Obrázky na stránke

rity against the profligacy of the times, had been previously agreed upon as the the corruption of the people, and the condition of the presentation; that ambition of the crown.

such presentation, therefore, became Mr. Fox regarded, as one of the void in law. 2d. That by means of chief excellencies of the constitution, such bond Mr. Ffytche would have that it in:olved a renovating principle acquired an undue influence and conin itself, and by being capable of re troul over the said John Eyre, as rector peated inprovements, admitted the pof- of the said parish, and therefore the said fibility of being carried to a degree of John Eyre became an unfit person to be perfection, beyond which no human inducted into the said rectory and parih idea could go. The people were for church of Woodham Walter, by virtue putting an end to the American war of such presentation. long before it was ended; the House In Hilary term 1782, the Court of of Commons was therefore defective; Common Fleas gave judgement in fait did not speak the fenic of the peo- vour of Mr. Fiytche, which judgepie foon enough. He could by no ment the Court of King's Bench af. means fee, that by adding more knights firmed, in Michaelmas term, 1782. for the counties, the landed would The Bishop of London, therefore, overmatch the commercial interest; brought his writ of error besore the commerce had now spread itself so uni House of Peers, and stated the followverfally, that the landed and commer- ing reasons for having the judgement cial interests were inseparable.

reversed: Statement of the Writ of Error, which reral adjudged cafes upon the subject

“1. Because although there are fegerve ride is the decision of the Bhaile of of general bonds of refignation, none Lords concerning the legality of refig- of them have arisen in the same form, nation bonds. (471.)

or between parties acting in the same On the 2d of January 1781, Lewis capacity, and undercircumstances iimilar Disney Ffytche, Esq. the patron, pre- to the prefent; and, therefore, they fented the Rer. John Eyre to the Bi- ought not to be considered as precedents shop of London, for institution into by which this case is to be determined. the rectory of the parish church of II. Because the bishop, or ordiWoodham Walter, in Effex, in the dio- nary, is authorized by law to judge, in cese of London, vacant by the death the first instance, of the fitness or unfitof the Rev. Foote' Gower. 'l he Bi- ness of the person presented to him for shop, being informed that the faid inftitution; and the Bishop of London John Eyre had given his patron a bond, bas in this instance exercised his authoin a large penalty, to refign the faid rity according to law. rectory at any


patron's « III. Because it is in the power of request; and the faid John Eyre ac- the patron, by means of a general bond, knowledging that he had given such a to establish two modes of selling a bond, the Bishop refused to institute vacant living, which is fimony, either him to the living

of which are equally certain and inMr. Ffytche thereupon brought a fallible: ift, The parties may make writ of Quare Impedit, in the Court of the penalty in the bond adequate to the Common-Pieas, and in Easter term, price of the living; the presentee vihen 1981, delivered a declaration, stating inftituted may refuse to fign, and pay his right of presentation to the said the penalty without fuit: or may make living, &c.

known the execution of the bond, and To this declaration, the Bishop then tender refignation to the bishop, pleaded, ift. That a bond of resigna- which the bishop under those circumtion, under the penalty of three thou- ftances will probably refuse; upon his fand pounds, was fimoniacally and un refusal the bond may be put in fuit; la: fully executed and delivered by the and thus also, by a circuity, the penalty said John Eyre to vir. Ffytche, which may be paid, as the price of the living.

." The

time upon


“ The second mode of selling a from such bonds being tolerated. The living which is yacant, through the bad purpose not being discovered, canmedium of a general bond of refigna- not be prevented but by a solemn detion, is equally obvious and practicable; cifion, that general bonds of resignation the penalty of the bond of resignation are illegal. may be made exceffive, much above the “ Vil. Because a general bond of real value of the living; the patron resignation puts it in a great measure in may, during the incumbency of the the patron's power to convert a part of presentee, who executes the bond to the profits of the living to his own use; resign, sell the next turn or right of and absolutely puts it in the power of presentation, and at an advanced price, patron and incumbent together to make and after such fale require the incum- such partition of them as they can bent to resign in terms of his bond. By agree upon, whereby the revenues of this means the first presentation is ficti- the church may be alienated. tious, and the sale of the second pre VIII. Because a general bond of sentation, though made under the pre- resignation is an assurance of profit or tence of felling a right of presentation benetic to the patron, and, therefore, to a full benefice, is in reality the file contrary to the statute 31 Eliz. c. 6. of a vacant living.

and inconsistent with the oath of IV. Because a general bond to simony." resign puts the person who enters into May 9. The counsel having finished, such bond under the power of the lay Lord Thurlow rose, and condemned patron, instead of being under the au the idea of a clergyman's giving a bond thority of the bishop, to whom he to his


for contideration, on fwears canonical obedience, and whom being presented to a living; but as the by law he is obliged to obey, and is decision in a case of this nature was of thus contrary to good policy, by creat- such consequence, he wished the House ing an influence which tends to subvert to consider it on the most copious ecclesiastical discipline and subordina- grounds, and, therefore, proposed the tion.

following questions for the considera“ V. Because general bonds of re- tion of the judges: signation are contrary to law, hy alter " 1. Whether an agreement made ing the tenure of the office of a beneficed between the incumbent on a benefice clergyman; for every benefice being an with the cure of fouls, and the patron office for life, the patron can grant it thereof, whereby such incumbent unfor life only: he cannot grant it for dertakes to devoid the said benefice, at years; he cannot grant it at the will of the requeit of such patron, be not an himself, for such grant in direct terms agreement for a benefit to the faid would be void, as contrary to the very patron? tenure of the office; where there is a 2. Whether if a patron shall present general bond of resignation entered into, any parson to any benefice with cure of the fame alteration of the tenure is ef- fouls, for or by reason of any such fected by circuity too here: the patron agreement, such presentation will not grants, and the presentee accepts, at the be void? will of the patron, that benefice which '3. Whether a bond given by the the law intends to be conferred and incumbent on a benefice with cure of hoiden for life.

fouls to the patron thereof, in the fum “ VI. Because, although a court of of 3000l. defeasible only by the said equity will grant relief in case the incumbent devoiding the said benefice patron makes an improper use of a at the request of the said patron, whegeneral bond to resign, yet from the ther the value of the incumbency be extrenie difficulty of discovering the greater or less than the said fum of real purpose for which they are used, 3000l. be not a bond for securing a it can feldoın be possible to procure benefit to the said patron? such relief, or to guard by that means 4. Whether if a patron shall present against the bad consequences that follow any parfon to any benefice with cure of


patron shall

fouls, for or by reafon of any such

“ II. That if the patron present bond, such presentation will not be for, or by reason of, such an agreevoid?

ment, the presentation will not be void Whether the ordinary of a “ III. That giving such a bond diocese wherein any benefice with cure does not secure a corrupt or illegal of fouls Fies, be compelled in law to benefit to the patron, being only inaccept the resignation of the incumbent tended to enforce the resignation of the thereof, in cale where the resignation benefice, and that the being obliged to Mhould appear not to be spontaneous, have recourse to the penalty of the but at the instance of another, and under bond will be no benefit to the patron the coercion of a bond to pay money within the intent and meaning of the in case of a neglect or refusal to resign? statute. “ 6. Whether a bond given by an

“ IV. That if the patron present incumbent on a benefice with cure of to a benefice for, or by reason of, such Touls, to the patron thereof in the sum bond, such presentation will not be void. of 3000l. defeasible only by such act,

“V. That it not being a queftion as afterwards to be done by the ordi- made in the courts below, nor ever nary, be not a bond for the benefit of argued at their lordships' bar, they beg the faid patron, in respect to the con

leave to decline giving any opinion tingency which such incumbent cannot upon it. ccntrou!?

“ VI. That whether the incumbent 7. Whether, if a


can compel the ordinary to accept of fent "any parfon to any benefice with the resignation or not, it is not a corcure of fouis, for or by reason of any rupt benefit to the patron. {uch laft-mentioned bonds, such pre " VII. Answered by what is said fentation will not be void?

to the 4th question. “ 8. Whether the unfitness of the VIII. "That the unfitness of the defendant in error in the second plea defendant is not alledged with sufficient mentioned be alledged with fuficient certainty. certainty?

“IX. That the plea is not fufficient “9.

Whether the said plea be sufficient in law to bar the defendant in error. in law to bar the defendant in error “ X. That the unfitness, as set forth from maintaining his action?

in the plea, is not traversable. " 10. Whether the unfitness of the “ Xl. That the excuse alledged said plea set forth is traversable?” upon this record for not admitting,

Two more were added by Lord instituting, and inducting the clerk, is Mansfield:

not sufficient in law. 11. Whether the excuse alledged

« XII. That the bond stated in the upon this record for not admitting, pleas is good and valid in law." inftituting, and inducting the clerk of

Mr. Baron Perryn. the plaintiff is sufficient in law?

“ I. It is a benefit, but not corrupt 12. Whether the bond stated in within ftat. of 31 Eliz. ch. 6. sect. 5: either of the pleas is good and valid, “IL Such presentation will not be or corrupt and void in law?"

void within the intention and meaning May 26. "The Judges gave their of faid statute. opinions on these questions, which “ III. I think it is a bond for sewere as follow:

curing a benefit to the patron. Mr. Justice Heath, Mr. Justice Buller, “ IV. Iam of opinion, that notwith

Mr. Justice Nares, Mr. Justice Willes, ftanding a patron does present by reason
Mr. Juttice Gould, and the Lord of such bond, such presentation will
Chief Baron of the Court of Exche- not be void.

“ V. I am of opinion the ordinary " 1. That the agreement stated in is compellable to accept the resignation this case is not an agreement for the in the case stated, unless he can sew a benefit of the patron within the intent simoniacal or corrupt agreement, or and meaning of the statute,

other sutiicient cause, to the contrary.

[ocr errors]

VI. Whether the incumbent can (Dr. J. Moore) faid that notwithstandor cannot controul in the cases stated, ing what had fallen from the learned I think such a bond is a benefit, but Judges, he was dissatisfied with the not a corrupt one, within the meaning judgement of the courts below. He of ftat. 31. Eliz.

had, on enquiry many years ago, form“ VII. I am of opinion, if a patron ed an opinion that the determinations, does present for, or by reason of such one in the 8th of James I. and the laft-mentioned bond, fuch presentation other in the 5th of Charles I. were not will not be void.

fo well founded as they ought to have In answer to the 8th, 9th, and 10th been, and yet they were the precequestions, on the second plea, I am dents which the courts had implicitly of opinion that the unfitness of the de- followed, whenever general bonds of fendant in error in the second plea resignation had been brought into mentioned, is not alledged with fufi- queition. Such bonds were directly cient certainty in law to bar the defend- contrary to the letter of the act of the ant in error from maintaining his 31st of Eliz. as it was hard to conceive action, and that the unfitness in the how a presentee could give a bond of faid plea set forth is not traverfable. resignation to a patron, in any sum,

“ In answer to the 11th and 12th by way of penalty, from which the questions, I am of opinion that the ex- patron must not derive some benefit, cuse alledged upon this record for not either directly or indirectly. But if admitting, inftituting, and inducting not contrary to the letter, they were the clerk of the plaintiff is not fuffi- certainly contrary to the spirit of the cient in law; and that the bond stated act, fince, if they were held good and in the pleas is good and valid in valid in law, every part of the act law."

might be evaded with the utmost ease. Mr. Baron Eyre.

Such bonds placed the obligee in a fi“ I. That it is an agreement for a tuation very improper for the minister benefit.

of a parish. They enabled the obliII. That it does devoid the pre- gator to turn a man out of his freehold, sentation.

without any trial or sentence whatever: “ Ill. That the bond is a benefit. and laitly, they might be made use of

“ IV. That it does devoid the pre- to the most mischievous purposes, 10 fentation.

the prejudice of religion, and disturbo - V. Not answered.

ing the public peace. Great reverence “ VI. Assuming that the bishop may

was due to such decisions of our courts refuse it, is a benefit in respect, &c. as had been uniform and long acqui

VII. Assuming, &c. it does de- esced in; but if, in after times, great void the presentation.

inconveniences thould arise from per“ VIII. The unfitness not alledged filting in such determinations, and with sufficient certainty.

none from departing from them, it IX. The plea not sufficient in was obvious what their lordships ought law, &c.

to do. No inconveniences would arise X. The unfitnefs in the second from reverfing the judgement in the plea set forth, not traversable." present case, or if any were apprehend

XI. The excuse in the first plea is ed, they might be obviated by a short sufficient.

bill; on the contrary, great adva “ XII. The excuse in the second tages would be instantly felt, as it plea is not sufficient. Upon these would promote religion, learning, orpleadings it is not competent for the der, decency, discipline. plaintiff in error to object to the vali The Bishop of Salisbury (Dr. Bar. dity of the bonds stated in the plead- rington) also contended that bonds of ings, and therefore they are to be taken refignation were acts of a fimoniacal to be good and valid, and not corrupt nature and tendency, and confequentand void in law."

dy pernicious in the church. May 30. The Bishop of Langor The Bishop of Llanda:f (Dr. Wat




fon) thought the question imported porizing Christianity, were two great both the interests of the established inconveniences, to call them by ns church, and the general interests of harther appellation, which would atChristianity. With respect to the esta- tend the legality of general bonds of blished church, its revenues might be resignation. But the matter, it was very materially injured by the decision. argued, was not a res integra; there 'Though the proportion, in which that had been in the course of above 200 revenue was distributed among the years many adjudged cases, and it was clergy, might admit an improvement necessary to adhere to precedents. Preconducive alike to the good of religion cedents might be obligatory in the and the welfare of the state, no one courts in which they were established, would think that the whole revenue, and might there be useful in expeditaken in the grofs, was more than suf- ting processes, and easing the subject ficient for the proper maintenance of froin that great and unavoidable burthe established church: it could not then, the uncertainty of the law; but without danger to the civil commu- their operation ought not to extend benity admit of any diminution. But yond those courts, and least of all into the legality of general bonds of relig- the House of Lords; and whatever prenation, if once established, would have scription inight have established cona direct tendency to diminish that re- cerning the question in the courts be

No sooner would it be gene- low, it was undoubtedly new in that rally known, but pettyfoggers of the House, unshackled by any precedent, law, money-fcriveners, land-furveyors, as not one of the kind was to be found and all the simoniacal jobbers of eccle on the journals. They were, therefiaftical property, would conspire with fore, to give judgement on the legal necdy patrons and with more needy merits of the question, as if it had clerks, to invent and execute a thou never been decided in the courts befand collufive plans to rob the church low. To this inveftigation he conof that patrimony, which the pious felled himself unequal, but it was wisdom of their ancestors had annexed sometimes useful to know how the peto it. As the question respected the rufal of a statute struck a plain unpropurity of our holy religion, general fessional man. In that House, by difbonds of resignation put the ministers, fuse and elegant orations on different who submitted to them, into a tiate of sides of the fame question, his underdependence and apprehenfion, incon- ftarding had been often so bewildered, fiflent with their situation as preachers and his judgement so perplexed, that of the Gospel. Even in the primitive he had not been able to come at any ages of the Christian church, when the conclufion, till he had divested the decivil

power not only denied it pro bete of all its ornament, and inveftitection, but lifted the arm of perfecu- gated the matter by the dry principis tion again't it, a minister who was of fcholaftic reasoning. He would, maintained by the eleemofynary col- therefore, fum up what he had to oblections of his congregation was not serve on the 31st of Eliz. and the 12th in fo precarious, dependent, and im- of Queen Anne, in that dry way. proper a fituation, as from the legality That practice cannot be conformable to of general bonds of resignation, the the spirit and meaning of an act of clergy of the present time would be; parliainent, which entirely frustrates the because his support did not depend on intent and purpose of that act; but the caprice of some one flagitious indie general bonds of resignation entirely vidual, who might be offended by the frustrate the intent and purpose of both evangelical freedom of his discourse, statutes; and therefore cannot be con. but upon the good sense of hundreds formable to the spirit and meaning of of well-dispofed Christians, who felt these fiatutes. Suppose a living vathemselies edihed thereby. The alie. cant, the value of the next presentanation of the church revenue, and the tion five thousand pounds; the patron introduction of a spurious, timid, tem- by 3ift Eliz. Cannot sell this presen


« PredošláPokračovať »