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3 Burn 467.
lambs, kids, pigs, &c. And the time of payment of this tithe is, when the animals are weaned, and able to live without the dam ; unless the custom of the place be otherwise.
S 54. The wool of sheep and lambs is another mixed tithe : it is de jure due at the time it is clipped ; but, by prescription, it may be set out altogether at another time.
S 55. Milk and cheese are titheable; but, where 3 Burn 476. tithe-milk is paid in kind, no tithe-cheese is due: and, where tithe cheese is paid in kind, no tithe-milk is due.
56. By the statute 2 and 3 Edw. 6. c. 13. it is of what enacted, that every person exercising merchandize, fonal Tithes bargaining and selling, clothing, handicraft or other are due. art or faculty, who had within 40 years preceding paid personal tithes, should pay the tenth part of his clear gains, after deducting all charges and expences, except day-labourers.
§ 57. It was formerly held that, in consequence of Gwill. 430. this statute, the fees of a lawyer, physician, attorney, &c. and a man's falary, were titheable. But it was settled, that personal tithes were only payable per juftum poßefforem : 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.
Dr. Burn observes, that personal tithes are now scarce
any where paid, unless for mills, and fish caught
What Things are not titheable.
S 58. There are several things which are not titheable by common right, though, in some places, they may be titheable by custom.
2 Inst. 651.
S 59. No tithes are payable for quarries of stone or sate, nor for mines of tin, lead, coal, lime, chalk, marle, or the like: for these are of the substance of the earth, and are not an annual produce.
Wail. c. 46.
60. Houses are not titheable at common law, for the same reason; but, by custom, tithe is in some towns payable for houses, in a proportion to the rent reserved for them. And, in the city of London, tithes are pay. able for houses by act of parliament.
Bunb. 102. 106.
2 Inst. 655
$ 61. By the statute 2 and 3 Edw. 6. c. 13. all barren heath and waste ground, which shall be improved and converted into arable, or meadow, shall not pay tithes, for seven years after such improvement.
3 Burn 393
$ 62. Forest land is not titheable, provided it is in the hands of the king, or of his lefiee; but, if the forest be disafforested, and be within any parish, then it becomes titheable.
2 Int. 651.
§ 63. No tithe is due at common law for animals that are feræ natura, such as deer, rabbits, &c. ; bu“, 63–66. by the custom of many places, some animals of this Gwill. 427. kind are titheable.
S 64. It is said by Lord Coke, that, before the coun- To whom
Tithes are cil of Lateran, which was held in the year 1180, every due. person was at liberty to pay his tithes to whatsoever 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. But, when dioceses were divided into parishes, the tithes of each parish were allotted to its own particular minister or rector: first, by common confent, or the appointment of the lord of each mancr, and afterwards by the law.
2 Inft. 641.
S 65. Where a person has any part of the tithes Dyer, 84 6. within the parish of another person, this is called a portion of tithes: and these portions are supposed 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
2 Roll. R. 161. tithes did not become extinct, by vesting in the same hands with the rectory.
66. When the practice of appropriating advowsons Of reĉorial to monasteries was introduced, the monks usually de- and vicarial
Tithes. puted one of their own body to perform divine service
I Burn 60. in those parishes of which the society was recor, who was called the vicar: but, by several statutes, it was ordained that such vicar should be a secular priest, and sufficiently endowed, at the discretion of the ordinary. The endowments were usually of the small tithes, the
greater or predial tithes being still reserved for their own use; from whence arose a division of tithes into rectorial and vicarial.
§ 67. The rector or parson is, primâ facie, entitled to all the tithes of the parish : and, therefore, payment of the tithes to the parson is a sufficient discharge against the vicar; because all tithes of common right belong to the parson, and the vicarage is derived out of the parfonage; so that no tithes belong de jure to the vicar, but only on an endowment, or by prescription, which ought to be shewn ex parte of the vicar. And the court cannot intend it: for the vicarage is a diminution or impairing of the parsonage, of which the court will not take notice, unless the parties shew it.
$ 68. Where the vicar produces an endowment, then the situation of the parties is reverted; the prima 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 such case, it is incumbent on the rector to give such clear and cogent evidence of an usage in the parish in his favour, with respect to the articles he would infist upon, as fhall narrow the terms of the endowment, and induce a presumption, that the parties interested in the tithes had come to a new agreement; that some different arrangement had been made with respect to the distribution of the tithes, between the date of the endowment and the disabling Natute of queen Elizabeth.
$ 69. It
. $69-72. § 69. It has been determined, that, if a vicar hath for a long time used 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 occasion, and this, whether such right was reserved in the endowment or not, the law will therefore presume, that this addition was made by way of augmentation,
$ 70. The loss of the original endowment is sup- Id. plied by prescription ; 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 same reason, that it presumes some 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.
S 72. When the monasteries were dissolved, the Of Lay Im
propriations. appropriation of the several benefices which belon red to the religious houses, would, by the rules of the cominon law, have all become disappropriated, had not a clause been inserted in all the statutes, by which the mona 'teries were given to the crown, to vest such appropriate tithes in the king, in as ample a manner as the monasteries held the same at the time of their dissolution,