c. have had an Acre or piece of Meadow ground time out of mind in discharge of all the Tithe Hay arising upon such a Farm this shall only discharge the Hay upon the antient Meadowing and not the Hay of Ground converted from Pasture or Tillage to Meadowing But if one have a modus for all the demesn of his Mannor Roll 1.651 E. 1. 2 Inst 490. and erect a new Mill this shall be comprehended within the modus and shall not pay any Tithe But if a Man have a modus for all the Hay and Grass upon twenty Acres of Land Roll 1.651 E. 2. and converts the same to Tillage or into a Hop Yard he shall pay Tithes thereof Where a modus to the Vicar shall discharge against the Parson and è converso More 907. Cokes Select Cases 45.1 Cro. El. 137. Hutton 57 m. 10. Jac. r. 641. Modus to pay a rate to the Vicar for Tithes due to the Parson So it appears a great difference where the modus goes to all manner of Tithes in general and where to particular Tithes Where a modus is alledged to pay a certain Summ to the Vicar in discharge of any Tithes due the Parson this being a dispute of the right between two Clergy Men ought to be determined in the Ecclesiastical Court but it seems to be a good modus as to the Parishioner and so it was held in the case of Pool and Reynels in the Kings Bench. Mich. 10. Jac. But Mr. Ware reports a case to be adjudged H. 18. Jac. B. R. that it was no good modus and that Henden vouched one Bankes Case to be adjudged accordingly Ideo quaere But it seems to me a good modus for this being Originally a modus between the Parson and Parishioner the Vicar might be indowed with the modus but this must be intended also where the indowment is time out of mind and not to be produced or where the Vicar hath it specially in his indowment But to pay a rate to the Parish Clerk is no good discharge of Tithes against the Parson or Vicar Leonard 1.94 Croke El. 71. Bulst 1.220 Wintel vers Child m. 14. Jac. B. R. unless the Parson be bound by Custom to find the Parish Clerk nor is a modus to the Parson a good discharge against the Vicar And so having shewed what Prescriptions de modo decimandi and de non decimando are good and allowable at the Common Law in the next place I shall shew how a modus decimandi or Prescription may be destroyed or lost CHAP. XVII The Seventeenth Chapter shews how a modus decimandi or Prescription may be lost or destroyed IF a Man have a modus for a Mill which is removed of necessity to a new place because the water invito has changed its course Roll 1.652 f. 2. What matter will destroy a Modus here though the Mill be removed the modus remains But if the Owner of such a Mill shall of his own accord and without any cause of necessity remove his Mill to a new place in this case he shall lose his modus If a Man have a modus decimandi for two Messuages and two Mills to pay twenty shillings per annum Roll 1.652 f. 2. and he erects a new Mill in one of the Messuages the modus shall not extend to free the new Mill. There have been Opinions that Unity of Possession Stepney vers Warren P. 41. El. B. R. that is to have fee-simple in the Rectory and likewise in the Land to which the modus is annexed should destroy a Prescription or modus decimandi But if a Man have four Water Corn Mills for which he hath time out of mind paid a modus of four shillings per annum Sir John Hollys Case T. 9. Jac. B. R. and pulls down one of them yet the modus remains and he shall still pay the four shillings CHAP. XVIII The Eighteenth Chapter shews by what Conveyances and by what names Tithes may be granted conveyed demised c. and what Demises Parsons and Vicars may make of their Glebe and Tithes REgularly Tithes at this day cannot be granted or demised but by Deed in Writing under Hand and Seal Stiles 261. By what Conveyances Tithes will pass Hungerford vers Haml. T. 36. El. ro 506. per Owen Cro. El. 814. or by matter of a higher nature as Fines Recoveries c. But in such cases as they are become Lay-see they may be devised by will in writing as Lands may but they cannot be granted by Copy of Court Roll because they cannot be parcel of a Mannor But Tithes cannot be conveyed or demised by any paroll agreement Brettyman vers Woodward P. 31. Eliz. 10.17 B. R. B. Noy 89. Hetley 3. Hughes 373. Bellamy vers Bapthorp in 2 Car. 10.179 B. R. Co. 4.35 a⸪ unless it be to the Owner of the Land for one year by way of retainer Tithes impropriate are at this day by the several Statutes of dissolution become Lay-fee and will pass by the name of Hereditaments but by the grant of a portion of Tithes the Tithes belonging to a Rectory will not pass Tithes impropriate may be past from one to another by Deeds of Bargain and Sale St. 32 H. 8. cap. 7. inrolled according to the Statute of 27 H. 8. they may be transferred in use upon good consideration by Deeds of Covenant to stand seized or by Fines or common Recoveries and may be sued for by Writs of Assise of novel disseisine Writs of Entry Writs of Right or other real Actions or by ejectione firmae But upon a Lease for Lives of Tithes no Rent can be reserved to be recovered at or by the Common Law for no Action of debt will lie or distress can be taken ubi non est remedium ibi non est jus But upon a demise of Tithes for Years a Rent may be reserved because an Action of debt will lye upon such Lease upon the Contract CHAP. XIX The Nineteenth Chapter shews what barren Lands are free from the payment of Tithes within the Statute of 2 E. 6. cap. 13. IN the Statute of 2 E. 6. 2 E. 6. cap. 13. there is a Proviso to this effect That all such barren Heath or wast Ground other than such as be discharged from the payment of Tithes by Act of Parliament which before this time have lain barren and paid no Tithes by reason of the same barrenness and now be or hereafter shall be improved and converted into arable ground or meadow shall from henceforth after the end and term of seven years next after such Improvement fully ended and determined pay Tithe of Corn and Hay growing upon the same any thing in this Act to the contrary in any wise notwithstanding This Clause was added for the Incouragement of Tillage and Improvement of lands by water or otherwise and therefore though here be no words of discharge of the payment of Tithes
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.
as to Rakings without fraud To prescribe to have paid the Tenth sheaf or shock Roll 1.648 b. 6. as it falls out is no good Prescription to free the Parishioner of any other Tithe it being no more than is due A modus that in consideration Roll 1.649 d. 4. that the Parishioner hath sowed reapt bound and set up the Corn one year to be free from the payment of herbage the next year of the same Land was held good tamen quaere inde But it is no good consideration Roll 1.650 d. 11. that in consideration the Parishioner has plowed sowed mowed cockt and set out the Tithes of part that therefore he should be freed of paying Tithes of a small parcel left standing A man may prescribe to pay the Tenth Acre or Rood of wood standing Wood. Roll 1.648 H. 7. and the Parson c. cut it himself as is used in some parts of Lincolnshire It hath been held a good modus to pay one Calf at seven Calves and milk and if under a half penny a piece and if he sell any Calf to pay the tenth part of the price and it hath been held a good modus to pay Tithe Cheese from Mayday till Michaelmas to be discharged of the whole Tithe of the Cows Roll 1.651 d. 19. Cro. El. 609.786 and no Tithe is due for Cheese but by Custom and the labour of milking and making into Cheese is added whereas nothing but the Tithe of milk is due by Law But it is no good modus to pay for every milch Cow 2 d. Roll 1.651 d. 17. and for every Calf 1 d. in discharge of the Tithes of all other Cattle but it is a good modus for the Calves and milk only so a modus to pay a Tithe-Calf in satisfaction of the Tithe of all manner of Cattle is not good Roll 1.651 d. 18. Eggs. Roll 1.648 c. 3. A modus to pay thirty Eggs in Lent in satisfaction of all the Tithe of Eggs has been hold a good modus It is a good modus that the Parson time out of mind hath had so much Land in lieu of Tithes Roll 1.649 d. 6. Cro. El. 587. 8 E. 4.14 a⸫ or such a parcel of meadow or Land in satisfaction and discharge of all the Tithes of Hay c. arising upon such Land It is no good modus to be free from the payment of Tithe Hay Headlands Balks c. and Hay Roll 650. d. 10. Noy contra 15. arising upon Hades Balks Greenslips or Doals eaten by Beasts of the Plow in regard the Parishioner hath sow'd mown reapt shockt and prepared the Corn c. but the contrary hath been held ideo quaere But in consideration Herley 147. that the Parishioner hath made the Grass growing in such a Close and then paid the Tithe of it he hath been free of the payment of the Tithes of the balks and hades has been held good It is not a good modus Roll 1.650 d. 3. that the Parishioner having spent all his Hay upon the Beasts of the plow that therefore he should be free from payment of Tithe Hay But a modus that in consideration the Parishioner hath cut Roll 650. d. 13. dryed and shockt the Corn he hath been freed from the payment of Tithe Hay has been held a good Prescription A modus That the Parishioner hath time out of mind got Rushes and strewed the Church Noy 31. and in consideration thereof hath been discharged of the payment of Tithe Hay Cro. El. 276. has been adjudged no good modus but if it had been to strew the Parsons Seat or to deliver straw to the Parson to strew the Church had been a good modus And it hath been held a good modus Roll 1.647 b. 1 2 3 4. 648. d. 1 2. 649. d. 3. Hetley 133. Hob. 250⸪ More 910. Cro. El. 660. that in consideration the Parishioner has made the Hay into Grass Cock that therefore he hath been discharged of the Tithe of the aftermath but Sir Edward Coke declares for Law that there needs no modus to be alledged but that after-math is of it self freed from the payment of Tithes 2 Inst 652. and so I take it the Law is held at this day A modus to pay the tenth part of all the honey and wax of Bees killed Bees Roll 1.651 d. 15. has been held a good modus for the Tithe of Bees But there have been some opinions that there is no Tithe due by the Law for Bees because they are ferae naturae But nevertheless by Custom they may be Tithable and so they are in most places A Custom or Prescription to pay no Tithe for the Herbage of Beasts bred up for the Plow and Payl hath been allowed to be a good Custom Herbage Bulst 2. Price vers Mascal More 909. but of this see more before in the fifth Chapter It is no good modus that the Owner of the Land has paid all his Tithe for his Cattel there depastured Guest Horses Roll 1.650 d. 14. therefore to be free of the Tithe Herbage for guest Horses It hath been held that no Tithes shall be paid for the fewel spent in the dwelling Houses in the same Parish it grew Fewel More 909. without alledging any modus at all But it should seem that in this last Case there needs no modus at all to be alledged Cro. Car. 113. Norton vers Farmer T 4. Car. 1. C. B. but that for the fewel spent in the Owners House in the same Parish there is no Tithe due of Common right Ideo quaere If a man prescribe to pay six shillings and eight pence Parks Roll 1.651 E. 1. and 4. Mascal vers Price P. 13. Jac. B. R. Hob. 39⸪ Hutton 58. for all the Tithes arising and happening in such a Park and the Park is disparkt and turned to tillage the Prescription is gone But if in this Case he had made his Prescription that in consideration of six shillings and eight pence yearly paid to the Parson c. he had been freed of all the Tithes arising upon six hundred Acres of Land called a D. Park this had been a good Prescription and should have freed the Park So if the Prescription of a Park have been to pay six shillings and eight pence Roll 1.652 E. 5. and a shoulder of every Buck kill'd in the Park in discharge of all Tithes arising within the same in this case though the Park be disparked and no Deer left Boothâ—y vers Reynells m. 20. Jac. B. R. m. 10. Jac. ro 641. B. R. Hutton 57. Noy 146. yet the modus remains and shall discharge the whole Tithes And it has been held a good modus to give a Buck and a Doe yearly to the Rector c. in discharge of all the Tithes arising within the Park although they be ferae naturae If a Parson Modus for Land Hutton 58.
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
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