being informed that Mr. Eyre had given his patron a bond in a large penalty, to resign the said rectory at any time upon his request, and Mr. Eyre acknowledging that he had given such a bond, the bishop refused to institute him to the living. Mr. Fytche brought a quare impedit against the bishop, to which he pleaded two pleas:-1. That the living was a benefice with cure of souls, and that the clerk had given a bond to the patron in the penalty of 3,000l. to resign at any time upon the request of the patron ; whereby the presentation became void in law. 2dly, That the living was a benefice with cure of souls, and that, for the purpose of investing the patron with an undue influence over the clerk, it was agreed that the clerk should, in consideration of the presentation, become bound to the patron in a bond as aforesaid; which was accordingly done.

Mr. Fytche demurred to both these pleas. The bishop having joined in demurrer, judgement was given by the Court of Common Pleas for the patron, and affirmed by the Court of King's Bench.

Upon a writ of error in the House of Lords, it was contended on the part of the bishop, that although there were several adjudged cases upon the subject of general bonds of resignation, none of them had arisen in the same form, or between parties acting in the same capacity, and under circumstances similar to the present; therefore they ought not to be considered as precedents by which this case was to be determined. That the bishop or ordinary was authorized by law to judge in the first instance of the fitness or unfitness of the person presented to him for institution; and the appellant had, in this instance, exercised his authority according to law. That it was in the power of the patron, by means of a general

bond, to establish two modes of selling a vacant living, which was simony; either of which was equally certain and infallible. 1. The parties might make the penalty in the bond adequate to the price of the living. The presentee, when instituted, might refuse to resign, and pay the penalty without any suit; or might make known the execution of the bond, and then tender resignation to the bishop; which the bishop, under those circumstances, would probably refuse. Upon his refusal, the bond might be put in suit; and thus, also, by a circuity, the penalty might be paid as the price of the living.

The second mode of selling a living which was vacant, through the medium of a general bond of resignation, was equally obvious and practicable. The penalty of the bond of resignation might be made excessive, much above the real value of the living; the patron might during the incumbency of the presentee, who executed the bond to resign, sell the next turn or right of presentation, at an advanced price, and after such sale require the incumbent to resign in terms of his bond. By this means the first presentation would be fictitious; and the sale of the second presentation, though made under the pretence of selling a right of presentation to a full benefice, would in reality be the sale of a vacant living. That a general bond to resign put the person who entered into such bond under the power of the lay patron, instead of being under the authority of the bishop, to whom he swears canonical obedience; and whom by law he was obliged to obey; and was thus contrary to good policy; creating an influence which tended to subvert ecclesiastical discipline and subordination. That general bonds of resignation were contrary to law, by altering the tenure of the office

of a beneficed clergyman; for every benefice being an office for life, the patron could grant it only for life; he could not grant it for years, he could not grant it at the will of himself, for such grant in direct terms would be void, as contrary to the very tenure of the office : where there was a general bond of resignation entered into, the same alteration of the tenure was effected by circuity. The patron granted, and the presentee accepted, at the will of the patron, that benefice, which the law intended to be conferred and holden for life.

That although a court of equity would grant relief, in case the patron made an improper use of a general bond to resign; yet from the extreme difficulty of discovering the real purpose for which it was used, it could seldom be possible to procure such relief; or to guard, by that means, against the consequences that follow from such bonds being tolerated. The bad purpose not being discovered, could not be prevented but by a solemn decision, that general bonds of resignation were illegal. That a general bond of resignation puts it in a great measure in the patron's power to convert a part of the profits of the living to his own use; and absolutely puts it in the power of patron and incumbent together, to make such partition of them as they can agree upon, whereby the revenues of the church may be alienated: and that a general bond of resignation was an assurance of profit or benefit to the patron; and therefore contrary to the statute 31 Eliz. c. 6., and inconsistent with the oath of simony.

On behalf of the defendant in error, it was said, that this was a new attempt to question the settled law of the land; namely, whether a bond given by the presentee to the patron, with a condition to

resign upon request, which was termed a general resignation bond, simple and unattended with any other fact or circumstance, was corrupt, simoniacal, and against the statute of Elizabeth. This had been questioned and repeatedly determined in Westminster Hall to be legal, and not simoniacal; and it was looked upon to be so well settled and established, that in Hesketh v. Gray, 28 Geo. II. the Court would not suffer the counsel to argue against the validity of such a bond. But such a bond might be abused; it might be corrupt, simoniacal, and against the statute; it might be given upon a preceding stipulation of gain, &c. or after it was innocently given, it might be used by the obligee for the purpose of withholding tithes, or deriving some pecuniary advantage to himself. And if there were only grounds to suspect such practices, a bill might be filed for a discovery; and it was admitted that when such illegal facts were alleged and proved, such a bond could not be enforced in a court of justice. But the courts of justice never interfered with possibilities. They never interfered but when such abuse appeared, and was specified and alleged in the pleadings, in order to be proved if denied. That the bishop in this case was precisely in the same predicament with the clerk in all the other cases. He had the same advantage of filing a bill for a discovery of such illegal fact, and of pleading it, when he had so discovered it; and he had it in the present case.

But the bond in the present case was a mere simple resignation bond, unattended with any such illegal circumstance; every such circumstance, suggested by a bill for a discovery, had been denied; no such abuse was specified in the first plea; and therefore

the cause therein alleged by the bishop, was not sufficient for him to refuse the clerk. That the same reasoning might be applied to the second plea,-the possible abuse of such a bond; viz. that he would have acquired, and had undue influence, power, and control over the clerk, if he had admitted him; so also as to the unfitness of the clerk. But in order for the courts to interfere, the undue influence must have happened: it must then be specified and alleged in the plea, in order for the court of justice to interfere: the unfitness in like manner must be specified and alleged, in order to be proved. But the bond in the present case was unattended with any such circumstance; and therefore neither any undue influence or unfitness was specified in the second plea to have attended the presentation; consequently the cause here alleged was not sufficient for the bishop to refuse the clerk.

As to the propriety of specifying the unfitness, it might be observed, that the judgement of the bishop was subject to review; he could not refuse ad libitum, he must assign his cause of refusal; for every fact of unfitness might be questioned, and tried in a temporal court, except literature; and that was subject to the review of the metropolitan. Upon the whole, there was no fact alleged in the pleadings of illegal use in giving the bond; or of undue influence or unfitness in the clerk to be admitted, &c., besides the mere naked giving of the bond: wherefore it was hoped the judgement of the Court of King's Bench would be affirmed.

After hearing counsel on this case, several questions were put to the Judges; seven of whom were of opinion that the bond was good and valid; and the eighth,