the prior and convent, it shall be so in the hands of the king; and consequently, its defects shall be supplied by this statute of 35 Eliz. Montague, Dodderidge, and Houghton, (Croke being absent propter ægritudinem,) were of opinion that judgement should be given for the plaintiff: and they resolved, 1st. That the statute of 4 H. 4. c. 12. does not extend to appropriations made before the 1st of R. 2. and that such appropriations as were made before that time are directed and governed by the rules of the common law; so that if the pope hed power, by his bull, to make a dissolution at common law, he has still the power to do so; and, consequently, the appropriation in the case at bar being made before the 1st of R. 2. the vicarage may well be dissolved, and the statute of 4 H. 4. does not prevent it. But, if the appropriation had been made after 1 R. 2. (a) then the pope would have had no power to dissolve the vicarage, because that statute strengthens the vicar's estate, so that it cannot be dissolved; nor can its possessions revert to the parsonage, as they might at common law. 1618. Ward V. Britton. Cur. 2dly. They resolved, that this instrument being an ecclesiastical instrument, ought to receive an exposition according to the ecclesiastical law; and, therefore, if the ecclesiastical law says that it was a sufficient instrument to make a perpetual dissolution of the vicarage, they were bound to give faith and credit to it, and to give [354] judgement accordingly. 3dly. They resolved, that this being a dissolution of the vicarage in reputation in the hands of the prior and convent, and so coming into the hands of the king, the statute of 31 H. 8. c. 13. will vest it in the king, and will give it to him, and supply the defects of the dissolution, if any there be, according to Priddle and Napier's case; and the statute of 35 Eliz. c. 3. will likewise interpose its aid in order to supply any defects. 4thly. They resolved, that the vicarage being dissolved, the lands (a) Rolle states that Dodderidge and Houghton held, that "if the appropriation had been within the statutes of 15 R. 2. and 4 H. 4. neither pope nor ordinary could have dissolved the vicarage: for if they could be supposed to have that power, the great design of the statute of 4 H. 4. namely, to have a vicar perpetually incumbent, might be defeated at pleasure." And bishop Gibson adds, that though such a power of dissolution were supposed to be consistent with the statute of 4 H. 4. it seems by no means reconcilable with the disabling statute of 13 Eliz. c. 10. against the granting or conveying the possessions of vicars, as well as of others, in any other manner than that statute directs Gibson's Codex 754. However in the case of Parry and Banks, M. 12 Ja. in the exchequer, (which case was cited in one of the argu ments in the principal case, Cro. Ja. 518. 2 Ro. 100. Palm. 114.) where a vicarage was endowed in 25 H. 8. in a church which was appropriated to the dean and chapter of St. Asaph, and in 24 Eliz. was dissolved by the bishop and re-united to the rectory, it was holden by the barons, that the dissolution was good; because the appropriation being to the dean and chapter, and so remaining in a spiritual hand which was capable of the cure, it might well be dissolved. And this appropriation being one of those which came into the king's hands in 31 H. 8. and was by the king transferred to the dean and chapter, the court further resolved, that if the impropriation had become a lay fee in the hands of a temporal possessor, the vicarage could not have been dissolved, because that would have been in effect to destroy the cure. 1618. Ward V. Britton. Palm. 222. Fullingmills are not tith able. Cro. Ja. 523. 2 Ro. Rep. Rolle states that the was grant ed. and tithes with which it was endowed should revert to the person from whom they were originally taken: for if there be a cessation of the function, there shall be also a cessation of the benefit. And judgement was given for the plaintiff. A writ of error was afterwards brought in the exchequer chamber, and the judgement was reversed; not however upon the matter in law, but upon a formal objection to the entering of the judgement. For the action was brought for two lambs; and for one the jury found a special verdict, upon which judgement was given for the plaintiff; but as to the other, the jury found the defendant not guilty. But in the judgement the defendant was not discharged of this lamb, nor was the judgement entered as to that quod querens eat inde sine die, but only that the defendant be in misericordiá for that lamb; and for this error the judgement was reversed, M. 19 Ja. It may be added, that it appears from the Liber Regis, that the vicarage or curacy at this day belongs to the Britton or Breton family, the impropriators of the parsonage. P. 17 Ja. A.D. 1619. B.R. Johnson v. Dandridge. [MSS. Calthorpe.] AUBREY Johnson, parson of in the county of York, libelled against Dandridge in court christian for the tithe of a fulling-mill, and for 6s. 8d. which was a modus decimandi for a water-mill; and upon a suggestion that no tithes are payable by the common law of the kingdom for such things as are invented 84. S. C. for the ease of man's labour, and that fulling-mills are of that nature, George Croke moved for a prohibition; and day was given to prohibition shew cause why a prohibition should not be granted. At which day I shewed cause: and I stated in the first place, that this was a mill newly erected, and being such, tithes were payable for it, according [355] to the statute of Articuli cleri, c. 5. in 9 E. 2. where, upon a petition exhibited by the laity, Quod si aliquis in fundo suo molendinum erexerit de novo, et postea a rectore loci decima exigatur, de eodem exhibeatur regia prohibitio sub hác formá, Quia de tali molendino hactenus decimæ non fuerunt solutæ, prohibemus, &c. et sententiam excommunicationis si quam hác occasione promulgaveritis revocetis omnino; the king answered, In tali casu nunquam exivit regia prohibitio de principis voluntate, qui et decernit talem perpetuò non exire. And agreeably to this resolution of the king in parliament the practice has always been that tithes are to be paid of newly erected mills; and a difference has been taken between ancient mills and newly erected ones; and, therefore, in a case in B. R. in 5 Ja. it was resolved, that tithes were demandable of newly erected mills, though ancient mills were to be tithe-free; and according to this difference 1619. Johnson it was agreed P. 7 Ja. and in the case of one Newman, M. 13 Ja. in C. B.; Tr. 14 Ja. in B. R. in the case of Bury and Daniel; Tr. 15 Ja. in B. R. And in M. 38 & 39 Eliz. in B. R. in the case v. of More and Russell, it was admitted, that tithes might be demand- Dandridge. ed for a windmill newly erected; though, because in that case the windmill was erected upon the demesnes of a manor which had been always discharged from the payment of tithes by a modus, a prohibition was granted. 2dly. It appears by the statute of 27 H. 8. c. 20. 32 H. 8. c. 7. 2 & 3 E. 6. c. 13. that tithes ought to be paid according to the ecclesiastical laws and ordinances of the church of England, and after the laudable and usual customs of the parish where the party dwelleth; and by the ecclesiastical laws, and ordinances of the church, tithes are payable of mills, as appears by the statute of Articuli cleri before cited, and by Lindwood in his book De decimis, (a) chapter, Quanquam exsolventibus, and comment on the words sicut fœni, where the opinion of Peter de Anchona is cited to be, quod in decimá fœni de molendinis, piscariis, laná et apibus, quæ de certis locis percipiuntur, non videtur consideranda parochia habitationis, sed loci ubi consistit, licèt multum plus in horum fructu hominis industria operatur, quam locus facit. And in the same book, chapter, Quoniam propter, and paragraph De proventibus, the constitution of archbishop Stratford is given; which is, De proventibus autem molendinorum volumus quod decimæ fidelitèr et integrè solvantur ; which word integrè the gloss expounds to be sine diminutione, sicut solvuntur decimæ proventuum, verè, sicut proventus accidunt, viz. decima mensura quorumcunque granorum molitorum ad commodum domini molendini vel molendinarii pertinentium. Et scias, quod fructus prove nientes ex molendino decimabuntur tanquam prædiales, non deductis expensis factis in re, circa rem, vel extra rem. And the tithing table [356] in the 11th question set forth by the allowance of the church of England, determines, that the tithes of mills, parks, ponds, warrens, dovehouses, and bees, are predial and tithable without deduction of charges, and the 10th measure of the corn is to be set out. And in the 4th question of the tithing table, a predial tithe is explained to be that which is perceived of the ground, and gathered of and from a place certain, in some one or other known, certain, and limited parish. And such tithes are to be paid to the parish church where the grounds do lie without deduction of charges, howsoever the industry and labour of man may seem and be alleged more to prevail in the making thereof, than the nature of the ground. And Rebuffus, fo. 23. § 6. saith, (b) (a) Lyndewode's Provincial, lib. iii. fo. 98. (Paris ed. 1505.) (b) This passage is extracted from Rebuffus's Tractatus novem de decimis, &c. a very scarce book, which I met with in the library belonging to the College of Physicians in Warwick Lane, where there is a very good collection of civil and canon law. (This work, together with others by the same author, are to be found in the Bodleian Library, Oxford. Ed.) 1619. Johnson V. Dandridge. De molendinis decima prestatur, ut si decem sextaria frumenti, siliginis, aut alterius grani molendini nomine consequar, unum pro decimâ șolvere adstringor, vel aliàs pro ratá: si vero pecunia pro molendini pensione solvatur, ex illá pecuniá decima solvetur illi ecclesiæ ubi molendinum situm est, etiamsi esset molendinum ad ventum, vel molendinum cathená super fluvio teneretur. And as to what has been objected, that the mills in the case at bar are fulling-mills, and of new invention, and that therefore the statute and ordinances above cited cannot extend to them, for that they only intend such mills as were in use at that time, I answer, that the statute and ordinances are generally of mills, which is the genus, and the others are but the species contained under the genus; and the statutes and ordinances being general of a mill, a fulling-mill is contained under it. And it appears by Luttrell's case, 4 Rep. 87. that a fulling-mill may be recovered by the demand of a mill generally; and a prescription to have a water-course to a corn-mill will serve where the corn-mill is changed to a fullingmill. And as to the objection that the tithes of fulling-mills are personal, and the statute of 2 & 3 E. 6. enacts, that personal tithes shall not be paid but where they have been accustomably used to be paid within 40 years before, I answer, 1st. From the authorities before cited that the tithes of mills are predial. 2. The statute declares what are to be understood to be personal tithes, where it says, that "every person exercising merchandizes, bargaining and selling, clothing, handicraft, or other art or faculty, being such kind of person and in such places, &c." so that he who works a fullingmill cannot be said to be any of the persons there enumerated, for [357] which reason it cannot be said to be a personal tithe. And in M. 12 Ja. in C. B. where, upon a libel against John King for the tithes of two grist-mills, a prohibition was moved for, because in the place where the grist-mills then stood there had been a fullingmill, for which and another grist-mill, there had been time whereof, &c. 6s. 8d. per annum paid, and that at such a time the fulling-mill was converted into a grist-mill, and that he had paid the 6s. 8d.; Warburton and Nichols J. refused the prohibition, for the modus could not extend to a grist-mill, that being a new thing; and tithes are to be paid in a different manner for a fulling-mill than they are for a grist-mill; for a fulling-mill they are to be paid by the 1d. and of a grist-mill by the toll-dish. And so upon the whole matter I concluded that tithes were to be paid of fulling-mills. Montague C. J. Croke and Houghton J. seemed at first to incline that a prohibition should not be granted, for that tithes ought to be paid of fulling-mills as well as of other mills; but they seemed to say that they were personal, and not predial tithes. But Dodderidge J. e contra; for he said that a great inconvenience would ensue if tithes were to be paid of fulling-mills; for by the same reason that they might be paid of fulling-mills, they might be paid of paper-mills, iron-mills, tin-mills, and all other mills of that nature, which would be excessively inconvenient. And he did not know in what manner tithes would be paid of fulling-mills, for it is not reasonable that they should be paid of the tenth cloth. And he did not find any text in the civil law, nor any opinion what tithes were to be paid of such mills. (a) 1619. Johnson V. Dandridge. may be tim tom. SAMUEL Wright and John Baldwin, the impropriate rectors of Aspen trees Chesham in the county of Buckingham, libelled against Richard ber by cusPoule for the tithes of aspen and cherry trees (b): and upon a sug- t. 293. gestion that those trees were of the age of 20 years, and are by the S. c. custom of that country reputed as timber-trees, a prohibition was granted, and a motion being afterwards made for a consultation it was refused; for that may be timber in one country which is not timber in another country; as the cutting of willows and sallows may be waste in one place, and not be so in another. The court [358] therefore advised the defendants in prohibition to try whether there was any such custom, (c) M. 17 Ja. A.D. 1619. B. R. Dickinson v. Reade. [MSS. Calthorpe.] 118. S.C. by the name of Dixon's In an action on 2 & 3 E. 6. brought by Dickinson, lessee of 2 Ro. Rep. Fleming, the son and heir of sir Thomas Fleming, chief justice of England, against Reade, lessee of Popham, the case appeared to be as follows: The abbot of Quarrer in the county of Southampton, being seised of the rectory of Arreton, and also of a grange called (a) Talbot v. May, 3 Atk. 19. infra, 782. R. A. 641. Hicks v. Triese, 3 Wood, 363. infra, 1022. Wilson v. Mason, 3 Wood, 28. infra, 974. (b) Bibye v. Hurley, Bun. 192. infra, 657. n. (c) Lapthorne sued in the spiritual court of Gloucester for the tithe of wood; and Bridgeman moved for a prohibition, because the suit was for beeches, which were of a great age, viz. eighty years old at the least; and also because the parson of the parish had had a consideration for the tithe of wood, namely a certain wood in the lord's wood for the tithe of wood time whereof, &c. and that he had never taken any tithe of wood. Coke. Buck is a beech, and thence the county of Buckingham took its name; and beech is timber in that country, and therefore it was adjudged in Sir George Carye's case that waste lay for beeches there. And in the parish in which I live tithe case. wood has never been paid; but the parson has a |