Tithes refrained to the proper

is, whether potatoes planted in fields are great or small tithes. Potatoes in their nature are small tithes; then the queftion will be, whether they receive any alteration of their right, by cultivating in greater or smaller quantities. When the diftinction of great and small tithes was at first 'fettled, probably it was upon this foundation, that the former yielded tithes in greater quantities; and the fpecies of tithes, which were called fmall, produced but in small quantities, tho' it might be arbitrary at firft, yet it hath grown into a rule, and fixed fo for the fake of certainty. If this fort of roots fhould be called small tithes when planted in gardens, and great when planted in fields, it would introduce the utmoft confufion, and muft vary in every year in every parifh. If the quantity will turn (mall tithes into great, why will it not turn great tithes into fmall, when the quantity of great tithes is but fmall? Upon the whole, his lordship was of opinion, that the tithe of potatoes, in whatever quantity, is a small tithe; and decreed accordingly. 2 Atk. 364.

3. It is faid by lord Coke and many others, that before the council of Lateran in the year 1180, a man might have given his tithes to what church or monaftery he pleased.

But this Dr. Prideaux doth utterly deny, for two reafons; 1. Because of the abfurdity of the thing; for all the laws which had been made for tithes would have fignified nothing, if no one had been certainly invested in a right to them; for in fuch cafe, no one could claim them, and in cafe of non-payment no one could make process in law for them; and confequently no one having a special right to demand them, it must have followed in practice, that what was thus paid to every fpiritual perfon, would in fact and reality be paid to none at all. 2. Because before the faid council there were in this land many appropriations, whereby the tithes of whole parishes were affigned to convents or other fpiritual corporations; all which would have fignified nothing, if the parishioners had been at liberty to pay their tithes to what fpiritual perfon they fhould think fit. Prid. 302.

But be that as it will, it is certain that now tithes of common right do belong to that church, within the precincts of whofe parish they arise (g).

(g) This regulation, correfponding with the ancient law of the land, was enjoined by a decretal epistle of Innocent the third to the archbishop of Canterbury, in the year 1200. See 2 Inft. 641, and 2 BI, Com. 27.

4. Yet notwithstanding, one perfon may prefcribe to have tithes within the parish of another; and this is what is called a portion of tithes. Gibl. 663.

One reason of which might be, the lord of a manor's having his eftate extending into what is now apportioned into diftinct parishes; for there were tithes before the prefent diftribution of parishes took place.

But whatever original thefe portions might have, they are in law fo diftin&t from the rectory, that if one who hath them do purchase the rectory, the portion is not extinct, but remaineth grantable. But as to the cognizance thereof, the cafe being between parfon and parton, and concerning a fpiritual matter; that belongs, like the cognizance of other tithes, to the ecclefiaftical court. Gibf. 663 (b).

Portion of tithes within another parish.

5. Tithes extraparochial, or within the compafs of no Tithes in extracertain parish, belong to the crown. By the canon law, parochial places, they were to be difpofed of at the difcretion of the bishop; but by the law of England, all extraparochial tithes, as in feveral forefts, do belong to the king, and may be granted to whom he will. And accordingly they have been actually adjudged to him, not only by feveral refolutions. of law; but alfo in parliament, in the cafe of the prior and bishop of Carlisle, in the 18th of Edward the firft, concerning tithes in Inglewood foreft, to wit, that the king in his foreft aforefaid may build towns, affart lands (or make them fit for tillage), and confer those churches, with the tithes thereof, at his pleasure, upon whomsoever he pleaseth; because that the fame foreft is not within the limits of any parish. 1 Roll's Abr. 657. 2 Inft. 647.

III. Of what things tithes fhall be paid; and therein of exemptions and difcharges from tithes.

1. Of common right tithes are to be paid for fuch things only as do yield a yearly increase by the act of God. Waif. c. 46. 1 Roll's Abr. 641.

(b) If a portion of tithes be poffeffed for 150 years, or for fuch a length of time as to make the right doubtful, a court of equity will not affift the plaintiff, by directing an iffue, but he must establish his right at law. Scot v. Airey, 1779, cited in 1 Auft. 311.

Yet

Things that re
new yearly.

Once in the year.

Things of the fubftance of the ea.th.

Things fere

naturæ.

Yet this rule admits of fome exceptions; as for inftance, tithe is due of faffron; tho' gathered but once in three years and concerning fylva cædua, there is an entry in the regifter, that confultations fhall be granted thereof, notwithstanding that it is not renewed every year. Gibf. 669.

2. Generally, of things increafing yearly, tithes fhall be paid only once in the year. Gibf. 669.

But this rule alfo is not univerfally true. And it is evidently against the rule of the canon law; which requireth, that if feeds be fown upon the fame ground, and renew oftner than once in the year, the tithes thereof fhall be paid fo often as they renew (i). And this feemeth ftill to be the law; as in the cafe of clover, for instance, which reneweth oftner than once in the year, tithes thereof shall be paid as often as it doth renew.

3. Of common right, no tithes are to be paid of quarries of tone or flate, for that they are parcel of the freehold, and the parfon hath tithes of the grafs or corn which grow upon the furface of the land in which the quarry is; fo alfo, not for coal, turf, flags, tin, lead, brick, tile, earthen pots, lime, marle, chalk, and fuch like; because they are not the increafe, but of the fubftance of the earth. And the like hath been refolved of houfes (confidered feparately from the foil) as having no annual increafe. But by particular cuftom, tithes of any of these may be payable. 2 Inf. 651.

4. By the common law of England. there is no tithe due for things that are feræ naturæ; and therefore it bath been refolved, that no tithe fhall be paid for fish taken out of the fea, or out of a river, unlefs by cuftom, as in Wales, Ireland, Yarmouth, and other places: neither, for the fame reafon, is any tithe due of deer, conies, or

(i) The paffage of the canon law quoted by Dr.Gibson for this opinion is a decree of Clement III. to be found in X. 3. 30. 21. Ex parte canonicorum ecclefiæ tuæ nobis eft querela propofita quod quidam agricultores, cum fimul vel diverfis temporibus anni, in eodem borto vel agro diverfa femina fparferint, non nifi de unius illorum feminum fructibus decimas perfolvunt.-Mandamus quatenus fi noveris rem taliter fe habere, agricultores illos ut de omnibus prædiorum fructibus decimas abfque diminutione perfolvant, ecclefiaftica cenfura compellas. But the complaint there made is for fowing different feeds in the fame ground, and paying tithes of the produce of one only, and not for refufing to pay different tithes of the produce of the fame feed; fo that the autho rity does not fupport the pofition. Vid. infra, V. II. 2. & 3.

the

the like. But if the tithe thereof be due by cuftom, it muft be paid. Derge, p. 2. c. 8. 2 ft. 651. 664.

5. By the ftatute of the 2 & 3 Ed. 6. c. 13. All fuch Barren land. barren, heath, or wefts ground, other than fuch as be discharged from the payment of tithes by act of parliament, which before this time have lain barren, and paid no tithes by reason of the fime barrenness, and now be or hereafter shall be improved and converted into arable ground or meadow, shall after the end and term of feven years next after fuch improvement fully ended and determined, pay tithe for the corn and hay growing upon the fame. f. 5.

Provided, that if any fuch barren, waste, or heath ground bath before this time been charged with the payment of any tithes, and the fame be hereafter improved, or converted into arable ground or meadow; the owner thereof fhall, during the feven years next after the faid improvement, pay fuch kind of tithe as was paid for the fame before the faid improvement. f. 6.

Barren Altho' it doth yield fome fruit, and do pay tithes for wool and lamb or the like, yet if it be barren land as to agriculture or tillage, which this claufe meant to advance, it is within this act. 2 ft. 655. Inft.

But yet if the ground be not apt for tillage, yet if it be not of its own nature barren, it is not within this act. As if a wood be ftubbed and grubbed, and made fit for the plough, and employed thereunto: yet it fhall pay tithes. prefently; for wood ground is fertile, and not barren. 2 Inft. 656. Bunb. 159.

In the cafe of Stockwell and Terry, July 14, 1748, it was held by lord Hardwicke, that fuch land only is within this clause, as above the neceflary expence, of inclofing and clearing, requires alfo expence in manuring, before it can be made proper for agriculture; and he decreed tithe to be paid, on its being proved, that the land bore better corn than the arable land in the parish, without any extraordinary expence of manure. 1 Vezey 115.

In a prohibition between Sharington and Fleetwood, H. 38 Eliz. for tithes in Orwell in the county of Lancafter, it was refolved, that if marfh meadow, or other land, for not cleanfing of the trenches or fewers, or by fudden accident, or inundation of waters, be furrounded; or by ill husbandry or unprofitable negligence any land become overrun with bushes, furze, whins, and briers; yet are not they or any of them faid to be barren land within this ftatute, becaufe of their own nature they are fruitful; and the parfon fhall not by this act be barred of his tithes, by the ill hufbandry or negligence of the owner or poffeffor. 2 Infi, 656.

7

Shall

Shall after the end and term of seven years next after fuch improvement fully ended and determined pay tithe] Note, here are no express words of difcharge of the tithes during the feven years; but by reafonable conftruction it doth impliedly amount to a difcharge during the feven years: and the feven years are to be accounted next after the improvement. 2 Inft. 656.

court.

The trial whether lands are barren or not within the ftatute, must be in the temporal, and not in the spiritual And therefore in a fuit for tithes in the fpiritual court, if the defendant plead that it is barren land, and that plea be refused, or iffue taken upon it, there a probibition fhall be granted. But a prohibition fhall not be granted upon a fuggeftion only that it is barren land, before it be pleaded in the fpiritual court. Degge, p. 2. c. 12. 1 Keb. 253. (1 Vez. 117.)

6. As lands which are in no parish, pay tithes to the king; fo lands lying within the precincts of a forest (tho' alfo in a parish) if they be in the hands of the king, do pay no tithes. And this privilege extends to the king's leffee, but not to his feoffee. But if the forest be difafforefted, and be within any parifh; then thev ought to pay tithes in the hands of the king's leffee. Bah. 163, 177. Gibf. 680.

It hath been queftioned, where a park hath paid a modus, and is difparked, whether the modus fhall continue, or be discharged and tithes paid in kind; and all the books are clear, that if the modus was a certain confideration in money for all the tithes of fuch a park, fuch modus fhall hold, notwithstanding it be difparked; but if the modus was, for the deer and herbage of fuch a park, the modus is gone, upon difparking, Gibf. 684. Watf. c. 47. (k)

In like manner, if the modus hath been to pay a buck and a doe for all the tithes of fuch a park, and the park is difparked, the modus fhall continue, and the owner may give a buck and a doe out of another park; but if it was, to pay the fhoulder of every deer, or exprefsly a buck or a doe cut of the fame park, the modus is gone. Gibf. 684. Watf. c. 47.

But where the modus was, part in money, and part in venifon out of the park (namely, two fhillings and the fhoulder of every deer); the court was divided, two being of opinion that the two fhillings continued, and that the