1811.

DASHWOOD

v.

PEYTON.

be promoted, to a See: an Attempt by thus defeating the King's Right to appoint to the Benefice, vacated by that Promotion, to impose Restraint upon the Exercise of that Branch of the Prerogative, by which His Majesty controuls the Appointment to that important Trust; involving Duties, the proper Discharge of which is of the most essential Importance to the Public. Upon these Grounds a Court of Equity will not permit this Bond to have Effect; if it could be enforced at Law; and upon such Subjects, though there might be a Defence at Law, there is a concurrent Jurisdiction: Hanington v. Du Chatel (a).

The Plaintiff takes under the Will by Implication, as in the Cases of Roe on the Demise of Randale v. Summerset (b). Bibin v. Walker (c), and Poulson v. Wellington (d). In the last a mere Recital of the Consequence, if no Appointment should be made, was held a sufficient Indication of the Intention to give the Subject. There is no Direction, that a Bond shall be taken from the Plaintiff. That is confined to the Heighams, or the other Person, to be presented in the Interval. The Plaintiff, entitled to be presented, free from any Obligation, was induced to give the Bond under a direct Misrepresentation by the Letter of the Trustee, that there was no Alternative; that they were bound to require a Bond, not only for Resignation, but also not to accept a Bishopric. With this clear Implication the Will of Sir Henry Peyton imposes a Case of Election on his eldest Son by a Forfeiture of the devised Estates, if he should not secure the Presentation of Algernon Peyton to the Living; and by taking the Suffolk Estate the eldest Son made his Election; and must comply with all the Terms.

(a) 1 Bro. C. C. 124.

(c) Amb. 661.

(b) 2 Black. 692. 5 Bur.

(d) 2 P. W. 533.

2608.

Sir Arthur Piggott, Mr. Richard's, and Mr. Johnson, for the Defendants.

The Plaintiff has no Claim under the Will of Sir Thomas Peyton: the Event described by that Will not having happened. Upon the Will of Sir Henry Peyton it is impossible to raise a Case of Election, or by any fair Construction to say, that the Testator has given the first Presentation of this Living to the Plaintiff. Upon the Form of the Trust, as it appears in the Will and Codicil, it is consistent to suppose, that the Testator acted under a false Impression, that his Uncle had put the Presentation out of his Controul; and, supposing the Plaintiff thus provided for, he proceeds to his own Objects. Who can say, that, independent of that Mistake his Intention was to give this Living to his Brother? No such Intention is to be collected from the Will; and a Court of Justice cannot venture thus to make a Will for him; by Implication merely from that Mistake inferring an Intention to give; raising a Case of Election.

Sir Samuel Romilly, in Reply.

There is no such Distinction, that there may not be a Devise by Implication, when it is to be made effectual upon the Doctrine of Election, farther than that the Presumption is against the Intention to dispose of the Property of another: but, if a necessary Implication appears in a Will to operate upon Property, which is not the Testator's, the Effect through the Medium of Election is the same as a Disposition of his own Property. The Doctrine of Election is no more than this: if the Court sees clearly the Intention to dispose of the Property of another, to whom something is given by the Will, he must, if he will take the Bounty, comply with the Condition

D 2

1811.

DASHWOOD

0.

ΡΕΣΤΟΝ,

Condition by giving up his own Property (a). The Ques tiou is merely upon the Intention: did the Party mean to dispose of the Property, which was not his? If that Intention appears by necessary Implication, the Effect is the same as if expressed in Terms. In this Will such Intention appears very clear, by the Means, adopted for securing the Presentation of Algernon, providing indirectly for that of the Plaintiff also. Seeing that Intention so to dispose of this Property the Court must have Recourse to the general Principle, on which the Doctrine of Election stands; and the Effect is exactly the same as if this was Property, over which the Testator had compleat Dominion.

The Lord CHANCELLOR.

This Motion is made under very particular Circumstances; and though I should have wished, before I decided, to look into the Authorities upon the Doctrine as to the Effect of Recital, founded in Mistake, with or without Words denoting Wish, yet with reference to the Nature of the Property I think it better not to delay the Determination.

Independent of the Circumstances, arising out of the Will, this is the Case of a Presentation of a Person, who upon that Presentation has given a Bond of Resignation in Favor of a particular Individual and a Bond never to accept a Bishopric; and, supposing the Case had brought forward more distinctly the Objection, the Ground of it is to be considered in different Views.

In the Case of The Bishop of London v. Fytche (b),

(a) See the last Case of Election, Thellusson v. Woodford, Ante, Vol. XIII, 209,

and the References.

(b) 1 Bro. C. C. 96. Cunningham's Law of Simony.

the

1811.

DASHWOOD

PEYTON.

bad.

the House of Lords held, that a general Bond of Resig nation is bad. That Case was not followed in the Court of King's Bench with reference to a Bond to resign in Favor of a particular Individual, the Son or Nephew of the Person, to whom that Obligation was made. In that General Bond Case it was said to have been repeatedly decided at Law, of Resignation that a general Bond of Resignation is good; but I believe of a Living it will be found, that the Lord Chancellor, or that Judge, who against the Opinion of the other Judges held a general Bond of Resignation to be positively bad, denied, that such Bond had been held good in any Instance; and stated, that a Search would produce that Result. It is very difficult also upon the Pleadings in The Bishop of London v. Fytche (a) to reconcile the Distinction between general and particular Bonds of Resignation with the Principle, on which the House of Lords made that Decision. It would not however become me, having regard to what is the present State of the Law on this Subject, to interpose in a Court of Equity on the Ground, that this is a particular Bond of Resignation; as, though I agree, that this Court, if, it has a concurrent Jurisdiction, is not bound to wait for the Decision of a Court of Law, yet reasonable Caution requires a Court of Equity not haștily to pronounce, bad a Bond, understood to be good at Law; and it would at least be proper to leave that Question to be reconsidered at Law.

I make this Observation with another View. If the particular Bond is bad, it is so either from Motives of public Policy, or as being understood to be bad either by Statute or the Common Law. Admitting the Cases of Relief, afforded to a Particeps Criminis, there is considerable Doubt, upon Grounds of public Policy, whether it is possible for a Clergyman to come here, stating, thất

(a) 1 Bro. C. C. 96. Cunningham's Law of Simony.

1811.

DASHWOOD

0.

PEYTON.

he had given a general, or particular, Bond of Resignation, and on the Ground, that such Bond was bad, calling on the Court to enable him to hold the Living, discharged of the Obligation under the Bond. In the Case of The Bishop of London v. Fytche the Living and the Bond went together: the Clergyman lost his Living; and his Bond was held good for nothing: in other Cases the Ground of Relief was, that a bad and vicious Use was made of the Bond: but I doubt, whether this is a proper Ground of Relief; and with regard to the other Ground of public Policy, the Engagement not to accept a Bishopric, that, if a Ground in Equity, is equally so at Law. I admit the concurrent Jurisdiction: but, knowing, that there are in Fact many such Bonds, I should wish to receive Information as to the Law on that Head, before I set aside this Bond in Equity on that Ground; being extremely unwilling to interpose against that, which in Habit and Practice, it is notorious, very constantly takes place.

Supposing the Court cannot interpose on either of those Grounds, another Ground is taken by the Plaintiff; not. disputing the Legality of the particular Bond, and his Engagement not to accept a Bishopric, he insists upon his Right to have this Living, as an Interest by Devise, standing upon Implication, or the Doctrine of Election, given to him purely and without Condition; that Terms are imposed on him, which ought not to be imposed; that the Nature of the Transaction was not Dealing, Treaty, and Bargain; but it is a Transaction, in which to a Man, having the Right, though not aware of it, this Presentation was held out as a Favor; and with that Conception, that there was no Right, or Demand, under that common Mistake, the Presentation was clogged with a Condition, obliging him to give up the Living; whereas he ought to have it, as all Benefices are by the Policy of the Law

held,