statute it is enacted, "That any person having an estate of inheritance, freehold, term, or interest in tithes, and being disseised, or otherwise kept or put out of possession thereof, shall have such remedy in the temporal courts for recovering the same as the case may require, in like manner as they may for lands, tenements, and other hereditaments." By force of this statute, tithes have at this day all the incidents belonging to temporal inheritances. Hence an ejectment may be maintained for tithes (h). Where the person entitled to tithes agrees by parol with the occupiers of the land that they shall hold the lands discharged of tithes for a certain time, or during the life of the tithe-owner, in consideration of the payment of a certain sum annually, an action of indebitatus assumpsit may be maintained by the tithe-owner, against the occupier, for the non-payment of the sum agreed on. In order to support this action, the plaintiff must prove the occupation of the defendant, the agreement, and the retainer of the tithes under that agreement (i). To this action the defendant cannot set up as a defence, that the plaintiff was simoniacally presented (k). Tithes, being an incorporeal hereditament, cannot pass by parol, but by deed only. Hence where, by an instrument, not under seal, A. agreed to let to B., on lease, the rectory of L., and the tithes arising from the lands in the parish of L., and also a messuage used as a homestead for collecting the tithes, at the yearly rent of 2007. ; and the rent being in arrear, A. distrained, whereupon B. brought trespass; it was holden (1), that the distress was altogether unlawful, because the agreement not being under seal, it did not operate as a demise of the tithes, and consequently there was no valid demise of the whole subject-matter, nor was there any distinct rent reserved for that part of the subject-matter, viz. the homestead, for which there might have been a legal distress.

By stat. 7 & 8 Will. III. c. 6, (made perpetual by stat. 3 & 4 Ann. c. 18, s. 1, and amended by stat. 7 Geo. IV. c. 15,) a summary method of proceeding before two J. P. is prescribed for recovering small tithes under the value of 40s. (1). But this statute contains a proviso (m), that if the party complained of shall insist

(h) Priest v. Wood, Cro. Car. 301.

(i) Peake's Evid. 411, ed. 2nd.
(k) Brooksby v. Watts, 2 Marsh. 38;

6 Taunt. 333, S. C.

(1) Gardiner v. Williamson, 2 B. & Ad. 336. (m) Sect. 8.

(1) As to the principle of the stat. 7 & 8 Will. III. c. 6, it is clear that this act was intended to apply only to those cases in which the tithes are actually due, independently of any dispute upon matters of law, either with regard to the person receiving them, or the manner of receiving them. The object of it was to give to the owner of tithes an expeditious mode of recovering them, &c. &c. By Abbott, C. J., in R. v. Jeffery, 2 Dow. & Ry. 860.

before the J. P. upon any prescription, composition, modus, agreement, or title, and deliver the same in writing to the J. P. subscribed by him or her, and shall give security to the complainant to pay such costs as, upon a trial at law, shall be given against him, in case the prescription, &c. be not allowed, then the J. P. shall forbear to give judgment, and the complainant may prosecute the adverse party for the subtraction of tithe in any court, as before this act. The 9th section directs the judgment given by virtue of this statute to be enrolled at the next general quarter sessions; and after enrolment, and satisfaction made, the judgment shall be a bar to conclude the party entitled to the tithes from any other remedy. And by stat. 53 Geo. III. c. 127, s. 4, the jurisdiction of the said justices was extended to all tithes, oblations, and compositions subtracted or withheld, where the same should not exceed 107. from any one person; and by stat. 5 & 6 Will. IV. c. 74(n), "for the more easy Recovery of Tithes," sect. 1, it is enacted, that proceedings for the recovery of any tithes, &c. under the yearly value of 107. (o), (except in the case of Quakers,) shall be had only under the powers of the two foregoing acts; with a proviso, that nothing in this act contained shall extend to any case in which actual title to any tithe, &c. shall be bonâ fide in question. And by stat. 7 & 8 Will. III. c. 34, (made perpetual and extended to all customary payments belonging to any church or chapel by 1 Geo. I. stat. 2, c. 6, the like remedy is extended to all tithes due from Quakers; and two J. P. are empowered to ascertain what is due, and to order payment, so as the sum ordered does not exceed 107.; extended to 50l. by stat. 53 Geo. III. c. 127, s. 6. These statutes were made in favour (p) to, and for the ease and benefit of, Quakers, and to save them from troublesome and expensive prosecutions. But it was never meant that a mere scruple of theirs, or an obstinate withholding of the tithes, should be any hindrance to the matter's being determined by the J. P. This would have frustrated the very intention of the legislature, which meant to give this jurisdiction to the justices in that very case; where the real right and title to the tithes should not be in dispute. By stat. 5 & 6 Will. IV. c. 74, s. 2, in the case of Quakers, no execution, or decree, or order shall be made against the person, but against the goods or other property of the defendant. Another remedy for the subtraction of tithe is, the action of debt on the stat. 2 Edw. VI., which will be the subject of the following section..

(n) Amended by stat. 4 & 5 Vict. c. 36. (0) See Peyton v. Watson, 3 Q. B. 658

2 G. & D. 750, post, p. 1296.

(p) See R. v. Wakefield, 1 Burr. 487; Burn's Justice, tit. Tithes, S. C.

II. Debt on Stat. 2 & 3 Edw. VI. c. 13, for not setting out Tithes, p. 1295; Of the Provisions of the Statute, and the construction thereof, p. 1295; Of the Persons to whom Tithes are due, p. 1309; Of the Persons by whom and against whom an Action on the Statute may be brought, p. 1310; Of the Declaration, p. 1311; Pleadings, and herein of the Statutes of Limitation, p. 1312; Evidence, p. 1313; Verdict, p. 1316; Costs, p. 1317; Judgment, p. 1317.

Of the Provisions of the Statute, and the Construction thereof (2). By the first section of this statute, it is enacted, "That every of the king's subjects shall truly and justly, without fraud or guile, divide, set out, and pay all manner of their predial tithes (3) in their proper kind, as they arise, in such manner and form as hath been of right yielded and paid within forty years next before the making this act, or of right or custom ought to have been paid. And no person shall carry away such or like tithes which have been yielded or paid within the said forty years, or of right ought to have been paid in the places titheable, before he has justly divided or set forth, for the tithe thereof, the tenth part of the same, or otherwise agreed for the tithes with the parson, vicar, or other owner or farmer of the same tithes, under the pain of forfeiture of treble value of the tithes so carried away."

This statute was made soon after the dissolution of the monasteries, before which time the tithes were in the hands of religious persons, and the usual remedy for the subtraction of them was in the ecclesiastical courts. But, when tithes became lay fees, it was thought necessary to provide a remedy for these injuries in the temporal courts, and this statute was made for that purpose. It is worthy of remark, however, that several years (nearly forty) elapsed before any proceeding was instituted on this statute in the temporal courts. An opinion at first prevailed, that as the person to whom the treble value was given was not specified, such value belonged of right to the king. But in E. T. 29 Eliz., upon an information filed by the Queen's Attorney-general against one Wood, for not setting out his tithe, whereon the defendant was found guilty, it was solemnly adjudged by the Court of Exchequer, (upon motion in arrest of judgment,) that the treble value did not belong to the king, but to the party interested, who might maintain an action of debt for recovering the same. In conformity with this opinion, an

(2) See Sir Edward Coke's exposition of this statute, 2 Inst. 648. (3) Remarks will be found in the subsequent pages on those parts of the statute which are printed in italics.

action of debt at the suit of the party interested, (more frequently termed the party grieved,) has ever since been considered as the proper remedy; and in Beadils v. Sherman, E. T. 40 Eliz. B. R., (see the record, Co. Ent. p. 161, 2nd ed.,) where this form of action was adopted, the plaintiff obtained judgment; although, on motion in arrest of judgment, it was urged, that as the statute had not mentioned the court in which the treble value was to be recovered, the only remedy was in the spiritual court. This judgment was afterwards affirmed on error in the Exchequer Chamber. "And now, (adds Sir E. Coke, at the conclusion of the record, Co. Ent. p. 162,) actions of debt on this statute are frequent and usual." But since stat. 5 & 6 Will. IV. c. 74, s. 1, an action cannot be maintained upon the foregoing statute, where the annual value of the tithes does not exceed 101. (q).

Predial Tithes.]-This clause is expressly confined to predial tithes, and does not extend to mixed or personal tithes. Hence, when in an action on this statute for not setting out the tithes of cheese, calves, lambs, &c., the plaintiff obtained a verdict; on motion in arrest of judgment (r), it was objected, that the tithes in question were not predial tithes, and consequently not within this statute, which, being penal, ought not to be extended by equity: and of this opinion was the whole court. So where the plaintiff declared for not setting out predial tithes (s), and other tithes, as the tithes of lambs, wool, &c., and the jury found a general verdict, judgment was arrested upon the like objection.

Description of predial Tithes.]—In general, under the term of predial tithes, are comprehended the tithes of such products of the earth as are renewed yearly, either spontaneously or by culture: as the tithes of corn, flax, hay, hops, saffron, wood (t), &c.; and the fruit of trees, as apples, cherries, pears, &c.

Tithe of wood also, as coppice-wood, &c. (4), is predial, and must be set out on the spot at the time of falling; but timber trees (gros-boys,) of the age of twenty years or more, are exempted from paying tithe by stat. 45 Edw. III. c. 3. That statute, which is declaratory of the common law (u), has been construed to compre

(9) Peyton v. Watson, 3 Q. B. 658; 2 G. & D. 750.

Booth v. Southraie, 2 Inst. 649.
Pain v. Nichols, 1 Brownl. 65.

(t) Norton v. Clarke, 1 Gwill. 428. (u) Per Lord Hardwicke, Ch., in Walton v. Tryon, Ambl. 132, 3.

(4)" All coppice woods are liable to tithes; and although non annuatim renovantur, yet, in a certain course of time after they are cut, they grow up again, like saffron, which in some places is not gathered oftener than once in three years: but as to timber trees, from the ordinary use of them, the law is otherwise: they are not cut at a certain stated time." Per Ld. Hardwicke, Ch., in Walton v. Tryon and others, Ambl. 131.

hend all timber trees, (of twenty years' growth or upwards,) whether timber by law, as oak, elm, or ash; or by custom, as beech in Buckinghamshire and other places (x); and the exemption from tithe, by operation of this statute, extends not to the body of such trees only, but also the bark (y), lop, and top (z). The subsequent use and application of the wood will not determine the right to tithes (5). Hence it has been resolved, that the tops and lops of pollard oaks, ashes, and elms, (such oaks, &c. being above twenty years' growth,) although cut for the purpose of being used as fuel, are not titheable (a); and further, that the age of the tops and lops is immaterial, the trees whence they were taken having been once privileged (b). In like manner (c), faggot-wood, and billets made of top-wood, cut from timber trees of above twenty years' growth, before they were made pollards, are not titheable. It is laid down in 2 Inst. 643, that if a person cut down timber trees, tithes shall not be paid for the germins which grow out of the roots, of what age soever, for the root is parcel of the inheritance. But this position is said by Lord Hardwicke, Ambl. 133, to have been contradicted, and for good reason; because a great part of coppices grow from germins of old timber trees, and it would deprive the clergy of great part of their tithes. And it was afterwards decided, that oak wood of more than twenty years' standing, growing not from acorns, but from old stools, which stools belonged originally to trees which had stood more than twenty years, was not so clearly and universally entitled to exemption by this statute, as to make a verdict (d) which subjects them to tithe necessarily a wrong verdict. And in Evans v. George and Rowe, 12 Price, 76, and M. & Y. 577; it was holden, that germins, or trees of more than twenty years' growth, which had grown from old stools of timber trees felled upwards of eighty years ago, were titheable. Per Alexander, C. B., Garrow, B., and Hullock, B.; Graham, B., dissentiente. But in a recent case in Chancery (e), in which all these authorities were reviewed, it was holden, that wood of the growth of twenty years or upwards, springing from the roots or stools of trees which have formerly been felled, are exempt from tithe; Lord Cottenham, C., observing, that, although he was very reluctant to alter what had been considered by many, and particularly by Alexander, C. B., in Evans v. Rowe, to be a rule of law, still he thought the interpretation which had been put upon the statute of Edw. III.

(5) But it seems that wood, applied to special purposes, may be exempted from tithes by special custom, but not otherwise.