ment to carry it into effect. This will be illustrated by the case of Winchcombe and Pulleston, Noy, 25, Hobart, 165, 1 Brownl. & Golds. 164, the leading case on the subject: the pleadings in Winch's Entries, 887, fully explain the nature of the transaction. The contract was made between the clerk to be presented and the patron, the incumbent being then sick of a grievous disease, and expected every day to die, that in consideration of 907. to be paid by the clerk to the patron, he thould procure him to be presented to the church when vacant, and to assure such presentation he should *grant the next avoidance to a person, a familiar friend of the clerk, specially nominated and appointed by him in confidence to make the presentation, with the intent that the clerk should be presented; and it is averred, that in performance of this contract the grant was made, and the contract was so found by the jury. Here was a clear simoniacal contract; and the substituted patron was the mere instrument to carry the contract into effect, and to appoint the particular clerk. The case of Closse v. Pomcoyes, cited Lane, 73, is nearly to the same effect; and is another instance of a contrivance to carry into effect a simoniacal contract. [*12 If the presentation do not appear upon the face of the pleadings to be clearly simoniacal, that is a presentation by the existing patron, of the clerk, for reward, it is a question for the jury whether each transaction be or be not a shift or contrivance to carry a simoniacal contract into effect; as, under the statutes against usury, if there appear on the face of an instrument a loan, and a reservation of illegal interest, the court can give judgment against its validity, but if the transaction does not appear on the face of it, Yeoman v. Barstow, Lutw. 273, Kitchen v. Calvert, Lane, 100, necessarily to be usurious, it is a question of fact for the jury, and whether it be a shift or contrivance or not. In both the cases, the really simoniacal or usurious contract ought to be shown by a special plea when a special plea is required: and in cases found by the jury. The defendant has not pleaded in this case, and the jury have not found that there was any corrupt or simoniacal contract, that Trafford should present the clerk; and that the grant of the next presentation was a mere contrivance to carry it into effect. *In the absence of such a finding, the court cannot make any presumption against the validity of the grant. Simony as well as fraud is not to be [*13 presumed, but found. But if it were competent for the court to make any presumption, the facts pleaded and found do not warrant any such presumption in this case. If it had been found that money was to have been given to Trafford, if Uppleby should be presented, or that it was the purpose or even intent of the plaintiff to have presented Uppleby, it might have been argued that the grant was made for that purpose, and if so, the grant may possibly be said to be an instrument to carry into effect the particular appointment; and the clerk may possibly be said to have been presented by the former patron. In such a case the substituted patron has no power of selection, but is a mere instrument, and the appointment, made virtually by the old patron, is an appointment made for reward. But if there is no intention or purpose to present any particular clerk, the new patron is a free agent, may select whom he pleases, and if he select any clerk, without reward, he is not within either the letter or spirit of the act. The selection of the clerk, the object aimed at by the statute, is free from all taint. The old patron parts with and the new patron purchases the right of selection, by means of the grant, and that right is fairly and properly exercised. The judgment of the court of King's Bench (2 Barn. & Cress. 658), proceeds in a great degree upon the ground that courts have a right to consider what is an evasion of a statute, a power which it is humbly conceived does not apply at least to the case of a penal statute creating forfeitures, and if allowed to be exercised, would lead to great doubt and uncertainty in the law. [*14 Upon referring to decided cases, there is none in which it has been held that the grant of a next presentation, the incumbent being in extremis, is void, a short note in Winch, 63, Sheldon v. Bret, excepted, in which mention is made of its hav ing been so adjudged in Chancery, but under what circumstances does not appear; it may have been so adjudged on the special facts. On the other hand, there is a solemn decision of the Court, Barret v. Glubb, 2 Black. 1052, that by the grant of an advowson, when the incumbent was on his death-bed, and it was uncertain whether he would live over the night, with full knowledge in the contracting parties, the next presentation did pass, and was not avoided by simony, which is a direct authority for the plaintiff in error. If the grant of next presentation, when united with all other future presentations, was not void, the grant of the next presentation alone could not be so. This decision has never yet been questioned until the present case. The argument for the defendant in error was in substance as follows:1st. Simony was an offence by the common law of the land, antecedently to the statute of 31 Eliz. c. 6; and the transaction, as stated upon the record, was a corrupt and simoniacal contract for the sale of the next turn or presentation, under the special circumstances of the case: 1 Institute, 17 B; 3 Institute, 156; Mackaller v. Todderick, Cro. Car. 361; Winchcomb v. Pulleston, Hob. 167; Bartlett v. Vinor, Cartb. 252. *15] 2dly. The presentation in the present case, was *substantially a presentation by Mr. Trafford the seller, and was by him a presentation for money. 3dly. The transaction in question was a shift and contrivance to evade the provisions of the statute of the 31 Eliz. c. 6. 4thly. It was a presentation by Mr. Trafford, for money, of such clerk as Mr. Fox might nominate; and a contract to such effect is simoniacal, though it may have passed without the privity of the clerk, who may afterwards happen to be presented; the privity of a clerk is not a necessary ingredient in a corrupt or simoniacal contract, as has been established by several authorities, and particularly in Doctor Hutchinson's case, 12 Rep. 100; and in the case of Baker v. Rogers, Cro. Eliz. 788. 5thly. By law no grant can be made of the next presentation, when the church is empty, Brookesby's case, Cro. Eliz. 174, S. C. 1 Leon. 167, 3 Leon. 256, Dyer, 282; of which rule, though it has been sometimes said that the reason is, that the presentation is then a fruit fallen, or that it is a mere personal privilege, or that is severed from the advowson, and would pass to the executor; the true and substantial reason is public utility, and the better to guard against the mischiefs of simony, as was expressly laid down by Lord Mansfield, Chief Justice, and Mr. Justice Wilmot, in the Bishop of Lincoln v. Wolferston, 3 Burr. 1504, and the contract in the present instance was made upon the footing and understanding of the church being full in name and form only, but vacant in substance and reality. 6thly. The law, of which the object and policy is the presenting to benefices, with cure of souls, of men of learning and piety, and the preventing of scandal to religion, and prejudice to the church, by preferments either of improper per*16] sons, or from corrupt motives, will not endure the danger which would arise from the sale of the right of presentation, when the incumbent is at the point of death, where the contracting parties know that fact, and where the contract is made with a view to and upon the terms of an immediate presentation. 7thly. There is no mischief intended to be guarded against by the rule of law prohibiting the sale of the next presentation, when the church is empty, which might not be equally incurred, if such presentation could be sold when the incumbent is on his death-bed, and known to be so both to the buyer and to the seller. 8thly. The statute 31 Eliz. c. 6, ought to receive a liberal construction, in order to reach the evil for the remedy of which it was passed, and because the deed set forth in the record was only a contrivance to pass an immediate presen tation for money, in violation of the policy and evasion of the provisions of the statute. Lastly. In Sheldon v. Bret it was expressly decided, that a grant of the next turn for money was simoniacal, when the parson was sick in his bed, and ready to die. On this day the opinion of the Judges of the Courts of Common Pleas and Exchequer was delivered as follows by BEST, C. J. My Lords, the question which Your Lordships have been pleased to put to the Judges in this case is, "Whether, upon the whole of the matters stated or referred to in the special verdict, the right to present to the rectory or parish church of Wilmslow, upon the death of the Reverend Joseph Bradshaw, was by law vested in Edward Vigor Fox, the plaintiff in error." The Judges who heard the argument at Your Lordships' bar are unanimously of opinion, that upon the whole matters stated or referred to in the special verdict, the right to present to the rectory or parish church of Wilmslow, upon the death of the Reverend Joseph Bradshaw, was by law vested in Edward Vigor Fox, the plaintiff in errror. [*17 The patronage of churches was at first yielded by the bishops to the lords of manors who founded or endowed them, and annexed them to the manors ir which the churches were situate. By the grant of a manor, the advowson appendant to it passes to the grantee; many of these advowsons have since been severed from the manors to which they were appendant. Although advowsons, when in gross, as these which are separated from the manors to which they belonged are called, are a species of spiritual trusts, yet they have been said by Lord Kenyon and other Judges to be trusts connected with interests; and they certainly do not lose the temporal character which originally belonged to them, but may be sold either in perpetuity, or for the next or any number of avoidances. If the perpetual advowson be sold when the church is void, the next presentation will not pass; and if the next avoidance only be sold after the death of the incumbent, the sale is altogether void. It may be wise to carry the restraint on the sale of this species of property still further, and to say the next avoidance shall in no case be sold. Undoubtedly much simony is indirectly committed by the sale of next presentations. If it be proper to prevent the giving of money for a presentation, it seems equally proper to prevent the sale of that which gives the immediate right to present. But the courts of law have never thought that they were authorized to go this length; and even in cases where the purchase of the next presentation seemed to bring a party nearer to simony than in any other, it was found necessary to have the aid of the legislature to prevent such purchases. A clergyman might buy a next presentation, and present himself, before the passing of the statute of the 12 Ann. c. 12. The preamble to the second section of that *statute states that "some of the clergy have procured preferments for themselves by buying ecclesiastical livings." And [*18 then the section provides, that if any one shall either directly or indirectly take or procure the next avoidance for money, reward, gift, profit, or benefit, or shall be presented or collated (which words limit the operation of the act to clergymen), that it shall be deemed simoniacal. It seems to me, that if the terms of the statute of Elizabeth could be extended by equity, the case of a clergyman buying a presentation with the intention of presenting himself might have been reached without any other act of parliament. If such a case as that were not within the statute of Elizabeth, the case, on which Your Lordships have desired our opinion, cannot be affected by that statute. The church, in the present case, was full; no clergyman was privy to the agree ment; and the living was not intended by the plaintiff in error, at the time he bought the presentation, for the clerk that he afterwards presented. But I would observe, that persons have recovered who appeared to be dying. The special verdict only states, that the incumbent, at the time of the sale, was afflicted with a mortal disease, so that he was then in extreme danger of his life; and his life was thereby greatly despaired of; and that he was so afflicted with such morta. disease, and in extreme danger of his life, and his life was and continued to be greatly despaired of until his death, which happened at half-past eleven at night of the day on which the sale was completed. Many who are afflicted with mor tal diseases, and are from such diseases thought to be in imminent danger of dying, live for a considerable time; and the effect of the diseases are sometimes so far suspended, that the persons so afflicted become again capable of performing the duties belonging to their stations in life. *If this conveyance was void, it must have been void at the time it was *19] executed, and would remain void into whatever hands and under whatever circumstances the right of presentation might have passed. Now, if this incumbent had been restored to apparent health, and the vendee had sold the presentation to another person, ignorant of the circumstances under which the first sale was made, it would be most unjust to hold that the second sale was void; and yet this would be the necessary consequence of a decision that the sale was simoniacal. Whilst the law permits the next presentations of livings to be sold during the lives of the incumbents, as long as the incumbent is alive the sale is good. Every one who purchases a next presentation contemplates the death of the incumbent. If this contemplation made the sale void, no sale of a next avoidance could be good. If the death of the incumbent, and the prospect of using the presentation, may be contemplated, the time when the death is to happen cannot be material. This case has been compared by the counsel for the defendant in error to those of contemplation of bankruptcy. But a party is not permitted to do an act in contemplation of bankruptcy which is injurious to creditors. A transfer of goods or payment of money in contemplation of bankruptcy, was, before the 6 G. 4, void. By that act such a transfer or payment is an act of bankruptcy, because such transactions are direct, frauds on the creditors of the bankrupt. But the death of an incumbent may be contemplated, and the purchasing of the next avoidance, in consequence of such contemplation, is no fraud upon any The cases, therefore, have no resemblance to each other. The making the legality of the transaction to depend on the state of the incumbent's health would give occasion to much expensive litigation, and, probably, to much false *swearing, and would keep churches for a long time void. one. *20] The affairs of men are best regulated by broad rules, such as exclude all subtle disputes, all doubtful, unsatisfactory inquiries. It would be difficult to establish a rule that should settle what degree of probability of the approaching death of an incumbent should prevent the sale of the avoidance of a benefice, and more difficult to ascertain by evidence when an incumbent was within that degree. I submit to your Lordships, that the most convenient rule is that which I conceive the law has already established, namely, that the right to sell the presentation continues as long as the incumbent is in existence. The judgment of the Court below is, according to the words of the Chief Justice, "founded on the language of the 31 Eliz. c. 6, and the well-known principle of law, that the provisions of an act of parliament shall not be evaded by shift or contrivance." The words of the fifth section of the act are, "If any person shall, for any sum of money, reward, gift, profit, or benefit, directly or indirectly, or for or by reason of any promise, agreement, grant, bond, covenant, or other assurance of or for any sum of money, reward, gift, profit, or benefit whatsoever, directly or indirectly present or collate any person to any benefice, or give or bestow the same for or in respect of any such corrupt cause or consideration." This clause applies only to the person presenting to the living. If he has received no reward or promise of reward, the presentation is not affected by the terms of the act. The plaintiff in error, who made the presentation, received no reward, nor had any expectation of reward, for making this presentation. I agree, that if some other person had received a reward for the plaintiff in error, and was to account to him for it-if the plaintiff in error was not the real purchaser *of the avoidance, but the person presented, or *21] some one in his behalf, these and many other things might be considered as frauds on the act, and have avoided the contract. But such things should have been shown by the pleadings, and found by the jury. All that appears on this record is, that the plaintiff in error bought the next avoidance of a living that was full; and ta, without any corrupt consideration, he used the right of presentation which he had purchased. All this he had a right to do. There is no circumstance found that shows this is a fraud on the act, unless it be a fraud on the act to buy the presentation to a living which the seller and buyer expect will soon become vacant. Presentations are bought and sold every day with this expectation. There is no legal authority to support the judgment of the Court, except a short and loose note in Winch's Reports of Hutton, saying what used to be done in Chancery; on the other hand, the case of Barrett v. Glubb is directly opposed to the judgment of the Court of King's Bench. It was thought that case had not the weight of a judicial decision because it was not acted upon. But it was acted upon. Lord Bathurst decreed the conveyance of the advowson which included the next presentation, and gave the purchaser and his clerk their costs. The seller must have acquiesced in this decision, or he would have prosecuted his quare impedit; and if the Common Pleas had retained the opinion that they had certified to the Chancellor, he might have carried it by bill of exceptions to the King's Bench. When the Chancellor decreed a conveyance, without doubt it was such a conveyance as gave the purchaser a legal title from a time before the death of the incumbent, by making the assignment take effect from the date of the contract to assign; there was, therefore, no occasion for any injunction, as was supposed by the King's Bench. The question, by [*22 the conveyance decreed, was fairly raised for another court of law, if the party had not completely acquiesced in the judgment of the Common Pleas, confirmed by that of the Chancellor. There are no other cases in the books which bear much on the question proposed to us by your Lordships. For the reasons given in support of the Judges' answer to that question I only am responsible. Earl of ELDON. My Lords, I will trouble your Lordships with a very few words on this case, which involves questions, certainly, of very considerable importance. A case upon the same subject was decided by the Court of Common Pleas many years ago: and the manner in which that case was decided in the Court of Common Pleas was of very great importance, first, because it was decided by most learned Judges; and, secondly, because it was a case in which a court of equity sent the case for the opinion of that court, in order to enable that court of equity to decide what it should do in equity. The case was this: there had been the purchase of an advowson, the incumbent being at the time in such a state that he died within two days afterwards. I believe, indeed, the period was very nearly the same, if not exactly the same, as in the present case. Your Lordships will recollect it was one circumstance in that case, that the intended purchaser of the estate stated that there must be no delay, but that the contract should be immediately completed. The Court at that time was filled by Lord Chief Justice De Grey, a very eminent Judge, Mr. Justice Blackstone, and by two other Judges. The case was sent by Lord Bathurst for the opinion of the Court of Common Pleas, for the purpose of enabling the Lord Chancellor to determine whether the mere contract should be carried into execution by an actual conveyance. Now, that being the *nature of the case, and that being a case in equity, makes it a much stronger case than if the court of equity had not taken that course, because your Lordships will recollect that, with respect to many cases of contracts which come before courts of equity, the parties resort to a court of equity because it is conceived there are grounds upon which a court of equity will grant its interposition to carry into effect that contract. In that case the controversy was, whether, supposing that contract to be good in law, the party ought not to be left to his remedy at law instead of coming into equity for a specific performance of the contract; however, the Chancellor of that day thought fit to take the opinion of the Court of Common Pleas upon the question, whether the advowson being sold at such a period, nearly approaching to the death of the clergyman, the presentation as well as the advowson being included in the conveyance, carried with [*23 |