don will not sentee to re Where a person is preferred to a benefice by General parsimony, and afterwards comes a general pardon, help a simowhich finds him in possession, though such par- niacal predon discharges the punishment of simony, and tain a benemay prevent a criminal prosecution both as to fice. the patron and incumbent, so that the forfeiture of the double value of the benefice is not recoverable upon either, yet that will not enable the clerk to hold on the benefice, which was never full by reason of the simony ('), and the matter is still examinable by the ordinary, who ought to provide that the benefice is not served with corrupt persons (2), the church being void as to that presentation. (3) If one has the right of presentation and another the right of nomination to a benefice, and only one of them is guilty of presenting corruptly, the right of the other is not thereby prejudiced, nor will he be subject to any forfeiture. (4) Where one has the right of presentation, and another the right of no mination. A donative is not within the words of the A donative statute, yet as a corrupt presentation is the mis. is within the meaning of chief intended to be remedied, it is within the the statute. meaning (5), and consequently an agreement to (1) 2 Hawk. Pl. C. ch. 37. | Hob. R.167. Vid. 1 Inst. 120.a. 396. 3 Inst. 154. note 4. respecting the Bill (2) Smith v. Shelburne, of Rights, 1 W. and M. s. 2. Cro. El. 685. Phillips's case, ch. 2. s. 12. Sid. Rep. 170. Rex v. The Bishop of Norwich, Cro. Jac. 385. (4) Calvert Lane's R. 74. v. Kitchen, (5) Bawderock v. Mack (3) Winchcomb v. Pulleston, aller, Cro. Car. 331. R Where clerk purchases sentation, benefice being full. c. 12. pay twenty pounds to be presented and instituted to one of the king's donatives is simony. It was formerly doubted whether it was the next pre- simony for a clerk to purchase for himself the next presentation to a benefice while it was full, and to be presented thereto when it became void. To put an end to which, the statute Stat. 12Ann. 12 Anne, c. 12. enacts, 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, 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, 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 for that time or turn only; and the person so corruptly taking, procuring, or accepting such benefice 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 law ecclesiastical, in like manner as if such agreement had been made after such benefice had become vacant. tract with A corrupt contract with the wife of the patron Corrupt conis an offence within the meaning of this statute, the patron's though the patron himself is not privy thereto; relations. and 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 held 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. (1) So it has been doubted whether the purchase of an advowson in fee by a clergyman, and a presentation of himself upon the death of the incumbent, be within this statute. It appears from an opinion of the late Mr. Fearne, that he did not consider such a purchase as prohibited by that statute, and that a presentation by a trustee of such a purchaser, of the purchaser himself might be made. This opinion is supported by lord chief justice De Grey's argument, if it be law, in the case of Barrett v. Glubb, before referred to, in which he Et vid. Byrte v. (1) Calvert v. Kitchen, Lane, 73. Manning, Cro. Car. 426. Penalties. distinguishes between the next presentation to a church, and a purchase of an advowson in fee; for, in the first case, he admitted that a purchase would be simoniacal if the incumbent was in extremis; whereas in the second case he held it good. (1) As to the punishment of the patron, whether he is an usurper or other corrupt contractor, or person corruptly taking, procuring, or accepting the Patron for- benefice, he forfeits the double value of one feits double the value. year's profit of the benefice, which is to be accounted according to the true value, as the same may be letten, and shall be tried by a jury, and not according to the old valuations and taxations of the church in the king's books and first fruits office (2); and it has been said that this double value is also forfeited when a simoniacal contract is made by a clerk or other person, even if the patron afterwards presents the clerk gratis. (3) The forfeitures must be sued for in the courts of chancery, king's bench, common pleas, or exchequer, and not in any inferior court of record. (4) All princi. pals in simony. There are no accessaries in simony, all are principals. (5) Neither the simoniacus nor the simoniace promotus can sue for tithes, the right being taken away by the corrupt contract (1); and if a person coming into a benefice by simony sues for tithes, the defendants may plead him no incumbent, because of the simony, but they have no remedy against such simoniacal incumbent for the tithes and profits he may have received. (2) Nor can the ordinary excuse himself if he receive the clerk of an usurper by pleading simony, for he is not one of those who has an interest. (3) By 1 William & Mary c. 16. if a person simo- Person preniacally presented, dies without being convicted sented simo. niacally of such simony in his lifetime, such simoniacal dying. contract shall not prejudice any innocent patron or clerk, on pretence of lapse to the crown or otherwise. By the same statute it is enacted, That no lease Lease made really and bona fide made by any person simoniack by simoniack. or simoniacally promoted for good and valuable consideration, to any person not being privy unto, or having notice of such simony, shall be impeached or avoided by reason of such simony, but shall be good and effectual in law. A bond of resignation is a bond given by a Resignation person about to be presented to any benefice (*) Marche's R. 84. (2) Winchcombe and Palleston's case, Hob. R. 168. Riesby v. Wentworth, Cro. El. 642. Steven's case, Lit- (3) Winchcombe's case, bond. |