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 âonorificum 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-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
this H. procured a Prohibition against H. and declared that the Defendant had sued him in the Ecclesiastical Court for a Way or Passage he was Proprietor of Tithes in the Parish of M. and that the Common way to carry the Tithes out of the Plaintiffs Land was by a Close called S. and that the Plaintiff had stopt it up when in very truth the Way was by Prescription by a Close called W. and that he had pleaded it in the Ecclesiastical Court and the said Court would not allow thereof and for that the Cognizance of a Prescription for a Way ought to be tried at the Common Law and not in the said Court c. Whereupon the Defendant demurred and by the Opinion of the whole Court a Consultation was granted for that the Cognizance of Waies for the carrying of Tithes belongs to the Court Christian as appears by the Statute of 2 Ed. 6. and Fitzh N. B. in Consultation and Lindwood de Decim When Tithes of Corn are severed from the Nine parts an Action of Trespass lieth against any that shall take them away whether he be the Owner of the Land or a Stranger Also an Action of Debt lieth for Predial Tithes as of Corn Wood Grass Fruit Hay c. and treble Dammages recoverable upon the said Statute of 2 Ed. 6. 13. But not so for lesser Tithes as of Wool Lamb c. nor for money given to the Parson in lieu thereof but for each of these Suit may be commenced according to the Statutes of 27 H. 8. and 2 Ed. 6. 13. 32 H. 8. 7. So that if the Owner of the Corn set out his Tithes and after take it away the Parson may sue him in the Ecclesiastical Court or bring an Action of Trespass against him But the Parson may not sue a Stranger in the Ecclesiastical Court for taking away the Tithes which were set out In Hele's Case against Frettenden the Resolution of the Court upon Two Cases upon the Statute of 2 Ed. 6. for not setting forth of Tithes was this viz. A man possessed of Corn sells it and before Two Witnesses sets out his Tithes and afterwards privily takes away the Tithes and the Parson sues him upon the Statute for Treble dammages for not setting forth of Tithes And the Defendant proves by Witnesses that he set forth his Tithes yet the Fraud is provided against by the Statute for the words are without fraud or deceipt In the second Case One secretly fells his Corn to one who was not known and afterwards the Vendee commands the Vendor to cut the Corn which he doth and takes away the whole Corn without setting forth his Tithes the Question was who should be sued for the Tithes and the Court held that the first Vendor should be sued for it was Fraudulent And where a Woman being Proprietor of a Parsonage took A. to Husband a Parishioner within the Parish set forth his Tithes and divided them and then immediately took them back again A. the Husband alone sued for the Treble value according to the Statute of 2 Ed. 6. Two points were moved 1 Whether that were a setting forth within the Statute And by the Court that it was not and so hath been Adjudged in 43 44 Eliz. and 1 Jac. 2 Whether the Husband may sue for the Treble value without naming his Wife And to that the Court would be Advised for though the Husband may sue alone where a thing is Personal for which he sueth as the Books of 4 Ed. 4. 31. 7 Ed 4. 6. 15 Ed. 4. 5 11. are yet where the Statute saith That the Proprietor shall have Suit for the not setting forth c. the Husband is not intended Proprietor as the Statute intends but the Wife and for that the Wife ought to joyn For the due manner of Tithing Corn the Parishioner ought of Common right to cut the same and to prepare it for the Parson and to separate it from the Nine parts he ought also of Common right to make up the Corn into Sheaves but is not obliged to gather and set it up into Hillocks or Heaps for the manner of Tithing is good if the Corn be thrown out in Shocks and being so set out they become Lay-Chattels In Guin and Merryweather's Case it was said by Doderidge Justice That if one defame and scandalize the Parson's Title to the Tithes although he be not punishable for this in the Temporal Courts yet he is punishable in the Ecclesiastical Court he said also that when Tithes are set out they are then Lay-Chattels and if a Stranger carry them away the Action lies not in the Ecclesiastical but Temporal Court otherwise it is if it were not severed from the Nine parts Ley Chief Justice Agreed it and said That if a Stranger take the Corn before Severance of the Tithes the Parson shall sue in the Ecclesiastical Court for Tithes against the Trespasser and not against the Terre-Tenant And where the Right of Tithes comes in question Prohibition shall not be granted Nor shall Fraud or Covin prevent the payment of Tithes for in a Case of Tithe-Corn where the Custome of L. in the County of B. was alledged That the Parson ought to have the Tenth Land of Corn beginning at the such Land which was next to the Church the Occupiers of the Land to defraud the Parson by Covin did not sow the Tenth-Land nor manure it yet the Parson sued for Tithe in kind to have the Tenth-Cock for Tithe of the Corn sowed and a Prohibition awarded notwithstanding the Covin because he had Remedy at the Common Law for the Fraud Cows that yield Milk no Tithe is to be paid for the Pasture thereof and if a man hath but one Cow and no Cheese made of the Milk thereof the Custome of the place must be observed so that something be paid for the Tithe thereof otherwise no Custome will bind Curtelages or places adjoyning to Mansion-houses and applied to Seeds Herbs c. are Tithable in kind if the Parson make not an Agreement for the same otherwise it must be Tithed in kind by setting forth the Tenth-part for the Parson when the Owner receives his Nine parts Custome is where a Right to many is procured in Common and Publick as Prescription is privately to one If the Custome be of translating of Tithes Predial as in Composition then it holdeth Otherwise if it be of Tithes Personal But if it be of not yielding Tithes at all it doth not hold for a Custome of paying nothing at all is not good but if it be only of yielding less than the Tenth it holdeth both in Personal and Predial Tithes It holdeth also as to the Place where Tithes ought to be left of the Time when to be yielded as also of the manner and form of yielding them So that although Custome which chiefly refers to a Place as Prescription doth to a Person cannot totally take the Tithes
and would go out of the enclosure if their Wings were not clipt and in this case Prohibition hath been granted between Winbrook and Evans Mich. 11 Car. B. R. It was Surmized That no Tithes are paid of them in a great Circuit called the Chiltern in the same County viz. of Bucks and so Prescribe in non Decimando but the Court granted the Prohibition for that they are Ferae naturae Pidgeons are Tithable Mores Abr. 1270. But if a man keep a Family and hath Pidgeon-holes about his House and he keep some Pidgeons and he kill and spend in his House the young Pidgeons that are bred there he shall not pay any Tithes for them In this Case between Vincent and Tutt Hill 13 Car. B. a Prohibition was granted and upon the Parsons Plea that the Parishioner sold them a Consultation For Tithes of Pidgeons no Prohibition lies as was Resolved in Jones and Gastrell's Case Hill 15 Jac. B. R. Roll. Rep. For the Court there said That Tithes ought to be paid of Pidgeons and for Conies per Doderidge Justice to which the Court agreed In the Case of a Prohibition for suing for Tithe Pidgeons the Defendant in the Ecclesiastical Court pleaded payment they refuse the validity of that Plea without Proof by two Witnesses the Court said it would be a great inconvenience to bring two Witnesses to prove payment of every sort of Tithes wherefore a Prohibition was granted Malary and Mariots Case Cro. par 1. And in another Case a Prohibition was prayed where the Parson sued in the Ecclesiastical Court for Tithe of Pidgeons and awarded to stand because the Court there would not allow the proof without two Witnesses More 's Abr. Case 1208. Probably the same Case with the former Vid. Doves Pigs if there be but Nine as also Calves if there be but six and the like under the number of Ten in one year the Parson can have no Tithe thereof in kind that year without a Special Custome for it but must have his Tithe pro rata either in money the same year if there be any Custome for it or in kind the next year reckoning both years together Mich. 7 Jac. C. B. Pigs are accounted a Predial Mixt Tithes Mich. 8 Jac. C. B. Pits of Stone Lime Gravel Marble Marle Chalk Cole and the like are not Tithable for the Land must not pay a double Tithe Regist 51. F. N. B. 53. 9. Broo. Dismes 18. Plants or young Plants transplanted are in some cases Tithable for the Case was A man had a Nursery of young Plants in his ground and used to transplant them and to give or sell them to others who planted them de novo in their ground out of the Parish the Parson of the Parish where the Land lay in which they were first planted Libelled in the Ecclesiastical Court for the Tithes of the value of the said Plants transplanted and a Prohibition was granted and Declaration thereon given and a Plea given in and Replication and thereon Demurrer and it was argued by Maynard for the Defendant and Rolls for the Plaintiff The only point was Whether Tithes should be paid in that case it was Resolved per totam Curiam that it ought to be paid and thereupon a Consultation was granted The Case had been otherwise Resolved if the said Plants so transplanted from the said Nursery had been replanted in the same Parish Prescription which refers to a certain person House Land or other thing as Custome doth to a County City Town Hundred c. may be considered under two respects either de Modo Decimandi or de non Decimando There is also in some Counties a Decimando res non Decimabiles a Tithing of things in their own nature not Tithable as the Tithing of Tin and Sea-Fish in Cornwal and Devon Lead in Derbyshire c. but this is by Custome not by Prescription which though in respect of Place is regularly of a more extensive latitude than properly Custome is yet in respect of Persons and Things is regularly under more Restrictive limitations than the other but as to their Origination they both ought to be continually-constant without interruption and as to their Antiquity both of them ought to be of a more Ancient date than any Memory of man can contradict and such being once duly acquired there are not many interruptions or disturbances that will null or frustrate the same A Prescription goeth to one man and a Custome to many Hill 6. Jac. rot 2613. Rolls vers Mason Brownl Rep. par 1. Prescription is Personal and alwaies made in the name of a certain person or his Ancestors or those whose Estates c. But a Custome is Local and alledged in no person but that within the Mannor there is such a Custome Co. 4. Foiston Cratchwood's Case The payment of a Sum of money or other thing in lieu and recompence of Tithe for sixty years or thereabouts is held a reasonable time to make a Prescription It was Adjudged in Grisman and Lewes Case That a Prescription to pay Tithes of one thing in recompence of Tithes of another thing is not good Adjudged also that Tithes shall be paid of Agistment of Cattel against the Opinion of Fitz. 53. Cro. par 1. This Prescription is Real that is it respects not the New or never before Tithed Fruits but the Tithable grounds that produce them thence it is that an alteration of Grain or Plants in the same Ground alters not a Prescription but he that Prescribes in the one shall Prescribe in the other also Yet a Prescription extends to no more than is in possession And therefore if the Parson of A. Prescribes to the Tithes of the Parish of B. and there happen to be Decimae Novalium that is Tithes arising of such Grounds as were never Manured nor yielded before any profit to the Church the Parson of B. and not the Parson of A. shall have them nor will Prescription lie against a Composition between the Parson and the Vicar nor hath Prescription any place where the Interessed in his right can make no demand the matter ceasing whereupon it should work So of Wood never cut the Tithe could never be demanded Regularly a Prescription to pay no Tithe nor any thing in lieu thereof is not good nor will it discharge though nothing can be proved to have been paid within the Memory of man Yet a Discharge of Land from Tithes may be shewed another way which will amount to the payment of no Tithe so that although a meer Lay-man cannot Prescribe in non Decimando yet he may Prescribe in modo Decimandi to pay a Composition to the Parson in lieu of all his Tithes and such Composition shall bind the Parson and such a Prescription shall be good But as to persons Ecclesiastical such may Prescribe not only in modo Decimandi but also in non Decimando and so may their Tenants whence it is that a
and shall recover the Treble value of the Tithes in an Action of Debt for although the Treble value be not given to the Parson or other Proprietor of the Tithes by any express words of the Statute yet forasmuch as he is the party grieved and hath the Right of the Tithes in him the Treble value is given to him For wheresoever a Statute giveth a Forfeiture or penalty against any one who wrongfully detaineth or dispossesseth another of his Right or Interest in that case he that hath the wrong shall have the forfeiture or penalty and shall have his Action at the Common Law for the same or he may Sue in the Ecclesiastical Court for the same But in his Action at Common Law it seems he shall recover no Costs as hath been Adjudged But if the Parson or other Proprietor will sue in the Ecclesiastical Court for the subtraction of the Tithes he shall recover there but the double value of them because in that Court he shall recover the Tithes themselves which is equivalent to the Treble value at the Common Law In another Case where Debt upon the Statute of 2 Ed. 6. was brought for not setting forth of Tithes the Plaintiff shewed That Two parts of the Tithes did appertain to the Rectory and a Third part to the Vicarage and that he had a Lease for years of the Rectory and another Lease of the Vicarage And for not setting forth of the Tithes he demanded the Treble value upon Non Debet it being found for the Plaintiff it was urged in stay of Judgment that he ought to have brought several Actions being grounded upon several Leases as his Title is several But it was Resolved That the Action was well brought in regard he had both Titles in him and the Action is brought upon the wrong because he did not sett out the Tithes Again in Debt for not setting forth of Tithes upon the Statute of 2 Ed. 6. The Case was Corn was growing upon the glebe-Glebe-Lands of the Vicar which was discharged of Tithes being in his own use It happened that the Vicar died before the Tithe was severed and his Executors did cut and carry away the Corn and he that had the Parsonage appropriate brought the Action The Counsel of the Defendant prayed the Opinion of the Court whether he might plead Nihil debet But the Court refused to deliver their Opinion in it because it hanged in Suit before them In the Case of Mountford against Sidley it was said That where Tithes are sett out the Parson hath a liberty for a convenient time to come and carry them away And this convenience of Time is triable by a Jury if he exceed this he shall be subject to an Action and then by Judgment of Law he shall be taken to be a Trespasser ab initio Otherwise it shall be of a License in Fact given by the Parson himself And it was holden by the Court if the Corn had continued over long his Remedy had been by Action upon the Case And as a Parson ought to have convenient time to carry away his Tithes so likewise he ought to have for that end free ingress egress and regress to through and from the Land where the Tithes are wherein if he meet with any obstruction he ought to see how he Sues and lays his Action for in a Case where a Parson Libelled for Tithes in the Ecclesiastical Court and set forth That the Tithes were set forth and that the Defendant did hinder him and stop him from carrying them away But because he did not Sue there upon the Statute of 2 Ed. 6. for he did not mention the Double value as he ought and it was Agreed by all the Justices he ought to have done nor mention the Statute as he ought also to have done a Prohibition in that Case was awarded The Grant of a Tithe for Life to begin at a day to come is not good Yelvert 131. If a man will lett a Lease of his Tithes the Lease must be by Deed and not by word only therefore if a Parson doth Demise his Rectory for years the Tithes will pass inclusive although the Lease be by word only but if the Parson Lease his Tithes alone they will not pass unless the same be by Deed or Writing Yet the Parson may Demise his Tithes to the Owner of the Land for a year by word only as hath been agreed by all the Justices but to a Stranger he cannot Demise them otherwise than by Deed And although Tithes will as aforesaid pass by Contract to the Owner of the Soil yet may the Parson sue the Owner for Tithes in kind in the Spiritual Court and as it hath been holden the Owner by reason of the Contract shall not have a Prohibition In which case the Ower of the Soil may sue the Parson upon the Contract in the Temporal Court and recover as much in Dammages but then in his Pleading he must not declare of a Verbal Contract but must set forth the same to have been made in Writing and so it hath been Adjudged And in the Lord Shandois Case it was holden by the Court That a Suggestion of an Agreement between him and the Parson in consideration of a certain Sum to be yearly paid to the Parson during their Joynt-Lives and his continuing Parson that his Messuage and Lands in the Parish of D. and the Tenants thereof should be discharged from the payment of Tithes thereof shewing that the said yearly Sum was paid accordingly and that notwithstanding the Defendant sued the Plaintiff being his Farmer for Tithes In this Case it was held That this was not a sufficient Surmize to maintain a Prohibition For an Agreement to be discharged from Tithes may be a year by word but to have such an Agreement for life or years cannot be without Deed Likewise in an Ejectione Firme brought of a Lease of Tithes the Plaintiff did not shew that the Lease was by Deed and because Tithes cannot pass without Deed after a Verdict found for the Plaintiff It was Ruled to be ill and Adjudged for the Defendant To conclude In the 19 El. B. R. it was debated whether Tithes were Jure divino or by the Constitution of men only The Judg. were all it seems of Opinion That they were due as well by the Constitution of Kings as by the Law of God And therewith doth Dr. Stu. 166. if the Qu. be de Quota parte For there it is held that the 60 part is due only by mans Law And the Opinion of Gerson the Divine is cited in his Treatise Entituled Regulae Morales where it is said Solutio Decimarum Sacerdotibus est jure Divino quatenus inde sustentur sed quoad hanc quam illam partem assignare aut in alios reditus commutare Positivi juris est And elsewhere Non vocatur portio Curatis Decima pars imo est
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
c. may have an Action of Trespass 36. In an Action upon the Case D. shewed he was seized of a Messuage and Land in P. to the same belonging and in the Parish of P. time whereof c. and yet is a Chappel in the North part of the Chancel called the Parsons Chancel and the Plaintiff and all those c. have used to sustain and repair the said Chancel and have used for him and his Family to sit in Seats of the said Chancel and to Bury there the persons dying in the said Messuage and that none other during all the said time c. without their License have used to sit there or to be buried there and that the Defendants Praemissorum non ignari malitiose impediverunt him to enter and sit in the said Seats The Defendant said That the Earl of N. was seized of the Honour of F. and the said Chappel was parcel of the said Honour and that the Defendants being Servants of the said Earl and resident within the said Honour did divers times in the time of Divine Service sit in the Seats of the said Chancel by the command of the said Earl upon which it was Demurred Exceptions were taken to the Declaration because he prescribes to have a Liberty appertaining to his House and doth not shew it is an Ancient House And 2 That the Allegation of the disturbance was ill being general without alleding a special Disturbance and how he was disturbed Resolved That when it is supposed he is seized in Fee of a Capital Messuage and time c. it is there included that it is an ancient Messuage and so might have such a priviledge And for the second it is sufficient to alledge a general Disturbance as is usual in the Case of a Fair or Market 37. D. was Indicted upon the Statute of 5 E. 6. for striking in Paul's Church-yard he pleaded that he was by the Queens Letters Patents created Garter King of Arms and demanded Judgment because he was not so named It was the opinion of the Court that because it was a parcel of his Dignity and not of his Office only and because the Patent is Creamus coronamus nomen imponimus de Garter Rex heraldorum that therefore in all Suits brought against him he ought to be named by this name and thereupon he was discharged of the Indictment And in Penhallo's Case who was Indicted upon the same Statute for drawing of Dagger in the Church of B. against J. S. and doth not say with intent to strike him for which cause the Judgment was quashed Likewise in Child's Case who was Indicted for striking in the Church-yard and it was apud generalem Sessionem Pacis tent apud Blandford and it was not said in Comitatu praedicto for which reason the party was discharged though the County was in the Margin 38. In Pym's Case before-mentioned Corven did Libel in the Ecclesiastical Court against Pym for a Seat in a Church in Devonshire And Pym by Serjeant Hutton moved for a Prohibition upon this Reason That himself is seized of a House in the said Parish and that he and all whose Estate he hath in the House have had a Seat in an Isle of the Church And it was Resolved by the Court That if a Lord of a Mannor or other person who hath his House and Land in the Parish time out of mind and had a Seat in an Isle of the same Church so that the Isle is proper to his Family and have maintained it at their charges That if the Bishop would dispossess him he shall have a Prohibition But for a Seat in the Body of a Church if a question ariseth it is to be decided by the Ordinary because the Freehold is to the Parson and is common to all the Inhabitants And it is to be presumed That the Ordinary who hath cure of Souls will take order in such cases according to right and conveniency and with this agrees 8 H. 7. 12. And the Chief Justice Damc Wick her Case 9 H. 4. 14. which was The Lady brought a Bill in B. R. against a Parson Quare tunicam unam vocatam A Coat Armor and Pennons with her Husband Sir Hugh Wick his Arms and a Sword in a Chappel where he was buried and the Parson claimed them as Oblations And it was there held That if one were to sit in the Chancel and hath there a place his Carpet Livery and Cushion the Parson cannot claim them as Oblations for that they were hanged there is honour of the decased The same reason of a Coat-Armour c. And the Cbief Justice said The Lady might have a good Action during her life in the case aforesaid because she caused the things to be set up there and after her death the Heir shall have his Action they being in the nature of Heir-Looms which belong to the Heir And with this agrees the Laws of other Nations Bartho Cassanae fo 13. Con. 29. Actio datur si aliquis Arma in aliquo loco posita deleat aut abrasit c. And in 21 Ed. 3. 48. in the Bishop of Carlisle's Case Note That in Easter-Term it was Resolved in the Star-Chamber in the case between Hussey and Katherine Leyton That if a man have a House in any Parish and that he and all those whose Estate he hath have used to have a certain Pew in the Church that if the Ordinary will displace him he shall have a Prohibition but where there is no such prescription the Ordinary will dispose of common and vulgar Seats 39. In the County of Dorset there was a Mother-Church and also a Chappel of Ease within the same Parish they of the Mother-Church did rate and tax them of the Chappel of Ease towards reparations of the Mother-Church for the which upon their refusal to pay the same being sued in the Ecclesiastical Court they prayed a Prohibition and for cause alledged That they themselves have used time out of mind c. to repair the Chappel at their own proper cost without having any Contribution at all from them of the Mother-Church and that they have been exempted from all charges and reparations of the Mother-Church and yet for their refusal to pay this Tax they were libelled against in the Ecclesiastical Court and a Sentence there passed against them they therefore prayed a Prohibition By the opinion of the whole Court a Prohibition lieth not in this case in regard that this Prescription is meerly Spiritual and therefore a Prohibition denied per Curiam 40. One was presented ex Officio in the Ecclesiastical Court for the not frequenting of his Parish-Church he there pleads That this was not his Parish-Church but that he had used to frequent another Parish Church and to resort unto that And because they in the Ecclesiastical Court would not receive his plea the Court was moved for a Prohibition for that by the Law in the
away yet it may limit and moderate the payment thereof Notwithstanding in some places and cases a Custome applied to a Countrey to pay no Tithe as in 40 Parishes for the Wild in Sussex is good but generally such a Custome is not good Likewise a Custome tending to the impoverishment of the Parson or Vicar is no good Custome Mich. 11 Jac. C. B. inter Jux and Sir Charles Candish Likewise a Custome to pay Tithes truly without view of the Parson is not good Also a Custome alledged to pay the Tenth Sheaf of Wheat for the Tithe of all manner of Corn and Grain is not a good Custome dict Cas Jux 38 Eliz. C. B. Adjudg But a Custome to pay Tithe-Wool at Lammas-day though due at Shearing is good But such is the strength of a Custome that it cannot be discharged by a verbal Agreement for Money Custome may make that Tithable which of it self is not Tithable and may alter Tithes in any other thing which will be a Modus Decimandi sufficient to bind the Parson and his Successors Custome is properly Triable at the Common Law upon a Prohibition but a Consultation may be granted on a Prohibition granted on a Surmize not proved within Six months as was Adjudged Hill 6 Jac. C. B. in Cas inter Sharp and Sharp Noâ Rep. Custome and Prescription both ought to be without interruption Constant and beyond the memory of man Perpetual that is no man in being remembers to the contrary for it seems if any man or any Authentick Record or other sufficient Evidence can prove it was otherwise at any time since the first of R. 1. viz. 1189. the Custome or Prescription at Common Law would not hold Albeit by the Statute of 2 Ed. 6. c. 13. Tithes are to be yielded and paid as of right they had been within 40 years next before which time somewhat agrees with the Ecclesiastical Computation And by the Statute of 27 H. 8. c. 20. they are to be paid according to the Ecclesiastical Laws and Ordinances after the laudable Usages and Customes of the Parish which was also after confirmed as to the lawful Usage and Custome by the Stat. of 32 H. 8. 7. D DEcimae Majores such as Corn Hay c. belong to the Parson Decimae Minores or Minutae as Saffron Herbs c do belong to the Vicar Pasch 38 Eliz. B. R. Beding and Feak's Case Mich. 1 Car. C. B. Sir Rich. Vdal and the Vicar of Alton's Case Deer though they are Ferae naturae yet they may be given for Tithes and although they are not Tithable of themselves yet they may be given for a Modus Decimandi Hill 6 Jac. C. B. the Vicar of Clare's Case Sharp and Sharp's Case Noy 148. acc Deprivation A Parson may after his Deprivation sue in the Ecclesiastical Court for subtraction of Tithes which were due to him before his Deprivation and a Prohibition will not lie in the Case Adjudged Hill 13 Jac. Cole's Case Discharge of Tithes may be either by Custome Prescription Composition Statute Unity of Possession or by Priviledge as to Religious Orders now not of use There may be also a Discharge of Tithes as against the Vicar by the payment thereof unto the Parson And it may be by a Real Composition but it cannot be by a Verbal Agreement for money And if there be a Discharge not of the Tithes themselves but from the exact payment thereof by a Modus Decimandi or Annual recompence in satisfaction thereof it must be by Custome or Prescription By the Common Law a Lay-man although he were capable of a Discharge of Tithes by Grant of the Parson Patron and Ordinary or by Composition yet at that Law none had a capacity to take or receive them save only Ecclesiastical persons or a Mixt person as the King And by the same Law if a Bishop were absolutely Discharged of Tithes by Prescription whilst the Lands were in his hands his Demising thereof to a Lay-man could not make the same chargeable therewith For in Wright's Case where the Bishop of W. was seized of a Mannor in right of his Bishoprick Prescribed that he and all his Predecessors had held the said Mannor and the Demesns thereof time out of mind for him his Farmers Tenants for years or at will Discharged and acquitted from payment of Tithes for these Lands the Bishop made a Lease for years of parcel of the Demesns The Farmer of the Rectory Libelled in the Ecclesiast Court against the Lessee for Tithes all which matter he pleaded in the Ecclesiastical Court and the Judge there refused to allow of the Allegation in Discharge of the Tithes It was held in this case 1 That if the Lands of the Bishop were absolutely Discharged in his hands by Prescription the Demising of it to a Lay-man could not make it chargeable with Tithes 2 That a Spiritual person may Prescribe in non Decimando 3 That the Refusal by the Ecclesiastical Judge to allow the Allegation in Discharge of Tithes is not Traversable In like manner the King being seised of Lands parcel of the Forest of B. in Fee in right of the Crown Discharged of the payment of Tithes granted the Lands to the Earl of Hertford in Fee and it was held that the Patentee should be Discharged of payment of Tithes and a Prohibition was granted in that Case Yet in another Case where it was surmized for a Prohibition that the Prior of B. was seised of Lands parcel of his Priory and held them till the dissolution Discharged of Tithes for his Farmers and Tenents for life or years that the Priory was dissolved 27 H. 8. that the King was seised of the Lands and shews the Statutes of 32 H. 8. and 2 Ed. 6. and that the King died seised of the Lands that by mean Conveyances it was conveyed to J. S. and that the Plaintiff being his Tenant for years was sued by the Parson of B. for the Tithes of these Lands It was Resolved by the Court That the Lands which came to the Crown by the Statute of 27 H. 8. should not be Discharged from the payment of Tithes but should pay the same although the Lands in the hands of the said Religious Persons or Houses were Discharged from the payment thereof for that the Priviledges were Personal Priviledges which were extinguish'd by the said Statute of Dissolutions and there are not any words in the said Statute of 27 H. 8. to save the Priviledges and the Statute of 31 H. 8. being a subsequent Law had not respect to these Priviledges Likewise where a Parson by Deed Indented leased his Glebe cum omnibus proficuis Commoditatibus It was notwithstanding Adjudged that the Lessee should be charged with the payment of Tithes And in Branches Case it was Resolved That an Union of Copyhold Lands and of the Parsonage in the hands of the Parson as Parson Imparsonee
the hands of some viz. the Priors and afterwards Dr. Pope pulled off the Addition which he had made to the former Libel off from the second Libel And the whole Court said That if he proceeded upon that Addition that Sentence shall be given for Tithes upon any Prescription since the Statute that then they would grant a Prohibition Mich. 18. Jac. B. R. Dame Denton's Case and the Count of Clanrickard Roll. Rep. par 2. The Order of the Praemonstracenses were Discharged of all Tithes of their Land the which Manibus aut sumptibus excolebant propriis All the Chief Monks paid Tithe as well as other men till Pope Paschal at the Council of Mentz Ordained that they should not pay Tithes de Laboribus suis and that continued as a general Discharge till the time of H. 2. when Pope Adrian restrained it to three Orders viz. the Cistertians the Templers and the Hospitallers And the Discharge which the Order of the Praemonstracenses had was made by Pope Innocent the Third by his Bull. And after in the Council of Lateran ne Ecclesia nimium gravaretur it was provided That the Priviledge of the Templers should not extend to their Farmers Vid. Case Dickenson and Greenhall Mich. 22. Jac. B. R. Roll. Rep. 2. part In Hurrey's Case against Boyer in a Prohibition to the Ecclesiastical Court for stay of a Suit there for Tithes of Lands which were the possessions of the Hospital of St. John of Jerusalem upon Suggestion that the Prior of the said Dissolved House of St. Johns had this Priviledge from Rome which was by divers Councils and Canons viz. That the Lands of their Predecessors which by their own hands and costs they did Till they were not obliged to pay Tithes In this Case it was agreed That this Hospital was not Dissolved by the Statute of 31 H. 8. c. 18. of Dissolutions but by a Special Act made 32 H. 8. c. 24. by which their Corporation and Order was Dissolved and their Possessions given to the King with all the Priviledges and Immunities thereto belonging which the King granted to the Plaintiff in the Prohibition and whether he should hold them Discharged of the payment of Tithes was the question Harris Serjeant urged That this Immunity was annexed to the Corporation of the Prior and his Brethren of the said Hospital and doth not come to the King it being determined by the Dissolution of the said Hospital and so Adjudged in B. R. against the Book of 10 Eliz. Dyer 277. 60. 2. Coke the Bishop of Winchester's Case 14. B. and the Archbishop of Canterbury's Case 47. B. and 18 Eliz. Dyer 349. 16. Nichols Serjeant to the contrary and cited a Canon made by the Council of Mag. and another made by Innocent 3. An. 1215. and divers others and also the Statute of 2 H. 4. 4. and 7 H. 4. 6. and if Land be Discharged of payment of Tithes by Prescription of not Tithing and this Land come to the King the Priviledge remains and these Lands are given to the King in the same plight and case as they were in the Hospitallers and affirmed the Book of 10 Eliz. Dyer 277. 60. to be good Law and that the aforementioned Cases of the Archbishop of Canterbury and the Bishop of Winchester and the words of the Statute of 32 H. 8. 24. gives the King not only the Mannors Houses c. but also all Liberties Franchises Priviledges c. In this Case it was Confessed that it came by reason of the Order of the Cestertians as appears by the Canon And Hutton Serjeant arguing for the Defendant said that it appears by the Statute of 2 H. 4. 4. that it is Personal and that it differs from the Lands which came to the King by the Statute of 31 H. 8. For by that the King is Discharged of payment of Tithes and so are his Patentees but that this Priviledge is Personal and if so then it is determined by dissolution of the other and a personal Priviledge in case of Tithe is not transferred to the King Barker Serjeant for the Plaintiff in this case said That it was Ordained by Edgar King of this Realm that Tithes shall be given to the Mother-Church Also Edmund Ethelstone William the Conqueror and the Council of Magans specially provided that Tithes should be paid but did not appoint when they should be paid But the first Law which appointed the quantity was made in the time of Ed. 1. and this Ordained when they ought to pay the Tenth with the fear of God And before the Council of Lateran every one might pay his Tithes to what Parson he would and then were paid to Monasteries as Oblations If a Parson in one Parish claim Tithes in another as portion of Tithes due by Prescription to his Rectory he ought to shew the place especially viz. the place where the Tithes lie In the Seventeenth year of Ed. 2. the Order of the Templers was dissolved and their Possessions annexed to St. John of Jerusalem and they did not claim by any Bull of the Pope nor other Spiritual Canon but by Prescription which is Priviledge and private Common Law as appears by the Statute of Westm 2. cap. 74. And Menham's Canon in the time of Ed. 1. saith Let the Custome be observed And another Canon That Custome of not Tithing or of the manner of Tithing if they paid less than the Tenth part shall be observed Vid. Panormitan Cas Hurrey vers Boyer Brownl Rep. dict Cas Pasch 9 Jac. Rot. 1511. C. B. Brownl Rep. par 2. In the Bishop of Winchester's Case 38 Eliz. it was Resolved That at the Common Law none had capacity to take Tithes but Spiritual persons or Persona mixta as the King and regularly no meer Lay-man was capable of them except in special Cases for he could not Sue for them in the Court Christian and regularly a Lay-man had no remedy for them until the 32 H. 8. A Lay-man may be Discharged of Tithes at the Common Law by Grant or by Composition but not by Prescription for in the Books of the Common Law it is commonly said That a Law-man may Prescribe In Modo Decimandi but not In non Decimando And the reason is because he is not except in Special Cases capable of Tithes at the Common Law before the Statute of 32 H. 8. cap. 7. And therefore without Special matter shewed it shall not be intended that he hath any lawful Discharge and in favour of the Holy Church although it may have a lawful Commencement the Law will not suffer this Prescription In non Decimando to put it to the Trial of Lay-men A Spiritual person that was capable of Tithes at the Common Law in Pernancy may Prescribe to be Discharged of Tithes generally or to have a portion of Tithes in the Land of another Before the Council of Lateran every man might give his Tithes to any Spiritual person that he would and if the Lands of
17. is to that purpose 11. In former times many Bishops had their Suffragans who were also Consecrated as other Bishops were These in the absence of the Bishops upon Embassies or in multiplicity of business did supply their places in matter of Orders but not in Jurisdiction These were chiefly for the ease of the Bishops in the multiplicity of their Affairs ordained in the Primitive times called Chorepiscopi Suffragan or Subsidiary Bishops or Bishops Suffragans and were Titular Bishops Consecrated by the Archbishop of the Province and to execute such Power and Authority and receive such profits as were limited in their Commissions by the Bishops or Diocosans whose Suffragans they were What Towns or Places to be the Sees of Bishops Suffragans and how many to a Diocess and in what Diocesses appears by an Act of Parliament made in the Reign of King H. 8. Such Suffragan Bishops are made in case the Archbishop or some other Bishop desire the same In which case the Bishop presents Two able persons for any place allowed by the said Act of Parliament whereof his Majesty doth chuse one but at present there are no Suffragan Bishops in England They were no other than the Chorepiscopi of the Primitive Times Subsidiary Bishops ordained for easing the Diocesan of some part of his burthen as aforesaid by means whereof they were enabled to perform such Offices belonging to that Sacred Function not limited to time and place by the ancient Canons by which a Bishop was restrained in some certain Acts of Jurisdiction to his proper Diocess Of these there were twenty six in the Realm of England distinguished by the Names of such Principal Towns as were appointed for their Title and Denomination The Names and Number whereof together with the Jurisdiction and preheminences proportioned to them the Reader may peruse in the Act of Parliament made An. 26 H. 8. 12. According to the Temporal Laws of this Land if a Bishop grant Letters of Institution under any other Seal than his Seal of Office and albeit it be out of his Diocess yet it is good For in Cort's Case against the Bishop of St. Davids and others where the Plaintiff offered in evidence Letters of Institution which appeared to be sealed with the Seal of the Bishop of London because the Bishop of St. Davids had not his Seal of Office there and which Letters were made also out of the Diocess It was held That they were good enough albeit they were sealed with another Seal and made out of the Diocess for that the Seal is not material it being an Act made of the Institution And the writing and sealing is but a Testimonial thereof which may be under any Seal or in any place But of that point they would advise 13. A Bishop if he celebrate Divine Service in any Church of his Diocess may require the Offerings of that day He may sequester if the King present not and 12 H. 8. 8. by Pollard he must see the Cure served if the person fail at his own Costs He may commit Administration where Executors being called refuse to prove the Will He hath power of distribution and disposing of Seats and charges of Repairs of the Churches within his Diocess He may award his Jure Patronatus where a Church is Litigious between an Usurper and the other but if he will chuse the Clerk of either at his peril he ought at his peril to receive him that hath Right by the Statute He may License Physicians Chirurgions Schoolmasters and Midwives He may Collate by Lapse He may take competent time to examine the sufficiency and fitness of a Clerk He may give convenient time to persons interested to take notice of Avoidances He is discharged against the true Patron and quit of Disturbance to whom it cannot be imputed if he receive that Clerk that is in pursuance of a Verdict after Inquest in a Jure Patronatus He may have Six Chaplains and every Archbishop may have Eight Chaplains He may unite and consolidate small Parishes and assist the Civil Magistrate in execution of some Statutes concerning Ecclesiastical Affairs And by the Statute of 1 Eliz. cap. 2. any Bishop may at his pleasure joyn and associate himself to the Justices of Oyer and Terminer or to the Justices of Assize at the open and general Sessions to be holden at any place within his Diocess in Causes of the Church And the Statute made 17 Car. 1. c. 27. for the disinabling of persons in Holy Orders to exercise Temporal Jurisdiction or Authority is Repealed by the Statute of 13 Car. 2. cap. 2. whereby they are now enabled to exercise such Temporal Jurisdiction as formerly and is commonly styled the Ordinary of that Diocess where he doth exercise his Episcopal Authority and Jurisdiction In Parliament Bishops as Barons may be present and Vote at the Trial and Arraignment of a Peer only before Sentence of death or loss of Member be pronounced that they may have no hand in blood in any kind they have by Canon Law the Priviledge and Injunction to absent themselves and by Common Law to make Proxies to vote for them 14. ORDINARY according to the acceptation of the Common Law with us is usually taken for him that hath Ordinary Jurisdiction in Causes Ecclesiastical immediate to the King He is in Common understanding the Bishop of the Diocess who is the Supervisor and for the most part Visitor of all his Churches within his Diocess and hath Ordinary Jurisdiction in all the Causes aforesaid for the doing of Justice within his Diocess in jure proprio non per deputationem and therefore it is his care to see that the Church be provided of an able Curate Habet enim Curam Curarum and may execute the Laws of the Church by Ecclesiastical Censures and to him alone are made all Presentations to Churches vacant within his Diocess Ordinarius habet locum principaliter in Episcopo aliis Superioribus qui soli sunt Vniversales in suis Jurisdictionibus sed sunt sub eo alii Ordinarii hi videlicet quibus Competit Jurisdictio Ordinaria de jure privilegio vel consuetudine Lindw cap. Exterior tit de Constitutionib 15. The Jurisdiction of the Ordinary or Bishop as to the Examination of the Clerk or as to the Admission or Institution of him into a Benefice is not Local but it follows the person of the Ordinary or Bishop wheresoever he is And therefore if a Clerk be presented to the Bishop of Norwich to a Church which is void within the Diocess of Norwich who is then in London or if it be to a Bishop of Ireland who is then in England and in London the Ordinary may examine the Clerk or give him Admission or Institution in London And so it was adjudged 16. The Ordinary is not obliged upon a Vacancy to receive the Clerk of him that comes first for as he
Fee-simple may pass to them without the word Successors because in Construction of Law such Body Politick is said never to die This must be understood only in reference to their taking of the thing granted in their Politick not Natural Capacity 11. One Bishop may possibly have two Chapters and that by Union or Consolidation as in the Bishop of Waterford's Case who had the Bishoprick of Lismore and the Chapter thereof united to that of Waterford In which Case although the Chapter of Lismore only Confirmed the Grants of Lands belonging to Lismore and the Chapter of Waterford only confirmed the Grants of Lands belonging to the Bishoprick of Waterford yet because the Union there was not extant the Judges held the Confirmation in manner aforesaid to be good but otherwise all the Judges held that both Chapters ought to have Confirmed For it seems if a Bishop hath two Chapters both must Confirm his Leases 12. A Parsonage in the Diocess of W. is annexed to a Prebend in S. the Prebend makes a Lease for years which is Confirmed by the Bishop and Dean and Chapter of S. It was held by the Court to be good without the Confirmation of the Bishop of W. in whose Diocess it is In Eyre's Case it was resolved That Chapters are not of a capacity to take by Purchase or Gift without the Dean who is their Head And in the Case of Eaton-Colledge where a Lease was made by the Dean and Chapter of the Colledge of Eaton whereas they were incorporated by the Name of the Dean and Chapter of the Colledge of St. Maries of Eaton Resolved that the Lease was void for the Misnosiner Yet whereas the Dean and Canons of Windsor were Incorporated by Act of Parliament by the Name of the Dean and Canons of the Kings Free-Chappel of his Castle of Windsor and they made a Lease by the Name of the Dean and Canons of the Kings Majestie 's Free-Chappel of the Castle of Windsor in the County of Berks Resolved the Lease was good For although the King in the Act of Parliament calls it his Castle yet when another speaks of it it is more apt to call it the Castle and therefore such variance shall not avoid the Lease Likewise whereas Christs-Church in Oxon is incorporated by the Name of Dean and Chapter Ecclesiae Cathedralis Christi de Oxon and they made a Lease by the Name of Dean and Chapter Ecclesiae Cathedralis Christi in Academia de Oxon and the Liberties de Academia did extend further than the Liberties of the City yet it was adjudged a good Lease because the substance of the Corporation was inserted in the words of the Lease CHAP. VIII Of Archdeacons 1. What an Archdeacon is his Office and Jurisdiction 2. The several kinds of Archdeaconries and how many in England 3. Whence the Archdeacons power is derived and whether a Quare Impedit doth lie of it or not 4. In what case Action lies against an Archdeacon for refusing to give Induction to a Clerk Instituted by the Bishop 5. Archdeaconry not comprized under the notion of a Benefice with Cure of Souls 6. Process of Quorum Nomina prohibited by the Canon to be issued by any Archdeacon 7. How often an Archdeacon may have his Visitation and what his Office or Power therein is 8. How a person ought to be qualified that may be an Archdeacon It is an Ecclesiastical Dignity 9. Cardinal Otho's Constitution touching the Archdeacons government in his Visitations 10. How Archdeacons are distinguished at the Canon Law 11. Conformity thereto in the practice of the Common Law 12. A Case at Common Law touching a Lease for years of a Glebe made by an Archdeacon 13. The same Case somewhat otherwise reported 14 Whether a Quare Impedit lies of an Archdeaconry 1. ARCHDEACON from archos Princeps or Chief and Diaconos Deacon that is the first or chief of the Deacons Sum. Host de Offic. Archid. c. 1. de Scrut in Ord. fac being according to the Canon Law such as hath obtained a Dignity in a Cathedral Church to have the Priority among the Deacons and first in Jurisdiction next after the Bishop Sum. Host ibid. For as of Common Right all Ecclesiastical matters within the Diocess appertain to the cognizance of the Bishop so under him to the Archdeacon excepting only such things as by Law are specially prohibited And therefore is said to be dignified with this Title for that in many things he doth supply the room of the Bishop to whom he is in precedency to others subservient and unto whom his service chiefly relates Every Bishop be it Archbishop or other hath under him an Archdeacon for the better discharge of his Cure He hath Jurisdiction of Common right which may vary according to Circumstances and the Custome of the place and therefore in some cases it is Jurisdictio Ordinaria in others it is Delegata And although regularly as such he doth not exercise any Jurisdiction within the Church it self yet it cannot be denied but that an Archdeaconry is an Ecclesiastical Dignity Fran. de Aret. in Concil 23. His Office and Jurisdiction by the Canon Law is of a far larger extent than is now practicable with us otherwise we should not there find him so frequently styled Oculus Episcopi for that he is by the very Law the Bishops Vicar in several respects and therefore may where the Bishop himself conveniently cannot keep the Triennial Visitations or not oftner than once a year save where emergent occasions do require it oftner He hath also under the Bishop the power of Examination of Clerks to be Ordained as also of Institution and Induction likewise of Excommunication Injunction of Penance Suspension Correction Dispensations of hearing determining and reconciling of Differences among the Clergy as also of enquiring into inspecting and reforming Abuses and Irregularities of the Clergy with a power over the Sub-deacons and a charge of the Parochial Churches within the Diocess In a word according to the practice of and the latitude given by the Canon Law to supply the Bishops room and as the words of that Law are in omnibus vicem Episcopi gerere Synt. jur l. 15. cap. 20. de Archidiacono 2. The Diocesses within this Realm of England are divided into several Archdeaconries they being more or less in a Diocess according to the extent thereof respectively and in all amounting to the number of Threescore And they divided again into Deanaries which also are subdivided into Parishes Towns and Hamlets Of these Archdeaconries some are by Prescription some by Law and some by Covenant Which difference hath this Operation in Law That the Jurisdiction of an Archdeaconry by Prescription or de jure is exclusive to the Jurisdiction of the Bishop insomuch that a Prohibition lies for such Archdeacon against the Bishop if he intermeddle Juridically with any matters or things within such Archdeaconries
in question hath been of a Mixt nature in reference to Jurisdictions 29. Certain Reasons for denial of Prohibitions to the Ecclesiastical Court in some Cases where they might lie 30. Bounds of Parishes in reference to the Tithes thereof whether Tryable by the Law of the Land or by the Law of the Church 31. Where the Question is more touching the Right of Tithes than the Bounds of the Parish the Ecclesiastical Court hath had the cognizance 32. The Ecclesiastical Court hath cognizance of Administrators Accounts and no Prohibition lies 33. Modus Decimandi sued for by a Parson in the Eccllesiastical Court no Prohibition Nor if he there sues for the Tithe of things not Titheable 34. In what cases a Custome as also a Rent may be sued for in the Ecclesiastical Court 35. If Question be touching the Grant of a Registers Office in a Bishop's Court or touching the Tenth after severance from the Nine parts In what Court whether Temporal or Ecclesiastical it shall be tryed 36. A Woman exercising the Profession of a Midwife without License is therefore sued in the Ecclesiastical Court whether a Prohibition lies in that case 37. The Bounds of a Parish also whether such a Church be Parochial or only a Chappel of Ease In what Court this is to be tryed 38. A Prohibition granted upon the disallowance of an Executors Plea of having Assets only to pay Debts in opposition to a Legacy sued for in the Ecclesiastical Court 39. A Prohibition awarded upon a Suit in the Ecclesiastical Court for an account of the Profits of a Benefice Otherwise in case the Profits were taken during the time of a Sequestration 40. A Prohibition granted to a Party to stay proceedings in his own Suit and commenced by himself 41. Pensions are sueable only in the Ecclesiastical Court 42. The right of Tithes coming in question between the Parson and the Vicar is a Suit properly belonging to the Ecclesiastical Court 43. Whether and how far and in what manner the Ecclesiastical Court may take cognizance of a Modus Decimandi at large debated 44. When and how the Canon Law was introduced into this Realm 1. BEfore the time of King William the Conqueror all matters as well Spiritual as Temporal were determined in the Hundred-Courts where was wont to sit one Bishop and one Temporal Judge called Aldermanus the one for matters of Spiritual the other of Temporal cognizance But that was altered by King William and it seems by Parliament for it was by the assent of the Bishops Abbots and all the chief persons of the Realm for he Ordained That the Bishop or Archdeacon should not hold Plea of the Episcopal Laws quae ad Regimen animarum pertinent in the Hundred but by themselves and there administer Justice not according to the Law of the Hundred but according to the Episcopal Laws and Canons as appears by King William's Charter Irrot. 2. R. 2. pro Decano Capitulo Eccles Lincolne Jan. Angl. 76 77. The Principal Courts Ecclesiastical whereof some are now out of use were and are the Convocation Court the High Commission Court the high Court of Arches the Prerogative Court of Canterbury the Court of Delegates the Court of Audience the Court of Peculiars the Court of Faculties besides the Bishops Consistories the Archdeacons Courts and the like anciently called Halimots or holy Courts And the Saxon Kings long before William the Conqueror made several Laws for the Government of the Church Among others St. Edward begins his Laws with this Protestation that it is his Princely charge Vt Populum Domini super omnia Sanctam Ecclesiam regat gubernet And King Edgar in his Oration to his English Clergy Ego saith he Constantini vos Petri gladium habetis jungamus dextras gladium gladio Copulemus ut ejiciantur extra castra Leprosi purgetur Sanctuarium Domini But upon the Conquest made by the Normans the Pope took the opportunity to usurp upon the Liberties of the Crown of England for the Conqueror came in with the Popes Banner and under it won the Battel Whereupon the Pope sent two Legates into England with whom the Conqueror called a Synod deposed Stigand Archbishop of Canterbury because he had not purchased his Pall in the Court of Rome and displaced many Bishops and Abbots to make room for his Normans Among the rest the King having earnestly moved Wolstan Bishop of Worcester being then very aged to give up his Staff was Answered by him That he would give up his Staff only to him of whom he first received the same And so the old Bishop went to St. Edward's Tomb and there offered up his Staff and Ring with these words viz. Of Thee O holy Edward I received my Staff and my Ring and to thee I do now surrender the same again Which proves that before the Norman Conquest the Kings of England invested their Bishops per Annulum Baculum By this admission of the Pope's Legates was the first step or entry made into his usurped Jurisdiction in England yet no Decrees passed or were put in execution touching matters Ecclesiastical without the King 's Royal Assent nor would he submit himself in point of Fealty to the Pope as appears by his Epistle to Gregory the Seventh Vid. Da. Rep. Case of Praemunire fo 89. yet in his next Successors time in the time of William Rufus the Pope by Anselme Archbishop of Canterbury attempted to draw Appeals to Rome but prevailed not Upon this occasion it was that the King told Anselme That none of his Bishops ought to be subject to the Pope but that the Pope himself ought to be subject to the Emperour and that the King of England had the same absolute Liberties in his Dominions as the Emperour had in the Empire Yet in the time of the next King H. 1. the Pope usurped the Patronage and Donation of Bishopricks and all other Benefices Ecclesiastical at which time Anselme told the King That the Patronage and Investure of Bishopricks was not his Right because Pope Urban had lately made a Decree That no Lay-person should give any Ecclesiastical Benefice And after this in a Synod held at London An. 1107. a Decree was made Cui annuit Rex Henricus says Matth. Paris that from thenceforth Nunquam per donationem Baculi Pastoralis vel Annuli quisquam de Episcopatu vel Abbathia per Regem vel quamlibet Laicam manum investiretur in Anglia Hereupon the Pope granted That the Archbishop of Canterbury for the time being should be for ever Legatus Natus And Anselme for the honour of his See obtained That the Archbishop of Canterbury should in all general Councils sit at the Pope's foot tanquam alterius Orbis Papa Yet after Anselme's death this same King gave the Archbishoprick of Canterbury to Rodolph Bishop of London says Matth. Paris Et illum per Annulum Pastoralem Baculum investivit as before he had invested William Gifford in
exempts the Bishop from the Jurisdiction of his Metropolitan And for that the Cardinal fell into a Praemunire for which he purchased his Pardon which is sound among the Charters 4 H. 6. in Archivis Turr Lond. 6 7 Eliz. Dyer 233. a. Jo. Packhurst being elected to the Bishoprick of Norwich before that he was created Bishop obtained a Faculty or Dispensation from the Archbishop of Canterbury by force of the Statute of Faculties to retain a Parsonage which he had before in Commendam for Three years viz. Ã Festo Michaelis An. Dom. 1560. usque ad idem Festum in An. 1563. Before the first Feast of St. Michael Packhurst is created Bishop and afterwards he resigned the Benefice And the Question was whether that Benefice became void by the resignation of Packhurst or by his promotion to the Bishoprick And it was adjudged That the Church became void by his Resignation Which proves That by virtue of the said Faculty or Dispensation he continued Parson until he had Resign'd Vid. N. Br. 36. h. If a Parson who hath a Faculty or Dispensation to hold his Rectory be created a Bishop and after the Patron present another Incumbent who is Instituted and Inducted now the Bishop shall have a Spoliation against that Incumbent which proves that his real possession in the Parsonage always continued by virtue of the said Faculty or Dispensation And in this Case of a Commendam in Sir Joh. Davis Reports this difference is put between a Faculty to take a Benefice and a Faculty to retain a Benefice viz. That a Faculty granted to one who is not Incumbent to Take a void Benefice is void And a Faculty to one who is Incumbent of a Benefice to Retain the same Benefice is good By virtue of these Faculties Dispensations and Provisions from the Pope Edmond the Monk of Bury who was a Minister in the Court of King Ed. 3. had many Benefices as appears in the foresaid Case of the Bishop of St. Davids 11 H. 4. And Hankford said in the same Case fo 191. a. That by virtue of such Faculty one and the same person had been Abbot of Glastenbury and Bishop also of another Church simul semel and had the Possessions and Dignity of both at the same time Likewise Hen. Chichley who was afterwards Archbishop of Canterbury being a Prebend in the Cathedral Church of Sarum was elected Bishop of St. Davids and before his Consecration the Pope reciting by his Bull that he was elected Bishop of St. Davids granted him a Faculty and power to hold and enjoy all his other Benefices till the Pope should otherwise order c. Vid. Nov. Decis Rot. 331. And that these Faculties or Dispensations to hold Benefices in Commendam were granted in the Court of Rome in the time of King H. 5. appears in Lindw de Praeb c. Audistis ver Dispensatione And although in case of Hen. Beauford aforesaid it was held That the Dispensation came too late it being granted after the Bishop was created Cardinal yet afterwards in the time of King H. 8. Cardinal Wolsey having before he was created Cardinal obtained a Bull from the Pope to retain the Archbishoprick of York as perpetual Administrator and the Abbey of St. Albans in perpetuam Commendam he held both during his life by virtue of the said Faculty or Dispensation Vid. 27 H. 8. 15. b. By these Presidents and Authorities it is evident That before the making of the foresaid Statute of Faculties such Dispensations were had and obtained at the Court of Rome to hold in Commendam Ecclesiastical Benefices in England But the Truth is as in the foresaid Case de Commenda Davis Rep. such Faculties or Dispensations granted by the Pope touching Ecclesiastical Benefices in England were ever contrary to the Law of the Realm for it was a meer usurpation on the Crown of England before the Statutes made against Provisors And these Statutes were made in declaration of the Common Law in that point 12 Ed. 2. Fitz. Qua. Imp. 169. 19 Ed. 2. Eitz Qua non admisit 7. 15 Ed. 3. Fitz. Qua. Imp. 160. 21 Ed. 3. 40. 11 H. 4. 230. a. It is also meet to be known That long before King H. 8. the Statute of 16 R. 2. and divers other Laws against Provisors and Appeals to Rome and the Popes Usurpation upon the Rights of the Crown of England were made well-nigh as severe as any since The first encroachment of the Bishop of Rome upon the Liberties of the Crown of England was made in the time time of King William the Conqueror For before that time the Pope's Writ did not run in England his Bulls of Excommunication and Provision came not thither nor were any Citations or Appeals made from thence to the Court of Rome Eleutherius the Pope within less than two hundred years after Christ writes to Lucius the Brittish King and calls him God's Vicar within his Kingdom Pelagius the Monk of Bangor about An. 400. being cited to Rome refused to appear upon the Pope's Citation affirming That Britain was neither within his Diocess nor his Province And when about the year 600 Augustine the Monk was sent by Gregory the Great into England to Convert the Saxons the Brittish Bishops then in Wales regarded neither his Commission nor his Doctrine as not owing any duty to nor having any dependence on the Court of Rome but still retained their Ceremonies and Traditions which they received from the East-Church upon the first plantation of the Faith in that Island And though Ina the Saxon King gave the Peter-pence to the Pope partly as Alms and partly in recompence of a House erected in Rome for English Pilgrims yet certain it is that Alfred Aethelstane Edgar Edmond Cauutus and Edward the Confessor and other Kings of the Saxon Race gave all the Bishopricks in England per Annulum Baculum 9. In the Case of Evans against Askwith it was agreed That the nature of a Dispensation is for to derogate and make void a Statute Canon or Constitution as to that which it prohibites as to the party and it is as an Exception as to him out of the Statute or Constitution It is said that a Dispensation is Provida Relaxatio mali prohibiti necessitate vel utilitate pensata And in the same Case it was also Resolved by all the Judges That the King hath power to Dispence with Statutes and Canons in force within this Realm By the very Common Law of right it was in the King for the Canons are the Ecclesiastical Laws of the Land and do not bind except they are received in the Realm as appears by the Statute of 25 H. 8. c. 21. And by the Statute of Merton touching one born before Marriage as by the Canon yet at Common Law he is Legitimate And 10 H. 7. 12. it is said That the King may Dispence with one to hold Two Benefices and it seems the Pope
because he did not find them meat and drink they sued him in the Ecclesiastical Court and a Prohibition was awarded because the Custome was a custome against the Law 24. In Babington's Case it was Resolved That if one be sued in the Ecclesiastical Court ex Officio or by Libel and he demand the Copy of the Libel which is denied That a Prohibition lieth in such case Vid. Stat. 2 H. 4. 25. In a Prohibition upon a Libel in the Ecclesiastical Court where the Suit was for Tithe-Apples in discharge of which he there pleaded an Award which was That he was to pay so much for the Tithe pleads there the Arbitrement the which plea they refused supposing this to be void upon this a Prohibition prayed Coke We will not grant a Prohibition in this case So in a Suit there for a Legacy if payment of the same be there pleaded which is not sufficient the payment is Triable there by 1 R. 3. fol. 4. When the Original begins in the Ecclesiastical Court although that afterwards a matter happens in Issue which is Triable at the Common Law yet this shall be tried there by the Ecclesiastical Law As if one do sue there for a Horse to him devised the Defendant there pleads that the Devisor did give this Horse unto him in his life time This is Triable by our Law yet this shall be tried there by their Law In the same manner it is where the Original doth begin here the same shall be tried here by our Law as in a Quare Impedit able or not able if it were otherwise they should there try nothing This is belonging to them But if they will there draw the matter ad aliud examen as upon proof of a Deed they judge otherwise than we do As in case of a Lease for years to be made they hold the same to be Traditione or void And so a Grant of Goods to be delivered or not good If they will judge in Common Law-matters otherwise than we do there in such case a Prohibition lies That which we call Orders they amongst them do call Acts The Court all clear of Opinion That this plea of the Award there pleaded and by them refused no ground for a Prohibition and so by the Rule of the Court a Prohibition was denied And in Dicke's Case against Browne a Prohibition was denied and a Consultation granted because the Ecclesiastical Court as was then admitted having cognizance of the Principal hath cause also there to determine of the Accessory 26. If a Parson sue upon the Stat. of 2 Ed. 6. in the Ecclesiastical Court for the double value for not setting forth the Tithes and the Defendant surmize That he did set them forth and that they would not there allow or admit the proof thereof by one Witness no Prohibition lies for that because they have the cognizance of the matter In this case the Prohibition was denied per Curiam 27. If the Bounds of a Village in a Parish come in question in the Ecclesiastical Court in a Suit between the Parson Impropriate and the Vicar of the same Parish as if the Vicar claim all the Tithes within the Village of D. within the Parish and the Parson all the Tithes in the residue of the Parish and the question between them is Whether certain Lands whereof the Vicar claims the Tithe be within the Village of D. or not yet inasmuch as it is between Spiritual persons viz. between the Parson and the Vicar although the Parson be a Lay-man and the Parsonage appropriate a Lay-see yet it shall be tried in the Ecclesiastical Court and no Prohibition be granted And in this case the Prohibition was denied 28. Where Suit hath been in the Ecclesiastical Court for something Spiritual mixt with other matter Triable at Common Law In such case a Prohibition hath been granted as to the matter Triable by the Common Law and not as to the rest if they may be severed As if a Suit be in the Ecclesiastical Court to avoid the Institution of one is Instituted to A. his Chappel of Ease as he pretends if the other suggest That A. is a Parochial Church of it self a Prohibition lies as to a Trial whether it be a Parochial Church of it self or not for that they shall not try the Bounds of the Parish but not as to a Trial concerning the Institution for that belongs to the Ecclesiastical Court to examine whether it be well done or not But Houghton said they cannot well try the Institution without trying the Bounds of the Parish If a Testament be made of Lands and Goods and there be a Suit in the Ecclesiastical Court for the Goods and the question be whether the Testator did revoke his Will in his life time or not a Prohibition lies as to the Land and not as to the Goods So if a man sues for the Probat of a Testament in the Ecclesiastical Court and in the Testament there be Lands devised and other personal Goods a Prohibition lies as to the Land but not as to the rest Upon an Allegation in such case That the Devisor revoked his Will before his death a Prohibition was granted as to the Land 29. If a man be sued out of his Diocess and there Answers without taking Exception thereunto and afterwards Sentence be given against him he shall not after have a Prohibition for that he did not take Exception to the Jurisdiction before but affirmed the Jurisdiction In this case Prohibition hath been denied If it appears in the Libel that the Court hath not Jurisdiction of the cause a Prohibition lies after Sentence but otherwise it is if it doth not so appear in the Libel but by averment Generally if a Suit be in the Ecclesiastical Court and Sentence there given for the Plaintiff and thereupon the Defendant Appeals and after pray a Prohibition no Prohibition is to be granted although if he had come before Sentence it ought to have been granted for that it is inconvenient after so much Expence and no Exception taken to the Jurisdiction then to grant a Prohibition Where a man by intendment shall have remedy by Appeal no Prohibition lies And therefore if a man devise a Legacy to B. to be paid him within one year after his death Provided that if he die within the year that then the Legacy shall be void and shall be divided between D. and E. and after B. die within the year and his Executor sue for the Legacy and Sentence given for him for that they there held the Condition to be void yet no Prohibition lies for that by intendment he hath his remedy by Appeal and in this case a Prohibition was denied If a man hath a Prohibition on a Libel for Tithes of Faggots on a Suggestion that the Faggots were made of great Trees above twenty years growth and in the Suggestion the quantity of
Faggots be mistaken yet if it appears that he made his Suggestion according to the Copy of the Libel given him by his Proctor no Consultation shall be brought for by the Statute of 2 H. 5. he ought to have a true Copy of the Libel 30. The Case was where A. sued B. for Tithes within the Parish of C. B. said they were within the Parish of D. and the Parson of D. came pro interesse suo and they proceed there to Sentence Question if in such a Parish or such a Parish shall be tried by the Law of the Land or of the Church Wray said It was Triable by the Common Law Fenner said the Pope hath not distinguished of Parishes but Ordained that Tithes shall be paid within the Parish 31. K. âarson of S. sued C. in the Spiritual Court for Tithes of certain Lands in the Parish of S. D. Plaintiff in the Prohibition came pro interesse suo and said there was a Custome within the Parish of S. that the Parson of H. shall have Tithes 13 Cheeses of the Lands in S. and in recompence thereof the Parson of S. had 13 Cheeses for the Tithes of H. It was said the Right of Tithes were in question and not the Bounds of the Parish and therefore no Prohibition and of that Opinion was the Court and a Consultation awarded 32. If an Administration be granted to A. where it ought not to be granted to him and after the Administration be Repealed and granted to B. for that he is the next of Kin In this case B. may sue A. in the Ecclesiastical Court to Account for the profits of the Goods and Chattels of the Deceased during his time and no Prohibition to be granted for B. cannot have an Action of Trespass against A. nor hath he any remedy for them at the Common Law 33. A Parson may sue in the Ecclesiastical Court for a Modus Decimandi and no Prohibition shall be granted for it is in the nature of Tithes But a Prescription cannot be tried in the Ecclesiastical Court for that it ought to be tried by a Jury which cannot be there Yet if a Parson Prescribe to have Tithes of things not Tithable as of Rents of Houses he may sue for that in the Ecclesiastical Court and no Prohibition lies yet no Tithes de jure ought to be paid of them So he may sue in the Ecclesiastical Court for the Tithes of great Trees which he claims by Prescription and no Prohibition lies yet de jure they are not Tithable Quaere 9 H. 6. 46. 34. If there be a Custome that after the Grass is cut and set into Grass-cocks the Tenth Cock be assigned to the Parson and that by the Custome it shall be lawful for him to make the same into Hay upon the Land and the Owner of the Land disturb him from making the same he may sue for that in the Ecclesiastical Court and no Prohibition shall be granted for that is incident to the Custome to come there to make the same into Hay Also the proper place to sue for a Legacy is the Ecclesiastical Court for that it is not any Debt but only due by the Will If A. do owe to B. five Marks and he Devise by his Will that whereas he doth owe five Marks to B. his Executor shall make it 10 l. The Suit for that 10 l. may be in the Ecclesiastical Court for that is not any Addition to the five Marks but a new Sum given in satisfaction of the five Marks and so no part of the 10 l. any Debt but only a Legacy Also if a man devise a Rent out of his Stock and House which he hath for years the Devisee may sue for that Rent in the Ecclesiastical Court for that it issues out of a Chattel and no remedy for it at the Common Law If a man possessed of a Lease for years Devise that his Executor shall out of the profits thereof pay 20 l. to each of his Daughters at their full Age the Executor may be sued in the Ecclesiastical Court to put in Sureties to pay the Legacies and no Prohibition shall be granted for that is to issue out of a Chattel 35. If there be a Question between two persons touching several Grants which of them shall be Register of the Bishop's Court that shall not be tried in the Bishop's Court but at Common Law for although the Subjectum circa quod be Spiritual yet the Office it self is Temporal Also if a man set forth his Tithes by severance of Nine parts from the Tenth and after carry away the Tenth part the Parson cannot sue for that in the Ecclesiastical Court for that by the severance of the Nine parts it did become a Chattel for which he might have his Action of Trespass 36. It is Reported That if a Suit be in the Ecclesiastical Court against a Woman for exercising the Trade of a Midwife without License of the Ordinary contrary to the Canons a Prohibition lies for that is not any Spiritual Function whereof they have cognizance And in this case Prohibition was granted to the Court of Audience 37. The Ecclesiastical Court may not try the Bounds of a Parish and therefore if Suit be there on that matter a Prohibition lies So if the Question there be whether such a Church be a Parochial Church or but a Chappel of Ease a Prohibition also lies In the Case between Elie vicar of Alderburne in the Country of Wilts and Cooke Prohibition was granted and thereupon Issue joyned whether several Parishes and tried by Verdict to be one Parish 38. Where a man sued for a Legacy in the Ecclesiastical Court against an Executor and he there pleaded that he had not Assets save only to pay the Debts and the said Court disallow'd of that plea a Prohibition was granted 39. If a man sues in the Ecclesiastical Court to have an Account for the profits of a Benefice a Prohibition lies for that it belongs to the Common Law But if the Suit be for the profits taken during the time of Sequestration no Prohibition lies 40. In Worts and Clyston's Case where the Plaintiff sued for Tithes in the Ecclesiastical Court by virtue of a Lease made by the Vicar of T. for three years The Defendant prayed to be discharged of Tithes by a former Lease The Plaintiff in the Ecclesiastical Court prayed a Prohibition to stay his own Suit there It was granted by the Court because they are not to meddle with the trial of Leases or real Contracts there although they have Jurisdiction of the Original cause viz. the Tithes 41. In Collier's Case upon the endowment of a Vicarage upon an Appropriation it was Ordained by the Bishop That the Vicar should pay yearly 20 l. to the Precentor in the Cathedral Church of S. to the use of the Vicars Chorals of the said Church It was held
Law Provisional touching the Building of new Chappels 18. Whether a Seat in the Church and Priority in that Seat claimed by Prescription be Triable at the Common Law by Action upon the Case 19. A Case in Law touching a Tax made in a Parish for the making of new Bells for the Church 20. Whether a Tax for Repairs of the Church may be made by the Church wardens alone without the Major part of the Inhabitants 21. Church-Seats in the generality are in the Ordinaries power to dispose 22. Divers other Cases at the Common Law pertinent to the subject of the Premisses 23. In what respects an Inhabitant in one Parish having Land in another may or may not be Taxed as to the Church of that Parish where the Land lies 24. The difference in Law between a Parsons grant to a man his own Tithes and his grant to him the Tithes of another man as to the validity of the Grant 25. Disposal of Seats in the Body of a Church belongs of Common right to the Ordinary of the Diocess 26. In what respect a man inhabiting in one Parish shall be charged towards the Reparation of the Church of another where he hath Land and in what respects not so 27. Rates for Reparation of Churches are cognizable only in the Ecclesiastical Court and no Prohibition notwithstanding any inequality in the Rate 28. Repairers of a Chappel of Ease not discharged thereby of Reparations of the Mother-Church 29. Land in a Parish not to be Rated for the Ornaments of a Church That Rate to be according to the personal Estate 30. In what case a Prohibition lies to a Suit for Reparations of a Church not so as to a Rate made by the Major part of the Parishioners for the Ornaments of the Church 31. The Bounds of a Parish not Triable in the Ecclesiastical Court though the difference be between two Spiritual persons 32. Prohibition where a Vicar sued the Parson Impropriate for Dammages for cutting down the Trees growing in the Church-yard 33. Prescription of Repairing a Chappel of Eâse no discharge from repairing the Mother-Church 34. The charge of Repairing a Church refers to Land of providing Ornaments of the Church to the personal Estate and how to be apportioned between Landlord and Tenant 35. Action of Trespas lies for the Heir of such whose Coat-Armor or Monument in Church or Church-yard is by any defaced or demolished be it by the Parson the Ordinary or by any other 36. A Case in Law touching a disturbance of sitting in certain Seats in a Chancel of a Church 37. Certain Cases in Law touching striking in a Church and Church-yard and drawing a Weapon in the same 38. The difference taken between having a Seat in the Isle of a Church and a Seat in the Body of the Curch 39. A Prohibition denied on a Prescription of not Repairing a Mother-Church in regard such Prescription is meerly Spiritual 40. The Ecclesiastical Court not to intermeddle with the Precincts of Parish-Churches 41. Towards Church-Reparations all Lands within the Parish as well of Foreigners as Parishioners are ratably liable 42. Controversies touching Seats in Churches determinable in the Spiritual not Temporal Courts In what Cases the Common Law hath took cognizance thereof 1. CHURCH Ecclesia ãâã ãâã ãâã ãâã ãâã from the old word ãâã ãâã ãâã ãâã ãâã h. e. ãâã ãâã ãâã ãâã ãâã or rather ãâã ãâã ãâã ãâã ãâã h. e. evocare being an Assembly of men gathered out of all Mankind or evocatus per Evangelium or from the Hebrew Cahal h. e. Congregatio the true visible Church being a Congregation of Faithful men in which the pure Word of God is preached and the Sacraments duly ministred according to Christ's Institution in all things necessary to the same This in a Theological sense but the word Church in a Legal sense as here chiefly intended differs from the former as far as Dead Walls do from Living Saints there being no more here designed to be touch'd at than what refers rather to the Place than to the Persons Churches are of three sorts Cathedral Collegiate Parochial The Bishop is the Incumbent of the first Priors and Abbots were and Heads of Colledges are Incumbents of the second and Parsons of the third commonly called a Rectory being either a Parsonage or a Vicarage And that either 1 Ratione dotationis 2 Fundationis 3 Fundi 2. The Emperour Justinian Decreed That the Lands of the Church should not be sold alienated or exchanged unless it were to the Prince's house or to or with another like Religious place and that in equal goodness and quantity or that it were for the Redemption of Captives But by the Statute of primo Jac. the Possessions of the Church are protected from alienation or diminution in all respects and so as that they shall remain and continue according to the true intent of their Foundation to their Successors for ever to the uses and purposes therein limited 3. By the Common Law the Church and Church-yard are it seems the Soyl and Freehold of the Parson but the use of the Body of the Church and the Repairs and Maintenance thereof is common to all the Parishioners albeit the disposal of the Pewes in the Body of the Church or an Isle or Chappel joyning to the Body and the disposing of the charges of the Repairs thereof belong to the Ordinary insomuch that no man can challenge a Seat in the Body of the Church without shewing some special reason for the same All which appears in the Case of Boothby against Baily where Boothby being Executor of Gilbert brought a Prohibition against Baily and his Surmize was That whereas Sir Bernard Whetston was seized of the Mannor of Woodford-Hall and that he and those whose Estate he hath in the same had used time out of mind to have a peculiar Pew in the Body of the Church and that the Defendant by Suit in the Ecclesiastical Court sought to dispossess them of the same And by the Opinion of the whole Court this was no sufficient ground of a Prohibition for though the Church and Church-yard be in Law the Soyl and Freehold of the Parson yet the use of the Body of the Church and the repair and maintenance thereof is common to all the Parishioners And for avoiding of confusion the distribution and disposing of Seats and charges of Repair belong to the Ordinary and therefore no man can challenge a peculiar Seat without a special reason But if it had been Prescribed That Sir Bernard Whetstone c. had used time out of mind at their own costs to maintain that Pew and had therefore had the sole use thereof the Prescription might have stood and been warrant for a Prohibition though the Pew were in the Body of the Church And so it is in the like case of an Isle or Chappel adjoyning to the Body of the Church upon the same difference whether it hath been maintained by the whole Parish or
within the Town or Parish and he and all those whose Estate he hath in the Mansion-house of the Mannor or other House hath had a Seat in an Isle of the Church for him and his Family only and have repaired it at his own proper charges it shall be intended that some of his Ancestors or of the parties whose Estate he hath did build and erect that Isle for him and his Family only and therefore if the Ordinary endeavour to remove him or place any other there a Prohibition as was resolved in Corven's Case will lie It hath also been further Resolved That if any man hath a House in a Town or Parish and that he and those whose Estate he hath in the House hath had time out of mind a certain Pew or Seat in the Church maintained by him and them the Ordinary may not remove him for Prescription according to Sir Ed. Coke maketh Certainty the Mother of Quietness otherwise a Prohibition will also lie in the case But where there is no Prescription there the Ordinary for avoiding of contention in the Church may place the Parishioners in the Church or publick Chappel according to their qualities and degrees And until the Bishop hath consecrated or dedicated Churches or publick Chappels new erected the Law doth not take knowledge of them qua tales for which reason it is That a Church or not a Church a Chappel or not a Chappel is Tried and Certified by the Bishop 10. Touching the Reparation of Churches the cognizance thereof appertains to the Ecclesiastical Court as was Agreed by the Court in Buck's Case against Amcotts where in a Prohibition the Defendant said That in Hornechurch in Essex are Chappels of Ease viz. Rumford and Haveringe Chappels and that they of Haveringe have used time out of mind c. to contribute to the Reparation of Rumford and that in the time of H. 4. virtute Literar patent concurrentibus iis c. And Rumford was pulled down and erected in a more convenient place within this precinct and circuit viz. twenty eight foot longer and fourteen foot broader Noy That it does not lie 1 Virtute Literà r patent in general is not good But the Patent ought to have been shewn in haec verba or produc'd in Court by which the Court might judge For a new Church cannot be erected without Letters Patents because it is a Sanctuary Ve. 5 E. 3. 26. 1 H. 7. 25. 22 E. 4. the Lord Lisle's Case 2. The Prescription is gone by the erecting in another place and longer c. as aforesaid ve 4. Rep. P. 6. And that shall be taken strict Perkins 761. 7 E. 4. 27. 10 E. 3. 23. But the Court was on the contrary because it is pro bono Publico and in such a case a Pleader by Concurrentibus iis is good As in an Union 11 H. 7. 8. And that the Cognizance for Reparation of the Church appertains to the Spiritual Court and is not like the Case of a Tenure 4 Rep. 86. because the Tenant by that is put to a greater charge and no profit or benefit accrues to the Tenant as it does to the Parishioner And Easter Term ensuing a Consultation was granted by the Court He that hath the Impropriation of a Rectory or Parsonage ought to repair the Chancel and so he ought to contribute to the reparation of the Church if he hath any Land in that Village Mich. 18 Jac. B. R. Serjeant Davies Case Roll. Rep. par 2. 11. The Church-wardens of Denford an Ancient Church in the County of Northampton sue the Inhabitants of Kingstead in the same Parish where there was a Chappel of Ease for contribution to repair the Church of Denford And they pray a Prohibition upon suggestion That time out of mind c. they have used to Repair their own Chappel and only a part of the Wall of the Church-yard of the said Church of Denford And it seemed by the better opinion of the Court that it was not good For their Ease shall not be a disease to the rest of the Parishioners For Popham said That the Assent is not requisite to build a Chappel of Ease and then the Ordinary and the Parson cannot charge the Parishioners with greater charge By Yelverton That the Parson ought to repair the Wall of the Church-yard But by Fenner The Parishioners in the Spiritual Court shall be compelled to do it although that the Frank-tenement be in the Parson Yelvert objected and by Kemp secondary That the Parishoners of repair the Wall of the Church-yard Yet now it was ordered that a Prohibition shall be granted and the Dâfendants if they please may demurr upon it Note also B. 5 Jac. B. R. a Derbyshire-Case where a Prohibition in such case was denied 12. Two Church-wardens sue S. for Reparation of the Church according to the Tax assest S. pleads he alwaies offered to pay By which the Sentence in the Ecclesiastical Court passed against them Then they Appeal and Sentence is repealed and 15 l. Costs given to them and they sue for that 15 l. in the Ecclesiastical Court S. pleads a Release of one of the Church-wardens And in a Prohibition it seem'd to the three Justices That that Release is a Bar against the other and that if it be disollowed in the Spiritual Court by the Court it was said a Prohibition shall lie 7 Jac. B. R. rot 852. A Consultation in such case was granted for the Church-wardens in such a case are a Corporation for the benefit but not for the prejudice of the Parish 13 H. 7. 9. 11 H. 4. 12. And they shall recover the Costs to the use of the Church and the Release shall be well enough determined there where the Suit was commenced 13. In Heal's Case against the Church-wardens of Hobleton it was agreed by the Court That for a Tax assest for the Reparation of a Church a Rate made perpetuis duratura temporibus it is not good to bind the Inheritance but yet it is good by way of direction how and how much shall be levied as need requires And in Chamber 's Case a Prohibition was awarded to the Court of the Bishop of Oxford for that that Chambers was sued there for a perpetual charge imposed upon his Land for the Reparation of the Church For by the Court an Inherritance cannot be charged with that In another Case one that was sued in the Ecclesiastical Court for Rates to reparation of the Church alledged that they had overvalued his Land Rating them at the value of 100 l. per. annum they being worth but 60 l. 2 He alledged a Custome in the Parish that they ought to be rated not according to the value of their Farms and Houses but only according to the value of their Sheep-walks and on that matter he pray'd a Prohibition As to the first all the Court except Whitlock Resolved that it is not material because the Rates ought
to follow the value of the Land and for that the valuing of the Land properly belongs to them As to the second Noy moved That although the Principal be a thing Spiritual yet it is now mixt with a Custome as in the Case de modo Decimandi the Ecclesiastical Court is ousted of his Jurisdiction Houghton Justice It seems so as to other things but the Church being the House of God is more to be regarded and a custome in prejudice to the Reparations of the Church is void for of common Right the House and all Lands are chargeable to the Reparations And the Court commanded him to make a Suggestion of the Custome omitting the value and then they would consider whether a Prohibition should go or no. In Stephenson's Case it was Resolved that if one hath Lands in one Town and doth inhabit in another he shall be compelled to be contributary to the Reparation of the Parish Church where the Lands are 14. Note by Coke Chief Justice That the keeping of a Church-Book for the Age of those which should be Born and Christned in the Parish began in the Thirtieth year of Henry the Eighth by the instigation of the Lord Cromwell 15. Chappel Capella of the French Chapelleé that is aedicula Of this there seems to be three sorts the one such as adjoyns to the Church as parcel of the same built by Persons of Honour ut ibidem Familiaria Sepulchra sibi constituant Another that which is separate from the Mother-Church in a Parish of a large extent built for the better ease and convenience of such Parishioners whose habitations are remote and far distant from the Parish-Church and thence vulgarly called a Chappel of Ease being served by some inferiour Curate at the charge either of the Rector or of such as for whose convenience it is according to the custome or composition A Chappel of Ease is where there is a Parochial Church in the same Parish wherein the Sacraments are administer'd and not in the Chappel 8 H. 6. 32. which appertains to the Parochial Church and the Parson thereof Ibid. And a Parochial Church cannot be a Chappel 8 H. 6. 37. The Third is that which is called a Free-Chappel which in point of Maintenance and endowment as also in respect of exemption from the Ordinaries Jurisdiction seems to differ from both the former and hath perpetual maintenance towards the upholding thereof by a charitable Endowment thereof without the charge of the Rector or Parish So that a Free-Chappel or Libera Capella is according to the opinion of some no other than a Chappel founded within some Parochial precincts for Divine Service by the bounty of some well disposed person over and above the Mother-Church to which it was at the Parishioners choice or liberty for whose convenience it was erected to repair or not and endowed with Maintenance by the Founder and therefore called Free. Notwithstanding which others are of opinion and that more probable That these only are Free Chappels which are of the Foundation of Kings and by them exempted from the Jurisdiction of the Ordinary but the King may also License a Subject to Found such a Chappel and by his Charter exempt it from the Visitation of the Ordinary in respect of which exemption and from the Jurisdiction of the Diocesan it appears by the Register of Writs to be called Free H. 8 E. 3. B. R. Rot. 97. Episcopus Exon attachiat ad respondendum Domino Regi quare exerceret Jurisdictionem in Capella Regia Sanctae Burianae in Cornub c.. The King himself Visits his Free Chappels and Hospitals and not the Ordinary The Lord Chancellor executes it for the King These Chappels were all of them together with Chantries given to the King Of this kind is the Free Chappel of St. Martin le Grand The Canonists are not agreed touching the derivation of this word some take it à capiendo Laicos others à Capra because they conceive that they resemble those Cottages which were wont to be covered over with Goat-skins Others à cappa Divi Martini Others è Chapellee Gallic 16. In the Parish of Aston in the County of Warwick which hath a Parish Church is a certain Chappel of Ease called Castle-Birmidge Chappel and a certain Precinct called Castle-Birmidge the Inhabitants thereof resort to the said Chappel and there Marry Christen and receive the Sacraments there are also Church-wardens and the Inhabitants have a Perambulation there of it self notwithstanding all which when it came in debate whether the Parishioners of the Chappel the Parish-Church of Aston being in decay might be Taxed towards the Reparation thereof they obtained a Prohibition on a Surmize which not appearing to be true a Consultation was awarded yet in that case it was held That if two Churches Parochial be united the Reparation shall be several as before And that a Chappel of Ease is part of the Parish de communi jure liable to reparations of the Parish Church that such as have a Chappel of Ease may resort to the Parish Church if they so please and that the Parson of the Parish-Church may Officiate at the Chappel of Ease if he will 17. The Emperour Justinian in the fifth Collation of his Novel Constitutions commonly called the Authenticks emitted by him after the Digest and the Code hath Ordained That no man build a Chappel in his House without the leave of the Bishop and before he consecrate the place by Prayer and set up the Cross there and make procession in the place and that before he build it he allot out Lands necessary for the maintenance of the same and those that shall attend on God's Service in the place In which Collation there is also that which seems to bear some conformity with the Acts of Uniformity established in this Realm against Seditious Conventicles For in that Collation it is likewise Ordained by the said Emperour That the sacred Mysteries or Ministeries be not done in private Houses but be celebrated in publick places lest thereby things be done contrary to the Catholick and Apostolick Faith unless they call to the celebrating of the same such Clerks of whose Faith and Conformity there is no doubt made or those who are thereunto deputed by the Bishop But Chappels and places to pray in every man may have in his own House if any thing be done to the contrary the House wherein these things are done shall be confiscate and themselves punished at the discretion of the Prince 18. A. the Father had all his life the chief place in a certain Seat in the Church and H. his Son likewise claimed the same and C. disturb'd him in a violent manner the Archbishop of York in whose Jurisdiction this was granted an Inhibition against C till the matter were determined before him and Excommunicated him for Disobedience C. claimed the place by Prescription and for that Reason prayed a Prohibition
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
time of King H. 3. Ed. 3. and Ed. 4. they in the Ecclesiastical Court have not any power to intermeddle with the Precinct of Parish-Churches neither are they there to Judge what shall be said to be a mans Parish-Church And so was the Opinion of the whole Court and therefore by the Rule of the Court a Prohibition was granted 41. Touching the Reparations of a Church and who were liable thereunto this being a question coming in debate before the Judges It was Resolved by the whole Court That for and towards the Reparation of a Church the Land of all as well of Foreigners there not inhabiting as of all others is liable thereunto and this is so by the general custome of the place and this is to be raised by a Rate imposed according to the value of the Land and that in the nature of a Fifteen and this is not meerly in the Realty Williams and Yelverton Justices and Flemming Chief Justice Not the Land but the person of him who occupieth the Land is to be charged Yelverton Justice A man is chargeable for Reparations of a Church by reason of the Land and for the Ornaments in the Church by reason of his coming to Church Williams Justice and Flemming Chief Justice If the person have Land there he is chargeable for both whether he come to Church or not for that he may come to Church if he please 42. In a Prohibition the Case was this The Defendant did Libel before the Bishop of London in the Consistory Court for a Seat in the Church Sentence there passed against the Defendant whereupon he Appealed to the Arches The Court was moved for a Prohibition in regard the Title to the Seat or Pew was grounded upon a Prescription The Court answered c. As for the Title we are not here to meddle with it this being for a Seat in the Church Haughton Justice This Disposition of Pews in the Church belongs of right to the order and discretion of the Ordinary and to this purpose is the case of 8 H. 7. fo 12 and Sir William Hall's case against Ellis Doderidge Justice I moved this case in the Court of C. B. and it was for a Seat in the Church An Action there brought for Disturbance and I there cited Hall's case and 9 E. 4. fo 14. The Case of the Grave-Stone and Coat-Armor for the taking of which an Action of Trespass lies at the Common Law and therefore by the same reason an Action of Trespass should lie for such a Disturbance in a Seat of a Church but there the Judges did all of them say That they would not meddle with the deciding of such Controversies for Seats in the Church but would leave the same to them to whom more properly it belonged Croke Justice Hall's case was this where a man did build an entire Isle in the Church and was at continual charge to repair it if he be disturbed in the use of this he shall for this Disturbance have his remedy at the Common Law and so it hath been adjudged But the Judges all said We are not here to meddle with Seats in the Church Doderidge Justice This Appeal here is like unto a Writ of Error at the Common Law but it doth differ in this By the Appeal the first Judgment or Sentence is suspended but after a Writ of Error brought the first Judgment still remains until it be reversed Coke Chief Justice It was Pym's Case in the Common Bench and 8 H. 7. fo 12. that the Ecclesiastical Court hath Jurisdiction and power to dispose of Pews and Seats in the Church But if there be an Isle built by a Gentleman or by a Nobleman and he hath used to Bury there and there hath his Ensigns of Honour as a Grave-stone Coat-Armor or the like which belongs not unto the Parson if he take them the Heir may well have an Action of Trespass Otherwise it is where the same is repaired at the Common charge of the Parish there they have the disposing of them Ellis and Hall's Case remembred a Kentish Case there the Seat was repaired by him and was belonging to his Capital Messuage by Prescription and so triable at the Common Law And so where the Case is Special that the party doth wholly and solely repair the same in such a case if a Suit be there concerning such a Seat a Prohibition well lieth but not otherwise But if a Nobleman comes to dwell in the Countrey he is now within the sole order and dispose of the Ordinary for his Pew and Seat in the Church and upon the former difference was Pym's case adjudged in the C. B. in this principal Case a Prohibition was denied by the whole Court CHAP. XIII Of Churchwardens Questmen and Sidemen 1. What such are in construction of Law how the choice of them is to be made and wherein the Office doth consist 2. What Actions at Law may lie for or against them 3. Whether Actions lie for the New Churchwardens in Trespas done in time of their Predecessors 4. Certain things appertaining to the Church within the charge and office of Churchwardens to provide and preserve 5. Cases in Law touching the Election of Churchwardens 6. What Sidemen or Questmen are and their duty 7. Action at Law against Churchwardens touching Distress taken by them for money for relief of the Poor 8. A Churchwarden refusing to take the Oath of Enquiry on the 39 Articles Action thereon 9. What remedy in case the Archdeacon refuses to Swear the Church-wardens Elect. 10. The Injunctions of King Ed. 6. touching all Marriages Baptisms and Burials to be Registred in the presence of the Churchwardens 11. Whether the Release of one Churchwarden shall be a Bar to his Companion in an Ecclesiastical Suit commenced by them both 12. Prohibition where Churchwardens have pretended a Custome to chuse the Parish-Clerk 13. The like upon a Presentment by Churchwardens against one in matter more proper for a Leet than the Ecclesiastical Court to take cognizance of 14. The prevalency of Custome against a Canon in choice of a Churchwarden in reference to a Vicar and the Parishioners 15. If question be whether Lands next adjoyning unto a Church-yard shall be charged with the repairs of the Fences thereof and Custome pleaded for it in what Court cognizable 16. In Action of Account by Parishioners against Churchwardens by whom a Release of Câsts is pleaded but disallowed in the Ecclesiastical Court whether Prohibition lies in that case 17. Whether Churchwardens are a Corporation qualified for Lands as well as Goods to the use of the Church 18. The Churchwardens disposal of Goods belonging to the Church without the assent of the Sidemen or Vestry void 19. Churchwardens not Ecclesiastical Officers but Temporal employed in Ecclesiastical Affairs Before whom are they to Account 20. Whether Churchwardens may have Action for Trespass done to the Church in their Predecessors time 21. Whether the Parishioners by force of a
Custome or the Parson by virtue of a Canon shall chuse the Churchwarden and whether Prohibition lies in that case 22. Whether Churchwardens as a Corporation may prescribe to take Lands to them and their Successors to the use of the Church 1. CHurchwardens or Guardiani Ecclesiae are certain Officers Parochial annually elected or chosen by and with the consent of the Minister and a select number of the chief Parishioners according to the Custome of the place to look to the Church and Church-yard and to take care of the concernments thereof and of such things as appertain thereto as also to observe and have an inspection into the Behaviour Lives and Conversation of their Parishioners touching such faults and disorders as are within the cognizance and censure of the Ecclesiastical Jurisdiction These Officers are a kind of Corporation enabled to sue and be sued for any matters or things belonging to the Church or Poor of their Parish and have as their Assistants certain Side-men or Questmen who according to the custome of the Parish are yearly likewise chosen to assist the Churchwardens in the Enquiry and presenting such offenders to the Ordinary as are within the Ecclesiastical cognizance and censure aforesaid for which they are not to be sued or troubled at the Law by any such Offenders so presented as aforesaid nor are they obliged to Present oftner than twice a year except it be at the Bishop's Visitation yet they may present as oft as they shall think meet if good occasion shall so require but they may not on pain of being proceeded against by their Ordinaries as in cases of wilful Perjury in Courts Ecclesiastical willingly and wittingly omit to present such publick Crimes as they knew to have been committed or could not be ignorant that there was then a publick same thereof Moreover the Old Churchwardens are to make their Presentments before the New be Sworn till which time the Office of the old continues the usual time for the New Churchwardens to enter upon their Office is the first week after Easter or some week following according to the direction of the Ordinary before which the old Churchwardens shall exhibit the Presentments of such enormities as happened in their Parish since their last Presentments and shall not be suffered to transmit or pass over the same to those that are newly chosen By the Ninetieth Canon the choice of Churchwardens Questmen Sidemen or Assistants is to be yearly made in Easter-week and that by the Joynt-consent of the Minister and the Parishioners if it may be otherwise the Minister to chuse one and the Parishioners another who at their years end or within a month next after shall in the presence of the Minister and the Parishioners make a just Account of what they have received and disbursed for the use of the Church and shall deliver over what remains in their hands belonging to the Church unto the next Churchwardens by Bill Indented 2. One brought Action on the Case against Churchwardens for a false and malicious Presentment of him in the Spiritual Court and found for the Defendants They prayed double Costs on the Statute of 1 Jac. But Jones Crook and Berkley Justices denied it for that the Statute doth not extend to Churchwardens for things of their office in Ecclesiastical Causes They have their Action of Trespass at the Common Law for such things taken away out of the Church as belonged to the Parishioners in reference to the Church And the Release of one of the Churchwardens is no Bar in Law to the other If one take away the Chalice or Surplice out of the Church Action of Trespass lieth against him at Common Law and not in the Ecclesiastical Court So if one lay violent hands on an Ecclesiastical person an Action lies in the Ecclesiastical Court but he shall not there sue for dammages If the Organs or Parish-Bible or the like be taken away out of the Church the Action lies at the Common Law and not in the Spiritual Court for the same for the Churchwardens may have their Action at Common Law in that case But if the Parson take away out of the Church the Scutcheon or Banner of some person deceased his Widow if she did put it there and it be taken away in her life time may have her Action of Trespass at Common Law or after her decease the Heir may have the same Action 3. Trespass brought by the Churchwaâdens of F. and declared That the Defendant took a Bell out of the said Church and that the Trespass was done 20 Eliz. It was found for the Plaintiffs It was moved in Arrest of Judgment that it appears by the Declaration That the Trespass was done in the time of their Predecessors of which the Successor cannot have Action and Actio personalis moritur cum persona Vid. 19 H. 6. 66. But the old Churchwardens shall have the Action Coke contrary and that the present Church-wardens shall have the Action and that in respect of their Office which the Court granted And by Gawdy Churchwardens are a Corporation by the Common Law Vid. 12 H. 7. 28. by Frowick That the New Churchwardens shall not have an Action upon such a Trespass done to their Predecessors Contrary by Yaxley Vid. by Newton and Paston That the Executors of the Guardian in whose time the Trespass was done shall have Trespass 4. It is the duty of Churchwardens not only to take care of the Concernments of the Church and to present Disorders as aforesaid but also to provide Bread and Wine against the Communion the Bible of the largest Volume the Book of Common Prayer a decent Pulpit a Chest for Alms Materials for repairing the Church and fencing the Church-yard and the like all at the Parish-charge and shall what in them lies prevent the prophanation of Churches by any usage thereof contrary to the Canons It was agreed by the Court in Robert's case That a Tax for the Church cannot be made by the Churchwardens only Hetley's Rep. 5. In Butt's Case Moore Serjeant moved at Court for a Prohibition because where the custome of the Parish or Village was that the Parishioners have used to elect two Churchwardens and at the end of the year to discharge one and elect another in his room and so alternis vicibus c. By the New Canon now the Parson hath the Election of one and the Parish of the other and that he that was elected by the Parishioners was discharged by the Ordinary at his Visitation and for that he prayed a Prohibition Et allocat as a thing usual and of course For otherwise by Hubbard the Parson might have all the Authority of his Church and Parish The like Case to this we have elsewhere reported viz. The Parson and Church-wardens in London by the Custome are a Corporation and the Parishioners time out of mind c. have used at a
the Case in 8 E. 4. 6. The Churchwardens brought Trespass for the Goods of the Church taken out of their possession and they counted Ad damnum Parochianorum and not to their proper dammage and the 11 H. 4. 12. 12 H. 7. 27. 43 H. 7. 9. where it is said expresly That the Wardens of a Church are a Corporation only for the benefit of the Church and not for the disadvantage thereof but this Release sounds to disadvantage of the Church and therefore seems to be no Barr Also this Corporation consists of Two persons and the Release of one is nothing worth for he was but one Corps and the moiety of the Corps could not Release and for these Reasons he prayed a Consultation Yelverton to the contrary and he took a difference and said That he agreed that if the Wardens of the Church have once possession of the Church there in Action of Trespass brought for these Goods one Warden cannot Release But this Tax for which they Sue is a thing meerly in Action of which they have not any possession and there he cannot Sue alone and therefore this Release shall barr his Companion The Court interrupted him and said That clearly Consultation shall be granted Fleming Chief Justice We have not need to dispute this Release whether it be good or not and there is a difference where Suit is commenced before us as if Churchwardens brought Trespass here for Goods of the Church taken and one Release then we might dispute whether this Release were good or not but when the matter is originally begun before them in the Ecclesiastical Court and there is the proper place to sue for this Tax and not any where else we have nothing to do with this Relase for which reason by the whole Court a Consultation was granted In an Action in the Ecclesiastical Court by two Churchwardens if the Defendant plead the Release of one of them that shall be tried there and no Prohibition shall be granted Vid. Roll. Abr. ver Prohibition pag. 306. nu 3. 12. If the Churchwardens of a Parish have used time out of mind c. to chuse the Parish-Clerk and Suit be in the Ecclesiastical Court to remove him and to put in one of the Parson's choice a Prohibition lies as in Walpool's case but there the Prohibition was granted by the consent of parties to try the custome The like Prohibition was granted between Brown and Crawshawe for White-Chappel Parish And the like granted between Beaumont and Westley for the Parish of St. Cuthberts in Wells 13. If a Presentment be made by the Churchwardens of a Parish in the Ecclesiastical Court That J. S. one of the Parishioners is a Railer and sower of Discord among his Neighbours a Prohibition lies for that belongs to the Leet and not to that Court unless it were in the Church or such like place 14. Where the Parishioners of a Parish have used time out of mind c. to chuse one Churchwarden and the Vicar another and afterwards a Canon is made That the Vicar shall chuse both and so he doth accordingly and the Parishioners shall chuse one according to the custome and the Ordinary disallow him and confirm the Two chosen by the Vicar a Prohibition hath been granted in this case So likewise a Prohibition was granted against the Church-wardens chosen by the Parson of St. Magnus near London-Bridge by force of the Canon on a surmize That the Parish had a custome to Elect both Churchwardens The like also was granted for Abchurch in London 15. Where the Churchwardens sued in the Ecclesiastical Court J. S. supposing in their Libel that he and all those whose Estate he hath in certain Land next adjoyning to the Church-yard have used time out of mind c. to repair the fences of the Church-yard next adjoyning to the said Land In this case it was said that a Prohibition lies and that it ought to be tried at Common Law for that it is a charge to the Temporal Inheritance 16. If the Parishioners sue the Churchwardens of the Parish in the Ecclesiastical Court to make an Account and in that Suit costs of Suits are Taxed for the Parishioners against the Church-wardens and after the Churchwardens pay the costs to one of the Parishioners and thereupon he that receives the costs gives a Release to the Churchwardens for the said costs and that Release is after pleaded by the Churchwardens against the other Parishioners in the Ecclesiastical Court and they there disallow it yet no Prohibition granted for that they have cognizance of the Original viz. the costs they shall have cognizance also what shall be a sufficient payment thereof And in this case a Prohibition was denied 17. The Churchwardens cannot prescribe to have Lands to them and their Successors for they are not any Corporation to have Lands but for Goods for the use of the Church And therefore it seems at the Common Law if a Feoffment be made to the use of the Churchwardens of D. it is a void use for they have no capacity for such purchase 18. The Churchwardens gift of Goods in their custody without the assent of the Sidemen or Vestry is void If a man take the Organs out of the Church the Churchwardens may have Action of Trespass for them for the Organs belong to the Parishioners and not to the Parson therefore the Parson cannot sue him in the Ecclesiastical Court that takes them away The Churchwardens by the assent and agreement of the Parishioners may take a decayed Bell and deliver it to the Bell-Founder and that by their agreement he shall have 4 l. for the casting thereof and retain it until the 4 l. be paid and that Agreement of the Parishioners shall excuse the Churchwardens in a Writ of Account brought against them by their Successors Churchwardens for the Parishioners are a Corporation to dispose of such personal things as appertain to the Church 19. B. Churchwarden of the Church of S. was sued in the Ecclesiastical Court to Account for the Moneys which he had received and expended by reason of his Office the last year past and for obtaining a Prohibition he suggested That per Legem terrae he ought to Account before the Minister of his Parish the succeeding Churchwardens and a great number of the Parishioners and that he had Accounted accordingly Henden the Ecclesiastical Judge ex Officio may compel him to Account before him I agree that Churchwardens for all personal things concerning the Church are a Corporation 8 E. 4. 6. and for Goods of the Church they may have Action and count to the damage of the Parish and the succeeding Churchwarden may have Action against his Predecessor as against a Stranger but not as against an Officer for what he did ratione Officii and then if he shall not be enforced to Account in the Ecclesiastical Court then there will be no remedy against him vid. 12 H.
Sir Simon Degge in the forementioned place makes mention of the Inhibition out of Chancery to the Bishop of Durham by order of Parliament in Edward the First 's time for wasting the Woods belonging to that Bishoprick Also of the Archbishop of Dublin's being Fined three hundred Marks for disforresting a Forrest belonging to his Archbishoprick Likewise that by several Books of the Common Law a Bishop c. wasting the Lands Woods or Houses of his Church may be deposed or deprived by his Superiour And in case any Parson Vicar c. shall make any Conveyance of his Goods to defraud his Successor of his Remedy in case of Dilapidations in that case it is provided by the Stat. of 13 Eliz c. 2. that the Spiritual Court may in like manner proceed against the Grantee as otherwise it might have done against the deceased Parson's Executors or Administrators and all such Grants to defraud any person of their just actions were made void by a later Statute It is agreed That the cognizance of Dilapidations properly and naturally belongs to the Ecclesiastical Jurisdiction and no Prohibition to lie in the case or if such happen to be granted then the same to be superseded by a Consultation yet it seems Actions upon the Case grounded upon the custome of England have been brought in this case at Common Law and Dammages recovered It is also enacted by the Statute of 14 Eliz. That that Moneys recovered upon dammages for Dilapidations shall be expended in and upon the Houses c. dilapidated 2. Cardinal Othobon in his Canon De Domibus Ecclesiarum resiciendis hath constituted and ordained That all such Ecclesiastical persons as are Beneficed take special care that from time to time they sufficiently repair the Dwelling-houses and other Edifices belonging to their Benefices as oft as need shall so require unto which duty they are earnestly and frequently to be exhorted and admonish'd as well by their Diocesans as by the Archdeacons And if they shall for the space of two months next after such Monition neglect the same the Bishop of the Diocess may from thenceforth cause it to be effectually done at the Parson's charge out of the profits and fruits of his Church and Benefice taking only so much and no more as may suffice for such Repairs And the Chancels of Churches to be in like manner repair'd by those who are obliged thereto And as to Archbishops Bishops and other inferiour Prelates they are by the said Canon enjoyn'd to keep their Houses and Edifices in good and sufficient Repair sub divini Judicii attestatione Constit Othobon de dom Eccl. reâiâ Sub divini Judicii attestatione h. e. damnationis aeternae in extremo Calâulo glo in ver Sub divini Const Othobon de resident Archiepisc 3. By the Gloss on that Canon it is inferr'd That a Parson may be guilty of Dilapidations or of a Neglect in that kind two waies viz. either by not keeping the Edifices in good repair or by not repairing them being gone to decay That Canon chiefly refers to the Mansion-houses of all Benefices Ecclesiastical and that not only of all Parsonages and Rectories but also of all Bishopricks and of all Curates and Prebends and of all others having Ecclesiastical Livings but not specially by the words of this Canon unto their Farm-houses though they also are by the Canon Law provided for in case of Dilapidations And such as neglect the Reparations aforesaid may be accused and convicted thereof before the Diocesan who hath power to sequester the Fruits of such Benefice for the Reparations aforesaid Gloss in ver cessaverit in dict Can. such Fruits thereof being in construction of Law as it were tacitly hypothecated by a certain kind of Priviledge for such Indemnity and for that reason the Bishop in some cases may for that end sequester the same 4. And whereas in the abovesaid Canon it is said That Chancels shall be kept in repair by such as are thereunto obliged it is to be understood that that is spoken by way of allusion to the common Custome in England whereby the Body of the Church is usually repaired by the Parishioners and Chancels by the Rectors who notwithstanding ought to be at the care though not at the costs of the other also he being annually accountable to the Bishop for the same if the Bishop so please for which reason the Rector hath power to audit the Accounts of the costs and charges about the same as also what shall be given or bequeathed by way of Legacy for that end and purpose And where this custome prevails That the Parishioners shall repair the Body of the Church it is not to be understood that this is incumbent on them as a Real but as a Personal duty or burden yet every Parishioner proportionably to that quantity of Land which he holds within the Parish and number of Cattel he feeds on the same Gloss ibid. in ver ad hoc tenentur And in case one Parish be by legal Authority divided into Two in that case if such division were made by and with the consent of these Four viz. the Bishop the Patron the Parson and the Parishioners then the more Ancient Church shall not contribute to the Reparations of the New for that now they are two dictinct Parishes Gloss ibid. 5. Sir Ed. Coke in the third part of his Institutes having spoken of erecting of Houses and Building c. tells us what he finds in the Books of the Common Law and Records touching Dilapidations and decay of Buildings and having Margined as here in this Margent says That Dilapidation of Ecclesiastical Palaces Houses and Buildings is a good cause of Deprivation 6. By the Injunctions of King Ed. 6. An. 1547. to all his Clergy it is required That the Proprietors Parsons Vicars and Clarks having Churches Chappels or Mansions shall yearly bestow upon the same Mansions or Chancels of their Churches being in decay the fifth part of their Benefices till they be fully repaired and the same so repaired shall alwaies keep and maintain in good estate Consonant to which is the Thirteenth Article of Queen Elizabeths Injunctions given to all the Clergy An. 1559. 7. The Case was where the Parson made a Lease to the Plaintiff for 21 years after the Statute of 13 Eliz. of Lands usually Lett rendring the ancient Rent the Patron and Ordinary confirmed it the Lessee lett part of the term to the Defendant the Parson died the Successor entered and leased to the Defendant against whom the Lessee brought Debt upon the former Lease who pleaded the Statute of 13 Eliz. which made all Leases void where the Parson is not resident or absent for 80 daies It was Adjudged That the Lease was void by the death of the Incumbent for the Justices said The Statute doth provide against Dilapidations and for maintenance of Hospitality and therefore provided the Leases shall be void not only for Non-residence
void a Stranger doth usurp and presents his Clerk to the Avoidance and Six months pass and afterwards the King being entitled to the Avoidance by reason of the Outlawry bring a Quare Impedit against the Incumbent as being in wrongfully and remove him By this means the Advowson is recontinued again to the Rightful Patron whereof he was ousted by the Usurpation who upon the reversal of the Outlawry shall Present in case the Church becomes void again 12. A man hath Three Avoidances granted him of one Church at one time and by one Deed The Church becomes void the Grantor by Usurpation presents his Clerk who is Admitted Instituted and Inducted afterwards the Church becomes void again In that case the Grantee shall present to the Second Avoidance for that the former Presentation made by the Grantor usurping did not put the Grantee out of all the Avoidances and Adjudged accordingly 13. A. seized of a Mannor with an Advowson appendant presented B. who was Admitted Instituted and Inducted afterwards A. fells the Mannor to which the Advowson was appendant unto J. S. The Church becomes void by the death of B. whereupon the Queen 15 Feb. 1588. Present J. D. by these words viz. Per mortem naturalem Incumbeatis ibid. vacant who thereupon 20th of the said Feb. was Admitted Instituted and Inducted by Letters of Institution Per Dominam Reginam veram indubitatam Patronam The said J. D. dies The King presents R. in these words viz. Ad nostram Praesentationem sive ex pleno jure sive per Lapsum Temporis sive alio quocunque modo spectant The only Question was Whether notwithstanding all this matter the Advowson did remain Appendant or not And it was Adjudged by the Court That the Advowson remained Appendant notwithstanding the Queens presentation of J. D. For it appeared there was no colour of Title to the Queen to present no Lapse for the Presentation Institution c. were all in the same month wherein the Advoidance was And it was no Usurpation by the Queen because the Presentation supposed a Right where none was and so was void for the Queen meant to do no wrong And upon the same reason the Presentation of R. afterwards by the King was void And it was then further holden by the Court That the Presentation of J. D. being void it was but a Collation of the Bishop which makes no disappendancy nor so much as a plenarty against the Rightful Patron but that he may bring his Quare Impedit when he will and if the Bishop receive his Clerk the other is out ipso facto 14. Although an Advowson be a kind of Reversion of a right of Presentation to a Living or Benefice called Spiritual yet it is now in the nature of other Temporal Inheritances and therefore he that hath this Right in him may either devise it by Will or grant it by Deed in Fee or for life or for years as other things And in regard an Advowson or Jus Patronatus refers to and respects not the Oblations and Tithes belonging to the Church but rather the Building thereof with the Ground whereon it is built and the Endowment thereof if therefore any debate or controversie should happen to arise touching any of these last mentioned it might prejudice the Patron as to his Right to the Advowson but if the controversie be only touching the other viz. the Oblations or Tithes whether Great or Small the Jus Patronatus will remain good and entire to the Patron notwithstanding such Controversie provided the Suit doth not extend and be for a fourth part of the whole belonging to the Church Lindw de Foro Comp. cap. Circumspecte verb. Item si Rector gl ibid. verb. quarta pars And he to whom the Right of Advowson of any Church appertains is termed Avowè for distinctions sake to discriminate him from those who sometime Present in the Name of another as a Guardian that presents in the Name of his Minor as also to difference him from such as have only for term of their Lives or of years or by Intrusion or Disseisin the Lands to which an Advowson appertains the Avowè properly and strictly taken being only he who may Present in his own Right and in his own Name 15. It hath been Adjudg'd That an Advowson belonging to a Prebend will not pass by a Lease thereof albeit it hath in it these words viz. Commodities Emoluments Profits and Advantages because all these four words being of one sense and nature imply things gainful which is contrary to the nature of an Advowson regularly as aforesaid yet an Advowson may be yielded in value upon a Voucher and may be Assets in the hand of an Executor and in the foresaid Case of London vers c. it is said That an Appropriation nor the Advowson of it will not pass by the name of an Advowson yet an Advowson will be contained under the name of a Tenement And where the King granted that Monks should have all their Possessions of the Abbey in the Vacation for their sustentation Ruled that they should not have the Advowsons because no sustentation arose from them nor will an Advowson though it be appendant pass in the Kings Grant without special words yet in the Case of a Recusant convict to whose Lands an Advowson is appendant the seizure of Two parts of his Land for the King is a Seizure by consequence of two parts of the Advowson without mention of it and if the King have but Two parts of an Advowson yet he shall Present alone for no Subject can be Tenant in Common with the King who though he be no party to a Quare Impedit yet if his Title appear clear for him against both parties shall have a Writ awarded for him to the Bishop Or if the King joyn issue in a Quare Impedit which is not found fully for him yet if a Title do any way appear the Court must award a Writ to the Bishop for him 16. A. brought Quare impedit against D. The Plaintiff counted that the Defendant had disturbed him to Present ad Vicariam de D. and shewed That the Queen was seized of the Rectory of D. and of the Advowson of the Vicarage of D. and by her Letters Patents gave unto the Plaintiff Rectoriam praedictam cum pertinentiis etiam Vicariam Ecclesiae praedict And it was holden by the whole Court That the Advowson of the Vicarage by these words doth not pass nor so in the Case of a Common person much less in the Case of the King But if the Queen had granted Ecclesiam suam of D. then by Walmsley Justice the Advowson of the Vicarage had passed 17. Although he who after the death of a Parson Incumbent hath Right of Presentation in him doth not upon a Disturbance bring a Quare Impedit not Darrein Presentment but suffereth a Stranger to usurp upon him yet he
of Advowson of a Church he may only say that he was seized as of Fee and not in his Demesn as of Fee whether it be an Advowson in Gross or Appendant which Appendancy is held to be for the most part by Prescription and must relate to such things as are in their own nature of a perpetual continuance for which reason it is That Advowsons cannot be said to be Appendant to Rents Services and the like because such things are extinguishable And although an Advowson be not properly said to be a Demesn yet it may be Appendant to a Demesn as of Lands or things Corporeal and Perpetual and therefore as supposed not to a House of habitation meerly quatenus such yet to the Soyl whereon the House is erected whereby the Law which hath the clearest prospect of Casualties at a distance hath provided that the Advowson shall stand though the House fall but an Advowson Disappendant and in Gross which in man hath alone and not by reason of any other thing but severed from the Lands to which it was Appendant such an Advowson is exempt from divers prejudicial Incidents which the other viz. the Appendant cannot well avoid And where a Subject or Common person hath an Advowson Appendant to a Mannor and there be an Usurpation upon him by a Presentation made by a Stranger whose Clerk is in for Six months though this makes the Advowson of such Common person Disappendant to his Mannor yet it is otherwise in case of the King who may grant the Advowson notwithstanding such Usurpation for a man cannot put the King out of possession either by Presentation or Usurpation as hath been Adjudged Nor doth the King's Presentation by Lapse sever the Advowson from the Mannor or cause it to become disappendant as in Gawdy's Case against the Archbishop of Canterbury and Others was likewise Adjudged in which Case it was also said by Habard Chief Justice That neither doth a wrongful Collation of the Bishops make any Disappendancy nor any binding Plenarty against the true Patron but that he may not only bring his Quare Impedit when he please but also Present upon him seven years after Also whereas it was said before That an Advowson cannot be Appendant to things Extinguishable as to Rents Services and the like so it seems at the Common Law an Advowson in Possession cannot be Appendant to a Reversion expectant upon an Estate for life for the Case was The King seized of a Mannor with an Advowson Appendant granted the Mannor to J. S. for life and then granted the Mannor to J. D. after the death of J. S. Habendum una cum Advocatione and then by Parliament the King reciting both the Grants confirmed them by Parliament yet the Advowson passed not Finally whereas also it hath been Adjudged as aforesaid that the King cannot be put out of possession either by Presentation or Usurpation this seems to refer only as to the Kings Advowson and not as to his present Presentation for the Opinion of Sir H. Hobart Chief Justice is That although the King may be dispossessed of his present Presentation he cannot be so of his Advowson and therefore he may still grant it notwithstanding the Usurpation as was Judged in a Writ of Error upon a Judgment given to the contrary between the King and Campion for the Vicarage of Newton Valence 23. A Donative in the Kings Gift may be with Cure of Souls as the Church of the Tower of London is a Donative in the Kings Gift with Cure as in the Case of Fletcher and Mackaller where Information was brought upon the Stat. 31 Eliz. of Simony for procuring him to be promoted to the Church of the Tower for money and per Curiam it well lies 24. The Queen hath the Advowson of the Vicarage of H. and grants the Vicarage to J. S. It was the Opinion of all the Justices that the Advowson passeth not for that the Vicarage is another thing than the Advowson of the Vicarage The Queen seized of a Mannor to which an Advowson was appendant granted the Mannor cum Advocatione Ecclesiae the Church being then void It was Adjudged the Avoidance did not pass but the Queen should Present pro hac vice And in the Queen and Hussie's Case it was Resolved That a double Presentation would not put the Queen out of possession if she hath Right And in Stephens and Clarks Case it was Resolved That the Grant of the next Avoidance to one during the Avoidance is void in Law CHAP. XX. Of Appropriations 1. The great Antiquity of Appropriations a Conjecture of their Original whether Charles Martell was the occasion thereof they were prohibited in England anciently by the Pope whether they can be otherwise than by the King or some Authority derived from him 2. How the End and use of Appropriations is changed at this day from what it was in the Original Institution thereof 3. Appropriators why called Proprietarii The care of R. 2. in making Provision for thé Vicar in case of Appropriations Requisites of Law to make an Appropriation 4. A further discovery of the Original use and ends of Appropriations and under what qualifications 5. Whether Appropriations were anciently grantable to Nunneries 6. Appropriations not now to be questioned as to their Original 7. A Vicarage endowed may be Appropriated but not to a Parson 8. Three considerable Points of Law resolved by the Justices touching Appropriations 9. Whether an Advowson may be Appropriated without a Succession Appropriations usually were to Corporations or Persons Spiritual 10. How a Church Appropriate may be disappropriated 11. In Appropriations the Patron and his Successors are perpetual Parsons 12. Whether an Appropriation of a Parsonage without endowment of the Vicarage be good Also whether an Appropriation may be made without the Kings License 1. IT is a question at this day undecided Whether Princes or Popes were the first Authors of Appropriations the practice whereof by each of them is of great Antiquity but whether in imitation of Charles Martell's Sacrilegious President the first by whom Tithes were ever violated in the Christian World is but a Supposition rather than any Assertion among Historians It was long since Traditionally Recorded in History that about the year 650. when the said Charles Martell Father of Pipin after King of France in defence of his Country against the Hunnes Gothes and Vandals had slain no less than 34500 of those Infidel Sarazens in one Battel he did not restore to such of the Clergy of France their Tithes as from whom under a fair pretence of supporting the charges of the War thereby he had upon a Promise of Restitution thereof so soon as the War should cease obtained the same but instead thereof gratified such of the Nobility as had assisted him in the War by the grant thereof to them and their Heirs for ever But whether this Sacriledge if it be true had
placuit 10. q. 3. Rebuff de Commenda who yet by the same Law possit expensas facere ex reditibus Beneficii Commendati sumere ex eo alimenta debita persolvere sicut is qui titulum habet c. 1. de Solutio hoc afferit Archidiac in cap. qui plures 21. q. 1. 7. The grand Case of a Commendam was that of Evans and Kiffin against Ascuth which being two daies argued by the Judges and by Noy Attorney is acutely and succinctly Reported thus viz. In Trespass Dr. Thornbury being Dean of York was chosen Bishop of Limbrick in Ireland But before Consecration or Confirmation he obtained a Patent with large words Non obstante retinere valeat in Commendam the said Deanary c. And afterwards he was chosen Bishop of Bristol and then also before Installation he obtained another Patent with a more ample Dispensation of retaining the Deanary in Commendam It was Agreed by all That the Church or Deanary c. in England shall be void by Cession if the Parson or Dean c. be made a Bishop in Ireland For the Canon Law in that is one through all the World Also Ireland is governed by the Laws of England and is now as part of England by Subordinacy Note well 45 E. 3. 19. b. Confirmation under the Great Seal of England is good in this Case Confirmation under the Great Seal of England of Presentation to a Church in Ireland of the Heir of the Tenant of the King and that a Dispensation under the Great Seal of England is good in this Case without any Patent of it in Ireland vid. 8 Ass 27. 10 E. 3. 42. An Exchange of Land in England for Land in Ireland is good Note 20 H. 6. 8 Scir fac sued in England to Repeal a Patent under the Great Seal of Ireland vid. the Irish Statute 2 Eliz. cap. 4. That an Irish Bishop may be made under the Great Seal of England Note Stat. 1 E. 6. the Irish Bishops shall be Donative by Patent of the King under the Great Seal of England yet the King may let them be chosen per Congé d'Eslire c. 1 Noy Attorney Argued at Bar and so stated the Points of the said Case by themselves If a Commendatary Dean by a Retinere in Commendam may well Confirm a Lease made by the Bishop for it is Agreed That a Commendatary Dean by Recipere in Commend cannot Confirm because he is but a Depositarius Note 19 H. 6. 16. 12 H. 4. 20. 27 H. 8. 15. a Commendatary shall be sued by that Name and by such a Commend he may take the profits and use Jurisdiction and yet is not a Dean compleat Note he may make a Deputy for Visitation but not for Confirmation of Leases Note if there be two Deans in one Church both ought to Confirm Vid. Dy. 282. Co. Inst 30. a. 2 The Second point if such a Bishop be chosen to another Bishoprick if now the first Church in Commend admitting that there was a Full Incumbent be void presently by the Election and assent of the Superiour viz. the King And it seemed to him that it was because there need not be a new Consecration and he vouch'd Panormitan 2. par 101. The Bishop of Spires was chosen Bishop of Trevers and had the assent of the Pope and that he came to Trevers and there found another in possession and he would have returned to the former Bishoprick and could not He also Cited 8 Rep. Trollop's Case That the Guardianship of the Temporalties cease by the Election of a new Bishop Note that Serjeant Henden who argued on the contrary vouch'd Mich. 4 Jac. May Bishop of Carlisle made a Lease to the Queen and a Commission issued out of the Exchequer to take it and the Dean and Chapter Confirmed it before the Inrolment of it and yet Adjudged good That Case was for the Castle of Horne First the Judges having Argued two daies Resolved 1 That all Commendams are Dispensations and that Cession commenced by the Canon and Council of Lateran 2 That the King may dispense with that Canon 11 H. 7. 12. For the Pope might and now by the Statute 21 H. 8. that power is given to the King cumulative by way of Exposition veteris and not by Introduction novi Juris and by that Statute a concurrent power is given to the Archbishop of Canterbury and may be granted to the King or by the Archbishop c. 3 That the Dispensation after Election to the first Bishoprick and before Consecration c. and also the Dispensation after Election to the second Bishoprick and before Confirmation is good enough in both Cases and he remains a good Dean to Confirm c. and afterwards the Judgment in the Case being an Action of Trespass was given accordingly 8. A Commendam is to be granted Necessitate evidenti vel utilitate Ecclesiae suadente and in the Infancy of the Church quando defuerunt Pastores they were necessary A Commendam ordinarily is but for six months and he that hath it is Custos only the other is extraordinary and that is for life and he is an Incumbent The King by his Prerogative Royal may grant a Commendam without any Statute yet if such Commendam shall be good it may be very mischievous to the Patron It is it seems agreed in the Books of the Common Law that the use of Commendams in their first Institution was lawful but not the abuse thereof and that a perpetual Commendam viz. for life was held unlawful and condemned by a Council of 700 Bishops It is likewise Reported to us That where the Incumbent of a Church was created a Bishop and the Queen granted him to hold the Benefice which he had in Commendam It was the Opinion of the Justices That the Queen had the Prerogative by the Common Law and that it is not taken away by the Stat. of 35 H. 8. 9. In a Quare Impedit brought by the King against Cyprian Horsefall and Robert Wale on a Special plea pleaded by Wale the Incumbent the Kings Attorney demurred in Law The Case in substance was this viz. the Corporation of Kilkenny being Patrons of a Vicarage within the Diocess of Ossery Presented one Patrick Fynne thereunto who was Admitted Instituted and Inducted After that during the Incumbency of the said Fynne Adam Loftus Archbishop of Dublin and Ambrose Forth Doctor of the Civil Law being Commissioners Delegates for granting of Faculties and Dispensations in the Realm of Ireland according to the Statute of 28 H. 8. cap. 16. by their Letters Dated 9 Octob. 33 Eliz. granted to John Horsefall then Bishop of Ossery That the said Bishop unum vel plura Beneficia curata vel non curata sui vel alieni Jurispatronatus non excedentia annuum valorem quadraginta Librarum adtunc vacantia vel quae per imposterum vacare contigerint perpetuae Commendae titulo adipisci occupare retinere omnesque fructus
ut nostrum de Office Archidiac Somewhat in resemblance to our Tenents by the Verge or such as are Admitted by the Rod in a Court of ancient Demesn But this Institution as practicable with us consists in the Letters of Institution directed from the Bishop or Ordinary in whose Diocess the Church is to the Clerk the Presentee by which he Admits him as lawful Incumbent to that vacant Church whereto he is Presented by the Patron thereof the said Clerk having not only first taken the Oaths of Allegeance and Supremacy with Renunciation of all Foreign Powers and Jurisdictions according to the Laws and Statutes in that behalf provided but also of Canonical Obedience to the Bishop of that Diocess and his Successors and that he hath made no Simoniacal Contract for or concerning the said Presentation whereupon the said Bishop or Ordinary doth by his said Letters of Institution constitute and invest the said Clerk Rector of the Rectory of the said Parochial Church cum cura animarum Parochianorum together with all Rights Priviledges and Emoluments belonging to the same Juribus Consuetudinibâs Nostris Estiscopalibus Ecclesiae nostrae Cath c. Dignitate honore in omnibus semper salvis Dioecesis idem significat in effectu quoad Jurisdictionem Ecclesiasticam quod Territorium quoad Jurisdictionem Temporalem Ita Andrae DD. in c. cum Episcopus de Offic. Ord. lib. 6. Dioecesis significat locum Spiritualem sicuti Territorium locum Temporalem Alberic in suo Dict. ver Dioecesis This Institution to a Benefice may not by the 39th Article of the Canons be to any person preordained except he first shew the Bishop his Letters of Orders as also if he require it a Testimonial of his former good life and behaviour Moreover by the Law he is obliged to subscribe the Articles of Religion to Swear Canonical Obedience to the Archbishop of Canterbury and his Successors and to his Diocesan and for his Personal Residence if it be a Vicarage Juram entum de Canonica Obedientia viz. Ego A. B. juro quod praestabo veram Canonicam Obedientiam Episcopo Londinensi ejusque Successoribus in omnibus licitis honestis Sic me Deus adjuvet If a Clerk should kill his Prelate to whom he hath Sworn Canonical Obedience it is Pety Treason Vid. 19 H. 6. 47. b. vid. Stat. 25 E. 3. De Prodic cap. 2. But if the Diocesan notwithstanding the exhibiting the Presentation before him or his Vicar General having power to Institute and notwithstanding Requisition made him by the Clerk Presented in order to Institution shall refuse to Institute and Admit him he may thereof enter his Complaint before the Dean of the Arches who thereupon sends his Letters to the said Bishops which Letters or Rescript is termed Duplex Querela So that as to the substance of the Premisses touching this Subject the practice with us at this day doth well nigh correspond with the Ancient Canon Law whereby it is expresly Ordained lib. 3. Decretal That all Ecclesiastical Livings and Benefices shall be had by Institution to be by the Bishop or his Chancellor or such other as hath Episcopal Jurisdiction positively declaring That without such Institution neither any Benefice is lawfully obtained nor can be lawfully retained Adding withal That Benefices void ought to be granted within Six months after knowledge of the Voidance thereof otherwise the Grant thereof devolves and comes to the Superiour and that he who doth cause or procure himself to be Instituted into a Benefice the Incumbent thereof being alive shall be deposed from his Orders Decretal ibid. 9. Albeit the Cognisance of this matter of Institutions is so properly and connaturally inherent in the Ecclesiastical Jurisdiction yet the Temporal and Common Law it seems hath in some cases took notice thereof for it is there Reported That every Rectory doth consist upon Spiritualty and Temporalty As to the Spiritualty viz. Cura animarum the Presentee is compleat Parson by Institution for when the Bishop upon Examination finds him able then he doth Institute him in these words viz. Instituo te ad tale Beneficium habere Curam animarum of such a Parish Accipe Curam tuam meam And the very Institution to a Benefice the Law understands as an Acceptance and the having of a Benefice as in that Case of Digby where it is held That if a Clerk be Presented Admitted and Instituted to a Benefice with Cure to the value of 8 l. and afterwards and before Induction he accepts of another Benefice with Cure and is Inducted in the same the First Benefice is void by the Statute of 21 H. 8. For the words of the Statute are A Parson having one Benefice with Cure c. Accept and take another c. And he who is Instituted to a Benefice is said to have Accepted a Benefice and to have a Benefice And he that is Instituted may enter into the glebe-Glebe-Lands before his Induction and hath Right to have it against any Stranger whatever And albeit by the Civil and Canon Law an Institution granted after a Caveat Entered is void yet by the Common Law it is otherwise 10. By the Institution the Parson hath only Jus ad rem he hath not Jus in re until he hath Induction and therefore if a Prebendary Parson or Vicar after he is Admitted and Instituted and before he be Inducted grant an Annuity out of his Prebend Parsonage or Vicarage and the same be Confirmed by the Patron and Ordinary or by the Dean and Chapter yet this shall not charge the Glebe or the Successor of the Prebendary Parson or Vicar for although by his Institution he hath as aforesaid Jus ad rem yet he hath not Jus in re but the charge in such case shall lie upon the person of the Prebendary Parson or Vicar and not upon the Lands 11. The Church at this day since the Statute of Westm 2. is not Full by Institution of the King and therefore if the King hath a Title by Lapse to Present pro hac vice and he Presents and his Clerk be Instituted but dies before Induction the King in that case may Present again and so it hath been Adjudged Which plainly shews that Institution without Induction doth not work a Plenarty It hath also been held That the Letters of Institution Sealed with another Seal and made out of the Diocess is good Dyer 348. Weston's Case acc enough Of if a Caveat be Entered with a Bishop and he after grant Institution yet the Institution is not void by the Common Law otherwise by the Spiritual Law Notwithstanding what was just now said it is Adjudged in Digbie's Case That a Benefice is taken received and had by Institution only and therefore a Qualification or Dispensation following comes too late So that if a man having one Benefice with Cure by Institution only accept another by Institution only without Dispensation
afterward the Pope enabled the Presentee by his Bull yet the King had a Scire facias and thereby recovered his Presentation again because the Incumbent was not capable when he was Presented 19. If the Parson or other Incumbent be Excommunicate and he so remaineth in his Obstinacy for the space of 40 daies he is for this deprivable of his Benefice and yet the Church is not void in Deed without Sentence of Deprivation given against him and if before such Deprivation the King as Supream Ordinary grant him a Dispensation he shall hold his Benefice Also Dilapidation or spoil of the Church Benefice hath at Common Law been held worthy of Deprivation which Law as it adjudgeth not the Church actually void Death excepted without a Sentence of Deprivation So though such Sentence of Deprivation be meerly wrongful yet by that Law as well as by the Canon the Dignity is void and the Sentence remaineth in force until it be reversed by Appeal and therefore if the party deprived within due time Appeal upon such Sentence of Deprivation given against him such is the nature thereof that it will hold the Sentence upon which it was first brought in suspence so that if it be brought upon Deprivation it voideth the vigour thereof and reviveth the former dignity for such Church shall not be void until the first Sentence of Deprivation happen to be affirmed in the Appeal Touching Deprivation by Statutes and Positive Laws vid. 13 Eliz. cap. 12. 26 H. 8. cap. 3. revived by 1 Eliz. cap. 31. or 3. CHAP. XXVIII Of Incumbents as also of Residence and Non-Residence 1. Incumbent who properly such why so called and what things preparatory to a compleat Incumbent 2. The Rights of a Compleat Incumbent 3. The Rights of an Incumbent's Executor as to the Glebe 4. The Resident Incumbents duty that keeps a Curate 5. Whether he be an Incumbent who is in by the Kings Presentation where the King mistakes his Title 6. Whether an Incumbent may plead as such who was not Incumbent ante impetrationem Brevis 7. Whether the Non-Residency of an Incumbent were punishable by the High Commissioners 8. How the 80 daies absence in a year shall be understood to include Non-Residency according to the Statute c. 9. The Laws in force concerning Residence and Non-Residence and who are qualified for Non-Residence 10. The Canon in the Provincial Constitutions touching the Non-Residence of Vicars on their Vicarages 11. The Form of the Oath of Residence on a Vicarage 12. Whether a Parson inhabiting in a Messuage very nigh adjoyning to the Parsonage-house which he keeps also in his own hands be a Resident within the intent of the Statute 13. What the Law requires for Residence and what are the just Causes of Non-Residence 14. An Incumbent stands charged with the Arrerages of a Pension issuing out of his Church that were behind in his Predecessor's time as well as those accruing in his own time 15. The Constitution touching the Oath of Residence as also how the Incumbent may be out of his Parish and yet be reputed as Resident 16. What shall be accounted such an Absence or Non-Residence within the Statute as to avoid a Lease made by the Incumbent 17. Indictment against a Common Informer exhibiting an Information against Two Parsons one for Non-Residence the other for taking a Farm 18. Covenants as well as Leases made void by the intent of the Statute of 13 14 Eliz. by reason of Eighty days Absence 1. INcumbent from incumbere signifying as well to possess and keep safely as to endeavour earnestly is a Clerk duly Possest of and Resident on his Benefice with Cure For the faithful discharge whereof he is to employ his study and utmost endeavour For which reason especially he is so denominated There are Four things preparatory to the being of a Compleat Incumbent 1 The Patron 's Presentation or his free Gift or Commendation of his Clerk to the Parsonage or Vicarage by writing in his favour to the Bishop 2 The Bishop's Admission of such Clerk by his allowance or approbation of him after due Examination and by making a Record of his Name accordingly 3 The Clerks Institution to such Benefice or Vicarage by the Bishops words Instituto te c. 4 The Clerk's Admission or Induction whereby he is put into Actual possession thereof by the Archdeacon's or others delivery to him of the Ring or Keys of the Church-door ringing the Bells c. And until these things be done he is not a Compleat Incumbent After which and possession Six months there is such a Plenarty as gives such a Title to that Presentation as will barr pro hac vice any others in a Quare Impedit So that those things that are to make a perfect Incumbent after Presentation had do depend upon the duty of the Ordinary as 1 Admission which requireth Examination of the Clerk whereupon sometimes ensueth Refusal and thereupon either Notice or no Notice as the case requires is to be given to the Patron 2 Institution 3 Induction Upon the Patron 's not Presenting within the time limited the Lapse incurrs to the Bishop from him to the Metropolitan and from him to the Crown where it resteth But if the Bishop take his time then is his Presentation a Collation and in the Right of the Patron himself 2. The Incumbent is that person in Law to whom the Fruits of any Ecclesiastical Benefice do belong insomuch that the Fruits taken during the vacation or vacancy of a Benefice shall be restored to the next Incumbent who stands charged to the King for the First-Fruits to be accounted immediately from and after the Avoidance or Vacancy of any such Benefice or Spiritual promotion and for that end and towards the payment of the said First-Fruits the next Incumbent shall have a restitution of the Tithes Fruits Oblations Obventions Emoluments Commodities Advantages Rents and all other Revenues Casualties and Profits whatsoever certain and uncertain belonging to any Archdeaconry Deanary Prebend Parsonage Vicarage Hospital Wardenship Provostship or other Spiritual promotion Benefice Dignity or Office growing or arising during the vacancy of any of the said Spiritual promotions and every Archbishop Bishop Archdeacon Ordinary or any other person having to his or their uses received the same that shall refuse to render and restore the same to the next Incumbent shall forfeit the treble value of what he hath so received 3. If any Incumbent happening to depart this life during the Incumbency or Plenarty shall before his death have caused any of his Glebe Lands to be manured and sowed at his proper cost and charges with any Corn or grain he may in that case make his last Will and Testament of all the profits of the Corn growing upon the said glebe-Glebe-Lands by him so manured and sown And if one be put into a Place then removed and another put in the first shall have the Tithe happening
for the avoiding of Leases made by a Parson by his Absence from his Living by the space of eighty daies in one year and also shews that one Stallowe who was Parson of Sharrington to whom these Tithes did belong and in whose Right the Defendant claimed them was Absent from his Parsonage by the space of eighty daies in one year and shews in what year and so by this his interest determined and Agreement with the Plaintiff by this made void but they found further as the Plaintiff made it to appear That Stallowe the Parson of Sharrington was not Absent in manner as it was alledged for that they found that he did dwell in another Town adjoyning but that he came constantly to his Parish-Church and there read Divine Service and so went away again They did also find hat he had a Parsonage-house in Sharrington fit for his habitation and whether this were an Absence within the Statute as to avoid his Lease they left that to the Judgment of the Court Yelverton Justice This is a good Non-Residency within the Statute of 21 H. 8. cap. 13. but not an Absence to avoid a Lease made within the Statute of 13 Eliz. cap. 20. It cannot be said here in this Case that he was Absent for he came four daies in every week and in his Parish-Church did read Divine Service Williams Justice upon the Statute of 13 and 14 Eliz the Parson ought not to be Absent from his Church eighty daies together in one year à Rectoria sua but this is not so here for he came to his Church and read Divine Service there every Sunday Wednesday Friday and Saturday and therefore clearly this cannot be such an Absence within the scope and intention of these Statutes as thereby to avoid his Lease Yelverton Justice he ought to be Absent eighty daies together per spatium de Octogin diebus ultra and this to be altogether at one time and so the same ought to have been laid expresly the which is not so done here for that it appears here that he was at his Parsonage-house and did read Prayers every Sunday Wednesday Friday and Saturday and so the whole Court were clear of Opinion that this Absence here as the same appeared to be was not such an Absence by the space of eighty daies in one year to avoid his Lease within the said Statute and so the Defendants Plea in Barr not good and therefore by the Rule of the Court Judgment was entered for the Plaintiff 17. An Information was Exhibited against Two Parsons by J. S. upon the Statute of 21 H. 8. cap. 13. against one of them for Non-Residency and against the other for taking of a Farm the one of them pleaded Sickness and that by the Advice of his Physicians he removed into better Air for Recovery of his health and this is justifiable by the whole Court vid. more for this Coke 6. par fo 21. in Butler and Goodall's Case The other pleaded That he took the Farm for the maintenance of his House and Family And this also is justifiable by the Opinion of the whole Court Crooke moved the Court for the Defendants That the Plaintiff was a Common Informer and that he did prefer this Information against them only for their vexation and so to draw them to compound with him as formerly he hath so done by others for which they prosecuted an Indictment in the Countrey upon the Statute of 18 Eliz. cap. 5. made to punish Common Informers for their Abuses The whole Court did advise them to prosecute this Indictment against him Crooke moved for the Defendants That in regard the Informer is a man of no means that the Court would order him to put in sufficient Sureties to answer Costs if the matter went against him and that then the Defendants would presently answer the Information Williams Justice nullam habemus talem legem this is not to be done but the Rule of the Court was That the Defendants should not answer the Information until the Informer appeared in person 18. In an Action of Covenant the Plaintiff in his Declaration sets forth that the Defendant was Parson of D. and did Covenant That the Plaintiff should have his Tithes of certain Lands for thirteen years and that afterwards he Resigned and another Parson Inducted by which means he was ousted of his Tithes and for this cause the Action brought The Defendant pleads in Barr the Statutes of 13 Eliz. cap. 20. and 14 Eliz. cap. 11. for Non-Residency upon which Plea the Plaintiff demurr'd in Law It was urged for the Plaintiff That the Plea in Barr was not good because it is not averred that the Defendant had been Absent from his Parsonage by the space of Eighty daies in a year for otherwise the Covenant is not void by the Statutes For the Defendant it was alledged That the pleading of the Statute of 13 Eliz. is idle but by the Statute of 14 Eliz. this Covenant is made void for by the Statute all Covenants shall be all one with Leases made by such Parsons And in this case if this had been a Lease this had been clearly void by Surrender of the Parson and so in case of a Covenant Doderidge and Houghton Justices The Statutes of 13 and 14 Eliz. do not meddle with Assurances at the Common Law nor intended to make any Leases void which were void at the Common Law and therefore this Covenant here is not made void by the Statute unless he be Absent Eighty daies from his Parsonage Coke Chief Justice agreed with them herein They all agreed in this Case for the Plaintiff and that by the Preamble of 14 Eliz. it is shewed the intent of the Statute to be to make Covenants void within the Provision of 13 Eliz. by Absence for Eighty daies And Judgment in this Case was given for the Plaintiff CHAP. XXIX Of Abbots and Abbies also of Chauntries and of the Court of Augmentations 1. Abbot what why so called the several kinds thereof and how many anciently in England 2. A famous Abbot anciently in Ireland The manner of their Election prescribed by the Emperour Justinian Anciently the Peers of France were frequently Abbots 3. The ancient Law of King Knute concerning Abbots 4. The Abbot with the Monks making a Covent were a Corporation 5. Abbots were either Elective or Presentative they were Lords of Parliament How many Abbies in England and which the most Ancient Founded by King Ethelbert 6. Chaunter and Chauntries what and whence so called their use and end 47 belonging anciently to St. Pauls in London when and by what Laws their Revenues were vested in the Crown 7. Before King John's time Abbots and Priors were Presentative afterwards Elective 8. Six Differences taken and Resolved in a Case at Law touching Chauntries 9. Certain Cases in Law touching Lands whether under pretence of Chauntries given by the Statute to the King or not 10. What the Court of Augmentations was the end
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 intânt 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 Friârds 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 Supersââtion 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
remove the Tithe which circumstance of Time and the convenience thereof is triable by a Jury and if the Parson exceed the Time the Parishioner may have his Action against him as a Trespasser ab initio And some conceive that the Parishioner is not bound to give the Parson Notice when he doth set forth his Tithe By the Civil Law the Parishioner ought to give the Parson Notice when the Tithes are set forth but it hath been Adjudged that the Common Law doth not so oblige a man But a severance of Nine parts from the Tenth part there must be for such Severance is so necessary and in a kind so essential to Tithes that they are not due nor is it Tithe within the Statute of 2 Ed. 6. until such Severance be made Yet the Parson may Grant his Tithes growing upon the Land before Severance which ought to be made by the Owner of the Land for though the property of Tithes set out by the Owner of the Land belongs to the Parson yet it is otherwise if they be set out by a Stranger And in case the Land be not in any Parish then the King shall have the Tithe thereof by his Prerogative and by the Custome of England But where Lands in themselves Tithable are not manured or ploughed specially in prejudice to the Parson in such case he may notwithstanding Sue the Occupier thereof in the Spiritual Court for the Tithes of that Land But if the Parishioner duly sets forth and severs the Tithe in convenient time and after Dammage happen to him by the Parsons not taking the same away in like convenient time in that case the Parishioner may have his Action on the Case against the Parson 7. The Common Law of this Realm takes notice of Tithes by the word Dismes Decimae of the French Decimes signifying Tithe or the Tenth part of all the Annual Fruits either of the Earth or of Beasts or Mans labour and industry due unto God and consequently to him that is of the Lords Lot and hath his share by his special appointment It signifieth also the Tenths of all Spiritual Livings yearly given to the Prince called a perpetual Disme which anciently were paid to the Pope until Pope Vrban gave them to K. Richard the Second to aid him against Charles the French King and such others as upheld Clement the Seventh against him as aforesaid It signifieth likewise a Tribute levied of the Temporalty But here it is to be understood as Quota pars omnium bonorum licite quaesitorum Deo Divina Institutione debita which though according to the Canon Law is a Tenth of Annual and lawful Encrease commanded to be paid to the Sons of Levi for their maintenance in consideration of their Ministry yet at the Common Law it is an Ecclesiastical Inheritance collateral to the Estate of the Land and of its own nature due only to Ecclesiastical persons by the Ecclesiastical Laws The Practice whereof never met with any considerable interruption in any Age until Charles Martel's Sacrilegious Infeudations of Tithes about the year 650. which usher'd in such a President into the Christian World as could never to this day grow obsolete and out of use Notwithstanding from the beginning it was not so nor did any Lay-persons pretend to Tithes originally nor legally till the Statutes of Dissolutions of Abbies made them capable thereof whereby the Tithes appropriated to such Houses of Religion as were dissolved became a Lay-Fee and Suable by the Laity in the Kings Ecclesiastical Courts 8. Where in the Books of the Common Law it is Reported That before the Council of Lateran every man might give his Tithes to what Church he pleased and might have bestowed them upon what person he thought best there it is also asserted for reason That before that Council there were no Parishes nor Parish-Priests that could claim them But by a Canon made in that Council every man is since compellable to pay his Tithes to the Parson or Vicar of that Parish where the Tithes arise Here may arise a question Whether there were not Parishes long before any Council at Lateran For admitting that the Second Lateran Council was held in the year 1120 as S. Tho. Ridley computes it or that the general Council of Lateran was held in the year 1179 as Sir Simon Degge calculates it yet there seems of be a division into Parishes some Centuries of years before either of these For it is said That Cities and Countries were divided into several Parishes by an Ordinance of Pope Dionysius about the year 266 and from him derived into this and other Realms Also that Ecclesiastical persons first in this Kingdom made Divisions of Parishes as appears by our own Chronicles and that the first Practice thereof came from Honorius the 4th Archbishop of Canterbury after Augustine who died in the year 693 And such as have followed the course of Antiquity in this matter conceive that the original of Parishes had its President from the practice of some Ancient Roman Bishops it being as some would have it recorded in the Pontifical of Damasus but in Anastasius's Bibliothecar it is found That when Peter had appointed and ordained Priests c. and Cletus had reduced them to a certain number Pope Euarist assigned to each of them his Parish and as to the time when those Parishes were assign'd by Euarist it must be about the beginning of the second Century which was many Centuries before the C. of Lateran as also was the practice thereof here in England by Honorius as aforesaid the truth whereof is approved by Cambden But Cavendum c. saith Marsil in his Book De Red. Eccl. c. 12. heed must be taken as to the word Parish for it is equivocal having various acceptations as sometimes when nothing is named but a Parish the whole Diocess is understood which notion of the word often occurs in the Councils in which sense Barbatia spake a wide word for the Pope in his Tract de praest Card. when he said that in respect of his Holiness the whole world was but one Parish Sometimes a Parish is taken for such a part of the Diocess as was assign'd to some Priest arbitrarily sent and maintained by the Bishop to whom such a Parish paid all their dues and he to his Clergy about which time this custome was introduced that all Church-dues should be at the Bishops disposal to be divided into four portions whereof he should haveâ part for himself another for his Clergy a 3d for the Poor and Strangers and the 4th to be reserved to the Parishioners for the repairing of Churches the collection of which dues was committed to the care of the Chorepise from which Quadripartite division probably came that custome whereby the Bishop of every Diocess might before the C. of Lateran make distribution of the Tithes within his Diocess where he thought convenient
Canterbury to whose Archbishop it was directed Lindw c. nuper Abbates de Decim And in the Second Lareran Council holden An. 1120. being nigh 60 years before that abovesaid it was Decreed by the said Innocent 3. That the Religious persons viz. the Cistertians Hospitallers Templers and those of St. Johns of Jerusalem which by the Popes Paschal and Adrian were exempted from payment of Tithes should pay the same unto the Parochial Incumbents whereby a Parochial Right of Tithes is settled by a Lateran Council 11. At the Common Law it seems a Parson cannot make a Lrase Parol of his Tithes but may discharge them per parol for in Bellam's Case against Belthrop it was Ruled by Doderidge Jones and Whitlock Justices That where the Defendant in a Trover and Conversion of certain Loads of Fetches justified under the Lord Clare by a Demise per parol for Tithes of Grain for one year made in April that the Lease was not good but altogether void but the Parson may discharge the Parishioner of Tithes per parol or Lease the Rectory consisting of Glebe and Tithes per parol for years 12. In Skelton's Case against the Lady Airie it was said that it was Adjudged Mich. 34 35 Eliz. That a perpetual union of the Parsonage and the Land charged is a sufficient discharge of the Tithes and a Prescription may be well enough to be discharged of the payment of Tithes as it appears by a Case put in the Archbishop of Canterbury's Case Coke lib. 2. G. Crook Counsel è contra conceived that a perpetual Unity was no perpetual discharge and said there was no Judgment given in the Case cited before he also cited 10 H. 7 or 6. where the manner of Tithing is set down he also cited the Bishop of Winchester's Case Coke lib. 2. also the Prior of D. to be Resolved in 40 Eliz. That a Copyholder may Prescribe to be discharged of Tithes by pleading That he was alwaies Tenant by Copy to a Spiritual Corporation and he said That it was Adjudged in Sheddington's Case That if a man Prescribe to be discharged of payment of Tithes by reason of payment of another kind of Tithe that this is not good 13. The Parson of D. Covenanted with one of his Parishioners that he should pay no Tithes for which the Parishioneâr Covenanteth to pay to the Parson a certain Annual Sum of money and afterwards the Tithes not being paid the Parson sued him in the Ecclesiastical Court and the other prayed a Prohibition And it was agreed That if no Interest of Tithes pass but a bare Covenant then the party who is sued for the Tithes hath no remedy but a Writ of Covenant And the better opinion of the Court in this Case was That this was a bare Covenant and that no Interest in the Tithes pass 14. In Warner's Case against Barrett in the Ecclesiastical Court it was said by Richardson That before the Stat. of Ed. 6. the proper Suit for Tithes was there and if they allow not one Witness to prove payment a Prohibition shall be granted And he put Morris and Eaton's Case in the Bishop of Winchester's Case where it was Ruled if the Spiritual Court will not allow that Plea which is good in our Law a Prohibition lies as in case of Tithes 15. It was moved for a Prohibition because a Parson had Libelled against a Parishioner for Tithe-wool of Rotten-sheep which he ought not to have because he shall have Tithe for the same thing at Shearing-time afterwards as where Tithe is paid for the Cuttinâs of Grass it shall not be afterwards paid for the After-math It seemed otherwise to Doderidge and Jones because it is for the same thing there but here the Parson hath no recompence for the Wool And Jones said That if the Parishioner sell Sheep the Parson shall have allowance of the Tithes thereof after the shearing and upon this point a Prohibition was denied Secondly there is a Custome that if a Parishioner hath three Calves he shall pay a peny for the Tithe thereof if seven Calves then one Calf The Parson sued for one Calf because the Parishioner had three one year and four another and for that he had no Tithe for the first three And thereupon a Prohibition was granted 16. In Huddleston and Hills Case it was said That if a man Sue in the Ecclesiastical Court for Tithes of Headlands the Defendant may have a Prohibition but he ought then to suggest That they are but small Headlands and that there is a Custome of Discharge in consideration that he paid Tithes in kind of Meadows And in this case Williams said That if a man keep Sheep in one Parish until shearing time and then sell them into another Parish in this case the Vendee shall pay the Tithe-wool to the Parish where they were depastured in the greater part of the time of the growing of the Wool And in the Case of one Nicholas and W. Ward it was agreed That Tithe Lamb and Wool was included within Small Tithes 17. In Banco Regis a Prohibition was prayed because a Parson had Libelled in the Ecclesiastical Court for the Tenth part of a Bargain of Sheep which had depastured in the Parish from Michaelmass to Lady-day and the party surmized that he would pay a Tenth of the Wool of them according to the Custome of the Parish But the Prohibition was denied for as Doderidge Justice said By this way the Parson shall be defrauded of all if he shall not have his Recompence for now the Sheep are gone to another Parish and he cannot have any Wool at this time because it was not the time of shearing Nota per Whitlock de animalibus inutilibus the Parson shall have the Tenth part of the Bargain for Depasturing as Horses Oxen c. But de animalibus Vtilibus he shall have the Tithe in specie as Cows Sheep c. 18. The Rector of the Church of D. Libelled in the Ecclesiastical Court for the Tithes of a Riding-Nagg where the Case was That a man lett his Land reserving the running of a Horse for some time when he had occasion to use him there The Desendant shewed this matter in the Court by his Council and prayed a Prohibition and abetts that for the same Land in which the Horse went he paid Tithes And by the Court nigh London a man wil take 100 or 200 Horses to Grass now he shall pay Tithes for them otherwise the Parson shall be deseated But in this Case if the Desendant alledge and prove that it was a Nagg for labour and not for profit a Prohibition lies 19. In the Case of Bowry against Wallington where W. had Libelled in the Ecclesiastical Court against B. for the Tithes of Wool and Lamb and B. upon suggestion of a Modus Decimandi obtained a Prohibition and had an Attachment and declared upon it
and are at issue upon the Modus which is found for the Defendant and Consultation granted whereupon Judgment was given in the Ecclesiastical Court against Bowry upon which B. appealed and prayed a new Prohibition and Noy moved for a Consultation because that a Prohibition and an Attachment upon it are but one Suit for the Contempt of the party in bringing his Suit in another Court and translating this from the Kings Court and when it is once Tried for the Desendant the same thing shall not be Tried again Note That in this Case upon the Statute of 50 E. 3. 4. it was agreed by the Court That a Prohibition awarded and afterwards Consultation granted that upon the same Libel no Prohibition shall be granted again but if there be an Appeal in this Case then a Prohibition may be granted but with these differences 1 if he that Appeâls pray the Prohibiâion there he shall not have it for then Suits shall be deferr'd in infinitium in the Ecclesiastical Courts 2 if the Prohibition and Consultation were upon on the body of the matter and the substance of it for otherwise he shall be put many times to try the same matter 20. The Lord Rich was seized of Hadley Park and of all the Tithâs thereof and payed for the Tithes but one Buck in the Summer and a Doe in the Winter for 30 years past The Park was disparked and turned into arable Land and the Parson would not receive this Fee-Buck and Doe but would have Tithe-Corn and thereupon sued in the Ecclesiastical Court and he brought a Prohibition And Catlin said That âe need not pay other Tithes but Buck and Doe for although they be not Tithable yet may they be paid by Composition and he may not take them but they arâ to be delivered to him And in like manner Partridges and Pheasants in a Garden are not Tithable yet may they be paid in lieu of Tithes and shall be brought dead to the Parson and although there be no Park yet may he give a Buck out of another Park and perhaps it may be made a Park again 21. The Case was A Church in which there had been a Parson and Vicar time out of mind and the Parson used to have the Great Tithes and the Vicar the Small and for the space of forty years last past it was proved that the Parson had Tithes paid him out of a Field of twenty acres of Corn and now the Field is sowed with Saffron and the Vicar sued for the Tithes of Saffron in the Ecclesiastical Court and the Parson had a Prohibition Coke I conceive the Parson shall have the Tithes for by the Statute of 2 H. 6. it is Enacted That Tithes shall be paid as hath been used the last forty years and this hath been alwaies Tithable to the Parson and although the ground be otherwise employed yet the Parson shall have the Tithes And so was it in Norfolk in the case of a Park where the Parson prescribed Pro modo Decimandi to be paid 3 â 4 d. for all Tithes arising out of the said Park and although the Park was afterwards converted to Arable yet no other Tithes shall be paid Popham It hath been adjudged otherwise in Wâoth's Case in the Exchequer But the Law is clearly as hath been said and the difference is when the Prescription is to pay so much money for all Tithes or when the Prescription is to pay a shoulder of every Buck or a Doe at Christmas for there if the Park be disparked Tithes shall be paid for Tithes are not due for Venison and therefore they are not Tithes in specie And I conceive that Tithes of Saffron-heads shall be comprehended under Small Tithes and although the Tithes of this Field have been paid to the Parson yet it being converted to another use whereof no gross Tithes do come the Vicar shall have the Tithes And so if arable Land be converted into an Orchard the Vicar shall have Tithes of the Apples and so if the Orchard be changed to Arable the Parson shall have Tithes Quod Fenner concessit 22. In one Hawkin's Case Libel was in the Ecclesiastical Court for Tithes for Lambs for seven years And there he proved payment by one Witness and a Prohibition was granted for Non-allowance of that Proof 23. On the Stat. of 2 Ed. 6. c. 13. for setting out of Tithes the Case was this Corn was set out âor Tithes and the Owner of the Land took the Corn Dammage feasant but in the Declaration it is not shewn how long the Corn remained on the ground And by the Court it is not good inasmuch as it doth not appear that the Owner of the Land had any Dammage at all for he doth not shew how long the Corn remained on the ground And the usual course in such cases is if Tithe be set out and the Parson take it not away in due time the party shall have an Action on the Case By the Court a man cannot distrain Shocks of Corn but he may distrain a Stack Dammage feasant But in this case it is not shewn how long it remained on the ground and therefore it doth not appear that he was damnified And so after the Tithe is clearly set out the Parson may by the Statute have an Action of Trespass if any take them away but if only a meer Stranger set out the Tithe that settles no property in the Parson so as that he cannot have any Action for the taking thereof away 24. It seem'd clear to Noy that if Two persons have portions of Tithes by halves in one Parish the Stat. of Ed. 6. that appoints Tithes to be set out doth not in that case oblige the Parishioner to divide the Tithes by halves and to set out their parts singly but the Parishioner ought only to set out the Tenth insomuch that if the Tithe be of one Lamb the Parishioner cannot divide it And it hath been Adjudg'd that the Parishioner is not bound to divide the Tithe into Moities but the Parsons shall divide it between themselves 25. Noy surmized against a Libel for Tithe-Sheaves that the Parishioners are at the charges to bind the Corn in Sheaves and for the better dividing thereof they use to make it up into Sheaves and when it is made into Shocks they put thereof into a Stack for the Tithes And for that the Parishioners have been at this pains they have used to be discharged of Tithes for the odd Sheaves when they will not make a Stack Adjudg'd a good Custome and a Prohibition was granted because the Parishioners therein do more than of Common right they are obliged unto 26. The Case touching Tithe of Glebe-Land Reported as aforesaid by Leonard to be between Stile and Miller is the same with that Reported by Owen to be between Stile and Miles misprinted But the Case was this Stile Parson did suggest
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 Proâse 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. âor 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
alter not the Prescription And he cited a Cause which was in this Court argued at Barr and afterwards at Bench between Cooper and Andrews Mich. 10 Jac. Rot. 1023. for the Park of Cowhurst Vid. 32 E. 1. Fitz. Avowry 240. 5 E. 2. Fitz. Annuity 44. 20 E. 4. 14. 14 E. 4. 4. But this Case was adjudged for the Plaintiff Quod stet Prohibitio and that which is by the name of Park is for the Land and is annexed to the Land by the name of Park if the Prescription had been to pay a Buck or a Doe out of the Park then it would alter the Case But it is general and had been paid also after the Park disparked And the Case of Cooper and Andrews was a shoulder of every third Deer that was killed in the Park and two shillings in money and that Case was never Adjudged 32. V. brought Trespass against T. Clerk Vicar of A. for taking Bona Catalla and count for the taking of two Carectac glaci Anglicè Wood And upon Not guilty pleaded the Jury gave this Special Verdict viz. for the Moity of a Load of Wood Si videbitur Curiae quod Decimae glaci ne sunt Minutae Decimae then the Defendant Not guilty but Si sunt Minutae Decimae then he is Guilty This Case was argued at Barr by Bridgman and Henden Serjeants And the Court Vnement agreed That for ought that here appears this Verdict being found without any Circumstance that this Wood shall be taken to be Minutae Decimae It was agreed by Henden That if it had been found Wood growing in a Garden then Minutae Decimae And it was agreed by the Court That it might have been so found that it should be Majores Decimae and Praedial as if all the profits of the Parsonage consist of such Tithes And so of other things which in their own nature are Minutae may become Majores if all the profit of the Parish consist therein As in some Countries a great part of the Land within the Parish is Hemp or Lime or Hâps there they are Great Tithes and so it may be of Wool and Lambs Pasch 3 Jac. B. R. in Beddingfield's Case Farmer to the Dean and Chapter of Norwich who had the Parsonage Impropriate and had used to have Tithes of Grain and Hay and the Vicar had the Small Tithes And a Field of 40 Acres was planted with Saffron and it was Adjudged That the Tithes thereof belong to the Vicar There was a Case in this Court as it was vouched by Henden 3 Jac. between Potman a Knight and another And the Question was for Hops in Kent and Adjudged that they were great Tithes but as for Hops in Orchards or Gardens these were Resolved to belong to the Vicar âs small Tithes There was a Case in this Court for Tithe of Weild which is used for Dying and that was in Kent and it was sown with the Corn and after the Corn is reaped the next year without any other manurance the said Land brings forth and produces Weild And that was a Special Verdict whether the Vicar shall have the Tithe of it or the Parson but one of the parties died before any Judgment And if Tobacco be planted here yet the Tithes thereof are Minutae Decimae And all these new things viz. Saffron Hops Weild c. if it doth not appear by material Circumstances to the contrary shall be taken as Minutae Decimae And so this Case was Adjudged for the Defendant 33. In the Case of a Prohibition in case of a Libel in the Ecclesiastical Court for the Tithes of Cattels the Plaintiff alledged that those Cattel of which Tithes were demanded are for his Dairy and for the Plough and Winch being only present said That the Parson shall not have Tithes of such Cattel but if he breed up Cattel to sell it is otherwise Secondly the Plaintiff in the Prohibition alledged That time beyond memory the Parishioners had paid a halââââor the Tithe of a Calf and a peny for a Cow and that upon a day limited they use to bring this to the Church and to pay this to the Vicar and now the Vicar had Libelled in the Ecclesiastical Court against them to compel them to bring it home to his housâ And Winch said That this is no occasion of a Prohibition for they agree in the Mâdus but vary in the place of payment and this is not matter of substance and for that reason no Prohibition will lie 34. B. brought a Prohibition against C. and alledged that the Dean and Chapter of D. was seized of the Mannor and the Defendant being Vicâr sued in the Ecclesiastical Court to have Tithes and shewed that time beyond Memory c. they had held that Discharged of Tithes for them and their Tenants and that they lett that to the Plaintiff And it was moved by Henden Serjeant That the Dean and Chapter are a Body Politick and Temporal which are not capable of this Prescription in non Decimando Coke 2. the Bishop of Winchester's Case Hobart said That the Dean and Chapter are a Body Spiritual and are annexed to the Bishop throughout all England and if the Bishop is capable of that as it is plain he is then the Dean and Chapter is also capable of that which was granted by Hutton but Winch doubted for he said That he-may be a Lay-man and for that the Plaintiff ought to averr That he is a Spiritual person Hutton confessed That the Dean may be a Lay-man as was the Dean of Durham by special License and Dispensation of the King but that is rare and a Special Case and is not common and general and therefore not to be brought as an Example which was also granted by Hobart Chief Justice and upon that day was given over to the Defendant to shew cause wherefore the Prohibition shall not be granted 35. A. Libelled against W. in the Ecclesiastical Court for the Herbâge-Tithe of young Cattel sâil for a peny for every one And Hitcham moved for a Prohibition and said that he ought not to have Tithes if they are young Beasts brought up for the Cart or Plough And so it hath been Adjudged As it a Parson prescribe to have Tithes for Hedgingstuff he cannot because that preserves the Land out of which he had Tithes and then a Parson Libels for Tithes of an Orchard for that it was a young Orchard and the Custome of the place was to pay 4 d. for an Orchard Hitcham said There is not any such difference between old and new Orchards for iâ the Custome be that he shall pay 4 d. for every Orchard it will reach to the new Orchard And then he Libels for a Hearth-peny for the Wood burnt in his house Hutten said The Hearth-peny is more doubtful for it is a Custome in the North parts to give an Hearth-peny for Estovers burnt for
which he prescribes to be free of every thing which comes to the Fire And in some parts by the Custome they had Pasturage for the Tenth Beast or the Tenth part of the Gains which is Barren for the time But he and Yelverton who only were present That no Tithes are due for them without Custome Hitcham They also will have Tithes for a thing before it comes to perfection which would be Tithable afterwards But I agree if he fells them before they come to perfection then the Parson shall have Tithes But by Hutton and Yelverton there may be a Custome to have every year a peny for them Sed adjournatur c. 36. A. Libels in the Ecclesiastical Court for Tithes of Fisâ which is due meerly by Custome and the Defendant pleads That time out of mind c. they have paid no Tithes of that And Henden Serjeant moved for a Prohibition And Richardson Replied and said It is meerly a Customary Tithe as Rabbits c. whereof no Tithes are due by the Law of the Land and a Prohibition shall not be granted But all the other Justices affirmed That there shall be a Prohibition granted because that the Custome ought to be tried at the Common Law and they make a difference between Modus Deâimandi which is also Customary and where there is a Tithe precedent due and that Modus converts it into another duty There no Prohibition shall be granted but it shall be Tried in the Ecclesiastical Court whether there be such a Modus Decimandi or not and that Case in the Custome makes the Duty it self But if he alledged the Modus to be for two pence and the Parson for three pence it shall be tried by the Common Law And they said That so was the opinion in the grand Case of Lead-Ore And Hutton said That so it was determined in the Case of one Berry for Tithes of Lime-kilâs which are as Minerals and are not Tithable by the Common Law But when the Custome is tried then they in the Ecclesiastical Court may proceed upon it 37. A Parson Libells in the Ecclesiastical Court for Tithes of Pidgeons and Acorns And the Defendant prayed a Prohibition because the Pidgeons were spent in his own house and the Acorns dropt from the Tree and his Hoggs eat them And it was said by the Court Acorns are Tithable 11 Rep. 49. but then they ought to be gathered and also sold And a Prohibition was clearly granted 38. B. Farmer of a portion of Tithes for five years without Deed Demises a Farm which he had in the same Parish to F. for years and afterwards he Libells against him in the Ecclesiastical Court for the Tithe of that Farm And F. said he was not Farmer And Henden prays a Prohibition for that 1 That the Lease for Tithes is without Deed but he may be Discharged of his own Tithes without Deed as was Adjudged before in this Court. 2. The Lessee is not to pay Tithes for the Farm for although the Parson makes a Lease of the Glâbe for years he paid Tithes But if a Lay-man who had the Impropriation Leases the Glâbe the Lessee does not pay Tithes But the Court denied the Case of the Lease of the Parsonage Impropriate and said That the Case of Perkins and Hinde was Adjudged to the contrary in that very point And also if he purchase other Lands in the Parish which are discharged of Tithes in his hands and he Demises them yet the Lessee pays him Tithes And the Opinion of the Court was If one contract with the Parson for Discharge of the Tithes of his Lands for years and Demises his Lands to another yet he shall not have Tithes but the Discharge runs with the Land But if one take a Lease of his Tithes by Deed and makes a Demise of his Land he hath Tithes of the Lessee And the Direction was That the Lessee of the Farm ought to shew expresly in the Ecclesiastical Court that the Farmer had not a Lease by Deed and a Prohibition was granted And it shall be Admitted That the words of the Libel being Firmator Conductor Occupator was good 39. W. against S. in a Prohibition in which S. Libels for Tithes of Hay And W. suggests for a Prohibition That he used to pay the Tithe for Hay inspecie in consideration whereof he used to be Discharged of all Doles Green-skips and Headlands not exceeding the breadth that a Plough or a Team might turn about the Lands And Henden moved for a Consultation for that it is said about c. that is circa terras arabiles when the truth is there are Skips at the side of Lands as broad as the Lands themselves and then he would be discharged of them also whereas it ought to be at the end of the Headlands only Richardson said That in arable Lands inclosed Pasture is at the end and at the sides which is mowed and yet discharged of Tithes But the Court in respect there was a Prohibition granted said That he ought to joyn Issue or Demurr upon the Declaration 40. The Earl of D. had a Mannor in the Parish of C. which extended to L. where there is a Chappel of Ease and the Vicar of C. Libels for Tithes in the Ecclesiastical Court against one of the Tenants of the Mannor And Henden moved for a Prohibition for that that the Earl prescribed That he and all his Tenants should be acquitted of all the Tithes of Land within L. paying 10 s. per ann to the Chaplain of L. And he said that such a Prescription is good as it was Adjudged in Bowles Case And a Prohibition was granted 41. In Comin's Case it was agreed by the Court That a Forest in the hands of a Subject shall pay Tithes and it was agreed that in the hands of the King it is Priviledged And by Henden Davenport and Atthowe Serjeants It is only his personal Priviledge which extends to the Lessee of the King but not to the Feossee And it was agreed That where the right of Tithes comes in question between a Parson and the Vicar who are both Ecclesiastical persons it shall be Tried by the Ecclesiastical Court But Richardson said the Books make a doubt where it is between the Servant of the Vicar and the Parson But it seemed to him to be all one 42. N. and D. Plaintiffs against H. Vicar of S. in a Prohibition the ãâã was for Wood employed in Hedging and for Fire-wood Issue was joyned That there was in the Parish a great quantity of Land inclosed and that they used to take Wood for Hedge-boot and Fire-boot and they were discharged of Tithes in consideration that he paid Tithes in kind of Hay and Corn c. And it was found for the Defendant Crawley moved That a Consultation cannot be granted for that that they ought to be acquitted of Tithes for those of Common Right and
for that although Prescription was alledged it is nothing to the purpose Atthowe For Fire-wood it was proved that Tithes alwaies was paid Richardson there is no doubt but the discharge also ought to be by Custome and to be grounded upon Modus Decimandi Yelverton and Crook otherwise that it is not upon Modus Decimandi but by the Common Law and the Reason is for that that when a man is Owner of Arable Land and he pay Tithe-Milk and Corn and for that they are discharged of things consumed in the House which are to make Masters and Servants fit to manure the Land c. Richardson said It is seen that it shall alwaies be Discharged in consideration it is alledged how a small Consideration will serve Crook It is not Modus Decimandi but the Discharge is for that that the Parson hath by them a benefit for he had by them better means of Tithes Hutton If a man had a House of Husbandry and Demises all the Land but the House he shall pay Tithes for them absumpt in the House Crook Not. No profit is made by them to the party but the Parson had a benefit by him And a day was given to search Presidents 43. A Parson Libels for the Tithes of young Cattel preserved for the Cart and the Question was whether in such Cases a Custome ought to be surmized And Crook F. N. B. is That of right Tithes shall not be paid for such things Richardson In all such Cases the Parson ought not to have Tithes if there be not a Custome alledged by which the Parson had any thing or Recompence or by which his other Tithe is better And he said That he had searched the Books and the Book of Entries and there is not any such Case but some Surmize is made as for that that he had Tithe of Corn in specie where the Land is enclosed and so the Corn better Hutton It ought to be Tried whether the thing in his nature be Tiâhable or any Usage to discharge it or not as the Cattel are in their nature Tithable then you cannot prohibit it but the Usage ought to be surmized so And it may be Law as the Parson had better Tithes Harvey If a Libel be for Tithes of Hedging and Fencing there a Surmize ought to be made to discharge that But when it is for Tithes of Heifers which in apparency ought to be spared by the Law of the Land otherwise it is c. Richardson for the Herbage of those Heifers Tithe is due by the Ecclesiastical Law and we never can take Tithe of them without express Custome or other Recompence Harvey there was a Case 16 Jac. C. B. A Paâson sues for the Herbage of Horses and the Parishioner alledged That he kept them for the carrying of Coals there he ought to surmize something to be Discharged and if he alledge That he kept them in his House for serving of Husbandry the other may alledge That he kept them to carry Coals and the Allegation is Traversable Richardson There was a Case where the Question was A Husbandman keeps a Horse to ride up and down about his business Whether he shall pay Tithe for the Herbage of him and a Prohibition was in that Case granted but a Surmize ought to be made Crook said That in the Kings Bench he had twenty times seen a Prohibition granted in such Cases without any Surmize And a Libel is for dry Cattel if it be alledged That they are kept for the Plough the other may alledge That he keeps them to sell without that that he keeps them for the Plough And before there is any profit of them it is not reason that they should be Tithable and the Parson shall have the benefit for them after And for Hedging it is Lex terrae that he shall pay no Tithes Richardson It is Lex terrae ne consuetudo loci facit legem terrae And if he had used to pay Tithes for the Cattel or for Hedging he ought not to pay that still If an ignorant man will pay Tithes for those things and after upon a Libel a Prohibition is granted if the other does not alledge a Custome the Prohibition shall stand or if they alledge a Custome which is âound against him no Consultation shall be granted And for a Garden-peny the reason of that is apparent for otherwise Tithes shall be paid in specie And so for Hearth-peny if he had alwaies paid it it ought to be paid Hutton If a man had an Ancient Garden for which he paid a peny and that is enlarged of that enlargement Tithes ought to be paid in specie 44. A. Libels against B. in the Ecclesiastical Court for the Tithes of two Pecks of Apples and for Feeding the Cattel upon the ground The Defendant for the Apples answered That there were Two pecks only growing in his Orchard and that they were stoln and never came to his use and for the Cattel That they were Ancient Milch-Beasts and that they growing old were dry And that for a month they depastured with other Heifers and that after they put them in a Meadow out of which the Hay was carried and afterwards he fed them with Hay in his House Atthowe Because that the Answer was not admitted prayed a Prohibition Hutton If Apples are upon the Trees and taken by a Stranger shall the Parson be hindered of his Tithe Yelverton If I suffer one to pull my Apples the Parson shall have Tithes but if they be taken by persons not known the Parson shall not have Tithes of them which was granted For they are not Tithable before plucking and for that if he suffer them to hang so long by negligence after the time that they are imbelized by Yelverton he shall pay Tithes For the second matter it was Agreed by the Court and for the depasturing in the Meadow and for the Hay with which they were fed afterwards Tithe shall not be paid because that the Parson had Tithes of them before But if the question be for the Tithes when they went with the other Heifers by Crook that is no cause to excuse the Tithe Harvey If I have Ten Milch-kine which I purpose to reserve for Calves and they are dry the Parson shall not have Tithe for their Pasture but if I sell them by which it appears I kept them for Fatting there Tithes shall be paid And Hutton agreed That although there was so small a time that they went with the Heifers yet Tithes shall be paid for their pasture during that time 45. In Walsingham and Stone 's Case it was said by Hutton That a Parishioner compounding for his Tithes for his life was not good without Deed. And it was said by Yelverton that the use in the Kings Bench is That if a Defendant in a Prohibition dies his Executors may proceed in the Ecclesiastical Court and it may be a
Rule for the Judges in that Court to proceed also And then the Plaintiff may if he will have a new Prohibition against the Executors c. 46. In Norton's Case Finâh Recorder said de Communi jure for Estovers burnt in an House Tithes ought not to be paid by the Common Law there was not any Tithes paid for Wood And although the Statute of 25 E. 3. gives a Prohibition for Timber yet Vnder-woods were discharged of Tithes Vid. Dr Stud. 171. It is express that Estovers are not Tithable because they are not renewing every year and it is parcel of the Inheritance for to destroy all the Underwoods is Waste c. Dawley's Case was Resolved for the Wild of Sussex and Mich. 13 Jac. B. R. in the Case of Porter and Dyke for the Wild of Kent of the same Prescription Resolved to be good and so is the Common Experience that a whole County may Prescribe so And the reason is for that by the Common Law it was not due but by the Constitution of Winchelsey Lindwood 104. it was Ordained to be paid for then the Prelates imputed a great Pestilence that then was for the negligence of paying Tithes and appointed Tithes of Wood. And the Commons were desirous to have the Statute of Sylva c. otherwise explained than the Clergy declares it for they say that they ought not to pay Tithes of any Wood that is of the growth of ten years Hutton Wood is Tithable in their nature and then there may be a Custome to discharge them And the Case of Hearthpeny cannot be answered for if he Sues for the peny a Prohibition shall not be granted quod concessum fuit per Crook Yelverton But of things not Tithable Tithes of them cannot be sued without alledging a Custome Crook It is known that Hearthpeny is good by Prescription This Case is when there is not Land belonging to the House so that the Parson is not answered for his Tithes another way But when there are Ten Servants kept for the maintaining it then by the Law of the Land it appears that Tithes ought not to be paid although Custome had been alledged it is nothing to the purpose As if a Custome be alledged to pay 4 d. for every Acre in discharge of Tithes and the Verdict find 3 d. no Consultation shall be granted Hutton the Herbage of Barren Cattel is Tithable because there is a Custome which discharges those that are for the Cart. And he said That the Custome only makes that Legem terrae And he cited Dr. Grauut's Case He Libels for Tithes of a House and the party brought a Prohibition and alledged Modum Decimandi c. And it was alledged in Arrest of Judgment that Houses were not Tithable de Communi jure and yet a Consultation was granted c. 47. A Case between Stone and Walsingham having been formerly in the Court touching Tithes the Case was again moved in Court which was that they agreed de anno in annum so long as the one should be Parson and the other Parishioner Si ambabus partibus tam diu placuerit he should retain his Tithes for 6 s. 8 d. per An. And Richardson Justice said and it was not denied That the Suggestion is naught for the uncertainty of it and a Prohibition cannot be granted upon that For the words de annâ in annum make an Estate for a year and the next words make an Estate for Life and the last words but an Estate at Will and what shall be Traversed here It appears that for Years it is good without Deed but not for life and if it be but at Will when the other demands his Tithes the Will is determined But at another day the Suggestion was made That he made several Agreements with his Parishioner that he pay 6 s. 8 d. for his Tithes for four years And then a Prohibition was granted Harvey sufficit If an Agreement be proved for these four years 48. Sâât moved for a Prohibition That whereas he had twenty Acres of Wheat and had set out the Tenth part for Tithe the Defendant pretending that there was a Custome of Tithing that the Owner should have fifty four Sheaves and the Parson five and so he sued for Tithes for that there was no such Custome And the Court said That the Modus decimandi must be sued for as well in the Ecclesiastical Court as for the Tithe it self And if it be allowed between the parties they shall proceed there but if the Custome be denied it must be tried at the Common Law For if it be found for a Custome Consultation must be granted if not then the Prohibition is to stand 49. Napper against Steward the Parson had a Prohibition against divers of his Parishioners that Libelled in the Ecclesiastical Court to make Proof by Witness of divers manner of Tithing in perpetuam rei memoriam 50. A Prohibition for H. against E. Farmer of the Rectory of S. and prescribed That all Tenants and Occupiers of Meadow had used to cut the Grass and to straw it abroad called Tetting and then gathered into Wind-rows and then put it into Grass-Coâks in equal parts without any fraud to set out the Tenth-Cock great and small to the Parson in full satisfaction as well of the first as of the latter Math Upon Traverse of the Custome it was âound for the Plaintiff and exception was taken That the Custome was void because it imports no more than what every Owner ought to do and so no recompence for the two Maths But the Court gave Judgment âor the Plaintiff for Dismes naturally are but the Tenth of the Revenue of any Ground and not of any labour or Industry Where it may be divided as in Gross it may though not in Corn and in divers places they sât out the Tenth acre of Wood standing and so of Grass And the Jury having found his Form of Tithing there it is sufficient and the like Judgment upon the like Custome was in the Kings Bench. Pasch 2 Jac. Rot. 191 or 192. inter Hall Symonds 51. In Johnson's Case if a Prohibition be granted upon matter at Common Law as upon a Personal Agreement between Parson and Parishioner for his Tithes and not upon matter within the Stat. of 2 E. 6. 13. the Suggestion shall not be Proved within the Six months as the Statute limits and as it is Agreed by the whole Court 52. The Defendant here in the Prohibition Libels for Tithes of Hay in the Ecclesiastical Court The Plaintiff suggests that the Hay was growing upon Greenskips Deals and Headlands and that there is a Custome that the Parishioners in a Meadow there used to make the Tithe-Hay for the Parson and in consideration of that to be discharged of all Tithes of Hay growing ut supra and also that for the Hay of the Land no Tithe ought to be paid of such Hay but does
not averr that that Hay was growing upon Greenskips c. And an Exception was taken by Henden 1. That the Exception is double the Custome and the Common Law And by Yelverton That is not material for you may have twenty Suggestions to maintain the Suggestion of the Court but Richardson was against that that a Suggestion might be double here for the Suggestion of the Common Law is a Surplusage As in Farmer and Norwich's Case here lately One Prescribes to be discharged of Tithes where the Law discharged him and so was discharged by the Common Law Second Exception is That he doth not apply the Custome to himself in the Suggestion for he that lays the Custome does not shew that the Hay grew upon the Skips upon which a Plough might turn it self and for this cause by the whole Court the Suggestion is naught And here Richardson moved how that Two should joyn in a Prohibition Yelverton If they are joyned in the Libel they may joyn in the Prohibition and that is the common practice of the Kings Bench. Richardson The wrong to one in the Ecclesiastical Court by the Suit cannot be a wrong to the other Hutton They may joyn in the Writ but they ought to sever in the Declaration to which Harvey agreed Yelverton The Prohibition is the Suit of the King and he joyns tant as in a Writ Richardson But it is as the Suit of the party is and if any joyn here I think good cause of a Consultation It is against the profit of the Court to suffer many to joyn And it is usual in the Case of Customes of a Parish in debate to order Proceedings in the two Prohibitions and that to bind all the Parish and Parson And it was said by them all That the Consideration of making Hay is a good Discharge because it is more than they are bound to do 53. F. sued V. for Tithes of Hay which was upon Land that was Heath-ground and for Tithes of Pidgeons And by Richardson If it was meer Waste-ground and yield nothing it is excused by the Statute of payment of Tithes for seven years But if Sheep were kept upon it or if it yield any Profit which yield Tithes then Tithe ought to be paid As the Case in Dyer And for the Pidgeons which were consumed in the House of the Owner he said and for Fish in a Pond Conies Deer it is clear that no Tithes of them ought to be paid of Right wherefore then of Pidgeons quod nemo dedixit And a day was given to shew cause wherefore a Prohibition should not be granted And the Court agreed That it was Felony to take Pidgeons out of a Dove-house And afterwards a Prohibition was granted but principally That the Pidgeons were spent by the Owner But by Henden They shall be Tithable if they be sold 54. P. the Vicar of Eaton in the County of Oxon Sues C. the Parson Impropriate in the Ecclesiastical Court in Oxford pro Minutis Decimis C. sues a Prohibition against the Vicar upon a Surmize of a Prescription P. comes and pleads the first Endowment made An. Dom. 1310. by which the Minute Tithes were allotted to the Vicar C. demurrs and Adjudged for the Plaintiff for the Parson cannot Prescribe against the first Endowment 55. In Debt upon the Stat. of 2 E. 6. for not setting out of Tithes the Plaintiff declares That the Defendant was seized of the Lands in question within that Parish and that the Tithes did belong to the Parson and Vicar viz. Two parts to the Parson and the Third part to the Vicar or their Farmers payable in specie for 40 years last past that the Plaintiff was Farmer proprietary of the Tithes to the Parson and Vicar spectant and shews the value of the Tithes due and demands the treble value the ââândant pleads Niâil debet per patr and it was found for the ãâã It was now moved in Arrest of Judgment because the Plaintiff ought to have brought two Actions as the Parson and the Vicar ought for their several parts But Resolved that the Action is well brought for it is a Personal and one entire Debt for one wrong 56. Bott sues a Prohibition against Sir Edward B. and suggests That the Defendant is Parson Impropriate of W. and that time out of mind there hath been a Curate of an Incumbent by the appointment of the said Rector who administred the Sacraments c. And that the Custome of that Parish time out of c. was that the Curate should have ãâã Tenths renewing within that Parish except Decimas graââââm which were paid to the Parson and that every Parishioner who had so paid the Tenths to the Curate was discharged against the Parson And that notwithstanding that c. Sir Edward B. had sued him c. And now he prays a Prohibition and had it but after that Surmize was adjudged insufficient without Argument by the Court and a Consultation granted for such Curate cannot Prescribe against his Master that may remove him at his pleasure And for that reason it was not a good Prescription for the Parishioners 57. Goodwin being Vicar sues in the Ecclesiastical Court the Dean and Chapter of Wells bâing Parson of a Church for a Pension and they pray a Prohibitionâ and it was denied For that Pension is a Spiritual thing for which the Vicar may Sue in the Spiritual Court Note that they entitle themselves to that Parsonage by a Grant of H. 8. who had it by 31 H. 8. of Dissolutions 58. It was said by Hutton in Spencer's Case That by the Civil Law the Parishioner ought to give notice to the Parson when the Tithes are set forth But it was adjudged That the Common Law doth not so oblige a man 59. B. by his Deed Compounds for Tithes and after Sues for them in the Ecclesiastical Court by Popham and Gawdy That an Action upon the Case lies Vid. E. 4. 13 Mich. 4 Jac. The Lady Waterhouse was sued for the Tithes of Trees whereof none were due c. there an Action upon the Case does not lie for the Parson or person may well be ignorant of what things are due otherwise he Sues against his own knowledge 60. To have a Prohibition the Surmize was That the Inhabitants of D. of which he is an Inhabitant have paid un mod decimand c. And they were at Issue and he proved only that he himself had paid it and yet well And no Consultation for every particular is included in the general and proved by it And it appears sufficient matter for a Prohibition and to oust a Spiritual Court of their Cognizance 2 Agreed that where the Statute appoints Proof of the Surmize to be by Two it is sufficient if Two affirm that they have known it to be so or that the Common Fame is so 61. Upon a Surmize by a Parishioner That he had Compounded
not power to meddle with them 2 It was Resolved That a Reservation by a Lessee for life who Leases for years to A. is not sufficient to bind him in Reversion to pay Tithes according to that rate 3 That a Rent for half a year and afterwards for another half year is a yearly Rent within the meaning of the Decree And note as the same was last Lett is not intended last before the Decree but before the Demand of the Tithes 71. It was found upon a Special Verdict That the Parson of the Parish makes A. Collector of Tithes and that A. had Licensed a Parishioner to carry away his Corn without setting âorth of Tithes By the Court clearly that License is void vid. 5 E. 3. 63. Plow 104. That a Collector of Rents cannot make an Acquittance and discharge them And a Consultation was awarded 72. Baron and Feme Lessees of a Parsonage c. The Parishioner sets forth the Tithes fraudulently and presently takes them away again as it appears upon the Evidence And the Husband only brought the Action upon 2 Ed. 6. for the treble Dammages And it was Resolved That Debt lies for treble Dammages upon such a fraudulent setting forth of Tithes although that the clause of Treble Dammages speaks nothing of Fraud But 2 it was Resolved That the Husband and Wife ought to have joyned in the Action because it is not a thing in possession And if the Husband dies the Wife shall have the Dammages and not the Executor of the Husband 73. A Prohibition was prayed upon a Surmize That the Tithes for which the Suit was belonged to the Vicar and not to the Parson By the Court That a Consultation shall be granted for the Right of Tithes is confessed And whether they belong to the Parson or the Vicar that is meerly Spiritual And that so it was Ruled in one Bushel's Case the Parson of Pancras and in one Milbray's Case it was Adjudged accordingly 74. By the Court That a Prohibition shall not be granted upon a bare Surmize that he is sued for Tithes by the Parson of D. of Lands in the parish of S. unless it appears in the Pleading in the Spiritual Court For they there shall not be Judges of the bounds of the Parish Vid. 5 H. 5. 10. 22 E. 4. 24. 75. A Prohibition was pray'd upon a Suit in the Ecclesiastical Court for Tithes in kind of a Park now converted into Tillage upon a Surmize de Modo Decimandi to pay a Buck and a Doe for all Tithes And allowed by the Court and agrâed 1 Although they are Ferae naturae yet they may be given for Tithes So to pay Pheasants c. 2 Although they are not Tithable of themselves yet they may be given for Modus Decimandi As a great Tree may be given for Tithe of Trees tithable 3 That that is a discharge of the very Soil and a Park is not but a Liberty and the Owner may furnish it with Game when he please But after a Consultation was granted because the Surmize was not proved within the Six months So Adjudged Hill 6. Jac. C. B. The Vicar of Clare in Suffolk who sued for Hops And there also a Prohibition was granted upon such a Surmize But after a Consultation was granted in that Case For the Modus Decimandi was alledged for Discharge of Tithes of Hay and Herbage and not of all Tithes where the Libel was for Tithes of Hops And Coke Chief Justice vouched one Shibden's Case That such a Modus Decimandi generally for the Park is not good if it be disparked But it shall be particularly for all Acres contained in the Park 76. Upon a Surmize to have Prohibition after Sentence at the Ecclesiastical Court Two Judgments were vouch'd upon the Statute 2 E. 6. for not setting forth of Tithes And 43 Eliz. B. R. a Parishioner privately sets forth his Tithes and takes witness of it and immediately after he carries them away that is not a setting forth within the Statute For the words are truly justly and without fraud or covin Vid. 10 H. 4. 2. 2. 44 Eliz. B. R. Bâkâr's Case A Parishioner sells his Grain upon his Land and after by the command of the Vendee he takes his Corn being severed without setting forth of the Tithes That the Parson may well have an Action against him upon the Statute and shall not be compelled to Sue the Vendee who it may be was not known to him And it is not Traversable if the Tithes were set forth according to 47 Eliz. It was Resolved in Trin. 7 Jac. B. R. in Brickendine's Case against Denwood 77. If a Vicar hath used by Prescription time out of mind c. to have all the Tithes within the Parish except Corn which the Parson appropriate used to have viz. of Hay and also of Hops from the time it came into England which was in the time of H. 8. and of Woâd which is a Dying plant and moreover Rape-seed is sown there in the Parish where never any such Seed was sown before nor in England till of late times yet the Vicar shall have the Tithes of that Rape-seed and not the Parson appropriate for that it is within the Prescription although it be a new thing and therefore could not be prescribed singly and for that the Parson is excluded of all except the Corn 78. If Doubt arise de Decimis Garbarum as what shall be intended by Garba it is said that Garba at the Common Law signifies at this day a Sheaf of Corn and the Civilians say Garba signifies such a thing as is bound together in one bundle 79. In the Case between Reynolls and Green it was Adjudged by the Court That Wood in its own nature is Great Tithes notwithstanding if a Vicar be endowed de Minutis Decimis and by virtue of the said Endowment had of a long time used to have Tithe of Wood not exceeding the yearly value of 6 s. 8 d. the usage of Wood shall pass by the words de Minutis Decimis in that case by reason of the small value thereof 80. Where a Parson had Two parts of the Tithes and the Vicar of the same place had the Third and they by several Leases had demised the Tithes to one In this Case the whole Court except Justice Fenner held That although the Parson and Vicar could not joyn in this Case in a Suit of Tithes because they claim them severally by divided rights yet when both their Tithes are conjoyned in one person viz. the Lessee then the interest of their Title is conjoyned also in one who made but one Action for the whole Tithes in that case yet it was agreed by all the Judges that the Plaintiff-Lessee should recover his Tithes in dammages and shall not demand them again in any Suit after a Recovery in this Action 81. It was Agreed by the
whole Court of Kings Bench Mich. 5 Jac. and hath many times been Ruled That if a man sell his Tithes for years by word it is good but if the Parson agree that one shall have his Tithes for seven years by Word it is not good by the opinion of Flemming Chief Justice because iâ amounts to a Lease and he held strongly That Tithes cannot be Leased for years without a Deed. 82. Upon the Statute of 2 Ed. 6. cap. 13. âor Setting out of Tithes in a Prohibition to stay proceedings by a Parson in a Suit in the Ecclesiastical Court against one of his Parish for hindering of him in his way in the Carriage of his Tithes The whole Court agreed in this That if a Parson hath his usual way stop'd that so he cannot come to take away his Tithes being set out for him he may well sue for this in the Ecclesiastical Court and there have his remedy But if the Question be whether the Parson be of right to have a way viz. one way or another this is Triable by the Common Law and not in the Ecclesiastical Court but if the Parson have a certain Way granted to him and set out by the Common Law if he be at any time disturbed or hindered by any of his Parishioners or by any other in the use of this his Way he may then in such case well sue in the Ecclesiastical Court for his remedy And the words of the Statute of 2 Ed. 6. cap. 13. are That if any Parson be disturbed stopped or hindered in the carrying away of his Tithes so that the Tithe comes to be lost hurt or impaired in this case he may sue in the Ecclesiastical Court for his Remedy and upon due proof there made thereof he shall recover double value of the Tithe so taken or lost besides his cost and charges of Suit But because in this principal Case the Parson sued in the Ecclesiastical Court for the Right of his Way whether he was to have that Way or not which belonged properly to the Common Law and not Triable there in the Ecclesiastical Court for this cause the Court granted a Prohibition to stay their proceedings in the Ecclesiastical Court A ABby-Lands were five waies priviledged or discharged of Tithes viz. by Composition Bull or Canon Order Prescription and Unity of possession of Parsonage and Land time out of mind together without payment of Tithes It is supposed that no Land which belonged to Abbots Priors c. is at this day discharged of Tithes but such as came to the Crown by the Statute of 31 H. 8. c. 13. All Monasteries under Two hundred pounds per Aâ were to be dissolved by the Statute of 27 H. 8. But those of 200 l. per Ann. or upwards not till the 31 of H. 8. The Unity aforesaid or perpetual Unity is where the Abbot Prior c. time out of mind have been seized of the Lands out of which the Tithes arise and also of the Rectory of the Parish in which the Lands lie Which Unity as to a discharge of Tithes must have these four properties 1 It must be Justa as to the Title 2 Perpetua or time out of mind 3 Aequalis that is a Fee-simple both of the Lands and Rectory 4 Libera or Free from the payment of all manner of Tithes whatsoever In a Case where an Abbot held a Pârsonage Impropriate which was discharged of Tithes and had purchased Lands so that the Tithes were suspended in the hands of the Abbot and afterwards the Possessions of the Abbot coming to the King by the Statute of 31 H. 8. The Question was Whether the Lands so purchased by the Abbot before his Surrender to the King were discharged of the Tithes It was the Opinion of Mr. Plowden in that case that they were not discharged for that no Lands were discharged but such as were lawfully discharged by right Composition or other lawful thing and in the said Case the Lands were not discharged in Right but suspended only during the time that they were in the Abbots hands Acorns or Mast of Oak shall pay Tithe for they are of Annual increase as in Lifoâd's Case These Acorns or Mast are known in the Law by the word Pannagium so Lindwood Pannagium est pastur Porcorum in Nemoribus Sylvis ut puta de glandibus aliis fructâbus arbârum Sylvestrium quarum fructus aliter non solent colligi Lindw de Decim c. Sancta Ecclesia verb. Pannagiis And Mr. Skene de verb Sign defines this to be a Duty given to the King for the pasturage of Swine in his Forrests Also Pannagium is taken for the money which is paid for the Pannage it self as appears by the Statute of Charta de Foresta cap. 90. Vnusque liber homo c. Aftermoath or Second Moath Of this Tithes shall be paid de jure unless there be a Special Prescription of Discharge by paying the Tithes out of the first Moath and then it shall be discharged But if a man pay Tithe-Hay no Tithes ought to be paid dâ jure afterwards for the pasture of the same Land for the same year for he shall not pay Tithes twice in one year for the same thing for that the After-pasture is but the Reliques of Hay whereof he had paid Tithes before Nor shall Tithes be paid for Agistments in such After-grass In Johnson and Awberie's Case it was Resolved that Tithes are not to be paid for the After-pasture of Land nor for Rakings of Corn And where in Awberies Case Suit was in the Ecclesiastical Court for the Tithe of the After-mowings of Grass anâ upon a Surmize That the Occupiers of the Land had used to make the first Cutting of the Grass into Cocks for Hay and to pay the Tenth Cock thereof in satisfaction of the First and After-mowings a Prohibition was awarded So that After-grass or After-pasture or Aftermoath do not pay Tithes where they have paid before of the Grass of the same ground the same year save where by Covin to defraud the Parson more Grass is left standing than was wont to be or is there usual Nor is the Herbage of Cattel which eat up that Grass Tithable unless there be some Fraud in the case Notwithstanding the Premisses although the Aftermoath be not Tithable where the Owner at his own costs charges and labour made the first Grass into Hay yet Q. whether it may not be otherwise where the Owner doth no more than cut down the Grass of the first Moath Agistment that is a taking into Grass the Cattel of Strangers within the Parish where the Grass grows this is Tithable and regularly by the Owner or Tenants of the Land not of the Cattel unless the Custome makes it Tithable by the Stranger Heretofore there was not any Tithe paid for this Agistment but now the Law is taken to be otherwise And is
as aforesaid to be paid by the Owner not of the Cattel but of the Land Under this Notion of Agistment is also comprehended the depasturage of Barren Cattel whereof comes no profit to the Parson the Quota of which Tithes is regulated by the Annual value of the Land the Number of the Cattel or the Time of the Pasturing according to the usage and custome of the place yea though the Cattel be bred for the Plough or Pail to be employed out of the Parish where they are Agisted and by one that is no Inhabitant within the Parish Tithes shall be paid for the Agistment of such Cattel But for profitable Cattel as Oxen Horses or Beasts of the Plough employed and used in the same Parish no Tithes shall be paid for the Agistment thereof But if Cattel or Horses be bought not for any Husbandry in the same Parish but to be sold again Tithe shall be paid for the Agistment thereof and a fraudulent employment of them in the Parish to defeat the Parson of his Tithes will not prevent the same A. sued a Prohibition against B. Parson of D. because he Libelled in the Ecclesiastical Court for Tithes for Agistments the Plaintiff pleaded That he had alwaies paid 12 d. for every Milch-Cow going in such a Pasture and for this payment he had been discharged of Tithes for all Agistments in that Land In this case it was said That this payment of money for Milch-Beasts should not discharge him from the payment of Tithes for other Beasts In the Case of Lacie against Long the suggestion for a Prohibition was That Parson sued in the Spiritual Court the Owner of the Land for Tithes of Cattel which he took to Agistment where he ought to sue the Owner of the Cattle It seemed reasonable to the Court that the Suit was well brought against the Owner but be it quomodocunque it belongs to the Spiritual Court to determine whether the one or the other ought to be Sued therefore for that reason as to that point a Consultation was granted per Curiam Vid. Pasture Agreement No Parson can by any Agreement made with his Parishioner bind his Successors but being made with him for his Tithes during only the Parsons life this is good And an Agreement only by Word without any Deed may be good made by the Parson with his Parishioner that he shall keep his Tithes A Parson contracted with A. his Executors and Assigns for 10 s. to be annually paid him by the said A. his Executors and Assigns That he his Executors and Assigns should be quit from the payment of Tithes for such Lands during the life of the Parson A. paid the Parson 10 s. which he accepted of and made B. an Infant his Executor and died The Mother of the Infant took Letters of Administration durante minori aetate of the Infant and made a Lease at will of the Lands The Parson Libelled in the Spiritual Court for the Tithe of the same Land against the Tenant at Will In this Case it was said That the Agreement did oblige the Parson during his life and although the Assignee could not sue the Parson upon the Contract yet he should have a Prohibition to stay the Suit in the Ecclesiast Court and put the Parson to his Remedy for the 10 s. upon the Contract for that he could not have Tithe in kind by reason of the Composition made If a Parson agree and contract with one of his Parishioners that he shall keep back his own Tithes if that be made after that he hath sown his Corn and for the same year only in that case the Agreement shall be good And if the Parson sue in the Ecclesiastical Court for the said Tithes the Parishioner shall have a Prohibition but if it be for more years than one or before the Corn is sowed this shall not be good by Coke and Foster against Warburton and Coke said it was so Adjudged in B. R. in Parson Booth's Case That a Contract made with a Parishioner for keeping back of his Tithes for so many years as he shall be Parson was not good and so it was Wellow's Case here also But it was Agreed by them all That such a Contract or Agreement for the Tithes of any other was void but only of the party himself who was party to the Agreement and that ought to be made by way of keeping them back Vid. 20 H. 6. 21 H. 7. 21. b. Tithes cannot be granted without Deed It was Agreed by the Justices in Bugg and Woodward's Case That an Agreement between a Parishioner and the Parson that in consideration of twenty shillings per An. he should hold the Land discharged of Tithes during the life of the Parson was not good to ground a Prohibition upon for that the Grant of Tithes cannot be without Deed The like in Hawks and Bryafield's Case in stay of Suit for Tithes in the Ecclesiastical Court it was Surmized That A. was seized of a Messuage and Lands in the Parish of D. and agreed with the Defendant being Parson in Consideration of Ten pounds to be yearly paid by A. to the Defendant during their Joynt-lives and his continuing Parson in satisfaction of all Tithes growing upon the same Lands that he should hold the Lands without payment of Tithes Resolved it was not a sufficient Surmize to ground a Prohibition For an Agreement to be discharged from payment of Tithes for one year by word may be good but such an Agreement during the life of the Parson cannot be good without Deed Alms or Things appointed for Alms are not Tithable Animalia Vtilia such as Cows Sheep and the like shall pay Tithes in kind Animalia Inutilia as Oxen Horses and the like though Tithe cannot be paid thereof in specie yet for their depasturage or what bargain is made for the same Tithes shall be paid Apples Suit in the Ecclesiastical Court for the Tithe thereof in discharge whereof an Award or Arbitrement was there pleaded and the plea refused notwithstanding which a Prohibition was denied B BArk of Timber Trees is not Tithable but is priviledged together with the Trees Barren Ground which is suapte natura Barren is not Tithable but if Tithe-Wool and Tithe-Lamb have by Thirty years been paid for it and after by Manurance is made Fertil then for the first Seven years such Tithe shall be paid for it as was paid before Therefore Barren Heath or Waste-grounds naturally Barren and not Manurable without extraordinary charge may pay Tithe of Wool Lamb or the like but being converted into Tillage shall pay no Tithe of Corn or Hay for the first Seven years after such improvement during which time it shall pay only such Tithe as was formerly paid Otherwise it is if it became barren only by ill Husbandry Or if it became Barren by some accident of Inundation or overgrown with Bushes and after reduced
again to Fertility in that case it shall pay Tithes presently Also marsh-Marsh-Lands newly gained from the Sea and Fenn-Lands gained from the Fresh waters by Drayning c. are not within the Statute of 2 Ed. 6. c. 13. to be freed from the payment of Tithes during the first Seven years after the gaining thereof Likewise if Land be gained from the Sea and that by great cost and expence and afterwards turned to Arable-Land it was the Opinion of the Court that it shall pay Tithe notwithstanding the Costs because it is not Barren Land of it self but only by accident and so not within the scope and intention of the Statute of 2 Ed. 6. In the Case between Strowd and Hoskins upon a Prohibition Two Points were Argued by the Four Justices viz. 1 When a Prohibition is brought upon the Statute of 2 Ed. 6. to stay a Suit in the Ecclesiastical Court for Tithes of barren-Barren-Lands the first Seven yearsâ it behooves the party who brings the Prohibition to prove his Suggestion within Six months otherwise a Consultation by the said Statute is grantable 2 When a Consultation is granted for the Reason aforesaid yet the party may have a new Prohibition upon the same Libel for that the Statute of 50 Ed. 3. doth not extend to a Consultation granted upon non-probate of a Suggestion within Six months but where a Consultation is granted upon the matter of a Suggestion And so the Chief Justice declared the Opinion of the Four Justices and thereupon a Rule given That the Prohibition should stand and the Defendant notwithstanding such Plea aforesaid in Barr of the Prohibition may plead in chief to the matter of the said Suggestion and if he will dispute it then he shall have several Consultations on the said Libel Thus as aforesaid in a Prohibition for Tithes it was said by Papham Chief Justice That if Lands be overflown with Water and afterwards gained by Industry Tithes shall be presently paid although it had been overflown time out of mind for those Lands of their nature were not barren and the Statute of 2 Ed. 6. doth not intend that Tithes shall not be paid within seven years but of such Lands as were meerly Barren and made good by Foldage or other industrious means And so it was Adjudged Pasch 14 Jac. B. R. in the Case between Witt and Buck in a Prohibition upon the Statute of 2 Ed. 6. cap. 13. the Clause touching Barren and Heath-ground of which after improvement no Tithes to be paid the space of Seven years next after the Improvement For a Prohibition it was shewed That this Land for which the Parson Libelled for Tithes was Marsh and Sandy Land and covered with Salt water so that time out of mind no Grass had been known there to grow nor any profit at all made of this until now of late time by and with the great costs charges and industry of the Tenant this ground had been lately gained from the Sea and from its overflowing by repairing and making new Banks and Sea-walls and by continual repairing of them and so he had now converted the same into Arable Land where he had Corn and of this Land the Parson Libels for Tithes in the Ecclesiastical Court And upon this matter thus shewed a Prohibition prayed being to be discharged from payment of Tithes of this Ground for Seven years this Statute being thus made for the encouragement of Tenants to make improvement of their Lands Coke Chief Justice It was Resolved in one Farrington's Case upon this Statute of 2 Ed. 6. that Wood-ground is not Barren ground within this Statute This was there Adjudged That if one do stock and grub up Wood-ground and after convert this into Arable ground he hath by this meliorated his Land but with great cost and labour yet he shall pay Tithes for this ground presently for that Heath and barren-ground intended to be within the Statute ought to be such Land as is suapte natura sterilis and Barren Dederidge Justice A Salt Marsh if this be fenced and so made good Meadow shall pay Tithes presently yet before this was so fenced no Tithes thereof payable Coke This Land shall be out of the Statute out of the clause of Discharge for Seven years notwithstanding this charge the Tenant hath been at in gaining this Land from the Sea for to have this Land within the clause of Discharge within the Statute it ought to be Suapte natura Barren which here it is not but by accident and by the overflowing of the Sea The whole Court agreed in this That by this Statute Barren ground is such ground as will not bear Corn of it self without very great cost in the extraordinary manuring of it and therefore that this is no such Barren ground within the Statute as ought to be discharged from payment of Tithes but that Tithes ought to be paid for the fame and that the Parson had just cause to sue for his Tithes in the Ecclesiastical Court and therefore the Prohibition was denied Beech-Trees regularly are Tithable yet in a County where there is a scarcity of Timber and where Beech is used as Timber for Building or the like there possibly they may be discharged of paying Tithes and therefore in Trin. 38 Eliz. it was Resolved That Tithes shall be paid of Beeches although they are above twenty years growth for they are not Timber Yet in Holliday and Lee's Case in a Prohibition it was Resolved That Tithes should not be paid of Beeches of above twenty years growth And in Pindar's Case it was also Resolved That Beeches above twenty years growth being Timber shall not pay Tithes yet in a Countrey where there is plenty thereof they are not to be accounted Timber or Tithe-free So that Beeches in their own nature are not computed Timber-trees and therefore Tithable except where by the Custome of the Countrey where there is scarcity of Wood they are accounted Timber-trees in which case they are not Tithable The Judges of the Common Law have Resolved That all sort of Wood that is usually employed for the building of Houses Mills c. are Gross Woods and within the Statute of 45 Ed. 3. cap. 3. of which sort are Oak Ash Elme Beech Horse-Beech and Horn-bean against the opinion in Molyn's Case as also in Man and Somerton's Case where it was said by Tanfield Justice That Beech by the Common Law is not Timber and so he said it was Adjudged in Cary and Pagett's Case and in that case it was holden That Tithes shall not be paid for Beech above the growth of twenty years in a common Countrey for Wood as in Buckinghamshire for there it is reputed Timber but in a plentiful Countrey of Wood it is otherwise for there it is not Timber and Tithes shall be paid of it as Sylva caedua for which Tithes shall be paid under the growth of 20 years Bees pay not Tithes by the Tenth
Swarm but by the 10th measure of Honey and the Tenth weight of Wax and are Predial Tithes Birch-Trees are Tithable though above 20 years growth and therefore in Foster and Leonard's Case in Attachment upon a Prohib for Suing for Tithes of Great Wood against the Stat. of 43. Ed. 3. it was Resolv 1. That of Birch Tithes shall be paid for that they are not such Wood as the Stat. intended as serving for Building 2. That Oak and Elm cut down before the age of 20 years shall pay Tithes for till they are of that age they are not of that value as the Law regardeth for the purposes aforesaid Also in Foster and Peacock's Case it was Resolved That for Birch above the age of 20 years growth Tithes should be paid Bricks are not Tithable as was Adjudged in the Case betwixt Liff and Watts Broom for Fuel spent in the Parish is not Tithable but if sold it shall pay Tithes unless the Owner can prescribe or prove a Custome of Tithing Milk or Calves of Cattel kept on that ground but regularly Tithe is not due of Broom spent for Fuel in the Parishioners house within the Parish C CAlves are computed among the Mixt Tithes which with Colts Kidds c. are within the number of Tithes in kind the Parson must have the Tenth thereof whenever it comes if there be no Custome to the contrary for it is a good Modus Decimandi for Tithes of Calves to pay a Calf for Tithe if he hath Seven in one year and if under Seven then to pay a halfpeny for every Calf for Tithes and if he fell any Calf he shall pay the Tenth part of the price Calves as also Lambs are Tithable when they are Weanable and able to live without the Dam if they be sold the Parson hath for the most part the Tenth peny in most places unless something be in the Custome against it Also the Tithe of Calves Colts c. is to be apportioned with respect to the places where they were engendred brought forth and nourished but Custome must prevail Cattel kept only for the Plough and Pail pay no Tithe also no Tithe shall be paid for the Pasture which is eaten by the Oxen of the Plough or by the Cattel of the Pail Mich. 9 Jac. Baxter Hope per Curiam No Tithe shall be paid for Horses of the Plough for the Parson hath the benefit of their labour in the Tithes of the Corn. Tithes are not due for the young Cattel which a man rears for the Plough for they are for the manuring of the Land whereof the Parson hath the Tithes M. 14 Jac. B. Watley Hanberry Resolv Prohibition granted Mich. 14. Jac. B. R. Joyse Parker Resolv Prohibition granted Trin. 12 Jac. B. R. Maschal Price per Curiam No Tithes are due for the young Cattel which a man rears for his Dairy dict Cas Joyse dict Cas Kneebon Prohibition granted If a man according to the Custome of the Countrey sow his Land to feed his Horses for Tillage and the usage be to suffer the Horses to feed upon that Land without any other meddling therewith the Parson shall not have any Tithes thereof for it is nothing but Pasture for such Horses If a man buy or breed Cattel seed them and sell them he shall pay Tithes thereof otherwise if he buy or breed them feed them and spend them in his own house Nor shall a man that feeds Sheep on his Land and after kills and eats them in his own house within the Parish pay any Tithes thereof If a man buy or breed Barren Cattel as Oxen and Steers and after sell them he shall pay Tithes for their Pasture for they cannot yield any other Tithes otherwise it is of Barren Sheep as of Weathers for they can yield Tithe of their Wool If a man keep Horses which are Barren Cattel to sell and he sell them accordingly he shall pay Tithes thereof But it was Resolved in Facy and Long 's Case That Tithes shall not be paid of any Cattel eaten in the Parishioners Family no more than for Cattel reared for the Plough and Pail Cattel therefore or Beasts for the Plough or Pail are not Tithable otherwise in case they be only kept for such use till they be ready for the Plough or Pail and then sold away in such case they shall pay Tithe being so sold for profit And if they stray from one to another side of a Common belonging to two Parishes no Tithe is payable for this to the Parson of the Parish where the Cattel do stray And as Dry Cattel though bred for the Plow are Tithable if they be sold away before they are put to that use so also are Fatted Cattel if they be sold or killed for the House but according to the Custome of the place Likewise for young Cattel as Calves Lambs Colts Piggs c. where their Dams are removed from one place to another a Rate-Tithe is payable to the Parsons according to the times of their abode in the several places from the times of their engendring by the Month-Rate Also Cattel Tithable feeding in any waste place not commonly known to be in any Parish are Tithable to the Parson of the place where the Owner of the Cattel doth dwell But if Cattel do feed one half of the year in one Parish and the other half year in another Parish the Tithe shall be equally divided between the two Parsons of both Parishes so proportionably for a greater or less time provided it be the space of a Month or 30 daies but of any less time than a Month no Tithe is payable If Cattel be pawned or pledged the Gagee shall pay the Tithe of them because he is Owner of them for the time but if a man Bail Cattel or other goods to Re-bail Tithes of them shall not be paid by the Bailee because he hath no property in them but only a Rebailer Chalk and Chalk-pits are not Tithable Cheese paying Tithe exempts the payment of Tithe-Milk whereof the Cheese is made Et è contra So that Cheese is not Tithable where the Milk is Tithed Et vice versa Therefore to prescribe to pay the Tenth Cheese between May and August for all Tithe-Milk within the year and not the Tenth part of the Milk may be a good Prescription And where Milk is Tithed in kind there no Tithe-Cheese is due In which case as in all others of Tithing the Custome of the place is to be observed Cherry-Trees in Buckinghamshire have been adjudged Timber and Tithe-free Chicken of all Tame-Fowl are Tithed in kind according to the Custome of the place No Tithe shall be paid of Chicken for that there is paid Tithe-Eggs and Prohibition granted Hill 15 Jac. B. R. Resolved Clay is not Tithable Clothes Fulled in a Fulling-Mill pay no Tithes Coles are not Tithable therefore a
Prescription de non Decimando as to that is good No Tithes shall be paid de jure for Cole Hill 14 Jac. B. R. per Houghton Common of Estovers or the Wood which a man burns in his house doth not pay Tithes Composition Real is one of the waies or means whereby Tithes may be discharged It is where the Incumbent Patron and Ordinary by Deed or Fine do agree that such Lands shall for ever be freed and discharged of all manner of Tithes paying an Annual payment or doing some other thing for the profit or advantage of that Parson or Vicar to whom the Tithes did belong from which Compositions all Prescriptions de Modo Decimandi have or should have had their Original But these Real Compositions so as to oblige the Successor of the Parson or Vicar that made the same seem now to be restrained by the Statute of 13 Eliz. cap. 10. whereby they are prohibited from making any Grant for above 21 years or three Lives and that with the accustomed yearly Rent reserved And if the Parson or Vicar make any Composition with his Parishioner without his Patron and Ordinary it shall bind only for the Parsons life and during his Incumbency This Composition is either between Parson and Parishioner or inter Clericos if it be between Parson and Parishioner and it be touching Tithes past the Composition is good though it were without any Consideration at all but if it be touching Tithes to come it may be good as to a payment of Tithes only in part but not good as to a non-payment of any Tithes at all nor is it good in part without the Bishops approbation and confirmation If the Composition be inter Clericos and the Tithes be Personal Tithes it holdeth not but if they be Predial Tithes the Composition holdeth the Approbation of the Bishop of the Diocess being thereunto had So that Composition for the remitting or entirely taking away of Tithes it not good in Law but a Composition with the Parson or Vicar to have but the Thirteenth Sheaf for his Tithe was held to be a good Composition and should bind the Parson Composition may likewise prevent the payment of Tithes in kind and if it be made with a Parson or Vicar to pay a Modus Decimandi which hath continued time out of mind Custome being equivalent to Law it is good and shall bind the Parson and his Successors and although a Modus Decimandi cannot begin at this day but must be by Prescription yet a Composition may be made which shall bind during the life of him that made it The Case was A Vicar did contract with his Parishioner to pay so much for increase of Tithes and died his Successor sued in the Ecclesiastical Court for them A Prohibition in this case was granted by the Court The words of the Contract were inter se convenerunt It was holden that this was not a Real Composition although that the Bishop did call it Realis Compositio for his calling of it so doth not alter the nature of it but it remains a Personal Contract and so shall not bind his Successor although it were confirmed by the Bishop It was said by Mallet Justice in this case A Real Contract although it be made between Spiritual persons and of Spiritual things is only questionable at the Common Law Composition shall bind during the life of him that made it though not his Successors Coneys taken in a Warren shall pay Tithes yet they are not Predial but Personal Tithes Sed Q. whether Tithes shall be paid of them because Berkley Justice They are not Tithable but by Custome 15 Car. B. R. For no Tithes de jure without a Custome ought to be paid for them for they are Ferae naturae Trin. 8. Car. B. R. Worden Bennet's Case after a Prohibition granted a Consultation denied per Curiam for the reason aforesaid Pasch 13 Car. B. R. Sir Jo. Brewen Dr. Bradish's Case per Cur. a Prohibition granted and Hill 13 Car. B. Vincent and Tutt's Case Prohibition granted and for Prohibition pleaded by the Parson to have them by Prescription Mich. 14 Car. B. R. Williams and Wilcock's Case Or if a man steals Coneys out of a Warren he shall pay no Tithes of them because the Law gives him no property in them nor shall the right Owner pay any Tithes of them because he hath no profit by them Corn pays a Predial Tithe as that which comes partly by the Industry of Man and partly of the Earth Mich. 8 Jac. C. B. Magna Charta 649. And if a Custome be alledged That the Parson shall have but the Tenth Sheaf of Wheat for all the Tithes of all manner of Corn and Grain this is no good Custome Yet Corn of all kinds fowed is Tithable according to the Custome of the place and is commonly Tithed by the Tenth Shock Cock or Sheaf where the Custome of the place is not otherwise but not to put the Parsons Tenth up on end in Shocks unless the Custome of the place be so And if the Owner will not cut his Corn before it be spoiled the Parson is without remedy And if he doth change the Corn or Grain fowed in the same ground such change of the Corn so sowed doth change the Tithe to the same kind of that Grain And if a man pay Tithe of Corn he shall not pay any Tithe for the Stubble which grew the same year on that Land Hill 6 Jac. B. pl. 13. Smiths Case per Cur. Case ibid. Pasch 7 Jac. per Cur. Mich. 9 Jac. Baxter Hope for the Aftergrass 2 H. 4. Rot. Par. nu 93. No Tithes for the Agistment in such After-pasture And if the Parson hath Tithes of Corn one year and the Land be left without Seed the next year that so it may be Plowed and made ready for Seed the the third year no Tithes shall be paid the second for by lying fresh the Land is the better and the Parson will have the better Tithes the third year Pasch 7 Jac. Smith's Case By the Statute of 2 Ed. 6. cap. 13. the Parson or Vicar is priviledged to come upon the Land to see the Tithes set forth For by the said Statute it is Enacted That at the Tithing time of Predial Tithes it shall be lawful for any to whom Tithes are payable or for his Deputy or Servant to see the said Tithes to be set forth and severed from the Nine parts and quietly to take and carry them away And as the Parsons Rights are hereby secured from the danger of having his Predial Tithes subtracted so likewise the Law hath provided nor only for the prevention of his being defrauded therein and for his quiet removal and carrying the same away but also for an open free and unmolested way and passage through which to carry the same away as appears by Halsey's Case The Case was
was no Discharge of the Tithes of the Copyhold Lands And in this Case it was also Adjudged That a Farmer of Lands might Prescribe in Modo Decimandi but not in non Decimando The Statute of 31 H. 8. gave all Colledges Dissolved to the Crown in which there is a Clause That the King and his Patentees should hold Discharged of Tithes as the Abbots held Afterwards the Statute of 1 Ed. 6. gave all Colledges to the Crown but there is in it no Clause of the Discharge of Tithes The Parson Libelled in the Ecclesiastical Court and the Farmer of the Lands of the Colledge of Maidstone in Kent brought a Prohibition upon the Statute of 31 H. 8. The Court was clear of Opinion That the King had the Lands of the Colledge by the Statute of 1 Ed. 6. and not by the Statute of 31 H. 8. But the Justices doubted the Lands coming to the King by that Statute whether they should be Discharged of Tithes by the Statute of 31 H. 8. there being no Clause in the Statute of 1 Ed. 6. for Discharge of Tithes But it was Resolved by the Justices That Unity without Composition or Prescription was a sufficient Discharge of Tithes by the Statute of 31 H. 8. The Templers were Dissolved and their Possessions and Priviledges by Act of Parliament 17 Ed. 2. transferred to St. Johns of Jerusalem and their Possessions by Act of Parliament 32 H. 8. cap. 24. given to the King It was Resolved That the King and his Patentees should pay Tithes of those Lands although the Lands propriis sumptibus excolantur because the Priviledges to be Discharged of Tithes were proper to Spiritual persons and ceased when the person Spiritual was removed And the Statute of 31 H. 8. of Dissolutions did not extend to such Lands as came to the King by Special Act of Parliament as those Lands of St. Johns of Jerusalem did And Mich. 6. Jac. C. B. in a Case de Modo Decimandi it was said That one may be Discharged of Tithes five waies 1 By the Law of the Realm viz. the Common Law as tithes shall not be paid of Coles Quarries Bricks Tiles c. F. N. B. 53. and Reg. 54. nor of the After-pasture of a Meadow c. nor of Rakings nor of Wood to make Pales or Mounds or Hedges c. 2 By the Statutes of the Realm as 31 H. 8. 13. 45. Ed. 3. c. 3 By Priviledge as those of St. Johns of Jerusalem in England the Cistertains Templers c. as appears 10 H. 7. 277. Dyer 4 By Prescription as by Modus Decimandi annual recompence in satisfaction 5 By real Composition By all which it appears that a man may be Discharged of payment of Tithes yet a Lay-man ought not to prescribe in non Decimando albeit the may in modo Decimandi And this in effect agrees with Tho. Aquinas in his Secunda Secundae Quaest 86. art ult vid. Dr. Stu. lib. 2. c. 55. fo 164. And the Causes why the Judges of the Common Law permit not the Ecclesiastical Judges to try Modum Decimandi being pleaded in their Courts is because that if the Recompence which is to be given to the Parson in satisfaction of his Tithes doth not amount to the value of this Tithes in kind they might overthrow the same And that appears by Lindwood Constit Mepham de Decim c. Quoniam propter verb. Consuetudines For this Reason it is said a Prohibition lies and therewith agrees 8 Ed. 4. 14. vid. 7 Ed. 6. Dyer 79. and 18 Eliz. Dyer 349. In a Prohibition upon a Suit in the Ecclesiastical Court by the Defendant the Vicar of D. for Tithes A Prohibition prayed upon his Plea thereof a Modus Decimandi to pay so much yearly to the Parson of Dale in Discharge of his Tithes and the same Plea there disallowed The whole Court agreed that this Modus between him and the Parson will not discharge him from payment of Tithes as to the Vicar and therefore by the Rule of the Court a Consultation was granted Also the Court was of Opinion That where a Bishop holds Lands discharged of Tithes and he makes a Feoffment of the Land the Feoffee shall be discharged of Tithes and the like if the King hath ancient Forest Lands discharges of Tithes and the King grants this Land the Grantee is discharged of Tithes And it is a General Rule That he which may have Tithes may be Discharged of Tithes So long as the Land is occupied by him who hath the Fee-simple which did formerly belong to the Order of Cistertians it shall pay no Tithes but if he lett it for years or life the Tenant shall pay Tithes For anciently there were many large Estates wholly exempted from paying Tithes as Land belonging to the said Cistertian Monks to the Knights Templers and Hospitallers As in the Earl of Clanrickard's Case who Libelled in the Ecclesiastical Court for the Tithes of Hay of a certain Meadow against Dame Denton who pleaded That the Prior of A. was seised of that Meadow as parcel of the Possessions of the Priory and that they held it discharged time out of mind c. whereupon Issue was joyned upon a Prohibition and it was found for the Plaintiff for that the Land was only discharged when it was in the hands of the Priory and not when it was in the hands of their Farmers and they were of the Order of Cistertians whereupon a Consultation was granted And now a new Prohibition was prayed for that in the Ecclesiastical Court they had added to the former Libel when the Statute of 50 Ed. 3. cap. 4. is That whereas a Consultation is duly granted upon a Prohibition that the same Judge may proceed in the same case by virtue of the former Consultation notwithstanding any other Prohibition Provided alwaies that the matter in the Libel of the said cause be not altered enlarged or otherwise changed Dr. Pope Doctor of the Civil Law said That there was not any enlarging or changing in substance of the Libel in question for whereas in the former Libel it was That they had used to pay Tithes time out of mind now in the second Libel is added That although the Prior was discharged yet they viz. the Farmers have paid Tithes for 20 30 or 40 years and time out of mind Montague Ch. Justice said That it seem'd that that was not an alteration but Doderidge and Houghton Justices held That that was an alteration of the Libel for now by that last Libel They could fetch them in for Tithes though they were discharged in the hands of the Abbot and for that the Tithes had been paid for 20 30 or 40 years since the Statute aforesaid the which is a sufficient time to make a Prescription according to the Law of the Civilians they would charge the Land with Tithes in whose soever hands they are when by the Statute it ought to be discharged only in
the Bishop were Discharged in his hands absolutely by Prescription the Demising it to a Lay-man cannot make it chargeable and the Bishop might reserve the greater Rent A Parson by Deed Indented leaseth his Glebe cum omnibus proficuis commoditatibus It was notwithstanding Adjudged that the Lessee shall be charged with the payment of Tithes And in an Action of Debt upon the Statute of 2 Ed. 6. for not setting forth of Tithes the Case was The Lands were a parcel of the possession of the Templers whose Lands were annexed to the Priory of St. Johns The Templers had a Special Priviledge to be Discharged of Tithes of those Lands which propriis manibus excolunt By a Special Act of 32 H. 8. the Possessions of the Priory of St Johns were given to the King by general words of all Lands in tam amplis modo c. as the Abbots held them Resolved That the Defendant should not be Discharged nor have the Priviledge for by the Common Law a Lay-person was not capable of such a Priviledge and the King should not have the benefit of the Priviledge until the Stat. of 31 H. 8. But the Statute extends only to such Possessions as came to the King by Surrender and should be vested in him by that Act and doth not extend to Possessions which are vested in him by another Act. and these Lands were given to the King by a Special Act of Parliament and therefore not Discharged of Tithes Dotards or the Branches of Trees of twenty years growth or upward are not Tithable Doves in a Dove-house do pay Personal not Predial Tithes but if stolâ out of a Dove-house no Tithe is to be paid of such Tithes shall be paid de jure of young Pidgeons Mich. 14 Jac. B. between Whatley and Hambury Resolved Hill 15 Jac. B. R. Resolved and a Prohibition denied in Gastrell's Case By Custome Tithes may be paid of Pigeons spent in a mans own house but not so of Common right Case ibid. But if sold they shall pay Tithe dict Cas Whatly E EGgs are Tithed in kind or according to the Custome of the place which serves for the Tithe of the Tame and Domestick Fowl where their young are not paid in kind and where Tithe of Eggs is paid there is no Tithe of the young And so vice versa where the Tithe of the Young is paid there no Tithes of Eggs may be demanded F FAllow-Grounds pay no Tithe for these years wherein they lie Fallow nor is the Pasture thereof Tithable unless it be kept Lay beyond the course of Husbandry for if Land lie Fallow every two or three years the same is a charge unto the Owner and Tenant for that time and an advantage to the Parson in the bettering of his Crop the year following when the same is sowed with Corn or Grain and therefore although the Grass and feeding of the Fallow-ground for that year be some small profit to the Owner of the Soil yet he shall not pay Tithe for the same as hath been Adjudged Yet it was afterward Adjudged That if Lands be Tithable and the Tenant or Occupier of the Land will not Plough it or Manure it especially thereby to prejudice the Parson that in such case the Parson may Sue the Tenant in the Ecclesiastical Court to have Tithe of that Land Ferae naturae Beasts and Birds that are such are not Tithable till they become tame and profitable to the Owner that is till they are reduced to a Tameness and Property yet it hath been held that Tithes are not payable for tame Turkies Pheasants or Partridges nor for their Eggs Although Beasts Ferae naturae as Bucks Does Pheasants c. are not Tithable of themselves yet they may be given for Tithes or for a Modus Decimandi as a great Tree may be given for Tithe of Trees tithable And as things which are Ferae naturae whereof a man hath not an absolute property are not Tithable so likewise of things which are meerly for Pleasure Tithes shall not be paid Fenny-Lands drained and made Arable do pay Tithes notwithstanding the Statute of Barren Land Fish taken in the Sea are by the Custome of the Realm Tithable not by the Tenth Fish but some small Sum of Money in consideration of a Tithe But if taken in a Pond or in a several Piscary then they are Tithable by the Owner thereof as a Predial Tithe and as such ought to be set forth according to the Statute of 2 Ed. 6. Trin. 8 Jac. C. B. the Earl of Desmond's Case Mich. 15 Car. B. R. Adjudg acc vid. Trin. 9 Car. B. R. Yet it is said that Fishers Fowlers and Hunters not for pleasure but by way of Trade for profit pay some Tithe by usage in nature of a personal Tithe to the Parson or Vicar where they inhabit though they take their Fish Fowl c. in another Parish but if they paid Money to another in that other Parish for this liberty of Fishing c. then he that takes that Money must pay as a Predial Tithe to the Parson of that other Parish where he inhabits Fish taken in the Sea being Ferae naturae are not understood to be Regularly but Customarily only Tithable as in Cornwall Wales Yarmouth c. And so it hath been Resolved albeit in the said Case of the E. of Desmond it was held that they were Tithable by the Custome of the Realm In which case it is more probable that the Fishers pay a Personal than the Fish a Predial Tithe to the Parson or Vicar of that Parish where they inhabit To this purpose there is a Case extant wherein a Prohibition was granted against the same Parson of W. in the County of L. for suing in the Ecclesiastical Court for the Tithe of Trouts taken in a River because being Ferae naturae they are not Tithable and a President was shewed 5 Car. where a Prohibition was granted against the same Parson for suing for Tithe-Eeles taken in the River because they were Ferae naturae And it was said that in Yarmouth was a Suit for Tithe-Herrings taken in the Sea but they could not prevail in it Jones Justice said That in Wales they used to pay Tithes for Herrings and in Ireland it is a common course to pay Tithe for Salmons taken in Rivers whereunto it was replyed That that might peradventure be by Custome for otherwise Tithes are not due for Fish taken in Rivers For no Tithes de jure are to be paid for Fish taken in a Common River Pasch 5 Car. B. R. a Prohibition granted to stay a Suit for Tithes of Eeles taken in a Common River in the Parish of Barton in Westmerland and Hill 9 Car. Prohibition granted to stay a Suit for Tithes of Trouts in the same River But the Court seemed to be divided whether Tithes of them were due or not But they granted a
Prohibition for that the Law shall decide thereupon it was between Dawes and Huddlestone No Tithes shall be paid in kind without a Custome for Fish taken in the high Sea out of any Parish Hill 14 Car. B. R. between Long and Dircell per Curiam and Prohibition granted accordingly And Justice Jones said that on an Appeal to the Delegates out of Ireland in the Lord Desmond's Case it was Agreed That for such Fish so taken only Personal Tithes are due deductis expensis Likewise no Tithes in kind shall be paid de jure for Fish taken in a Common River which is not enclosed as in a Pond enclosed for that they are Ferae naturae although they are taken by one who hath a severed Piscary there and although the place where they are taken be within the Parish of that Parson who claims them for it is a Personal Tithe in which Tithes ought to be paid deductis Expensis Pasch 15 Car B. R. between Gold and Arthur and others Prohibition was granted where the Suit was for Tithes of Salmon in the River of Exe. Mich. 15 Car. between Whislake and the said Arthur and others the like Prohibition granted on the same matter between other parties And in the Case of a Prohibition it was Resolved That Tithe shall be paid for Fish taken in the Sea which is not within any Parish and they shall be paid to the Parson of the Parish where the Fish is landed Flax pays a Predial Tithe payable when dressed up Coke Mag. Char. 649. The Tithes of Flax are Minutae Decimae Mich. 14 Car. B. R. in Noah Webb's Case forest-Forest-Lands that lie in no Parish or between two Parishes and anciently such are not Tithable by the King or his Patentees but if the Forest be in a Parish and Land therein which is Tithe-Free if the Forest happen to be disforested it shall pay Tithes in kind Crompt Jurisd 52. Bacon Chief Justice at Sarum-Assize the Case was A. Lessee for years of the Earl of H. prayed a Prohibition against the Vicar of L. to stay a Suit in the Ecclesiastical Court for Tithes because the Lands out of which the Tithes were demanded were parcel of the Forest of B. whereof the King was seised in right of his Crown and he and all his Predecessors held the said Land discharged of Tithes and shewed that the King had granted the said Forest to the Earl of Hertford in Fee and so he ought to have them discharged of Tithes In that Case it was held by the Court That it was only a Priviledge annexed to the Crown during the time that the Land was in the Crown but the Court doubted whether the Patentee might have such Priviledge But yet de bene esse the Prohibition was granted If Tithes do lie in any Forest as in the Forest of Windsor Rockingham Sherwood or other Forest which is not any Parish the King shall have them by his Prerogative and not the Bishop of the Diocess or Metropolitan of the Province as some have thought But yet it seems by 22 Ass 25. if there be cause of Suit for such Tithes against the parties who ought to pay the same such Suit might be brought in the Ecclesiastical Court But if a Stranger takes away such Tithes from the Parson or Vicar there for such Trespass the Suit may be in the Temporal Court as the same may be for taking away other goods in the like case Adjudg 15 Car. B. R. Fowl taken by a Faulkner who hawks for his pleasure shall not pay Tithe but if a Fowler kill Fowl and make a profit of them it hath been held that he shall pay a Personal Tithe for them Pasch 15 Car. Adjudg acc Fruits of Trees as Apples Pears c. are Tithable presently upon their gathering and are Predial Tithes for the subtraction whereof the Parishioner is impleadable Stat. 2 Ed. 6. c. 13. Fruits of Trees Apples Pears c. Mast of Oak Beech c. are Predial Tithes Coke Magn Chart. 649. The Fruits of Orchards and Gardens are Tithable in their proper kinds and to be paid when they are gathered unless there be some Modus or Rate-Tithe paid in lieu thereof Furse is Tithable and pays a Predial Tithe unless the Owner thereof can prescribe or prove a Custome of Tithing Milk or Calves of the Cattle on the ground where the Furse grows Mich. 29. Eliz. B. R. Vid. Heath G GArdens are Tithable as other Lands and therefore the Herbs which grow therein pay Tithes in kind Also Plants Seeds Woad Saffron Hemp Rape c. pay Tithes in kind unless the Parson make an Agreement for the same otherwise the Tenth part must be set forth for the Parson when the Owner receives his Nine parts Mich. 8. Jac. C. B. in Baxter's Case Trin. 9 Jac. B. R. The whole Court Glebe is a portion of Land Meadow or Pasture belonging to or parcel of the Parsonage or Vicarage over and above the Tithes If it be Demised by the Parson to a Lay-man it pays Tithe otherwise if he keep it in his own hands For Glebe kept in the Vicars own hands pays no Tithe to the Parson Impropriate it is otherwise if it be in the hands of his Lessee by whom it is Tithable if lett by a Parson Impropriate And although Glebe-Lands are not properly Tithable because Ecclesia Ecclesiae Decimas non debet solvere yet if Glebe-Lands be leased out the Parson the Lessee shall pay the Small Tithes arising out of such Glebe-Lands to the Vicar that hath Small Tithes upon his endowment as in Blinco's Case And yet in that case the Vicar Libelled in the Ecclesiastical Court to have Tithes of the Glebe of the Parson and a Prohibition was granted for that the Glebe shall pay no Tithe Notwithstanding which if a Parson lease his glebe-Glebe-Lands and do not withal Grant the Tithes therof the Tenant shall pay the Tithes to the Parson Likewise if a Parson sow his Glebe-Land and then Lease the same the Tenant shall pay the Tithes of this Corn to his Landlord the Parson Yet if a Parson sow his Glebe and die before Severance some have held that his Executors shall not pay Tithes of this Corn. And albeit where Glebe-Lands are leased out by the Parson the Lessee shall as aforesaid pay the Small Tithes thereof to the Vicar that hath the Small Tithes upon his Endowment yet he shall not have the Small Tithes arising upon such of the Parsons Glebe-Lands as the Parson keeps in his own hands Likewise on the other hand it hath been held That the Vicar upon a general Endowment shall not pay Tithes of his Glebe to the Parson or of the Fruits that arise from the same and that for the same reason aforesaid Quia Decimas Ecclesia Ecclessae reddere non debet But the Lessee of the Parsons Glebe shall pay him the Tithes thereof to this purpose the Case was A Parson
leased all his glebe-Glebe-Lands with all Profits and Commodities rendring 13 s. 4. d. pro omnibus exactionibus demandis and afterwards Libelled in the Ecclesiastical Court against his Lessee for the Tithes thereof It was the Opinion of the Court That Tithes are not things issuing out of Lands nor any Rent or duty but Spiritual and if the Parson doth Release to his Parishioner all demands in his Lands his Tithes are not thereby extinct and therefore a Consultation was granted And so it was Adjudged 32 Eliz. in Babington's Case That such Lessee should pay Tithes to the Parson for that they are due jure divino and cannot be included in Rent As long as the Vicar occupies his glebe-Glebe-Lands in his own hands he shall pay no Tithes but if he Demise it unto another the Lessee shall pay Tithes to the Parson that is Impropriate If the Vicar sow the Land and die and his Executor take away the Corn. and doth not set forth his Tithe and the Parson bring his Action of Debt upon the Statute of 2 Ed. 6. In this case the Court seemed to incline that it would lie The glebe-Glebe-Lands and Spiritual Revenues of Clergy-men being held in pura perpetus Eleemosyna h. e. in Frankalmoign are exempted from Arraying and Mustering of Men or Horses for the War as appears in a Stat. of 8. H. 4. nu 12. in the unprinted Rolls of that Parliament An Abbot was Parson Imparsonee of the Church where the Abbey and Tithes were the Abbey was Dissolved the King granted the Monastery to one and the Parsonage and Rectory to another It was the opinion of the Justices That if the Land of the Abbey was the Glebe of the Parsonage before the Impropriation that then the Land was discharged of Tithes for it remains Glebe notwithstanding the Appropriation and the Glebe cannot be gained by Prescription nor was ever chargeable to pay Tithes And if the Parson doth make a Lease of his Glebe the Lessee as was there said contrary to what was before said shall not pay Tithes but the Demesns of the Abbey not parcel of the Glebe should be chargeable to pay Tithes if they were not discharged in right of a Composition or perpetual Unity Grass pays a Predial Tithe but if a man cut Grass and before it be made into Hay being only put into Swathes he carry it thence and give it to his Plowing Cattel for their necessary sustenance not having otherwise Food sufficient for them in this case no Tithes shall be paid for the same and Prohibition was granted Mich. 9. Car. B. R. Crawley Wells per Curiam The Case was where J. Libelled in the Ecclesiastical Court for the Tithes of the Profits which came of the Grass and herbage of pasture-Pasture-Land and upon a Prohibition granted P. suggests That he did feed on that Grass and Pasture with his own Plough-Cattel and with the Plough-Cattle of other man in the same Village Noy Consultation shall be granted for though a mrn shall not pay Tithes for the Cattel of his Cart yet he shall pay Tithes for the Land whereon they do feed Doderidge Justice Where I do agist Cattel and take the Cattel of other men to eat up my Grass and Pasture there I shall pay Tithes for the Grass otherwise it is where the Grass is only such as I do depasture with my own working Cattel Crook cited Sherington and Fleetwood's Case where a man Agists other mens Cattel on his Meadowgrouâd whereof he paid Tithe-Hay afore time and it was Resolved in this Case That he shall not pay Tithes for that Meadow-ground now fed with other mens Cattel after Harvest and no more than if he had depastured the Land with his own Cattel Gravel is not Tithable Mich. 19. Eliz. B. R. Pasch 34. Eliz. C. B. Liff and Watt ' s Case Grain is computed among the Predial Tithes which is to be set out according to the Statutes and the usage of the place Brownl 1. 14. which holds true of all sorts of Grain in all grounds within the Parish The Law is the same touching Hay in Meadows Grounds lett to Strangers out of the Parish the Tenth-peny of the Rent is commonly payable to the Parson if no Custome against it Or Ground within the Parish lett to a Stranger without the Parish is Tithable by the Ower of the Cattel unless the Custome there be osherwise Or if the Ground be fed with Cattel that bring no profit to the Parson the Owner thereof must pay Tithes for them Or Ground fed with the Cattel of a Stranger within the Parish which brings no profit to the Parson or Vicar he is to pay Tithes for it the Case therefore seems the same if both the Ground and the Cattel be his own that is the Stranger in case he work them in another Parish But the Studs of Ground or the Meers thereof at the Ends of Land and adjoyning to the Arable-ground are not Tithable where the Land it self pays Tithe unless where being mowed for Hay it hath used to pay Tithes H HAy pays a Predial Tithe and is to be Tithes in Swathes Windrows or Cocks as the Custome of the place is Or if the Custome be to measure out the Tenth part as the Grass grows on the Land for Hay the Custome is good and the Tithe of Hay may be set forth in Grass-Cocks where the Custome doth not oblige to make it into Hay-Cocks And if Hay be put into Ricks on the ground and after sold the Buyer cannot be sued for the Tithe the Seller may in case the Tithe thereof were not paid before Hill 16. Jac. by three Justices in Ashfield's Case And where two Crops of Hay are had from the same ground in the same year Tithe shall be paid as well of the latter as of the former Also Tithe shall be paid of the Hay made of Grass growing in Orchards Co. 2. Instit 652. But no Tithe Hay shall be paid for the Grass growing upon Headlands which are only large enough for the turning of the Plough but not for Grass cut in Meadows to feed the Beasts of the Plough and not made into Hay Trin. 1. Car. B. R. Wells vers Crawly Yet on some Headlands Tithe may be payable of Hay for suppose that in an Arable Field there be much Grass on the Headlands thereof and there be a Prescription to pay the Tenth Shock of Corn there for all the Hay on the Headlands and Rakings of the Corn and for Tying of Horses on the Headlands such Prescription was held good to discharge the Tithe of the Hay upon such Headlands And although a Second Crop of Hay from the same ground the same year is Tithable as aforesaid yet regularly the Hay of the Aftermath pays no Tithe except there be a Special Custome for it the Rule being That Tithes shall be paid Ex annuatis renovantibus simul semel And where the
Custome is not otherwise the Parishioner ought to make the Grass into Hay for the Parsons Tithe Yet when the Tithes of Grass are severed from the Nine parts the Parson de jure may make it into Hay upon the Land where it grew and that de jure as well as the Parishioner himself and so Adjudged in the Parson of Columbton's Case in Devon and the Prohibition denied accordingly where the Parson had alledged a Custome of doing so but the Court held that to be needless Hill 14. Jac. B. R. Newbery and Reynold's Case per Curiam And in this case it was held That the Parson may go over the Parishioners ground in the Path-way to make the said Grass into Hay for that is incident to the Tithes A man is not bound to make into Hay the Tithes of the Grass which he cuts but he may set forth the Tithes thereof when it is in Grass-Cocks for he may then sever the Tithes of Grass from the Nine parts Pasch 17 Jac. B. Hide Ellis Hob. Case 328. Contr. Hill 14 Jac. B. R. Barham Goose P. 15. Jac. B. R. per Cur. and Prohibition denied Tr. 15 Jac. B. R. Poppinger Johnson per Cur. and Prohibition denied Pasch 13 Jac. B. R. per Cur. and Prohibition denied P. 2. Jac. B. R. Hob. 328. Hall Simonds Adjudged Likewise a man is not bound to sever the Tithe of Grass before it be put into Grass-Cocks and hath set forth the Tenth part for he may put it into Grass-Cocks out of the Swath and then set forth the Tenth part Ibid. Suit was for Tithe-Hay in the Ecclesiastical Court by the Parson it was Surmized That they had time out of mind paid to the Vicar 4 d. for the Tithe-Hay The Court awarded a Consultation for that the Modus Decimandi doth not come in question but this he may plead in the Ecclesiastical Court And in Gomersall and Bishops Case for Tithe-Hay the Court held That if there be variance between the Surmize and the Declaration all is ill In another Case in a Prohibition it was Surmized That time out of mind the Owners of the Land had found Straw for the Body of the Church in discharge of all Tithes of Hay It was the Opinion of the Court That it was no good Surmize for that the Parson had no benefit of it and a Consultation was awarded Heath Furse and Broom Tithe shall be paid thereof unless the party set forth a Prescription or Special Custome That time out of mind there hath been paid Milk Calves c. for the Cattel that have been kept upon the same Lands in which case they shall not pay Tithes Hemp pays a Predial Tithe Co. Magn. Char. 649. Herbage of ground whereon Corn was sowed the same year and whereof Tithe hath been paid the same year is not Tithable If Herbage he sold it is at the Parsons Election whether he will Sue the Owner of the Cattel that feed thereon or of the Ground for the Tithe thereof if Custome be not against it And as for Herbage growing at Lands-ends adjoyning to the Arable pays no Tithe where Tithe was paid for Arable Where an innkeeper hath paid Tithe-Hay of certain Lands and the rest of the year after puts into the same the Horses of his Guests no Tithes shall be paid for the Herbage of such Horses for it is but the After-pasture of the same Land whereof he had paid Tithes before Trin. 16 Jac. B. R. Richardson Cable per Curiam Prohibition granted Honey is Tithed by the Tenth measure thereof A Prohibition was prayed for Suing for divers kinds of Tithes inter alia for Honey upon a Surmize that it was not payable that Bees are Volatilia It was thereupon demurred but the Opinion of the Court was That Tithes are to be paid for Honey for so is the Book Fitz. N. B. and therewith agreeth Lindwood wherefore the Court awarded that there should be a Consultation Hops pays a Predial Tithe and regularly are accounted inter minutas Decimas yet in some Cases they may be Great Tithes in places where they are much set or planted Mich. 8. Jac. B. A man may set forth the Tenth part of his Hops for Tithes before they be dried Hill 14 Jac. B. R. in Barham and Goos's Case put by Serjeant Hitcham and agreed by Mountacute Hop-poles or Wood cut and employed for them are not Tithable where Tithe Hops are paid And so it hath been Resolved That if Wood be cut and employed for Hop-poles where the Parson or Vicar hath Tithe-Hops they shall not have Tithes of the Hop-poles So if a man hath a great Family and much Wood be felled and spent in House-keeping Tithes shall not be paid of such Wood. Mich. 15 Jac. C. B. by Hobart Chief Justice White Bickerstaff's Case Houses of habitation or Dwelling-houses are not properly Tithable no Tithe payable for the same nor out of the Rent reserved for them being Lett yet by a Custome Tithes may be paid for Rent reserved upon Domise of Houses of habitation although it be otherwise do jure for it might commence on good Consideration Co. 11. Dr. Grant 16. vid. Mich. 12 Jac. B. Hobart 16. Leyfield's Case Prohibition granted Otherwise of New Houses whereof there can be no Custome Ibid. But regularly Houses are not at all Tithable nor were Tithes anciently paid for Houses in London the Profits of the Churches whereof consist only in Oblations Obventions and Offerings Co. ibid. But by a Decree made An. 1535. and confirmed by Act of Parliament Stat. 37 H. 8. cap. 12. there is 2 s. 9 d. made payable to the Parson for every Pound of House-Rent for the Tithes of the Houses in London Hob. 11. But if a Modus Decimandi be alledged to pay 12 d. in every Pound of Rent for every House in such a Parish in London it is a good Modus Decimandi The aforesaid 2 s. 9 d. is to be raised and made up according to the usage and Custome of the City Stat. 27 H. 8. 20. 32 H. 8. 7. And no Tithes are payable for Houses in any City save London where a Prescription to be discharged of Tithes of a House by paying 12 d. of every Pound Rent in lieu thereof is as aforesaid a good Prescription Co. 11. 16. But Tithes regularly are not payable for Houses of Habitation nor of any Rent reserved upon any Demiss of them for Tithes are to be paid of things which grow and renew every year by the Act of God And for the Houses in London Tithes anciently were not paid as aforesaid yet the Parson of St. Clements without Temple-Bar Libelled against a Parishioner for Tithes of certain Stables ãâ¦ã set forth in his Libel That of ãâ¦ã ââscription time out of mind the ãâ¦ã had used to have a Modus Decimandi after the Rate ãâ¦ã Tenth-part of the yearly Rent or value of the same ãâã was the Opinion of
the Court That in this Case a Prohibition should be granted for de Communi jure no Tithes are to be paid of the yearly Rent or value of Houses for Tithes are paid of the revenue and increase of things and therefore no Tithes are paid for Houses in any Cities or Towns in England saving in London and this Parish is out of London and the Liberties thereof Now where there is no Tithe at all there can never be a Modus Decimandi and yet it seems this kind of Payment hath been long used in London which certainty was by use But for Houses Oblations were paid in all places which are now by the Stat. brought to a certainty viz. 4 d. for a House Trin. 12. Jac. C. B. Dr. Leyfield and Tindall's Case Hob. 10. 11. In Green and Piper's Case it was agreed by the Justices That a House in London which was parcel of the Possession of a Priory which was discharged of the payment of Tithes should by the Stat. of 37 H. 8. be charged with the same One who was a Curate and Sequestrator only of the Rectory of D. in London the Incumbent being suspended Sued Four of the Parishioners in the Ecclesiastical Court for Tithes of their Houses and not before the Mayor of London according to the Statute of 37 H. 8. The Court doubted of it especially because the party was neither Parson nor Vicar and because the Statute is a New Law and appoints how the Tithes in London shall be paid and Ruled and before what Judges and what Remedy shall be for the party grieved and day given to hear Counsel on both sides In the Case aforesaid between Green and Piper when Suit was in the Ecclesiastical Court for the Tithes of a House in London a Prohibition was prayed upon a Surmize That the House was a Priory which was discharged of Tithes by the Pope's Bull and the Statute of 31 H. 8. which gave their Possessions to the Crown did Ordain That the King and his Patentee of such Lands should be discharged of Tithes yet a Consultation was awarded because by a latter Statute viz. 37 H. 8. cap. 4. all Houses in London shall pay Tithes according to their Ordinances and the Statute extends to all Houses and none excepted but the Houses of Noble-men L LAmbs are computed among the Mixt Tithes To pay Pence apiece for Lambs when the number is less than Seven is a good Prescription Curia 7 Jac. B. R. Patche's Case Or rather thus viz. if the Parishioner hath Six Lambs or under he shall yield for Tithe a halfpeny for every Lamb if he hath Seven Lambs then he shall yield a Lamb for his Tithe and receive Three-halfpence from the Parson if Eight Lambs then a peny if Nine Lambs then a half-peny from the Parson who may otherwise expect the Fall of the Tenth Lamb the year next following Lindw cap. Quoniam propter Also the Tithe of Lambs is to be apportioned with respect to the places where they were engendred brought forth and nourished Lindw cap. Quoniam audivimus And regularly the time of payment is when they are weaned from the Dam unless the Custome of the place be otherwise To stay a Suit in the Ecclesiastical Court for the Tithe of Lambs a Prohibition was prayed upon a Surmize the Custome to be That if one hath Lambs under the number of Seven he ought to pay a halfpeny for every Lamb in lieu of all Tithes of Lambs if he hath but Seven then the Parson to have the Seventh and he to pay Three-pence if Eight then Two-pence and if he had Ten the Parson should have the Tenth without paying any thing Resolved That this being a Custome which they refused to allow in the Ecclesiastical Court a Prohibition should be awarded Lands accruing to the Crown by the Statute of 27 H. 8. touching Dissolutions are now Tithable though whilst they were the Lands of Religious Houses they were not Tithable but their Priviledges being Personal they were extinguished by the said Statute of Dissolutions nor hath the Statute of 31 H. 8. retrospect to the said Priviledges 15 Jac. C. B. Garret and Wrigh's Case 7 Car. B. R. Clark and Ward 's Case Vid. Sr. Marmad Strickland's Case 1639. Adjudged at York Assize accordingly Vid Clayton's Rep. 117. 12 Car. Adjudged in another Case Also Lands gained from the Sea and made Arable must pay Tithes Bulstr 8. 165. So must Lands in themselves Tithable but not Manured or Ploughed specially if so in prejudice to the Parson in which case he may Sue the Occupier of such Lands in the Ecclesiastical Court for the Tithes of that Land Vid. 15 Car. C. B. per Berkley Justice Adjudged Lops of Trees above twenty years growth shall pay no Tithes For it hath been held that if a man Lop a Tree under twenty years growth after suffer the Tree to grow past twenty years and then Lop it again no Tithe shall be paid for the second Lopping although the first Lopping were not Tithe-Free It was Resolved in Reynold's Case That Tithes shall not be paid of the Lopping of Trees above twenty years growth More 's Rep. Lime is not Tithable Adjudg 19 Eliz. B. R. Pasch 34. Eliz. C. B. Liff and Waltt's Case Nor Marle Bricks Slates or Tiles unless the Custome of the place make them Tithable otherwise not because they do not annually increase and because Lime is part of the Freehold Mich. 13 Jac. B. Thomas and Perrye per Curiam M MAst of Oak or Beech if sold the Tenth-peny is payable for the Tithe therof but if eaten by Swine then the Tenth of the value or worth thereof Meadows by ill husbandry over-run with Thorns Bushes and the like are not computed as Barren Lands but do still remain Tithable Hill 38 Eliz. B. R. Sherington and Fleetwood's Case Vid. 15. Car. B. R. Sugden and Cottle's Case Mills the Tithe thereof as also of Parks Ponds Warrens Dove-coats and Bees seem primo intuitu as if they were all Predial Tithes For the Tithe of Mills not the Tenth peny-Rent but the Tenth Measure of Corn grinded at the Mill is responsible for the Tithe understand it of Corn Mills whether new or old driven by Wind or Water for the Tithe whereof generally the Tenth Toll-dish is due if there be not some other Custome in the place And whereas by the Law and the ancient Constitutions of the Church Tithes were not paid of Ancient Mills yet by the Statute of Articuli Cleri cap. 5. Tithes are to be paid for all Mills newly erected so that de Molendino de novo Erecto Tithes shall be paid Trin. 14. Jac. B. R. So that all new Corn Mills be they Wind or Water Mills also Fulling Mills Paper Mills Powder Mills Stamping Mills and probably for the same reason Saw Mills Iron Mills and all others that are of Common and Publick use do pay Tithes but old Corn Mills for which no Tithe was ever
paid no Tithe is to be paid except a Personal Tithe as is for a Trade of profit And such Tithe shall be paid of Fulling Mills Rapt Mills Paper Mills Iron Mills Powder Mills Lead Mills Copper Mills and Tin Mills for such Mills pay no Tithe as Mills because they are but Engines of their occupation Pasch 17. Jac. Johnson's Case Cro. 2. 532 Bulstr 3. 212. Fitzh N. B. 41. G. Co. 2. 44. only the Millards are to pay a Personal Tithe as aforesaid as for a Handicraft or Faculty Therefore a Fulling-Mill as such pays no Tithe Hill 16 Jac. B. R. between Dawbridge and Johnson Parson of Buckfield For there being a Fulling-Mill which Fulled 40 Clothes a week and gained two shillings for every Cloth It was held that there was no Tithe to be paid thereof Cro. 2. Abridg. Case 2638. But a Corn Mill newly erected though upon Land discharged of Tithes by the Statute of Monasteries must pay Tithes and so of every new erected Mill on a mans own ground Ibid. Cas 1522. Notwithstanding the Premisses it seems somewhat questionable whether any Tithes are due for Mills de jure or not for the Lord Coke Instit 2. par 622. says It was never Judicially determined that ever he knew of If Mills do not yield a Predial Tithe yet doubtless the Millards are to yeild a Personal Tithe as well as other Handicrafts-men but Custome in this as in other cases prevails It hath been Adjudged Trin. 18. Jac. B. R. That where a Parson Libelled in the Ecclesiastical Court for Tithes of a Mill which was erected upon Lands which were discharged from payment of Tithes by reason of Priviledge within the Statute of 31 H. 8. That a Prohibition would not lie in that case for that De Molendino de novo Erecto Tithes ought to be paid Mich. 15 Eliz. in Hapers Rep. acc But in the other Case of the Fulling-Mill aforesaid where the Parson Libelled in the Ecclesiastical Court for the Tithes thereof and suggesting that the Miller Fulled every week 40 Clothes as aforesaid and gained two shillings of every Cloth demanded Tithes for them A Prohibition was granted in that case for it was said by the Justices That by the Law of the Land he ought not to pay Tithes of such Mills for of such things as come only by the Labour of men Tithes are not payable but of things which are renewable every year dict Cas Dawbridge Johnson Cro. par 2. 523. And in another Case where a man Libelled to have Tithes of Mills upon a Suggestion of a Modus Decimandi for the same a Prohibition was granted In that Case it was said by Coke Chief Justice That in some cases Tithe is payable for Mills and in some cases not No Personal Tithes by the Statute is to be paid of Mills but where by special Usage the same hath been paid and whereas a Modus Decimandi was alledged to pay Tithes for Mills it was Resolved That the Modus did not extend to Mills newly erected upon the Statute of Articuli Cleri for De Molendino de novo erecto solvuntur Decimae Trin. 14 Jac. B. R. Jake's Case Bulââr pa. 3. 212. If two Fulling-Mills be under one Roof and a Rate-Tithe paid for ãâã Mills and after you alter these Mills and make one of them a Corn-Mill the Rate-Tithe is gone and you must pay Tithes in kind Brownl pa. 1. Cases in Law If there be two ancient Corn-Mills time out of mind c. for which 6 s. 8 d. have been paid for the Tithes time out of mind c. and after in continuance of time the Mill-Stream doth change his course and goes another way at a little distance from the ancient Stream and thereupon the Owner of the Mills pulls down one of the ancient Mills and new builds it in that other place where the Stream now runs In this case it shall be discharged of any Tithes by force of the ancient Modus for that happened by the act of God and not by the act of the party and Prohibition was granted accordingly Mich. 11 Car. B. R. Johnson and Dawbridge's Case Resolved Per Curiam But withal the Court held that if the Stream had been altered by the Owner Tithes ought to have been paid as of a new Mill. In another Case it being Libelled in the Ecclesiastical Court for Tithes of a Grist-Mill and of a Fulling-Mill Crook agreed That for a Grist-Mill Tithes shall be paid but he said That the Statute De Articulis Cleri which speaks de Molendinis non fiat Prohibitio ought not to be meant or intended of a Fulling-Mill for the profit that accrues by that is by the Labour of men and therefore not intended within the general words of the Statute De Molendinis for which reason he prayed a Prohibition Calthroppe said that it was the opinion of Justice Warburton and Nicholls 12 Jac. That Tithes shall be paid of Fulling-Mills viz. the Tenth-peny of the gain or profit but of Grist-Mills the Tenth-dish of Corn shall be paid for that is in the nature of a Predial Tithe And so it was held 5 Jac. in the Case between Vbi and Lux Vid. Lindw Provin Constit But yet Doderidge held That if there be not a Special Custome alledged for the payment of Tithes of a Fulling-Mill Tithes shall not be paid thereof for he had spoken as he said with the Civilians who held that Tithes should be paid of such a Mill but they could not agree what manner of Tithe it is for some said it is a Predial Tithe Others that it is a Personal Tithe but he said it could not be a Predial Tithe for it wholly accrues by the Labour of man and if so be that he should have that Tithe as a Predial Tithe then another Tithe would be demanded of him who Sheers the Cloth and also of the Dyer thereof and so Tithes should be paid many times for the same Cloth But the Usage or Custome of the Countrey is to be considered And for Tin-Mills or Lead-Mills or Plate-Mills Ragg-Mills or Edge-Paper-Mills no Tithes shall be paid and to this agreed Doderidge Houghton and Croke And therefore as to the Grist Mill a Consultation was granted and as to the Fulling Mill there was a Prohibition Pasch 17 Jac. B. R. Roll. Rep. par 2. A Parson Libelled in the Ecclesiastical Court for Tithes of a Mill which was erected upon Lands discharged of Tithes by the Statute of Monasteries 31 H. 8. A Prohibition was prayed but denied by the Court for de molendino de novo Erecto non jacet Prohibitio Trin. 15 Jac. B. R. Cro. par 2. Also in another Case where it was moved for a Prohibition upon a Suggestion of a Modus to pay so much by a Custome for all Mills erected or to be erected and this appearing to be a New-erected Mill Whether the Custome shall run to this or not upon the Statute of Articuli Cleri c.
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
that Nag or Horse for that it is a Barren Beast not renewing but kept only for Labour and so Adjudged in the Parson of Thimblethorpe's Case where the Case was That a man Leased out certain Lands to another reserving to himself the running of a Nag for his own Riding and after the Lessor was sued in the Ecclesiastical Court for the Tithes of that Nag and a Prohibition was granted by Mountague Crook and Doderidge for that it is a Barren Creature and used only for Riding and although it was urged at the Bar that the Lessee paid him Tithes for all the Herbage but the Court took no advantage of that But Houghton seemed è contra for it seem'd to him That no Barren Cattel should be discharged of Tithes other than such as are used for Husbandry But that was not used for Husbandry Ergo c. And in the Case of a Prohibition between Hampton and Wilde It was Resolved That Tithes shall be paid for Pasturage of a Gelding for his Saddle or if it be sold but not for Horses used only for Labour In a Prohibition the Case was M. the Defendant being Parson of D. did Libel in the Ecclesiastical Court for the Tithes of Sylva Caedua and of the Herbage for depasturing of his Geldings The Plaintiff there shewed that they were his Hackney Geldings which he kept for his pleasure and for himself and his Servants to ride upon being his Saddle Horses and this Plea being there refused for this cause he prayed a Prohibition The whole Court was clear of Opinion That here was good cause for a Prohibition for that these Horses are not Tithable nor any Tithe-Herbage is to be paid for them otherwise it were if they had been Cart-Horses which he had to Till his Ground or for Cattel bought and Fatted to sell again for gain for these he ought to be answerable to the Parson for the Herbage of them but not for the Herbage of his Geldings by him kept and used only for his Pleasure but it was for working Horses for the Cart or Plough or for Fat Cattel bought and and Fatted to sell again of such Cattel allowance is to be made for their Herbage because that a Profit doth come in by them but otherwise it is of Saddle-Horses the whole Court agreed in this and therefore in this Case by the Rule of the Court a Prohibition was granted Nurseries of young Trees and Plants pay Tithes If a man be seised of Land within a Parish which used to pay Tithes and a Nursery be made thereof for young Trees and Plants of divers kinds of Fruit as Apples Pears Plums c. Also of Ash c. and after sell divers of them to Strangers out of the Parish to be transplanted he shall pay Tithes of that Nursery to the Parson for although the young Trees are parcel of the Freehold so long as they continue there yet when they are transplanted they are severed and taken from the Freehold and if that should be permitted without payment of Tithes the Parson might be defeated of the Tithes of all the Land in the Parish by converting them into Nurseries Hill 14 Car. B. R. Gibbs Wiburne Adjudg per Cur. upon a Demurrer and a Consultation granted accordingly Intrat Mich. 14 Car. Rot. 75. Cro. par 3. O OAks beyond 20 years growth that are become dry and rotten and thereby not fit for Timber shall pay no Tithe because they were once priviledged And if Oaks beyond 20 years growth have been used to be Topt and Lopt within every 20 years yet no Tithes shall be paid of these Tops and Branches cut within 20 years growth because their stock is discharged of Tithes Trin. 38 Eliz. B. R. Ram Patteson Mich. 3 Jac. B. Brook Rogers Co. 11. Sampson Worthington 48. B. Adjudg It was also Resolved in Wray and Clenche's Case That small Oaks under twenty years growth apt for Timber in time to come shall not pay Tithes Mores Rep. Likewise Oaks Top'd within the age of 20 years and after the Lop left to grow beyond 20 years no Tithes shall be paid for it is now become Timber Mich. 10 Jac. B. per Coke And Oaks decayed that are not Timber but converted to Firewood shall notwithstanding not pay Tithes More Case 716. Oblations Obventions and Offerings seem to be but one and the same thing and are in a sense something of the nature of Tithes being offered to God and his Church of things Real or Personal Offerings are reckoned amongst Personal Tithes and such as come by labour and industry paid by Servants and others once a year to the Parson or Vicar according to the Custome of the Place or they are to be paid in the place where the party dwells at such four Offering-days as before the Statute of 2 3 Ed. 6. c. 13. within the space of four years then last past had been used for the payment thereof and in default thereof Cro. 3. Abridg. Case 3159. In London Offerings are a Groat a House They are by the Law now in force to be paid as formerly they have been Vid. Stat. 32 H. 8. 7. 27 H. 8. 20. 2 3. Ed. 6. 13. Co. 11. 16. They properly belong to the Parson or Vicar of that Church where they are made Of these some were free and voluntary others by Custome certain and obligatory They were anciently due to the Parson of the Parish that officiated at the Mother-Church or Chappels that had Parochial Rights but if they were paid to other Chappels that had not any Parochial Rights the Chaplains thereof were accountable for the same to the Parson of the Mother-Church Lindw c. de Oblation cap. quia quidam Such Offerings as at this day are due to the Parson or Vicar at Sacraments Marriages Burials or Churching of Women are only such as were confirmed by the Statute of 2 Ed. 6. 13. and payable by the Laws and Customes of this Realm before the making of the said Statute and are Recoverable only in the Ecclesiastical Court Orchard the Soil whereof is sowed with any Grain the Parson may claim the Tithe thereof as well as of the Fruit of the Trees because they are of several kinds and of distinct natures Coke Magn. Chart. 652. P PArk if converted into Tillage shall pay Tithe in kind for a Park is but a Liberty a discharge therefore of the Tithes of a Park is not a discharge of the Tithes of the very Soil which may be converted into Tillage Or if there be a Modus Decimandi of the Park and the Park be disparked and the Land converted into Tillage or Hop-ground or the like in this case though Tithes in kind are not payable yet the Modus shall remain The Case is the same if the Park be disparked by having all the Pales fallen down which in Law is a disparking of the Park Sed Q. For to pay a Buck or a Doe or the
Shoulder of a Deer when one is killed may be a good Modus Decimandi for the Tithe of a Park A Vicar having two shillings yearly and the Shoulder of every third Deer killed in a Park the Park being disparked the Vicar sued for Tithes in kind The Court was divided in Opinion Nicholls and Hobart Justices That notwithstanding the Disparking the Modus did remain Winch and Warburton Justices That by the Disparking the Prescription as to the Modus Decimand was determined and that the Tithes should be paid in kind Quaere Where a Park is disparked if the Park paid ten shillings or any other Sum for all Tithes and now disparked and sown with Corn here only the ten shillings shall be paid otherwise if the Prescription be for the Deer and Herbage of the Park and not for all the Park for in such case Tithes in kind shall be paid if it be disparked and sown with Corn. A Modus to pay so much money for the Tithe of a Park is good though the Park be Disparked If one Shoulder of every Deer killed be Prescribed to be paid for all Tithes and it be after Disparked here the Tithe in kind shall be paid or if the Prescription be to pay Ten shillings and a Shoulder of every Deer and it be Disparked here it shall pay Tithe in kind and not the Ten shillings only Upon a Surmize of a Modus Decimandi to pay a Buck or a Doe for all Tithes of a Park a Prohibition was prayed and granted If a Modus Decimandi be to pay Two things as Two shillings for a Park and a Shoulder of every Buck kill'd in the Park and all the Deer die or are kill'd up yet the Prescription holds good for the Two shillings And although Tithes are to be paid for a Park yet Deer as being Ferae naturae are not Tithable saving where the Custome is otherwise In Thursbie's Case where Suit was for Tithe-Corn growing in a Park lately Disparked the Defendant pleading a Custome to pay Venison in lieu of all Tithes and Proof that a Buck was paid yearly but whether out of this Park or not was a Non constat The Jury found That if it was paid out of any Park and accepted and allowed this was better to uphold the Custome than if particularly tied to pay a Deer out of this Park for now if the Park be disparked yet this payment of the Deer may be performed Otherwise it is if the Custome had been a Deer out of this Park only for then by the destroying of that the Custome is gone also It was holden in this Case by the Judges That although the Deer had been often and for the most part paid out of this Park yet this doth not alter the Custome if it may be paid out of any Park and if the Custome were to pay a Shoulder of Venison generally it may come out of any Park Partridges made Tame do pay not a Predial but a Personal Tithe Pasture yields a Predial Tithe which is generally paid by the Owner thereof and so is the Custome yet Pasture-grounds sed with Cattel that yield profit to the Church have their Tithe satisfied in the Fruit of the Beasts And if they belong to a Stranger who is not of the Parish if he fell the Pasturage he is answerable for the Tenth peny but if he frankly giveth it and the Parishioner freely receiveth it the Parishioner is answerable for the Estimation if the said Grounds be fed with Beasts yielding increase otherwise no Profit at all to the Church if sed only with Horses Oxen and other Barren Beasts And as touching the Pasture of the Horses of Guests the Tithe is to be paid by the Innkeeper for the same But if the said Horses be put into such Pasture as is after a Crop of Hay of the same ground no Tithe is payable by the Innkeeper for the same Nor is the Pasture of such Horses Tithable as the Parishioner useth for his own Riding nor the Pasture of such Horses as are used about Husbandry in the Parish but where Horses are kept or bred in Pasture that they may be sold in that case Tithe shall be paid for the Pasture thereof But if Tithe be demanded for the Pasture of Riding Nags for the Saddle for Labour and Pleasure both but not for Profit properly a Prohibition will lie Nor is the Pasture of Oxen used for Husbandry Tithable that is being used for Husbandry in the same Parish it may be otherwise if they be used for other purposes or for Husbandry out of the Parish Mich. 8 Jac. C. B. in Baxter's Case And as touching Tithe of the Pasture of Guest-Horses by an Innkeeper as hath been formerly mentioned the Case was A. Parson of B. Libelled in the Ecclesiastical Court against C. an Inn-keeper because that the said C. took all the benefit of his Pasture by putting Guest-Horses into the same whereupon C. prayed a Prohibition but it was denied by the Court for that it is Tithable in this case But it was said That if C. had taken a Crop of Hay whereof he paid Tithe and afterwards had put in his Guest-Horses into the After-pasture of that Ground where such Hay was made in that case it had not been Tithable because the Parson had Tithe of the Land before Trin. 16 Car. B. R. Richardson and Cobbell's Case Poph. 142. Also if a man lett out his Pasture reserving the Pasture of a Horse for himself to ride about his Husbandry-affairs Tithe shall not be paid for the Pasture of this Horse but if a man keep and breed Horses in his Pasture to sell them there Tithe shall be paid for the Pasture of such Horses Trin. 15 Jac. B. R. Larking and Wild's Case Poph. 126. Vid. Trin. 9 Jac. B. R. Pothill and May's Case Bulstr par 1. 171. Vid. Agistment Vid. Grass Pease gathered Green to eat in the Parishioners Family no Tithe shall be paid thereof and that per legem terrae But otherwise it is in case they be gathered to sell or to feed Swine therewith in which Tithe shall be paid thereof Pasch 12 Jac. B. per Cur. Pelts or Fells of Sheep dying of the Rot are not Tithable without a special Prescription for it The Case was A. Libelled in the Ecclesiastical Court for the Tithes of Pelts and Fells of Sheep which Sheep died of the Rot a Prohibition was pray'd and granted to stay proceedings in the Ecclesiastical Court because such Pelts are not Tithable unless there be a Special Custome for it Trin. 3. Jac. B. R. Ashton and Willer's Case Pheasants that are Tame pay a Personal not a Predial Tithe If a man hath Pheasants and keep them in an enclosed Wood and clip their wings and they hatch Eggs and breed up young Pheasants no Tithes shall be paid of these Eggs or young Pheasants for that they are not reclaimed but continue to be Ferae naturae
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
Resolved That Tithes should not be paid of the Rakings of Corn unless it be a Covinous Raking to deceive the Parson More Case 1213. Rate-Tithe is that which is paid according to the Custome of the place for the Feeding of Sheep and all other Cattel except Labouring Oxen and young breed of Cattel for the Pasture and Increase thereof whether they fed on the Common or elsewhere Roots of Coppice-Woods grubbed up shall not pay Tithe unless it be by Custome as hath been Adjudged in Skinner's Case Mich. 15 Car. B. R. Marsh 58. In which Case it was also Resolved That if a man cut a Coppice-wood and thereof pays the Tithe and after before any new Sprouts grow he grubbs up the Roots and Stubbs of the Wood he shall not pay Tithes thereof for they are parcel of the Free-hold S SAffron pays a Predial Tithe and is inter Minutas Decimas as appears by Bedingfield and Feaks Case Pasch 38 Eliz. B. R. Where the Farmer of a Parsonage sued in the Ecclesiastical Court for Tithes of Saffron against the Vicar the Vicar pleaded That he and his Predecessors Time out of mind had had the Tithe of all Saffron growing within the Parish The Plaintiff pleaded That the Land where the Saffron was growing this year had been for 40 years before sowed with Corn and because they in the Ecclesiastical Court would not allow the Plea a Prohibition was prayed because the Right of the Tithe did come in debate It was Adjudged That a Consultation shall be awarded Yet Mich. 10 Jac. B. R. per Curiam they are said to be Great Tithes Vid. Bedingfield Feaks Case Cro par 1. Whence it may be observed That by the Ecclesiastical Law the Vicar shall have Tithe of Saffron of Land newly sowed with Saffron albeit the Parson before had Tithe of the same Land being sowed with Corn Salt By Custome Tithe shall be paid of White Salt Trin. 16 Jac. B. R. Case Jones Gower Admit But Prohibition granted on a Modus Sheep if they continue in the Parish all the year the Tithe thereof in kind may be claimed by Custome but if they be sold before Shearing-time and a halfpeny be then claimed to be paid for every Sheep so sold it is held a very unreasonable Custome If Sheep stray out of one Parish into another and there yean no Tithe is payable for this to the Parson of that place but if they go there for thirty daies or more for this a Rate-Tithe is payable to that place for for Sheep removed from one Parish to another each Parson must have Tithe pro rata But under thirty daies no Rate-Tithe is to be paid Likewise Sheep Feeding all the year in one Parish and Couching in another the Tithe shall be equally divided betwixt the Parsons So likewise if Sheep go a while in one and another while in another Parish a Rate-Tithe is payable as aforesaid to both But if Sheep are brought only by Night to dung the Land no Tithe there is to be paid unless they Feed there half their time And if Sheep be brought from one place to be shorn in another where they were not before the Tithe is payable where the shearing is unless it be paid to the Parson of the place from whence they came Trin. 3 Car. B. R. in a Prohibition inter Ashton and Willer And where several mens Sheep feed in one Flock under one Sphepheard they shall be severally Tithed by their respective Owners Lindw c. Quoniam propter verb. Lanae A Prohibition was prayed because the Parson Libelled in the Spiritual Court for the Tenth part of a Bargain of Sheep which had depastured in the Parish from Michaelmass to Lady-day the party Surmized That he would pay the Tenth part of the Wool of them according to the Custome of the Parish The Court would not grant a Prohibition for that by this way the Parson might be defrauded of all and the Sheep being now gone to another Parish he cannot have any Wool at this time because it was not the time of Shearing Spoliation or the Action thereof may be commenced in the Ecclesiastical Court where one Parson takes away the Tithes or Profits belonging to the Church of another Parson if the Tithes and Profits belonging to the Church of that other Parish do not amount to the Fourth part of the value of the Church in which case the one Parson shall have a Spoliation against the other in the Ecclesiastical Court although they claim by several Patrons and if they claim both by one Patron there the one shall have a Spoliation against the other although the Profits do amount to above a Fourth part as to a Third part or to the Moity of the Church because the Patronage doth not come in debate But if the Profits do amount to above the Fourth part of the Church and they claim by several Patrons that if one Parson sueth a Spoliation in the Ecclesiastical Court against the other the party grieved shall have an Indicavit which is in the nature of a Prohibition unto the Ecclesiastical Court because the Right of the Patron doth come into debate But where the Right of Tithes doth only come into Debate and not the Patronage there the Jurisdiction doth belong unto the Ecclesiastical Court Co. Select Cases in the Case de Modo Decimandi 38 39 40 46. 38 H. 6. 20. by Fortescue 26 H. 8. 3. acc And if there be a Contention De jure Decimarum Originem habens de jure Patronatus tunc spectat ad Legem Civilem by the Opinion of all the Justices Mich. 29 El. B. R. in Bushie the Vicar of Paucas Case Godbolt 63. Sylva Caedua doth pay a Real and Predial Tithe by Sylva Caedua is to be understood all such Trees of what kind soever as may be cut and being cut do grow again from the Stock or Root Lindw c. Quanquam ex Solventibus lib. 5. Or all such Wood as may be cut and after Lopping Topping or cutting from the Boughs Branches Stock or Root do grow again by which are excepted Great Trees and Timber-Trees So that of Sylva Caedua and Underwoods Tithes are payable but not of Great Trees or of twenty years growth and that by the Statute of 45 Ed. 3. cap. 3. Whereby a Prohibition will lie in case c. which Statute exempteth Wood of twenty years growth and upwards from the payment of Tithes as Prescription doth such Wood as hath not been Fell'd in the Memory of man yet Wood of the age aforesaid not in use nor apt for Timber is under permission of the said Statute Tithable Body and Bough Felled or Lopped And such Woods as are not Sylva Caedua nor Tithable go under the notion of Gross Woods or Great Wood viz. such as are usually employed for the building of Houses Mills c. as hath been Resolved of which sort are Oak Ash Elm Beech Horn bean and Asp
setting forth of Tithes which Action is to be sued in the Temporal Courts Trees of all sorts regularly and generally except Timber-Trees as aforesaid Root and Branch Body Bark and Fruit used or sold by the Owner are Tithable Tithes shall be paid of Hasel Willows Holley Alder and Maple although above twenty years growth Mich. 5. Jac. B. Resolved and Consultation granted accordingly So that Trees of all kinds not apt for Timber though exceeding 20 years growth nor ever cut before may be Tithable And all Trees under the notion of Sylva Caedua aforesaid Underwoods and Coppices felled and preserved to grow again are Tithable to the Parson when the Owner takes his Nine parts But Trees cut only for Mounds Plow-gear Hedging Fencing Fewel for maintenance of the Plough or Pail be it Underwoods of Coppices Parings of Fruit-Trees or the like are not Tithable but Trees bearing Fruit of all sorts are Tithable in their Annual increase And therefore as to Fruit-Trees as Apples Pears c. the Tenth of the Fruit shall be set out and delivered when they are newly gathered for the omission whereof if loss come to the Parson the Owner is chargeable to him in the Treble Dammages If a man pay Tithes for the Fruit of Trees and after cut down the same Trees and make them into Billets and Faggots and sell them he shall not pay Tithes for the Billets or Faggots for that it is not any new Increase Coke Magna Charta 652. 621. If Trees be Fell'd no Tithes shall be paid of the Roots Coke Pasch 29 Eliz. B. R. nor of the young Sprouts that grow of such ancient Stock M. 12 Jac. B. R. Stampe Clinton Roll. Rep. And as Fruit-Trees pay Tithes in their Fruit so also may young Trees which as yet bear no Fruit pay Tithes in another kind for where a Parson Libelled in the Ecclesiastical Court for the Tithes of young Trees planted in a Nursery upon purpose to be rooted up and sold to be planted in other Parishes The Question was Whether Tithes should be paid for them It was said they were of the nature of the Land and Tithes should not be paid of them no more than of the Mines of Coles or Stones digged or for Trees spent in Fewel in the House But it was the Opinion of the whole Court That forasmuch as he made a profit of such young Trees Tithes thereof should be paid when they are digged up and sold into another Parish as well as of Corn and Carret or other things of like nature Note by the Justices If one cut Trees which are or may be Timber although they be under the age of 20 years no Tithes are due and so it is of new Germins growing under that age And where in a Prohibition for that it was Libelled in the Ecclesiastical Court for Tithes of Timber Trees the Defendant said the Trees were long since aridae mortuae putridae It was the Opinion of the Justices That no Tithes should be paid of those Trees for being above the growth of 20 years they were discharged of Tithes Also in Brook and Rogers Case where a Parson sued in the Ecclesiastical Court for the Tithes of the Boughs of Trees above the age of 20 years growth and the Defendant prayed a Prohibition and shewed that the Trees were aridae siccae in culminibus putridae It was held by the better Opinion that Tithes should not be paid of them In an Action upon the Case Declared whereas by the Statute of 45 Ed. 3. cap. 3. Tithes ought not to be paid for Gross Trees That she had cut down such Timber Trees being above the growth of twenty years and that the Defendant as Parson sued her for Tithes of them against the Statute upon which it was Demurred Resolved by the whole Court That the Action did not lie for none shall be punished for Suing in the Ecclesiastical Court for any matter which is properly demandable there although perhaps he hath no cause of Action But if he Sues in the Ecclesiastical Court for matter which appears by his Libel is not Suable there nor the Court hath Jurisdiction thereof there an Action upon the Case lieth Turkeys Tithes shall not be paid of them nor their Eggs quia Ferae naturae Turves used for Fewel or Firing do pay Tithe and are Tithable as Predial Tithes yet held that Tithes shall not be paid thereof Hill 14 Jac. B. R. per Houghton Hill 11 Jac. B. R. per Cur. Tile-Stones or Brick Tile are not Tithable Tythes or Tithes are a Tenth or otherwise a certain part or portion of the Fruit or lawful Increase of the Earth Beasts or Mens Labour and Industry and are payable by every person having things Tithable that cannot shew a Special Exemption either by Composition Custome Prescription Priviledge or some Act of Parliament And they are to be paid without any Diminution for which reason the Owners of things Tithable ought not to have the Nine parts till the Tenth be first severed there-from And on the other side the Tithe is in no case to be taken by the Parson or Vicar before the same be severed from the Nine parts The Parson de mero Jure is to have all the Tithes if there be no Endowment of the Vicarage and a Vicar cannot have Tithes but by Gift Composition or Prescription for that all Tithes de jure do belong to the Parson In Suit for Tithes it is not necessary to demand the very value for the Duty is uncertain Mich. 16 Jac. B. R. Case Pemberton Shelton Roll. Rep. If Tithes be payable by one who dies before he pays it it must be paid by his Executor if he hath Assets But if the Parishioner setteth forth his Tithes and they stand upon the Land two or three daies and afterwards he taketh or carrieth them away this is not a setting forth of his Tithes within the Statute of 2 Ed. 6. But if the Parson or Vicar shall suffer his Tithes being severed to lie long upon the Land to the prejudice of the Owner of the Ground he may have his Action of the Case And whoever taketh away the Tithes not having Right thereto is a Trespasser Also an Action lieth against a Disseisor for the Tithes or if one cut them and another carrieth them away an Action lieth against either of them And although in the Ecclesiastical Courts no Plea is allowed in Discharge of Tithes yet Lands in the hands of Ecclesiastical persons may be Discharged of Tithes and now since the Statute of 31 H. 8. in the hands of the Kings Patentees also by Suspension Priviledge or Unity And since in the Ecclesiastical Courts no Plea as aforesaid is allowed in Discharge it is nothing strange that the Common Law holds that the Court Spiritual hath not Jurisdiction in matters of Tithes where the Prescription is de non Decimando otherwise where it is de
interdum vicesima aut tricesima And in Heâsloe's Case Co. 9. par it is said That Tithes Quatenus Tithes were Spiritual things and due ex jure Divino and were not accounted as Temporal Inheritances Hence it is That where a Parson leased all his Glebe Lands with all Profits and Commodities rendring 13 s. 4 d. pro omnibus exactionibus demandis and afterwards Libelled in the Spiritual Court against his Lessees for the Tithes thereof It was the Opinion of the Court That Tithes are not things issuing out of Lands nor any Rent or duty but Spiritual and if the Parson doth Release to his Parishioners all Demands in his Lands his Tithes thereby are not extinct and therefore a Consultation was granted And in the like case it hath been Adjudged That the Lessee should pay Tithes to the Parson for that they are jure Divino due and cannot be included in Rent If a Parishioner sets forth his Tithes and sever the Tenth part from the Nine parts justly and truly although he doth not give Personal notice to the Parson nor general notice in the Church of the time of setting forth his Tithes whereby the Parson might be present at the setting of them forth and to see that it be justly done yet it is a good setting forth of the Tithes as in the Case between Chase and Ware in a Writ of Error upon a Judgment in an Action upon the Case against the Parson for leaving his Tithe of Hay upon the Parishioners ground after notice of setting them forth whereby the Parishioner lost his Grass there But it was not alledged that the Parson had notice of the time of setting them forth and yet the Court affirmed the Judgment against the Parson A. Parson in Consideration of 20 s. yearly promised to B. that B. should pay no Tithe for a certain Wood per parol and in Consideration thereof B. promised to pay the 20 s. yearly and this Agreement was during their Lives B. made a Lease at Will of the Wood the Lessee had a Prohibition against him for the Agreement was good and Jermyn demanded what Remedy against the Lesse for the 20 s. Doderidge None but he shall have Action on the Case against B. or his Executors but the Lessee for years may have Action against the Parson if he Sue him in the Ecclesiastical Court. For the Case was There was an Agreement per parol made between S. Parson and B. the Parishioner B. promised to S. for himself his Executors and Assigns to pay him Ten load of Wood and 10 s. for the Tithe of a Wood during the life of S. And S. promised not to Sue him c. for any other Tithe B. dies his Executor made a Lease at Will of the Wood the Question is whether the Tenant at Will may take his Action against the Parson who sued him for other Tithes c. In a Prohibition against a Parson who sued for Tithes it was Surmized That the Clerk of the Parish and his Predecessors Assistants to the Minister had used to have five shillings for the Tithe of the Lands where c. It was the Opinion of the Court That if this Special matter be shewed in the Surmize it might perhaps be good by reason of long continuance But they held that by Common intendment Tithes are not payable to a Parish-Clerk and he is no party in whom a Prescription can be alledged wherefore a Consultation was awarded The Parson of T. sued for Tithe-Wood of the Park of T. for a Prohibition it was surmized That he and all those c. time out of mind c. had used to pay to the Vicar of T. ten shillings yearly for all Tithes of Wood growing in the place and the proof was That he paid ten shillings for discharge of Tithe-Wood in the Park and two other places The Prohibition was denied and a Consultation awarded because the right of Tithes between the Parson and the Vicar came in question and because the party failed in the proof of his Prescription In a Prohibition to stay Suit for Tithes surmizing that he set forth his Tithes and for some reasonable cause he detained part of them And the Parson sued him in the Ecclesiastical Court upon which it was Demurred because by the fetting forth they were Lay-Chattels But the Court held That the Prohibition did not lie for against the party himself who setteth forth his Tithes a Suit is maintainable in the Ecclesiastical Court if he detains them although he might have his Remedy for them at the Common Law Otherwise if they were taken away by a Stranger after they were set forth For a Prohibition it was Surmized That he had used to pay the Tenth sheaf of Corn the Tenth Cock of Hay the Tenth Fleece of Wool and so the like in satisfaction of all Hay Corn Cattel c. And it was held That it was no sufficient Surmize for a Prohibition because that which he used to pay is but the Tenth in kind In Sands and Pruries Case the question was whether Tithes were grantable by Copy It was Objected they could not because it is against the nature of Tithes whereof none could have property before the Council of Lateran and it was impossible there should be any Custome to demise them by Copy when none had interest in them and they cannot be parcel of a Mannor for they are of several natures though united in one mans hands But by the Court Resolved they might be granted by Copy so it had been time so out of mind A Parishioner severed his Tithes but being in a Close the Gate was locked so as the Parson could not come at them The question was whether the Gate were locked or open and thereupon a Prohibition brought The Court was of Opinion that although the Tithes were severed yet they remain Suable in the Ecclesiastical Court and then the other is but a consequent thereof and Triable there and the Prohibition denied In Sharington and Fleetwood's Case it was Resolved That if a Parson Libels for Tithes and a Prohibition is granted and after he Libelleth for the Tithes of another year the first Suit not being determined an Attachment upon the Prohibition lieth against him And in the Case between Talentire and Denton where the Bishop of Carlisle being seized in Fee of Tithes in right of his Bishoprick made a Lease of them for Three Lives rendring the ancient Rent the Tithes having been usually demised for the same Rent It was Resolved That the Lease was not good against his Successor because he had not remedy for the Rent by Distress or Action of Debt Otherwise it had been if only a Lease for years for there Debt lieth for the Rent In Leigh and Wood's Case it was Resolved That if the Owner sets forth his Tithe and a Stranger takes them no Suit shall be for the same in the Ecclesiastical Court
before the Birth of such Child for in that Case he is not reputed a Bastard who cannot inherit Land as Heir to his Father nor can any person inherit Land as Heir to him but one who is Heir of his Body Otherwise it is in case the Child were begotten by him who after the Birth of the Child doth Marry his Mother For in that Case notwithstanding such Marriage subsequent to the Birth the Child is reputed a Bastard in the judgment of the Common Law as being born out of Wedlock though according to the Ecclesiastical Law the Child in that case is reputed as Legitimate But if one Marry a Woman and dye before Night without ever bedding her and she after happen to have a Child within possibility of conception in respect of time computable from such Marriage it seems it shall be accounted his Child and Legitimate 9. If a Child be born within the tenth Month computing thirty days to the Month next after a Mans death it shall be reputed his Child as a Mulier but the most natural time is nine Months and ten days computing twenty eight days to the Month which is forty Weeks or any day in the tenth Month may be natural enough Also the Children begotten under a second Marriage after a Lawful divorce from a former are Legitimate and not Bastards And the Child wherewith the Mother is visibly big when she taketh a second Husband shall be reputed the Child of the former Husband though born after Marriage with the second Otherwise if at her second Marriage she were so privlly with Child as that it could not be discerned understand it with this limitation if by possibility of nature it may be so And if a Widow take another Husband within ten days next after the death of her former and be delivered of a Child eleven days before or after forty Weeks from the death of the said former Husband it shall be reputed the Child not of the former but of the later Husband And in one Thecker and Duncombes Case it was adjudged that a Woman may have a Child in thirty eight Weeks and that by cold and hard usage she may go with Child above forty Weeks which was mention'd by the Court in the Case of one Owen against Jevon in an Action of the Case for saying This is the Whore that my Man C. begat a Bastard on and upon a Verdict for the Plaintiff it was moved in arrest of Judgement that the words are not Actionable because there is no special loss or dammage alledged by the Plaintiff and that in one Lightfoots Case against Pigot it had been ruled that an Action lies not for saying a Woman had a Bastard but it being argued on the other side that the words are Actionable because if they were true the Party of whom they are spoken is punishable by the Statute of 7 Jac. with corporal punishment Judgement was given for the Plaintiff Nisi 10. The punishment of a Woman that hath a Bastard that may be chargeable to the Parish is the House of Correction for one year by the Statute 11. Although in the judgement of the Common Law a Bastard be reputed quasi nullius Filius insomuch that if being seized of Lands in his own right he dye without Issue of his Body they may Escheat yet even by that Law the Bastard in respect of his Mother is said to be a Son But in respect of the the Father he is said to be nullius Filius and therefore in the Case of Ralph Haward and the Lady Anne Powes his Wife in a Writ of Partition it was held that if the Mother dispose of all her Lands holden in Knights Servive to her Bastard-daughter by conveyance in her life-time that the same is out of the Statute of 32 H. 8. because she is but a meer Stranger to the Father because nullius Filia and the said Statute speaks of Lawful generation And in the 39 Ed. 3. 42. in a Praecipe where a Bastard was named Filius J. S. the Writ for that reason did abate For the same reason also it is that in a conveyance by a Father to his Bastard-son natural affection is not a sufficient consideration for that he is a Stranger in Law although he be a Son in Nature And yet it seems if a Grant be made to a Bastard by the Sirname of him who is supposed to beget him it is good if he be known by such Name and yet in truth he is nullius filius And if Husband and Wife divorced causa Praecontractus the Issue hath lost his Sirname for Cognomen Majorum est ex sanguine tractum and the Issue now is Bastard and nullius filius yet because he had once a Lawful Sirname it is a good ground of reputation to make him a reputed Son which is a good Name of purchase And it hath been resolved that a Child begotten by a second Husband living the former of a Woman divorced from the former causa Praecontractus is legitimate and no Bastard But in another case that a Child begotten after Marriage solemniz'd infra annos nubiles and for that cause after divorced is illegitimate and a Bastard 12. A. takes B. to Wife and dies B. after forty Weeks and ten Days is delivered of a Daughter The question is whether the Daughter shall be Heir to her Father or a Bastard The Affirmative prevails and such a Child may be lawful Daughter and Heir to her Father for a Post-natus that is born after the forty Weeks may as well be an Heir as an Ante-natus that is born at the end of seven Months And a Child may be legitimate although it be born the last day of the tenth Month after the conception thereof computing the Months per menses solares non lunares according to the report given upon Oath by the learned Physicians in Alsop's Case If a Man hath Issue born by his Wife forty Weeks and eight Daies after his death as if he dye the three and twentieth of March and the Issue is born the ninth of January next following that Issue shall be held Legitimate for it may be Legitimate by nature and it seems the Common Law doth not limit any certain time for Legitimate Infants to be born p upon evidence at the Barr which concern'd the Heir of one Andrews it was resolved by the Court that Dr. Paddey and Dr. Momford Physicians should being first sworn in that case inform the Court upon their Oaths whether according to Nature such Issue may be Legitimate and they said that the exact time of the birth of an Infant is 280. dayes from the conception viz. nine Months and ten Days after conception accounting it by the Solar months viz. 30. days to each month but it is Natural also if he be born any time of 10 Months viz. in 40 Weeks for by such
of Alimony was commanded to be put out of their Commission And upon that Richardson said to Hitcham move this again when the Court is full for we may advise of this Et adjournat c. One Broke was committed by the High Commissioners to the Fleet because he refused Alimony to his Wife and that being returned upon an Habeas Corpus he was delivered Broke's Case More 's Rep. 18. The Wife complains against her Husband in the Ecclesisiastical Court Causa saevitiae for that he gave her a Box on the Ear and spit on her Face and whirl'd her about and called her damned Whore Which was not by Libel but by Verbal accusation after reduced to writing The Husband denies it and the Court ordered the Husband to give to his Wife 4 l. every Week pro expensis litis and Alimony Barkley and Henden moved for a prohibition The Suit is originally Causa saevitiae and as a Case wherein they Assess Alimony And now for a ground of a prohibition it was said that the Husband chastised his Wife for a reasonable cause as by the Law of the Land he might which they denied and said that they had Jurisdiction in these matters de saevitia c. And afterwards that the Wife departed and that they were reconciled again And then that reconciliation took away that Saevitiâ before as reconciliation after Elopement Richardson it was said here that the Suit was without Libel but that is no ground of a prohibition for she proceeded upon that matter reduced in Articles and we cannot grant a Prohibition if they proceed in their Form For we are not Judges of their Form But if they will deny a Copy of the Libel a Prohibition lies by the Statute You say that an Husband may give reasonable chastisement to his Wife and we have nothing to do with it But only that the Husband may be bound to his good behaviour by the Common Law And the Sentence in Causa saevitiae is a mensa thoro and we cannot examine what is Cruelty and what not And certainly the matter alledged is Cruelty for spitting in the Face is punishable in the Star-Chamber But if the Husband had pleaded a Justification and set forth a Provocation to him by his Wife to give her reasonable castigation then there would be some colour of a Prohibition Henden we have made such an Allegation and it is absolutely refused Hutton perhaps he is in Contempt and then they will not admit any Plea as if one be Out-lawed at Common Law he cannot bring an Action But they advised the Plaintiff to tender a Justification and if they refused it then to move for a Prohibition 19. B. was ordered by the High Commission-Court to give Alimony to his Wife and was bound in an obligation of 300 l. to one of the Doctors there to give her Alimony and to use her as his Wife And now he is sued there again and it is alledged against him that he had committed Adultery with divers Women and that he had not given Alimony to his Wife and thereupon B. was put to his Oath who answered that as to the point of Alimony he was not bound to answer for that he was bound in an obligation to perform it and also that he was sued to discover upon his Oath the forfeiture of the Obligation and for that the Defendant would make no other answer he was committed to Prison and being brought hither by Habeas Corpus the Court was prayed that he might be released for the reason aforesaid Coke Gawens Case which was ruled here in Wrays time was the same Case in effect and it was ruled that the Ecclesiastical Court may not examine him upon his Oath in such Case and per Curiam B. was Bailed till the next Term for that that was the last day of the Term. Coke for that there is an obligation taken in this Case I will grant a Prohibition for taking an Obligation for that if it be moved and it was not well done to take the obligation to one of the Doctors but we use to take the obligation in the Kings Name Mich. 5. E. 4. B. R. Rot. 143. The Statute of 2 H. 4 gives authority to Bishops to Fine and Imprison for Heresie And where one Reser had given a Legacy to Bishop Stephens for which he sued the Executor who being for not payment thereof Excommunicated said that he was not Excommunicated before God although he were before Men for his Corn grew very well for which words he was after Imprisoned but he was bailed here per Curiam upon an Habeas corpus for that it was not Heresie because that Court hath Authority to examine such things which are given by the Statute of 10. H. 7. One said that the Tenth part of Tythes was not due Jure Divino for which words he was Imprisoned whereupon the Habeas Corpus was brought and that depended till 14. H. 7. at which time it was adjudged that it was not Heresie and that the Court had Jurisdiction to examine that it being given by Statute And it seems to me that the High Commission Court had not power to Fine or Imprison for Alimony Hill 12. Jac. upon an Habeas Corpus by one Codd the return was that he was Imprisoned by the High Commission by that Warrant viz. We command you to take him and Imprison him for manifest Contempt to the Court for that he being ordered to receive his Wife and to enter into an obligation to use her as his Wife he refuses so to do Coke he shall be Bail'd for that he could not be imprisoned by them for Alimony nor take obligation to perform their order Sentence was given in the Ecclesiastical Court that the Wife should be separated from her Husband propter saevitiam of the Husband and Alimony allowed her there the Husband prayed a Prohibition setting forth he desired a Cohabitation and proffered Caution thereby to use her fitly The Court denied it because the Court of the Ordinary is the proper Court for allowance of Alimony A Libel was before the High Commissioners which supposed divers cruelties used by the Husband against the Wife for which she was enforced to depart from him who would not allow her maintenance and therefore she sued before them for Alimony But because it is a Suit properly suable before the Ordinary wherein if there be wrong the party may have an appeal and although it be one of the Articles within their Commission to determine of yet because it is not any of the clauses within the Stat. of 1 E. 6. for which causes the Commission is ordained the Court awarded a Prohibition CHAP. XXXVII Of Defamation 1. What Defamation is how many ways it may be and where Cognizable 2. Two ways of prosecution at the Civil Law in Causes of Defamation 3. Prohibition for suing in the Ecclesiastical Court upon the words Drunkard and Drunken Fellow 4. Several differences in
cap. 19. g Kitchin fol. 64. h d. Stat. 9 H. 6. 11. i Vid. Bro. tit Bastardy nu 29. k Câ 8. 102. â 65 sup Litt. 244. l St. 20. H. 3. c. 9. 1 H. 6. 31. Co. on Litt. 244. m 48 Ed. 4. 28. and Broo. Sect. 48. and 93. E. 3. 32. n 39 Ed. 3. 14. 7 H. 4. 9. 18. Ed. 4. 26. o 43 E. 3. 19. 7 H. 4. 9. 7 H. 5. 9. 44 E. 3. 10. 1 H. 6. 17. Co. on Lit. 244. p Rid l. view of c. par 3 cap. Sect. 2. q Sir Walter Sand. vers Adams and Cuâwin post dict cale in Noy's Rep. r Glanvil lib. 3. cap. 13. s Ridley ubi supra t ibid. l 18 E. 3. 40. m D. 1. Bastardy 55. 39. E. 3. 31. b. per Thorp n 10 H. 6. cap. 11. o 7 H. 6. 32. b. p 20 H. 6. 1. q 18 E. 3. 34. Mich. 20. Jac. B. R. Elborough versus Allen. Roll. Rep. u Term of Law Verb. Bastardy x Littl. Sect. 401. Fitz. B. 20. y St. 20. H. 3. 9. and 1 H. 6. 3. Co. on Lit. 244. Quia subsequens matrimonium toltir culpam praecedentem z Vid. Engl. Lawyer 117. a Co. sup Litt. 123. Arsop's Case M. 17. Jac. B. R. b Co. 4. 29. c 21 Ed. 3 39. d 18 Ed. 1. Com. Bedf. Case R. 13. B. R. e Trin. Pasch 1651. rot 211. B. R. Owen vers Jevon Styl Rep. f 77 Jac. cap. 4. g Littl. 41. b. h Vid. 11. H. 4. 75. i Vid. 13. Eliz. Dyer 296. and 14 Eliz. Dyer 313. Hugh Abridg. verb. Bastard k Mich. 23. Eliz. Dyer 374. Werselâ Case l Co. 6. par 65. in Sr. Moile Finch's Case m Mich. 28. El. Coke par 4. 29. Bantiâg and Lepingwells Case n Co. 7. par 42 43. âenns Case o Mich. 17. Jac. B. R. Alsop and Bowtrels Case Cr. 2. par 321. Godb. 281. the same case Mich. Jac. B. R. Bract. lib. 5. f. 417. b. r Vid. Co. 8. par Case of the abbot of Strata Marcella s Vid. 7. E. 6. Dyer 79. t Trin. 14. Jac Hob. Rep. Trin. 9. Car. B. R. 248. Cro. 1. par Pidgeons Case ibid. 255. acc Pasch 19. Car. B. R. Slaters Case Cro. 1. par 337. y Pasch 17. Jac. B. R. Webb and Câoke Case Cro. 2. par 5 5. and 625. z Cook 7. par 44. acc Kenns Case a Mich. 28. Eliz. Cook 4. par 29. Banting and Lepingwith Case Hugh Abr. verâ Bastard Cas 6. b 18. H. 6. 31. 18. E. 4. 30. b. Co. 7. Kenn 44. c 38. Ass 24. Adjudg d 18. H. 6. 34. b. e 18. H. 6. 32. 39. E. 3. 31. b. f 47. E. 3. i 14 b. 11. H. 4. 84. 18. E. 4. 30. 39. E. 3. 31. b. 38. Ass 24. g Trin. 3. Jac. B. R. inter Stile West h Hill 14. Jac. in Camera Stellata inter Done Egerton Plaintiffs and two Hintons and Starkey Defendants so held by the Chancellor and Montacule but Hobart e contra i 40. E. 3. 16. b. 21. E. 3. 89. 39. E. 3. 31. 31. Ass pl. 10. 2. E. 3. 29. per Herle and Yond k 14. E. 3. 12. b. 45 E. 3. 28. l 1 H. 6. 3 contra 44. Ed. 3. 12. b. 45. E. 3. 28. cont 18. H. 6. 31. b. m 18. E. 4. 3 n Hill 14. Jac. Cam. Stellat ubi supra o 1 H. 6. 3. 43 E 3. 18. b. 20. 81. E. 4. 30. Hill 18. Jam ibid. Cam. Stellat p 40. E. 3. 20. Ass 8. q 18. H. 6. 17. r 18. H. 6. 34. s 1. H. 6. 3. b. n 47. E. 3. 14. b. 11. H. 4. 84. o 11. H. 4. 84. Bracton l. 5 f. 4 6 617. p 18. E. 4. 24. b. q 18. E. 4. 30. r ibid. 1. H. 6. 3. s 18. E. 4. 30. 43. E. 3. 19. b. 20. t 40. E. 3. 16. u ibid. x 18. E. 4. 30. b. Co. 7. Kenn 44. 18. H. 6. 31. y 47. E. 3. pl. 78. 18. H. 6. 34. z 47. E. 3. 78. cont 29. E. 1. Bastardy 21. cur a ib. 47. E. 3. b ib. 47. E 3. 78. c More 's Rep. d Mich. 26. and 27. Eliz. Bantings Case More 's Rep. b Mich. 28. Eliz. in Cor. Warder Morris and Webberâ Case Moore 's Rep. Mich. 9. Jac. En le Court de Castle-Chamber en ââââââland Danis Rep. Le course del Trial de Legitimation and Bastardy De Legitiââtate a Co. par 7. Kerah's Case b Aquin. supplem 3. par q. 51 52 53. praesertim in 4. Dist 34. q. 1. a. un c Co. par 6. 66. and Dyer 105. d Lib. Ass 19. An. pla 2. e Co. par 5. 93. and Dyer fo 178. o Term. Pasch 30. Ed. 1. coram rege Co. Inst par 3. cap 27. a Canons Ecclesiastical Edit 1603. d St. 1 Jac. cap. 11. e St. 25. H. 8. c. 19. f Porters Case Co. rep g Sir H. Spelm. Concil de Concil Arelat Can. 10. h Dame Powells Case against Weeks Noy Rep. i Co. Instit 3. par cap. 17. Polygamy k Bury's Case Co. 5. part 98. l Mat. 5. 32. m Deut. 24. 1 2. Beza in Luke 16. 19. Levit. 20. 10. and Deut. 22. 22. n Sum. Host lib. 3. de Divortiis nu 14. y Spelm. Concil de Concil Herudford art 10. z Idem de Synod Sancti Patricii Sect. 19. a Mat. Paris Hist Angl. p. 455. o D. Hieron in Mat. tom 5. 190. F. and 188. C. and 185. D. p D. Ambros ubi supra q Hill 44. Eliz. Rye vers Fulcombe in Noy's Rep. and More Rep. Case 893. r Dame Powell vers Weeks Noy's Rep. s Agar's Case in Brownl Rep. pa. 2. t Trin. 20. Car. 2. C. B. Rot. 2043. Harrison vers Doctor Burwell Vaugh. Rep. Arg. u Cro. 33. El. 228. Mann'â Case vid. dict Case Harrison vid. Case Hill vers Goâd in Vaugh. Rep. Co. 5. Buries Case 40 Eliz. C. B. Pasch 12. Car. B. R. Porter's Case Cro. par 3. Vnderhill and Brooks Case Cro. par 1. Mic. 43. and 44. Eliz. B. R. Riddlesdeâ Wogan's Case Cro. par 1. Sir Tho. Simmond's Case More 's Rep. Co. Inst par 3 cap. 27. vid. 22. E. 4. Consultation 5. Pains Case lib. 9. fo 72. Co. ubi supra Co. ibid. a St. Westm 2. cap. 34. b Rot. Claus An. 7. H. p. 1. m. 3. c supra verb. Adultery vers sin s Mich. 8. Car. C. B. John Owens Case Hetley's Rep. t Dame Sherley's Case Hetleys Rep. u The Wife of Mr. Clobery against her Husband Hetley's Rep. Mich 12. Jac. B. R. Bradstons Case Roll's Reports Hill 12. Jac. B. R. Hyats Case Cro. p. 2. All Actions of Defamation suppose in additu quam plupalavit c. Case Barrew against Lewâlling Hob. rep Vid. Stat. 2. E. 3. c. 11. e Mich. 8. Car. B. R. Cuckowes Case Jones Rep. f Trin. 7. Car. B. R. Anonymus Jones Rep. g Anonymus Latch Rep. h Davies vers Gardner Poph. Rep. Vid. did
H. 6. 19. per Prisot y 8 E. 4. 24. b. per Curtam 5 H. 7. 20. b. per Reble and 22 H. 6. 30. per Mark. z Rol. Abr. Ver. presentment lit P. pag. 384. a 21 H. 6. 44. 34. H 6. 40. b 21 H. 6. 44. c 34 H. 6. 11. b. per Prisot 34 H. 6. 38. d 34 H. 6. 11. b. e ibid. per Prisot f 21 H. 6. 44. 45. Rollâubi supra g 34 H. 6. 12. per curiam h F. N. B. Spoliation fo 36. b. vid. Casâ Edes vers the Bishop of Oxford in Vaugh. Rep. i 38 H. 6. f. 19. Br. Spoliation pl. 4. O. N. B. 33. b. F. N. B. 54. Finch Nomotexnia p. 138. Bird and Smiths Case More 's Rep. Roberts and Amond shams Case More 's Rep. Mich. 13. Jac. B. R. the Kings case against Zakar Bulst par 3. F. N. B. 175. b. Finch ubi sup p. 135. Stamf. 133. Cap. 40. sect 7. in fin sect pag. 564. THE INDEX Referring to PAGE and PARAGRAPH abby-ABBY-Lands how many ways priviledged or dischargââ ãâã Tithes p. 383. How the Abby of Battel came to be dispensââ with from Visitation p. 108. Sect. 8. When and by whom ãâã Abby of Westminster was founded p. 328. Sect. 5. Abbot whence that word is derived and what it signifies p. 326 327. Sect. 1. How many Abbots anciently in England p. 327. Sect. 1. and 328. Sect. 5. They were reputed as Peers p. 327. Sect. 2. Some were Elective others Presentative p. 328. Sect. 5. When and by whom made Elective p. 331. Sect. 7. Three Abbots condemn'd at once for denying the Kings Supremacy p. 10. Sect. 14. Abeyance what p. 183. Sect. 9. and 189. Sect. 8. and 284. Sect. 3. Abjuration The form thereof anciently p. 141 142. Sect. 8. Absence of the Husband from the Wife what requisite to cause a Divorce p. 494. Sect. 2. Abstinence or Fasting Days the Original thereof in England p. 130. Sect. 44. Acceptance of Rent by a Bishop whether it shall bind him p. 38. Sect. ult By a Parson whether it confirms the Lease made by his Predecessor p. 189. Sect. 8. Accessories determinable in that Court which hath cognizance of ãâã Principal p. 114. Sect. 11. and p. 123. Sect. 25. Accompt in what case an Executor shall not be compelled thereunââ p. 116. Sect. 12. Acorns Whether Tithable p. 383. Action upon the Case in what Case it may lye at Common Law for suing in the Ecclesiastical Court p. 444. Administrator how he may make his own Goods ãâ¦ã Debts p. 86. Sect. 11. Admission what and under what qualification ãâ¦ã p. 272. Sect. 6. the form thereof p. 272. Sect. 7. Admittendo Clerico in what Cases that ãâ¦ã Adultery where Cogniâable and ãâ¦ã Advocatio Medietatis Ecclesiae Medietatis Advocationis Ecclesiae the difference in Law between them p. 206. Sect. 2. Advocatione decimarum what that Writ imports p. 647. Sect. 7. Advowe or Avowe who properly such p. 206. Sect. 2. and p. 213. Sect. 14. Advowson what and whence derived p. 205. Sect. 1. Twofold p. 206. The Original thereof p. 207. Sect. 3 A Temporal non Spiritual Inheritance p. 209. Sect. 6 7. How Advowson in Gross differs from Appendant p. 210. Sect. 8. Whether it may be extended p. 182. Sect. 7. By what words in a Grant it may pass or not p. 211. Sect. 10. p. 214 Sect. 15 16. Whether it may be Assets p. 214. Sect. 15. Whether the Advowson of a Vicarage endowed belongs to the Parson or the Parsons Patron p. 216. Sect. 21. Whether the Advowson of a Vicarage doth pass by the Grant of the Vicarage p. 219. Sect. 24. Three Original Writs of Advowsons p. 216. Sect. 20. Aftermath and Aftergrass whether Tithable p. 384. Age at what age a Minor Executor may administer p. 219. Sect. 16. Agistment what and whether Titheable p. 384 385. Agreement between Parson and Parishioner touching Tithes p. 373. Sect. 47. and p. 385 386. Good for years without Deed not so for Life p. 379. Sect. 69. and p. 386. Alcheron how severely it doth punish Adultery p. 471. Sect. 6. Aldermanus anciently what p. 96. Sect. 1. Aliens whether presentable to a Church in England p. 264. Sect. 26. and p. 272. Sect. 6. Alimony what p. 508. Sect. 13. where cognizable p. 510. Sect. 16. 18 19. In what Cases the Law allows Alimony or not p. 509 510. Sect. 14 15. whether due to her that Elopes p. 508. Sect. 13. Alms or things appointed for that end whether Tithable p. 386. Altarage what p. 339. Sect. 1. whether Tithe Wool or Tithe Wood shall pass by the word Altaragium p. 341. Sect. 3. p. 342. Sect. 4 5. St. Andrews in Scotland when and by whom the Bishop thereof was made Metropolitan of all Scotland p. 18. Sect. 9. Animalia Utilia Inutilia the difference between them in reference to Tithes p. 360. Sect. 17. and p. 386. Annates what by and to whom payable p. 335. Sect. 1. The Original thereof p. 337. Sect. 2 3. vid. First-fruits Annua Pensione what that Writ imports p. 648. Sect. 14. Anselme Archbishop of Canterbury the first that made Appeals to Rome p. 97. Sect. 1. and p. 118. Sect. 13. The first Archbishop of Canterbury that was Legatus Natus p. 98. Sect. 1. Apparitor Action against such for false informing p. 88. Sect. 14. vid. Summoner Appeals to Rome prohibited p. 9. Sect. 14. p. 118. Sect. 13. They are made to the King in Chancery p. ibid. Appeal out of Ireland to the Delegates in England in what case p. 407. vid. Delegates Appellatione remota the effect of that clause in Law p. 117. Sect. 13. Apples what Tithes they pay whether small to the Vicar or great to the Parson p. 361. Sect. 21. p. 386. In what case they may not be Tithable p. 371. Sect. 44. Appropriation what p. 223. Sect. 3. The original thereof p. 221 222. Sect. 1. Whether it may be made without the Kings License ibid. and p. 198. Sect. 3. Whose Assents are requisite thereunto p. 222. Sect. 1. How they are now chang'd in their use and end from what they were originally p. 223. Sect. 2. Whether they might formerly be granted to Nunneries p. 223. Sect. 2. and p. 225. Sect. 5. They may not now as to their Original be called into question p. 226. Sect. 6. How a Church Impropriate may become disappropriate p. 229. Sect. 12. Arabians their strange conceit of Adultery p. 471. Sect. 6. The punishment thereof with them Capital ibid. Arable Land left Fallow and untill'd every other year whether Tithable that year p. 394. Archbishop whence so called A description of that Dignity p. 12. Sect. 1. What difference between Archbishop and Metropolitan p. 15. Sect. 3. Three Archbishops in England and Wales anciently p. ibid. Sect. 4. How that in Wales came to be lost and when p. 17. Sect. 6. None in Ireland until the year 1152. p. 20. Sect. 13. In what Cases an Archbishop may call
and Godmothers in Baptism the Original thereof p. 49. s 7. Grain pays a Predial Tithe p. 411. Grant of Tithes whether good without Deed p. 386. Grass what Tithes that pays and how p. 410 411. Grass-cocks Tithed p. 374. s 50. Grave-Stone taken away whether Actionable and where p. 157. s 42. Gravel whether Tithable p. 411. Grounds lett to Strangers out of the Parish who answers the Tithe ibid. Guardian of the Spiritualties his Office and by whom Constituted p. 39. sect 1. p. 41. s 4 5. His power in the vacancy of an Archbishoprick p. 40. s 2. What Remedy in case he shall refuse to grant Faculties or Dispensations where they may or ought to be granted p. 40. s 3. H. HAlimots anciently what p. 97. Sect. 1. Hay the Law touching Tithe Hay p. 412 413. Whether the Tithes thereof may belong to the Vicar p. 381. s 77. Two Crops of Hay from the same ground the same year whether both Tithable p. 412. Hazel Holly Willows and Whitethorn in what cases they may be Tithable or not p. 377. s 62. Head-Lands whether Tithable p. 359. s 16. p. 369. s 39. p. 374. s 52. Hearth-peny the ancient Custome thereof p. 367. sect 35. p. 372. s 46. Heath Furse and Broom in what cases Tithable or not p. 413. Barren Heath-ground in what sense excused of Tithes for the first Seven years p. 375. s 53. Hedging and Fencing-Wood whether Tithable p. 370 371. s 43. Hemp what Tithes that pays p. 413. p. 366. s 32. Heyfers whether Tithes due for the Herbage thereof p. 370. Sect. 43. Henry de Blois Brother to King Stephen was Bishop of Winchester p. 37. Sect. 16. Henry de Beaford Brother to King H. 4. was also Bishop of Winchester p ibid. Herbage what and how Tithable or not p. 370 371. Sect. 43. p. 413. Herbage of Sheep whether Tithable p. 464. Heresie what and whence the word derived p. 560 561. Sect. 4. Threefold ibid. Where Cognizable p. 561 562. Sect. 6. How punished p. 562 563. Sect. 7. It is Lepra animae ibid. Hereticks an Alphabetical Catalogue of such their Errors and Heresies the Times and places when and where broached and the Councils wherein they were condemned p. 164 165 c. High Commission-Court the Constitution thereof p. 11 12. Sect. 14. What the power thereof was p. 118. Sect. 14. Hoel-Dha his Law against fighting in the Church-yard p. 140. Sect. 6. Honey whether and how Tithable p. 413 414. Hoods to be worn by Proctors in the Arches when and by whom first enjoyned p. 103. Sect. 4. Hops what Tithes they pay and how Tithed p. 414. Whether Great Tithes to the Parson or Small Tithes to the Vicar p. 366. Sect. 32. Whether they may not belong to the Vicar by Prescription p. 381. Sect. 77. The difference in Kent as to Tithes between Hops in Orchards and Hops in Gardens p. 366. Sect. 32. Hop-poles whether the Wood thereof Tithable or not p. 414. Horses for Husbandry whether their Pasture be Tithable p. 371. Sect. 43. Hospitallers either Lay or Spiritual by whom Visitable p. 34. Sect. 18. They were discharged of Tithes p. 402. Houses being Dwelling Houses where Tithable p. 414 415. Hubert Archbishop of Canterbury p. 7. Sect. 11. Hundred-Court the Antiquity thereof and Extent anciently of its Jurisdiction p. 96. Sect. 1. p. 84. Sect. 7. I JAde to call one Welch Jade whether Actionable and where p. 522. Sect. 17. Jealousie how the Civil Law proceeds therein p. 472. Sect. 7. Ideocy in what case Triable in the Ecclesiastical Court p. 120. Sect. 17. Jewish Hereticks who such anciently and what their Heresies p. 580 c. Sect. 9. Impotency in a Man how to be proved p. 493. Sect. 1. Impropriations how many within York Diocess p. 14. Sect. 2. vid. Appropriations Ina the Saxon King whether he the first that gave Peter-pence to the Pope p. 112. Sect. 8. His Law against Striking in the Church p. 140. Sect. 6. Incumbent what p. 317. Sect. 1. Legal Requisites to make a Compleat Incumbent p. ibid. His Rights p. 318. Sect. 2. Indians their severe punishment of Adultery p. 471 472. Sect. 6. Indicavit what that Writ imports the end and use thereof in what cases and for whom it may be awarded p. 647. Sect. 6. p. 439. Induction what and how executed p. 278. Sect. 16. Whether it be a Temporal Act and cognizable in the Temporal Court p. 279. Sect. 17. Infant if under age Admitted and Instituted to a Benefice it is void p. 280. Sect. 20. Whether Action lies against a Minor under Seventeen years of age for Slandering p. 524. Sect. 23. Ingulphus Abbot of Crowland his Report touching Appropriations p. 280. Sect. 1. Institution what the Form thereof Requisites thereto and what Remedy if denied p. 274. Sect. 8. Institutions are cognizable in the Ecclesiastical Court p. 123. Sect. 28. The difference between the Civil and Common Law touching Institutions p. 276. Sect. 9. Whether it works a Plenarty without Induction p. ibid. Sect. 11. p. 280. Sect. 18. p. 281. Sect. 21. Ireland until what time under the Archbishop of Canterbury p. 20. Sect. 13. Isle of a Church who may prescribe to it p. 138. Sect. 4. or whether it may be peculiar to a Family p. ibid. Sect. 5. p. 158. Sect. ult Jurisdiction Ecclesiastical and Temporal the Original of that distinction p. 133. Sect. 44. Juris utrum for and against whom that Writ lies p. 205. Sect. 1. Jure Patronatus what that Writ imports p. 206. c. How the Law proceeds therein p. 179. s 2. In what case the Bishop may make use thereof and his power therein p. 33. s 16. At whose charge it is to be p. 180. s 3. What Jus Patronatus is p. 205. s 1. Jus Canonicum the Original thereof p. 132. s 44. K KAnute King his strict Law concerning Abbots p. 328. Sect. 3. Knave whether Actionable to call one so p. 517. s 4. p. 524. s 21 24. L LAmbs how Tithable p. 416. They yield a small Tithe and may belong to the Vicar p. 198. Sect. 3. p. 359. s 16. In what case they may be Great Tithes and payable to the Parson p. 366. s 32. Lands accruing to the Crown by the Statute of Dissolutions whether they shall pay Tithes p. 416. Lapse what p. 242. s 1. The Original and gradations thereof ibid. The difference between the Common and Canon Law as to the time of Lapse p. 245. sect 2. When the Six Months shall commence ibid. How the Six Months before a Lapse are to be computed by Daies and how Notice shall be given to the Patron or not before the Lapse incurrs p. 247. s 4. Whether a Grant may be made of a Lapse p. 248. s 5. A Lapse is more a Trust than an Interest ibid. From what time the Lapse shall incurr ibid. s 6. In what case the Lapse may incurr to the Ordinary notwithstanding a Quare Impedit brought by the Patron p.