parish is generally sown with it. Thirdly, By change of place; which makes the same things, as hops in gardens small tithes, in fields great tithes. (8) But this seems to be contradicted in the case of Wharton v. Leslie, E. 5 W., where the tithe of flax, though sown in great fields, was adjudged to the vicar as a small tithe; Holt chief justice (who was of another opinion) being absent. 4 Mod. 184. Gibs. 663. [3 Salk. 349.]

And Dr. Watson is of opinion, that the quantity of land within any parish sowed with any thing, cannot make the tithe of another nature; and that what is called small tithes, seemeth to be in respect of the thing itself, and not from the small quantity of land sowed therewith, whereby the tithes thereof are but small, and of little value; for if that were to be the rule to determine what shall be said to be small tithes, then corn and hay in some places might be accounted small tithes. Wats. c. 39.

And according to this latter opinion the law is now settled; namely, that the tithes are to be denominated great or small tithes, according to the nature and quality thereof, and not according to the quantity. (9) As in the case of Smith v. Wyat, July 21. 1742. (b) A bill was brought by the rector of a parish in Essex for the tithe of potatoes sown in great quantities in the common fields, and therefore claims it as a great tithe. The defendant, the vicar insists, that notwithstanding it is sown in fields, it still continues a small tithe, and the quantity makes [410] no difference. By the lord chancellor Hardwicke: The question is, whether potatoes planted in fields are great or small tithes. Potatoes in their nature are small tithes; then the question will be, whether they receive any alteration of their right, by cultivating in greater or smaller quantities. When the distinction of statutes. Dartmouth (Countess) v. Roberts, 16 East, 334. Perception for length of time, carried as far back as living memory, founds a presumption that it existed long anterior, unless contradicted by evidence otherwise an endowment or other instrument could never be presumed in any case by force of usage. Parsons v. Bellamy and others, 4 Pri. R. 190. See also Leathes v. Newitt, 4 Pri. R. 379. "Perception and long enjoyment is the vicar's common-law proof." Per Graham B. in Butler v. Michel, 2 Pri. R. 450. Usage is the broad ground of presumption in favour of the vicar's endowment. Williams v. Price and others, 4 Pri. R. 156.

(8) As in Norton v. Clark, Gwill. 428. contradicted in Crouch v. Risden, 1 Ventr. 61. 1 Sid. 443. 2 Keb. 612. Franklyn v. St. Cross, Bunb. 78.

(9) Sims v. Bennet, 7 Bro. P. C. 29. ed. by Tomlins. 1 Ed. Rep. 382. Wharton v. Leslie, 3 Salk. 349. Moseley, 909.

(b) This doctrine is also recognised by Ch. B. Comyns, in the case of Wallis v. Pain and Underhill, Com. Rep. 633. Bunb. 344. And in Sims v. Bennet, in Dom. Proc. 1762. 5 Bro. P. C. 586. [7 id. 29. 1 Eden. 382. and infra, v. 7.]

great and small tithes was at first settled, probably it was upon this foundation, that the former yielded tithes in greater quantities, and the species of tithes which were called small produced but in small quantities: though it might be arbitrary at first, yet it hath grown into a rule, and fixed so for the sake of certainty. If this sort of roots should be called small tithes when planted in gardens, and great when planted in fields, it would introduce the utmost confusion, and must vary in every year in every parish. If the quantity will turn small tithes into great, why will it not turn great tithes into small, when the quantity of great tithes is but small? Upon the whole, his lordship was of opinion, that the tithe of potatoes, in whatever quantity, is a small tithe; and decreed accordingly. 2 Atk. 364. (1)

[The nature of crops (says Mr. Mirehouse) admits of a definite description, their quantity is always liable to dispute, therefore the law which aims at certainty adopts the above mentioned rule; and in direct subservience to it, it seems now settled, though in opposition to some respectable authorities (2), that all personal and mixed tithes, as well as hops (3), flax (4), potatoes (5), turnips (6), herbs, apples, and fruit (7), coleseed (8), clover when left for seed, and other seeds (9), rape seed (1), saffron (2), woad (3), teazels (4), thyme and tobacco (5), are small tithes, however large the quantity in which they are cultivated. (6)]

(1) The inquiry is therefore to be confined to the question Whether the nature of the thing remains the same?' for on that alone the rule depends. And see Gurley v. Birt, Bunb. R. 169. Steers v. Brassier, Gwm. 742. Hodgson v. Smith, Bunb. 279.

(2) Udall v. Tindall, Cro. Car. 28. Hutt. R. 77. Wharton v. Lisle, 3 Lev. 365. Skinn. R. 341. 356.

(3) Crouch v. Risden, 1 Vent. R. 61. 1 Sid. 443. 2 Keb. 612. Franklyn v. Master and Brethren of St. Cross, Bunb. R. 78. superseding Norton v. Clerk, Gwill. 428.

(4) Wharton v. Lisle, 4 Mod. 184. 12 Mod. 41. Skinn. R. 341. (5) Smith v. Wyatt, supra.

(6) Beaumont v. Shilcot, Gwm. 944.

(7) Lister v. Foy, Gwm. 579.

(8) Fish v. Wimberley, Gwm. 533.

(9) Wallis v. Pain, 2 Com. R. 634. Bunb. 344. Pomfret v. Lauder, Grom. 530.

(1) Robinson v. Brooke, Gwm. 471.

(2) Bedingfield v. Peak, Cro. El. 467. Moor. 909. 1 Rol. Abr. 643. Case of Dean and Chapter of Norwich, Ow. R. 74. Gouldbs. R. 149. (3) Udall v. Tindall, Cro. Car. 28. 2 Com. R. 633.

(4) Hunt v. Codrington, 1 Wood's Dec. 391.

(5) Knight v. Halsey, Gwm. 1557.

(6) On this principle, tithe of seed tares was held to be a great tithe, and to pass to the grantee of a rectory under the words "decimas garbarum," as they are rather leguminous plants than seeds newly introduced, which are small tithes. Daws v. Benn and Another, 1 B. & Cress. R. 751.

Tithes re

3. It is said by lord Coke and many others, that before the strained to council of Lateran in the year 1180, a man might have given his tithes to what church or monastery he pleased.

the proper

parish.

[411] Portion of tithes with

in another parish.

But this Dr. Prideaux doth utterly deny, for two reasons: 1. Because of the absurdity of the thing; for all the laws which had been made for tithes would have signified nothing, if no one had been certainly invested in a right to them; for in such case no one could claim them, and in case of non-payment no one could make process in law for them; and consequently no one having a special right to demand them, it must have followed in practice, that what was thus paid to every spiritual person, would in fact and reality be paid to none at all. 2. Because before the said counsel there were in this land many appropriations, whereby the tithes of whole parishes were assigned to convents or other spiritual corporations: all which would have signified nothing, if the parishioners had been at liberty to pay their tithes to what spiritual person they should think fit.

But be that as it will, it is certain that now tithes of common right do belong to that church, within the precincts of whose parish they arise. (6)

4. Yet notwithstanding, one person may prescribe to have tithes within the parish of another; and this is what is called a portion of tithes. Gibs. 663.

One reason of which might be, the lord of a manor's having his estate extending into what is now apportioned into distinct parishes; for there were tithes before the present distribution of parishes took place.

But whatever original these portions might have, they are in law so distinct from the rectory, that if one who hath them do purchase the rectory, the portion is not extinct, but remaineth grantable. But as to the cognizance thereof, the case being between parson and parson, and concerning a spiritual matter, that belongs, like the cognizance of other tithes, to the ecclesiastical court. Gibs. 663. (c)

(6) This regulation, corresponding with the ancient law of the land, was enjoined by a decretal epistle of Innocent the Third to the archbishop of Canterbury, in the year 1200. See 2 Inst. 641, and 2 Bl. Com. 27. [In Warrington v. Mothersill and others, 7 Pri. R. 666. Bill for tithes. A negative plea that defendant, since the day mentioned, had never occupied lands in the parish, was allowed, for there is no analogy between pleas at law and in equity: The object of every plea in bar in equity being to shew there is no foundation for the suit, the effect of this plea is to bring the case to a single material point. Defendant must prove himself living out of the parish, and the general description of him in the bill, as of another parish, is not sufficient. Lake v. Skinner, 1 Jac. & Walk. 214.]

(c) 1 Roll. 161. If a portion of tithes be possessed for 150 years,

extra-paro

5. Tithes extra-parochial, or within the compass of no certain Tithes in parish, belong to the crown. By the canon law they were to chial places. be disposed of at the discretion of the bishop; but by the law of England all extra-parochial tithes, as in several forests, do belong to the king, and may be granted to whom he will. (7) And accordingly they have been actually adjudged to him, not only by several resolutions of law, but also in parliament, in the case of the prior and bishop of Carlisle, in the 18th of Edward the first, concerning tithes in Inglewood forest; to wit, that the king in his forest aforesaid may build towns, assart lands (or make them fit for tillage), and confer those churches, with the tithes thereof, at his pleasure, upon whomsoever he pleaseth; because that the same forest is not within the limits of any parish. 1 Roll's Abr. 657. 2 Inst. 647. [Infra III. 6.]

In the case of Parry v. Gibbs, it was held, that under a grant of tithes arising from lands de novo assartatis et assartandis within the extra-parochial parts of a forest, the grantee was not entitled to the tithes of those lands in the occupation of the keepers of the forest, nor of lands inclosed by a private person by encroachment upon the forest. 4 Gwill. 1400.

[Tithes have every property of an inheritance in land, except Tithes lie in grant. that they lie in grant (8), and not in livery; and therefore if lessee of tithes covenant, for him and his assigns, that he will not let any of the farmers in the parish have any part of the tithes, this covenant runs with the tithes, and binds the assignee against whom the action is brought for breach of covenant. (9)]

or for such a length of time as to make the right doubtful, a court of equity will not assist the plaintiff by directing an issue, but he must establish his right at law. Scot v. Airey, 1779, cited in 1 Anst. 311. Where a portion of tithes had been possessed for 250 years by the owners of the lands, the court presumed a grant of them before the 13 Eliz. though tithes were not specifically mentioned in the title deed under which the lands were claimed. Oxenden, bart. v. Skinner, 4 Gwill. 1513. [Again, in favour of uninterrupted enjoyment by perception of tithe hay by plaintiff and his ancestors, though an endowment of the vicarage in A. D.1253 with the said tithe be shewn, it shall be presumed that a vicar granted it to a layman as a portion of tithes before the restraining statutes. Dartmouth (Countess) v. Roberts, 16 East R. 334.]

(7) The king is entitled jure corone to the tithe of the produce of all extra-parochial lands; and this right is not confined to such as are, strictly speaking, forests. The putting in charge the tithes of an extra-parochial place, in the accounts of successive auditors, is a sufficient standing insuper' within 9 G. 3. c. 16. (nullum tempus act), though 'nil' had been always returned in such accounts, and the crown had neither granted leases of tithes, or received any tithes within 60 years. Atto. Gen. v. Lord Eardley, 8 Pri. R. 74.

(8) Chave v. Calmel, 3 Burr. 1873.

(9) Bally, clerk, v. Wells, 3 Wils. R. 25. 30.

III. Of what things tithes shall be paid; and therem of exemptions and discharges from tithes.

1. Of common right tithes are to be paid for such things only as do yield a yearly increase by the act of God. Wats. c. 46. 1 Roll's Abr. 641.

Yet this rule admits of some exceptions; as, for instance, tithe is due of saffron, though gathered but once in three years; and concerning sylva cædua, there is an entry in the register, that consultations shall be granted thereof, notwithstanding that it is not renewed every year. Gibs. 669.

2. Generally, of things increasing yearly, tithes shall be paid only once in the year. Gibs. 669.

But this rule also is not universally true. And it is evidently against the rule of the canon law: which requireth, that if seeds be sown upon the same ground, and renew oftener than once in the year, the tithes thereof shall be paid so often as they renew (c). And this seemeth still to be the law; as in the case of clover, for instance, which reneweth oftener than once in the year, tithes thereof shall be paid as often as it doth renew. (2)

3. Of common right, no tithes are to be paid of quarries of stone or slate, for that they are parcel of the freehold, and the parson hath tithes of the grass or corn which grow upon the surface of the land in which the quarry is; so also, not for coal, turf, flags, tin, lead, brick, tile, earthen pots, lime, marle, chalk, and such like; because they are not the increase, but of the substance of the earth. And the like hath been resolved of houses (considered separately from the soil), as having no annual increase. But by particular custom, tithes of any of these may be payable. 2 Inst. 651.660. [Wats. C. L. 486. Anon. Cro. C. 596. Hob. R. 11 as e. g. of tithe ore (3).]

4. By the common law of England, there is no tithe due for things that are feræ natura; and therefore it hath been resolved,

(c) The passage of the canon law quoted by Dr. Gibson for this opinion is a decree of Clement III. to be found in X. 3. 30. 21. Ex parte canonicorum ecclesiæ tuæ nobis est querela proposita quod quidam agricultores, cum simul vel diversis temporibus anni, in eodem horto vel agro diversa semina sparserint, non nisi de unius illorum seminum fructibus decimas persolvunt. Mandamus quatenus si noveris rem taliter se habere, agricultores illos ut de omnibus prædiorum fructibus decimas absque diminutione persolvant, ecclesiastica censura compellas. But the complaint there made is for sowing different seeds in the same ground, and paying tithes of the produce of one only, and not for refusing to pay different tithes of the produce of the same seed; so that the authority does not support the position. Vid. infra, V. II. 2. & 3.

(2) 2 Gwill. 584. infra, 469. 4.

(3) Buxton v. Hutchinson, 2 Vern. R. 46.