patron, is within the statute. 63. It was resolved by all the Judges, in 8 Jac. I., that if any should receive or take money, fee, reward, or other profit, for any presentation to a benefice with cure, although in truth he which is presented be, not knowing of it, yet the presentation, admission, and induction, are void, by the express words of the statute 31 Eliz., and the king shall have the presentation hac vice. For the statute intends to inflict punishment upon the patron, as upon the author of this corruption, by the loss of his presenta tion; and upon the incumbent who came in by such a corrupt patron, by the loss of his incumbency, although that he never knew of it. But if the presentee be not cognizant of the corruption, then he shall not be within the clause of disability in the same statute. 64. In a writ of error to reverse a judgement, Rex v. Trussel, whereby the king had recovered upon a title of 1 Sid. 329. simony, which was, that a friend of the clerk had 2 Keb. 204. agreed to give a sum of money to J. S., who was not the patron, to procure the clerk to be presented to a church, who was presented accordingly. It was assigned for error, that it did not appear that either patron or clerk were acquainted with the agreement. But the Court said, the clerk was simoniacè promotus. And it was said that Doctor Duxon had enjoyed the church of St. Clements above twenty years by such a title of the king's; the presentee of the patron being ousted, by reason of a friend's having given money to a page of the Earl of Exeter, to endeavour to procure the presentation; and neither the earl nor the clerk knew any thing of it. 65. The second kind of simony is, where the right Sale of the during a Presentation of presenting is sold at the time when the church is vacant. This was also held to be void at common Vacancy. law; because, during the vacancy of the church, the right of presenting was but a chose in action, which could not be transferred. v. Wall, 66. A patron of an advowson, the church being Stephens void, granted to B. proximam presentationem to the Dyer, 282 b. said church, jam vacantem, ita quod liceat B. hac vice Jenk. Cent. 6. ad dictam ecclesiam presentare. Resolved, by all the Judges of England, that the grant was void, for the present avoidance was a thing Case 13. Benloe, 192. Amb. 268. Ep. Lincoln v. Wolfors tan, 1 Black. R. 490. 2 Wils. R. 174. 3 Burr. R. 1512. Leak v. Ep. Coventry, Cro. Eliz. 811. Walker v. Skin. 90. in action and privity, and vested in the person of the grantor. 67. A lease of an advowson, granted after the church became vacant, was adjudged void, as to the immediate presentation. And it is said by Lord Hardwicke, that the sale of an advowson during a vacancy was not within the statute of simony, as a sale of the next presentation was, but was void by the common law. 68. In a modern case, the Court of King's Bench was clear that a grant of a next presentation, or of an advowson, made after the church was actually fallen vacant, was a void grant, quoad the fallen vacancy. Lord Mansfield and Mr. Justice Wilmot said, the true reason why a grant of a fallen presentation of an advowson, after avoidance, is not good, quoad the fallen vacancy, is the public utility; and the better to guard against simony: not for the fictitious reason of its being a chose in action. 69. It was held in the same case, that a grant of a presentation, after institution of the incumbent to a second living, which vacated the first, was void; because the church was considered as vacant from the time of institution. 70. If the patron sells the fee simple of the advowson after the avoidance, neither he nor his vendee can have a quare impedit; because the avoidance makes it a chose in action, so that it does not pass to the grantee; and the grantor has destroyed his action by his conveyance; so none can have it. 71. If a presentation be made by a person usurpHammersley, ing the right of patronage, and pending an action for removing his clerk, who is afterwards removed, the benefice is sold; this is an offence within the mean |