was because the miller can grind a double quantity. There were formerly two fulling mills and a corn mill under the same roof; the fulling mills are now turned into two new corn mills; it was the same thing as though the defendant had erected two new mills. It became necessary to shew so much, that there was a custom in the parish for fulling mills to pay tithes, otherwise they did not properly pay them. The Lord Chancellor added, that the only colourable thing was, that there was an ancient modus for the land, and that the mill was but an accidental quality. But being pleaded as a conjunct modus for both land and mill, the plea must be overruled.(i) Upon the authority of this case, the Master of the Rolls (Sir Wm. Grant) decided a suit, in which it appeared that an ancient corn mill had been rebuilt, and two pair of new stones added. An account was decreed as to the two pair of new stones, and the Judge took occasion to observe, that the cases upon the subject were not easily reconciled.(k) A fortiori, if two fulling mills be under one roof, and a rate tithe be paid for the mills, and then an alteration be made, one of them being converted into a corn mill, the rate is gone, and tithes must be paid in kind. If, again, you have but one pair of stones in your mill, for which a rate is paid, and another pair is added, new tithes must be paid in kind.(?) But where a third pair of stones had been added to a mill which originally had two pair only, the whole being carried by the same frame and wheels which carried the former stones, and the mill not being able to work more than two pair at the same time, the Court established a modus which had been *alleged, and directed the original bill to be dismissed with costs, both in law and equity.(m) [*355] With the exception of the case in Carthew, it then appears, that an alteration in the power of the mill, so as to occasion the grinding of a larger quantity of corn, will destroy a modus, and introduce a demand of personal tithes; that is to say, a charge of that description, all expenses being first deducted. Another kind of alteration has, nevertheless, been presented to the attention of the Court. A case came into the Exchequer, where an ancient water corn mill had been occasionally used as a lead mill. The plaintiff brought his bill, as vicar of Deptford, for the tithes of two mills, the one an ancient water mill, and the other a wind mill erected about thirty years. The water mill was shewn to have been a very ancient mill. The southern wheel of the mill was, however, used as a lead mill about forty-five years since; it was subsequently used again wholly as a corn mill. The defendant never lived in the parish of Deptford. It was urged, that by the change from a corn mill into a lead mill, the exemption was destroyed, and that it could not revive by reconverting it into a corn mill. But the Court were of opinion, that the mill being the substance and thing exempted, the using one of the wheels as a lead mill, for a time, would not put an end to the exemption. Had the ancient mill, indeed been wholly used as a lead mill, there would have (i) 3 Atk. 17, Talbot v. May. S. C. 2 Gwill. 782. () 1 Brownl. 32. been a suspension, but not an extinguishment of the privilege.(n) If a greater profit had not been derived from the lead mill, this decision is not inconsistent with the preceding authorities. There must be some derivable profit. Where the plaintiff claimed the tithes of two mills, and it appeared that one was an ancient mill, and that the other had been a tacking mill, but that the defendant had converted it into a corn mill, and had used it for the sole purpose of grinding oats for his hounds, the Court considered the latter mill was not titheable, inasmuch as it yielded no profit, and of course, held the ancient mill to be exempt.(0) mill, he is not liable to And thus it was deter So if a party grinds his own corn at his own tithes, although he sell the corn to the public. mined in the case of a miller who ground his own flour for sale. (p) In another case, the decree directed the *defendant to account for [*356] the profits arising from the corn ground for hire only, and the Master to deduct the reasonable expenses of working the mill.(g) It appears from the above decisions, that mills used for the grinding of corn and grain, by which a profit is gained, are subject to tithes; but it still remains open to our consideration, whether all mills are so liable. The better opinion seems to be, that fulling mills, copper mills, indeed, all mills which do not grind meal for food-are exempt from tithes, unless by special custom.(r) Thus, where tithes were demanded for a copper mill, a prohibition was granted, for that the gain arose from the labour and industry of man; and the same exemption was said to apply in favour of a fulling mill, shaving mill, glasshouse, &c.(s) A prohibition was prayed to stay a suit in the Spiritual Court, for the tithes of a fulling mill; and it was suggested, that the defendant fulled forty cloths every week, and that he gained two shillings by every cloth. The prohibition was granted upon a surmise, that by the law, tithes were not demandable in respect of such mills, for the gain comes only by the labour of men; and tithes, said Doderidge, J., are not payable except for things renovant, &c.(t) So also it was said, that tynn mills, lead mills, or plate mills, or rag mills, should pay no tithe, and that the usage of the country should be respected in this matter.(u) However, the exemption of fulling mills was not agreed to, as it seems, without a struggle. For it is asserted, that two Judges(v) had been of opinion, in the 12th Jac., that a tenth penny of the gain should be paid in respect of a fulling mill, being in (n) Id. 974, Wilson v. Mason. (0) Id. 1022, Hicks v. Triese. (p) 3 Id. 974, Wilson v. Mason. S. P. 2 Sim. 305, Browne v. Wolsey. S. P. Id. 297, Townley v. Colegate. (q) 1 Younge, 596, Austin v. Elphinstone. (8) Litt. Rep. 314. (7) See Id. 979. (t) Cro. Jac. 523, Danderidge v. Johnson. S. C. semb. 2 Ro. Rep. 84. But it seems that the prohibition had been denied a few years before, in a suit between these parties. 1 Ro. Ab. 641, pl. 19. (u) 2 Ro. Rep. 84. (v) Warburton and Nichols. the nature of a predial tithe; and so of a corn mill, the tenth dish of corn.(w) And a case is cited where that doctrine was actually held.(x) But Mr. Justice Doderidge subsequently observed, that if this were to be considered as a predial tithe, the person who sheared the cloth, and the dyer also, might be called on to contribute for tithes, in regard of the same cloth; and he added, that it must be personal tithe, because it accrued only by the labour of man. (y) In another report of the case, it [*357] appears that the learned Judge observed upon the inconvenience which would ensue, if fulling mills were held titheable; because, in that case, paper mills, iron mills, and tin mills, might be charged, and he did not know in what manner tithes could be paid of fulling mills, since it would not be reasonable that they should be paid of the tenth cloth.(z) "The generality of this reason," says Sir Samuel Toller, speaking of the above exemption of fulling mills, by reason of the spring of their profits from manuel labour, "would not only preclude the profits of any manufacturer from being titheable, but would also exempt fish."(a) The learned author, therefore, rather prefers to consider the nonliability of these mills as a prima facie exemption, but that they may, nevertheless, be subjected to tithe, by shewing a custom.(b) And so, again, Gibson, in his Codex, lays it down, that corn mills only are within the act of Ed. II.; tithes being due for fulling, tin, and other mills, if at all, by custom.(c) Lord Coke had expressed his opinion. doubtfully upon the subject; although, notwithstanding the perplexity which afterwards succeeded, he seemed to intimate, that if any tithe were payable, it would be a personal tithe. The authors whom he quotes held the words of the act of Ed. II. to be general, and to extend to all mills, public as well as private, fulling mills, paper mills, &c. And, said they, it ought to be of corn mills; for if the parson should have the tenth toll dish, then he would have not only tithe corn, but also tithe of the same corn, ground at the mill, and so a double tithe, which he ought not to have of a fulling mill, paper mill, &c. (d) And so, in another book Lord Coke observes, that the tithes of fulling mills and paper mills are personal tithes ; (e) although he allows, in his Institute, that the cases of tithes had never been (within his knowledge) judicially determined.(ƒ) These tithes were payable yearly, before Easter; (g) indeed, Easter offerings have been said to be a compensation for personal tithes, (h) however inadequate the exchange may appear, (i) and therefore, it is that they are included in the commutation act of 6 & 7 Wm. 4, c. 71. *In suggesting grounds for a prohibition, it has been holden [*358] bad to say that it was an old mill, because, before the statute Articuli Cleri, some mills were chargeable, though some were not. And therefore, the more proper course is to prescribe in non decimando, and to bring an affidavit of the truth of the fact. () In that case, in the absence of any proof to the contrary, the Court as we have seen, will presume the antiquity of the mill. It has been held, that the defendant, in his answer to a bill for tithes, must state the quantity of meal ground and sold at his mill, the plaintiff having a right to that information, as a check upon the miller; but the Court said, that the price of the meal need not be disclosed. It was so determined, upon a demurrer to the plaintiff's bill, and the demurrer was accordingly overruled, because it covered too much.(1) Settlements are acquired by the ownership or possession of some of the kinds of property mentioned in this work. ment. Thus, the renting of a fishing in a pond has been held to give a settleThe pauper's father took, and held during two years, under a parol agreement, the fishery of the pond in Old Alresford, containing sixty acres, with the grates, &c., and also all the spearsedge, flags, and rushes, growing in and about the said pond; together with the right of cutting the sedge growing on a piece of rough meadow, or sedgy ground, which latter was distinct from the pond, and was held under a different right. The pauper's father agreed to pay 107. a year for the premises, and to supply the landlord's house with fish. The same person held, at the same time, under a parol demise, the fishery in the causeway river in New Alresford, with the grates to a small fish house, for which he paid 31. per annum. It did not however, appear from the case stated by the sessions, whether the fishery in question was a several, free, or common of piscary; and it was urged, that an incorporeal hereditament was not within the statute of William III. But the Court gave judgment in favour of the settlement, Lord Mansfield observing, that they would intend the fishery and soil to have passed together.(m) Here the Court laid great stress upon the occupying of land; but Mr. Justice Buller said, he was by no means prepared to allow, that if it had been any other kind of fishery, it would not have given a settlement.(n) Such a fishery, the learned Judge might have meant, as would be matter of [*359] tenure. So where the pauper was entitled to the exclusive cutting of rushes from two ponds, although the owner reserved to himself the use of the water, he was held to have gained a settlement.(0) where the pauper was allowed to take sand and gravel out of the bed of a river by a corporation, upon certain conditions, he was held to have gained his settlement. (p) A common in gross has been held a sufficient tenement for the purpose of acquiring a settlement, because it lies in (k) 12 Mod. 243, Hart v. Hall. (1) Wight. 15, Chapman v. Pilcher. S. C. 4 Gwil. 1653. (m) 1 T. R. 358, Rex v. Old Alresford Inhabitants. (n) Id. 367. (0) 1 B. & C. 23, R. v. All Saints, Cambridge. S. C. 3 Dowl. & R. 47. (P) 5 M. & S. 90, R. v. All Saints, Derby. So tenure, and a præcipe quod reddat might have been brought for it.(q) Upon the same principle, therefore, a fishery not appendant nor appurtenant to any lands, nor annexed to the soil, might be deemed sufficient for the same purpose; such as a fishery granted by deed to the person of an individual, but not in any way connected with lands, and exclusively enjoyed, as it respects the owner of the soil. But a mere right to fish will not have that effect; and therefore, the privilege of a commoner entitled to piscary in the lord's river will not enure to give him a settle ment. It should however be added here, that, in estimating the value of a tenement, a thing moveable in its nature may be attached to it, as an accessary, for the purpose of enhancing the yearly worth of the tenements. Therefore in a case, where the Court held, that the renting a dairy (including the cows and their pasture) would not confer a settlement, unless the land, upon which the cows were depastured, was above the annual value of 107., Lawrence, J., took occasion to observe, that this was quite different from a warren or fishery, for the rabbits and the fish were the produce of the land, but this was merely a contract for the hire of cows.(r) Fish in a fishery, therefore may be said to augment the inheritance, so as to increase the estimated value of a tenement, in questions of settlement. (s) The renting of a mill of the value of 101. a year will certainly confer a settlement. This is, however, a general proposition subject to qualifications which we shall mention immediately. For it is necessary, that the mill which gives this privilege should be a tenement. Thus, upon a question concerning the renting of a water mill, the Court declared, that a mill was a tenement, and consequently that the renting of it would gain a settlement. (t) This having been determined concerning a *water mill, a question was made as to a wind mill, but the Court [860] affirmed the settlement in respect of this mill also. (u) Yet there need not be a residence on the premises, in order to come within the provisions of the statute Wm. III., provided there be a residence in the parish. It was urged as an argument against the settlement in one of the above cases concerning a wind mill, that water mills were always habitable, but wind mills often not. The Court, however, paid no regard to this objection, as the pauper lived in a cottage which he rented in the same parish.(v) Then again, where the pauper rented a wind mill of the value of ten guineas, and occupied it for one year, it was objected that he had not resided in any part of the parish where the (9) Rex v. Dersinaham Inhabitants, 7 T. R. 671. (r) 2 East, 201, in R. v. Minworth Inhabitants. (s) 1 Nolan, 36. (t) 2 Salk. 536, between the Parishes of Evelin and Rentcomb. (u) Rex v. Butley Inhabitants, 1 Str. 1077. S. C. Burr. Set. Ca. 107. S. C. Ca. Temb. Hard. 391. S. C. Andr. 3. See also 1 Str. 502, between the Parishes of Cranley and St. Mary, Guildford. (v) Rex v. Butley, ut supra. |