Division of tithes into prædial, mixt and personal: Prædial. Mixt. Personal. Division of tithes into great and small tithes. Tithes re strained to the Tithes, with regard to the several kinds or natures, were divided into prædial, mixt and personal. Prædial tithes were such as arise merely and immediately from the ground; as grain of all sorts, hay, wood, fruits, herbs (b). Mixt tithes were those which arise not immediately from the ground, but from things immediately nourished by the ground, as by means of goods depastured thereupon, or otherwise nourished with the fruits thereof; as colts, calves, lambs, chickens, milk, cheese, eggs (c). Personal tithes were such profits as do arise by the honest labour and industry of man, employing himself in some personal work, artifice, or negociation; being the tenth part of the clear gain, after charges deducted (d). Tithes, with regard to value, were divided into great and small. Great tithes; as corn, hay and wood (e). Small tithes; as the prædial tithes of other kinds, together with those which are called mixt, and personal (f). But it is said, that this division might be altered by custom, which will make wood a small tithe. It is not, however, altered by quantity, i.e., a small tithe is not turned into great, if the parish is generally sown with it; nor by change of place, the same things, as hops, being in gardens small tithes, and in fields the same (g). It is said by Lord Coke and many others, Dr. Prideaux taking proper parish, a contrary view (), that before the Council of Lateran in the year 1180, a man might have given his tithes to what church or monastery he pleased. Portion of tithes within another parish. Be that as it will, it is certain that now tithes of common right do belong to that church, within the precincts of whose parish they arise. This regulation corresponding with the ancient law of the land, was thought by Lord Coke to be enjoined by a decretal epistle of Innocent III. to the Archbishop of Canterbury in the year 1200 (i). Yet notwithstanding, one person may prescribe to have tithes within the parish of another, and this is what is called a portion of tithes (k). One reason of which might be, the lord of a manor's having his estate extending into what is now apportioned into distinct parishes; for there were tithes before the present distribution of parishes took place. Wats. c. 49, p. 548. (d) Ibid. (e) Degge, pt. 2, c. 1. (g) Gibs. p. 663; Wats. c. 39, (h) Prideaux on Tithes, p. 302, edit. 2, pp. 198-201. (i) 2 Inst. p. 641; see 2 Black. Com. p. 27; Lord Selborne, Ancient Facts and Fictions concerning Churches and Tithes, p. 142; History of the Law of Tithes in England, by G. Edwardes Jones, p. 60. (k) Gibs. p. 663. But whatever origin these portions might have, they were in law so distinct from the rectory, that if one who had them purchased the rectory, the portion was not extinct, but remained grantable; but as to the cognizance thereof, the case being between parson and parson, and concerning a spiritual matter, that belonged, like the cognizance of other tithes, to the ecclesiastical court (1). If a portion of tithes were possessed for 150 years, or such a length of time as to make the right doubtful, a court of equity would not assist the plaintiff, who as rector, claimed tithe on lands occupied by the defendants, by directing an issue, but he must have established his right at law (m). Where a portion of tithes had been possessed for 250 years by the owners of the lands, the court presumed a grant of them before 13 Eliz. c. 10, though tithes were not specifically mentioned in the title deed, under which the lands were claimed (n). Tithes extra-parochial (0), or within the compass of no certain Tithes in parish, belong to the crown. By the canon law, they were to extra-parodisposed of at the discretion of the bishop; but, by the law of chial places. England, all extra-parochial tithes, as in several forests, 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 several resolutions of law, but also in parliament, in the case of the prior and bishop of Carlisle, in the 18 Edw. 1, concerning tithes in Inglewood Forest, that the king in his forest aforesaid may build towns, assart lands (or make them fit for tillage), and confer those churches, with the tithes thereof, at his pleasure, upon whomsoever he pleases; because that the same forest is not within the limits of any parish (p). By custom, however, a parson or vicar might be entitled to the tithes of extra-parochial lands (9). By 2 & 3 Edw. 6, c. 13, s. 3, every person having any cattle 2 & 3 Edw. 6, tithable depasturing on any waste or common ground whereof c. 13. the parish is not certainly known, was to pay their tithes for the increase of such cattle to the parson, vicar, &c., of the parish (1) Ibid. (n) Scott v. Airey, 1779, cited in 1 Anst. p. 311. 2 E. & Y. p. 494; Bp. of Carlisle (0) By common law even extra- (n) Oxenden v. Skinner, 4 Gwill. p. 1513; see further on this subject, Dean and Chapter of Bristol's Case, 1 E. & Y. p. 51; Sir E. Coke's Case, nomine Sir Edward Cooke's Case, 2 Roll. p. 161; 1 E. &Y. p. 314; Futter v. Borome, 1 E. & Y. p. 86; Downes v. Mooreman, 1 E. & Y. p. 803; Hungerford v. Howland, 1 E. & Y. p. 108; Wolley v. Platt, M'Cl. p. 468; 3 E. & Y. p. 1167; Boulton v. Richards, 9 Price, p. 671; 3 E. & Y. Pellatt v. Ferrars, 2 B. & P. p. 542; 1068; P. (P) 1 Roll. Abr. p. 657; 2 Inst. p. 647. See Parry v. Hervey, 4 Gwill. p. 1490. (9) Com. Dig. Dismes (C. 3); T. 11 Hen. 4; 1 E. & Y. p. 29. where the owner of the cattle dwells (). Tithes of agistment for cattle fed upon the common were not within this statute (s). Things that SECT. 2.-Of what things Tithes were paid. Of common right, tithes were to be paid for such things only renew yearly. as do yield a yearly increase by the act of God (t). Once in the year. Things of the the earth. Yet this rule admitted of some exceptions: as, for instance, tithe was due of saffron, though gathered but once in three years; and concerning sylva cadua, there is an entry in the register, that consultations shall be granted thereof, notwithstanding that it is not renewed every year (u). But “great wood of the age of twenty years or of greater age" was not tithable (x). Generally, of things increasing yearly, tithes were to be paid only once in the year (y). Of common right, no tithes were to be made of quarries of substance of stone or slate, for that they are parcel of the freehold, and the parson had tithe of the grass or corn which grew upon the surface of the land in which the quarry is; so, also, not for coal, turf, flags, tin, lead, brick, tile, earthen pots, lime, marle, chalk, and such like, because they are not the increase, but of (r) 2 Inst. p. 650. (8) Ellis v. Saal, 1 Anst. p. 332; 1 E. & Y. p. 437; Morant v. Cum- (t) Wats. c. 46, p. 495; 1 Roll. and lambs; 12, Milk and cheese; 13, Deer and conies; 14, Fowl; 15, Bees; 16, Mills, fishings, and other personal tithes. It will be seen below that fishing and other personal tithes are not necessarily included under the operation of the Tithe Commutation Acts, 6 & 7 Will. 4, c. 71, s. 90, and 2 & 3 Vict. c. 62, s. 9. (u) Gibs. p. 669. (x) 45 Edw. 3, c. 3. There is a various reading of forty for twenty years. (y) Gibs. p. 669, thinks this rule not universally true, and quotes from the canon law a decree of Clement III. to be found in X. iii. 30, 21. But the complaint there made is for sowing different seeds in the same ground, and paying tithes of the produce of one only, and not for refusing to pay different tithes of the produce of the same seed; so that the authority does not support the position. Tithes of clover, however, seem to have been paid more than once a year. the substance of the earth. And the like has been resolved of houses (considered separately from the soil), as having no annual increase. But, by particular custom, tithes of any of these might be payable (z). By the common law of England, there was no tithe due for Things feræ things that are feræ naturæ, and therefore it has been resolved, naturæ. that no tithe shall be paid for fish taken out of the sea, or out of a river, unless by custom, as in Wales, Ireland, Yarmouth, and other places; neither, for the same reason, was any tithe due of deer, conies, or the like. But if the tithe thereof were due by custom, it must be paid (a). No tithe was due for fowls or eggs of fowls in a decoy (b), or Things tame. for hounds, or for animals kept for pleasure or curiosity. c. 13. By 2 & 3 Edw. 6, c. 13, s. 5 (c)," All such barren heath or 2 & 3 Edw. 6, waste ground, other than such as be discharged from the payment of tithes by act of parliament, which before this time have Barren land. lain barren, and paid no tithes by reason of the same barrenness, and now be or hereafter shall be improved and converted into arable ground or meadow, shall, from henceforth, after the end and term of seven years next after such improvement fully ended and determined, pay tithe for the corn and hay growing upon the same." Sect. 6. "Provided always. . . . That if any such barren, waste or heath ground hath before this time been charged with the payment of any tithes, and that the same be hereafter improved or converted into arable ground or meadow, that then the owner or owners thereof shall, during seven years next after the said improvement, pay such kind of tithe as was paid for the same before the said improvement" (d). As lands which were in no parish paid tithes to the king, so Forest land. lands lying within the precincts of a forest (though also in a parish), if they were in the hands of the king, paid no tithes. And this privilege extended to the king's lessee, but not to his feoffee. But if the forest were disafforested, and within any parish, then they had to pay tithes in the hands of the king's lessee (e). It has been questioned, where a park has paid a modus, and Park. is disparked, whether the modus shall continue or be discharged, and tithes paid in kind; and all the books are clear, that if the modus was a certain consideration in money for all the tithes of such a park, such modus shall hold, notwithstanding it be dis (z) Vide infra, sect. 9. (a) Degge, pt. 2, c. 8; 2 Inst. pp. 651, 664. (b) Camell v. Ward, 1 E. & Y. p. 530; 1 Eagle on Tithes, p. 427. (c) See now 50 & 51 Vict. c. 59. (d) These provisions of this act are commented on in 2 Inst. pp. 655, 656; Degge, pt. 2, c. 19; and in (e) Bohun, Law of Tithes, pp. Glebe land. Abbey land. parked; but if the modus was for the deer and herbage of such a park, the modus is gone upon disparking (f). In like manner, if the modus has been to pay a buck and a doe for all the tithes of such a park, and the park is disparked, the modus shall continue, and the owner may give a buck and a doe out of another park; but if it was to pay the shoulder of every deer, or expressly a buck and a doe out of the same park, the modus is gone (g). But where the modus was part in money and part in venison out of the park (namely, two shillings and the shoulder of every deer), the court was divided; two being of opinion that the two shillings continued, and that the spiritual court should assign an equitable recompence for the shoulders, according to the number that had been usually paid; and the other two, that the money and venison making one entire modus, the one being gone, the whole was dissolved (h). Glebe lands in the hands of the parson did not pay tithe to the vicar, though endowed generally of the tithes of all lands within the parish; nor, being in the hands of the vicar, did they pay tithe to the parson; and this is according to the known maxim of the canon law, that the church shall not pay tithes to the church (). Non enim Levita a Levitis decimas accepisse leguntur (j). But this exemption did not extend to the lessee or feoffee of the vicar (k). But if the vicar were specially endowed of the small tithes of the glebe lands of the parsonage, then he had them, though they were in the hands of the appropriator (1). If a parson leased his glebe lands, and did not also grant the tithes thereof, the tenant had to pay the tithes thereof to the parson (m). And if a parson let his rectory, reserving the glebe lands, he had to pay the tithes thereof to his lessee (n). Sect. 43 of 6 & 7 Will. 4, c. 71, provides the mode of fixing a contingent rent-charge on glebe not in the hands of the owner. Sect. 6 of 2 & 3 Vict. c. 62, provides for the merger of such contingent rent-charge in land. All abbots and priors and other chief monks originally paid tithes as well as other men, until Pope Paschal II. exempted generally all the religious from paying tithes of lands in their (f) Gibs. p. 684; Wats. c. 47, p. 523; Bedingfield v. Feake, Mo. p. 909; Mascall v. Price, 1 Roll. p. 176. (g) Gibs. p. 684; Wats. c. 47, (h) Gibs. p. 684; Wats. c. 47, |