statute of Edward VI.' Fish were not in their nature tithable any more than wild creatures, which were deemed quasi in the realty unless they yielded profit.2 But by custom those, who derived profit by fishing, paid something in the nature of personal tithe in respect of the fish caught. Barren heath and waste ground was also not tithable as a general rule, but a statute of Edward VI. made it so within seven years after it was turned into arable or meadow, so as to be profitable in corn and hay.+ Tithe of wood was a troublesome matter. The clergy demanded tithe of both underwood and young full grown wood, and at last the legislature declared, that there should be no tithe of wood after it was twenty years old. Then fine distinctions were made between certain kinds of wood, some fit for building, and some not; and, in particular, bark of oak was held not tithable, but acorns were tithable. Coke said "he could cite a world of examples of prohibitions about all these subjects in cases whereof never any learned man made any doubt." & Bees did not escape tithe, their contributions being expressly mentioned in the laws of Edward the Confessor. In one case tithe was demanded, not only of honey and wax made by the bees, but of the bees themselves; and the court held that as the keeper paid honey and wax, and had to maintain the hives in winter, he ought to be let off for the bees. And for a like reason, no tithe was paid of the chickens, because the keeper paid tithe of the eggs. Apples were tithable only when plucked, but as they were often stolen, this was held a defence to the tenant, especially if the person who took them was unknown. Yet, if the tenant suffered the apples to hang too long, and so they were lost by his negligence, he must pay his tithe or the value, and he must also give tithe of the fallen apples.9 And there was tithe due even of the wild cherries that grew on the hedges and waste places.10 Also hothouse 1 2 Inst. 651; 2 & 2 Eagle & Y. 289. 8 3 Ed. VI. c. 13, § 12; Kinaston v Piercy, 2 Nicholas v Elliott, 1 E. & Y. 698. 3 Holland v Heale, 1 E. & Y. 156; Williams v Baron, 2 E. & Y. 217. 4 2 & 3 Ed. VI. c. 13, § 5; 2 Inst. 655; Stockwell & Terry, 1 Ves. 115. 5 2 Inst. 642. 6 18 Ed. III. c. 7; 45 Ed. III. c. 3. 7 Cro. Ch. 403. 1 E. & Y. 366, 618, C55. 8 1 Roll. Ab. 642. 10 1 E. & Y. 803. 9 Hetl. 100, plants, and fruits, other than exotics, were tithable; for though it was contended they were not the produce of the earth, the court thought they were as much so as cucumbers and hops.1 Mode of recovery of tithes.-Tithes were, according to Coke, recoverable at first in the county court; and afterwards the ecelesiastical courts also enforced payment by excommunication. The mode of recovering tithes in the ecclesiastical courts before 1836 was subject to many niceties now of no importance; the main point was, whether the payment had been superseded by a modus or composition, and what was satisfactory evidence of such modus. In 1540, and again in 1548, the legislature gave better remedies for enforcing payment of tithes, it being held before that time, that lay proprietors of tithes could not sue in the spiritual courts. The statute of Edward VI. expressly declared, that suits for subtraction of tithes should be in the King's Ecclesiastical Courts only; and the punishment was excommunication; and if the party still refused to pay after forty days, that court was to signify the same to the king in his court of Chancery, that process of imprisonment might be issued.3 Mode of setting out and delivering tithe.-One great difficulty in the practical working of the law of tithe was as to the mode of setting out and delivering the tenth part of the produce. The rule was, that the parson was bound to go and fetch away his tithe when it was set out, within a reasonable time, for otherwise he obstructed the tenant in the use of his land, and the tenant could sue him for the injury thereby caused; for it was said, "the fruit, if not removed, may rot, and cause a smell." And yet, if 2 2 Inst. 400. 1 Adams v Waller, 3 E. & Y. 1292, 1385. 3 32 Hen. VIII. c. 7; 2 & 3 Ed. VI. c. 13, § 13. 4 Wiseman v Denham, 1 E. & Y. 328. This rule was laid down in the statute of Ed. VI. thus: "Whensoever praedial tithes shall be due, and at the tithing time of the same, it shall be lawful for every party to whom any of the said tithes ought to be paid, or his deputy, or servant, to view and see the said tithes to be justly and truly set forth and severed from the nine parts, and the same quietly to take and carry away; and if any person carry away his corn or hay, or his other praedial tithes, before the tithe thereof be set forth, or willingly withdraw his tithe of the same, and of such other things whereof praedial tithes ought to be paid, or do stop, or let the parson did not carry off his corn tithes, the tenant was not entitled to turn in his cattle to eat them up; but he must only sue the parson for the damage caused by his delay. So as to corn, the tenant was bound to make the corn when cut into sheaves ready for the parson. And the grass must be tedded for a like purpose.3 The owner of a single calf was deemed bound to pay the tenth part of its value when taken from the cow in lieu of tithes. In one case the owner offered the parson a shoulder after killing the calf, but he was sued in the court, and the court held, after debate, as above stated. And the right to one of ten calves was held to accrue the moment this tenth calf was dropped, though it need not be taken away till it was weaned and capable of living without its dam. the parson, vicar, proprietor, owner, or other their deputies, farmers to view, take, and carry away, &c., he shall pay double tithe.”— 2 & 3 Ed. VI. c. 13, § 2. 1 1 E. & Y. 618. 2 1 Rol. Ab. 644; 1 E. & Y. 448. 3 1 E. & Y. 625; 2 E. & Y. 479. When grass was cut, the tenant gave notice to the rector to take his tithe, but in one case the ditches round the field being impassable, it was held enough for the rector to wait till the grass was made into hay; and if the tenant would not make it into hay, the parson must do it himself, and within a reasonable time, so as not to hinder the tenant in the use of the land.-South v Jones, 1 Str. 245. And when corn was cut the rector got notice, and though the tenant was bound to leave onetenth in cocks for the rector, the latter was bound to carry them off in reasonable time.-Noy, 31. Some tithes were held to be impracticable; and grass and turnips caused great vexation. Though it was easy to separate each tenth turnip, and make a heap, yet the sheep and lambs that happened to be pasturing on the other turnips could not be persuaded to leave this heap alone, so that the tithe-owner either suffered, and probably commenced an expensive suit against the farmer, or the farmer had to be deprived of the pasturage of the turnips for the fear of such litigation. The legislature was once called on to pass a special act to set this difficulty right.-30 Parl. Deb. (3d ser.) 802. A.D. 1693, 1 E. & Y. 582. 5 Welch Uphill, 1 B. & B. 84. "A small farmer could not take his cow and calf to market for sale because the titheman told him the calf must first grow till it was independent of the mother. The titheman took the tenth day's milk, so that on that day the calves had to go without any. If one tenth row of potatoes was tithe, yet the others could not be taken up till they were measured. If a farmer had ten hens he had to keep an account of the eggs laid, the number of chickens hatched, the number carried off by the fox and other casualties. A man could not take a head of celery out of his Difficulties as to the tithe of milk.-Nothing so well illustrated the vagueness and vexatiousness of the law of tithes as that which applied to the familiar article of milk, both in the mode of settling the amount and the mode of delivery. In one great case in 1777, the parson insisted, that the whole milk, morning and evening, of the tenth day, was his tithe, while the cowkeeper contended it was only the evening meal on the fifth day, for that was the proper tenth meal. The parson, however, said the evening meal was always less than the morning meal, and this would be defrauding him. And he satisfied the court that the evening's milk was one third less in quantity than the morning's milking. The court heard long arguments for several days, besides witnesses, and concluded that the only fair way was to give the parson the tenth morning and tenth evening meal, otherwise injustice would be done to him. The parishioner appealed against this, and contended that instead of tithe this was in effect making him give the nineteenth and twentieth meals; for each milking was quite distinct. But the House of Lords affirmed the decision. Yet this was not the only difficulty arising out of the tithe of milk. The quarrel also arose, whether the milkman was bound to deliver the tithe milk, and if so, whether it was to be delivered at the church porch or the vicarage house. The court, in 1678, was divided on this point, and ordered arguments both by common lawyers and civilians. After full debate and time taken to consider, the judges, by three to one, held, that the cowfeeder was bound to deliver the tenth day's milk at the church porch. The two arguments relied upon were a garden or put a cabbage into his pot without first sending notice to the titheman, or subjecting himself to an exchequer process."Parl. Deb. (3) 29. In 1832 tithes had become so obnoxious in Ireland, that when some cattle were seized for tithe under the pr tection of artillery, cavalry, and infantry, and sold by auction, no person would bid one shilling for a bullock worth ten guineas.-13 Parl. Deb. (3) 234. 1 Bosworth & Limbrick, 7 Bro. P. C. 57. 2 Ibid. 3 In this case the parishioner, who kept a dairy, complained, that by insisting on the whole milk of one day being given up to the parson, the calves must on that day go without their feeding, and there would be no whey for the pigs; and that a calf ten days ok would drink more milk than one cow could give. passage in Scripture, and the maxim, that it was more decent for the parishioner to deliver the milk than for the vicar to send for it. Twenty years later the court assumed, that it ought to be delivered at the parsonage house. Yet still later, namely in 1720, the Court of Exchequer held, that the parson was bound to send and fetch the milk in his own pails from the milking-place; and if he did not do so before next milking time it might be thrown on the ground, for the pails would then be wanted. Lastly, in 1767, the court would not allow the milk to be thrown away, if there was the least evidence of a custom to deliver at the porch door, and ordered the milkman who did so to pay the value of the milk destroyed.5 Difficulties as to personal tithes.-It has been seen that the laws of Edward the Confessor included personal tithe as well as the tithe of the produce of land. And by the statute of Edward VI. every person exercising merchandises, bargaining and selling clothing, handicraft, or other art (other than common day labourers) was to pay on Easter the tenth part of his clear gain. The ordinary was to summon a defaulter, and examine him by all lawful and reasonable means except his own corporal oath, concerning the true payment of this proportion of gain. This incometax, as might be supposed, was difficult in practice to be recovered. And it is said that in the time of James I. it was treated as too indefinite to act upon. And in modern times it has long ceased to be collected.8 Modus substituted for tithe.-Owing to the numerous difficulties of all kinds attending the setting out, the delivery and recovery, of tithes in many parishes, special agreements had been made substituting some fixed pay 1 1 Mal. iii. 10. 4 Bunb. 73, 160. c. 13. 21 Eagle & Y. 516. 7 Wood, b. ii. c. 22. 31 L. Raym. 621. 8 In a case in 1613 a parson sued a Bristol innkeeper, alleging that he had made great gain in selling beer, having bought a stock for 5001. and sold it for 1,000l., and he claimed tithe of the large profit. But the court said he might as well claim tithe of all the kitchenstuff, and granted a prohibition against the suit.-2 Bulstr. 141. In 1836 the Attorney General said that he had no doubt, that personal tithes could be enforced; but they ought to be abolished, and the clergy to their credit had not enforced them for many years.—35 Parl. Deb. (3) 95. |