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Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	find_v	plaintiff_n	verdict_n	1,757	5	11.2828	5	false

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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

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

then c. And in an action of debt brought upon this Bond the Defendant pleaded non requisivit which was found against him and in arrest of Judgment it was moved that this Bond was made for the performance of a Symoniacal contract and therefore void but notwithstanding the Court gave Judgment for the Plaintiff and two reasons are given for the Judgment the first was because there was no averment of the Symony second that it was not material as to the Bond because that Statute did not make the Bond or Contracts void but only the presentation c. for this I clearly infer from the conclusion of the case But I confess the sense of the Court was that in truth if a man be preparing a Son for the Clergy and have a Living in his disposal which falls void before his Son be ready he may lawfully take a bond of such person as he shall present to resign when his Son is become capable of such Living and I have nothing to say against that opinion but it is very just and reasonable nature obliging that every one should take care for his posterity but if a Patron take a Bond absolutely to resign upon request without any such cause as the preferment of a Son or to avoid pluralities or non-residence or such reasonable cause but only to a corrupt end and purpose to exact Money by this Bond from the Incumbent or attempt it though perhaps the Bond may be good against the Person that entred into it yet I am clear of opinion for my own part that the said Bond makes the Church void and gives the presentation to the King and it should seem in Jones and Laurence's case that if Symony had been averred it would have been left to a Jury to have adjudged what the intention of the corrupt Patron was The other Case upon which these subtil Simonists build Cro. Car. 180. Hur. in Jones 220. was between Babbington and Wood 5 Car. 1. B. R. where the Case was likewise in debt upon an Obligation with a Condition that whereas the Plaintiff intended to present the Defendant to such a Living that if the Defendant upon request after his admission should resign that then the Bond to be void c. Upon Oyer of this Bond and Condition the Defendant demurred and Judgment was given for the Plaintiff But all the Court conceived that if the Defendant had averred that the Obligation had been made with intent to exact money make a Lease c. which in it self had been Simony then upon such a Plea peradventure it might have appeared to have been Simony and then it might have been a question whether the Bond had been good or no but upon this Demur it did not appear there was any Simoniacal Contract and such a Bond might be made upon a good and lawful design as the preferment of a Son as in Jone's and Laurence's Case before to avoid non-Residence Pluralities c. So that it appears by both these Cases that Bonds taken upon prudent and just ends to resign are non-Simoniacal but where such Bonds are taken upon corrupt designs and it be made appear by any subsequent practice or action it is clearly Simony as if the Bond had been expresly to pay money for what difference is there between a Bond expresly to pay money and a Bond to resign which is to pay money if the Patron say either pay me so much or resign when all the world knows in such a Case the Parson must pay the money or resign and be undone And the world shall never perswade me that those reverend Judges that gave these Judgments ever intended further and I hope that those reverend Judges that now supply their places will discountenance and discourage such practices that tend so much to the ruine of the Church and Religion for I know no Law that tends more to the advancement of learned and religious men than this Law doth and therefore ought to have a benign construction to the end it was designed I find a Case reported Noy 22. T. 15 Jac. ro 2051. C. B. I cannot say that is by an Authentick hand but such as it is I will give it the Reader it was between Sir John Pascall and one Clerk in the 15 year of King James upon evidence to a Jury it was held that such a Bond was Simoniacal but the Circumstances not appearing in the book the Case can be of no great Authority But before I shake hands with these Bonds for Resignation it will be convenient I give my young Clergy-man some cautions against them for it is an old saying the Resetter is worse than the Thief for without Resetters there would be sew theeves And 1. Advice against Bonds for Resignation I hold it a great disreputation for any Clergy-man to give any such bond which may have the least tincture of Simony nor do I believe any man of worth will do it unless it be upon such reasons as aforesaid 2. If such Bond carry with it a Simonaical corrupt design it makes the Clerk no less guilty of Simony than the corrupt Patron and then the Clerk not only loses his Living by this Statute and is for ever incapacitated to have it by any suture Presentation and by the Canon-Law is to be degraded and incapacitated to all other Lastly if he do not resign upon request 3 Inst 153. Margine Noy 72. he is subject to the whole penalty of the bond for Simoniacal Bonds Contracts c. are not made void by this Act but only the Presentment c. And so you may observe a difference between malum in se and malum prohibitum by the Statute or by the Canon-Law whereof the Judges at Common Law take no notice It is now to be considered What Covenants and agreements are within this Law what Covenants or Agreements shall be said to be Simoniacal within this Law If a Father-in-Law upon the marriage of his Daughter covenant with his Son-in-Law without any consideration Cro. ●ar 425. but voluntarily that when such a Church falls void which is in his gift that he will present him to it this is no Simony within this Law but it should seem that such Covenant in consideration of marriage or any other consideration had made it Simoniacal So where the Patron took a bond from the Presentee to pay 10 l. Noy 142. Baker vers Mountford yearly towards maintainance of his Predecessor's Son whilst he remained in the University unpreferred was held no Simony And in that Case it was said by Foster Justice that it was adjudged in the Earl of Sussex's case where the Patron took a Bond of the Incumbent to pay 5 l. per annum to the Widow of his Predecessor it was not Simony these were good charitable Resolutions sed quaere rationem inde and Foster said that notwithstanding great opposition in that Case the Parson enjoyed the Living at that time In the

Clergy and useful to others to publish something in order to the reconciling of them To which end I had gathered together some materials but the War coming immediately on and after that the Ecclesiastical Courts being laid aside and other Courses found out for the Recovery of Tithes I desisted the further Prosecution of that design until it was revived at your Request seconded by some other Reverend Divines whereupon looking up my old Notes and adding such Judgments and Resolutions that I have since come to the knowledg of the whole is reduced to the form I here present it to you you have most Right to it and I heartily wish it may be of as great Service and advantage to you and all the Reverend Clergy as is desired by him that is Your affectionate loving Father S. D. THE LAW OF TITHES or TITHING CHAP. I. The First Chapter shews what Tithes are the several sorts and kinds thereof and in what manner due HAving in the former part of this discourse shewed the worthy and Reverend Clergy-Men in what manner they may lawfully and justifiably attain to such preferments in the Church as they are capable of and in what manner they may avoid all the perils and dangers that attend the Beneficed Clergy-Men it rests now that I shew him what profits they may justly challenge to belong to their Church-preferments and in what manner to be paid and how to be recovered if need require And first of Tithes which the Canonists define to be Definition A tenth part or portion of increase commanded to be paid to the Sons of Levi for their Ministry wherein they served in the Tabernacle Or as some others define them they are Omnium bonorum licitè quaesitorum quotae pars Deo Divina institutione debita But the Common Lawyers define them to be An Ecclesiastical Inheritance Collateral to the Estate of the Land Co. 11.13 b. and of their own proper Nature due only to an Ecclesiastical Person by the Ecclesiastical Laws And for that reason no unity of possession can extinct or suspend them but they notwithstanding any such unity remain in esse and may be demised or granted notwithstanding any such unity but may more properly in my judgment be defined to be A tenth part or some other thing in lieu thereof of all the Increase yearly arising forth of the profits of the Lands and Stock or raised by the Industry of the Parishioner and properly due to the Clergy that have the Cure of the Souls in the Parish where they arise And by some Canonists Tithes have been divided only into two kinds that is Division Predial and Personal and in this manner of division they comprehend all manner of Tithes that arise either immediately or mediately from the Land under the name of Predial Tithes Doct. Stud. l. c. 55. p. 168. b. Lindwood c. Quoniam prepter verbis divid end est decima which they again distinguish in Predial mediate and immediate under which they comprehend the Tithes of Corn Hay Wood Herbs and all other things that either come from the ground by manurance or of its own Nature and under the name of Tythes Predial mediate is comprehended the Tithes of all manner of Cattel and other things that receive their nourishment from the ground But Tithes by the Common Lawyers 2 Inst 649. Roll 1.635 a. and which division I shall observe in my discourse are divided into Predial Mixt and Personal and according to this division all Tithes that arise from the ground as before is said immediately Lindwood c. Quoniam propter verbis talibus decimis are only accounted to be Predial and those that arise from Cattel and other things that receive their nourishment immediately from the ground they call Mixt and those that arise from the Labour and Industry of Man alone Personal Tithes again both by the Common Lawyers and Canonists are divided again into great Tithes in Latine majores seu grossae decimae and into small Tithes in Latine minores or minutae decimae And in this division Corn Hay and Wood are all accounted gross or great Tithes But there has been some question whether Tithe Wood should be accounted a great or minute Tithe and resolved that if a Vicar be only endowed with the small Tithes Rolls 1. 643. v. 2. 2 Bulst 27. and have by reason thereof always had Tithe Wood that in such Case it shall be accounted a small Tithe otherwise it is to be accounted amongst the great Tithes But all manner of Tithes of Gardens Herbs Roots Fruit Saffron Woad Cro. El. 467. Hutton 77. Cro. Car. 28. Rolls 1. 643. v. 3. whether sowed in Fields or Gardens Flax Hemp Hops Rape and all other Predial Personal and Mixt Tithes are accounted inter minutas decimas but in Vdal's and Tyndal's Case Hutton 77. in some Cases Hops Woad c. may be great Tithes in places where they are much sowed And herein the Custom of England is kind to the poor Vicars Lindwood c. Quoniam propter verb. talibus decimis making many things to be allowed for Minute Tithes that are not so in others I have been the longer in this division of Tithes between great Tithes and small Tithes because many Vicarages are indowed with the small Tithes only and in some old Indowments you will find the word Altera omnia Spelm. Gloss 28 Cro. El. 578. Hetley 135. which by Custom may as well comprehend the small Tithes as such profits as arise from the Altar Now perhaps it may be expected Quo Jure debet I should say something to satisfie the Reader by what Law Tithes became due under the Gospel But in that point I find so great a difference between the Canonist School-men and Divines that it would be a great presumption in me to take upon me to determine the point the rather because I am informed by a reverend learned and grave Divine Helyns Hist of Presbytery 391. Seld. Hist decim cap. 5. Sect. 4. cap. 7. And in the end of the Epistle to the Reader that the learned Selden retracted his opinion therein and what it was you may see in the places noted in the Margent But so far as I have observed they all agree in this That Tithes quoad sustentationem Cleri vel ministrorum Dei are jure divino So that the sole question amongst all these learned men is about the quantity The Question or quota pars But be they due jure divino jure Ecclesiastico or jure humano I conceive the difference cannot be great since as it must necessarily be confessed they have been given and consecrated Deo sanctae Ecclesiae and so being dedicated to God and his Service in my poor Judgment the taking them away from the proper use and end cannot be less sacrilegious Doct. Stud. l. 2. cap. 55. f. 164. b⸪ 65 a⸫ than if they were without dispute jure divino