is equally obvious and practicable; the penalty of the bond of refignation may be made exceffive, much above the real value of the living; the patron may, during the incumbency of the prefentee, who executes the bond to refign, fell the next turn or right of prefentation, and at an advanced 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 prefentation to a full benefice, is in reality the fale of a vacant living. IV. Because a general bond to refign puts the person who enters into fuch bond under the power of the lay patron, inftead of being under the authority of the Bifhop, to whom he fwears canonical obedience, and whom by law he is obliged to obey, and is thus contrary to good policy, by creating an influence which tends to fubvert ecclefiaftical difcipline and fubordination. V. Becaufe general bonds of refignation are contrary to law, by altering the tenure of the office of a beneficed clergyman; for every benefice being an office for life, the patron can grant it for life only: He cannot grant it for years; he cannot grant it at the will of himfelf, for fuch grant in direct terms would be void, as contrary to the very tenure of the office; where 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 prefentee accepts, at the will of the patron, that benefice, which the law intends to be conferred and holden for life. VI. Because although a court of equity will grant relief in cafe the patron makes an improper use of a general bond to refign, yet from the extreme difficulty of difcovering 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 bad confequences that follow from fuch bonds being tolerated. The bad purpose not being difcovered, cannot be prevented but by a folemn decifion, that general bonds of refignation are illegal. VII. Because a general bond of refignation puts it in a great measure in the patron's power to convert a part of the profits of the living to his own ufe; and abfolutely 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. VIII. Becaufe B b 2 Lord Thurlow. VIII. Because a general bond of refignation is, an affurance of profit or benefit to the patron, and therefore contrary to the ftatute 31 Eliz. c. 6. and inconfiftent with the oath of Simony. I. MANSFIELD. The counsel had finished, and the order of the day being read on the caufe, Lord Thurlow rose, and in a most able and well-pointed fpeech, entered largely into the wide fpace this question comprehended, and the confequence a conclufive decifion would be to a numerous part of this kingdom; but as it prin cipally turned on a variety of cafes that had been determined in the courts below, and researches into particular niceties and points in law, we find ourfelves incapable to follow him with any hope of doing juftice to fo comprehenfive and learned an investigation-He confidered the appeal in every point of view, and for a number of reafons which he ftarted, could not but condemn the idea of a clergyman's giving a bond to his patron for any confideration, on his being prefented to a living: among many other, he fuppofed the patron to differ in fome points of religion with the established church; and with a view only of having thofe points omitted where he had a right of prefentation, he would oblige the incumbent, before he was in poffeffion of that living, to enter into a refignation bond; by this means he was entirely fubject to the patron's will, and of courfe, obliged to acquiefce in his requifitions; and for the doing of which the bishop of the diocefe had likewife an undoubted right to difpoffels him, if the incumbent continued in the doctrine, contrary to the injunction of his patron; and even here, adimitting the bond fo given, not to come within the charge of fimony, ftill the patron could undoubtedly fue for the penalty of the bond on default of a refignation, and even come upon thetythes and emoluments of that living, for the recovery of the fame the patron he confidered as nothing more than a trustee for the public, to difpofe of the living; and that thofe livings fhould not be improperly bestowed, it was very requifite there fhould be a right fomewhere to examine into the merits of the prefented, and this he thought very justly vefted in the bishoprics, but the ecclefiaftical law went even farther than this, for there was ftill a check over these, by an appeal to the metropolitan; fo that it was not in the power power of any bishop to reject a perfon, when prefented by the patron, unless he was deftitute of the qualifications neceflary for the charge he was to be entrusted with. His Lordship mentioned a number of other fimilar cafes, and urged a variety of judicious remarks to illuftrate the impropriety of fuch bonds being confidered as legal, and to defend the right reverend bishop for having in this cafe refused to admit the clerk prefented by Mr. Ffytche, as he had grounds to suppose such a bond had actually been given, and that they refused to prove the contrary; but as the decifion in a cafe of this nature was of fo material a confequence, his Lordship wished that Houfe would confider it on the moft copious grounds, and fuffer him, the judges being prefent, to take the opinion of that learned body upon a few questions he had, drawn up for that purpose, and which he hoped would prove fufficient to render every doubt that had hitherto arofe in cafes of this nature, totally impoffible in future :-his Lordship then concluded by moving his queftions to the judges, which were as follow: I. "Whether an agreement made between the incumbent on a benefice with the cure of fouls, and the patron thereof, whereby fuch incumbent undertakes to devoid the faid benefice, at the request of fuch patron, be not an agreement for a benefit to the faid patron? 2. Whether if a patron fhall prefent any parfon to any benefice with cure of fouls for or by reafon of any fuch agreement, fuch prefentation will not be void? 3. "Whether a bond given by the incumbent on a benefice with cure of fouls to the patron thereof in the fum of 3000l. defeafible only by the faid incumbent devoiding the faid benefice at the requeft of the faid patron, whether the value of the incumbency be greater or less than the faid fum of 3000l. be not a bond for fecuring a benefit to the faid patron? 4." Whether if a patron fhall prefent any parfon to any benefice with cure of fouls, for or by reafon of any fuch bond, fuch presentation will not be void? 5. "Whether the ordinary of a diocefe wherein any benefice with cure of fouls lies, be compelled in law to accept the refignation of the incumbent thereof, in cafe where the refignation fhould appear not to be spontaneous, but at the inftance of another, and under the coercion of a bond to pay money in cafe of a neglect or refufal to refign?. 6. "Whether Jow. 6. "Whether a bond given by an incumbent on a benefice with cure of fouls to the patron thereof in the fum of 3000l. defeasible only by fuch act, as afterwards to be done by the ordinary, be not a bond for the benefit of the faid patron, in respect to the contingency which fuch incumbent cannot controul? 7. "Whether, if a patron fhall present any parfon to any benefice with cure of fouls, for or by reason of any fuch laftmentioned bonds, fuch prefentation will not be void? 8. "Whether the unfitnefs of the defendant in error in the fecond plea mentioned, be alledged with fufficient certainty ? 9. "Whether the faid plea be fufficient in law to bar the defendant in error from maintaining his action? 10. "Whether the unfitness of the faid plea fet forth is traversable? 11. "Whether the excufe alledged upon this record for not admitting, inftituting, and inducting the clerk of the plaintiff, is fufficient in law? 12. Whether the bond ftated in either of the pleas is good and valid, or corrupt and void in law ?" The two latter queftions were proposed by the Earl of Mansfield in addition to Lord Thurlow's, and it was ordered that the judges fhould give their opinions on the questions on Monday fortnight. Sir John Skynner, Chief Baron of the Exchequer, delivered to the House the opinion of the twelve judges on the following queftion:-"Whether the iffue, born of a woman, after twelve months from the day of her elopement from her hufband, and living apart from him, in open adultery, fuch hufband having inftituted a fuit in the Ecclefiaftical Court, and no non-accefs proved, be, or be not a baftard?" which "That no matter of law was fubmitted to them in the propofition, and they did not think themselves competent to decide on a conclufion of facts." was, Lord Thur- Lord Thurlow went over the arguments he had used before on Bayntun's divorce bill, ftill adhering to the principle, that the House were not competent to decide upon the point of baftardy, as that was a matter of property. He defended his fentiments as to the prefumption of the child being legitimate, if the non-accefs of the bufband was not proved; and he ftated feveral cafes, and feveral acts of Parliament, to that effect; particularly thofe of the 11th of Hen. IV. and His and the 38th of Hen. III. which he said did not take away the continency of the woman, in cafe of a bastard, unless the non-accefs was proved. The learned Lord, among other circumftances, mentioned one of a woman who was married to a man, who was fo debilitated by a debauched life, as to make him incapable of generation, but who had a child. The fact of baftardy was to be fubftantiated by the evidence of the furgeon who attended him, and the non-accefs of the parties; yet when the debility was proved, that was not fuf ficient, as the hufband had been in London, where the lived, once within the year of her pregnancy; and had it not been for the bare-faced perjury of a witness brought to prove an access, the child would have been baftardized. Lordship then recapitulated what on a former day he gave as his decided opinion, that the Lords were not competent to decide on baftardy, when that baftardy included a matter of property. He then entered on the recital of the evidence. given in the courfe of the trial, and faid it amounted to this, that a husband found his wife unfaithful to his bed, and being of a foft, eafy, good-natured difpofition, he accepted with tears the ring fhe returned him, recommended her earneftly to the care of the adulterer, and fought a divorce to enable her to marry the man that had defiled his bed, and injured his honour. That he continued to live within eight miles of her, for a confiderable time after the feparation. He wished that Mr. Bayntun had put his defign in execution, of going out of the kingdoin, from the first day of fulpecting the adultery, until the time of obtaining the divorce, which would have given clear proof of the non-accefs. Earl Bathurst contended that the learned Lord's quotations Lord Ba went against his arguments; for in civil law, the child is thurt, baftardized on proof of the adultery. He contended that in this cafe, there was fufficient proof to substantiate the preTumption of non-accefs, and that there were few Lords who could take upon them to fay, that they did not believe any child born after this period would be a bastard. Bayntun's divorce bill was then ordered to be reported. There was no public business till this day. The order of the day being read for receiving the answers of the judges to the queftions put to them in the writ of error, the Bishop of London against Mr. Difney Ffytche. The |