Abridgment of Ecclesiastical Laws

CHAP. XXVIII.

Of Incumbents; as also of Residence and Non-Residence.

• 1. Incumbent, who properly such; why so called, and what things preparatory to a complete Incumbent.
• 2. The Rights of a Compleat Incumbent.
• 3. The Rights of an Incumbent 's Executor as to the Glebe.
• 4. The Resident Incumbents duty, that keeps a Curate.
• 5. Whether he be an Incumbent, who is in by the Kings Presentation, where the King mistakes his Title.
• 6. Whether an Incumbent may plead (as such) who was not Incumbent ante impetrationem Brevis.
• 7. Whether the Non-Residency of an Incumbent were punishable by the High Commissioners.
• 8. How the 80 days absence in a year shall be understood to include Non-Residency, according to the Statute, &c.
• 9. The Laws in force concerning Residence and Non-Residence, and who are qualified for Non-Residence.
• 10. The Canon in the Provincial Constitutions touching the Non-Residence of Vicars on their Vicarages.
• 11. The Form of the Oath of Residence on a Vicarage.
• 12. Whether a Parson inhabiting in a Messuage very nigh adjoining to the Parsonage-house, which he keeps also in his own hands, be a Resident within the intent of the Statute.
• 13. What the Law requires for Residence; and what are the just Causes of Non-Residence.
• 14. An Incumbent stands charged with the Arrerages of a Pension, issuing out of his Church, that were behind in his Predecessor's time, as well as those accruing in his own time.
• 15. The Constitution touching the Oath of Residence; as also how the Incumbent may be out of his Parish, and yet be reputed as Resident.
• 16. What shall be accounted such an Absence or Non-Residence within the Statute, as to avoid a Lease made by the Incumbent.
• 17. Indictment against a Common Informer, exhibiting an Information against Two Parsons; one for Non-Residence, the other for taking a Farm.
• 18. Covenants as well as Leases made void by the intent of the Statute of 13 & 14 Eliz. by reason of Eighty days Absence.

(1.) INcumbent, from incumbere (signifying as well to possess and keep safely, as to endeavor earnestly) is a Clerk duly Possest of and Resident on his Benefice with Cure . For the faithful discharge whereof he is to employ his study and utmost endeavor : For which reason especially he is so denominated. There are Four things preparatory to the being of a Compleat Incumbent: (1) The Patron's Presentation, or his free Gift or Commendation of his Clerk to the Parsonage or Vicarage by writing in his favor to the Bishop. (2) The Bishop's Admission of such Clerk by his allowance or approbation of him after due Examination, and by making a Record of his Name accordingly. (3) The Clerks Institution to such Benefice or Vicarage by the Bishops words, Instituto te, &c. (4) The Clerk's Admission or Induction, whereby he is put into Actual possession thereof by the Archdeacon's or others delivery to him of the Ring or Keys of the Church-door, ringing the Bells, &c. And until these things be done, he is not a Compleat Incumbent . After which, and possession Six months, there is such a Plenarty as gives such a Title to that Presentation, as will bar pro hac vice any others in a Quare Impedit . So that those things that are to make a perfect Incumbent (after Presentation had) do depend upon the duty of the Ordinary; as (1) Admission, which requireth Examination of the Clerk; whereupon sometimes ensueth Refusal, and thereupon either Notice or no Notice (as the case requires) is to be given to the Patron. (2) Institution. (3) Induction. Upon the Patron's not Presenting within the time limited, the Lapse incurs to the Bishop, from him to the Metropolitan, and from him to the Crown, where it resteth. But if the Bishop take his time, then is his Presentation a Collation, and in the Right of the Patron himself.

(2.) The Incumbent is that person in Law, to whom the Fruits of any Ecclesiastical Benefice do belong, insomuch that the Fruits taken during the vacation or vacancy of a Benefice, shall be restored to the next Incumbent , who stands charged to the King for the First-Fruits, to be accounted immediately from and after the Avoidance or Vacancy of any such Benefice or Spiritual promotion ; and for that end, and towards the payment of the said First-Fruits, the next Incumbent shall have a restitution, of the Tithes, Fruits, Oblations, Obventions, Emoluments, Commodities, Advantages; Rents, and all other Revenues, Casualties, and Profits whatsoever, certain and uncertain, belonging to any Archdeaconry, Deanery, Prebend, Parsonage, Vicarage, Hospital, Wardenship, Provostship, or other Spiritual promotion, Benefice, Dignity, or Office, growing or arising during the vacancy of any of the said Spiritual promotions ; and every Archbishop, Bishop, Archdeacon, Ordinary, or any other person, having to his or their uses received the same, that shall refuse to render and restore the same to the next Incumbent, shall forfeit the treble value of what he hath so received .

(3.) If any Incumbent happening to depart this life during the Incumbency or Plenarty, shall before his death have caused any of his Glebe Lands to be manured and sowed at his proper cost and charges with any Corn or grain, he may in that case make his last Will and Testament of all the profits of the Corn growing upon the said Glebe-Lands by him so manured and sown . And if one be put into a Place, then removed, and another put in, the first shall have the Tithe happening in such Vacancy ; for the succeeding Parson shall have the Tithes happening during the Vacancy, deducting the charges of collecting the same, and serving the Cure during such Vacancy. Also if an Incumbent be removed in a Quare Impedit, the Plaintiff shall not have the main profits . And an Incumbent being in by Usurpation, he cannot be removed but by a Quare Impedit .

(4.) An Incumbent Resident that keeps a Curate, is obliged to read the Common Prayers in his Parish-Church once a month in his own person, on pain of forfeiting Five pounds for every omission .

(5.) In Thomson 's Case, where T. Libelled for Dilapidations against the Executors of his Predecessors, and Henden moved for a Prohibition; for that that T. is not Incumbent, for his Presentation was by the King ration Minoritatis of one C. and the King had not any such Title to Present: for where the King mistakes his Title, the Presentation is void, and he is no Incumbent. 6. Rep. 26. Green 's Case. And Sir Tho. Gawdy 's Case, where the King Presented jure Prerogat. when he had another Title; and the present Action was adjudged void, and whether he is Incumbent or not, that shall be tried. But by the Court a Prohibition was denied, because that he was now Incumbent. And the Judges would not take notice of the ill Presentation of the King: But in case of Simony the Statute makes the Church void, and then the Judges may take notice of that, and grant a Prohibition, if the Parson sues for Tithes. But if a Quare Impedit be brought, and appears that the King had not cause of Presentation, then a Prohibition may be granted: which was also granted by all the other Justices. Mich. 3 Car. C. B. Thomson 's Case. Hetley's Rep.

(6.) In Dame Chichleys Case against the Bishop of Eli it was said by Henden, That an Incumbent by the Statute of 25 Ed. 3. c. 7. cannot plead ( quatenus such) unless he be Incumbent ante diem impetrationis Brevis, unless he be Incumbent pendente lite he cannot plead, &c. Hutton, If one be Presented, Instituted, and Admitted before the Writ, and Inducted after, and before his Pleader, he may plead well .

(7.) A Libel was against H. Vicar of S. in the High Commission-Court at York, because that he was not Resident, but lived at Doncaster, and neglected to serve his Cure; and that divers times he, when the High Court visited, spoke so loud, that he was offensive to many, and being reproved for that, he gave a Scornful Answer: And that there was one Wright in the Parish, who had a Seat in the Church, and that the Vicar would Spit in abundance into the said Seat, and that when Wright and his Wife were there. And that in his Sermon he made Jests, and said, That Christ was laid in a Manger, because he had no money to take up a Chamber, but that was the knavery of the Inn-keeper; he being then in contention with an Inn-keeper in the Parish. And that in time of Divine Service he thrust open the door of Wright 's Seat, and said, That he and his Wife would sit there, in disturbance of Divine Service. And for that a Prohibition was prayed and granted; for the High Commission cannot punish Non Residency, nor breaking the Seat in Divine Service: And the other were things, for which he shall be bound to the good behavior; and the Complaint ought to be to the Ordinary .

(8.) Note, by Tanfield, that by the Statute of 13 Eliz. cap. 20. of Non-Residency, That if the Parson be Absent 80 days in a year, although it be at several times ( viz. ) ten days at one time, and twenty days at another time, until eighty days, &c. That is within the Statute, by which it hath been Adjudged .

(9.) The personal Residence of all Ecclesiastical persons on their Cures respectively is a duty so incumbent on them for the better discharge of their Sacred Function, the prevention of Dilapidations, and the maintenance of Hospitality, that it is enacted, That every Spiritual person promoted to any Archdeaconry, Deanery, or Dignity in any Church Cathedral or Collegiate, or Beneficed with any Parsonage or Vicarage, shall be personally Resident and abiding in, at, or upon such Dignity, Prebend, or Benefice, or one of them at the least; and that if any such person willfully Absent himself from his said Benefice, &c. by the space of a Month at one time, or two Months at several times in any one year, to be accounted at several times, that such person so absenting shall forfeit ten pounds for every such default . It is also further provided, That the Parson or Vicar shall be Resident in and upon his Parsonage or Vicarage-House (if he have any) and not at any other House in the Parish; but if he hath no House on his Glebe, or be removed without fraud for his Health, or without fraud Imprisoned, or be beyond Sea in his Majesty's Service, or without fraud abide in any University within this Realm to study, or be a Chaplain qualified for Plurality by the Statute of 21 H. 8. either of these may excuse his Residence for the time . Also the King may give a License to any of his own Chaplains to be Non-Resident : And any Ecclesiastical person may be Non-Resident for such time as without fraud he is attending a Suit in Chancery. There are also other Chaplains of other persons that are qualified for Non-Residence , which for brevities sake are here omitted. And where a Chaplain is qualified in respect of his Service for Plurality, if his Lord die, or be Attainted, or be removed from his place, it will not it seems suffice that he be Resident only upon one of his Livings, without the King's Special License with a Non obstante .

(10.) The Canon made by Cardinal Otho, and afterwards Confirmed and de novo Established by Othobon, seems very severe as to Vicars in case of Non-Residence; for in their Constitutions it is Ordained, That if any Non-Resident shall receive the profits or Fruits of a Vicarage, he shall restore the one Moity thereof to the Church, one half of the other Moity to the Poor of that Parish, and the rest to the Archdeacon of the place, if he discharge his duty in making a diligent Enquiry yearly herein, and shall forthwith make it known to the Bishop; and whoever shall disobey the Premises by one Month, shall also be deprived of his other Benefices, if he have any, and be rendered incapable of ever having that Vicarage again, or any other Benefice for Three years: And in case the Archdeacon shall neglect what herein is enjoined him, he shall be deprived of that part allotted him as aforesaid, and suspended ab ingressu Ecclesiae. Constit. Othobon. de Residentia Vicariorum.

(11.) The Oath of Residence on a Vicarage is as followeth, viz. Ego A. B. juro, Quod ero Residens in Vicaria mea, nisi aliter dispensatum fuerit à Dioecesano meo. What Spiritual persons may be discharged of Residence, and by what means, vid. St. 21 H. 8. 13.

(12.) In an Information upon the Statute of 21 H. 8. cap. 13. of Non-Residency, it was found by Special Verdict, That Dr. N. was Incumbent, invested in the Rectory of S. and that he was also seized of a House in S. aforesaid, scituate within twenty yards of the Rectory, and that the Mansion-house of the said Rectory was in good Repair, and that Dr. N. held that in his hands and occupation with his own proper Goods, and did not Lett it to any other, and that he inhabited in the said Messuage, and not in the Parsonage. The Statute of 21 H. 8. cap. 13. provides, That every Parson promoted to any Parsonage, shall be Personally resident, and abiding in, at, and upon the said Benefice: And in case any such Spiritual Parson keep not Residence at his Benefice, as aforesaid, but Absent himself willfully by the space of a Month together, or two Months to be accounted at several times in any one year, and makes his residence or abiding in any other places by such time, that then he shall forfeit for every such default Ten pounds, the one half to the King, the other half to the Informer. The Question was, Whether the said Dr. N. were Non-Resident, and incurred the penalty of this Statute? It was Argued by Houghton, that he had incurred the penalty of the Statute, and was Non-Resident within the intent thereof; he said, that to some intent all the Parish may be said the Benefice of the Parson, for that he hath Benefit out of it, and he is called Parson of such a Town or Parish; but this is not the Benefice that the Statute intends, upon which he ought to be Resident, &c. Also he said, That there were Seven causes of making the said Statute, whereof but Two are to our purpose; the one is Hospitality, the other Relief of the Poor, and these are to be done in the Parsonage-house, for this is the Free Alms of the Church: And so it was Adjudged, 34 Eliz. B. R. Broom and Hudson; and 40 Eliz. B. R. between Butler and Goodall. Coke 21. b. That he ought to be Resident upon the Parsonage-house, and not elsewhere; and he agreed, That Imprisonment without deceit, and Sickness, are good Excuse. For the Defendant, Barker Serjeant argued, That it appears by the Special Verdict, that Dr. N. held the Parsonage-house in his own hands, and did not Lett it; whence he infer'd, That his Servants were resident upon it, &c. and that by the Council of Lateran all the Parish is made the Benefice of the Parson, &c. Also, that before the said Statute every Spiritual man was obliged and compellable by the Ecclesiastical Law to be Resident; yet if he were in the Kings Service, or an Officer of the Chancery, he should be excused, as appears in the Register, fo. 51. b. though that he were Dean, the which Office merely requires his Personal Residence, as it is there said. This Case was compounded by the Lord Coke, but he intended this was no Residence within the Statute, for this was not his Benefice, but the Tenants part of that, as he said hath been Adjudged in the Exchequer.

(13.) In Butler and Goodall 's Case, it was Resolved upon the Statute of 21 H. 8. That a Parson of a Church ought to stay and be commorant upon his Rectory ( viz. ) upon the Parsonage-house, and not in any other House, although it be within the Parish; but lawful Imprisonment without Covin, is a good cause of Non-Residence: Also, if there be no Parsonage-house (for impotentia excusat Legem ) also Sickness without fraud, if the Patient remove by advice of his Counsel in Physic, bona fide, for better air and recovery of his health. The Statute is intended not only for serving the Cure, but also for maintaining the habitation of the Parson, for him and his Successors, and for Hospitality. Vid. Co. 6. pa. 21. & Cro. par. 1.

(14.) In the Case between Trinity College and Tounstall it was Resolved, That an Annuity by Prescription for a Pension issuing out of the Church lay against the Incumbent, as well for the Arrearages due in the time of his Predecessor, as in his own time; for that the Church itself is charged with it in whose hands soever it comes.

(15.) By Cardinal Otho 's Constitution [ De Institution Vicariorum ] it is Ordained, That none shall be Admitted to a Vicarage, unless he first take his Oath, that he will have his personal and constant Residence thereon; otherwise his Institution thereto to be null and void, and the Vicarage to be conferred on another. Const. Othon. de Instit. Vicarior. From which Canon the Gloss thereon doth raise this Question, viz. Whether a Vicar not having possibly any Dwelling-house yet built for his habitation in the Parish, and living for that reason in some neighbor-place, and at another man's Table out of his Parish, may according to the Oath aforesaid enjoined by the said Canon, be said to be Resident? where the Question though argued in the Negative, yet is Resolved in the Affirmative; and that he shall be reputed as Resident, if he be so nigh scituate to his Parish, that the Inhabitants thereof may conveniently have access to him, as oft as the Parishioners have need of his Ministry, and so as on all requisitions he be ready to administer the Sacraments within the Parish; for in construction of Law, he is said to make his residence sufficiently there or in that place, where he doth discharge his work and duty, albeit he lives elsewhere: L. cum quidam facit. ff. defun. instruct. Likewise, the Law in requiring such Residence aims as well at Hospitality as at the discharge of the Ministry. Also, he that is Absent only about the affairs of the Church, is reputed in Law as Present and Resident: Also the Bishop may dispense with his Non-residence notwithstanding such Oath aforesaid: Glo. in ver. Residentiam. dict. Const. Otho. Yea, he may also be sometimes Absent not only upon necessary, but also upon his Family-occasions, with License from the Bishop, as also for his Recreation, where it is for recovery of his health, or prevention of Sickness. Gloss. ibid.

(16.) In an Action upon the Case, for a Promise, upon a Non assumpsit pleaded, a Special Verdict was found, upon which the Case appeared to be this: The Defendant by Indenture did Demise unto the Plaintiff all his Tithe of Corn and Hay, and the Agreement between them was this, the Plaintiff should pay him for the Tithe fifty five shillings, and this by agreement was to be paid at a day certain, then following: The Defendant having this Tithe, passed the same in this manner to the Plaintiff, and upon this Agreement and Promise, being not performed, the Plaintiff brought his Action. It was found, that the Defendant confessed the Agreement to be so, but in Barr he pleaded the Statutes of 13 Eliz. cap. 20. and of 14 Eliz, cap. 11. for the avoiding of Leases made by a Parson, by his Absence from his Living by the space of eighty days in one year, and also shows that one Stallowe who was Parson of Sharrington, to whom these Tithes did belong (and in whose Right the Defendant claimed them) was Absent from his Parsonage by the space of eighty days in one year, and shows in what year, and so by this his interest determined, and Agreement with the Plaintiff by this made void; but they found further (as the Plaintiff made it to appear) That Stallowe the Parson of Sharrington was not Absent in manner as it was alleged, for that they found, that he did dwell in another Town adjoining, but that he came constantly to his Parish-Church, and there read Divine Service, and so went away again: They did also find, hat he had a Parsonage-house in Sharrington fit for his habitation; and whether this were an Absence within the Statute, as to avoid his Lease, they left that to the Judgment of the Court. Yelverton Justice, This is a good Non-Residency within the Statute of 21 H. 8. cap. 13. but not an Absence to avoid a Lease made within the Statute of 13 Eliz. cap. 20. It cannot be said here in this Case, that he was Absent, for he came four days in every week, and in his Parish-Church did read Divine Service. Williams Justice, upon the Statute of 13 and 14 Eliz. the Parson ought not to be Absent from his Church eighty days together in one year ( à Rectoria sua; ) but this is not so here, for he came to his Church, and read Divine Service there every Sunday, Wednesday, Friday, and Saturday, and therefore clearly this cannot be such an Absence, within the scope and intention of these Statutes, as thereby to avoid his Lease. Yelverton Justice, he ought to be Absent eighty days together, per spatium de Octogin. diebus & ultra, and this to be altogether at one time, and so the same ought to have been laid expressly, the which is not so done here, for that it appears here, that he was at his Parsonage-house, and did read Prayers every Sunday, Wednesday, Friday, and Saturday; and so the whole Court were clear of Opinion, that this Absence here, as the same appeared to be, was not such an Absence by the space of eighty days in one year, to avoid his Lease within the said Statute, and so the Defendants Plea in Barr not good, and therefore by the Rule of the Court Judgment was entered for the Plaintiff.

(17.) An Information was Exhibited against Two Parsons by J. S. upon the Statute of 21 H. 8. cap. 13. against one of them for Non-Residency, and against the other for taking of a Farm; the one of them pleaded Sickness, and that by the Advice of his Physicians he removed into better Air, for Recovery of his health; and this is justifiable by the whole Court: vid. more for this Coke 6. par. fo. 21. in Butler and Goodall 's Case. The other pleaded, That he took the Farm for the maintenance of his House and Family: And this also is justifiable by the Opinion of the whole Court. Crooke moved the Court for the Defendants, That the Plaintiff was a Common Informer, and that he did prefer this Information against them, only for their vexation, and so to draw them to compound with him, as formerly he hath so done by others, for which they prosecuted an Indictment in the Country, upon the Statute of 18 Eliz. cap. 5. made to punish Common Informers for their Abuses. The whole Court did advise them to prosecute this Indictment against him. Crooke moved for the Defendants, That in regard the Informer is a man of no means, that the Court would order him to put in sufficient Sureties to answer Costs, if the matter went against him, and that then the Defendants would presently answer the Information. Williams Justice, nullam habemus talem legem, this is not to be done; but the Rule of the Court was, That the Defendants should not answer the Information, until the Informer appeared in person.

(18.) In an Action of Covenant the Plaintiff in his Declaration sets forth, that the Defendant was Parson of D. and did Covenant, That the Plaintiff should have his Tithes of certain Lands for thirteen years; and that afterwards he Resigned, and another Parson Inducted, by which means he was ousted of his Tithes, and for this cause the Action brought. The Defendant pleads in Barr the Statutes of 13 Eliz. cap. 20. and 14 Eliz. cap. 11. for Non-Residency, upon which Plea the Plaintiff demur'd in Law. It was urged for the Plaintiff, That the Plea in Barr was not good, because it is not averred, that the Defendant had been Absent from his Parsonage by the space of Eighty days in a year, for otherwise the Covenant is not void by the Statutes. For the Defendant it was alleged, That the pleading of the Statute of 13 Eliz. is idle, but by the Statute of 14 Eliz. this Covenant is made void; for by the Statute, all Covenants shall be all one with Leases, made by such Parsons: And in this case, if this had been a Lease, this had been clearly void by Surrender of the Parson; and so in case of a Covenant. Doddridge and Houghton Justices, The Statutes of 13 and 14 Eliz. do not meddle with Assurances at the Common Law, nor intended to make any Leases void, which were void at the Common Law; and therefore this Covenant here is not made void by the Statute, unless he be Absent Eighty days from his Parsonage. Coke Chief Justice agreed with them herein. They all agreed in this Case for the Plaintiff, and that by the Preamble of 14 Eliz. it is shown, the intent of the Statute to be to make Covenants void, within the Provision of 13 Eliz. by Absence for Eighty days: And Judgment in this Case was given for the Plaintiff.

CHAP. XXIX.

Of Abbots and Abbeys; also of Chauntries; and of the Court of Augmentations.

1. Abbot, what; why so called; the several kinds thereof; and how many anciently in England.

2. A famous Abbot anciently in Ireland: The manner of their Election prescribed by the Emperor Justinian: Anciently the Peers of France were frequently Abbots.

3. The ancient Law of King Knute concerning Abbots.

4. The Abbot, with the Monks, making a Covent, were a Corporation.

5. Abbots were either Elective or Presentative; they were Lord's of Parliament: How many Abbeys in England, and which the most Ancient, Founded by King Ethelbert.

6. Chaunter and Chauntries, what, and whence so called; their use and end; 47 belonging anciently to St. Paul's in London; when and by what Laws their Revenues were vested in the Crown.

7. Before King John 's time Abbots and Priors were Presentative, afterwards Elective.

8. Six Differences taken and Resolved in a Case at Law touching Chauntries.

9. Certain Cases in Law touching Lands, whether under pretence of Chauntries given by the Statute to the King, or not.

10. What the Court of Augmentations was, the end and use thereof, when Erected, how Established, and by whom Dissolved.

(1.) ABba and Abbas have one and the same signification, therefore Abbots are called Patres. c. ult. de Regular. Tuseh. Concl. 3. nu. 7. It is either an Hebrew or Syriac word, signifying Pater with the Greeks and Latins, from the two first Hebrew Elements or Letters, Aleph and Beth inverted; which Name the Monks first assumed at their Original in Syria and Egypt. And although now in this Kingdom we know no more of this word [ Abbot ] than the very Name thereof; yet for his Antiquities sake he hath the Alphabetical precedence in the Index of this Abridgment, whether he be Archimandrita, Novel. Const. 115. or Coenobiarcha, or Archimonachus. Hottom. in ver. Feuda. Marsil. colum. de Eccles. redit. c. 15. nu. 5, 6. whether Miter'd, and thereby exempt from the Diocesan's Jurisdiction, as having within their own Precincts Episcopal Authority in themselves, and being Lord's in Parliament, whence called Abbots Sovereign, 9 R. 2. c. 4. Or not Miter'd, but subject to the Diocesan in all Spiritual Government. c. Monasteria. 18. q. 2. c. Abbas, &c. Visitandi, cum 4. seq. ibid. Omnes 16. q. 7. & c. cum Venerabilis. Extra. de Relig. Dom. vid. Stow. Ann. p. 442. So called Abbas, because he is Pater Monachorum, Januen. in suo Cathol. glo. Jo. Andr. de Rescript. c. 1. verb. Abbates. in Clem: & Coke de Jure Ecclesiast. fo. 28. and hath the chief government of a Religious House, and who with the Monks makes a Covent; of these Abbots, together with two or three Priors there, were heretofore in England about the number of Thirty in all. What Consecration is to a Bishop, that Benediction is to an Abbot, but in divers respects; for a Bishop is not properly such until Consecration; but an Abbot being Elected and Confirmed, is properly such before Benediction. cap. de Suppl. negl. Prael. lib. 1. & 10. Clem. §. Statuimus, de Stat. Monach. in Clem. & cap. Meminimus, de Accusat.

(2.) The Venerable Mr. Bede speaks of an Island in Ireland, which ever had an Abbot vested with such power and authority, that every Province, yea, and the Bishops themselves were under his Government, and subject to his Jurisdiction: Beda, lib. 3. de Gestis, cap. 3. Spelm. de Prim. Eccles. Angl-Sax. An. 603. The Emperor Justinian in the First Book of his Codes hath expressly ordained and prescribed the manner and form of the Election and Confirmation of an Abbot, and what persons they ought to be, and how qualified, that shall be accounted worthy of that Ecclesiastical Dignity. C. l. 1. tit. 3. l. 47. & l. 40. De Episc. & Cler. & Novel. 5. cap. 9. & Novel. 123. c. 34. Mr. Blount in his Nomo-Lexicon takes notice of the word [ Abbacy ] and says, it is the same to an Abbot, as Bishopric is a Bishop, resembling it to the word Paternity, and a very Ancient Record wherein that word is used. An. 34, & 35 H. 8. c. 17, 18. Sciant.... quod Ego Isabella Comitiss. Penb. pro Salute Animae meae Dedi Deo & Abbathiae de Nutteleg. totam Wicham juxta dictam Abbathiam, &c. In these latter Ages the Abbots, through the savor of Princes, and their respect to the Church, have been reputed as Peers and Secular Lord's, to whom the granted the Provenues of Abbacies proportionable to such Dignity for the support thereof: Thus many of the Peers of France have very anciently and frequently been Abbots, as appears by Paradine, who wrote the Annals of Burgundy nigh Seven hundred years since, and then affirmed, that he had seen very Ancient Records, wherein the Peers of France used these styles and distinctions, viz. Duke and Abbot, Earl and Abbot, &c. Guil. Paradin. Annal. Burgund. lib. 2. sub. An. 1103. & Prat.

(3.) Notwithstanding the ill opinion, which in these days not without cause is conceived of the Ancient Abbeys, yet it cannot without some breach of charity be well supposed; but that such Houses, commonly called Religious, were in the primitive and true intent thereof better purposed by the Founders, than after practiced by their Inhabitants; for by the Law made in the days of K. Knute nu. 6. i: is evident, what strict Devotion and blameless Conversation the Ancient Princes of this Realm expected from such as then possessed these Abbeys: The Law was this, viz. We will that God's Ministers, the Bishops, Abbots, &c. do in a special manner take a right course, and live according to Rule; that they call to Christ night and day, much and oft, and that they do it earnestly: And we Command them, that they hearken to God, and love Chastity: Full truly they wit, that it is against the Right, to meddle with Women for Lusts sake: Annot. Ridl. View, &c. cap. 4. Sect. 1. Whereby it seems these Spiritual Fathers were suspected of old to incline to the Flesh all days of the week. An Abbot might be Presented to a Church, for he was capable of an Appropriation, whereby he was perpetual Parson Imparsonee, and had Curam Animarum. 34 H. 6. 15.

(4.) The Abbot, or the chief Head of Abbeys, being together with the Monks of the same House, a Covent, made a Corporation, and was not by the Common Law further charged with his Predecessors Acts, than for such things as were for the use of the House, or such Acts as were done under the Common-Seal thereof . And albeit a Creditor had a Specialty against a Monk; yet not the Abbot, but the Monk's Executors were chargeable for his Debt contracted before his entry into Religion, unless it were for some such thing as came to the use of his House .

(5.) Of these Abbots some were Elective, others Presentative; and under this Title were comprehended other Corporations Spiritual, as Prior and his Covent, Friers, Canons, and such like: And as there were Lord-Abbots: so there were also Lord-Priors, who had exempt Jurisdiction, and were Lord's of Parliament: Co. de Jur. Ecclesiast. fo. 28. a. It is supposed, that the Abbot of St. Austin's in Canterbury was the Ancientest of any in this Kigdom, Founded by King Ethelbert in An. 602. And next to him in Antiquity the Abbot of Westminster, Founded by Seabert King of the West-Saxons, An. 604. Some difference there is among Authors touching their Number in this Realm, whereof some reckon but Twenty six. Sir Edw. Coke says they were Twenty seven Abbots and Two Priors . But a very Modern Writer gives us a Catalogue of no less than Thirty three Abbots and Priors ; whereof some were Priors Alie • s born in France, Governors of Religious Houses, erected for Foreigners here in England, suppressed by Henry the Fifth after his Conquests in France, and their Revenues after given by Henry the Sixth to other Monasteries and Houses of Learning, specially for the crecting of Kings College in Cambridge and Eaton, Stow, Annals, p. 582. 1 H. 5. c. 7.

(6.) Chaunter [Cantator ] A Singer in the Choir . At St. David's in Pembrokeshire, the Chaunter is next to the Bishop, there being no Dean . Chauntry [Cantaria] Aedes sacra; ideo instituta & dotata praediis, ut Missa ibidem cantaretur pro anima Fundatoris & Propinquorum ejus. These were commonly Little Chapels; or particular Altars in some Cathedral or Parochial Church, endowed with Lands or other Revenues, for the maintenance of one or more Priests, to officiate as aforesaid; whereof mention is made in certain Statutes of this Realm , though not to such Superstitious uses as aforesaid. A man might make a Chauntry by License of the King without the Ordinary, for the Ordinary had nothing to do there with: 9 H. 6. 16. It might be Founded in a Cathedral Church, also in any other Church: 9 H. 6. 17. Roll. Abr. ver. Chauntry, lit. A. Q. 387. Of these Chauntries there were (it seems) 47 belonging to St. Paul's Church in London . The Superstitious main use and int • nt of these Chauntries originally was for Prayers for Souls departed, under a supposition of Purgatory, and of being released thence by Masses Satisfactory; and as in Adam 's Case, fo. 112. mentioned by Sir Hen. Hobart Chief Justice in the Case of Pitts against James, That Prayer for such Souls was the general matter of all Obits, Anniversaries, and the like, which were but several Forms of Prayers for Souls: And (as in the said Case of Pitts ) if a man give Land to a Parish-Priest to pray, or say Mass for his Soul; this is within the Law, that is within the Statutes of 37 H. 8. c. 4. and 1 Ed. 6. c. 14. as it is held 16 Eliz. Dyer, 337. for to this purpose he is a Souls-Priest, not a Parochial . By which Statutes all Chauntries, and all their Lands and Hereditaments are given to the Crown, and all Lands, Rents, and Profits given to the finding of a Priest for the Superstitious ends aforesaid, to continue forever, are vested in the actual possession of the King, and of his Heirs and Successors forever, who shall also have by the said Statute of 1 Ed. 6. all the Common Goods of such Chauntries, and the Debts thereof shall be paid to the Kings Treasurer; and shall also have all Lands, and all such Sums of money, and part of the issues of Lands given for the maintenance or for the finding of any Anniversaries, Obits, Lights, Lamps, &c. Only the said Act doth not extend to such Lands, as whereof the Governors of such Colleges as were mentioned therein, or Chauntries, were seized to their own uses, nor to any Lands or Rents given by the King for the term of his life only, nor to any Copyhold-Lands; and all Rents and yearly profits due to any Patron, Donor, and Founder of any of the said Chauntries, &c. and the Right of others (except the Governors of Houses) are by the said Act saved to them : All Chanteries, Colleges, Free-Chapels and Hospitals, were by Parliament given to King H. 8. for the carrying on the War against France and Scotland. Towards the Charges of which Wars the King obtained a Grant in Parliament of the same, with the Lands thereto belonging, to be united to the Crown: But dying before he took the benefit thereof, he left that to such of his Ministers, who had the managing of Affairs in his Son's Minority: Heyl. Hist. Eccles. pag. 12. In the Reign of King Ed. 6. one of the great Affairs was the retrieving of a Statute made in the 27th year of King H. 8. by which all Chanteries, Colleges, Free-Chapels, and Hospitals, were permitted to the disposing of the King for term of his life; but the King dying before he had taken many of them into his possession, it was set on foot again in the time of King Ed. 6. and by Parliament during his Reign it was Enacted, That all such Colleges, Free-Chapels, and Chanteries, as were in being within Five years of the present Session, which were not in the Actual possession of the said late King, &c. other than such as by the Kings Commissions should be altered, transported, and changed; together with all Manors, Lands, Tenements, Rents, Tithes, Pensions, Portions, and other Hereditaments, to the same belonging, after the Feast of Easter then next coming, should be adjudged and deemed, and also be in the Actual and Real possession and Seisin of the King, his Heirs and Successors forever. And although the Hospitals, being at that time 110, were not included in this Grant, as they had been in that to the King deceased, &c. yet there were 90 Colleges within the compass of that Grant (those in the Universities not being reckoned in that Number) and no sewer than 2374 Free-Chapels and Chanteries; the Lands whereof were thus confer'd upon the King by Name, but not intended to be kept together for his benefit only. In which respect it was very strongly insisted on by Archbishop Cranmer, That the dissolving of these Colleges, Free-Chapels, and Chanteries, should be deferred until the King should be of Age; to the intent that they might serve the better to furnish and maintain his Royal Estate, than that so great a Treasure should be consumed in his Non-age, as it after was. These Chanteries consisted of Salaries allowed to one or more Priests, to say daily Mass for the Souls of their deceased Founders and their Fri • rds: which not subsisting on themselves, were generally incorporated and united to some Parochial, Collegiate, or Cathedral Church. No fewer than 47 in Number being (as aforesaid) found and Founded in St. Paul's Free Chapels, though Ordained for the same intent, were independent of themselves of stronger Constitution and richer Endowment, than the Chanteries severally were. All which Foundations having in them an admixture of Supers •• tion (as presupposing Purgatory, and Prayers to be made for the deliverance of the Soul from thence) were therefore now suppressed upon that account. Heyl. Hist. Eccles. in temp. Ed. 6. pag. 50, 51.

(7.) Before King John 's time the King and other Founders and Patrons of Priories and Abbeys, were wont to present Priors and Abbots : But by King John there was a Free Election granted unto Priors .

(8.) In Adams and Lambert 's Case, touching Chanteries these differences were taken: (1) If one give 20 l. per annum for the Finding of a Priest, and limit to the Priest 10 l. per annum; all is given to the King, for the residue shall be intended for the finding of Necessaries: otherwise it is, if a Condition be annexed to the Gift, to give 10 l. per annum to a Priest, there the King shall have but 10 l. (2) Land of 20 l. per annum is given to find a Priest, with 10 l. per ann. thereof, and that the other 10 l. shall be to the Poor, the King shall have but 10 l. But if it be for finding a Priest and maintenance of Poor men, without limiting how much the Priest shall have, the King shall have the Land, for otherwise he shall have nothing. (3.) If Land of 20 l. is given for finding Salary for a Priest with 10 l. of it, and also a good use is limited, there the King shall have but 10 l. although the other Necessaries are to be found for the Priest, because a good use in certain shall be preferred before a Superstitious incertain use; but if nothing in certain be limited to the Priest, the King shall have the Land. (4) If Land be given to find a Priest, the King shall have it; but if a Priest have but a Stipend, the King shall have but the Stipend. (5.) When a certain Sum is limited to a Priest, and other good uses are also limited, which depend upon the Superstitious use, all is given to the King. (6.) If all the uses be Superstitious, of what certainty soever they are, the Land is given to the King; otherwise it is, if there be any good use .

(9.) The Case was where A. devised to the Dean and Chapter of Y. 400 l. to the intent to find a Chantery in their Church perpetually, and an Obit for the Soul of D. and that the Chantery-Priest should have 40 Marks yearly; King H. 4. gave License to the Dean and Chapter to purchase divers Lands in F. ad onera & opera pietatis: In the Will of A. they purchased Houses in F. and made Ordinances how the Priests should be maintained, and obliged themselves & omnia bona sua ad performandum; and they employed 8 l. for the maintenance of the Priest, and other Sums for the Obit: Resolved, That this was not a Chauntery, either in truth or in reputation, within the intent of the Statute of 1 Ed. 6. because here are not any Lands given by A. and his Intent cannot make a Chauntery, nor appoint any Lands thereunto, but obliged their Goods for the payment of an Annual Sum to a Priest; and when no Lands are given, nor employed to that purpose, it is not reason they should be given to the King .

A Freeman of London seized of Messuages of the value of 9 l. 4 s. per ann. out of which a Quit-rent of 42 s. per ann. was paid, 6 H. 7. devised the same to the Parson and Churchwardens of the Parish of S. and their Successors, That the Churchwardens should receive the Profits thereof, and therefore should find a Chaplain forever, to pray for the Soul of him and his Ancestors, and to find an Anniversary, expending yearly on it 13 s. 4 d. and the Residue of the profits thereof to be expended and employed about the Reparations of the said Church; which were done accordingly. The Question now was, Whether these Messuages were given to the King by the Statute of 1 Ed. 6. of Chaunteries. It was said, part of the Profits were given for a good use, and that should save the Lands: But Resolved, because that was incertain, for it is ( si quid fuerit ) and also for that it appeareth, That the Superstitious uses and the Quit-rent did amount to the full value of the Messuages; and the value shall be taken as it was at the time of the making of the Will, and not to be of any greater value; that the said Messuages were given to the King by the said Statute .

A man devised two Houses in L. to the Churchwardens of S. (1) To find an Obit, and to bestow 3 s. per annum upon the same Obit. (2.) The residue of the Profits to Repair the said Church of S. and to provide Ornaments in the said Church. In this Case it was Adjudged, That by the Statute of 1 Ed. 6. no more of the Land was to the King, than was given to the Obit; and the Devise to the other uses of the rest was good .

A Citizen and Freeman of London seized of divers Messuages and Tenements of the yearly value of 30 l. 6 s. 8 d. by his Will before the Statute of 1 Ed. 6. Devised the same to the Corporation of Skinners of London, and that 42 s. 8 d. thereof should be employed upon an Obit, and 12 Marks yearly thereof upon the Priest, and the residue to be employed upon Poor men of the Corporation decayed by Misfortune, who inhabited the said Messuages and Tenements, and appointed the said Poor men to pray for his Soul, and further with the Profits to repair the Messuages and Tenements, and after the Statute of 1 Ed. 6. was made of Chanteries. It was the opinion of the Court, (1) That Lay-Corporations are excepted out of the Statute for their Lands, which they have to increase their Treasure for the good of the Corporation, but not for Lands which they have to employ to Superstitious uses. (2) Resolved, That all the money which was given for the Obit, and the finding of a Priest, was a Superstitious use, and given to the King by the Statute; but that which was given for the maintenance of the Poor men, and although it was appointed them to pray for his Soul, which was a Precept suitable for that time, and which was given for the Reparation of the Messuages, was not given to the Crown by the said Statute: And Turner 's Case was vouched to be Adjudged, where Land was given to the intent, that his Feoffees should keep an Obit with so much of the Profits of it as they should think fit in their discretion, that the Land thereby was not given to the Crown, but so much of the yearly Rent as the Feoffees employed to that purpose; and if they had employed nothing that way, then nothing was given to the Crown: In the principal Case it was Adjudged against the Queen and Informer . And in the Case between the Queen and Palmer it was said by Anderson Chief Justice, That where a Gift is made to sustain Poor men and Mass-Priests, without limiting a certain quantity, how much to one use, and how much to the other use, there the Queen shall have the whole Land: But if the quantity was appointed as to one use, and how much to the other use, there the Land is not forfeited, but only so much as is employed to the Superstitious uses .

(10.) In order to the better execution of the Premises, there was a Court established, commonly called the Court of Augmentations, erected as a Court of Record, by Authority of Parliament An. 27 H. 8. which was to have one Great Seal, and one Privy Seal; consisting of a Chancellor as the chief and principal Officer thereof, a Treasurer, Attorney, Solicitor, Clerk, Usher, and Messenger. All Lands, &c. belonging to Monasteries, Priories, and other Religious Houses, and Purchased Lands were within the survey and government of this Court; which (as the Lord Coke says) could not be erected but by Parliament, because a Chancellor and a Court of Equity were constituted . There were also other Ministerial Officers that had relation to this Court; for there were Ten Auditors, called Auditors of the Revenues of the said Augmentations, and Seventeen particular Receivers of the said Revenues . This Court of Augmentations, together with the Court of General Surveyers, being repealed, dissolved, extinguished, and determined by King H. 8. by his Letters Patents in the 38th year of his Reign, a new Court of Augmentations was erected by his Letters Patents; which Repeal and Dissolution thereof was held void in Law, because they had been erected by Authority of Parliament: For which reason also the new Erection of the new Court of Augmentations was held likewise void; and therefore the said Letters Patents, as well for the dissolution of the former, as for the erecting of the latter new Court of Augmentations, were after confirmed and established by a Statute enacted by King Ed. 6. . But afterwards Q. Mary, according to the power given her for dissolution of the said Court by Act of Parliament, did dissolve the same by her Letters Patents, Dat. 1. Jan. in primo Regni, and the day next following by other Letters Patents united the same to the Exchequer, which was utterly void, because she had dissolved the same before: So as she pursued not her Authority; and so it was Resolved by all the Judges . The end and intent of this Court was, that the King might be justly dealt with touching the profit of such Religious Houses; and the Court took its name from this, that the Revenues of the Crown were so much augmented by the suppression of the said Religious Houses and their Lands; for by the suppressing of some, and the surrendering of other Religious Houses, the Royal Intrado was so much increased in the time of H. 8. that for the better managing of it, the King erected first the Court of Augmentations, and afterwards the Court of Surveyors▪ But in short time, what by the profuseness of some, and the avariciousness of others, it was at last so retrenched, that it was scarce able to find work enough for the Court of Exchequer. Hereupon followed the dissolving of the said Two Courts in the last Parliament by this King .

CHAP. XXX.

Of Annates or First-Fruits; as also of Tenths; of Aumone or Frank Almoign.

• 1. Annates, what; why so called; paid anciently to the Pope; when and by what Laws translated to the Crown; a Court thereof, when erected▪ and by whom dissolved.
• 2. The great Antiquity of Annates or First-Fruits; the great Revenue it brings to the Papal See; often complained of as a great grievance anciently.
• 3. The Popes receiving of Annates compared to Aaron the High Priest's receiving Tithe of Tithes: The Original, Antiquity, and Equity thereof controverted by some of the Ancient Canonists.
• 4. What the Tenure of Aumone or Frank Almoigne is; a description thereof, with its use and end.
• 5. The difference between Statute and Common Law touching Annates or First-Fruits, whether due and payable upon Institution, or not till Induction.
• 6. To whom the Tenths of Spiritualties were anciently paid, and how they came to the Crown originally.

(1.) BY the Statute of 25 H. 8. 20. Annates and First-Fruits of Archbishoprics and Bishoprics seem to be one and the same thing, and were Anciently paid to the See of Rome, and that throughout all Christendom, as were also the Primitiae, First-Fruits, or Profits of every Spiritual Living, but were afterwards by another Statute translated from the Pope to the Prince . For the due regulation whereof there was a Court purposely crected by a Third Statute , whereby it was made a Court of Record, and commonly called the Court of the First-Fruits and Tenths, and so continued until it was dissolved by Queen Mary ; since which time it was never restored, albeit the Profits were reduced again to the Crown by Queen Elizabeth , and the matters thereof to be transacted, were transferred to the Exchequer. The First-Fruits after the last Avoidance were probably called Annates, because they took their measures from the rate or proportion of one years profit of all Spiritual Livings and Promotions, and accordingly are to be compounded for: so that these Annates, Primitiae, and First-Fruits are all one; and it was anciently the value of every Spiritual Living by the year, which the Pope, claiming the disposal of all Ecclesiastical Livings, reserved. These and Impropr • ations began about the time that Polydore Virgil, lib. 8. cap. 2. makes mention of, vid. Concilium Viennense, quod Clemens Quintus indixit pro Annatibus. These First-Fruits were given to the Crown, • 0 H. 8. cap. 3. Sir Ed. Coke cites an Ancient Record of this Subject, • ill. 34 Ed. 1. An. 1307. At a Parliament held at Carlisle, great complaint was made of Oppressions of Churches, &c. by William Testa (called Mala Testa ) and Legate of the Pope; in which Parliament the King, with the assent of his Barons, denied the payment of First-Fruits; and to this effect he writ to the Pope: whereupon the Pope relinquished his Demand, and the First-Fruits for Two years were by that Parliament given to the King. These First-Fruits or Annates, Primitiae, are the First-Fruits after Avoidance of every Spiritual Living for one whole year (except Vicarages not exceeding 10 l. and Parsonages not exceeding 10 Marks) but all are to pay Tenths. Which Tenths Ecclesiastical, Decimae, are the Tenth part of the value of all Ecclesiastical Livings yearly payable to the King, his Heirs and Successors, by the said Statute of 26 H. 8. cap. 3. and 1 Eliz. to be valued according to the value of Ecclesiastical Livings, which were sometimes valued by a Book of Taxation made in 20 Ed. 1. which remaineth in the Exchequer, and by another Taxation in 26 H. 8. which also remaineth in that Court. And according to this latter Taxation are the values of Ecclesiastical Livingss computed for the First-Fruits and Tenths. The Lord Coke says, That the Bishop of Norwich had in 19 Ed. 3. by Prescription time out of mind, &c. First-Fruits within his Diocese of all Churches after every Avoidance. But these were also given to the Crown by the Statute of 26 H. 8. cap. 3. And as for the Tenths the Can • nists do hold, That the Pope pretended to have them Jure Divino, as due to the High Priest by pretence of these words, Praecipe Levitis atque denuncia, cum acceperitis à filiis Israel Decimas quas dedi vobis, Primitias earum offerte Domino, id est, decimam partem Decimae, ut reputetur vobis in Oblationem Primitiarum tam de areis, quam de torcularibus, & universis quorum accipietis Primitias offerte Domino, & date ea Aaron Sacerdoti. But the Parliaments in 25 H. 8. and 26 H. 8. were not of opinion that these Tenths did belong to the Bishop of Rome, as appears by the several Preambles of the Statutes then enacted: And had they been due Jure Divino to the Pope, it is not probable that Queen Mary by the Act of 2 & 3 Ph. & M. c. 4. would have exonerated and discharged the Clergy thereof, nor refused to have had them paid to the Pope; nor could the Bishop of Norwich (as aforesaid) have prescribed to have First-Fruits within his Diocese, if they had been due to the Pope de jure Divino, speeially for that Anthony de Becke, for whom the Prescription was made, was a Reteiner to the Court of Rome, and made Bishop of Norwich by the Pope. Vid. Co. Instit. par. 4. cap. 14.

(2.) It was an old Observation, and of no less truth than Antiquity, that there never was any Invention that ever brought more Treasure to the Bishop of Rome, than this of Annates, which is of far greater Antiquity than some Modern Writers suppose: so Polydore Virgil. Pol. Virg. de invent. rerum, lib. 8. cap. 2. Et Annates more suo appellant Primos fructus unius Anni Sacerdotii vacantis, aut dimidiam eorum partem. Historians do not agree, what Pope first imposed First-Fruits: Walls. An. Do. 1316. Trivet. Ranulphus Cistrensis, lib. 7. c. 42. Polyd. Virg. ubi supra. Platina, Fox, &c. This Tribute or Revenue long since, when the Bishop of Rome had not such large possessions as now he hath, yet at vast expense and charge to uphold and maintain his Dignity, was gradually by little and little imposed on such vacant Benefices as himself conferred and bestowed, which, as Hostiensis (contemporary with P. Alex. the Fo • rth ) doth affirm, was often complained of as a very great Grievance: so that after this Labarell declared in the Council at Vienna, That Clement the Fifth, who was made Pope in the year 1305. forbad the receiving thereof; and that laying the same aside, the Twentieth part of the Sacerdotal Revenues should instead thereof be annually paid to the Bishop of Rome; but this not taking effect, the Pope so retained the said Annates to his Exchequer, as that to this day it remains one of the considerablest parts of his Revenue. Polyd. Virg. ubi supr.

(3.) The Canonist Gammarus, in favor of the Apostolic See, asserts that Annates are very justly required by the Pope pro Conservando decenti statu, and compares it to Aaron the High Priest's receiving the Tithe of Tithes, the Tithe of such Tithes as were given to the other Priests; adding withal, that Annates are of very great Antiquity; Gammar. in Extr. Julii 2. de Simon. Papae Elect. nu. 253. in Repet. Jur. Can. To. 6. par. 2. fo. 54. as appears by the Concessions of Jo. And • aeas, and of Hostiensis; Jo. Andr. & Hostiens. in c. inter caetera, de Offic. Ordin. the which Tho. Aquinas doth not deny, saying, That it is but consonant to Natural reason, that he qui omnium curam habet, de Communi alatur; and thence concludes, That the Pope may require Tithes and Annates from the Clergy; Aquin. 2. 2. quaest. 87. artic. 4. As to the Original of these Annates, Platina and Blondus report them to have been first exacted by Pope Boniface the Ninth: Others assert it to be in the time of Pope John the Two and twentieth, which was above Seventy years before that Boniface. But Johannes Eccius in his Enchiridion against the Lutherans, says, that both Blondus, Platina, and Gravaminus, whom he there nick-names ( Ecclesiae Consarcinatores ) were all in an Error in ascribing the original of Annates to this Boniface or that John; for says he (quoting Johannes And • aeas for his Author) in the Council at Vienna, An. 1311. whereof P. Clement the Fifth was President (which was long before Boniface or John the 22d ) there was a Debate concerning Annates; Jo. Andraeas ubi supr. & Gam. ubi supr. But their supposing Clement the Fifth to have been after John the 22d. was the ground or reason of their Error.

(4.) Aumone or Frank Almoign is the same which we call Libera Eleemosyna, or Free Alms, whence that Tenure is known by the Name Tenure in Aumone, which is a Tenure by Divine Service . It is a certain Tenure or Title of Lands at the Common Law, as when Lands or Tenements are freely given in the way of Alms, to some Church or Religious House, upon this condition or consideration, That Divine Service shall be offered, and Prayers made pro bono animae Donantis, or the like: So that this Aumone or Frank Almoign is no other than a Tenure or Title of Lands or Tenements bestowed upon God, by giving them to such as devote themselves to the Service of God, for pure and perpetual Alms: whence the Feoffors or Donors cannot demand any Terrestrial Service from the Feoffors, so long as the said Lands and Tenements remain in their hands . With this agrees the Grand Customary of Normandy, cap. 23. and whereof Bracton writes at large . But Briton makes another kind of this Land, which is given in Alms, but not in Free Alms, because the Tenants in this are obliged to certain Services to the Feoffor .

(5.) In the Case of Dennis against Drake it was said, That if a man be Instituted to a Benefice, he ought to pay the First-Fruits before Induction by the Statute; but by the Common Law it was otherwise, for he is not to have the Temporalties until Induction, and therefore he could not pay the First-Fruits: But another person cannot be Presented to this Benefice during the continuance of the first Institution. And an Institution to a second Benefice is a present Avoidance of the first .

(6.) Decimae, id est, Tenths of Spiritualties were perpetual, and paid to the Pope, till Pope Urban gave them to R. 2. to aid him against Charles, King of France, and others, who supported Clement the Seventh against him. And 5 H. 3. by the Pope's Bulls all Tenths were paid to H 3. for years: These were given to the King 26 H. 8. cap. 3. Vid. Lambert de prist. Angl. &c. fo. 128. cap. 10. St. ibid. inter Leges Inae, fo. 78. cap. 4.

CHAP. XXXI.

Of Altarage.

• 1. The genuine signification of the word Altarage, what is comprehended under that word: Two Cases at the Common Law touching Altarage.
• 2. A severe Canon made by Cardinal Otho against the gross abuse of Altarage; an Artifice to defeat that Canon: And whether Altarages may be let to Farm.
• 3. Whether Tithe-Wool will pass by the word Altaragium?
• 4. The word Altaragium shall be expounded according to the use and eugome of the place.
• 5. Whether Tithe-wood may pass to the Vicar by the word Altaragium.

(1.) ALtarage or Altaragium, a word though now somewhat obsolete, yet in signification of Ecclesiastical cognizance, and in the intent thereof practicable at this day. Mr. Blount in his Nomo-Lexicon takes notice thereof, as a word which comprehends not only the Offerings made upon the Altar, but also all the profit which accrues to the Priest by reason of the Altar, Obventio Altaris. And for further proof and illustration of this matter, there cites a President out of the Orders and Decrees of the Exchequer in the Reign of Queen Elizabeth to this effect, That upon hearing of the Matter between R. T. Vicar of West-Haddon, and E. Andrew's, it was ordered, That the said Vicar should have, by reason of the words ( Altaragium cum manso Competenti ) contained in the Composition of the Profits assigned for the Vicars Maintenance, all such things as he ought to have by these words, according to the Definition thereof made by the Reverend Father in God, John Lord Bishop of London, upon Conference with the Civilians, viz. &c. all Doctors of Law, h. e. by Altaragium, Tithes of Lamb, Wool, Colt, Calf, Piggs, Goslins, Chicken, Butter, Cheese, Hemp, Flax, Honey, Fruits, Herbs, and such other small Tithes, with Offerings that shall be due within the Parish of West-Haddon . The like Case was for Norton in Northamptonshire, heard of late years in the said Court, and upon the Hearing ordered in like manner as aforesaid. Thus all Oblations, whether in Money or Bread, to such or such an Altar, either out of Devotion or Custom, made either by the Parishioners or Strangers, are esteemed to be offered nomine Altaragii . Under which Notion may be comprehended Oblations, Obventions, and Offerings, which in effect seem to be but as one and the same thing, and that which may be called merely Spiritual, the Oblations being such things Real or Personal as are offered or dedicated to God and his Church, which seem to be included in Obventions; the other Profits consisting in the Tithes Predial or Personal, as also in the Glebe. John • e Aton in his Gloss upon Cardinal Otho 's Constitutions, describing the Proventus ex Altari, says, that they are Offerings either in Bread or in Money, or consisting in other minute Oblations, vulgarly called Altaragium. Const. Otho. cap. Auditu, verb. Proventus, Gloss. ibid. Which word extends itself also to all things pertaining to the Altar, and relating to the Ornaments thereof, which were by the Canons and Constitutions of King Edgar, An. 967. to be Mundissima & apprime Concinnata: Canon. 42. Edgar. Reg. e Veterrimo MS. Codice Saxonico, College. Corp. Christi Cantabrig. But this cannot refer properly to the word Altaragium otherwise than in sensu largo; for by the genuine signification thereof is meant only the Obventions, Oblations, and Profits of the Altar, not the Ornaments thereof.

(2.) In Cardinal Otho 's days, about 170 years since, this Provenue of Altarage was most grossly abused by many of the Clergy insomuch that he made a most severe Canon or Constitution against the Offenders in that kind; for in these days (as he observes in the Canon) these Miserable Priests (for so he there calls them) to advance the profits of their Vicarages out of their ravenous Covetousness, by the excessive gain of their Altarages, would admit none to their Penitential Confessions, unless they first deposited some Money, in pursuance of a precedent Compact (as the Gloss has it) by way of a Simoniacal extortion, far exceeding the allowed and accustomed Altarages or Oblations of the Altar: And therefore, first declaring them not only unworthy of all Ecclesiastical Benefices, but also of the Kingdom of God, did Decree, That the Bishops in their respective Dioceses should make a most exact Enquiry touching this horrid abuse, and that all such as were sound guilty thereof, should be removed from and deprived of the Benefices they possessed, and for the future be rendered incapable of all Ecclesiastical Preferments, and wholly suspended from their Function forever. Constit. Otho. Ne aliquid exigatur pro Sacramentis, fol. 6. verb. Auditu. Notwithstanding which there being then in use and practice another kind of Simoniacal Artifice to advance the excess of Altarages, by Letting them and other Ecclesiastical Revenues and Profits of the Church to Farm, another Canon or Constitution was then also Decreed, inhibiting and forbidding all such Farms of Altarages in any kind for the future: Where John de Aton in his Gloss upon that Canon says, it was Constituted for the prevention of Simony; and there takes the occasion to put the Question, Whether it be lawful to allow a Parochial Chaplain for his stipend the Annual Obventions of Altarage in whole, or in part? the Negative seems (says he) to be in • erred from the Text of that Canon; but in his own opinion he is of another judgment, because it matters not, whether his Salary be paid in Money or any other Ecclesiastical thing; and concludes, that an Assignment of such Altarages may safely be tolerated; and that the Priest to whom Altarages are due, may appoint his Proctor to collect the same, and being so Collected, may lawfully be assigned him for his Stipend: And although the Canon forbids the Letting to Farm the Altarages, and other profits of the Church, yet the Gloss holds that the Temporal Provenues of an Ecclesiastical Jurisdiction may be sold or lett to Farm; but not the Spiritual Right of the Jurisdiction itself. Ibid. Constit. N • Dign. tradantur ad firmam, verb. Ecclesias, & Gloss. ibid.

(3.) Note, upon Evidence to a Jury, between Brett and Ward, upon the dissolution of a Vicarage in the County of Warnick, which was part of the Priory of Dantry, where the Pope by his Bull gave to the Vicar Minutas Decimas & Altaragium. And it was certified by the Doctors, That Altaragium will pass to the Vicar Tithe-wool, &c. and the usage was shown in Evidence, and the Copy of the Popes Bull; and the Court would not credit that without seeing the Bull itself: And so the Plaintiff was Non-suit, and the Jury was discharged . Bulla, h. e. properly Vesicula aquae superfluens: But in this case a more reverend esteem was had of the Popes Bull. Bulla is also taken for the Boss of a Nail or Bridle: Hinc Bulla pro Sigillo & pro obsignato Diplomate, in primis literis Pontificum plumbeo sigillo notatis. Has literas Bullam vocant, quia plumbea bulla arctentur; quemadmodum apud Romanos bulla erat Ornamentum aureum, quod jungebat vestes: Est enim bulla tumor, & ornamentum illud, hoc Bullae nomen retinuit, quamvis in figuram Cordis esset fabricatum, ut refert Macro. in 1. Satur. quare aliquoties vestis ipsa Bullata Bulla nuncupatur; ita & liter •• Apost. Bulla plumbi munitae, Bullae nuncupantur. Gammar. Extra. Cum tam Divino.

(4.) W. Libels against G. in the Ecclesiastical Court for Tithes of Wool, Wood, a • d Apples, &c. and he shows that he was Vicar there; and that the 8 E. 1. there was a Composition, That the Parson should have the Tithes of Grain and Hay, & praeterea the Vicar should have Altaragium: And for that that those Tithes did not belong to the Vicar, he prayed a Prohibition. And Henden objected, That the Parishioner ought to set forth his Tithe, and not dispute the Title of the Parson or the Vicar; but the Vicar ought to come into the Ecclesiastical Court pro interesse suo: But notwithstanding that, and notwithstanding the Vicar refuses to claim those Tithes, and that always within memory they have been paid to the Parson, yet a Prohibition was granted: And in the end (upon the Composition) power is reserved to the Ordinary, if any doubt or obscurity be in the Composition, to expound or determine it; and if he please, to increase the part of the Vicar; and there was not power of diminution: As by Hutton, It is also usual in such Compositions; and they say, That the word Altaragium shall be expounded according to the use; as if Wood had always been paid to the Vicar by virtue of this word, so it shall continue, otherwise not: And so it had been Ruled in the Exchequer; and upon that President it was Ruled accordingly so in this Court: And by them Wood is Minuta decima, as in the case of St. Albans it was Ruled .

(5.) In a Trial at the Barr in an Action of Trespass, the Question arising between the Parson and the Vicar, as touching Tithe-Wood, and to whom the same belonged: As to this by the Opinion of the whole Court clearly, the Parson de mero jure ought to have the Tithe-Wood, if the Vicar be not Endowed of the same, or claims to have it by Prescription; but without such a Dotation or Prescription the same belongs to the Parson. Another Question was propounded for the Vicar, who entitles himself unto the Tithe-wood by these words [ Altaragium ] and Minutae Decimae, whether these words will carry the Tithe-Wood unto him or not: As to this, the exposition and true definition of this word [ Altaragium ] is considerable, and to whom this is due. [ Altaragium ] as was observed, is that which is due to be served at the Altar. Will • iams Justice, Altaragium is that only and properly which is offered at the Altar, and Minutae Decimae are the Small Tithes; also the word [ Altaragium ] will not carry Tithe-Wood: And this is the Question here, Whether the Vicar by this word [ Altaragium ] hath Title to the Tithe-Wood? Crook Justice, This word Altaragium doth not carry the Tithe-Wood, which are great Tithes, but Minutas Decimas, which are petit small Tithes; Minutae Decimae & Altaragia, the Vicar, as was urged, is to have them by his Composition, and that by these words he is to have Tithe-Wood. Fleming Chief Justice, There is an Usage here laid in the Vicar to have the Tithe-Wood, by reason of these words, Altaragia & Minutae Decimae, the which the Vicar can no ways have, but by Prescription or by such a Usage; and so the same may pass by these words Altaragia & Minutae Decimae, and the Usage had accordingly: Also Sheaves of Corn have passed by Usage to the Vicar, by the words Altaragia & Minutae Decimae, and so it was Adjudged in the Court of Exchequer. The Judges all agreed in this, That by these words Altaragia & Minutae Decimae, by Usage, Tithe-wood may well pass; and so hath the Opinion of all the Civilians been. Fleming Chief Justice, and the rest of the Judges agreed in this, That by Usage, the word Altaragia shall be accounted inter Minutas Decimas. Williams Justice, By the word Altaragia Tithe-Wood doth not pass; but if the Vicar have used to have the same, time out of mind, This is good, and shall pass under the words of Minutae Decimae. Fleming Chief Justice, Though the Law be against it, that Tithe-Wood doth not pass by these words, yet by Usage it hath been allowed good, to carry Tithe-Wood by these words, being of small value; and by such Usage Tithe-Wood may pass, though the Law be against it.

CHAP. XXXII.

Of Tithes.

• 1. What Tithes are; the Original thereof in England; with the Division and Subdivision thereof.
• 2. Whether the Quotity be Moral, or only of the Ceremonial or Judicial Law? The Institution of Tithes; the lawfulness thereof under the Gospel; it is Sacrilege, Theft, and Robbery to withhold them.
• 3. The Common Arguments against the payment of Tithes, Answered.
• 4. A Fourfold Division of Tithes under the Levitical Law.
• 5. The Schoolmens conceit touching the Division of Tithes in allusion to the Division of the Law of Moses.
• 6. Tithes anciently Ecclesiastical are now Temporal Inheritances; several Laws touching Tithes in general.
• 7. What the Common Law of England understands by Tithes: The first obstruction thereof by Charles Martel.
• 8. The supposed Reason, why Tithes before the Lateran Council might be paid to any Church or any Priest: The original Division of England into Parishes.
• 9. The Exact provision anciently, as well before as since the Conquest, made by the Sovereign Kings and Princes of this Realm for the due payment of Tithes.
• 10. The Supposition of the Par • chial Right of Tithes to be settled by a Canon of the Council of Lateran, Contradicted.
• 11. Whether a Parson may make a Lease parol of his Tithes.
• 12. Tithes discharged by Unity of possession.
• 13. A Covenant between Parson and Parishioner touching Nonpayment of Tithes.
• 14. Whether Proof by one Witness in case of Tithes, ought to suffice in the Ecclesiastical Court.
• 15. Tithe-Wool, and Rotten Sheep; Tithe-Calves.
• 16. Tithe-Headlands; Tithe-Wool; Lamb and Wool included in Samll Tithes.
• 17. Tithe-Wool of Sheep depastured in one Parish and shear'd in another.
• 18. Suit for the Tithe-Grass of a Riding Nagg.
• 19. Modus decimandi touching Tithe-Wool, and Lamb.
• 20. Park-Tithes; Buck and Do not tithable; what Partridges and Pheasants are not tithable.
• 21. Saffron, whether it be Small Tithes; Venis • n not tithable.
• 22. Prohibition for not allowing Proof by one Witness.
• 23. An Action of the Case lies against a Parson, that takes not away in due time his Tithe-Corn set out.
• 24. The Parishioner not obliged to divide the Tithes into Moities, where two persons have portion of Tithes by halves.
• 25. A Custom of not tithing the odd Sheafs, good.
• 26. Whether Tithes shall be paid of the Glebe leased to a Farmer.
• 27. Whether Tithes may be Leased or Released without Deed?
• 28. A Parson may Sue in the Ecclesiastical Court pro modo Decimandi.
• 29. Whether that Court may proceed therein in case the Modus be denied.
• 30. In what case the Right of Tithes is triable in the Exchequer.
• 31. A Case in Law touching Prescription, and of Tithes of a Park Disparked.
• 32. What things are reputed Majores, what Minores Decimae, and how they may vary according to the Circumstances.
• 33. Whether Tithes are payable of Cattle for the Dairy or the Plough?
• 34. Whether a Dean and Chapter be capable de non decimando their Lands?
• 35. Touching Tithe-Herbage of young Cattle, of Hedge-stuff, of Orchards, and the Custom of Hearthy-penny.
• 36. Tithe-Fish, Customary Tithe; whether Prohibition or not.
• 37. Acorns tithable, if sold; whether Pigeons, if spent in the house.
• 38. Several Cases touching Discharges of Tithes.
• 39. Hay of Headlands, whether tithable?
• 40. Prescription for discharge of Tithes upon payment of 10 s. per ann.
• 41. A Forest in the Kings hands is privileged of Tithes, not so in the hands of a Subject: The Right of Tithes between Parson and Vicar, triable in the Ecclesiastical.
• 42. Whether Tithe shall be paid for Hedge-boot and Fire-boot?
• 43. Touching Tithe of young Cattle, of Hedging and Fencing, of the Herbage of Heifers and Horses, of Dry-Cattle, and of Gardens; how far tithable, or not.
• 44. Apples stolen out of the Orchard, not tithable; no Tithes of Pasture of Milch-kine grown dry▪ unless kept for Sale.
• 45. Composition for Tithes for life; not good without Deed.
• 46. Estovers burnt in the house, not Tithable. The Hearth-penny good by Prescription.
• 47. A Composition for Tithes de anno in annum.
• 48. The Modus decimandi is Suable in the Ecclesiastical Court, as well as the Tithe itself.
• 49. Pro • ibition in case of Libel to prove in perpet. rei memo.
• 50. Custom of Tithe-Grass Cocks as to both Mathes.
• 51. In a Prohibition upon matter at Common Law, and not within the Stat. of 2 E. 6. 13. the Suggestion need not be proved in Six months.
• 52. Tithe-Hay of Headlands; Custom and Prescription.
• 53. Tithe-Hay of Heathlands; also Tithe of Pigeons.
• 54. Minute Tithes to the Vicar.
• 55. Tithes to Parson and Vicar may amount but to one Action.
• 56. The Curate may not Prescribe in Tithes against the Parson.
• 57. Curates may sue for Pensions in the Ecclesiastical Court.
• 58. By the Civil Law, the Parson to have Notice when Tithes set out.
• 59. Action on the Case against a Compounder for Tithes Suing in the Ecclesiastical Court.
• 60. Modus decimandi by one may hold as to others for a Prohibition.
• 61. Composition for one year good without Deed, not if for years.
• 62. Tithe-Hasel, Holly, Willow, Whitethorn: Whether the Parishioner shall preserve the Parsons Tithe for him.
• 63. Testis Singularis not sufficient to prove payment of Tithes in the Ecclesiastical Court.
• 64. Composition for Tithes, and a Prohibition thereon.
• 65. Tithes taken away by a Stranger after they are set out, the Parsons remedy lies at the Common Law.
• 66. In what Case no Costs upon failure of Proof of the Suggestion within the Six months.
• 67. Modus Decimandi may be Sued for in the Ecclesiastical Court, where if denied, they are to surcease.
• 68. Custom in Cornwall touching Tithes of Sea-f • sh.
• 69. In what Case an Agreement for Tithes for years may be good without Deed.
• 70. In what Court Tithes of Rents in London may be Sued.
• 71. A Collector of Tithes cannot License a Parishioner to carry away his Corn.
• 72. Whether Debt lies for Treble damages upon Fraudulent setting forth of Tithes.
• 73. Tithes, whether they belong to the Parson or the Vicar, cognizable in the Eccles • astical Court, where the Right of Tithes is confessed.
• 74. The Ecclesiastical Court not Judges of the Bounds of a Parish.
• 75. Modus Decimandi in reference to a Park.
• 76. A Fr • udulent setting out of Tithes, is no setting them out at all.
• 77. The Vicar shall have Tithe of Rape-Seed, being within a Prescription, though a new thing in England.
• 78. What the word Garba signifies.
• 79. Whether Wood in its own nature be great Tithes; and in what case it shall pass by the words de minutis Decimis.
• 80. If two Titles of Tithes unite in one person, there need but one Action for them.
• 81. A Parson may not set a Lease for years of Tithes per parol only.
• 82. If a Parson be disturbed in carrying away his Tithes se • out, his Remedy lies properly in the Ecclesiastical Court.

(1.) TITHES [Dismes, Decimae ] probably an abbreviation from the Saxon, Teo • un • , or Tithing, properly Decuria in that Language. Lamb. Expl. of Sax. words, verb. De • uria. That the Apostles and Elders at Jerusalem were competently supplied by the Contributions of the Jewish Proselytes, is very conjecturable in that they sold their possessions, and brought the price thereof and laid it down at the Apostles feet; and such as then planted the Gospel, and labor •• in the Word and Doctrine, had their maintenance by the Contributions of their Converts. Vid. Council. Grang. Can. 7, & 8. And St. Cyprian writing to his Church of Carthage, Epist. 33, & 34. to receive Aurelius and Cellerinus, Confessors, saith in Epist. 34. Presbyterii honorem designasse nos il • is jam sciatis, ut & sportulis iisdem cum Presbyteris honorentur, & Divisiones Mensurnas aequatis quantitatibus partiantur, Know you, that we have already designed to them the Dignity of Presbytership, that they might be honored with such allowances as Presbyters have, and receive equal shares in the Monthly Dividends. So that Sportulae were the allowances, which in this Infancy of the Gospel the Presbyters had out of the Contributions of the Converts. And the Fratres Sportulantes mentioned by him in Epist. 66. were the Clergy which received such allowance. These Converts (after the Conversion of Constantine the Emperor) many of them being Governors and Nobles, settled great and large Demesn-Lands upon those who Converted them; and that (according to Mr. Seldens conjecture) the first Oratories or places of Public Worship, were built in the Lands bestowed on them; which first Oratories were called Cathedrals, Sees, or Seats, from their constant Residence thereon. That the Christian Church even in times of Persecution laid claim to Tithes as due Jure Divino, is partly confessed by Mr. Selden himself, citing some passages in the Ancient Fathers to that purpose. But when the Empire became Christian, then the Christian Clergy did more earnestly press the Donation of Tithes; and in process of time they prevailed, not only by Preaching and Canons, but by the Edicts of Emperors and Kings, to have Tithes given to the Church. And it appears, that the Roman Empire, where ever it did reduce any Conquered Country in formam Provinciae, appointed the Farmers of the Customs, to collect among other Impositions the Tenths of the Tenants of the Empires; that is, of all who occupied any Land in the Conquered Province, either as immediate Tenants to the Empire, or as Sub-Tenants under them. The Publicans therefore who collected these Tributes were called Decumani, as Mr. Selden, pag. 39. of his History of Tithes doth observe out of Appian. But whether these Tenths were received by the Senate or Emperors, upon a Civil or Religious account, is not liquid and clear: For the Emperors always till Christianity came in (nay Constantine and other Emperors even after Christianity was received, till Gratian 's time, as the Noble and Learned Duplessy in his Mystery of Iniquity observes out of Zosimen ) continued the chief Pontifice or High-Priesthood in their own persons. And as touching us here in England, Dr. Heylin, P. H. Treleyny, in his Treatise touching Tithes, p. 3. saith, Tithes are not given to the Ministers by the People; for Sr. Ed. Coke on Litt. Tenures, lib. 1. c. 9. Sect. 73. fo. 58. asserteth, That it appears by the Laws and Ordinances of Ancient Kings, and especially of King Alfred, That the first Kings of this Realm had all the Lands of England in Demesn, and Les Grande Manors & Royalties they reserved to themselves, and with the Remnant they for the defense of the Realm enf • offed the Barons of the Realm with such Jurisdiction as the Court Baron now hath. And at this time, when all the Lands of England were the King Demesns, that Ethelwolph the Second Monarch of the Saxon race (his Father Egbert being the first, which brought the former Heptarchy under one sole Prince) conferred the Tithes of all the Kingdom upon the Church by his Royal Charter. Of which Ingulph Abbot of Crowland, An. 855. saith, That King Ethelwolph with the consent ( gratuito consensu ) of his Prelates and Princes, did first enrich the Church of England with the Tithes of all his Lands and Goods. Many other Laws of the Saxon Kings for the payment of Tithes are recited by Mr. Selden, as entirely the Gift of Kings: And so saith King Elred, Nemo auferat à Deo, quod ad Deum pertinet, & Praecessores nostri concesserunt. The whole Bishopric Anciently was in a large sense a Paroecia, and the income of it (by Contributions first, and by Tithes also afterwards) was the Common stock of all the Clergy of the Diocese; and Mr. Selden asserts it to be the general Opinion of all the Common Lawyers, That before the Lateran Council, under Innocent 3. every man might have given his Tithes to what Church he would (probably within the Diocese) because they were not the Propriety as yet of any one Presbyter, but the Common Patrimony of all the Diocesan Clergy. So that Tithes are a Tenth part of all increase Tithable, due to God , and consequently to his Ministers that wait on the Altar. These are divided into Three sorts, 1. Praedial Tithes, arising only either of the Fruits of the Ground, as Corn, Hay, Hemp, and the like; or of the Fruits of Trees and Orchards, as Apples, Pears, and the like. 2. Personal Tithes, arising of the profits that come by the labor and industry of Man, either by Handicrafts, as Carpenters, Masons, and the like; or by Buying, Selling, or Merchandizing. 3. Mixt Tithes, arising partly of the Ground, and partly of the Industry of Man, as of Calves, Lambs, Piggs, Milk, Cheese, and the like . No Tithes shall be paid for such things as do not increase and renew year by year, by the Act of God . Of Praedial Tithes some are called Majores, vulgarly termed the Great Tithes: others Minores vel Minutae, vulgarly the Small Tithes. The Great, such as Wheat, Rye, Hay, &c. The Small, such as Min • , Annis, Cumin, &c. . And commonly with us here in England we compute Flax in the number of Small Tithes (which is a Praedial Tithe) as also Wool, Milk, Cheese, Eggs, Chicken of all kinds, Lambs, Honey, Bees-wax, and the like, Vid. Lindw. cap. de Decimis. In Ancient times the Laity were so far from subtracting their Tithes, as is the common practice of these days, that ofttimes they would give more than was due or demanded; and were so Conscientious in the payment thereof, as at their death they usually bequeathed a Soul-Sceat to their Parochial Priest in lieu of any Tithes forgotten; and at their Funerals caused their best Ox or Horse to be led with the Corps, and as a Mortuary or Oblation given to the Priest in recompense of any Tithes, which possibly in their life-time might have been omitted to be paid. But in these latter Ages (not regarding what S. Jerome says) That Fraudare Eccelsiam est Sacrilegium , all Artifices imaginable are put in practice to subduct the Tithes; and therefore to enforce the due payment thereof were the Statutes of H. 8. and Ed. 6. made and enacted .

2. Covarruvias, with other Canonists and Schoolmen, holds, That by the Moral Law the rate or proportion of Tithes is not necessarily to be the Tenth part of the Fruits; which the more received Opinion holds to be both Erroneous and Mischievous; and that by the Law of God and Nature, no Custom deviating from the exact rate and proportion of the Tenth of the Fruits, ought to prevail any longer than by the free and mutual consent of Parson and Parishioner: For which reason it is supposed, That the paying of a Halfpeny for a Lamb, or a Penny for a Calf, by such as have under Seven in one year, is now become an unreasonable Custom, in regard the value of such Lambs and Calves is now raised four times higher, than in Ancient times. This seems far remote from Tithes, the very Quotity whereof seems to be Moral , rather than Ceremonial or Judicial; and not only allowed or approved, but even commanded by our Savior himself : Yea, by the very Law of Nature (which is the ground of the Moral Law, and long before the Levitical) Tithes appear to be due, in that Abraham paid it to Melchizedek: And God himself (who is the best Interpreter of his own Law) calls the detention of Tithes Sacrilege . And that Command of Christ, affirming that Tithes ought to be paid of all, even to the very Herbs, spoken by him at the period of the Levitical Law, ought not to be restrained only to the Priesthood of Aaron; for it doth now remain in force as to Priests under the Gospel, as that other part of the Moral Law, Thou shalt not steal, the withholding of Tithes being expressly interpreted Theft and Robbery by the Prophet . And lest it should be thought a mere Human Interest, or in the power of Man to alienate, God himself hath vouchsafed to take Tithes upon his own account in his Ministers behalf. These Tithes could not be merely Ceremonial (as some would have it) for they prefigure nothing, nor are they repealed by any one Text in the Gospel, but reinforced as aforesaid: so that whatever was commanded in the Old Testament, and grounded on the Law of Nature, and being not Repealed in the New, must yet stand in force, as a Duty of the Moral Law. And if it be Objected, That Tithes were not paid in the Primitive times of the Christian Church; the Reason is, not because they were not then due, but because there was not then any such settled Order for things of this or the like nature in the Church.

(3.) Wherefore all the Common Objections made against the payment of Tithes in the Christian Church may be reduced to one of these Four: (1.) That our Savior gave no Command to his Apostles to take Tithes, but rather on the contrary said, Freely ye have received, freely give.—Answ. Yet our Savior says, These things (speaking of Tithes) ought you to have done . And says, The workman is worthy of his meat . And St. Paul says, The Labourer is worthy of his Reward . Where hath Christ in totidem verbis forbidden Sacrilege? wilt thou therefore commit it, because he hath not in terminis terminantibus forbidden it? Thou that abhorrest Idols, dost thou commit Sacrilege ? (2) Tithes were not paid till about three hundred years after Christ, as Tertullian, Origen, and S. Cyprian do testify. Answ. These Fathers do withal acknowledge, that during that time the Churches Maintenance was the Peoples free Contribution; which probably might have continued to this day, had not that Contribution in process of time turned into a Sacrilegious Century by Covetousness, instead of a Commanded Decuma as a Duty Morally enjoin'd. (3.) That Tithes came first into this Kingdom by the power of the Pope, as by Pope Adrian in the time of Offa King of Mereia, during England's Heptarchy, in An. 786.— Answ. Possibly it might be so; what follows thence? does a thing lawful in itself become unlawful, because a Pope enjoins it? what if he had commanded Alms to be given instead of Tithes? must we therefore be neither honest in payment of the one, nor charitable in giving the other, because there was a Command of a Pope in the case? (4.) That AEthelstane, Edmond, Edgar, Canutus, and AEthelwolfe, Kings of England, Ordained the payment of Tithes merely to pacify their Consciences, and thereby to make Atonement for their Blood-guilty Souls.— Answ. Admit it were Historically true, yet the final Cause of any Action, or the End for which a thing is done, alters not that quality that is inherent naturally in the thing: A thing lawful in itself commanded for a wrong End, perverts the Action, not the thing; if a man gives Alms that the Poor may be drunk, though that be no Alms, yet it doth not render Alms as unlawful, nor alter that quality of Charity which is inseparable from Alms.

(4.) Tithes Anciently were Fourfold, as (1) That which the People paid to the Levites . (2) That which the Levites thence paid to the Priests . (3) That which the Jews reserved for Expence in their Solemn Feasts, when they went to the Tabernacle or Temple . (4) A Third years Tenth, which was then laid up for the Levite and the Poor . The first of these is held a Natural, Moral, and Divine Tribute; the second and third Ceremonial; the fourth Judicial. The Jews had also their Theruma, which was not properly Tithe, but a second kind of First-Fruits: There were two kinds hereof, the one called the Great Theruma, the exact quantity whereof was not defined by Moses; but the Ancient Lawyers determined, that it might not be less than the fortieth, fiftieth, or at least the sixtieth part of the kinds already dressed and prepared, as Wheat Fann'd, Oil and Wine, Corn in the Ear taken from the heap and given to the Priests . The other was the Lesser Theruma, which was, that when the former was taken away for the Priests, the rest of the Heap was Tithed for the Levite, the tenth part whereof the Levites gave to the Priests, which was called the Tithe of the Tithe, or the Theruma of the Tithe.

(5.) Because the Law of Moses hath been divided into Three parts, viz. Moral, Judicial, and Ceremonial, some of the Schoolmen have thence conceived, That Tithes admit the like division, whereof the Moral part was only a necessary Maintenance for the Minister, and therefore natural and perpetual: The Judicial part was the number of Ten, as fit only for the Jews, and therefore positive and remotive: The Ceremonial part was the Mystery contained in this Number of Ten, which being (as they taught) but a shadow only, was vanished and abolished with the Law itself; and thence infer'd, that the Quotity or precise number of Ten being taken away by reason of the Ceremony, a competency now only remains for the Minister out of the Tithes: This Conceit hath occasioned no small prejudice to the Church, although it hath no more probability of truth in it, than that whereon it is grounded, viz. That the Number of Ten is a type of Christ, and that the inferior Digits do signify the People. Levi himself paid Tithes to the first Priest we ever read of, that is, he paid them in Abraham, which being urged by the Apostle against the Levitical Ceremonies, argues, that they are more than merely Levitical and Ceremonial; indeed if we consider their assignment to Levi 's Tribe, they are such, but not otherwise. The Sabbath and Tithes were both before the Law in their very Numbers respectively , and were but repeated by Moses under the Law, because they had been approved of God before the Law in the self-same Numbers. The Sabbath is said to have a Moral and a Ceremonial part: The Moral is perpetual and unalterable, which is, that God should have a Seventh day; the Ceremonial being Typical of our Rest in Heaven is only positive, and not so unalterable, but that it might be (as it is) changed from the Seventh day of the Creation, to the Seventh after our Savior's Resurrection: So Tithes, they also have a Natural and a Positive part; the Natural is permanent and unalterable, which is, that God hath reserved to himself a Tenth of the increase, &c. for the Maintenance of his Ministers; in which sense immediately after the dissolution of the Jews policy, the Christians of the Primitive Church, as soon as they could get any outward form of a Church, and peace from Persecution, received it in the very Quotity: the Positive is, That the Lord annexed those Tithes by Moses to the Priests and Levites for their maintenance, during the dispensation of the Mysteries under the Law, and th • refore changed by the Christians in the Primitive Church to the Christian Ecclesiastics ; so that how this Quotity can be changed into a Competency, s •• ms neither demonstrable nor warrantable by the Word of God, but that the Quotity ought to remain as a perpetual Right due to God and his Church. And if any shall argue, that Tithes are not to be paid or required in a Protestant Church, because they have been ever so upheld in the Church of Rome; such may as well argue, they ought not to be paid in a Christian Church, because they are paid to Mohammedan Princes, for so they are, and that because they were Priests; for every Husbandman is bound to pay for Tribute the Tenth part of all his Corn to the Patriarch for the use of the Prince, the relief of Impotent people, and Widows, and for maintenance of War against the Enemy. Purch. Pilgr. lib. 6. cap. 1. §. 3. p. 803. nu. 10.

(6.) Tithes, which anciently were merely Ecclesiastical, are now made Temporal Inheritances; therefore are they Assets in the hands of the Heir, the Wife endowed of them, and the Tenant by the Courtesie shall hold them . They are not grantable for life, or years, or for a longer term than one year, but by Deed . They cannot be extinguished by a F • offment of the Land, nor pass by a Devise of Lands, with all profits and commodities thereto belonging; and yet may be exchanged for Temporal Inheritances . Anciently and at the Common Law there were none qualified to receive them, but either an Ecclesiastical person, or a mixed person as the King. They are not extinct by their coming into any hands, but of the Parson himself . And that which is given in lieu of them is turned into a Spiritual Fee . It is not paid more than once for one and the same thing in one and the same year, and that only for the neat and clear profit of the thing Tithable . It must be paid in kind, if there be Corn now where Wood grew before, or Wood planted now where Woodlands formerly were. And the Law allows the Parson a convenient time to remove the Tithe; which circumstance of Time and the convenience thereof is triable by a Jury; and if the Parson exceed the Time, the Parishioner may have his Action against him as a Trespasser ab initio . And some conceive, that the Parishioner is not bound to give the Parson Notice when he doth set forth his Tithe . By the Civil Law the Parishioner ought to give the Parson Notice when the Tithes are set forth; but it hath been Adjudged, that the Common Law doth not so oblige a man . But a severance of Nine parts from the Tenth part there must be, for such Severance is so necessary, and in a kind so essential to Tithes, that they are not due, nor is it Tithe within the Statute of 2 Ed. 6. until such Severance be made. Yet the Parson may Grant his Tithes growing upon the Land, before Severance; which ought to be made by the Owner of the Land: for though the property of Tithes set out by the Owner of the Land belongs to the Parson, yet it is otherwise if they be set out by a Stranger . And in case the Land be not in any Parish, then the King shall have the Tithe thereof by his Prerogative and by the Custom of England . But where Lands in themselves Tithable, are not manured or ploughed, specially in prejudice to the Parson, in such case he may notwithstanding Sue the Occupier thereof in the Spiritual Court for the Tithes of that Land . But if the Parishioner duly sets forth and severs the Tithe in convenient time, and after Dammage happen to him by the Parsons not taking the same away in like convenient time, in that case the Parishioner may have his Action on the Case against the Parson

(7.) The Common Law of this Realm takes notice of Tithes by the word [ Dismes] (Decimae ) of the French ( Decimes ) signifying Tithe, or the Tenth part of all the Annual Fruits, either of the Earth, or of Beasts, or Mans labor and industry, due unto God, and consequently to him that is of the Lord's Lot, and hath his share by his special appointment: It signifieth also the Tenths of all Spiritual Livings, yearly given to the Prince, called a perpetual Disme , which anciently were paid to the Pope, until Pope Urban gave them to K. Richard the Second, to aid him against Charles the French King, and such others as upheld Clement the Seventh against him as aforesaid . It signifieth likewise a Tribute levied of the Temporalty . But here it is to be understood, as Quota pars omnium bonorum licite quaesitorum, Deo Divina Institution debita; which though according to the Canon Law is a Tenth of Annual and lawful Encrease commanded to be paid to the Sons of Levi for their maintenance in consideration of their Ministry; yet at the Common Law it is an Ecclesiastical Inheritance collateral to the Estate of the Land, and of its own nature due only to Ecclesiastical persons by the Ecclesiastical Laws . The Practice whereof never met with any considerable interruption in any Age, until Charles Martel 's Sacrilegious Infeudations of Tithes, about the year 650. which ushered in such a President into the Christian World, as could never to this day grow obsolete and out of use. Notwithstanding from the beginning it was not so, nor did any Lay-persons pretend to Tithes originally, nor legally till the Statutes of Dissolutions of Abbeys made them capable thereof, whereby the Tithes appropriated to such Houses of Religion as were dissolved became a Lay-Fee, and Suable by the Laity in the Kings Ecclesiastical Courts.

(8.) Where in the Books of the Common Law it is Reported, That before the Council of Lateran, every man might give his Tithes to what Church he pleased, and might have bestowed them upon what person he thought best; there it is also asserted for reason, That before that Council there were no Parishes, nor Parish-Priests that could claim them. But by a Canon made in that Council, every man is since compellable to pay his Tithes to the Parson or Vicar of that Parish where the Tithes arise . Here may arise a question, Whether there were not Parishes long before any Council at Lateran? For admitting that the Second Lateran Council was held in the year 1120, as S. Tho. Ridley computes it , or that the general Council of Lateran was held in the year 1179, as Sir Simon Degge calculates it , yet there seems of be a division into Parishes some Centuries of years before either of these: For it is said, That Cities and Countries were divided into several Parishes by an Ordinance of Pope Dionysius about the year 266 , and from him derived into this and other Realms: Also, that Ecclesiastical persons first in this Kingdom made Divisions of Parishes, as appears by our own Chronicles ; and that the first Practice thereof came from Honorius the 4th Archbishop of Canterbury after Augustine, who died in the year 693 . And such as have followed the course of Antiquity in this matter, conceive that the original of Parishes had its President from the practice of some Ancient Roman Bishops, it being (as some would have it) recorded in the Pontifical of Damasus; but in Anastasius 's Bibliothecar, it is found, That when Peter had appointed and ordained Priests, &c. and Cletus had reduced them to a certain number, Pope Euarist assigned to each of them his Parish; and as to the time when those Parishes were assigned by Euarist, it must be about the beginning of the second Century, which was many Centuries before the C. of Lateran, as also was the practice thereof here in England by Honorius, as aforesaid, the truth whereof is approved by Cambden. But Cavendum, &c. saith Marsil in his Book De Red. Eccl. c. 12. heed must be taken as to the word Parish, for it is equivocal, having various acceptations, as sometimes when nothing is named but a Parish, the whole Diocese is understood, which notion of the word often occurs in the Councils; in which sense Barbatia spake a wide word for the Pope in his Tract. de praest. Card. when he said, that in respect of his Holiness, the whole world was but one Parish. Sometimes a Parish is taken for such a part of the Diocese, as was assigned to some Priest, arbitrarily sent and maintained by the Bishop; to whom such a Parish paid all their dues, and he to his Clergy▪ about which time this custom was introduced, that all Church-dues should be at the Bishops disposal, to be divided into four portions, whereof he should have • part for himself, another for his Clergy, a 3d for the Poor and Strangers, and the 4th to be reserved to the Parishioners for the repairing of Churches; the collection of which dues was committed to the care of the Chorepise. from which Quadripartite division probably came that custom whereby the Bishop of every Diocese might before the C. of Lateran make distribution of the Tithes within his Diocese, where he thought convenient to Spiritual persons, for their necessary maintenance . If the original of a Parish in the 2 former acceptations were a device of the ancient Rom. Bish. & from them derived to other Nations, then probably from the inconveniencies thereof might be the beginning of a Parish, as it is taken for su • h a part of the Diocese, as is limited to some Residentiary Incumbent, allowed by the Bishop, and maintained by the Church-dues in his own Right; which consideration of a Parish seems most of all agreeable with those which we now have, and were in use with us before Edgar 's days, as appears by the Saxon Laws of that time.

(9.) The Ancient Kings and Sovereign Princes of this Realm, both before and since the Conquest, have ever made special Provision for the due payment of Tithes unto the Church, and that ever since there was any Church-Government in this Land; witness that Law made before the Conquest by King Aethelstane, That every man should pay his Tithes in manner as Jacob did, that is, of all that God should give him. The like did King Edgar and King Edmund command on pain of Excommunication. And about the Seventh Century Ina King of the West-Saxons made a Law, That the Church-Sceat be paid at Martlemass, on pain of paying twelve times as much in case of Refusal: this Church-sceat Fleta interpreteth Church-seed, and therefore calls it Certa mensura bladi Tritici, &c. Others read Church-scet, that is, the Church-shot or Church-due: Also the said King Aethelstane in the Ninth Century made a Law by the Advice of Walfehelme his Archbishop, and his other Bishops, Commanding all his Reeves throughout all his Kingdom in the Lord's name, and of all Saints, that in the first place they pay the Tithe of his own Revenues, as well in Living Cattle as the yearly Fruits. Likewise King Edmund at a Synod holden in London, at which Oda and Wul •• tan Archbishops, and many other Bishops were present, made a Law, Commanding all Christian men by their Christianity to pay Tithes, Church-sceat, and Alms-fee; if any refuse to do it, let him be accursed. This Alms-fee or Alms-money was that, which was called the Peterpence; for when Ina the West-Saxon King went in Pilgrimage to Rome, he made it a Law to his Subjects; That every House should pay a penny to the Pope; and this was to be tendered at St. Peters -tide, as appears by Edgar 's Law, nu. 4. In the Laws also of King Edgar it was Decreed in the first place, That God's Church should have all her Rights, and that every man should pay his Tithes to the Elder Minister (or Mother-Church) where he heareth the Word, cap. 2. of Edgar 's Laws. And in the Eighth Chapter of King Rnutes Laws it is Ordained, That care be taken rightly to pay God's Rights every year, viz. the Plough-Alms fifteen Nights after Easter, the Tithe of young Cattle by Whitsuntide, and the Fruits of the Earth by Allhallentide; otherwise, the Kings Reeve, and the Bishop may take the Tenth part whether he will or no, and give it to the Minister whereunto it belongeth. Also by the Laws of Edward the Confessor, nu. 8. & 9. it was Decreed particularly, that Tithes should be duly paid De Garba, Grege Equarum, Pullis, Vaccis, Vitulis, Caseo, Lac • e, Vellis, Porcellis, Apibus, Bosco, Prato, Aquis, Molendinis, Parcis, Vivariis, Piscariis, Virgultis, Hortis, Negotionibus, in a word, omnibus rebus quas de derit Dominus; which Decree was afterwards ratified by the Conqueror. Afterwards King Edward the First at the Petition of the Clergy, established the Articles of the Clergy, which his Son Ed. 2. Confirmed by his Letters Patents under the Great Seal, and by Consent of Parliament, at the Petition of the Clergy in the Ninth year of his Reign. And by the Statute of 1 R. 2. cap. 14. it is Acknowledged, That the Cognizance of Tithes of right doth, and of Ancient time was wont to pertain to the Spiritual Court. Also the Cistercians, who had purchased Bulls from the Pope to be discharged of Tithes, in the Second year of H. 4. were by Act of Parliament after reduced to the state they were in before. And in the Fifth year of H. 4. it was Ordered, That such as held Lands belonging to any Friers-Aliens, should pay all manner of Tithes to the Parsons and Vicars of the Parishes wherein the same were, notwithstanding their being seized into the Kings hands or any Prohibition to the contrary: For before the dissolution of Monasteries, &c. by King H. 8. Lay-men were not capable thereof, nor indeed after the Dissolution, notwithstanding the Statute of 27 H. 8. c. 20. could the People be well brought to pay their Tithes to the Lay-Purchasers thereof, not qualified to Sue for the same, until the Statute of 32 H. 8. c. 7. enabled them to Convent the Refusers before the Ordinary or other competent Judge, according to the Ecclesiastical Laws, without the Reserve of any cognizance for the Temporal Judge therein, otherwise than as to what refers to the Inheritance or Freehold of such Tithes, or in case of disseisin thereof; which was not only ratified and confirmed by a subsequent Statute made in the time of Edward the Sixth, but it was also then Enacted, That the Tithes should be paid as the Usage or Custom had been within forty years next before, and that under certain penalties and forfeitures in case of detention or subtraction (and of treble Dammages in some cases) the party so subtracting to be prosecuted in the Spiritual Court according to the Kings Ecclesiastical Laws.

(10.) Sir Simon Degge in his late useful Treatise, entitled The Parsons Counselor, par. 2. or Law of Tithes, cap. 2. discovers a vulgar Error touching the Original Settlement of the Parochial Right of Tithes: For whereas it is frequently said in the Books of the Common Law, That before the General Council of Lateran every one was at liberty to give his Tithes to what Spiritual Ecclesiastical or Religious person he pleased, and that the Parochial Right thereof was settled by the said Council; he says, there is not any Canon of that Council to any such purpose, whereby the Parochial right of Tithes was settled: Nor could it then be, for that the said Council was in An. 1179. but the Parochial Right of Tithes was not settled till the year 1200. and then not by any Canon, but by a Decretal Epistle of Pope Innocent the Third, a Brief whereof he there inserts out of Mr. Selden and Sir Ed. Coke. If this were an Error in them, it was so also in Lindwood, c. locat. & conduct. verb. portion. But possibly not such an Error in either as is conceived, for whether the Canon for the settling of Parochial Right of Tithes, made in the Council of Lions, 1274. were an Original Decree, or only a Confirmation of some former Canon to the same effect or not, clear it is, that the said Decretal Epistle of P. Innocent 3. obliged only the Province of Canterbury, to whose Archbishop it was directed: Lindw. c. nuper Abbates, de Decim. And in the Second Lareran Council, holden An. 1120. (being nigh 60 years before that abovesaid) it was Decreed by the said Innocent 3. That the Religious persons, viz. the Cistertians, Hospitallers, Templars, and those of St. Johns of Jerusalem (which by the Popes Paschal. and Adrian were exempted from payment of Tithes) should pay the same unto the Parochial Incumbents; whereby a Parochial Right of Tithes is settled by a Lateran Council.

(11.) At the Common Law it seems a Parson cannot make a Lrase Parol of his Tithes, but may discharge them per parol; for in Bellam 's Case against Belthrop it was Ruled by Doddridge, Jones, and Whitlock Justices, That where the Defendant in a Trover and Conversion of certain Loads of Fetches, justified under the Lord Clare by a Demise per parol for Tithes of Grain for one year made in April, that the Lease was not good, but altogether void; but the Parson may discharge the Parishioner of Tithes per parol, or Lease the Rectory consisting of Glebe and Tithes per parol for years .

(12.) In Skelton 's Case against the Lady Airie it was said that it was Adjudged Mich. 34 & 35 Eliz. That a perpetual union of the Parsonage, and the Land charged, is a sufficient discharge of the Tithes, and a Prescription may be well enough to be discharged of the payment of Tithes, as it appears by a Case put in the Archbishop of Canterbury 's Case, Coke lib. 2. G. Crook Counsel e contra conceived that a perpetual Unity was no perpetual discharge, and said there was no Judgment given in the Case cited before; he also cited 10 H. 7, or 6. where the manner of Tithing is set down; he also cited the Bishop of Winchester 's Case, Coke lib. 2. also the Prior of D. to be Resolved in 40 Eliz. That a Copyholder may Prescribe to be discharged of Tithes by pleading, That he was always Tenant by Copy to a Spiritual Corporation: and he said, That it was Adjudged in Sheddington 's Case, That if a man Prescribe to be discharged of payment of Tithes by reason of payment of another kind of Tithe, that this is not good .

(13.) The Parson of D. Covenanted with one of his Parishioners that he should pay no Tithes, for which the Parishione • r Covenanteth to pay to the Parson a certain Annual Sum of money, and afterwards the Tithes not being paid, the Parson sued him in the Ecclesiastical Court, and the other prayed a Prohibition: And it was agreed, That if no Interest of Tithes pass, but a bare Covenant, then the party who is sued for the Tithes hath no remedy, but a Writ of Covenant: And the better opinion of the Court in this Case was, That this was a bare Covenant, and that no Interest in the Tithes pass .

(14.) In Warner 's Case against Barrett in the Ecclesiastical Court, it was said by Richardson, That before the Stat. of Ed. 6. the proper Suit for Tithes was there, and if they allow not one Witness to prove payment, a Prohibition shall be granted. And he put Morris and Eaton 's Case in the Bishop of Winchester 's Case; where it was Ruled, if the Spiritual Court will not allow that Plea, which is good in our Law, a Prohibition lies, as in case of Tithes .

(15.) It was moved for a Prohibition; because a Parson had Libelled against a Parishioner for Tithe-wool of Rotten-sheep, which he ought not to have, because he shall have Tithe for the same thing at Shearing-time afterwards; as where Tithe is paid for the Cuttin • s of Grass, it shall not be afterwards paid for the After-math. It seemed otherwise to Doddridge and Jones, because it is for the same thing there, but here the Parson hath no recompense for the Wool. And Jones said, That if the Parishioner sell Sheep, the Parson shall have allowance of the Tithes thereof after the shearing: and upon this point a Prohibition was denied. Secondly, there is a Custom, that if a Parishioner hath three Calves, he shall pay a penny for the Tithe thereof; if seven Calves, then one Calf. The Parson sued for one Calf, because the Parishioner had three one year and four another, and for that he had no Tithe for the first three. And thereupon a Prohibition was granted .

(16.) In Huddleston and Hills Case it was said, That if a man Sue in the Ecclesiastical Court for Tithes of Headlands, the Defendant may have a Prohibition; but he ought then to suggest, That they are but small Headlands, and that there is a Custom of Discharge in consideration that he paid Tithes in kind of Meadows. And in this case Williams said, That if a man keep Sheep in one Parish until shearing time, and then sell them into another Parish; in this case the Vendee shall pay the Tithe-wool to the Parish where they were depastured in the greater part of the time of the growing of the Wool . And in the Case of one Nicholas and W. Ward, it was agreed, That Tithe Lamb and Wool was included within Small Tithes .

(17.) In Banco Regis a Prohibition was prayed, because a Parson had Libelled in the Ecclesiastical Court for the Tenth part of a Bargain of Sheep, which had depastured in the Parish from Michaelmass to Lady-day: and the party surmized, that he would pay a Tenth of the Wool of them, according to the Custom of the Parish. But the Prohibition was denied; for as Doddridge Justice said, By this way the Parson shall be defrauded of all, if he shall not have his Recompence, for now the Sheep are gone to another Parish, and he cannot have any Wool at this time, because it was not the time of shearing. Nota, per Whitlock, de animalibus inutilibus, the Parson shall have the Tenth part of the Bargain for Depasturing, as Horses, Oxen, &c. But de animalibus Utilibus, he shall have the Tithe in specie, as Cows▪ Sheep, &c. .

(18.) The Rector of the Church of D. Libelled in the Ecclesiastical Court for the Tithes of a Riding-Nagg, where the Case was, That a man lett his Land, reserving the running of a Horse for some time, when he had occasion to use him there: The Desendant shown this matter in the Court by his Council, and prayed a Prohibition, and abetts that for the same Land in which the Horse went he paid Tithes. And by the Court, nigh London, a man will take 100 or 200 Horses to Grass; now he shall pay Tithes for them, otherwise the Parson shall be deseated. But in this Case, if the Desendant allege and prove that it was a Nagg for labor, and not for profit, a Prohibition lies .

(19.) In the Case of Bowry against Wallington, where W. had Libelled in the Ecclesiastical Court against B. for the Tithes of Wool and Lamb, and B. upon suggestion of a Modus Decimandi obtained a Prohibition, and had an Attachment, and declared upon it, and are at issue upon the Modus▪ which is found for the Defendant, and Consultation granted; whereupon Judgment was given in the Ecclesiastical Court against Bowry, upon which B. appealed, and prayed a new Prohibition, and Noy moved for a Consultation; because that a Prohibition and an Attachment upon it are but one Suit, for the Contempt of the party in bringing his Suit in another Court, and translating this from the Kings Court, and when it is once Tried for the Desendant, the same thing shall not be Tried again. Note, That in this Case upon the Statute of 50 E. 3. 4. it was agreed by the Court, That a Prohibition awarded, and afterwards Consultation granted, that upon the same Libel no Prohibition shall be granted again; but if there be an Appeal in this Case, then a Prohibition may be granted, but with these differences, (1) if he that Appe • ls pray the Prohibi • ion; there he shall not have it; for then Suits shall be defer'd in infinitium in the Ecclesiastical Courts. (2) if the Prohibition and Consultation were upon on the body of the matter, and the substance of it, for otherwise he shall be put many times to try the same matter .

(20.) The Lord Rich was seized of Hadley Park, and of all the Tith • s thereof, and paid for the Tithes but one Buck in the Summer, and a Do in the Winter for 30 years past. The Park was disparked and turned into arable Land, and the Parson would not receive this Fee-Buck and Do, but would have Tithe-Corn, and thereupon sued in the Ecclesiastical Court, and he brought a Prohibition. And Catlin said, That • e need not pay other Tithes, but Buck and Do▪ for although they be not Tithable, yet may they be paid by Composition, and he may not take them, but they ar • to be delivered to him: And in like manner Partridges and Pheasants in a Garden are not Tithable, yet may they be paid in lieu of Tithes, and shall be brought dead to the Parson; and although there be no Park, yet may he give a Buck out of another Park, and perhaps it may be made a Park again .

(21.) The Case was, A Church in which there had been a Parson and Vicar time out of mind, and the Parson used to have the Great Tithes, and the Vicar the Small, and for the space of forty years last past, it was proved that the Parson had Tithes paid him out of a Field of twenty acres of Corn, and now the Field is sowed with Saffron, and the Vicar sued for the Tithes of Saffron in the Ecclesiastical Court, and the Parson had a Prohibition. Coke, I conceive the Parson shall have the Tithes, for by the Statute of 2 H. 6. it is Enacted, That Tithes shall be paid as hath been used the last forty years, and this hath been always Tithable to the Parson, and although the ground be otherwise employed, yet the Parson shall have the Tithes: And so was it in Norfolk in the case of a Park, where the Parson prescribed Pro modo Decimandi to be paid 3 • . 4 d. for all Tithes arising out of the said Park, and although the Park was afterwards converted to Arable, yet no other Tithes shall be paid. Popham, It hath been adjudged otherwise in W • oth 's Case in the Exchequer. But the Law is clearly as hath been said; and the difference is, when the Prescription is to pay so much money for all Tithes, or when the Prescription is to pay a shoulder of every Buck, or a Do at Christmas; for there if the Park be disparked Tithes shall be paid, for Tithes are not due for Venison, and therefore they are not Tithes in specie. And I conceive, that Tithes of Saffron-heads shall be comprehended under Small Tithes; and although the Tithes of this Field have been paid to the Parson, yet it being converted to another use, whereof no gross Tithes do come, the Vicar shall have the Tithes: And so if arable Land be converted into an Orchard, the Vicar shall have Tithes of the Apples; and so if the Orchard be changed to Arable, the Parson shall have Tithes. Quod Fenner concessit .

(22.) In one Hawkin 's Case, Libel was in the Ecclesiastical Court for Tithes for Lambs for seven years: And there he proved payment by one Witness, and a Prohibition was granted for Non-allowance of that Proof .

(23.) On the Stat. of 2 Ed. 6. c. 13. for setting out of Tithes, the Case was this: Corn was set out • or Tithes, and the Owner of the Land took the Corn Dammage feasant▪ but in the Declaration it is not shewn how long the Corn remained on the ground. And by the Court, it is not good, inasmuch as it doth not appear that the Owner of the Land had any Dammage at all, for he doth not show how long the Corn remained on the ground. And the usual course in such cases is, if Tithe be set out, and the Parson take it not away in due time, the party shall have an Action on the Case. By the Court, a man cannot distrain Shocks of Corn, but he may distrain a Stack Dammage feasant. But in this case it is not shewn how long it remained on the ground, and therefore it doth not appear that he was damnified. And so after the Tithe is clearly set out, the Parson may by the Statute have an Action of Trespass, if any take them away; but if only a mere Stranger set out the Tithe, that settles no property in the Parson, so as that he cannot have any Action for the taking thereof away .

(24.) It seemed clear to Noy, that if Two persons have portions of Tithes by halves in one Parish, the Stat. of Ed. 6. that appoints Tithes to be set out, doth not in that case oblige the Parishioner to divide the Tithes by halves, and to set out their parts singly; but the Parishioner ought only to set out the Tenth, insomuch that if the Tithe be of one Lamb, the Parishioner cannot divide it . And it hath been Adjudg'd, that the Parishioner is not bound to divide the Tithe into Moities, but the Parsons shall divide it between themselves .

(25.) Noy surmized against a Libel for Tithe-Sheaves, that the Parishioners are at the charges to bind the Corn in Sheaves, and for the better dividing thereof they use to make it up into Sheaves: and when it is made into Shocks, they put thereof into a Stack for the Tithes. And for that the Parishioners have been at this pains, they have used to be discharged of Tithes for the odd Sheaves, when they will not make a Stack. Adjudg'd a good Custom: and a Prohibition was granted, because the Parishioners therein do more than of Common right they are obliged unto .

(26.) The Case touching Tithe of Glebe-Land, Reported (as aforesaid) by Leonard to be between Style and Miller, is the same with that Reported by Owen to be between Style and Miles, misprinted: But the Case was this; Style Parson did suggest, That the Land was parcel of the Glebe of the Parsonage, and that the said Style did Lett the said Glebe, being twenty four acres to Miles for years, rendering thirteen shillings four pence Rent: and in a Prohibit on the Case was, if Tithes were to be paid. And Wray said, That although it was parcel of the Glebe, yet when it was Leased out Tithes ought to be paid without question: But there may be a doubt where the Rent is reserved to the true value of the Land; but here the Rent is of small value, wherefore Tithes shall be paid also. And the Reservation of the Rent was Pro omnibus exactionibus & demandis; yet the Justices took no regard of these words. But Godfrey said, that those words would discharge him: But Wray on the contrary, for that this Tithe is not issuing out of the Land, but is a thing collateral; and if a Parson do Release to his Parishioners all demands in the Land, yet Tithes are not thereby Released, for such general words will not extend to such a Special matter .

(27.) A. Parson of B. in consideration of 120 l. paid by C. one of his Parishioners, did accord and agree with him, That he and his Assigns should be discharged of Tithes during the time that he should be Parson. C. made a Lease to D. — A. did Libel against him for Tithes, and D. prayed a Prohibition upon the said Contract. And if this were sufficient matter for a Prohibition, was the question, because it was by word only, and without writing, which amounts only to a Cause of Action upon a Promise for C. but no Action for his Lessees: neither can this amount to a Release of Tithes; for as Tithes cannot be Leased without Deed, so they cannot be Released or discharged without Deed. Gawdy Justice, Tithes cannot be discharged without Deed, unless by way of Contract for a Sum of money, and he cited the 21 H. 6. 43. Fenner, for that year in which the Discharge was made, it was good by way of Discharge without Deed, because the Parson for that year had as it were an Interest, but such Discharge can have no continuance for another year, for default of a Deed: and so a Promise being no Discharge, it is no cause of a Prohibition. But Gawdy held as afore. And the Court ( Popham succeeding Wray Chief Justice, upon his death) held, that the Agreement being by parol, was not good: and Fenner then said, That without Writing the Agreement could not be good between the parties, but for one year. And the Court awarded a Consultation. But upon search made no Judgment was entered in the Roll .

(28.) Note, That in Layton 's Case it was said by the Court, That a Parson may sue pro modo Decimandi in the Ecclesiastical Court. As if a Parishioner will not put his Tithes into Cocks, when he ought by the Custom so to do. But then the Suit ought to be Special for not putting it in Cocks, and not generally for not setting forth the Tithe .

(29.) It was likewise agreed by the Court in Clark 's Case against Pro • se, that the Ecclesiastical Court may take cognizance of a Modus Decimandi: The Case was this; Clark a Parson sued Prowse, one of his Parishioners per mod. Decimandi in the Ecclesiastical Court, and alleged a Custom in his Bill ( so called in the Report ) to have two shillings of the pound for every House and Shop in the Town: and upon that Suit the Defendant there answered to the Custom, Quod non credit esse vera. And so to have here a Prohibition it was alleged, That the Defendant was a Butcher, that set open Stall in the Market only to fell Flesh there, and that he had not any other Shop or House. And it was agreed by the Court, That a Parson may sue per mod. Decimandi in the Ecclesiastical Court: But if it be denied, the Chief Justice as also Jones said, That in that case they could proceed no further; because they cannot try matters of Prescription there, and if they proceed, a Prohibition: But in this Case the Prohibition was denied, because Doddridge said, That for the Reasons supra, power is given to the Spiritual Court to examine that matter; because it is not a denial of the Prescription, but it ought to be by Allegation .

(30.) It was said in Catesby 's Case, That if a Copyholder of the Kings Manor pretendeth Prescription for a Modus Decimandi against the Parson, the Right of Tithes shall be tried in the Exchequer, and a Prohibition was granted to the Ecclesiastical Court in this Case .

(31.) In Pool 's Case against Reynold, Prescription to have Deer out of a Park in discharge of all Tithes, and after the Park is disparked: P. brought a Prohibition against R. the Surmise was, That de temps d'ont memory, &c. within the Parish of C. there was a Rectory appropriate, and the Chapel of S. annexed therewith. Et una Vicaria perpetua ejusdem Ecclesiae de C. dotat. And whereas the said P. • or six years last past had occupied one House, 100 acres of Land, 20 of Meadow, 40 of Pasture, called Shute-Park within the said Parish of C. which said Tenements were anciently a Park, and now disparked, &c. and converted into the said House, 100 acres, &c. And that all the Occupiers of the said Park de temps d'ont memory, until the Disparking had paid to the Vicar there, one Buck of the Summer-season, and one Do of the Winter-season, &c. in discharge of all Tithes of the said Park, until the Disparking; and after the disparking in discharge of all Tithes of the said Tenements, which they had accepted for all the time aforesaid, until the Disparking and after, or otherwise agreed with the Vicar for them: and traversed this Prescription, and found for the Plaintiff. In Arrest of Judgment it was moved by Henden, That this Prescription extends to the Land quatenus it is a Park, and that being destroyed, the Prescription is gone, &c. and if it be to be paid or delivered out of the Park, then it is determined. vid. Lutterel 's Case, Coke lib. 4. Also this Prescription is against the benefit of the Church, and shall not be enlarged; and the Wood which is sold out of the Park, shall not be discharged 14 Jac. Conyer 's Case in C. B. Prescription, That the Parson had two acres of Meadow given in discharge of all Tithes of Hay-ground, viz. of all the Meadow in the Parish, if any Arable Land be converted into Meadow, it extends not to discharge that. vid. Lutterel 's Case, Coke lib. 4. fo. 8 • . That an Alteration in prejudice to the Parson determines the Prescription. vid. Terringham 's Case, lib. 4. He which hath Common purchased part of the Land, all is extinct, for it is his own Act: but vide the principal Case in that of Lutterel adjudged, That building of new Mills in the same place, and converting of Fulling-Mills into Corn-Mills, alter not the Prescription: And he cited a Cause which was in this Court argued at Barr, and afterwards at Bench, between Cooper and Andrew's, Mich. 10 Jac. Rot. 1023. for the Park of Cowhurst. Vid. 32 E. 1. Fitz. Avowry 240. 5 E. 2. Fitz. Annuity 44. 20 E. 4. 14. 14 E. 4. 4. But this Case was adjudged for the Plaintiff, Quod stet Prohibitio: and that which is by the name of Park is for the Land, and is annexed to the Land by the name of Park; if the Prescription had been to pay a Buck or a Do out of the Park, then it would alter the Case: But it is general, and had been paid also after the Park disparked. And the Case of Cooper and Andrew's, was a shoulder of every third Deer that was killed in the Park, and two shillings in money, and that Case was never Adjudged .

(32.) V. brought Trespass against T. Clerk, Vicar of A. for taking Bona & Catalla, and count for the taking of two Carectac. glaci, Anglice Wood: And upon Not guilty pleaded, the Jury gave this Special Verdict, viz. for the Moity of a Load of Wood, Si videbitur Curiae quod Decimae glaci ne sunt Minutae Decimae, then the Defendant Not guilty; but Si sunt Minutae Decimae, then he is Guilty. This Case was argued at Barr by Bridgman and Henden Serjeants: And the Court Unement agreed, That for ought that here appears, this Verdict being found without any Circumstance, that this Wood shall be taken to be Minutae Decimae. It was agreed by Henden, That if it had been found Wood growing in a Garden, then Minutae Decimae. And it was agreed by the Court, That it might have been so found, that it should be Majores Decimae, and Praedial; as if all the profits of the Parsonage consist of such Tithes. And so of other things, which in their own nature are Minutae, may become Majores, if all the profit of the Parish consist therein: As in some Countries, a great part of the Land within the Parish is Hemp, or Lime, or H • ps; there they are Great Tithes, and so it may be of Wool and Lambs. Pasch. 3 Jac. B. R. in Beddingfield 's Case, Farmer to the Dean and Chapter of Norwich, who had the Parsonage Impropriate, and had used to have Tithes of Grain and Hay, and the Vicar had the Small Tithes: And a Field of 40 Acres was planted with Saffron: and it was Adjudged, That the Tithes thereof belong to the Vicar. There was a Case in this Court, as it was vouched by Henden, 3 Jac. between Potman a Knight and another: And the Question was for Hops in Kent, and Adjudged that they were great Tithes; but as for Hops in Orchards or Gardens, these were Resolved to belong to the Vicar • s small Tithes. There was a Case in this Court for Tithe of Weild, which is used for Dying, and that was in Kent, and it was sown with the Corn, and after the Corn is reaped, the next year without any other manurance, the said Land brings forth and produces Weild: And that was a Special Verdict, whether the Vicar shall have the Tithe of it, or the Parson; but one of the parties died before any Judgment. And if Tobacco be planted here, yet the Tithes thereof are Minutae Decimae: And all these new things, viz. Saffron, Hops, Weild, &c. if it doth not appear by material Circumstances to the contrary, shall be taken as Minutae Decimae: And so this Case was Adjudged for the Defendant .

(33.) In the Case of a Prohibition, in case of a Libel in the Ecclesiastical Court for the Tithes of Cattels; the Plaintiff alleged that those Cattle, of which Tithes were demanded, are for his Dairy, and for the Plough; and Winch being only present said, That the Parson shall not have Tithes of such Cattle; but if he breed up Cattle to sell it is otherwise. Secondly, the Plaintiff in the Prohibition alleged, That time beyond memory the Parishioners had paid a hal ••• • or the Tithe of a Calf, and a penny for a Cow; and that upon a day limited they use to bring this to the Church, and to pay this to the Vicar; and now the Vicar had Libelled in the Ecclesiastical Court against them, to compel them to bring it home to his house • : And Winch said, That this is no occasion of a Prohibition, for they agree in the M • dus, but vary in the place of payment, and this is not matter of substance, and for that reason no Prohibition will lie .

(34.) B. brought a Prohibition against C. and alleged, that the Dean and Chapter of D. was seized of the Manor, and the Defendant being Vic • r sued in the Ecclesiastical Court to have Tithes, and shown, that time beyond Memory, &c. they had held that Discharged of Tithes for them and their Tenants, and that they lett that to the Plaintiff. And it was moved by Henden Serjeant, That the Dean and Chapter are a Body Politick and Temporal, which are not capable of this Prescription in non Decimando, Coke 2. the Bishop of Winchester 's Case. Hobart said, That the Dean and Chapter are a Body Spiritual, and are annexed to the Bishop throughout all England; and if the Bishop is capable of that, as it is plain he is, then the Dean and Chapter is also capable of that, which was granted by Hutton: but Winch doubted, for he said, That he-may be a Layman, and for that the Plaintiff ought to aver, That he is a Spiritual person: Hutton confessed, That the Dean may be a Lay-man, as was the Dean of Durham by special License and Dispensation of the King; but that is rare, and a Special Case, and is not common, and general, and therefore not to be brought as an Example, which was also granted by Hobart Chief Justice, and upon that day was given over to the Defendant to show cause wherefore the Prohibition shall not be granted .

(35.) A. Libelled against W. in the Ecclesiastical Court for the Herb • ge-Tithe of young Cattle, s • il. for a penny for everyone. And Hitcham moved for a Prohibition: and said, that he ought not to have Tithes, if they are young Beasts brought up for the Cart or Plough. And so it hath been Adjudged: As it a Parson prescribe to have Tithes for Hedgingstuff, he cannot, because that preserves the Land out of which he had Tithes; and then a Parson Libels for Tithes of an Orchard, for that it was a young Orchard; and the Custom of the place was, to pay 4 d. for an Orchard. Hitcham said, There is not any such difference between old and new Orchards, for i • the Custom be that he shall pay 4 d. for every Orchard, it will reach to the new Orchard. And then he Libels for a Hearth-penny, for the Wood burnt in his house. Hutten said, The Hearth-penny is more doubtful; for it is a Custom in the North parts to give an Hearth-penny for Estovers burnt; for which he prescribes to be free of everything which comes to the Fire. And in some parts by the Custom they had Pasturage for the Tenth Beast, or the Tenth part of the Gains, which is Barren for the time. But he and Yelverton, who only were present, That no Tithes are due for them without Custom. Hitcham, They also will have Tithes for a thing before it comes to perfection, which would be Tithable afterwards: But I agree, if he fells them before they come to perfection, then the Parson shall have Tithes But by Hutton and Yelverton, there may be a Custom to have every year a penny for them. Sed adjournatur, &c. .

(36.) A. Libels in the Ecclesiastical Court for Tithes of Fis • , which is due merely by Custom; and the Defendant pleads, That time out of mind, &c. they have paid no Tithes of that. And Henden Serjeant moved for a Prohibition. And Richardson Replied and said, It is merely a Customary Tithe, as Rabbits, &c. whereof no Tithes are due by the Law of the Land, and a Prohibition shall not be granted. But all the other Justices affirmed, That there shall be a Prohibition granted, because that the Custom ought to be tried at the Common Law, and they make a difference between Modus De • imandi, which is also Customary, and where there is a Tithe precedent due, and that Modus converts it into another duty: There no Prohibition shall be granted; but it shall be Tried in the Ecclesiastical Court, whether there be such a Modus Decimandi or not; and that Case in the Custom makes the Duty itself. But if he alleged the Modus to be for two pence, and the Parson for three pence, it shall be tried by the Common Law. And they said, That so was the opinion in the grand Case of Lead-Ore. And Hutton said, That so it was determined in the Case of one Berry, for Tithes of Lime-kill • s, which are as Minerals, and are not Tithable by the Common Law. But when the Custom is tried, then they in the Ecclesiastical Court may proceed upon it .

(37.) A Parson Libells in the Ecclesiastical Court for Tithes of Pigeons and Acorns: And the Defendant prayed a Prohibition; because the Pigeons were spent in his own house, and the Acorns dropt from the Tree, and his Hoggs eat them. And it was said by the Court, Acorns are Tithable 11 Rep. 49. but then they ought to be gathered and also sold. And a Prohibition was clearly granted .

(38.) B. Farmer of a portion of Tithes for five years, without Deed, Demises a Farm which he had in the same Parish to F. for years; and afterwards he Libells against him in the Ecclesiastical Court for the Tithe of that Farm. And F. said, he was not Farmer. And Henden prays a Prohibition for that, (1) That the Lease for Tithes is without Deed: but he may be Discharged of his own Tithes without Deed, as was Adjudged before in this Court. (2.) The Lessee is not to pay Tithes for the Farm; for although the Parson makes a Lease of the Gl • be for years, he paid Tithes: But if a Lay-man who had the Impropriation Leases the Gl • be, the Lessee does not pay Tithes. But the Court denied the Case of the Lease of the Parsonage Impropriate; and said, That the Case of Perkins and Hind was Adjudged to the contrary in that very point. And also if he purchase other Lands in the Parish (which are discharged of Tithes in his hands) and he Demises them, yet the Lessee pays him Tithes. And the Opinion of the Court was, If one contract with the Parson for Discharge of the Tithes of his Lands for years, and Demises his Lands to another; yet he shall not have Tithes, but the Discharge runs with the Land. But if one take a Lease of his Tithes by Deed, and makes a Demise of his Land, he hath Tithes of the Lessee. And the Direction was, That the Lessee of the Farm ought to show expressly in the Ecclesiastical Court, that the Farmer had not a Lease by Deed: and a Prohibition was granted. And it shall be Admitted, That the words of the Libel being Firmator, Conductor, & Occupator was good .

(39.) W. against S. in a Prohibition, in which S. Libels for Tithes of Hay. And W. suggests for a Prohibition, That he used to pay the Tithe for Hay inspecie, in consideration whereof he used to be Discharged of all Doles, Green-skips, and Headlands, not exceeding the breadth that a Plough or a Team might turn about the Lands. And Henden moved for a Consultation; for that it is said, about, &c. that is, circa terras arabiles, when the truth is, there are Skips at the side of Lands, as broad as the Lands themselves; and then he would be discharged of them also, whereas it ought to be at the end of the Headlands only. Richardson said, That in arable Lands enclosed, Pasture is at the end and at the sides, which is mowed, and yet discharged of Tithes. But the Court in respect there was a Prohibition granted, said, That he ought to join Issue or Demurr upon the Declaration .

(40.) The Earl of D. had a Manor in the Parish of C. which extended to L. where there is a Chapel of Ease; and the Vicar of C. Libels for Tithes in the Ecclesiastical Court, against one of the Tenants of the Manor. And Henden moved for a Prohibition, for that that the Earl prescribed, That he and all his Tenants should be acquitted of all the Tithes of Land within L. paying 10 s. per ann. to the Chaplain of L. And he said, that such a Prescription is good, as it was Adjudged in Bowles Case. And a Prohibition was granted .

(41.) In Comin 's Case it was agreed by the Court, That a Forest in the hands of a Subject shall pay Tithes; and it was agreed, that in the hands of the King it is Priviledged. And by Henden, Davenport, and Atthowe Serjeants, It is only his personal Privilege, which extends to the Lessee of the King, but not to the Feossee. And it was agreed, That where the right of Tithes comes in question between a Parson and the Vicar, who are both Ecclesiastical persons, it shall be Tried by the Ecclesiastical Court. But Richardson said, the Books make a doubt, where it is between the Servant of the Vicar and the Parson. But it seemed to him to be all one .

(42.) N. and D. Plaintiffs against H. Vicar of S. in a Prohibition: the 〈◊〉 was for Wood employed in Hedging, and for Fire-wood: Issue was joined, That there was in the Parish a great quantity of Land enclosed; and that they used to take Wood for Hedge-boot and Fire-boot, and they were discharged of Tithes, in consideration that he paid Tithes in kind of Hay and Corn, &c. And it was found for the Defendant. Crawley moved, That a Consultation cannot be granted, for that that they ought to be acquitted of Tithes for those of Common Right, and for that although Prescription was alleged, it is nothing to the purpose. Atthowe, For Fire-wood it was proved that Tithes always was paid. Richardson, there is no doubt but the discharge also ought to be by Custom, and to be grounded upon Modus Decimandi. Yelverton and Crook otherwise, that it is not upon Modus Decimandi, but by the Common Law; and the Reason is, for that that when a man is Owner of Arable Land, and he pay Tithe-Milk and Corn, and for that they are discharged of things consumed in the House, which are to make Masters and Servants fit to manure the Land, &c. Richardson said, It is seen that it shall always be Discharged, in consideration it is alleged, how a small Consideration will serve. Crook, It is not Modus Decimandi, but the Discharge is for that, that the Parson hath by them a benefit, for he had by them better means of Tithes. Hutton, If a man had a House of Husbandry, and Demises all the Land but the House, he shall pay Tithes for them absumpt in the House. Crook, Not. No profit is made by them to the party; but the Parson had a benefit by him. And a day was given to search Presidents .

(43.) A Parson Libels for the Tithes of young Cattle preserved for the Cart, and the Question was, whether in such Cases a Custom ought to be surmized. . And Crook, F. N. B. is, That of right Tithes shall not be paid for such things. Richardson, In all such Cases the Parson ought not to have Tithes, if there be not a Custom alleged, by which the Parson had anything, or Recompence, or by which his other Tithe is better. And he said, That he had searched the Books, and the Book of Entries; and there is not any such Case, but some Surmize is made, as for that, that he had Tithe of Corn in specie where the Land is enclosed; and so the Corn better. Hutton, It ought to be Tried, whether the thing in his nature be Ti • hable, or any Usage to discharge it or not, as the Cattle are in their nature Tithable, then you cannot prohibit it; but the Usage ought to be surmized so: And it may be Law, as the Parson had better Tithes. Harvey, If a Libel be for Tithes of Hedging and Fencing, there a Surmize ought to be made to discharge that. But when it is for Tithes of Heifers, which in apparency ought to be spared by the Law of the Land, otherwise it is, &c. Richardson, for the Herbage of those Heifers Tithe is due by the Ecclesiastical Law; and we never can take Tithe of them without express Custom or other Recompence. Harvey, there was a Case, 16 Jac. C. B. A Pa • son sues for the Herbage of Horses, and the Parishioner alleged, That he kept them for the carrying of Coals; there he ought to surmise something to be Discharged: and if he allege, That he kept them in his House for serving of Husbandry, the other may allege, That he kept them to carry Coals, and the Allegation is Traversable. Richardson, There was a Case, where the Question was, A Husbandman keeps a Horse to ride up and down about his business, Whether he shall pay Tithe for the Herbage of him, and a Prohibition was in that Case granted; but a Surmize ought to be made. Crook said, That in the Kings Bench he had twenty times seen a Prohibition granted in such Cases, without any Surmize. And a Libel is for dry Cattle; if it be alleged, That they are kept for the Plough, the other may allege, That he keeps them to sell, without that, that he keeps them for the Plough. And before there is any profit of them, it is not reason that they should be Tithable, and the Parson shall have the benefit for them after. And for Hedging it is Lex terrae, that he shall pay no Tithes. Richardson, It is Lex terrae ne consuetudo loci facit legem terrae. And if he had used to pay Tithes for the Cattle or for Hedging, he ought not to pay that still: If an ignorant man will pay Tithes for those things, and after upon a Libel a Prohibition is granted; if the other does not allege a Custom, the Prohibition shall stand: or if they allege a Custom, which is • ound against him, no Consultation shall be granted. And for a Garden-penny, the reason of that is apparent: for otherwise Tithes shall be paid in specie: And so for Hearthpeny, if he had always paid it, it ought to be paid. Hutton, If a man had an Ancient Garden for which he paid a penny, and that is enlarged, of that enlargement Tithes ought to be paid in specie .

(44.) A. Libels against B. in the Ecclesiastical Court for the Tithes of two Pecks of Apples, and for Feeding the Cattle upon the ground. The Defendant for the Apples answered, That there were Two pecks only growing in his Orchard, and that they were stolen, and never came to his use; and for the Cattle, That they were Ancient Milch-Beasts, and that they growing old were dry: And that for a month they depastured with other Heifers, and that after they put them in a Meadow, out of which the Hay was carried; and afterwards he fed them with Hay in his House. Atthowe, Because that the Answer was not admitted, prayed a Prohibition. Hutton, If Apples are upon the Trees, and taken by a Stranger, shall the Parson be hindered of his Tithe? Yelverton, If I suffer one to pull my Apples the Parson shall have Tithes; but if they be taken by persons not known, the Parson shall not have Tithes of them; which was granted: For they are not Tithable before plucking; and for that, if he suffer them to hang so long by negligence, after the time, that they are imbelized, by Yelverton he shall pay Tithes. For the second matter it was Agreed by the Court, and for the depasturing in the Meadow, and for the Hay with which they were fed afterwards, Tithe shall not be paid, because that the Parson had Tithes of them before. But if the question be for the Tithes when they went with the other Heifers, by Crook, that is no cause to excuse the Tithe. Harvey, If I have Ten Milch-kine, which I purpose to reserve for Calves, and they are dry, the Parson shall not have Tithe for their Pasture; but if I sell them, by which it appears I kept them for Fatting, there Tithes shall be paid. And Hutton agreed, That although there was so small a time, that they went with the Heifers, yet Tithes shall be paid for their pasture during that time .

(45.) In Walsingham and Stone 's Case it was said by Hutton, That a Parishioner compounding for his Tithes for his life was not good without Deed. And it was said by Yelverton, that the use in the Kings Bench is, That if a Defendant in a Prohibition dies, his Executors may proceed in the Ecclesiastical Court; and it may be a Rule for the Judges in that Court to proceed also. And then the Plaintiff may, if he will, have a new Prohibition against the Executors, &c.

(46.) In Norton 's Case Fin • h Recorder said, de Communi jure for Estovers burnt in an House Tithes ought not to be paid; by the Common Law there was not any Tithes paid for Wood: And although the Statute of 25 E. 3. gives a Prohibition for Timber, yet Under-woods were discharged of Tithes. Vid. Dr & Stud. 171. It is express that Estovers are not Tithable, because they are not renewing every year, and it is parcel of the Inheritance, for to destroy all the Underwoods is Waste, &c. Dawley 's Case was Resolved for the Wild of Sussex: and Mich. 13 Jac. B. R. in the Case of Porter and Dyke for the Wild of Kent of the same Prescription, Resolved to be good; and so is the Common Experience, that a whole County may Prescribe so. And the reason is, for that by the Common Law it was not due; but by the Constitution of Winchelsey, Lindwood 104. it was Ordained to be paid; for then the Prelates imputed a great Pestilence that then was, for the negligence of paying Tithes, and appointed Tithes of Wood. And the Commons were desirous to have the Statute of Sylva, &c. otherwise explained than the Clergy declares it; for they say, that they ought not to pay Tithes of any Wood that is of the growth of ten years. Hutton, Wood is Tithable in their nature, and then there may be a Custom to discharge them. And the Case of Hearthpeny cannot be answered; for if he Sues for the penny, a Prohibition shall not be granted, quod concessum fuit per Crook & Yelverton. But of things not Tithable, Tithes of them cannot be sued without alleging a Custom. Crook, It is known that Hearthpeny is good by Prescription: This Case is when there is not Land belonging to the House, so that the Parson is not answered for his Tithes another way. But when there are Ten Servants kept for the maintaining it, then by the Law of the Land it appears that Tithes ought not to be paid; although Custom had been alleged it is nothing to the purpose, As if a Custom be alleged to pay 4 d. for every Acre in discharge of Tithes, and the Verdict find 3 d. no Consultation shall be granted. Hutton, the Herbage of Barren Cattle is Tithable, because there is a Custom which discharges those that are for the Cart. And he said, That the Custom only makes that Legem terrae. And he cited Dr. Grauut 's Case: He Libels for Tithes of a House, and the party brought a Prohibition, and alleged Modum Decimandi, &c. And it was alleged in Arrest of Judgment, that Houses were not Tithable de Communi jure, and yet a Consultation was granted, &c. .

(47.) A Case between Stone and Walsingham having been formerly in the Court touching Tithes, the Case was again moved in Court, which was that they agreed de anno in annum so long as the one should be Parson, and the other Parishioner, Si ambabus partibus tam diu placuerit, he should retain his Tithes for 6 s. 8 d. per An. And Richardson Justice said, and it was not denied, That the Suggestion is naught for the uncertainty of it; and a Prohibition cannot be granted upon that. For the words de ann • in annum make an Estate for a year;▪ and the next words make an Estate for Life; and the last words, but an Estate at Will: and what shall be Traversed here? It appears, that for Years it is good without Deed, but not for life; and if it be but at Will, when the other demands his Tithes, the Will is determined. But at another day the Suggestion was made, That he made several Agreements with his Parishioner, that he pay 6 s. 8 d. for his Tithes for four years. And then a Prohibition was granted. Harvey, sufficit, If an Agreement be proved for these four years .

(48.) S •• t moved for a Prohibition, That whereas he had twenty Acres of Wheat, and had set out the Tenth part for Tithe, the Defendant pretending that there was a Custom of Tithing, that the Owner should have fifty four Sheaves, and the Parson five, and so he sued for Tithes, for that there was no such Custom: And the Court said, That the Modus decimandi must be sued for as well in the Ecclesiastical Court as for the Tithe itself: And if it be allowed between the parties, they shall proceed there; but if the Custom be denied, it must be tried at the Common Law: For if it be found for a Custom, Consultation must be granted; if not, then the Prohibition is to stand .

(49.) Napper against Steward; the Parson had a Prohibition against divers of his Parishioners that Libelled in the Ecclesiastical Court, to make Proof by Witness of divers manner of Tithing in perpetuam rei memoriam .

(50.) A Prohibition for H. against E. Farmer of the Rectory of S. and prescribed, That all Tenants and Occupiers of Meadow had used to cut the Grass, and to straw it abroad called Tetting, and then gathered into Wind-rows, and then put it into Grass-Co • ks in equal parts without any fraud, to set out the Tenth-Cock great and small to the Parson, in full satisfaction as well of the first as of the latter Math: Upon Traverse of the Custom it was • ound for the Plaintiff; and exception was taken, That the Custom was void, because it imports no more than what every Owner ought to do, and so no recompense for the two Maths: But the Court gave Judgment • or the Plaintiff; for Dismes naturally are but the Tenth of the Revenue of any Ground, and not of any labor or Industry: Where it may be divided as in Gross, it may, though not in Corn; and in divers places they s • t out the Tenth acre of Wood standing, and so of Grass: And the Jury having found his Form of Tithing there, it is sufficient: and the like Judgment upon the like Custom was in the Kings Bench. Pasch. 2 Jac. Rot. 191, or 192. inter Hall & Symonds .

(51.) In Johnson 's Case, if a Prohibition be granted upon matter at Common Law, as upon a Personal Agreement between Parson and Parishioner for his Tithes, and not upon matter within the Stat. of 2 E. 6. 13. the Suggestion shall not be Proved within the Six months as the Statute limits; and as it is Agreed by the whole Court .

(52.) The Defendant here in the Prohibition Libels for Tithes of Hay in the Ecclesiastical Court. The Plaintiff suggests, that the Hay was growing upon Greenskips, Deals, and Headlands, and that there is a Custom, that the Parishioners in a Meadow there used to make the Tithe-Hay for the Parson, and in consideration of that to be discharged of all Tithes of Hay growing ut supra; and also that for the Hay of the Land, no Tithe ought to be paid of such Hay, but does not aver, that that Hay was growing upon Greenskips, &c. And an Exception was taken by Henden: (1.) That the Exception is double; the Custom, and the Common Law: And by Yelverton, That is not material; for you may have twenty Suggestions to maintain the Suggestion of the Court: but Richardson was against that, that a Suggestion might be double here, for the Suggestion of the Common Law is a Surplusage: As in Farmer and Norwich 's Case here lately, One Prescribes to be discharged of Tithes, where the Law discharged him, and so was discharged by the Common Law. Second Exception is, That he doth not apply the Custom to himself in the Suggestion; for he that lays the Custom, does not show that the Hay grew upon the Skips, upon which a Plough might turn itself: and for this cause by the whole Court the Suggestion is naught. And here Richardson moved, how that Two should join in a Prohibition. Yelverton, If they are joined in the Libel, they may join in the Prohibition, and that is the common practice of the Kings Bench. Richardson, The wrong to one in the Ecclesiastical Court by the Suit, cannot be a wrong to the other. Hutton, They may join in the Writ, but they ought to sever in the Declaration, to which Harvey agreed. Yelverton, The Prohibition is the Suit of the King, and he joins taunt. as in a Writ. Richardson, But it is as the Suit of the party is, and if any join here, I think good cause of a Consultation. It is against the profit of the Court to suffer many to join. And it is usual in the Case of Customs of a Parish in debate to order Proceedings in the two Prohibitions, and that to bind all the Parish and Parson. And it was said by them all, That the Consideration of making Hay is a good Discharge, because it is more than they are bound to do .

(53.) F. sued V. for Tithes of Hay, which was upon Land that was Heath-ground, and for Tithes of Pigeons. And by Richardson, If it was mere Waste-ground, and yield nothing, it is excused by the Statute of payment of Tithes for seven years: But if Sheep were kept upon it, or if it yield any Profit, which yield Tithes, then Tithe ought to be paid: As the Case in Dyer. And for the Pigeons, which were consumed in the House of the Owner, he said, and for Fish in a Pond, Conies, Deer, it is clear that no Tithes of them ought to be paid of Right; wherefore then of Pigeons? quod nemo dedixit. And a day was given to show cause wherefore a Prohibition should not be granted. And the Court agreed, That it was Felony to take Pigeons out of a Dove-house. And afterwards a Prohibition was granted, but principally, That the Pigeons were spent by the Owner. But by Henden, They shall be Tithable, if they be sold .

(54.) P. the Vicar of Eaton in the County of Oxford, Sues C. the Parson Impropriate in the Ecclesiastical Court in Oxford pro Minutis Decimis. C. sues a Prohibition against the Vicar upon a Surmize of a Prescription. P. comes and pleads the first Endowment made An. Dom. 1310. by which the Minute Tithes were allotted to the Vicar: C. demurrs; and Adjudged for the Plaintiff, for the Parson cannot Prescribe against the first Endowment .

(55.) In Debt upon the Stat. of 2 E. 6. for not setting out of Tithes, the Plaintiff declares, That the Defendant was seized of the Lands in question within that Parish, and that the Tithes did belong to the Parson and Vicar ( viz. ) Two parts to the Parson, and the Third part to the Vicar, or their Farmers, payable in specie for 40 years last past, that the Plaintiff was Farmer proprietary of the Tithes to the Parson and Vicar spectant, and shows the value of the Tithes due, and demands the treble value; the ••• ndant pleads Ni • il debet per patr. and it was found for the 〈◊〉 . It was now moved in Arrest of Judgment, because the Plaintiff ought to have brought two Actions, as the Parson and the Vicar ought for their several parts: But Resolved, that the Action is well brought; for it is a Personal and one entire Debt for one wrong .

(56.) Bott sues a Prohibition against Sir Edward B. and suggests That the Defendant is Parson Impropriate of W. and that time out of mind there hath been a Curate of an Incumbent by the appointment of the said Rector, who administered the Sacraments, &c. And that the Custom of that Parish time out of, &c. was, that the Curate should have 〈◊〉 Tenths renewing within that Parish, except Decimas gra •••• m, which were paid to the Parson, and that every Parishioner who had so paid the Tenths to the Curate, was discharged against the Parson. And that notwithstanding that, &c. Sir Edward B. had sued him &c. And now he prays a Prohibition, and had it; but after that Surmize was adjudged insufficient, without Argument by the Court, and a Consultation granted, for such Curate cannot Prescribe against his Master, that may remove him at his pleasure: And for that reason it was not a good Prescription for the Parishioners .

(57.) Goodwin being Vicar sues in the Ecclesiastical Court the Dean and Chapter of Wells, b • ing Parson of a Church, for a Pension, and they pray a Prohibition • and it was denied: For that Pension is a Spiritual thing, for which the Vicar may Sue in the Spiritual Court. Note, that they entitle themselves to that Parsonage by a Grant of H. 8. who had it by 31 H. 8. of Dissolutions .

(58.) It was said by Hutton in Spencer 's Case, That by the Civil Law the Parishioner ought to give notice to the Parson when the Tithes are set forth. But it was adjudged, That the Common Law doth not so oblige a man .

(59.) B. by his Deed Compounds for Tithes, and after Sues for them in the Ecclesiastical Court, by Popham and Gawdy, That an Action upon the Case lies. Vid. E. 4. 13 Mich. 4 Jac. The Lady Waterhouse was sued for the Tithes of Trees, whereof none were due, &c. there an Action upon the Case does not lie; for the Parson or person may well be ignorant of what things are due, otherwise he Sues against his own knowledge .

(60.) To have a Prohibition the Surmize was, That the Inhabitants of D. of which he is an Inhabitant, have paid un. mod. decimand. &c. And they were at Issue; and he proved only, that he himself had paid it, and yet well: And no Consultation; for every particular is included in the general, and proved by it. And it appears sufficient matter for a Prohibition, and to oust a Spiritual Court of their Cognizance. (2) Agreed, that where the Statute appoints Proof of the Surmize to be by Two, it is sufficient if Two affirm that they have known it to be so, or that the Common Fame is so .

(61.) Upon a Surmize by a Parishioner, That he had Compounded with the Parson for his Tithes for one year, and it may be without Deed; by Brownlowe, That a Prohibition shall be awarded, and that there are divers Presidents in this Court. But otherwise, if it be for more years, it is not good without Deed . And in Skinner 's Case, it was Ruled by the Court upon a Surmize to have a Prohibition, That if it be proved before one of the Judges within the Six months, although that it be not Recorded till after the Six months, yet it is well enough; and good also, although that the Proof be in the Vacation. [ Pasch. 43 Eliz. B. R. Pottenger against Johnson .

(62.) A Parson prefers his Bill for Tithes of Hasle, Holly, Willow, Whitethorn, &c. a Prohibition was moved, because they were of 21 years growth and more: And by the common Custom in Hampshire, they were used for Timber to build and repair their Ploughs, and cited Pasch. 14 Jac. C. B. Rot. 1918. Cufflye 's Case against the Parson for Holly, Willows, and Maple; and a Prohibition was awarded. And Hubbard said, That in Cumberland Beech was used for Timber, and the use of the Country for scarcity of other Trees will alter the Case .

The Parson Libels for Tithes of Hay, &c. The Parson said, that the Custom of the Parish hath been, That he that hath Corn within the Parish ought to reap the Corn, and also the Tithes of the Parson, and to make them into Cocks, and to preserve them until the Parson shall carry them away. And a Prohibition was granted; for although that the Parishioners ought de jure to reap the Corn, as it was agreed Trin. 28 Eliz. B. R. yet he is not bound to guard the Tithes of the Parson, &c. But if the Parson does not carry them away in convenient time, an Action on the Case lies against him. Pasch. 20 Jac. B. R. Rot. 286. there such an Action was brought by Wiseman against the Rector of Landen in Essex, for not accepting, &c. of the Tithes of Cheese .

(63.) B. brought an Action upon the Case, That P. sued for Tithes, and recovered, because there was nisi Testis singularis to prove the payment, when in truth he had paid it before Two, but now one was dead; and by the Court Resolved, That an Action doth not lie, because the Cause was merely Spiritual: And for that it differs from 8 E. 4. 13. for there the Composition was a Temporal Contract, although it was for Tithes .

(64.) G. moves for a Prohibition, and Surmizes that the Parishioners had Compounded with the Parson for the Tithes; but yet the due Tithes were severed and exposed, and the Parson takes and carries them away; the Parishioner meets him and takes them from him. And upon that the Parson sues in the Ecclesiastical Court: And a Prohibition was awarded .

(65.) W. Sues P. in the Ecclesiastical Court for not setting out the Tithes of two Acres; P. prays a Prohibition, because he had set out the Tithes of one Acre in specie, and that a party unknown had taken them; and for the other he suggests a Modus Decimandi for 2 s. 6 d. And upon that Issue is joined; and the Witnesses said, That for a long time, as they heard say, the Occupiers of that Farm, whereof that Acre, &c. had used to pay annually to the Parson three shillings for all Tithes; and agreed by the Court, (1) As to the first, Quod Prohibitio stet, for after the Tithes are severed, if a Stranger takes them away, the Parson hath his Remedy against him at Common Law, and shall not sue the Parishioner in the Spiritual Court. (2) It was agreed, That a Proof ( by hearsay ) was good enough to maintain the Surmize within the Statute of 2 Ed. 6. But as to the other Acre, Popham held, That the Modus Decimandi is not well proved; but Fenner and Yelverton the contrary: For by that appears, the Parson is not to have Tithes