Special bond.

General bond.

with a condition to resign the benefice at some period, and the legality or illegality of the bond depends on the nature of the condition.

If the condition of a bond is to resign the benefice in favour of some certain person named therein, as a son, relation, or friend of either of the parties, at a particular period therein stated, it is called a special bond, and has been held valid. (1)

If the condition of a bond is to resign the benefice in favour of no particular person or persons, but whenever the patron may request or require, it is called a general bond of resignation, and according to a recent decision in the house of lords is absolutely void. (2)

Thus a bond of resignation, with a condition to resign a benefice for the patron's son to be presented, to reside on and keep the premises in good repair (3), or for the patron's nephew when he came of age, the intent being honest, or a bond given by an incumbent to a patron on presentation to reside on a living, or to resign it if he did not return to it after notice, and also

(1) Per Dampier J. In Newman v. Newman, 4 M. and Sel. R. 71.

(*) Johns V. Lawrence, Cro. Jac. 248. 274. Jones,

220. Babington v. Wood, Cro. Jac. 180. Partridge v. Whiston, 4 T. R. 395.

(3) Peele v. Capel, Str. R.

534.

not to commit waste on the parsonage, or not to be absent more than eighty days in a year from the living, is good and not simoniacal; for the patron's right of presentation is a trust coupled with an interest, and this bond is one that only secures the performance of all those duties which by law and without the bond he is bound to discharge. (1)

In the case, however, of a particular condition, such as to resign a benefice whenever an infant, kinsman, or friend, attains the age to take the living, the patron cannot carry the bond, or make use of it further than is expressed in the condition, for if the person specified dies, or never becomes qualified, he cannot compel a a resignation for any other son or relation.

as to one

part, but good as to

another.

Though the condition of a bond may be ill as Condition to one part, it may be well as to others, for at may be bad common law the bad part may be separated from the good. Thus, where it was conditioned to pay money to the obligee upon the conveyance of an estate to the obligor, and to present the obligee's son to the next avoidance of a church, the advowson of which belonged to the estate, if he were then of age to take it, or if not, to procure the person who should be presented to

(1) Bagshaw v. Bossley, 4 T. R. 81.

R 4

Annuity

to the an

resign, upon notice of the son's being qualified to take it, and to present him. It was held that admitting that part of the condition for the presentation of the obligee's son to be simoniacal, yet the bond was good for the payment of the money. (1)

And a conveyance of an advowson, though it may be void for the next presentation by reason of simony, yet may be good for the remaining interest, which may fairly be separated from the objectionable part. (2)

Any resignation or exchange for money is bond equal corrupt, however apparently fair the transaction, nual value of as where a father wishing that his son in orders the benefice should be employed in the duties of his progiven by a father for his fession, agreed to secure by bond the payment

son void.

of an annuity exactly equal to the annual produce of a benefice, in consideration of the incumbent's resigning in favour of his son. The annuity being in arrear, the bond was put in suit, and the defendant pleaded the simoniacal resignation in bar; and Lord Mansfield and the court, though they declared it was an unconscientious defence, yet as the resignation had been made for money, determined that it was corrupt and simoniacal, and, consequently, that the bond

(1) Newman v. Newman, 4 M. and Sel. 66.

(2) Greenwood v. The Bishop of London, 5 Taunt. R. 727. 1 Mash. R. 292,

was void (1), for all such contracts for money are void, and against law, contractus ex turpi causâ, and contra bonos mores. (2)

Hence, if a resignation is made for the use of another person, that is, with a condition that if one of two persons named be not admitted to the benefice resigned within six months, the resignation shall be void and of none effect. All resignations must be pure, spontè et simplicitèr, and made to the proper person, that is, to the next immediate superior, and not to the mediate, as of a church presentative to the bishop and not to the metropolitan. (3)

legal.

Bonds to resign on request were formerly held Bonds to relegal bonds (4), and the court, it is said, would sign on request fornot permit counsel to argue the validity of such a merly held bond, they having been so repeatedly established even in courts of equity (5), unless a wrong use was made of such a bond; as, for instance, the patron's preventing the incumbent from demand. ing the tithes in kind, that court would have granted a perpetual injunction against the bond(); for though it may be taken to enforce the observance

(1) Young v. Jones, E. Term, 1782.

(2) Winchcombe v. The Bishop of Winchester, Hob. R. 167. Bartlett V. Vinor, Carth. R. 252.

(3) Gayton's case, Ow. R. 12. 2 Rol. Abr. 358.

(4) Grahme v. Grahme,
1 Vern. R. 131.

(5) Peele v. The Earl of
Carlisle, 1 Str. R. 227.
(6) Durston v. Sandys,
1 Vern. Rep. 411.

Courts of Equity will look to the use made of

bonds.

of those duties which by law are required to be performed by the appointee of an office, and a good use may be made of it, so also it may be made use of for bad purposes, such as to favour the partial views of the patron, by compelling the appointee to regulate his conduct, not by the duties of his office, but in subservience to the pleasure of his patron. (1)

So where the patron on presenting a person to a living, took a bond for resigning, when the patron's nephew, for whom the living was intended, should be of age. At his coming of age, it was agreed that the presentee should continue to hold the living on paying the nephew thirty pounds a year. After having paid this seven years, the presentee refused to pay it any longer. An action being brought on the bond, the presentee filed a bill in equity, and prayed an injunction to have all the money repaid. An injunction was granted, not on account of the invalidity of the bond, but because an ill use had been made thereof. As to the money which had been paid, it being paid on a simoniacal contract, the presentee was left to his remedy at law. (2)

Again, a bond was given by a father to secure an annuity to his son, till he should be in possession