Different Kinds. Norton v. Gwill. 428. indeed may be seen and felt, but they exist only in contemplation of law. It follows that they are incorporeal, for the law ascribes corporiety only to those objects which are substantial and permanent. 5. Tithes are of three kinds, predial, mixed, and personal. Predial tithes are such as arise merely and immediately from the vegetable produce of the land because a piece of land or ground being called in the canon law prædium, whether it be arable, meadow, or pasture, the fruit or produce thereof is called predial. Nor is any allowance made for the trouble and expence of raising any species of vegetable which yields profit. 6. Mixed tithes are those which arise, not immediately from the profit of the land, but from the produce and increase of animals nourished by the land. 7. Personal tithes are the profits which arise from the labour and industry of man, employing himself in some trade or employment; being the tenth of the clear profits, after deducting all expences. 8. Tithes are again divided into great and small. Where the tithe of a thing is magnus ecclesiæ proventus, it is reckoned among the great tithes. Where it is parvus ecclesiæ proventus, it is considered as a small tithe. Thus the tithes of corn, hay, and wood are called great tithes; because they are in general of much greater value than any other species of tithes. And the predial tithes of other less valuable vegetables, together with mixed and personal tithes, are called small tithes. 9. It was formerly doubted whether the distinction between great and small tithes arose from the nature of the vegetable, or from the quantity of it in any particular parish. But it is now settled that the quantity of any particular vegetable raised in a parish, cannot alter the nature of the tithe; for in that case, corn and hay might in some parishes be a small tithe; and in conformity to this principle, Lord Hardwicke Smith v. Wyatt, held, that the tithe of potatoes, though sown in great Gwill. 777. quantities in common fields, was a small tithe. Bennett, 10. This doctrine has been confirmed by a determi- Simms v. nation of Lord Henley, who held that tithes are by 7 Bro. Parl. law denominated and adjudged to be great or small, Ca. 29. according to the nature of the vegetable; not from. the mode of cultivation, or the use to which it was applied. 11. The tithes of all those vegetables that have lately been introduced into England, such as hops, madder, and woad, are deemed small tithes. . when due. 11 Rep. 15a, 12. Predial tithes, consisting of the immediate How and produce of land, are due of common right; it being a principle of the common law, that all lands ought to pay tithes. But mixed and personal tithes are only due by custom; therefore where they have not been usually paid, they are not demandable. 13. It was formerly held, that tithes were only payable of such things as yield an annual increase; but this rule has been deviated from, in the case of some vegetables, which produce a crop only every second or third year; and in the case of underwood or coppice, which is only cut once in seven or ten years. 14. It was also formerly held, that tithe was only 2 Inst. 651. due once in the same year; but it has been deter- Bunb. 10. mined, in two modern cases, that if divers crops are grown on the same land, in the same year, tithe is payable of each of them. 314. 15. It has also been resolved in several cases, 2 Gwill. 562. that no tithe is due of that which produces another VOL. III. E Of what dial Tithes titheable substance: but this rule has also been deviated from in modern times. 16. With respect to predial tithes, it is a general Things pre- rule, Quod quicquid oritur ex prædio ejusdem sunt prædiales. Of these predial things, some are fructus 1 Gwill. 429. naturales, which grow naturally, without the industry are due. Corn and other Grain. 2 Inst. 651. 12 Mod. 235. Gwill. 477. 562. Gwill. 477. Id. 1438. Austin v. Nicholas, Nicholas or labour of man; as grass, &c.: and others are fructus artificiales vel industriales; to the growth of which, industry and labour are requisite; as corn, &c. The tithes of these are called decima provenientes, and decimæ fixa; because they arise ex fructibus stirpis in terra fixœ. 17. Corn is a predial great tithe, of which the tenth cock, shock, or sheaf, is due; unless where the custom of the place is otherwise. But no tithe is due for the rakings of corn involuntarily scattered, unless where the rakings are of great value, or are left on the land covinously; in which cases tithe is payable for them. 18. It is laid down, that no tithe is payable for stubble 1st, Because the corn is titheable, which is the principal, and the stubble is of no value; 2d, Because, in the case of stubble, there is no second renewing. And in'a subsequent case, it was held, that stubble used partly for fodder, and partly for manure, was not titheable; the whole of it being used in husbandry. But that this did not extend to a farmer who left an unusual quantity of stubble, in order to make a fraudulent profit of it. 19. Every other species of grain, such as beans, Gwill. 615. peas, &c., cultivated for sale, are titheable; and whether they are set, drilled, sown, or planted in rows, in a garden-like manner, they are small tithes : but in some cases peas and beans have been considered as a great tithe. v. Elliot, Bunb. 19. 20. Tares and vetches are titheable, unless they Bunb. 279. are cut green, and given as food to milch kine, and horses employed in husbandry. Cro. Ja. 47. 21. Hay is subject to the payment of tithe, not- Hay. withstanding beasts of the plough or pail, or sheep, 9 Vin. Ab. 13, are fed therewith; it was also formerly held, that a right to tithe of hay accrues upon the mowing of the grass; and that the application of it, either while it was in grass, or after it was made into hay, to feeding beasts of the plough or pail, did not take away the right to tithe. v. Wells, I 22. In a subsequent case, however, it is laid down, Crawley that if a person cuts grass, and while it is in the Roll. Ab. swarth, carries it, and feeds his plough cattle there- 645. with, not having sufficient sustenance for them other- Howse, wise, no tithe is due thereof. Collyer v. Anst. 481. 23. It is laid down in several cases, that tithe is not due of aftermath, because it was formerly held, that tithe could only be due once in the same year, from the same ground. But in 33 Cha. II. the Court Margetts v. Butcher, of Exchequer was of opinion, that, of common right, Gwill. 531. tithes of aftermath, or of the after-crop of grass mowed, there being no prescription or custom against, or in discharge of the same, ought to be paid. And Doctor Burn says, the modern determinations have been, that the aftermath of meadow is part of the increase of the same year, and consequently titheable. 24. Clover, saintfoin, and ryegrass, being con- Gwill. 530. sidered as a species of hay, are titheable; and a Wallis second crop of clover is titheable as well as the first. v. Pain, The tithe of this species of hay belongs to the person entitled to the tithe of common hay, and is therefore a great tithe but no tithe is due of clover or vetches Hayes v. cut green, and given to cattle used in husbandry. : 584. Gwill. 755. Dowse, Gwill. 679. Vid. id. 1504. Underwood. 2 Inst. 642. 3 Rep. 12. Soby v. Molins. 2 Inst. 643. Walton v. 25. By the statute 45 Edw. III. c. 3. it was enacted, that great wood of the age of 20, 30, or 40 years, or upwards, should not be titheable; but that sylva cædua, or underwood, should be titheable. 26. Lord Coke says, two doubts arose on the construction of this act. First, what should be said great wood. The answer was, that in this act the word grosse signified such wood as had been, or was, either by the common law, or custom of the country, timber; for the act did not extend to other woods, that had not been, or would not serve for timber; though they were of the greatness or bigness of timber. So that oak, ash, and elm were included within the words great wood: and so was beech, horsebuck, and hornbeam; because they served for building or reparation of houses, mills, cottages, &c.; contrary to the opinion of Plowden, 470, which the Conrt, upon deliberate advice, held not to be law. 27. Secondly, of what age those grosse or timber trees should be. The statute resolved this doubt in these words, "great wood of the age of 20 years or upwards:" which point was also declaratory of the common law. 28. Tithe is in general due of beech, birch, hazel, willow, sallow, alder, maple, and white-thorn trees, and of all fruit trees, of whatever age they are; because the wood of these trees is not usually employed as timber. But if any of these trees have been used as timber, they are not titheable. 29. In a case where tithe was demanded of beech of above twenty years growth, Lord Hardwicke said, this depended on the question of fact, whether beech was timber by the custom of the country; and that the issue should be, whether, by the custom, beech |