ACCOUNT OF MIXED STOCK AGISTED FROM 1st MAY TO 1st Nov. 1831. The tithe in kind of animals is only due upon those which were anciently kept for profit as domestic stock; and therefore deer, though now fed in inclosed parks, and rabbits and game, or animals feræ naturæ, as wild things are called, are exempt. The young of those, which are titheable, pay at the time of their being weaned; and this is, in some places, fixed, by former usage, on the 1st of August, or Lammas-day, for sheep; but the breeder is at liberty to sell the lambs, or any other unweaned stock, whenever he pleases, on paying the tenth of their value, the dams then becoming liable to the tithe of agistment, from which they would otherwise have been free while suckling. In tithing them, it is customary for the owner to choose two out of ten, after which the tithing-man takes one; and when a number not amounting to ten remains, a tenth of the estimated value is generally paid; though in some parishes a custom exists, by which the parson is, in such cases, entitled to one lamb or pig, if the number exceed six, but has no claim if it be under. In others there is a settled rate, or the tithe is carried over to the ensuing year. It seems, however, from a late decision in the Exchequer, that the validity of these usages cannot be supported*; for, although the courts uphold customs that have existed time immemorial, it yet is a maxim of the law, that they must have been originally founded in reason; and, unless in the instance of a fixed rate of payment per head, the other modes are liable to the objection of uncertainty, and opposed to the principle of tithes, which holds the sum to be an exact tenth, and the payment to be due at the moment it arises. The following forms will show the manner in which an account may be rendered of stock titheable in kind: TITHE ACCOUNT OF A BREEDing and Store FLOCK OF SHEEP FROM MICHAELMAS TO MICHAELMAS. 155 lambs dropped between the 14th Feb. and 21st March, viz., 7 died before weaning. £. s. d. 148 valued at weaning time, as per agreement, at 8s. per head 59 4 0 28 2 10 150 ewe fleeces 115 Teg do. TITHE ACCOUNT of Breeding STOCK FROM MICHAELMAS TO MICHAELMAS. 20 0 0 Value of milk to other extra calves bought for suckling, Total value 62 12 0 Tithe 6 5 01 The suckling of calves for veal being a practice introduced by modern luxury, is not noticed among the ancient regulations of tithe; but, as the young animals would suffer if deprived of the tenth day's milk, it is only reasonable that the suckler should be allowed to pay upon the value of the calves, after deducting the cost and extra expenses of those purchased. It is, however, doubtful whether, in strictness of law, payment might not be enforced in milk; but it is usual, in dairy counties, to pay a yearly sum for each cow beyond the number kept solely for the use of the family. The manner in which the tithing of milk, wool, and some other articles of common produce, is regulated, is as follows; always, however, subject to be varied by any local custom which has existed time immemorial. The tithe of milk is payable, when no prescription exists to the contrary, by every tenth meal, both morning and evening, and not by every tenth quart. It is generally supposed that the milk should be carried to the vicarage, or to the church porch, and there, should the tithing-man not be ready to receive it, that it may be spilled upon the ground; and much difference of opinion appears to have formerly prevailed on this point among the judges of the superior courts; but, according to a late authority, it seems to be now finally decided, "that, if there is no particular custom, the parishioner is only obliged to milk the cows at his usual residence or place of milking, and to keep it until the next milking-time, previous to which the tithe-owner must take it away in his own vessels *." Tithe is not due upon butter, nor, generally, upon cheese; but there is a custom in some parishes, where cheese is constantly made, to pay the tenth part at the end of the season, instead of the milk, the whey, which is not titheable, being deemed equal to the expense of churning. The tithe of wool may be rendered by the tenth fleece; but the most common and the most regular way is by weight †. The locks and clippings are exempt ‡. The tithe of pigs being either taken in kind or estimated on the value of each litter, or paid annually, in a fixed sum for each breeding sow, those afterwards fatted are exempt; but if only the number of seven have been farrowed, and no composition having been paid, then one pig is payable to the tithe-owner; or, if a less number than seven be farrowed, they are wholly exempt. That of poultry may be levied either upon the chickens or the eggs, (or *Toller, 3d. edit. p. 128 to 135. Formerly the tithe of lambs and of wool was apportioned, according to the time the sheep were fed, among the claimants in the different parishes, when they were fed in more than one: but it is now payable in that parish in which they yean or are shorn; and thus they may become liable to both tithe in kind and of agistment, if fed in different parishes.-Burn's Eccles. Law, vol. iii., p. 472, Toller, 3d edit., p. 136. a modus either for each, or the whole quantity in some places customary,) but not on both. Decoys of wild ducks, and pheasants or partridges, though kept tame, are exempt. The tithe of honey is taken by liquid measure, but that of the war by weight. WOOD. WOOD, of more than twenty years standing, if oak, ash, elm, or of any other kind, which by the custom of the country is deemed 'gros bois, gross wood,' or timber, is exonerated from tithe by the statute entitled de Sylva cæduâ, 45 Edward III., c. 3; but if, when cut down, the stumps be left as stools, the shoots pay as coppice*; and birch, willow, maple, alder, hazel, holly, and those species which cannot be considered as timber, are subject at whatever age they may be cut †. In like manner all loppings of pollards, although the tree be of more than twenty years' growth, and the trimmings of hedgerows cut as faggots, or brush-wood, and even acorns and beech-mast if sold, are subject to tithe; and it has been decided, that, in setting out the tithe of wood, or acorns, (unless the latter be left for consumption on the ground, in which case it is exempt,) it must be either stacked, or bound into faggots, or measured, in the manner in which it is commonly prepared for removal. From this tithe, however, there are exemptions, by the statute 2 Edward VI., c. 13, in favour of the bark, and of all woods used as fuel in the owner's or tenant's dwelling, or for the repairs of the premises, the making of agricultural implements, fences and hurdles, or other purposes of husbandry, provided it be so applied in the same parish in which it is cut; but hop-poles are only exempt when the tithe of the hops and wood belongs to the same person; and, as the one is rectorial, and the other vicarial, and may be held separately, the exemption cannot, in that case, be claimed. Yet, notwithstanding these specific provisions of an act of parliament which is still in force, a decision was lately obtained in the Exchequer in favour of a claim to the tithe of wood, which was proved to have been used for the above purposes, on the ground, that it is titheable as soon as it is felled; and that the subsequent use which might be made of it, could not be ascertained for some months afterwards ‡.' This reasoning is, however, far from conclusive, and the declaration of the intended use should be held sufficient to exonerate it until it be removed out of the parish, in which case the owner would become liable, Some districts, chiefly the site of ancient royal forests, are also wholly free of this tithe, and this local immunity extends to all the lands within the precincts of that extensive range known as the Wealds of Kent, Surrey, and Sussex. Orchards and gardens are titheable not only on the fruit that is gathered, and on the windfalls, but also on the grass if mown, or fed; or any other crop produced upon the ground: but the grass of lawns, mown solely to keep the sward in order, and that on the headlands in arable fields, is exempt. Tithe is also due on plants sold out of a nursery; even, it has * It was decided in the Court of Exchequer, in the case of Evans v. Rowe, in July, 1825, M'Cleland and Younge, 577, that oak growing from stools, though eighty years of age, was titheable, no proof being given at what age the tree was originally felled, though it was admitted that it must have been exempt, if sprung from an acorn. The decision was, however, dissented from by Baron Graham, and appears so inconsistent with the provisions of the statute of Sylvâ cæduâ, that it would probably be reversed if carried before a higher tribunal. See the Property Lawyer, vol. v. † Maiden trees, of beech, have, however, been held to be timber. Ibid. Willis v. Stone, Exch, 1827. Younge and Jervis, p. 262. Prop. Lawyer, vol. iv.p. 122. been lately held, if transplanted within the same parish: but when the tithe of fruit has been paid, the trees which produce it, if afterwards cut down, are exempt. The parson is not entitled to notice on the pulling or cutting of fruit or vegetables in gardens; but the tenth part of what is used must be left for him. WASTES. Respecting waste land, it is enacted by 2 Edward VI., c. 13, That all such barren heath or waste ground, which before that time had lain barren, and paid no tithe by reason of the same barrenness, and now or henceforth shall be improved and converted into arable ground, or meadows, shall from henceforth, after the end and term of seven years after such improvement fully ended and determined, pay tithe for the corn and hay growing upon the same.' The law was wisely framed for the encouragement of inclosures, but in its enforcement the courts have thrown so much doubt upon its provisions, or have construed them, in most instances, with such an evident leaning to the church, as nearly to deprive it of force. There arose, however, a most important discussion on this subject, on the enclosure, a few years ago, of the parish of Broadfield, in Cumberland; and after a long-contested suit, it was decided by three different juries, that where the first crop shall be inadequate to the payment of the whole cost of cultivation, lime, &c., tithes are not payable for the succeeding seven years *.' RENT OF TITHES. In valuing the rent of land subject to tithes, their amount, as well as that of all other assessments, must be deducted; but the proportion which they bear to each other, varying according to the liability of the soil to tithe upon its produce, or to other assessments upon its value, no certain rule can be laid down for such calculations. The following estimates, taken from a recent and very useful publication †, will, however, afford some idea of the manner in which they may be framed. On arable farms of which one-third is kept in grass, and on which all tithes are due, one-fifth part of the annual value, or rack rent, is, in general, deemed a fair compensation; that is, land which, if free of tithe, would be worth 35s. per acre, is only considered worth 28s. per acre if subject to the payment of both great and small tithe. Thus, were it required to ascertain the value of the full tithe upon a farm of one hundred acres, supposing it to be under the following course of cultivation But were this sum would average 7s. per acre, or one-fifth of the rent. *See Mr. Curwen's Report to the Workington Agricultural Society, 1819. According to the foregoing estimates, the value of the vicarial appears to be about one-half of the rectorial tithe, which agrees with the common valuation on such farms as that here supposed: so that, in calculating the rates payable in respect of rent and tithes, the following would be their relative proportions: In Catholic countries, tithes are possessed solely by the church, and are there claimed jure divino, by divine right. Here, however, they are held only by the common and statute law; and, although the title to their possession rests upon a foundation as strong as to any other kind of property, yet, the legislature, having the power to limit the exercise of all rights which become injurious to more extensive interests, has on various occasions interfered in their regulation. In Scotland, so early as 1587, the whole of the teinds, as the tithes are there called, with the exception of those granted as endowments to colleges and schools, were annexed to the crown; and were commuted in the reign of Charles I. into a fixed modus, estimated at one-fifth of the annual value of the land, out of which a stipend is paid to the minister of each parish. This is generally allotted in certain measures of grain, which continue to bear some proportion to the changes in the expense of living, and it is in the power of the court of teinds, within whose jurisdiction this portion of church property lies, to augment the parochial provision whenever it may become insufficient. The act of commutation empowers the owners of all estates to have their tithes valued at any time, after which the rate then settled is unalterable; and it also allows them to purchase that valuation at a fixed price, unless the tithes should be collegiate property, which, though subject to valuation, is not saleable. Of this permission most of the proprietors have availed themselves, and although some have neglected it, and there are consequently still instances in that country of land remaining subject to tithe in kind, yet the value is almost invariably included in the rent; and to use the words of an eminent Scotch surveyor," the farmer has there no concurrence with the clergyman of his parish, but to live with him in good neighbourhood, and to profit by his instructions and example *" In Ireland, the pasture-land, though forming the largest portion of the island, was discharged from the tithe of agistment by an act of parliament, and other regulations of a more comprehensive nature have been since enacted, and are in further contemplation. In this country, perhaps the interest of the church itself, but certainly * Agricultural Survey of Berwicksh. by Robert Kerr, F.R. and A.S., 2d. Ed. p. 126. G |