growing within the parish of M. were, and had used to be deemed timber. or for Gwill. 562. v. Collins, 30. It is said by Lord Coke, that no tithes shall 2 Inst. 651. be paid of sylva cædua employed in hedging, fuel, or for maintenance of the plough or pail. subsequent case it was determined, that where a per- Croucher son cut down underwood, for the purpose of fencing Gwill, 1376. his own corn, it was not titheable. But a custom that underwood cut and used for fencing of corn generally, whereof tithes were payable, and not sold or otherwise disposed of, should be discharged from the payment of tithes, was held void. 31. This doctrine has however been contradicted Smith v. Williams, in a case where, on a bill brought for tithes of wood, Gwill. 608. the defendant said he felled yearly, at ten years growth, five acres of wood, worth 25 shillings an acre, which he used in mending his hedges, and upon his land; so was of no profit to him. But decreed to account. R. 93. 32. Tithe is not due of sylva cædua used in making Anon. Gould. or repairing carts or ploughs, to be employed in husbandry, in the parish wherein the wood grew; because by the use of carts and ploughs the tithe of other things is increased. 33. If the tithe of hops and the tithe of wood are Auon. Bunb. both due to the same person, tithe is not due of sylva cædua used in poling the hops; because the tithe of the hops is increased by the use of the poles. 20. 969. 34. By the common law, tithe is payable of wood Gwill. 828 employed in the house for fuel; but there may be a custom, that it is not titheable. v. Tryon, 35. Where trees are considered as timber, either Walton by common law, or by custom, no tithes are to be paid of the lops or tops of such trees, for whatever Gwill. 327. Hemp, Flax, &c. Hops and Ca. app. use they are cut: with this exception, that in certain peculiar cases, where a fraud is actually attempted, or from necessity to avoid fraud, they may be titheable. 36. Hemp and flax are titheable; but to encourage the growth of these articles, it is enacted by the stat. 11 & 12 Will. III. c. 16. that every person, who shall sow any hemp or flax shall pay to the parson, vicar, or impropriator yearly, the sum of five shillings, and no more, for every acre of hemp and flax so sown, before the same is carried off the ground, Madder is titheable in the same manner. 37. Hops are titheable, and accounted among small tithes the tenth of this vegetable is to be paid after they are picked, and before they are dried. 38. Turnips are also titheable when severed; Gwill. 606. though there be more crops than one in the year. In a bill for tithe of turnips, the defendant insisted that no tithe was due for turnips sown after corn the same year; and that he ought not to pay tithe for any crop or profit of arable land, the same year that the parson received tithe-corn from the same ground: but the tithe was decreed. 39. The profits arising from the agistment or pasturage of cattle are titheable of common right; because the grass that is eaten is titheable, and must have paid tithe, if cut when full grown. It is predial, because it arises immediately from the land. And in a modern case, it was held to, be a small tithe. 40. Agistment tithe is only payable for dry or barren cattle, that otherwise yield no profit to the parson, and not for cattle which are kept for the plough or pail, in the same parish; because the par son has tithe for them in another way. 41. Agistment tithe is not payable for horses kept for husbandry, saddle-horses, coach-horses, or other horses used merely for pleasure. But where coachhorses were used in carrying coals and manure into another parish, an agistment tithe was held to be payable for them. Thorp v. Bendlowes, Gwill. 899. Ayd v. Flower, 42. Meadow grounds which have paid tithe of hay, Gwill. 613. are not afterwards liable to an agistment tithe. contrà Burn, Vol. 3. 448. 43. Agistment tithe is payable by the occupier of the ground, not by the owner of the cattle; and as Bunb. 3. this tithe cannot be taken in kind, the person entitled Burn. Vol. 3. to it can only receive what it is valued at, according to the price paid for the keeping of different beasts. 448. Stodart, 44. An agistment tithe was held to be due for Crow v. turnips sown after corn, and not severed, but eaten 3 Burn, 465. by unprofitable cattle: though it was urged to be an Gwill. 714. improvement of the land, and that the parson had the benefit of it in the next year. 45. All garden herbs and plants, such as parsley, Gardens. sage, cabbage, &c., are titheable; and the same is a Law, 466. small tithe. But most commonly a sum of money is 3 Burn Ecc. payable in lieu of tithes of gardens, either by custom, or by agreement. 46. All fruits of trees are titheable; the tithe to Id. 466. be paid when they are gathered. If they are stolen, the parson as well as the owner shall bear the loss; but if the owner suffer a stranger to take his fruit, the tithe shall be answered. Adams v. 47. A claim was made in the year 1780, by the vicar of Kensington, to the tithe of hot-house plants. The Court of Exchequer was of opinion, that they Hewitt v. were titheable; on an appeal to the House of Lords, Adams, the case went off on another point. It has, however, been determined by the Court of Exchequer, in a 7 Bro. Parl. Ca. 64. Worrall v. Of what Tithes are subsequent case, that hot-house plants are not titheable. 48. Mixed tithes consist of the tenth of the young things mixed of cattle bred in the parish; such as calves, lambs, pigs, &c. and the time of payment of these is when the animals are weaned, and able to live without the dam unless the custom of the place be otherwise. due. 3 Burn, 468. Idem, 476. are due. 49. The wool of sheep and lambs is another mixed tithe; and is, de jure, due at the time it is clipped; but by prescription it may be set out altogether at another time. 50. Milk and cheese are titheable. But where tithe milk is paid in kind, no tithe cheese is due; and where tithe cheese is paid in kind, no tithe milk is due. Of what 51. By the stat. 2 & 3 Edw. VI. c. 13. it is enacted, Things personal Tithes that every person exercising merchandise, bargaining and selling, cloathing, handicraft, or other art or faculty, who had, within 40 years preceding, paid personal tithes, should pay for his personal tithes the tenth part of his clear gains; his charges and expences, according to his estate, condition, or degree, to be therein abated, allowed, and deducted. Gwill. 430, 52. It was formerly held, that in consequence of this statute, the fees of a lawyer, physician, attorney, and a man's salary, were titheable. But Doctor Burn observes, that personal tithes are now scarce any P.Ca. 446, 7. where paid, except for mills, and fish caught in the Ecc. Law. vol. 3.474. Vide 2 Bro. Id. 3. What Things are not titheable. 2 Inst. 651. sea. 53. There are several things which are not titheable by common right, though in some places they may be titheable by custom. Thus, no tithes are payable for quarries of stone or slate; nor for mines of tin, lead, coal, lime, chalk, marl, or the like. For these are of the substance of the earth, and not an annual produce. 54. Houses are not titheable at common law, for Wats. c. 46. the same reason. But by custom tithe is, in some towns, due for houses; in a proportion to the rent 106. reserved for them. And in the city of London, tithes Bunb. 102. are payable for houses by act of parliament. 55. Forest lands are not titheable, provided they are in the hands of the King or his lessee. But if 3 Burn. 393. a forest is disafforested, and within any parish, the lands then become titheable. 56. By the statute 2 & 3 Edw. VI. c. 16. all barren 2 Inst. 655. heath and waste ground which is improved, and converted into arable or meadow, shall not pay tithes for seven years after such improvement. 57. No tithe is due at common law for animals Id. 651. that are feræ naturæ; such as deer, rabbits, &c. But, by the custom of many places, some animals of this Gwill. 427. kind are titheable. 58. Before the council of Lateran, which was held in the year 1180, every person was at liberty to pay his tithes to whatever church or monastery he pleased; or he might pay them into the hands of the bishop, who distributed the revenues of his church among his diocesan clergy. When dioceses were divided into parishes, the tithes of each parish were allotted to its own particular minister, first by common consent, or appointment of the lord of the manor, and afterwards by law. 840. To whom payable. Parsons. 1 Inst. 300 a. 59. The tithes of each parish are therefore of Rectors or common right due to the parson thereof. And Lord Coke says, that persona impersonata, parson impersonee, is the rector that is in possession of the church parochial, jure ecclesiæ. |