III. Lapse is a species of forfeiture, whereby the right of presentation to a church accrues to the ordinary by neglect of the patron to present, to the metropolitan by neglect of the ordinary, and to the king by neglect of the metropolitan. For it being for the interest of religion, and the good of the public, that the church should be provided with an officiating minister, the law has therefore given this right of lapse, in order to quicken the patron; who might otherwise, by suffering the church to remain vacant, avoid paying his ecclesiastical dues, and frustrate the pious intentions of his ancestors. This right of lapse was first established about the time (though not by the authority) (e) of the council of Lateran, (d) which was in the reign of our Henry the Second, when the bishops first began to exercise universally the right of institution to churches. (e) And, therefore, where there is no right of institution there is no right of lapse: so that no donative can lapse to the ordinary, (f) unless it hath been augmented by the queen's bounty. (g) But no right of lapse can accrue when the original presentation is in the crown. (h)

The term, in which the title to present by lapse accrues from the one to the other successively, is six calendar months (i) (following in this case the computation of the church, and not the usual one of the common law, and this *exclusive of the day of the avoidance. (k) But, if the bishop be both patron and ordinary, he shall not have a double time allowed him to col- [*277 ] late in; (7) for the forfeiture accrues by law, whenever the negligence has continued six months in the same person. And also if the bishop doth not collate his own clerk immediately to the living, and the patron presents, though after the six months are elapsed, yet his presentation is good, and the bishop is bound to institute the patron's clerk. (m) For as the law only gives the bishop this title by lapse, to punish the patron's negligence, there is no reason that, if the bishop himself be guilty of equal or greater negligence, the patron should be deprived of his turn. If the bishop suffer the presentation to lapse to the metropolitan, the patron also has the same advantage if he presents before the archbishop has filled up the benefice; and that for the same reason. Yet the ordinary cannot, after lapse to the metropolitan, collate his own clerk to the prejudice of the archbishop. (n) For he had no permanent right and interest in the advowson, as the patron hath, but merely a temporary one; which having neglected to make use of during the time, he cannot afterwards retrieve it. But if the presentation lapses to the king, prerogative here intervenes and makes a difference; and the patron shall never recover his right till the king has satisfied his turn by presentation: for nullum tempus occurrit regi. (0) And therefore it may seem as if the church might continue void for ever, unless the king shall be pleased to present; and a patron thereby be absolutely defeated of his advowson. But to prevent this inconvenience, the law has lodged a power in the patron's hands, of, as it were, compelling the king to 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. (p)

*In case the benefice becomes void by death, or cession through plurality of benefices, there the patron is bound to take notice of the vacancy at

(c) 2 Roll. Abr. 336. pl. 10.

(d) Bracton, l. 4, tr. 2, c. 3.

(e) See page 23.
(g) St. 1 Geo. I, st. 2, c. 10.
(i) 6 Rep. 62. Regist. 42.
(k) 2 Inst. 361.
(n) 2 Roll. Abr. 368.
(p) 7 Rep. 28. Cro. Eliz. 44.

(f) Bro. Abr. tit. Quar. Imped. 3 Cro. Jac. 518.
(h) Stat. 17 Edw. II, c. 8. 2 Inst 273.
(1) Gibs. Cod. 769.
(0) Dr. & St. d. 2, c. 36.

(m) 2 Inst. 273.

Cro. Car. 355.

[*278]

and D. 636. A parol disclaimer by tenant for years is no forfeiture. 2 Per. and D. 396. If a tenant set his landlord at defiance, and do any act disclaiming to hold of him as tenant, as, for instance, if he attorn to some other person, no notice to quit will be necessary; for in such case, although the wrongful operation of an attornment has been taken away, 11 Geo. II, c. 19, s. 11, the landlord may treat him as a trespasser. Bull. N. P. 96; Cowp. 622; 2 Sch. and Lefr. 73, 434.

his own peril; for these are matters of equal notoriety to the patron and ordinary; but in case of a vacancy by resignation, or canonical deprivation, or if a clerk presented be refused for insufficiency, these being matters of which the bishop alone is presumed to be cognizant, here the law requires him to give notice thereof to the patron, otherwise he can take no advantage by way of lapse. (q) Neither shall any lapse thereby accrue to the metropolitan or to the king; for it is universally true, that neither the archbishop nor the king shall ever present by lapse, but where the immediate ordinary might have collated by lapse, within the six months, and hath exceeded his time: for the first step or beginning faileth, et quod non habet principium, non habet finem. (r) 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. (8) Also if the right of presentation be litigious or contested, and an action be brought against the bishop to try the title, no lapse shall incur till the question of right be decided. (t)

IV. 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 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, (u) it is ever accompanied with perjury; for the presentee is sworn to have committed no simony. However, it was not an offence punishable in a criminal way at the common law; (w) it being thought sufficient to leave the clerk to ecclesiastical censures. But as these did not affect *the simo[ *279 ] niacal 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; which the modern prevailing usage, with regard to spiritual preferments, calls aloud to be put in execution. I shall briefly consider them in this place, because they devest the corrupt patron of the right of presentation, and vest a new right in the crown.

By the statute 31 Eliz. c. 6, it is for avoiding of simony enacted, that if any patron for any corrupt consideration, 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. (x) But if the presentee dies, without being convicted of such simony in his lifetime, it is enacted by statute 1 W. and M. c. 16, that the simoniacal contract shall not prejudice any other innocent patron, on pretence of lapse to the crown or otherwise. Also by the statute 12 Ann. st. 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.

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: (z) (9) and

(q) 4 Rep. 75. 2 Inst. 632.
(u) 3 Inst. 156. (w) Moor. 564.
(y) Cro. Eliz. 788. Moor. 914.

(r) Co. Litt 344, 345. (s) 2 Roll. Abr. 369. (t) Co. Litt. 344.
(x) For other penalties inflicted by this statute, see Book IV, ch. 4.
(z) Hob. 165.

(9) Mr. Christian, in his note upon the passage in the text, reminds us, that "it has been determined, that the purchase of an advowson in fee, when the incumbent was upon his deathbed, without any privity of the clerk who was afterwards presented, was not simoniacal, and

the next

now, by that statute, to purchase, either in his own name or anothe 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 *280 ] 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 benefitted 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 before given, that the father is bound to provide for his son. (f) 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. (10) But, if the party can prove the contract to have been a corrupt one, such proof will be admitted, in order to show 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, 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

(a) Cro. Eliz. 686. Moor. 916. (e) Cro. Car. 180.

(b) 3 Inst. 154. Cro. Jac. 385.
(c) Noy, 142.
(f) Cro. Jac. 248, 274.
(g) Cro. Car. 180. Stra. 227.

(d) Stra. 534.

would not vacate the next presentation. 2 Bl. Rep. 1052." And though in the later case of Fox v. the Bishop of Chester: 2 Barn. and Cress. 658; S. C., 4 Dowl. and Ryl. 111; the case of Barrett v. Glubb (the case referred to by Mr. Christian), was repudiated by the court of king's bench, the principle of that case has since been re-established. In Fox v. The Bishop of Chester, where a contract was made for the sale of the next presentation of a living, the contracting parties at the time knowing the incumbent to be at the point of death, it was held by the court of king's bench, that the contract was simoniacal, and the presentation made in pursuance thereof by the purchaser 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 person. But this judgment was reversed, on appeal, by the house of lords. See 2 B. and Cr. 635; 3 Bligh, N. S. 123.]

(10) [In the great case of The Bishop of London v. Ffytche, it was determined by the house of lords, that a general bond of resignation 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. Ffytehe demurred. From a series 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. Yet many learned men are dissatisfied with this determination of the lords, and are of opinion that their judgment would be different, if the question were brought before them a second time. But it is generally understood that the lords, from a regard to their dignity, and to preserve a consistency in their judgments, will never permit a question which they have once decided, to be again debated in their house. See 1 Bro. 286. The case of The Bishop of London v. Ffytche, is reported at length in Cunningham's Law of Simony, p. 52.] Upon the same subject, see the later cases of Rowlatt v. Rowlatt, 1 Jac. and Wal. 233; Dashwood v. Peyton, 18 Ves. 37; Fletcher v. Lord Sondes, 3 Bing. 502, S. C., 5 B. and A. 835; and also the statute 9 Geo. IV, c. 94. And see Bagshaw v. Bossley, 4 T. R. 78; Partridge v. Whiston, id. 359; Newman v. New man, 4 M. and S. 71.

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513

own son, or on account of non-residence, plurality of livings, or gross immorality in the incumbent. ()

*V. The next kind of forfeitures are those by breach or non-perform[ *281] ance of a condition 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 dishersion of him that hath the remainder or reversion in fee-simple or fee-tail. (k) (11)

Waste is either voluntary, which is a crime of commission, as by pulling down a house; or it is permissive, (12) 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 of a house, is waste. (m) (13)

(h)1 Vern. 411. 1 Equ. Cas. Abr. 86, 87. Stra. 534. (k) Co. Litt. 53.

(1) Hell. 35.

(m) 4 Rep. 64.

(i) See ch. 10, page 152.

(11) [A tenant for life has no property in timber or underwood till his estate comes into possession, and therefore cannot have an account in equity, or maintain an action of trover at faw, for what has been cut wrongfully by a preceding tenant, notwithstanding his own estate, being without impeachment of waste, would have entitled him to cut such timber or underwood, and put the produce into his own pocket: the owner of the first estate of inheritance, at the time when the timber was cut, is the party entitled to redress in such case. Pigot v. Bullock, 1 Ves. Jun. 484; Whitfield v. Bewit, 2 P. Wms. 242. However, a tenant for life in remainder, though he cannot establish any property in timber actually severed during a prior estate, may bring a bill to restrain waste; and he may sustain such a suit, although he has not the immediate remainder, and notwithstanding his estate, whenever it comes into possession, will be subject to impeachment for waste; for, though he will have no right to the timber, he will have an interest in the mast and shade of the trees. So, trustees to preserve contingent remainders may maintain a suit for a similar injunction, even though the contingent remainder-men have not come into esse. Perrot v. Perrot, 3 Atk. 95; Stansfield v. Habergham, 10 Ves. 281; Garth v. Cotton, 3 Atk. 754. It is true, that, in cases of legal waste, if there be no person capable of maintaining an action, before the party who committed the waste dies, the wrong is then without a remedy at common law; but, where the question is brought without the cognizance of equity, those courts say, unauthorized waste shall not be committed with impunity; and the produce of the tortious act shall be laid up for the benefit of the contingent remainder-men. Marquis of Lansdowne v. Marchioness Dowager of Lansdowne, 1 Mad. 140; Bishop of Winchester v. Knight, 1 P. Wms. 407; Anonym. I Ves. Jun. 93.]

(12) [Where an estate is given for life, without impeachment of waste other than wilful waste, this will excuse permissive waste: Lansdowne, v. Lansdowne, 1 Jac. and Walk. 523; if the tenant for life, under such a limitation, cut timber, Sir Wm. Grant, M. R., seems to have felt it questionable whether the tenant could appropriate to himself the principal money produced by the sale of such timber, though he held it clear he was entitled to the interest thereof for his life: Wickham v. Wickham, 19 Ves. 423; S. C., Cooper, 290; but, from the case of Williams v. Williams, 12 East, 220, it should appear that the tenant for life would have the entire property in timber so cut down.]

(13) [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 favored 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 them to the executor, as in the case of saltpans 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 favorable 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 cider mills. A tenant for years may also carry away ornamental marble chimney pieces, wainscot fixed only by screws, and such like. 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 fix tures 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 fariner who raises young fruit trees on the

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 statute 6 Ann. c. 31, no action will lie against a tenant for an accident of this kind. (14) 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 a part of the inheritance. (0) Such are đak, 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 may decay, is waste. (p) But underwood the tenant may cut down at any seasonable time *that he pleases; (7) and may take sufficient estovers of common right for house[ *282] bote and cart-bote; unless restrained (which is usual) by particular covenants or exceptions. (r) 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, (f) 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 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) (15) but if the pits or mines were open before,

(n) Co. Litt. 53. (r) Co. Litt. 41.

(0) 4 Rep. 62. (8) Hob. 296.

(p) Co. Litt. 53.
(t) 1 Inst. 53.

(q) 2 Roll. Abr. 817. (u) 1 Lev. 309.

(v) 5 Rep. 12.

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.]

Upon the general subject of fixtures see Amos and Ferrard on Fixtures; Elwes v. Mawe, and the notes thereto, in 2 Smith's Leading Cases 99; Washb. Real Prop. c. 1; Williams on Pers. Prop. 13 notes to 3d American ed.; Willard on Real Estate, 83-90.

(14) [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 burned down, he is bound to rebuild them. 6 T. R. 650.

But though the tenant is not liable for the unroofing of his house by a tempest, he may be liable for waste if he suffer it to remain uncovered. Pollard v. Shaaffer, 1 Dall. 210. And he is liable for waste committed upon the premises by a trespasser, because it is his duty to protect them. Fay v. Brewer, 3 Pick. 203. The statute of Anne referred to in the text is adopted into the common law of this country; Wainscott v. Silvers, 13 Ind. 497; but the accidental destruction of a building leased with the land on which it stood, would not excuse the tenant from the payment of rent; though if the lease was of a part of a building only, and the building was destroyed, so that the subject matter of the lease no longer existed, the right to rents would be extinguished. Winton v. Cornish, 5 Ohio, 477; Graves v. Berdan, 29 Barb. 100. See post, book 3, p. 228, n.

(15) [It is in order to prevent irremediable injury to the inheritance that the court of chancery will grant injunctions against waste, and allow affidavits to be read in support of such injunctions: the defendant might possibly be able to pay for the mischief done, if it could ultimately be proved that his act was tortious; but, if any thing is about to be abstracted which cannot be restored in specie, no man ought to be liable to have that taken away which cannot be replaced, merely because he may possibly recover (what others may deem) an equivalent in money. Berkeley v. Brymer, 9 Ves. 356.

In general cases, for the purpose of dissolving an injunction granted ex parte, the established practice is to give credit to the answer when it comes in, if it denies all the circumstances upon which the equity of the plaintiff's application rests, and not to allow affidavits to be read in contradiction to such answer: Clapham v. White, 8 Ves. 36; but an exception to this rule is made in cases of alleged irremediable waste: Potter v. Chapman, Ambl. 99; and in cases analogous to waste: Peacock v. Peacock, 16 Ves. 51; Gibbs v. Cole, 3 P. Wms. 254; yet even in such cases, the plaintiff's affidavits must not go to the question of title, but be confined to the question of fact as to waste done or threatened. Morphett v. Jones, 19 Ves. 351.