Abridgment of Ecclesiastical Laws, Treatise · Chapter 32

Abridgment of Ecclesiastical Laws · Treatise · Chapter 32

p. 344CHAP. XXXII.

Of Tithes.

1. What Tithes are; the Original thereof in England; with the Diviſion and Subdiviſion thereof.

2. Whether the Quotity be Moral, or only of the Ceremonial or Judicial Law? The Inſtitution of Tithes; the lawfulneſs thereof under the Goſpel; it is Sacriledge, Theft, and Robbery to withhold them.

3. The Common Arguments againſt the payment of Tithes, Anſwered.

4. A Fourfold Diviſion of Tithes under the Levitical Law.

5. The Schoolmens conceit touching the Diviſion of Tithes in alluſion to the Diviſion of the Law of Moſes.

6. Tithes anciently Eccleſiaſtical are now Temporal Inheritances; ſeveral Laws touching Tithes in general.

7. What the Common Law of England underſtands by Tithes: The firſt obſtruction thereof by Charles Martel.

8. The ſuppoſed Reaſon, why Tithes before the Lateran Council might be paid to any Church or any Prieſt: The original Diviſion of England into Pariſhes.

9. The Exact proviſion anciently, as well before as ſince the Conqueſt, made by the Sovereign Kings and Princes of this Realm for the due payment of Tithes.

10. The Suppoſition of the Par…chial Right of Tithes to be ſettled by a Canon of the Council of Lateran, Contradicted.

11. Whether a Parſon may make a Leaſe parol of his Tithes.

12. Tithes diſcharged by Ʋnity of poſſeſſion.

13. A Covenant between Parſon and Pariſhioner touching Nonpayment of Tithes.

14. Whether Proof by one Witneſs in caſe of Tithes, ought to ſuffice in the Eccleſiaſtical Court.

15. Tithe-Wool, and Rotten Sheep; Tithe-Calves.

16. Tithe-Headlands; Tithe-Wool; Lamb and Wool included in Samll Tithes.

17. Tithe-Wool of Sheep depaſtured in one Pariſh and ſhear'd in another.

18. Suit for the Tithe-Graſs of a Riding Nagg.

19. Modus decimandi touching Tithe-Wool, and Lamb.

p. 34520. Park-Tithes; Buck and Doe not tithable; what Partridges and Pheaſants are not tithable.

21. Saffron, whether it be Small Tithes; Veniſ…n not tithable.

22. Prohibition for not allowing Proof by one Witneſs.

23. An Action of the Caſe lies againſt a Parſon, that takes not away in due time his Tithe-Corn ſet out.

24. The Pariſhioner not obliged to divide the Tithes into Moities, where two perſons have portion of Tithes by halves.

25. A Cuſtome of not tithing the odd Sheafs, good.

26. Whether Tithes ſhall be paid of the Glebe leaſed to a Farmer.

27. Whether Tithes may be Leaſed or Releaſed without Deed?

28. A Parſon may Sue in the Eccleſiaſtical Court pro modo Decimandi.

29. Whether that Court may proceed therein in caſe the Modus be denied.

30. In what caſe the Right of Tithes is triable in the Exchequer.

31. A Caſe in Law touching Preſcription, and of Tithes of a Park Diſparked.

32. What things are reputed Majores, what Minores Decimae, and how they may vary according to the Circumſtances.

33. Whether Tithes are payable of Cattel for the Dairy or the Plough?

34. Whether a Dean and Chapter be capable de non decimando their Lands?

35. Touching Tithe-Herbage of young Cattel, of Hedge-ſtuff, of Orchards, and the Cuſtome of Hearthy-peny.

36. Tithe-Fiſh, Cuſtomary Tithe; whether Prohibition or not.

37. Acorns tithable, if ſold; whether Pidgeons, if ſpent in the houſe.

38. Several Caſes touching Diſcharges of Tithes.

39. Hay of Headlands, whether tithable?

40. Preſcription for diſcharge of Tithes upon payment of 10 s. per ann.

41. A Forreſt in the Kings hands is priviledged of Tithes, not ſo in the hands of a Subject: The Right of Tithes between Parſon and Vicar, triable in the Eccleſiaſtical.

42. Whether Tithe ſhall be paid for Hedge-boot and Fire-boot?

43. Touching Tithe of young Cattel, of Hedging and Fencing, of the Herbage of Heifers and Horſes, of Dry-Cattel, and of Gardens; how far tithable, or not.

44. Apples ſtollen out of the Orchard, not tithable; no Tithes of Paſture of Milch-kine grown dry▪ unleſs kept for Sale.

45. Compoſition for Tithes for life; not good without Deed.

p. 34646. Eſtovers burnt in the houſe, not Tithable. The Hearth-peny good by Preſcription.

47. A Compoſition for Tithes de anno in annum.

48. The Modus decimandi is Suable in the Eccleſiaſtical Court, as well as the Tithe it ſelf.

49. Pro…ibition in caſe of Libel to prove in perpet. rei memo.

50. Cuſtome of Tithe-Graſs Cocks as to both Mathes.

51. In a Prohibition upon matter at Common Law, and not within the Stat. of 2 E. 6. 13. the Suggeſtion need not be proved in Six months.

52. Tithe-Hay of Headlands; Cuſtome and Preſcription.

53. Tithe-Hay of Heathlands; alſo Tithe of Pidgeons.

54. Minute Tithes to the Vicar.

55. Tithes to Parſon and Vicar may amount but to one Action.

56. The Curate may not Preſcribe in Tithes againſt the Parſon.

57. Curates may ſue for Penſions in the Eccleſiaſtical Court.

58. By the Civil Law, the Parſon to have Notice when Tithes ſet out.

59. Action on the Caſe againſt a Compounder for Tithes Suing in the Eccleſiaſtical Court.

60. Modus decimandi by one may hold as to others for a Prohibition.

61. Compoſition for one year good without Deed, not if for years.

62. Tithe-Haſel, Holly, Willow, Whitethorn: Whether the Pariſhioner ſhall preſerve the Parſons Tithe for him.

63. Teſtis Singularis not ſufficient to prove payment of Tithes in the Eccleſiaſtical Court.

64. Compoſition for Tithes, and a Prohibition thereon.

65. Tithes taken away by a Stranger after they are ſet out, the Parſons remedy lies at the Common Law.

66. In what Caſe no Coſts upon failure of Proof of the Suggeſtion within the Six months.

67. Modus Decimandi may be Sued for in the Eccleſiaſtical Court, where if denied, they are to ſurceaſe.

68. Cuſtome in Cornwall touching Tithes of Sea-f…ſh.

69. In what Caſe an Agreement for Tithes for years may be good without Deed.

70. In what Court Tithes of Rents in London may be Sued.

71. A Collector of Tithes cannot Licenſe a Pariſhioner to carry away his Corn.

72. Whether Debt lies for Treble dammages upon Fraudulent ſetting forth of Tithes.

73. Tithes, whether they belong to the Parſon or the Vicar, cognizable in the Eccleſ…aſtical Court, where the Right of Tithes is confeſſed.

p. 34774. The Eccleſiaſtical Court not Judges of the Bounds of a Pariſh.

75. Modus Decimandi in reference to a Park.

76. A Fr…udulent ſetting out of Tithes, is no ſetting them out at all.

77. The Vicar ſhall have Tithe of Rape-Seed, being within a Preſcription, though a new thing in England.

78. What the word Garba ſignifies.

79. Whether Wood in its own nature be great Tithes; and in what caſe it ſhall paſs by the words de minutis Decimis.

80. If two Titles of Tithes unite in one perſon, there need but one Action for them.

81. A Parſon may not ſett a Leaſe for years of Tithes per parol only.

82. If a Parſon be diſturbed in carrying away his Tithes ſe… out, his Remedy lies properly in the Eccleſiaſtical Court.

(1.) TITHES [Diſmes, Decimae] probably an abbreviation from the Saxon, Teo…un…, or Tithing, properly Decuria in that Language. Lamb. Expl. of Sax. words, verb. De…uria. That the Apoſtles and Elders at Jeruſalem were competently ſupplied by the Contributions of the Jewiſh Proſelytes, is very conjecturable in that they ſold their poſſeſſions, and brought the price thereof and laid it down at the Apoſtles feet; and ſuch as then planted the Goſpel, and labour… in the Word and Doctrine, had their maintenance by the Contributions of their Converts. Vid. Concil. Grang. Can. 7, & 8. And St. Cyprian writing to his Church of Carthage, Epiſt. 33, & 34. to receive Aurelius and Cellerinus, Confeſſors, ſaith in Epiſt. 34. Presbyterii honorem deſignaſſe nos il…is jam ſciatis, ut & ſportulis iiſdem cum Presbyteris honorentur, & Diviſiones Menſurnas aequatis quantitatibus partiantur, Know you, that we have already deſigned to them the Dignity of Presbyterſhip, that they might be honoured with ſuch allowances as Presbyters have, and receive equal ſhares in the Monthly Dividends. So that Sportulae were the allowances,Cawdrey's Diſcourſe of Patronage, p. 8. which in this Infancy of the Goſpel the Presbyters had out of the Contributions of the Converts. And the Fratres Sportulantes mentioned by him in Epiſt. 66. were the Clergy which received ſuch allowance. Theſe Converts (after the Converſion of Conſtantine the Emperour) many of them being Governours and Nobles, ſettled great and large Demeſn-Lands upon thoſe who Converted them; and that (according to Mr. Seldens conjecture) the firſt Oratories or places of Publick Worſhip, were built in the Lands beſtowed on them; which firſt Oratories were called Cathedrals, Sees, or Seats, from their conſtant Reſidence p. 348thereon. That the Chriſtian Church even in times of Perſecution laid claim to Tithes as due Jure Divino, is partly confeſſed by Mr. Selden himſelf, citing ſome paſſages in the Ancient Fathers to that purpoſe. But when the Empire became Chriſtian, then the Chriſtian Clergy did more earneſtly preſs the Donation of Tithes; and in proceſs of time they prevailed, not only by Preaching and Canons, but by the Edicts of Emperours and Kings, to have Tithes given to the Church. And it appears, that the Roman Empire, whereever it did reduce any Conquered Countrey in formam Provinciae, appointed the Farmers of the Cuſtomes, to collect among other Impoſitions the Tenths of the Tenants of the Empires; that is,…bid p. 10. of all who occupied any Land in the Conquered Province, either as immediate Tenants to the Empire, or as Sub-Tenants under them. The Publicans therefore who collected theſe Tributes were called Decumani, as Mr. Selden, pag. 39. of his Hiſtory of Tithes doth obſerve out of Appian. But whether theſe Tenths were received by the Senate or Emperours, upon a Civil or Religious account, is not liquid and clear: For the Emperours alwaies till Chriſtianity came in (nay Conſtantine and other Emperours even after Chriſtianity was received, till Gratian's time, as the Noble and Learned Dupleſſy in his Myſtery of Iniquity obſerves out of Zoſimen) continued the chief Pontifice or High-Prieſthood in their own perſons. And as touching us here in England, Dr. Heylin, P. H. Treleyny, in his Treatiſe touching Tithes, p. 3. ſaith, Tithes are not given to the Miniſters by the People; for Sr. Ed. Coke on Litt. Tenures, lib. 1. c. 9. Sect. 73. fo. 58. aſſerteth, That it appears by the Laws and Ordinances of Ancient Kings, and eſpecially of King Alfred, That the firſt Kings of this Realm had all the Lands of England in Demeſn, and Les Grandé Mannors & Royalties they reſerved to themſelves, and with the Remnant they for the defence of the Realm enf…offed the Barons of the Realm with ſuch Juriſdiction as the Court Baron now hath. And at this time, when all the Lands of England were the King Demeſns, that Ethelwolph the Second Monarch of the Saxon race (his Father Egbert being the firſt, which brought the former Heptarchy under one ſole Prince) conferred the Tithes of all the Kingdom upon the Church by his Royal Charter. Of which Ingulph Abbot of Crowland, An. 855. ſaith, That King Ethelwolph with the conſent (gratuito conſenſu) of his Prelates and Princes, did firſt enrich the Church of England with the Tithes of all his Lands and Goods. Many other Laws of the Saxon Kings for the payment of Tithes are recited by Mr. Selden, as entirely the Gift of Kings: And ſo ſaith King Elred, Nemo auferat à Deo, quod ad Deum pertinet, & Praeceſſores noſtri conceſſerunt. The whole Biſhoprick Anciently was in a large ſenſe a Paroecia, and the income of it p. 349(by Contributions firſt, and by Tithes alſo afterwards) was the Common ſtock of all the Clergy of the Dioceſs; and Mr. Selden aſſerts it to be the general Opinion of all the Common Lawyers, That before the Lateran Council, under Innocent 3. every man might have given his Tithes to what Church he would (probably within the Dioceſs) becauſe they were not the Propriety as yet of any one Presbyter, but the Common Patrimony of all the Dioceſan Clergy. So that Tithes are a Tenth part of all increaſe Tithable, due to Godaa… …0., and conſequently to his Miniſters that wait on the Altar. Theſe are divided into Three ſorts, 1. Praedial Tithes, ariſing only either of the Fruits of the Ground, as Corn, Hay, Hemp, and the like; or of the Fruits of Trees and Orchards, as Apples, Pears, and the like. 2. Perſonal Tithes, ariſing of the profits that come by the labour and induſtry of Man, either by Handicrafts, as Carpenters, Maſons, and the like; or by Buying, Selling, or Merchandizing. 3. Mixt Tithes, ariſing partly of the Ground, and partly of the Induſtry of Man, as of Calves, Lambs, Piggs, Milk, Cheeſe, and the likebb… Jac. R… C. B.. No Tithes ſhall be paid for ſuch things as do not increaſe and renew year by year, by the Act of Godcc…o. Gra…, Rol… 6.. Of Praedial Tithes ſome are called Majores, vulgarly termed the Great Tithes: others Minores vel Minutae, vulgarly the Small Tithes. The Great, ſuch as Wheat, Rye, Hay, &c. The Small, ſuch as Min…, Annis, Cumin, &c. dd… 42.. And commonly with us here in England we compute Flax in the number of Small Tithes (which is a Praedial Tithe) as alſo Wool, Milk, Cheeſe, Eggs, Chicken of all kinds, Lambs, Honey, Bees-wax, and the like, Vid. Lindw. cap. de Decimis. In Ancient times the Laity were ſo far from ſubtracting their Tithes, as is the common practice of theſe daies, that ofttimes they would give more than was due or demanded; and were ſo Conſcientious in the payment thereof, as at their death they uſually bequeathed a Soule-Sceat to their Parochial Prieſt in lieu of any Tithes forgotten; and at their Funerals cauſed their beſt Ox or Horſe to be led with the Corps, and as a Mortuary or Oblation given to the Prieſt in recompence of any Tithes, which poſſibly in their life-time might have been omitted to be paid. But in theſe latter Ages (not regarding what S. Hierom ſays) That Fraudare Eccelſiam eſt Sacrilegium ee… 14. … 2., all Artifices imaginable are put in practice to ſubduct the Tithes; and therefore to enforce the due payment thereof were the Statutes of H. 8. and Ed. 6. made and enactedff… St. 8. 20. 32 … 8 & 2 Ed.

2. Covarruvias, with other Canoniſts and Schoolmen, holds, That by the Moral Law the rate or proportion of Tithes is not neceſſarily to be the Tenth part of the Fruits; which the more received Opinion holds to be both Erroneous and Miſchievous; and that by the Law of God and Nature, no Cuſtome deviating from p. 350the exact rate and proportion of the Tenth of the Fruits, ought to prevail any longer than by the free and mutual conſent of Parſon and Pariſhioner: For which reaſon it is ſuppoſed, That the paying of a Halfpeny for a Lamb, or a Peny for a Calf, by ſuch as have under Seven in one year, is now become an unreaſonable Cuſtome, in regard the value of ſuch Lambs and Calves is now raiſed four times higher, than in Ancient times. This ſeems far remote from Tithes, the very Quotity whereof ſeems to be Moral ggLevit. 27. 30.Lev 27:30, rather than Ceremonial or Judicial; and not only allowed or approved, but even commanded by our Saviour himſelfhhMatt. 23. 23. & Luke 11. 42.Matt 23:23Luke 11:42: Yea, by the very Law of Nature (which is the ground of the Moral Law, and long before the Levitical) Tithes appear to be due, in that Abraham paid it to Melchiſedec: And God himſelf (who is the beſt Interpreter of his own Law) calls the detention of Tithes Sacriledge iiMal. 3. 8, 9. 10. vid. Pro. 3. 9, 10.Mal 3:8Mal 3:9Mal 3:10Prov 3:9Prov 3:10. And that Command of Chriſt, affirming that Tithes ought to be paid of all, even to the very Herbs, ſpoken by him at the period of the Levitical Law, ought not to be reſtrained only to the Prieſthood of Aaron; for it doth now remain in force as to Prieſts under the Goſpel, as that other part of the Moral Law, Thou ſhalt not ſteal, the withholding of Tithes being expreſly interpreted Theft and Robbery by the ProphetkkMal. ibid.. And leſt it ſhould be thought a meer Human Intereſt, or in the power of Man to alienate, God himſelf hath vouchſafed to take Tithes upon his own account in his Miniſters behalf. Theſe Tithes could not be meerly Ceremonial (as ſome would have it) for they prefigure nothing, nor are they repealed by any one Text in the Goſpel, but reinforced as aforeſaid: ſo that whatever was commanded in the Old Teſtament, and grounded on the Law of Nature, and being not Repealed in the New, muſt yet ſtand in force, as a Duty of the Moral Law. And if it be Objected, That Tithes were not paid in the Primitive times of the Chriſtian Church; the Reaſon is, not becauſe they were not then due, but becauſe there was not then any ſuch ſettled Order for things of this or the like nature in the Church.

(3.) Wherefore all the Common Objections made againſt the payment of Tithes in the Chriſtian Church may be reduced to one of theſe Four: (1.) That our Saviour gave no Command to his Apoſtles to take Tithes, but rather on the contrary ſaid, Freely ye have received, freely give.—Anſw. Yet our Saviour ſays, Theſe things (ſpeaking of Tithes) ought you to have done llMatth. 23. 23. & Luke 11. 42.Matt 23:23Luke 11:42. And ſays, The workman is worthy of his meat mmMat. 10. 10.Matt 10:10. And St. Paul ſays, The Labourer is worthy of his Reward nn1 Tim. 5. 18.1 Tim 5:18. Where hath Chriſt in totidem verbis forbidden Sacriledge? wilt thou therefore commit it, becauſe he hath not in terminis terminantibus forbidden it? Thou that abhorreſt Idols, doſt thou commit Sacriledge ooRom. 2. 22.Rom 2:22? (2) Tithes p. 351were not paid till about three hundred years after Chriſt, as Tertullian, Origen, and S. Cyprian do teſtifie. Anſw. Theſe Fathers do withal acknowledge, that during that time the Churches Maintenance was the Peoples free Contribution; which probably might have continued to this day, had not that Contribution in proceſs of time turned into a Sacrilegious Century by Covetouſneſs, inſtead of a Commanded Decuma as a Duty Morally enjoyn'd. (3.) That Tithes came firſt into this Kingdom by the power of the Pope, as by Pope Adrian in the time of Offa King of Mereia, during Englands Heptarchy, in An. 786.—Anſw. Poſſibly it might be ſo; what follows thence? does a thing lawful in it ſelf become unlawful, becauſe a Pope enjoyns it? what if he had commanded Alms to be given inſtead of Tithes? muſt we therefore be neither honeſt in payment of the one, nor charitable in giving the other, becauſe there was a Command of a Pope in the caſe? (4.) That AEthelſtane, Edmond, Edgar, Canutus, and AEthelwolfe, Kings of England, Ordained the payment of Tithes meerly to pacifie their Conſciences, and thereby to make Atonement for their Blood-guilty Souls.— Anſw. Admit it were Hiſtorically true, yet the final Cauſe of any Action, or the End for which a thing is done, alters not that quality that is inherent naturally in the thing: A thing lawful in it ſelf commanded for a wrong End, perverts the Action, not the thing; if a man gives Alms that the Poor may be drunk, though that be no Alms, yet it doth not render Alms as unlawful, nor alter that quality of Charity which is inſeparable from Alms.

(4.) Tithes Anciently were Fourfold, as (1) That which the People paid to the Levites ppHierom. ſup. Ezek. 14 45. & Num. 18. 26.Ezek 14:45Num 18:26. (2) That which the Levites thence paid to the PrieſtsqqDeut. 14. 22.Deut 14:22. (3) That which the Jews reſerved for Expence in their Solemn Feaſts, when they went to the Tabernacle or TemplerrDeut. 14. 23.Deut 14:23. (4) A Third years Tenth, which was then laid up for the Levite and the PoorssDeut. 14▪ 28.Deut 14:28. The firſt of theſe is held a Natural, Moral, and Divine Tribute; the ſecond and third Ceremonial; the fourth Judicial. The Jews had alſo their Theruma, which was not properly Tithe, but a ſecond kind of Firſt-Fruits: There were two kinds hereof, the one called the Great Theruma, the exact quantity whereof was not defined by Moſes; but the Ancient Lawyers determin'd, that it might not be leſs than the fourtieth, fiftieth, or at leaſt the ſixtieth part of the kinds already dreſs'd and prepared, as Wheat Fann'd, Oyl and Wine, Corn in the Ear taken from the heap and given to the PrieſtsttHierom. …ubi ſup….. The other was the Leſſer Theruma, which was, that when the former was taken away for the Prieſts, the reſt of the Heap was Tithed for the Levite, the tenth part whereof the Levites gave to the Prieſts, which was called the Tithe of the Tithe, or the Theruma of the Tithe.

p. 352(5.) Becauſe the Law of Moſes hath been divided into Three parts, viz. Moral, Judicial, and Ceremonial, ſome of the Schoolmen have thence conceived, That Tithes admit the like diviſion, whereof the Moral part was only a neceſſary Maintenance for the Miniſter, and therefore natural and perpetual: The Judicial part was the number of Ten, as fit only for the Jews, and therefore poſitive and remotive: The Ceremonial part was the Myſtery contained in this Number of Ten, which being (as they taught) but a ſhadow only, was vaniſh'd and aboliſh'd with the Law it ſelf; and thence inferr'd, that the Quotity or preciſe number of Ten being taken away by reaſon of the Ceremony, a competency now only remains for the Miniſter out of the Tithes: This Conceit hath occaſioned no ſmall prejudice to the Church, although it hath no more probability of truth in it, than that whereon it is grounded, viz. That the Number of Ten is a type of Chriſt, and that the inferiour Digits do ſignifie the People. Levi himſelf paid Tithes to the firſt Prieſt we ever read of, that is, he paid them in Abraham, which being urged by the Apoſtle againſt the Levitical Ceremonies, argues, that they are more than meerly Levitical and Ceremonial; indeed if we conſider their aſſignment to Levi's Tribe, they are ſuch, but not otherwiſe. The Sabbath and Tithes were both before the Law in their very Numbers reſpectivelyuuGen. 2. 3. & 14. 20. & 28. 22. Heb. 7. 4.Gen 2:3Gen 14:20Gen 28:22Heb 7:4, and were but repeated by Moſes under the Law, becauſe they had been approved of God before the Law in the ſelf-ſame Numbers. The Sabbath is ſaid to have a Moral and a Ceremonial part: The Moral is perpetual and unalterable, which is, that God ſhould have a Seventh day; the Ceremonial being Typical of our Reſt in Heaven is only poſitive, and not ſo unalterable, but that it might be (as it is) changed from the Seventh day of the Creation, to the Seventh after our Saviours Reſurrection: So Tithes, they alſo have a Natural and a Poſitive part; the Natural is permanent and unalterable, which is, that God hath reſerved to himſelf a Tenth of the increaſe, &c. for the Maintenance of his Miniſters; in which ſenſe immediately after the diſſolution of the Jews policy, the Chriſtians of the Primitive Church, as ſoon as they could get any outward form of a Church, and peace from Perſecution, received it in the very Quotity: the Poſitive is, That the Lord annexed thoſe Tithes by Moſes to the Prieſts and Levites for their maintenance, during the diſpenſation of the Myſteries under the Law, and th…refore changed by the Chriſtians in the Primitive Church to the Chriſtian Eccleſiaſticks wwDr. Ridley's View. cap. 4. Sect. 7.; ſo that how this Quotity can be changed into a Competency, ſ…ms neither demonſtrable nor warrantable by the Word of God, but that the Quotity ought to remain as a perpetual Right due to God and his Church. And if any ſhall argue, that Tithes are not p. 353to be paid or required in a Proteſtant Church, becauſe they have been ever ſo upheld in the Church of Rome; ſuch may as well argue, they ought not to be paid in a Chriſtian Church, becauſe they are paid to Mahumetan Princes, for ſo they are, and that becauſe they were Prieſts; for every Husbandman is bound to pay for Tribute the Tenth part of all his Corn to the Patriarch for the uſe of the Prince, the relief of Impotent people, and Widows, and for maintenance of War againſt the Enemy. Purch. Pilgr. lib. 6. cap. 1. §. 3. p. 803. nu. 10.

(6.) Tithes, which anciently were meerly Eccleſiaſtical, are now made Temporal Inheritances; therefore are they Aſſets in the hands of the Heir, the Wife endowed of them, and the Tenant by the Courteſie ſhall hold themxxCo. 11. …4. on Lit…. 159. Bulſtr. 2. 184. Hob. 250. …96. Co. 2. 4 & Dod▪ of Advowſons.. They are not grantable for life, or years, or for a longer term than one year, but by DeedyyLatch. 176.. They cannot be extinguiſhed by a F…offment of the Land, nor paſs by a Deviſe of Lands, with all profits and commodities thereto belonging; and yet may be exchanged for Temporal InheritanceszzCo. 2. 13.. Anciently and at the Common Law there were none qualified to receive them, but either an Eccleſiaſtical perſon, or a mixt perſon as the King. They are not extinct by their coming into any hands, but of the Parſon himſelfaaDyer 43.. And that which is given in lieu of them is turned into a Spiritual FeebbHob. 42.. It is not paid more than once for one and the ſame thing in one and the ſame year, and that only for the neat and clear profit of the thing TithableccPoph. 197.. It muſt be paid in kind, if there be Corn now where Wood grew before, or Wood planted now where Woodlands formerly were. And the Law allows the Parſon a convenient time to remove the Tithe; which circumſtance of Time and the convenience thereof is triable by a Jury; and if the Parſon exceed the Time, the Pariſhioner may have his Action againſt him as a Treſpaſſer ab initio ddBulſtr. 3. 336. Godb 329.. And ſome conceive, that the Pariſhioner is not bound to give the Parſon Notice when he doth ſet forth his TitheeeNoy 59.. By the Civil Law the Pariſhioner ought to give the Parſon Notice when the Tithes are ſet forth; but it hath been Adjudged, that the Common Law doth not ſo oblige a manffNoy's Rep. in Spencer's Caſe.. But a ſeverance of Nine parts from the Tenth part there muſt be, for ſuch Severance is ſo neceſſary, and in a kind ſo eſſential to Tithes, that they are not due, nor is it Tithe within the Statute of 2 Ed. 6. until ſuch Severance be made. Yet the Parſon may Grant his Tithes growing upon the Land, before Severance; which ought to be made by the Owner of the Land: for though the property of Tithes ſet out by the Owner of the Land belongs to the Parſon, yet it is otherwiſe if they be ſet out by a StrangerggLatch. 8.. And in caſe the Land be not in any Pariſh, then the King ſhall have the Tithe thereof by his p. 354Prerogative and by the Cuſtome of England hhHill. 14 Jac. in C…m. Scacc. Colt verſ. Glover. Roll. Rep.. But where Lands in themſelves Tithable, are not manured or ploughed, ſpecially in prejudice to the Parſon, in ſuch caſe he may notwithſtanding Sue the Occupier thereof in the Spiritual Court for the Tithes of that LandiiVid. Hugh. Abridg. 689. caſe. 8.. But if the Pariſhioner duly ſets forth and ſevers the Tithe in convenient time, and after Dammage happen to him by the Parſons not taking the ſame away in like convenient time, in that caſe the Pariſhioner may have his Action on the Caſe againſt the ParſonkkDr. Bridgman's Caſe. Noy. Rep. 31. & Paſch. 20 Jac. B. R. Rot. 286. & Latch. 8.

(7.) The Common Law of this Realm takes notice of Tithes by the word [Diſmes] (Decimae) of the French (Decimes) ſignifying Tithe, or the Tenth part of all the Annual Fruits, either of the Earth, or of Beaſts, or Mans labour and induſtry, due unto God, and conſequently to him that is of the Lords Lot, and hath his ſhare by his ſpecial appointment: It ſignifieth alſo the Tenths of all Spiritual Livings, yearly given to the Prince, called a perpetual Diſme ll2 & 3 Ed. 6. c. 15., which anciently were paid to the Pope, until Pope Ʋrban gave them to K. Richard the Second, to aid him againſt Charles the French King, and ſuch others as upheld Clement the Seventh againſt him as aforeſaidmmPol. Virg. Hiſt. Angl. lib. 20.. It ſignifieth likewiſe a Tribute levied of the TemporaltynnHolinſh. in Hen. 2. fo. 111.. But here it is to be underſtood, as Quota pars omnium bonorum licite quaeſitorum, Deo Divina Inſtitutione debita; which though according to the Canon Law is a Tenth of Annual and lawful Encreaſe commanded to be paid to the Sons of Levi for their maintenance in conſideration of their Miniſtry; yet at the Common Law it is an Eccleſiaſtical Inheritance collateral to the Eſtate of the Land, and of its own nature due only to Eccleſiaſtical perſons by the Eccleſiaſtical LawsooCo. 11. 13. b.. The Practice whereof never met with any conſiderable interruption in any Age, until Charles Martel's Sacrilegious Infeudations of Tithes, about the year 650. which uſher'd in ſuch a Preſident into the Chriſtian World, as could never to this day grow obſolete and out of uſe. Notwithſtanding from the beginning it was not ſo, nor did any Lay-perſons pretend to Tithes originally, nor legally till the Statutes of Diſſolutions of Abbies made them capable thereof, whereby the Tithes appropriated to ſuch Houſes of Religion as were diſſolved became a Lay-Fee, and Suable by the Laity in the Kings Eccleſiaſtical Courts.

(8.) Where in the Books of the Common Law it is Reported, That before the Council of Lateran, every man might give his Tithes to what Church he pleaſed, and might have beſtowed them upon what perſon he thought beſt; there it is alſo aſſerted for reaſon, That before that Council there were no Pariſhes, nor Pariſh-Prieſts that could claim them. But by a Canon made in that Council, every man is ſince compellable to pay his Tithes to the Parſon or Vicar of that Pariſh where the Tithes ariſeppCo. 2. par. 44. …. E. 3. by … 7 E. 3. 5. by Parot. Mich. 15 Jec. it. C. B. Slade and … Caſe. Hob. 296. …cc. High. ….. Here may ariſe a queſtion, Whether p. 355there were not Pariſhes long before any Council at Lateran? For admitting that the Second Lateran Council was held in the year 1120, as S. Tho. Ridley computes itqqView. par. 3. cap. 4 §. 5., or that the general Council of Lateran was held in the year 1179, as Sir Simon Degge calculates itrrLaw of Tithes. cap. 2. p. 147., yet there ſeems of be a diviſion into Pariſhes ſome Centuries of years before either of theſe: For it is ſaid, That Cities and Countries were divided into ſeveral Pariſhes by an Ordinance of Pope Dionyſius about the year 266ssRidl. ibid. p…r. 3. cap. 2. Sect. 4., and from him derived into this and other Realms: Alſo, that Eccleſiaſtical perſons firſt in this Kingdom made Diviſions of Pariſhes, as appears by our own ChroniclesttRegiſ…. Eccl. Chriſt. Cant. Stow. Ridl. ibid.; and that the firſt Practice thereof came from Honorius the 4th Archbiſhop of Canterbury after Auguſtine, who died in the year 693uuRidl. ibid.. And ſuch as have followed the courſe of Antiquity in this matter, conceive that the original of Pariſhes had its Preſident from the practice of ſome Ancient Roman Biſhops, it being (as ſome would have it) recorded in the Pontifical of Damaſus; but in Anaſtaſius's Bibliothecar, it is found, That when Peter had appointed and ordained Prieſts, &c. and Cletus had reduced them to a certain number, Pope Euariſt aſſigned to each of them his Pariſh; and as to the time when thoſe Pariſhes were aſſign'd by Euariſt, it muſt be about the beginning of the ſecond Century, which was many Centuries before the C. of Lateran, as alſo was the practice thereof here in England by Honorius, as aforeſaid, the truth whereof is approved by Cambden. But Cavendum, &c. ſaith Marſil in his Book De Red. Eccl. c. 12. heed muſt be taken as to the word Pariſh, for it is equivocal, having various acceptations, as ſometimes when nothing is named but a Pariſh, the whole Dioceſs is underſtood, which notion of the word often occurs in the Councils; in which ſenſe Barbatia ſpake a wide word for the Pope in his Tract. de praeſt. Card. when he ſaid, that in reſpect of his Holineſs, the whole world was but one Pariſh. Sometimes a Pariſh is taken for ſuch a part of the Dioceſs, as was aſſign'd to ſome Prieſt, arbitrarily ſent and maintained by the Biſhop; to whom ſuch a Pariſh paid all their dues, and he to his Clergy▪ about which time this cuſtome was introduced, that all Church-dues ſhould be at the Biſhops diſpoſal, to be divided into four portions, whereof he ſhould have… part for himſelf, another for his Clergy, a 3d for the Poor and Strangers, and the 4th to be reſerved to the Pariſhioners for the repairing of Churches; the collection of which dues was committed to the care of the Chorepiſe. from which Quadripartite diviſion probably came that cuſtome whereby the Biſhop of every Dioceſs might before the C. of Lateran make diſtribution of the Tithes within his Dioceſs, where he thought convenient to Spiritual perſons, for their neceſſary maintenancexxBede, lib. 1. cap. 28.. 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 p. 356beginning of a Pariſh, as it is taken for ſu…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,Vid. Edgar's Laws, cap. 1. 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 Wul…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 p. 357Decreed particularly, that Tithes ſhould be duly paid De Garba, Grege Equarum, Hoveden, par 2. cap. de Decim. Eccl…ſ.Pullis, Vaccis, Vitulis, Caſeo, Lac…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, 15 Ed. 3. 5 H. 4. 11.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:10 H. 7. 1… ▪ 43 E. 3. 5. Dr. & Stu…. c. 55. Co. 2. 44. b. Dyer 84. … 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 p. 358was ſettled by the ſaid Council; he ſays, there is not any Canon of that Council to any ſuch purpoſe,Seld. Hiſt. Decim. 231. Co. 2. par. Inſt. 641. 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 Canterbury, to whoſe Archbiſhop it was directed: Lindw. c. nuper Abbates, de Decim. And in the Second Lareran Council, holden An. 1120. (being nigh 60 years before that aboveſaid) it was Decreed by the ſaid Innocent 3. That the Religious perſons, viz. the Ciſtertians, Hoſpitallers, Templers, Sir Tho. Ridley's View of, &c. par. 3. c. 4. Sect. 5.and thoſe of St. Johns of Jeruſalem (which by the Popes Paſchal. and Adrian were exempted from payment of Tithes) ſhould pay the ſame unto the Parochial Incumbents; whereby a Parochial Right of Tithes is ſettled by a Lateran Council.

(11.) At the Common Law it ſeems a Parſon cannot make a Lraſe Parol of his Tithes,Leaſe of Tithes per parol. but may diſcharge them per parol; for in Bellam's Caſe againſt Belthrop it was Ruled by Doderidge, Jones, and Whitlock Juſtices, That where the Defendant in a Trover and Converſion of certain Loads of Fetches, juſtified under the Lord Clare by a Demiſe per parol for Tithes of Grain for one year made in April, that the Leaſe was not good, but altogether void; but the Parſon may diſcharge the Pariſhioner of Tithes per parol, or Leaſe the Rectory conſiſting of Glebe and Tithes per parol for yearsaaMich. 2 Car. Rot. 179. Bellamy verſ. Balthrop. Latch. Rep.Mic 2.

(12.) In Skelton's Caſe againſt the Lady Airie it was ſaid that it was Adjudged Mich. 34 & 35 Eliz. That a perpetual union of the Parſonage, and the Land charged, is a ſufficient diſcharge of the Tithes,Tithes, where diſcharged by Ʋnity of Poſſeſſion. and a Preſcription may be well enough to be diſcharged of the payment of Tithes, as it appears by a Caſe put in the Archbiſhop of Canterbury's Caſe, Coke lib. 2. G. Crook Counſel è contra conceived that a perpetual Unity was no perpetual diſcharge, and ſaid there was no Judgment given in the Caſe cited before; he alſo cited 10 H. 7, or 6. where the manner of Tithing is ſet down; he alſo cited the Biſhop of Wincheſter's Caſe, Coke lib. 2. alſo the Prior of D. to be Reſolved in 40 Eliz. That a Copyholder may Preſcribe to be diſcharged of Tithes by pleading, That he was alwaies Tenant by Copy to a Spiritual Corporation: and he ſaid, That it was Adjudged in Sheddington's Caſe, That if a man Preſcribe to be diſcharged p. 359of payment of Tithes by reaſon of payment of another kind of Tithe, that this is not goodbbSkelton & the Lady Airies Caſe. Lanes Rep..

(13.) The Parſon of D. Covenanted with one of his Pariſhioners that he ſhould pay no Tithes, for which the Pariſhione…r Covenanteth to pay to the Parſon a certain Annual Sum of money, and afterwards the Tithes not being paid,A Parſon Covenants, that his Pariſhioner ſhall pay no Tithe. the Parſon ſued him in the Eccleſiaſtical Court, and the other prayed a Prohibition: And it was agreed, That if no Intereſt of Tithes paſs, but a bare Covenant, then the party who is ſued for the Tithes hath no remedy, but a Writ of Covenant: And the better opinion of the Court in this Caſe was, That this was a bare Covenant, and that no Intereſt in the Tithes paſsccPaſch. 16 Jac. B. R. Fulcher verſ. Griffin. in the Additions to Poph. Rep..

(14.) In Warner's Caſe againſt Barrett in the Eccleſiaſtical Court, it was ſaid by Richardſon, That before the Stat. of Ed. 6. the proper Suit for Tithes was there, and if they allow not one Witneſs to prove payment, a Prohibition ſhall be granted. And he put Morris and Eaton's Caſe in the Biſhop of Wincheſter's Caſe; where it was Ruled, if the Spiritual Court will not allow that Plea, which is good in our Law, a Prohibition lies, as in caſe of TithesddWarner againſt Barret. Herl. Rep. Tithe-Wool and Rottenſheep..

(15.) It was moved for a Prohibition; becauſe a Parſon had Libelled againſt a Pariſhioner for Tithe-wool of Rotten-ſheep, which he ought not to have, becauſe he ſhall have Tithe for the ſame thing at Shearing-time afterwards; as where Tithe is paid for the Cuttin…s of Graſs, it ſhall not be afterwards paid for the After-math. It ſeemed otherwiſe to Doderidge and Jones, becauſe it is for the ſame thing there, but here the Parſon hath no recompence for the Wool. And Jones ſaid, That if the Pariſhioner ſell Sheep, the Parſon ſhall have allowance of the Tithes thereof after the ſhearing: and upon this point a Prohibition was denied. Secondly, there is a Cuſtome, that if a Pariſhioner hath three Calves, he ſhall pay a peny for the Tithe thereof; if ſeven Calves, then one Calf.Tithe-Calves. The Parſon ſued for one Calf, becauſe the Pariſhioner had three one year and four another, and for that he had no Tithe for the firſt three. And thereupon a Prohibition was grantedaaAnonymus. Latch. Rep..

(16.) In Huddleſton and Hills Caſe it was ſaid, That if a man Sue in the Eccleſiaſtical Court for Tithes of Headlands, Headland.the Defendant may have a Prohibition; but he ought then to ſuggeſt, That they are but ſmall Headlands, and that there is a Cuſtome of Diſcharge in conſideration that he paid Tithes in kind of Meadows.Tithe-Wool. And in this caſe Williams ſaid, That if a man keep Sheep in one Pariſh until ſhearing time, and then ſell them into another Pariſh; in this caſe the Vendee ſhall pay the Tithe-wool to the Pariſh where they were depaſtured in the greater part of the time of the growing of the WoolbbHuddleſton. and Hills C, Lane… Rep, Lamb … Wool included in Small Tithes.. And in the Caſe of one Nicholas and W. Ward, it was agreed, That Tithe Lamb and Wool was included within Small Tithescc….

p. 360(17.) In Banco Regis a Prohibition was prayed, becauſe a Parſon had Libelled in the Eccleſiaſtical Court for the Tenth part of a Bargain of Sheep, which had depaſtured in the Pariſh from Michaelmaſs to Lady-day: and the party ſurmized,Tithe Sheep. that he would pay a Tenth of the Wool of them, according to the Cuſtome of the Pariſh. But the Prohibition was denied; for as Doderidge Juſtice ſaid, By this way the Parſon ſhall be defrauded of all, if he ſhall not have his Recompence, for now the Sheep are gone to another Pariſh, and he cannot have any Wool at this time, becauſe it was not the time of ſhearing. Nota, per Whitlock, de animalibus inutilibus, the Parſon ſhall have the Tenth part of the Bargain for Depaſturing, as Horſes, Oxen, &c. But de animalibus Ʋtilibus, he ſhall have the Tithe in ſpecie, as Cows▪ Sheep, &c.ddMichal. 2 Car. B R. Poph. Rep..

(18.) The Rector of the Church of D. Libelled in the Eccleſiaſtical Court for the Tithes of a Riding-Nagg, where the Caſe was,Tithes for a Riding Nagg. That a man lett his Land, reſerving the running of a Horſe for ſome time, when he had occaſion to uſe him there: The Deſendant ſhewed this matter in the Court by his Council, and prayed a Prohibition, and abetts that for the ſame Land in which the Horſe went he paid Tithes. And by the Court, nigh London, a man wil take 100 or 200 Horſes to Graſs; now he ſhall pay Tithes for them, otherwiſe the Parſon ſhall be deſeated. But in this Caſe, if the Deſendant alledge and prove that it was a Nagg for labour, and not for profit, a Prohibition lieseeTrin. 15 Jac. B. R. La…king and Wild's Caſe. Poph. Rep..

(19.) In the Caſe of Bowry againſt Wallington, where W. had Libelled in the Eccleſiaſtical Court againſt B. for the Tithes of Wool and Lamb, and B. upon ſuggeſtion of a Modus Decimandi obtained a Prohibition, and had an Attachment, and declared upon it,Tithes of Wool and Lamb. and are at iſſue upon the Modus▪ which is found for the Defendant, and Conſultation granted; whereupon Judgment was given in the Eccleſiaſtical Court againſt Bowry, upon which B. appealed, and prayed a new Prohibition, and Noy moved for a Conſultation; becauſe that a Prohibition and an Attachment upon it are but one Suit, for the Contempt of the party in bringing his Suit in another Court, and tranſlating this from the Kings Court, and when it is once Tried for the Deſendant, the ſame thing ſhall not be Tried again. Note, That in this Caſe upon the Statute of 50 E. 3. 4. it was agreed by the Court, That a Prohibition awarded, and afterwards Conſultation granted,Where ſeveral Prohibitions may be granted in the ſame Caſe, and where not. that upon the ſame Libel no Prohibition ſhall be granted again; but if there be an Appeal in this Caſe, then a Prohibition may be granted, but with theſe differences, (1) if he that Appe…ls pray the Prohibi…ion; there he ſhall not have it; for then Suits ſhall be deferr'd in infinitium in the Eccleſiaſtical Courts. (2) if the Prohibition and Conſultation were upon p. 361on the body of the matter, and the ſubſtance of it, for otherwiſe he ſhall be put many times to try the ſame matterffPaſch. 1 Car. B. R. B…wry verſ. Wa…ington in the Additions to Poph. Rep..

(20.) The Lord Rich was ſeized of Hadley Park, and of all the Tith…s thereof, and payed for the Tithes but one Buck in the Summer, and a Doe in the Winter for 30 years paſt. The Park was diſparked and turned into arable Land, and the Parſon would not receive this Fee-Buck and Doe, but would have Tithe-Corn, and thereupon ſued in the Eccleſiaſtical Court,Tithes of Park and he brought a Prohibition. And Catlin ſaid, That …e need not pay other Tithes, but Buck and Doe▪ for although they be not Tithable, yet may they be paid by Compoſition,Buck and Doe. not Tithable. What Partridges and Pheaſants not Tithable. and he may not take them, but they ar… to be delivered to him: And in like manner Partridges and Pheaſants in a Garden are not Tithable, yet may they be paid in lieu of Tithes, and ſhall be brought dead to the Parſon; and although there be no Park, yet may he give a Buck out of another Park, and perhaps it may be made a Park againggTri…. 31 Eliz. poſt Winter and Lovedaies Caſe. Owen's Rep..

(21.) The Caſe was, A Church in which there had been a Parſon and Vicar time out of mind, and the Parſon uſed to have the Great Tithes, and the Vicar the Small, and for the ſpace of forty years laſt paſt, it was proved that the Parſon had Tithes paid him out of a Field of twenty acres of Corn, and now the Field is ſowed with Saffron, and the Vicar ſued for the Tithes of Saffron in the Eccleſiaſtical Court, and the Parſon had a Prohibition. Coke, I conceive the Parſon ſhall have the Tithes,Tithe of Saffron. for by the Statute of 2 H. 6. it is Enacted, That Tithes ſhall be paid as hath been uſed the laſt forty years, and this hath been alwaies Tithable to the Parſon, and although the ground be otherwiſe employed, yet the Parſon ſhall have the Tithes: And ſo was it in Norfolk in the caſe of a Park, where the Parſon preſcribed Pro modo Decimandi to be paid 3 …. 4 d. for all Tithes ariſing out of the ſaid Park, and although the Park was afterwards converted to Arable, yet no other Tithes ſhall be paid. Popham, It hath been adjudged otherwiſe in W…oth's Caſe in the Exchequer. But the Law is clearly as hath been ſaid; and the difference is,Tithes of a Park. Veniſon not Tithable. when the Preſcription is to pay ſo much money for all Tithes, or when the Preſcription is to pay a ſhoulder of every Buck, or a Doe at Chriſtmas; for there if the Park be diſparked Tithes ſhall be paid, for Tithes are not due for Veniſon, and therefore they are not Tithes in ſpecie. Saffron is ſmall Tithes.And I conceive, that Tithes of Saffron-heads ſhall be comprehended under Small Tithes; and although the Tithes of this Field have been paid to the Parſon, yet it being converted to another uſe, whereof no groſs Tithes do come, the Vicar ſhall have the Tithes: And ſo if arable Land be converted into an Orchard, the Vicar ſhall have Tithes of the Apples; and ſo if the Orchard be changed to Arable, the Parſon ſhall have Tithes. Quod Fenner conceſſit hhPaſch. 38 Eliz. B. R. The Caſe of the Dean and Chapter of Norwich▪ Owen's Rep..

p. 362(22.) In one Hawkin's Caſe, Libel was in the Eccleſiaſtical Court for Tithes for Lambs for ſeven years: And there he proved payment by one Witneſs, and a Prohibition was granted for Non-allowance of that ProofiiWarner againſt Barret. Hetl. Rep..

(23.) On the Stat. of 2 Ed. 6. c. 13. for ſetting out of Tithes, the Caſe was this: Corn was ſet out …or Tithes, and the Owner of the Land took the Corn Dammage feaſant▪ but in the Declaration it is not ſhewn how long the Corn remained on the ground.Tithe Corn. And by the Court, it is not good, inaſmuch as it doth not appear that the Owner of the Land had any Dammage at all, for he doth not ſhew how long the Corn remained on the ground. And the uſual courſe in ſuch caſes is, if Tithe be ſet out, and the Parſon take it not away in due time, the party ſhall have an Action on the Caſe. By the Court, a man cannot diſtrain Shocks of Corn, but he may diſtrain a Stack Dammage feaſant. But in this caſe it is not ſhewn how long it remained on the ground, and therefore it doth not appear that he was damnified. And ſo after the Tithe is clearly ſet out, the Parſon may by the Statute have an Action of Treſpaſs, if any take them away; but if only a meer Stranger ſet out the Tithe, that ſettles no property in the Parſon, ſo as that he cannot have any Action for the taking thereof awayaaHill. 1 Car. 1. B. R. Stilman verſ. Chanor. Latch. Rep..

(24.) It ſeem'd clear to Noy, that if Two perſons have portions of Tithes by halves in one Pariſh, the Stat. of Ed. 6. that appoints Tithes to be ſet out, doth not in that caſe oblige the Pariſhioner to divide the Tithes by halves, and to ſet out their parts ſingly; but the Pariſhioner ought only to ſet out the Tenth, inſomuch that if the Tithe be of one Lamb, the Pariſhioner cannot divide itbbCaſe Stilman verſ. Cremer.. And it hath been Adjudg'd, that the Pariſhioner is not bound to divide the Tithe into Moities, but the Parſons ſhall divide it between themſelvesccDict. Caſ. in alia Nar…at. Latch. fo. 228..

(25.) Noy ſurmized againſt a Libel for Tithe-Sheaves, that the Pariſhioners are at the charges to bind the Corn in Sheaves, and for the better dividing thereof they uſe to make it up into Sheaves: and when it is made into Shocks, they put thereof into a Stack for the Tithes. And for that the Pariſhioners have been at this pains, they have uſed to be diſcharged of Tithes for the odd Sheaves,No Tithe of odd Sheaves. when they will not make a Stack. Adjudg'd a good Cuſtome: and a Prohibition was granted, becauſe the Pariſhioners therein do more than of Common right they are obliged untoddAnonymus. Latch. Rep..

(26.) The Caſe touching Tithe of Glebe-Land, Reported (as aforeſaid) by Leonard to be between Stile and Miller, is the ſame with that Reported by Owen to be between Stile and Miles, miſprinted: But the Caſe was this; Stile Parſon did ſuggeſt, That the Land was parcel of the Glebe of the Parſonage,Tithe of Glebe. and that the ſaid p. 363Stile did Lett the ſaid Glebe, being twenty four acres to Miles for years, rendring thirteen ſhillings four pence Rent: and in a Prohibit on the Caſe was, if Tithes were to be paid. And Wray ſaid, That although it was parcel of the Glebe, yet when it was Leaſed out Tithes ought to be paid without queſtion: But there may be a doubt where the Rent is reſerved to the true value of the Land; but here the Rent is of ſmall value, wherefore Tithes ſhall be paid alſo. And the Reſervation of the Rent was Pro omnibus exactionibus & demandis; yet the Juſtices took no regard of theſe words. But Godfrey ſaid, that thoſe words would diſcharge him: But Wray on the contrary, for that this Tithe is not iſſuing out of the Land, but is a thing collateral; and if a Parſon do Releaſe to his Pariſhioners all demands in the Land, yet Tithes are not thereby Releaſed, for ſuch general words will not extend to ſuch a Special mattereeCaſe Stile againſt Miles. Owens Rep..

(27.) A. Parſon of B. in conſideration of 120 l. paid by C. one of his Pariſhioners, did accord and agree with him, That he and his Aſſigns ſhould be diſcharged of Tithes during the time that he ſhould be Parſon. C. made a Leaſe to D.—A. did Libel againſt him for Tithes, and D. pray'd a Prohibition upon the ſaid Contract. And if this were ſufficient matter for a Prohibition, was the queſtion, becauſe it was by word only, and without writing, which amounts only to a Cauſe of Action upon a Promiſe for C. but no Action for his Leſſees: neither can this amount to a Releaſe of Tithes; for as Tithes cannot be Leaſed without Deed, ſo they cannot be Releaſed or diſcharged without Deed. Gawdy Juſtice, Tithes cannot be diſcharged without Deed, unleſs by way of Contract for a Sum of money, and he cited the 21 H. 6. 43. Fenner, for that year in which the Diſcharge was made, it was good by way of Diſcharge without Deed, becauſe the Parſon for that year had as it were an Intereſt, but ſuch Diſcharge can have no continuance for another year, for default of a Deed: and ſo a Promiſe being no Diſcharge, it is no cauſe of a Prohibition. But Gawdy held as afore. And the Court (Popham ſucceeding Wray Chief Juſtice, upon his death) held, that the Agreement being by parol, was not good: and Fenner then ſaid, That without Writing the Agreement could not be good between the parties, but for one year. And the Court awarded a Conſultation. But upon ſearch made no Judgment was entered in the RollffPaſch. 5 Eliz. B. R. Woodward againſt Nelſon..

(28.) Note, That in Layton's Caſe it was ſaid by the Court,Owens Rep. That a Parſon may ſue pro modo Decimandi in the Eccleſiaſtical Court. As if a Pariſhioner will not put his Tithes into Cocks,Modus Decimand. when he ought by the Cuſtome ſo to do. But then the Suit ought to be Special for not putting it in Cocks, and not generally for not ſetting forth the TitheggLayton's Caſe. Latch. Rep..

p. 364(29.) It was likewiſe agreed by the Court in Clark's Caſe againſt Pro…ſe, that the Eccleſiaſtical Court may take cognizance of a Modus Decimandi: The Caſe was this; Clark a Parſon ſued Prowſe, one of his Pariſhioners per mod. M…dus Decima…d.Decimandi in the Eccleſiaſtical Court, and alledged a Cuſtome in his Bill (ſo called in the Report) to have two ſhillings of the pound for every Houſe and Shop in the Town: and upon that Suit the Defendant there anſwered to the Cuſtome, Quod non credit eſſe vera. And ſo to have here a Prohibition it was alledged, That the Defendant was a Butcher, that ſet open Stall in the Market only to fell Fleſh there, and that he had not any other Shop or Houſe. And it was agreed by the Court, That a Parſon may ſue per mod. Decimandi in the Eccleſiaſtical Court: But if it be denied, the Chief Juſtice as alſo Jones ſaid, That in that caſe they could proceed no further; becauſe they cannot try matters of Preſcription there, and if they proceed, a Prohibition: But in this Caſe the Prohibition was denied, becauſe Doderidge ſaid, That for the Reaſons ſupra, power is given to the Spiritual Court to examine that matter; becauſe it is not a denial of the Preſcription, but it ought to be by AllegationbbClark verſ. Prowſe. Latch. Rep..

(30.) It was ſaid in Catesby's Caſe, That if a Copyholder of the Kings Mannor pretendeth Preſcription for a Modus Decimandi againſt the Parſon,Modus Decimandi. the Right of Tithes ſhall be tried in the Exchequer, and a Prohibition was granted to the Eccleſiaſtical Court in this CaſeccPaſch. 7 Jac. in the Exchequer, Catesbie's Caſe. Lano's Rep..

(31.) In Pool's Caſe againſt Reynold, Preſcription to have Deer out of a Park in diſcharge of all Tithes, and after the Park is diſparked: P. brought a Prohibition againſt R. the Surmiſe was, That de temps d'ont memory, &c. within the Pariſh of C. there was a Rectory appropriate, and the Chappel of S. annexed therewith. Et una Vicaria perpetua ejuſdem Eccleſiae de C.Preſcription. Tithe of a …. dotat. And whereas the ſaid P. …or ſix years laſt paſt had occupied one Houſe, 100 acres of Land, 20 of Meadow, 40 of Paſture, called Shute-Park within the ſaid Pariſh of C. which ſaid Tenements were anciently a Park, and now diſparked, &c. and converted into the ſaid Houſe, 100 acres, &c. And that all the Occupiers of the ſaid Park de temps d'ont memorie, until the Diſparking had paid to the Vicar there, one Buck of the Summer-ſeaſon, and one Doe of the Winter-ſeaſon, &c. in diſcharge of all Tithes of the ſaid Park, until the Diſparking; and after the diſparking in diſcharge of all Tithes of the ſaid Tenements, which they had accepted for all the time aforeſaid, until the Diſparking and after, or otherwiſe agreed with the Vicar for them: and traverſed this Preſcription, and found for the Plaintiff. In Arreſt of Judgment it was moved by Henden, That this Preſcription extends to the Land quatenus it is a Park, and that p. 365being deſtroyed, the Preſcription is gone, &c. and if it be to be paid or delivered out of the Park, then it is determined. vid. Lutterel's Caſe, Coke lib. 4. Alſo this Preſcription is againſt the benefit of the Church, and ſhall not be enlarged; and the Wood which is ſold out of the Park,Preſcription. Tithe of H…. ground. ſhall not be diſcharged 14 Jac. Conyer's Caſe in C. B. Preſcription, That the Parſon had two acres of Meadow given in diſcharge of all Tithes of Hay-ground, viz. of all the Meadow in the Pariſh, if any Arable Land be converted into Meadow, it extends not to diſcharge that. vid. Lutterel's Caſe, Coke lib. 4. fo. 8…. That an Alteration in prejudice to the Parſon determines the Preſcription. vid. Terringham's Caſe, lib. 4. He which hath Common purchaſed part of the Land, all is extinct, for it is his own Act: but vide the principal Caſe in that of Lutterel adjudged, That building of new Mills in the ſame place, and converting of Fulling-Mills into Corn-Mills,Tithe of Mill… alter not the Preſcription: And he cited a Cauſe which was in this Court argued at Barr, and afterwards at Bench, between Cooper and Andrews, Mich. 10 Jac. Rot. 1023. for the Park of Cowhurſt. Vid. 32 E. 1. Fitz. Avowry 240. 5 E. 2. Fitz. Annuity 44. 20 E. 4. 14. 14 E. 4. 4. But this Caſe was adjudged for the Plaintiff, Quod ſtet Prohibitio: and that which is by the name of Park is for the Land, and is annexed to the Land by the name of Park; if the Preſcription had been to pay a Buck or a Doe out of the Park, then it would alter the Caſe: But it is general, and had been paid alſo after the Park diſparked. And the Caſe of Cooper and Andrews, was a ſhoulder of every third Deer that was killed in the Park, and two ſhillings in money, and that Caſe was never AdjudgedddMich. 10 Jac. C. B. Ro…. 64… Pool verſ. Reynold. Hu…. Rep..

(32.) V. brought Treſpaſs againſt T. Clerk, Vicar of A. for taking Bona & Catalla, and count for the taking of two Carectac. glaci, Anglicè Wood: And upon Not guilty pleaded, the Jury gave this Special Verdict, viz. Tithe Wood, What th…gs are Small… Tithes, and what Great.for the Moity of a Load of Wood, Si videbitur Curiae quod Decimae glaci ne ſunt Minutae Decimae, then the Defendant Not guilty; but Si ſunt Minutae Decimae, then he is Guilty. This Caſe was argued at Barr by Bridgman and Henden Serjeants: And the Court Ʋnement agreed, That for ought that here appears, this Verdict being found without any Circumſtance, that this Wood ſhall be taken to be Minutae Decimae. It was agreed by Henden, That if it had been found Wood growing in a Garden, then Minutae Decimae. And it was agreed by the Court, That it might have been ſo found, that it ſhould be Majores Decimae, and Praedial; as if all the profits of the Parſonage conſiſt of ſuch Tithes. And ſo of other things, which in their own nature are Minutae, may become Majores, if all the profit of the Pariſh conſiſt therein: As in ſome Countries, a great part of the Land within the Pariſh p. 366is Hemp, or Lime, or H…ps; there they are Great Tithes, and ſo it may be of Wool and Lambs. Paſch. 3 Jac. B. R. in Beddingfield's Caſe, Farmer to the Dean and Chapter of Norwich, who had the Parſonage Impropriate, and had uſed to have Tithes of Grain and Hay, and the Vicar had the Small Tithes:Tithe-Saffron. And a Field of 40 Acres was planted with Saffron: and it was Adjudged, That the Tithes thereof belong to the Vicar. There was a Caſe in this Court, as it was vouched by Henden, Tithe-Hops.3 Jac. between Potman a Knight and another: And the Queſtion was for Hops in Kent, and Adjudged that they were great Tithes; but as for Hops in Orchards or Gardens, theſe were Reſolved to belong to the Vicar …s ſmall Tithes.Tithe-W…ld. There was a Caſe in this Court for Tithe of Weild, which is uſed for Dying, and that was in Kent, and it was ſown with the Corn, and after the Corn is reaped, the next year without any other manurance, the ſaid Land brings forth and produces Weild: And that was a Special Verdict, whether the Vicar ſhall have the Tithe of it, or the Parſon; but one of the parties died before any Judgment.Tithe. Tobacco. And if Tobacco be planted here, yet the Tithes thereof are Minutae Decimae: And all theſe new things, viz. Saffron, Hops, Weild, &c. if it doth not appear by material Circumſtances to the contrary, ſhall be taken as Minutae Decimae: And ſo this Caſe was Adjudged for the DefendanteeHill. 21 Jac. rot. 705. C. B. V…ed…ll verſ. …. Hutt. Rep..

(33.) In the Caſe of a Prohibition, in caſe of a Libel in the Eccleſiaſtical Court for the Tithes of Cattels; the Plaintiff alledged that thoſe Cattel, of which Tithes were demanded, are for his Dairy, and for the Plough; and Winch being only preſent ſaid, That the Parſon ſhall not have Tithes of ſuch Cattel; but if he breed up Cattel to ſell it is otherwiſe. Secondly, the Plaintiff in the Prohibition alledged, That time beyond memory the Pariſhioners had paid a hal… …or the Tithe of a Calf, and a peny for a Cow; and that upon a day limited they uſe to bring this to the Church, and to pay this to the Vicar; and now the Vicar had Libelled in the Eccleſiaſtical Court againſt them, to compel them to bring it home to his houſ…: And Winch ſaid, That this is no occaſion of a Prohibition, for they agree in the M…dus, but vary in the place of payment, and this is not matter of ſubſtance, and for that reaſon no Prohibition will lieffTrin. 20 Jac. C. B. poſt Caſe W…gift verſ. Sr. Fran. Barrington. W…ch. Rep..

(34.) B. brought a Prohibition againſt C. and alledged, that the Dean and Chapter of D. was ſeized of the Mannor, and the Defendant being Vic…r ſued in the Eccleſiaſtical Court to have Tithes, and ſhewed, that time beyond Memory, &c. they had held that Diſcharged of Tithes for them and their Tenants, and that they lett that to the Plaintiff. And it was moved by Henden Serjeant, That the Dean and Chapter are a Body Politick and Temporal, which are not capable of this Preſcription in non Decimando, Coke 2. the Biſhop of Wincheſter's Caſe. Hobart ſaid, That the Dean and Chapter are a p. 367Body Spiritual, and are annexed to the Biſhop throughout all England; and if the Biſhop is capable of that, as it is plain he is, then the Dean and Chapter is alſo capable of that, which was granted by Hutton: but Winch doubted, for he ſaid, That he-may be a Layman, and for that the Plaintiff ought to averr, That he is a Spiritual perſon: Hutton confeſſed, That the Dean may be a Lay-man, as was the Dean of Durham by ſpecial Licenſe and Diſpenſation of the King; but that is rare, and a Special Caſe, and is not common, and general, and therefore not to be brought as an Example, which was alſo granted by Hobart Chief Juſtice, and upon that day was given over to the Defendant to ſhew cauſe wherefore the Prohibition ſhall not be grantedggPaſ…. … Jac. C. B. Brigg's Caſe. Win…l-Rep..

(35.) A. Libelled againſt W. in the Eccleſiaſtical Court for the Herb…ge-Tithe of young Cattel, ſ…il. for a peny for every one. And Hitcham moved for a Prohibition: and ſaid, that he ought not to have Tithes,Tithe of C…ttel. if they are young Beaſts brought up for the Cart or Plough. And ſo it hath been Adjudged: As it a Parſon preſcribe to have Tithes for Hedgingſtuff, he cannot, becauſe that preſerves the Land out of which he had Tithes;Tithe. Hedgſtuff. and then a Parſon Libels for Tithes of an Orchard, for that it was a young Orchard; and the Cuſtome of the place was,Tithe-Orchard. to pay 4 d. for an Orchard. Hitcham ſaid, There is not any ſuch difference between old and new Orchards, for i… the Cuſtome be that he ſhall pay 4 d. for every Orchard, it will reach to the new Orchard. And then he Libels for a Hearth-peny, for the Wood burnt in his houſe. Hutten ſaid, The Hearth-peny is more doubtful; for it is a Cuſtome in the North parts to give an Hearth-peny for Eſtovers burnt;Tithe-Hearthpeny. for which he preſcribes to be free of every thing which comes to the Fire. And in ſome parts by the Cuſtome they had Paſturage for the Tenth Beaſt, or the Tenth part of the Gains, which is Barren for the time. But he and Yelverton, who only were preſent, That no Tithes are due for them without Cuſtome. Hitcham, They alſo will have Tithes for a thing before it comes to perfection, which would be Tithable afterwards: But I agree, if he fells them before they come to perfection, then the Parſon ſhall have Tithes But by Hutton and Yelverton, there may be a Cuſtome to have every year a peny for them. Sed adjournatur, &c. hhPaſ…. 4 Car. C. B. Woolmerſton's Caſe. H…l. Rep..

(36.) A. Libels in the Eccleſiaſtical Court for Tithes of Fiſ…, which is due meerly by Cuſtome; and the Defendant pleads, That time out of mind, &c. they have paid no Tithes of that. And Henden Serjeant moved for a Prohibition.Tithe. Fiſh. And Richardſon Replied and ſaid, It is meerly a Cuſtomary Tithe, as Rabbits, &c. whereof no Tithes are due by the Law of the Land, and a Prohibition ſhall not be granted. But all the other Juſtices affirmed, That there ſhall be a Prohibition granted, p. 368becauſe that the Cuſtome ought to be tried at the Common Law, and they make a difference between Modus De…imandi, which is alſo Cuſtomary, and where there is a Tithe precedent due, and that Modus converts it into another duty: There no Prohibition ſhall be granted; but it ſhall be Tried in the Eccleſiaſtical Court, whether there be ſuch a Modus Decimandi or not; and that Caſe in the Cuſtome makes the Duty it ſelf. But if he alledged the Modus to be for two pence, and the Parſon for three pence, it ſhall be tried by the Common Law. And they ſaid, That ſo was the opinion in the grand Caſe of Lead-Ore. And Hutton ſaid, That ſo it was determined in the Caſe of one Berry, for Tithes of Lime-kil…s, which are as Minerals, and are not Tithable by the Common Law. But when the Cuſtome is tried, then they in the Eccleſiaſtical Court may proceed upon itiiPaſch. 3 Car. …. B. Caſe of Tithes in Hetley's Rep..

(37.) A Parſon Libells in the Eccleſiaſtical Court for Tithes of Pidgeons and Acorns: And the Defendant prayed a Prohibition; becauſe the Pidgeons were ſpent in his own houſe, and the Acorns dropt from the Tree, and his Hoggs eat them. And it was ſaid by the Court, Acorns are Tithable 11 Rep. 49. but then they ought to be gathered and alſo ſold. And a Prohibition was clearly granted kkTithes of Pidgeons and Acorns. Ant… Wilco…k's Caſ. in …et…. Rep..

(38.) B. Farmer of a portion of Tithes for five years, without Deed, Demiſes a Farm which he had in the ſame Pariſh to F. for years; and afterwards he Libells againſt him in the Eccleſiaſtical Court for the Tithe of that Farm. And F. ſaid, he was not Farmer. And Henden prays a Prohibition for that, (1) That the Leaſe for Tithes is without Deed: but he may be Diſcharged of his own Tithes without Deed,Diſcharge of Tithes. as was Adjudged before in this Court. (2.) The Leſſee is not to pay Tithes for the Farm; for although the Parſon makes a Leaſe of the Gl…be for years, he paid Tithes: But if a Lay-man who had the Impropriation Leaſes the Gl…be, the Leſſee does not pay Tithes. But the Court denied the Caſe of the Leaſe of the Parſonage Impropriate; and ſaid, That the Caſe of Perkins and Hinde was Adjudged to the contrary in that very point. And alſo if he purchaſe other Lands in the Pariſh (which are diſcharged of Tithes in his hands) and he Demiſes them, yet the Leſſee pays him Tithes. And the Opinion of the Court was, If one contract with the Parſon for Diſcharge of the Tithes of his Lands for years, and Demiſes his Lands to another; yet he ſhall not have Tithes, but the Diſcharge runs with the Land. But if one take a Leaſe of his Tithes by Deed, and makes a Demiſe of his Land, he hath Tithes of the Leſſee. And the Direction was, That the Leſſee of the Farm ought to ſhew expreſly in the Eccleſiaſtical Court, that the Farmer had not a Leaſe by Deed: and a Prohibition was p. 369granted. And it ſhall be Admitted, That the words of the Libel being Firmator, Conductor, & Occupator was goodllBooth againſt Franklin. Hetl. Rep..

(39.) W. againſt S. in a Prohibition, in which S. Libels for Tithes of Hay. And W. ſuggeſts for a Prohibition, That he uſed to pay the Tithe for Hay inſpecie, Tith… Hay of Headlands.in conſideration whereof he uſed to be Diſcharged of all Doles, Green-skips, and Headlands, not exceeding the breadth that a Plough or a Team might turn about the Lands. And Henden moved for a Conſultation; for that it is ſaid, about, &c. that is, circa terras arabiles, when the truth is, there are Skips at the ſide of Lands, as broad as the Lands themſelves; and then he would be diſcharged of them alſo, whereas it ought to be at the end of the Headlands only. Richardſon ſaid, That in arable Lands incloſed, Paſture is at the end and at the ſides, which is mowed, and yet diſcharged of Tithes. But the Court in reſpect there was a Prohibition granted, ſaid, That he ought to joyn Iſſue or Demurr upon the DeclarationmmMich. 3 Car. …. B. Wood againſt Symons. Hetl. Rep.Mic 3.

(40.) The Earl of D. had a Mannor in the Pariſh of C. which extended to L. where there is a Chappel of Eaſe; and the Vicar of C. Libels for Tithes in the Eccleſiaſtical Court, againſt one of the Tenants of the Mannor. And Henden moved for a Prohibition, for that that the Earl preſcribed, That he and all his Tenants ſhould be acquitted of all the Tithes of Land within L. paying 10 s. per ann. to the Chaplain of L. And he ſaid, that ſuch a Preſcription is good, as it was Adjudged in Bowles Caſe. And a Prohibition was grantednnThe Vicar of Cheſham's Caſe. Hetl. Rep..

(41.) In Comin's Caſe it was agreed by the Court, That a Foreſt in the hands of a Subject ſhall pay Tithes; and it was agreed, that in the hands of the King it is Priviledged.Tithe of Foreſts. And by Henden, Davenport, and Atthowe Serjeants, It is only his perſonal Priviledge, which extends to the Leſſee of the King, but not to the Feoſſee. And it was agreed, That where the right of Tithes comes in queſtion between a Parſon and the Vicar, who are both Eccleſiaſtical perſons, it ſhall be Tried by the Eccleſiaſtical Court. But Richardſon ſaid, the Books make a doubt, where it is between the Servant of the Vicar and the Parſon. But it ſeemed to him to be all oneooComin's O. Hetl. Rep..

(42.) N. and D. Plaintiffs againſt H. Vicar of S. in a Prohibition: the … was for Wood employed in Hedging, and for Fire-wood: Iſſue was joyned, That there was in the Pariſh a great quantity of Land incloſed;Tithe Hedgboot and Fireboot. and that they uſed to take Wood for Hedge-boot and Fire-boot, and they were diſcharged of Tithes, in conſideration that he paid Tithes in kind of Hay and Corn, &c. And it was found for the Defendant. Crawley moved, That a Conſultation cannot be granted, for that that they ought to be acquitted of Tithes for thoſe p. 370of Common Right, and for that although Preſcription was alledged, it is nothing to the purpoſe. Atthowe, For Fire-wood it was proved that Tithes alwaies was paid. Richardſon, there is no doubt but the diſcharge alſo ought to be by Cuſtome, and to be grounded upon Modus Decimandi. Yelverton and Crook otherwiſe, that it is not upon Modus Decimandi, but by the Common Law; and the Reaſon is, for that that when a man is Owner of Arable Land, and he pay Tithe-Milk and Corn, and for that they are diſcharged of things conſumed in the Houſe, which are to make Maſters and Servants fit to manure the Land, &c. Richardſon ſaid, It is ſeen that it ſhall alwaies be Diſcharged, in conſideration it is alledged, how a ſmall Conſideration will ſerve. Crook, It is not Modus Decimandi, but the Diſcharge is for that, that the Parſon hath by them a benefit, for he had by them better means of Tithes. Hutton, If a man had a Houſe of Husbandry, and Demiſes all the Land but the Houſe, he ſhall pay Tithes for them abſumpt in the Houſe. Crook, Not. No profit is made by them to the party; but the Parſon had a benefit by him. And a day was given to ſearch Preſidents ppPaſch. 4 Car. C. B. Norton and …u…ke… 's Caſ. Hetl. Rep..

(43.) A Parſon Libels for the Tithes of young Cattel preſerved for the Cart, and the Queſtion was, whether in ſuch Caſes a Cuſtome ought to be ſurmized.Tithe of young Cattel.. And Crook, F. N. B. is, That of right Tithes ſhall not be paid for ſuch things. Richardſon, In all ſuch Caſes the Parſon ought not to have Tithes, if there be not a Cuſtome alledged, by which the Parſon had any thing, or Recompence, or by which his other Tithe is better. And he ſaid, That he had ſearched the Books, and the Book of Entries; and there is not any ſuch Caſe, but ſome Surmize is made, as for that, that he had Tithe of Corn in ſpecie where the Land is encloſed; and ſo the Corn better. Hutton, It ought to be Tried, whether the thing in his nature be Ti…hable, or any Uſage to diſcharge it or not, as the Cattel are in their nature Tithable, then you cannot prohibit it; but the Uſage ought to be ſurmized ſo: And it may be Law, as the Parſon had better Tithes. Harvey, Tithes of …edging and Fencing. Tithes of Heifers-…erbage.If a Libel be for Tithes of Hedging and Fencing, there a Surmize ought to be made to diſcharge that. But when it is for Tithes of Heifers, which in apparency ought to be ſpared by the Law of the Land, otherwiſe it is, &c. Richardſon, for the Herbage of thoſe Heifers Tithe is due by the Eccleſiaſtical Law; and we never can take Tithe of them without expreſs Cuſtome or other Recompence. Harvey, there was a Caſe, 16 Jac. C. B. A Pa…ſon ſues for the Herbage of Horſes,Tithes of Herbage for Horſes. and the Pariſhioner alledged, That he kept them for the carrying of Coals; there he ought to ſurmize ſomething to be Diſcharged: and if he alledge, That he kept them in his Houſe for ſerving of Husbandry, the other may alledge, That p. 371he kept them to carry Coals, and the Allegation is Traverſable. Richardſon, Tithes of Herbage for a Riding Horſe.There was a Caſe, where the Queſtion was, A Huſbandman keeps a Horſe to ride up and down about his buſineſs, Whether he ſhall pay Tithe for the Herbage of him, and a Prohibition was in that Caſe granted; but a Surmize ought to be made. Crook ſaid, That in the Kings Bench he had twenty times ſeen a Prohibition granted in ſuch Caſes,Tithe of dry Cattel. without any Surmize. And a Libel is for dry Cattel; if it be alledged, That they are kept for the Plough, the other may alledge, That he keeps them to ſell, without that, that he keeps them for the Plough. And before there is any profit of them, it is not reaſon that they ſhould be Tithable, and the Parſon ſhall have the benefit for them after. And for Hedging it is Lex terrae, that he ſhall pay no Tithes. Richardſon, It is Lex terrae ne conſuetudo loci facit legem terrae. And if he had uſed to pay Tithes for the Cattel or for Hedging,Tithes of Hedging. he ought not to pay that ſtill: If an ignorant man will pay Tithes for thoſe things, and after upon a Libel a Prohibition is granted; if the other does not alledge a Cuſtome, the Prohibition ſhall ſtand: or if they alledge a Cuſtome, which is …ound againſt him, no Conſultation ſhall be granted.…arden-Tithes. And for a Garden-peny, the reaſon of that is apparent: for otherwiſe Tithes ſhall be paid in ſpecie: And ſo for Hearthpeny, if he had alwaies paid it, it ought to be paid. Hutton, If a man had an Ancient Garden for which he paid a peny, and that is enlarged, of that enlargement Tithes ought to be paid in ſpecie qqPaſch 4 Car. C. B. Thornill's Caſ. Hetl. Rep..

(44.) A. Libels againſt B. in the Eccleſiaſtical Court for the Tithes of two Pecks of Apples, and for Feeding the Cattel upon the ground. The Defendant for the Apples anſwered, That there were Two pecks only growing in his Orchard,Tithe-Apples. and that they were ſtoln, and never came to his uſe; and for the Cattel, That they were Ancient Milch-Beaſts,Tithe-herbage of Cattel. and that they growing old were dry: And that for a month they depaſtured with other Heifers, and that after they put them in a Meadow, out of which the Hay was carried; and afterwards he fed them with Hay in his Houſe. Atthowe, Becauſe that the Anſwer was not admitted, prayed a Prohibition. Hutton, If Apples are upon the Trees, and taken by a Stranger, ſhall the Parſon be hindered of his Tithe? Yelverton, If I ſuffer one to pull my Apples the Parſon ſhall have Tithes; but if they be taken by perſons not known, the Parſon ſhall not have Tithes of them; which was granted: For they are not Tithable before plucking; and for that, if he ſuffer them to hang ſo long by negligence, after the time, that they are imbelized, by Yelverton he ſhall pay Tithes. For the ſecond matter it was Agreed by the Court, and for the depaſturing in p. 372the Meadow, and for the Hay with which they were fed afterwards, Tithe ſhall not be paid, becauſe that the Parſon had Tithes of them before. But if the queſtion be for the Tithes when they went with the other Heifers,No Tithe of Paſture of Milch-kine grown dry, unleſs kept for ſale. by Crook, that is no cauſe to excuſe the Tithe. Harvey, If I have Ten Milch-kine, which I purpoſe to reſerve for Calves, and they are dry, the Parſon ſhall not have Tithe for their Paſture; but if I ſell them, by which it appears I kept them for Fatting, there Tithes ſhall be paid. And Hutton agreed, That although there was ſo ſmall a time, that they went with the Heifers, yet Tithes ſhall be paid for their paſture during that timerrCaſe upon a Prohibition in Hetley's Rep. poſt Caſ. Regis verſ. Archbiſh. of Canterbury..

(45.) In Walſingham and Stone's Caſe it was ſaid by Hutton, That a Pariſhioner compounding for his Tithes for his life was not good without Deed. And it was ſaid by Yelverton, that the uſe in the Kings Bench is,Compoſition for Tithes. That if a Defendant in a Prohibition dies, his Executors may proceed in the Eccleſiaſtical Court; and it may be a Rule for the Judges in that Court to proceed alſo. And then the Plaintiff may, if he will, have a new Prohibition againſt the Executors, &c.

(46.) In Norton's Caſe Fin…h Recorder ſaid, de Communi jure for Eſtovers burnt in an Houſe Tithes ought not to be paid; by the Common Law there was not any Tithes paid for Wood: And although the Statute of 25 E. 3. gives a Prohibition for Timber, yet Ʋnder-woods were diſcharged of Tithes.Tithe-Wood. Vid. Dr & Stud. 171. It is expreſs that Eſtovers are not Tithable, becauſe they are not renewing every year, and it is parcel of the Inheritance, for to deſtroy all the Underwoods is Waſte, &c. Dawley's Caſe was Reſolved for the Wild of Suſſex: and Mich. 13 Jac. B. R. in the Caſe of Porter and Dyke for the Wild of Kent of the ſame Preſcription, Reſolved to be good; and ſo is the Common Experience, that a whole County may Preſcribe ſo. And the reaſon is, for that by the Common Law it was not due; but by the Conſtitution of Winchelſey, Lindwood 104. it was Ordained to be paid; for then the Prelates imputed a great Peſtilence that then was, for the negligence of paying Tithes, and appointed Tithes of Wood. And the Commons were deſirous to have the Statute of Sylva, &c. otherwiſe explained than the Clergy declares it; for they ſay, that they ought not to pay Tithes of any Wood that is of the growth of ten years. Hutton, Wood is Tithable in their nature, and then there may be a Cuſtome to diſcharge them. And the Caſe of Hearthpeny cannot be anſwered; for if he Sues for the peny, a Prohibition ſhall not be granted, quod conceſſum fuit per Crook & Yelverton. But of things not Tithable, Tithes of them cannot be ſued without alledging a Cuſtome. Crook, It is known that Hearthpeny is good by Preſcription: p. 373This Caſe is when there is not Land belonging to the Houſe,Hearthpeny, what▪ ſo that the Parſon is not anſwered for his Tithes another way. But when there are Ten Servants kept for the maintaining it, then by the Law of the Land it appears that Tithes ought not to be paid; although Cuſtome had been alledged it is nothing to the purpoſe, As if a Cuſtome be alledged to pay 4 d. for every Acre in diſcharge of Tithes, and the Verdict find 3 d. no Conſultation ſhall be granted. Hutton, the Herbage of Barren Cattel is Tithable, becauſe there is a Cuſtome which diſcharges thoſe that are for the Cart.Tithe herb…ge of Cattel. And he ſaid, That the Cuſtome only makes that Legem terrae. And he cited Dr. Grauut's Caſe: He Libels for Tithes of a Houſe, and the party brought a Prohibition, and alledged Modum Decimandi, &c. And it was alledged in Arreſt of Judgment, that Houſes were not Tithable de Communi jure, and yet a Conſultation was granted, &c.ssTrin. 4 Car. C. B. Norton's Caſe. He…l. Rep..

(47.) A Caſe between Stone and Walſingham having been formerly in the Court touching Tithes, the Caſe was again moved in Court, which was that they agreed de anno in annum ſo long as the one ſhould be Parſon, and the other Pariſhioner, Si ambabus partibus tam diu placuerit, he ſhould retain his Tithes for 6 s. 8 d. per An. And Richardſon Juſtice ſaid, and it was not denied, That the Suggeſtion is naught for the uncertainty of it; and a Prohibition cannot be granted upon that. For the words de ann… in annum make an Eſtate for a year;▪ and the next words make an Eſtate for Life; and the laſt words, but an Eſtate at Will: and what ſhall be Traverſed here? It appears, that for Years it is good without Deed, but not for life; and if it be but at Will, when the other demands his Tithes, the Will is determined. But at another day the Suggeſtion was made, That he made ſeveral Agreements with his Pariſhioner, that he pay 6 s. 8 d. for his Tithes for four years. And then a Prohibition was granted. Harvey, ſufficit, If an Agreement be proved for theſe four yearsttStone againſt Wallingham. Hetl. Rep▪.

(48.) S…t moved for a Prohibition, That whereas he had twenty Acres of Wheat, and had ſet out the Tenth part for Tithe, the Defendant pretending that there was a Cuſtome of Tithing, that the Owner ſhould have fifty four Sheaves, and the Parſon five, and ſo he ſued for Tithes, for that there was no ſuch Cuſtome: And the Court ſaid, That the Modus decimandi muſt be ſued for as well in the Eccleſiaſtical Court as for the Tithe it ſelf: And if it be allowed between the parties, they ſhall proceed there; but if the Cuſtome be denied, it muſt be tried at the Common Law: For if it be found for a Cuſtome, Conſultation muſt be granted; if not, then the Prohibition is to ſtanduuScot againſt Wall. Hetl. Rep..

p. 374(49.) Napper againſt Steward; the Parſon had a Prohibition againſt divers of his Pariſhioners that Libelled in the Eccleſiaſtical Court, to make Proof by Witneſs of divers manner of Tithing in perpetuam rei memoriam wwNapper againſt Steward. Hetl. Rep..

(50.) A Prohibition for H. againſt E. Farmer of the Rectory of S. and preſcribed, That all Tenants and Occupiers of Meadow had uſed to cut the Graſs, and to ſtraw it abroad called Tetting, and then gathered into Wind-rows, and then put it into Graſs-Co…ks in equal parts without any fraud, to ſet out the Tenth-Cock great and ſmall to the Parſon,Cuſtome of Tithe Gra…-Cocks. in full ſatisfaction as well of the firſt as of the latter Math: Upon Traverſe of the Cuſtome it was …ound for the Plaintiff; and exception was taken, That the Cuſtome was void, becauſe it imports no more than what every Owner ought to do, and ſo no recompence for the two Maths: But the Court gave Judgment …or the Plaintiff; for Diſmes naturally are but the Tenth of the Revenue of any Ground, and not of any labour or Induſtry: Where it may be divided as in Groſs, it may, though not in Corn; and in divers places they ſ…t out the Tenth acre of Wood ſtanding, and ſo of Graſs: And the Jury having found his Form of Tithing there, it is ſufficient: and the like Judgment upon the like Cuſtome was in the Kings Bench. Paſch. 2 Jac. Rot. 191, or 192. inter Hall & Symonds rrHil. 4 Car. C. B. …ide againſt Ellis. Hetl. Rep..

(51.) In Johnſon's Caſe, if a Prohibition be granted upon matter at Common Law, as upon a Perſonal Agreement between Parſon and Pariſhioner for his Tithes, and not upon matter within the Stat. of 2 E. 6. 13. the Suggeſtion ſhall not be Proved within the Six months as the Statute limits; and as it is Agreed by the whole CourtyyJohnſon's Caſe. Hetl. Rep..

(52.) The Defendant here in the Prohibition Libels for Tithes of Hay in the Eccleſiaſtical Court. The Plaintiff ſuggeſts, that the Hay was growing upon Greenskips, Deals, and Headlands, and that there is a Cuſtome, that the Pariſhioners in a Meadow there uſed to make the Tithe-Hay for the Parſon, and in conſideration of that to be diſcharged of all Tithes of Hay growing ut ſupra; Tithe-Hay.and alſo that for the Hay of the Land, no Tithe ought to be paid of ſuch Hay, but does not averr, that that Hay was growing upon Greenskips, &c. And an Exception was taken by Henden: (1.) That the Exception is double; the Cuſtome, and the Common Law: And by Yelverton, That is not material; for you may have twenty Suggeſtions to maintain the Suggeſtion of the Court: but Richardſon was againſt that, that a Suggeſtion might be double here, for the Suggeſtion of the Common Law is a Surpluſage: As in Farmer and Norwich's Caſe here lately, One Preſcribes to be diſcharged of Tithes, where the Law diſcharged him, and ſo was diſcharged by the Common p. 375Law. Second Exception is, That he doth not apply the Cuſtome to himſelf in the Suggeſtion; for he that lays the Cuſtome, does not ſhew that the Hay grew upon the Skips, upon which a Plough might turn it ſelf: and for this cauſe by the whole Court the Suggeſtion is naught. And here Richardſon moved, how that Two ſhould joyn in a Prohibition. Yelverton, If they are joyned in the Libel, they may joyn in the Prohibition, and that is the common practice of the Kings Bench. Richardſon, The wrong to one in the Eccleſiaſtical Court by the Suit, cannot be a wrong to the other. Hutton, They may joyn in the Writ, but they ought to ſever in the Declaration, to which Harvey agreed. Yelverton, The Prohibition is the Suit of the King, and he joyns tant. as in a Writ. Richardſon, But it is as the Suit of the party is, and if any joyn here, I think good cauſe of a Conſultation. It is againſt the profit of the Court to ſuffer many to joyn. And it is uſual in the Caſe of Cuſtomes of a Pariſh in debate to order Proceedings in the two Prohibitions, and that to bind all the Pariſh and Parſon. And it was ſaid by them all, That the Conſideration of making Hay is a good Diſcharge, becauſe it is more than they are bound to dozzHil. 3 Car. & Paſc. 4 Car. Rot. 454. Wood and C…r… verner's Caſe ag. Symonds. Hetl. Rep..

(53.) F. ſued V. for Tithes of Hay, which was upon Land that was Heath-ground, and for Tithes of Pidgeons. And by Richardſon, If it was meer Waſte-ground, and yield nothing, it is excuſed by the Statute of payment of Tithes for ſeven years: But if Sheep were kept upon it, or if it yield any Profit, which yield Tithes, then Tithe ought to be paid:Tithe-Hay on Heath. 222 As the Caſe in Dyer. And for the Pidgeons, which were conſumed in the Houſe of the Owner, he ſaid, and for Fiſh in a Pond, Conies, Deer, it is clear that no Tithes of them ought to be paid of Right; wherefore then of Pidgeons? quod nemo dedixit. And a day was given to ſhew cauſe wherefore a Prohibition ſhould not be granted. And the Court agreed, That it was Felony to take Pidgeons out of a Dove-houſe. And afterwards a Prohibition was granted, but principally, That the Pidgeons were ſpent by the Owner. But by Henden, They ſhall be Tithable, if they be ſoldaaFl…wer ag…. Vaug…an. Hetl. Rep..

(54.) P. the Vicar of Eaton in the County of Oxon, Sues C. the Parſon Impropriate in the Eccleſiaſtical Court in Oxford pro Minutis Decimis. C. ſues a Prohibition againſt the Vicar upon a Surmize of a Preſcription. P. comes and pleads the firſt Endowment made An. Dom. 1310. by which the Minute Tithes were allotted to the Vicar: C. demurrs; and Adjudged for the Plaintiff, for the Parſon cannot Preſcribe againſt the firſt EndowmentbbTr. 2 Jac. … B. R. rot. 520. Pring… verſ. Child. Noy. Rep..

(55.) In Debt upon the Stat. of 2 E. 6. for not ſetting out of Tithes, the Plaintiff declares, That the Defendant was ſeized of the Lands in queſtion within that Pariſh, and that the Tithes did p. 376belong to the Parſon and Vicar (viz.) Two parts to the Parſon, and the Third part to the Vicar,F…r not ſetting …ut of Tithes. or their Farmers, payable in ſpecie for 40 years laſt paſt, that the Plaintiff was Farmer proprietary of the Tithes to the Parſon and Vicar ſpectant, and ſhews the value of the Tithes due, and demands the treble value; the …ndant pleads Ni…il debet per patr. and it was found for the …. It was now moved in Arreſt of Judgment, becauſe the Plaintiff ought to have brought two Actions, as the Parſon and the Vicar ought for their ſeveral parts: But Reſolved, that the Action is well brought; for it is a Perſonal and one entire Debt for one wrong ccPaſch. 3 Jac. B. R. Sir Rich. Champion verſ. Rob. Hill. Noy's Rep..

(56.) Bott ſues a Prohibition againſt Sir Edward B. and ſuggeſts That the Defendant is Parſon Impropriate of W. and that time out of mind there hath been a Curate of an Incumbent by the appointment of the ſaid Rector, who adminiſtred the Sacraments, &c. And that the Cuſtome of that Pariſh time out of, &c. was, that the Curate ſhould have … Tenths renewing within that Pariſh,Preſcription. except Decimas gra…m, which were paid to the Parſon, and that every Pariſhioner who had ſo paid the Tenths to the Curate, was diſcharged againſt the Parſon. And that notwithſtanding that, &c. Sir Edward B. had ſued him &c. And now he prays a Prohibition, and had it; but after that Surmize was adjudged inſufficient, without Argument by the Court, and a Conſultation granted, for ſuch Curate cannot Preſcribe againſt his Maſter, that may remove him at his pleaſure: And for that reaſon it was not a good Preſcription for the Pariſhioners ddBott ag. Sr. Ed. Brabaton. Noy's Rep..

(57.) Goodwin being Vicar ſues in the Eccleſiaſtical Court the Dean and Chapter of Wells, b…ing Parſon of a Church, for a Penſion, and they pray a Prohibition… and it was denied: For that Penſion is a Spiritual thing, for which the Vicar may Sue in the Spiritual Court. Note, that they entitle themſelves to that Parſonage by a Grant of H. 8. who had it by 31 H. 8. of Diſſolutions eeGoodwin againſt the Dean and Chapter of Well… Noy's Rep. Tithes ſet out, No…ice..

(58.) It was ſaid by Hutton in Spencer's Caſe, That by the Civil Law the Pariſhioner ought to give notice to the Parſon when the Tithes are ſet forth. But it was adjudged, That the Common Law doth not ſo oblige a manffSpencer's Caſe. Noy's Rep..

(59.) B. by his Deed Compounds for Tithes, and after Sues for them in the Eccleſiaſtical Court, by Popham and Gawdy, That an Action upon the Caſe lies.Compoſition. Vid. E. 4. 13 Mich. 4 Jac. The Lady Waterhouſe was ſued for the Tithes of Trees, whereof none were due, &c. there an Action upon the Caſe does not lie; for the Parſon or perſon may well be ignorant of what things are due, otherwiſe he Sues againſt his own knowledgeggBrey a…. Patridge. Noy's Rep..

p. 377(60.) To have a Prohibition the Surmize was, That the Inhabitants of D. of which he is an Inhabitant, have paid un. mod. decimand. &c. And they were at Iſſue; and he proved only, that he himſelf had paid it,Mod…s De… mand. and yet well: And no Conſultation; for every particular is included in the general, and proved by it. And it appears ſufficient matter for a Prohibition, and to ouſt a Spiritual Court of their Cognizance. (2) Agreed, that where the Statute appoints Proof of the Surmize to be by Two, it is ſufficient if Two affirm that they have known it to be ſo, or that the Common Fame is ſohhMich. 15 Jac. C. B. rot. 725. Fo…d ag. Weedham. Noy's Rep..

(61.) Upon a Surmize by a Pariſhioner, That he had Compounded with the Parſon for his Tithes for one year, and it may be without Deed;Compoſition. by Brownlowe, That a Prohibition ſhall be awarded, and that there are divers Preſidents in this Court. But otherwiſe, if it be for more years, it is not good without DeediiMich. 16 Jac. C. B. rot. 541. Green ag. Dickenſon. Proof of Surmize for a Prohibition.. And in Skinner's Caſe, it was Ruled by the Court upon a Surmize to have a Prohibition, That if it be proved before one of the Judges within the Six months, although that it be not Recorded till after the Six months, yet it is well enough; and good alſo, although that the Proof be in the Vacation. [Paſch. 43 Eliz. B. R. Pottenger againſt Johnſon kkSkinner's Caſe. Noys Rep..

(62.) A Parſon preferrs his Bill for Tithes of Haſle, Holly, Willow, Whitethorn, &c. a Prohibition was moved, becauſe they were of 21 years growth and more:Tithe-Haſle, Holly, Willow, Whitethorn. And by the common Cuſtome in Hampſhire, they were uſed for Timber to build and repair their Ploughs, and cited Paſch. 14 Jac. C. B. Rot. 1918. Cufflye's Caſe againſt the Parſon for Holly, Willows, and Maple; and a Prohibition was awarded. And Hubbard ſaid, That in Cumberland Beech was uſed for Timber, and the uſe of the Countrey for ſcarcity of other Trees will alter the CaſellPinder ag. Spencer. Noy's Rep..

The Parſon Libels for Tithes of Hay, &c. The Parſon ſaid, that the Cuſtome of the Pariſh hath been, That he that hath Corn within the Pariſh ought to reap the Corn, and alſo the Tithes of the Parſon,Whether Pariſhioner ſhall preſerve the Parſons Tithe? and to make them into Cocks, and to preſerve them until the Parſon ſhall carry them away. And a Prohibition was granted; for although that the Pariſhioners ought de jure to reap the Corn, as it was agreed Trin. 28 Eliz. B. R. yet he is not bound to guard the Tithes of the Parſon, &c. But if the Parſon does not carry them away in convenient time, an Action on the Caſe lies againſt him. Paſch. 20 Jac. B. R. Rot. 286. there ſuch an Action was brought by Wiſeman againſt the Rector of Landen in Eſſex, for not accepting, &c. of the Tithes of CheeſemmDr. Bridgman's Caſe. Noys Rep..

p. 378(63.) B. brought an Action upon the Caſe, That P. ſued for Tithes, and recovered, becauſe there was niſi Teſtis ſingularis to prove the payment, when in truth he had paid it before Two, but now one was dead;Teſtis ſingularis to prove payment of Tithes. and by the Court Reſolved, That an Action doth not lie, becauſe the Cauſe was meerly Spiritual: And for that it differs from 8 E. 4. 13. for there the Compoſition was a Temporal Contract, although it was for TithesnnBray verſ. Patridge. Noys Rep..

(64.) G. moves for a Prohibition, and Surmizes that the Pariſhioners had Compounded with the Parſon for the Tithes; but yet the due Tithes were ſevered and expoſed, and the Parſon takes and carries them away;Compoſition. the Pariſhioner meets him and takes them from him. And upon that the Parſon ſues in the Eccleſiaſtical Court: And a Prohibition was awardedooBrooks Caſe in Noy's Rep..

(65.) W. Sues P. in the Eccleſiaſtical Court for not ſetting out the Tithes of two Acres; P. prays a Prohibition, becauſe he had ſet out the Tithes of one Acre in ſpecie, and that a party unknown had taken them; and for the other he ſuggeſts a Modus Decimandi for 2 s. Tithes ſet out.6 d. And upon that Iſſue is joyned; and the Witneſſes ſaid, That for a long time, as they heard ſay, the Occupiers of that Farm, whereof that Acre, &c. had uſed to pay annually to the Parſon three ſhillings for all Tithes; and agreed by the Court, (1) As to the firſt, Quod Prohibitio ſtet, for after the Tithes are ſevered, if a Stranger takes them away, the Parſon hath his Remedy againſt him at Common Law, and ſhall not ſue the Pariſhioner in the Spiritual Court. (2) It was agreed, That a Proof (by hearſay) was good enough to maintain the Surmize within the Statute of 2 Ed. 6. But as to the other Acre, Popham held, That the Modus Decimandi is not well proved; but Fenner and Yelverton the contrary: For by that appears, the Parſon is not to have Tithes in ſpecie, and for that had not any cauſe to Sue for them in the Spiritual CourtppWebb againſt Petts. Noys Rep..

(66.) W. Sues P. in the Eccleſiaſtical Court for Tithes of a Dovehouſe. P. upon ſuggeſtion had a Prohibition; but he did not prove his Suggeſtion within the Sixth month.Tithes of P…geons. W. takes iſſue upon the Sugg…ſtion, and it is found againſt him; and yet he prays Coſts by the Statute of 2 Ed. 6. for failure of Proof within the Six months. But by the Court adjudged, that he ſhall not have it; for-…he hath ſurceaſed his time, to take advantage of that, and he can never have a Conſultation. Frgo, He ſhall not have double Coſts. Read the words of the StatuteqqWarlington …rſ. P…rry. Noy. Rep..

(67.) Parſon preferrs his Bill for Tithes of Corn, and alledges, that time out of mind, &c. in that Pariſh they have uſed to allot the T…nth-Shock; wher…upon the Pariſhioner ſuggeſts, That the Pariſhioners, and all thoſe who have Eſtates, &c. have uſed only to p. 379ſet out the Tenth-ſheaf for Tithes, and had a Prohibition. The Parſon prays a Conſultation; but it was denied. And Reſolved by the Court,Medus Decimandi. That the Parſon might Sue for a Modus Decimandi in the Eccleſiaſtical Court, 2 R. 3. 3. a. But if the Pariſhioner deni…s that, they ought to ſurceaſe, and a Prohibition lies, and that ſhall be tried at Common LawuuSteward's Caſe in Noy's Rep..

(68.) A. Libels in the Eccleſiaſtical Court for the Tithes of Pilchards taken in the Sea. And now the party had a Prohibition; upon a Surmize that the Cuſtome there is,Tithes of Sea-F…ſh. That the Fiſher-Boat, hath one Moity of the Fiſh, and the Fiſhermen the other moity: And that the Owner hath uſed to pay the Tenth of his Moity in diſcharge of all, &c. And it was held by the Court to be a good Surmize; for by the Common Law he cannot have the Tithes of Fiſhes taken in the Sea, becauſe it is not within any Pariſh; and then when the Parſon, by the Cuſtome, ought to have the Tithes of them, he ought to take them according to the Cuſtome. And that the Tenth of the Moity may be a good diſcharge of the whole. And the parties went to iſſue upon the Cuſtome in Cornwal wwHolland verſ. Heale. Noys Rep..

(69.) By the Court (Popham being abſent) it is clear, That an Agreement betwixt the Parſon and one of the Pariſhioners, that he ſhall have his own Tithes for years, it is good enough without Deed, but otherwiſe, if it had been for life. And it is a better way to pl…ad that as an Agreement, and not as a LeaſexxSmall's Caſe. Noys Rep..

(70.) A Prohibition for a Suit in the Eccleſiaſtical Court, for Tithes of Rent in London. It was held by the Court, That by 33 H. 8. cap. 12. the Suit ought to be before the Major of London by complaint in Writing, and not by word of mouth only, in nature of a Monſtrans de droit, declaring all the Title. And if the Suit be in the Eccleſiaſtical Court for Tithes in London, that Court may grant a Prohibition; and yet that Court hath not power to meddle with them. (2) It was Reſolved, That a Reſervation by a Leſſee for life, who Leaſes for years to A. is not ſufficient to bind him in Reverſion, to pay Tithes according to that rate. (3) That a Rent for half a year, and afterwards for another half year, is a yearly Rent within the meaning of the Decree: And note, as the ſame was laſt Lett, is not intended laſt before the Decree, but before the Demand of the TithesyyDr. Meadhouſe verſ. Dr. Taylor. Noy. Rep. Collector of Tithes..

(71.) It was found upon a Special Verdict, That the Parſon of the Pariſh makes A. Collector of Tithes, and that A. had Licenſed a Pariſhioner to carry away his Corn without ſetting …orth of Tithes. By the Court clearly, that Licenſe is void, vid. 5 E. 3. 63. Plow. 104. That a Collector of Rents cannot make an Acquittance and diſcharge them. And a Conſultation was awardedzzBrickend…e verſ. Denwood. Noys Rep..

p. 380(72.) Baron and Feme Leſſees of a Parſonage, &c. The Pariſhioner ſets forth the Tithes fraudulently, and preſently takes them away again, as it appears upon the Evidence. And the Husband only brought the Action upon 2 Ed. 6. for the treble Dammages.Fraudulent ſetting out of Tithes. And it was Reſolved, That Debt lies for treble Dammages upon ſuch a fraudulent ſetting forth of Tithes, although that the clauſe of Treble Dammages ſpeaks nothing of Fraud. But (2) it was Reſolved, That the Husband and Wife ought to have joyned in the Action; becauſe it is not a thing in poſſeſſion. And if the Husband dies, the Wife ſhall have the Dammages, and not the Executor of the Huſband aaHil. 7 Jac. B. R. Ford verſ. Pomroy. Noy's Rep..

(73.) A Prohibition was prayed upon a Surmize, That the Tithes, for which the Suit was, belonged to the Vicar, and not to the Parſon:Tithes, whether the Parſons or the Vicars. By the Court, That a Conſultation ſhall be granted; for the Right of Tithes is confeſſed. And whether they belong to the Parſon or the Vicar, that is meerly Spiritual. And that ſo it was Ruled in one Buſhel's Caſe, the Parſon of Pancras; and in one Milbray's Caſe it was Adjudged accordinglybbRandall verſ. Knowls. Noys Rep..

(74.) By the Court, That a Prohibition ſhall not be granted upon a bare Surmize, that he is ſued for Tithes by the Parſon of D. of Lands in the pariſh of S. unleſs it appears in the Pleading in the Spiritual Court: For they there ſhall not be Judges of the bounds of the Pariſh. Vid. 5 H. 5. 10. 22 E. 4. 24.ccPhilips ag. Slacke, ibid..

(75.) A Prohibition was pray'd upon a Suit in the Eccleſiaſtical Court for Tithes in kind of a Park now converted into Tillage, upon a Surmize de Modo Decimandi, to pay a Buck and a Doe for all Tithes.Tithe-Park. And allowed by the Court and agr…ed, (1) Although they are Ferae naturae, yet they may be given for Tithes: So to pay Pheaſants, &c. (2) Although they are not Tithable of themſelves, yet they may be given for Modus Decimandi: Mod. Deciman.As a great Tree may be given for Tithe of Trees tithable. (3) That that is a diſcharge of the very Soil, and a Park is not but a Liberty, and the Owner may furniſh it with Game when he pleaſe. But after a Conſultation was granted, becauſe the Surmize was not proved within the Six months: So Adjudged Hill. 6. Jac. C. B. The Vicar of Clare in Suffolk, who ſued for Hops. And there alſo a Prohibition was granted upon ſuch a Surmize. But after a Conſultation was granted in that Caſe: For the Modus Decimandi was alledged for Diſcharge of Tithes of Hay and Herbage, and not of all Tithes, where the Libel was for Tithes of Hops. And Coke Chief Juſtice vouched one Shibden's Caſe, That ſuch a Modus Decimandi generally for the Park is not good, if it be diſparked. But it ſhall be particularly for all Acres contained in the ParkddSharp ag. Sharp. Noys Rep..

p. 381(76.) Upon a Surmize to have Prohibition after Sentence at the Eccleſiaſtical Court,Tithes not ſ…t forth. Two Judgments were vouch'd upon the Statute 2 E. 6. for not ſetting forth of Tithes. And 43 Eliz. B. R. a Pariſhioner privately ſets forth his Tithes, and takes witneſs of it▪ and immediately after he carries them away; that is not a ſetting forth within the Statute. For the words are truly, juſtly, and without fraud or covin. Vid. 10 H. 4. 2. 2. 44 Eliz. B. R. B…k…r's Caſe: A Pariſhioner ſells his Grain upon his Land, and after, by the command of the Vendee, he takes his Corn, being ſevered, without ſetting forth of the Tithes. That the Parſon may well have an Action againſt him upon the Statute, and ſhall not be compelled to Sue the Vendee, who it may be was not known to him. And it is not Traverſable, if the Tithes were ſet forth according to 47 Eliz. It was Reſolved in Trin. 7 Jac. B. R. in Brickendine's Caſe againſt Denwood eeRocheſter ag. Porter. Noy's Rep..

(77.) If a Vicar hath uſed by Preſcription time out of mind, &c. to have all the Tithes within the Pariſh (except Corn, which the Parſon appropriate uſed to have) viz. of Hay, and alſo of Hops from the time it came into England, which was in the time of H. 8. and of Wo…d (which is a Dying plant) and moreover Rape-ſeed is ſown there in the Pariſh, where never any ſuch Seed was ſown before, nor in England till of late times,Tithe Rape-ſeed. yet the Vicar ſhall have the Tithes of that Rape-ſeed, and not the Parſon appropriate; for that it is within the Preſcription although it be a new thing, and therefore could not be preſcribed ſingly; and for that the Parſon is excluded of all except the Corn ffPaſch. 7 Car. B. R. Rol. Abr. ver▪ Vicar. Decimae Garba…um..

(78.) If Doubt ariſe de Decimis Garbarum, as what ſhall be intended by Garba; it is ſaid that Garba at the Common Law ſignifies at this day a Sheaf of Corn, and the Civilians ſay, Garba ſignifies ſuch a thing as is bound together in one bundleggRoll. Abr. verb. Vicar, nu. 7. Tithe-Wood..

(79.) In the Caſe between Reynolls and Green it was Adjudged by the Court, That Wood in its own nature is Great Tithes; notwithſtanding if a Vicar be endowed de Minutis Decimis, and by virtue of the ſaid Endowment had of a long time uſed to have Tithe of Wood not exceeding the yearly value of 6 s. 8 d. the uſage of Wood ſhall paſs by the words de Minutis Decimis in that caſe, by reaſon of the ſmall value thereofhhMich. 10 Jac. B. R. inter… Reynolls … Green..

(80.) Where a Parſon had Two parts of the Tithes, and the Vicar of the ſame place had the Third, and they by ſeveral Leaſes had demiſed the Tithes to one: In this Caſe the whole Court (except Juſtice Fenner) held, That although the Parſon and Vicar could not joyn in this Caſe in a Suit of Tithes, becauſe they claim them ſeverally by divided rights, yet when both their Tithes are conjoyned in one perſon, viz. the Leſſee, then the intereſt of their p. 382Title is conjoyned alſo in one (who made but one Action for the whole Tithes in that caſe) yet it was agreed by all the Judges, that the Plaintiff-Leſſee ſhould recover his Tithes in dammages, and ſhall not demand them again in any Suit, after a Recovery in this ActioniiPaſch. 3 Jac. Sir R. Champion verſ. Hill. Brownl. Rep. pa. 1. Actions of Debt..

(81.) It was Agreed by the whole Court of Kings Bench, Mich. 5 Jac. and hath many times been Ruled, That if a man ſell his Tithes for years by word, it is good; but if the Parſon agree, that one ſhall have his Tithes for ſeven years by Word,Brownl. Rep. ibid. it is not good, by the opinion of Flemming Chief Juſtice, becauſe i… amounts to a Leaſe: and he held ſtrongly, That Tithes cannot be Leaſed for years without a Deed.

(82.) Upon the Statute of 2 Ed. 6. cap. 13. …or Setting out of Tithes, in a Prohibition to ſtay proceedings by a Parſon in a Suit in the Eccleſiaſtical Court againſt one of his Pariſh,Action for ſtopping the Parſons Way of carrying his Tithes. for hindering of him in his way in the Carriage of his Tithes. The whole Court agreed in this, That if a Parſon hath his uſual way ſtop'd, that ſo he cannot come to take away his Tithes being ſet out for him, he may well ſue for this in the Eccleſiaſtical Court, and there have his remedy. But if the Queſtion be whether the Parſon be of right to have a way (viz.) one way or another, this is Triable by the Common Law, and not in the Eccleſiaſtical Court; but if the Parſon have a certain Way granted to him, and ſet out by the Common Law, if he be at any time diſturbed or hindered by any of his Pariſhioners, or by any other in the uſe of this his Way, he may then in ſuch caſe well ſue in the Eccleſiaſtical Court for his remedy. And the words of the Statute of 2 Ed. 6. cap. 13. are, That if any Parſon be diſturbed, ſtopped, or hindered in the carrying away of his Tithes, ſo that the Tithe comes to be loſt,Mich. 8 Jac. B. R. Bulſtr. par. 1. hurt, or impaired; in this caſe he may ſue in the Eccleſiaſtical Court for his Remedy, and upon due proof there made thereof, he ſhall recover double value of the Tithe ſo taken or loſt, beſides his coſt and charges of Suit. But becauſe in this principal Caſe, the Parſon ſued in the Eccleſiaſtical Court for the Right of his Way, whether he was to have that Way or not, which belonged properly to the Common Law, and not Triable there in the Eccleſiaſtical Court; for this cauſe the Court granted a Prohibition to ſtay their proceedings in the Eccleſiaſtical Court.