has been a constant annual payment for time imme- established by act of parliament. decimando. 77. A prescription de non decimando is a claim to be III. Or de non entirely discharged from tithes, and to pay no compensation for them. This may be a privilege annexed either to the person holding the lands; or to the lands themselves. 78. The King being persona mixta, is not only capable of having tithes, but may also prescribe to be discharged from the payment of tithes; therefore, lands lying within a forest, and in the hands of the King, do not pay tithes, although they are within a parish. But this privilege only extends to the King's lessee, not to his feoffee. Cro. Eliz. 511. Hertford v. Jones, 387. 79. Spiritual persons, or corporations, being capable of having tithes in pernancy, may prescribe to be discharged generally; so that no tithe shall be paid of their lands, nor any recompence for them. Besides, 4 Rep. 44 a. it is a maxim of law, that ecclesia decimas non solvit ecclesiæ; and a spiritual person may prescribe de non decimando, for himself, his farmers, and tenants, and also for his copy holders. For, by this means, it is to be presumed that the spiritual person has greater fines and rents. 80. The rector or parson of a parish is not liable to the payment of tithes to the vicar, nor the vicar to the rector; and a lay rector is also exempted from paying tithes to the vicar out of the glebe, as long as he holds it in his own hands; but upon the death of the spiritual or lay rector, or of the vicar, his executor is liable to the payment of tithes out of the growing crop. 81. A prescription de non decimando may also be annexed to the land itself, though in the possession of lay persons: but this can only arise from the following circumstances. Crouch v. Frier, Cro. Marston, Cro. Eliz. 479. 578. 2 Comm. 32. Hob. 309. 2 Comm. 32. Lamprey v. Spiritual persons, or corporations, were always capable of having their lands totally discharged of tithes by various ways.-1. By real composition. 2 By papal bulls of exemption. 3. By unity of possession; as when the rectory of a parish, and the lands in the same parish, both belonged to a religious house, those lands were discharged of tithes by this unity of possession. 4. By prescription; having never been liable to tithes, by being always in spiritual hands. 5. By virtue of their order; as the Knights Templars, Cistercians, and others; whose lands were privileged by the Pope with a discharge of tithes.. 82. These exemptions from tithes would have ceased upon the dissolution of the abbeys, and the lands become again subject to tithes, were it not enacted by the statute 31 Hen. 8. c. 13. s. 21., (a) that all persons who should come to the possession of the lands of any abbey then dissolved should hold them free and discharged of tithes, in as large and ample a manner as the abbeys formerly held them. And Sir W. Blackstone says, that from this original have sprung all the lands, which, being in lay hands, do at present claim to be tithe-free. For, if a man can shew his lands to have been such abbey lands, and also immemorially discharged from tithes, by any of the means before mentioned, this is now a good prescription de non decimando. But he must shew both these requisites; for abbey lands, without a special ground of discharge, are not discharged of course; neither will any pre (a) This statute applies only to the greater monasteries. It has been held that lands which were held discharged of tithes before time of memory, by one of the alien priories, and coming to the Crown on their suppression, were granted to one of the greater monasteries, in whose hands they remained till the dissolution, were no longer exempt. Penfred v. Groome, decree of the Exchequer, affirmed by the House of Lords. See 2 Jac. and Walk. 534., and Page v. Wilson, 513. In the latter case the lands had been granted to the monastery by the grantee of the Crown. In both cases the lands had not paid tithes since the dissolution. scription de non decimando avail in total discharge of tithes, unless it relates to such abbey lands. 83, This privilege only extended to the lands of the religious houses, quamdiu propriis manibus excoluntur ; not when in the occupation of their lessees or farmers. And it was formerly held that this exemption applied only to those persons who had an estate in fee simple or fee tail in the land, not to tenants for life: but it has been resolved that a tenant for life, under a settlement, is entitled to the exemption. It was in Scac. 84. A person was tenant for life, under a settlement, Hett v. Muds, of lands which were formerly part of the possessions of 1799. Gwill. the Cistercian order, and by that means exempt from 1515. tithes while in the manurance of the owner. contended that the tenant for life had not such a quantity of interest as would support that privilege : that to entitle the lands to that exemption, the person occupying them must be owner of the inheritance; he must have the same estate in him which the monastery had. In the case of Wilson v. Redman, the court held that tenant for life or years was not within the statute: but that tenant in tail, who had an estate of inheritance, was discharged quamdiu propriis manibus, &c. Lord Ch. B. said, it was admitted that a tenant in tail was entitled to the exemption claimed: but it was argued that a tenant for life, under a settlement, was not. It was said that the tenant must hold the lands as the monastery held them, else the privilege could not attach. But it was impossible that the lands could now be holden precisely in the same manner as they were holden by the monastery. The monastery had them to them and their successors. Now a man had them to him and his heirs. But a fee simple may be divided into portions, into different estates for life, in tail, and remainder in fee. Where would be the difficulty to say, that the tenants of each portion should have the benefit as they succeed. The case of Wilson v. Redman had been cited: but from an extract from the IV. Act of Parliament. Non-payment of tithes can not be pleaded against a lay rector. 2 Rep. 44. b. Hob. 295. Bury Corpora answer in that case, with which he had been furnished, the parties there appeared to have had a fee simple; and therefore, that not being a case in which it was necessary to decide the point, it could not be considered of any authority. He could not see any reason why a tenant for life should be excluded from the benefit, any more than a tenant in tail; who, it was agreed, was exempt. There seemed to be no reason why all the component parts of the estate should not be exempt, as they severally came into possession. The Court decreed unanimously, that the tenant for life was exempt. 85. Lands may, and are now frequently exempted from the payment of all tithes, by acts of parliament. Thus, in many of the modern inclosure acts, the lands inclosed are for ever freed and discharged from the payment of all tithes; and a portion of land is allotted to the spiritual or lay rector, or to the vicar, their successors and heirs, in lieu and satisfaction of them. In other acts of this kind a corn rent is substituted in the place of tithes. (a) 86. The doctrine that mere non-payment of tithes, though for time immemorial, does not amount to an exemption, was established in favour of the church. For in all other cases long acquiescence creates a title. Therefore when lay persons became capable of holding tithes, this principle ought not to have extended to them, because they are not within the reason of it, But still it has been held in several cases that a general prescription de non decimando can no more be set up against a lay rector or impropriator, than against a spiritual person. 87. Upon a bill for small tithes by a lay impropriator, tion v. Evans. it was proved by several witnesses that they never knew small tithes paid for. It was contended that in the case Com. 364. Bunb. 284. (a) Vide Stockwell v. Terry, 1 Ves. 117. Moncaster v. Watson, 3 Burr. 1375. Steele v. Mans, 5 Barn. and Ald. 22. of a lay impropriator, the defendant might say, in bar of the demand of tithes, that no tithes had ever been paid or demanded for these lands. And although there was no express determination on the point; yet many of the judges were of that opinion. The court held the defence bad. 88. A bill was brought in the Exchequer by a lay impropriator, for tithe of hay and potatoes. The defence was that no tithe had ever been paid for the land, nor any modus or composition. It was said for the defendant, that the reason why a layman should not prescribe in non decimando, was founded on principles which did not hold since tithes were lay inheritances. That now, from length of time and possession, there was the same reason to presume a grant from the lay impropriator, in this case, as in cases of other inheritances. That this was not used as a prescription, but as an evidence of right, and to include a presumption of a grant. That before laymen were capable of tithes, an exemption was not sufficient to arise from non-payment of tithes only: but since it was quite otherwise; and possession in the hands of a layman was as good evidence of a right to tithes as of any other right. Lord Ch. B. Parker was of opinion that a layman could not prescribe in non decimando against a lay impropriator, no more than against a spiritual one. It had been said that the statute of Hen. 8., which made tithes lay inheritances, had altered the case: but as a prescription from that time would not be good, consequently, that statute could not create a right by prescription. That this doctrine was not inconvenient; for grants of tithes might be preserved by enrolment; therefore were not likely to be lost, if due care was taken of them. That an act of parliament was attempted to remedy this by Sir George Heathcote, about fifteen years before, which miscarried. Baron Carter was of the same opinion: but Baron Reynolds doubted.. |