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bond be given for the full value of the office, and let it be agreed between them, that the officer shall refuse to surrender upon request, and then the grantor will recover on the bond, and so have the full value of the office.

A. by the interest which he had with the commissioners of exciseh, procured for B., his brother, a supervisor's place in that office, and, in consideration thereof, B. gave a bond for the payment of 101. per annum to A., by half-yearly payments, as long as B. should continue in the office. B. died, having for some years omitted the payment of this annual sum of 10l. whereupon A. brought an action on the bond against the widow and executrix of B., who pleaded a sham plea of payment, and brought a bill in equity to be relieved against the bond. For the defendant it was objected, that the bond was admitted to be good at law, by the plaintiff's not having been advised to plead the statute of 5 and 6 Edw. 6. against the sale of offices; neither truly in this case could the stat. have been pleaded, being made long before the excise became a branch of the revenue; that the law being with the defendant, it would be hard to take the benefit thereof from him, especially when he was not plaintiff in equity, did not pray any aid of that court, and had not been guilty of any fraud. But by Lord Talbot, Ch. Bonds of this nature are highly to be discouraged; merit, industry, and fidelity, ought to recommend persons to these places, and not interest with the commissioners, who, it is to be presumed, had they known from what motive the plaintiff at law applied to them on behalf of his brother, would have rejected him. The officers giving money to a friend of the commissioners, for his interest, is altogether as bad as giving money, or a bond for money, to the commissioners themselves, which undoubtedly would have been relieved against. It is a fraud on the public, and would open a door for the sale of offices relating to the revenue. The taking away from the officer, what the commissioners and the treasury think to be but a reasonable reward for his care and trouble, and an encouragement to his fidelity, must needs be of the most pernicious consequence,

and induce him to make it up by some unlawful means, such as corruption and extortion; and though the excise was no part of the revenue at the time of making the statute of 5 and 6 Edw. 6., yet there may be good ground to construe it within the (16) reason and mischief of the law, which is rather remedial than penal. h Law v.

Law, 3 P. Wms. 391, and Ca. Temp. Talb. 140.

(16) It is no new thing, but usual, that an interest raised by a Simony.-Simony is the corrupt presentation of a person to an ecclesiastical benefice for money, &c. Every contract made for or about any matter or thing, which is prohibited and made unlawful by any statute ', is a void contract, although the statute itself doth not mention that it shall be so, but only inflicts a penalty on the offender; because a penalty implies a prohibition, though there are not any prohibitory words in the statute. Hence, in the case of simony, although the statute (31 Eliz. c. 6.) only inflicts a penalty by way of forfeiture, and does not mention any avoiding of the simoniacal contract, yet it has been always holden, that such contracts, being against law, are void.

For the better understanding the nature of simoniacal contracts, it will be proper to set forth the legislative provisions against simony. By stat. 31 Eliz. c. 6, for the avoiding si. mony and corruption in presentations, collations, and donations, of and to benefices, dignities, prebends, and other livings and promotions ecclesiastical, and in admissions, institutions, and inductions to the same, it is enacted, that “ if

i 31 Eliz. c. 6. 12 Ann. stat. 2. c. 12. Per Holt, C. J. in Bartlett v. Vinor,

Carth. 252.

subsequent statute, should be under the same remedy and advantage as an interest existing before. Thus, at common law, no acceptance of a collateral recompense could bar a wife of her dower ; but the stat. of 27 H. 8. made a jointure to be a bar, which at that time extended only to a jointure made by act executed in the husband's life-time. Afterwards the 32 of H. 8, enabled a man to devise his lands, when it was holden, that if a man were to devise lands to his wife in satisfaction of her dower, and she should accept them, this would be a bar within stat. 27 H. 8. 4 Rep. 4. a. b. because it is within the same equity and reason, and the diversity is in the manner only, not in the thing. So exchequer bills, though created and made valuable by a statute subsequent to that of 12 Car. 2. c. 30, for erecting the post-office, yet are portable within the intent of the said act of 12 Car. 2. and on a letter in which such bills were inclosed being lost out of the office, the postmasters, were holden chargeable. From the Lord C. Justice Holt's argument in the case of Lane v. Cotton and Frankland, in the reporter's (P. Wms.) MSS. See also Salk. 17. And it is observable, that though the other three judges of B. R. differing in opinion with the Chief Justice, judgment was given in that case for the defendants ; yet on a writ of error being brought in the Exchequer Chamber, the defendants are said to have made satisfaction to the plaintiff, which put an end to all further proceedings.

any person or persons! (17), or bodies corporate, shall, for money, reward, gift, profit, or benefit, directly, or indirectly, or for or by reason of any promise, agreement, grant, bond covenant, or other assurance of or for any money, &c. directly or indirectly, present or collate any person to any benefice, with cure of souls, dignity, prebend, or living ecclesiastical, or bestow the same for any such corrupt consideration, every such presentation, &c. and every admission, institution, investiture, and induction, thereupon, shall be void ; and it shall be lawful for the crown (18) to present, &c. to such benefice, &c. for that one turn only, and every person, &c. that shall give or take such money, &c. or take or make any such promise, &c. or other assurance, shall forfeit double the value of one year's profit of such benefice, &c. and the person so corruptly taking, &c. such benefice, &c. shall thenceforth be adjudged a disabled person to have the same.” (19.) “ If any person shall for money m, &c. (other than for lawful fees) or for any promise, &c. or other assurance for money, &c. directly or indirectly admit, institute, instal, induct, invest, or place any person in any benefice, with cure of souls, dignity, prebend, or other living ecclesiastical, every such offender shall forfeit double the value of one year's profit of such benefice, &c. and the same benefice, &c. shall be void, and the patron, &c. shall present or collate unto the same, as if the party so admitted, &c. were dead. The 7th section provides, that no title to confer or present by lapse, shall accrue upon any voidance mentioned in this act, but after six months next after notice given of such voidance, by the ordinary to the patron. By the 8th section, “ If any incumbent of any benefice, with cure of souls, shall corruptly resign or exchange the same, or corruptly take, for the resigning or exchanging the same, directly or indirectly, any pension, money, or benefit, as well the giver as the taker thereof shall lose double the value of the sum so given, the one moiety as well thereof as of the forfeiture of double value

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(17) Usurpers, as well as persons having title to present or collate, are within this statute. 1 Inst. 120. a. 3 Inst. 153.

(18) If the corrupt presentation or collation is by an usurper, then the king shall not present, but the right patron. 3 Inst. 153, 154. i Inst. 120 a.

(19) Where the presentee is not privy to the corrupt contract, he shall not be adjudged a disabled person. 3 Inst. 154.

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VOL. I.

of one year's profit to be to the crown; and the other to him that will sue for the same, by action of debt, bill, or information, in

any

of the king's courts of record.” The next statute relating to this subject is the 12 Ann. stat. 2. c. 12, by the second section of which it is enacted, that “if any person shall, for money or profit, or for any promise, agreement, &c. or other assurance for money, &c. directly or indirectly, in his own name, or the name of any other person, procure the next presentation to any ecclesiastical living, and shall be presented or collated thereupon, every such presentation and admission, &c. shall be void, and such agreement shall be deemed a simoniacal contract: and it shall be lawful for the crown to present for that turn only; and the person so corruptly accepting such living, shall thenceforth be disabled to enjoy the same."

Bond for payment of annuity in consideration of a resignation of living is simony, and void by stat. 31 Eliz. c. 6.

The statutes against simony apply to the presentation corruptly procured or intended to be procured; this presentation is forfeited to the crown, and certain penalties and disabilities are inflicted on the offenders: the statutes contain no express provision for avoiding simoniacal conveyances ; but there can be no doubt that the conveyance even of an advowson in fee, which in itself is legal, if it be made for the purpose of carrying a simoniacal contract into execution, is void, as to so much as goes to effect that purpose; and if the sound part cannot be separated from the corrupt, is void altogether. But if the sound can be fairly separated from the objectionable part, it will be good, although by the contract one entire consideration was paid for the whole advowson. 5 Taunt. 746.

If the patron takes of the clerk a bond conditioned for the performance of a legal act, as to pay a sum of money, to the son of the last incumbent for a certain time °; to resign when the patron's nephew attains his full age P; to resign on three months' notice to be given by the patron, in order that the patron's son may be presented, and to keep the buildings on the living in repair ?; to reside on the living, or to resign, in case of not returning after notice, and also not to commit waste, &c. on the parsonage house"; such bond is good, and cannot be avoided on the ground of simony. But general

n Yonge Cik. v. Jones, B. R. E. 22 p Per Lord Macclesfield in Peel v. G. 3. B. P. B. 190. Dampier MSS. Capel, Str. 534. I. L.

9 4 T. R. 359. o Baker v. Mounford, Noy, 142. r Ib. 78. Bagshaw v. Bossley.

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resignation bonds, or bonds conditioned to resign at the request of the patron, without expressing the object for which such resignation is intended, are illegal and voids. A special bond for resigning a living in favour of one of two brothers of the patron, was holden to be void, for the first time in the House of Lords t. The legislature, however, considering that persons who had been parties to such engagements would suffer great hardship, unless they were relieved from the penalties to which they had erroneously, but not wilfully, rendered themselves liable, by stat. 7 & 8 Geo. 4. c. 25. enacted, that no presentation to any spiritual office made before the 9th April, 1827, should be void on account of any agreement to resign, when a person or one of two persons specially named became qualified to take the same. And by a subsequent act, 9 Geo. 4. c. 94. engagements entered into after the 28th of July, 1828, for the resignation of any spiritual office, being a benefice with cure of souls, dignity, prebend, or living ecclesiastical, to the intent, to be manifested in such engagement, that any one or two persons specially named, being either by blood or marriage an uncle, son, grandson, brother, nephew, or grand-nephew, of patron, as mentioned in the 21 section, shall be presented, are good in law, and the performance of the same may also be enforced in equity.

If a perpetual advowson be sold, when the church is void, the next presentation will not pass; and if the next avoidance only be sold after the death of the incumbent, the sale is altogether void u. But the purchase of an advowson in fee, where no privity of the clerk intended to be presented appears, has been holden not to be simoniacal; although the incumbent was in extremis at the time when the purchase was made * So the purchase of a next presentation ; although the incumbent was in extremis, within the knowledge of both contracting parties, but without the privity of, or a view to the nomination of the particular clerk, who was afterwards presented, is not voidy, on the ground of simony.

Usury.To debt upon bond the defendant may plead that the bond was given upon an usurious contract. The statute against usury cannot be given in evidence on the general issue, but must be pleadedź: for although it may appear to be usury on the condition, yet plaintiff may rectify it

s Bishop of London v. Ffytche, D. P. u See 6 Bingh. 17.

30th May, 1783. Cunningham, x Barret v. Glubb, 2 Bl. R. 1052. Law of Simony, 2 Bro. P. C. 211. y Fox v. Bishop of Chester, D. P. in tvo. edit. by Tomlins. S. C.

error, 6 Bingh. I. t D. P. 9 April, 1827, Fletcher v. Ld. z Per Cur. Hob. 72. 5 Rep. 119. a. Sondes.

Geang v. Swaine, 1 Lutw. 466.

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