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Lord Kenyon,-" I cannot bring myfelf to entertain a doubt on this cafe. It has been argued, that the "patron's right of presentation is a mere trust it is "fo to fome purposes, but not to all. It is a trust

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coupled with an interest: for it is a fubject of conveyance for a valuable confideration, which is not "the cafe with a naked truft. As foon as the de"fendant was prefented to the living, he was bound "to take upon himself all the duties of an incum"bent; to refide on the living, to take upon him the "cure of fouls, and to keep the houfe in proper

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repair. Now, this bond was entered into for the "purpose of securing a performance of all thofe "duties; which, by law and without the bond, he "was bound to difcharge. I avoid faying any thing "refpecting the cafe 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 decifion, if it fhould become neceffary. It "is fufficient for me, in deciding the prefent cafe, to

say that it cannot be governed by that. For here "the plaintiff does not call for the refignation 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."

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Buller J.-"I cannot find any immorality or illegality in this bond. It is the duty of an incumbent "to refide on his living, and to be regular in the dif"charge of his duty. Now, this bond requires

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"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 fame opinion.

Judgment for the plaintiff.

$ 79. In a fubfequent cafe, where a clerk had given a bond to the patron on his presentation, on condition. to refide on the living, and to refign if the patron's fon became capable and defirous 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 cafe up to the House of Lords, gave judgment for the plaintiff, without any argument. They faid that, as this was not precisely fimilar to the cafe of the bishop of London v. Fytche, they were bound by the established series of precedents.

It does not appear, that this cafe was ever carried to the House of Lords.

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Origin and
Nature of

Section 1.

DURING the first ages of Chriftianity, the clergy

were supported by the voluntary offerings of their flocks; but, this being a precarious fubfiftence, the ecclefiaftics in every country in Europe, in imitation of the Jewish 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.

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admitted in England, before the Norman conquest, and acquired the name of tithe from the Saxon word tenth.

§ 2. Tithes may be described to be the tenth part of the produce of lands, the ftock upon lands, and the personal industry of the inhabitants. They were, originally, a mere ecclefiaftical revenue, ecclefiaftical perfons only having a capacity to take them, and ecclefiaftical courts only having cognizance of them.

They were not confidered as any fecular duty, or as 11 Rep. 13b. iffuing out of land, but in respect to the perfons of the laity, in return for the benefit they derived from the miniftry and care of their spiritual paftors,

§ 3. Tithes, in their effence, have nothing fubftantial or permanent; they confift 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 fhall have been feparated from the general mass; before feverance, it is wholly uncertain what the amount of that fhare or portion may be: nay, its very exiftence is precarious; this, like its quality, depending upon the accidents of climate, feafon, foil, cultivation, and the will and caprice of the feveral owners and poffeffors. If the ground be not fown, if the farm be not stocked, if the fruits be not gathered, no tithe can poffibly arife; for tithe is payable not in refpect of the land, but of the perfon. 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 collect

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Gwill. 356.


ing them.

Tithes, then, are not an object of the fenses they are neither visible nor tangible; their produce, indeed, may be feen and felt, but they exift only in contemplation of law: it follows, therefore, that they are incorporeal; for the law afcribes corporiety only to thofe objects, which are substantial and permanent,

§ 4. Tithes are of three kinds; predial, mixed, and perfonal.

Predial tithes are fuch, 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 refpect for the trouble and expence of raising any species of vegetable which yields profit.

§ 5. The profit of keeping and depafturing cattle, which is ufually called Agiftment or Pafturage Tithe, is a predial tithe; because it arifes immediately from the Sear v. Trin. land. This was formerly doubted, but is now fully established by a determination of the court of exchequer.

Coll. Gwill.


§ 6. Mixed tithes are thofe 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 agiftment tithe; which is paid, not for the increase or improvement of the animal agifted, but for the grass eaten by it, and is proportioned to the

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