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 (1). vacancy in most cases. In case the benefice becomes void by death, or cession through plurality of benefices (u), there the patron is bound to take notice of the vacancy at his Patron bound to own peril; for these are matters of equal notoriety to the patron take notice of and ordinary; but in case of a vacancy by resignation, or canonical deprivation (x), or if a clerk presented be refused for insufficiency, these being matters of which the bishop alone is presumed to be cognisant, here the law requires him to give notice thereof to the patron; otherwise he can take no advantage by way of lapse (y). Neither shall any lapse thereby accrue to the metropolitan or to the king; for it is universally true, that neither the archbishop or the king shall ever present by lapse, but where the immediate ordinary might have collated by lapse, within the six months, and has exceeded his time: for the first step or beginning faileth, et quod non habet principium, non habet finem (z). If the bishop refuse or neglect to examine and admit the patron's 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 (a). Also, if the right of presentation be contested, * and an action be brought against the bishop or suit in equity instituted to try the title, no lapse shall incur till the question of right be decided (b). Disturbance by bishop. simony. [* 453 ] V. By simony, the right of presentation to a living is forfeited and vested pro hac vice in the crown. Simony is the corrupt presentation of any one to V. Forfeiture by 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 (c). However, it was not an offence punishable in a criminal way at the common law (d); it being thought sufficient to leave the clerk to ecclesiastical 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. Upon this ground they find a place in this chapter. By the statute 31 Eliz. c. 6, ss. 4, 5, it is for avoiding of simony enacted, 31 Eliz. C. 6. that if any person, for any sum of money, 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 life-time, it is enacted by stat. 1 W. & M. c. 16, that the simoniacal contract shall not prejudice any other innocent patron, * on pretence of lapse to the crown, or otherwise. 12 Ann. st. 2, c. 12. [* 454 ] 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. simony. 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 What constitutes settled: 1. That to purchase a presentation, the living being actually vacant, is open and notorious simony (e): this being bad at common law as well as 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 (f), 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 living, is direct and palpable 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 (g), and if the purchase be made without a view to any particular clerk it is good, even though the incumbent be to the knowledge of both patron and purchaser in extremis (h). 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 [* 455] patron; but the clerk, who is innocent does not incur any disability or forfeiture (i). 5. That bonds given to pay money to charitable uses, on receiving a presentation to a living, are not simoniacal (k), provided the patron or his relations be not benefited thereby (7); for this is no corrupt consideration moving to the patron. 6. That bonds of resignation in case of non-residence or taking any other preferment are not simoniacal (m). These are now rarely entered into, since residence is enforced, and plurality of benefices prohibited. So, also, bonds to resign when the patron's son comes to a canonical age, are legal; upon the reason before given, that the father is bound to provide for his son (n). 7. General bonds to resign at the patron's request are held to be illegal (o). A bond, however, to resign in favour of any one person specially named therein, or one or two persons being by blood or mar riage an uncle, son, grandson, nephew, or grandnephew, of the patron, has been by a subsequent act (p) rendered good, if the resignation be duly made. in pursuance of it, and the subsequent presentation also accord with the conditions of the bond; otherwise the resignation will be void (q). 8. An agreement by a vendor of an advowson, not being the incumbent, to pay interest on the purchase-money until a vacancy, has been held to be unobjectionable on the score of simony (r). VI. The next kind of forfeitures are those by breach or non-performance of a condition annexed to the estate, either expressly, by deed, at its original creation, or impliedly, by law, from a principle of VI. Forfeiture by breach of condi- natural reason. Both which we considered at large in [*456] tion. a former chapter (s). VII. Forfeiture of copyhold VII. The seventh and last species of forfeiture is that of copyhold estates, by breach of the customs of the manor. Copyhold estates are not only liable to the same forfeitures as those which are held in socage, for treason, felony, alienation, and waste: whereupon the sovereign or the lord may seize them without any presentment by the homage (t): but also to peculiar ferfeitures annexed to this species of tenure, which are incurred by the breach of either the general customs of all copyholds, or the peculiar local customs of certain particular manors. estates by breach of custom. We have already, in treating of copyholds, noticed this liability as incident to the tenure; we need only here observe that, as these tenements were originally held by the lowest and most abject vassals, the marks of feudal dominion continue much the strongest upon this species of property. Most of the offences which occasioned a resumption of the fief by the feudal law, and were denominated feloniæ, per quas vasallus amitteret feudum (u), still continue to be causes of forfeiture in many of our modern copyholds. As, by subtraction of suit and service (x): si dominum deservire noluerit (y): by disclaiming to hold of the lord, or swearing himself not his copyholder (z); si dominum ejuravit, i. e. negavit se a domino feudum habere (a): by neglect to be admitted tenant within a year and a day (b); si per annum et diem cessaverit in petenda investitura (c): by contumacy in not appearing in court after three proclamations (d); si a domino ter citatus non comparuerit (e): or by refusing, *when [ * 457 ] sworn of the homage, to present the truth according to his oath (ƒ); si pares veritatem noverint, et dicant se nescire, cum sciant (g). When a cause of forfeiture has arisen, it is usual for presentation of the facts to be made by the homage (h), and this has been said to be necessary in some cases (i). At all events, the lord must insist upon the forfeiture by entry, or some other similar act (k), and that within the period fixed by the statute of limitations (7). (b) Plowd. 372. (h) See Scriv. Copyh. 511. (i) See Co. Copyh. s. 58. (k) See Doe d. Grubb v. Earl of Burlington, 5 B. & Ad. 507; R. v. Lady St. John Mildmay, ib. 254. () 3 & 4 Will. 4, c. 27, s. 3. [* 458] CHAPTER XIX. TITLE BY JUDGMENT AND BANKRUPTCY. ONE of the primary duties which a man owes to society is the due discharge of all his pecuniary debts and liabilities; correlative to this there necessarily exists, or ought to exist, a function of the law, that of enforcing the discharge of this duty. And one of the most obvious modes of doing this seems to be by insisting upon the application of the debtor's property to this purpose. Land not liable By the common law of England, however, no provision was for payment of made by which a creditor could obtain satisfaction of his debt from the real property of his debtor, however great an extent of land might be possessed by him. (334) debts by the common law. Such laws as now fulfil this function owe their existence entirely to statutory enactment. The object in view, as we have stated, seems to be simple; yet it has not been found easy to devise satisfactory measures for accomplishing it, and the present condition of the law can be described as little more than transitory; and in view of the change now in progress we shall not dwell longer than is necessary to exhibit the outlines of the present law, without entering into detail. We have seen (a) that by the Statute of Westminster 2, as enlarged by a recent act, some provision was introduced by the legislature by which a creditor gained means of applying the rent and profit of land in Elegit. payment of his debt. This, though useful, is not so complete a remedy as is required, nor is it so effectual as that which exists *and always has existed in the case of personal chattels. The want [*459] of the creditor is speedy payment in full. A sale of the debtor's property and payment out of the proceeds alone meets the creditor's wishes. By an act passed in the year 1838 (b), it was declared that a judgment recovered against a debtor should become, subject to certain conditions, a charge enforceable in the court of Chancery, upon all lands made a charge belonging to the debtor at the time of entering up the judgment, or any time afterwards (c). The effect of this change was that an order could be obtained, in a suit in equity instituted for the purpose, for a sale of the lands, thus for the first time enabling a creditor to force a sale of his debtor's lands. Judgment debts upon lands. It was necessary for the creditor to register his judgment in the court of Common Pleas, as a means of giving notice to other persons dealing with the same debtor of his right (d); and in order to keep the charge alive as against (a) Ante, p. 313. (d) Sect. 19. The rules as to this register(b) 1 & 2 Vict. c. 110. The same act that ing and its effect were altered and amended enlarged the effect of an elegit. by 2 & 3 Vict. c. 11, s. 5; 3 & 4 Vict. c. 84, s. (c) Sect. 31. 2; 18 & 19 Vict. c. 15, s. 4. (334) In this country it is the general practice to sell lands for the satisfaction of decrees or judgments rendered against a debtor. By proceeding according to law the creditor may obtain a judgment, which may be made a lien upon the debtor's real estate. And the judg ment may be satisfied by a sale of such real estate, if the debtor's personal property is not sufficient for that purpose. As the proceedings are not precisely alike in all particulars in the different States, it is not deemed proper to discuss the question at length. See 4 Kent's Com. 429-439; also, 2 Washb. Real Prop. 26-34, note (3d ed.), where most of the statutes of the several States are referred to. Power given to the court of Chancery to sell. subsequent judgment creditors, it was necessary to re-register at intervals of five years (e). Many objections to the provisions of this act were found in practice, and in the year 1860 a further alteration was made by which it was rendered necessary, in order to obtain a charge, that not only should a judgment be registered, but a writ of execution issued and registered (f). This was further altered by a subsequent act of the year 1864 (g), by which the creditor must, before he gains any *power of disposing of the land, issue a writ of elegit and actually take the lands in execution under [* 460] the writ, and register this fact in the court of Common Pleas. After he has done this, however, the act gives him power to apply in a summary and inexpensive way to the court of Chancery for an order for sale of the lands (h). It would seem from the language of the last act (i), that a creditor who has thereunder obtained a charge will be able to enforce it even against a subsequent bona fide purchaser from the debtor, without notice of the judgment; it may have been considered perhaps that after the land has been delivered over by the sheriff under the writ of elegit it is impossible for any person dealing with the land to be ignorant of the fact. The act affords a glaring example of the imperfections attending our English method of amending law by ill-considered legislation. Some defects have already been pointed out (k). We may add the following ing the act 27 & amongst many other difficulties which the act has introduced. First, since an equity of redemption cannot be extended under an elegit, it would seem that a judgment creditor of a mortgagor is powerless to reap the benefit of his judgment out of the land in mortgage. Again, if land has already been delivered in execution, a second judgment creditor would be remediless, for the sheriff will not, and indeed obviously cannot, deliver the same land twice; therefore, although the first creditor's debt may only amount to half the value of the land, the second creditor could take no advantage of the existence of the property. Possibly, these difficulties might in some degree be surmounted by the courts declaring the creditor, thus left out in the cold, entitled to redeem the prior, incumbrancer, though this could by no means be a satisfactory solution in all cases. But the act [* 461] ought to have provided for this, and not left it to the chance of a judge having courage to manufacture such law. The law must be amended in those respects, and that soon (1). Difficulties attend 28 Vict. c. 112. * We may here notice that by the aid of suits in the court of Chancery, the land of a deceased debtor can now be taken from the heir or devisee, to be applied in payment of his ancestor's debt. This liability depends upon another series of statutes by which it has been slowly established, the completeness which now exists being however of but very recent date. For it seems clear that in the fourteenth century an heir, unless expressly bound by the deed of his ancestor, Land of a deceased debtor applicable in the court of Chancery to payment of debts. (e) See, as to releasing part of the lands from the effect of a judgment; 22 & 23 Vict. c. 35, s. 11. (f) 23 & 24 Vict. c. 38, s. 1. As to registry, 8. 2. This act has no operation upon the rights of persons as created by judgments entered up before the 23rd July, 1860. (g) 27 & 28 Vict. c. 112, taking effect upon judgments entered up after the 29th July, 1864. The act extends to statutes and recog nizances. |