Priddle V. Napier. * [247] 66 1612. discharged of tithes during the term: and it was resolved per totam curiam, that the tithes should not pass by such general words, and as they are tithes not severed, they are merely ecclesiastical; for the subtraction of which no remedy lies by the common law. If a parson purchases land within his rectory, and leases this rectory, the lessee shall have tithes of the land purchased, and therewith agrees 30 H. 8. Dyer 43. pl. 21. Vide 32 H. 8. Brook, tit. Dismes, 17. Then inasmuch that if tithes be considered of themselves before the severance of them, they are merely ecclesiastical, and so collateral to the estate of the land, that no unity can extinguish or suspend them, but notwithstanding any unity, they remain in esse; now the words of the act are to be considered, which are," that "as well the king, his heirs and successors, as all and every such person and persons, their heirs and assigns, which have, or here"after shall have any monasteries, parsonages appropriate, or "other hereditaments, &c. shall have, hold, retain, keep, and en"joy, as well the said parsonages appropriated, &c. messuages, "lands, tenements, and other hereditaments, &c. discharged and "acquitted of payment of tithes, as freely and in as large and ample "manner as the said late abbots, priors, &c. had held, occupied, "possessed, used, retained, or enjoyed the same at the days of their "dissolution:" and upon these words, forasmuch as the unity doth not discharge nor suspend the tithes, but that they were in esse at the time of the dissolution: and forasmuch also as these words (discharge and acquit) imply actual immunity and freedom; and that the king and his patentees shall not have them discharged and acquitted absolutely, but sub modo, that is to say, "in as large " and ample manner, &c. as the said late abbots, &c." and the late abbots held not the said lands in case of unity discharged, but charged with the payment of them; for these reasons, in short, it was doubted, whether the said act should extend to the case of a perpetual unity; and it was also urged, that if the said act of 31 H. 8. in case of perpetual unity should, in respect thereof, discharge the land of tithes, it would do a wrong; and as it is said in Plo. Com. in the earl of Leicester's case, 398. b., the parliament is a court of the greatest honour and justice, of which none ought to imagine a dishonourable thing; and the Doctor and Student, fol. 165. cap. 55. It cannot be thought, that a statute that is made by authority of the whole realm, as well of the king, and of the lords spiritual and temporal, as of all the commons, will recite a thing against the truth, &c. And Fortescue c. 18. prudentia etiam et sapientia necessario statuta hujus regni referta putandum est, dum non unius aut centum solum consultorum virorum, sed plusquam trecentorum [248] electorum hominum, quali numero olim senatus Romanorum regebatur, ipsa sunt edita. 1612. Priddle V. Napier. Supra 189. sites of an by unity of possession. But at length, upon great consideration, it was resolved and adjudged, that a perpetual unity a tempore cujus, &c. till the dissolution, should be prima facie a discharge of the land of payment of tithes, by force of the said branch of 31 H. 8. c. 13. for divers reasons. 1. The statute doth not say discharged of tithes, but discharged of payment of tithes, and for divers other reasons, the chief of which was, for the infinite impossibility and impossible infiniteness, so that such immunities and discharges as religious houses had before time of memory cannot be known. And it was expressly resolved, that a general allegation of unity at the time of the dissolution, &c. without an averment that it was perpetual, was not sufficient: and although it had been a perpetual unity, yet, if the farmers of the lands of the rectory had paid tithes before the dissolution, then the intendment and presumption of law upon the perpetual unity failed: and all this you may see in the archbishop of Canterbury's case, in the second part of my reports, and divers judgements and resolutions there cited, fol. 48. & 49. So that What are such unity as is within the said branch of the act of 31 H. 8. the requiought to have four qualities. 1. Talis unitas (a) ought to be exemption justa, rightful and not by wrong. 2. It ought to be æqualis, s. fee in the one and the other; for if the abbots, priors, &c. have held by lease, a tempore cujus, &c. that is not a unity within the statute. 3. It ought to be perpetua a tempore cujus, &c. 4. It ought to be libera, free of payment of any tithes : but, if their farmers at will, for years, &c. have paid tithes to them, (as hath been said,) the unity perpetual will not serve. But it was asked, What if the appropriation was made in the times of E. 4. H. 6. H. 4. R. 2. E. 3. &c. and yet in law within time of memory, and unity had continued from the time of the appropriation until the dissolution, and tithes were never paid, neither by the abbots, &c. nor their farmers: should not the statute extend to those cases? and it was answered, No, upon the point of unity; for if he will take the aid of the act of 31 H. 8. the unity, as hath been said, ought to be perpetual. But in such case he may allege the said branch of the act of 31 H. 8. concerning the discharge of payment of tithes, &c. and that the abbots, &c. a tempore cujus, &c. until the dissolution, have held the land discharged of tithes, (as he may well prescribe by the common law,) and give such evidence that he may approve it: and so, if in truth the land be discharged, he has sufficient remedy to relieve himself. Vide the [249] bishop of Winchester's case, in the second part of my Reports, fol. Supra 167. v. Oram, infra, p. 1354. Prowse v. Dr. Leyfield, infra, p. 264. 1612. Priddle v. Napier. Grant of totum jus a lease of has in right 2 Bulstr. 65. S.C. & 2 Bl. Rep. 801. by De Grey 44. b. 45. a. But, if the abbey or priory, &c. was founded within time of memory, then he cannot prescribe omnino; and forasmuch as in the principal case, the appropriation was made in 20 H. 8. so that it appeared to the court, that before that the 22 acres were charged with tithes; for of common right all lands ought to pay tithes; for that reason the chief justice concluded, that the said 22 acres were, as this case is, chargeable with tithes. But, if the parties are not satisfied with it, they may begin again. For inasmuch as the information, as it is resolved, is good; and the plea, pro consultatione habenda, altogether insufficient; and the verdict impertinent to the issue, they would not grant a consultation; and thereunto the whole court agreed. Hil. 10 Ja. A. D. 1613. Arnold v. Bidgood. [Cro. Ja. 318.] DEBT upon the statute 2 E. 6. c. 13. for not setting out tithes. suum in de- The case was; a man being possessed of a lease of tithes in right cimis passes of his wife as executrix to her former husband, grants totum jus them which titulum et interesse suum de et in decimis prædictis, After verdict for the grantor the plaintiff (who claimed under the said grant), it was moved in of his wife. arrest of judgement, that the declaration was not good, because the plaintiff had not set forth any good title to enable himself to the 3 Wils. 278. tithes. And the books of 10 E. 4. 1. & 19 H. 6. 40. were cited to the purpose. But the whole court unanimously resolved, that the S.C. cited grant was good, and the lease he had in the tithes in right of his C.J. feme did thereby pass: for he granted totum jus, titulum et interesse suum de et in decimis prædictis. And, by Doderidge, the word suum doth import a propriety in possession, and is all one as if he had specially named the same in the grant; nor could it be more certainly named or expressed. There was then an objection made out of the proviso in the statute for dissolutions, that all leases made by any abbot within a year before the dissolution, should be void; and this lease was pretended to be so, and therefore void. But it was thereto answered, that here the issue was only, whether he were discharged of tithes or not: and the jury gave their ver[250] dict directly, that at the time of the dissolution there was not any discharge of tithes and this lease being but an inducement only to the title of the plaintiff, the issue therefore is well enough." But, if in this case there had been any mispleading or mistrial, the court held clearly it was aided by the statutes of 32 H. 8. & 18 Eliz. cap. 14., and cannot be quashed after verdict; whereupon judgement was given, and entered for the plaintiff. P. 11. Ja. C. B. A. D. 1614. Urreg v. Bowyer. (a) [MSS. Calthorpe.] 1614. Urrey V. Bowyer. of Jerusa lem ment of BOWYER libelled in the spiritual court against Urrey for tithes Q. Whether of corn. Urrey suggested that the lands of which the tithes were the lands of the hospital demanded were in the hands of Richard Weston prior of St. John's of St. John of Jerusalem in England and of his brethren, and that they were shall be discharged of tithes in their hands: he then shewed that all the discharged lands were given to the king by the statute of 32 H. 8. c. 24. and of the paypleaded that statute which gives to the king all immunities, privi- tithes. leges, jurisdictions, &c. which the prior or any of his predecessors had; and set forth farther that the king by his letters patent granted these (the said lands) to the now plaintiff in prohibition, with a clause therein that he should have tanta, talia, tot immunitates, privilegia, &c. as any one had had theretofore, &c. and so he prayed a prohibition. Upon this suggestion in the prohibition Bowyer demurred. And Coke C. J. argued that the suggestion was insufficient, and that these lands ought to be charged with tithes, and could not be discharged thereof. And of that opinion was Nicholls J. But Warburton and Winch held, that the lands ought to be discharged of tithes; and their reason principally was, for that the statute of 32 H. 8. c. 24. revives all privileges, jurisdictions, immunities, &c. which the Hospitallers had enjoyed, and they insisted much upon the book of 10th of Eliz. Dy. (b) But I heard neither their argument nor that of Nicholls, and therefore have not reported them: but I have only reported Coke's argument, which I did hear. Coke held, that the statute of 31 H. 8. c. 13. did not extend to [251] the possession of the Hospitallers, because they were dissolved by an act of parliament subsequent to it; and the statute of 32 H. 8. c. 24. which revives the immunities and privileges of the dissolved monasteries does not extend to them, because the privilege of being discharged of tithes is a privilege inseparable from the person of the prior. He said there were four orders that were discharged of tithes by a general council and by a decree of the pope, viz. the Cistertians, the Templars, the Hospitallers, and the Præmonstratenses; and all other orders were to pay tithes as other persons; and even these privileged orders were to pay tithes de terris de novo acquisitis, and as to those were not discharged. And the words of the council are, that the said orders and their successors shall be (a) The arguments of the counsel in this case are reported in 2 Brownl. 8. 20., but as this question was debated upon several occasions vario Marte, and as the report of those arguments is not a very correct or finished one, I have thought it unnecessary to insert it here. This argument of my lord Coke is no where in print. (b) 277. pl. 60. Stathome's case, supra, p, 132. 1614. Urrey V. Bowyer. discharged of tithes for their lands so long as they retain them in their own hands. So that it appears by the words of the council, that if the lands be transferred to the hands of any other persons the privilege is gone, and they become charged with tithes again; for the medium dispositivum of the bull or council which discharges them of tithes is ecclesiastical; the persons, who are discharged, are ecclesiastical; and the thing itself, whereof the discharge is made, is ecclesiastical. It seems to me then that there is great reason that this privilege should not be transferred to persons who are not ecclesiastical; and for whom none of those reasons can be alleged why they should be discharged of tithes. It is besides a thing that was never seen, that inseparable privileges were either given to the king, or contained within the general words of an act of parliament. Though the statute respecting the Templars made in 17 E. 2. wills that the Hospitallers, to whom the possessions of the Templars were transferred, shall hold by the same tenure and the same services which the Templars held by, yet the immunity of the tenure in frankalmoigne was not transferred from the Templars to the prior of the hospital of St. John of Jerusalem and his brethren, as was adjudged in 35 H. 6. 56, 57. And yet in that act the words were special; and the persons to whom the transfer was to be made were of the same quality with the persons from whom the possessions were taken. In 3 E. 3. 11. an appropriation is not transferred from the Templars to the Hospitallers, notwithstanding the statute of Templars wills that the prior of the Hospitallers shall have all the possessions which belonged to the Templars; for the [252] appropriation is inseparably annexed in privity to the Templars; and cannot be transferred by the general words of an act of parliament. The statute of 33 H. 8. c. 20. gives all manner of conditions to the king; and yet by force of these general words a condition inseparably annexed to the person of the party attainted is not given to the king, as was adjudged in Inglefield's case, 1 Anders. 293. So by that statute a right of action shall not be given to the king, notwithstanding that the statute gives all rights generally; for it is a thing consisting in privity, and therefore shall not be transferred by the general words of an act of parliament, as may be seen in the marquis of Winchester's case, 3 Co. 2. So in the case at bar, as the immunity of being discharged of tithes is, so long as the land shall remain in the hands of the Hospitallers, and therefore is inseparable from their persons; for that reason it shall not be transferred by the general words of the act of 32 H. 8. c. 20. Besides, there is no instance of the general words of an act of parliament being extended to tithes. For tithes being a spiritual thing, and due jure divino, quoad a competent maintenance, and not jure humano, the common law does not take any notice of them in an act of parlia |