"the bishop, which, the bifhop under thofe circum"stances will probably refuse: upon his refusal, the "bond may be put in fuit; and thus alfo, by a circuity, "the penalty may be paid as the price of the living. "The fecond mode of felling a living which is vacant, through the medium of a general bond of refigna❝tion, is equally obvious and practicable: the pe"nalty of the bond of refignation may be made ex 30 ceffive, much above the real value of the living; "the patron may, during the incumbency of the pre"fentee who executes the bond to refign, fell the next "turn or right of presentation, and at an advanced 66 price, and, after fuch fale, require the incumbent "to refign in terms of his bond. By this means, the "first presentation is fictitious; and the fale of the "fecond prefentation, though made under the pretence "of felling a right of presentation to a full benefice, is, "in reality, the fale of a vacant living. That a ge"neral bond to refign, puts the person who enters into "fuch bond under the power of the lay patron, instead "of being under the authority of the bishop, to whom "he fwears canonical obedience, and whom, by law, "he is obliged to obey; and is thus, contrary to good "policy, creating an influence which tends to fubvert "ecclefiaftical difcipline and fubordination. That general bonds of refignation are contrary to law, by altering the tenure of the office of a beneficed clergy"man: for, every benefice being an office for life, "the patron can grant it only for life: he cannot 66 grant it for years; he cannot grant it at the will of "himself, for fuch, in direct terms, would be void, as contrary to the very tenure of the office: where "there 66 "there is a general bond of refignation entered into, the fame alteration of the tenure is effected by "circuity too here: the patron grants, and the pre"fentee accepts, at the will of the patron, that bene"fice which the law intends to be conferred and "holden for life. That, although a court of equity "will grant relief, in case the relief, in case the patron makes an impro per use of a general bond to refign, yet, from the "extreme difficulty of discovering the real purpose for "which they are used, it can feldom be poffible to procure fuch relief, or to guard, by that means, "against the confequences that follow from fuch bonds "being tolerated. The bad purpose not being dif "covered, cannot be prevented but by a folemn de cifion, that general bonds of refignation are illegal. "That a general bond of refignation puts it in a great "menfure in the patron's power to convert a part of "the profits of the living to his own ufe, and abfo lutely puts it in the power of patron and incumbent "together to make fuch partition of them as they can "agree upon, whereby the revenues of the church may be alienated. And, that a general bond of re"fignation is an affurance of profit or benefit to the patron, and therefore contrary to the statute 31 Eliz. c. 6. and inconfiftent with the oath of fimony." On behalf of the defendant in error, it was faid, "that this was a new attempt to question the settled "law of the land; namely, whether a bond, given ઉં "by the prefentee to the patron, with a condition to "refign upon request, which is termed a general re«fignation bond, fimple and unattended with any ❝ other "other fact or circumftance, be corrupt, fimoniacal, "and against the ftatute of Elizabeth? This had "been questioned, and repeatedly determined in West "minster Hall, to be legal, and not fimoniacal. And "it was looked upon to be fo well fettled and efta" blished, that, in Hesketh and Gray, 28 Geo. 2. the "court would not fuffer the counfel to argue against "the validity of fuch a bond. But fuch a bond may "be abused; it may be corrupt, fimoniacal, and "against the statute; it may be given upon a preced"ing ftipulation of gain, &c. or, after it is innocently ❝ given, it may be used by the obligee for the purpose "of withholding tythes or deriving fome pecuniary "advantage to himself. And if there be only grounds "to suspect such practices, a bill may be filed for a "discovery; and it was admitted, that, when fuch illegal facts are alledged and proved, fuch a bond cannot be enforced in a court of justice. But the "courts of justice never interfere with poffibilities: they never interfere but when fuch abuse appears, " and is fpecified and alledged in the pleadings, in "order to be proved if denied. That the bishop in "this case was precisely in the fame predicament with "the clerk in all other cases; he had the fame advan 66 tage of filing a bill for a discovery of fuch illegal fact, and of pleading it when he had so discovered "it; and he had it in the prefent cafe. "But the bond in the prefent cafe was a mere « simple refignation bond, unattended with any fuch "illegal circumftance; every fuch circumftance, fug"gested by a bill for a discovery had been denied; nơ * fuch "fuch abufe was fpecified in the first plea; and there"fore the caufe, therein alledged by the bishop, was "not fufficient for him to refuse the clerk. That the "fame reasoning might be applied to the fecond plea, "the possible abuse of such a bond, viz. that he "would have acquired and had undue influence, 66 power, and controul over the clerk if he had admit❝ted him: fo alfo as to the unfitnefs of the clerk. "But, in order for the courts to interfere, the undue " influence must have happened; it must then be spe"cified and alledged in the plea, in order for the "court of justice to interfere: the unfitness, in like "manner, must be specified and alledged in order to "be proved. But the bond, in the prefent cafe, was "unattended with any fuch circumstance; and there"fore neither any undue influence or unfitness was "specified in the fecond plea, to have attended the "presentation: confequently, the caufe here alledged was not fufficient for the bishop to refuse the clerk. ઃઃ And, as to the propriety of specifying the unfit"ness, it might be observed that the judgment of the bishop was fubject to review; he cannot refufe ad "libitum; he muft affign his cause of refufal: for ce every fact of unfitnefs may be queftioned and tried "in a temporal court, except literature; and that is fubject to the review of the metropolitan. Upon "the whole, there was no fact alledged in the plead"ings of illegal ufe in giving the bond, or of undue "influence or unfitnefs in the clerk to be admitted, c. befides the mere naked giving of the bond: "wherefore it was hoped the judgment of the court of " king's bench would be affirmed."-After hearing counsel on this cafe feveral queftions were put to the judges, feven of whom were of opinion that the bond was good and valid and the eighth (Mr. Baron Eyre), that it was illegal. After the judges had thus delivered their opinions a debate and divifion of the house enfued when there appearing to be, for reverfing the judgment nineteen and against it eighteen. It was ordered and adjudged that the judgment given in the court of king's bench, affirming a judgment given in the court of common pleas fhould be reversed. § 77In confequence of this determination, general bonds of refignation must now be deemed illegal and void. But the courts of law do not seem disposed to condemn bonds of refignation unless they are exactly fimilar to that which was held unlawful in the above cafe; for, in a fubfequent cafe, the court of king's bench held, that a bond, by which a clerk fhall only bind himself to the performance of those duties, which the rules of law and the principles of morality require, valid, and will be enforced. § 78. A bond was given by a clerk to a patron, to refide on the living, or to refign if he did not return after notice; and alfo not to commit waste on the parfonage. In an action of debt on this bond, the question was, whether it was valid or not. VOL. III, E Lord 30th May 1783. Bagfhaw v. 78. |