The First Question.

Questions of Tithing, and their Resolutions. The first Question.

1 PArishioners out of their Harvest-fruits, specified under the word Frugibus (be­fore their tithes assigned of the same) diminish their fruits, some one way, some another: admit to godly, or pro­phane uses: or (as their manner hath been) to the satisfying therein their labourers their wages. The question is, whether this be lawful? It is answered, A fraud unto the Church: For this allow­ance (If any such be) not otherwise ought to be made than forth of the Nine parts: and the reason is, Deci­ma debet solui sine diminutione, &c. Tithe must be paid without any diminishing c. Cum h [...]redge [...] mines de d [...]redge [...] cim. Glo. c [...]redge [...] erroris dam­nabilis. Con [...]redge [...] prou. Ang. d [...]redge [...] dec. ver. err [...]redge [...] re calculi.:

2 The parson of the Rectorie of A (jure praescrip­tionis) i. by right of prescription, hath interest in and to the predial tithes of the parish Church of B. where there be converted (into tillage) divers barren, heath, [Page 8] and wast grounds, that never before yeelded any pro­fit to the Church: The question is, (now) of these tithes, and which of the Churches shall have them? It is answered, that the Parish Church of B shall have these Tythes, because they be Decimae novalium, i. a­rising of such grounds that never were manured nor yeelded before any profit at all to the Church: and the reason is, by the foundation of every Church the Tithes in general of that and every parish, are due toCum con­ [...]ledge [...]gat. ubi [...]ledge [...]. & D D. [...]ledge [...]d. their own proper & peculiar Church. Now, for as much as the Church of A could never before be in possession of the Tiths of these wast ground, because they never were in being, and that the law is, that Tantum prae­scriptum Sine pos­ [...]ledge [...]sione. ff. de [...]ledge [...] cap. est, quantum est possessum, & non plus, i. So much (and no more) in prescription, than in possessi­on:Quod [...]ledge [...]0. Sect. fl, ff. [...]ledge [...]acquir. [...]ledge [...]sses. cap. [...]ledge [...]iditis de [...]ledge [...]script. And again, in that prescription is not extended ad futura, i. It reacheth not unto profits of tythable grounds to come [...]ledge [...]an in ult. [...]ledge [...]tabili. in d. [...]cum con­ [...]gat., Summae aequitatis est, &c. i. The premises considered, it standeth with great equity, in this case, that the Church of B should reap and receive these tithes [...]ledge [...]ost. Io. [...]ledge [...]d in d. c. [...]ledge [...]m con in­ [...]ledge [...]t.

3 But note, it is otherwise where one shall be in possession of the Tithe of Corn, or of Pasture, or of Wood, or of any predial Tithes whatsoever arising in the grounds wherein he prescribeth, howbeit after­wards there bee planted or set and sown in the same a­ny strange plant, seed, or herb, that never grew before in these grounds. For example: Millet is sown or Saffron, where corn hath been sown usually and ever before, and as the manner is, in some parts of this land to sow in their Pasture grounds the herb that is called Glastum or Isatis, Caesar writeth of the old Brittans that they used with this herb to smear their faces, to the end to seem terrible to their enemies in war: we [Page 9] call it in English wadde or woad. Again, Apples, or Nuts, be newly planted where never they grew before: and so Ex nemoribus, i. Of woods that be converted to arable grounds: the Tyths in all these cases be paya­ble as before they were of the former fruits, and to whom the former fruits were tythable before, name­ly, to the parson or Church that prescribeth, and the reason is, viz. Praescriptio est realis censenda. i. Ter­ram concernens, non speciem fructuum preceptorum. i. Pre­scription is real, that is to say, respecting not the new or never tythed fruits, but the tythable grounds that bringeth them forth Ancha. in c Cum in tua. de deci. & Ant. But. in. d. c Cum in tua­eod.: In respect whereof, that is, of the grounds, the tythes whereof forepassed have been (without discontinuance or other inter­ruption,) continued and possessed, it is thus affirmed (in these cases) of prescription, viz. prescriptio ex­tenditur ad particularitatem juris apprehensi, sub unico ju­re ut universali, i. Prescription is extended to every particularity of right apprehended, as it were, under that particular, as general Ant. But. in c praeal.. Otherwise it should be in potestate serentis, i. In the owners power (changing the fruits) to prevent anothers right in the Tyths of his certain, known, and tythable grounds: contray to the rule of the law, viz. Id quod nostrum est sine facto nostro a nobis avelli non potest, i. That which is mine can­not (without my fact) be taken from me ff. de reg. iur.. Look the statute De novalibus, i. of barren, heath, and waste ground, 2. Ed. 6. 13. And look the statute for predial Tythes, and Tythable places, 2. Ed. 6. 13.

The Second Question.

The Second Question.

1 OF Woods and wood, contained and spe­cified under the words Silvis caeduis, Lignis, Thenitiis agrorum, some of them exceed the growth of xx. years, and some of them not felled within the memory of man, peradventure not of an hundreth or two of years: there groweth a question of such woods for the Tythes of the same: It should seem, the Parishoner herein may plead for the one (against the Parson) the statute of Silva Cae­dua, that exempteth wood of Twenty yeares growth [Page 11] and upwards, from the payment of tythes: and (for the other) both the Statute and prescription, in that the Tyths therein were never performed: interpreting the Statute no further, then the statute explaineth it self: It is answered by the Canons alleaged, so farre forth (with protestation) and no further, then the statute shall permit, that wood not in use nor apt for Timber is tithable, body or bough, felled or lopped c. Quan­quam. Pro­vin. ang. eo­ubi. glo in ver. exicis.. As for prescription it is answered, Praescriptio locum habere non potest, ubi illi cui jus competit agere non po­test, cum cesset materia de qua experiatur, i. Prescription hath no place, where the interessed (in his right) can make no demand, the matter ceasing whereupon he should work: For example, Of Wood never cut, the Tithe could never be demanded Gloss. cap. Sancta eccle­sia. provin. ang eo. ver. arborum. ad hoc l. arbori­bus ff. de us [...]ft.. But whether the loppings or boots of such trees the which the Com­mon Lawes of the Realm account timber be tythable or not, is not yet decided by that Law.

2 It is a question, when Woods so felled be sold, who shall answer the Tithes, the buyer or the Seller? It is answered, the Buyer Ext de de­cim. c Pasto­ralis. shall answer the Tyth: and the reason is, Decima sequitur fructus, & cum one­nere fruuctum decimae transferuntur in alterum, i. Tythe doth follow the fruits, & fruits be translated into ano­thers right together with the burthen of Tithes c Praeal. eod..

3 Where the Inheritance of a wood is sold the Tithes whereof for certain years forepassed, by the Seller hath been detained and wrongfully substracted from the Church, It is a question whom the Parson may implead: It is holden he may implead the one or the other at his own choice Pet dc an­cha. & D. D c. cum homines eod., but he can recover but of one Ar ad hoc de re iud. t. Bona fide. li. 6. Glo. pro­vin. Ang. de decim ver. asportant.. But by the statutes of the land, the Seller onely, in this case, shall be impleaded and sued unto treble damages, 2 Ed. 6. 13. And not the [Page 12] buyer who took not the Tythe away.

4 De Turvis, i. Of Turves, they be tithable, and comprehended under the word Lignis, because they be so applied, that is, for firing ff. Deleg. 3. [...]ledge [...] Ligni Sect. [...]ledge [...]ignorum verb [...]ledge [...]uid mirum., and reckoned in the num­ber and amongst predial Tythes.

The Third Question.

The Third Question.

1 OF Pasture grounds, when they be fed, it is a question how the tithe shall be answered? It must be considered whose the grounds be, whether the owners of the cattel that fed them, or a strangers of another Parish. In the first case, if the cattel be such that yeeld profit to the Church, the Tyth is satisfied in the fruits of the beasts Inno ext. de decim c. commissum. In the other case, it must be considered of the stran­ger, whether he selleth or giveth franckly to the own­er of the cattel, the pasturage of his grounds: the stranger if he sell it, is answerable for the tenth Pen­ny: the Parishoner, if freely he receiveth it, is answe­rable for the estimation c. Procal. eod. But note, the estimation shall not be answered, but where the grounds with beasts be fed, Nulla [...] Ecclesiae utilitatem alias, &c. i. Yeelding otherwise no profit at all to the Church, of which sort be Horses, Oxen, and such other barren Beasts. In other profitable cattel, the tyth is intended (as aforesaid) to be answered in the fruits Juxt. notat. per Inno ut sup. glo. ver. dividenda prov. an. co.. But note, that generally the occupier of the pasture is to pay the Tithe, and so is the custome.

The Fourth Question.

The Fourth Question.

1 DE Fenis, i. Of Hay, according to the expositi­on of the word, the tythe is payable, viz. Of the grasse withered or green, perceived and taken in Meddow, Pasture, great or small, or in other place, places: or Angles (so with­in the limits of the parish) wheresoever Prov. ang. c quoniam propter volu­mus.: Question hath been moved of this Tythe to this effect, that is to say, whether it be predial or personal: It is answe­red to be predial Ancha cap pervenit. eod: For how be it the industry and la­bour of the person may seem and be alleadged more to prevail (as they tearm it) in the making thereof, then the nature of the ground, yet in that it is per­ceived of the ground, and gathered of, and from a place certain, in some one or other known, certain, and limited Parish, it is tithable as other predial tithes be Ad hoc e­pastoralis. ext eod., that is, to that Parish Church where the grounds doe lie. Without Deduction of charges.

The Fifth Question.

The fift Question.

1 OF profits and increase of such profitable beasts before mentioned, & specified in particular under the words Lana Agnis, question is mo­ved to this effect, there be in one family divers persons having to the number of 3, 5, 6, 8, or 10. Lambs or fleeces of wool more or lesse, their sheep be depastured and so be reputed part and parcel of the flocks wherein they walk, couch, and do feed: The question is of their Tythes, whether they be tithable with the flocks, or in their several parcels? It is an­swered, In their several parcels, and the reason is, Animalia quae gregibus alienis admixta sunt, remanent eorum propria non quorum sunt greges, sed quorum sunt animalia: i. Beasts intermingled with other mens flocks, do remain notwithstanding proper and peculiar unto those, not whose be the flocks, but whose be the beasts c. Cle. c.. Howbeit in Countries where persons such as Sons, & daughters, in their fathers power, government, maintenance, and finding, shal have such beasts or cattel intended in law, and counted in bonis profectio & adven­titio, i. accruing and growing by their fathers or friends by the mother side, by gift, procurement, or other­wise, in which beasts their fathers are interessed, in the use and fruits, the bare property remaining to the children, the Tithes of these beasts shall bee rec­koned with their Fathers Arg. ad hoc ff. per quas personas no­bis Sect 1., and not in their several [Page 15] parcels, and the reason is, Vt ipsarum rerum quae in fructu sunt et patri adquiruntur, pater solvat dicimam, &c. i. Of things in increase and procured to the fa­ther, so shall the father be answerable for the Tythe Glou. prou. ang. de dec. ver. decima lanae., the property notwithstanding reserved to him or her to whom it belongeth, his son or daughter. But for that Patria Potestas, i. That legal power and preroga­tive of Fathers is not in use, neither yet Profectitium nor Adventitium peculium are known in England, the beasts of Sons and Daughters here mentioned (in re­spect of their tyth) shall not be reckoned with their Fathers Cattel, but as the Cattel of other stran­gers: and what is given by the Father to the Sonne or to the Daughter, is their own, except the Father by expresse words shall reserve the fruits of such cat­tel so given, to himself.

2 Where such cattel be removed from Parish, to Parish, and question be made what proportion of the Tythes is due to each Parish, the custome of the place must be observed: otherwise the law is, viz. Quaelibet Ecclesia pro rata temporis portione decimas percipiet. i. Every Church shall receive it tithes by rate and pro­portion of time: but the question is, of what space this rate and proportion is meant? It is answered, of xxx. dayes, and so to be rated by Thirties from Thir­ty to Thirty, Minori trisginta Dierum spatio in rata tem­poris minime computando, i. Under or lesse then the space of xxx. dayes not to be counted in rate and pro­portion of time Text. pro­uin. ang. ca­quoniam vt audinimus. eodem.: for example, The parishoner hath forty sheep which yeeld him at shearing day foure­score Pounds of Wooll: that Church is interessed in­tirely in the tithe in whose Parish the whole year they couched and depastured: that Church in the half, that is, in the tithe of 40. pounds where the halfe [Page 16] year they couched and depastured: that Church in twenty pounds where they couched three months and depastured: and so ratably four moneths, five moneths, more or lesse accordingly: and that Church in whose Parish they couched and depastured but One Month, that is xxx. dayes, but in the tythe of the twelfth part thereof, that is, of the whole Fourscore pounds, but the tenth of Six pounds and half, and under thirty dayes as afore is said, no allowance at all c. Ver sed oves.. But note, if the whole time they couch in one Parish, and depa­sture in another, the Tyth shall be devided.Sect si vero. [...]ledge [...]onst. praeal.

3 If peradventure they come from a strange and unknown place to any Parish to be clipped or shorne, there the tithe must be paid, except it may appear the same to be satisfied to the Church whence they came.Sect & si o­ [...]ledge [...]es const. ead.

The Sixth Question.

The Sixt Question.

1 FOr tythes in profitable beasts, the Parson may expect the fall of the Tenth the next year fol­lowing, if the number in any one year a­mounteth not to ten, according to the text of the constitution Text pro­vin ang. co. quoniam prop­ter de decim., viz. Vel expect et rector usque ad alium annum donec plenarie decimum agnum possit recipere, si ma­luerit: i. Or let the Parson (if so he had rather to do) expect another year, till he may fully receive his tenth Lamb. Now it falleth out the Parson useth his liberty and refuseth his Lamb at seven, and his half pence at Six, and the Parishoner the year following hath never a Lamb at all: The question is, how the tyth shall be satisfied? It is answered, (in this case) the Parson hath no remedy in law, and the reason is, a principio male eligendo fuit in culpa, ergo in hoc sibi imputetur, i. He made his choice but ill at the first, which was his own default, and therefore he must blame himself Arg. ad hoe inst. quod cum eo qui in alt. pot Sect. caeterum au­tem & glo. const. prov. praeal. verb. possit recipe­re.. Yet Lyndwood affirmeth in this case, That in regard of the Church, in respect whereof tithes ought not to be lost, and in regard of the party himself, the owner of the fruits, who without sin cannot detain by any colour the rights from the Church, though the Parson (for his own sake) cannot relieve himself Jure Actionis, i. By right of action: yet for the Churches sake Officium Judicis, i. The judge his office may be desired c. verb. const. praeal..

2 Yeaws be sometimes removed from grounds to grounds, from parish to parish, the question is, (in this case) of the right of their tithes: It is thus an­swered [Page 18] by the text law c. Quoniam ut audivimus. eonst. Provin. ang Sect agni. eod.. viz. The tithe of Lamb is pay­able in manner and forme as be the tyths of calves and colts and such other like tithable increase, mentioned to be Pigge, kid, &c. of which the Law determineth thus, viz. Habita ratione ad loca diversa ubi gignuntur, oriuntur, et nutriuntur, & ad moram quam traxerint eis­dem particulariter decimentur, i. They be tithable by rate and proportion (particularly) to the several Churches in whose parishes they were ingendred, brought forth, and nourished Ca. & Sect. prae.: for example, The Yeaw goeth five moneths with her Lamb, they put them together the Male and Female the last of September, where they coupled they remain one moneth: they be remo­ved to a second parish, to a third, to a fourth, and to a fifth, where they be depastured several months: in this case Vnusquisque pro tempore suo: i. Every Parson for his time Glo. c. & Sect praeal. verb. particu­laritur., that is (the several times and places consi­dered) the several Churches in the tyths have several rights accordingly C. & Sect prae..

3 And touching the question of their tithable time, it is answered thus, Faetus ablactatus esse debet antequam pre­stetur, i. They must be, weaned, weanable, or of strength to live without the damme Rebuff, co., except custom hath obser­vedq. 6. un 30. Inno. host. & alii in ca. cum homines. eod. therein a time certaine, the which where so it is, there it must be continued. Look custom the 6.

The Seventh Question.

The Seventh Question.

1 MIlk and Cheese, viz. of Kine, of Sheep, or of Goats, they be reckoned as In pecudum fructu, i. In the increase of such cattel ff. de usufr, l. in pecudum inst de re. di. Sect in pecu­dum., as also be Lana & faetus, i. Wooll, Calfe, Kid, and Lamb, whereof mention is made in the fifth and sixth questions before: and touching question here­in to be made, suppose of the Milk when it is percei­ved and taken, of the nine parts thereof (when the tenth is duducted) there be made ten cheeses it is an­swered, in this case, The cheeses are not to be tithed de reg. iur. in 6.: for cheese is not tithable but where milk is not tithed: and so of the other: briefly, they be tithable either of them tempore suo, i. In their seasons c. quoniam propter prae. de decim., and so long, and so soon, as either Milk or Cheese shall be perceived and taken (in their kind) by the Parishoner: there can be no custome of intermission to the contrary. Look Custome, the 3. And what the Law of custome may be in this case, followeth here the 3.

2 Sometime these cattel be depastured in one Pa­rish, and couch in another, in this case it may be de­manded, What the law determineth of the tyth? It is answerd in the text Law, viz. Quod inter Rectoris di­vidatur, i. In this case the Parsons shall divide c Quoniam ut audivimus. praeal. Sect de­cima..

3 Question also herein is moved further in Law,c quoniam propter prae. Sect quid vero., where such tythes be payable in kind, and the number of cattel so small as Lyndwood supposeth in cap. & Sect praeal verb. modicitatem. of some one or other Parishioners, which have not only three, two, or peradventure but one onely Cow, and those, or that to be milked but alternis diebus, i. But each other day, by reason whereof the parishioner can make no cheese at all: what is the Churches right in this case? It is answered in the text Law c. Sect praeal. [...]ledge [...]n fin.. viz. Consuetudi­ni locorum duximus relinquendum, i. The custome of the place must be observed: provided the custome be, that Certum quid soluatur, i. That somewhat be paid in con­sideration and liew ext. e. ti. c. [...]ledge [...]n aliquibus. for custome herein (as in all other cases of tything) cannot exclude solutionem decimae, i. It cannot intirely take away the payment of the tithes of such profits as arise, as may appear in custome the third, onely it may limit solutionem decimae, i. Custome may moderate the payment of Tithes. Look custome the fourth. Hither (by a constitution provincial of Eng­land) also be referred Calf, Colt, Pigge and such like, that is, when their number is so smal that they cannot be tithed: it is the Chapter Quoniam ut audivi­mus, and Paragraph quid vero, which constitution Lyndwood affirmeth upon the same Paragraph, that it extendeth not to Wooll and Lamb, but citeth there another expresse and peculiar ordinance for the same, viz. If the Parishoner shall have six Lambs or under, he shall yeeld for his tith for every Lamb a half-peny: if seven Lambs, he shall yeeld a Lamb for his tithe, and receive three half-pence: if eight, a peny: if nine, the Parishioner (onely) receiveth a half-peny of the Parson, or the parson may expect, according to the sixt question before. Et ita intelligendum est de decima Lanae. i. The same ordinance and provincial constitu­tion [Page 21] is had of Wool. It is the Chapter quoniam prop­ter, and Paragraph De nutrimentis, in the title of tithes.

4 Post festum, &c, i. after the feast of Saint Martin in winter, sheep be eftsoons removed from parish to parish, or else they doe continue in one and the same parish from that feast till shearing day ensuing: the question is, of their tithes? It is answered, they be tithable thus, viz. Habita ratione ad numerum ovium Pascua estimentur, i. The pasture in this case must be considered (for want of their milk in this season) by the head or number of the sheep that depastured in them c. Quoniam ut audivimus praeal Sect quod si prov. a g. c, and so shall the tithe be rated and yeelded c. Sect. prae. c: by rate and proportion of time (by the moneth Gloss. c. Sect praeal. verb. estimentur.) as Lyndwood inferreth, and as it is said of thirty dayes, and by thirties and so from thirty to thirty, as in the first question before of Wooll.

The Eighth Question.

The Eighth Question.

1 FRuits of trees, viz. Apples, pears, wardens, &c. the question is of their tithable time: it is answered, Statim fructibus collectis, i. So soon and im­mediately when the fruits shall be gathered c. cum homi­nes eod., and the reason is, quia minus soluit, qui tardius soluit, i. He di­minisheth [Page 22] his duty that delaveth the timesi cui in si­ [...]ledge [...]ff. de verb. [...]ledge [...].: if therefore: the Parishoner shall gather his fruits, and neither pay the Tythes presently, nor monish the parson to receive them, but subtract them, or that (otherwise) they be impayred or lost, tenebitur, saith the Law; that is, The Parishioner is bounden to what satisfaction look the Statute 2. Ed. 6. 13. for fruits be Tythable, and pre­dialcum ho­ [...]ledge [...]nes prae. eod. [...]ledge [...]xt. [...]ledge [...]. 1. e. ad A­ [...]ledge [...]stolice. c. [...]ledge [...]rvenit eod.

The Ninth Question.

The Ninth Question.

1 Seeds and hearbs, viz. of Flax, Millet, Hemp, Leek, Onion, Rape, Percely, Sage, Mint, Rue, &c. comprehended under the words Seminibus, Herbis, Curtilagijs, they be tithable c. quoniam propter prae. prov. ang c., as they be perceived and taken in Gardens, or in the fields, either of the seed, or of the herb before the seeding time Concor. ext. eo. c. ex parte canonicorum, Nisi parochi­ani competentem fecerint redemptionem, i. Except the pa­rishioners sufficiently shall redeem or compound for the same c. quoniam propter prae., these be Minutae decimae, i. Small tithes ac­cording to the Evangelist Lu. 1 [...] Ho­c. ex multipli­ci. eo., viz. Ye tyth mint and Rue, &c. And therefore in them no great question to be made.

The Tenth Question.

The Tenth Question.

1 BY the chapter Sancta Ecclesia, in the pro­vincial Constitutions of England, and title of Tyths, the tyth of Mast and of other such wood and wilde fruits, be payable, viz. Si vendantur, i. If they bee sold c. Sancta ecclesia pre [...]redge [...]: that is, (as the glosse inferreth) of the tenth peny, if they be sold; otherwise, that is, if Swine franckly & freely received & fed, without con­sideration of charges to the owner, in this case Trans­eunt fructus cum onere, i. The fruits do passe with their charges glo. in d. verb. si ven [...]redge [...] ­dantur. ubi [...]redge [...] hoc exteo. c [...]redge [...] pastoralis, [...]redge [...] Inno ext. c. commissum., viz. with the burthen of tythes.

The Eleventh Question.

The Eleventh Question.

1 QUestion hath been moved of the tyths of Mils, Parks, Ponds, Warrens, dove­houses, and Bees, to this effect, viz. Whe­ther they be predial, or personal? it is answer­ed, They be predial, and tithable without deducti­on of chargesDD. in cap. [...]ledge [...]astoralis. & [...]ledge [...]liis ca. eod., for the reason alleaged in the fourth Question before. And they be tithable thus; that is to say, not the tenth of the rent for mills (as they tearm it) the tenth peny, nor for Bees, the tenth Bee, or warm, or Hive, but De proventibus molendi­norum, i. The tenth measure of Corn for Millsc: quoniam propter, pre-Sect de pro­tentibus & ibi [...]ledge [...]lo. verb. inti­ [...]ledge [...]re., and so for Bees, the tenth measure of hony, the tenth waight of wax, briefly, De cera & melle, i. Of Hony and waxHost. & alii. [...]ledge [...]. nuntios. c.. And the law and reason is of these tithes, especially of Mills, as of other predial tithes, where­of (for example) it is said, Transit herba pasta cum o­nere suo ad dominum bestiarum, i. Where grounds or pa­stures be demised, or their herbages sold, the owner of the beasts is chargeable with the tythe Ad hec ff. [...]ledge [...]e usuft. l usu. [...]ledge [...]ructu legato­ [...]ledge [...] item si [...]ledge [...]undi.. Especial­ly for the practise of England, look what is said in the Third Question before. Hither be referred Parks, Ponds, Dove-houses, &c. for Fructus transit cum onere suo, i. Fruits be lyable to their charges. Look in the Second Question before, 2.

The Twelfth Question.

The Twelfth Question.

1 THe profits that be mentioned & contained under the words Aucupiis, Venationibus, Pis­cationibus, i. Of fowlings, Huntings, fishings, question hath been moved of the tythes of the same, viz. The Parishoners of N. one of them fowleth, another hunteth, the third fisheth, in the fields, grounds, and Rivers of B. the question is of the tithes, of their advantages taken, and which of the Churches be Interressed in the same, viz. whether the Church of N. where the Parishoners inhabit, or the Church of B. where the Profits were taken? It is thus answered, viz. If the Parishoner had of the owners of the places franck and free liberty to fowl, hunt, and fish, the Church of N. that is, their own parish Church shall be intirely interressed in them, as in personal tithes Inno. in ca. non est, eod. & ibi Host. verb. de vena­tione.: but if any consideration be required, either in money or in part of their gain, that profit onely re­ceived by the owner, is predial and tithable to the Church of B. that is to say, in that parish where the fields, grounds, and Rivers do lie Inno. in & Host. cap. & verb praeal.. De caeteris vero, i. Of the residue, that is to say, of the clear gain of these Beasts, fishes, and fowles, all charges and ex­pences, [Page 20] in, about, belonging, and concerning these profits taken, deducted D D. praeal. in ca. pastora­lis, eod., the Parishoners that took them be chargeable withall to their parish Church of N DD. in d. c. Non est ibi i­dem not per D D. prae. in decimis a vium & fera­rum gloss. in pre. c. quoni­am propter Sect de piscati­onibus provin. ang. eod. verb. debit o modo., mentioned before: and the reason is, the Fowls, Beasts, and Fishes be taken artificio, ministerio & opere hominis, i. By the art onely, labour, and industry of man, from whence proceedeth personal tiths c. ad aposto. licae. eod., pay­able onely where the Parishioners inhabit c questi 16. q. 1.. But if the consideration mentioned here, required and taken by the owners, commeth not by art, or industry, but Ex hu ro, i. By way onely, and means of the ground Inno. Host. [...]ledge [...]n c. non est praeal eod. verb. de vena­tione., from whence do arise all predial tithes c. 1. c. ad a­postolice. c. pervenit. prae. eod.: payable one­ly in the place and parishes within whose bounds and limits they are cap sin. de parochiis. . Thus they be divers, these tithes, diversly respected, that is to say, predial or personal; note the difference. Note also, that where such tithes bee demanded, it is where such art, industry, and travel is answered and rewarded, not with pleasureRebuff. eo. [...]ledge [...]. 8 nu. 17., but with profitAncha. in [...]ledge [...]raeal. c. non [...]ledge [...]st. co. col. 2.. Question hath further been moved of these profits and advantages aforesaid, to this effect: viz. the parishioners mentioned of N. had franck and free leave and liberty to hunt, fish and Fowl within the fields, grounds, meddows, rivers, and running streams of B. mentioned before: they took, preserved and reser­ved alive their beasts, fowls, and fishes, and so they con­veyed them to certain their own proper and private grounds, within the bounds, compasse, and limits of another parish, then either of N. where they dwell or of B. where they took them: they include them (there) these beasts, fowls, and fishes, and compasse them within parks, Warrens, ponds, pooles, houses, such as be mentioned and comprehended under the words Vivariis Columbariis, in the eleventh question before. Thus they feed and nourish them, and they [Page 27] breed, and increase in their kindes: now, in that these inclosed and limited places do alter and change (in law) the nature of the profits of the nourished Crea­tures within them Rebuff. eo. nu. 14. & 15. ad hec Inno. & Pan. in d. c. non est., which of the Churches have right to the Tithes? It is thus answered, viz. They were included at the first as they were taken, that is, by art and industery of man Inno. & Host. in d. c. non est.: howbeit they increase not by industery and art, but by the nutriment and nou­rishment of the waters and grounds, where they live ex sola gratia Dei, i. Of the meere grace and bounty of God D D. prae. in d. c. non est.: and therefore for the rate, value, and propor­tion of themselves, they remain these profiets as they were taken at the first, that is, personal: Tithable to the Church of their Parish that took them Pan in cap. praeal. & ibi An. de intel­lectu Hostien­sis ad idem.. But their increase is predial, Tithable to the Church within whose limits they be, and be fed, and nourished Pan. & D D. in d. c non est.. The circumstances of these tithes mentioned in these cases, according to that worthy and of famous memo­ry Hostiensis, do make them neither meerely predial, nor meerely personal, but mixt Tythes Host. in ca. praeal.: payable not­withstanding as predial and personal diversly respect­ed as aforesaid. So, consider thus (briefly) of these Tithes, that is to say, considered as they be included within compasse, limits, and bounds (from their na­tural liberty) tyed and restrained to the same, as in ponds, parks, warrens, houses, and in such like li­mited places, they be predial Tithes: but considered as they enjoy (at their will) their natural liberties, as Fishes, the Sea; Fowls, the Aire; and Beasts, the Fields; in that they are not reckoned of any place certain, their Tithes be not predial but personal: touching therefore question herein to be made, to what Chur­ches they be due? It is answered as of predial and per­sonal Tithes: that is, the one to that Church in whose [Page 28] Parish these limited places aforesaid do lie that doe make them predial; the other to that Church in whose parish the Parson doth inhabit that maketh them per­sonal. And this is the difference.

The Thirteenth Question.

The Thirtenth Question.

1 SWanns, Geese, and Ducks, be distinguished thus, viz. whether they bee Volantes, i. whether they be wilde and do flie, or be tame, or not: this considered, the profits be tithable accordingly: for example, The Cygnets, Si nascuntur in loco certo, & suscipiuntur a loco certo, i. If they be brought forth and so be taken in and from a certain and known place, they be predial and tithable, as predial Tithes: if from incertain places, they be personal, and so they be Tithable, viz. as personal Tithes Gloss in c. sancta Eccle­sia prae. Sect. 1. [...]ledge [...]er cignorum.. It is affirmed of them, as of beasts, fowls, fishes DD. ext. c. it c, non est., in the question last before. Hither by the chapter Sancta Ecclesia, in the provincials of England, be referred Geese and Ducks.

The Fourteenth question.

[Page 29] The Fourtenth Question.

1 DE Ovis, i. Of Egges, it hath been moved whe­ther they be tithable in such places where tithes be yeelded of Chickens? By the writ­ten law it may be answered, as of milk and Cheese in the seventh question before, the 1. Howbeit Custome in this case prevaileth, as experience sheweth in some parts of this Land Gloss. in. d­e sancta ecclesia. cap. quo­niam ut audivimus ver. pulli..

The Fifteenth question.

The Fifteenth Question.

1 TRades, Crafts, and Manual Occupations, they be personal, and of the profits doe arise meer personal tythes: touching therefore first their tythable place, it is answered in the Twelfth question before. Of their tythable time, it is answered in fine anni, i. They be payable at the end of the year Gloss. in c. revertimini. verb. ann us., and as our custom is, at Easter. Of persons that be chargable with these personal Tithes, it is answered of such persons, which of custom have, or of right ought to have paid their personal Tithes 2. Ed. 6. 13. [Page 30] Look the Summaries of the Statutes ensuing. There are of these personal tithes (in divers cases) Opinionum conflictus, i. Diversities of opinions Rebuff. q. 13 nu. 44. & ibi. cit. But. in parochianos infin. eod. but herein they agree, viz. Hae Decimae personales, magis in difficultate, & subtilitate, quam utilitate consistunt, i. They are these personal tithes, more intricate then profitable Host. in ca. pastoralis in fin. eod. & 10. detur. cre. in revertimini praeal. nu. 12. ver ad septi­mum. 16. q. 1. one­ly this (to conclude) must bee noted, that is to say, all persons (consideration had as afore is said) be bounden to offer their personal Tithes to the Church, but the Church is forbidden (of all persons) to receive them Host in ca: ex transmista. eod. arg. ca. Oblationes. 90 dist Deut. 3. for example, The Harlot, the Robber, the Usurer, &c. they bee not exempted, but the Law rejecteth them, their personal tithes, and Oblations: Non inferas merce­dem meretricis, &c. i. Thou shalt not bring the hire of an Whore, nor the price of a Dog into the House of the LORDe miror 17. q.4. And for the other, quaestus fit ex peccato, i. Their gain ariseth of sin: the Church is therefore forbidden to receive of them, Ne ipsorum videatur appro­bare turpitudinem, i. Least the Church should seem to approve their Iniquitiesc. si tantum 6. q 2. hec Rebuff q 5. nu. 18. 8. 19.