1648. Banister V. Wright. Tithes of extra paro and lands lying in a forest. M. 24 Car. A.D. 1648. B. R. Banister v. Wrigh. [Style 137.] In a trial at bar between Bonister and Wright, in an action upon the statute of 2 & 3 E. 6. for not setting forth tithes, it was said chial lands, by the court, that tithes, which lie not within any parish, are due to the king, and that lands must be parcel of a parish, either by prescription, or by act of parliament; and that lands lying within a forest, and in the hands of the king, do not pay tithes, although [502] they be withi a parish; but, if the lands be disafforested, and be within a parish, they ought to pay tithes; for their not paying tithes, king in the king's hands, is but an immunity for that time only, Tines payle for herbage mouths of horses. Hil. 6 & 7 Car. II. A.D. 1655. Scac. Guilbert v. Eversly. [Hardr. 35.] THE plaintiff preferred an English bill in the exchequer chamber, for tithes of herbage, as vicar of Ealing in Surry, against an inneaten by the keeper who depastured travelling horses, for which there was no travellers' customary payment; and the value of the lands depastured were proved to be thirty pounds a year. The court were in doubt what decree to make for a certain rate to the parson, it not being ascertained by custom: and they conceived, that they ought to have regard to the value of the land, which is proved to be thirty pounds a year, and so to allow him two shillings in the pound. (a) But, they agreed clearly, that tithes were payable for such herbage eaten by the mouths of travellers' horses, as aforesaid; and they held that tithe shall be paid for agistment of cattle by the occupier of the lands (b); but they said, they would award a commission to inquire into the value of these tithes, unless the parties agreed in the mean time, which they advised. Tithe for agistment of cattle payable by the occu pier of the land. The coun cil of Lateran, a general law received in P. 9 Car. II. A. D. 1657. Scac. Staveley v. Ullithorn. [Hardr. 101.] In an action upon the case in a feigned action, upon a bill in equity, and an order for a trial at law, the question was, whether certain lands were discharged of tithes, as having belonged to the England; abbey of Fountaines in Yorkshire, which was of the Cistertian and lands order; and it was held, by the court clearly, that the council of (a) Qu. See Smith v. Roocliff, Bun. 20. general. infra, 618. Startup v. Dodderidge, infra, 587., 197. extending to such money payments for tithes in Contra, see Simpson v. Tucker, 1Wood, Devereux v. Radley, ibid. €6. (b) Degge P. C. part ii. c. 5. 465. Watson's C. L. 1657. Stavely V. Ullithorn. Lateran, which freed that order from payment of tithes, was a general law received in England; and if these lands were discharged of tithes, from the time of that council, that no other covenant or contract made by the abbot to pay tithes, could dispense with this privilege, or make them liable to tithes; for once discharged by discharged that council, always discharged; for the council is as forcible as an that counact of parliament, which concludes all parties. such And the court was also of opinion, that if there were any agreement for payment of tithes, before the council, that yet this council, as a general law, which includes all men's consent, had dissolved it, and the lands were discharged. of tithes by cil are discharged by [503] law, as all lands be longing to the Cistertian order were. Wood's Exchequer Decr. vol. i. 24. S.C. Stiles, 411. P. 9 Car. II. A. D. 1657. Scac. The court in opinion, whether he was divided that is in by sequestration, be relievable in London, UPON a bill in equity, to be relieved for customary tithes in London, the case was, that the plaintiff's title was under a seques tration by parliament, and an order thereupon by the committee for plundered ministers; and the question was, whether he was relievable according to the decree confirmed by statute 37 H. 8. chap. 12. concerning tithes in London, by which the mayor of for custoLondon must be first addressed to; and the decree mentions only mary tithes the parson, vicar, and curate; and whether, he that is in by seques- according tration be within it, not being parson de jure, was the question. to And it was urged by the defendant's counsel, that he is relievable there, and therefore not here, because he comes in under the parson's title, and as his lessee. The same law is of an impropriator, who is not within the words of the decree; and that so it was lately ruled in Chancery, which the court agreed to, but yet were divided in this case; and it was afterwards, by consent, referred to compromise. M. 9 Car. II. A. D. 1657. Sheffield, clerk, v. Pierce and others. [Decree Book, 12th Nov. 1 Wood. 38.] to the de cree con firmed by the statute 37 H. 8. c. 12. statute city THE bill stated, that by the judgement of the late parliament of Plea of the England, assembled at Westminster, on the 3d of November 1640, 37 H.8. the rectory of St. Swithin's in London, stood sequestered from c. 12. $19. respecting Richard Owen to the use of A. Menlius, an orthodox divine; and tithes in the that, he relinquishing the same in the year 1647, it was, by the same parliament, in the same year, afterwards ordered, that the same rectory should thenceforth stand sequestered to the use of the plaintiff, and that he should officiate the same, and have to his use parsonage-house, glebe-lands, and all the tithes, rents, duties, the London, to a bill in equity for the tithes of the parish of St. Swith in's, overruled. 1657. Sheffield, clerk, v. Pierce and profits whatsoever of the said rectory to his own use, till further order should be taken in the premises; that by virtue of the said order of parliament he entered, and officiated in the cure, and *performed his duty therein in all things, and ought to have had the and others. tithes, offerings, profits, and commodities, of what kind soever, be* [ 504 ] longing to the same as rector and parson there, as the former ones had heretofore had and received and enjoyed the same. The bill then set forth the statute and the decree, confirmed by act of parliament in the 37th year of H. 8. touching the payments of tithes by the citizens of London after the rates of every 10s. a year rent 1s. 44d. and for every 20s. the sum of 2s. 9d. and so on; and that the greatest part of his parishioners have and still do continue payment of all kind of tithes, offerings, duties, and profits to the plaintiff, or some recompence for the same; but the defendants have for five years refused the payment of the same. The plaintiff therefore prayed, that the defendants may make a full discovery of the messuages, &c. they held for the same years, and the yearly rent, and that the tithes and duties due for the same may be decreed to him accordingly. The defendants put in a plea and demurrer, setting forth, that the plaintiff entitles himself to the tithes in question by an order of the late parliament begun and held at Westminster in 1640, but makes his title by act of parliament made in the 37th year of H. 8. and of a decree made thereupon; and that it was doubtful whether the plaintiff, coming in by sequestration, be relievable before the mayor of the said city of London; and therefore the said defendants for plea say, that the said act of parliament and decree do only provide for the recovery of tithes in London; and that in and by the said decree it is decreed, "that if any variance, controversy, or ❝strife, did or should arise in the said city for any payment of "tithes, then, upon the complaint by the party grieved to the mayor "of the said city, he shall, by advice of counsel, call the par"ties before him, and make an end of the same; and if he should "not within two months after the complaint, the lord chancellor of "England, within three months after complaint made to him, "should make an end of it;" that the said plaintiff ought to have pursued the way directed by the said decree; and that if the plaintiff be not relievable within the said decree by the said lord mayor of London and lords commissioners of the great seal of England, as he said by his said bill he is, much less could this court take cognizance or jurisdiction of a case of this nature whereby to relieve the said plaintiff. Upon reading the plea, and hearing counsel on both sides, on the 24th of November 1655, It was ordered by the court, that the said plea and demurrer should be over-ruled, and that the said defendants should answer the said bill. 1657. Sheffield, clerk, V. Pierce and others. The rate ordered by c. 12. § 2. on the rent The defendants answered, and denied that they knew that the plaintiff was ordered to officiate the cure of the said parish as rector there and have the profits, or that he had officiated there; and that if he had any title thereto, they did not conceive him to be entitled to 2s. 9d. in the pound for his tithes according to the rents they then paid for their houses, it not being the intent of the said statute and decree to pay tithes according to the improved rents, but according to the old rents as they were before the said statute; they confessed that they were inhabitants, and set forth the houses, &c. and the rents they paid for the same; and that when the said assessable plaintiff first came to officiate there, he agreed to accept of 120l. per annum with some of the parishioners in lieu of tithes and duties there, which had been constantly paid to him. The plaintiff replied; the defendants rejoined; and witnesses were examined on both sides. Now, upon full hearing and full debate, and reading the proofs in the cause, and the said order of parliament begun and held at Westminster aforesaid, on the third of November 1640, bearing date the 30th of December 1647, it appeareth to the court, that it was ordered that the said rectory of St. Swithin should thenceforth stand sequestered to the use of the said plaintiff, and he to officiate the same, and to have all the tithes, duties, and profits whatsoever of the said rectory to his own use; and also it appeareth, that the said plaintiff, by virtue of the said order of parliament, did ever since officiate the said cure, and perform his duty therein in all things, and therefore ought to have had the tithes, offerings, profits, and commodities, of what kind soever, belonging to the said rectory, as rector and parson there, as the former ones there theretofore had had and received the same; and that the said defendants had not paid the tithes due to the plaintiff for the several years complained of in the bill to be behind and unpaid. lieu of on the im proved rents of such houses. And as for the composition, pretended to be made between the said parishioners and the said plaintiff, to accept of 120l. per annum in lieu and satisfaction of all tithes and duties due and payable to him within the said parish, it appeareth to this court, that the said composition was to continue for the space of three years next after the said plaintiff's coming to officiate there, and no longer; and there not being sufficient proof made on the said defendant's behalf that the said sum of 120l. was paid to the said plaintiff any longer than [506] the said three first years. The court is therefore fully satisfied, for the reasons before alleged, that the defendants ought to have satisfied and paid their 1657. Sheffield, clerk, v. Pierce 1 several and respective tithes, due and payable by them, to the said plaintiff for the years aforesaid complained of by the bill, according to the rate of 2s. 9d. in the pound for their several houses, shops, warehouses, cellars, and sollars, which they held within the said and others. parish, according to the several yearly rents which they severally and respectively pay for the same (a): yet nevertheless in regard the said plaintiff, being present in court, did declare himself willing to accept the several sums heretofore paid by the said defendants, and mentioned in the decree for their several houses, &c. for tithes, in full satisfaction of all tithes due and payable to the plaintiff by the said defendants; and that the said defendants shall continue the payment of the same as long as he continues rector thereof, and they continue inhabitants within the said parish; and if any differences arise between the said parties touching the payment of the tithes according to the several rates and proportions in the decree mentioned, it is referred to the auditor of his highness's revenue within the city of London to cast up the same upon view and perusal of the said pleadings, and certify to this court his doings and proceedings therein with all convenient speed; and that upon return of the said certificate the said defendants shall thenceforth satisfy and pay to the said plaintiff all such sums of money as shall be certified by him to be due to the plaintiff. And it is ordered, that the said defendants shall satisfy and pay to the said plaintiff 10%. for his costs and charges by him sustained in the said cause. An endowment that the vicar of M. 9 Car. II. A.D. 1657. Scac. Coe, clerk, v. Mason. [Decree Book, 26th Nov. 1 Wood. 41.] THE plaintiff, as vicar of the parish church of Branghinge, exhibited a bill, setting forth, that he, on the first of June 1648, by an Branghinge order of the committee for plundered ministers appointed by authoin Hertfordshire, rity of parliament, was nominated and appointed to officiate the shall cure of Branghinge (being at that time under sequestration for the "wholly receive and delinquency of William Archer incumbent,) and to hold and enjoy the vicarage-house and the glebe-lands, and also to take, receive, [507] and enjoy, all and singular the tithes, benefits, and profits thereof, ventions of as had been before received by his predecessors; and that he had fully performed the cure, whereby he was entitled to have and receive all manner of small tithes; that from time whereof the memory of man is not to the contrary, or otherwise, by some ancient house, and endowment, the vicar of the said parish church, for the time being, hath received and taken, and is entitled to take, receive, and enjoy, fully pos sess all ob the altar, with the tithes, and the vicarage. all the land (a) Ivatt v. Warren, infra, 1054. Sayer v. Mumford, infra, 546. Kynaston v. Willoughby, infra, 891. n. Warden and Minor Canons of St. Paul v. The Dean, 4 Pri. 65. infra, vol. ii. The Minor Canons of St. Paul v. Crickett, 5 Pri. 14. infra, vol. ii. |