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66 bond

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“ the bishop, which, the bishop under those circum“ stances will probably refuse : upon his refusal, the

may in suit; and thus also, by a circuity, “ the penalty may be paid as the price of the living. “ The second mode of selling a living which is vacant,

through the medium of a general bond of resigna« tion, is equally obvious and practicable: the pe

nalty of the bond of resignation may be made ex« cessive, much above the real value of the living; “ the patron may, during the incumbency of the pre“ sentee who executes the bond to resign, sell the next

turn or right of presentation, and at an advanced price, and, after such sale, require the incumbent

to resign in terms of his bond. By this means, the “ first presentation is fi&titious; and the sale of the “ second presentation, though made under the pretence “ of selling a right of presentation to a full benefice, is, “ in reality, the sale of a vacant living. That a ge“ neral bond to resign, puts the person who enters into 66 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 is obliged to obey; and is thus, contrary to good

policy, creating an influence which tends to subvert “ ecclesiastical discipline and subordination. That “ general bonds of resignation 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

years; he cannot grant it at the will of himself, for such, in direct terms, would be void, as contrary to the very tenure of the office: where

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" there is a general bond of resignation entered into, “; the same alteration of the tenure is effected by u circuity too here: the patron grants, and the pre” sentee accepts, at the will of the patron, that bene6 fice which the law intends to be conferred and “ holden for life. That, although a court of equity “ will grant relief, in case the patron makes an impro

per use of a general bond to resign, yet, from the hos extreme difficulty of discovering the real purpose for “ which they are used, it can 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 dis“ covered, cannot be prevented but by a solemn de“ cision, that general bonds of resignation are 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 abso

lutely puts it in the power of patron and incumbent 56 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 refignation is 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 fimony."

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 is termed a general refignation bond, simple and unattended with any

6 other

“ other fact or circumstance, be corrupt, fimoniacal, " and against the statute of Elizabeth ? This had “ been questioned, and repeatedly determined in West.

minster Hall, to be legal, and not simoniacal. And “ it was looked upon to be so well settled and esta“blished, that, in Hesketh and Gray, 28 Geo. 2. the

court would not suffer the counsel to argue against “ the validity of such a bond. But such a bond may 66 be abused;

it

may be corrupt, fimoniacal, and « against the statute ; it

may be given upon a preceding stipulation of gain, &c. or, after it is innocently “ given, it may be used by the obligee for the purpose “ of withholding tythes or deriving some 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 such “ illegal facts are alledged and proved, such a bond

cannot be enforced in a court of justice. But the

courts of justice never interfere with possibilities : “ they never interfere but when such abuse appears, “ and is specified and alledged in the pleadings, in s order to be proved if denied. That the bishop in “ this case was precisely in the same predicament with « the clerk in all other cases; he had the fame advan

tage 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 refignation bond, unattended with any fuch s« illegal circumstance ; every such circumstance, sugo « gested by a bill for a discovery had been denied; no “ such abuse was fpecified in the first plea; and there. “ fore the cause, therein alledged by the bishop, was 6 not sufficient for him to refuse the clerk. That the same reasoning might be applied to the fecond plea, “ the poslible abuse of such a bond, viz. that he 6 would have acquired and had undue influence,

o fuch

power, and controul over the clerk if he had admit" ted him : so also as to the unfitness of the clerk. 66 But, in order for the courts to interfere, the undue

influence must have happened; it must then be spe6 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 present case, was “ unattended with any such circumstance; and there. “ fore neither any undue influence or unfitness was “ specified in the second plea, to have attended the

presentation: consequently, the cause here alledged was not sufficient for the bishop to refuse the clerk.

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“ And, as to the propriety of specifying the unfit“ ness, it might be observed that the judgment of the

bishop was subject to review; he cannot refuse ad : libitum ; he must allign his cause of refusal : for

every fact of unfitness may be questioned and tried “ in a temporal court, except literature; and that is

subject to the review of the metropolitan. Upon " the whole, there was no fact alledged in the plead“ ings 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 judgment 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 (Mr. Baron Eyre), that it was illegal.

After the judges had thus delivered their opinions a debate and division of the house ensued when there appearing to be, for reversing the judgment nineteen and against it eighteen. It was ordered and adjudged 30th May

1783. that the judgment given in the court of king's bench, affirming a judgment given in the court of common pleas should be reversed.

$ 77. In consequence of this determination, general bonds of resignation must now be deemed illegal and void. But the courts of law do not seem disposed to. condemn bonds of resignation unless they are exactly similar to that which was held unlawful in the above case; for, in a subsequent case, the court of king's bench held, that a bond, by which a clerk shall only bind himself to the performance of those duties, which the rules of law and the principles of morality require, is valid, and will be enforced. .

$ 78. A bond was given by a clerk to a patron, to Bagshaw v.

Bossley, reside on the living, or to resign if he did not return

4 Term Rep after notice; and also not to commit waste on the par- 78. sonage.

In an action of debt on this bond, the question was, whether it was valid or not. Vol, UI,

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