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decision, that general bonds of resignation are illegal. That a general bond of resignation puts it [216] 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 together 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, is an assurance of profit or benefit to the patron, and therefore contrary to the statute 31 Eliz. c. 6. and inconsistent with the oath of simony.

On behalf of the defendant in error it was said (Ll. Kenyon, T. Walker), 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 is termed a general resignation bond, simple and unattended with any other fact or circumstance, be 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 and Gray, 28th Geo. II. the court would not suffer the counsel to argue against the validity of such a bond. But such a bond may be abused; it may be corrupt, simoniacal, and against the statute; it may be given upon a preceding stipulation of gain, etc. or after it is innocently given, it may be used by the obligee for the purpose of withholding tythes, or deriving some pecuniary advantage to himself. And if there be only grounds to suspect such practices, a bill may be filed for a discovery; and it was admitted that, when such illegal facts are alledged and proved, such a bond cannot be inforced in a court of justice. But the courts of justice never interfere upon possibilities; they never interfere but when such abuse appears, and is specified and alledged 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; he had the same advantage of filing a bill for a discovery of such illegal fact, and of pleading it when he had so discovered it; and had it in the present case.

But the bond in the present case was a mere simple resignation bond, unattended with any 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 alledged 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, viz. that he would have acquired and had undue influence, power, and controul 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 alledged in the plea, in order for the court of justice to interfere; the unfitness, in like manner, must be specified and alledged, 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 [217] cause here alledged was not sufficient for the Bishop to refuse the clerk.

And as to the propriety of specifying the unfitness, it might be observed, that the judgment of the Bishop was subject to review; he cannot refuse ad libitum, he must assign his cause of refusal; for every fact of unfitness may be questioned and tried in a temporal court, except literature, and that is subject to the review of the metropolitan. Upon the whole, there was no fact alledged in the pleadings of illegal use in giving the bond, or of undue influence or unfitness in the clerk to be admitted, etc. 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 writ of error, the following questions were put to the Judges, viz. 1st, Whether an agreement made between the incumbent of a benefice with cure of souls, and the patron thereof, whereby such incumbent undertakes to avoid the said benefice at the request of such patron, be not an agreement for a benefit to the said patron? 2d, Whether if a patron shall present any person to a benefice with cure of souls, for or by reason of any such agreement, such presentation will not be void? 3d, Whether a bond given by the incumbent of a benefice with cure of souls to the patron thereof, in the sum of £3000 defeasible only by the said incumbent avoiding the said benefice, at the request of the said patron, whether the value of incumbency be greater or less than the said sum of £3000 be not a bond for securing a benefit to the said patron 4th, Whether if a patron shall present any person