Abridgment of Ecclesiastical Laws, Treatise · Chapter 32 · Part 13 – Part 14

Abridgment of Ecclesiastical Laws · Treatise · Chapter 32 · Part 13 – Part 14

p. 427P

PArk, if converted into Tillage, ſhall pay Tithe in kind, for a Park is but a Liberty; a diſcharge therefore of the Tithes of a Park is not a diſcharge of the Tithes of the very Soil, which may be converted into TillageaaSharp verſ. Sharp. Nor. Rep.. Or if there be a Modus Decimandi of the Park, and the Park be diſparked, and the Land converted into Tillage or Hop-ground, or the like; in this caſe though Tithes in kind are not payable, yet the Modus ſhall remain. The Caſe is the ſame, if the Park be diſparked by having all the Pales fallen down, which in Law is a diſparking of the Park. Sed Q. bbVid. Paſc. 19 Jac. C. B. Poole & Reynold's Caſe.. For to pay a Buck or a Doe, or the Shoulder of a Deer, when one is killed, may be a good Modus Decimandi for the Tithe of a Park. A Vicar having two ſhillings yearly, and the Shoulder of every third Deer killed in a Park, the Park being diſparked, the Vicar ſued for Tithes in kind. The Court was divided in Opinion: Nicholls and Hobart Juſtices, That notwithſtanding the Diſparking the Modus did remain: Winch and Warburton Juſtices, That by the Diſparking the Preſcription as to the Modus Decimand was determined, and that the Tithes ſhould be paid in kind. Quaere ccCooper and Andrew's Caſe.. Where a Park is diſparked, if the Park paid ten ſhillings, or any other Sum for all p. 428Tithes, and now diſparked and ſown with Corn, here only the ten ſhillings ſhall be paid; otherwiſe, if the Preſcription be for the Deer and Herbage of the Park, and not for all the Park; for in ſuch caſe Tithes in kind ſhall be paid, if it be diſparked and ſown with Corn. A Modus to pay ſo much money for the Tithe of a Park is good, though the Park be Diſparked**Paſch. 13 Jac. B. R. Maſ…hal & Priceper Co. Roll. Rep.. If one Shoulder of every Deer killed be Preſcribed to be paid for all Tithes, and it be after Diſparked, here the Tithe in kind ſhall be paid; or if the Preſcription be to pay Ten ſhillings and a Shoulder of every Deer, and it be Diſparked, here it ſhall pay Tithe in kind, and not the Ten ſhillings onlyddMore. Caſe 1277, & Caſe 1186.. Upon a Surmize of a Modus Decimandi to pay a Buck or a Doe for all Tithes of a Park, a Prohibition, was prayed, and grantedeeHil. 6 Jac. C. B. The Vicar of Clares Caſe.. If a Modus Decimandi be to pay Two things, as Two ſhillings for a Park, and a Shoulder of every Buck kill'd in the Park, and all the Deer die, or are kill'd up, yet the Preſcription holds good for the Two ſhillingsffHob. 43.. And although Tithes are to be paid for a Park, yet Deer, as being Ferae naturae, are not Tithable, ſaving where the Cuſtome is otherwiſeggRoll. 1. 635. c. 4. 6, 7. Noy 108. Sr. 2 Ed. 6. c. 13.. In Thursbie's Caſe, where Suit was for Tithe-Corn growing in a Park lately Diſparked, the Defendant pleading a Cuſtome to pay Veniſon in lieu of all Tithes, and Proof that a Buck was paid yearly, but whether out of this Park or not was a Non conſtat: The Jury found, That if it was paid out of any Park, and accepted and allowed, this was better to uphold the Cuſtome, than if particularly tied to pay a Deer out of this Park; for now, if the Park be diſparked, yet this payment of the Deer may be performed: Otherwiſe, it is, if the Cuſtome had been a Deer out of this Park only, for then by the deſtroying of that, the Cuſtome is gone alſo. It was holden in this Caſe by the Judges, That although the Deer had been often, and for the moſt part paid out of this Park, yet this doth not alter the Cuſtome, if it may be paid out of any Park; and if the Cuſtome were to pay a Shoulder of Veniſon generally, it may come out of any Park hh13 Car. at York Aſſize Tour…btes Caſ. Clayt. Rep. 91..

Partridges made Tame, do pay not a Predial, but a Perſonal Tithe.

Paſture yields a Predial Tithe, which is generally paid by the Owner thereof, and ſo is the Cuſtome; yet Paſture-grounds ſed with Cattel that yield profit to the Church, have their Tithe ſatiſfied in the Fruit of the Beaſts. And if they belong to a Stranger who is not of the Pariſh, if he fell the Paſturage, he is anſwerable for the Tenth peny; but if he frankly giveth it, and the Pariſhioner freely receiveth it, the Pariſhioner is anſwerable for the Eſtimation, if the ſaid Grounds be fed with Beaſts yielding increaſe; otherwiſe no Profit at all to the Church, if ſed only with Horſes, p. 429Oxen, and other Barren Beaſts. And as touching the Paſture of the Horſes of Gueſts, the Tithe is to be paid by the Innkeeper for the ſameiiTr. 16 Car. B. R. Richardſon & Caleb's Caſe. Poph. 143.. But if the ſaid Horſes be put into ſuch Paſture, as is after a Crop of Hay of the ſame ground, no Tithe is payable by the Innkeeper for the ſamekkIbid.. Nor is the Paſture of ſuch Horſes Tithable as the Pariſhioner uſeth for his own Riding, nor the Paſture of ſuch Horſes as are uſed about Husbandry in the Pariſh; but where Horſes are kept or bred in Paſture that they may be ſold, in that caſe Tithe ſhall be paid for the Paſture thereofllHil. 15 Jac. B. R. Hide's Caſe. & Bulſtr. 1. 171.. But if Tithe be demanded for the Paſture of Riding Nags for the Saddle, for Labour and Pleaſure both, but not for Profit properly, a Prohibition will liemmTr. 9 Jac. B. R. Pothill & May's Caſ. Adjudg acc. Bulſtr. ibid.. Nor is the Paſture of Oxen uſed for Huſbandry Tithable, that is, being uſed for Husbandry in the ſame Pariſh; it may be otherwiſe, if they be uſed for other purpoſes, or for Husbandry out of the Pariſh. Mich. 8 Jac. C. B. in Baxter's Caſe. And as touching Tithe of the Paſture of Gueſt-Horſes by an Innkeeper, as hath been formerly mentioned; the Caſe was, A. Parſon of B. Libelled in the Eccleſiaſtical Court againſt C. an Innkeeper, becauſe that the ſaid C. took all the benefit of his Paſture, by putting Gueſt-Horſes into the ſame: whereupon C. prayed a Prohibition, but it was denied by the Court; for that it is Tithable in this caſe. But it was ſaid, That if C. had taken a Crop of Hay, whereof he paid Tithe, and afterwards had put in his Gueſt-Horſes into the After-paſture of that Ground where ſuch Hay was made; in that caſe it had not been Tithable, becauſe the Parſon had Tithe of the Land before. Trin. 16 Car. B. R. Richardſon and Cobbell's Caſe. Poph. 142. Alſo if a man lett out his Paſture, reſerving the Paſture of a Horſe for himſelf to ride about his Huſbandry-affairs, Tithe ſhall not be paid for the Paſture of this Horſe; but if a man keep and breed Horſes in his Paſture to ſell them, there Tithe ſhall be paid for the Paſture of ſuch Horſes. Trin. 15 Jac. B. R. Larking and Wild's Caſe. Poph. 126. Vid. Trin. 9 Jac. B. R. Pothill and May's Caſe. Bulſtr. par. 1. 171. Vid. Agiſtment. Vid. Graſs.

Peaſe gathered Green, to eat in the Pariſhioners Family, no Tithe ſhall be paid thereof, and that per legem terrae: But otherwiſe it is in caſe they be gathered to ſell, or to feed Swine therewith, in which Tithe ſhall be paid thereof. Paſch. 12 Jac. B. per Cur.

Pelts or Fells of Sheep dying of the Rot are not Tithable without a ſpecial Preſcription for it: The Caſe was, A. Libelled in the Eccleſiaſtical Court for the Tithes of Pelts and Fells of Sheep, which Sheep died of the Rot; a Prohibition was pray'd, and granted, to ſtay proceedings in the Eccleſiaſtical Court, becauſe ſuch Pelts are p. 430not Tithable, unleſs there be a Special Cuſtome for it. Trin. 3. Jac. B. R. Aſhton and Willer's Caſe.

Pheaſants that are Tame, pay a Perſonal, not a Predial Tithe. If a man hath Pheaſants, and keep them in an encloſed Wood, and clip their wings, and they hatch Eggs, and breed up young Pheaſants, no Tithes ſhall be paid of theſe Eggs or young Pheaſants, for that they are not reclaimed, but continue to be Ferae naturae, and would go out of the encloſure, if their Wings were not clipt; and in this caſe Prohibition hath been granted between Winbrook and Evans, Mich. 11 Car. B. R. It was Surmized, That no Tithes are paid of them in a great Circuit called the Chiltern in the ſame County, viz. of Bucks, and ſo Preſcribe in non Decimando; but the Court granted the Prohibition, for that they are Ferae naturae.

Pidgeons are Tithable, Mores Abr. 1270. But if a man keep a Family, and hath Pidgeon-holes about his Houſe, and he keep ſome Pidgeons, and he kill and ſpend in his Houſe the young Pidgeons that are bred there, he ſhall not pay any Tithes for them: In this Caſe between Vincent and Tutt, Hill. 13 Car. B. a Prohibition was granted, and upon the Parſons Plea, that the Pariſhioner ſold them, a Conſultation. For Tithes of Pidgeons no Prohibition lies, as was Reſolved in Jones and Gaſtrell's Caſe. Hill. 15 Jac. B. R. Roll. Rep. For the Court there ſaid, That Tithes ought to be paid of Pidgeons, and for Conies, per Doderidge Juſtice, to which the Court agreed. In the Caſe of a Prohibition for ſuing for Tithe-Pidgeons, the Defendant in the Eccleſiaſtical Court pleaded payment, they refuſe the validity of that Plea without Proof by two Witneſſes: the Court ſaid, it would be a great inconvenience to bring two Witneſſes to prove payment of every ſort of Tithes, wherefore a Prohibition was granted. Malary and Mariots Caſe. Cro. par. 1. And in another Caſe a Prohibition was prayed, where the Parſon ſued in the Eccleſiaſtical Court for Tithe of Pidgeons, and awarded to ſtand, becauſe the Court there would not allow the proof without two Witneſſes. More's Abr. Caſe 1208. Probably the ſame Caſe with the former. Vid. Doves.

Pigs, if there be but Nine, as alſo Calves, if there be but ſix, and the like, under the number of Ten in one year, the Parſon can have no Tithe thereof in kind that year, without a Special Cuſtome for it; but muſt have his Tithe pro rata either in money the ſame year, if there be any Cuſtome for it, or in kind the next year, reckoning both years together. Mich. 7 Jac. C. B. Pigs are accounted a Predial Mixt Tithes. Mich. 8 Jac. C. B.

Pits of Stone, Lime, Gravel, Marble, Marle, Chalk, Cole, and the like, are not Tithable; for the Land muſt not pay a double Tithe. Regiſt. 51. F. N. B. 53. 9. Broo. Diſmes 18.

p. 431Plants or young Plants tranſplanted, are in ſome caſes Tithable; for the Caſe was, A man had a Nurſery of young Plants in his ground, and uſed to tranſplant them, and to give or ſell them to others, who planted them de novo in their ground out of the Pariſh; the Parſon of the Pariſh, where the Land lay in which they were firſt planted, Libelled in the Eccleſiaſtical Court for the Tithes of the value of the ſaid Plants tranſplanted, and a Prohibition was granted, and Declaration thereon given, and a Plea given in, and Replication, and thereon Demurrer; and it was argued by Maynard for the Defendant, and Rolls for the Plaintiff: The only point was, Whether Tithes ſhould be paid in that caſe; it was Reſolved per totam Curiam, that it ought to be paid; and thereupon a Conſultation was grantedttHill. 14 Car. B. R. Gibs verſ. Wyborne Jones Rep.. The Caſe had been otherwiſe Reſolved, if the ſaid Plants ſo tranſplanted from the ſaid Nurſery had been replanted in the ſame PariſhuuIbid..

Preſcription, which refers to a certain perſon, Houſe, Land, or other thing, as Cuſtome doth to a County, City, Town, Hundred, &c. may be conſidered under two reſpects, either de Modo Decimandi, or de non Decimando: There is alſo in ſome Counties a Decimando res non Decimabiles, a Tithing of things in their own nature not Tithable, as the Tithing of Tin and Sea-Fiſh in Cornwal and Devon, Lead in Derbyſhire, &c. but this is by Cuſtome, not by Preſcription, which though in reſpect of Place is regularly of a more extenſive latitude than properly Cuſtome is, yet in reſpect of Perſons and Things is regularly under more Reſtrictive limitations than the other; but as to their Origination, they both ought to be continually-conſtant without interruption; and as to their Antiquity, both of them ought to be of a more Ancient date, than any Memory of man can contradict; and ſuch being once duly acquired, there are not many interruptions or diſturbances that will null or fruſtrate the ſamewwCo. par. 1. Inſt. 14. 2. par. 653, 654.. A Preſcription goeth to one man, and a Cuſtome to many. Hill. 6. Jac. rot. 2613. Rolls verſ. Maſon, Brownl. Rep. par. 1. Preſcription is Perſonal, and alwaies made in the name of a certain perſon, or his Anceſtors, or thoſe whoſe Eſtates, &c. But a Cuſtome is Local, and alledged in no perſon, but that, within the Mannor there is ſuch a Cuſtome. Co. 4. Foiſton & Cratchwood's Caſe. The payment of a Sum of money or other thing in lieu and recompence of Tithe for ſixty years or thereabouts, is held a reaſonable time to make a Preſcription xxCo. ſuper Littl. 14. & Crompt. Jur. 77. Dyer 7, 9.. It was Adjudged in Griſman and Lewes Caſe, That a Preſcription to pay Tithes of one thing in recompence of Tithes of another thing, is not good. Adjudged alſo, that Tithes ſhall be paid of Agiſtment of Cattel, againſt the Opinion of Fitz. 53. Cro. par. 1. This Preſcription is Real, that is, it reſpects not the New or never before Tithed Fruits, but the p. 432Tithable grounds that produce them; thence it is, that an alteration of Grain or Plants in the ſame Ground alters not a Preſcription, but he that Preſcribes in the one, ſhall Preſcribe in the other alſo. Yet a Preſcription extends to no more than is in poſſeſſion: And therefore if the Parſon of A. Preſcribes to the Tithes of the Pariſh of B. and there happen to be Decimae Novalium, that is, Tithes ariſing of ſuch Grounds as were never Manured, nor yielded before any profit to the Church, the Parſon of B. and not the Parſon of A. ſhall have them; nor will Preſcription lie againſt a Compoſition between the Parſon and the VicaryyMore. Caſe 1881.; nor hath Preſcription any place, where the Intereſſed (in his right) can make no demand, the matter ceaſing, whereupon it ſhould work: So of Wood never cut, the Tithe could never be demanded. Regularly a Preſcription to pay no Tithe, nor any thing in lieu thereof, is not good, nor will it diſcharge, though nothing can be proved to have been paid within the Memory of manzzDr. & St. 171. 167. Broo. Preſcrip. 92. Co. 244.. Yet a Diſcharge of Land from Tithes may be ſhewed another way, which will amount to the payment of no Tithe: ſo that although a meer Lay-man cannot Preſcribe in non Decimando aaCo. 2. par. Biſh. of Wincheſt. Caſe. & in 8 Ed. 4. 14. by Choke.; yet he may Preſcribe in modo Decimandi, to pay a Compoſition to the Parſon in lieu of all his Tithes; and ſuch Compoſition ſhall bind the Parſon, and ſuch a Preſcription ſhall be goodbbAdjudg. Mich.. But as to perſons Eccleſiaſtical, ſuch may Preſcribe not only in modo Decimandi, but alſo in non Decimando, and ſo may their Tenants, whence it is, that a Parſon of one Pariſh having part of his Glebe in another, may Preſcribe in non Decimando for the ſameccRoll. 1. 653. H. 3.. So that a Preſcription even de non Decimando as for Eccleſiaſtical perſons, their Farmers and Tenants may be goodddMore. Caſe 498, & 693.. In Naſh and Molin's Caſe it was agreed by the Court, That a Spiritual man may Preſcribe in Non Decimando. Cro. par. 1. And as for any other perſon a Preſcription de modo Decimandi, that is, to pay Money or other things in lieu of Tithes in kind, is good; and if he can prove it Time out of mind, this will diſcharge him eeCo. 1. 44, 46.. Thus a Preſcription to pay 4 d. or any other Sum for all his Tithe whatever, or for all his Tithe-Hay, or for all his Tithe-Corn in ſuch a Farm, or in ſuch a Cloſe, or for all his Fruit in ſuch an Orchard, is good. But a Preſcription of paying no Tithe-Corn, becauſe he pays Tithe-Hay; or of paying no Tithe of his Cattel, becauſe he pays Tithe-Corn, is no good PreſcriptionffH. l 8 Jac. …. R. Smith's Caſe.. Or of not paying of Tithes in one place, becauſe he pays in another; or of not paying Tithe-Lamb, becauſe he pays Tithe-Wool, vel è contra; or of not paying Tithe for other Cattel, becauſe he pays 12 d. for a Cow: theſe and the like are no good Preſcriptions gg7 Jac. C. P. in Fleewood's Caſe.. Yet a Preſcription to pay a leſs part than a Tenth, may be good and binding. Alſo a Preſcription to pay a peny, called Hearth-peny, in ſatiſfaction p. 433of Tithe for all Combuſtible Wood, may be goodhhMore. Caſe 1280.. Likewiſe, a Preſcription by the Lord of a Mannor, to pay ſix pound in ſatisfaction of all the Tithe-Corn within the Mannor, and to have the Tenth Sheaf or Cock in recompence of his payment, is good iiMore. Caſe 685.. But if the Preſcription be to be diſcharged of Tithe-Hay of ſuch a ground, or Tithe-Corn of ſuch a ground, and the Owner change the nature of the Ground, as Paſture into Tillage, or Tillage into Paſture, the Preſcription is gonekkHil. 7 Jac. B. R. Shipton's Caſe. Adj.. Yet a Preſcription is not deſtroyed by an Alteration of payment, as if inſtead of the money to be paid, another ſum, or Tithes in kind, have been paid for 20 years paſtllCo. upon Littl. 14. Dyer 7.. But a Preſcription to have Tithes of Houſes according to the Rent, is not good; for no Tithes are to be paid for Houſes in any City, ſave in London onlymmHob. 11.. Regularly Preſcription referrs to one in private, as Cuſtome does to many in publick; and where a Preſcription de modo Decimandi is denied, there a Prohibition will lie to try it at the Common Law: otherwiſe, if the Preſcription or Cuſtome be agreednnHob. 247.. If a Preſcription by a Pariſhioner be to pay the Tenth part of Corn as a Modus Decimandi for the Hay alſo that grows on the Headlands, it is not good; but ſuch Preſcription for the Corn and After-Rakings is good, with an averment, That they are ſparſae minus voluntarie ooMich. 2 Jac. B. R. Rot. 346. Caſe Parry verſ. Chaunſey. Noy. Rep.Mic 2. If there be a Preſcription of a Modus Decimandi for an Orchard or Garden, and it afterwards ceaſes to be ſuch, the Modus ſhall ceaſe alſo, and Tithe ſhall be paid in kind; but if it afterwards be reſtored to a Garden or Orchard, by being repleniſhed with Herbs or Fruit-Trees, it ſhall pay the Modus as formerlyppHil. 12 Jac. B. R. C. Hooper verſ. Andrews Rol. Rep.. If the Modus be to pay two ſhillings and the Shoulder of three Deer for a Park, the Modus remains, though the Park be diſparked; it is otherwiſe, in caſe the Modus be only to pay VeniſonqqIbid.. Or if the Preſcription be to pay a certain Sum of money for all the Tithes of a Park, the Modus ſhall continue, though the Park be afterwards diſparkedrrP. 13 Jac. B. R. C. Maſchal & Price. Rol. Rep.. A Preſcription of a Modus Decimandi generally for a Park is not good, if it be Diſparked; but it ſhall be particularly for all Acres contained in the ParkssCo. vouched in one Shibdens caſe Noy. Rep. Sharp verſ. Sharp.. Preſcription being a Temporal thing, is Triable only in the Temporal Courts; and therefore in the Caſe of Two Parſons of Two ſeveral Pariſhes, where one of them claimed Tithe within the Pariſh of the other, and ſaid, That all his Predeceſſors, Parſons of ſuch a Church, viz. of D. had uſed to have the Tithe of ſuch Lands within the Pariſh of S. and pleaded the ſame in the Spiritual Court. The Court was of Opinion, That in this Caſe a Prohibition did lie, for he claims only a portion of Tithes, and that by Preſcription, and not meerly as Parſon, or by reaſon of the Parſonage, but by a Collateral cauſe, ſcil. Preſcription, which is a Temporal cauſe and thingttVid. 35 H. 6. Bro. Preſer. 3. Mich. 29 Eliz. B. R. God b 45.. And in another Caſe it hath been Adjudged, That if a Preſcription p. 434be laid to pay a Modus Decimandi to 100 Acres, or to ſeveral things, if there be a failure of one Acre, or of one thing, it is a failure of the whole Preſcriptionuu15 Car. Sr. A th. Robinſon's Caſe. vid. Clayr. Rep §. 135.. But where it hath been Preſcribed to pay in one part of the Land, the Third part of the Tenth; and in another part, the Moity of the Tenth for all manner of Tithes, it hath been held a good Preſcription, wwHill. 29 Eliz. B. R. Books Caſe. Godb. 120.. Theſe Preſcriptions de modo Decimandi are equally incident as well to Lay-perſons, as to perſons Spiritual or Eccleſiaſtical; but as to Preſcriptions de non Decimando, none but Spiritual perſons are capable of being diſcharged of Tithes in that kind, as was Reſolved in the Biſhop of Wincheſter's CaſexxCo. 2. par. Biſh. of Wincheſters Caſe.. Yet a whole Countrey or County may Preſcribe de non Decimando, though this or that particular meer Layman cannotyyCaſe ibid. & Dr. & Stu. 167.; nor indeed can the other, unleſs there be ſufficient Maintenance for the Clergy beſideszzDr. & St. ibid.. The Preſcriptions de modo Decimandi are confirm'd by Act of ParliamentaaSt. 2 Ed. 6. c. 13.; and if any Lay-man will Preſcribe de non Decimando, to be abſolutely diſcharged from the payment of Tithes, without paying any thing elſe in lieu thereof, he muſt Found it in ſome Religious or Eccleſiaſtical perſon, and derive his Title to it by Act of ParliamentbbSeld. Hiſt. Decim. 409. Roll. 1. 653. H.; and it is not ſufficient to ſay, That they who Preſcribe de non Decimando, are Churchwardens who have Land belonging to their Church, for they are neither Religious nor Spiritual perſonsccRoll. ibid.: But they who are ſuch indeed, may ſo Preſcribe not only for themſelves, but alſo for their Tenants and FarmersddRoll. ibid. H. 4. & Co. 2. 45. a., as was formerly ſaid. So alſo may the Kings Patentees of thoſe Abbey-Lands that came to the Crown by the Statute of 31 H. 8. Preſcribe de non Decimando, by force of the ſaid Statute, if ſo be it may be proved, That they have beyond the Memory of man ſo enjoyed the Lands diſcharged from the payment of Tithes: But for a Pariſhioner to Preſcribe to Non-payment of Tithes, becauſe he hath Time out of mind repaired the Church, is no good Preſcription: otherwiſe, in caſe he had repaired the Chancel, and in conſideration thereof had been quit of Tithes; the Reaſon is, becauſe the Parſon not being obliged to repair the Church, hath no recompenceccRoll. 1. 649. d. 8, 9. vid. Law of Tithes, c. 16.. And in Sherwood and Winchcombs Caſe it was Reſolved, That a man cannot Preſcribe to have Tithes as parcel of a Mannor, for that they are Spiritual; but a Preſcription to have Decimam partem granorum, is good. Cro. par. 1. In a Caſe for a Prohibition; A. Libelled in the Eccleſiaſtical Court for Tithes of rough Hay growing in Marſhes and Fenny-grounds in M. The Plaintiff Surmized, That there was 2000 Acres of Fenny-Lands within the Pariſh, and 600 Acres of Meadow, and that the Pariſhioners paid Tithes of Hay and Grain, growing upon the Meadow and Arable Land, and had paid a certain Rate for every Cow, and becauſe they had not ſufficient Graſs to keep their p. 435Cattel in Winter, they uſed to gather this Hay, called Fenny-Fodder, for the ſubſiſtance of their Beaſts for the better increaſe of their Husbandry; and for this cauſe had been alwaies freed from the payment of the Tithes thereof. It was Reſolved, That the Surmize was not ſufficient for a Prohibition; for one may not Preſcribe in non Decimando, and their alledging, That they beſtowed it on their Cattel, is not a cauſe of Diſcharge: A Conſultation was awarded. Webb and Sir Hen. Warners Caſe. Cro. par. 1. Alſo in Munday and Levice's Caſe in a Prohibition, it was Adjudged, That it was not a good Preſcription that Inhabitants have uſed to pay Calves and Lambs, and a peny for every Milch-Cow, in ſatisfaction of all Tithes of Lambs, Calves, Milch-kine, and all Barren and other Beaſts, and Agiſtments. More's Rep. And where a Parſon ſued for Tithes of Fodder, and the Pariſhioners Preſcribed in Non Decimando, becauſe the Fodder was for their Cattel which manured their Land: It was held no good Preſcription; but it was Agreed, Tithes ſhould not be paid for their Agiſtments, nor for Hedge-wood to encloſe the Corn, nor for Fuel. More, ibid. Caſe 892. In the Caſe between Pigott and Hearne, the Lord of the Mannor of B. in the Pariſh of D. did Preſcribe, That he and his Anceſtors, and all thoſe whoſe Eſtates, &c. had uſed from time to time, whereof, &c. to pay to the Parſon of D. the now Plantiff, and his Predeceſſors 6 l. per Ann. for all manner of Tithes growing within the ſaid Pariſh; and that by reaſon thereof, he and all thoſe whoſe Eſtates, &c. Lords of the ſaid Mannor, had uſed time whereof, &c. to have Decimam Garbam & decimum Cumulum Garbarum of all his Tenements within the ſaid Mannor. It was in this Caſe Reſolved, (1) That it was a good Preſcription, and that a Modus Decimandi for the Lord by himſelf, and all the Tenants of his Mannor, for barring the Parſon to demand Tithes in kind, is a good Preſcription, becauſe it might have a lawful Commencement. (2) It was Reſolved, That it was a good Preſcription to have Decimam garbam & decimum Cumulum garbarum vel granorum, or the Tenth ſhock; for he hath it as a Profit Appender, and not as Tithes. (3) Reſolved in this Caſe, That if the Queen be Lady of the Mannor, ſhe may Preſcribe to have Tithes, for that ſhe is capable of them, ſhe being Perſona Mixta & Capax Spiritualis Juriſdictionis. More's Rep. And in Green and Handlyes Caſe it was Reſolved, (1) That it is a good Cuſtome to pay the Tithe-Wool at Lammaſsday, though it be due upon the clipping. (2) That for the Paſturage of young Barren Cattel preſerved for the Plough and Pail, no Tithe ſhall be paid. (3) That a Preſcription to pay a peny called a Hearth-peny, in ſatisfaction of the Tithe of all Combuſtible Wood, is a good Preſcription. More. Caſe 1213.

p. 436Priviledge is derived from the Supream Authority upon good Conſideration, and referrs ſometimes to Perſons, ſometimes to Places, and is an exemption from Tithes derived from ſuch Supream Authority. None are to pay Tithes for Lands priviledged or lawfully diſcharged from the payment thereof. Stat. 2 Ed. 6. c. 13. yet ſuch Priviledges as are meerly Perſonal, do not exempt Lands from the payment of Tithes, longer than they are in the hands or occupation of Priviledged perſons.

Q

QVarries of Stone are not Tithable. Adjudged Mich. 19 Eliz. B. R. & Paſch. 34 Eliz. C. B. Liff and Watts Caſe. Cro. par. 1. & More's Rep. Nor do the Quarries of Slate, Cole, or the like pay any Tithe. More. Caſe 1275. Nor Quarries of Lime, Gravel, Sand, or Clay, for theſe are parcel of the Inheritance. Regiſt. 55. F. N. B. 53. Broo. Diſmes 18. Mich. 15 Car. B. R. Skinner's Caſe. No Tithes ſhall be paid of Quarries, for they are parcel of the Freehold. Hill. 11 Jac. B. R. per Curiam.