Not before

the crop is

cut.

Parson may not set it

out.

Yet he may see it set

out.

from absolute necessity, as it gave so much trouble to the clergyman. Court held, that a farmer may cut down a field in any portions most convenient to himself, provided he set out the tithe of all cut down at any one time, before any part of it is carried away, and provided it be not done vexatiously. 4 Gwill. 1460. (7) 2. If the owner will not cut his crop before it be spoiled, the parson is without remedy. God. 394.

3. The parson, vicar, impropriator, or farmer, cannot come himself and set forth his tithes, without the licence and consent of the owner; for if he shall of his own head tithe the corn or hay of any landholder within his parish, and carry it away, he is a trespasser, and an action will lie against him for it. Deg. p.2. c. 14. [Grom 562. Anon. 2 Show. R. 184.]

4. But every person is bound of common right, to cut down,. and set out the tithes of his own lands. And that it may be done faithfully and without fraud, the laws of the church intitle the parson to have notice given him; but by the declaration of the common law, such notice is not necessary. (8) Yet nevertheless, the common law declareth a custom of tithing without view to be an absurd custom (x): And by the statute of 2 & 3 Ed. 6. c. 13. [523][§2.] it is enacted, that at all times whensoever, and as often as any prædial tithes shall be due at the tithing of the same, it shall be lawful to every party to whom any of the said tithes ought to be paid, or his deputy or servant, to view and see their said

(7) 3 Anstr. 915. S. C.; and see Erskine v. Ruffle, Gwm. 961. A reasonable quantity must be cut down before tithing, ib.; and in general all the produce so cut down in a field should be tithed before any part of it is carried away; and this was so held in one extreme case, where the uncertainty of the weather prevented it from being put in shock at all, and it was cut and carried in small quantities, throwing out the tenth sheaf. Franklyn v. Goch, 3 Anstr. R. 682, 683. Gwm. 1441. But where there is nothing like fraud or vexation, and in cases of necessity, as from variable weather or partial ripeness, this rule may be dispensed with. Nor is an occupier obliged to tithe the whole of that part of a field which lies in one parish before he proceeds to tithe any part of the same field lying in another parish; and where a farmer in doubtful weather carried from a part of a field which was tithed in one parish the day before the rest of the field in that parish was tithed, this being done bona fide was held lawful, Leathes v. Levinson, 12 East, 239.

(8) Gale v. Ewer (1696), 1 Com. R. 23. 12 Mod. 117.

(x) Being absque visu et tactu. 6 Com. Dig. 303. See Boughton v. Wright, Bunb. 186. In Erskine v. Ruffle, [Gwm. 961.] 5 Bac. Ab. 74 & 75., the court of exchequer held, contrary to a former opinion, that it is not necessary to cut down all the corn growing in a field before the tithe of any part can be set out, but that the tithe may be set out as often as a reasonable quantity is cut down. And that unless there be a custom of the parish to set out the tithe of barley in some other manner, it must be gathered into cocks, and every tenth cock set out for tithes.

tithes to be justly and truly set forth and severed from the nine parts. [The tithe owner should therefore have an opportunity of seeing them separated from the other nine parts, so as to be able to compare the one with the other (y); and to judge whether or not the tithes are fairly set out (9): and this though the tithe is fairly set out, if the rest is immediately carried away. (1) He may do this without previous notice of the time of the severance. But a custom of giving notice of setting out tithes is good; and where it prevails, is the law of the land in that parish. (2) It must afford reasonable time, so as to give the rector a sufficient opportunity of taking a view. (3) Thus in Tennant v. Stubbin (4) an hour's notice was held not to be reasonable; for in the middle of summer the tithe owner may be engaged in tithing other fields or farms perhaps at the extremity of the parish. Reasonableness of notice must depend on distance and other circumstances; and though a notice for a time when the corn is not ready is void, yet the variation must be material, and not merely a small delay, which will occur in all business. (5)]

out.]

E. 6 G. 3. Butter and Heathby. An action upon the case was [Notice of brought against the defendant, for not fetching away his tithes in setting a reasonable time. (z) The declaration states, that the plaintiff set out the tithes, and the defendant refused to fetch them away. At the trial the defendant's counsel insisted on a custom in the parish, that notice should be given to the owner of the tithes of the setting them out. The judge who tried the cause held the custom not to be a good one; and a verdict was found for the plaintiff, subject to the opinion of the court of king's bench, upon the following question, viz. whether the custom be good in law or not. A motion had been made for a new trial and a rule to shew cause. The counsel for the plaintiff denied this to be a good custom; because it was only setting up the

(y) [Wilson v. Bp. of Carlisle, Hob. R. 107. Shallcross v. Jowle, 13 East. R.261.] Tennant v. Stubbin, in Exchequer, M. 1795. [3 Anstr. 640. Gum. 1441.] The defendants insisted on a customary mode of tithing wheat, the tithes being never set out till the corn was about to be carried, and then every tenth sheaf, as it came to the fork, to be thrown aside for the rector: notice of the intention to carry was to be given to him, and he might, if he disliked the tenth sheaf, take the eleventh in its stead. The custom was held bad; for the rector has a right in all cases to see the tithes set out, that he may compare them with the nine parts.

(9) Boughton v. Wright, Bunb. R. 186. Thomas v. Rees, Gwm. 796. (1) Heale v. Sprat, 2 Inst. 649.

(2) Heliar v. Trist, 3 Wood's D. 128.

(3) Filewood v. Marsh, 1 Hagg. Rep. 478.

(4) 3 Anstr. R. 640. Gwm. 1441.

(5) Filewood v. Marsh.

(z) Vid. infra, 9.

[ 524 ]

Must take care of it, after it is set out.

custom.

ecclesiastical law against the common law of the kingdom, which cannot be done by custom in any particular district. By Mr. Justice Wilmot: By the common law no notice is necessary. By the ecclesiastical law it is necessary. The question therefore is, whether the ecclesiastical law can be introduced under the notion of such a custom.-This was agreed to be the question.— The plaintiff's counsel objected, that this custom is not a reasonable or good one; because it is not founded upon any consideration. The farmer can receive no benefit by giving such notice: on the contrary, he may be much incommoded by being bound down to set them out at the particular time notified. Indeed, notice to the owner of the tithes, or of their having been set out, is previously necessary to the bringing an action for not carrying them away: And this notice was given.-The counsel for the defendant, who argued in support of the rule for a new trial, admitted that the common law doth not require the notice of setting them out: But this custom does require it; and they insisted that it is a good custom. The consideration of customs cannot be enquired into: However, if it were necessary to do so, honesty and piety are sufficient considerations for this But customs must be presumed to have sprung from good considerations. This custom prevails in half the parishes in the west of England. And as tithes depend in a great measure upon custom, so also does the manner of setting them out. In a cause at Nisi Prius, in the case of one Yarborough, at Lincoln assizes, lord chief justice Willes held such a custom to be good, and said he wished it were the law of the land. After having taken time to consider of it, lord Mansfield delivered the opinion of the court: The only question is, whether this be a reasonable custom or not. There is no authority that comes up to this point but one; and that was a cause on the midland circuit before lord chief justice Willes, who thought it a reasonable custom. I think so too. I believe the doubt about it arose from a jealousy of receiving the ecclesiastical law in any case whatever, lest the clergy should introduce it by degrees. It is reasonable, as promotive of justice, and preventive of fraud. Mr. Dunning said, as of his own knowledge, that there were such customs in the west of England: and I am told there are such in Lincolnshire. We are all clear, that it is a good custom. It is for the prevention of fraud, and for the convenience of the parties. Therefore the rule must be made absolute for a new trial. 3 Burr. 1891. (6)

5. The care of the tithes, as to waste or spoiling, after severance, rests upon the parson, and not upon the owner of the land. For

(6) See Spencer's case, Noy's R. 19. Anon. 2 Ventr. 48.

Gale v. Ewer, 1 Com. R. 23.

it seemeth that the parson, is at his peril to take notice of the tithes being set out; and so it hath been declared, that although the parishioner ought de jure to reap the corn, yet he is not bound to guard the tithes of the parson. Gibs. 689.

And the right to the tithes vests in the parson immediately on severance, so that if he execute a lease of them on a day subsequent to their severance, but previous to their being carried away by the land-holder, the lessee cannot maintain an action for them.

6. But after the tithes are set forth, he may of common right come [525] himself, or his servants, and spread abroad, dry, and stack his May spread corn, and dry it hay, or the like, in any convenient place or places upon the ground upon the where the same grew, till it be sufficiently weathered and fit to ground. be carried into the barn. But he must not take a longer time for the doing thereof, than what is convenient and necessary; and what shall be deemed a convenient and necessary time, the law doth not nor can define; for the quantity of the corn or hay, and the weather, in this case are to be considered; and what shall in this, and all other cases of like nature be said to be a reasonable and convenient time, is to be determined by the jury, if the point come in issue triable by a jury; but if it come to be determined upon a demurrer, or other matter of law, the judges of the court where the cause depends are to resolve the same. Deg. p. 2. c. 14. Str. 245. (8)

66

it away.

7. And it shall be lawful quietly to take and carry the same And carry away. And [by stat. 2 & 3 Ed. 6. c. 13. §. 2.] “ if any person carry away his corn or hay, or his other prædial tithes, before "the tithe thereof be set forth; or willingly withdraw his tithes of "the same, or of such other things whereof prædial tithes ought "to be paid; and if any person do stop or let the parson, vicar, "proprietor, owner, or other their deputies or farmers, to view, "take, and carry away their tithes as is abovesaid; he shall for"feit double value, with costs; to be recovered in the ecclesias"tical court." [According to the ecclesiastical laws.]

And he may carry his tithes from the ground where they grew, either by the common way, or any such way as the owner of the land useth to carry away his nine parts. But if there are more ways than one, and the question is, which is the right way; this is cognizable in the temporal court. Deg. p. 2. c. 14

[In the case of Cobb v. Selby, it was held, that the parson is not entitled to carry his tithes home by every road which the farmer himself uses for the occupation of his farm; but, semble,

he

may

(7) And see Welch v. Uphill, 1 B. & B. Rep. 84. 3 B. Moore, R

330. Wyburd v. Tuck, 1 Bos. & Pul. 458. (7)

(8) South v. Jones, 1 Roll. Ab. 643. See infra, 9.

But must

only use that road which the farmer uses for the occupation of the field in which the tithe grows (9)]

And if the owner of the soil, after he hath duly set forth his tithes, will stop up the ways, and not suffer the parson to carry away his tithes, or to spread, dry, and stack them upon the land; this is no good setting forth of his tithes without fraud within the statute: but the parson may have an action upon the said statute, and may recover the treble value; or may have an action upon the case for such disturbance, as it seemeth; or he may, if he will, break open the gate or fence which hinders him, and carry away his tithes. Deg. p. 2. c. 14. (1)

8. But in this he must be cautious that he commit no riot, not do wil nor break any gate, rails, lock, or hedges, more than necessarily he must for his passage. Deg. p. 2. c. 14. (2)

ful da

mage.

[526]

Penalty on

not carry

ing it away.

And when he comes with his carts, teams, or other carriages, to carry away his tithes ; he must not suffer his horses or oxen to to eat and depasture the grass growing in the grounds where the tithes arise, much less the corn there growing or cut: but if his cattle (as cannot be avoided) do in their passage against the will of the drivers, here and there snatch some of the grass, this is excusable. Deg. p. 2. c. 14.

9. It seems, that if tithes set forth remain too long upon the land, the owner of the soil may take them damage feasant (3);

(9) 2 New. R. 469. 6 Esp. C. N. P. 103. Again, he may not pass through a private road on another's land, though that may be nearest for conveying his tithes. If lands formerly in one occupation become occupied by several, the right to use what was the road before there was a separation will not necessarily continue after it; for the tithe owner can only use for each occupier's tithe the road the occupier uses. Bosworth v. Limbirch, Gwm. 1109. In collecting tithes he need not urload his waggon before driving it on the ground of each parishioner. Lake v. Bruton, Gwm. 775.

(1) A rector is not "let or stopped" within 2 & 3 Ed. 6. c. 13. § 2. in carrying away his tithes by the parishioner's stopping up an old gateway, for his own convenience, before the tithes were set out, and opening another, by which he carried away his crops; nor by resistance to his pulling down the fence in asserting a right to the old way; no vexatious intention being proved. Burnell v. Jenkins, 2 Phill. Rep. 391. Degge, p. 2. c. 14. Where there is a private road through a farm used by the owner for agricultural and other purposes, the parson may use it for carrying away his tithe, though there is a public road, nearly equally convenient, and the farmer does not on that particular occasion use the private road himself. Cobb, clerk. v. Selby, 6 Esp. N. P. C. 103. Macdonald C. B. Maidstone, 1806. (2) Hampton v. Courtney, 1 Bulst. R. 108.

(3) Doubted by Wood B. in Baker v. Leathes, Wightw. R. 113.;

and see Godolph. R. 362.