stubbed, and afterwards bears corn or grass, is not barren. By waste ground is understood such ground as no man challenges as his own, or no man can tell to whom it certainly belongs, and which lies uninclosed and unbounded with hedge and ditch; but the ground which is inclosed and hedged and ditched in, and the land known, is not waste ground. By heath ground is to be understood, ground which is dispersed and lies as common. The fifth clause was designed for the advancement of tillage, and consequently, although the land yield some fruit, yet if it be barren land, quoad agricul turam, it is within this statute (e). On the other hand, if the land be not suapte naturâ sterilis, but is capable of producing a crop of corn, without extraordinary expense in the tillage, it is not protected by the statute. Such lands only are within this clause, as, over and above the necessary expense of inclosing and clearing, require also expense in manuring before they can be made proper for agriculture (9). In a case where it appeared (f) that the land had been marsh and sandy land, and covered with salt water; that from time immemorial no grass had been known to grow thereon, and no profit had been made of it, until the tenant, at a great expense, by the erection of banks and sea-walls, prevented the sea from overflowing the land, and thereby was enabled to convert it into arable land, which produced corn: it was holden, that this land was not protected by the statute; Coke, C. J., Dodderidge, and Haughton, Js., observing, that land was not barren which could bear corn without cost, as this did, and therefore tithes ought to be paid for it; and that the circumstance of the party having been at great costs in raising a mound to make this good land, by the exclusion of the sea, would not alter the case (10).

(e) 2 Inst. 656.

(f) Witt v. Buck, 3 Bulst. 165; 1 Roll. Rep. 354, S. C. See also Jones v. Le

David, 4 Gwm. 1336; and Byron v.
Lamb, 4 Gwm. 1594.

(9) Barren ground is such ground as will not bear corn of itself, without very great cost in the extraordinary manuring of it. Agreed per Cur., 3 Bulstr. 166. Barren inclosed, within the meaning of the stat. Edw. VI., must be such land as is barren suapte naturá, and not land upon which wood or the like grew before, which is afterwards burnt, and the lands converted into tillage. Per Powell, J., Lord Raym. 991. See also Horner v. Bonner, 6 Mod. 96.

(10) This case is alluded to by Lord Hardwicke, Ch., in Stockwell v. Terry, 1 Ves. 117. "There is an expense in gaining land from the sea, yet the seven years are not allowed *, though overflown time out of mind, because the benefit is lasting; but if an additional expense is necessary to make it produce the first crop, seven years shall be allowed."—"As to the case of land newly gained from the sea, if that determination can be supported at all, it must be by other reasons than those assigned in the book. If such land is not protected, it must be because it is not within the description in the statute; because it is neither barren, nor waste, nor

*See Sherington v. Flewood, Cro. Eliz. 475.

The rule of law for determining what is barren ground is, whether the land is of such nature as to require an extraordinary expense in manuring or tilling, to bring it into a proper state of cultivation (g), and not whether it is or is not in its own nature so fertile as after being ploughed and sown to produce of itself, without manuring or tillage, a crop worth more than the expense of ploughing, sowing, and reaping. Where upon an inclosure of barren lands, the defendant put in cattle on his land, but did no other act of improvement; it was holden (h), that the seven years only began to run from the first act of ploughing to render the land productive. It seems, the act is to be so construed, as to apply to such improvement as would make the land produce more corn or hay for tithe. Land which is of a good natural quality shall pay tithe immediately, although the expense attending the breaking it up and liming it exceeds the return made to the farmer in the several first years of cultivating it (i). The onus of proving that the land is barren lies on the

defendant (k).

Of the Persons to whom Tithes are due.

All tithes were originally rectorial and therefore primâ facie belong to and are due to the rector of the church of that parish wherein they arise. But the parson of one parish may claim by prescription a portion (11) of tithes in the parish of another (1). Extraparochial tithes belong to the king (m), who is a mixed person (n), and capable of tithes at the common law in pernancy (o). This right extends to all extra-parochial lands (p), and is not confined to such as are strictly speaking forests. Antecedently to the statutes for the dissolution of monasteries, spiritual persons only, or a mixed person, had capacity to take tithes mere laymen were incapable of them (q), except in special cases (r).

(g) Warwick v. Collins, 2 M. & S. 349; Lord Selsea v. Powell, 6 Taunt. 297, S. P. (h) Ross v. Smith, 1 B. & Ad. 907. (i) Warwick v. Collins, 5 M. & S. 166. (k) Agreed per Cur., in Lord Selsea v. Powell, 6 Taunt. 299.

(1) 14 Hen. IV. 17, a; 44 Ass. pl. 25; 1 Roll. Abr. 657.

(m) 22 Ass. pl. 75; 2 Inst. 647; 1 Roll. Abr. 657.

Since the statutes for the

(n) 10 Hen. VII. 18, a.

(o) 2 Rep. 44, a; Cro. Eliz. 512, per Cur., in Bannister v. Wright, Sty. Rep. 137.

(p) Attorney General v. Lord Eardley,

8 Pri. 53.

(9) Adm. in Doe v. Landaff, 2 Bos. & Pul. N. R. 508.

(r) Pigot v. Hearn, Cro. Eliz. 599, 785, cited in 2 Rep. 45, a.

heath ground, but from the moment of its existence as land, is fertile, enclosed, and capable of tillage, and, therefore, of a description which the statute cannot attach upon." Per Eyre, C. B.. in Jones v. Le David, 4 Gwm. 1338, 9.

(11) Portions are the remains of those arbitrary consecrations of tithes which took place before the settlement of the parochial right of tithes. The precise time at which the parochial right of tithes was settled cannot be ascertained; according to Sir Simon Degge, it was settled by a perpetual constitution early in the thirteenth century.

As

dissolution of monasteries (s), the tithes which were appropriated to the monasteries so dissolved, are become lay fee, and laymen are capable of them in pernancy, not quâ laymen, but as the derivatives of the ecclesiastical persons to whom they formerly belonged. laymen were incapable of having any tithes until the dissolution of the monasteries, there cannot be any ancient descent with respect to tithes. A rectory in Kent (t), formerly belonging to one of the dissolved monasteries, having been granted by Henry VIII. to a layman, to be holden in fee by knight's service in capite; it was adjudged, that although the lands were descendible according to the custom of gavelkind, yet the tithes must descend to the eldest son, according to the rules of descent at the common law. A parson shall not shall not pay tithe for his glebe to the vicar: for ecclesia decimas solvere ecclesiæ non debet (u). But if the parson lets his glebe for years (x), reserving a rent, the lessee shall pay him tithes. A rector is of common right entitled to all kinds of tithes; the vicar can claim against the rector, by endowment only, or prescription and usage, as evidence of endowment. Where there is not any written endowment (y), and the vicar has been in the perception of all the small tithes, the court will presume him entitled to all small tithes of modern introduction. Where an estate had been purchased free from rectorial tithe, with a right of common thereto annexed, and the common was afterwards inclosed under an act of parliament, and certain land was allotted to the owner of the estate in lieu of the right of common; it was holden, that tithe was not (z) payable in respect of the allotted land.

By whom and against whom an Action on the Statute may be

brought.

This action may be brought by the rector (a), or by one or more (b) farmers of the rectory. If the rector be entitled to two parts, and the vicar to a third part of the tithe, and the parson and vicar, by several leases, demise their respective shares to a third person, such lessee may maintain an action for not setting forth all the tithes (c). The right to tithes accrues immediately on the severance, consequently this action must be brought by the person entitled to the tithes at the time of severance; hence, where A. executed a lease of tithes to B. on a day subsequent to their severance, but before the tithes were carried away by the occupiers of the land, it was adjudged that B. could not maintain an action on this statute (d). The action can be brought by the party grieved only hence where this action was brought by the plaintiff for

A man being

himself and the queen, judgment was arrested (e). possessed of a lease of tithes in right of his wife, as executrix to her former husband (ƒ), grants "all his right, title, and interest" in the aforesaid tithes to A. B.: it was holden, that the grant was good, and that A. B. might maintain an action on this statute for not setting out tithes. If executrix of lessee for years of a rectory take husband, the husband and wife may join in an action on this statute (g). As the action on this statute is a personal action, tenants in common of tithe ought to join as plaintiffs (h); and if they do not join, advantage may be taken of it by plea in abatement but not in arrest of judgment (i). This action may be maintained by and against executors (k). Generally (1), the person entitled to the nine parts at the time of severance, ought to set forth the tithe; and if he fails in so doing, the owner of the tithe may sue him, although his interest in the land be determined before the tithes were carried away, provided he remain owner of the corn. If there be two joint-tenants (m), and one only enter and occupy, this action is maintainable against the joint-tenant, who occupied alone. So if there be two tenants in common (n), and one of them sets out his tithe, and the other carries it all away, the action shall be brought against that tenant in common alone who carried the whole tithe away. If a person buy corn, standing, of the proprietor of a rectory (o), he must pay tithe, unless he has special words in the contract to discharge him from payment of tithe; and the carrying away such corn, without setting out the tithe, will render him liable to an action on this statute.

Of the Declaration.

It is not necessary for the plaintiff to set forth his title specially; because it is but inducement to the action; it is sufficient for him to allege, generally, that he is rector, proprietor, or farmer, without showing by what title (p); for this is a personal action, grounded merely upon a contempt against the statute, in not setting forth the tithes, and not for the recovery of the tithes, although the title to the tithes may come in question. In an action by two farmers upon this statute, who claimed under a lease from a patentee for life of the king, an exception was taken, because they did not show the patent (q), but the objection was overruled-1st, because the letters

(e) Johns v. Carne, Moor. 911; Cro. Eliz. 621, S. C.

(f) Arnold v. Bidgood, Cro. Jac. 318, recognized by de Grey, C. J., in Thrustout v. Coppin, 3 Wils. 278.

(g) Beadles and Wife v. Sherman, Cro. Eliz. 613, judgment affirmed on error. (h) Greenwood's case, Clayt. 28. (i) Cole v. Banbery, 1 Sidf. 49. (k) Mr. J. Moreton's case, 1 Ventr. 30; 1 Sidf. 407; 2 Keb. 502, S. C.; 1 Sidf. 88. See also stat. 3 & 4 Will. IV. c. 42,

s. 2, ante, p. 800, 806.

(1) Kipping v. Swayn, Cro. Jac. 324. (m) Cole v. Wilkes, Hutt. 121. (n) Gerard's case, cited and said to have been adjudged, Hutt. 122.

(0) Moyle v. Ewer, Cro. Jac. 361. (p) Babington v. Matthews, Bulst. 228; 1 Brownl. 86, 7; Moyle v. Ewer, Cro. Jac. 362; Champernon v. Hill, Yelv. 63, S. P.

(a) Dagg and Kent v. Penkevon, Exch. Chr., Cro. Jac. 70.

patent did not belong to the plaintiffs; 2ndly, because the plaintiffs did not demand the tithes themselves, but damages for a tort; and the title shown in the declaration is only conveyance to the action. Plaintiff declared (r), that he was rector of A., and entitled to the tithes of certain lands, in the parish of A.. and the tithes of certain lands in the parish of B., without showing how he became entitled to the tithes of land out of his parish; after verdict, this was holden sufficient. So where plaintiff declared (s), that he was rector of D. and S., and that defendant, being occupier of lands in D. and S., carried off the corn untithed, without showing which part of the lands lay in D. and which in S. After verdict for plaintiff, on motion in arrest of judgment, the declaration was holden sufficient, for this action is in the nature of a trespass founded in a tort. So if the plaintiff declare (t), that he was seised in fee of a portion of tithes of corn growing upon such a grange, this will be sufficient. Neither is it necessary to specify the kinds of grain (u), or by whom sown, or the number of loads of corn (x) or hay carried away. The declaration must allege that the tithes had been paid or payable within forty years next before the passing of the statute; and this defect is not cured by verdict (y). It is sufficient for the plaintiff to state in his declaration the single value of the tithes (z), without adding the treble value; and where the treble value is set forth, a mistake in computing it will not vitiate. Where the severance was alleged to have been before the sowing (a), and exception taken on this ground, after verdict it was disallowed, because the allegation of the sowing was superfluous, and so aided by verdict. Regularly, the declaration, pursuing the words of the statute, ought to allege, that the defendant is, subditus domini regis; but to allege defendant to be occupator terræ, has been holden to be equivalent, for that implies that he is subditus (b). It is not necessary for the plaintiff to set forth the title of the defendant (c); alleging generally, that he was occupier, without showing how or what interest he had, will be sufficient. A count for treble value of tithes not set out, and also a count for the same tithes bargained and sold will not be allowed (d), under R. G. H. T. 4 Will. IV. Reg. 1, s. 5.

Pleadings, and herein of the Statutes of Limitation.

Nil debet is the general issue usually pleaded to this action (e), and notwithstanding the new rules is still a good plea; for the judges have not (by reason of the proviso in sect. 1, of 3 & 4 Will. IV. c.

Phillips v. Kettle, Hard. 173.

(s) Fellows v. Kingston, 2 Lev. 1. (t) Sanders v. Sandford, Cro. Jac. 437. (u) Bedell and Wife v. Sherman, 2 Inst. 650; 13 Rep. 47, S. C.

(x) 1 Brownl. 71.

(y) Butt v. Howard, 4 B. & A. 655.
(z) Coke v. Smith, H. 7 Car. I., B. R.

(a) Pellett v. Henworth, Degge, 395, 6th ed.

(b) Phillips v. Kettle, Hardr. 173.
(e) March, 21, pl. 49.

(d) Lawrence v. Stephens, 3 Dowl. P. C. 777.

(e) Bawtrey v. Isted, Hob. 218.