(Mr. Baron Eyre) that it was illegal. A debate and division of the house ensued, when there appearing to be for reversing the judgement nineteen, among whom were all the bishops present, and against it eighteen; it was ordered that the judgement given in the Court of King's Bench, affirming a judgement given in the 30 May 1783. Court of Common Pleas, should be reversed. 80. In consequence of this determination, general bonds of resignation must now be deemed illegal and void. But the courts of law do not seem disposed to condemn bonds of resignation, unless they are exactly similar to that which was held unlawful in the above case: for in a subsequent case the Court of King's Bench held, that a bond by which a clerk shall only bind himself to the performance of those duties which the rules of law, and the principles of morality require, is valid, and will be enforced. 81. A bond was given by a clerk to a patron, to Bagshaw reside on the living, or to resign if he did not return v. Bopley, 4 Term R. after notice; and also not to commit waste on the 78. parsonage. In an action of debt on this bond, the question was, whether it was valid or not. Lord Kenyon." I cannot bring myself to entertain a doubt on this case. It has been argued that the patron's right of presentation is a mere trust; it is so to some purposes, but not to all. It is a trust coupled with an interest; for it is a subject of conveyance for a valuable consideration, which is not the case with a naked trust. As soon as the defendant was presented to the living, he was bound to himself all the duties of an incumbent; to reside on the living, to take upon him the cure o take upon souls, and to keep the house in proper repair. Now Partridge v. this bond was entered into for the purpose of securing a performance of all those duties, which by law, and without the bond, he was bound to discharge. I avoid saying any thing respecting the case of the bishop of London v. Fytche; when that question comes again before the House of Lords, they will, I have no doubt, review the former decision, if it should become necessary. It is sufficient for me, in deciding the present case, to say, it cannot be governed by that. For here the plaintiff does not call for the resignation of the incumbent, but merely for a performance of those duties, which in morality, religion, and law, he ought to do. I am therefore clearly of opinion that a bond for the performance of these duties is not illegal." Mr. Justice Buller." I cannot find any immorality or illegality in this bond. It is the duty of an incumbent to reside on his living, and to be regular in the discharge of his duty. Now this bond requires nothing more: it only requires him to do what the law would have compelled him to do without it." Mr. Justice Grose was of the same opinion, and judgement was given for the plaintiff. 82. In a subsequent case, where a clerk had given a bond to the patron on his presentation, on condition to reside on the living; and to resign, if the patron's son became capable and desirous of taking the living; and also to keep the rectory house and chancel in repair: the Court of King's Bench, in an action of debt on this bond; understanding that it was intended to carry the case up to the House of Lords, gave judgement for the plaintiff, without any argument; saying, that as this was not precisely similar to the case of the bishop of London v. Fytche, they were bound by the established series of precedents. It does not appear that this case was ever carried to the House of Lords. 1. Origin and Nature of. 12. How and when due, TITLE XXII. TITHES. 59. Rectors or Parsons. 60. Portionists. 61. Vicars. 66. The King. 67. Lords of Manors. 73. What Estate they may have. 83. Prescription De modo decimandi. 86. Prescription De non deci- 94. Act of Parliament. 101. Long Possession of a Portion Origin and DURI SECTION 1. URING the first URING the first ages of christianity, the clergy were supported by the voluntary offerings of their flocks; but this being a precarious subsistence, the ecclesiastics in every country in Europe, in imitation of the Jewish law, claimed, and in course of time established, a right to the tenth of all the produce of lands. This right appears to have been fully admitted in England before the Norman conquest, and acquired the name of tithe, from a Saxon word signifying tenth. 2. Tithes may be described to be a right to the tenth part of the produce of lands, the stock upon the lands, and the personal industry of the inhabitants. They were originally a mere ecclesiastical revenue; ecclesiastical persons only having a capacity to take them; and ecclesiastical courts only having cognizance of 11 Rep. 13 b. them. They were not considered as any secular duty, or as issuing out of land, but in respect of the persons of the laity; in return for the benefit they derived from the ministry of their spiritual pastors. Tithes. 3. Tithes in their essence have nothing substantial Bac. Ab. Tit. or permanent; they consist merely in jure, and are only a right. An estate in tithes is no more than a title to a share or portion of the produce of lands, after it shall have been separated from the general mass. Before severance it is wholly uncertain what the amount of that share or portion may be. Nay, its very existence is precarious; this, like its quality, depending upon the accidents of climate, season, soil, cultivation; and the will and caprice of the several owners and possessors of the land. If the ground be not sown, if the farm be not stocked, if the fruits be not gathered, no tithe can possibly arise. For tithe is payable, not in respect of the land, but of the person. It is not an estate in the land, but a right to a determinate portion of its fruits. There- Cro. Eliz. fore a release of all demands in lands does not operate as a discharge of tithes; for as they would not pass under the denomination of land, neither would they be affected by a release of all claims arising out of lands. 4. Tithes then are not an object of the senses, they are neither visible nor tangible; their produce *Nothing more than a general outline of the law respecting tithes is here attempted, and that only as far as relates to Lay Impropriators. 216. Leon. 300. 1 Rep. 111 a. 2 49 a. |