Sivut kuvina

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 resemblance it is said to bear to the sin 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 sir 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 at the common law; it being thought sufficient to leave the clerk to ecclesiastical censures. But as these did not affect [279] the simoniacal 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 devest the corrupt patron of the right of presentation, and vest a new right in the crown.



By the statute 31 Eliz. c. 6. it is for avoiding of simony enacted, that if any patron for any corrupt con、 sideration, by gift or promise, directly or indirectly, shall present or collate any person to an ecclesiastical 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. But if the presentee dies, without being convicted of such simony in his lifetime, it is enacted by stat. 1 W. &. M. c. 16. that the simoniacal contract shall not prejudice any other innocent patron,

u 3 Inst. 156.

w Moor. 564.

x For other penalties inflicted by this statute, see book IV. ch. 4. 8 Previously spelt, "divest."

on pretence of lapse to the crown or otherwise. Also by the statute 12 Ann. stat. 2. c. 12. if any person for money or profit shall procure, in his own name or the name of any other, the next presentation to any living ecclesiastical, and shall be presented thereupon, this is declared to be a simoniacal contract; and the party is subjected to all the ecclesiastical penalties of simony, is disabled from holding the benefice, and the presentation devolves to the crown.

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Upon these statutes many questions have arisen, with regard to what is, and what is not simony. 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 simony; 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 Anne: and now, by that statute, to purchase, either in his own name or another's, the next presentation, and be thereupon presented [280] at any future time to the living, is direct and papable simony. But, 3. It is held that for a father to purchase such a presentation, in order to provide for his son, 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. 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. 5. That bonds given to pay money to charitable uses, on receiving a presentation to a living, are not simoniacal, provided the patron or his relations be not benefited thereby; for this y Cro. Eliz. 788. Moor. 914.

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c Noy. 142.

d Stra. 534.


4 Previously, "st."

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 simoniacal; 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. 7. Lastly, general bonds to resign at the patron's request are held to be legal: for they may possibly be given for one of the legal considerations before-mentioned; 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 resignation 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.b

[281] 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 considered 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

e Cro. Car. 180.

f Cro. Jac. 248. 274.

g Cro. Car. 180. Stra. 227.

h 1 Vern. 411. 1 Equ. Cas. Abr. 86, 87. Stra. 534.

1 See chap. 10. pag. 152.

hereditaments, to the disherison of him that hath the remainder or reversion in fee-simple or fee-tail.**

Waste is either voluntary, which is a crime of commission, as by pulling down a house; or it is permissive, which is a matter of omission only, as by suffering it to fall for want of necessary reparations. Whatever does a lasting damage to the freehold or inheritance is waste. Therefore removing wainscot, floors, or other things once fixed to the freehold of a house, is waste."+ If a house be destroyed by tempest, lightning, 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. 231.2 no action will lie against a tenant for an accident of this kind.2 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 for that reason considered as timber; and to cut down such trees, or top them, or do any other act whereby the timber may decay, is waste. But underwood the tenant may cut down at any seasonable time [282] that he pleases; and may take sufficient estovers of common right for house-bote and cart-bote; unless

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0 4 Rep. 62.

p Co. Litt. 53.

q 2 Roll. Abr. 817.
2 First edition "3."

2 First edition has here, ", lest misfortune be added to misfor tune."

8 Previously, "thereupon."

**Quoted, 6 Fla. 480; 1 Busb. 93; 92 N. C. 570; 3 N. H. 108; 13 Or. 6; 57 Am. Rep. 3.

t-t Quoted, 3 Wend. 342. Cited, 14 Me. 43.

✰ Cited, 4 Har. & J. 391; 7 Am. Dec. 676.

2 BLACKST.-38.


restrained (which is usual) by particular covenants or exceptions. The conversion of land from one species to another is waste. To convert wood, meadow, or pasture, into arable; to turn arable, meadow, or pasture, into woodland; or to turn arable or woodland into meadow or pasture; are all of them waste. For, as sir 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 reason, 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, etc, 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; become the mere annual profit of the land. are the general heads of waste, viz. in houses, in timber, and in land. Though, as was before said, whatever Pelse 5 tends to the destruction, or depreciating the value of the inheritance, is considered by the law as waste.f

for it is now These three

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 vassals or feudatories; "si vasallus feudum dissipaverit, aut insigni 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

r Co. Litt. 41.

s Hob. 236.


1 Inst. 53.

u 1 Lev. 309.

v 5 Rep. 12.

w Hob. 295.

x Wright. 44.
*Cited, 36 Ga. 104.

+ Cited, 58 N. H. 304; 92 N. C. 570; 23 Wend. 508; "may be com. mitted by alteration as well as by destruction of any part of a tenement," 13 Or. 6; 53 Wis. 60.

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