CASES. though not grantable over, yet may become disappropriate by a But the second and more difficult point is this, viz. whether this second composition be good or no, because not confirmed by the patron and ordinary. And I conceive that it is good notwithstanding, as our case is, and that for these reasons. First, The second composition is wholly for the benefit of the prebendary and his successors, and is an enlargement of the former, because by this second composition he has an election, to take either his five marks, or his tithes in kind, whether he will; whereas, by the first composition, he is tied up to his five marks: and in such 44 E. 3. cases successors are bound, though without confirmation. 21, 22. in Octavian Lombard's case, tenant in tail charged the land with a rent-charge for a release of the right of a stranger: and held, that this shall bind the issue in tail, notwithstanding the statute of Westm. 2., 48 E. 3. 11. b. the like of a recovery in value by the tenant in tail; because the issue is at no loss by it. Perk. 17. Tenant in tail may determine his election as to so many acres, or a rent-charge, and the issue shall be bound by it. So here, no loss, but a profit accrues to the succeeding prebendary: and it is a rule in law, Co. Litt. 102. b. 341. a., Mag. Cart. 3. a. that a parson without his patron and ordinary may meliorare statum ecclesiæ suæ. And so in our case. Secondly, The second composition was made only for a further explanation of the former, and by way of superoneration, and is a surcharge upon the abbot and his successors without any diminution to the prebend: and in that case a confirmation is not requisite. If there be a composition confirmed betwixt a parson and his parishioner, by which the parishioner is to pay 5l. in lieu of his tithes for ten years; and afterwards another composition be made, whereby the parishioner agrees to pay 67. for those ten years; this second is good without a confirmation, because it is an enlargement of the former, and more for the parson's advantage than that was. 1664. Ingleby V. Wyvell. Thirdly, The same may be proved by the parallel betwixt the [520] parson of a church and an infant: for our authorities resemble these two to one another; as appears Co. Litt. 341. a. Mag. Cart. 3. a. Ecclesia infra ætatem existit, et fungitur vice minoris. Now Co. Litt. 337. Minor statum suum meliorare potest, non deteriorare. And, therefore, if an infant submit to an award, which is made for his advantage, he shall be bound by it. 13 H. 4. 12., 10 H. 6. 10. So, if an infant makes partition, or assigns dower, if it be equal and just, he shall be bound by it. The like of a parson. Ii4 1664. Ingleby V. Wyvell. A third thing is this, viz. admitting that the second composition is good, whether or no it be now possible for it to be performed, because no election can now be made in form as directed by the composition, because now the abbey is dissolved, and the corporation extinguished; and the prebend also, with all its possessions, is given to the crown; the one by 31 H. 8., the other by 1 E. 6. And yet I conceive all this is no hindrance, but that tithes in kind may be recovered. First, As for the dissolution of the abbey and extinguishment of the corporation, that will create no impediment, because it comes by the act of the corporation itself (to wit) by their surrender; for the act of 31 H. 8. vests nothing in the king, but what the abbies themselves surrendered since the 27 H. 8. as appears by the statute; and it is a rule in law, that res inter alios acta alteri nocere non debet, sed prodesse potest. If a lessee for years charge his estate with a rent, and then surrender, yet the charge continues as long as the term would have lasted, if it had been suffered to run out in time. 5 H 5. 10. Secondly, As for the accession of the prebend to the crown by the statute of 1 E. 6. it is there enacted, that all tithes and hereditaments appertaining to any hospital given to the king, shall be in him in as ample manner as in the hospital, and as if they had been particularly named: and it is also enacted, that the king shall enjoy all profits, commodities, &c. appertaining to any hospital by any assurance, composition, or otherwise. So that all is preserved for, and reserved to, the king, that did appertain to any hospital. And unity of possession in the king, of the abbey and the prebend, breaks no squares: for tithes, and a composition for tithes, are collateral to the land, and revive by severance, as appears in 11 Rep. 23. Harpur's case: and where there can be no election, there, the party that is to have the benefit of it, shall have and enjoy the thing for which the recompence is given, without any [521] election. Southwell and Ward's case: M. 33 & 34 Eliz. Rot. 229. per Popham, Fenner, and Clinch, in manuscript, and printed in Popham's Rep. 91. and adjudged 36 & 37 Eliz. The prior of St. Faith's, 13 E. 4. made a grant of 200 faggots or focals to the hospital of St. Giles's in Norwich, or of 20s. in lieu of them, at the election of the hospital, with a clause of distress, reasonable notice of the election being given; and the hospital covenanted to give notice in the church belonging to the hospital. Afterwards the hospital came to the crown, per 1 E. 6. who granted over the hospital with the said rent, and the grantee distrained for the focals. It was there adjudged, 1st, that the focals pass by the grant of the hospital, and the rent of 20s. though the focals are not expressed in the grant: 2dly, that there needs no election, because the thing granted was the focals, and the 20s. are but by way of recompence for it, and as an allowance and satisfaction for 1664. Ingleby V. Wyvell. Thirdly, If an election be necessary, the plaintiff has made his election; for he has preferred his bill for tithes, and brought the cause to a hearing; which is the same thing as if he had declared [522] at law; and that does amount to an election; as when a man brings a writ of annuity, and counts upon it, 5 H.7. 33. F. N. B. 152. or, the bringing of a writ of dower, and counting upon it, 12 E. 2.. Dower 158. and the bringing of an assize amounts to a continual claim, 9 E. 2. Age 141. So I conclude, that the second composition is a good composition; that it remains in force for the benefit of the prebendary, and all claiming under him; and that no election is requisite, quia vana et inutilis; and that if an election must be made, the plaintiff here has made his election: and I prayed judgement for the plaintiff. Afterwards, the court delivered their opinions, that the second composition did not affect the successors of the prebendary, and therefore that the abbot was not bound by it. The reason seems to be, because, by the first composition, the prebendary and his successors were bound only quamdiu propriis manibus, &c. and by the second composition the five marks go in recompence of all, 1664. Ingleby V. Wyvell. Hops are in a small tithe, and there whether in propriis manibus, or in the hands of the tenants. But to this it may be answered, that it is still at the successor's election to take the five marks, or tithes in kind, and therefore that he is at no prejudice. The court likewise held, that the power of election is gone, because it cannot now be made according to the composition: and that therefore, the first composition should stand quoad terras in propriis manibus; and for the others, that tithes in kind might be taken, as before; for that the election is destroyed. And judgement was given pro defendente. (a) M. 23 Car. II. A.D. 1671. Scac. Risden, clerk, v. Crouch. [Decree Book, 26th Oct. 1 Wood. 117.] THE bill stated, that the plaintiff, for four years past, is and their nature hath been vicar of the parish of Ashford, in the county of Kent, and ought to have had and received all manner of tithes and church duties, yearly arising, &c. within the said parish, due to the vicar; that the defendants for the same time have enjoyed several messuages, lands, tenements, and several hop-grounds planted with lieu of the hops, within the said parish, and have picked and carried away the fore a cus tom to pay 6s. 8d. an acre to the rector, in tithe of hops, the vicar being endowed with the small tithes is bad. 1 Sid. 443. 1 Ventr. 61. 2 Keb. 612. same, without setting out or rendering the tithe thereof, or any thing in lieu, and had several other titheable matters and things, the tithe whereof ought to have been answered to the plaintiff, but that they refused, saying, that the plaintiff had no right to the tithe of hops. The defendants admitted their inhabitancy, and set forth the S.C. quantities and values of their hops, and then stated, that there is *[523] and hath been an ancient custom, time out of mind, in the said parish, that every planter of hops shall pay to the parson of the said parish, 6s. 8d. for every acre in lieu of the tithe thereof, and that the same of right belongs to the parson of the said parish, who hath constantly, according to such custom, received the same. The court declared, that there can be no such custom for the payment of a modus, in lieu of the tithe of hops, to the parson, for that hops, being in their nature small tithes, do belong to the vicar. The court therefore ordered, that the defendants shall pay to the plaintiff the values of the tithes of their hops which they had in the years aforesaid, according to the values set forth in their answers, (a) Note, this action was directed by the court of exchequer upon a bill filed by the plaintiff, as proprietor of the prebend of Studley, for an ac count of the tithes of Stenningforth, See 1 Wood's Decrees, 24. 73. CASES. viz. the defendant Crouch 71. for the two years mentioned in the bill, and the defendant Lounds, 20s. for 1669; the plaintiff being willing to accept thereof accordingly. (a) Tr. 26 Car. II. A. D. 1674. Conant, clerk, v. Greaves, Bart. [Decree Book, 6th July. 1 Wood. 140.] THE bill stated, that the plaintiff Conant had been lawful rector of Beeding, in the county of Sussex, for five years past, and was entitled to all the tithes within the said parish that had been accustomed to be paid; that the defendant was owner of certain lands called the Forest of Saint Leonard's within the said parish, and ought to pay all the great and small tithes arising therein to the rector, or the best buck and doe yearly, at every season, in lieu of the tithes for the said forest; that the defendant, for five years past, had refused to pay any tithes for the said forest; that the plaintiff Turnor, as tenant to the said rector, ought to have the best buck and doe yearly, at every season, paid to him in specie, the same being worth ten pounds per annum, in full satisfaction for the tithes arising yearly out of the said forest. The defendant confessed, that he was owner of the Forest of Saint Leonard's; and that before and since the plaintiff was rector of Beeding, he had given orders to his keepers or tenants of the said forest that they should kill the tithe deer when demanded; and that the reason they had not, for two years past, been paid was, that the plaintiff refused to pay the keeper's fees. The court ordered, that the defendant should forthwith pay to the plaintiff Turnor the several bucks and does in arrear in specie, due and owing, as other bucks and does are usually paid, upon warrants. And it was further ordered, that the defendant should, for the future, pay and deliver to the plaintiff Turnor, the lessee, during the term of his lease, and after the expiration thereof to the rector, a buck and doe yearly of forest deer, in specie, in lieu of the tithes of the said forest, at the respective seasons, for the time to come, as other bucks and does were usually paid and delivered, upon warrants, without costs. M. 27 Car. II. A. D. 1675. Scac. Turner v. Weedon and others. [Decree Book. 1 Wood. 150.] THIS was a bill by the plaintiff, as rector of Soulderne in the county of Oxford, for an account of all tithes, predial, personal, and mixed. (a) See Knight v. Halsey, infra, 1531. and the cases there cited. 1671. Risden, clerk, V. Crouch. [ 524 ] The tithes cannot be withholden the keeper's payment of fees. of a forest for non |