Abridgment of Ecclesiastical Laws, Treatise · Chapter 32 · Part 8 – Part 9
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HAy pays a Predial Tithe, and is to be Tithes in Swathes, Windrows, or Cocks, as the Cuſtome of the place is. Or if the Cuſtome be to meaſure out the Tenth part, as the Graſs grows on the Land for Hay, the Cuſtome is good; and the Tithe of Hay may be ſet forth in Graſs-Cocks, where the Cuſtome doth not oblige to make it into Hay-CocksaRoll. 1… 644. y. 1256.. And if Hay be put into Ricks on the ground, and after ſold, the Buyer cannot be ſued for the Tithe; the Seller may, in caſe the Tithe thereof were not paid before. Hill. 16. Jac. by three Juſtices in Aſhfield's Caſe. And where two Crops of Hay are had from the ſame ground in the ſame year, Tithe ſhall be paid as well of the latter as of the formerbRoll. 1. 645. z. 11, 12, 13.. Alſo Tithe ſhall be paid of the Hay made of Graſs growing in Orchards. Co. 2. Inſtit. 652. But no Tithe Hay ſhall be paid for the Graſs growing upon Headlands, which are only large enough for the turning of the PloughcRoll. 1. 646. 2. 19.; but not for Graſs cut in Meadows to feed the Beaſts of the Plough, and not made into Hay. Trin. 1. Car. B. R. Wells verſ. Crawly. Yet on ſome Headlands Tithe may be payable of Hay, for ſuppoſe that in an Arable Field there be much Graſs on the Headlands thereof, and there be a Preſcription to pay the Tenth Shock of Corn there for all the Hay on the Headlands and Rakings of the Corn, and for Tying of Horſes on the Headlands, ſuch Preſcription was held good to diſcharge the Tithe of the Hay upon ſuch HeadlandsdLeon. 2. 93.. And although a Second Crop of Hay from the ſame ground the ſame year is Tithable, as aforeſaid, yet regularly the Hay of the Aftermath pays no Tithe, except there be a Special Cuſtome for it; the Rule being, That Tithes ſhall be paid Ex annuatis renovantibus ſimul & ſemel eHob. 250.. And where the Cuſtome is not otherwiſe, the Pariſhioner ought to make the Graſs into Hay for the Parſons TithefPaſch. 13 Jac. B. R. Roll. Rep.. Yet when the Tithes of Graſs are ſevered from the Nine parts, the Parſon de jure may make it into Hay upon the Land where it grew, and that de jure, as well as the Pariſhioner himſelf; and ſo Adjudged in the Parſon of Columbton's Caſe in Devon, and the Prohibition denied accordingly; where the Parſon had alledged a Cuſtome of doing ſo, but the Court held that to be needleſs. Hill. 14. Jac. B. R. Newbery and Reynold's Caſe, per Curiam. And in this caſe it was held, That the Parſon may go over the Pariſhioners ground in the Path-way to make the ſaid Graſs into Hay, for that is incident to the Tithes. A man is not bound to make into Hay the Tithes of the Graſs which he cuts; but he may ſet forth the Tithes thereof when it is in Graſs-Cocks, for he may then ſever the Tithes of Graſs from the Nine parts. Paſch. 17 Jac. B. Hide & Ellis, Hob. Caſe 328. Contr. Hill. 14 Jac. B. R. Barham & Gooſe. P. 15. Jac. B. R. per Cur. and Prohibition denied; Tr. 15 Jac. B. R. Poppinger & Johnſon per Cur. and Prohibition denied. Paſch 13 Jac. B. R. per Cur. and Prohibition denied. P. 2. Jac. B. R. Hob. 328. Hall & Simonds, Adjudged. Likewiſe, a man is not bound to ſever the Tithe of Graſs before it be put into Graſs-Cocks, and hath ſet forth the Tenth part; for he may put it into Graſs-Cocks out of the Swath, and then ſet forth the Tenth part. Ibid. Suit was for Tithe-Hay in the Eccleſiaſtical Court by the Parſon; it was Surmized, That they had time out of mind paid to the Vicar 4 d. for the Tithe-Hay. The Court awarded a Conſultation, for that the Modus Decimandi doth not come in queſtion; but this he may plead in the Eccleſiaſtical CourtgBatham & Lady Greſham's Caſe. Cro. par. 1.. And in Gomerſall and Biſhops Caſe for Tithe-Hay, the Court held, That if there be variance between the Surmize and the Declaration, all is ill. In another Caſe in a Prohibition, it was Surmized, That time out of mind the Owners of the Land had found Straw for the Body of the Church in diſcharge of all Tithes of Hay: It was the Opinion of the Court, That it was no good Surmize, for that the Parſon had no benefit of it; and a Conſultation was awardedhScory and Babe… 's Caſe. ibid..
Heath, Furſe, and Broom, Tithe ſhall be paid thereof, unleſs the party ſet forth a Preſcription or Special Cuſtome, That time out of mind there hath been paid Milk, Calves &c. for the Cattel that have been kept upon the ſame Lands; in which caſe they ſhall not pay TithesiMich. 29. Eliz. B. R. Adjudged. Hugh. Abr..
Hemp pays a Predial Tithe. Co. Magn. Char. 649.
Herbage of ground, whereon Corn was ſowed the ſame year, and whereof Tithe hath been paid the ſame year, is not Tithable kMore. Caſe 433. 697. 1280. Leon. 2. Caſe 30.. If Herbage he ſold, it is at the Parſons Election, whether he will Sue the Owner of the Cattel that feed thereon, or of the Ground, for the Tithe thereof, if Cuſtome be not againſt it. And as for Herbage growing at Lands-ends, adjoyning to the Arable, pays no Tithe, where Tithe was paid for ArablelLane 16.. Where an innkeeper hath paid Tithe-Hay of certain Lands, and the reſt of the year after puts into the ſame the Horſes of his Gueſts, no Tithes ſhall be paid for the Herbage of ſuch Horſes; for it is but the Afterpaſture of the ſame Land, whereof he had paid Tithes before. Trin. 16 Jac. B. R. Richardſon & Cable, per Curiam, Prohibition granted.
Honey is Tithed by the Tenth meaſure thereof. A Prohibition was prayed for Suing for divers kinds of Tithes, & inter alia for Honey, upon a Surmize that it was not payable, that Bees are Volatilia: It was thereupon demurred; but the Opinion of the Court was, That Tithes are to be paid for Honey, for ſo is the Book Fitz. N. B. and therewith agreeth Lindwood; wherefore the Court awarded that there ſhould be a ConſultationlM. 15 Car. B. R. rot. 1227. Bar ſcot and Norton's Caſe. Cro. pa. 3..
Hops pays a Predial Tithe, and regularly are accounted inter minutas Decimas; yet in ſome Caſes they may be Great Tithes, in places where they are much ſet or plantedmUdall & Tindall's Caſe. Hutton. 77.. Mich. 8. Jac. B. A man may ſet forth the Tenth part of his Hops for Tithes before they be dried. Hill. 14 Jac. B. R. in Barham and Gooſ's Caſe, put by Serjeant Hitcham, and agreed by Mountacute.
Hop-poles or Wood cut and employed for them, are not Tithable where Tithe-Hops are paid. And ſo it hath been Reſolved, That if Wood be cut and employed for Hop-poles, where the Parſon or Vicar hath Tithe-Hops, they ſhall not have Tithes of the Hoppoles. So if a man hath a great Family, and much Wood be felled and ſpent in Houſe-keeping, Tithes ſhall not be paid of ſuch Wood. Mich. 15 Jac. C. B. by Hobart Chief Juſtice, White & Bickerſtaff's Caſe.
Houſes of habitation, or Dwelling-houſes are not properly Tithable, no Tithe payable for the ſame, nor out of the Rent reſerved for them being Lett; yet by a Cuſtome Tithes may be paid for Rent reſerved upon Domiſe of Houſes of habitation, although it be otherwiſe do jure, for it might commence on good Conſideration. Co. 11. Dr. Grant 16. vid. Mich. 12 Jac. B. Hobart 16. Leyfield's Caſe. Prohibition granted. Otherwiſe of New Houſes, whereof there can be no Cuſtome. Ibid. But regularly Houſes are not at all Tithable, nor were Tithes anciently paid for Houſes in London, the Profits of the Churches whereof, conſiſt only in Oblations, Obventions, and Offerings, Co. ibid. But by a Decree made An. 1535. and confirmed by Act of Parliament, Stat. 37 H. 8. cap. 12. there is 2 s. 9 d. made payable to the Parſon for every Pound of Houſe-Rent for the Tithes of the Houſes in London. Hob. 11. But if a Modus Decimandi be alledged to pay 12 d. in every Pound of Rent for every Houſe in ſuch a Pariſh in London, it is a good Modus Decimandi. The aforeſaid 2 s. 9 d. is to be raiſed and made up according to the uſage and Cuſtome of the City. Stat. 27 H. 8. 20. & 32 H. 8. 7. And no Tithes are payable for Houſes in any City ſave London, where a Preſcription to be diſcharged of Tithes of a Houſe, by paying 12 d. of every Pound Rent in lieu thereof, is (as aforeſaid) a good Preſcription. Co. 11. 16. But Tithes regularly are not payable for Houſes of Habitation, nor of any Rent reſerved upon any Demiſs of them; for Tithes are to be paid of things which grow and renew every year by the Act of God. And for the Houſes in London Tithes anciently were not paid, as aforeſaid; yet the Parſon of St. Clements without Temple-Bar Libelled againſt a Pariſhioner for Tithes of certain Stables … ſet forth in his Libel, That of … …ſcription time out of mind, the … had uſed to have a Modus Decimandi, after the Rate … Tenth-part of the yearly Rent or value of the ſame … was the Opinion of the Court, That in this Caſe a Prohibition ſhould be granted; for de Communi jure no Tithes are to be paid of the yearly Rent or value of Houſes, for Tithes are paid of the revenue and increaſe of things; and therefore no Tithes are paid for Houſes in any Cities or Towns in England, ſaving in London; and this Pariſh is out of London and the Liberties thereof: Now where there is no Tithe at all, there can never be a Modus Decimandi, and yet it ſeems this kind of Payment hath been long uſed in London, which certainty was by uſe. But for Houſes, Oblations were paid in all places; which are now by the Stat. brought to a certainty, viz. 4 d. for a Houſe. Trin. 12. Jac. C. B. Dr. Leyfield and Tindall's Caſe. Hob. 10. 11. In Green and Piper's Caſe it was agreed by the Juſtices, That a Houſe in London, which was parcel of the Poſſeſſion of a Priory, which was diſcharged of the payment of Tithes, ſhould by the Stat. of 37 H. 8. be charged with the ſame. One who was a Curate and Sequeſtrator only of the Rectory of D. in London, the Incumbent being ſuſpended, Sued Four of the Pariſhioners in the Eccleſiaſtical Court for Tithes of their Houſes, and not before the Mayor of London, according to the Statute of 37 H. 8. The Court doubted of it, eſpecially becauſe the party was neither Parſon nor Vicar, and becauſe the Statute is a New Law, and appoints how the Tithes in London ſhall be paid and Ruled, and before what Judges, and what Remedy ſhall be for the party grieved; and day given to hear Counſel on both ſidesnMich. 16 Car. B. R. Cro. par. 3.. In the Caſe aforeſaid between Green and Piper oMore. 1218., when Suit was in the Eccleſiaſtical Court for the Tithes of a Houſe in London, a Prohibition was prayed upon a Surmize, That the Houſe was a Priory, which was diſcharged of Tithes by the Pope's Bull, and the Statute of 31 H. 8. which gave their Poſſeſſions to the Crown, did Ordain, That the King and his Patentee of ſuch Lands ſhould be diſcharged of Tithes; yet a Conſultation was awarded, becauſe by a latter Statute, viz. 37 H. 8. cap. 4. all Houſes in London ſhall pay Tithes according to their Ordinances, and the Statute extends to all Houſes, and none excepted but the Houſes of Noble-men.
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LAmbs are computed among the Mixt Tithes. To pay Pence apiece for Lambs, when the number is leſs than Seven, is a good Preſcription. Curia 7 Jac. B. R. Patche's Caſe. Or rather thus, viz. if the Pariſhioner hath Six Lambs, or under, he ſhall yield for Tithe a halfpeny for every Lamb: if he hath Seven Lambs, then he ſhall yield a Lamb for his Tithe, and receive Three-halfpence from the Parſon: if Eight Lambs, then a peny: if Nine Lambs, then a halfpeny from the Parſon, who may otherwiſe expect the Fall of the Tenth Lamb the year next following. Lindw. cap. Quoniam propter. Alſo the Tithe of Lambs is to be apportioned with reſpect to the places where they were engendred, brought forth, and nouriſhed. Lindw. cap. Quoniam audivimus. And regularly the time of payment is, when they are weaned from the Dam, unleſs the Cuſtome of the place be otherwiſe. To ſtay a Suit in the Eccleſiaſtical Court for the Tithe of Lambs a Prohibition was prayed, upon a Surmize the Cuſtome to be, That if one hath Lambs under the number of Seven, he ought to pay a halfpeny for every Lamb in lieu of all Tithes of Lambs; if he hath but Seven, then the Parſon to have the Seventh, and he to pay Three-pence; if Eight, then Two-pence; and if he had Ten, the Parſon ſhould have the Tenth without paying any thing: Reſolved, That this being a Cuſtome, which they refuſed to allow in the Eccleſiaſtical Court, a Prohibition ſhould be awardedpPaſch. 11 Car. B. R. Cro. p. 3..
Lands accruing to the Crown by the Statute of 27 H. 8. touching Diſſolutions, are now Tithable, though whilſt they were the Lands of Religious Houſes they were not Tithable; but their Priviledges being Perſonal, they were extinguiſhed by the ſaid Statute of Diſſolutions, nor hath the Statute of 31 H. 8. retroſpect to the ſaid Priviledges. 15 Jac. C. B. Garret and Wrigh's Caſe. & 7 Car. B. R. Clark and Ward's Caſe. Vid. Sr. Marmad. Strickland's Caſe 1639. Adjudged at York Aſſize accordingly. Vid Clayton's Rep. 117. & 12 Car. Adjudged in another Caſe. Alſo Lands gained from the Sea, and made Arable, muſt pay Tithes. Bulſtr. 8. 165. So muſt Lands in themſelves Tithable, but not Manured or Ploughed, ſpecially if ſo in prejudice to the Parſon; in which caſe he may Sue the Occupier of ſuch Lands in the Eccleſiaſtical Court for the Tithes of that Land. Vid. 15 Car. C. B. per Berkley Juſtice, Adjudged.
Lops of Trees above twenty years growth ſhall pay no Tithes qMore. 158.; For it hath been held, that if a man Lop a Tree under twenty years, growth, after ſuffer the Tree to grow paſt twenty years, and then Lop it again, no Tithe ſhall be paid for the ſecond Lopping, although the firſt Lopping were not Tithe-FreerC. B. by the whole Court. Brownl. 1. pa. 33.. It was Reſolved in Reynold's Caſe, That Tithes ſhall not be paid of the Lopping of Trees above twenty years growth. More's Rep.
Lime is not Tithable; Adjudg. 19 Eliz. B. R. & Paſch. 34. Eliz. C. B. Liff and Waltt's Caſe: Nor Marle, Bricks, Slates, or Tiles, unleſs the Cuſtome of the place make them Tithable; otherwiſe not, becauſe they do not annually increaſe, and becauſe Lime is part of the Freehold. Mich. 13 Jac. B. Thomas and Perrye, per Curiam.