The other statute is that of 12 Anne, stat. 2, c. 12, sect. 2 of which enacts in effect that if any person, for money or profit, shall procure in his own name, or in the name of any other, the next presentation (r) to any living ecclesiastical, and shall be presented thereupon, the contract shall be deemed to be simonaical, and the presentation is to devolve upon the Crown.
It was decided on the construction of the former Act, that of Elizabeth, very soon after it passed-that a contract to purchase a living actually vacant at the time of the purchase was a simonaical contract, and avoided by the operation of the statute. That was taken for granted in Baker v. Rogers (s), which was decided but a very short time after the passing of the Act; but still, although, after the statute of Elizabeth, it was admitted, that to contract for the right to present to a church actually *void, was simony, yet it was also held, that it was not simony to purchase the next presentation at a time when the church was full, and it was therefore uncertain when that presentation would accrue (t). And so the law continues to be to this day, with a qualification introduced by the statute of Anne, the nature of which I am about to explain to you.
The statute of Elizabeth, and the decisions upon it, had, as I have just said, established two points; first, that the right to present to an actually void benefice could not be purchased; secondly, that the right of next presentation might be so, provided that the living was cumbent might linger on for a few hours after the de-livery of the deed. And such was the opinion of the Court of King's Bench, who delivered their judgment accordingly. But it was carried to the House of Lords, and there reversed according to the unanimous opinion of the other judges, and of Lord Eldon, who was at that time Chancellor.
(r) The purchase of an estate for life in an advowson is not the purchase of a "next presentation" or "next avoidance" within the meaning of this enactment, though there be only one avoidance or vacancy of the living during the lifetime of the cestui que vie, and the purchaser in point of fact gets the next presentation and presents himself. What he purchases is a freehold interest in the advowson to which the statute of Anne does not apply. Walsh u Bishop of Lincoln, L. R. 10 C. P. 518, 44 L. J. (C. P.) 244.
(s) Cro. Eliz. 788.
(t) See Cro. Eliz. 685, Smith v. Shelborne.
20 305 full at the time of the contract. Certain clergymen took advantage of this state of the law to purchase next presentations, with the intention of presenting themselves upon the occurrence of a vacancy. This practice being considered highly indecorous, the statute of the 12th of Anne was passed to put a stop to it, and that Act renders it illegal and simonaical on the part of a clergyman to purchase the next presentation to a living actually full, and to present himself, leaving the right of a layman to do so just as it stood before under the Act of Elizabeth.
The operation of these two statutes was elaborately discussed-first in the King's Bench and subsequently in the House of Lords-in the great *case of Fox v. Bishop of Chester (u). In that case the incumbent of a living was exceedingly ill, and upon his death bed. The proprietor of the advowson and another person being aware of this, and believing that his death was near at hand, agreed for the sale of the next presentation, and in order to carry the agreement into effect, executed a deed a few hours only before his death, which purported to convey the advowson to the vendee for ninety-nine years, but contained a proviso for reconveyance as soon as one presentation should have been made. After the death of the incumbent, the vendee under this deed presented a clergyman who was in no way privy to the bargain; and, consequently, the only question was as to the legality of the bargain itself, and it was strongly urged that it was void; for, it was contended, that the transaction was a fraud upon the statute of Elizabeth, since, under the circumstances, the living was for every practical purpose vacant at the time of the contract, although it was possible that the in(u) 2B.&C. (9 E. C. L. R.) 635; and 6 Bing. (19 E. C. L. R) 1.
Connected with, and indeed, forming a part of *this branch of the subject, are the decisions with regard to resignation bonds, the history of which is extremely curious.
It had become a very common practice when the patron of a living had a son intended for the church, and the living happened to become vacant during the young man's minority, for the patron to present a clergyman, who entered into an agreement to resign as soon as the patron's son should be of age to hold the preferment. These contracts were usually made by way of bond, conditioned to resign on the contingency happening, and which, from the nature of the transaction, acquired the name of Resignation Bonds. At first a doubt was entertained whether these bonds did not offend against the provisions of the Act of Elizabeth, since the clergyman who executed such an instrument could hardly be said to have been presented gratuitously, inasmuch as he agreed to bind himself in a penal sum as a condition precedent to his obtaining the preferment, and inasmuch as, in the case of his refusing to resign, and allowing the penal sum to be forfeited, he actually would have given up that sum of money for the sake i of holding the living. However in Johnes v. Law-rence (v) first the King's Bench, and then the Exchequer Chamber, decided that such an instrument was good : and the reason assigned for this was, that a father is bound by *nature to provide for his son; and therefore that, though the clergyman was presented under an agreement, yet it was not an agreement upon any corrupt consideration, but more resembled the case of a bond to resign in case of non-residence or of taking any other living, which had both been decided to be for the good of the public, and free from any objection on the score of simony. But still another question remained, for in course of time it became usual to extract from the clergyman a bond conditioned to resign-not on the patron's son or any other particular person becoming qualified to hold the living -but to resign generally at the request of the patron whenever he should think proper to signify it. These bonds, which were called General Resignation Bonds, stood, it is obvious, on a different footing from the former ones, for they reduced the clergyman to a state of complete dependence on the will and pleasure of the patron. However, in Ffytche v. The Bishop of London (x), which was finally decided in the year 1783, first the Court of Common Pleas, and then that of the King's Bench, decided that such bonds were valid. But on a writ of error to the House of Lords, that decision was reversed by a majority of lay peers voting against the expressed opinion of a majority of the judges. After that period there was for a long time a strong *inclination on the part of the Courts to confine the authority of that decision of the peers to cases precisely similar to itself, as you will see from the judgments in Bagshaw v. Bosley (y), Partridge v. Winston (z), Newman v. Newman (a). However, at last, in the year 1826, the matter came again before the House of Lords in the case of