whatsoever chargeable upon them respectively until such time as they shall receive the Profits arising from the same as formerly And no Process to issue out of any Court whatsoever against the persons aforesaid for their Non-payment of First-Fruits Tenths Pensions or any other the dues aforesaid c. The said Parsons are likewise by the said Act indemnified for not Reading the 39 Articles or not doing other thing enjoyned by Law until such time as the said Churches be Re-edified or made fit for Publick Worship The said Parsons and Vicars are likewise impower'd to lett Leases of their Glebe-Lands with the consent of the Patron and Ordinary for any Term not exceeding 40 years and at such yearly Rents without Fine as can be obtain'd for the same And that no Lapses incurred upon any Non-Presentation in due time of any of the Patrons of the said Livings since the said Fire shall any waies prejudice or make void the Presentations that the said Patrons have since made whereupon any Incumbent is since Instituted and Inducted any Law or Statute to the contrary in any wise notwithstanding By the Third Canon of that great Assembly of 180 Bishops at Rome in the Church of Constantiniana An. 1180. in the Twentieth year of Pope Alexander the Third it was Ordained That no man should be admitted to the Office of a Bishop under the age of Thirty years nor that any should be admitted to be a Deacon or Archdeacon or to have the government of a Parish until he were of the full age of Five and twenty years The next Chapter speaks of Vicars Vicarages and Benefices Gervasius a Monk of Canterbury in his Chronicle de tempore H. 2. under whom a Synod was convened at Westminster An. 1175. by Richard then Archbishop of Canterbury acquaints us with an Ancient Canon made at that Synod whereby Vicars are restrained from behaving themselves proudly against their Parsons a piece of Spiritual Insolence not grown quite out of practice to this day It is the Eleventh Canon the words are Illud etiam de Vicariis qui personis fide juramento obligati sunt duximus statuendum quod si fide vel Sacramenti religione contempta Personatum sibi falso assumentes contra Personas se erexerint si super hoc in jure vel confessi vel convicti fuerint de caetero in eodem episcopatu ad Officii sui Executionem non admittaâ—tur In all Appropriations of Churches there ever was and ought to be an establishment of sufficient Maintenance for the Vicar and his Successors pro sustentatione sua congrua made by the Bishop of the Diocess by and with the consent of such as to whom such Churches are Appropriated And this though for the most part consisting only of the Minute Tithes yet hath the denomination of a Benefice or Ecclesiastical Benefice as properly as any Rectory or Parsonage whatever for they are perpetual Vicars in whom the Vicarage or Benefice is as in Fee though not properly in demesne as in Fee as Temporal Inheritances are and therefore the word Beneficium with the Feudists and Canonists is the same as Feodum or Feudum with our Common Lawyers yet sometimes it is opposed to that which we call Allodium or what a man hath in his own Name and in his own proper Right and absolutely for that which is here understood by Beneficium may be possess'd nomine alieno certis sub Legibus which may not properly be said of Allodium that being properly what a man doth possess nomine proprio absolute An instance of this you have in the Grant made by King William Rufus to Anselme Archbishop of Canterbury Praecepit Rex ut investiretur Anselmus omnibus ad Archiepiscopatum pertinentibus atque ut Civitas Cantuariae quam Lanfrancus suo tempore in Beneficio à Rege tenebat Abbatia Sancti Albani quam non solum Lanfrancus sed Antecessores ejus habuisse noscuntur in Allodium Ecclesiae Christi Cantuariensis pro redemptione animae suae perpetuo jure transirent By the Ninth Canon of the Lateran Council under Pope Alexander It is prohibited to grant or promise any Ecclesiastical Benefices before they are actually void the reason of which Canon was to prevent the desire of the death of the present Incumbent by him who by such promise or grant had an expectation to succeed him in the Benefice In the next place follows the Chapter of Advowsons which the Canon Law calls Jus Patronatus being a power or right of Presenting one to be Instituted to a vacant Ecclesiastical Benefice I say Vacant because if the Benefice be not then void the Presentation will be void in Law the reason is because were it otherwise occasion might thereby be given the Presented to desire or wish for the Incumbents death cap. Nulla de Concess Praebend And although what we call Advowson the Canon Law calls Jus Patronatus yet every Jus Patronatus is not an Advowson according to the Civil Law for the Jus Patronatus hath a twofold acceptation in the Law the one That Right which Lords or Patrons have on their Bondmen made Free by Manumission and so it is taken in ff de jur Patron but this is not to our present purpose the other That Right of Presentation to an Ecclesiastical Benefice which belongs to Patrons of Benefices and Churches which in the Law is likewise called Jus Advocationis as appears by cap. Quia Clerici de Jur. Patronat And this is that Advowson here intended This Right of Advowsons or Jus Patronatus the Law doth also distinguish into Ecclesiastical and Laical Touching the Ecclesiastical vid. Covarru in qq pract c. 36. nâ— 2. which is so called not because an Ecclesiastick doth enjoy or possess it for so he may also possess a Laick Patronage but because it belongs to one for that he hath founded built or endowed the Church Ex bonis Ecclesiasticis or by reason of some Rectory of a Church or some Ecclesiastical Dignity As when a Benefice is erected with money gotten ex bonis Ecclesiasticis in that case he hath Jus Patronatus Ecclesiastici or Patronatum Ecclesiasticum And so it is if one hath the Advowson or right of Presentation on because he is a Bishop a Dean or the like this also is Jus Patronatus Ecclesiastici so the Gloss in Clem. 2. de jur Patronat alii The other kind of Advowsons or Jus Patronatus Laici is so called for that it belongs to one because he hath either founded built or endowed some Church or erected some Benefice Ex bonis patrimonialibus Lessius de Justic jure cap. 34. de Benefic Dub. 4. In pursuance of that distinction it is that the Canon Law determines in a different manner in respect of Ecclesiastick and Laick Patronages touching the time limited for Presentation to a vacant Benefice for according to that Law if the Patronage be Laick the Patron is obliged to
The Statute of 13 El. cap. 12. Ordained That the Articles agreed by the Archbishop and Bishops of both Provinces and all the Clergy in the Convocation held at London c. shall be read by the Incumbent otherwise he is ipso facto deprived Or admitting all these Requisites have had their due performance so that he is a compleat Parson to all intents and purposes of Law whatever yet he may not under pretence of this or that Custome extend the Lines of his Parsonage beyond its due limits or bounds out of an Avaricious design to advance the perquisites of his Parsonage 5. Edward Topsall Clerk Parson of St. Botolphs without Aldersgate London and the Churchwardens of the same Libelled in the Ecclesiastical Court against Sir John Ferrers and alledged that there was a Custome within the City of London and specially within that Parish That if any person being Man or Woman die within that Parish and be carried out of the Parish to be Buried elsewhere that in such case there ought to be paid to the Parson of this Parish if he or she be buried elsewhere in the Chancel so much and to the Churchwardens so much being the Sums that they alledged were by Custome payable unto them for such as were buried in their own Chancel And then alledging that the Wife of Sir John Ferrers died within the Parish and was carried away and buried in the Chancel of another Church and so demanded of him the said Sum. Whereupon for Sir John Ferrers a Prohibition was prayed by Serjeant Harris and upon debate it was granted For this Custome is against Reason That he that is no Parishioner but may pass through the Parish or lie in an Inne for a night should if he then die be forced to be Buried there or to pay as if he were and so upon the matter to pay twice for his Burial 6. The words Parsonage Church and Rectory are frequently in the Law used Synonymously and promiscuously but the word Advowson is another thing and distinct from each of them And as to some Parsonages there are certain Rents due and payable so out of some Parsonages or Rectories there are issuing certain Rents or Pensions which Pensions are not suable at the Common Law but in the Ecclesiastical Court as was said in Crocker and York's Case against Dormer against whom they had a Recovery in a Writ of Entry in the Post among other things of a yearly Rent or Pension of four Marks issuing out of the Church or Rectory of F. In which Case it was agreed by Clench and Fenner that a Pension issuing out of a Rectory is the same with the Rent of which Popham seemed to make some doubt for there being in that Case a Demand for Rent in the Disjunctive viz. a Rent or Pension he moved that the greatest difficulty in the Case was the Demand made in the Disjunctive viz. of an Annual Rent or Pension for if a Pension issuing out of a Rectory shall be said to be a thing meerly Spiritual and not to be demanded by the Common Law or meerly of another nature than the Rent it self with which it is there conjoyn'd by the word or that then it is Erroneous 7. B. brought an Action of Debt against W. upon an Obligation of 600 l. the Condition was That if W. Resign a Benefice upon Request that then the Obligation should be void And the Condition was Entered the Defendant Demurred and Judgment in B. R. pro Querente And upon Error brought Judgment was Affirmed in the Exchequer for this Obligation is not voidable by the Statute of 14 Eliz. which makes Obligations of the same force as Leases made by Parsons of their Glebes viz. per Non-Residency And it doth not appear by the Plea of the Defendant that it was not an Obligation bona fide which might be lawful As if a Patron which hath a Son which is not yet fit to be presented for default of Age and he present another with an Agreement that when his Son come to the Age of 24 years he shall Resign it it is a good Obligation And this Case viz. an Obligation with Condition to Resign had been Adjudged good in the Case of one Jones An. 8 Jac. And the Counsel said That he who is presented to a Church is Married thereto and it is like as if a man who hath married a Wife should be bound to be divorced from her or not cohabit with her these Conditions are void But these resemble not our Case 8. It was said in Johnson's Case That if a Parson Leases his Rectory for years or parcel of his Glebe reserving a Rent and dies if his Successor accepts the Rent that Acceptance does not make the Lease good because by his death the Franktenement is in Abeyance and in no Man And also a Parson cannot Discontinue And by consequence That that he did without Livery is determined by his death And it is not like to the Case of an Abbot Prior or Tenant in Tail 9. Hendon moved for Dr. Clay Vicar of Hallifax That a Prohibition might be granted to the High Commissioners of York for that that these Articles by one Smith were exhibited against him viz. 1. That he read the Holy Bible in an irreverent and undecent manner to the scandal of the whole Congregation 2. That he did not do his duty in Preaching but against his Oath and the Ecclesiastical Canon had neglected for sundry Mornings to Preach 3. That he took the Cups and other Vessels of the Church consecrated to holy use and employed them in his own House and put Barm in the Cups that they were so polluted that the Communicants of the Parish were loath to drink out of them 4. That he did not observe the last Fast Proclaimed upon the Wednesday but on the Thursday because it was an Holy-day 5. That he retained one Stepheson in one of the Chappels of Ease who was a man of ill Life and Conversation viz. an Adulterer and a Drunkard 6. That he did not Catechize according to the Parish-Canon but only bought many of Dr. Wilkinson's Catechisms for every of which he paid 2 d. and sold them to the Parishioners for 3 d. without any examination or instruction for their benefit And that he when any Commissions were directed to him to compel any person in his Parish to do Penance he exacted money of them and so they were dismissed without inflicting any penalty upon them as their Censure was And that he and his Servants used divers Menaces to his Parishioners and that he abused himself and disgraced his Function by divers base Labours viz. He made Mortar having a Leathern-Apron before him and he himself took a Tithe-Pigg out of the Pigsty and afterwards he himself gelded it And when he had divers Presents sent him as by some Flesh by some Fish and by others Ale he did not spend it in the invitation of his Friends and Neighbours or
to Spiritual persons for their necessary maintenance If the original of a Parish in the 2 former acceptations were a device of the ancient Rom. Bish from them derived to other Nations then probably from the inconveniencies thereof might be the beginning of a Parish as it is taken for suâ—h a part of the Diocess as is limited to some Residentiary Incumbent allowed by the Bishop and maintained by the Church-dues in his own Right which consideration of a Parish seems most of all agreeable with those which we now have and were in use with us before Edgar's daies as appears by the Saxon Laws of that time 9. The Ancient Kings and Sovereign Princes of this Realm both before and since the Conquest have ever made special Provision for the due payment of Tithes unto the Church and that ever since there was any Church-Government in this Land witness that Law made before the Conquest by King Aethelstane That every man should pay his Tithes in manner as Jacob did that is of all that God should give him The like did King Edgar and King Edmund command on pain of Excommunication And about the Seventh Century Ina King of the West-Saxons made a Law That the Church-Sceat be paid at Martlemass on pain of paying twelve times as much in case of Refusal this Church-sceat Fleta interpreteth Church-seed and therefore calls it Certa mensura bladi Tritici c. Others read Church-scet that is the Church-shot or Church-due Also the said King Aethelstane in the Ninth Century made a Law by the Advice of Walfehelme his Archbishop and his other Bishops Commanding all his Reeves throughout all his Kingdom in the Lords name and of all Saints that in the first place they pay the Tithe of his own Revenues as well in Living Cattel as the yearly Fruits Likewise King Edmund at a Synod holden in London at which Oda and Wulâ—â—tan Archbishops and many other Bishops were present made a Law Commanding all Christian men by their Christianity to pay Tithes Church-sceat and Almes-fee if any refuse to do it let him be accursed This Alms-fee or Alms-money was that which was called the Peterpence for when Ina the West-Saxon King went in Pilgrimage to Rome he made it a Law to his Subjects That every House should pay a peny to the Pope and this was to be tendred at St. Peters-tide as appears by Edgar's Law nu 4. In the Laws also of King Edgar it was Decreed in the first place That Gods Church should have all her Rights and that every man should pay his Tithes to the Elder Minister or Mother-Church where he heareth the Word cap. 2. of Edgar's Laws And in the Eighth Chapter of King Rnutes Laws it is Ordained That care be taken rightly to pay Gods Rights every year viz. the Plough-Alms fifteen Nights after Easter the Tithe of young Cattel by Whitsontide and the Fruits of the Earth by Allhallentide otherwise the Kings Reeve and the Bishop may take the Tenth part whether he will or no and give it to the Minister whereunto it belongeth Also by the Laws of Edward the Confessor nu 8. 9. it was Decreed particularly that Tithes should be duly paid De Garba Grege Equarum Pullis Vaccis Vitulis Caseo Lacâ—e Vellis Porcellis Apibus Bosco Prato Aquis Molendinis Parcis Vivariis Piscariis Virgultis Hortis Negotionibus in a word omnibus rebus quas de derit Dominus which Decree was afterwards ratified by the Conquerour Afterwards King Edward the First at the Petition of the Clergy established the Articles of the Clergy which his Son Ed. 2. Confirmed by his Letters Patents under the Great Seal and by Consent of Parliament at the Petition of the Clergy in the Ninth year of his Reign And by the Statute of 1 R. 2. cap. 14. it is Acknowledged That the Cognizance of Tithes of right doth and of Ancient time was wont to pertain to the Spiritual Court Also the Cistercians who had purchased Bulls from the Pope to be discharged of Tithes in the Second year of H. 4. were by Act of Parliament after reduced to the state they were in before And in the Fifth year of H. 4. it was Ordered That such as held Lands belonging to any Friers-Aliens should pay all manner of Tithes to the Parsons and Vicars of the Parishes wherein the same were notwithstanding their being seized into the Kings hands or any Prohibition to the contrary For before the dissolution of Monasteries c. by King H. 8. Lay-men were not capable thereof nor indeed after the Dissolution notwithstanding the Statute of 27 H. 8. c. 20. could the People be well brought to pay their Tithes to the Lay-Purchasers thereof not qualified to Sue for the same until the Statute of 32 H. 8. c. 7. enabled them to Convent the Refusers before the Ordinary or other competent Judge according to the Ecclesiastical Laws without the Reserve of any cognizance for the Temporal Judge therein otherwise than as to what refers to the Inheritance or Freehold of such Tithes or in case of disseisin thereof which was not only ratified and confirmed by a subsequent Statute made in the time of Edward the Sixth but it was also then Enacted That the Tithes should be paid as the Usage or Custome had been within forty years next before and that under certain penalties and forfeitures in case of detention or substraction and of treble Dammages in some cases the party so subtracting to be prosecuted in the Spiritual Court according to the Kings Ecclesiastical Laws 10. Sir Simon Degge in his late useful Treatise entituled The Parsons Counsellor par 2. or Law of Tithes cap. 2. discovers a vulgar Error touching the Original Settlement of the Parochial Right of Tithes For whereas it is frequently said in the Books of the Common Law That before the General Council of Lateran every one was at liberty to give his Tithes to what Spiritual Ecclesiastical or Religious person he pleased and that the Parochial Right thereof was settled by the said Council he says there is not any Canon of that Council to any such purpose whereby the Parochial right of Tithes was settled Nor could it then be for that the said Council was in An. 1179. but the Parochial Right of Tithes was not settled till the year 1200. and then not by any Canon but by a Decretal Epistle of Pope Innocent the Third a Brief whereof he there inserts out of Mr. Selden and Sir Ed. Coke If this were an Error in them it was so also in Lindwood c. locat conduct verb. portion But possibly not such an Error in either as is conceived for whether the Canon for the settling of Parochial Right of Tithes made in the Council of Lions 1274. were an Original Decree or only a Confirmation of some former Canon to the same effect or not clear it is that the said Decretal Epistle of P. Innocent 3. obliged only the Province of
Holy Scriptures is meant as is generally held the Kinsmen of the Lord according to the Flesh Antrinitarians were those Hereticks who denied the Blessed Trinity 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 these were a Branch from the Root of Eutyches They supposed that the Flesh of Christ was void of all kind of Humane Infirmity The Emperor Justinian was said to be tainted with this Heresie in his old age by bearing so much with the Emperess Theodora to the great Advance of Eutyches his Error Apelles a Disciple of Marcion yet could not agree with his Master in all things for he agreed that Christ had a true Body but not made of the Substance of the Virgin Mary but of the four Elements and that after his Resurrection he dissolved into the four Elements and then return'd to Heaven from whence he came Epiphan Apollinaris Bishop of Laodicea in Syria so Ruffin l. 2. c. 20. yet it is said of him that missing of a Bishoprick he fell into these Heresies viz. That Christ had not Humane Flesh from the Virgin but from Heaven That he had a Humane body but not a Soul Confounding the Persons in the Trinity That Christ had no Humane Will That Souls begat Soules That after the Resurrection all the Ceremonies of the Law should take place among the Godly Apostolici these Hereticks condemned Marriage and held the Apostles to be all unmarried They made all things to be common They used Apochryphal Bookes for Gospel They refused to receive those into the Church who had lapsed after Baptism They would not have Possessions but rejoyced in voluntary Poverty and gave Sentence against themselves that they were unclean because they were procreated by Marriage Aquarii these were certain Hereticks who instead of Wine received Water in the Holy Sacrament This was in the days of Cyprian Arius a Lybian and a Priest or Presbyter of Alexandria he said that Christ was neither God nor Eternal but an excellent Creature created before all Creatures That he assumed only a Body but not the Soul of a man That the Holy Ghost was a Creature of a Creature viz. of the Son He Rebaptized and perverted the order of Baptism He used the Trisagion thus Gloria Patri per Filium in Spiritu Sancto He denied the Son of God to be begotten of the Substance of the Father but that he was a Creature and made of things not existent and that there was a time wherein the Son was not He was condemned in the Nicene Council and banish'd by the Emperour Constatine Armenii so called of the Province where their Heresies raged by the means of Euchanius called Mantacunes They denied that Christ assumed his Humanity from the Virgin Mary They celebrated the Passover after the Custome of the Jews They held a Quaternity and that the Divinty suffered Artemon Bishop of Bostra in Arabia denied the Divinity of Christ and affirmed that he was not existent before he took Flesh from the Virgin This was in the third Century Artotyritae they were of the Sect of the Pepusians and added Cheese to the Bread in the Sacrament Assitae these were Hereticks who carried about with them new vessels to represent that they were vessels filled with the new Wine of the Gospel Badesianistae these were but a Branch of the Heresie of the Valentinians and Gnosticks who denied the Resurrection these Hereticks were in the third Century Basilides an Egyptian of Alexandria he held fond Opinions concerning the Creation and number of Heavens that not Christ but Simon of Cyrene was Crucified That it was lawful to deny Christ in time of persecution and to have Idols that no Sins but such as are unwittingly committed should be pardoned That Faith was natural That Prophesies came not from God but Angels And that there was no Resurrection Beryllus Bishop of Bostra he was orthodox at the first but afterwards held that the Soul died with the Body and both rose again together That Christ was not before his Nativity Origen reclaimed him These Heresies were condemned in the Arabian Council An. 249. Caini so called of the special worship they attributed to Cain The reverenced Esau Core the Sodomites yea and Judas himself as Authors of mans Salvation They denied the Resurrection of the Body rejected the Law and worshipped evil Angels Tertullian and Epiphanius say that these Hereticks arose from the Nicholaitans but Ireneus says they sprung out of the Valentinians Carpocrates of Alexandria in Egypt he held that Christ was meer man and born of Joseph and Mary he held also the transmigration of Souls also that the Devil created the World and denied the Resurrection These damnable Heresies did spread in Egypt Asia and Rome under the name of Gnosticks he lived incontinently with Marcellina one of his own Sect his Son Epiphanes succeeded him in this diabolical Heresie and after him Prodicus the Author of the Adamites The followers of Carpecrates had in secret places Images of Gold and Silver which they called the Images of Jesus and therewithall the Images of Pythagoras Plato and Aristotle all which they worshipped So that the worshipping of Images and the adoration of the Image of Jesus seems to be a Custome borrowed rather from the old Hereticks than from the ancient Fathers of the first Three hundred years Epiph. contra Haeres Cathari they professed themselves purer than others and held Rebaptizing those who sinned after Baptism condemned second Marriage and refused to receive those who had lapsed in time of persecution The founder of these Cathari was Novatus ordained Priest of Rome by Cornelius upon his repulse in a Bishoprick Cerdon of Syria from whence he went to Rome and in the time of Higinus broached these blasphemous heresies viz. That there were two Gods one good who was the Father of Christ and another severe and bad and this Created the World This Cerdon as also Marcion were the Authors of the Opinion of two Gods or two Beginnings he denied the Resurrection of the Body and invented a new Baptism after a man hath been Baptized a second and third time he held that Christ was neither born of the Virgin Mary or suffered really with many other Blasphemies against him he rejected the Law and often seigned to recant but in the end was Excommunicated having lived in Rome Eight and thirty years Cerinthus a circumcised Jew contemporary with Ebion he affirmed that the World was not Created by God but by an inferiour power That Christ was born after the manner of men of Joseph and Mary denying her Virginity he divided Jesus from Christ saying that Christ descended upon Jesus at his Baptism in the form of a Dove That Jesus not Christ suffered and rose again That there was a necessity of Circumcision and that Life Eternal should be at Hierusalem where all Earthly pleasures should endure One thousand years The report is that St. John finding him in a Bath departed thence saying that it
that Nag or Horse for that it is a Barren Beast not renewing but kept only for Labour and so Adjudged in the Parson of Thimblethorpe's Case where the Case was That a man Leased out certain Lands to another reserving to himself the running of a Nag for his own Riding and after the Lessor was sued in the Ecclesiastical Court for the Tithes of that Nag and a Prohibition was granted by Mountague Crook and Doderidge for that it is a Barren Creature and used only for Riding and although it was urged at the Bar that the Lessee paid him Tithes for all the Herbage but the Court took no advantage of that But Houghton seemed è contra for it seem'd to him That no Barren Cattel should be discharged of Tithes other than such as are used for Husbandry But that was not used for Husbandry Ergo c. And in the Case of a Prohibition between Hampton and Wilde It was Resolved That Tithes shall be paid for Pasturage of a Gelding for his Saddle or if it be sold but not for Horses used only for Labour In a Prohibition the Case was M. the Defendant being Parson of D. did Libel in the Ecclesiastical Court for the Tithes of Sylva Caedua and of the Herbage for depasturing of his Geldings The Plaintiff there shewed that they were his Hackney Geldings which he kept for his pleasure and for himself and his Servants to ride upon being his Saddle Horses and this Plea being there refused for this cause he prayed a Prohibition The whole Court was clear of Opinion That here was good cause for a Prohibition for that these Horses are not Tithable nor any Tithe-Herbage is to be paid for them otherwise it were if they had been Cart-Horses which he had to Till his Ground or for Cattel bought and Fatted to sell again for gain for these he ought to be answerable to the Parson for the Herbage of them but not for the Herbage of his Geldings by him kept and used only for his Pleasure but it was for working Horses for the Cart or Plough or for Fat Cattel bought and and Fatted to sell again of such Cattel allowance is to be made for their Herbage because that a Profit doth come in by them but otherwise it is of Saddle-Horses the whole Court agreed in this and therefore in this Case by the Rule of the Court a Prohibition was granted Nurseries of young Trees and Plants pay Tithes If a man be seised of Land within a Parish which used to pay Tithes and a Nursery be made thereof for young Trees and Plants of divers kinds of Fruit as Apples Pears Plums c. Also of Ash c. and after sell divers of them to Strangers out of the Parish to be transplanted he shall pay Tithes of that Nursery to the Parson for although the young Trees are parcel of the Freehold so long as they continue there yet when they are transplanted they are severed and taken from the Freehold and if that should be permitted without payment of Tithes the Parson might be defeated of the Tithes of all the Land in the Parish by converting them into Nurseries Hill 14 Car. B. R. Gibbs Wiburne Adjudg per Cur. upon a Demurrer and a Consultation granted accordingly Intrat Mich. 14 Car. Rot. 75. Cro. par 3. O OAks beyond 20 years growth that are become dry and rotten and thereby not fit for Timber shall pay no Tithe because they were once priviledged And if Oaks beyond 20 years growth have been used to be Topt and Lopt within every 20 years yet no Tithes shall be paid of these Tops and Branches cut within 20 years growth because their stock is discharged of Tithes Trin. 38 Eliz. B. R. Ram Patteson Mich. 3 Jac. B. Brook Rogers Co. 11. Sampson Worthington 48. B. Adjudg It was also Resolved in Wray and Clenche's Case That small Oaks under twenty years growth apt for Timber in time to come shall not pay Tithes Mores Rep. Likewise Oaks Top'd within the age of 20 years and after the Lop left to grow beyond 20 years no Tithes shall be paid for it is now become Timber Mich. 10 Jac. B. per Coke And Oaks decayed that are not Timber but converted to Firewood shall notwithstanding not pay Tithes More Case 716. Oblations Obventions and Offerings seem to be but one and the same thing and are in a sense something of the nature of Tithes being offered to God and his Church of things Real or Personal Offerings are reckoned amongst Personal Tithes and such as come by labour and industry paid by Servants and others once a year to the Parson or Vicar according to the Custome of the Place or they are to be paid in the place where the party dwells at such four Offering-days as before the Statute of 2 3 Ed. 6. c. 13. within the space of four years then last past had been used for the payment thereof and in default thereof Cro. 3. Abridg. Case 3159. In London Offerings are a Groat a House They are by the Law now in force to be paid as formerly they have been Vid. Stat. 32 H. 8. 7. 27 H. 8. 20. 2 3. Ed. 6. 13. Co. 11. 16. They properly belong to the Parson or Vicar of that Church where they are made Of these some were free and voluntary others by Custome certain and obligatory They were anciently due to the Parson of the Parish that officiated at the Mother-Church or Chappels that had Parochial Rights but if they were paid to other Chappels that had not any Parochial Rights the Chaplains thereof were accountable for the same to the Parson of the Mother-Church Lindw c. de Oblation cap. quia quidam Such Offerings as at this day are due to the Parson or Vicar at Sacraments Marriages Burials or Churching of Women are only such as were confirmed by the Statute of 2 Ed. 6. 13. and payable by the Laws and Customes of this Realm before the making of the said Statute and are Recoverable only in the Ecclesiastical Court Orchard the Soil whereof is sowed with any Grain the Parson may claim the Tithe thereof as well as of the Fruit of the Trees because they are of several kinds and of distinct natures Coke Magn. Chart. 652. P PArk if converted into Tillage shall pay Tithe in kind for a Park is but a Liberty a discharge therefore of the Tithes of a Park is not a discharge of the Tithes of the very Soil which may be converted into Tillage Or if there be a Modus Decimandi of the Park and the Park be disparked and the Land converted into Tillage or Hop-ground or the like in this case though Tithes in kind are not payable yet the Modus shall remain The Case is the same if the Park be disparked by having all the Pales fallen down which in Law is a disparking of the Park Sed Q. For to pay a Buck or a Doe or the
Shoulder of a Deer when one is killed may be a good Modus Decimandi for the Tithe of a Park A Vicar having two shillings yearly and the Shoulder of every third Deer killed in a Park the Park being disparked the Vicar sued for Tithes in kind The Court was divided in Opinion Nicholls and Hobart Justices That notwithstanding the Disparking the Modus did remain Winch and Warburton Justices That by the Disparking the Prescription as to the Modus Decimand was determined and that the Tithes should be paid in kind Quaere Where a Park is disparked if the Park paid ten shillings or any other Sum for all Tithes and now disparked and sown with Corn here only the ten shillings shall be paid otherwise if the Prescription be for the Deer and Herbage of the Park and not for all the Park for in such case Tithes in kind shall be paid if it be disparked and sown with Corn. A Modus to pay so much money for the Tithe of a Park is good though the Park be Disparked If one Shoulder of every Deer killed be Prescribed to be paid for all Tithes and it be after Disparked here the Tithe in kind shall be paid or if the Prescription be to pay Ten shillings and a Shoulder of every Deer and it be Disparked here it shall pay Tithe in kind and not the Ten shillings only Upon a Surmize of a Modus Decimandi to pay a Buck or a Doe for all Tithes of a Park a Prohibition was prayed and granted If a Modus Decimandi be to pay Two things as Two shillings for a Park and a Shoulder of every Buck kill'd in the Park and all the Deer die or are kill'd up yet the Prescription holds good for the Two shillings And although Tithes are to be paid for a Park yet Deer as being Ferae naturae are not Tithable saving where the Custome is otherwise In Thursbie's Case where Suit was for Tithe-Corn growing in a Park lately Disparked the Defendant pleading a Custome to pay Venison in lieu of all Tithes and Proof that a Buck was paid yearly but whether out of this Park or not was a Non constat The Jury found That if it was paid out of any Park and accepted and allowed this was better to uphold the Custome than if particularly tied to pay a Deer out of this Park for now if the Park be disparked yet this payment of the Deer may be performed Otherwise it is if the Custome had been a Deer out of this Park only for then by the destroying of that the Custome is gone also It was holden in this Case by the Judges That although the Deer had been often and for the most part paid out of this Park yet this doth not alter the Custome if it may be paid out of any Park and if the Custome were to pay a Shoulder of Venison generally it may come out of any Park Partridges made Tame do pay not a Predial but a Personal Tithe Pasture yields a Predial Tithe which is generally paid by the Owner thereof and so is the Custome yet Pasture-grounds sed with Cattel that yield profit to the Church have their Tithe satisfied in the Fruit of the Beasts And if they belong to a Stranger who is not of the Parish if he fell the Pasturage he is answerable for the Tenth peny but if he frankly giveth it and the Parishioner freely receiveth it the Parishioner is answerable for the Estimation if the said Grounds be fed with Beasts yielding increase otherwise no Profit at all to the Church if sed only with Horses Oxen and other Barren Beasts And as touching the Pasture of the Horses of Guests the Tithe is to be paid by the Innkeeper for the same But if the said Horses be put into such Pasture as is after a Crop of Hay of the same ground no Tithe is payable by the Innkeeper for the same Nor is the Pasture of such Horses Tithable as the Parishioner useth for his own Riding nor the Pasture of such Horses as are used about Husbandry in the Parish but where Horses are kept or bred in Pasture that they may be sold in that case Tithe shall be paid for the Pasture thereof But if Tithe be demanded for the Pasture of Riding Nags for the Saddle for Labour and Pleasure both but not for Profit properly a Prohibition will lie Nor is the Pasture of Oxen used for Husbandry Tithable that is being used for Husbandry in the same Parish it may be otherwise if they be used for other purposes or for Husbandry out of the Parish Mich. 8 Jac. C. B. in Baxter's Case And as touching Tithe of the Pasture of Guest-Horses by an Innkeeper as hath been formerly mentioned the Case was A. Parson of B. Libelled in the Ecclesiastical Court against C. an Inn-keeper because that the said C. took all the benefit of his Pasture by putting Guest-Horses into the same whereupon C. prayed a Prohibition but it was denied by the Court for that it is Tithable in this case But it was said That if C. had taken a Crop of Hay whereof he paid Tithe and afterwards had put in his Guest-Horses into the After-pasture of that Ground where such Hay was made in that case it had not been Tithable because the Parson had Tithe of the Land before Trin. 16 Car. B. R. Richardson and Cobbell's Case Poph. 142. Also if a man lett out his Pasture reserving the Pasture of a Horse for himself to ride about his Husbandry-affairs Tithe shall not be paid for the Pasture of this Horse but if a man keep and breed Horses in his Pasture to sell them there Tithe shall be paid for the Pasture of such Horses Trin. 15 Jac. B. R. Larking and Wild's Case Poph. 126. Vid. Trin. 9 Jac. B. R. Pothill and May's Case Bulstr par 1. 171. Vid. Agistment Vid. Grass Pease gathered Green to eat in the Parishioners Family no Tithe shall be paid thereof and that per legem terrae But otherwise it is in case they be gathered to sell or to feed Swine therewith in which Tithe shall be paid thereof Pasch 12 Jac. B. per Cur. Pelts or Fells of Sheep dying of the Rot are not Tithable without a special Prescription for it The Case was A. Libelled in the Ecclesiastical Court for the Tithes of Pelts and Fells of Sheep which Sheep died of the Rot a Prohibition was pray'd and granted to stay proceedings in the Ecclesiastical Court because such Pelts are not Tithable unless there be a Special Custome for it Trin. 3. Jac. B. R. Ashton and Willer's Case Pheasants that are Tame pay a Personal not a Predial Tithe If a man hath Pheasants and keep them in an enclosed Wood and clip their wings and they hatch Eggs and breed up young Pheasants no Tithes shall be paid of these Eggs or young Pheasants for that they are not reclaimed but continue to be Ferae naturae