Abridgment of Ecclesiastical Laws, Treatise · Chapter 32 · Part 2
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BArk of Timber Trees is not Tithable, but is priviledged together with the Trees.
Barren Ground, which is ſuapte natura Barren, is not Tithable; but if Tithe-Wool and Tithe-Lamb have by Thirty years been paid for it, and after by Manurance is made Fertil, then for the firſt Seven years ſuch Tithe ſhall be paid for it, as was paid before. Therefore Barren Heath or Waſte-grounds, naturally Barren and not Manurable without extraordinary charge, may pay Tithe of Wool, Lamb, or the like; but being converted into Tillage, ſhall pay no Tithe of Corn or Hay for the firſt Seven years after ſuch improvement; during which time it ſhall pay only ſuch Tithe as was formerly paid: Otherwiſe it is, if it became barren only by ill Huſbandry eMore, Caſe 1278.: Or if it became Barren by ſome accident of Inundation, or overgrown with Buſhes, and after reduced again to Fertility; in that caſe it ſhall pay Tithes preſentlyfM. 11 Jac. C. B. S…arington's Caſe. 2 El. Dyer 170. & 2 Ed. 6. c. 13. Co. 2. Inſt. 656. Plow. 204. …. 396. b. vid. 15 Car. B. R. in Sugden and C…ttel's Caſe.. Alſo Marſh-Lands newly gained from the Sea, and Fenn-Lands gained from the Freſh waters by Drayning, &c. are not within the Statute of 2 Ed. 6. c. 13. to be freed from the payment of Tithes during the firſt Seven years after the gaining thereof. Likewiſe, if Land be gained from the Sea, and that by great coſt and expence, and afterwards turned to Arable-Land; it was the Opinion of the Court, that it ſhall pay Tithe notwithſtanding the Coſts, becauſe it is not Barren Land of it ſelf, but only by accident, and ſo not within the ſcope and intention of the Statute of 2 Ed. 6.gPaſch. 14 Jac. B. R. Witt and Buck's Caſe. Bulſtr. 165, 166. par. ….. In the Caſe between Strowd and Hoskins upon a Prohibition, Two Points were Argued by the Four Juſtices, viz. (1) When a Prohibition is brought upon the Statute of 2 Ed. 6. to ſtay a Suit in the Eccleſiaſtical Court for Tithes of Barren-Lands the firſt Seven years… it behooves the party who brings the Prohibition, to prove his Suggeſtion within Six months, otherwiſe a Conſultation by the ſaid Statute is grantable. (2) When a Conſultation is granted for the Reaſon aforeſaid, yet the party may have a new Prohibition upon the ſame Libel; for that the Statute of 50 Ed. 3. doth not extend to a Conſultation granted upon non-probate of a Suggeſtion within Six months, but where a Conſultation is granted upon the matter of a Suggeſtion: And ſo the Chief Juſtice declared the Opinion of the Four Juſtices, and thereupon a Rule given, That the Prohibition ſhould ſtand, and the Defendant notwithſtanding ſuch Plea aforeſaid in Barr of the Prohibition, may plead in chief to the matter of the ſaid Suggeſtion, and if he will diſpute it, then he ſhall have ſeveral Conſultations on the ſaid Libel hHil. 6 Car. B. R. Strowd verſ. Hoskins. Jones Rep.. Thus (as aforeſaid) in a Prohibition for Tithes it was ſaid by Papham Chief Juſtice, That if Lands be overflown with Water, and afterwards gained by Induſtry, Tithes ſhall be preſently paid, although it had been overflown time out of mind; for thoſe Lands of their nature were not barren, and the Statute of 2 Ed. 6. doth not intend, that Tithes ſhall not be paid within ſeven years,Sherington and Fleetwood's Caſe. Cro. par. 1. but of ſuch Lands as were meerly Barren, and made good by Foldage or other induſtrious means. And ſo it was Adjudged Paſch. 14 Jac. B. R. in the Caſe between Witt and Buck, in a Prohibition upon the Statute of 2 Ed. 6. cap. 13. the Clauſe touching Barren and Heath-ground, of which after improvement, no Tithes to be paid the ſpace of Seven years next after the Improvement: For a Prohibition it was ſhewed, That this Land, for which the Parſon Libelled for Tithes,Bulſtr. par. 3. was Marſh and Sandy Land, and covered with Salt water, ſo that time out of mind no Graſs had been known there to grow, nor any profit at all made of this, until now of late time, by and with the great coſts, charges, and induſtry of the Tenant, this ground had been lately gained from the Sea, and from its overflowing, by repairing and making new Banks and Seawalls, and by continual repairing of them, and ſo he had now converted the ſame into Arable Land, where he had Corn, and of this Land the Parſon Libels for Tithes in the Eccleſiaſtical Court: And upon this matter thus ſhewed, a Prohibition prayed, being to be diſcharged from payment of Tithes of this Ground for Seven years; this Statute being thus made for the encouragement of Tenants to make improvement of their Lands. Coke Chief Juſtice, It was Reſolved in one Farrington's Caſe upon this Statute of 2 Ed. 6. that Wood-ground is not Barren ground within this Statute: This was there Adjudged, That if one do ſtock and grub up Wood-ground, and after convert this into Arable ground, he hath by this meliorated his Land, but with great coſt and labour, yet he ſhall pay Tithes for this ground preſently; for that Heath and barren-ground, intended to be within the Statute, ought to be ſuch Land as is ſuapte natura ſterilis, and Barren. Dederidge Juſtice, A Salt Marſh, if this be fenced and ſo made good Meadow, ſhall pay Tithes preſently; yet before this was ſo fenced, no Tithes thereof payable. Coke, This Land ſhall be out of the Statute, out of the clauſe of Diſcharge for Seven years, notwithſtanding this charge the Tenant hath been at in gaining this Land from the Sea; for to have this Land within the clauſe of Diſcharge within the Statute, it ought to be Suapte natura Barren, which here it is not, but by accident, and by the overflowing of the Sea. The whole Court agreed in this, That by this Statute Barren ground is ſuch ground as will not bear Corn of it ſelf, without very great coſt in the extraordinary manuring of it; and therefore, that this is no ſuch Barren ground within the Statute, as ought to be diſcharged from payment of Tithes, but that Tithes ought to be paid for the fame, and that the Parſon had juſt cauſe to ſue for his Tithes in the Eccleſiaſtical Court; and therefore the Prohibition was denied.
Beech-Trees, regularly are Tithable; yet in a County where there is a ſcarcity of Timber, and where Beech is uſed as Timber for Building or the like, there poſſibly they may be diſcharged of paying Tithes; and therefore in Trin. 38 Eliz. it was Reſolved, That Tithes ſhall be paid of Beeches, although they are above twenty years growth, for they are not Timber. Yet in Holliday and Lee's Caſe in a Prohibition it was Reſolved, That Tithes ſhould not be paid of Beeches of above twenty years growthiMore. Rep. Holliday & Lees Caſe.. And in Pindar's Caſe it was alſo Reſolved, That Beeches above twenty years growth, being Timber, ſhall not pay TitheskMore. Caſ. 716, 716. Jac. C. B. Pinder's Caſe.; yet in a Countrey where there is plenty thereof, they are not to be accounted Timber, or Tithe-free. So that Beeches in their own nature are not computed Timber-trees, and therefore Tithable, except where by the Cuſtome of the Countrey, where there is ſcarcity of Wood, they are accounted Timber-trees, in which caſe they are not TithablelAdjudg. Paſch. 6 Jac. C. B. in …ind…r and Spencers Caſe.: The Judges of the Common Law have Reſolved, That all ſort of Wood that is uſually employed for the building of Houſes, Mills, &c. are Groſs Woods, and within the Statute of 45 Ed. 3. cap. 3. of which ſort are Oak, Aſh, Elme, Beech, Horſe-Beech, and Horn-bean, againſt the opinion in Molyn's CaſemSir S. D…ggs Law of Tithes, c. 4.; as alſo in Man and Somerton's Caſe, where it was ſaid by Tanfield Juſtice, That Beech by the Common Law is not Timber: and ſo he ſaid it was Adjudged in Cary and Pagett's Caſe; and in that caſe it was holden, That Tithes ſhall not be paid for Beech above the growth of twenty years in a common Countrey for Wood, as in Buckinghamſhire, for there it is reputed Timber; but in a plentiful Countrey of Wood it is otherwiſe, for there it is not Timber, and Tithes ſhall be paid of it, as Sylva caedua, for which Tithes ſhall be paid under the growth of 20 yearsnPaſch. 5 Jac. C. B. Mau… & Somerton's Caſe. Brownl. 1. par. 84..
Bees pay not Tithes by the Tenth Swarm, but by the 10th meaſure of Honey, and the Tenth weight of Wax; and are Predial Tithes.
Birch-Trees are Tithable, though above 20 years growthoMore. Caſ. 1271, 1272.; and therefore in Foſter and Leonard's Caſe, in Attachment upon a Prohib. for Suing for Tithes of Great Wood, againſt the Stat. of 43. Ed. 3. it was Reſolv. 1. That of Birch Tithes ſhall be paid, for that they are not ſuch Wood as the Stat. intended, as ſerving for Building. 2. That Oak and Elm cut down before the age of 20 years ſhall pay Tithes; for till they are of that age, they are not of that value as the Law regardeth for the purpoſes aforeſaid. Alſo in Foſter and Peacock's Caſe it was Reſolved, That for Birch above the age of 20 years growth Tithes ſhould be paidqMore..
Bricks are not Tithable, as was Adjudged in the Caſe betwixt Liff and Watts rMich. 19 Eliz. B. R. & Paſch. 34 El. C. B..
Broom for Fuel ſpent in the Pariſh is not TithablesMore 1279.; but if ſold it ſhall pay Tithes, unleſs the Owner can preſcribe or prove a Cuſtome of Tithing Milk or Calves of Cattel kept on that ground; but regularly Tithe is not due of Broom ſpent for Fuel in the Pariſhioners houſe within the PariſhtPaſch. 40 Eliz. Auſtin & Lucas, Adjudg. per Cur..