in cafe of fuch forfeitures by particular tenants, all legal eftates by them before created, as if tenant for twenty years grants a leafe for fifteen, and all charges by him lawfully made on the lands, fhall be good and available in law . For the law will not hurt an innocent leffee for the fault of his leffor; nor permit the leffor, after he has granted a good and lawful eftate, by his own act to avoid it, and defeat the intereft which he himself has created. EQUIVALENT, both in it's nature and it's confequences, to an illegal alienation by the particular tenant, is the civil crime of difclaimer; as where a tenant, who holds of any lord, neglects to render him the due fervices, and, upon an action brought to recover them, difclaims to hold of his lord. Which disclaimer of tenure in any court of record is a forfeiture of the lands to the lord, upon reafons most apparently feodal. And so likewife, if in any court of record the [276] particular tenant does any act which amounts to a virtual disclaimer; if he claims any greater eftate than was granted him at the first infeodation, or takes upon himfelf thofe rights which belong only to tenants of a fuperior clafs; if he affirms the reversion to be in a stranger, by accepting his fine, attorning as his tenant, collufive pleading, and the like; fuch behaviour amounts to a forfeiture of his particular estate. III. LAPSE is a fpecies of forfeiture, whereby the right of presentation to a church accrues to the ordinary by negle& of the patron to prefent, to the metropolitan by neglect of the ordinary, and to the king by neglect of the metropolitan. For it being for the intereft of religion, and the good of the public, that the church fhould be provided with an officiating minifter, the law has therefore given this right of lapfe, in order to quicken the patron; who might otherwife, by fuffering the church to remain vacant, avoid paying his ecclefiaftical dues, and fruftrate the pious intentions of his ancef y Co. Litt. 233 z Finch. $70,271, 2 Co. Litt. 252. b Itid. 253. tors. [ 277 ] tors. This right of lapse was first established about the time (though not by the authority) of the council of Lateran', which was in the reign of our Henry the fecond, when the bishops firft began to exercife univerfally the right of inftitu-tion to churches. And therefore, where there is no right of inftitution, there is no right of lapfe: so that no donative can lapfe to the ordinary, unless it hath been augmented by the queen's bounty. But no right of lapfe can accrue, when the original prefentation is in the crown (3). THE term, in which the title to prefent by lapfe accrues from the one to the other fucceffively, is fix calendar months1; (following in this cafe the computation of the church, and not the ufual one of the common law) and this exclusive of the day of the avoidance *. But, if the bishop be both patron and ordinary, he fhall not have a double time allowed him to collate in; for the forfeiture accrues by law, whenever the negligence has continued fix months in the fame perfon. And alfo if the bishop doth not collate his own clerk immediately to the living, and the patron presents, though after the fix months are lapfed, yet his prefentation is good, and the bishop is bound to institute the patron's clerk ". For as the law only gives the bifhop this title by lapse, to punish the patron's negligence, there is no reason that, if the bishop himself be guilty of equal or greater negligence, the patron fhould be deprived of his turn. If the bishop fuffer the prefentation to lapfe to the metropolitan, the patron also has the fame advantage if he prefents before the archbishop has filled (3) If a right of lapfe accrues to the bishop and he dies, or is tranflated before he avails himself of it, the right of prefentation to the lapfed benence does not pass to the king, like the vacant patronage of the fee, but to the guardian of the fpiritualities. Gibf. 770. up the benefice; and that for the fame reafon. Yet the ordinary cannot, after lapfe to the metropolitan, collate his own clerk to the prejudice of the arch-bishop ". For he had no permanent right and intereft in the advowfon, as the patron hath, but merely a temporary one; which having neglected to make ufe of during the time, he cannot afterwards retrieve it. But if the prefentation lapses to the king, prerogative here intervenes and makes a difference; and the patron fhall never recover his right till the king has fatisfied his turn by prefentation: for nullum tempus occurrit regi?. And therefore it may feem, as if the church might continue void for ever, unless the king fhall be pleafed to present; and a patron thereby be abfolutely defeated of his advowfon. But to prevent this inconvenience, the law has lodged a power in the patron's hands, of as it were compelling the king to prefent. For if, during the delay of the crown, the patron himself presents, and his clerk is inftituted, the king indeed by presenting another may turn out the patron's clerk; or, after induction, may remove him by quare impedit: but if he does not, and the patron's clerk dies incumbent, or is canonically deprived, the king hath loft his right, which was only to the next or first presentation P. IN cafe the benefice becomes void by death, or ceffion [ 278 1 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 cafe of a vacancy by refignation, or canonical deprivation, or if a clerk presented be refused for infufficiency, these 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 lapfe (4). Neither fhall any lapfe thereby accrue to the metropolitan or to the king; for it is univerfally true, that neither the arch-bishop or the king fhall ever prefent by lapfe, but where the immediate ordinary might have collated by lapfe, within the fix months, and hath exceeded his time: for the firft ftep 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 ftiled a disturber by the law, and fhall not have any title to prefent by lapfe; for no man shall take advantage of his own wrong. Alfo if the right of presentation be litigious or contefted, and an action be brought against the bifhop to try the title, no lapfe shall incur till the queftion of right be decided'. IV. By fimony, the right of prefentation to a living is forfeited and vefted pro hac vice in the crown. Simony is the corrupt presentation of any one to an ecclefiaftical benefice for money, gift, or reward. It is fo called from the refemblance it is faid to bear to the fin of Simon Magus, though the purchafing of holy orders feems to approach nearer to his offence. It was by the canon law a very grievous crime and is fo much the more odious, because, as fir Edward Coke obferves", it is ever accompanied with perjury; for the prefentee is fworn to have committed no fimony. However it was not an offence punishable in a criminal way [279] at the common law "; it being thought fufficient to leave the clerk to ecclefiaftical cenfures. But as thefe 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 reftrain it by means of civil forfeitures; which the modern prevailing ufage, with regard to fpiritual preferments, calls aloud to be put in execution. I shall briefly confider them in this place, because they deveft the corrupt patron of the right of prefentation, and veft a new right in the crown. By the ftatute 31 Eliz. c. 6. it is for avoiding of fimony enacted, that if any patron for any corrupt confideration, by gift Co. Litt. 344, 345. s 2 Roll. Abr. 369. Co. Litt 344. uz Init. 156. or or promise (5), directly or indirectly, fhall prefent or collate any person to an ecclefiaftical benefice or dignity; fuch prefentation shall be void, and the presentee be rendered incapable of ever enjoying the fame benefice: and the crown shall present to it for that turn only *. But if the prefentee dies, without being convicted of such simony in his life-time, it is enacted by ftat. i W. & M. c. 16. that the fimoniacal contract shall not prejudice any other innocent patron, on pretence of lapfe to the crown or otherwise. Also by the statute 12 Ann. ftat. 2. c. 12. if any perfon for money or profit shall procure, in his own name or the name of any other, the next presentation to any living ecclefiaftical, and fhall be prefented thereupon, this is declared to be a fimoniacal contract; and the party is subjected to all the ecclefiaftical penalties of fimony, is difabled from holding the benefice, and the prefentation devolves to the crown. UPON these statutes many queftions have arifen, with regard to what is, and what is not fimony. And, among others, these points feem to be clearly fettled: 1. That to purchase a presentation, the living being actually vacant, is open and notorious fimony; this being exprefsly in the face of the statute (6). 2. That for a clerk to bargain for the next presentation, the incumbent being fick and about to die, was fimony, even before the ftatute of queen Anne (7): and * For other penalties inflicted by this ftatute, fee book IV. ch. 4. Z y Cro. Eliz. 788. Moor. 914. (5) The words of the statute are "for any fum of money, re"ward, gift, profit, or benefit; or for any promife, agreement, ་་ grant, bond, covenant of or for any fum of money, reward, 'gift, profit, or benefit." (6) Lord Hardwicke was of opinion, that the fale of an advowson during a vacancy, is not within the statute of fimony, as the fale of the next prefentation is; but it is void by the common law. Amb. 268. See p. 22. ante, n. I. (7) It has been determined, that the purchase of an advowfon in fee, when the incumbent was upon his death-bed, without any privity of the clerk who was afterwards prefented, was not fimoniacal, and would not vacate the next presentation. 2 Bl. Rep. 1952. now, |