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
by some particular persons like unto the Reasons of a Chappel of Ease 4. Touching the Reparation of Churches it hath been Ruled That he who hath Land in a Parish though he doth not inhabite there shall yet be chargeable to the Reparation of the Parish-Church but not to the buying of the Ornaments of that Church for that-shall be levied of the Goods of the Parishioners and not of their Lands by Sir Hen. Yelverton and said to be so formerly adjudged And it hath been holden That if two Churches Parochial be united the Reparation shall be several as before And although the Lord of a Mannor may prescribe to a certain Seat or Pew in the Church by having time out of mind maintained and repair'd the same at the proper costs of himself and Ancestors yet as to the Common Seats of the Church it is otherwise in respect of the Common Parishioners As in the Case of Harris against Wiseman against whom Harris had procured a Prohibition Wiseman having Libelled in the Ecclesiastical Court against him for a Seat in the Church which did belong to his House and it was said by Hobart and Winch only present That a man or a Lord of a Mannor who had an Isle or a Seat in the Church c. and he is sued for that in the Spiritual Court he shall have a Prohibition but not every common Parishioner for every common Seat yet in that case a Supersedeas was granted to stay the Prohibition It hath also been held That the Grant of a Seat in a Church to one and his Heirs is not good for the Case of Brabin and Tradum was That the Church-wardens of D. had used time out of mind to dispose and order all the Seats of the Chuch whereupon they disposed of a Seat to one and the Ordinary granted the same Seat to another and his Heirs and excommunicated all others who afterwards should sit in the Seat and a Prohibition was prayed and granted for this Grant of a Seat to one and his Heirs is not good for the Seat doth not belong to the Person but to the House for otherwise when the person goes out of Town to dwell in another place yet he shall retain the Seat which is no reason and also it is no reason to excommunicate all others that should sit there for such great punishments should not be imposed upon such small Offenders an Excommunication being Traditio diabâ—la 5. In the Case of Day against Beddington and others upon a Cross-Bill between the parties for pulling down of painted Glass Pictures and Arms in a Window in an Isle of a Chappel in the Parish of Wellington in Somerset these points in the Case were Resolved 1. If an Inhabitant there and his Ancestors time out of mind c. have used to Repair an Isle in a Church and to sit there with his Family c. and to bury there that makes that Isle proper and peculiar for his Family Otherwise if he had not used to Repair it at his own costs but with the charge of the Parish then the Ordinary may appoint who shall sit there from time to time notwithstanding a use to sit there only to the contrary 2. If any Superstitious Pictures are in a Window of a Church or Isle c. it is not lawful for any to break them c. without License of the Ordinary and if any does to the contrary he shall bind him to his good Behaviour And so it was in Prickett's Case 3. That the Ordinary or Church-warden cannot License a Parishioner to Bury within the Church But it ought to be Licensed by the Parson for the Franktenement is in him only 4. If Coats of Arms are put in a Window or upon a Monument in the Church or Church-yard they may not be broken by the Ordinary Parson or Church-wardens or any other for the Heir shall have his Action upon the Case for that 9 Ed. 4. 14. for they belong to him 30 Ed. 3. 9. b. c. 5. If one be Assaulted in the Church or within a Church-yard he may not beat the other or draw a Weapon although it be in his own defence there for it is a Sanctified place and he may be punished for that by 2 Ed. 6. And so if in any of the King's Courts or within view of the Courts of Justice because a Force in that case is not justifiable though in his own defence 6. For the penalty of Striking or drawing a Weapon in the Church or Church-yard Vid. Stat. 5 Ed. 6. cap. 4. whereby it is enacted That if any person shall by words only quarrel chide or brawl in any Church or Church-yard it shall be lawful for the Ordinary of the place upon proof by two Witnesses to suspend the Lay-Offender ab ingressu Ecclesiae and the Clerk-Offender from the ministration of his Office for such time as to the said Ordinary shall seem meet And if any one shall smite or lay violent hands upon another in any Church or Church-yard in that case ipso facto the Offender shall be deemed Excommunicate But and if any person shall maliciously strike another with any Weapon in any Church or Church yard or to the intent of striking another with the same shall but draw a Weapon in any Church of Church-yard the Offender being thereof duly convicted shall lose one of his Ears if he hath any or in one of his Cheeks with a hot-Iron be burnt and mark'd with the letter F in case he hath no Ears and besides shall stand ipso facto Excommunicated Upon this Statute there was an Indictment against Jasper Colmley and John Colmley of Hoxton in the County of Middlesex for that they Insultum fecerunt upon John Higham Dr. of Physick in Ecclesia de Shoreditch praedicta Et praedict Joh. Higham adtunc c. ibidem in Ecclesia praedict de Shoreditch verbaraverunt vulneraverunt male tractaverunt contra formam Statuti c. Upon this the Grand Jury find Billa vera quoad Jasper Colmley and Ignoramus for John Colmley And hereupon he appeared and pleaded Not guilty and found against him Rolls now moved in an Arrest of Judgment That the Indictment was not good being Fecerunt whereas it is found only Billa vera against one Sed non allocatur because it was exhibited against Two and it is but false Latin Secondly because the Indictment is contra formam Statuti and this Offence is not punishable by the Statute unless that he smote with a Weapon or drew a Weapon in the Church or Church-yard or drew a Weapon to that intent which is not mentioned in the Indictment And by the Second clause in the Statute For smiting or laying violent hands it is Excommunication ipso facto and it is not mentioned here how he struck and thereof the Justices doubted But Jones said That the Indictment is good for Battery at the Common Law But all the other Justices were against him
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
may consult the Authors in the Margent The Parson of Henley brought an Action of Debt for 600 l. upon the Statute of E. 6. for not setting forth Tithes of Wood and shews that the Defendant had cut down 200 Loads of Wood to the value of 200 l. and saith that the Tenth part of that did amount to 200 l and so he brought his Action for 600 l. upon the Statute And the Plaintiff was Non-suit for one fault in his Declaration for whereas he declares the price of the Wood to be 200 l. it was mistaken for it should have been 2000 l. for he demanded more for the Tenth part than the Principal is by his own shewing If a man buy Wood Tithable and burn it in his own House he shall not pay Tithes thereof as hath been Resolved And no Tithes shall be paid for Wood cut and employed for the enclosures in the Husbandry Also if a man cut Wood and burn it to make Brick for repairing of his Dwelling-house for himself and his Family within the Parish no Tithes shall be paid for that Wood in regard the Parson hath benefit by the labour of the Family otherwise it is in case the Bricks were only to enlarge his house within the Parish and more than needful for his Family as for his pleasure or delight If a man sell Wood to me and I burn it in my house the Vendor shall stand charged for the Tithes thereof and not the Vendee for no Tithes are due for Wood burnt in the Parishioners house as hath been Resolved Pasch 14 Jac. in B. Parson Ellis Drakes Case and Prohibition granted accordingly Although it was said That by the Civil or rather Canon Law the Parson hath his Election to Sue either of them which is contrary to the Common Law In the Lord Clanrickard's Case against Dame Denton the Plaintiff surmized to the Court That all the Vill. of Kent which is a Precinct containig above forty Parishes time out of mind c. have been discharged of the payment of Tithes of Wood under the age of 20 years and the Defendant had sued him in the Ecclesiastical Court and hereupon had a Prohibition And the Defendant Traversed the Custome which a Jury was taken at the Bar to try and for inducement of the Custome Lindwood was produced in Cap. de Decimis where it is said That before that time Tithes were not paid for Wood which is contrary to the Old and New Testament and that Assertion is made by Stratford Archbishop of Canterbury for that this was a Provincial Constitution that at that time viz. 17. E. 3. Tithes of Sylva caedua shall be paid By which Constitution the Comminalty finding themselves grieved exhibited a Bill in Parliament the same year 17 E. 3. reciting the Ancient Usage of not paying such Tithes and the last Constitution to the contrary and prayed a Prohibition to the contrary To which Bill answer was made in this manner viz. Be it done in this case as it hath been done before this time And the next year another Petition was made in Parl. for the same cause to which it was answered also That where Tithes of Wood have not been used to be paid by Custome that a Prohibition shall be granted And these Acts of Parliament the Plaintiffs Counsel produced out of the Parliament-Rolls Crook Justice gave the Rule viz. Quod de grossis aâ—boribus Decimae non dabuntur sed de Sylva Caedua Decimae dabuntur Vid. Dr. Stu. 164. a. 169. b. Anscombe said The Doctor and Student mistook the maker of that Constitution of Stratford Archbishop In a Prohibition for Tithes of Wood it was suggested That in the Parish there is a Custome that all the Parsons of the said Church time out of mind Habuerunt gavisi fuerunt such Lands parcel of the Manner of F. in recompence of all Tithe Wood within the Parish It was the Opinion of the Justices that it was a good Prescription for it may be that at the beginning all the Land was parcel of the Mannor and then the allowance of the Profits of this Land was alotted in discharge of the Tithes of all the Woods within the Parish In Prohibition to stay a Suit in the Ecclesiastical Court for Tithes Wood it was shewed that the Custome of the Parish is That the Owners of any House and Land in the Parish who pay Tithe to the Parson ought not to pay Tithe for Wood spent for Fuel in their Houses It being found for the Defendant the Issue being upon the Custome It was said That notwithstanding there were any such Custome yet Tithe ought not to be paid for Wood spent for Fuel nor for Fencing-stuff but per Legem terrae he ought to be discharged thereof Resolved It is not de jure per Legem terrae that any one is discharged of them for it is usual in Parishioners to alledge a Custome but not to alledge that per Legem terrae he is discharged And in this case the Plaintiff in the Prohibition having alledged a Custome and it being found against him a Cousultation was awarded A Composition was betwixt an Abbot and a Parson that in recompence of the Tithes of all the Woods within the Mannor whereof the Abbot Owner That he should have to him and his Successor 20 Loads of Wood every year in 20 Acres of the said Mannor to burn and spend in his House The Parsonage was Appropriate to the Abbey and after the Abbey was dissolved the King granted the Parsonage to one and the 20 Acres to another It was Resolved That by the Unity the Estovers were not extinct for it they be Tithes they are not extinct by this Unity of possession for that Tithes run with the Lands and Tithes de jure Divino Canonica Institutione do appertain to the Clergy Wool of Sheep is Tithable proportionably to the time they are in the Parish as thus viz. The Parson shall have Eight pound of Wool in Eighty of Forty Sheep in the Parish a whole year Four pound of Wool in Forty if they were there but half the year Two pound of Wool in Twenty if they were there but Three months and but the Tithe or Tenth of the Twelfth part of the Wool if the lay and fed but One month in the Parish The Wool of Sheep shorn and dying before Easter next following such shearing is not Tithable unless the Parson or Vicar can alledge a special Prescription for it Therefore Q. where by Prescription such Tithe is claimed It is said also That a Custome to pay a Halfpeny for the Wool de ovibus venditis after shearing and before Michaelmass is good and that the Sheep discharged shall be Weathers as well as Ewes Also Wool-locks and Flocks of Wool after the Wool made are likewise Tithable if there be more than ordinary left otherwise not And if a Prescription be alledged to be discharged of Locks of Wool it
sue the Parishioner in the Ecclesiastical Court for Tithes in kind no Prohibition to be granted on that discharge by Deed for they may well try that having cognizance of the Principal If a Parson Lease all the Tithes of his Benefice to the Parishioner and after sue him in the Ecclesiastical Court for his Tithes in his hands no Prohibition to be granted for the Lease is a good discharge there Likewise if the Parishioner grant Land to the Parson for and in lieu of his own Tithes and after the Parson sue him in the Ecclesiastical Court for the Tithes no Prohibition to be granted for that matter will be a good discharge there If a Parson sue for Tithes in the Ecclesiastical Court and the Defendant there plead an Arbitrement in Bar they shall try that there and no Prohibition to be granted upon that c. for by intendment it is a good discharge there Likewise if a Parson sue for Tithes in the Ecclesiastical Court and the Defendant there plead a Lease of them by Deed by the Parson to him rendring Rent to which the Plaintiff says the Rent was reserved upon condition of Non-payment to be void and averrs that it was not paid at a certain day and the other pleads payment at the day This shall be tryed there and no Prohibition granted If a Parson Lease by Deed the Tithes of the Parish and after sues for the Tithes in the Ecclesiastical Court and there the Lease is pleaded where the Question between them is Whether it be the Tithes of the whole Parish or only of some particular things yet no Prohibition lies for they have cognizance of the Original but if they judge contrary to the Common Law a Prohibition lies after Sentence If a man sue for a Legacy in the Ecclesiastical Court and the Defendant plead a Release in Bar and the Plaintiff deny it that shall be tryed there for that it arises from the Original cause whereof they have the Jurisdiction If an Administrator sue for a Legacy due to the Deceased in the Ecclesiastical Court and the Defendant plead the Release of the Deceased in Bar and the Plaintiff avoid it for that the Deceased was an Ideot That Ideocy shall be tryed there and no Prohibition granted for that they have Jurisdiction of the Original matter If a Parson sue in the Ecclesiastical Court and the Defendant there plead that the Plaintiff was presented upon a Simonaical Contract against the Stat. of 31 Eliz. That shall be tryed there for that they have Jurisdiction of the Original thing But the Ecclesiastical Court can take no cognizance of a Custome whereby the Inheritance is perpetually charged although the thing Customable be cognizable by them And therefore if the Church-wardens of the Parish of S. Libel in the Ecclesiastical Court against J. S. Farmer of the Farm of D. for a Contribution to the Reparation of the Church and alledge that part of the Farm lies in the Parish of S. and part thereof in the Parish of W. and alledge a Custome that the Farmers of the said Farm have used time out of mind to contribute to the Reparation of the Church of S. throughout the whole Farm if the Defendant saith that part of the Land of the said Farm lieth within the Parish of W. and that it had used time out of mind c. for that part to contribute to the Church of W. and not to S. and so deny the said Prescription This shall not be Tryed in the Ecclesiastical Court but at the Common Law and for that a Prohibition lies for they shall not try a Custome in the Ecclesiastical Court by which the Inheritance is to be perpetually charged If A. the Parson of D. sue for Tithes in the Ecclesiastical Court against B. who pleads a Lease for years made to him by the Parson To which A. the Parson Replies That he was Non-resident and absent 80 days and more in such a year c. from his Benefice by which the Lease became void No Prohibition lies upon that plea for that it is grounded on the Statute of 13 Eliz. and although it was Objected That the Judges Ecclesiastical shall not have the Exposition of a Statute yet for that they have Jurisdiction of the Original cause they shall have power to try that which incidently doth arise from thence and the Prohibition was denied 18. A Prohibition was prayed upon the Statute of 23 H. 8. for suing for a Legacy of ten pounds in the Prorogative Court whereas the party did dwell in another Diocess but because the Will was proved in that Court and there Sentence was given for the Legacy and an Appeal upon the Sentence to the Delegates where it was affirmed and endeavour was to stay the Suit by the Statute the party having so long allowed of the Jurisdiction of the Court Adjudged the party came too late now to have a Prohibition 19. In Norwood's Case it was held That where a man is sued in the Ecclesiastical Court for slanderous words a General Pardon doth not aid the party for staying the Suit there which is for or ad instantiam partis But contrary where the party is sued there ex officio Judicis 20. In order to a Prohibition it was surmised That the Defendant was a Clerk and assaulted his Servant and he coming to keep the Peace and to aid his Servant laid his hands peacably upon the Defendant for which he sued him in the Ecclesiastical Court where he pleaded this matter and they would not allow of his plea It was said by the Justices That this Case was out of the Statute of Articuli Cleri Circumspecte agatis for here the party had Quaere by what Law for this is not in the Case of Se Defendendo good cause to beat the Clerk and a Prohibition was granted 21. By the Justices if Issue be joyned whether a Church be void by Cession Deprivation or Resignation it shall be Tried by the Countrey because it is a thing mixt for the Avoidance is Temporal and the Deprivation is Spiritual But habilitie Bastardy ne unque accouple en Loyal Matrimony shall be tried by the Certificate of the Bishop but Bastardy pleaded in a Stranger to the Writ shall be tried by the Country 22. A Sentence was given definitive in the Ecclesiastical Court in a Suit there for Tithes pro triplici valore a Prohibition was prayed a special Prohibition was awarded That they should not proceed to the Execution of the Sentence as to the treble value because that Court is not to give the treble value but the double value only 23. In a Case between a Parson and Church-wardens against one Reynolds it was suggested That all those who had the House wherein the said Reynolds did dwell had used to find meat and drink for the Parson and them going in Procession in Rogation-week at his house and
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 Dâ—fendants 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
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. reâ—iâ— Sub divini Judicii attestatione h. e. damnationis aeternae in extremo Calâ—ulo 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
give it to the Poor but sold the Flesh to Butchers and the Ale to Ale-wives And that he commanded his Curate to Marry a Couple in a private House without any License And that he suffered divers to Preach which peradventure had not any License and which were suspected persons and of evil Life It was said by Henden That they cannot by the Statute of 1 Eliz. cap. 1. meddle with such matters of such a nature but only examine Heresies and not things of that nature and that the High Commissioners at Lambeth certified to them that they could not proceed in such things and advised them to dismiss it but they would not desist And the Judges Richardson being absent granted a Prohibition if cause were not shewn to the contrary 10. A Parson makes a Lease for 21 years the Patron and Ordinary confirm his Estate for 7 years the Parson dies The Question is Whether that Confirmation made the Lease good for 21 years or but 7 years And it seemed to Hutton That the Lease was Confirmed but for 7 years But Richardson was of the contrary Opinion and took a difference where they Confirm the Estate and where they Confirm the Land for 7 years That Confirmation confirms all his Estate But where they confirm the Lease for 7 years That Confirmation shall not enure but according to the Confirmation And that difference was agreed by Crook and all the Serjeants at the Barr. And afterwards Hutton said That that was a good Cause to be considered and to be moved again 11. In a Replevin And the Title was by Lease made by a Parson And the Avowry was That A. was seized of the Rectory of H. and made the Lease without shewing that he was Parson And by the Court That that should have been a good Exception if it had not been said in the Avowry moreover That A. was seized in juâ—e Ecclesiae which supplies all 12. During the time of the Parson the Patron hath nothing to do in the Church And therefore if the Patron grant a Rent by Fine out of the Church the Church being then full and afterwards the Incumbent dies that charge shall not bind the Successor for that the Parson and the Ordinary were no parties to it 13. If a Parson would Resign the word Resignare is not it seems the only proper word in the Law for Resignation but Renunciare Cedere Demittere are the usual words or terms of Resignation Yet if a Prebend doth give grant yield and confirm his Prebendary and the Possessions thereunto belonging unto the Ordinary To have and to hold to him and his Successors in Fee subjecting and submitting to him Omnia jura by reason thereof qualitercunque acquisita these words it seems are sufficient and amount to a Resignation albeit the proper words are not therein Which Resignation ought to be made to the Immediate Ordinary and not to the Mediate for which reason a Prebend may not Resign to the King for that although he is Supream Ordinary yet he is not the Immediate Ordinary and he is not bound to give Notice to the Patron as the Ordinary ought nor of himself can Collate but is to present to the Ordinary 14. In Trespass The Case was The Defendant being Incumbent of the Church of B. M. and G. having the Donation thereof made an Instrument whereby Concessit Resignavit to M. omnibus ad quos in hac parte pertinet ad acceptandam Ecclesiam suam de B and thereupon the two parties gave it to the Plaintiff who being disturbed by the Defendant brought Trespass The Question was whether a Resignation of a Donative could be to the Donor or how it might be departed with Resolved 1 That this being a Donative begun only by the Foundation and Erection of the Donor he hath the sole Visitation and the Ordinary hath nothing to do therewith and as the Parson comes in by the Donor so he may restore it to him and although the Presentee when he is in hath the Freehold yet he may revest it by his Resignation without any other Ceremony and the Ordinary hath nothing to do with it For Admission and Institution are not necessary in case of a Donative 2 Resolved That the Resignation to one of the parties is good for it doth enure to both as a Surrender shall do 3 Resolved That although the Resignation was de Ecclesia yet it shall extend to all the Possessions 15. At a Synod in 44 Ed. 3. a Canon was made That the Parson of every Church in England shall appoint the Parish-Clerk And at another Synod held in An. 1603. a Canon was made to the same effect and yet it doth not take away the Custome where the Parishioners or Churchwardens have used to appoint the Clerk because that is Temporal which cannot be altered by a Canon If the Clerk of a Parish in London hath used time out of mind to be chosen by the Vestry and afterwards Admitted and Sworn before the Archdeacon and he refuse to Swear such Clerk so Elect but Admits another chosen by the Parson In this Case a Writ may be awarded commanding him to Swear the Clerk chosen by the Vestry 22 Jac. Walpool's Case The like Writ was granted for the Clerk of the Parish of St. Fosters London Mich. 16 Car. B. R. between Orme and Pemberton The Parishioners of the Parish of Alphage in Canterbury prescribed to have the Nomination and Election of their Parish-Clerk and the Parson of a Parish by force of a Canon upon voidance of the place of the Parish-Clerk elected one to the Office The Parishioners by force of their Custome elected C. the Parson supposing this Election to be Irregular for that it was against the Canon Sued C. before Dr. Newman Chancellor of Canterbury and the said C. was by Sentence deprived of the Clerkship of the Parish and another Clerk of the Parish Admitted C. moved for a Prohibition and had it granted by all the Court for it was held That a Parish-Clerk is a meer Lay-man and ought to be deprived by them that put him in and no others and the Canon which willeth that the Parson shall have Election of the Parish-Clerk is meerly void to take away the Custome that any person had to Elect him Vid. Stat. 25 H. 8. That a Canon against Common Law confounding the Royal Prerogative of the King or Law of God is void and Custome of the Realm cannot be taken away but by Act of Parliament vid. 21 Ed. 4. 44. And it was Resolved That if the Parish-Clerk misdemean himself in his Office or in the Church he may be Sentenced for that in the Ecclesiastical Court to Excommunication but not to Deprivation And afterwards a Prohibition was granted by all the Court and held also That a Prohibition lieth as well after Sentence in this case as before And in Jermin's Case Whereas the Churchwardens and Parishioners of K.
afterwards the Parishioners sow certain Lands with Saffron or the like the Parson shall not have the Tithe of the Saffron but the Vicar By Coke so Adjudged It hath alsâ— been Resolved It a Vicar be Endowed of the Small Tithes by Prescription and afterwards the Land which had been Arable time out of mind is converted from Arable and there grow small Tithes the Vicar shall have them for his Endowment doth not go to the Land but Minutis Decimis in every place within the Parish And if a Vicar be endowed of the third part of all the Tithes of a Mannor he shall have Tithes as well of the Freehold as Copyhold for all makes the Mannor 9. The Parson and not the Patron of the Parsonage of Common right is Patron of the Vicarage for that it is derived out of the Parsonage Dubitatur 17 E. 3. 51. b. Contra 5 E. 2. Quare impedii 165. per Pass And if a Parson Appropriate create a Vicarage he shall be Patron thereof 17 E. 3. 51. he is both Parson and Patron So likewise if there be a Vicar and a Parson Appropriate the Ordinary and the Parson Appropriate may in time of vacation of the Vicarage re-unite the Vicarage to the Parsonage 10. If there be a Parsonage Appropriate in an Ecclesiastical person which never came to the King by the Statute of Monasteries and a Vicarage Endowed be there also and the Parson make a Lease of the Parsonage for Lives according to the Statute of 32 H. 8. The Vicar may in that case sue in the Ecclesiastical Court against the Parson and his Lessee who comes in by the Statute for Addition of Maintenance and the Ordinary may well compel them to increase his Maintenance for over all Appropriations such power of increasing the Vicar's Maintenance was reserved to the Ordinary and the Lessee comes in subject to that charge 11. If the Vicarage be diminished he shall have more of the Parsonage if what remains be not sufficient And if the Parsonage be impoverished and so decayed that the Parsonage by it self nor the Vicarage have sufficient to sustain them in that case the Vicarage shall determine and be restored to the Parsonage And to this the Doctors also do accord It hath been also held If a Parson Appropriate who is Patron of the Vicarage of the same Church by Agreement between him and the Ordinary present the Vicar to that Parsonage it is an union of the Parsonage and Vicarage but if a Lessee of a Parsonage present the Vicar to the Parsonage that shall not bind the Lessor And if there be a Vicarage and Parsonage and both void and one present his Clerk as Parson and he is so Inducted that shall unite the Parsonage and Vicarage again And in case that there be a Vicar Endowed who is Presentative and also a Parson Presentative it seems that the Parson hath not the Cure of Souls but the Vicar 12. Benefice Beneficium according to a general acceptation may comprehend all Ecclesiastical Livings be they Dignities or other as in the Statute of 13 R. 2. where they are divided into Elective and Donative But according to a more strict and proper acceptation Duarenus seems to give it an apt definition where he says it is Res Ecclesiastica quae Sacerdoti vel Clerico ob Sacrum Ministerium utenda in perpetuum concedatur Res because it is not the Ministry it self or the Office but rather the profit thence arising that is the Benefice Ecclesiastica because such profit is dedicated to God and his Church Sacerdoti c. because where a thing Ecclesiastical is granted to Lay-men it is not properly said to be a Benefice in this sense Ob Sacrum Ministerium because as Dedicated to God they are for the use of such as wait on his Altar Vtenda because they have rather the Usufâ—uit thereof than any Fee or Inheritance therein In perpetuum because they are annexed to the Church for ever Benefices with Cure of Souls seem most properly to be the Parsonages and Vicarages of Parochial Churches Sir H. Hobart Chief Justice in Colt and Glover's Case against the Bishop of Coventry and Lichfield says speaking of the Statute of 21 H. 8. cap. 25. That Bishopricks are not within the Law under the word Benefices So that if a Parson take a Bishoprick it avoids not the Benefice by force of that Law of Pluralities but by the Ancient Common Law as it is holden 11 H. 4. 60. 13. This word Beneficium Ecclesiasticum extendeth not only to Churches Parochial and the Benefices thereof but also to Dignities and other Ecclesiastical promotions as to Deanaries Archdeaconries Prebends c. Lindw de vit hon Cle. c. Exterior Sir Edw. Coke affirms that it appears in the Books of their Law That Deanaries Archdeaconries Prebends c. are Benefices with Cure of Souls but they are not comprehended under the Name of Benefices with Cure of Souls within the Statute of 21 H. 8. by reason of a special Proviso which they had been if no such Proviso had been added viz. Deans Archdeacons Chancellors Treasurers Chaunters Prebends or a Parson where there is a Vicar endowed 14. The Canonists do hold That an Ecclesiastical Benefice consists of the Sacred Function and of the Provinces thereunto belonging It is a distinct portion of Ecclesiastical Rights joyned to the Spiritual Function and until it be set apart separate and distinguished from Temporal Interests it is not properly an Ecclesiastical Benefice it is termed a portion in that it includes Fruits for a Benefice without Fruits cannot properly be so called 15. By the Jus Commune no man can at once and at the same time possess two Benefices with Cure of Souls as incompatible Tot. decis Rotae 445. tit de Praeb in novis Non datur Beneficium nisi propter Officium he that performs not the one ought to be deprived of the other C. fin de Rescript in 6. Can. Eos Cano. si quis Sacerdotum 81. distinct All pâ—cuniary Contracts all mercenary Trading and Merchandizing for Benefices is to be abhorred Ecclesiastical Benefices are of such a Spiritual Constitution that they are not capable of being bought or sold they fall not within the walk of human Commerce but ought to be conferr'd gratis And for Non-residence the Parson ought by the very Letter of the Law to be deprived of his Benefice and the Fruits thereof c. Vni de Cleric non residen in 6. Panormitan observes Six signs whereby an Ecclesiastical Benefice may be known As 1 That according to the Jus Commune it ought to be bestowed by one who hath a right and power in him so to do meaning the true Patron 2 That he who doth give or bestow it do reserve nothing thereof or therein for himself directly or indirectly 3 That it be given purely as a provision and maintenance for the Clerk 4 That it
Church so erected is by the Consecration thereof actually delivered up and made over as it were to God himself it thenceforth ceases to be of any mans property or of any Human Dominion for Quod Divini Juris est id nullius est in bonis § nullius Inst de Rer. Divis And by what is Recorded in the Life of Bishop Vlrick it should seem as if the Right of Presentation originally were in the Diocesan for the Author there saith That if any Erected a Church the Bishop consented Si legitimam Ecclesiae dotem in manum ejus Celsitudinis dare non differret c. And after the Endowment and Consecration thereof the care of the Altar was committed by him to the Priest and the Advowson firmly conveyed to the lawful Heir by the putting on a Robe Author vitae Udalrici c. 7. p. 52. Edit August Vindel. 1595. But the Bishops understanding this as a matter more of Care than of Power as appears by these moderate expressions of Nominare Praesentare or Commendare they were willing the Lay-Patron for his better encouragement to such Pious works should share with them in this priviledge which Panormitan calls Jus â—onorificum yet so as that this transference of the Bishops unto Lay-Patrons should still remain under such a Limitation as that it should be necessary for the Patron to have recourse to the Bishop for the qualifying his Clerk for the Rectory by Ordination And the Bishop's prudent compliance with Lay-Patrons in this matter was not in those days without good reason if we consider what a paucity of publick Churches there then were insomuch that for want or instead thereof they frequently then said Prayers under a Cross in the open Field as is reported of our own Ancestors in the Peregrination of Wilibald Sic mos est Saxonicae gentis c. non Ecclesiam sed Sanctae Crucis Signum c. diurnae Orationis sedulitatem solent habere Hodaeperic Hierosolym Wilibald Extat ad Canisium Tom. 4. Antiq. Lect. par 2. pag. 486. Edit Ingolst 1603. Yea and where perhaps some Churches were many of them were no better than those mentioned by Asser Bishop of Shirburne in King Alured's daies which were of so mean a structure that frequently the wind entering per parietum rimulas did blow out the Candles set before the Reliques which gave occasion to that ingenious Prince to teach us by his dexterity the mystery of making Lanthorns Ex Lignis Bovinis Cornibus 4. In the Infancy of the Christian Faith in this Island under the Saxons several particular Lords of Grand Seignories Regis ad Exemplum erected particular Churches and having Endowed them with Lands reserved to themselves and their Successors for ever a right and power to confer them on such as were meetly qualified for the same And this they did in imitation of those Kings who then Reigning here erected Cathedrals Abbies Priories Churches c. 5. An Advowson being a right of Presentation as aforesaid reserved by a Founder to himself his Heirs and Successors is applicable to other Ecclesiastical Foundations as well as those of Churches as appears by the several Quare Impedits brought on several occasions so that albeit it hath been said that by the Grant of a Church the Advowson passed and when he gave the one he gave the other yet is the word Advowson not improperly applicable to any thing wherein a Quare Impedit will lie And he in whose Right such Presentation is rested is by the Provincial Constitutions of this Realm termed Advocatus Ecclesiae because as the Constitution hath it tueri defenders Ecclesiam ejus jura tenetur ad instar Advocati qui in Judicio Causam alicujus defendit Lindw Provin Const de Foro Comp. cap. Circumspecte ver Advocatus Which every Patron is obliged to do whence Patronus and Advocatus Ecclesiae are in effect Synonymous yet in Lindwood we have the Question put whether there be any difference inter Patronum Advocatum Ecclesiae Lindw Const Prov. de homicidio cap. Sacri Gloss ibid. Where though the prevailing opinion be for the Negative yet you will also there find very Orthodox Authority for the contrary and that Advocatus intelligitur non pro Patrono sed pro Defensore Ecclesiae Gloss ibid. as appears there by Lindwood that Famous Canonist totius Orbis Britannici who being Doctor of Laws Chaplain and Official to the Archbishop of Canterbury in the time of H. 5. was by reason of his great Experience and Abilities in National Laws as well as Provincial Constitutions sent as his Embassador to the Crowns of Spain and Portugal and at his Return about An. 1422. compiled what now is extant to his Immortal Memory and Dedicating the same to the said Archbishop it was after about An. 3505 being first revised by Wolfgangus Hopylius printed at Paris at the cost and charges of William Bretton Merchant of London Mention hereof is here made in regard of the plentiful use here made of this Eminent Author in this Ecclesiastical Abridgment and that rather in the midst of this Subject touching Advowsons as presuming that for the reason aforesaid a Quare Impedit will not lie in the case of this digression 6. The Right of Patronage is it seems by the Common Law a real Right fixed or vested in the Patron or Founder in the Church wherein he hath as absolute a property and Ownership as any man hath to his Lands and Tenements or any Freehold whatever And that the Advowson or Patrons Right to Present is a Temporal and not a Spiritual Inheritance For at the first Creation of a Mannor if Lands were given to erect a Church thereon the Advowson thereof became appendant to that Mannor and reputed as parcel thereof which being Temporal the other became so also as an Accessary to the Principal for which reason such an Advowson passeth by the Grant of the Mannor cum pertinentiis Yea it hath been adjudged That by the Grant of a Mannor without making any mention of the Advowson the Advowson also passed because it was parcel of and appendant to the Mannor And it hath been ever held That by the Common Law an Advowson is a Temporal Inheritance for that it lieth in Tenure and may be holden either of the King or of a Common person and hath been held of the King in Capite or in Knights Service And were a Quare Impedit hath been brought the Plaintiff hath counted that the Defendant held the Advowson of him by Homage and Fealty And it hath been agreed that an Advowson doth lie in Tenure and that the Lord may distrain in the Glebe-Lands for Rents and Services the Patron 's Cattel if any be there found upon the Land but not the Cattel of a Stranger 7. Other Reasons it seems there are at the Common Law which prove That an Advowson is a Temporal Inheritance for that a Writ of Right of
Advowson lieth for him who hath an Estate in an Advowson in Fee-simmple or Right of an Estate therein to him and his Heirs in Fee-simple Which Writ being Quod clamat tenere de te doth suppose a Tenure and lieth not only for the whole Advowson but also for some part thereof As also because a Praecipe quodreddat lieth for it as hath been Adjudged As also that a Common Recovery may be suffered of an Advowson as hath been likewise Adjudged As also because an Advowson as other Temporal Inheritances may be forfeited by Attainder of Treason or Felony or lost by Usurpation six months Plenarty Recusancy Outlawry Negligence or Lacks of Presentment Translation or Cesser and given away in Mortmain As also for that the Wife shall be endowed thereof and have the third Presentment and the Husband shall be Tenant thereof by the Courtesie also it is successively devisable among Coparceners that the priority of Presentment shall be in the eldest Sister likewise it may pass by way of Exchange for other Temporal Inheritance and albeit during the vacancy of the Church it be not in it self valuable yet otherwise it is as to an Incumbent and by Grat of all Lands and Tenements an Advowson doth pass if not by Livery yet by Deed is transferable as other Temporal Inheritances and pass with the Mannors whereunto they are appendant by Prescription unless there were before a severance by Grant Deed Partition or other Legal Act which Prescription is so requisite to Appendancy as without which it cannot well be at all 8. An Advowson in Gross is understood as under a more beneficial qualification than that which is Appendant and that which is Appendant may by severance become an Advowson in Gross And therefore in the Case where a man being seized of a Mannor whereto an Advowson was Appendant and by Deed granting one Acre belonging to that Mannor unà cum Advocatione Ecclesiae did further by the same Deed give and grant the said Advowson the Question was whether the Advowson did pass as Appendant to the Acre or as an Advowson in Gross And the better Opinion was That by that Grant the Advowson was severed from the Mannor and was become in Gross for that the Deed shall be taken most beneficial for the Grantee to have the Advowson in Gross and not as Appendant to the Acre But in that case it was Agreed If the whole Mannor had been granted then the Advowson had passed as Appendant and not in Gross Yet an Advowson Appendant to a Mannor descending to divers Coparceners making Partition of such Mannor without mentioning the Advowson remains Appendant notwithstanding such Division and Severance from the Mannor Yea although the Mannor of D. to which an Advowson is Appendant be granted and by the same Deed the Advowson also of the Church of D. So as it is named no otherwise than in Gross yet it shall thereby pass only as Appendant 9. If the King makes a Lease for life of a Mannor to which an Advowson is Appendant without making any mention of the Advowson the Advowson remains in the King as in Gross as was granted by the Justices And it was said by them That in such case by Grant of the Reversion Habendum the Reversion with the Advowson the Advowson passeth not to the Patentee for that the Advowson was severed and became in Gross as to the Fee And in another Case where it was found before Commissioners That A. was seized of a Mannor to which an Advowson was appendant and that he was a Recusant convict whereupon two parts of the Mannor were seized into the Kings hands who leased the Mannor with Appurtenances and all profits and commodities and Hereditaments to the same belonging unto J. S. for 21 years if A c. and afterwards the Church became void In this Case it was held That albeit there was no mention in the seizure of the Advowson yet the Presentment belonged to the King and that the King alone should Present Secondly That there were no words in the Kings Grant to J. S. to carry away the Advowson from the King and that notwithstanding that Grant the Advowson remained still Appendant to the Mannor 10. By words implying meerly matter of profit or things gainful as Cum omnibus commoditatibus Emolumentis proficuis advantagiis and the like an Advowson will not pass because it is contrary to the nature of an Advowson regularly and therefore the Advowson of a Vicarage appendant to a Prebend passed not by a Lease with such words of several parts of the Prebend to which such Advowson was appendant Not will an Advowson appurtenant to a Mannor pass by the Grant of an Acre of Land parcel of that Mannor cum pertinentiis otherwise if the Grant be of the Mannor it self cum pertinentiis Yet in a Case where the King being seized of a Mannor to which an Advowson was appendant granted the Mannor to J. S. for life and then granted the Mannor to J. D. after the death of J. S. Habendum cum Advocatione and then by Parliament the King reciting both the Grants confirmed them by Parliament yet it was Adjudged in that Case That the Advowson did not pass Nor will an Advowson if once Appendant pass without special words of Grant thereof which may not be strained in the construction thereof to an unusual or unreasonable sense for which reason an Appropriation will not pass by the name of an Advowson but as aforesaid an Advowson of a Vicarage may be Appendant to a Prebend All which hath been Resolved in the fore-cited Case And if Tenant in Tail be of a Mannor to which an Advowson is appendant the Church being full and he grants proximam Advocatione and then dies by his death the Grant becomes meerly void as was also Resolved in Walter and Bould's Case In a Quare Impedit The Case was between the Chancellor and Scholars of Oxford and the Bishop of Norwich and others The Plaintiff counted upon the Statute of 3 Jac. That J. S. being Owner of an Advowson 2 Jac. was a Recufant convict and that afterwards the Church became void and so they by the Statute ought to Present One of the Defendants pleaded That the Advowson was appendant to a Mannor and that two parts of the Mannor were seized into the Kings hands by Process out of the Exchequer and that the King by his Letters Patents granted the Two parts to the Defendant with the Appurtenances and granted also all Hereditaments but Advowsons were not mentioned in the Letters Patents and so said the Presentation did belong to the Defendant It was Resolved That the Advowson did not pass by the word Appurtenances without mention of Advowson or words Adeo plena integra in tam amplo modo forma as the Recusant had the Mannor 11. In case a Patron be Outlawed and the Church becoming
may have a Writ of Right of Advowson but this Writ lieth not for him unless he claim to have the Advowson to him and his Heirs in Fee-simple which Advowson is valuable though the Presentment be not 18. The Queen seized of an Advowson being void the Ancestor of P. Presented and so gained it by Usurpation and then the Church being void he Presented again his Clerk dies and then the Queen grants the Advowson to Y. the Plaintiff who brings a Quare Impedit in the Queens Name supposing that this Usurpation did not put the Queen out of Possession It was argued That the Grant could not pass without special words because it is in the nature of a Chose in Action And Dyer Mead and Windham held That this Usurpation did gain possession out of the Queen and that she should be put to her Writ of Right of Advowson but the Opinion of Anderson Cheif Justice was clearly That the Queen was not out of Possession for he said That it was a Rule in our Books that of a thing which is of Inheritance the act of a Common person will not put the Queen out of possession But if she had only a Chattel as the next Advowson then perhaps it is otherwise But Mead and Windham very earnestly held the contrary relying on the Book of 18 E. 3. where Shard said That if the King had an Advowson in his own Right and a Stranger who had no Right happen to Present it puts the King out of Possession And the King shall be put to his Writ of Right as others shall The Defendant alledged Two Presentations in his Ancestor after the Title of the King and demanded Judgment if the King should have a Writ of Possession and the Plea was admitted to be good But after Pasch 25 Eliz. Judgment was given for the Queen for that she might very well maintain a Quare Impedit and the two Presentments did not put her out of possession 19. In a Quare Impedit by G. against the Bishop of L. and D. Incumbent The Case was That a Mannor with the Advowson Appendant was in the hands of the King and the Church became void and the King grants the Mannor with the Advowson If the Grantee shall have the Presentation or the King was the question All the Justices held clearly That the Avoidance would not pass because it was a Chattel vested And Periam said that in case of a Common person without question an Advowson appendant would not pass by such Grant for if the Father die it shall go to his Executor but if it be an Advowson in Gross in case of a Common person there is some doubt But in the Principal Case all the Judges held ut supra and said That so it was in 9 E. 3. 26. Quare Impedit 31. and in Dyer in the Case of the Church of Westminster But F. N. B. is contrary 33. N. 20. Of Advowsons there are three Original Writs whereof one is a Writ of Right the other two of Possession viz. Darrein Presentment and Quare Impedit And where an Advowson descendeth unto Parceners though one Present twice and usurpeth upon his Co-heir yet he that was negligent shall not be clearly barr'd but another time shall have his turn to Present when it falleth And by the Statute of 3 Jac. 5. every Recusant Convict is utterly disabled to Present to any Ecclesiastical Living or to Collate or Nominate to any Donative whatsoever the Advowson of every such Recusant being left to the disposition of the Universities of Oxford and Cambridge Also by the Statute of 13 E. 1. 5. it is directed what Action shall be maintained by him in the Reversion who is disturbed to Present after the Expiration of a particular Estate where there is also provided a Remedy for him in the Reversion or Remainder or others that have right where there is an Usurpation of an Advowson during any particular Estate And that Judgments given in the Kings Courts touching Advowsons shall not be avoided by Surmizes but by lawful means Likewise it is Statute-Law to hold That Advowsons shall not pass from the King but by Special words for when the King doth give or grant Land or a Mannor with the Appurtenances unless he make express mention in his Deed of Advowsons of Churches when they fall belonging to such Mannor or Land they are reserved to him notwithstanding the word Appurtenances albeit among Common persons it hath been otherwise observed nor is it lawful to purchase an Advowson during the dependancy of a Suit at Law concerning the same 21. If a Feme Covert be seized of an Advowson and the Church becomes void and the Wife dieth the Husband shall Present Where Parson and Vicar be Endowed in one Church and the Vicarage becomes void the question is To whom the Advowson of the Vicarge doth belong and who in that case shall be said to be the Patron of the Vicarage Whether the Patron of the Parsonage or the Parson It seems the Books at Common Law the Judges and the Court were divided in Opinion touching this point some of the Judges were of Opinion That the Advowson of the Vicarage appertains to the Parson Others that it belongs to the Patron Such as inclined that it is in the Patron gave for reason That the Ordinary cannot make a Vicar without the assent of the Patron 5 E. 2. Quare Impedit 165. puts the Case That although the Vicarage be Endowed with the assent of the Patron and Ordinary yet the Advowson of the Vicarage doth remain in the Parson because the same is parcel of the Advowson of the Parsonage And 16. E. 3. Grants 56. it was a question Whether by the Grant of the Advowson of the Church the Advowson of the Vicarage did pass and there it was said by Stone That it doth pass as Incident to the Parsonage And in regard the Vicar is as the Parsons Substitute and his Endowment originally only as a Maintenance for him in officiating the Cure for the case of the Parson whose Concern it is to see that he be a fit and able person sufficient for the Cure it should thence seem rational that the Parson should be his Patron to Present such an one to the Vicarage as shall be sufficient for the Cure for which reasons the Patronage of the Vicarage should seem rather to belong unto the Parson than to the First Patron of the Parsonage Appropriate 22. An Advowson cannot it seems at the Common Law be called a Demesne for that it is not such a thing as a man hath a Manual occupation or possession of as he hath of Lands Tenements and Rents whereof he may say in his Pleading That he was seized thereof in his Demesn as of Fee which he cannot say that hath only the Advowson of a Church because it lies not as the other in Manual occupation And therefore in the case
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
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
tithable no Tithes of Pasture of Milch-kine grown dry unless kept for Sale 45. Composition for Tithes for life not good without Deed. 46. Estovers burnt in the house not Tithable The Hearth-peny good by Prescription 47. A Composition for Tithes de anno in annum 48. The Modus decimandi is Suable in the Ecclesiastical Court as well as the Tithe it self 49. Proâ—ibition in case of Libel to prove in perpet rei memo 50. Custome of Tithe-Grass Cocks as to both Mathes 51. In a Prohibition upon matter at Common Law and not within the Stat. of 2 E. 6. 13. the Suggestion need not be proved in Six months 52. Tithe-Hay of Headlands Custome and Prescription 53. Tithe-Hay of Heathlands also Tithe of Pidgeons 54. Minute Tithes to the Vicar 55. Tithes to Parson and Vicar may amount but to one Action 56. The Curate may not Prescribe in Tithes against the Parson 57. Curates may sue for Pensions in the Ecclesiastical Court 58. By the Civil Law the Parson to have Notice when Tithes set out 59. Action on the Case against a Compounder for Tithes Suing in the Ecclesiastical Court 60. Modus decimandi by one may hold as to others for a Prohibition 61. Composition for one year good without Deed not if for years 62. Tithe-Hasel Holly Willow Whitethorn Whether the Parishioner shall preserve the Parsons Tithe for him 63. Testis Singularis not sufficient to prove payment of Tithes in the Ecclesiastical Court 64. Composition for Tithes and a Prohibition thereon 65. Tithes taken away by a Stranger after they are set out the Parsons remedy lies at the Common Law 66. In what Case no Costs upon failure of Proof of the Suggestion within the Six months 67. Modus Decimandi may be Sued for in the Ecclesiastical Court where if denied they are to surcease 68. Custome in Cornwall touching Tithes of Sea-fâ—sh 69. In what Case an Agreement for Tithes for years may be good without Deed. 70. In what Court Tithes of Rents in London may be Sued 71. A Collector of Tithes cannot License a Parishioner to carry away his Corn. 72. Whether Debt lies for Treble dammages upon Fraudulent setting forth of Tithes 73. Tithes whether they belong to the Parson or the Vicar cognizable in the Ecclesâ—astical Court where the Right of Tithes is confessed 74. The Ecclesiastical Court not Judges of the Bounds of a Parish 75. Modus Decimandi in reference to a Park 76. A Frâ—udulent setting out of Tithes is no setting them out at all 77. The Vicar shall have Tithe of Rape-Seed being within a Prescription though a new thing in England 78. What the word Garba signifies 79. Whether Wood in its own nature be great Tithes and in what case it shall pass by the words de minutis Decimis 80. If two Titles of Tithes unite in one person there need but one Action for them 81. A Parson may not sett a Lease for years of Tithes per parol only 82. If a Parson be disturbed in carrying away his Tithes seâ— out his Remedy lies properly in the Ecclesiastical Court 1. TITHES Dismes Decimae probably an abbreviation from the Saxon Teoâ—unâ— or Tithing properly Decuria in that Language Lamb. Expl. of Sax. words verb. Deâ—uria That the Apostles and Elders at Jerusalem were competently supplied by the Contributions of the Jewish Proselytes is very conjecturable in that they sold their possessions and brought the price thereof and laid it down at the Apostles feet and such as then planted the Gospel and labourâ—â— in the Word and Doctrine had their maintenance by the Contributions of their Converts Vid. Concil Grang. Can. 7 8. And St. Cyprian writing to his Church of Carthage Epist 33 34. to receive Aurelius and Cellerinus Confessors saith in Epist 34. Presbyterii honorem designasse nos ilâ—is jam sciatis ut sportulis iisdem cum Presbyteris honorentur Divisiones Mensurnas aequatis quantitatibus partiantur Know you that we have already designed to them the Dignity of Presbytership that they might be honoured with such allowances as Presbyters have and receive equal shares in the Monthly Dividends So that Sportulae were the allowances which in this Infancy of the Gospel the Presbyters had out of the Contributions of the Converts And the Fratres Sportulantes mentioned by him in Epist 66. were the Clergy which received such allowance These Converts after the Conversion of Constantine the Emperour many of them being Governours and Nobles settled great and large Demesn-Lands upon those who Converted them and that according to Mr. Seldens conjecture the first Oratories or places of Publick Worship were built in the Lands bestowed on them which first Oratories were called Cathedrals Sees or Seats from their constant Residence thereon That the Christian Church even in times of Persecution laid claim to Tithes as due Jure Divino is partly confessed by Mr. Selden himself citing some passages in the Ancient Fathers to that purpose But when the Empire became Christian then the Christian Clergy did more earnestly press the Donation of Tithes and in process of time they prevailed not only by Preaching and Canons but by the Edicts of Emperours and Kings to have Tithes given to the Church And it appears that the Roman Empire where-ever it did reduce any Conquered Countrey in formam Provinciae appointed the Farmers of the Customes to collect among other Impositions the Tenths of the Tenants of the Empires that is of all who occupied any Land in the Conquered Province either as immediate Tenants to the Empire or as Sub-Tenants under them The Publicans therefore who collected these Tributes were called Decumani as Mr. Selden pag. 39. of his History of Tithes doth observe out of Appian But whether these Tenths were received by the Senate or Emperours upon a Civil or Religious account is not liquid and clear For the Emperours alwaies till Christianity came in nay Constantine and other Emperours even after Christianity was received till Gratian's time as the Noble and Learned Du-plessy in his Mystery of Iniquity observes out of Zosimen continued the chief Pontifice or High-Priesthood in their own persons And as touching us here in England Dr. Heylin P. H. Treleyny in his Treatise touching Tithes p. 3. saith Tithes are not given to the Ministers by the People for Sr. Ed. Coke on Litt. Tenures lib. 1. c. 9. Sect. 73. fo 58. asserteth That it appears by the Laws and Ordinances of Ancient Kings and especially of King Alfred That the first Kings of this Realm had all the Lands of England in Demesn and Les Grandé Mannors Royalties they reserved to themselves and with the Remnant they for the defence of the Realm enfâ—offed the Barons of the Realm with such Jurisdiction as the Court Baron now hath And at this time when all the Lands of England were the King Demesns that Ethelwolph the Second Monarch of the Saxon race his Father Egbert being the first which brought the former Heptarchy under one
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 Appeâ—ls pray the Prohibiâ—ion 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 Tithâ—s 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 â—e 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 Wâ—oth'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 â—or 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
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 Deâ—imandi 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-kilâ—s 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 Glâ—be for years he paid Tithes But if a Lay-man who had the Impropriation Leases the Glâ—be 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 〈◊〉 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
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 Finâ—h 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. Sâ—â—t 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-Coâ—ks 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 â—ound 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 â—or 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 sâ—t 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 â—â—â—ndant pleads Niâ—il debet per patr and it was found for the 〈◊〉 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 〈◊〉 Tenths renewing within that Parish except Decimas graâ—â—â—â—m 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 bâ—ing 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
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-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-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
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
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
but if the Owner himself after he hath once set forth his Tithes takes them away again the Parson may Sue him in the Ecclesiastical Court for the Tithes S. Libelled in the Ecclesiastical Court against H for Subtraction of Tithes the Defendant there pleaded That he had divided the Tithes from the Nine parts And then the Plaintiff made Addition to the Libel in nature of a Replication viz. That the Defendant divided the Tithes from the Nine parts Quod praedict the Plaintiff non fatetur sed prorsus diffitetur yet presently after the pretended Division in fraudem Legis he took and carried away the same Tithes and converted them to his own use and thereupon the Plaintiff obtained Sentence in the Ecclesiastical Court and to recover the Treble value according to the Statute of 2 Ed. 6. cap. 13. And thereupon H. made a Surmize that he had divided his Tithes and that the Plaintiff ought to Sue in the Ecclesiastical Court for the Double value and at the Common Law for the Treble value But it was Resolved by the whole Court That the said Division mentioned in the Libel was not any division within the Statute of 2 Ed. 6. c. 13. For that Act provides That all the Kings Subjects henceforth shall truly and justly without Fraud divide set out yield and pay all manner of other Predial Tithes in their proper Land So as when he divides them to carry them away he divides them not justly without fraud and therefore the same is out of the Statute and where the words of the Statute are divide set out c. their Predial Tithes c. and if any person carry away his Corn and Hay and other Predial Tithes c. And to make an evasion out of these words this Invention was devised the Owner of the Corn by Covin sold his Corn before Severance to another who as Servant to the Vendee reaped it and carried it away without any Severance pretending that neither the Vendor because he did not carry them away nor the Vendee because he had no property in them should be within the Statute But it was Resolved That the Vendor should be charged in that case with the penalty of the Statute for he carried them away and his fraud or covin shall not help him Vid. 8 Ed. 3. 290. 9 H. 6. 41. 33 H. 6. 5. But it was Resolved That the Plaintiff could not Sue in the Ecclesiastical Court for the Treble value but for the Double value he might A Parson Libels in the Ecclesiastical Court upon the Statute of 2 Ed. 6. cap. 13. for Tithes The Case was this The Parishioner sets them out according to the Statute but they being so set out he would not suffer the Parson to come and take them away thinking by this means and this way to avoid the Statute And upon this the Parson Libels in the Ecclesiastical Court for these Tithes the Defendant there Surmizes That he did not hinder him from the having of his Tithes but saith That he did hinder him in coming for his Tithes one way which was the usual way but that he might have come for them another way And upon this a Prohibition was prayed and granted supposing that there was no question at all as touching the payment of Tithes but as touching the Way to come for them and upon this whole matter the Parson prayed a Consultation The whole Court were clear of Opinion That such a setting out of Tithes as the same appeared here to be in this Case without suffering the Parson to come and take away his Tithes that this is a fraudulent and no good and sufficient setting forth of Tithes according to the Statute and as the Statute doth require which ought to be a fruitful and effectual setting forth of his Tithes for in so doing he ought to set forth his Tithes and also to suffer the Parson to come have and to take away his Tithes otherwise unless he do also perform this the setting out of his Tithes here is to no purpose for to excuse him and to the Surmize here made for the Way The whole Court clear of Opinion That this is no waies at all material and so without any further motion or Arguments by the Rule of the Court a Consultation was granted Vid. Bulstr par 1. fo 108. Hill 8 Jac. V VEnison though not Tithable of it self yet may be given as Modus Decimandi Per Assisas Forestae and other Records it doth appear that Tithes have been paid even of Venison in divers parts of England Vetches Tares and the like eaten by the Cattel that do the Husbandry in the same Parish be it eaten on the Ground or elsewhere are not Tithable unless the Parson hath a Special Custome for it Vine is Predial Tithe Co. Magna Charta 649. Vnity of Possession or Unity of the Parsonage and Lands which should pay Tithes in the hands of Religious and Ecclesiastical persons By this Vnity of Possession Tithes are not now discharged in Right though in Payment so that it is not to be pleaded as a Discharge of Tithes but as a discharge of the Payment of Tithes This Vnity hath been often Resolved to be a good Discharge of the payment of Tithes within the meaning of the Statute of 31 H. 8. Originally this Vnity was where an Abbot Prior c. time out of mind had been seized of Lands in themselves Tithable and also of the Rectory of that Parish wherein such Lands did lie So that Vnity of the Parsonage and Lands which should pay Tithes by Appropriation or otherwise in the hands of Religious and Ecclesiastical persons had discharged from the payment of Tithes and now since the said Statute of 31 H. 8. such an Vnity of Possession in the said Religious Houses and Lands and Persons shall be a Discharge for the Kings Patentee for the Lands that came to the Crown by the said Statute But then it was Resolved That such an Vnity must have been Justa Libera Aequalis and Perpetua It must have been Justa claimed by Right by good and lawful Title and not by Disseisin or other extortious and unlawful Acts for such an Vnity had not been a good discharge within the Statute 2. It must have been Aequalis that is there must have been a Fee-simple both in the Lands and in the Tithes as well of the Lands upon which the Tithes are as of the Parsonage or Rectory for if those Religious persons had held but by Lease that had not been such an Vnity as the Statute intended 3. It must have been Libera free from the payment of any Tithes in any manner for if their Farmers Tenants at Will or Years had paid any manner of Tithes before the Dissolution it may be a sufficient Bar to avoid the Vnity pleaded in discharge of Tithes 4. It must have been Perpetua time out of mind that such Religious Houses were Endowed and such Religious Persons had in their
the different conditions of the persons of whom they were begotten As when they were begotten by persons of a single and unmarried Estate and of such as were kept as Concubines the Civil Law called them Filii Naturales if begotten of single Women not design'd for Concubines for satisfaction of present Lust then they were called Spurii if begotten of such as the Law styles Scorta or common Harlots by publick profession than they were called Manzeres if begotten of Married Women then they were called Nothi if begotten between Ascendents and Descendents or between Collaterals contrary to the Divine prohibition then they are called Incestuosi 6. Bastardy so stains the Blood that the Bastard can challenge neither Honour nor Arms and so disables him that he cannot pretend to any succession to inheritance The Temporal and the Ecclesiastical Laws with us do not differ as to matter of Bastardy but something as to the prosecution thereof The Ecclesiastical Law brings it two ways to Judgment Incidently and Principally the Common Law makes two sorts thereof General and Special Incidently at the Ecclesiastical Law when it is pleaded in Bar to a claim of something in right of Nativity Principally when by reason of some slanderous and reproachful speeches it is brought before the Court as the principal matter in Judgment to be alledged and proved that thereupon Sentence may be pronounced accordingly by the Ecclesiastical Judge Ad Curiam enim Regiam non pertinet agnoscere de Bastardia General Bastardy at Common Law is so called because it is in gross objected in Barr against a Man to disappoint him in the Principal matter of his Suit Which because it is of Ecclesiastical Cognizance is sent by the Kings Writ to the Ordinary to enquire whether the Party charged with Bastardy were born in or out of Lawful Matrimony And as the Ordinary finds the truth of the matter upon due examination so he pronounceth accordingly in his Consistory whereof he returns Certificate to the Temporal Courts Special Bastardy at the Common Law seems to be only that where the Matrimony is confest but the Priority or Posteriority of the Nativity of him whose Birth is in question is controverted General Bastardy ought to be Tryed by the Bishop and not by the Country But Bastardy in this sense cannot be tryed by the Ordinary otherwise than by vertue of the Kings Writ on some Suit depending in the Temporal Court When Issue is joyn'd on Bastardy before it be awarded to the Ordinary to Try it Proclamation thereof is made in the same Court and after Issue it is certified into Chancery where Proclamation is made once a Month for three Months and then the Lord Chancellour certifies it to the Court where the Plea is depending and after it is Proclaimed again in the same Court that all such whom the said Plea concerns may appear and make their Allegations before the Ordinary whose Certificate of Bastardy is nothing to the purpose unless it come in by Process at the Suit of the Parties And this Bastardy ought to be certified under the Seal of the Ordinary for it is not sufficient to certifie it under the Seal of the Commissary And although the Defendant be certified a Bastard by the Ordinary yet the Certificate shall lose its force if the Plaintiff be afterwards Nonsuit for then the Certificate is not of Record In the Case of Elborough against Allen it was said by Crook that for calling one Bastard generally there is not any sufficient Ground of Action at the Common Law but if there be any special Loss thereby it shall be a good ground of Action at the Comon Law as if a Man be upon Marriage or in treaty for the sale of Land whereby his Title is disparaged Doderidge Justice said That the word Bastard is generally of another Jurisdiction and belongs to the Ecclesiastical Court to determine what shall be Bastardy and their Judgement is given for the damage which the party had in his birth and for that their Entry is quia laesis est natalitiis And in this Case the Chief Justice said that generally to say J. S. is a Bastard J. S. hath not cause of Action given him thereby but if there be a Temporal cause averr'd the Common Law may proceed therein for though Originally Bastardy be of the Ecclesiastical Jurisdiction not Triable at the Common Law and therefore as in its general nature it is of the Spiritual Jurisdiction so being by its generality no ground of Action at the Common Law yet if one be to sue for a Childs part or sue for the Administration of his Fathers Goods and this be set forth in the Declaration it will maintain an Action at Common Law Doderidge Justice said That to say generally that one called him Bastard is not ground of Action if he doth not shew some special Loss thereby as when a Woman brings her Action and says that she was in Treaty of Marriage and that the Defendant called her Whore this will not maintain an Action unless she say withall that by reason of these words she lost her preferment but Chamberlain Justice said to call a Woman Whore is at this day a sufficient cause of Action for her for that it is punishable by the Statute he also further said that if a Man Libel in the Ecclesiastical Court that he hath Lands by descent and that J. S. call'd him Bastard they may not proceed there or if they do a Prohibition lies He further said that for calling a Man Bastard generally without special Loss alledged Action shall be maintained and Cited a Case in 6 Eliz. Dyer Where a Man recovered red great Dammages for that the Defendant had said that his Father was a Bastard And cited also one Nelson and Stokes Case in 5 Jac. where the Plaintiff did not alledge any special cause of Action and yet recovered 7. By the Civil Law such as were born in the beginning of the eleventh Month next after the decease of their Mothers Husband were to be accounted legitimate but such as were born in the end thereof were to be accounted Bastards Auth. Col. 4. yet the Gloss there relates a matter of Fact contrary to this Law and gives us an instance of a Widow in Paris who was delivered of a Child the fourteenth Month after her Husbands death yet the good repute of this Womans continency prevailed so much against the Letter of the Law that the Court Judg'd the causes of Child-birth to be sometimes extraordinary the Woman to be chast and the Child Legitimate Hoc tamen in exemplum trahi facile non oportet as the Gloss there concludes 8. By the Common Law if a Child be born but an hour after the solemnization of Marriage it shall be the Husbands though it were begotten by another Man who was not the Mothers Husband and may be the Heir of him who Married the Mother but a Day
Men which belong to the Blessed Hill They abstained from things that have life and some of them from Marriage One Dosithens a Samaritan is supposed to be the first Founder of the Samaritam Heresies and the first among them that rejected the Prophets as not having spoken by the Holy Ghost There were four sects of Samaritan Hereticks according to Epiphanius each of them holding their different Heresies in some respects and having in other respects certain Heretical Tenents common to them all By all which premisses it is most evident that the Prince of Darkness and the Father of Lyes hath had in all Ages Nations and Churches his Emissaries to infect them with Heretical and Blasphemous Erros but the Gates or Power of Hell to this day never could nor to Eternity ever shall prevail against the Truth CHAP. XLI Of Councils Synods and Convocations 1. The several kinds of Councils and Synods 2. What Canons in force in the Realm of Primo Ed. 6. Also how the Canons entituled Reformatio Legum Ecclesiasticarum became abortive 3. That part of the Canon Law is part of the Law of England 4. Convocation in England what how and by what Authority and for what ends conven'd also of what Members it doth consist with the Authority thereof 5. Convocations and Provincial Synods of very great Antiquity in England have been ever call'd by the Kings Writ their Priviledges 6. The Canons and Ecclesiastical Constitutions may not be repugnant either to the Kings Prerogative or to the Laws Statutes or Customes of this Realm 7. Lindwood's Method of Provincial Synods in this Realm and under what Archbishops 8. The four several kinds of Councils and Synods in general 9. A compendious Catalogue thereof when and where held by and under whom conven'd with the principal matters therein treated and determined 1. OF Councils or Synods there are four kinds viz. 1 Oecumenical as being called out divers Nations 2 National as out of divers Provinces both these kinds of Councils or Synods were ever assembled by Imperial Regal or Papal Authority 3 Provincial as out of divers Dioceses conven'd by Metropolitans or Patriarchs 4 Diocesan as out of one Diocese onely assembled by the Bishop thereof The frequent celebration of Synods the Council of Basil calls praecipuam agri Domini culturam Touching Synods vid. Duar. de Sacr. Eccl. minist et benefic 2. In the Reign of King Hen. 8. the Bishops and Clergy in the Convocation an 1532. oblig'd themselves neither to make nor execute any Canons or Constitutions Ecclesiastical but as they were thereto enabled by the Kings Authority it was by them desired by him assented unto and confirm'd in Parliament that all such Canons and Constitutions Synodal and Provincial as were before in use and neither repugnant to the word of God the Kings prerogative Royal or the known Laws of the Land should remain in force until a Review thereof were made by 30 persons of the Kings appointment which Review not having been made from that time to the first year of King Edward 6. All the said old Canons and Constitutions so restrained and qualified did then still remain in force as before they were For this consult the Act of Parliament of 25 H. 8. c. 1. And in the Third year of the said King Edward 6. there passed an Act in Parliament For enabling the King to nominate Eight Bishops and as many Temporal Lords and Sixteen Members of the Lower House of Parliament for Reviewing of such Canons and Constitutions as remained in force by virtue of the Statute made in the 25th year of King H. 8. and fitting them for the use of the Church in all times succeeding According to which Act the King directed a Commission to Archbishop Cranmer and the rest of the Persons whom he thought fit to nominate to that employment and afterwards appointed a Sub-Committee of Eight persons to prepare the Work and make it ready for the rest that it might be dispatch'd with the more expedition which said Eight persons were the Archbishop of Canterbury Dr. Goodrick Bishop of Ely Dr. Cox the Kings Almoner Peter Martyr Dr. in Divinity William May and Rowland Taylor Drs. of Laws John Lucas and Richard Goodrick Esquires by whom the Work was undertaken and digested fashioned according to the method of the Roman Decretals and called by the name of Reformatio Legum Ecclesiasticarum c But not being Commissionated hereunto till the Eleventh of November in the year 1551. they either wanted time to Communicate to the chief Commissioners by whom it was to be presented to the King or found the King encumber'd with more weighty Affairs than to attend the perusal thereof And so the King dying before he had given life unto it by his Royal Assent and Signiture the design miscarried and never since thought fit to be resumed in the following Times by any of those who have had the Government of the Church or were concerned in the honour and safety thereof 3. It is asserted by good Authority That if the Canon Law be made part of the Law of this Realm then it is as much the Law of the Land and as well and by the same Authority as any other part of the Law of the Land Likewise in the Case of Shute against Higden touching Voidance of a Former Benefice by being Admitted and Instituted into a Second and that by the Ancient Canon Law received in this Kingdom This says the same Authority is the Law of the Kingdom in such cases And in the Case of Hill against Good the same Author doth further assert That a Lawful Canon is the Law of the Kingdom as well as an Act of Parliament And whatever is the Law of the Kingdom is as much the Law as any thing else is so for what is Law doth not suscipere magis minus Which Premisses though they may seem yet are not inconsistent with what Sr. Ed. Coke says viz. That the Laws of England are not derived from any Forein Law either Canon Civil or other but a special Law appropriated to this Kingdom That it may be said of its Law as of its situation Et penitus toto divisos Orbo Britannos 4 Convocation is the highest Ecclesiastical Court or Assembly called and convened in time of Parliament by the Kings Writ directed to the Archbishops consisting of all the Clergy of both Provinces either Personally or Representatively present in the Upper House of the Archbishops and Bishops and the Lower House of the other Clergy or their Proctors chosen and appointed to appear for Cathedral or other Collegiate Churches and for the Common Clergy of every Diocess with a Prolocutor of each House and President of the Convocation for the Province of Canterbury to consult of matters Ecclesiastical and thereon to Treat Agree Consent and Conclude as occasion requires on certain Constitutions and Canons Ecclesiastical to be ratified and confirmed by the Royal Assent They were Anciently called
Reparation of the Church z Hill 4 Car. C. B. Andrews vers Hutton Hetley's Rep. a Noy's Rep. post Cas â—ore vers Stark b Post Case Tyrwhite vers Kynaston Nay 's Rep. Striking in the Church-yard c Hart versus Arrowsmith Post dict Cas Noy 's Rep. Trees in the Church-yard d Rol. Abr. verb. Parson nu 3. Seats in the Church Brownl Rep. pa. 1. Cases in Law c. Reparations of the Church Reparations of Church-Seats e Pasâ—h 8 Jac. B. R. Wagginer and Wood. Brownl Rep. pa. 2. Mich. 8 Jac. B. R. Brownl ubi supra Sâ—ats in the Church f Mich. 11 Jac. B. R. per Cur. Mich. 10 Jac. B. â—ym's Case per Cur. Hob. Rep. 95. More Rep. g Tr. 12 Jac B Cross's Case Resolved per Cuâ— M. 13 Jac. B. Lâ—ugh and Hussey Resol M. 13 Jac. B. Boothby and Day Hob. Rep. 95. Rol. Abr. pag. 288. h M. 11 Jâ—c B. R. per Cur. dict Case Boothby Hob. 93. i Tr. 12 Jac. B. Agreed Rol Abr. so 288. k Pasch 16 Jac. B. R. inter Braâ—in and Tredennick for a Seat in the Church of St. Breock in Cornwal Vid. Rol. Abr. verb. Prohibition pag 288. l Co. 5. Jeffrey 's Case 67. Resolved Reparations of the Church m Co. ibid. Tr. 11 Jac. B. Andrews Case per Cur. Contra M. 40 41. El. B. R. per Cur. n Co. ibid. Jeffrey's Case Resol M. 5 Jac. B. o Pasch 16 Jac. B. R. Sr. H. Buâ—ler vers c. Resol Co. 5. Jeffreys 67. p M. 5 Jac. B. Sr. Ro. Lee's Case per Cur. q M. 13 Jac. B. the Case of the Church-wardens of Ashton and the Inhabitants of Castel Bromage Hob. Rep. 91. r Hob. Rep. 92. Ornaments of the Church s Mich. 20 Jac. B. R. t Ibid. Resol per Cur. u Mich. 11 Car. B. R. per Cur. x Mich. 2 Car. B. R. per Cur. y Mich. 14 Jac. B. R. Fisher and Chamberlayn Resol Hil. 41 Eliz. B. R. Piper and Barnaby Adjudg'd Hill 13 Jac. B. R. Foster and Hide Adjudg'd z Mich 12 Jac. B. R. Bellamy's Case Resolv'd Hill 19 Jac. B. R. Rot. 922. Peeter vers Rose Edmonds Wid. Roll. Rep. Hill 20 Jac. B. R. Church-wardens Case Roll ' Rep. Cro. par 2. Mich. 18 Jac. B. R. Dawney and Dee's Case Cro. par 2. Seats in a Chappel Pasch 33 Eliz B. R. Dethick's Case Cro. par 1. Striking in the Church-yard Penhallâ—'s Case Cro. ibid. Child's Case Cro. ibid. Corven's Case Co. lib. 10. Right to Seatâ— in the Church A Chappel of Ease taxed by the Mother-Church for reparations thereof Hill 7 Jac. B. R. Bulstr par 1. A Presentment ex Officio for not frequenting his Parish-Church Trin. 9 Jac. B. R. Bulstr par 1. Pasch 8 Jac. B. R. Bulstr par 1. Seats in a Church Mich. 11 Jac. B. R. May against Gilbert Bulstr par 2. Oeconomi vel Ecclesiae Guardiani Churchwardens if elected by Vestry where good and capable to puâ—chase Lands Vid. St. Saviâ—urs in Sâ—uthwark 's Case Lane Rep. a Can. 115. b Can. 116. c Can. 117. d Can. 118. e Can. 89. f Mich. 8 Car. B. R. Case Kâ—rcheval vers Smith alios Jonâ—'s Rep. g 11 H. 4. Triâ— 12 Jac. B. R. Bucksalâ—'s Case Roll. Rep. h 14 Jac. B. R. in Motam's Case Roll ibid. i Per Dod. Mich. 13 Jac. B. R. Bellamie's Case Roll Rep. k Ibid. l Dict. Bucksalâ—'s Case It is Felony and Sacriledge to steal away the Parish-Bible cut of the Church and suable at Common Law m Co. 9 Ed. 4. Trin. 12 Jac. Bucksale's Case Roll. Rep. n Hill 31 Eliz. C. B. The Church-wardens of Fetherstone 's Case Leon. Rep. o Butâ—'s Case Noy Rep. * Vestry from Vestments the place where the holy Vestments are kept This is used once in the Bible and but onâ—â— 2 Kiâ— 10. 22. where the Baâ—liâ—es kept theiâ— Vestments p Mich. 4 Jac. C. B. Noy Rep. These Sidemen were called Testes Synodales anciently styled Synods men thence corruptly called now Side-men a Okely vers Salter Noy 's Rep. b Wharton's Case Noy's Rep. c Roll. Abr. verb. Prerog lit L. d Vid. Bishop Sparrow's Collection c. pa. 5. Hill 7 Jac. 1609. B. R. Barton's Case Brownl Rep. pâ—r 2. Mich. 22 Jac. B. R. Between Walpoole and Coldwell for the Clerk of S. Tho. Apost Lond. Intratur Hill 22 Jac. Rot. 466. P. 19 Jac. B. R. Rot. 177. P. 11 Car. B. Sâ—iâ—h and Pannel's Case Hob. Rep. Case 311. P. 5 Jac. B. R. The Parishioners of Rolvendon in Kent Adjudg'd Tr. 7 Car. B. R. between Shirley and Brown Rot. 1 91. P. 4 Car. B. R. Rot. 420. Draper and Stone Mich. 14 Car. B. R. The Churchwardens of Claydon and Duncombe Roll. Abr. pag. 287. Mich. 15 Car. B. R. inter Homes Goâ—d in per Cur. Pasch 37 El. B. inter Longley Meredine 38 El. Methold and Winâ—'s Case cited by Coventry Trin 12 Jac. B. R. per Cur. Adjudg'd Mich 37 38 Eliz. B. R. Mithold and Winn's Case ut supâ— Adjudg'd Hill 16 Jac. B. R. Bishop's Case Roll's Rep. Hadman and Ringwood's Case Cro. par 1. Warner's Case Cro par 2. â—inch lib. 2. cap. 17. p. 179. Roll's Cases par 1. fo 393. a Broo. tit Vnion 37 H. 8. c. 21. 37 H. 8. c. 21. 1 Ed. 6. c. 9. 17 Car. 2. c. 3. St. 17 Car. 2. c. 3. a Pars Couns par 1. cap. 8. b Co. 11. 49. 2. c Rot. Pa. 14 H. 3. in 8. d 20 H. 6. 46. a. 2 H. 4. 3. b. Co. 11. 94. b. 29 E. 3. 16. a. 9 E. 4. 34. a. e St. 13 El. c. 2. f St. 13 El. c. 5. g F. N. B. 51. f. h Vid. Pars Couns par 1. cap. 8. i St. 14 El. c. 11. Co. Inst pa. 3. cap. 97. 29 E. 3. 16. 2 H. 4. f. 3. 9 E. 4. 34. k Bishop Sparrow's Collect of Articles c. pa. 5. Hill 31 Eliz. B. R. Mott Halâ—'s Case Cro. par 1. What Timber a Bishop may fell and for what purposes Mich. 12 Jac. B. R. Chapman vers Jane Barnaby Bulstr Rep. Mich. 13 Jac. B. R. The King against Zakar Bulstr par 3. Mich. 13 Jac. B. R. Knowll and All. vers Harvey Bulstr par 3. * 22 H. 6. 29. b. If they refuse being duly Summoned to Appear the Commissioners of the Bishop may proceed against the Clergy-men by Sâ—questration and the Lay-men by Ecclesiastical Censures †It is an Inquest of Office in nature of a Writ De proprietate probanda and doth not bind the parties Right and Title a Pasch 17 Jac. C. B. Rot. 877. Case Sir W. Elvis vers Archbishop of York and others Hob. Rep. b St. Westm 2. cap. 5. Terms of Law verb. Quare Impedit c 25 Ed. 3. 5. d Fleâ—a l. 5. cap. 14. F. N. B. fo 39. e Britton cap. 29. 41 H. 6. 45. a. f Callis Reâ—d 3. 21 H. 6 44. â— Sed Quaere 21 H. 6.