27. Tithe is not due of sylva cædua used in making Anon. Gould. or repairing 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 Anon. Bunb. both due to 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 Gwill. 828. employed in the house for fuel: but there may be a custom, that it is not titheable.

v. Tryon,

Gwill. 327.

30. Where trees are considered as timber, either Walton by common law, or by custom, no tithes are to be paid of the lops or tops 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.

and madder.

31. Hemp and flax are titheable: but, to encourage Hemp, flax, the growth 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.

Hops.

sey, 8 Bro. Knight v. Hal

Parl. Ca. App.

Gwill. 606.

33. Turnips are also titheable when severed; though Turnips. 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.

Garden plants. 3 Burn. Eccl. Law 466.

Adams v.
Waller, Gwill.
1204.
Hewitt v.

Adams, 7 Bro.

Parl. Ca. 64.
Worrall v.

Miller, Mich.

1801.

Agistment tithe.

Sear v. Trin. Coll. Gwill. 1445.

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 Exchequer 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.

36. The profits arising from the agistment or pas turage 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. 1 Wils. R. 170. 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.

2 Inst. 651. Bunb. 446.

Thorp v
Bendlowes,
Gwill. 899.

Ayd v. Flower, Gwill. 613. contra Burn,

Vol. III. 448.

Bunb. 3.

38. Agistment tithe is not payable for horses kept for husbandry, saddle-horses, coach-horses, or other horses used merely for pleasure. But where coachhorses were used in carrying coals and manure into another parish, an agistment tithe was held to be pay able 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

448.

Crow v.
3

this tithe cannot be taken in kind, the person entitled Burn. Vol. III. 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.

Stodart,

Burn, 465.

Gwill. 714.

42. Mixed tithes consist of the tenth of the young Mixed tithes. 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 3 Burn. 468. tithe; 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 Idem, 476. milk is paid in kind, no tithe cheese is due; and where tithe cheese is paid in kind, no tithe milk is due.

tithes.

45. By the stat. 2 & 3 Edw. 6. c. 13. it is enacted, Personal that every person exercising merchandise, bargaining and selling, cloathing, 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.

Ecc. Law. Vol.

III. 474,

Vide 2 Bro.

46. It was formerly held that, in consequence of Gwill. 430. 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.

P. Ca. 446,7. d. 3.

What things

able, 2 Inst.

47. There are several things which are not titheable are not titheof common right, though in some places they are tithe- 651. able by custom. Thus no tithes are payable for quarries of stone or slate; nor for mines of tin, lead, coal, lime

Wats. c. 46.

Bunb. 102.

106.

3 Burn. 393.

2 Inst. 655.

Id. 651.

chalk, marl, or the like; for these are the substance of the earth, and not an annual produce.

48. Houses are not titheable at common law, for the same reason. But by custom tithe is, in some towns, due for houses, in proportion to the rent reserved for them. And in the city of 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, and within any parish, the lands then become titheable.

50. By the statute 2 & 3 Edw. 6. c. 16. all barren heath and waste ground which is improved, and converted into arable or meadow, shall not pay tithes for seven years after such improvement. (a)

51. No tithe is due at common law for animals that are feræ natura; such as deer, rabbits, &c. But, by Gwill. 427.840. the custom of many places, some animals of this kind are titheable.

To whom

able.

52. Before the council of Lateran, which was held tithes are pay- 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.

Rectors or parsons.

1 Inst. 300 a.

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.

(a) Land which is of a good natural quality shall pay tithe imme diately 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.

1 Burn. Ecc.

Law, 60.

54. When the practice of appropriating the advow- Vicars. sons of rectories or parsonages to monasteries was introduced; the monks usually deputed one of their own 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.

Austin, Gwill

Awdry v.

Smallcombe,

55. The rector or parson is prima facie entitled to Grene v. all the tithes of the parish; therefore payment of 226. 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 shewn 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. 56. Where the vicar produces an endowment, then the situation of the parties is reversed. The prima Gwill. 1526. 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.