Page:Harvard Law Review Volume 10.djvu/123

97 A BRIEF SURVEY OF EQUITY JURISDICTION. 97 obligation, as has been seen, the remedy can be only against the products of the land, — not against the land itself. From the nature of the obligation also, it is not easy to give the tithe-owner any legal claim against the products of the land until the tenth part is separated from the other nine parts. Could the ecclesias- tical courts, or courts of equity, have enforced specific performance of the duty of setting out tithe, or specific reparation of a breach of that duty, and thus have afforded to the tithe-owner an effective " real " security, at least from the moment when the tithe was set out? No, clearly not. First, there is only one time when tithe can, in the nature of things, be effectively set out, namely, when the crops have been severed from the soil, but still remain in the field where they grew ; and it is not practicable for any court to compel the doing of anything at any precise time. Secondly, for the same reason, specific reparation is out of the question. Thirdly, the setting out of tithe consists of so many particulars, and in- volves so much exercise of judgment, care, and honesty, that it would be very injudicious for any court to attempt to enforce it specifically. The conclusion therefore is that a compensation in money seems to be the only remedy practicable for a refusal or neglect to set out tithe, without a radical change in the nature of the obligation itself. C. C. LangdelL