[may present before the archbishop has filled up the benefice; but the ordinary cannot, after lapse to the metropolitan, collate his own clerk to the prejudice of the archbishop (b). For (unlike the patron) the ordinary had no permanent right and interest in the advowson, but merely a temporary one; and having neglected to make use of it during the time, he cannot afterwards retrieve his neglect. But if the presentation should lapse to the Crown, prerogative here intervenes and makes a difference; and the patron shall not recover his right till the king has satisfied his turn by presentation (c).

In case the benefice becomes void by death, or by reason of plurality, the patron is bound at his own peril to take notice of the vacancy, the six months running from the date of the vacancy (d); but in the case of a vacancy by resignation or through canonical deprivation, or if a clerk presented be refused for insufficiency, these being matters of which the bishop alone is cognizant, -the law requires him to give notice thereof to the patron, and the six months date only from the time when such notice is given (e); but an ecclesiastical patron is not entitled to this notice (f). Neither shall any lapse accrue to the metropolitan or the Crown in cases where the bishop is precluded, by his having neglected to give notice to the patron, from himself presenting; for it is universally true, that neither the archbishop nor the Crown shall ever present by lapse, but where the immediate ordinary might have collated by lapse within the six months, and hath exceeded his time (g). Also, if the bishop refuse or neglect to examine and admit the patron's clerk (without good reason assigned), he is styled a disturber, and shall not have any title to present by lapse; for no

(b) 2 Roll. Ab. 368.

(c) Doctor and Student, d. 2, ch. 36; R. v. Abp. of Canterbury (1629), Cro. Car. 355.

(d) Wats. Clery. Law, 5; Rogers, Eccl. Law, 488.

(e) 2 Burn, Eccl. Law, 157.
(f) 2 Roll. Ab. 364.

(g) Co. Litt. 344, 345.

[man shall take advantage of his own wrong (h). Also, when the right to presentation is litigious (i.e., contested), and an action is brought to try the title, making the bishop a defendant, no lapse accrues until the question of right is decided ()] and under the Benefices Act, 1898, s. 5, in reckoning the date for lapse, no account is to be taken of the period intervening between the bishop's refusal under that Act to institute a presentee, and the decision of the court on such refusal, nor, of course, of the period intervening between the presentation and the bishop's refusal to institute. But the Act (s. 6) provides that a patron may not (in respect of the same vacancy) present again the same person whom the bishop has refused; and any such second presentation is declared void.

[Simony is the corrupt presentation of any person to an ecclesiastical benefice, for money, gift, or reward (k). Divers Acts of Parliament have from time to time been passed to restrain the practice. First, the 31 Eliz. (1588), c. 6, whereby if any patron, for money or reward, or promise of money or reward, presents a person to any benefice with cure of souls or other ecclesiastical benefice or dignity, both the giver and the taker are to be fined, and the presentation is to be void, and the presentee is rendered incapable of ever enjoying the same benefice, and the Crown presents for that turn. Secondly, the 1 W. & M. (1689), c. 16, which provides that no such simoniacal contract shall prejudice the innocent patron in reversion. Thirdly, the Lunacy Act, 1713, whereby if any person, for money or reward, or promise of money or reward, procures the next presentation to any living, and is presented to it thereupon, the offender is made subject to all the ecclesiastical penalties of simony,

(h) Ibid.

(i) Wats.

Clerg. Law, 112; 2 Burn, Eccl. Law, 358.

(k) Baker v. Rogers (1600), Cro. Eliz. 790.

[and is disabled from ever holding the benefice, and the presentation devolves to the Crown.] And by the Clerical Subscription Act, 1865, every person instituted or collated to any benefice, or licensed to any perpetual curacy, lectureship, or preachership, must previously make and subscribe (in addition to the other declarations required by that statute) a declaration that he has not committed simony. The form of this declaration, as appointed by the Benefices Act, 1898 (7), and as given in the schedule to that Act, is to the same effect; and (to prevent any evasion) the words of the declaration are very precise.

[Many questions have arisen in our courts with regard to what is, and what is not, simony; and, among others, these points seem to be clearly settled:-1. That the sale of an advowson, (whether the living be full or not,) is not simoniacal, unless connected with a corrupt contract or design as to the next presentation (m). 2. That to purchase a next presentation, the living being actually vacant, is simony, that being expressly in the face of the statutes (n). 3. That for a clerk to purchase, either in his own name or in the name of another, the next presentation, and be thereupon presented at any future time to the living, is simony (o). But that, 4, a bargain by any other person for the next presentation, (even should the incumbent be in extremis,) if without the privity, and without any view to the nomination, of the particular clerk afterwards presented, is not simony (p); and that under any simoniacal contract made with the patron, although the presentation is void (7), yet the clerk who is innocent of evil intention

(l) 61 & 62 Vict. c. 48.

(m) Bac. Alb. tit. Simony, 189; Bishop of Lincoln v. Wolferstan 1763), 2 Wils. 174; 3 Burr. 1504; Fox v. Bishop of Chester (1829), 6 Bing. 1; Alston v. Atlay (1836), 6 Nev. & M. 686; Walsh v. Bishop of Lincoln (1875), L. R. 10 C. P. 518.

(n) Baker v. Rogers (1600), Cro. Eliz. 788; Moor, 914, S. C. (0) Winchcombe v. Bishop of Winchester (1617), Hob. 165. (p) Fox v. Bishop of Chester (1829), ubi sup. ; 3 Bligh (N.S.) 123, S. C.

(9) Whish 3 Hagg. 659.

V.

Hesse (1831),

is not otherwise prejudiced (r). Any agreement contrary to s. 1, sub-s. (3) of the Benefices Act, 1898, is now covered by the declaration against simony contained in the Act.

In addition to these points, we may notice, that it has been an occasional practice for the patron to take from the presentee an engagement (usually called a resignation bond) to resign the benefice at a future period, in order to give the patron another opportunity of presenting a clerk. Such engagements, although at one time deemed void, as being simoniacal (s), are now, to a certain extent, sanctioned by the law; the Clergy Resignation Bonds Act, 1828, having enacted, that a written promise to resign, if made to the express intent that some particular nominee, or one of two nominees, shall be thereupon presented, shall be valid, subject always to the following conditions, namely:

(1) That where there are two prospective nominees, each of them must be, either by blood or marriage, an uncle, son, grandson, brother, nephew, or grand-nephew of the patron; (2) that the writing shall in all cases be deposited, within two months after its date, with the registrar of the diocese, and be open to public inspection; and (3) that the resignation made in pursuance of such engagement shall be followed by a presentation, within six months, of the person for whose benefit it is made. And these agreements (which were usually called Resignation Bonds) are expressly reserved by Schedule I. of the Benefices Act, 1898, and remain valid; although by section 1 of that Act, it is now provided, (1) that any agreement for an exercise of the right of patronage in favour of any particular person, and (2) any agreement, entered into upon the transfer of the right of patronage, for the retransfer of the right, or for payment of the consideration (or purchase money) otherwise than in cash down, or for

(r) 3 Inst. 154; R. v. Bishop of Norwich (1616), Cro. Jac. 385. (s) Dashwood v. Peyton (1811),

18 Ves. 27; Fletcher v. Lord Sondes (1826), 3 Bing. 501; 5 B. & Ald. 835.

the resignation of the benefice in favour of any person, shall be invalid.

Thirdly, as to TITHES.-These are a species of incorporeal hereditaments; and they are capable of being held either by laymen, in the capacity of impropriators, or by the clergy, in right of their churches (t). Tithes are the tenth part of the increase, yearly arising, upon the lands and on the personal industry of the inhabitants of the parish,the first species being either prædial, as in the case of corn, grass, hops (u), and wood (x), or mixed, as in the case of wool, milk (y), pigs, etc. (2); and the second species being personal, as in the case of manual occupations, trades, fisheries, and the like. Of prædial and mixed tithes, the tenth was formerly payable in gross; but of personal tithes, only the tenth part of the clear profits was due, and personal tithes were only due or payable, where and so far as the particular custom of the place authorized the claim (a). [Moreover, whatever was not of annual increase (as stone, lime, chalk, and the like) was not in its nature titheable; nor was tithe demandable (except by force of special custom) in respect of animals fere

naturæ.

The establishment of tithes in England was, possibly, contemporary with the planting of Christianity among the Saxons by Saint Augustine about the end of the sixth century; but the first mention of them, in any written English law, occurs in a canon or decree made in a synod of the year 786 (b). And this canon or decree, which at first bound not the laity, was subsequently

(t) Bac. Ab. Tythes (E). See second report on Local Taxation, 1899, p. 8.

(u) Trimmer v. Walsh (1862), 4 B. & S. 18; L. R. 2 H. L. 208. (x) 1 Roll. Ab. 635; 2 Inst. 649; 5 & 6 Will. 4 (1835), c. 75.

(y) Fisher 2 Q. B. 239.

V. Birrell (1841),

(z) 2 Roll. Abr. 364; Inst. ubi sup.

(a) Roll. Abr. 635; 2 & 3 Edw. 6, c. 13; 7 Bro. P. C. 3; Com. Dig. Dismes (E. 3).

(b) Selden, ch. 8, s. 2.