shewing how it is discharged, is sufficient, according to 2 Co. 47, 48. inasmuch as it may be discharged many ways, as by composition, by prescription, &c. and it would be hard to drive him to shew how it is discharged, when there are so many ways which cannot be well known; but, if he takes upon him to shew the special way how it is discharged, then it ought to be shewn exactly, otherwise the plea is insufficient, and a consultation shall be granted. And lands may be discharged from the payment of tithes without the aid of the branch of the statute of 31 H. 8. as where they are discharged by prescription under a spiritual person, as in the archbishop of Canterbury's case, or by composition, as, where there is a modus decimandi paid for the tithes in kind. Coke, chief justice, Croke, Dodderidge, and Houghton, justices, thought that the count was insufficient, because it did not shew the foundation to be time whereof, &c. and the unity which will discharge one from the payment of tithes ought to be a perpetual unity, and not a temporary union. 1614. Prowse V. Doctor Leyfield. [266] 2dly, Wincoll moved that the count was insufficient, because the plaintiff claimed to be discharged from the payment of tithes by the statute of 27 H. 8. c. 20. and the statute of 31 H. 8. c. 13. and neither of those statutes would discharge him. For the statute of 27 H. 8. will not discharge him, because it has not any words of discharge; for it only says, that the king's patentees shall have all such actions, suits, entries, and remedies, to all intents and purposes, as the abbots might or ought to have had, &c., which words will not make any discharge according to the resolution in Green v. Supra 189. Balser's case, where it was ruled that if the branch of the statute of 31 H. 8. had been only in general words, that the king and his assignees shall have the lands in as ample and large manner as the abbies had them, they would not operate any discharge, because such general words would never extend to a privilege of discharge. And the statute of 31 H. 8. c. 13. cannot discharge these lands, for that statute not being a statute by which monasteries were dissolved, but being only a statute by which monasteries dissolved by surrender, &c. since the 4th day of February in the 27th year of H. 8. were confirmed and settled in the king, his heirs and successors, it does not extend to discharge any lands from the payment of tithes, but those lands only which came to the king since the statute of 27 H. 8.; for, after reciting that the monasteries which have come to the king since the 4th day of February, it saith, that the said late monasteries and the lands appertaining to the said monasteries, &c. shall be retained and kept according to their estate and title discharged of the payment of tithes: wherefore as the abbey in the case at bar, and the lands appertaining to it, came to the king by the statute of 27 H. 8. they can 1614. Prowse * not be comprised within the statute of 31 H. 8. which extends only to lands which came to the king since the statute of 27 H. 8. So, for the like reason, lands which have come to the king since the statute of 31 H. 8. shall not be discharged from the payment of *[267] tithes, as we may see in 2 Co. 47. the archbishop of Canterbury's V. Doctor Leyfield. by the name of Cornwallis v. Spurling. case, where it is ruled, that lands which came to the king by 1 E. 6. c. 14. shall not be discharged of tithes within the 31 H. 8. And Supra 224. 1 Ja. Rot. 45. and Hill. 44. Eliz. Rot. 444. Quarles and Spurling's case, where it was ruled, that lands parcel of the priory of St. John of Jerusalem, which came to the king by the statute of 32 H. 8. c. 24. shall not be discharged from the payment of tithes within the 31 H. 8. which extends only to those monasteries which came by inferior means than an act of parliament subsequent to the statute of 31 H. 8. For the same reason those lands which came to the king before the statute of 31 H. 8. shall not be discharged; the statute of 27 H. 8. being as high means as the statute of 31 H. 8. and not inferior to it. Where waste be tween two vills, N.S. and S. S. 3dly, He argued that the conclusion of the count was insufficient, which saith, and so contra modum decimandi, &c. the plaintiff ought not to pay tithes; whereas a modus decimandi will not discharge one from the payment of tithes, unless it has been time whereof, &c. 4thly, It appearing to the judges, that the tithes were leased for a rent, they granted a consultation; for now it is manifest that tithes were paid at the time of the dissolution; and if tithes were paid by the farmers of the land, then is the land not discharged from the payment of tithes within the branch of the statute of 31 H. 8. c. 13. and this payment of rent for the tithes was a payment upon the matter of tithes, and a seisin of them. Note, It appears by the record that there was a demurrer upon the suggestion; but it does not appear that a consultation was granted. (a) M. 12Ja. A.D. 1614. B.R. Hickes v. Froud. [MSS. Calthorpe.] THE parson of North Somerset libelled against Hickes for the there was a tithes of the agistment of cattle. Hickes, upon a suggestion that there is a great waste between the vills of South Somerset and North Somerset, and that the resiants and occupants of each vill have had common by reason of vicinage, and that there is a custom that if any inhabitant of the vill of South Somerset have any pasture ground of those cattle which and the re siants and occupants of each vill in the vill of North Somerset, for the (a) Gibson v. Holcroft, Yelv. 31. supra, p. 222. v. Drake, Hob. 295, infra, p. 390. Clavill v. Oram, Priddle v. Napier, 11 Co. 8. 6. supra, 236. Slade infra, p. 1354, 1614. Hickes v. Froud. mon by reason of vi cinage, a custom that any inhabit. ant of S. S. having pas ture ground in N. S. for go on the waste, that then he shall pay tithes to the parson of South Somerset where he inhabits; and that in consideration thereof the parson of South Somerset shall pay to the parson of North Somerset 4s. and to the vicar 8s. and so the party who inhabits within his parish shall be discharged of tithes against the parson of North had comSomerset, had a prohibition granted to him, and issue being joined upon the custom, it was found for the plaintiff. It was moved in arrest of judgement by serjeant Bawtry of Lincoln's Inn, that the custom was not good, because it was not equal. For it is not reasonable that the parson of South Somerset should have all the tithes of the lands of North Somerset, paying to the parson 4s. per annum, and that the parson of North Somerset should not have the same privileges in the lands in South Somerset. And by law no parson is to have tithes but of lands in his own parish. Sed non allocatur, for though the custom is hard, yet it is found by the verdict, and therefore we cannot interfere; and here is a recompence, such as it is, given to the parson of North Somerset; and though it be not given by the parties themselves, yet it is given by the parson, which is all one, according to the case of Heron v. Pigot (a), in which it was adjudged, that a custom to pay the tithes to the lord of the manor, who used to pay an annual rent for the maintenance of the parson, was good. cattle, which go on the waste, shall pay tithes where he to the parson of S. S. inhabits, consideration thereof of S.S. shall and that in the parson pay to the parson of N. S. 4s. and to the vicar 8s. and that the party so inwithin his parish shall habiting be discharged of tithes, found to be a good cus The case was afterwards moved again by serjeant Bawtry, who said that a modus decimandi being the consideration in respect of which tithes due in kind are not to be paid as they ought of right to be, should be precisely alleged, so that it may appear to the court that the parson has a recompence in satisfaction of his tithes; that it is not so alleged in the present case; for the party who claims to be discharged of tithes does not pay any modus decimandi tom. to the parson of North Somerset; but it is alleged, that the parson (a) Supra of South Somerset pays to the parson of North Somerset 4s. in dis- 200. charge, which is not sufficient. For where a parson would be discharged by a modus decimandi, he ought to pay the modus himself according to the rule, qui sentit commodum, sentire debet et onus; and therefore as in this case he does not pay it himself, but another pays it for him, it will not be sufficient to discharge him from the payment. Sed non allocatur, for by Coke chief justice, Croke and Dodderidge justices, the custom is good enough to discharge the occupier of lands in North Somerset from the payment of tithes to the parson of North Somerset, though he pays nothing himself for [269] them to the parson; for he pays his tithes in specie of these lands to the parson of South Somerset, who pays 4s. to the parson, and 8s. to the vicar of North Somerset; and so the parson of North Somerset has a consideration, and the occupier has a discharge, though it be not between the parties themselves, according to the case of 1614. Hickes V. Froud. Pigot v. Heron, where it was ruled, that a custom to pay tithes to It was then moved by Houghton J. that no prohibition ought to have been granted in the case at bar, because the right to the tithes is to be discussed between two parsons, viz. the parson of North Somerset, and the parson of South Somerset ; and it has been often adjudged, that if a parson libel against one of his parishioners for tithes, upon a suggestion that the parishioner ought to pay the tithes or a modus to the vicar, a prohibition shall not be granted, because the right comes to be discussed between two ecclesiastical persons. Quod fuit concessum by Coke chief justice, who said, that it appears by the book of 22 E. 4. that if in an action of trespass the right to tithes comes in question, this court shall be ousted of jurisdiction. And in the case of one Bush who was parson of Pancras, and of lady Gresham, who had the parsonage impropriate of it was ruled, that if the parson libel in the spiritual court against one for tithes, who pleads that he pays 10s. in consideration of all manner of tithes to the vicar of the same parish; no prohibition in such case is to be granted; because the modus decimandi does not come in question; but the only point is, to whom the tithes of [270] right belong, and that is triable in the spiritual court. But still he said there was a great difference between that case and the case at bar; for in the case at bar the tithes are payable against common right; because to pay the tithes to the parson of another parish than that in which the lands lie, is against common right, and by intendment it ought to begin by some grant made by the parson, patron, and ordinary of North Somerset to the parson of South Somerset, or otherwise by some grant made by the parishioners before the council of Lateran, and therefore a prohibition might well be granted upon the suggestion of such a custom. But, where the parson and vicar are both in the same vill and parish, there, the tithes are paid of common right, and no prohibition ought to be granted. And in the case of Pigot v. Heron, where the question was between the parson and the lord of the manor, to which of them the tithes of right belonged, a prohibition was granted; for that the payment of tithes to the lord of the manor is against common right. And Coke took it to be a rule, that wherever a spiritual thing begins by temporal means, there, if there be a suit for it in the spiritual court, a prohibition may be well granted; and therefore if tithes are granted by deed to the parson of another parish than that in which the lands lie, and a suit be instituted for them in the spiritual court, a prohibition may be granted according to the Register Judicial, 84. (a) where may be found a supersedeas upon such a grant made by the prior of Lewes. And if an obligation or other specialty be made for marriage money, a prohibition shall be granted if there be a suit for it in the spiritual court; for the specialty alters the nature of it. (b) M. 12 Ja. A. D. 1614. B. R. 1614. Hickes V. Froud. by the name v. Back hurst. Qu. Whe- ther the Kent be exempted from pay ing tithe of underwood. Russell v. Patridge. [MSS. Calthorpe.] RUSSELL libelled in the spiritual court against Patridge, for the 2 Bulstr. tithes of silva cædua. Patridge suggested that the place where the 285. S.C. underwood of which the tithes are demanded is situated, is in the Weald of Kent, which contains 14 parishes, and that it was formerly all woody ground, and is now converted into arable and pasture land; and that there hath been a custom there time whereof, &c. that no one shall pay any tithe of wood; and upon this suggestion he prayed a prohibition. And Hendon argued that a prohibition might well be granted; for it seemed to him, that as an entire country may prescribe in non decimando for any particular thing; so may a particular place prescribe in non decimando; and [271] that an entire country may so prescribe appears from the last chapter of the Doctor and Student. In the next place the very statute of 2 & 3 E. 6. c. 13. discharges the Weald of Kent from the payment of tithes of wood: for the statute saith, that all predial tithes shall be paid in such manner and form as they have been of right yielded and paid within forty years next before the making of that act; and there were no tithes paid at all of wood, as appears by the alleged custom; therefore it shall be now discharged from the payment of tithes. 3dly, The parson has now a greater benefit than he hath had in time past; for at this day the Weald of Kent is converted into arable and pasture land, so that now the parson (a) Registrum Brevium. (b) See Pigot v. Heron, Moore, 483. supra, 200. Ord v. Clark, 3 Anstr. 638. infra, 1437. |