Page images

value of the grafs, not to the value of the improvement of the animal.

§ 7. Perfonal tithes are the profits which arise from 2 Inft. 656. the labour and industry of man employing himself in some personal trade or employment, being the tenth of the clear profits after deducting all expences.

§ 8. Again, tithes are divided into great and small. Where the tithe of a thing is magnus ecclefiæ proventus, Gwill. 429. it is reckoned among the great tithes; but, where it is parvus ecclefia proventus, it is confidered as a small tithe.

§ 9. The tithes of corn, hay, and wood, are called $ Great Tithes, because they are in general of much greater value than any other fpecies of tithe: and the predial tithes of other lefs valuable vegetables, together with mixed and perfonal tithes, are called Small Tithes. (

§ 10. Formerly, it was doubtful, whether the diftinction 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 fettled, that the quantity of any particular vegetable raised in a parish, cannot alter the nature of the tithe: for, in that cafe, corn and hay might in fome parishes be a fmall tithe. And, in conformity to this principle, Lord Hardwicke determined, that the tithe of potatoes, although fown in great quantities in common fields, was a fmall tithe.

[blocks in formation]

Norton v.


Gwill. 428.

Smith v.

Gwill. 777


Sims v. Ben

nett, Gwill. 874. 7 Bro. Parl. Ca. 29.

§ 11. This doctrine has been confirmed by a determination of Lord Keeper Henley, who held, that tithes are by law denominated, and adjudged to be, great or fmall, according to the nature of the vegetable, and not from the mode of cultivation, or the use to which it was applied.

§ 12. The tithes of all thofe vegetables, which have lately been introduced into England, fuch as hops, madder, and woad, are deemed to be small tithes.

§ 13. Predial tithes, confifting of the immediate 11 Rep. 15 a. produce of the land, are due of common right; it being a principle of the common law, that all lands ought to pay tithes. But mixed and perfonal tithes are only due by custom: and, therefore, where they have not been usually paid, they are not demandable.

1 Inft. 651.

Bunb. 10. 314.

§ 14. Formerly, it was held, that tithes were only payable of fuch things as yield an annual increase: but this rule has been deviated from, in the cafe of some vegetables, which produce a crop only every fecond or third year; and in the cafe of underwood or coppice, which is only cut once in feven or ten years.

§ 15. It was alfo formerly held, that tithe was only due once in the fame year; but it has been held in two modern cafes, that, if divers crops are grown on the fame land in the fame year, tithe is payable of each


§ 16. It

§ 16. It has also been established in many inftances,

that no tithe is due of that which produces another 2 Gwill. g62. titheable substance; but this rule has also been deviated

from in feveral cafes.


dial Tithes are due.

I Gwill. 429.

§ 17. With refpect to predial tithes, it is a general of what rule, Quod quicquid oritur ex prædio, decima ejufdem funt prædiales: and, of these predial things, fome are fructus naturales, which grow naturally without the industry or labour of man, as grafs, fruit, herbs, &c.: and others are fructus artificiales, vel industriales, to the growth of which industry and labour are requifite, as corn, &c.; and the tithes of these are called decima provenientes, and decima fixe, because they arise ex fructibus ftirpis in terrá fixa.

§ 18. Corn is a predial great tithe, of which the tenth fhock, cock, or fheaf, is due to the rector, unless where the custom of the place is otherwise.

19. Tithe is not due from the rakings of corn, involuntarily scattered; but, where the rakings are of great value, or if they are left on the land covinoufly, tithe fhall be paid for them.

1 Inft. 651.

Gwill. 477562. 12 Mod.


§ 20. It is laid down, that no tithe is payable for ftubble; 1ft, Because the corn is titheable, which is Gwill. 477. the principal, and the stubble is of no value: 2d, Because, in the cafe of ftubble, there is no fecond renewing. And, in a subsequent case, it was held, that Id. 1438. ftubble ufed partly for fodder and partly for manure, was not titheable, the whole of it being used in huf


Austin v. Nicholas, Gwill. 615. Nicholas v. Elliott, Bunb. 19. Gwill. 656.


Bunb. 279.


Cro. Jac. 47.
9 Vin. Ab.
Selby v.
Bank, 12
Mod. 498.

Crawley v. Wells,

1 Roll. Abr. 645.

bandry; which was not the cafe of a farmer, leaving an unusual quantity of ftubble in order to make a fraudulent profit of it.

§ 21. Every other fpecies of grain, fuch as beans, peas, cultivated for fale, are titheable; and, whether they are fet, drilled, fown, or planted in rows in a garden-like manner, they are fmall tithes and the ufe of a plough instead of a spade, after a new improvement, makes no difference. But, in other cafes, peas and beans have been confidered as a great tithe.

§ 22. Tares and vetches are titheable, unless they are cut green, and given as food to milch kine, and horfes employed in husbandry.

§ 23. Hay is fubject to the payment of tithe, notwithstanding beasts of the plough or pail, or sheep are fed therewith. And it was formerly held, that a right to tithe of hay accrues upon the mowing of the grafs; and that the subsequent application of it, either while it was in grafs, or after it was made into hay, to feeding beasts of the plough or pail, did not take away the right to tithe.

§ 24. In a fubfequent cafe, however, it is laid down, that if a person cuts grafs, and, while it is in the fwarthe, carries it and feeds his plough cattle therewith, not having fufficient fuftenance for them otherwife, tithe is not due thereof.

§ 25. In

§ 25. In a much later cafe, the court of exchequer feemed to be of opinion that tithe is not due of vetches or clover, cut green and given to cattle ufed in huf. bandry. And the law is fo clear, that grafs newly cut and eaten by agricultural cattle, is not titheable; that in a recent cafe, the bill as to this point, was difmiffed with cofts.

§ 26. It is laid down in several cafes, that tithe is not due of aftermath; because tithe can only be due once in the fame year from the fame ground; but, in 33 Cha. 2. the court of exchequer was of opinion, that of common right tithes of aftermath, or of the after crop of grafs mowed, there being no prescription or custom against or in discharge of the fame, ought to be paid. And Doctor Burn fays, that the modern determinations have been, that the aftermath of meadows is part of the increase of the fame fequently titheable.

year, and con

§ 27. Clover, faintfoin, and rye grafs, being confidered as a species of hay, are titheable; and a fecond crop of clover is titheable, as well as the firft: this fpecies of hay belongs to the perfon entitled to the tithe of common hay, and is therefore a great tithe,

[blocks in formation]

§ 28. By the statute 45 Edw. 3. c. 3. it was enacted, Gwill. 3, 4, 5. that great wood of the age of 20, 30, or 40 years, or upwards, fhould not be titheable; but that fylva cadua or underwood fhould be titheable.


« PreviousContinue »