Sivut kuvina

[276] wise, if in any court of record the particular tenant does any

act which amounts to a virtual disclaimer; if he claims any greater estate than was granted him at the first infeodation, or takes upon himself those rights which belong only to tenants of a superior class ;a if he affirms the reversion to be in a stranger, by accepting his fine, attorning as his tenant, collusive pleading, and the like ;b such behavior amounts to a forfeiture of his particular estate."

vacant church.

III. Forfeit.

III. Lapse is a species of forfeiture, whereby the right of ure or lapse on neglect to presentation to a church accrues to the ordinary by neglect of present to a the patron to present, to the metropolitan by neglect of the or

dinary, and to the king by neglect of the metropolitan. For, , it being for the interest of religion and the good of the public that the church should be provided with an officiating minister, the law has, therefore, given this right of lapse, in order to quicken the patron, who might otherwise, by suffering the church to remain vacant, avoid paying his ecclesiastical dues, and frustrate the pious intentions of his ancestors. This right of lapse was first established about the time (though not by the authority) of the Council of Lateran,d which was in the reign of our Henry the Second, when the bishops first began to exercise universally the right of institution to churches. And, therefore, where there is no right of institution, there is no right of lapse ; so that no donative can lapse to the ordinary unless it hath been augmented by the queen's bounty. But no right of lapse can accrue when the original presenta

tion is in the crown.h20 Lapse, after

The term, in which the title to present by lapse accrues from the one to the other successively, is six calendar monthsi (following in this case the computation of the church, and not

six months' default.

a Co. Litt., 251.
b Ibid., 252.
c 2 Roll. Abr., 363, pl. 10.
d Bracton, 1. 4, tr. 2, c. 3.
* See page 23.

f Bro. Abr., tit. Quar. Imped. Cro. Jac., 518.

& Stat. 1 Geo. I., st. 2, c. 10.

h Stat. 17 Edw. II., c. 8. 2 Inst., 273.

i 6 Rep., 62. Registr., 42.

(19) If a tenant sets up a title hostile landlord may treat him as a trespasser. to his landlord, it is a forfeiture of his (Buller's N. P., 96 ; Cowp., 622; 2 Sch. term; and it is the same if he assists & Lefr., 73, 434.) another person to set up such a claim. As to the disclaimer of a grant or de (1 C., M. & R., 141. See 1 Per. & D., vise, see p. 309. 636.) A parol disclaimer by tenant for years is no forfeiture. (2 Per. & D., (20) If a right of lapse accrues to the 396.) If a tenant set his landlord at de- bishop, and he dies, or is translated be fiance, and do any act disclaiming to fore he avails himself of it, the right of hold of him as tenant, as, for instance, presentation to the lapsed benefice does if he attorn to some other person, no no- not pass to the king, like the vacant pattice to quit will be necessary; for, in ronage of the fee, but to the guardian such case, although the wrongful opera- of the spiritualities. (Gibson, 770.)tion of an attornment has been taken (CHRISTIAN.) away (11 Geo. II., c. 19, s. 11), the

the usual one of the common law), and this exclusive of the day of the avoidance." But, if the bishop be both patron and ordinary, he shall not have a double time to collate in ;' for the [277 ] forfeiture accrues by law whenever the negligence has continued six months in the same person. And, also, if the bishop doth not collate his own clerk immediately to the living, and the patron presents, though after the six months are lapsed, yet his presentation is good, and the bishop is bound to institute the patron's clerk.m For, as the law only gives the bishop 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 should be deprived of his turn. If the bishop suffer the presentation to lapse to the metropolitan, the patron also has the same advantage if he presents before the archbishop has filled up the benefice; and that for the same reason. Yet the ordinary can not, after lapse to the metropolitan, collate his own clerk to the prejudice of the archbishop.n For he had no permanent right and interest in the advowson, as the patron hath, but merely a temporary one; which having neglected to make use of during the time, he can not afterward retrieve it. But if the presentation lapses to the king, No lapse prerogative here intervenes and makes a difference; and the patron shall never recover his right till the king has satisfied his turn by presentation ; for nullum tempus occurrit regi.o And, therefore, it may seem as if the church might continue void forever, unless the king shall be pleased to present, and a patron thereby be absolutely defeated of his advowson. But, to prevent this inconvenience, the law has lodged a power in the patron's hands of, as it were, compelling the king to present. For if, during the delay of the crown, the patron himself presents, and his clerk is instituted, 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 lost his right, which was only to the next or first presentation.P

In case the benefice becomes void by death, or cession [278] through plurality of benefices, there the patron is bound to take Patron notice of the vacancy at his own peril; for these are matters take notice of equal notoriety to the patron and ordinary: but in case of a of the vacanvacancy by resignation, or canonical deprivation, or if a clerk cucing most presented be refused for insufficiency, these being matters of which the bishop alone is presumed to be cognizant, here the


* 2 Inst., 361.
I Gibs., Cod., 769.
m 2 Inst., 273.

2 Roll. Abr., 368.
o Dr. & St., D. 2, c. 36. Cro. Car., 355.
p 7 Rep., 28. Cro. Eliz., 44.

(21) The passage referred to by the sition as to the exclusion of the day of commentator does not support this po- avoidance. (See 15 Ves., 255.)

law requires him to give notice thereof to the patron ; otherwise he can take no advantage by way of lapse.9" Neither shall any lapse thereby accrue to the metropolitan or to the king; for it is universally true that neither the archbishop nor the king shall 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 Disturbance bishop refuse or neglect to examine and admit the patron's by bishop.

clerk, without good reason assigned or notice given, he is styled a disturber by the law, and shall not have any title to present by lapse ; for no man shall take advantage of his own wrong. Also, if the right of presentation be litigious or contested, and an action he brought against the bishop to try the title, no lapse shall incur till the question of right be decided.tas

is so

IV. Forfeit.

IV. By simony, the right of presentation to a living is for. ure by sim. ony.

feited, 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 offense. It was by the canon law a very grievous crime; and

uch 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 offense punishable in a criminal way at the common law,w

it being thought sufficient to leave the clerk to ecclesiastical [279] censures. But as these did not affect 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 of 31 Eliz., c. 6, it is, for avoiding of simony, enacted, that if any patron, for any corrupt consideration, by 9 4 Rep., 75. 2 Inst., 632.

· Co. Litt., 344. r Co. Litt., 344, 345.

u 3 Inst., 156. * 2 Roll. Abr., 369.

Moor, 564.

31 Eliz., c. 6.


(22) See the cases collected, Mire- (23) So, pending a suit in Chancery house on Advowsons, 162. The 44 Geo. for the specific performance of an agreeIII., c. 43, enacts, that in case of avoid- ment for the sale of the next presentaance or deprivation on account of non- tion, the court will restrain the bishop age, &c., of incumbent, no title by lapse from taking advantage of a lapse. 9 shall accrue till after six months notice Sim., 326. See 2 Y. & C. N. C., thereof by ordinary to patron.-[Chit. 147.) TY.]

2, c. 12.

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, on pretense of lapse to the crown, or otherwise. Also, by the statute 12 12 Ann., st. 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.

Upon these statutes many questions have arisen with regard What conto 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;y 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 :220 and now, by that statute, to purchase, either in his own name or another's, the next presentation, and be thereupon presented at any future time to the liv. [280] ing, is direct and palpable simony. But, 3. It is held that for a father to purchase such a presentation, in order to provide

* For other penalties inflicted by this y Cro. Eliz., 788. Moor, 914. statute, see Book iv., ch. 4.

z Hob., 165.

stitutes sim ony.

(24) The words are, “Any person or the ground that, under the circumstanpersons;" therefore a presentation by a ces, the living was actually void as to stranger usurping the right would also the patron, though not so void as to inbe void ; but the rightful patron, and not cur a lapse before deprivation. (2 Nev. the crown, would then be entitled to & P., 492.) present. (Co. Litt., 120, a.)

(26) Where a contract was made for (25) Lord Hardwicke was of opinion the sale of a next presentation, the parthat the sale of an advowson during a ties at the time knowing the incumbent vacancy is not within the Statute of to be at the point of death, and expectSimony, as the sale of the next present- ing an immediate vacancy, the Court of ation is; but it is void by the common King's Bench held that the contract was law. (Amb., 268. See p. 22, ante, n. simoniacal, and the presentation, made 1.)—[Christian.). Void, that is, as to in pursuance of it by the purchaser, the next presentation, but good as to void ; although the clerk presented was the advowson itself. (2 Wils., 174; 5 not privy to the transaction, and the conTaunt., 724. See Cr. El., 811; 7 B. & tract was not entered into with a view Cr., 113.) It has been held that where to the presentation of any particular perthe Church was full, but the incumben- son. (2 B. & Cr., 635.) But this decy voidable at the election of the pa- cision was reversed in the House of tron, the sale of the advowson was good, Lords, in accordance with an earlier auand carried the right of immediate pre- thority. (3 Bligh, N. S., 123; 2 W. Bl., sentation. (6 Nev. & M., 686.) But 1052.) this decision was reversed in error, on

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.b 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;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 simoniacal ;e 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 ;g 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 a Cro. Eliz., 686. Moor, 916.

e Cro. Car., 180. 3 Inst., 154. Cro. Jac., 385.

Cro. Jac., 248, 274. • Noy, 142.

6 Cro. Car., 180. Stra., 227. • Stra., 534.


(27) In the great case of The Bishop ing that it should ever have been argued of London v. Ffytche, it was determined and decided that it was not a benefit withby the House of Lords, that a general in the meaning of the statute. Yet many bond of resignation is simoniacal and il- learned men are dissatisfied with this delegal. The circumstances of that case termination of the Lords, and are of opinwere briefly these: Mr. Ffytchę, the ion that their judgment would be differpatron, presented Mr. Eyre, his clerk, ent if the question were brought before to the Bishop of London for institution. them a second time. But it is generally The bishop refused to admit the pre- understood that the Lords, from a resentation, because Mr. Eyre had given gard to their dignity, and to preserve a a general bond of resignation ; upon this consistency in their judgments, will nevMr. Ffytche brought a quare impedit er permit a question which they have against the bishop, to which the bishop once decided to be again debated in pleaded that the presentation was sim- their house. (See 1 Bro., 286.) With oniacal and void, by reason of the bond respect to the influence which the judg. of resignation; and to this plea Mr. ments of the inferior courts ought to have Ffytche demurred. From a series of upon the House of Lords, the editor conjudicial decisions, the Court of Common ceives a distinction may be suggested Pleas thought themselves bound to de- between cases arising merely upon the termine in his favor, and that judgment common law and cases which depend was affirmed by the Court of King's upon the construction of a statute. A Bench; but these judgments were att- series of decisions in the courts are the erward reversed by the House of Lords. best evidence we can have of the comThe principal question was this, viz., mon law; and the Lords can not find whether such a bond was a reward, gift, any adequate authority to oppose to profit, or benefit to the patron, under these decisions, or which would justify the 31 Eliz., c. 6; if it were so, the stat- their reversal; but upon the construcute had declared the presentation to be tion of a statute, where we have no reasimoniacal and void. Such a bond is so son to suspect any variation from the origmanifestly intended by the parties to be inal, they seem as fully competent to de a benefit to the patron, that it is surpris- termine a question, after any number of

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