1599. Sibley V. Crawley. prohibition. But the court held, that this consultation was not duly granted according to the intent of the statute; because the prohibition was not duly grantable there, and so out of the statute: for it was not duly granted upon an English bill. And by Popham, [218] the statute is to be intended where the consultation is granted upon examination of the matter, and not for the insufficiency of the proceedings. Quod fuit concessum. Whereupon it was awarded, that the prohibition should stand. Not guilty is a good plea to an action of debt on the statute of T. 42 Eliz. A. D. 1599. Wortley v. Herpingham. [Cro. Eliz. 766.] DEBT. The plaintiff, being farmer of the rectory of Kirkburton in comitat. Ebor. brought debt against the defendant upon the statute of 2 Ed. 6. for carrying away his corn, the tithes not being set out, and demanded the treble value. The defendant pleaded 2 & 3 E. 6. not guilty. Coke, attorney-general, moved, that it was not any issue in this action. But all the court resolved, that it was well enough; for it was not for a non fesance, but for a mal-fesance, wherein the tort is supposed. And in an action upon the statute, which prohibits a thing, upon which a penalty is demanded, the issue may be non culp. or non debet, and so it hath been oftentimes ruled in this court. Wherefore the issue was joined accordingly. Copyhold ritance of a under him cimando. Yelv. 2. S. C. M. 42 Eliz. A. D. 1599. Crouch v. Fryer. [Cro. Eliz. 784.] PROHIBITION for suing for tithes, &c. wherein is surmised, that ers of inhe- the bishop of Winton was seised in fee of the manor of Bishopsbishop may Walton, whereof the plaintiff is a copyholder in fee: and that he, prescribe and his predecessors, from time whereof, &c. had been patrons of in a non de- the church of E. whereof the defendant is parson; and that he, Moore 618. and his predecessors, from time whereof, &c. and all his farmers and copyholders of the said manor, had been discharged of tithes, &c. and shews, that this land is ancient copyhold of the manor demisable, from time whereof, &c. And because the parson sued for tithes, and the court christian would not allow of that plea in discharge, he brought the prohibition. And upon this surmise the defendant demurred. Tanfield for the defendant moved, that this surmise is not sufficient to ground this prohibition. For, although the bishop himself, being a spiritual person, may prescribe to be discharged, &c. because, by intendment, such persons might be so [219] before the council of Lateran, by reason whereof their farmers for years, or tenants at will, might be so discharged, because their's is the possession of the bishop himself, as it hath been adjudged in Supra 167. Wright's case; yet it is not so for copyholds, which are also Crouch V. Fryer. grounded by custom, before time of memory; so it cannot by in- 1599. tendment be the possession of the bishop at the time of the said council; but it must have continued in the hands of the copyholders a long time before; for otherwise it could not be copyhold. And in 29 Eliz. it was ruled, by advice of all the justices, upon a case depending in the exchequer, that, although the queen shall not pay tithes for her own possessions, because she is persona mixta, and so might well retain them, yet, if she grants them by patent in fee, her grantees, or her copyholder of inheritance, shall pay tithes; for they do not participate of the queen's prerogative therein and this copyholder, who was before time, &c. cannot prescribe; for then there would be two times of memory, which is repugnant in itself. Wherefore, &c. Coke e contra; for although a lay person, at the common law, could not prescribe to be discharged of tithes, because he is not capable of such spiritual things; yet, as being tenant to a spiritual corporation, he may prescribe in them, but not in himself: for all those copyholds are derived out of the manors which were the possessions of the bishop; and the freehold yet abides in the bishop. For this prescription is for the bishop's benefit: for thereby he shall have the greater fines from his copyholders; especially the lord of the manor, who hath the advowson, may so prescribe; because, it may be, it was so at the foundation, that he and his copyholders should be discharged. Which is the reason, in Cotton's case, that the lord of a manor, in Supra 199. respect of a recompence given to the parson, shall have the tithes of his tenants. And so Pigot and Herns' case was ruled. Where- Supra 200. fore, &c. But Popham and Fenner held, that this prescription is ill; because the copyholders are intended to be before the council of Lateran, at which time every one might give his tithes where he would; and spiritual persons might prescribe to retain them to themselves but they ought to prescribe in themselves, and their predecessors, and not in a que estate of the manor. And then a copyholder cannot prescribe to retain them himself; and so, by consequence, he cannot prescribe to be discharged: but a bishop may prescribe to have the tithes of his copyholders, which shall be good against the parson: and upon the erection of the patronage it could not be allowed, that copyholders should retain their lands. discharged, which always should be out of the lords possession; and they ought to be appointed how they shall go by him, who [220] had then the possession before the council, and that was intended to be the copyholder himself. But of lessees for years it is otherwise; for they shall be intended to be the possessions of the bishop himself, at the time of the council. Wherefore, &c. Gawdy and Clench doubted thereof: Wherefore, adjournatur, 8 Ed. 4. 13. Note, that Pasch. 44 Eliz. this case was argued again; and then 1599. Crouch V. Fryer. No consult ation where a modus appears, though not precisely the same, yet was suggested. Gawdy, Fenner, and Yelverton resolved, that this prescription was good; for all copyholds are derived out of the manor: and it shall be intended, that this prescription had its commencement at such time, when all was in the lord's hand; and the one prescription is not contrariant to the other, although both were from time whereof, &c. for the one shall give place to the other: and this objection may be, where a copyholder prescribes for common, or the like, which is usual. But Popham held his former opinion: yet, notwithstanding, it was adjudged for the plaintiff. P. 43 Eliz. A. D. 1601. B. R. Beal v. Web, [Cro. Eliz. 819.] PROHIBITION for tithes against the defendant, farmer of the rectory of Frittender, in the county of Essex, it was surmised, that, from time whereof, &c. the plaintiff had used to pay 4s. per annum, in discharge of all tithes. And his proofs were, that he used to pay 4s. 6d. per annum. And upon this variance, a consultation was prayed. And because it appeared, that there were not any tithes due in kind to the parson, as he had sued; but it was a modus decimandi, although not in such manner as the plaintiff surmised, Pigot, S. P. the court held, that the defendant should not have a consultation. For he had not any cause to sue for tithes of the land, and it was ruled accordingly. Vide 2 Eliz. Dy. 171. Vide supra 217. Austen v. Tithes severed may be sued for in the court christian. [221] T. 43 Eliz. A. D. 1601. C. B. Blackwel's Case. [Cro. Eliz. 843.] PROHIBITION. The case was, that a parishioner severed the tithes from the nine parts; but being in a close, the gate was locked so that the parson could not come at them, and he sued in the spiritual court: and there the question was, whether the gate were locked, or open. And thereupon a prohibition was brought, supposing this to have been a temporal matter; for the tithes being severed are lay chattels. But the court said, that although the tithes be severed, yet by the statute they remain suable in the spiritual court. And then the other is but a consequent thereof, and therefore is there triable. And if they refuse to allow his proofs, as it was surmised, (but not within the prohibition,) it was said, that he ought to appeal. H. 44 Eliz. A. D. 1602. C. B. Robinson, Vicar of the Church of Kimbolton, v. Bedel, [Cro. Eliz. 873.] 1602. Robinson V. Bedel. not re by non-presentment of a vicar in 160 years. TRESPASS, for taking certain loads of wood, set out for tithes : Vicarage the defendant pleaded not guilty. The plaintiff shewed in evi- united to dence, that in the time of king Ed. 3. the rectory was impro- the rectory priated, and the vicarage then endowed, and (inter alia) the tithes of wood were allotted to the vicar. The defendant shewed, that, for 160 years last past, there had not been any vicar presented there, until the plaintiff obtained a presentation from the queen by colour of lapse; and so pretended, that in regard it had continued so long in this manner, it became reunited to the rectory the court informed the jury, that although a vicarage is always taken out of the parsonage, and for the necessity thereof may be reunited to supply the parsonage, yet, by continuance of time in not presenting a vicar, which is the default of the parson himself, it ought not to be adjudged to be a discontinuance of the vicarage. But somewhat ought to be shewn of the reuniting thereof. Wherefore, by the court's direction, the jury found for the plaintiff. T. 44 Eliz. A. D. 160. B. R. But Cro. Ja. 70. firmed in S. C. af IN debt for tithes, non debet was pleaded, and it was found that debet 781., and as to the residue non debet; and damages were assessed at 1d. and 40s. costs. The plaintiff released the damages error. and costs, and had judgment for the debt. Note, 1. The statute which gives treble damages does not allow the jury to give other damages. 2. No costs being given by the statute, the jury cannot assess costs. 3. Two farmers may join in an action upon the sta4. A farmer of tithes shall have an action by the equity of the statute, because he has the right to the tithes though the statute [222] does not give the action to the farmer. 5. An agreement with the one farmer shall bind his companion. tute. H. 45 Eliz. A. D. 1603. B. R. Gibson v. Holcraft. [Yelv. 31.] prohibition. THE suggestion in a prohibition to stay a suit in the spiritual Pleading in court for tithes was, that the abbot of Vale Royal in Cheshire was seised of the parsonage of W. and of the grange of Darnal, whereof tithes were demanded by the present parson of W. and that the said abbot and his predecessors from time whereof, &c. were seised of the said parsonage of W. and of the said grange of D. in their demesne as, &c. in right of their abbey, and ratione inde shewed VOL. I. P 1603. Gibson V. the unity of possession in discharge of the tithes upon the statute of 31 H. 8. To which the defendant pleaded, that the abbey was founded 5 E. 1. (which is within time of memory), and shewed Holcraft. and confessed the unity of the parsonage and grange after the time of the foundation. And upon the motion of Coke, the attorney general (per totam curiam), the plea in bar is good; and it is not necessary to traverse the prescription, for the shewing of the foundation of the abbey to be after the time of memory is a sufficient confessing and avoiding. But, if the defendant against the suggestion of the perpetual unity would shew, that the demesnes before the statute, and in the time of the abbot, were in the hands of the farmers, &c. there, he ought to traverse the prescription; for although the possession was chargeable in other hands, yet as to the fee-simple which remained in the abbot, it is a discharge in right. What cus tom for non-pay- later mowth M. 2 Ja. A.D. 1604. B. R. Hall v. Fettyplace.* [Cro. Ja. 42.] PROHIBITION for tithes; whereas he was seised in fee of three acres of meadow infra parochiam de Sunning; and that within the said parish there is such a custom, that every one seised of any meadow within the same parish have used time whereof, &c. to cut down the grass upon such meadow growing at their proper costs, and the said grass to ted and shake abroad, and the said grass, so dispersed and cast abroad, to gather into weoks and windrows, and to put into small cocks; et post primam circumlationem inde the tenth cock inde to set forth for the parson, or his farmer, in satisfaction of all tithes, as well of the first mowth as of the latter mowth of that meadow for the same year, which the parson, &c. had used to accept, &c.; and allegeth, in facto, that he did so in such a year; and that the defendant sued him for tithes of the latter mowth, &c. And hereupon the defendant demurred: and it was moved for the defendant, that this prescription was not good; because there is no more given to the parson than he ought to have; for, by giving unto him the tenth cock, it is that which the law appoints, and therefore cannot be a recompence for another thing; for the tenth of the hay of the first mowth cannot be satisfaction for the tenth of the after mowth. But because it was alleged, that he at his own costs had tedded and shaken it abroad, and gathered it into weeks and windrows, and made it into little This case is differently reported by Moore, 758; for he says, that this prescription to make the first crop into small cocks in lieu of all the titres of the first and second crop was not allowed: but, if he had prescribed to make it into great cocks, or to carry it to the parson's barn, that would have been a good prescription. But Qu. whether this statement be not correct, and whether any tithes be due of the after mowth. Vide infra. Cro. Eliz. 660. |