1631. Walrick v. and Lewis Rich. Crop ton. vicarage of the church of Chebsey aforesaid, and then held and occupied, and still holds and occupies 14 acres of glebeland in Chebsey aforesaid, to the vicarage of the church of Chebsey aforesaid then and still belonging: the said Richard afterwards (to wit) on the said 1st day of July, in the 4th year aforesaid, at Chebsey aforesaid, in the county aforesaid, in consideration that the said James and Thomas had then and there demised to the said Richard all the tithes of grain then growing and arising from and upon the glebe land of the vicarage of the church of Chebsey aforesaid, for the sum of 221. to be therefore paid to the said James and Thomas, undertook and then and there faithfully promised the said James and Thomas that he the said Richard the said sum of 221. for the tithes of the said grain then growing and arising from and upon the said glebe land, of the said vicarage of the church of Chebsey aforesaid, would well and truly pay to the said James and Thomas when he should be thereto afterwards requested, &c. The defendants pleaded not guilty: it was found for the plaintiffs, and judgement was given and entered for [471] them. In which case these two points were resolved-1st. If a vicar be generally endowed of part of the glebe of the parsonage, in that case the vicar shall not pay tithes to the parson, quia decimas ecclesia ecclesiæ reddere non debet. But, if the endowment be special, that the vicar shall have so much of the glebe paying to the parson the tithes, this special composition shall bind the vicar: which composition evidenced to a jury by constant payment of tithes to the parson by the vicar shall be intended, though the composition itself be not shewn. 2. If a man lease tithes for years by deed indented, reserving 20s. annually, action on the case does not lie for these 20s. but debt: for though it be not properly rent, but in the case of the king, Dy. 876. yet it is a sum in gross of so high nature that no action on the case lies for it, but debt upon the contract. 5 Co. 3. a. Jewell's case. But, if it be without deed, then this action well lies: for it is not properly a lease, because it cannot be without deed, being of tithes. Dy. 117. pl. 72. nor is it an annual sum in gross in the nature of rent; but it is only an executory contract on a reciprocal assumpsit, which shall be intended in our case. (a) Hil. 6 Car. A. D. 1631. B. R. Rot. 132. Robinson v. Jo. Brooke. [Yelvertonian MSS.] UPON evidence at bar it was agreed, if the vicar prescribes or shews a composition that the parson used to have only the tithe of corn, there, the vicar shall have the tithes of rape-seed and other (a) Sanders v. Regal, infra, 537. new tithes, as wood, hops, &c. but, if the vicar have only the small 1631. tithes, the parson shall have them, and not the vicar. [This case is thus reported by Sir O. Bridgeman.] P. 7 Car. B. R. Robinson v. Jo. Brooke. Rape seed is small tithe and ROBINSON, the vicar, brought an action on the statute of 2 E. 6. for subtraction of tithes against Brooke and Wood, lessees of the parson of the same church, which was in Kent, and declared, that belongs to the vicar, from time whereof, &c. had all the small tithes, and that the vicar. the parson had no other tithes but those of corn, and for subtraction of all the rape-seed which amounted to 407. this action was brought, and issue being joined upon nil debet, the evidence was given at the bar. And Henden serjt. for the defendants, said, that [472] rape-seed was but lately used in Kent, within these twenty years, and therefore could not be within the prescription. It is also in the nature of grain, because the land is ploughed for it, and it is sown as corn. But per cur. (absente Whitlock,) the vicar shall have it, because it shall be intended upon the first composition that the parson should have only the corn, and rape is not corn, but it shall be among the small tithes, and the prescription being for those, this shall be included. And so of hops, and woad for dying, which are of late use. M. 7 Car. A. D. 1631. In Scac. 2. The Suit lies on side of the the equity exchequer tithes or a either for in one bill. THE farmer of the impropriate rectory of Pancras, and the vicar of that church join in an English bill in the exchequer chamber, against several owners of several lands in Kentish Town, which is within that parish, and suggest divers moduses to be paid, some of them to the parson, and some to the vicar, and that the defendants modus. But parson have refused to pay them to the farmer of the parish and to the and vicar vicar, and that they have preferred this bill to avoid multiplicity of cannot join suits. The defendants demurred to the bill. 1. It was agreed, that a suit for tithes or a modus may be in this court. second doubt was, whether the farmer of the parsonage and the vicar can join in one suit for their several duties; or, whether they ought to prefer several bills. And per Densam and Weston, barons They ought to prefer several bills, because the inheritances are now several and divided, though the vicarage originally was derived out of the parsonage: but it seemed to Davenport, C. B. that they might join in a bill in equity. But afterwards in his absence the demurrer was allowed, and the plaintiffs were ordered to prefer several bills. 1632. Lockin V. Davenport. grass before H. 7 Car. A. D. 1632. B. R. Lockin v. Davenport. [MSS. Yelvertonian.] A MAN sold his grass to A. before it was cut down. The parson Vendee of sued the vendor in the spiritual court, who pleaded the sale in that court, which plea not being allowed there, he had a prohibition upon the statute of 2 E. 6. because the owner of the grass ought to discharge the tithe. (a) it is cut down must pay the tithe. [473] Qu. Whe ther a custom to take basket of the first cutting of woad in discharge of the tithes of cutting be his Tr. 9 Car. A. D. 1633. B. R. A PROHIBITION was moved for by Calthorpe, who had drawn suggestion according to the direction of the court. It consisted every tenth of two points, 1. that by the law of the land no tithes shall be paid for the second cutting of woad: 2. that great costs are requisite to the planting and sowing of the land with woad, and gathering it in baskets after it is cut; in consideration whereof a custom has always prevailed, that the parson shall take the tenth basket of the first cuttings for all the tithes due for the whole year. And he cited Co. Entr. 459. Baxter and Hope's case (b), as a precedent in point. Richardson C. J.- For the aftermath of grass no tithes are due by the law of the land, and many prohibitions have been granted upon that point, quod fuit concessum. the second good, in consider ation of the expence and trouble attending the cultivation and gathering of it. Supra 223. if And Calthorpe cited the case of Aubrey v. Johnson (c) 43 Eliz. to be so resolved: but Richardson C. J. said, that perhaps there might be a difference between the case of aftermath, and this of woad. you may prescribe in the custom to pay the tenth of the first cutting in discharge of the whole, though this may be a good custom, yet the cutting must not be fraudulent, you must not cut only a small part at the first, and leave the greater part, and that of the greater value for the other cutting. Jones J. to Calthorpe. How can you allege in your custom that woad has not been used in England time out of memory? Calthorpe answered, it is good enough, as in the case of saffron. Berkley J.-The case of lattermath differs much from that of woad; for the tithes of the aftergrass are worth little or nothing, but the second cutting of woad is commonly better than the first. (a) Grant v. Hedding, Hardr. 380. infra, 515. Gibbs v. Wybourne, Sir William Jones, 410. infra, 501. Taswell v. Athill, Raym. 75. infra, 537. (b) 2 Brownl. 30. 2 Bulstr. 239. Co. Entr. 459. (c) The case of Johnson v. Aubrey, was as follows. Aubrey brought a prohibition in the king's bench against Johnson, parson of Burghfield in Berkshire, who sued him in the spiritual court for the tithes of the aftermath of grass: and the sugges. tion in the prohibition was, that the occupiers of 1633. Andrews V. Lane. * [374] The court appointed the case to be argued the next week. It was therefore afterwards argued by Noy, the king's attorney general, * that no prohibition should be granted. The suggestion, he said, consisted of two parts, 1. that by the law of the land no tithes are due of the second cutting, because no tithes are to be paid for the same land in one year: 2d. it suggests a particular custom, that in respect of the great costs and charges which the farmer sustains in the buying of the seed, and ploughing the land for it, and in respect that when it is ripe, and, that then maturis temporibus anni he gathers it, and buys baskets to put it in, and purges and cleanses it from the dirt, and that he does all this at his own cost, therefore that by reason of the premises and by the law of the land he ought to be discharged. Now this is merely a prescription in non decimando, and no such custom is allowed by the law of the land. But the contrary is frequent about London, where the same land is often twice sown in a year, for instance, at one time with peas, and at another with carrots, &c. and yet tithes are paid for both. They might as well prescribe, that if a man gather part of his apples at one time, and part at another, that he should be discharged of tithes of the second gathering. So, if the osiers which grow here on the banks of the Thames are cut down, tithes are paid as soon as they are cut. For if there is a double increase, why should there not be double tithes? And as to the case of aftermath which has been objected, clearly, aftermath is not discharged of tithes by the law of the land; but a difference has sometimes been taken, that upon a collateral prescription to give to the parson a reciprocal recompence, as to make the first math into perfect hay, when of right they need only make it into grass cocks, this will be a good prescription to be discharged of the tithes of the aftermath; but without such a prescription or recompence, it is not discharged. But here that which is shewn, that the farmer puts the woad into baskets, is no more than he ought to do of common right, and than is necessary for the severance of it from the nine parts; for he could not suffer it to lie upon the land to be severed. But, if he had prescribed, that from time whereof, &c. they have used, in consideration that they dried the first cutting, and ground it in the mill, and paid it in the ball, to be discharged of the tithes of the second cutting; that would be perhaps a good prescription: for he would do more than of common right he need do. In the 41 of El. in lord Roper's case, in the isle of Thanet, where tithes were paid of apples, and afterwards in the same year the apple trees were shredded and cut, and sold, it was adjudged, that new tithes were to be paid for the trees. In the case of aftermath, the second cutting is worth little or nothing; but in the case of woad, the second cutting is worth more [475] than the first; and inasmuch as the second cutting is but an ex 1633. Andrews v. Lane. crescence of a new thing out of the same root, I conceive that new tithes are due for it. Richardson C. J. Jones and Berkeley seemed against the prohibition, and Jones said, that woad being within time of memory first used in this realm, he did not see how they could prescribe in this manner respecting it, so that he gave Calthorpe a further day. It was afterwards argued by Beare of the Middle Temple in support of the prohibition. As to the case of lord Roper, he said, cited by Mr. Attorney, I answer that the apple-trees there were dead Supra 473. trees. He then cited Baxter and Hope's case. As to the case of corn and hay, and afterwards of carrots upon the same land, as here about London, I answer, that there are several crops; but here it is but part of one and the same crop. As to the osiers upon the river Thames, I say that the reason of that is in respect of the covin. Then in the case at bar, no tithes should be paid of the second cutting for two reasons: 1st. because you shall not have tithes twice in one year of the same thing; and upon that ground the case of lattermath has been often determined: 2d. because here is more done than the parishioner ought to do of common right, and therefore it Supra 432. is a good modus decimandi. In Ellis's case, in 16 Ja. in consideration of putting the hay of the first math into windrows, and tedding and shaking it, the farmer prescribed to be discharged of the tithes of the second math; and held good; and there it was agreed, that no tithes shall be paid of stubble after tithes have been paid of the crop. So, it was resolved in this court, that where corn is severed, and tithes are paid for it, and afterwards grass grows, and beasts feed upon the same land, that no tithes shall be paid either for this grass, or the pasturage. In Tr. 7 Car. C. B. Rot. 1449. a custom to pay the tenth pound of wool was holden a good modus decimandi, because the owner is not bound of common right to weigh it. [Jones J. this last case was left doubtful.] In Gibson and Trot's case, 15 Ja. B. R. one prescribed that in consideration that he bound up his corn in shocks, he hath always used to be discharged of the odd shocks, if there were any; and held a good prescription. [Richardson C. J. doubted of this.] The cases cited are still stronger than this for here this woad is part of the same crop. And as to the objection that woad has not been in England from time whereof, &c. and therefore there can be no prescription in a modus decimandi for it; I answer, that woad has been common here for 50 or 60 [ 476] years, and then I say if they have used to pay the tithes of it in this manner but ten years, that is a good prescription for the church in the spiritual court upon the modus decimandi, and therefore if the farmers shall not avail themselves of the same prescription, they will be twice charged, once with tithes in kind, and again according to the custom. - Calthorpe said that they could prove that |