may, in the case of existing trustees, be supplied in the manner provided by the Act of parliament, deed, or instrument regulating their proceedings; and in the case of elected trustees the vacancies may be supplied by the owners at any meeting convened and held in manner hereinbefore provided with respect to the convening and holding of a meeting of owners for the purpose of consenting to the sale of an advowson; and a certificate of two such justices as aforesaid, and which such justices, on being satisfied of the truth of the facts, are hereby authorized and required to grant, that such vacancies have been supplied, and containing the names, residences, and descriptions of the new trustees, shall be conclusive evidence of the facts, and thereupon such new trustees shall have the same property, rights, and powers in and with respect to the advowson as the trustees in whose place they. were appointed.

XIII. Trustees acting by virtue of this Act shall not be answerable or accountable for the acts, neglects, or defaults of any co-trustee, or for any agent or banker appointed by the trustees, or for any loss, except such as shall happen through their own wilful act, negligence, or default.

XIV. In case of the death, cession, or resignation of any incumbent of a benefice after the owners shall have directed the advowson of such benefice to be sold, but before the sale shall have been effected, then the persons in whom the right of presentation and nomination would but for this Act have been vested shall (under and subject to the conditions under which such right would but for this Act have been exercised) present and nominate a person to such benefice as if this Act had not been passed.

XV. The owners of an advowson, at a meeting convened and held in manner hereinbefore provided with respect to the convening and holding of a meeting of owners for the purpose of consenting to the sale of an advowson, may consent to the borrowing of money from "the governors of the bounty of Queen Anne for the augmentation of the maintenance of the poor clergy," or from any other society or persons, for the purposes authorized by the Acts of the seventeenth year of King George the Third, chapter fifty-three, the twenty-first year of King George the Third, chapter sixty-six, the seventh year of King George the Fourth, chapter sixty-six, and the first and second years of Queen Victoria, chapter twentythree, as fully and effectually as any patron absolutely entitled to an advowson not within the provisions of this Act may lawfully do.

XVI. The certificate of two such justices as aforesaid, which they are hereby authorized and required to grant on being satisfied of the truth of the fact, that such consent has been duly given, shall be conclusive evidence of the fact, and such

certificate shall, for all purposes whatever, be deemed the consent of the patron within the meaning of those Acts.

XVII. This act shall extend only to England and Wales.

Tithes.] Tithes are defined to be the tenth part of the increase, arising and renewing from the profits of lands, the stock upon lands, and the personal industry of the inhabitants. 2 Bl. 24; 3 Cr. t. 22, s. 2. Those arising immediately from the profits of lands, are called Predial tithes; those from the stock upon lands, mixed tithes; and those from the personal industry of the inhabitants, personal tithes. 3 Cr. t. 22, s. 6. Tithes are also divided into great and small tithes : the great tithes comprising those of corn, hay and wood, which are predial tithes; the small tithes comprising those of the less valuable matters, such as hops, potatoes, madder, wood (predial tithes), and all mixed and personal tithes (3 Cr. t. 22, s. 7),—the distinction, in the case of predial tithes, arising from the nature of the titheable matter, and not from the quantity of it cultivated in the particular parish. Id. ss. 8, 9.

Predial tithes are due of common right. Id. s. 10. They comprise all kinds of corn; and also beans, peas, &c. when cultivated, whether set, drilled, sown, or planted in rows; but if sown in a garden in like manner they are accounted small tithe. 3 Cr. t. 22, ss. 15-17. Hay is a predial tithe, whether made for sale, or consumed upon the farm (Id. s. 18); so are clover, saintfoin, rye grass, tares, vetches, &c. (Id. s. 20); even a second crop of clover, or the grass of aftermath if cured and made into hay, are titheable (Id. ss. 19, 20); but if grass or clover be cut down, and whilst it is in swarth the farmer give it to his plough cattle (Id. s. 18); or if tares or vetches be cut green and given as food to milch cows or horses employed in husbandry (Id. s. 20), they are not titheable. Underwood (sylva cædua) comprising birch, hazel, willow, sallow, alder, maple, whitethorn, and all other trees not accounted timber by the custom of the country, together with fruit trees, unless employed in repairing the carts and ploughs used in husbandry,—are titheable, as a predial tithe; great wood (comprising oak, ash, elm, beech, and every other tree which is deemed timber by the custom of the country) of the age of twenty years, or of greater age, is not titheable. 45 Ed. 3, c. 3. 3 Cr. t. 22, ss. 21-30. Hemp and flax are also a predial tithe, but the tithe payment is limited to 5s. an acre. 11 & 12 W. 3, c. 16, made perpetual by 1 G. 1, st. 2, c. 26, s. 2. Madder is also titheable. 3 Cr. t. 22, s. 3. Hops are a predial tithe, but are deemed a small tithe (Id. 8. 32); so are potatoes (Id. s. 8). Turnips are titheable, when severed, even although sown after corn (Id. s. 33); so, an agistment tithe was holden to be due for turnips sown after corn, and not severed, but eaten by unprofitable cattle (Id.

s. 41); and now, by stat. 5 & 6 W. 4, c. 75, reciting that "it is frequently convenient and necessary in the agistment of turnips by sheep or cattle, to sever the turnips from the ground, in order that they may be more easily and completely consumed, and thereby to prevent waste, and it is not reasonable that such severance should vary or affect the payment of tithe,"—it is enacted that "in all cases where turnips shall be severed in the manner and for the purpose aforesaid, and shall be eaten on the ground by sheep or cattle, and not otherwise removed, the same shall be subject to the payment of tithe in the same manner and to the same extent as if they had been eaten by such sheep or cattle without having been so severed as aforesaid, and no further or otherwise." Garden plants and herbs, such as cabbage, parsley, &c., and the fruits of trees, are also a predial tithe, but a small tithe (Id. s. 34); hot-house plants not (Id. s. 35). And lastly, agistment tithe, which is a predial tithe arising from the agistment or pasturage of cattle, is payable of common right by the occupiers of the land, not by the owners of the cattle, and has been decided to be a small tithe (3 Cr. t. 22, ss. 36, 40); it is payable, however, only for dry or barren cattle, which yield no profit to the parson (Id. s. 37), and not for cattle kept for the plough or pail in the parish, for the parson has tithe of them in another way (Id.), nor for horses kept for husbandry, or saddle horses, coach horses, or other horses used merely for pleasure (Id. s. 38); nor in respect of meadow land which has paid tithe hay (Id. s. 39); but we have seen (supra) that it is payable in respect of turnips sown after corn, and not severed, but eaten by unprofitable cattle.

Mixed tithes are those which arise, not immediately from the profit of the land, but from the produce and increase of animals nourished by it. They consist of the tenth of the young cattle,-calves, lambs, pigs, &c.,-bred in the parish, and the time of payment is when the animals are weaned, and can live without their dam (3 Cr. t. 22, s. 42); also, the tenth of the wool of sheep and lambs, at the time of clipping (Id. 8. 43); also the tenth of the milk, and of the cheese where the tithe of milk is not paid in kind (Id. s. 44). These, however, are payable, not of common right, but by custom merely; and where they have not been usually paid, they are not demandable (Id. s. 10).

As to personal tithes,-it is enacted by stat. 2 & 3 Ed. 6, c. 13, s. 7, that "every person exercising merchandises, bargaining and selling, clothing, handicraft or other art or faculty, being 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 such as are common day labourers), shall yearly at or before the feast of Easter pay for his personal tithes, the tenth part of

his clear gains,-his charges and expenses, according to his estate, condition or degree, to be therein abated, allowed and deducted." These personal tithes, however, are not payable of common right, but by custom merely; and where they have not been usually paid, they are not demandable; they are scarcely any where paid at present, except for mills, and for fish caught in the sea. Id. s. 46, and see 2 & 3 Ed. 6, c. 13, ss. 8, 9, 11.

There are several things, however, which are not titheable, or titheable sub modo only. Quarries of stone or slate, mines of tin, lead, coal, lime, chalk, marl or the like, are not titheable, unless by custom, for they are of the substance of the earth, and not an annual produce. 3 Cr. c. 22, s. 47. Houses are not titheable, unless by custom, or (as in the city of London) by Act of Parliament. Id. s. 48; and see 2 & 3 Ed. 6, c. 13, s. 12. Forest lands in the hands of the Queen or her lessee, are not titheable; but if disafforested, the land is titheable. Id. s. 49. By stat. 2 & 3 Ed. 6, c. 13, s. 5, all barren heath and waste ground, which is improved and converted into arable or meadow, shall not pay tithes for seven years after such improvement. Id. s. 50; see Warwick v. Collins, 5 M. & S. 166. And lastly, for animals feræ naturæ, such as deer, rabbits, &c., tithe is not due at common law; but by the custom of many places, some animals of this kind are titheable. 3 Cr. t. 22, s. 51.

To whom payable.] The tithes of common right belong to the rector of the parish, who is either the actual incumbent, or the appropriator of the benefice. 2 Bl. 26-28. Where there is an actual incumbent, he is entitled to the whole of the tithes, great and small. Where there is an appropriator, a vicar is appointed to perform the spiritual duties of the parish, and to him are assigned a certain portion of the tithes (usually the small tithes only) as is specified in the endowment of the vicarage, the appropriator being entitled to the rest, namely the great tithes ;-and which tithes are hence distinguished by the names of Rectorial and Vicarial tithes. Benefices might, and may still, be appropriated to some spiritual corporation, sole or aggregate (being the patron of the living),—by the Queen's licence, and the consent of the bishop of the diocese ; and in this manner the religious houses formerly became appropriators of a great number of livings. These, upon the dissolution of the monasteries in the reign of Henry the Eighth, came into the hands of the king, and by him were granted to lay persons; which is the origin of the present lay appropriations. 1 Bl. 384-388; 3 Cr. t. 22, ss. 52-58, 62-67.

There remain to be noticed certain owners of tithes called portionists. Formerly every person in a diocese might pay

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his tithes to what parson he pleased within it, or he might pay it to the bishop to be distributed by him amongst his clergy. The custom thus originated has not been wholly eradicated, but in some instances (though very rare), there are portions of tithes in one parish which belong to the parson of another parish, and which latter parson is thence called a portionist. 3 Cr. t. 22, ss. 59, 92-98. 2 Bl. 26, 27.

In those places which are not within a parish, as in forests and the like, the Queen is entitled to the tithes. 3 Cr. t. 22, s. 60. And the lord of a manor may be entitled to the tithes of the manor, by prescription. 3 Cr. t. 22, s. 61.

Exemptions.] Lands and their occupiers may be exempted, wholly or in part, from the payment of tithes, either by composition real, or by prescription de modo decimando,—or by prescription de non decimando,-or by Act of Parliament.

1. By composition real. A composition real is an agreement between the owner of lands, and the parson or vicar, with the consent of the ordinary and the patron, that such lands shall thereafter be discharged from the payment of tithes, in consideration of certain land or other real recompense given by the owner to the parson in lieu and in satisfaction thereof. 2 Bl. 28; 3 Cr. t. 22, s. 71; and see 2 & 3 Ed. 6, c. 13, s. 4. This was a good discharge of the lands from tithes for ever, according to the terms of the agreement; and such compositions continued to be made until the 13th year of the reign of Queen Elizabeth, when parsons and vicars were prevented from making any conveyances of the estates of their churches, other than for three lives or twenty one years. 13 Eliz. c. 10. Notwithstanding this statute, however, there have been several decrees of courts of equity confirming such compositions made since the statute, with the consent of the ordinary and patron, but they were not deemed binding on succeeding incumbents (3 Cr. t. 22, s. 72), until by a late statute, 2 & 3 W. 4, c. 100, s. 2, it was enacted that " every composition for tithes, which hath been made or confirmed by the decree of any court of equity in England, in a suit to which the ordinary, patron and incumbent were parties, and which hath not since been set aside, abandoned or departed from, shall be, and the same is hereby confirmed and made valid in law." And by the same statute (sect. 1), all claims to any exemption or discharge of tithes by composition real or otherwise (where the render of tithes in kind should thereafter be demanded on the part of the king, or the Duke of Cornwall, or any lay person, not being a corporation sole, or any body corporate of many whether temporal or spiritual), shall be sustained and be deemed good and valid in law, upon evidence showing the enjoyment of the land, without payment or render of tithes, money, or other matter in