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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A37445	The parson's counsellor with the law of tithes or tithing in two books : the first sheweth the order every parson, vicar, &c. ought to observe in obtaining a spiritual preferment, and what duties are incumbent upon him ... : the second shews in what manner all sorts of tithes, offerings, mortuaries, and other church-duties are to be paid ... / written by Sir Simon Degge, Kt.	Degge, Simon, Sir, 1612-1704.	1676 (1676)	Wing D852; ESTC R8884	170,893	368

Chapter before Cap. 16. antea 2. Bounds of the Parish Co. 7.44 b⸪ Roll 2 29● l. c. Cro. El. 228⸪ If the Bounds of a Parish come in dispute whether the place where the Tithes arise be in this or that Parish this is a matter tryable by Jury and therefore upon the suggestion of this matter a Prohibition will be granted 3. Monastery Lands discharged of Tithes Co. Ent 450. C. 453. d. Porter vers Rechester m. 6. Jac. C.B. If Lands be pretended to be discharged of Tiches by the Statute of 31 H. 8. or any other Statute a Prohibition lyes because it properly belongs to the Judges of the Common Law to expound all Statutes c. so if the suggestion be grounded upon the Stat. of 2 E. 6. for barren grounds c. 4. Roll 2.307 v. 13. Suits for things not Tithable If one sues in the spiritual Courts for the Tithes of things not Tithable by the Common Law for which see cap. 12. before or for the Tithes of great Woods above twenty years growth it is a ground for a Prohibition 5. Roll 2.286 f. 4. For matters determinable at Common Law If a Suit be brought in the Spiritual Court for the taking and carrying away of Tithes after the Tithes are set forth and divided from the nine parts by the Parishioner unless the Suit be between two Ecclesiastical Persons in their proper Rights a Prohibition lyes because 't is matter triable at Common Law 6. Cro. El. 228.642 Rolls 2.302 q. 19. 23 24. v. 16. For irregular Proceeding of the Spiritual Courts If the Spiritual Court will not admit a Legal defence as a Release an accord with satisfaction an award c. or if the Spiritual Judge refuse to admit the Defendant to traverse the Plaintiffs Title that he is not Parson Vicar c. a Prohibition will be granted but if the Defendant in the Spiritual Court alledg such matter against the Plaintiff there which is properly triable in that Court as Simony c. in such Case no Prohibition will be granted 7. Cro. El. 666. Roll 2.300 q. 6 8 9.301 q. 〈◊〉 15. 〈…〉 proof 〈◊〉 witness If the Spiritual Court shall disallow the proof of the setting forth of the Tithes by one witness Prohibitions have been granted Contra Co. 12 65⸪ Ideo quaere There are many more Cases wherein Prohibitions have been granted but these are the most frequent and may serve for a taste And indeed Prohibitions are granted in all Cases where they exceed their Jurisdiction By the Statute of 2 E. 6. It is enacted 2 E. 6. cap. 13. Must produce a Copy of the Libel that no Prohibition shall be granted in matters of Tithes in any of the Kings Courts unless the Party that requires the same bring and deliver to some of the Court where he prays such Prohibition a true Copy of the Libel subscribed by the hand of the Party and the suggestion underwritten and that if he do not prove that suggestion by two honest substantial witnesses in the same Court within six Months after the Prohibition granted and awarded then the Party delayed shall have a Consultation without delay Must prove the Suggestion within six Months and double Costs to be assessed by the Court wh●re the Consultation is so granted to be recovered in an Action of Debt c. wherein no essoine c. shall be allowed This clause of this Statute seems to give the Parson Vicar c. Observations upon this Clause Hoskins vers Stroade T. 5. Car. 10. 988 B. R. Cockeram vers Davyes Hill 22. Jac. Pop. 159. Jones 231. Cro. Car. 308. a double remedy where the suggestion is not proved within six Months that is a consultation and secondly double costs but in both these they are in some measure frustrated in their expectations for as to the first after such consultation a new prohibition may be obtained and besides there are several cases wherein the party cannot or needs not prove his succession notwithstanding this Statute 2 Inst 662. as where the suggestion is in the negative which regularly cannot be proved secondly if the suggestion be grounded upon any matter of Law as in case the Suit be for things not Tithable great Wood things ferae naturae 2 Inst 662⸪ c. this appearing in the libel a prohibition lies and there needs no proof of the suggestion To the second here is double costs to be awarded for want of proving the suggestion and no execution given but an Action of debt to recover it which is but a bad remedy in this case when the party shall only recover the costs and have no costs allowed him in the second Suit So upon the whole matter here 's a plausible clause in an Act of Parliament and little benefit by it It is to be observed that some prohibitions are in themselves peremptory In what Case Prohibitions are Peremptory in themselves as where there is a Suit in the Spiritual Court for things not Tithable and appearing so in the Libel in which cases a consultation shall never be granted and so it is if the Suit be for carrying away Tithes after they are set forth unless it be between Clergy Men in their own rights and so it is where the matter is determinable at Common Law and the same appearing in the Libel But where a modus decimandi Where ex post facto a Custom of not Tithing a priviledg within the Statute of 31 H. 8. for Abbey Lands and in such other cases where the suggestion is grounded upon matter of fact which is doubtful to the Court those prohibitions are not peren ptory till the matter of fact be tried and found true by verdict The manner of proceeding in the obtaining How to prosecute and defend Prohibitions prosecuting and defending of prohibitions is in this manner The party that is sued in the Spiritual Court and desires a prohibition moves the Court and for the most part makes his suggestion ore tenus at Bar if the suggestion be such upon which a prohibition cannot be denied the Court usually gives rule that the party shall at a certain day come to shew cause why a prohibition should not be granted and that in the interim proceedings in the Spiritual Court should be staid upon serving this rule in due time and oath made of it if the Plaintiff in the Spiritual Court do not appear at the day and shew good cause to the contrary the prohibition is awarded and the rule made peremptory but if the Court be doubtful whether the matter be sufficient to ground a prohibition or no then or at the prayer of the Defendant the Court will order the Plaintiff to draw up his suggestion into form and then the Court will consider of the matter or the Defendant may demur to it and the matter argued by learned Counsel and then the Court as they see cause will either award

brought the cause to issue upon nil debet or non culpa we will shew in the next place what will be good and material evidence as well for the Plaintiff as Defendant First What Evidence is necessary in this Action ex parte quere If the Plaintiff be a Parson Vicar or other Ecclesiastick and have not been some considerable time in possession of his Living in which I have not observed any constant rule amongst the Judges in their practice but ten years quiet possession for the most part is allowed by the Judges for an evidence of the Plaintiffs Title unless some material objection be made against it to draw it into question but if the Plaintiff have been but for some short time in possession or the possession litigious then the Judges usually put the Plaintiff to prove his institution and induction and now he must prove that he was in Episcopal Orders at the time of his institution otherwise his institution is void by the late Act of Uniformity he must produce a Certificate under the Hand and Seal of the Bishop c. that instituted him that he subscribed the declaration mentioned in the Act of Uniformity and must prove he subscribed the same in the presence of the Bishop or c. and he must prove that within two Months after he was inducted upon some Sunday or Lords day during Divine Service he read the thirty nine Articles of Religion in the Parish Church into which he was inducted and that he did declare his unfeigned assent and consent to all things therein contained and he must likewise prove that within two Months after actual possession of his Living he read Morning and Evening Prayer in his Church upon some Lords day and openly and publickly before the congregation declared his assent and consent to the use of all things therein contained and prescribed in these words I A. B. do here declare my unfeigned assent and consent to all and every thing contaiend and prescribed in and by the Book Intitled the Book of Common Prayer and Administration of the Sacraments and other Rites and Ceremonies of the Church according to the use of the Church of England together with the Psalter or Psalms of David pointed as they are to be sung or said in Churches and the form or manner of making or Ordaining and Consecrating Bishops Priests and Deacons The Parson Vicar c. having thus made himself a Title must proceed to prove the taking and carrying away the Corn Hay c. and the value and if need be that the Land lies within the Parish c. but this the Judges put them to prove first of all commonly But if the Plaintiff be a Farmer or Patentee under the Crown he must prove his Title but if he have been any considerable time in possession and the Title not controverted the Judges seldom put the Plaintiff to shew any more Title but his bare possession and enjoyment and that others pay him Tithes And so having shewed what is necessary the Plaintiff should be prepared to prove I will proceed to shew what defence the Defendant may make The Defendant upon the general issue of not guilty Ex Parte Defendentis Brown 1. 34. c. may prove that he duly set forth his Tithes but if he afterwards carried them away it will not serve his turn so if he sell his Corn privately to another and after he has sold it privately 2 Inst 649⸪ cuts and carries it away the Action lies against the first Owner the same Law is where the Owner of the land privately sells his Corn to another who privately cuts and carries it away And the Defendant may prove that another has a better Title to whom he has paid his Tithes or compounded with him for them Or he may prove that the Parson came in by Simony or any other matter that makes his presentation institution or induction void or any other defect in not reading the Articles c. Or he may prove that he set forth his Tithes and a Stranger carried them away or may give in evidence a Lease or Grant from the Plaintiff himself or any other to whom he can make a good Title but such Leases and Grants must be in writing unless for one year only to the Owner of the Land which hath been held good by way of retainer The Jury if they find for the Plaintiff Verdict are to find how much of the debt demanded by the declaration is due to the Plaintiff which they are to do by trebling the value of the Tithe subtracted wherein they are usually assisted by the Court. The judgment is always given for the debt found by the Jury without costs Judgment because this Action is grounded upon a penal Law where no Action lay at Common Law neither shall the Defendant have any costs if the Verdict pass for him but if judgment be given for the Plaintiff in an Action brought upon this Statute by nihil dicit non sum informatus Cro. Jac. 361 362. or demurrer the Plaintiff shall have Judgment for the whole debt demanded by his declaration And if an Action upon this Statute be brought against two or more and Verdict only pass against one or part of the Defendants the Plaintiff shall have Judgment against those against whom the Verdict passes Stiles 317 318. though the others be acquitted quod nota Note that this Statute as to the treble value and double value extends only to Predial Tithes Nota. and not to Personal mixt or other Church duties The Exchequer likewise by English bill holds plea for the single value Jurisdiction of the Exchequer for subtraction of all manner of Tithes Oblations c. of which great use hath been made since the late Wars and there they decree the single value with costs and the future payment which is of great advantage to the Plaintiffs and these suits are not interrupted with prohibitions but these suits are often very costly too for if a modus decimandi or the bounds of the Parish come in question and the proof not very clear they are frequently sent to Trials at Law which gives delay and increases the charges very much this Jurisdiction I take it is much fortified since Tenths and first-fruits were annexed to the Crown but Suits of this nature were early brought in this Court before the War however there are some antient Books prove that this Court on the Law side has assumed Jurisdiction of Tithes 38 Ass p. 20. 44 E. 3.43 44. but the reporter reports it with a quod mirum Lastly 50 E. 3.20 2 H. 4.15 20 H. 6.17 1 H. 6.5 2 E. 4 5. 44 Ass p. 25. it is evident in our Books of Law that the rights of Tithes were frequently determined at Common Law in Actions of Trespass for taking away of Tithes unless both parties were Clergy-men and sometimes Assises have been brought at Common Law for Tithes

Lord ordained that they that preach the Gospel should live of the Gospel what effect this Doctrine wrought amongst the Primitive Christians you may read in the fourth Chapter of the Acts of the Apostles where it is said that as many as were possessors of Houses or Lands sold them and brought the prices of things that were sold and laid them down at the Apostles feet and distribution was made to every man according as he had need But the Christians of this present Age are so far from selling their Houses and Lands and laying the price at the Apostles feet that they will rather detain that from the Clergy which by Law and right is due to them But certainly had the sincerity of the Primitive Christians continued I should never have needed to have set pen to the paper upon this subject I am now about which is the Law of Tithes or Tithing a duty established by the Laws of this as of other Nations for the maintainance of the secular Clergy and for their sake it is that I have undertaken this work There was a Tithing Table published many years ago By a Batchelor of Laws wherein he has learnedly set forth the manner of Tithing by the Canon and Ecclesiastical Laws but those Laws and the Common Laws of this Realm differing in many things wherein the Common Law is to be preferred that Tithing Table has often led both Parson and Parishioners into many errors besides the several discharges from payment of Tithes either absolutely or sub modo of divers Lands in England by the Statutes or Common Laws makes great alteration here from the Canon Laws to rectifie which and as near as may be to reconcile the Canon and Common Laws I did by the perswasion of some Reverend Divines first make some Animadversions upon that Tithing Table but when I had done that considering there were many more things in relation to Tithing than I could conveniently apply to that Text concerning Prescriptions Customs Compositions and other priviledges besides the Laws concerning Offerings Mortuaries and other Church duties fit for all men to know as well Lay as Clergy I adventured upon this larger work which I the rather did because I do not find any other that hath published any compleat work in this kind or to reconcile the Common and Canon Laws that kind of learning lying dispersed in our Law Books I have therefore in favour of the Parsons and Vicars taken up a former resolution and adventured to expose my self to the publick censure And though I cannot promise any perfection in this work yet I dare presume to say it is the most perfect work of this nature yet extant though I can pretend to nothing of it but the errors and mistakes which I will be thankful to any body that will friendly correct that I may make it more exact in a second Edition if I have encouragement The hindrance of conversing with the learned by reason of my confinement to the Country and publick Libraries hath hindred me of some helps I might have had thereby Perhaps it may not be so acceptable to those in whose favour I have writ it because it comes from the pen of one who professes himself a common Lawyer But in my Judgment in this Nation wherein the common Laws and customs of the Country prevail against the Canon and Ecclesiastical Laws this subject is not altogether improper if not most proper for a common Lawyer And truly I have through this discourse dealt with as impartial an hand as the matter would admit And though the Clergy may think it to their prejudice that I have at large set forth the several discharges by which lands are freed from the payment of Tithes yet in that I have given them a clear light which lands cannot be so priviledged and what Prescriptions and modus decimandi is not good being well assured that there are more Lands at this day escape payment of Tithes upon pretence of some priviledg to which they have no Right than those that pay Tithes and might legally be discharged But when I have done my best endeavour to serve the Reverend Clergy I cannot give them Incouragement to depend upon their own Judgments grounded upon any thing here writ for though this may suffice to give them some light what shall be due to them yet I cannot hope by any thing I can write to make them complete Lawyers for many Quaere's will arise that no foresight of mine could give an Answer to but this benefit I hope they will receive by my labours that they may put their Case and make their doubts known more pertinently to the learned I had no sooner finished this little Tract concerning Tithes but I considered there were many other things almost as useful for a Clergyman to know as the Law of Tithes And though Mr. Hughes of Graves-Inn many years since published a learned Tract which he intitled the Parson's Law yet there are many more things necessary for a Clergyman to know that are there only briefly or not at all touched upon and of such force that they must either be performed and observed to make a man a compleat Parson or to make him none though never so exactly instituted and inducted if omitted I have therefore in the first place before I come to the Law of Tithes shewed what Simony is and what danger those run themselves into that are guilty of it what things every Parson Vicar c. is to do before at and after his Institution and Induction to make him a compleat Parson c. what Dilapidations are and how punishable what priviledges the Clergy have at this day by the Laws of England what charges and payments their Tithes and Church-livings are subject unto what Causes of Deprivation have been allowed of by the Laws of England what Leases they may take or set and what Statutes they may fall in danger of and of pluralities and who is qualified to have them and in what manner to be accepted Non-residence and many other things necessary for every Clergy-man to know I have divided the whole into Two Books and them again into several Chapters and Paragraphs and added a short Table for the more ready finding of any thing in either I have likewise added a List or Catalogue of all the Abbeys and Priories that were valued in the Kings Books at 200 l. per annum or upwards and which were dissolved by the Statute of 31 H. 8. the Lands of which can only pretend to any priviledg to be discharged of the payment of Tithes in which I have rather chosen to write after Mr. Dugdale being a sure Author than Mr. Speed in whom I have observed many Mistakes I must beg the Readers Patience to correct the Mistakes of the Printer which are too many by reason of my absence from the Press by the Errata annexed and for my own I shall take it kindly from any body that will in a friendly

the prohibition or discharge the rule But if the matter suggested be a good ground for a prohibition but is in it self false or doubtful the Defendant in the prohibition may demand a declaration of the Plaintiffs Attorny which is grounded upon a supposed attachment for not obeying the prohibition to which the Defendant may plead as Councel shall advise him and Traverse and put in issue the matter of the said suggestion or such other matter as Councel shall advise which is to be tryed by a Jury of the Country if it pass with the Plaintiff then is the prohibition become peremptory but if the Verdict pass for the Defendant regularly a consultation is awarded that is a Writ directed to the Judg of the Spiritual Court authorising him to proceed notwithstanding the prohibition Now by a Statute made in the 50 E. Stat. 50 E. 3. cap. 4. Where a Prohibition was be had after Consultation 3. it is enacted That where a consultation is once duly granted upon a prohibition made to the Judg of Holy Church that the same Judg may proceed in the Cause by virtue of the same consultation notwithstanding any other prohibition thereupon to be delivered provided always that the matter in the Libel of the said Cause be not ingrossed enlarged otherwise changed But this Statute has been several times held to extend to such Causes only where consultations are judicially granted upon examination of the Cause Jones 231. Cro. Car. 208. Poph. 159 c. and not where they pass of course as for want of proof of a suggestion or upon non suit for want of prosecution or such like Sometimes the Court grants a consultation sub modo Co. 5.68 a⸫ Co. 12. Rep. 44⸫ Consultations sub modo as where the matter of the Libel is in the disjunctive and as to one part the Court has Jurisdiction and to the other not there the Court may grant a consultation as to that part that the Spiritual Court has Jurisdiction of and let the prohibition stand as to the other Or a consultation may be granted Sommers vers Sir Rich. Bulkeley T. 32 El. B.R. Poph. 58. Hob. 179. How the sin Months to prove a Suggestion is to be accounted Co 5.68 a⸫ Where no Consultation shall be granted upon a Verdict for the Defendant Hob 300⸪ so that the Spiritual Court allow such plea or such proof Note that the six Months for the proof of the suggestion is according to the Kalender and not twenty eight days to the Month. And note in the cases before put the prohibition shall be general and the consultation special quoad c. And it is taken for a rule in Sir Henry Hobarts reports that if a prohibition be faulty yet the Defendant shall never have a consultation if it appear to the Court that the suit in the Ecclesiastical Court was not well grounded And therefore where one sued for the Tithe Corn of sixty Acres of Land Dyer 171. p. 5 6. and the Defendant suggested it was barren Ground and paid no Tithe and prayd and had a prohibition and the Jury found that thirty Acres of it were so and that the other thirty were barren but had paid Tithe Wool and Lamb and a consultation denied because it appeared the Plaintiff had no cause to sue for Tithe Corn. So in a prohibition it was suggested More 911 Austen vers Pigot Cro. El. 736. that the Person had twenty Acres of Land and ten Acres of Wood in discharge of all Tithes and the proof was that he had twenty Acres of Land only and a consultation denied because it appeared he had no cause of suit Regularly a prohibition ought not to be granted after sentence Prohibition after Sentence Hob. 97. Noy 70. Winch 8. Cro. El 595. unless it appear the sentence were obtained in the vacation or by surprise so that the party had not time to pray it sooner or upon matter arising after the sentence Hob. 67⸫ and the granting or not granting rests much in the discretion of the Court. And so sometimes upon new matter arising after a consultation a prohibition may be granted After Consultation notwithstanding the aforesaid Statute of 50 E. 3. as where the Spiritual Court after consultation proceeds to try matter determinable only at Law Hob. 286⸪ or if after a consultation the Spiritual Court will make an unjust decree as to award treble damages Hughes 245. Hill 11. Jac. C.B. Baldum vers Geery and so in all cases if the Spiritual Judg will proceed illegally and against the Common Law after consultation a new prohibition may thereupon be obtained but not upon any matter alledged in the Libel Prohibitions of themselves are excellent things The virtue and vices of Prohibitions where they are used upon just legal and true grounds and have often avoided the usurpations of the Popes and Spiritual Courts but by the corruption of these later times they are grown very grievous to the Clergy being too oft granted upon feigned and untrue suggestions which it is impossible the Judges should foresee without the Spirit of Prophecy And I think I may presume to say that where one was granted before Queen Elizabeths time there have been a hundred granted in this last Age and they are a very great delay and charge to the Clergy and it were well in my poor Judgment if the Reverend Judges would think of some way to restrain them or to make them pay well for their delay by making the Plaintiff enter into recognizance to pay such costs as the Court out of which they issue should award in case they should not prove their suggestion in convenient time or some such other course as they in their great wisdom shall think just and meet And so having done with the first manner of determining the right of Tithes at the Common Law I shall proceed to the second which is by Writ of Right of Advowson to which likewise belongs the Writ of Judicavit which in it self is no other but a meer prohibition to the Ecclesiastical Judg and first of the Judicavit There have been some opinions that the Writ of Judicavit is grounded upon the Statute of Circumspecte Agatis Judicavit at Common Law and Articuli Cleri cap. 2. But it is very clear this Writ lay at Common Law and it appears in our Books that it was the opinion of some learned Judges that it lay in all cases where the right of Patronage might come in dispute 38 H 6.20 a. per mode 4 E. 3.27 b. per Markham 2 Inst 364. Lay for any Tithes Bracton l. 5. c. 4.402 b⸪ and of this opinion Sir Edward Coke seems to be And Bracton a Learned Judg who wrote in the time of H. 3. hath the very Writ in his Book which was long before the Statutes abovementioned and he fays that this Writ lies si contentio fuerit inter Rectores de aliquibus decimis quae