1627.

Norton

V.

Clarke.

ales vel industriales, to the growth of which the industry and labour of man are requisite, as corn, woad, hemp, flax, &c. And the tithes of each of these are called decima provenientes & decima fixa, because they arise ex fructibus stirpis in terrá fixe. And there are also tithes of a mixt nature, which are called decima renovantes super terram; [430] as the tithes of wool, lamb, calves, &c. for they receive their aliment and nutriment from the earth and the fruits of it, though the things whereof the tithes are demanded do not proceed from the earth. And of these predial and mixt tithes, the tithes shall be said to be great or small ratione temporis et ratione loci; for prescription and the usage of the place may make those tithes to be great tithes, which had otherwise been small tithes. There are also personal tithes, which are tithes proceeding from the labour and industry of a man, as the tithes of the fees of a lawyer, physician, attorney, &c. or of a man's salary. These tithes follow the person, and are neither decimæ exeuntes de terrá, nor decima renovantes super terram. The tithes of fish in a river are said to be personal tithes, because mutant locum from one place to another, and are not circumscribed to any place certain: but the tithes of fish in a pond are predial, for they are circumscribed in a place certain, et non possunt mutare locum. And there is a difference in many respects between predial, mixt, and personal tithes : for predial and mixt tithes are to be paid, whether the possession of the things, whereof the tithes are demanded, be just or unjust: but personal tithes are not to be paid but per justum possessorum: and therefore tithes are not to be paid of a harlot's hire, or of gains made by robbery, or other illegal courses: for such is turpe lucrum, which is hateful to God and

Predial and mixt tithes are to be paid sine deductione expensarum; whereas personal tithes are to be paid deductis expensis. There cannot be a prescription in non decimando concerning predial and mixt tithes, unless it be a prescription by an entire country; but there may be a prescription in non decimando concerning personal tithes. And debt upon the statute of 2 & 3 E. 6. will not lie for not setting out personal tithes, as it will for the non-payment of predial tithes, and of tithes of woad, which are predial.

Walter, Hutton, and Harvey, justices, were of opinion, that the tithes of woad are predial tithes.

The case was argued again in the following term; and it was agreed, 1st. that no tithes are tithes within the statute of 2 & 3 E. 6. for the subtraction of which an action upon that statute will lie, but predial tithes. 2. It was agreed, that the tithes of woad are predial tithes, nam oriuntar ex prædio; and therefore they cannot be other than predial tithes, according to Doctor and Student 69. (a)

(a) Di. 2. ch. 55.

3.

1627.

Norton

v.

Clarke.

And P. 1. Ja. Rot. 1119. Cooke and Southby's case, in C.B. it was resolved, that tithes of apple-trees are predial tithes, and that debt upon the statute of 2 & 3 E. 6. lies for the subtraction of them. There was a difference of opinion, whether an action of debt upon [431] the statute of 2 & 3 E. 6. would lie for not setting out such predial tithes as are in their nature small tithes. And the better opinion of the justices and barons was, that an action would well lie. However, as Hutton, Harvey, and Walter, seemed to be of a contrary opinion, it was adjourned for that point.

3 Car. A.D. 1627. In Ch.

Yate v. Southby. [1 Ch. Rep. 25.]

refused to

A BILL of review brought to reverse a decree for tithes made by Chancery the lord Ellesmere, in respect the plaintiff hạth had a verdict at reverse a law, and sentence in the ecclesiastical court, since the decree; tithes. this court could not reverse the decree, notwithstanding any thing urged against it.

4 Car. A.D. 1628. In Ch.

Browne v. Thetford. [1 Ch. Rep. 27.]

to bill for

THE bill is to maintain the prescription of a modus decimandi, to Demurrer which the defendant demurred, and says it is proper for the com- the premon law, or the ecclesiastical court. This court allowed the demurrer, and dismissed the bill. But note the time, &c. such bills having been often allowed, both before and since.

scription of cimandi,

a modus de

allowed. 1 Chanc.

Rep. 27. But quære, & vide ante & post.

H. 4 Car. A.D. 1628. C. B.

Scott v. Wall. [Hob. 247.]

must be sued for in

the spiritual well as the

court as

kind.

THE plaintiff had a prohibition, containing, that where he had A modus 20 acres of wheat, and had set out the tenth part of it, the defendant pretending, that there was a custom of tithing, that the owner should have forty-five sheaves and the parson five, had sued for that, whereas there was no such custom: but the court said, that tithe in the modus decimandi must be sued for in the ecclesiastical court, as well as the very tithe, and if it be allowed between the parties they shall proceed there; but, if the custom be denied, it must be tried at the common law; and if it be found for the custom, then a con- 239. S. P. sultation must go, otherwise the prohibition standeth.

Hetl. 133.

S. C. Noy

81.

2 Ventr.

1628.

Farmer

V.

Shereman.

manded of

fore the

statute

H. 4 Car. A. D. 1628. C. B.

Farmer v. Shereman. [Hob. 248.]

THE case in prohibition was, that an abbot having a privilege to Dismes de- be discharged of tithes quamdiu manibus propriis in the time of E. 4. abbey lands, made a gift in tail, and 31 H. 8. the abbey was dissolved. The entailed be- question was, whether the donee of the issue should be discharged. It seemeth clear he shall not be discharged; for the statute dischargeth none, but as the abbot was discharged at the time of the dissolution: so that they must claim the estate and discharge under *[432] the abbot, since the statute. So, if by a common recovery the reversion had been barred before or after the statute. But, if the land had returned to the abbot or king, before or after the statute, the case had been otherwise.

31 H. 8. Hetl. 138. S. C.

Prohibition

the ecclesi

H. 4 Car. A.D. 1628. C. B.

Napper v. Seward. [Hob. 248.]

NAPPER against Seward a parson, had a prohibition against his

to a suit in parishioners, that libelled in the spiritual court to make proof by astical court witness there of divers manner of tithing, in perpetuam rei memo

to make

proof of a

riam. A strange attempt!

custom of tithing in perpetuam rei memoriam.

Prohibition

for the se

S. C.

H. 4 Car. A.D. 1628. C.B.

Hide v. Ellis. [Hob. 250.]

PROHIBITION for Hide plaintiff against Ellis, farmer of the rec

cond hay- tory of Shinfield in Com. Berk. and prescribed, that all tenants and tithe having occupiers of the meadow had used to cut the grass and strew it been paid for the first. abroad called tedding, and then to gather it into winrows, and Hetl. 133. then to put into grass cocks in equal parts without fraud, and then to set out every tenth cock great or small to the parson, in full satisfaction, as well of the first, as of the latter making; upon traverse of the custom, it was found for the plaintiff. And exception was taken that the custom was void, because it contained no more than every owner ought to do, and so no recompence for the second making: but the court gave judgment for the plaintiff. For tithe naturally is but the tenth of the revenue of my ground, not of my labour and industry, where it may be divided; as in grass it may, though not in corn and in divers places they set out the tenth acre of wood standing, and so of grass (a): and so here the jury having found this form of tithing to be the custom there,

(a) Over-ruled in Knight v. Halsey, infra, 1531.

CASES.

it is well. (a) And the like judgement was given upon the like custom in the king's bench, P. 2 Ja. Rot. 191. or 192. between Hall and Symonds. (Qu. whether not Hall v. Fettyplace, supra, 222.)

Tr. 4 Car. A.D. 1628. In Scac.

--

1628.

Hide

v.

Ellis.

[433]

ther there
may be a

exchequer suit in the for tithes of

London

houses in

upon the

37 H. 8.

statute of

Supra 285.

Dr. Burgess v. Symons. [Litt. Rep. 102. 141.] DOCTOR Burgess, parson of St. Magnus upon London Bridge, Qu. Whesued here, upon the decree confirmed by the act of parliament of 37 H. 8. c. 12. concerning tithe in London, for tithes; and for privilege, shews, that the king has four nobles a year revenue out of it. There was a demurrer to the jurisdiction; and for the doctor, precedents were alleged; one of 14 Ja. 1. where the parson of St. Botolph's without Bishopsgate, being impropriator upon a grant in fee farm, sued here; Coventry being recorder at this time, of counagainst the parson. sel with the Finch, recorder. Those precedents might be of tithes claimed by custom; and for such, they may well sue here, or in court christian; but, for tithes grounded on the statute, or which have their commencement from the statute, and not otherwise, they ought not to sue by any other method, than that which the statute directs, nor before any other than the judge appointed by the statute. And as for tithes for houses, there are none, unless the same be given by this decree, any more than there were tithes payable for a mill, before the statute of Articuli Cleri; but newly-erected mills pay tithes for no tithes are due for freeholds by common law; and yet at common law, wood and underwood were tithable, though, before the severance, it was parcel of the freehold, and so says Doctor and Student. (b)

And it appears also by a record, which I have seen, of 2 R. 2. Supra 8. among the parliament rolls, whereby the commons pray, that wood may be ascertained, for they say that before the great plague, no tithe was paid for any sort of wood; but this was altered by the statute of silva cædua, 50 E. 3. and it was first obtained at the con- Supra 5. stitution of Winchelsey. And at this day no tithes are payable for mines and quarries, unless by custom; so that there is no other foundation, in the present case, but the above decree affirmed by [ 434 ] parliament, by which no court, but the mayor of London, can take cognizance of it. And to this purpose is the case of Scudamore Supra 227, against Bell, 5 Ja. 1. where upon debate a prohibition was awarded. 228. And this case was compared to that of the orphans of London, where the court will award a prohibition, if any spiritual court interferes with their estate, though it be only by private custom.

(a) Fox v. Ayde, 2 P. Wms. 522. infra, 697. 1561. infra, vol. ii. Portinger v. Johnson, supra, 286. Dd 4

Newman v. Morgan, 10 East, 5.
(b) Di. 2. ch. 55.

1628.

Dr.Burgess

V.

Symons.

Walters, 38 Ass. The king's farmer sues here for tithes; so that this court may hold plea of tithes in some cases; and there have also been cases, in which the question was, whether tithes should be paid upon letting on lease houses in London, with great fine and rent; and for this particular, this court has had jurisdiction; but we will advise further. (a)

In the next term the case was argued again; and Walters said, that he willingly gave up the great question of jurisdiction, having inquired what the case was, between the parson and the other. And it appeared, that the parishioner farmed an house at five pounds rent, and as it stood empty, he, not being able to get a tenant by reason of the great plague, would not therefore, during that time, pay tithes.

But Walters said, as this was the case, he would advise him to pay tithes; and further, that he could shew the case adjudged, where one leased an house in London, rendering rent, and afterwards purchased the same house in fee, though no rent was paid for it, yet the parson shall have tithes, according to the rent paid last. But, if one builds a new house, and inhabits it, or leases it rent-free, the parson shall not have tithes nor remedy. And this is not the great case, so much litigated, whether tithes shall be paid for the increase of rent, when the lessee makes under leases, reservQu. when ing greater rent (b); nor the case of tithes according to the fine taken for the lease, which has been lately resolved (c); and therefore he advised the defendant to agree with the parson, and pay his tithes.

resolved.

Privilege of the exchequer, as the

M. 4 Car. A. D. 1628. In Scac.

The Parson of St. Botolph's case. [Litt. Rep. 141.] THE case of the parson of St. Botolph's without Bishopsgate, who sued here for tithes, was moved now again. Noy said, that if one king's lessee be bound to the king, by covenant, with condition to do such a disallowed, because the thing, he may, before a breach, sue here; and so, for * the same estate under reason, may every one, who holds land of the king, by rentparty claim- service, either for the repair of a bridge, or of a causeway, ed the prior of an highway, &c. for in these cases they can the better out of the perform their services, if they are paid by their debtors, &c. king. and so, by this means, all cases may be drawn into this court, if, *[ 435 ] upon the other point, the lessee of the farmer be privileged. But the court dismissed the bill, and declared their reason to be solely,

which the

vilege, was

(a) Langham v. Baker, Hardr. 116. infra, 511. Umfreville v. Batchelor, infra, 548. Sayer v. Mumford, infra, 546. Kynaston v. Miller, infra, 903. Ivatt v. Warren, infra, 1054. The Warden and Minor Canons of St. Paul v. Crickett, 2 Ves. 563. infra, vol. ii.

(b) Probably the case of Meadhouse v. Taylor, Noy, 130. supra, 329. n.

(c) Probably the case of Dunn v. Burrell and Goffe, supra, 299.