« PreviousContinue »
value of the grass, not to the value of the improve ment of the animal.
$ 7. Personal 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.
S 8. Again, tithes are divided into great and small. Where the tithe of a thing is magnus ecclefia proventus, Gwill. 429. it is reckoned among the great tithes; but, where it is parvus ecclefiæ proventus, it is considered as a small tithe.
S 9. 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 tithe : and the predial tithes of other less valuable vegetables, together with mixed and personal tithes, are called Small Tithes.
$ 10. Formerly, it was doubtful, whether the dif- Norton v.
Clark, tinction between great and small tithes, arose from the Gwill
. 428. 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. determined, that the tithe of potatoes, although sown Gwill. 777.
Wyatt, in great quantities in common fields, was a small tithe.
Sims v. Ben-
$ 11. This doctrine has been confirmed by a deter. mination of Lord Keeper Henley, who held, that tithes are by law denominated, and adjudged to be, great or small, 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 those vegetables, which have lately been introduced into England, such as hops, madder, and woad, are deemed to be small tithes.
$ 13. Predial tithes, consisting of the immediate iz 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 personal tithes are only due by custom : and, therefore, where they have not been usually paid, they are not demandable.
§ 14. Formerly, it was 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.
§ 15. It was also formerly held, that tithe was only due once in the same year; but it has been held in two modern cases, that, if divers crops are grown on the same land in the same year, tithe is payable of each crop.
Bunb. 10. 314
§ 16. It
$ 16. It has also been established in many instances, that no tithe is due of that which produces another 2 Gwill. g62. titheable substance; but this rule has also been deviated from in several cases.
$ 17. With respect to predial tithes, it is a general of what rule, Quod quicquid oritur ex prædio, decima ejufdem dial Tithes
Things Presunt prædiales : and, of these predial things, some are are due.
i Gwill. 429. fructus naturales, which grow naturally without the industry or labour of man, as grass, fruit, herbs, &c.: and others are fructus artificiales, vel industriales, to the growth of which industry and labour are requisite, as corn, &c.; and the tithes of these are called decimæ provenientes, and decima fixæ, because they arise ex fructibus ftirpis in terra fixæ.
§ 18. Corn is a predial great tithe, of which the tenth shock, cock, or sheaf, is due to the rector, unless where the custom of the place is otherwise.
$ 19. Tithe is not due from the rakings of corn, 1 Inft. 651. involuntarily scattered; but, where the rakings are of Gwill. 477:
562. 12 Mod. great value, or if they are left on the land covinoully, 235. tithe shall be paid for them.
$ 20. It is laid down, that no tithe is payable for stubble; ift, Because the corn is titheable, which is Gwill. 477. 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 Id. 1438. stubble used partly for fodder and partly for manure, was not titheable, the whole of it being used in hul
bandry ; which was not the case of a farmer, leaving an unusual quantity of stubble in order to make a fraudulent profit of it,
Austin v. Nicholas, Gwill. 615 Nicholas v. Elliott, Bunb. 19. Gwill. 656. 876.
$ 21. Every other species of grain, such as beans, peas, cultivated for sale, are titheable; and, whether they are fet, drilled, sown, or planted in rows in a garden-like manner, they are small tithes : and the use of a plough instead of a spade, after a new improvement, makes no difference. But, in other cases, peas and beans have been considered as a great tithe.
$ 22. Tares and vetches are titheable, unless they are cut green, and given as food to milch kine, and horses employed in husbandry.
$ 23. Hay is subject 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 grass ; and that the subsequent 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.
$ 74. In a subsequent case, however, it is laid down, that if a person cuts grass, and, while it is in the swarthe, carries it and feeds his plough cattle therewith, not having sufficient sustenance for them other. wise, tithe is not due thereof.
§ 25. In
$ 25. In a much later case, the court of exchequer Hayes v.
Dowse, seemed to be of opinion that tithe is not due of vetches or clover, cut green and given to cattle used in huf- Vide Id.
1504 bandry. And the law is so clear, that grass newly cut and eaten by agricultural cattle, is not titheable; that Collyer v.
Howse, in a recent case, the bill as to this point, was dismissed
Anstr. 481. with cofts.
$ 26. It is laid down in several cases, that tithe is not due of aftermath; because tithe can only be due once in the same year from the same ground; but, in 33 Cha. 2. the court of exchequer was of opinion, Margetts v. that of common right tithes of aftermath, or of the Gwill. 531. after crop of grass mowed, there being no prescription or custom against or in discharge of the fame, ought to be paid. And Doctor Burn says, that the modern determinations have been, that the aftermath of mea. dows is part of the increase of the same year, and consequently titheable.
$ 27. Clover, saintfoin, and rye grass, being con. sidered as a species of hay, are titheable ; and a second Id. 584. crop of clover is titheable, as well as the first : this Wallis v.
Pain, species of hay belongs to the person entitled to the Com. R. 633. tiche of common hay, and is therefore a great tithe,
$ 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, should not be titheable; but that fylva cedua or underwood should be titheable.