1603. Gibson V. Holcraft. What cus tom for non-payment c tithes of later mowth the unity of possession in discharge of the tithes upon the statute of 31 H. 8. To which the defendant pleaded, that the abbey was founded 5 E. 1. (which is within time of memory), and shewed and confessed the unity of the parsonage and grange after the time of the foundation. And upon the motion of Coke, the attorney general (per totam curiam), the plea in bar is good; and it is not necessary to traverse the prescription, for the shewing of the foundation of the abbey to be after the time of memory is a sufficient confessing and avoiding. But, if the defendant against the suggestion of the perpetual unity would shew, that the demesnes before the statute, and in the time of the abbot, were in the hands of the farmers, &c. there, he ought to traverse the prescription; for although the possession was chargeable in other hands, yet as to the fee-simple which remained in the abbot, it is a discharge in right. M. 2 Ja. A.D. 1604. B. R. Hall v. Fettyplace.* [Cro. Ja. 42.] PROHIBITION for tithes; whereas he was seised in fee of three acres of meadow infra parochiam de Sunning; and that within the said parish there is such a custom, that every one seised of any meadow within the same parish have used time whereof, &c. to cut down the grass upon such meadow growing at their proper costs, and the said grass to ted and shake abroad, and the said grass, so dispersed and cast abroad, to gather into weoks and windrows, and to put into small cocks; et post primam circumlationem inde the tenth cock inde to set forth for the parson, or his farmer, in satisfaction of all tithes, as well of the first mowth as of the latter mowth of that meadow for the same year, which the parson, &c. had used to accept, &c.; and allegeth, in facto, that he did so in such a year; and that the defendant sued him for tithes of the latter mowth, &c. And hereupon the defendant demurred: and it was moved for the defendant, that this prescription was not good; because there is no more given to the parson than he ought to have; for, by giving unto him the tenth cock, it is that which the law appoints, and therefore cannot be a recompence for another thing; for the tenth of the hay of the first mowth cannot be satisfaction for the tenth of the after mowth. But because it was alleged, that he at his own costs had tedded and shaken it abroad, and gathered it into weeks and windrows, and made it into little *This case is differently reported by Moore, 758; for he says, that this prescription to make the first crop into small cocks in lieu of all the tithes of the first and second crop was not allowed: but, if he had prescribed to make it into great cocks, or to carry it to the parson's barn, that would have been a good prescription. But Qu. whether this statement be not correct, and whether any tithes be due of the after mowth. Vide infra. Cro. Eliz. 660. 1604. Hall V. Infra 478. cocks, and so was at a greater labour and charge than the law appoints, and the parson hath benefit by the said labour, it is a good cause of discharge; and a precedent was shown, Pasch. 37. Eliz. Rot. 284. in this court, betwixt Awbrey and Johnson, parson Fettyplace. of Burghfield in comit. Berkshire, where it was surmised, that every inhabitant there had used to cut down the grass in the meadows at the first mowth, and at his costs to make it into hay, and to set forth the tenth cock of hay in satisfaction of the hay coming as well as of the first mowth as of the latter. And it was adjudged to be a good bar for the tithes of the latter mowth: which was held to be all one with this case in question. And Popham said, he had known it to be resolved, that of right, without any special custom alleged, no tithes shall be paid for hay of the latter mowth; for the rule in our law is, that tithes shall be payed ex annuatis renovantibus simul et semel. (a) Wherefore, without view of any precedents, or hearing argument therein, they agreed, that the prohibition should stand. H. 2 Ja. A.D. 1605. B. R. [224] IN debt by the parson of Grovel the statute of 2 Ed. 6. for Land of the upon Templars order of St. given to the John of Jerusalem by 17 E. 2. and to the king by 32 H. 8. is not re 919. tithe-free. not setting out tithes, a special verdict was found, that the lands whereof the tithes are demanded were parcel of the possession of the Templars, who were dissolved in the time of Ed. 2. and those possessions by act of parliament 17 Ed. 2. were given and annexed to the priory of St. John of Jerusalem, with all privileges, &c. And it was found that the Templars had a special privilege time whereof, &c. to be discharged of tithes of those lands which propriis manibus excolunt: and it was found that, by special act of par- s c. liament anno 32 H. 8. the possessions of the priory of Saint John Vide Infra. were given to the king by general words, of all lands, tenements, &c. in tam amplis modo et formá, as the abbot had them; and from the king those lands came to the defendant: and whether he should hold them discharged from the payment of tithes as the abbot had them was the question. And it was argued by Tanfield and others for the defendant, and by Paget and others for the plaintiff: and after argument all the court resolved, that he should not have the privilege to be discharged; for, by the common law, a lay person was not capable of such a privilege: and if such lands had come to the king by the relinquishment or dissolution of any monastery, the king should not have had the benefit of that privilege until the statute of 31 H. 8. And by that statute it is appointed, that all monasteries, abbeys, &c. which before had come, or afterwards should come to the king, by suppression, surrender, (a) See For v. Ayde, 2 P. Wms. 520. post. 697. Andrews v. Lane, post. 473. 1605. Cornwallis V. &c. the king should have in such manner and form, &c. and that he should have them discharged from the payment of tithes as the abbots, &c.; so as the makers of that law intended, that by the Spurling first clause, without the last, they should not hold them discharged, and therefore they added that clause. But this statute extends only to such possessions as came to the king by surrender, &c. and should be vested in him by force of the said act; and doth not extend to possessions which vested in him by another act of parliament, so not by the first; according to the rule which is taken in Supra 190. 2 Co. 46. in the archbishop of Canterbury's case. And these lands were here given to the king by a special act of parliament, 32 H. S. which hath the same words in the first clause as the act of 31 H. 8. hath, but hath not the second; and therefore there is no cause of [225] holding them discharged from tithes. And so it was adjudged accordingly for the plaintiff. And in this same term a like judgement was between the same parties in a prohibition upon a demurrer. (a) One action may be brought upon the statute of 2 & 3 E. 6. upon several titles, if those titles be conjoin ed in the plaintiff. Yelv. 63. Moore 914. 1 Brownl. 86. Noy 3. S.C. P. 3 Ja. A. D. 1605. B. R. IN debt upon the statute of 2 Ed. 6. for not setting forth tithes, the plaintiff shewed that two parts of the tithes of the place, &c. appertained to the rectory, and the 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 the tithes he demanded according to the statute the treble value. The defendant pleaded non debet, and found against him: and it was now alleged in arrest of judgement, that inasmuch as the plaintiff's cause of action is grounded upon several leases, he ought to have brought several actions, his title being several: but the court held that the action was well brought, in regard he had both titles in him, and he is to have the entire tithes; and this action is brought upon the tort, because he did not set out the tithes : wherefore it was adjudged for the plaintiff. M. 2 Jac. A. D. 1605. [Cro. Jac. 100.] Boughs and decayed PROHIBITION. For that a person sued in the spiritual court for trees above tithes of boughs of trees above the age of 20 years; surmising in the age of his plea, that the trees were arida, cava, et in culminibus putridæ, and, therefore, prayed consultation; and, upon this plea, it was demurred. 20 years are not titheable. (a) In Urrey v. Bowyer, post. 250. In Hanson v. Fielding, post. 663.; and in the Serjeant's Case, post. 281. the point is left undecided; but in Whitton v. Weston, post. 410. and Fosset v. Franklin, post. 1579. such lands are held to be discharged. It was alleged for the plaintiff, that, in regard the trees were once discharged from the payment of tithes, the boughs nor the bodies of such trees shall never after be charged with the payment of tithes coming of them; and the statute 50 Edw. 3. c. 4. is but an affirmance of the common law. This was agreed to by the court. But they doubted of the principal case; for Gardy and Daniel conceived they were not now titheable, because once they were not; and the body being privileged, so shall the boughs. But Warburton and Walmsley doubted thereof, because the trees were not for other uses than for firing, and bare not any fruit and it was not waste to cut them down; therefore they were titheable. They all held that trees above twenty years' growth, which are timber, although the loppings are cut every ten or twelve years, yet they are not titheable; et adjournatur. (a) M. 3 Ja. A. D. 1605. B. R. Hutton v. Barnes. [Yelv. 79.] 1605. Brook V. Rogers suggestion in prohibi tion pre scribes in mando, is not mate where in modo deci- HUTTON being sued in the spiritual court at Durham for tithes, A variance brought a prohibition there, and suggested that the prior of Dur- between the ham was seised of the grange of Sesgersonwick in right of the and the church, viz. the priory; and prescribed in the prior and his prede- libel, where cessors to hold that grange without payment of any tithes; and shewed the dissolution of it, and how it came to H. 8. and the statute of 31 H. 8. to hold it as the house of religion held it before; non deciand derived to himself a lease of 50 years from queen Elizabeth; and after his prescription in non decimando, shewed how the de- rial: secùs, fendant sued him in the spiritual court for the tithes of forty fleeces of wool. To this the defendant pleaded, that he sued the plaintiff mandi. for the tithes of 400 fleeces of wool, and prayed a consultation; and for the variance between the libel and suggestion the justices of assize awarded a consultation, and adjudged double costs to the defendant. And Yelverton assigned both these matters for error. [226] And per curiam, they are error; for the variance is not material here, because the plaintiff prescribes in non decimando, and thereby ousts the spiritual court of all manner and power of jurisdiction for any tithes arising from this grange, because it is discharged in se ; but if the suggestion had been on a modus decimandi, then it would be otherwise; for there the suit for tithes belongs originally to the spiritual court, and therefore there the suggestion ought to agree with the libel; for if the parson libels for tithe of hay, and the other will suggest a custom for tithe of corn, that is not to the purpose; for it is not for the same thing. The same law where they vary (a) The consultation was refused, scc S. C. Moore 908. 1605. Hutton V. Barnes. in the quantities of the thing demanded, because the suggestion is founded upon the libel, and the plaintiff is to stay the proceedings there but for one cause certain. But in the case supra, the suggestion discharges the spiritual court from all manner of power for any tithes at all; and therefore the variance is not material. 2. The prohibition judgement for double costs was error on the express letter of the statute of 2 & 3 E. 6. which gives double costs only for want of proof of the suggestion, and for no other cause. Quod nota. The de fendant in entitled to double costs only for want of proof of the sugges tion. A lay person cannot prescribe in non deci mando, and tithes shall be paid for fenny fodder gathered in the marshes to with. By a grant of tithes in ac aliam B. R. M. 2 Jac. A.D. 1605. PROHIBITION. The case was, that Sir Henry Warner, libelled in the spiritual court for tithes of rough hay growing in the marshes and fenny lands of Milden-hall. The Plaintiff brought a prohibition, surmising that there were two thousand two hundred acres of fenny land within the parish, and six hundred acres of meadow; and that the parishioners paid tithe of hay and grain growing upon the meadow and arable land, and had paid two-pence halfpenny for every cow and one penny for every calf. And, because they had not sufficient grass within the parish to sustain their beasts in winter, they used to gather this hay, called fenny fodder, for the sustenance of their beasts, for the better increase of their husbandry, and for this cause had been always freed from the payment of tithes, &c. (a) It was hereupon demurred in law, and, after argument at the bar, adjudged for the defendant that the surmise was not sufficient ; for one may not prescribe in non decimando; and in that it is alleged they bestowed on their cattle there, &c. and for this cause did not pay tithes, that is not any cause of discharge, for so they may prescribe for corn spent in their family, or for corn given for provender to their cattle, whereby no tithes should be paid. (b) Wherefore it was adjudged an ill surmise, and consultation was awarded. Barker v. Sir Nicholas Bacon. [Cro. Jac. 48.] PROHIBITION to stay a suit for tithes. The case was upon fra domini demurrer, that queen Elizabeth, in the 37th year of her reign, cum de B. granted, &c. by her letters patent to Sir Nicholas Bacon, omnes et omnes alias omnimodas decimas granorum, herbagii, lactis, agnorum, vitulorum, decimas mo- &c. infra dominicum de Bury Sancti Edmundi, quandam spectant, et nasterio de B. spectant quæ collectæ fuerunt per eleemosynarium of the said abbey. (a) Hayes v. Dowse, Bun. 279. post. 679. Mantell v. Paine, post. 1504. Stevens v. Aldridge, 5 Pri. 334. post. vol. 2. Degge. P. C. p. 2. c. 3. (b) See Roll's Abridgement, 647. pl. 10. Underwood v. Gibbon, Bun. 3. post. 1582. Hale v. Bragg, post. 861. Robinson v. Tunstall, n. ibid. Williamson v. Lord Lonsdale, 5 Pri. 25. |