1658.

swer to all

[518]

other parts

of the bill;

but, if he pleads it,

their rents, and answered to all parts of the bill; but, if the defendants had pleaded it, they need not have answered to any other matter. And so it was ruled, though objected, that if the proofs were against them upon the modus, they might then answer upon interrogatories, to the particulars.

answer to any other matter. Vide infra 628. Gumley v. Fontleroy, contra, as to this point.

Defendants

must an

bill for dis

covery of

M. 12 Car. II. A. D. 1660. Scac.

Phillips v. Kettle. [Hardr. 178.]

In debt upon the statute of 2 & 3 E. 6. the plaintiff declared, that he was rector of St. Martin's All Saints, and that by reason thereof he ought to have the tithes of 100 acres of land in the said parish of St. Martin's All Saints, and the tithes of 80 acres of land in the parish of St. Martin's Genavesee, without shewing how he became entitled to the lands out of his parish. This was holden by the court to be well enough after verdict: besides that, a general allegation without shewing a title, is well enough in this action.

Cage v. Warner and another. [Hardr. 182.]

THE bill charged, that the plaintiff in the month of May 1658, swer an in- became incumbent of the church of Bearested in Kent; and that cumbent's the defendants in June 1658 and 1659, by colour of an order of sequestration, made by the committee, in the county of Southamptithes ille ton, as they pretended, had seised divers tithes of divers parishioners, gally seised, with all the within the plaintiff's parish, due to the plaintiff; and to discover particulars the particulars of the tithes so taken, and their values, and to have them paid to the plaintiff, was the scope of the bill; to which the defendant demurred, because it is a matter determinable at law, and a criminal matter; but the court put the defendants to their answer, because it is matter of discovery.

and values.

The vicar of Canew

down in Essex, claims by

custom

3s. 6d. in

T. 18 Car. II. A. D. 1661. Scac.

Devereaux v. Radley. [1 Wood. 66.]

THE bill set forth, that, for two years past, the plaintiff hath been vicar of the vicarage of Canewdown, in the county of Essex, and entitled to have and receive tithe of herbage and all other small tithes of what kind soever growing, &c. within the said parish or the pound the bounds and precincts thereof, or to have other customary duties in lieu of tithes by prescription, custom, or endowment: that the marsh lands defendant for five years past had been the farmer of a marsh and the tithe of pasture ground there, containing seven hundred acres, and had fed the herbage thereon great stores of cattle; that he withholds from the plaintiff lands. the tithes and customary dues for the said cattle, and all other

on the rent

of certain

in lieu of

of the said

tithes; that every farmer of lands, when depastured with cattle within the said parish, have used to pay to the vicar there three shillings and sixpence in the pound for every pound the lands are rated at in lieu of tithe herbage, or some satisfaction for the same; that the defendant, being occupier of the said marsh for two years past at the rent of 210l. a year, did depasture thereon divers cattle for which there is due yearly to the plaintiff three shillings and sixpence in the pound, which the defendant refused to pay, and therefore he prayed a discovery and satisfaction for the same.

1661.

Devereaus

V.

Radley.

Defendant

says that

the usage

has been to

in the

The defendant confesses, that he holds lands which lie part in Canewdown, and part in the parishes of Althorne and Crivey, at the yearly rent of 2201. and that the land lying in Canewdown is yearly worth 2001. a year; that he hath rented the same for twenty-four pay only 1s years past, during all which time he hath usually paid to the vicar pound. thereof twelve-pence in the pound for every yearly pound rent; and that he usually paid the vicar yearly eleven pounds and no more, being twenty shillings more than the twelve-pence in the pound, which was always received by the former vicars; and that the usual payment for marsh land which was grazed was no more, and which he was willing to pay; and he set forth the number of cattle he fed thereon.

The plaintiff replied, and witnesses were examined on both sides. upon opening the pleadings, and reading the depositions of several witnesses in the said cause.

For that it appeared that the pastures, whereof the tithe herbage is demanded during one year and a half, were wholly depastured with barren cattle, and such as yielded no titheable profit; and consequently of common right tithe herbage is due for the same; and forasmuch as it appeared that the said pastures are and have been usually let for 2001. per annum, and consequently in an ordinary estimate the tithe herbage of the pastures aforesaid being so employed as aforesaid amounts yearly to twenty pounds, viz. two shillings for every twenty shillings; and according to such rate the tithe herbage hath been usually rated and paid in the said parish, when the pastures or marshes have been so fed and depastured.

༨

pay 2s. in

It is ordered by the court that the defendant shall pay to the Defendant plaintiff thirty pounds in lieu of tithe herbage for the said marsh ordered to or pasture grounds held by him within the said parish for one year the pound. and a half, which is according to the rate of two shillings in the pound by the year, for every pound rent the said lands are rented at, the same being rented at 200l. per annum.

(a)

v. Bickham, 1 Wood, 269. cases where customary payments by way of poundage have been allowed.

1662.

Page's Case.

Defendant

his answer,

of

H. 15 Car. II. A.D. 1662. Stac.

Page's Case. [Hardr. 322.]

In a bill for tithes, the defendant, by his answer set forth, that

set forth in the lands whereof tithes were demanded, were parcel of the priory and that the lands belonging to that priory were discharged by order, without saying more, and this was held suf

that the

lands where tithes were

demanded, ficient: which note, because of the uncertainty.

were parcel

of a priory, which was discharged by order, without more, and held good.

[514]

Though complain

ant did not shew how

of

H. 14 & 15 Car. II. A.D. 1662. Scac.

Stone v. Ludlowe and others. [Hardr. 321.]

In a bill for tithes due to the complainant, as vicar and incumbent in Essex, the complainant did not shew how he was entitled to them, viz. by prescription, endowment, or othertitled to the wise; and the court held it to be good notwithstanding. Which note, for it is against many precedents in this court, which I have known of demurrers for that cause held to be good.

he was en

tithes, yet held good; but quære.

The king

may prescribe in non decimando.

IN an action of debt on the 2 & 3 E. 6. for tithes of Eltham Park in Kent, the general issue was pleaded, and upon a trial at bar it was holden upon evidence by Hale, C. B. and the whole court, that the king is not by virtue of his prerogative discharged of tithes for the ancient demesnes of the crown; but, that he is capable of a discharge de non decimando by prescription, because he is persona Supra 167. mixta, as well as a bishop. Vide 2 Rep. Bishop of Winchester's case. But, if the king alien any of the lands which he is so discharged of tithes for, his patentee shall pay tithes; and not only so, but the prescription is destroyed for ever, though the same lands should afterwards come into the king's hands again, by escheat or otherwise.

Vicar who hath, time

Tr. 15 Car. II. A.D. 1663. Scac.

Twiss v. Brazen Nose College in Oxford, Blunt, and others.

[Hardr. 328.]

In a bill at the suit of the vicar of Gillingham, in Kent, for tithes of the manor of Uxbury, and other lands belonging to the rectory impropriate of Gillingham aforesaid; the tithes demanded were for used to take eight years last past, and ending in the year of our Lord 1661.

out of mind, or for a long time,

tithes or

other profits, shall

The case upon the hearing appeared to be, that for divers years before the bill exhibited, in the times of many vicars, the said tithes not be con. had been enjoyed by the said vicars of Gillingham aforesaid; but an

Twiss

V.

endowment was produced bearing date the 7th day of March, in 1663. the year 1362, mentioned to have been made by Islip, then arch*bishop of Canterbury, and preserved in the archbishop's register; by which it did not appear, that the vicar was endowed with any tithes of corn or grain; nor in the said instrument was liberty reserved to the archbishop, as is usual in such cases, to augment or diminish, &c. and it was thereupon insisted, that the vicar ought not to have those tithes.

Brazen Nose Col

lege in Orand others.

ford, Blunt,

cluded by

the tithes

of the vicar

But the court held, "that where a vicar has used time out of not being expressed mind, or for a long time, to take tithes or other profits, he shall in the ennot be concluded by their not being expressed in the endowment of dowment the vicarage," and that it had been often so held and ruled; and it age. shall be presumed, by reason of a long possession of such tithes, &c. *[515] that the vicarage has, at some time or other, been augmented therewith; and the not reserving such a power to the archbishop is not material; for an augmentation may have been notwithstanding with the assent of, or upon citing, all parties; but not without notice or citation; as it may be, when such a power, as aforesaid, is reserved to the archbishop. (a)

M. 16 Car. II. A.D. 1664. Scac.

Grant v. Hedding and Ball. [Hardr. 380.]

In a bill in equity for the tithes of a nursery sold; upon the of tithes hearing of the cause divers doubts and questions were made: as, First, Whether tithes should be paid, if the trees yielded no other fruit?

due and payable for a nursery

trees, fruit, and for

Secondly, Whether tithes should be paid for those trees, that corn. yield fruit, which pay tithes?

Thirdly, If some yield fruit and others not, whether or no, those that yield fruit, privilege and exempt the others that yield none, when they are all sold together? (b)

Fourthly, Whether tithes shall be paid for them, when they are

sold and transplanted within the same parish?

Fifthly, Whether the vendor or vendee shall pay the tithe?

And the court was of opinion, that if the owner sells them and [516] pulls them up himself, he shall pay the tithes; but if he sells them particularly to another, the vendee shall pay the tithes; as in case of tithes of corn, if corn be standing, the vendee shall pay the

(a) The decree-book states, that "the court, "although fully satisfied by the proofs, with the "plaintiff's right and title to the said tithes of "corn and grain, as vicar of Gillingham, did not"withstanding think fit, before they proceeded to "decree the said cause, to give the defendants "time to consider whether they would desire a "trial at law, touching the said tithes and the

"said plaintiff's right and title thereunto, which "trial was to be at law." Time was accordingly given, but the defendants not appearing by counsel at the day appointed, a decree was made in favour of the plaintiff. (See Doble v. Potman, 512. and the editor's note. Ibid.)

(b) See Adams v. Waller, infra, 1234. 1 Rolle's Abr. 641.

1664.

Ingleby

tithes; but if it be sold after severance, the vendor must. (c) And adjourned.

V.

But afterwards tithes were decreed in all such cases.

Wyvell.

Between

the years 1216 and 1261, a composition was made be

tween the abbot and

the abbey

of Foun

tains, of the

Cistertian

order, and

the prebendary of Studley, that the

convent

should be

for ever free from the payment of tithes of their lands

(c) Taswell v. Athill, infra, 537. Gibbs v. Wybourne, Sir W. Jones, 410, supra, 501. Lockin v. Davenport, supra, 472.

M. 16 Car. II. A. D. 1664. Scac.

Ingleby v. Wyvell. [Hardr. 381.]

IN trover and conversion for a lamb and a sheaf of wheat, upon not guilty pleaded a special verdict was found to this effect: viz. that the abbey of Fountains had been time out of mind of the order of Cisteaux, which order was exempted from payment of tithes of their lands, quas propriis manibus excolerent: that before the council of Lateran this abbey was seised of the territory and grange convent of of Stenning forth within the prebend of Studley and the parish of Rippon that betwixt the years 1216 & 1261 there was a composition between the abbot and convent and the prebendary of the said prebend under their common seals, that the abbot and convent should be for ever free from payment of any tithes of their lands which they tilled at their own charge in Stenning forth, and beabbot and longing to their grange of Galgach within the territory of Winkesley, A. D. 1216, and that they should pay tithes for all other lands there and elsewhere out of the said grange of Stenning forth: and that the said abbot and convent should pay annually to the said prebendary and his successors the sum of five marks by equal portions, the one moiety to be paid at Easter, and the other moiety at which they Michaelmas. It was further found, that upon the 12th of November, A. D. 1359, there was another composition made between them under the seal of the convent and the prebendary, reciting the within a former composition, (but it was not found that it was confirmed by certain grange the patron and ordinary,) and by this latter composition, the prewithin the bendary and his successors for all time to come were to have their prebend, and that election yearly, either to receive tithes in kind of corn and grain they should arising within the places aforesaid, as well of lands in the hands of pay tithes for all lands the abbot and convent, as in the hands and manurance of their grange, and tenants, else to receive five marks to be paid by the said abbot and convent in lieu thereof, so as such election were notified to the abbot and convent should pay annually to the prebendary and his successors five marks. It was further found that in the year 1359 there was another composition reciting the former, but it was not found that this was confirmed by the patron and ordinary by which the prebendary and his successors were to have their election yearly, either to receive tithes in kind of corn and grain arising within the places assessed as well of lands in the hands of the abbot and convent as in the hands and manurance of their tenants, or to receive five marks, so as such election were notified to the abbot; and for those years in which the prebendary should chuse to receive tithes, the five marks were not to be paid. The possessions of the abbey came to the crown by stat. 31 Hen. 8. It was held that the second composition did not affect the successors of the prebendary, and that therefore the abbot was not bound by it; that the power of election was gone, and that therefore the first composition should stand, quoad terras in manibus, &c, and that for the others tithes in kind might be taken.

tilled with their own hands,

without the

that the