the king had recovered upon a title of simony, which was, that a friend of the clerk had 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. presentation cancy. 61. The second kind of simony is where the right of Sale of the presenting is sold at the time when the church is va- during a vacant. This was also held to be void at common law, because during the vacancy of the church, the right of presenting was but a chose in action, which could not be transferred. Stephens v. Wall, Dyer, Cent. 6. Case 62. A patron of an advowson, the church being void, granted to B. proximam presentationem to the said 282 6. Jenk. church, jam vacantem, ita quod liceat B. hac vice ad dic- 13. tam ecclesiam presentare. And it was resolved, by all the judges of England, that the grant was void; for the present avoidance was a thing in action and privity, and vested in the person of the grantor. 63. A lease of an advowson, granted after the church Benloe, 192. became vacant, was adjudged void, as to the immediate presentation. And it is said by Lord Hardwicke, that Amb. 268. 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. 64. In a modern case, the Court of King's Bench resolved 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. Ep. Lincoln v. 3 Black. R. 490. 3 Burr. R.1512. Leak ". Ep. Coventry, Cro. Eliz. 811. Walker v. 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. And 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. 65. 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. 66. If a presentation be made by a person usurping 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 meaning of the statute, for the church was never full of that clerk. And if this were allowed, the statute might be eluded; for it would be only getting an usurper to present while the church was void, and then selling it. 67. Where a person purchased the next presentanext presenta- tion to a benefice, the church being then full, with an intention to present a particular person, à subsequent presentation of that person was formerly deemed simony. But it is, now an universal practice to purchase the next presentation to a living, the church being full; and there is no modern instance where a presentation under such circumstances has been questioned. Sale of the tion good. Cro. Eliz. 685. Vin. Abr. 458. 68. It has been several times laid down that a purHob. 165. 19 chase of the next presentation to a church, when the incumbent is in a dying state, is simony: but it was determined, in the following case, that a purchase' of `an advowson in fee simple under these circumstances, was not simony. 69. The plaintiff Barrett, having notice that the incumbent of a living was on his death-bed, and that it was uncertain whether he would live over the night, purchased the advowson in fee of the defendant. The incumbent died the next day, and the purchaser presented his clerk upon that avoidance. A question was referred by the Court of Chancery to the Court of Common Pleas, whether the said presentation was void, as being on a simoniacal contract. Serjeant Hill argued for the plaintiff that this was no simony, being the sale of an advowson in fee, before an actual vacancy; that simony was properly defined a presentation in respect of reward; that the statutes of simony being penal, and restrictive of the common law, ought therefore to be construed strictly; that fraud or simony ought not to be presumed or intended. Serjeant Glyn for the defendants insisted that the common law, previous to any statute, took notice of corrupt presentations, as contracts ex turpi causâ; that no profit was allowed to be made of a right of patronage; that a purchase made with an intent to present a particular person was simoniacal; and the laws against simony, when they merely vacated the presentation, were considered as remedial, and construed largely ; when they inflicted a forfeiture, as penal, and construed strictly. Lord Chief Justice De Grey said, he was not able to doubt upon the question. An advowson was a temporal right; not indeed jus habendi, but jus disponendi. The exercise of that right was by presentation. The right itself was a valuable right; therefore, an advowson was held to be assets in case of lineal warranty. It was real assets in the hands of the heir; and the trustee or Ante, c. 1. mortgagee of an advowson was bound to present the clerk of the cestui què trust, or mortgagor. Thus far it was a valuable right, and properly the object of sale: but the exercise of this right was a public trust, therefore ought to be void of any pecuniary consideration, Exception. either in the patron or the presentee. It could not, it ought not, to produce any profit. It was not vested in a guardian in socage, nor was he accountable for any presentation made during the infancy of his ward. Simony was unknown to the common law, though corrupt presentation was. But what was or was not simony depended on the statute of 31 Eliz., which did not adopt all the wild notions of the canon law, but had defined it to be a corrupt agreement to present. No conveyance of an advowson could be affected by that act, unless so far as it affected the immediate presentation; therefore a sale of an advowson, the church being actually void, was simoniacal and void in respect to the then present vacancy. But it had never been thought, that to purchase an advowson merely with the prospect, however probable, that the church would soon become void, was either corrupt or simoniacal; though by the common law, if a clerk or a stranger, with the privity of the clerk, contracted for the next avoidance, the incumbent being in extremis, it was held to be simoniacal. The present case was the purchase of an advowson in fee. No privity of the clerk appeared. The church was not actually void, but in great probability of a vacancy; which, however, was by no means equivalent to a certainty. He said the judges would go beyond every resolution of their predecessors, to determine this to be simony. Suppose this had been the purchase of a manor, with the advowson appendant, and the incumbent lying in extremis, what must be done in the present case was simony. Must the Court have declared the appendancy to be severed, or that the whole manor was purchased corruptly, for the sake of the advowson ? The other judges concurred; and the Court certified that the presentation was not void, it not appearing to them to have been made upon a simoniacal contract. 70. It was formerly doubted whether it was 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 this doubt, the statute 12 Ann. 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, 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, &c., 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, &c. for that time or turn only. And the person so corruptly taking, procuring, or accepting such benefice, &c. shall, from thenceforth, be adjudged a disabled person to have and enjoy the same, and shall be subject to any pu nishment, pain, or penalty prescribed or inflicted by the laws ecclesiastical, in like manner as if such agreement had been made after such benefice, &c. had become vacant." 71. It has been doubted whether the purchase of an advowson in fee by a clergyman, and a presentation 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 Cases and Opias prohibited by that statute; and that a presentation nions, 409 by a trustee of such a purchaser, of the purchaser himself, might be made. This opinion is supported by Lord Chief Justice De Gray's argument in the Ante, § 69. case of Barret v. Glubb, in which he distinguished between a purchase of 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 |