of a living of a certain value, and an agreement of even date was executed, reciting the bond, and declaring that the son should forthwith enter into orders, and accept such living. The Chancellor expressed great doubts as to the validity of this bond, connected as it was with a corrupt agreement for taking orders. The policy of the ecclesiastical constitution of this country requires that a man should take orders without reference to pecuniary considerations. That case, however, was decided on the ground that the son had not complied with the condition, having received the annuity for nine years, and being still only in deacon's orders, and that therefore the annuity was determinable by the father or his representatives. (')

So on a bill to be relieved against a judgment obtained on a general bond for resigning a benefice, it appeared that the obligee had made an offer to the incumbent, that if he would give him 7001, he should not be sued upon the bond. Satisfaction was ordered to be entered on the judgment, and a perpetual injunction was granted. A new bond of resignation in the penalty of 2007. was decreed, but it was ordered that no action should be brought thereupon without leave of the Court. The Lord Keeper said in this case, he did not know that such a

(*) Kircudbridge v. Kircudbridge, 8 Ves. 53.

Jury in assessing damages.

Resignation bond on request.

bond had ever been held good, except to preserve the benefice for the patron himself, or for a son, or friend of his, or to prevent the nonresidence, or to punish the vicious course of life of an incumbent, and that although a bond be to resign generally, he would never allow it to be recovered upon, unless some such reason were shown for requiring a resignation, because a door would be thereby opened for simony. (')

Where a bond was conditioned for the resig nation of a living, which the defendant when requested had refused to resign. It was held, that he being a wrong doer, the jury were not bound, in assessing the damages, to confine themselves to the diminution of the value of the advowson to the plaintiff by the defendant's life interest, nor in estimating the annual proceeds to deduct the curate's stipend. (2)

In a late leading case, however, where a general bond was given the patron to resign, when the patron should require him, such bond was held absolutely void.

The rectory of the parish church of Woodham Walton, in the diocess of London, becoming vacant, Mr. Fytche, the patron, presented his

(*) Hilliard v. Stapleton, Eq. Ca. Abr. 86. 4 Bacon's Abr. tit. Sim. C.

(2) Lord Sondes v. Fletcher, 5 Barn. and Ald. R. 835.

clerk, the Rev. Mr. Eyre, to the bishop, for institution. The bishop 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 three thousand pounds, to resign at any time upon the request of the patron; whereby the presentation became void in law. 2. 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 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 authorised 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 benefice 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 exe

cuted 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.