called in the canon law prædium, whether it was arable, meadow, or pasture, the fruit or produce thereof is called predial. Nor is any allowance made for the trouble and expense of raising any species of vegetable which yields tithe. Mixed tithes are those which arise not immediately from the profit of the land; but from the produce and increase of animals nourished by the land. Personal tithes are the profits which arise from the labour and industry of man, in some trade or employment; being the tenth of the clear profits, after deducting all expenses. 7. Tithes are again divided into great and small. Where the tithe of any thing is magnus ecclesiæ proventus, it is reckoned among the great tithes; where it is parvus ecclesiæ proventus, it is reckoned among the small tithes. Thus the tithes of corn, hay, and wood, are great tithes, because they are in general of much greater value than any other species of tithes. The predial tithes of other less valuable vegetables, such as hops, potatoes, madder, woad, together with mixed and personal tithes, are small tithes. Gwill. 428. 8. It was formerly doubted whether the distinction between Norton v. Clark, 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 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 held, that the tithe Smith v. Wyatt, of potatoes, though sown in great quantities in common fields, was a small tithe. 9. This doctrine has been confirmed by a determination of Lord Henley, who held that tithes are by law denominated and adjudged to be great or small according to the nature of the vegetable; not from the mode of cultivation, or the use to which it was applied. Gwill. 777. Simms v. Ben nett, 7 Bro. Parl. Ca. 29. 1 Eden, 382. due. 10. Predial tithes, consisting of the immediate produce of the How and when land, are due of common right, it being a principle of law that 11 Rep. 15. a. all lands ought to pay tithes. But mixed and personal tithes are only due by custom; therefore, unless they have been usually paid, they are not demandable. 11. It was formerly 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 2 Inst. 651. Bunb. 10. 314. 2 Gwill. 562. Predial tithes. 1 Gwill. 429. Corn and other grain. 2 Inst. 651. only every second or third year; and in the case of underwood or coppice, which is only cut once in seven or ten years. 12. It was also formerly held that tithe was only due once in the same year but it has been determined in two modern cases, that if divers crops are grown on the same land, in the same year, tithe is payable of each of them. 13. It has also been resolved in several cases, that no tithe is due of that which produces another titheable substance: but this rule has also been deviated from in modern times. 14. With respect to predial tithes, it is a general rule, quod quicquid oritur ex prædio ejusdem sunt prædiales. Of these predial tithes, some are fructus naturales, which grow naturally, without the industry or labour of man, as grass, &c. and others are fructus artificiales vel industriales, to the growth of which industry and labour are requisite, as corn, &c. The tithes of these are called decima provenientes, and decimæ fixe, because they arise ex fructibus stirpis in terrâ fixæ. 15. Corn is a predial tithe, of which the tenth cock, shock, or sheaf is due to the parson, where the custom of the place is not otherwise. But no tithe is due for the rakings of corn involunGwill. 477.562. tarily scattered, unless where the rakings are of great value, or are left on the land, covinously, in which cases tithe is payable for them. 12 Mod. 235. 6 Bar. & Cress. 543. Gwill. 477. Id. 1438. Austin v. Nicholas, Gwill. v. Ellliot, Bunb. 16. It is laid down that no tithe is payable for stubble :- 1st, Because the corn is titheable, which is 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 stubble used partly for fodder, and partly for manure, was not titheable; the whole of it being used in husbandry. But that this did not extend to a farmer, who left an unusual quantity of stubble, in order to make a fraudulent profit of it. 17. Every other species of grain, such as beans, peas, &c., 615. Nicholas cultivated for sale, are titheable; and whether they are set, drilled, sown, or planted in rows; in a garden-like manner, they are small tithes; but in some cases peas and beans have been considered as a great tithe. 19. Hay. Cro. Jac. 47. 18. Hay is subject to the payment of tithe, notwithstanding 9 Vin. Ab. 13. that beasts of the plough or pail, or sheep, are fed therewith. It was also formerly held that a right to the tithe of hay accrued upon the mowing of the grass, and that the application of it, either while it was in grass; or after it was made into hay, to the feeding of beasts of the plough or pail, did not take away the right to tithe. But it has been held in subsequent cases that if a person cuts grass, and while it is in the swarth carries it and feeds his plough cattle therewith, not having sufficient sustenance for them otherwise, no tithe is due thereof. (a) Margetts v. Butcher, Gwill. 531. 19. It is laid down in several cases that tithe is not due of aftermath, because it was formerly held, that tithe could only be due once in the same year, from the same 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 grass mowed, there being no prescription or custom against or in discharge of the same, ought to be paid. And Doctor Burn says, the modern determinations have been that the aftermath of meadow is part of the increase of the same year, and consequently titheable. 20. Clover, saintfoin, and ryegrass, being considered as a Wallis v. Pain, species of hay, are titheable. A second crop of clover is also titheable, as well as the first; and the tithe of this kind of hay belongs to the person entitled to that of common hay, and is therefore a great tithe. Tares and vetches are also titheable, unless they are cut green, and given as food to milch kine, and horses employed in husbandry. Gwill. 755. Bunb. 279. Gwill. 679. 1504. 21. By the stat. 45 Edw. 3. c. 3. it was enacted that great or Underwood. grosse wood of the age of twenty, thirty, or forty years, or upwards, should not be titheable; but that sylva cædua, or underwood, should be titheable. Lord Coke says two doubts arose on 2 lnst. 642. the construction of this act; first, what should be said great 3 Rep. 12. wood, to which the answer was, that in this act the word grosse signified such wood as had been, or was, either by common law, or custom of the country, timber; for the act did not extend to Tit. 3. c. 2. other woods, that had not been, or would not serve for timber, though they were of the greatness or bigness of timber. So that oak, ash, and elm, were included within the words great wood; and so was beech, horsebuck, and hornbeam; because they served for building or reparation of houses, mills, cottages, &c., contrary to the opinion of Plowden, 470, which the Court, upon Soby v. Molins. (a) [The law does not dispense with the tithe of the rakings of hay as it does of corn. Bearblock v. Tyler, Jacob, C. R. 560. See also 3 Sim. 316.] 2 Inst. 643. Walton v. Tryon, Gwill. 827. 2 Inst. 651. Gwill. 562. Croucher v. Collins, Gwill. 1576. Smith v. Ford v. Racster, 4 M. & S. 130. (a) Anon. Gould. deliberate advice, held not to be law. Secondly, of what age those grosse or timber trees should be; the statute resolved this doubt in these words :-"Great wood of the age of twenty years or upwards." Which point was also declaratory of the common law. 22. Tithe is in general due of beech, birch, hazel, willow, sallow, alder, maple, and white-thorn trees, and of all fruit trees, of whatever age they are; because the wood of these trees is not usually employed as timber. But if any of these trees have been used as timber, they are not titheable. 23. In a case where tithe was demanded of beech of above twenty years' growth, Lord Hardwicke said, this depended on the question of fact, whether beech was timber by the custom of the country; and that the issue should be whether, by the custom, beech growing within the parish of M. were, and had used to be deemed timber. 24. It is said by Lord Coke, that no tithes shall be paid of sylva cadua employed in hedging, or for fuel, or for maintenance of the plough or pail. In a subsequent case it was determined, that where a person cut down underwood, for the purpose of fencing his own corn, it was not titheable. But a custom that underwood cut and used for fencing of corn generally, whereof tithes were payable, and not sold or otherwise disposed of, should be discharged from the payment of tithes, was held void. 25. This doctrine has however been contradicted in a case where, on a bill brought for tithes of wood, the defendant said he felled yearly, at ten years' growth, five acres of wood, worth twenty-five shillings an acre, which he used in mending his hedges, and upon his land; so was of no profit to him. But decreed to account. 26. Oak wood of more than twenty years' standing, not growing from acorns, but from old stools, which belonged originally to trees which had stood more than twenty years, were held not to be so clearly entitled by stat. 45 Edw. 3. c. 3. to exemption from tithe, as to make a verdict which subjected them to tithe a wrong verdict. 27. Tithe is not due of sylva cædua used in making or repair (a) See Aubrey v. Fisher, 10 East. 446. and Rex v. Inhabitants of Merfield, 10 East. 219. Rex v. Inhabitants of Ferrybridge, 1 B. & C. 375. ing carts or ploughs, to be employed in husbandry, in the parish wherein the wood grew; because by the use of carts and ploughs the tithe of other things is increased. 20. 28. If the tithe of hops and the tithe of wood are both due to Anon. Bunb. the same person, tithe is not due of sylva cædua used in poling the hops; because the tithe of the hops is increased by the use of the poles. 969. 29. By the common law, tithe is payable of wood employed Gwill. 828. in the house for fuel: but there may be a custom, that it is not titheable. Tryon, Gwill. 30. Where trees are considered as timber, either by common Walton v. law, or by custom, no tithes are to be paid of the lops or tops 327. of such trees, for whatever use they are cut; with this exception, that in certain peculiar cases, where a fraud is actually attempted, or from necessity to avoid fraud, they may be titheable. (a) madder. 31. Hemp and flax are titheable: but, to encourage the growth Hemp, flax, and of these articles, it is enacted by the stat. 11 & 12 Will. 3. c. 16. that every person who shall sow any hemp or flax shall pay to the parson, vicar, or impropriator yearly, the sum of five shillings, and no more, for every acre of hemp and flax so sown, before the same is carried off the ground. Madder is titheable in the same manner. 32. Hops are titheable, and accounted among small tithes: the tenth of this vegetable is to be paid after they are picked, and before they are dried. 33. Turnips are also titheable when severed; though there be more crops than one in the year. Thus, in a bill for tithe of turnips, the defendant insisted that no tithe was due for turnips sown after corn the same year; and that he ought not to pay tithe for any crop or profit of arable land, the same year that the parson received tithe-corn from the same ground: but the tithe was decreed. [The tithe of potatoes arises only when they are dug up, and not on the preparatory step of “ boughing out." Bearblock v. Hancock, 2 Car. & Pay. N. P. 425; see also 2 Hagg. 495.] (a) [In Chichester v. Sheldon, 1 Turn. 245. it was decided that wood springing from the roots or stools of trees is titheable, and neither its own age nor the age of the trees from the roots or stools of which it sprung, will exempt it. See also 1 Yo. & J. 262. Willis v. Stone.] |
