the fulfilment of the moral duty of maintaining those who gave up their lives to the public good, and by their profession divested themselves of the ordinary means of obtaining a livelihood; and the example of the Jews was doubtless much pressed, so that the amount of the contributions was determined by that example. Long custom having established a sort of right to claim tithes, they came to be recognized by the municipal law. In a canon or *ecclesi[*68] astical decree made in a synod in A. D. 786, their payment is strongly enjoined. Afterwards in two of the kingdoms of the heptarchy, Mercia and Northumberland, the sanction of the conventions of estates was given to their demand. Other mention of them in the Saxon laws can occasionally be found(i).

The voluntary nature of tithes continued, however, for some time afterwards to the extent, as before-mentioned (k), of their not being appropriated to any particular church. Some relics of these arbitrary appropriations remain to the present day, in those cases where portions of tithes in one parish are due to the parson of a neighbouring parish, and where the ownership of tithes is vested in corporations and persons other than the parson. Many, through a feeling of caprice, or perhaps the more effective incentive of a superstitious desire to have masses said for their souls, paid their tithes to a monastery or other religious house, either already in existence or then founded. From this source tithes afterwards came to be possessed by laymen. For upon the dissolution of the monasteries by Henry VIII., their lands and other possessions, including of course the tithes, became vested in the king (7), who shortly afterwards granted them to various persons, the letters patent granting them being confirmed by statute (m). From this period tithes, when held by a layman (n), have been treated in all respects like landed property, and are subject to all its incidents (o). *But they continued entirely distinct from the land out of which they issued, even though owned by the same person; [*69] the property in the tithes could not even in that case, until recently, merge in that of the land, and a conveyance of the land with its appurtenances would not pass the tithes (p). Moreover, tithes have invariably descended to the ordinary heir-at-law, even where the land from which they issued was subject to any peculiar customs of inheritance, such as those of gavelkind or borough English, of which we shall see more hereafter (q).

By the commutation acts, provisions have been made under which tithes, when possessed by the owner of the land, may be extinguished (r). But except where tithes have thus been separated from their original ccclesiastical

(i) See Seld. c. 6; Wilkins, p. 51. (k) Ante, vol. i. p. 132.

(1) By 27 Hen. 8, c. 28.

(m) 31 Hen. 8, c. 13 and 32 Hen. 8, c. 28; the latter statute gave lay owners the same remedies in the ecclesiastical courts as were formerly enjoyed by spiritual owners. It also directed that the same assurances should be used in reference to tithes as had been employed for lands, and gave tithe owners power to apply to the temporal courts to compel payment of tithes.

(n) When in the hands of lay owners, they are said to be "impropriated," the lay owner being called the impropriator.

(0) Co. Litt. 6, 159 a; R. v. Ellis, 3 Price,

"

323, where it was held that tithes were tenements."

(p) 6 Bac. Abr. 756; Phillips v. Jones, 3 Bos. & P. 362; Chapman v. Gatcombe, 2 N. C. 516.

(q) Doe v. Bishop of Llandaff, 2 B. & P. N. R. 491. Gavel-kind lands in Kent descend to all the sons equally. Borough English lands, which are occasionally found in the north, descend to the younger son in priority to the elder. See Post, c. 6.

(r) 6 & 7 Will. 4, c. 71, s. 71; 7 Will. 4 & 1 Vict. c. 69, s. 12; 1 & 2 Vict. c. 64, s. 2; and as to charges on tithes, 1 & 2 Vict. c. 62; and as to equitable owners, 9 & 10 Vict. c. 73, s. 19.

destination, they are universally admitted to be due as of common right to the parson of the parish in which the land lies (s).

Tithes in their ancient form were divided into two main classes, predial and personal. A third class called mixed, i. e., intermediate between the others, has

Different kinds of tithes.

Predial tithes.

Mixed tithes.

usually been added, but the tithes included in it cannot, as will be seen, be distinguished from predial tithes by any well founded difference. Predial tithes (t) were such as grew out of the soil, e. g., corn and other grain, hay, hops, and underwood (u), either spontaneously or through the agency of human labour; but in estimating [*70] them no allowance was ever made in respect of any expense or labour attending their production. Mixed tithes were those which arose remotely and not immediately from the land, such as the produce and increase of animals fed upon the land, e. g., milk, wool, calves, lambs, pigs, &c., where the animals derive much of their value from the nurture and care bestowed upon them by man. Animals feræ naturæ, such as deer in a park or rabbits in a warren, though substantially profitable, were never titheable at common law, although in particular places even some of these were made so by custom (x). It will be seen that there is but slight difference between predial and mixed tithes, at least in modern days when the culture of land involves as much science and labour as the care of beasts or sheep.

Personal tithes.

Personal tithes were, however, quite distinct; they were taken from the profits arising from the labour and industry of man other than agricultural. In very early times they must have been of no inconsiderable importance; indeed, in the sixteenth century, this must still have been the case, for we find that by 2 & 3 Ed. 6, c. 13, it is enacted that every person exercising merchandise, &c. or other art or faculty, who had within. forty years *preceding paid personal tithes, should pay for his personal [*71] tithes one-tenth part of his clear gains, his charges and expenses, according to his estate, condition, or degree, to be therein allowed and deducted. This statute would at first seem to include the income arising from all trades and professions, and this was the view formerly held (y); but it has long become so far obsolete that this kind of tithe has long been nowhere paid except in the case of sea fisheries (2) and corn mills (a), and, very rarely,

(8) Where land is extra-parochial, tithes are due to the king or his grantees, ante, vol. i. p. 134; Bannister v. Wright, Gwill. 501; A.-G. v. Lord Eardley, 8 Price, 39.

(t) So called from prædium, the word adopted by the canon law as the common appellation of arable, meadow, and pasture land.

(u) A peculiar case of predial tithes is that of agistments or the pasturage of cattle, which is titheable, since the grass, if cut when full grown, would have been so. It is predial because it arises directly from the land (Scarr v. Trin. Coll. Gwill. 1445; s. c. 3 Anst. 763; 1 Wils. 170.) It was payable, however, only in respect of cattle which do not otherwise render a profit to the parson; and is not payable for milch cows, or horses used in husbandry, or even for pleasure, unless they be also employed for a profitable purpose other than the cultivation of the soil (Thorp v. Bendlowes, Gwill. 899); nor is it payable out of meadow lands which have

already paid tithe of hay, although afterwards used as pasturage (Ayd v. Flower, Gwill. 613). As to those tithes whose increase is not annual, but at intervals greater than a year, such as underwood, see Chichester v. Sheldon, Turn. & R. 245; Lozon v. Pryze, 4 Myl. & Cr. 600.

(x) Com. Dig. Dismes, H. 4, 16; Cowper v. Andrews, Gwill. 427; Dawes v. Huddleston, Cro. Car. 339.

(y) See Chamberlaine v. Newte, 7 Bro. P. C. 3; 2 Eag. & Y. 240; 2 Price, 295; 2 Burns' Eccl. Law, 474.

(2) "Tithe of fish taken in the sea is only due by custom, Holland v. Heale, Noy, 108; Anon. Cro. Car. 264," per C. B. Parker, in Williams v. Baron, Gwill. 931; and see Kelynack v. Gwavas, 2 Bro. P. C. 446; Wolredge v. Henna, 2 Wood's Cases, 50.

(a) 1 Eagle on Tithes, 377 et seq.; Thomas v Price, Gwill. 871, and cases there cited. Mills more ancient than the 9 Edw. 2, A.D. 1315, are by the statute Articuli cleri, c. 5, impliedly

river fisheries (b). Moreover these are now in any case only to be payable where there is a custom to pay them. The important distinction between personal and other tithes was that the former consist only of the tenth of the clear profits after deducting all expenses, but the latter consist of a tenth of the produce without any such deduction.

We may here notice that special custom has in certain places rendered titheable some things which are not so of common right; for instance, stone, slate, or lime from quarries, and tin, lead, coal, and other products of mines (c). But as to what things were titheable, we must refer our readers to the works of those authors who have specially treated the subject (d). The Commutation *Acts apply to all these tithes, as well as those upon fisheries and corn mills (e).

Another division

[*72] Another division of tithes more interesting to us at the present day is that into great and small tithes. The former comprehended those tithes which ordinarily would be of the greater value, such as those of corn, hay, wood; into great and the latter those of the lesser vegetables, such as hops, potatoes, small tithes. turnips, herbs, flax, apples, and other fruit, clover (when not made into hay), madder, woad, &c. This division was, according to the nature of the vegetable, and not the quantity of it in any particular parish (ƒ). It depended, however, not upon what would be a satisfactory classification to a naturalist, but arose solely by custom. The catalogue of articles constituting the two classes need not here be given, but the distinction is important, because in those parishes where there is a rector and an incumbent vicar the great tithes were usually payable to the rector, and the small tithes to the vicar. When monasteries and other spiritual corporations acquired the property in parsonages, and consequently tithes, it was usual for them to delegate the duty of ministering in the parish to some priest, and it was for his support as their vicar that they set apart the small tithes. Afterwards, sundry statutes were passed for the purpose of securing a sufficient endowment, at the discretion of the ordinary, out of that of the parsonage or rectory. The rector is prima facie entitled to all tithes, both great and small; and payment to the rector is a sufficient discharge against the vicar, who in order to claim them must produce an endowment or give such evidence as will be accepted as proving

it by prescription, for the court will not presume any thing, in the [*73] absence of an endowment, in favour of the vicar against the rector (z). No other person than a rector or vicar, such as a curate, has in general any claim to tithes (a).

chequer Cases on Tithes may be consulted, and Gwillim's cases.

(e) 6 & 7 Will. 4, c. 71, s. 90; 2 & 3 Vict. c. 62, s. 9.

(f) See Smith v. Wyatt, Gwill. 777, where Lord Hardwicke held that potatoes, though grown in large quantities, were nevertheless a small tithe. Privy tithes are generally synonymous with small tithes. See Clee v. Hall, i West. 148.

(z) Renoulds v. Green, 2 Bulstr. 27; Chapman v. Smith, 2 Ves. Sen. 505, 511; Greene v. Austen, Yelv. 86; s. c. Gwill. 226; Carte v. Ball, 3 Atk. 496; Mirehouse, 11. (a) Mirehouse, 20.

Since the division of great and small tithes is now well established, and the latter are considered as belonging to the vicar, if he produces evidence of an endowment, the onus probandi in respect of any article claimed by the rector, if ordinarily a small tithe, is thrown upon him; so that he must show that some different arrangement to the usual one had been, or by necessary presumption must have been made, in the distribution of tithes in his parish, subsequent to the endowment and prior to the disabling statute of Elizabeth (6). On the other hand, usage will be readily accepted as a proof in favour of the extension of the original endowment to some article not ordinarily a vicar's tithe (c.)

Under the Commutation Acts the respective rights of the owners of great and small tithes were of course duly preserved, and proportional rent charges substituted.

Returning from this digression on the subject of tithes to the subject of rents in general, we come next to consider the remedies which their owner possesses in case of nonpayment. These are of two sorts; first, non-payment of those which are provided by the contract, and, secondly, those

Remedies for

rent.

[*74]

which are conferred by law independently of contract.

*In all modern leases and deeds creating rent or a rent charge, there is inserted a covenant on the part of the lessee or the owner of the land, subject to the charge to pay the rent, from which covenant arises a right to sue for the rent, which right of action there may also be classed the right which arises from the implied contract to pay for the use and occupation of the premises (d). These causes of action need no further remark here.

But, besides, there is usually inserted in leases a provision, that if default be made in payment of the rent, the lessor may re-enter upon the land, oust the tenant, and resume the possession and estate which he had before the lease. The severe penalty which a stringent application of this provision would inflict upon the tenant is not favoured by the law. The Court of Chancery first took upon itself to relieve a tenant from the penalty, even a long time after his being ejected, upon the terms of paying the rent due and interest thereon, together with all costs. This remedy has recently been also given to courts of law; but now the tenant must, whether in equity or at law, apply for relief within six months from the execution under the ejectment being executed (e).

Of the many characteristics of rents, the peculiar remedy of distress which the law gives is amongst the most interesting, and at the same time most important.

Distress.

A distress (f), districtio, is the taking of a personal chattel out of the possession of the wrongdoer into the custody of the party injured, to procure a satisfaction for the wrong committed.

A distress may be levied for nonpayment of rent fixed, and due under an actual demise, or for nonperformance of a duty; cattle also may be distrained

(b) 13 Eliz. c. 10; 14 Eliz. cc. 11 & 14; 18 Eliz. c. 11, and 43 Eliz. c. 29; Audrey v. Smallcombe, Gwill. 1526.

(c) Hardr. 328; Renoulds v. Green, 2 Bulstr. 27; Ryan v. Booth, 2 Price, 250; Manby v. Curtis, ib. 284; Cunliffe v. Taylor, ib. 329; forty years usage has been considered sufficient, Parsons v. Bellamy, 4 Price, 198; Goole v. Jordan, Gwill. 648; Goole v. Jordan,

Bunb. 144; Manby v. Lodge, 9 Price, 231;
Mirehouse, 15, 17.

(d) As to suing upon these different grounds, see Common Law Procedure Act, 1852 (15 & 16 Vict. c. 76).

(e) See 15 & 16 Vict. c. 76, s. 210; 23 & 24 Vict. c. 126.

(f) The thing taken by this process, as well as the process itself, is in our modern law books called a distress.

damage-feasant, that is, doing damage, or trespassing, upon a man's land. The first-mentioned remedy is intended for the benefit of land- [*75] lords, to prevent tenants from secreting or withdrawing effects to the landlord's prejudice; and also it would seem — because landlords are peculiarly exposed to imposition by reason of the enjoyment of the demised property, sometimes for a lengthened period, having necessarily preceded the accruing of any liability to pay for it. The latter remedy arises from the necessity of the thing, as it might otherwise be impossible at a future time to ascertain whose cattle they were that committed the trespass or damage.

As the law relating to distress contains points of considerable nicety, we shall consider it with some minuteness, inquiring, 1st, for what injuries a distress may be taken; 2ndly, what things may be distrained; and 3rdly, the manner of taking, disposing of, and avoiding a distress.

1st. For what a

made.

1st. (1.) The most usual ground for making a distress is nonpayment of rent. (217) It has already been observed that distresses were incident by the common law to every rent-service, and by particular reservation distress may be to rent-charges also; but not to rent-seck, till the statute 4 Geo. 2, c. 28 (g), afforded for it the same remedy. So that now it holds generally that a distress may be taken for any kind of rent in arrear or detained beyond the day of payment, though by stat. 3 & 4 Will. 4, c. 27, s. 42, (h), it is enacted that no arrears of rent, or damages in respect of such arrears shall be recovered by distress, but within six years next after the same respectively shall have become due, or next after an acknowledgment of the same in writing shall have been given to the person entitled thereto, or his agent, signed by the person to whom the same was payable or his agent (i). (2.) For neglecting to do suit to the lord's court (k), or other certain personal service (1), the lord may distrain, of common right. (3.). For an [*76] amercement in a court-leet a distress may be had of common right; but not for an amercement in a court-baron, without a special prescription to warrant it (m). (4.) Another injury for which, as above intimated, a distress may be taken, is where a man finds beasts of a stranger wandering in his grounds, damage-feasant; that is, doing him hurt or damage, by treading down his grass, or the like, in which case the owner of the soil may distrain them till satisfaction be made him for the injury he has thereby sustained. (5.) For various penalties inflicted by act of parliament, a remedy by distress and sale is (g) Sect. 5.

(h) See, also, sect. 2.

(i) The personal representatives of a lessor may distrain for rent in arrear in his lifetime, 3 & 4 Will. 4, c. 42, s. 37, and see s. 38.

(k) Bro. Abr. tit. Distress, 15.
(4) Co. Litt. 96.

(m) Brownl. 36.

(217) The English remedy by distress for rent was very generally adopted by the several States as a part of the comnion law. But the tendency of modern legislation is in the direction of abolishing or limiting the remedy, because it gives landlords an undue advantage over other creditors in the collection of debts. In New York the statutes authorizing distress for rent have been repealed. Laws 1846, ch. 274. See Taylor's Landlord and Tenant, § 558.

Where the remedy by distress for rent exists there are some important rules to be observed. There can be no distress unless there has been a demise at a certain fixed rent, either in money, produce or services, payable at a time certain, or unless the amount, if not fixed, is capable of being reduced to a certainty by calculation. Valentine v. Jackson, 9 Wend. 302; Wells v. Hornish, 3 Penn 30; Reeves v. McKenzie, 1 Bailey, 500; Jacks v. Smith, 1 Bay. 315.