That the Land was parcel of the Glebe of the Parsonage and that the said Stile did Lett the said Glebe being twenty four acres to Miles for years rendring thirteen shillings four pence Rent and in a Prohibit on the Case was if Tithes were to be paid And Wray said That although it was parcel of the Glebe yet when it was Leased out Tithes ought to be paid without question But there may be a doubt where the Rent is reserved to the true value of the Land but here the Rent is of small value wherefore Tithes shall be paid also And the Reservation of the Rent was Pro omnibus exactionibus demandis yet the Justices took no regard of these words But Godfrey said that those words would discharge him But Wray on the contrary for that this Tithe is not issuing out of the Land but is a thing collateral and if a Parson do Release to his Parishioners all demands in the Land yet Tithes are not thereby Released for such general words will not extend to such a Special matter 27. A. Parson of B. in consideration of 120 l. paid by C. one of his Parishioners did accord and agree with him That he and his Assigns should be discharged of Tithes during the time that he should be Parson C. made a Lease to D. A. did Libel against him for Tithes and D. pray'd a Prohibition upon the said Contract And if this were sufficient matter for a Prohibition was the question because it was by word only and without writing which amounts only to a Cause of Action upon a Promise for C. but no Action for his Lessees neither can this amount to a Release of Tithes for as Tithes cannot be Leased without Deed so they cannot be Released or discharged without Deed. Gawdy Justice Tithes cannot be discharged without Deed unless by way of Contract for a Sum of money and he cited the 21 H. 6. 43. Fenner for that year in which the Discharge was made it was good by way of Discharge without Deed because the Parson for that year had as it were an Interest but such Discharge can have no continuance for another year for default of a Deed and so a Promise being no Discharge it is no cause of a Prohibition But Gawdy held as afore And the Court Popham succeeding Wray Chief Justice upon his death held that the Agreement being by parol was not good and Fenner then said That without Writing the Agreement could not be good between the parties but for one year And the Court awarded a Consultation But upon search made no Judgment was entered in the Roll 28. Note That in Layton's Case it was said by the Court That a Parson may sue pro modo Decimandi in the Ecclesiastical Court. As if a Parishioner will not put his Tithes into Cocks when he ought by the Custome so to do But then the Suit ought to be Special for not putting it in Cocks and not generally for not setting forth the Tithe 29. It was likewise agreed by the Court in Clark's Case against Proâ—se that the Ecclesiastical Court may take cognizance of a Modus Decimandi The Case was this Clark a Parson sued Prowse one of his Parishioners per mod Decimandi in the Ecclesiastical Court and alledged a Custome in his Bill so called in the Report to have two shillings of the pound for every House and Shop in the Town and upon that Suit the Defendant there answered to the Custome Quod non credit esse vera And so to have here a Prohibition it was alledged That the Defendant was a Butcher that set open Stall in the Market only to fell Flesh there and that he had not any other Shop or House And it was agreed by the Court That a Parson may sue per mod Decimandi in the Ecclesiastical Court But if it be denied the Chief Justice as also Jones said That in that case they could proceed no further because they cannot try matters of Prescription there and if they proceed a Prohibition But in this Case the Prohibition was denied because Doderidge said That for the Reasons supra power is given to the Spiritual Court to examine that matter because it is not a denial of the Prescription but it ought to be by Allegation 30. It was said in Catesby's Case That if a Copyholder of the Kings Mannor pretendeth Prescription for a Modus Decimandi against the Parson the Right of Tithes shall be tried in the Exchequer and a Prohibition was granted to the Ecclesiastical Court in this Case 31. In Pool's Case against Reynold Prescription to have Deer out of a Park in discharge of all Tithes and after the Park is disparked P. brought a Prohibition against R. the Surmise was That de temps d'ont memory c. within the Parish of C. there was a Rectory appropriate and the Chappel of S. annexed therewith Et una Vicaria perpetua ejusdem Ecclesiae de C. dotat And whereas the said P. â—or six years last past had occupied one House 100 acres of Land 20 of Meadow 40 of Pasture called Shute-Park within the said Parish of C. which said Tenements were anciently a Park and now disparked c. and converted into the said House 100 acres c. And that all the Occupiers of the said Park de temps d'ont memorie until the Disparking had paid to the Vicar there one Buck of the Summer-season and one Doe of the Winter-season c. in discharge of all Tithes of the said Park until the Disparking and after the disparking in discharge of all Tithes of the said Tenements which they had accepted for all the time aforesaid until the Disparking and after or otherwise agreed with the Vicar for them and traversed this Prescription and found for the Plaintiff In Arrest of Judgment it was moved by Henden That this Prescription extends to the Land quatenus it is a Park and that being destroyed the Prescription is gone c. and if it be to be paid or delivered out of the Park then it is determined vid. Lutterel's Case Coke lib. 4. Also this Prescription is against the benefit of the Church and shall not be enlarged and the Wood which is sold out of the Park shall not be discharged 14 Jac. Conyer's Case in C. B. Prescription That the Parson had two acres of Meadow given in discharge of all Tithes of Hay-ground viz. of all the Meadow in the Parish if any Arable Land be converted into Meadow it extends not to discharge that vid. Lutterel's Case Coke lib. 4. fo 8â— That an Alteration in prejudice to the Parson determines the Prescription vid. Terringham's Case lib. 4. He which hath Common purchased part of the Land all is extinct for it is his own Act but vide the principal Case in that of Lutterel adjudged That building of new Mills in the same place and converting of Fulling-Mills into Corn-Mills
Advowson lieth for him who hath an Estate in an Advowson in Fee-simmple or Right of an Estate therein to him and his Heirs in Fee-simple Which Writ being Quod clamat tenere de te doth suppose a Tenure and lieth not only for the whole Advowson but also for some part thereof As also because a Praecipe quodreddat lieth for it as hath been Adjudged As also that a Common Recovery may be suffered of an Advowson as hath been likewise Adjudged As also because an Advowson as other Temporal Inheritances may be forfeited by Attainder of Treason or Felony or lost by Usurpation six months Plenarty Recusancy Outlawry Negligence or Lacks of Presentment Translation or Cesser and given away in Mortmain As also for that the Wife shall be endowed thereof and have the third Presentment and the Husband shall be Tenant thereof by the Courtesie also it is successively devisable among Coparceners that the priority of Presentment shall be in the eldest Sister likewise it may pass by way of Exchange for other Temporal Inheritance and albeit during the vacancy of the Church it be not in it self valuable yet otherwise it is as to an Incumbent and by Grat of all Lands and Tenements an Advowson doth pass if not by Livery yet by Deed is transferable as other Temporal Inheritances and pass with the Mannors whereunto they are appendant by Prescription unless there were before a severance by Grant Deed Partition or other Legal Act which Prescription is so requisite to Appendancy as without which it cannot well be at all 8. An Advowson in Gross is understood as under a more beneficial qualification than that which is Appendant and that which is Appendant may by severance become an Advowson in Gross And therefore in the Case where a man being seized of a Mannor whereto an Advowson was Appendant and by Deed granting one Acre belonging to that Mannor unà cum Advocatione Ecclesiae did further by the same Deed give and grant the said Advowson the Question was whether the Advowson did pass as Appendant to the Acre or as an Advowson in Gross And the better Opinion was That by that Grant the Advowson was severed from the Mannor and was become in Gross for that the Deed shall be taken most beneficial for the Grantee to have the Advowson in Gross and not as Appendant to the Acre But in that case it was Agreed If the whole Mannor had been granted then the Advowson had passed as Appendant and not in Gross Yet an Advowson Appendant to a Mannor descending to divers Coparceners making Partition of such Mannor without mentioning the Advowson remains Appendant notwithstanding such Division and Severance from the Mannor Yea although the Mannor of D. to which an Advowson is Appendant be granted and by the same Deed the Advowson also of the Church of D. So as it is named no otherwise than in Gross yet it shall thereby pass only as Appendant 9. If the King makes a Lease for life of a Mannor to which an Advowson is Appendant without making any mention of the Advowson the Advowson remains in the King as in Gross as was granted by the Justices And it was said by them That in such case by Grant of the Reversion Habendum the Reversion with the Advowson the Advowson passeth not to the Patentee for that the Advowson was severed and became in Gross as to the Fee And in another Case where it was found before Commissioners That A. was seized of a Mannor to which an Advowson was appendant and that he was a Recusant convict whereupon two parts of the Mannor were seized into the Kings hands who leased the Mannor with Appurtenances and all profits and commodities and Hereditaments to the same belonging unto J. S. for 21 years if A c. and afterwards the Church became void In this Case it was held That albeit there was no mention in the seizure of the Advowson yet the Presentment belonged to the King and that the King alone should Present Secondly That there were no words in the Kings Grant to J. S. to carry away the Advowson from the King and that notwithstanding that Grant the Advowson remained still Appendant to the Mannor 10. By words implying meerly matter of profit or things gainful as Cum omnibus commoditatibus Emolumentis proficuis advantagiis and the like an Advowson will not pass because it is contrary to the nature of an Advowson regularly and therefore the Advowson of a Vicarage appendant to a Prebend passed not by a Lease with such words of several parts of the Prebend to which such Advowson was appendant Not will an Advowson appurtenant to a Mannor pass by the Grant of an Acre of Land parcel of that Mannor cum pertinentiis otherwise if the Grant be of the Mannor it self cum pertinentiis Yet in a Case where the King being seized of a Mannor to which an Advowson was appendant granted the Mannor to J. S. for life and then granted the Mannor to J. D. after the death of J. S. Habendum cum Advocatione and then by Parliament the King reciting both the Grants confirmed them by Parliament yet it was Adjudged in that Case That the Advowson did not pass Nor will an Advowson if once Appendant pass without special words of Grant thereof which may not be strained in the construction thereof to an unusual or unreasonable sense for which reason an Appropriation will not pass by the name of an Advowson but as aforesaid an Advowson of a Vicarage may be Appendant to a Prebend All which hath been Resolved in the fore-cited Case And if Tenant in Tail be of a Mannor to which an Advowson is appendant the Church being full and he grants proximam Advocatione and then dies by his death the Grant becomes meerly void as was also Resolved in Walter and Bould's Case In a Quare Impedit The Case was between the Chancellor and Scholars of Oxford and the Bishop of Norwich and others The Plaintiff counted upon the Statute of 3 Jac. That J. S. being Owner of an Advowson 2 Jac. was a Recufant convict and that afterwards the Church became void and so they by the Statute ought to Present One of the Defendants pleaded That the Advowson was appendant to a Mannor and that two parts of the Mannor were seized into the Kings hands by Process out of the Exchequer and that the King by his Letters Patents granted the Two parts to the Defendant with the Appurtenances and granted also all Hereditaments but Advowsons were not mentioned in the Letters Patents and so said the Presentation did belong to the Defendant It was Resolved That the Advowson did not pass by the word Appurtenances without mention of Advowson or words Adeo plena integra in tam amplo modo forma as the Recusant had the Mannor 11. In case a Patron be Outlawed and the Church becoming
been due to the Pope de jure Divino speeially for that Anthony de Becke for whom the Prescription was made was a Reteiner to the Court of Rome and made Bishop of Norwich by the Pope Vid. Co. Instit par 4. cap. 14. 2. It was an old Observation and of no less truth than Antiquity that there never was any Invention that ever brought more Treasure to the Bishop of Rome than this of Annates which is of far greater Antiquity than some Modern Writers suppose so Polydore Virgil. Pol. Virg. de invent rerum lib. 8. cap. 2. Et Annates more suo appellant Primos fructus unius Anni Sacerdotii vacantis aut dimidiam eorum partem Historians do not agree what Pope first imposed First-Fruits Wals An. Do. 1316. Trivet Ranulphus Cistrensis lib. 7. c. 42. Polyd. Virg. ubi supra Platina Fox c. This Tribute or Revenue long since when the Bishop of Rome had not such large possessions as now he hath yet at vast expence and charge to uphold and maintain his Dignity was gradually by little and little imposed on such vacant Benefices as himself conferred and bestowed which as Hostiensis contemporary with P. Alex. the Foâ—rth doth affirm was often complained of as a very great Grievance so that after this Labarell declared in the Council at Vienna That Clement the Fifth who was made Pope in the year 1305. forbad the receiving thereof and that laying the same aside the Twentieth part of the Sacerdotal Revenues should instead thereof be annually paid to the Bishop of Rome but this not taking effect the Pope so retained the said Annates to his Exchequer as that to this day it remains one of the considerablest parts of his Revenue Polyd. Virg. ubi supr 3. The Canonist Gammarus in favour of the Apostolick See asserts that Annates are very justly required by the Pope pro Conservando decenti statu and compares it to Aaron the High Priest's receiving the Tithe of Tithes the Tithe of such Tithes as were given to the other Priests adding withal that Annates are of very great Antiquity Gammar in Extr. Julii 2. de Simon Papae Elect. nu 253. in Repet Jur. Can. To. 6. par 2. fo 54. as appears by the Concessions of Jo. Andâ—aeas and of Hostiensis Jo. Andr. Hostiens in c. inter caetera de Offic. Ordin the which Tho. Aquinas doth not deny saying That it is but consonant to Natural reason that he qui omnium curam habet de Communi alatur and thence concludes That the Pope may require Tithes and Annates from the Clergy Aquin. 2. 2. quaest 87. artic 4. As to the Original of these Annates Platina and Blondus report them to have been first exacted by Pope Boniface the Ninth Others assert it to be in the time of Pope John the Two and twentieth which was above Seventy years before that Boniface But Johannes Eccius in his Enchiridion against the Lutherans says that both Blondus Platina and Gravaminus whom he there nick-names Ecclesiae Consarcinatores were all in an Error in ascribing the original of Annates to this Boniface or that John for says he quoting Johannes Andâ—aeas for his Author in the Council at Vienna An. 1311. whereof P. Clement the Fifth was President which was long before Boniface or John the 22d there was a Debate concerning Annates Jo. Andraeas ubi supr Gam ubi supr But their supposing Clement the Fifth to have been after John the 22d was the ground or reason of their Error 4. Aumone or Frank Almoign is the same which we call Libera Eleemosyna or Free Alms whence that Tenure is known by the Name Tenure in Aumone which is a Tenure by Divine Service It is a certain Tenure or Title of Lands at the Common Law as when Lands or Tenements are freely given in the way of Alms to some Church or Religious House upon this condition or consideration That Divine Service shall be offered and Prayers made pro bono animae Donantis or the like So that this Aumone or Frank Almoign is no other than a Tenure or Title of Lands or Tenements bestowed upon God by giving them to such as devote themselves to the Service of God for pure and perpetual Alms whence the Feoffors or Donors cannot demand any Terrestrial Service from the Feoffors so long as the said Lands and Tenements remain in their hands With this agrees the Grand Customary of Normandy cap. 23. and whereof Bracton writes at large But Britton makes another kind of this Land which is given in Alms but not in Free Alms because the Tenants in this are obliged to certain Services to the Feoffor 5. In the Case of Dennis against Drake it was said That if a man be Instituted to a Benefice he ought to pay the First-Fruits before Induction by the Statute but by the Common Law it was otherwise for he is not to have the Temporalties until Induction and therefore he could not pay the First-Fruits But another person cannot be Presented to this Benefice during the continuance of the first Institution And an Institution to a second Benefice is a present Avoidance of the first 6. Decimae id est Tenths of Spiritualties were perpetual and paid to the Pope till Pope Vrban gave them to R. 2. to aid him against Charles King of France and others who supported Clement the Seventh against him And 5 H. 3. by the Pope's Bulls all Tenths were paid to H 3. for years These were given to the King 26 H. 8. cap. 3. Vid. Lambert de prist Angl. c. fo 128. cap. 10. St. ibid. inter Leges Inae fo 78. cap. 4. CHAP. XXXI Of Altarage 1. The genuine signification of the word Altarage what is comprehended under that word Two Cases at the Common Law touching Altarage 2. A severe Canon made by Cardinal Otho against the gross abuse of Altarage an Artifice to defeat that Canon And whether Altarages may be let to Farm 3. Whether Tithe-Wool will pass by the word Altaragium 4. The word Altaragium shall be expounded according to the use and eugome of the place 5. Whether Tithe-wood may pass to the Vicar by the word Altaragium 1. ALtarage or Altaragium a word though now somewhat obsolete yet in signification of Ecclesiastical cognizance and in the intent thereof practicable at this day Mr. Blount in his Nomo-Lexicon takes notice thereof as a word which comprehends not only the Offerings made upon the Altar but also all the profit which accrues to the Priest by reason of the Altar Obventio Altaris And for further proof and illustration of this matter there cites a President out of the Orders and Decrees of the Exchequer in the Reign of Queen Elizabeth to this effect That upon hearing of the Matter between R. T. Vicar of West-Haddon and E. Andrewes it was ordered That the said Vicar should have by reason of the words Altaragium cum manso Competenti contained in the
if not of the highest Antiquity Some will have it in Ancient times to have been the Temple of Diana but the Ingenious Commentator on Antoninus's Itinerary though he will admit that Diana was indeed worshipped here in the Roman times and had Temples here also yet he will not agree it other than a Tradition to assert That St. Pauls Church was formerly a Temple of Diana and is free to conjecture that Mr. Selden did but sport his Wit and was not in good earnest when he imagined that London might be called first Lhan Dien that is the Temple of Diana The same may be said concerning the Temple of Apollo on the Ruines of which the report is St. Peters in Westminster was founded The Antiquary will also have it That at York was Bellona's Temple and Minerva's Temple at Bath and that from her the Town was called Caer Palladour that is the City of Palladian waters They that will have the Church of Rome to be Caput Ecclesiarum do ascribe it to Pope Boniface that he obtain'd it of the Emperour Focas because the Church of Constantinople writ her self Primam omnium Ecclesiarum This was so Decreed in the year 608. by a Council of 62 Bishops sub Anathemata At a Synod held at Westminster under Pope Innocent 2. in the Third year of King Stephen An. D. 1138. it was Decreed That no Church should be built without Leave first obtained from the Bishop of the Diocess Apostolica authoritate prohibemus ne quis absque Licentia Episcopi sui Ecclesiam vel Oratorium constituat By the Fifth Law of Ina King of the West Saxons the Church is made a Sanctuary Si quis sit mortis Reus ad Ecclesiam fugiat vitam habeat emendet sicut rectum consulet At a Synod held at Westminster in the Reign of H. 2. An. 1175. it was ordained then no Judgments touching Blood or Corporal punishment should be given in a Church or Churchyard by the Sixth Canon made at that Synod Seculares Causas in quibus de sanguinis effusione vel de poena Corporali agitur in Ecclesiis vel in Coemiteriis agitari sub interminatione anathematis prohibemus By the Fifth Canon made at a Synod held in London during the Reign of Edmond Father of Edwin and Edgar who succeeded Aethelstan at which Synod were present Odo and Wulstan Archbishops provision was for the Repairing of Churches viz. Vt omnis Episcopus reficiat Dei domos in suo proprio Regem ammoneat ut omnes Ecclesiae Dei sint bene paratae The like you have in the 92 Law of King Kanute Ad refectionem Ecclesiae debet omnis populus secundum Legem subvenire At a General Council held at Rhemes under Pope Calixtus An. 1119. during the Reign of H. 1. it was Ordained That whoever invaded the possessions of the Church should be Anathematiz'd Vniversas Ecclesiarum possessiones quae Liberalitate Regum vel Largitione Principum concessae sunt inconcussas in perpetuum inviolatas esse decernimus Quod si quis eas abstulerit aut invaserit Anathemate perpetuo feriatur And by the Sixth Law of Ina aforesaid if any man fought in the Church he should forfeit Six pounds si quis in Ecclesia pugnet 120 solid emendet And although it be now looked upon as Exaction for a Parson to demand his Funeral dues of Burial where the deceased is carried out of his Parish to be buried in another so it was long since Ordained by the Laws of King Kanute leg 16. Si Corpus aliquod à sua Parochia deferatur in aliam pecunia tamen Sepulturae ejus jure in eam Ecclesiam pertinebit Among other Officers relating to the Church those of Churchwardens Questmen and Sidemen are not to be omitted for although they may be some of the Lower Form yet they are of necessary use and such as without whose care many disorders in the Church may pass unpunished as well as the Concerns thereof much prejudiced for which end and reason the Law will have them to be a Corporation qualifies them to Sue subjects them to Suits and understands them in the nature of Ecclesiastical Trustees as Guardians of the Moveable Possessions of the Church Therefore the Canons have determined as to the qualification of the persons Eligible the manner of their Choice by whom and the time when their Oath Office Duration and Account when and before whom it shall be made and how they shall be finally discharged By reason of the great desolation and ruine of many Churches and Parishes in the late Unnatural War in this Kingdom and otherwise it hath been judged necessary to pass an Act of Parliament for the Uniting of certain Churches in Cities and Towns Corporate Notwithstanding which the Parishes to remain distinct as to all Rates Taxes Parochial Rights Charges and Duties and all other Priviledges Liberties and Respects whatsoever wherein it is also Enacted That the Patrons of such Churches and Chappels so united shall Present by Turns only to that Church which shall remain and be Presentative from time to time c. Provided That Parishes having 100 l. maintenance per An. may not be Vnited Also the Incumbents of such united Parishes must be Graduates in some Vniversity And the Owners of Impropriations may bestow and annex Maintenance to the Churches where they lie and settle it in Trust for the benefit of the said Parsonage or Vicarage without any License of Mortmain It is there also further Enacted That if the settled Maintenance of such Parsonage Vicarage Churches and Chappels so united c. shall not amount to the full sum of 100 l. per An. clear and above all charges and reprizes that then it shall be lawful for the Parson Vicar and Incumbent of the same and his Successors to take receive and purchase to him and his Successors Lands Tenements Rents Tithes and other Hereditaments without any License of Mortmain any Law or Statute to the contrary notwithstanding The Churches and Parishes in London which by that Act since the Dreadful Fire are United are these viz. The Parishes of Alhallowes Breadstreet and St. John Evangelist are united into one Parish and the Church of the former to be the Parish-Church of the Parishes so united The Parishes of St. Albans Woodstreet and St. Olaves Silverstreet are united into one Parish and the Church of the former to be the Parish Church of the said Parishes so united The Parishes of St. Austins and St. Faiths are united into one Parish and the Church of the former to be the Parish Church of the said Parishes so united The like order to be observed in all the rest of the Parish Churches that are by that Act united Touching Dilapidations of Ecclesiastical Edifices and Possessions it may well be presumed That the most of that kind that ever was in the Christian World was in the time of Dioclesian's
answers the Election of a Bishop 2. Admission to which Confirmation answers 3. Institution which is as the Consecration and Induction as the Restitution of the Temporalties The Spiritual Marriage between the Church and the Bishop initurper Electionem Contrabitur per Confirmationem Consummatur per Consecrationem and the Restitution of the Temporalties is as the bringing home of the Wise CHAP. VII Of Deans and Chapters 1. What a Dean is why so called what Dean and Chapter signifies and what Deans Rural arc 2. The Division of Deans according to the Civil and Canon Laws a Question in Law touching the Deanary of St. Martins 3. Two ways of Creating Deans and in what other senses the word or style of Dean is applicable 4. Four sorts of Deans according to the Law of the Land 5. The Patronage of Deanaries is in the Crown 6. The Dean and Chapter of a Cathedral is a Corporation Spiritual 7. A Deanary consists of two parts The difference between a Dean Prebend and Parson and that Deanaries and Archdeacomies are Ecclesiastical Dignities 8. Chapter what the several Acceptations of that word 9. The difference between Capitulum and Conventus in the Canon Law 10. The description of a Chapter as to their Constitution and Government 11. Whether one Bishop may have two Chapters 12. Whether the Lease of a Parsonage in one Diocess annexed to a Prebend in another made by that Prebend be good without the Confirmation of that Bishop in whose Diocess the Parsonage is 1. DEAN 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 decem is an Ecclesiastical Magistrate so called because anciently he presided or had power over Ten Canons or Prebends at the least Sed dicuntur Decani Rurales eo quod Decem Clericis five Parochiis praesint Secund. Papiam Lindw de Constit verb. Decan Rurales gloss Dean Rural because he usually had charge over Ten Country Parishes Anciently also called Archipresbyter because other Presbyters were under his charge Here in England he is commonly called a Dean who is next under the Bishop and Chief of the Chapter ordinarily in a Cathedral Church the rest of that Ecclesiastical Society or Corporation being called Capitulum the Chapter Dean and Chapter is a Body Corporate Spiritual consisting of many able persons in Law viz. the Dean who is Chief and his Prebends and they together make the Corporation And as this Corporation may joyntly purchase Lands and Tenements to the use of their Church and Successors so likewise every of them severally may purchase to the use of himself and his Heirs After the death of a Prebend the Dean and Chapter shall have the Profits And after the death of a Dean of a Free Chappel belonging to the King the King shall have the Profits of the Deanary for it is at the pleasure whether he will Collate a new Dean to it It is likewise held that a Deanary is a Spiritual Promotion and not a Temporal by all the Judges And if the Nomination and Patronage of a Deanary be at the appointment of the King his Heirs and Successors and he appoint a Dean yet it is a Spiritual Promotion The King makes the Corporations of Dean and Chapter The Chapter of the Bishop consists of a Dean as the Chief and of the Prebendaries or the like which are commonly called the Chapter As to the Bishop and Chapter which are but one Body their possessions are divided so as the Bishop hath a part for himself and the Chapter the residue And their Possessions also for the most part are divided the Dean having one part alone in right of his Deanary and each particular Prebendary a certain part in right of their Prebends the residue the Dean and Chapter have alike and each of them is to this purpose incorporate by himself In the Cathedral Churches of St. David and of Landaff there never hath been any Dean but the Bishop in either is Head of the Chapter and in the Bishops absence in the Chapter at St. Davids and at Landaff the Archdeacon There are also some Deans in England without any Jurisdiction only for Honour so styled as the Dean of the Chappel Royal and Dean of the Chappel of St. George at Windsor And some Deans there are without any Chapter yet enjoying certain Jurisdictions as the Dean of Croydon the Dean of Battel the Dean of Bockin c. In the Case of the Dean and Chapter of Norwich it is said That in Christian Policy it was thought necessary for that the Church could not be without Sects and Heresies that every Bishop should be assisted with a Council viz. a Dean and Chapter 1 To Consult with them in deciding of difficult Controversies of Religion to which purpose every Bishop habet Cathedram 2 To Consent to every Grant the Bishop shall make to bind his Successors for the Law did not judge it reasonable to repose such confidence in him alone At first all the Possessions were to the Bishop afterwards a certain portion was assigned to the Chapter therefore the Chapter was before they had any Possessions and of Common right the Bishop is Patron of all the Prebends because their Possessions were derived from him So that so long as the Bishoprick continues the Dean and Chapter being his Council remains This word Dean is diversly used by Lindwood who speaking of Dean-Rurals describes them to be certain persons that have certain Jurisdiction Ecclesiastical over other Ministers and Parishes near adjoyning assigned unto them by the Bishop and Archdeacon being placed and displaced by them Such are the Dean of Croydon in Surrey the Dean of Battel in Kent the Dean of Burian in Cornwal c. These Deans Rural are Decani Temporales Constituted to some Ministerial Function under the Bishop or Archbishop They are certain Ecclesiastical persons having certain Offices commonly belonging to the Bishop and Archdeacon and therefore to either of them belongs the receiving or removing of them and their Office is temporal not perpetual as is the Office of the Deans of Cathedral and Collegiate Churches and other Churches quibus perpetuo intitulantur 2. The Civil and Canon Laws do chiefly take notice but of three sorts of Deans the one he who is impower'd and set over Ten Souldiers Another he who is called Dean Rural as aforesaid The third is a Dean of a Cathedral or Collegiate Church as abovesaid There is also the Deanary of St. Martin le Grand Lond. concerning which Lindwood puts the question Whether it be such an Ecclesiastical Benefice as in effect may incur such penalties as may possibly happen to other persons Beneficed And after deep enquiries into the Laws Presidents and Antiquities Forreign and Domestick with very delectable variety of great Learning hinc inde argumentatively and pro con impartially at last doth conclude it in the Affirmative Lindwood Constit tit de Cohab. Cleric Mul. c. ut Clericalis
Church for that he may then be twice charged for he may be charged for that in the Parish where the Land doth lie in which case Prohibition hath been granted 27. If a Citizen of London erect a House in the Parish of A. with intent of dwelling there in time of Sickness at London and hath not any Land in the Parish and after is Assessed 20 s. for Reparation of the Church where others who have 100 acres of Land in the same Parish pay but 6 d. yet no Prohibition shall be granted on a Suit for the said 20 s. in the Ecclesiastical Court for that they have Jurisdiction of the thing and for which reason they may order it according to their Law 28. If there be a Chappel of Ease within a Parish and any persons of the Parish have used time out of mind c. alone and by themselves without others of the Parishioners to repair that Chappel of Ease and there to hear Divine Service and to Marry and all other things only they Bury at the Mother-Church yet they shall not be discharged of Reparations of the Mother-Church but ought to contribute to the same for the Chappel was Ordained only for their ease But if Inhabitants within a Chappelry prescribe to be discharged time out of mind c. of the Reparation of the Mother-Church and are sued in the Ecclesiastical Court for the same a Prohibition lies on that Surmize 29. If a man be rated for the Ornaments of the Church according to the Land which he hath in the Parish a Prohibition lies for the Rate for that ought to be according to the personal Estate Also if a man who is not any Inhabitant within the Parish but hath Land there be rated for the Ornaments of the Church according to the Land a Prohibition lies for the Inhabitants ought to be rated for that and it was said by Yelverton That it had been often so Resolved 30. If all the Parishioners are not rated for the Reparation of the Church but some are and some are not and those that are rated be sued in the Ecclesiastical Court a Prohibition will lie But if the major part of the Parishioners of a Parish where there are four Bells doth agree that there shall be a fifth Bell made and it be made accordingly and a Rate made for payment of the same it shall bind the lesser part of the Parishioners although they did not agree to it for otherwise any obstinate persons may hinder any thing intended to be done for the Ornament of the Church and therefore in this case a Prohibition was denied 31. The Ecclesiastical Court may not try the Bounds of a Parish if therefore there be a Suit there depending for that a Prohibition will lie as where the difference is between two Vicars concerning a Chappel of Ease As when the Vicar of a Parish Libels against another to avoid his Institution to the Church of D. which he supposes to be a Chappel of Ease belonging to his Vicarage if the Defendant suggest that D. is a Parish of it self and not a Chappel of Ease a Prohibition lies for they may not try the Bounds of a Parish 32. If a Vicar sue the Parson Impropriate for dammages for cutting down the Trees growing in the Church-yard a Prohibition lies for that if the Trees belong to him he may have Trespass at Common Law And in this case a Prohibition was granted 33. One being sued in the Ecclesiastical Court for money for reparation of the Church prayed a Prohibition and had it and after it was moved for a Consultation The case was this viz. The party that was sued prescrib'd that there is a Chappel within the same Village in which they have had at all times Sacramenta Sacramentalia and that he nor the Inhabitants of that Village which resort to the said Chappel have ever used to repair the said Church the first point in this case was whether the Prescription were good and the Chief Justice said that it is contrary to Common right that they who have a Chappel of Ease in a Village should be discharged of repairing the Mother-Church and it may be that the Church being built with Stone it may not need any Reparation within the memory of man and yet that doth not discharge them without some special cause of discharge shewed The second point was the taking away of an Objection as they said viz. That a Prescription which is incident to Ecclesiastical things shall be tried in the Ecclesiastical Court and so that Objection removed and commonly the Church-wardens are chosen in the Ecclesiastical Court yet the Lord of a Mannor may prescribe for that and then it shall not be tried in the Ecclesiastical Court although it be a Prescription of what appertains to a Spiritual thing 34. Note that in the case of Churchwardens the Chief Justice said That for the repairing the Fabrick of the Church the charge is real charges the Land and not the person but for the Ornaments of the Church it is personal and there if a man be not an Inhabitant within the Parish he is not chargeable in respect of his Land for such Tax doth charge the Goods only And to this Chamberlain Justice agreed and none denied it but where there is a Farmor of the Land there the Farmor alone shall not be charged for it is not reason that a poor Husbandman who paies Rent for his Land and perhaps to the utmost value should build Churches but it may be unknown to the Parishioner and the Churchwardens who hath the Fee in reversion and therefore they may impose the whole Tax on the Farmor and he by way of Answer may alledge in the Ecclesiastical Court that he is but the Farmor and thereupon the Tax shall be divided between him and his Landlord according to the Rate which the Land is worth more than the Rent and on the Landlord according to the quantity of the Rent quod quaere for in Jeofferie's Case 5 Coke it is Resolved That the Farmor alone is chargeable and that a Consultation was granted but not for that reason but for that the Reversioner had pleaded an insufficient plea in the Ecclesiastical Court viz. That he was not an Inhabitant within the Parish which is not a good plea as also for the great delay which he had used having made or brought two Appeals and after a Prohibition and so had put the Parish to 60 l. charge for the recovery of 6 l. and for that reason chiefly and not on the matter in Law was the Consultation granted 33. In Frances and Ley's Case it was Resolved by the Justices That Coats of Arms placed in Windows or a Monument placed in the Church or Church-yard cannot be beaten down and defaced by the Parson Ordinary Churchwardens or any other And if they be the Heir by descent interessed in the Coat
Church so erected is by the Consecration thereof actually delivered up and made over as it were to God himself it thenceforth ceases to be of any mans property or of any Human Dominion for Quod Divini Juris est id nullius est in bonis § nullius Inst de Rer. Divis And by what is Recorded in the Life of Bishop Vlrick it should seem as if the Right of Presentation originally were in the Diocesan for the Author there saith That if any Erected a Church the Bishop consented Si legitimam Ecclesiae dotem in manum ejus Celsitudinis dare non differret c. And after the Endowment and Consecration thereof the care of the Altar was committed by him to the Priest and the Advowson firmly conveyed to the lawful Heir by the putting on a Robe Author vitae Udalrici c. 7. p. 52. Edit August Vindel. 1595. But the Bishops understanding this as a matter more of Care than of Power as appears by these moderate expressions of Nominare Praesentare or Commendare they were willing the Lay-Patron for his better encouragement to such Pious works should share with them in this priviledge which Panormitan calls Jus â—onorificum yet so as that this transference of the Bishops unto Lay-Patrons should still remain under such a Limitation as that it should be necessary for the Patron to have recourse to the Bishop for the qualifying his Clerk for the Rectory by Ordination And the Bishop's prudent compliance with Lay-Patrons in this matter was not in those days without good reason if we consider what a paucity of publick Churches there then were insomuch that for want or instead thereof they frequently then said Prayers under a Cross in the open Field as is reported of our own Ancestors in the Peregrination of Wilibald Sic mos est Saxonicae gentis c. non Ecclesiam sed Sanctae Crucis Signum c. diurnae Orationis sedulitatem solent habere Hodaeperic Hierosolym Wilibald Extat ad Canisium Tom. 4. Antiq. Lect. par 2. pag. 486. Edit Ingolst 1603. Yea and where perhaps some Churches were many of them were no better than those mentioned by Asser Bishop of Shirburne in King Alured's daies which were of so mean a structure that frequently the wind entering per parietum rimulas did blow out the Candles set before the Reliques which gave occasion to that ingenious Prince to teach us by his dexterity the mystery of making Lanthorns Ex Lignis Bovinis Cornibus 4. In the Infancy of the Christian Faith in this Island under the Saxons several particular Lords of Grand Seignories Regis ad Exemplum erected particular Churches and having Endowed them with Lands reserved to themselves and their Successors for ever a right and power to confer them on such as were meetly qualified for the same And this they did in imitation of those Kings who then Reigning here erected Cathedrals Abbies Priories Churches c. 5. An Advowson being a right of Presentation as aforesaid reserved by a Founder to himself his Heirs and Successors is applicable to other Ecclesiastical Foundations as well as those of Churches as appears by the several Quare Impedits brought on several occasions so that albeit it hath been said that by the Grant of a Church the Advowson passed and when he gave the one he gave the other yet is the word Advowson not improperly applicable to any thing wherein a Quare Impedit will lie And he in whose Right such Presentation is rested is by the Provincial Constitutions of this Realm termed Advocatus Ecclesiae because as the Constitution hath it tueri defenders Ecclesiam ejus jura tenetur ad instar Advocati qui in Judicio Causam alicujus defendit Lindw Provin Const de Foro Comp. cap. Circumspecte ver Advocatus Which every Patron is obliged to do whence Patronus and Advocatus Ecclesiae are in effect Synonymous yet in Lindwood we have the Question put whether there be any difference inter Patronum Advocatum Ecclesiae Lindw Const Prov. de homicidio cap. Sacri Gloss ibid. Where though the prevailing opinion be for the Negative yet you will also there find very Orthodox Authority for the contrary and that Advocatus intelligitur non pro Patrono sed pro Defensore Ecclesiae Gloss ibid. as appears there by Lindwood that Famous Canonist totius Orbis Britannici who being Doctor of Laws Chaplain and Official to the Archbishop of Canterbury in the time of H. 5. was by reason of his great Experience and Abilities in National Laws as well as Provincial Constitutions sent as his Embassador to the Crowns of Spain and Portugal and at his Return about An. 1422. compiled what now is extant to his Immortal Memory and Dedicating the same to the said Archbishop it was after about An. 3505 being first revised by Wolfgangus Hopylius printed at Paris at the cost and charges of William Bretton Merchant of London Mention hereof is here made in regard of the plentiful use here made of this Eminent Author in this Ecclesiastical Abridgment and that rather in the midst of this Subject touching Advowsons as presuming that for the reason aforesaid a Quare Impedit will not lie in the case of this digression 6. The Right of Patronage is it seems by the Common Law a real Right fixed or vested in the Patron or Founder in the Church wherein he hath as absolute a property and Ownership as any man hath to his Lands and Tenements or any Freehold whatever And that the Advowson or Patrons Right to Present is a Temporal and not a Spiritual Inheritance For at the first Creation of a Mannor if Lands were given to erect a Church thereon the Advowson thereof became appendant to that Mannor and reputed as parcel thereof which being Temporal the other became so also as an Accessary to the Principal for which reason such an Advowson passeth by the Grant of the Mannor cum pertinentiis Yea it hath been adjudged That by the Grant of a Mannor without making any mention of the Advowson the Advowson also passed because it was parcel of and appendant to the Mannor And it hath been ever held That by the Common Law an Advowson is a Temporal Inheritance for that it lieth in Tenure and may be holden either of the King or of a Common person and hath been held of the King in Capite or in Knights Service And were a Quare Impedit hath been brought the Plaintiff hath counted that the Defendant held the Advowson of him by Homage and Fealty And it hath been agreed that an Advowson doth lie in Tenure and that the Lord may distrain in the Glebe-Lands for Rents and Services the Patron 's Cattel if any be there found upon the Land but not the Cattel of a Stranger 7. Other Reasons it seems there are at the Common Law which prove That an Advowson is a Temporal Inheritance for that a Writ of Right of
may have a Writ of Right of Advowson but this Writ lieth not for him unless he claim to have the Advowson to him and his Heirs in Fee-simple which Advowson is valuable though the Presentment be not 18. The Queen seized of an Advowson being void the Ancestor of P. Presented and so gained it by Usurpation and then the Church being void he Presented again his Clerk dies and then the Queen grants the Advowson to Y. the Plaintiff who brings a Quare Impedit in the Queens Name supposing that this Usurpation did not put the Queen out of Possession It was argued That the Grant could not pass without special words because it is in the nature of a Chose in Action And Dyer Mead and Windham held That this Usurpation did gain possession out of the Queen and that she should be put to her Writ of Right of Advowson but the Opinion of Anderson Cheif Justice was clearly That the Queen was not out of Possession for he said That it was a Rule in our Books that of a thing which is of Inheritance the act of a Common person will not put the Queen out of possession But if she had only a Chattel as the next Advowson then perhaps it is otherwise But Mead and Windham very earnestly held the contrary relying on the Book of 18 E. 3. where Shard said That if the King had an Advowson in his own Right and a Stranger who had no Right happen to Present it puts the King out of Possession And the King shall be put to his Writ of Right as others shall The Defendant alledged Two Presentations in his Ancestor after the Title of the King and demanded Judgment if the King should have a Writ of Possession and the Plea was admitted to be good But after Pasch 25 Eliz. Judgment was given for the Queen for that she might very well maintain a Quare Impedit and the two Presentments did not put her out of possession 19. In a Quare Impedit by G. against the Bishop of L. and D. Incumbent The Case was That a Mannor with the Advowson Appendant was in the hands of the King and the Church became void and the King grants the Mannor with the Advowson If the Grantee shall have the Presentation or the King was the question All the Justices held clearly That the Avoidance would not pass because it was a Chattel vested And Periam said that in case of a Common person without question an Advowson appendant would not pass by such Grant for if the Father die it shall go to his Executor but if it be an Advowson in Gross in case of a Common person there is some doubt But in the Principal Case all the Judges held ut supra and said That so it was in 9 E. 3. 26. Quare Impedit 31. and in Dyer in the Case of the Church of Westminster But F. N. B. is contrary 33. N. 20. Of Advowsons there are three Original Writs whereof one is a Writ of Right the other two of Possession viz. Darrein Presentment and Quare Impedit And where an Advowson descendeth unto Parceners though one Present twice and usurpeth upon his Co-heir yet he that was negligent shall not be clearly barr'd but another time shall have his turn to Present when it falleth And by the Statute of 3 Jac. 5. every Recusant Convict is utterly disabled to Present to any Ecclesiastical Living or to Collate or Nominate to any Donative whatsoever the Advowson of every such Recusant being left to the disposition of the Universities of Oxford and Cambridge Also by the Statute of 13 E. 1. 5. it is directed what Action shall be maintained by him in the Reversion who is disturbed to Present after the Expiration of a particular Estate where there is also provided a Remedy for him in the Reversion or Remainder or others that have right where there is an Usurpation of an Advowson during any particular Estate And that Judgments given in the Kings Courts touching Advowsons shall not be avoided by Surmizes but by lawful means Likewise it is Statute-Law to hold That Advowsons shall not pass from the King but by Special words for when the King doth give or grant Land or a Mannor with the Appurtenances unless he make express mention in his Deed of Advowsons of Churches when they fall belonging to such Mannor or Land they are reserved to him notwithstanding the word Appurtenances albeit among Common persons it hath been otherwise observed nor is it lawful to purchase an Advowson during the dependancy of a Suit at Law concerning the same 21. If a Feme Covert be seized of an Advowson and the Church becomes void and the Wife dieth the Husband shall Present Where Parson and Vicar be Endowed in one Church and the Vicarage becomes void the question is To whom the Advowson of the Vicarge doth belong and who in that case shall be said to be the Patron of the Vicarage Whether the Patron of the Parsonage or the Parson It seems the Books at Common Law the Judges and the Court were divided in Opinion touching this point some of the Judges were of Opinion That the Advowson of the Vicarage appertains to the Parson Others that it belongs to the Patron Such as inclined that it is in the Patron gave for reason That the Ordinary cannot make a Vicar without the assent of the Patron 5 E. 2. Quare Impedit 165. puts the Case That although the Vicarage be Endowed with the assent of the Patron and Ordinary yet the Advowson of the Vicarage doth remain in the Parson because the same is parcel of the Advowson of the Parsonage And 16. E. 3. Grants 56. it was a question Whether by the Grant of the Advowson of the Church the Advowson of the Vicarage did pass and there it was said by Stone That it doth pass as Incident to the Parsonage And in regard the Vicar is as the Parsons Substitute and his Endowment originally only as a Maintenance for him in officiating the Cure for the case of the Parson whose Concern it is to see that he be a fit and able person sufficient for the Cure it should thence seem rational that the Parson should be his Patron to Present such an one to the Vicarage as shall be sufficient for the Cure for which reasons the Patronage of the Vicarage should seem rather to belong unto the Parson than to the First Patron of the Parsonage Appropriate 22. An Advowson cannot it seems at the Common Law be called a Demesne for that it is not such a thing as a man hath a Manual occupation or possession of as he hath of Lands Tenements and Rents whereof he may say in his Pleading That he was seized thereof in his Demesn as of Fee which he cannot say that hath only the Advowson of a Church because it lies not as the other in Manual occupation And therefore in the case
in Pembrokeshire the Chaunter is next to the Bishop there being no Dean Chauntry Cantaria Aedes sacra ideo instituta dotata praediis ut Missa ibidem cantaretur pro anima Fundatoris Propinquorum ejus These were commonly Little Chappels or particular Altars in some Cathedral or Parochial Church endowed with Lands or other Revenues for the maintenance of one or more Priests to officiate as aforesaid whereof mention is made in certain Statutes of this Realm though not to such Superstitious uses as aforesaid A man might make a Chauntry by License of the King without the Ordinary for the Ordinary had nothing to do there with 9 H. 6. 16. It might be Founded in a Cathedral Church also in any other Church 9 H. 6. 17. Roll. Abr. ver Chauntry lit A. Q. 387. Of these Chauntries there were it seems 47 belonging to St. Pauls Church in London The Superstitious main use and intâ—nt of these Chauntries originally was for Prayers for Souls departed under a supposition of Purgatory and of being released thence by Masses Satisfactory and as in Adam's Case fo 112. mentioned by Sir Hen. Hobart Chief Justice in the Case of Pitts against James That Prayer for such Souls was the general matter of all Obits Anniversaries and the like which were but several Forms of Prayers for Souls And as in the said Case of Pitts if a man give Land to a Parish-Priest to pray or say Mass for his Soul this is within the Law that is within the Statutes of 37 H. 8. c. 4. and 1 Ed. 6. c. 14. as it is held 16 Eliz. Dyer 337. for to this purpose he is a Souls-Priest not a Parochial By which Statutes all Chauntries and all their Lands and Hereditaments are given to the Crown and all Lands Rents and Profits given to the finding of a Priest for the Superstitious ends aforesaid to continue for ever are vested in the actual possession of the King and of his Heirs and Successors for ever who shall also have by the said Statute of 1 Ed. 6. all the Common Goods of such Chauntries and the Debts thereof shall be paid to the Kings Treasurer and shall also have all Lands and all such Sums of money and part of the issues of Lands given for the maintenance or for the finding of any Anniversaries Obits Lights Lamps c. Only the said Act doth not extend to such Lands as whereof the Governours of such Colledges as were mentioned therein or Chauntries were seized to their own uses nor to any Lands or Rents given by the King for the term of his life only nor to any Copyhold-Lands and all Rents and yearly profits due to any Patron Donor and Founder of any of the said Chauntries c. and the Right of others except the Governours of Houses are by the said Act saved to them All Chanteries Colledges Free-Chappels and Hospitals were by Parliament given to King H. 8. for the carrying on the War against France and Scotland Towards the Charges of which Wars the King obtained a Grant in Parliament of the same with the Lands thereto belonging to be united to the Crown But dying before he took the benefit thereof he left that to such of his Ministers who had the managing of Affairs in his Son's Minority Heyl. Hist Eccles pag. 12. In the Reign of King Ed. 6. one of the great Affairs was the retrieving of a Statute made in the 27th year of King H. 8. by which all Chanteries Colledges Free-Chappels and Hospitals were permitted to the disposing of the King for term of his life but the King dying before he had taken many of them into his possession it was set on foot again in the time of King Ed. 6. and by Parliament during his Reign it was Enacted That all such Colledges Free-Chappels and Chanteries as were in being within Five years of the present Session which were not in the Actual possession of the said late King c. other than such as by the Kings Commissions should be altered transported and changed together with all Mannors Lands Tenements Rents Tithes Pensions Portions and other Hereditaments to the same belonging after the Feast of Easter then next coming should be adjudged and deemed and also be in the Actual and Real possession and Seisin of the King his Heirs and Successors for ever And although the Hospitals being at that time 110 were not included in this Grant as they had been in that to the King deceased c. yet there were 90 Colledges within the compass of that Grant those in the Universities not being reckoned in that Number and no sewer than 2374 Free-Chappels and Chanteries the Lands whereof were thus conferr'd upon the King by Name but not intended to be kept together for his benefit only In which respect it was very strongly insisted on by Archbishop Cranmer That the dissolving of these Colledges Free-Chappels and Chanteries should be deferred until the King should be of Age to the intent that they might serve the better to furnish and maintain his Royal Estate than that so great a Treasure should be consumed in his Non-age as it after was These Chanteries consisted of Salaries allowed to one or more Priests to say daily Mass for the Souls of their deceased Founders and their Friâ—rds which not subsisting on themselves were generally incorporated and united to some Parochial Collegiate or Cathedral Church No fewer than 47 in Number being as aforesaid found and Founded in St. Pauls Free Chappels though Ordained for the same intent were independent of themselves of stronger Constitution and richer Endowment than the Chanteries severally were All which Foundations having in them an admixture of Supersâ—â—tion as presupposing Purgatory and Prayers to be made for the deliverance of the Soul from thence were therefore now suppressed upon that account Heyl. Hist Eccles in temp Ed. 6. pag. 50 51. 7. Before King John's time the King and other Founders and Patrons of Priories and Abbies were wont to present Priors and Abbots But by King John there was a Free Election granted unto Priors 8. In Adams and Lambert's Case touching Chanteries these differences were taken 1 If one give 20 l. per annum for the Finding of a Priest and limit to the Priest 10 l. per annum all is given to the King for the residue shall be intended for the finding of Necessaries otherwise it is if a Condition be annexed to the Gift to give 10 l. per annum to a Priest there the King shall have but 10 l. 2 Land of 20 l. per annum is given to find a Priest with 10 l. per ann thereof and that the other 10 l. shall be to the Poor the King shall have but 10 l. But if it be for finding a Priest and maintenance of Poor men without limiting how much the Priest shall have the King shall have the Land for otherwise he shall have nothing 3. If Land of 20 l. is given
for finding Salary for a Priest with 10 l. of it and also a good use is limited there the King shall have but 10 l. although the other Necessaries are to be found for the Priest because a good use in certain shall be preferred before a Superstitious incertain use but if nothing in certain be limited to the Priest the King shall have the Land 4 If Land be given to find a Priest the King shall have it but if a Priest have but a Stipend the King shall have but the Stipend 5. When a certain Sum is limited to a Priest and other good uses are also limited which depend upon the Superstitious use all is given to the King 6. If all the uses be Superstitious of what certainty soever they are the Land is given to the King otherwise it is if there be any good use 9. The Case was where A. devised to the Dean and Chapter of Y. 400 l. to the intent to find a Chantery in their Church perpetually and an Obit for the Soul of D. and that the Chantery-Priest should have 40 Marks yearly King H. 4. gave License to the Dean and Chapter to purchase divers Lands in F. ad onera opera pietatis In the Will of A. they purchased Houses in F. and made Ordinances how the Priests should be maintained and obliged themselves omnia bona sua ad performandum and they employed 8 l. for the maintenance of the Priest and other Sums for the Obit Resolved That this was not a Chauntery either in truth or in reputation within the intent of the Statute of 1 Ed. 6. because here are not any Lands given by A. and his Intent cannot make a Chauntery nor appoint any Lands thereunto but obliged their Goods for the payment of an Annual Sum to a Priest and when no Lands are given nor employed to that purpose it is not reason they should be given to the King A Freeman of London seized of Messuages of the value of 9 l. 4 s. per ann out of which a Quit-rent of 42 s. per ann was paid 6 H. 7. devised the same to the Parson and Churchwardens of the Parish of S. and their Successors That the Churchwardens should receive the Profits thereof and therefore should find a Chaplain for ever to pray for the Soul of him and his Ancestors and to find an Anniversary expending yearly on it 13 s. 4 d. and the Residue of the profits thereof to be expended and employed about the Reparations of the said Church which were done accordingly The Question now was Whether these Messuages were given to the King by the Statute of 1 Ed. 6. of Chaunteries It was said part of the Profits were given for a good use and that should save the Lands But Resolved because that was incertain for it is si quid fuerit and also for that it appeareth That the Superstitious uses and the Quit-rent did amount to the full value of the Messuages and the value shall be taken as it was at the time of the making of the Will and not to be of any greater value that the said Messuages were given to the King by the said Statute A man devised two Houses in L. to the Churchwardens of S. 1 To find an Obit and to bestow 3 s. per annum upon the same Obit 2. The residue of the Profits to Repair the said Church of S. and to provide Ornaments in the said Church In this Case it was Adjudged That by the Statute of 1 Ed. 6. no more of the Land was to the King than was given to the Obit and the Devise to the other uses of the rest was good A Citizen and Freeman of London seized of divers Messuages and Tenements of the yearly value of 30 l. 6 s. 8 d. by his Will before the Statute of 1 Ed. 6. Devised the same to the Corporation of Skinners of London and that 42 s. 8 d. thereof should be employed upon an Obit and 12 Marks yearly thereof upon the Priest and the residue to be employed upon Poor men of the Corporation decayed by Misfortune who inhabited the said Messuages and Tenements and appointed the said Poor men to pray for his Soul and further with the Profits to repair the Messuages and Tenements and after the Statute of 1 Ed. 6. was made of Chanteries It was the opinion of the Court 1 That Lay-Corporations are excepted out of the Statute for their Lands which they have to increase their Treasure for the good of the Corporation but not for Lands which they have to employ to Superstitious uses 2 Resolved That all the money which was given for the Obit and the finding of a Priest was a Superstitious use and given to the King by the Statute but that which was given for the maintenance of the Poor men and although it was appointed them to pray for his Soul which was a Precept suitable for that time and which was given for the Reparation of the Messuages was not given to the Crown by the said Statute And Turner's Case was vouched to be Adjudged where Land was given to the intent that his Feoffees should keep an Obit with so much of the Profits of it as they should think fit in their discretion that the Land thereby was not given to the Crown but so much of the yearly Rent as the Feoffees employed to that purpose and if they had employed nothing that way then nothing was given to the Crown In the principal Case it was Adjudged against the Queen and Informer And in the Case between the Queen and Palmer it was said by Anderson Chief Justice That where a Gift is made to sustain Poor men and Mass-Priests without limiting a certain quantity how much to one use and how much to the other use there the Queen shall have the whole Land But if the quantity was appointed as to one use and how much to the other use there the Land is not forfeited but only so much as is employed to the Superstitious uses 10. In order to the better execution of the Premisses there was a Court established commonly called the Court of Augmentations erected as a Court of Record by Authority of Parliament An. 27 H. 8. which was to have one Great Seal and one Privy Seal consisting of a Chancellor as the chief and principal Officer thereof a Treasurer Attorney Sollicitor Clerk Usher and Messenger All Lands c. belonging to Monasteries Priories and other Religious Houses and Purchased Lands were within the survey and government of this Court which as the Lord Coke says could not be erected but by Parliament because a Chancellor and a Court of Equity were constituted There were also other Ministerial Officers that had relation to this Court for there were Ten Auditors called Auditors of the Revenues of the said Augmentations and Seventeen particular Receivers of the said Revenues This Court of Augmentations together with the Court of General Surveyers being
5. was the Question Coke Chief Justice This Modus cannot go to this new Mill for an ancient Mill your Modus shall be allowed but not for the Mill newly erected the Custome will not extend to it and therefore by the Rule of the Court for this new Mill a Consultation was granted Mill-stones if one pair thereof be turned into two pair both of them shall pay Tithe and their Priviledge if they had any will be lost Pasch 17 Jac. Johnson's Case Fitzh N. B. I. G. Co. 244. Brownl 1. 31. So that if there be but one pair of Mill-stones in a Mill and a Rate-Tithe be paid for them if afterwards there be another pair of Mill-stones put on now Tithes must be paid in kind Brownl ibid. Milk paying Tithe exempts the payment of Tithe-Cheese made of the same Milk Et è contra Mines or Minerals of Iron Brass Tinn Lead Copper Coles and the like are not Tithable Register 51. F. N. B. 53. 9. Broo. Dismes 18. Mixt Tithes are of the profits of such things as arise partly from the labour and care of men and partly from the Earth whereof the things are and sometimes are called Predial Mediats and come not immediately of the Ground but of things maintained out of the Ground as Cattel Calves Lambs Kids Wool Milk Cheese Chicken Geese Ducks Swans Eggs c. Mixt Tithes are properly such as come of Milk Cheese c. Or ex foetibus animalium quae sunt in pascuis gregatim pascuntur ut in Agnis Vitulis Haedis Caprcolis Pullis c. Coke Magn. Chart. 649. Modus Decimandi is the payment of something in lieu of the just and full Tithe of a thing Tithable legitimated by Composition Custome or Prescription it is when Lands Tenements or Hereditaments have been given to the Parson and his Successors or an Annual certain Sum or other Profit alwaies time out of mind to the Parson and his Successors in full satisfaction of all Tithes in kind in such a place and all Presidents in Prohibitions in discharge of Tithes in case De modo Decimandi run thus viz. That such a Sum had been alwaies paid in plenam Contentationem Satisfactionem Exonerationem omnium singularum Decimarum And although the Sum be not paid yet cannot the Parson sue for Tithes in kind not for the Tithes in kind in the Ecclesiastical Court but for the money in the Temporal Trin 7 Jac. in the Case De modo Decimandi Prohibitions debated before the K. Coke Select Cas 40 46. In Biggs Case it was Resolved where a Prohibition is awarded upon a Suggestion of a Modus Decimandi and a Consultation awarded for not proving the Suggestion within Six months there a new Prohibition shall not be awarded upon an Appeal in the same Suit More 1234. This Modus Decimandi refers only to the Reality viz. the Tithes and not to the Personalty viz. the Offerings Nor can it begin at this day but is and must be by Prescription and is intended to have a lawful commencement upon some Agreement at first made for valuable Consideration with the Parson or Vicar And if the Modus Decimandi be to pay a Sum of money for the Tithe of a piece of Ground which is after turned to Houses and Gardens the Modus continue Yea it doth so actually discharge and extinguish Tithes that they are thereby turned into a Lay-Fee as well as the Nine parts Touching this Modus Decimandi there are some things that seem doubtful and unresolved in the Law as if the Modus be of Land given to the Parson in satisfaction of Tithes and the Land after happen to the evict Q. if the Tithes in kind do not in such case revive Or if Lands be once discharged of Tithes by a Modus Decimandi Q. whether the Tithes shall revive again upon failure of the Modus But if Land be granted to the Parson in satisfaction of Tithes if the Parson alien the same without the consent of the Patron and Ordinary his Successor shall have Juris Vtrum If a man Prescribe to pay a Modus Decimandi for the Tithe of certain Lands if the Land be afterwards lett to Farm and the Farmer pay the Tithe in kind yet it shall not destroy the Prescription as to the Lessor If a Lessee pay Tithes in kind yet that shall not destroy a Modus in the Lessor But if the Modus Decimandi be of a thing for which no Tithe is due de Communi jure it is not good nor can it stand to rise and fall according to the Rent by Prescription as of Houses in London That the Trial of Modus Decimandi as the Common Lawyers affirm belongs to the Temporal not the Spiritual Courts and for the grounds of Prohibitions in such case If the Ecclesiastical Court allow not of any such thing as a Modus Decimandi it is because the Canonists do hold Tithes to be due Jure Divino and consequently not extinguishable in the whole nor diminishable in part by any Custome or Prescription in opposition to the Law of God The Temporal Courts will admit them also to be Jure Divino but do allow if so only Secundum quid viz. quoad sustentationem Cleri but not quoad Decimam aut aliquam aliam certam partem and therefore do admit of a Modus as to the quantum where there is a sufficient maintenance for the Clergy besides which is not only allowed but also confirmed by Act of Parliament So that if the Lord of a Mannor grants parcel of his Mannor to a Parson in Fee to be quit and discharged of Tithes and makes an Indenture and the Parson with the assent of the Ordinary without the Patron grants to him that he shall be discharged of Tithes of his Mannor for that parcel of Land if afterwards the said Lord of a Mannor or his Assigns be sued in the Ecclesiastical Court for Tithes of his Mannor he or his Assigns shall have a Prohibition upon that Deed and therefore if the Lord of the Mannor hath alwaies holden his Mannor discharged of Tithes and the Parson had time out of mind Lands in the same Parish of the Gift of the Lord of which the Parson is seised at this day in Fee in respect of which the Parson nor any of his Predecessors ever had received any Tithes of this Mannor If the Parson now sueth for Tithes of this Mannor the Owner of the Mannor shall shew that Special matter that the Parson and his Successors time out of mind have holden those Lands of the Gift of one who was Lord and the same is good Evidence to prove the Surmize in the Prohibition And in another Case of a Modus Decimandi it was holden by the Court That if a Modus Decimandi be for Hay in Black-Acre and the party soweth the same with Corn seven years together the same doth not destroy the Modus
Parson of one Parish having part of his Glebe in another may Prescribe in non Decimando for the same So that a Prescription even de non Decimando as for Ecclesiastical persons their Farmers and Tenants may be good In Nash and Molin's Case it was agreed by the Court That a Spiritual man may Prescribe in Non Decimando Cro. par 1. And as for any other person a Prescription de modo Decimandi that is to pay Money or other things in lieu of Tithes in kind is good and if he can prove it Time out of mind this will discharge him Thus a Prescription to pay 4 d. or any other Sum for all his Tithe whatever or for all his Tithe-Hay or for all his Tithe-Corn in such a Farm or in such a Close or for all his Fruit in such an Orchard is good But a Prescription of paying no Tithe-Corn because he pays Tithe-Hay or of paying no Tithe of his Cattel because he pays Tithe-Corn is no good Prescription Or of not paying of Tithes in one place because he pays in another or of not paying Tithe-Lamb because he pays Tithe-Wool vel è contra or of not paying Tithe for other Cattel because he pays 12 d. for a Cow these and the like are no good Prescriptions Yet a Prescription to pay a less part than a Tenth may be good and binding Also a Prescription to pay a peny called Hearth-peny in satisfaction of Tithe for all Combustible Wood may be good Likewise a Prescription by the Lord of a Mannor to pay six pound in satisfaction of all the Tithe-Corn within the Mannor and to have the Tenth Sheaf or Cock in recompence of his payment is good But if the Prescription be to be discharged of Tithe-Hay of such a ground or Tithe-Corn of such a ground and the Owner change the nature of the Ground as Pasture into Tillage or Tillage into Pasture the Prescription is gone Yet a Prescription is not destroyed by an Alteration of payment as if instead of the money to be paid another sum or Tithes in kind have been paid for 20 years past But a Prescription to have Tithes of Houses according to the Rent is not good for no Tithes are to be paid for Houses in any City save in London only Regularly Prescription referrs to one in private as Custome does to many in publick and where a Prescription de modo Decimandi is denied there a Prohibition will lie to try it at the Common Law otherwise if the Prescription or Custome be agreed If a Prescription by a Parishioner be to pay the Tenth part of Corn as a Modus Decimandi for the Hay also that grows on the Headlands it is not good but such Prescription for the Corn and After-Rakings is good with an averment That they are sparsae minus voluntarie If there be a Prescription of a Modus Decimandi for an Orchard or Garden and it afterwards ceases to be such the Modus shall cease also and Tithe shall be paid in kind but if it afterwards be restored to a Garden or Orchard by being replenished with Herbs or Fruit-Trees it shall pay the Modus as formerly If the Modus be to pay two shillings and the Shoulder of three Deer for a Park the Modus remains though the Park be disparked it is otherwise in case the Modus be only to pay Venison Or if the Prescription be to pay a certain Sum of money for all the Tithes of a Park the Modus shall continue though the Park be afterwards disparked A Prescription of a Modus Decimandi generally for a Park is not good if it be Disparked but it shall be particularly for all Acres contained in the Park Prescription being a Temporal thing is Triable only in the Temporal Courts and therefore in the Case of Two Parsons of Two several Parishes where one of them claimed Tithe within the Parish of the other and said That all his Predecessors Parsons of such a Church viz. of D. had used to have the Tithe of such Lands within the Parish of S. and pleaded the same in the Spiritual Court The Court was of Opinion That in this Case a Prohibition did lie for he claims only a portion of Tithes and that by Prescription and not meerly as Parson or by reason of the Parsonage but by a Collateral cause scil Prescription which is a Temporal cause and thing And in another Case it hath been Adjudged That if a Prescription be laid to pay a Modus Decimandi to 100 Acres or to several things if there be a failure of one Acre or of one thing it is a failure of the whole Prescription But where it hath been Prescribed to pay in one part of the Land the Third part of the Tenth and in another part the Moity of the Tenth for all manner of Tithes it hath been held a good Prescription These Prescriptions de modo Decimandi are equally incident as well to Lay-persons as to persons Spiritual or Ecclesiastical but as to Prescriptions de non Decimando none but Spiritual persons are capable of being discharged of Tithes in that kind as was Resolved in the Bishop of Winchester's Case Yet a whole Countrey or County may Prescribe de non Decimando though this or that particular meer Lay-man cannot nor indeed can the other unless there be sufficient Maintenance for the Clergy besides The Prescriptions de modo Decimandi are confirm'd by Act of Parliament and if any Lay-man will Prescribe de non Decimando to be absolutely discharged from the payment of Tithes without paying any thing else in lieu thereof he must Found it in some Religious or Ecclesiastical person and derive his Title to it by Act of Parliament and it is not sufficient to say That they who Prescribe de non Decimando are Churchwardens who have Land belonging to their Church for they are neither Religious nor Spiritual persons But they who are such indeed may so Prescribe not only for themselves but also for their Tenants and Farmers as was formerly said So also may the Kings Patentees of those Abbey-Lands that came to the Crown by the Statute of 31 H. 8. Prescribe de non Decimando by force of the said Statute if so be it may be proved That they have beyond the Memory of man so enjoyed the Lands discharged from the payment of Tithes But for a Parishioner to Prescribe to Non-payment of Tithes because he hath Time out of mind repaired the Church is no good Prescription otherwise in case he had repaired the Chancel and in consideration thereof had been quit of Tithes the Reason is because the Parson not being obliged to repair the Church hath no recompence And in Sherwood and Winchcombs Case it was Resolved That a man cannot Prescribe to have Tithes as parcel of a Mannor for that they are Spiritual but a
Prescription to have Decimam partem granorum is good Cro. par 1. In a Case for a Prohibition A. Libelled in the Ecclesiastical Court for Tithes of rough Hay growing in Marshes and Fenny-grounds in M. The Plaintiff Surmized That there was 2000 Acres of fenny-Fenny-Lands within the Parish and 600 Acres of Meadow and that the Parishioners paid Tithes of Hay and Grain growing upon the Meadow and Arable Land and had paid a certain Rate for every Cow and because they had not sufficient Grass to keep their Cattel in Winter they used to gather this Hay called Fenny-Fodder for the subsistance of their Beasts for the better increase of their Husbandry and for this cause had been alwaies freed from the payment of the Tithes thereof It was Resolved That the Surmize was not sufficient for a Prohibition for one may not Prescribe in non Decimando and their alledging That they bestowed it on their Cattel is not a cause of Discharge A Consultation was awarded Webb and Sir Hen. Warners Case Cro. par 1. Also in Munday and Levice's Case in a Prohibition it was Adjudged That it was not a good Prescription that Inhabitants have used to pay Calves and Lambs and a peny for every Milch-Cow in satisfaction of all Tithes of Lambs Calves Milch-kine and all Barren and other Beasts and Agistments More 's Rep. And where a Parson sued for Tithes of Fodder and the Parishioners Prescribed in Non Decimando because the Fodder was for their Cattel which manured their Land It was held no good Prescription but it was Agreed Tithes should not be paid for their Agistments nor for Hedge-wood to enclose the Corn nor for Fuel More ibid. Case 892. In the Case between Pigott and Hearne the Lord of the Mannor of B. in the Parish of D. did Prescribe That he and his Ancestors and all those whose Estates c. had used from time to time whereof c. to pay to the Parson of D. the now Plantiff and his Predecessors 6 l. per Ann. for all manner of Tithes growing within the said Parish and that by reason thereof he and all those whose Estates c. Lords of the said Mannor had used time whereof c. to have Decimam Garbam decimum Cumulum Garbarum of all his Tenements within the said Mannor It was in this Case Resolved 1 That it was a good Prescription and that a Modus Decimandi for the Lord by himself and all the Tenants of his Mannor for barring the Parson to demand Tithes in kind is a good Prescription because it might have a lawful Commencement 2 It was Resolved That it was a good Prescription to have Decimam garbam decimum Cumulum garbarum vel granorum or the Tenth shock for he hath it as a Profit Appender and not as Tithes 3 Resolved in this Case That if the Queen be Lady of the Mannor she may Prescribe to have Tithes for that she is capable of them she being Persona Mixta Capax Spiritualis Jurisdictionis More 's Rep. And in Green and Handlyes Case it was Resolved 1 That it is a good Custome to pay the Tithe-Wool at Lammassday though it be due upon the clipping 2 That for the Pasturage of young Barren Cattel preserved for the Plough and Pail no Tithe shall be paid 3 That a Prescription to pay a peny called a Hearth-peny in satisfaction of the Tithe of all Combustible Wood is a good Prescription More Case 1213. Priviledge is derived from the Supream Authority upon good Consideration and referrs sometimes to Persons sometimes to Places and is an exemption from Tithes derived from such Supream Authority None are to pay Tithes for Lands priviledged or lawfully discharged from the payment thereof Stat. 2 Ed. 6. c. 13. yet such Priviledges as are meerly Personal do not exempt Lands from the payment of Tithes longer than they are in the hands or occupation of Priviledged persons Q QVarries of Stone are not Tithable Adjudged Mich. 19 Eliz. B. R. Pasch 34 Eliz. C. B. Liff and Watts Case Cro. par 1. More 's Rep. Nor do the Quarries of Slate Cole or the like pay any Tithe More Case 1275. Nor Quarries of Lime Gravel Sand or Clay for these are parcel of the Inheritance Regist 55. F. N. B. 53. Broo. Dismes 18. Mich. 15 Car. B. R. Skinner 's Case No Tithes shall be paid of Quarries for they are parcel of the Freehold Hill 11 Jac. B. R. per Curiam R RAkings of the Stubble of Corn or Grain are not Tithable for they are to be left for the Poor and Orphans and the Law will not give to the Parson or Vicar Tithe of that which is appointed for Alms. Mich. 6 Jac. C. B. Smith's Case Pasch 7 Jac. C. B. Adjudg Cro. 1. 660. So that whereas it is said that the Rakings of the Stubble of Corn is not Tithable where the Corn it self was Tithed More Case 433. It may not be understood as if the Tithing the Corn it self were the Reason why the Rakings are not Tithable but because they are by the Law of Moses due to the Poor and therefore not to be Tithed understand this also of Ordinary Rakings not voluntarily scattered for of such only it is that no Tithes shall be paid as not due by the Levitical Law and for that they are but the scattering of the Grain whereof he had paid Tithes before Pasch 7 Jac. B. per Curiam Hill 8 Car. B. R. Saunders Paramour per Cur. Trin. 3 Jac. B. R. Pasch 14 Jac. B. R. Pitt and Harris Prohibition granted otherwise it is in case the Rakings were voluntarily and fraudulently scattered Hill 14 Jac. B. R. Peck and Harris per Cur. Adjudged Mich. 3 Jac. B. R. per Popham Pasch 7 Jac. per Cur. Mich. 14 Jac. B. R. Joyse Parker And where there is a Prohibition of Tithes of Rakings the Suggestion ought to be That they were Minus voluntarie sparsae otherwise it is not good for it is not sufficient to say That they were Lapsae dissipatae in Collectione And it was Resolved in Johnson and Awbrey's Case That Tithes are not to be paid for After-pasture of Land nor for Rakings of Corn. Also in Green and Hunn's Case a Prohibition was for suing for the Tithes of Rakings of Barley a Prescription to make the Barley into Cocks being alledged and to pay the Tenth Cock in satisfaction of all Tithes of Barley and Adjudged a good Prescription Notwithstanding in the Case between Bird and Adams in a Prohibition to stay a Suit in the Ecclesiastical Court for Tithes of the Rakings of Lands after the Crop of Corn was taken away It was held That the Prohibition would not lie but that Tithes should be paid of Rakings More 's Rep. But vid. 42 Eliz. B. R. in Green and Hale's Case it was Adjudged That by the Custome of the Realm Tithes should not be paid of Rakings Also in Green and Handlye's Case it was
that Case it was said If Willowes grow within the Site of a House it is Waste to fell them yet if they be felled that Tithes shall be paid of them Woad yields a Predial Tithe and regularly to be computed inter Minutas Decimas yet in some Cases may be Great Tithes in places where it is much sowed as in Vdall and Tindall's Case The Case was That in Trespass for taking of two Loads of Woad the Jury found That if they were Minutae Decimae then the Jury found the Defendant guilty if they were not Minutae Decimae then for the Plaintiff It was said for the Plaintiff That without more Circumstances it shall not be intended Minutae Decimae for it may be That a great quantity of Woad may be sown and the greatest part of the Commodity in the Parish may consist in it for Minutae Decimae are but of small consideration in a Parish as Herbs in a Garden and such like and therefore Woad sown in a Field is not Minutae Decimae It was Resolved by the Court That Woad growing in the nature of an Herb the Tithe thereof ought to be accounted Minutae Decimae and belong to the Vicar And the Dean and Chapter of Norwich Case was vouched to prove it That the Tithe of 40 acres of Land sowed with Saffron did belong unto the Vicar and not to the Parson because they were Minutae Decimae Hill 1 Car. C. B. Sir Rich. Vdal and the Vicar of Altons Case Cro. 3. par 20. vid. Hutton 77. the same Case Wood is computed among the Predial Tithes as also among the Great Tithes yet it hath been Resolved That if a Vicar be only endowed with the Small Tithes and hath by reason thereof alwaies had the Tithe Wood that in such case it shall be accounted a Small Tithe otherwise it is to be accounted among the Great Tithes Wood or a great Wood consisting for the most part of Underwoods only some Great Trees here and there sparsim therein the whole Wood is Tithable unless they be specially exempted But if the Wood for the most part consist of Timber-Trees only some small parcel of Underwoods or Bushes in the same no Tithe shall be paid for such Wood the Timber-Trees do in that case priviledge the rest of the Wood Wood converted into Arable shall not be discharged of Tithes as Barren Land within the Statute of 7 E. 6. Trin. 12 Jac. B. R. Case Maschal Price Roll. Rep. The Tenth acre of Wood in a Coppice is a good payment of the Tithe specially if such be the Custome of Tithing Wood in that Countrey otherwise Wood in a Coppice or the like cut and sold the Tithe thereof is to be answered not by the Buyer but the Seller as some conceive which by others is opposed who hold That the Buyer not the Seller of Woods selled to be sold shall answer the Tithe the Reason is because Tithes do follow the Fruits yet the Parson for his Right hath his Remedy against either But Wood of Coppices or Trees that one cuts and spends in his own House-keeping though he spend much is not Tithable unless the Parson can alledge and prove a special Custome to the contrary for generally Wood used for Fewel in House-keeping is not Tithable sed Qu. the Custome it being not so per Legem terrae Nor is there any Tithe to be paid for such Wood as is cut for Hop-poles where Tithe is paid of the Hops But where Wood is grubbed up the Land that thereby is made fit for the Plough shall pay Tithe presently And if the Tithes of Wood after the Inheritance thereof sold be subtracted the Parson may by the Canon Law implead either the Buyer or the Seller at his choice though he can recover but of one but now by the Statute the Seller only unto Treble dammages If there be Parson and Vicar in one Church and the Vicar hath the Tithe of Woods and the Parson the Tithe of the Pasture and Wood be felled for Fencing and enclosing the Pasture the Vicar shall not have Tithe of the Wood Woodlands converted into Arable or Tillage is not discharged of Tithes as Heath Waste or other Barren Grounds within the Statute of 7 Ed. 6. Trin. 12 Jac. B. R. Case Maschall vers Price in fin Roll. Rep. A Prohibition in another Case was granted to stay a Suit for Tithe Wood upon a Surmize That the Wood was spent in his House for Firing and shews that the Custome in the same Parish is That the Owners of any House and Land in the said Parish who pay Tithes to the Parson ought not to pay Tithe of Wood spent for Fewel in their Houses And Issue being upon this Custome it was found for the Defendant It was moved in Arrest of Judgment That although it be found there is no such Custome that yet he ought not to pay Tithe for Wood spent in his house nor for Fencing-stuff for Hedges but per Legem terrae ought to be discharged of them But it was Resolved by the Court That it is not de jure per Legem terrae that any be discharged of them for it is usual in Prohibitions to alledge Customes or by reason of other Lands whereof he pays Tithes that he is discharged of that Tithe but not to alledge that per Legem terrae he is discharged And in this Case the Plaintiff in the Prohibition having alledged a Custome and it being found against him it was Adjndged for the Defendant that a Consultation should be awarded By Custome Tithes may be paid for Wood spent in a mans own House Mich. 14 Jac. B. Watley and Hanberry Agreed And albeit there are some Trees of what age or bigness soever they be are regularly to pay Tithes as Willows Hasels Hollies Maples Birch Alders Thorns c. yet if they are cut for Fencing of Grounds or for Fewel to be spent in the Houses of the Owner within the same Parish no Tithes shall be paid thereof unless it hath been otherwise by Custome Also Wood cut for Burning of Bricks to be used for repair of the Owners Buildings in the same Parish pay no Tithes otherwise if used for Bricks to sell or for making Houses not of necessary habitation so as the Wood in its own nature be Tithable Likewise Tithe shall not be paid of the Roots of such Coppice-Wood as paid Tithe at the cutting thereof if such Roots were soon after the cutting such Wood grubbed up to cleanse the Ground If Woodlands be mixt with Woods partly Tithable partly not Tithable it hath been held That if the Major part be not Tithable it shall priviledge the rest but if the greater part be Tithable then all that is Tithable shall pay Tithes Touching the manner of Tithing of Wood and Trees and how the Tithes thereof are to be paid and delivered the Reader for his better satisfaction
may consult the Authors in the Margent The Parson of Henley brought an Action of Debt for 600 l. upon the Statute of E. 6. for not setting forth Tithes of Wood and shews that the Defendant had cut down 200 Loads of Wood to the value of 200 l. and saith that the Tenth part of that did amount to 200 l and so he brought his Action for 600 l. upon the Statute And the Plaintiff was Non-suit for one fault in his Declaration for whereas he declares the price of the Wood to be 200 l. it was mistaken for it should have been 2000 l. for he demanded more for the Tenth part than the Principal is by his own shewing If a man buy Wood Tithable and burn it in his own House he shall not pay Tithes thereof as hath been Resolved And no Tithes shall be paid for Wood cut and employed for the enclosures in the Husbandry Also if a man cut Wood and burn it to make Brick for repairing of his Dwelling-house for himself and his Family within the Parish no Tithes shall be paid for that Wood in regard the Parson hath benefit by the labour of the Family otherwise it is in case the Bricks were only to enlarge his house within the Parish and more than needful for his Family as for his pleasure or delight If a man sell Wood to me and I burn it in my house the Vendor shall stand charged for the Tithes thereof and not the Vendee for no Tithes are due for Wood burnt in the Parishioners house as hath been Resolved Pasch 14 Jac. in B. Parson Ellis Drakes Case and Prohibition granted accordingly Although it was said That by the Civil or rather Canon Law the Parson hath his Election to Sue either of them which is contrary to the Common Law In the Lord Clanrickard's Case against Dame Denton the Plaintiff surmized to the Court That all the Vill. of Kent which is a Precinct containig above forty Parishes time out of mind c. have been discharged of the payment of Tithes of Wood under the age of 20 years and the Defendant had sued him in the Ecclesiastical Court and hereupon had a Prohibition And the Defendant Traversed the Custome which a Jury was taken at the Bar to try and for inducement of the Custome Lindwood was produced in Cap. de Decimis where it is said That before that time Tithes were not paid for Wood which is contrary to the Old and New Testament and that Assertion is made by Stratford Archbishop of Canterbury for that this was a Provincial Constitution that at that time viz. 17. E. 3. Tithes of Sylva caedua shall be paid By which Constitution the Comminalty finding themselves grieved exhibited a Bill in Parliament the same year 17 E. 3. reciting the Ancient Usage of not paying such Tithes and the last Constitution to the contrary and prayed a Prohibition to the contrary To which Bill answer was made in this manner viz. Be it done in this case as it hath been done before this time And the next year another Petition was made in Parl. for the same cause to which it was answered also That where Tithes of Wood have not been used to be paid by Custome that a Prohibition shall be granted And these Acts of Parliament the Plaintiffs Counsel produced out of the Parliament-Rolls Crook Justice gave the Rule viz. Quod de grossis aâ—boribus Decimae non dabuntur sed de Sylva Caedua Decimae dabuntur Vid. Dr. Stu. 164. a. 169. b. Anscombe said The Doctor and Student mistook the maker of that Constitution of Stratford Archbishop In a Prohibition for Tithes of Wood it was suggested That in the Parish there is a Custome that all the Parsons of the said Church time out of mind Habuerunt gavisi fuerunt such Lands parcel of the Manner of F. in recompence of all Tithe Wood within the Parish It was the Opinion of the Justices that it was a good Prescription for it may be that at the beginning all the Land was parcel of the Mannor and then the allowance of the Profits of this Land was alotted in discharge of the Tithes of all the Woods within the Parish In Prohibition to stay a Suit in the Ecclesiastical Court for Tithes Wood it was shewed that the Custome of the Parish is That the Owners of any House and Land in the Parish who pay Tithe to the Parson ought not to pay Tithe for Wood spent for Fuel in their Houses It being found for the Defendant the Issue being upon the Custome It was said That notwithstanding there were any such Custome yet Tithe ought not to be paid for Wood spent for Fuel nor for Fencing-stuff but per Legem terrae he ought to be discharged thereof Resolved It is not de jure per Legem terrae that any one is discharged of them for it is usual in Parishioners to alledge a Custome but not to alledge that per Legem terrae he is discharged And in this case the Plaintiff in the Prohibition having alledged a Custome and it being found against him a Cousultation was awarded A Composition was betwixt an Abbot and a Parson that in recompence of the Tithes of all the Woods within the Mannor whereof the Abbot Owner That he should have to him and his Successor 20 Loads of Wood every year in 20 Acres of the said Mannor to burn and spend in his House The Parsonage was Appropriate to the Abbey and after the Abbey was dissolved the King granted the Parsonage to one and the 20 Acres to another It was Resolved That by the Unity the Estovers were not extinct for it they be Tithes they are not extinct by this Unity of possession for that Tithes run with the Lands and Tithes de jure Divino Canonica Institutione do appertain to the Clergy Wool of Sheep is Tithable proportionably to the time they are in the Parish as thus viz. The Parson shall have Eight pound of Wool in Eighty of Forty Sheep in the Parish a whole year Four pound of Wool in Forty if they were there but half the year Two pound of Wool in Twenty if they were there but Three months and but the Tithe or Tenth of the Twelfth part of the Wool if the lay and fed but One month in the Parish The Wool of Sheep shorn and dying before Easter next following such shearing is not Tithable unless the Parson or Vicar can alledge a special Prescription for it Therefore Q. where by Prescription such Tithe is claimed It is said also That a Custome to pay a Halfpeny for the Wool de ovibus venditis after shearing and before Michaelmass is good and that the Sheep discharged shall be Weathers as well as Ewes Also Wool-locks and Flocks of Wool after the Wool made are likewise Tithable if there be more than ordinary left otherwise not And if a Prescription be alledged to be discharged of Locks of Wool it
Vi Laica removenda further explain'd 26. The Writ Quod clerici non eligantur in Officium 1. AGainst the unlawful Possessor who is the Usurper liveth Three Writs viz. One of the Right as the Writ of Right of Advowson and the other two of the Possession viz. A Quare Impedit and Darrein Presentment This Assize of Darrein Presentment or Assisa ultimae Praesentationis is a Writ which lieth where a man or his Ancestor hath presented a Clerk to a Church and after the Church becoming void by his death or otherwise a stranger presents his Clerk to the same Church in disturbance of him who had last presented This Writ is otherwise also used and differs from that of a Quare Impedit for the Quare Impedit lies upon the disturbance of one who hath the Advowson in his Presentation when the Church is void The other lies where a man or his Ancestors had presented before and now the Church becoming void again a stranger presents in disturbance of him who had last presented Where ever a man may have Assize of Darrein Presentment he may have a Quare Impedit but not e contra He that hath right to present after the death of the Parson and bringeth no Quare Impedit nor Darrein Presentment but suffereth a stranger to usurp upon him yet he shall have a Writ of Right of Advowson but this Writ lieth not unless he claim to have the Advowson to him and his heirs in Fee Simple Where the Ordinary Metropolitan or King presents for Lapse any of these Collatives will serve the Patron for a possession in his Assize of Darrein Presentment which Assize of Darrein Presentment may not be purchased pending a Quare Impedit for the same avoidance and therefore in the Case where William St. Andrewes brought a Writ of Assize of Darrein Presentment against the Archbishop of York Mary Countess of Shrewsbury and one Hacker aud the Bishop making default the Countess and Hacker pleaded in Abatement that the Plaintiff before the Writ purchased brought a Quare Impedit against the same Defendants and shews all certain which remains undetermined and averrs that they are both of the same avoidance And upon Demurrer the Writ was abated by Judgment 2. Assize de utrum or Assisa utrum is a writ which lieth for a Parson against a Layman or for a Layman against a Parson for Land and Tenements doubtful whether it be Lay-Fee or Free Almes These Writs are called Assizes probably either because they settle the possession and so an outward Right in him that obtains by them or because they were originally executed at a certain time and place formerly appointed or because they are tryed most commonly by especial Courts set and appointed for that purpose The Incumbent as touching his Right for his Rectory hath the onely Writ of Juris utrum and for his possession any other possessory Action 3. Quare Impedit is a Writ which lieth for him who hath purchased an Advowson in Gross or a Mannor with an Advowson thereunto appendant and against him who when a Parson Incumbent dieth or a Church otherwise becomes void disturbeth the other in the Right of his Advowson by presenting a Clerk thereunto being void Vhis Writ is distinguish'd from the former of Darrein Presentment or Assisa ultimae Praesentationis because this latter lieth as aforesaid onely where a man or his Ancestors formerly presented but the Quare Impedit lies properly for him who himself was the Purchaser of the Advowson though he that may have Assize of Darrein Presentment may have the other if he please but not so Vice versa as was also before observed Yet it is said in Reg. Orig. f. 30. That a Quare Impedit is of a higher Nature than an Assize of Darrein Presentment because it supposeth both a Possession and a Right Which Quare Impedit the Executors of a Testator may as well as himself might have upon a disturbance made to the Presentment and so was the Opinion of the whole Court in Smallwoods Case awainst the Bishop of Coventry and Lichfield that the Executors may have a Quare Impedit upon a disturbance made to the Presentation which Writ lieth also of a Chappel Prebend c. And in case after the death of the Ancestor of him that presented his Clerk unto a Church the same Advowson be be assigned in Dower to any Woman or to Tenant by the Courtesie which do present and after the death of such Tenants the very Heir is disturbed to present when the Church is void it is in his election whether he will sue the Writ of Quare Impedit or of Darrein Presentmet the which it seems is also to be observed in Advowsons Demised for term of life or years or in Fee Tail And Dammages shall be awared in both these Writs that is if the time of Six Months pass by the disturbance of any so that the Bishop doth thereby Collate to the Church and the very Patron lose his Presentation for that turn Dammages shall be awarded for two years value of the Church And if the Six Months be not elapsed but the Presentment bederaigned within that time then Dammages shall be awarded to the half years value of the Church And if the disturber hath not wherewith to satisfie the Damages where the Bishop Collateth by lapse of time he shall suffer two years Impisonment and half years imprisonment where the Advowson is deraigned within the half year Likewise he that recovers a Mannor whereunto an Advowson is appentlant being disturbed to present when the Church is void shall have a Quare Impedit In which as also in Assise of Darrein Presentment plenarty of the Defendants or Disturbers party is no plea but two Quare Impedits of one Church and for one avoidance a man cannot have In the Case between the King and the Bishop of Norwich and Saker and Cole it was resolved that when one is admitted instituted and inducted by the presentation of a common person though it was upon an usurpation upon the King yet the King cannot remove the Incumbent without a Q. Impedit brought for the Church is full of him till he be removed Cro. par 2. 4. Ne admittas is a Writ that lieth for the Plaintiff in a Quare Impedit or him that hath an Action of Darrein Presentment depending in the Common Pleas and feareth that the Bishop will admit the Clerk of the Defendant during the dependency of the Suit betwixt them This Writ must be sued within six months next after the Avoidance because after the six months the Bishop may present by the lapse Therefore if the Patron of a Church vacant having or not having any Controversie depending with another touching the right of Presentation doubteth that before he makes his Presentation the Bishop may collate a Clerk of his own or admit a Clerk presented by another to the same Benefice unto