Power to on one benefice in favour of another. way invalidate the instruments of security under which loans have been granted by the Governors; the said provisions shall extend and apply to such instruments as if originally, fully, and expressly inserted therein " (y). Sect. 13. "Whereas under the provisions of Acts of Parliaadjust charges ment certain fixed charges have been made on the income of benefices in receipt of extraordinary tithes in favour of other benefices or of district churches or chapelries situated within the limits of parishes of which the incumbents are in receipt of extraordinary tithes: Be it enacted that after the passing of this Act the Ecclesiastical Commissioners may make such alterations in the charges aforesaid, having in view the altered state of things created by this Act, as the said Commissioners may deem most equitable" (z). Not under Tithe Act, 1891. Rent-charges created under this Act are not subject to 54 & 55 Vict. c. 8 (The Tithe Act, 1891) (a). 3 & 4 Vict. c. 15. Gardens or from rent charge. SECT. 8.-Exemption of small Gardens and Tenements. By 3 & 4 Vict. c. 15, sects. 25, 26, and 27, which now apply only to the cases in which tithes have not been commuted, it is enacted as follows: Sect. 25. "Whereas in many cases tithe-owners have, during lawns of small the seven years of average prescribed by the said first-recited extent may be exempted act" (6 & 7 Will. 4, c. 71), "forborne to take the tithes of lands used and occupied as gardens, lawns, or the like, or compositions in lieu thereof, on account of such lands being of small extent, and the tithes thereof being of inconsiderable value: be it enacted, that where in such cases the tithes of a parish or district have been commuted, whether by a parochial agreement or by a compulsory award, and it shall be shown to the satisfaction of the said commissioners that the rent-charge or rentcharges specified in the said agreement or award has or have been based upon the average value of the tithes of the said parish or district during the seven years of average, exclusive of any tithes in respect of such gardens, lawns, or such like small holdings, according to the provisions of the said first-recited act, and that no part of the said rent-charge or rent-charges has been agreed to be given or awarded in respect of the tithes of such gardens, lawns, or other such like small holdings, it shall be lawful for the said commissioners, if they think fit, to order and direct that no part of the said rent-charge or rent-charges shall be apportioned upon such gardens, lawns, or other such like small holdings." (y) Vide supra, Part V. Chap. II. (a) Vide infra, sect. 15. But see there sub-section 4 of s. 10 of 54 & 55 Vict. c. 8. cause a new in which the tenements seven years 1835. Sect. 26. "And whereas it hath happened that in cases where, The commisduring the seven years of average prescribed by the said first- sioners to recited act, tithes shall not have been demanded of certain apportiontenements, by reason of their small extent of or the small ment to be amount of such tithes, such tenements have notwithstanding been made in cases included in the apportionment of the rent-charge for the parish, apportionwhereby the occupiers of such tenements have become liable ment shall to have their goods distrained upon, and the tithe-owner has been have included subjected to much increased difficulty and expense in the collec- from which no tion of the rent-charge, contrary to the true intent and meaning tithe has been of the said first-recited act; and it is therefore expedient, under taken during certain restrictions, to give relief in such cases: be it enacted, previous to that in any such case in which the apportionment shall have in- Christmas, cluded any number of small tenements, exceeding in the whole one hundred, from which tenements no tithe or composition for tithe shall have been demanded or taken (notwithstanding their liability thereto) during the period of seven years next preceding Christmas in the year 1835, it shall be lawful for the commissioners, and they are hereby authorized, if they shall see fit, upon the application in writing of any ten or more of the owners or occupiers of such small tenements, or of the titheowner, and after satisfactory proof shall have been given that no part of the rent-charge has been agreed to be given or awarded in respect of the tithes of such small tenements, to cause a new apportionment to be made of the said rent-charge, and to order and direct that no part thereof shall be apportioned upon such small tenements." Provision is made by this and the following section (sect. 27) Expenses of for the making of this new apportionment and the costs new appor thereof : "And as to any part of such costs as may be borne by the tithe-owner, such tithe-owner, being an ecclesiastical beneficed person, may charge or assign the rent-charge as a security for the repayment of such costs in like manner as for the costs of the commutation under the said act" of 6 & 7 Will. 4, c. 71. tionment. SECT. 9.-Personal, House, and Mineral Tithes. By 6 & 7 Will. 4, c. 71, s. 90, "Nothing in this act contained, 6 & 7 Will. 4, unless by special provision, to be inserted in some parochial c. 71. agreement and specially approved by the commissioners, in which Act not to case the same shall be valid, shall extend to Easter offerings, Easter offermortuaries, or surplice fees (6), or to the tithes of fish or fishing, ings, &c. (6) Vide Part V., Chap. IV., infra. For Mortuaries, vide pp. 685-689, supra. extend to 2 & 3 Vict. c. 62. Power after award to make parochial agree ment for tithes of fish and mineral tithes. Fish in ponds. Deer. Fish in rivers. Fish in the sea. or to any personal tithes other than the tithes of mills, or any mineral tithes " (c). By 2 & 3 Vict. c. 62, s. 9, however, "It shall be lawful, at any time before the confirmation of any apportionment after a compulsory award in any parish, for the land-owners and titheowners, having such interest in the lands and tithes of such parish as is required for the making a parochial agreement, to enter into a parochial agreement for the commutation of Easter offerings, mortuaries, or surplice fees, or of the tithes of fish, or fishing, or mineral tithes; and all the provisions, conditions, limitations, and powers of the said recited acts or any of them, relating to parochial agreements, so far as the same shall in the judgment of the commissioners be applicable to the subject of the proposed commutation, shall be observed and applied in every such case as if no previous award had been made; and every such agreement may fix the period at which the rentcharge to be paid under such agreement shall commence, but so nevertheless that the same and the subsequent payments thereof shall be made on some day fixed for the payment of the rentcharge awarded in such parish, and shall be recoverable from time to time by the means provided in the said acts or either of them for the recovery of the rent-charges in the said parish" (d). It does not seem to be agreed, whether or how far fish in ponds or private fisheries are liable to pay tithes; and therefore the same must be referred to the customs of particular places. But it seems that of these no tithe can be due, where no profit is made thereof, and where they are kept only for pleasure, or to be spent in the house or family; as fish kept in a pond generally are (e); for they are like deer in a park, and rabbits in an inclosed warren, wild in their nature; and partaking of the realty, go to the heir (f). Oysters, or oyster lays or beds, are not tithable (g). Also fish taken in common rivers are tithable only by custom (h). And in this case Lindwood says it is only a personal tithe, and shall be paid to that church where he who takes them hears divine service and receives the sacraments (i). Where fish are taken in the sea, though they are feræ naturæ, and consequently not tithable of common right, yet by the custom of the realm they are tithable as a personal tithe, that is, (c) As to the recovery of these tithes when not commuted, vide infra, Part V. Chap. VI. sect. 2. (d) This section is only in force with respect to tithes not commuted. (e) Bohun, Law of Tithes, p. 135. (f) Nicholas v. Elliott, Bunb. p. 19; 1 Eag. & Yo. p. 698; Austen v. Nicholas, 2 Brown, P. C. p. 9; 1 Wood, Tithe Causes, p. 523; Flower v. Vaughan, Hetley, p. 147; 1 Eag. & Yo. p. 370. (g) Murray v. Skinner, 1 Wood, p. 541; 1 Eag. & Yo. p. 706. (h) God. p. 406; Wood, b. ii. c. 2. (i) Lindw. p. 195. Vide infra, p. 1192; 2 & 3 Edw. 6, c. 13, § 11. not by the tenth fish, or in kind, but by some small sum of money in consideration of the profits made thereby after costs deducted (4). By the case of Rex v. Carlyon (1), it appears to be the custom in the parish of Paul, in the county of Cornwall, to pay onetenth of all the fish caught and brought on shore within the parish; and there the court held that the proprietors of this tithe were rateable to the poor in respect of it (m). Upon which foundation, it is said, that if the owners of a ship do lend it to mariners to go to an island for fish, and are in consideration of such loan to have a certain quantity of fish when they come back; no tithe shall be paid by the mariners for what is given to the owners, because they are only to pay for the clear gain (n). A custom that tithes in kind ought to be paid to the vicar for all sea fish taken or caught with any nets or boats that had been housed or wintered at or in the parish in the interval between the last preceding fishing season and the season during which the fish were caught or taken (whether such nets or boats were the property of parishioners or not) has been established (o). Unless there be a clear custom to the contrary, the tithe of fish taken in the sea appears to be payable to the parson of the parish where the fisherman resides (p). 66 By a constitution of Archbishop Winchelsea, it is ordained, that Personal personal tithes shall be paid of artificers and merchandizers, tithes. that is, of the gain of their commerce; as also of carpenters, smiths, masons, weavers, inn-keepers, and all other workmen and hirelings, that they pay tithes of their wages; unless such hireling shall give something in certain to the use or for the light of the church, if the rector shall so think proper: to say, they shall pay the tenth part of the profit, deducting first all necessary and reasonable expenses (q). " that is c. 13. And by 2 & 3 Edw. 6, c. 13 (r), s. 7, every person exercising 2 & 3 Edw. 6, merchandizes, bargaining and selling, clothing, handicraft or other art or faculty by such kind of persons, and in such places as heretofore within these forty years have accustomably used to pay such personal tithes, or of right ought to pay (other than Personal such as be common day labourers), shall yearly at or before the tithes of gains feast of Easter, pay for his personal tithes the tenth part of his (k) 1 Roll. Abr. p. 636. See also Holland v. Heale, Noy, p. 108; 1 Eag. & Yo. p. 156; Stiles Case, 1 Eag. & Yo. p. 361; Thompson v. Field, 1 Eag. & Yo. p. 761; Gweavas v. Kelynach, Bunb. pp. 239, 256; 2 Eag. & Yo. p. 1; Gwill. p. 691; Jones v. Cleverden, 2 Wood, Tithe Causes, p. 283; Earl of Scarborough V. Hunter, Bunb. p. 43; 1 Eag. & Yo. p. 747. (7) 3 T. R. p. 385. (m) For more of this custom, see (o) Borlase v. Batten, 2 Eag. & (p) Williams v. Baron, 2 Eag. & This act is repealed, except as all but day to be paid by labourers. Customary payments by handicrafts men con tinued. Ordinary may cite and examine any person re clear gains; his charges and expenses, according to his estate, condition or degree, to be therein abated, allowed and deducted." Sect. 8. "Provided always that in all such places where handicraftsmen have used to pay their tithes within these forty years, the same custom of payment of tithes to be observed and continue." Sect. 9. "If any person refuse to pay his personal tithes in form aforesaid, then it shall be lawful to the ordinary of the diocese where the party is dwelling, to call the same party before fusing to pay. him, and by his discretion to examine him by all lawful and reasonable means, other than by the party's own corporal oath, concerning the true payment of the said personal tithes." Tithes of fish. London, &c. Restrictions imposed by this act. Cases as to Sect. 11. "Provided also that this act or anything therein contained shall not extend to any parish which stands upon and towards the sea coasts, the commodities and occupying whereof consisteth chiefly in fishing, and have by reason thereof used to satisfy their tithes by fish; but that all such parishes shall pay their tithes according to the laudable customs, as they have heretofore of ancient time within these forty years used and accustomed, and shall pay their offerings as is aforesaid." Sect. 12. "Provided also, that this act or anything therein contained shall not extend in any wise to the inhabitants of the cities of London and Canterbury, and the suburbs of the same, nor to any other town or place that hath used to pay their tithes by their houses, otherwise than they ought or should have done before the making of this act This act restrains the canon law in three things: First, where the canon law was general, that all persons in all places should pay their personal tithes, the act restrains it to such kind of persons only, as have accustomably used to pay the same within forty years before the making of the act. Secondly, whereas by the ecclesiastical laws they might before this act have examined the party upon his oath concerning his gain, this act restrains that course, so that the party cannot be examined upon oath. Thirdly, by this act the day labourer is freed from the payment of his personal tithes (s). It cannot be intended upon this act, that if such tithes have been sometimes paid within forty years, they are therefore due; but they must have been accustomably, that is, constantly, paid for forty years next before the act (t). If it be demanded how such payment must now be proved forty years before the making of the act; the answer is, as in other like cases, à posteriori; by what has been done all the time of memory since the act (u). Sir Simon Degge says, the only case that he could find for tithes on trade above a hundred years before his time, where the tithes of the profits. profits of such trades were sued for by any clergyman, was that (s) Degge, pt. 2, c. 22. (t) Ibid. (u) Ibid. |