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lambs, kids, pigs, &c. And the time of payment this tithe is, when the animals are weaned, and able to live without the dam; unless the custom of the place be otherwise.
$ 54. The wool of fheep and lambs is another mixed tithe it is de jure due at the time it is clipped; but, by prescription, it may be fet out altogether at another time.
3 Burn 467.
§ 55. Milk and cheese are titheable; but, where 3 Burn 476. tithe-milk is paid in kind, no tithe-cheefe is due: and, where tithe cheese is paid in kind, no tithe-milk is due.
§ 56. By the ftatute 2 and 3 Edw. 6. c. 13. it is enacted, that every perfon exercising merchandize, bargaining and felling, clothing, handicraft or other art or faculty, who had within 40 years preceding paid personal tithes, fhould pay the tenth part of his clear gains, after deducting all charges and expences, except day-labourers.
of what Things perfonal Tithes are due.
§ 57. It was formerly held that, in confequence of Gwill. 430. this ftatute, the fees of a lawyer, phyfician, attorney,
r. and a man's falary, were titheable. But it was fettled, that perfonal tithes were only payable per juftum poffefforem: and, therefore, tithes were not to be paid of a harlot's hire, or of gains made by robbery, or other illegal courses.
3 Eccl. Law, 474.
are not tithe
2 Inft. 651.
Watf. c. 46.
2 Inft. 655.
3 Burn 393.
2 Inft. 651.
Dr. Burn obferves, that perfonal tithes are now fcarce any where paid, unless for mills, and fish caught at fea.
§ 58. There are several things which are not titheable by common right, though, in fome places, they may be titheable by custom.
§ 59. No tithes are payable for quarries of stone or flate, nor for mines of tin, lead, coal, lime, chalk, marle, or the like for these are of the fubftance of the earth, and are not an annual produce.
60. Houfes are not titheable at common law, for the fame reason; but, by custom, tithe is in fome towns payable for houfes, in a proportion to the rent referved for them. And, in the city of London, tithes are payable for houfes by act of parliament.
§ 61. By the ftatute 2 and 3 Edw. 6. c. 13. alf barren heath and wafte ground, which fhall be improved and converted into arable, or meadow, fhalk not pay tithes, for feven years after fuch improvement.
§ 62. Foreft land is not titheable, provided it is in the hands of the king, or of his lefiee; but, if the foreft be difafforefted, and be within any parifh, then it becomes titheable.
§ 63. No tithe is due at common law for animals that are fera natura, fuch as deer, rabbits, &c.; but,
by the custom of many places, fome animals of this Gwill. 427. kind are titheable.
S 64. It is faid by Lord Coke, that, before the council of Lateran, which was held in the year 1180, every perfon was at liberty to pay his tithes to whatsoever church or monaftery he pleased: or, he might pay them into the hands of the bishop, who diftributed the revenues of his church among his diocefan clergy. But, when diocefes were divided into parishes, the tithes of each parish were allotted to its own particular minifter or rector: first, by common confent, or the appointment of the lord of each manor, and afterwards by the law.
§ 65. Where a perfon has any part of the tithes within the parish of another perfon, this is called a portion of tithes and thefe portions are fuppofed to be prior to the council of Lateran, when it was lawful for every one to distribute his tithes, or any portion thereof, to whatever church he pleased. And a portion of tithes did not become extinct, by vefting in the fame hands with the rectory.
§ 66. When the practice of appropriating advowfons to monafteries was introduced, the monks ufually deputed one of their own body to perform divine fervice in those parishes of which the fociety was rector, who was called the vicar: but, by feveral ftatutes, it was ordained that fuch vicar fhould be a fecular priest, and fufficiently endowed, at the discretion of the ordinary. The endowments were ufually of the small tithes, the greater
To whom due.
Dyer, 84 b.
2 Inft. 641.
2 Roll. R. 161.
Of re&orial and vicarial
I Burn 60.
greater or predial tithes being ftill referved for their own ufe; from whence arose a divifion of tithes into rectorial and vicarial.
§ 67. The rector or parfon is, primâ facie, entitled to all the tithes of the parifh: and, therefore, payment of the tithes to the parfon is a fufficient discharge against the vicar; because all tithes of common right belong to the parfon, and the vicarage is derived out of the parfonage; fo that no tithes belong de jure to the vicar, but only on an endowment, or by prefcription, which ought to be fhewn ex parte of the vicar. And the court cannot intend it: for the vicarage is a diminution or impairing of the parfonage, of which the court will not take notice, unless the parties fhew it.
§ 68. Where the vicar produces an endowment, then the fituation of the parties is reverted; the primâ facie title, to the extent of that endowment, is in favour of the vicar; and, if the rector would claim any of the articles, comprehended within the terms of it, the onus probandi is thrown upon him. In fuch cafe, it is incumbent on the rector to give fuch clear and cogent evidence of an ufage in the parifh in his favour, with refpect to the articles he would infift upon, as fhall narrow the terms of the endowment, and induce a prefumption, that the parties interested in the tithes. had come to a new agreement; that fome different arrangement had been made with respect to the diftribution of the tithes, between the date of the endowment and the difabling flatute of queen Elizabeth.
§ 69. It
69. It has been determined, that, if a vicar hath for a long time ufed to take particular tithes or profits, he shall not lose them, because the original endowment is produced, and they are not there. For, as every bishop had an indisputable right to augment vicarages, as there was occafion, and this, whether fuch right was referved in the endowment or not, the law will therefore prefume, that this addition was made by way of augmentation.
§ 70. The lofs of the original endowment is fup- Id. plied by prefcription; that is, if the vicar hath enjoyed any particular tithe for a long time, the law will presume that he was legally endowed with it; for the fame reason, that it prefumes fome tithes might have been added by way of augmentation which were not in the original endowment,
§ 71. Where lands do not lie within any parish, the Gwill. 501. tithes thereof are payable to the king.
$ 72. When the monafteries were diffolved, the Of Lay Impropriations. appropriation of the feveral benefices which belonged to the religious houfes, would, by the rules of the common law, have all become difappropriated, had not a clause been inserted in all the ftatutes, by which the mona teries were given to the crown, to veft fuch appropriate tithes in the king, in as ample a manner as the monafteries held the fame at the time of their diffolution.