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houses in general are discharged from tithes; but only such lands are capable of discharge, as belonged to the houses which were dissolved by the statute of the 31 H. 8. And not all those lands which belonged to the religious houses dissolved by that statute are discharged from tithes; but only such of them as were discharged at the time of their dissolution. But what shall be sufficient evidence of such discharge, and of the manner of such discharge, that is, whether by order, bull, composition, or unity of possession, at this distance of time, seemeth difficult to determine with precision; as strictness of proof may be more or less requisite, according to the particular circumstances of the case.

Tate v. Shelton. This was a bill by the rector of Coningsby in the county of Lincoln for the great and small tithes of the parish. It was proved that the lands, whereof the tithes were demanded, belonged to the abbey of Kirksted, which was a Cistertian abbey: it was also proved, that the monastery with its possessions had come to the hands of the king in 28 H. 8., by the attainder of Richard Harrison the abbot, and that these lands were granted in 30 H. 8. by the crown to the duke of Suffolk in fee. It was contended, on the part of the plaintiff, that as the lands were not in the possession of the crown, when the statute of 31 H.8. c. 13. was passed, they were not within the protection of the 21st section of that statute. But the court were of opinion that the statute of 31 H. 8. was sufficiently broad to comprehend all monasteries which were dissolved after the 4th of February, 27 H. 8.; and that the lands of any such monasteries were exempt from the payment of tithes under that statute, though the crown may have granted them away before the statute was passed. 4 Gwill. 1503.

In the case of the Archbishop of York and Dr. Hayter against Sir Miles Stapleton and others, Feb. 21. 1740; it was said by lord Hardwicke, that the evidence of exemption depends upon usage; and a posterior usage is evidence of the preceding, for no other can be had. 2 At kyns, 137. (g)

(g) In Lamprey v. Rooke, 11 Dec. 1755. Amb. 291. Lord Hardwicke declared his opinion, that if lands appear to have been part of the possession of any of the great monasteries (which were dissolved by stat. 31 H.8.), and there is no evidence of the payment of tithes for those lands at any time, courts will consider them as discharged, by some way or other, before the dissolution in the hands of the abbot, &c.; and that it is sufficient to allege, that they were part of the. possessions, &c. and were, at the time of the dissolution, by prescription, composition, or by other lawful ways and means, discharged from payment of tithes. See also 2 Rep. 48. b. and [Nash v. Molins,] Cro. Eliz. 206. In Pratt v. Hopkins, 3 Bro. P. C. 521. the house of lords affirmed the decree of the court of exchequer, that lands ex

Common

ant.

The king 9 M. 14 C. 2. Compost's case. It was held, that the king is for ancient not by virtue of his prerogative discharged of tithes for ancient demesne Cand other demesnes of the crown, but that as persona mixta he is capable lands: see of a discharge de non decimando by prescription, as well as a ante, 425.] bishop. (4) But if the king alien any of the lands for which he [ 427 ] is so discharged of tithes, his feoffee or patentee shall pay tithes (5);

and not only so, but the prescription is destroyed for ever, although the same lands should afterwards come into the king's hands again, by escheat, or otherwise. Hard. 315. (6)

10. In Lambert v. Cumming, M. 1723; On a bill for tithes in appurten

the parish of Warton in the county of Lancaster, it was decreed, that an exemption of an estate from tithes shall extend to a common appurtenant to such an estate. Bunb. 138.

July 15. 1748, Stockwell v. Terry. A bill was brought by the rector for payment of tithes in kind of 300 acres of land. Two bars were set up; the first, general, to all the acres, the statute of 2 Ed. 6. by which waste ground, improved into arable or meadow, shall not pay tithes, till seven years after the improvement is completed; as to which, the case appeared that the land in question was a common field for sheep, horses, and cows, but not fit for fattening them, being overrun with brushwood, briars, and other weeds; the parson was entitled to tithes of calves, milk, wool, and the like, out of it; and it was proved to be worth 2s. an acre before it was improved: and as to this, the court was of opinion, that it is not such land as ought to be exempted by the statute in the name of barren land. The other bar set up was particular to 48 acres, parcel thereof; as to which, an agreement had been entered into between the defendant and the par

empted from tithes, as being part of the demesnes of an ancient monastery, being inclosed by act of parliament, shall not be made liable to tithes by general words in the act, saving the right of the rector, impropriator, &c.

(4) Hertford v. Leech, Sir W. Jon. R. 387. Compost's case, Hardr. 315. supra.

(5) Comin's case, Hetl. R. 60. Hotham v. Foster, Gwm. 869. Hert- . ford v. Leech, Sir W.Jo. R. 387. Bannister v. Wright, Styl. R. 137.

(6) See cases in last note, and Morant v. Cumming, Cro. Car. 94.; but see Wickham v. Cooper, Cro. El. 216. But the king's patentees of the lands of the larger abbeys, &c. which came to the crown by stat. 31 H. 8. may take advantage of a prescription de non decimando in the abbot, &c. by force of that statute ; and the enjoyment of the lands since the dissolution free from tithes during memory is good proof, à posteriori, that the abbot, &c. held them discharged. Degge, c. 16. 306. Com. Dig. tit. Dismes (E 7.) And such abbey lands in the hands of the grantees of the crown are discharged, though at the time the abbey was dissolved they were in lease for years, and the lessee paid tithes. Porter v. Bathurst, Cro. J.559. Cowley v. Keys, Gwm. 1308. But the prescription must be proved by the lessee or grantee of the crown.

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son, and those who had right to feed in the common, for the
making an inclosure: and an act of parliament was passed for
that purpose, by which they enjoy all their rights in severalty,
as they did their rights of common before. These 48 acres were
allotted to the defendant, in lieu of his common; and the ques-
tion was, Whether this was still covered by a modus, which had
been paid for it before ? -- For the plaintiff it was argued, that
these 48 acres are of another nature, and not to be covered by
it. If there is a modus for any thing, and a new part is joined
to it, that addition must be paid for; as if a modus for two mills,
and a third is added, the modus will not cover it; so if for a
garden, and an addition is made to it; if a buck, and a doe are
paid for a park, and it be disparked, tithes must be paid for it. -
For the defendant it was argued, that the general view of the
agreement and of the act of parliament was, that none should be
prejudiced; and that it should be exactly in the same situation
as before, except that it should not be in common. But the
construction contended for, will give the parson, whose former
right was preserved, what he had not before. --By the lord
chancellor Hardwicke; I am of opinion that the 48 acres are
covered by the modus. I admit the case mentioned, and that by
disparking the modus is gone; and if the owner disparks part,
he shall pay the same modus, and also tithes in kind, for what is
disparked, because it was paid in nature of a franchise, and not
for lands. But suppose the owner, with consent of the parson,
disparks some to be enjoyed as before; I should think, it was
the incumbent's intent, that it should be still enjoyed as part of
the park, and no tithes in kind should be paid for it, for other-
wise the agreement with the parson would be useless. So if this
agreement had been between the lord of a manor and the other
commoners without the parson, and they had turned it into
several ownerships, it would be liable to the right to tithes,
which the rector had over the whole parish. But here has been
an agreement by act of parliament, to which the parson was
party; and although the recital uses only general words, yet it
shews plainly the intention of the parties to be, that every person
should enjoy his allotment in the same manner as he did the
thing in lieu; and that was subject to the modus. Let the bill
therefore be dismissed as to the 48 acres; and as to the rest, an
account be taken of the several tithes to be paid. I Vesey, 115.
:: E. 3 G. 3, Moncaster v. Watson. This was a case reserved
from the northern circuit, in an action by a lay impropriator,
against the occupiers of lands in the parish of Felton in the
county of Northumberland, for taking away their corn and hay,
without setting out the tithe, or agreeing for it. The substance
of the stated case was, that they claimed to be exempt from pay-
ing any tithe at all for these lands, upon the following foundation,

e parks soment suppose paid in natso tithes iner dispark that by

viz. that a private act of parliament was passed in the 26 G. 2. for dividing and inclosing the common called Felton common: That the lands in question had been, till the said year (when the said common was so divided and inclosed) part of the said common, whereupon the commoners had used to have common for their cattle levant and couchant : That 90 acres, part of the said common, were by the said act of parliament allotted to the owner

of Swardland demesne; under which said allotment, the defend[ 429 7 ants occupy the said 90 acres, formerly parcel of the common,

but now made parcel of Swardland demesne: That the act directs that the divided lands (before parcel of the common) shall be holden by each person to whom the respective divisions are allotted, subject to the same charges and incumbrances, as their own former lands, to which they are allotted and consolidated, were before subject; and it is declared in the act itself, that it shall be considered beneficially to the said land-owners to whom the respective divisions are allotted: That the owners of Swardland demesne had never paid tithe of corn, grain, or hay; having been always exempt from the payment of tithe of corn and grain, in consideration of having always kept in repair the north end of Felton church; and being exempt from the payment of tithe of hay, under a modus. The question was, whether the occupiers of these 90 acres, late parcel of the common, but now allotted to the owner of Swardland demesne, are or are not liable to the payment of tithe of corn or hay. — Mr. Wallace, who argued for the defendants, contended, that as the allotment was to bear all the burdens of the ancient estate to which it was now annexed, it ought therefore to enjoy all the privileges of it: And as this ancient estate was exempt from tithes, so also ought the allotted 90 acres to be. And he relied on the case of Stockwell and Terry, which he said was as follows : Stockwell, rector of the parish, filed his bill against the occupier of some land (then ploughed up) for tithe of the corn which grew upon it. The defendant insisted upon a modus of 15s. in lieu of all tithes arising upon the Grange farm; and that the Grange farm had never paid any tithes. Then he shewed, that the land for which Stockwell demanded this tithe of corn by his bill, had been part of a down which had been inclosed by a private act of parliament, and had been thereby allotted to and had ever since continued part of the Grange farm; and therefore ought to be exempt from all tithes, as well as the Grange farm itself. And lord Hardwicke dismissed the rector's bill, so far as it related to this land which had been down-land, and was so allotted to the Grange farm. — Mr. Thurlow, for the plaintiff, argued, that notwithstanding this decree in Stockwell and Terry, yet in the present case (which differs much from that) the allotted common is not exempted from the payment of tithes. This demand of the im

and had beenich had been inhe of corn by hiat the land form

propriator is a claim of the tithe of corn, grain, and hay. But corn, grain, and hay, could not be part of what grew on a com- [ 430 ] mon. The tithes that arose upon this common (appendant to Swardland demesne) could have been only tithes of agistment, or of lambs, calves, wool, milk, and other things that could be the produce of a common. Now, a modus or other compensation must be in lieu of these specific tithes. This exemption therefore cannot relate to any other tithes, but such as could in their nature have arisen out of the common, whilst it continued common. — By lord Mansfield chief justice: The case of Stockwell and Terry differed very much from the present case. The modus insisted upon in that case extended to all kinds of tithes; whereas the exemption insisted on in the present case is confined to the specific land called Swardland demesne, and doth not extend to the right of common. Here is no equivalent at all for the tithes of agistment, of wool, milk, lambs, or any other tithes of such a kind as could arise upon a common. The equivalent goes only to corn, grain, and hay; the tithe whereof could not arise upon the common, whilst it remained a common. In Stockwell and Terry, the rector was, as owner of the glebe, a party to the act of parliament: Here, the impropriator is not a party to this act of parliament. (7) And there the modus covered the right of common; it was a modus of 15s. which was paid for the Grange farm, in lieu of all tithes arising upon it, and of all the tithes of all the cows and sheep belonging to that farm that should be depastured on the said Down, which was afterwards inclosed and allotted to it. So that the modus covered not only the Grange farm itself with its appurtenances, but the common also : which is not the present case. In that case, lord Hardwicke decreed, that the modus should stand for the allotted lands, as well as for the Grange farm and its appurtenances; and accordingly, he dismissed the bill as to those lands, which the modus covered: But as to all the other lands of the common, which had before used to pay tithe of wood, agistment, and other small tithes, he decreed an account. Here, all rights are saved, generally, by this act of 26 G. 2. Consequently, the impropriator's right to tithes remains: And there is no need to show how they are due; because they are due of common right. The whole court were very clear, that in the present case the exemption and modus did not extend to the waste and common; and there- 431 7 fore that the allotted lands, which had been part of that waste and common, having been subject to tithes before the allotment, must remain liable to them after it: which they held to differ materially from the cited case, where the modus did extend to

(7) And a claim of tithe can only be discharged by special words. Parkins v. Hinde, Cro. El. 161.

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