Abridgment of Ecclesiastical Laws, Treatise · Chapter 32 · Part 18
V
VEniſon, though not Tithable of it ſelf, yet may be given as Modus Decimandi; Per Aſſiſas Foreſtae, and other Records, it doth appear, that Tithes have been paid, even of Veniſon, in divers parts of England.
Vetches, Tares, and the like, eaten by the Cattel that do the Huſbandry in the ſame Pariſh, be it eaten on the Ground or elſewhere, are not Tithable, unleſs the Parſon hath a Special Cuſtome for it.
Vine is Predial Tithe. Co. Magna Charta, 649.
Ʋnity of Poſſeſſion, or Unity of the Parſonage and Lands, which ſhould pay Tithes, in the hands of Religious and Eccleſiaſtical perſons: By this Ʋnity of Poſſeſſion Tithes are not now diſcharged in Right, though in Payment; ſo that it is not to be pleaded as a Diſcharge of Tithes, but as a diſcharge of the Payment of TithesaHob. 44. 297., This Ʋnity hath been often Reſolved to be a good Diſcharge of the payment of Tithes within the meaning of the Statute of 31 H. 8. bCo. 2. par. Inſt. 655. More 46, 47. Cro. Jac. 608.. Originally this Ʋnity was, where an Abbot, Prior, &c. time out of mind had been ſeized of Lands in themſelves Tithable, and alſo of the Rectory of that Pariſh wherein ſuch Lands did lie: So that Ʋnity of the Parſonage and Lands, which ſhould pay Tithes by Appropriation or otherwiſe, in the hands of Religious and Eccleſiaſtical perſons, had diſcharged from the payment of Tithes: and now ſince the ſaid Statute of 31 H. 8. ſuch an Ʋnity of Poſſeſſion in the ſaid Religious Houſes, and Lands, and Perſons, ſhall be a Diſcharge for the Kings Patentee for the Lands that came to the Crown by the ſaid Statute. But then it was Reſolved, That ſuch an Ʋnity muſt have been Juſta, Libera, Aequalis, and Perpetua. It muſt have been Juſta, claimed by Right, by good and lawful Title, and not by Diſſeiſin, or other extortious and unlawful Acts; for ſuch an Ʋnity had not been a good diſcharge within the Statute. 2. It muſt have been Aequalis, that is, there muſt have been a Feeſimple both in the Lands and in the Tithes, as well of the Lands upon which the Tithes are, as of the Parſonage or Rectory; for if thoſe Religious perſons had held but by Leaſe, that had not been ſuch an Ʋnity as the Statute intended. 3. It muſt have been Libera, free from the payment of any Tithes in any manner; for if their Farmers, Tenants at Will, or Years, had paid any manner of Tithes before the Diſſolution, it may be a ſufficient Bar to avoid the Ʋnity pleaded in diſcharge of Tithes. 4. It muſt have been Perpetua, time out of mind, that ſuch Religious Houſes were Endowed, and ſuch Religious Perſons had in their hands both the Land and the Rectory before the memory of man, or as it ſeems (according to the Rules of Common Law) before the firſt of R. 1. Diſcharged of Tithes; or if the Appropriation were Ancient, as in the time of Ed. 4. ſuch is ſaid to be a good diſcharge of Tithes, either on the account of Perpetual Ʋnity or of Preſcription cSr. Sim. Deg. Law of Tithes, ch. 21. & Hugh. Abr. Diſm. Sect. 3. § 17.. And at this day ſuch an Ʋnity is ſaid to be a good diſcharge of Tithes in the hands of the Kings Patentee, within the Statute of 31 H. 8.dCo. 11. par. 13. Bridle & Nappe…s Caſe.. There may be alſo (as appears at the Common Law) an Ʋnity of Poſſeſſion, different from the former, which ſhall likewiſe diſcharge from the payment of Tithes; but ſuch Diſcharge is only pro tempore, and therefore though it be an Ʋnity of Poſſeſſion, yet it is not a Perpetual Ʋnity in the ſenſe aforeſaid: As if a Parſon of a Church purchaſeth a Mannor within his Pariſh, by this Purchaſe, and Ʋnity of Poſſeſſion, the Mannor which before was Tithable, is now become Non Decimabilis, becauſe he cannot pay Tithes to himſelf; but if he maketh a Leaſe of his Parſonage and Rectory to a Stranger, the Parſon himſelf ſhall pay Tithes of his Mannor to his Leſſee; and ſo if the Parſon maketh a Feoffment of his Mannor, the Feoffee ſhall pay Tithe to the Parſon, becauſe Tithes are due by the Law of God ex Debito, and cannot be extinct, into whoſe hands the Lands come, unleſs they come to the hands of the Parſon himſelf eMich. 30 H. 8. Dyer 43..
Ʋnderwood is Tithable, and of Ʋnderwoods digged up by the Roots Tithe ſhall be paid, and ſo of Hedge-rowsfMich. 11 Jac. C. B. Sharington's Caſ.; likewiſe of Ʋnderwood ſold ſtanding the Tithe ſhall be paid, and that not by the Seller, but by the Buyer. But Ʋnderwood uſed for ſencing of Corn or Paſture pays no TithegHil. 15 Jac. C B. Adjudg. Hide & Ellis Caſe.. An Action of Treſpaſs was brought by a Parſon againſt a Vicar for Ʋnderwoods, and each of them did claim the Ʋnderwoods by Preſcription as his Tithes, that (although their claim was by Preſcription,) yet becauſe the right of the Tithes was in debate only, the Temporal Court was ouſted of the Juriſdiction of themh22 Ed. 4. 24.. But if a Parſon or Vicar claim a portion of Tithes by Preſcription only, which is a Temporal thing, and ſueth in the Spiritual Court; it was holden that a Prohibition liethi29 Eliz. B. R. by S…uit and Cl…rk Juſtices..
In a Prohibition to ſtay Proceedings in the Eccleſiaſtical Court, upon a Libel there by the Parſon for Tithe of Ʋnderwood, by reaſon of a Preſcription in Non Decimando, for the Wilde of Kent, this Wood growing in the Wilde of Kent. Mich. 12 …ac. B. R. … verſ. …. Bulſtr. par. 2.Henden moved the Court for this Prohibition, for theſe Reaſons, (1) A whole Countrey generally may Preſcribe in Non Decimando, in a particular place, and as a whole Countrey may ſo do, by the ſame reaſon a particular perſon may. A ſecond Reaſon; The Statute of 2 Ed. 6. cap. 13. gives life unto this Preſcription, for this particular place and precinct. Coke Chief Juſtice. By Lindwood, a whole Countrey may Preſcribe in non Decimand…; and ſo is Dr. & Stu. cap. ult. fo. 166. b. But it is with this Proviſo, ſo that there is beſides this Maintenance for the Parſon; otherwiſe the ſame is not good. The Statute of 2 Ed. 6. cap. 13. aids you not at all in this Caſe, for a private man cannot in this manner Preſcribe: And to ſay, that the Conqueror never conquered this place; this is but Hiſtorical and Apocryphal, for he was Conqueror by Compoſition had. It is true, that in former time, long ſince this place was not Tithable, becauſe there was no Wood there but great Timber-Trees, which were not Tithable; but theſe being now cut down, waſted, and deſtroyed by the Iron-Mills, and as in many other places; now this place which was not Tithable before, being now Ʋnderwood, and converted into Tillage or Paſture, is now become Tithable, and Tithe ſhall be there paid; and if Waſte and Barren Ground, for the which no Tithe hath ever been paid, if the ſame be now meliorated and converted into Tillage; now by the Common Law Tithes ſhall be preſently paid for this, unleſs the ſame be within the Proviſo of the Statute of 2 Ed. 6. of Exemption from payment of Tithes for a certain time after the melioration of the ſame, as appeareth in the Statute; otherwiſe Tithes ſhall be paid preſently: No Tithes could formerly be paid here in this place, becauſe there were only great Timber-Trees here growing; but now clearly they ought to pay Tithes for the Ʋnderwoods, and this is the only Demand here. The whole Court was clear of Opinion, That no Prohibition ſhould be here granted in this Caſe, but that Tithe ſhould be paid. Coke, Will you allow the Parſon here in this place Tithe-Hay and Corn, and not Tithe-Wood? Doderidge, by Lindwood and Dr. & Stud. a whole Countrey may be diſcharged from payment of Tithes; but this at the firſt of neceſſity ought to have a lawful Commencement by way of Compoſition, or, &c. Coke agreed with him herein, and ſaid unto Henden, Shew unto us an Ancient Writing, by way of a Compoſition for your Diſcharge of payment of Tithes; the Statute of 2 Ed. 6. makes againſt you there, though no Tithe was ever paid, yet upon the melioration of the Land Tithes ſhall be paid preſently, if the Statute had not been made. The Court were all clear of Opinion againſt the granting of a Prohibition, and ſo no Prohibition awarded.