space of six calendar months next after they shall be capable by law to make and execute a conveyance of freehold lands, shall refuse or neglect to make out a good title unto, and execute a proper conveyance of the said messuage, lands, and premises, and the inheritance thereof, in fee simple, unto the said E. F., his heirs or assigns, free from incumbrances, except as aforesaid, (such conveyance being prepared and tendered for execution, by and at the expense of the said E. F., his heirs or assigns); then the said E. F., his executors, administrators, or assigns, shall, at any time thereafter, be entitled to demand, sue for, recover, and receive of and from the said D. D., the infant, his heirs or assigns, or the personal representative for the time being of the said D. D., deceased, the said sum of £2,800, so to be paid by the said E. F. to the said A. B. as aforesaid, with interest thereon, to be computed from the said 10th day of this present month of October to the day on which the said principal money shall be actually paid; and the said A. B. and C. D., or one of them, their or one of their heirs, executors, or administrators, shall and will, immediately on such refusal or neglect, repay, or cause to be repaid unto the said E. F., his executors, administrators, or assigns, the said sum of £200, so to be paid by the said E. F. as aforesaid, together with interest for the same after the rate of £5 per cent. per annum, to be computed from the said 10th day of October to the day on which the repayment of the said sum of £200 shall be actually made; and also, shall and will, at the same time, pay or cause to be paid unto the said E. F., his executors, administrators, or assigns, the further sum of £4,000, by way of liquidated damages (e), for the non-performance of the covenants and (e) Whenever it is the intention of the parties to an agreement, that a party committing a breach of it shall pay an ascertained sum as damages, the agreement should contain an express stipulation, that such sum is to be paid as "liquidated damages." For otherwise, it seems that the sum to be paid will be considered as a penalty, and the amount of damages will be for the consideration of a jury. (Astley v. Weldon, 2 Bos. & Pul. 346). It is not, indeed, essential that the words "liquidated damages" should be employed, if the in SALE OF AN INFANT'S ESTATE. Penalty or liquidated da mages. SALE OF AN INFANT'S ESTATE. agreements herein before contained; and on the part of the said A. B. and C. D., or either of them, their or either of their heirs, executors, or administrators, or of the said D. D., the infant, or his heirs, to be observed and performed IN WITNESS whereof, the said parties to these presents have hereunto set their hands and seals the day and year first above written. tention of the parties is otherwise clear; (Lowe v. Peers, 4 Burr. 2235; Fletcher v. Dyche, 2 T. R. 232; Jones v. Green, 3 You. & Jerv. 298; Huband v. Grattan, 1 Al. & Na. 389); but, of course, it is always best to express the intention, and not leave it to be implied. When the stipulation is either expressly, or by implication, that the party committing a breach of the agreement shall pay a fixed sum as liquidated damages, it is clear that he cannot have any relief as against a penalty, or recover any additional compensation, but must pay the exact sum; (Barton v. Glover, Holt, N. P. 43; Reilly v. Jones, 1 Bing. 302; S. C. 8 J. B. Moore, 244; Lowe v. Peers, Jones v. Green, ubi supra); and there can be very little doubt that this holds as well in the case of agreements not under seal as in the case of those which are under seal, although the contrary has been affirmed in a recent case at Nisi Prius. (Randall v. Everest, 2 Car. & Pay. 577). Several of the other cases cited in this note were cases of agreements not under seal, but the point does not seem to have been raised in any of them. If the statement in the agreement be ambiguous, as that "the penal sum of £ shall be paid as liquidated damages," the court will endeavour to collect the real intention of the parties from the general terms of the instrument. (Davis v. Penton, 6 B. & C. 216; S. C. 9 D. & R. 369; Horner v. Graves, 7 Bing. 735; 5 Moo. & Pay. 768; Coisdee v. Bolton, 3 Car. & Pay. 240). But it seems that a sum cannot be fixed as liquidated damages generally, for the breach of an agreement containing different stipulations of different kinds and consequence. (Kemble v. Farren, 6 Bing. 141; S. C. 3 Moo. & Pay. 425; Charrington v. Laing, 6 Bing. 242; S. C. 3 Moo. & Pay. 587). A separate sum should, in such cases, be fixed as the damages for the breach of each separate stipulation. IV. AGREEMENT for the SALE of a NEXT PRE-SALE OF NEXT PRESENTA- ARTICLES OF AGREEMENT made and entered Parties. day of, 18-, BETWEEN A. B. of into this (a) The principal peculiarity in sales of next presentations and advowsons, is occasioned by the law relating to simony. It does not appear that simony was an offence punishable by the common law; (2 Blac. Com. 279); but by the statute 31 Eliz. c. 6, it is enacted 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. If, however, the simoniacal presentee die without having been 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. Stat. 1 Will. & Mary, c. 16. By the statute 12 Anne, stat. 2. c. 12, it is declared, that if any person for money or profit shall procure, in his own name, or the name of any other, the next presentation, to any living ecclesiastical, and shall be presented thereupon, such contract is simoniacal; the presentee is disabled from holding the benefice, and the presentation devolves to the crown. It is obvious, that under the statute 31 Eliz., any presentee giving or promising to the patron any benefit or profit for being presented, incurs the guilt of simony. (3 Cru. Dig. Tit. 21, Ch. II. s. 55, 56 ; 2 Bl. Com. 279). Marriage is a profit within the meaning of the statute. (Byrte v. Manning, Cro. Car. 191). If the presentee be not cognisant of the simony, the presentation devolves to the crown, but he is not disabled from holding the benefice. (Hutchinson's Case, 12 Rep. 101, 74; 3 Inst. 154, Cro. Eliz. 789 ; Rev v. Trussel, 1 Sid. 329, 2 Keb. 204). Another kind of simony, is the sale of the presentation during a vacancy of the church, which is within the statute of 31 Eliz., and is also void at law, on account of such presentation being a chose in Simony, statutes respect ing. Simony, where patron presents for profit. By sale of presentation or advowson during vacancy. PRESENTA SALE OF NEXT &c. [vendor], of the one part, and C. D. of &c. [purchaser] of the other part, as follows; (that is to say), EACH of them the said A. B. and C. D. (so far as relates TION. Agreement. Prerogative presentation. action which cannot be transferred. (Bishop of Lincoln v. Wolferstan, 1 Wm. Black, Rep. 490; 2 Wils. 174; 3 Burr. 1504). But if the advowson be granted during the vacancy, the grant is only void as to that presentation, and not as to the advowson. (S. C. see Grey v. Hesketh, Ambler, 268). But if the patron sells the advowson during the vacancy, neither he nor his vendee can have a quare impedit, because the vacancy makes it a chose in action, so that it does not pass to the grantee; and the grantor has destroyed his action by the conveyance. (Leak v. Bishop of Coventry, Cro. Eliz. 811). A sale during the incumbency of a clerk, who has been wrongly presented, is considered as a sale during a vacancy. (Walker v. Hammersley, Skin. 90). It is not now deemed simony (though the contrary was formerly held) to purchase a next presentation, the church being full, with a view to present a particular person who is afterwards presented. (3 Cru. Dig. Tit. 21, Ch. II. s. 69; 6 Bing. 17. The statutes against simony apply only to the presentation corruptly procured, or intended to be procured; and, therefore, where in pursuance of a contract which was simoniacal in respect to the next presentation, there was a conveyance of the advowson, including the next presentation; it was held that the conveyance was void only as to the simoniacal transaction, and not as to the conveyance of the advowson. (Greenwood v. The Bishop of London, 5 Taunt. 727). Neither the purchase of an advowson in fee, nor of the next presentation alone, the incumbent being in extremis, within the knowledge of both parties, but the purchase being made without the privity, and without a view to the nomination, of any particular clerk, is void on the ground of simony. (Barret v. Glubb, 1 Wm. Bl. 1052; Fox v. Bishop of Chester, 6 Bing. 1. S. C., 1 Dow. N. S. 416). The purchase of an advowson in fee by a clergyman, and the presentation of himself on the next vacancy, is not, it seems, within the statute 12 Anne. (Cases & opinions, 409). See more on the subject of simony. (Bac. Abr. Tit. Simony. Watson's Complete Incumbent). If the incumbent of a church be made a bishop, the king is entitled, by virtue of his prerogative, to present for that term. (3 Wils. 232). But this right only postpones, and does not take away the right of the patron of the next turn to present. (Grocers' Company v. Archbishop of Canterbury, 3 Wils. 216). And, therefore, if a man purchase the next presentation to a church, and the incumbent be made a bishop, the purchaser will be entitled to present, on the suc SALE OF NEXT TION. for sale. to the acts and deeds on his own part to be performed), doth hereby agree with the other of them: THAT the said A. B. shall sell, and the said C. D. shall purchase, the first and next presentation and nomination of and to the rectory and parish church of, in the county of, and diocese of at or for the price or sum of £-- to be Consideration, paid by the said C. D. to the said A. B., in manner following (that is to say), the sum of £, part thereof, immediately upon the execution of these presents, and the sum of £, remainder thereof, on the day of next, at the office of· : THAT the said A. B. shall, within for delivery of from the date hereof, at his own expense, deliver to abstract, the said C. D., or his solicitor, an abstract of the title of him the said A. B., to the said next presentation (b): That the said A. B. shall, on payment, on the said day of at the said office of of the said sum of remainder of the said purchase money, execute and procure to be executed by all other necessary parties, (if any), a proper grant, or other assurance of the said next presentation, unto the said C. D., his executors, administrators, and assigns; and that such grant or assurance shall be prepared by, and at the expense of, the said C. D., and shall be tendered or left by him on the said day of at the said office of, for execution, by the said ceeding vacancy. (Cailland v. Troward, 2 H. Black. 324; Trower v. Cailland, 6 T. R. 439, 778). Hence, in agreements for the sale of next presentations, it is unnecessary to provide, as is sometimes done, for the incumbent being promoted to a bishopric. The next presentation to a church is personal property, and goes to the executor or administrator, if not specifically disposed of by will. (1 Wm.'s executors, 420; infra, Precedent XXXII. note (d). (b) It would seem, that the title which the purchaser of an advowson, or of a next presentation, can now require, must be deduced through a period of sixty years at least, and through such longer period (if needful), as shall include three incumbencies, not reckoning the incumbencies of clerks presented by the crown, on the promotion of a former clerk to a bishopric. But it will not be required to produce, under any circumstances, a longer title than for 100 years. (See statute 3 & 4 Will. IV. c. 27, ante vol. I. p. 148). |