Sidley. of the from Croke's the Exche In an action of trespass for the taking of three loads of oats, the defendant in his bar saith, that the place where, &c. is parcel This state of a copyhold in T. and makes title to it, and justifies for damage- pleadings is feasant. The plaintiff replies, that long before, and at the said time extracted when, &c. he was parson of T. and that the place where, &c. is report of within his rectory and the tithable places thereof; and that the the case in defendant, being a copyholder there, let it to one Hawkes, to hold it quer Chamfrom year to year, as long as both parties should please, and that ber. Hawkes entered and ploughed and sowed and took the crop, and 64. set out the said oats for his tithes; and that the defendant of his own wrong took the said oats at the said time when, &c. The defendant rejoins, and protesting that the oats were not set forth for tithes, traverses the demise to Hawkes. To this traverse the plaintiff demurred. Cro. Car. S. C. Whitlock justice.-The traverse is not good, and, upon consider- 1 Jon. 89. ation of the whole matter, judgement ought to be given for the plaintiff. The defendant hath admitted, that the plaintiff was parson; and hath also admitted, that the oats were set out for tithes, and that he took them. The case is no other than this; that corn is [425] set out for tithes, and the owner of the land takes it as damage-feasant, without making it to appear in pleading (as he ought to have done) that the parson had suffered the corn to remain over-long upon the land to his damage. The parson may have an action of trespass for the taking away, if once they were set out for tithes, and after taken away. The defendant here disclaims any title to, or property in, the corn; he claims nothing in it, but he admits the plaintiff to have the sole property. Where he disclaims for damage-feasant, he ought specially to shew, that the same remained there so long, that by it there was a damage to him; and lawful it is in such a case to distrain corn in the shocks; but not so for rent; and so the See the difference is taken 10 H. 7. 21 H. 7. and 22 E. 4. 50. As to the traverse here taken, it is not a material traverse, and so for this cause not good, the same being absque hoc that Sidley demised unto Hawkes for one year; which is no way at all material. He needs not to take notice of his title in an action on the statute of 2 & 3 E. 6. for not setting out tithes: he is not to lay and set forth a title in the defendant: he needs only to state, that he was possessed without shewing any title, and that is sufficient. Here the defendant by pra, 281. supra, 224. Rep. 225. latter sta tutes contr. Cornwallis v. Spurling, Cro. Jac. 57. pra, 250. Fosset v. Franklin, Sir Tho. Raym. Hanson v. Fielding, Gilb. Equ. 225. infra, 1579. Star v. Elliott, 1 Freem. infra, 663. Urrey v. Bowyer, su- 299. 1627. Mountford V. Sidley. his traverse admits the plaintiff to be parson; so that the traverse is not good, and judgement ought to be given for the plaintiff. Jones justice.-It doth not appear here in the declaration, whether the plaintiff hath brought his action, as parson, or otherwise; and therefore the defendant might well plead in bar, for the parson ought to make his title. The parson, where tithes are set out, hath a liberty for a time convenient to come and carry them away, and this conveniency of time is triable by a jury. And this is a licence, which the law gives him, and if he exceeds it, he shall be subject to an action, and then, by the judgement of law, he shall be taken for a trespasser ab initio. Otherwise it shall be of a licence in fait, given by the farmer himself; if he exceeds this, no action of trespass lies for it, but an action on the case; and this difference is taken in The six Carpenters case, 8 Rep. 146. If an action is brought for taking away tithes, the defendant ought to plead specially, either that they were not set out for tithes; or, that being set out, they were suffered to remain there over-long. Here the parson makes his title in his replication. As to the traverse by the defendant of the demise to him who set out the tithes, this is a bad and an impertinent traverse. If one, who has some colour of title, [426] sow the land, and set out the tithes, though he be a disseisor, this is good for the parson: otherwise it is, where one without any colour sets out tithes; this is no setting out in law. Here the traverse being of a particular inducement to the title is not good; and the traverse being bad, judgement ought to be given for the plaintiff. Dodderidge justice.-The traverse is bad both for the matter and the manner of it. As touching a traverse, that thing is to be traversed, which goes to the point of the action; any other traverse is not good, because not material. To the title of the plaintiff here, the demise to Hawkes, be it for one year, or for half a year, is not material; and for this cause the traverse is not good. The defendant might have said, that the plaintiff was not parson; or, that it was not in his parish; or that it was not severed from the nine parts. If any of these were so, the same would have well served his turn, and a material traverse might have been upon any of these. But here he hath traversed a thing merely immaterial. As to the manner of the traverse; the traverse is here also void for the manner of it; for he hath here traversed a conveyance only, and nothing else; and this is not good. He doth here traverse only the conveyance to the title, which enables him to have the tithes, and therefore this traverse is not good. Also, the traverse is not good, because he hath here taken a captious traverse, the same being absque hoc, that he demised to Hawkes for one year. So that, upon the whole matter, the traverse is bad both ways, both for the matter and the manner of it; and therefore judgement ought to be given for the plaintiff. Crew chief justice. - The defendant hath here allowed a good title in the plaintiff to the oats. If it appears by the declaration, that the plaintiff was parson, then by the bar the defendant ought of necessity to shew the cause of his taking for damage-feasant. But here, as this case is, he needs not do it, because the plaintiff does not bring this action, as parson; but in his replication makes his title, as parson. The traverse here is not good. If the corn had continued there over-long, the defendant's remedy had been by action on the case. But, here, no title appears but only for the plaintiff. So the traverse is bad, and judgement ought to be given for the plaintiff. 1627. Mountford 64. V. Sidley. Upon this judgement a writ of error was brought; and the Cro. Car. error assigned was, that the plaintiff alleged, that he was parson tempore quo, &c. and at the time of the trespass supposed, ac diu antea ; but did not say, that at the time of the severance of the corn he [427] was parson; for it shall not be intended without showing it; but rather, that he was parson at the time of the trespass, and not at the time of the severance, and then he made not a sufficient title to the tithes. But all the justices and barons conceived it was well enough; and it shall be intended by all the circumstances, that he was parson at the time of the severance; for it is said, antea et tempore quo fuit parson, et adhuc est, &c. and especially the defendant having admitted that he was parson, and the said tithes due unto him, and making a traverse of the lease, which was an idle traverse, and therefore good cause of demurrer. And the replication is good; for being pleaded that diu antea et tempore quo, &c. he was parson, it is certainly enough intended, he was parson at the time of the severance, as well as at the time of the taking. Whereupon judgement was affirmed, notwithstanding the book, 35 H. 6. 48. which was much insisted upon. H. 2 Car. A. D. 1627. C. B. A LIBEL was in court christian for tithes of hay: the defendant Per Richardson arguendo. No tithes from head due for hay lands in corn fields. 1627. No tithes due of rabbits killed for the use of the owner's family. [428], Tithes are not due of pigeons eaten in the owner's house, nor of acorns eaten by his pigs. See not plough his land, if it were not left. And this is the reason of A libel was in the ecclesiastical court for tithes of rabbits, which the party killed only for his family. And it was agreed, that tithe shall not be paid for rabbits killed to be eaten in the house, any more than for fat cattle fed, and killed for the house, and therefore a prohibition was granted. (b) So in the next term it was agreed, that no tithes are due for conies by the common law, but only by the custom of the place. Tr. 3 Car. A. D. 1627. C. B. Anon. [Littlet. Rep. 40.] A PARSON libelled in the spiritual court for tithes of pigeons and acorns; and the defendant prayed a prohibition, because the pigeons were expended in his own house, and the acorns dropped from the trees, and his pigs eat them. By the court-Acorns are tithable, 11 Rep. 49. But then they ought to be gathered and sold. And a prohibition was granted. (c) Flower v. Vaughan, Hetl. 147. S. P. as to pigeons. 1 Roll. Abr. 642. The tithe of woad is a predial Qu. Whe ther an ac statute of 2 & 3 E. 6. Tr. 3 Car. A.D. 1627. Cam. Seac. A WRIT of error was brought in the exchequer chamber for the reversal of a judgement for Clarke in an action by him against tithe. But Norton upon the statute of 2 & 3 E. 6. The first error that was assigned was, that there was no averment that the tithes in question tion on the had been paid by the space of 40 years according to the words of the statute, which require that "every of the king's subjects shall will lie for from henceforth truly and justly without fraud or guile divide, set out, yield, and pay all manner of their predial tithes in their proper kind as they rise and happen, in such manner and form as hath been of right yielded and paid within 40 years next before the making of this act, or of right or custom ought to have been paid ;" and if they were not paid, or of right ought not to have been paid within 40 years next before the making of the statute, then an action upon the statute will not lie. not setting it out. The second error that was assigned was, that an action of debt upon the statute would not lie for tithes of woad, because woad, (a) 2 Inst. 652. 1 Roll. Abr. 645. Chapman v. Barlow, Bun. 183. infra, 657. Degge's P. C. part ii. ch. 3. (b) See Underwood v. Gibbon, Bun. 3. infra, 1582. Hele v. Bragg, infra, 861. Robinson v. Tunstall, ibid. n. Williamson v. Lord Lonsdale, 5 Pri. 25. infra, vol. ii. Walton v. Tryon, infra. 840. Toller on Tithes, 120. n. Degge's P.C. part ii. ch. 8. (c) Knight v. Halsey, infra, 1554. 1627. Norton V. Clarke. according to Speed, in his Chronicle, is but an herb, and so in the nature of a small tithe, for which an action of debt upon the statute will not lie. For an action of debt will not lie for tithes of onions, radishes, &c. though they grow in a field; for they are small tithes. In M. 18 Ja. in the case of Payne and Nicholson it was adjudged, that an action of debt would not lie for the tithes of wool and lamb. And Sir Thomas Crewe, the king's serjeant, said, that tithes are great or small secundum quid. For in some places those tithes may be said to be great tithes, which in other places are small tithes. Where the tithe of a thing is magnus ecclesiæ proventus, there, it shall [429] be reckoned among the great tithes : but, where it is parvus ecclesiæ proventus, it shall be a small tithe. And therefore in France the tithe of grapes is reputed among the great tithes, because it is maximus ecclesiæ proventus; whereas in England the tithe of grapes is reckoned among the small tithes, because it is parvus ecclesiæ proventus. And in the case at bar, because woad is not a thing frequently nor generally sown, it cannot be said to be magnus proventus ecclesiæ, and therefore is to be ranked among the small tithes. Upon a special verdict in one Tyndall's case in C. B. it was adjudged, Cro. Car. that the tithe of woad is a small tithe, and that it belongs to the vicar. And some tithes which ratione speciei may be predial tithes, and not small tithes, yet ratione loci may be small tithes. For which reason if peas, or such sort of grain be sown in a garden, the tithes of them may ratione loci be small tithes; whereas if they were sown in a field, they would be said and reputed to be among the great tithes, as being predial tithes. it. Binge serjeant e contra.- He contended 1st. that notwithstanding woad was not a thing known at the time of the making of the statute, yet tithes ought to be paid of it, if it be in its nature tithable: for if it had been sown at that time, tithes must have been paid for it and, therefore, it being sown at this day, tithes shall be paid of Saffron was not a thing commonly known at the time of the making of the statute; yet, because it was in its nature tithable, tithes without denial are paid of it at this day; and so, by consequence, the count is good enough without any averment. Quod fuit concessum per curiam; for if tithes of right ought to have been paid for a thing, if it had been in being at the time of making the statute, tithes shall be paid of it at this day. In the next place, he conceived, that the tithes of woad are predial tithes, because it is a plant or herb which arises ex prædio and out of the soil; and he found by Rebuffus in his 8th question de decimis, that it is taken as a general rule, quod quidquid oritur ex prædio, decimæ ejusdem sunt prædiales; and of these predial things there are fructus naturales, which grow naturally without the industry or labour of man, as grass, fruit, herbs, &c. and fructus artifici 28. Hutt. 77. This case cannot be urged as any deci sion upon the special verdict be-ing so short, so the point, entirely devoid of |