1596.

Wright

บ.

Wright.

resolved for good law. 1. That in such special case, a lay person, owner of the said manor, shall sue for the tithes upon the special matter aforesaid in the spiritual court, for it shall be intended at the beginning the lord was seised of the whole manor before the tenancies were derived thereout, and then by composition or other lawful means, the lord should have all the tithes within the manor for the said pension paid to the parson; and the law intendeth, that at the beginning it was for the maintenance of divine service, and pro bono ecclesia, the reason of which intendment is the continual usage, a tempore cujus, &c. It was resolved, that upon this special matter alleged, a man may have tithes as appurtenant to a manor; for he prescribeth by a que estate in the manor, and therefore cannot have them in gross. But it was adjudged in Winch- Supra 164. comb's case, in this court, in a prohibition Hill. 35 Eliz. that a man cannot prescribe generally in him and all those whose estate he hath in such manor, to have any tithes appertaining to the same; for without such special matter shewed, tithes which are spiritual things, and due jure divino, for the subtraction of which, remedy lieth only in the spiritural court, and no remedy at the common law, cannot be parcel or appurtenant to a manor, or any other temporal inheritance.

Tr. 38 Eliz. A. D. 1596.

[189]

drained or

grubbed, shall pay

tithes pre

sently.

S. C. S. P.

Sherington v. Fleetwood. [Cro. Eliz. 475.] PROHIBITION for tithes. Popham said, If land be overflown Land with water, and afterwards gained by industry, tithes shall presently be paid thereof, although it had been overflown time whereof, &c. (a) So, if land be full of thorns and bushes, from time whereof, &c., and it be grubbed up and made meadow, or arable Moore 909. land, tithes shall be presently paid thereof, notwithstanding the statute 2 Ed. 6. For those lands of their own nature were not barren, but by negligence, or ill husbandry became so. And the statute doth not intend that tithes shall not be paid within seven years after the manurance, &c. but of such land as was merely barren, and made good by foldage, or other industrious means. And this was agreed by the other justices. (b) He also said, That it hath been here adjudged, that tithes shall not be paid for rakings, unless they be foul rakings. The prescription also was, That he used to pay 1d. for every milch cow, in satisfaction for the tithe of milch kine and beasts agisted, which was moved not to be a good prescription: for tithes for one thing cannot be tithes for another.

Tithes shall not be paid

but for foul

rakings. Moore 909. Goldsb.

147.

s. c. s. P.

(a) See Anon. ante, p. 166, and Pelles v. Saun- Hutchins v. Maughan, post. 1197. Jones v. Le derson, ante p. 138. n. Stockwell v Terry, 823, David, post. 1338. Byron v Lamb, post. 1594. post. Gawden v. Gilbert, 1 Wood, 89. Alcock v. Warwick v. Collins, 2 M. & S. 349. post. vol. 2. Halyard, ibid. 279. Lord Selsea v. Powell, 6 Taunt. 297, vol. 2. post. 4) Stockwell v. Terry, 1 Ves. 115. post. 823. Kingmill v. Bellingsley, 3 Pri. 465, vol. 2. post.

1596.

Sherrington

V.

Fleetwood.

No tithes

for dry cattle reared for the

plough or house.

But, if he had prescribed, that he had paid 1d. for all cows and beasts agisted, that peradventure had been good: and this diversity was so ruled in the case of Dr. Lewes; and of that opinion were the court here. Then Godfrey moved, that no tithes by the law are payable for beasts agisted, and so is Nat. Br. 53. But all the court held, that for beasts agisted for hire, or for dry cattle which are depastured to be sold, tithes shall be paid: but for dry cattle reared for the plough, or to be expended in the house, no tithes shall be paid. Sed adjournatur. (a)

The Archbishop of Canterbury's Case. [2 Co. 46.]

In a prohibition in the Queen's Bench, between Green and Balser, the case was as follows: there was a religious college in Maidstone, [190] to which the rectory of Maidstone was impropriate; and the college

had divers lands and tenements within the said parish of Maidstone, and all was given to the king by the statute of 1 E. 6. Afterwards the rectory was conveyed to the bishop of Canterbury, and the lands, parcel of the possession of the said college, were conveyed to the lord Cobham; and now the farmer of the lord Cobham brought a prohibition against Balser, farmer of the said rectory under Whitgift, archbishop of Canterbury, and alleged the branch of the statute of 31 H. 8. concerning discharge of tithes, and shewed, that the master of the said college was seised of the said lands, and of the said rectory, simul et semel, as well at the time of the making of the act of 31 H. 8. as of the making of the said act of 1 E. 6. and held them discharged of tithes; and shewed the said act of 1 E. 6. by which the said college was given to king E. 6. ; whereupon the defendant demurred in law. And in this case divers questions were moved.

1. Whether the said college came to the king as well by the statute of 31 H. 8. as by the statute of 1 E. 6. for if this college came to the king by the statute of 31 H. 8. then without question the said branch of the said act concerning discharge of tithes, extends to it; and it was objected by the plaintiff's counsel, that the words of the said act are general, sc. That all monasteries, &c. colleges, &c. which hereafter shall happen to be dissolved, &c. or by any other means come to the king's highness, &c. shall be vested, deemed, and judged by authority of this parliament in the very actual and real

(a) On the last point, see Roll. Abr. p. 647. pl. 10. Hele v. Bragg, post p. 861, Ibid. Robinson v. Tunstall, n.; Underwood v. Gibbon,

post p. 1582. Bun. 3. contra, Williamson v. Lord Lonsdale, 5 Pri. 25, vol. ii. post.

Green

possession of the king, &c. And when this college came to the king 1596. by the statute of 1 E. 6. it came to the king within these words of the act (by any means). But it was answered by the defendant's counsel, and resolved by the court, that that could not be, for several reasons.

V.

Balser;

or,

Archbishop of Canterbury's Case.

1. When the statute speaks of dissolution, renouncing, relinquishing, forfeiture, giving up, &c. which are inferior means, by which such religious houses came to the king, then the said latter words (or by any other means) cannot be intended of an act of parliament; which is the highest manner of conveyance that can be; and therefore the makers of the act would have put that in the beginning, and not in the end, after other inferior conveyances, if they had intended to extend the act thereunto. But these words (by any other means) are to be so expounded, scil. by any other such inferior means. As it hath been adjudged, that bishops are not included within the statute of 13 Eliz. cap. 10. for the statute beginneth with colleges, deans and chapters, parsons, vicars, and concludes with these words, and others having spiritual promotions; [191] these latter words do not include bishops, causa qua supra. So the statute of West, 2. cap. 41. the words of which are, statuit rex, quod si abbates, priores, custodes hospital' et aliarum domorum religiosarum, &c.; these latter words do not include bishops, as it is holden 1 & 2 Phil, & Mar. Dyer 109. for the cause aforesaid.

2. The said clause of 31 H. 8. enacts, that the said religious houses shall be in the king by authority of the same act; and the statute of 1 E. 6, enacts, that all colleges, &c. shall be by authority of this parliament adjudged and deemed in the actual and real possession of the king; so that the latter parliament being of as high a nature as the first was, and providing by express words that the colleges shall be, by authority of the said act, in the actual possession of the king, the said college cannot come to the king by the act of 31 H. 8. It is said in 29 H. 8. parliament et statutes, Br. 73. if lands be given to tenant in tail in fee, his issue cannot be remitted, for the latter act takes away the statute de donis, &c. 3. The usual form of pleading such possessions as came to the king by the statute of 1 E. 6. and by the act of 31 H. 8. doth manifest the law clearly, scil. to plead surrender or relinquishment, &c. virtute cujus ac vigore of the statute of 31 H. 8. the king was seised; but to plead the act of 1 E. 6. of chauntries, virtute cujus ac vigore of the statute of 31. H. 8. was never heard or seen. And for all these causes it was resolved, that this college came to the king by the act of 1 E. 6. and not by the act of 31 H. 8.

The 2d question was, forasmuch as the said college came to the king by the act of 1 E. 6. and not by the act of 31 H. 8. Whether the said branch of discharge of tithes extends to such colleges as

A college given to the

crown by the statute

1596.

Green

V.

Balser;

or,

of 1 E. 6.

is not en

titled to an exemption from tithes

under the 31 H. 8.

came to the king by any other act and not by the act of 31 H. 8. And it was objected, that the said branch should extend to colleges which came to the king by any other act: for it was said, that although the preamble of the said branch saith, the late monasArchbishop teries, &c. yet this is not literally to be understood of monasteries of Canterbury's Case. only which were dissolved before the act, for (late) is to be construed according to the body of the act, sc. of those which were dissolved before, or which should come to the king afterwards by the said act; so that when they are dissolved, and in the king by force of this act, this act may call them (late) quod fuit concessum per curiam. Also, they said, that the words of the branch itself are general, scil. any monasteries, &c. colleges, &c. without any limitation; so that they conceived, that the words of the said branch [192] made for them, and that this clause of discharge should extend to all monasteries, &c. colleges, &c. quæcunque, by what means soever they came to the king; and they said, that the intent of the act was so, for the intent of the act was to benefit the king and to make the subject more desirous of purshasing them, &c. Against which it was said by the defendant's counsel, and resolved by the court, that neither the words, nor the meaning of the said branch, did extend to any monasteries, &c. but to those only, which came to the king by the act of 31 H. 8. for it would be absurd, that the branch of the act of 31 H. 8. should extend to a future act of parliament, which the makers of the act of 31 H. 8. without the spirit of prophecy, could have no foreknowledge of; but this clause of discharge of tithes, shall extend only to those possessions which came to the king by the same act. And where it was said, that the first words of the branch were general, the same is true; but the conclusion of that branch is in as large and ample manner as the late abbots, &c. So that (late) being so intended, as it hath been agreed on the other side, scil. only of religious houses which came to the king by 31 H. 8. it is clear, that that branch cannot extend to this college, which came to the king by the act of 1 E. 6.

Qu. As to

allegation of unity of possession.

The 3d question was, admitting that the said college had comé to the king by the statute of 31 H. 8. whether such general allegation of unity of possession of the rectory, and of the lands in it, was sufficient. And it was resolved by the court, that it was not sufficient; for no unity of possession shall be sufficient within the same act, but a lawful and perpetual unity of possession, time out of mind, as it was adjudged M. 34 and 35 Eliz. in a prohibition between Valentine Knightly, esquire, plaintiff, and William Spenser, esquire, defendant, where the case was as follows: the plaintiff in the prohibition shewed, that Philip Abbot, of Evesham, and all his predecessors, time out of mind, were seized as well of the rectory

1596.

Green

V.

Balser; or,

bury's Case.

impropriate of Badby cum Newnam, in the county of Northampton, as of the manor of Badby cum Newnam, in Badby aforesaid, in his demesne as of fee, in the right of his monastery, simul & semel, until the suppression of the same monastery; quodque ratione inde, the said abbot, and all his predecessors, until the dissolution of the Archbishop of Cantersame monastery had holden the said manor discharged from the payment of tithes, until the dissolution of the same house, and shewed the branch of the statute of 31 H. 8 concerning discharge from the payment of tithes, and conveyed the said manor to Knightly, and the said rectory to Spencer, who libelled in the spi- [193] ritual court for tithes of the demesnes of the said manor, against Knightly, who, upon the matter aforesaid, brought the prohibition; and it was adjudged, that the prohibition was maintainable; for the said branch of the act of 31 H. 8. was made to prevent two mischiefs; one, that otherwise all the impropriations of rectories to houses of religion had been disappropriate; for if the body to which the rectory is appropriated had been dissolved, the impropriation to such body had been dissolved also, as appears by .3 E.3. 21 E. 14. 1. a. 21 H. 7. 4. b. F. N. B. 33. k. l. Another mischief was, that whereas many religious persons were discharged from the payment of tithes; some by their order, as the Cistercians, Templars, Hospitallers of St. John's of Jerusalem, as appears by 10 Eliz. Dyer 277; some by prescription, some by composition, some by the pope's bulls, &c.; and the greater part of religious houses, as the said abbey of Evesham was, were founded before the council of Lateran, and before time of memory; it would be infinite, and in a manner impossible by any search to find all the discharges and immunities which such religious houses had; and therefore also the said branch was made. And the great doubt in the said case was conceived upon this word (discharge); for it was said, that unity of possession was not any discharge of tithes, and by consequence was not such discharge as was within the intent of the said act. And for the force of this word (discharge) 18 E.3. Bar. 247. 35 H. 6. 10 b. 22 E. 4. 40. b. and 6 H. 7. 10. b. were cited. But as to that, it was resolved by the court:

1. That the statute doth not say discharge of tithes, but discharge of payment of tithes.

2. The statute doth not say, discharge of payment of tithes, absolutely, but as freely as the abbot, &c. held it at the day of dissolution; and then this word (discharge) being referred to a certain time, may be intended of a suspension by unity. As, if a man seised of a rent disseises the tenant of the land, and makes a feoffment with warranty, the feoffee shall vouch as of land discharged of the rent, and yet the rent was but suspended; but every suspension is a discharge for a time, and the discharge being referred to