Garden plants. 2 Yo. & Jer. 575. Adams v. 1204. Hewitt v. 34. All garden plants and herbs, such as cabbage, parsley, sage, &c. are titheable; and the same is a small tithe. But most commonly a sum of money is payable in lieu of tithe of gardens, either by custom, or by agreement. All fruits of trees are also titheable; and the tithe to be paid when they are gathered. If they are stolen, the parson, as well as the owner, must bear the loss. But if the owner suffers a stranger to take his fruit, the tithe shall be answered. 35. A claim was made in the year 1780, by the vicar of Kensington, to the tithe of hot-house plants. The Court of ExAdams, 7 Bro. chequer was of opinion that they were titheable; on an appeal to the House of Lords, the case went off on another point. It has, however, been determined by the Court of Exchequer, in a subsequent case, that hot-house plants are not titheable. Parl. Ca. 64. Agistment tithe. Sear v. Trin. Coll. Gwill. 1445. 1 Wils. R. 170. 2 Inst. 651. Bunb. 446. Thorp v. Ayd v. Flower, Gwill. 613. contra Burn, Vol. III. 448. Bunb. 3. Burn. Vol. III. 448. Crow v. Stodart, 3 Burn, 465. Gwill. 714. 36. The profits arising from the agistment or pasturage of cattle are titheable of common right; because the grass eaten by such cattle is titheable, and must have paid tithe, if cut when full grown. It is predial, because it arises immediately from the land. And in a modern case it was held to be a small tithe. 37. Agistment tithe is only payable for dry or barren cattle, that otherwise yield no profit to the parson; and not for cattle which are kept for the plough or pail, in the same parish; because the parson has tithe for them in another way. 38. Agistment tithe is not payable for horses kept for husbandry, saddle-horses, coach-horses, or other horses used merely for pleasure. But where coach-horses were used in carrying coals and manure into another parish, an agistment tithe was held to be payable for them. 39. Meadow grounds, which have paid tithe of hay are not afterwards liable to an agistment tithe. 40. Agistment tithe is payable by the occupier of the ground, not by the owner of the cattle; and as this tithe cannot be taken in kind, the person entitled to it can only receive what it is valued at, according to the price paid for the keeping of different beasts. 41. An agistment tithe was held to be due for turnips sown after corn, and not severed, but eaten by unprofitable cattle; though it was urged to be an improvement of the land, and that the parson had the benefit of it in the next year. 42. Mixed tithes consist of the tenth of the young cattle bred in the parish; such as calves, lambs, pigs, &c.; and the time of payment of these is, when the animals are weaned, and able to live without the dam; unless the custom of the place be otherwise. 43. The wool of sheep and lambs is another mixed tithe; 3 Burn. 468. and is, de jure, due at the time it is clipped: but by prescription it may be set out altogether at another time. 44. Milk and cheese are titheable. But where tithe milk is Idem, 476. paid in kind, no tithe cheese is due ; and where tithe cheese is paid in kind, no tithe milk is due. 45. By the stat. 2 & 3 Edw. 6. c. 13. it is enacted, that every Personal tithes. person exercising merchandise, bargaining and selling, clothing, handicraft, or other art or faculty, who had, within forty years preceding, paid personal tithes, should pay for his personal tithes the tenth part of his clear gains; his charges and expenses, according to his estate, condition, or degree, to be therein abated, allowed, and deducted. 46. It was formerly held that, in consequence of this statute, the fees of a lawyer, physician, attorney, and a man's salary, were titheable. But Doctor Burn observes, that personal tithes are now scarce any where paid, except for mills, and fish caught in the sea. 47. There are several things which are not titheable of common right, though in some places they are titheable by custom. Thus no tithes are payable for quarries of stone or slate; nor for mines of tin, lead, coal, lime, chalk, marl, or the like; for these are the substance of the earth, and not an annual produce; [but any of these may, it would seem, be titheable by custom, lead in Derbyshire, and tin in Devonshire and Cornwall. So also tithes may be due by custom of white salt.] as 48. Houses are not titheable at common law, for the same rea Gwill. 430. Ecc. Law. Vol. P. Ca. 446. 295. 3 Ves. & Bea. 71. What things are not tithe able. 2 Inst. 651. Toller on Tithes, Ab. 642. Dismes (S) 7, 8. 151. 1 Rol. Wats. c. 46. son. But by custom tithe is, in some towns, due for houses, in proportion to the rent reserved for them. And in the city of Bunb. 102.106. London tithes are payable for houses by act of parliament. 49. Forest lands are not titheable, provided they are in the hands of the king or his lessee. But if a forest is disafforested, 3 Burn. 393. and within any parish, the lands then become titheable. 50. By the statute 2 & 3 Edw. 6. c. 16. all barren heath and 2 Inst. 655. waste ground which is improved, and converted into arable or Id. 651. meadow, shall not pay tithes for seven years after such improvement. (a) 51. No tithe is due at common law for animals that are fere Gwill.427.840. natura; such as deer, rabbits, &c. But, by the custom of many places, some animals of this kind are titheable. To whom tithes are payable. Rectors or parsons. 1 Inst. 300.a. 1 Yo. 76. 125. Vicars. 1 Burn. Ecc. Law, 60. Grene v. Austin, Gwill. 226. 52. Before the council of Lateran, which was held in the year 1180, every person was at liberty to pay his tithes to whatever 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, first by common consent, or appointment of the lord of the manor, and afterwards by law. 53. The tithes of each parish are therefore of common right due to the rector or parson thereof. And Lord Coke says, that persona impersonata, parson imparsonee, is the rector that is in possession of the church parochial, jure ecclesiæ. 54. When the practice of appropriating the advowsons of rectories or parsonages to monasteries was introduced, the monks usually deputed one of their body to perform divine service and other necessary duties in those parishes, of which the society were rectors; who were called vicars. But by several statutes it was ordered that such vicars should be secular priests, and sufficiently endowed, at the discretion of the ordinary. The endowments were usually of the small tithes, the greater tithes being still reserved to the monastery; from whence arose a new division of tithes into rectorial and vicarial. 55. The rector or parson is primâ facie entitled to all the tithes of the parish; therefore payment of tithes to the rector is a sufficient discharge against the vicar; because all tithes of common right belong to the rector, and the vicarage is derived out of the parsonage. So that no tithes belong de jure to the vicar, but only on an endowment, or by prescription, which ought to be shown on the part 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. (a) Land which is of a good natural quality shall pay tithe immediately notwithstanding this statute, although the expense of bringing it into cultivation exceeds the return in the several first years. Warwick v. Collins, 5 M. and S. 166.—Note to former edition. 56. [The vicar's title depends wholly upon the endowment or upon prescription and usage.] Where the vicar produces an endowment, then the situation of the parties is reversed. 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 this 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 insist upon, as shall 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 statute of Queen Elizabeth. 57. It has been determined that if a vicar hath for a long Bunb. 74. 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 every bishop having 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. 58. The loss of the original endowment is supplied by pre- Idem. scription; that is, if the vicar hath enjoyed any particular tithe for a long time, the law will presume that he was legally endow 4 Pri. 156. 190. ed of it; for the same reason that it presumes some tithes might 4 Bli. N.S. 144. have been added by way of augmentation, which were not in the original endowment. 59. It sometimes happens that one person has a certain part Portionists. of the tithes within the parish of another, which is called a por- 2.641. 2 Rep. 44 b. tion of tithes; and the person entitled to it is called a portionist.(b) These portions are supposed to be prior to the council of Lateran, 3 Bli. 224. when it was lawful for every person to distribute his tithes, or any portion thereof, to whatever church he pleased. And a portion of tithes does not become extinct by vesting in the same (b) [The title of a portioner must be either proved by shewing the grant under which he claims, or if it have been lost, by that species of evidence which would enable the Court to presume that such a grant once existed. Actual pernancy for a long period ought to appear. Woolley v. Platt, M'Clel. 473. Lewis v. Bridgman, 3 Sim. 316.] Bp. of Carlisle v. 657. Lords of manors. 2 Rep. 45 a. Lay impropri ators. 3 Salk. 377. Wats. 509. Oxenden v. Skinner, infra. 1 M'Cl. 473. 1 Inst. 159 a. Crathorne v. hands with the rectory. [And an incumbent of one parish is capable of holding tithes in another as a portionist.] 60. In those places which are not within any parish, as in forests and the like, the king is entitled to the tithes, because he is not a mere layman, but persona mixta. This point was resolved in parliament, 5 Edw. 3. in a suit between the Crown and the Bishop of Carlisle, who claimed the tithes of the forest of Inglewood. 61. Lords of manors may be entitled to the tithes of the manor, by prescription. For in such case it will be supposed that the lord was seised of all the lands comprised within the manor, before the tenancies were derived thereout; and then, by composition or other lawful means, the lord acquired the tithes, paying a certain pension to the parson. 62. When the monasteries were dissolved by King Henry VIII., the appropriation of the several benefices which belonged to them would by the rules of the common law have ceased; and they would have become disappropriated, had not a clause been inserted in all the statutes, by which the monasteries were given to the crown, to vest such appropriated benefices in the king, in as ample a manner as the monasteries had held them, at the time of their dissolution. 63. Almost all these appropriated benefices have been granted by the crown to lay persons, and are now held by their descendants, or by those who have purchased them from such grantees or their descendants. These are called lay impropriators. 64. The grants made by the crown of this kind of property are either of a rectory or parsonage, which comprises the parish church with all its rights, glebes, tithes and other profits whatsoever; or else of the tithes of a particular tract of land. 65. Where a portion of tithes was vested in the crown, and afterwards granted to a layman, he acquired the same right to it as the spiritual person in whom it was originally vested. Portions of tithes were also sometimes granted by religions corporations to laymen, to whom they now belong under that title. 66. By the statute 32 Hen. 8. c. 7. s. 7. it is enacted that all persons having any estate of inheritance, freehold, term, right, or interest, of, in, or to any parsonage, vicarage, portion, pension, tithes, oblations, or other ecclesiastical or spiritual profits, which |