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8. Of removing Tithes.
If the Parson dues not take away his tithes within 127a reasonable, time, but suffers the same to continue upon the land to the damage of the parishioners, an action on the case lies. Noy. 31.
But to justify the parishioners in taking tithes, damage feasant, he ought to shew that the tithes continue a long time upon the land. 3 Bul. 336.
Tho’ the proprietor of tithes does not remove them in a convenient time, the owner of the land cannot put in his cattle and depasture them. 1 Ld.. Raym. 187. 8 T. Rep. 72.
The following alphabetical arrangement will furnish useful information on the subject of tithes.
Acorns.—Acorns, as they yearly increase, are liable to the payment of tithes; but this is where they are gathered and sold, and reduced to a certain profit: not when they drop, and the hogs eat them. 2 Inst. 643. Hetl. 27. They are a small tithe. Bunb. 640.
Aftermath shall pay tithes, but not after-pasture, except by custom. 2 Inst. 652. 2 Danv. Abr. 589. L. Raym. 243. But see Grass.
After-pasture vide Aftermath.
Agistment.—Tithe of agistment is a predial small tithe, (3 Anstr. 760.) and is usually the tenth part of the value of the herbage eaten by cattle not titheable. 1 Anstr. 332. and is not within the Stat. 2 and 3 Ed. 6. c. 13. s. 3. Agistment of cattle upon pasture land, which hath paid no other tithes that year, pays tithe for the cattle. But where meadow grounds have paid tithe of hay the same year, they are not liable to an agistment tithe for cattle depastured on the after crop. 2 Gwill. 613. If a man breeds or buys barren unprofitable cattle and sells them, he shall pay for the agistment; but, if he depastures his land with his cattle, used in husbandry in the parish where depastured, he shall 128pay no tithes. Nor is tithe payable for milch cattle reserved for calving, while they are dry; but, if afterwards sold, or milked in another parish, an agistment-tithe is due for them for the time they were dry. Hetl. 100. 1 L. Raym. 130. No tithe is due for the pasture of young cattle, reared to be used for husbandry or the pail. Cro. Eliz. 476. But, if such young beasts are sold before they come to such perfection as to be fit for husbandry or to give milk, tithe is payable. Hetl. 86. An agistment-tithe is due for all such cattle as are kept for sale. Cro. Eliz. 446, 447. Jenk. 28. pl. 6. Cro. Car. 237. Cro. Jac. 430. 1 Roll. Abr. 647. pl. 14. But if any cattle which have neither been used in husbandry nor for the pail, are killed and spe at home, no tithe is due for their pasture. Jenk. 281, pl. 6. Cro. Eliz. 446, 476. Cro. Car. 237. Agistment tithe is due for depasturing any sort of cattle, the property of a stranger, to be paid by the occupier of land. Cro. Eliz. 276. Cro. Jac. 276. Bumb. 1 Freem. 329, 2 Gwill. 502. No agistment tithe is due for any beasts depastured on the headlands of ploughed fields, so that they are not wider than is sufficient to turn the plough and horses upon. 1 Roll. Abr. 646. pl. 19.
Where the occupier sows turnips tho’ on fallow ground, and then agists the sheep of a stranger, or fattens his own and kills them, he shall pay tithes for the herbage or agistment.. 2 Gwill. 537.
Horses kept on one farm for its cultivation, and used occasionally on another farm in a different parish, shall not pay agistment tithe. Alitèr if habitually so used: 2 Anstr. 498.
Sheep kept principally for the sake of folding, if sold out of the parish before shearing time, shall pay agistment tithe. 2 Amstr. 500.129
Agistment tithes are payable for sheep depastured after shearing time, and sold off or taken out of the parish, before the next shearing day, tho’ the sheep so sold or disposed of, be immediately succeeded by others, and the stock at the next shearing day consist of the same number it did at the last. 3 Gwill. 1048.
Where sheep are agisted part of a year on a common in one parish, appurtenant to a farm in another parish, an agistment tithe is not due to the Parson of the former, tho’ the sheep be all shorn in, and the tithe of the wool wholly paid to the Parson of the latter. 3 Gwill. 1022.
If a man holds a farm and lives in the parish of A. and holds other lands quite distinct from, and independent of his farm, and no way exempted in the parish of B. and depastures his sheep upon the lands in that parish, but shears them in A. the Parson of B.. shall have an agistment tithe. 3 Gwill. 1026. 1029 in not. 1030 in not.
The demand for agistment tithe, should be against the occupier, not against the owner of the beasts. 2 Gwill. 627 in not. 3 Gwill. 859. in not. 4 Gwill. 1584. See Cattle.
Alder-trees, Ash, Asp, Beech, &c. See, Trees.
Apples. Windfall Apples are titheable. 2 Gwill. 579.
Bark of Trees is not titheable, if the trees were timber. 11 Rep. 49. See Bunb. 98.
Barley and Oats are titheable in cocks and not in the swaith. 3 Gwill. 967.
Barren Land, that is land of which no profit ariseth or groweth, is not titheable; and, by Stat. 2 and 3 Edw. VI. c. 13. s. 5. barren land improved, shall, for the first seven years, be discharged of tithes; 130but it shall, during the seven years, pay such small tithes as have been used tobe paid before. I Gwill. 59. 60. And, if land is over-run with bushes, or become unprofitable by bad husbandry, it is not barren land; and, if it be grubbed, or ploughed and sown, it immediately pays tithes. 2 Inst. 656. Cro. Eliz. 475. 2 L. Raym. 991.
Fenny-Land drained is not within the stat. of Edw. but shall pay tithes immediately. So land grubbed up and made meadow or arable. So land where wood grew, and is stocked up and converted into tillage. I Gwill. 166. 2 Gwill. 562, 563, 549, 714, 823.
Newly inclosed lands, which will not produce crops by the ordinary mode of culture, are entitled to exemption under the Stat. of Edw. 3. Gwill. 1197. 4 Gwill. 1594.
If land, after being grubbed up will produce nothing, without being dunged or chalked, it is within the statute; if it will produce one crop with only ploughing, it is not. 1 Vesey 115.
Lands inclosed with hedge and ditch, are not exempted as waste or heath. 3 Com. Dig. 501.
Bees. Tithes are not payable of Bees, but for their honey and wax by the tenth measure and tenth pound. 1 Roll. Abr. 651. 3 Cro. 404, 559. F. N. B.402.
Bricks pay no tithe; for, they are of the substance of the earth, and of no annual increase. 1 Cro. 1.
Calves are titheable; and the tenth calf is due when weaned, and the Parson is not obliged to take it before; but, if in one year a person hath not ten calves, the Parson is not entitled to tithes in kind that year, without a special custom for it; though he may take it in the next year, throwing both 131years together. 1 Roll. Abr. 648. Raym. 277. For calves bought in, and suckIers, no tithes are due.
A single Calf is titheable, and the tithe is the tenth part of the value, when taken from the Cow to be sold or killed. 2 Gwill. 541.
Cattle. sold pay tithes; but not such as are kept. for plough or pail: but, if such cattle are sold before used, or if, being past labour, or barren, are fatted and sold, or are used in another parish, tithes are due; 3 Gwill. 1110. 2 Gwill. 558. but not if the owner kill and spend them in his house. 3 Gwill. 861. Agistment tithe is not due for saddle horses, or horses used for mere pleasure. 4 Gwill. 1571, 1582. Cattle feeding in large commons, where the bounds of parishes are not certainly known, shall pay tithes where the owner of them lives; and, if fed in several parishes, and they continue above a month in each parish, tithes shall be paid to the two parishes proportionably. 1 Roll. Abr. 635, 646, 647. Hardr. 35. Stat. 2 and 3 Edw. VI. c. sect.. 3. See Yearlings and Young Animals.
If a man depastures unprofitable cattle in his ground, he shalt pay tithes in proportion to the number of the cattle, and the value of the land, generally at the rate of 2s, in the pound, and the same proportion is to be observed if they are travelling cattle that come and go successively. Bunb. 1. Where the number or kind of cattle agisted could not be ascertained, a per centage in the pound on the rent was allowed. 2 Gwill. 660.
Cattle fed upon meadow ground after it is mowed, shall not pay tithes unless by custom. Bunb. 1.
Tithes for depasturing unprofitable cattle, ought to be paid by the: occupier, not by the agister. Bunb. 3132
No tithes shall be paid for cattle depasturing that Are trespassers. 2 Gwill. 544.
Chalk and chalk-pits pay no tithes, nor do bricks, clay, coal, or mines, they being of the substance of the earth, and not annually increasing. 2 Inst. 651. Vide Gravel.
Cheese is a small tithe and pays tithe by custom, where tithe is not paid for the milk; but, if the milk pays a tithe, the cheese is discharged. 1 Roll. Abr. 651 See Milk.
Cherries.—Wild Cherries are titheable. 2 Gwill. 530. 657.
Chickens are not titheable, if tithe is paid for the eggs. 1 Roll. Abr. 642.
Cinquefoil. The seed and stalk is to pay tithe as grass. 2 Gwill. 535.
Clay is not titheable. 3 Com. Dig. 500.
Clover.—Clover seed is a small tithe, and as such is due to the Vicar. Com. Rep. 633. Bunb. 344. S. C.
Clover Grass is titheable as hay. 2 Gwill. 830. Both the first and second crop are titheable. 2 Gwill. 584. To be set out in cocks. 4 Gwill. 1489.
Clover and Vetches cut green and given to cattle of husbandry, pay no tithes. 2 Gwill 679. But it was afterwards held that this depends upon the sufficiency of other seed. 4 Gwill. 1504.
Clover seed is not to pay tithe at the mill; but the tenth part of the stalk, &c. is to be set out in the field after it is severed from the ground. Id. 1615.
Coals pay no tithe of Common Right. 1 Rol. 637. 2 Inst. 651.
Coleseed, tho’ sown in fields in a large quantity, is a small tithe. 2 Gwill.533.133
Colts pay tithes the same as calves. 1 Roll. Abr. 642.
Copper. pays no tithe of common right.
Conies are titheable only by custom, for those only that are sold. 2 Danv. Abr. 583.
Corn pays a predial tithe. It is tithed by the tenth cock, heap, or sheaf; which, if the owner do not set out, he may be sued under the stat, 2 and 3 Edw. IV. c. 13. And it must be set out before the farmer removes his nine parts. Bunb. 186. If corn be sold standing, the vendee shall pay the tithes; but, if sold after severance, the vendor must. Hard. 380, 381. 2 Gwill. 516. 537. If the proprietor of tithes leave them on the land more than a reasonable time after they are set out, and after he has notice thereof, the owner of the land cannot justify turning in his cattle upon the land to de-pasture it, in the usual course of husbandry, whereby the cattle consume the tithes; but his remedy is either to bring an action, or to distrain the tithes, as doing damage. 2 Vent. 48. 1 Sid. 283. L. Raym. 189. 8 T. Rep. 72. No tithes are due of stubbles of corn or fern, tho’ mowed and used as fodder or manure. 4 Gwill. 1438. 2 Inst. 261, 652. 1 Roll. Abr. 640. pl. 14. There are various opinions, whether rakings of corn involuntarily scattered, are titheable; but the better opinion seems to be, that such rakings are not. See I Roll. Abr. 645. pl. 11. Cro. Car. 278, 475. Freem. 335. Moor, 278. 12 Mod. 235. 2 Gwill. 477. But if left covinously, and are of great value, they are 2 Gwill. 447.
Deer are not titheable, being feræ naturæ, wild. by nature; though in parks, &c. they pay tithe by custom. Nor fawns. 2 Inst. 651.
Doves, if kept in a dove-house, and not spent in the owner’s house, but sold, are titheable. 1 Vent. 6. 12 Mod. 77. 1 Roll. Abr. 644., Z. pl. 5, 6.134
Ducks. Tithes are not payable for a decoy of wild ducks, or other fowl taken in a decoy; nor for the eggs of tame ducks kept for the service of a decoy. 2 Gwill. 531.
Eggs pay tythes, where tithes are not paid for the young, except such as are wild by nature. 1 Roll. Abr. 636, 642. 2 P. Wins. 463. But no tithes are due of the eggs or young of any birds or fowls, which are kept only for pleasure. Bro. Dism. pl. 20.
Fallow Ground is not titheable for pasture in that year in which it lies fallow, unless it remains beyond the course of husbandry. 1 Roll. Abr. 642. 3 Com.. Dig. 491.
Fenns. drained and cultivated, pay tithes. 4 Roll. Rep. 354. They are not within the Stat. Edw. Vide barren land.
Feræ Naturæ.—Creatures of this kind are not titheable. 2 Roll. 458. 2 Inst. 651.
Fish, taken in the sea, or common or open rivers, or in a pond are titheable only by custom; even though they are in those rivers taken by one who has a several fishery; and the tithe is to be paid in money, and not the tenth fish; but fish in ponds and rivers, enclosed, ought to be set out as a tithe in kind. 2 Danu. Abr. 583, 4. Noy. 108. 1 Roll. Abr. 636. Cro. Cur. 332. 1 Lev. 179. 2 Gwill. 616.
Flags are not titheable. 2 Inst. 651.
Flax.—Every acre of hemp or flax sown shall pay yearly 5s. for tithe, and so proportionally, and no more. Stat. 11 and 12 W. III. c.16. s. 81. 1 G. 2. c. 26. Flax is a small tithe. ilk M. S. Rep. 72. b. Warton v. Lisle. Trin. 5. W. and M.
Forest-lands shall pay no tithes while in the hands of the king; but, in the hands of a subject they shall. 1 Roll. Abr. 655. 3 Cro. 94. 2. Gwill. 486, 501.135
Fowls, as hens, geese, ducks, and turkeys, are to pay tithes in the eggs or the young, according to custom, but not both. 2. P. Wms. 463. The rule extends to all birds and fowls, except such as are wild by nature: Moor, 599. 1 Roll. Abr. 642, pl. 6. 2 P. Wms. 563. Or are kept only for pleasure. Bro. Dism. pl. 20. Of geese, ducks and swans, the tithes are usually paid in the young, if custom does not otherwise determine, and of turkeys and hens in the eggs. 3 Com. Dig. 497.
Fruit, as apples, pears, plumbs, cherries, &c. pay tithes in kind when gathered; and ought to be set out according to the statute. 2 Inst. 621. And (where custom requires it) notice shall be given to the Vicar when gathered; and, if it be spoiled by reason of his not fetching it away in due time, be must bear the loss. Cherries in hedgerow in Buckinghamshire are titheable. Bunb. 283.
Fruit-trees, cut down and sold, are not titheable, if they have paid tithe-fruit that year before cut. 2 Inst. 621. But tithe shall be paid for fruit-trees sold out of a nursery, tho’ the fruit pay tithes. 2 Gwill. 515.
Furzes, if sold, pay tithe; not if used for fuel in the house, or to make pens for sheep, or fences, &c. Wood’s Inst. 166. But furze cut in one parish is not exempted from tithe by being employed for the purposes of husbandry in another parish. 3. Gwill. 1028.
Gardens are titheable as lands, and therefore tithes, in kind are due for all herbs, plants, and seeds, sown in them; but money is generally paid by custom or agreement.
Grain.—If a Parson has tithes of all grain, he shall have the tithes of seed of clover, tho’ the Vicar has the tithes of the clover grass. Skin. 231.136
Grass mown is titheable by payment of the tenth cock, or according to custom. The Parson may let it lie till made into hay. If grass be sold standing, the buyer pays the tithe; if sold after cut, the seller. I Str. 245. 1 Roll. Abr. 644, 5. 2 Gwill. 472. Tithe of hay is to be paid, although beasts of the plough or pail, or sheep, are to be foddered with such hay. Cro. Jac. 47. 1 Roll. Abr. 650. pl. 12 Mod. 497. But no tithe is due of hay grown upon the headlands of corn fields, provided that such headlands are not wider than is sufficient to turn the horses and plough upon. 1 Roll. Abr. 646. pl. 19. It is laid down in one old case, that, if a man cuts down grass, and, while it is in the swathes, carries it away and gives it to his plough cattle, not having sufficient sustenance for them otherwise, no tithe is due. 1 Roll. Abr. 645. 2 Anstr. 481. In one case the Court of Exchequer seemed to be of opinion, that no tithe is due of vetches or clover, cut green, and given to cattle in husbandry. Bunb. 279. But, in another case, it was afterwards held, that the right to tithe of hay accrues upon mowing the grass; and that the subsequent application of it, while in grass, or when made into hay, shall not, although beasts of the plough or pail are fed with it, take away the right. 12 Mod. 498—See Aftermath, ante.
Gravel pays no tithe of common right. Nor of common right are tithes payable for things parcel of the freehold: as quarries of stone. Nor coals, tin, chalk, lead, copper or other ore, clay, turf used for fire, flags, marle. 3 Com. Dig. 500. But a man may prescribe for tithes of some things for which no tithes are due of common right. 2 Inst. 664.137
Hay is a predial great tithe. [See Grass.] The tenth cock, not the tenth swathe, is to be set out and paid, after made into hay, by the custom of most places; and by custom generally, but not of common right, the parishioners shall make the grass cocks into hay for the Parson’s tithe; but, if they are not obliged to make the tithe into hay, they may leave it in cocks, and the Parson must make it; for which purpose he may come on the ground, &c. 1 Roll. Abr. 643, 647, 650. 2 P. Wins. 523. 3 Esp. Rep. 31.
Herbs in gardens are small tithes. 3 Com. Dig. 49.
Honey is a small tithe.—See Bees.
Hops are a small tithe; titheable after they are gathered from the bind, and should be measured in baskets before being dried; and every tenth basket set out for the tithes. Walton v. Tryon, 5 Bro. P. C. 99. And it seems that a custom to set out the tithes by the tenth row if equal, and by the tenth hill, where the rows are unequal, leaving the binds uncut, and the poles standing, cannot be supported. 7 T. Rep. 86. Where the Parson hath tithe of hops, it shall be looked upon as usage, and that at the time of the endowment they were looked upon as great tithes, and that the Vicar never was endowed thereof. MS. Rep. 72. Wharton v. Lisle per Eyre, Trin. 5. W. & M.
Horses. See Agistment.
Hot-houses.—Hil. 42 G. 3. decreed in Exchequer that fruits, &c. forced in hot-houses are not titheable.138
Houses for dwelling are not properly titheable. A modus may be paid for houses in lieu of tithes of the land upon which they are built; and many cities and boroughs have a custom to pay a modus for their houses. 11 Rep. 16. 5 Inst. 659. 3 Gwill. 630.
Lambs and Kids are small tithes, and pay a tithe as calves; but, if lambs are weaned in one parish, and do not tarry there thirty days, no tithe is due to the Parson of that place. If there be a custom that the parishioners, having six lambs or under, shall pay so much for every lamb; and, if he have above that number, then to pay the seventh, it is good. 3 Cro. 403. Tithe of lambs is not due of common right unless there be ten. 1 L. Raym. 677. The usual time of tithing lambs is when they can live without the dam, and when the occupier weans his own lambs and not before. Bunb. 133. 2 Gwill. 530. The first of August and not the first of May, is the proper time to set forth tithe Lambs. 2 Gwill. 630.
Lead may pay tithes by custom, as it does in some counties; but a doth not without it. 2 Inst.. 651, Het. 14.
Lime and Limekilns are titheable only by custom. 1 Roll. 637, 642.
Lops and Tops.—Vide Trees.
Madder is now titheable in kind. It was liable for twenty-eight years, only to a modus of 5s. but the statutes for that purpose are now expired. Stat. 31 Geo. II. c. 12. 5 Geo. III. c. 2.
Marl is not titheable of Common Right. 2 Inst. 651.
Mast of oak and beech pays tithes, in the same circumstances as acorns..139
Milk is a small tithe, and is titheable where no tithes are paid for cheese all the year round, except when custom over-rules; and it is payable by every tenth meal’s milk, and not the tenth of every meal’s milk. 2 Gwill. 527, 618, 826. And not the fifth meal of the evening, but the whole milk of the tenth day. 3 Gwill. 1101, 1110, 1200. And it was formerly held, that it was to be brought to the house of the Parson, &c. in which particular this tithe differs from all others, which must be fetched by the receiver. But this is only where there is a special custom; and it seems now decided, that the tithe of milk is by setting out every tenth morning and evening’s meal in clean vessels belonging to the owner of the milk, and leaving the same therein till the vessels are again wanted by the owner; and, if not fetched away by the Parson. prior to that time, the owner is at liberty to throw it on the ground; and in the intermediate time the owner is not answerable for any accident that may happen to it. Ambler 72. In some places they pay tithe-cheese for milk; and in others some small rate, according to custom.. Cro. Eliz. 609. 2. Danv. Abrid. 596.
Mills.—Tithes are payable of all mills not as ancient as 9 Ed. 2. but such ancient mills are discharged by articuli cleri, c. 5. 1 Gwill. 130 in not. The court will presume mills to be ancient mills, if there be no evidence of their corn having paid tithe. 1 Gwill. 644. A fulling mill, paper mill, iron mill, tin mill, &c. pay no tithe, because they are things invented for the ease of man’s labor. 1 Gwill. 354, 357. Corn ground at a newly erected mill for the purpose of distillation, by a person not resident in the parish where the mill is worked, is not 140titheable. 3 Gwill. 794. The tithe of corn ground in a horse malt mill, is a personal tithe, and due only where it had been paid 49 years before; and not payable by the tenth toll dish of the corn ground, but by a tenth part of the clear profit, over and above all incidental charges of rent, &c. 1 Bro. Par. Cas. 157. 4 Gwill. 1460. It is now settled that tithes of all mills are personal tithes; and only a tenth part of the clear profit, deducting all charges and expences, is payable as tithes. Bro. P. C. & 2 P. Wms. 463.
Nurseries of trees, &c. shall pay tithes, if the owner digs them up and makes profit of them by selling them. 2 Danu. Abrid. 583. 1 Co. 32d. 2 Jon. 416. Gadb. 491. 2 Gwill. 504, 515. And if he pulls them up himself and sells them, he shall pay the tithe; but if he sells them altogether to another, the buyer shall pay the tithe. Hardres. 380. and if some yield fruit and others not, those which yield fruit, shall not exempt those which yield none, when they are all sold together. 2 Gwill. 515.
Orchards pay tithes, both for the fruit they produce, and the grass or grain, if any be sown or cut therein. 2 Inst. 652.
Ore. Tithe ore is not due, but by particular custom. 2 Gwill. 535.
Parks are titheable by custom for the deer and herbage; and, when disparked and converted into tillage, they shall pay tithes in kind. The tithes of parks may be part certain and part casual; and 2s. a year, and the third shoulder of every deer, hath been paid as tithe for a park. 1 Roll: Rep. 176. Hob. 37, 40.
Partridges and Pheasants, as they are they 141 feræ naturæ yield no tithes of eggs or young. 1 Roll. Abr. 636.
Pease, if gathered to sell or feed hogs, pay tithes; but not green pease spent in the house. I Roll. Abr. 647. Tithes of beans and pease whether sown in the fields or gardens, are great tithes, and do not fall under the denomination of tithes of gardens, technically called, decima hortorum. 5 Bro. P. C. 493. The tithes of pease must be set out as soon as they come into proper divisions or parcels, so as to let the tenth be seen and judged of, and husbanded, 4 Gwill. 1504.
Pigeons pay tithes when sold; and this holds good if they lodge in holes about the house, as well as in a dove-house; and, if spent in the house, they may be titheable by custom, but not of common; 2 Danv. Abrid. 583, 1 Rol. 642. l. 43. The Vicar. is entitled to the tenth of the value if sold.
Pigs are titheable as calves. Ibid. And the tithe belongs to the Parson where the sow is kept, tho’ she farrows in another parish. 2 Gwill. 607.
Potatoes.—These being in their nature a small tithe, sowing of them in greater quantities makes no alteration. 2 Atk. 364. Com. Rep. 639. They must be tithed on the spot before they are removed. 3 Gwill. 1110.
Quarries of Stone, &c. are not subject to pay tithes, because they are part of the inheritance; and tithes ought to be collateral to the land, and distinct from it. 1 Roll. Abr. 644.
Rakings of Corn.—See Corn.
Saffron pays. a predial and small tithe. 1 Cro. 467.142
Salt is not titheable but by custom only. 1 Bunb. 10.
Seeds of clover, rye grass, saintfoin, and other grass seeds, herbs, hemp, &c., are small tithes. 3 Gwill. 926. But tithes shall not be paid of seeds of herbs and plants where it has been paid of the herbs or plants themselves; nor è contra. 3 Com. Dig. 498. As to the seed of Clover see Grain.
Sheep.—A tithe is paid for sheep, lambs, and wool; and therefore they pay no tithe for their feeding. [See Agistment.] If sheep are in the parish all the year, they are to pay tithe-wool to the Parson; but, if removed from one parish to another, (without fraud,) the Parson of each parish is to have tithe pro rata, where they remain thirty days in a parish; and, if they are fed in one parish, and brought into another to be shorn, the same tithing is to be observed. 1 Roll. Abr. 642, 647. 3 Cro. 237. It seems now the rule is, that tithe of wool shall be paid where the sheep are shorn, and agistment-tithes in other parishes; where they have been depastured. Shaw’s Law of Tithes. The time for paying tithes of sheep is at shearing; the tithe of wool is satisfaction for pasturage for the year past. Ambl. 149. If after shearing the occupier depastures sheep, and sell them before shearing time comes again, he must pay tithe for such pasturage. Ibid.
Stone in quarries pay no tithe of common right. 1 Roll. 637. l. 5. Cro. El. 277. 2 Inst. 651, 3 Seld. 1201. 2 Lev. 79.
Tares, Vetches, Clover, &c. are titheable; but, if they are cut down green, and given to, the cattle of the plough, where there is not a sufficient pasture in the parish, no tithe shall be paid for 143them. 1 Cro. 139; Bunb. 279. They are a great tithe whether green or ripe, and belong to the Rector. Bunb. 279. in not.
Teazles are small tithes. 2 Gwill. 564.
Tiles are no yearly increase, and not titheable. 2 Inst. 651. 2 Mod. 77.
Tin pays no tithe of common right. 1 Rol. 637. 1. 12. 2 Inst. 651.
Tobacco is a small tithe.,
Trees.—-Wood is, de jure a great tithe. Timber-trees, such as oaks, ashes, and elms, and in some places beech, &c. above the age of twenty years, were discharged of tithes by the common law, before the Stat. 45 Edw. III. c. 3; and the reason is, because such trees are employed to build houses; and houses, when built, are not only fixed to, but part of, the freehold. Loppings of timber trees, which timber trees are above twenty years pay no tithes, for, the branch is privileged as well as the body of the tree, although used for firing; and the roots .\of such trees are exempted as parcel of the inheritance. Trees, cut for plough-bote, cart-bote, &c. shall not pay tithes, although they are no timber; but all trees, not fit for timber, and not put to those uses, pay tithes. 1 Roll. Abr. 650. Cro. Eliz. 447, 499. Coppice-wood, which has been usually felled for firiug, of whatever age it is, is always titheable. Sid. 300. 1 Lev. 189. And all germins, which spring from the roots of trees that have been felled, are titheable. Walton v. Tryon,. Mich. 25 Geo. II. Godb. 175. Bro. Dism. pl. 14. 11 Rep. 4. when the wood of coppice is felled, some trees growing therein, which are of the age of twenty years, and have never been lopped, are lopped, and these loppings are promiscuously bound up in faggots with the coppice-wood, tithe must be 144paid of the whole; because, it would be very diffcult to separate the titheable wood from that which is not so; and the owner ought to suffer for his folly in mixing them. Walton v. Tryon and Bimb. 98. Tithes are in general due of ash, beech, birch, hornbeam,. hazel, holly, willow, sallow, alder, elder, maple, and whitethorn trees, (and of fruit-trees, see Fruit-trees,) of whatsoever age they are; because, these are not timber. Plowd. 470. Cro. Eliz. 477. 1 Cro. Jac. 190. 1 Roll. Abr. 640. pl. 5, 6. Brownl. 94. But if the wood of any of these trees is used in a particular part of the country, where timber is scarce, in building and repairing, no tithe is due of such wood, (if of the age of twenty years,) in that part of the .country. Hob. 289. Brownl. 24. If a timber tree be lopped before it is 20 years old, and afterwards be lopped every 10 or 7 years, tithes shall be paid of such lops. 2 Gwill. 833. Tithe is due of wood made into charcoal. Id. 577. Tithes is due of broom made into bavins; and of the lops and tops of old timber pollards, and of wood growing in hedge rows. Id. 542. But it is said the lops and tops of old pollard oaks and ashes are exempt from tithe, Ambl. 139. It is laid down in several old books, that; if a timber-tree, after it is of the age of twenty years, decays, so as to be unfit to be used in building, no tithe is due of the wood of this tree, because it was once privileged. 11 Rep. 481 Cro. Eliz. 477. Cro. Jac. 100. 1 Roll. Abr. 480, p1. 2. But since Stat. 45. Ed. 3. 3. no tithes ought to be paid of great trees of the age of 20, 30, or 40 years, and if they are demanded of such trees, a prohibition goes. As of oak, ash, elm, of above 20 years growth, for they are timber, throughout the whole kingdom.—145So of beech, maple, &c. or other trees in a country where they are used for timber. 1 Rol. 640. 1. 30. Mo. 541. Noy. 30. 2 Rol. 83. Tho’ oaks, &c. of above 20 years, are decayed, and only fit for fuel. Mo. 541. Cro. El. 477. So if oaks, &c. are topped within the age of 20 years, and afterwards the lops are suffered to grow above 20 years, no tithes are demanded of these lops, for they are timber. 1 Rol. 640. 1. 7. 2. Leo. 79. So if oaks, &c. of above 20 years be topped or lopped, usually within 20 years, no tithes are due for the tops or lops. 1 Rol. 640. 15. Semb. 2 Cro. 100. Cro. El. 477, 8. Mo. 908. Godb. 175. Nor for the trunks of oaks, &c. after 20 years, tho’ become rotten. 1 Rol. 640. l. 20. 11 Co. 48. a. 81. a. Nor for the germin of such timber-trees, which grow de radicibus et stipitibus, after the tree is cut down. 1. Rol. 640. l. 20. 11 Co. 48. b. Nor for the bark of such trees; for it is privileged in respect of the tree. 1 Rol. 640. l. 35. 11 Co. 49. a. Nor for a small quantity of underwood, put in faggots with the lops of oaks, &c. 2 Leo. 79. Cro. El. 347. Nor for roots, or stubs of trees, or underwood cut, for which tithes were paid; if they be rooted up before new germins grow. 1. Rol. 637. l. 35. Mar. 58. 64. Nor for the wood of fruit trees, cut the same year in which the tithe was paid for the fruit. 2 Inst. 621. Nor for wood used for fences. Mo. 917. 1 Rol. 644. l. 40. 2 Inst. 652. Nor for wood for burning of bricks for repairing the house of the parishioner. Cod. Ju. Eccl. 708. 1 Rol. 645. l. 10. Nor for dotards, used for fuel. Mo. 908. Nor for wood for necessaries in the house, and for fences by which the Parson has uberiores decimas. 1 Sid. 447. Nor for broom, furze, &c. used for firing in the house 146of the parishioner. Cro. El. 609. Mo. 909. 1 Rol. 644. b. 43. Tithes of underwood shall be paid by him who cuts it. So tithes of a nursery of plants shall he paid by him who pulls them up. Hard. 380.—Vide Nursery.
Turfs used for fuel are part of the soil, and tithe-free. 2 Inst. 651. 1 Rol. 636. l. 10.
Turnips are reckoned among predial small tithes, and the tithes of them shall be paid as often as they are sowed, though twice or more on the same land and in the same year. So if eaten off the land by sheep or barren cattle. Bunb. 10. So if drawn and eaten by milch cows or sheep. Bunb. 314. 2 Gwill. 593, 606. And tho’ the sheep paid tithe of wool. 2 Gwill. 665. The tithe is also payable by the occupier of the land, and not by the owner of the beasts. 3 Gwill. 859. The tithe of turnips must be set out in heaps, where the quantity is sufficient to admit it. Id. 945. Tithe is due of turnips, tho’ sown after corn is cleared, and fed with sheep and barren cattle, and tythes of lambs and wool had been before rendered. Bunb. 314.
Underwood is titheable, though the tithe is not of annual payment; and is set out, while standing, by the tenth acre, pole, or perch; or, when cut down, by the tenth faggot or billet, as custom directs; and, if he who fells the wood does not set out the tithe, he is liable to treble damages by Stat. 2 and 3 Edw. VI. c. 13. But, if the underwood is used for firing in a house of husbandry, or to burn brick to repair the house, or for hedging and fencing the lands in the same parish, it may be discharged from tithe. 2 Inst. 642, 643, 652. Hob. 250. Danv. Abr. 597.147
Waste Ground, whereon cattle feed, is liable to the payment of tithes. 2 Danv. Abrid.—Vide Barren Land.
Wax is a small tithe.—See Honey.
Wheat, is by the common law titheable in the sheaf. 3 Gwill. 966. 4 Gwill. 1504.
Woad, growing in the nature of a herb, is a predial small tithe. Hutt. 77. Cro. Car. 28.
Wood [See Trees] is generally esteemed to be a great tithe. If wood-grounds have likewise timber-trees growing on them, and consist for the most part of such trees, the timber-trees shall privilege the other wood; but, if the wood is the greatest part, then it must pay tithes for the whole. 13 Rep. 13. If wood be cut to make hop-poles, where the Parson hath tithe-hops, no tithe shall be paid. Hughes’ Abr. 689. Banb. 20, 73. Wood ought to be bound up by the occupier, before the tithe is set out. 2 Gwill. 581. Tithe wood must be set out by the owner or occupier upon the land, at the time of falling. 2 Gwill. 830.—Vide Trees.
Wool, is a mixed small tithe, paid when clipped; one fleece in ten, or, in some places, one in seven, is given to the Parson. If there is under 10 pounds of wool at the shearing, a reasonable consideration shall be paid, because the tithes are due of common right; and, if less than 10 fleeces, they shall be divided into 10 parts, or an allowance be otherwise made. All sheep killed, and sheep which die, pay tithe-wool; and neck-wool, cut off for the benefit of the wool, but not if it is to preserve the sheep from vermin, brambles, &c. 1 Roll. Abr. 645. pl. 14, 16. Also the wool of lambs shorn at Midsummer, though tithe was paid for the lambs 148at Mark-tide, is titheable: 1 Roll. Abr. 646, 647. 2 Inst. 652. Bunb. 90.
Wax is a small tithe. 2 Inst. 649.
Yearlings. Tithes shall be paid for the agistment of yearlings, being a new increase. 2 Gwill. 629.
Young of animals are a small tithe, and no tithe is due for their pasture, where reared to be used for husbandry or the pail. Cro. Eliz. 476. But if such young beasts are sold before they come to such perfection as to be fit for husbandry, or to give milk, tithe is payable. Hetl. 86.149150
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