No. 3.

the Hands of the Owner. The Requisites to such Exemption are, that the Union must have been, 1st, founded upon legal Title; 2d, equal with Respect 32 H. VIII. c. 13. to the Quantity of Estate; 3d, free from the Payment of any Tithes in any Manner; 4th. immemorial, and such immemorial Possession must be proved, and is not to be presumed.-Cluvill v. Oram, Gwill. 1354-but see Ingram v. Thackstone, infra. II. In Respect of Order.-Religious Orders were, by Pope Pascal II. exempted generally from Tithes of Lands dum propriis manibus excoluntur. This Exemption was confined, by Pope Adrian IV. to the Orders of Cistercians, Templars, and Hospitallers, and was afterwards endeavoured, by Innocent the Third, to be extended to the Premonstratenses, but the Extension has not been allowed in this Country. By the Council of Lateran, în 1215, received as Law in England, the Exemption of religious Houses was restrained to the Lands of which they were at that Time in Possession. The Cistercians afterwards obtained Bulls for the Exemption of Lands in the Hands of Tenants. Such Exemptions were prevented for the future by Statute 2 Henry IV. c. 4-but are valid as to Privileges then existing. Lands, in Respect of which the Monasteries were entitled to Exemption, ratione ordinis, are exempted, although at the Time of the Dissolution they were in the Hands of Tenants, and as such titheable-Cowley v. Keys, Gwill. 1308-but it is otherwise with Respect to Lands which, previous to the Dissolution, had been granted in Tail.-Farmer v. Shereman, Hob. 248, Gwill. 431. The Exemption extends in other Cases only to Lands in the Hands of the Owners. It may be claimed by a Tenant in Tail-or by a Tenant for Life, under the Limitations of a Settlement-Hett v. Meeds, Gwill. 1515-but not by a Lessee for Life.Adm. ibid. An absolute, and not a qualified Discharge, was presumed, in Favour of Lands, that had never paid Tithes, although belonging to a Cistercian Abbey, and never in Lease, and although Tithes had been paid for other Part of the same Farm, when in the Hands of Tenants.-Ingram v. Thackstone, Gwill. 819.

Lands exempted by the Statute are not chargeable, although they have paid Tithes ever since it passed.-Earl of Clericourt v. Lady Denton, Gwill. 363. Lands exempt under this Statute are not rendered liable by the general Provision of an inclosure Act, that Tithes should be paid from the new Inclosure, notwithstanding any Modus or Exemption in other Parts of the Parish.-Pratt v. Hopkins, 3 Bro. P. C. 512, Gwill. 704.

Lands of the Order of St. John, of Jerusalem, which came to the Crown by Stat. 32 Hen. VIII. c. 24, are exempt under the Authority of this Act.See the several Cases cited, Toller, 175.

No. 4.

32 Henry VIII. c. 7.-For the true Payment of Tithes and Offerings.

WHERE divers and many Persons inhabiting in sundry Coun

32 H. VIII. c. 7.

ties and Places of this Realm, and other the King's Domi- This Act is con⚫ 'nions, not regarding their Duties to Almighty God, and to the King firmed and en'our Sovereign Lord, but in few Years past more contemptuously and larged by 2 & 3 commonly presuming to offend and infringe the good and wholesome Edw 6, c. 13 18 Ed. 3, st. 3, Laws of this Realm, and gracious Commandments of our said Sove- c. 7. reign Lord, than in Times past hath been seen or known, have not 45 Ed. 3, c. 3. letted to subtract and withdraw the lawful and accustomed Tithes of 5 H. 4, c. 11. Corn, Hay, Pasturages, and other Sort of Tithes and Oblations 'commonly due to the Owners, Proprietaries and Possessors of the 'Parsonages, Vicarages, and other Ecclesiastical Places of and within the said Realm and Dominions, being the more encouraged there'unto, for that divers of the King's Subjects, being lay Persons, having Parsonages, Vicarages and Tithes to them, and to their Heirs, or to them, and to their Heirs of their Bodies lawfully be'gotten, or for Term of Life or Years, cannot by the Order and

No. 4.

32 H. VIII. c. 7.

2 Inst. 612.

Tithes shall be

Parish where they be duc.

Course of the Ecclesiastical Laws of this Realm, sue in any Ecclesiastical Court for the wrongful withholding and detaining of the said Tithes or other Duties, nor cannot by the Order of the Common Laws of this Realm have any due Remedy against any Person or • Persons, their Heirs or Assigns, that wrongfully detaineth or withholdeth the same; by Occasion whereof much Controversy, Suit, Variance and Discord is like to insurge and ensue among the King's Subjects, to the great Detriment, Damage and Decay of many of them, if convenient and speedy Remedy therefore be not had and ' provided.

II. Wherefore it is ordained and enacted by our said Sovereign Lord the King, with the Assent of the Lords Spiritual and Temporal, paid according to and the Commons, in this present Parliament assembled, and by the Custom of the Authority of the same, That all and singular Persons of this his said Realm, or other his Dominions, of what Estate, Degree or Condition soever he or they be, shall fully, truly and effectually divide, set out, yield and pay all and singular Tithes and Offerings aforesaid, according to the lawful Customs and Usages of the Parishes and Places where such Tithes or Duties shall grow, arise, come or be due; and in Case that it shall happen any Person or Persons, of his or their ungodly or perverse Will and Mind, to detain and withhold any of the said Tithes or Offerings, or any Part or Parcel thereof, then the Person or Party, being ecclesiastical or lay Person, having Cause to demand or have the said Tithes or Offerings, being thereby wronged or grieved, shall and may convent the Person or Persons so offending before the Ordinary, his Commissary, or other competent Minister, or lawful Judge of the Place where such Wrong shall be done, according to the Ecclesiastical Laws; and in every such Cause or Matter of Suit, the same Ordinary, Commissary, or other competent Minister or lawful Judge, having the Parties or their lawful Procurators before him or them, shall and may by Virtue of this Act proceed to the Examination, Hearing and Determination of every such Cause or Matter ordinarily or summarily, according to the Course and Process of the said Ecclesiastical Laws, and thereupon may give Sentence accordingly.

Cro. El. 607.

The Offender con

vented before the

Ordinary.

The Appellant

Party.

Cro. El. 178.

III. And in Case that any of the Parties, for any Cause or shall pay Costs of Matter concerning that Suit, do appeal from the Sentence, Order and Suit to the other definitive Judgment of the said Ordinary, or other competent Judge, as is aforesaid, then the same Judge by Virtue of this Act forthwith upon such Appellations made, shall adjudge to the other Party the reasonable Costs of his Suit therein before expended; and shall compel the same Party Appellant to satisfy and pay the same Costs so adjudged by compulsory Process, and Censures of the said Laws Ecclesiastical, taking Surety of the other Party to whom such Costs shall be adjudged and paid, to restore the same Costs to the Party Appellant, if after the principal Cause of that Suit of Appeal shall be adjudged against the same Party to whom the same Costs shall be yielden; and so every Ordinary or other competent Judge Ecclesiastical, by Virtue of this Act, shall adjudge Costs to the other Party upon every Appeal to be made in any Suit or Canse of Subtraction or Detention of any Tithes or Offerings, or in any other Suit to be made for or concerning the Duty of such Tithes or Offerings.

be bound by two

IV. And further be it enacted by the Authority aforesaid, That The Offender shall if any Person or Persons, after such Sentence definitive given against Justices of Peace them, obstinately and wilfully refuse for to pay their Tithes or Duties, to obey the Ordi- or such Sums of Money so adjudged, wherein they be condemned for See 4 Bur. 2095. the same, that then two Justices of the Peace for the same Shire,

nary's Sentence.

whereof one to be of the Quorum, shall have Authority by this Act, upon Information, Certificate or Complaint to them made in Writing

No. 4.

by the said Ecclesiastical Judge that gave the same Sentence, to cause the same Party so refusing, to be attached and committed to the next 32 H. VIII. c 7. Gaol, and there to remain without Bail or Mainprise till he or they shall have found sufficient Sureties to be bound by Recognizance or otherwise, before the same Justices, to the Use of our said Sovereign Lord the King, to perform the said definitive Sentence and Judgment. V. Provided always, and be it enacted by the Authority aforesaid, That no Person or Persons shall be sued, or otherwise compelled of Tithes. to yield, give or pay any Manner of Tithes for any Manors, Lands, Co. pl. f. 454. Tenements or other Hereditaments, which by the Laws or Statutes of 2 & 3 Ed. 6, this Realm are discharged, or not chargeable with the Payment of c. 13, §. 4. any such Tithes.

Lands discharged

London.

2 Co. 44.

VI. Provided also, and be it enacted by Authority aforesaid, That this Act nor any Thing therein contained shall in any wise bind The Inhabitaute of the Inhabitants of the City of London, and Suburbs of the same, for to pay their Tithes and Offerings within the same City and Suburbs otherwise than they ought or should have done before the making of this Act; any Thing in this Act contained to the contrary notwithstanding.

VII. And be it further enacted by the Authority aforesaid, That Recoveries may be in all Cases where any Person or Persons which now have, or which had, and Conveyhereafter shall have, any Estate of Inheritance, Freehold, Term, ances made 112 Right or Interest, of, in or to any Parsonage, Vicarage, Portion, of Tithes, as or Temporal Courts, Pension, Tithes, Oblations or other Ecclesiastical or Spiritual Profit, Lands which now be, or hereafter shall be made Temporal, or admitted to Dyer 83, pl. 77. be, abide and go to or in Temporal Hands and Law Uses and Profits Cro. El. 607, by the Law or Statutes of this Realm, shall hereafter fortune to be 844. disseised, deforced, wronged or otherwise kept or put from their law- Co. Lit. 152, 2. ful Inheritance, Estate, Seisin, Possession, Occupation, Term, Right or Interest of, in, or to the same, or of, in, or to any Parcel thereof, by any other Person or Persons claiming or pretending to have Interest or Title in or to the same; that then in all and every such Case or Cases, the Person or Persons so disseised, deforced, or wrongfully kept or put from his or their Right or Possesion as is afore rehearsed, their Heirs, Wives and such other to whom such Injury and Wrong shall be done or committed, shall and may have their Remedy in the King's Temporal Courts, or other Temporal Courts, as the Case shall require, for the Recovery, Getting or obtaining of such Inheritance, Estate, Freehold, Seisin, Possession, Term, Right or Interest, by Writs original of Præc' quod reddat, Assise of Novel disseisin, Moridance', Quod ei deforciat, Writs of Dower, or other Writs original, as the Case shall require, to be devised and granted in the King's Court of Chancery, of every such Parsonage, Vicarage, Portion, 11 Co. 23. Pension, or other Profit called Ecclesiastical or Spiritual, so to be demanded, according to the Nature and Cause of the Suit thereof, in like manner and Form as they should, ought or might have had, of or for Lands, Teneinents, or other Hereditaments, in such Manner to be demanded: And that Writs of Covenant and other Writs for Fines to be levied, and all other Assurances to be had, made or conveyed, of any such Parsonage, Vicarage, Portion, Pension or other Profit called Ecclesiastical or Spiritual as is aforesaid, shall be hereafter devised and granted in the said Chancery according as hath been used for Fines to be levied, and Assurance to be had, made or conveyed, of Lands, Tenements or other Hereditaments: and that all Judg Judgments given, ments to be given upon any of the said Writs original, so to be and Fines levied m devised or granted of or for any the Premisses, or any of them, and the King's Courts, all Fines to be levied and knowledged in any of the King's said Courts of hike Force as of thereof, shall be of like Force and Effect in the Law, to all Intents Lands. and Purposes, as Judgments given, and Fines levied of Lands, Tene

of Tithes, shall be

No. 4.

ments and Hereditaments in the same Courts upon Writs original 32 H. VIII. c. 7. therefore duly pursued and prosecuted, albeit no such Form of Writs original out of the said Court of Chancery have heretofore proceeded or been awarded.

had for Tithes and

aud not in the

Temporal.

VIII. Provided always. That this last Act shall not extend nor Remedy shall be be expounded to give any Remedy, Cause of Action or Suit in the Offerings in the Courts Temporal against any Person or Persons which shall refuse or Spiritual Courts, deny to set out his or their Tithes, or which shall detain, withhold or refuse to pay his Tithes or Offerings or any Parcel thereof; but that in all such Cases the Person or Party, being Ecclesiastical or Lay Dyer, 84, pl.82. Person, having Cause to demand or have the said Tithes or Offerings 27 H. 8, c. 20. in every such Case in the Spiritual Courts, according to the Ordinance in the first Part of this Act mentioned, and not otherwise; any Thing herein expressed to the contrary thereof notwithstanding.

2 Co. 43.

No. 5.

37 Henry VIII. c. 12.-An Act for Tithes in London.

2 & 3 Edw. VI. c 13

paid.

In what Manner Tithes ought to be 27 H. 8. c. 20. 32 H. 8, c. 7.

1 Roll. 13, 90, 354. 13 Co. 23, 48. Savil, 131. Godbolt, 211, pl. 30.

No. 6.

2 & 3 Edward VI. c. 13.-An Act for Payment of Tithes.

WH

"HERE in the Parliament holden at Westminster the iv. Day of February in the xxvij. Year of the Reign of the late King of most famous Memory, King HENRY the viij. there was an Act made concerning Payment of Tithes Predial and Personal: And also in another Parliament holden at Westminster the xxiv. Day of July in the xxxij Year of the Reign of the said late King HENRY the viij. another Act was made concerning the true Payment of Tithes and Offerings; in which several Acts many and divers Things be omitted and left out, which were convenient and very necessary 'to be added to the same:' In Consideration whereof, and to the Intent the said Tithes may be hereafter truly paid, according to the Mind of the Makers of the said Acts, be it ordained and enacted by the King our Sovereign Lord, with the Assent of the Lords Spiritual and Temporal, and the Commons, in this present Parliament assembled, and by the Authority of the same, That not only the said Acts made in the said xxvij. and xxxij. Years of the Reign of the said late 2 Bulst. 85,183. King HENRY the viij. concerning the true Payment of Tithes, and every Article and Branch therein contained, shall abide and stand in Every Person shall their full Strength and Virtue; but also be it further enacted by the his predial Tithes. Authority of this present Parliament, that every of the King's Subjects shall from henceforth truly and justly, without Fraud or Guile, divide, set out, yield and pay, all Manner of their predial Tithes (1) in their proper Kind as they rise and happen, in such Manner and

18 Ed. 3, st. 3, c. 7. 45 Ed. 3, c. 3. 5 H. 4.

c. 11.

2 Inst. 648. March 21.

1 Bulst. 108.

set forth and pay

2 Inst. 611.

3 Leon. 204.

1 Mod. 50.

Raymond, 14. Hardress, 315. 1 Vent. 126.

Carth. 361.

(1) This Provision relates only to predial Tithes, and therefore where the Declaration was for not selling out predial and other Tithes, as Wool, &c. and Cro. El. 608, a general Verdict was given, Judgment was arrested. Selw. N. P. 1074. But the Statute extends to small Tithes as well as great. Day v. Parkwell, Moor 915.

621, 766.

Cro. 513..

Form as hath been of Right yielded and payed within forty Years (2) next before the making of this Act, or of Right or Custom ought to have been paid: And that no Person shall from henceforth take or carry any such or like Tithes, which have been yielded or paid within the said forty Years, or of Right ought to have been paid, in the Place or Places titheable of the same, before he hath justly divided or set forth for the Tithe thereof the tenth Part of the same, or otherwise agreed for the same Tithes with the Parson, Vicar or other Owner, Proprietory or Ferшor of the same Tithes; under the Pain of Forfeiture of treble Value of the Tithes so taken or carried away. (3)

II. And be it also enacted by the Authority aforesaid, That at all The Penalty for Times whensoever and as often as the said predial Tithes shall be due carrying of Corn or Hay before and at the Tithing Time of the same, it to be lawful to every Party to Tithe be set forth. whom any of the said Tithes ought to be paid, or his Deputy or Ser- or for letting the vant, to view and see their said Tithes to be justly and truly set forth Parson to carry it. Co. pl. f. 161. and severed from the nine Parts, and the same quietly to take and 2 Bulst. 228, carry away: And if any Person carry away his Corn or Hay, or his 285. 3 Bulstr. other predial Tithes, before the Tithe thereof be set forth; or willingly 278. Godbolt. withdraw his Tithes of the same or of such other Things whereof 245, pl. 342. predial Tithes ought to be paid; or do stop or let the Parson, Vicar, Moor, 528. Proprietor, Owner or other their Deputies or Farmers, to view, take Hob. 218. Cro. and carry away (4) their Tithes as is abovesaid; by Reason whereof the Jac. 57, 68, 70, said Tithe or Tenth is lost, impaired or hurt; that then upon due 318. 2 Roll.54. Proof thereof made before the Spiritual Judge or any other Judge to Hetley, 125. whom heretofore he might have made Complaint, the Party so carrying away, withdrawing, letting or stopping, shall pay the double Value of the Tenth or Tithe so taken, lost, withdrawn or carried away, over and besides the Costs, Charges and Expences of the Suit in the same: The same to be recovered before the Ecclesiastical Judge according to the King's Ecclesiastical Laws.

March 57.

Tithe of Cattle

is not known.

III. And be it further enacted by the Authority aforesaid, That all and every Person which hath or shall have any Beasts or other feeding in a Waste Cattle titheable, going, feeding or depasturing in any Waste or com- where the Parish mon Ground, whereof the Parish is not certainly known, shall pay their Tithes for the Increase of the said Cattle so going in the said Waste or Common, to the Parson, Vicar, Proprietor, Portionary, Owner or other their Farmers or Deputies of the Parish, Hamlet, Town or other Place, where the Owner of the said Cattle inhabiteth or dwelleth.

scription or Com

IV. Provided always, and be it enacted by the Authority afore- Linds discharged said, That no Person shall be sued or otherwise compelled to yield, of Tithe by Pregive or pay any Manner of Tithes for any Manors, Lands, Tenements position. or Hereditaments, which by the Laws and Statutes of this Realm or 2 Co. 44. 13Co. by any Privilege or Prescription, (5) are not chargeable with the Payment 42. Co. pl. 452,

454, 457.

(2) It is not necessary that Tithes should appear to have been actually 2 Roll. 479. paid, the Presumption being in Favour of the general Liability, and the Plaintiff will recover in such Case upon a Declaration that the Tithes were yielded and payable within Forty Years before the Statute. Mitchell v. Walker, 5T. R. 260. But if it is alledged that Tithes were paid within the Forty Years, Evidence must be given thereof -Lord Mansfield v. Clarke, cited ibid. and see Hallewell v. Trapps, 2 N. R. 173.

(3) As to whether the Action can be brought for Non-payment of a customary Tithe of an Eleventh instead of a Tenth, or if it can, whether such customary Tithe should not be expressly stated in the Declaration, see Blundell v. Mawdesley, 15 E. 641.

(4) As to the Way which the Parson has a Right to use for carrying off the Tithe, see Cobb v. Selby, 2 N. R. 466.

(5) A Prescription, exempting from the Penalties of this Act, must be good in Law; and the Validity of the Custom is proper to be tried in an Action on the Statute.-Phillips v. Davies, 8 East, 178.