then c. And in an action of debt brought upon this Bond the Defendant pleaded non requisivit which was found against him and in arrest of Judgment it was moved that this Bond was made for the performance of a Symoniacal contract and therefore void but notwithstanding the Court gave Judgment for the Plaintiff and two reasons are given for the Judgment the first was because there was no averment of the Symony second that it was not material as to the Bond because that Statute did not make the Bond or Contracts void but only the presentation c. for this I clearly infer from the conclusion of the case But I confess the sense of the Court was that in truth if a man be preparing a Son for the Clergy and have a Living in his disposal which falls void before his Son be ready he may lawfully take a bond of such person as he shall present to resign when his Son is become capable of such Living and I have nothing to say against that opinion but it is very just and reasonable nature obliging that every one should take care for his posterity but if a Patron take a Bond absolutely to resign upon request without any such cause as the preferment of a Son or to avoid pluralities or non-residence or such reasonable cause but only to a corrupt end and purpose to exact Money by this Bond from the Incumbent or attempt it though perhaps the Bond may be good against the Person that entred into it yet I am clear of opinion for my own part that the said Bond makes the Church void and gives the presentation to the King and it should seem in Jones and Laurence's case that if Symony had been averred it would have been left to a Jury to have adjudged what the intention of the corrupt Patron was The other Case upon which these subtil Simonists build Cro. Car. 180. Hur. in Jones 220. was between Babbington and Wood 5 Car. 1. B. R. where the Case was likewise in debt upon an Obligation with a Condition that whereas the Plaintiff intended to present the Defendant to such a Living that if the Defendant upon request after his admission should resign that then the Bond to be void c. Upon Oyer of this Bond and Condition the Defendant demurred and Judgment was given for the Plaintiff But all the Court conceived that if the Defendant had averred that the Obligation had been made with intent to exact money make a Lease c. which in it self had been Simony then upon such a Plea peradventure it might have appeared to have been Simony and then it might have been a question whether the Bond had been good or no but upon this Demur it did not appear there was any Simoniacal Contract and such a Bond might be made upon a good and lawful design as the preferment of a Son as in Jone's and Laurence's Case before to avoid non-Residence Pluralities c. So that it appears by both these Cases that Bonds taken upon prudent and just ends to resign are non-Simoniacal but where such Bonds are taken upon corrupt designs and it be made appear by any subsequent practice or action it is clearly Simony as if the Bond had been expresly to pay money for what difference is there between a Bond expresly to pay money and a Bond to resign which is to pay money if the Patron say either pay me so much or resign when all the world knows in such a Case the Parson must pay the money or resign and be undone And the world shall never perswade me that those reverend Judges that gave these Judgments ever intended further and I hope that those reverend Judges that now supply their places will discountenance and discourage such practices that tend so much to the ruine of the Church and Religion for I know no Law that tends more to the advancement of learned and religious men than this Law doth and therefore ought to have a benign construction to the end it was designed I find a Case reported Noy 22. T. 15 Jac. ro 2051. C. B. I cannot say that is by an Authentick hand but such as it is I will give it the Reader it was between Sir John Pascall and one Clerk in the 15 year of King James upon evidence to a Jury it was held that such a Bond was Simoniacal but the Circumstances not appearing in the book the Case can be of no great Authority But before I shake hands with these Bonds for Resignation it will be convenient I give my young Clergy-man some cautions against them for it is an old saying the Resetter is worse than the Thief for without Resetters there would be sew theeves And 1. Advice against Bonds for Resignation I hold it a great disreputation for any Clergy-man to give any such bond which may have the least tincture of Simony nor do I believe any man of worth will do it unless it be upon such reasons as aforesaid 2. If such Bond carry with it a Simonaical corrupt design it makes the Clerk no less guilty of Simony than the corrupt Patron and then the Clerk not only loses his Living by this Statute and is for ever incapacitated to have it by any suture Presentation and by the Canon-Law is to be degraded and incapacitated to all other Lastly if he do not resign upon request 3 Inst 153. Margine Noy 72. he is subject to the whole penalty of the bond for Simoniacal Bonds Contracts c. are not made void by this Act but only the Presentment c. And so you may observe a difference between malum in se and malum prohibitum by the Statute or by the Canon-Law whereof the Judges at Common Law take no notice It is now to be considered What Covenants and agreements are within this Law what Covenants or Agreements shall be said to be Simoniacal within this Law If a Father-in-Law upon the marriage of his Daughter covenant with his Son-in-Law without any consideration Cro. â—ar 425. but voluntarily that when such a Church falls void which is in his gift that he will present him to it this is no Simony within this Law but it should seem that such Covenant in consideration of marriage or any other consideration had made it Simoniacal So where the Patron took a bond from the Presentee to pay 10 l. Noy 142. Baker vers Mountford yearly towards maintainance of his Predecessor's Son whilst he remained in the University unpreferred was held no Simony And in that Case it was said by Foster Justice that it was adjudged in the Earl of Sussex's case where the Patron took a Bond of the Incumbent to pay 5 l. per annum to the Widow of his Predecessor it was not Simony these were good charitable Resolutions sed quaere rationem inde and Foster said that notwithstanding great opposition in that Case the Parson enjoyed the Living at that time In the
almost penned in the same words for the double value would make a man at a stand what the meaning of the Parliament was and it was forty years when almost all that were at the making of this Act were dead before it was found out 2 Inst 650⸫ that an Action of Debt lay upon this Clause at Common Law for the treble damages To wit Pasch 29. Eliz In the Exchequer in an Information by the Queens Attorney against one Wood for the treble value as forfeited to the Queen In which Cause it was resolved that an Action of Debt lay at the Common Law for the treble damage for not setting forth of Tithes for wheresoever an Act of Parliament gives a forfeiture against him that doth dispossess c. the Owner of his property as here he doth of his Tithes there the forfeiture is given to the Party grieved or dispossessed since which resolution Actions of Debt have been frequently brought in all the Courts of Westminster by Parsons Vicars Propriators Owners and Farmers of Tithes as well Lay as Spiritual upon this Statute but being so long before it was found out that an Action lay at Common Law upon this Statute the Plaintiffs in the recital of the Statute alledged it to be made the fourth of February 2 E. 6. whereas in truth the Parliament begun the 1 of E. 6. and was held by Prorogation the fourth of February 2 E. 6. And this being discovered in an Action between Oliver and Colier P. 6. Jac. B. R. brought upon this Statute wherein the Statute was misrecited as aforesaid and exception taken to it in arrest of Judgment 1 Brownlow 100. Yelver 126. Dyer 171. p. 6. Stile 122. the Court upon good advisement overruled the exception by reason of the multitude of Presidents and affirmed the Rule that multitudo errantium parit errori Patrocinium Now considering that this is become a very frequent Action in use I conceive it will not be improper to the present occasion to communicate to the Reader what I have observed and learned in this kind of Actions not only concerning the Forms of Declarations Pleadings Verdicts and Judgments but likewise what evidence is necessary upon the general Issues of non culpa and nil debet for the Plaintiff and Defendant and in the first Case consider in what Cases and by whom and against whom this Action may be brought If two be Joynt Tenants Hutton 121⸪ 122⸫ By whom and against whom Actions lye in this Statute and they enter and occupy jointly the Action must be brought against them joyntly but if one only enter and occupie them the Action must be brought against him that only occupies alone But if there be two Tenants in Common and one of them sets out his Tithe and the other carries it all away there the Action shall be brought against him that carries it all away alone If the Husband and Wife in the right of the Wife be intitled to Tithes Noy 3.136 1 Brown 86. Yelv. 63. Cro. Jac. 68. they shall joyn in this Action because the damage is to survive but a Parson and a Vicar cannot joyn but if they joyn in a Lease to a third person their Farmer may sue for all in one Action but in the first Case I see no reason but that the Husband may bring the Action alone and so I have known it often done In an Action brought upon this Statute The Form of the Declar. Bellet vers Henworth P. 1657 B. R. the Severance was alledged before the sowing and exception taken after Verdict but the Exception was disallowed because the shewing of the sowing was superfluous and so aided by the Verdict The taking was alledged after the Plaintiffs Term was ended Cro. Car. 324. and yet held good M. More 911. 40 and 41 Eliz. A Judgment was arrested because the Suit was brought ad respondend tam Domino Regi quam Parti but this Case I very much doubt for being against a Statute Law it is a contempt finable though the Plaintiff have the forfeit as upon the Statute of Huy and Cry Hetley 121. c. And I take the Case inter Luvered and Owen M. 4. Jac. C. B. for the better Law where it was held good Upon an Action brought by two upon this Statute Cro. El. 170. who made their Title by a Lease from a Patentee of the King and exception was taken because they did not shew the Patent but disallowed 1. Because the Letters Patents did not belong to the Plaintiffs 2. Because the Plaintiffs did not demand the Tithes themselves but damages for a tort another Exception was taken to the Declaration because the Plaintiff alledged the Defendant did not agree with them and did not say or either of them but held good by Intendment And it hath been adjudged 2 Bulst 65.228.183 1 Brown 86. Noy 3. Yelv. 63. Cro. Jac. 68.361 that in this Action the Plaintiff needs not to shew his Title especially but it is enough for him to alledg that he is Propriator Farmer or Rector generally without shewing how And it hath been held good 2 Brown 70 71. though the Plaintiff in his Declaration do not express the quantities or loads of the Corn or Hay carried away 2 Inst 650. And so it is though you do not express in your Declaration the kinds of the Grain carried away Where a man alledged Coke vers Smith H. 7. Car. 1.10 587. B. R. per Lat. that he was Farmer of all the Tithe Corn arising c. upon sixty Acres of Land in D. and did not alledg which they were in certain and yet allowed for good 2. The Plaintiff alledged the Defendants Occupiers but did not say whether joyntly or in common and yet held good 3. The Plaintiff had alledged no time of the carrying away but having alledged the time of the severance and the carrying away coming in with a Conjunction Copulative it was held well enough In an Action brought upon this Statute Cto Jac. 324. 2 Bulst 114. the Plaintiff averred in his Declaration that he was subditus dictii Domini Regis having recited the Statute and it was held nought because it must necessarily be intended E. 6. and not of the present King In an Action upon this Stat. Pleas in this Action Porter vers Rochester Hill 9 Jac. B. R. the Defendant pleaded a Recovery in the Ecclesiastical Court but it was held no good Plea at Common Law but I conceive it would be a good evidence upon nil debet pleaded otherwise the Parishioner were in an ill Condition In this Action non culpa and nil debet have been both held good Issues Wortley vers Empringham P. 42. El. B. R. Hob. 218. Cro. El. 766. Cro. Jac. 361. but it is no good Plea to plead that the Plaintiff sowed the Corn and sold it to the Defendant because this matter will not excuse the payment of Tithes Now having
brought the cause to issue upon nil debet or non culpa we will shew in the next place what will be good and material evidence as well for the Plaintiff as Defendant First What Evidence is necessary in this Action ex parte quere If the Plaintiff be a Parson Vicar or other Ecclesiastick and have not been some considerable time in possession of his Living in which I have not observed any constant rule amongst the Judges in their practice but ten years quiet possession for the most part is allowed by the Judges for an evidence of the Plaintiffs Title unless some material objection be made against it to draw it into question but if the Plaintiff have been but for some short time in possession or the possession litigious then the Judges usually put the Plaintiff to prove his institution and induction and now he must prove that he was in Episcopal Orders at the time of his institution otherwise his institution is void by the late Act of Uniformity he must produce a Certificate under the Hand and Seal of the Bishop c. that instituted him that he subscribed the declaration mentioned in the Act of Uniformity and must prove he subscribed the same in the presence of the Bishop or c. and he must prove that within two Months after he was inducted upon some Sunday or Lords day during Divine Service he read the thirty nine Articles of Religion in the Parish Church into which he was inducted and that he did declare his unfeigned assent and consent to all things therein contained and he must likewise prove that within two Months after actual possession of his Living he read Morning and Evening Prayer in his Church upon some Lords day and openly and publickly before the congregation declared his assent and consent to the use of all things therein contained and prescribed in these words I A. B. do here declare my unfeigned assent and consent to all and every thing contaiend and prescribed in and by the Book Intitled the Book of Common Prayer and Administration of the Sacraments and other Rites and Ceremonies of the Church according to the use of the Church of England together with the Psalter or Psalms of David pointed as they are to be sung or said in Churches and the form or manner of making or Ordaining and Consecrating Bishops Priests and Deacons The Parson Vicar c. having thus made himself a Title must proceed to prove the taking and carrying away the Corn Hay c. and the value and if need be that the Land lies within the Parish c. but this the Judges put them to prove first of all commonly But if the Plaintiff be a Farmer or Patentee under the Crown he must prove his Title but if he have been any considerable time in possession and the Title not controverted the Judges seldom put the Plaintiff to shew any more Title but his bare possession and enjoyment and that others pay him Tithes And so having shewed what is necessary the Plaintiff should be prepared to prove I will proceed to shew what defence the Defendant may make The Defendant upon the general issue of not guilty Ex Parte Defendentis Brown 1. 34. c. may prove that he duly set forth his Tithes but if he afterwards carried them away it will not serve his turn so if he sell his Corn privately to another and after he has sold it privately 2 Inst 649⸪ cuts and carries it away the Action lies against the first Owner the same Law is where the Owner of the land privately sells his Corn to another who privately cuts and carries it away And the Defendant may prove that another has a better Title to whom he has paid his Tithes or compounded with him for them Or he may prove that the Parson came in by Simony or any other matter that makes his presentation institution or induction void or any other defect in not reading the Articles c. Or he may prove that he set forth his Tithes and a Stranger carried them away or may give in evidence a Lease or Grant from the Plaintiff himself or any other to whom he can make a good Title but such Leases and Grants must be in writing unless for one year only to the Owner of the Land which hath been held good by way of retainer The Jury if they find for the Plaintiff Verdict are to find how much of the debt demanded by the declaration is due to the Plaintiff which they are to do by trebling the value of the Tithe subtracted wherein they are usually assisted by the Court. The judgment is always given for the debt found by the Jury without costs Judgment because this Action is grounded upon a penal Law where no Action lay at Common Law neither shall the Defendant have any costs if the Verdict pass for him but if judgment be given for the Plaintiff in an Action brought upon this Statute by nihil dicit non sum informatus Cro. Jac. 361 362. or demurrer the Plaintiff shall have Judgment for the whole debt demanded by his declaration And if an Action upon this Statute be brought against two or more and Verdict only pass against one or part of the Defendants the Plaintiff shall have Judgment against those against whom the Verdict passes Stiles 317 318. though the others be acquitted quod nota Note that this Statute as to the treble value and double value extends only to Predial Tithes Nota. and not to Personal mixt or other Church duties The Exchequer likewise by English bill holds plea for the single value Jurisdiction of the Exchequer for subtraction of all manner of Tithes Oblations c. of which great use hath been made since the late Wars and there they decree the single value with costs and the future payment which is of great advantage to the Plaintiffs and these suits are not interrupted with prohibitions but these suits are often very costly too for if a modus decimandi or the bounds of the Parish come in question and the proof not very clear they are frequently sent to Trials at Law which gives delay and increases the charges very much this Jurisdiction I take it is much fortified since Tenths and first-fruits were annexed to the Crown but Suits of this nature were early brought in this Court before the War however there are some antient Books prove that this Court on the Law side has assumed Jurisdiction of Tithes 38 Ass p. 20. 44 E. 3.43 44. but the reporter reports it with a quod mirum Lastly 50 E. 3.20 2 H. 4.15 20 H. 6.17 1 H. 6.5 2 E. 4 5. 44 Ass p. 25. it is evident in our Books of Law that the rights of Tithes were frequently determined at Common Law in Actions of Trespass for taking away of Tithes unless both parties were Clergy-men and sometimes Assises have been brought at Common Law for Tithes
his Patentees after the Leases determined shall hold them discharged whilst the Patentees and Owners hold them in their own hands but the Kings Tenants shall hold them discharged because of the Royal Prerogative of his Person not being intended fit for Husbandry Having now said thus much of the four legal manner of discharges beforementioned 5 Perpetual unity Co. 1.47 b⸪ c. Co. 11.14 b. Dyer 349. p. 16. More 528. Hob. 311⸪ 306 298⸫ 300⸫ 2 Inst 655⸫ More 46 47. Cro. Jac. 608. I shall proceed to that of perpetual unity which cannot be said to be a legal discharge of the payment of Tithes Yet because the Abbots Priors c. at the time of the dissolution held the Lands discharged of the payment of Tithes though not legally discharged of Tithes it hath been resolved by many Judgments and setled that this is a good discharge within the meaning of the aforesaid clause of 31 H. 8. Now that which we call a perpetual unity is as hath been said where an Abbot Definition Prior c. time out of mind have been seized of the Lands out of which the Tithes arise and the Rectory within which Parish the Lands lye And it is to be observed that every perpetual unity that shall discharge the Lands from the payment of Tithes must have these four qualities First Co. 11.44 b⸪ Hob. 300⸪ it must be justa that is by good and lawful Titles Secondly It must be perpetual that is the Abbey must be founded and indowed with the Land and Rectory before the time of memory which by the rules of the Common Law as has been said must be before the first Year of R. 1. for if by any Records Deeds or other legal and good evidence it can be made appear that either the Land or Rectory came to the Abbey since the said first Year of R. 1. the union is not perpetual and yet if the appropriation be antient as in the time of E. 4. or before though the Lands cannot be discharged upon the score of perpetual unity yet they may by prescription if in truth the Lands were held discharged of the payment of Tithes Thirdly such unity as shall discharge Lands of the payment of Tithes within this Law must be aequalis That is the Abbots Priors c. must be seized in fee-simple as well of the Lands upon which c. as of the Rectory Lastly such unity must be libera that is free from the payment of any manner of Tithes for if their Farmers at will years c. have paid any manner of Tithes to the Abbots Priors c. Cro. Jac. 454 482. or their Farmers of the Rectories the perpetual unity will not serve And therefore where such perpetual unity is pleaded in discharge of Tithes the adverse party may reply that the Tenants or Farmers before the dissolution paid some sort of Tithes and so avoid the perpetual unity Having first given the Reader satisfaction that all the Lands that came to the Crown by the Statute of 27 H. 8. and before can have no benefit of the discharge given by the Statute of 31 H. 8. and having also shewed how many ways Lands may be discharged from payment of Tithes that came to the Crown by the said Statute of 31 H. 8. It rests now that I should say something of those Lands that have since come to the Crown by the Statutes of 32 H. 8. cap. 24. 37 H. 8. cap. 4. and 1 E. Co. 2.47 a. How other Lands stand that came not to the Crown by 31 H 8. 6. cap. 14. It is a Rule taken in the Arch-Bishop of Canterburies Case that neither the Letter nor the meaning of the Statute of 31 H. 8. extended to free or discharge any Lands from the payment of Tithes save those that came to the Crown by that Act for as that Book says it is absurd that the branch of the Statute of 31 H. 8. concerning Tithes should be extended to a future Act that the makers of the Statute of 31 H. 8. without the Spirit of Prophesy could not have the prescience of And as to those that came to the Crown by the Statute of 32 H. More 913. Cro. Jac 57. Hill 2 Jac. 8. cap. 24. It was adjudged in the case of Spurling and Quarles that they are not discharged of the payment of Tithes Jones 182 c. Latch 89. Hughes 392. Bridgm. 32. But there is a later Judgment that seems to oppose these former resolutions it was between one Witton and Sir Richard Weston that was after Lord Treasurer Trin. 4. Car. 1. B. R. and the question was whether those Lands of the Hospitaliers that came to the Crown by the Statute of 3 H. cap. 24. were discharged of the payment of Tithes by that Statute of 32 H. 8. or by the former Statute of 31. and in that case Dodridg and Jones Justices held that they were discharged within the Statute of 31 H. 8. and they did in effect deny the Books before cited to be Law the chief Justice Hide was of opinion that they were not discharged by the Statute of 31 H. 8. but by that of 32. So that by their three opinions the defendant Sir Richard Weston had judgment but Whitlock was of opinion that those Lands were not discharged of the payment of Tithes by the one Statute or the other now upon the whole matter I shall submit to the Judicious Readers Judgment whether this later resolution be of any weight to shake the former resolutions since in this case though there were three for giving Judgment for the Defendant yet to the point controverted upon the Statute of 31 H. 8. they were two against two and that they were not discharged by the Statute of 32. there were three against the chief Justice Hide So that I conceive the Law remains according to the former resolutions that there are no Lands freed from the payment of Tithes by any Statute but those that came to the Crown by the Statute of 31 H. 8. I must confess I have met with no Judgments upon those Lands which came to the Crown by the Statute of 37 H. 8. but those being the same with those that came to the Crown by the Statute of 1 E. 6. cap. 14. I conceive neither those that came to the Crown by either of those later Statutes have any priviledg at all and it is agreed in that very case of Witton and Weston that those Lands that came to the Crown by 1 E. Jones 185. Cro. 2.470 .. Co. 2.47 a. 6. could not have any benefit by the clause of discharge in the Statute of 31 H. 8. So that I shall conclude that there is no Land can have any priviledg at this day to be discharged of Tithes that belonged to the Abbots Priors c. but such only as came to the Crown by the Statute of 31 H. 8. cap. 13. CHAP. XXII The Two and Twentieth Chapter
unless the Clerk be de facto presented or collated upon such corrupt Contract And it matters not whether the Incumbent that comes in by a Symoniacal contract were privy thereunto or not Clerk not Privy to the Symony as to making the Church void but the great question is whether the Clerk that is presented upon a Symoniacal contract to which he is neither party nor privy be disabled for that turn to be presented by the King to that Church I have seen the Report of a Case in the latter end of the Reign of King James Fowler vers Lapthorn P. 17. Jac. B. R. where it was adjudged that if a Clerk were presented upon a Symoniacal Contract to which he was not party or privy that yet notwithstanding it was a perpetual disability upon that Clerk as to that Living And in the Case of Baker and Rogers Cro. El. 788. M. 42 and 43 El. B.R. The case was Baker agreed the Church being void to give the Patron 180 l. for the Presentation who presented his Brother who knew nothing of the corrupt Contract till after Induction and though it was clear that the grant of the Presentation during the vacancy was merely void and that Baker presented as an Usurper that yet notwithstanding the Clerk was in by the corrupt Contract because it was not to be intended that the Patron would have suffered the Usurpation had it not been forthe corrupt Contract and there it should seem by Mr. Justice Warburton that the Clerk was disabled quoad hanc And in a Cause between the King and the Bishop of Norwich Cole and Sair Cro. Jac. 385. Bulst 3.92 Sir George Crook who was a Counsel in the Cause reports that Sir Edward Cook affirmed it had been adjudged that if a Church be void and a stranger contracts for a Sum of Money to present one who is not privy to the agreement that notwithstanding the Incumbent coming in by the Symoniacal Contract is a person disabled to enjoy that Benefice although he obtain a new Presentation from the King for the Statute as to that Living has disabled him during Life I must acknowledg if the Law be so taken it is very severe but let us hear Sir Edward Cook himself speak 3 Inst 154⸫ and he in his Comment upon this Statute says that it was adjudged in the before mentioned Case of Baker and Rogers that where the Presentee is not privy nor consenting to any such corrupt Contract as is forbidden by this Statute because it is no Symony in him there the Presentee shall not be adjudged a disabled person within this act for the words of the Statute are And the person so corruptly giving So as he shall not be disabled unless he be privy to the Contract and so says he there it was resolved M. 13. Jac. And Sir Edward Cook in that Book Co. 12.101 that goes under the name of his twelfth Report and without doubt was his own reports that it was so adjudged in the case of Doctor Hutchinson Parson of Kenne in Devonshire by the whole Court that if a Clerk be presented upon a corrupt contract within this Statute although the Clerk be not privy thereunto yet the presentation admisson and induction are all void within the Letter of the Statute for the Law intended to inflict punishment upon the Patron being the Author of this corruption by the loss of his presentation and upon the Incumbent who came in by such a corrupt Patron by the loss of his Living although he never knew of the corrupt Contract but if the Presentee were not cognizant of the corruption then he 's not within the clause of disability within the same Statute and so says he was the opinion of all the Judges of Sarjeant-Inn in Fleet-street Mich. 8. Jac. And it seems to me upon the penning of the Statute that this opinion is more rational than the former for the words of the Statute are That the Person so corruptly taking procuring seeking or accepting shall c. from thenceforth be adjuged a disabled Person in Law to have or enjoy c. And though the Incumbent in this case take and accept the Benefice upon the corrupt contract yet as to him it is not corrupt But this being a point thus controverted Quaere I shall not take upon me to determine but leave it to the Judgment of the more learned I shall in the next place shew what Contracts have been held Simoniacal within the meaning of this Law What Contracts shall be said Symonical In a Cause between Doctor Graunt and one Bowden Hill 16. Jac. ro 667. C. B. it was held upon an Evidence to a Jury that where two Parsons agreed to change their Livings and the one promised his Patron that if he would present the other with whom he was to exchange that he should make the Patron a Lease of his Tithes at such a Rent and this was held Symony although the other was not privy to the Contract he making the the Lease after The Father in the presence of his Son being a Clerk purchased the next advowson of a Church More 916. Cro. El. 685. Smith vers Shelburne the present Incumbent of the Church being sick and not likely to live who soon after died and he presented his Son and this was held Symony within this Statute but if this had been done in the absence of his Son it had not been Symony because the Father is bound to provide for his Son quaere of the difference And by Hutton it was held Symony to purchase the next Advowson Winch 63. Sheldon vers Brett Hob. 165. the Incumbent being sick In the case of one Winchcombe against the Bishop of Winchester and Puleston the case was one Say bargained with the Patron the Incumbent being sick for ninety pounds to present him when the Church should be void and for the better assurance take a Grant of the next avoidance to Friends in trust the Incumbent died Say was presenred and this was held Symony within this Law There is of late time a practice introduced by corrupt Patrons that Bonds for Resignation if not nipt early in the budding will make this good Law of no effect I mean the taking Bonds for resignation And this practice took its rise from two cases in Sir George Crook's Reports The first was between Jones and Laurence 8. Jac. The Case was thus Cro. Jac. 248.274 Jones had a Son which he intended to be a Clergy Man and having obtained a Presentation from Queen Eliz. for the Church of Streetham agreed with the Defendant that he should be presented so that he would resign when Jones his Son was qualified for the Living whereupon the Defendant entred into a Bond of a thousand Marks penalty to the Plaintiff upon this condition having first recited the agreement that if the Defendant within three Months after request should absolutely resign his said Benefice that