1620.

Slade

V.

Drake.

for non-residence or the like, and legal process of sequestration, 5 E. 4. 29.

So, union of chapel must be shewed; by whom, scil. the pope or bishop; not generally, concurrentibus iis, &c. 11 H. 7, 8.

In pleading a divorce, you must shew before whom it was, and set forth the cause of divorce, 11 H.7.27.; but all the proceedings you shall not need, as you should of a recovery at the common law, 21 E. 4. And therefore in Specot's case, 5 Rep. 57. the bishop cannot plead cause of refusal, schismaticus inveteratus: nor upon the statute 4 H. 4. that a man was defamed of heresy. But they must specify the schism or heresy, though they be matters of mere spiritual cognizance. Vide Dyer, 8 Eliz. 154. Haunter of taverns, player at unlawful games, et ob alia diversa crimina criminosus.

For this is regular for difference between the king's courts and the courts ecclesiastical, that though a spiritual cause cannot originally and primitively fall into the king's court; as for calling a man heretick he shall not have an action of the case, 20 H. 8. yet, if a civil action be well commenced, as in the cases cited, a quare impedit or an action of false imprisonment, if any thing fall incidentally, that is spiritual, the king's court shall continue the plea upon it either by jury or demurrer, except in case where the law hath provided trial by ecclesiasticks; as by the issue upon bastardy, n'unques accouple, &c. literature, and the like: in which cases the bishops are not judges, but ministers of the king's courts as other kind of triers are; whereupon the court proceeds to judgement according to their certificates and trials. But on the contrary, if a case begin well in the spiritual court as being spiritual, and a point fall incidently, that is of temporal cognizance, it is clean contrary: for the trial is called from them; as in daily experience, in prescription and limits of parishes, in suits of tithes.

Now, if it be a point of discharge that is to be pleaded, as this case is, it must ever be pleaded specially, and shewed to the court, how the discharge is; for it is no discharge if it be not sufficient; and the sufficiency is matter of law, and therefore must be seen and judged by the court; as is 22 F. 4. fol. 40. And Mansel's case. Co. lib. 2. fol. 3.

Now, touching the discharging of tithes themselves, and the pleading of them at the common law; it is to be observed, that they [388] are things of common right, and do of right belong unto the

church. And therefore though it be true, that before the council of Lateran, there were no parishes, nor parish priests that could claim them, but a man might give them to what spiritual person he would; yet to the church he must give them. But since parishes were erected, they are due to the parson, (except in spiritual regular cases), or vicar of the parish; and therefore when you have

a prohibition of discharge of tithes, you must consider it is a plea in bar against common right to a demand of tithes, which is a common right, though they be in several courts, as by a release either in deed or law.

Now then, if you will discharge a just demand, you must satisfy the court of your discharge. Consider then the kinds of discharge of tithes, the persons capable of them, and the means how.

The persons or bodies capable of them, are either spiritual or temporal.

Temporal I say, when they were temporal, when the discharge did first vest in them; for otherwise if the temporal man succeed a spiritual body in discharge, as upon the statute 31 H. 8. it is to be reckoned in a spiritual person or body, not in a temporal one.

1620.

Slade

V.

Drake.

of tithes.

The spiritual person had four ordinary ways of discharge, that Discharge is, 1st. bull of the pope: 2dly. composition: 3dly. prescription: and these were absolute: 4thly. order, and that was limited so long as land remained in the manurance of the religious persons themselves; and these were the Cistercians, the Templars, and the Hospitallers, or Hierusalomitans: but unity of possession of the parsonage appropriate and the land tithable was no discharge, nor so holden at the common law; but how that came into use, and upon what reasons, and with what cautions, and how to be deducted in pleading, I shall speak after when I come to the statute of 31 H. 8.

Now, clearly, at the common law, the spiritual person could not claim his discharge by bull, composition, or order; but he must plead it with his ground and reason specially; but his discharge by prescription was allowed him without any other reason, because he was a person capable of such discharge. And so the original was probable, and therefore the prescription was allowed him as in other cases immemorial whereof the original cannot be found, but is ever presumed just.

Now temporal persons (not to speak of the king, which was a special case, 22 Assise) had two ways to obtain tithes, or to discharge tithes; the first was by grant of the parson, patron, or ordinary; the other was by a prescription; but that was ever, not prescriptio simplex, but composita, not a prescription single, but compounded, differing from the case of the spiritual person. And so is Pigot and Heron's case. And so are the common cases, where men have the Supra 200. discharge of tithes in kind by paying composition for them in money or land or pension, held or enjoyed by parsons and vicars in lieu of them, 8. E. 4. F. N. B. &c.

But now note a strange anomalum in this case, tithes differing from all other cases in law.

[389]

1620.

Slade

v.

Drake.

[390]

For whereas prescription and antiquity of time fortify all other titles, and suppose the best beginning that law can give them: in this case it works clean contrary. For whereas a grant of a parson, patron, and ordinary is good of itself without any recompence or consideration; when it runs out to prescription, it dies and perishes; whereof no other reason is given, but that our books say that a man may prescribe in modo decimandi, but not in non decimando: and this is in favorem ecclesia, lest lay-men should spoil the church.

But I will make another reason not dissonant from law. There are presumptions of law so violent, as though they be false, a man should not be received to aver against them; as, in a precipe, the tenant pleaded himself villein to T. S. and that he hath nothing but his villenage; the demandant had no reply, though it were false, but his writ must needs abate, till the statute 37 E. 3. did admit the counterplea; Mansel's case, and 16 H. 7. So in replevin, if upon avowry the tenant disclaims, he shall have judgement, though it be false: for the law believes, that these parties will not do themselves wrong in so high a degree. The like reason moves in this case: the law presumes violently that a layman cannot be absolutely discharged of tithes; and therefore will not allow a prescription of such discharge; holding it more reasonable, that some one man should suffer a mischief to lose such a privilege, being so improbable and of so dangerous consequence, than for his particular to admit a spoil of the church and a decay of religion, according to the rule, omne magnum exemplum aliquid habet ex iniquo, quod publicá utilitate compensatur.

So, though you shall be allowed your discharge by grant when it appears, yet when it appears not, stabitur præsumptioni donec probetur in contrarium.

Now the common law, as touching the discharge of tithes, and the forms of pleading it, standing thus; the next question is, what change the statute of 31 H. 8. of monasteries hath made in that behalf?

And I am of opinion that it hath made two main changes.

The first, that it hath by force of the clause of discharge preserved and continued certain discharges that were before the statute, that is, by bull, composition, and order, and conveyed them over to the king and lay persons, which else would have vanished and dissolved with the spiritual bodies themselves, whereunto they were annexed.

The next is, that it hath created and made one new discharge which was not before at the common law, that is, the unity of the possession of the parsonage and the land tithable in one hand.

And this was long controverted; but now is a received opinion by

the determination of the king's courts to be de lege, a discharge within the meaning of the law; as the divines say, that articles are made de fide, by the determination of the church.

But in this case of unity, four things are to be observed:

First, that it is no discharge of tithes but (as it is well observed) a discharge of the payment of tithes; and, therefore, if it be pleaded by way of discharge generally, and the jury find nothing but a perpetual unity, it is found against the pleader; and so much is agreed in Priddle and Napier's case.

It is no discharge, except it be by prescription.

If it be perpetual, yet, if it be alleged, that the abbot or his farmer paid tithes, that doth destroy the prescription, because that proves that there was no real discharge, but a non-payment by unity only: yet a unity by prescription is good prima facie; but not of itself, but in contemplation of a perfect discharge, that shall be supposed, though it cannot be found for the infiniteness and impossibility of search of things beyond memory.

Lastly, though unity perpetual be allowed, yet it is not well pleaded except you had that ratione inde they held discharged of payment of tithes time out of mind; for though the unity shall be traversed, and not that conclusion or consequent, yet that conclusion fixeth it to the statute, and answers the real and perfect discharge that is presumed under the unity, to which the unity itself is but augmentative: but yet I am of opinion, it is but a fault in form, which will be cured by a verdict or general demurrer.

1620.

Slade
V.

Drake.

Supra 236.

This discharge by unity being the only discharge that is created and made of new by this statute, all other discharges are not otherways preserved but by these words, "that the king, his heirs and "successors, and such persons, their heirs and assigns, which shall "have and hold them according to their estates and titles, be dis66 charged and acquitted of payment of tithes, as freely, and in as "large and ample manner as the said abbot had or held the same [391] "at the day of the dissolution of the same."

So, first, it is plain that this clause gives neither new discharges, nor enlarges the old; but continues and bounds them within the limits of those that were enjoyed by the abbot both by word and meaning according to the cases, tot, tanta, &c. For though unity (as hath been said) be now used for a discharge, yet it is not so for itself, but for a more perfect, which is presumed, though it appears not.

Now this being the substance and body of this clause in word and meaning, it is strange it should be moved, that out of this clause may be drawn a conceit of a liberty given to the possessors of abbey lands, to plead their discharges in other form, and with more gene

1620. rality and favour, than the abbots themselves had in those cases: against which the reasons are many.

Slade

V.

Drake.

First, the word is expressly touching the having and holding of them, not a touch nor a glance of the pleading of them, which is merely heterogeneum.

Secondly, if these words should be extended to pleading it would turn expressly against them; for then it must be understood, that they shall have the benefit of pleading in as large and ample manner as the abbots had. Which implies a negative, that it shall be in no other nor larger manner; for the rule is, that affirmatives in statutes that introduce new laws, imply a negative of all that is not in the purview.

And therefore in Amy Townsend's case, Plow. 111. it is adjudged, as it hath been since, that where one comes to a possession by a use out of an estate discontinued, so that the entry was not lawful to the cestui que use, such a possession works no remitter, because the statute appoints the possession in the same manner and form (which imports a negative), and no other as are in use.

So the statute Westm. 2. appoints that the demandant in a quod ei deforceat may vouch ac si esset tenens; if in the first action he could not vouch (as if it were a scire fac.), then cannot he vouch in the quod ei deforceat, being demandant, 14 H. 7. 18.

Thirdly, if you shall admit this exposition upon this clause, you must admit it also upon the body of the law, upon the like words, which are thus: "the king shall have and hold, to him, his heirs ❝and successors, all monasteries, and all their lands, tenements, ❝rents, &c. and in as large and ample manner as the abbots had "the same at the time of the dissolution;" so then it shall suffice [392] to plead, that the abbot was seised of a rent charge out of my land at the time of the dissolution, &c. without shewing any other title. And so of other statutes; and this kind of pleading hath the same pretence of loss of writings, of grants, of rents, reversions, and the like, and infiniteness of search, and more than the case of bulls and the like.

4. This form of pleading that lies so open and obvious in the words of the statute, and was so easy and pleasing to them that sought discharge, was never to this day amongst so many busy wits ever offered in any authentical pleading, much less received the least allowance, by the opinion of any learned or grave man; but the contrary, by the specification of the discharges, except in the case of prescription; and yet in the case of unity, though it be by prescription, it is also specified.

5. Lastly, this were to take a statute contrary to the common law, which trusted not laymen with their prescriptions, and yet now