Dodderidge, and Haughton, Js. observing, that land was not barren which could bear corn without cost, as this did, and therefore tithes ought to be paid for it; and that the circumstance of the party having been at great costs in raising a mound to make this good land, by the exclusion of the sea, would not alter the case (12). Land, the tithe of which was demanded", was part of a common adjoining to the town of Caermarthen, belonging to the burgesses, formerly lying open, and depastured by cattle and geese, which in the year 1785 was enclosed and converted into tillage. One end of it was wet, and there was a considerable expense incurred in draining, as well as in enclosing. In the spring of 1785 it was partly sowed with oats, and without any manure produced a valuable crop. It was holden that this land was not protected by the statute, not being suapte naturâ sterilis, and consequently should pay tithe immediately: Eyre, C. B. observing, that enclosure was essential, in some situations, to the enjoyment in severalty, without being essential to the fertility. Draining might be a great improvement, might render land more productive, which would be of itself productive without draining. It was not, therefore, because a great expense was incurred by enclosing and draining land without more, that such land should be protected by the statute. If land will bear a crop of corn without expense in tillage, this circumstance is decisive that the land is not suâpte naturâ sterilis. The land in question was a hollow parcel of ground, sur k Jones v. Le David, H. 31 G.3 Scacc. [Eyre's MSS.] 4 Gwm. 1336. * (12) This case is alluded to by Lord Hardwicke, C. in Stockwell v. Terry, 1 Vez. 117. "There is an expense in gaining land from the sea, yet the seven years are not allowed, though overflown time out of mind, because the benefit is lasting; but if an additional expense is necessary to make it produce the first crop, seven years shall be allowed." "As to the case of land newly gained from the sea, if that determination can be supported at all, it must be by other reasons than those assigned in the book. If such land is not protected, it must be because it is not within the description in the statute; because it is neither barren, nor waste, nor heath ground, but from the moment of its existence as land, is fertile, enclosed, and capable of tillage, and therefore of a description which the statute cannot attach upon," Per Eyre, C. B. in Jones v. Le David, 4 Gwm. 1338, 9. * See Sherington v. Flewood, Cro. Eliz. 475. rounded by banks'; the uneven or banky part was of little or no value, and produced briars only, the flat part was boggy, wet, and deep, so that cattle could not go upon it without great danger of being lost; when it was drained, and ploughed and sown, the same could not be harrowed by horses or cattle, but the occupier was obliged to employ men to harrow; the uneven or banky part was not capable of being ploughed without its being first dug; the crops produced during the years for which the plaintiff claimed tithe were so bad, and the profits arising from the cultivation had fallen so much short of the money expended, that it would not be possible for the defendant to be reimbursed for the same in twenty years. Eyre, B., sitting for the chancellor, held that this was protected by the statute. In a case where it appeared, that an ancient warren and sheep-walk of 107 acres, in which were some furzes, had been ploughed and denshired, and produced a crop of the value of 2407.; it was holden, that the land was not suâpte naturâ barren, but profitable land. See the like determination as to a common field for sheep, &c. which had been overrun with brushwood, briars, and other weeds". So where a wood had been stubbed and grubbed up, and made fit for the plough, and employed to the purposes of arable land, it was holden, that it should pay tithe presently, for wood ground is terra fertilis et fœcunda. The rule of law for determining what is barren ground, is, whether the land is of such a uature as to require an extraordinary expence in manuring or tilling, to bring it into a proper state of cultivation, and not whether it is or is not in its own nature so fertile as after being ploughed and sown to produce of itself, without manuring or tillage, a crop worth more than the expence of ploughing, sowing, and reaping. Of the Persons to whom Tithes are due. Prima facie all tithes not appropriated belong to and are due to the rector of the church of that parish wherein they 1 Byron v. Lamb, in Ch. 4 Gwm. 1594. m Bourscough v. Aston, per Dolben J. 1693. Bull. N. P. 191. n Stockwell v. Terry, 1 Vez. 115. o Res. H. g Jac. C. B. 9 Inst. 656. Sea also Bunb. 159. Anon. Freem. 334. Warwick v. Collins, 2 Maule & Selwyn, 349. Ld. Selsea . Powell, 6 Tauut. 297. S. P. P arise. But the parson of one parish may claim by prescription a portion (13) of tithes in the parish of another. Extra-parochial tithes belong to the king, who is a mixed person', and capable of tithes at the common law in pernancys. Antecedently to the statutes for the dissolution of monas teries, spiritual persons only, or a mixed person, had capacity to take tithes; mere laymen were incapable of them', except in special cases, as in the case of Pigot v. Heron", Cro. Eliz. 599. 785. cited in 2 Rep. 45. a. where it was adjudged, that a lay person, owner of a manor, might prescribe that he and all those whose estate he had in the manor of Dale, in Dale, from time whereof, &c. had paid to the parson of Dale, for the time being, a certain pension, yearly, for maintenance of divine service there, in satisfaction of all tithes within the same manor, and further prescribe in a que estate in respect of such pension, for all the tithes within the manor. Since the statutes for the dissolution of monasteries, the tithes which were appropriated to the monasteries so dissolved, are become lay fee, and laymen are capable of them in pernancy, not quâ laymen, but as the derivatives of the ecclesiastical persons to whom they formerly belonged. As laymen were incapable of having any tithes until the dissolution of the monasteries, there cannot be any ancient descent with respect to tithes : A rectory in Kent', formerly belonging to one of the dissolved monasteries, having been granted by Henry VIII. to a layman, to be holden in fee by knight's service in capite; it was adjudged, that although the lands were descendible ac (13) Portions are the remains of those arbitrary consecrations of tithes which took place before the settlement of the parochial right of tithes. The precise time at which the parochial right of tithes was settled cannot be ascertained; according to Sir Simon Degge, it was settled by a perpetual constitution early in the thirteenth century. cording to the custom of gavelkind, yet the tithes must descend to the eldest son, according to the rules of descent at the common law, A parson shall not pay tithe for his glebe to the vicar; for ecclesia decimas solvere ecclesiæ non debet. But if the parson lets his glebe for years, reserving a rent, the lessee shall pay him tithes. A rector is of common right entitled to all kind of tithes, the vicar can claim against the rector, by endowment only; or prescription and usage, as evidence of endowment. Where there is not any written endowment, and the vicar has been in the perception of all the small tithes, the court will presume him entitled to all small tithes of modern introduction. By whom and against whom an Action on the Statute may be brought, This action may be brought by the rector, or by one or mored farmers of the rectory. If the rector be entitled to two parts, and the vicar to a third part of the tithe, and the parson and vicar, by several leases, demise their respective shares to a third person, such lessee may maintain an action for not setting forth all the tithes, The right to tithes accrues immediately on the severance, consequently this action must be brought by the person entitled to the tithes at the time of severance: Hence, where A. executed a lease of tithes to B. on a day subsequent to their severance, but before the tithes were carried away by the occupiers of the land, it was adjudged that B. could not maintain an action on this statute'. The action can be brought by the party grieved only; hence where this action was brought by the plaintiff for himself and the queen, judgment was arrested". A man, being possessed of a lease of tithes in right of his z Blanco v. Marston, Cro. Eliz. 479. See also Cro. Eliz. 573. a Owen, 39. b Payne v. Powlett, E. T. 23 G. 3. Scacc. 3 Gwm. 1247. Day r. Peckwell, Moor, 915. d Kent v. Penkevon, Cro. Jac. 70. e Champeruon v. Hill, Yelv. 63. Cro. Jac. 68. f Wyburd v. Tuck, 1 Bos. & Pul. 458. g Johns v. Carne, Moor, 911. Cro. Eliz. 621., S. C. wife, as executrix to her former husband", grants "all his right, title, and interest" in the aforesaid tithes to A. B.; it was holden that the grant was good, and that A. B. might maintain an action on this statute for not setting out tithes. If executrix of lessee for years of a rectory take husband, the husband and wife may join in an action on this statute'. As the action on this statute is a personal action, tenants in common of tithe ought to join as plaintiffs; and if they do not join, advantage may be taken of it by plea in abatement, but not in arrest of judgment'. This action may be maintained by executors, for it is within the equity of the statute of the 4th Edw. 3. which gives to the executor an action of trespass de bonis testatoris; but will not lie against executors. Generally the person entitled to the nine parts at the time of severance, ought to set forth the tithe, and if he fails in so doing, the owner of the tithe may sue him, although his interest in the land be determined before the tithes were carried away, provided he remain owner of the corn. If there be two joint-tenants, and one only enter and oc cupy, this action is maintainable against the joint-tenant, who occupied alone. So if there be two tenants in common, and one of them sets out his tithe, and the other carries it all away, the action shall be brought against that tenant in common alone who carried the whole tithe away. If a person buy corn, standing, of the proprietor of a rectory, he must pay tithe, unless he has special words in the contract to discharge him from payment of tithe; and the carrying away such corn, without setting out the tithe, will render him liable to an action on this statute. Of the Declaration. It is not necessary for the plaintiff to set forth his title specially, because it is but inducement to the action; it is suli h Arnold v. Bidgood, Cro Jac. 318. recognized by De Grey, C. J. in Thrustout v. Coppin, Wils. 278. i Beadles and wife v. Sherman, Cro. Eliz. 613. judgment affirmed on er ror. k Greenwood's case, Clayt. 28. m Mr. J. Moreton's case, 1 Ventr. 30. 1 Sidf. 407. 2 Keb. 502., S. C. 1 Sidf. n Kipping v. Swayn, Cro. Jac. 324. 1 Cole v. Banbury, i Sidf. 49. See also q Moyle v. Ewer, Cio. Jac. 361. post. |