Abridgment of Ecclesiastical Laws

A

ABby-Lands were five ways privileged or discharged of Tithes, viz. by Composition, Bull or Canon, Order, Prescription, and Unity of possession of Parsonage and Land time out of mind, together without payment of Tithes . It is supposed, that no Land which belonged to Abbots, Priors, &c. is at this day discharged of Tithes, but such as came to the Crown by the Statute of 31 H. 8. c. 13. All Monasteries under Two hundred pounds per A • . were to be dissolved by the Statute of 27 H. 8. But those of 200 l. per Ann. or upwards, not till the 31 of H. 8. The Unity aforesaid, or perpetual Unity is, where the Abbot, Prior, &c. time out of mind have been seized of the Lands out of which the Tithes arise, and also of the Rectory of the Parish in which the Lands lie. Which Unity (as to a discharge of Tithes) must have these four properties, (1) It must be Justa as to the Title: (2) Perpetua, or time out of mind: (3) Aequalis, that is, a Fee-simple both of the Lands and Rectory: (4) Libera, or Free from the payment of all manner of Tithes whatsoever . In a Case where an Abbot held a P • rsonage Impropriate, which was discharged of Tithes, and had purchased Lands, so that the Tithes were suspended in the hands of the Abbot; and afterwards the Possessions of the Abbot coming to the King by the Statute of 31 H. 8. The Question was, Whether the Lands so purchased by the Abbot before his Surrender to the King, were discharged of the Tithes? It was the Opinion of Mr. Plowden in that case, that they were not discharged; for that no Lands were discharged, but such as were lawfully discharged by right Composition, or other lawful thing; and in the said Case the Lands were not discharged in Right, but suspended only during the time that they were in the Abbots hands .

Acorns or Mast of Oak shall pay Tithe, for they are of Annual increase, as in Lifo • d's Case . These Acorns or Mast are known in the Law by the word [Pannagium:] so Lindwood, Pannagium est pastur. Porcorum in Nemoribus & Sylvis, ut puta de glandibus, & aliis fruct • bus arb • rum Sylvestrium, quarum fructus aliter non solent colligi. Lindw. de Decim. c. Sancta Ecclesia, verb. Pannagiis. And Mr. Skene de verb Sign. defines this to be a Duty given to the King for the pasturage of Swine in his Forrests: Also Pannagium is taken for the money which is paid for the Pannage itself, as appears by the Statute of Charta de Foresta, cap. 90. Unusque liber homo, &c. .

Aftermoath or Second Moath: Of this Tithes shall be paid de jure, unless there be a Special Prescription of Discharge by paying the Tithes out of the first Moath, and then it shall be discharged . But if a man pay Tithe-Hay, no Tithes ought to be paid d • jure afterwards for the pasture of the same Land for the same year, for he shall not pay Tithes twice in one year for the same thing, for that the After-pasture is but the Relics of Hay, whereof he had paid Tithes before . Nor shall Tithes be paid for Agistments in such After-grass . In Johnson and Awberie 's Case it was Resolved, that Tithes are not to be paid for the After-pasture of Land, nor for Rakings of Corn . And where in Awberies Case, Suit was in the Ecclesiastical Court for the Tithe of the After-mowings of Grass, an • upon a Surmize, That the Occupiers of the Land had used to make the first Cutting of the Grass into Cocks for Hay, and to pay the Tenth Cock thereof in satisfaction of the First and After-mowings, a Prohibition was awarded . So that After-grass, or After-pasture, or Aftermoath do not pay Tithes, where they have paid before of the Grass of the same ground the same year, save where by Covin to defraud the Parson, more Grass is left standing than was wont to be, or is there usual; Nor is the Herbage of Cattle, which eat up that Grass, Tithable, unless there be some Fraud in the case . Notwithstanding the Premises, although the Aftermoath be not Tithable, where the Owner at his own costs, charges and labor, made the first Grass into Hay; yet Q. whether it may not be otherwise, where the Owner doth no more than cut down the Grass of the first Moath? .

Agistment, that is, a taking into Grass the Cattle of Strangers within the Parish where the Grass grows; this is Tithable, and regularly by the Owner or Tenants of the Land, not of the Cattle, unless the Custom makes it Tithable by the Stranger . Heretofore there was not any Tithe paid for this Agistment ; but now the Law is taken to be otherwise : And is (as aforesaid) to be paid by the Owner, not of the Cattle, but of the Land . Under this Notion of Agistment is also comprehended the depasturage of Barren Cattle, whereof comes no profit to the Parson, the Quota of which Tithes is regulated by the Annual value of the Land, the Number of the Cattle, or the Time of the Pasturing, according to the usage and custom of the place; yea, though the Cattle be bred for the Plough or Pail, to be employed out of the Parish where they are Agisted, and by one that is no Inhabitant within the Parish, Tithes shall be paid for the Agistment of such Cattle. But for profitable Cattle, as Oxen, Horses, or Beasts of the Plough, employed and used in the same Parish, no Tithes shall be paid for the Agistment thereof : But if Cattle or Horses be bought, not for any Husbandry in the same Parish, but to be sold again, Tithe shall be paid for the Agistment thereof, and a fraudulent employment of them in the Parish to defeat the Parson of his Tithes, will not prevent the same . A. sued a Prohibition against B. Parson of D. because he Libelled in the Ecclesiastical Court for Tithes for Agistments; the Plaintiff pleaded, That he had always paid 12 d. for every Milch-Cow going in such a Pasture; and for this payment he had been discharged of Tithes for all Agistments in that Land. In this case it was said, That this payment of money for Milch-Beasts, should not discharge him from the payment of Tithes for other Beasts . In the Case of Lacie against Long the suggestion for a Prohibition was, That Parson sued in the Spiritual Court the Owner of the Land for Tithes of Cattle, which he took to Agistment, where he ought to sue the Owner of the Cattle: It seemed reasonable to the Court, that the Suit was well brought against the Owner; but be it quomodocunque, it belongs to the Spiritual Court to determine, whether the one or the other ought to be Sued; therefore for that reason, as to that point, a Consultation was granted per Curiam . Vid. Pasture.

Agreement: No Parson can by any Agreement made with his Parishioner bind his Successors; but being made with him for his Tithes during only the Parsons life, this is good . And an Agreement only by Word, without any Deed, may be good, made by the Parson with his Parishioner, that he shall keep his Tithes . A Parson contracted with A. his Executors and Assigns, for 10 s. to be annually paid him by the said A. his Executors and Assigns, That he, his Executors and Assigns, should be quit from the payment of Tithes for such Lands during the life of the Parson: A. paid the Parson 10 s. which he accepted of, and made B. an Infant his Executor, and died: The Mother of the Infant took Letters of Administration durante minori aetate of the Infant, and made a Lease at will of the Lands: The Parson Libelled in the Spiritual Court for the Tithe of the same Land against the Tenant at Will. In this Case it was said, That the Agreement did oblige the Parson during his life: and although the Assignee could not sue the Parson upon the Contract, yet he should have a Prohibition to stay the Suit in the Ecclesiast. Court, and put the Parson to his Remedy for the 10 s. upon the Contract, for that he could not have Tithe in kind, by reason of the Composition made . If a Parson agree and contract with one of his Parishioners, that he shall keep back his own Tithes, if that be made after that he hath sown his Corn, and for the same year only, in that case the Agreement shall be good: And if the Parson sue in the Ecclesiastical Court for the said Tithes, the Parishioner shall have a Prohibition; but if it be for more years than one, or before the Corn is sowed, this shall not be good, by Coke and Foster against Warburton; and Coke said it was so Adjudged in B. R. in Parson Booth 's Case, That a Contract made with a Parishioner for keeping back of his Tithes for so many years as he shall be Parson, was not good: and so it was Wellow 's Case here also: But it was Agreed by them all, That such a Contract or Agreement for the Tithes of any other was void; but only of the party himself, who was party to the Agreement, and that ought to be made by way of keeping them back. Vid. 20 H. 6. & 21 H. 7. 21. b. . Tithes cannot be granted without Deed: It was Agreed by the Justices in Bugg and Woodward 's Case, That an Agreement between a Parishioner and the Parson, that in consideration of twenty shillings per An. he should hold the Land discharged of Tithes during the life of the Parson, was not good to ground a Prohibition upon, for that the Grant of Tithes cannot be without Deed . The like in Hawks and Bryafield 's Case, in stay of Suit for Tithes in the Ecclesiastical Court, it was Surmized, That A. was seized of a Messuage and Lands in the Parish of D. and agreed with the Defendant being Parson, in Consideration of Ten pounds to be yearly paid by A. to the Defendant during their Joynt-lives and his continuing Parson, in satisfaction of all Tithes growing upon the same Lands, that he should hold the Lands without payment of Tithes. Resolved, it was not a sufficient Surmize to ground a Prohibition: For an Agreement to be discharged from payment of Tithes, for one year by word, may be good; but such an Agreement during the life of the Parson cannot be good without Deed .

Alms, or Things appointed for Alms, are not Tithable .

Animalia Utilia, such as Cows, Sheep, and the like, shall pay Tithes in kind.

Animalia Inutilia, as Oxen, Horses, and the like, though Tithe cannot be paid thereof in specie; yet for their depasturage, or what bargain is made for the same, Tithes shall be paid .

Apples: Suit in the Ecclesiastical Court for the Tithe thereof, in discharge whereof an Award or Arbitrement was there pleaded, and the plea refused; notwithstanding which a Prohibition was denied .

B

BArk of Timber Trees is not Tithable, but is privileged together with the Trees.

Barren Ground, which is suapte natura Barren, is not Tithable; but if Tithe-Wool and Tithe-Lamb have by Thirty years been paid for it, and after by Manurance is made Fertil, then for the first Seven years such Tithe shall be paid for it, as was paid before. Therefore Barren Heath or Waste-grounds, naturally Barren and not Manurable without extraordinary charge, may pay Tithe of Wool, Lamb, or the like; but being converted into Tillage, shall pay no Tithe of Corn or Hay for the first Seven years after such improvement; during which time it shall pay only such Tithe as was formerly paid: Otherwise it is, if it became barren only by ill Husbandry : Or if it became Barren by some accident of Inundation, or overgrown with Bushes, and after reduced again to Fertility; in that case it shall pay Tithes presently . Also Marsh-Lands newly gained from the Sea, and Fenn-Lands gained from the Fresh waters by Drayning, &c. are not within the Statute of 2 Ed. 6. c. 13. to be freed from the payment of Tithes during the first Seven years after the gaining thereof. Likewise, if Land be gained from the Sea, and that by great cost and expense, and afterwards turned to Arable-Land; it was the Opinion of the Court, that it shall pay Tithe notwithstanding the Costs, because it is not Barren Land of itself, but only by accident, and so not within the scope and intention of the Statute of 2 Ed. 6. . In the Case between Strowd and Hoskins upon a Prohibition, Two Points were Argued by the Four Justices, viz. (1) When a Prohibition is brought upon the Statute of 2 Ed. 6. to stay a Suit in the Ecclesiastical Court for Tithes of Barren-Lands the first Seven years • it behooves the party who brings the Prohibition, to prove his Suggestion within Six months, otherwise a Consultation by the said Statute is grantable. (2) When a Consultation is granted for the Reason aforesaid, yet the party may have a new Prohibition upon the same Libel; for that the Statute of 50 Ed. 3. doth not extend to a Consultation granted upon non-probate of a Suggestion within Six months, but where a Consultation is granted upon the matter of a Suggestion: And so the Chief Justice declared the Opinion of the Four Justices, and thereupon a Rule given, That the Prohibition should stand, and the Defendant notwithstanding such Plea aforesaid in Barr of the Prohibition, may plead in chief to the matter of the said Suggestion, and if he will dispute it, then he shall have several Consultations on the said Libel . Thus (as aforesaid) in a Prohibition for Tithes it was said by Papham Chief Justice, That if Lands be overflown with Water, and afterwards gained by Industry, Tithes shall be presently paid, although it had been overflown time out of mind; for those Lands of their nature were not barren, and the Statute of 2 Ed. 6. doth not intend, that Tithes shall not be paid within seven years, but of such Lands as were merely Barren, and made good by Foldage or other industrious means. And so it was Adjudged Pasch. 14 Jac. B. R. in the Case between Witt and Buck, in a Prohibition upon the Statute of 2 Ed. 6. cap. 13. the Clause touching Barren and Heath-ground, of which after improvement, no Tithes to be paid the space of Seven years next after the Improvement: For a Prohibition it was shown, That this Land, for which the Parson Libelled for Tithes, was Marsh and Sandy Land, and covered with Salt water, so that time out of mind no Grass had been known there to grow, nor any profit at all made of this, until now of late time, by and with the great costs, charges, and industry of the Tenant, this ground had been lately gained from the Sea, and from its overflowing, by repairing and making new Banks and Seawalls, and by continual repairing of them, and so he had now converted the same into Arable Land, where he had Corn, and of this Land the Parson Libels for Tithes in the Ecclesiastical Court: And upon this matter thus shown, a Prohibition prayed, being to be discharged from payment of Tithes of this Ground for Seven years; this Statute being thus made for the encouragement of Tenants to make improvement of their Lands. Coke Chief Justice, It was Resolved in one Farrington 's Case upon this Statute of 2 Ed. 6. that Wood-ground is not Barren ground within this Statute: This was there Adjudged, That if one do stock and grub up Wood-ground, and after convert this into Arable ground, he hath by this meliorated his Land, but with great cost and labor, yet he shall pay Tithes for this ground presently; for that Heath and barren-ground, intended to be within the Statute, ought to be such Land as is suapte natura sterilis, and Barren. Dederidge Justice, A Salt Marsh, if this be fenced and so made good Meadow, shall pay Tithes presently; yet before this was so fenced, no Tithes thereof payable. Coke, This Land shall be out of the Statute, out of the clause of Discharge for Seven years, notwithstanding this charge the Tenant hath been at in gaining this Land from the Sea; for to have this Land within the clause of Discharge within the Statute, it ought to be Suapte natura Barren, which here it is not, but by accident, and by the overflowing of the Sea. The whole Court agreed in this, That by this Statute Barren ground is such ground as will not bear Corn of it self, without very great cost in the extraordinary manuring of it; and therefore, that this is no such Barren ground within the Statute, as ought to be discharged from payment of Tithes, but that Tithes ought to be paid for the fame, and that the Parson had just cause to sue for his Tithes in the Ecclesiastical Court; and therefore the Prohibition was denied.

Beech -Trees, regularly are Tithable; yet in a County where there is a scarcity of Timber, and where Beech is used as Timber for Building or the like, there possibly they may be discharged of paying Tithes; and therefore in Trin. 38 Eliz. it was Resolved, That Tithes shall be paid of Beeches, although they are above twenty years growth, for they are not Timber. Yet in Holliday and Lee 's Case in a Prohibition it was Resolved, That Tithes should not be paid of Beeches of above twenty years growth . And in Pindar 's Case it was also Resolved, That Beeches above twenty years growth, being Timber, shall not pay Tithes ; yet in a Country where there is plenty thereof, they are not to be accounted Timber, or Tithe-free. So that Beeches in their own nature are not computed Timber-trees, and therefore Tithable, except where by the Custom of the Country, where there is scarcity of Wood, they are accounted Timber-trees, in which case they are not Tithable : The Judges of the Common Law have Resolved, That all sort of Wood that is usually employed for the building of Houses, Mills, &c. are Gross Woods, and within the Statute of 45 Ed. 3. cap. 3. of which sort are Oak, Ash, Elm, Beech, Horse-Beech, and Horn-bean, against the opinion in Molyn 's Case ; as also in Man and Somerton 's Case, where it was said by Tanfield Justice, That Beech by the Common Law is not Timber: and so he said it was Adjudged in Cary and Pagett 's Case; and in that case it was holden, That Tithes shall not be paid for Beech above the growth of twenty years in a common Country for Wood, as in Buckinghamshire, for there it is reputed Timber; but in a plentiful Country of Wood it is otherwise, for there it is not Timber, and Tithes shall be paid of it, as Sylva caedua, for which Tithes shall be paid under the growth of 20 years .

Bees pay not Tithes by the Tenth Swarm, but by the 10th measure of Honey, and the Tenth weight of Wax; and are Predial Tithes.

Birch -Trees are Tithable, though above 20 years growth ; and therefore in Foster and Leonard 's Case, in Attachment upon a Prohib. for Suing for Tithes of Great Wood, against the Stat. of 43. Ed. 3. it was Resolv. 1. That of Birch Tithes shall be paid, for that they are not such Wood as the Stat. intended, as serving for Building. 2. That Oak and Elm cut down before the age of 20 years shall pay Tithes; for till they are of that age, they are not of that value as the Law regardeth for the purposes aforesaid. Also in Foster and Peacock 's Case it was Resolved, That for Birch above the age of 20 years growth Tithes should be paid .

Bricks are not Tithable, as was Adjudged in the Case betwixt Liff and Watts .

Broom for Fuel spent in the Parish is not Tithable ; but if sold it shall pay Tithes, unless the Owner can prescribe or prove a Custom of Tithing Milk or Calves of Cattle kept on that ground; but regularly Tithe is not due of Broom spent for Fuel in the Parishioners house within the Parish .

C

CAlves are computed among the Mixt Tithes, which with Colts, Kidds, &c. are within the number of Tithes in kind; the Parson must have the Tenth thereof whenever it comes, if there be no Custom to the contrary; for it is a good Modus Decimandi for Tithes of Calves, to pay a Calf for Tithe, if he hath Seven in one year; and if under Seven, then to pay a halfpeny for every Calf for Tithes; and if he fell any Calf, he shall pay the Tenth part of the price . Calves (as also Lambs ) are Tithable when they are Weanable, and able to live without the Dam; if they be sold, the Parson hath for the most part the Tenth penny in most places, unless something be in the Custom against it: Also the Tithe of Calves, Colts, &c. is to be apportioned with respect to the places where they were engendered, brought forth, and nourished; but Custom must prevail.

Cattle kept only for the Plough and Pail pay no Tithe: also no Tithe shall be paid for the Pasture which is eaten by the Oxen of the Plough, or by the Cattle of the Pail. Mich. 9 Jac. Baxter & Hope, per Curiam. No Tithe shall be paid for Horses of the Plough, for the Parson hath the benefit of their labor in the Tithes of the Corn. Tithes are not due for the young Cattle, which a man rears for the Plough, for they are for the manuring of the Land whereof the Parson hath the Tithes. M. 14 Jac. B. Watley & Hanberry. Resolv. & Prohibition granted, Mich. 14. Jac. B. R. Joyse & Parker. Resolv. & Prohibition granted, Trin. 12 Jac. B. R. Maschal & Price, per Curiam. No Tithes are due for the young Cattle, which a man rears for his Dairy; dict. Cas. Joyse, & dict. Cas. Kneebon, Prohibition granted. If a man according to the Custom of the Country sow his Land to feed his Horses for Tillage, and the usage be to suffer the Horses to feed upon that Land, without any other meddling therewith, the Parson shall not have any Tithes thereof, for it is nothing but Pasture for such Horses. If a man buy or breed Cattle, seed them and sell them, he shall pay Tithes thereof; otherwise, if he buy or breed them, feed them and spend them in his own house. Nor shall a man that feeds Sheep on his Land, and after kills and eats them in his own house within the Parish, pay any Tithes thereof. If a man buy or breed Barren Cattle, as Oxen and Steers, and after sell them, he shall pay Tithes for their Pasture, for they cannot yield any other Tithes: otherwise it is of Barren Sheep, as of Weathers, for they can yield Tithe of their Wool. If a man keep Horses, which are Barren Cattle, to sell, and he sell them accordingly, he shall pay Tithes thereof. But it was Resolved in Facy and Long 's Case, That Tithes shall not be paid of any Cattle eaten in the Parishioners Family, no more than for Cattle reared for the Plough and Pail.

Cattle therefore or Beasts for the Plough or Pail are not Tithable, otherwise in case they be only kept for such use, till they be ready for the Plough or Pail, and then sold away, in such case they shall pay Tithe, being so sold for profit. And if they stray from one to another side of a Common belonging to two Parishes, no Tithe is payable for this to the Parson of the Parish where the Cattle do stray. And as Dry Cattle, though bred for the Plow, are Tithable, if they be sold away before they are put to that use: so also are Fatted Cattle, if they be sold or killed for the House, but according to the Custom of the place . Likewise for young Cattle, as Calves, Lambs, Colts, Piggs, &c. where their Dams are removed from one place to another, a Rate-Tithe is payable to the Parsons, according to the times of their abode in the several places, from the times of their engendering, by the Month-Rate . Also Cattle Tithable feeding in any waste place, not commonly known to be in any Parish, are Tithable to the Parson of the place where the Owner of the Cattle doth dwell. But if Cattle do feed one half of the year in one Parish, and the other half year in another Parish, the Tithe shall be equally divided between the two Parsons of both Parishes: so proportionably for a greater or less time, provided it be the space of a Month or 30 days; but of any less time than a Month, no Tithe is payable . If Cattle be pawned or pledged, the Gagee shall pay the Tithe of them, because he is Owner of them for the time; but if a man Bail Cattle or other goods to Re-bail, Tithes of them shall not be paid by the Bailee, because he hath no property in them, but only a Rebailer .

Chalk and Chalk-pits are not Tithable.

Cheese paying Tithe, exempts the payment of Tithe-Milk whereof the Cheese is made. Et e contra. So that Cheese is not Tithable where the Milk is Tithed. Et vice versa. Therefore to prescribe to pay the Tenth Cheese between May and August for all Tithe-Milk within the year, and not the Tenth part of the Milk, may be a good Prescription . And where Milk is Tithed in kind, there no Tithe-Cheese is due: In which case, as in all others of Tithing, the Custom of the place is to be observed.

Cherry-Trees in Buckinghamshire have been adjudged Timber, and Tithe-free .

Chicken of all Tame-Fowl are Tithed in kind, according to the Custom of the place. No Tithe shall be paid of Chicken, for that there is paid Tithe-Eggs; and Prohibition granted. Hill. 15 Jac. B. R. Resolved.

Clay is not Tithable .

Clothes Fulled in a Fulling-Mill pay no Tithes .

Coles are not Tithable; therefore a Prescription de non Decimando (as to that) is good . No Tithes shall be paid de jure for Cole. Hill. 14 Jac. B. R. per Houghton.

Common of Estovers, or the Wood which a man burns in his house, doth not pay Tithes.

Composition Real, is one of the ways or means whereby Tithes may be discharged: It is where the Incumbent, Patron, and Ordinary, by Deed or Fine, do agree that such Lands shall forever be freed and discharged of all manner of Tithes paying an Annual payment, or doing some other thing for the profit or advantage of that Parson or Vicar to whom the Tithes did belong , from which Compositions all Prescriptions de Modo Decimandi have, or should have had their Original. But these Real Compositions, so as to oblige the Successor of the Parson or Vicar that made the same, seem now to be restrained by the Statute of 13 Eliz. cap. 10. whereby they are prohibited from making any Grant for above 21 years or three Lives, and that with the accustomed yearly Rent reserved. And if the Parson or Vicar make any Composition with his Parishioner without his Patron and Ordinary, it shall bind only for the Parsons life, and during his Incumbency. This Composition is either between Parson and Parishioner, or inter Clericos; if it be between Parson and Parishioner, and it be touching Tithes past, the Composition is good, though it were without any Consideration at all; but if it be touching Tithes to come, it may be good as to a payment of Tithes only in part, but not good as to a non-payment of any Tithes at all; nor is it good in part without the Bishops approbation and confirmation. If the Composition be inter Clericos, and the Tithes be Personal Tithes, it holdeth not: but if they be Predial Tithes, the Composition holdeth, the Approbation of the Bishop of the Diocese being thereunto had. So that Composition for the remitting or entirely taking away of Tithes it not good in Law; but a Composition with the Parson or Vicar to have but the Thirteenth Sheaf for his Tithe, was held to be a good Composition, and should bind the Parson . Composition may likewise prevent the payment of Tithes in kind; and if it be made with a Parson or Vicar to pay a Modus Decimandi, which hath continued time out of mind, Custom being equivalent to Law, it is good, and shall bind the Parson and his Successors ; and although a Modus Decimandi cannot begin at this day, but must be by Prescription, yet a Composition may be made, which shall bind during the life of him that made it . The Case was, A Vicar did contract with his Parishioner to pay so much for increase of Tithes, and died: his Successor sued in the Ecclesiastical Court for them. A Prohibition in this case was granted by the Court. The words of the Contract were ( inter se convenerunt: ) It was holden, that this was not a Real Composition, although that the Bishop did call it Realis Compositio, for his calling of it so, doth not alter the nature of it; but it remains a Personal Contract, and so shall not bind his Successor, although it were confirmed by the Bishop. It was said by Mallet Justice in this case, A Real Contract, although it be made between Spiritual persons, and of Spiritual things, is only questionable at the Common Law . Composition shall bind during the life of him that made it, though not his Successors .

Coneys taken in a Warren shall pay Tithes; yet they are not Predial, but Personal Tithes. Sed Q. whether Tithes shall be paid of them; because Berkley Justice, They are not Tithable but by Custom, 15 Car. B. R. For no Tithes de jure without a Custom ought to be paid for them, for they are Ferae naturae, Trin. 8. Car. B. R. Worden & Bennet 's Case; after a Prohibition granted, a Consultation denied per Curiam for the reason aforesaid. Pasch. 13 Car. B. R. Sir Jo. Brewen & Dr. Bradish 's Case per Cur. a Prohibition granted, and Hill. 13 Car. B. Vincent and Tutt 's Case, Prohibition granted, and for Prohibition pleaded by the Parson to have them by Prescription. Mich. 14 Car. B. R. Williams and Wilcock 's Case. Or if a man steals Coneys out of a Warren, he shall pay no Tithes of them, because the Law gives him no property in them; nor shall the right Owner pay any Tithes of them, because he hath no profit by them.

Corn pays a Predial Tithe, as that which comes partly by the Industry of Man, and partly of the Earth. Mich. 8 Jac. C. B. Magna Charta 649. And if a Custom be alleged, That the Parson shall have but the Tenth Sheaf of Wheat for all the Tithes of all manner of Corn and Grain, this is no good Custom . Yet Corn of all kinds fowed is Tithable according to the Custom of the place; and is commonly Tithed by the Tenth Shock, Cock, or Sheaf, where the Custom of the place is not otherwise; but not to put the Parsons Tenth up on end in Shocks, unless the Custom of the place be so . And if the Owner will not cut his Corn before it be spoiled, the Parson is without remedy . And if he doth change the Corn or Grain fowed in the same ground, such change of the Corn so sowed doth change the Tithe to the same kind of that Grain. And if a man pay Tithe of Corn, he shall not pay any Tithe for the Stubble, which grew the same year on that Land. Hill. 6 Jac. B. pl. 13. Smiths Case per Cur. & Case ibid. Pasch. 7 Jac. per Cur. & Mich. 9 Jac. Baxter & Hope, for the Aftergrass, & 2 H. 4. Rot. Par. nu 93. No Tithes for the Agistment in such After-pasture. And if the Parson hath Tithes of Corn one year, and the Land be left without Seed the next year, that so it may be Plowed and made ready for Seed the the third year, no Tithes shall be paid the second; for by lying fresh the Land is the better, and the Parson will have the better Tithes the third year. Pasch. 7 Jac. Smith 's Case. By the Statute of 2 Ed. 6. cap. 13. the Parson or Vicar is privileged to come upon the Land to see the Tithes set forth: For by the said Statute it is Enacted, That at the Tithing time of Predial Tithes, it shall be lawful for any to whom Tithes are payable, or for his Deputy or Servant to see the said Tithes to be set forth and severed from the Nine parts, and quietly to take and carry them away. And as the Parsons Rights are hereby secured from the danger of having his Predial Tithes subtracted: so likewise the Law hath provided nor only for the prevention of his being defrauded therein, and for his quiet removal and carrying the same away; but also for an open, free, and unmolested way and passage through which to carry the same away, as appears by Halsey 's Case. The Case was this: H. procured a Prohibition against H. and declared, that the Defendant had sued him in the Ecclesiastical Court for a Way or Passage; he was Proprietor of Tithes in the Parish of M. and that the Common way to carry the Tithes out of the Plaintiffs Land was by a Close called S. and that the Plaintiff had stopped it up, when in very truth the Way was by Prescription by a Close called W. and that he had pleaded it in the Ecclesiastical Court, and the said Court would not allow thereof, and for that the Cognizance of a Prescription for a Way ought to be tried at the Common Law, and not in the said Court, &c. Whereupon the Defendant demurred, and by the Opinion of the whole Court a Consultation was granted; for that the Cognizance of Waies for the carrying of Tithes belongs to the Court Christian, as appears by the Statute of 2 Ed. 6. and Fitzh. N. B. in Consultation, and Lindwood de Decim. When Tithes of Corn are severed from the Nine parts, an Action. of Trespass lieth against any that shall take them away, whether he be the Owner of the Land or a Stranger . Also an Action of Debt lieth for Predial Tithes, as of Corn, Wood, Grass, Fruit, Hay, &c. and treble Dammages recoverable upon the said Statute of 2 Ed. 6. 13. But not so for lesser Tithes, as of Wool, Lamb, &c. nor for money given to the Parson in lieu thereof; but for each of these Suit may be commenced according to the Statutes of 27 H. 8. and 2 Ed. 6. 13. & 32 H. 8. 7. . So that if the Owner of the Corn set out his Tithes, and after take it away, the Parson may sue him in the Ecclesiastical Court, or bring an Action of Trespass against him: But the Parson may not sue a Stranger in the Ecclesiastical Court for taking away the Tithes which were set out. In Hele 's Case against Frettenden, the Resolution of the Court upon Two Cases upon the Statute of 2 Ed. 6. for not setting forth of Tithes was this, viz. A man possessed of Corn sells it, and before Two Witnesses sets out his Tithes, and afterwards privily takes away the Tithes; and the Parson sues him upon the Statute for Treble damages, for not setting forth of Tithes: And the Defendant proves by Witnesses that he set forth his Tithes; yet the Fraud is provided against by the Statute, for the words are [ without fraud or deceit. ] In the second Case, One secretly fells his Corn to one who was not known, and afterwards the Vendee commands the Vendor to cut the Corn, which he doth, and takes away the whole Corn without setting forth his Tithes; the Question was, who should be sued for the Tithes: and the Court held, that the first Vendor should be sued, for it was Fraudulent. And where a Woman, being Proprietor of a Parsonage took A. to Husband; a Parishioner within the Parish set forth his Tithes and divided them, and then immediately took them back again; A. the Husband alone sued for the Treble value according to the Statute of 2 Ed. 6. Two points were moved, (1) Whether that were a setting forth within the Statute? And by the Court, that it was not; and so hath been Adjudged in 43 & 44 Eliz. and 1 Jac. (2) Whether the Husband may sue for the Treble value without naming his Wife? And to that the Court would be Advised; for though the Husband may sue alone, where a thing is Personal for which he sueth, as the Books of 4 Ed. 4. 31. 7 Ed 4. 6. 15 Ed. 4. 5, & 11. are; yet where the Statute saith, That the Proprietor shall have Suit for the not setting forth, &c. the Husband is not intended Proprietor as the Statute intends, but the Wife, and for that the Wife ought to join. For the due manner of Tithing Corn, the Parishioner ought of Common right to cut the same, and to prepare it for the Parson, and to separate it from the Nine parts; he ought also of Common right to make up the Corn into Sheaves, but is not obliged to gather and set it up into Hillocks or Heaps, for the manner of Tithing is good, if the Corn be thrown out in Shocks; and being so set out they become Lay-Chattels. In Guin and Merryweather 's Case it was said by Doddridge Justice, That if one defame and scandalize the Parson's Title to the Tithes, although he be not punishable for this in the Temporal Courts, yet he is punishable in the Ecclesiastical Court; he said also, that when Tithes are set out, they are then Lay-Chattels, and if a Stranger carry them away, the Action lies not in the Ecclesiastical, but Temporal Court; otherwise it is, if it were not severed from the Nine parts. Ley Chief Justice Agreed it, and said, That if a Stranger take the Corn before Severance of the Tithes, the Parson shall sue in the Ecclesiastical Court for Tithes against the Trespasser, and not against the Terre-Tenant: And where the Right of Tithes comes in question, Prohibition shall not be granted. Nor shall Fraud or Covin prevent the payment of Tithes; for in a Case of Tithe-Corn, where the Custom of L. in the County of B. was alleged, That the Parson ought to have the Tenth Land of Corn, beginning at the such Land which was next to the Church; the Occupiers of the Land, to defraud the Parson by Covin, did not sow the Tenth-Land, nor manure it; yet the Parson sued for Tithe in kind, to have the Tenth-Cock for Tithe of the Corn sowed, and a Prohibition awarded notwithstanding the Covin, because he had Remedy at the Common Law for the Fraud.

Cows that yield Milk, no Tithe is to be paid for the Pasture thereof; and if a man hath but one Cow, and no Cheese made of the Milk thereof, the Custom of the place must be observed, so that something be paid for the Tithe thereof, otherwise no Custom will bind.

Curtelages, or places adjoining to Mansion-houses, and applied to Seeds, Herbs, &c. are Tithable in kind, if the Parson make not an Agreement for the same; otherwise it must be Tithed in kind, by setting forth the Tenth-part for the Parson when the Owner receives his Nine parts.

Custom is, where a Right to many is procured in Common and Public: as Prescription is privately to one. If the Custom be of translating of Tithes Predial (as in Composition) then it holdeth: Otherwise, if it be of Tithes Personal. But if it be of not yielding Tithes at all, it doth not hold; for a Custom of paying nothing at all, is not good; but if it be only of yielding less than the Tenth, it holdeth both in Personal and Predial Tithes. It holdeth also as to the Place where Tithes ought to be left, of the Time when to be yielded, as also of the manner and form of yielding them. So that although Custom (which chiefly refers to a Place, as Prescription) doth to a Person cannot totally take the Tithes away, yet it may limit and moderate the payment thereof. Notwithstanding in some places and cases, a Custom applied to a Country to pay no Tithe (as in 40 Parishes for the Wild in Sussex ) is good; but generally such a Custom is not good. Likewise, a Custom tending to the impoverishment of the Parson or Vicar is no good Custom. Mich. 11 Jac. C. B. inter Jux and Sir Charles Candish. Likewise a Custom to pay Tithes truly, without view of the Parson; is not good . Also a Custom alleged to pay the Tenth Sheaf of Wheat for the Tithe of all manner of Corn and Grain, is not a good Custom. dict. Cas. Jux & 38 Eliz. C. B. Adjudg. But a Custom to pay Tithe-Wool at Lammas-day, though due at Shearing, is good . But such is the strength of a Custom, that it cannot be discharged by a verbal Agreement for Money . Custom may make that Tithable, which of itself is not Tithable ; and may alter Tithes in any other thing, which will be a Modus Decimandi, sufficient to bind the Parson and his Successors . Custom is properly Triable at the Common Law upon a Prohibition; but a Consultation may be granted on a Prohibition granted on a Surmize not proved within Six months; as was Adjudged, Hill. 6 Jac. C. B. in Cas. inter Sharp and Sharp. No • . Rep. Custom and Prescription; both ought to be without interruption Constant, and beyond the memory of man Perpetual, that is, no man in being remembers to the contrary; for it seems, if any man, or any Authentic Record, or other sufficient Evidence can prove it was otherwise at any time since the first of R. 1. viz. 1189. the Custom or Prescription at Common Law would not hold . Albeit by the Statute of 2 Ed. 6. c. 13. Tithes are to be yielded and paid as of right they had been within 40 years next before; which time somewhat agrees with the Ecclesiastical Computation: And by the Statute of 27 H. 8. c. 20. they are to be paid according to the Ecclesiastical Laws and Ordinances, after the laudable Usages and Customs of the Parish; which was also after confirmed (as to the lawful Usage and Custom) by the Stat. of 32 H. 8. 7.

D

DEcimae Majores. such as Corn, Hay, &c. belong to the Parson: Decimae Minores or Minutae, as Saffron, Herbs, &c do belong to the Vicar. Pasch. 38 Eliz. B. R. Beding and Feak 's Case. & Mich. 1 Car. C. B. Sir Rich. Udal and the Vicar of Alton 's Case.

Deer, though they are Ferae naturae, yet they may be given for Tithes; and although they are not Tithable of themselves, yet they may be given for a Modus Decimandi. Hill. 6 Jac. C. B. the Vicar of Clare 's Case. Sharp and Sharp 's Case. Noy 148. acc.

Deprivation: A Parson may after his Deprivation sue in the Ecclesiastical Court for subtraction of Tithes, which were due to him before his Deprivation, and a Prohibition will not lie in the Case. Adjudged, Hill. 13 Jac. Cole 's Case.

Discharge of Tithes may be either by Custom, Prescription, Composition, Statute, Unity of Possession, or by Privilege, as to Religious Orders now not of use . There may be also a Discharge of Tithes as against the Vicar, by the payment thereof unto the Parson . And it may be by a Real Composition , but it cannot be by a Verbal Agreement for money . And if there be a Discharge not of the Tithes themselves, but from the exact payment thereof by a Modus Decimandi, or Annual recompense in satisfaction thereof, it must be by Custom or Prescription . By the Common Law a Lay-man, although he were capable of a Discharge of Tithes by Grant of the Parson, Patron, and Ordinary, or by Composition; yet at that Law none had a capacity to take or receive them, save only Ecclesiastical persons, or a Mixt person, as the King . And by the same Law, if a Bishop were absolutely Discharged of Tithes by Prescription, whilst the Lands were in his hands, his Demising thereof to a Lay-man could not make the same chargeable therewith . For in Wright 's Case, where the Bishop of W. was seized of a Manor in right of his Bishopric, Prescribed that he and all his Predecessors had held the said Manor, and the Demesns thereof time out of mind for him, his Farmers, Tenants for years or at will, Discharged and acquitted from payment of Tithes for these Lands; the Bishop made a Lease for years of parcel of the Demesns: The Farmer of the Rectory Libelled in the Ecclesiast Court against the Lessee for Tithes; all which matter he pleaded in the Ecclesiastical Court, and the Judge there refused to allow of the Allegation in Discharge of the Tithes: It was held in this case, (1) That if the Lands of the Bishop were absolutely Discharged in his hands by Prescription, the Demising of it to a Lay-man could not make it chargeable with Tithes. (2) That a Spiritual person may Prescribe in non Decimando. (3) That the Refusal by the Ecclesiastical Judge to allow the Allegation in Discharge of Tithes, is not Traversable . In like manner the King being seised of Lands, parcel of the Forest of B. in Fee in right of the Crown, Discharged of the payment of Tithes, granted the Lands to the Earl of Hertford in Fee; and it was held, that the Patentee should be Discharged of payment of Tithes; and a Prohibition was granted in that Case . Yet in another Case, where it was surmized for a Prohibition, that the Prior of B. was seised of Lands, parcel of his Priory, and held them till the dissolution, Discharged of Tithes, for his Farmers and Tenants for life or years; that the Priory was dissolved 27 H. 8. that the King was seised of the Lands, and shows the Statutes of 32 H. 8. and 2 Ed. 6. and that the King died seised of the Lands, that by mean Conveyances it was conveyed to J. S. and that the Plaintiff being his Tenant for years, was sued by the Parson of B. for the Tithes of these Lands. It was Resolved by the Court, That the Lands which came to the Crown by the Statute of 27 H. 8. should not be Discharged from the payment of Tithes, but should pay the same, although the Lands in the hands of the said Religious Persons or Houses were Discharged from the payment thereof, for that the Privileges were Personal Privileges, which were extinguished by the said Statute of Dissolutions, and there are not any words in the said Statute of 27 H. 8. to save the Privileges; and the Statute of 31 H. 8. being a subsequent Law, had not respect to these Privileges . Likewise, where a Parson by Deed Indented leased his Glebe cum omnibus proficuis & Commoditatibus: It was notwithstanding Adjudged, that the Lessee should be charged with the payment of Tithes. And in Branches Case it was Resolved, That an Union of Copyhold Lands, and of the Parsonage in the hands of the Parson, as Parson Imparsonee, was no Discharge of the Tithes of the Copyhold Lands. And in this Case it was also Adjudged, That a Farmer of Lands might Prescribe in Modo Decimandi, but not in non Decimando.

The Statute of 31 H. 8. gave all Colleges Dissolved to the Crown, in which there is a Clause, That the King and his Patentees should hold Discharged of Tithes, as the Abbots held: Afterwards the Statute of 1 Ed. 6. gave all Colleges to the Crown; but there is in it no Clause of the Discharge of Tithes: The Parson Libelled in the Ecclesiastical Court; and the Farmer of the Lands of the College of Maidstone in Kent brought a Prohibition upon the Statute of 31 H. 8. The Court was clear of Opinion, That the King had the Lands of the College by the Statute of 1 Ed. 6. and not by the Statute of 31 H. 8. But the Justices doubted, the Lands coming to the King by that Statute, whether they should be Discharged of Tithes by the Statute of 31 H. 8. there being no Clause in the Statute of 1 Ed. 6. for Discharge of Tithes: But it was Resolved by the Justices, That Unity without Composition or Prescription, was a sufficient Discharge of Tithes by the Statute of 31 H. 8.

The Templars were Dissolved, and their Possessions and Privileges by Act of Parliament 17 Ed. 2. transferred to St. Johns of Jerusalem; and their Possessions by Act of Parliament 32 H. 8. cap. 24. given to the King: It was Resolved, That the King and his Patentees should pay Tithes of those Lands, although the Lands propriis sumptibus excolantur, because the Privileges to be Discharged of Tithes were proper to Spiritual persons, and ceased when the person Spiritual was removed: And the Statute of 31 H. 8. of Dissolutions did not extend to such Lands as came to the King by Special Act of Parliament, as those Lands of St. Johns of Jerusalem did. And Mich. 6. Jac. C. B. in a Case de Modo Decimandi it was said, That one may be Discharged of Tithes five ways: (1) By the Law of the Realm, viz. the Common Law, as tithes shall not be paid of Coles, Quarries, Bricks, Tiles, &c. F. N. B. 53. and Reg. 54. nor of the After-pasture of a Meadow, &c. nor of Rakings, nor of Wood to make Pales, or Mounds, or Hedges, &c. (2) By the Statutes of the Realm, as 31 H. 8. 13. 45. Ed. 3. &c. (3) By Privilege, as those of St. Johns of Jerusalem in England, the Cistertains, Templars, &c. as appears 10 H. 7. 277. Dyer. (4) By Prescription; as by Modus Decimandi, annual recompense in satisfaction. (5) By real Composition. By all which it appears, that a man may be Discharged of payment of Tithes; yet a Lay-man ought not to prescribe in non Decimando, albeit the may in modo Decimandi. And this in effect agrees with Tho. Aquinas in his Secunda Secundae, Quaest. 86. art. ult. vid. Dr. & Stu. lib. 2. c. 55. fo. 164. And the Causes why the Judges of the Common Law permit not the Ecclesiastical Judges to try Modum Decimandi, being pleaded in their Courts, is, because that if the Recompence which is to be given to the Parson in satisfaction of his Tithes, doth not amount to the value of this Tithes in kind, they might overthrow the same: And that appears by Lindwood, Constit. Mepham. de Decim. c. Quoniam propter, verb. Consuetudines. For this Reason it is said a Prohibition lies: and therewith agrees 8 Ed. 4. 14. vid. 7 Ed. 6. Dyer 79. and 18 Eliz. Dyer 349.

In a Prohibition upon a Suit in the Ecclesiastical Court, by the Defendant the Vicar of D. for Tithes: A Prohibition prayed upon his Plea thereof a Modus Decimandi, to pay so much yearly to the Parson of Dale, in Discharge of his Tithes and the same Plea there disallowed. The whole Court agreed, that this Modus between him and the Parson, will not discharge him from payment of Tithes, as to the Vicar; and therefore by the Rule of the Court a Consultation was granted. Also the Court was of Opinion, That where a Bishop holds Lands discharged of Tithes, and he makes a Feoffment of the Land, the Feoffee shall be discharged of Tithes; and the like, if the King hath ancient Forest Lands discharges of Tithes, and the King grants this Land, the Grantee is discharged of Tithes: And it is a General Rule, That he which may have Tithes, may be Discharged of Tithes. So long as the Land is occupied by him who hath the Fee-simple, which did formerly belong to the Order of Cistertians, it shall pay no Tithes; but if he lett it for years or life, the Tenant shall pay Tithes. For anciently there were many large Estates wholly exempted from paying Tithes, as Land belonging to the said Cistertian Monks to the Knights Templars, and Hospitallers: As in the Earl of Clanrickard 's Case, who Libelled in the Ecclesiastical Court for the Tithes of Hay of a certain Meadow against Dame Denton, who pleaded, That the Prior of A. was seised of that Meadow as parcel of the Possessions of the Priory, and that they held it discharged time out of mind, &c. whereupon Issue was joined upon a Prohibition, and it was found for the Plaintiff; for that the Land was only discharged when it was in the hands of the Priory, and not when it was in the hands of their Farmers, and they were of the Order of Cistertians, whereupon a Consultation was granted: And now a new Prohibition was prayed, for that in the Ecclesiastical Court they had added to the former Libel, when the Statute of 50 Ed. 3. cap. 4. is, That whereas a Consultation is duly granted upon a Prohibition, that the same Judge may proceed in the same case by virtue of the former Consultation, notwithstanding any other Prohibition. Provided always, that the matter in the Libel of the said cause be not altered, enlarged, or otherwise changed; Dr. Pope, Doctor of the Civil Law said, That there was not any enlarging or changing in substance of the Libel in question; for whereas in the former Libel it was, That they had used to pay Tithes time out of mind, now in the second Libel is added, That although the Prior was discharged, yet they, viz. the Farmers, have paid Tithes for 20, 30 or 40 years, and time out of mind. Montague Ch. Justice said, That it seemed that that was not an alteration: but Doddridge and Houghton Justices held, That that was an alteration of the Libel; for now by that last Libel, They could fetch them in for Tithes, though they were discharged in the hands of the Abbot: and for that the Tithes had been paid for 20, 30 or 40 years since the Statute aforesaid (the which is a sufficient time to make a Prescription, according to the Law of the Civilians ) they would charge the Land with Tithes in whose soever hands they are, when by the Statute it ought to be discharged only in the hands of some, viz. the Priors; and afterwards Dr. Pope pulled off the Addition, which he had made to the former Libel, off from the second Libel. And the whole Court said, That if he proceeded upon that Addition, that Sentence shall be given for Tithes, upon any Prescription since the Statute, that then they would grant a Prohibition. Mich. 18. Jac. B. R. Dame Denton 's Case and the Count of Clanrickard. Roll. Rep. par. 2.

The Order of the Praemonstracenses were Discharged of all Tithes of their Land, the which Manibus aut sumptibus excolebant propriis. All the Chief Monks paid Tithe as well as other men, till Pope Paschal at the Council of Mainz Ordained, that they should not pay Tithes de Laboribus suis; and that continued as a general Discharge till the time of H. 2. when Pope Adrian restrained it to three Orders, viz. the Cistertians, the Templars, and the Hospitallers. And the Discharge which the Order of the Praemonstracenses had, was made by Pope Innocent the Third, by his Bull. And after in the Council of Lateran, ne Ecclesia nimium gravaretur, it was provided, That the Privilege of the Templars should not extend to their Farmers. Vid. Case Dickenson and Greenhall. Mich. 22. Jac. B. R. Roll. Rep. 2. part.

In Hurrey 's Case against Boyer in a Prohibition to the Ecclesiastical Court, for stay of a Suit there for Tithes of Lands, which were the possessions of the Hospital of St. John of Jerusalem, upon Suggestion that the Prior of the said Dissolved House of St. Johns had this Privilege from Rome, which was by divers Councils and Canons; viz. That the Lands of their Predecessors, which by their own hands and costs they did Till, they were not obliged to pay Tithes. In this Case it was agreed, That this Hospital was not Dissolved by the Statute of 31 H. 8. c. 18. of Dissolutions, but by a Special Act made 32 H. 8. c. 24. by which their Corporation and Order was Dissolved, and their Possessions given to the King, with all the Privileges and Immunities thereto belonging, which the King granted to the Plaintiff in the Prohibition; and whether he should hold them Discharged of the payment of Tithes was the question. Harris Serjeant urged, That this Immunity was annexed to the Corporation of the Prior, and his Brethren of the said Hospital, and doth not come to the King, it being determined by the Dissolution of the said Hospital; and so Adjudged in B. R. against the Book of 10 Eliz. Dyer. 277. 60. 2. Coke, the Bishop of Winchester 's Case, 14. B. and the Archbishop of Canterbury 's Case, 47. B. and 18 Eliz. Dyer 349. 16. Nichols Serjeant to the contrary, and cited a Canon made by the Council of Mag. and another made by Innocent. 3. An. 1215. and divers others, and also the Statute of 2 H. 4. 4. and 7 H. 4. 6. and if Land be Discharged of payment of Tithes by Prescription of not Tithing, and this Land come to the King, the Privilege remains; and these Lands are given to the King in the same plight and case, as they were in the Hospitallers; and affirmed the Book of 10 Eliz. Dyer 277. 60. to be good Law; and that the aforementioned Cases of the Archbishop of Canterbury and the Bishop of Winchester, and the words of the Statute of 32 H. 8. 24. gives the King not only the Manors, Houses, &c. but also all Liberties, Franchises, Privileges, &c. In this Case it was Confessed, that it came by reason of the Order of the Cestertians, as appears by the Canon: And Hutton Serjeant arguing for the Defendant, said, that it appears by the Statute of 2 H. 4. 4. that it is Personal, and that it differs from the Lands which came to the King by the Statute of 31 H. 8. For by that the King is Discharged of payment of Tithes, and so are his Patentees; but that this Privilege is Personal, and if so, then it is determined by dissolution of the other, and a personal Privilege in case of Tithe is not transferred to the King. Barker Serjeant for the Plaintiff in this case said, That it was Ordained by Edgar, King of this Realm, that Tithes shall be given to the Mother-Church: Also Edmund, Ethelstone, William the Conqueror, and the Council of Magans, specially provided that Tithes should be paid, but did not appoint when they should be paid. But the first Law which appointed the quantity, was made in the time of Ed. 1. and this Ordained when they ought to pay the Tenth with the fear of God. And before the Council of Lateran everyone might pay his Tithes to what Parson he would, and then were paid to Monasteries as Oblations. If a Parson in one Parish claim Tithes in another, as portion of Tithes due by Prescription to his Rectory, he ought to show the place especially, viz. the place where the Tithes lie. In the Seventeenth year of Ed. 2. the Order of the Templars was dissolved, and their Possessions annexed to St. John of Jerusalem: and they did not claim by any Bull of the Pope, nor other Spiritual Canon, but by Prescription, which is Privilege and private Common Law, as appears by the Statute of Westm. 2. cap. 74. And Menham 's Canon in the time of Ed. 1. saith, Let the Custom be observed. And another Canon, That Custom of not Tithing, or of the manner of Tithing, if they paid less than the Tenth part, shall be observed. Vid. Panormitan. & Cas. Hurrey verse. Boyer, Brownl. Rep. & dict. Cas. Pasch. 9 Jac. Rot. 1511. C. B. Brownl. Rep. par. 2.

In the Bishop of Winchester 's Case, 38 Eliz. it was Resolved, That at the Common Law none had capacity to take Tithes but Spiritual persons, or Persona mixta, as the King▪ and regularly no mere Lay-man was capable of them (except in special Cases;) for he could not Sue for them in the Court Christian; and regularly a Lay-man had no remedy for them until the 32 H. 8. A Lay-man may be Discharged of Tithes at the Common Law by Grant, or by Composition, but not by Prescription; for in the Books of the Common Law it is commonly said, That a Law-man may Prescribe In Modo Decimandi, but not In non Decimando: And the reason is, because he is not (except in Special Cases) capable of Tithes at the Common Law, before the Statute of 32 H. 8. cap. 7. And therefore without Special matter shown, it shall not be intended that he hath any lawful Discharge, and in favor of the Holy Church (although it may have a lawful Commencement) the Law will not suffer this Prescription, In non Decimando, to put it to the Trial of Lay-men. A Spiritual person that was capable of Tithes at the Common Law in Pernancy, may Prescribe to be Discharged of Tithes generally, or to have a portion of Tithes in the Land of another. Before the Council of Lateran, every man might give his Tithes to any Spiritual person that he would; and if the Lands of the Bishop were Discharged in his hands absolutely by Prescription, the Demising it to a Lay-man cannot make it chargeable, and the Bishop might reserve the greater Rent.

A Parson by Deed Indented leaseth his Glebe, cum omnibus proficuis & commoditatibus: It was notwithstanding Adjudged, that the Lessee shall be charged with the payment of Tithes. And in an Action of Debt upon the Statute of 2 Ed. 6. for not setting forth of Tithes; the Case was, The Lands were a parcel of the possession of the Templars, whose Lands were annexed to the Priory of St. Johns. The Templars had a Special Privilege to be Discharged of Tithes of those Lands, which propriis manibus excolunt. By a Special Act of 32 H. 8. the Possessions of the Priory of St Johns, were given to the King by general words of all Lands in tam amplis modo, &c. as the Abbots held them. Resolved, That the Defendant should not be Discharged, nor have the Privilege; for by the Common Law a Lay-person was not capable of such a Privilege, and the King should not have the benefit of the Privilege, until the Stat. of 31 H. 8. But the Statute extends only to such Possessions as came to the King by Surrender, and should be vested in him by that Act, and doth not extend to Possessions which are vested in him by another Act. and these Lands were given to the King by a Special Act of Parliament, and therefore not Discharged of Tithes.

Dotards, or the Branches of Trees of twenty years growth or upward, are not Tithable .

Doves in a Dove-house do pay Personal, not Predial Tithes , but if stol • out of a Dove-house, no Tithe is to be paid of such . Tithes shall be paid de jure of young Pigeons. Mich. 14 Jac. B. between Whatley and Hambury Resolved. Hill. 15 Jac. B. R. Resolved, and a Prohibition denied in Gastrell 's Case. By Custom Tithes may be paid of Pigeons spent in a man's own house, but not so of Common right. Case ibid. But if sold, they shall pay Tithe. dict. Cas. Whatly.

E

EGgs are Tithed in kind, or according to the Custom of the place, which serves for the Tithe of the Tame and Domestic Fowl, where their young are not paid in kind; and where Tithe of Eggs is paid, there is no Tithe of the young: And so vice versa, where the Tithe of the Young is paid, there no Tithes of Eggs may be demanded.

F

FAllow -Grounds pay no Tithe for these years wherein they lie Fallow, nor is the Pasture thereof Tithable, unless it be kept Lay beyond the course of Husbandry; for if Land lie Fallow every two or three years, the same is a charge unto the Owner and Tenant for that time, and an advantage to the Parson in the bettering of his Crop the year following, when the same is sowed with Corn or Grain; and therefore, although the Grass and feeding of the Fallow-ground for that year be some small profit to the Owner of the Soil, yet he shall not pay Tithe for the same, as hath been Adjudged . Yet it was afterward Adjudged , That if Lands be Tithable, and the Tenant or Occupier of the Land will not Plough it, or Manure it, especially thereby to prejudice the Parson; that in such case the Parson may Sue the Tenant in the Ecclesiastical Court to have Tithe of that Land.

Ferae naturae, Beasts and Birds that are such are not Tithable , till they become tame and profitable to the Owner, that is till they are reduced to a Tameness and Property; yet it hath been held, that Tithes are not payable for tame Turkies, Pheasants, or Partridges, nor for their Eggs . Although Beasts Ferae naturae, as Bucks, Does, Pheasants, &c. are not Tithable of themselves; yet they may be given for Tithes, or for a Modus Decimandi, as a great Tree may be given for Tithe of Trees tithable . And as things which are Ferae naturae, whereof a man hath not an absolute property, are not Tithable: so likewise of things which are merely for Pleasure Tithes shall not be paid .

Fenny-Lands drained and made Arable do pay Tithes , notwithstanding the Statute of Barren Land .

Fish taken in the Sea, are by the Custom of the Realm Tithable, not by the Tenth Fish, but some small Sum of Money in consideration of a Tithe . But if taken in a Pond, or in a several Piscary, then they are Tithable by the Owner thereof as a Predial Tithe, and as such ought to be set forth according to the Statute of 2 Ed. 6. Trin. 8 Jac. C. B. the Earl of Desmond 's Case. Mich. 15 Car. B. R. Adjudg. acc. vid. Trin. 9 Car. B. R. Yet it is said, that Fishers, Fowlers, and Hunters, not for pleasure, but by way of Trade for profit, pay some Tithe by usage in nature of a personal Tithe to the Parson or Vicar where they inhabit, though they take their Fish, Fowl, &c. in another Parish; but if they paid Money to another in that other Parish for this liberty of Fishing, &c. then he that takes that Money, must pay as a Predial Tithe to the Parson of that other Parish where he inhabits. Fish taken in the Sea, being Ferae naturae, are not understood to be Regularly, but Customarily only, Tithable, as in Cornwall, Wales, Yarmouth, &c. . And so it hath been Resolved ; albeit in the said Case of the E. of Desmond it was held, that they were Tithable by the Custom of the Realm: In which case it is more probable, that the Fishers pay a Personal, than the Fish a Predial Tithe, to the Parson or Vicar of that Parish where they inhabit. To this purpose there is a Case extant, wherein a Prohibition was granted against the same Parson of W. in the County of L. for suing in the Ecclesiastical Court for the Tithe of Trouts taken in a River, because being Ferae naturae, they are not Tithable; and a President was shown 5 Car. where a Prohibition was granted against the same Parson for suing for Tithe-Eels taken in the River▪ because they were Ferae naturae: And it was said, that in Yarmouth was a Suit for Tithe-Herrings taken in the Sea; but they could not prevail in it. Jones Justice said, That in Wales they used to pay Tithes for Herrings; and in Ireland it is a common course to pay Tithe for Salmons taken in Rivers: whereunto it was replied, That that might peradventure be by Custom, for otherwise Tithes are not due for Fish taken in Rivers . For no Tithes de jure are to be paid for Fish taken in a Common River. Pasch. 5 Car. B. R. a Prohibition granted to stay a Suit for Tithes of Eels taken in a Common River in the Parish of Barton in Westmorland; and Hill. 9 Car. Prohibition granted to stay a Suit for Tithes of Trouts in the same River. But the Court seemed to be divided, whether Tithes of them were due or not: But they granted a Prohibition, for that the Law shall decide thereupon; it was between Daws and Huddlestone. No Tithes shall be paid in kind without a Custom for Fish taken in the high Sea out of any Parish. Hill. 14 Car. B. R. between Long and Dircell per Curiam, and Prohibition granted accordingly. And Justice Jones said, that on an Appeal to the Delegates out of Ireland in the Lord Desmond 's Case it was Agreed, That for such Fish so taken, only Personal Tithes are due deductis expensis. Likewise, no Tithes in kind shall be paid de jure for Fish taken in a Common River, which is not enclosed, as in a Pond enclosed; for that they are Ferae naturae, although they are taken by one who hath a severed Piscary there, and although the place where they are taken be within the Parish of that Parson who claims them; for it is a Personal Tithe, in which Tithes ought to be paid deductis Expensis. Pasch. 15 Car▪ B. R. between Gold and Arthur, and others, Prohibition was granted where the Suit was for Tithes of Salmon in the River of Exe. Mich. 15 Car. between Whislake and the said Arthur, and others: the like Prohibition granted on the same matter between other parties. And in the Case of a Prohibition it was Resolved, That Tithe shall be paid for Fish taken in the Sea, which is not within any Parish; and they shall be paid to the Parson of the Parish where the Fish is landed.

Flax pays a Predial Tithe, payable when dressed up. Coke▪ Mag. Char. 649. The Tithes of Flax are Minutae Decimae. Mich. 14 Car. B. R. in Noah Webb 's Case.

Forest -Lands, that lie in no Parish, or between two Parishes, and anciently such, are not Tithable by the King or his Patentees; but if the Forest be in a Parish, and Land therein which is Tithe-Free, if the Forest happen to be disforested, it shall pay Tithes in kind. Crompt. Jurisd 52. Bacon Chief Justice, at Sarum -Assize; the Case was, A. Lessee for years of the Earl of H. prayed a Prohibition against the Vicar of L. to stay a Suit in the Ecclesiastical Court for Tithes, because the Lands out of which the Tithes were demanded, were parcel of the Forest of B. whereof the King was seised in right of his Crown, and he and all his Predecessors held the said Land discharged of Tithes; and shown that the King had granted the said Forest to the Earl of Hertford in Fee, and so he ought to have them discharged of Tithes: In that Case it was held by the Court, That it was only a Privilege annexed to the Crown, during the time that the Land was in the Crown; but the Court doubted, whether the Patentee might have such Privilege: But yet de been esse the Prohibition was granted . If Tithes do lie in any Forest, as in the Forest of Windsor, Rockingham, Sherwood, or other Forest which is not any Parish, the King shall have them by his Prerogative, and not the Bishop of the Diocese, or Metropolitan of the Province, as some have thought . But yet it seems by 22 Ass. 25. if there because of Suit for such Tithes against the parties who ought to pay the same, such Suit might be brought in the Ecclesiastical Court: But if a Stranger takes away such Tithes from the Parson or Vicar, there for such Trespass the Suit may be in the Temporal Court, as the same may be for taking away other goods in the like case. Adjudg. 15 Car. B. R.

Fowl taken by a Faulkner, who hawks for his pleasure, shall not pay Tithe; but if a Fowler kill Fowl, and make a profit of them, it hath been held, that he shall pay a Personal Tithe for them. Pasch. 15 Car. Adjudg. acc.

Fruits of Trees, as Apples, Pears, &c. are Tithable presently upon their gathering, and are Predial Tithes; for the subtraction whereof the Parishioner is impleadable. Stat. 2 Ed. 6. c. 13. Fruits of Trees, Apples, Pears, &c. Mast of Oak, Beech, &c. are Predial Tithes. Coke Magn, Chart. 649. The Fruits of Orchards and Gardens are Tithable in their proper kinds, and to be paid when they are gathered, unless there be some Modus or Rate-Tithe paid in lieu thereof.

Furse is Tithable, and pays a Predial Tithe, unless the Owner thereof can prescribe or prove a Custom of Tithing Milk or Calves of the Cattle on the ground where the Furse grows. Mich. 29. Eliz. B. R. Vid. Heath.

G

GArdens are Tithable as other Lands, and therefore the Herbs which grow therein pay Tithes in kind. Also Plants, Seeds, Woad, Saffron, Hemp, Rape, &c. pay Tithes in kind, unless the Parson make an Agreement for the same; otherwise the Tenth part must be set forth for the Parson, when the Owner receives his Nine parts. Mich. 8. Jac. C. B. in Baxter 's Case. & Trin. 9 Jac. B. R. The whole Court.

Glebe is a portion of Land, Meadow, or Pasture, belonging to or parcel of the Parsonage or Vicarage, over and above the Tithes. If it be Demised by the Parson to a Lay-man, it pays Tithe; otherwise, if he keep it in his own hands . For Glebe kept in the Vicars own hands, pays no Tithe to the Parson Impropriate, it is otherwise if it be in the hands of his Lessee , by whom it is Tithable, if lett by a Parson Impropriate. And although Glebe -Lands are not properly Tithable, because Ecclesia Ecclesiae Decimas non debet solvere; yet if Glebe -Lands be leased out the Parson, the Lessee shall pay the Small Tithes arising out of such Glebe -Lands to the Vicar that hath Small Tithes upon his endowment, as in Blinco 's Case . And yet in that case the Vicar Libelled in the Ecclesiastical Court to have Tithes of the Glebe of the Parson, and a Prohibition was granted, for that the Glebe shall pay no Tithe . Notwithstanding which, if a Parson lease his Glebe -Lands, and do not withal Grant the Tithes thereof, the Tenant shall pay the Tithes to the Parson . Likewise, if a Parson sow his Glebe -Land, and then Lease the same, the Tenant shall pay the Tithes of this Corn to his Landlord the Parson . Yet if a Parson sow his Glebe, and die before Severance, some have held, that his Executors shall not pay Tithes of this Corn. And albeit where Glebe -Lands are leased out by the Parson, the Lessee shall, as aforesaid, pay the Small Tithes thereof to the Vicar, that hath the Small Tithes upon his Endowment; yet he shall not have the Small Tithes arising upon such of the Parsons Glebe -Lands as the Parson keeps in his own hands . Likewise on the other hand it hath been held, That the Vicar upon a general Endowment, shall not pay Tithes of his Glebe to the Parson, or of the Fruits that arise from the same, and that for the same reason aforesaid, Quia Decimas Ecclesia Ecclessae reddere non debet . But the Lessee of the Parsons Glebe shall pay him, the Tithes thereof; to this purpose the Case was, A Parson leased all his Glebe -Lands, with all Profits and Commodities rendering 13 s. 4. d. pro omnibus exactionibus & demandis, and afterwards Libelled in the Ecclesiastical Court against his Lessee for the Tithes thereof: It was the Opinion of the Court, That Tithes are not things issuing out of Lands, nor any Rent or duty, but Spiritual; and if the Parson doth Release to his Parishioner all demands in his Lands, his Tithes are not thereby extinct, and therefore a Consultation was granted . And so it was Adjudged 32 Eliz. in Babington 's Case, That such Lessee should pay Tithes to the Parson, for that they are due jure divino, and cannot be included in Rent . As long as the Vicar occupies his Glebe -Lands in his own hands, he shall pay no Tithes; but if he Demise it unto another, the Lessee shall pay Tithes to the Parson that is Impropriate. If the Vicar sow the Land, and die, and his Executor take away the Corn. and doth not set forth his Tithe, and the Parson bring his Action of Debt upon the Statute of 2 Ed. 6. In this case the Court seemed to incline, that it would lie. The Glebe -Lands and Spiritual Revenues of Clergy-men, being held in pura & perpetus Eleemosyna, h. e. in Frankalmoign, are exempted from Arraying and Mustering of Men or Horses for the War, as appears in a Stat. of 8. H. 4. nu. 12. in the unprinted Rolls of that Parliament. An Abbot was Parson Imparsonee of the Church where the Abbey and Tithes were, the Abbey was Dissolved; the King granted the Monastery to one, and the Parsonage and Rectory to another: It was the opinion of the Justices, That if the Land of the Abbey was the Glebe of the Parsonage before the Impropriation, that then the Land was discharged of Tithes; for it remains Glebe notwithstanding the Appropriation, and the Glebe cannot be gained by Prescription, nor was ever chargeable to pay Tithes: And if the Parson doth make a Lease of his Glebe, the Lessee (as was there said, contrary to what was before said) shall not pay Tithes; but the Demesns of the Abbey, not parcel of the Glebe, should be chargeable to pay Tithes, if they were not discharged in right of a Composition or perpetual Unity.

Grass pays a Predial Tithe; but if a man cut Grass, and before it be made into Hay, being only put into Swathes, he carry it thence and give it to his Plowing Cattle for their necessary sustenance, not having otherwise Food sufficient for them; in this case no Tithes shall be paid for the same, and Prohibition was granted. Mich. 9. Car. B. R. Crawley & Wells. per Curiam. The Case was, where J. Libelled in the Ecclesiastical Court for the Tithes of the Profits, which came of the Grass and herbage of Pasture-Land, and upon a Prohibition granted; P. suggests, That he did feed on that Grass and Pasture with his own Plough-Cattle, and with the Plough-Cattle of other man in the same Village. Noy, Consultation shall be granted; for though a mrn shall not pay Tithes for the Cattle of his Cart, yet he shall pay Tithes for the Land whereon they do feed. Doddridge Justice, Where I do agist Cattle, and take the Cattle of other men to eat up my Grass and Pasture, there I shall pay Tithes for the Grass; otherwise it is, where the Grass is only such as I do depasture with my own working Cattle. Crook cited Sherington and Fleetwood 's Case, where a man Agists other men's Cattle on his Meadowgrou • d, whereof he paid Tithe-Hay afore time; and it was Resolved in this Case, That he shall not pay Tithes for that Meadowground now fed with other men's Cattle after Harvest, and no more than if he had depastured the Land with his own Cattle.

Gravel is not Tithable. Mich. 19. Eliz. B. R. & Pasch. 34. Eliz. C. B. Liff and Watt' s Case.

Grain is computed among the Predial Tithes, which is to be set out according to the Statutes and the usage of the place, Brownl. 1. 14. which holds true of all sorts of Grain in all grounds within the Parish: The Law is the same touching Hay in Meadows.

Grounds lett to Strangers out of the Parish, the Tenth-penny of the Rent is commonly payable to the Parson, if no Custom against it. Or Ground within the Parish lett to a Stranger without the Parish, is Tithable by the Ower of the Cattle, unless the Custom there be osherwise. Or if the Ground be fed with Cattle that bring no profit to the Parson, the Owner thereof must pay Tithes for them. Or Ground fed with the Cattle of a Stranger within the Parish, which brings no profit to the Parson or Vicar, he is to pay Tithes for it; the Case therefore seems the same, if both the Ground and the Cattle be his own that is the Stranger, in case he work them in another Parish. But the Studs of Ground or the Meers thereof at the Ends of Land, and adjoining to the Arable-ground, are not Tithable where the Land itself pays Tithe, unless where being mowed for Hay, it hath used to pay Tithes.

H

HAy pays a Predial Tithe, and is to be Tithes in Swathes, Windrows, or Cocks, as the Custom of the place is. Or if the Custom be to measure out the Tenth part, as the Grass grows on the Land for Hay, the Custom is good; and the Tithe of Hay may be set forth in Grass-Cocks, where the Custom doth not oblige to make it into Hay -Cocks . And if Hay be put into Ricks on the ground, and after sold, the Buyer cannot be sued for the Tithe; the Seller may, in case the Tithe thereof were not paid before. Hill. 16. Jac. by three Justices in Ashfield 's Case. And where two Crops of Hay are had from the same ground in the same year, Tithe shall be paid as well of the latter as of the former . Also Tithe shall be paid of the Hay made of Grass growing in Orchards. Co. 2. Instit. 652. But no Tithe Hay shall be paid for the Grass growing upon Headlands, which are only large enough for the turning of the Plough ; but not for Grass cut in Meadows to feed the Beasts of the Plough, and not made into Hay. Trin. 1. Car. B. R. Wells verse. Crawly. Yet on some Headlands Tithe may be payable of Hay, for suppose that in an Arable Field there be much Grass on the Headlands thereof, and there be a Prescription to pay the Tenth Shock of Corn there for all the Hay on the Headlands and Rakings of the Corn, and for Tying of Horses on the Headlands, such Prescription was held good to discharge the Tithe of the Hay upon such Headlands . And although a Second Crop of Hay from the same ground the same year is Tithable, as aforesaid, yet regularly the Hay of the Aftermath pays no Tithe, except there be a Special Custom for it; the Rule being, That Tithes shall be paid Ex annuatis renovantibus simul & semel . And where the Custom is not otherwise, the Parishioner ought to make the Grass into Hay for the Parsons Tithe . Yet when the Tithes of Grass are severed from the Nine parts, the Parson de jure may make it into Hay upon the Land where it grew, and that de jure, as well as the Parishioner himself; and so Adjudged in the Parson of Columbton 's Case in Devon, and the Prohibition denied accordingly; where the Parson had alleged a Custom of doing so, but the Court held that to be needless. Hill. 14. Jac. B. R. Newbery and Reynold 's Case, per Curiam. And in this case it was held, That the Parson may go over the Parishioners ground in the Path-way to make the said Grass into Hay, for that is incident to the Tithes. A man is not bound to make into Hay the Tithes of the Grass which he cuts; but he may set forth the Tithes thereof when it is in Grass-Cocks, for he may then sever the Tithes of Grass from the Nine parts. Pasch. 17 Jac. B. Hide & Ellis, Hob. Case 328. Contr. Hill. 14 Jac. B. R. Barham & Goose. P. 15. Jac. B. R. per Cur. and Prohibition denied; Tr. 15 Jac. B. R. Poppinger & Johnson per Cur. and Prohibition denied. Pasch 13 Jac. B. R. per Cur. and Prohibition denied. P. 2. Jac. B. R. Hob. 328. Hall & Simonds, Adjudged. Likewise, a man is not bound to sever the Tithe of Grass before it be put into Grass-Cocks, and hath set forth the Tenth part; for he may put it into Grass-Cocks out of the Swath, and then set forth the Tenth part. Ibid. Suit was for Tithe-Hay in the Ecclesiastical Court by the Parson; it was Surmized, That they had time out of mind paid to the Vicar 4 d. for the Tithe-Hay. The Court awarded a Consultation, for that the Modus Decimandi doth not come in question; but this he may plead in the Ecclesiastical Court . And in Gomersall and Bishops Case for Tithe-Hay, the Court held, That if there be variance between the Surmize and the Declaration, all is ill. In another Case in a Prohibition, it was Surmized, That time out of mind the Owners of the Land had found Straw for the Body of the Church in discharge of all Tithes of Hay: It was the Opinion of the Court, That it was no good Surmize, for that the Parson had no benefit of it; and a Consultation was awarded .

Heath, Furse, and Broom, Tithe shall be paid thereof, unless the party set forth a Prescription or Special Custom, That time out of mind there hath been paid Milk, Calves &c. for the Cattle that have been kept upon the same Lands; in which case they shall not pay Tithes .

Hemp pays a Predial Tithe. Co. Magn. Char. 649.

Herbage of ground, whereon Corn was sowed the same year, and whereof Tithe hath been paid the same year, is not Tithable . If Herbage he sold, it is at the Parsons Election, whether he will Sue the Owner of the Cattle that feed thereon, or of the Ground, for the Tithe thereof, if Custom be not against it. And as for Herbage growing at Lands-ends, adjoining to the Arable, pays no Tithe, where Tithe was paid for Arable . Where an innkeeper hath paid Tithe-Hay of certain Lands, and the rest of the year after puts into the same the Horses of his Guests, no Tithes shall be paid for the Herbage of such Horses; for it is but the Afterpasture of the same Land, whereof he had paid Tithes before. Trin. 16 Jac. B. R. Richardson & Cable, per Curiam, Prohibition granted.

Honey is Tithed by the Tenth measure thereof. A Prohibition was prayed for Suing for divers kinds of Tithes, & inter alia for Honey, upon a Surmize that it was not payable, that Bees are Volatilia: It was thereupon demurred; but the Opinion of the Court was, That Tithes are to be paid for Honey, for so is the Book Fitz. N. B. and therewith agreeth Lindwood; wherefore the Court awarded that there should be a Consultation .

Hops pays a Predial Tithe, and regularly are accounted inter minutas Decimas; yet in some Cases they may be Great Tithes, in places where they are much set or planted . Mich. 8. Jac. B. A man may set forth the Tenth part of his Hops for Tithes before they be dried. Hill. 14 Jac. B. R. in Barham and Goos 's Case, put by Serjeant Hitcham, and agreed by Mountacute.

Hop-poles or Wood cut and employed for them, are not Tithable where Tithe- Hops are paid. And so it hath been Resolved, That if Wood be cut and employed for Hop-poles, where the Parson or Vicar hath Tithe-Hops, they shall not have Tithes of the Hoppoles. So if a man hath a great Family, and much Wood be felled and spent in House-keeping, Tithes shall not be paid of such Wood. Mich. 15 Jac. C. B. by Hobart Chief Justice, White & Bickerstaff 's Case.

Houses of habitation, or Dwelling-houses are not properly Tithable, no Tithe payable for the same, nor out of the Rent reserved for them being Lett; yet by a Custom Tithes may be paid for Rent reserved upon Domise of Houses of habitation, although it be otherwise do jure, for it might commence on good Consideration. Co. 11. Dr. Grant 16. vid. Mich. 12 Jac. B. Hobart 16. Leyfield 's Case. Prohibition granted. Otherwise of New Houses, whereof there can be no Custom. Ibid. But regularly Houses are not at all Tithable, nor were Tithes anciently paid for Houses in London, the Profits of the Churches whereof, consist only in Oblations, Obventions, and Offerings, Co. ibid. But by a Decree made An. 1535. and confirmed by Act of Parliament, Stat. 37 H. 8. cap. 12. there is 2 s. 9 d. made payable to the Parson for every Pound of House-Rent for the Tithes of the Houses in London. Hob. 11. But if a Modus Decimandi be alleged to pay 12 d. in every Pound of Rent for every House in such a Parish in London, it is a good Modus Decimandi. The aforesaid 2 s. 9 d. is to be raised and made up according to the usage and Custom of the City. Stat. 27 H. 8. 20. & 32 H. 8. 7. And no Tithes are payable for Houses in any City save London, where a Prescription to be discharged of Tithes of a House, by paying 12 d. of every Pound Rent in lieu thereof, is (as aforesaid) a good Prescription. Co. 11. 16. But Tithes regularly are not payable for Houses of Habitation, nor of any Rent reserved upon any Demiss of them; for Tithes are to be paid of things which grow and renew every year by the Act of God. And for the Houses in London Tithes anciently were not paid, as aforesaid; yet the Parson of St. Clements without Temple-Bar Libelled against a Parishioner for Tithes of certain Stables 〈…〉 set forth in his Libel, That of 〈…〉 •• scription time out of mind, the 〈…〉 had used to have a Modus Decimandi, after the Rate 〈…〉 Tenth-part of the yearly Rent or value of the same 〈◊〉 was the Opinion of the Court, That in this Case a Prohibition should be granted; for de Communi jure no Tithes are to be paid of the yearly Rent or value of Houses, for Tithes are paid of the revenue and increase of things; and therefore no Tithes are paid for Houses in any Cities or Towns in England, saving in London; and this Parish is out of London and the Liberties thereof: Now where there is no Tithe at all, there can never be a Modus Decimandi, and yet it seems this kind of Payment hath been long used in London, which certainty was by use. But for Houses, Oblations were paid in all places; which are now by the Stat. brought to a certainty, viz. 4 d. for a House. Trin. 12. Jac. C. B. Dr. Leyfield and Tyndale 's Case. Hob. 10. 11. In Green and Piper 's Case it was agreed by the Justices, That a House in London, which was parcel of the Possession of a Priory, which was discharged of the payment of Tithes, should by the Stat. of 37 H. 8. be charged with the same. One who was a Curate and Sequestrator only of the Rectory of D. in London, the Incumbent being suspended, Sued Four of the Parishioners in the Ecclesiastical Court for Tithes of their Houses, and not before the Mayor of London, according to the Statute of 37 H. 8. The Court doubted of it, especially because the party was neither Parson nor Vicar, and because the Statute is a New Law, and appoints how the Tithes in London shall be paid and Ruled, and before what Judges, and what Remedy shall be for the party grieved; and day given to hear Counsel on both sides . In the Case aforesaid between Green and Piper , when Suit was in the Ecclesiastical Court for the Tithes of a House in London, a Prohibition was prayed upon a Surmize, That the House was a Priory, which was discharged of Tithes by the Pope's Bull, and the Statute of 31 H. 8. which gave their Possessions to the Crown, did Ordain, That the King and his Patentee of such Lands should be discharged of Tithes; yet a Consultation was awarded, because by a latter Statute, viz. 37 H. 8. cap. 4. all Houses in London shall pay Tithes according to their Ordinances, and the Statute extends to all Houses, and none excepted but the Houses of Noble-men.

L

LAmbs are computed among the Mixt Tithes. To pay Pence apiece for Lambs, when the number is less than Seven, is a good Prescription. Curia 7 Jac. B. R. Patche 's Case. Or rather thus, viz. if the Parishioner hath Six Lambs, or under, he shall yield for Tithe a halfpeny for every Lamb: if he hath Seven Lambs, then he shall yield a Lamb for his Tithe, and receive Three-halfpence from the Parson: if Eight Lambs, then a penny: if Nine Lambs, then a halfpeny from the Parson, who may otherwise expect the Fall of the Tenth Lamb the year next following. Lindw. cap. Quoniam propter. Also the Tithe of Lambs is to be apportioned with respect to the places where they were engendered, brought forth, and nourished. Lindw. cap. Quoniam audivimus. And regularly the time of payment is, when they are weaned from the Dam, unless the Custom of the place be otherwise. To stay a Suit in the Ecclesiastical Court for the Tithe of Lambs a Prohibition was prayed, upon a Surmize the Custom to be, That if one hath Lambs under the number of Seven, he ought to pay a halfpeny for every Lamb in lieu of all Tithes of Lambs; if he hath but Seven, then the Parson to have the Seventh, and he to pay Three-pence; if Eight, then Two-pence; and if he had Ten, the Parson should have the Tenth without paying anything: Resolved, That this being a Custom, which they refused to allow in the Ecclesiastical Court, a Prohibition should be awarded .

Lands accruing to the Crown by the Statute of 27 H. 8. touching Dissolutions, are now Tithable, though whilst they were the Lands of Religious Houses they were not Tithable; but their Privileges being Personal, they were extinguished by the said Statute of Dissolutions, nor hath the Statute of 31 H. 8. retrospect to the said Privileges. 15 Jac. C. B. Garret and Wrigh 's Case. & 7 Car. B. R. Clark and Ward 's Case. Vid. Sr. Marmad. Strickland 's Case 1639. Adjudged at York Assize accordingly. Vid Clayton 's Rep. 117. & 12 Car. Adjudged in another Case. Also Lands gained from the Sea, and made Arable, must pay Tithes. Bulstr. 8. 165. So must Lands in themselves Tithable, but not Manured or Ploughed, specially if so in prejudice to the Parson; in which case he may Sue the Occupier of such Lands in the Ecclesiastical Court for the Tithes of that Land. Vid. 15 Car. C. B. per Berkley Justice, Adjudged.

Lops of Trees above twenty years growth shall pay no Tithes ; For it hath been held, that if a man Lop a Tree under twenty years, growth, after suffer the Tree to grow past twenty years, and then Lop it again, no Tithe shall be paid for the second Lopping, although the first Lopping were not Tithe-Free . It was Resolved in Reynold 's Case, That Tithes shall not be paid of the Lopping of Trees above twenty years growth. More 's Rep.

Lime is not Tithable; Adjudg. 19 Eliz. B. R. & Pasch. 34. Eliz. C. B. Liff and Waltt 's Case: Nor Marle, Bricks, Slates, or Tiles, unless the Custom of the place make them Tithable; otherwise not, because they do not annually increase, and because Lime is part of the Freehold. Mich. 13 Jac. B. Thomas and Perrye, per Curiam.

M

MAst of Oak or Beech, if sold, the Tenth-penny is payable for the Tithe thereof; but if eaten by Swine, then the Tenth of the value or worth thereof.

Meadows by ill husbandry over-run with Thorns, Bushes, and the like, are not computed as Barren Lands, but do still remain Tithable. Hill. 38 Eliz. B. R. Sherington and Fleetwood 's Case. Vid. 15. Car. B. R. Sugden and Cottle 's Case.

Mills, the Tithe thereof, as also of Parks, Ponds, Warrens, Dovecoats, and Bees, seem primo intuitu, as if they were all Predial Tithes. For the Tithe of Mills, not the Tenth penny-Rent, but the Tenth Measure of Corn grinded at the Mill, is responsible for the Tithe; understand it of Corn- Mills, whether new or old, driven by Wind or Water; for the Tithe whereof generally the Tenth Toll-dish is due, if there be not some other Custom in the place. And whereas by the Law and the ancient Constitutions of the Church Tithes were not paid of Ancient Mills, yet by the Statute of Articuli Cleri, cap. 5. Tithes are to be paid for all Mills newly erected: so that de Molendino de novo Erecto Tithes shall be paid. Trin. 14. Jac. B. R. So that all new Corn- Mills, be they Wind or Water- Mills, also Fulling- Mills, Paper- Mills, Powder- Mills, Stamping- Mills, (and probably for the same reason Saw- Mills ) Iron- Mills, and all others that are of Common and Public use, do pay Tithes; but old Corn- Mills, for which no Tithe was ever paid, no Tithe is to be paid, except a Personal Tithe, as is for a Trade of profit: And such Tithe shall be paid of Fulling- Mills, Rapt- Mills, Paper- Mills, Iron- Mills, Powder- Mills, Lead- Mills, Copper- Mills, and Tin- Mills; for such Mills pay no Tithe as Mills, because they are but Engines of their occupation, Pasch. 17. Jac. Johnson 's Case. & Cro. 2. 532 & Bulstr. 3. 212. & Fitzh. N. B. 41. G. & Co. 2. 44. only the Millards are to pay a Personal Tithe, as aforesaid, as for a Handicraft, or Faculty. Therefore a Fulling-Mill as such pays no Tithe. Hill. 16 Jac. B. R. between Dawbridge and Johnson, Parson of Buckfield. For there being a Fulling-Mill, which Fulled 40 Clothes a week, and gained two shillings for every Cloth: It was held, that there was no Tithe to be paid thereof. Cro. 2. Abridg. Case 2638. But a Corn- Mill newly erected, though upon Land discharged of Tithes by the Statute of Monasteries, must pay Tithes; and so of every new erected Mill on a man's own ground. Ibid. Cas. 1522. Notwithstanding the Premises it seems somewhat questionable, whether any Tithes are due for Mills de jure, or not; for the Lord Coke. Instit. 2. par. 622. says, It was never Judicially determined that ever he knew of. If Mills do not yield a Predial Tithe, yet doubtless the Millards are to yield a Personal Tithe, as well as other Handicrafts-men, but Custom in this, as in other cases prevails. It hath been Adjudged Trin. 18. Jac. B. R. That where a Parson Libelled in the Ecclesiastical Court for Tithes of a Mill, which was erected upon Lands which were discharged from payment of Tithes by reason of Privilege within the Statute of 31 H. 8. That a Prohibition would not lie in that case: for that De Molendino de novo Erecto Tithes ought to be paid. Mich. 15 Eliz. in Hapers Rep. acc. But in the other Case of the Fulling-Mill aforesaid, where the Parson Libelled in the Ecclesiastical Court for the Tithes thereof, and suggesting, that the Miller Fulled every week 40 Clothes, as aforesaid, and gained two shillings of every Cloth, demanded Tithes for them: A Prohibition was granted in that case; for it was said by the Justices, That by the Law of the Land he ought not to pay Tithes of such Mills; for of such things as come only by the Labor of men Tithes are not payable, but of things which are renewable every year. dict. Cas. Dawbridge & Johnson. Cro. par. 2. 523. And in another Case, where a man Libelled to have Tithes of Mills upon a Suggestion of a Modus Decimandi for the same, a Prohibition was granted: In that Case it was said by Coke Chief Justice, That in some cases Tithe is payable for Mills, and in some cases not. No Personal Tithes by the Statute is to be paid of Mills, but where by special Usage the same hath been paid; and whereas a Modus Decimandi was alleged to pay Tithes for Mills, it was Resolved, That the Modus did not extend to Mills newly erected, upon the Statute of Articuli Cleri; for De Molendino de novo erecto solvuntur Decimae. Trin. 14 Jac. B. R. Jake 's Case. Bul •• r. pa. 3. 212. If two Fulling-Mills be under one Roof, and a Rate-Tithe paid for 〈◊〉 Mills, and after you alter these Mills, and make one of them a Corn-Mill, the Rate-Tithe is gone, and you must pay Tithes in kind. Brownl. pa. 1. Cases in Law. If there be two ancient Corn-Mills time out of mind, &c. for which 6 s. 8 d. have been paid for the Tithes time out of mind, &c. and after in continuance of time the Mill-Stream doth change his course, and goes another way at a little distance from the ancient Stream, and thereupon the Owner of the Mills pulls down one of the ancient Mills, and new builds it in that other place where the Stream now runs: In this case it shall be discharged of any Tithes by force of the ancient Modus, for that happened by the act of God, and not by the act of the party; and Prohibition was granted accordingly, Mich. 11 Car. B. R. Johnson and Dawbridge 's Case, Resolved Per Curiam. But withal the Court held, that if the Stream had been altered by the Owner, Tithes ought to have been paid as of a new Mill. In another Case it being Libelled in the Ecclesiastical Court for Tithes of a Grist-Mill and of a Fulling-Mill, Crook agreed, That for a Grist-Mill Tithes shall be paid; but he said, That the Statute De Articulis Cleri, which speaks de Molendinis non fiat Prohibitio, ought not to be meant or intended of a Fulling-Mill, for the profit that accrues by that, is by the Labor of men, and therefore not intended within the general words of the Statute De Molendinis, for which reason he prayed a Prohibition. Calthroppe said, that it was the opinion of Justice Warburton and Nicholls, 12 Jac. That Tithes shall be paid of Fulling-Mills, viz. the Tenth-penny of the gain or profit; but of Grist-Mills the Tenth-dish of Corn shall be paid, for that is in the nature of a Predial Tithe: And so it was held 5 Jac. in the Case between Vbi and Lux, Vid. Lindw. Provin. Constit. But yet Doddridge held, That if there be not a Special Custom alleged for the payment of Tithes of a Fulling-Mill, Tithes shall not be paid thereof; for he had spoken (as he said) with the Civilians, who held that Tithes should be paid of such a Mill; but they could not agree what manner of Tithe it is, for some said it is a Predial Tithe, Others, that it is a Personal Tithe; but he said it could not be a Predial Tithe, for it wholly accrues by the Labor of man; and if so be that he should have that Tithe as a Predial Tithe, then another Tithe would be demanded of him who Sheers the Cloth, and also of the Dyer thereof, and so Tithes should be paid many times for the same Cloth: But the Usage or Custom of the Country is to be considered. And for Tin-Mills, or Lead-Mills, or Plate-Mills, Ragg-Mills, or Edge-Paper-Mills, no Tithes shall be paid; and to this agreed Doddridge, Houghton, and Croke: And therefore as to the Grist- Mill, a Consultation was granted, and as to the Fulling- Mill, there was a Prohibition. Pasch. 17 Jac. B. R. Roll. Rep. par. 2. A Parson Libelled in the Ecclesiastical Court for Tithes of a Mill, which was erected upon Lands discharged of Tithes by the Statute of Monasteries, 31 H. 8. A Prohibition was prayed, but denied by the Court; for de molendino de novo Erecto non jacet Prohibitio. Trin. 15 Jac. B. R. Cro. par. 2. Also in another Case where it was moved for a Prohibition, upon a Suggestion of a Modus, to pay so much by a Custom for all Mills erected, or to be erected, and this appearing to be a New-erected Mill: Whether the Custom shall run to this or not upon the Statute of Articuli Cleri, c. 5. was the Question. Coke Chief Justice, This Modus cannot go to this new Mill; for an ancient Mill your Modus shall be allowed, but not for the Mill newly erected, the Custom will not extend to it; and therefore by the Rule of the Court, for this new Mill a Consultation was granted.

Mill-stones, if one pair thereof be turned into two pair, both of them shall pay Tithe, and their Privilege (if they had any) will be lost. Pasch. 17 Jac. Johnson 's Case, & Fitzh. N. B. I. G. Co. 244. Brownl. 1. 31. So that if there be but one pair of Mill-stones in a Mill, and a Rate-Tithe be paid for them, if afterwards there be another pair of Mill-stones put on, now Tithes must be paid in kind. Brownl. ibid.

Milk paying Tithe, exempts the payment of Tithe-Cheese made of the same Milk. Et e contra.

Mines or Minerals of Iron, Brass, Tinn, Lead, Copper, Coles, and the like, are not Tithable. Register 51. F. N. B. 53. 9. Broo. Dismes 18.

Mixt Tithes are of the profits of such things as arise partly from the labor and care of men, and partly from the Earth whereof the things are; and sometimes are called Predial Mediats, and come not immediately of the Ground, but of things maintained out of the Ground, as Cattle, Calves, Lambs, Kids, Wool, Milk, Cheese, Chicken, Geese, Ducks, Swans, Eggs, &c. Mixt Tithes are properly such as come of Milk, Cheese, &c. Or ex foetibus animalium, quae sunt in pascuis, & gregatim pascuntur, ut in Agnis, Vitulis, Haedis, Caprcolis, Pullis, &c. Coke, Magn. Chart. 649.

Modus Decimandi is the payment of something in lieu of the just and full Tithe of a thing Tithable, legitimated by Composition, Custom, or Prescription; it is when Lands, Tenements, or Hereditaments have been given to the Parson and his Successors, or an Annual certain Sum, or other Profit always time out of mind to the Parson and his Successors, in full satisfaction of all Tithes in kind in such a place; and all Presidents in Prohibitions in discharge of Tithes in case De modo Decimandi run thus, viz. That such a Sum had been always paid in plenam Contentationem, Satisfactionem & Exonerationem omnium & singularum Decimarum. And although the Sum be not paid, yet cannot the Parson sue for Tithes in kind; not for the Tithes in kind in the Ecclesiastical Court, but for the money in the Temporal. Trin 7 Jac. in the Case De modo Decimandi Prohibitions debated before the K. Coke, Select. Cas. 40, & 46. In Biggs Case it was Resolved, where a Prohibition is awarded upon a Suggestion of a Modus Decimandi, and a Consultation awarded for not proving the Suggestion within Six months, there a new Prohibition shall not be awarded upon an Appeal in the same Suit. More 1234. This Modus Decimandi refers only to the Reality, viz. the Tithes, and not to the Personalty, viz. the Offerings . Nor can it begin at this day, but is and must be by Prescription, and is intended to have a lawful commencement upon some Agreement at first made for valuable Consideration with the Parson or Vicar . And if the Modus Decimandi be to pay a Sum of money for the Tithe of a piece of Ground, which is after turned to Houses and Gardens, the Modus continue . Yea, it doth so actually discharge and extinguish Tithes, that they are thereby turned into a Lay-Fee, as well as the Nine parts . Touching this Modus Decimandi there are some things that seem doubtful and unresolved in the Law; as if the Modus be of Land given to the Parson in satisfaction of Tithes, and the Land after happen to the evict, Q. if the Tithes in kind do not in such case revive? . Or if Lands be once discharged of Tithes by a Modus Decimandi, Q. whether the Tithes shall revive again upon failure of the Modus? But if Land be granted to the Parson in satisfaction of Tithes, if the Parson alien the same without the consent of the Patron and Ordinary, his Successor shall have Juris Vtrum If a man Prescribe to pay a Modus Decimandi for the Tithe of certain Lands, if the Land be afterwards lett to Farm, and the Farmer pay the Tithe in kind, yet it shall not destroy the Prescription as to the Lessor . If a Lessee pay Tithes in kind, yet that shall not destroy a Modus in the Lessor . But if the Modus Decimandi be of a thing for which no Tithe is due de Communi jure, it is not good; nor can it stand to rise and fall according to the Rent by Prescription: as of Houses in London . That the Trial of Modus Decimandi (as the Common Lawyers affirm) belongs to the Temporal, not the Spiritual Courts, and for the grounds of Prohibitions in such case . If the Ecclesiastical Court allow not of any such thing as a Modus Decimandi, it is because the Canonists do hold Tithes to be due Jure Divino, and consequently not extinguishable in the whole, nor diminishable in part by any Custom or Prescription in opposition to the Law of God. The Temporal Courts will admit them also to be Jure Divino, but do allow if so only Secundum quid, viz. quoad sustentationem Cleri, but not quoad Decimam aut aliquam aliam certam partem; and therefore do admit of a Modus as to the quantum, where there is a sufficient maintenance for the Clergy besides; which is not only allowed, but also confirmed by Act of Parliament . So that if the Lord of a Manor grants parcel of his Manor to a Parson in Fee to be quit and discharged of Tithes, and makes an Indenture, and the Parson with the assent of the Ordinary (without the Patron) grants to him, that he shall be discharged of Tithes of his Manor for that parcel of Land; if afterwards the said Lord of a Manor or his Assigns be sued in the Ecclesiastical Court for Tithes of his Manor, he or his Assigns shall have a Prohibition upon that Deed; and therefore, if the Lord of the Manor hath always holden his Manor discharged of Tithes, and the Parson had time out of mind Lands in the same Parish of the Gift of the Lord, of which the Parson is seised at this day in Fee, in respect of which the Parson nor any of his Predecessors ever had received any Tithes of this Manor: If the Parson now sueth for Tithes of this Manor, the Owner of the Manor shall show that Special matter, that the Parson and his Successors time out of mind have holden those Lands of the Gift of one who was Lord: and the same is good Evidence to prove the Surmize in the Prohibition . And in another Case of a Modus Decimandi it was holden by the Court, That if a Modus Decimandi be for Hay in Black-Acre, and the party soweth the same with Corn seven years together, the same doth not destroy the Modus Decimandi; but the same shall continue when the same is made again into Hay: And when it is sowed with Corn, the Parson shall have Tithen in kind, and when the same is Hay, the Vicar shall have the Tithes-Hay, if he be endowed of Hay . And where a Suit was in the Spiritual Court by a Defendant Vicar of A. for Tithes: a Prohibition was prayed upon the Plaintiffs Plea there of a Modus Decimandi, to pay so much yearly to the Parson of A. in discharge of his Tithes. It was the Opinion of the Court, That this Modus between him and the Parson will not discharge him from payment of Tithes to the Vicar, and therefore the Court granted a Consultation . Also if a Prescription be laid to pay a Modus Decimandi to 100 Acres, or to several things, if there be a failure of one Acre, or of one thing, it is a failure of the whole Prescription .

Monasteries under 200 l. per Ann. commonly called the Lesser Monasteries, of the Order of Gistertians and Praemonstratenses, that were Dissolved and came to the Crown by the Statute of 27 H. 8. were not discharged of the payment of Tithes by the Statute of 31 H. 8. c. 8. by which Statute those of 200 l. per Ann. and upwards, commonly called the Greater Abbeys, were Dissolved; and whereby it is Enacted, That the King and his Patentees, having any Monasteries, &c. or any Manors, Lands, &c. belonging to them, should enjoy the same discharged of the payment of Tithes in as ample manner as the said Abbots, &c. who were discharged of Tithes either by Bulls, Compositions, Prescription, Order, or Unity of Possession. And albeit the Lands of the said Lesser Monasteries are not within the benefit of the said Statute of 31 H. 8. to be quit of Tithes; yet they ought to enjoy all such Privileges as are annexed to the Lands, for which reason they shall (in whose possession soever they are) be exempted from the payment of Tithes by real Compositions and Prescriptions de Modo Decimandi, though not by Prescriptions de non Decimando, Unity of Possession, Order, or Popish Bulls, in all which Cases the Parsons and Vicars have the advantage by the Dissoltion of all those Monasteries and Abbeys, which were Dissolved by the Statute of 27 H. 8. For these Lesser Monasteries under 200 l. per An. which were (as aforesaid) Dissolved by the Statute of 27 H. 8. lost their Privilege of being discharged of the payment of Tithes. Nor did the Privilege extend to any Lands, other than such as they had at the time of the Council of Lateran, and only for such time as the same remained in their own possessions, and only for such Lands as were in their own manurance . It is said in Dickenson 's Case against Greenhowe. That Monks are not of Evangelical Priesthood, viz. capable of Tithes in pernancy, but mere Lay-men, and cannot prescribe in non Decimando. And that Bede saith of them, That they are mere Laici, and the Monks of the Order of Praemonstratenses were such, and therefore they could not Prescribe to be Discharged of Tithes .

Mortuaries, in some place called Coarse-Presents, though they are not Tithes, yet they were given Pro Recompensatione subtractionis Decimarum Personalium, nec non & Oblationum. Lindw. c. Statutum & infra, &c. for which reason they are not here omitted out of this Catalogue of Tithes. Mortuaries (as Sir Edw. Coke conceives) were not anciently due otherwise than by Custom only , until they were settled by the Statute of 21 H. 8. cap. 6. whereby it is Enacted, That no man dying possessed of Goods under the value of 6 l. 13 s. 4 d. should pay any Mortuary, nor any to be paid, but in such places where they used so to be, and that but one Mortuary; nor that, but in one place, and that where the party deceased had his most constant abode, and usual dwelling and habitation, after the rate following, viz. 3 s. 4 d. where the Deceased had in Moveables (his Debts first paid) to the value of 6 l. 13 s. 4 d. and under 30 l. at his death. 6 s. 8 d. if he died possessed of Moveables to the value of 30 l. and under 40 l. 10 s. if to the value of 40 l. or upwards. And none to be paid by any married Woman, Child Non-Housekeeper, Wayfaring-man, or Non-Resident in the place where he died. Which Statute provides, That accustomed Mortuaries should be paid as formerly, whether more or less than is before limited . There were also it seems certain Mortuaries, which the Prelates anciently paid to the Kings of this Realm .

A Mortuary is not properly and originally said to be due to an Ecclesiastical Incumbent, Parson, or Vicar, from any but those only of his own Parish, to whom he ministereth Spiritual Instruction, and hath right to the Tithes. Lindwood in his Gloss on c. Statutum, ver. ut infra, de Consuetud. discovers the ground or reason of that payment to be this, viz. That when through ignorance, and sometimes through negligence, and unjust detention of Tithes and Oblations the Parishioner was found tardy and faulty, &c. Ideo statuit Archiepiscopus, quod Compensatione sic subtractorum, secundum melius Animal defuncti Ecclesiae damno debuit applicari. But all this notwithstanding, we know the prevalency of Custom to be such, that in some places of this Kingdom they are paid to the Incumbents of other Parishes, that perform no Ministerial duties at all to the deceased party, nor living nor dying. And the Statute of 21 H. 8. c. 6. doth nothing at all control the course, but makes the Usage of payment only to be the Law thereof.

In the Case of a Prohibition, because the Defendant sued in the Consistory Court of Chester, before the Commissary, for a Mortuary, after the death of every Priest withint the Archdeaconry of Chester, the best Horse or Mare, his Saddle, Bridle, Spurs, his best Gown, his best Signet or Ring, his best Hat, his best upper Garments under his Gown, as to the Bishop, de debito consuetudine fore supponitur, and recites the Statute of 21 H. 8. concerning Mortuaries. The Plaintiff averred, that there was no such Custom there, and that she had paid a Mortuary to the Parson of B. and that after a Prohibition the Defendant had prosecuted his Suit in the Ecclesiastical Court. The Questions were, (1) Whether there was a Custom in that place, to give such things for Mortuary? and this to be a just cause to have Prohibition; Mortuaries being only Triable in the Ecclesiastical Court. (2) Whether Consultation shall be granted without answering the Prohibition. The Court was divided in Opinions, wherefore ordered the Defendant should Plead or Demurr, and then the Court would give Judgment upon the Return before them.

N

NAg or Riding Nag; if a man keep a Nag or Horse within the Parish only for his Saddle to ride on, no Tithes shall be paid of that Nag or Horse, for that it is a Barren Beast, not renewing, but kept only for Labor; and so Adjudged in the Parson of Thimblethorpe 's Case, where the Case was, That a man Leased out certain Lands to another, reserving to himself the running of a Nag for his own Riding; and after the Lessor was sued in the Ecclesiastical Court for the Tithes of that Nag, and a Prohibition was granted by Montague, Crook, and Doddridge, for that it is a Barren Creature, and used only for Riding, (and although it was urged at the Bar, that the Lessee paid him Tithes for all the Herbage; but the Court took no advantage of that.) But Houghton seemed e contra; for it seemed to him, That no Barren Cattle should be discharged of Tithes, other than such as are used for Husbandry. But that was not used for Husbandry, Ergo, &c. And in the Case of a Prohibition between Hampton and Wilde: It was Resolved, That Tithes shall be paid for Pasturage of a Gelding for his Saddle, or if it be sold; but not for Horses used only for Labor.

In a Prohibition the Case was, M. the Defendant being Parson of D. did Libel in the Ecclesiastical Court for the Tithes of Sylva Caedua, and of the Herbage for depasturing of his Geldings: The Plaintiff there shown, that they were his Hackney Geldings, which he kept for his pleasure, and for himself and his Servants to ride upon, being his Saddle Horses: and this Plea being there refused, for this cause he prayed a Prohibition: The whole Court was clear of Opinion, That here was good cause for a Prohibition, for that these Horses are not Tithable, nor any Tithe-Herbage is to be paid for them; otherwise it were, if they had been Cart-Horses, which he had to Till his Ground, or for Cattle bought, and Fatted to sell again for gain; for these he ought to be answerable to the Parson for the Herbage of them, but not for the Herbage of his Geldings by him kept and used only for his Pleasure; but it was for working Horses, for the Cart or Plough, or for Fat Cattle, bought and and Fatted to sell again, of such Cattle allowance is to be made for their Herbage, because that a Profit doth come in by them; but otherwise it is of Saddle-Horses: the whole Court agreed in this, and therefore in this Case, by the Rule of the Court, a Prohibition was granted.

Nurseries of young Trees and Plants pay Tithes: If a man be seised of Land within a Parish, which used to pay Tithes, and a Nursery be made thereof for young Trees and Plants of divers kinds of Fruit, as Apples, Pears, Plums &c. Also of Ash, &c. and after sell divers of them to Strangers out of the Parish to be transplanted, he shall pay Tithes of that Nursery to the Parson; for although the young Trees are parcel of the Freehold, so long as they continue there, yet when they are transplanted, they are severed and taken from the Freehold; and if that should be permitted without payment of Tithes, the Parson might be defeated of the Tithes of all the Land in the Parish, by converting them into Nurseries. Hill. 14 Car. B. R. Gibbs & Wiburne Adjudg. per Cur. upon a Demurrer and a Consultation granted accordingly. Intrat. Mich. 14 Car. Rot. 75. Cro. par. 3.

O

OAks beyond 20 years growth, that are become dry and rotten, and thereby not fit for Timber, shall pay no Tithe, because they were once privileged. And if Oaks beyond 20 years growth have been used to be Topt and Lopt within every 20 years, yet no Tithes shall be paid of these Tops and Branches cut within 20 years growth, because their stock is discharged of Tithes. Trin. 38 Eliz. B. R. Ram & Patteson. Mich. 3 Jac. B. Brook & Rogers. & Co. 11. Sampson & Worthington, 48. B. Adjudg. It was also Resolved in Wray and Clenche 's Case, That small Oaks under twenty years growth, apt for Timber in time to come, shall not pay Tithes. Mores Rep. Likewise Oaks Top'd within the age of 20 years, and after the Lop left to grow beyond 20 years, no Tithes shall be paid, for it is now become Timber. Mich. 10 Jac. B. per Coke. And Oaks decayed, that are not Timber, but converted to Firewood, shall notwithstanding not pay Tithes. More. Case 716.

Oblations, Obventions, and Offerings, seem to be but one and the same thing, and are in a sense something of the nature of Tithes, being offered to God and his Church of things Real or Personal. Offerings are reckoned amongst Personal Tithes, and such as come by labor and industry, paid by Servants and others once a year to the Parson or Vicar, according to the Custom of the Place; or they are to be paid in the place where the party dwells at such four Offering-days, as before the Statute of 2 & 3 Ed. 6. c. 13. within the space of four years then last past had been used for the payment thereof, and in default thereof. Cro. 3. Abridg. Case 3159. In London Offerings are a Groat a House. They are by the Law now in force to be paid as formerly they have been. Vid. Stat. 32 H. 8. 7. 27 H. 8. 20. 2 & 3. Ed. 6. 13. & Co. 11. 16. They properly belong to the Parson or Vicar of that Church, where they are made. Of these some were free and voluntary, others by Custom certain and obligatory. They were anciently due to the Parson of the Parish, that officiated at the Mother-Church or Chapels that had Parochial Rights; but if they were paid to other Chapels that had not any Parochial Rights, the Chaplains thereof were accountable for the same to the Parson of the Mother-Church. Lindw. c. de Oblation. & cap. quia quidam. Such Offerings as at this day are due to the Parson or Vicar at Sacraments, Marriages, Burials, or Churching of Women are only such as were confirmed by the Statute of 2 Ed. 6. 13. and payable by the Laws and Customs of this Realm before the making of the said Statute, and are Recoverable only in the Ecclesiastical Court.

Orchard, the Soil whereof is sowed with any Grain, the Parson may claim the Tithe thereof, as well as of the Fruit of the Trees, because they are of several kinds, and of distinct natures. Coke Magn. Chart. 652.

P

PArk, if converted into Tillage, shall pay Tithe in kind, for a Park is but a Liberty; a discharge therefore of the Tithes of a Park is not a discharge of the Tithes of the very Soil, which may be converted into Tillage . Or if there be a Modus Decimandi of the Park, and the Park be disparked, and the Land converted into Tillage or Hop-ground, or the like; in this case though Tithes in kind are not payable, yet the Modus shall remain. The Case is the same, if the Park be disparked by having all the Pales fallen down, which in Law is a disparking of the Park. Sed Q. . For to pay a Buck or a Do, or the Shoulder of a Deer, when one is killed, may be a good Modus Decimandi for the Tithe of a Park. A Vicar having two shillings yearly, and the Shoulder of every third Deer killed in a Park, the Park being disparked, the Vicar sued for Tithes in kind. The Court was divided in Opinion: Nicholls and Hobart Justices, That notwithstanding the Disparking the Modus did remain: Winch and Warburton Justices, That by the Disparking the Prescription as to the Modus Decimand was determined, and that the Tithes should be paid in kind. Quaere . Where a Park is disparked, if the Park paid ten shillings, or any other Sum for all Tithes, and now disparked and sown with Corn, here only the ten shillings shall be paid; otherwise, if the Prescription be for the Deer and Herbage of the Park, and not for all the Park; for in such case Tithes in kind shall be paid, if it be disparked and sown with Corn. A Modus to pay so much money for the Tithe of a Park is good, though the Park be Disparked . If one Shoulder of every Deer killed be Prescribed to be paid for all Tithes, and it be after Disparked, here the Tithe in kind shall be paid; or if the Prescription be to pay Ten shillings and a Shoulder of every Deer, and it be Disparked, here it shall pay Tithe in kind, and not the Ten shillings only . Upon a Surmize of a Modus Decimandi to pay a Buck or a Do for all Tithes of a Park, a Prohibition, was prayed, and granted . If a Modus Decimandi be to pay Two things, as Two shillings for a Park, and a Shoulder of every Buck killed in the Park, and all the Deer die, or are killed up, yet the Prescription holds good for the Two shillings . And although Tithes are to be paid for a Park, yet Deer, as being Ferae naturae, are not Tithable, saving where the Custom is otherwise . In Thursbie 's Case, where Suit was for Tithe-Corn growing in a Park lately Disparked, the Defendant pleading a Custom to pay Venison in lieu of all Tithes, and Proof that a Buck was paid yearly, but whether out of this Park or not was a Non constat: The Jury found, That if it was paid out of any Park, and accepted and allowed, this was better to uphold the Custom, than if particularly tied to pay a Deer out of this Park; for now, if the Park be disparked, yet this payment of the Deer may be performed: Otherwise, it is, if the Custom had been a Deer out of this Park only, for then by the destroying of that, the Custom is gone also. It was holden in this Case by the Judges, That although the Deer had been often, and for the most part paid out of this Park, yet this doth not alter the Custom, if it may be paid out of any Park; and if the Custom were to pay a Shoulder of Venison generally, it may come out of any Park .

Partridges made Tame, do pay not a Predial, but a Personal Tithe.

Pasture yields a Predial Tithe, which is generally paid by the Owner thereof, and so is the Custom; yet Pasture -grounds sed with Cattle that yield profit to the Church, have their Tithe satisfied in the Fruit of the Beasts. And if they belong to a Stranger who is not of the Parish, if he fell the Pasturage, he is answerable for the Tenth penny; but if he frankly giveth it, and the Parishioner freely receiveth it, the Parishioner is answerable for the Estimation, if the said Grounds be fed with Beasts yielding increase; otherwise no Profit at all to the Church, if sed only with Horses, Oxen, and other Barren Beasts. And as touching the Pasture of the Horses of Guests, the Tithe is to be paid by the Innkeeper for the same . But if the said Horses be put into such Pasture, as is after a Crop of Hay of the same ground, no Tithe is payable by the Innkeeper for the same . Nor is the Pasture of such Horses Tithable as the Parishioner useth for his own Riding, nor the Pasture of such Horses as are used about Husbandry in the Parish; but where Horses are kept or bred in Pasture that they may be sold, in that case Tithe shall be paid for the Pasture thereof . But if Tithe be demanded for the Pasture of Riding Nags for the Saddle, for Labor and Pleasure both, but not for Profit properly, a Prohibition will lie . Nor is the Pasture of Oxen used for Husbandry Tithable, that is, being used for Husbandry in the same Parish; it may be otherwise, if they be used for other purposes, or for Husbandry out of the Parish. Mich. 8 Jac. C. B. in Baxter 's Case. And as touching Tithe of the Pasture of Guest-Horses by an Innkeeper, as hath been formerly mentioned; the Case was, A. Parson of B. Libelled in the Ecclesiastical Court against C. an Innkeeper, because that the said C. took all the benefit of his Pasture, by putting Guest-Horses into the same: whereupon C. prayed a Prohibition, but it was denied by the Court; for that it is Tithable in this case. But it was said, That if C. had taken a Crop of Hay, whereof he paid Tithe, and afterwards had put in his Guest-Horses into the After-pasture of that Ground where such Hay was made; in that case it had not been Tithable, because the Parson had Tithe of the Land before. Trin. 16 Car. B. R. Richardson and Cobbell 's Case. Poph. 142. Also if a man lett out his Pasture, reserving the Pasture of a Horse for himself to ride about his Husbandry-affairs, Tithe shall not be paid for the Pasture of this Horse; but if a man keep and breed Horses in his Pasture to sell them, there Tithe shall be paid for the Pasture of such Horses. Trin. 15 Jac. B. R. Larking and Wild 's Case. Poph. 126. Vid. Trin. 9 Jac. B. R. Pothill and May 's Case. Bulstr. par. 1. 171. Vid. Agistment. Vid. Grass.

Pease gathered Green, to eat in the Parishioners Family, no Tithe shall be paid thereof, and that per legem terrae: But otherwise it is in case they be gathered to sell, or to feed Swine therewith, in which Tithe shall be paid thereof. Pasch. 12 Jac. B. per Cur.

Pelts or Fells of Sheep dying of the Rot are not Tithable without a special Prescription for it: The Case was, A. Libelled in the Ecclesiastical Court for the Tithes of Pelts and Fells of Sheep, which Sheep died of the Rot; a Prohibition was prayed, and granted, to stay proceedings in the Ecclesiastical Court, because such Pelts are not Tithable, unless there be a Special Custom for it. Trin. 3. Jac. B. R. Ashton and Willer 's Case.

Pheasants that are Tame, pay a Personal, not a Predial Tithe. If a man hath Pheasants, and keep them in an enclosed Wood, and clip their wings, and they hatch Eggs, and breed up young Pheasants, no Tithes shall be paid of these Eggs or young Pheasants, for that they are not reclaimed, but continue to be Ferae naturae, and would go out of the enclosure, if their Wings were not clipt; and in this case Prohibition hath been granted between Winbrook and Evans, Mich. 11 Car. B. R. It was Surmized, That no Tithes are paid of them in a great Circuit called the Chiltern in the same County, viz. of Bucks, and so Prescribe in non Decimando; but the Court granted the Prohibition, for that they are Ferae naturae.

Pigeons are Tithable, Mores Abr. 1270. But if a man keep a Family, and hath Pidgeon -holes about his House, and he keep some Pigeons, and he kill and spend in his House the young Pigeons that are bred there, he shall not pay any Tithes for them: In this Case between Vincent and Tutt, Hill. 13 Car. B. a Prohibition was granted, and upon the Parsons Plea, that the Parishioner sold them, a Consultation. For Tithes of Pigeons no Prohibition lies, as was Resolved in Jones and Gastrell 's Case. Hill. 15 Jac. B. R. Roll. Rep. For the Court there said, That Tithes ought to be paid of Pigeons, and for Conies, per Doddridge Justice, to which the Court agreed. In the Case of a Prohibition for suing for Tithe- Pigeons, the Defendant in the Ecclesiastical Court pleaded payment, they refuse the validity of that Plea without Proof by two Witnesses: the Court said, it would be a great inconvenience to bring two Witnesses to prove payment of every sort of Tithes, wherefore a Prohibition was granted. Malary and Mariots Case. Cro. par. 1. And in another Case a Prohibition was prayed, where the Parson sued in the Ecclesiastical Court for Tithe of Pigeons, and awarded to stand, because the Court there would not allow the proof without two Witnesses. More 's Abr. Case 1208. Probably the same Case with the former. Vid. Doves.

Pigs, if there be but Nine, as also Calves, if there be but six, and the like, under the number of Ten in one year, the Parson can have no Tithe thereof in kind that year, without a Special Custom for it; but must have his Tithe pro rata either in money the same year, if there be any Custom for it, or in kind the next year, reckoning both years together. Mich. 7 Jac. C. B. Pigs are accounted a Predial Mixt Tithes. Mich. 8 Jac. C. B.

Pits of Stone, Lime, Gravel, Marble, Marle, Chalk, Cole, and the like, are not Tithable; for the Land must not pay a double Tithe. Regist. 51. F. N. B. 53. 9. Broo. Dismes 18.

Plants or young Plants transplanted, are in some cases Tithable; for the Case was, A man had a Nursery of young Plants in his ground, and used to transplant them, and to give or sell them to others, who planted them de novo in their ground out of the Parish; the Parson of the Parish, where the Land lay in which they were first planted, Libelled in the Ecclesiastical Court for the Tithes of the value of the said Plants transplanted, and a Prohibition was granted, and Declaration thereon given, and a Plea given in, and Replication, and thereon Demurrer; and it was argued by Maynard for the Defendant, and Rolls for the Plaintiff: The only point was, Whether Tithes should be paid in that case; it was Resolved per totam Curiam, that it ought to be paid; and thereupon a Consultation was granted . The Case had been otherwise Resolved, if the said Plants so transplanted from the said Nursery had been replanted in the same Parish .

Prescription, which refers to a certain person, House, Land, or other thing, as Custom doth to a County, City, Town, Hundred, &c. may be considered under two respects, either de Modo Decimandi, or de non Decimando: There is also in some Counties a Decimando res non Decimabiles, a Tithing of things in their own nature not Tithable, as the Tithing of Tin and Sea-Fish in Cornwall and Devon, Lead in Derbyshire, &c. but this is by Custom, not by Prescription, which though in respect of Place is regularly of a more extensive latitude than properly Custom is, yet in respect of Persons and Things is regularly under more Restrictive limitations than the other; but as to their Origination, they both ought to be continually-constant without interruption; and as to their Antiquity, both of them ought to be of a more Ancient date, than any Memory of man can contradict; and such being once duly acquired, there are not many interruptions or disturbances that will null or frustrate the same . A Prescription goeth to one man, and a Custom to many. Hill. 6. Jac. rot. 2613. Rolls verse. Mason, Brownl. Rep. par. 1. Prescription is Personal, and always made in the name of a certain person, or his Ancestors, or those whose Estates, &c. But a Custom is Local, and alleged in no person, but that, within the Manor there is such a Custom. Co. 4. Foiston & Cratchwood 's Case. The payment of a Sum of money or other thing in lieu and recompense of Tithe for sixty years or thereabouts, is held a reasonable time to make a Prescription . It was Adjudged in Grisman and Louis Case, That a Prescription to pay Tithes of one thing in recompense of Tithes of another thing, is not good. Adjudged also, that Tithes shall be paid of Agistment of Cattle, against the Opinion of Fitz. 53. Cro. par. 1. This Prescription is Real, that is, it respects not the New or never before Tithed Fruits, but the Tithable grounds that produce them; thence it is, that an alteration of Grain or Plants in the same Ground alters not a Prescription, but he that Prescribes in the one, shall Prescribe in the other also. Yet a Prescription extends to no more than is in possession: And therefore if the Parson of A. Prescribes to the Tithes of the Parish of B. and there happen to be Decimae Novalium, that is, Tithes arising of such Grounds as were never Manured, nor yielded before any profit to the Church, the Parson of B. and not the Parson of A. shall have them; nor will Prescription lie against a Composition between the Parson and the Vicar ; nor hath Prescription any place, where the Interessed (in his right) can make no demand, the matter ceasing, whereupon it should work: So of Wood never cut, the Tithe could never be demanded. Regularly a Prescription to pay no Tithe, nor anything in lieu thereof, is not good, nor will it discharge, though nothing can be proved to have been paid within the Memory of man . Yet a Discharge of Land from Tithes may be shown another way, which will amount to the payment of no Tithe: so that although a mere Lay-man cannot Prescribe in non Decimando ; yet he may Prescribe in modo Decimandi, to pay a Composition to the Parson in lieu of all his Tithes; and such Composition shall bind the Parson, and such a Prescription shall be good . But as to persons Ecclesiastical, such may Prescribe not only in modo Decimandi, but also in non Decimando, and so may their Tenants, whence it is, that a Parson of one Parish having part of his Glebe in another, may Prescribe in non Decimando for the same . So that a Prescription even de non Decimando as for Ecclesiastical persons, their Farmers and Tenants may be good . In Nash and Molin 's Case it was agreed by the Court, That a Spiritual man may Prescribe in Non Decimando. Cro. par. 1. And as for any other person a Prescription de modo Decimandi, that is, to pay Money or other things in lieu of Tithes in kind, is good; and if he can prove it Time out of mind, this will discharge him . Thus a Prescription to pay 4 d. or any other Sum for all his Tithe whatever, or for all his Tithe-Hay, or for all his Tithe-Corn in such a Farm, or in such a Close, or for all his Fruit in such an Orchard, is good. But a Prescription of paying no Tithe-Corn, because he pays Tithe-Hay; or of paying no Tithe of his Cattle, because he pays Tithe-Corn, is no good Prescription . Or of not paying of Tithes in one place, because he pays in another; or of not paying Tithe-Lamb, because he pays Tithe-Wool, vel e contra; or of not paying Tithe for other Cattle, because he pays 12 d. for a Cow: these and the like are no good Prescriptions . Yet a Prescription to pay a less part than a Tenth, may be good and binding. Also a Prescription to pay a penny, called Hearth-penny, in satisfaction of Tithe for all Combustible Wood, may be good . Likewise, a Prescription by the Lord of a Manor, to pay six pound in satisfaction of all the Tithe-Corn within the Manor, and to have the Tenth Sheaf or Cock in recompense of his payment, is good . But if the Prescription be to be discharged of Tithe-Hay of such a ground, or Tithe-Corn of such a ground, and the Owner change the nature of the Ground, as Pasture into Tillage, or Tillage into Pasture, the Prescription is gone . Yet a Prescription is not destroyed by an Alteration of payment, as if instead of the money to be paid, another sum, or Tithes in kind, have been paid for 20 years past . But a Prescription to have Tithes of Houses according to the Rent, is not good; for no Tithes are to be paid for Houses in any City, save in London only . Regularly Prescription refers to one in private, as Custom does to many in public; and where a Prescription de modo Decimandi is denied, there a Prohibition will lie to try it at the Common Law: otherwise, if the Prescription or Custom be agreed . If a Prescription by a Parishioner be to pay the Tenth part of Corn as a Modus Decimandi for the Hay also that grows on the Headlands, it is not good; but such Prescription for the Corn and After-Rakings is good, with an averment, That they are sparsae minus voluntary . If there be a Prescription of a Modus Decimandi for an Orchard or Garden, and it afterwards ceases to be such, the Modus shall cease also, and Tithe shall be paid in kind; but if it afterwards be restored to a Garden or Orchard, by being replenished with Herbs or Fruit-Trees, it shall pay the Modus as formerly . If the Modus be to pay two shillings and the Shoulder of three Deer for a Park, the Modus remains, though the Park be disparked; it is otherwise, in case the Modus be only to pay Venison . Or if the Prescription be to pay a certain Sum of money for all the Tithes of a Park, the Modus shall continue, though the Park be afterwards disparked . A Prescription of a Modus Decimandi generally for a Park is not good, if it be Disparked; but it shall be particularly for all Acres contained in the Park . Prescription being a Temporal thing, is Triable only in the Temporal Courts; and therefore in the Case of Two Parsons of Two several Parishes, where one of them claimed Tithe within the Parish of the other, and said, That all his Predecessors, Parsons of such a Church, viz. of D. had used to have the Tithe of such Lands within the Parish of S. and pleaded the same in the Spiritual Court. The Court was of Opinion, That in this Case a Prohibition did lie, for he claims only a portion of Tithes, and that by Prescription, and not merely as Parson, or by reason of the Parsonage, but by a Collateral cause, scil. Prescription, which is a Temporal cause and thing . And in another Case it hath been Adjudged, That if a Prescription be laid to pay a Modus Decimandi to 100 Acres, or to several things, if there be a failure of one Acre, or of one thing, it is a failure of the whole Prescription . But where it hath been Prescribed to pay in one part of the Land, the Third part of the Tenth; and in another part, the Moity of the Tenth for all manner of Tithes, it hath been held a good Prescription, . These Prescriptions de modo Decimandi are equally incident as well to Lay-persons, as to persons Spiritual or Ecclesiastical; but as to Prescriptions de non Decimando, none but Spiritual persons are capable of being discharged of Tithes in that kind, as was Resolved in the Bishop of Winchester 's Case . Yet a whole Country or County may Prescribe de non Decimando, though this or that particular mere Layman cannot ; nor indeed can the other, unless there be sufficient Maintenance for the Clergy besides . The Prescriptions de modo Decimandi are confirmed by Act of Parliament ; and if any Lay-man will Prescribe de non Decimando, to be absolutely discharged from the payment of Tithes, without paying anything else in lieu thereof, he must Found it in some Religious or Ecclesiastical person, and derive his Title to it by Act of Parliament ; and it is not sufficient to say, That they who Prescribe de non Decimando, are Churchwardens who have Land belonging to their Church, for they are neither Religious nor Spiritual persons : But they who are such indeed, may so Prescribe not only for themselves, but also for their Tenants and Farmers , as was formerly said. So also may the Kings Patentees of those Abbey -Lands that came to the Crown by the Statute of 31 H. 8. Prescribe de non Decimando, by force of the said Statute, if so be it may be proved, That they have beyond the Memory of man so enjoyed the Lands discharged from the payment of Tithes: But for a Parishioner to Prescribe to Non-payment of Tithes, because he hath Time out of mind repaired the Church, is no good Prescription: otherwise, in case he had repaired the Chancel, and in consideration thereof had been quit of Tithes; the Reason is, because the Parson not being obliged to repair the Church, hath no recompense . And in Sherwood and Winchcombs Case it was Resolved, That a man cannot Prescribe to have Tithes as parcel of a Manor, for that they are Spiritual; but a Prescription to have Decimam partem granorum, is good. Cro. par. 1. In a Case for a Prohibition; A. Libelled in the Ecclesiastical Court for Tithes of rough Hay growing in Marshes and Fenny-grounds in M. The Plaintiff Surmized, That there was 2000 Acres of Fenny-Lands within the Parish, and 600 Acres of Meadow, and that the Parishioners paid Tithes of Hay and Grain, growing upon the Meadow and Arable Land, and had paid a certain Rate for every Cow, and because they had not sufficient Grass to keep their Cattle in Winter, they used to gather this Hay, called Fenny-Fodder, for the subsistence of their Beasts for the better increase of their Husbandry; and for this cause had been always freed from the payment of the Tithes thereof. It was Resolved, That the Surmize was not sufficient for a Prohibition; for one may not Prescribe in non Decimando, and their alleging, That they bestowed it on their Cattle, is not a cause of Discharge: A Consultation was awarded. Webb and Sir Hen. Warners Case. Cro. par. 1. Also in Monday and Levice 's Case in a Prohibition, it was Adjudged, That it was not a good Prescription that Inhabitants have used to pay Calves and Lambs, and a penny for every Milch-Cow, in satisfaction of all Tithes of Lambs, Calves, Milch-kine, and all Barren and other Beasts, and Agistments. More 's Rep. And where a Parson sued for Tithes of Fodder, and the Parishioners Prescribed in Non Decimando, because the Fodder was for their Cattle which manured their Land: It was held no good Prescription; but it was Agreed, Tithes should not be paid for their Agistments, nor for Hedge-wood to enclose the Corn, nor for Fuel. More, ibid. Case 892. In the Case between Pigott and Hearne, the Lord of the Manor of B. in the Parish of D. did Prescribe, That he and his Ancestors, and all those whose Estates, &c. had used from time to time, whereof, &c. to pay to the Parson of D. the now Plantiff, and his Predecessors 6 l. per Ann. for all manner of Tithes growing within the said Parish; and that by reason thereof, he and all those whose Estates, &c. Lord's of the said Manor, had used time whereof, &c. to have Decimam Garbam & decimum Cumulum Garbarum of all his Tenements within the said Manor. It was in this Case Resolved, (1) That it was a good Prescription, and that a Modus Decimandi for the Lord by himself, and all the Tenants of his Manor, for barring the Parson to demand Tithes in kind, is a good Prescription, because it might have a lawful Commencement. (2) It was Resolved, That it was a good Prescription to have Decimam garbam & decimum Cumulum garbarum vel granorum, or the Tenth shock; for he hath it as a Profit Appender, and not as Tithes. (3) Resolved in this Case, That if the Queen be Lady of the Manor, she may Prescribe to have Tithes, for that she is capable of them, she being Persona Mixta & Capax Spiritualis Jurisdictionis. More's Rep. And in Green and Handlyes Case it was Resolved, (1) That it is a good Custom to pay the Tithe-Wool at Lammassday, though it be due upon the clipping. (2) That for the Pasturage of young Barren Cattle preserved for the Plough and Pail, no Tithe shall be paid. (3) That a Prescription to pay a penny called a Hearth-penny, in satisfaction of the Tithe of all Combustible Wood, is a good Prescription. More. Case 1213.

Privilege is derived from the Supreme Authority upon good Consideration, and refers sometimes to Persons, sometimes to Places, and is an exemption from Tithes derived from such Supreme Authority. None are to pay Tithes for Lands privileged or lawfully discharged from the payment thereof. Stat. 2 Ed. 6. c. 13. yet such Privileges as are merely Personal, do not exempt Lands from the payment of Tithes, longer than they are in the hands or occupation of Priviledged persons.

Q

QVarries of Stone are not Tithable. Adjudged Mich. 19 Eliz. B. R. & Pasch. 34 Eliz. C. B. Liff and Watts Case. Cro. par. 1. & More's Rep. Nor do the Quarries of Slate, Cole, or the like pay any Tithe. More. Case 1275. Nor Quarries of Lime, Gravel, Sand, or Clay, for these are parcel of the Inheritance. Regist. 55. F. N. B. 53. Broo. Dismes 18. Mich. 15 Car. B. R. Skinner 's Case. No Tithes shall be paid of Quarries, for they are parcel of the Freehold. Hill. 11 Jac. B. R. per Curiam.

R

RAkings of the Stubble of Corn or Grain are not Tithable, for they are to be left for the Poor and Orphans, and the Law will not give to the Parson or Vicar Tithe of that which is appointed for Alms. Mich. 6 Jac. C. B. Smith 's Case. & Pasch. 7 Jac. C. B. Adjudg. Cro. 1. 660. So that whereas it is said, that the Rakings of the Stubble of Corn is not Tithable, where the Corn it self was Tithed. More. Case 433. It may not be understood as if the Tithing the Corn itself were the Reason why the Rakings are not Tithable, but because they are by the Law of Moses . due to the Poor, and therefore not to be Tithed; understand this also of Ordinary Rakings not voluntarily scattered, for of such only it is that no Tithes shall be paid, as not due by the Levitical Law, and for that they are but the scattering of the Grain whereof he had paid Tithes before. Pasch. 7 Jac. B. per Curiam. Hill. 8 Car. B. R. Saunders & Paramour, per Cur. Trin. 3 Jac. B. R. Pasch. 14 Jac. B. R. Pitt and Harris, Prohibition granted; otherwise it is, in case the Rakings were voluntarily and fraudulently scattered. Hill. 14 Jac. B. R. Peck and Harris per Cur. Adjudged. Mich. 3 Jac. B. R. per Popham. Pasch. 7 Jac. per Cur. Mich. 14 Jac. B. R. Joyse & Parker. And where there is a Prohibition of Tithes of Rakings, the Suggestion ought to be, That they were Minus voluntary sparsae, otherwise it is not good; for it is not sufficient to say, That they were Lapsae & dissipatae in Collectione. . And it was Resolved in Johnson and Awbrey 's Case, That Tithes are not to be paid for After-pasture of Land, nor for Rakings of Corn. Also in Green and Hunn 's Case, a Prohibition was for suing for the Tithes of Rakings of Barley, a Prescription to make the Barley into Cocks being alleged, and to pay the Tenth Cock in satisfaction of all Tithes of Barley, and Adjudged a good Prescription. Notwithstanding in the Case between Bird and Adams, in a Prohibition to stay a Suit in the Ecclesiastical Court for Tithes of the Rakings of Lands, after the Crop of Corn was taken away: It was held, That the Prohibition would not lie, but that Tithes should be paid of Rakings. More 's Rep. But vid. 42 Eliz. B. R. in Green and Hale 's Case, it was Adjudged, That by the Custom of the Realm Tithes should not be paid of Rakings. Also in Green and Handlye 's Case it was Resolved, That Tithes should not be paid of the Rakings of Corn, unless it be a Covinous Raking to deceive the Parson. More. Case 1213.

Rate-Tithe is that which is paid according to the Custom of the place, for the Feeding of Sheep and all other Cattle (except Labouring Oxen and young breed of Cattle) for the Pasture and Increase thereof, whether they fed on the Common or elsewhere.

Roots of Coppice-Woods grubbed up, shall not pay Tithe, unless it be by Custom, as hath been Adjudged in Skinner 's Case. Mich. 15 Car. B. R. & Marsh. 58. In which Case it was also Resolved, That if a man cut a Coppice-wood, and thereof pays the Tithe, and after before any new Sprouts grow, he grubbs up the Roots and Stubbs of the Wood, he shall not pay Tithes thereof, for they are parcel of the Free-hold .

S

SAffron pays a Predial Tithe, and is inter Minutas Decimas, as appears by Bedingfield and Feaks Case, Pasch. 38 Eliz. B. R. Where the Farmer of a Parsonage sued in the Ecclesiastical Court for Tithes of Saffron against the Vicar: the Vicar pleaded, That he and his Predecessors Time out of mind had had the Tithe of all Saffron growing within the Parish. The Plaintiff pleaded, That the Land where the Saffron was growing this year, had been for 40 years before sowed with Corn; and because they in the Ecclesiastical Court would not allow the Plea, a Prohibition was prayed; because the Right of the Tithe did come in debate. It was Adjudged, That a Consultation shall be awarded. Yet Mich. 10 Jac. B. R. per Curiam, they are said to be Great Tithes. Vid. Bedingfield & Feaks Case. Cro par. 1. Whence it may be observed, That by the Ecclesiastical Law, the Vicar shall have Tithe of Saffron of Land newly sowed with Saffron, albeit the Parson before had Tithe of the same Land being sowed with Corn .

Salt: By Custom Tithe shall be paid of White Salt. Trin. 16 Jac. B. R. Case Jones & Gower, Admit. But Prohibition granted on a Modus.

Sheep, if they continue in the Parish all the year, the Tithe thereof in kind may be claimed by Custom; but if they be sold before Shearing-time, and a halfpeny be then claimed to be paid for every Sheep so sold, it is held a very unreasonable Custom . If Sheep stray out of one Parish into another, and there yean, no Tithe is payable for this to the Parson of that place; but if they go there for thirty days or more, for this a Rate-Tithe is payable to that place; for, for Sheep removed from one Parish to another, each Parson must have Tithe pro rata: But under thirty days no Rate-Tithe is to be paid. Likewise Sheep Feeding all the year in one Parish, and Couching in another, the Tithe shall be equally divided betwixt the Parsons. So likewise if Sheep go a while in one, and another while in another Parish, a Rate-Tithe is payable, as aforesaid, to both. But if Sheep are brought only by Night to dung the Land, no Tithe there is to be paid, unless they Feed there half their time. And if Sheep be brought from one place to be shorn in another, where they were not before, the Tithe is payable where the shearing is, unless it be paid to the Parson of the place from whence they came. Trin. 3 Car. B. R. in a Prohibition inter Ashton and Willer. And where several men's Sheep feed in one Flock under one Sphepheard, they shall be severally Tithed by their respective Owners. Lindw. c. Quoniam propter, verb. Lanae. A Prohibition was prayed, because the Parson Libelled in the Spiritual Court for the Tenth part of a Bargain of Sheep, which had depastured in the Parish from Michaelmass to Lady-day: the party Surmized, That he would pay the Tenth part of the Wool of them, according to the Custom of the Parish: The Court would not grant a Prohibition, for that, by this way, the Parson might be defrauded of all, and the Sheep being now gone to another Parish, he cannot have any Wool at this time, because it was not the time of Shearing .

Spoliation or the Action thereof, may be commenced in the Ecclesiastical Court, where one Parson takes away the Tithes or Profits belonging to the Church of another Parson, if the Tithes and Profits belonging to the Church of that other Parish, do not amount to the Fourth part of the value of the Church, in which case the one Parson shall have a Spoliation against the other in the Ecclesiastical Court, although they claim by several Patrons; and if they claim both by one Patron, there the one shall have a Spoliation against the other, although the Profits do amount to above a Fourth part, as to a Third part, or to the Moity of the Church, because the Patronage doth not come in debate. But if the Profits do amount to above the Fourth part of the Church, and they claim by several Patrons, that if one Parson sueth a Spoliation in the Ecclesiastical Court against the other, the party grieved shall have an Indicavit, which is in the nature of a Prohibition, unto the Ecclesiastical Court, because the Right of the Patron doth come into debate: But where the Right of Tithes doth only come into Debate, and not the Patronage, there the Jurisdiction doth belong unto the Ecclesiastical Court. Co. Select Cases, in the Case de Modo Decimandi 38, 39, 40, 46. 38 H. 6. 20. by Fortescue, 26 H. 8. 3. acc. And if there be a Contention De jure Decimarum, Originem habens de jure Patronatus, tunc spectat ad Legem Civilem, by the Opinion of all the Justices. Mich. 29 El. B. R. in Bushie the Vicar of Paucas Case. Godbolt. 63.

Sylva Caedua doth pay a Real and Predial Tithe; by Sylva Caedua is to be understood, all such Trees of what kind soever, as may be cut, and being cut do grow again from the Stock or Root. Lindw. c. Quanquam ex Solventibus, lib. 5. Or all such Wood as may be cut, and (after Lopping, Topping, or cutting from the Boughs, Branches,