Benton V. Trot. Vide supra 106-7. money, 1598. detains tithes from the parson of the church. But from this it manifestly appears, that tithes were from the beginning merely spiritual, and that no layman was capable of them. And to this purpose is 13 H. 3. Fitzh. Prohibition, pl. 20. If a parson sell his tithes for he shall sue for the money in court christian. And 3 E. 3. Fitzh. Grants, pl. 70. an appropriation of a parsonage to the templars was not grantable over to the hospitallers, as Herle says there, because the privilege of retaining tithes to their own use was annexed in confidence to their persons by the ordinary who made the appropriation, and is not transferable by grant from the one to the other, as temporal things are; for which reason an act of parliament was made to transfer these things to the hospitallers in the 17 of E. 2. as it appears. And in 44 E. 3. 5. it is ruled, that an assise does not lie for tithes, but that if the lord has reserved the tenth part of the corn or such thing, he shall have an assise of that, as of a profit apprendre. So in 7 E. 6. it appears from Dyer 83. [supra, 119.] that no temporal action lay for tithes, until the statute of 31 H. 8. gave them after the dissolution, and that the appropriated rectories and portions of tithes were given to the crown. Whereby it is proved, that though the abbots had temporal capacities to take land, and also spiritual capacities to take tithes, and though they had sometimes the inheritance in the land, and also the inheritance in the tithes which proceeded from that same land, yet those two inheritances were divided in them in respect of their several capacities ac si essent in diversis personis. As to the discharge of tithes, there were three manners of discharge at common law. The first was prescription: the second, privilege the third, unity. The discharge by prescription was in non decimando, and in modo decimandi. Spiritual persons only could prescribe in non decimando, and not temporal persons, unless for lands which they held as farmers to spiritual persons. And for this is the case of Wright v. Wright, in prohibition, Hil. 38 Eliz. Rot. 628. in the king's bench, [supra 167.] where the suggestion was, that the land was of the possessions of the bishop of Win[212] chester, and the plaintiff prescribed that neither the bishop, his te nants, nor farmers, had ever paid any tithes for it from time immemorial; and adjudged a good prescription. So, the parson of a church may prescribe for his glebe in another parish. And so of all abbies and religious houses; for because they were capable of tithes, they were capable of being discharged of tithes in their own land, and the commencement of the discharge is not examinable when there hath been a continual discharge from time immemorial, but it shall be intended to begin upon a reasonable cause. But this kind of prescription is not alleged in the prescription in the principal case; for it is alleged that the abbot was parson and proprie 1598. Benton V. Trot. tor of the land from time whereof the memory, &c. and that by reason of the premises he held the land discharged of the payment of tithes, &c. by which conclusion it appears that the reason and commencement of the discharge is unity; and against the plea of the party no other discharge can be intended or presumed, as it might be if it had alleged the prescription in non decimando without such conclusion. The prescription in modo decimandi is common to spiritual and temporal persons; and if land discharged per modum decimandi fall into the inheritance of a rector in jure ecclesiæ, this does not interrupt the prescription, but the retainer of what is due for the tithes shall be said to be a payment to the rector himself in order to continue the prescription in whose hands soever the land shall afterwards come upon its disjunction from the rectory, as was resolved upon evidence at bar in a prohibition in the case of Chambers v. Hanbury, [supra, 208.] The discharge by privilege is, where the pope, who formerly usurped the privilege of supreme ordinary, by bull granted the privilege of being discharged from the payment of tithes; but this was always to be made to a spiritual person who could take the cure of souls: as in 10 Eliz. Dyer, 277 b. [supra, 132.] the bull to the religious of the order of Cistertians privileged them that they should not pay tithes of the lands quas propriis manibus excoluerunt: and yet their lessees and farmers paid them. And many discharges were under such privileges in conditions and provisions contained in the bulls. The discharge by unity is more properly a suspension than a discharge; for the unity is of the land in a temporal capacity, and of the tithes in a spiritual capacity, both of equal estate of inheritance in one person, so that it is a discharge for the time of the payment of tithes from the necessity of reason, because he cannot pay tithes to himself; but, when the land is come into the hands of one, and the right to the tithes into the hands of another, in that case the necessity is [213] removed, and the tithes are payable for the land. And the conjunction of both the inheritances in one person was not any perpetual discharge, because the capacities in which he took them were several, so that the spiritual thing could not extinguish in the temporal, as it would be of things temporal, such as rents, commons, profits apprendre, and the like. And this is proved by 30 H. 8. Dy. 43. where it is resolved by the justices and all the serjeants, that if a parson purchase land within the parish, and demise it for years, or make a feoffment of it, he shall have the tithes from his own lessee or feoffee. So, he shall for such land pay tithes to his farmer of the rectory, if he demises the rectory, and retains the land in his own hands. And according to this is 7 E. 6. Bro. Dismes 17.- We are now to consider the statute of 31 H. 8. the intent of which was founded upon this providence, viz. that as the 1598. Benton V. Trot. [214] legislature had now given to the king the lands of the religious persons, and the king could dispose of them to his temporal subjects, who were not capable of tithes, nor of such discharges of the tithes of lands, as the abbots had enjoyed; in order to avoid contention, and to encourage the purchasers of abbey lands, they were desirous of providing that the king, and all other persons who should have any abbey land, should hold it discharged from the payment of tithes in like manner as the abbots held it at the day of the dissolution; and according to this intent they inserted the said branch of discharge of tithes in the said statute of 31 H. 8. of the dissolution of monasteries: by which it is clear both in the letter and the intent that all lands which the abbots held discharged by the privilege of any bull, or by any manner of prescription, the king and every other person should hold for ever discharged according to the privilege and prescription: and also that where the abbots held at the time of the dissolution any land in their hands discharged of tithes by reason that they themselves were the persons to whom the tithes were payable, there the king and every other person should hold those lands discharged for ever, if the abbot had an equal estate in the land and tithes; and this by the words of the statute, that they should retain and keep the land discharged as freely as the abbot, &c. But, if the abbot were out of possession of the rectory or of the land at the time of the dissolution, so that tithes were then paid; then the land was not discharged at the dissolution, and therefore shall pay tithes perpetually. For where there is no discharge but unity, there the unity must be of the occupation of both together, and no other unity of estate was any discharge at common law, neither at the time nor before the dissolution, as is proved by the cases before cited, and is also expounded by the whole usage and experience since the statute, as appears from the case of copyholders of abbey lands where the abbots were also parsons; there, there was unity in the estate of freehold of the rectory and also of the copyholds, and yet the copyholders have always paid tithes since the statute: whence it should seem that unity of the freehold and inheritance without unity of the occupation of the land and rectory in the abbot in the principal case, is not such a discharge of tithes as is within the intent or letter of the statute. And if he who was lessee for years of both under the abbot, that is, of the land and rectory, had not leased out the land, it would be a great question if that land by such unity in the hands of the lessee for years should pay tithes. For the words of the statute are, that the king and his patentees shall hold them discharged as freely as the abbot held them the day of the dissolution; and if the abbot did not hold the land and rectory together in his occupation, he did not hold the land discharged of tithes at all: and whether the holding of his farmer shall be said to be within the statute as if he had held them himself is doubtful. But here the case is stronger, because the farmer had leased out the land and retained the rectory, and he took the tithes of the land at the time of the dissolution from the lessee of the land in right of the rectory, so that the land was neither then discharged, nor did the abbot then hold it; wherefore, &c. As to the matter of form, the traverse seemed to them to be good: 1st. because in the whole suggestion there is but one thing material and traversable, and that is the discharge at the time of the dissolution; and upon that the prohibition is founded, and therefore the defendant has traversed it. For if he were to traverse the discharge before the dissolution by unity time immemorial, that is not material, because admitting the unity time immemorial, it is not material if there was no unity at the dissolution: and if he were to traverse the unity in seisin at the time of the dissolution, that is, that the abbot was not seised of the land and rectory at the time of the dissolution, this would pass against him, because he was seised of an estate of freehold and inheritance in both. And therefore the defendant hath done well to confess such seisin, and to shew a severance in occupation, and that the land was out of the hands of the abbot by lease for years at the time of the dissolution. 1598. Benton V. Trot. Fenner, puisne justice, was with the defendant in both points, [215] viz. the matter in law and the traverse. Gawdy was with the plaintiff in both points. Clench and Popham were with the defendant as to the matter in law, and with the plaintiff for the insufficiency of the traverse. And Popham said, that unity of estate, and not of occupation at the day of the dissolution by the abbot, is no discharge of tithes within the statute. But, if the abbot at the time of the dissolution held the land in fee, and the rectory likewise, this land is always discharged; and this construction has been always made in this court upon the words of the statute, that the king shall retain and keep the land as freely discharged, as the abbot held it the day of the dissolution. And so it was ruled in the case of Knightly v. Spencer, [supra 192.] and in another case between Green and Bosekin, [supra 197.] and so also it was taken by the justices of the common bench. But as to the case of copyholders, he took it to be clear that they shall not be discharged; and if the abbey land were in lease for a year, or otherwise, at the time of the dissolution, and not in the proper manurance of the abbot, that land is not discharged by the unity of the freehold in him. And as to the traverse, he said that it is the matter in law which is traversed, whereas nothing is traversable but matter in fact: for the matter in fact is the unity, and the conclusion upon that is by reason whereof the abbot held discharged. And the traverse of the discharge is the traverse of the conclusion, 1598. Benton V. Trot. Prescrip tion to pay the 10th Modus to pay tithe wool at Lammasday, good. whereas it should be of the unity, which is the matter in fact; and he confessed that unity from time immemorial, before the dissolution, is not material, but unity at the time: and if an abbot had purchased land and a rectory the very instant before the dissolution, and was seised of both in demesne and occupation at the time of the dissolution, he said that that land will always be discharged of tithes. And in the principal case it seems that the special matter would well enough have maintained the issue for the defendant against unity of seisin. (a) M. 41 Eliz. A. D. 1598. B. R. Green v. Hun. [Cro. Eliz. 702.] IN prohibition for suing for tithes of the rakings of barley, the plaintiff alleged a prescription to make the barley into cocks, and cock of the to pay the tenth cock in satisfaction of the tithes of the barley, and barley in discharge of of the rakings minus voluntariè dispersed. And it was thereupon the tithes of* demurred; because he did not aver, that those rakings were not the rakings involunta- minus voluntariè dispersed. For Bacon, who moved it, said, that rily dispers- in 31 Eliz. it was ruled in the common bench in one Adams' case, ed, good. [216] that a prescription to pay the tenth cock generally, in satisfaction of all rakings, was not good. For he might leave the greater part of the corn in rakings. But all the court held, that the prescription was good, and there needed not any averment; but that ought to come on the other part, if he would. Secondly, he sued for tithe of wool, and alleged a custom to pay it every year at Lammas-day; and that he set it out, &c. And it was thereupon moved, that it was not good; for this is not a modus decimandi: but for the time only, which is to be tried in the spiritual court. But the court held it to be good for it is due de jure, when it is clipped; but by prescription it may be set out altogether at another day, and that is good. And if the spiritual court will not allow thereof, as it is Custom to here alleged that they will not, it is fit to prohibit them. Thirdly, he prescribed that for young cattle reared for the pail to be milch kine, or for the plough, no tithes have been accustomed to be paid: and it was thereupon demurred, and adjudged a good prescription; for they be for the public weal. And the parson is to have benefit of them in another kind. And it was held, that for pastures of such cattle no tithes are due for the reason aforesaid. Fourthly, he prescribed, that for all wood combustible he used hearth- to pay a penny, called a hearth-penny, in satisfaction for all tithes thereof: and it was thereupon demurred. And it was adjudged to render no tithe for young cat tle reared for plough or pail, good. Custom to pay a penny for (a) Green v. Balser, 2 Co. Rep. 42. ante. 189. Hankey v. Gay, Bun. 37. post. 619. Dobitoft v. Curleene, post. 287. Dickinson v. Reade, post. 358. Lord v. Turk, post. Bun. 122. post. 1312. Lambert v. Cummins, post. 1016. |