Abridgment of Ecclesiastical Laws, Treatise · Chapter 32 · Part 10 – Part 11
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MAſt of Oak or Beech, if ſold, the Tenth-peny is payable for the Tithe therof; but if eaten by Swine, then the Tenth of the value or worth thereof.
Meadows by ill husbandry over-run with Thorns, Buſhes, and the like, are not computed as Barren Lands, but do ſtill remain Tithable. Hill. 38 Eliz. B. R. Sherington and Fleetwood's Caſe. Vid. 15. Car. B. R. Sugden and Cottle's Caſe.
Mills, the Tithe thereof, as alſo of Parks, Ponds, Warrens, Dovecoats, and Bees, ſeem primo intuitu, as if they were all Predial Tithes. For the Tithe of Mills, not the Tenth peny-Rent, but the Tenth Meaſure of Corn grinded at the Mill, is reſponſible for the Tithe; underſtand it of Corn-Mills, whether new or old, driven by Wind or Water; for the Tithe whereof generally the Tenth Toll-diſh is due, if there be not ſome other Cuſtome in the place. And whereas by the Law and the ancient Conſtitutions of the Church Tithes were not paid of Ancient Mills, yet by the Statute of Articuli Cleri, cap. 5. Tithes are to be paid for all Mills newly erected: ſo that de Molendino de novo Erecto Tithes ſhall be paid. Trin. 14. Jac. B. R. So that all new Corn-Mills, be they Wind or Water-Mills, alſo Fulling-Mills, Paper-Mills, Powder-Mills, Stamping-Mills, (and probably for the ſame reaſon Saw-Mills) Iron-Mills, and all others that are of Common and Publick uſe, do pay Tithes; but old Corn-Mills, for which no Tithe was ever paid, no Tithe is to be paid, except a Perſonal Tithe, as is for a Trade of profit: And ſuch Tithe ſhall be paid of Fulling-Mills, Rapt-Mills, Paper-Mills, Iron-Mills, Powder-Mills, Lead-Mills, Copper-Mills, and Tin-Mills; for ſuch Mills pay no Tithe as Mills, becauſe they are but Engines of their occupation, Paſch. 17. Jac. Johnſon's Caſe. & Cro. 2. 532 & Bulſtr. 3. 212. & Fitzh. N. B. 41. G. & Co. 2. 44. only the Millards are to pay a Perſonal Tithe, as aforeſaid, as for a Handicraft, or Faculty. Therefore a Fulling-Mill as ſuch pays no Tithe. Hill. 16 Jac. B. R. between Dawbridge and Johnſon, Parſon of Buckfield. For there being a Fulling-Mill, which Fulled 40 Clothes a week, and gained two ſhillings for every Cloth: It was held, that there was no Tithe to be paid thereof. Cro. 2. Abridg. Caſe 2638. But a Corn-Mill newly erected, though upon Land diſcharged of Tithes by the Statute of Monaſteries, muſt pay Tithes; and ſo of every new erected Mill on a mans own ground. Ibid. Caſ. 1522. Notwithſtanding the Premiſſes it ſeems ſomewhat queſtionable, whether any Tithes are due for Mills de jure, or not; for the Lord Coke. Inſtit. 2. par. 622. ſays, It was never Judicially determined that ever he knew of. If Mills do not yield a Predial Tithe, yet doubtleſs the Millards are to yeild a Perſonal Tithe, as well as other Handicrafts-men, but Cuſtome in this, as in other caſes prevails. It hath been Adjudged Trin. 18. Jac. B. R. That where a Parſon Libelled in the Eccleſiaſtical Court for Tithes of a Mill, which was erected upon Lands which were diſcharged from payment of Tithes by reaſon of Priviledge within the Statute of 31 H. 8. That a Prohibition would not lie in that caſe: for that De Molendino de novo Erecto Tithes ought to be paid. Mich. 15 Eliz. in Hapers Rep. acc. But in the other Caſe of the Fulling-Mill aforeſaid, where the Parſon Libelled in the Eccleſiaſtical Court for the Tithes thereof, and ſuggeſting, that the Miller Fulled every week 40 Clothes, as aforeſaid, and gained two ſhillings of every Cloth, demanded Tithes for them: A Prohibition was granted in that caſe; for it was ſaid by the Juſtices, That by the Law of the Land he ought not to pay Tithes of ſuch Mills; for of ſuch things as come only by the Labour of men Tithes are not payable, but of things which are renewable every year. dict. Caſ. Dawbridge & Johnſon. Cro. par. 2. 523. And in another Caſe, where a man Libelled to have Tithes of Mills upon a Suggeſtion of a Modus Decimandi for the ſame, a Prohibition was granted: In that Caſe it was ſaid by Coke Chief Juſtice, That in ſome caſes Tithe is payable for Mills, and in ſome caſes not. No Perſonal Tithes by the Statute is to be paid of Mills, but where by ſpecial Uſage the ſame hath been paid; and whereas a Modus Decimandi was alledged to pay Tithes for Mills, it was Reſolved, That the Modus did not extend to Mills newly erected, upon the Statute of Articuli Cleri; for De Molendino de novo erecto ſolvuntur Decimae. Trin. 14 Jac. B. R. Jake's Caſe. Bul…r. pa. 3. 212. If two Fulling-Mills be under one Roof, and a Rate-Tithe paid for … Mills, and after you alter theſe Mills, and make one of them a Corn-Mill, the Rate-Tithe is gone, and you muſt pay Tithes in kind. Brownl. pa. 1. Caſes in Law. If there be two ancient Corn-Mills time out of mind, &c. for which 6 s. 8 d. have been paid for the Tithes time out of mind, &c. and after in continuance of time the Mill-Stream doth change his courſe, and goes another way at a little diſtance from the ancient Stream, and thereupon the Owner of the Mills pulls down one of the ancient Mills, and new builds it in that other place where the Stream now runs: In this caſe it ſhall be diſcharged of any Tithes by force of the ancient Modus, for that happened by the act of God, and not by the act of the party; and Prohibition was granted accordingly, Mich. 11 Car. B. R. Johnſon and Dawbridge's Caſe, Reſolved Per Curiam. But withal the Court held, that if the Stream had been altered by the Owner, Tithes ought to have been paid as of a new Mill. In another Caſe it being Libelled in the Eccleſiaſtical Court for Tithes of a Griſt-Mill and of a Fulling-Mill, Crook agreed, That for a Griſt-Mill Tithes ſhall be paid; but he ſaid, That the Statute De Articulis Cleri, which ſpeaks de Molendinis non fiat Prohibitio, ought not to be meant or intended of a Fulling-Mill, for the profit that accrues by that, is by the Labour of men, and therefore not intended within the general words of the Statute De Molendinis, for which reaſon he prayed a Prohibition. Calthroppe ſaid, that it was the opinion of Juſtice Warburton and Nicholls, 12 Jac. That Tithes ſhall be paid of Fulling-Mills, viz. the Tenth-peny of the gain or profit; but of Griſt-Mills the Tenth-diſh of Corn ſhall be paid, for that is in the nature of a Predial Tithe: And ſo it was held 5 Jac. in the Caſe between Vbi and Lux, Vid. Lindw. Provin. Conſtit. But yet Doderidge held, That if there be not a Special Cuſtome alledged for the payment of Tithes of a Fulling-Mill, Tithes ſhall not be paid thereof; for he had ſpoken (as he ſaid) with the Civilians, who held that Tithes ſhould be paid of ſuch a Mill; but they could not agree what manner of Tithe it is, for ſome ſaid it is a Predial Tithe, Others, that it is a Perſonal Tithe; but he ſaid it could not be a Predial Tithe, for it wholly accrues by the Labour of man; and if ſo be that he ſhould have that Tithe as a Predial Tithe, then another Tithe would be demanded of him who Sheers the Cloth, and alſo of the Dyer thereof, and ſo Tithes ſhould be paid many times for the ſame Cloth: But the Uſage or Cuſtome of the Countrey is to be conſidered. And for Tin-Mills, or Lead-Mills, or Plate-Mills, Ragg-Mills, or Edge-Paper-Mills, no Tithes ſhall be paid; and to this agreed Doderidge, Houghton, and Croke: And therefore as to the Griſt-Mill, a Conſultation was granted, and as to the Fulling-Mill, there was a Prohibition. Paſch. 17 Jac. B. R. Roll. Rep. par. 2. A Parſon Libelled in the Eccleſiaſtical Court for Tithes of a Mill, which was erected upon Lands diſcharged of Tithes by the Statute of Monaſteries, 31 H. 8. A Prohibition was prayed, but denied by the Court; for de molendino de novo Erecto non jacet Prohibitio. Trin. 15 Jac. B. R. Cro. par. 2. Alſo in another Caſe where it was moved for a Prohibition, upon a Suggeſtion of a Modus, to pay ſo much by a Cuſtome for all Mills erected, or to be erected, and this appearing to be a New-erected Mill: Whether the Cuſtome ſhall run to this or not upon the Statute of Articuli Cleri, c. 5. was the Queſtion. Coke Chief Juſtice, This Modus cannot go to this new Mill; for an ancient Mill your Modus ſhall be allowed, but not for the Mill newly erected, the Cuſtome will not extend to it; and therefore by the Rule of the Court, for this new Mill a Conſultation was granted.
Mill-ſtones, if one pair thereof be turned into two pair, both of them ſhall pay Tithe, and their Priviledge (if they had any) will be loſt. Paſch. 17 Jac. Johnſon's Caſe, & Fitzh. N. B. I. G. Co. 244. Brownl. 1. 31. So that if there be but one pair of Mill-ſtones in a Mill, and a Rate-Tithe be paid for them, if afterwards there be another pair of Mill-ſtones put on, now Tithes muſt be paid in kind. Brownl. ibid.
Milk paying Tithe, exempts the payment of Tithe-Cheeſe made of the ſame Milk. Et è contra.
Mines or Minerals of Iron, Braſs, Tinn, Lead, Copper, Coles, and the like, are not Tithable. Regiſter 51. F. N. B. 53. 9. Broo. Diſmes 18.
Mixt Tithes are of the profits of ſuch things as ariſe partly from the labour and care of men, and partly from the Earth whereof the things are; and ſometimes are called Predial Mediats, and come not immediately of the Ground, but of things maintained out of the Ground, as Cattel, Calves, Lambs, Kids, Wool, Milk, Cheeſe, Chicken, Geeſe, Ducks, Swans, Eggs, &c. Mixt Tithes are properly ſuch as come of Milk, Cheeſe, &c. Or ex foetibus animalium, quae ſunt in paſcuis, & gregatim paſcuntur, ut in Agnis, Vitulis, Haedis, Caprcolis, Pullis, &c. Coke, Magn. Chart. 649.
Modus Decimandi is the payment of ſomething in lieu of the juſt and full Tithe of a thing Tithable, legitimated by Compoſition, Cuſtome, or Preſcription; it is when Lands, Tenements, or Hereditaments have been given to the Parſon and his Succeſſors, or an Annual certain Sum, or other Profit alwaies time out of mind to the Parſon and his Succeſſors, in full ſatisfaction of all Tithes in kind in ſuch a place; and all Preſidents in Prohibitions in diſcharge of Tithes in caſe De modo Decimandi run thus, viz. That ſuch a Sum had been alwaies paid in plenam Contentationem, Satisfactionem & Exonerationem omnium & ſingularum Decimarum. And although the Sum be not paid, yet cannot the Parſon ſue for Tithes in kind; not for the Tithes in kind in the Eccleſiaſtical Court, but for the money in the Temporal. Trin 7 Jac. in the Caſe De modo Decimandi Prohibitions debated before the K. Coke, Select. Caſ. 40, & 46. In Biggs Caſe it was Reſolved, where a Prohibition is awarded upon a Suggeſtion of a Modus Decimandi, and a Conſultation awarded for not proving the Suggeſtion within Six months, there a new Prohibition ſhall not be awarded upon an Appeal in the ſame Suit. More 1234. This Modus Decimandi refers only to the Reality, viz. the Tithes, and not to the Perſonalty, viz. the OfferingspMarch. 8 ….. Nor can it begin at this day, but is and muſt be by Preſcription, and is intended to have a lawful commencement upon ſome Agreement at firſt made for valuable Conſideration with the Parſon or VicarqMich 6 Jac. C. B. Mildman and Hut on's Caſe.. And if the Modus Decimandi be to pay a Sum of money for the Tithe of a piece of Ground, which is after turned to Houſes and Gardens, the Modus continuerCo. 11. 16.. Yea, it doth ſo actually diſcharge and extinguiſh Tithes, that they are thereby turned into a Lay-Fee, as well as the Nine partssHob. 42. & Benloes 169.. Touching this Modus Decimandi there are ſome things that ſeem doubtful and unreſolved in the Law; as if the Modus be of Land given to the Parſon in ſatisfaction of Tithes, and the Land after happen to the evict, Q. if the Tithes in kind do not in ſuch caſe revive?tCaſe Hooper verſ. Andrews. Roll. Rep.. Or if Lands be once diſcharged of Tithes by a Modus Decimandi, Q. whether the Tithes ſhall revive again upon failure of the Modus? uVid. Hob. 39.But if Land be granted to the Parſon in ſatisfaction of Tithes, if the Parſon alien the ſame without the conſent of the Patron and Ordinary, his Succeſſor ſhall have Juris Vtrum wdict. Caſ. Hooper verſ. Andrews.If a man Preſcribe to pay a Modus Decimandi for the Tithe of certain Lands, if the Land be afterwards lett to Farm, and the Farmer pay the Tithe in kind, yet it ſhall not deſtroy the Preſcription as to the LeſſorxPaſch. 13 Jac. B. R. Caſe Maſcall and Price. Roll. Rep.. If a Leſſee pay Tithes in kind, yet that ſhall not deſtroy a Modus in the Leſſor*Paſc. 13 Jac. per Coke. ibid.. But if the Modus Decimandi be of a thing for which no Tithe is due de Communi jure, it is not good; nor can it ſtand to riſe and fall according to the Rent by Preſcription: as of Houſes in London yHob. 1….. That the Trial of Modus Decimandi (as the Common Lawyers affirm) belongs to the Temporal, not the Spiritual Courts, and for the grounds of Prohibitions in ſuch caſe†Vid. The grand diſpu…a before the K. between the Judges of both Laws. Trin. 7 Jac. Co. lib. 3.. If the Eccleſiaſtical Court allow not of any ſuch thing as a Modus Decimandi, it is becauſe the Canoniſts do hold Tithes to be due Jure Divino, and conſequently not extinguiſhable in the whole, nor diminiſhable in part by any Cuſtome or Preſcription in oppoſition to the Law of God. The Temporal Courts will admit them alſo to be Jure Divino, but do allow if ſo only Secundum quid, viz. quoad ſuſtentationem Cleri, but not quoad Decimam aut aliquam aliam certam partem; and therefore do admit of a Modus as to the quantum, where there is a ſufficient maintenance for the Clergy beſides; which is not only allowed, but alſo confirmed by Act of Parliament*St. 2 Ed. 6. c. 13.. So that if the Lord of a Mannor grants parcel of his Mannor to a Parſon in Fee to be quit and diſcharged of Tithes, and makes an Indenture, and the Parſon with the aſſent of the Ordinary (without the Patron) grants to him, that he ſhall be diſcharged of Tithes of his Mannor for that parcel of Land; if afterwards the ſaid Lord of a Mannor or his Aſſigns be ſued in the Eccleſiaſtical Court for Tithes of his Mannor, he or his Aſſigns ſhall have a Prohibition upon that Deed; and therefore, if the Lord of the Mannor hath alwaies holden his Mannor diſcharged of Tithes, and the Parſon had time out of mind Lands in the ſame Pariſh of the Gift of the Lord, of which the Parſon is ſeiſed at this day in Fee, in reſpect of which the Parſon nor any of his Predeceſſors ever had received any Tithes of this Mannor: If the Parſon now ſueth for Tithes of this Mannor, the Owner of the Mannor ſhall ſhew that Special matter, that the Parſon and his Succeſſors time out of mind have holden thoſe Lands of the Gift of one who was Lord: and the ſame is good Evidence to prove the Surmize in the Prohibitiona5 Jac. C. B. in the Caſe of Vodus Decima…di. Coke … Caſes 14, & 46.. And in another Caſe of a Modus Decimandi it was holden by the Court, That if a Modus Decimandi be for Hay in Black-Acre, and the party ſoweth the ſame with Corn ſeven years together, the ſame doth not deſtroy the Modus Decimandi; but the ſame ſhall continue when the ſame is made again into Hay: And when it is ſowed with Corn, the Parſon ſhall have Tithen in kind, and when the ſame is Hay, the Vicar ſhall have the Tithes-Hay, if he be endowed of HaybTrin. 10 Jac. C. B. Brown's Caſe. God b 194.. And where a Suit was in the Spiritual Court by a Defendant Vicar of A. for Tithes: a Prohibition was prayed upon the Plaintiffs Plea there of a Modus Decimandi, to pay ſo much yearly to the Parſon of A. in diſcharge of his Tithes. It was the Opinion of the Court, That this Modus between him and the Parſon will not diſcharge him from payment of Tithes to the Vicar, and therefore the Court granted a ConſultationcMich. 14 Jac. C. B. Winter and Childs Caſe. Bulſtr. 3. par. 220, 221.. Alſo if a Preſcription be 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 PreſcriptiondAdjudg'd 15 Car. in Sir Arthur Robinſon Caſe. C…aytons Rep. … 135..
Monaſteries under 200 l. per Ann. commonly called the Leſſer Monaſteries, of the Order of Giſtertians and Praemonſtratenſes, that were Diſſolved and came to the Crown by the Statute of 27 H. 8. were not diſcharged of the payment of Tithes by the Statute of 31 H. 8. c. 8.e…es 373. 188. by which Statute thoſe of 200 l. per Ann. and upwards, commonly called the Greater Abbies, were Diſſolved; and whereby it is Enacted, That the King and his Patentees, having any Monaſteries, &c. or any Mannors, Lands, &c. belonging to them, ſhould enjoy the ſame diſcharged of the payment of Tithes in as ample manner as the ſaid Abbots, &c.fSt. 31 H. 8. cap. 8. who were diſcharged of Tithes either by Bulls, Compoſitions, Preſcription, Order, or Unity of Poſſeſſion. And albeit the Lands of the ſaid Leſſer Monaſteries are not within the benefit of the ſaid Statute of 31 H. 8. to be quit of Tithes; yet they ought to enjoy all ſuch Priviledges as are annex'd to the Lands,Vid. Sir Sim. D…gee's Law of Tithes. chap. 21. for which reaſon they ſhall (in whoſe poſſeſſion ſoever they are) be exempted from the payment of Tithes by real Compoſitions and Preſcriptions de Modo Decimandi, though not by Preſcriptions de non Decimando, Unity of Poſſeſſion, Order, or Popiſh Bulls, in all which Caſes the Parſons and Vicars have the advantage by the Diſſoltion of all thoſe Monaſteries and Abbies, which were Diſſolved by the Statute of 27 H. 8. For theſe Leſſer Monaſteries under 200 l. per An. which were (as aforeſaid) Diſſolved by the Statute of 27 H. 8. loſt their Priviledge of being diſcharged of the payment of Tithes. Nor did the Priviledge extend to any Lands, other than ſuch as they had at the time of the Council of Lateran, and only for ſuch time as the ſame remained in their own poſſeſſions, and only for ſuch Lands as were in their own manuranceg18 Eliz. Dyer 349. Co. 2. par 44.. It is ſaid in Dickenſon's Caſe againſt Greenhowe. That Monks are not of Evangelical Prieſthood, viz. capable of Tithes in pernancy, but meer Lay-men, and cannot preſcribe in non Decimando. And that Bede ſaith of them, That they are meer Laici, and the Monks of the Order of Praemonſtratenſes were ſuch, and therefore they could not Preſcribe to be Diſcharged of TitheshHill. 1 C…r. B. R. in Dichenſon & Greenhowe's Caſe. Poph. 157..
Mortuaries, in ſome place called Coarſe-Preſents, though they are not Tithes, yet they were given Pro Recompenſatione ſubtractionis Decimarum Perſonalium, nec non & Oblationum. Lindw. c. Statutum & infra, &c. for which reaſon they are not here omitted out of this Catalogue of Tithes. Mortuaries (as Sir Edw. Coke conceives) were not anciently due otherwiſe than by Cuſtome onlyiCo 2. par. Inſtit. 491., until they were ſettled by the Statute of 21 H. 8. cap. 6. whereby it is Enacted, That no man dying poſſeſſed of Goods under the value of 6 l. 13 s. 4 d. ſhould pay any Mortuary, nor any to be paid, but in ſuch places where they uſed ſo to be, and that but one Mortuary; nor that, but in one place, and that where the party deceaſed had his moſt conſtant abode, and uſual dwelling and habitation, after the rate following, viz. 3 s. 4 d. where the Deceaſed had in Moveables (his Debts firſt paid) to the value of 6 l. 13 s. 4 d. and under 30 l. at his death. 6 s. 8 d. if he died poſſeſſed of Moveables to the value of 30 l. and under 40 l. 10 s. if to the value of 40 l. or upwards. And none to be paid by any married Woman, Child Non-Houſekeeper, Wayfaring-man, or Non-Reſident in the place where he died. Which Statute provides, That accuſtomed Mortuaries ſhould be paid as formerly, whether more or leſs than is before limitedkSr. 21 H. 8. c. 6.. There were alſo it ſeems certain Mortuaries, which the Prelates anciently paid to the Kings of this RealmlCo. Inſt. 2. par. 491..
A Mortuary is not properly and originally ſaid to be due to an Eccleſiaſtical Incumbent, Parſon, or Vicar, from any but thoſe only of his own Pariſh, to whom he miniſtreth Spiritual Inſtruction, and hath right to the Tithes.Vid. Spelm. Judicious Conjecture upon this point of Mortuaries, in his Treatiſe De Sepultura pag. 35. Lindwood in his Gloſs on c. Statutum, ver. ut infra, de Conſuetud. diſcovers the ground or reaſon of that payment to be this, viz. That when through ignorance, and ſometimes through negligence, and unjuſt detention of Tithes and Oblations the Pariſhioner was found tardy and faulty, &c. Ideo ſtatuit Archiepiſcopus, quod Compenſatione ſic ſubtractorum, ſecundum melius Animal defuncti Eccleſiae damno debuit applicari. But all this notwithſtanding, we know the prevalency of Cuſtome to be ſuch, that in ſome places of this Kingdom they are paid to the Incumbents of other Pariſhes, that perform no Miniſterial duties at all to the deceaſed party, nor living nor dying. And the Statute of 21 H. 8. c. 6. doth nothing at all controll the courſe, but makes the Uſage of payment only to be the Law thereof.
In the Caſe of a Prohibition, becauſe the Defendant ſued in the Conſiſtory Court of Cheſter, before the Commiſſary, for a Mortuary, after the death of every Prieſt withint the Archdeaconry of Cheſter, Hinde and the Biſhop of Cheſters Caſe. Cro. par. 3.the beſt Horſe or Mare, his Saddle, Bridle, Spurs, his beſt Gown, his beſt Signet or Ring, his beſt Hat, his beſt upper Garments under his Gown, as to the Biſhop, de debito conſuetudine fore ſupponitur, and recites the Statute of 21 H. 8. concerning Mortuaries. The Plaintiff averred, that there was no ſuch Cuſtome there, and that ſhe had paid a Mortuary to the Parſon of B. and that after a Prohibition the Defendant had proſecuted his Suit in the Eccleſiaſtical Court. The Queſtions were, (1) Whether there was a Cuſtome in that place, to give ſuch things for Mortuary? and this to be a juſt cauſe to have Prohibition; Mortuaries being only Triable in the Eccleſiaſtical Court. (2) Whether Conſultation ſhall be granted without anſwering the Prohibition. The Court was divided in Opinions, wherefore ordered the Defendant ſhould Plead or Demurr, and then the Court would give Judgment upon the Return before them.
N
NAg or Riding Nag; if a man keep a Nag or Horſe within the Pariſh only for his Saddle to ride on, no Tithes ſhall be paid of that Nag or Horſe, for that it is a Barren Beaſt, not renewing, but kept only for Labour;Trin. 15 Jac. B. R. Lamkin Parſon of Tbimblethorpe and Wild… 's Caſe. and ſo Adjudged in the Parſon of Thimblethorpe's Caſe, where the Caſe was, That a man Leaſed out certain Lands to another, reſerving to himſelf the running of a Nag for his own Riding; and after the Leſſor was ſued in the Eccleſiaſtical Court for the Tithes of that Nag, and a Prohibition was granted by Mountague, Crook, and Doderidge, for that it is a Barren Creature, and uſed only for Riding, (and although it was urged at the Bar, that the Leſſee paid him Tithes for all the Herbage; but the Court took no advantage of that.) But Houghton ſeemed è contra; for it ſeem'd to him, That no Barren Cattel ſhould be diſcharged of Tithes, other than ſuch as are uſed for Husbandry. But that was not uſed for Husbandry,Cro. par. 2. Ergo, &c. And in the Caſe of a Prohibition between Hampton and Wilde: It was Reſolved, That Tithes ſhall be paid for Paſturage of a Gelding for his Saddle, or if it be ſold; but not for Horſes uſed only for Labour.
In a Prohibition the Caſe was, M. the Defendant being Parſon of D. did Libel in the Eccleſiaſtical Court for the Tithes of Sylva Caedua, and of the Herbage for depaſturing of his Geldings: The Plaintiff there ſhewed, that they were his Hackney Geldings, which he kept for his pleaſure, and for himſelf and his Servants to ride upon, being his Saddle Horſes: and this Plea being there refuſed, for this cauſe he prayed a Prohibition: The whole Court was clear of Opinion, That here was good cauſe for a Prohibition, for that theſe Horſes are not Tithable, nor any Tithe-Herbage is to be paid for them; otherwiſe it were, if they had been Cart-Horſes, which he had to Till his Ground, or for Cattel bought, and Fatted to ſell again for gain; for theſe he ought to be anſwerable to the Parſon for the Herbage of them, but not for the Herbage of his Geldings by him kept and uſed only for his Pleaſure; but it was for working Horſes, for the Cart or Plough, or for Fat Cattel, bought and and Fatted to ſell again,Trin. 9 Jac. B. R. … verſ. May. Bulſtr. par. 1. of ſuch Cattel allowance is to be made for their Herbage, becauſe that a Profit doth come in by them; but otherwiſe it is of Saddle-Horſes: the whole Court agreed in this, and therefore in this Caſe, by the Rule of the Court, a Prohibition was granted.
Nurſeries of young Trees and Plants pay Tithes: If a man be ſeiſed of Land within a Pariſh, which uſed to pay Tithes, and a Nurſery be made thereof for young Trees and Plants of divers kinds of Fruit, as Apples, Pears, Plums &c. Alſo of Aſh, &c. and after ſell divers of them to Strangers out of the Pariſh to be tranſplanted, he ſhall pay Tithes of that Nurſery to the Parſon; for although the young Trees are parcel of the Freehold, ſo long as they continue there, yet when they are tranſplanted, they are ſevered and taken from the Freehold; and if that ſhould be permitted without payment of Tithes, the Parſon might be defeated of the Tithes of all the Land in the Pariſh, by converting them into Nurſeries. Hill. 14 Car. B. R. Gibbs & Wiburne Adjudg. per Cur. upon a Demurrer and a Conſultation granted accordingly. Intrat. Mich. 14 Car. Rot. 75. Cro. par. 3.