which case, as in all other like cases, the custom of the place is to be observed. Deg. p. 2. c. 6. God. 392. (8)

thereof by

3. And by a constitution of archbishop Winchelsea; the tithe Payment of milk shall be paid, from the time of its first renewing, as well in the month of August as in other months. Lind. 199.

Upon what pretence the people pleaded exemption from paying tithe of milk in August, Lindwood doth not inform us: probably it was, because this was the principal harvest month; and they thought it too much to pay tithe of milk while they were paying tithe for corn, and fed their harvest people with the milk. Johns. Winch.

Lindwood explains the milk here spoken of, to signify either that of cows, or sheep, or goats, or other cattle which are milked. Lind. 200.

But the tithe of milk of ewes seemeth only to be due by custom: for a man may prescribe that by the custom of the country were he is sued for tithes of the milk of ewes, no tithes of the milk of ewes have been paid for time whereof the memory is not to the contrary; and in such case a prohibition will be granted. 1 Roll's Abr. 654.

of man

canon.

4. By a constitution of archbishop Winchelsea; the tithe of Different the milk and cheese of cows and goats shall be paid where they parishes. feed and couch. Otherwise, if they couch in one parish, and [ 508 ] feed in another, the tithe shall be divided between the rectors.

Lind. 199.

But it may be doubted perhaps, as the law seemeth now to stand, whether they shall not pay tithe in kind only in the parish where they are milked (9), and an agistment tithe in the other parish. (9)

M. 8 W. Scoles and Lowther. Lowther was parson of the parish of Swillington; and Scoles lived in Kippax, the next adjoining parish, and occupied a large parcel of arable land in Kippax, and had also forty acres of meadow and pasture in Swillington, and four acres of arable land. Lowther libelled in the spiritual court of York against Scoles, for tithes of the cattle depastured in Swillington. Scoles, upon a suggestion that cattle kept for the pail for the use of the house ought not by the law to pay tithes, and that this cattle for the tithes whereof Lowther now libels is such, moved for a prohibition. And it was granted to him unless cause shewn. And now upon affidavit that Scoles carried the milk of this cattle to his house in Kippax, and used it there, it was moved that the rule might be discharged. And it was resolved by the whole court, that the defendant Lowther should have the tithes of this milk. L. Raym. 129.

(8) Austyn v. Lucas, Cro. El. 609. Wats. Cl. L. 555.

(9) But see Wright v. Elderton, 1 Wood's D. 519. Gwm. 607. acc.

And as to the tithe of the milk of sheep, it is ordained by the said constitution, that in the parishes where the sheep continually feed from the time of shearing to the feast of St. Martin in the winter, the tithe of their milk and cheese shall be fully paid to the churches there, although they shall be afterwards removed from that parish and be shorn elsewhere. And if within the aforesaid time, they be removed to pasture in divers parishes; every church, according to a proportionable part of the time, shall receive the tithe thereof; but no space less than that of thirty days shall be reckoned in the computation. But if after the feast of St. Martin, they be carried to pastures elsewhere, and be fed even until the time of shearing in one or in divers parishes, in the pastures of their owner or of any other; the pastures shall be valued, having respect to the number of sheep, and according to such valuation of the pastures, the tithes shall be demanded of the owners of such pastures. Lind. 197.

And the reason is, because after the feast of St. Martin sheep are not usually milked. And therefore this constitution requireth that the tithe be paid according to the value of the pasture for so [509] many sheep there depastured. Otherwise if they should lie there,

When milk shall be paid, and when cheese.

Agistment of milk

cattle.

Manner of tithing.

and in the meantime give milk, and cheese should be made thereof, then the tithe of milk and of cheese should be paid as they should fall out. Lind. 198.

5. By another constitution of the same archbishop, the tithe of milk shall be paid in cheese, whilst the parishioner maketh cheese but in the autumn and winter it shall be paid in kind; unless the parishioners will for the same make a competent redemption to the value of the tithe and the benefit of the church. Lind. 194.

But the canon in this, as in other instances, is generally overruled by the custom of the place; for in many places they pay the milk in kind all the year: in some places they pay only cheese; and in some neither cheese nor milk, but some small rate for it and the custom of the place in this as in all other tithing, is to be observed, notwithstanding the canon. Deg. p. 2.

c. 6.

6. When milch cows are become dry, and are depastured as dry cattle, though but for a month; an agistment tithe shall be paid for them and so it is, if they are fatted and sold. Boh. 96.

7. The tithe of milk is to be paid, not by the tenth part of every meal, but by every tenth meal intire. Bunb. 20.

In the aforesaid case of Scoles and Lowther, it was said by the court, that of common right tithe milk is payable at the parsonage or vicarage house; in which particular this tithe differs from all others, which must be fetched by the receiver; but by custom the payment may be made in the church porch, whither it shall be brought by the parishioners. L. Raym. 129. Wood. b. 2. c. 2.

But in the case of Dodson and Oliver, E. 1721; it was decreed that if there be any custom in a parish for the manner of tithing milk, as to carry it to the church porch, or parsonage house, that must be observed by the parishioner; but if there be no particular custom or usage, the parishioner is obliged de jure to pay every tenth meal, to milk the cows at the usual place of milking into his own pails, and the parson is obliged to fetch it away from the milking place in his own pails in a reasonable time; and if he doth not fetch it before the next milking time, the parishioner may justify pouring the milk upon the ground, because he hath occasion for his own pails. And it was determined by the whole court of exchequer in this case, that the milk ought not to be carried either to the church porch, or to the parson's house, and [510] that it ought to be fetched by the parson. Bunb. 73. (q)

So in the case of Carthew and Edwards, T. 1749. Edward Carthew, clerk, rector of St. Mewan in Cornwall, brought this bill in the exchequer (amongst other particulars) for the tithe of milk. The defendant Edwards in his answer set forth, that the plaintiff having declared he would not send for or fetch the tithe milk, he did order every tenth meal of his cows to be turned upon the ground; it not being usual or customary for the parishioners of the said parish, to carry their tithe milk home to the rector. The court, upon hearing the cause, and ordering two decrees in the said court to be read, wherein Dobson was plaintiff and Oliver defendant, did declare, that the defendant ought to have milked the tenth meal of his cows, in vessels of his own, at the place and in the manner he milked the other nine meals, and that the plaintiff ought to have fetched it away in his own vessels. (r)

In the case of Dr. Bosworth, rector of Tortworth in Gloucestershire, against Limbrick and others, M. 1777 (1), Mr. baron Eyre delivered the resolution of the court as follows: The plaintiff by his bill complains, that he hath been defrauded of one-third of his tithe milk, by the setting forth the tithe on an evening, and never on a morning, under a plea of the defendants, that the tenth meal was assigned to the parson by law. They allege, that they have duly set out to the plaintiff, for his tithe, every fifth evening's meal; which, they say, is the tenth meal to which the parson is intitled:. They having brought their cows to the pail in the morning, and beginning to count from the morning of that

(g) That tender of tithe cheese at the house of the parishioner is good, see Wiseman v. Denham, 2 Rol. Rep. 328, Palm. 341. 381. [A custom that a parson shall send for his tithe milk, is good. Hill v. Vaux, 1 Raym. 358. 2 Salk. 656.]

(r) S. P. Carthew v. Edwards, Amb. 72. [And see Hutchins v Trull, 4 Wood's D. 155. Morgan v. Neville, Gwm. 1046.] (1) Gwm. 1101. 4 Wood's D. 24.

day to the evening, and so on, the fifth evening's meal of milk makes the tenth meal, which is the parson's due. The plaintiff contends, that the setting out every fifth evening's meal is not the due mode of tithing; that the produce of the evening's meal, from physical as well as other causes, must always be less in quantity than the morning's meal. And the witnesses on both sides agreed, that the fact is so, though they differ a great deal as to the proportion. One of the plaintiff's witnesses made a great [ 511] number of experiments, in order to ascertain the proportion in which the evening's meal fell short; and it appeared upon the result of these experiments, that it frequently fell short a third, but never less than a fourth part of the morning's. It therefore follows, as a necessary consequence, that a fifth evening's meal, constantly set out to the parson, must produce him less upon the whole than a tenth part of the milk. This being the fact, the argument proceeds thus: The tithe of milk (as of all other tithable matters) belonging de jure to the parson, is the tenth part of the milk produced. A rule of tithing, therefore, which necessarily gives to the parson less than the tenth cannot be the true rule. This was the sum of the argument urged for the plaintiff. It was admitted, that it had been thus far settled, by the few cases that are to be found on the subject of tithe milk, that neither the tenth part of every cow's milk at every meal, nor the tenth part of the whole meal, were to be set out to the parson, and that the tenth meal was the tithe to be set out. But for the plaintiff, it was insisted, that the tenth meal must not be so computed, as necessarily to produce less than a tenth part of the whole ten meals taken together.Upon general principles: We find it difficult to persuade ourselves, that that can be a true rule of tithing which puts it in the power of the parishioner to give the parson perhaps a twelfth, a thirteenth, or a fourteenth, instead of a tenth part. A prescription to pay less than a tenth, we all know, would be a void prescription, unless it were assisted by some consideration to make the parson amends for the difference between the tenth and that less which the prescription proposed to give him. When the tenth meal was declared to be the right of the parson, it was certainly substituted in the place of the tenth quart; or the tenth dish, or the tenth part of each meal. It was not meant to give less than the tenth, but the object was to give the tenth in a more convenient and more useful form. It was therefore auxiliary to the general right of a tenth: it was intended to fortify, and not to destroy, that right. If therefore a construction can be put upon this rule of tithing, which will preserve the original spirit of it, and put it out of the power of any man to make it an instrument of wrong and injustice, this court will strongly incline to adopt such a construction. And upon consideration, we think may admit such a construction. The morning and evening

it

meals, being necessarily unequal in produce, may, and we think, ought to be, considered as distinct tithable matters, from each of which you may count on to the tenth, which will be the right of the parson; and that tenth will be the tenth meal of that description to which it belongs, either morning or evening: and in this way the parson will, upon the whole, have his full tenth, as much as he can have in the manner of collecting any other species of tithes whatever; instead of necessarily taking less than a tenth in the defendant's way of setting out his tithes. And, in respect to authority, upon a careful review of all the cases that we have been able to find upon this subject, we not only do not find any adjudged cases standing in our way, but we collect that the rule of the tenth meal was originally understood in the sense in which we think it ought now to be understood. There appears therefore to us nothing, in point of argument or authority, which should prevent us from effecting the justice of the case between these parties, by declaring that the defendants ought to have paid to the plaintiff the tenth morning's meal, and the tenth evening's meal, of this milk; in which having failed, they will be decreed to account. The costs in this cause re

main to be considered. Hitherto we have considered the case in the abstract, for the sake of the dry point, detached from every circumstance of fact, the single fact of inequality in the morning's and evening's milk only excepted, upon which the whole arises. But upon the question of costs, the history of the cause, and the general complexion of it, becomes material. I think both may be collected from the evidence of one of the witnesses; who has told us, that he entered into engagements with a noble lord, to advise his tenants, and to assist them in setting out their tithes ; that one of the defendants by name, and eight others, delivered a notice in writing to the plaintiff, that they would set out their tithe milk every fifth day in the afternoon, and that the next meal would be due on the twenty-fifth day of April next; and the milk was accordingly set out every fifth evening. The purpose of setting out the the tithe in the evening, and of so many different persons setting out their tithes on the same evening, is too obvious to be mistaken. The witness gravely tells us, that he was ordered to charge the tenants to play no tricks. Taking advantage of what he understood to be the letter of the law to injure the parson materially in his right, as well as to distress him as much as possible in the exercise of that right, I suppose this gentleman thought was no trick. But we are of opinion that this was [518] a trick; disgraceful to the adviser of it, and reflecting no honour upon any one of the parties concerned in, or consenting to, it. Dr. Bosworth, feeling himself aggrieved by these manœuvres, has taken upon him to controvert this point of law; and he has succeeded under these circumstances, that though