Page images

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

[blocks in formation]

(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. 1 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.

[blocks in formation]

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 9; 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 G. 3. B. P. B. 190. Dampier MSS. L. I. L.

o Baker v. Mounford, Noy, 142.

p Per Lord Macclesfield in Peel v. Capel, Str. 534.

q 4 T. R. 359.

r Ib. 78. Bagshaw v. Bossley.

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 2d 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". 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 void, 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 pleaded": for although it may appear to be usury on the condition, yet plaintiff may rectify it

s Bishop of London v. Ffytche, D. P. 30th May, 1783. Cunningham, Law of Simony, 2 Bro. P. C. 211. Evo. edit. by Tomlins. S. C.

t D. P. 9 April, 1827, Fletcher v. Ld. Sondes.

u See 6 Bingh. 17.

x Barret v. Glubb, 2 Bl. R. 1052.
y Fox v. Bishop of Chester, D. P. in
error, 6 Bingh. 1.

z Per Cur. Hob. 72. 5 Rep. 119. a.
Geang v. Swaine, 1 Lutw. 466.

by his replication. The provisions of the legislature relating to usury are as follow: by stat. 37 H. 8. c. 9, (by which all former statutes against usury are repealed,) s. 3, "no person by way of corrupt bargain, loan, &c. or other means, shall take for forbearance of 100l. or other thing due for wares, &c. for one whole year, above 10l. per centum, and so pro rata, &c." By stat. 13 Eliz. c. 8. (by which 5 and 6 Edw. 6. c. 20, for repeal of the stat. 37 H. 8. c. 9, is repealed, and consequently, stat. 37 H. 8. c. 9, is revived,) "all bonds, contracts, and assurances a, collateral, or other, to be made for payment of any principal, or money to be lent, or covenant to be performed upon, or for any usury in lending or doing any thing against the act 37 H. 8. c. 9, upon or by which loan, &c. there shall be reserved or taken above the rate of ten pounds for the hundred for one year, shall be utterly void." In stat. 21 Jac. c. 17. s. 2, this clause is repeated almost verbatim, but the rate of interest allowed to be taken is reduced to 87. in the hundred. The same clause is again repeated in stat. 12 Car. 2. c. 13. s. 2, where the rate of interest is reduced to 67. per centum. And, lastly, by stat. 12 Ann. st. 2. c. 16, (the principal statute on this subject,) all bonds, contracts, and assurances, for payment of any principal or money to be lent, or covenanted (20) to be performed upon or for any usury, whereupon or whereby there shall be reserved or taken above the rate of 51. in the hundred, shall be utterly void. Where the lender of stock reserved to himself the dividend by way of interest, and the option of deciding, at a future day, whether he would have the stock replaced, or the sum produced by the sale of it repaid to him in money, with five per cent. interest, it was holden, that this bargain was usurious. In pleading usury, it is not necessary to recite the statute; but, in framing the plea, care must be taken, 1st, that it should state, "that it was corruptly agreed, &c. :" 2ndly, that the usurious agreement be particularly set forth, and the quantum of interest agreed to be given; 3dly, that the same exactness be observed in stating the agreement, so that it may correspond with the evidence, as in other cases of

a 13 Eliz. c. 8. s. 3.

b White v. Wright, 3 B. and C. 273. c Bro. V. M. 255. cited in Com. Dig. (Pleader, 2 W. 23.)

d Nevison v. Whitley, Cro. Car. 501. e Hinton v. Roffee, 2 Show. 329.

(20) Should it not be printed "covenant?" See the stat. 13 Eliz. c. 8. The stat. 12 Ann. stat. 2. c. 16. is partially repealed by later statutes, 3 & 4 W. 4. c. 98., 5 & 6 W. 4. c. 41. as to bills, notes, and mortgages.

contract; for in a case where the agreement was for the forbearance of money until one or other of two days, and the plea, instead of stating it in the alternative, stated it as an absolute forbearance until one of those days, the variance was holden fatalf; 4thly, the plea must aver, that the agreement was to pay such a sum for giving day of payment; merely stating, that the sum agreed to be given, for giving day of payment, exceeded the rate of legal interest, is not suffi


It is to be observed, that although a security tainted with usury in its inception may be avoided, even in the hands of an innocent purchaser, for a valuable consideration without notice, yet a subsequent usurious contract will not avoid a security, which was good at the time when it was made (21). A substituted security, which has been given for a security contaminated by usury, is void, if such substituted security be given either to the party to the original contract, or to his personal representative. But, where the original usurious security has been transferred by the party to whom it was given to another person, ignorant of the usury, and such other person accepts from the original debtor another security, which renders the first security void, the second security is available in the hands of such innocent person. Hence where A. for an usurious consideration k gave his promissory note to B., who transferred it to C. for a valuable consideration without notice of the usury, and afterwards A. gave C. a bond for the amount, it was holden, that in an action brought by C. against A. on the bond, the bond could not be avoided on the ground of the usurious contract between A. and B. In an action of debt on a bond', to which usury was pleaded, it appeared that the plaintiff had lent the defendant 1000l. for the securing of which, with lawful interest, a bond was given, and the defendant also agreed to give the plaintiff a salary of so much a-year, as a clerk in his brewery. It was not intended that the plaintiff should perform any

f Tate v. Wellings, 3 T. R. 538.

g Swales v. Bateman, W. Jones, 409. h Ferrall v. Shaen, 1 Saund. 294.

i Admitted per Cur. in Cuthbert v.
Haley, 8 T. R. 392, 394.

k Cuthbert v. Haley, 8 T. R. 390.
1 Wright v. Wheeler, 1 Campb. 165 n.

(21) The same rule holds in the case of a bill of exchange; if good in its inception, usury in the intermediate indorsements will not avoid it in the hands of a bond fide holder. Parr v. Eliason, 1 East's R. 95. Daniel v. Cartony, 1 Esp. N. P. C. 274. S. P. ante, p. 323. See late stat. referred to ante, n. 20.

« EelmineJätka »