Wilde, Serjt. and Platt, who shewed cause, argued from the discrepancies between the Valor Ecclesiasticus of 1535, and the endowment, that some alteration had taken place in the endowment before the 26 Henry VIII.; and from the rolls of the first fruits, that the vicar's receipts had diminished before the 3 Eliz. From these circumstances; from the fact that the rector had always enjoyed the tithe of potatoes in fields; from the provision in the endowment, that when gardens were subverted and cultivated by the plough, the prior should receive the tithes of the blades of gardens so ploughed; and from the reputation in the parish that the rector followed the plough, and the vicar the spade, it might be presumed, that, previously to the reign of Elizabeth, an agreement had been come to, on sufficient consideration, that all roots and vegetables grown in open fields, when cultivated by the plough, should go to the

rector.

Spankie and Comyn in support of the rule.

The enjoyment by the rector may have proceeded from mistake, as potatoes were long thought, erroneously, to be great tithes. If there were any such agreement as the plaintiffs have supposed, it is incumbent on them to establish their case by producing it. The clear grant in the endowment to the vicar is not to be superseded by vague presumption, or by accidental descrepancies between the endowment and the Valor Ecclesiasticus.

(Smith v. Wyatt, Clarke v. Stapler, Dorman v. Currey, were incidentally referred to.)—Cur adv. vult.

TINDAL, C. J.-The plaintiffs in this case declared in debt upon the statute 2 & 3 Ed. VI., as proprietors of the tithes of potatoes within the parish of Kingston, against the defendant, an occupier of lands within the parish, for not setting out the tithes of potatoes grown by him within the parish. The jury found their verdict for the plaintiffs, and a rule has been obtained for setting aside the verdict, as against the evidence in the cause. The question at the trial was, whether potatoes grown in a field, which field was under the plough, were rectorial or vicarial

tithes, in the parish of Kingston: for if such tithes were rectorial, the plaintiffs, as proprietors of the rectorial tithes, were entitled to recover.

On the part of the defendant it was contended, that such tithes were vicarial, and the endowment of the vicar, made in the year 1374, by the prior and convent of Merton, was produced in evidence, by which, after a specific enumeration of the tithe of various articles with which the vicar is endowed, he "is endowed generally with all small tithes whatever, due by custom or right, arising through the whole parish of the church of Kingston, and of the chapelries aforesaid, except those only which are specially reserved to the prior and convent aforesaid;" and it was urged on the part of the defendant, that as potatoes, whether sown in great or small quantities, whether in fields or gardens, are small tithes, the tithes of potatoes, by the very terms of this endowment, must belong to the vicar, not to the rector. Such is undoubtedly the construction of this instrument of endowment: but it is well established, that the original endowment may have been altered by a new and subsequent endowment made by all parties whose concurrence is necessary, before the restraining statutes. And again, that long and constant perception of tithes by the vicar not mentioned in the endowment, or the non-perception of any species of tithes which are mentioned therein, with evidence of their perception by the rector, will afford a sufficient ground for presumption by a jury, that such augmentation or alteration of the endowment has been made by some ancient and lawful or voluntary agreement. The law is so well known on this head, that it is unnecessary to cite any cases: the result being this; that such an alteration may be valid in point of law, but that the burthen of proving that it has taken place, in point of fact, in any particular case, is thrown upon the rector.

Now, it is argued by the defendants, that no such agreement can be presumed, in point of law, in the present case; because such alteration, in order to be valid, must have taken place before the restraining act, 13 Eliz.;

and it is generally allowed, that potatoes were not known in England, or, at all events, not cultivated, in open fields, prior to that time. To which objection, the answer that has been given, and which appears to me to be a sufficient answer, is, that although it may be reasonably admitted that such was the case, and consequently that no specific agreement relating to potatoes, by name, could have taken place before the statute of Elizabeth, still that such an agreement may have been made as to the class of tithe to which potatoes belong, as would include and govern the tithe of potatoes, when they were afterwards introduced. As, for instance, supposing an agreement took place before the statute of Elizabeth, upon sufficient consideration, that all roots and vegetables grown in open fields, when cultivated by the plough, should go to the rector, and when cultivated by the spade, should go to the vicar, such an agreement would be valid in law, and would clearly comprehend potatoes, when they came into general use. The question, therefore, in the present case, is, whether there was such a body of evidence laid before the jury at the trial, as to justify them in making the presumption which they have done upon the very question submitted to them for their consideration. There is, undoubtedly, evidence on both sides; and, perhaps, if the verdict had gone the other way, we should not have interfered to disturb it: but undoubtedly there is so much evidence on the part of the rector, as to bring this case within the general principle upon which the Court acts, viz. not to disturb a verdict, unless it sees clearly that the verdict is wrong.

That some variation had taken place, and some alteration been made in the terms of the original endowment, in the interval between the date of the deed of endowment, and the passing of the restraining statute, is evident. The Valor Ecclesiasticus, which was made in the 26 Hen. VIII. (1535), enumerates the various sources of profit to which the vicar of Kingston was entitled at the time of such value being taken; and upon comparing them with the enumeration in the

endowment, there is a considerable difference between the two. To advert to no other than two instances: the endowment gives to the vicar the tithe "Sylva cadua;" the Valor omits it, and gives him the tithe "Boscoruin ;” the former tithable of common right, the latter by custom only; again, by the endowment, the vicar was endowed with the tithe of wool, and lamb, and skins, in the chapels of Ditton, Molesey, and Shene; in the Valor, there is no mention of any such tithe as due to the vicar, in any part of the parish. Some alteration, therefore, though to what extent may be uncertain, must have taken place in the interval between the granting the original endowment and the time of taking the Valor.

But there is one provision in the endowment well worthy of observa tion:-"That if it should happen in future that any gardens of the said parish should be subverted or levelled. and that the land of the same should. be cultivated by the plough, then that the said prior and convent should receive and take all the titles of the blades of whatever gardens and lands were so ploughed." Again, "that if it should happen afterwards, that any plough lands (not being of the manors of the said prior and convent) should be reduced to gardens, and dug by the foot, then the said vicar should have and take the tithes of blade arising from such gardens, during such times as they should be dug and cultivated by the foot." The word bladum appears clearly, by another part of the endowment, to comprehend rye, wheat, and mislen. The provision seems to point to a distinction between the tithe of the same article, when growing in fields under the plough, and when growing in gardens under the spade: that in the first case, it should belong to the rector; in the second, to the vicar; and when this is coupled with the reputation in the parish, that the rector followed the plough, and the vicar the spade, we think it furnishes a fair ground of support to the presumption which has been made by the jury in favour of the plaintiffs.

Lastly, it was proved that the tithe of potatoes is mentioned in the deeds

THE general annual meeting of the Tewkesbury District Committee of the Society for the Propagation of the Gospel in Foreign Parts, took place at the Town Hall, Tewkesbury, on Thursday, the 1st ult. the Rev. C. White, Vicar and Rural Dean, in the chair. The meeting was respectably though not numerously attended, and it was the opinion of all present that some means ought to be devised for insuring a larger attendance of Clergy and laity at the meetings of this venerable Society, and infusing a greater degree of interest into its reports and proceedings, than has been heretofore customary. The resolutions, which embraced the usual topics, and called forth many eloquent comments from the members present,were unanimously adopted. The report was read by the Rev. R. Hepworth, one of the secretaries, and detailed the proceedings of the Committee, and the affairs and prospects of the Parent Society, since the Committee had last met. The exertions of the Society in the cause of the emancipated negroes, and its

zeal in procuring a King's Letter for accomplishing so laudable an object as their emancipation from ignorance and vice, were more particularly adverted to in strong terms of commendation. The Committee then proceeded to audit the accounts for the year, which exhibited the names of some new subscribers; and it did not separate without pledging itself to increased endeavours, individually and collectively, to promote the success of the high and holy cause, and in particular to aid it by making it known in their neighbourhood, and procuring the names, wherever possible, of additional members.

When this meeting broke up, it was proposed, by some of the gentlemen present, to establish a depository in Tewkesbury, for the sale of books on the list of the Society for Promoting Christian Knowledge, a want long severely felt in that town. After some farther conversation, it was resolved to take preliminary steps immediately for that purpose.

DOMESTIC. THE REVENUE returns for the quarter present, on the whole, a favourable aspect. Upon a comparison of this financial year with the last, there is a deficiency of income to the amount of 1,084,600/. against the former, whilst by collating the two

VOL. XVII. NO. XI.

quarters, ending respectively the 10th of October, 1834 and 1835, there will appear an increase of receipt in favour of the latter of 344,2221. The dissimilarity of produce of the two years appears to be occasioned altogether by the falling off in that of the assessed

U

taxes, under which head alone, from the reductions made and continuing, there is apparent a defalcation of 992,1987. upon the year, and 153,594l. upon the quarter, making together 1,145,792/. which exceeds by a large fraction the deficiencies upon the whole of the present year. In other respects, the accounts of the two years and quarters tally pretty nearly. From the circumstance of one large class of duties having been transferred from the Excise to the Customs, and vice versá, there is an apparent disparity; but the productiveness of one nearly makes amends for the deficiencies of the other. Thus, the account of Customs shows an increase upon the year of 2,182,951/.; and upon the quarter of 403,4871.; whilst the Excise, on the other hand, presents a decrease upon the year of 2,265,151/.; but an increase upon the quarter of 82,590l., which turns the balance in its favour. The revenue arising from stamps has decreased upon the year by 96,660l., but increased upon the quarter to the amount of 12,196/. The Post-office has been steadily more productive upon the year and quarter than on the corresponding periods last year. On

the

year the increase is 43,000/; on the quarter, 6,000l. The same may be said of the miscellaneous taxes, which have increased upon the year 31,219., and on the quarter 14,8017. The returns of imprest moneys and repayment of sums advanced for public works present no results, for the increase upon the quarter just equals the falling off upon the year.

The

amount of Exchequer Bills wanted for the service of the quarter is estimated at 4,016,1891.

This improving state of our finances is fairly attributable to the returning sense of security diffused by the energetic and successful exertions of the Conservatives to resume their natural position, and concentrate their scattered forces. Public prosperity can only be secured by public tranquillity, and the only way to insure this, is by united and active opposition to Radicals and Revolutionists.

O'Connell, and the popish faction, are starring it in the provinces and Ireland; but the registration begins

to shake the confidence of the Demagogues, and if Sir Robert Peel can be induced once more to take the helm, and a new parliament be summoned, there can be no doubt that the returning sense, and patriotic feeling of Englishmen, will render the skulking papists, and booing Scots, a dead letter, and defeat the sanguinary band of Romanists and Infidels-Unitarians and Atheists-Congregational Dissenters and Nullifidians,-who differing wide as the poles on every substantial point, are only united for the destruction of the Church.

But let us turn from the sickening details of these treasonable efforts of O'Connell and his ministry, to the refreshing accounts of her Majesty's visit to Oxford. It is not only ridiculous, but useless, for the Radico-Whig press to endeavour to fritter down the enthusiasm with which our gracious Queen was greeted, by saying it was exhibited by a "Mob of intemperate youths." Who are the youth of the University? Young men of the age, on an average, of twenty-one, from whom the Church, the Senate, and Bar, are supplied with members. What they think and feel is by no means to be overlooked; for their thoughts and feelings must give a tone to the great community, in which they are destined to take so conspicuous a part. But it was not the "Academic youth" alone that greeted her Majesty. Every one, from the richest tradesman to the poorest cottar, who lit bis small candle by the way-side, to show that if humble, he was loyal, all honoured Her. But our object in introducing this in our Retrospect is to direct the particular attention of our readers to an address presented to the Queen by the Bishop and Clergy of the diocese, which produced a very deep effect upon her Majesty. After alluding, in unostentatious terms, to the excellency of her Majesty's private character, the address proceeds

"In times like the present, when hostility has been declared against whatever gives fixedness to the principles of our christian faith, and peace and safety to those who profess them, it becomes our special duty to acknowledge, with humble gratitude

to Almighty God, your Majesty's stedfastness to the Scriptural doctrines of our Apostolical Church."

To this the Queen made a most touching reply, concluding emphatic ally

Although deeply sensible how little I merit the flattering expressions which pervade your address, I will yet venture to assure you, that to the last moment of my existence it shall be my constant wish to merit your good opinions, and to exert my humble, yet sincere endeavours, to maintain, in all its primitive purity, the holy faith, which my ancestors were, by the blessing of Almighty God, mainly instrumental in establishing."

A truly christian and royal reply. FOREIGN-Amidst all the troubles which lower over England, we cannot discover that our neighbours on the

continent are much better off. The glorious three days, which were to have secured to France an Utopian liberty, have ended in a confirmed and grinding despotism. BELGIUM is bankrupt.

SPAIN, inundated with the blood of her citizens.

PORTUGAL, demoralised.
ITALY, Pope-ridden.

TURKEY, a Russian province.

Whilst AUSTRIA, PRUSSIA, and RusSIA alone exhibit an aspect of prosperity and happiness.

If we cast our eyes across the Atlantic again, what do we find? AMERICA, without power to administer the laws, and the worst features of a mobocracy predominant.

THE FREE REPUBLICS of South America, the prey of banditii. And

THE END IS NOT YET COME!

THE Twenty-eighth of October will be a memorable day in the annals of Dorking; for on that day the foundation stone of a

new church for the worship of the living God, was laid by the Lord Bishop of the diocese. There is not, perhaps, a more solemn or interesting ceremony than this incipient dedication of a house of prayer. The creature in humility of soul approaches his Creator; and, although conscious that his God dwelleth in temples not made with hands, still relying on the promises of his Redeemer, he believes that where two or three are gathered together in God's holy name, he will spiritually be in the midst of them. The Shechinah, or visible symbol of the Deity, may be absent, but the Holy Scriptures, the pure transcript of the mind of the LORD, is there. There, as in the Jewish temple, the Word is read and preached. There a Liturgy, founded on the apostles and prophets, Jesus Christ himself being the chief corner-stone, is the established form of worship. There the dying command of a dying Saviour is observed, when we meet together for the breaking of bread. All these thoughts crowding at once upon the imagination, cannot fail to produce high and holy imaginings. And when, in addition to this, we reflect upon the millions who, since the first fabric was erected on the spot, have worshipped,

and died, and look forward to the millions who may succeed us, and bless us for having erected a House where they may feast their souls upon the spiritual manna of the Gospel, a thousand times more precious than the manna in the wilderness, every heart, we are persuaded, must beat with love and gratitude to God for having put such a right spirit within us.

The morning was most auspicious; "The sun was in the heavens, and joy on earth."

To be happy and make happy, seemed to be the maxim written on every face; and if there were dissentients, they wisely forbore to display their envy, malice, and hatred of the Church.

At about twelve o'clock, the clergy began to assemble at the residence of Mr. P. Cooke, who, in the handsomest manner, not only offered his house, but made every preparation to give a cordial reception to the friends of the Established Church. There were present, the Ven. C. J. Hoare, Archdeacon of Winchester, the Revs. G. Feachem, Vicar, S. Isaacson, Curate, Hon. J. E. Boscawen, Heberden, Pollen, Crawford, Dawson, Bray, Warnford, Glyn, Taylor, Richards, Knox, Slade, Young, and Kensit.

In addition to this, the same hospitable gentleman had appropriated an apartment for opening the Grove Lodge