is not otherwise prejudiced (). Any agreement contrary to s. 1, sub-s. (3) of the Benefices Act, 1898, is now covered by the declaration against simony contained in the Act. In addition to these points, we may notice, that it has been an occasional practice for the patron to take from the presentee an engagement (usually called a resignation bond) to resign the benefice at a future period, in order to give the patron another opportunity of presenting a clerk. Such engagements, although at one time deemed void, as being simoniacal (s), are now, to a certain extent, sanctioned by the law; the Clergy Resignation Bonds Act, 1828, having enacted, that a written promise to resign, if made to the express intent that some particular nominee, or one of two nominees, shall be thereupon presented, shall be valid, subject always to the following conditions, namely: —(1) That where there are two prospective nominees, each of them must be, either by blood or marriage, an uncle, son, grandson, brother, nephew, or grand-nephew of the patron; (2) that the writing shall in all cases be deposited, within two months after its date, with the registrar of the diocese, and be open to public inspection; and (3) that the resignation made in pursuance of such engagement shall be followed by a presentation, within six months, of the person for whose benefit it is made. And these agreements (which were usually called Resignation Bonds) are expressly reserved by Schedule I. of the Benefices Act, 1898, and remain valid; although by section 1 of that Act, it is now provided, (1) that any agreement for an exercise of the right of patronage in favour of any particular person, and (2) any agreement, entered into upon the transfer of the right of patronage, for the retransfer of the right, or for payment of the consideration (or purchase money) otherwise than in cash down, or for (r) 3 Inst. 154; R. v. Bishop of Norwich (1616), Cro. Jac. 385. (8) Dashwood v. Peyton (1811), 18 Ves. 27; Fletcher v. Lord Sondes (1826), 3 Bing. 501; 5 B. & Ald. 835. the resignation of the benefice in favour of any person, shall be invalid. Thirdly, as to TITHES.-These are a species of incorporeal hereditaments; and they are capable of being held either by laymen, in the capacity of impropriators, or by the clergy, in right of their churches (t). Tithes are the tenth part of the increase, yearly arising, upon the lands and on the personal industry of the inhabitants of the parish,the first species being either prædial, as in the case of corn, grass, hops (u), and wood (e), or mixed, as in the case of wool, milk (y), pigs, etc. (~) ; and the second species being personal, as in the case of manual occupations, trades, fisheries, and the like. Of prædial and mixed tithes, the tenth was formerly payable in gross; but of personal tithes, only the tenth part of the clear profits was due, and personal tithes were only due or payable, where and so far as the particular custom of the place authorized the claim (a). [Moreover, whatever was not of annual increase (as stone, lime, chalk, and the like) was not in its nature titheable; nor was tithe demandable (except by force of special custom) in respect of animals fera naturæ. The establishment of tithes in England was, possibly, contemporary with the planting of Christianity among the Saxons by Saint Augustine about the end of the sixth century; but the first mention of them, in any written English law, occurs in a canon or decree made in a synod of the year 786 (b). And this canon or decree, which at first bound not the laity, was subsequently (t) Bac. Ab. Tythes (E). See second report on Local Taxation, 1899, p. 8. (u) Trimmer v. Walsh (1862), 4 B. & S. 18; L. R. 2 H. L. 208. (x) 1 Roll. Ab. 635; 2 Inst. 649; 5 & 6 Will. 4 (1835), c. 75. (y) Fisher V. Birrell (1841), 2 Q. B. 239. (z) 2 Roll. Abr. 364; Inst. ubi sup. (a) Roll. Abr. 635; 2 & 3 Edw. 6, c. 13; 7 Bro. P. C. 3; Com. Dig. Dismes (E. 3). (b) Selden, ch. 8, s. 2. [confirmed in various councils, only a very few years later than the time when Charlemagne established the payment of tithes in France (c), when he also made that famous division of them into four parts,-one to maintain the edifice of the church, the second to support the poor, the third for the bishop, and the fourth for the parochial clergy (d). And in the laws agreed upon between King Guthrun the Dane and Alfred and his son Edward the Elder, successively kings of England, about the year 900, by the feudus Edwardi et Guthruni (which may be found at large in the Anglo-Saxon laws) (e), the payment of tithes was enjoined under a penalty for their non-payment; which agreement was maintained and confirmed by King Athelstan, about the year 930 (ƒ). - For some time after the introduction, of tithes, though every man was obliged to pay tithes in general, yet he might have given them to what priest he pleased, which were called arbitrary consecrations of tithes ; or he might have paid them into the hands of the bishop, for distribution by him among the diocesan clergy (g). But when dioceses were divided into parishes, the tithes of each parish were allotted to the particular minister of the parish (h); but arbitrary consecrations of tithes continued in general use till the time of King John (i), whereby the income of the parish priests was often scandalously reduced. Pope Innocent the Third, however, (about the year 1200), in a decretal epistle sent to the Archbishop of Canterbury, and dated from the palace of Lateran (k), enjoined the payment of tithes to the parsons of the respective parishes where every man inhabited; which epistle, says Sir [Edward Coke, bound not the lay subjects of this realm, but, (being reasonable and just) it was allowed of, and so became lex terræ (1).] And it is now held universally, that tithes, or their equivalent, are due of common right to the parson of the parish, unless there be a special exception. In some cases, indeed, the vicar, as well as the rector, is entitled to some part of the tithes ; but all tithes, primâ facie, and by presumption of law, belong to the rector, except such as can be shown to belong to the vicar (m). The evidence of this may consist either of a deed of endowment, vesting certain tithes in the vicar, or of such long usage as is sufficient to raise the presumption that an endowment of that description, though now lost, was antiently made (n). It sometimes happens, that an endowment of tithes vests all the "small" tithes, eo nomine, in the vicar (o); and this raises the question, what are small and what great tithes, to determine which, no clear line of demarcation seems ever to have been drawn. Yet tithes mixed and personal are universally agreed to be small tithes (p), which are sometimes called also privy tithes (9); and, on the other hand, tithes of corn, hay, and wood are generally regarded as great tithes (r). We have now to enquire, who may be exempted from the payment of tithes. [And here we must notice, first, that some persons are exempt by reason of some personal privilege; e.g., the Crown, by its prerogative, is discharged from all tithes (s). So a vicar shall pay no tithes to the rector, nor the rector to the vicar; the maxim in such cases being, that ecclesia ecclesiæ decimas non solvit (t). But these privileges are personal, both to the Crown and (/) 2 Inst. 641. (m) Daws v. Benn (1823), 1 B & C. 763; 2 Bligh. (N.S.) 83. (n) Jackson v. Walker (1781), Gwill. 1231; Elsley v. Donnison (1828), 2 Bligh. (N.s.) 94, 103. (0) Bac. Abr. Tithes (K). (1) Ibid. (7) Clee v. Hall (1838), 7 C. & F. 744. (r) Com. Dig. Dismes. G. 1. (x) Wright v. Wright (1591), Cro. Eliz. 511; Bac. Ab. Tithes (Q.); 1 Hardr. 315. (t) Blinco v. Marston (1591) Cro. Eliz. 479; Wright v. Wright [clergy, and extend not to their tenant or lessee of the lands (u). Secondly, spiritual corporations were always capable of having their lands totally discharged of tithes in various ways (~); and if a man can show his lands to have been formerly abbey lands, immemorially discharged of tithes, that will be a good exemption. Again, any owner of lands may claim an exemption. (either partial or total) from tithes, by reason of a real composition. This was an agreement made between the landowner and the incumbent (with the consent of the ordinary and the patron), that the lands should, for the future, be discharged from the payment of tithes, by reason of some land or other real recompense having been given in lieu and satisfaction thereof (y);] and by the Tithe Act, 1832, s. 2, every composition for tithes, which had at the date of that Act been made or confirmed by the decree of any court of equity in England, in a suit to which the ordinary, patron, and incumbent were parties, and which had not been thereafter set aside or departed from, was declared valid in law. [Moreover, prior to the Tithe Commutation Acts, all persons (spiritual or lay) might claim by custom a modus, that is, a partial exemption from tithes; as where, by immemorial usage, a particular manner of tithing had been allowed, different from the payment of one-tenth of the annual increase. This customary mode of tithing was sometimes a pecuniary compensation, as twopence per acre for the tithe of land; sometimes it was a compensation in work and labour, as that the parson should have only the twelfth cock of hay and not the tenth, in consideration of the owner's making it for him; and sometimes it was, that in lieu of a large quantity of crude or imperfect tithe, the parson should have a less quantity (1591), Cro. Eliz. 511; Sav. 3; Moore, 910, S. C. (u) Blinco v. Marston, ubi sup. (x) Wright v. Gerrard (1618), Hob. 309. (y) 2 Inst. 490; 13 Rep. 40. |