of simony, is disabled from holding the benefice, and the presentation devolves to the crown. 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 settled: 1. That to purchase a presentation, the living being actually vacant, is open and notorious simony: (y) this being 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; (2) 17 and now, by that statute, to purchase, either 16 in his own name or another's, the next presentation, and be thereupon [280] presented at any future time to the living, is direct and palpable si mony. 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. (a) 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 patron; but the clerk, who is innocent, does not incur any disability or forfeiture. (b) 5. That bonds given to pay money to charitable uses, on receiving a presentation to a living, are not simoniacal, (c) provided the patron or his relations be not benefited thereby; (d) for this is no corrupt consideration, moving to the patron. 6. That bonds of resignation, in case of non-residence or taking any other living, are not simoniacal; (e) there being no corrupt consideration herein, but such only as is for the good of the public. So also bonds to resign, when the patron's son comes to canonical age, are legal; upon the reason being given, that the father is bound to provide for his son. (ƒ) 7. Lastly, general bonds to resign at the patron's request are held to be legal: (g) for they may possibly be given for one of the legal considerations before mentioned; and where there is a possibility that a transaction may be fair, the law will not suppose it iniquitous without proof. But, if the 18 b3 Inst. 154. Cro. Jac. 385. (16) And if not actually vacant, the contract for the purchase of the next presentation may be invalidated, consistently with the words of the statute, if it appear that the contract is made in anticipation of a speedy vacancy, the incumbent being afflicted with a mortal disease, and in great danger of his life. As where a contract was made for the sale of a next presentation, the parties at the time knowing the incumbent to be at the point of death, and expecting an immediate vacancy, it was held that the contract was simoniacal, and the presentation, made in pursuance of it by the purchasor, void, although the clerk presented was not privy to the transaction, and the contract was not entered into with a view to the presentation of any particular per son. Fox v. Bishop of Chester, in Error, 2 Bar. & C. 635. Lord Hardwicke was of opinion, that the sale of an advowson during a vacancy, is not within the statute of simony, as the sale of the next presentation is; but it is void by the common law. Amb. 263. See p. 22. ante, note 5. Chitty. (17) But it has been determined, that the purchase of an advowson in fee, when the incumbent was upon his death bed, without any privity of the clerk who was afterwards presented, was not simoniacal, and would not vacate the next presentation. 2 Bl. Rep. 1052." But that case has not the full weight of a judicial decision, because it does not appear to have been acted upon." Per Abbot, C. J. 2 B. & C. 655. Christian. (18) But in the great case of the Bishop of London v. Ffytche, 2 Bro. Parl. C. 811. Cruise Dig. tit. 21. Adv. 79. Mirehouse, 252 to 259. Burn Ecc. L. 356. et seq. it was determined by the house of lords, that a general bond to resign on request is simoniacal and illegal. The circumstances of that case were briefly these: Mr. Ffytche the patron presented Mr. Eyre, his clerk, to the bishop of London, for institution. The bishop refused to admit the presentation, because Mr. Eyre had given a general bond of resignation; upon this, Mr. Ffytche brought a quare impedit against the bishop, to which the bishop pleaded, that the presentation was simoniacal and void, by reason of the bond of resignation; and to this plea Mr. Ffytche demurred. From a se 19 party can prove the contract to have been a corrupt one, such proof will be admitted, in order to shew the bond simoniacal, and therefore void. Neither will the patron be suffered to make an ill use of such a general bond of resignation; as, by extorting a composition for tithes, 12 procuring an annuity for his relation, or by demanding a resignation wantonly or without good cause, such as is approved by the law; as, for the benefit of his own son, or on account of non-residence, plurality of livings, or gross immorality in the incumbent. (h) 20 21 V. The next kind of forfeitures are those by breach or non-per- [281] formance of a condition 2 annexed to the estate, either expressly by deed at its original creation, or impliedly by law from a principle of natural reason. Both which we considered at large in a former chapter. (i) VI. I therefore now proceed to another species of forfeiture, viz. by waste. Waste, vastum, is a spoil or destruction in houses, gardens, trees, or other corporeal hereditaments, to the disherison of him that hath the remainder or reversion in fee-simple or fee-tail. (k) Waste is either voluntary, which is a crime of commission, as by pulling down a house; or it is permissive, which is a matter of omission only, as by suffering it to fall for want of necessary reparations. Whatever does a lasting damage to the freehold or inheritance is waste. (1) Therefore removing wainscot, floors, or other things once fixed to the freehold h 1 Vern. 411. 1 Eq. Cas. Abr. 86, 87. Stra. 534. 1 Hetl. 53. ries of judicial decisions, the court of common pleas thought themselves bound to determine in his favour; and that judgment was affirmed by the court of king's bench; but these judgments were afterwards reversed by the house of lords. The principal question was this, viz. whether such a bond was a reward, gift, profit, or benefit, to the patron under the 31 Eliz. c. 6. if it were so, the statute had declared the presentation to be simoniacal and void. Such a bond is so manifestly intended by the parties to be a benefit to the patron, that it is surprising that it should ever have been argued and decided that it was not a benefit within the meaning of the statute. But in a late case, where a bond was 'given to resign a rectory when the patron's son came of age, and before that time, to reside, and to keep the chancel and rectory house in repair; as this case differed from the former, and it was understood that it was intended to carry it up to the house of lords, it was decided by the court of king's bench in favour of the bond, without an argument. 4 T. R. 359. and 78. And we have a more recent case, where a bond was conditioned for the resignation of a living when either of two persons therein named should be capable of taking the same, which the defendant, when requested, had refused; it was held, that he being a wrongdoer, the jury were not bound in assessing damages to confine themselves to the diminution of the value of the advowson to the plaintiff by the defendant's life interest, nor in estimating the annual proceeds to deduct the curate's stipend which seems to warrant the conclusion that such bonds are legal. 5 Bar. & Ald. 835. See also 4 M & S. 66. in which it was said by Dampier, J. that " a bond to resign in favour of a specified person does not seem to be open to the same objection as if it were to resign generally, because the latter makes the incumbent a mere tenant at will to the patron ;" and the other judges expressed themselves to a similar effect. It has been decided, though with a difference of opinion, that a bond to resign a school or freehold office, at the request of the patron, is good at law, but equity will restrain any improper use of it by the patron. 1 Eart, 391. Christian. : (19) An agreement restraining the then curate from asserting his claim to small tithes, by due course of law, and furnishing evidence against his successors (it being doubtful whether he was entitled to the tithes, or a modus in lieu thereof, although he was to receive an annual sum, as a consideration for the same), was held to be simoniacal, and the presentation void. 7 East R. 600. (20) In an action by the incumbent for the use and occupation of his glebe, the defendant cannot give in evidence the simoniacal presentation of the plaintiff. 5 T. R. 4. But it may be given in evidence by a defendant who is sued for the tithes. Hob. 168. If however the occupier has entered into an agreement for a composition for tithes, he cannot set up as a defence to an action on the agreement, that the incumbent was simoniacally presented. Brooksby v. Watts, 2 Marsh. 38. S. C. 6 Taunt. 333. (21) Questions upon forfeiture in modern times principally arise upon clauses of re-entry in leases for years. It would be beyond the limits of a note upon this treatise to shew all the rules and decisions on the subject; many are ably collected in Adams on Ejectin. 140 to 173. (22) See in general, Bac. Ab. Waste; Com. Dig. Waste; Saunders, R. by Patteson, index, Waste, post 3 vol. 223. 23 of a house, is waste. (m) If a house be destroyed by tempest, lightning, or the like, which is the act of Providence, it is no waste: but otherwise, if the house be burnt by the carelessness or negligence of the lessee: though now by the statue 6 Ann. c. 31. no action will lie against a tenant for an accident of this kind. 24 Waste may also be committed in ponds, dove-houses, warrens, and the like; by so reducing the number of the creatures therein, that there will not be sufficient for the reversioner when he comes to the inheritance. (n) Timber also is part of the inheritance. (0) 25 Such are oak, ash, and elm in all places; and in some particular countries, by local custom, where other trees are generally used for building, they are for that reason considered as timber; and to cut down such trees, or top them, or do any other act whereby the timber [282] may decay, is waste. (p) But underwood the tenant may cut down at any seasonable time that he pleases; (9) and may take sufficient estovers of common right for house-bote and cart-bote; unless restrained (which is usual) by particular covenants or exceptions. (7) The conversion of land from one species to another, is waste. To convert wood, meadow, or pasture, into arable; to turn arable, meadow, or pasture, into woodland; or to turn arable or woodland into meadow or pasture, are all of them waste. (s) For, as sir Edward Coke observes, (t) it not only changes the course of husbandry, but the evidence of the estate; when such a close, which is conveyed and described as pasture, is found to be arable, and e p Co. Litt. 5S. q 2 Roll. Abr. 817. m 4 Rep. 64. n Co. Litt. 53. r Co. Litt. 41. o 4 Rep. 62. t 1 Inst. 53. (23) Between the heir and executor there has not been any relaxation of the ancient law with regard to fixtures, for there is no reason why the one should be more favoured than the other, or the courts would be disposed to assist the heir, and to prevent the inheritance from being dismembered and disfigured. If the inheritance cannot be enjoyed without the things in dispute, the owner could never mean to give thern to the executor, as in the case of salt-pans fixed with mortar to a brick floor, and without which the salt works produce no profit; but if removed are of very little value to the executor, as old materials only. 1 Hen. Bl. 259. n. a. But the courts are more favourable to an executor of a tenant for life against a person in remainder, and therefore they have held that his executor shall have the benefit of a fire-engine erected by a tenant for life, because the colliery might be worked without it, though not so conveniently. 3 Atk. 13. With regard to a tenant for years it is fully established he may take down useful and necessary erections for the benefit of his trade or manufacture, and which enable him to carry it on with more advantage. Bac. Ab. Executor, H. 3. 3 Esp. 11. 2 East, 88. It has been so held in the case of cyder-mills. A tenant for years may also carry away ornamental marble chimney-pieces, wainscot fixed only by screws, and such like. But erections for the purposes of farming and agriculture do not come under the exception with respect to trade, and cannot be taken down again. See Elwes v. Maw, 3 East, 52. And where the tenant has covenanted to leave all buildings, &c. he cannot remove even erections for trade. 1 Taunt. 19. Where a tenant for years has a right to remove erections and fixtures during his lease, and omits doing it, he is a trespasser afterwards for going upon the land, but not a trespasser de bonis asportatis. 2 East, 88. A farmer who raises young fruit-trees on the demised land for filling up his lessor's orchards, is not entitled to sell them, unless he is a nurseryman by trade. 4 Taunt. 316. Christian. (24) With a proviso, however, that the act shall not defeat any agreement between landlord and tenant. See the statute. But if a lessee covenants to pay rent; and to repair with an express exception of casualties by fire; he may be obliged to pay rent during the whole term, though the premises are burnt down by accident, and never rebuilt by the lessor. 1 T. R. 310. Nor can he be relieved by a court of equity, Anst. 687. unless perhaps the landlord has received the value of his premises by insuring. Amb. 621. And if he covenants to repair generally without any express exceptions, and the premises are burnt down, he is bound to rebuild them. 6 T. R. 650. Christian. (25) 2 Saund. 47. b. note f. id. vol. 2. 259. If during the estate of a mere tenant for life, timber is severed either by accident or by wrong, it belongs to the first person who has a vested estate of inheritance. But where there are intermediate contingent estates of inheritance, and the timber is cut down by a combination between the tenant for life and the person who has the next vested estate of inheritance; or if the tenant for life has himself such estate and sells timber; in these cases the chancellor will order it to be preserved for him who has the first contingent estate of inheritance under the settlement. 3 Cox's P. Wms. 266, 3 Woodd. 400. Christian. converso. And the same rule is observed, for the same reason, with regard to converting one species of edifice into another, even though it is improved in its value. (u) To open the land to search for mines of metal, coal, &c. is waste; for that is a detriment to the inheritance: (v) but if the pits or mines were open before, it is no waste for the tenant to continue digging them for his own use; (w) for it is now become the mere annual profit of the land. These three are the general heads of waste, viz. in houses, in timber, and in land. Though, as was before said, whatever else tends to the destruction, or depreciating the value of the inheritance, is considered by the law as waste. Let us next see, who are liable to be punished for committing waste. And by the feodal law, feuds being originally granted for life only, we find that the rule was general for all vasals or feudatories; "si vasallus feudum "dissipaverit, aut insigni detrimento deterius fecerit, privabitur."(x) But in our ancient common law the rule was by no means so large; for not only he that was seised of an estate of inheritance might do as he pleased with it, but also waste was not punishable in any tenant, save only in three persons; guardian in chivalry, tenant in dower, and tenant by the curte- [283] sy; (9) and not in tenant for life or years. (2) And the reason of the diversity, was, that the estate of the three former was created by the act of the law itself, which therefore gave a remedy against them; but tenant for life, or for years, came in by the demise and lease of the owner of the fee, and therefore he might have provided against the committing of waste by his lessee; and if he did not, it was his own default. But, in favour of the owners of the inheritance, the statutes of Marlbridge, 52 Hen. III. c. 23. and of Gloucester 6 Edw. I. c. 5., provided that the writ of waste shall not only lie against tenants by the law of England (or curtesy,) and those in dower, but against any farmer or other that holds in any manner for life or years. So that, for above five hundred years past, all tenants merely for life, or for any less estate, have been punishable, or liable to be impeached for waste, both voluntary and permissive; unless their leases be made, as sometimes they are, without impeachment of waste, absque impetitione vasti; that is, with a provision or protection that no man shall impetere, or sue him for waste, committed. 26 But tenant in tail after possibility of issue extinct is not impeachable for waste; because his estate was at its creation an estate of inheritance, and so not within the statutes. (a) Neither does an action of waste lie for the debtor against tenant by statute, recognizance, or elegit; because against them the debtor may set off the damages in account: (b) but it seems reasonable that it should lie for the reversioner, ex 1 Lev. 309. v 5 Rep. 12. w Hob. 295. x Wright, 44. y It was however a doubt whether waste was punishable at the common law in tenant by the curtesy. Regist. 72. Bro. Abr. tit. waste, 88. 2Inst. 301. a Co. Litt. 27. 2 Roil. Abr. 826. 828. z 2 Inst. 299. (26) A tenant for life without impeachment of waste has as full power of cutting down timber, and of opening new mines for his own use, as if he had an estate of inheritance; and is in the same manner entitled to the timber, if severed by others. 1T. R. 56. Harg. Co. Litt. 220. But although such a tenant for life may commit waste for his own benefit, yet he may be restrained by an injunction out of the court of chancery from making spoil and destruction upon the estate. This distinction was first introduced in the case of lord Barnard, who was tenant for life without impeachment of waste, with remainder to his eldest son in tail; and having conceived a displeasure against his son, from motives of spleen, began to pull down the family mansion, Raby Castle; but he was restrained by the chancellor, and ordered to repair it. 2 Vern. 738. Since that case, such a tenant has been restrained from cutting down avenues and ornamental timber in pleasure grounds, and also young trees not fit for timber; and also trees upon a common two miles distant from the mansion house, which had been planted as an ornament to the e state. 1 Bro. 166. 3 Bro. 549. 6 Ves. Jun. 107. See also 3 Woodd. 399. et seq. where this subject is fully and learnedly treated. Christian. VOL. I. 76 pectant on the determination of the debtor's own estate, or of these estates derived from the debtor. (c) The punishment for waste committed was, by common law and the sta tute of Marlbridge, only single damages; (d) except in the case of a guardian, who also forfeited his wardship (e) by the provisions of the great charter; (ƒ) but the statute of Gloucester directs, that the other four spe cies of tenants shall lose and forfeit the place wherein the waste is committed, and also treble damages to him that hath the inheritance. The expression of the statute is, "he shall forfeit the thing which he hath wasted;" and it hath been determined that under these words the place is also included. (g). And if waste be done sparsim, or here and there, all over a wood, the whole wood shall be recovered; or if in several rooms [284] of a house, the whole house shall be forfeited; (h) because it is imprac ticable for the reversioner to enjoy only the identical places wasted, when lying interspersed with the other. But if waste be done only in one end of a wood (or perhaps in one room of a house, if that can be conveniently separated from the rest), that part only is the locus vastatus, or thing wasted, and that only shall be forfeited to the reversioner. (¿) VII. A seventh species of forfeiture is that of copyhold estates, by breach of the customs of the manor. 2 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 lord may seise them without any presentment by the homage; (k) but also to peculiar forfeitures 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. And we may observe that, as these tenements were originally holden by the lowest and most abject vasals, the marks of feodal dominion continue much the strongest upon this mode of property. Most of the offences, which occasioned a resumption of the fief by the feodal law, and were denominated feloniae, per quas vasallus amitteret feudum, (1) still continue to be causes of forfeiture in many of our modern copyholds. As, by subtraction of suit and service; (m) si dominum deservire noluerit: (n) by disclaiming to hold of the lord, or swearing himself not his copyholder; (0) si dominum ejuravit, i. e. negavit se a domino feudum habere: (p) by neglect to be admitted tenant within a year and a day; (q) si per annum et diem cessaverit in petenda investitura: (r) by contumacy in not appearing in court after three proclamations; (s) si a domino ter citatus non comparuerit: (t) or by refusing, when sworn of the homage, to present the truth according to his oath: (u) si pares veritatem noverint, et dicant se nescire, cum sci[285] ant. (w) In these and a variety of other cases, which it is impossible here to enumerate, the forfeiture does not accrue to the lord till after the offences are presented by the homage, or jury of the lord's court baron: (x) per laudamentum parium suorum; (y) or, as it is more fully (27) In an action of waste on statute of Gloucester against tenant for years for waste in converting three closes of meadow into garden ground, if the jury give only one farthing damages for such closes, the court will give the defendant leave to enter judgment for himself, 2 Bos. & P. 86. 2 Saund. 250. n. 6. (28) See in general, 2 Watkins on Copyhold, index, Forfeiture. |