and of right ought to be paid; and there being no evidence on the trial that tithes had ever been paid; the court held the want of such averment material; and, a verdict having been found for the plaintiff, granted a new trial, and ordered the declaration to be amended.-9 G. 3. C.B. Lord Mansfield v. Clarke... ii. 233 51. Held, in an action on the statute 2 & 3 Edw. 6. for not setting out tithes, that the same, evidence was admissible in this, though an action on a penal statute, as to proof of title, as if it had been in ejectment; but as tithes properly lay in grant, 20 or 30 years possession, unaccompanied by deeds, would be very weak evidence of title..

52. Held also, that in an action on this statute, it was necessary to prove perception of tithes in kind, within 40 years before action brought, analogous to the reasoning of the legislature at the time of making the act, which mentions, that to entitle the plaintiff to the action, the tithe must have been paid within 40 years before the making of that act.-9 G. 3. B. R. Kinaston v. Clarke. ii. 234 53. In an action of debt, on the statute, for not setting out tithes, the evidence preponderated on the part of the plaintiff, but the jury returned a verdict for the defendant. On an application for a new trial, it was objected, that this being a penal action, the verdict ought not to be disturbed, merely as being contrary to evidence, unless prevarication appeared, or it was shewn that the jury had been tampered with. But the court overruled the objection, and granted a new trial.

54. An action on the statute, for not setting out tithes, is almost the only action by which the right can be tried by the common law, and is the most beneficial way for the defendant to try his title.

55. The jury never give the damages in such an action, for they are not directed so to do. 13 G. 3. B. R. Holloway Hewitt. ii. 283 56. In an action of debt for the penalty of the statute 2 & 3 E. 6. c. 13. for not setting out tithes, with a count in the declaration for the single value; after a demurrer to the declaration, the parties submit to arbitration, and the arbitrator awards the single value to be less than 20 nobles (67. 13s. 4d.) The plaintiff is not intitled to costs on the counts for the penalty, under the stat. 8 & 9 W. 3. c. 11. s. 3. the value not having been found by a jury; but the Court will allow him to have the costs taxed, on the count for the single value.-29 G. 3. B. R. Barnard v. Moss. ii. 357

57. In debt on 2 & 3 Edw. 6. c. 13. for not setting out tithes, where the declaration stated that they were, within forty years next before the statute, of right yielded and payable and yielded and paid, evidence that the land had

always been remembered to be in pasture, and had never within living memory paid any tithe, is not sufficient to defeat the action.

58: BULLER, J. said, if indeed it had appeared that this land had been ploughed before, and yet no tithe had been exacted for it, that might have afforded some ground for such a presumption.-33 G. 3. B. R. Mitchell v. Walker. ii. 372

59. If A. execute a lease of tithes to B. on a day subsequent to their severance, but previous to their being carried away by the landholder, B. cannot maintain an action on 2 & 3 E. 6. c. 13. as the right to the tithes vested in A. immediately on severance.

60. Evidence that the parishioners have treated with the proprietor for a composition, is not alone sufficient to establish his possession of the tithes in an action on the statute.

61. Quære, whether if one only of two joint tenants execute an assignment of a lease of tithes, the person claiming under that lease can support an action for not setting them out. 39 G. 3. C. B. Wyburn v. Tuck. ii. 480

62. In debt for subtraction of tithes of any particular article, the plaintiff, though he allege the tithe of that article to have been "granted, yielded, and paid, and of right due and payable," on the land in question forty years next before the making of the stat. of Ed. 6. need not prove that the particular article was cultivated there at that time; but it lies on the defendant to prove that it was not. 46 G. 3. C. B. Halliwell v. Trappes. ii. 552

63. In an action on the statute 2 & 3 Ed. 6. c. 13. for the treble value of tithe-corn, omitted to be set out, it is not enough for the defendant to shew the existence, in fact, of a custom in the parish to set out the 11th instead of the 10th mow, for the validity as well as the existence of such a custom is properly triable in this form of action, though penal in its nature: being given to the party grieved, and his only remedy at common law for subtraction of the tithe due to him.-47 G. 3. B. R. Phillips v. Davies. ii. 554

64. In debt upon the stat. 2 & 3 Ed. 6. c. 13. for not setting out a tenth as the tithe of hay, the plaintiff is entitled to recover upon his common law right, unless there be evidence of some certain good modus, or customary payment in lieu of the common law tithe; and though the plaintiff gave in evidence a terrier of 1696, stating a custom to take the eleventh cock of hay in a certain advanced state of preparation; and though his own and the defendant's witnesses stated other varying modes of payment; yet the terrier not being conclusive, and the jury not finding the eleventh cock of hay renderable or other specific custo mary mode of tithing, the plaintiff is entitled

ley.

ii. 651 66. No action shall be brought for the recovery of any penalty for the not setting out tithes, unless such action shall be brought within six years.-53 Geo. 3. s. 127. iv. 258 67. The statute 2 & 3 Ed. 6. c. 13. is a remedial act, and in an action thereon the court will grant a new trial for a mistake of the jury.-55 Geo. 3. C. B. Lord Selsea v. Powell. iii. 714 68. Where in an action on 2 & 3 Edw. 6. in which the first count was for the treble value of the tithes, and the rest for the single value, a verdict was entered for the plaintiff, on the whole declaration, by consent, subject to the award of an arbitrator, who directed the postea to be endorsed " 30s. treble value of the tithes; damages 1s.; costs 40s.; this was holden to be within the 8th & 9th W. 3., and that the plaintiff was entitled to his costs of suit.-57 Geo. 3. Scacc. Pedley v. Frampton. iii. 794 69. After payment of money into court by a defendant, in an action brought against him on the 2d & 3d Edw. 6. by a farmer of tithes, he cannot object to the plaintiff's title to the tithes; because he has admitted the plaintiff's right generally, and has reduced the cause to a mere question of the amount of the damages. -57 Geo. 3. Scacc. Broadhurst v. Baldwin. iii. 806 70. Semble.-A lessee and farmer of tithes declaring as owner and proprietor, is bad.—58 Geo. 3. Scacc. Stevens v. Aldridge. iii. 879 71. A layman, lessee of the tithes of certain closes, which the rector lets by auction in separate lots every year, shews a sufficient title to enable him to recover on the stat. 2 & 3 Edw. 6. for not setting out the tithes, if he prove that payment for tithes was made to him, in a former year. Per Dallas, C. J. at Nisi Prius.-59 Geo. 3. N. P. Ganson v. Wells. iii. 923 72. Where the jury in an action of debt on 2 & 3 Edw. 6. c. 13. which gives treble value for not setting out tithes, found damages which amounted only to the single value; held that the court could not amend the postea, by entering the verdict for the treble value.-1820. Sandford v. Porter. iii. 1391*

75. The plaintiff has his option to issue a writ of inquiry or not, in an action of debt, founded on the statute 2 & 3 Ed. 6. c. 13. brought to recover the treble value of tithes ; and where, in such an action, the declaration contained a count for treble value, and other counts for tithes bargained and sold, and on an account stated; and the defendant suffered judgment by default, and the jury on a writ of inquiry assessed the plaintiff's damages at 177. 4s. 9d. on the first count, for the treble value, and 97. for the single value on the other counts, but omitted to find costs, the court ordered the return of the inquisition to be amended, by the insertion of nominal damages as to the last counts, on which costs de incremento might be added: and it seems, that the statute 8 & 9 W. 3. c. 11. s. 3. which gives the plaintiff his costs in all actions of debt for not setting forth tithes, where the damage found by the jury should not exceed twenty nobles, is confined to cases where a plaintiff obtains judgment after plea pleaded, or demurrer joined, and does not apply to a case where a defendant suffers judgment by default.-3 & 4 Geo. 4. C. B. Bale v. Hodgetts. iii. 1089

76. In an action by a vicar, for not setting out prædial tithes, proof of a single payment to him, or any of his predecessors, of that species of tithe, is evidence to go to the jury, that the vicars of that place are endowed with that species of tithe.-5 Geo. 4. N. P. Apperley v. Gill. iii. 1131

DISCHARGE.-See AGREEMENT-BULLS

CISTERTIANS-CUSTOM-MILLS-TARES-
UNITY.

1. By CHOKE, a man may not prescribe in non decimando, but in modo decimandi he may well prescribe. The serjeants said that the spiritual court would not accept any plea in discharge of tithes.-8 Edw. 4. Scacc. i. 44 2. No tithe shall be paid for any manors, lands, tenements, or hereditaments, which by the laws or statutes of this realm are discharged, or not chargeable with the payment of tithes. 32 Hen. 8. c. 7. § 5. iv. 51

3. Such lands as before the dissolution were discharged of tithes shall so continue.-31 H. 8. c. 13. § 21. iv. 48 4. No person shall be sued, or otherwise compelled to yield, give or pay any manner of tithes, for any manors, lands, tenements or bereditaments, which by the laws and statutes of this realm, or by any privilege or prescription, are not chargeable with the payment of any such tithes, or that be discharged by any composition real.-2 & 3 Edw. 6. c. 13. s. 4. iv. 87

5. Where a parson sued for tithes of hay and corn out of the demesnes of a manor which had formerly belonged to the abbot of Peterborough, whose farmers by lease or at will being lay persons, for time immemorial before and at the dissolution of the abbey (31 H. 8.) had paid no such tithes, but only of wool, and lambs, &c. it was held that a prohibition upon the 31 H. 8. c. 13. s. 21. by virtue of the word discharged would lie.-18 El. The parson of Peykirke's case. i. 66

6. Sequestration to set out tithes, where the dispute is to whom they belong, may be; but where lands are claimed to be discharged, such a thing was never seen, and if the tenant were to agree thereto, he would admit the lands to be titheable.-24 El. Scace. Mayne v. Becke.

i. 82

7. Unity of possession by a religious person of a manor and parsonage is no discharge for the copyholders without a prescription; and a prohibition shall not be granted in such case where no prescription is alleged in the surmise to be discharged of tithes.

8. If an abbot or prior were seised of land discharged of tithes, the new farmer of that land shall be admitted to prescribe in a non decimando by the stat. 2 E. 6. which wills that no one shall pay tithes, otherwise than they were paid forty years before; but in no other case shall a man prescribe in non decimando, but only in modo decimandi.-27 & 28 El. C. B. Branche's case. i. 89

10. It was said by BURLEIGH, lord treasurer, that if the composition or custom was that the abbot and his successors should be discharged, without extending to farmers or lessees, if the abbot made a lease, and the lessee paid tithes as he ought; and after the reversion cometh to the king, the lessee should pay tithes during his lease, but after the lease determined, the king and his patentee should not pay, but should be discharged by the said statute.-30 El. Scacc. Prowse's case. i. 95

11. The Cistertians were privileged to pay no tithes for lands quas propriis manibus, &c. by the 31 H. 8. the queen and her farmers should be discharged, as the spiritual persons were; but as the queen cannot excolere, ergo her farmers shall be discharged; and so long as the queen has the freehold, her farmers for years, or at will, shall be discharged. But if the queen sell the land or the reversion to another, then the farmers shall pay tithes.32 El. Scacc. Countess of Lennox's case.

i. 99

12. Lands held by a bishop and his predecessors, by prescription, discharged of tithes, though severed from the bishopric for a time, shall, upon a regrant to the bishop and his successors, be again discharged.-32 El. B. R. Wickham, Bp. of Lincoln v. Cowper. i. 100

13. Issue was joined to try whether certain lands had been held by a prior and his predecessors time out of mind, before and at the dissolution discharged of tithes; it appeared by the evidence of old persons who were produced, and remembered the time of the monasteries, that no tithes were paid for the lands then or from thence; but no cause of discharge was

shewn, whether by unity, real composition, or any other way, which was excepted to; it was held, that a spiritual man might prescribe in non decimando, and that it was well enough, although the special matter of discharge did not appear, for the court ought to take it that it was by lawful means, for the stat. 31 H. 8. is, that the King shall hold discharged as the abbot, &c. and if he held it discharged, non refert by what means, for it shall be intended a lawful discharge of tithes tempore dissolutionis.-33 El. B. R. Nash v. Mollins. i. 100

14. It is not a good modus, that he ought to be discharged of tithes, in consideration that he has used, time out of memory, &c. to employ the whole profits of the land in the reparation of the body of the church, and to find all necessaries for the church, for this is not a recompense to the parson; but it is a good modus to be discharged because he has used, &c. to employ the profits for the reparation of the chancel, for the parson has a benefit by this.-37 El. C. B. Longley v. Meredine. 1 Ro. Abr. 649 15. If land had come to the King by the stat. 31 H. 8. then by force of the branch of discharge of the payment of tithes, a general allegation that the prior, &c. held the land at the time of the dissolution of the said priory discharged of the payment of tithes, without shewing how, had been sufficient, and so is the common use.-38 El. B. R. Green v. Balser, or the Archbishop of Canterbury's case, i. 113 16. Spiritual persons might and may prescribe to hold their lands for themselves, their tenants and farmers, for years or at will, discharged of tithes.-38 El. B. R. Wright v. Wright, or the Bishop of Winchester's case.

i. 119 17. If a discharge be pleaded generally by prescription, and not by reason of unity; then the prescription ought to be answered, and not the unity.-40 El. B. R. Button v. Long. i. 139

18. A custom that all the parsons of a parish had held and enjoyed certain land parcel of a manor, in recompense of all tithe wood within the parish was held good; for it may be, that at the beginning, all the land within the parish was parcel of the manor, and that then this allowance of the profits of this land was allotted in discharge of tithes of all the wood within the same parish; and, that at the first, it was all the land of the allotter.-40 El. B. R. Somerton v. Cotton. i. 141

19. Copyholders of inheritance of a spiritual person may prescribe under him in non decimando, for in consequence thereof it is to be presumed that the lord had the greater fines and rents.-42 El. B. R. Pigot v. Sympson.

i. 148

20. Libel for tithes of rough hay growing in the marshes and fenny lands of Mildenhall; for prohibition, it was alleged, that because the parishioners had not sufficient grass within the parish to sustain their beasts in winter they used to gather this hay called fenny fodder, for the sustenance of their beasts, for the better increase of their husbandry; and for this cause had always been freed from the payment of tithes for it; upon demurrer it was held insufficient, for so they might prescribe for corn spent in their family, or for corn given for provender to their cattle.-2 Jac. B. R. Webb v. Warner. i. 158

21. If a man prescribe to be discharged of payment of tithes by reason of payment of another kind of tithe, it is not good.--4 Jac. Scacc. Skelton v. Lady Airie. i. 167

22. If a bishop hold land discharged of tithes, and sell it, the purchaser shall be discharged; and so if the king grant forest lands which he had discharged; and it is a general rule that he who may have tithes may be discharged of them.-6 Jac. Anon. i. 174

23. One may be discharged from the payment of tithes five manners of ways: 1. By the law of the realm, that is, the common law; as tithes shall not be paid of coals, quarries, bricks, tiles, &c. F. N. B. 53. and Reg. 54. nor of the afterpasture of a meadow, &c. nor of rakings, nor of wood to make pales, or mounds, or hedges, &c. 2. By the statutes of the realm, as by 31 H. 8. c. 13, the stat. 45 Edw. 3. &c. 3. By privilege, as those of St. John of Jerusalem, in England, the Cistertians, Templars, &c. as appears by 10 H. 7. Dy. 277. 4. By prescription, as by modus decimandi, or an annual recompense in satisfaction of them. 5. By real composition, as where two acres of meadow have been given in lieu of tithes of hay of certain land, which is good.-6 Jac. C. B. The case of Modus Decimandi. i. 177

24. A custom was alleged in a town, that every inhabitant who maintained a family and dairy for manuring his land and maintenance of his family, bad used, from time, whereof, &c.

to

pay tithes of corn and hay growing upon his farm, in kind, and by reason thereof had been used to be discharged of tithes of the aftercrop of the same land, and to pay tithes of milk and calves in kind, and by reason thereof had been discharged of tithe of young and barren beasts. And held good upon solemn argument by all the judges.-9 Jac. C. B. Baxter v. Hope. i. 200

25. Quære, whether a country may prescribe in non decimando if the incumbent have sufficient support beside.-12 Jac. B. R. Porter v. Tike. i. 224

26. If a man gather green pease to eat in his house no tithes shall be paid of them, and this

by the law of the land; but it is otherwise if he gather them to sell or feed hogs.-12 Jac. B. R. 1 Ro. Abr. 647.

case.

27. The bishop of Hereford was sued for tithes of parcel of the demesnes of his bishopric, and a prohibition was granted on the suggestion of a discharge, for which, according to Wright's case, a spiritual person may prescribe. -13 Jac. B. R. The Bishop of Hereford's i. 251 28. Discharge of tithes of the lands of monasteries by prescription was not personal; for having been always (as prescription presumes) in spiritual hands, the law judges that they were never charged with tithes; as the pleading is that the lands were immunes à solutione decimarum negativè non privativè, viz. uncharged, not discharged, as if they had been once chargeable. The reason whereof was, that being spiritual persons they were able to minister to themselves spiritual rights, and therefore performing officium, they might retain beneficium; and this non-charge standing upon prescription was inherent in the land, not as a thing given, but a non ens.

29. Lands that never yielded tithe, and land of the little monasteries so free of tithes, the king, by 27 H. 8. and his patentees were to hold free, not by reason of any privilege which needed to be preserved by any statute, but ever by the grant of the land by any kind of conveyance.-15 Jac. C. B. Wright v. Gerrard and Hildersham. i. 289 30. An abbot discharged of tithes quamdiu propriis manibus, &c. temp. E. 4. made a gift in tail of the land, the abbey was dissolved 31 H. 8. held the issue of the donee should not be discharged under that statute, but if the reversion had returned to the abbot or king before or after the statute, it had been otherwise.-16 Jac. C. B. Farmer v. Sherman.

i. 303

31. A particular liberty cannot prescribe in non decimando.-17 Jac. B. R. Johnson v. Bois. iii. 1210

32. If land of a monastery within 31 H. 8. were discharged in the hands of the prior, &c. constant payment ever since the statute does not make it chargeable.-17 Jac. B. R. The Earl of Clanrickard v. Lady Denton. i. 306

33. MONTAGUE, C. J. said it was a position in the time of king John, that one ecclesiastical man ought not to pay tithes to another ecclesiastic.-18 Jac. B. R. Sir Edward Coke's case.

i. 314

34. In a declaration on a probibition, the question was, whether it were sufficient for the patentee of lands of a greater monastery (but founded within time of memory, and therefore not capable of a discharge by prescription, nor consequently by unity) to allege that the abbot held the lands discharged of tithes

at the time of the dissolution, without shewing how.

35. If a temporal man succeed a spiritual body in discharge, as upon 31 H. 8. it is to be reckoned in a spiritual person or body, not temporal.

36. Laymen may be discharged of tithes in kind by paying compositions for them in money: so land held or enjoyed by parsons or vicars in lieu of them, by grant of the parson, patron, and ordinary.

37. Discharge in abbots must now be proved à posteriori, for no man living can now speak to the time of the abbots, &c.-18 Jac. C. B. Slade v. Drake. i. 314

38. The pope by his bull might discharge abbots, &c. from payment of tithes, while in their own hands, and although when leased, it should pay tithes, yet upon its expiration the privilege would revive to the patentee.21 Jac. B. R. Stonehouse v. Read. i. 326 39. A dean and chapter are a spiritual body who may prescribe in non decimando for them and their tenants.-21 Jac. C. B. Brig's case. i. 326

40. Two questions were made:

1st. Whether lands of the order of Præmonstratenses were discharged quamdiu propriis manibus aut sumptibus excolebantur.

2d. Whether it were sufficient in pleading such discharge, for the patentee to say that habuit et habet in proprid manu, without alleg ing that propriis sumptibus excolebat.—22 Jac. B. R. Dickinson v. Greenhall. i. 332

41. Fish in a pond, conies, deer, are discharged of tithes de jure. Quare if pigeons also.-5 Car. C. B. Flower v. Vaughan. i. 370

42. Copper mills, fulling mills, shaving mills, glass houses, &c. shall pay no tithes.5 Car. C. B. Anon. i. 370

43. Lime is not titheable but by custom.7 Car. C. B. Rooket v. Gomershall. i. 375 44. A prohibition was granted upon suggestion that the land belonged to a Cistertian abbey before the council of Lateran, 15 John, and had always been enjoyed discharged.9 Car. B. R. Anon, i. 381

45. It was held by Croke, J. that the clause in the 31 H. 8. " that the king and his patentees of any monasteries, &c. should hold and enjoy them discharged of payment of tithes as the late abbot held them;" extended as well to abbeys that came to the king by 27 H. 8. as the superior abbeys, and he said that no question had been made in those times, or in sixty years after the making of the statute; but the court resolved, 1st, that an abbot or ecclesiastical person might prescribe in non decimando: but when the corporation is dissolved, or when the corporation grants the land to a layman, such layman shall not have the benefit