ili,.«*-(ft- - - - - 15^ CHAP. vlii CONTENTS. CHAPTER THE EIGHTH. •l^xemptions Partial, - - - Page 183 CHAPTER THE NINTH. Tithes 171 London, 229 CEIAPTER THE TENTH. Remedies for the Recovery of Tithes, or their Vhlue^ 248 THE THE LAW OF TITHES. CHAPTER THE FIRST. HISTORICAL INTRODUCTION. § I. Tithes before their legal Ejl ahlijloment . WITHIN {a) the period which elapfed between the latter end of the fourth century, and the commence- ment of the reign of Charlemagne, comprehending a fpace of about four hundred years, the payment of tithes or tenths of the produce of lands, and of other articles, was inculcated as a religious duty by fome eminent fathers of the church, and miniflers of the gofpel ; and their preach- ing was not ineffe£lual. But the offi^rings confequent on thefe admonitions feem not to have been always in the precife proportion of a tenth, and they were chiefly voluntary, and the effect of confcientious piety, except that where no contributions at all, or fuch a^ were iliufory only, -were rendered, the Church might on fome occafions excommunicate, or cenfure the defaulters. The 'a) Seld. on Tlches g. y. J i , & c vi. Moutefq. Sp. o£ L. b. xxxi. c 12, B paymenu 2 t.Jtahlifidment cf 'Tithes. Ch. L payments v/ere In a great meafure arbitrary alfo In refped to the perfciis to whom they were made ; being fome- times to the priefl officLicing at the facraments ; fonietlmes to the fuperior of a religious conclave ; fometlnies to the blfiiop ; and fometlmes dedicated to the poor. And i; appears moreover, that a perpetual or permanent right to tithes was very early confecrated to fome churches by affignment out of particular lands at the owners pleafure. But the eftabhfhment had not yet acquired the lanciion of public authority ; nor of any ordinance in general force, ecciefiaftical or civil. There are no traces of any law for tithes in the Eaftern empire, at any period. And as to the Weilern church, in the age I am fpeakingof, the only ordi- nance (h) of undoubted credit for payment of them is that of the council of French bifnops aifembled at Mafcon fo early' as the year 586. But the decrees of that ailembly were never received as general canons^ nor did they obtain ::.nv o-reat or lailing validity in the diftrid In which they were enafted. Such v/as the origin of tithes as not yet recognifed by fecular authority, and thus they cxided be- fore the age cf Charlemagne. § IL Tithes ejlahlijhed on the Cmtinent of El rcpe. TO this powerful monarch, whofe dominions v/erc fowide and 9,ourirning,are commonly afcribed the hrfl general laws, certainly the earlicft extant, for the payment of tithes. In a general ifiTembly of eftates fplritual and temporal held under him in the year 7785 about twenty-two years before his title of cniDeror, it was ordained " ut unufquifque fuam decimam " donst \ atqiie per jiiffionemepifcopi fill difpenfefur.'" The In- definite exDreiTionj " fuam decimam^^ intimates, that the (/') G\"'ii^ K-ep. 488. Seld. c. ▼. ^ 5. and Linden^ 674. cufloia S 2. EJiabl'iJIment of Tit her, cuRom of titliing was to a fufficient degree extenfive and prevalent to afceitaln in feme meafure the f^-ib-ed matter of the oflerings. This law is found among the leges Lcmobar- doriim, book iii. tir. 3, the v/hole title being infcrlbcd df dsc'miis-ia). And it is alfo admitted in the capitulary of the emperors Charlemagne and Lewis, both of which colleclions are parts of the Codex legum antioua^'um^ edited by Linden- brock, where many flatutcs and ordinances concerninc? tithes occur. But it appears in point of fa5: that the efi;abli(hment metwiih fome oppofition, of v/hich the frequency, and fo- lemnity of the injun6lion, axTord a flrong prefumption. Thus in one {c) of them the duty is faid to be confirmed, *' ex iitriufquc tejlamenti tabulls." Some are interfperfed promifcucLifly among.other Mcfaical precepts, adopting the cxpreffions of the Pentateuch ; and one law inf.ifts on a pcrfon making default, the heavy penalty of forfeiture of his eftate in th - lands from which the tithes arofe, and fuch eflate or intereil was at firll ufually granted for the feuda- tary*s life, and then called (as in the text referred to) bene- ficium. In that paifage, as in many other places, of thefe old inftitutions, nou.s et dechr.a are mentioned to^-ether. This might lead to a fuppofition, that in fonie diilri^s a greater proportion than a tenth was cuitomarily paid ; but Selden^(<:/) in Iiis profound learning and judgment inter- prets the noriie to have a fignification wholly dirtincl from the com.m-on ufe of decinw^ and to m^ean the rents or re- turRs referved on demifing lands of the church. Various authors have adverted to Charlemagne's fourfold difiribution of tithes taken, as it feeras, from antecedent canons (^), and the ufage of primitive Chridianltv, viz. " ut declmis (^f) popidi iiz quetUwr partes dividantur : Prima pars (a) Linden, 674. (e) Linden, lioi, Seld. c.vi. f^. (c) Linden, 703, 98$, pS;, 949. (/) Liuden, 674. {J) Seld. c. Ti. f. 7. B 2 etiusik 4.. EJlablifDmcnf of TiiheT, Ch.L epifcopis dctiir ; alia clcr'icis ; tcrtia pauperibiis ; qtiarta hi fabrica ipfms ecelefic^y Perhaps, however, th's rule, after it was fo ordained, was not of very extenfivc prevalence, or duration, or not exaftly fulfilled. And indeed the capitulary is fcarcely reconcileable in different parts of the compilation. Thus 0R£ law directs, " ut (g) declnus in potejlate epifcopi fmt y '* qualiier a prejhyteris difpenfentur-^''* \\\{i\^ another decrceSj " :.// (/?) dccinidz fiddiUr fan3(Z ecclefia reddantur., et pre/- *' bj'teri feciindum canonicam rcgulam Jidditcr cas dividani ; this canonical rule is elfewhere (/) explained to mean the ■fourfold divifion before mentioned, in which latter place the portion of the bifnop feems referved to him in truft to be employed in general purpofes of benevolence : for it is laid, "^ quidquid exifide pontifex jidjerit prude?iti coiifilio ejl '■'' faciendu?Ti.'" In this law, and a (/-) fubfequent ordinance of the emperor Lewis, the priefts are folemnly admoniflied to make a faithful partition of tithes received, efpeciall'y among the poor, and not to fell them, nor treafurc them up in barns, a pradtice of which the prevalence is cenfured. Thefe fevera! quotations indicate, that the quadruple diilribution was never firictiy or univcrfally adhered to ; and a peculiar parochial right feems gradually to have centered in the priefts refpeclively officiating in the churches of the dlf- tricts where the tithes were produced, except as to fo much of them as had fallen into other hands. For it Is obfcrvable how very foon (/) after the firm and general eftabliflunent of tithes on the continent of Europe, they were in many places perverted from their original deftinations, and vefted in lay hands by grants and con- veyances called infeudations. Such grants Vvxre made by princes, billiops, religious houfes, lords of feignoiies, out (j) Linden, 854, (i) Liaden, ii83. (Z»} Linden^ 94.4. (/) Seld. «. vi, i", 4.. (j) Linden, iiozf. S 2. EJiahhPjment of Tithes. '$ of their demefncs, and, perhaps, by private lay patrons ill the vacancies of their churches. But the juft right of the grantors in making them is not very apparent. The moil ancient recorded inftance is referred to fo early a ^ period as the year 900, and is a patent from a king of France to the firll earl of Holland of the church of Kec- munde, or Egmond, with all things thereto duly belonging. Such alienations were about the year 1060 the fubject of complaint to pope Alexander the fecond, and fome time afterwards (J) were prohibited by a council of Lateran in terms indifcriminate : Yet they continued fo frequent, not- withRandlng a like prohibition by another Lateran council in 1 139, Tliat about the year 1170 they were made a pre- tence by fome malecontents in the north of Germany for paying no tithes at all, '■^ prater e a {ni) et hi adjecsrunt non *' miiltum a veritafe aberranies quod omnes decim<2 in " luxus celftrint honiinum feculariiimy To remedy fo progrefTive an abufe, a third canon was enaded at a general <;ouncil of Lateran in 1180 (-^i) prohibiting for the future fuch infeudations of tithes from one layman to another, which ecclefiaflical ordinance feems to have had an ex- tenfive reception in Europe. The alienation of tithes not merely to laymen, but even to fplrltual corporations, as abbeys and the like, was not obviated till about twenty years afterwards, by a decretal epiille of pope Innocent ihe third. In the interval between this council, and Innocent's decretal epiftle, tithes might (at leafl with the confent of the diocefan) be arbitrarily confecrated to a religicus houfp, although they could not be alienated to lavmen. (/) Sclden fays in 1078. The (n) So Clironicl. ap. Corp. jur. Chronicl. ap. Corp. Jur. civ. men- civ. Linden, i6o, & Selden. But tions Concil.Lat. in ]o65.& Synod. Co. 2 Inft. 641. Degge, p. 2, Lat. in 1072. There were many c. 2. & 2 Bl Com. 27. pliice it in couticils of this appellation, the year preceding. See Decretal (m) KrantzWandaljlibaT, c, 39, Greg. IX. 1. 3. t, 30. c. 19. with the glofs. B3 € Tithes In England. Ch. I, § III. Tithes 171 England. IN refpect to the payment of tithes in this ifl and, fir William Biackflone fays, (o) " poffibly they were contemporary with " the planting- of chriiiianity among the Saxons by Auguftin "the monk about the end of the fixth centm-y." If the osily ground for this furmife is, that the payment was commonly urged, and inculcated from fcriptural texts, aid as confonant to the divine code, then it may with equal probability be referred to a much earlier period than that monk's miffion from Gregory the Great ; for chrifuianity prevailed in general among tlie Britons, and many ecclefiaf^ 'iSz'^ fynods were holden here anterior to the Saxon dynaily. it may be remarked, that Auguftin (/>) inquiring of the pope, as to the bifliop's portion of the oblations of the faithful at the altar, makes no mention of tithes by name. He receives for anfwer that the cuflom is generally to make that quadripartite divifion before alluded to, which thus appears to be not only more antient than the law of Charlemagne on the fubjeft, but (^q) conformable alfo to feme very old canon or ufage : and this flrengthens the former hypothefis concerning the original nature of tithes. In thofe elder ages, the bilhop and his clergy (forming a council or chapter to him) refided together (except fuch as were fent to minifler at a diftance), and were in fome meafure maintained by fuch pious indefinite offerings with-- out any local limits being afcertained, within which tithes were peculiarly demandable. The (r) next million from Rome after that of Augiaftin was in the year 786, when pope Hadrian the firfl fent (0) 2 Bl. Com. 25. {q) Seld. c. vi. ^3. cites, Conci!, (^ } S Jd. c. ix, ^ 2. Antioch, Gwill. Rep. 488. (r] Seld. CTiii. ^ 2. hithfr § 3* Tithes In England. 7 hither Gregory blfliop of Oftia, and Theophy!a£b bi'lhop of Todi, for the reformation and eflablifhnient of the ecclefiaf- tical code. Accordingly, diflincl councils were alfembled of the fpiritual, and fecular pov.'ers for the kingdoms of North- umberland and Merc ia, the latter of which meetings leems alfo to have been attended by the flates of Wefiex, as weii as the archbifiiop of Canterbury, et ca:terls epifcopis regio- num. Thefe ecclefiafllcal legiilators readily embraced and adopted whatever was propofed by tlie authority and fanc- tion of the legates, and among the refl an ordinance de dechnis dandls ; and thus the payment of tithes became the law of the land throughout the whole, or by far the greater part of the dominions of the Saxon heptarchy, not long after this event confolidated into the monarchy ©f England. In the fucceeding ages frequent mention is made of tithes among the Anglo-Saxon laws : but the firil peremptory limitation of them to one church in exclufion of others (other than by endowm.ent) is in the laws (j) of king Edgar about the year 970, by which it Vv'as ordained that every man not having ere<^cd a church of his ov/n fiiould pay his tithes to the ealban mynj-^rjie, antient miniiler, (meaning, as the cafe might be^ cathedral, mother church, or monaflery^ where he heard divine fervice. The fame regard to the more antient places of -^vorfliip is paid in a conRitution (.'') enafted about forty years afterwards, under Eiheidred the fecond. But it is to be obferved, that the ordinances of king Edgar point to the confirmed and (;<•) encreafing practice of thanes and great men, v/ho, as religion prevailed, for the convenience of their families and tenants, f?recled and endowed churches within their refpeftive feignpries and do- mains ; the boundaries of which in future determined the officiating minifter's function and his emolum.ents, and fuch beneficed incumbent had no longer any claim on the com- (j) Seld. c. viii, ^ 9. 8: c, ix. (0 Seld. c. viii. J lo. f 4' {u) Seld, c.ix. i 4, B4 men 8 Tithes in Enzlaiidc Ch.t. mon fleck of tithes and oblations in the trcafury of the diocefe. King Edgar's {latutes, indeed, confine fuch endowments of newly erected and confecrated churches, having places of fepulture annexed to them, to one third only of the founder's tithes. But it is with reafon fuppofed that thefe divifions or dillrids were foon confidered as pariflies of themfelves, (rites (v) of fepulture being an old charadleriftic of {w) a parifli church), and in procefs of time, perhaps fpeedily, attracted the two refervcd thirds, to which the elder or mother church had once a claim. And I fhould conjedure, that this rarely happened to the prejudice of another /^r/,//:? church, in the fenfe we now ufe the term (a;) {{or par occi a ovparocbia was originally, and for a long time fynonimous with diocefe or hiiliopric ./ ; but rather to the diminution of the revenues of fome epif- copal fee or monad^ry, which were reciprocally relieved by having fewer officiating clergy to fupport. The bifiiop's confent was neeeffary to the confecration of the new church ; he could therefore have no ground for complaint. Many wade and uninhabited fpots, not therefore attached to any parifh, as they afterwards became cultivated, built upon, and populous, required a refident prieft, and were enabled to render him temporal remuneration. Moreover, in places avowedly parochial, it is thought {y) that long after king Edgar's time tithes were demanded as due by prefcription, or by fpecial confecration of them to the incumbent's benefice, and merely of common right as at prefent and as annexed to ("u) r Vin. Left.314. 2 Inft.363. feuGioecefim, &:c.DecretalGreg IX. {nv) See 2. R. A. 291. c. ill. t. 30. c. 20. de parochia {x) Sold. c.vi. § 3. & c ix. § 3. uiiius epifcopi in dlcecefim alterius. Lexic, var. ria-ixja. Filefacusin his Gwill. Rep. 4'^8. aliquando paro- Paroecia, c.i. calls parocliia the popu- chia pro dicscefi ponitur. Dioecefis lar and corrupt, and paroscia the true interdum pro parochia. Rebuffi orthography, and fays, canon deci- tratl. de decunis qujell vi. ^ 6, See «nu?. qiiartus apoflolorura denuntiat alfo 5 Co. 67 a. cpifcopo fuam defcrenti nafmiiia* [y] Seld. c. ix, §3. the 5 3' Tithes in Erigla7id» 9 the fplntual care of the parifliloners refident within the liiruts. 1 fliould therefore afcribe the erection of the greater number of our comparatively more modern parifhes to places where no tithes were before payable to any parochial benefice. And thefe obfervations coUedively may account for the ellablilhment of the incumbent's peculiar and ex- clufive right to tithes in his parochiallimits of recent found- ation, without traces found of any controverfy in any of the many dillricls in which thefe new endowments fucceflively took elic6t for more than a century downwards from the Norman invafion. Infomuch that in {-z) an epiRle from king John to pope Innocent the third, it is claimed as {a) lawful by the cuftom of the realm for the bifhops, earls, and barons to found churches within their feignorics. The right is claimed generally, but the recognition of it, as allowed to laymen, is fubject to provifoes, that the billiop's aiTent be hat', and no injuflice be done to more antient churches by the new foundations. About this period, however, the pradice fell into difufe, probably as the right of the churches already ereded became gradually con- fidered as coextenfive by common intendment with the parochial boundaiies. For in this age, at lead, it was the fettled doctrine that all lands were regularly to pay tithes to the mother or parifli church. But although little or no veiligc appear of refiftance madf to founding parifli churches de novo in refpe£b to any antecedent right to tithes in the appointed diitrid:, yet the religious orders (Z») were ahvays vigilant to difpoflefs the fecular officiating clergy of thefe their jufl rights, and were probably not a little fedulous in obtaining frefli grants in the interim that elapfed between the council of Lateran, which prohibited fuch infeudations to laymen, and pope In- (ss) Seld, c. xl. $ 3.'' (f) DegTfc*, p. 2. c. 2, (a) 3 Vin. Left. ^^ Sc n. c, xiocent's JO Tithes in 'England. Ch. I. nocent's decretal epiftle above rcfeiTed to,wliich {h) extended thereftraint to fpirltualperfonsalfo, and conventual bodies, enjoining the due payment of tithes to the parochial incum- bents. Sir Wm. Elackllone correds (J) an error of Sir H. Hobart and others {d>j^ who fuppofe that council to have prohibited fuch grants tofpiritual perfons. But are we not to impute the fame overfight even to Lyndwood, a learned, canonift, and bifnop, in the earlier part of \!ri^ fifteenth century ? For he writes {e) that after the council of Latefan tithes could not be granted to any extraneous church or monaftery. However, the error of fo many of our common lawyers, before it was remaiked by the learned com- mentator, had been pointed out by Sir E. Coke (/), who alfo cites the exprelTions of one of the judges in the feventh year of Edward the third to the fame effed. To this (£) decretal epiftle, addreiled to the archbifhop of Canter- bury, and received here as law by general confent, may in a great meafure be referred the flable and final eftablifhrnent andfecurity of the parochial clergy's right to their tithes. They are reprefented, indeed, in feveral of cur cid law (i) Cantuarien. arcliiepifcopo. Ut tiene^ vel appellatione cujuflibet, feu ccclefiis parochialibus jufle decimx confuetudine haftenus obfervata, perfolvantur.' Pervenit ad audientiarxi quod canonicum fuerit ordinare, et noftram quodmulti in dicecefi tua de- facere, quod fiatueris per cenfuram cimas fuas intcgras, vel diias partes eccleiise nrmiter obfervari. NuUi ipfarum non iliis ecclefiis, in quarum ergo,«*<;c. confirmationis, &c.Datuna parochiishabitant, vel ubi prsedia ha* Lateran. 1 1 nonas Julii. Inner c. iii. bent, et a quibus eccleriaftica perci- cp. torn. ii. 452. Colonice, 1575. piuntfacrament3jperfolviuit, fed eas (/:) 2 B. Com. 27. aliis pro fua diftribuerunt volur.tate. (^) 2 Inftj 641. Seld. c. vi. § 7. Cum igitur inconveniens eiTe videa- Gv/lII. Rep. 375", 388, 1556, T569. tur, et a ratione diffimile, ut eccleiise (^) Prov. 160. Deg^e, p. 2. quae fpiritualia feminant, metere non c, 2. 2 Vin. Left. 87. Sec alfq debeantafuisparochianistennporalia, Gwill. 187. ct habere fraternitati tuae auftoritate {f) 2 Inft. 641. and margin, praefentium indulgemus, ut liceat Sold. c. viii. ^ 23. tibi fuper hoc non obll. contradic- (^) See Titg^ 5, c. 2. 589. Gibf. t. XXX. c. 3. 2CQ.4j;.b. (w) 2 R.0I. E.ep. :6i . Gwill, 375. i SaunJ. 142. Watf. c. 4;. ("J') Watf. 410. Gw-Hi. 200. Pigot V, Jieio.T. C be j\ Law of Tithes, Ch. II. be predicated of tithes being in their primitive nature fpi- ritual ; and as the tenth {x),{o may the feventh or fifth fhock be referved as a rent from the tenant ; and it was the opinion of the Court, that the prefcription here v/as good upon this diflinaion. But to portions of tithes properly fo denominated, the prefent (j) right of laymen is general- ly confidered as deiived from the religious houfes to which they belonged, and from which they came to the Crown and its grantees. Hence it feems underflood, that there are in this country no remaining and fub filling inftances of the abufe prohibited in future (:::) by the coun- cil of Lateran, 'vi-z. grants or infeudations of tithes from Jaymen to laymen. Although a layman cannot prefcribe for tithes {a)j yet, from the number of portions in lay hand.% it is not now neceifary for him in a fuit to de- rive particularly the title from the monailery to which the portion, belonged, but he may alledge generally, the fcihn of bimfclf, or of tiiofe under whom he innnediately claims. I'or the omiffion of dating tlie title at large can not influence the merits of the caufe, nor prejudice the adverfc party in his right to the tithes, or to any difcharce or exemption from the payment of them. This matter was finally fetiled in the reign ~ of George I. by a decilion of the lords in parliament, faiil to be agreeable to former precedents, and to which fubfequent determinations have certainly conformed. In that cafe it was juftly argued, that by the feveral (a; Scld.c. vl. 5 6. GwiD. 164. (a) 2 Bro. Ca.Parl. 514. Gvvill. 2.11. 6",o. Crayhorae v. Taylor, ibid. {y] Gibf. t. X5X. C.3. liio. Lowther V. Bolton, (a) Seld. c. vi. § 4, flatuses Gh.II. To whom Tithes are due.. la ftatutes {b) for dliTolving religious houfes titheSj which havs become the property of" laymen, have acquired the nature and ail the incidents of temporal inheritances. In particular the flatute 32 H. 8. c. 7. § 7. enacts, that tithes, or other ccclefiallical or fpiritual profits, then or thereafter made temporal, or admitted to be in temporal hands, may be fued for and recovered in the temporal courts, in Hke manner as lands and other hereditaments. No remedy is by this law given in the temporal courts againft perfons negle^Sling as occupiers of land to let out their tithes ; -but fuch cafes are exprefsly referred to the ecclefiaflical tri- bunal. The defendants to be fued by virtue of this flatute are thofe who claim or h.old an adveife feifm or ownerfhip in, or as parcel of the temporal inheritance. To this purpofe, feveral kinds of real alliens are diftinctly enumenitcd j which it feems could {c) not be maintained before f.r tithes, as fuch, (that is, not appearing to be a b) pioiit, r? of a tenth ihock referved) although brought bv f ; ■laal perfjiis, who in that capacity were always q\ii:'iiit:d to hold this ecclefiaflical revenue. A real {d) adtion called an affizc was fued by authority of this ftatute not long after the paffmg of it; when various exceptions were taken ; the fird; of which was, that the writ v/as of freehold iufSiead of ^being for a portion of tithes ; to this it was anfwered, that the old form of the writ was fuHicient, and a fpecial fubjeft of de- mand might be fet forth in a fubfequent part of the re- cord J and It was alfo holden, that the allegation in the writ was true, the flatute having made tithes freehold, as well as lay inheritances. This fpecies of action is nov/ become (3) 27 H. B.C. 28. (0 Year. B. 44E.3. 5. 21 H. 7, 31H. 8. c. 13. 36. Gwill. 121, 21 1. 32H.8.C. 7. (<^;Dy. 83.3. Gwill. 119, r- I. 37 H. B.C. 4. Dean and Ciiapter of Brillol t. 1&2E.6. C.14. Gierke. i&aP.&M, c. 8. §38,39. C 2 ©bfoI«te, 20 La%o of Tithes, Ch. II. obfolete, and the mixed adlion of ejeflment {e) which hath fuperfeded it in praclicc was long fmce determined to lie for tithes, againfl the adverfe claimant of the temporal inheritance. «Faither, as real eflates, a hufloand (f) fliall be tenant by the courtefy of tithes, and a wife (hall have d-nver of them. Yv'nts of dower are indeed particularly mentioned by the (latute : on one ig) of wliich occafions where the countefs of Oxford was demandant, it was refolved, that the proper affignment of the dowrefs's thirds v/as by allotting to her the third tithe fhock and the hke, and not the tithes of a third part of the ai-able land, for then the occupier might forbear to cultivate or fow the affigned fpot. SirEdv%'ard Cokc(/6) cites as am^axim '- iiullus " pro decimu qua; fiint fpiriiuales de aliqiui reparations *' ponrisfcu aliquibus orseribus temporalihus onerari dcbet.^' But at this day (he adds) if tithes be in the hands of tem- poral men, they are by reafonofthem contributory to temporal charges. Still indeed (i), fpiritual perfons and beneficer. are exempt from charges at common law, though liable to the burthens impofed by ftatute. I.allly, fo completely are tithes m lay hands become temporal property, xhat the (y) right to themi is alltts in the hands of an heir or executor for payment of the deceafed owner's debts only (fays Sir E. Coke) they have this ecclef'ailical quality remaining, that the proprietor may fue for the fubtradion of them in the ccclefiajflical court. (/f^ I Cro. 301. W.Jon. 321. count of firft fruits, and other Degfre, P. 3. c, 18, charges due from incumbents, and (■/) I Inft. 1 159 3. where it appears that impropriations {g) II Co. 25 b. are fubjeft to the payment of pro- f/j) 2 Inft. 641. curations, but donatives are exempt, (i) Degge, P. 2. c. ifj. wherft ij ) 1 l\A. 159 a. there is a ckar and judicious ac- But Ch, II. To vjhom Tithes arc due. 2 J But a portion (k) of impropriate tithes cannot be parcel of a manor, nor of copyhold tenure, nor clemifable by copy of court roll; for which one rcafon given is, that tithes could not be iinmemorially demiiablc, becaufe (/) before the council of Latcran no ^tbfolute exclufive interefh in them belonged to any individual. This rcafon is fcarcely fufucient. 1 he real effed of the decrees of that council has been before (hewn, and there can be little doubt that in many fpots tithes were devoted by pardcular fpecial endowment in permanent ex- clufiye right to parifli churches, as v/el! as to monafleries. Another, and to me more fatisfaftory reafon,is alfo afngned, nam.ely, th.at tithes are of fpiritual origin, and of a diitin£l nature from a manor. And this is correfpondent to the ancient principles of our law, according to which all (w) ecclefiailical pofieflions are holdcn by the free tenure of frankalmoigne. Tithes therefore in the enjoynjent of fpiritual pcrfons, or of fuch lay impropriators as ha\ e fucceeded them in their revenues and immunities are freehold eftates, whatever be the condition of the lands themfelves out of which they iffue, being a feparate and diilind inheritance. Thus it feems the lay impropriator of tithes ariling from copyhold lands is entitled as a freeholder to vote at couiity .elediions. In this view tithes are diftinguiihable from rents, and fimi- lar charges iiTuing out of lands, which follow the nature of their principal, and cannot be freehold, unlefs the flock, from which they fpring be alfo of that tenure. Land {?i) merely freehold though h olden of a manor, is not parcel of it ; and there appears to belef£reafon,thattituesbeingfrechold fhould be parcel of a manor. But the entire parfonage (o) may be a (i) I Cro. 293,814. Gwill. 164, (»?) Braft. lib. c. 28. i Black. Sherwood v. Wiiichcombe. Gwill. trad. 1 15. 1 1 6. cited. 2 Vin. Lcct. 3 i . 1569. Sands V. Drury. {n) 2 R. A. 120. [b See C-.vm, 123. n. 375, 3-8. U) Watf. 362. C 3 manoi 22 Law of Tithes, Ch. II, manor of itfelf, for If before the ftatute (/>) of quia emptor es terrarum the parfon with the patron and ordinary granted parcel of the glebe to divers perfons to hold of the parfon by divers fervices, the fame would have made the parfonage a manor. Impropriate {q) tithes, like incorporeal hereditaments in general, may be the fubjeds of grants and other conveyances, and will pafs by the name of '• hereditaments." And by the before-mentioned flatute 32 H. 8. c. 7. § 7. it is fpecially enacled, that writs of covenants and other writs for fines to be levied, and all other affiirances to be had of any parfonage, vicarage, portion, penfion, or other pront " called ecclefiaftical or fpiritual" then made temporal, fhall be thereafter devifed and granted in the clianccry, according as hath been ufed for fines to be levied, and afiurance to be had of lands. Thus diflinft portions of tithes, which have immemorially fubfifted, as well as a whole imprc^ priate rectory, may be the fubiecl of conveyance hke other real property. And if (r) Titius have a portion of tithes, and afterwards become ov/ncr of the rectory where they arife, the portion is not extind, but continues grant- able, for it may be of greater antiquity than the eUabhih- nient of the redcrial right m. that diftricl:. Sometimes a grant or conveyance of a portion of Impropri-. ate tithes will even be prefumed, and pofitiveproof, for the pro- duftion of the grant, will be dili: -nfed with. As where {s) the fame perfcn foon after the Norman conquefl was feifed of a manor,andoffuchportionasdirtincl andfeparate from therec- tory : the portion was granted by Iltnry VIIL to the dean and chapter of Rochefler,the manor and limited eilate then being {p) 2 Vin. Led. 3?. & n. r. Sir E. Coke's cafe. in Degge,P.2. c. i8. (,) GwiU. 151 q. Oxenden t. ir) aRol. Rep. i6i. Gwill. 375. Skh.ner. in C'li. ir. To -whom Tithes are due. 23 in other hands; hut the dean and chapter never had poireflion under the grant of fuch portion, never having re- ceived tithes from the eflate j and although in the feveral facccfiive conveyances of' it there was not exprefs men- tion of tithes, lord Kcnyon held, that the ovv'ncr of the eftate might, under thefe circumftances, edrd:»lifli a good title to the tithes alfo. Who could diflurb it ? Not the rector, for thefe tithes have been fevered from the reftory almoil from the conqueil j if indeed they had been part of the redorial tithes, no time would have barred him ; where exifts any other title ? The dean and chapter before the difabling flatute, 13 Elizabeth, might have alienated them ; after a poflellion of two centuries and a half by the fucceflive owners of the eftate, a conveyance of thefe tithes from the dean and chapter is to be prefumed. The poflciTion here fpoken of was rather a retainer, which muil nccelTarily happen, where the right to tithes and the occupation of the lajid, whence they arife are united in the fame individual. There refults a fufoenlion of actual payment, but no iufpenfion of the abflradt right. Thus, if (/) a parfon is fcifed in fee of and occupies tithable lands within his own pariili, fuch eftate during this unity of poiTeliion hath with fcm^e impropriety been called mitithable, becaufe he cannot pay tithes to himfelf; but if he leafcs his reftory, then the parfon himfelf ihall pay tithes for his other eftate to fuch leiTee ; and if he aliens his other eftate, he Pnall receive the tithes of it as rector, from his alienee ; becaufe the right of tithes cannot be utterly extinguiftied by a temporary unity of pofteflion. If he fows {v) his glebe, and fells the corn growing, he Tnall receive tithes from the vendee. If he {u) leafes his glebe for years, rendering (/^Dy.43a. Gwmii?, (w) i Cro. lO'l. Gvvill ii;. a. {v] Degtj*?, P. 2. c. ? C 1 rent 24 Lazv of Tithes, Ch. II. / rent " for all exa6lioiis and demands" the IcfTee fliall pay- tithes for fuch glebe, for they will not pafs to him by thefe general words. But a grant [lu) of ail a man's right, t'.tle, and intercft in tithes, will pais a Icafc of them. Pofitive and exprefs alienations of the inheritance in im- propriate tithes afford little fcope f.jr obfervatioii" .c^erived peculiarly from the fubjecl of i'uch conveyance:.. But leafes of them, made either by fpiritual incumbents, cr corporations, or by lay impropriators, which transfer only a partial, or temporary intercft, require and deferve more particular difcufhon. By (.v) the ocuimon law, churchmen after being completely inducted into their benefices, and reputed to be feifed in fee in right of them, enjoyed as ample power of leafing as any perfon feifed of a temporal eflatc in his natural capacity, provided the confent of neceffary parties was previoufiy ob- tained. To leafes by ecclefiaflical corporations aggregate, no confent waseuential. But to thofc made by foie eccle- fiardcal corporations as bifhops. deans, arch-deacons, pre- bendariesa. parfons, and vicra-s, the confent and affirmation of others were required in order to bind' their refpective fucceifors. Thus, the demiCes of parochial incumbents were to be fanclioned by the patron and ordinary, and thofe of birncDG by the chapter. Confiderable alteration, however, is introduced by the fever^ enabling and reflraining flatutes, as they are called, namely, 32 H. 8. c. 2 3. i EL c. 19. 13 El, €. 10. 14EI. c. II. & 14- 18 S^- c. II. 43 EI. C.29. and J lac. I. c. ■?. Tithes belonging to fpiritual perfons, being a frequent fubjeft of fuch leafes, it is material to notice the efiea of thefe laws. Their principal refult fo far as {w) 2 Cro. 3! 8. Gv.'ill. 249. {X) Watf. c.41. i Inil. 4^ a. Ar:.okl V. Bid-<;od. aifea-s Ch. II. To ivhom Tithes are diie» 25 aftefts the genera! obje£ts of thefe enquiries is, that all eccle- fiaflical elemofynary corporations, and all parfons or vicars are retrained from^making any leafes (other thanof hourcs)^ except fuch as faall not exceed twenty-one years, or three lives from the making ; they muft not be for that number both of years and lives, but they may be for a Icfs term or fewer liv^^s; although indeed, till a late flatute which I fhall prefently mention, leafes of tithes could be made for vcars only, and not for a life or lives (vvhich latter are freehold leafes), fo as to bind the ecclcfiaflical fucceffor. Another important qualification of leafes purfuant to thefe flatutesis, that the antient accuftomed rent, or more, mufl be referved. The (j) laft requifite I fhall mention as affefting the fubjedl of our enquiries, is, that in reftraint of concurrent leafes. It is, however, to be obferved, that the reflridtive (z) ftatutes do not empower the making of leafes unauthorifed by the com.mon law. Therefore, a parfon or vicar, although he be rcftrained from leafing for longer than twenty-one years, even with the confent of the patron or ordinary ; yet is not enabled to make a leafe of any kind, or for any period, fo as to bind his fucceffor without obtaining fuch confent ; for leafes of parfons and vicars are exprefsly excepted out of the enabling flatute {a) of Henry VIII. and, the other acls are of a difabling tendency. It is alfo 10 be rem.arked that, although {b) it be provided by fome of thefe afts, that leafes not warranted thereby fhall be utterly void and of no effecl to all intents, conflruclions, and purpofes, yet fuch leafes are not void, but good againft the lefTor himfelf in the cafe of a fole corporation ; or if it be a corporation aggregate iy) See 2 Black. Com..c;T9, 321. (z) 2 Black. Com. 331. i LiH. Indeed it has been a doubt wiiether 44 b. {a) § 4. tithes could be leafed at all within thefe llatutes, and antecedentlv to ftat. 5. Geo. 3. c. 17. as mentioned (^^ ' ^"^- 4^' »' ^ ^3 ^^- n. 4- hereafter. 2 6 Lu'iu of Tubes. Ch. 11. fo long as the dean or other head thereof remains, for the flatutes were made for the beneh!; of die fucceflTor. More- over, it feems, that if a \fc)Ic (c) not warranted by the flatutes, be made of tithes for years by a bifhop, this is not void, but voidable only in refpecl even of the fuc- cefforjand If the latter accept rent, it amounts to a confirmation. For it is faid (d), that before the third council of Nice in the year 7 1 o, bifhops might by their fole alienation have bound the fucceflbr for ever; and although by that council fuch alienations are retrained as injurious to the church, and the confirmation of the dean and chapter made neceflary, yet this is only as to binding the fucceiTor. For the fee fmiple (e) is reputed to continue in the bifhops, and therefore leafes for years made by them fub£fl after their death, or removal, till avoided by the fuccelTor, with the aid of the canons m.adc at that council, which have received a fanclion from our law. But parfons ^nd vicars never had fuch power of alienation ; and though (/) they have been deemed for the benefit of the church and their fucceffors to be feifed of a fort of qualified inheritance, they have been allowed an eftate for life only, as to any ads that might prejudice the next incumbents. Therefore, leafes for years by parfons and vicars not confirmed by the patron and ordinary, be- come abfclutely void by the death, or cefTion of the lefTcrs, aad are not confirmed for the refidue of the term againfl the fucceffor by his acceptance of rent. I fay their leafes for years, becaufe leafes for life or lives of tithes made by any ecclefiaftical perie-ns, are, on the prin- ciples of the common law, without the aid of the flatutes, ff^i Br. t. Acceptance, pi. 9. t. matters but not all flridtly in point. Leafe, pi. 18. Moore 778, (e) PL 264. id; Bac. Abr.t. Leafes H. where (/) j Inil. 341 a. u.^fiV authorities are cited a& to thcie which Ch. II. To vjhom Tithes are due. 27 which I fhall prefently mention, valid only an-ainfl the lelFors themfelves, and are abfolutely void againfl the fuc- ceflbr, and incapable of being ratified by his acceptance of rent ; and, alfo, becaufe {g) the leafes for life or lives by parfons or vicars of things that lie in hvery, as of their glebe land, are avoidable only by reafon that fuch leafes being freehold could not be effected ^vithout the folemnitv of livery of feifin, where any thing {h) corporeal was con- veyed, and confequejitly required the entry of thefucccflor to defeat them, who could not fo enter after rent received, or any other acl donebyhim in affirmance of the leafe. In like manner if a diffcifor or other wrongful poffefTor of lands without the right thereto conveys an eftate for life by livery of feifm, a freehold intereft actually pafles ; which is founded on the eflicacy of this folemn mode of aiTurance with( ut regard paid to the imbecility of the alienor's title. This digreffion was necefT.iry to explain, why I confine the doctrine of leafes by parfons and vicars without confir- mation by patron and ordinary, being wholly void en the death or amotion of the lefior, and incapable of being fub- flantiated againfl the fuccciTorj to leafes for years only. It feems, however, that the leafes (/) of parfons confirmed by patron and ordinaiy, and otherv.'ife conformable to the ftatutes, are good, although made by a parfon de fado only, and who is afterwards lawfully deprived of his benefice. The acceptance of rent, which is to afiirm the void- able leafe of a preceding bifhop, muff be by him, who is perfectly in poffefTion as fucceifor, at lead accordmg to one cafe (y), in which fuch acceptance of rent v/as deemed unavailable, becaufe the fuccefibr had not at the time obtained reflitution of the temporalties : but it may be ig") Br. t. Acceptance, nl. %f>. v. Hill and 2 Anfir. \\^. S. C. f. Leaf.-, pi. 19. (,-, J R.A.476. ijj) See Gwill. 142 1, Brewer .'/) Palm. 175. queflloned, 28 Law of Tithes. Ch. II. queftioncd, whether that point would now receive the fame adjudication. It appears more equitable {k), that the rule fiiould be mutual ; that if the leafe is voidable both lelTor and lefTee fliould be bound by affirrriance ; or if ab- fblutely void without entry, or other ceremony, both fhould be difchargcd. In the latter iadance the fucceflbr has no remedy under the covenants in the leaie, nor for the ftipu- lated rent accrued in his own time ; but I apprehend he might maintain an aftion for ufc and occupation, or for the mtfne profits after a recovery in ejeSment. Befides the reflrlclions above mentioned and alluded to, there exified till very lately another mode, by which the leafes of beneficed clergymen were rendered void. This happened in cafe of iheir non-refidence, it being firfl fo cnacled by fiatute 13 EI. c. 20, But that ftatute with all its legiflative explanations, additions, and alterations, and fo much of the ad 3 Car. i. c. 4. as make the fiiil a£l perpetual, are by ftatute 43 G. 3. c. 84. § 10. now repealed. The refidence of the beneficed clergy is enforced fo far as was judged proper by new regula- tions, without fubftituing any new provifions by reafon of abfence from their cures in reftraint of the vahdiiy of their leafes ; on the csntrary, this to a certain extent may be ranked as an enabling ftatute. For the ftstute 21 H. 8. c. 13. prohibiting fpiritual perfons from taking. farms, is in fome meafure abridged in its operationj by the recent ftatute, by which it is ena£l:ed5 that it fiiall be lawful for any perfon having or holding any vicarage or perpetual curacy, or for the ftipendiary curate thereof refpeiStively, to occupy by himfelf or any other to his ufe in farm of the leafe or grant of any perlbii or perfons, the impropriate parfonage, reftory, or vicarage refpedlively, of the parifn of which fuch fpi- ritual perfon fiiali be the vicar or perpetual curate or ftipen- ii) P'^pb, 1 2-1. (/) § 7- Ch. II. To ivhom Tithes are due. 2y diary curate, or any part or parts thereof refpeaively, or to take any profit or rent out of any fuch farm without being fubjedl to any pains, penalties, or forfeitures under the recited acl of Henry VIII. The taking, thus autho- rized, ii is to be remarked, is confined to the parifh where the Icffee ofliciates, fandioning a leafe of premifes within its boundaries only. But independently of fuch local limitation fome doubt may be entertained as to tithes, whether they are reflrained from being leafed to fpiritual perfons by the law of Henry VIII. under the words " tenements or *' hereditaments. I have before intimated that freehold leafjs of tithes, were heretofore void in favour of the fuccefTor. I'hus, where a bifhop {711) being fcifed in fee of tithes in right of his biflK>prick, made a leafe thereof for three lives, render- ing the antient rent at which they had ufually been de- mifcd J the leiTor died, and the queflion was, whether the leafe was binding upon the fuccefTor : it was refolved, that it did not bind him ; for he had no remedy for the rent, cither by diflrefs, or by action of debt, becaufe it could not be called rent ; but it would have been otherwife if it had been a leafe for years, for in fuch cafe an aftion of debt may be niaintained. Annual payments {n) referved out of incorporeal liereditaments, were not by our old lawyers allowed to be properly rents, for this reafon, that they were not recoverable by diflrcfs, the terms being convertible. Such payments could not be diilrained for, becaufe incor- poreal hereditaments, as creatures of 'the imagination, have no locality ; and by the antient flatute of Marlbridge 52 H. 3. c 15. (which is faid {0) to be but an atHrmance of the common law), diilrciT:;:. mud: be locally made. Confe- quently, if a yearly payment had been referved on the {m) Moore 778. (0) 2 Inft. 131. {n) a Yin. Ledt. 67, & feq. demife 30 Law of Tithes, Ch. IL dcmife of tithes, and fomelhing corporeal, as a barn, jointly, the fame was confidered as a rent ifluing ip) wholly out of the bara in refped to the remedy by diftrefs. Neither could the fuccelTor maintain an adion of debt on a freehold de- mife of tithes during {q) the continuance of the eftate for life or lives ; becaufe that is a perfonal action, and to re- cover rents fo referved would be to recover feifni, which fpecles of judgment is defcriptive cf a real action. Hence it is that (r) even acceptance of rent by the fucceed- ing bifliop, would not have availed to fubflantiate a free- hold demile of tithes, becaufe if the rent aftervv^ards became in arrear, he was without remedy under the leafe, being precluded from the eafy and obvious refources of diftrefs and allien of debt, and alfo from bringing a fpecies of real aclion, called an affize (x) of rent, for fuch payments out of things incorporeal arc no legal rents. Now, however, by the ftatute above alluded to, 5-G. 3. c. »/. the fame power of bringing anions of debt, which by a former law 8 Ann. c. 14. §4. had been indulged to leiTors againft tenants for life as to proper rents, is extended to fole and aggregate ecclefiaflical corporations, heads and fellows of colleges, and ethers having power of leafing, to recover rent referved on tithes and incorporeal hereditaments, although leafed for life or lives. The ftatute of George III. recites, that it may be doubtful whether by the laws in being fuch lefibrs as aforefaid could grant 4-eafes of tithes or other incorporeal hereditaments, which lie in grant, and not in livery, for three lives or for twenty-one years, although the antient rent or yearly fum is thereby referved, and all other requifities prefcribed by the a£ts of parliament are juftly obferved, by reafon that there is ge- nerally no place wherein to diftrain for fuch rent or yearly 'p^ Gwlir. 359. (r) 2 Cro. 173. q Si. 8 Ann. c. 14. § 4. \s) 8 Co. 4*5 a fum: Ch. 11. Te whojii Tithes arc due. 31 fum ; and that it may alfo be doubtful, whether m cafes of fuch leafcs foriife or Uves, there was any remedy by action of debt or otherwifc 5 but it is not reprcfented as in any degree qucftionable, whether the lefTors and their fuccelVors might have that perfonal fuit on a demife for years : and the other doubts recited may perhaps be thought re- folved by the foregoing difculTion, except as to the power of fuch ecclefraftical and other perfons to grant leafcs for years of tithes (/) and other incorporeal hereditaments, becaufe, although here the remedy by adion of debt might be had, yet the other remedy by diftrefs faihng, and fo the payment referved not being properly a rent, the antient rent could not be faid to be referved, which is one of the requifites prefcribed by the a£ts of parliament. After thefe recitals, the niw fliatute proceeds to give validity to all fuch leafes of tithes and incorporeal hereditaments (with a faving, however, of the reflrictions impofed by the founders on colleges, and of the like local regulations), and allows the aclion of debt to be maintainable by the leifors themfelves, their perfonal reprefentatives, or their fucceffors for the rent due on fuch leafcs, whether made for life or for years. But the a£l of parliament names divers corpora- tions fole, and aggregate, and then adds, " any other per- fon or perfons having any fpiritual or ecclefiaftical promo- tions," without any mention of lay impropriators, and there- fore a queftion has been raifcd (i;) of what remedy at com- mon law fuch lay impropriator could avail himfelf to re- cover the yearly payments referved on a leafe grantfed by him of his tithes for life or lives if he fliould fo demLfe them ; but perhaps that law now giving fuch payments the denomination of rents, they might fall within the provifions of the flatute of Anne above-mentioned ; if not, there is this defetl which ftill remains to be fupplied. (/; See 1 Inll. 44 b. & 13 cd. (v) 2 Vin. Leil. ;«. By 3^ Law of Tithes. Ch. II. By the ftatute of frauds 29 Car. 2. c. 3. all greater interefls in lands and hereditaments than for a term of three years, muf]: be created by fome writing. At common law {u) and independently of the ftatute, it feems no regular leafe^ even for one year of tithes (as incorporeal hereditaments), could have been made by parol. But {w) if a tithe owner agree with another to permit him to take the tithes of com and hay for fix years, and permit him ac- cordingly, this is a good confideration (though (.v) not valid as a leafe, and though no legal intereft pafles in the tithes) to found an action to recover the payment ftipulated for ift return. Freehold leafcs of tithes are regulated by the fame common law principles as the like quantiuu of interell or cilate in corporeal hereditam-ents, whether the demtife is made by a fpiritual reclor feifed in right of his church, or by a lay impropriator feifed of a re£lory, or a portion ©f tithes being a temporal inheritance, as appears by the fol- lowing cafe iy) : Rabbit being feifed of land to him and his wife and to his heirs, took a leafe from Boslb, parfon of B. of all his tithes of this land, by indenture, to hold frcm Michaelmas mxi^ to him and his heirs during the life of Bcolh, The leiTee died, and his Vv^idow having the land for her jointure, married Fowler^ who demifcd it to Edmonds \ and the heir of Rabbit being entitled to the tithes under the leafe to his anceRor [Fozvler 1016. his wife having no claim to them) demifed them alfo to the fame tenant, who thus held the land and the tithes by diPandt titles from feve- ral perfons. Under thefe circumftances Booth fuQd Edmonds (u) I Freern. 234. anon. Seethe cannot maintain a fiiit without join- csTcs cited GuiU. 1217, 8. ing the redor. GvvilL 89S. Hen- iiu) Skin. 1 13. 2 Show. 307. ning V. Willis. Eaton V. Sherwin. Cj) Yel. v. 13 !. Gv/jll. 22S. Ed- (x,^ For a fjuiT/i lefTee by parol monds v, Bcolh. 8 ia Ch.ir. To ivhom Tit.lcs are due. 33 in the fplritaal court for tlthss of the land in derogation of the leafe granted by himfelf ; and on an application, to the court of King's Bench to (lay fuch fult, it was allowed to proceed by the opinion of the majority of the judges, (then being five) J on the ground that the leafe to E.abbit was abfo- lutely null,becaufe generally by the common law no freehold intereft can be granted commencing i?! future, 2S here, from the enfuing Michaelmas. I have thus recited the cafe not fo much to evince this p.^int as to elucidate another,which could not otherwife be explained, and feems to merit fome at- tention. It was infilled, in fupport of the leafe, that it was made only of the tithes of that land of which Rabbit\v2S then the ov/ner, fo that it did not enure by v/ay of intereft, but by way of difchargc and retainer ; for a man cannot have tithes of his own land ; and then a dlfcharge may well com- mence at a day to come. But to this it was anfwered, that the pleadings alledge that by force of the leafe in queftion, Rabbit \N2iS feifed of the tithes to him and his heirs during the life oi BGGth,2.rA being fo pleaded by way of inter* eft, they, as Judges, could not intend or conftrue it otherwife. Such leafe cannot enure by way of difcharge, for it contains no words to that effecl, which proves it was not intended by the panics to operate but by way of intereft ; and that is more beneficial to the leiTee : for, if it fhould enure by way of difcharge only, it is fuch a privilege annexed to the land as cannot be granted over ; but it may, if by way of intereft, and fo it feemed underftood by the perfons con- cerned, for the wife was owner of the land, but the fon took upon himfelf, to be owner of the tithes, which could not be if the firft leafe had enured by way of difcharge. Such a cimtracl (z), however, in the nature of a demife may enure (with apt words for that purpofej by v.'ay of difcharg-e from tithes, beins; effecled bv deed, acd entered (3) 1 Cro. 157. D into 34 '^0 whom Tithes arc due, Gh, If = into for a reciprocal valuable confideratlon, as an annua! payment ; and it may be good during tlie incumbency, and be explicitly extended to the farmers and tenants of a land- lord fo contracting. Again, a dtmtfe {a) of tithes during fuch time as the lelTor fliall continue redor or vicar, paflTes to the leflee a freehold, fuch being the eflimation of uncertain interefts in ^11 fpecies of real property, which may poiTibly endurfe for any life or lives ; and v/ith refpeO: to incorporeal here" ditaments as tithes are, and lie in grant, the mere traditioil of the deed has the fame force as livei-y of feifm in the cafe of land ; but if a redorial or vicarage houfe, (which are corporeal hereditaments, and lie in livery) are demifed- with the tithes, and the latter only pafs as parcel of the redory or vicarage, the intended freehold demife is ineffec- tual for the whole, as conveyances at common law, with- ©Ul livery of feifm. A lay impropriator in fee, may kafe his whole redory cr a parcel of It, as the tithes of a particular farm, for any number of years without reflraint ; and if he demifes fach parcel (3), and fubfequently to that leafe makes a grant of the redory generally, the grantee will be entitled to the tithes of that farm, after the lelfee*s term is expired, though if the leafe is made (as commonly) to the occupier of the land, there is, during its continuance, a fufpenfioa of adual payment of thefe tithes, for they exift in fpecu- ktion as parcel of the rectory ; and the reverfion in them fubjed to the term paiTes to the grantee. As a lay impropriator in fee has the uncontrolled dif- pofal of this fpecies of real property in his life-time, fo doubtlefs, he may by liis will legally executed, devifs a (a) GwiU. 1421. a, Brewer V. (3") Gvvill. 358-9. Dickinfon v. Hill, from 2 Anftr. 413 ReaJe. partial Ch. II. To 'whom Tithes are due. 35 partial or abfolute intereft therein ; and if a man {c) de- vifcs all his lands in A. hav-ng no real property, except a portion of tithes there, the portion will pafs to the devife notwithilanding the incompetence of the defcription, that the will may not be wholly irloperative. Having thus far, treated of the legal nature, and proper- ties of tithes, and of the feveral rights by which they may become due and be received, it remains only to fpeak of fequeftrations, which are within the fcope of the prefent chapter, both as defcriptive of the quality of tithes, and as /hewing who may have a temporary right to demand them. Seqaeftrations arc in ufe on various occafions : Firfl, it being incidental to tithes and other fpiritual pofleffions, to be exempted from the (heriff's power of levying thereout any judgment debt (which Sir Edward Ccke {d) enu- merates among the privileges preferved to the church by Magna Charta\ On {e) fuch fherilFs return to a writ of ex- ecution directed to him, thdt the defendant is a benehced clergyman, having no lay fee, a writ called a levari facias iiTues, requiring the diocefan to levy the demand out of his ecclefiaflical goods, and by virtue thereof, his tithes fliall be fequeflered. Such procefs, indeed, has been [/) con- tended not to be a proper fequeflration, becauie the return of the bifliop is to be (as of a fort of ecclefiaftical fherifF) fieri feci ^ or nulla bona, and nat feqitejirari feci ; but the dif- tindion refls in mere matter of form. Another (^) occafion of fequeflration occurs, where the right to a benefice is in controverly, and a fuit is depend- ing to try which of two claimants is the lawful incumbent (c^ Swinb. 140. 9 Ivlod. 74. tion, F. N. B. ^rg. i Sel^io. 3 Wms. 386. (/) I Mod. 260. 2 Med. 237. {d) 1 Inft. 4. {^) Watf. cxxx. {e) Burn. Eccl. L. t. SequeRrs- D2 of 36 ■ Laiv of Tithes. Ch.IL of a parfonage, or vicarage ; or after fentence agalnfl one party, who has appealed to a higher jurirdlcdon. The general courfe of proceeding feems to be this : —-On a proper petition in the cafe laft put, by either of the litigants, alleging the controverfy, and that oppofitioii is made to collet51ing the profits, the eeclefiaflical judge decrees, that the fruits of the church be fequeflered, and eommits the power of colle6ling them to the church wardens^ or fome others of the fame parifh, who thus acquire a tem- porary right of receiving the tithes ; which, Dr. Burn fays, it is beft, and mod legal for the fequetoators to receive in kind. But the judge previouily takes a bond from the poifons to whom this authority is deputed, with a condi- tion underwritten,- duly to colled the profits, and to render a jufl account thereof; and where the right to the incumbency is In difpute, he ufually appoints fome minifter to ferve the cure for the time, that fuch controverfy fhall be depending, and requires the fequeftrators to allow an appointed falary cut of the profits of the church to fuch officiating curate: and he aifo orders them to caufe the fequeftradon to be publifhed in the church in the time of divine fervice, that the pariHi- ioners (Jj) may know to whom tithes are to be paid. After the fequeflration hath anfwered its purpofe, and is taken ofr (as when a judgment debt is raifed and fatisfied ; or when the litigation refpe£ling the right of the benefice is determined), the clear refidue of che profits collefted is to de reilored ta the party entitled to them in fpeeie, if they remain fo, o)' if not, their value is to be paid to him. This the fequeftrators, if unwilling of their own accord, are compellable to do by the fpiritual ceurt, and if being fum- moned there, tliey delay coming to a juft account, the judge may deliver the aforefaid bond to the party aggrieved, ia order to his fuing upon it at the common law. {h) God, Rep. can. app. 15. A third Ch. IT. jf') recom- (i) God. Rep. 14. 2 Vent. 2>S- 3 Keb. 829. cont. {h) A vicar may be bound to re- («) Ayl. Par. i, can. 495. Ccd. pair the chancel, or to contribuie 199, iihereto, Lynd. 253, (0) Ayl. ibid. 3 Keb. 829. .(/) 2 Vent. 35. (j^) I Burn, 323. ^w} I Mod. 258. 2 Mod. 254, D 3 ifiends 3S Lavj of Tithes. Ch.IL mends the cou!*e proper to be purfued, and feems to think it neceflary for churchwadens who fue, to prove that the parties profccuted, (for there may be more than one im- propriator), have received tiihes or other profits belong- ing to the redory, fuiFicient to anfwer the repairs, and adds, they mufl fettle the prcp^ortion among themfelves. ^ On this cccafion, at leaft, however, it is requifite to diflinguifh between appropriations, and impropriations, though often mentioned indifcriminately. The latter, as may have been collected, from what has been before flated, are fuch parfonages as havin::^ belonged to the religious hcufes by the ftatutes for diifolving thofe bodies, cam.e to the king, and from him to his patentees^ and are now vefied in lay hands. The fame account may be given, I apprehend, of moft, but not q) dWporti^yis of impr .priate tithes, at prefent in lay hands. An appropriation (r) is where fuch a parfonage or other church preferment belongs to, and is in the polfeffion of fome ecclefiaflical corporation, fole or ag- gregate, and their fucceifors, of which there ' j)are alledged to be in England above a thoufand. And as to f»ich of them, at leaft, as never were the property of the religious houfes, and, therefore, certainly were net made temporal fees, by the ftatutes of dilfolution there appears no ground ({) to exempt them from the power of fequeftratlon for negledt' ing the repairs of the chancel, more efpecially, as corpora- tions aggregate (the more frequenc owners of them) are not capable of being excommunicated. And it feem^s clear, that (jS) where a prebendary poffefTes tithes:^ or other fpiritual revenue, as annexed to his pecu- lial ftail, or in his fr^le and diftinct ri^ht, a fequeltration may ilTue for dilapidations. But where he is only entitle^ {q) Gwill. f5!3, (i) 2 Mod. 254. (r) 4 Burn, io^ [u) i Sel. 52 1, (j) 2 Mod. 257. Ch. U. To ivhcm Tithes are due, 39 as a member of the body aggregate, the eftate of the cor- poration cannot be feqijeftered for the default, or debt of the individual. Another (a) commmoK occaHon of fequeftration is the a.voidance of a benefice. During the vacancy, the church- wardens are to receive the tithes and profits by the bifhop's appointment, under the feal of his court, to provide for the cure, and to render an account to the fuccefTor. Th/2 ordinary (y) has this power, though the rigbt of prefenta- ■tion be in the king, if he omit the exercife of it, that there may not be an interruption of divine fervice. Laftly, the (z) tithes and profits of a benefice may be fequeftered, where the incumbent neglefts the cure; and fuch was (a) the implied mode by which the ordinary was to coUeft, in order to duljibute among the poor of the parifh, one year's profits of the benefice of an incum- bent, not refiding, forfeited by ftatute 13 El. c. 2:". while that law was in force. It is?, therefore, confident with an- tient and fyftematic ufage on this occafion, that the recent ilatute 43 G. 3. r. 84. which repeals the former act, direfts its regulations to be partly enforced by fequeflration as to fuch non-refidence of beneficed clergymen, as is not autho- tifcd by licence, or exemption under the new law. Firfl, it is thereby properly and juflly provided, and in (b) con- formity to the principles of our old lav/, that (c) no peh.J.ties or cofls incurred by non refidence, and judijijient (hall be levied by taking in execution the body of the party fued, where it fnali appear that the dem-nd may be raifcd out of his preferment by fequeftiation within the term of three years ; fecondly, in (^') cafe of the diocefan's monition to {x) Ayl. ibid. God. ibid. (.i) Wat. c. xiiii. iy) Doa and Stud. dial. ii. c. 36. il) F. N. B. 305. Wat. 72. 2 Mod. 25JJ, {c) § 17. (z) Gods ibid. 15. (d) § 30. D 4 a 40 Lcti) of Tithes.. Ch.II, a fplrltual perfon to refide, and perform the duties of his cure, and no return made thereto, or one that is unfatif- faftory, it Ihali be lawful for fuch diocefan to ifTue an order in writing enjoining refidence, and if that be not com- plied with, to fequefler the profits, with a power, however, given to a party thinking himfelf aggrievtd, of appealing to the archb^ihop of the province. Laftly, if {e) a clergyman fhall continue three years under fequeCcration for non-refi- dence, or fhall within that fpace incur three fequeftrations, not being relieved as to any of them on appeal, his benefice fhall become ipfofado void, and the patron may prefent thereto fome clerk other than the party fequeflered, as ii vacant by natural death, or refignation, Sequeftration is only a temporal fufpenfion of the incum-> bent's perception of the profits. It is faid (/) not to bind tlie intereft, nor put the rector out of pofftiTion. Certainly iuflitution and induction de novo^ after ftqueftration is taken off, are not neceflary to reinftate him in his right to tithes. And {g) if the continuing incumbent, or fucceffor, as the cafe may be, is diffatisfied with what the fcquefterators have done in the execution of their charge, the more proper tri=> bunal in which to call them to account, and for redrefs, feems to be the fpiritual court ; and if he flill confiders himfelf aggrieved, he may carry on the caufe by appeal through the afcending feries of ecclefiaitical jurifdidions, U) ^33. (-) 4 Burn, 31 80 (/) J Med. 35-c. ( 41 > CHAPTER THE THIRD. Vlvtfions of Tithes ; and Matters between Re6lor and Vicar ^ \ ITHES have been varioufly divided and claffed. I. (a) The moft approved, and unexceptionable di- V ill on of tithes, generically, feems that which diftributes them into three clalfes, of predial, mixr, and perfonal. This diRribution is alluded to by Hhe definition of tithes given in the laft chapter. Predial tithes, or tithes (b) quid' quid Qritur ex pi'csdis, are derived immediately from the ground, as corn, and hay, and other fruits of the earth. Mixt tithes are produced mediately through animals, which have their fuftenance and nourishment from the ground. Perfonal tithes arife from the labour, and induftry of man. The firft material diftinclion flowing from this divifion, is made by the (larute 2 and ? E. 6 c. 1 3. which requires all the king's fubjects truly and judly without fraud or guile to fet out and pay their predial tithes {eo nomine) m their proper kind, in fuch manner as hath been of right yielded within forty year:- next before the making of that aft, or of right ough: to have been paid. The neceflity i) of fett'Hg out tithes, is applicable to predial tithes only, {a) T>oQi.. 8i Stud, dial. ii. c. 55. Trin. Coll. Camb. from Anfto.760, ^313.- Degge, p. ii. c. i . — Gwill, (b) Rebuftus cited, Gvvill 439. 35^? 29, 429, 430. 1447. — Scan v. [c) Gwill. 428. Norton v. Clarke^ 7 Mixt 42 Law cf Tithes, Ch.IIL !Mixt tithes are faid to arife from the earth alfo, but by means of animals depaflurcd on it, or otherwifc nourifhed with its fruits. In this clafs, therefore, are {d) enume- rated, not only the live encreafe, or young broods of cattle, and poultry, but other profits refulting through the medium of animals fo nurtured, as wool, milk, cheefe, and eggs. In (e) a recent cafe, the principal queftion was, whether agiftment tithe (that is tithe of paflurage, or more properly (/) tithe in refpe^l to herbage, or grafs eaten by cattle not dthable), was a predial, or mixed tithe. To fhew it to be the former, it was argued, that it was paid not for the en- creafe or improvement of the animal agiilcd, but for the grafs eaten by it, and was proportioned to the value of the grafs, not to the value of the aftual improvement ; that wljen the occupier of land does not agiil his own cattle, but thofe of llrangers, the tithe for the agiftment of barren tattle is due from the occupier as owner of the grafs, and that if the grafs has before paid tithe of hay, no tithe is due for the agillm.ent of the aftermath ; hence it was inferred, that the tithe was attached to the grafs, not to the cattle. On the other hand, the aforefaid flatute of Edward the Sixth was relied on as eflabhfh'ng, that all predial tithes were fuch as might be fet out, agiftm.ent tithe is incapable of being fo i and it was among other things contended, that animals reared for the plough, or pail do not pay tithe when young ; yet, if the tenant changes his mind and fells them, agiftment tithe becomes due from the firfl ; but if it were tithe for the grafs It would have been due immediately, and would not have dopended on a future eveiit. But the court held, that the arguments ufed on the part of the farmers, fatif. (d) Watf. c. xlix. (/) Gwill. 1335. In Ellis v. Saul, (f) 3 Anfto. 760. — Gwill. 144). from i Anilo, ^33. Gwill. 1447. iS-can V. Trin, Coll. CSmb. & Wood. f^ftorily Ch.Iir, Dhifton cf Tithes, ^c, 43 faftorily proved, that agiftment ti:he is tj;ie tithe of the prrafb eaten, which :iril'e«= iinmedipteiy from the foil, and, therefore, it is a predial tithe ; and as to the ftatute, which affixes a penalty on not letting cut predial tithes, it muftbe underftood, as relating to thofe only, which are capable of benig fet out. , Predial, and mixt tithes are to be paid according to die value of the articles tithable, 'without (g) deduding for la- bour and expences : but as to the third clafs, perfonal tithes arifing from the perfonal labour of the parilhioners,the tenth (/^^ of the clear gains only is due. Thefe perfonal tithes are fuppofed to have become lefs con- fide: able than they were formerly. For the)^ are thus defcribed byLiiidwood dy^Jic did^ quia poiiiis refpcdu perfoni^e folvun- tur quam rei titputa de arlificio negotiatio?ie Isf ?niHtia .*" and Watfon {k) fpeaksof them as payable by men. of numerous cccppations and defcriptions, viz. buying, felling, mer- chandizing, fifhing, fowling, hunting, or following any trade. Their finking into difufe, is attributed by Dr. Wood (/) to the claufe in the ftatute 2 & 3 E. 6. c. 13. which does not allow the ordinary to examine a parifliioner on oath as to thefe perfonal tithes. By the fame ftatute § 7. day-labourers are exempted from this payment. It has alfo been determined (772), that an innkeeper is not chargeable with them in refped of the profit made by the fale of wine and beer, nor any perfon for the gain of jii'^ney put out at intereft It vvould, therefore, perhaps be difficult to find any fpecies (except the two articles hereafter mentioned of perfonal tithes, as payable at this day ; the ilatute (n) confining the payment tq fuch perfons, and {g^ G will. 430. (/) laft. 17(5. [h St 2 & 3 E. {m) 2 Bui. 141. (/• Prov 195. [n) \ 7, {k) C, xlix. and li. places, 44 L'2''ju of Tithes. Ch. III. places, by Tv'hom, and in which the fame have b-cn accujlonu ably ufedjOr cught to have beenmade within thefe forty years, that is, next before paiTing the ad ; adverting, as itfeems, to the rule of the eccleliaflicai courts, according {o) to which, that fpace of rime will eftabiifh a cuftcm, or prefcrip- tion. it is if) not fufncient that they have foriiedmes, but muft have been conflantly paid v^^ithin the forty years next before the aft. If it be demanded hov/ fach payment is to be proved ? Dcgge anfwers, by what has been done all the time of TP.txnory fjicc the aft. Here, then, another im- portant difference is made by the llatute betu^een thefe perfonal tithes and the two other clafics, the former {q) not being like predial, or mixt tithes due of common right, but where they have not ufually been paid, not being of right demandable. The two diftinft articles above alluded to, as (r) per- haps the only fpecies of perfonal tithes now payable, and which have been judicially referred to this clafs, are thofe of mills, and fifli. T . Mills more antient than the ninth year of Edward the Second are (j) by a ilatute then paifed, called articuH cleri, c. 5. impliedly dilcharged of tithes. If fuch mill be rebuilt upon the old foundation, the exemption fhall hold good, and revive. But (/j if the materials of an old mill are employed in erefting a nev/ one on a different fcite, though Oil the fame flream ; or if fuch new mill is built on land exempt from, tithe, as having belonged to a religious (0) I Wms. 663. Adman ; but the St. art. fup chartas, (p) Deo-o-e, p. ii. c. 23. is put by mift?ke for art. cleri. {q) 3 Bui. ::i2. i Rol. 405. (0 Gwill. 871. Thomaav. Price, Burn 73. ^^'^^ ^^on. But fee Gwill. ^55 (r) More V. RuITell, that a fite dift charged by a modus exempts a mill (j) Gwill. I'^o.n.^Szr.Aafcllvo ereded thereon, houfe, Ch. m. Divifm of Tithes, Esfr. 45 houfe, perfonal tithes arc due, that is, the miller mult ac- count for and pay to the Incumbent where the mill (lands, the tenth part of the profits arifmg from corn, grain, and malt ground over and above all incidental charges ; among which rent (u) is a principal dedudion where the mill is occupied by a lefiee ; where by ihe owner, the annual value is to be computed and deducted, and the fame is to be done where the proprietor has rebuilt or newly erecled a mill, and occupies it himfelf, as it would be hard on the prefent incumbent if the v. hole cxpences of building were to be dedu tied out of the fiiil profits. The mode (.v) of accounting for the profits of mills as for perfonal tithes, that is, deducting expences, had been previouily fettled, (though afterv/ards iy) called in queflion) in a cafe in the Houfe of Lords (z), and is now finally eftablifhed. By the fame cafe in the Houfe of Lords, as well as by what has been before obfervcd, it appears, that mills newly built pay tithe from the time of their eredion ; though (^) this was con- trary to the opinion of the two chief juftices, who held no tithe at all was due for fuch new mills, the fame beinp- a perfonal tithe, and of courfe wanting the fupport of cuf- tom. But the flatute of Edward the Sixth, fpeaking of perfonal tithes (/>) generally^ may well be controlled by the former law of Edward the Second, which requires the pay- ment of tithes from newly ereded vmihfpeciatim, and it (s reafonable, that the non-payment, which is to confer the privilege of exemption, fliould be conflru6tively limited to things previouily in exiilence. It is, therefore, fettled by the cafes {c^ referred to, that new mills pay tithe. How- Ui) 3 Anflr. 913. Gvvill. idfo, Carleton v. Brightwell. ll'AX V. Machct. ' {a) Gvvill. 598. (;«) Vin. Abr. t Defmes, M. ',. (/') In totojure genevi per fpe- pl. 5. I Er. P. C, 157. Gwill. 596, ciein derogatur, &c. Elem. Jurifpr. Chamberkine V. Nevvte. 4to. 1783.36. (jy) G vvill.623. Dodfon V Oliver. {c) Gv/iil. 87 r. 1460. ^^$. (%) 2 V7nis. 4C3. Gwin. 675.' ever, 4^ Law of Tithes. Ch. IIL ever, where the date of a mill's eredlon is unknown, and no (^) proof is adduced of tithes ever having been paid, the court from fuch non-payment will prefume it to be more antient than the ftatute oi articidi ckri, and fo not tithable. Another point feems long to have remained unfettled,- namely, to the incumbent of what pariili tiihes of mills fliould be paid, whether where they arefituate, or where the occupiers refide. A writer (^), whofe fame is perhaps inferior to his merit, determines it to be, where the miller dwells and hears divine fervice, and (f) this doflrine has one judicial declaration in its favour. But the current of authorities is otherwife, tithes of mills being confidered as predial in refpeft of locality, though properly perfonal as to the manner of accounting, and tht quantum of payment ; and {g it h firmly edablifhed, that they belong to the incum- bent of the parifh where the mill is fituated, and the bufi- nefs carried on, which agrees with the old law of France, " decima (Jo) folvantur iili eccleJi(Z uhi iiiolendinum fitum eJiJ" Yet tithes (i) of miiis like other perfonal tithes, are to be accounted and paid for annually at or before the feafl of Ealter. The preceding obfervations relate only to water-mills, or wind-mills for grinding corn, and grain. If (^)fuchamill pri- vileged from its real or fuppofed antiquity is converted into one of a different defcription, and afterwards reconverted to its priftine ufe, it fhall not lofeits exemption, or become tithable as a new mill. But (/) where a modus, or cuf- {(1) Gvviil. 644. Ki:ghes v. Eel- thoiigli tills matter was not mcv«l. linghufl. Kb) RebnfFus cited, Gvviil. 35(5, ie) Wood Tnft. 163. 170. (i) Stat, 2 & 3 E. 6. c. 13. § 7. (/) Gwill. 983. Wilfon V. Mafon. G will-. 985 . f,;^) Gwill. 871. 1256. 1460. (/J; Gwill. 974. Wilfon V. Mafcn, Hill V. Machet, from 5 Anflr. 915. d) 3 Atk. 17. Gwill. 782. Gilbert v. Gurney Scacc, ace. Talbot v. M^y. tomary Ch. in. Div'ifion of Tithes, ^c. 4y tomary payment In lieu of tithes was pleaded to exempt a mill formerly ufed in pai-t for gnndlng corn, and iti part as a fulling-mill, but feveral years before the fuit the fulling wheels were removed, and mill ftones put in t]\eir room, the plea was over-ruled by reafon of fuch innova- tion, by which It became as It were a double corn mill, a new as well as an old one. In that cafe It not only appears, that a new mill built on the fame ftream, Is a privileged one, or a fulling-myi converted Into a corn-mill fhall pay tithe, but that even if new vrheels and ftoncs are added to a mill covered by a modus, by which the work of two mills may be performed, ii is as two mills, and cannot be pro- teded by the former modus. In the other cafe {m) ju(t referred tOj it was argued, that no mills are tithable but fuch as grind meal for food of men, or animals, nor then if only for home («) confumptlon, not for falc j and it was fuggefted, that thofe mills only could be intended tkhabl-e, which were confl:ru£led for purpofes in ufe at the time of paffing the flatute oi articidi cleri. Thefe general doctrines, however, were not In that cafe fettled, nor were they in- volved in the judgment pronounced. But (o) it has been holden, that a copper-mill, fulling-mill, (unlefs ip) per- haps by fpecial cuilom) fhaving-mill, glafs-houfe, tin or lead mill, paper mill, or the like, pay no tithe, the profits in fuch Inftances arifing from the labour and Induftry of man. The generality of this reafon would not only pre- clude the profits of any manufadure from being tithable, but would aifo exempt fifh, the tithes of which I am about to mention. We mufl, therefore, I fuppofe, underftand, {m) Gwlll 974. ridge. Rolle and Croke both Hate (w) No tithe is due where a mill that a prohibition was granted, and is ufed only for grinding oats foi tl:e fo is R. A. 641. but in the fame cwnsiahounds, Gwill. lofii. Kicks paragraph of the iaft book there 13 T. Trisfe, a later cafe with the fame names, (<3) Lit. 314. 2 Rol. 84. 7. Cro. cont/a. 523. GwUl. 354. Johnfon v. Daud- (^} 3 Atk. 19. that 4$ Lazv of Tithes. Ch. lH. that the machines above enumerated TiVQ prima facie exempt from paying tithes, but may be ff.bjecied to them by {^aew" ing a cuftom for that purpofe. Indeed, Eafter offerings have been faid (cf) by a learned judge, to be a comptnfation for perfonal tithes, certainly, a very inadequate one, for (r), though due of common right, it is at the rate of two-pence only for each parifhioner, except where it is cuftomary to pay more. 2. The other fpecies of perfonal tithes, to which I have juft alluded, is that oifjk. But h^ taken is) either in the fea, or or in a common river, are not tithable,on the principle of theii* being fcra natune, unlefs by fpecial cuilom. Where the claim is fupported by cuflom, they are gen-rally to be tithed in the fam.e manner as other perfonal tithes, that is, a tenth of the profits is to be paid after coils deducted* And as tithe is only due by cuflom, fo lefs (/) than a tenth by cullom n:ay be due. On the other hand, where the cuitom is exprefs for paying tithes of fiih in kind, it feem.s expences are not to be dedudted, and fo an incum-^ bent or lay impropriator may be entitled to receive a much larger proportion than a tenth of the clear profits in refpeft to this, though a perfonal tithe {li). Both thefe decifions are alike fanclioned by the before mentioned ftatute 2 & 3 E. 6. c. 13. § 1 1. by which parifljes (landing upon {q Bun. 174. Gwill. ^6s. (a) Noy. ic8, 1 Lev. 179. Shep- {r) Bun. 173. 108. Gwill. 661. pard v. Peiirofe, cited. Gwill. ibid. 66a. 889. 3 Burn Eccl. L 20. Car- See to the fame effeft Gwill. 62 r. thevv V. Edwards. Ear! Scarborough v. Hunter, which (•f) -Degg®? P- "• c- 8. I R.. A. 630. cafe is differenily reported. Bun. 4^. Nov. 108. Holland v. Heale, cited and the ceneludingpropofition there- ia Willi»ms v. Baron. in that one tithe may be paid by cuf' (/) The canonids allow this dif- torn, and one of common right .of t:n6tion between perfonal, and real fifhi, feems contrary to all the au- or predial tithes, as to which latter, thorities. fuch a cuflom cannot be maintained. A^-'l. Par. i, can. jcS. and CIi. III. Dlvijion of Tithes^ '(Sfc, 49 and towards the Tea coafts, the commodities whereof con- fifl chiefly in fifhing, ^md which have ufed to fatisfy their tithe by fiih, Ihall pay their tithes according to the laudable cuftoms ufed of antient time within the forty years then laft C.v). As to the queftion to what particular church tithes of filh fliall belong, it is affirmed by Degge (;'), to be the cuftbm of South Wales, (and there feems nothing unrea- fonable that it lliould prevail elfewhere), " that if the " parilliioner of one parifh land his fifh in another, the " tithes are divided between the parfon of the parlfn where " the fiflier lives, and the other where he landed his fifh ; " but if the parifhioner land his fifh in the parifh where " he himfelf dwells, then the redor of that parifh has the " wholeti thes." Complicated, and circumflantial claims and queftions may arife on the fubje<9: between incumbents, and impropriators of neighbouring parifhes, but unlefs the cuf- tom be explicitly clear, the {%) prefumption appears to be in favour of the parifh where the fifherman dwells. Not only fifli caught in the fea, or a common river, but thofe {a) kept in ponds alfo (\vhere they may be con« fidered in conffant actual pofTeflion, and confequently the principle derived from their wild nature may be thought of lefs weight), when caught, and fold, have been deter- mined not to be tithable without fpecial cuftom. It was in fuch cafe infifled, that they were wild in their nature ; and as an additional reafon, that they are quafi in the realty, and go to the heir ; wliich is equally applicable pigeons in a dovecote; yet (^), young p'geons if fold, are {x^ 3 Br. P. C. 479. Gvvill. 691. {a\ Gwiil.6i6. a. 15S1. Nicholas Gwavas v, Kelynack. V, Elliott. See Degge, p. ii. c. S. (y: P. ii. c. i^. . (^} i K.. A. Cit^^, Degge, p. ii. (») Gwili. 931, Williams v. c S. Baron, E tithable 5© Law of Tithes. Ch.III tithable of right without a cuftoiii : If {c) ul'ed In home con- fumption they pay no tithe, except (c/) , perhaps, by fpecial cuftom. It is to be obferved lallly, conce]'ning this tithe of fifh, that {c) where they are kept in a pond for the owner's pleafure and home confumption, not fold, or made profit of, no tithe is due, in which cafe it feems the allegation even of a cuftom to render them tithable, would not be allowed although it hath been already, and will continue to be feen how materially cuftom may affefl: the right to tithes, and augment, or diminifti this ecclefiaftical revenue. II. A fecond (/) dlvifion of tithes is into great ?JidLfmaU. Corn and hay univerfally, (though vicars may be fpecially entitled to limited portions, and defcriptions of thefe articles), and wood except, fo far as local ufages prevail to the con- trary, are accounted great tithes. All other predial tithes, exclufively of thofe above fpecified, and comprehending [g) feeds even of articles which, ripened to maturity, would be great tithes, as well as mixt, and perfonal tithes in general are ranked in the clafs of fmall tithes. It has [b) formerly been thought by fome judges, that the diftindion of tithes into great, and fmall might properly enough depend on the quantity. As if a large proportion of a pari fh were fown with flax, potatoes, or other product, being of the nature of fmall tithes, that they would by thefe m.eans be con« verted into great tithes, and would belong to the re-flor. But (/) this opinion, has been decifively over-ruled, and it is now clearly underftood, that the law denominates, and (f) Lit. 40. Gvvill, 428. Anon. Clarke v. Stapler, 938. Cartwright Hetl. 27 S. C. Hetl. 147. Flower v. Bailey 1173. Jeremy v. Strange- V, Vaughan. ways. (^) iR. A. 642. {b) 2Vin. lea. 91. (O Boh. 151. ed. 1760. (2) 2 Atk. 364. Gwlll. 777. (/) Degge, p. ii. c. i. Smith v, Wyatt, 5 Br. P. C. 586. ig) Com. R. 633. Gwill. 749. Gwill 874. Sins V. Bennett. Waiiis V. Pain. Gwill. 8S9, 926. adjudges Ch. III. Divifion of Tithes^ £ffc. 51 adjudges tithes to be great, or fmall according to the Intrin- fic nature of the thing, not from the quantity, the mode of cultivation, or the ufe to which they are applied. Such {k) predial tithes as are of the nature of fmall tithes, muftbe fet out purfuant to the ftatute of Edward the Sixth ; as was refolved in the cafe of apples, and as appears the prevail- ing opinion in that of vi^ood, but not pofitively fo adjudged. III. Tithes are fometlmes divided into, and treated of as rectorial and vicarial. But this Is a lefs proper diftinction than the two former, not being like them founded on the nature of the tithable matters themfelves, but varying ac- cording to particular endowments and local ufages, that be- ing in moft places a redorlal, which In fome comparatively few others is a vicarial tithe, I proceed therefore to the fecond propofed head of this Chapter, namely, the legal que{lions,and controverfies, which may arife between re£lors, and vicars; afubjedt clofely con- netted with the divifion of tithes into great, and fmalL In a learned work (/) fome remarks are made concerning the origin, and endowments of vicarages ; a more exa6l ac- count of which as to fome points, may be collected from a cafe {m reported at large by one of our earlieft and beft compilers, whence It appears, that appropriations were originally made to none but but fplritual corporations fole, as a dean or abbot, who (^z), thereupon, were formerly re- puted to have the cure of fouls as common Incumbents have, and as the latter are parfons for life, the former and his fucceflbrs became parfons for ever. Afterwards, and {h) GwlU. 430. I. Norton v. vicars in the fame church at this Clarke, day, fee Gibf Cod. t. xxx, c. 13. (/) I Vin. le£l. 315. I Burn. eccl. 1. 70. 4 Burn. 10. {m) Grendonv.Bifliop of Lincoln, 3 Com. d. 15?. ft. 43. G. 3. c. 84. pi. 493. Gwill. 136. § 13. {n) As te fpiritual reftors and E 2 very ^2 Law of Tithes. Ch. III. very frequently, appropriations ^verc made to fplritual cor- porations aggi'egate ; who could not collectively in the parifli-church fay divine fervice, nor niinifler the facra- ments, and then it became necellai y for thofc purpofes, to fubftitutc a vicar competently {o) endowed. From this fource, and the fubfcqucnt diifolution of the religious houfes, the antient poffedors, arofe the great number of impro- priate redories at prefent in lay hr.nds. The parties, whofe confent was fuppofed requifite to forming appropriatons, were the patron, the bilhop, and the king as king, (I mean independently of his now acknowledged ecclefiaftical fupre- macy), and as king contingently entitled to cfcheats, and to prefentatlons by lapfe, which contingent rights were an- nulled by appropriations. But fometimes the pope, claim- ing to be fupreme ordinary, fuperfeded the neceffity of the bifliop's concurrence ; and fuch authority as the Roman PontitTufed to exercife, is now by divers llatutes transferred to the king {p) ; who may therefore create de novo^ and veft appropriations in {j}) in fpiritualc orporations, having fuccef- fion by confent of the patron, or w^here he is himfelf patron without the agency of the bifiiop : but it is a prerogative not very likely to be called into exertion. When (r) a vicarage hath long continued, an endowment, although no inftrument thereof be fliewn, fliail be pre- fumed ; and the validity of the appropriation fliall not now be defeated from that imputed defeft. The mod common mode of endowment of vicarages on appropriation, has been by alloting the fmall tithes to that ufe, leaving the great tithes for the rector. Sometimes a io) I Vin. left. 315-6. Gwill. ibid, where there is a profu- (p) Adam v. Tothill, Gwill. fion of learning on the fubjeft. 43^-467- ir) 11 Co. 4. Gwill. 1^58. Gry- (7) Qj- ^f to ^^y ^'orporations, mes v. Smith. 7 vicar Ch. in. Divlfion of Tithes, b'c. 53 vicar haS;, by a more fpeclal endowment, a defcrlbed portion of the great tithes alfo, or of the glebe ; and {s) fomctinies he is in part, or wholly provided for by a determinate an- nual funi of money. Of the diflblution of vicarages, the work (/) above re- ferred to, has ihortly treated, and here it is neceifary merely to obferve, that a [ii) vicarage once endowed, is not reunited to the redory by non-prefentation of a vicar for a long feries of years ; but the new vicar prefented by lapfe, becomes entitled to the tithes included in the en- dowment. No {w) tithes belong de jure by original right to the vicar, but .only derivatively under an endowment, or by virtue of a prefcription, v/hich fuppofes an endowment, by one of which tithes mufr, be eftabhfhed in proof. It is (a-) laid down that the original endowment cannot be prefcribed againft by the parfon. And there is a iy) cafe tranfmltted to us by feveral reporters, where the vicar being entitled to fmall tithes generally, a cuftomary payment to the {z) im- propriator in lieu of the tithe of hops, being a fpecies of fmall tithes, was not allov/ed to operate in defeafance of the vicarial claim. Bur this feems contradided by {a) (s) See Gwill. 1090. in Lloyd v. Cw^ Pal. 426. Str. 87. Yel. 86, Mortimer. Gwill. 326. Grene v. Auften. (/) I Vin.lea. 320. &c. :, Gibf. cod. 720. cites Fringe («) I Cro. 873. Gwill 221. V. Child, 2 L.I. F.obinfon v. Bedel. Where it is faid, (y Gwill. 522. Rifden v. Crouch, the not prefenting is the default of (2;) 2 Kel. 612. the purfon himfelf. It is true, that (a) l Mod. 216. Arg. in Bennet the impropriator is the regular and ▼• Read. Gwill. 1276. ibid. 1335. original patron, i Vin. led. 317, Ellis v. Saul, from i Anftr. 333. but the impropriation and advowfon And vice verfa payrsieiit of the mo- may fubfequcntly get into di[lin£l dus to the vicar is a good exemption har.ds by a feparate conveyance of agalnft theimpropriator. Bunb. 180, one or both of them. Gwill. 1128. Gwill. 653. Woodnooth v. Lord Pevie V. L. Brownlow. Cobham. E 3 Other 54 ■L^"^ of Tithes, Ch. IIL other, and more recent iJinhorities ; according to which, a modus or cuftomary payment to the redor is a good bar to the vicar. For all tithes, great and fmall, belonged ori- ginally to the reftor, who, though {b) not a neceflary party to appiopriations made when the church is full to take place upon avoidance, has yet been confidered argumen- tatively and in the abftrad, as the endower of the vicarage, that being derived out of the entire redory; and the vicarage, therefore, has been fuppofed more recent than the cuf- tomary payment, which is always taken to be of immer morial antiquity ; confequently, as to the fmall tithes in particular covered by the modus, the reftor at the time of the endowment had not them infpecle to bellow : be- fides, that the parifhioners have an interefl and claim to eflablifli the cuftom of the modus. On the other hand, where {c) a lay impropriator claimed tithe of hay under a grant, which exprefsly mentioned it in the third year of James the Firft, but feveral inftances were lliewn of mo- dufes or cuftomary payments made to the vicar by parifh- ioners, who had no tithable ground but meadow, this tithe v/as prefumed to belong to the vicar, and to be covered by fuch immemorial payments not having been received by any impropriator for one hundred and twenty years, which had elapfed fmce the grant. And farther in favour of vicars (^), prefcription may either fupply the lofs, and fhand in the place of the origi- nal endowment where none appears ; or where fuch inftru- ment Is produced, may operate in addition to what is therein expreifed. Thus, in {e) cafe no endowment is forth- com'ng, but the vicar hath been ufed to receive fuch fmall (J>\ Gwill. 146. (f) Gwill. 1232. Jackfon V. Wal- (f' Bunb, 262. Gwill. 675. Stone ker, ih'id. 1248. Payne v. Powlett, V. Rideant. ;'^/V. 471^2. {d) Gibf. cod. 720. tithes Ch. m. ^ Divlfion of Tithes^ Eifr. $$ tithes as have In fa£l arifen, It fliall be prefumed, that he was endowed of all fmall tithes arifing and to arife ; and this prefumptlon will entitle him to the tithe of new tithable matters of modern introduction, as virtually comprifed within the endowment. On the other hand, where (/) an inflrument of endowment is produced, and where the vicar has ufed from time immemorial, or for a long fpace to take particular tithes,- he Ihall not be concluded by their not being exprefled in fuch inflrument ; but it fhall be in- tended, that the tithes fo conftantly received, were added to the vicarage by fome {g) anticnt and lawful ,or voluntary {b) augmentation, "Where endowment is expreifed In words of ambiguous fignification, uiage muil fix the conflrudion. Thus, the word " garba'' (which (/) has been varioufly underflood, but properly means grain, or fruits of the earth bound up in flieaves), has (^0 been determined to comprehend the tithe of hay or otherwii'e, and in favour of, or againft the vicar according as the cuflom has differently prevailed. So (/) alfo the words " altaragiwn, et minuta dcc'mia^'* (the former of which is very frequent in endowments) may, by reafon of, and in conformity to antient and eflablifhed ufage, give a right to tithe v/ood to the vicar, though this , dejiire is a fpecics of great tithes. Endowment, {m) or pre- \ fcription which prefuppofes one, are as we have before i^Qn necefiary to entitle the vicar to any fpecies of tithes. But \i hath been judicially {n) declared, that when the vicar (/) Hiird. 328. GwUl. 514. (/•) I Cro. 633. Gvvill 207. Earf- Tvvifs V. Brazenoie, Coll. dale v. Smith. Gvvill. 1244, Og- ig) See I. Vin. left. 318. lander v. Lord Pomfret. (A) Perhaps not unfrequcntly ; (l) Degge, p. ii. c. i. 2 BuL 27. the fame vicarage repeatedly lb aug- Gwill. 1573, Reynolds v. Greene, mented. in Devie V. Lord Brownlow. (y«) Gwill. 1538. Awdry v. Gwill. 1 1 28. Smallcombe. (J, Gwil'. 882^ 3,4, 8. 1157. («) Ibid. r E 4 " produces 5$ Lazu of Tubes, Ch.Iil. produces an endowment, then the fituation of the parties is reverfed, the prima facie title to the extent of the en- dowment is in favour of the vicar, and if the recior would claim any of the articles comprehended within the terms of it, the onus probaiidi is thrown upon him. in fuch cafe it is incumbent on the redlor to give fuch elear and cogent evidence of a ufage in the panfh in his favour, with refpect to the articles he would infiit upon, as fliall narrow the terms of the endovvment, and induce a prefumption that the parties interefted in the tithes had come to fame new agreement : that fome different ar- rangement had been made with refpeft to the difiribu- tion of the tithes between the date of the inftrument (o), and the difabling fiatute of Queen Elizabeth. An in- fiance of fuch attempt being made on tlie part of a reftor occurred, where (/) competent proof having been exhibits cd of an endowment of the fmall tithes generally, accom.- panied by fome flight and imperfeft teftimony of actual payment of them ; on the other fide there was produced written evidence of the vicar's being entitled only to a houfe, a clofe, and a fmall annual penfion, which precife fum, indeed, it did not appear he had ever fubmitted to receive ; the court referred it to the decifion of a jurVj whether the vicar was intitled to all fmall tithes. This cafe, and [q) another a few years preceding it, appear to confirm the pofition that an endowment is not conclufive evidence of a vicar's rights, but that a variation may law- fully be made in it by new agreements confirmed by ufage. In (r) another cafe, an iffue having been direfted to afcertain whether a fpecified parcel of lands ufually paid tithes to the vicar of A. or to the redor of B. (who was (o) 2 Bl.— Comm, 320, I. dayne. {p) Gwilli258. Carrv. Hea- (.r) Bunb. 87. Gwlll. 627. Fos tons. ' V. Rutty. (n'S Gwlll. 1 168. Fynes v. Or- '^' not Ch. III. Divlfion of Tithes, l^c, 57 not a party to the fult), the jury found it had paid tithe to neither, but hiy within the parifh of A. ; the court refolved, that the vicar being endowed of all fmall tithes within the parifh, though {s) they have never been paid, has the fame right to all within his endowment without ufage, unlefs ufage to the contrary be fliev/n, as the reclor has of common right, and decreed for the vicar accordingly. Indeed, the court has peremptorily decided upon the conflrudion of an endowment without any intervention of a jury, namely, (/) where a vicarage was endowed with the third part of the tithes of a manor, it was refolved, that the vicar Ihould have tithes as well of the freeholds, as of the demefnes, and copyholds. But (as may frequently be the cafe) where {u) intricate queflions arife between an impropriator, and vicar concerning the effed; of endowments, and grants of augmentation, or concerning boundaries, and local fitua- tion, matters involved in the mills of antiquity, and ob* fcured by the changes of time effeOuated by drainages, inclofures, or the like, the court has ufually remitted the folution of thefe difficulties in the diape of properly framed ilTues to the inveftigarion of a jury, on fome occafions aided by a formal view of the premifes ; without which approved mode of examination in controverfies of this nature, the vicar's right, at leafl: unlefs very clear and fatisfaclory, ought not to be a£led upon by a court oi equity. It has been {w) determined, that if a vicar is endowed generally of part of the glebe of the parfonage, he Ihall not pay tithes to the parfon, quia deci?nas ecclefia ecckfia redder e Tion debet. The (.v) great tithes of fuch glebe belong to the (j) Gwill. 1 168. Fynes v. Or- Brownlow. dayno. (iu] Gwill. 470. Walrick v. (/) 0^.58. iCro. 462. Gwill. Cropton. Ibid. ^2)1- Sanders v. 2568. Higham v. Bed. Ryall, Cw) Gwill. 1128. Pevie v. Lord {x) Ibid. vicar. 58 ' Law of Tiilm. Ch. III. vicar, although not entitled to any other great tithes with- in the pariQi, and to the vicar for the time being ; info- much, that if a vicar fo circumflanced demifes his portion of glebe, which is fown with corn, and then dies, the next vicar fhail have the tithe of the com, and not the impropriator ; on the other hand, if the iy) endowment is fpecial,namely,that the vicar fliall have fo much of theglebe, paying tithes thereof to the parfon, fuch flipulatlon mufl prevail ; and conilant payment of tithes to the parfon by the vicar will be evidence to a jury, that this was in faft the condition of the endowment, in cafe the original inflrument thereof is not to be found. Under (z) an endowment of fmall tithes generally, a vicar is not entitled to the fmali tithes of the parfon's glebe, but if the endowment includes the fmall tithes of fuch glebe by exprefs nomination, the parfon himfelf fliall pay them to the vicar. There are in fome parts what are called (a) parochial chapelries or perpetual curacies^ of a nature diftind from mere chapels of eafe, attributed in general to a prefumed union of pariflies, whence one has fubfequently been con- fidered as the confolidated parilh church, and the prefenta- tion to it has been cum capelld annexd. Thefe words may, indeed, confer on fuch prefentee when in full poffef- fion, the power of nomination to the curacy, but they ahb import the foundation of a chapel having fubllantive rights of its own. And the fame may be farther evidenced by the accuftomed folemnization of baptifm, and fepulture within the precinds ; or by eftablifhing in proof a prefcription ex- empting the dwellers within the chapelry from contributing to the repairs of the fyppofed mother-church. Such per- (j) Gwill. 470. Walrick v. Crop- Blincoe v. Barkfdale. ^05, {a) 2 Vez. 42J, Attorney Qe- (a) 1 Cro. 578. Gwill. 197. neral v. Eereton. * « jetuai Ch. III. Divifton of Tithes y &c, 59 petual curate, except in being nominated inftead of prefent- ed, inftituted, and inducted to his chapelry, differs but little from a common vicar, and is (b) capable of holding tithes ; but capable only, and mull like a vicar prove his claim. For here, the rule may be th jught to have peculiar force, that without due proof to the contrary, the redor is entitled to all the tithes great, and fmall within the parifh. Sometimes the controverfy between a reOier and vicar is confined to the fimple queflion, whether the tithes in dif- pute are great, or fmall. I have already given a general defcriptlon of fmall tithes, and have obferved, that feeds, while remaining in that ftate, are fo clafTed, though the produce from them when come to maturity, may form a fpecies of great tithes ; thus clover feed is of the former, and clover hay of the latter denomination. The following productions ^;fome of them after much controverfy) have been judicially ranked among fmall tithes, and when a vicar is endowed with fmall tithes generally, by fuch endowment belong to him. i. All {c) manner of garden herbs, roots, and fruit ; 2. The valuable article of hops (j Mo. 909. ( 62 ) CHAPTER THE FOURTH. Things tithahk of common right, and the manner of iitbh:g ■ them refpeclively^ TT muft (a) not be inferred from the terms of the defi- nition in the beginning of the Second Chapter, that " tithes are the tenth part of the encreafe yearly arifmg *« from the profits of lands, &€,'* that this neceffity of annual renewal is ftriftly and univerfally true of all fpecies even of predial tithes. To mixt, and perfonal tithes, that part of the defcrlption does not at all apply. Indeed, if land hath once borne this annual burden, the principle is, that it ought not to be again charged in the courfe of the fame year. But lands fown with clover (b), which hath a more frequent encreafe than once a year, ought, it feems, to pay tithe as often as the produft is renewed. So tithe has been decreed to be paid for a fecond crop of turnips (c), though it was infilled they were fown for meliorating the foil againfl the next year's crop. On the other hand, it (d) was very early confidered as no objedion againft the tithable capacity offylva ccsdua, or wood ufed to be cut, or lopped, ■ that it was not renewed annually. In like manner, faffron (f ) is tithable, though generally gathered but once in three years. (a) 2 Vin. ledl. 97. • renewal like the cafe o^ faffron^ {I) 3 Burn. eccl. 1. .^77. Gwill. Gwill. 838. in Walton t. Tryon„ 584. Witherington v. Harris. but as to the entiy, 7 R. 2. fee its (f) Gwill. 606. Hall V. Fitz. authenticity queftioned, ibid 83 1. 2, (i) Gwill 9. A. D. 18 14. 7 R.2, (c) Wood. inft. 1. Engl. 172. ed. Bccaufe it is an ordinary Jlattd 1763. Of Ch. IV. TJj'ings t'lthalk of Common Right, ^c. 63 Of(jr) common right tithes of aftermatb, or an after- crop of grafs mown from land before mown in the fame year, where there is no prefcription or cuflom againfl, or in difcharge of the claim, ought to be fet forth and paid. For otherwife there would be left open a dangerous oppor- tunity of defrauding the reaor. But the ig) occupier of land is not bound to make into hay the tithe of the grafs, which he cuts. And, therefore, a (/j) prefcription that the occupiers of meadow ground within the parilli, have ufed to make the firfl vefture into hay, and pay the tenth cock in fatisfadion of the tithe of fuch firfl vefture, and alfo of the aftermath has been adjudged a good and legal prefcription, and difcharge of the tithe of the aftermath. So a man (/) prefcribed where the grafs grew in wet places, that in con> fideration of his carrying it out of fuch watery ground and £0 another drier fpot, to make it into hay, he was to be dif- charged from the tithes of the aftermath, and this prefcrip- tion w^as alfo allowed to prevail. In another (k) cafe, where in order to flay a fuit in the fpiritual court for the of the latter- math of clover-grafs, a cuftom was fuggefted, that every perfon having any meadow, or farm within the parifh in which any has been gotten or arifen, hath been ufed and accuftomed to make the firft math or toKfure of the grafs into cocks of equal quantities at his own coils and charges, and to fet out the tenth cock for tithes for the vicar in full falisfadion ofall and fmgular the tithes, as well of the former as of the latter mowing, and that the vicars of that parifli have always from time immemorial accepted (/) 1 R. A. 640. Gwill. _53X. 473. Johnfon V. Awbrey, Boh. 55, Margetts v. Butcher, fee 8 Vin. abr. $6. ed. 1760. 1 R. A. 64.8. 574. Wood inft. 165. 3 Burn eccl. (i) Gwill, 477. in Andrews v. 1-4 '5' Lane. (^) 1 R. A. ^64. a Wms. 522. 3. (/) Lut. 1071, Gwill. 571. Dar- in Fox V. Ayde. rant v. Booty. ih) My. *jio. I Cro. C<5o. Gwill, and 64 Law of Tithes, Ch. IV. and taken the fald tenth cock accordingly ; it feems to have been thought a good cuftom as laid, and no difference was made between the latter-math of clover-grafs, and ordinary grafs^: But excepiio probat regulam^ and the inftances alleged are variations from the general dodrine, that with- out fome fpecial cuflom or prefcription to the contrary, not (/) unreafonable in itielf, aftermath is tithable. ' On the other hand, for after-paflure no tithe is due, that is the occupier of grounds which have paid the tithe of hay is difcharged of common r-ght from the tithe of agiflment of the fame land in the fame year, becaufe here the prin- dple prevails, that one and the fame land fhall anfvver but one tithe for one year. On this point the (;;?; authorities sre very numerous, in fome of which the rule is laid down as well as to ftubble-land which had paid tithes of corn, and was afterwards in the fame year depafiured by cattle, as fields from which hay had been mown. For this courfe or pracl ce of after paflure is net fo open to fraud as that of aftermath. Neither does it impoverifh the land agifted after its being cropped, and tithed. There is, there- fore, a manifefl difference between the cafes. If («) how- ever there really was any fraud in the m.atter, and from a fmiiler view more grafs was left by the feythe in the mow- ing than is ufual, then it is reafonable that tithes fhould be f)aid for fuch after eatage, or agiflment. ■ Farther, tithe () Hard. 3S0. Gwill. 515. Grant ing the ftatute of S'yha C^dua, V. Hedding. which ufage an ilTue was diredicd iq) Gwill. 537. Tafwell v. AthiU. to try. (r) Which it is there faid are (j) I R. A. 656. Ellis v. Drake, not tithable without a cuftom, but (/) s Rol. R. 78. Caimen's cafe, may be fo by ufage notv/ithftand- F I. Corn 66 LawofTUhcs. Ch.ir, I. Corn and grain. Thefe, and other predial tithes are by ftatute 2 and 3 Ed. VI. c. 13. required to be truly and juflly without fraud or guile divided, fd out, yielded, and paid : and no perfon is allowed to take or carry away the fame before he hath juitly divided or fet forth for the tithe the tenth part thereof, or otherwife agreed for tlie fame tvith the parfon, vicar, or other owner or farmer of the fame tithes, under the pain of forfeiture of treble the value of the tidies fo taken away : and w^henfoever the faid predial tithes fliall be due, and at the tithing time thereof, it fhall fee lawful to every party to whom any of the faid tithes Gu^ht to be paid, or his depaty or fervant, to view arJfce their faid titlxes to be juiUy and truly fet forth, and fevered from the nine parts, and the iame quietly and undillurbedly to take, and carry av, ay. Here it may be firil obfervcd, that acuilom or prefcription of tithing without the parfon's view of the proceeding, or of the nir.e parts from which the tenth is fevered, is void : as Vv^as [ti) determined in refpect to fleeces of wool, a fpecies of un\t tithes ;. it benig infifled to be :igain(t common reafon, that any man iliould judge or divide for himfelf, and then take choice of his own divifion ; for the truth of the tenth depends up^on the proportion it holds with the nine parts, and therefore, for the pariflnoner who is in the nature of an advcrfary to the parfon in this cafe, to fet out a part for the tenth, Vv'hich he only affirms to be juft, is to give him merely power to tithe as he thinks proper, and the prefcription were as reafonable as to fay plainly that he might fet out what tithe he pleafes^ In regard to tithes denominated predial, of which I ani^ now fpeaking, the reafoning as well as the words of tlie ftatute, pleads more ilrongly againfl: the validity of fuch a euftom or prefcription us I have jufl mentioned. But on (a) Hob. L07. Gwill. 279. Wilfon v.bifliop of Carlifle. the Ch. IV. TJjings Tlthahle of Common Right, ^c. 6y the other band, there is (:o) by the general law no ne- celTity for giving notice of the fetting out of tithes as hath been repeatedly adjudged, though alledged to be otherwife by the law ecclefiaflical. In the lafl of thefe adjudged cafes it was argued at the bar, that as to the view the flatute was introductory of a new lav/ ; which tends to lliew, that at the fetting out of other than predial tithes, the parfon has ftill no authority to be prefent ; but I cannot think that the common law excludes him from infpedling a tranfaftion in which he is fo immediately interefled, when he happens to be acquainted with the time of its taking place, and choofes to attend. Indeed we have jufl feen, that even a fpecial cuiiora to fuch effect is void, and though notice of a parifliioner's intended time of fetting out the predial tithes is not neceffary generally, it (x) may be fpe- cially requifite by virtue of a local cuftom for that purpofe, fuch cuflom having been adjudged -good and binding, and (as the chief juftice thought) fo intrinfically proper, tha'f very flight evidence would be fafficient to prove it. Where ■(_v) fuch cuftom prevails, an hour's notice is infufEcient. The reftor has other funaions to attend to, which may detain him at the oppofite extremity of the parifh. The notice fhould be fuch as to give him time to infpe£l the fetting out of the tithes, and to fee that he is not defrauded of his dues. The cuftom relied on muft, however, be pofitively alleged. For (:::) where the leffee of an impropriator brought his bill for tithes of wheat, and other grain, and ftated, that by the cuftom in that parifli, the occupiers ought to give notice to the perfon intitled to the tithes of (w) Noy. 19. Spencer's cafe, (x) Burr. 1891. GwilL 92S. But- 1 R.A.643. Chafev. Ware, 2 Vent, ter v. Heathby. 48. Anon. Com. R. 22. Gwill. (y) 3 Anflr. 640. Gwill. 1438. 1579. Gale V. Ewer. But Sty. 342. Tennant v. Stubbing. cited in iTome of tliefe books does (z) Bunb. 3 33. Gwill, 739. Beaver cot fupport this point. v, Spratley. F 2 fetting 6S La-JL^ of Tithes. Ch.rV. fettiiig forth the fame, or there was fome other cujiom of the like nature^ and that tlie defendant had not given notice^ and prayed an account, two objedions were raifcd : Firfl:, the unreafonablenefs of the cuflom was infilled on, for the perfon inritled might hve a hundred miles out of theparifli ; but to this it was anfwered, that notice to the fervant would be g-ood in that cafe : Secondly, it was objeded, that the cuftom was alleged too uncertainly, to which it was anfwered, that the fuit was not lo eftablilli a cuflom when greater certainty is required, becaufe it is to be the founda- tion of an iffue, which is generally dire6led before a court of equity eftabihhes a cuilom ; but here the cuflom is only brought forward as an inducement, or introdudory title to the demand of an account. But the whole court held this want of certainty to be a fatal objedion to the cuilom as alleged, which being the foundation of the plaintiff's demand, they could not decree an account without firfl eflabiifhing the cuflom, and the bill was difmifled with It has been {a) determined to be no excufe for not fetting out tithes of corn, that the late occupier's intereft in the land was expired at the time of his carrying the corn away. For although his intereft in the land were expired, he remained owner of the corn, and if co,vn be cut down, and a flranger {h) take it away, before feverance of the tenth part from the nine parts, yet an aftion on the flatute will lie againfl him. And {c) if a parfon or impropriator of a reftory fows land in his occupation, and fells the corn (landing, the vendee, if he has not fpecial words of dif- charge, inuil let out and pay tithes of fuch corn to his own r {a) 2 Cro 324. I Brownl. 123. C. J. 2 K.0I. R. 440. in Gwyn v. Gvvill. 258. Kipping v. Swayn. Merry weather. {I) The trefpaffer to be lued, (r) 2 Cro. 361. Gvvill. 276. Brownl. ibid. H^arg. aud pe' Ley Moyle v. Ewer. vendor. •Ch. IV". Tubings Thhable of Common Right, 'i) feems not unreafonable, and the doQrine is adopted by Watfon [y^ and Barn (s). But it may be queflioned, whether 1//^ its authority is not over-ruled/^j or at leafl fhakcn by the ^<:^ following more recent (^) determination. The defendants to a tithe bill infilled on an immemorial cudom to fet up their corn and grain in Jlicks, being twelve fheaves placed in a row fix againfl fix ; cr in Jiitches, being ten fheaves placed in a row five againfl five, and that if there happened upon the whole quantity of corn to be any flick or flicks, flitch or flitches, not amounting to ten, no tithe was paid of fuch under that number : The court declared the cuflom void, and therefore ordered the defendants to pay tithes (u) I Rol. R. 173. V, Ruffle. (w) Latch. 226. Anon, Gwill. (^y) C. xlix. fol. 43*5. 9667. in Erflclne v. Ruffle. (z) 3 Eccl. 1. 408. (.y) Recognlfed, Gwill. 967. 8. (a) Gwill, 565. Trewin v. Bond. Wyodfhaw y. HiU, cited in Erfldne 7 of 74 Lazv of Tithes, Ch.IV. of all wheat, barley, and other corn, particularly for the tenth part of all the odd flicks cr flitches of wheat, barley, or other corn, not amounting to the number of ten. The reafons on which the court proceeded do not appear, and we may obferve fome diflindions between the cafes ; for befides, that in the latter the cuflom is laid with fome un» certainty, it makes a very material difference to the tithe- owner, whether the odd flicks or flitches, or the odd flieaves only, fnall be exempt from being tiched. , But not- withflanding what is flated of the farmer's not being bound to make the wheat into fliocks for the parfon's conve- nience of tithing them, I believe that in fa6l, according to the ufual courfe of hufbandry, the fetting up of the fheaves into fliocks follows immediately after the binding into llieaves, fo as that every fliock in the fame field fliall con^ fill of an equal num.ber of flieaves, and then the (^b) fhocks are tithed, beginning at either end according to the elec- tion of the tithe- owner, who is entitled to have feparated for him the tenth part alfo of the odd fheaves under ten» Here It may not be improper to mention, that it hath been adjudged, that by the general cuflom of the realni for the rakings (c) of corn, no tithes fhall be paid. But this fup- pofes no fraud to have been ufed, and the rakings to have been involuntarily left in the ordinary courfe of hufbandry. If they are of great value, and with an intention of defraud- ing the parfon more is left, or fcattered than might fairly and reafonably happen, they ought to be tithed. {I) There arc cafes to (hew, that GwiU. 473- "• Ni^^hoU's cafe, cited if in the fiiocks, it is tithable that in Johnfon v, Awbrey, i Cro. 475, way, Per. Cur. Gwill. 15 n. Man- Gwill. 1S9. Sherington v. Fleet, tittv. Paine. vrood, 2 hrl. 652. i R. A. 645. '(r) Moi 278. Grent v. Hunt, pi. 1 1 . 12, accounts for it from the cited in Berd v. Adams, i Freem. Levitical law. Degge, p. ii. c. 3. 334. Gwill ;?62. Anon. GwilL 477, In fome of thefe books what are in Ar.urews v. Dr.i;e, i Cro. 660. tithable are called frefli rakings. It Cli. IV. Things Tithahk of Common Right, ilfc 75 It has beenftated by the (J) court of Exchequer as the gene- ral and irrefragable law of tithing, that each article is to be tithed after feverance at that time,and at that ftage of the pro- cefs at which the parfon canbefb fee and judge, whether he has his f.iir tenth. We have before obferved, that barley and oats are no longer garbed, or bound in fheaves except () cafe, in which various matters were introduced, complaint was madt^ that the tithe of peas was fet out not in the cock as it was contended it ought to be, but merely from the hook as it was exprefled,in little parcels almofl in handfulls, and fo intermixed, that it was impoffible for the parfon to hufband it, or to carry it away. The court declared, there was no definite mode of tithing this article to be found in the books. They m.uft, therefore, refort to principle, namely, that the tithe of it mufl be fet out as foon as it comes into proper divifions or parcels, fo as to let the tenth be feen, and judged of, and hufbanded. But thinking they had not fufficient evidence before them to decide how far it was in this cafe fo feparated the ether nine parts, as that it was pradicable for the parfon to take the jufi: tenth, they direded an enquiry to afcertain the fa£t. Having fpoken of thefe principal articles of corn, and grain, before I proceed to other tithable matters, I Ihail here obferve, that it is (/) not fufficient that the tithes have been fet out unlefs the parfon is duly permitted to enter and take them away, otherwife it is a fraudulent fetttng out, remedi- able by a fuit upon the flatute. The land occupier cannot therefore juftify obftrudling the tithe-owner from paffing along the ufual way for this purpofe, though he might have come for the tithes another way. In a {k) fuit for tithes about thirty years ago, tlie fubjedl (among others) was dif- cuifed. Lands in the feveral occupations of two oi ihe de- ' fendants had been before cultivated as one farm,and there was (/;) Gwill. 1504. Mantett v. {k) Gwill. 1109. in Bof-.vortU v. Paine. Limbrick. (;)iBul.io8,GwilJ.i57a.Anon. then 7S Lazv cf Tithes. Ch. IV. then a communication over part of the grounds with a public highway, which communication was obilrucled by the prefent oacupier of the fpot over which it lay. This would have been tlie neareii and mod convenient road for the rector, the plaintiff, to carry off his tithe ; he accordingly prayed as againfl this defendant of the name of Stock, to have the way in queition opened to carry off his tithes arinng upon the lands of another defendant, and he adduced fotue evidence to prove, tliat this line of road was in fiict a public highway. The court expreffed their opinion, tliat this v/as not a cafe in v/hich a court of equity could inierfcre, nnd clearly held, that if the road is a public one, the plaintiff's remedy is at law, either by indictment, or in rcfpecl of fpe- ciid damage by aftion on the cafe. That the parfon muff midoubtedly have a right of way to carry offhis tithes from the place on vrhich they arife, and the occupier muff open a paffage for him, or he fubtracls his tiihcs. Ordinarily the parfon is underffcod to have a right to ufe the fame read 5vhich the occupier ufes. If the occupier has a right, the parfon has the fame. It is accident v^^hether this way is more or lefs .convenient, nearer or farther ; its being the neareff cannot alone give the parfon a right to pafs over another man's land. There having been a connnunication when all the lands were in one occupation, which the parfon mdght then have been entitled to ufe, becaufe the occupier ufed it, is no argument in fupport of a claim to ufe it when the occu- pation becomes feveral. The feveral occupiers may have no right to ufe it, therefore the parfon can derive no fuch right from them. As againft the defendant Siock, therefore^' tliis bill was difmiffed with coffs. The parfon's accommodation is confulted in this refpect alfo, tha' he is not lound by lav/ to fuperfluous trouble in unloading his v/aggon of the tithes colieded from the grounds Ch.IV". Things Tiihahle of Conunon Rights lye. 79 grounds of fome of the parifhioners before he drives it on thofe of others. For (/) where the tithes of wheat being fet out, the plaintiff's fervants came with a waggon and horfes to fetch them away ; but the defendant, fuch waggon being three parts loaded with tithe corn from the lands of other perfons, obflruGed the taking of the tithes fo fet out, unlefs the plaintiff's fervants would firfl unload what they had fo brought ; on their refufal, the tithes were left and periflicd on the ground, the plaintiff having de- clined to fetch them away at any fubfequent time ; this defence was holden infufficient, and the party making it, was decreed to account for the value of the tidies, thus in- effectually fet out, with cofts. II. As to the tithes o^hay and other the like articles ^lix. f. 441. Degge (/) Watf. Ibid, p. ii. C.3. I R A. 644, (7) Gwill. 1561. Knight v. (n) 2 Wms. 522, 3. Foxv. Ayde. Halfey. (&) Hob, 250. Gwill. 422. Hide (r) DeggCj ibid. the 8o Lazu of Tithes. Ch.lV. the crop Into hay-cocks before they have fet forth their tithes they mufl do fo ftill, but where there is no fuch cullom, they may fet them forth in grafs-cocks. In all (x) cafes when the titheof thegrafs Is fet forth, and the occupier is not bound to make it into hay, the tithe- owner may juflify pafling over the grounds of the former in his way to the place, in order to make the tithe-grafs Into hay, and may make it into hay there with as full authority as the occupier of the grounds himfelf, for this is a privi- lege neceflarily incident to the right, and enjoyment of fuch tithes. Where therefore (/) fuch an occupier refufed to let the reclor's agents or fervants make the grafs cocks fet forth for tithes into hay, on the ground, which produced the fame (fheltering himfelf under the pretences of the Inclemency of the feafon for hay-making, and the inconvenience and damage that muft have accrued to him from fuch permif- (lon, both with refpecl to his own hay, and the ground on which it was to be made), the court declared, that the plaintiff was entitled to make his tithe grafs into hay on the defendant's lands where it grew, and ordered the defendant to account for its value. By parity of reafon it had {k) long before been determined, that a parfon fhall be allowed a reafonable time to take his tithes fevered from the other nine parts, and to dry them (verier) before he carries them away ; and (zv) where the defendants in their anfwer to a bill by the proprietors of tithes, infifled that after the grafs was put into cocks, it was the cuflom of the parifli, that the parifhioners were not to make up the grafs round fuch cocks, the court declared It to be a void cuflom, not to rake up their grafs into cocks. In order (i) Watf. ibid. I R. A. 643 . 12 E. IV. 6. {t) Gv\'ill. 776. Crabbv. Hayne. («;) Gwill. ^G6. Staughton v. (y; Bro. t. Dirmes, pi. 12. cites Hide. to Ch. IV. tfjin^s TUhable of Common Right, ^c, 8i to fetting out the full tithes thereof, and that the defendant ought to account for the tithes of fuch hay. But if a (.v) fai-mcr cuts his grafsi, and only put it into f\^•aths not making it into hay, and carries it away, and gives it green to his beads of the plough for their neceifiry fuftenance, not having grafs fufficient to maintain them otherwife, no tithes fliall be paid in refpc(^ of it. In ge- neral, however, tithe is to be paid for fodder given to beads ufed for the plough or pail. As where (;-) the demand was for the tithes of rough hay grown in marfhes, and fenny lands, it was fuggeded on behalf of the paridiioners, that they paid tithe of hay and grain grov.'n upon the meadow and arable lands, and becaufe they had not fuf- ficient grafs within the parifli to fudain their beads in winter, they ufed to gather this hay, called fenny fodder for their fuftenance, and for the better encreafe of hudjandry, and for this caufe had been always freed from, tiie payment of tithes of it. Such furmife was holden infufficient, for as to the allegation that they bedowed the fodder upon their cattle, it w-as not any caufe of difcharge, fince by parity of reafon they might prefcribe for corn fpent in their families, or confumed as provender, which w^ouid be unwarrantable defalcations from the redor's rights. On the other hand, where (3) the furmife was, and it was found by a jury, that the impropriator from time ioi- memorial had been feifed in fee of a certain meadow, and held the fame, and took the profits of it in lieu of all tithes (x) I R, A. 647. Crawley v. ter is ref rred to the head o^ moaus Wats, Watf. c. xlix. f. 439. jjegge^ dedmandi. '* A particular piece of" p. ii. c. 3. " wood land, or meadow lard fe- j) Degge.ibid. 2Cro. 47. Webb " p^rately, and immediately enjoy- V. Warner, Mo. 683 S C *' ^^ "^Y ^"^^ parfon, m?.y be a com* (-) 2 Cro. 501. Cvvill. 157^. " penfation for the tithe of wood, Moore V. Bullock, I R, A. 649. " and hay." Gwil!, ijSi. Knight S, C. In which lafl book this mat- t. HalCey. G of 82 Law of Tithes. Ch.IV. of Liy within the hamlet, though it were objefted, that it fnould be intended as parcel of the glebe, and that it ought to be exprefsly {"iitwR to have been given in recompence of thofe tithes ; yet the court over-ruled the objection, and adjudged that the meadow muft be reputed to have been given in recompence of the tiihes, and that thus, in regard of that land, the difcliarge of thofe tithes com- menced. Clover-grafs [a] for all purpofes of tithing feems not diftlnguifliable from the ordinary fpecies. Such alfo appear to have been the decifions in refpeft to {b) cinquefoil. And this principle feems to be extended to the feed of clover. for it has been (<:) determined, that clover feed is not to pay tithe at the mill, but that the tenth part of the flock is to be fet out in the field, after it is fevered from the ground : But if inflead of being as in one of thofe cafes converted into horfe bread for feeding hogs, or of being carried to the mill, it is fold and made profit of by the owner as feed, being in that flate, as we have before ktn, a fpecies of fmall tithes ; it feems doubtful whether in fuch cafe the tithe ought to be fet out in the field in analogy to the nature of hay. Generally, however, the tithes of lands fown with clover, muft be fet out in conformity to the rule with regard to all hay. And in a [d) caufe in which the court of exchequer had originally decided in favour of fetting out the tithes of clover in the fwath, from an idea that it was conunonly carried from that ftate without getting into the fhape of cocks at all, they afterwards on the evidence before them, thought they had mifconceived that faft, and that clover in almoft every cafe is put into cocks, {a) Bunb. 344. Gwill,530. Pom- {h) Gwill. 535. Anon, fret V. Lander. Accordinglya cuf- {c) Gwill. 1615. Lloydv. Bentley. torn to fet out the tithes of both in () was this ; there being a large uninclofed common, lying between and extending itfelf into the feveral parifhes of A. B. and C. and other towns, the inhabitants of which had for a time immemorial in order to avoid multiplicity of fuits, permitted a fortofpromifcuousintercommoningon fuch open pafture 5 the right was deemed to belong to the refpedlive farms in each town, and taken to be part of thofe farms, and the owner of the cattle fo fed always paid the tithes of them to the parfon of that parifh in which their farms were fituated. The appellant rented one farm in A, and another of B., and paid tithes according to the afore- faid ufage to the refpeftive incumbents of thofe pariihes, for his cattle fed upon the common. He alfo occupied five acres of meadow ground in the parilh of C. for which he fet up a modus or cuftomary payment of two-pence an acre, and after that rate payment had been made or ten., dered to the refpondent, the rector of the lafl-mentioned parifh j yet as fuch reftor he had fued in the exchequer for tithe herbage of this meadow ground, and alfo for the tithe of the feed of the refpondent's cattle on the open common. The court of exchequer decreed, that the defendant there Ihould account for the modus or cuf- tomary payment, and fhould alfo account for the tithes of his cattle fed upon that part of the common which lay in the parifh of C, there being proof that the cattle were driven upon that part. But on the appeal, the houfe of Lords ip) Bro. P. B. 278. Gwiil. 604. Mickleburgh v, Crifp, 9 Vln. Atr. 43.S.C.Abr, reverfcd ) Ibid. Bunb. 174. Harriron v. Sharp, {qi Bunb. 20. Smith v. "Roocliff. 3 Burn«. Ecd. 1. 4^0. (r) Watfon C. L,465. H the 9S Law of Tithes, Ch.17, the cattle of guefls) is to be paid to the p-rfon, and then he adds, that tithes of barren cattle, by uhich he mufl mean the occupier's own cattle, are due of common right, accord- ing to the value of the land aft^rr the rate of two (hillings in the pound, becaufe fuch tithes cannot be otherwife valued, or accounted for, but he admits that by cudom or prefcrip- tion fuch tithes may be paid in another manner, as by the acre; Where no fuch cuflom obtains, it may be difficult ro fagged, and adopt a better, or more convenient mode of vap- iuation than this of two Oiillings in the pound, or a teneh of the rent or value of the land; a rule which appears ir) to have generally prevailed. Bat (j) whether even this cri< terion be perfectly ju ft, may perhaps be queflioned, becaufe the quantum of the rent is not in the conufance of die parfon; and becaufe as to the value cf Lhe land he ought not to be under a necefhty every year of trying that fa£l on any difference betvvxen him and his parifliioners, aegge, Gwill. 834. See alfo Witherington p. 1 1. C.4. 3 Burn. eccl. 1 433. ^ Harris. Gwill 584. ■not Ch. IV- ThirgsTlthablevfCommcn Right, ^V, 103 Rot (r) long fubfcqucnt to that In wh!ch the fibove rc'b'u- tions were pronourrced, the -court again held, that the boughs of timber trees above twenty years growth were not tithable, notwithftanding the decayed (late of the parent tree : but i-hat although of a tree being once of twency yer.rs growth and never having been lopped, and thtn after the twenty years being lopped, every ten or every feven years, tithes v/ere not payable for the lops, yet if a tiinber- fe'ee is lopped before it is of twenty years growth, (/) and afterwards it is lopped every tea or feven years, tithes fhall be paid of fuch lops, becaiif^ it had nevifr acquired the pri- vileg^. Thefe decifions had the ratification of Lord Hard- wicke, C, in his judicial argument on the occafion above alluded to. But we find (/) him contradicting one part of the portions of Sir {u) Edward Coke, which on this, as on other fubjeds have in general had the fanfiiion of fubfe- quent determinations ; namely, that tithes fhall not be paid for the germin-s or tranches which grow out of the nets of felled tirr.ber-trees of what age foever, for that the root is parcel of the inheritance. The contrary rule {v) his Lord- {hip rcprefent: a" having fince prevailec^ becaufe great part of the copfe^., or underwood of the kiogdom are germins from fiich flools of f'mbrr-tress, and the oppofite dodtrine wcmld deprive the clergy of tithes of many underwoods. Then to the quellion, what is the diiFerence, whether the germins grow from the ftoois of trees entirely cut down, cr from, the tops of trees that have been only headed and (r) Ivio. 90S. Broke v, Rogers. (,^) G'.viil.g^s. Gwill. 8p,. t \ r n. /■ (s) Bat what it it ceaies to be ^ ' ^-^ lopped for twenty years fucceiTively? {v) Word j;ro\v'n^ rn ftiihs, or It is laid to become timber, and ftein* is tithable, Gwill. 529, Tur» piivilfcg^d, i2.. A. 6+0. L'egge, j:er v. Smith. p. 21. c. 4. iamenqusre. See Gwiil. H 4 iopped ? 104 Law of Tithes, Ch.lV. lopped? he anfwers, that in the firft cafe there is no tree remaining whence they may derive the privilege ; in the otlier there is. As to the caksin qucllicn, he admits, that if they were topped, and made pollards before they attained the 'age of twenty years, aid have continued to be lopped in the courfe of falls ever fmce, they will be liable to tithes. Therefore, this being a queilion of faft when he came to the decree, he offered the plaintiff an iffue for a jury, to determine, namely, whether thefe trees were lopped before twenty years growth, or not. Ac to the demand for tithe of beech wood, it not being difputed, but that it was above twenty years growth ; he faid,that alfo then depended upon the queftion of fad wheiher beech be timber by the cuftom of the country ; and his lordfhip thought the terms of this ifTiie fliould be whether by cuftom ufed from time whereof the memoiy of man is not to the contrary, beech trees grov^ing wiihin the pariflr of Mickleham, of which the plantiff was rector, are and have ufed to be deemed timber. This might be found according to the truth of the cafe, and confining it to the parifh would prevent any difliculty in refpc£l to the precife limits of the place : indeed to direct the enquiry through a v.'ider dlftrift might be pro- ductive of contrariety, as well as uncertainty. A third iffue not rehtive to this fpecies of tithes was prcpofed to the plaintiff to elsd; whether he would try it or not, who having finally v/aived tiying any of the iffues, his whole bill was difmiifed, but without cofts. This judgment, and the argu- rnents contained in it embrace the nicfl material points in the law concerning the tithe of wood. There is a fhort note of a {zv) cafe in an old reporter fimply ftating, that young oaks under twenty years growth, act for timber in time to come, fhall not render tithes. It is difHcult to conceive what could have been in coniroverfy (w) Wray v. Clench, Mo. 908, on Ch. IV. Things Tlthable of Common Right y ^c, 105 on this occafion : if lopped under that age, they were always deemed tirhable. The fame is the cafe of acorns from oaks of any growth. Afli and elm are upon the fame footing as oaks, and fo are fuch trees as are timber merely by the reputation, and cuftom of the country. Therefore (x) it has been decided, that billets and faggots were ex- empt from the payment of dthes, . for that the fame were cut from trees of above the growth of twenty years before they were made pollards, wi hout difcriminatirig between oaks, and other timbcr-trees ; and where the trees are clearly of a fpecies to be dcnomina'ed timber, the court has de- clared (a) they would prefurne the trees to be above twenty years growth, unlefs the plaindfF demanding tithes proves the contrary. The tithes, to which the quality of timber is moft com- monly afcrlbed by the cuitom, and reputation of places in which they grow, are (y^. beeches. Birches z) may by the fame means be privileged from tithes. Many (a) other trees, namely, horfechcfnuts, limes, afpen, and cherry trees and willows feem to (land in the fame predicament, that is, they are capable of the fame exemption by proving the cuiloni of the country. On the contrary, fome trees -^b) as alders, hazels, hollies, and others, are of fo mean account in this C/e'iGwill. P4. iMoroen v. Knight. (■:;) Mo. 907. Fofter v. Peacock, (a)Bunb. 126. GwiU. 045. Lloyd Mo. 8 2. 2 P. Wms. 606. 2 Inft. V. Mackworth 3 Burn. Eccl. L. 64.:;. contra. 43 1 . fays that in manyphcos, v.-here (^a) 2 P. Wass. 606. Gwill. 35-7. wood is plentiful and grows freely, Wrightv. Powle, Hob. 219. Gwill. it is the cuftom to eftimate the fame ^rg_ „. ^"ufflv v. Pindar 2 Rol. R. by meafuring round the middle part 33, as to cherry, a(h, and beech of the tree, and if it is 2| inches in ^^^^^^ ^^^ j^ j^ ^^^^^^ thatafpe trees circumference, it is deemed of 20 ^ r 1 • u r .u k-rve ror arrows, which are tor the years growth, if under that meauire, . r r^u 1 . . ^ , , , defence of the realm. It IS accounted underwood. (y) 1R0I.R.355. Gwill. 398.n. (^) Degge, p. 1 1. 0.4. n GwiU. Lapthorne v. fe- Bibye v. 5+3- GoCdall v. Perkins. Huxley. Baab. 192. Gwill, 657. n. [dj ibid. 6* refped to6 Law cf Tithes. CfhIV, refped, that no cuflom or reputation as to them appears ever to have been fet up, or infided on. Thofe of this lafl mentioned defcription, of what age or bignefs foever, are regularly to pay tithes. Although as we have feen the bark of timber-trees is not tithable, tithes (r) fhall be paid cf the maft:, and acorns, becaufe thefe are of annual increafe. But {d) where the acorns fell from the trees, and were eaten by the owner's pigs, a fnit m the eccleiiartical court fur tithe of ihem was refirained by prohibition, for in order to become tithable, they mud be g-athered and fold, and then U) they muft be tithed it feems like other things plucked by the hand, by meafure, or weight. ^ It has been (/) decided that broom made into bavin?, and that wood growing in hedge-- rows, are tithable. This {g) doc- trine as to the latter has been carried fo far, tliat it has not been allowed to be exempted from paying tithes by proof cf a cuflom in xhe. parifli to that effeft, for that there is no dif- ference between wood in copfes and in hedge-rows; and fuch a cudom or prefcription am.ounts to a claim of being dif- charged from tithes without making any fatisfadion in lieu of them, and is void in itfelf. This determination adds force to what was before argued ; namely, that tithe oifylva cadua doef! not depend upon adirmative ufage, but is due dejure^ by the general law, though it may be prefcribed againft ir. certain known and extenfive diftrifts, as the wealds of Kent, and Suffex. As to {h) fruit trees, if the parfon has had tithe of the fruit produced from them, and the owner after- wards cuts down the trees, and of their wood makes billets ic) Degge, p. ii.c. 4. II Co. - f^) Gwill. 1508-9. 15 11. Man- ^9. a. tell V. Paine. (J) Lit. 40. Gwill. 428. Anon. (/&) 2 Inft. 651. Baxter v. Hopes, ie) Gwill. 1554. Knight V. Hal- ^ Inft. 652. i R. A. 641. Wood fey. Inft. i63. (/) G'.vill. 542. Biggs V. Martin. • and Ch.lV. Things Tiihablc GfCommcn Right, x^c. loj and fagj^ots, which he icl!s, he is not bound to pay tithe oi fuch billets and faggots. Rolle affigns as a reafon, that it is not a new encreafe. It I?, indeed, the deilnidion of the fubjecl from which any future an^.ual renewal is to fpring ; but fuch is the cafe of all trees not bein-g timber com- pletely felled in thinning copfes, and made into faggots for lale. Peihaps then the principle difclofed by Sir Edward Coke, from whom he takes the doflrine, is the founder ; and he tells us, it is becaufc the fruit and the faggots fjrthcom- ing from the ii-ime trees are not of feveral natures like fiuiis snd cam growiiig in the fame orchard, which are both tithable. On the other hand, if a man have (;') a nurfery ground, out of which he fells fruit, and other trees to be tranfplanted into another parifli, he Ihall pay tithe of them : For though the trees are parcel of the freehold, while they continue in the foil, being fevered from it in order to be tranfplanted, they ceafe tobe fo,in the fame manner as carrot roots, or the hke; and if they were not tithable, the parfon by means of fuch nurferies nrght be defeated of his dues from great part of the land in his parifh. Rolle who argued this cafe, in his report of it mentions alhes, which at twenty years growth are undeniably privileged as timber, but which by this authority appear when fold in this young ftate for tranfplanting to be tithable. By (7) a fubfeqnent de- termination, the matter i3 carried fomewhat farther, it being held, that nurfery plants fold and tranfplanted "j^'ithin the fame parijh are titheable aJfo ; and I apprehend, with as much reafon as any other produd of the earth fold and m.ade profit of among the parifhioners inftead of being carried to a more diftant market. But as to what is faid in this lad cafe 0) W. Jones. 416. Gwlll. 501. arg. to be full of bad law, Gwill. Gibbs V. Wybonne S. C. more fully 1 2 14. Adams v. Waller, reported 3 Cro. 526. 1 R. A. 637. (j) Hard. 380. G will. ^15. Grant pi. 5. but" this pi. 13 faid by counfel v. Hedding. of loS Lazv of Tithes. Ch.IV. of trees yielding fruit which pays tithes, and others yielding none, and of their being alike tithable, and that the former fliall not privilege, or exempt the latter^ when they are all fold together, I prefume it is not meant to imply, that tithes were actually paid of the fruit of the fruit trees, being pro- bably young faplings before they were fo fold for tranfplant- jng. I may new properly advert to an extenfive principle of exemption from tithe of wood founded on a regard to the purpofes of agriculture and hufbandry, from which occu- pations of life tithes principally arife, and are rendered more abundant. The {k) doctrine above alluded to, that the tithable quality of wood felled is not to be determined by the fubfequent ufe and application of it, fiiould perhaps be chiefly, if not altogether underflood in this fenfe, that its tithable quality does not depend on the defign of ufmg it for repairs, or for fuel, which defign may be fluc- tuating and uncertain ; but as to thefe two more general purpofes abfl:radLedly confidered, that the wood is tithable or not, according to its inherent nature before the felling of it. There is perhaps, no cafe where articles not originally chargeable with tithe in their own nature fhall become liable to that payment from the fubfequent ufe of them : but as to exemptions grounded on the above mentioned confiderations, of agriculture and hufl^andry, the law is otherwife. I. It (/) has been refolved that wood employed to hedge or fence corn, where the parfon has tithe of corn, as he re- (I) See Gwill, 829, 830. Walton of wood felled by him yearly at ten V. Tryon. years growth, and ufed in amending (/) Mo. 683. I R. A. 644. his hedges, and upon his land, and I Freem. 334, 5. Gwill. 562. Anon, otherwife of no prcfit to him, which But a defendant has in one inftance is I beHeve a fingle authority to that been decreed to account for tithes effe^. Gwill6o8. Smith v.Winiams. gularly Ch.IV. Things Tlthahle of Common Right, 'iff c, 109 gularly has without fome fpeclal difcharj^e, (hall pay no tithe, and It was laid down as a general rule, that no tithes Ihali be paid for any thing per quod decimc fnmt uheriores^ that Is, I fuppofe, by which tithes of the predial kind are encreafed ; not univerfally all thcfe of the mixt kind, as in fome cafes of milk, and young cattle. The wood privileged, (w) com- prehends hop-poles and ihclr barks, where the parfon or vicar hath the tithe of hops ; ofiers cut to make hurdles for fheep, and generally wood for maintenance of the plough or pail, or employed in making and repairing all utenfils of hufbandry. It is even (w) faid to have been adjudged, that where a man cut down wood, felling more than was fufficient to make hedges, and a£lually ufed the greater pari in hedging, that even for the furplus of the wood cut for fuch agricultural purpofe no tithe {hould be paid. Alfo {0) if a man cuts down his copfe-wood, and pays the tithes of it;, and afterwards before any new germins fpring he grubs up the roots and flubs of the wood, he fhall not pay tithes of them, becaufe they are parcel of the freehold, and donot an- nually renew. It is true that the reafon here affigned is not connected with the prefent topic, but may we not fuppofe another reafon to have been alfo taken into confideration ? I mean the view and purpofe of clearing the ground: As in a cafe (/»)where in anfwer to a bill by a re^^or for tithes, furze and bufheS;, which vv'ere cut and made into faggots and fold by the defendant, he infilled that no tithe was due^ but being [m) I Frem. 334. G will. 562. " new, yet it is the hufbandry- is the anon, contra as to hop-poles, GwiJl. <' main, &c." 2 Keb. 634. Watfon ffi^. Gee V. Pearch, but fee 564. n. v. Smith. and contin. of 581, 2. S. C. Gwill. («) i Cro. 499. in Eaft v. Hard- 1555. Bunb. 20 Gwill- 618. Bate v. ing. Spracking, ace. S. P, Deggc,p. 1 1. [0) i R. A. G^"]. Bedford v. c. 4. ad. fin. who cites White v. Skinner. Arch. S. P. adm. Gwill. 1506. 1^08. (/>) Gwill. 60S. anon, under in Mantel v. Paine, Gibf. 684. 2 Smith v. Williams. Inft. 652. '' Albeit the houfe be cut iro La'w of TitLxs. Ch. IV. cut to clear the ground, and prepare it for the hufbandry purpofes of tillage and grazing, and the bill was difmliled. n. For firewood {q) cut and confumed In a dwelling- houfe in the fame parilh, as it is generally ailerted in many books, no tithes are due. This as to Its origin is (r) afcri- bable to the fame principle, being founded en the necefTity of a habitation for carrying on the purpofes of hulbandry, on which tithes fo much depend. Therefore, in a caufe (j) where this defence was fet up, the court declared, that as it appeared that the defendant had not any boiife of hujhandry within the plaintiffs parifli, but that the faggots in queflion were carried to the defendant's houfe, being out of [he faid parifh, and there burnt, tithes v/ere due to the plaintiff, for the fame j and upon the like reafoning (/) it is laid down, whether authentically or not, that if a man hath a houfe of hufbandry with lands, and demifmg the lands referves the houfe, tithe of firewood is payable. It has {u) been made a queflion, whether this exemption of fuel is by the general law, or requiring the aid of a local cuflom to fupport it> Lord Hardwicke, C.(^') has given us his authoritative opini- on, that wood cut to be burnt in the houfe of the parifliioner within the parifh, is exeinpt from tithe, not of common right, but by fpecial cuflom only; and that it operates by . way of cuilomary exemption in refped of feme faiisfadiori to the parfon, which it is incumbent on the parilliioners to ihew. The encreafe of tithes arifing from hufbandry to which a dwelling houfe is effential may be thought to afford the parfon fuch requifite fatisfr.ftion ; and his Lordfhip relies fy) I R.. A. (544. ^'j^- ElHs V. (/) Gibf. 6S6. HuttonandCroke Drake, and Auftia v. Lucas, il)id, Jullices differ as to this matter, and I Cro. 609. S. C. 2 Inft. 652. Hetl. 8y. Norton v. Harmer. 8. Via. Abr. 59^- Gwill. 610. RoSe (,) , p.,,_,^„_ ^^^^ ,^ Gwill.562. V. Harding, Mo. 6S3. a„^^^j_ (x) Danv. Abr. t. Difnie*597. (,,■) q^.;^^ 5^^^ ,y^j^^ ^^ I Vent. 75, T-v-a. oa Ch. IV. TJmigs TltbahU of Common Rights ^c, in on (iru) a cafe in which, according to the cited report of if, it feems ailjud;;ed that it is not de Jure per le^em terns that any one is difcharged of tiihes for wood fpent in his houfe, or for fencing-Jiuff for hedges. This cafe, however, on another {iv) occafion having been cited at the bar was not thought decifive of the queflion, the court declining to come to any refolution upon the point, and ftating that there were opinions both v/ays as to fuel where there was no cuftom ; but they previoufly held that hop-poles and wood for fences were not tithable on general principles, and yet the other cafe fecms to include them, as v/ell as firewood. The truth is very numerous authorities, fomc of v/hich are above cited, fpeak often indifcriminately of wood ufed for agricultural purpofes,and for domeftic fuel, as exempt from tit lies, without any intimation that fuch exemptions depend on local particular ufage, and on the contraiy feem [x) to refer them to the common law of the land, and tjiefe exemptions coincide with other parts of the fyllem of our tithe laws. It may be added, that although in a late {y) [uu) 3 Cro. 113. Norton V. Fer- mer, G'.vill. ibid. n. but fee S. C. differently reported, and finally de- tt^nnined, becaufe of ihe cuftom al- ledged. aadthc verdifl againil fuch allegations, and by Croko and Yel- verton, there are divers precedents otherwife wtkout alledglng a ciijlom , Hetl. 38. I o. 1X7. PerCrokethe parfon had a benefit, for he had bet- ter means of tithes, Hetl. 89 and Gibs. 6S6. i^eaks of a houfc of huf~ handry. (w) I Freem. 334. (x) 2 Inft. 652. (7) Mantell v. Paine, Owi'I. 1506 1508 The point ihll there- fore may feem d0abtf.1l, notwith- ilanding C, E. Parker's cojr.urrsnce with Lord Hardwicke, that the ex- emption of fire-wood is only by fpecial cuftom, Gvvill. 965. and n. 960. and n. Erflcine v. Ruffle. Both tlief^^ great judges iafillonthe cafe ia 3 Cro. I 13. without adverting to the report of it in Hetley, which feems to make the otlier way, the C. B quotes many other cafes for and againil kis opinion, fome of which I have not found, and foiae are not reported as to this matter. In Thomas v. the Duke of Beaufort, GwiU. 969. n. a cuftom for the ex- eraption is dated In the anfwer, but does not appear to have beea proved Can the allegation or fur- mife avail without the proof ? Sz-i z Keb. 634. Watfoav. Saiith. cafe. 112 Law of Tithes, Ch.IV. cafe, the anfv/er of the defendant affefled to fupport the exemption of wood ufed for hufbandry purpofes, or for fuel within the parifii, by the allegation of immemorial cuftomto that effe«5bj it docs not appear that any fuch cuf- tom was fubftantiated in proof: and furely fach proof was not neceflary as to the wood ufed in hufoandry, and yet both thefe grounds of exemption were indifcriminately admitted as legal by the counfei for the party claiming tithes. IIL It {z) is laid down, that if a man cuts wood, and .bums it in making bricks to be employed in the repairs or enlargment of his manfion, within the parlfh, for the neceifary habitation of hinifelf and his family, no tithes fhall be paid for fuch wood inafmuch as the parfon, it is faid, has the benefit of the labour of the family. But if he extend his buildings for pleafure or delight, as it is ex- preffed, beyond what is neceffary for his family, he ihall pay tithes, and the furmife to reftrain the ecclefiaftical court from proceeding, being only that he burnt the wood for the reparation and enlargment of his houfe generally, with- out faying for the neceffary habitation of his family, that court was allowed to retain the fuit, and by that furmife the judges of the king's bench declared he might build a caftle, and yet pay no tithes. I'hefe points which are adopted in the compilations of Degge and Burn, feem^ to coincide in principle with what has been before mentioned as to firewood. But {a) underwood fold for fuel, or to be converted into charcoal, or for other geneial purpofes, or employed in works of hufbandry in another parifh appears clearly tithable. (k) I R. A. 645. pi. 8, 9, 10. v.Hardinpr 8^8. n. Abbotv. Hlcks^ Nixon V. Browne. 1028. Ellis v. Fermer, 7C0. Bree v. ( ftaves, or any of the deftined purpofes of the other nine parts remaining at his own difpofai. I have before briefly confidered the perfons accountable for tithe of wood as between vendor and vendee of wood, (landing or felled. The authorities there cited confirm what Dr. Bum advances (^) as the criterion that he fhall pay tithe, to v/hom the other nine parts belong, zahen (3) Gwill. 830. Walton v. deemed good. Tryon. ' (J) Gwill 581, Gee v. Perch. {c) Degge, p. ii. c. 4. ad fin. (c) Gwill. "700. n. Br?.bourne See however Gv/ill. 1561. Knight v. Eyres V. H;dfey, and qu. whether a CL.f. (/) Gwill. 700- Bree %-. Drew, torn to fet out wood {landing by 701. Waterman v. Jones, fuch meafurement, would now be (s) 3 Eccl. 1. 460. I the 114 Lazv cf Thhcj, Gh ~r th--^ ti he becomes du3, that is, at the tl r.c of f Ding. In a cafe, (/3) therefore, wh'-re the court dackrcd. that tithes ir. idnd were due for wood converted into charcoal, a':d decreed accordingly againfl the defendant, who was the purchafer of log-trees, and loppings and toppings of other trees for that purpofe, we may obferve that he had cor- fefiTed by 1 js anfwcr that hd filled the wood fo converted, by which it appears to have b.een purchafed ftanding, though ftill it mav feeni ilrange, that he fhould pay tlie tithe of the value of the charcoal, iffuch be the. meaning of the decree, infr^ad cf the weed urimanufaaured *. V. ; proceed tc an article cf great importance to the tithe owner in parts, where the growth of it is r^ndvalcd, that of .bops. They have already been taken notice cf as faHin;^f under the clafs or divifion of fmall tithe:-; ; v.^'iether the plant be indigenous 'm this ifland, or not, the cultivation cf it for life has been comparatiyely ftiled modern, and in (i) many cafes been judicioafly obferved to have been in- troduced within the ri..nc of Jcrai mcmorv. which is earned • fo far back as th.p reign cf Richard the firil. Hops,, therefore, fland upon the fame footing as other tilings of late introduction. In a (J) judicial argument of chief baron Corny ns, they arc ranked with heuip, faifron, and tobacco, and it is declared ail fuch /le-iv things Pnall be miniit.'S dec'nr.x. Accordingly it has been in l\vo (^■) dif- tinct cafes decide'd, that a modus, or eftablifced cuftom of paying a definite pecuniary funi in lieu and fatisfaction c^f the tithe of hoes, berm- a late tkin<^. is a void cultom, and tlc' (/j) Gwlil. 577. Coe T. Smith. (i) Cited in Knight v. YL^iicy. * This is the fame cafe, the cor- Gwill. 153 1 — t 565. redtnefs of v-'hich 13 in a note above ( ;') Cora. R-,638. WhIHs v. £mpeachedj in making the owner Payne. Gv.iII. JJ57. of cattle depaftured, inftead of the (jf) Sid. 443. Crouch v. Ref- occupier of the ajpfted land, L'able den. Gwill. 563. Gee v. Fearch. to agiftirieiat tithe, Gwill. 1557. warranted Cb. IV. Things Tiihnhle of Com:nG7i Right, l^c. 115 warranted by law, and the court taking effedlive cogni- fancc that hops were not of fufiicicnt antiquity to be the fpecific fubj.-d of a modus. But (/) hops, as well as other articles of novel introdudion, may be covered by a modus for all fmall tithes in general, which operates to difcharge (;;/) the land v/here tliey grov/. Tithes of hops as being of the predial kind muff be duly fet out ; the proper way of doing this was the fubjeft of rPiUch debate in a (n) late caufe refpecling this fpecies of tithe wittiin the pariih of Farnhilm- in Surrey. That fuit in the form of it was an action by the occupier of the land againff the tithe-ov/ner for neglecling to take away his tithes of hops, after they were duly fet out according to the ufage of the place. 1 ne qucition v/as, v/hether this ufage, which was proved to [luve exifled for a great length of time within the pariih, of fetting apart every tenth row, whenever the hops were planted in equal rows, and every tenth hill when they were planted xn unequal rows, and in conformity to which the tithes iw queltion were proved to have been fet out, v/as or v/as not available to the occupier, ar, a valid and legal cufcom. Evidence was . alfo adduced with feme minutenefs for the purpofe of manifefting the praftical expedience, if noi necefllty, of the cuilom inhiled on. On the other hand, the anfv/er m chancery of the piaiiitifi' m the aClicn wac readj admitting his belief that the introduftion, and urll cultiyation of hops in Farnham, and elfewhere in this kingdom, were with reference to what is termed legal time, mo- dern, and within the time of memory ; although the (/) I Sid. 443. Gwill. 1557. {m) 2 Keb. 6i2. Crouch v. The authorities to this purpufe Reiden. cited Buub. 20. n. are not ex- (n) Knight v. Halfej. Gwill_, prefsly to the point. Wats. c. "'■S'i^' "xlix. f. 448. I 2 court 2i6 Law of Tithes. Ch. IV. court takes notice of fuch being the faS:, without Its being fpecially proved. In this caufe, which was finally deter- minjpd by the fupreme judicature of the Lords in Parlia- ment, the cufloin was deemed void, purfuant to the opinions of the judges confulted, one only diiTenting. They (o) argued firll from principle, that all tithable articles, when newly introduced, are claffed among others, to which they bear an obvious refernblance, and are ac- cordingly reputed great or fmall, and are required to be fet out and fevered in a fimilar manner, with thofe which they refemble. The right of the parfon to his tithes in kind accrues on the acl of feverance ; his right to take them accrues when after feverance, they are in the eariiefl ftage of hufbandry applicable to them, at which the tenth part may be vifibly diflinguifiied from the other nine ; what (hall be deemed a feverance depends on the tithable fubjecl. No other feverance in articles of annual encreafe has been judicially recognized, except that from the foil, and that from the pa- rent ftem. According to the principle which re- quires fruit, and feed, after they are gathered or col- leded to be fet out by meafure or weight, hops mud be tithed, after being picked In the fame manner. The jflower of the hop is the fole object of cultivating that plant, of which it may be confidered as the fruit, and it mufl be picked, and gathered on the fpot to preferve its quality, and value. The judges then advert to the cafes which had been cited, the lateft of which v/as decided by the fame high tribunal tliey were then addreffing, and by which on appeal the decree of the court of exchequer had been In that caufe affirmed. By this feries of authorities they held it to be fettled, that the feverance of the tithe of hops is by feparating the fruit from the flem. It is then eftabliihed to be the general rule of the common lav/, that {o) Gwill. I'j^i, See- the Ch. IV. Th'mgs Tithahle vf Ccmmo?! Rights 'zsfc, 117 the tithe of hops are to be fct out by meafure, after they are picked from the bind, or ftem, and before the enfuing ftage of drying (/») them. This being the general rule, they proceed to enquire, whether the particular ufage in- filled on in derogation of it can be legally fupported. Such ufage amounts to this, that thj occupier fhall, at his difcretion, leave for his redor the tenfh part of the hops, not fevered as the common law principle requires it fhould be, but in a ftage of hufbandry fliort of that, in which he is intitled to receive fuch tenth part, and that without com- penfation. Calling upon the recior to incur expences, which he is not by law obliged to bear, comes to the fame end as abridging the quality of the tithe, fince both ahke re- duce his profit. Three diflind things, befides the rules and principles of the common lav/, may control the right of tithe, namely, cujlom^ modus, and real compofiUon, which three red on different foundations. Cuflom in refpecl cf predial tiihes, as thefe are, chiefly regards the manner cffetting them out. Now the ufage here infilled on cannot be referred either to a cujiomy or to a modus, both of which mud be immemorial, becaufe the cultivation of hops was introduced within the time of legal memory. Laftly, they agreed that the plaintiff's cafe could not be fupported on the ground of a real compofition, (which I Ihall defcribe hereafter, and which is more properly a difcharge from tithes, than a regulation of the time, or man- ner of tithing,) becaufe here v/as no compenfation, no mur- tuality of iofs and gain, nor any evidence that fuch agree= ment ever exifted. Upon this reafoning, and for {cf) that the ufage contended for by the paintiif, would furnifh to the farmer a flrong temptation to defraud the parfon, and would fubjeft the property of the church to immi- nent peril, they thought thfe diredion given by the judge ^ (/) Gwill. J554. {q) GwilL 2560, i) exprclTes a doubt whether, as the law now flands, the cattle fliail not pay tithes in kind, only where they are milked, and an agiilment tithe in the other parifh. Such double tithing^ however, of miich-cattle feems at leaft not to be warranted by the authority which he fubjoins, and v/hich is the cafe cf the parfon of Swil- lington, and an inhabitant of the adjoining parifii of Kip- pax before referred to, under the articie of agiftment : Such inhabitant had carried the milk of his cattle depaf- tured in Swillington to his houfe in Kippr.x, and ufed it there. It was argued that if a man has arable land with- out a houfe, as was the cafe of the party here, who had no houfe at Swillington, he is intitled to be difcharged of the tithes of the milk, which maintains the fervants, who (m) Lyncl. 199. *' but to infill upon the whole (?/) " Sive vaccamm five ovium " right againft which the cuftom *' vel caprarum alicrumve anima- " has not prevailed." j Lord •' lium de quibus colligitur lac." Raymond. 137. Lynd. 200, But it feems tithe of (0) Non cqualiter fed proper. ewe-milk is only due by cuftom, for tionaliter, Lynd. 198, but any a prefcription to be exempt from fuch divifions. payment of it is good. i R. A. (/) 3 ^ccl. 1. 450. 654. Giles t. XXX. c 5. " This is 2 plough Ch. IV . Things Tiihahk of Comiuzn Right, "^c. 127 plough the land, ?.s much aG if he had had a houfe, in which the milk was fpeiit ; but the court arifwered, that the' law was otherwiff •, for it is of the fame itature vviLh wood that is burnt in the houfe, which h exempt from titiics only fo long as it is fo confumed. Such alfo is the law in refpecl of milk, which is difcharged of tithes only becaufe it-is ufed in the houfe j it was therefore refolved by the whole court, that the parfon of Swillington niould have tithes of the milk of the milch cattle depaHured in his own parifli ; but of courle he was not alfo entitled to an agiftment tithe, nor could it be claimed by any body elfe? confequently this cafe if intended t6 elucidate the doubt above fuggcfted has, not that elTeft, nor have I met with any exprefs adjudication as to the tithe of milk, where the ccv.s have been kept in one parifh and milked an another : But the follovv^ing (g) decifion reported as ex- tracted from the decree-book of the court of exchequer, where the cattle are ftated to be both kept and milked out of the demandant's pariih, requires explanation : The vicar of Sup'ncy fucd among other things for the tithes of milk, declaring his readinefs to have accepted a fuppofed modus of fixpence for each cow in lieu thereof : Th i defendant not only infnled on the modus, but further that for the cov.s he had kept on a farm called Red Lion Farm^ being ahvays milked in IVhitechapel, he ought not to pay tithes, the farm houfe being in the parifli of Whitechapei, and he having paid titkes for them to the reftor of that pariih ; yet the court ordered the defendant to pay for the tithes of all his milch cows, as well thofe kept on Red Lion Fan?!, as thofe in the pariih of Stepney, at the rate of fixpence a cow yearly, although the fame had been milked in the parif-i of Whiiechapel. The reafons of this judg- ment do not appear. If the modus were perfonal as to (7) Gv/ill. 607. Wright V. Elderton. all 128 Law of Tithes. Ch. IV. all the parifiies keeping cows 'nd a bill to eftablifh a cuflom ; a farmer will not fet out his tithe in a way that is burthenfome to him- felf, without a cuflora. Accordingly, the plaintiff pre- vailed in obtaining a decree for an account of thofe tithes without the hazard, and inconvenience of referring the exiftence of the cuftom to a jury. it may be recolieded from what has been Hated, that this fpecies of mixt tithes is required to be fet out by the common law, as it is enforced by the (^) ftatute of Edward VI. in regard to all tithes of the predial kind» The common law method then of tithing milk is thus laid down : (s) '• That if there is no particular cuflom *^' or ufage,the parifhioner is obliged de jure to pay every *' tenih meal ; to milk the cows at the ufual place of ^' milking into his own pails, and the parfon is obliged to ** fetch it away from the milking-place in his own pails " in a reafonable time ; and if he does not fetch it away " before the next milking-time, the parifhioner may " juftify the pouring of the milk upon the ground, be- " caufe he then has occafion for his own pails.'* And it was alledged to have been determined by the whole court, that the milk ought not to be carried either to the church porch, or to the parfon'^s houfe, but that it ought to be fetched by the parfon. On this lafl point, as on other branches of tithe law, much uncertainty and fludua* tion of opinion have formerly prev) a caufe comprifmg various matters ; but in which the manner of tithing miilk was confidered as the principal, and moll interefting queftion. The defendants, the parifliioners, profeHcd to have duly fet out to the plaintilF, the rector, for his tithe, every ffth evening meal, which they faid was the tenth meal, to v^^hich the parfon was entitled. The plaintiiF, on the other hand, contended, that the tenth meal's milk properly included the two fuc- ccffive m.eals of the tenth day, and of that opinion was the ■ (e) Bedle v. Miller, cited in fore, he was decreed to account. Erfkine v. Ruffle. Gwiil. 969, Gwill. 11 14. pyo. [g) Gvvill. 529. in Dod v. In- (/) Biinb. 20. Gwill. 61S. glcton. See Gwill. 11 12. 3, 4. Bate V. Sprakling. The defendant 1 1 18. T. R.aym. 277. S. C. -had fet out the tenth of each meal [h) Gwill. iioi — 1120. Bof- tsfhich WS3 clearly v/rong, there- worth v. Limbricka court CIi, IV. Things Tithable of Common Right, ^c. 133 court of exchequer ; and after citing (/) numerous cafes on the fubjed (/) accordingly declared the plaintiff entitled to the tenth morning's meal of milk, and the tenth even- ing's meal of milk, and ordered th^ defendant to account for the fame with coHs. From this part of the decree there was an appeal to the houfe of lords, where among the printed reafons on the part of the appellants, it was urged, that the mode of tithing eftablifhed by fuch decree in giving to the refpondent the whole meal of every tenth morning, and every tenth evening was giving him, inflead of the tenth meal, the nineteenth and twentieth meals, be« tween which there was no more connexion than between the firlland twentieth, and that to deprive the farmers of the whole milk every tenth day, would fubjeft them to great hardfhip, and inconvenience. Among the reafons^ on the other fide, the fuggeflion of inconvenience was fifted in detail, and fuch detriment fhewn to be inconiider, able, though that ought not to outweigh the juflice of the cafe ; that the tenth meal, and the tenth day have been, and ought to be confidered as expreffive of one and the fame idea ; and the tenth of the morning's milkings and the tenth of the evenings milkings have conjunctly been confidered as the tenth meal ; in confirmation of which proportion reliance was had on the expreflions of the decretal order in another caufe above quoted; that the produce of an evening's milking, was on an average throughout the year, at leafl cne-third lefs than that of a morning ; v.hat therefore had been done by the appel- (i) But not wh?,t is faid refpect- if the cows had been begun to be ing tithe-milk inScolesv.Lowther, millced in the evening, inflead of Ld. Raym. 129, nor this part of the morning, then the tithe -milk ^rfliine v. Ruffie. Gwill. 961. y/ov-Id have been due in the even- (_/') Premiiing, however, that it ing, and in the morning of th efuc. .vas by accident it happened to be ceeding day. Gwill. 11 15. ;he whole mil^ of the day, namely, %, ^ anes 134 -^^"^ ^f Tithes. Ch. 1V« lants was no more than fettlng out (/) a part for the whole, which was void ; as a prefcription to pay lefs than a tenth is a void prefcription. The cafe v/as argued at the bar of the houfe in the prefence of feveral learned lords, who then filled, or had filled, the higheft judicial ftations, when, v/ithout any debase or divifion it was " ordered and adjudged that the appeal be difmifled, and the decree complained of affirmed," without taking any notice of the coils of the appeal. Thus the legal fenfe of the tenth meal of milk is finally afcertained, and eflablifhed. But a$ it was {ni) remarked on this occafion by the court ap- pealed from, there exift fcarcely any modes of taking tithes in kind wholly free from the probability of mutual inconvenience, which may fuggefl mutual accommodation^ and lead to the fettlement of a reafonable cQmpofition be- tween the parfon, and the farmer. It is obfervable, that the printed reafons of the appellants and refpondent concur in this refpedt, that when the tenth meal was originally declared to be the right of the parfon, it was fubftituted in the room of the tenth quart, or th^ tenth difh, or the tenth part of each meal, which was be-? fore fuppofed to be the thing really due, and that fuch tenth meal was introduced in favour of the clergy, and to remedy the inconvenience, which they fuftained in being oblige4 to fend for, and take away the produce of fo numerous tith, ings. And yet, notwithftanding this coincidence of opinion in thofe who pennQd thefe flatements in other refpefls ad^ verfe, in a (;2) judicial argument, which I have more than once referred to, the doftrlne, that tithe of milk is due the tenth day is traced back to the (o) Anglo-Saxon laws, an4 (/) Bunb. 307. Gwili. 711. (0) *■'■ Et qui cafe:im fecerit, det Brincklcw v Edmunds. " Deo declmunitfi vera non fecerlty (m) Gwill, II 14. ** lac decimo die." Ap- LL. Edw. (h) Gwill. 969. in Erfkine v. Conf. quas Guil. Baftard confirm , RufBe. Wilk. LL. Anglo Sax. 198. Ch. IV, Things TithaBie cf Common Rights l^c, 135 it is added, that the tenth meal of milk is due of common right, and that this certainly is the mod equal rule of tithing milk, though at fome times the parfon •-A-ill have the advantage, and at other times the parifhioner. How then is it the moil equal rule ? Tithing it by meafure is fub. jeft to no occafional difparities, and perhaps the (j)) alleged inconvenience of that mode is magnified in fup- pofition beyond the reality, othervvife it would hardly have been eftablifhed, and continued as the (y) incon- teflible law throughout the long civilized realm of ancient France. But with us, undoubtedly, the tenth meal, as above interpreted, is the fettled criterion of the tithe of milk, IX. Another tithable matter belonging to the clafs of mixt tithes is the article of ivool, this fubjed hath been before touched on under the head of agiftment. Tithe (r) of wool is due of common right, at the time when it is clipped ; but by prefcription it may be fet out the whole together at another time ; and if the fpiri- ;ual court will not allow fuch prefcription, that jurif- (/>) The tenth meal is faid to " hutyro ut etiam decima deheatw* liave been eftablifhed by reafon of Sffr. Rebuffi Tmc. de Dscimis, the trouble, which would other- Qusft. VT. § 7^^. Thefe trads wife accrue in coUefting fo fmall of Rebuffiss are exfremcly fcarce, parcels. 2 Danv. Abr. 596. the copy I confiilted belongs to {q) And tithe-milk could not the Royal College of Phyficians. te made into cheefe without the " Pintis." I fiippofe, means Eng* confent a§ itfeems,tacit or exprefs, lifh quarts. Du Lange, Glofi. v. of the parifli prieft entitled thtrreto Pii:t.i : i-.'< " A' rs Jrinte" wiucli *' De la&e idem videtur ul ex decern is an Englifh quart. ^' plnt'ts una deheatur, iainenji Jiant (;■) Wats. c. L.. 566. IVT » **■ devoluntate curati expr ju vel ta- 910. 2 Cro. 702. Gwill. 2IC. *■ cka,careidecimusprf'' " vrnrato Green v. Hun, << tmod eji magh frequens.Etiiem in ^ 4 diction ji6 L^zv cf. Tithes, Ch. IV. diclion fliall be reftrained by prohibition from proceeding in the caufe. Tithes (j) are due for all fleece-wool ; but locks of wool feem to be not tithabie ; indeed, in the cafe referred to, a cufloni was alledged to difcharge the latter : A like prefcription (/) to pay the tenth fleece in fatisfadion of all locks and tithes of wool has been de- clared to be good in fubflance : And in another book, (u) it is faid that fuch prefcription ought to be of locks of wool cafually loft. Yet it appears from other (v) authorities, as if locks of wool not being more than ordinary, and where no fraud is ufed, are exempted from tithes by the general rule of the common law, without the aid of any cuftom. or prefcription ; and, (zc) if the parifnioners without fraud before Ihearing time, cut off the dirty locks called the birling of flieep, of this no tithe fhall be paid ; accord- ing to two cafes, in one qf which, however, it was fur- mifed, as a confideration for the exemption, that the party claiming it wound up the tithe-fleeces for the par, fon. So if a (x) man fliears his fheep round their necks about Michaelmas, to prcferve them and their fleeces from brambles, and not for the benefit of the wool fo clipped, but fairly and without covin, no tithe is due for fuch clippings, or neckings ; though here too, according to ()') another report of what appears to be the fame cafe, it was judged neceffary to fupport the difcharge by a fuggeftion, that the parifliioners ufed to wind up the other fleeces at their own charge. . (j) Gwill. 579. Lifter v. (w) i R. A. 646. Degge, poy. p. ii- c. 6. (/) I Cro. ^6^. Jefop V. (.y) I R. A. 645. Degge. p, Payne. "■ c. 6. (u) Mo. 911. Anon. (y) Bui. 242, 3. Fofs v, (v) z Inil. 652. God. Rep. Parker, called in R. A. Joyfe Vo Can. 462. Wood. Inft. 1. Engl. Parker. B. R. M. 14. J. i. 173" If Ch. IV. Things Tithable of Common Right, ^c, 137 If (z) {heep die of the rot, or other difeafe, or if the o\vner kills them for domeflic confumpUon, or fale, ftill tithe is due ; not indeed of the fkirxS, not being of annual renewal ; but for the wool of fuch fheep : though (a) 'if they die after being fhorn, and before the Eafter following, it is faid the wool is not tithable, unlefs the parfon can pre- fcribe to have it. "Wool (b) of lambs is tithable, though tithe has been rendered of lambs in their wool two months only before, for it is a new increafe. (^) And as Burn remarks, where a modus is paid for a tithe lamb, and the other nine lambs are fhorn, tithes fhall be paid of their wool, thofe of wool and lambs being different fpecies of tithes, and confequently a modus for lambs being no fatisfadion for the tithe of wool. It is laid down by {d) Degge, who extracts the doctrine from (^) Lyndwood, that if the Iheep of feveral pro- prietors departure together in one flock, or under one ihepherd, yet this ihali be no reafon for thier being tithed together, for every owner ihall pay tithe of his individual ilieep feparateiy ; but if the head of a family keeps his flock mixt with the flieep of his children, " in potejiate " pair is exijlentes, — time de ialibus debet fohi decima. *' tanqiiam de bo?iis ipjius patris." This latter cafe feems to be merely that of a father acting under the authority of natural guardian to his children. (z) Degge, p. ii. c. 6. i R. A. Baker v. Sweet, 3 Burn, ecci, 646. See Latch. 254. Anon. I. 474. Gwill. 825. Carthew (fl)Wats. c. L.567. F.N. B. v Edwards. T18. {c) Ibid. {b) I R. A. 642. Wats. c. L. [d) P. ii. c. 6. Cci6. Bunb. 90. G'.viU. 629. (r] Prov. 193, Some 133 Law of Tithes, Ch. IV, Some (/) writers afTert that the tithe of wool is to be paid to the tithe-owner proportionally for the time that the {heep are in the pariih, as, that he ihall have eight pounds of wool in eighty, of forty fheep, in the pariih a whole year ; four pounds of wool, if they were there only half the year, two pounds, if they were there only three months, and a tenth of a twelfth part of the wool, if they lay and fed a fmgle month in the parifh, for (^) no fpace of time lefs than thirty days fucceflively, and not by intermiffion, is to be taken into the computation for this divifion of tithes between different redors. But (/>) Burn on the contrar)^ dates, that it is now clearly holden that the tithe both of wool, and lambs fhall be paid where the iheep are fliorn, and where the lambs fail, that is, provided they be removed thither without fraud, and there be no equitable claim to any part of the tithes of the parifh from whence they came : That thefe tithes are ii; no wife to be divided, but the whole are to be paid where they lamb, or are fhorn, and an agillment tithe for them in every parifh where they have been depaftured, as being there unprofitable cattle, yielding no other benefit to thofe tithe-owners ; and that no regard is had to the ) attempts have been made to fix by cuftom a particular day for tithing Iambs, as on the feaft of St. Mark, and on the firil day of May. In (j) one cafe, the court allowed, that fuch Iambs as v/ere able to fubfiil v/ithout the ewes .on St, IMark's-day were to be tithed j but that fuch other lambs as were not then able, were to be tithed when they v/ere able to fubfiu; Vsdthout the ewes. In (r) another cafe, it was referred to three neighbouring juftic^s of the peace to inquire what v/as a fit time for fetting forth tithe lambs in that county, v/ho certified the firll of Auguft in their judgment to be a proper time, and the court approved of it. On (^) other occafions the court hath fimply, and generally declared a cuilom of tithing Iambs on St, (o) Gwill. 530. Croft V. Blake, Vincent. Gwill 1058. Bedford 3 Burn eccl. 1. 468. Gv.-ill. 630. v, Sambell, Croft's cafe, {q) Gwiil. 579. (/) Ibid, and Gwill. 579. (r) 3 Burn. eccl. 1. 469. Gvvil!' Liller V. Foy, 3 Burn. eccl. 1. 630 469. Gwill. 630. Heaton v. Re- (j) Gwill. 530. 3 Burn. eccl. gal. Bunb, 133. Reignolds v. 1.469 Gwill. 630. Bunb. 133 8 Mark's- Hi La^ of Tiths, Ch.IV^ Mark*s-day unreafonable, and void. But in the latefl (t^ cafe I have met with where fuch cullom was infilled on, the Court, though it appeared to them unreafonable, flill held that it ought to go to a jury, and if fads were proved on the trial, which fhewed, that in the county where the queflion arofe the cuflom v/as unreafonable, the jury ought to find againft it ; for reafonablenefs as well as ufage is neccilary to eflablilh a cuflom, A (li) cuflom that where the parifhioner has ten Iambs, the tenth (v) is due to the re£tor on St. Mark's- day, if nine, the redor to have one, and pay the parifh- ioner a halfpenny ; if eight, to have one, and pay the parifhioner a penny j and when feven lambs, the redor to have one, and pay the pariiliioner one penny halfpenny ; and that for a lefs number the re£lor is to have no Iamb, but is only to have a halfpenny paid him for each lamb under feven, has been eflabliihed as a good cuflom, not- withflanding it was objeded, that by the cafe of Reig- nolds againjl Vincent^ a payment on St. Mark*s-day was adjudged void ; but {w) the original reporter remarks, it was proved in this caufe, that the parfon had a benefit, for when there were ten lambs, after the parifhioner had taken two, the rector was to choofe his one. Burn ob- ferves (.v) that cuflom has eflablifhed in mofl places, that the parfon fhall have half the value of a lamb, if there are five lambs ; an entire lamb if there are fix ; and fhall receive or pay propordonally for the numbers under five or above (/) G will. 1058. wasadjudgedbadby the court. («) Bunb. 307. Gwill, 711. (w) Bunb. 308. Brincklow V. Edmunds. (x) 3 Eccl. 1. 471. ^44, ;. It (i)) Bunb. 133. One of the Hands there « under ii/e and a^ovf cafes juft cited in which a cuftom fix," but the redor's iargell cay- of tithing lambfi on St. Mark*s-day ment would be ai fix. fix J Ch. IV. Thbigs Tithahle of Common Right ^ l^c. 143 fix ; but the generality at leaft of fueh cuftorrr, fo far as it relates to the parfon*s having a lamb in kind out of any number under ten, feems contradided by a (j) cafe in the exchequer, in which it was decreed, that where there are above or under ten calves, lambs, pigs, and the like, the tithe of the odd number above or under ten, Ihall be paid according to the value, and not be carried over to the next year. It may be prefumed by the lait exprefTions, that the canon was in contemplation, which gives the re£lor his ele£lion, either to receive a pecuniary payment for the odd number, or to let his tithe run on till a lamb, orcalffhould be due in the enfuing year. The common law refufes him fuch power of eledlion, becaufc tithes mufl be paid annually : where, however, there is an odd number of lambs, the tithe of which is to be accounted for, and no exprefs modus particularly fpecifies the funis to be paid, I fuppofe they mufl be regulated according to the preftnt value of money. For if there (z) exill apre- fcriptive ufage, or modus of paying a halfpenny for every Iamb fold before May-day without any other tithe for them, and the parilliioner one day only before May fells all his lambs, this appears to be conflrued frauduffeu, as an undue and immoderate abufe of the cuftom, and he fhall not be difcharged by fuch cuHom, from paying the value of the tithe. Some doubt may, however, be entertained of the foundnefs of this lafl dodtrine ; but the mention of it marks at leafb the diftinftion between pre- fcriptive payments^ and what is meant by the value, or modern prices of articles on fale. (_)') Bunb. 198. Gwill. 661. in which Uie fame rule prevails of Egerton v. Still. Dcgge, p. ii. c. denying the parfon this eleftion, 6. 251. 2 R. A. 308. See (z) I R. A. 652. Wood inft. Latch, 254. Anon. The two 1. Engl. 169. laft books relate to tit]i:nj calves, If 'J44 taw of Tithes. Ch. IV, It is obvious, that what has been faid of Iambs is gene- rally applicable to the other young animals enumerated. Thus, (a) a fmgle calfhdxh been adjudged tithable, and the defendants feeking to oblige the vicar to accept a fhoulder of each calf in lieu of his demand, without the warrant of any cufloni for that purpofe, the court, upon debate of the matter, was of opinion, that the tenth part of the value of the calf, when taken from the cow, to be fold or killed, ought to be paid for the tithe of it ; which (b) value in cafe of fale is it feems to be afcertained by the adual price. Colts (^) are tithable in the fame manner as calves, and fo are kids (d). To (^) pigs, fuch cuftom was eftablilhed as a good local cuflom in regard to them, as I have before men-- tioned to have been eftablifhed refpe<5i:ing lambs, where a parifhioner has ten, jiiid regulating the fums to be refped'ively paid or received when they fall fhort cf that number. The court (/) hath alfo ordered a defendant to pay a modus, or certain yearly fum of twenty-pence, for every few that had pigs, which are a^ anytime kept by the plaintiff in the vicar's parifh, although fuch fows farrowed in another parifli ; but this was in a cafe before noted as requiring explanation, and not fo ■fully and particularly ilated as to be eafily under- ftood. {a) GwiU. 541. Kenyon v. [d) Wood. 169. Weft. (e) Bunb. 307. Gwill. 711^ {b) I R. A. 648. Brinklow v. Edmunds. \c) Gibf. 678. Wood infl. 1. (/) GwiU. 607. Wright v- Engl 167. Eldertcn. Laflly, Ch. IV. Thbigs Tithable of Cotiwwn Right, Iffc. 145 Laflly, as to thcfc young animals in general, it is 2rinafanferinafefcaJ?rina." Wats. C L. 457. L , defcrip- 1 4^ Law of Tithes, Ch. IV* de'criptlon offuch birds as zrefera jiatura, \vhich would exempt them from tithes without a fpecial cuflom render- Jug them liable. This matter, however, is now fettled 5 fur in a (^?ri) caufe in chancery in which tithes of them were demanded, the Mailer of the Roils declared, that he could not fee but tliat turkeys w^ere birds as tame as hens, or other poultry, and therefore, mull pay tithes ; but he ad- mitted, that if tithes were once paid of the eggs, there could be no deniand made a fecond time in refpect of the chickens hatched afterwards. And in another (ji) fuit in the exchequer it was adjudged, that no modus could ex- tend to turkeys, becaufe they are in refpect to time of modem introduction into England ; but as to birds really and elTenti^tlly feres natures^ as (&) pheafants, and par- tridges, if a man keeps them for breeding in an enclofed fpot, and clips their wings, ftill they iliall pay no tithes > though in one cafe they are exprefsly termed tame phea" fants and partridges ; while in another, they are faid not to he- reda'tmed^ and that they w^ould fly away if their wings *>vere not clipped ; the point feems to have been decided on theh: originally \p1c^^ and roving difpofition. XII. The lafl fpecics of tithable objs£ts falling under the denomination of mixt tithes are eggs : In refpeft to which it is to be obferved, that three (/>) eggs for every cock and drake payable on wednefday before ea.'ler, and for every hen and duck refpectively three es^s in lieu of tithee-jro's and chickens and ducks hatched in the parilh, has been eftablinied a good modus or cuflom (^). It hath alfo been adjtidged to be a good modus (m) :•, *Wms462. Gwill. 676. C. L. 457. See Dogge, p. ii. c. Carleton v. Brightwell. 8. (n) Buub. 307. Gwill. 711. (j) Bunb, 307. Gwill. 7x1, Brincklow v. Edmunds. Briiicklow v. Edmunds. {0) Mo. 599. Hugton V. (q) I R. A. 648, Pmce. i R, A. 6^6. Wats. 8 to Ch. IV. Things Tithahle of Common Right, ^c, 147' to pay thirty eggs in lent for all tithes of eggs. To the latter of thefe Gibfoii (r) objeds, that it feems inconfiftent with the principle of law that every modus ought to be fome- what, as to kind, different from the thing which is due ; but lord chief juftice Holt (.f) vindicated the determination by obferving, that the cuftom binds the parifhioner to the payment of fo many eggs at that time, and whether he have hens, or not, he is obliged to make it ; fo that he may be forced to buy eggs to pay the parfon, and that makes it a good cuftom ; but if ihe cuflom were, that he fhould pay thirty eggs of his own hens it would be invalid. As to perfonal tithes, they are fliewn in the laft chapter to confifl chiefly at leafl of mills and fifh, the general manner of tithing which was there mentioned, to be by the tenth part of the clear profits, after a deduction of the expences. (r) Cod. 679* (j-) Ld. Raym. o^fjo, in Hill v. Va^Ji',. 1 3 ( 148 ) CHAPTER THE FIFTtl. Things Tithabh by fpec'ial Cuftom. CUSTOM, in the fenfe in which it is applicable to every legal fubjcifl, mud be alledged and proved to be circumfcribed within certain local boundaries, as mod frequently with reference to the prefent fubjecl within the parifh in qucftion, and its vicinage. For (/) if it be a general cuftom of England, it is common law. There is this important difference to the reftor between things tithable of common right, and thofe tithable by cuftom only, that in demanding the former his tithe refts on the common intendment in his favour, and it is incum- bent on the adverfe party to difcharge himfelf as he can : Whereas, (?/) he who fets up a claim to tithes of articles not tithable in their nature, but by cuftom merely, affumes the burthen of eftablirtiing fuch claim by competent proof. I ftiail, therefore, embrace this opportunity of briefly obferving on the evidence adducibie for fuch propofcd end. Not (y) only adlual payment of the controverted articles in kind, but written, or other teftimony of a tem- porary compofition in lieu of it, may avail to fubftantiatc the right ; for the exiftence of fuch compofition ftiews that tithes in kind muft have been due. It feeras alfo, that (w) (/) Degge, p ii. c. 13. [v) Ibid. Vln. Abr. t. Evidence (;/) See Gwill. 840. in Walton T. 6. liy. pi. 3, and 4. Gwill. V. Tryon. But a defendant in 620. Gregory v. Lutterell, equity fetting up a modus (which [w) Vin. and Gwill. ibid. Li is a fort of partial dircharge) muft Arundel's cafe. Gwiil 529. Le be plaintiff at law, becaufe the ifTue grofs v. Levemoor. is upon him. 2 Ves. 516. Gwill. 859. Chapman v. Smith. books 6 Ch. V. Things Tithahle h^ f pedal Cufom, 149 books of account, memorandums, or entries, of any of the prefent incumbent's predccefiTors in the benefice, fpeci- fying what has been received in a certain year or years for particular tithes, wiii be received in evidence on his behalf. The (►v) books likewife of a ielTee of an impro- priate redlory Rating receipts for tithes are admiilible for the impropriator after the expiration of fuch leflee's in- tereft. For there could be no greater influence on the leflee's m.ind to fabricate untrue entries than on that of a fpiritual re6tor or vicar, fmce what he might infert would not be evidence during the term, either for himfelf, or his alngnee. On the other hand, in (jy) a fuit by a lay impropria- tor the defendant's books, in which entries of his father's deceafed (tcward of payment of a modus to the vicar were received in evidence againft the plaintiff to difprove his right to the great tithes of certain paftures ; but if the fteward had been living, he mufl have been examined perfonally on interrogatories, and the written documents could not have been read. The teflimony of a (z) wit- nefs interejled in the event of the fuit, although not a party, as in fupport of an exemption by a cuitom dated as co-extenfive with the diflrift, of which he is an inhabitant paying tithes, is of courfe rejefted. The rule {a) of evidence in courts of equity ought to be as analagous as pofTible, to that in courts of law. But in the former, where interrogatories are drawn out in writing, and the anfwers taken by the proper ofHcer, or by commiffioners 5 it is impofTible for the party to know what the witnefs will fay, confequently, he is not concluded, when the witnefs in the caufe of the crofs-examination appears to be interefted ; nor is the witnefs rendered coitipetent by fuch crofs-ex- (x) Gwill. 1 61 7, 8. Illing- (z) Gwill. 361. in Earl of worth V. Leigh. Clanrickard v. Lady Denton. (j) Bunb. 180. Gwill. 653 (rt) Gwill. 1255, 6. m ScQtt v^ Woodnoth v, Lord Cobham. Fenwick. L 3 amination t^o Law cf Tithes, Ch. V* aniiliation being proceeded in, there being no opportu- nity to the party of interpofmg, and of urging the objec- tion till after the depofitions are pubhflied, and the evi- dence produced to be read in court. Then if the party take the firft opportunity that offers by urging the objection to the competency of the vvitncfs at the hearing before the evidence is read, fuch objedion, if v^ell-grounded, ought to prevail. Tradition (/>) from ancient perfons deceafed is proper evidence in cafes of cudom, and ufage the principal, and general matter of enquiry in tithe) Degge, p. ii. c. 12, 13. as to the difference of pigeons fold (i) I R. A. 642. or confumed in the family of the \j') Ibid. owner, it is argued, that could not (i) Mo 908. Lyb V. Wats. make themmoreorlefsy>r) Gwill, 609. Nai^tcn v. Clarke. thofe iS4 "^aw of Tithes. Ch. V, tbofe confumed in the parifliioner's family, before ft wag clearly fettled, that thefe animals were not generally tith- able of common right. But in the next fucceeding term it was agreed by the fame comt, that no tithes were due for rabbits by the general law, and only by the cuftom of the place. It is, therefore, neceifary for the reclor affirmatively to prove fuch cuftom infifted on in his fa- vour. This then was (j) the third iflue in a caufe -be- fore fpoken of refting on the reQ:or to fupport, and which he declined trying, namely, whether by the cuf- tom of the pariih tithes were due of rabbits ; although the Lord Chancellor, in pronouncing his decree, thought, that the payment of a pecuniary compofition, of which fome proof was made, tended to fhew that tithes were there due in Idnd, of this fpecies of wild animals. In another (/) ftatement of the fame caufe lad cited, the plaintiff's counfel are reprefented as ftating it to be a great queftion, whether this be a predial, mixt, or perfonal tithe, adding that cuftomary tithes are gene- rally deemed perfonal. But if it were requifite to add another epithet to the term " cuftomary," perhaps it would proper to difcriminate according to the nature of the fubjeft matter, and, v/here tithes are due of things of the fubftance of the earth, to call them cuftom- ary predial tithes ; and where they are payable of other wild animals, as well as of fifli, which are reduced into manual poffeiTion by fome labour of the pariftiioner, tq denominate thefe cuftomary perfonal tithes. (j) Gvv'ill. 840. Walton v. (/) 3 Burn, eccL 1. 453, 4«, ( ^5S > CHAPTER THE SIXTIL Things 7ict Tithabk. TITHES fhall not be paid for hounds and the likeg becaufe, fays {a) Degge, they are things only of pleafure. If we trace this doctrine to its foiirce in the authority (Jj) cited by him, we find it indeed argued ia the manner of the year-books, " that dogs and cats are " not tithable, for the fpiritual law will not allow that " vermin fliould be tithes, for apes and marmofets are " but vermin, and if I grant to a man omnia bona ei Catalla, dogs do not pafs." But the (c) court in the fam.e caufe confidered hounds as kept not for pleafure fimply, but for necelTary ufes, and held, which was the point in debate, that an action lay for taking them. It may then be proper fomewhat to qualify the reafon, why- hounds are not kithable, by treating them as ufually, and principally kept for pleafure, and amufement. This prin- ciple applies to collections of foreign birds, and bealls, ia general kept as matters of entertainment, and curiofity, and operates to render them not tithable, independently of the wild nature of mofl of them, Subjed to the flight fpecies of exception, perhaps, all the matters not tithable by the general law, and never xnade fo in fpecial inflances by the allegation and proof of Jocal cuftom, owe their exemption to one common prin- ciple ; Imean the encouragement, and improvement of {a) P. ii. c. 12, (r) Ibid. 5. a. (/} Ycarb, iz. K. viii, 4. b. hufbandry. 15^ Law of Tithes^ Ch. VL hufbandry. Tliis is obvloufly the cafe of va-*ous articles incidentally and diftindtly before fpoken of, and of wliich it is not here intended to renew the difcuflion ; for ex- ample, after-pafture agiflment for beads of the plough, and wood ufed for ploughbote, and the like, are exempt from the payment of tithes, in regard to all which particu- lars the farmer is exonerated by the common law, and no local ufage, in derogation of it, has, I believe, ever been pretended. Another article (^) falling within the fame reafoning, and defcription, is that of headlands, fometimes called meres, balks, and butts in cornfields large enough only for turning the plough, for the hay growing on which no tithes are payable by the general law ; fuch fpaces being neceffary in the courfe of huibandry, and being efteemed part of the ploughed land, of which the parfon has the tithe. Though as to the ftatement {e) in one of our reporters, that this is the reafon of the cafe in the (/) year-books, the fubjeft before the court, was not a matter of tithes, (of which there is no mention,) but a cuftom for turning the plough on the adjacent headlands of another j fuch cuftom being alleged in juflification of a fuppofed trefpafs in fo doinn-» But the mofl pofitive, and diredl encouragement is given by the fhatute (^) of Edward the fixth, by which it is en- abled, that all fuch barren heath, or wafle ground not difcharged from the tithes by ad of parliament, which before that time had lain barren, and paid no tithes by {d) 2 Inft.652. I R. A. 646. {e) Lit. R. 3. Lit. R. 13. G\viU.427. Anon. (/) Yearb. 22. E. iv. 8. Bunb. 183. Gvvill. 657. Chapman {g) 2 and 3. E. vi. c. 13. ^ 5 T. Barlow# reafon Ch. VI. Th'mgs not Tiihabie. 157 reafon of the fame barrennefs, and then were or thereafter, Ihould be improved and converted into arable or meadow ground, fliould from henceforth, after the end and term of feven years next after fuch improvement, pay tithe for the corn, and hay growing thereon. The fe£lion, im- mediately preceding had provided, that no perfon fliould be compelled to pay tithes for any lands discharged there- from by the laws and ftatutes of the realm,' or by any privi- lege, prefcription, or compofition real : fo that (/j) all former legal difcharges are preferved. The fe£i:ion, immediately following that firft above cited, ena6ls, that if any fuch barren, wafte, or heath ground had before that time been charged with the payment of any tithes, and dould be improved or converted into arable ground or meadow, that then the owners thereof fhould, during feven years next foilovving from and after the improvement, pay fuch kind of tithe as was paid for the fame before the faid improvement ; fo that, as Degge (/) obferves, it appears plainly by the provifo, to have been the intent of the legiflature only to free the improved lands from the payment of fuch tithes as were produced by the improvement, which mufl be of hay, or corn, and no other. The terms (X:) ufed to denote the fubjed matters of this a<9: of parliament, about ten years after the palling of it, were thus interpreted in the language of an old reporter, namely, " i. barren ground is under- *' flood by the opinion, and judgment of the common ■ *' law to be that whereof no profit arifeth, or groweth ; " and ground, which hath been flubbed and grubbed, {h) Degge, p, ii. c. 19. {h) Benb„ 80. Gwill 131. n. (i) Ibid. 2 Inll. esC^ and tS^ ^aw of Tithes, Ch. Vl. " and after beareth either corn or grafs, is not '' barren : 2. Wajie ground is underftood fuch ground '' as no man doth challenge as his own, or no man can " tell to whom it certainly appcrtaineth, and as Heth *' uninclofed, and unbounded with hedge or ditch ; but " the ground that Heth inclofed, and hedged and ditched *' in, and the land known is no wafle ground : 3, hcaih *' ground is undcrflood fuch ground as is difperfed, and " lieth as common." The diftinftion between the two lad defcriptions of land is not very obvious. The ftatute in thefe provifions had a view to the en- couragement of the farmer, and the extenfion of culti- vation. Therefore, (/) though it contain no exprefs words of difcharge during the feven years, by a reafon- able conftruction and intendment an exemption for that period i^ implied. This inference is indeed irrefiftible, when v/e connect the principal claufe with that which declares, that fuch kind of tithes as was paid before the improvement fhould continue to be fo immediately from the time of fuch improvement-: Hence alfo it appears, that land (;//) may be barren within the meaning of this fiatute, though it yield fome fruit, and pay fome tithe as of wool, and lambs. But (^2) land proper for agricul. ture, and not in its nature barren, fliall immediately pay- tithe after being converted into a flate of tillage. This appears to be fully fettled as the criterion ; according to a ((?) late determination, where land, formerly part of a common depaftured by cattle and geefe, being inclofed, drained, and converted into tillage without any manure, (/) 2 Inft. 656. Degge, p. Saunderfon. ii. c. ly. („) 2 Inft. 6x,e>. (?;?) Z Inft. 655. See D)'. {o) Jones v. Le David. GwiU. 170. 6. Gwill. 130. Pelles v. 133G. produced Ch. VI. Things not Tiihable, I59 produced at the firfl: a valuable crop of oats : In that cafe the court, after the example of Lord Hardwicke C. on a (/)) preceding occafion, feem to confider the quef- tion of the natural barrennefs of the foil, as depending upon this other queftion, what was neceifary to the firft crop ? It is then inferred, that if land will bear a crop of corn without expence in tillage, it muft: be decifive that this land is not in its nature barren. It was farther argued in giving judgment, that inclofure Is eflential In fome fituations to the enjoyment in feveralty, without being eifentiai to the fertility ; and that draining may be a great improvement, rendering land more productive, which would ftill have been prcduftive without it : it was not, therefore, becaufe a great expence had been incurred by iuclofmg and draining land without more, that fnch land fliould be protected by the ftatute. And the impro- priator had a decree for an account of tithes after the fuit had been .pending feven years, but without cofts. In feme (.7) caies, however, where expences of an extraordinary kind are neceifary to obtaining a firft crop, as where a large bank was to be thrown down before the plough could go upon the lands in quepLion 5 or where, from the expofed fituation of the ground, no corn could grow there without previoufly incurring the ex- pence of ftoncAvalls to proteft it from the feverity of the climate, the hufbandman has had the benefit of the (tatute, thefe meafures being deemed more eifential to give fertility to the foil, even than manure. {j)) I Vez. 115. Gwill. S23. toibid. 133S. reported ibid. 1 197^ in Stockwell v. Terr)'-. ■ wliere the circumilance of the (y) Byron v. Lamb, cited .ftone walls is not fcated ; and it Gwill. 1338, reported ibid. 159-f. appears the queftion of barrennefis Hutchins v. Maughan, alluded within the ftatute, v^eut to a jury. Oa i5o Laiv of Tithes. Ch. Vt, On the other hand, it is fettled (r) by numerous autho- rities, that land, where wood grew, or whi_h was full of thorns and bulhes after it is flubbed, or grubbed, and made meadow, or arable, and fown with corn or grain, fliall pay tithe immediately, without deriving any exemption from the ftatute. For fuch lands are not in theii" nature barren, but their being unprodu6iive is attri- butable to negligence, and ill hufbandry ; but the cafe is otherwife, in refped; of lands rendered fertile by foldage, and the various indullrious means of agriculture, by which the foil is not fimply meliorated, but eifentially changed. Such v.'as the fcope of chief juflice Pop- ham's reafoning, with whom the other judges concurred, in the reign of Ouecn Elizabeth j and fuch has continued to be the received do£lrine as to this point, amid the fluctuation of other tithe queflions to the prefent time; for in the lafl of the cited cafes we find Lord Hardwicke expreffing himfelf to the fame elfe<5i: : " that " land, if in its own nature it is fit for tillage, but by " reafon of wood, or other accidental circumflance, it *' was not turned into tillage before, upon the taking *' away of that accidental circumflance, it fnall pay " tithes prcfently, on being turned to tillage ; for " the aft does not confider the expence, but that you " may, by pollibility, be paid, as by the timber, under- " wood, &c. But if afterwards this land will n-ot pro- " duce, unlefs dunged or chalked, the court has confi- *' dered this as evidence of its being barren in its own " nature, and not proper for corn, without additional (r) I Cro. 475. Gwill. i9g. 159. Gwill. 649. Beardmore v. Sherington V.Fleetwood. I Freem. Gilbert. I Vez. 115. Gwill. 335. Gwill. 562. Anon. Gv/ill. 823. Stockwell v. Terry. 563. Gee V. Pearch, Bunb. ** improve- Ch. VI. Things not Tithahk. i6i *' improvement.'* The ( ^ ) fame principle, that the ex- pence of the undertaking is no equitable criterion fctr affording the protection of the flatute to the land im- proved, feems to have prevailed in other cafes, two pre- ceding, and the third fubfequent to this decilion of Lord Hardwicke, that is, provided fuch expence is not incur- red as a necelfary means to furm.ount the fterility of the foil, but in the draining, fencing, or the like improve- ment of land not naturally barren. But however uniform the fentiments of judges have been in refpeft to wood-lands grubbed up and improved, in regard to another defcriptlon of ground, there appears to have been a difference of opinion, if vv^e may truft the authorities ; for according to (/) one cafe, fens or marfhes, which are drained, are not liable to tithes during feven years ; according to two other cafes (u)^ they are liable to the immediate payment of them ; and {y) if land be overflowed v/ith water, and after- wards drained by induifry, tithes will be pavable imme- diately, although it had been ovcrflow-ed from time im.- memorial. Thefe contfadidions are afcribed to the fame year, and, as it feems, to the fame court ; but v/e need not hefitate in pronouncing, that if the fen or marih is naturally of a produdive quality, tithes are due imm.e- diately upon the draining and cultivation : This is confirmed by {yiS) a cafe in which it v/as contended, that ( J ) Gv.ill. 714. Doyley v. Anon. Hornby, i Rol. R. 354. 3 (1.) I Cro. 475. Gwil!. 180. Bui. 165. Gwill. 1574. Buck Sheringtoii v. Fleetwood. V.Witt, Gwill. 1336. Jones V. (w) i Rol. II. 354. 3 EuIL Le David, 165. Gwill. 1574. Buck v. (/) Gwill. 13c. n. Witt, Gwill. 825. in Stockwell («) Mo. 430. Cv.-ill. 166. V. Terry. M land iSz Law of Tithes, Ch. VI. land lately gained from the Severn fea. at the colls ci fhe occupier, was not tithable within the time limited by the flatute : The court, on the contrary, held this land, net bein^r naturally barren, to be within th-? meaning of the ftatute. And it was flated, that if a man has a fait marih, which has ufed to be overflowed by the fea, and he makes a fence againll that element, and lays it down in meadovv-, tithes fliall be paid of k, for the land is not of its own nature barren ; barren land, according to the flatute, being fuch as will not produce corn without extraordinary manure. The (.y) quellion, whether land is barren within the Tieaning and benefit of this acl of parliament, has b-een lactermined to be triable at common law, and a prohibi- tion was accordingly awarded to the fpiritual court. But courts (y) of equity, on the fads appearing before them, of w^hich fads they are judges as well as of the refuit in point of law, have repeatedly de- cided whether lands were barren, or not, in the fenfe of the ftatute, without the intervention of a jury, whofe prejudices as (z) Degge on this -occafion in- timates, are by no means favourable to the rights of the church. If (^) lands were barren heath, or waile ground, at the time of palling the ad, and were improved, and enjoyed, or might have enjoyed the benefit of this law, and after- wards reiapfe into their prlfline barrennei's, the occupier (k) 1 Keb. 253. Anon, vid, 1594. ByroE v. I.anib, {y) Gwill. 823. Stockwell v. (2-.) F. ii. c. 19. Terry, 1336. Jones v. Le Da- (a) Ibidv Ch. VI. Thifigs not Tithahle. i{)3 of fuch lands cannot claim the benefit of the flatute upon a fecond improvement. Laftly, it may be remarked, that {]}) as one claufe of the flatute requires payment only of the tithes of corn and hay after the feven years ; and as another claufe provides only for the payment of fuch kind of tithe as was paid before the improvement, for the feven years next after the improvement, without exprefsly directing other tithes than thofe of corn and hay, to be paid after the feven years ; a difchargc might be inferred of all other tithes, except of corn and hay, after the ex- piration of the feven years. But to this it is anfwered, that there being fcveral ftati.jtes ena£ted, and received canons in force for the due payment of tithes, and no negative v/ords in the law of Edward the fixth, it fhall not, by implication, abrogate thofe prior inflitutions to the prejudice of the church. (/>) Degge, p. ii. c 19. M » ( i64 ) CHAPTER THE SEVENTH, Exemptions general. 'HE uifchargss from payment of tithes remaining to be difcuHed depend not on any intrinfic, or eilential quality of the articles themfelves; but are wholly built on fome collateral foundation. Such exemption may be either general in its nature, called a prefcription de non dccimandoj or of partial extent only, not operating as a total difcharge, but prefenting fom-e fubftitution for tithes in kind, denominated a modus declmandi ; which latter fpecies of difcharge comprehends the doftrine of modufes, and conipofitions. Mere (a) non-payment of tithes, although from time immemorial, does not amount to a difcharge, without Ihewing fome fpecial ground of exemption. Indeed there have been (Z>) cafes where this fpecies of general defence may feem to have prevailed, by fruflrating the demand of tithes ; but the}^ are attributable to the plaintiff's declin- ing to profecute the ccnteft, from a probable confciouf- nefs that legal exemptions really exifced in thefe inftances, and would be eflabllihed in proof. On the other hand, in one cafe, in which (c) a defendant to a fait by impropria- tors urged, that no fmall tithes, nor any fatisfadion, nor compofition for the fame, were paid by, or demand- (<2) 3 Burn. EccL !. 393j Breary "Warwick v. Lucas. T. Maiiby. Gwill. 904. (c) Com. R. 643. Gwill. 757. {l>) Gv/ill. 559, 765, 6. Medly Aldermen, &c. of Bury St. Ed- y, Talmvj and the muycr, Sec, ef mund's v, Evans, ed. Ch. VII. Exemptions general. 165 ed from him, or thofe under whom he claimed, in refpe)• This privilege, although, generally fpeaking perfonal in the king, extends to his lelTee for years, or at will, for the pGiTeflion of fuch tenant is in point of law, the (w) Hicks v.WoodefonjGwiU. {o) Compoil v. pwill. 550. Slade y. Drake. Hob. 514. 295. Gwill. 385. 380. Jennings (/>) Earl of Hertford v, Leec h ) perpetual unity of poffeflion, in contemplation of law, becaufe the fame per- fons who had the lands, having the parfonage, they could not pay tithes to themfelves (y). But to render fuch union valid. It mud have been accompanied with certain incidents : Firft, it mud have been jujl, that is, claimed by right, and founxied on a lawful title, not the effect of diiTeifm, or other tortious op unjuft att, for an union fo produced would not have been a valid difcharge Vvithin the ftatute. Secondly, it muft have been equal ; there mufl have been a fee fimple, both in the lands, and in the tithes ; as well in the lands from which the tithes arofe, as in the parfonage, or re£tory ; for if thofe religious bodies had held the lands only by leafe, that would not have amounted to fuch an union as the llatute intended. Thirdly, it mufl have (0) Cro. Jac. 58. W. Jon. Sir William Jones 182. Star v 182. — 191. Freem. 209. Keble Elliot i Freem. 299. 217. Giib. Eq. Rep, 225. G-vVilI. (/)) See Clavillv. Oram, Gwill. 663. Urrey V. Bowyer, Gwill. 1354. 250. The Serjeant's cafe. Gwill. (y) God. 383. Boh, 24.1, 281, Foffet V. Franklin, Sir 248. Slade v. Drake, Kob. 295, Thos. Raym. 225. Gwill. 1579. Gwill, 390. Whittoa V. WeflcD, Gwill. 410. been lyS Law of Tithei^ Ch. VII. ^ been free ; free from the payment of any tithes, in any manner ; for if the abbots, or their farmers, or tenants for years, or at will, had paid any tithes whatever before the dilfolution, it may be alleged as fufHcient to avoid the unity pleaded in difcharge of tithes. And fourthly, it mufl have been perpetual ; the religious houfes mud have been endowed time out of mind, and mufl have had in their hands both the lands, and the reclory united perpetually, or before the memory of man, that is, according to the rule prefcribed by the common law, before the firfl year of Richard the firft, difcharged from tithes ; for if by records, or ancient deeds, or other legal evidence, it can be afcertained, that tlie lands, or the redory, came to the abbey fmce that period of time, fuch union cannot be ailedged to be perpe- tual (r). Nor merely from the abbey's being in poffefllon ■ of the lands at the time of its difTolution, Ihall an imme- morial poffefTion be prefumed ; but to ihew that the abbey had a right to prefcribe, fuch im.memorial poiTeflion mufl be proved {/). And, moreover, the lands of fuch religious houfes as were privileged ratione ordinis were exempt, and difcharged from the payment of tithes only during the time they were holden in their manu- rance, and occupation ; the exemption extended to their lands only dum proprih manibus excclebantur ; and confequently the lands of fuch houfes as were dif- folved by the flatute of 3ifl of Henry the eighth, fliall be free from tlie payment of tithes only to the fame extent, as they were difcharged, while they be- longed to fuch rehgious houfes ; that is to fay, while they are in the hands and manurance of the owners of them : It is requifite therefore for a party who claims fuch privilege of exemption cxprefsly to alledge and (r) Eoh. 248. zsc. {s) Chvill V. Oram, G'.vill. 1354- prove Ch. VII. Exemptions general. 177 prove that he is in the occupation, and manurance of the lands for his own ufe. It is not fufficient for him for this purpofe to flate, that he is feifed of the lands, for he may be feifed of them, and yet another may manure and occupy them {t). It has been remarked (u), that it feems extraordinary that this diflin6lion between occupiers, and owners fhould have been continued fmce the (latute, for that it is evident that no perfonal privilege to laymen was intended by the llatute ; but merely an eftate in that condition. But this exemption from tithes is fo narrowed only in thofe cafes, in which the religious houfes were privileged ratione or- dinis. They were by other means, as we have juft feen, capable of an abfolute difcharge, and then their privi- lege was not reftrifted to lands in their actual occupation, but extended alfo to lands in the poffeffion of their te- nants ; therefore, in a cafe {v) in which it was in evi- dence, that the lands in queflion belonged to one of the greater houfes diiTolved by ftatute 31ft of Henry the eighth, and that they had never paid tithes, the court prefumed an abfolute, not a qualified exemption ; not merely a limited difcharge, while in the hands of the owner of the inheritance, but a general difcharge while in the hands of the occupier alfo ; although it were more- over in proof, that the houfe v/as a Ciftercian abbey ; that other lands, part of the fame farm, paid tithes, while in the hands of tenants, and that the lands in queflion were never in leafe. {t) Fox V. Bradwell. Com. (w) By Clarke, Baron, Gwill. Rep. 498. See alfo Cowley v. 821. . Keys, Gwill. 1308. 1309. {y) Ingram v. Thackftone, Gwill. 819. N Nor 178 La'-ju of Tithes. Ch. Vll Nor is it a fufficlent ground of objection to fuch dif- icharge from tithes, that the lands were iti the occupation of a leflee under a leafe granted by the abbey, and fubfifl- ing at the time of its diifolution ; for although in the cafe of Lord V. Turk (w) it was held that the lands which had belonged to the Ciflercian order were not fo dif- charged, becaufe it appeared that they were in the hands of tenants at the time of the diffblution of that order, and confequently were not discharged when they de- volved by virtue of the ftatute, upon king Henry the eighth ; and although in the cafe of Cowley v. Keys (.v), in which it appeared that the lands in queftion belonged to the abbey of Cogglefhall, ad- mitted on all fides to have been one of the greater abbies, and were not in the acliuai occupation of the abbot, and convent at the time of their diifolution ; and it was ftrenuoufly contended that the words of the ftatute of the 31(1 of Henry the eighth, c. 13, namely, " have, hold, occupy, poffefs, ufe, retain, " and enjoy," are very precife and flrong, and evi- dently confine the exemption to the lands aftually in the occupation of the abbey, at the time of the diifolution ; that they were not, therefore, within the faving of the flatute : and moreover the cafe of Lord V. Turk was urged in fupport of that conftrudion, yet the Court, on the authority of Porter v. Bathurfl (^) determined on a fpecial verdift in prohibition, as well as on principle, and the reafon of the thing, were clearly of opinion that the words referred to in the ftatute ought not to be reftrained, fo as to (w) Bunb. 122. See alfo {y) Porter v. Bathurft, Cro, Dickinfon V. Reade, GwLll, 358. Jac. 554, 559. Gwill. 132, in {x) Gwill. 130*. not, and 373. pafs Ch, VII. Exempt'mis general. 179 pafs only a polTelTory right ; that the words " have " and hold'* are conflantly made ufe of to con- vey the largefl eftates, and do not apply merely to manurance ; that there could be no doubt of the exiftence of the privilege at the time of the diflb- lution, fufpcnded, indeed, in point of benefit, but continuing in point of right ; it being clear that the privilege was not deflroyed by the lands going out of the hands of the abbey ; but would refult to them together with the lands, and was, therefore, fubject to the provifion of the flatute (%). But where an abbot, having a privilege to be dlf- charged of titheg, quamdiu nmnibus propriis, in the time of Edward the fourth, made a gift in tail, and the abbey, was diifolved by flat. 31ft of Henry the eighth, it was clearly held that the donee of the iffue fhould not be difcharged, for the ftatute discharges none, but as the abbot was difcharged at the time of the dilTolutlon, fo that the party muft claim the eftate, and difcharge under the abbot fmce the ftatute ; and the confequence would have been the fame, if by a common recovery the reverfion had been barred before, or fubfequently to the ftatute (a). It is not, however, requlfite that the owner of lands formerly part of the polTellions of a greater abbey, fhould hold them in fee fimple, in order to their being difcharged from tithes. It is clear that a tenant in tail of fuch lands is difcharged, quaindiu propriis manibus excoluntur. Nor is it necelTary to fuch difcharge, that the owner fhould (2) See Gwill. 432. 248. Gwill. 431. (a) Farmer v. Shereaian, Hob. N 2 have I So Law of Tithes. Ch. VII. have an eftate of inheritance in fuch lands {b\ In a cafe {c) in which a party who claimed the exemption, as having the lands in his manurance, was only tenant for hfe under a fettlement, with a remainder in tai! to his daughter ; although it was infilled, in oppofition to his claim, that he had not that quantity of interefl: m him, which could fupport the privilege ; that to en- title the lands to the exemption, the perfon occupying them mud be the owner of the inheritance, and have the fame efuate in him which the monaflery had ; and the cafe of Wiliou v. Redman {d) was cited as an authority to fiiew that a tenant for life, or years, is not within the ftatute, and that, therefore, the privilege contended for could not attach ; yet the court decreed that the tenant for life was exempt, obferving, that in the cafe of Wiifon V. Redman the parties appear to have had a fee fimple, and therefore it aot being neceffary in that cafe to de- cide the point, it could not be confidered as of any authc- rity refpefting it : that it is impoflible that the lands can now be holden precifely in the fame manner as they were holden by the monaftery : that the monaflery had them, to them and their fucceffors, but a man now has them to him and his heirs. That as a fee fimple may be divided into portions, into different eflates for life, in tail, and remainder in fee ; where is the difnculty in faying that the tenants of each portion fhall have the benefit as they fucceed ? That there is no reafon why a tenant for life Ihould be excluded from the benefit, any more than a tenant in tail, who it is agreed is exempt, or why all the component parts of the "eflate fhould not be exempt as they feverally come into \b) Brown]. 44. Gwill. 15 1 6. {d) Hardr. 174. {c) Hett V. Meeds, Gwill. 1515. poflef- Ch. VII. Exemptions general. i^i poflellion ; but fuch exemption cannot be infifled on if the lands be in the hands of a lefiee for years, or even for life, under a common leafe ; for there is a material difference between a perfon who is merely a -lefiee for life, and one who is tenant for life, undeir a will or a grant ; the latter ha^; that very eftate in him which the monl?:^ themfelves had, for they were not the owners of the inheritance, they had the enjoyment only during their lives (/). If lands were difcharged of tithes in the hands of a prior, and the priory were veiled in the king by the flat, of the 3 lit of Henry the eighth, fo that fuch difcharge as exifled in the pr.'ory ought by law to continue ; al- though tithes fhall have been paid ever fince the pafling of the ftatute, yet it was held that even fuch conflant payment fhould not operate fo as to make the lands chargeable (^;. Alfo, where lands were exempted from tithes, as being parcel- of the demefne of an ancient monaflery which were enclofed by a6l of parliament, it was held that they were not rendered liable to tithes, by a claufe in the a^l, providing that the redtor, or impropriator of the parifh, or his lefTee, fhould receive all kinds of tithes from the new enclofure aft, notwithflanding any modus, or pretence of a modus, or com.pofition in any other parts of the parifh, or any exemption whatfoever, on the ground that fuch general words ought not to deftroy a (/) Argdo, Gwill 1516. Lady Denton, Gwill. 363. {g) Earl cf Clanricard v. N 3 clear i8i Law of Tithes^ Ch. VII. clear legal exemption, when the whole fcope of the claufes was to preferve merely fuch right as the im- propriator, or his leffee, had at the time of pafTmg the (.*) Pratt V. Hopkins. 3 Bro. P. C. 521. G\vilI.7C4c ( 1,^3 ) CHAPTER THE EIGHTH. Exemptions partial. I-JAVING difcufled the dodrine of general exemption from the payment of tithes, I proceed now to the confideration of fuch fpecies of exemption as are merely partial, which comprife, as I have before remarked, mo- dufes, and compofitions (^z). The proper definition of a modus decimandi, or in common language a modus, is a compofition for tithes which has exifted from time immemorial (Z>) ; or in other words, where by cuftom, or prefcription a particular mode of tithing has fubfifled diiferent from that authorifed by the general law. Before the reftridtive flatutes, the parfon, patron, and ordinary were capable of binding the revenues of the church. A modus, therefore, fhall be prefumed to have had its commencement from an inftru- ment figned by thofe parties, which has been loft by lapfe of time (^) ; but then there can be no colour of reafon for faying, that bccaufe fuch inftrument has been loft, the compofition eft^blifhed by it (hould be loft alfo (d). There are various defcriptions of modufes. A modus is fometimes a pecuniary compenfation, as two-pence an acre for the tithe of land : fometimes it is a compenfation in work and labour, as that the parfon iliall have only the twelfth cock of hay, and not the tenth, in confideration {a) Supr. 164. SAnftr. 638. {b) Per Holt C.J. Startup V. {d) Chapman v. Monfon^ z Podderidge, Gwill. 59 1. P. Wins. 573, (f) Old V, Clark, Gwill, H37' N 4 ©f 2 54 Law of Tithes. Ch. VIIL of the ov/ner*s making it for him : fometimes in lieu of a large quantity of crude or imperfect tithe, the parfon fhall have a lefs quantity when arrived to greater matu- rity, as a certain number of fowls in lieu of tithe eggs (). A modus, that all occupiers of farm houfes on the north fide of a certain lane, with the lands ufually occupied there- with, have timt3 out of mind paid three-pence at Michael- mas in each year for each cow, and all occupiers above the fame lane, or on the fouth fide thereof with the lands ufually occupied therewith, have time out of mind paid two-pence for each cow in iieu of tithe of milk in kind, has been declared to be uncertain and void ; for that the houfe may fall down and be uninhabited, and then no modus will be payable ; nor can any defcription be more uncertain than that of lands ufually enjoyed with the tenement, fince the lands let with the farm houfe may be often changed (/j). A modus, that the occupiers of Shortfiat-bog, called Tarfons-bounds, a wet fwampy un- cultivated piece of ground lying within the hamlet of Shortflat, have time out of mind annually cut and made into hay of the grafs growing thereon two fothers, and carried the fame at their own expence to the vicarage- houfe, in fatisfaftion for tithe-hay of the whole townfhip or hamlet, and that the fame hath been and ought to be accepted as fuch, and that a fothcr is a certain determi- nate quantity well-known in thofe parts, which was proved by the witnefles on both fides to be as much as can be drawn in a long wain by two oxen and two horfes, it was held, that this modus was void, on the ground that the fother, as defcribed by the witnelTes, was too uncertain ; that it made the quantity of hay depend on the condition of the foil, on the ftrength of the oxen, and the horfes, and on the caprice of the occupier, who might take the opportunity to carry it in wet weather, when the bog is (/)) Travis V Oxton, 3 Gwill. Bunb. 80. 1066. 108 1. 1082. See alfo [q) Carlton v. Brightwell, Turton v. Claylon, Gv/ill. 628. -Gwill. ^76. 2 P. Wms. 462. fcarcely I §8 ■ Law of Tithes, Ch. VIIL fcarcely pafiable (r). A modus of four (hillings payable at Eafler, in lieu of tithe-hay arifing on defendant's farm, has alfo been held void, it not being certain of what a farm confifts (f). A modus, that there was a meadow in the parifh called Parfon's-meadow, and that the plain- tiff and his predecelTors had time out of mind enjoyed the meadow, and alfo various beail-graifas in the parifh, in lieu of the tithes within the paiiih, was declared by the court not to be good by reafon of its uncertainty (?) : And in a cafe, in which the defendant in- filled on a modus that the occupiers of ancient tenements, within particular vills or townfliips defcribed within the parifh, with their own carriages and horfes, led and car- ried, and ought to lead and carry, a cart-load of peat and turf from Ulverfton-mofs to the parfonage-houfe for the ufe of the parfon and re£lor, his farmer or deputy on fuch a day, or within the fpace of every two years, as the parfon or reftor, or his farmer and deputy, fhould require the fame, in full difcharge of all the tithe of hemp, flax, and hay arifmg on thofe ancient tenements, was held to be a void modus, for a cart-load is too uncertain, it may be drawn by two, or fix horfes Qi). A modus for the payment of a certain fum of money, but if the lands are in the poffefTion of any other perfon to pay tithe in kind, or the money at the election of the parfon, held to be clearly bad, as being defultory (i;). A m.odus alleged to be payable at Eajier^ or otberwife, when the jheep jhall be fold, held to be of the fame defcription, and adjudged void {wy A modus of nine-pence a cow depaflured on the (r) Fenwick V. Lambc, Gvvill. 644. Bunb. 126. 869. Ambl. 16$. {v) Webber V. Taylor, Gwill^ (/) Bur%vell V. Coates, GwiU. 656. Sel. Caf. in Ch. 646. Bunb. 129. (w) Philips V. Symes, Gwill. (/) Birch V. Stone, Gwill. 649. 654. Bunb. 171. (a) Tully V. Kilner, Gwill. meadows. Ch. VII. Exemptions partial. 1S9 meadows, and fix-pence a cow depaftured on the uplands, in lieu of th? tithes of all cows, calves, and milk, was alfo overruled ; principally, becaufe the recompence is too vague, for that the parfon, in lieu of a certain right at common law, muft have a right equally certain by the prefcription ; and in this cafe, if a cow were depaftured partly on the uplands, and partly on the meadows, ha would not know which modus to demand, or how to dif- tinguilh them (x). On the other hand, if tenants from time immemorial have been ufed to pay a certain price for a tithe-lamb, fo that the cuftom is fully cftablifhed, the cuftom Ihall not be deftroyed by the parfon' s encroaching on more, or the tenant's payment of the tithe in kind (j). So a modus in lieu of tithe-milk to pay every tenth day's cheefe during the fpace of twenty weeks, the firfl cheefe to be paid on fifteen days after Holyrood-day, feems to have been confidered as valid, notwithftanding the objection of uncertainty, and yet it was not Hated that one whole day's milk fhould be ufed in making it (z). So fix Ihil- lings and eight-pence for every yard of land for tithes, is a good modus, although the lands be uncertain (,2). In like manner a modus of twelve pence for a fat bead:, bul- lock, or heifer, and fix-pence for every lean beaft, bul- lock, or heifer, was held good, notwithftanding it was objected, that there v/as an evident uncertainty, as it would be neceflary to determine in every inftance whether the animal was fat, or lean ; but the lord Chancellor ob- ferved, that this was a diftinttion perfedly well eftablifhed («) Torriano V. Legge, Gwill. (x) Wake v. Rufs, Gwill^ 909, and in not. and I 31. Rep. 1396. 1 Anftr. 295. and fee i 420. Roll. Abr 651. pi. 19. {y) Flemyng v. Tenants of {a) Mafon v. Hine, Gwill. pudlcy, Gwill. 135, Sav. z^. 9^1. ^ 3 among 19<^ Law of Tithes* Ch. VII!. among farmers, and he, therefore, faw no legal obje£lioii to the modus {b)» Certainty being thus efT^ntial to the validity of a modus, it is requifite In a bill in equity claiming to eftab- lifh fuch fubftitution for tithes to (late, it with reafonable particularity, and precifion. Thus, a modus to pay a penny for every ancient farm in a pariih, being a farm, and not a parochial modus, the boundaries and particular quantities of land of each farm, alledged to be covered by fuch a modus, mull be ftated : For it is eilential that the parfon Ihould be apprized to what lands he is to refort for payment of the modus (c). But even in a bill the court does not require a fcrupulou^ ftriclnefs in alledging a modus ; thus in a bill to ellablilli a modus for ancient orchards, it is not neceffary to fet out the quantity and boundaries of the orchards, for that is a very diftind cafe from the cafe of an ancient farm : the name of an orchard is in the nature of a defcription and the mere infpe6:ion will help to afcertaia it (d). So> although formerly it was held that in a bill to eilablilh a modus, a day for the payment of it mull be exprefsly alledged and proved {e) ; yet, according to modern ad- judications, that is no longer neceffary, and it is now confidered as too ftrid to require the proof of a parti- cular day ; that to ftate that the modus is payable at or about a particular day is fufficient CfJ ; and the court will ellablifh a modus, even though proved to be payable (3) Bifhopv. Chichefter, Gwill. 631. Bunb. 105. Goodwia t. 1316. 1320. Wortiey, Gwill. 715. See alfo (f ) Scott V. AUgood, Gwill. Penrice v. Dugard, Gwiil. C^z. I3'^9- (/) Richards vl Evans, GwiH. {d) Ibid. 1371. 802. X Vef. 30. {e) Gjcdard v. Keble, Gwillt on Ch. VIIT. Exemptions partial, 191 on a day diiTerent from that alledged in the bill (^)« So on a bill to eflabliih a modus, it was objected, that the modi^s was not properly fet out, being pleaded as a farm modus, and the farm not ftated to be ancient, and to have confifted immemorially of the fame parcels as at that time, and it was urged that the defendant was not bound to extraft the plaintiff*s meaning by inferences ; but the court were of opinion, that as the bill fet out the farm with all its parcels, the number of acres, and the abuttals of each clofe, and averred that the modus had been imme- morially paid by the farm, its antiquity was a neceifary part of the plaintiff's cafe; and that fuch allegation could be fupported only by proving that the farm was ancient, and had immemorially continued the fame ; that no precife words in fuch cafe are neceflary if the meaning be clear (/;). Nor is it neceflary either in law or equity, in lay- ing a modus to ufe that exprefs term : xlccordingly, a bill, to edablifh a cuftomary payment of feven pounds per annum in lieu and fatisfadion of tithes, was held to con- tain a fufficient allegation of a modus : Lord HardwickeC. in fuch cafe obferving, that the material words are, fo much money paid in lieu, and fatisfadion of tithes (/). But in an anfwer infifting on a modus by way of de- fence flill greater latitude is admiffible, on this diflinftion : that if a bill be filed by a landholder to eftabliOi a modus, it is reafonable, that he fhould be reftricted to an accurate ftatement of his claim, for he is bound to know it, before he aflerts it in a court of juftice j but in the cafe of an anfwer, a tenant is compelled within a limited time to anfwer, and ftate his defence, and if he give fuch a flate- {g) Anderton V. Davies, Gwill. Gvvill. 1434. 1268. {i) Richards V, Evans, Gwill. (/;) Lord Stawell V. Atkins, 802. i Vef. 30. 5 ment ^9^ ^^^ of Tithes, Ch. VIII. merit as will apprize the plaintilT of the general nature of the cafe to be made againft him, it fhall be fufiicient {k). Thus, where the defendant infifted on a mcdus of four- pence for every acre of grafs cut and made into hay in Heu of the tithe of hay, to 'which it was objected, that it was illegal, inafmuch as it was not ftated to be fo in pro- portion for a greater or lefc quantity than an acre ; the obje6lion was overruled, and the modus declared to be fufficiently fet forth. So in the fame caufe, the defendant flated, that there were feveral lands the pariili, which were exempt from tithes, and that there were other lands of which the reclor was entitled only to a moietv of the tithes, and the above modus in lieu of tithe-hay was laid for every acre of grafs, except on the lands which were tithe-free, and thofe for v/hich tithes were paid in moieties : an objedion was taken to the legality of the modus, becaufe the defendant had not particularly fet out the lands, which he flated to be exempt, or for which tithes were due in moieties; but this objeftion was alfo over- ruled (/). So where the defendants in their anfwer {q\ up an immem.orial payment due and payable by the owners or occupiers of lands, by way of modus, or compofition for the fmall tithes, it was contended that the modus was not fet forth with fufficient certainty ; it being pleaded as a modus, or comxpofition, whereas the claim of exemption, being againft common right, mull be accurately defined : But the court, recognifmg the diflindion, I have juft alluded to, held, that if this had been a bill to eflablifh the modus, the objedion might have prevailed, but that in an anfwer, fuch flridlnefs is not requifite ; if it appear that there is a good defence, that is fufficient, and there- {h) Baker v. Athell, Gwill. Brooke, Gwill. 141 2. Anftr. 397, 1423. 2 Anftr. 491. See alfo (/) Gills v. Horrex, Gwill. Atkyns v. Lord Willoughby de 86r. 14 fore Ch. Vlii. Exempiions partiaK 193 fore, difallowed the objedion {jii). So where tc a bill for vicarial tithes the defendant in his anfwer fet up a modus for an eftate, of which he was owner, called H. without mentioning its extent, but which in the bill was flated to confifl of two hundred acres, the manner of laying the modus was objected to for uncertainty ; but the lord chief baron obferved, that the objeft in dating the number of acres was to afcertain the land ; that if it be afcertained by other means, the end is anfwered, and exprefled his doubt of the validity of the objedlion ; and although the other barons thought that the name did not give fufficient certainty, and that it was not fupplied by the bill ; yet the obje£tion feems to have been confidered as very critical, and the court permitted the anfwer to be amended (?z). Again, in a cafe, in which the defendant infilled on a modus without averring it to be immemorial, acknowledging that he did not know how long it had fubfifted, and alfo omitting to ftate at what time it was payable, the court held the anfwer to be neverthelefs fufficient (0). The indulgence of the court to defendants in cafes of this nature, is flili more ftrongly evinced in the following inftance : To a bill for tithes of apples, except ancient orchards, in refped to which the bill admitted a modus, the anfwer, which was very confufed and indiflinft, fet out the copy of a paper-writing purporting to be an account of a modus in the parilh, which the defendant ftated he believed to be true, and added thefe words, *' Cyder ^two-pence per hogfliead.'' It v/as infifled on (?») Atkyns V. Lord Willough- 1124. by de Brooke, Gwill. 1412. (0) Baker v. Athill, Gwill, Anftr. 397. 1423. Anflr. 491. («) Vyfe V. Duntze, GwilJ. O the 194 Law of Tithes, Ch, VIIL the part of the plainifff, that it did not appear what the modus '^'as, which even in an anfwer, ought to be fet but with fome degree of certainty, in order that the plaintiff may know on what the defendant rehes, and how to apply his evidence ; but Sir Thomas Clarke M. R. held, that if it appear, that a pecuniary payment was made for any fpecies of tithe, the court will help the imperfeftion in the manner of fetting out the modus, and put a'con- flruction on the words. He accordingly directed an iifue to try whether a modus of tv/o -pence per hogfhead of cyder was payable throughout the parifh, in lieu and fatisfaciion of tithes in kind for the apples which were ufed in making fuch cyder (/>). Aiid with the fame liberality fuperfluous words ufed in an anfwer flating a modus, which would make it indefinite, have been confidered by the court as expunged. Thus where a modus of three-pence per head for every fheep brought into the parifii a fliort time before the 13th of February, was objefted to as too vague : It was held that thefe v/ords fliould be rejected as unnecelfary (^). Nor fhall even a variation of the v.itnelTes in thedefcription of the land vitiate a modus, provided they agree in pointing out the particular land, which is covered by it (r). But ftill this latitude permitted to anfwers is not wholly unlimited, for where the defendant infills on a parochial modus, he mufl ftate in his anfwer to whom it is payable, tind what particular lands in his occupation are covered by it (j). So where in an anfwer a farm modus v/as laid for all tithes, except thofe of corn and grain, (/) Mallock V. Browfe, Gwill. (r) Markham v. Huxley, 905. Ambl. 423. Gwill. 1499. {q) Ellis V. Saul, Gwill 1326. (j-) Coggan v. Lord Lonfdale, 2335. Anilr. 332. Gwiil. 1404. 8 and Gh. Vm, Exemptions parttaL 195 and the tithes due to the vicar, it was held not to be fuf- ficiently certain for want of diftinguifhing what tithes the modus covered (/). So where the defendants in their anfwer admitted the reftor to be entitled to tithes in kind, except in the townfhip of Ri{by, which they ftated to confifl of nine hundred and thirty acres, or there- abouts, of which they alleged, i, certain parts to be demefne of the manor or lordfliip of Rifby, and to con- tain one hundred and fifty-fix acres, or thereabouts ; 2, other parts to be ancient enclofures, and to contain four hundred and thirty-two acres, or thereabouts ; and 3, the remainder to be three hundred and forty-two acres, or thereabouts, and infifted on a modus, firfl for the demefne lands three pounds two fhilllings, for the ancient enclofures one pound ten fliillings and threepenc?, for all the land in Rifby accuflomed to pay tithe in Idnd twelve pounds, which amounting together to fixteen pounds ten fiiiliings had been immemorially paid, after allowing the land-tax amounting fometimes to one pound, and fometimes to one pound four fliillings, as a modus in lieu of all tithe within thofe feveral lands : The defendants not having in their' anfwer afcertained the three different fpecies of land, the court held that it was impofiible to dire£t iffues on any of thefe modufes, though the court at the fame time expreffed a wifh to relieve the defendants from the difHculty of leaving fubjoined the third to the two others; butobferved, that if a decree were pronounced only for an account cf the third defcription, when the reclor came for his tithes, his claim might be fruflrated by the occupiers infifling, that thefe were demefne or old enclofures ; an account v/as, there- fore decreed of all the tithes demanded by the bill wdth cofls ; but without prejudice to any future claim to the bene- fit of the modufes defeftively fet forth in the anfwer (u). In (/) Nafh V. Thorn, Gvvill. (v) Croft V. Aver, Gwill 1324. ^Z^S- 2 like jgG Law of Tithcu Ch. VIIL r like manner to a bill for feveral fpecies of tithes, and parti- cularly for agiftment, two of the defendants in their joint anfwer fet up a modus to cover the agiftment tithes, one of whom ftated that he held as owner certain lands within that townfhip of T., confiding of twenty acres or there- abouts, and alfo of feven bead gates, or cattle gates, in certain open paftures there called A. and B., together with common of pafture on the moors or commons with- in the townfhip, which farm, lands, or grounds were part of an ancient eftate within that townfliip, which theretofore belonged to J. C. ; that the other part thereof confided of eleven acres of meadow land, or thereabouts, and three bead gates, or cattle gates, and th^t the lad men- tioned premifes alfo belonged to the defendant, but during the faid years w^re let out to tenants. The anfwer then fet forth, that the defendant held as owner certain other lands there, confiding of twenty acres, or thereabouts, which were parcel of an ancient edate within the townfhip, which theretofore, belonged to W. A., the other part of which confided of twenty acres, or there- abouts. The defcription of the lands held by the other defendant was fimilar, being parcel of another ancient edate. They then fet forth certain modufes payable for thofe ancient edates refpe&ively. There was evidence to fhew the extent and boundaries of the feveral ancient edates. On its being objected on the part of the plain- tiff, that the defcription of the places covered by the modus was not fufficiently certain, the court held, that although it be true, that in an anfwer confiderable indul- gence be fliewn in dating the defence, and the evidence , here made the cafe more intelligible, yet that the defen- dant mud not give a blind defcription, which the plain- tiff cannot meet ; that the defendants had not defined with reafonable precifion the ancient edates, with refpect to which tjje feveral modufes were claimed 5 that they i^ had CIi. VIII. Exemptions partlaL igy had defcribcd the clofes held by them no othenvlfe than as lands of certain extent : They had' neither named the parcels, nor fpecihed the boundaries ; that the defcription of tlie ancient farms, of which thefe lands were parcels,, was equally indefinite ; they are dated merely to lie in fome part of the townfhip of T. ; but there is no clue to difcover their particular locality ; whereas there ought to have been fuch a reafonable precifion in their defcrip- tion as would enable a fheriff to give polTeffion of the clofes ; but this defcription is clearly infufficient for that purpofe. No ilTue could be direcled upon this defence. The iffue is in general in the words, or nearly in the words of the anfwer ; but here there is no defcription of the place covered by the modus : there is nothing, therefore, to try by an iiTue. Where there is an inaccuracy in the anfwer in defcribing the defence, an indorfement on the fojlea may remedy the error : here the defcription is totally wanting, an indorfement^ therefore, could not aiTifl the cafe {y). II. A modus mufl in its origin have been beneficial to the parfoU;, and not for the emolument merely of third perfons. Thus a modus to find flraw for the body of the church is no valid modus in difcharge of tithes, for the parfon is not bound to find fuch flraw, aiid confequently he de- rives no benefit from it {yo). But if it had been alleged that the flraw was given to him, and he bellowed it on the body of the church ; or that he had a feat in the body of the church, the adjudication would have been difFe- (z;) Wood V. Wravj Gwill.. (w) Scory v. Baber, Gwill. 1457- Anilr, 838, ,, 163. O 3 rent. rpS Law of Tithes, Ch. VIII. rent (.v). So a modus to repair the church in difcharge of tithes is not good, becaufe that is an advantage to the parii^i only ; but to repair the chancel is a valid modus, becaufe that is an advantage to the parfon (jy). So where a pai"ty prefcribed, that he ufed to pay the parilli-clerk his wages in fatisfaclion of tithe-hay, this was held to be no difcharge z) ; and upon the fame principle, if a cuflom b*e infifled on in the fpiritual court in fatisfaction of tithes, which gives no recompence to the parfon, a prohibition fhall not be granted {a). III. A modus mull be different from the article com- pounded for. It is abfurd to fuppofe, that a part could ever be accepted as a fatisfaclion for the whole ; therefore one load of hay in lieu of all tithe-hay, is no valid modus, for no parfon would bona fide confent to receive a com- pofition for lefs than is due of the fame fpecies of tithe, and therefore the law prefumes it impofTible for fuch compo- fition to have been entered into (Ji). In like manner a certam number of Iheaves of corn in fatisfaclion of ail tithes of corn, has been determined to be a void prefcrip- tion (c). So, in a cafe vvhere the defendant infilled, that a fmall meadow had always been enjoyed by the redor in lieu of the tithe of hay of another meadov/ of a much larger ex- tent, and it appeared that the firft meadow produced every year on an average about four loads of hay, and the other about one hundred and fifty loads, the court difallov/ed the modus, obferving that it could not be prefumed, that any perfon in his fenfes would confent to take four loads inftead (.v) Scory V. Baber, Gvvill. 163. 285. Portingen v. Johnfon, Gwnll. (j) I Roll. Abr. 649. pi. 50. 286. (z) Sarell v. Wood. Gwill. {b) Lev. 179. 157. Cro. Eliz 71. & Gwill. 163. {c) Sheppard v. Penrofc,Ler. Deg. p. 2 c. 16. * 175. (a) V. BarncFj GwiU, of Ch. VIII. , Exemptions parttal, ^ 199 of fifteen (f/). So, where a modus was alleged that tithe- milk ought to be paid by every tenth evening and morn- ing's meal in kind, from Hoe Monday to the fecond day of November, to commence upon the evening of Hoe Monday, (that is the Monday fortnight after Eafter-day) and the morning following to be taken by the re£i:or at the place of milkiiig, and no tithe-milk to be paid for the reiidue of the year ; fuch alleged modus was held to be void upon the face of it, being only payment of part for the whole (^). But three eggs for every cock and drake payable on Wednefday before Eafter, and for every hen and duck refpe). But to a bill for tithes in kind of certain farms withift the parifh of K. the defendants as to thofe farms fet up the following modufes ; as to two of the farms, a modua of ten fleeces of wool, and two and a half lambs, or one (/) Gryfman V. Lewes, Gwill. Carleton v. Brightwell, 2 P.Wms. 165. Cro. Eliz. 446. 462. {m) Sir Charles Morrlfon's {p) Watf. C. L. 408. See cafe, tlid. Chapman v. Smith, Gwill. 847. («) Torrlano v. Legge, GwilL 2 Vef. 506. Brinklow v. Ed- 909. , munds, Gwill. 712. Sup. 146. {0) Gibf. 675. Cro. Eliz. 139, fhilling 203 La^oj of Tithes, Ch. Vin fhilling and fixpence in money in lieu of the half lamb, in full difcharge of all tithes whatfoever ; as to two other farms, a modus of fix fleeces of wool, and three lambs for all fmall tithes ; and as to a fifth farm, a modus of eight fleeces of wool, and four fhillings in money in difcharge of all tithes whatfoever for that farm. As to the firft, and fecond modiifes, Price and Bury barons were of opinion they were bad. Ward chief baron, and Smith baron, on the contrary held, that they were Valid, for that they were not in difcharge of wool and lamb only, and that any thing of a tithable nature may be given in difcharge of tithes, as well as money ; that the dif- tindlion is, where it is in difcharge of a fpecies of tithes, and where of the land ; that it is clear, that the payment of tithe of one kind could not be a difcharge in refped to the tithe of another kind ; but they obferved, that this was not a payment of tithe, becaufe it was to be paid in all events, whether there were fheep, or not. In refpeQ: to the laft modus, it was holden good by the chief baron and two of the barons, the third diiTentient {q). Laflly, The modus muil not be too large, or, as it is flyled, a rank modus ; for in thefe inflances of cuflom^ or preicription, the law fuppofes, as I have already in- timated, an original real conipofition to have been regu- larly entered into ; but having been lofl by lipfe of time, immemorial ufage is admitted as evidence of its having formerly exifled, and that from fuch compofition fuch ufage was derived. Now the commencement of time of memory, as above flated, hath been long fixed from the time of the expedition of king Richard the firfl to t^e holy land. Any cuftom may, therefore, be deftroyed by proof of its non-cxiftence in any part of the long pe- riod from that time to the prefent, confequently, as this (j) Archbiftiop of York v. Duke of Newcallle, GwiU. 583. real Ch. VIII. Exemptions partial, 203 real compofition is fuppofed to be a fair and reafonable contract, amounting to the full value of the tithes at the time of making it, if the modus infifted on be fo rank, and large as palpably to exceed the value of the tithes as it exift^'d at the time of Richard the firll, it deftroys it- felf ; for as it would be difallowed on dired proof of its non-exiftence, at any time fubfequent to that aera, it is of neceffity avoided by fuch internal evidence of a much later origin (r). The ranknefs, therefore, of a modus depends on the hiftory of money, and involves in it a queflion of fad, and not of law ; a queflion neverthelefs, which hath fre- quently been decided by a court of equity without the intervention of a jurj^ : for if a modus be palpably and no- torioufly of that defcriprion, and bears flrong intrinfic evidence againil ihe poffibility of its immemorial exift- ence (i), it were nugatory, and indeed oppreffive for the court to direft an iffue to try a fact, of which it is per- fectly fatisfied (j). Thus in a cafe, in which the d^^fendants infilled on feveral modufes for all fmall tithes arifing out of their refpeftive farms, it appearing upon the face of their anfwer, that their fmall tithes in kmd, in the year demanded by the bill, did not amount to more in that year, than the alleged modufes, they were at the heariiK'- fet afide («). So Lord Hardv,^icke C. on a fimilar occafion declared that he iliould be aihamed to fend a modus of thirty (r) 2 El. Com. 30, 31. See 1 192. vid. Afliby v. Power, G will Gwill. 807, 808. 1238. O'Connor v. Cook, 6Vef. (j) Pike V. Dowling, Gwill. jun. 665. . 1166. 2 Bl. Rep. 1257 {u) Lloyd V. Small, Gwill. (.') Biihopv.Chichetter, Gwill. 619. 3 Burn Ecc. 1, 425, J320. Bedford v. SambelJ, Gwill. 426. 1058. T wells V. Wdby, Qwill, pounds 504 ^'^ ^f Tithes. Ch. VIII. pounds per annum to be tried by a jury, where the real value of the tithes was not above fixty pounds, and decreed for the plaintiff, the parfon, with cofts (w). But the doctrine that the court Is bound to take cognl- fance of the ranlcnefs of a modus, and ought in the firll inftance to overrule it, has prevailed principally with re- ference to the value of particular things, for which the modus has been fet up ; as where a fpecific fum of money is payable for a fheep, or lamb, or any particular fpecies of produce, the prefent value of which may be eafily af- certained \ fuch modufes are diftinguifhable from thofe, the validity of which depends on the value of lands, a more complicated confideration varying by different means, by the fludluations of trafiic, and commerce, by improve- ments in the modes of cultivating lands, by their accidental rife, or depreciation, and by a variety of other circum- ftances, which render fuch modufes more uncertain, and confequently more fit fubjeflis for the invefligation of a jury (x). So in the cafe of a farm modus, Macdonald, C. B. recognifed the diflin&ion between a farm payment, and one for a particular fpecies of produce, and his lordfhip ob- ferved that in the former, many reafons may have prevented tithes from being agreed for at their proper price. The owner may have meant a bounty to the clergyman, or he may have wifhed to pay for an exemption from tithes for the fake of improvements. That it is, moreover^, fcarccly poffible to afcertain the comparative value of the land, or of the oroduce in form^er times, and the court fliould not be nice in judging of the value, or of the goodnefs of the bargain, where by any probable circumflances the modus may have been a real agreement between the parties be- (w) Moore V. Bcckfordj cited {x) Chapman v. Smith, Gwill; 2 15). Kep. J257. 847. 2 Vef= 506, fore Ch. VIII. Exemptions partial 205 fore time of memory ; more efpeclally oitght the court to be extremely cautious in deciding fuch a queftion without the intervention of a jury, if the leaf! doubt arife as to the fad of ranknefs j under thefe circumftances, the court would not decree for the plaintiff againft the modus ; but held that, if the re^^or defired an ilTue, undoubtedly he mufl: have it (j)» And in a recent cafe, where a modus for certain lands was infifted on, amounting to one fliilling an acre, and it was objeded to on the ground of its ranknefs, which it was urged was fo evident that if the court fent it to a jury, the principle would be univerlally eftabliflied, that the court can in no cafe decide without an iffue: it was fur- ther argued, that from ads of parliament, and many other documents of which the courts can take notice judicially, they can judge of the ranknefs, and where it is moft clearly apparent, may determine upon it ; that in the fourteenth century, the flatute of Edward III., and other- ftatutes fix the average price of the quarter of wheat at fix fhillings and eight-pence; but that carrying it three hundred years farther back it will be found, that the quarter of wheat was at two fhillings only, which would make the modus in queftion much exceed the value of the land ; yet, lord Eldon, C. directed an iffue, obferv- ing, that though imdoubtedly, according to the con- flitution of the court, it might take to itfelf the decifioa of every fad put in iffue upon the record, yet as to im- memorial payment, if any reafonable doubt has been raifed upon it in the evidence, courts have of late judged it more difcreet to fend the queftion of fad to a jury, and will not fuppofe that there is any prejudice in a tribunal {y) Atkyns v. Lord Wil- P. C. 214. See alfo O'Connor loughby de, Brooke, Gwill. 141 2. v. Cook, 6 Vef. jun, 66i, See alfo Pole v. Gardiner, i Bro, appointed . 2o6 Law of Tithes. Ch. VilL appointed according to the conftitutlon of the country to try the fa6l. Ranknefs is merely evidence againfl the payment having been immemorial, and forms no legal ob- jection -to the modus. If it can be inferred that iL has exifted, the ineq^uality of the payment cannot impeach it ; and therefore the judges in the cafe in Blackllone certi- fied, that two fhillings and fixpence was not an illegal payment for a lamb. That there is an evident diftinc- tion in refped to ranknefs between a modus for tithe of particular things, and a farm modus j for that it is perfect- ly eafy, in almofl every period of our hiftory, to afcertain what, for inllance, a lamb was worth, and therefore to conjecture upon what, in any place, parties would agree. But what is the value of land in a particular parifh, and what therefore it is proper to give per acre, Is a very com- plicated confideration. That though the court cannot but entertain a ftrong opinion, that one fhilling an acre was, on the principle of ranknefs, in all probability a mon- flrous payment, yet ftill the judges have thought, that even fiich payments ought to go to trial, and verdicts under which, in many cafes, even more than one Ih illng an acre has been claimed, have been confirmed. That the modus iti queftion is nothing more than one fhilling an acre for all tithes of the farm., in whatever form culti- vated, or occupied, not for agiflment, milk, lamb, or any other particular tithe. Tliat there was no evidence before the court fhewing, that this modus may not be proved to be as reafonable a commutation for tithes, even put fo - diftrlbutively, and not as a farm modus, as in fome of thofe cafes, where one fliilling an acre has been given, even for tithe of hay alone (z). (s) O'Connor V, Cook. 6 Vef. . new trial, on the grounds of mif- jua. 665. & 8 Vef. jun. 535. A direftion of the judge, and new verdift was found for the plaintiff evidence fince difcovered. A new in theiffuc, the defendant in equi- trial was granted, on which there ty* eftabHfhing the modus ; and a was again a verdift for the plaintiff, motion was afterwards made for a See alfo 9 Vef. jun. i68. To Ch. VIII. Exempt'mis partial. 207 To illuflrate this fpecies of objedlon to a modus, it Vvill be proper to fpecify various inflanccs, in which it hath been allowed to prevail, or has been overruled. A modus of five fhillings an acre for wheat and rye ; four fhillings an acre for fummer corn ; three fliillings an acre for meadow ; twenty-four fhillings a year payable in lieu of the tithes of a whole farm ; five fhillings an acre for wheat.; two fhillings and fixpence for other grain ; two ihilfings and fixpence for meadows mowed ; one fhillingand fourpence for upland grafs grounds ; and two fhillings and fixpence for every farrow of pigs (<2) ; a modus of two fhillings an acre, in Leu of the tithe of all grain reaped from the enclofed arable land in a hamlet ; and one fhilling and fixpence an acre, on the common field arable lands (/?) ; a modus of four pounds ten fhillings a year for a farm of the yearly value of thirty pounds (^) ; one fliilling an acre for hay (); a modus of two fliillings and fixpence an acre for corn lands (/) j four fhillings for every ten lambs fattened ; two fliillings for every five ; fourpence a piece for all 7mder five, and for all abo-ve five, and under ten, fourpence a piece on the fhearing-day ; and threepence a piece for all other lambs bred in the parifh in lieu of the tithes of {a) Torriano v. Legge Gwill, (^) Bate v. Hodges, Gwili. 909, 910. notis. & 1 Bl. Rep. 645. Bunb. 125. 420. (e) Hulfe V. Munk, Gwill (i) Gale V. Carpenter, Gwill. 960. 545. (/) Bifhop v.Chichefter, GwiU, (c) Kennedy v. Goodwin, 1323. Gwill. 708. Bunb. 301. fuch 2o3 Laiv of Tithes\ Ch» VIlL fuch Iambs (^) ; twelve pence for a milch -cow, and fix- pence for every calf killed and fold (^) ; threepence foi' every Iamb yeaned within the parifh (/j) have been all adjudged to be rank, and confequently void. So a modus of forty-eight pounds a year, in lieu of all tithes of a manor worth only eighty pounds a year, was held rank, fmce according to the natural improvement of land, from the time of king Henry the eighth, it ought to have beei> ten times as much, on account of money fmking in its value, and lands rifing in theirs (/}. The principle of thefe decifions is this : that the value of money being much higher at the time when all modufes are prefumed to have commenced, than it is at prefent, a modus approaching to the value of the tithes at this day, muft at that period have greatly exceeded it ; and it were abfurd to fuppofe, that the parifhioners would at any time liave agreed to a fubflitution for thefe articles, fo much more valuable than the articles themfclves» On the other hand, a modus that every occupier oF lands within the parifh having a Iamb yeaned within the fame, ought to pay to the re£lor, or his leffee, for every lamb fo yeaned, the fum of threepence and no more, in fatisfadion of the tithe of every fuch lamb, and that the fame was payable yearly onSt.Mark's-day, orfo foon after as demanded, was objetled to, as a rank modus, on the ground, that in ancient times, arid long within the time of legal memory the price of cattle, and other commodities^ is) Wood V. Harrifon, Gvvill. 631. Bunb. 105. & vid. Bifhop 970. Franklyn v The Mafter and v. Chichefter, Gwill. 1320. Brethren of St. Crofs, Gvvill. {i) Ekin v. Pigot, Gwill. 783. 629. Bunb. 78. 3 Atk. 298. {h) Goddard V. Keble, GwilL was Ch. VIII. ExerJiplions partial. 209 was To much lower than at prefent, that a lamb v/hich now may be worth two fliilllngs and fixpence, two hundred years ago, would not have been worth more than fixpence, or in fuch proportion, that the fum of threepence infifled on to have been anciently and imme- morially paid in lieu of every Iamb, which fets the price of every lamb at two (hillings and fixpence, is fo near the value of fuch tithes, even at this day, that it proved itfelf to be a modern compofition only ; the court of exchequer, neverthelefs, v/as of opinion, that the objection arifmg upon a matter of faft was very proper to be confidered by a jury, who would enquire into the value of lam.bs in the place where this controverfy arole : and the court pronounced a decree to that effecl, which on an appeal was affirmed by the houfe of lords (^k). So a modus of nine-pence an acre of marfh land, except when fown with corn, or planted with hops, was fent by the lord Chancellor to be tried at law ( / ). In refpe^l to fuch modufes as have been adjudged valid, they are of the following defcription : Sixpence for every cow depaflured within the parifli, payable at Michaelmas, in lieu of tithes of milk and calves ; twopence for every lamb yeaned within the parilh, in. lieu of tithe thereof ; one penny for every fleece of wool fhorn from every Iheep fed and depaflured in fuch parifh, in lieu of the tithe of fuch wool ; twopence for every colt foaled ; fourpence for every garden, in heu of garden fluff; fourpence for potatoes tilled in a ridge in the field for family ufe, and not for fale ; pigs, and geefe in kind, except under ten, and then one- penny a pig, and one penny halfpenny a goofe (m) j {k) Webb V. Giffard, GwiU. 847. 2 Vef. 506. 708. and4 Bro. P. C. 212. [m) Bofcawen r. Roberts, (/) Chapman y. Smith, Gwill. Gwill. 946. P a modus 2 1 o Law of Tithes, Ch. VIII. a modus of one halfpenny for the wool of each iheep dying («) ; fourpenca a month for the tithe of wool of each fl'ieep fhorn in the parifh (o) ; a modus of a garden- penny yearly, for all vegetables and fruit, except apples and pears (/>) ; a modus of a garden penny for the pro- duce of the garden generally (y) ; twopence for evci-y new milch cow, and on^ penny halfpenny for every old milch C0V7 fed in the common fields, in lieu of the tithe milk of the fame(r) ; one penny for every lamb, eightpence afcore for iheep wintered in other parities in lieu of tithe of wool (j) ; one penny for all tithe-wood cut on the common and burnt in [he family (r); one penny halfpenny for every calf yeaned (z^); a modus of eightpence for every cow, and fourpence for every heifer, in lieu of the tithe of milk and calves of fuch cow and heifer (y) ; three fhiUings and fourpence payable for every fcore of fheep fhorn out of the parifh, and fo proportionally for a lefs number than tv/enty, or for a lefs time than a year, for the wool and lamb of fuch fheep (it-); a modus of one fhiiling for each day's math (.v) ; a modus of nine carfs of log- wood, or an hogfhead of cyder (f) in lieu of all tithes (%) ; twelve-pence an acre for low meadows, and eightpence an acre for high meadows in lieu of tithe hay («) j a modus of one penny at Eafler annu- («) Brinklow v. Edmunds, («) Thompfon v. Holt, GwiU Gwill 711. Bunb. 307. 671. (0) Ibid, (^') Ibid. {/)) Thompfon V. Holt, Gwill. (w) Ibid. 671. (x) Markham v. Huxley, {q) Philips V. Synies, Gwill. Gwill. 1499. 654. Bunb. 171. (j') Woclfcrlton V. Muinwaviiig (r) Thompfon V. Holt, Gwill. Gwill. 679. Eunb. 279. 671. (x) Ibid. (j) Ibid. (^/) Pole V. Cardiser, GwilU (/) Ibid. 711. ^01. uily Ch. Vin. EKeiv.pt'ions partial, 1 1 1 ally, in lieu of the tithe hay growing on the premifes {ji) ; a modus of twenty-fix Oiillings and eightpence for hay finall tithes and Eafter offerings ( ^) ; a modus of eight pounds for a farm of eighty pounds a year {d) \ one penny per head for fheep brought into the parifli after Candlemas, and dipt hi the pari(h in lieu of tithe-wool (t-) ; threepence per head for flieep brought into the pariHi before Candle- mas, and carried out before iliearing time,as an average pay- ment for the wool carried out (/"), and fuch payment may be applicable to the wool tithe, although not then due {£) ; a modus to pay a hearth-penny for all combuftible v/ocd (Ji) ; a modus fcr a lord of a manor to pay fix pounds iii fatisfaftion cf all tithes in the manor, and in confider- ation cf fuch payment to take the tenth fhock, &c(/); a modus for perfons occupying lands in the pariili, but refiding out of it, to pay fourpence an acre for the tithe of hay, and the herbage of paflure lands occupied by them in the parilh (;(•). Such is the general nature of a modus ; and fuch are the properties which are neceff.iry to conflitute its validity. But notwithftanding thefe requiiites are indifpenfible, and the rights of the church fiiall not be impaired by any cuftomary payments, unlefs fandioned by the rules of law (/), a modus being prefumed to be a compofition (^) Finch V, Mafters, GvrilL (/) Green v. Han, Gu-ill. 215. 652. Bunb. 161. Cro. El. 702. (r) Ibid. (/) Pigot v. Heron, GwilL [d) Edge V. Oglander, Gvvill. 2CO. 2 Moore, 483. 536 Bunb. 301. (/■) Chapman V. Bifhop of Lin- (c-) Ellis V. Sau', G.vill. 1326. ddln, Gvvil'. 67. . Moi. Rep. 266. 1334. I Anftr. R-p. 332, 279. (/■) Ibic', (/) 2 Vef. 5c6. U) Ibid. P 2 in J 12 Laiv of Tithes. Ch. Vlil in v/riting with th^ confent of the parfon, patron, and ordinary before time of memory, decayed indeed, or lofl by accident, yet having grown into a prefcription fliali be allowed, though it may not, in every refpeft, appear a wife provifion for th-e intere-fts of the parties : It fhall not be narrowly and ftriftly canvafTed, the courts on principles of pubHc pclic^^'^ being averfe from intrenching upon fuch ancieftt ufages for flight reafons : purchafers buy lands upon the faith of fuch modufes, and are induced to give a greater or lefs price for the lands, according to the nature and value of the modus, by whicli they are covered. The vendor proceeds upon the fame confi- dence ; the parfon accepts his living with the expectation of thefe payments ; and in contemplation of them the lay impropriator purchafes : it would, therefore, be unrea- fonable to overturn modufes upon trivial grounds, and by thefe means to deceive purchafers, who bought the land v/ith a view of paying no more than the modus, and to give the lay impropriator an undue advantage by fufTering Jijm to take the tithes in fpecie, for which he never fli- puIatGQ (r/z) : Thus, although ordinarily the occupier of lands be aiifwerable for the payment, yet a modus payable by the owner of the- lands is valid : As where to fuch a modus it was objected, that it was unrea(bnable,inafmuch as the parfon was under the neceffity of feeking for the parly to pay him his modus, inflead of claiming from the tenant either tlie miodus, or tithes in Idnd ; yet the court held tliat this miight be a fair agreement at the time of the ccmmencen^nt before memory, when the ov/nerfhip of land was not fubjeft to fuch fluctuation as it is at prefent, and that die parfon might have thought it m.ore advan- tageous to have the landlord a fecurity rather than a tenant («) KarJcaftle v, Sclater, Gwill. 788. 10 in CIi. VIII. Exemptions partial, ^213 in doubtful clrcumltances, aiid that the court ought not alccly to weigh the validity of that judgment («). So ;i mo- dus that the occupiers of lands, and tenements within cer- tain vills within the parifh of C. not being parcel of the de- mefnes or granges of the monaftery of C, fliall pay feveral fums ; that is, fo much in certain for each vill in lieu and fatisfaction of tithes of hay growing within the villsj it waii infifted, that this modusw^as void upon the faceof it ; for that it was unreafonable that any one occu^»ier (liould be liable for all the tithes of all the reft, and that it alfo was un- certain who was the perfon to pay, for there might be feveral occupiers in one year : but the court decided this to be a good modus, fnice it muft be prefumed, that at the •time of entering into this agreement, one perfon wa$ owner of a whole vill, and that confcquently by the t>ranching it out afterwards, and dividing it into feveral, ^he parties could not deftroy that modus, which was origi- jially and in its comxmencement good. Nor does it feem neceifar J, that the parfon fhould make every one of the occupiers a party to a fuit for this modus,, becaufe as it affects ail the lands, each occupier is liable for the whole, and they are entitled to a contribution among them- felves (0). So where there was a wafte between two vills, N. S. and S. S., and the refiants and occupants of each vill have had common by reafon of vicinage, a cuftom, that if any inhabitant of S. S. have any pafture ground in N. S. for cattle, which go on the walle, then he fhall pay tithes to the parfon of S. S. where he inhabits, and that in confideralion thereof, the reclor of S. S., fliall pay to the parfon of N. S. four fhillings, and to the vicar eight iliillings ; and that the party inhabiting within his parifli Ihall be difcharged of tithes againfl the parfon of N, S, ; (n) OrJ* Y. Clarke, Gwill. (o) HardcaRle v. Sciater, ^437. Anftr. 638. Gwill. 784. P 3 though 214 Law of Tithes. Ch. VIII. though it was objected that it was not equal, it being unreafonable, that the paribn of S. S. Ihould have all the tithes of lands of N. S. paying to the parfon four fliillings per annum, and that the parfon of N. S. iliould not have the fame privileges in the lands of S. S., and that by law no parfon is to have tithes, but of lands in his own parifli ; yet it was held, that though the cuiloni were hard, yet being found by the verdict the court could not inter- fere ; that there was a recompence, fuch as it was, given to the parfon of N. S., and though not given by the par- ties themfelves, yet it was given by the parfon of S. S., which is in effect the fame (/>). On the other hand, where a modus was infilled on of one penny payable to the re£tor annually at Eailcr by the owners, and occupiers of ancient tenements having right of common on S. common, in refpect to v/hich ancient tenements the lands occupied by the defendant were fet out, or allotted as a modus for the tithes of grafs arifnig either on the ancient eftate, or common in right thereof, whether fuch common ihould be divided, or allotted, or permitted to continue undivided or unallotted, and whether the grafs be cut and made into hay, or whether it be eaten by barren or unprofitable cattle ; the modus was held to be void upon the face of it ; the court obferving, that it did not appear that any agreement was made with the rector, at the time of the inclofure, refpecting the payment of any modus for tithes, or for laving the rights of the owners of the farms over the lands when they fliould be inclofed, and that without feme agreement it might be a quellion, wliether the modus was not extin- guilhed by the inclofure ? But fuppofmg that by ufage antecedent to the inclofure, a modus of one penny had (/) Hickes V. Froud, Gwill. 267. been Ch. VIII. Exemptions partial 1 1 5 been paid for the farms and the commons, It could not have been paid for hay on the commons, for the com- mons from the nature of them, and of the rights over them, could not have produced hay. Such a ufage could not have afforded a prefumption of any ancient agreement on the part of the reclor to receive, and on the part of the owners of the farms, to pay an annual fum in lieu of the tithe of a tithablc matter, which at the time of making it could not have been in the contemplation of either of the parties, as the fubjeft of their agreement, and over which one of the parties had no right. For fuppofmg the ancient rights of the owners of the farms to have continued after the inclofure, yet the right of the owners of the farms could not before the inclofure be extended to any exemption from payment of tithe of hay, becaufe if hay had been produced on any part of the common, it would not have belonged to the owners of the farms, who paid the modus, but to the owner of the land on vv^hich it grew, who was the lord of the wade (5'). A parochial modus may extend to lands recently inclofed, but it is otherwife with regard to a farm modus (r). It remains now to be confidered how a modus may be difcharged, and tithes may become due and payable in kind. A modus may be difcharged by the deftruction, or al- teration of the fubjeft, for which the modus was payable ; as where the prefcription is for hay and grafs of any par- (7) Scott V. Fenwick, Gwill. (r) Bifhop v. Chichefler, Gv/ill. 1250. 1323- P 4 ticular 2i6 Law of Tithes. Ch. VIII. ticular quantity of land, if the land be converted into a hxop garden, or tillage, the prefcription is gone (j). Thus, as I have had occafion in a former part of this work to ftate (t'), a modus for a mill, \vhen it was partly a com mill, and partly a fulling-mill, in confccjuence of the fulling wheels being taken away and two mill-ftones fubftituted in their room, was held to be difcharged, on the ground that what had been done was equivalent to the erection of two new corn-mills (z/). So if an ancient mill under a building worked with one wheel, and the owner, under the fame roof, e?e£t two new wheels, and two new flones, this conflitutes it in all refpeQ;s two mills, and he cannot cover them by the fam.e modus ; he might as well ere£b another mill on the fame flream, and call it two mills. The principle upon which it is decided that a m.cdus is deflroyed where tvvo ftones are erected inftead of one, is, becaufe the miller is thus enabled to grind a double quantity (y). So where a v/ater courfe was altered by the owner of a mill, and the mJll nulled down by him, and rebuilt upon it, it was_ adjudged that the m.odu3 was extinguilhed (^y). So where there is a prefcription to be difcharged of all tithes by delivering deer out of a park annually, and the park is difparked, the prefcription is deflroyed (.v). Eui: where a miill had originally only tvv'o pair of flones, and a tliird pair had been added, the whole being carried by the original (j-) 3 Infl. 490. I Roll. Abr. 908. &: fupra,' 153. But fee 651. Cowper V. Andrews, G\YilI. 275. [t) Supra, 47. Moore, 683, iu which the qurftion («) Talbot V. May, Gwill. was, whether a modus for a park ©f 782. 3 Atk. 17. 2s. a year, and a fhoulder of every (u) Ibid. thi d detr killed in it, was deter- (w) I Roll. Abr. 652. niined by difparking, on which the (x) Hutton 58. See Gwill. court were equally divided. frame \Ch. VIII. Exeiuption: partial, 'ii-y frame and wheels, and the mill being incapable cf .working more than two pair of ftcnes at one time ; a modus for the mill was neverthelefs eftablifhed (y). So if the modus cover the land, and the mill is merely an accidental quality, the deflrufftion or alteration of the mill does not amount to a difcharge of the modus (^.). In like manner, wbere a party was feifed of lands, for the * titjies of which he had immem.orially *paid five {hillings and fourpence, and he built a ccrnSffiiil upon the fame., it was adjudged he fhould pay no tithes for the corn- mill, becaufe the lands were difcharged from the ' modus {a). So where there was a modus for lands contained in a park, which belonged to one perfon orio-i- nally, and was afterwards difparked, and divided out among feveral perfons, that was held not to dellrov the modus, for the prefcription went to the land, and not to the park ; confequently, as it v/as a modus in refpeft of the land, it was not deflroyed by dividing the land (^B). So v/here forty-eight acres of comm.on lands were fubjcd to a modus, and an agreement was entered into between the defendant and the parfon, and thofe who had a right to feed upon the common, to m.ake an inclofure, and an ad of parliament was pafied for that purpofe, by v/hich k was provided, tliat they fhould enjoy all their rights in feveraky, as they did the right of common before ; thefe forty-^ight acres being allotted to the defendant in lieu of common, they were held to be Hill covered by the modus ; for although the recital in the aft ufed only gene- x-al words, yet it Ihewed plainly the intention of the legif. ^ature to have been_, that every perfon fhould enjoy his ^j) .Goo,dw>n V. Wortley^ 782. 3 Atk. 17. Gvvill. 715. {^a) 1 Roll. Abr. 6^i, {%) Talbot V. May, Gwill. {h) See Gwill, 786. iliCl- 21 8 Law of Tit ha, Ch. VIII. Hilotment, as before in^ the fame way as he did the fubject, in lieu of tithes, and that was liable to the modus (r). But in 2l cafe, inv/hich the owners of a certain demefne claimed the benefit of a modus in hcu of tithe of corn, grain, and hay, and by an acl of parliament a common ' was inclofed, and ninety acres allotted to the ov/ners of that demefne, a claufe in the adl that the divided lands before parcel of the common, fhould be holden by each perfon, to whom the refpedive divifions were allotted, fubjecl to the fame charges and incumbrances as their own former land, to which they are allotted, and confolitated, were before fubjecl ; and aifo a claufe that the ad fliouid be conflrued beneficialiy to the land owners, to whom the refpcctive divifions were allotted, v/ere held not to extend the miodus to the allotted lands ; the court being of opinion, that this cafe was clearly diflinguifhabie from the cafe I have jufl cited, fince the demand of the impropria- tor in the principal cafe, \v^s of the tithe of com, grain, and hay. But corn, grain, and hay could not be part of what grew on a common ; the tithes, that arofe upon the com- mon, could only have been tithes of agiftment, or of lambs, calves, wool, milk, and other fpecies of tithes, which could have been the produce of a common, that there- fore, the exemption could not relate to any other but fuch fpecific tithes, and was not comprehended within the fubftantial idea of a modus or com.penfation infifled on by way of exemption from payment of tithes, for thofe lands, which were part of the common, but which then produced corn, grain, and hay ; for the reclor could have no benefit from this modus, which was confined to the tithe of com, grain, and hay, in refpect of any fpecies [c) Stockellv. Tern.-, Gwill. 823. I Vef. 115. 5 °f Ch. VHI» Exemptions partial. 210 of tithe which could arife from the ccmmon, while it re- mained common. In fliort, that the decilionin this cafj reftcd on th.e fame principle as the decree in the cafe laft cited, that what was before exempted fhould continue ex- empted, and what was before not exempted fliould pay tithe {d]. Nor docs unity of poflcffion deflroy a modus ; thus in a cafe, in which a prefcription was alleged, that the queen and all thofe whofe eftate flie hath, had ufed to pay to the redor of Kingfwood two fhil lings and fourpence yearly, in fatisfacllon of all the tithes of certain land in Kingf- wood ; and it appeared in evidence, that the queen had the eftate of the abbot of Kingfwood, who was owner of the land, and reclor in fee in right of his abbey , whence it was inferred that the prefcription was void ; inafmuch as the abbot could not pay himfelf, nor could the qusen, vvho has now the eftate of the abbot ; but that the prefcription ought to have been ftated, that when the queen demifed the land, the occupier had ufed to pay the modus ; the court were clearly of opinion, that unity of pofTeiTion is not a perpetual difcharge of the tithes, nor of the recompence in lieu of them, and confequently that the retainer might be regarded in the light of a payment to himfelf {e). The next fpecies of partial exemptions to be confidered. are conipofitions rcaL A real compofttion is when an agreement is made be- tween the owners of land, and the parfon or vicar, with the confent of the patron and ordinary, that fuch lands ftiall be exempt from the payment of tithes, in confidera- {d) Moncafter v. Watfon, {e) Chambers v. Hanbiir)^ GwilL 905. 3 Burr. 1375. GwiU. 208. Mcorejzy. tioa 2 20 Law of-Titkes. Ch. VIII, tion of fome land, or real recompence allotted to the par- fon in lieu, and fatisfadion of them : It does not mean every fubftantial permanent fecurity for the payment of the compofition ; but land fubftituted in Heii of tithes, or a rent charge iffiiing out of land (/) ; or a compofition of an annual fum out of the profits of a manor; for though in the lad inllance, it it was infilled, that the compofition was void upon the face of it, fince the pay- ment was not to arife from the manor or park, but frona the profits of the manor, and that eventually there might be no profits, and the compofition was therefore bad in refpeft to the precarioufnefs of the recompence j yet the court eftablifhed it (g). » This fpecies of agreement was allowed by the law on the principle, that the clergy were not likely to be preju- diced by fuch compofition, fmce the confent of the ordi- nary, whofe duty it is to guard the rights of the church in general, and of the patron, whofe intereft it is to proted that particular church, were both made elfential to the validity of fuch compofition ; but experience having fhewn that thefe precautions v/ere infufficicnt, and the pof- feflions of the church being by means of fuch agree- ments frequently impaired, the difabiing flatute of the 13th of Eiiz. c. 10. I'eferred to in the commencement of this work, was palTedjwhich prohibits among other fpirit- ual perfons, all parfons and vicars from making any con- veyances of the eftates of their churches, other than for three lives, or tv/enty-one years. So that now by virtue of this flatute no real compofition made fince the 13th of Eliz. is good for any longer term than three lives, or (/) AttorneyGeneralv.Eowlcs, (^ ) Sawbritlge v. Benton, Gwiil. IC9. 3 Atk. 809. Gwill, 1397. 2 Anflr. 372. twenty- ell. Vill. Exempiions partial. 2ii twenty .one years, though made by confent of the patron, and ordinary. Thus the mifchief has been efFeclually obviated, fuch compofraons being now rarely heard of, unlefs by authority of parliament (b). The diflinftion between a modus, and compofition rea! is clearly fettled. A modus muft be taken to have im- memorially exiiled, and it requires no other evidence to prove it than immemorial ufage : a compofition real mufl have commenced within time of memory, and its commencement mufl be proved, for otherwife every bad modus would be fet up as a real compofition ; but to eftablifii fuch compofition real it is not requifite, that the deed, by which it was created^ fhould be fliewn ; for that purpofe, it is fufiicient to adduce evidence, from which it may be inferred that fuch deed did once exift, and by which the court is warranted in prefuming, that fuch com- pofition took place, upon a folid and legal foundation : thus the confent of the ordinary to the compofition real, ihall be prefumed from length of time, and where it ap- peared, that king Edward the thh'd entered into a compo- fition real, as owner of the land, and as patron of the church, it was held, that he might alfo be prefumed to have aded t)n that occafion, as fupreme ordinary. After an acquiefcence in fuch agreement by fucceflive incum- bents during a long period of time, it appears by a feries of authorities, that the courts are averfe from dillurb- (i-) 2BI. Com.aS. 2 Wooddef. Bowles, 3 Atk. 809. & Cwill, 106- Gwill. 591. Ekins v. Dor- 109. I^eg. p. n. c. 20, 2 JJof, mer, Gwill. 800. 3 Atk. 534. and Puil. 206. fc)ec alfo Attorney General v. li^g 2 22 Law of Tithes. Ch. VIII. ing the quiet of a parifli, and lean to the prefumption, that in the tranfattion omnia Jolemnitcr fiiijfe aiia (J). An agreement by the parfon, patron, and ordinary con- firmed and edablilhed by a decree in equity, fnice the ftatute of thi i3Lh of Eliz., though fome centuries ago deemed bindmg (^k)j it is now fettled, can bind only the parties to the fame, becaufe property csn be affected only by the law cf the land. Thus to an information brought by the Attorney General, at the relation of Dr. Blair the rector, for an account and payment of tithes in kind, the defence fet up was, firil, an agreement entered into in the yerr 1664, between a former rector, and the owner of the lands in the parifli, for accepting a yearly fum of eighty pounds in heu of tithe ; and farther, a decree was infilkd on, which appeared to have been pronounced in 1677 between the fame pai'ties, with the exception of the bifhop, who was no party to the agreement. It was alfo urged, that a court of equity could not relieve j and laftly, the length of time was objefted to, as a bar to the plaintiff's demand. But lord Northington C. was of opinion, that the agreement was on the face of it unequal in refpect of the confideraticn flipulated to be paid to tlie reftor, for it appeared, that the agreement v/as entered into in order to effeduate an inclofure of the open fields in the parifh ; and that no confideration was allowed in refpect of the future improvement of the lands by fuch inclofure, of which the occupiers would reap the benefit, and which was always allowed in every private bill for an [i) Heathcote v. Mainwaring, See alfo Gwill. 689, and Robin- Gwill. 1345. 3 Bro. Ch. Rep. fon v. Appleton, 1 loi. Ibid, and 217. Sawbridgev. Beaton, Gv.-ill. Startup v. DodderiJge, Gwill. 1397. 2 Anftr 372. Benfon V. 587. Watkins, Gwill. 612. Bunb. 10. (/-) See O'Connor v. Cook, Franklin v. Hobrei, Gwill. 3229. 8 Vei, jun. 53 7. inclo'urej Ch. VIII. Exemptions partial. 223 inclofure. That even if the agreement v^'erc equal, it would not bind the fucceffor m the re&ory^ but would be void as againft him. That as to the decree, it appeared to have been made in a caufe by confent between the fame parties, except the bifliop of the diocefe, a mere formal party. That the parties them.felves did not confider the agreement as binding on the reclor ; for they regarded the annuity of eighty pounds as not being an adequate confidcration for the rector's having reMnquilhcd his tithes in idnd, and therefore, they entered into a new agreement, by which they contrafted to allow him the additional fum of fixteen pounds eight fhillings and feven-pence per an- num ; and on being allowed that addition, the reclor by his anfwer confented to have the agreement eflablifhed ; and although the decree founded on the agreement in terms bound the fucceffors in the rectory, yet it was in a caufe by confent, and could have no fuch operation ; and as to the cafes cited to a different effect, his lord- fhip difallowed their authority. That the agreement, and decree being laid out of the cafe, a court of equity mifht r-'ive relief : Enititas fequ'itur Iczem, That it is a fixed rule at law, that no prefcription can run againfl the church, and that lenG;th of time oug^ht in this cafe to be no bar. But the court added, that if the parties had made an allowance for the future improved value of the tithes, the re£lor might have been left to his legal re- medy ; an account of the value of the tithes which had accrued from the time of filing 'the information was decreed, and that the balance of fuch accounts fliould be paid to the relator ; and the decree was affirmed on appeal by the houfe of lords (/). (/) Attorney General Sc Blair 2 Wooddef. Lecl. I07. Jones v. V. Cholmley, Gwill. 914. Annbl. Snow, Gwill. 1199. Cut'';be-t v. 510. 4 Ero. P. C. 332. And VVeflwood,Gwin.606. Gib. E._. Carcwright v. Cotton, in the Ex- Rep. 230. chequer, 24th gf April I 779. S. P. There a:TJ^. Laiv of Tithes. Ch. VIII, Tliers are alfo ether fpecies of compofition than com- pofitions real. Thus a compofition to have a cow, and a cei"tain number of other beafts fed in a wood in lieu of tithes of pannage, is good (/vj). So in an aclion of trover for a lamb, and a fheaf of wheat, a fpecial verdi<9: was- found, that between the years 1216 and 1261, there was a compofidon between the abbot and convent of the abbey of Fountains of the Ciilertian order, and the pre- bendary of Studlcy, of which prebendary tl"he abbot and convent were feifedj'that the abbot and convent Should be forever free from tiie payment of tithes of their lands which they tilled with their own hands, within a certain grange, within the prebend, and that they fhciild pay tithes for all lands without the grange, and that the abbot and convent diovud pay annually to the prebendary and his fucceilors hve niafks. It was further found, that in the V3ar 13 "9, there Vv^as another compofition, reciting the former ; but it v/as not found, that this'was confirnied fey the patron and ordinary, by which the prebendary and his fucceffors were to have their eledion yearly either to receive tithes in kind of corn and grain ariiing within the places aforefaid, as v.ell of Ic^nds in the hands of the abbot and convent, as in the hands and manurance of their tenants, or to receive five marks, fo as fuch election were notliied to the abbot ; and for thofe years, in which the prebendary fnculd choofe to receive tithes, the five marks were not to be paid. In Vv^as then found, that the poffef- fions of the abbey came to the crown by ftatute 3ifl Hen. 8., and that at the time when the a£lion was com« m.enced, the defendants were proprietors of the lands, and that the plaintiff was feifed in fee of the prebend, and that a lamb and fiieaf were then renovant upon the lands. The court of Exchequer held that the fecond compofition did net aiTccl the fucceflbrs of the prebendary, and that, {m) Gwiil. nC. therefore^ Ch. VIII. Exemptions partial, 225 therefore, the abbot was not bound by it ; that the power of eledion was gone, and confequently the firfl compofition fliould (land quoad terras i?i propriis 7nanibus ; and that for the others, tithes in kind might be taken as before (ji). Farther, in a cafe, in which the lefTee of tithes agreed with the owner of lands for certain collateral confidera- tions not to take tithes in kind from the tenants for twelve years, but to accept a reafonable compofition not exceeding three {hillings and fixpence per acre, and there- to bound himfelf and his afligns, this agreement was held void, from the uncertainty of the fum to be paid ; and the imderleflee who fued the tenant of the land for tithes in kind, obtained a decree in his favour (c). • Nor is it neceflary that the compofition fhould be in wi-iting ; but a parol agreement for that purpofe fhall be allowed to operate. Thus to a bill by the leiTee of the redlor for tithes in kind, the defendants pleaded a verbal agreement between them and the reclpr, that they fhould retain their tithes for three years, paying a certain fum of money ; and a queftion was raifed, whether the above agreement was binding upon the rector and the plaintiiF, and the court declared the agreement to be valid (/>). But it is clear that where there is a compofition between the parfon and the occupiers, and the money paid and ac- cepted during the incumbent's life ; yet, upon his d?ath, .the fuccefTor may fue for the tithes in kind, without no- tice that he refufes the compofition, becaufe it determined {«) Inglebyv Wy veil, G will. (/) Keddington v. Adamfon, 516. Hard. 381. Gwill. 611, Sed vid. S. C. in not. (0) Brewer v. Hill, Gwill ibid 5418. Anftr. 413. 6 ^y 926 law of Tithes. Ch. VUt by the death of the incumbent v/ho made it, and the fuc- ceffor m.ay continue, or wave it at his election (^q) ; and even an agreement by deed betv/een the vicar and the patron, with the confent of the ordinary, and the inhabi- tants of a vill within the parilh, to pay fix pounds in lieu of all tithes arifmg within the vill acquiefced in for a hundred years was held not to be binding on the fucceflbr of the vicar (r). Such alfo was the decifion in regard to an agreement for the acceptance of land in lieu of tithes, entered into fubfequently io the flatute 1 3th Eliz. though fancdoned by the concurrence of all parties inte- xefled, and confirmed by a decree in equity (j). But if upon coming to the living the fucceflbr accept the com- pofition, that will amount to a confirmation fo far as to oblige him to give notice of his renouncing it, and demand- ing tithes in kind, before he brings his bill ; otherwife the occupier making a tender of the money before the com- mencement of the fuit, and offering by his anfwer to pay it, fhall not be liable to cofts ; but in mofl cafes will be in= titled to his cofls from the parfon, if he relies on the tender for his defence (J). If the vicar fhew a compofition that the parfon ufed only to have the tithe of corn, the vicar fhail have the tithes of rape feed, hops, and other tithes compara- tively of modern introdudlion into this country (u). In cafe a bill be filed for a compofidon for fo much in. the pound according to the rent of the land, the account (g) Brown v. Barlow, Gwill. 1199. jooi. (/) Brown V. Barlow, GwilJ. (r) Lloyd V. Mortimer, Gwijl. icoj. 11090. (m) Robinfoo V, Brooke, ^;} Jones 7, Sjiow^ GwU* Gwilli|7i, X.h. VIII. Exemptio?n partial. 247 is confequentlal to the difcovery, as well as in the cafe cf filing for tithes in kind ; though it was objected on the part of tlie defendant, that the difcovery once obtained, it was a queflion folely at law, and the fubject of an adioa of aflumpfit (.v). With refpeO: to notice of the determination of a com- ;pofition, fuch notice mufl be given by analogy to the notice given in a holding of land, and is regulated in the fame manner as between landlord and tenant, from year to year ; for the compoHtion with the occupier is fimilar to a leafe to a flranger : therefore, if a compofition for -tithes be made by A. as proprietor, and he grants a leafe of them to B. whofe interefl is afterwards determined before any alteration is made in the compofition, A. cannot determine it without giving fix months no- .tice ()'). And upon this principle in the Kenfington cafe above referred to, it was exprefsly decided by the houfe of lords, in conci^rrence with the unanimous opinion of the judges, that a notice given upon the eighth of Septem- ber to determine a compofition from year to year, fuch year x:ommeneing on the twenty-ninth of September, is by no means fufficient to determine fuch a contract (::::) : Nor if a notice be too late to determine a compofitionfrom year to year, will it be fufficient to determine the compo- fition for the fucceeding year (a). But where a compo- fition is payable at Chriftmas ; notice at any time before Chriftmas, given exprefsly for the fucceeding year, will be fufficient {b). (x) Worrallv. NichoUs, Gwili {z) Adams v. Waller, Gwill. 1302. 1204. 0' ) Wyburn v. Tuck, GwiH. [a) BifJiop v. Chicheiler, 1517. and I Bof. & Pull. 45S. Gwill. 1321. vid. Reynell v. Rogers, Gwill. {b) Glafs v. Caldwall, Gwill, 612. Hilton f. Heath, G^till. 1030. Vid. Walter v. Flint, 8.15. Gwill. 985. Q « It 228 Law of Tithes. Ch. VIII. It feems competent to a defendant io objeft to the want of a fufficient notice to determine the compofition, though he infifl upon it alfo as a modus (r), (c) Bifhopv. Chichefler, Gwill. Willoughby de Brooke, Gwili. 1322. Sed vid. Atkyns V. Lord 1412. CHAP- A ( 229 ) CHAPTER THE NINTH, Of Tithes in London, KTECEDENTLY to the reformation, and the dlfTolu* tion of monaflerieSj the maintenance of the fecular clergy of the city of London, a fubje6t involved in con- fiderable obfcvirity, feems to have arifen principally from voluntary oblations, and from perfonal tithes, which vi^ere nearly of the fame nature : But certainty in refpeft to the quantity, value, or fpecific articles to be offered, not being prefcribed by any canon or law, frequent litiga- tions arofe between the clergy, and the citizens, and in- habitants, relative to fuch payments ; the progrefs of which is minutely traced by Dr. Burn ; but it is alto- gether unneceffary and uninterefting to enter into any detail of thefe difputes ; it is fufficient to obferve, that at the period of the reformation the provifion for the parochial clergy of London, on whom the fundions before exer- cifed by the regular priefts had devolved, had become very precarious and inadequate (^). In order therefore to remedy this deficiency, and to adjuft a matter of fo great concern, it was fubmitted to the archbiiliop of Canterbury, and the lord Chancellor, and other lords of the council ; and they made an order for the payment of tithes within the city, according to the rate of two fhillings and ninepence in the pound. This order or decree was firfl promulgated by proclama- tion, and afterwards eflablifhed by a6l of parliament, the 27 Henry the eighth, c> 21. But the fame not being al- together complete, a fubfequent order or decree was pro- (a) Bennett v. Trepafs, Gwill. alfo Dunn v. Burrell and GofFe, 640. 2 Bro. P. C. 437. See Gwill. 299. 13 Vef.jun. 16, 17. Q 3 nounced 2^0 La-iv of Tithes, Ch. II.', ncunced by the lords- for the like pm'pofe with fome additions, and was' confirmed by the llatute 37 Henry the eighth, c. 1 2 (b\ by which a proper provifion for that learned body was finally afcertained, and regulated. which, after appointing arbitrators, fe6l. i. was to the following effeft : 2. That the inhabitants of houfes Slid occupiers of fhops and other buildings, in the city of London and its liberties, fnalipay to theparfons, vicars, and curates after the rate of one Ihilling and fourpence halfpenny every ten fhillings annual rent, and for every twenty fliil- lings annual rent, two Ihillings and ninepence, and fo for above the rent of tvv^enry (hillings by the year, afcending from ten llnllings to ten fliillings, according to the rate aforefaid : 3. That, if any leafe of fuch houfes or other buildings fhail be made by fraud, referving lefs than the 'accuftomed rent, or without any rent referved upon the fame by reafon of any fine, or any other fraud, the occupiers /liall pay according to the aforefaid rate, on the iifuai and fair rent before the making of fuch leafe : 4. That owners occupying their own houfes, fliops, 02? ether buildings, iliall pay according to the fame rate, on the lail rent : 5. That ieffees of a houfe or other building inhabiting part and letting out the refidue, fhall pay after the lame rate cccording' to the quantity of their rent by the '/ear : 6. That where leflees of diverfe houfes and other buildings ihaii aiTiP-n or let out fome or one of fuch build- jngG, or 7. where a leffee of one houfe or other buildingy ihaii let the vvhole of fuch houfe or building to one or more perfon or perfons the occupiers fhall pay according to ^leir refpeftive proportions of the rent : 8,. That dwelling- houfes converted into warehoufes, or warehoufes con- terted into dwelling-houfes fhall be fiibject to the fame rates : 9. That, where any dyehoufe or brewhoufe, with implements for dying or brewing, fhall be demifed with a rent referved^, as well in refpedt of fuch implements as {h) Bennett v. Trepaf*, Gwill, ^43, 644. Pej. p. 2. c. 35. of Ch. IX. Of Tithes in Lo'/idon. 231 of fuch dyehoufe or brewhoufe, it fliail be fubje£l to the fame rate, with the third penny abated : and that a prin- cipal houfe with a quay or wharf having any crane or gibbet {hall pay after the like rate, with like abatement : and that wharfs belonging to houfes without crane or gibbet, fhall pay the fame as manfion houfes : i o. That where any manfion houfe, with a Ihop, ftable, warehoufe, and other appurtenances, fhall have been occupied toge- ther^, and (hall be afterwards fevered, each part fhall be fubjeft to the fame rate according to the feveral rents re- ferved : 11. That the tithes fliall be payable quarterly at the four mofl ufual feafls of the year : 12. That every houfeholder paying ten fhillings rent or above, fhall for himfelf be -difcharged of his four offering days ; but his wife and farrily taking the rights of the church at Eafler, fhall pay twopence for their four offering days yearly: 13. That where a houfe fhall have been let for ten fhillihgs yearly or more, and fhall be fubdivided into parcels yielding lefs than ten fhillings yearly, the owner or principal lefTeefliall pay the whole rate, and the under lefTeei fhall be difcharged paying twopence yearly for their foui? offering days : 14. That for fuch gardens as appertain not to any manfion houfe, which any perfon holds for plea- fure or his own ufe, he fhall pay no tithes : but if he hold fuch garden, containing half an acre or more, and fhall make any yearly profit thereof by way of fale, he fhall pay tithe for the fame, after fuch rate of his rent as firft above fpecified : 1 5. That if any fuch gar- den, then being of the quantity of half an acre or more, be thereafter by fraud divided into lefs quantities, payment fhall be made according to the rate aforefaid : 16. That the houfes of the nobility in their own hands, and the halls of companies unletten, which have not in times pafl been ufed to pay tithes, fhall be exempt : 17. That the lame exemption fhall extend to fheds, ftables, cellars, timber yards, and teinter yards, which were never parcel Q 4 of 232 Law of Tithes* Ch* IX- of any dwelling houfe, and have not been accuflomed to pay tithes.: 18. Provided, that where lefs than the above rate hath been accuflomed to be paid for tithes, the aceuf- tomed rate fliall be continued : 1 9. That difputes fhall be decided by the mayor, by the advice of council, with €ofts at his difcretion and that of his affiilimts : 20. That if fuch difputes fliall not be fo determined within two months, the lord Chancellor, on complaint to him made within three months then nejit following, fliall decide the - fame with fuch cofls as fnall be thought convenient ; pro- vided that if any tenement, on account of great ruin or decay, fhall be let for lefs than the ufual rent, the occu- pier fliall pay only after the rate of the rent referved. In confequence of the fire of London, and its extcnfivj ravages, it became neceifary for the legiilature again 10 interpofe in refpeft to tithes payable within the city ; and accordingly the tithes of thofe parlflies, the churches of which were by the fire of London either demcliflied, or in part confumed, whei .er remaining ^ fmgle or united, are by the flatute 2 2d and 23d Car. 2. c. 15. reduced to a certainty (c) ; and the fums fo afcertained, with glebes and perquifites, gifts and bequefls to the refpetlive par- fon, vicar, or curate of any parifh, are declared to be the annual maintenance of the refpeclive parfons, vicars, and curates ; and the rates on the feveral houfes, {hops, and other buildings, except parfonage or vicarage houfes, within fuch parifhes, are directed to be affeffed within a limited time, by the alderman, deputy, and common coun- cil of the ward, and churchwardens of the parilli, or any five of them, of whom the alderman or his deputy is to be one ; and an appeal to the mayor, and aldermen is given to any party aggrieved by fuch affeffment, and provifions are made for the review or alteration of fuch aileirments within a limited time. And three tranfcripts of the affeff- (c) Vide Appendix. ments Ch. IX. Of Tithes in London, 233 ments aredire^^ed to be made by the aflelTorSjOne to bekept among the records of the city, another in the regiftry of the bifhop of London, and the third in the veflry of the parifh ; and the aft further directs that the funis aflelTed - are to be paid to the parfons, vicars, and curates, at the four mod ufual feafts of the year, or within fourteen days after each feafl ; and that the payment fliall commence fro a the time when the incumbent begins to officiate ; and in cafe of an impropriation, the impropriator is there- by directed to make the fame allowance to the incumbent as was ufual before the fire. And it is alfo thereby pro- vided, that in cafe of refufal to pay the fum aifeiled, it is to be levied by warrant of diftrefs from the lord mayor, and that no court or judge ecclefiaftical or temporal, other than the perfons authorifed by that ad:, fhall have any cognizance of the funis to be paid by virtue thereof. And the warden and minor canons of St. Paul's church, London, parfon, and proprietor of the rectory of St. Gregory, are to enjoy all tithes, oblations, and duties, in the fame manner as before the maldng of the act. On the above mentioned decree and flatute of the 37 Henry the eighth, c. 1 2. a variety of points have arifen, and been difculfed ; as for example, with reference to the extent of the exemption of houfes and buildings within the city, whether fuch exemption is to be reftricted to the houfes and buildings exprefsly excepted by the flatute, or whether it fhall be permitted in any other cafes ; with refped: to the import and operation of the word " rent,'* as ufed in the decree ; as whether it means adual rent, or eftimated rent with reference to the value, a point in- volving in it the confideration of houfes in the occupation of the owners themfelves ; at what rate the payment in lieu of tithes fhall be made as authorifed by cuflom j what fhall be the confequence of ercding new houfes on the fcite of old houfes, or of ereding a houfe on the fcite of a building, 2^4 Law of Tithes, Ch. IX,' building, as for example, a fhed, which was not liable to the payment of tithes. Thus, where to a fiiit for tithes of a houfe in London, it was infifted that the houfe belonged to a priory which were difcharged of tithes by a papal bull ; the court held, that by the common law houfes paid no tithes, and the right in that cafe arifmg immediately on the ftatute being enadted, which impofes them generally upon every houfe, no exemption fhali be allowed but to fuch houfes as are fpecially exempted by the flatute itfelf {d). So in refpeft to the import of the term rent, where a queilion was raifed, whether a rent for half a year of a houfe in London, and afterwards for another half year, was a yearly rent within the meaning of the ftatute : It was refolved in the affirmative (e). So where the tithes of a houfe in London were claimed,- the ancient farm rent of which was five pounds at the time of and fubfequentlyto the decree and ftatute, and a newleafe had been recently made of the houfe, referving the rent of five pounds a year, in addition to v/hich a great income or fine was covenanted to be paid yearly, at the time of pay- ment of the rent, as a fum in grofs ; it was contended, that fuch refervation and covenant were evidently fraudu- lent, and with a defign of depriving the parfon of the tithes of the true rent of the houfe, which belonged to him by virtue of the decree and ftatute, for that the whole might have been refei*ved in the ftiape of rent ; but it was refolved by the court, that if fo much rent be referved as was accuftomed to be paid at the time of the ftatute, whatever fine or income may be paid, the parfon accord- {d) Green v. Piper, Gwill. (e) Meadiioufe v. Taylor, Noy. 164. Cro. Eliz. 27(5^ 130. See alio Gwill 329, in not. s ing Ch. IX. Of Tithes in London. 235? ing to the true conflrudion of the decree, can complain of no fraud ; for the fraud thereby prohibited, is, where lefs rent than was then accuftonied to be paid is refer ved, or if no rent at all berefervedj for then tithe Ihall be paid according to the rent which was then lafl before referved: and it was farther refolved, that in refpect to fuch houfes £S were never leafed, but inhabited by the owner, this was a cafia omifus, and that they were not within the de- cree and ftatute, and confequently not Hable to any pay- ment for tithes (fj. But in the fame cafe, it was clearly held, that if no fine or income be paid, yet if no rent be referved, the parfcn jfhall have the tithes according to the decree j for that the cafe ftated by the decree is ftated merely as an example,, or reafon why no rent is referved, and whether any fine» or income be paid, or not, is immaterial to the paribn. The fecond, however, of thefe points appears queftion- able, and unfupported by reafon, and the fpirit and in- tention of the decree. There feems no ground for ex- empting houfes, becaufe they were never in leafe, and ahrays in the occupation of the owners. And in a recent cafe, which I fhall prefently mention, it was denied by the court {g). In regard to the firfl point, it was muda^ difcuffed, in a cafe in v/hich A. being feifed in fee of a~ houfe in London, v^hich from time imm.emorial had been let for five pounds per annum, made a leafe of it, referv- ing the rent of five pounds per annum, with a covenant alfo for the payment of one hundred and feventy-five pounds in the name of a fine and income to be paid in feveral funis of twenty-five pounds per annum during the term ; that is, twelve pounds ten fliillings on one of the days on which the rent was made payable, and twelve Cf) Skidnxore v, BelJ, z Inft, {g) Infra, 245. 660. pounds 236 Law of Tithes. Ch. IX. pounds ten lliillings on the other of fuch days. And it was confidered as very dubious, whether tithes were pay- able under the decree and ftatute, according to the ancient rjnt only, or according to the ancient rent and the fum referved for the fiae and income ; or in other words, whether the parfon was entitled to his tithes after the rate of five pounds per annum, or after the rate of thirty pounds per annum (/?). However, it was held by Lord Loughborough C. in the minor canon's cafe, that the defendant having fet forth his leafe at a low rent, and a fine, and alleged by his anf .ver, that he had never heard of any greater rent being paid, and there being no evi- dence to the contrary, he was liable only according to that rent (;). But It has been exprefsly decided, that the rate ordered by the decree and ftatute to be paid out of the rent of houfes in London is alTeffable on the improved rent of fuch houfes {k). Yet, generally fpeaking, a defendant In fuch cafe may fet up a cuftomary payment to protect himlelf againfl the claim of the ftatutory tithe. Thus in a cafe in which the vicar of the parifh of Saint Giles without Cripple- gate, exhibited his bill in the court of exchequer againft the defendants, as occupiers of houfes within the parifli, for tithes after the rate of two {hillings and ninepence in the pound, according to the yearly rent of their refpei^ive houfes, and grounded his de- mand upon the decree and ftatute; the defendants in their anfwer admitted, that during the time mention- {h) Duna V. Burrell, Gwill. {h) Sheffield v. Pierce, Gv/ill. 200. 503. Ivatt V. Warren, Ibid. (f) Warden, &c. of St. Paul's 1054. Sayer v. Mumford, Ibid, V. Crickett, 2 Vei". jun. 565, S^^' I ed Ch. IX. Of Tithes in London, 2'T^y ed in the bill, they had refpecdvely occupied houfes within the parifli at different rents, which they fpe- cified, but infifted that no fuch demand was ever made as two (hillings and ninepence in the pound, by any former vicar of the parifh, nor was the fame ever heard of w^ithin the parifii, till the plaintiff became vicar, which was but two years before the commencement of the fuit: And they farther infilled that they were exempt from fuch payment, after the rate of two (hillings and ninepence in the pound, either by virtue ofthe flatute and decree, or by fome other lawful means. There was no proof in the caufe, whether the houfes in queflion were in leafe at the time of pafhng the act or not ; nor was there any evidence, that the fum of two (hillings and ninepence in the pound, was at any time paid, according to the value ofthehoufes, by vir- tue of the flatute and decree ; but it vvas proved, on the part of the defendants, that till the time of the then prefent vicar, the witnefl'es had never heard of any fuch demand as two (hillings and ninepence in the pound for tithes within the parifh ; it alfo appeared by ancient tithe- books of the parfon, that lefs fums which were therein fpecified, and proved to be in the hand- writing of the col- leclor, had been collected, though, indeed, fuch pay- ments did not appear uniform. It was alfo proved, that for nine years, in the time of a former vicar of the parifh, the witnefs lived iii the houfe of one of the defendants, and during thofe nine years he never paid any more to the vicar than ten (hillings a year, or two (hillings and fixpence a quarter : therefore, the queflion in the caufe was, whether two fhillings and ninepence in the pound of the yearly rent of the refpedive houfes was due for tithes by virtue of the ftatute, or not. It was refolved in the negative by three of the ba- rons, the fourth diffentient. They obferved that it was evident on the cgnflruclion of the ftatute itfelf, and on the £3B tuiw of Tithes. Ch. IX. the authority of Lindwood, that in many places in the city there had been a cuftom to pay tithes according to the pound rate, which the itatute never intended to alter or enlarge, but to eftabliili ; for the flatute was not de- figned in deilruftion of any fettled right. They \vcre alfo of opinion, that if there had been a payment of lefs fums, by agreement between the parfon and parifhioners, they were confirmed by the flatute, becaufe it was the defign £)f the flatute to fettle fuch cuflomary payments, and to prevent their being unravelled on either fide. That ac- .cordingly fuch cuftomary payments and agreements had been complied with ever fmce the ftatute, and lefs fums had been paid by almofl every parifhioner to the parfon, with which they had been content ; that although feveral decrees had been made in the court of exchequer for payment of two fliillings and ninepence in the pound, yet no cuflomary payments in any parifh had been compounded between the parties, and the manner of tithing had continued the fame in each parifh, except in fuch parifaes as w'ere otherwife regulated by the ^atute 22 Car. 2. c. 15. They obferved, that fe£l. j8, was a perfect exception out of the decree, of all thofe who had paid lefs fums j and that, therefore, this could not be urged as a modusj or fet up in bar of tithes, for tithes were originally due, aitd confequently the bar mufl be complete j but there are no tithes of houfes due of common right, for they are not of that fpecies of fubftances which re- novant in anmwiy and therefore the common law, which follows th2 Levitical code, did not make them tith- able ; and they are tithable only by fpecial cuflom, or agreement. They i^irther remarked, that the new rate of two /hil- lings and uinepence in the pound was fuperinduced by the Ch. IX. Of Tithes in London. 239 the decree, and that it were a ftrange propofition, that the decree was in prejudice of the clergy, when it appeared that lefs Aims were conftantly paid for houfes in the city than what would be paid if they were rated under the de- cree; and moreover it appeared, that the ancient payment in lieu of tithes of houfes in London was fomewhat lefs than two fhiilings and ninepence in the pound. They farther held that this decree was made that all perfons (hould pay the received rents from houfes ; that where there had been accuftomed payments, the tithes were to continue payable according to that cuftom ; and where there v/as no immemorial cuftom, yet if there had been by agreement a payment for eight years paft, this according to the true conflrudion of the ftatute was to be regarded as a cuftomary payment ; for that the divifions and feverances of this houfes, wharfs, and warehoufes were to be as they had been for eight years pafl ; that therefore it appeared to the court, that if there had been an agreement to pay tithes for eight years pail, they were accuftomed payments within the ftatute, confonant to a uniform notion, that if there were tithes by cuftom or by agreement for eight years paft (/), they are within feft. 18, of that ftatute. That if all that pay lefs fums be exempted from pay- jnent under the decree, and be not within the decree^, jior within the obligation of the ftatute, the court ought to try whether there be fuch accuftomed payments or not, efpeciaily fmce it appeared by the books of the par- fon that lefs fums were collected j and it could not be prefumed, that they would have been collected in that jnanner, if they had not been old accuftomed payments ; {^l\ Sed vi(J, Bratapfton v. Heron, GwiU, ili^* contr. 240 Law of Tithes. . Ch. IX. for hoTv- could thofe fums have come into the parfon's books, if they had not been the old accuflomed dues ? That the difference of the payments in the bocks might be reconciled by fuppofmg fome of them to l? quarterly, fome half yearly payments ; that the quefticn related to the inheritance, and the inheritance was to h^i bound by the court's decree ; and where the inheritanc^j is charged merely by cuiloni, it is juft and uiual, if t.ie parties defire it, to try fuch cuflom at law. The court, therefore, conceiving fome doubt in r •-:{.= ■tion to thefe payments, ordered that it fliould be ref.rrei to a trial at law upon the Iflue, whether any, and -■hat fum or fums lefs than two Ihillings and ninept-i. twenty fhillings rent had been accuflomably paid by ir.s defendants for tithes, for the houfes in poifjH ; defendants, or any and which of them, althQugi:;;o p.. ■': that there had been any regular modus. Fiom , ■; decretal order the plaintiff appealed to the h. ..^ of lords, infilling that no iffue ought to have been direfted ; but fuch decretal order dijfentiente clero vvas affirmed (;/;). Again, in a bill filed by the warden and the minor canons of St. Paul's and their leffees claiming tithes at the rate of two {hillings and ninepence in the pound under the decree and acl of parliament, the defendants by their anfwer infifted upon various payments lefs than two Ihillings and ninepence in the pound, by reference to a paper, which they called the firft, or ancient rate, and that fuch payments under it were ancient cuftomary pay- ments. In their fubfequent anfwer to the amended bill, they fet up a different rate, and infilled upon the fame (m) Bennet v, Trepais, Gwill. Eq. Rep. 191. 8 Vin. Abr. 568. ^33. 2 Bro- P.C. 437. Gilb. pi. 3. Bunb. 106. by Ch. IX. Of Tithes in London, 241 by their crofs bill, and lord Eldon C. upon the whole record, was opmion that no fpecific cuflomary payment was fet up, as two. different payments were fet up; and his iordfliip held, that if a party infifl that a lefs fum than two fliillings and ninepence in the pound has accuftomably been paid, he muil prove v/hat was the fpecific fum. Whatever may be the difficulty of beheving that fo large a fum as two {hillings and ninepence could have been paid before the time of Henry the eighth, it does not difpenfe with the neceffity of proving v/hat was the adual amount of it, and inafmuch as the fum of two fhillings and ninepence is pri?nJ facie due, if no other payment can be fubftantiated by evidence, that fum mull be decreed to be paid (/>). That in refpecl to the meaning of the ex- preilion " accuflom.ed to be paid," it is clear it rnuft not be conjflrued to extend beyond the time of memory : That though in the cafe of Bennet and Trepafs, it was con- fidered that upon the flatute eight years for this purpofe were fufficient (5'), yet it is not to be confidered as fettled in that cafe, that fuch is the period. It has been urged, that it is fufficient, if within the limits of the eccle- fiaftical law, which are much fhorter than the tim.e c f memory (r). Aifoj in a recent cafe, a bill was filed under the decree and flatute feeking payment at the rate of two fhillings and ninepence in the pound upon the annual value to be let, of premifes confifting of extenfive warehoufes lately erefted by the Eafl India company, and ufed by them in the courfe of their trade. Thefe v/arehoufes were erected upon the fcite of fmall tenements, fom^e of which (p) The warden, ice. of St. (q) Gwill. 1315. Contr, Paul's, London, y, Morris, 9 Vef. (r) 9 Ve'", luo, 165. un. 155. R appeared 242 Law of Tithes, Ch. II!» appeared by the aDfwer to have been formerly occupied at low rents, aj^.d as to the others the ancient rents were not known. The anfwer did not ftate any fpecific cuftomary payment in lieu of tithes, but alleged generally, that fome lefs fums than after the rate of two fhillings and ninepence in the pound were paid, fpecifying by a fchedule fome payments, not however carrying them back to the date of the ftatute. The defendants infixed, that the payment according to the ftatute, could be only upon fuch of the old rents as • were afcertained, and that nothing was to be paid in refpe^t of thofe premifes, the ancient rents of which were not known ; and they contended that an iffue ought to be direfted. On the part of the plaintiff it was infilled, that here was no allegation of any certain accuftomed payment protecting the occupier from this payment at the date of the decree, and flatute ; that they allege, merely that at particular times there were particular payments with a general alleg-stion, that fome lefs fums than after the rate, of two (hillings and ninepence in the pound were paid, 'not referring to the particular fums before flated, as thofe lefs fums. The queftion, therefore, whether an ac- cuftomed payment exifls, is not raifed upon the record : it was further indfled that there being no rents fubfifting, the payment ought to be calculated, not upon the whole rent, but upon the prefent a6lual value of the premifes to be let ; that the houfes being taken down, and much more valuable premifes ereQed on their fcite, it could not be alleged that the premifes were the fame, or that the former rent could be the fair criterion. On t-h. IX. Of Tithes in London. 24.3 On the part of the defendants it was urged, that the cuftomary payment was fufficiently dated to enable the defendants to go Into evidence ; that the refult of the authorities is, that if a defence appears by the anfwer, the court will not make a decree againfl it ; but will put it in a courfe of inveftigation ; that the diflindion between- rent, and value is perfeclly underftood, both in common par- Jance and legal acceptation, and that it would be doing great violence to the conflruction of the term rent, to give it the fenfe of the word value. But .Sir AVilliani -Grant, M. R. was of opinion, that no fufficient ground had been fliewn by the defendants for diredling an iffue, and decreed that the payment fhould be at the rate of two (hillings and ninepence in the pound on the value, and directed a reference to the maiLer accordingly ; his honour obferving, that he Vv'as not aware of any cafe in 'which an iifue had been granted, where the defendant did not fpecifically ftate what was the cuftomary payment upon which he meant to infift ; that this was not done by the anfwer either directly, or by reference ; triat in the cafe of the warden and minor canons of St. Paul's v. Morris juft cited, the lord Chancellor was of opinion, that no fpecific cuftomary payment was fet up, becaufe two different payments were fet up ; that here the objection is as ftrong where no fpecific payment is alleged : in that cafe, the different payments deftroyed the fpecification ; in this cafe there is no fpecification at all : that no exemption being claimed, and no cuftomary payments fufiiciently alleged^ the re£lor was of courfe intitled to a decree, after the rate of tv/o fliillings and ninepence. I'hat the queftion then arofe on how many pounds was the tithe to be taken ? That the premifes not being in leafe no rent was referved, all the property v.as in the occupation of the owners. Upon what was the payment to be ? To which it might be fairly replied, that according to R 2 adjudged 244 Lazv of Tithes, Ch. IX. adjudged cafes, rent means either aclual rent, Gr efti* mated rent with reference to the value, according to the claufe of the flatute, to which it is applicable. That in the cafe of Grant v. Cannon (j-)^ payment for tithe of a houfe, in the occupation of the ovvner, was diredled to be according to the value admitted in that inftance to be fixt J pounds per annum, without any enquiry being direfted at what rent the houfe had been laft let, or what tithe was lad payable. That in a variety of cafes of this clafs the decree exprelles, that the defendant fliail account and pay after the rate of two fliillings and ninepence iii the pound for the yearly rent, or value oi their premifese Not that the meaning is, that where there is a yearly rent, recourfe ihall be had to the valu€ \ but that the defendant is to account according to the rent, if there be rent, and according to the value, if there be no rent. That this con- flru6lion is founded upon a found principle ; that in cafes, to which none of the provifions of the flatute apply, the reftor's claim refts upon the firfl general claufe making all houfes generally liable to tithes ; that il the general ob- jeft were to fubjecl all houfes, particular words are to b'^ eonflrued fo as to efiecluate fuch general purpofe, with, reference to which, there is no reafon for diflindlion be- tween fuch houfes as are let and fuch houfes as are not let; on the contrary, the exprefs exemption of feme houfes in the flatute that never have been let, for- cibly im.plies, that if that exemption were not expreffed, all houfes, whether let, or not would be Hable ; that it does not follow where no rent is due, in the flrift fenfe of the expreiTion, that therefore no tithe is due ; becaufe on the whole, lefs violence is done to the ftatute by con- ftruing the word rent in different fenfes, as it is ufed in, different claufes of the flatute, than by holding all fuch (4 Gwin. 54U houfes Ch. IX, Of Tithes hi Louden. 245 houfcs as were never In leafe to be without the flatute ; that to principle., and authorities there was nothing to be oppofed, but a diftuni of Lord Coke, for it was not in point in the caufe, that where houfes have never been let, that is a iafus omijfus and no tithe it payable ; a propofition which i?an by no means be maintained (/). In a cafe arifing upon new buildings erefted upon the fcite of old houfes, the defendant fet up a cuftomary pay- ment to proteft himfelf from the claim of the full (tatuto- ry tithe; he eflablilhed that defence as to three of the old hojjfes; and the court feemed to have held, that a cu(lomary payment protected any houfes on the fame fcite, as the premifes were altogether out of the flatute, if any cufto-' mary payment at the time of the flatute were eflabhfhed. The defendant failed in eflablifhing any cuflomary pay- ment as to the fourth houfe, and the court, inflead of di. reeling an enquiry at what rent the fourth houfe was lafl let, immediately decreed, that the defendant fliould ac- count and pay at the rate of two fliillings and ninepence in the pound for the premifes, where the old houfe for- merly flood, according to the yearly value ; and took it to be fo clear, that the decree was pronounced a^ainfl the defendant with cofls {11). On the fame principle, in another cafe It was decided to be no defence to a demand for tithe of a houfe in Lon- don, that it ftood on the fcite of old houfes which never paid any tithes. That if it had been Ihewn, that a lefs rate had been paid for them, it would have been a defence (/) Antrobus v. the Eaft. India company, cited ibid 12. ompiiiy, 13 Vef. jun. 9. See («) Williamfon v, Gofling^^ aiip iviiK'.ftoii V the Eall ladia Gwill. 592. R 3 to 246 La\v of Tithes. Ch. IX~ to that extent ; but an entire exemption lliall not prevail. That all houfes were intended by the decree is evident from the claufc which directs, that dwelling-houfes con- verted into warehoufes, and warehoufes converted into dwelling-houfes fhall flill pay as m.anfion-houfes ; and alfo from the exemption in favour of noblemen's houfes, and the h^-Us of companies. That as to the claufe ex- empting detached fheds, and other buildings of a fimilar nature, this is not an exemption in favour of the land j for buildings, and not the land are the fubjeft of the aO:, and this privilege does not extend to the building when altered to another defcription (y^ So it has been exprefsly decided, that a fned or other building exempted by the decree fhall be difcharged of tithes no longer than the fame is continued a iiied, or fuch other building ; for that if it be converted into a dwell- ing-houfe, it IhaU pay tithes according to the true value (w). A cuflom, that the parifnioners of St. Leonard, Fofter- lane, within the precind of St. Martin-le-grand, fhall pay^ to the parfon two fliillings in the pound of the rent of their houfes by v/ay of tithes, is valid; for it may have had a lawful beginning ; it m^ay have been a modus for all the tithes of the land, upon which the houfes are built, and though It be afterwards built on, that fnall not qiveft the parfon of his right (.v). The flatute 37 Henry the eighth, c. 12. for regulating ^he payment of tithes in London, extends both to lay im-- (-y) Bramilon v. Heron, 1054. GwilL 131^. {^) Dr. Grant's cafe, Gvvil.l,. (■jy) Ivatt V. Wa.-ren, GwilL 259. 11 Co. 16, Ch. IX. Of Tithes in London, ia,*J' propriators, and fpintual perfons; but the ftatute 22 and 23 Car. II. for the maintenance of parfons, vicars, and curates in thofe pariihes which were deflroyed by the fire of London, e^^ends to preaching minifters only (7> The remedies for the recoveiy of the tithes in London will more properly come under difcuffion in the next and laft chapter, which will treat of the remedies for tithes in general. {y) Ward v. Hilder, Gwill. 538, R 4 CHAP. C S4a ) CHAPTER THE TENTH, Rejnedies fcr the Reco'very of Tithes or their Value^ EM.EDIES for tithes, or their value are in thia countiy adminiflered by various judicatures ccclefiaftical and temporal, legal and equitable : They may alfo in certain cafes be enforced by fumm.ary procefs. I fiiall therefore confider firlt the jurifdiclion of the fpiritual courts relative to thisfubjed; next the jurifdidion of the temporal courts, comprehending the courts of common law, and courts of equity. I fliall then treat of the nature of evidence in regard to tithes ; and of the cofts of fuits relative to this fpecies of property. I fhall then point out the mode of enforcing the payment of tithes by fummary procefs. And laftly, I fhall fhew in what manner tithes are recovered in the city of London. I. The law has been long fettled, that the ecclefiaftical courts have authority in fome cafes to determine the right to tithes, and in all cafes to entertain fuits refpeding the fubtradion, or withholding of tithes \ and fuch their autho- rity is confirmed by feveral acts of parliament (ji) : But the power of the fpiritual tribunal to decide upon the right to tithes, exifls only in thofe inflances, in which the right comes in queflion between fpiritual perfons, or their refpedive baiHfFs, or fervants (/»). Between fpiritual men and laymen, thefe courts have a jurifdi£lion only to compel [a) 13 Ed. I ft. 4. or rather c. 13. 9 Ed. 2» 27 Hen. 8. c. 20. 32 (3) Gwill. 1566. Year book, Ht-B. ^. c, 7. 2 and 3 Ed. 6. 11 a. pL 7. the Ch. X. Remedies for the Recovery of Tithes, Isfc. 249 the payment of tithes, when the right is not in controverfy, but merely the fad whether or not the tithes allowed tq be due have been fubtrafted, or withdrawn (<:). This is a tranfient perfonal injury, which may be redreffed in the fpiritual court by the recovery of the tithes, or their equi- valent. Agreeably to this diflinction, if a difpute arife between two parfons to which of them the tithes belong ; whether to the'one by parochial right, or to the other as a portion be- longing to his redoryby prefcription, and they both claim by prefentation under the fame title, fo that the right of patronage be not in controverfy, the right to fuch tithes may be determined in the ecclefiallical court (d). Such alfo is the law, where the queflion arifes between the parfon who is patron, and the vicar, whether certain fpecific tithes belong to the parfon, or vicar. The fpirituaj court may degide between them (^). If the right to tithes is controverted between two clergymen, who have been prefented to the fam£ church by feveral patrons, in that cafe the fpiritual court hath no jurifdidion to determine the right to the tithes, if they amount to the fourth' part of the annual value of the church ; but the title Ihall be determmed in the temporal court : yet if the tithe in queftion do not amount to the fourth part of the yearly value of the church, the ecclefi- altical court hath in that cafe authority to decide the right. And if thefe fpiritual perfons claim both under one patron, there, although the whole tithes are the (c) Degge, p. 2 c. 26. 3 Bl. (e) Degge, p. 2. c. 26- Noy, Com. 88. Sc: GwiU 7, and 106. 147. Moor, 907. Vid. Drake v, (r/] Degge, p. z, c. 26. Taylor, I Stra.87, fubjec^ *^G Law of Tithe s» Ch. X. fabjecl of conrroverfy,, the fpiritual court may detemm« ^e title to theni (/). But if 5 in a controverfy between two fpiritual perfons relative to the right of tithes, a queftion is involved in regard to the boundaries of the parifnes, it exclufiveiy be- longs to the jurifdidion of the temporal courts to deter- piine it &). But the rule is not univerfal, that where the parties are both ecclefiallicks, the courts of law will not grant a pro- hibition ; for, though both parties be of that defcription, yet, if either of them infift upon a deed, or other matter properly triable at common law, a proliibidon will cer- tainly lie {h). Thus, in fpecial cafes^ the fpiritual court may de- cide upon the right to tithes ; but its jurifdiclion to hold plea for the fubtradlion and withholding of tithes is gene- ral, and is of remote antiquity, and, as I have juft ob- fsrved, confirmed by various ftatutes ; in particular, by the tlatute, or rather writ of circumfpcd:e agatis (i) it is declared, that the court Chriftian lliall not be prohibited from holding plea Ji rector petat ver/iis parocJnanos obla- tiones, et decimas debitas, et confuetas. But if any difpute aiife, whether the tithes fued for be due and accuftomed, it cannot be decided by the ecclefiaf- tjcal court. It muft be determined by the king's courts at common law. It is true, that a ?nodus deciniandi may (/) ^^gS^> P- 2- c. 26. 862, Willes's Rep. 680. {s) Ibid. (0 13 Ed- 1. ft' 4. or ratker [h^ Cheefeman v. Hoby, GwiU, 9 Ed. 2. J^8 Ch. X. Remedies for the Recovery of Tithes, ^c. 251 as well be the fubjeft matter of a fuit in the ecclefiaf- tical court, provided it be admitted between the parties, as the tithes themfelves. Thus, where the defendant in a fuit in the ecclefiaftical court for the fubtradlion of tithes, filed a bill in equity to eftabliHi a' modus, and on the mtTe fuggellion of a modus, moved for an injundion to flay the proceedings in the ecclefiaftical court, lord Hard- wick C. refufed the injundion recognizing the right of the eccefiafdcal court to retain fuits for tithes,, whether at the inflance of a fpiritual perfon, or lay impropriator, and that as well for a modus, if not denied, as for tithes in kind {k). But If the modus be denied In the fpiritual court, the neceffary effect of fuch denial is a transfer of the jurifdlc- tion; the ecclefiaftical court cannot proceed propter defectum triationis ; the modus muft be tried at the common law (/}. The principle, upon which the fpiritual courts are prohi- bited from the trying of modufes, is that fuch queftion af- fefts the temporal inheritance, and the decifion muft bind the real property ; nor will the lav/ fuifer the exiftence ot fuch a right to be decided by the fentence of any indivi- dual judge, or without the verdict of a jury ; and, more- over, the ecclefiaftical, and temporal laws differ in refpe£i: to the time of limitation ; according to the firft forty years conftitute a valid cuftom ; whereas by the fecond it muft have fubfifted beyond time of memory (jii). But although one of the parties to a fuit refpecting tithes In the fpiritual court be a layman, if he do not infift (i) Rotheram v. Fanfliaw, Noy, 81 Hctl. 133. i Vent, 32. GwilL 809. 3 4tk 628. Scott Blacket v. Finney, Gwill. 6Qi. V. Wall, Gwill. 431. Hob. 2^7. Bunb. 176. (/) Gib?. Cod. 6cj\. Hob. 247. (/) Glbf. Cod. 69U on 2$2 Lazu of Tithes. Ch. X, on a modus, or fome other matter propedy triable at' the common law, fuch court fliall determine the queflion, and a prohibition fhall not be granted {jii). So the fpiritual court m.ay take cognizance of a refufal («) to fet out tithes j and after the tithes have been fevered, yet by the flatute they remain 'CiiO: fubject of fuit in the fpiritual court (o) ; and though the tithes be in fad fet out, if the parifliioner refufe to let the parfon come for them by the ufual way, he may fllll fue for them in the fpii'itual court (/») ; for a difturbance in the road for the carriage of tithes, is a queflion of ecclefiaftical cogni- zance {cj) : the fpiritual court having the jurifdidion of the tithes, w^hich are the principal, fhali alfo have jurifdidion of the wiiy, through which it is neceffary to convey the tithes. In tliofe inftances, in which the original matter be- longs to the jurifdiclion of the fpiritual court, the decifion of other matters which depend upon it belongs to the fame tribunal, though triable by the common law (r) ; and though, as we have jud feen, if after the tithes have been fet out, the owner, or occupier of the lands detain them, a suit may be maintained againll him in the fpiritual court ; yet, if a Jlranger take them after they have been fet out, the pai"fon's only remedy is by an adion at law againfl; him (j). So it has been held, that where fraud is ufed to deprive the parfon of his tithes, it is not cognizable in the fpiritual court, but is to be remedied by an action on the cafe ; as (m) Cheefman v, Hoby, Gwill. (^) Gwill. 1572. Anon. 862. Willises Rep. 680. (5^) Halfey v. Halfey, Gwill. («)GaIev Ewer, Gwill. 1579. 468. 1 Com Rep. 22. (r) Roberts's Cafe, Gwill. 233, {0) Gwill. 220. Cro. Eliz. 843 12 Co. (i^. \id. Leigh v. Wood, Gwill. 205, (j) Leigh v. Wood, GwiH* and ibid in not, 205. 7 where. Ch. ^. Remedies for kecG-vcry of Tltbes^t^c, ^^'^ Vhen there was a cuftom, that the parfon was to have every tenth land for the tithe of corn, beginnmg from fuch land as is next to the church, and the occupiers of the land being av.T.re what land would be the parfon's, v/itli the view of defrauding him did not till, nor manure, nor fow his land as they did their own, by reafon of which fraud the parfon fued in the fpiritual court for tithes in kind, that is the tenth cock of all the corn, and a prohi- bition was awarded, on the ground, that the fraud was to be redreifed by an adion at law (/). Such is the nature of the ecclefiaflical jurifdiction rela- tive to this fubject ; and, in cafe of a fuit for fubtraclion of tithes in the fpiritual court, fuch jarifdiQ:ion is effec- tually aided by the ftatutes 27 Hen. eighth, c. 20. and 32 Hen. eighth, c, 7. which enaft, that upon complaint of any contempt or mifbehaviour to the ecclefiaftical judge by the defendant in any fuit for tithes, any privy-coun* fellor, or any two juliices of the peace, or in cafe of difobedience to a definitive fentence, any two juftices of the peace may commit the party to prifon, without bail or mainprize, till he enters into a recognizance with fuf- eient fureties, to give due obedience to the procefs and fentence of the court. Farther, by ftatute 2 and 3 Ed. fixth, c. 13. it is enact- ed, that if any perfon fhall carry off his predial tithes be- fore the tenth part is duly fct forth, or an agreement is made with the proprietor, or fhail wihingly withdraw his tithes of the fame, or fhall flop or hinder the proprietor' of the tithes, or his deputy, from viewing or carrying them away, fuch offender fhall pay double the value of the tithes, with cofts, to be recovered before the ecclefiaftical judge> according to the king*s ecclefiaftical laws. (/) Steb? V. Goodlock, Gwill. 158. Mcor, 913- II. TI;e dij4 Laii} of Tithes.- Ch. X* ll. The jmifdictlon of the temporal courts, in refped to this fubjeft, is next to be confidcred: And firft that of the courts of common law. This jurifdiclion is exercifed by the courts of common law in a variety of forms. The right to tithes is difcufled and decided by them in prohibition, and in thofe a£lions mentioned in the feveral ftatutes of 3 2 Hen. eighth, and 2 Ed. fixth, I have above alluded to. i. This fpecies of prohibition is a writ ifluing out of the temporal courts dire£led to the judge and parties in a fuit in the fpiritual court, commanding them to ceafe from the pro- fecution of it, on a fuggeftion either that the caufe origi- nally, or fome collateral matter arifrng in it, does not be- long to that jurifdiftion ; fuch prohibitions may be obtain- ed out of the courts at Weftminfter, the courts of great fef- fions in Wales, or the counties palatine (z/). The party aggrieved in the fpiritual court applies to the temporal court, fuggefting the nature and caufe of his complaint, in being drawn ad nliitd cxamen by a jurifdiclion, or man- ner of procefs difallowed by the laws of the kingdom ; if the matter alleged appear to the court fufficient, the writ of prohibition immediately iiTues, comm.anding the judge not to hold, and the party not to profecute the plea ; if the point be too difficult to be decided on motion, the party applying for the prohibition is directed, in order that the matter may be more folemnly determined, to declare in prohibition, that is, to profecute an action by filing a declaration againft the other, on a fiction, which is not traverfable, that he has proceeded in the fuit below, notwithftanding the prohibition ; if upon demurrer and argument, the court fnould hold the matter fuggeflcd to be a fufficient ground of prohibition in point of law, then judgment, M'ith nominal damages, fliall be given for the («) Degge, p. 2. c. 26. party Ch- X. Rejiwdles for ibc Recovery ■of Tithes^ l^c, 255 party complaining, and the writ of proliibltion (hail iiTue : On the other hand, if the .temporal court ihall be of opi- nion, that there is no competent ground to refiraiu the jurifdidion, then judgment ihall be given againfc the party applying for the prohibition, and a writ of confultation fhali be awarded, fo called, becaufe upon deliberation,. and confultation the judges find the proWbition to be ill found- ed, and therefore by this writ they return the caufe to its original jurifdiftion to be there determined {y). But although there may be l^iiiicient ground in poirit of law for granting the prohibition, yet, if the fai5l which gave rife to it, be faifified, the caufe fhail be remanded to the prior jurifdiftion 5 and, in order to put fuch facl m. a cGurfe of trial, the party prohibited muO; appear to the prohibition, and talce a declaration, which midl al- ways purfuf the fuggellion, and fo plead to iiTue upon \l^ denying the contempt, and the fact upon which the pro- hibidon was gi^anted ; and if that ilkie be found for the defendant, he fliall then have a writ of confultation. The writ of confultation is alfo g-ranted by the court, withosit miy acHon brought, when, after a proMbition ifTued, npoji more mature confideration, the court are of opinion, thiit the matter fuggefied is not a good and fufScient grounil to ftop the proceedings below {yo). I have already intimated, that if the right of patronage, tkio, boundanes of parifh.es, or the exLdtJnce of a moilus come in contro%^erfy in the fpirituai court, thofe are fuS- cient grounds for a prohibition to ifTue ; but there are many crther iuftances, in which fuch writ ilrali be granted ; as if it be alleged in the fpirituai court, ihrv the Linds, oi (»} 3 Bl. Com. I ■ ; . ■ . «5& Law of Tithes, Ch. X« which the tithes are claimed, are difcharged of tithes by the ftatute of 31 of Henry eighth, or any other ftatute, a pro- hibition lies, becaufe it properly belongs to the judges of the common law to expound all flatutes (x). In like man- ner, if the fuggeflion be grounded on the ftatute of 2 Ed- ward the fixth relative to barren grounds^* the writ iliall ilTue (}') : So, if the parties fue in the fpiritual court for the tithes of articles not tithable by the common law, or for the tithes of great wood above twenty years growth, that is a fufficient ground for prohibition (z) : So, if the fpiritual court, in the difculTion of matters clearly within its cog^ nizance tranfgreiTes the bounds prefcribed for it by the laws of England, as where it requires two v/itncfTes to prove a releafe of tithes ; or refufes to admit the releafe as a defence at all, in fuch cafes alfo a prohibition will be awarded ; for, as the fa 61 of executing a releafe, or the effect of fuch releafe, is not properly a fpiriti;al queftion, but only allov.'ed to be decided in thofe courts, becaufe incident or acceffary to fome original queftion clearly within their jurifdiction ; it ought therefore, when the two laws differ, to be decided, not according to the fpi- ritual, but the temporal court ; elfe the fame queftion might be determined different ways according to the court in v.hich the fuit is depending, an incongruity which no wife government ought to tolerate, and which is therefore a ground of prohibition (a). So, if the fpiri- tual court v.'ill not fuffer the tenant to plead to the right of incumbency, a prohibition will lie (by Nor fhall a confultation be granted, notwithftanding the infufEciency of the replication, if it appear to the court {x) Degge, p. 2. c. 26. 666. Hob. l8§. (j) Ibid. {b) Green v. Penilden, Gwill. (2) Ibid, and Gwil], 4. 1 568. (a) 3 Bl. Com. J12. Cro. Eliz. upoa Ch. X. Remedies for the Recovery of Tithes^ ^c. 257 upon the whole matter, that no tithes are payable (f ) : Nor even if the prohibition be erroneous, fliall the defendant have a confultation, if it appear that the fuit in the eccle- fiaftical court was not well founded (^d). Nor is it necef- fary in prohibition, that the proof fhould be precife ; it is fufficidit, if it appear, that the ecclefiaftical court ought not to entertain the fuit ; therefore, if a prefcription be laid that the parfon holds a hundred acres of land in fatis- fadion of tithes, and the evidence be, that he holds fixty acres only in fatisfadtion of them, that is fufficient, be- caufe the fubflance is proved (^). If a modus be nqt proved as laid by the plaintiff in prohibition, there mull be a verdi£l for the defendant ; but if any modus be found, though different from that laid, that is a valid ground for refufmg a confultation (/). So, after a confultation has been granted, but not upon examination of the matter, another prohibition, notwithllanding the (tat. 50 Edw. 3, c. 4. fhall be awarded (g). So, after a confultation, 9, prohibition may be granted, if there be any material ad- ditions inferted in the libel (/>). Pending a fuit in prohi- bition, on fuggeftion of a modus, there can be no fuit in the fpiritual court for tithes, which have fubfequently ac* crued (/). But where the modus fuggefled appears to be void, un- reafonable, or infufficient, the court will not grant a pro- hibition (i). (c) Gwill. 275. 217. Cro. Eliz. 73(5. (d) Gwill. 394. {/?) Earl ef Clancard v. ^a^r (f) Auften V. Piggot, Gwill. Denton, Gwill. 363. 217 Cro. Eliz. 736. Be:il v. (;) Linge t. Guntfcr, Gwill. W*bb, Gwill. 220. Cro. Eliz. 819. 373. ^/) Brook v.Richardfon,Gv\ ill. {i) Fletcher y. WUkinfon, .1^03. I Term Rep. 427. Gwill. 575"-. (^} Sibley v;. Crawley, Gwill. s F 258 Law of Tithes. Ch. X. . If either the ecclcfiaflical judge, or the party fhall pro- ceed after fuch prohibition, an attachment may be had againfl them, to punifh them for the contempt, at the dif- cretion of the court that awarded' it ; and an action will lie agaiiiil them to repair the party injured in damages, 2. In refpeft to actions maintainable in the courts of com- mon law for tithes, they owe their origin to the 32 Hen. eighth, c. 7 ; by the 7th feclion of which it is enacted, that any perfon having an eftate of inheritance, free^iold, term, or interefi: in tithes, and being diiTeifed, or otherwife kept, or put out of pofieffion thereof, fhall have fuch remedy in the temporal courts for recovering the fame, as the cafe may require, in like manner as they may for lands, tenements, and other hereditaments. By force of this ftatute, therefore, an aQion of ejectment will lie for tithes (/). Another fpecies of remedy in the temporal courts for the fubtraction of predial tithes is provided by the flatute of 2 and 3 Edw. fixth, to which I have juu referred ; whereby the treble value of this fpecies of tithes fo fub- traded or withheld, may be fued for in the temporal courts j and, in truth, fuch treble value is not more than an equivalent to the double value to be fued for in the ecclefiaftical court : for a party may fue for and recover in the ecclefiaftical court the tithes themftlves, or a re- compenfe for them by the ancient law, to which the fuit for the double value is fuperadded by the flatute. But as no action lay in the temporal courts for the fubtradion of tithes themfelves, therefore, the ftatute gave a treble forfeiture, if fued for there, in order to make the courfe of jufdce uniform by giving the fame repai-ation in the one court, as in th© other (;//). (/} Sec Sclw. L. gf Ni, Pri. ici^Q, 1070. {m) I Bl. Com. S9. Uoon Ch. X. Remedies for the Recovery of Tithes^ ^c. 259 Upon this flatute, it is to be obferved, that an opinion originally prevailed, that as the perfon to whom the treble value is thus given, is not fpecified, fuch value of right be- longed to the king: But in Eafter term, 29 of Elizabeth, it was adjudged, on an information in the court of exchequer, that the treble value did not belong to the crown, but to the party interefted, v/ho may maintain an action of debt for the recovery of the fame ; and, in conformity to this dccifion, an action of debt, at the fuit of fuch party, has been ever fince confidered as the proper remedy («). Yet this remedy, by the ex'prefs terms of the ftatute, is i^cllricled to predial tithes, and fhall not be extended to fuch as are mixt, or perfonal. Thus, where in an adion 6n this ftatute for not fetting out the tithes of cheefe, calves, and lambs, the plaintiff obtained a verdict ; on mo- tion in arreft of judgment, it was objected that the tithes in queftion "were not predial tithes, and conf?Guently not within this flatute, which being penal, ought not to be extended by implication ; and of this opinion was the whole court. So where the plaintiff declared for not fetting out predial tithes, and other tithes, as the tithes of lamb-wool. Sec, and the jury found a general verdict, judgment was arreded upon the fame objection (0). But an action of debt may be maintained on this ftatute for not fetting out ftnall tithes, as well as great tithes, provided they are pre- dial tithes (/>). This fpecies of adion may be brought by the rector, or by one (q) or more (r) farmers of the red:or)^ If tha re6tor be entitled to two parts, and the vicar to a third (n) Selw, L. of Ni. Pr. IC73. 9'5* (0) Selw. L. of Ni. Pr. 1074. (^) Keiit v. P^akevon, Cro. (/>) Selw. L. ofNi. Pri, 1075. •^'"^- l'^' (y) Day v. Pcckwvl], Moor, S 2 part i6o Law of Tithe-. Ch. X- part of the tithe, and the parfon and vicar by fevcral ] cafes demifc their refpedtive fhares to a third perfon, fuch leiTee may maintain an action for not fetting forth all the tithes. ^ The right to tithes accrues immediately on the feve- rance ; confequently, this action muft be brought by the perfon intitled to the tithes at the time of the feverance. Thus, where A. executed a leafe of tithes to B. on a day fubfequent to the feverance, but before the tithes were carried away by the occupiers of the land, it was adjudged that B. could not maintain an action on this itatute {j\ The action can be brought by the party grieved only ; thus where this aftion was brought by the plaintiff for himfelf and the queen, judgment was arrcfted (/). A. being pof- felfcd of a leafe of tithes, in right of his wife, as executrix of her former hufband, granted " all his right, title, and interest ^' in the r.forefaid tithes to I. S. ; it was holden that the grant was good, and that I. S. might maintain «n action on this ftatute for not fetting out tithes (ji). If an executrix of the leflee for years of a re£tory marry, the hufband and wife may join in an action on this fta- tute (y'). As the action in this ftatute is a perfonal action, tenants in common of tithe muft join as plaintiffs. This action may be maintained by executors, for it is within the equity of the ftatute of the 4 Edw. third, which gives to the executor an action of trefpafs de bonis teftatcris^ but fuch adion will not lie againji executors (le^). ■ is) Wyburd v. Tuc-k, i Bof. affirmed on error, Greenwood's aod Pull. 450. cafe, Clayt. 28. f?.id per Twifdenj, . (;) Johns V, Came, Moor, 91 1. J. to have been adjudged, i Sid. Cro. Eliz, 621. S. C. 407. (?<) Arnold V. Bidgood, Cro. [iv) Mr. J. Moreton's Cafe, Jac. 318. I Ventr. 30. 1. SJd. 407. 2 Keb. iy) Beadles and wife, v. Sher- 502. S. C. 1 Sid. 88. but fee man, Cro. Eli?-. 613. Judgn^ent I Vern. 6c. Generally, Ch. X, Remedies for the Reco^-cry of Tithes, '). On this evidence the lands will be prefumed to be chargeable, unlefs the con- trary be fhewn on the part of the defendant, and though they have never paid tithes, that alone will furnifh no defence, if the declaration ftate that tithes were yielded and payable within forty years next before the pafling of the ftatute {q) : though in a cafe in which the declara- tion merely ftated that they were yielded, and paid within forty years next before the ftatute, fome evidence of pay- ment was required (r). And though a layman cannot (/) Vld. Com. Rep. 651. (0) Wyburd v. Tuck, Gwill. (m) Kynafton v. Clarke, 5 i-5i7' T. R. 265. Gvvill. 960. (/>) VJd. fiipr. 123, T24. («) Bull. N. P. 188. Blfhopv. iq) Mitchell v. Walker, 5. Chichefter, Gwill. 13 16. 1 Bro. T. Rep. 260. Ch. Rep. 161. Peake's L. of (/-) Lord Mansfield v. Clarke E i\ 4 1 3 , 4 1 3 . ciled ihid. 264. 4 prefcrlbe 4/0 Lwju of Tithes, Ch. X^ prefcribe in a ?ion decmando ; yet if the tithes belong to a lay impropriator, and the land in queftion has been con- ftantly ploughed, and no tithe paid, it may be ground foi^ the jury to prefume a grant by him, and feverance of the land from the redory : In this cafe, therefore, it will lie on the defendant to lliew that it has been conftantly be- fore in a flate of tillage {/). In cafes where the lands are difcharged from titlies by a modus, the evidence will be of the fame nature as in all other cafes of cuflom, to which I have above alluded (/). But where the defendant contends that the lands are wholly exempt from tithes, he muft fhew the ground of difcharge ; for the mere circumftance of their not having been before charged is not fufficient, becaufe a layman cannot fet up a prefcription de 72071 decimando without de- ducing his title from fome ecclefiariical perfon ; though he may fet up a modus without any fuch aid (u) : And evidence of a modus will fupport a plea of nil debet to an action of debt for tithes of hay and corn {y). Where the exemption from tithes is claimed of lands belonging to the monafleries dilTolved by the llatutes 31 Henry the eighth, c. 13. and 32 Henry the eighth, c. 24, fuch lands mud be fhewn to have belonged to a religious houfe dilTolved by one of tbofe flatutes ; and that while in the pofleifion of fuch houfe, they were exempt from tithes. (j) Vid. Com. Rep. 648. 3 (;>) Peake's L. of Ev. 414. Aik. 628. 5 T. Rep, 264. {-u) Charry v. Garlaad, GwiU. Peake's L. of Ev, 414. 951. ^ (/) Supr. 148, 149. The Ch. X. Ps^cmcdies for the Recovery of Tithes, '), or the regiftry of the archdeacon of the diocefe {cf) ; and unlefs it come from qtiq. of thofe quarters, \t cannot be admitted as evidence : therefore, it has been decided that a paper purporting to be a terrief found in the charter cheft of Trinity-college, Cambridge, v/ho were land-holders in the pahfii, was no evidence to difprove a modus (r). But as againft one of the preben- daries of Litchfield, a terrier found in the regiftry of the dean and chapter of Litchfield, was held fufiicient evi* («) Travis v. Chaloner, GwllL GwilU 1593, and 3 Burn. Eccl, :238. L. 379, (0) Eeufon V. Olive, Gwill. {q) Potts v. Durant, Gwill. 702. I45<^' 3 Anftr. 789, (/) Atkins V. Hatton, GivilL (r) Gv.ilU X406. X406. 2 Anflr. 586. See alfo T 2 dence 276 Law of Tithes, Ch. X. dence (j) ; for though m general, an ancient manufcript, the adual execution of which cannot now be otherwife proved, receives authenticity from its being found in that place, in which fitch an inftrument ought properly to be depofited ; yet where a conueclion can be eilabiifhed fo as reafonably to account for the cuftcdy in which the iriftruments are founds the courts have foniewhat relaxed the rule, and admitted them to be read, though not com- ing fi-om exaftly the mod proper repontory ; thus in that cafe the court of king's-bench proceeded on the ground of the connexion betv/een the terrier and the cuftody in which it was found, and a ftrong corroborating circum- flance in that cafe was^ that the terrier was found annexed to an old leafe of the prebend of nearly the fame date. But when the cuilody is merely private and unconnected with the fubjed matter, the courts have never gone the length cf admitting fuch papers in evidence. Thus an inftrument, purporting to be an endov/ment without the feal, and another purporting to be an mfpcximus thereof under the feal of the bilhop, were rejected as evidence, inafmuch as they came out of the hands of a private perfon wholly unconnefted with the matters contained in them (/). It has alfo been hfeld, that as againfl the parfon, a terrier is in all cafes ftrong evidence j but it is never admitted for him, unlefs it be figned by the churchwardens, and in cafe they are of his nomination by fome of the fubftantial inhabitants of the parifh alfo ; and in the cafe of a bill filed by a vicar againft the impropriatrix of a re£lory, the principal objed of which w^as the recovery of agiftment tithe, in fupport of the claim, feveral terriers were pro- duced, fome of which flated the vicar to have all fmall {s) Miller V. Fpfter, Gwill. (/) Potts v. Durant, Gwill. 1406. in not. Vid. Peake's L. of 1450. 3 Anftr. 789. E.88. tithes Ch. X. Remedies for the Recovery of Tithes ^l^c. 277 tithes generally, andothers gave him exprefsly, andin terms, the herbage of barren cattle. The former of thefe terriers was figned by the churchwardens only : And it was ob- jected firpL, that it Was no terrier at all, becaufe made by the churchwardens only, and not figned by the vicar : that the miniller's fignature was elTential to o-ive the in^ ftrument the character of a terrier ; that where it wanted that fignature, the court had often refufed to receive it, though it came from the minifter himfelf : 2dly, that even fuppofmg it to be a proper terrier, yet that it could not be admitted in evidence in that caufe, as againfl the reftor, becaufe not figned by any perfon claiming under, or on the part of the redor. But the court were of opinion, that the terrier v/as admilljble, for that it had been recognized in the chara£ler of a terrier by the fpiritual court : that fuch imperfed terrier had been often received of late in the court of exchequer : that it was true lord C. B. Skynner had once rejected it, but that he had afterwards changed his opinion, and fmce that time it had been uniformly re- ceived ; that the terrier in queftion was figned by perfons not only in no refpecl interefted ; but whofe duty it was from their official fituation to fign it, and that the want of the vicar's fignature made it (ironger evidence in his favour {11). On the trial of an iffiie whether the defendant by him- felf or his agents was in polTefTion of a certain number of acres of glebe lands belonging to the plaintiff, as reftor of certain parifhes therein mentioned, a map made under the directions of the lord of the manor for the time being, was produced by the defendant, the then lord of the manor, and was held to be unexceptionable evidence as againft him (^'). (m) Illingworth v. Leigb, (11) Allott v. Wilkiiifon, OwiU. 1615. See Bull. Ni. Pri. GwiU. 1585. 248. T 3 In 278 Law of Tithes> Ch. X. In mod cafes, it would be abfolutely impolTible after a great length cf time to prove the execution of a deed, or even the hand-writing of the parties. It is necefiary that a period oi limitation fhould be fixed, otherwife nev/ queflions would daily arife, and therefore courts of juflice have laid it dov^oi as a rule, that a deed of above thirty years ftanding requires no farther proof of its execution, than the mere production of it, provided the polfelTion has been according to the provifions of the deedj and there is no apparent erafure, or alteration on the face of it (w). A decree made between the fame parties on, the fame point, not appealed from, but figned and inrolled, is con- clufive ; and the rule is fotmded on found policy, which requires, that the decrees of courts of juftice fhould not be repugnant to each other on the fame point of right ; but a decree which is to have this conclufive effect mufl be made between parties who have a competent intereft in the fubjed of it : therefore, in a fuit by a vicar againfl occu- piers for an account of all fmall tithes, a decree in a fuit inftituted in that court by the then vicar, in the reign of Charles the firfi:, declai-ing the plaintiff to be entitled to all fmall tithes under the endowment, was held not to be thus conclufive ; the court obferving, that the fuit, in which that decree was pronounced, was between the vicar and the im- propriator who was the patron ; that one of the parties had an abfolute right, but the vicar though he had the free- hold of the vicarage fiad no interefl beyond his own in- cmnbency : As vicar he could do no a6t to bind the interefls of his fucceffors in the vicarage j Before the {iv). Peake's L. of £. 109. G will, 702, 35ul.N. P. 255, 256, See al£o J5- Ch. X. Remedies for the Recovery of J ithcs^'^c. ^jq retraining ftatutes, he could not have affeded thofe in- terefts without the concurrence of the ordinary, as well as of the patron ; that reafon and policy alike require that the ordinary Ihould be a party to a fuit, the end of which is to bind and conclude tliofe inter ells which the law hath appointed him to watch over and proted • and though the decree which was fo pronounced, was in favour of the vicar's claim, yet if there were not parties fufficient to ft^ftain the fuit, the decree pronounced in favour of the vicar could be no more concluCve than if it had been to the prejudice of his claim ; confidering the decree in this light it has no njore force, in refped to the fucceffors of the vicar who was a party to it, than a decree for an account of the tithes (.v). But in a fuit by the reftor for tithes, in which the de> fendants infifted that the lands were parcel of one of the greater monafteries diflblved by the flat. 31 Hen. eighth, a decree was offered to be read in evidence, in which the ieffec only, and not the impropriator, was a party ; an objection was taken to the reading of it, for that no admify fion of the leffee fliall bind him who has the inheritance, and who was no party to the decree : Lord C. B. Mon, tague, and baron Price were of opinion, it fhould be per- mitted to be read, {fating, that they fliould have made no doubt of reading it, if the leflee had prevailed, and there, fore that they faw no reafon why it fliowld not be read, fni«e he did not prevail : but baron Page M^as of opinion, it ought not to be read, which it feems would have beer; the more correal adjudication (j), It is generally true, thai, (.v) Carr v. Heaton, Gv/iil, (j) Bidiop of Lincoln v. Sir nr ■ 4 a decvv^e 28o Law of Tithes. Ch. X a decree /hall not be read, If it do not relate to the fame lands and title as are in queftion (s). The king's books are conclufive evidence of the value of a living : Thus, where the defendant to a bill for tithes infifled, that the plaintiff had taken a fecond living above the value of eight pounds a year, the defendant was de-. creed to account ; for though the value were in reality- above eight pounds a year, yet it being under that value in the king's books, they w^re held conclufive (<7). But ancient valuations are not conclufive evidence of the value either of lands, or of livings (/;). We have before feen that mere non-payment of tithes, although from time immemorial, is no difcharge, v/ithout ihewing fome fpecial ground of exemption (<:). But in a cafe, in which the plaintiff refled on his common law right of re£tor, and the defendant infilled, that the lands he occupied were formerly part of lands of the diiTolved monaftery of Shaftefbury, and exempt by prefcription, and fliewed the reclor not in the perception of all the tithes ; a vicar in poffeffion of fome ; tenants of the fuit of a manor, and certain demefnes in pofleffion of others ; and alfo other lands, a whole floor, paying none at all ; the court held the inference from that evidence to be, that the redor's right was very precarious, and that it let in every reafonable title which the evidence would fupport. That a portion might exiil againflhim ; and that the defen- dant deriving title to exemption from fpiritual perfons, (^.) Benfon v. Wife, Gwill. Cro. Car. 456 2 Lutw, 1305, 701. Bunb. 284. 17 Vin. Abr. 362. {a) Stump V. AylifFe, Gwill. [b) Gwill. 857. 1240. 1347. 536. SeePy. 237. Cro. Eliz 853. {c) Supr, 164. Ch. X. Remedies for the Recovery of Ttthcs, ^c. 281 might apply it to prefcription (d). But it feems that fuch exemption is not appHcable to a compofition real, or other particular title, without fome fpecific evidence (c) ; yet although immemorial non-payment of any tithes from a diftrict cannot raife a prefumption of an exemption by grant from a lay rector, yet it is flrong evidence to ex- plain the extent of the grant of the rectory, if it be in any degree doubtful (f). Payment of a compofition for the tithes of turnips, whether pulled or eaten off the ground, where neither party confidered it as an agiflment tithe, was held to be no evidence of perception of that fpecies of tithe (g). Receipts for the payment of tithes not figned by the receiver of the tithes himfelf, but me rely by his deputy, have been held to be inadniiffible evidence (/j) : And where a modus of every tenth day's cheefe for a certain period of the year, in lieu of tithe of milk, was infilled on; proof of the delivery of a cheefe at the houfe of the tithe-gatherer, but not to himfelf, was not admitted as evidence to prove perception of the modus, for the dthe-gatherer's authority is perfonal ; the aft of any other perfon not authorized by the clergyman cannot bind his right (/). ■ Although on the trial of an iffue directed by a court of equity refpetling a modus, the evidence on the defendant's part proved a modus to extend to more clofes than were (^) Fryer V. Sims, Gwill. 1356. {g) Gwill. 1462. (e) Ibid, and vid Haywood v. (A) Yate v. Leigh, Gwill. 861. Nlcholls, GwiU. 1 1 20. (/) Wake v. Rufs, GwUl. (/) Lord Petre v. Blencower, 1396. i. Anftr. 295. Gwill. 1484. flated 282 Law of Tithes, Ch. X. dated in the pleadings, that was held not material, and the defendant had the benefit of the proof (J). The teftimony of perfons, though not parties to the fuit, yet if they are interefted in the general queftion, fhall be rejefted; a rule of evidence, to which I have above allud- ed (Ji). Thus to prove an exemption from the payment of tithe wood vAihh. the weald of Kent, all thcff; of wirat- evcr condition or reputation, who either as owners or farmers were entitled to any wood there^ were held in- competent witneiTes ; for the cuflom being alleged to be general through the whole weald^ though they were not parties to the fuit, yet, inafmuch as the cuftom concerned them in their private profit, they were quaji pr.rties, and their teftimony quaft in proprid caufd (/). On the fame principle, in the cafe of a modus claimed for a whole; vill, all thofe within the vill, as parties in int,ereit, though not to the afticm, have been held inadmiffible (jii). The cuftom of titliiiig in other paridies than that in queflion cannot be given in evidence {ii). Whether evidence of a general right can be applied in fuppcrt of an allegation of a partial right feems doubtful ; as where the plaintiff, in a bill for tithes in kind, alleged his title as vicar of the parifh, and as fiich entitled by endowment, prefcription, ufage^ or otherwife to the tithes in queftion in the town- fliips of G. S. and L. S. and the tithable places thereof : In fupport of this allegation, proof was offered of the payment of tithe hay in all other parts of the parifh; namely, in kind, where no tilth penny, and a tilth penny,, {'i) Taylor v. Walier, Gwlll. Denton, Gwill. 360. «99. Bunb. 267. (/?/) Ibid. (i) Supr. 149. («) Erflcine v, RufRe, GvvilL (/) Earl of Clarrickard v. Lady ). So, if the plaintiff file two bills againfl two perfons, where the queftion might have been decided upon one bill, and does not fucceed, both bills fhall be difmiffed with cofts (jf). If to a bill for tithes, the defendant in his anfwer infifl upon a tender before the commencement of the liiit, if, on. the caufe proceeding to a hearing, the defendant is unable to furcharge the complainant, the court will decree the defendant to pay the fum tendered, and difmifs the bill with cofls (r). But, if the fum due exceed the fum tendered, the coils ihall be paid by the defendant (j). (c) Travis V, Chaloner, Gwill. II23. 1237. (r) Hawkins v. Harkncfsj {p) Fryer v. Sims, Gwill. 1356. Gvvill. 868. vid. Strutt V. Baker, ibid, 1430. {s) Worral v, Kichol:-, GwiU. 2 Vef. jun. 6z^. 1302. (y) Caley v. Williamfon, GwilL la 284 -^^"^ ^f Tithes. Ch. X. In a cafe In which the defendant tendered five pounds to the plaintiff, defiring him to take his tithes out of the money, the court declared this to be no good tender (j). Where the plaintiff fubmitted to a demurrer, and then amended his bill, but, before the amendment, thedefendant tendered the tithes, the court decreed the money tendered, but made the plaintiff pay the coils of fuit (ii). On a bill for tithes, the defendant having anfwered, and admitted the plaintiff's right to tithes, and dated what he alleges to be due from him, may move, as of courfe, that the plain- tiff may accept what is fo due, with cods to that time, or proceed at the peril of cofts ; the motion does not re- quire notice, the anfvver is fuificient to fupport it, but the order, when made, muff be ferved (--u) : But a defendant cannot make/z/rZ? motion till the anfwer be filed, for till the anfwer and difcovery be made upon it, the defendant Jias no means of knowing whether the fum tendered be the whole, or not, nor whether he ought to accept the- money paid in (w). If the defendant admit the right to fome part of the tithes claimed, and refift the demand for another part, he will not be permitted to pay into court the value of what he admits, unlefs on the payment of the whole coffs then incurred (a-), As to part of a demand for tithes, the defendant by his anfwer tendered ten pounds, with cofts to the time of the anfwer ; at the hearing, the court decreed a trial at law as to the other part, and referved further directions : after the trial, the court difmiffed the whole bill, except as to (/) Drake v Brooking, Gwill. 1422. See Gvvill. 618 and 6z6. 594. vid. Rumney v. Willis, Ibid, [iv) Hull v. Matthews, Gwill. 775. 1422. 2 Anil. 444. («) Hcnning V. Willis, Gwill. {x) Worrall v. Miller, GwilL 89(>. 1436. 3 Anft, 632. (ij) Parker v. Turner, Gwill. the Ch. X. Remedies for the Recovery of Tithes, ^c. 285^ the ten pounds, which they decreed the defendant to pay with coflstothetimeof the anfwer mclufive, and no farther; and that from the time of ths tender, the plaintiff fliould pay to the defendant the fubfequent cofls of fuit ; which fubfequent cofts wefe to be allowed to, and deducted by, the defendant out of the cofts which fhould be taxed and allowed the plaintiff, fo far as the fame would extend, and the refidue of the defendant's cofts were to be paid by the plaintiff (y). On a bill, to eftablidi a modus, if the defendant de- cline an iffue, the modus fliall be eftablifhed, and the plaintiff (hall pay the defendant the cofts of the fuit. And as to moduffes, which are tried on iffues, and found againft the parfon, they fhall be eftabliflied without cofts (z) ; the fuit in equity is m.erely for the fecurity of the plain- tiff*, and to prevent any farther impeachment of his right to an exemption of payment of tithes in fpecie, and is analogous to the cafe of a bill brought to perpetuate the teftimony of witneffes, in which cofts are never given againft the defendant ; but, in cafe the modus be efta- bliftied, the defendant fhall pay cofts to the plaintiff in refpeft to the proceedings at law (<2). The defendant having infifted on a modus in his an- fwer, moved for leave to pay up the arrears of the modus, with cofts of the fuit up to that time, and the plaintiff to proceed farther at his peril ; the application was refufed on the ground that fuch a tender is never allowed, except where the defendant offers to pay the thing demanded ; (y) Mafon v. Watfon, Gwill. fton, Ibid. 1048. Berners v. Hil- 611. let, Ibid. 871. (2) Anderton v. Davies, Gwill. [a) Clifton v. Orchard, Gwill, 1268. See alfo Cleeves v. Kny- 746. i Atk. 610. that 2^6 Law of Tithes-* Ch. X* that is, the value of the tithes themfelves, and not where he tenders a lefs fum to make good the bar he fets up againfl the demand* The court, however, then faid, that they would confider the offer afterwards m the cofls^ if the plaintiff fhould proceed. He did proceed ; had an iffue directed, and abandoned it. The modus was there- fore taken pro confejjo, and the coils to the time of the former offer were directed to be paid by the d.;fendant^ fince that time by the plaintiff^ without oppofition (^). V. A fummary method of recovering fmall tithes^ under the value of forty fhiUings, is given by flatute 7 and 8 XVill. the third; q% 6. by complaint to twojuftices of the peace : And by another flatute of the fame year, the fame iremedy is extended to all tithes withheld by quakers under the valu^ of ten pounds* By the former cf thefe ffatutes, 7 and 8 Will, third, C. 6. (§ li) all perfons are enjoined to fet out and pay their hnall tithes, and compofitions, and agreements for the fime, with all offerings to the rectors, vicars^ and other perfons to whom they are due, according to the rights, Guftoms, and prefcripdons commonly ui^d within the re- fpe£live pariffies ; and where fuch tithes, offerings^ or com- pofitions db not amount to above the yearly value of forty Ihillings from any perfonj then, if he fhall fubtra£l or withdraw, or any way fail in the true payment of them by the fpace of twenty days, at moll, after demand thereof, the perfon to whom they ffiall be due may make his com- {)Iaint in writuig to tv/o or more juflices of the peace within the county or place where the fame ihall grow due, ©either of whom iliall be the patron of the church or (^) Dean and Chapter of Brif.' i Anftr. z'ji^ ♦0! V Donneilhorpe, Gwill. 13960 chapel Ch. X. Remedies for the Recovery of Tubes ^ tsfc. 287 chapel whence the tithes arife, nor any way interefted in fuch tithes, offerings, or compofition ; and it is (§ 2.) fur- ther enaded, that the jufliccs on fuch complaint fiiall fum- mon by reafonable warning under their hands and feals, every perfon againft whom any fuch complaint fhall be made ; and after his appearance or default, the fummons being proved on oath before the juftices, they, or any two or more of them, fhall proceed to hear and determine, and fhall, upon fufncient proof, in writing, under their hands and feals, adjudge the cafe, and give fuch reafonable al- lowance and com.penfafion for fuch tithes, offerings, and compofition, as they Hiall judge to be reafonable, and alfo fuch cofts and charges not exceeding ten (hillings, as upon the merits of the caufe Ihall appear juft j (§3) and if any perfon fhall refufe or negleft, by the fpace often days after notice given, to pay the money adjud^^ed, the conftables and church-wardens of the parifh, or one of them, fhall, by warrai't under the hands and feals of the juftices, diftraini his goo(> ^.nd chattels, and after detaining them by the fpace of three days, in cafe the fum adjudged with reafon^ able charges of the diilrefs, be not tendered or paid by the party, fhall make public fale of the goods diftrained, and pay to the party complaining the fum {o adjudged, re- taining to themfelves fuch reafonable charges of diftrefs- as the juftices fhall think fit, and (§ 4.) rendering the overplus, if any, to the owner j and the (§6.) juftices are exprefsly empowered to adminifter oaths to the wit^ neffes : But no fuch complaint fhall be heard and deter- mined by the juftices, which fhall not be made within. two years next after the time when the tithes, offerino-s and compofitions become due (§ 7.), and an appeal is thereby given to the next general quarter-feffions ; and on the judgment being confirmed, the juftices are to give reafonable cofts againft the appellant, to be levied by diftrefs, and no proceedings or judgment, had by vhtue 3 of 28 S Law of Tithes. GIi. X* of" that act, fliall be removed by writ of ceriiorar-'i^ anlefs the Uile to fuch tithes and offerings fhall be in queflion ; (§9) and every perfon obtaining judgment, or againft whom judgment fliall be obtained by virtue of that act, fhall procure it to be inrolled at the next general quar- ter-fellions for the county or place ; and the clerk of the peace is required, upon tender thereof, to inrol the fame, the fee not to exceed one fhllling ; and the judgment fo inrolled, and fatisfaclion made by paying the fum ad judged, ihall be a good bar againft the reftors, vicars, and other pcrfons, from any other remedy for fuch fmall tithes, offerings, or compofitions, for v/hJch fuch judg- ment was obtained; (§ 12.) and the juflices may give cofls not exceeding ten fhillings to the party profecuted, if they fliall find the complaint to be falfe and vexatious, to be levied in the manner before defcribed ; (§14.) and it is thereby provided, that any clerk, or other perfon, who fhall begin any fuit for recovery of fmall tithes, or offerings, not exceeding the value of forty flnllings, in the exchequer, or in any of the ecclefiaftical courts, fliall have no benefit by that aft for the matter for which he fhall have fo fued ; (§5.) and that the act fhall not extend to the city of London, nor to any other city or town corporate where fuch tithes or offerings are fet- tled by any acl of parliament in that cafe particularly made; and that v/here aiiy perfon, againfl whom fuch complaint fliall be made, fliall before the juflices infifl on any pre- fcription, compofition, or modus decimatidi, agreement or title, by which he ought to be freed from the payment of fuch tithes, or other dues in queflion, and deliver the fame in writing to the juflices fubfcribed by him, and fliall give to the party com.plaining fecurity to the fatis- fadion of the juflices, to pay all fuch cofls and da- mages as upon a trial at law fhall be given againfl him, in cafe fuch prefcription, compofition, or modus deciinandi^ 14 fliall Ch. X. Remedies for the Recovery of Tithes, EsV. 289 fhall not upon fuch trial be allowed, then that the juflices fliall forbear to give judgment in the matter, and the complainant may prdfecute his complaint in any other court where he might have fued before the making of that ad. (§ 8.) By the ftatute 7 and 8 Wm. third, c. 34. fecondly above mentioned, it is enafted, that where any quaker fhall refufe to pay, or compound for his great or fmall tithes, or to pay J church rates, the two next julHces of the peace of the fame county, other than fuch juftice as is the patron of the church, or interefted in the tithes, may on complaint of any parfon, vicar, farmer, or proprietor of tithes, or church- warden who ought have or collect the fame, by warrant under their hands and feals, convene fuch quaker and exa- mine by oath, or otherwife, the truth of the com.piaint, and afcertain the fum due, and by order under their hands and feals dire£t the payment thereof, provided the fum ordered do not exceed ien pounds, and on refufal of payment any one of fuch juflices may by warrant under his hand and feai levy the money by diflrefs and fale, rendering the furjlus, deducting the charges of diftraining; and an appeal is there- by given to the next general quarter feflions from fuch judgment, with power of giving cofts to be levied by diflrefs and fale ; and the judgment fhall not be removed or fuper- feded by writ of certiorari, or other va-it, unlefs the title (hall be in queflion ; provided that in cafe of fuch appeal no warrant of diflrefs fliall be granted till the appeal be determined. Thefe flatutes relate only to tithes, and church rates, and were merely temporary. But by flatute i Geo. firfl, flat. 2. c. 6. they are made perpetual, and extended to any tithes or rates, or any cuflomary or other rights, dues, or payments belonging to any church or chapel, U which 290 Law of Tithes. Ch. X. which of right by law and cuftom ought to be paid for the- ftipend or maintenance of any minifter, or curate offici- ating in any church or chapel, and the act direds, that the proceedings Ihall not be removed into any other court, unlefs the title fliall be in queflion. The writ of certiorari having iffued to remove an order of juftices made againfl a quaker, under the above men- tioned ftatute I Geo. i. flat. 2, granted on a pofitive, but general affidavit, that the defendant controverted the title to the tithes before the juftices, and that the title to them was really in queftion, the writ was fuperfeded — quia improvide emanavit ; the return taken off the file, and the order remanded, upon its appearing that this allegation and affertion had no other foundation than the general fcruples of the defendant to pay demands of this nature, the court holding that the a£l was made in favour to, and for the eafe and benefit of quakers, and to fave them from troublefome and expenfive profecutions ; but that it never meant that a mere fcruple of theirs, or an obfti- nate withholding of the tithes fhould be any hindrance to the matter being determined by the juftices of the peace. This would have fruftrated the very intention of the a6l, which- meant to give this jurifdiclion to juftices in that very cafe, where the legal right and title to therA fiiould not be iu difpute between the parties (c). Laftly, in regard to the remedies for the recovery of tithes in London ; they are not reftrifted to fuch as are •dftorded by the decree and ftat. of Henry the eighth. It is clearly fettled, that the partici^Iar jurifdidion created by the decree and flatute, has not deprived courts of equity of the ancient jurifdiftion, which they excrcifed (r) The King V. Wakeni;ld, Gvvill. 864. Burr. Kcp. 485. on Ch. X. Remedies for the Recovery of Tithes J '<^c. 291 on this fubjeft ; therefore fults for tithes in London may ftill be fuflained in the courts of chancery, and the exchequer : This point is eftabhfhed by a long train of authorities, and upon a very found principle ; an ad of parliament creating a fpecial jurifdiclion never oufts the jurifdiftion of Weft- minfter-hall without a fpecial provifiOn to that etFeft ; there is no veftige of an authority to the contrary ; the lord mayor is incapable of exercifing a jurifdi(5lion with regard to fraudulent leafes. Before the ftatute of Henry the eighth, tithes in London Itood upon the fame footing as pther matters of ecclefiaftical cognizance ; but antece- dently to that ftatute courts of equity poffeffed jurifdidlion on the fubject, and very beneficially, becaufe the fpiritual court in m.any inftances is incapable of applying an effec- tual remedy ; if accounts are neceffary, recourfe mufl be had to equity ; or in cafes of fraud, if the profecution of the right depend on matters of difcovery (^d). It moreover appears, that the decree and ftatiite juft re- ferred to has not deprived the ecclefiaftical court of its ju- rifdiction with refpect to tithes in the city of London ; for;, though in the cafe of Skidmore and Eire above cited, one point refolved was, that a parfon of a parifti in London could not fue for the tithes in the ecclefiaftical court ; for that the act and decree, that raifed and gave this kind of tithes, did limit and appoint how, and before whom the -uune ihould be fued for, and did appoint new and fpecial judges to hear and determine the fame ; and in that cafe it was awarded, that the prohibition fhould ftand («?); yet lord Loughborough C. in the courfe of his argument, in the cafe of the warden and minor canons of St, Paul's, ex- (^) The warden and niiror ca- a^ithorities there cited nonsof St. Paul V. Cricket, Gv.ilL [e] Skidmcre v, Erie, 2 InlK 5425. 2 Vef. jun. 563. and the 660. U 2 pre/Ted 2-92 Law of Tithes, Ch. X. preiTed his opinion that the cafa of Skidmcre and Eire was an unhandfome flruggie for jurifdiction, and that the prohibition was carried farther than in juft reafon it ought. But his lordlliip at the fame time obferved, that he could fcarcely figure a cafe in which j:he ecclefiaflical court would be able to execute its ov/n jurifdiccionj for it niuft ruil into cuilomary payments (/). By the flatute 22 aad 23 Car. fecond, c. 15. paiTed for the better maintenance of the clergy of London in the parifhes burnt by the fire, the funis of m.oney which have been duly according to the directions of the act, affeffed upon the feveral hc-ufes, and other buildings within the pariflies mentioned in the act, are become fixed and real charges upon the houfes, and buildings, on which they were fo aifeflcd, fo that the arrears, which ought to have been paid by the forme' occupiers, or which became due when the "houfes flood empty, may be levied by dif- trefs-and fale of the goods of the prefent occupiers {g). If the lord mayor do wrong in refufmg his war- rant of diftrefs for levying fums of money on the in- habitants who deny the minifler his afTeiliiient made m the year 1681, under the aforeiliid act of parliament of a 2 and 23 Car. fecond, the court of chancery, upon pe- tition, has jurifdiction to ilTue its warrant for levying the funis alTefied (/^). For the fiipends of the minifters of the fifty new churches provifion is made by feveral acts of parlia;r:c..t, to be raifed from the duties on coals. There are, moreover, feveral particular flatutes rela- tive to particular churches in London and other places. (/) The warden and minor ca- [g) Ex parle Croxall, Gwilh :;o:r. of St. Paul's v. Cricket, .8i2. 3 Atk. 6jg. G.U. H2S- 2 VJ. jun. 5^3. {h) Ibid. 1 1 APPEN- A P P E N D I X, >Io. I. A CATALOGUE of MONASTERIES of the yearly Value of Two Hundred Pounds, or upwards, diflblved by the Statute of 3 1 Hen. Eighth, and by fuch Means capable of being difcharged of Tithes. In which are the following Abbreviations : A. Abbey ; ^. Priory ; C. Auft. Canons of St. Auftin ; Bl. M. Black Monks, Wh. C. White Canons 5 Ben. Benediciines ; Gilb. Giibertines ; Pr^sm. Prsemonftratenfes ; Carth. Car- thufians ; Mon. Monks ; Clun. Cluniacks ; Cirti. Cif- tertians ; N. Nuns ; T. in. the Time of; ab. about the^ Year. The Catalogue is extrai5led from Tanner's No- o t'tia Monaftica. BEDFORDSHIRE. Monat^eries. Order. Founded. V^ilue. Eldow olim HeleneRow, 1 £-^- ^- Elnftow, Or Alne- [■ Ben. T.W.Conqr. ^^J^ 12 ii^ Howe A. - 3 DunilapleP. - C.Auft. T.H.I. 34413 3I Wardon A. - Cift. ■ 1135 389 16 6\ Chickfand P. - Gilb. ab. 1150. 212 3 5^ Keweaham P. - C. Auft. T. H. L. 293 5 11 Woburn A. - Gift. 1145 391 18 7| BERKS. Abingdon A. - Ben. ■ ab. 670 1876 10 9 Bultefham, or Byihanvl^,_^^^j^^ nE.III. 285 11 o Montague A, - J ** ^ • Reading A. - Ben. T.H.I. 1938 14 3^ U 1 BUCFvb 294 APPENDIX. BUCKS. Monafteiies. Order. Founded. Valje. £' '- ^• MiflendenA. - C. Auft. 1133 261 14 6i NoiBele, Nuttley, or Del Parco Crendon, or De >■ C. Auft. 1162 437 6 8^ ParcofuperThamamA. J Afheridge, or Aflirug j ^^ ^^^^^ T,I..l. 416 16 4 Coll. - - J CAMBRIDGESHIRE. Ely P. - - Ben. ab. 970 1084 6 9I Thorney,olImAncorigA. Ben. 972 4^^ ^^ i^ Barnwell P. - C. Auft. 1C92 256 11 ^o\ CHESHIRE. St. Werburg's A. - Ben. 1C93 ^<^°3 5 >^ Combermere, - Cift. 1133 225 9 7 ValeRoyal, orDe Vallej ^.^^ ab. 1266 518 19 8 RegaliA. - 3 :> ^ CORNWALL. Bodmin, olim Bofmanna P.C. Auft. ab. 926 270 on St. German's P. - C. Auft. T.Ethelftan 227 4 8 Launcefton, olim Lanfta- 1 veton, i. e. Fanum S. >• C. Auft. ab. 1126 354 o 11^ Stephani P. - j CUMBERLAND. CarliolP. - - C. Auft. T.W.Rufus 418 3 4I HolmCultramA. - Gift. 1150 477 19 3l DERBYSHIRE. Little Derby, Derlega, or ) ^ ^^^^ r^^ ^ j^ 258 14 5 Darky A. - j DEVONSHIRE. Tavyftock, or Taveftock A. Ben. 981 902 5 7| PlymptonP, - C. Auft. 1121 912 iz Bj HertlandA. - C. Auft. T. H. XL 306 3 i; Ford A. - - Gift. 1141 373 ^^ ^l BuckLftreor Buckfaft-l ^^^^ ^ ^^g^^ ^^ Leigh A. - J DEVON- APPENDIX. 295 DEVONSHIRE continued. Monafteries. Order, Founded. Value. £' X. d. Torr A. - - Priem. 1196 396 o 11 Dunkefwell A. - Gift. 120 1 294 18 6 Newenham, or Neuham A. Gift. 1246 227 7 8 Buckland Monachorum,! ^-^^ ^ g 241 i? 9f or Bucklaud A. j DORSETSHIRE. Shireburn A. - Ben. ab. 870 682 14 7| Shaftefbury, <;//wi 5^f/)/i?«?^ A.Ben. N. ab. 888 1166 8 9 Middleton, or Milton A. Ben. ab. 933 578 13 114 Cera, or Cernell A. Ben. T.Edgar 515 17 10* Tarent, or Tarrant Kftines,"^ Kainefbonjor Kingfton, j olim Locus Benediausi^^j^j^^ '^ Rej^mae iuper larent, j "^ or Locus Reginx fuper | Tarent, A. - J Abbotefbury,ollmAbbo j ^3 ab. 1016 39019 2| dcfbirig A. - j iy y ^ DURHAM Durham P. Ben. ESSEX. ab. 842 1355 10 9 Berking. olimBerechinga, or Bedenham A. ] Ben. N. ^75 862 12 5i Waltham A. C. Auft. ic62 900 4 3 Colchefter A. Ben. 1 096 523 \6 04 Chich A. G. Auft. ab. 1 1 r 8 677 I 2 Stratford A. Gift. 1^34 5^1 16 31 Waldcn A. Ben. 1136 1946 5 9 Coggfihale, or Coxhall A. Gift. 1 142 25' 2 , GLO' ;JCESTERSHIRE. Gioucefier St. Peter's A. Ben. ab. 680 1946 5 9 Tiicokefbury, or Tewkef- bury A. X Ben. 7'5 1598 I 3 Winchelcombe A, Ben. 79B 759 II 9-i Cirencefter A. C. Auft. 11 «7 1051 7 U U 4 GIrOT-J, 295 APf>ENDIX. GLOUCESTERSHIRE continued. Monaaeries. Order. Founded. Valuo. £. s. d. LantonynearGIoucefler.jc.Auft. 1136 64S 19 ill or Lantonia becunda. 3 o -x y Hajles, or Tray A. - Gift. 1246 357 7 8^ HAr>:PSIiIRE. "Winchefler St. SwIthin'sP. Een. ab. 646 1517 7 2^ Hyde, or Newmlnfter A. Ben. per 865 18 of Runaefey A. - BenN. 967 393 10 io| Wherwell A. - BenN. 986 339 7 7 TwinhamjorChriftchurchP. C, Auft. ab. 1150 312 7 o^ Soi:th'/yke,orPorLchefl:erP. C. Autt. 1 133 257 4 4^ Beaulieu A. - Clft. 1204 3^6 13 2| Tychfield A. - Prsem. 1231 249 16 3 HEREFORDSHIRE. Wigmore A. - C.Auft. T.H.I. 267 2 io| Leominiler, or Lemfter, 1 olim Leonid JNIonade- I -d 1 r T r T I .• r Ben. bef. 112c 212 12 o rium, Lcotj or Llanli- 1 -^ enfis, Cell. - J HERTFORDSHIRE. St. Alban's A. Ben. 793 2IC2 7 If HUNTINGDONSHIRE. St. Neot's, olim Eynulfef- 1 t. bury,orHenulvefberiP. J T. H. L 241 1 1 4l- Ramfey A. Ben. KENT. 9^9 i7'5 12 3 Canterbury Chri ft-churchP. Ben. ab. 600 2349 8 51 Canterbury St tine's A. • ^_"S"^-| Ben. ab. 605 I4I3 4 if| Leedes P- C. Auft. 1119 362 7 7 Bcxley A. Gift. J146 204 4 1 1 Feveifham A. Ben. 1147 2?,6 12 6| Dertford P. Auft.N. ab. 1355 380 9 01 Rochefter P. Ben. ab. 600 486 II 5 Mailing A. Ben.N. T.W.Rufus 2i8 4 ^l LAN- APPENDIX. 2p7 LANCASHIRE Monafterles. Order. Founded. Val lue. I' s. d. Furnes A. - Gift. ii?-4 805 16 5 WhalkyA. - - , Clrt. 1172 321 9 n LEICESTERSHIRE. Leicefler St. Mary A. C. Auft. H43 951 14 5!- Landa, Launde, or Lo-Tp * n^ dinton P. - J ' " * T. H. L 399 3 3l Croxtop, or De Valle In 1 p Croxton A. - J 1 1 62 38s I of LINCOLNSHIRE. Bardney,olimBeardanamA. Ben. T. Ethelred 366 6 1 Crowlnnd A. - Ben. 716 1083 15 IO| Spalding A. - - Ben. 1052 707 7 II Sempringham P. . - Gilb. ab. 1 1 39 3'7 4 T KirkftedA. - - Gift. i»39 286 2 7* Gift. 1 142 287 2 41 Gilb. 1148 202 5 oj Prjem. 1154 252 S iii- :arth. ab. 19R. IL 237 »s n- Thorneton upon theHum- T her, or Thornton Cur- i- C. Auft. 1139 594 17 5! teis, olim Torington A. j Revefby A. Lincoln St. Catherine P. Barlinge, or Oxeney A. The Priory in the Wood,^ or the Houfe of the '. Vifitation of the Blef- ! fed Virgin, near Epp ; worth, in the Ille of | Axholm - J LONDON and MIDDLESEX. St. Johnof Jerufalem,orl ^^^^ ^^ St. Jones - 3 o J y St. Bartholomew's P. C. Auft. 11 23 693 o 10'^ ClerkenwcU, orSt. Mary's 7 T) xt u >. ^ , T^ A, • V) i-Ben. N. ab. iioo 262 19 o de Fonte Clericorum r . j ^ Haliwell P. - Ben.N. before 1127 300 19 5 St. lielcn's P. - Ben.N. ab. 1210 320 15 8*. Chartreufe Houfe P. ab. 1360 642 o 4^ The Minories - 1293 318 8 5 "r^fM.'^^TSl ««• '349-50 547 o C, LON- 298 APPENDIX. LONDON and MIDDLESEX continued. Monafteries. Order. Wcfiminfter, olim Thor- , j, neie A. 1 . Syon A. *■ Brig. N. Founded. Value. /. X. /^1 J. ab. 610 3470 21- 1414 1731 8 9h NORFOLK. St. Bennef s of Hulaie A. Ben. ab. 1800 583 17 of WalfiHghamP. - C Aufh T.W.Conq. 391 n 7^ Thetford P. - Clun. ab. 1104 312 4 4 CaRlencre, or Eftacre P. Clun. ab. 1085 306 11 4^- Norwlch P. - Ben. iioo 874 14 6| Weftacre, olim Acra P. C. Auft. T.W.Rufus 260 13 7^ Wvmondham. or Wind- 1 r> ur »«,.,/c/ci / . * J- Ben. before 1 107 211 10 6' ham A. - 3 ' - Weft Dereham A. - Prsem. 1188 228 o o| NORTHAMPTONSHIRE. Peterborough, olim Me- » t, defhamfted A. . \ Northampton St. Andrew's Clun. Pipewell, olim S. Marine } p-n de Divifis - ) Sulby, or Welleford A. Praem. NORTHUMBERLAND. Tinmouth, olim Dune-"^ muth, or Dounemade >- Ben, T.St.Ofwald 397 10 yj Cell. - 3 NOTTINGPIAMSHIRE. WIrkefop, or Radford P. C. Auft. T. H. L 239 15 5 LentonP. - - Clun. T.H.L. 387 10 10^ Thurgarton P. - C Auft. ab. 1130 359 9 4| Welbeck A. - Praem. 1152 249 6 3 OXFORDSHIRE. Egnefham, or Eynfham A. Ben. before 1005 441 12 2j Tame A. - - Cift. ab. 1137 256 14 7^ Godeftow A. - Ben. N. 1138 258 10 61 OX- ab. 6s 5 1721 14 o] 1076 263 7 ^l 1 143 286 1 1 H ab. 1 155 285 8 s APPENDIX. 299 OXFORDSHIRE continued. Monafteiies. Order. Founded. Value. £. s. d. Ofeney A. . . C. Auft. 1129 654 10 2J Dorehefter,oHm DorciaA. C. Auft. 1140 217 5 9^^ SHROPSHIRE. Wenlock, oHmWImnicasA. Clun. i4\V.Conq. 401 7 01 Shrewfbury A. - Ben. ' 1083 532 4 10 HagJimon A. - C. Auft. ino 259 13 7JI Lillcfhall, nearDunintonA. C. Auft. ab. 1145 229 3 i' Hales, or Halefoweyne A. Prjem. T.John 280 13 2* SOMERSETSHIRE. Glaftonbury, olim Aval ? t, Ionia A. - 5 ^^"- 33'i 7 4l ^ath A. - Ben. ab. 775 617 2 3 Athelney, olim Ethelin- 7 -„ , graiaA. . \ ^'^"- ^^- ^^8 209 o 3^ Michelney, orMuchenay A. Ben. 939 44J 4 u . Bruton, Brewetone, or 7 ^ . „ l BriwedonA. ! j<^-Auft. ab. 1005 439 6 8 MontacuteP. . Clun. { ^'."^^'.^i^- } 45614 3i Taunton P. - C. Auft. T.H.I. 286 8 10 Keynftiam A. - C. Auft. ab. 1170 419 10 /^\ Minchi.n Buckland P. Auft. N. T. H. II. 223 7 4' Witham P. . Carth. T. H. II. 215 15 o"^ Henton P. Atrium Dei, 1 r^ t or Locus Dei . j ^'"^^^- ^^^7 248 19 2 BRISTOL. Great St. Auguftine's P. C. Auft. 1148 670 13 ii^ STAFFORDSHIRE. Burton A. - Ben. 1004 267 14 3 Dieulacres A. - Cift. 1214 227 5 o Bury St. Edmund, olim Bederiefworthe,orEad- > Ben. 1020 165^ 7 3 mundeftow A. - 3 Sibton A. - - Cift. ii-i'9 250 15 7'' Butlcy P. - C. Auft. 117 1 318 i7 2' SUE- 3O0 APPENDIX. SURREY. rvlonaderies. Order, Founded. Value. £' s. d. Chertrey,oHrnCirotefege,J ^^^^ ^^^ g or Ceortelei A. * i j^ j Bermondfey A. - Clun. 10S2 474 14 4* St. Mary Overy P. - C. Auft. iio5 624 6 6 I\lerton P. - C. Auft. 11 17 957 19 Si AWeburyP. - C. Auft. T.R.I. 258 11 11^ Sbenc P. - ' Carthuf. 1414 777 12 o^ SUSSEX. Battell, or De Bello A, Ben. 1067 880 14 7I Lewes P. - - Clun. 1078 920 4 6^ WARWICKSHIRE. Coventry P. - Ben. ab. 1043 538 4 o Kenilworth, olim Che 7 <-, . n. l o J . ?C. Auit. ab. II2Z 538 19 4 ningenurda A. - 3 j^ j' « Llereval, orDeMiravalle, ? ^.^ , o ^-. ■, o A t n- A c Cift. ab. 1148 254 1 8 near Atherfton A. > n JT Combe, olim Smite, near J ^.„ ,. , . T3 • 1 1 A t Clft. I 150 311 10 I Bnnklow A. - 1 -^ j o Nun Eaton P. - Fonterv.N. T.H.II. 253 14 2| WILTSHIRE. Ambrofebury, or Amef- -j bury, olim Ambrofia, \ ^ ^-r u ^o .^- . fiveAmbriiCcenobiump^"-^- ^^'^^^ ^95 15 2 A. - - J Malmefbury, olim Caer" Bladon, Ingeiborn, Maidulphi urbs, five Curia, Aldhelmefbirigh, \- Ben. ab. 6;o 803 17 7|. Maldmeiburgh, IVIel- dunum, or Meldunef- burgh A. Wilton, olim EUandune A. Ben. N. T.Egbert 601 i if Kingiwood A. - Gift. 1 139 244 1 1 2 ' Braderiftoke P. - C. Auft. 1142 212 19 3 Edinapn, or Hedington P. Bonhommes 1358 442 9 7| WOR,- APPENDIX. 301 WORCESTERSHIRE. Monaftc-iies. Order. Founded. Value. £■ '■ d. Worcefter P. - Ben. T. EfJgar 1229 12 H Perfhore, olim Perfcora A. Ben. 9''4 <>43 4 5 Eovefliam, orEvefliam A. Ben. 701 1183 ]2 9 Malvern Major P. - Ben. ab. 1083 308 I 4l Bordcfly A. - Gift. iij8 388 9 ^o\ T. H. I. 547 16 III YORKSHIRE. Whifby, olim Streane-1 fchach, Sinus Phari, > Ben. T.Vv^'.Conq. 437 2 9 Prefteby A. - 3 Selby, ohm Salebeia A Ben. T.W.Conq. 729 12 10^. Warton, olim Vetadan P. Gilb. ab. 1150 360 18 10 York Sf. Mary A - Ben. 1088 1650 7 o^ Pontfraft, olim Kvrkeby, "? 01 r^ -^ir -o c c. r, , , • ' r> '' i Ciua. r.W.Rufus 327 14 Si- or Brokenbrigge r. 3 . No(leIl,Noftlai,orNeftel' J ^ \ a t' ttt- i? r o J p * s C.Aull. r.vV.Kufus 492 18 2 Bolton in Craven P. - CAuil. 11 20 212 3 4 Kirkham P. - C.Auft. 1121 269 5 9 Burlington, or Bridling- 1 ton. olim Brellinton, or > C.Auft. Eerlintona P. - j Gifeburn, or GyfburghP. C.Auft. 1129 628 3 4 River, olim Rievail, orj (.j^^ 1 131 27810 2 Rivaulx A. - 5 / Fountains, or De Font!- 7 ^..^^ 1123- 998 6 8^ bus A. - i J y^ 2. Byland, olim De Bella- "1 landa, Begelanda, five >• Cift. 1143 238 9 4 Bechland A. - 3 Newburgh, or DeNovol^^^^^^^ ^ , Burgo P. - 3 ^ o J :> J Roch, or De Rupe A. Cift. 1147 224 2 5 KirkftallA. - Cift. 114? 3^9 2 11 Melfa-, or Meaux A. - Cift. 1150 299 6 41. JorevaUJervaux, or Gsr- ? ^j^^ ^^^^ 3 vis A. - - J Monk Breton, or Lunda P. Clun. T. H. II. 239 3 6 Mountgrace P. - Carthuf. 1395 323 2 io|- No. IL 302 APPENDIX. No. II. 1. Of the parifli of AlkalloiijSy Lurnhard-Jlreety one hundred and ten pounds, ex /. 2. Of St. Barthokmeiv Exchange^ one hundred pounds c/. 3. Of St. Bridget, alias Brides^ one hundred and twenty pounds, cxx /. 4. Of St. Bennet Finch, one hundred pounds, c /. 5. Of St. Michael Crooked lane^ one hundred-pounds, c /. 6. Of St. Chrijhpher, one hundred and twenty pounds, cxxA 7. Of St. Dionis Backd-urchy one hundred and twenty poundsj cxxA 8. Of St. Dunjlah in the eaft, two hundred pounds, cc /. 9. Of St. James Garlick Hythey one hundred pounds, c /. 10. Of Sc. Michael Cornhillt one hundred and forty pounds, cxl /. 11. Oi St. Michael Bajfipa^v^ one hundred thirty and two pounds and eleven (hillings, cxxxii /. xi j-. 12. Of St Margaret Lothhury, one hundred pounds, c.A 13. Of St. Mary Aldermatihury, one hundred and fifty pounds, clA 14. Of St. Martin Lt.'dgate, one hundred and fixty pounds, clx /. 15. Of St. Pet^i- CornhiU, one hundred and ten pounds, ex L 16. Of St. Stephen Coieman-ftreety one hundred and ten poundSj ex/. 17. Of St. Sepulchre, two hundred pounds, cc A iB. Oi Alhallows Bread ftreety and St. j'.hn Evangelijiy one hundred and forty pounds, cxl A 19. Of Alhailoit. Stephen Walbrook, and St. Bcnnet Sheerhogg, one hundred pounds, c/. 50. Of St. Swythin, and St y^f^/-); BTthaWy one hundred and forty pounds, cxl /. 51. Of 's>t..Vedaft, alias Fojlers, and St. Michael ^mn^ one hundred and fixty pounds, clx /. AD- ( 305 ) ADDENDA et CORRIGENDA. j^\FTER note (c) pag. 124, infert " But In a cafe in the court of exchequer, Worrall v. IMiller and Sweet, 19 Dec. 1 80 1, in which an impropriate rector filed his bill againft nurferymen within the parifh for the tithes in kind of all the produce of the nurfery grounds, as well for young trees, ordinary fruits, and garden fluff, as for pines, grapes, and all exotics produced, or brought to perfedion in hot-houfes, and green-houfes ; and the defen- dants admitted his claim to tithes of all the productions of their nurfery grounds, which they had offered to fettle and account for ; but denied it in regard to any produ6tions forced, or preferved' in buildings, (that is to fay) pines and other exotics, which they admitted they cultivated in their houfes ; infilling that thofe articles were not tithable : the court dea*eed that fo much of the bill as prayed an account of pine apples, grapes, and other exotics raifed in hot-houfes, and green-houfes fhould be difmiffed without cofls j and that the red of the bill fliould be difmiffed with cofls. Page 80, after the third line, add the following words : *' However it has been recently held, that at common law, and without any cuflom, the hay muil be partly made before the tithes are fet out ; That the parifhioners cannot put the grafs into cocks which are to, be tithed immediately from the fwathe : That they muff firff fedd it, that is, throw it abroad from the fwathe, and aflerwards gather it together again ; then it being put into grafs cocks, the tithe may be fet out ; after which the parfon comes upon the ground, throvv-s it abroad from the cock, X and ( 3o6 ) and completely makes it into hay. But it mufl firil be tedded by the occupier of the foil. If in any parti- culiar cafe from the flate of the crop, this procefs ihould not be required, that muft be proved by the occupier (*).'* (*) Newman v^ Morgan, per Heath J, Campb. Ni. Pri. Ca.^ 305. and afterwards confirmed by the opiuion of the court of B. R. 16. — Jth. line, {ox feculars read e:^cutors, 9th hne, ior fow reTLAfoivcd. I oth line, for dies read died. nth line, for is read zvas. 1 2th line, for is read was. 13th line, ior Jhall re2i