Durston contra Sandys, 2 Jac. 2. fo. 108.

THat the Defendant being Patron of the Rectory of Messenden in Com' Gloucester,* and the former Incumbent ha∣ving Resigned the same, the Defendant told the Plaintiff, he would present him to the said Rectory worth about 100 l. per An∣num, and the Plaintiff coming to the Defendant for the said Presentation, the Defendant drew a Bond of 300 l. penalty, with Condition, That the Plaintiff should resign the said Rectory at any time within six Months Notice, which the Plaintiff sealed, and thereupon the Plaintiff was Instituted and Inducted, and was ever since a constant Resident on the place, and hath been at charge of Repairs, and the Plaintiff demanded Tithes of the Defen∣dant, who refuses to pay the same, but gave the Plaintiff Notice to resign, who Resigned the said Rectory into the Hands of the Bishop of Gloucester; but the Bi∣shop refused to accept the said Resignation, and ordered the Plaintiff to continue to serve the Cure, declaring, That he would never countenance such Unjust practices of the Defendant, but ordered his Register Page  399to enter it as an Act of Court: That the Plaintiff had tendred his Resignation, and that the said Bishop had rejected it: That the Defendant Arrested the Plaintiff on the said Bond for not Resigning; so to be relieved against the said Bond is the Plain∣tiffs Suit.

The Defendant insisted, That the Plain∣tiff demanded more than his just due for Tithes, whereupon the Defendant refused payment, and that the Defendant reque∣sting the Plaintiff to resign according to the Condition of the said Bond, the De∣fendant Arrested him, which he hopes is Just for him to do, and that this Court will not hinder the prosecution, and that the Plaintiff hath no colour of Relief in this Court against the said Bond; and insist, That the Reason of his Arresting the Plaintiff on the said Bond was his Non-residence and litigious Carriage to the Parishioners.

This Court declared, That such Bonds taken by Patrons from their Clerks, to Resign at pleasure may be good in Law, yet ought to be enjoyned and damned in Equity whensoever they are used to any ill purposes: And the Defendant making ill use of the said Bond, his Lordship de∣creed, That a perpetual Injunction be awarded against the Defendant, to stay proceeding at Law upon the said Bond.