1614. Urrey V. Bowyer. It now remains to examine whether the statute of 31 H. 8. c. 13. can in any way extend to this case. As to that when a thing is out of the body or purview of an act, it shall never come within the branch of it. For how is it possible that there can be in sap the trunk, when there is none in the root? How can it be that this dissolved hospital should be within the branch of the 31 H. 8. which gives immunity from tithes, when it is not within the body of the act? And this dissolved priory of St. John of Jerusalem is not within the body of the act, because it was given to the king by an act of parliament passed in 32 H.8. c. 24. and not by this act. Besides, this statute of 31 H. 8. is very precise in its penning; for it says, that all houses of religion, &c. which have been dis- [255] solved since the 4th of February, &c. so that the house or priory that would have the privilege of being discharged of tithes within this act, must have come to the king since the 4th of February. And it is for this reason, that this statute does not extend to those priories and religious houses which were dissolved by the statutes of 2 H.5. c.9. (a) and 27 H. 8. c. 28. The statute too says, that the said possessions shall be discharged of the payment of tithes; so that the lands, which are to be discharged of tithes within the statute, must be those possessions which came to the king by the statute; for the word "said" runs from the branch to the body of the act, so that nothing shall be within the branch which is not contained within the body, and therefore because these lands do not come to the king by the 31 H. 8. they shall not have the immunity of being discharged of tithes. And it is for this reason that neither the lands that come to the king by the statute of 32 H. 8. c. 13. nor those which come to him by the statute of 1 E. 6. c. 14. of chantries, are discharged of tithes by the branch of the statute of 31 H. 8. c. 13. For how can it be intended that the statute should provide for the lands of those houses that might be dissolved thereafter, unless you will say that the makers of the act of 31 H. 8. had the spirit of prophecy? And so it was resolved in the archbishop of Canterbury's Supra 189. case, 38 Eliz. 2 Rep. 46. And in the case of one Greene and Buffkin, Supra 197. 2 Rep. 49. b. and Hil. 44 Eliz. Rot. 994. in an action on the statute of 2 E. 6. it was the opinion of all the judges except Gawdy, that the branch in the statute of 31 H. 8. which gives immunity from tithes, does not extend to possessions given by the statute of 32 H. 8. And so it was ruled in the case of Quarles v. Spurling, who were Supra 224. the same parties between whom the action on the statute of 2 E. 6. was depending. As to the case in the 10th of Eliz. Dy. 277. which had been so strongly urged, he said, first, that it was a (a) Not printed in the statute-books; but may be found in Rymer's Fœdera, 283, 4. Parliament Rolls, 22, by the name of Cornwal lis v. Spurling. Supra 132. 1614. Urrey V. Bowyer. case ruled upon sudden opinions given before the lord chancellour, and not upon solemn argument. 2dly. He said, that the case was in truth upon the order of Cistertians, as he had seen by the papers in chancery, though lord Dyer states it to be of the order of Templars; and by the recital of the act of 2 H. 4. c. 4. it appears, that lord Dyer understands it so, because the statute of 2 H. 4. intends only that the farmers of the Cistertian order pay tithes, and does not speak of the order of Templars; and the Cistertian order are clearly discharged of tithes, because their lands came to the king by [256] the 31 H. 8. But admitting the case to be as it is stated in the book, yet inasmuch as there have been four judgements adjudged differently upon the point against the book, it is good to abide by the latter judgements, as Plowden saith. And here Coke said, that such possessions as are discharged of tithes by the branch of the statute of 31 H. 8. must have been in the hands of religious and ecclesiastical persons at the time of the dissolution. For if they were in the hands of religious persons only, and not of ecclesiastical likewise, then such possessions will not be discharged of tithes by that act, because the act always speaks in the copulative, religious and ecclesiastical, and not otherwise. But here he said, that the Templars were holy persons, who were capable of being discharged of tithes, if there were no impediment in the case. They were both religious and ecclesiastical, for an order cannot be religious without being ecclesiastical; though an order may be ecclesiastical, and yet not religious, as a bishop, dean and chapter, archdeacon; they are ecclesiastical, but not religious, because they are not regular, and have not professed themselves, nor vowed three things, viz. obedience, voluntary poverty, and perpetual chastity, which things are requisite to such orders as Supra 189. are said to be religious, as may be seen in 2 Rep. 48. But the Templars are religious, because they are professed persons, as may be seen 35 E. 1. Tryall 99. 2 R. 3. 4. and also 9 E. 3. 25. and 26. 12 R. 2. Nonability 4. 8 E. 3. 53. where it is admitted that the prior of the hospital alone shall sue and be sued without naming the brothers, they being dead persons in law. They were also ecclesiastical persons, for they might sing mass, as may be seen in the statute of Templars, 17 E. 2. which no one could do who was not an ecclesiastical person. So that it appears that they were both religious and ecclesiastical, and of course entitled to the aid of the statute of 31 H. 8. if there were no other impediment in the case. And here Coke said, that the prohibition is insufficient of itself, inasmuch as the suggestion is, that the prior of the hospital of St. John's of Jerusalem and his brethren were seised; whereas it ought to be that the prior of the hospital of St. John's of Jerusalem was seised, for the brothers are persons dead in law, who cannot be said to be seised. And therefore we see in 1 E. 3. 7. that the prior of St. John's of Jerusalem in England avowed without making any mention of his brethren. So in 1 E. 3. 9. it is said that the Templars and Hospitallers are professed persons, and their profession shall be tried by the common law and not by the ordinary, because they are out of his jurisdiction. And in 7 E. 3. 25. 1 R. 2. Nonability 4. 8 E. 3. 53. the brothers are never mentioned in any suit by or against the prior of the hospital. And here Coke took occasion to speak of the first institution of the Templars and of their dissolution. The first institution of the Templars, he said, was to conduct Christians to the Holy Land safe from robbers and pagans, as may be seen in Matthew Paris, fo. 67. and as Pole says in 9 E. 3. 25. the lands upon their foundation were given to the Templars in defence of the Christians against the Saracens; and as says, 1614. Urrey V. Bowyer. [ 257 ] Britannia, 358. their institution was ad defensionem Christianorum terræ sanctæ adversus Paganos et Saracenos. So that they were a kind of soldiers and militiæ dediti, and did not fight with their pen, as other orders did, but with their swords; and they were gladio cincti, and always upon the mention of the gospel drew their swords in sign that they were ready to maintain the gospel with their swords; et fuerunt induti vestimento nigro modo Laicano gerenti signum crucis ante et post; and as the learned Camden tells us, fo. 340., they had in all christendom Camden's 9000 manors for their maintenance, as the Hospitallers had 19,000; Middlesex, and they were always entombed together in their complete armour, as the monks were always interred in their clothes. But the Templars, though a religious order, were persons of great impiety; for the emperor Frederick having an intention of going on a pilgrimage M. Paris to the place where John the Baptist preached, they treacherously wrote to the sultan, and gave him notice of it, in order that he might surprize the emperor, and by that means obtain a great ransom. But the sultan, as soon as it was disclosed to him, informed the emperor of it. And the French king, in requital, as some say, prevailed with the Pope to dissolve the order; for in a council holden in 1912 at Vienne, the pope said, Quanquam de jure non possumus, tamen plenitudine potestatis nostræ ordinem illum Templariorum reprobramus. And in consequence of this decree made by the Pope at that council, the whole order was dissolved in England by the statute of 17 E. 2. But the true cause of their dissolution is to be traced to other motives of the French king. All the Templars were gentlemen of the best quality; and the order of Hospitallers was erected a long time before the dissolution of the Templars, contrary to the opinion of Rastall in his title of Templars in his statutes, where he says that they commenced at the time when the Templars were dissolved. And Coke farther said, that long before the dissolution of The principal cause of Philip the Fair's hatred against the Templars was, that, in his quarrel with Boniface VIII. the knights espoused the [258] cause of the pope, and furnished him with money to carry on the war, an offence this which Philip could never pardon. 1614. Urrey V. the Templars, there were inns in which the apprentices of the law resided; for it may be seen in an old record among the communia placita in the hustings of London, that John Tracy bene nummatus Bowyer. homo devised totum illud hospitium in Holborn in quo apprentitii ad legem habitare solebant, whence it is manifest that they were resident in Holborn before the dissolution of the Templars. (a.) Tenant cuts corn, and before carriage his term is expired, yet must he set out his tithes. 1 Brownl. 123. S. C. 2 Bulstr. T. 11 Ja. A. D. 1613. B. R. Kipping v. Swayn. [Cro. Ja. 324.] IN debt upon the statute of 2 Ed. 6. for not setting forth tithes, the plaintiff declares, that he was proprietor of the rectory of B. in the county of S. for the term of seven years; and that the defendant was occupier of lands within the same parish for six months, by a demise made 10 Martii, 10 Jacobi: and that the defendant, 27 Augusti anno prædicto, cut his corn there growing; and upon the 10th of September next following, the defendant, being subditus dicti domini regis, carried away the said corn, not setting out the tenth, 119. S. C. according to the statute. The defendant pleaded nil debet, and it was found for the plaintiff; and now moved in arrest of judgement; 1st. That the plaintiff by his own shewing had no cause of action against the defendant, for the defendant's interest in the land was determined before the tithes were carried away: but the court held it to be no exception; for, although his interest in the lands was determined, yet he remained owner of the corn; for if corn be cut down, although a stranger take it away before severance, yet an action on this statute will lie against him. (b) Declaration upon a lease of tithes for 6 years, if M. 11 Ja. A. D. 1613. B. R. Wheeler v. Heydon. [Cro. Ja. 328.] In debt upon the statute of 2 Ed. 6. for not setting out tithes, but carrying away the corn, the tithes not being set forth; the plaintiff declares, that one Thomas Rock, parson of the rectory of Scripton, lives so long let unto him the rectory for six years, if he lived so long and conand conti- tinued parson there; and that the defendant, being an occupier of nue parson, such lands sown with wheat, within the said parish, reaped and car the lessor and these last words not in the lease itself, V. ried it ried it * away, the tithes not being set forth, &c. and avers the life of the said Thomas Rock, and that he continues parson, &c. The de[ 259] fendant pleaded non debet; and a special verdict was given, that the (a) The Serjeant's Case, infra, 281. and Hanson Fielding, Gilb. Equ. Rep. 225. infra, 663. leave this point undecided; but in Whitton v. Weston, infra, 410. and Fosset v. Franklin, Sir Tho. Raym. 225. infra, 1579. such lands are held to be discharged. See also Starhome's Case, Dy. 277. b.pl. 60. supra, 132. and Quarles v. Spurling, Mo. 913. supra, 132. and Cro, Jac. 57. supra, 224. by the name of Cornwallis v. Spurling. (b) See Gwyn v. Meryweather, 2 Rol. Rep. 440. infra, 401. parson made the lease for six years, if he lived so long; and the words, if he continued parson, were not within the lease; and they found all other points according to the declaration; and if, &c. And hereupon it being moved and argued at the bar, all the justices (besides Houghton, who doubted thereof) held that the variance betwixt the lease in the declaration and the lease found, shall not prejudice; for it is all one in substance, although it varies in words: and the addition in the declaration, if he so long continue parson, is no more than what the law speaks, for so the law tacitly implies, and therefore the addition thereof is no variance in substance. It is also good enough for a second reason; for the lease is not the ground of the action, nor is the declaration founded upon the lease, but upon the carrying away of the tithes, and for remedy of his wrong was the action brought; and the allegation of the lease is but an inducement to the action: and the jury finding that he hath a good lease and a good title to ground his action, although it be not in the same manner precisely as he declares, it being found for the plaintiff, he shall have judgement. But, if debt had been brought upon this lease for years, such variance peradventure would have been material, because the lease is the ground of the action: wherefore it was adjudged for the plaintiff. See for the first point 40 Ed. 3. 3. 12 Ed. 3. Variance 77. and for the second point, Plowd. 32. & 191. H. 6. 29. 3 H. 6. 25. THE case was, that Gabriel Grant, doctor in divinity, parson of the parish of St. Leonard in Foster-lane, infra præcinctum Sancti Martini le Grand, libelled in the spiritual court before Dr. Master, official of the dean and chapter of Westminster, against Edward Taylor, farmer of a great and ancient house, called the Dean's House, within the precinct of St. Martin le Grand, late parcel of the possessions of the abbot of Westminster; and alleged, that every parishioner or inhabitant having or occupying a mansion-house, shops, warehouses, cellars, or stables, within the said parish of St. Leonard, within St. Martin's le Grand, yearly every quarter of the year, at *the feasts of Easter, the nativity of St.John the Baptist, St. Michael the Archangel, and the birth of Christ, a tempore cujus, &c. or at least from the foundation, donation, and erection, of the said rectory of St. Leonard, by equal portions to the parsons of the said rectory for the time being, nomine et loco decimar' suar', juxta ratam cujuslibet viginti solidať redditus per an. ex qualibet hajusmodi domo, shopa, sollar', cellar', sive stabulo sic tent' sive occupat in prædicta parochia, duos solidos legalis monete Anglia, &c. and that the said Edward |