Presentation at Cambridge unpreferred; and where a patron took a bond of his presentee, to pay five pounds yearly to the wife and children of the last incumbent, in both cases the clerk retained the living. (1) But I doubt, says Mr. Place, the author of the clergyman's law, as well he might, whether these cases are to be taken for law. Charitable resolutions, if any such were given. (2) If a person presents by usurpation to a beneby usurper fice, by reason of any corrupt contract, the void. Difference sentation, by an usurper and patron. pre sentation, institution, and induction thereupon are void, for the act extends to all patrons, bodies politic and corporate, as well by wrong as by right (3), so that there is an actual, though there need not be an effectual presentation (*), and not only to benefices with cure, but to dignities, prebends, and all other ecclesiastical livings. (5) There is, however, this difference between between pre- a presentation or collation made by a rightful patron and an usurper, that in the case of a rightful patron who corruptly presents or collates, there the king by the express letter of the act shall present. But where one usurps, and corruptly presents or collates, there the king shall not present, but the rightful patron, for the branch that gives the king power to present is (*) Abigail Baker v. Mont-combe v. Bishop of Winford, Noys's R. 142. (2) Wats. Cl. L. ch. 5. 39. chester, Hob. R. 167. (5) 1 Inst. 120. a. only intended where the rightful patron is in fault; and where the rightful patron is in no fault, there the corrupt act and wrong of the usurper makes the benefice void, but does not take away the lawful title to present from the rightful patron ('), as it would be hard that an usurper should forfeit the right of another in whom there is no fault. the clerk at If a stranger, after the church is void, contracts Privity of with the patron for the void turn, and the the time of stranger in consequence presents, and after the contract not necessary to induction of the incumbent acquaints him with make simothe contract, and requires a consideration for it, ny. although the grant of a void turn, as being a thing in action is void, and the presentee comes in quasi per usurpation, yet as the cause is through a simoniacal contract, (as it is to be presumed) the true patron would not otherwise have permitted that presentment; this is as much simony as if the grant had not been void. (2) So if a brother gives a patron money to present his younger brother, the church being then void, and the patron accordingly presents, or where a testator contracts that his executors shall present some individual named, the church being void, and the executors in consequence present the nominee (3), or where a father contracts for (1) 3 Inst. 154. (2) Baker v. Rogers, Cro. El. 788. Moore's R. 914. (3) Parson's Law, c. 18. 134, 135. Wat. Eccl. L. c. 5. 38. Purchase of a void turn or next avoidance, when incum bent in a money with the grantee of the void turn, to permit the grantor to present his son, and the grantor at the request of the father presents accordingly, these are all simony. (') For the purchase of a void turn when the church is void, or of the next avoidance even by a father when an incumbent is dying with the son's privity to the purchase, is no less simony in dying state. the case of a son than in that of any other person (2); the grant of the next avoidance for money when a parson is sick and ready to die being clearly simony, as there is a benefit or corrupt advantage gained by the patron for a bad purpose. (3) Hence, in a very late case, not yet reported (4), where an incumbent was afflicted with a mortal disease, in extreme danger of his life, which was thereby greatly despaired of, and the patron knowing this, bargained for the next presentation, and executed a grant to the grantee for 99 years, if he the grantor should so long live, (*) Booth v. Potter, Cro. | Kitchen v. Calvert, Lane's R. Cro. Jac. 533. 102. (2) Sheldon v. Brett, Winch's R. 63. Geffrey Booth v. Potter, Cro. Jac. 533. (3) Smith v. Shelborn, Cro. El. 685. 2 Ventr. R. 39. Winchcomb v. The Bishop of Winchester, Hob. R. 165. (4) Fox v. The Bishop of Chester. The author is obliged to his friend Mr. Barnewall for the report of this case, which will be found in his second volume of Reports, page 635. . the grantee purchased without any knowledge of the presentee, or view to present him, but the bishop refusing to institute, the Court of King's Bench, said: In this case the judgment of the court below must be affirmed. Our judgment is founded upon the language of the stat. 31 Eliz. c. 6. and the well known principle of law, that the provisions of an act of parliament shall not be evaded by shift or contrivance. The authorities quoted at the bar, are, to a certain extent, conflicting, and not easily reconcilable with each other. The decision mentioned by Hutton J., as quoted in Winch 63. might perhaps be a strong authority in favour of the defendant, if we were possessed of all the facts of the case, but unfortunately we are not. It is met, too, by the case of Barrett v. Glubb, which certainly contains the opinion of very learned judges in favour of the validity of the sale of the next turn made when the death of the incumbent is expected speedily to take place. But that case has not the full weight of a judicial decision, because it does not appear to have been acted upon. For upon reference to the minutes of the decree in the register book, it appears that the Lord Chancellor decreed a conveyance of the advowson, and gave costs to the plaintiffs, the purchaser and his clerk, but he did not decree an injunction to restrain the seller from prosecuting his quare impedit, which we think he would have done if he had thought the purchaser entitled to the presentation, it being clear that the seller must prevail in the quare impedit, if permited to prosecute it, because the advowson had only been contracted for and not actually conveyed before the benefice became void; and if the Lord Chancellor had thought the purchaser entitled to the presentation, he should have ordered the seller to present the purchaser's nominee, as in the case of a mortgage, this being the only mode in which such nominee could be entitled to institution to the benefice. Further, it appears by the reporter's book, and also by the report in Dickins, that there had been a treaty for the purchase of the advowson of some continuance, before the final close of the bargain, and it does not appear that the vendor knew of the incumbent's dangerous state when the contract was made. This treaty, however, was not mentioned in the case sent by the Lord Chancellor to the Court of Common Pleas. In the present case no antecedent treaty is found by the verdict; but the contract made on 12th of November, and the conveyance of that date, are the only facts found on this part of the case, and we cannot presume any other. Let us then direct our attention to the language of the statute, and to the facts found by this special verdict. The statute was made, as appears by the preamble to the fifth section, which is incorrectly printed at the end of the |