a different parish, shall not pay agistment-tithe; otherwise, if habitually so used.—35 Geo. 3. Scacc. Filewood v. Button. ii. 416 77. Sheep kept principally for the sake of folding, if sold out of the parish before shearing time, shall pay agistment-tithe.-35 Geo. 3. Scacc. Howes v. Carter. ii. 416 78. Agistment is a prædial tithe.-36 Geo. 3. Scacc. Scarr v. Trinity College, Cambridge. ii. 429 79. The agistment of sheep is not included under the general description of agistment of barren and unprofitable cattle; and where a bill, therefore, claimed tithes of barren and unprofitable cattle, not expressly stating sheep, the court thought the defendant misled by the looseness of the demand, and refused to direct an account of the agistment of sheep, though the plaintiff proved that sheep had been agisted.-37 Geo. 3. Scacc. Turner v. Williams. ii. 436 80. A vicar founding his claim to agistmenttithe by showing, that he alone had taken the other small tithes, was holden to have made out his title to that tithe, although the same had never till of late been received or demanded by him or his predecessors, and although in ancient times the crown had conveyed by grant to lay impropriators, tithes not only of grain and hay, but of herbage (decimas feni et herbagi). 81. Herbage does not ex vi termini mean a cover tithe of agistment, unless perception be proved.-56 Geo. 3. Byam v. Booth. iii. 716 82. Agistment-tithe is not payable for afterpasture, where the lands have been mown in the same year, and tithe of hay has been paid. -58 Geo. 3. Canc. Batchellor v. Smallcombe. iii. 909 83. A title to tithe-hay does not confer a title to agistment-tithe.--5 Geo. 4. Scacc. Lewis v. Young, Bart. iii. 1135 AGREEMENT.-See COMPOSITION-LEASE -TITHES HOW PASSED. 1. An agreement between the parson and any of his parishioners is good cause for prohibition, for the spiritual court will not allow the plea.-31 El. B. R. Gomersal v. Bishop. i. 97 2. The farmer of a rectory, in consideration that a plaintiff promised and agreed to pay to him ten pounds per annum, during a term, for his titles, promised that the plaintiff should hold his said land without tithes, and without any suit for the same, by GAWDY. The same is a good discharge of the tithes for a time, and a good composition to have a prohibition upon, and it is not like a covenant.-31 El. B. R. Chapman v. Hurst. i. 98 3. An agreement to be discharged from tithes, may be for a year by parol, and shall be good: but to have such an agreement during the parson's life, or for years, cannot be without deed. --4 Jac. B. R. Hawkes v. Brayfield. i. 165. 4. If a parson contract with me by word, for keeping back my own tithes for three or four years; this is a good bargian by way of retainer; and if he sue me for my tithes in the ecclesiastical court, I shall have a prohibition upon this composition. But if he grant to me the tithes of another, though it be but for a year, this is not good, unless it be by deed.8 Jac. B. R. Anon. i. 198 5. An agreement that one shall retain his tithes, made after the corn sown, and for the same year, is good; but not if made before the corn is sown, or for more years than one; and all the court agreed that such an agreement for the tithes of another was void.-8 Jac. C. B. Anon. i. 198 6. A parol agreement to pay 2s. 6d. in the pound rent for tithes, will not bind the parson, but it will excuse the parishioners from the penalties and damages given by 2 E. 6. and from costs till notice given of his dissent from the agreement; and notice given after payment due is too late and so it is if given after the lands are manured and sowed; because, perhaps, if notice had been given before, they would not have been at so great a charge upon them, or not have sown them at all.-13 Car. 2. Scacc. Breamer v. Thornton. : i. 436 7. The court inclined to grant a prohibition on a parol agreement to retain, having been several years paid, but being an unsettled point, it was adjourned; but agreed that on nil debet such agreement is a good mitigation of damages; also if the execution of the agreement by several years payment be suggested, a prohibition ought to go.-24 Car. 2. B. R. Knight and others v. Peepes. i. 495 8. By BURY and PRICE. A composition by way of retainer of tithes by parol for one year, is good, but not by way of lease. MOUNTAGUE thought that an agreement between parson and parishioner would be good by parol for years, though not for life.-1 Geo. Scacc. Keddington v. Bridgeman. i. 709 9. A parol agreement with a parishioner to retain his tithes for three years, is good.—S. C. ib. passed by usage to the vicar, by the words alteragia et minuta decima, and so it was adjudged in the court of exchequer. The judges all agreed in this, that by these words, alteragia et minutæ decima, by usage, tithe-wood may well pass, and so has the opinion of all the civilians been. 2. Tithes of wool and lamb may pass under the words alterage and small tithes, (where the usage was shewn in evidence.)-16 Jac. B. R. Britton v. Ward. i. 298 suit was instituted in this court, to which the ordinary (but not the patron, who was the king) was made a party, and the parishioners agreeing to increase the stipend, a decree was made by consent ratify the articles: held that this agreement, though acquiesced under for 80 years (40 of which, however, the rector against-10 Jac. B. R. Reynoulds v. Green. i. 213 whom the decree was made, had remained incumbent), was not binding as to the pecuniary composition, the patron not having been a party, and the composition having been made only with regard to the past, and not to the 3. Alteragium shall be expounded according future increasing value of the tithes.-5 Geo. to the usage.--4 Car. C. B. Wood v. Green3. Canc. Att.-Gen. v. Cholmley. ii. 203 wood. i. 368 12. An agreement between a rector and his 4. Where alteragium has by usage been exparishioners for an allotment of land in lieu of tended to small tithes, it will include them, tithes, though confirmed by a decree in Chan-otherwise not.-7 Geo. Scacc. Franklyn and cery, is not binding on a succeeding incum- others v. Master and Brethren of St. Cross. bent.-20 Geo. 3. Scacc. Jones v. Snow. iii. 1291 13. On an agreement to pay a certain sum yearly for tithes, without any precise time of payment being fixed, no interest is payable on arrears.-43 Geo. 3. B. R. N. Pr. Shipley v. Hammond. ii. 507 14. If the bargainee of tithes for one year underlet them to the several occupiers of the land, no notice to determine the underletting needs to be given by another bargainee of the same tithes for the following year.—50 Geo. 3. C. B. Cor v. Brain. ii. 582 15. Where a house, lands, and tithes, are held under a parol demise at a joint rent, a notice to quit the house, lands, and premises, with the appurtenances," includes the tithes, and is sufficient to put an end to the tenancy. 16. Semble, that although tithes are let by parol the tenant is entitled to a notice to quit. Doe dem. Morgan v. ii. 649 -51 Geo. 3. N. P. Church. i. 768 5. The precise meaning of the word "alteragium" is now unknown, and what is included under it can only be explained by usage.-57 Geo. 3. Scacc. Williams v. Price. iii. 828 ANNUITY.-See JURISDICTION. 1. Where, upon dispute to whom certain tithes belonged, it was settled, that one should take the tithes, paying an annuity to the other, it was held that the annuity might be recovered in the temporal court, it being founded on a lay contract, and the tithes not in plea.-7 Edw. 2. The Abbot of Aungers v. The Prior of Norton. i. 7 APPEAL. dissolved abbey, was granted by the crown, the 1. The tithe of a rectory which belonged to a parson files his bill against the occupiers, bill dismissed, but in respect of his being a pauper, without costs. He afterwards appealed, and in consequence of its frivolous nature, by an order of the House of Lords, on the 3d of March, 1697, it was ordered, "That no per 66 son whatsoever do presume, as counsel, to "sign any appeal, to be brought into this "House for the future, unless such person hath "been of counsel in the same cause, in the "courts below, or shall attend as counsel at "the bar of this House, when the said appeal "shall come on to be heard. And it is fur"ther ordered, that this order shall be added "to the roll of standing orders, and affixed on "the doors of this House, and of the courts in "Westminster Hall."-1 Geo. Dom. Proc. Turner V. Smith. i. 712 APPLES. 1. In a suit for tithes of apples, defendants said they were stolen and never came to his use; it was held, that if a man suffered an other to pull his apples, the parson should have tithes ; but if they were taken by persons not known, he should not have tithes. (According to Yelverton) they are not titheable before plucking, but if they are suffered by negligence to hang so long that they are embezzled, tithes shall be paid.-4 Car. C. B. Anon. i. 366 2. Tithes are due of apples fallen as well as other apples.-8 W. 3. Scacc. Harding v. Golding. i. 618 3. An account of such apples as fall from the trees ordered.-2 Ann. Scace. Lister v. Foy. i. 654 APPROPRIATION.-See IMPROPRIATION. 1. In every license henceforth to be made in the chancery, of the appropriation of any parish church, it shall be expressly contained and comprised, that the diocesan of the place, in the appropriation of such churches, shall ordain, according to the value of such churches, a convenient sum of money to be paid and distributed yearly of the fruits and profits of the same churches by those that shall have the said churches in proper use, and by their successors, to the poor parishioners of the said churches, in aid of their living and sustenance for ever; and also that the vicar be well and sufficiently endowed.-15 Ric. 2. c. 6. iv. 13 2. The right of patronage must be in succession before an appropriation can be made, and the question of appropriation shall be tried in the spiritual court.-38 Hen. 6. i. 39 3. The stat. of 15 Ric. 2. c. 6. confirmed, and if any church be appropriated by license of the said King Richard, or of our Lord the King that now is, since the said fifteenth year, against the form of the said statute, the same shall be duly reformed according to the effect of the said statute, betwixt this and the feast of Easter next coming. And if such reformation be not made within the time aforesaid, that the appropriation and license thereof made be void, and utterly repealed and annulled for ever, except the church of Haddenham, in the diocese of Ely.-2 Hen. 4. c. 12. iv. 16 4. All appropriations of vicarages since the first year of King Ric. 2. shall be void. ib. ib. 5. Form of appropriation.-Hen. 6. iv. 19 6. Complaint of the Commous respecting the abuses of appropriation.-10 Hen. 6. iv. 20 7. Appropriations, how and when to be made.--Grendon v. the Bishop of Lincoln. i. 67 9. Appropriation shall be tried at common law. 13 Jac. B. R. Owen v. All Saints in Northampton. i. 248 10. Whether an appropriation since 25 H. 8. of a rectory to a lay corporation be good. 11. Whether an appropriation in default of the endowment of a vicar be good.-8 Car. B. R. Alden v. Tothill. iii. 1213 12. There ought to be the King's license to make an appropriation of a church, and to endow a vicar; and the King cannot make such a license without matter of record, and it ought to be with a condition to endow a vicar, which endowment may be by a distinct instrument, so that it be made at the same time as the appropriation.-1649. B. S. Cave v. Osby. i. 405 13. Where a rectory was granted by the crown in 1547, with license to appropriate on condition of endowing a vicar, and the vicarage had continued endowed through all time subsequent; but the instrument of endowment produced did not pursue the terms of the grant, and the specific benefits actually enjoyed by the vicar did not appear; the court presumed a second deed in conformity with the conditions of the coriginal license, and that it had been lost by tine, or accident.-5 Geo. 4. Scacc. Wolley v. Brownhill. iii. 1152 ASP.-See WOOD. ASSART. 1. Semble, that the words de novo assartatis et assartandis, in the grant of Ed. 1. should be confined to such lands only as were at that time assarted or were intended shortly to be so. -5 Geo. 2. Scacc. Bond v. Burrow. ii. 32 2. An assart is, where persons having lands within a forest could not pluck up timber by the roots without an application to the crown ad quod damnum; and if it was returned that there was no damage, a license was given to assart.-38 Geo. 3. Scacc. Parry v. Harvey. iii. 1376 ASSUMPSIT, ACTION OF. 1. If tithes be leased by deed, debt lies for the rent; but if without deed assumpsit, it being only a reciprocal and executory contract. -6 Car. B. R. Walrish v. Cropton. i. 373 2. Action upon special promise for tithes for six years, held good upon motion in arrest of judgment; though such agreement be not a good lease, nor does any interest pass thereby in the tithes.-35 Car. 2. B. R. Eaton v. Sherwin. i..54k 3. Quare, whether an action will lie upon a promise, that if the plaintiff would plant his 2. Augmentations made by archbishops, bishops, deans, and chapters, &c. shall continue during the estate upon which they are reserved, and for ever afterwards. § 2. 3. No future augmentation confirmed, which shall exceed one moiety of the value of the rectory, out of which the same shall be granted or reserved. § 3. 4. Augmentation leases to be fairly entered in books of parchment, to be kept by their respective registers for that purpose; which entry, duly attested, shall be as a record; and a true copy thereof shall be good evidence to recover upon. § 4. 5. New leases without express continuance of the augmentations to be void. § 8. 6. An Act for the making more effectual her majesty's gracious intentions for the augmentation of the maintenance of the poor clergy, by enabling her majesty to grant in perpetuity the revenues of the first fruits and tenths; and also for enabling any other persons to make grants for the same purpose.-2 & 3 Ann. c. 11. iv. 194 7. Enlarged.-6 Ann. c. 27. iv. 202 8. An Act for discharging small livings from their first fruits and tenths.-5 Ann. c. 24. iv. 201 9. Ecclesiastical benefices not exceeding 501. per annum discharged from payment of first fruits, &c. for ever. § 1. 10. Bishops, &c. to certify into the Exchequer the clear yearly value of small benefices, with cure of souls within their dioceses, &c. § 2. 11. An Act to make more effectual her late majesty's gracious intentions for augmenting the maintenance of the poor clergy.-1 Geo. stat. 2. c. 10. iv. 206 12. The bishops shall inform themselves of the yearly value of every benefice, &c. and certify the same to the governors of Queen Anne's bounty. 13. Certificates returned into the Exchequer under preceding acts shall ascertain the value of livings not exceeding 50l. per ann. § 2. 14. Augmentations, &c. to be entered, and the entries to be taken as records, and copies admitted in evidence § 19. 15. An Act for the better collecting and levying the revenue of the tenths of the clergy.-3 Geo. c. 10. iv. 212 16. An Act for making certain regulations respecting the admission of persons to cures augmented by Queen Anne's bounty, with respect to the avoidance of other benefices.-36 Geo. 3. c. 83. iv. 230 17. An Act for effectuating certain parts of an Act, passed in the second and third years of the reign of her late majesty Queen Anne, intituled, "An Act for the making more effectual her majesty's gracious intentions for the augmentation of the maintenance of the poor clergy, by enabling her majesty to grant in perpetuity the revenues of the first-fruits and tenths, and also for enabling any other persons to make grants for the same purpose," so far as the same relate to deeds and wills made for granting and bequeathing lands, tenements, hereditaments, goods, and chattels, to the governors of the bounty of Queen Anne, for the purposes in the said Act mentioned, and for enlarging the powers of the said governors.-43 Geo. 3. c. 107. iv. 249 18.2 & 3 Anne, c. 11. s. 4. by which persons were empowered to grant estates, &c. in their own right to the governors of the bounty of Queen Anne, towards the augmentation of the maintenance of the clergy, shall remain in force notwithstanding mortmain act, 9 Geo. 2. c. 36. Power of exchanging lands, &c. under 1 Geo. 1. c. 10. s. 13. extended to all the lands, &c. of augmented livings. 19. Where there is no suitable parsonagehouse, the governors may provide one. ib. 20. An Act for making more effectual the gracious intentions of her late majesty Queen Anne, for the augmentation of the maintenance of the poor clergy, so far as relates to the returns of certificates into the Exchequer, and gifts of personal property.-45 G. 3. c. 84. iv. 254 21. Bishops, &c. shall inquire into value of benefices returned into the Exchequer, and certify the same to the governors of Queen Anne's bounty, who shall be empowered to act upon such new certificate as they are now enabled to do with respect to livings not returned into the Exchequer. BARREN CATTLE.-See CATTLE.AGISTMENT. BARREN LAND. 1. On a prohibition to a suit for tithes of wheat, the land being suggested to be lately improved, was proved so, but that tithes of wool and lambs had been always paid for it; though by the statute the same tithes continue payable for seven years, the parson cannot have a consultation, for he has not sued for tithes of these. -1 & 2 El. Pelles v. Saunderson. i. 57 2. All such barren heath or waste ground, other than such as be discharged for the payment of tithes by act of parliament, which before this time have lain barren, and paid no tithes by reason of the same barrenness, and now be, or hereafter shall be improved and converted into arable ground or meadow, shall from henceforth, after the end and term of seven years next after such improvement fully ended and determined, pay tithe for the corn and hay growing upon the same; any thing in this act to the contrary in anywise notwithstanding. 3. Provided always, and be it enacted by the authority aforesaid, that if any such barren, waste or heath ground, has before this time been charged with the payment of any tithes, and that the same be hereafter improved or converted into arable ground or meadow; that then the owner or owners thereof, shall during the seven years next following, from and after the same improvement, pay such kind of tithe as was paid for the same before the said improvement; any thing in this act to the contrary in anywise notwithstanding.-2 & 3 Edw. 6. c. 13. ss. 5. 6. iv. 87 4. Barren land by the common law is that whereof no profit arises; and ground that has been stubbed, and after bears corn or grass, is not barren. Waste ground is such as no man can tell to whom it certainly belongs, and lies uninclosed and unbounded with hedge and ditch; but that which is inclosed and hedged and ditched, and the lord known, is not waste ground. Heath ground is understood to be that which is dispersed, and lies as common.21 & 22 El. Tanner v. Kirkham. i. 81 8. Wood ground is not barren ground within 2 E. 6. for if one stub up the wood, and convert it into arable with great cost and labour, yet he shall pay tithes for it presently.-14 Jac. B. R. Witt v. Buck. i. 254 9. If land were mere waste and yielded nothing, no tithe shall be paid for seven years; but if sheep were kept upon it, or it yielded any titheable profit, that tithe ought to be paid. -5 Car. C. B. Flower v. Vaughan. i. 370 10. The trial whether land be barren or not must be at common law.-13 Car. 2. B. R. Anon. i. 435 11. Upon an issue at law the jury found that the lands in question, which had been recovered from the sea, were not naturally barren, and that they were not comprehended within the stat. 2 E. 6.-20 Car. 2. Scacc. Gawden v. Gilbert. i. 476 12. Derelict lands reclaimed from the sea, and rendered arable, are subject to pay tithes. 2 W. & M. Scacc. Alcock v. Hilyard and Le Grand. i. 563 13. Wood land converted into tillage is not barren within 2 E. 6., but only such land as before produced no benefit to the owner.-9 W. 3. Scacc. Anon. i. 625 14. Barren land to be exempted by the statute, must be such as is barren suapte naturá, and not land upon which wood or the like grew before, which is afterwards burnt, and the land tilled.-2 Ann. C. B. Anon. i. 654 15. If land yield any profit before, as wood, &c. it is not within the stat. as barren land, which ought to be suapte naturâ sterilis; and no prohibition will in such case be granted, unless there be an affidavit that it was pleaded below.-2 Ann. B. R. Horner v. Bonner. i. 657 16. Embanked lands are not exempt from tithes for seven years under 2 E. 6. c. 13. sect. 5. as barren.-7 Geo. Scacc. Hankin v. Foi. 772 17. Wood ground grubbed up is not exempted for seven years as barren land, within the stat. Ed. 6. as it yielded profit before.-10 Geo. Scacc. Beardmore v. Gilbert. i. 794 5. Fen grounds drained are not barren land within the 2 E. 6. 38 El. B. R. Anon. i. 118|theringham. 6. Lands drained, although overflown for time whereof, &c. or grubbed, shall pay tithes presently; for it is sterile but by negligence, and not such as is merely barren, and only made good by foldage, or other industrious means, which alone is within the 2 Ed. 6. c. 13.38 El. B. R. Sherington v. Fleetwood. 18. Heath land converted at considerable expense into meadow and arable land, held not i. 132 to be barren land within the statute 2 & 3 Ed. 6. 7. Barren land, by the statute 2 E. 6. is such-5 G. 2. Scacc. Doyley v. Hornby. ii. 32 ground as will not bear corn of itself, without very great costs in the extraordinary manuring of it; but if the same will bear corn without any great labour and manuring (but only with charge in regaining it from being overflown), it shall pay tithes presently, for it ought to be suapte naturá barren, or it shall not be within this statute and the clause of discharge; for if one gain land from the sea, which afterwards bears good corn, of this he shall pay tithes. 19. The rule by which the court decides whether land be barren within the statute 2 Ed. 6. c. 13. is, if land is in its own nature so barren as not to be proper for agriculture after it is improved, it shall not pay tithe: but if, in its own nature, it is fit for tillage, but by reason of wood, or other accidental circumstance, it was not turned into tillage before, on taking away that accidental circumstance, it shall pay tithes immediately on being turned to tillage; |