1596.

Green

V.

Balser;

or,

the time of the warranty, extends to the suspension. Quod vide 30 E. 3. 30. 3 H. 7. 4. a. 21 H. 7. 9 a. b. F. N. B. 135. e.

3. The statute saith, as freely as the abbot, &c. retained the same. And it was said, that it was the intent of the king, and of the Archbishop makers of the act, to discharge the land of payment of tithes in such* of Canter- case of unity of possession, being a general case, to induce purchasers [194] the rather to purchase the land for greater prices.

bury's Case.

4. For the infinite impossibility, and the impossible infiniteness, as hath been said, all the discharges which such religious houses had, could not be known; and the same construction was made in this court, Hil. 24 Eliz. in a prohibition between John Rose, and William Gurling, for tithes in Flixton, in the county of Suffolk. Supra 136. See 18 Eliz. Dyer 349. the parson of Peykirk's case. And it was likewise resolved in the said case of Knightly, that nothing could be traversed but the unity, for ratione inde, &c. is but the conclusion and the judgement of the law upon the precedent matter; but it was also resolved, that if before the dissolution the farmers of the demesnes had paid tithes, &c. to the abbot, &c. then the intendment of the law by the reason of the said unity of possession (which ought to be time out of mind) that the land was discharged of the payment of tithes, will not hold place. For as Bracton saith, Stabitur presumptioni donec probetur in contrarium. But, if the lands were always occupied by the abbots, or demised over, and no tithes at any time paid for the same before the act, although the land be conveyed to one, and the rectory to another, yet the land is discharged of the payment of tithes: and if the farmers of the demesnes had paid tithes before the act, the same should be pleaded by the defendant in the prohibition, and issue thereupon might be taken, as it was in the like case, Trin. 38 Eliz. in this court, between Edward Grevil, esquire, possessor of the demesnes of the manor of Nasing, in the county of Essex, plaintiff, and Martin Trot, proprietor of the rectory of Nasing, defendant; where, against such unity of possession in manner and form aforesaid, alleged by the plaintiff in the abbot of Waltham, and his predecessors, &c. in the rectory and demesnes, and with like conclusion as aforesaid, the defendant alleged payment of tithes by the farmers of the said demesnes, (without any traverse by the rule of the court), and issue was joined thereupon, and it was tried against Trot, and therefore the prohibition stood. And it was likewise resolved, That although the plaintiff in the case at bar alleged, that the master of the said college, at the time of the making of the said act of 1 E. 6. held them discharged of tithes ; and although the lands of such religious persons may be discharged of tithes by prescription, as it hath been late adjudged in the case of

Infra 208.

one Wright in this court, or by composition, &c. yet such general allegation that he was discharged of tithes, was not sufficient, without shewing how he was discharged, either by prescription, composition, or other lawful means. But, if the land had come to the king by the statute of 31 H. 8. then, by force of the said branch of discharge of the payment of tithes, such general allegation, that such 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 in prohibitions.

The fourth question in the case at bar was, whether any house which was ecclesiastical, and not religious, as bishops, deans and chapters, archdeacons, and the like, shall be within the act of 31 H. 8. for no house within the act of 31 H. 8. is said religious, but such as was regular, and consisted of such persons as had professed themselves, and vowed three things, that is to say, obedience, voluntary poverty, and perpetual chastity; and those are called in our law, dead persons in law. For after such profession their heirs shall have their lands, and their executors or administrators their goods, and that was called mors civilis: 'which was the reason that when a lease for life was made, the habendum always was, To have and to hold to him durante vita sua naturali; for it was then taken, that if the habendum had been durante vita sua (without saying naturali) the civil death, that is to say, the entry into religion had determined it. But it was resolved by the court, that no ecclesiastical house, if it be not religious, is within the act of 31 H. 8. for divers reasons.

1. The words of the act are always through the whole act in the copulative, religious and ecclesiastical; so that if it be ecclesiastical only, it is out of the act.

2. The makers of the act gave the king as well those religious and ecclesiastical houses which were dissolved, &c. as those which should be afterwards dissolved; but none were dissolved before the act, but only religious houses, and no house ecclesiastical only; for no bishopric, deanery, archdeaconry, &c. or such like ecclesiastical and secular corporation, was dissolved before; therefore no ecclesiastical house which was not religious (which after the act shall be dissolved) was within the intent and meaning of the said act.

Thirdly, It is enacted by the statute of 31 H. 8. that all religious and ecclesiastical houses, which after shall be dissolved, &c. shall be in the actual possession of the king, in the same state and condition as they were at the time of the making of the said act, upon which clause of the statute it was adjudged, Pasch. 5 Eliz. [196 ] Rot. 1029. (a) reported by serjeant Bendloes, and Mic. 6 and 7 Eliz. («) p. 132.

Green

V.

Balser;

or,

bury's Case.

Dyer 231. and Plow. Comm. 207, (a) that if an abbot after the said act grants the next avoidance of an advowson, or makes a lease for years, and afterwards surrenders, so that by the act, the possessions of the abbey ought to be in the king, in the same state Archbishop and condition as they were at the time of the making of the act; of Canterand at the time of making the act the land and the advowson were discharged of all interests, for this reason it was adjudged in both cases, that the lease and the grant were void by the said act. But, if a dean and chapter, and other such ecclesiastical and secular corporations should be within the said act, then, if they should surrender their possessions, they would avoid all their own grants and leases, which would be dangerous. And that was one principal reason that the colleges, chanteries, &c. which came to the king by the act of 37 H. 8. or 1 E. 6. should not vest in the king by the act of 31 H. 8. for the mischief before, for avoiding their leases, grants, &c. And to conclude this point, it was held in the common pleas in Parret's case, concerning the priory of Frideswide, that if the house be not religious and regular, it is not within the act of 31 H. 8.

And as to the opinion of 10 Eliz. Dyer 280. Corbet's case, concerning the priory of Norwich, it seems that that differs much from other deans and chapters, for the dean and chapter of Norwich were once religious, for they were prior and convent before; and yet that case was denied by Popham, chief justice, and some other of the judges, for the reasons and causes aforesaid.

Fifthly, It was holden by the court, that although it is provided by the statute of 1 E. 6. that the king shall have the lands of the colleges, &c. in as ample and large manner as the said priests, wardens, &c. had or enjoyed the same, that these general words should not discharge the land of any tithes, for they are not issuing out of land, but are things distinct from the land. For as the book is in 42 E. 3. 13.a. the prior shall have tithes of land against his own feoffment of the same land; and it is no good cause of prohibition to allege unity of possession in a college which came to the king by the statute of 1 E. 6. as a man may by the statute of 31 H. 8. in an abbot, prior, &c. as is aforesaid; for the statute of 1 E. 6. hath no such clause of discharge of payment of tithes, as the statute of 31 H. 8. hath. And therefore such perpetual unity, as hath been said before, will not serve upon this act of [197] 1 E. 6. And afterwards a consultation was granted: and another consultation was granted the same term in another prohibition sued upon the same matter, between Green and Buffken. (b) And Law

(a) Stradling v. Morgan.

by Moore, under the name of Green v. Bosekin, (6) This case of Green v. Buffken is reported which report, as it materially differs in some part

rence, Tanfield, and others, were of counsel with the plaintiff, and the attorney-general and others with the defendant.

[Cro. Eliz. 578.]

1596.

A vicar under an en

dowment of

parish, is

tithes of the

Cro. Eliz.

Moore 457.

M. 39 & 40 Eliz. A. D. 1597. B. R. Blincoe v. Barksdale, Vicar of Marston. PROHIBITION: upon demurrer the case was as follows.. A parsonage was appropriated in the time of king Hen. 3. to a priory, and at the same time a vicarage was endowed in these words: all small salva vicaria, quæ consistit in alteragio, et in minutis decimis totius tithes of the parochia prædictæ ad ecclesiam prædictam spectante. Et ulterius, not entitled si contigerit ipsos monachos in propriis usibus instauramenta habere, to the small infra parochiam prædictam; quod tunc ipsi a præstatione decimarum parson's glebe. omnino immunes essent. At the time of which appropriation, there were six yard lands of the parsonage's glebe within the same parish; 479. which parsonage came by the statute of 31 H. 8. at the dissolution, 910. S. C. (being then in the prior's hands discharged de minutis decimis,) to, the said king in the same manner: and the king granted those, six yard lands to the plaintiff's ancestor in fee, from whom, they de-, [198] scended to the plaintiff. And for the small tithes of those six yard lands the vicar sued, and the plaintiff brought the prohibition containing all this matter. And it was thereupon demurred. And, on, the plaintiff's part it was argued, that by this endowment of the vicarage no tithes shall be paid unto him of the glebe of the parsonage, quamvis dotatio sit de minutis decimis totius parochia; and this land is parcel of the said parish: for, at the time of the endowment, this land was not tithable. And the very point was adjudged in this court 32 Eliz. betwixt Yong and Core; that no tithes should be paid for glebe land. Coke, attorney general,

e contra; for the endowment is de minutis decimis totius parochiæ; and this land is within the parish, and therefore tithes shall be paid,

from what my lord Coke has here stated as the unanimous resolution of the court, I have thought it proper to subjoin. After stating the case, Moore says, "Three points were conceived by the justices. 1. If the colleges should be now said to be given to the crown by 31 H. 8. or 1 E. 6. And all the justices were clear in opinion that the king has them by 1 E. 6. because that is the last statute, though there be no negative words in it (that is) that he should have them by that statute, and no other. The second was, if the king shall have the lands by 1 E. 6. and be discharged of tithes by 31 H. 8.. so that he shall take the tithes by the first statute, and the lands by the last, because the last does not give the tithes, though it has words that the king should have the lands in as ample manner and form as the colleges; which words do not extend to tithes, but only to the es

tate in the land. And of this the justices doubted. It seemed to Popham and Fenner, that by the statute of 31 H. 8. he should hold the land discharged which he had by 1 E. 6. Gawdy è contra. Ideo quære. The 3d point was, if unity, without composition or prescription, were a sufficient discharge of tithes by 31 Ĥ. 8. And they all agreed that it was. But Gawdy said, that there ought to be a unity of the parsonage and land in the religious persons from time whereof the memory of man runneth not, &c. before the dissolution. Popham and Fenner è contra; for if there be a perpetual unity in fee of the rectory, and in fee of the land at the time of the dissolution, that is sufficient by the statute of 31 H. 8. and no consultation had ever been granted out of the king's bench upon a perpetual unity." Moore 420.

1597.

Blincoe

v.

thereof. But, as long as it continues in the parson's hands, no tithes shall be paid thereof; because the Levite ought not to pay tithes to another Levite: but, when the glebe land is conveyed into the hands of a layman, as here it is, it shall be otherwise. And therefore, if a parson had let his glebe land, the lessor should have the gross tithes from his lessee, and the vicar should have the small tithes. And therefore it was ruled of late in the exchequer, in one Griesley's case, where certain glebe land upon the endowment was allotted to the vicar, and all the small tithes within the parish; that he should not now pay tithes of that land: but, if he had leased it over, his lessee should have paid gross tithes to the parson, and small tithes to the vicar his lessor: so here the parson himself shall be discharged; but, in regard the plaintiff hath not the parsonage, but the land only, he shall pay tithes. But all the justices held clearly, that tithes shall not be paid in this case: for the vicar cannot by this endowment demand small tithes of the glebe land of the parsonage; but he shall have the small tithes from all the parish, where they were due at the time of the endowment; but that was not of the parson's glebe land: ergo, &c. But an endowment by express words of minuta decima of the glebe land of the parsonage might well have been, and then the parson himself should have paid them to the vicar. (a) And Popham said; this clause et ulterius, si contigerit, &e. was put into the endowment for the benefit of the priory, to discharge them from the payment of tithes for any land which they should have by purchase, as long as they [199] held it in their own hands. And they all held, as it was discharged Land dis- from the payment of tithes in the hands of the priory at the time charged of payment of of the dissolution; so the plaintiff now, having the same part of land by letters patents from the king, shall be discharged by the statutes of 31 H. 8. and 32 H. 8. from the payment of tithes for ever after against the grantee of the parsonage, and all others, in regard it was discharged at the time of the dissolution. And Popby 31 H. 8. ham said; the difference would be, whether the discharge were by reason of the persons who were to pay tithes, as the order of Cistercians, &c., then the patentee should pay tithes : but, if the land were discharged from the payment of tithes by reason of a unity, it shall then be discharged by the statute in the hands of the patentee; for that privilege runs with the possession. Wherefore it was adjudged for the plaintiff.

tithe in an abbot's

hand, at the

time of the dissolution, is always discharged

(a) Moore adds, “Note also, that it ought to be ancient glebe at the time of the endowment.”