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bishop cannot present to himself; but he does, by the one act of collation or con* ferring the benefice, the whole that is [ 23 ] done in common cases by both presentation and institution. An advowson donative (10), is when the king, or any sub- or donative. ject by his licence, doth found a church or chapel, and ordains that it shall be merely in the gift or disposal of the patron; subject to his visitation only, and not to that of the ordinary; and vested absolutely in the clerk by the patron's deed of donation, without presentation, institution, or in



(10) Watson says, (in the 15th ch. when the donative is the first living of his Comp. Inc.) not only a church taken; if it be the second, as it requires or chapel, but all sorts of ecclesiastical neither institution nor induction, the preferments, may be donative. Bishop case is out of the statute. (See 21 Hen. ricks were donative until the time of VIII. c. 13). Still, by the canon law, the king John. Some prebends are still incumbent will be prevented from donative; as those in the Royal Cha- holding both benefices, unless he has pels at Windsor and Westminster, a dispensation. (Ayliffe's Parerg. 418; which the king may confer by patent. Lindw. lib. 3, tit. 5, c. 2). A donative and his clerk may take possession with- does not lapse in consequence of reout any institution or induction. A no- maining void, unless it be so specially mination, however, to a perpetual cu- provided for in the foundation; but the racy is not strictly a donative; for, bishop may, by spiritual censures, though it requires neither presentation, compel the patron to nominate a clerk. institution, nor induction, the curate (1 Inst. 344. Wats. c. 12. Fairchild must be authorized by a licence from v. Gayre, Yelv. 61). But if a donative the bishop before he can legally offi. be augmented by Queen Anne's bounty, ciate; whereas possession by donation it will lapse in like manner as presenreceives its full effect from the sole au- tative livings. (1 Geo. I. st. 2, c. 10). thority of the donor. (Bowell v. Milbank, The prerogative of the crown in pre1 T. R. 401, n. The King v. Bishop senting to benefices where it has proof Chester, 1 T. R. 403). Degge, (in moted the last incumbent, does not exhis Pars. Couns. p. 1, c. 13,) informs us, tend to donatives; for the promotion that “donatives are within the statute doth not make a vacancy of the donaagainst simony; and where they have tive, it causes no cession, the parson cure of souls, they are likewise within is still in by the authority of the patron. the statute of pluralities." And the same (Bishop of London v. Attorney-General, doctrine as to simony is judicially laid Show. P. C. 184). Presentation to a down in Bawderock v. Mackallar, Cro. donative by a stranger, and admission Car. 331; and Carver v. Pinkney, 3 and institution thereupon, are acts not Lev. 83. Mr. Wooddeson, however, merely voidable but of no effect ab (in his Lect. vol. i. p. 330,) observes, initio. (1 Inst. 341). the words of the statute apply only


duction (i). This is said to have been antiently the only way of conferring ecclesiastical benefices in England; the method of institution by the bishop not being established more early than the time of Archbishop Becket, in the reign of Henry II (I). And therefore, though Pope Alexander

k III. (l) in a letter to Becket, severely inveighs against the prava consuetudo, as he calls it, of investiture conferred by the patron only, this however shews what was then the common usage. Others contend that the claim of the bishops to institution is as old as the first planting of Christianity in this island, and in proof of it they allege a letter from the English nobility to the pope in the reign of Henry the Third, recorded by Matthew Paris (m), which speaks of presentation to the bishop as a thing immemorial. The truth seems to be, that where the benefice was to be conferred on a mere layman, he was first presented to the bishop, in order to receive ordination, who was at liberty to examine and refuse him; but where the clerk was already in orders, the living was usually vested in him by the sole donation of the patron; till about the middle of the twelfth century, when the pope and his bishops endeavoured to introduce a kind of feodal dominion over ecclesiastical benefices, and, in consequence of that, began to claim and exercise the right of institution universally, as a species of spiritual investiture.

However this may be, if, as the law now stands, the true patron once waves this privilege of donation, and presents to the bishop, and his clerk is admitted and instituted, the ad*vowson is now become for ever presentative, and shall never be donative any more (n) (11). For these exceptions to


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(i) Co. Litt. 344.
(k) Seld. Tith. c. 12, s. 2.
(1) Decretal, l. 3, t. 7, c. 3.

(m) A. D. 1239.
(n) Co. Litt. 344. Cro. Jac. 63.

(11) Degge, 205, is in accordance 140. Holt's Rep. 259), a donative was with the text; and though in the case of held not to be destroyed by one, or by Ladd v. Widdows, (2 Salk. 541. 3 Salk. several, presentations; still, it does not

general rules and common right are ever looked upon by the law in an unfavourable view, and construed as strictly as possible. If therefore the patron, in whom such peculiar right resides, does once give up that right, the law, which loves uniformity, will interpret it to be done with an intention of giving it up for ever; and will therefore reduce it to the standard of other ecclesiastical livings.

II. A second species of incorporeal hereditaments is that II. Tithes : of tithes; which are defined (12) to be the tenth part of the increase, yearly arising and renewing from the profits of lands, the stock upon lands, and the personal industry of the inhabitants: the first species being usually called pre- predial, dial, as of corn, grass, hops, and wood (0) (13): the second

(0) 1 Roll. Abr. 635. 2 Inst. 649.

clearly appear from the reports, that no instance in which more than a tenth the dictum is to be understood gene- is here paid as tithe, co nomine; and rally; on the contrary, as the court, that a parson shall take less than a in the case cited, assigns as the reason tenth part of any specific article, hayfor the judgment then given, that the ing a compensation in the parishioner's donative was created by letters patent; work and labour, by no means disthe inference should rather seem to be, proves the parson's right to a full that with respect to donatives which tenth, but shews that he receives a are such merely by prescription, by consideration, which is in fact an acrepeated interruptions (if not by a knowledgment of that right. (Smyth single voluntary one) the prescriptive v. Sambrock, 1 Mau. & Sel. 73. Jucktitle would be lost.

son's case, Clayton, 60). The faulty (12) The definition proposed in the part of the definition seems to be the text is not strictly accurate. Ayliffe supposition that tithe consists, in all (in his Parerg. Ju. Can. 504), observes, cases, of the tenth part of the inercase " tithe is a certain quota, or portion of yearly arising and renewing. This is moveable goods; I say a quota or cer- not correct, even as to predial tithes, tain portion, because tithe is not in all universally; and to mixt and personal places the tenth part, but various, ac- tithes it does not at all apply. (See cording to the custom of parishes." the 4th ch. of Toller on Tithes). (And see Doct. and Student, c. 55). (13) Wood is one of the instances to This objection, however, is not of great shew that predial tithe may be payable weight, for, whatever may have been in respect of an article of which the the case in other times and countries, renewal is not annual. Silva cadun is with us the word tithe has acquired a titheable when it is felicd; and befixed meaning. It is believed, there is tween the falls several years



mixed, as of wool, milk, pigs, &c. (p), consisting of natural products, but nurtured and preserved in part by the care of man (14); and of these the tenth must be paid in gross: the third personal, as of manual occupations, trades, fisheries, and the like; and of these only the tenth part of the clear gains and profits is due (q) (15).


(p) 1 Roll. Abr. 635. 2 Inst. 649.

(9) 1 Roll. Abr. 656.

monly (and a great many years, not 195, and Wood, b. 2, c. 22, this tithe unfrequently) intervene. (Page v. Wil. is payable where the fisherman hears son, 2 Jac. & Walk. 523.

Walton v. divine service and takes the sacra Tryon, 1 Dick. 245. Chichester v. ment. (See also the Anonymous case, Sheldon, Turn. & Russ. 249).

Cro. Car. 264. The King v. Carlyon, (14) Burn, Watson, Wood, Degge, 3 T. R. 386. Scarborough v. Hunter, Toller, and other writers on tithe, speak Bunb. 43. Gwavas v. Kelynack, Bunb. of mixed tithe, not as something 256; and Anon. Hetley, 13; if, as bearing a mixed character, partaking appears to be the case, it is a tithe partly of the qualities of predial, and due by custom only, custom must departly of the qualities of personal tithe; termine to whom it ought to be paid. but as tithe arising, not immediately Stat. 27 Hen. VIII. c. 20). With refrom the ground, but, mediately from spect to fish taken in rivers, it seems animals which have their nourishment settled, that tithes are not payable from the ground. Many of the subjects except by custom. (Dawes v. Huddleof mixed tithe seem to be most correctly stone, Cro. Car. 339). And of fish included in the last description, though taken out of ponds, not for sale, but the appellation “mixed,” would lead for consumption in the proprietor's own one, a priori, to expect that our author's family, no tithe is due. (Bohun, 135). definition would be found most correct. It was decreed in the House of Perhaps, neither definition is positively Peers, on appeal from the Court of incorrect, as far it goes; but both may Exchequer, that the tithes of a mill are be incomplete.

personal tithes, against several dicta in (15) By the statute of 2 & 3 Edw. the books; and thai, in consequence of VI. c. 13, s. 7, it is enacted, that their being personal tithes, not the “all such persons as heretofore within tenth toll, or tenth dish of the corn forty years have accustomably used ground, belongs to the parson; but the to pay personal tithes, shall, yearly at tenth part of the clear profits, after the Easter, pay for his personal tithes charges of erecting the mill, and the the tenth part of his clear gains.” This other charges of servants, horses, and act greatly curtailed the claim to other incidental expenses deducted. personal tithe; the 11th section of the Chamberlain v. Newte, 1 Br. P. C. statute preserved to the church, how- 160, fol. edit. Manby v. Curtis, 2 Pr. ever, the right to tithe of fish, taken 295). in the

According to Lindw. It appears, then, that for all corn


It is not to be expected from the nature of these general commentaries, that I should particularly specify what things are titheable, and what not; the time when, or the manner and proportion in which, tithes are usually due. For this I must refer to such authors as have treated the matter in detail: and shall only observe, that, in general, tithes are to be paid for every thing that yields an annual increase, as corn, hay, fruit, cattle, poultry, and the like; but not for any thing that is of the substance of the earth, or is not of annual(16) increase, as stone, lime, chalk, and the like; nor for creatures that are of a wild nature, or feræ naturæ (17), as deer, hawks, &c. whose increase, so as to profit the owner, is not annual, but casual (r). It will rather be our business to consider, 1. The original of the right

(r) 2 Inst. 651.

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mills, however antient, if they have and personal, there is another division been accustomed to pay tithe, and for of them into great and small tithe, all corn mills erected since the statute, which will be adverted to, post, in tithes must be paid. But where the note (26). date of the first erection of an antient (16) See ante, notes 12 and 13, that mill is not known, and it has never this description holds good generally, been subject to the payment of tithes, but not universally. it will, in legal intendment, be taken (17) By special custom, tithe may to have been erected before the statute, be payable in respect of animals feræ and so to be tithe free. (Bohun, 127. naturæ. Custom, if well established, Hughes v. Billinghurst, 2 Gwill. 644). and not inconsistent with positive law, However, if any additional pairs of or public policy, is conclusive upon all stones are added to an antient mill, it questions of tithe. (See stat. 27 Hen. seems now settled, after considerable VIII. c. 20). Perfectly wild rabbits, fluctuation of judicial opinion, that tithe in which no man has a fixed property, must be paid in respect of the increased are not titheable of common right, when quantity of corn ground. (Manby v. taken. (Worden v. Benet, 1 Rolle's Abr. Taylor, 3 Ves. & Bea. 71). Corn 635). Even of rabbits preserved in a mills only are regularly subject to pay- warren, and which are strictly private ment of personal tithe; but, by custom, property, it seems, no tithe can be detithe may be payable for mills of any manded, except by custom: but a claim other description. (Gibs. 666. Talbot to tithes in kind of rabbits from a warV. May, 3 Atk. 18).

ren, or to a modus for them, may be Besides the distinctions of tithe established by proof of a custom. (Walnoticed in the text, as predial, mixed, on v. Tryon, 1 Dick. 248. Ambl. 135).

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