the Parson, &c. his deputy or farmer, from receiving and carrying away the tithe, and in consequence the tithe is lost or damaged, he is subject to a penalty 9. Where a person has cattle feeding on a waste, the parish of which is not known, he shall pay his tithes to the Parson, &c. of the parish where the owner dwells'. The statute does not affect prescription or compositions. Waste ground which has before paid no tithe, shall pay it after the term of seven years from the time it was converted into arable or meadow land. Certain persons are directed to pay the usual personal tithes ", and the Ordinary is at liberty to examine any person who refuses to pay them. The usual offerings are to be paid to the Parson, &c. of the parish where a person dwells, on the four accustomed offering days. The accustomed tithe of fish is also to be paid 2; but the Act is not to extend to tithe of houses payable in London or Canterburya. Provisions are then made as to proceedings, and the statute concludes by abolishing tithes of goods given on marriage before payable in some parts of Wales C. 4 s. 2. p. 338. ts. 5. ib. rs. 3. ib. $ s. 4. ib. * s. 9. ib. y s. 10. ib. z s. 11. p. 340. ib. 341. cs. 16. p. 342. Numerous decisions have at different times been made upon the construction of this statute: 1st. As to setting out predial tithes. Predial tithes are such as arise ex prædo, and embrace all products arising immediately from the earth, including agistment, which, though consumed by the mouths of cattle, and therefore not capable of being divided and set out, is not the less a predial tithe. Ellis v. Saul, 1 Anstr.332. Gwill. 1447. They must be so set out or exposed, that the Clergyman may have the opportunity of seeing his tithe justly severed; in other words, that he may compare his tenth with the other nine parts, and it appears that no custom to the contrary can be supported. Tennant v. Stubbing, 3. Anstr. 640. Gwill. 1438. The period at which each article is to be tithed is when it comes into such a state of severance, according to the usual course of husbandry, that the Clergyman may have this opportunity of comparison. Erskine v. Ruffle. Gwill. 967. The legal mode of tithing wheat is in the sheaf; Shallcross v. Jowle 12. East, 261. Gwill. 1698; though reasonable customs of a different nature bave sometimes been allowed: of barley and oats in the cock, unless where it is the custom of the country to bind them into sheaves. Erskine v. Ruffle, ubi supra. And tithing by the swathe is bad. Ibid. Collyer v. Howes, 3. Anstr. 954. Gwill. 1490. The mode of tithing peas, beans, and vetches is less definite; but in a case where peas and vetches were put into wads of unequal size, and afterwards into cocks of equal size, Lord Ellenborough decided that the latter was the legal titheable state. Smyth v. Sambrook. 1. Maule and Selw. 66. Gwill. 1707. The legal mode of tithing grass is when it is put into grass cocks after being tedded. Degge, p. 2. c. 3. So also of clover. Collyer v. Howes, Gwill. 1489. Toller 79. Newman v. Morgan, 10. East. 5. The farmer is not bound to give notice to the Clergyman of the time of set Stat. 7 and 8 WILL. III. Cap. 6. No. 3. Where persons do not pay their small tithes, offerings, or Recovery of compositions in twenty days after demand, (by stat. 53 G. 3. tithes be fore c. 127. s. 4.d not exceeding in amount 107. and including Justices. tithes whether great or small,) the person to whom they are due may complain, in writing, to two or more disinterested Justices, who may summon the parties complained of to appear before them, and on default of their appearance may determine the complaint, make compensation, and award certain costs; and upon refusal of the parties to pay after ten days' notice, the Constable may, by warrant, distrain their goods, and, if the sum adjudged is not then paid, may ting the tithes out, unless there is a custom to that effect, and if there is such a custom, a reasonable notice as to time must be given, and an hour is not sufficient. Butter v. Heathby, Gwill. 928. Tennant v. Stubbing. Id. 1438. As a general rule, the whole field must be cut before the parishioner begins to tithe; though this rule is subject to the necessary exceptions of partial ripeness, and the state of the weather. Erskine v. Ruffle, Gwill. 966. Leathes v. Levinson, 12. East. 239. The Clergyman is entitled to make the grass into hay on the land where it grows, and is entitled for that purpose to make use of the space it grew upon. Halliwell v. Trappes, 2. Taunt. 55. Wats, c. 49. Degge, p. 2. c. 3. And in carrying away his tithes he may make use of the roads ordinarily used for the ordinary occupation of the close or field, but not every way used by the farmer for his private accommodation. Cobb v. Selby, 3. Bos. and Pull, 466. Gwill. 1644. 2dly. As to the exemption afforded by the statute to barren heuth or waste ground, the cases upon this subject have been decided principally upon their own circumstances; but the proper test of barrenness appears to be, whether the land requires extraordinary expenditure, either in manure or labour to bring it into a proper state of cultivation; and therefore where land was of a naturally good quality, although the expense of breaking and liming it exceeded the returns made to the farmer in the first four years, it was not held to be exempt. Warwick v. Collins, 5. Maule and Selw. 166. Gwill. 1720. Lord Selsea v. Powel, 6. Taunt. 297. Gwill. 1738. 3dly. As to the payment of personal tithes. Personal tithes in strictness consist of the tenth part of the clear profits of all manual occupations and trades, and are due by custom, and not of common right. The tithes of mills and fish however appear to be the only tithes of this class which at the present day are paid; and mills more ancient than 9 Ed. 2. are discharged by the statute then passed called articuli cleri; and the custom of tithing fish taken out of the sea or a pond must be shewn. Gwavas v. Kelynack, Gwill. 691. Williams v. Baron. Id. 931. Austen v. Nicholas. Id. 615. The tithe of mills appears to be merely in respect of the profit of grinding after deducting every expense, and by some recent cases not yet in print, it appears that they are not payable in respect of corn belonging to the miller and ground by him and afterwards sold. Townely v. Colegate, Chanc. May 22, 1828. Brown v. Wolsey, Exch. to be heard on appeal to the House of Lords. d p. 349. es. 1. p. 342. By stat. 7 Geo. 4. c. 15. in cities and towns where the Justices are Patrons of the church, two Justices of the adjoining county or division may hear the complaint, p. 352. f s. 2. p. 343. No. 4. Recovery tithes. after three days publicly sell the same, and satisfy the complainant out of the proceeds 5. The Justices may administer oaths to the witnesses h. The Act does not extend to the city of London, nor to any other city or town where tithes, &c. are settled by Act of Parliamenti: no complaint shall be heard, unless it is made within two years after the tithes are duek. Persons finding themselves aggrieved may appeal to the Quarter Sessions, and if the Justices confirm the judgment, they may give reasonable costs: but where the parties complained of insist upon any prescription or modus, and give security to pay costs, the Justices shall forbear to give judgment m. Every person obtaining a judgment under the Act shall cause it to be enrolled at the next Quarter Sessions n; and if any person, against whom such judgment shall be had, remove out of the county, &c. after judgment, the Justices who made it shall certify it to any Justice of another county, &c. wherein such person shall be an inhabitant, and such Justice is required to levy the sums adjudged to be levied as fully as the former Justices o. The Justices may give costs not exceeding 10s. to the party prosecuted P, and double costs are given in certain cases to persons sued for any thing done in the execution of the Act 9. Stat. 7 and 8 WILL. Cap. 34. If Quakers refuse to pay their great or small tithes, or of Quakers' to compound for them, or to pay their church-rates, a process nearly similar to that directed in the preceding statute may be instituted to recover them (by stat. 53 Geo. 3. c. 127. to the amount of 50%. 1) If any one, duly rated to a church-rate or chapel-rate, refuses or neglects to pay it, one Justice of the Peace of the County, &c. upon the complaint of the Church-wardens or Chapel-wardens, who ought to collect the same, may, by warrant under his hand and seal, convene before two or more Justices any person so refusing, &c. and examine upon oath into the merits of the complaint, and may direct the payment of what is due, so as the sum ordered to be paid does not exceed 10%. over and above reasonable costs. The Justices are empowered to levy the same by distress and sale, and parties aggrieved may appeal to the Quarter Sessions. The Act does not interfere with the jurisdiction of the ecclesiastical courts to enforce the payment of any rate exceeding 107. and directs the Justices to forbear giving judgment where the validity of the rate or the liability of the party to pay is disputed: the Act does not affect any parliamentary regulations respecting particular parishes or districts s. PART II. CLASS I. Stat. 1 ELIZ. Cap. 2. Statutes relating to the Lord's Day. ALL persons, having no lawful or reasonable excuse to be absent, shall endeavour themselves to resort to their parish church or chapel, upon Sundays and holydays, upon pain of the censures of the church, and the forfeiture upon every offence of twelvepencet. Stat. 1 CAR. I. Cap. 1. There shall be no meetings or assemblies of people out of their own parishes on the Lord's day, for any sports and pastimes, nor for any of the pastimes mentioned in the Act, or unlawful exercises " within their own parishes; and every person offending shall forfeit three shillings and fourpence for every offence, to the use of the poor of the parish; and one Justice of the Peace upon proof as mentioned in the Act, may give a warrant to the Constables and Churchwardens, to levy the penalty by distress, and in default of such distress to set the offender in the stocks for three * s. 7. p. 350. ts. 14. p. 355. "This statute impliedly admits innocent amusements within the parish after service is over on the Lord's day, 4 Black. Com. 62. No. 1. No. 2. No. 3. No. 7. hours: but no person is to be impeached, except within one month after the commission of the offence *. Stat. 3 CAR. I. Cap. 1. No carriers, waggoners, carmen, or drovers, shall travel upon the Lord's day by themselves or others, upon pain of forfeiting twenty shillings for each offence; or if any butcher, by himself or another, kill, or sell victuals upon that day, he shall forfeit six shillings and eightpence, to be recovered as by the preceding statute, or by suit of an informer, for the use of the poor: provisions are likewise made as to the place where the information, &c. shall be made, as to suits against parish officers acting in the execution of the Act, and limits liability to six months after the commission of the of fence y. Stat. 29 CAR. II. Cap. 7. This statute orders the execution of the former statutes upon the subject, and likewise directs that no tradesman, artificer, labourer, &c. do exercise any business, or work of their ordinary callings upon the Lord's day, (works of necessity and charity only excepted,) upon pain of forfeiture of five shillings, if of the age of fourteen years: and no person shall cry or expose wares, fruits, herbs, or goods, upon pain of forfeiting them 2. No drover, horse courser, waggoner, butcher, higler, or any of their servants, shall travel on the Lord's day, upon pain of forfeiting twenty shillings for every offence: no person shall use or travel with any boat, barge, &c. with the exception mentioned, upon pain of forfeiting five shillings, to be recovered as before a. An exemption is made as to dressing meat in families, or dressing and selling meat at inns, cookshops, &c. and as to selling milk at certain timesb. Prosecutions for any of the offences mentioned are to be within ten days. The hundred is not to be responsible for persons robbed whilst travelling on the Lord's day, but must make fresh suit after the offenders; and service of process on the Lord's day shall be void d. * p. 356. a s. 1. p. 360. b s. 3. |