it must then be specified and alleged in the plea, in order for the court of justice to interfere: the unfitness in like manner must be specified and alleged, in order to be proved. But the bond in the present case was unattended with any such circumstance; and therefore neither any undue influence or unfitness was specified in the second plea to have attended the presentation; consequently the cause here alleged was not sufficient for the bishop to refuse the clerk.

As to the propriety of specifying the unfitness, it might be observed that the judgment of the bishop was subject to review ; he could not refuse ad libitum, he must assign his cause of refusal; for every fact of unfitness might be questioned, and tried in a temporal court, except literature; and that was subject to the review of the metropolitan. Upon the whole, there was no fact alleged in the pleadings of illegal use in giving the bond; or of undue influence or unfitness in the clerk to be admitted, &c.; besides the mere naked giving of the bond; wherefore it was hoped the judgment of the Court of King's Bench would be affirmed.

After hearing counsel on this case, several questions were put to the judges; seven of whom were of opinion that the bond was good and valid; and the eighth, (Mr. Baron Eyre) that it was illegal. A debate and division of the house ensued, when there appearing to be for reversing the judgment nineteen, among whom were all the bishops present, and against it eighteen; it was ordered that the judgment given in the Court of King's 30 May, 1783. Bench, affirming a judgment given in the Court of Common Pleas, should be reversed.

Bagshaw v.
Bossley, 4 T. R.

78.

81. In consequence of this determination, general bonds of resignation were deemed illegal and void. But the courts of law did 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.

82. A bond was given by a clerk to a patron to reside on the living, or to resign if he did not return after notice; and also not to commit waste on the 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 with 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 take upon himself all the duties of an incumbent, to reside on the living, to take upon him the cure of souls, 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, 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 judgment was given for the plaintiff.

83. In a subsequent case, where a clerk had given a bond to the patron on the 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 judgment 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.

Partridge v.
Term R. 359.

Whiston, 4

3 Bing. 501. Newman v. Newman, 4

Maule & Sel. 70, 71.

3 Bing. 523.

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

84. [Until the recent case of Fletcher v. Lord Sondes, decided on appeal in D. P., a very general opinion prevailed, that although, according to the case of Bishop of London v. Fytche, bonds and other assurances for general resignation were void, yet they were valid when given for securing the resignation of ecclesiastical preferments in favour of specified individuals. The former case, however, decided that for either of those purposes such bonds, &c. were void; and, in consequence of this previous misapprehension of the law, many bonds and other assurances had been entered into for the purpose of special resignation, and many presentations and inductions made accordingly. In order, therefore, to remedy the inconveniences that might result from the above decision, the statute of 7 & 8 Geo. 4. c. 25. was immediately passed and subsequently the 9 Geo. 4. c. 94. rendered valid bonds, covenants, and other assurances made for the resignation of ecclesiastical preferments, in favour of one individual named in such bond, &c. or to any one or two individuals therein named, being within the degrees of relationship (by blood or marriage) to the patron specified in the act.]

ture of.

DURING the first ages of Christianity, the clergy were supported Origin and naby the voluntary offerings of their flocks: but this being a precarious existence, 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 part 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 lands, and the personal industry of the occupiers. They were originally a mere ecclesiastical

(a) Nothing more than a general outline of the law of tithes is here attempted, and that only as far as relates to lay impropriators.-Note to former edition.

11 Rep. 13. b. 4 Leon. 47.

Bac. Abr. tit.
Tithes.

1 Rep. 111. a.
Parkins v.
Hinde, Cro.
Eliz. 161.

revenue, ecclesiastical persons only having a capacity to take them, and ecclesiastical courts only having cognizance of them. They are 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.

3. Tithes in their essence having nothing substantial 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 a certain tract of 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 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; not being an estate in the land, but a right to a certain portion of its fruits.

4. It follows that 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. Thus it was held in 42 Edw. 3. that a prior, parson imparsonee shall have tithes against his own feoffment, because he does not claim them in respect of the ownership of the land, or any right or title therein; but as Stile v. Miller, tithes, in respect that he is parson by collateral means. And in 31 Eliz. it was held that where a parson leased all his glebe land for years, with all the profits and commodities rendering thirteen shillings and fourpence pro omnibus exactionibus et demandis, he was notwithstanding entitled to the tithes.

1 Leon. 300.

Different kinds.

5. Tithes then are not an object of the senses: they are neither visible nor tangible. Their produce may indeed be seen and felt but they exist only in contemplation of law; from which it follows that they are incorporeal, for the law ascribes corporeity only to those objects which are substantial and permanent. 6. 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 being