a Verdict in a Jure Patronatus 14. an Action of the Case lyes against him if he admit against the verdict in a Jure patronatus 14. v. Dilapidations and non-residence Coparceners present severally 17. Tenants in Common or Joyntenants 18. C. Canons against Common Law void 41. Calves Wool Lamb Milk Pigs c. how to be paid 169. The Canon ibid. Wool and Lamb how to be paid 170 c. Milk and Cheese 173. sheep not kept thirty daies 174. when Calves c. are to be paid 175. several mens sheep deposture together 176. of Wool Locks Beltings Neckings and of sheep that die of the rot 176. Charges to what Charges Tithes and Glebe Lands are subject and to what not 195. Concubines allowed Priests and other religious Persons and in what manner 124. vid. Incontinenc Confirmation of Bishops Leases where necessary 103. where he has two Chapters where good ibid. Lease confirmed before sealing 104. after the death of the Bishop ibid. makes several concurrent Leases and last first confirmed 104. grant all confirmed before the Inrollment 104. who is to confirm Leases where requisite 105 c. Lease Parson confirmed by the Bishop being Patron alone 106. Lease before Induction confirmed it is void 106. Confirmation for part of the Lands or term and how ibid. Parsons Lease is confirmed and then deprived 107. the Bishop and Husband of the Patroness confirms quod operatur 107. Tenant in tail Patron confirms ibid. Vsurper confirms 107. Patron grants the next avoidance and then confirms 107. Parson Leases to his Patron Bishop confirms and Patron assigns 107. a Bishop Patron confirms without Dean and Chapter qd operatur 108. a Parson Leases before 13 Eliz. confirmed after 108. a Prebend leases and recites that it is done by the Consent of the Bishop who is witness 108. Lessee grants a rent-charge which is confirmed 116. a verdict and judgment will not confirm such Grant where the Bishop is prayed made 116. Composition v. Real Composition Conveyances by what Conveyances Tithes may be past 219. Corn the Tithes thereof how to be paid 154. of Rakings 155. of green Corn cut for the Beasts of the Plow 156. Custom of what force in Tithing 185.189 of not Tithing where good 186. to make things not Tithable to be Tithable 187. the difference between it and Prescription ibid. how far the Canonists allows of Custom 188. D. Deprivation and Deposition quid 83. where determinable ibid. cause of Deprivation by Waste or Dilapidation 84. for Simony ibid. for non-conformity 84. for not reading the Common Prayers within two months after Induction 85. to maintain any Doctrine against the 39 Articles is cause of Depr 85. for what Crimes Ecclesiastical or Civil ibid. for unworthiness 86. for disobedience to the Ordinary 86. for taking a second Living 86. for a Priest to marry was Cause 86. Deprivation ipso facto quid 87. Debt sur 2 E. 6. by whom and against whom it lyes 295. the Form of the Declaration 295. what Pleas lye in it 297. what Evidence is good 298. what Verdict 301. what Judge shall begiven therein 301. Dignities qd 53. Dilapidations qd 74. a Canon against them 75 what relief against them 75. cause of Deprivation in a Bishop Parson c. 77. a Prohibition to forbid them 77. an Act of Parliament against fraudulent Conveyances to avoid the Remedy 78. an Action of the Case lyes at Law for them by the Custom of England 79. and the form ibid. Damages recovered how to be bestowed 80. Trees in Church-yards not to be cut 80. E. Evesque vid. Bishop Exchequer has Jurisdiction of Tithes 302. F. Farms not to be taken by Spiritual men 119. but in particular cases ibid. may not Farm anothers Parsonage ibid. nor keep a Tan-house or Brew house 119. Ferae naturae where Tithes shall be paid of birds and beasts ferae naturae 178. Fees what for Institution and Induction by the Canon Law 58. First fruits qd 195. why Vicarages are higher charged than Parsonages 198. Fishing vid. Ferae naturae Fowl domestick what Tithes shall be paid 183. Fowling vid. Hawking Fruit vid. Seeds H. Hay how to be paid 155. in Orchards 156. of Fodder in the Fens ibid. Grass cut in Meadows for beasts of the Plow 156. of Head lands Balks c. 155. Herbage the Canon 165. who shall pay it 166. not for Saddle Horses ibid. nor of beasts bred for the Plow or Pail ibid. nor for beasts ferae naturae 167. a Pasture eaten with mixt cattle ibid. with Beasts of the Plow ibid. of what cattle herbage is due 168. Hunting hawking fishing fowling 182. I. Incontinence vid. Concubines how punishable in the Clergy 121 and 126. Indicavit lay at Common Law and in what cases 288. in what cases it lyes at this day 289. not till after Libel 289. the Form of the Writ altered ibid. it lyes of offerings 290. by whom ibid. the manner of Proceeding therein 291. Induction how to be made 6. who may make it ibid. what is to be done after Induction 7. vid. Fees Institution in what manner made 6. may be made out of the Diocess ibid. what is effected thereby 7. Jure Patronatus where necessary 11. whether the Bishop be bound to sue it at his peril 12. it lyes though the Church be not litigious 13. the manner of Proceeding therein 14.15 how the Verdict is to be taken 16. the force thereof 17. the Jury refuses to give a verdict qd fieri 17. who may hold it 15. the Bishop himself may 18. if the Commissioners neglect their duty qd fieri 18. verdict in it does not bind ibid. at whose Gosts to be sued 12. Jurisdiction vide Recovery of the Spiritual Court in Simony 56. in Deprivation 83. Deposition and Resignation 87. K. King if a Simonist dyes possest if he lose the Presentation 54. may present upon a Simoniacal Contract though he cannot be guilty of it 54. L Lambs vide Calves Lapse incurs and Patron presents 8. if the Bishop may let the Church lapse where it is litigious 12. where it shall lapse by the taking of a second living 21. from what time the 6 months shall commence 7. and how accompted ibid. Leases what leases may be made by Clergy-men 89. at common Law 90. by the Stat of 32 H. 8. ib. what qualities such leases must have 92. they must be in Writing indented 92. must commence from the making ibid. the old lease must expire within a year 92. there must not be a double lease ibid. what things may be leased ibid. 96 not an Advowson 116. lands usually let 92. the usual rent must be reserved 93. must not be without Impeachment of waste 93. Parsons and Vicars excepted in 32 H. 8.94 lease for 99 years if three lives live so long good ibid. Bishops are restrained by 1 Eliz 94. where such leases shall be only voidable 95.1 Eliz. is a private Act 96. concurrent leases by Bishops 96. but not for life or on a lease for life 104.
to the Rector of the Parish Church wherein they arise yet notwithstanding the Parson of one Parish may prescribe to have a Portion of Tithes in the Parish of another 14 H. 4.17 a 44 Ass p. 25. Roll 1.657 o. and so might Abbot Priors and other religious persons prescribe to have portions of Tithes in Parishes How Prescriptiont are to be proved Seld. hist decim 364⸪ 290⸪ whereof they had not the Advowsons and by consequence the Patentees from the Crown and the Impropriators may claim the same by prescriptions in the Abbots Priors c. and the usage since the dissolution will serve to prove the prescription and usage in the Abbots c. that they held the same so time out of mind As for extra-parochial Tithes Extra-parechial Tithes 7 E. 3. there has been some differing Opinions Sir William Herle was of opinion that they belonged to the Bishop of the Diocess as general Parson of his whole Diocess grounding his opinion as it should seem Seld. hist decim 108. upon the Canon Law But there was never any such Canon received or approved in this Kingdom But it hath been resolved both in Parliament 21 Ass 75. 2 Inst 647⸫ Roll 1.657 o. p. Seld hist decim 365. and by several Judgments at Common Law that all extra-parochial Tithes belong to the King who is a mixt Person and capable of Tithes at the Common Law in pernancy Now having shewed in general who are capable of Tithes in pernancy at this day In Particular Cases to whom Tithes are due and to whom of Common right they belong I shall proceed to shew to whom they are due in some particular Cases If a Parson Lease his glebe-Glebe-Lands Cro. El. 161. Against the Parsons own Lease Portman vers Hind in 31 32 El. B. R. Co. 11.13 b⸪ Dyer 43. p. 22 est Quaere and do not also grant the Tithes thereof the Tenant shall pay the Parson Tithes nay though the Parson Lease his Lands cum omnibus proficuis commoditatibus eidem spectantibus rendering Rent pro omnibus exactionibus demandis quibuscunque Yet notwithstanding the Tenant shall pay the Parson the Tithes arising upon these Lands The like Law it is if an Impropriator Vicar c. make such Lease c. And as the Parson shall have Tithe of his own Tenant Against his Feoffment Co. 1.111 a⸪ Co. 11.13 b⸪ so he shall have of his Feoffee And if a Parson have Lands in the same Parish whereof he is Parson and demises his Tithes he shall pay Tithes to his Farmer If a Parson sow his ground Dyer 43. p. 21. Moyle ver Ewre Hill 1 Jac. B. R. Roll 655. k. 2. Lease Roll 655. k. 1. and then sell the emblements I mean the Corn growing upon the ground the buyer of the Corn shall pay the Tithe of it to the Parson that sowed and sold the Corn. So if a Parson sow his glebe-Glebe-Land and then Lease the Land the Tenant shall pay his Parson Landlord Tithe of this Corn. There has been some opinions Co. 10.88 b⸪ 21 H. 6.30 a. that if the Parishioner sow his Lands and before severance the Parson die that in this case the Parson's Executors Uphaven ver Humfries 40 El. per Poph. Gaudy vers Fenner and not his Successor should have the Tithes And there has been some Opinions that if the Parson sow his Glebe and die before severance that his Executors should not pay Tithes of this Corn. But both these Cases To whom the Tithes in the Vacation belong St. 28. H. 8. c. 11. if they had been Law are put out of doubt by the Stat. of 28 H. 8. which hath given all the Tithes and other profits belonging to the Rectory to the Successor from the death of the last Incumbent which hath taken away all pretence the Executors could have in such Cases But notwithstanding this Statute I take the Law to be clear that the Executor of the Parson shall have the Corn sown by his Testator in his life time Rolls 655. k. 3. as the Executors of other Tenants for life have by the Law It hath been held Whether the Vicar and Parson shall pay to each other Crompt Case P. 7. Car. 1. B. R. Cro. El. 578. that the Vicar upon a general indowment shall not pay Tithes of his Glebe to the Parson or the fruits that arise from the same Quia decimas Ecclesia Ecclesiae reddere non debet So if a Vicar be endowed of all the small Tithes arising within the Parish yet he shall not have the small Tithes arising upon the Glebe-Lands of the Parson Tithes may belong to a Chappel 13 Ass p. 2. Dyer 87. Tithes by prescription may be appendant to an antient Chappel CHAP. III. The third Chapter shews of what things Tithes are due and in what manner the Tithes of Hay and Corn are to be paid Tithes Regularly are to be paid of all things annually arising from the gound Of what things Tithes are to be paid Co. 11.160 F. N. B 53 E. either of themselves or by the Culture and Industry of the Parishioner without any deduction of Averg in their proper kinds as soon as the same may be separated and divided from the nine parts in Sheaves Garbs or Heaps Lind wood c. Quoniam propter verb. non deductis expensis But the manner and form of the payment of Tithes is for the most part governed by the Custom of the place and therefore if by Custom the tenth part How Tithes of Corn are to be paid of Corn or Hay hath been measured forth growing upon the Lands as 't is in some parts of Lincolnshire this manner of Tithing is to be observed for in what manner soever the Tithe hath been paid time out of mind St. 27 II 8. c. 20. 32 II. 8. cap. 7. in such manner it still ought to be paid and therefore where Tithe Corn hath used to be paid time out mind in Sheaves or Garbs bound up it is no good payment to leave it in bonds unbound as I have known some contentious Parishioners do So for the Tithe of Hay How the Tythe of Hay is to be paid if the Parishioner have used to make it into Hay-cocks before they have set forth their Tithes they must do so still Roll 1.644 y. 1256. but where there is no such Custom they may set it forth in Grass-cocks The same order ought to be observed in all other things arising from the Ground as Rape Saffron Apples c. and other fruit But no Tithes are to be paid for the Rakings of Corn Rakings 2 Inst 652⸫ Cro El. 660. More 278. Crok Jac. 42 Yelver 86. Hetley 133. Rolls 1.645 z. 11 12 13. Aftermaths unless the Parishioner fraudulently scatter his Corn to cozen the Parson of his Tithes Neither are Tithes to be paid of the aftermaths of Meadows nor of balks in Corn Fields
manner inform me of them for Humanum est errare and though I may have cause to be ashamed of them yet I will never be ashamed to amend Vale. The Contents The Contents of the several Chapters contained in the first part of this Book Intitled the Parsons Counsellor CHAP. Who may be a Parson 1. sheweth who may or may not be a compleat Parson Vicar c. Chap. How he must proceed in taking a Living 2. sheweth how one that is a Person fitly qualified to be a Parson Vicar c. ought to proceed in the obtaining and accepting of the same Chap. Jure Patronatus 3. shews in what cases 't is necessary for the Bishop to have a jure patronatus and how to proceed in the same and what is the force and effect thereof Chap. Pluralities 4. shews how the Law stood concerning pluralities before the Stat. of 21 H. 8. who are qualified within that Law to have pluralities and how they ought to behave themselves in taking the second Livings so that the first may not be made void Chap. Simony 5. shews what Simony is and who shall be said to be guilty of it and what are the dangers ensuing thereupon Chap. What he is to do at before and after institution and induction 6. shews what one is to do before and at institution and after induction to make himself a compleat Parson Chap. Non-residence 7. shews what is required further of Parsons c. after induction and what non-residence is and the dangers incurred thereby and what matters will excuse the same Chap. 8. shews Dilapidations what shall be said to be dilapidations and how the same is remedied and punished Chap. 9. shews for what cause a Parson Deprivation Vicar c. may be deprived according to the rules of the Common Laws Chap. 10. shews what Leases a Parson Leases Vicar c. may make of his Glebe Tithes and what Farms he may or may not take Farms and within the danger of what other Statutes they may fall Chap. 11. shews Priviledges of the Clergy what Priviledges are allowed to the Clergy in Holy Orders by the Statute and Common Laws of this Realm The Contents of the several Chapters contained in the second part of this Book Intituled the Law of Tithes or Tithing CHAP. 1. shews what Tithes are Quid quot◠plex quo modo debet the several sorts and kinds thereof and how the same become due Chap. 2. shews By whom and to whom due by whom and to whom Tithes ought to be paid Chap. 3. shews What things are Tithable Corn Hay c. of what things Tithes are due to be paid and in what manner the Tithes of Corn Hay c. are to be paid Chap. 4. shews Wood. where and in what cases the Tithes of wood ought to be paid Chap. 5. shews Herbage where Tithes are due for Herbage or Agistment of Cattle and who is to pay the same Chap. Calves Milk Cheese Wool Lambs Pigs c. Seeds Fruit Mast Bees Hony things ferae naturae 6. shews where and in what manner the Tithes of Calves Milk Cheese Wool Lambs Pigs c. are payable Chap. 7. shews in what manner the Tithes of Seeds Fruit Mast Bees c. are to be paid Chap. 8. shews where and in what manner the Tithes of Pigeons Conyes Fish Deer and other Birds and Beasts ferae naturae are Tithable Chap. Mills 9. shews of what nature the Tithes of Mills are and in what cases payable Chap. Personal Tithes 10. Treats of the Tithes of Hawking Hunting Fishing Fowling c. and other personal Tithes Chap. Domestick Birds 11. Treats of the Tithes of Ducks Geese Swans Turkeys and other domestick Fowls and Birds Chap. Of what things Tithes are not payable 12. shews of what things Tithes are not due by the Common Laws of this Realm Chap. Customs 13. shews what force Customs have as well in the form and manner of Tithing as in the discharging the payment thereof and the difference between Custom and Prescription Chap. Interest in the Lands 14. shews what Priviledges the Parson Vicar c. have in the Grounds where the Tithes arise for the drying making and carrying away the same Chap. To what charge subject 15. shews to what charges the Glebe and Tithes are subject and liable Chap. Modus decimandi 16. shews how far Prescription will prevail in the manner of Tithing and in what Cases a modus decimandi will bind the Parson c. Chap. 17. shews How to be destroy'd how a modus decimandi may be destroyed Chap. 18. shews by what conveyances How to be convey'd and by what names Tithes may be granted demised c. and what Demises and Leases made by Parsons Vicars and other Ecclesiasticks c. are good Of Leases Chap. 19. shews Barren Ground what barren Lands are freed from payment of Tithes within the Statute of 2 E. 6. Chap. 20. shews Real Compositions what a Real composition is and in what cases Lands shall be freed from the payment of Tithes thereby Chap. 21. shews Monastery Lands what Monastery Lands are or may be freed from the payment of Tithes Chap. 22. shews what personal Tithes are Personal Tithes and in what cases due and payable Chap. 23. shews what Oblations Offerings Oblations c. are and where due and payable Chap. 24. shews what Mortuaries are Mortuaries and in what cases they are due and payable Chap. 25. shews London how Tithes are to be paid in London and several resolutions upon the Statute made for the payment thereof Chap. 26. shews in what Courts How recovereble and in what manner Tithes may be sued for and in what Cases Prohibitions lye for the staying of Suits for Tithes in the Ecclesiastical Courts and how to proceed therein Prohibitions Note that in my references to printed Books in this Treatise Directions in the Marginal references I for the most part refer to the page and part of the page where the matter is to be found in this manner if the matter be at the upper end of the page I mark it with three pricks thus ⸫ if in the middle thus .. if at the lower part thus ⸪ and where the Book is numbred by Fol. I add the A. or B. side as it happens THE TABLE A ACceptance of Rent where it shall affirm a Lease 117. not by Parson Vicar or Prebend 118. whereby the acceptance of Fealty by a Parson shall bind 118. a Bishop accepts the rent upon a Lease for Life of Tithes 118. upon a Lease for years of Tithes ibid. Admission in what manner to be made 6. not to be done hastily ibid. Atfermathes where Tithe is due of them 155. Agistment vide Herbage Alternagium quid 145. Annates qd vide First-Fruits B. Barren Lands in what Cases free from the payment of Tithes 221. Bees what Tithe is due for them 177. Bishop what time he hath to examine a Clerk 5 and 6. admits a Clerk before the Church becomes litigious 13. not bound by
they may fall HAving undertaken this Work chiefly in favour of the Parsons and Vicars What Leases Clergy-men may make I designed to have medled with no other Orders of the Church but those only but having in many other things been enforced to intermingle the concerns of other Orders with those of the Parsons and Vicars I shall beg the Readers pardon that in this Chapter where I am to treat of the Leases which may be made by Parsons and Vicars I likewise take in all other Orders of the Church with the Colledges the Learning concerning Leases being of use and necessary for all people to know and which I shall in this Chapter put into as good a method as the subject matter will permit And because the Learning of these Leases will depend upon several Statutes it will not be amiss first to examine what Leases or Alienations the several persons we have to do with in this Chapter might have made at Common Law before the Statutes and then to consider where or in what manner the several Statutes have inlarged abridged or restrained their power at Common Law And first At Common Law 1 Inst 45. a⸫ at the Common Law no Bishop Abbot Prior Dean Prebend or other single Corporation could make any Alienation or Lease to bind their Successors without the confirmation of their Chapter Covent c. The first Statute that made any alteration in these cases was the Stat. The enabling Act of 32. H. 8. c. 28. of 32 H. 8. which is comonly called the enabling Statute whereby it is enacted That all Leases then after to be made of any Mannors Lands Tenements or Hereditaments by writing under Hand and Seal for term of years or for term of the life by any Person or Persons of the full age of 21 years having any estate of Inheritance either in Fee-simple or Fee-tail in their own rights or in the right of their Churches c. shall be good and effectual in the Law against the Leasors their Wives Heirs and Successors Provided that Act should not extend to any Lease of any Mannors c. Where any old Lease should be in being unless the same expire be surrendred or ended within one year after the making of such new Lease nor shall extend to any Grant to be made of any Reversion of any Mannors c. nor to any Lease of any Mannors c. which have not most commonly been letten to Farm or occupied by the Farmers thereof by the space of twenty years next before such Lease thereof made nor to any Lease to be made without impeachment of waste or to any Lease to be made above the number of three Lives or twenty years at the most from the day of the making thereof and that upon the making of every such Lease there be reserved yearly during the said Lease due and payable to the said Leasors their Heirs and Successors to whom the reversion shall appertain c. so much yearly Farm or Rent or more as hath most accustomably been yielden and paid for the said Mannors c. so to be letten within twenty years next before the Lease thereof made c. Provided this Act should not extend to give any Liberty or power to any Parson Vicar c. to make any Lease or Grant of any of their Messuages Lands Tithes c. or in any other manner than they should or might have done before the making of the said Act. So now where before the making of this Act no Arch-Bishop Bishop Arch-Deacon Dean or Prebend could have made any Lease to have bound his Successors without the confirmation and consent of their Chapters c. as aforesaid Now by this Act they are enabled to make leases for three Lives or one and twenty years without any confirmation at all with these qualifications What qualities such Leases must have Must be in writing indented 1. Such Lease must be made by writing Indented and not by parol or deed poll 2. Must begin from the making or day of making Old Lease must expire with a year Co. 5.2 b⸫ It must be made to begin from the making or day of the making of such Lease 3. If there be any old Lease in being at the time of the making of such Lease it must expire be surrendred or ended within a Year after the making of such new Lease and such surrender must be absolute and not upon condition 4. Must not be a double Lease Fourthly there must not be a double Lease in being at one and the same time the one for Years and the other for Lives 5. Of what things such Lease may be Co. 5.3 a. More 778⸪ Such Lease must be of Lands manurable or corporeal which are necessary to be letten and out of which a Rent may be reserved and not of things that lie merely in Grant as Fairs Markets Tithes Tolls Franchises Advowsons c. 6. Of Lands usually letten Such Lease must be of Lands c. which have most commonly been letten to Farm or occupied by the Farmers thereof for the more part of twenty years before the making of such Lease So if they have been so let for eleven years within the twenty years next before the making of the new Lease it suffices Co. 6.37 b⸪ and a letting to Farm by Copy of Court-Roll is a sufficient letting to Farm within this Statute to enable the making of such new Lease 7. The accustomed Rent must be reserved There must be reserved upon every such Lease and payable during the continuance thereof to the Leasor his Successors c. so much Farm or Rent as hath most accustomably been yielded and paid for the Land so demised within twenty years next before such Lease made so that it sufficieth Co. 6.37 b⸪ if the yearly Rent or Farm be reserved though Herriots and other casual services be omitted Ibid. so if a greater Rent than formerly be reserved it sufficeth But if Lands usually letten be demised with any other Lands c. though a Rent be reserved that exceeds the value of those Lands and the old Rent Co. 5.5 b⸫ yet such Lease is not good against the Successor within this Law But if the Rent were formerly reserved to be paid at four several days and by the new Lease be reserved to be paid all at one Co. 5.37 b. so the whole Rent be reserved yearly it is well enough 8. Lastly Such Lease must not be without Impeachment of Waste such Lease must not be without impeachment of waste and therefore a Lease to one for life remainder to another for life remainder to a third for life is not good against the Successor though but for three Lives because the remainders make the present Tenants dispunishable for waste for the time But Parsons and Vicars being excepted in this enabling Law are left as they were at the Common Law Farsons and Viears excepted so that they
could make no Lease to bind the Successor without the confirmation of the Bishop and Patron till the Stat. of 13. Eliz. which we shall speak of hereafter And note that it hath been held Co. 8 70. b. Lease for years determinable upon Lives that a Lease for ninety nine years if one two or three Lives so long live hath been held good within this Statute But this Act as appears by what hath been said conferred a new power upon single Corporations but did not in any thing restrain their antient power in making long Leases and Alienations of their very Scites Demesns c. with confirmations as aforesaid which was a great prejudice to the Church in general a means of Dilapidations and a great hindrance of hospitality and therefore In the first Year of Queen Eliz. 1 Eliz. c 19. More 107. Bishops restraned it was enacted that all Gifts Grants Feoffments Fines and other Conveyances and Estates from the first day of that present Parliament to be had made done or suffered by any Arch-Bishop or Bishop of any Honors Castles Mannors Lands Tenements or other Hereditaments being part of the possessions of his Arch-Bishoprick or Bishoprick or united appertaining or belonging to any the same Arch-Bishopricks or Bishopricks to any Person or Persons bodies politick or incorporate other than the Queens Majesty her Heirs and Successors whereby any Estate or Estates should or might pass from the said Arch-Bishops or Bishops or any of them other than for the term of twenty one years or three Lives from any such time as any such Lease Grant or assurance shall begin and whereupon the old accustomed yearly Rent or more shall be reserved and payable yearly during the said term of twenty one years or three Lives shall be utterly void and of no effect to all intents constructions and purposes any Law eustom or usage to the contrary thereof in any wise notwithstanding Note the exception 1 Jacobi c. 3. which gives or rather reserves the power to grant c. to the Queen c. was made void by a Statute made 1 Jac. And note also Leases in other Forms not void but voidable Small wood Sale vers le Evesq Lich. alios P◠31. El. ro 21 65. Co. 3.59 that though this Statute enacts that all Leases made in any other form shall be void and of none effect to all intents and purposes yet it has been adjudged that is only to be intended as against the Successors and that Leases made in other forms shall be good notwithstanding against the party himself that makes them Cro. Jac. 95. and may be affirmed by the Successor by the receipt of the Rent reserved thereupon And note 1 Eliz. A private Act. Co. 4.76 Co. 5.2 b⸫ Cro. El. 874. this is a private Act of Parliament that must in all cases be pleaded and cannot be given in evidence And note also that though this Statute do not restrain demising of any Lands not formerly demised yet it does it by implication for the accustomable Rent must be reserved and unless accustomable let there cannot be an accustomable Rent and Leases within this Statute must have all the restrictions in that of 32. H. 8. before-mentioned And it must be of things manurable Of what things such Leases may be made Co 5.3 a. as hath been said out of which a Rent may be reserved but some are of opinion that Tithes or things not manurable may be demised for twenty one years because an Action of debt will lye upon the Contract More 778. Sir Timothy Tourneur Serjeant le Roy. and so it was adjudged as a learned Serjeant at Law inform'd me in the case of the Precentor of Paul's about 17. Jacobi and that the Successor shall have an Action of debt upon this Contract by the Stat. of 21 H. 8. cap. 28. Upon this Statute and the former it hath been held 1 Inst 45. a⸫ Concurrent Leases that Arch-Bishops and Bishops may with confirmation of the Dean and Chapter make concurrent Leases that is notwithstanding there be a Lease in being for twenty one years they may make a new Lease of the same Lands to another for twenty one years from the making thereof and this being confirmed as aforesaid shall bind the Successor the other things being observed in it And Sir Edward Cook is of opinion 1 Inst 45. a⸫ that like concurrent Leases may be made by Deans Prebends c. with confirmation but some learned men are not satisfied herein because by these concurrent Leases the Successor loses his remedy for his Rent by distress during the former term and the Tenant may be insolvent as to an Action of debt The next restrictive Law is that of 13. 13 El. cap. 10. The Restrictive Law against Leases of Deans Prebends c. Eliz. whereby it is enacted That from thenceforth all Leases Gifts Grants Feoffments Conveyances or Estates to be made had done or suffered by the Masters and Fellows of any Colledge Dean and Chapter of any Cathedral or Collegiate Church Master or Guardian of any Hospital Parson Vicar or any other having a Spiritual or Ecclesiastical Living or any Houses Lands Tithes Tenements or other Hereditaments being any part of the possessions of any such Colledge c. or any wise appertaining or belonging to the same or any of them to any Person or Persons Bodies c. other than for the term of twenty one Years or three Lives from the time as any such Lease or Grant shall be made or granted whereupon the accustomed yearly Rent or more shall be reserved and payable during the said term shall be utterly void c. The penning of this Act Co. 5.14 b⸫ and that of 1 Eliz. beforementioned being in effect the same in substance the construction is the same in effect but in this Act there was no saving of Grants to the King and therefore this Act being for the publick good had restrained other Grants to him not warranted by this Stat. though 1 Jac. cap. 3. had never been made And here note Parsons and Vicars restrained by this Law that as the Parsons and Vicars had not their power any wise inlarged by the Stat. of 32 H. 8. So they had no restriction upon them till this act but from henceforth they are restrained from making any Lease or Grants other then for twenty one years or three Lives with the qualifications above mentioned in the Statutes and such Leases must be confirmed by the Patron and Ordinary because excepted in the inabling Statute of 32 H. 8. before And whereas after the making of this Statute Heads of Colledges Deans Prebends c. might have made concurrent Leases as well as Bishops might there is a Proviso in the Statute of 18 Eliz. 18 Eliz. c. 11. No concurrent Lease but within three years before the former ends That all Leases then after to be made by any the aforesaid Ecclesiastical Spiritual or
Collegiate Persons or others of any of their Ecclesiastical c. Lands c. whereof any former Lease for years is in being and not expired surrendred or ended within three years next after the making of any such new Lease should be utterly void frustrate and of none effect any Law c. By this Proviso it should seem the Parliament was of opinion that concurrent Leases might be made but has by this Proviso so restrained them that they cannot be made but within three years before the Determination of the former But Bishops are conceived not to be comprehended within this Proviso Bishops not in this Act. for though the words are general enough yet the particulars mentioned before the general words being of an inferiour rank the general words cannot draw in the more worthy And there is a Provision in this Act of 18 Eliz. Which Bonds and Covenants shall be void That all Bonds and Covenants then after made for the making or renewing of any Lease contrary to the intent of that Statute or of the Statute of 13 Eliz cap. 10. should be utterly void By a Statute made in the 13th 13 Eliz. c. 20 Leases of Parsons to be void by non-Residence Year of Queen Elizabeth there is an Act of Parliament made whereby it is enacted That no Lease made after the 15th day of May following of any Benefice or Ecclesiastical Promotion with Cure or any part thereof and not being impropriated should endure any longer than while the Leasor should be ordinarily resident and serving the Cure of such Benefice without absence above fourscore days in any one year These wordt within the are repealed by 14 El. c. 11. but that every such Lease so soon as it or any part thereof should come to any possession above forbidden or immediately upon such absence shall cease and be void and the Incumbent so offending shall c. lose one years profit of his said Benefice to be distributed by the Ordinary to the poor of the Parish And by the same Statute Charging Parsonages void it is further enacted That all charging of such Benefices with Cure then after with any pension or with any profit out of the same to be yielded or taken other than Rents reserved upon Leases should be void But where any Person should be qualified to have two Livings Where a Parson may devise and be non-resident he may devise the one of them where he is not ordinarily resident to his Curate only that shall there serve the Cure And such Lease shall endure no longer than during such Curate's residence without absence above fourty days in any one year And by the 14. 14 El. cap. 11. Leases Bonds and Covenants to be void of Eliz. it is enacted That all Leases Bonds Promises and Covenants of and concerning Benefices and Ecclesiastical Livings with Cure to be made by any Curate shall be of no other or better force validity or continuance than if the same had been made by the beneficed person himself that shall demise the same to such Curate And by the same Statute it is enacted Houses Incorporations c. how to he leased That the restrictive Statute of 13 Eliz. cap. 10. before shall not extend to any Grant Assurance or Lease of any houses belonging to any the persons c. in the said Stat. of 13. nor to any grounds to any such houses appertaining c. in any City Burrough Town Corporate or Market Town or the Suburbs of any of them but that all such houses and grounds may be granted demised and assured as they might have been before the making of the said Act so always as such house being not the Capital or dwelling house used for the Habitation of the Parsons c. nor have above ten Acres to the same Provided Not to lease in reversion That no Lease be made by vertue of this Act in reversion nor without reserving the accustomed yearly Rent at least nor for a longer term than for fourty years at most charging the Leasee with repairs and no alienation in Fee unless lands of as good yearly value be settled c. in lieu thereof There is likewise another Proviso in this act that all Bonds Conrracts Bonds Contracts Covenants Promises where to be void Promises and Covenants to be made for the suffering or permitting any person to enjoy any Benefice or Ecclesiastical Promotion with Cure or to take the profits or fruits thereof other than such Bonds and Covenants as shall he made for assurance of any Lease heretofore made shall be of no other force than Leases made by the same person And by another Statute made in the 18th year of the same Queen Eliz. 18 Eliz. c. 11. It is enacted That after complaint made to the Ordinary and Sentence given upon any offence committed by the Incumbent against the Statute of 13 Eliz. cap. 20. whereby he shall or ought to lose a years profit of his Benefice c. That then the Ordinary within two months after such Sentence and request made by the Churchwardens of the Parish where c. or one of them shall grant the Sequestration of such profits to such Inhabitant or Inhabitants within the same Parish c. as to him shall seem meet c. And that upon default of the Ordinary it shall be lawful for every Parishioner Every Parishioner may take advantage c. to retain c. his Tithes and for the Church-wardens to enter upon the Glebe-land Rents and Duties of every such Benenefice to be imployed to the use of the poor c. until such time as Sequestration shall be committed by the Ordinary and then the Church-wardens and Parishioners to accompt to such to whom the Sequestration shall be committed who is to imploy the whole profits according to the act upon pain to forfeit the double value of the profits with-holden to be recovered in the Ecclesiastical Court by the poor of the Parish Having thus briefly for the Readers satisfaction given him a brief Abstract of all the Statutes concerning the Leases of Ecclesiasticks of all kinds I shall briefly sum them all up and proceed to take a view of such other Statutes as the Parsons Vicars c. are in any manner in danger of Upon the whole matter it appears What Leases may be made by Bishops and Arch-bishops that Arch-bishops and Bishops may make Leases for twenty one years or for one two or three Lives with the qualifications before mentioned without any Confirmations at all and they may make concurrent Leases for twnety one years upon Leases for tweny one years from the making with confirmation of the Dean and Chapter with such qualifications as is aforesaid though there be above three years in being of the old Lease at the time of the making the new and where the Bishop has two Chapters there the concurrent Lease must be confirmed by both Chapters unless it be as it
was in the Bishop of Waterford's Case which was thus The Bishop of Waterford had long agoe the Bishoprick of Lismore and the Chapter united to that of Waterford And in all Grants made of the Lands belonging to Lismore that Chapter only confirmed and all Grants made of the Lands antiently belonging to the Bishoprick of Waterford the Chapter of Waterford only confirmed Co. 12.71 a⸪ b⸫ and because the Union was not extant all the Judges held the confirmation of the one in the manner aforesaid was good for it shall be intended that it was so provided for upon the consolidation but otherwise all the Judges held Dyer 282. p. 26. that both Chapters ought to have confirmed But if a Bishop had two Chapters Ibid. and one of them surrender is suspended or dissolved the confirmation of the other suffices There is a Case in Mr. Justice Harpur's Reports M. 14 and 15 El. where the Case is put That a Bishop made a Lease â— die Maii confirmed the third day and sealed the fourth day of May and held good Lease and well confirmed But a Confirmation by the Dean and Chapter after the death of the Bishop comes too late by Catlyne Harâ—ur Rep. m. 14 and 15 El. Southcoate and Windham against Wray But if a Bishop make several concurrent Leases T. 6. El. More 66. and the latter is first confirmed and after the first is confirmed in this Case the first Lease shall be preferred because nothing passes by the Confirmation in point of Interest but a mere Consent If a Bishop make a Grant to the King T. 8. Jac. S. Sir Edw. Dimock's Case Rolls 1.477 h. 7. Crok El. 141. More 253. which is confirmed by the Dean and Chapter before the Grant is inrolled this is well enough But note that a Bishop cannot make a concurrent Lease for life though upon a precedent Lease for Years nor a concurrent Lease for years where there is a Lease for life in being Deans Prebendaries Heads of Colledges Masters of Hospitals and other Ecclesiastical Persons mentioned in the Stat. of 13. Leases by Deans Prebends Colledges c. Eliz. cap. 10. may make Leases for 21 Years or any lesser number of Years or for one two or three Lives in possession according to the qualifications above-mentioned and they may make concurrent Leases as Bishops may with confirmations 18 Eliz. c. â—â— but they must be within three Years of the determination of the former term by expiration surrender or otherwise so that in this point the Bishop has the advantage And though the enabling Stat. of 32 H. 8. gives power to make Leases to hold from the making or day of the making yet the Restrictive Stat. of 13 El. makes them void 13 El. c. 10. if they be not made to hold from the making and not from the day of the making quod nota But the Leases of Bishops and Arch-Bishops are not within that Act but the Act of primo of the Queens which is that all Leases should be void other than for 21 Years or three Lives from the time of the commencement Concurrent Leases and who is to confirm Lases Rolls 1.481 p. q. r. Dyer 221 p. 18.357 p 42. Plow 528. Dyer 61. p. 30. Co. 5 81. a. Note the different pennings And for as much as all concurrent Leases of any Bishop Dean Prebend and Arch-Deacon are to be confirmed it is convenient to let the Reader know who is to confirm the same therefore for the Reader 's satisfaction he is to know that the Leases of Bishops and Arch-Bishops are to be confirmed by the Dean and Chapter or Deans and Chapters if there be several Chapters Grants made by a Prebend are to be confirmed by the Bishop Dean and Chapter the Grants made by Deans are to be confirmed by the Bishop and Chapter the Grants made by the Arch-Deacon by the Bishop Dean and Chapter the Grants of Parsons and Vicars with their Patrons and Ordinaries and Grants by the Incumbent of a Donative by the Patron alone But if a Parson make a Lease which is confirmed by the Bishop only who is Patron without the Dean and Chapter which ought to have joyned it shall bind the Successor during the Lives of the Bishop and Incumbent although the Bishop be translated But Grants by Parsons Vicars Prebends c. before induction or installation c. although confirmed are not binding to the Successor But if the King be Patron of a Prebend then the King and Dean and Chapter and not the Bishop ought to confirm the Grant A Lease made by a Prebendary Parson Vicar c. may be confirmed for part of the term Co. 5.81 ◠⸫ Dyer 52 a.b. Cto El. 472. if it be for Years that is confirm the Land to the Leasee for so many Years of the Term but if the Term be confirmed for part of the Term it were absurd and repugnant and should be good for the whole term as such Lease may be confirmed for part of the term so it may be for part of the Land If a Parson c. make a Grant Rolls 1. 476. f. 1.2 which is confirmed by the Patron and Ordinary and after be deprived yet the Grant is good Rolls 1.479 n. 1. A Husband seized in the right of his Wife of an Advowson the Parson makes a Lease warranted by the Statutes before mentioned and the Bishop and Husband confirm it this shall not bind the right of the Wife but during the Husband's life but that the Successor after his death will avoid it that comes in by the presentation of the Wife Rolls 1.480 n. 2. So if Tenant in tail being Patron confirm the Grant of the Parson with the Bishop this shall not bind the Incumbent of the issue in tail Rolls 1.480 n. 4. If a Usurper present and confirm the Lease of his Incumbent with the Bishop after is removed by quare Impedit this shall not bind the Clerk of the true Patron If the true Patron grant the next avoidance Cro. Car. 582. and then confirm the grant of the Parson who after dies the Incumbent presented by him that had the next avoidance shal avoid the Lease Rolls 1.480 n. 5. Cro. El. 430⸪ his very entry upon the Leasee avoids the Lease for ever If the Parson make a Lease to the Patron which is confirmed by the Bishop this is not good but if the Patron grants it over Co. 5.15 a⸪ it amounts to a confirmation If a Prebend Parson or Vicar make a Lease Rolls 1.481 p. 1. and the Bishop being Patron confirms it without the Dean and Chapter yet this shall bind the Bishop and all the Prebends Parsons c. which he shall Collate If a Parson had made a Lease for above 21 Years before the Statutes of 13. Cro. El. 18. and 14 Eliz. which had been confirmed after this had been good and not within the
restriction of those Laws If a Parson Leases where there is two Patrons 1 Leon. 233. Quaere both ought to confirm as should seem If the Patron and a succeeding Bishop confirm the Lease of the Parson Cro. Car. 38. it is good enough A Prebend made a Lease Dyer 106. p. 24. Quaere reciting that it was with the consent of the Bishop who signed and sealed the Lease to the Leasee but was no party to the Deed quaere if good And having said thus much of confirmations let us see what Leases a Parson or Vicar may make at this day considering all the beforementioned Statutes And first Leases by Parsons and Vicars it is to be observed that at and by the Common Law a Parson or Vicar might have granted or charged his Glebe in Fee-simple with the confirmation of the Patron and Bishop but being excepted out of the inabling Statute of 32 H. 8. 32 H. 8. c. 28. he could never make any Lease or Grant to bind their Successors without such confirmation then by the Statute of 13 Eliz. Parsons and Vicars are restrained 13 El. cap. 10. So that they cannot grant but for 21 Years or three Lives from the making of such Lease and not from the day of the making as is before observed and these Leases and Grants must be with the confirmation of the Patron and Ordinary with all the qualifications expressed in the beginning of this Chapter And it should seem they may make concurrent Leases as Deans Prebends c. may do within three Years of the end of the former Leases It has been a question whether a Parson or Vicar at this day can make any Lease at all to bind his Successor for by the Statute of 13 Eliz. Chap. 20. 13 El. cap. 20. it is enacted that Leases of Parsons Vicars c. that have Cure of Souls shall endure no longer than they shall be ordinarily resident and serve the Cure and that if such Parson c. shall be absent from their Cure above 80 days in one Year that then such Lease shall cease and be void Now when a Parson dies and 80 days incurs and this being a Law for the advancement of Religion and Hospitality to avoid Dilapidations shall have an equitable construction for the preferring of these ends therefore some have held that the death of the Parson Vicar c. after 80 days have incurred from their deaths shall make all their Leases and Grants void though never so sufficiently confirmed and rely very much upon the preamble of the Statute which begins Parson's Leases which is confirmed and dyes That the Livings appointed for Ecclesiastical Ministers may not by corrupt and indirect dealings be transferred to others uses Be it enacied c. But by these Leases it is apparent the profits are converted to other uses c. But others have held the contrary Opinion because such absence is not voluntary but by the Act of God and regularly these cannot be said absent that are not in esse Cro. El. 123. and though Crook report Mott and Hale's Case adjudged in point that their Leases are void by death More 270. Yet More reporting the same case says As to the matter in Law the Judges were divided two against two and that the Judgment was given upon a misrecital of the Statute Bayley vers Murnes T. 24. Car. 2. B R. And this point as I am informed came lately in question in the King's Bench and was adjudged that death doth not avoid such Leases Quaere Ideo quaere inde Dyer 372. p. 2. When Parson's Leases shall be void by non-residence There is a quaere in Dyer whether such Leases shall be void upon 80 days absence ab initio or but from the time of absence by 80 days but it seems to me with some clearness that it shall only be void from 80 days absence and not ab initio For first the words of the Statute are that such Lease shall indure no longer than the Leasor shall be ordinarily resident c. So that till then it is to indure and the Statute closes that upon such absence the term shall cease which it could not do Quaere if had not a being before for a thing cannot cease to be that has not been But another quaere may be startled in this Case upon the reason in Lincolne Colledg Case Whether void against the Parson himself Co. 3.59 b⸪ 60. a⸫ whether such Lease shall be void against the present Incumbent that made it or only against his Successors but it seems to me with some clearness that the intent of the makers of this Act was to make such Lease void against the Leasor himself upon such absence for as before is said the Statute says it shall indure no longer which is a term of limitation and that immediately upon such absence the Lease shall cease and be void and it cannot cease immediately upon the absence and yet be good during the life of the Incumbent But in the Case of Revel vers Hart H. 43. Eliz. B. R. Dyer 372. p. 11. Quaere the Court held the contrary as my Reporter says Ideo quaere If any Parson Vicar c. Dobbins vers Gerrard P. 39. El. B. R. be suspended inhibited or disabled to serve the Cure by the space of 80 days in a Year this shall not make such Lease void for the not serving the Cure must be voluntary And it has been held that if a Parson be resident and do not serve the Cure or serve the Cure and be absent by 80 days that in both these Cases it will make such Lease void Though this Statute upon 80 days absence makes such Lease void made by Parsons and Vicars and says nothing of confirmation yet a confirmation of the Patron and Ordinary in this case seems not to amend the matter for if the Lease be void the confirmation is of no avail At the Common Law Stat. 28. H. 8. cap. 13. Parson leases and resigns if a Parson Vicar c. had made a Lease and resigned the next Incumbent might have entred immediately upon the Leasee but by a Statute made in the 28th Year of H. 8. the Leasee may hold on his term for six years if the Parson that made his Lease so long live and the term were made for so long time but upon such Lease there must be so much Rent reserved within fourty shillings as such Benefice is valued at in the King's Books And by the same Statute if a Parson make a Lease and resigns and dies the Tenant shall hold out his Lease for the Year that was commenced at the time of his death if the Term were to have had so long continuance if the Parson had not died but this seems only of such Lands as are plowed for the succeeding Parson is to have the Parsonage House and Glebe which is not sowed within a
month after he is inducted allowing a reasonable deduction for the Rent reserved upon such Lease But in both Cases the Lessee must pay the reserved Rent to the succeeding Incumbent who is inabled to sue or distrain for the same And such Lease must be in writing under hand and seal and not by parol But it should seem the Statute of 13 El. 13. El. cap. 20. before has made this Law of no effect And having now done with these Statutes as to Leases let us next consider what Bonds Covenants Promises c. 18 El. c. 11. are void within the Statute of 18 Eliz. before-mentioned Covenants Bonds c. Hob. 269⸫ Covenants Bonds which good made for the enjoying houses within Cities Corporations c. are not void within this Law for this Law makes no Bonds Covenants c. void which are not against the intent of this Statute and the Statute of 13 El. cap. 10. but Leases of Houses and Lands in Cities c. by the Stat. of 14 El. c. 11. are exempted out of 13 El. cap. 10. and are not within the Stat. of 18 El. before A Parson made a Bond to resign upon request More 641⸪ and afterwards a Lease to his Patron of part of the Glebe for twenty one years in an Action brought upon this bond the Incumbent pleaded the Statute of 18 Eliz and averred that this Bond was made to secure this Lease and to compel the Incumbent to reside and adjudged a good Plea and an apt averment A Parson made a Lease Cro. El. 489. Noy 66. and in the Lease covenanted not to be absent by the space of 80 days in any one year and gave Bond for the performance and after became non-resident by 80 days and resolved that the Bonds and Covenants were both void A Parson made a Lease Olivers Case M 4. Jacob. B. R. and covenanted neither to do or suffer to be done any matter whereby the Lease should become void and after became non-resident by the space of 80 days in a year and this was held a good Covenant and a Covenant that the Parson should be resident was held not to be against this Law by Popham Tanfield and Clencb against Williams Quaere Leases of Coll. Hospitals Ideo quaere And having now done with Leases to be made by Ecclesiasticks of every kind and having therein exceeded my bounds beyond Parsons and Vicars to all other Ecclesiasticks since the Leases of Colledges and Hospitals come in my way I will give the Reader what satisfaction I can concerning them And as to them It is to be observed that they are not comprehended in the inabling Statute of 32 H. 8. nor in no other Statute that I find till the restrictive Statute of 13 El. 13 El. cap. 10. whereby amongst the rest the Masters and Fellows of Colledges and the Masters and Guardians are disabled to make any Grants or Conveyances of any of their possessions other than for twenty one years or three Livings from the making of such Lease and not from the day of the date or from the date as has been said and this must be of Lands usually demised and the accustomed Rent or more must be reserved with all the other qualifications mentioned in the beginning of this Chapter And by the Statute of 18 Eliz. 18 El. c. 11. they are restrained to make any concurrent Leases till within three years of the end of the former Terms that are in being I shall now shew the Reader what things are demisable within these several Statutes and what Reservations are good and in what cases the Acceptance of Rent by the Successor will make a Lease good that was voidable within these Laws and the several qualifications mentioned in the beginning of this Chapter What Leases shall be good Smalls Case M. 4. Jac. B. R. Former in being One Small being possessed of the mannor of Padington by a Lease from a Bishop for a Term of years the Bishop made a Lease to another for three Lives and before Livery the Tenant surrendred his former Term and it was held that the Surrender was made in due time and the second Lease good A Prebend had usually been leased excepting the Crab-trees and the Prebendary made a new Lease without excepting the Crab-trees Cro. Jac. 458. 3 Bulst 290. More in the new Leases than the old reserving the antient Rent with other due Circumstances and this Lease was held void against the Successor by reason of the adding of the Crab-trees It hath been adjudged Co. 5.15 a⸫ Next Avoidance not demisable That a Bishop Dean c. cannot grant the next avoidance of an Advowson nor any Rent-charge out of the possessions of the Church but the same is void within the restrictive Acts before-mentioned though these cannot be said any of the possessions of their Churches It was also resolved Co. 5.15 a⸫ Charges void that where an Arch-deacon made a Lease for three Lives warranted by the Statutes before mentioned and the Lessee granted a Rent-charge for a hundred years which was confirmed by the Bishop Dean and Chapter that notwithstanding the same was void against the Successor within the Stat. of 13 Eliz. cap. 10. If a Writ of Annuity should be brought against a Parson Co. 5 14.b⸪ c. pretending the same due by Prescription and although the Parson pray in aid of the Patron and Ordinary and upon a Plea pleaded by them the Plaintiff obtains a Verdict and Judgment and all this by practice and fraud to charge the Glebe it is void against the Successor for these Statutes being made for the benefit of the Church advance of Religion and Hospitality and to avoid Dilapidations 19 Ass p. 9. shall always have a favourable Construction It is regularly true Acceptance of Rent where it shall bind that where the Wife issues in tail or Successor accepts the Rent after the death of the husband Tenant in tail or Predecessor upon a void Lease made by the Husband Tenant in tail or Predecessor that such Acceptance will not affirm the Lease but this Rule must be understood of such a Lease as is void ipso facto without entry or any other Ceremony and therefore if a Parson Vicar or Prebend c. make a Lease not warrantable by the Statutes for twenty one years rendring of Rent and dyes Co. 3 65. a. 37 H. 6. 3 4. 11 E. 3. Fitz. Abbot 9. 8 H. 519. here no Acceptance of Rent by the Successor c. will affirm this Lease because the same was void without Entry or other Ceremony but if a Parson Vicar or Prebend make a lease not warrantable within the before mentioned Statutes for life or lives reserving Rent and dye and the Successor before Entry acccept the Rent this Lease shall bind him for the time for this being an Estate of Freehold could not be void before entry But if a Bishop Abbot or Prior Dyer
Canon save a Clause of a Provincial Canon of Robert Winchelsey dated 1305. in these words De Pasturis autem pascuis tam non communibus quam communibus statuimus The Canon quòd decimae fideliter persolvantur hoc per numerum animalium dierum ut expedit Ecclesiae The Tithe of the Herbage or Agistment of Cattle is due where the Owner or Farmer of any Lands Depastures the same with barren Cattle that yield no profit at all to the Parson which is a Tenth Part of the yearly value of the ground so eaten but commonly a twentieth part is accepted but in this as in all other Tithes the Custom and Usage of the place is to be observed If the Owner of the Land agist it with Forrainers Cattle Cro. Car. 237.559 Jones 254. Who shall pay it then the Owner of the Land shall pay the Herbage Tithe but if he let the ground to a Tenant then the Tenant is to pay it But no Herbage Tithe shall be paid for the Agistment of Beasts bred for the Plow and Payle Cro El. 365. 2 Inst 651⸪ Cro. Car. 237. 559. Roll 1.647 a. 9 10. Roll 1.643 R. 4. Bulst 1.171 Poph. 126.142 Wild vers Lampton T. 15. Jac. B. R. per 3 Inst in Houghton Saddle horses Roll 1.646 a. 4 5. Beasts bred for the Plow and Pail and so imployed in the same Parish nor for Beasts fed and spent in the Owners house in the same Parish So if a man eat a ground with his own Saddle Horses he shall pay no Tithes for the same but if an Inn-keeper eat up a ground with Guest horses he shall pay Tithes for the herbage of them If a Forrainer that lives in another Parish depastures a ground with Cattle bred for the Plow and Pail to be imployed in a Forrain Parish he shall pay Tithe for the agistment of such Cattle And there is no difference between the Case of a Parishioner and a Forrainer where the ground is eaten with unprofitable Cattle and not bred for the plow and pail Saddle horses and fatting Cattle as aforesaid to be spent in the Parishioners house but that the Parishioner as well as the stranger shall pay Tithe but for the breeding of Cattle for the plow and pail c. conduces to the profit of the Parson in his other Tithes No Tithe is due to the Parson for the herbage of beasts ferae naturae as Deer 2 Inst 651⸪ Herbage of Beast ferae naturae F.N.B. 53. g. Conys c. without a special Custom Fitzherbert in his natura brevium seems to be of opinion that there is no Tithe due for the herbage or agistment of Cattle and adds this reason because they pay Tithe of the Cattle there depastured which proves his meaning to be that there is no Tithe herbage due where the ground is depastured with profitable Cattle If a ground be eaten with profitable Cattle as milch Cows Yews Pasture eaten with mixt Cattle Lambs and Cattle bred for plow and pail c. and also with barren and unprofitable Cattle and the profitable Cattle exceed in number it should seem the greater part being profitable should free the rest Roll 1641. q. 20. Quaere tamen inde quaere No Tithe Herbage is to be paid of the Agistment of Oxen Roll 1.646 a. 6 7. Beasts of the Flow. Horses or Beasts of the plow imployed and used in the same Parish for they are profitable Cattle to the Parson If a ground be eaten with barren and unprofitable Cattel Ground eaten with mixt Cattle and profitable Cattel together and the profitable Cattel are the less in number I conceive there 's no doubt but the Land holder must pay Tithe in kind for the profitable Cattel and Tithe of the herbage for the rest and not herbage for the whole If there be a Custom in a Country to sow Tares Yares and Vetches eaten green Roll 1.646 a. 6 7 Vetches c. and to eat them green upon the ground before they are ripe with Horses and Beasts of the Plow no Tithes shall be paid for the same If a Stranger or a Parishioner buy barren Cattel Roll 1.647 a. 8. and 16. Of what Cattel herbage is due and depasture and feed them for sale he shall pay Tithe for the herbage of them If a Man buy Oxen Roll 1.647 a. 13. Steers or Horses and depastures and after sells them and doth not without fraud imploy them in the Plow he shall pay Tithes for their agistment and if he work them fraudulently to defeat the Parson of his Tithes it will not serve his turn So if a man buys or rears young Cattel Roll 1.647 a. 15. and depastures them in a Parish and do not imploy them there for the Plow or Pail without fraud as hath been said he shall pay Tithe for the herbage of them But for the Grass of Fallows no Herbage shall be paid P. 7. Jac. C.B. Parsons Law because it is for the bettering of the Parson's Tithes in the Year following CHAP. VI. The Sixth Chapter shews where and in what manner the Tithes of Calves Milk Cheese Wool Lambs Piggs c. are payable IN the payment of these sort of Tithes I do not observe that the Common Law crosses the Canon in any thing material How the Tithes of Calves milk wool Lambs c. are to be paid and therefore I shall recite you the Provincial Canon made by Robert Winchelsey And his Clergy Anno Dom. 1305. which is to this effect De nutrimentis autem animalium The Canon Lindwood c. Quoniam propter scilicet de agnis statuimus quòd pro sex agnis infra sex oboli dentur pro decima si septem sint agni in numero septimus Agnus detur pro decima Rectori ita tamen quòd Rector Ecclesiae qui septimum Agnum recipit tres obolos in recompensationem solvat parochiano a quo decimam recipit Qui octavum recepit det denarium Qui vero nonum det obolum parochiano vel expectet Rector usque ad alium annum donec plenariè decimum agnum possit recipere si maluerit qui ita expeciat semper exigat secundum Agnum meliorem vel tertium ad minus de agnis secundi Anni Et hoc pro expectatione primi anni Et ita intelligendum est de decima lanae Sed si oves alibi in Hyeme alibi in Aestate nutriuntur dividenda est decima similiter si quis medio tempore emerit vel vendiderit oves certum sit à qua parochia illae oves venerint earundem dividenda est decima sicut de re quae sequitur duo domicilia si autem incertum fuerit habeat illa Ecclesia totam decimam infra cujus limites tempore tonsionis inveniuntur De lacte vero volumus quod decima solvatur dum durat videlicet de caseo tempore suo de lacte autumno
which are still enjoyed by the Clergy but also of the impropriations as I take it Synodals is another charge upon the Parsons Synodals Vicars c. and is likewise paid to the Arch-Deacon not by any certain rule but by some antient Taxation so that some pay more and some less I must confess I cannot find how this payment first became due but by the name it should seem to be a contribution to the Arch-Deacon's charge in the Synods they being antiently elected by the Deacons themselves as their representative But it should seem Dugdales Warw. 126 b⸫ that the Arch-Deacons claim these Synodals for their Easter visitation and the Bishops have laid some claim to them but as my Author conceives without any just reason the Arch-Deacon and his Officers performing the Labour and undergoing the Charge All these charges the secular Clergy undergo which takes away a considerable part of their Revenues CHAP. XVI The Sixteenth Chapt. shews how far prescription will prevail in the manner of Tithing and in what cases the Parson Vicar c. shall be bound by a modus decimandi THe Canonists and those that are of opinion that Tithes are due jure divino The force of a modus decimandi in Tithing Lind wood cap. Quoniam propter verbo redemptionem decry all Customs and Prescriptions that either diminish the tenth part or acquit the whole for in truth no Custom or Prescription can be good which is positively against the Law of God And that is the reason why it is frequently said in our Law Books Co. select cases 46⸪ that the Ecclesiastical Courts will not allow a modus decimandi But the Common Lawyers allow Tithes to be due Common Law and Canon differ Concerning Customs c. Jure Divino secundum quid that is quoad sustentationem cleri but not quoad decimam aut aliquam aliam certam partem and therefore they allow of a manner of Tithing which diminisheth the quantum or a Custom of not Tithing for this or that particular thing so there be a sufficient maintainance for the Clergy besides and of the same opinion are some of the most eminent School Men Tho Aq. Sum. 2. 2ae and in this Tho. Aq. Sum. 2. 2ae q. 87.1.0 as in all other things where the Common Law and Canon or Ecclesiastical Laws differ the Common Law is to be preferred The difference between Custom and Prescription I have shewed before in the thirteenth Chapter The difference between Custom and Prescription But before I proceed upon this Subject I must beg leave of the Reader to say something more in vindication of the Common Law The Common Law vindicated which in this point I conceive does not differ materially from the Ecclesiastical and civil Law for if I do not very much mistake the Canonists and Civilians Lindwood c. Quoniam propter verb. Redemptionem they do at this day allow of real compositions in discharge of Tithes that is where the Parson Patron and Ordinary do by deed agree to accept of a certain sum of Money yearly or so much Land or other profit though not to the full yearly value in discharge of the Tithes growing and arising upon such Lands as they agree for now what is this but a modus decimandi and a prescription to maintain this modus is no more than a supply to prove a real composition which was made beyond all memory and lost and it were against all Justice and reason that if a Man should be plundred of or lose his Deeds that he should thereby lose his Estate And it must necessarily be intended Seld. hist Decim 408. that every modus decimandi that has continued time out of mind must have a reasonable and legal commencement and must be intended that it began by a real composition A Rent charge cannot be created but by Deed and yet it may be claimed by prescription supposing a Deed preceded the like Law is of all Canons c. And St. German in the Doctor and Student puts this case Lib. 2. cap. 55. f. 67. a⸪ that if it were ordained for a Law that all payment of Tithes from thenceforth should cease and that every Curate should have a certain Portion of Land assigned to him or a Rent or Annuity which should be sufficient for his maintainance and those that served under him or that every Householder should give a certain sum to that use that this were a good Law and grounded his opinion upon this saying of Doctor Gerson a great Doctor in Divinity Solutio decimarum sacerdotibus est de Jure Divino quatenus inde sustententur sed quoad tam hanc vel illam assignare aut alios in alios redditus commutare positivi juris existit And this commuting Tithes into annual Salaries is frequently practised in the Protestant Churches beyond Sea as I have been informed And these prescriptions de modo decimandi Prescriptions are confirmed by Parliament are not only allowed by the antient Common Laws of this Realm but confirmed by Act of Parliament For by the Stat. Stat. 2. E. 6. cap. 13. of 2 E. 6. it is enacted that no Person shall be sued or otherwise compelled to yield give or pay any manner of Tithes for any Mannors Lands Tenements c. which by the Laws and Statutes of this Realm or by any Priviledg or Prescription are not chargeable with the payment of any such Tithes or that be discharged by any composition real and having said thus much in vindication of the Common Law I shall proceed to shew what Prescriptions and Customs de modo decimandi vel de non decimando are good and allowed at Common Law First who may not prescribe in non decimando Seld. Hist decin 409⸫ Rolls 1.653 H. no Lay-Man can prescribe in non decimando that is to be discharged absolutely of the payment of Tithes and to pay nothing in lieu thereof unless he begin his prescription in a Religious or Ecclesiastical Person and derive a Title to it by Act of Parliament But all Spiritual and Religious Persons who may prescribe in non decimando as Bishops Abbots Priors Deans Prebends Parsons Vicars c. may prescribe in non decimando and their Farmers may make use of such prescriptions to free themselves from the payment of Tithes And hence it is that the Parson or Vicar of one Parish that hath part of his Glebe lying in another Parish may prescribe in non decimando for it Rols 1.653 H. 3. that is as hath been said to be free from the payment of any manner of Tithe for it But Church Wardens who have Land belonging to their Churches cannot prescribe in non decimando because they are neither Religious nor Spiritual Persons Rolls 1.653 H. 6. Church Wardens not It hath been held that a Bishop may prescribe that he and his Tenants for Life Rolls 1.653 H. 7. A
c. have had an Acre or piece of Meadow ground time out of mind in discharge of all the Tithe Hay arising upon such a Farm this shall only discharge the Hay upon the antient Meadowing and not the Hay of Ground converted from Pasture or Tillage to Meadowing But if one have a modus for all the demesn of his Mannor Roll 1.651 E. 1. 2 Inst 490. and erect a new Mill this shall be comprehended within the modus and shall not pay any Tithe But if a Man have a modus for all the Hay and Grass upon twenty Acres of Land Roll 1.651 E. 2. and converts the same to Tillage or into a Hop Yard he shall pay Tithes thereof Where a modus to the Vicar shall discharge against the Parson and è converso More 907. Cokes Select Cases 45.1 Cro. El. 137. Hutton 57 m. 10. Jac. r. 641. Modus to pay a rate to the Vicar for Tithes due to the Parson So it appears a great difference where the modus goes to all manner of Tithes in general and where to particular Tithes Where a modus is alledged to pay a certain Summ to the Vicar in discharge of any Tithes due the Parson this being a dispute of the right between two Clergy Men ought to be determined in the Ecclesiastical Court but it seems to be a good modus as to the Parishioner and so it was held in the case of Pool and Reynels in the Kings Bench. Mich. 10. Jac. But Mr. Ware reports a case to be adjudged H. 18. Jac. B. R. that it was no good modus and that Henden vouched one Bankes Case to be adjudged accordingly Ideo quaere But it seems to me a good modus for this being Originally a modus between the Parson and Parishioner the Vicar might be indowed with the modus but this must be intended also where the indowment is time out of mind and not to be produced or where the Vicar hath it specially in his indowment But to pay a rate to the Parish Clerk is no good discharge of Tithes against the Parson or Vicar Leonard 1.94 Croke El. 71. Bulst 1.220 Wintel vers Child m. 14. Jac. B. R. unless the Parson be bound by Custom to find the Parish Clerk nor is a modus to the Parson a good discharge against the Vicar And so having shewed what Prescriptions de modo decimandi and de non decimando are good and allowable at the Common Law in the next place I shall shew how a modus decimandi or Prescription may be destroyed or lost CHAP. XVII The Seventeenth Chapter shews how a modus decimandi or Prescription may be lost or destroyed IF a Man have a modus for a Mill which is removed of necessity to a new place because the water invito has changed its course Roll 1.652 f. 2. What matter will destroy a Modus here though the Mill be removed the modus remains But if the Owner of such a Mill shall of his own accord and without any cause of necessity remove his Mill to a new place in this case he shall lose his modus If a Man have a modus decimandi for two Messuages and two Mills to pay twenty shillings per annum Roll 1.652 f. 2. and he erects a new Mill in one of the Messuages the modus shall not extend to free the new Mill. There have been Opinions that Unity of Possession Stepney vers Warren P. 41. El. B. R. that is to have fee-simple in the Rectory and likewise in the Land to which the modus is annexed should destroy a Prescription or modus decimandi But if a Man have four Water Corn Mills for which he hath time out of mind paid a modus of four shillings per annum Sir John Hollys Case T. 9. Jac. B. R. and pulls down one of them yet the modus remains and he shall still pay the four shillings CHAP. XVIII The Eighteenth Chapter shews by what Conveyances and by what names Tithes may be granted conveyed demised c. and what Demises Parsons and Vicars may make of their Glebe and Tithes REgularly Tithes at this day cannot be granted or demised but by Deed in Writing under Hand and Seal Stiles 261. By what Conveyances Tithes will pass Hungerford vers Haml. T. 36. El. ro 506. per Owen Cro. El. 814. or by matter of a higher nature as Fines Recoveries c. But in such cases as they are become Lay-see they may be devised by will in writing as Lands may but they cannot be granted by Copy of Court Roll because they cannot be parcel of a Mannor But Tithes cannot be conveyed or demised by any paroll agreement Brettyman vers Woodward P. 31. Eliz. 10.17 B. R. B. Noy 89. Hetley 3. Hughes 373. Bellamy vers Bapthorp in 2 Car. 10.179 B. R. Co. 4.35 a⸪ unless it be to the Owner of the Land for one year by way of retainer Tithes impropriate are at this day by the several Statutes of dissolution become Lay-fee and will pass by the name of Hereditaments but by the grant of a portion of Tithes the Tithes belonging to a Rectory will not pass Tithes impropriate may be past from one to another by Deeds of Bargain and Sale St. 32 H. 8. cap. 7. inrolled according to the Statute of 27 H. 8. they may be transferred in use upon good consideration by Deeds of Covenant to stand seized or by Fines or common Recoveries and may be sued for by Writs of Assise of novel disseisine Writs of Entry Writs of Right or other real Actions or by ejectione firmae But upon a Lease for Lives of Tithes no Rent can be reserved to be recovered at or by the Common Law for no Action of debt will lie or distress can be taken ubi non est remedium ibi non est jus But upon a demise of Tithes for Years a Rent may be reserved because an Action of debt will lye upon such Lease upon the Contract CHAP. XIX The Nineteenth Chapter shews what barren Lands are free from the payment of Tithes within the Statute of 2 E. 6. cap. 13. IN the Statute of 2 E. 6. 2 E. 6. cap. 13. there is a Proviso to this effect That all such barren Heath or wast Ground other than such as be discharged from the payment of Tithes by Act of Parliament which before this time have lain barren and paid no Tithes by reason of the same barrenness and now be or hereafter shall be improved and converted into arable ground or meadow shall from henceforth after the end and term of seven years next after such Improvement fully ended and determined pay Tithe of Corn and Hay growing upon the same any thing in this Act to the contrary in any wise notwithstanding This Clause was added for the Incouragement of Tillage and Improvement of lands by water or otherwise and therefore though here be no words of discharge of the payment of Tithes
which is the time of the limitation of all Prescriptions at the Common Law 2 Inst 653. which rejects the practice of the Civil Law which as should seem allows the limitation of a prescription or custom to forty years It may reasonably be demanded how this manner of discharge can be made out at this day since there is now no Person living that can prove how the Abbots held and enjoyed their Lands to which I answer that what was done before the dissolution of Abbeys must now be proved by what has been done since for if Monastery Lands have been held all the time of memory since the dissolution freed from the payment of Tithes it shall be intended that they were so held before and therefore they have not paid or been questioned since The fourth sort of discharge is by order Discharge by Order and this discharge also for the most part depends upon Popes Bulls or grants who at pleasure granted exemption to what orders they pleased About the Year of our Lord 1150. 2 Inst 652⸪ Seld. Hist decim 120. the most Religious orders then in being were discharged of the payment of Tithes but about that time Pope Adrian the fourth reduced them to Cistertians Hospitaliers and Templers and about the Year 1215. Seld. de decim 406. Pope Innocent the third added the Praemonstratenses But the Priviledges granted to these orders extended only to the Lands Dyer 277 278. these orders held in their own manurance and not to any which was held by their Tenants or Farmers But about the beginning of the Raign of H. 4. the Cistertians attempted to have enlarged their priviledg to their Tenants and Farmers which tending to the ruine of many poor Parsons and Vicars that had cure of Souls was complained of in a Parliament held in the second Year of H. 4. whereupon it was enacted that not only the Cistertians but all other orders that put any Bulls in execution for the discharging any of their Lands from the payment of Tithes in the Lands of their Tenants and Farmers shall incur a Premunire that is forfeit all their Goods and the profits of their Lands during life and be likewise imprisoned during the offenders life which gave such a check to that proceeding that I do not find any thing of that nature after attempted The Templers after in the Councel of Vienna The Templers 2 Inst 432⸫ which was held in the Year of our Lord 1311. and in the fourth Year of E. 2. were condemned for Heresy And all their possessions by Act of Parliament made in the seventeenth Year of the same King were transferred to the Hospitaliers or Knights of St. Stat. 17. E. 2. c. John of Jerusalem who enjoyed them till the thirty second Year of the Reign of King H. 8. at which time by Act of Parliament they were setled upon the Crown 32 H. 8. c. 24. But where it is said in Kelway that the Templers were condemned of heresie in the eight Year E. 2. and their Lands given the same year to the Hospitaliers it is a great error for it is clear that the Council of Vienna was held in the fourth year of that King and chiefly called against the Templers and it is as clear that their Lands were not here in England setled upon the Hospitaliers till the seventeenth of the same King And though the Lands of the lesser Monasteries be not within the benefit of the Statute of 31 H. 8. Where the lesser Abbeys may be freed of Tithes to be freed of the payment of Tithes yet they ought to enjoy all such priviledges as are annext to the Land and therefore such Lands in whose hands soever they come shall be freed of the payment of Tithes yet they ought to enjoy all such priviledges as are annext to the Land and therefore such Lands in whose hands soever they come shall be freed of the payment of Tithes by real compositions and prescriptions de modo decimandi Jones 3. but not by prescriptions de non decimando unity of possession order or Bulls of Popes but in all the cases the Parsons and Vicars have the advantage by the dissolution of all those Abbies that were dissolved by the Statute of twenty seven H. 8. and the Parsons and Vicars shall in such case be restored to their Tithes again which in all Justice they ought in all other cases if the Parliament had not seen reason to the contrary The lesser Monasteries that is which were under 200 l. per annum of the orders of Cistertians and Praemonstratenses were as has been said dissolved by the Statute of 27 H. 8. have lost the priviledg of being discharged of the payment of Tithes unless they were continued as the Abbey of Crouden was but those Monasteries of those orders that came to the Crown by the Statute of 31. H. 8. retain the priviledg of those orders in not paying Tithes but this is to be understood only for such time as the Owners hold them in their own manurance for if they let them out to Tenants they shall have no more priviledg than the Tenants of those orders of the Cistertians and Praemonstratenses had which was none at all But note Jones 2 3 c. Cro. Jac 6â—7 Hob. 6â—8 Lands of the lesser Abbeys granted to the bieger not freed that if the King after the dissolution of the lesser Monasteries which had been of any of the orders that were discharged of the payment of Tithes had granted any of their Lands to any of the greater Monasteries which were not dissolved till the Statute of 31 H. 8. yet those shall not retain the priviledges the Abbots had at the time of the former dissolution the right immediately reverting by the dissolution to the Parsons and Vicars to whom the Tithes of right did belong the greater Abbyes could not hold them legally discharged at the time of the second dissolution So that there is a manifest difference between this and the case of Walkelate and Wilshaw before remembred for in that case the Monastery was continued and not dissolved till the Statute of 31 H. 8. And it is to be observed that no Lands acquired by any of the Monasteries of those orders which were so freed from payment of Tithes after the Councel of Lateran Lands purchased after the Friviledges granted not freed which was in the Year of our Lord 1215. and by consequence none that were founded after that Councel are discharged of the payment of Tithes either in their own Seldens hist of Tithes 121. or their Tenants hands for by that Councel the Priviledg was limited to such Lands as these orders had at the time of that Councel And although any Abbey Lands of the great Abbeys which were of the Cistertian and Praemonstratensian orders were in the hands of Tenants for years at the time of the dissolution Dyer 277 b⸪ p. 60. Cro. Jac. 559. yet the King and
brought the cause to issue upon nil debet or non culpa we will shew in the next place what will be good and material evidence as well for the Plaintiff as Defendant First What Evidence is necessary in this Action ex parte quere If the Plaintiff be a Parson Vicar or other Ecclesiastick and have not been some considerable time in possession of his Living in which I have not observed any constant rule amongst the Judges in their practice but ten years quiet possession for the most part is allowed by the Judges for an evidence of the Plaintiffs Title unless some material objection be made against it to draw it into question but if the Plaintiff have been but for some short time in possession or the possession litigious then the Judges usually put the Plaintiff to prove his institution and induction and now he must prove that he was in Episcopal Orders at the time of his institution otherwise his institution is void by the late Act of Uniformity he must produce a Certificate under the Hand and Seal of the Bishop c. that instituted him that he subscribed the declaration mentioned in the Act of Uniformity and must prove he subscribed the same in the presence of the Bishop or c. and he must prove that within two Months after he was inducted upon some Sunday or Lords day during Divine Service he read the thirty nine Articles of Religion in the Parish Church into which he was inducted and that he did declare his unfeigned assent and consent to all things therein contained and he must likewise prove that within two Months after actual possession of his Living he read Morning and Evening Prayer in his Church upon some Lords day and openly and publickly before the congregation declared his assent and consent to the use of all things therein contained and prescribed in these words I A. B. do here declare my unfeigned assent and consent to all and every thing contaiend and prescribed in and by the Book Intitled the Book of Common Prayer and Administration of the Sacraments and other Rites and Ceremonies of the Church according to the use of the Church of England together with the Psalter or Psalms of David pointed as they are to be sung or said in Churches and the form or manner of making or Ordaining and Consecrating Bishops Priests and Deacons The Parson Vicar c. having thus made himself a Title must proceed to prove the taking and carrying away the Corn Hay c. and the value and if need be that the Land lies within the Parish c. but this the Judges put them to prove first of all commonly But if the Plaintiff be a Farmer or Patentee under the Crown he must prove his Title but if he have been any considerable time in possession and the Title not controverted the Judges seldom put the Plaintiff to shew any more Title but his bare possession and enjoyment and that others pay him Tithes And so having shewed what is necessary the Plaintiff should be prepared to prove I will proceed to shew what defence the Defendant may make The Defendant upon the general issue of not guilty Ex Parte Defendentis Brown 1. 34. c. may prove that he duly set forth his Tithes but if he afterwards carried them away it will not serve his turn so if he sell his Corn privately to another and after he has sold it privately 2 Inst 649⸪ cuts and carries it away the Action lies against the first Owner the same Law is where the Owner of the land privately sells his Corn to another who privately cuts and carries it away And the Defendant may prove that another has a better Title to whom he has paid his Tithes or compounded with him for them Or he may prove that the Parson came in by Simony or any other matter that makes his presentation institution or induction void or any other defect in not reading the Articles c. Or he may prove that he set forth his Tithes and a Stranger carried them away or may give in evidence a Lease or Grant from the Plaintiff himself or any other to whom he can make a good Title but such Leases and Grants must be in writing unless for one year only to the Owner of the Land which hath been held good by way of retainer The Jury if they find for the Plaintiff Verdict are to find how much of the debt demanded by the declaration is due to the Plaintiff which they are to do by trebling the value of the Tithe subtracted wherein they are usually assisted by the Court. The judgment is always given for the debt found by the Jury without costs Judgment because this Action is grounded upon a penal Law where no Action lay at Common Law neither shall the Defendant have any costs if the Verdict pass for him but if judgment be given for the Plaintiff in an Action brought upon this Statute by nihil dicit non sum informatus Cro. Jac. 361 362. or demurrer the Plaintiff shall have Judgment for the whole debt demanded by his declaration And if an Action upon this Statute be brought against two or more and Verdict only pass against one or part of the Defendants the Plaintiff shall have Judgment against those against whom the Verdict passes Stiles 317 318. though the others be acquitted quod nota Note that this Statute as to the treble value and double value extends only to Predial Tithes Nota. and not to Personal mixt or other Church duties The Exchequer likewise by English bill holds plea for the single value Jurisdiction of the Exchequer for subtraction of all manner of Tithes Oblations c. of which great use hath been made since the late Wars and there they decree the single value with costs and the future payment which is of great advantage to the Plaintiffs and these suits are not interrupted with prohibitions but these suits are often very costly too for if a modus decimandi or the bounds of the Parish come in question and the proof not very clear they are frequently sent to Trials at Law which gives delay and increases the charges very much this Jurisdiction I take it is much fortified since Tenths and first-fruits were annexed to the Crown but Suits of this nature were early brought in this Court before the War however there are some antient Books prove that this Court on the Law side has assumed Jurisdiction of Tithes 38 Ass p. 20. 44 E. 3.43 44. but the reporter reports it with a quod mirum Lastly 50 E. 3.20 2 H. 4.15 20 H. 6.17 1 H. 6.5 2 E. 4 5. 44 Ass p. 25. it is evident in our Books of Law that the rights of Tithes were frequently determined at Common Law in Actions of Trespass for taking away of Tithes unless both parties were Clergy-men and sometimes Assises have been brought at Common Law for Tithes