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1576. thing shall be made of them rather than they shall be void. And the king's intent ought not to be utterly subverted.

Grendon

v.

Lincoln.

Answer to the 3d exception.

As to the third exception, viz. that the defendants have not Bishop of shewn that they entered after the death of the incumbent; to this the said counsel wrote in answer, that the patent made the dean and chapter parsons immediately after the death of Haltman, without presentation, admission, and institution, and then if the words shall take such effect, the grant is as fully executed as if all these three things were executed in a common incumbent, and especially as to the admission and institution, by which words they were made fully parsons, and had the spiritual function at the instant of the incumbent's death, and the cure of souls. And as to the induction which gives seisin of the possessions, that was dispensed with by the patent; wherefore the dean and chapter are in the same case as [154] they should be by admission, institution, and induction. And though it should be admitted that the words of dispensing with induction are not equivalent to an induction which gains the seisin, yet the words of the plea in bar are, that after the death of the incumbent the aforesaid dean and chapter were parsons of the same church, and the aforesaid rectory and church to their own proper uses held and yet hold, and thereof then immediately and always afterwards have been and yet are seised in their demesne as of fee; which words (that they were seised) imply an entry, for without entry they could not be seised, and it is not the practice in the common bench in like cases of possessions executory to allege an entry. For upon a fine sur grant et render the pleading is, by force whereof he (the party to whom the render was made) was scised, without saying that he entered and was seised. And in an ejectione firma the plaintiff usually shews the lease made, and says, by force whereof he was possessed, and does not shew any entry; and it is good, because a man cannot be seised or possessed of land unless he first enters; and therefore when he shews the seisin, it is as much as if he had said that he entered and was possessed or seised. And so it shall be in the principal case here.

Answer to the 4th exception.

As to the fourth exception, viz. that the defendants have said that they were seised in right of their cathedral church; to this the said counsel wrote in answer, that the plea is, that after the death of Haltman they were seised of the rectory and church of Dean, in their demesne as of fee, in right of their catheral church aforesaid, &c. which is true, and well pleaded. For there is a difference when the plea is of the whole, and when of parcel. For if they were disseised of an acre parcel of the parsonage, there, if they said that they entered and were thereof seised, they ought to say, in right of their church of Dean. And so in the Register in a juris utrum brought by L. bishop of Lincoln parson of the church

1576.

Grendon

V.

Lincoln.

of E. the words of the writ are, whether 20 acres of land with the appurtenances in E. are frank-almoin belonging to the church of the said L. or lay-fee, &c. So in 49 H. 6. 16. where the abbot of Colchester, parson of a church, claimed an annuity which was be- Bishop of longing to the said rectory, it was taken that he ought to prescribe in right of the rectory, and not that he and his predecessors abbots have had it from time immemorial; for of parcels and things belonging to the rectory, they ought to be claimed in right of the rectory. But here the parsonage and church of Dean is an entire thing, of which entirely the dean and chapter have alleged that they were seised in right of their cathedral church; and so in truth [155] they are, and it would be very absurd for them to say that they were seised of the church of Dean in right of the church of Dean, or of the rectory and church of Dean in right of the church of Dean. Wherefore there is an apparent diversity between the

cases.

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Besides, if the words in right of their cathedral church aforesaid, &c. had been totally omitted, the plea would not have been bad; and then the mis-recital of that which might have been wholly omitted cannot vitiate the plea.

And afterwards judgment was given for the defendants, and See N. against the plaintiff.

Bendl. 296.

S. C. says

that no judgment was here given, but that the parties compromised the matter upon the payment of a sum of money awarded to the plaintiff.

P. 23 Eliz.

A.D. 1581. In Cam. Scac.

Flemyng, and the Tenants of Dudley. [Sav. 13.]

not pre

scribe in mandi.

modo deci

It was holden between Flemyng and the tenants of Dudley, that .When you if the tenants, from time whereof memory does not run, &c. have may or may been used to pay a certain price for a tithe lamb, so that the custom is fully established, that although afterwards the parson encroaches upon more, or the tenant pays the lamb in kind, this does not destroy the custom. But, if one had paid a penny for a lamb for fifty years; and afterwards pays tithe in kind, before the custom is established; although he again pays his penny for twenty years, they cannot prescribe in modo decimandi.

T. 24 Eliz. A. D. 1582. In Cam. Scac.

Mayne against Becke. [Sav. 30.]

tion to set out tithes

ONE Mayne sued Becke in the spiritual court for tithes of the Sequestramanor of B. in the county of Bucks; and Becke exhibited an English bill, setting forth, that he was tenant for years on the demise never seen. of the queen, and alleged that the said manor was discharged from tithes, and prayed a prohibition, which was granted; and after

1582.

Mayne

V.

Becke.

wards the same Mayne came, and prayed sequestration of the tithes of the said manor.

Manwood. Had the contention been between the parties to whom the tithes of the manor, severed from the ninth part, belonged, [156] your request had been reasonable; but to grant a sequestration for the setting out of the tithes, was never hitherto seen; and if the defendant agrees to this, he admits that the lands are titheable. Shute agreed.

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Where the

certainly

known, and

payment,

the tithes shall be

THERE is a fen called Wildmore, in the county of Lincoln, which parish is not fen is not known to lie in any particular parish; whereupon it was ordered in this court, that the tithes in this case should be paid to where there the parson, vicar, pensionary, &c. where the owner of the cattle has been no lives. But, if the tithes have been paid to the parson of any parish, usage of beyond time of memory, although it be not known in which parish the moor or common is, they shall be continued to be paid in the said parish, where they have been used to be paid; but where no usage of payment hath been heretofore, nor the parish certainly known, they shall be paid to the parson or vicar where the owner resides, by virtue of a proviso in the statute passed in 2 & 3 Edw. 6. chap. 13.

paid to the parson, or

vicar, of the

parish where the owner resides.

Unity of possession by a reli

gious person of the manor and

parsonage,

is no dis

charge for

the copy.. holders.

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parson

A PROHIBITION was granted out of the common pleas against the ordinary of Gloucester and one Branche. The surmise was, that the land from which the tithes are demanded, is copyhold, parcel of a manor whereof a prior was seised in fee, and was also imparsonee, by which union the tithes are extinguished. And Snag serjeant moved, that the surmise was not good, for the union was no discharge of the tithes of the copyholders, and therefore he prayed a consultation, and had it. For the court said, that there is no prescription alleged in the surmise to be discharged of tithes : and in truth, if an abbot or prior be seised of land discharged of tithes, the new farmer of that land shall be admitted to prescribe in a non decimando, by the statute of 2 E. 6. which wills that no one shall pay tithes otherwise than they were paid forty years before: but in no other case shall a man prescribe in non decimando, but only in modo decimandi. (a)

(a) See Benton v. Trot. Moore, 528. post. 208.

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is

1588.

Savell

V.

Wood.

Payment of money to a parish clerk time out of minde, no discharge of

good plea in

tithes. Moore 908.

PROHIBITION against a parson who sued for tithes in the spiritual court: the defendant surmised that the clerk of the said parish, and all his predecessors assistants to the minister there divina celebranti, had used to have five shillings of him, &c. for the tithes of the place, where, &c. Coke said this prescription is void; for it in one person onely that hath no perpetuity, but is dative and removable, 32 H. 6. 5. And if it be a good surmise, yet there is no cause but a consultation shall be awarded, for it is to come in 1 Leon. 94. question in the spiritual court, whether the parson or the clerk S. C. hath right to the tithe. And he said it was lately adjudged in Bush and Hunt's case, where the vicar sued for tithes, and a prohibition was prayed upon surmise that he had used time out of mind to pay the tithes to the parson, that it was not a sufficient surmise for a prohibition to entitle another to the tithes, for that shall come in question in the court christian. Note, Afterwards Hill. 30 Eliz. it was moved again by Gawdy and Fleetwood serjeants for the plaintiff, that it was a good prescription, because the parsonage was a parsonage impropriate, and by intendment it commenced by the act of the parson, viz. that he made a composition that the tithe of that land should be paid to the clerk in discharge of himself, and that he had used time out of mind, &c. to pay to the clerk five shillings in discharge of all tithes, &c. And the court said, if this special matter be shewn in the surmise, perhaps it might be good by reason of the continuance, and that by this the parson is discharged from finding the clerk, with which peradventure he shall be charged, and so is as a payment of tithes to the parson himself; but such matter is not shewn, and by common intendment tithes are not to be paid to the parish clerk, and he is no party in whom a prescription can be alleged. And thereupon they awarded a consultation. (a)

P. 30 Eliz. A. D. 1588. B. R.

Stebs v. Goodlock. [Moore 913.]

[158]

Fraud upon payment is

a customary

In the queen's bench, between Stebs and Goodlock parson of Letcombe, in the county of Berks, a custom was alleged, that the parson was to have every tenth land for the tithe of corn, beginning from remediable such land as is next the church: whereupon the occupiers of the law, and is land knowing beforehand what land would be the parson's, by no ground

at common

(a) See Scory v. Baber, post. p. 163. 1 Roll. Portinger v. Johnson, post. 286. Abr. €49. pl. 50. V. Barnes, post. p. 285.

1588.

Stebs

V.

Goodlock.

for a demand of tithes in

kind in the spiritual

court.

Endow

ment is to be presumed when a vicarage hath long

covin and in order to defraud him, did not till, nor sow, nor manure his land, as they did their own; by reason of which covin the parson sued in the spiritual court for tithes in kind, that is, the tenth cock of all the corn. And a prohibition was awarded notwithstanding the covin, because the fraud is remediable in an action upon the case at common law.

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Grymes and others, v. Smith. [12 Co. 4.]

THE case was as follows: The abbot of Sulby held the parsonage of Lubbenham, in the county of Leicester, appropriate, which, as a parsonage impropriate, came to king H. 8. by the dissolution of monasteries, anno 31 H. 8. who, in the 37th year of his reign, continued. granted it in fee farm, under which grant the plaintiff claims: the defendant had obtained a presentation of the queen, and, to destroy the said impropriation, shewed the original instrument of it, anno 22 Ed. 4. with condition that a vicarage should be competently endowed, and alleged, that such vicarage was never endowed, and that, for that very cause, the impropriation was void. In truth, there was no instrument, nor direct proof of any endowment of the vicarage. But as the said rectory was, during all the time of the impropriation, supposed, reputed, and taken to be appropriate; and by all that time a vicar had been presented, admitted, instituted, and inducted, as a vicar rightfully endowed, and had paid his first fruits and tenths; it was resolved, that it shall be presumed in respect of continuance, that the vicarage was lawfully endowed, for that omnia præsumuntur solenniter esse acta. And it would be a dangerous precedent to examine the originals of impropriations of [159] any parsonages, and the endowments of vicarages, for that the originals of them in time will perish. And so it was decreed for the plaintiff.

[As this is a leading case upon this point, I have subjoined the original decree from the record in the exchequer.]

20 June, 30 Eliz. Upon hearing the matter between Thomas Grymes and Jane Grymes, widow, plaintiffs, and Henry Smith, defendant, being for and concerning the right and possession of the parsonage of Lubbenham, in the county of Leicester, it was affirmed by the plaintiffs, that the said rectory and parsonage was lawfully appropriated to the abbot of Sulbey, in the county of Northampton, of which the said abbot, long time before the dissolution thereof, was seised in his demesne as of fee in the right of his monastery, and had the same in proper use till the dissolution of the monastery; by force whereof, and the statute for dissolution of monaste

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