Page:Harvard Law Review Volume 10.djvu/122

96 g6 HARVARD LAW REVIEW. a change; for the title to the tenth part then vests in him as its owner. Moreover, the separation of the tenth part from the other nine parts was a duty imposed upon the tithe-payer {i. e., the occu- pier or owner of the land) ; and the performance of this duty (which was called the setting out of tithe, and which was the only duty or obligation imposed upon the tithe-payer) constituted the payment of tithe. Thirdly, tithe was originally the mere creature of the canon law; and, as that law could not create a real obligation, payment of tithe was secured only by means of the personal duty before men- tioned, imposed upon the tithe-payer, and enforced by ecclesiastical censures, or by such other penalties as the civil power placed at the disposal of the canon law judge. At a very early day, however, — as early, indeed, as the time of the Heptarchy,^ — the right of the Church to receive tithe was recognized in England by the civil power, and thus the right became a real obligation, though the personal duty still remained as before. Fourthly, while the civil power thus changed the nature of tithe, it did not provide any new remedy, except indirectly and by way of penalty,^ for enforcing its payment; and hence a suit in the eccle- siastical courts continued to be the ordinary remedy for enforcing the payment of tithe until comparatively modern times, when the jurisdiction of those courts was superseded by the Court of Chan- cery. This change of jurisdiction, however, caused no change in the nature of the remedy. The suit for tithe in the ecclesiastical courts was founded on the duty to set out tithe, and on the breach of that duty by the defendant, and the foundation of a suit in equity for tithe is the same. Since, however, a suit in equity for tithe is not founded, except indirectly, upon the real obligation to pay tithe, this is not the proper place to consider the nature and incidents of such a suit, or the reasons for equity's entertaining it. Fifthly, the result therefore is that we have the singular anomaly of a real obligation without any remedy against the land on which the obligation rests, and consequently without any '* real " security for the performance of the obligation. The reasons for this, how- ever, are not exclusively historical. From the nature of the 1 2 Bl. Com. 25, 26; 3 Burn's Eccl. Law (Phillimore's ed.), 679. 2 See 2 & 3 Edw. VI. c. 13, s. i. By 32 Hen. VIII. c. 7, s. 7, rent-owners were authorized in certain cases to bring writs of assize and other appropriate real actions to establish their rights ; and it was consequently held that ejectment might be brought for the same purpose, as a substitute for a real action.