Abridgment of Ecclesiastical Laws, Treatise · Chapter 32 · Part 17
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TAres, or Green Tares, cut before they are Ripe, or mowed when they are green, for the Feeding of Cattel, when Suit hath been commenced in the Eccleſiaſtical Court for Tithes thereof, a Prohibition hath been granted upon a Suggeſtion grounded upon ſpecial Cuſtomes, that no Tithes ought to be paid for the ſame. Fetches, Tares, and other courſe Grain, eaten only by the Cattel which do the Husbandry-work in the place, pay no Tithe, except there be a Special Cuſtome for it. Lane 16. Notwithſtanding, whether they are Tithable or not, if cut for Horſes is a Queſtion; for where upon a Libel in the Eccleſiaſtical Court for Tithes of Green Tares cut for ſeeding of Labouring Horſes, it was moved for a Prohibition, it was not granted upon ſuch a general Suggeſtion, it being no ground for it: Otherwiſe, upon the Cuſtome of the Pariſh, That no Tithe hath been paid in ſuch caſeaMich. 7 Car. B. R. Mead verſ. Thu…m…n. Jones Rep.. It was Mead and Thurman's Caſe, which is elſewhere Reported, That a Prohibition was prayed upon a Suggeſtion of this Cuſtome, That for Tares cut or mowen before they are ripe, and given to Plough-Cattel, Tithes ought not to be paid: And another Cuſtome for Headlands ſown with Corn, uſed to be fed with Plough-Cattel, or mowed or cut for that purpoſe, that the Owners ſhould be diſcharged of Tithes. It was holden by the Court, That this Suggeſtion grounded upon a Special Cuſtome was good: and the parties being ſued for the Tithes of the Premiſſes in the Sp. Court, the Court granted a ProhibitionbHil. 10 Ca…. B. R. Mead & Thurman's C. Cro. 1. pa. 285.
Timber-Trees, that have been uſually Top'd and Lop'd, ſuch Toppings and Loppings are not Tithable; for the Law that doth priviledge the Body of the Tree, doth priviledge alſo the Branches thereof. The Law is the ſame, if the Tree become Rotten Dry, and BarrencCo 11 par. in Bowle's C. Co 11. pa. 48. Liford's Caſe.. Timber-Trees in all Counties, as Oak, Aſh, and Elm, after twenty years growth, are not (as aforeſaid) Tithable. Alſo Beech, Horn-Bean, Maple, Aſp, and Haſel, may in ſome Counties, where there is ſcarcity of other Timber and an Uſage accordingly, be computed as Timber-Trees, and not Tithaable. But any Timber-Wood, if it be cut within twenty years after the firſt planting thereof, is TithabledMore. Caſe 1271.. But on the other hand, Timber-Trees once diſcharged of Tithes are for ever diſcharged and quit of Tithes, though rotten dead. Whether a Parſon may Preſcribe to have Tithes of great Trees, contrary to the Common Law and the Statute of Sylva Caedua, Quaere, 9 H. 6. 56. It is ſaid by Belknap e50 E. 3. 10., That of great Trees, or of Timber-Trees, Tithe was never demanded, and that by the Statute of 43 Ed. 3. But vid. Coke 11. par. in Liford's Caſe, the words in that Statute, and in the Book of 50 E. 3. viz. Great Trees muſt be intended Oaks, Aſh, and Elms, of all which as well before the ſaid Statute as ſince, if they were of twenty years growth, it ſeems by the Common Law Tithes were not to be paid, becauſe of their own nature they were only accounted Timber-Trees, and fit for Building. But of Sallows, Willows, Maples, and the like, although they be above twenty years growth, yet Tithes thereof ſhall be paidfPlow. Com. 450. & Dr. & Stud. 169.. Of other Trees of the age of twenty years growth or upwards, which are Timber-Trees, Tithes ſhall not be paid; but of Sylva Caedua and Underwoods, Tithes ſhall be paid, but not of great Trees by Statute g…t. 45 Ed. 3. cap. 3. 11 H. 4. 89. 50 E. 3. 10.. In a Prohibition the Queſtion was, Whether Trees, which were above the age of 20 years growth become Rotten, and be cut down for Fewel, ſhall pay Tithe or not. It was the Opinion of the Court, that they ſhall not pay Tithes, for that Tithes are payable for all increaſe, and not for a decreaſe; and being priviledged in regard of their high nature, this Priviledge ſhall not be loſt in regard of its decreaſehHil. 43 El. C. B. Rame & Pateſon's C. Goldes b. 145.. So if Timber-Trees become Arida, Sicca, &c. yet becauſe ſometimes it was an Inheritance, which was diſcharged of Tithes, although it now become Dotard, Tithe ſhall not be paid of the ſame; for the quality remaineth, though the eſtate of the Tree be alterediCo. 11. par. 81. Bowle's C. vid. Paſ. 8 Jac. C. B. Dr. Nowman's Caſe, Godb. 175. ac. Hil. 2 Jac. B. R. Bro…k & Roger's Caſe. Cro. 1. par. 100.. If a Tree under the growth of 20 years be Top'd, and the Body thereof ſuffered to grow till it be paſt that age, and afterwards the Boughs being grown out again are Top'd and Lop'd again, Tithes thereof ſhall not be paid, although that the Tree was not Priviledg'd at the firſt cutting; which was the Opinion of the whole Court of Common-Pleaskv. Brownl. 1. par. 33.. Such Timber-Trees are in Law known by the name of Great Treesl45 Ed. 3. and the Bo…k 50 Ed. 3., and Groſs woodsmPlowd. 470..
Trades and Labours pay ſome Tithe by uſage in the nature of Perſonal Tithes; and ſo Carpenters, Maſons, &c. and all Handicraftsmen have paid Tithe. There was a Parſon in Briſtoll that ſued an Innkeeper there for the Tithes of the Profits of his Kitchin, Stable, and Wine-cellar; in a Prohibition moved for by Yelverton, the Caſe appeared to be this: The Defendant being Parſon of a Pariſh in Briſtoll, Mich. 11 Jac. B. R. Dolley ver. Davies. Bulſtr. par. 2.did Libel in the Eccleſiaſtical Court againſt the Plaintiff, being an Innkeeper of the Bear in Briſtoll, to have Tithes of the Profits by him made, of his Kitchin, Stable, and Wine-cellar, and lays in his Libel there, That he made great gain in ſelling of his Beer (having bought it for 500 l. and ſold the ſame for a 1000 l.) and ſo Libels for the Third part of the Profits of the ſame, and ſets forth in his Libel, That this is due unto him per Communem Legem Angliae; and ſets forth in his Libel, That Negotiando and Traficando, he doth bargain and ſell Beer in his Inn for 1000 l. which he bought for 500 l. and gained in his Sale 300 l. and better, of which gain he ought to have Tithe. Yelverton moved for a Prohibition, ſetting all this matter forth in his Suggeſtion; and further ſhewed, That the Defendant had yearly of the Plaintiff 40 l. at the leaſt. Doderidge Juſtice, The Defendant would have Tithe, as I think, alſo of the Kitchin-ſtuff. Clench Clerk of the Papers informed the Court, That there was a Parſon, who Libelled for Tithes of the gains of 10 l. for an 100 l. put out at Intereſt, and a Prohibition was granted: In this principal Caſe, by the Rule of the Court a Prohibition was awarded.
Tranſaction differs from Compoſition only in this, that Tranſaction is an Agreement, touching Tithes, upon things litigious and doubtful; the other is Frank, gratuitous and voluntary, of things not contended for. See Compoſition.
Treble Dammages may be had in an Action grounded upon the Statute of 2 Ed. 6. for not ſetting forth of Tithes, which Action is to be ſued in the Temporal Courts.
Trees of all ſorts regularly and generally (except Timber-Trees, as aforeſaid) Root and Branch, Body, Bark, and Fruit, uſed or ſold by the Owner, are Tithable. Tithes ſhall be paid of Haſel, Willows, Holley, Alder, and Maple, although above twenty years growth. Mich. 5. Jac. B. Reſolved, and Conſultation granted accordingly. So that Trees of all kinds, not apt for Timber, though exceeding 20 years growth, nor ever cut before, may be Tithable. And all Trees under the notion of Sylva Caedua aforeſaid, Underwoods and Coppices felled and preſerved to grow again are Tithable to the Parſon, when the Owner takes his Nine parts. But Trees cut only for Mounds, Plow-gear, Hedging, Fencing, Fewel, for maintenance of the Plough or Pail, be it Underwoods of Coppices, Parings of Fruit-Trees, or the like, are not Tithable; but Trees bearing Fruit of all ſorts, are Tithable in their Annual increaſe: And therefore as to Fruit-Trees, as Apples, Pears, &c. the Tenth of the Fruit ſhall be ſet out and delivered, when they are newly gathered; for the omiſſion whereof, if loſs come to the Parſon, the Owner is chargeable to him in the Treble Dammages. If a man pay Tithes for the Fruit of Trees, and after cut down the ſame Trees, and make them into Billets and Faggots, and ſell them, he ſhall not pay Tithes for the Billets or Faggots; for that it is not any new Increaſe. Coke, Magna Charta, 652. 621. If Trees be Fell'd, no Tithes ſhall be paid of the Roots. Coke, Paſch. 29 Eliz. B. R. nor of the young Sprouts, that grow of ſuch ancient Stock. M. 12 Jac. B. R. Stampe & Clinton. Roll. Rep. And as Fruit-Trees pay Tithes in their Fruit, ſo alſo may young Trees, which as yet bear no Fruit, pay Tithes in another kind; for where a Parſon Libelled in the Eccleſiaſtical Court for the Tithes of young Trees planted in a Nurſery, upon purpoſe to be rooted up, and ſold to be planted in other Pariſhes: The Queſtion was, Whether Tithes ſhould be paid for them? It was ſaid, they were of the nature of the Land, and Tithes ſhould not be paid of them, no more than of the Mines of Coles, or Stones digged; or for Trees ſpent in Fewel in the Houſe. But it was the Opinion of the whole Court, That foraſmuch as he made a profit of ſuch young Trees, Tithes thereof ſhould be paid, when they are digged up and ſold into another Pariſh, as well as of Corn and Carret, or other things of like naturenHill. 14 Car. B. R. Gibbs and Wibornes Caſe. Cro. 1. par. 378..
Note by the Juſtices, If one cut Trees which are or may be Timber, although they be under the age of 20 years, no Tithes are due; and ſo it is of new Germins growing under that age.Paſch. 29 El. B. R. Crook Rep. par. 1. And where in a Prohibition, for that it was Libelled in the Eccleſiaſtical Court for Tithes of Timber-Trees, the Defendant ſaid, the Trees were long ſince aridae, mortuae, & putridae: It was the Opinion of the Juſtices, That no Tithes ſhould be paid of thoſe Trees, Ram and Baterſons Caſe. Cro. par. 1.for being above the growth of 20 years, they were diſcharged of Tithes. Alſo in Brook and Rogers Caſe, where a Parſon ſued in the Eccleſiaſtical Court for the Tithes of the Boughs of Trees, above the age of 20 years growth, and the Defendant prayed a Prohibition, and ſhewed that the Trees were aridae, Cro. par. 2.ſiccae, & in culminibus putridae: It was held by the better Opinion, that Tithes ſhould not be paid of them.
In an Action upon the Caſe: Declared, whereas by the Statute of 45 Ed. 3. cap. 3. Tithes ought not to be paid for Groſs Trees: That ſhe had cut down ſuch Timber-Trees, being above the growth of twenty years,The Lady Waterhouſe & Bawde's C. Cro. par. 1. and that the Defendant as Parſon ſued her for Tithes of them againſt the Statute; upon which it was Demurred. Reſolved by the whole Court, That the Action did not lie; for none ſhall be puniſhed for Suing in the Eccleſiaſtical Court for any matter which is properly demandable there, although perhaps, he hath no cauſe of Action: But if he Sues in the Eccleſiaſtical Court for matter, which appears by his Libel is not Suable there, nor the Court hath Juriſdiction thereof, there an Action upon the Caſe lieth.
Turkeys: Tithes ſhall not be paid of them, nor their Eggs, quia Ferae naturae oHoughton and Princes Caſe. More. Rep..
Turves uſed for Fewel or Firing, do pay Tithe, and are Tithable as Predial Tithes; yet held that Tithes ſhall not be paid thereof. Hill. 14 Jac. B. R. per Houghton. Hill. 11 Jac. B. R. per Cur.
Tile-Stones, or Brick-Tile are not Tithable*Adjudg. Mich. 19 Eliz. B. R. & Paſch. 34 Elliz. C. B. Liff and Watts C..
Tythes or Tithes are a Tenth, or otherwiſe a certain part or portion of the Fruit or lawful Increaſe of the Earth, Beaſts, or Mens Labour and Induſtry; and are payable by every perſon having things Tithable, that cannot ſhew a Special Exemption, either by Compoſition, Cuſtome, Preſcription, Priviledge, or ſome Act of Parliament: And they are to be paid without any Diminution; for which reaſon the Owners of things Tithable ought not to have the Nine parts, till the Tenth be firſt ſevered there-from. And on the other ſide, the Tithe is in no caſe to be taken by the Parſon or Vicar, before the ſame be ſevered from the Nine parts. The Parſon de mero Jure is to have all the Tithes, if there be no Endowment of the Vicaragep29 Eliz. B. R. in Buſ…ie the Vicar of Paucas Caſ. Godb. 63.; and a Vicar cannot have Tithes, but by Gift, Compoſition, or Preſcription, for that all Tithes de jure do belong to the ParſonqPaſch. 15 Car. B. R. Marſh. 11.. In Suit for Tithes it is not neceſſary to demand the very value, for the Duty is uncertain. Mich. 16 Jac. B. R. Caſe Pemberton & Shelton. Roll. Rep. If Tithes be payable by one who dies before he pays it, it muſt be paid by his Executor, if he hath Aſſets. But if the Pariſhioner ſetteth forth his Tithes, and they ſtand upon the Land two or three daies, and afterwards he taketh or carrieth them away; this is not a ſetting forth of his Tithes within the Statute of 2 Ed. 6.rAdjudg. 10 Car. in Anderſon's Caſe.. But if the Parſon or Vicar ſhall ſuffer his Tithes (being ſevered) to lie long upon the Land to the prejudice of the Owner of the Ground, he may have his Action of the CaſesLey. 70.. And whoever taketh away the Tithes, not having Right thereto, is a Treſpaſſer. Alſo an Action lieth againſt a Diſſeiſor for the Tithes: or if one cut them, and another carrieth them away, an Action lieth againſt either of themtPaſch. 15 Car. B. R. upon Stat. 2 Ed. 6.. And although in the Eccleſiaſtical Courts no Plea is allowed in Diſcharge of Tithes uDr. & Stu. 177. & in 8 Ed. 4. 14.; yet Lands in the hands of Eccleſiaſtical perſons may be Diſcharged of Tithes, and now ſince the Statute of 31 H. 8. in the hands of the Kings Patentees alſo, by Suſpenſion, Priviledge, or UnitywVi. Hugh. Parſ Law. cap. 27. p. 235.. And ſince in the Eccleſiaſtical Courts no Plea (as aforeſaid) is allowed in Diſcharge, it is nothing ſtrange that the Common Law holds, that the Court Spiritual hath not Juriſdiction in matters of Tithes, where the Preſcription is de non Decimando; otherwiſe, where it is de modo Decimandi xYelv. 79. 2.. The manner of right Tithing is regularly thus, viz. That Tithes and all other Church-Duties, ſhall be yielded and paid according to the Uſage and Cuſtome of the place, where they are paid: And of Predial Tithes, the Tenth is to be ſet apart from the Nine parts in the place where they grow, before the ſaid Nine parts are carried away; which Separation from the Nine parts is to be done in preſence of the Parſons Servant, upon ſeaſonable Notice given to the Parſon by the Pariſhioner; and the Parſon is to have reaſonable time to take away his Tithe zBroo. Treſp. 125. Co. 2. par. Inſt. 610.. And as for the Small Tithes, ſuch as Plants, Herbs, Seeds of Woad, Flax, Hemp, &c. they are Tithable in kind, if not Compounded for. And Perſonal Tithes, ſuch as are for Profit made by Trade and Manual Occupations (except Common Labourers) are to be paid, as they were uſed to be paid forty years before the Statute of 2 Ed. 6. and as of right they ought to be paid, as at or before Eaſter ſome ſmall Sum of Money, according to the Cuſtome of the place; but without a Cuſtome nothing to be paidaBy 3 Judg. 17 Jac. B. R.. The Tithes of one thing only cannot be in ſatisfaction of Tithes of the ſame, and other things of another kindbMore. Caſe 623.. Nor is Tithe twice payable of one thing in one and the ſame year: Therefore if a Parſon hath Tithe-Fruit of a Tree felled the ſame year, and made into Billets or Faggots, he ſhall not have Tithe thereof. Nor are Tithes payable by any, but ſuch as have a Property in the thing Tithed, therefore they are not payable of things Stollen; nor ſhall things meerly for Pleaſure pay Tithes, nor the things that are in no mans property; only the King ſhall have the Tithes ariſing out of Ground not in any Pariſh. And if Tithe be paid to one that comes into the place by Simony, it is at his own peril, if afterwards he be forced to pay it againcHob. 168.. Where Sale is or may be made of a thing Tithable, the equalleſt way is to lett the Parſon or Vicar have the Tenth peny made of the thing ſold. And although Tithe is not payable to the Simonaick Parſon, yet an Incumbent wrongfully Collated by the Biſhop, may be ſuch a perſon as is capable of Tithes, and may Sue for the ſamedHob. 30….. In Love and Piggots Caſe it was ſaid, That if a Leſſee for years be Sued in the Spiritual Court for Tithes, he in the Reverſion may have a Prohibition. Paſch. 29. El. B. R. Cro. Rep. par. 1. And a Lay-man lawfully Intereſſed in Tithes, being diſſeized thereof, or wronged therein, may have his Remedy for them in the Kings Temporal Courts. This takes not away the ordinary Remedy for them in the Eccleſiaſtical Court; the Law (as to that) being as it was before the StatuteseDyer 133. Co. 11. 13.. Likewiſe, for refuſal to pay Tithes, or not ſetting forth Predial Tithes, the Parſon may Libel in the Eccleſiaſtical Court, or he or other Proprietor thereof may Sue at the Common Law, or for the Subtraction thereof, at their Election, and recover the Treble value of the Tithes fAdjudg. 29 El. Wood's Caſe. St. 2 Ed. 6. Vid. Co. 2. par. Inſt. 650. b. Hil. 40 El. C. B. Rot. 699. Bedell's Caſe acc.. Yet where only the Right of Tithes doth come in debate, and not the right of Patronage, in ſuch caſe it hath been held, That the Eccleſiaſtical, not the Temporal Juriſdiction, ſhall take cognizance thereof; yea, though both parties claim by Preſcription, which in it ſelf is a matter Triable at the Common Lawg12 Ed. 4. 24. Mich. 29 El. B. R. Adjudg. acc. 35 H. 6. 39. acc.. But where the parties Litigant are both Eccleſiaſtical perſons, and the Claim of the one be for an Annual Penſion out of the Parſonage of the other, although he claim the ſame by Temporal grounds, viz. by Preſcription and Real Compoſition, he hath his Election to ſue for the ſame either in the Eccleſiaſtical, or in the Temporal Court: And by the Statute of 34 H. 8. c. 16. Eccleſiaſtical perſons may ſue for Penſions in the Eccleſiaſtical Court; but if he brings a Writ of Annuity for the ſame, and declares upon the Preſcription, he hath then determined his Election, that if afterwards he Sue for this Annuity in the Eccleſiaſtical Court, a Prohibition will liehHugh. Parſons Law. c. 27. p. 292.. If Suit be in the Eccleſiaſtical Court between Parſon and Vicar for Tithes, Prohibition hath alwaies been denied, if there be not other matter determinable by the Common Law. Mich. 16 Jac. B. R. Roll. Rep. But where the Queſtion is only between the Parſon and the Vicar, it is to be decided in the Eccleſiaſtical CourtiMore. 1267.. Yet it is ſaid, That a Real Contract, though made between Eccleſiaſtical perſons and of Eccleſiaſtical things, is only cognizable at the Common LawkMarſh. 87.. But if a Cuſtome of Tithing be agreed by and between both parties, it may be ſued for in the Spiritual Court; but if the Cuſtome be denied, a Prohibition may be awarded, till it be Tried at Common Law lHob. 247.. But where there is a Modus Decimandi, be it of Lands, or a certain Annual Sum of money, or other profit time out of mind given to the Parſon and his Succeſſors, in full diſcharge of all Tithes in kind in ſuch a place certain; if this Sum be not paid, yet may not the Parſon ſue for Tithe in kind, but for the Money in the Eccleſiaſtical Court: But yet the Modus it ſelf is Triable at the Common Law, and not in the Spiritual CourtmCo. Select Caſes. 40. 46.. Likewiſe, after that the Tithes are carried away out of the Ground, it hath been held, Suit cannot then be commenced for them in the Eccleſiaſtical Court, becauſe they are then become Lay-Chattels, and the Property thereof is alterednTr. 12 Jac. B. R. Caſe Reynolds & Hayes. Rol. Rep. vid. 38 Ed. 3. 13. by Finehden. Co. 11. par. Dr. Grant's Caſe.. And for the not ſetting forth of Tithes, not only the Parſon or Rector, but alſo the Farmer of the Rectory may ſue upon the StatuteoMore. Caſe 192.. The bare ſevering or ſetting forth of Tithes doth not make them to become Lay-Chattels, but the carrying them away out of the Ground doth: And therefore if Tithes be ſevered, and ſet forth, and afterwards the Parſon Leaſe out the Parſonage, not mentioning the Tithes, the Tithes ſet forth ſhall paſs; for although they be divided and ſevered, yet they are as yet Spiritual Duties of the Parſonage: But if the Tithes be carried into the Barn, and afterwards the Parſon Leaſeth out his Parſonage, with all Profits, &c. thoſe Tithes ſhall not paſs to the Leſſee, for that now they are become Lay-ChattelspMic. 6 J…c. C. B. Smith's Caſe. Adjudg.. It was Agreed clearly in Cannen's Caſe, That if a Pariſhioner ſever his Hay, and it be made into Reeks or Cocks, and after fell it, the Parſon cannot ſue the Vendee for the Tithes thereof, but him that ſevered it, and on this matter Prohibition was granted. H. 16. Jac. B. R. Roll. Rep. If a Pariſhioner doth not ſet forth his Tithes, or ſubtracteth them after they be once ſet forth, the Parſon may Libel againſt him in the Spiritual Court; or elſe by the Statute of 2 Ed. 6. cap. 13. the Parſon or other Proprietor of the Tithes may have their Action in the Kings Temporal Courts, for the not ſetting forth or ſubtracting of them at their Election, and ſhall recover the Treble value of the Tithes in an Action of Debt: for although the Treble value be not given to the Parſon, or other Proprietor of the Tithes, by any expreſs words of the Statute; yet foraſmuch as he is the party grieved, and hath the Right of the Tithes in him, the Treble value is given to him. For whereſoever a Statute giveth a Forfeiture or penalty againſt any one, who wrongfully detaineth or diſpoſſeſſeth another of his Right or Intereſt; in that caſe he that hath the wrong, ſhall have the forfeiture or penalty, and ſhall have his Action at the Common Law for the ſame, or he may Sue in the Eccleſiaſtical Court for the ſameqMic. 29 El. Wood's Caſe. adjudg. Co. 2 par. Inſt. 650.. But in his Action at Common Law it ſeems, he ſhall recover no Coſts, as hath been Adjudged r43 El. C. B. Sr. Moyle Finche's Caſe. & vid Hil. 40 El. B. R. Rot. 699. Bedell's Caſe. acc.. But if the Parſon or other Proprietor will ſue in the Eccleſiaſtical Court for the ſubtraction of the Tithes, he ſhall recover there but the double value of them; becauſe in that Court he ſhall recover the Tithes themſelves, which is equivalent to the Treble value at the Common LawsCo. 2. par. Inſt. 651. a.. In another Caſe, where Debt upon the Statute of 2 Ed. 6. was brought, for not ſetting forth of Tithes; the Plaintiff ſhewed, That Two parts of the Tithes did appertain to the Rectory, and a Third part to the Vicarage, and that he had a Leaſe for years of the Rectory, and another Leaſe of the Vicarage: And for not ſetting forth of the Tithes he demanded the Treble value: upon Non Debet, it being found for the Plaintiff, it was urged in ſtay of Judgment, that he ought to have brought ſeveral Actions, being grounded upon ſeveral Leaſes, as his Title is ſeveral. But it was Reſolved, That the Action was well brought, in regard he had both Titles in him; and the Action is brought upon the wrong, becauſe he did not ſett out the Tithes tHil. 2 Jac. B. R. Sr. Rich. Chaepernon & Hill's Caſe. Cro. 2. pa. 68.. Again, in Debt for not ſetting forth of Tithes upon the Statute of 2 Ed. 6. The Caſe was, Corn was growing upon the Glebe-Lands of the Vicar, which was diſcharged of Tithes being in his own uſe: It happened that the Vicar died before the Tithe was ſevered, and his Executors did cut and carry away the Corn; and he that had the Parſonage appropriate brought the Action: The Counſel of the Defendant prayed the Opinion of the Court, whether he might plead Nihil debet: But the Court refuſed to deliver their Opinion in it, becauſe it hanged in Suit before themuTr. 15 Jac. B. R. Horne & Cotton's Caſe. Hob. 387.. In the Caſe of Mountford againſt Sidley it was ſaid, That where Tithes are ſett out, the Parſon hath a liberty for a convenient time to come and carry them away: And this convenience of Time is triable by a Jury; if he exceed this, he ſhall be ſubject to an Action, and then by Judgment of Law he ſhall be taken to be a Treſpaſſer ab initio: Otherwiſe, it ſhall be of a Licenſe in Fact given by the Parſon himſelf. And it was holden by the Court, if the Corn had continued over long, his Remedy had been by Action upon the CaſewHill. 22 Jac. B. R. Rob 212. Mountford & Stdley's Caſe. Bo…ſtr. 3. par. 336, 337. vid. Trin. 21 Jac. B. R. Wiſeman & Denham's Caſe. Gods. 329. And as a Parſon ought to have convenient time to carry away his Tithes, ſo likewiſe he ought to have for that end free ingreſs, egreſs, and regreſs, to, through, and from the Land where the Tithes are, wherein if he meet with any obſtruction, he ought to ſee how he Sues and lays his Action; for in a Caſe, where a Parſon Libelled for Tithes in the Eccleſiaſtical Court, and ſet forth; That the Tithes were ſet forth, and that the Defendant did hinder him and ſtop him from carrying them away: But becauſe he did not Sue there upon the Statute of 2 Ed. 6. for he did not mention the Double value as he ought, and it was Agreed by all the Juſtices, he ought to have done; nor mention the Statute, as he ought alſo to have done; a Prohibition in that Caſe was awardedxP. 17 Car. C. B. Adj. acc. Hugh. Abr. Diſmes, Sect. 4. §. 7.. The Grant of a Tithe for Life to begin at a day to come, is not good. Yelvert. 131. If a man will lett a Leaſe of his Tithes, the Leaſe muſt be by Deed, and not by word only; therefore, if a Parſon doth Demiſe his Rectory for years, the Tithes will paſs incluſive, although the Leaſe be by word only; but if the Parſon Leaſe his Tithes alone, they will not paſs, unleſs the ſame be by Deed or WritingyTr. 26 El. B. R. Wit… & Paunder's C. Adjudg. acc.. Yet the Parſon may Demiſe his Tithes to the Owner of the Land, for a year by word only, as hath been agreed by all the JuſticeszM. 2 Car. B. R. Bellamy & … Caſe. …ot 175. Goab. 373.; but to a Stranger he cannot Demiſe them, otherwiſe than by Deed: And although Tithes will (as aforeſaid) paſs by Contract to the Owner of the Soil; yet may the Parſon ſue the Owner for Tithes in kind in the Spiritual Court, and (as it hath been holden) the Owner by reaſon of the Contract, ſhall not have a ProhibitionaMich. 8 Ja. C. B. in C…fes Caſe.. In which caſe the Ower of the Soil may ſue the Parſon upon the Contract in the Temporal Court, and recover as much in Dammages; but then in his Pleading he muſt not declare of a Verbal Contract, but muſt ſet forth the ſame to have been made in Writing, and ſo it hath been AdjudgedbM. 7 Jac. C. B. in …awling's Caſe.. And in the Lord Shandois Caſe it was holden by the Court, That a Suggeſtion of an Agreement between him and the Parſon, in conſideration of a certain Sum to be yearly paid to the Parſon during their Joynt-Lives, and his continuing Parſon, that his Meſſuage and Lands in the Pariſh of D. and the Tenants thereof, ſhould be diſcharged from the payment of Tithes thereof, ſhewing, that the ſaid yearly Sum was paid accordingly, and that notwithſtanding the Defendant ſued the Plaintiff, being his Farmer, for Tithes: In this Caſe it was held, That this was not a ſufficient Surmize to maintain a Prohibition: For an Agreement to be diſcharged from Tithes, may be a year by word; but to have ſuch an Agreement for life or years, cannot be without DeedcM. 4 Car. B. R. in Hawes & Brayfield's Caſe. Cro. 2. par. 137. vid. Nelſon & Prettiman's C. & Rolls & Roll's Caſe. B. R. Adjudg. acc. ibid.. Likewiſe in an Ejectione Firme brought of a Leaſe of Tithes, the Plaintiff did not ſhew, that the Leaſe was by Deed: and becauſe Tithes cannot paſs without Deed, after a Verdict found for the Plaintiff: It was Ruled to be ill, and Adjudged for the DefendantdP. 19 Jac. B. R. Bothe & Crompton's C. Cro. 2. pa 613.. To conclude, In the 19 El. B. R. it was debated whether Tithes were Jure divino, or by the Conſtitution of men only? The Judg. were all it ſeems of Opinion, That they were due as well by the Conſtitution of Kings as by the Law of Gode19 Eliz. B. R.. And therewith doth Dr. & Stu. 166. if the Qu. be de Quota parte: For there it is held, that the 60 part is due only by mans Law. And the Opinion of Gerſon the Divine, is cited in his Treatiſe, Entituled Regulae Morales, where it is ſaid, Solutio Decimarum Sacerdotibus eſt jure Divino, quatenus inde ſuſtentur; ſed quoad hanc quam illam partem aſſignare, aut in alios reditus commutare, Poſitivi juris eſt. And elſewhere, Non vocatur portio Curatis Decima pars, imo eſt interdum viceſima, aut triceſima fDr. & St…: 166. & 19 E…. Dyer in B. R. Adjudg. vid. Hugh Abr. Diſmes Sect 1. §. 11, 12.. And in He…ſloe's Caſe, Co. 9. par. it is ſaid, That Tithes, Quatenus Tithes, were Spiritual things, and due ex jure Divino, and were not accounted as Temporal Inheritances gHenſloe's Caſe. Co. 2. par.. Hence it is, That where a Parſon leaſed all his Glebe Lands, with all Profits and Commodities, rendring 13 s. 4 d. pro omnibus exactionibus & demandis; and afterwards Libelled in the Spiritual Court againſt his Leſſees for the Tithes thereof. It was the Opinion of the Court, That Tithes are not things iſſuing out of Lands, nor any Rent or duty, but Spiritual; and if the Parſon doth Releaſe to his Pariſhioners, all Demands in his Lands, his Tithes thereby are not extinct; and therefore a Conſultation was grantedhTr. 31 El. B. R. St…le & Miller's Caſe. Leon. 300.. And in the like caſe it hath been Adjudged, That the Leſſee ſhould pay Tithes to the Parſon, for that they are jure Divino due, and cannot be included in Renti32 Eliz. in Dabbi…gtons Caſe..
If a Pariſhioner ſets forth his Tithes, and ſever the Tenth part from the Nine parts juſtly and truly, although he doth not give Perſonal notice to the Parſon, nor general notice in the Church of the time of ſetting forth his Tithes, whereby the Parſon might be preſent at the ſetting of them forth, and to ſee that it be juſtly done; yet it is a good ſetting forth of the Tithes, Mich. 13 Car. B R. Chaſe & Ware, per Cur. Intratur Tr. 13 Car. rot. 564.as in the Caſe between Chaſe and Ware, in a Writ of Error upon a Judgment in an Action upon the Caſe againſt the Parſon, for leaving his Tithe of Hay upon the Pariſhioners ground after notice of ſetting them forth, whereby the Pariſhioner loſt his Graſs there. But it was not alledged, that the Parſon had notice of the time of ſetting them forth; and yet the Court affirmed the Judgment againſt the Parſon.
A. Parſon in Conſideration of 20 s. yearly, promiſed to B. that B. ſhould pay no Tithe for a certain Wood, per parol; and in Conſideration thereof B. promiſed to pay the 20 s. yearly, and this Agreement was during their Lives. B. made a Leaſe at Will of the Wood;Trin. 21 Jac. B. R. Bennet verſ. Snell. Rol. Rep. par. 2. the Leſſee had a Prohibition againſt him, for the Agreement was good; and Jermyn demanded, what Remedy againſt the Leſſe for the 20 s. Doderidge, None; but he ſhall have Action on the Caſe againſt B. or his Executors; but the Leſſee for years may have Action againſt the Parſon, if he Sue him in the Eccleſiaſtical Court. For the Caſe was, There was an Agreement per parol made between S. Parſon, and B. the Pariſhioner: B. promiſed to S. for himſelf, his Executors and Aſſigns, to pay him Ten load of Wood, and 10 s. for the Tithe of a Wood during the life of S. And S. promiſed not to Sue him, &c. for any other Tithe. B. dies, his Executor made a Leaſe at Will of the Wood; the Queſtion is, whether the Tenant at Will, may take his Action againſt the Parſon who ſued him for other Tithes, &c.
In a Prohibition againſt a Parſon who ſued for Tithes, it was Surmized, That the Clerk of the Pariſh and his Predeceſſors,S…vil & Woods Caſe. Cro. par 1. Aſſiſtants to the Miniſter, had uſed to have five ſhillings for the Tithe of the Lands, where, &c. It was the Opinion of the Court, That if this Special matter be ſhewed in the Surmize, it might perhaps be good by reaſon of long continuance: But they held that by Common intendment, Tithes are not payable to a Pariſh-Clerk, and he is no party in whom a Preſcription can be alledged, wherefore a Conſultation was awarded.
The Parſon of T. ſued for Tithe-Wood of the Park of T. for a Prohibition it was ſurmized, That he and all thoſe, &c. time out of mind,Sherburne's Caſe. Cro. par. 1. &c. had uſed to pay to the Vicar of T. ten ſhillings yearly for all Tithes of Wood growing in the place, and the proof was, That he paid ten ſhillings for diſcharge of Tithe-Wood in the Park and two other places: The Prohibition was denied, and a Conſultation awarded, becauſe the right of Tithes between the Parſon and the Vicar came in queſtion, and becauſe the party failed in the proof of his Preſcription.
In a Prohibition to ſtay Suit for Tithes, ſurmizing that he ſet forth his Tithes, and for ſome reaſonable cauſe he detained part of them:Leigh & Woods Caſe. Cro. par. 1. And the Parſon ſued him in the Eccleſiaſtical Court; upon which it was Demurred; becauſe by the fetting forth they were Lay-Chattels. But the Court held, That the Prohibition did not lie; for againſt the party himſelf, who ſetteth forth his Tithes, a Suit is maintainable in the Eccleſiaſtical Court, if he detains them, although he might have his Remedy for them at the Common Law: Otherwiſe, if they were taken away by a Stranger after they were ſet forth.
For a Prohibition it was Surmized, That he had uſed to pay the Tenth ſheaf of Corn,Ingolib…y and Johnſon's C. Cro. par. 1. the Tenth Cock of Hay, the Tenth Fleece of Wool (and ſo the like) in ſatisfaction of all Hay, Corn, Cattel, &c. And it was held, That it was no ſufficient Surmize for a Prohibition, becauſe that which he uſed to pay is but the Tenth in kind.
In Sands and Pruries Caſe the queſtion was, whether Tithes were grantable by Copy: Cro. ibid.It was Objected they could not, becauſe it is againſt the nature of Tithes, whereof none could have property before the Council of Lateran, and it was impoſſible there ſhould be any Cuſtome to demiſe them by Copy, when none had intereſt in them, and they cannot be parcel of a Mannor, for they are of ſeveral natures, though united in one mans hands: But by the Court Reſolved, they might be granted by Copy, ſo it had been time ſo out of mind.
A Pariſhioner ſevered his Tithes, but being in a Cloſe, the Gate was locked,Blackwell's Caſe. Cro. par. 1. ſo as the Parſon could not come at them: The queſtion was, whether the Gate were locked or open, and thereupon a Prohibition brought. The Court was of Opinion, that although the Tithes were ſevered, yet they remain Suable in the Eccleſiaſtical Court, and then the other is but a conſequent thereof, and Triable there, and the Prohibition denied.
In Sharington and Fleetwood's Caſe it was Reſolved, That if a Parſon Libels for Tithes, More's Rep.and a Prohibition is granted, and after he Libelleth for the Tithes of another year, the firſt Suit not being determined, an Attachment upon the Prohibition lieth againſt him.More's Rep. And in the Caſe between Talentire and Denton, where the Biſhop of Carliſle being ſeized in Fee of Tithes in right of his Biſhoprick, made a Leaſe of them for Three Lives, rendring the ancient Rent, the Tithes having been uſually demiſed for the ſame Rent; It was Reſolved, That the Leaſe was not good againſt his Succeſſor, becauſe he had not remedy for the Rent by Diſtreſs or Action of Debt: Otherwiſe it had been, if only a Leaſe for years, for there Debt lieth for the Rent.
In Leigh and Wood's Caſe it was Reſolved, That if the Owner ſets forth his Tithe, Ibid. Caſe 1219.and a Stranger takes them, no Suit ſhall be for the ſame in the Eccleſiaſtical Court; but if the Owner himſelf, after he hath once ſet forth his Tithes, takes them away again, the Parſon may Sue him in the Eccleſiaſtical Court for the Tithes.
S. Libelled in the Eccleſiaſtical Court againſt H, for Subtraction of Tithes; the Defendant there pleaded, That he had divided the Tithes from the Nine parts. And then the Plaintiff made Addition to the Libel (in nature of a Replication) viz. That the Defendant divided the Tithes from the Nine parts, Quod praedict. the Plaintiff non fatetur, ſed prorſus diffitetur; yet preſently after the pretended Diviſion, in fraudem Legis, he took and carried away the ſame Tithes, Trin. 44 El. B. R. Spratt againſt Heal. Co. lib. 13.and converted them to his own uſe: and thereupon the Plaintiff obtained Sentence in the Eccleſiaſtical Court, and to recover the Treble value according to the Statute of 2 Ed. 6. cap. 13. And thereupon H. made a Surmize, that he had divided his Tithes, and that the Plaintiff ought to Sue in the Eccleſiaſtical Court for the Double value, and at the Common Law for the Treble value. But it was Reſolved by the whole Court, That the ſaid Diviſion mentioned in the Libel, was not any diviſion within the Statute of 2 Ed. 6. c. 13. For that Act provides, That all the Kings Subjects henceforth, ſhall truly and juſtly without Fraud, divide, ſet out, yield and pay all manner of other Predial Tithes in their proper Land: So as when he divides them to carry them away, he divides them not juſtly without fraud; and therefore the ſame is out of the Statute: and where the words of the Statute are [divide, ſet out, &c.] their Predial Tithes, &c. and if any perſon carry away his Corn and Hay, and other Predial Tithes, &c. And to make an evaſion out of theſe words [this Invention was deviſed]; the Owner of the Corn by Covin ſold his Corn, before Severance, to another, who as Servant to the Vendee reaped it, and carried it away without any Severance, pretending that neither the Vendor, becauſe he did not carry them away; nor the Vendee, becauſe he had no property in them, ſhould be within the Statute: But it was Reſolved, That the Vendor ſhould be charged in that caſe with the penalty of the Statute, for he carried them away, and his fraud or covin ſhall not help him. Vid. 8 Ed. 3. 290. 9 H. 6. 41. 33 H. 6. 5. But it was Reſolved, That the Plaintiff could not Sue in the Eccleſiaſtical Court for the Treble value, but for the Double value he might.
A Parſon Libels in the Eccleſiaſtical Court upon the Statute of 2 Ed. Whereupon a Libel for Tith. a Prohibition; and where a Conſultation ſhall be granted.6. cap. 13. for Tithes. The Caſe was this, The Pariſhioner ſets them out according to the Statute; but they being ſo ſet out, he would not ſuffer the Parſon to come and take them away, thinking by this means, and this way to avoid the Statute: And upon this the Parſon Libels in the Eccleſiaſtical Court for theſe Tithes; the Defendant there Surmizes, That he did not hinder him from the having of his Tithes, but ſaith, That he did hinder him in coming for his Tithes one way (which was the uſual way) but that he might have come for them another way: And upon this a Prohibition was prayed, and granted, ſuppoſing that there was no queſtion at all as touching the payment of Tithes, but as touching the Way to come for them; and upon this whole matter the Parſon prayed a Conſultation. The whole Court were clear of Opinion, That ſuch a ſetting out of Tithes, as the ſame appeared here to be in this Caſe, without ſuffering the Parſon to come and take away his Tithes, that this is a fraudulent and no good and ſufficient ſetting forth of Tithes, according to the Statute, and as the Statute doth require, which ought to be a fruitful and effectual ſetting forth of his Tithes; for in ſo doing, he ought to ſet forth his Tithes, and alſo to ſuffer the Parſon to come, have, and to take away his Tithes: otherwiſe, unleſs he do alſo perform this, the ſetting out of his Tithes here is to no purpoſe for to excuſe him, and to the Surmize here made for the Way.A Conſultation granted. The whole Court clear of Opinion, That this is no waies at all material, and ſo without any further motion or Arguments, by the Rule of the Court, a Conſultation was granted. Vid. Bulſtr. par. 1. fo. 108. Hill. 8 Jac.