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within the diocese of the lord bishop of Oxford. and that divine service and other ecclesiastical duties have immemorially been performed in the said church, by a chaplain or curate, in priest's orders nominated and appointed by the inhabitants of the said township, or the major part of them, and that such nomination was confirmed by a certain deed of agreement about the year 1428, between the then vicar of the parish of Ambrosden, and the inhabitants of Piddington; confirmed by the decretal order of the then diocesan. By which deed it was provided the said inhabitants should have one curate continually, resident in the said township of Piddington, chosen as aforesaid, who should at all times thereafter wholly receive all the tythes real or personal, greater, lesser, or small, and all other emoluments and profits, &c.; by what name soever called, due from the inhabitants of the said township to the vicar, in lieu whereof the inhabitants were to pay to the vicar 20s. a year. A meeting of the inhabitants took place on the 9th of September following; in order to nominate another curate, when Mr. Pea son having been nominated by a majority of the inhabitants, applied several times to the bishop for a licence, which the latter refused to grant, declaring that he thought it simoniacal. Upon which the inhabitants abandoned the said nomination and appointment of the said Mr. Pearson, and afterwards at another meeting, which was numerously attended by the inhabitants; the Reverend Isaac Knipe being a clerk in priests orders, was unanimously elected to the curacy of the said township of Piddington, who afterwards applied to the bishop for his licence, and was refused. It was further stated, that an action for simony commenced in the court of King's Bench, against several of the inhabitants in 1802, brought by Mr. Matthews (who had been nominated to the

1806.

The KING

versus

BISHOP of Ox

-FORD.

1806.

The KING versus

BISHOP of Ox

FORD.

curacy by the crown,) in which the latter was nonsuited at Oxford in 1803.

The affidavits on the part of the defendant stated that in June, 1801, when the meeting of the inhabitants took place after the vacancy, the bishop was entirely ignorant of the rights of the curate, and was informed that the salary was a fixed sum of 401. and that it was so settled by the Piddington inclosure act. That the bishop under such ignorance of the rights of the curate expressed his approbation of raising the salary to 701. a year. That he afterwards found that the curate of P. by an endowment in the year 1428, the curate was entitled to all small tithes, and in consequence thereof, such right was expressly reserved by the aforesaid act of parliament, and that in the survey returned into the exchequer in the time of Queen Anne the curacy was valued at 411. 7s. 8d. and at nearly the same amount as the vica rage of Ambrosden. That Mr. Stokes the other candidate with Mr. Pearson refused to sign the agreement as simoniacal in agreeing to except 701, per annum, in lieu of small tithes, in consequence of which refusal Mr. Pearson was nominated without opposition; that the inhabitants afterwards offered to give up the agreement proposing that Mr. Pearson should be bound in honour by it; to which the bishop gave his positive negative, saying that he considered it his duty hot to licence any person who was not perfectly free to assert his rights. That in consequence of this agreement that the nomination had been simoniacal and void andthe right of nomination vested in the king, who nominated the Rev. Mr. Matthews on the 1st of July, 1805, to whom the bishop granted his licence.

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The case was argued by WILLIAMS, Serjt. MILLES and MANLEY, in support of the rule, and Sir V. GIBBS and ABBOTT è contrà, when the only question made was,

whether the agreement with the curate made by the inhabitants was simoniacal.

4

1806,

The KING

versus

FORD,

Lord ELLENBOROUGH, C. J." In considering BISHOP of O whether this be simoniacal we may look only to the agreement and to the act of parliament; and it is not necessary to state the words of it particularly, but at the time of making it there had been recently before, about four years previous, an agitated question with the parish, not then settled, as to the right to small tythes. When the parish next come to exercise their right of presentation, they bargain with the curate for an advance of salary upon an agreement which is in effect to bar him from exercising his right to claim the tythes, and which as far as respects his successor was to remain as evidence that this was an immemorial payment. The question is then whether this is not a benefit to the party presenting, and if by the agree. -ment the party is barred from making such further claim, there is no doubt that it is a benefit within the statute 31 Eliz. c. 6, s. 5, it is therefore simoniacal, and the right of presentation of course devolves to the Crown.

The rest of the court concurring with his lordship,
The RULE was discharged with Costs,

GOULD against HOLMSTROM.

Bail in error are as no bail if there be an exception against them' Bail, Error, and the defendant in error non prosses the writ of error for want Practice. of justification. He therefore cannot proceed against them,

RULE to shew cause why an exoneretur should not

be entered on the bail piece of the bail in error, and proceedings against them be staid. Judgment in the original action against the defendant Holmstrom,

C

1806.

GOULD

versus

at the suit of Gould was obtained in Trinity term last, the bail in that action were one Ford and one Eng strom. A writ of error was sued out the 16th of July, HOLMSTROM. 1805, and on the 20th of July, Daniel Pitt and Thomas Gerrard, were put in as bail. On the 24th a rule for better bail was served which operates as an exception to the bail, they gave notice to justify, as in the next term Michaelmas 1805, and on the 20th of January no further proceedings being had, the writ of error was nonprossed for want of justification of bail. The question was whether the plaintiff had not a right to proceed against the bail.

PARK and BowEN shewed cause and cited Jones v. Tubb,* Fulke v. Bourke,+ and Waller v. Green, and contended that when once bail were put in, they were pever exonerated unless better bail were put in.

Sir V. GIBBS, contrà. "No bail in error were requisite till the statute 17 Car. II. c. 8. s. 3; that statute could not operate as to this cause till Michaelmas term when it would appear whether the bail justified, consequently the plaintiff was tied up from issuing his execution till then; before the statute he could issue no execution although there were no bail, and the statute requiring that the bail should be such

as the court should allow of,' the qualification of the words of the statute must be taken, and they were in effect no bail till allowed by the court, and the plaintiff having excepted to them should have with drawn his exception before he proceeded against them."

Lord ELLENBOROUGH, C. J. "I cannot help thinking that by the exception the plaintiff considers

1 1'ils. 337. Sayer, 58. + 1 Sr. IV. Blac. 462,

+ Say. 308.

them as no bail, and has now a right to take out his execution."

RULE ABSOLUTE.*

THE KING v. the INHABITANTS of LOUGHTON.

1806

GOULD

versus

HOLMSTROM.

dictment.

In order to be discharged from an indictment for not repairing a Highway. In highway, the parties must produce an affidavit that the road is now actually repaired since the conviction, and is likely to continue so.

The KING Inhabitants of

SMITH moved to discharge the defendants upon payment of a small fine, from an indictment for not repairing an highway, upon an affidavit that since LouchTON, the conviction, the road was put in good and substantial repair, and a large sum of money expended upon it, and was now in repair. He produced also a certificate of two magistrates that the road was in good repair, and likely to continue so.

ARBOTT, contrà objected that the affidavit did not state that the road was likely to continue in repair, although it was so stated in the certificate of the justices.

SMITH was proceeding to shew from the affidavits, by inference from circumstances, particularly from the words substantial repair, and the sum stated in the opinion of the surveyors to have been laid out, that the affidavit directly implied as much; when he was stopped by

N.B. In the last term the court came to a contrary decision with some reluctance, upon the authority of the cases, in this very case; but, having some doubts, it was now argued again, and in consideration of the plaintiff having proceeded upon the authority of the cases cited, and the bail having neglected to apply to be struck off the bail piece, the bal were ordered to pay costs up to last term.

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