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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.

§ 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.

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 cheefe 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 exercifing 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 per

fonal Tithes are due.

§ 57. It was formerly held that, in confequence of Gwill. 430. $ this statute, the fees of a lawyer, phyfician, attorney,

&c. 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.

VOL. III.

F

Dr.

3 Eccl. Law, 474.

What Things

are not tithe

able.

2 Inft. 651.

Watf. c. 46.

Bunb. 102.

106.

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 feveral 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 flone 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 reafon; 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 pay able for houfes by act of parliament.

§ 61. By the ftatute 2 and 3 Edw. 6. c. 13. all 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 lefee; 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, such as deer, rabbits, &c.; but,

by the custom of many places, fome animals of this Gwill. 427. kind are titheable.

§ 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 minister or rector: firft, by common confent, or the appointment of the lord of each manor, and afterwards by the law.

840.

To whom due.

Tithes are

§ 65. Where a perfon has any part of the tithes Dyer, 84 b. 2 Inft. 641. 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 several statutes, it was ordained that fuch vicar fhould be a fecular priest, and fufficiently endowed, at the difcretion of the ordinary. The endowments were ufually of the fmall tithes, the greater

F 2

2 Roll. R. 161.

Of re&orial and vicarial

Tithes.

I Burn 60.

Grene v.
Austin,
Gwill. 226.

Awdry v.
Smallcombe,
Gwill. 1526.

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 parson 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; so 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 primá 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 refpect to the diftribution of the tithes, between the date of the endowment and the disabling 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 fhall 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,

Burn 74.

$ 70. The lofs of the original endowment is fup- Id. plied by prescription; that is, if the vicar hath enjoyed any particular tithe for a long time, the law will prefume 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 appropriation of the feveral benefices which belon red to the religious houfes, would, by the rules of the common law, have all become difappropriated, had not a clause been inferted in all the ftatutes, by which the monasteries were given to the crown, to veft fuch appropriated tithes in the king, in as ample a manner as the monafteries held the fame at the time of their diffolution.

Of Lay Im

propriations.

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