Abridgment of Ecclesiastical Laws, Treatise · Chapter 32 · Part 4 – Part 5

Abridgment of Ecclesiastical Laws · Treatise · Chapter 32 · Part 4 – Part 5

p. 398D

DEcimae Majores. ſuch as Corn, Hay, &c. belong to the Parſon: Decimae Minores or Minutae, as Saffron, Herbs, &c do belong to the Vicar. Paſch. 38 Eliz. B. R. Beding and Feak's Caſe. & Mich. 1 Car. C. B. Sir Rich. Ʋdal and the Vicar of Alton's Caſe.

Deer, though they are Ferae naturae, yet they may be given for Tithes; and although they are not Tithable of themſelves, yet they may be given for a Modus Decimandi. Hill. 6 Jac. C. B. the Vicar of Clare's Caſe. Sharp and Sharp's Caſe. Noy 148. acc.

Deprivation: A Parſon may after his Deprivation ſue in the Eccleſiaſtical Court for ſubtraction of Tithes, which were due to him before his Deprivation, and a Prohibition will not lie in the Caſe. Adjudged, Hill. 13 Jac. Cole's Caſe.

Diſcharge of Tithes may be either by Cuſtome, Preſcription, Compoſition, Statute, Unity of Poſſeſſion, or by Priviledge, as to Religious Orders now not of uſeggCo. 1. pa. 33. & 2 Ed. 6. 13. & 32 H. 7. Co. 44 & Brownl. 2. pa. 33.. There may be alſo a Diſcharge of Tithes as againſt the Vicar, by the payment thereof unto the ParſonhhYelvert. 86.. And it may be by a Real CompoſitioniiLane 17. Hob. 269, 296, 309., but it cannot be by a Verbal Agreement for moneykkHob 176.. And if there be a Diſcharge not of the Tithes themſelves, but from the exact payment thereof by a Modus Decimandi, or Annual recompence in ſatisfaction thereof, it muſt be by Cuſtome or PreſcriptionllCo. 13. 16.. By the Common Law a Lay-man, although he were capable of a Diſcharge of Tithes by Grant of the Parſon, Patron, and Ordinary, or by Compoſition; yet at that Law none had a capacity to take or receive them, ſave only Eccleſiaſtical perſons, or a Mixt perſon, as the KingmmCo 2. B. of Wincheſter's Caſe.. And by the ſame Law, if a Biſhop were abſolutely Diſcharged of Tithes by Preſcription, whilſt the Lands were in his hands, his Demiſing thereof to a Lay-man could not make the ſame chargeable therewithnnCo. ibid.. For in Wright's Caſe, where the Biſhop of W. was ſeized of a Mannor in right of his Biſhoprick, Preſcribed that he and all his Predeceſſors had held the ſaid Mannor, and the Demeſns thereof time out of mind for him, his Farmers, Tenants for years or at will, Diſcharged and acquitted from payment of Tithes for theſe Lands; the Biſhop made a Leaſe for years of parcel of the Demeſns: The Farmer of the Rectory Libelled in the Eccleſiaſt Court againſt the Leſſee for Tithes; all which matter he pleaded in the Eccleſiaſtical Court, and the Judge there refuſed to allow of the Allegation in Diſcharge of the Tithes: It was held in this caſe, (1) That if the Lands of the Biſhop p. 399were abſolutely Diſcharged in his hands by Preſcription, the Demiſing of it to a Lay-man could not make it chargeable with Tithes. (2) That a Spiritual perſon may Preſcribe in non Decimando. (3) That the Refuſal by the Eccleſiaſtical Judge to allow the Allegation in Diſcharge of Tithes, is not TraverſableooWright and Wright's Caſ. Cro. par. 1.. In like manner the King being ſeiſed of Lands, parcel of the Foreſt of B. in Fee in right of the Crown, Diſcharged of the payment of Tithes, granted the Lands to the Earl of Hertford in Fee; and it was held, that the Patentee ſhould be Diſcharged of payment of Tithes; and a Prohibition was granted in that CaſeppMordant and Cummin's Caſe Cro. par. 3.. Yet in another Caſe, where it was ſurmized for a Prohibition, that the Prior of B. was ſeiſed of Lands, parcel of his Priory, and held them till the diſſolution, Diſcharged of Tithes, for his Farmers and Tenents for life or years; that the Priory was diſſolved 27 H. 8. that the King was ſeiſed of the Lands, and ſhews the Statutes of 32 H. 8. and 2 Ed. 6. and that the King died ſeiſed of the Lands, that by mean Conveyances it was conveyed to J. S. and that the Plaintiff being his Tenant for years, was ſued by the Parſon of B. for the Tithes of theſe Lands. It was Reſolved by the Court, That the Lands which came to the Crown by the Statute of 27 H. 8. ſhould not be Diſcharged from the payment of Tithes, but ſhould pay the ſame, although the Lands in the hands of the ſaid Religious Perſons or Houſes were Diſcharged from the payment thereof, for that the Priviledges were Perſonal Priviledges, which were extinguiſh'd by the ſaid Statute of Diſſolutions, and there are not any words in the ſaid Statute of 27 H. 8. to ſave the Priviledges; and the Statute of 31 H. 8. being a ſubſequent Law, had not reſpect to theſe PriviledgesqqMich. 11 Car. B. R. Sydown and Holme's Caſe. Cro. par. 3. Parkins and Hind's Caſe. Cro. par. 1. Mich. 28 Eliz. in Cur. Wardor. More.. Likewiſe, where a Parſon by Deed Indented leaſed his Glebe cum omnibus proficuis & Commoditatibus: It was notwithſtanding Adjudged, that the Leſſee ſhould be charged with the payment of Tithes. And in Branches Caſe it was Reſolved, That an Union of Copyhold Lands, and of the Parſonage in the hands of the Parſon, as Parſon Imparſonee, was no Diſcharge of the Tithes of the Copyhold Lands. And in this Caſe it was alſo Adjudged, That a Farmer of Lands might Preſcribe in Modo Decimandi, but not in non Decimando.

The Statute of 31 H. 8. gave all Colledges Diſſolved to the Crown, in which there is a Clauſe, That the King and his Patentees ſhould hold Diſcharged of Tithes, as the Abbots held: Afterwards the Statute of 1 Ed. 6. gave all Colledges to the Crown; but there is in it no Clauſe of the Diſcharge of Tithes: The Parſon Libelled in the Eccleſiaſtical Court; and the Farmer of the Lands of the Colledge of Maidſtone in Kent brought a Prohibition upon the Statute of 31 H. 8. The Court was clear of Opinion, That the King p. 400had the Lands of the Colledge by the Statute of 1 Ed. 6. and not by the Statute of 31 H. Green and Buskyn's Caſ. Mores Rep.8. But the Juſtices doubted, the Lands coming to the King by that Statute, whether they ſhould be Diſcharged of Tithes by the Statute of 31 H. 8. there being no Clauſe in the Statute of 1 Ed. 6. for Diſcharge of Tithes: But it was Reſolved by the Juſtices, That Unity without Compoſition or Preſcription, was a ſufficient Diſcharge of Tithes by the Statute of 31 H. 8.

The Templers were Diſſolved, and their Poſſeſſions and Priviledges by Act of Parliament 17 Ed. Quarles and Sparting's C. Mores Rep.2. transferred to St. Johns of Jeruſalem; and their Poſſeſſions by Act of Parliament 32 H. 8. cap. 24. given to the King: It was Reſolved, That the King and his Patentees ſhould pay Tithes of thoſe Lands, although the Lands propriis ſumptibus excolantur, becauſe the Priviledges to be Diſcharged of Tithes were proper to Spiritual perſons, and ceaſed when the perſon Spiritual was removed: And the Statute of 31 H. 8. of Diſſolutions did not extend to ſuch Lands as came to the King by Special Act of Parliament, as thoſe Lands of St. Johns of Jeruſalem did. And Mich. 6. Jac. C. B. in a Caſe de Modo Decimandi it was ſaid, That one may be Diſcharged of Tithes five waies: (1) By the Law of the Realm, viz. the Common Law, as tithes ſhall not be paid of Coles, Quarries, Bricks, Tiles, &c. F. N. B. 53. and Reg. 54. nor of the After-paſture of a Meadow, &c. nor of Rakings, nor of Wood to make Pales, or Mounds, or Hedges, &c. (2) By the Statutes of the Realm, as 31 H. 8. 13. 45. Ed. 3. &c. (3) By Priviledge, as thoſe of St. Johns of Jeruſalem in England, the Ciſtertains, Templers, &c. as appears 10 H. 7. 277. Dyer. (4) By Preſcription; as by Modus Decimandi, annual recompence in ſatiſfaction. (5) By real Compoſition. By all which it appears, that a man may be Diſcharged of payment of Tithes; yet a Lay-man ought not to preſcribe in non Decimando, albeit the may in modo Decimandi. And this in effect agrees with Tho. Aquinas in his Secunda Secundae, Quaeſt. 86. art. ult. vid. Dr. & Stu. lib. 2. c. 55. fo. 164. And the Cauſes why the Judges of the Common Law permit not the Eccleſiaſtical Judges to try Modum Decimandi, being pleaded in their Courts, is, becauſe that if the Recompence which is to be given to the Parſon in ſatisfaction of his Tithes, doth not amount to the value of this Tithes in kind, they might overthrow the ſame: And that appears by Lindwood, Mich. 6 Jac. C. B. Caſe of Modus Decim. Co. lib. 13.Mic 6Conſtit. Mepham. de Decim. c. Quoniam propter, verb. Conſuetudines. For this Reaſon it is ſaid a Prohibition lies: and therewith agrees 8 Ed. 4. 14. vid. 7 Ed. 6. Dyer 79. and 18 Eliz. Dyer 349.

In a Prohibition upon a Suit in the Eccleſiaſtical Court, by the Defendant the Vicar of D. for Tithes: A Prohibition prayed upon p. 401his Plea thereof a Modus Decimandi, Mich. 14 Jac. B R. Wintell againſt Childe. Bulſtr. par. 3.to pay ſo much yearly to the Parſon of Dale, in Diſcharge of his Tithes and the ſame Plea there diſallowed. The whole Court agreed, that this Modus between him and the Parſon, will not diſcharge him from payment of Tithes, as to the Vicar; and therefore by the Rule of the Court a Conſultation was granted. Alſo the Court was of Opinion, That where a Biſhop holds Lands diſcharged of Tithes, and he makes a Feoffment of the Land, the Feoffee ſhall be diſcharged of Tithes; and the like, if the King hath ancient Foreſt Lands diſcharges of Tithes,Mich. 9 Jac. C. B. Brownl. Rep. par. 1. Caſes in Law, &c. and the King grants this Land, the Grantee is diſcharged of Tithes: And it is a General Rule, That he which may have Tithes, may be Diſcharged of Tithes. So long as the Land is occupied by him who hath the Fee-ſimple, which did formerly belong to the Order of Ciſtertians, it ſhall pay no Tithes;Brownl. ibid. but if he lett it for years or life, the Tenant ſhall pay Tithes. For anciently there were many large Eſtates wholly exempted from paying Tithes, as Land belonging to the ſaid Ciſtertian Monks to the Knights Templers, and Hoſpitallers: As in the Earl of Clanrickard's Caſe, who Libelled in the Eccleſiaſtical Court for the Tithes of Hay of a certain Meadow againſt Dame Denton, who pleaded, That the Prior of A. was ſeiſed of that Meadow as parcel of the Poſſeſſions of the Priory, and that they held it diſcharged time out of mind, &c. whereupon Iſſue was joyned upon a Prohibition, and it was found for the Plaintiff; for that the Land was only diſcharged when it was in the hands of the Priory, and not when it was in the hands of their Farmers, and they were of the Order of Ciſtertians, whereupon a Conſultation was granted: And now a new Prohibition was prayed, for that in the Eccleſiaſtical Court they had added to the former Libel, when the Statute of 50 Ed. 3. cap. 4. is, That whereas a Conſultation is duly granted upon a Prohibition, that the ſame Judge may proceed in the ſame caſe by virtue of the former Conſultation, notwithſtanding any other Prohibition. Provided alwaies, that the matter in the Libel of the ſaid cauſe be not altered, enlarged, or otherwiſe changed; Dr. Pope, Doctor of the Civil Law ſaid, That there was not any enlarging or changing in ſubſtance of the Libel in queſtion; for whereas in the former Libel it was, That they had uſed to pay Tithes time out of mind, now in the ſecond Libel is added, That although the Prior was diſcharged, yet they, viz. the Farmers, have paid Tithes for 20, 30 or 40 years, and time out of mind. Montague Ch. Juſtice ſaid, That it ſeem'd that that was not an alteration: but Doderidge and Houghton Juſtices held, That that was an alteration of the Libel; for now by that laſt Libel, They could fetch them in for Tithes, though they were diſcharged in the hands of the Abbot: and for that the Tithes had been paid for 20, 30 or 40 years ſince p. 402the Statute aforeſaid (the which is a ſufficient time to make a Preſcription, according to the Law of the Civilians) they would charge the Land with Tithes in whoſe ſoever hands they are, when by the Statute it ought to be diſcharged only in the hands of ſome, viz. the Priors; and afterwards Dr. Pope pulled off the Addition, which he had made to the former Libel, off from the ſecond Libel. And the whole Court ſaid, That if he proceeded upon that Addition, that Sentence ſhall be given for Tithes, upon any Preſcription ſince the Statute, that then they would grant a Prohibition. Mich. 18. Jac. B. R. Dame Denton's Caſe and the Count of Clanrickard. Roll. Rep. par. 2.

The Order of the Praemonſtracenſes were Diſcharged of all Tithes of their Land, the which Manibus aut ſumptibus excolebant propriis. All the Chief Monks paid Tithe as well as other men,Diſcharge of Tithes. till Pope Paſchal at the Council of Mentz Ordained, that they ſhould not pay Tithes de Laboribus ſuis; and that continued as a general Diſcharge till the time of H. 2. when Pope Adrian reſtrained it to three Orders, viz. the Ciſtertians, the Templers, and the Hoſpitallers. And the Diſcharge which the Order of the Praemonſtracenſes had, was made by Pope Innocent the Third, by his Bull. And after in the Council of Lateran, ne Eccleſia nimium gravaretur, it was provided, That the Priviledge of the Templers ſhould not extend to their Farmers. Vid. Caſe Dickenſon and Greenhall. Mich. 22. Jac. B. R. Roll. Rep. 2. part.

In Hurrey's Caſe againſt Boyer in a Prohibition to the Eccleſiaſtical Court, for ſtay of a Suit there for Tithes of Lands, which were the poſſeſſions of the Hoſpital of St. John of Jeruſalem, upon Suggeſtion that the Prior of the ſaid Diſſolved Houſe of St. Johns had this Priviledge from Rome, which was by divers Councils and Canons; viz. That the Lands of their Predeceſſors, which by their own hands and coſts they did Till, they were not obliged to pay Tithes. In this Caſe it was agreed, That this Hoſpital was not Diſſolved by the Statute of 31 H. 8. c. 18. of Diſſolutions, but by a Special Act made 32 H. 8. c. 24. by which their Corporation and Order was Diſſolved, and their Poſſeſſions given to the King, with all the Priviledges and Immunities thereto belonging, which the King granted to the Plaintiff in the Prohibition; and whether he ſhould hold them Diſcharged of the payment of Tithes was the queſtion. Harris Serjeant urged, That this Immunity was annexed to the Corporation of the Prior, and his Brethren of the ſaid Hoſpital, and doth not come to the King, it being determined by the Diſſolution of the ſaid Hoſpital; and ſo Adjudged in B. R. againſt the Book of 10 Eliz. Dyer. 277. 60. 2. Coke, the Biſhop of Wincheſter's Caſe, 14. B. and the Archbiſhop of Canterbury's Caſe, 47. B. p. 403and 18 Eliz. Dyer 349. 16. Nichols Serjeant to the contrary, and cited a Canon made by the Council of Mag. and another made by Innocent. 3. An. 1215. and divers others, and alſo the Statute of 2 H. 4. 4. and 7 H. 4. 6. and if Land be Diſcharged of payment of Tithes by Preſcription of not Tithing, and this Land come to the King, the Priviledge remains; and theſe Lands are given to the King in the ſame plight and caſe, as they were in the Hoſpitallers; and affirmed the Book of 10 Eliz. Dyer 277. 60. to be good Law; and that the aforementioned Caſes of the Archbiſhop of Canterbury and the Biſhop of Wincheſter, and the words of the Statute of 32 H. 8. 24. gives the King not only the Mannors, Houſes, &c. but alſo all Liberties, Franchiſes, Priviledges, &c. In this Caſe it was Confeſſed, that it came by reaſon of the Order of the Ceſtertians, as appears by the Canon: And Hutton Serjeant arguing for the Defendant, ſaid, that it appears by the Statute of 2 H. 4. 4. that it is Perſonal, and that it differs from the Lands which came to the King by the Statute of 31 H. 8. For by that the King is Diſcharged of payment of Tithes, and ſo are his Patentees; but that this Priviledge is Perſonal, and if ſo, then it is determined by diſſolution of the other, and a perſonal Priviledge in caſe of Tithe is not tranſferred to the King. Barker Serjeant for the Plaintiff in this caſe ſaid, That it was Ordained by Edgar, King of this Realm, that Tithes ſhall be given to the Mother-Church: Alſo Edmund, Ethelſtone, William the Conqueror, and the Council of Magans, ſpecially provided that Tithes ſhould be paid, but did not appoint when they ſhould be paid. But the firſt Law which appointed the quantity, was made in the time of Ed. 1. and this Ordained when they ought to pay the Tenth with the fear of God. And before the Council of Lateran every one might pay his Tithes to what Parſon he would, and then were paid to Monaſteries as Oblations. If a Parſon in one Pariſh claim Tithes in another, as portion of Tithes due by Preſcription to his Rectory, he ought to ſhew the place eſpecially, viz. the place where the Tithes lie. In the Seventeenth year of Ed. 2. the Order of the Templers was diſſolved, and their Poſſeſſions annexed to St. John of Jeruſalem: and they did not claim by any Bull of the Pope, nor other Spiritual Canon, but by Preſcription, which is Priviledge and private Common Law, as appears by the Statute of Weſtm. 2. cap. 74. And Menham's Canon in the time of Ed. 1. ſaith, Let the Cuſtome be obſerved. And another Canon, That Cuſtome of not Tithing, or of the manner of Tithing, if they paid leſs than the Tenth part, ſhall be obſerved. Vid. Panormitan. & Caſ. Hurrey verſ. Boyer, Brownl. Rep. & dict. Caſ. Paſch. 9 Jac. Rot. 1511. C. B. Brownl. Rep. par. 2.

p. 404In the Biſhop of Wincheſter's Caſe, 38 Eliz. it was Reſolved, That at the Common Law none had capacity to take Tithes but Spiritual perſons,Coke 2. The Biſh. of Wincheſter's Caſe. 38 Eliz. fo. 43. or Perſona mixta, as the King▪ and regularly no meer Lay-man was capable of them (except in ſpecial Caſes;) for he could not Sue for them in the Court Chriſtian; and regularly a Lay-man had no remedy for them until the 32 H. 8. A Lay-man may be Diſcharged of Tithes at the Common Law by Grant, or by Compoſition, but not by Preſcription; for in the Books of the Common Law it is commonly ſaid, That a Law-man may Preſcribe In Modo Decimandi, but not In non Decimando: And the reaſon is, becauſe he is not (except in Special Caſes) capable of Tithes at the Common Law, before the Statute of 32 H. 8. cap. 7. And therefore without Special matter ſhewed, it ſhall not be intended that he hath any lawful Diſcharge, and in favour of the Holy Church (although it may have a lawful Commencement) the Law will not ſuffer this Preſcription, In non Decimando, to put it to the Trial of Lay-men. A Spiritual perſon that was capable of Tithes at the Common Law in Pernancy, may Preſcribe to be Diſcharged of Tithes generally, or to have a portion of Tithes in the Land of another. Before the Council of Lateran, every man might give his Tithes to any Spiritual perſon that he would; and if the Lands of the Biſhop were Diſcharged in his hands abſolutely by Preſcription, the Demiſing it to a Lay-man cannot make it chargeable, and the Biſhop might reſerve the greater Rent.

A Parſon by Deed Indented leaſeth his Glebe, cum omnibus proficuis & commoditatibus: Parkins and Hind's Caſe. Cro. par. 1.It was notwithſtanding Adjudged, that the Leſſee ſhall be charged with the payment of Tithes. And in an Action of Debt upon the Statute of 2 Ed. 6. for not ſetting forth of Tithes; the Caſe was, The Lands were a parcel of the poſſeſſion of the Templers, whoſe Lands were annexed to the Priory of St. Johns. The Templers had a Special Priviledge to be Diſcharged of Tithes of thoſe Lands,Cornwallis & Spurling's C. Cro. par. 2. which propriis manibus excolunt. By a Special Act of 32 H. 8. the Poſſeſſions of the Priory of St Johns, were given to the King by general words of all Lands in tam amplis modo, &c. as the Abbots held them. Reſolved, That the Defendant ſhould not be Diſcharged, nor have the Priviledge; for by the Common Law a Lay-perſon was not capable of ſuch a Priviledge, and the King ſhould not have the benefit of the Priviledge, until the Stat. of 31 H. 8. But the Statute extends only to ſuch Poſſeſſions as came to the King by Surrender, and ſhould be veſted in him by that Act, and doth not extend to Poſſeſſions which are veſted in him by another Act. and theſe Lands were given to the King by a Special Act of Parliament, and therefore not Diſcharged of Tithes.

p. 405Dotards, or the Branches of Trees of twenty years growth or upward, are not TithablennMore. Caſ▪ 1270..

Doves in a Dove-houſe do pay Perſonal, not Predial Tithesoo15 Car. Adjudg., but if ſtol… out of a Dove-houſe, no Tithe is to be paid of ſuch ppPaſch. 15 Car. Adjudg. acc.. Tithes ſhall be paid de jure of young Pidgeons. Mich. 14 Jac. B. between Whatley and Hambury Reſolved. Hill. 15 Jac. B. R. Reſolved, and a Prohibition denied in Gaſtrell's Caſe. By Cuſtome Tithes may be paid of Pigeons ſpent in a mans own houſe, but not ſo of Common right. Caſe ibid. But if ſold, they ſhall pay Tithe. dict. Caſ. Whatly.

E

EGgs are Tithed in kind, or according to the Cuſtome of the place, which ſerves for the Tithe of the Tame and Domeſtick Fowl, where their young are not paid in kind; and where Tithe of Eggs is paid, there is no Tithe of the young: And ſo vice verſa, where the Tithe of the Young is paid, there no Tithes of Eggs may be demanded.