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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 con
veyance for a valuable consideration, which is not cs the case with a naked trust. As soon as the de“ fendant was presented to the living, he was bound
to take upon himself all the duties of an incum“ bent; to reside on the living, to take upon him the “ cure of fouls, and to keep the house in proper “ repair. Now, 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 that 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
Buller J.—“. 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 nothing more: it only requires him to do what the “ law would have compelled him to do without it.
Grofe J.--Declared himself of the same opinion.
Judgment for the plaintiff.
S 79. In a subsequent case, where a clerk had given Partridge v.
Whifton, a bond to the patron on his presentation, on condition
4 Term Rep. to reside on the living, and to resign if the patron's 359.
. 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 judgment for the plaintiff, without any argument. They said 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.
Origin and DURING
URING the first ages of Christianity, the clergy Nature of Tithes.
were supported by the voluntary offerings of their flocks; but, this being a precarious subsistence, the ecclefiaftics in every country in Europe, in imitation of the Jervish law, claimed, and, in the course of time, established, a right to the tenth part of the profits of lands; which right appears to have been fully
* Nothing more than a general outline of the law respecting tithes is here attempted; and that only as far as relates to lay impropriators. 5
admitted in England, before the Norman conquest, and acquired the name of tithe from the Saxon word tenth.
S 2. Tithes may be described to be the tenth part of the produce of lands, the stock upon 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 them. They were not considered as any secular duty, or as 11 Rep. 13 b. issuing out of land, but in respect to the persons of the laity, in return for the benefit they derived from the ministry and care of their spiritual pastors.
3. Tithes, in their essence, have nothing substan, tial 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 the land, 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 exist. ence 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 polfessors. 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 Cro. Eliz land, but a right to a determinate proportion of the fruits, with all the industry and expence that have been bestowed in bringing them forward and collectE 3
ing them. Tithes, then, are not an object of the senses : they are neither visible nor tangible ; their produce, indeed, may be seen and felt, but they exist only in contemplation of law: it follows, therefore, that they are incorporeal; for the law ascribes corporiety only to those objects, which are substantial and permanent,
$ 4. Tithes are of three kinds ; predial, mixed, and personal.
Predial tithes are such, as arise merely and immediately from the vegetable produce of the land ; because, a piece of land or ground being called in law prædium, whether it be arable, meadow, or pasture, the fruit or produce thereof is called predial. Nor is any
allowance made in this respect for the trouble and expence of raising any species of vegetable which yields profit.
$ 5. The profit of keeping and depafturing cattle, which is usually called Agisment or Pasturage Tithe, is
a predial tithe ; because it arises immediately from the Sear v. Trin. land. This was formerly doubted, but is now fully
established by a determination of the court of exchequer.
Col. Gwill. 1445
5 6. Mixed tithes are those which arise not immediately from the profit of the land, but from the produce and increase of animals nourished by the land, in which they differ from agistment tithe ; which is paid, not for the increase or improvement of the animal agisted, but for the grass eaten by it, and is proportioned to the