These preliminary and explanatory sections may suffice before entering on the subjects of the following chapters which relate to tithe, commons, and other incidents in the possession of property, and the mode in which property may be acquired by will and testament, by mortgage, bankruptcy, insolvency, contract deed, award, bill of exchange, lien, &c.

V. PROPERTY OF MARRIED WOMEN.

At the close of the session 1870, an act became law bearing very essentially on the rights and interests of women. Subsequently to this act, the 33 & 34 V. c. 93, the wages and earnings of any married woman acquired or gained by her in any employment or trade in which she is engaged, or which she carries on separately from her husband, and also any money or property so acquired by her through the exercise of any literary, artistic, or scientific skill, and all investments of such wages, earnings, money, or property, shall be deemed and taken to be property held and settled to her separate use, independent of any husband to whom she may be married, and her receipts alone shall be a good discharge for such wages, earnings, money, and property.

By s. 2, deposits in a savings bank by a married woman are deemed to be in like manner her separate property. Similar security, by s. 3, is given to a married woman's investments in the public funds, not being less than twenty pounds. Like security is given, by s. 4, to the investment in an incorporated or jointstock company by a woman married, or about to be married; application having been made in writing to the managers or directors. Similar securities to a woman married, or about to be, for investments, on application in writing to the committee of management of any industrial and provident society, or benefit, building, or loan society, duly registered under the acts relating to such societies. But if investments have been made with the money of the husband, any right, transfer, or disposition of them can only be made with his consent. By s. 6, all deposits of money in fraud of creditors are invalid. By s. 13, a married woman with separate property liable to the parish for the maintenance of her husband, if destitute. Husband not liable for the debts of his wife, if contracted before their marriage. Married woman having separate property is liable to the parish for the maintenance of her children.

CHAPTER I.

Tithes.

TITHES are defined, by Sir William Blackstone, to be a 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 predial, as of eorn, grass, wood, and fruit; the second, mixed, as of wool, milk, lambs, pigs, &c., and of these the tenth must be paid in gross; the third, personal, as of trade, occupations, fisheries, and the like, of which only a tenth part of the clear gain and profit is due. The great tithes, as of corn and hay, are generally payable to the rector or parson; the small tithes to the vicar. The successful application of the Commutation Act, by which many causes of dispute and litigation have been removed, renders less necessary a detailed exposition of the law on the subject of tithes.

In general, tithes are payable on everything that yields an annual increase, but not for anything that is of the substance of the earth, or is not of annual increase, as of mines, minerals, and the like; nor for creatures of a wild nature, as deer and hawks, whose increase, so as to profit the owner, is not annual, but casual.

Tithe is payable for the pasturing of cattle. Gardens, orchards, and nursery grounds yield a tithe of their produce, if sold in the way of trade; but hothouse fruit, it seems, is not titheable. Timber wood yields no tithe, except when cut down and sold as firewood, or made into charcoal. Fish taken in the sea, or open river, are not titheable; but taken in a pond or enclosed water, they are liable. Pigeons, honey, and bees'-wax, are titheable. So may deer and rabbits, though wild by nature, be titheable by special custom. But chickens are not titheable, if tithe has been

paid for the eggs.

The tithe of milk is the tenth meal, that is, the milk yielded every tenth day.

Barren ground, which has never paid tithe, becomes liable if converted into pasture or meadow land, after the lapse of seven years from the first attempt to make it productive. Headlands, being only large enough to turn the plough upon, do not pay tithes unless grain be grown upon them.

Mills for grinding corn are liable for the tenth of their proffts, if built since the year 1315. Ancient mills not liable to tithes, will become liable if the power of the mill is increased, and then tithe is payable for such increased power.

The tithe of all extra-parochial lands belongs to the queen, in right of her prerogative, Attorney General v. Lord Eardley, 8 Price, 39.

II. PERSONS NOT LIABLE TO TITHES.

Day-labourers and servants in husbandry are not liable to personal tithes. The queen, by her prerogative, is discharged from all tithes. Nor is a vicar liable for tithes to his rector, nor a rector to his vicar. Persons holding the lands of any abbey, dissolved by the 31 H. 8, c. 13. are free and discharged of tithe in as ample a manner as the abbeys themselves formerly held them. It is from this provision that lands, which were formerly abbeylands, now claim to be tithe-free. But this exemption does not extend to land belonging to the lesser monasteries; that is, of monasteries whose landed income did not exceed £200 per annum, and which were dissolved by the 27 H. 8, c. 28.

Lands may be exempt from tithe, first, by composition; and, secondly, by custom, or prescription.

A composition is when an agreement is made between the owner of the land and the parson or vicar, with consent of the ordinary and his patron, that such land shall, for the future, be discharged from the payment of tithe, by reason of land, money, or other equivalent given to the parson in lieu thereof; but the 13 Eliz. c. 10 limits the exchange by restraining all parsons and vicars from making any conveyance of the estate of their churches for a longer period than three lives, or twenty-one years; so that no composition for tithe is good for a longer period than twenty-one years, though made with the consent of the ordinary and patron; nor is it binding on the succeeding incumbent, though confirmed by a court in chancery.

A discharge by custom or prescription is when, time immemorial, certain persons or lands have been either partially or totally discharged from the payment of tithe. In the first case, a modus or compensation, is substituted in lieu of tithe, at twopence an acre for the tithe of land; or an equivalent in work and labour, so that the parson shall have the twelfth cock of hay in lieu of the tenth, in consideration of the owner making it for him; or, instead of crude and unripe tithe, the parson shall have a less quantity, in greater maturity, as a couple of fowls in lieu of tithe eggs.

When land is totally exonerated from tithe, it must arise either from being anciently abbey-land, the property of the crown, or some other cause already specified.

For a modus or equivalent to be good, it must be certain and invariable; it must be beneficial to the parson; it must be permanent and durable; it must be a fair and equitable composition; and till recently it must have existed time out of mind; that is, as before explained (p. 2), from the year 1189; so that a modus for anything introduced into this country subsequently to that year, as hops and turkeys, would be invalid; and clergymen have sometimes availed themselves of the difficulty of proving an un

interrupted usage for so long a period, to resume their tithes, though no reasonable doubt existed that a modus had been originally established.

But the hardship of the law in respect to moduses is abated by 3 W. 4, c. 100, amended by 5 W. 4, c. 83, which renders valid any exemption from tithe due to any but a corporation sole, on proof thereof for thirty years, unless payment of tithe is shown to have taken place prior to such thirty years, or that such exemption was made by agreement; and if such proof extend to sixty years, it is deemed absolute and indefeasible, unless paid by agreement; in case of a corporation sole, the exemption must have taken place during two incumbencies, and for not less than three years during the commencement of a third; but such exemption must be at least sixty years, and three years, unless by agreement.

Besides tithe, various other ecclesiastical dues are usually considered part of the revenues of the church; as oblations, Easterofferings, mortuaries, and surplice fees. These are all either voluntary payments, or due by custom, upon particular festivals and seasons; or upon marriages, deaths, baptisms, and churching of women.

Oblations are certain customary offerings, payable on the death of individuals. Easter-offerings are payable from every person in the parish, of sixteen years of age and upwards, by the master or mistress of the family, after the rate of twopence per head.

Surplice fees are payable for every marriage, whether by banns or license; for every funeral, churching, or christening, according to the custom of the parish.

Mortuaries are claimed on the death of each person in the parish; if a person, after his debts are paid, leave chattels to the value of £6 and under £30, the mortuary is 38. 4d.; if the value of £30 and under £40-68. 8d; if the value of £40-108. Beneficed clergymen are exempt from the payment of mortuaries except to the bishop of the diocese where they hold their benefice and reside.

III. MODE OF RECOVERING TITHES AND DUES.

The ecclesiastical courts have no jurisdiction to try the right of tithes, unless between spiritual persons; in ordinary cases, between spiritual men and laymen, they can only compel the payment of them when the right is not disputed. So, in disputes about tithes, if the defendant plead any custom, modus, or composition, or other matter in which the right of tithing is involved, this takes the question out of ecclesiastical jurisdiction; for the law does not allow the existence of such a right to be decided by the sentence of a spiritual judge, who may be interested therein, without the verdict of a jury.

By 2 & 3 E. 6, c. 13, if any person carry off the great tithe of corn, hay, and the like, before the tenth part is duly set forth, or

agreement made with the proprietor; or if he hinder the proprietor, or his deputy, from viewing and carrying away his tithe, such offender shall pay double the value of the tithe, to be recovered, with costs, in an ecclesiastical court. By a preceding clause in the same statute, treble the value of the tithe so subtracted or withheld may be sued for in a temporal court.

A more summary method is provided by 7 & 8 W. 3, c. 6, for the recovery of small tithes under the value of 40s.; which enacts that, when a person refuses to pay them twenty days after demand, the clergyman may complain, in writing, to two justices of the peace, who, after summoning the party, are to hear and determine the complaint, and give a reasonable allowance for the tithe, and costs not exceeding 20s. Persons claiming an exemption may give security to pay costs, and try the question. When any Quaker shall refuse to pay or compound for his tithes, two justices of the peace may summon him before them, and ascertain what is due from such Quaker, and direct the payment, so that the sum ordered does not exceed £50; and upon refusal, levy the money. A like remedy is extended to oblations and compositions of the value of £10. 7 & 8 W. 3, c. 34; 53 G. 3, c. 127; 54 G. 3, c. 68.

In suits for the recovery of church-rates, it is provided by 3 & 4 V. c. 93, that the judicial committee of the privy council, or a judge of an ecclesiastical court, may order the liberation of any party imprisoned under a writ de contumace capiendo; but no such order to be made without the consent of the other party to the suit, except that, in cases of subtraction of church-rate for an amount not exceeding £5, where the party in contempt has suffered imprisonment for six months and upwards, the consent of the other party to the suit is not necessary, so soon as the costs incurred by reason of the custody and contempt of such party shall have been discharged, and the sum for which he may have been cited into the ecclesiastical court shall have been paid into the registry of the court, there to abide the result of the suit; and the party so discharged is released from all further observance of justice in the suit. But compulsory church rates are now for the most part abolished.

The situation of the London clergy is different from that of the clergy in other parts of the kingdom. In the reign of Hen. 8, continual altercations took place between the citizens and the clergy relative to tithes and ecclesiastical dues. To put an end to these disputes, the 37 H. 8, c. 12, established a commission, at the head of which was the archbishop, with full power to give to their decrees the force of law, if they were enrolled in the Court of Chancery before the 1st of March, 1545. By a decree of this commission, the tithe of houses and buildings is directed to be paid quarterly, after the rate of 28. 9d. for every 20s. yearly rent, and 2. for each of the family, for the four yearly offerings.

By the 22 & 23 C. 2, c. 15, the tithes of all the parishes in