Abridgment of Ecclesiastical Laws, Treatise · Chapter 32 · Part 15 – Part 16
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RAkings of the Stubble of Corn or Grain are not Tithable, for they are to be left for the Poor and Orphans, and the Law will not give to the Parſon or Vicar Tithe of that which is appointed for Alms. Mich. 6 Jac. C. B. Smith's Caſe. & Paſch. 7 Jac. C. B. Adjudg. Cro. 1. 660. So that whereas it is ſaid, that the Rakings of the Stubble of Corn is not Tithable, where the Corn it ſelf was Tithed. More. Caſe 433. It may not be underſtood as if the Tithing the Corn it ſelf were the Reaſon why the Rakings are not Tithable, but becauſe they are by the Law of Moſes fLev. 23. 22.. due to the Poor, and therefore not to be Tithed; underſtand this alſo of Ordinary Rakings not voluntarily ſcattered, for of ſuch only it is that no Tithes ſhall be paid, as not due by the Levitical Law, and for that they are but the ſcattering of the Grain whereof he had paid Tithes before. Paſch. 7 Jac. B. per Curiam. Hill. 8 Car. B. R. Saunders & Paramour, per Cur. Trin. 3 Jac. B. R. Paſch. 14 Jac. B. R. Pitt and Harris, Prohibition granted; otherwiſe it is, in caſe the Rakings were voluntarily and fraudulently ſcattered. Hill. 14 Jac. B. R. Peck and Harris per Cur. Adjudged. Mich. 3 Jac. B. R. per Popham. Paſch. 7 Jac. per Cur. Mich. 14 Jac. B. R. Joyſe & Parker. And where there is a Prohibition of Tithes of Rakings, the Suggeſtion ought to be, That they were Minus voluntarie ſparſae, otherwiſe it is not good; for it is not ſufficient to ſay, That they were Lapſae & diſſipatae in Collectione. Dict. Caſ. Peck & Harris. Cro p. 1.. And it was Reſolved in Johnſon and Awbrey's Caſe, That Tithes are not to be paid for After-paſture of Land, nor for Rakings of Corn. Alſo in Green and Hunn's Caſe, a Prohibition was for ſuing for the Tithes of Rakings of Barley, a Preſcription to make the Barley into Cocks being alledged, and to pay the Tenth Cock in ſatisfaction of all Tithes of Barley, and Adjudged a good Preſcription. Notwithſtanding in the Caſe between Bird and Adams, in a Prohibition to ſtay a Suit in the Eccleſiaſtical Court for Tithes of the Rakings of Lands, after the Crop of Corn was taken away: It was held, That the Prohibition would not lie, but that Tithes ſhould be paid of Rakings. More's Rep. But vid. 42 Eliz. B. R. in Green and Hale's Caſe, it was Adjudged, That by the Cuſtome of the Realm Tithes ſhould not be paid of Rakings. Alſo in Green and Handlye's Caſe it was Reſolved, That Tithes ſhould not be paid of the Rakings of Corn, unleſs it be a Covinous Raking to deceive the Parſon. More. Caſe 1213.
Rate-Tithe is that which is paid according to the Cuſtome of the place, for the Feeding of Sheep and all other Cattel (except Labouring Oxen and young breed of Cattel) for the Paſture and Increaſe thereof, whether they fed on the Common or elſewhere.
Roots of Coppice-Woods grubbed up, ſhall not pay Tithe, unleſs it be by Cuſtome, as hath been Adjudged in Skinner's Caſe. Mich. 15 Car. B. R. & Marſh. 58. In which Caſe it was alſo Reſolved, That if a man cut a Coppice-wood, and thereof pays the Tithe, and after before any new Sprouts grow, he grubbs up the Roots and Stubbs of the Wood, he ſhall not pay Tithes thereof, for they are parcel of the Free-holdgdict. Caſ. Bedford & Dr. Skinner. per Cur..
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SAffron pays a Predial Tithe, and is inter Minutas Decimas, as appears by Bedingfield and Feaks Caſe, Paſch. 38 Eliz. B. R. Where the Farmer of a Parſonage ſued in the Eccleſiaſtical Court for Tithes of Saffron againſt the Vicar: the Vicar pleaded, That he and his Predeceſſors Time out of mind had had the Tithe of all Saffron growing within the Pariſh. The Plaintiff pleaded, That the Land where the Saffron was growing this year, had been for 40 years before ſowed with Corn; and becauſe they in the Eccleſiaſtical Court would not allow the Plea, a Prohibition was prayed; becauſe the Right of the Tithe did come in debate. It was Adjudged, That a Conſultation ſhall be awarded. Yet Mich. 10 Jac. B. R. per Curiam, they are ſaid to be Great Tithes. Vid. Bedingfield & Feaks Caſe. Cro par. 1. Whence it may be obſerved, That by the Eccleſiaſtical Law, the Vicar ſhall have Tithe of Saffron of Land newly ſowed with Saffron, albeit the Parſon before had Tithe of the ſame Land being ſowed with CornaMich. 31 Eliz. B. R. Bedingfield & Feaks Caſe. Goldesbr. 149, 150. & More. Rep. Caſe 1209..
Salt: By Cuſtome Tithe ſhall be paid of White Salt. Trin. 16 Jac. B. R. Caſe Jones & Gower, Admit. But Prohibition granted on a Modus.
Sheep, if they continue in the Pariſh all the year, the Tithe thereof in kind may be claimed by Cuſtome; but if they be ſold before Shearing-time, and a halfpeny be then claimed to be paid for every Sheep ſo ſold, it is held a very unreaſonable CuſtomebPaſch. 17 Car. C. B. Weeden & Harding's C. Vid. Mich. 2 Car. B. R. Poph. Rep. 197. acc. Marſh. 79.. If Sheep ſtray out of one Pariſh into another, and there yean, no Tithe is payable for this to the Parſon of that place; but if they go there for thirty daies or more, for this a Rate-Tithe is payable to that place; for, for Sheep removed from one Pariſh to another, each Parſon muſt have Tithe pro rata: But under thirty daies no Rate-Tithe is to be paid. Likewiſe Sheep Feeding all the year in one Pariſh, and Couching in another, the Tithe ſhall be equally divided betwixt the Parſons. So likewiſe if Sheep go a while in one, and another while in another Pariſh, a Rate-Tithe is payable, as aforeſaid, to both. But if Sheep are brought only by Night to dung the Land, no Tithe there is to be paid, unleſs they Feed there half their time. And if Sheep be brought from one place to be ſhorn in another, where they were not before, the Tithe is payable where the ſhearing is, unleſs it be paid to the Parſon of the place from whence they came. Trin. 3 Car. B. R. in a Prohibition inter Aſhton and Willer. And where ſeveral mens Sheep feed in one Flock under one Sphepheard, they ſhall be ſeverally Tithed by their reſpective Owners. Lindw. c. Quoniam propter, verb. Lanae. A Prohibition was prayed, becauſe the Parſon Libelled in the Spiritual Court for the Tenth part of a Bargain of Sheep, which had depaſtured in the Pariſh from Michaelmaſs to Lady-day: the party Surmized, That he would pay the Tenth part of the Wool of them, according to the Cuſtome of the Pariſh: The Court would not grant a Prohibition, for that, by this way, the Parſon might be defrauded of all, and the Sheep being now gone to another Pariſh, he cannot have any Wool at this time, becauſe it was not the time of ShearingcMich. 2 Car. B. R. Hob. 197..
Spoliation or the Action thereof, may be commenced in the Eccleſiaſtical Court, where one Parſon takes away the Tithes or Profits belonging to the Church of another Parſon, if the Tithes and Profits belonging to the Church of that other Pariſh, do not amount to the Fourth part of the value of the Church, in which caſe the one Parſon ſhall have a Spoliation againſt the other in the Eccleſiaſtical Court, although they claim by ſeveral Patrons; and if they claim both by one Patron, there the one ſhall have a Spoliation againſt the other, although the Profits do amount to above a Fourth part, as to a Third part, or to the Moity of the Church, becauſe the Patronage doth not come in debate. But if the Profits do amount to above the Fourth part of the Church, and they claim by ſeveral Patrons, that if one Parſon ſueth a Spoliation in the Eccleſiaſtical Court againſt the other, the party grieved ſhall have an Indicavit, which is in the nature of a Prohibition, unto the Eccleſiaſtical Court, becauſe the Right of the Patron doth come into debate: But where the Right of Tithes doth only come into Debate, and not the Patronage, there the Juriſdiction doth belong unto the Eccleſiaſtical Court. Co. Select Caſes, in the Caſe de Modo Decimandi 38, 39, 40, 46. 38 H. 6. 20. by Forteſcue, 26 H. 8. 3. acc. And if there be a Contention De jure Decimarum, Originem habens de jure Patronatus, tunc ſpectat ad Legem Civilem, by the Opinion of all the Juſtices. Mich. 29 El. B. R. in Buſhie the Vicar of Paucas Caſe. Godbolt. 63.
Sylva Caedua doth pay a Real and Predial Tithe; by Sylva Caedua is to be underſtood, all ſuch Trees of what kind ſoever, as may be cut, and being cut do grow again from the Stock or Root. Lindw. c. Quanquam ex Solventibus, lib. 5. Or all ſuch Wood as may be cut, and (after Lopping, Topping, or cutting from the Boughs, Branches,50 Ed. 3. 10. b6 Belknap.. Stock, or Root) do grow again; by which are excepted Great Trees and Timber-Trees. So that of Sylva Caedua and Underwoods Tithes are payable; but not of Great Trees, or of twenty years growth, and that by the Statute of 45 Ed. 3. cap. 3. Whereby a Prohibition will lie,Vid. Co. 2. par. Inſt. 643, 644. Seldens Hiſt. Decim. 236. Rol. 1. 1. 637, 638, 639. in caſe, &c. which Statute exempteth Wood of twenty years growth and upwards from the payment of Tithes, as Preſcription doth ſuch Wood as hath not been Fell'd in the Memory of man; yet Wood of the age aforeſaid, not in uſe nor apt for Timber, is (under permiſſion of the ſaid Statute) Tithable Body and Bough, Felled or Lopped: And ſuch Woods as are not Sylva Caedua nor Tithable, go under the notion of Groſs Woods, or Great Wood, viz. ſuch as are uſually employed for the building of Houſes, Mills, &c. as hath been ReſolveddCo. 2. par. Inſt. 643., of which ſort are Oak, Aſh, Elm, Beech, Horn bean, and AſpePlow. 470. a. b.: Yet if theſe be cut under 21 years growth, they are accuonted Sylva Caedua, and ought to pay Tithes. But the Loppings of great Oaks, Aſhes, &c. though the Lops be under twenty years growth, ſhall not pay Tithes, being priviledg'd by the BodiesfCo. ubi ſupra.; nor are the Shoots and Underwood growing from the Roots and Stocks of ſuch Timber-Trees Tithable, or from the Roots and Stocks of Trees above the growth of 20 years, which have been felledgMore. 762. Plow. 470. b. Rol. 1. 640. q. 1. 3, 4. Co. 11. 49. a.. Vid. Trees, Wood, Ʋnderwoods, and Timber.