1619. Canning qui tam, &c. V. Jones. ing the cure. If the statute had intended to bind the parson to reside in the parsonage-house, it would have provided, that if there be no parsonage-house, he shall not be bound to residence. But it will be said, that such a provision would have been needless; for the law would make that exception in his favour, and excuse his re-sidence if there were no parsonage-house. I answer, that the statute has provided for things quite as unnecessary, in order to explain its intent: as, that spiritual persons beyond the sea in the king's service shall not by that statute be non-resident; and yet unquestionably, without such a provision, the law would have excepted such persons. So in the proviso in the 31st clause, which excepts a parson out of the clause of non-residence, where there is a vicar endowed for though the statute excuses him from residence, yet it shall not be construed to excuse him from the maintenance and repair of his house; for he will be still chargeable for dilapidation; and therefore residence and dwelling shall not be confined to the [371] parsonage-house. Besides, residence by the statute is opposed to absence; and absence by the statute must be absence from the cure and the parish; so that he will be resident within the statute, if he reside in any part of the parish. And subsequent statutes shew that this statute had no eye to the temporalties. Thus the statute of 28. H. 8. c. 13. and 33 H. 8. c. 28. which were made with reference to or in explanation of the statute of 21 H. 8. shew, that the visiting and instruction of his cure and charge is the thing provided for by the statute of 21 H. 8. Indeed there was no occasion for that statute for the maintenance of the houses; for parsons are punishable at common law for the decay of those; 4 E. 4. they are deprivable for it; but there was no punishment for neglect of the cure, nor any obligation to the serving of it, but the obligation of conscience. Besides, after the statute of 21 H. 8. the parson had power to lease the parsonage-house until the statute of 13 Eliz.: and if he had power to lease, he could not be bound to be resident in it. Before induction too the parson has not the temporal possessions nor any thing in them, and yet by institution he has the cure and charge: but, if this construction be admitted, though he has the cure, he shall not be bound to residence until he has the temporal possessions. It has been agreed, and objected, that it is a construction from the intent only of the statute which makes residence in the parsonage-house to be within the statute. It may be well answered, that a penal statute, as this is, shall not be taken by equity. Pl. Comm. (77.) Partridge and Croker's case is, that penal statutes, where there are not words to warrant it, shall not be taken by equity. If then a man has two parsonages, and one has a house upon it, and the other has not; he shall not be bound 1619. Canning qui tam, &c. V. Jones. [372] A surmise bition that the lands lie in a different parish than to residence upon that benefice where the house is, for his election shall not be taken away on that account. 10 Rep. 138. (a) and 5 Rep. 21. Laughter's case prove this. (b) [I have not been able to discover what was the final resolution in this case, nor to trace it any further.] M. 17 Ja. A. D. 1619. B. R. Wood's case. [MSS. Calthorpe.] A PROHIBITION being granted in the case of one Wood, upon a in a prohi surmise that the lands, whereof the tithes were demanded, lie in a different parish than that which was supposed by the libel, Bridgeman moved for a consultation, because the surmise was not proved within six months according to the statute of 2 & 3 E. 6. (c) But a consultation was refused; for this being a surmise upon which a prohibition was grantable at common law, and being neither a surbe proved mise upon a modus, nor upon a prescription to be discharged of the time limited payment of tithes, need not be so proved. that which the libel supposes, need not within the by st. 2 & 5 E. 6. A surmise that the lands were before and at the time of the dissolution of the monastery by reason of unity of possession, must be proved M. 17 Ja. A. D. 1619. B. R. Congley v. Hall. [2 Ro. Rep. 125.] It was surmised, in order to have a prohibition to a libel in the spiritual court for tithes, that the abbot and all his predecessors discharged before and at the time of the dissolution held the land discharged of tithes by reason of unity of possession. Calthorpe moved that this surmise need not be proved within the statute of 2 & 3 E. 6. for that statute does not require the surmise to be proved unless the cause be determinable in the spiritual court for non-proof of it, and this case is not determinable there by the express words of the statute. [Quare hoc, for I do not understand him.] Besides, it is impossible to swear that the land was discharged of tithes for the infinite search of records that must be made before that can be known, and also for the infinite compositions and other causes of discharge; and for that reason the general allegation of unity of possession shall be sufficient without shewing how it was, as ap Supra 189. pears from the Archbishop of Canterbury's case, 2 Rep. But the court were against him; for though precise proof cannot be made, yet the party may swear that it has been ever since the statute of 31 H. 8. reputed to be discharged by unity, or that he has heard within the time limited by st. 2 & 3 E. 6. (a) The case of Chester mill. (b) The editor has allowed this case as containing much curious learning to remain. The stat. 57 Geo. 3. c. 99. has so far regulated ecclesiastical residence, that qui tam actions on penalties for non-residence are now extremely rare, if not dis- it commonly to be so, or the like. And Dodderidge said, that he had known several precedents in this court of proof made in that manner. M. 17 Ja. A. D. 1619. B. R. 1619. Congley v. Hall. [373] Pending a suit in proupon suggestion of a can be no hibition modus,there suit in the spiritual A PROHIBITION having been granted upon a surmise of a modus decimandi, pending that surmise in plea, and before the trial of it, the parson libelled for tithes in kind of the same lands for another year; and upon an affidavit being made thereof an attachment was granted. For it was a contempt of court to proceed in the spiritual court for the same tithes, before the prohibition was tried. In F. N. B. 71. if the lord distrain for rent arrear at another day court for than that for which the first distress was made, pending the plea of hors de son fee; the tenant shall have a recaption, because the accrued. lord's title is to be tried; and upon that recaption the lord shall be fined. And an order was made, without any prohibition being granted, to stay the proceedings in the spiritual court upon the libel for these tithes. H. 17 Ja. A. D. 1620. B. R. tithes sub sequently cannot prescribe in mando. A PROHIBITION being founded upon a surmise, that a great A liberty liberty within the county of Surrey had been discharged from the payment of tithes time whereof, &c. a consultation was awarded: non decifor a prescription in non decimando is against common right; and though the Weald of Sussex, or an entire country may prescribe in non defimando, yet such prescription cannot be allowed to a particular liberty, (a) of what extent soever it may be. H. 17 Ja. A. D. 1620. B. R. Porter v. Bathurst. [2 Ro. Rep. 142.] in lease at It was found by a special verdict in prohibition, that the abbey Though of Robertsbridge was of the order of Cistertians, who, by reason of lands belonging to their order, were discharged of the tithes of all their lands dum in a Cistertian abbey were propriis manibus existunt: that the abbey was dissolved by the statute of 31 H. 8. and that the land now in question was at the time of the dissolution leased for years by the abbot, and that at that time also the lessee paid tithes : that the lease afterwards expired: that the land was conveyed to sir Henry Sidney, and from him descended to the earl of Leicester, who in the 7th of Ja. sold it to (a) Hicks v. Woodeson, 4 Mod. 336. infra, 550. Degge, P.C. part 2. cha. 16. Doct. & Stud. Di. 2. cha, 55. the time of tion, and the dissolu the lessee then paid tithes, yet that will not deprive 1620. Porter V. Bathurst. the owner of the inheritance of the privi lege of ex emption. Cro. Ja. 559. S. C. Porter that the rectory of L. in which vill the land is situated is appropriated to the dean and chapter of Rochester, who granted a lease of it to Bathurst, and he libelled in the court christian against Porter for tithes, who upon the above matter obtained a prohibition. Anscombe argued for the plaintiff, and said that this is a personal discharge in respect of the order of Cistertians, as was agreed in 11 Ja. in C. B. in Boyer's case; and though a personal privilege shall not be transferred by the general words of a statute, as appears Palm. 118. by Inglefield's case, 7 Rep. and in the Marquis of Winchester's case, 3 Rep. yet it may be by special words, as here in our case it is enacted by the statute of 31 H. 8. that "the king shall have, hold, "&c. the lands, &c. as free and absolute as the abbots, &c. held "and had them :" by reason of which words, though the privilege is not constant and continually in being, but only when the lands shall be in the hands of the abbey, yet the king, and those claiming under him, shall be discharged of tithes. But it may be objected, that the words of the statute are, that "the king shall have, "&c. as free, &c. as the abbot had and held them;" and here in our case the abbot could not be said to have them, inasmuch as the lessee of the abbot paid tithes. I answer, that the abbot held the inheritance discharged, though the lessee paid the tithes; and the statute hath respect and consideration to the inheritance, and not to the particular estate; and one may be said to have and to hold, though he have only a right; as a disseisee shall be in ward by reason of his tenure. And as to the Archbishop of Canterbury's case, 2 Rep. where it is holden, that if the lessees or the farmers paid tithes at the time of the dissolution, that shall not be said to be a unity of possession, which must be constant and perpetual, as 11 Co. Priddle and Napier's case; that does not apply; for the present is a case of a personal discharge. Quod fuit concessum by Montague C. J. Dodderidge and Houghton J. And Dodderidge said, that it was agreed (a) in Boyer's case, before cited, that the lands which belonged to the Hospitallers are discharged of tithes, though they were in lease at the time of their dissolution; and yet they were not dissolved by the statute of 31 H. 8. but by a special statute made in 32 H. 8. And Montague C. J. said, that there are other words in the statute of 31 H. 8. viz. that the king and all others claiming under him shall hold according to their title, and [375] shall hold the land discharged of tithes; and here in this case Porter's title is derived out of the inheritance, which the abbot had discharged of tithes, and therefore Porter shall have it discharged also. (b) Supra 189. Supra 236. (a) Vide infra Sir W.Jones's Report of the case of Whitton and Weston, (b) Benton v. Trot, Mo. 528. supra, 208. Wright. Gerard and Hildersham, Hob. 306. infra, 375. P. 18 Ja. A. D. 1620. B. R. Sir Edward Coke's Case. [2 Ro. Rep. 161.] IN a case between the lessees of sir Edward Coke and the earl of Warwick, it was agreed by the court and the counsel for both parties, that if one has a portion of tithes out of a rectory, and afterwards purchases the rectory, that by this the portion of tithes is not extinct, but remains grantable. And Houghton J. gave this reason for it, viz. for that the portion of tithes might be more ancient than the rectory, and that the rector of ancient time had no title to the tithes; for before the council of Lateran, every one might pay his tithes to whom he would. And Montague C. J. said, that it was a position in the time of king John, that one ecclesiastical and spiritual man shall not pay tithes to another ecclesiastical man, for ecclesia ecclesiæ decimas solvere non debet; and the case at bar was the case of an ecclesiastical person, viz. of a prior who had the portion of tithes, and also the rectory. (b) 1620. Sir Edward A portion of tithes will not become ex tinet by vesting in the same hands with the rectory.. In this case Coventry said, that it was affirmed in Barsdale and Supra 207. Smith's case that where a vicarage was endowed de omnibus decimis garbarum, that that includes hay: and all the judges said, that that case was aided by a custom, viz. that the vicar had always after the endowment used to have tithe-hay, and that was the true which came to the crown by the statute of 27 H. 8. are not privilege of within the 31 H. 8. THE plaintiff declares in prohibition, that Richard Stowden, the Monasteries last prior of the monastery of Hatfield, and his predecessors were, time out of mind, seised as well of the rectory of Hatfield, as of a certain farm there, called Downhall Farm, in his demesne as of fee, and by reason thereof did enjoy the said lands discharged of tithes; and then recites the statute of 27 H. 8. for dissolution of abbies, and that the said priory was under two hundred pounds per annum, and that by virtue of that statute king H. 8. was seised, simul et semel of the said parsonage and lands discharged of tithes; and that the abbess of Barking was seised of the manor of Littington, and she so seised, Nov. 3d, 29 H. 8. conveyed the manor of Littington to H. 8. and king H. 8. conveyed the said lands, called Downhall and a recFarm, and the said rectory to the abbess of Barking; by virtue of tory time which conveyance she was thereof seised, (and then speaks not of in right of infra, 375. Cowley v. Keys, infra, 1908. See in Cro. Jac. 559. the editor's note, in which it is said that in Bennison v. Smith, 2 Geo. 3. Lord v. Turk was held to be too inaccurately VOL. I. and therefore where the prior of Hatfield was seised [376] of lands immemorial reported to be relied on. Clavill v. Oram, infra, A a |