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 Custome of Tithing Milk or Calves of Cattel 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 Custome 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 peny in most places unless something be in the Custome against it Also the Tithe of Calves Colts c. is to be apportioned with respect to the places where they were engendred brought forth and nourished but Custome must prevail Cattel 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 Cattel 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 labour in the Tithes of the Corn. Tithes are not due for the young Cattel 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 Cattel which a man rears for his Dairy dict Cas Joyse dict Cas Kneebon Prohibition granted If a man according to the Custome of the Countrey 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 Cattel 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 Cattel 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 Cattel 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 Cattel eaten in the Parishioners Family no more than for Cattel reared for the Plough and Pail Cattel 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 Cattel do stray And as Dry Cattel though bred for the Plow are Tithable if they be sold away before they are put to that use so also are Fatted Cattel if they be sold or killed for the House but according to the Custome of the place Likewise for young Cattel 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 engendring by the Month-Rate Also Cattel 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 Cattel doth dwell But if Cattel 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 daies but of any less time than a Month no Tithe is payable If Cattel 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 Cattel 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 è 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 Custome 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 Custome 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
Custome 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 alledged a Custome 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 Custome That time out of mind there hath been paid Milk Calves c. for the Cattel 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 Cattel that feed thereon or of the Ground for the Tithe thereof if Custome be not against it And as for Herbage growing at Lands-ends adjoyning 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 after-After-pasture 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 Hop-poles 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 Custome 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 Custome 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 alledged 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 Custome 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 〈…〉 â—â—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
that Nag or Horse for that it is a Barren Beast not renewing but kept only for Labour 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 Mountague Crook and Doderidge 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 è contra for it seem'd to him That no Barren Cattel 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 Labour 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 shewed 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 Cattel 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 Cattel bought and and Fatted to sell again of such Cattel allowance is to be made for their Herbage because that a Profit doth come in by them but otherwise it is of saddle-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 priviledged 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 labour and industry paid by Servants and others once a year to the Parson or Vicar according to the Custome 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 Custome certain and obligatory They were anciently due to the Parson of the Parish that officiated at the Mother-Church or Chappels that had Parochial Rights but if they were paid to other Chappels 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 Customes 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 Doe 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 Doe 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 kill'd in the Park and all the Deer die or are kill'd 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 Custome is otherwise In Thursbie's Case where Suit was for Tithe-Corn growing in a Park lately Disparked the Defendant pleading a Custome 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 Custome 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 Custome had been a Deer out of this Park only for then by the destroying of that the Custome 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 Custome if it may be paid out of any Park and if the Custome 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 Custome yet Pasture-grounds sed with Cattel 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 peny 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 Labour 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 Inn-keeper because that the said C. took all the benefit of his Pasture by putting guest-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-Guest-Horses into the after-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 pray'd and granted to stay proceedings in the Ecclesiastical Court because such Pelts are not Tithable unless there be a Special Custome 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
Canterbury to whose Archbishop it was directed Lindw c. nuper Abbates de Decim And in the Second Lareran Council holden An. 1120. being nigh 60 years before that abovesaid it was Decreed by the said Innocent 3. That the Religious persons viz. the Cistertians Hospitallers Templers and those of St. Johns of Jerusalem which by the Popes Paschal and Adrian were exempted from payment of Tithes should pay the same unto the Parochial Incumbents whereby a Parochial Right of Tithes is settled by a Lateran Council 11. At the Common Law it seems a Parson cannot make a Lrase Parol of his Tithes but may discharge them per parol for in Bellam's Case against Belthrop it was Ruled by Doderidge Jones and Whitlock Justices That where the Defendant in a Trover and Conversion of certain Loads of Fetches justified under the Lord Clare by a Demise per parol for Tithes of Grain for one year made in April that the Lease was not good but altogether void but the Parson may discharge the Parishioner of Tithes per parol or Lease the Rectory consisting of Glebe and Tithes per parol for years 12. In Skelton's Case against the Lady Airie it was said that it was Adjudged Mich. 34 35 Eliz. That a perpetual union of the Parsonage and the Land charged is a sufficient discharge of the Tithes and a Prescription may be well enough to be discharged of the payment of Tithes as it appears by a Case put in the Archbishop of Canterbury's Case Coke lib. 2. G. Crook Counsel è contra conceived that a perpetual Unity was no perpetual discharge and said there was no Judgment given in the Case cited before he also cited 10 H. 7 or 6. where the manner of Tithing is set down he also cited the Bishop of Winchester's Case Coke lib. 2. also the Prior of D. to be Resolved in 40 Eliz. That a Copyholder may Prescribe to be discharged of Tithes by pleading That he was alwaies Tenant by Copy to a Spiritual Corporation and he said That it was Adjudged in Sheddington's Case That if a man Prescribe to be discharged of payment of Tithes by reason of payment of another kind of Tithe that this is not good 13. The Parson of D. Covenanted with one of his Parishioners that he should pay no Tithes for which the Parishioneâ—r Covenanteth to pay to the Parson a certain Annual Sum of money and afterwards the Tithes not being paid the Parson sued him in the Ecclesiastical Court and the other prayed a Prohibition And it was agreed That if no Interest of Tithes pass but a bare Covenant then the party who is sued for the Tithes hath no remedy but a Writ of Covenant And the better opinion of the Court in this Case was That this was a bare Covenant and that no Interest in the Tithes pass 14. In Warner's Case against Barrett in the Ecclesiastical Court it was said by Richardson That before the Stat. of Ed. 6. the proper Suit for Tithes was there and if they allow not one Witness to prove payment a Prohibition shall be granted And he put Morris and Eaton's Case in the Bishop of Winchester's Case where it was Ruled if the Spiritual Court will not allow that Plea which is good in our Law a Prohibition lies as in case of Tithes 15. It was moved for a Prohibition because a Parson had Libelled against a Parishioner for Tithe-wool of Rotten-sheep which he ought not to have because he shall have Tithe for the same thing at Shearing-time afterwards as where Tithe is paid for the Cuttinâ—s of Grass it shall not be afterwards paid for the After-math It seemed otherwise to Doderidge and Jones because it is for the same thing there but here the Parson hath no recompence for the Wool And Jones said That if the Parishioner sell Sheep the Parson shall have allowance of the Tithes thereof after the shearing and upon this point a Prohibition was denied Secondly there is a Custome that if a Parishioner hath three Calves he shall pay a peny for the Tithe thereof if seven Calves then one Calf The Parson sued for one Calf because the Parishioner had three one year and four another and for that he had no Tithe for the first three And thereupon a Prohibition was granted 16. In Huddleston and Hills Case it was said That if a man Sue in the Ecclesiastical Court for Tithes of Headlands the Defendant may have a Prohibition but he ought then to suggest That they are but small Headlands and that there is a Custome of Discharge in consideration that he paid Tithes in kind of Meadows And in this case Williams said That if a man keep Sheep in one Parish until shearing time and then sell them into another Parish in this case the Vendee shall pay the Tithe-wool to the Parish where they were depastured in the greater part of the time of the growing of the Wool And in the Case of one Nicholas and W. Ward it was agreed That Tithe Lamb and Wool was included within Small Tithes 17. In Banco Regis a Prohibition was prayed because a Parson had Libelled in the Ecclesiastical Court for the Tenth part of a Bargain of Sheep which had depastured in the Parish from Michaelmass to Lady-day and the party surmized that he would pay a Tenth of the Wool of them according to the Custome of the Parish But the Prohibition was denied for as Doderidge Justice said By this way the Parson shall be defrauded of all if he shall not have his Recompence for now the Sheep are gone to another Parish and he cannot have any Wool at this time because it was not the time of shearing Nota per Whitlock de animalibus inutilibus the Parson shall have the Tenth part of the Bargain for Depasturing as Horses Oxen c. But de animalibus Vtilibus he shall have the Tithe in specie as Cows Sheep c. 18. The Rector of the Church of D. Libelled in the Ecclesiastical Court for the Tithes of a Riding-Nagg where the Case was That a man lett his Land reserving the running of a Horse for some time when he had occasion to use him there The Desendant shewed this matter in the Court by his Council and prayed a Prohibition and abetts that for the same Land in which the Horse went he paid Tithes And by the Court nigh London a man wil take 100 or 200 Horses to Grass now he shall pay Tithes for them otherwise the Parson shall be deseated But in this Case if the Desendant alledge and prove that it was a Nagg for labour and not for profit a Prohibition lies 19. In the Case of Bowry against Wallington where W. had Libelled in the Ecclesiastical Court against B. for the Tithes of Wool and Lamb and B. upon suggestion of a Modus Decimandi obtained a Prohibition and had an Attachment and declared upon it
not averr that that Hay was growing upon Greenskips c. And an Exception was taken by Henden 1. That the Exception is double the Custome and the Common Law And by Yelverton That is not material for you may have twenty Suggestions to maintain the Suggestion of the Court but Richardson was against that that a Suggestion might be double here for the Suggestion of the Common Law is a Surplusage As in Farmer and Norwich's Case here lately One Prescribes to be discharged of Tithes where the Law discharged him and so was discharged by the Common Law Second Exception is That he doth not apply the Custome to himself in the Suggestion for he that lays the Custome does not shew that the Hay grew upon the Skips upon which a Plough might turn it self and for this cause by the whole Court the Suggestion is naught And here Richardson moved how that Two should joyn in a Prohibition Yelverton If they are joyned in the Libel they may joyn in the Prohibition and that is the common practice of the Kings Bench. Richardson The wrong to one in the Ecclesiastical Court by the Suit cannot be a wrong to the other Hutton They may joyn in the Writ but they ought to sever in the Declaration to which Harvey agreed Yelverton The Prohibition is the Suit of the King and he joyns tant as in a Writ Richardson But it is as the Suit of the party is and if any joyn here I think good cause of a Consultation It is against the profit of the Court to suffer many to joyn And it is usual in the Case of Customes of a Parish in debate to order Proceedings in the two Prohibitions and that to bind all the Parish and Parson And it was said by them all That the Consideration of making Hay is a good Discharge because it is more than they are bound to do 53. F. sued V. for Tithes of Hay which was upon Land that was Heath-ground and for Tithes of Pidgeons And by Richardson If it was meer Waste-ground and yield nothing it is excused by the Statute of payment of Tithes for seven years But if Sheep were kept upon it or if it yield any Profit which yield Tithes then Tithe ought to be paid As the Case in Dyer And for the Pidgeons which were consumed in the House of the Owner he said and for Fish in a Pond Conies Deer it is clear that no Tithes of them ought to be paid of Right wherefore then of Pidgeons quod nemo dedixit And a day was given to shew cause wherefore a Prohibition should not be granted And the Court agreed That it was Felony to take Pidgeons out of a Dove-house And afterwards a Prohibition was granted but principally That the Pidgeons were spent by the Owner But by Henden They shall be Tithable if they be sold 54. P. the Vicar of Eaton in the County of Oxon Sues C. the Parson Impropriate in the Ecclesiastical Court in Oxford pro Minutis Decimis C. sues a Prohibition against the Vicar upon a Surmize of a Prescription P. comes and pleads the first Endowment made An. Dom. 1310. by which the Minute Tithes were allotted to the Vicar C. demurrs and Adjudged for the Plaintiff for the Parson cannot Prescribe against the first Endowment 55. In Debt upon the Stat. of 2 E. 6. for not setting out of Tithes the Plaintiff declares That the Defendant was seized of the Lands in question within that Parish and that the Tithes did belong to the Parson and Vicar viz. Two parts to the Parson and the Third part to the Vicar or their Farmers payable in specie for 40 years last past that the Plaintiff was Farmer proprietary of the Tithes to the Parson and Vicar spectant and shews the value of the Tithes due and demands the treble value the â—â—â—ndant pleads Niâ—il debet per patr and it was found for the 〈◊〉 It was now moved in Arrest of Judgment because the Plaintiff ought to have brought two Actions as the Parson and the Vicar ought for their several parts But Resolved that the Action is well brought for it is a Personal and one entire Debt for one wrong 56. Bott sues a Prohibition against Sir Edward B. and suggests That the Defendant is Parson Impropriate of W. and that time out of mind there hath been a Curate of an Incumbent by the appointment of the said Rector who administred the Sacraments c. And that the Custome of that Parish time out of c. was that the Curate should have 〈◊〉 Tenths renewing within that Parish except Decimas graâ—â—â—â—m which were paid to the Parson and that every Parishioner who had so paid the Tenths to the Curate was discharged against the Parson And that notwithstanding that c. Sir Edward B. had sued him c. And now he prays a Prohibition and had it but after that Surmize was adjudged insufficient without Argument by the Court and a Consultation granted for such Curate cannot Prescribe against his Master that may remove him at his pleasure And for that reason it was not a good Prescription for the Parishioners 57. Goodwin being Vicar sues in the Ecclesiastical Court the Dean and Chapter of Wells bâ—ing Parson of a Church for a Pension and they pray a Prohibitionâ— and it was denied For that Pension is a Spiritual thing for which the Vicar may Sue in the Spiritual Court Note that they entitle themselves to that Parsonage by a Grant of H. 8. who had it by 31 H. 8. of Dissolutions 58. It was said by Hutton in Spencer's Case That by the Civil Law the Parishioner ought to give notice to the Parson when the Tithes are set forth But it was adjudged That the Common Law doth not so oblige a man 59. B. by his Deed Compounds for Tithes and after Sues for them in the Ecclesiastical Court by Popham and Gawdy That an Action upon the Case lies Vid. E. 4. 13 Mich. 4 Jac. The Lady Waterhouse was sued for the Tithes of Trees whereof none were due c. there an Action upon the Case does not lie for the Parson or person may well be ignorant of what things are due otherwise he Sues against his own knowledge 60. To have a Prohibition the Surmize was That the Inhabitants of D. of which he is an Inhabitant have paid un mod decimand c. And they were at Issue and he proved only that he himself had paid it and yet well And no Consultation for every particular is included in the general and proved by it And it appears sufficient matter for a Prohibition and to oust a Spiritual Court of their Cognizance 2 Agreed that where the Statute appoints Proof of the Surmize to be by Two it is sufficient if Two affirm that they have known it to be so or that the Common Fame is so 61. Upon a Surmize by a Parishioner That he had Compounded
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 expence 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 it self 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 yearsâ— 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 meerly 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 shewed 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 Sea-walls 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 shewed 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 labour 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 Countrey 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 Custome of the Countrey 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 Elme 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 Countrey for Wood as in Buckinghamshire for there it is reputed Timber but in a plentiful Countrey 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
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 waies 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 for ever 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 Diocess 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 Custome 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 Custome 15 Car. B. R. For no Tithes de jure without a Custome 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 Custome be alledged 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 Custome Yet Corn of all kinds fowed is Tithable according to the Custome of the place and is commonly Tithed by the Tenth Shock Cock or Sheaf where the Custome of the place is not otherwise but not to put the Parsons Tenth up on end in Shocks unless the Custome 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 priviledged 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
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 Templers whose Lands were annexed to the Priory of St. Johns The Templers had a Special Priviledge 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 Priviledge for by the Common Law a Lay-person was not capable of such a Priviledge and the King should not have the benefit of the Priviledge 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 stolâ— out of a Dove-house no Tithe is to be paid of such Tithes shall be paid de jure of young Pidgeons Mich. 14 Jac. B. between Whatley and Hambury Resolved Hill 15 Jac. B. R. Resolved and a Prohibition denied in Gastrell's Case By Custome Tithes may be paid of Pigeons spent in a mans 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 Custome of the place which serves for the Tithe of the Tame and Domestick 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 meerly 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 Custome 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 Custome 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 shewed 5 Car. where a Prohibition was granted against the same Parson for suing for Tithe-Eeles 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 replyed That that might peradventure be by Custome 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 Eeles taken in a Common River in the Parish of Barton in Westmerland 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
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 mans own ground Ibid. Cas 1522. Notwithstanding the Premisses 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 yeild a Personal Tithe as well as other Handicrafts-men but Custome 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 Priviledge 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 Labour 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 alledged 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 Bulâ—â—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 Labour 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-peny 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 Doderidge held That if there be not a Special Custome alledged 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 Labour 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 Custome of the Countrey 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 Doderidge 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 Custome for all Mills erected or to be erected and this appearing to be a New-erected Mill Whether the Custome shall run to this or not upon the Statute of Articuli Cleri c.
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 Custome of the place for the Feeding of Sheep and all other Cattel except Labouring Oxen and young breed of Cattel 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 Custome 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 Custome 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 Custome 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 Custome 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 daies 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 daies 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 mens 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 Custome 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 Stock or Root do grow again by which are excepted Great Trees and Timber-Trees So that of Sylva Caedua and Underwoods Tithes are payable but not of Great Trees or of twenty years growth and that by the Statute of 45 Ed. 3. cap. 3. Whereby a Prohibition will lie in case c. which Statute exempteth Wood of twenty years growth and upwards from the payment of Tithes as Prescription doth such Wood as hath not been Fell'd in the Memory of man yet Wood of the age aforesaid not in use nor apt for Timber is under permission of the said Statute Tithable Body and Bough Felled or Lopped And such Woods as are not Sylva Caedua nor Tithable go under the notion of Gross Woods or Great Wood viz. such as are usually employed for the building of Houses Mills c. as hath been Resolved of which sort are Oak Ash Elm Beech Horn bean and Asp
interdum vicesima aut tricesima And in Heâ—sloe's Case Co. 9. par it is said That Tithes Quatenus Tithes were Spiritual things and due ex jure Divino and were not accounted as Temporal Inheritances Hence it is That where a Parson leased all his Glebe Lands with all Profits and Commodities rendring 13 s. 4 d. pro omnibus exactionibus demandis and afterwards Libelled in the Spiritual Court against his Lessees 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 Parishioners all Demands in his Lands his Tithes thereby are not extinct and therefore a Consultation was granted And in the like case it hath been Adjudged That the Lessee should pay Tithes to the Parson for that they are jure Divino due and cannot be included in Rent If a Parishioner sets forth his Tithes and sever the Tenth part from the Nine parts justly and truly although he doth not give Personal notice to the Parson nor general notice in the Church of the time of setting forth his Tithes whereby the Parson might be present at the setting of them forth and to see that it be justly done yet it is a good setting forth of the Tithes as in the Case between Chase and Ware in a Writ of Error upon a Judgment in an Action upon the Case against the Parson for leaving his Tithe of Hay upon the Parishioners ground after notice of setting them forth whereby the Parishioner lost his Grass there But it was not alledged that the Parson had notice of the time of setting them forth and yet the Court affirmed the Judgment against the Parson A. Parson in Consideration of 20 s. yearly promised to B. that B. should pay no Tithe for a certain Wood per parol and in Consideration thereof B. promised to pay the 20 s. yearly and this Agreement was during their Lives B. made a Lease at Will of the Wood the Lessee had a Prohibition against him for the Agreement was good and Jermyn demanded what Remedy against the Lesse for the 20 s. Doderidge None but he shall have Action on the Case against B. or his Executors but the Lessee for years may have Action against the Parson if he Sue him in the Ecclesiastical Court. For the Case was There was an Agreement per parol made between S. Parson and B. the Parishioner B. promised to S. for himself his Executors and Assigns to pay him Ten load of Wood and 10 s. for the Tithe of a Wood during the life of S. And S. promised not to Sue him c. for any other Tithe B. dies his Executor made a Lease at Will of the Wood the Question is whether the Tenant at Will may take his Action against the Parson who sued him for other Tithes c. In a Prohibition against a Parson who sued for Tithes it was Surmized That the Clerk of the Parish and his Predecessors Assistants to the Minister had used to have five shillings for the Tithe of the Lands where c. It was the Opinion of the Court That if this Special matter be shewed in the Surmize it might perhaps be good by reason of long continuance But they held that by Common intendment Tithes are not payable to a Parish-Clerk and he is no party in whom a Prescription can be alledged wherefore a Consultation was awarded The Parson of T. sued for Tithe-Wood of the Park of T. for a Prohibition it was surmized That he and all those c. time out of mind c. had used to pay to the Vicar of T. ten shillings yearly for all Tithes of Wood growing in the place and the proof was That he paid ten shillings for discharge of Tithe-Wood in the Park and two other places The Prohibition was denied and a Consultation awarded because the right of Tithes between the Parson and the Vicar came in question and because the party failed in the proof of his Prescription In a Prohibition to stay Suit for Tithes surmizing that he set forth his Tithes and for some reasonable cause he detained part of them And the Parson sued him in the Ecclesiastical Court upon which it was Demurred because by the fetting forth they were Lay-Chattels But the Court held That the Prohibition did not lie for against the party himself who setteth forth his Tithes a Suit is maintainable in the Ecclesiastical Court if he detains them although he might have his Remedy for them at the Common Law Otherwise if they were taken away by a Stranger after they were set forth For a Prohibition it was Surmized That he had used to pay the Tenth sheaf of Corn the Tenth Cock of Hay the Tenth Fleece of Wool and so the like in satisfaction of all Hay Corn Cattel c. And it was held That it was no sufficient Surmize for a Prohibition because that which he used to pay is but the Tenth in kind In Sands and Pruries Case the question was whether Tithes were grantable by Copy It was Objected they could not because it is against the nature of Tithes whereof none could have property before the Council of Lateran and it was impossible there should be any Custome to demise them by Copy when none had interest in them and they cannot be parcel of a Mannor for they are of several natures though united in one mans hands But by the Court Resolved they might be granted by Copy so it had been time so out of mind A Parishioner severed his Tithes but being in a Close the Gate was locked so as the Parson could not come at them The question was whether the Gate were locked or open and thereupon a Prohibition brought The Court was of Opinion that although the Tithes were severed yet they remain Suable in the Ecclesiastical Court and then the other is but a consequent thereof and Triable there and the Prohibition denied In Sharington and Fleetwood's Case it was Resolved That if a Parson Libels for Tithes and a Prohibition is granted and after he Libelleth for the Tithes of another year the first Suit not being determined an Attachment upon the Prohibition lieth against him And in the Case between Talentire and Denton where the Bishop of Carlisle being seized in Fee of Tithes in right of his Bishoprick made a Lease of them for Three Lives rendring the ancient Rent the Tithes having been usually demised for the same Rent It was Resolved That the Lease was not good against his Successor because he had not remedy for the Rent by Distress or Action of Debt Otherwise it had been if only a Lease for years for there Debt lieth for the Rent In Leigh and Wood's Case it was Resolved That if the Owner sets forth his Tithe and a Stranger takes them no Suit shall be for the same in the Ecclesiastical Court