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In case the benefice becomes void by death, or ceffion through plurality of benefices, there the patron is bound to take notice of the vacancy at his own peril; for these are matters of equal notoriety to the patron and ordinary: but in case of a vacancy by resignation, or canonical deprivation, or if a clerk presented be retufed for insufficiency, there being matters of which the bishop alone is prefumed to be cognizant, here the law requires him to give notice thereof to the patron, otherwise he can take no advantage by way of lapseo, Neither shall any lapfe thereby accrue to the metropolitan or to the king; for it is universally true, that neither the archbishop or the king fhall ever present by lapse, but where the immediate ordinary might have collated by. lapse, within the six months, and hath exceeded his time : for the first step or beginning faileth, et quod non habet principium, non habet finem", If the bishop refuse or neglect to examine and admit the patron's clerk, without good reafon affigned or notice given, he is stiled a disturber by the law, and shall not have any title to prefent by lapfe; for no man shall take advantage of his own wrongs. Also if the right of presentation be litigious or contested, and an action be brought against the bishop to try the title, no lapse shall incur till the question of right be decided,
IV. By frmony, the right of presentation to a living is forfeited, and vested pro hac vice in the crown. Simony is the corrupt presentation of any one to an ecclesiastical benefice for money, gift, or reward. It is so called from the refemblance it is said to bear to the fin of Simon Magus, though the purchasing of holy orders seems to approach nearer to his offence. It was by the canon law a very grievous crime: and is so much the more odious, because, as fir Edward Coke observes “, it is ever accompanied with perjury; for the presentee is sworn to have committed no simony. However it was not an offence punishable in a criminal way
9 4 Rep. 75. 2 Inft. 632, I Co. Litt. 344, 345.
2 Roll, Abr, 369,
+ Co. Litt. 344.
at the common laww; it being thought fufficient to leave the clerk to ecclesiastical censures. But as these did not affect the fimoniacal patron, nor were efficacious enough to repel the notorious practice of the thing, divers acts of parliament have been made to restrain it by means of civil forfeitures; which the modern prevailing usage, with regard to spiritual preferments, calls aloud to be put in execution. I shall briefly consider them in this place, because they divest the corrupt patron of the right of presentation, and vest a new right in the crown,
By the fatute 31 Eliz. c. 6. it is for avoiding of fimony enacted, that if any patron for any corrupt consideration, by gift or promise, directly or indirectly, shall present or collate any person to an ecclefiaftical benefice or dignity ; such presentation shall be void, and the presentee be rendered incapable of ever enjoying the same benefice: and the crown shall present to it for that turn only x. Also by the statute 12 Ann. stat. 2. c. 12. if any person for money or profit shall procure, in his own naine or the name of any other, the next presentation to any living ecclefiaftical, and shall be presented thereupon, this is declared to be a simoniacal contract; and the party is fubjected to all the ecclesiastical penalties of fimony, is disabled from holding the benefice, and the presentation devolves to the crown.
UPON these ffatutes many questions have arisen, with regard to what is, and what is not fimony. And, among others, these points seem to be clearly settled: 1. That to purchase a presentation, the living being actually vacant, is open and notorious fimony'; this being expressly in the face of the statute. 2. That for a clerk to bargain for the next presentation, the incumbent being sick and about to die, was simony, even before the statute of queen Annez : and now, by that statute, to purchase, either in his own name cr another's, the next presentation, and be thereupon presented 'W Moor. 564 ;
y Cro. Eliz. 788, Moor. 914. . x For other penalties inficted by this 2 Hob. 165. Statute, see book IV. ch. 4.
at any future time to the living, is direct and palpable fimony, But, 3. It is held that for a father to purchase such a presentation, in order to provide for his fon, is not simony: for the son is not concerned in the bargain, and the father is by nature bound to make a provision for him a. 4. That if a simoniacal contract be made with the patron, the clerk not being privy thereto, the presentation for that turn shall indeed devolve to the crown, as a punishment of the guilty patron; but the clerk, who is innocent, does not incur any disability or forfeiture b. 5. That bonds given to pay money to charitable ufes, on receiving a presentation to a living, are not fimoniacal", provided the patron or his relations be not benefited thereby d; for this is no corrupt consideration, moving to the patron. 6. That bonds of resignation, in case of non-residence or taking any other living, are not fimoniacale; there being no corrupt consideration herein, but such only as is for the good of the public. So also bonds to resign, when the patron's son comes to canonical age, are. legal; upon the reason before given, that the father is bound to provide for his son f. 7. Lastly, general bonds to resign at the patron's request are held to be legal 8 : for they may possibly be given for one of the legal considerations beforementioned; and where there is a possibility that a transaction may be fair, the law will not suppose it iniquitous without proof. But, if the party can prove the contract to have been a corrupt one, such proof will be admitted, in order to shew the bond simoniacal, and therefore void. Neither will the patron be suffered to make an ill use of such a general bond of resignation; as by extorting a composition for tithes, procuring an annuity for his relation, or by demanding a refignation wantonly or without good cause, such as is approved by the law; as, for the benefit of his own son, or on account of non-residence, plurality of livings, or gross immorality in the incumbent ".
a Cro. Eliz. 686. Moor. 916. f Cro. Jac. 248. 274.
\ ; Vern. 411. 1 Equ. Cafo abr, d Stra. 534.
86, 87. Stra, 534 & Cro. Car, 280.
V. The next kind of forfeitures are those by breach or non-performance of a condition annexed to the estate, either expressly by deed at it's original creation, or impliedly by law from a principle of natural reason. Both which we con.' fidered at large in a former chapter i.
VI. I THEREFORE now proceed to another species of forfeiture, viz. by waste. Waste, vastum, is a spoil or destruction in houses, gardens, trees, or other corporeal hereditaments, to the disherison of him that hath the remainder or reversion in fee-simple or fee-tail k.
- Waste is either voluntary, which is a crime of commiffion, as by pulling down a house; or it is permisive, which is a matter of omission only, as by suffering it to fall for want of necessary reparations. Whatever does a lasting dan mage to the freehold or inheritance is waste!. Therefore removing wainscot, floors, or other things once fixed to the freehold of a house, is wastem. If a house be destroyed by tempeft, lightening, or the like, which is the act of providence, it is no waste : but otherwise, if the house be burnt by the carelessness or negligence of the lessee; though now by the statute 6 Ann. c. 31. no action will lie against a tenant for an accident of this kind. Waste may also be committed in ponds, dove-houses, warrens, and the like; by so reducing the number of the creatures therein, that there will not be sufficient for the reversioner when he comes to the inheritance". Timber also is part of the inheritance". Such are oak, ash, and elm in all places : and in some particular countries, by local custom, where other trees are generally used for building, they are thereupon considered as timber ; and to cut down such trees, or top them, or do any other act whereby the timber may decay, is waste P. But underwood the tenant may cut down at any seasonable time
i See chap. 10. pag. 152.
a Co. Litt. 53.
Co. Litt. 53.
that he pleases 9; and may take sufficient estovers of common right for house-bote and cart-bote ; unless restrained (which is ufual) by particular covenants or exceptions". The conversion of land from one species to another is waste. To convert wood, meadow, or pasture, into árable ; to turn arable, meadow, or pafture, into woodland; or to turn arable or woodland into meadow or pafture; are all of them wastes. For, as fir Edward Coke observes, it not only changes the course of husbandry, but the evidence of the estate ; when such a close, which is conveyed and described as pasture, is found to be arable, and e converso. And the same rule is observed, for the same reafon, with regard to converting one species of edifice into another, even though it is improved in it's value". To open the land to search for mines of metal, coal, &c, is waste; for that is a detriment to the inheritance': but, if the pits or mines were open before, it is no waste for the tenant to continue digging them for his own use"; for it is now become the mere annual přofit of the land. These three are the general heads of waste, viz. in houses, in timber, and in land. Though, as was before said, whatever else tends to the destruction, or depreciating the value, of the inheritance, is considered by the law as waste.
Let us next see, who are liable to be punished for committing waste. And by the feodal law, feuds being originally granted for life only, we find that the rule was general for all vafals or feudatories; “ si vasallus feudum dispaverit, " aut infigni detrimento deterius fecerit, privabitur *.” But in our antient common law the rule was by no means so large : for not only he that was seised of an estate of inheritance might do as he pleased with it, but also waste was not punishable in any tenant, save only in three persons; guardian in chivalry, tenant in dower, and tenant by the cur
9 2 Roll. Abr. 817.
u i Lev. 309.