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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

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 Lands Woods or Houses of his Church he may be deposed or deprived by his Superior so that it appears clearly 20 H. 6.46 a⸪ 2 H. 4.3 b⸫ Co. 11.94 b⸫ 29 E 3.16 a. 9 E. 4.34 a⸪ that the fault in this case lies heavy upon those that have the Visitation and Superiority that they do not take care against the wasting and destruction of the Buildings Houses Woods c. of the Church and that the Successors should not be put to seek remedy against Executors and Administrators who are too active in finding shifts to avoid their actions to avoid which there is a good Law made in the thirteenth Year of Queen Elizabeth to this effect That if any Parson Statute against fraudulent Conveyances Stat. 13 Eliz. cap. 2. Vicar c. shall make any conveyance of his goods to defraud his Successor of his remedy the like Suit is given in the Spiritual Court against the Grantee as the Successor should have had against the Executors or Administrators of the Predecessors But this Act gives no remedy at Common Law Stat. 13. El. c. 5. because by another Act made at the same Parliament all such Grants to defraud any Person or Persons of their just actions are made void So that the Plaintiff has equal remedy in both cases Suits for Dilapidations are most properly and naturally to be sued in the Spiritual Courts and if any prohibition should be granted Fitz. N.B. 51. f. the same ought to be superseded by a consultation but this is intended where the Suit is grounded upon the Canon-Law But the Successor may upon the Custom of England have a special action upon the case against the Dilapidator Action upon the Case at Law for Dilapidations T. 8. H. 7.10 69. B.R. T. 18. H. 7. ro 69. C.B. P. 12 and 13 H. 8. rot 126. C.B. H. 15 H. 8. ro 306 C. B. in 12 H. 8. ro 730. C. B. H. 15. Jac. 10.474 c. The Custom upon which the Action is grounded his Executors or Administrators whereof there are multitudes of precedents even in the time of Popery whereof the Reader has a taste in the margent By all which it appears that by the Custom of England which is the Common Law omnes singuli Praebendarii Rectores Vicarii Regni Angliae pro tempore existentes omnes singulas domos Edificia Praebendorum Rectoriorum Vicariarum suorum reparare sustentare ea Successoribus suis reparata sustentata dimittere teneantur Et si hujusmodi Praebendarii Rectores Vicarii domus Edificia hujusmodi Successoribus suis Sic ut praemittatur reparata sustentata non dimiserunt deliquerunt sed ea irreparata dilapidata permiserunt Executores sive Administratores bonorum catallorum talium Praebendariorum Rectorum Vicariorum post eorum mortem de bonis catallis decedentium Successoribus talium Praebendariorum Rectorum Vicariorum tantam pecuniae summam quantam pro necessaria reparatione edificatione hujusmodi domorum Edificiorum expendi aut solvi sufficiet satisfacere teneantur And upon this Custom actions of the case have been frequently brought both antiently and of later times and dammages recovered And note Stat. 14. El. c. 11. that by a Statute made in the fourteenth Year of Queen Elizabeth it is expresly enacted that all the Moneys and Dammages that shall be recovered for Dilapidations are to be expended and laid out in and about the repair of the Houses c. dilapidated wherein the Visitors of those Churches ought to take care It will not be altogether improper to conclude this Chapter with the Stat. 35 E. 1. of 35 Eliz. intitled Nè Rectores prosternant arbores in Coemiterio whereby it is inacted or rather the Common Law declared to be in these words We do prohibit the Persons of the Church Against cutting the trees in the Church-yard that they do not presume to fell them viz. the trees in the Church-yard down unadvisely but when the Chauncel of the Church wants necessary Reparations neither shall they be converted to any other use unless the body of the Church do want repair in which Case the Parsons of their Charity shall do well to relieve the Parishioners with bestowing upon them the same trees which we will not command to be done but we will commend it when it is done By this Law it appears that the Church-yard and the soyl thereof is in the Parson and by consequence the trees are in the Parson or Rector that grow therein But because the Trees that grow there are for the most part planted there for the shelter and ornament of the Church from Tempests and Storms therefore the Parliament has granted a Prohibition in this Case against the Rectors and Parsons of Churches that they should not cut down these trees for any other use but the necessary repairs of the Church and Chauncel which in truth was no more than what the Common Law enjoyned for if the Rector had gone about to have cut them down for any other use the Patron might have had a Prohibition but now I conceive the Rector or Impropriator that cuts down any Trees growing in the Church-yard for any other cause than for the repair of the Church or Chauncel may be indicted and fined upon this Statute at the Common Law If the Bishops and Arch-deacons in their Visitations would take care these Dilapidations might easily be avoided which is a great dishonour to the Clergy and cannot be pleasing to God Almighty or good men And the Canon enjoyns the Arch-deacons and other Officials ut in visitationibus Ecclesiarum faciendis diligentem exhibeant considerationem ad fabricam Ecclesiae maxime cancell ' Cap. Archidiaconi infra si forte indigeant reparatione si quos invenerint defectus hujusmodi certum sub poena praefigant terminum infra quem emendentur vel suppleantur c. CHAP. IX The ninth Chapter shews for what Causes a Parson Vicar c. may be deprived by any Statute-Law and what matters are allowed for good causes of Deprivation at the Common Law DEprivation or Deposition is Deprivation and Deposition quid where a man by any Statute-Law or by any judicial Sentence Ecclesiastical that hath proper Jurisdiction is made incapable to hold or enjoy his Parsonage Vicarage or other spiritual promotion or dignity and the causes of such Deprivation or Deposition are properly and naturally determinable by the Ecclesiastical Laws of this Realm Where determinable But because generally there are Estates of Freehold dependant upon these promotions and dignities and annexed to them inseparably which rest at the sole determination of the Common Law the Courts of Common Law do sometimes inspect and regulate the proceedings of the Ecclesiastical Courts and where they proceed against the Rules of common Law they frequently prohibit them I have therefore thought fit to shew what causes of

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