1610. Hunston V. Cocket. (a) 6 Co. 30. 2 Brownl. 25. 2 Ro. Abr. 320. pl. 4. S. C. void, as it was adjudged between Green and Baker, quod vid. (a) Wherefore for this cause, it appearing that the plaintiff had not any title, it was adjudged for the defendant. (b) M. 10 Ja. A. D. 1612. Priddle v. Napier. [11 Co. 8. b.] In an attachment upon a prohibition in the common pleas by John Priddle qui tam, &c. against Thomas Napier gentleman, proprietor of the rectory of Tintenhul in the county of Somerset, the plaintiff declares, that whereas one Robert Shirburne alias Whitlocke, late prior of the priory of St. Peter and Paul the Apostles, of Montacute, in the county of Somerset, ordinis Cluniacensis, was seised of twenty-two acres of land, called Perins-Hill alias Guilberts-Hill, in Tintenhul, in the said county, and of the rectory of Tintenhul, eidem prioratui pertin' et spectan', ac parcel' eisdem priorať existen' in his demesne as of fee in the right of the priory, and that the said prior and all his predecessors, priors of the said priory, before the dissolution of the said priory, and at the time of the said dissolution of the said priory, were rectors of Tintenhul aforesaid, and had and held the rectory aforesaid, simul et semel with the said twentytwo acres of land, in manibus suis propriis in jure prioratús sui prædicti, ratione cujus idem nuper prior et omnes prædict' alii priores ejusdem nuper prioratus per totum tempus prædictum ante prædictum tempus dissolutionis prioratus illius, usque ad tempus dissolutionis, &c. habuerunt et tenuerunt, ac idem nuper prior tempore dissolutionis, &c. habuit et tenuit prædictas viginti et duas acras terræ exonerať, acquietať, et immunes de omnibus et omnim' decimis, &c. and that 20 Martii an 30. the said prior and convent by their deed enrolled in chancery, gave, granted, and surrendered the said priory, the said rectory, land, and all the possessions thereof, to king H. 8. his heirs and successors; and that by force thereof, and of the statute of 31 H. 8. of dissolutions, king H. 8. was seised of the said rectory, and of the said land in his demesne as of fee, as in the right of his crown; and shewed the clause of the statute of 31 H. 8. of discharge of payment of tithes; by force whereof, king H. 8. was seised of the [237] said 22 acres of land, &c. discharged of payment of tithes, and conveyed the inheritance of the said 22 acres to sir Thomas Freke and others; who anno 38 Eliz. demised the same to the said John Priddle for 99 years, if three of his sons or any of them should so (b) See Grymes and Others, v. Smith, 12Co. 4. supra, p. 158. Alden v. Tothill, infra, p. 436. Stat. 15 Ric. 2. c. 6. p. 10. Stat. 4 Hen. 4. c. 12. p.13, 14. 1612. Priddle V. Napier. The prior of Mont acute was seised of an advowson, tain lands; licensed the ordi nary assent ed. After church be wards the came void, that the prior might hold it appropriate. 27 H. 8. the incumbent died, propriation and the ap took effect long live; and averred their lives, and that the defendant proprictarius rectoriæ prædict', &c. before the bishop of Bath and Wells sued the plaintiff for tithes of corn growing in the 22 acres of land, &c. Et præd' Thomas Napier pro consultatione habendâ alleged a grant by letters patents of queen Elizabeth, anno regni sui secundo, of the said rectory to Rive and Evelyn, and to their heirs; and by mean conveyance conveyed the said rectory to the said Thomas Napier in fee, and that he libelled for the said tithes, as he and of cerlawfully might; absque hoc quod prædictus prior et omnes prædecessores and 20 H.8. sui priores præd nuper prioratús a tempore cujus contr' memoria homi- the num non extitit ante tempus dissolutionis, &c. nec-non usque ad tempus him to apdissolutionis, &c. habuerunt & tenuerunt prædict' viginti & duas propriate it. 21 H. 8. acras terræ exonerat', acquietat' & immunes de omnibus & omnimodis decimis quibuscunque super prædict' vigint' & duas acras terræ quovismodo provenient, &c. prout, &c. & hoc, &c. unde petit judicium, & breve dicti domini regis de consultatione sibi in hac parte concedi, &c. Upon which issue was joined, and the jury before the justices of nisi prius gave a special verdict, that the prior and his predecessors, a tempore cujus, &c. until the time of the dissolution, were seised of the said 22 acres of land in their demesne as of fee as in the right of the said priory; and that one Thomas, late prior of the said priory, was seised of the advowson of the said church of Tintenhul in fee in the right of his priory: and he being so seised H. 8. the 8th day of May, in the 20th year of his reign, by his letters patent (the exemplification of the enrolment of which under the great seal they set forth), De gratiâ suá speciali ac certâ scientia et mero motu suis licentiam dedit præfat' Tho' tunc priori nuper prioratus, et ejusď loci conventui et successoribus suis, quod ipsi et successores sui dictam ecclesiam parochialem de Tinten' præd', impropriare, consolidare, incorporare, annectere, et uni¡ e, et eam sic appropriat', consolidať, incorporat', et unitam, in proprios suos usus tenere possint; with proviso to endow a vicarage, and that a competent annual sum should be distributed to the poor, with the usual non obstante: and that John bishop of Bath and Wells, ordinary of the said place, Sept. 1529, by indenture tripartite, viz. one part sealed with the seal of the said bishop, the other part sealed with the seal of the prior and convent of Bath, (which confirmed the said indenture), and the *third part sealed with the seal of the dean and chapter of Wells, (which also confirmed the said indenture), Ecclesiam parochialem de and the Tintenhul dictæ nostræ diœcesis et sui patronatus (ut asserunt) dictis whether the priori et conventui et successoribus suis et domui sive prioratui suo prædict' cum consensu pariter et assensu metuendissimi in Christo principis et domini Henrici octavi Dei gratia, &c. authoritate nostra ordinaria annectimus, appropriamus et unimus per præsentes, ita quod cedente vel decedente rectore ejusdem ecclesia parochialis qui nunc est, seu *[238] 4th united to son of the rectory ap the posses propriate, and also of the land out tithes were due to the of which said prior the rectory. st. 31 H. 8. the priory is dissolved, and the impropriation given to one, and the lands to another; question is, patentee of shall hold it discharged the lands of the pay ment of 1612. Priddle V. Napier. spect of that unity. aliter ipsa ecclesia quovismodo vacari contigerit, liceat ipsis priori conventui suisque successoribus per se vel per alium seu alios ipsorum nomine possessionem dictæ ecclesia parochialis authoritate propria intrare, &c. et in proprios usus convertere et imperpetuum retinere: with entithes in re- dowment of a vicarage, and provision for an annual sum to the poor: and afterwards the then parson of the said rectory died; after whose death the said Thomas, prior of the said priory, into the said rectory entered, and was, as well of the said rectory as of the said 22 acres of land, seised in his demesne as of fee in right of the said priory: and afterwards the said prior Thomas died, and prior Robert succeeded him: and that the said prior Thomas, and prior Robert, ever after the said appropriation, held the said rectory with the said 22 acres of land in their own hands, simul et semel, in the right of the priory, and found the surrender of the said priory; and that the said king H. 8. 24 die Julii anno 36 H. 8. by indenture under the seal of the court of augmentation demised the said rectory to William Petre, doctor of law, for 21 years, who assigned it over to Edward Napier, and that no tithes were paid until the second year of queen Mary, and then the said Edward Napier had a sentence in the court of audience against one Thomas Guil, then farmer of the said 22 acres; and that after the said sentence, until the 8th year of queen Elizabeth, tithes were paid of the said 22 acres, and conveyed the said rectory from king H. 8. by mesne descents to queen Elizabeth, and by the said letters patent and divers mesne conveyances to Napier: et utrum super tota materia, &c. præd' Robertus nuper prior et omnes prædecessores sui priores ejusdem a tempore cujus contrar', &c. ante tempus dissolutionis, &c. necnon usque ad tempus dissolutionis, &c. habuerunt et tenuerunt prædict 22 acras terr' exonerat', acquietať, et immunes de omnibus et omnimodis decimis quibuscunque, &c. Juratores penitus ignorant, et petunt advisamentum curiæ in præmissis, et si, &c. And this case was oftentimes argued at the bar by the [239] serjeants, and now this term it was argued at the bench. And in this case these points were resolved: 1. That the information upon which the prohibition was granted was sufficient in matter: for although every parish church is supposed to be presentative, and the incumbent ought to come in by admission, institution, and induction; yet the plaintiff in this case may prescribe, that the prior and his predecessors a tempore cujus, &c. have been rectors of the said church; for that amounts that it was impropriate, &c. and the beginning of a thing done before time of memory, cannot be known, viz. whether it came by union or impropriation. And therewith agrees 21 E.4. 65. a. where, in trespass for certain cart-loads of oats taken at Bodmin, against the prior of Bodmin, the defendant said, that the corn was Priddle Napier. growing in a certain place in B. in the parish of B., of which 1612. parish he is persona impersonata, i. e. incumbent; and he was driven to shew how he came to the same parsonage; wherefore he alleged title by prescription, and how the corn was severed from the nine parts, and that he took it, and that was allowed for a good title to the rectory. Wherefore, as to this point, the information was resolved to be good; but the addition of the impropriation, &c. had made it without question. It was also holden, that the conclusion of the prescription of the unity, viz. ratione cujus, the prior held the said land discharged of tithes, was not formal; for in truth, by the unity (as it shall appear after) the land was not discharged of tithes, but of payment of tithes; and so are the words of the statute of 31 H. 8. (as also shall be after shewed.) But yet it seems, that forasmuch as the prescription itself is well alleged in substance, so as the foundation of the prohibition is good, that the misprision of the conclusion and consequence thereupon shall not be a cause to grant a consultation. 2. That the defendant's plea pro consultatione habendá (for he is in a manner an actor) was insufficient, because he has traversed a thing not traversable; for the prescription of the unity ought to have been traversed, and not the conclusion, viz. ratione cujus; and that for divers reasons; one as in logick, the conclusion of a syllogism cannot be denied, but the major or minor proposition; so it holds in law, which is the perfection of reason: and therefore in a præcipe, if one pleads, that the manor of Dale is ancient demesne; and the land in demand is parcel of the manor, and so ancient demesne; the demandant cannot say, that the land in demand is not ancient demesne, for that is the conclusion upon the two precedent propositions; the 1. That the manor is ancient demesne; [240] the 2. That the land in demand is parcel of the manor; for sequitur conclusio super præmissis, and therefore it cannot be denied; and therewith agree 41 E. 3. 22. a. 48 E. 3. 11. a. b. and many other books so in the case at bar, the major, where there is a perpetual unity of a rectory and land therein until the dissolution, &c. there, the land is discharged tithes; but here has been a perpetual unity of the rectory of T. and the twenty-two acres, ergo, the 22 acres are discharged of tithes, this conclusion cannot be denied. 2. It is not only a conclusion, but a conclusion of law, and matter in law shall not be put in issue to be tried by the country; for the rule is, quod quisque norit, in hoc se exerceat, and therefore, sicut ad quæstionem facti non respondent judices, ita ad quæstionem juris non respondent juratores: and if the jury take upon them to know the law, and find the special matter, and mistake the law, the judges of the law shall give judgement on the special matter according to law, without having regard to the conclusion of the jury, who ought ૨૩ 1612. Priddle V. Napier. 13 H. 7. 22. &c. One pleaded a gift not to take upon them the judgement of the law; and therewith agree Pl. Com. Amy Townsend's case, f. 112. b. 114. b. vide 5 H. 7. Carew's case, 12, 13, 14, 15. 9 H. 6. 38. a. and the lord Berkley's case, Plo. Com. 230. b. to king H. 7. and to the heirs male of his body, virtute cujus he was seised in fee; the other confessed the gift, virtute cujus he was seised in tail, and no traverse to the virtute cujus, for the conclusion is the conclusion of the law. 3. The issue is not well joined, 1. because the matter of the discharge is by reason of the unity, which is by force of the statute of 31 H. 8. and not by the common law, and the issue is joined upon a discharge by the common law, viz. prescription in the prior and his predecessors to hold the said 22 acres of land discharged of tithes, which is a discharge by the common law. 2. Every issue ought to consist of an affirmative and a negative, and here is not any affirmative, for that which comes after the ratione cujus is not affirmative, or positive alleged, but as a consequence upon the precedent matter, vide 8 H. 6. 6. a. 36 H. 6. 15. a.b. 9 E. 4. 36. 6 H. 7. 5. b. and therewith agrees the resolution of the judges in the bishop of Canterbury's case, in Supra 189. the second part of my Reports, fol. 48., so that here is not any issue joined of any matter alleged in fact in the information. 4. Upon the verdict divers points were moved at the bar, 1. If the said impropriation (as it was found) was good or not. 2. If it was good by the common law, if the statute of 35 Eliz. regina, [241] cap. 3. has supplied the imperfection of it or not. When the jury find matter sufficient to bar the parson of the tithes, which was not parcel of their charge, nor within the issue, if without regard to that matter a consultation shall be granted. 4. If by the said impropriation and unity, so short a time before the dissolution, which could not be above nine or ten years, it should be such a discharge of tithes as is intended within the statute of 31 H. 8. As to the first it was objected, that the said impropriation was void for two reasons: 1. because the king has made a licence of impropriation of the church of T. per verba de præsenti tempore, where it appears, that at the time of the licence made there was an incumbent then of the same church; so that no appropriation could be made in præsenti, but in futuro, by special words, to take effect after the death of the present incumbent; for as no appropriation can be made of a church which is full of an incumbent, but in a special manner to take effect after the death of the incumbent, so the king's licence (without which the appropriation cannot be made) ought to be special also, otherwise the king is deceived in his grant, and by consequence the appropriation is void; and that no appropriation can be made without the king's licence, vide sir Will. Supra 136. Ethingham's case, in 17 E. 3. 39. a. and Plow. Com. in Grendon's |