Abridgment of Ecclesiastical Laws, Treatise · Chapter 32 · Part 3
C
CAlves are computed among the Mixt Tithes, which with Colts, Kidds, &c. are within the number of Tithes in kind; the Parſon muſt have the Tenth thereof whenever it comes, if there be no Cuſtome to the contrary; for it is a good Modus Decimandi for Tithes of Calves, to pay a Calf for Tithe, if he hath Seven in one year; and if under Seven, then to pay a halfpeny for every Calf for Tithes; and if he fell any Calf, he ſhall pay the Tenth part of the priceuMich. 14 Jac B. R. Lee and Collin's Caſe.. Calves (as alſo Lambs) are Tithable when they are Weanable, and able to live without the Dam; if they be ſold, the Parſon hath for the moſt part the Tenth peny in moſt places, unleſs ſomething be in the Cuſtome againſt it: Alſo the Tithe of Calves, Colts, &c. is to be apportioned with reſpect to the places where they were engendred, brought forth, and nouriſhed; but Cuſtome muſt prevail.
Cattel kept only for the Plough and Pail pay no Tithe: alſo no Tithe ſhall be paid for the Paſture which is eaten by the Oxen of the Plough, or by the Cattel of the Pail. Mich. 9 Jac. Baxter & Hope, per Curiam. Tr. 15 Jac. B. Belle & Tarde. Prohibition granted. M. 14 Ja. B. R. Dr. Beſte & Williams, Prohibition granted. Hill. 14 Jac. B. R. Kneebon & Woodret, Conſultation denied.No Tithe ſhall be paid for Horſes of the Plough, for the Parſon hath the benefit of their labour in the Tithes of the Corn. Tithes are not due for the young Cattel, which a man rears for the Plough, for they are for the manuring of the Land whereof the Parſon hath the Tithes. M. 14 Jac. B. Watley & Hanberry. Reſolv. & Prohibition granted, Mich. 14. Jac. B. R. Joyſe & Parker. Reſolv. & Prohibition granted, Trin. 12 Jac. B. R. Maſchal & Price, per Curiam. No Tithes are due for the young Cattel, which a man rears for his Dairy; dict. Caſ. Joyſe, & dict. Caſ. Kneebon, Prohibition granted. If a man according to the Cuſtome of the Countrey ſow his Land to feed his Horſes for Tillage, and the uſage be to ſuffer the Horſes to feed upon that Land, without any other meddling therewith,M. 3 Jac. B. R. per Towſe ſaid, That it was one Samms Caſe of Eſſex. Adjudg'd. Tr. 38 El. B. R. inter Sherington & Fleetwood. per Curiam. M. 7 Car. B. R. Facy & Large, per Cur. Tr. 15 Jac. B. R. L…mkin & Wilde. the Parſon ſhall not have any Tithes thereof, for it is nothing but Paſture for ſuch Horſes. If a man buy or breed Cattel, ſeed them and ſell them, he ſhall pay Tithes thereof; otherwiſe, if he buy or breed them, feed them and ſpend them in his own houſe. Nor ſhall a man that feeds Sheep on his Land, and after kills and eats them in his own houſe within the Pariſh, pay any Tithes thereof. If a man buy or breed Barren Cattel, as Oxen and Steers, and after ſell them, he ſhall pay Tithes for their Paſture, for they cannot yield any other Tithes: otherwiſe it is of Barren Sheep, as of Weathers, for they can yield Tithe of their Wool. If a man keep Horſes, which are Barren Cattel, to ſell, and he ſell them accordingly, he ſhall pay Tithes thereof. But it was Reſolved in Facy and Long's Caſe, That Tithes ſhall not be paid of any Cattel eaten in the Pariſhioners Family, no more than for Cattel reared for the Plough and Pail.
Cattel therefore or Beaſts for the Plough or Pail are not Tithable, otherwiſe in caſe they be only kept for ſuch uſe, till they be ready for the Plough or Pail, and then ſold away, in ſuch caſe they ſhall pay Tithe, being ſo ſold for profit. And if they ſtray from one to another ſide of a Common belonging to two Pariſhes,Mich. 8 Car. B. R. Baxter & Hopes Caſ. Brownl. 2. pa. acc. Trin. 20 Jac. Winch. 33. acc. no Tithe is payable for this to the Parſon of the Pariſh where the Cattel do ſtray. And as Dry Cattel, though bred for the Plow, are Tithable, if they be ſold away before they are put to that uſe: ſo alſo are Fatted Cattel, if they be ſold or killed for the Houſe, but according to the Cuſtome of the placeaM. 17 Jac. B. R. Mich. 2 Jac. B. R. Webb's Caſe. Mich. 8 Car. by 3 Juſtices. B. Iſtr. 2. 238. & March. 56.. Likewiſe for young Cattel, as Calves, Lambs, Colts, Piggs, &c. where their Dams are removed from one place to another, a Rate-Tithe is payable to the Parſons, according to the times of their abode in the ſeveral places, from the times of their engendring, by the Month-RatebBroo. Diſmes 16. Lane 16. Golds b. 147. Plow. 66.. Alſo Cattel Tithable feeding in any waſte place, not commonly known to be in any Pariſh, are Tithable to the Parſon of the place where the Owner of the Cattel doth dwell. But if Cattel do feed one half of the year in one Pariſh, and the other half year in another Pariſh, the Tithe ſhall be equally divided between the two Parſons of both Pariſhes: ſo proportionably for a greater or leſs time, provided it be the ſpace of a Month or 30 daies; but of any leſs time than a Month, no Tithe is payablecTerm. 7 Jac. B. R. Broo. Diſmes 17. If Cattel be pawned or pledged, the Gagee ſhall pay the Tithe of them, becauſe he is Owner of them for the time; but if a man Bail Cattel or other goods to Re-bail, Tithes of them ſhall not be paid by the Bailee, becauſe he hath no property in them, but only a RebailerdPaſch. 15 Car. Adjudg. acc Hugh. Abr..
Chalk and Chalk-pits are not Tithable.
Cheeſe paying Tithe, exempts the payment of Tithe-Milk whereof the Cheeſe is made. Et è contra. So that Cheeſe is not Tithable where the Milk is Tithed. Et vice verſa. Therefore to preſcribe to pay the Tenth Cheeſe between May and Auguſt for all Tithe-Milk within the year, and not the Tenth part of the Milk, may be a good PreſcriptioneMore. Caſe 1279.. And where Milk is Tithed in kind, there no Tithe-Cheeſe is due: In which caſe, as in all others of Tithing, the Cuſtome of the place is to be obſerved.
Cherry-Trees in Buckinghamſhire have been adjudged Timber, and Tithe-freefPaſch. 17 Jac. B. R..
Chicken of all Tame-Fowl are Tithed in kind, according to the Cuſtome of the place. No Tithe ſhall be paid of Chicken, for that there is paid Tithe-Eggs; and Prohibition granted. Hill. 15 Jac. B. R. Reſolved.
Clay is not TithablegHill. 16 Jac. B. R. inter Daudrige and Johnſon..
Clothes Fulled in a Fulling-Mill pay no TitheshIbid..
Coles are not Tithable; therefore a Preſcription de non Decimando (as to that) is goodi20 Eliz. B. R. by Wray, and all the other Judges.. No Tithes ſhall be paid de jure for Cole. Hill. 14 Jac. B. R. per Houghton.
Common of Eſtovers, or the Wood which a man burns in his houſe, doth not pay Tithes.
Compoſition Real, is one of the waies or means whereby Tithes may be diſcharged: It is where the Incumbent, Patron, and Ordinary, by Deed or Fine, do agree that ſuch Lands ſhall for ever be freed and diſcharged of all manner of Tithes paying an Annual payment, or doing ſome other thing for the profit or advantage of that Parſon or Vicar to whom the Tithes did belongkCo. 4. 44. a. 2 Inſt. 655. Dr & Stud. l. 2. c. 55. & Hob. 176., from which Compoſitions all Preſcriptions de Modo Decimandi have, or ſhould have had their Original. But theſe Real Compoſitions, ſo as to oblige the Succeſſor of the Parſon or Vicar that made the ſame, ſeem now to be reſtrained by the Statute of 13 Eliz. cap. 10. whereby they are prohibited from making any Grant for above 21 years or three Lives, and that with the accuſtomed yearly Rent reſerved. And if the Parſon or Vicar make any Compoſition with his Pariſhioner without his Patron and Ordinary, it ſhall bind only for the Parſons life, and during his Incumbency. This Compoſition is either between Parſon and Pariſhioner, or inter Clericos; if it be between Parſon and Pariſhioner, and it be touching Tithes paſt, the Compoſition is good, though it were without any Conſideration at all; but if it be touching Tithes to come, it may be good as to a payment of Tithes only in part, but not good as to a non-payment of any Tithes at all; nor is it good in part without the Biſhops approbation and confirmation. If the Compoſition be inter Clericos, and the Tithes be Perſonal Tithes, it holdeth not: but if they be Predial Tithes, the Compoſition holdeth, the Approbation of the Biſhop of the Dioceſs being thereunto had. So that Compoſition for the remitting or entirely taking away of Tithes it not good in Law; but a Compoſition with the Parſon or Vicar to have but the Thirteenth Sheaf for his Tithe, was held to be a good Compoſition, and ſhould bind the ParſonlHugh's Parſons Law, cap. 27.. Compoſition may likewiſe prevent the payment of Tithes in kind; and if it be made with a Parſon or Vicar to pay a Modus Decimandi, which hath continued time out of mind, Cuſtome being equivalent to Law, it is good, and ſhall bind the Parſon and his Succeſſorsm8 H. 6. 22, 23. 9 H. 6. 17. 6 E. 3. 27. 17 E. 3. 11. 12 H. 4. 13. 19 H. 6. 75. 34 H. 6. 36. 31 H. 6. 28. 35 H. 6. 5. 26 H 8. 7. 27 H. 8. 20. & 21 acc.; and although a Modus Decimandi cannot begin at this day, but muſt be by Preſcription, yet a Compoſition may be made, which ſhall bind during the life of him that made itnPaſch. 17 Car. in Hitchcock's Caſe.. The Caſe was, A Vicar did contract with his Pariſhioner to pay ſo much for increaſe of Tithes, and died: his Succeſſor ſued in the Eccleſiaſtical Court for them. A Prohibition in this caſe was granted by the Court. The words of the Contract were (inter ſe convenerunt:) It was holden, that this was not a Real Compoſition, although that the Biſhop did call it Realis Compoſitio, for his calling of it ſo, doth not alter the nature of it; but it remains a Perſonal Contract, and ſo ſhall not bind his Succeſſor, although it were confirmed by the Biſhop. It was ſaid by Mallet Juſtice in this caſe, A Real Contract, although it be made between Spiritual perſons, and of Spiritual things, is only queſtionable at the Common LawoPaſch. 17 Car. B. R. Hichcock & Hichcock's Caſe. Marſh. 87.. Compoſition ſhall bind during the life of him that made it, though not his SucceſſorspMich. 6 Jac. C. B Caſe Mildmay & Hutton..
Coneys taken in a Warren ſhall pay Tithes; yet they are not Predial, but Perſonal Tithes. Sed Q. whether Tithes ſhall be paid of them; becauſe Berkley Juſtice, They are not Tithable but by Cuſtome, 15 Car. B. R. For no Tithes de jure without a Cuſtome ought to be paid for them, for they are Ferae naturae, Trin. 8. Car. B. R. Worden & Bennet's Caſe; after a Prohibition granted, a Conſultation denied per Curiam for the reaſon aforeſaid.Paſch. 15 Car. Adjudg. acc. Paſch. 13 Car. B. R. Sir Jo. Brewen & Dr. Bradiſh's Caſe per Cur. a Prohibition granted, and Hill. 13 Car. B. Vincent and Tutt's Caſe, Prohibition granted, and for Prohibition pleaded by the Parſon to have them by Preſcription. Mich. 14 Car. B. R. Williams and Wilcock's Caſe. Or if a man ſteals Coneys out of a Warren,Ibid. he ſhall pay no Tithes of them, becauſe the Law gives him no property in them; nor ſhall the right Owner pay any Tithes of them, becauſe he hath no profit by them.
Corn pays a Predial Tithe, as that which comes partly by the Induſtry of Man, and partly of the Earth. Mich. 8 Jac. C. B. Magna Charta 649. And if a Cuſtome be alledged, That the Parſon ſhall have but the Tenth Sheaf of Wheat for all the Tithes of all manner of Corn and Grain, this is no good Cuſtomer38 Eliz. C. B.. Yet Corn of all kinds fowed is Tithable according to the Cuſtome of the place; and is commonly Tithed by the Tenth Shock, Cock, or Sheaf, where the Cuſtome of the place is not otherwiſe; but not to put the Parſons Tenth up on end in Shocks, unleſs the Cuſtome of the place be ſosSmith's Caſe, C. B.. And if the Owner will not cut his Corn before it be ſpoiled, the Parſon is without remedyt12 Ed. 4. Dr. & Stu. 169.. And if he doth change the Corn or Grain fowed in the ſame ground, ſuch change of the Corn ſo ſowed doth change the Tithe to the ſame kind of that Grain. And if a man pay Tithe of Corn, he ſhall not pay any Tithe for the Stubble, which grew the ſame year on that Land. Hill. 6 Jac. B. pl. 13. Smiths Caſe per Cur. & Caſe ibid. Paſch. 7 Jac. per Cur. & Mich. 9 Jac. Baxter & Hope, for the Aftergraſs, & 2 H. 4. Rot. Par. nu 93. No Tithes for the Agiſtment in ſuch After-paſture. And if the Parſon hath Tithes of Corn one year, and the Land be left without Seed the next year, that ſo it may be Plowed and made ready for Seed the the third year, no Tithes ſhall be paid the ſecond; for by lying freſh the Land is the better, and the Parſon will have the better Tithes the third year. Paſch. 7 Jac. Smith's Caſe. By the Statute of 2 Ed. 6. cap. 13. the Parſon or Vicar is priviledged to come upon the Land to ſee the Tithes ſet forth: For by the ſaid Statute it is Enacted, That at the Tithing time of Predial Tithes, it ſhall be lawful for any to whom Tithes are payable, or for his Deputy or Servant to ſee the ſaid Tithes to be ſet forth and ſevered from the Nine parts, and quietly to take and carry them away. And as the Parſons Rights are hereby ſecured from the danger of having his Predial Tithes ſubtracted: ſo likewiſe the Law hath provided nor only for the prevention of his being defrauded therein, and for his quiet removal and carrying the ſame away; but alſo for an open, free, and unmoleſted way and paſſage through which to carry the ſame away, as appears by Halſey's Caſe. The Caſe was this: H. procured a Prohibition againſt H. and declared, that the Defendant had ſued him in the Eccleſiaſtical Court for a Way or Paſſage; he was Proprietor of Tithes in the Pariſh of M. and that the Common way to carry the Tithes out of the Plaintiffs Land was by a Cloſe called S. and that the Plaintiff had ſtopt it up, when in very truth the Way was by Preſcription by a Cloſe called W. and that he had pleaded it in the Eccleſiaſtical Court, and the ſaid Court would not allow thereof, and for that the Cognizance of a Preſcription for a Way ought to be tried at the Common Law, and not in the ſaid Court, &c. Whereupon the Defendant demurred, and by the Opinion of the whole Court a Conſultation was granted; for that the Cognizance of Waies for the carrying of Tithes belongs to the Court Chriſtian, as appears by the Statute of 2 Ed. 6. and Fitzh. N. B. in Conſultation, and Lindwood de Decim. uHil. 6 Car. B. R. Halſey verſ. Halſey. Jones Rep.When Tithes of Corn are ſevered from the Nine parts, an Action. of Treſpaſs lieth againſt any that ſhall take them away, whether he be the Owner of the Land or a StrangerwBroo. Diſmes 6. & Brownl. 2. pa. 30.. Alſo an Action of Debt lieth for Predial Tithes, as of Corn, Wood, Graſs, Fruit, Hay, &c. and treble Dammages recoverable upon the ſaid Statute of 2 Ed. 6. 13. But not ſo for leſſer Tithes, as of Wool, Lamb, &c. nor for money given to the Parſon in lieu thereof; but for each of theſe Suit may be commenced according to the Statutes of 27 H. 8. and 2 Ed. 6. 13. & 32 H. 8. 7.xCo. on Litt. 159.. So that if the Owner of the Corn ſet out his Tithes, and after take it away, the Parſon may ſue him in the Eccleſiaſtical Court, or bring an Action of Treſpaſs againſt him: But the Parſon may not ſue a Stranger in the Eccleſiaſtical Court for taking away the Tithes which were ſet out.Hill. 6 Jac. Brownl. Rep. pa. 1. Caſes in Law, &c. In Hele's Caſe againſt Frettenden, the Reſolution of the Court upon Two Caſes upon the Statute of 2 Ed. 6. for not ſetting forth of Tithes was this, viz. A man poſſeſſed of Corn ſells it, and before Two Witneſſes ſets out his Tithes, and afterwards privily takes away the Tithes; and the Parſon ſues him upon the Statute for Treble dammages, for not ſetting forth of Tithes: And the Defendant proves by Witneſſes that he ſet forth his Tithes; yet the Fraud is provided againſt by the Statute, for the words are [without fraud or deceipt.] In the ſecond Caſe, One ſecretly fells his Corn to one who was not known, and afterwards the Vendee commands the Vendor to cut the Corn, which he doth, and takes away the whole Corn without ſetting forth his Tithes; the Queſtion was, who ſhould be ſued for the Tithes: and the Court held, that the firſt Vendor ſhould be ſued, for it was Fraudulent. And where a Woman, being Proprietor of a Parſonage took A. to Husband; a Pariſhioner within the Pariſh ſet forth his Tithes and divided them, and then immediately took them back again; A. the Husband alone ſued for the Treble value according to the Statute of 2 Ed. 6. Two points were moved, (1) Whether that were a ſetting forth within the Statute? And by the Court, that it was not; and ſo hath been Adjudged in 43 & 44 Eliz. and 1 Jac. (2) Whether the Husband may ſue for the Treble value without naming his Wife? And to that the Court would be Adviſed;Ford verſ. Pomroy. Brownl. pa. 2. for though the Husband may ſue alone, where a thing is Perſonal for which he ſueth, as the Books of 4 Ed. 4. 31. 7 Ed 4. 6. 15 Ed. 4. 5, & 11. are; yet where the Statute ſaith, That the Proprietor ſhall have Suit for the not ſetting forth, &c. the Husband is not intended Proprietor as the Statute intends, but the Wife, and for that the Wife ought to joyn. For the due manner of Tithing Corn, the Pariſhioner ought of Common right to cut the ſame, and to prepare it for the Parſon, and to ſeparate it from the Nine parts; he ought alſo of Common right to make up the Corn into Sheaves,Hill. 6 Jac. …. pl. 13. per Cur. but is not obliged to gather and ſet it up into Hillocks or Heaps, for the manner of Tithing is good,Trin. 21 Jac. B. R. Guin & Merryweather's Caſe. Roll. Rep. if the Corn be thrown out in Shocks; and being ſo ſet out they become Lay-Chattels. In Guin and Merryweather's Caſe it was ſaid by Doderidge Juſtice, That if one defame and ſcandalize the Parſon's Title to the Tithes, although he be not puniſhable for this in the Temporal Courts, yet he is puniſhable in the Eccleſiaſtical Court; he ſaid alſo, that when Tithes are ſet out, they are then Lay-Chattels, and if a Stranger carry them away, the Action lies not in the Eccleſiaſtical, but Temporal Court; otherwiſe it is, if it were not ſevered from the Nine parts. Ley Chief Juſtice Agreed it, and ſaid, That if a Stranger take the Corn before Severance of the Tithes, the Parſon ſhall ſue in the Eccleſiaſtical Court for Tithes againſt the Treſpaſſer, and not againſt the Terre-Tenant: And where the Right of Tithes comes in queſtion, Prohibition ſhall not be granted. Nor ſhall Fraud or Covin prevent the payment of Tithes;Stebs and Goodwich's Caſe. Mores Rep. for in a Caſe of Tithe-Corn, where the Cuſtome of L. in the County of B. was alledged, That the Parſon ought to have the Tenth Land of Corn, beginning at the ſuch Land which was next to the Church; the Occupiers of the Land, to defraud the Parſon by Covin, did not ſow the Tenth-Land, nor manure it; yet the Parſon ſued for Tithe in kind, to have the Tenth-Cock for Tithe of the Corn ſowed, and a Prohibition awarded notwithſtanding the Covin, becauſe he had Remedy at the Common Law for the Fraud.
Cows that yield Milk, no Tithe is to be paid for the Paſture thereof; and if a man hath but one Cow, and no Cheeſe made of the Milk thereof, the Cuſtome of the place muſt be obſerved, ſo that ſomething be paid for the Tithe thereof, otherwiſe no Cuſtome will bind.
Curtelages, or places adjoyning to Manſion-houſes, and applied to Seeds, Herbs, &c. are Tithable in kind, if the Parſon make not an Agreement for the ſame; otherwiſe it muſt be Tithed in kind, by ſetting forth the Tenth-part for the Parſon when the Owner receives his Nine parts.
Cuſtome is, where a Right to many is procured in Common and Publick: as Preſcription is privately to one. If the Cuſtome be of tranſlating of Tithes Predial (as in Compoſition) then it holdeth: Otherwiſe, if it be of Tithes Perſonal. But if it be of not yielding Tithes at all, it doth not hold; for a Cuſtome of paying nothing at all, is not good; but if it be only of yielding leſs than the Tenth, it holdeth both in Perſonal and Predial Tithes. It holdeth alſo as to the Place where Tithes ought to be left, of the Time when to be yielded, as alſo of the manner and form of yielding them. So that although Cuſtome (which chiefly refers to a Place, as Preſcription) doth to a Perſon cannot totally take the Tithes away, yet it may limit and moderate the payment thereof. Notwithſtanding in ſome places and caſes, a Cuſtome applied to a Countrey to pay no Tithe (as in 40 Pariſhes for the Wild in Suſſex) is good; but generally ſuch a Cuſtome is not good. Likewiſe, a Cuſtome tending to the impoveriſhment of the Parſon or Vicar is no good Cuſtome. Mich. 11 Jac. C. B. inter Jux and Sir Charles Candiſh. Likewiſe a Cuſtome to pay Tithes truly, without view of the Parſon; is not goodyHob. 107.. Alſo a Cuſtome alledged to pay the Tenth Sheaf of Wheat for the Tithe of all manner of Corn and Grain, is not a good Cuſtome. dict. Caſ. Jux & 38 Eliz. C. B. Adjudg. But a Cuſtome to pay Tithe-Wool at Lammas-day, though due at Shearing, is goodzMore. Caſe 1280.. But ſuch is the ſtrength of a Cuſtome, that it cannot be diſcharged by a verbal Agreement for Money aHob. 106.. Cuſtome may make that Tithable, which of it ſelf is not TithablebMarch. 65.; and may alter Tithes in any other thing, which will be a Modus Decimandi, ſufficient to bind the Parſon and his SucceſſorscCo. Select Caſes 14, 46, 48.. Cuſtome is properly Triable at the Common Law upon a Prohibition; but a Conſultation may be granted on a Prohibition granted on a Surmize not proved within Six months; as was Adjudged, Hill. 6 Jac. C. B. in Caſ. inter Sharp and Sharp. No…. Rep. Cuſtome and Preſcription; both ought to be without interruption Conſtant, and beyond the memory of man Perpetual, that is, no man in being remembers to the contrary; for it ſeems, if any man, or any Authentick Record, or other ſufficient Evidence can prove it was otherwiſe at any time ſince the firſt of R. 1. viz. 1189. the Cuſtome or Preſcription at Common Law would not holdfCo. 2. Inſt. 653.. Albeit by the Statute of 2 Ed. 6. c. 13. Tithes are to be yielded and paid as of right they had been within 40 years next before; which time ſomewhat agrees with the Eccleſiaſtical Computation: And by the Statute of 27 H. 8. c. 20. they are to be paid according to the Eccleſiaſtical Laws and Ordinances, after the laudable Uſages and Cuſtomes of the Pariſh; which was alſo after confirmed (as to the lawful Uſage and Cuſtome) by the Stat. of 32 H. 8. 7.