1633.

Andrews
V.

Lane. *

The court appointed the case to be argued the next week. It was therefore afterwards argued by Noy, the king's attorney general, * that no prohibition should be granted. The suggestion, he said, consisted of two parts, 1. that by the law of the land no tithes are [374] due of the second cutting, because no tithes are to be paid for the same land in one year: 2d. it suggests a particular custom, that in respect of the great costs and charges which the farmer sustains in the buying of the seed, and ploughing the land for it, and in respect that when it is ripe, and, that then maturis temporibus anni he gathers it, and buys baskets to put it in, and purges and cleanses it from the dirt, and that he does all this at his own cost, therefore that by reason of the premises and by the law of the land he ought to be discharged. Now this is merely a prescription in non decimando, and no such custom is allowed by the law of the land. But the contrary is frequent about London, where the same land is often twice sown in a year, for instance, at one time with peas, and at another with carrots, &c. and yet tithes are paid for both. They might as well prescribe, that if a man gather part of his apples at one time, and part at another, that he should be discharged of tithes of the second gathering. So, if the osiers which grow here on the banks of the Thames are cut down, tithes are paid as soon as they are cut. For if there is a double increase, why should there not be double tithes? And as to the case of aftermath which has been objected, clearly, aftermath is not discharged of tithes by the law of the land; but a difference has sometimes been taken, that upon a collateral prescription to give to the parson a reciprocal recompence, as to make the first math into perfect hay, when of right they need only make it into grass cocks, this will be a good prescription to be discharged of the tithes of the aftermath; but without such a prescription or recompence, it is not discharged. But here that which is shewn, that the farmer puts the woad into baskets, is no more than he ought to do of common right, and than is necessary for the severance of it from the nine parts; for he could not suffer it to lie upon the land to be severed. But, if he had prescribed, that from time whereof, &c. they have used, in consideration that they dried the first cutting, and ground it in the mill, and paid it in the ball, to be discharged of the tithes of the second cutting; that would be perhaps a good prescription: for he would do more than of common right he need do. In the 41 of El. in lord Roper's case, in the isle of Thanet, where tithes were paid of apples, and afterwards in the same year the apple trees were shredded and cut, and sold, it was adjudged, that new tithes were to be paid for the trees. In the case of aftermath, the second cutting is worth little or nothing; but in the case of woad, the second cutting is worth more [475] than the first; and inasmuch as the second cutting is but an ex

1633.

Andrews

V.

Lane.

crescence of a new thing out of the same root, I conceive that new tithes are due for it.

Richardson C. J. Jones and Berkeley seemed against the prohibition, and Jones said, that woad being within time of memory first used in this realm, he did not see how they could prescribe in this manner respecting it, so that he gave Calthorpe a further day.

It was afterwards argued by Beare of the Middle Temple in support of the prohibition. As to the case of lord Roper, he said, cited by Mr. Attorney, I answer that the apple-trees there were dead Supra 473. trees. He then cited Baxter and Hope's case. As to the case of corn and hay, and afterwards of carrots upon the same land, as here about London, I answer, that there are several crops; but here it is but part of one and the same crop. As to the osiers upon the river Thames, I say that the reason of that is in respect of the covin. Then in the case at bar, no tithes should be paid of the second cutting for two reasons: 1st. because you shall not have tithes twice in one year of the same thing; and upon that ground the case of lattermath has been often determined: 2d. because here is more done than the parishioner ought to do of common right, and therefore it Supra 432. is a good modus decimandi. In Ellis's case, in 16 Ja. in consideration of putting the hay of the first math into windrows, and tedding and shaking it, the farmer prescribed to be discharged of the tithes of the second math; and held good; and there it was agreed, that no tithes shall be paid of stubble after tithes have been paid of the crop. So, it was resolved in this court, that where corn is severed, and tithes are paid for it, and afterwards grass grows, and beasts feed upon the same land, that no tithes shall be paid either for this grass, or the pasturage. In Tr. 7 Car. C. B. Rot. 1449. a custom to pay the tenth pound of wool was holden a good modus decimandi, because the owner is not bound of common right, to weigh it. [Jones J. this last case was left doubtful.] In Gibson and Trot's case, 15 Ja. B. R. one prescribed that in consideration that he bound up his corn in shocks, he hath always used to be discharged of the odd shocks, if there were any; and held a good prescription. - [Richardson C. J. doubted of this.] The cases cited are still stronger than this for here this woad is part of the same crop. And as to the objection that woad has not been in England from time whereof, &c. and therefore there can be no prescription in a modus decimandi for it; I answer, that woad has been common here for 50 or 60 [ 476] years, and then I say if they have used to pay the tithes of it in this manner but ten years, that is a good prescription for the church in the spiritual court upon the modus decimandi, and therefore if the farmers shall not avail themselves of the same prescription, they will be twice charged, once with tithes in kind, and again according to the custom. - Calthorpe said that they could prove that

woad had been used here for 100 years or more. He added, that the second cutting of woad is but quoddam derelictum super terram, as the rakings, &c. and that it is a thing of no, or, at least, very little, value.

འ

1633.

Andrews

v.

Lane.

473.

Palmer argued on the other side. There are in our law some things which are not tithable, as quarries, coals, &c. But, where the things themselves are res decimabiles, there our law does not allow of any prescription in non decimando. As to the first part of the suggestion, that no tithes shall be paid of one thing twice in a year, I utterly deny it altogether, and I vouch Plowden's Comm. Soby and Molins's case, where tithes were held payable for the lop- Supra 134. pings of hornbeam-pollengers, and also for the trees themselves, if they were cut down the same year. So Dr. and Student, cap. ult. and 43 El. between Aubrey and Johnson, where a difference agreed Supra 223. touching the aftermath, namely, that where the prescription is to make the first math into perfect hay, there it is a good modus decimandi for the second math, because there, there is a reciprocal benefit to the parson: it is otherwise, where it is to make it into grass cocks, for this is the parson's due of common right. Tr. 3 Car. B. R. one libelled in the spiritual court for the wool of rotten sheep, and a prohibition was prayed, upon a suggestion that he had paid tithes for the wool at sheering time, and therefore ought not to pay them again the same year; but it was determined to the contrary; and it was also agreed, that in that case if he had sold the sheep after sheering time, he should pay tithes for their wool pro ratá before the sale. In Lyndw. 141. b. 142. ver. " renoventur," he says, "Si eadem terra bis vel ter seminata fuerit, vel sæpius fructum pro"duxerit, dandæ toties sunt decima." So, of pigeons, and other creatures which breed often in a year. As to Baxter and Hope's Vide supra case, that tithes shall not be paid of, &c. it is true, the court there did not grant a consultation because the rewine grass is a thing of no value; 2dly. it is by manuring the land to make it more fertile, being converted into dung: and 3dly. for the maintenance of their sheep.

473.

As to the second part of the suggestion, that here should be a modus decimandi, I say that here is no recompence or consideration to the parson, and I refer to Hall and Fettiplace's case; there, there [477] was a prescription to pay tithe cheeses between such a day and such Supra 222. a day to be discharged of all other tithes of milk in that same year; and adjudged a good prescription, because of common right the parishioner is not bound to make the milk into cheese. But it was resolved, that if the prescription had been, that in consideration he paid the tenth quart of milk between such a day and such a day, that would not have been good, for it is no more than he must have done of common right. The second cutting is of as great value as Qu.

1633,

the first cutting; and woad being but a new thing, there can be no Andrews prescription respecting it.

V.

Lane.

Maynard acquainted the court, that in the case of the tenth pound of wool, cited by Mr. Beare, he was of counsel, and that they had a consultation, contrary to what Beare had said; to which Jones J. agreed.

Richardson C. J.-I consider this a very great and doubtful case ; for I cannot conceive how payment of a part should be a satisfaction for the whole, and in effect this is so; and the second cutting being as good as the first, it would be a plain non decimando. As to the cases that have been put, to the contrary, I will agree to some of them. 1st. As to the case of the stubble, I agree that no tithes shall be paid of it, 1st. because tithes were paid of the corn, which is the principal, and the stubble is of no value; 2d. because in the case of stubble, there is no second renewing. As to the case of fruit, as apples, &c. I conceive that two tithes are payable. As to the aftermarth, I agree in the difference that has been taken by Palmer, and I will mention a case in the C. P. which arose in Cambridgeshire: - One prescribed, that where the grass grew in a wet place, in consideration of his carrying it out of such watery ground, and to another drier place to make it into hay, he was to be discharged from the tithes of the aftermath; and held to be a good modus decimandi. As to the case of the grass which grew after the corn was severed, it might be perhaps, that there were no tithes of it, because of such small value. But in the case at bar, there is a new increase, and the law is, that de omnibus renovantibus et crescentibus, &c. tithes shall be paid. And as to the rakings, I hold that where the rakings are of great value, or if they are left on the land covinously, that tithes shall be paid of them; but if they are left there in a small quantity and involuntarily, it is otherwise; and therefore the words of the suggestion in such case are minus voluntarie. (a) So it was now lately resolved in this court for the locks of [ 478] wool of sheep at sheering time upon this same distinction, where they are left in great quantity, or by covin, and where not. (b) This case shall be argued next term; and if the court should then have any doubt, it shall be afterwards argued by the counsel on both sides, and the court will deliver their opinion seriatim.

Jones J. said, that he intended to have spoken to this, but that he subscribed to the rule of the chief justice.

Croke and Berkley accordingly; and they added, that notwithstanding what had been said, they were strongly of opinion, that no

(a) Anon. 1 Freem. 334. infra, 562. Grent ton v. Fleetwood, Cro. Eliz. 475. supra, 189. v. Hunt, ibid. Nicholl's case cited in Johnson Degge's P.C. p. 2. c. 3. v. Aubrey, Cro. Eliz. 663. supra, 473. Green v. Hun, Cro. Eliz. 702. supra, 215, Shering

(b) Anon., Mo. 911.; 2 Inst. 652.; God. Rep. case, 462.; 1 Rolle's Abr. 646. Degge P.C. part ii. c. 6. Foss v. Parker, Bulstr. 242.

prohibition ought to be granted, and so they had been always, else they would not have consented, that the party should be delayed of his prohibition so long as Michaelmas term.

Jones J.-If apples are gathered, part at one time, and part at another, there is no doubt but upon these several gatherings, there shall be several tithes paid.

Richardson C. J.-Here at Fulham they have peas which are early ripe, and sold at London, for which they pay tithes, and yet at harvest, when they cut down the remainder, new tithes are paid.

Croke J. agreed the difference which had been taken touching the aftermath by Palmer: and he said, that in this case the baskets are things of necessity for the use of the owner of the nine parts, and the second cutting is nearly as good as the first by the confession of the party himself. And as to the rewine, and rakings, and locks of wool, he took the distinction made by the chief justice, for de minimis non curat lex; alitèr, if in great quantities or by covin. And Jones J. was of opinion that there should be no prohibition; for the providing of the baskets was for their own use; that they might as well prescribe to be discharged of the tithes of corn, because they were at the charge of providing scythes to cut it down. Which Berkley agreed to, and said, that of pigeons and hens, and such creatures as bring forth twice in a year, double tithes are paid.

Richardson C. J. hesitated about agreeing to the case of osiers put by Mr. Attorney.

Jones J.-If you could make this the custom of an entire county, consuetudo patriæ, you might then prescribe in a non decimando, as in the case of the Wealds of Sussex; quod fuit concessum. Adjourned to Michaelmas term, and no prohibition interim. (a)

M. 11 Car. A. D. 1635. B. R.

Sydown v. Holmes. [Sir W. Jon. (b) 368.]

1633.

Andrews

V.

Lane.

[ 479 ]

In prohibi

tion to a

suit for

tithes of

abbey lands,

THE prior of Bredsall (c) was seised of lands in the parish of Bredsall before time of memory, and all the priors held them before time of memory exonerated from the payment of tithes: the lands came by dissolution to king Henry the eighth by the statute of if it appear 27 H. 8. the abbey being under the value of 200l. per annum; the that the king made a grant of the lands, and by mesne conveyances they exempted came to one Bentley, who leased them for years to Sydown. Holmes, from the the parson of Bredsall, sued Sydown in court christian for the tithes; them at the

(a) See Norton v. Clarke, supra, 428. (b) This case is likewise reported by Croke, [Cro. Car. 422.] but Sir Wm. Jones's relation is more natural, more simple, and more circumstantial.

VOL. I.

abbot was

payment of

(c) The priory of Brisoll, Breydesale, or Bredsall, in the parish of Bredsall or Breadsall, in the county of Derby. In Sir Wm. Jones's Report it is called Breadstall, and in Croke's, Bristol; easy mistakes from the similarity of sound.

Gg