2. Where tithes were devised to a curate, and to all that should serve the cure after him, the lord chancellor decreed that the heir of the devisee should be seised in trust for the curate for the time being.-32 Car. 2. Canc. Perne v. Oldfield. 1. 256 | 3. Curate, though made perpetual, being in fact removeable (the appointment being in its nature revocable at law, without any cause assigned, and by the ecclesiastical law on cause shewn,) cannot sue for tithes.-3 Geo. 2. Scacc. Price v. Pratt. ii. 9 4. An Act for the better maintenance of curates within the church of England.-12 Ann. stat. 2. c. 12. iv. 205 5. Tithes may be holden by a curate.-32 Geo. 3. Scacc. Tamberlain v. Humphreys. iii. 1367 6. An Act for the further support and maintenance of curates within the church of England, and for making certain regulations respecting the appointment of such curates, and the admission of persons to cures augmented by Queen Anne's bounty, with respect to the avoidance of other benefices. -36 Geo. 3. c. 83. iv. 230 7. An Act for the further support and maintenance of stipendiary curates.-53 Geo. 3. c. 149. iv. 262 8. An Act to consolidate and amend the laws relating to spiritual persons holding farms; and for enforcing the residence of spiritual persons on their benefices; and for the support and maintenance of stipendiary curates in England. -57 Geo. 3. c. 99. iv. 282 CUSTOM.-See DISCHARGE-MODUS- 1. One prescribed to pay three farthings for all willows cut down by him in such a parish; it was held bad, for if he cut down those of other men also, but the same sum would be paid for them all. But if he had prescribed for all willows cut down upon his own land, then it had been good.-29 El. B. R. Anon. i.91 2. Where to have a prohibition it was suggested that every inhabitant in S. that had pastures in N. had paid tithes for them to the vicar of S. who had paid to the parson of N. two pence for every acre; it was held insufficient, for no modus would come in question, but who should have the tithes. The court also held the custom not reasonable.-30 El. B. R. Gratefuld v. Penn. i. 93 - 3. Finding, straw for the body of the church is no good modus in discharge of tithes of hay, unless it be shewn that the parson had a benefit from it; but if the straw had been given to the parson, and he bestowed it on the body of the church, or he had a seat in the body of the church, it had been otherwise.-34 El. B. R. Scory v. Baber. i. 106 4. Payment of tithes of one thing cannot be a satisfaction for the tithe in kind of another, but Walmesley said that money might be a satis faction for many or all tithes.-38 El. C. B. Grysman v. Lewes. i. 112 5. A prescription to be discharged of tithes. of all dry cattle, and all other tithes of corn, hay, and cattle, in consideration of having paid the tenth cock of hay, the tenth sheaf of corn, and a modus for calves, is bad, for that which has been paid is but the tithes in kind, and therefore cannot be in satisfaction of any thing but themselves.-42 El. C. B. Ingoldsby v. Johnson. i. 152 6. An established custom cannot be affected by a modern temporary interruption.-43 & 44 El. B. R. Nowell v. Hicks. iii. 1201 7. There is a difference between a suggestion to have a prohibition, and a prescription comprised in it, and a prescription made in defence, or by way of plea in any original action; for in the latter case of a joint prescription made for two things, a failure in one destroys the whole, because that is by way of title; but otherwise here, because this prohibition is only to give jurisdiction to the King's court.-2 Jac. B. R. Anon. i. 159 8. Upon suggestion of a special custom, as to the mode of paying tithes, prohibition shall be granted.-12 Jac. B. R. Hicks v. Froud. i. 234 9. A custom that the parson of S. S. should pay 4s. to the parson, and 8s. to the vicar of N. S. and so the inhabitants of S. S. having lands in N. S. paying tithes to their parson, should be discharged of tithes of cattle depasturing upon a waste in N. S. held good. S. C. 10. To demur to prescriptions at first is dangerous; it is best to join issue upon the custom, and try the facts, and afterwards, if necessary, to demur in law. (By Coke.)-13 Jac. B. R. Mascall v. Price. i. 225 11. Where the issue in the spiritual court is upon a custom which gives a recompense for the tithes in kind, a prohibition ought to be granted; but otherwise where the custom gives no recompense to the parson.-15 Jac. B. R. Gose v. Baines. Portinger v. Johnson. S. P. i. 261 ib. 12. In a libel for tithes it was alleged that the custom was (inter alia) that the parishioner should preserve the parson's tithes until he should carry them away; prohibition was granted, for he is not bound to guard the tithes, and if the parson do not carry them away in convenient time, an action on the case lies.15 Jac. C. B. Dr. Brigman's case. i. 289 13. A custom was alleged to pay the tenth part of the rent reserved upon leases for tithes : the court took time to consider the custom.16 Jac. C. B. Napper's case. i. 296 14. A custom admitted in the spiritual court may be tried there; but if it be denied, prohibition shall go.-1 Car. B. R. Anon. i. 338 15. Tithe of fish is due merely by custom, which if disputed, shall be decided by the common law courts: for though customary payments for tithes due de jure, may be sued for in the spiritual court, yet if the tithes be not due de jure, but by custom only, as of fish, rabbits, ore, limekilns, &c. the custom shall be tried at common law, after which the spiritual court may proceed upon it.-3 Car. C. B. Anon. i. 357 16. If there be a custom to pay for three calves 1d. and if seven, one calf, the parson shall not have a calf where there were three in one year and four in another, he having neglected to take tithe of the first three.--3 Car. B. R. Anon. i. 360 17. A bill was filed to establish certain customs of tithing within a particular parish, the plaintiff alleging, that there were such customs, and setting them forth at large in his bill. The defendant, by his answer, denied the customs; and alleged, that it was not proper for a court of equity to determine whether there were any such customs or not; that the bill was in nature of a prohibition at common law; and in case where such a prohibition had never been granted, or the custom tried; and therefore the bill was dismissed.-5 Car. Canc. Anon. i. 370 18. It is not a good modus, that in consideration that the parishioner having barley,the greater part whereof he has cut down, and tied into sheaves, and set in cocks, of which the parson had the tenth cock, that he has used to leave a small parcel of the barley to stand, to the intent to cut it down after for bands for the rakings involuntarily scattered, and to be discharged of this small parcel of barley when he cuts it.— 8 Car. B. R. Saunders v. Paramour. 1 Ro. Abr. 650. 19. Quare, whether a custom that the inhabitants of the precinct of a chapel should be freed from the payment of tithes in consideration of finding a rope for a bell, and repairing part of the mother-church, be good.—17 Car. B. R. Anon. i. 401 20. It was said by BERKELEY, J. that it is a rule, where the parishioner does any thing which he is not compelled by the law to do, which comes to the benefit of the parson, there if he demand tithes of the thing in lieu whereof this is done, a prohibition shall be granted.15 Car. B. R. Anon. i. 399 21. A custom to pay less than the tenth for things of which tithes are due of common right, is not good without other matter.-18 Car. 2. B. R. Penrose v. Shepherd. i. 448 22. TWISDEN said, that where the libel is grounded on a custom, whereof they have original conusance, there no prohibition will lie on denial of the custom; but contrà, where the thing lies there only by virtue of the custom, and not otherwise, as in libel for tithes of conies, does, or fish; which was not denied by any.-21 Car. 2. B. R. Philips v. Clever. i. 479 (The 23. A custom to pay the thirtieth shock of corn grown on the demesne lands of a manor in satisfaction of all tithes, held good. manor had been granted by H. 8. and therefore the lands had probably belonged to a spiritual body.)-2 W. & M. Scacc. Harker v. Clarke. i. 563 24. A man cannot prescribe to pay less of the same thing, but ought to prescribe to pay. some other thing in lieu of it, or to pay it in some other manner than the law prescribes, so that the parson has a benefit by it.-10 W. 3. B. R. Hill v. Vaux. i. 629 25. A custom that all freeholders shall pay five pence, and all leaseholders nine pence, an acre quarterly in lieu of tithes, and that those 27. A custom that the occupiers of ancient tenements within a parish should each carry a cart-load of peat to the parsonage house, in discharge of the tithes of hemp, flax, and hay, arising on such tenements is void, for a cartload is too uncertain, and no right of turbary alleged in the parsonage house or ancient tenements.-9 Geo. Scacc. Tully v. Kilner. i. 787 28. A custom that the parson had enjoyed a meadow and several beast grasses in the parish in lieu of tithes, held to be void for the uncertainty.-10 Geo. Scacc. Birch v. Stone. i. 797 29. A custom alleged in a suit, in prohibition, differs from other allegations of customs, for in those the custom must be proved exactly as it is laid, otherwise the party fails; but in prohibition the defendant is considered as an actor, suing for a consultation, and therefore, if upon the whole it appear to the court, that there is a modus, they cannot grant a consultation.-10 Geo. 2. B. R. Sharp v. Lowther. 2. Baron and feme may join in an action on 2 E. 6. if the husband be seised of the rectory in right of his wife, or in jointure with her. 34 El. B. R. Wentworth v. Crispe. i. 105 3. A husband was possessed of a lease for years of tithes, in right of his wife; held, that they might well join in an action on 2 E. 6. for the treble value; that such action should be brought in the temporal courts; that the particular kind of corn sown need not be expressed; that the treble value goes to the owner of the tithes, and not to the queen.-40 El. B. R. Bedell v. Sherman. i. 140 4. An action of debt qui tam pro rege, &c. does not lie, (for the crown shall rather have a fine for the contempt by information or indictment,) but the party grieved may have it, and treble damages, and not guilty is a good plea.40 El. B. R. Johns v. Carne. i. 140 5. Not guilty or nil debet are good pleas to an action on 2 E. 6. for it is not for a nonfeasance, but a malfeasance.-42 El. B. R. Wortley v. Herpingham. i. 151 6. In debt on 2E. 6. the jury must give treble damages, but no costs or other damages. 7. A farmer of tithes may sue by the equity of the statute, because he has a right to the tithes, though the statute do not give the action to the farmer. Two farmers may join in an action, and an agreement with one shall bind his companion.-44 El. B. R. Day v. Peck well. i. 154 8. One action may be brought upon 2 E. 6. upou several titles, as parson and vicar, if those titles be joined in the plaintiff; and the tithes are recovered in damages, and cannot be demanded again by any suit, after a recovery in this action.-3 Jac. B. R. Champernon v. Hill. i. 161 9. Debt by two on 2 E. 6. who recover treble value and damages and costs, they release the damages and costs, being in doubt whether they ought to have them, and take judgment for the treble value: error was brought in the Exchequer Chamber, for that it was shewn by plaintiffs for title, that the Queen let the rectory to A. for life, who let it to the plaintiff for years, but they did not say by letters patent produced here in court; but held, that as plaintiffs had but parcel of an estate, viz. a lease derived out of a lease for life, and because the letters patent did not belong to them, and for that the action was to punish a tort, and not to demand the tithes, and the title shewn in the declaration was but a conveyance to the action, the declaration was good without shewing the letters patent, but otherwise if it had been pleaded in bar. 10. A farmer may sue for the treble value on 2 E. 6. in the temporal courts. 11. In an action brought by two farmers, it is sufficient to say, that the defendant did not 12. Where it was moved in arrest of judgment that the plaintiff had declared on the statute made 4 Nov. 2 E. 6. and that there was no such statute, for the parliament commenced 1 E. 6. and continued by prorogation till 4 Nov. 2 E. 6. the court held the declaration good, as all the precedents were so.-6 Jac. B. R. Oliver v. Collins. i. 172 13. A husband, proprietor of tithes in right of his wife, sued alone for the treble value against a parishioner who set forth his tithes, but afterwards took them away; held that the action lay for the fraud, but that the wife ought to have been joined.-8 Jac. C. B. Ford v. Ponnoy. i. 198 14. In an action on 2 E. 6. it is sufficient for the plaintiff to state himself in the declaration to be proprietor without other title; the principal matter is the damage for not setting out tithes, which alone is traversable.-9 Jac. C. B. Willott v. Spencer. i. 200 12 Jac. B. R. Babington v. Matthews, S. P. i. 224 15. No action lies upon 2 E. 6. for not setting out tithes of lamb and wool, for they are not predial; and no action lies upon this statute for small tithes.-10 Jac. C. B. Anon. i. 203 16. Objections to an action on 2 E. 6. 1st. That the offence was alleged by way of recital. 2. That the word "owner" was omitted. 3d. That it was not shewn how proprietor. 4th. That it was not shewn by whom the corn was sown. 5th. That the time of the asportation of the corn was not stated, overruled. 10 Jac. B. R. Moyle v. Euer. i. 204 17. In an action on 2 E. 6. a variance between a lease stated in the declaration, and a lease proved, is immaterial, as it is but an inducement to the action which is founded on the wrong.-11 Jac. B. R. Wheeler v. Haydon. i. 219 18. The word "forfeiture" in the statute 2 E. 6. does not give the treble value to the King, but to the parson himself.-11 Jac. Dean and Chapter of Windsor v Webb. i. 220 19. The stat. 2 E. 6. does not give any damages for mere subtraction of tithes; but if the tithe be first set out, and then subtracted, then because the parson had once an interest, he shall recover treble damages. If the jury give £20 damages, then the court shall treble them and make them £60.-11 Jac. C. B. Baldwyn v. Gyrrie. i. 220 20. In debt on 2 E. 6. the number of loads of corn need not be expressed in certain.-12 Jac. C. B. Anon. i. 232 21. Dodderidge doubted whether non-payment for forty years before 2 E. 6. was not a bar to the right of action under that statute, for as by the canon law twenty years possession makes a prescription for the church and forty years against it, he thought that nonpayment for forty years prevented any remedy under the act to enforce a payment, for there being no remedy before this act at common law, a layman should only sue as the act enabled him.-15 Jac. B. R. Dobitoft v. Curteene. i. 262 22. A portionist may declare generally on 2 E. 6. without setting forth his title, for the action is to punish a tort, and is not founded upon the title, so that the right may come in question; and it is not necessary to set out the quantity of every grain in specie.-15 Jac. B. R. Saunders v. Sandford. i. 270 23. Nil debet a good plea in debt upon 2 Edw. 6.-15 Jac. C. B. Bawtry v. Isted. i. 270. 24. Quare whether an action will lie on 2 E. 6. for not setting out a predial small tithe. 3 Jac. Scacc. Norton v. Clarke. iii. 1211 25. Though the sum due for treble value be not exactly set out in the declaration it is immaterial, for the plaintiff shall recover according to the verdict, not the declaration.-16 Jac. B. R. Pemberton v. Shelton. i. 297 6. tam pro rege, Luvered v. Owen. i. 368 27. If tithes be leased by deed, debt lies for the rent, but if without deed, assumpsit.-6 Car. B. R. Walrish v. Cropton. i. 373 26. A declaration on 2 E. &c. was held good.-4 Car. 28. Where, on 2 E. 6. the declaration stated that the defendants were occupiers of certain lands, it shall be intended, they were joint occupiers, and not occupiers in common, unless it be shewn on the part of the defendants. 29. No time of taking away was mentioned, which ought to be, for it is the sole cause of action, and not the mere severance itself, as appears from the words of the statute: " and that no person shall, &c." And therefore if the occupier do not carry away the tithes, but suffers them to rot upon the land, the farmer shall have no remedy by this action, but ought to sue in the spiritual court; which was granted; but in this case the time was sufficiently shewn, for the time of cutting them was shewn; and by a conjunction the cutting and carrying united, so that the time of carrying was well shewn, and needed no "then and there."-7 Car. B. R. Cook v. Smyth and another. i. 374 30. An action was brought against one of two lessees (on 2 E. 6.) who did not set out their tithes ; held it did not lie; but being found that one only occupied, therefore the action well laid. Where in a like action against two tenants in common, one set out his tithe and the other carried it away, held that the action was only against him who took it away.-8 Car. C. B. Cole v. Wilkes. i. 377 31. A plaintiff in an action on 2 E. 6. need not state his interest whoever takes the tithe is a trespasser, be he disseisor or servant. So if he cut the tithes, and another carries them away, action lies against either.-15 Car. B. R. Anon. i. 398 32. In debt on 2 E. 6. defendant pleaded a discharge under 31 H. 8. Issue was joined on the discharge, and found against the defendant held that the value should be taken as confessed ; the issue being on a collateral point, and the value not taken by protestation, but neither damages nor costs. 23 Car. B. R. Bowles v. Broadhead. i. 402 : 33. In an action on 2 E. 6. it was held sufficient in the declaration to say, that on such a day he was possessed, and from the same day occupied, and it shall be intended of a rightful estate; and when it is said that he is rector of the church, he shall be intended proprietor of the tithes till the contrary is shewn. 24 Car. B. R. Hobart v. Boraston. i. 404 34. In debt on 2 E. 6. it was held that two churches united by 37 H. 8. c. 21. are both of spiritual promotion.-1649. B. S. Gibbon v. Kent. i. 404 35. Upon a motion in arrest of judgment, on the ground that it did not appear by the declaration on 2 E. 6. in what parish the lands laid. Rolle, C. J. said, that it shall be intended after verdict, that the tithes belonged to the plaintiff as parson of the parish, and were within it, but the declaration would have been bad on demurrer.-1650. B. S. Cane v. Pell. i. 406 36. In an action of debt on 2 E. 6. it was moved in arrest of judgment, that damages were given for 71 acres, whereas only 70 acres were declared for; but the court held it to be but a miscounting of the jury, which would not vitiate.-1651. B. S. Cressit v. Burges. i. 409 37. In debt upon 2 E. 6. a general allegation in the declaration, without shewing a title, is sufficient, although a rector claim tithes out of his own parish. It was not stated that the defendant was subditus domini regis; but the exception on this account was not allowed, for the statement that he was occupator terræ, implies it.-12 Car. 2. Scacc. Phillips v. Kettle. i. 432 38. Although a lease for tithes cannot be good without deed, so as to pass the right, yet a parol agreement by way of retainer, is a good bar to an action on 2 E. 6.-13 Car. 2. B. R. i. 434 39. Debt on 2 E. 6. for not setting out tithes, lies by executors, but not against them. 14 Car 2. B. R. Holl v. Bradford. i. 437 Bernard v. Evans. 40. WINDHAM and KEYLINGE were of opinion that an action on 2 E. 6. for not setting out tithes, did not lie against executors, it being a personal tort of the testator.-16 Car. 2. B. R. Weeks v. Trussell. i. 440 41. In an action on 2 E. 6. the plaintiff need not aver that the defendant had not compounded with the farmer, parson, &c. for the defendant must shew the composition, and it is a sufficient contempt that he has not set out his tithes.-18 Car. 2. B. R. Owen v. Evans. i. 449 42. In debt for subtracting the tithes of seventy loads of peas and beans, without distinguishing how many of each, the court refused to stay judgment.-20 Car. 2. B. R. Townsend v. Clerke. i. 458 43. Debt on 2 E. 6. for pot setting out tithes lies by executors, but not against them; and by Keylinge this is a duty trebled by the statute and not a bare penalty.-21 Car. 2. B. R. Moreton v. Hopkins. i. 480 44. In debt upon 2 E. 6. for not setting out tithes in the parishes of D. and S. the declaration not shewing how much in D. and how much in S. is good, for the action is but in nature of trespass, and to punish the tort in not performing the statute.-23 Car. 2. B. R. Pellow v. Kingsford. i. 494 45. Setting out tithes by the owner who takes them away is not good within 2 E. 6. otherwise taken away by a stranger. 34 Car. 2. B. R. Anon. i. 539 46. If the executor of a parson bring a bill for tithes, he need not offer to accept the single value, he not being entitled by stat. E. 6. to the treble value. 34 Car. 2. Scacc. Anon. i. 540 47. An agreement by parol to retain tithes is good and within the stat. 2 E. 6. though for more than one year.--4 W & M. Scacc. Grove's case. i.575 48. The want of an averment in the declaration, that the defendant had not agreed for his tithes, though bad upon demurrer, is cured by a verdict; for if any agreement were proved at the trial the plaintiff could not recover. 6 W. & M. B. R. Alston v. Bascough. i. 584 49. After great debate, the court of Common Pleas unanimously resolved that the action for not setting out tithes on 2 E. 6. was founded on a tort, and not upon a contract, for not guilty is a good plea to it, and therefore one may be found guilty and the other acquitted, as in other actions upon torts.-7 W. 3. C. B. Bastard v. Hancock. i. 614 50. In an action of debt, on the statute 2 & 3 Edw. 6. for not setting out tithes, the declaration only stating that tithes had been paid for 40 years before the making of that act, but not averring that tithes were payable, |