Abridgment of Ecclesiastical Laws, Treatise · Chapter 32 · Part 6
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FAllow-Grounds pay no Tithe for theſe years wherein they lie Fallow, nor is the Paſture thereof Tithable, unleſs it be kept Lay beyond the courſe of Husbandry; for if Land lie Fallow every two or three years, the ſame is a charge unto the Owner and Tenant for that time, and an advantage to the Parſon in the bettering of his Crop the year following, when the ſame is ſowed with Corn or Grain; and therefore, although the Graſs and feeding of the Fallow-ground for that year be ſome ſmall profit to the Owner of the Soil, yet he ſhall not pay Tithe for the ſame, as hath been AdjudgedaPaſch. 7 Jac. C. B.. Yet it was afterward Adjudgedb15 Car. by Barkley Juſtice in C. B., That if Lands be Tithable, and the Tenant or Occupier of the Land will not Plough it, or Manure it, eſpecially thereby to prejudice the Parſon; that in ſuch caſe the Parſon may Sue the Tenant in the Eccleſiaſtical Court to have Tithe of that Land.
Ferae naturae, Beaſts and Birds that are ſuch are not Tithablec12 H. 8. 4▪, till they become tame and profitable to the Owner, that is till they are reduced to a Tameneſs and Property; yet it hath been held, that Tithes are not payable for tame Turkies, Pheaſants, or Partridges, nor for their EggsdMore. Caſe 322.. Although Beaſts Ferae naturae, as Bucks, Does, Pheaſants, &c. are not Tithable of themſelves; yet they may be given for Tithes, or for a Modus Decimandi, as a great Tree may be given for Tithe of Trees tithableeCaſe Sharp verſus Sharp. Noy. Rep.. And as things which are Ferae naturae, whereof a man hath not an abſolute property, are not Tithable: ſo likewiſe of things which are meerly for Pleaſure Tithes ſhall not be paidf12 H. 8. 4. by all the Juſtices..
Fenny-Lands drained and made Arable do pay TithesgBulſtr. 8. 165., notwithſtanding the Statute of Barren LandhMore. Caſe 603..
Fiſh taken in the Sea, are by the Cuſtome of the Realm Tithable, not by the Tenth Fiſh, but ſome ſmall Sum of Money in conſideration of a TitheiTr. 8 Car. B. R. Earl of Deſmond's Caſe, adjudg. Cro. 1. pa. 192. & 15 Car. B. R. Adjudg. Hugh. Abr. verb. Diſmes.. But if taken in a Pond, or in a ſeveral Piſcary, then they are Tithable by the Owner thereof as a Predial Tithe, and as ſuch ought to be ſet forth according to the Statute of 2 Ed. 6. Trin. 8 Jac. C. B. the Earl of Deſmond's Caſe. Mich. 15 Car. B. R. Adjudg. acc. vid. Trin. 9 Car. B. R. Yet it is ſaid, that Fiſhers, Fowlers, and Hunters, not for pleaſure, but by way of Trade for profit, pay ſome Tithe by uſage in nature of a perſonal Tithe to the Parſon or Vicar where they inhabit, though they take their Fiſh, Fowl, &c. in another Pariſh; but if they paid Money to another in that other Pariſh for this liberty of Fiſhing, &c. then he that takes that Money, muſt pay as a Predial Tithe to the Parſon of that other Pariſh where he inhabits. Fiſh taken in the Sea, being Ferae naturae, are not underſtood to be Regularly, but Cuſtomarily only, Tithable, as in Cornwall, Wales, Yarmouth, &c.kCro. Car. 264. 1. 339. Koll. 1. 635. c. 4, 6, 7.. And ſo it hath been ReſolvedlLaw of Tithes, cap. 8.; albeit in the ſaid Caſe of the E. of Deſmond it was held, that they were Tithable by the Cuſtome of the Realm: In which caſe it is more probable, that the Fiſhers pay a Perſonal, than the Fiſh a Predial Tithe, to the Parſon or Vicar of that Pariſh where they inhabit. To this purpoſe there is a Caſe extant, wherein a Prohibition was granted againſt the ſame Parſon of W. in the County of L. for ſuing in the Eccleſiaſtical Court for the Tithe of Trouts taken in a River, becauſe being Ferae naturae, they are not Tithable; and a Preſident was ſhewed 5 Car. where a Prohibition was granted againſt the ſame Parſon for ſuing for Tithe-Eeles taken in the River▪ becauſe they were Ferae naturae: And it was ſaid, that in Yarmouth was a Suit for Tithe-Herrings taken in the Sea; but they could not prevail in it. Jones Juſtice ſaid, That in Wales they uſed to pay Tithes for Herrings; and in Ireland it is a common courſe to pay Tithe for Salmons taken in Rivers: whereunto it was replyed, That that might peradventure be by Cuſtome, for otherwiſe Tithes are not due for Fiſh taken in RiversmHil. 9 Car. B. R. Cro. par. 1. 247.. For no Tithes de jure are to be paid for Fiſh taken in a Common River. Paſch. 5 Car. B. R. a Prohibition granted to ſtay a Suit for Tithes of Eeles taken in a Common River in the Pariſh of Barton in Weſtmerland; and Hill. 9 Car. Prohibition granted to ſtay a Suit for Tithes of Trouts in the ſame River. But the Court ſeemed to be divided, whether Tithes of them were due or not: But they granted a Prohibition, for that the Law ſhall decide thereupon; it was between Dawes and Huddleſtone. No Tithes ſhall be paid in kind without a Cuſtome for Fiſh taken in the high Sea out of any Pariſh. Hill. 14 Car. B. R. between Long and Dircell per Curiam, and Prohibition granted accordingly.Appeal out of Ireland to the Delegates in England. And Juſtice Jones ſaid, that on an Appeal to the Delegates out of Ireland in the Lord Deſmond's Caſe it was Agreed, That for ſuch Fiſh ſo taken, only Perſonal Tithes are due deductis expenſis. Likewiſe, no Tithes in kind ſhall be paid de jure for Fiſh taken in a Common River, which is not encloſed, as in a Pond encloſed; for that they are Ferae naturae, although they are taken by one who hath a ſevered Piſcary there, and although the place where they are taken be within the Pariſh of that Parſon who claims them; for it is a Perſonal Tithe, in which Tithes ought to be paid deductis Expenſis. Paſch. 15 Car▪ B. R. between Gold and Arthur, and others, Prohibition was granted where the Suit was for Tithes of Salmon in the River of Exe. Mich. 15 Car. between Whiſlake and the ſaid Arthur, and others: the like Prohibition granted on the ſame matter between other parties.Trin. 8 Car. B. R. Cro. p. 2. And in the Caſe of a Prohibition it was Reſolved, That Tithe ſhall be paid for Fiſh taken in the Sea, which is not within any Pariſh; and they ſhall be paid to the Parſon of the Pariſh where the Fiſh is landed.
Flax pays a Predial Tithe, payable when dreſſed up. Coke▪ Mag. Char. 649. The Tithes of Flax are Minutae Decimae. Mich. 14 Car. B. R. in Noah Webb's Caſe.
Foreſt-Lands, that lie in no Pariſh, or between two Pariſhes, and anciently ſuch, are not Tithable by the King or his Patentees; but if the Foreſt be in a Pariſh, and Land therein which is Tithe-Free, if the Foreſt happen to be disforeſted, it ſhall pay Tithes in kind. Crompt. Juriſd 52. Bacon Chief Juſtice, at Sarum-Aſſize; the Caſe was, A. Leſſee for years of the Earl of H. prayed a Prohibition againſt the Vicar of L. to ſtay a Suit in the Eccleſiaſtical Court for Tithes, becauſe the Lands out of which the Tithes were demanded, were parcel of the Foreſt of B. whereof the King was ſeiſed in right of his Crown, and he and all his Predeceſſors held the ſaid Land diſcharged of Tithes; and ſhewed that the King had granted the ſaid Foreſt to the Earl of Hertford in Fee, and ſo he ought to have them diſcharged of Tithes: In that Caſe it was held by the Court, That it was only a Priviledge annexed to the Crown, during the time that the Land was in the Crown; but the Court doubted, whether the Patentee might have ſuch Priviledge: But yet de bene eſſe the Prohibition was grantednMich. 3 Car. C. B. Morant and Canding's Caſe. Cro. p. 1. 67.. If Tithes do lie in any Foreſt, as in the Foreſt of Windſor, Rockingham, Sherwood, or other Foreſt which is not any Pariſh, the King ſhall have them by his Prerogative, and not the Biſhop of the Dioceſs, or Metropolitan of the Province, as ſome have thoughto14 H. 4. 17.. But yet it ſeems by 22 Aſſ. 25. if there be cauſe of Suit for ſuch Tithes againſt the parties who ought to pay the ſame, ſuch Suit might be brought in the Eccleſiaſtical Court: But if a Stranger takes away ſuch Tithes from the Parſon or Vicar, there for ſuch Treſpaſs the Suit may be in the Temporal Court, as the ſame may be for taking away other goods in the like caſe. Adjudg. 15 Car. B. R.
Fowl taken by a Faulkner, who hawks for his pleaſure, ſhall not pay Tithe; but if a Fowler kill Fowl, and make a profit of them, it hath been held, that he ſhall pay a Perſonal Tithe for them. Paſch. 15 Car. Adjudg. acc.
Fruits of Trees, as Apples, Pears, &c. are Tithable preſently upon their gathering, and are Predial Tithes; for the ſubtraction whereof the Pariſhioner is impleadable. Stat. 2 Ed. 6. c. 13. Fruits of Trees, Apples, Pears, &c. Maſt of Oak, Beech, &c. are Predial Tithes. Coke Magn, Chart. 649. The Fruits of Orchards and Gardens are Tithable in their proper kinds, and to be paid when they are gathered, unleſs there be ſome Modus or Rate-Tithe paid in lieu thereof.
Furſe is Tithable, and pays a Predial Tithe, unleſs the Owner thereof can preſcribe or prove a Cuſtome of Tithing Milk or Calves of the Cattle on the ground where the Furſe grows. Mich. 29. Eliz. B. R. Vid. Heath.