avoidance or presentation to any benefice, &c., and shall be presented or collated thereupon, that every such presentation or collation shall be utterly void and of no effect in law; and such agreement shall be deemed to be a simoniacal contract; and it shall be lawful for the queen's majesty, her heirs and successors, to present or collate unto such benefice, &c. for that time or turn only. And the person so corruptly taking, procuring, or accepting such benefice, &c. shall, from thenceforth, be adjudged a disabled person to have and enjoy the same, and shall be subject to any punishment, pain, or penalty prescribed or inflicted by the laws ecclesiastical, in like manner as if such agreement had been made after such benefice, &c. had become vacant.

nions, 409.

73. It has been doubted whether the purchase of an advowson in fee by a cleygyman, and a presentation of himself upon the death of the incumbent, be within this statute. It appears, from an opinion of the late Mr. Fearne, that he did not con- Cases and Opisider such a purchase as prohibited by that statute, and that a presentation by a trustee of such a purchaser, of the purchaser himself, might be made. This opinion is supported by Lord Chief Justice De Grey's argument in the case of Barrett v. Ante, s. 71. Glubb, in which he distinguished between a purchase of the next presentation to a church, and a purchase of an advowson in fee; for, in the first case, he admitted that a purchase would be simoniacal, if the incumbent was in extremis; whereas in the in the second case he held it good.

Vide Paley's
Philosophy,
B. III. c. 20.

3 Burn. Ecc.L.

74. An incumbent of a living may resign it to the ordinary; Resignation, or if it be a donative, to the patron, in which case it becomes 302.

vacant.

75. A collateral condition cannot be annexed to a resignation, Idem. the words being pure spontè absolutè et simpliciter, in order to exclude all indirect bargains, not only for money, but for any other valuable consideration; except it is made for effecting an exchange, in which case it admits of this condition, viz. that the exchange shall take full effect.

76. A resignation of a benefice is not valid until it is expressly Idem 305. accepted by the ordinary, and it has been long settled that the ordinary may refuse a resignation.

77. By the 31 Eliz. c. 6. s. 8. it is enacted, that if any incumbent of any benefice with cure of souls shall corruptly resign or exchange the same, or corruptly take for or in respect of the

Bonds of resignation.

rence, Cro. Jac.

248.
12 Mod. 504.

1 Eq. Ca. Abr.

resigning or exchanging the same, directly or indirectly, any pension, sum of money, or other benefit whatsoever; as well the giver as the taker of any such pension, sum of money, or other benefit corruptly, shall lose double the value of the sum so given, taken, or had; half to the queen, and half to him that shall sue for the same in any of her majesty's courts of record.

78. It has been long a common practice for patrons, when they present a clerk to a living, to take a bond from him in a sum of money, conditioned either to resign the living in favour of a particular person, as a son, relation, or friend of the patron, whenever such son, &c. becomes capable of taking the living, or Johns v. Law else to resign generally, upon the request of the patron. In the first case they are called special bonds of resignation, and [until a recent determination (a) which will be noticed in a subsequent 86. Str. 534. section, a very general opinion prevailed that they were] valid. In the second case they are called general bonds of resignation; and were never approved of by the bishops, though in some cases held to be valid by the courts of law and equity. But whenever they were used for the purpose of obtaining any pecuniary anvantage from the person presented, the Court of Chancery always interposed and granted an injunction against them.

Babington v.
Wood, Cro.
Car. 180.

3 Bing. 506.
Durston, v.
Sandys.
Hilliard v.
Stapleton,
1 Ab. Eq. 86.

Compl. In

cumb. 30.

Ep. London

V.

Fytche,

2 Bro. Parl. Ca. 211.

79. Dr. Watson observes that general bonds of resignation did not find any enconragement from the Court of Chancery, which relieved the incumbent; and would not oblige him to resign, or to pay the penalty of the bond, unless some special cause were shewn and made out by the patron that he was unqualified to hold the living, or guilty of some immorality or irregularity, which was a sufficient cause of deprivation; or at least that he was non-resident, and neglected his duty. But in the following case it was determined by the House of Lords, that where a clerk, upon being presented to a living, entered into a general bond to the patron to resign whenever the patron should require him, such bond was absolutely void.

80. The rectory of the parish church of Woodham Walton, in the diocese of London, becoming vacant, Mr. Fytche, the patron, presented his clerk, the Rev. Mr. Eyre, to the bishop, for Peyton, 18Ves. institution. The bishop being informed that Mr. Eyre had given his patron a bond in a large penalty, to resign the said rectory

Dashwood v.

27-37.

(a) [Fletcher v, Lord Sondes, 3 Bing. 501. Infra, s. 64.]

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, judgment 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 other 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 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 beneficial 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. 2. 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 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.

cases.

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 controul 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;