Deprivation or Deposition have been allowed and approved of by the Judges and Courts of the Common Law or by any of the Statutes of this Realm But there are many more causes of Deprivation by the Canons and Laws Ecclesiastical which being out of my profession I shall not presume to discourse of 1. Co. 11.49 b⸫ Waste and Dilapidation cause of Deprivation c. The Dilapidating and wasting the woods and houses and other buildings of the Church is held a good Cause of Deprivation or Deposition as appears in the precedent Chapter and the Books there vouched in the margent 2. Simony cause of Deprivation The Clerk that obtains any preferment in the Church by any Simoniacal Contract or agreement may be deprived by his Ordinary c. as appears at large in the fifth Chapter here before upon that Subject 3. 1 El. cap. 2. Stat. 14. Car. 2.4 To use other Forms of Prayer the second offence That if any Parson c. shall refuse to use the book of Common Prayer or administer the Sacraments in the order there prescribed or shall wilfully and obstinately standing in the same use any other Rite or Ceremony order form or manner of Celebrating the Lord's Supper or other open Prayers or shall preach declare or speak any thing in derogation thereof or depraving the same or any thing therein contained and having formerly been convicted for the like offence shall upon his second Conviction be deprived ipso facto 4. If any Parson Vicar c. Stat. 14. Car. 2. cap. 4. Neglecting to read Prayers within two months after Induction shall not within two months next after Induction upon some Lord's day openly publickly and solemnly read the Morning and Evening Prayers appointed to be read the same day according to the Book of Common Prayer and after such reading shall not openly and publickly before the Congregation there assembled declare his unfeigned assent and consent to the use of all the things therein contained in such manner as is directed before here in the seventh Chapter and if there be any lawful Impediment then if he do not do the same within one Month after the impediment removed such Parson Vicar c. shall be deprived ipso facto 13 El. cap. 12. To maintain any doctrine against the 39. Art of Religion 5 B. 2. tit Trial 54. Misereant Infidels Schismaticks and Hereticks Depriv f. 3. 5. If any person which shall have any Ecclesiastical preferment shall advisely maintain or affirm directly any Doctrine contrary or repugnant to the 39 Articles of Religion and being convented before the Bishop of the Diocess or Ordinary or before the high Commissioners shall persist therein and not revoke his Error or after such Revocation shall eftsoon affirm such untrue Doctrine he may be deprived 6. If any person shall obtain a preferment in the Church which is a * a Misboliever Miscreant †an Atheist c. 38 E. 3.2 b. Dyer 8 and 9 p. 254. Co. 558. a ⸪ Dyer 293. p. 1 and 2. Infidel Schismatick or Heretick he may be deprived 7. So if one be made a Parson Vicar c. that is not of free Condition but a Villain or that is illiterate and not able to perform his duty Slave Villain illiterate and criminous person may be deprived or that is guilty of any heinous Crime as Murder Manslaughter Perjury Forgery or that is merè Laicus and not in holy Orders he may be deprived 8. Allen vers Nash P. 13. Car. 1. B R. Disobedience to his Ordinary cause of Depriv Cro. Jac. 37. Non-Conformity Quod nota A Parson Vicar c. may be deprived for being disobedient and incorrigible to their Ordinary c. 9. And it was resolved by all the Judges of England 2 Jacob. That non-conformity was a good Cause of Deprivation and it was declared by them all that in case any Canons were made by the Clergy for the good Government of the Church and approved and confitmed by the King as they ought that the obstinate disobeying of them was a just cause of Deprivation 10. 2 H. 4.37 Tuking a second Benefice If any Parson Vicar c. have one Benefice with Cure of Souls and take another incompatible without a faculty and dispensation it is a just cause of Deprivation 11. Dyer 133. p. i. Priest to marry was cause of Deprivation In the time of Popery it was cause of Deprivation for a Priest to marry but not to have two or three Concubines as they called them but more of this hereafter 12. Co. 11.98 b ⸪ 2 H. 4.3 9 E. 4.34 20 H. 6.36 29 E. 3.16 Dilapidation Destruction of woods c. or Alienation of Land belonging to the Church by any Bishop Abbot Prior Parson Vicar c. have been held and adjudged good Causes of Deprivation and it is very fit it were practised Dilapidation Waste Alienation of the Lands cause of Deprivation Deprivation ipso facto where after monition there is not Reformation There may be a question started what shall be intended by the words deprived ipso facto whether by those words the Church immediately shall become void by the fact done or not till Conviction or Sentence declaratory The words ipso facto are of late time crept into acts of Parliament as that for striking with a weapon in a Church-yard the Party shall ipso facto be excommunicate Dyer 275. b. p. 48. and in that Case it is made a quere in Dyer and having not met with any Resolution in the point I shall not presume to give my opinion in the Case but leave it to the determination of the learned But in that Case by the Canonist requiritur Sententia declaratoria Quaere I must consess Lindwood c quia incontinentiae vitium verb. ipso facto in this Chapter I may seem to transgress upon the Canonists and Civilians as well as in some other but I have gone no further upon this Subject than what I have met with in our own Books and I must agree that the Ecclesiastical Courts have the sole Jurisdiction in all Causes of Deprivation Depositions Resignations c. And yet the Judges of the Common Law have power to correct their proceedings if they shall proceed against the Rules of the Common Law which is the reason we meet with these things in our Books and it may be some advantage to the Civilians to know how far the Common Law approves of their proceedings and having said what I have to say upon this Subject I shall proceed next to shew what Leases Parsons Vicars and other Ecclesiasticks may make at this day of the Glebes Tithes Farms c. and within the danger of what Statutes they may fall CHAP. X. The Tenth Chapter shews what Leases Parsons Vicars and other Ecclesiastical Persons may make of their Glebe Tithes Farms c. and what Farms they may take and within the danger of what Statutes
a Verdict in a Jure Patronatus 14. an Action of the Case lyes against him if he admit against the verdict in a Jure patronatus 14. v. Dilapidations and non-residence Coparceners present severally 17. Tenants in Common or Joyntenants 18. C. Canons against Common Law void 41. Calves Wool Lamb Milk Pigs c. how to be paid 169. The Canon ibid. Wool and Lamb how to be paid 170 c. Milk and Cheese 173. sheep not kept thirty daies 174. when Calves c. are to be paid 175. several mens sheep deposture together 176. of Wool Locks Beltings Neckings and of sheep that die of the rot 176. Charges to what Charges Tithes and Glebe Lands are subject and to what not 195. Concubines allowed Priests and other religious Persons and in what manner 124. vid. Incontinenc Confirmation of Bishops Leases where necessary 103. where he has two Chapters where good ibid. Lease confirmed before sealing 104. after the death of the Bishop ibid. makes several concurrent Leases and last first confirmed 104. grant all confirmed before the Inrollment 104. who is to confirm Leases where requisite 105 c. Lease Parson confirmed by the Bishop being Patron alone 106. Lease before Induction confirmed it is void 106. Confirmation for part of the Lands or term and how ibid. Parsons Lease is confirmed and then deprived 107. the Bishop and Husband of the Patroness confirms quod operatur 107. Tenant in tail Patron confirms ibid. Vsurper confirms 107. Patron grants the next avoidance and then confirms 107. Parson Leases to his Patron Bishop confirms and Patron assigns 107. a Bishop Patron confirms without Dean and Chapter qd operatur 108. a Parson Leases before 13 Eliz. confirmed after 108. a Prebend leases and recites that it is done by the Consent of the Bishop who is witness 108. Lessee grants a rent-charge which is confirmed 116. a verdict and judgment will not confirm such Grant where the Bishop is prayed made 116. Composition v. Real Composition Conveyances by what Conveyances Tithes may be past 219. Corn the Tithes thereof how to be paid 154. of Rakings 155. of green Corn cut for the Beasts of the Plow 156. Custom of what force in Tithing 185.189 of not Tithing where good 186. to make things not Tithable to be Tithable 187. the difference between it and Prescription ibid. how far the Canonists allows of Custom 188. D. Deprivation and Deposition quid 83. where determinable ibid. cause of Deprivation by Waste or Dilapidation 84. for Simony ibid. for non-conformity 84. for not reading the Common Prayers within two months after Induction 85. to maintain any Doctrine against the 39 Articles is cause of Depr 85. for what Crimes Ecclesiastical or Civil ibid. for unworthiness 86. for disobedience to the Ordinary 86. for taking a second Living 86. for a Priest to marry was Cause 86. Deprivation ipso facto quid 87. Debt sur 2 E. 6. by whom and against whom it lyes 295. the Form of the Declaration 295. what Pleas lye in it 297. what Evidence is good 298. what Verdict 301. what Judge shall begiven therein 301. Dignities qd 53. Dilapidations qd 74. a Canon against them 75 what relief against them 75. cause of Deprivation in a Bishop Parson c. 77. a Prohibition to forbid them 77. an Act of Parliament against fraudulent Conveyances to avoid the Remedy 78. an Action of the Case lyes at Law for them by the Custom of England 79. and the form ibid. Damages recovered how to be bestowed 80. Trees in Church-yards not to be cut 80. E. Evesque vid. Bishop Exchequer has Jurisdiction of Tithes 302. F. Farms not to be taken by Spiritual men 119. but in particular cases ibid. may not Farm anothers Parsonage ibid. nor keep a Tan-house or Brew house 119. Ferae naturae where Tithes shall be paid of birds and beasts ferae naturae 178. Fees what for Institution and Induction by the Canon Law 58. First fruits qd 195. why Vicarages are higher charged than Parsonages 198. Fishing vid. Ferae naturae Fowl domestick what Tithes shall be paid 183. Fowling vid. Hawking Fruit vid. Seeds H. Hay how to be paid 155. in Orchards 156. of Fodder in the Fens ibid. Grass cut in Meadows for beasts of the Plow 156. of Head lands Balks c. 155. Herbage the Canon 165. who shall pay it 166. not for Saddle Horses ibid. nor of beasts bred for the Plow or Pail ibid. nor for beasts ferae naturae 167. a Pasture eaten with mixt cattle ibid. with Beasts of the Plow ibid. of what cattle herbage is due 168. Hunting hawking fishing fowling 182. I. Incontinence vid. Concubines how punishable in the Clergy 121 and 126. Indicavit lay at Common Law and in what cases 288. in what cases it lyes at this day 289. not till after Libel 289. the Form of the Writ altered ibid. it lyes of offerings 290. by whom ibid. the manner of Proceeding therein 291. Induction how to be made 6. who may make it ibid. what is to be done after Induction 7. vid. Fees Institution in what manner made 6. may be made out of the Diocess ibid. what is effected thereby 7. Jure Patronatus where necessary 11. whether the Bishop be bound to sue it at his peril 12. it lyes though the Church be not litigious 13. the manner of Proceeding therein 14.15 how the Verdict is to be taken 16. the force thereof 17. the Jury refuses to give a verdict qd fieri 17. who may hold it 15. the Bishop himself may 18. if the Commissioners neglect their duty qd fieri 18. verdict in it does not bind ibid. at whose Gosts to be sued 12. Jurisdiction vide Recovery of the Spiritual Court in Simony 56. in Deprivation 83. Deposition and Resignation 87. K. King if a Simonist dyes possest if he lose the Presentation 54. may present upon a Simoniacal Contract though he cannot be guilty of it 54. L Lambs vide Calves Lapse incurs and Patron presents 8. if the Bishop may let the Church lapse where it is litigious 12. where it shall lapse by the taking of a second living 21. from what time the 6 months shall commence 7. and how accompted ibid. Leases what leases may be made by Clergy-men 89. at common Law 90. by the Stat of 32 H. 8. ib. what qualities such leases must have 92. they must be in Writing indented 92. must commence from the making ibid. the old lease must expire within a year 92. there must not be a double lease ibid. what things may be leased ibid. 96 not an Advowson 116. lands usually let 92. the usual rent must be reserved 93. must not be without Impeachment of waste 93. Parsons and Vicars excepted in 32 H. 8.94 lease for 99 years if three lives live so long good ibid. Bishops are restrained by 1 Eliz 94. where such leases shall be only voidable 95.1 Eliz. is a private Act 96. concurrent leases by Bishops 96. but not for life or on a lease for life 104.
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-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
almost penned in the same words for the double value would make a man at a stand what the meaning of the Parliament was and it was forty years when almost all that were at the making of this Act were dead before it was found out 2 Inst 650⸫ that an Action of Debt lay upon this Clause at Common Law for the treble damages To wit Pasch 29. Eliz In the Exchequer in an Information by the Queens Attorney against one Wood for the treble value as forfeited to the Queen In which Cause it was resolved that an Action of Debt lay at the Common Law for the treble damage for not setting forth of Tithes for wheresoever an Act of Parliament gives a forfeiture against him that doth dispossess c. the Owner of his property as here he doth of his Tithes there the forfeiture is given to the Party grieved or dispossessed since which resolution Actions of Debt have been frequently brought in all the Courts of Westminster by Parsons Vicars Propriators Owners and Farmers of Tithes as well Lay as Spiritual upon this Statute but being so long before it was found out that an Action lay at Common Law upon this Statute the Plaintiffs in the recital of the Statute alledged it to be made the fourth of February 2 E. 6. whereas in truth the Parliament begun the 1 of E. 6. and was held by Prorogation the fourth of February 2 E. 6. And this being discovered in an Action between Oliver and Colier P. 6. Jac. B. R. brought upon this Statute wherein the Statute was misrecited as aforesaid and exception taken to it in arrest of Judgment 1 Brownlow 100. Yelver 126. Dyer 171. p. 6. Stile 122. the Court upon good advisement overruled the exception by reason of the multitude of Presidents and affirmed the Rule that multitudo errantium parit errori Patrocinium Now considering that this is become a very frequent Action in use I conceive it will not be improper to the present occasion to communicate to the Reader what I have observed and learned in this kind of Actions not only concerning the Forms of Declarations Pleadings Verdicts and Judgments but likewise what evidence is necessary upon the general Issues of non culpa and nil debet for the Plaintiff and Defendant and in the first Case consider in what Cases and by whom and against whom this Action may be brought If two be Joynt Tenants Hutton 121⸪ 122⸫ By whom and against whom Actions lye in this Statute and they enter and occupy jointly the Action must be brought against them joyntly but if one only enter and occupie them the Action must be brought against him that only occupies alone But if there be two Tenants in Common and one of them sets out his Tithe and the other carries it all away there the Action shall be brought against him that carries it all away alone If the Husband and Wife in the right of the Wife be intitled to Tithes Noy 3.136 1 Brown 86. Yelv. 63. Cro. Jac. 68. they shall joyn in this Action because the damage is to survive but a Parson and a Vicar cannot joyn but if they joyn in a Lease to a third person their Farmer may sue for all in one Action but in the first Case I see no reason but that the Husband may bring the Action alone and so I have known it often done In an Action brought upon this Statute The Form of the Declar. Bellet vers Henworth P. 1657 B. R. the Severance was alledged before the sowing and exception taken after Verdict but the Exception was disallowed because the shewing of the sowing was superfluous and so aided by the Verdict The taking was alledged after the Plaintiffs Term was ended Cro. Car. 324. and yet held good M. More 911. 40 and 41 Eliz. A Judgment was arrested because the Suit was brought ad respondend tam Domino Regi quam Parti but this Case I very much doubt for being against a Statute Law it is a contempt finable though the Plaintiff have the forfeit as upon the Statute of Huy and Cry Hetley 121. c. And I take the Case inter Luvered and Owen M. 4. Jac. C. B. for the better Law where it was held good Upon an Action brought by two upon this Statute Cro. El. 170. who made their Title by a Lease from a Patentee of the King and exception was taken because they did not shew the Patent but disallowed 1. Because the Letters Patents did not belong to the Plaintiffs 2. Because the Plaintiffs did not demand the Tithes themselves but damages for a tort another Exception was taken to the Declaration because the Plaintiff alledged the Defendant did not agree with them and did not say or either of them but held good by Intendment And it hath been adjudged 2 Bulst 65.228.183 1 Brown 86. Noy 3. Yelv. 63. Cro. Jac. 68.361 that in this Action the Plaintiff needs not to shew his Title especially but it is enough for him to alledg that he is Propriator Farmer or Rector generally without shewing how And it hath been held good 2 Brown 70 71. though the Plaintiff in his Declaration do not express the quantities or loads of the Corn or Hay carried away 2 Inst 650. And so it is though you do not express in your Declaration the kinds of the Grain carried away Where a man alledged Coke vers Smith H. 7. Car. 1.10 587. B. R. per Lat. that he was Farmer of all the Tithe Corn arising c. upon sixty Acres of Land in D. and did not alledg which they were in certain and yet allowed for good 2. The Plaintiff alledged the Defendants Occupiers but did not say whether joyntly or in common and yet held good 3. The Plaintiff had alledged no time of the carrying away but having alledged the time of the severance and the carrying away coming in with a Conjunction Copulative it was held well enough In an Action brought upon this Statute Cto Jac. 324. 2 Bulst 114. the Plaintiff averred in his Declaration that he was subditus dictii Domini Regis having recited the Statute and it was held nought because it must necessarily be intended E. 6. and not of the present King In an Action upon this Stat. Pleas in this Action Porter vers Rochester Hill 9 Jac. B. R. the Defendant pleaded a Recovery in the Ecclesiastical Court but it was held no good Plea at Common Law but I conceive it would be a good evidence upon nil debet pleaded otherwise the Parishioner were in an ill Condition In this Action non culpa and nil debet have been both held good Issues Wortley vers Empringham P. 42. El. B. R. Hob. 218. Cro. El. 766. Cro. Jac. 361. but it is no good Plea to plead that the Plaintiff sowed the Corn and sold it to the Defendant because this matter will not excuse the payment of Tithes Now having
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
manner inform me of them for Humanum est errare and though I may have cause to be ashamed of them yet I will never be ashamed to amend Vale. The Contents The Contents of the several Chapters contained in the first part of this Book Intitled the Parsons Counsellor CHAP. Who may be a Parson 1. sheweth who may or may not be a compleat Parson Vicar c. Chap. How he must proceed in taking a Living 2. sheweth how one that is a Person fitly qualified to be a Parson Vicar c. ought to proceed in the obtaining and accepting of the same Chap. Jure Patronatus 3. shews in what cases 't is necessary for the Bishop to have a jure patronatus and how to proceed in the same and what is the force and effect thereof Chap. Pluralities 4. shews how the Law stood concerning pluralities before the Stat. of 21 H. 8. who are qualified within that Law to have pluralities and how they ought to behave themselves in taking the second Livings so that the first may not be made void Chap. Simony 5. shews what Simony is and who shall be said to be guilty of it and what are the dangers ensuing thereupon Chap. What he is to do at before and after institution and induction 6. shews what one is to do before and at institution and after induction to make himself a compleat Parson Chap. Non-residence 7. shews what is required further of Parsons c. after induction and what non-residence is and the dangers incurred thereby and what matters will excuse the same Chap. 8. shews Dilapidations what shall be said to be dilapidations and how the same is remedied and punished Chap. 9. shews for what cause a Parson Deprivation Vicar c. may be deprived according to the rules of the Common Laws Chap. 10. shews what Leases a Parson Leases Vicar c. may make of his Glebe Tithes and what Farms he may or may not take Farms and within the danger of what other Statutes they may fall Chap. 11. shews Priviledges of the Clergy what Priviledges are allowed to the Clergy in Holy Orders by the Statute and Common Laws of this Realm The Contents of the several Chapters contained in the second part of this Book Intituled the Law of Tithes or Tithing CHAP. 1. shews what Tithes are Quid quot◠plex quo modo debet the several sorts and kinds thereof and how the same become due Chap. 2. shews By whom and to whom due by whom and to whom Tithes ought to be paid Chap. 3. shews What things are Tithable Corn Hay c. of what things Tithes are due to be paid and in what manner the Tithes of Corn Hay c. are to be paid Chap. 4. shews Wood. where and in what cases the Tithes of wood ought to be paid Chap. 5. shews Herbage where Tithes are due for Herbage or Agistment of Cattle and who is to pay the same Chap. Calves Milk Cheese Wool Lambs Pigs c. Seeds Fruit Mast Bees Hony things ferae naturae 6. shews where and in what manner the Tithes of Calves Milk Cheese Wool Lambs Pigs c. are payable Chap. 7. shews in what manner the Tithes of Seeds Fruit Mast Bees c. are to be paid Chap. 8. shews where and in what manner the Tithes of Pigeons Conyes Fish Deer and other Birds and Beasts ferae naturae are Tithable Chap. Mills 9. shews of what nature the Tithes of Mills are and in what cases payable Chap. Personal Tithes 10. Treats of the Tithes of Hawking Hunting Fishing Fowling c. and other personal Tithes Chap. Domestick Birds 11. Treats of the Tithes of Ducks Geese Swans Turkeys and other domestick Fowls and Birds Chap. Of what things Tithes are not payable 12. shews of what things Tithes are not due by the Common Laws of this Realm Chap. Customs 13. shews what force Customs have as well in the form and manner of Tithing as in the discharging the payment thereof and the difference between Custom and Prescription Chap. Interest in the Lands 14. shews what Priviledges the Parson Vicar c. have in the Grounds where the Tithes arise for the drying making and carrying away the same Chap. To what charge subject 15. shews to what charges the Glebe and Tithes are subject and liable Chap. Modus decimandi 16. shews how far Prescription will prevail in the manner of Tithing and in what Cases a modus decimandi will bind the Parson c. Chap. 17. shews How to be destroy'd how a modus decimandi may be destroyed Chap. 18. shews by what conveyances How to be convey'd and by what names Tithes may be granted demised c. and what Demises and Leases made by Parsons Vicars and other Ecclesiasticks c. are good Of Leases Chap. 19. shews Barren Ground what barren Lands are freed from payment of Tithes within the Statute of 2 E. 6. Chap. 20. shews Real Compositions what a Real composition is and in what cases Lands shall be freed from the payment of Tithes thereby Chap. 21. shews Monastery Lands what Monastery Lands are or may be freed from the payment of Tithes Chap. 22. shews what personal Tithes are Personal Tithes and in what cases due and payable Chap. 23. shews what Oblations Offerings Oblations c. are and where due and payable Chap. 24. shews what Mortuaries are Mortuaries and in what cases they are due and payable Chap. 25. shews London how Tithes are to be paid in London and several resolutions upon the Statute made for the payment thereof Chap. 26. shews in what Courts How recovereble and in what manner Tithes may be sued for and in what Cases Prohibitions lye for the staying of Suits for Tithes in the Ecclesiastical Courts and how to proceed therein Prohibitions Note that in my references to printed Books in this Treatise Directions in the Marginal references I for the most part refer to the page and part of the page where the matter is to be found in this manner if the matter be at the upper end of the page I mark it with three pricks thus ⸫ if in the middle thus .. if at the lower part thus ⸪ and where the Book is numbred by Fol. I add the A. or B. side as it happens THE TABLE A ACceptance of Rent where it shall affirm a Lease 117. not by Parson Vicar or Prebend 118. whereby the acceptance of Fealty by a Parson shall bind 118. a Bishop accepts the rent upon a Lease for Life of Tithes 118. upon a Lease for years of Tithes ibid. Admission in what manner to be made 6. not to be done hastily ibid. Atfermathes where Tithe is due of them 155. Agistment vide Herbage Alternagium quid 145. Annates qd vide First-Fruits B. Barren Lands in what Cases free from the payment of Tithes 221. Bees what Tithe is due for them 177. Bishop what time he hath to examine a Clerk 5 and 6. admits a Clerk before the Church becomes litigious 13. not bound by
second Presentation that the Bishop acquits himself thereby from being a Disturber but by this means the Bishop may do great wrong in surprising other Patrons that have right And the Law doth not so hasten the Bishop's proceeding but that as has been said he may take convenirnt time to examine the Clerk that other pretenders may take notice of the vacancy But though the Church by any of the means abovesaid be become litigious yet I think there is no doubt but that the Bishop may admit either Clerk without a Jure Patronatus Hob. 317. but then he doth it at a double peril for if the Patron whose Clerk he admits have not a good Title or having a good Title do not make it out in a quare impedit or other Action brought for the Church the Bishop will be made a disturber And it seems likewise How far the Bishop is bound by a Verdict in Jure patron that the Bishop is not so bound by the Verdict in a Jure Patronatus but that he may admit the contrary Clerk if he see cause or be satisfied he has the better Title but this seems to be against Justice and the true intent of the Law 34 H. 6 11. b⸪ Hob. 318 ⸫ And Sir Henry Hobart was of opinion that an action of the case lyes against the Bishop by the Patron that is so disturbed if in a quare Impedit he prove to have the better Title and recover his damages by reason of the delay and trouble the Bishop hath thereby put the Patron to but then the Bishop must not be made a Defendant in the Quare Impedit Quaere but of this quaere Now the manner and form of proceeding in a Jure Patronatus is thus The manner of proceeding in a Jure Patronatus The Bishop issues forth a Commission under his Seal to his Chancellor or some other persons whom he pleases that are expert in the Canon and Ecclesiastical Laws in which Commission since the Title of Patronages is determinable at the Common Law it were not amiss to joyn some Common Lawyer of eminent Learning and Integrity and these Commissioners are by him authorized to summon a Jure Patronatus and proceed to the Determination thereof and then the Commissioner or Commissioners so authorized issue out a Mandate to some Officer of their own to summon a Jury which must be one half Clerks 22 H. 6.29 b. and the other half Lay-men and if they refuse being duly summoned to appear the Commissioners may proceed against the Clergy-men by Sequestration and the Lay-men by Ecclesiastical Censures to compel an appearance When a full Jury of Clergy-men and Laicks appear which must be six of each at least the Commissioners are to swear first a Clergy-man and then a Lay-man till twelve be sworn at least of the Jury But the Commissioners may swear a greater number than twelve of the Jury if they please or see cause so always that there be an equal number of Lay-men and Clergy-men sworn in the whole The points inquirable by this Commission are five Callis Reading 29. 1. The points inquirable in a Jure Patron Si Ecclesia vacat quomodo vacavit 2. Quis Patronus ultimò presentavit 3. Quis est verus indubitatus Patronus 4. Quis praesentare debet ad Ecclesiam nunc vacantem 5. De Indonitate persona praesentatae But the main and chief points are the third and fourth the last resting wholly in the Judgment of the Bishop After the Jury is sworn and charged 21 H. 6.45 a. the Counsel and Advocates of both Parties are to shew their respective Clients Titles and produce their Evidences to prove the same And after the Evidence is given on both sides and Counsel fully heard the Jury may give their Verdicts forthwith or the Commissioners may give them time to consider of their Evidence and may assign them another time and place for the giving their Verdict as in other Inquests of Office 22 H. 6.29 b. but I like much better to avoid being tampered with that they give their Verdicts forthwith before the Party unless new Evidence be expected The effect of this Suit is no more but for the Bishop's security The effect of a jure patronatus that he may avoid being a Disturber for the verdict of this Jury is a sufficient warrant for the Bishop to admit and institute his Clerk for whose title the verdict is given and the Bishop for so doing shall never be made a Disturber though the other Patron against whom the verdict is given shall after recover in a Quare Imp. or other action But suppose the Jury will not agree of their verdict What 's to be dâ—ne if the Jury will not give a verdict 3â— H. 6.18 b c. and the one half be for the one Patron and the other half for the other Patron or that they refuse to give any verdict at all or if they find a special verdict as I suppose they may the Bishop in all these cases is left to proceed at his peril as though no jure patronatus had issued at all or perhaps in this case he may discharge the Jury 34 H. 6.12 a⸪ Callis Read 29. What 's to be done where Coperceners Joynt-tenants or Tenants in Common present severally 21 H. 6.45 a⸪ per Ascur 34 H. 6.40 5 H. 7.8 11 H. 4.58 33 H. 6.32 1 Inst 186. b. and summon a new jure patronatus And it is to be observed that after a verdict found in a jure patronatus for the Patron the patron must again request the Bishop to admit his Clerk otherwise if the Church lapse after six Months the Bishop may Collate But if two Coperceners present several Clerks by the same Title this doth not make the Church litigious but the Bishop is bound to admit the Clerk of the elder fister but this is to be intended where the eldest sister presents alone and not joyntly with any other of the Coheirs But if two joyn-Tenants or Tenants in Common present several Clerks Doct. and Stud. 115. b. Kite vers Evesque Bristow P. 7. Jac. C.B. 1 Inst 186 b⸪ 6 E. 4.10 b⸫ 34 H. 6.40 b⸫ Vbi supra that makes not the Church litigious for the Bishop may admit the Clerk of which he pleases or if they do not agree and joyn in presenting a Clerk within the sixth Month the Bishop may collate And note that the Bishop needs not to make Commissioners to inquire De jure patronatus but he may if he pleases do the same himself If the Commissioners neglect their duties 22 H. 6.30 a⸫ and therefore if his Commissioners neglect to do their duties it shall not excuse him because it was his folly to name such Commissioners But the opinion of the Civilians seems otherwise for they say that the party shall name the Commissioners and if they neglect their duties it shall be at the
spent upon their Rectories and Church-Livings And they are quit of Pontage Murage and other like charges Pontage Murage and if they be distrained for any of these they may have a Writ out of the Chancery as aforesaid made of Course without petition or motion made under the great Seal of England directed to the party that distrains or disturbs them for any of these things commanding them to desist and if such Writ be not obayed the Cursitor of Course will make out an alias and pluries and if none of those will be obeyed an Attachment to arrest the party and detain him till he obey Regist 260. a. Fn. b. 227. f. and this Writ is called a Writ De essendi quietum de Toloneo which you may see in the Register or in the natura brevium They are not bound to appear or do suit at the Sheriff's Turn or any Leet or Law day Not bound to appear at Leets and Sheriffs Turns Regist Or. 175. a. Fn. b. 160. C. and if they shall be distrained so to do they may have a Writ of Course in the Chancery directed to the Lord of the Leet commanding him to forbear distraining them for any such Cause with like process as in the last for his contempt And by the Statute of circumspecte Agatis it is enacted Stat. 13. E. 2 Inst 491 492 493. De violenta etiam manuum injectione in clericum in causa defamationis placitum tenebitur in Curia Christianitatis dummodo ad correctionem peccati agatur non petatur pecunia And if a Clergy-Man have Lands Regist or 187. b. Fn. b. 175. b. Not to be Bayliffs Reaves c. by the tenure of which he is subject to be Bayliff Reave or Beadle and be chosen into any such Office by reason thereof he has a Cursitory writ out of the Chancery to discharge himself Beg. or 188. a⸫ F.n. b. 176. a. Must not be disturbed by Câ—llector of Tenths So if the Sheriff or Collector of the Tenths or Fifteens will disturb them in the Lands belonging to their Churches c. they may have the like Writ for their discharge and like Process for disobeying of it ut supra Antiently if a Clergy-Man had been convicted of any Murder Robery Burglary c. The Priviledg of Clergy in criminal Cases he was upon the demand of his Ordinary to be delivered over to him where he was to make his Purgation according to the Rules of the Ecclesiastical Laws and if he cleared himself he was acquit * Lindwood cap. Clerici pro suis criminibus detent gloss verb. pro convictis West 1 c. 2. Marleb c. 27. 25 E. 3. cap. 4 and 5. 4 H. 4. c. 3. without any regard to his Conviction at Common Law but if they adjudged him guilty then he was to be degraded and kept in Prison and this was confirmed to them by several Acts of Parliament But this priviledg was never allowed to them in this Kingdom in Treason petit Treason or Sacriledg And a Delinquent might have had his Clergy ad infinitum till the Stat. 4 H. 7. cap. 13. of 4 H. 7. And though this priviledg of the Clergy be taken totally away in many Cases by several Statutes and in other Cases Lay men have it in Common with the Clergy if they can read as a Clergy-Man and though the delivery of them over to the Ordinary be totally abolished yet the Clergy that are in Holy Orders at this day retain some of their antient priviledges which the Lay-Men are not capable of For if a Clerk in Holy Orders be convicted that is found guilty by the Petit Jury of a Crime for which the benefit of the Clergy is allowable at this day he shall not upon the allowance thereof be burned in the hand as a Lay-Man shall upon the producing of his Orders and if he have not them with him the Court may ex gratia give him time to produce them till any other Assise or Sessions And a Clerk in Holy Orders at this day shall have his Clergy ad infinitum from time to time which no Lay-Man can have above once The goods of Clergy-Men were by several Statutes exempted and freed from the King's purveyance St. 3 E. 3. c. 1. 14 E. 3. c. 1. 18 E. 3. c. 4. 1 B. 2. c. 3. but his Majesty having by Act of Parliament graciously released this Duty Purveyance the Laity hath the same priviledg A Clergy-Man shall not be amerced the higher in respect of his Church Living or Benefice 2 Inst 627. Not amercied for the Church-land Regist ov 289. F.N.B. 29. No Execution upon the goods of the Church Nor shall any execution be executed upon the goods of his Church nor any distress taken in the antient Fee thereof but otherwise it is of Lands of late purchase and if he fear any such thing he may have a Protection in Chancery cum clausula Quia nolumus If an Action of Trespass Debt Account 2 Inst 4. No Capias against a Clerk or other Action wherein Process of Capias lies be brought against a Clerk in Holy Orders and the Sheriff upon the Original return that the Defendant is Clerious Beneficiatus nullam habens Laicum feodum ubi summoniri potest in this Case the Plaintiff cannot have a Capias to arrest his body but a Writ to the Bishop to compel him to appear And note that all the Priviledges of the Church of England are confirmed by the Antient and good Statute of Magna Charta Priviledge of the Clergy confirmed by several Parliaments And so they were for the most part at the opening of every other Parliament after till the beginning of the Reign of H. 5. How it began then to be discontinued by the negligence of the Clergy or for what other cause I know not And so having thus briefly mentioned many of the priviledges of the Clergy Conclusion whereof the Common Law takes notice and to which they have right at this day by the Laws and Statutes of this Realm I shall not only conclude this Chapter but the first Part of this Discourse with Gloria Deo Omnipotenti Amen FINIS THE Second Part BEING THE LAW OF TITHES or TITHING Shewing in what manner all manner of Tithes Offerings Mortuaries and all other Church Duties are to be paid and in what Courts and manner they may be recovered and to what charges they are Subject With many other things fit for all People but especially all Clergy-men to know Written by Sir SYMON DEGGE Kt. LONDON Printed Anno Domini MDCLXXVI To his Worthy and Reverend Son in Law Mr. Anthony Trollop Rector of Norbury in Derbyshire Dear Son IT is now above thirty years since the Tithing Table published many years agoe came to my hand and upon perusal thereof finding that the Common Laws and Canon-Laws differed in many things I thought it would be a Work grateful to the
Chapter before Cap. 16. antea 2. Bounds of the Parish Co. 7.44 b⸪ Roll 2 29â— 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 whâ—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
estimari possunt usque ad quartam quintam vel sextam partem advocationis Et ultra quam partem non extenditur prohibitio For a Sixth Part. prout sibi videtur But whatsoever the Common Law was it is now setled by the Statute of Circumspecte Agatis and Articuli Cleri cap. 2. That unless at least the Tithes in demand be of the fourth part of the value of the Church this Writ lyeth not the Statute of Articuli Cleri cap. 2. is Articuli Cleri c. 2. si sit contentio de jure decimarum originem habens de jure patronatus earundem decimarum quantitas ascendat ad quartam partem bonorum Ecclesiae locum habeat Regia prohibitio that is to say a Writ of Judicavit And this Writ lies as hath been said where one Parson demands Tithes against another Parson to the fourth part of the value of the Church or more 2 Inst 491 ◠Where the Judicavit lyes which come into their Churches by several Patrons for if the Incumbents come in both by one Patron the right of the Advowson cannot come in question and by consequence this Writ lies not And it is to be observed that this Writ doth not lye before Libel F. N. B. 45. b. c. 12 E. 4.13 When. nor after definitive sentence for the party that prays this Writ must shew a Copy of the Libel in the Court of Chancery before he can have it And though the Law be restrained at this day to a fourth part of the value of the Church 2 Inst 3.64 .. The Form of the Writ not altered by the Statutes where before it was at large Yet the form of the Writ remains and if the thing in demand be under the fourth part of the value it must be shewed in pleading by the other side And this Writ lyes as well for offerings F. N. B. 45. b. Lyes of Offerings as for Tithes When such Writ is sued and served and the proceeding in the Spiritual Court stopt then the Plaintiff there is to sue his Writ of right of Advowson of such a portion of Tithes as the case requires and this is given by the Statute of West 2. cap. Westm 2. c. 5. 5. in these words Et cum per breve de Judicavit impeditur Rector alicujus Ecclesiae ad petendas decimas invicina parochia habeat patronus Rectorisic impedito breve ad petendam advocationem decimarum petitarum but this must be intended where the Patron has the Fee-simple of the Advowson And the Judicavit is to be brought in the name of the Patron and his Clerk against the other Incumbent that sues in the Ecclesiastical Court and his Patron By whom F.N.B. 45. b. But where the same Person is Patron and Incumbent su solem 12 E. 4 13. b. 7. but the Writ of right of Advowson is to be sued by the one Patron against the other and the Patron demandant shall alledg examples taken by his Incumbent of great and small Tithes But if the Patron against whom the Judicavit is sued F.N.B. 30. b. The relief of Tenant in tail Purveyance c. 2 Inst 364⸪ be but Tenant in Tail Tenant for Life or Years then he cannot maintain a Writ of right but must demand and appear to a Declaration upon an attachment and plead his Title which must be proceeded in as in other prohibitions and when the Title of the Patronage is determined at Common Law then the cause must be remitted to the Ecclesiastical Court where Sentence must be given according as the Law has determined the Right and this appears by the Form of the Judicavit The Proceeding remitted which is special Vobis praecipimus ne placitum illud teneatis Regist 36. a⸫ 35. b⸪ donec discussum fuerit in Curia nostra ad quem illorum pertineat ejusdem Ecclesiae advocatio And there is a note in the Register that this Writ lyes of a Vicarage Prebend aliis similibus as well as of a Rectory and the Form of the Writ is thus Praecipe A. quod reddat B. advocationem decimarum quartae partis vel medietatis Ecclesiae F.N.B. 30. E. c. But these Writs as well as other real Actions are grown obsolete and seldom put in practice and therefore thus much shall suffice of the nature and proceeding in them The third manner of proceeding for the determining the Right of Tithes at Common Law was by Scire facias Scire facia◠18 E. 3. c 7. which was grounded either upon Letters Patents Fines or other Judicial Records Seldens hist decim 439. c. Co. Inst 2.640 2 Inst 640 c. Writs mandatory of which Mr. Selden instances several Presidents but this manner of Trial being taken away by the Stat. of 18 E. 3. c. 7. I shall say no more of it The fourth sort of determining the Right of Tithes at Common Law mentioned by Mr. Selden is Writs Mandatory commanding the payment thereof whereof he gives some few Instances but these having never been frequent and for long time discontinued and grown out of use I will not trouble the Reader with them but refer the curious Reader to Mr. Selden 444. c. Seldens History of Tithes and proceed to the fifth manner of determining the Right of Tithes at the Common Law which is grounded upon the late Statutes For the Statute of 27 H. 8. there hath been sufficient said already for that of 32 H. 8. that concerns the Temporal Jurisdiction I shall leave till the last and proceed to shew what Authority is given to the Temporal Courts by the Statute of 2 E. 6. cap. 13. being the first Law that ever gave the Temporal Courts Jurisdiction for the Parson against the Parishioners for Subtraction of Tithes in which there is a Clause to this effect 2 E. 6. c. 13. And it is enacted by that Statute after it has confirmed the former Statutes of 27 H. Treble Value 8. c. 20. and 32 H. 8. c. 7. That every of the Kings Subjects should from thenceforth truly and justly without fraud or guile set out yield and pay all manner of their predial Tithes in their proper kinds as they arise and happen in such manner and form as hath been of Right yielded and paid within forty years next before c. or of Right or Custom ought to have been paid and that no person thenceforth should take or carry away such or like Tithes which had been yielded or paid within the said forty years or of right ought to have been paid in the place or places Tithable of the same before he hath justly divided or set forth for the Tithes thereof the tenth part of the same or otherwise agreed for the same Tithes with the Parson c. under the pain of the forfeiture of the treble value of the Tithes so taken and carried away This Clause being compared with the former Clause
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