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 toge ther 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 sta tute 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; 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. 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.

He had the same advantage

But the bond in the present case was a mere simple resignation bond, unattended with any

S

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; namely, 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 judgment 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, 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. A debate and division of the house ensued, when there appearing to be for reversing the judgment nineteen, among whom were all the bishops present, and against it eighteen, it was ordered that the judgment given in the court of King's Bench, affirming a judgment given in the court of Common Pleas should be reversed. (')

Although general bonds of resignation, since this decision, may be called illegal, unless such bonds are precisely similar to the bond in the case above recapitulated, it is presumed courts of law would incline to follow a long established series of precedents, and in general not feel very strongly against bonds of resignation. (2)

() Bishop of London v. (2) Bagshaw v. Bossley, Fytche. 2 Bro. Parl. Ca. 811. | 4 T. R. 79. Partridge v. Cruise's Dig. tit. 21. Adv. 79. | Whiston, 4 T. R. 359.

Plea of occupiers against simoniack.

Notwithstanding there is no remedy for the tithes which a simoniacal incumbent has actually received, yet in an action for treble damages the occupiers may plead the plaintiff no parson, because of the simony; or the parishioners may deny their tithes, and allege in the spiritual court that he came in by simony. (1)

(*) 1 Inst. 120. Stukely v. Butler, Hob. R. 168.