1. Of the Nature of Tithes.

TITHES are a species of incorporeal hereditaments, and are defined to be “a tenth part of the increase yearly arising and renewing.” First, immediately from the soil; i. e. from the profits of the land. Secondly, mediately, i. e. from the increase of animals. Thirdly, by the labor and personal industry of man. The first species is usually called PREDIAL, as of corn, grass, hops and wood, including tithe for the agistment of cattle. The second, MIXED, as of wool, milk, pigs, &c. consisting of natural products, but matured and preserved in part by the care of man; and of these two sorts the tenth must be paid in gross: The third species, is usually termed, PERSONAL, as of manual occupations; trade, fisheries, and the like; and of these only the tenth part of the clear gains and profits is due. See 2 Bl. Com. 3.

Tithes are payable of common right of all things which annually increase, either spontaneously, or by the industry of the parishioner. 3. Com. Dig. 490.

Tithes are also divided into GREAT and SMALL. Great Tithes are chiefly corn, hay, and wood. Small Tithes are the predial tithes of other kinds, together with mixed and personal tithes.

Tithes by law are denominated great or small, according to the nature of the thing, and not from 120the mode of cultivation, or the quantity produced, or the use to which it is applied.

Thus the tithes of beans and pease whether sown in fields or gardens are great tithes, and do not fall under the denomination of tithes of gardens, technically called decima hortorum. 5 Bro. P. C. 586.

So potatoes are a small tithe, tho’ sown in great quantities. 3 Atk. 364. Com. Rep. 639.

When arable land is turned into pasture, it is an agistment tithe, and becomes a small one from a great one. id.

Predial great tithes are corn, grain, hay, clover grass when made into hay, wood, underwood and beans and pease.

Predial small tithes are flax, hemp, madder, hops, garden roots, and herbs, as potatoes, parsley, Cabbages, saffron; and the fruits of all kinds of trees, as apples, pears, acorns, &c. and all kinds of seeds.

Mixed tithes are natural products matured..

Personal tithes are only payable by special custom, and perhaps are paid no-where now in England, except for fish caught in the sea, and for corn mills.—3 Burn. Eccl. L. 473.

Great tithes generally belong to the Rector, and small tithes to the Vicar. Cro. Car. 20.

The Rector is prima facie intitled to ALL the Tithes of the parish, and nothing can be presumed in favor of the Vicar, without endowment or prescription. Yelv. 86. 1 Gwill. 226.

As a general rule, it may he observed, that tithe ought to be paid as soon as the tenth part can be severed from the whole, if there be no custom to the contrary; as, for corn and hay, as soon as made into shocks or cocks. 2 Gwill. 563.

A Freehold Lease of tithes cannot commence in futuro. Yelv. 131. 1 Gwill. 221.

A lease of tithes for all the time the lessor shall continue Vicar, is good, and passes a freehold. 4 Gwill. 1418.