TYTHES.* THE word Tithe is derived from the Saxon word Teoda, which signifies the tenth part of a thing. Of every thing, of which tithe is due of common right, tithe is always the tenth part of the thing. But of every thing, of which tithe is only due by custom, more or less than the tenth part of the thing may be due for tithe. [For where custom only subjects to tithe, custom must determine the proportion. Tithes, in their proper and original nature, are a spiritual and incorporeal inheritance: spiritual, from the uses to which they are consecrated; incorporeal, from the mode of their existence. There is no doubt that tithes were originally a mere ecclesiastical revenue ;(a) ecclesiastical persons only having capacity to take them ;(b) and ecclesiastical courts only having power to take cognisance of them. They were considered, not as any secular duty,(c) or as issuing out of the land, but as collateral to the estate of the land, and were paid, not in respect of the land,(d) but in respect of the persons of the laity, in return for the benefit they derived from the ministry and care of their spiritual pastors. They could not pass by copy of court-roll,(e) because things spiritual could not lie in tenure, or be considered as parcel of a manor: unity of possession(g) could not extinguish them, because the spiritual nature could not be merged or extinguished; in other words, could not coalesce or incorporate with that which was material and temporal: nor could a release of all demands in lands operate as a discharge of them ;(h) for as they would not pass under the denomination of land, neither would they be effected by a release of all claims arising out of lands. (a) Moor, 530; Hob. 296. (b) 2 Co. 43 b; 5 Co. Cawdrie's case. (c) 1 Leon. 300. (d) Day, 5 b, 6 a. (e) Cro. Eliz. 293, 814. (g) Dav. 6 a. (h) 1 Leon. 300. Tithes, again, in their essence, have nothing substantial or permanent : they consist merely in jure, are merely a right. An estate in tithes is no more than a title to a share or portion of the produce after it shall have been separated from the general mass: before severance it is wholly uncertain what the amount of that share or portion may be; nay more, its very existence is precarious; this, like its quantity, depending upon the accidents of climate, season, soil, cultivation, and the will and caprice of the several owners or possessors. If the ground be not sown, if the farms be not stocked, if the fruits be not gathered, no tithe can possibly arise. For tithe is payable, as we have said before, not in respect of the land, but of the person it is not an estate in the land, but a right to a determinate proportion of the fruits, with all the industry and expense that have been bestowed in bringing them forward and collecting them. Tithe, then, in itself, is not an object of our external senses: it is neither visible, nor tangible: its produce, indeed, may be seen and felt, but it exists itself only [* The Editor was induced to transpose this head, in expectation of being able to make some valuable additions to it.] in the mind's eye, and in contemplation of law. It follows, therefore, that it is incorporeal: for the law ascribes corporeity only to those objects which are substantial and permanent. From their incorporeity tithes are said to lie in grant, and not in livery; that is, they could not pass from one man to another by livery of seisin, the ancient mode of transfer, nor could actual possession be given of them; but the property in them could only be transferred by deed. In consequence of their incorporeity it was doubted, whether a rent could be reserved upon them; for being incapable of locality, there was no place where a distress could be taken of them. And to obviate this doubt a statute was passed, which empowers ecclesiastical persons to grant leases for lives or years of their incorporeal hereditaments. Of the king's right to reserve a rent on a demise of tithes no doubt indeed was ever entertained; because by the prerogative the king had a right to distrain upon any lands in the possession of his lessee. 2 Bl. Comm., 5 G. 3, c. 7. Tithes. But the revolution which took place in our ecclesiastical polity in the time of Henry the Eighth has almost entirely changed the nature of this species of property; and there now seems to be scarcely any difference between an inheritance in lands and an inheritance in tithes. When the benefices which the regular clergy had appropriated to themselves fell, upon the dissolution of the monasteries, into the hands of the king, he was prompted by his profuseness, and induced by policy, to make grants of them to lay-persons. But in order that the tithes might answer the purposes of civil life, and accommodate themselves to the exigencies of their new proprietors, it became necessary to secularize them, and to endue them with all the qualities of real property. For this purpose an act of parliament was passed; so that tithes in the hands of a lay-person may now be treated like any other kind of property: they may be put in view in an assize: they are demandable in a præcipe quod reddat: they are subject to dower: fines may be levied, and recoveries may be suffered of them: ejectments may be brought for them: in short, they have all the properties and all the incidents of a lay-fee, except that they lie in grant, and not in livery; a distinction which now marks no great difference, since the statute of frauds allows no interest of any permanency to pass even in real property, unless the grant be attested by some written instrument. 32 H. 8, c. 7, §8; 3 Wils. 30.] Under this title it will be proper to show, (A) Of what Things Tithe is in general due. (B) Who are liable to the Payment of a personal Tithe. (C) of what Things a predial Tithe is due. 1. Of Agistment. 2. Of Corn. 3. Of Hay. 4. Of Wood. 5. Of divers other Things. (D) of what Things a mixed Tithe is due. 1. Of the Young of a Beast. 2. Of the Eggs or Young of a Bird or Fowl. 4. Of divers other things. (E) To whom Tithe is in general to be paid. A) of what Things Tithes are in general due. (F) To whom parochial Tithes are to be paid. (K) What Tithes are to be deemed small Tithes. (L) How far the Custom of a Parish is to be regarded in the setting out of Tithes. (M) of the Time and Manner of paying personal Tithes, where there is no Custom in a Parish. (N) Of the Time and Manner of setting out predial Tithes, where there is no Custom in a Parish. (0) of the Time and Manner of setting out or paying mixed Tithes, where there is no Custom in a Parish. (P) of the Time and Manner of paying Tithes due by Custom. (Q) In what Cases the Payment of Tithes may be suspended. 1. Of the Produce of Lands in the King's Hands. 2. Of the Produce of Lands which have been barren. 3. Of the Produce of Glebe Lands. 4. Of Discharge of Payment of Tithes by Composition real. (R) Of a Modus decimandi. 1. In general. 2. Of the Certainty required in a Modus. 3. Of a Modus which amounts to a Prescription in non decimando. 4. Of a Modus which has not been constantly paid. 5. Of a leaping Modus. 6. Of a Modus which is too rank. 7. Of a Modus which is liable to fraud. 8. Of a Modus for such persons as live out of the Parish. 9. Of the extent of a Modus. (S) Of a Prescription in Non decimando. (T) Of a Discharge of Tithes by Grant. (U) Of a Discharge of Tithes by Bull. (W) of a Discharge of the Payment of Tithes by Order. (X) Of a Discharge of the Payment of Tithes by Unity of Possession. (Y) Of Agreements and Leases concerning Tithes. (Z) of a Suit in a Spiritual Court for Subtraction of Tithe. (Aa) In what Cases a Prohibition lies to a Suit in a Spiritual Court for Subtraction of Tithe. (Bb) of a Suit in a Court of Equity for Subtraction of Tithe. (Ce) of a Suit in a Court of Equity to establish a Modus, or a customary Manner of setting out Tithe. (Dd) of an Action upon the Statute against Subtraction of Tithe. (Ee) of recovering in a summary Way the Value of small Tithes subtracted. (Ff) of recovering Tithe due from Quakers. (Gg) What Remedy the Occupier has, when the Person entitled to the Tithe set out does not fetch it away in a reasonable Time. (A) Of what Things Tithes are in general due. TITHES of some things are due of common right, of others by custom. Tithe is not due of common right of any fruit of the earth which does not renew annually. (A) Of what Things Tithes are in general due. Tithe, which arises from a fruit of the earth, can never be part of the land from which it arises, but must always be collateral thereto. 11 Rep. 13; Cro. Eliz. 161, 216; Cro. Ja. 452. Nay, tithe is so collateral to the land from which it arises, that if a lease be made of the glebe belonging to a rectory, with all the profits and advantages thereof, and there be a covenant, that the rent to be paid shall be in full satisfaction of every kind of exaction and demand belonging to the rectory; yet, if the glebe be not expressly discharged of tithe, the lessee shall be liable to the payment of tithe for the glebe. 11 Rep. 13, Priddle v. Napier; Cro. Eliz. 161. See post, head (Q). || Tithe is not due of common right of the produce of a mine or quarry; because such produce does not renew annually, but is the substance of the earth, and has perhaps been so for many years. Fitz. N. B. 53; Bro. Dism. pl. 18; 2 Inst. 651; 1 Roll. Abr. 637; Cro. Eliz. 277. But tithe may be due by custom of the produce of a mine or quarry. 2 Vern. 46, Buxton v. Hutchinson; Gwill. Tithe Ca. 535.|| Tithe is not due of common right of lime the chalk, of which it is made, being part of the soil. 1 Roll. Abr. 637, pl. 5. Tithe is not due of common right of bricks; because these are made of earth. 2 Mod. 77, Stoutfield's case. Tithe is not due of common right of turf or gravel; because both these are part of the soil. 1 Mod. 35. It has been holden, that tithe is not due of common right of salt; because this is not a fruit of the earth. 1 Roll. Abr. 642, S. pl. 8. But every one of these things, and all things of the like kind, may by custom be liable to the payment of tithe. 1 Roll. Abr. 642, S. pl. 7, pl. 8. Tithe is not due of common right of a house; because tithe is only due of common right of such things as renew annually. 11 Rep. 16, Graunt's case. But houses in London are by a decree,(a) which was confirmed by an act of parliament, made liable to the payment of tithe. 2 Inst. 659; 37 H. 8, c. 12. (a) This decree, dated 24th February, 1545-6, ordered, that the inhabitants of London should pay tithes to the parsons, vicars, and curates, at the rate of 18. 44d. for every 10s. rent, and of 2s. 9d. for every 20s. rent by the year. The statute 37 H. 8, c. 12, enacted, that the decree, when concluded, "and enrolled in the King's High Court of Chancery of record, should stand, remain, and be as an act of parliament." After repeated searches, no enrolment has ever been discovered. It appears from the authentic edition of the statutes, published by the Commissioners of Public Records, that the decree is not inserted in the earliest printed copies of the statutes of the year; that it does not form part of the act entered on the enrolment of the statute in Chancery, nor is it enrolled in Chancery, nor annexed to the original act preserved in the Parliament-office. From a copy of the endorsement on the decree entered in the Register Book of the Bishop of London in St. Paul's cathedral, it appears that the decree, signed and sealed, was delivered, the day after the date, to Bonner Bishop of London, by the Archbishop, &c., whose names are signed thereto; and that the bishop delivered it to his registrar for safe custody. The original instrument has not been found. The binding force of the decree under the statute depending on its |