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
in Pembrokeshire the Chaunter is next to the Bishop there being no Dean Chauntry Cantaria Aedes sacra ideo instituta dotata praediis ut Missa ibidem cantaretur pro anima Fundatoris Propinquorum ejus These were commonly Little Chappels or particular Altars in some Cathedral or Parochial Church endowed with Lands or other Revenues for the maintenance of one or more Priests to officiate as aforesaid whereof mention is made in certain Statutes of this Realm though not to such Superstitious uses as aforesaid A man might make a Chauntry by License of the King without the Ordinary for the Ordinary had nothing to do there with 9 H. 6. 16. It might be Founded in a Cathedral Church also in any other Church 9 H. 6. 17. Roll. Abr. ver Chauntry lit A. Q. 387. Of these Chauntries there were it seems 47 belonging to St. Pauls Church in London The Superstitious main use and intâ—nt of these Chauntries originally was for Prayers for Souls departed under a supposition of Purgatory and of being released thence by Masses Satisfactory and as in Adam's Case fo 112. mentioned by Sir Hen. Hobart Chief Justice in the Case of Pitts against James That Prayer for such Souls was the general matter of all Obits Anniversaries and the like which were but several Forms of Prayers for Souls And as in the said Case of Pitts if a man give Land to a Parish-Priest to pray or say Mass for his Soul this is within the Law that is within the Statutes of 37 H. 8. c. 4. and 1 Ed. 6. c. 14. as it is held 16 Eliz. Dyer 337. for to this purpose he is a Souls-Priest not a Parochial By which Statutes all Chauntries and all their Lands and Hereditaments are given to the Crown and all Lands Rents and Profits given to the finding of a Priest for the Superstitious ends aforesaid to continue for ever are vested in the actual possession of the King and of his Heirs and Successors for ever who shall also have by the said Statute of 1 Ed. 6. all the Common Goods of such Chauntries and the Debts thereof shall be paid to the Kings Treasurer and shall also have all Lands and all such Sums of money and part of the issues of Lands given for the maintenance or for the finding of any Anniversaries Obits Lights Lamps c. Only the said Act doth not extend to such Lands as whereof the Governours of such Colledges as were mentioned therein or Chauntries were seized to their own uses nor to any Lands or Rents given by the King for the term of his life only nor to any Copyhold-Lands and all Rents and yearly profits due to any Patron Donor and Founder of any of the said Chauntries c. and the Right of others except the Governours of Houses are by the said Act saved to them All Chanteries Colledges Free-Chappels and Hospitals were by Parliament given to King H. 8. for the carrying on the War against France and Scotland Towards the Charges of which Wars the King obtained a Grant in Parliament of the same with the Lands thereto belonging to be united to the Crown But dying before he took the benefit thereof he left that to such of his Ministers who had the managing of Affairs in his Son's Minority Heyl. Hist Eccles pag. 12. In the Reign of King Ed. 6. one of the great Affairs was the retrieving of a Statute made in the 27th year of King H. 8. by which all Chanteries Colledges Free-Chappels and Hospitals were permitted to the disposing of the King for term of his life but the King dying before he had taken many of them into his possession it was set on foot again in the time of King Ed. 6. and by Parliament during his Reign it was Enacted That all such Colledges Free-Chappels and Chanteries as were in being within Five years of the present Session which were not in the Actual possession of the said late King c. other than such as by the Kings Commissions should be altered transported and changed together with all Mannors Lands Tenements Rents Tithes Pensions Portions and other Hereditaments to the same belonging after the Feast of Easter then next coming should be adjudged and deemed and also be in the Actual and Real possession and Seisin of the King his Heirs and Successors for ever And although the Hospitals being at that time 110 were not included in this Grant as they had been in that to the King deceased c. yet there were 90 Colledges within the compass of that Grant those in the Universities not being reckoned in that Number and no sewer than 2374 Free-Chappels and Chanteries the Lands whereof were thus conferr'd upon the King by Name but not intended to be kept together for his benefit only In which respect it was very strongly insisted on by Archbishop Cranmer That the dissolving of these Colledges Free-Chappels and Chanteries should be deferred until the King should be of Age to the intent that they might serve the better to furnish and maintain his Royal Estate than that so great a Treasure should be consumed in his Non-age as it after was These Chanteries consisted of Salaries allowed to one or more Priests to say daily Mass for the Souls of their deceased Founders and their Friâ—rds which not subsisting on themselves were generally incorporated and united to some Parochial Collegiate or Cathedral Church No fewer than 47 in Number being as aforesaid found and Founded in St. Pauls Free Chappels though Ordained for the same intent were independent of themselves of stronger Constitution and richer Endowment than the Chanteries severally were All which Foundations having in them an admixture of Supersâ—â—tion as presupposing Purgatory and Prayers to be made for the deliverance of the Soul from thence were therefore now suppressed upon that account Heyl. Hist Eccles in temp Ed. 6. pag. 50 51. 7. Before King John's time the King and other Founders and Patrons of Priories and Abbies were wont to present Priors and Abbots But by King John there was a Free Election granted unto Priors 8. In Adams and Lambert's Case touching Chanteries these differences were taken 1 If one give 20 l. per annum for the Finding of a Priest and limit to the Priest 10 l. per annum all is given to the King for the residue shall be intended for the finding of Necessaries otherwise it is if a Condition be annexed to the Gift to give 10 l. per annum to a Priest there the King shall have but 10 l. 2 Land of 20 l. per annum is given to find a Priest with 10 l. per ann thereof and that the other 10 l. shall be to the Poor the King shall have but 10 l. But if it be for finding a Priest and maintenance of Poor men without limiting how much the Priest shall have the King shall have the Land for otherwise he shall have nothing 3. If Land of 20 l. is given
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
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
Fee-simple may pass to them without the word Successors because in Construction of Law such Body Politick is said never to die This must be understood only in reference to their taking of the thing granted in their Politick not Natural Capacity 11. One Bishop may possibly have two Chapters and that by Union or Consolidation as in the Bishop of Waterford's Case who had the Bishoprick of Lismore and the Chapter thereof united to that of Waterford In which Case although the Chapter of Lismore only Confirmed the Grants of Lands belonging to Lismore and the Chapter of Waterford only confirmed the Grants of Lands belonging to the Bishoprick of Waterford yet because the Union there was not extant the Judges held the Confirmation in manner aforesaid to be good but otherwise all the Judges held that both Chapters ought to have Confirmed For it seems if a Bishop hath two Chapters both must Confirm his Leases 12. A Parsonage in the Diocess of W. is annexed to a Prebend in S. the Prebend makes a Lease for years which is Confirmed by the Bishop and Dean and Chapter of S. It was held by the Court to be good without the Confirmation of the Bishop of W. in whose Diocess it is In Eyre's Case it was resolved That Chapters are not of a capacity to take by Purchase or Gift without the Dean who is their Head And in the Case of Eaton-Colledge where a Lease was made by the Dean and Chapter of the Colledge of Eaton whereas they were incorporated by the Name of the Dean and Chapter of the Colledge of St. Maries of Eaton Resolved that the Lease was void for the Misnosiner Yet whereas the Dean and Canons of Windsor were Incorporated by Act of Parliament by the Name of the Dean and Canons of the Kings Free-Chappel of his Castle of Windsor and they made a Lease by the Name of the Dean and Canons of the Kings Majestie 's Free-Chappel of the Castle of Windsor in the County of Berks Resolved the Lease was good For although the King in the Act of Parliament calls it his Castle yet when another speaks of it it is more apt to call it the Castle and therefore such variance shall not avoid the Lease Likewise whereas Christs-Church in Oxon is incorporated by the Name of Dean and Chapter Ecclesiae Cathedralis Christi de Oxon and they made a Lease by the Name of Dean and Chapter Ecclesiae Cathedralis Christi in Academia de Oxon and the Liberties de Academia did extend further than the Liberties of the City yet it was adjudged a good Lease because the substance of the Corporation was inserted in the words of the Lease CHAP. VIII Of Archdeacons 1. What an Archdeacon is his Office and Jurisdiction 2. The several kinds of Archdeaconries and how many in England 3. Whence the Archdeacons power is derived and whether a Quare Impedit doth lie of it or not 4. In what case Action lies against an Archdeacon for refusing to give Induction to a Clerk Instituted by the Bishop 5. Archdeaconry not comprized under the notion of a Benefice with Cure of Souls 6. Process of Quorum Nomina prohibited by the Canon to be issued by any Archdeacon 7. How often an Archdeacon may have his Visitation and what his Office or Power therein is 8. How a person ought to be qualified that may be an Archdeacon It is an Ecclesiastical Dignity 9. Cardinal Otho's Constitution touching the Archdeacons government in his Visitations 10. How Archdeacons are distinguished at the Canon Law 11. Conformity thereto in the practice of the Common Law 12. A Case at Common Law touching a Lease for years of a Glebe made by an Archdeacon 13. The same Case somewhat otherwise reported 14 Whether a Quare Impedit lies of an Archdeaconry 1. ARCHDEACON from archos Princeps or Chief and Diaconos Deacon that is the first or chief of the Deacons Sum. Host de Offic. Archid. c. 1. de Scrut in Ord. fac being according to the Canon Law such as hath obtained a Dignity in a Cathedral Church to have the Priority among the Deacons and first in Jurisdiction next after the Bishop Sum. Host ibid. For as of Common Right all Ecclesiastical matters within the Diocess appertain to the cognizance of the Bishop so under him to the Archdeacon excepting only such things as by Law are specially prohibited And therefore is said to be dignified with this Title for that in many things he doth supply the room of the Bishop to whom he is in precedency to others subservient and unto whom his service chiefly relates Every Bishop be it Archbishop or other hath under him an Archdeacon for the better discharge of his Cure He hath Jurisdiction of Common right which may vary according to Circumstances and the Custome of the place and therefore in some cases it is Jurisdictio Ordinaria in others it is Delegata And although regularly as such he doth not exercise any Jurisdiction within the Church it self yet it cannot be denied but that an Archdeaconry is an Ecclesiastical Dignity Fran. de Aret. in Concil 23. His Office and Jurisdiction by the Canon Law is of a far larger extent than is now practicable with us otherwise we should not there find him so frequently styled Oculus Episcopi for that he is by the very Law the Bishops Vicar in several respects and therefore may where the Bishop himself conveniently cannot keep the Triennial Visitations or not oftner than once a year save where emergent occasions do require it oftner He hath also under the Bishop the power of Examination of Clerks to be Ordained as also of Institution and Induction likewise of Excommunication Injunction of Penance Suspension Correction Dispensations of hearing determining and reconciling of Differences among the Clergy as also of enquiring into inspecting and reforming Abuses and Irregularities of the Clergy with a power over the Sub-deacons and a charge of the Parochial Churches within the Diocess In a word according to the practice of and the latitude given by the Canon Law to supply the Bishops room and as the words of that Law are in omnibus vicem Episcopi gerere Synt. jur l. 15. cap. 20. de Archidiacono 2. The Diocesses within this Realm of England are divided into several Archdeaconries they being more or less in a Diocess according to the extent thereof respectively and in all amounting to the number of Threescore And they divided again into Deanaries which also are subdivided into Parishes Towns and Hamlets Of these Archdeaconries some are by Prescription some by Law and some by Covenant Which difference hath this Operation in Law That the Jurisdiction of an Archdeaconry by Prescription or de jure is exclusive to the Jurisdiction of the Bishop insomuch that a Prohibition lies for such Archdeacon against the Bishop if he intermeddle Juridically with any matters or things within such Archdeaconries
Law Provisional touching the Building of new Chappels 18. Whether a Seat in the Church and Priority in that Seat claimed by Prescription be Triable at the Common Law by Action upon the Case 19. A Case in Law touching a Tax made in a Parish for the making of new Bells for the Church 20. Whether a Tax for Repairs of the Church may be made by the Church wardens alone without the Major part of the Inhabitants 21. Church-Seats in the generality are in the Ordinaries power to dispose 22. Divers other Cases at the Common Law pertinent to the subject of the Premisses 23. In what respects an Inhabitant in one Parish having Land in another may or may not be Taxed as to the Church of that Parish where the Land lies 24. The difference in Law between a Parsons grant to a man his own Tithes and his grant to him the Tithes of another man as to the validity of the Grant 25. Disposal of Seats in the Body of a Church belongs of Common right to the Ordinary of the Diocess 26. In what respect a man inhabiting in one Parish shall be charged towards the Reparation of the Church of another where he hath Land and in what respects not so 27. Rates for Reparation of Churches are cognizable only in the Ecclesiastical Court and no Prohibition notwithstanding any inequality in the Rate 28. Repairers of a Chappel of Ease not discharged thereby of Reparations of the Mother-Church 29. Land in a Parish not to be Rated for the Ornaments of a Church That Rate to be according to the personal Estate 30. In what case a Prohibition lies to a Suit for Reparations of a Church not so as to a Rate made by the Major part of the Parishioners for the Ornaments of the Church 31. The Bounds of a Parish not Triable in the Ecclesiastical Court though the difference be between two Spiritual persons 32. Prohibition where a Vicar sued the Parson Impropriate for Dammages for cutting down the Trees growing in the Church-yard 33. Prescription of Repairing a Chappel of Eâ—se no discharge from repairing the Mother-Church 34. The charge of Repairing a Church refers to Land of providing Ornaments of the Church to the personal Estate and how to be apportioned between Landlord and Tenant 35. Action of Trespas lies for the Heir of such whose Coat-Armor or Monument in Church or Church-yard is by any defaced or demolished be it by the Parson the Ordinary or by any other 36. A Case in Law touching a disturbance of sitting in certain Seats in a Chancel of a Church 37. Certain Cases in Law touching striking in a Church and Church-yard and drawing a Weapon in the same 38. The difference taken between having a Seat in the Isle of a Church and a Seat in the Body of the Curch 39. A Prohibition denied on a Prescription of not Repairing a Mother-Church in regard such Prescription is meerly Spiritual 40. The Ecclesiastical Court not to intermeddle with the Precincts of Parish-Churches 41. Towards Church-Reparations all Lands within the Parish as well of Foreigners as Parishioners are ratably liable 42. Controversies touching Seats in Churches determinable in the Spiritual not Temporal Courts In what Cases the Common Law hath took cognizance thereof 1. CHURCH Ecclesia 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 from the old word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 h. e. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or rather 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 h. e. evocare being an Assembly of men gathered out of all Mankind or evocatus per Evangelium or from the Hebrew Cahal h. e. Congregatio the true visible Church being a Congregation of Faithful men in which the pure Word of God is preached and the Sacraments duly ministred according to Christ's Institution in all things necessary to the same This in a Theological sense but the word Church in a Legal sense as here chiefly intended differs from the former as far as Dead Walls do from Living Saints there being no more here designed to be touch'd at than what refers rather to the Place than to the Persons Churches are of three sorts Cathedral Collegiate Parochial The Bishop is the Incumbent of the first Priors and Abbots were and Heads of Colledges are Incumbents of the second and Parsons of the third commonly called a Rectory being either a Parsonage or a Vicarage And that either 1 Ratione dotationis 2 Fundationis 3 Fundi 2. The Emperour Justinian Decreed That the Lands of the Church should not be sold alienated or exchanged unless it were to the Prince's house or to or with another like Religious place and that in equal goodness and quantity or that it were for the Redemption of Captives But by the Statute of primo Jac. the Possessions of the Church are protected from alienation or diminution in all respects and so as that they shall remain and continue according to the true intent of their Foundation to their Successors for ever to the uses and purposes therein limited 3. By the Common Law the Church and Church-yard are it seems the Soyl and Freehold of the Parson but the use of the Body of the Church and the Repairs and Maintenance thereof is common to all the Parishioners albeit the disposal of the Pewes in the Body of the Church or an Isle or Chappel joyning to the Body and the disposing of the charges of the Repairs thereof belong to the Ordinary insomuch that no man can challenge a Seat in the Body of the Church without shewing some special reason for the same All which appears in the Case of Boothby against Baily where Boothby being Executor of Gilbert brought a Prohibition against Baily and his Surmize was That whereas Sir Bernard Whetston was seized of the Mannor of Woodford-Hall and that he and those whose Estate he hath in the same had used time out of mind to have a peculiar Pew in the Body of the Church and that the Defendant by Suit in the Ecclesiastical Court sought to dispossess them of the same And by the Opinion of the whole Court this was no sufficient ground of a Prohibition for though the Church and Church-yard be in Law the Soyl and Freehold of the Parson yet the use of the Body of the Church and the repair and maintenance thereof is common to all the Parishioners And for avoiding of confusion the distribution and disposing of Seats and charges of Repair belong to the Ordinary and therefore no man can challenge a peculiar Seat without a special reason But if it had been Prescribed That Sir Bernard Whetstone c. had used time out of mind at their own costs to maintain that Pew and had therefore had the sole use thereof the Prescription might have stood and been warrant for a Prohibition though the Pew were in the Body of the Church And so it is in the like case of an Isle or Chappel adjoyning to the Body of the Church upon the same difference whether it hath been maintained by the whole Parish or
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
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
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
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
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
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-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
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