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ward, there to remain without bail or mainprize until he shall have found sufficient surety, to be bound by recognizance or otherwise before the king's said counsellor or justice of the peace, or any other like counsellor or justice of the peace, to the use of our said lord the king, to give due obedience to the process, proceedings, decrees, and sentences of the ecclesiastical court of this realm wherein such suit or matter for the premises shall depend or be; and that every of the king's said counsellors, or two justices of the peace, whereof the one to be of the quorum, as is aforesaid, shall have power to take and record such recognizances and obligations. $ !.
Provided, that this shall not extend to any inhabitant of the city of London, concerning any tithe, offering, or other ecclesiastical duty, grown and due to be paid within the said city; because there is another order made for the payment of tithes and other duties within the said city. 82.
Provided also, that all persor.s being parties to any such suit, may have their lawful action, demand, or prosecution, appeals, prohibitions, and all other their lawful defences and remedies in every such suit, according to the said ecclesiastical laws, and laws and statutes of this realm, in as ample manner as they might have had if this act had not been made. $ 3.
Shall have power to attach] In the case of King v. Sanchel, H. 9 W., when several quakers had been committed upon this statute, it was alleged, that the jurisdiction of the spiritual court was taken away by the act of parliament which gives the parson a remedy to recover such tithes by distress, by warrant of a justice of the peace: But by the court, The said act seems only to be an accumulative remedy, and not to repeal the former act of the 27 H.8. L. Raym. 323. (c)
By the 32 H. 8. c. 7. (which was also made upon occasion of the dissolution of monasteries, and which was chiefly intended to enable laymen, that by the dissolution had estates or interests in parsonages, or vicarages impropriate, or otherwise in tithes, to sue for subtraction of tithes in the ecclesiastical court,) it is enacted as followeth: Where divers persons inhabiting in sundry counties and places of this realm, not regarding their duties to Almighty God and to the king our sovereign lord, but in few years past more contemptuously and commonly presuming to offend and infringe the good and wholesome laws of this realm and gracious commandments of our sovereign lord, than in times past
(c) See also Rex v. Owen, 4 Burr. 2095. [In which case the method of proceeding for subtraction of tithes is discussed both at bar and bench. A commitment under 27 Hen. 8. c. 20. for a contempt in a suit in the spiritual court for ecclesiastical dues, must specify the kind of dues for which the party was sued. The King v. Sanchel, 1 Ld. Raym. 323.]
[ 532 ]
hath been seen or known, have not letted to subtract and withdraw the lareful and accustomed tithes of corn, hay, pasturages, and other sort of tithes and oblations, commonly due to the owners, proprietaries, and possessors of the parsonages, vicarages, and other ecclesiastical places within this realm : being the more encouraged thereto, for that divers of the king's subjects, being lay persons, having parsonages, vicarages, and tithes to them, and their heirs, or to the heirs of their bodies, or for term of life or years, cannot by the order and course of the ecclesiastical laws of this realm sue in any ecclesiastical court for the wrongful withholding and detaining of the said tithes or other duties, nor can by the order of the common laws of this realm have any due remedy against any person, his heirs, or assigns, that wrongfully detaineth or withholdeth the same : by occasion whereof much controversy, suit, and variance is like to ensue among the king's subjects, to the great damage and decay of many of them, if convenient and speedy remedy be not provided : It is therefore enacted, that all persons of this realm, of what estate, degree, or condition soever (4) they be, shall fully, truly, and effectually divide, set out, yield, or pay, all and singular tithes and offerings aforesaid, according to the lawful customs and usages of parishes and places whence such tithes or duties shall arise or become due; and if any person, of his ungodly and perverse will, shall detain and withhold any of the said tithes or offerings, or any part thereof, then the person or persons, being ecclesiastical or lay (4), having cause to demand the said tithes or offerings, being thereby wronged or grieved shall and may convent the person so offending before the ordinary, his commissary, or other competent minister or lawful judge of the place where such wrong shall be done, according to the ecclesiastical laws; and in every such cause or matter of suit, the same ordinary or other judge, having the parties or their lawful procurators before him, shall proceed to the examination, hearing, and determination of every such cause or matter, ordinarily or summarily, according to the course and process of the said ecclefiastical laws, and thereupon give sentence accord- [ 533 ] ingly. 1, 2.
And if any of the parties shall appeal from the sentence, order, and definitive judgment of the said ordinary or other competent judge as aforesaid, then the same judge shall, upon such appellation made, adjudge to the other party the reasonable costs of his suit thereinbefore expended; and shall compel the same
(4) For at common law, and before this statute laymen could not have been possessed of or sued for tithes. Ridley v. Storey, Dan. R. 10. Thus the tithes of a rectory cannot descend by the custom of gavelkind, though the lands thereof may. Doe d. Lushington v. Bp. of Llandaff and others, 1 New. R. 491-508.
party apellant to satisfy and pay the same costs so adjudged, by compulsory process and censures of the said laws ecclesiastical, taking surety of the other party to whom such costs shall be adjudged and paid, to restore the same costs to the party appellant, if afterwards the principal cause of that suit of appeal shall be adjudged against the same party to whom the same costs shall be yielded ; and so every ordinary or other competent judge ecclesiastical shall adjudge costs to the other party, upon every appeal to be made in any suit or cause of subtraction or detention of any tithes or offerings, or in any other suit to be made concerning the duty of such tithes or offerings. $ 3.
And if any person, after such sentence definitive given against him, shall obstinately and wilfully refuse to pay his tithes or duties, or such sums of money so 'adjudged, wherein he shall be condemned for the same; it shall be lawful for two justices of the peace for the same shire, whereof one to be of the quorum, upon information, certificate, or complaint to them made in writing by the said ecclesiastical judge that gave the same sentence, to cause the same party so refusing to be attached and committed to the next gaol, and there to remain without bail or mainprize, till he shall have found sufficient sureties, to be bound by recognizance or otherwise, before the same justices, to the use of our lord the king, to perform the said definitive sentence and judgment. 5. 4.
Provided, that no person shall be sued or otherwise compelled to pay any tithes, for any manors, lands, tenements, or other hereditaments, which by the laws or statutes of this realm are discharged or not chargeable with the payment of any such tithes. $5.
Provided also, that this shall not in any wise bind the inhabitants of the city of London and suburbs of the same, to pay their tithes and offerings within the same city and suburbs, otherwise than they ought to have done before. $6.
And in all cases where any person shall have any estate of inheritance, freehold, term, right, or interest, in any parsonage,
vicarage, portion, pension, tithes, oblations, or other ecclesiastical [ 534 ) or spiritual profit, which shall be made temporal or admitted to
be in temporal hands and lay uses and profits by the laws or statutes of this realm, shall be disseised, deforced, wronged, or otherwise kept or put from their lawful inheritance, estate, seisin, possession, occupation, term, right, or interest therein, by any other person claiming to have interest in or title to the same; the person so disseised, deforced, or wrongfully kept or put out, his heirs, his wife, and such other to whom such injury and wrong shall be done, may have their remedy in the king's temporal courts, or other temporal courts, as the case shall require, for the recovery or obtaining of the same, by writs original of præcipe quod reddat, assize of novel disseisin, mort d'ancestor, quod ei
the 2 & 3 Ed. 6.
deforceat, writs of dower, or other writs original, as the case shall require, to be devised and granted in the king's court of chancery, in like manner and form as they might have had for lands, tenements, or other hereditaments in such manner to be demanded: and writs of covenant and other writs for fines to be levied, and all other assurances to be had of the same, shall be granted in the said chancery, according as hath been used for fines to be levied and assurance to be had of lands, tenements, or other hereditaments. Provided, that this shall not give any remedy, cause of action, or suit, in the courts temporal, against any person who shall refuse to set out his tithes, or shall withhold or refuse to pay his tithes or offerings; but that in all such cases the party, being ecclesiastical or lay, having cause to demand or have the said tithes or offerings, and thereby wronged or grieved, shall have his remedy for the same in the spiritual courts, according to the ordinance in the first part of this act mentioned, and not otherwise. $ 7, 8.
6. By the 2 & 3 Ed. 6. c. 13. the aforesaid acts of the 27 H.8. Recovery c, 20. and the 32 H. 8. c. 7. shall stand in full force: And more
value in the over, it is further enacted as followeth; viz. All persons shall
temporal truly and justly, without fraud or guile, divide, set out, yield, courts by and
pay all manner of the predial tithes, in their proper kind as they rise and happen, in such manner and form as hath been of right yielded and paid within forty years next before the making of this act, or of right or custom ought to have been paid; and no person shall take or carry away any such or like tithes, which have been yielded or paid within the said forty years, or of right ought to have been paid in the place or places tithable of the same, before he hath justly divided or set forth for the tithe thereof the tenth part of the same, or otherwise agreed for the same tithes with the parson, vicar, or other owner, proprietary, or farmer of the same tithes ; under the pain of forfeiture of treble value of the tithes so taken or carried away. g 1.
Truly and justly, without fraud or guile] In the case of Heale [ 535 ] and Sprat, T. 44 Eliz. In a prohibition; the case was, Heale did set out his prædial tithes, and divided them justly from the nine parts, and soon after carried the same away. Sprat sued for a subtraction of the same in the ecclesiastical court. Heale pleaded that he had set them out, as above. Whereunto Sprat said, that presently after his setting out, he carried the same away, to the defrauding of the statute. And it was adjudged, that this was fraud and guile within this act, albeit he did justly divide the same within the letter of this law. It was further resolved, that if the owner of the corn before severance grant the same to another, of intent that the grantee should take away the same, to the end to defraud the parson of his tithe; this is fraud and guile within the statute. 2 Inst. 649.
Prædial tithes] This branch extends only to prædial tithes (such as can be set out, both great and small. (5)] Thus in the case of Booth and Southraie, E. 1 Ja. In debt upon this statute by the parson of the church, for not setting forth the tithes of cheese, calves, lambs, cherries, and pears, to have the treble value; the defendant pleaded nihil debet, and it was found against him. And it was moved in arrest of judgment, that the said tithes of cheese, or calves, and lambs, were not prædial tithes, and therefore not within this branch of the statute; and this act is penal, and shall not be taken by equity. Which was allowed by the whole court. 2 Inst. 649. (Cro. Eliz. 475.) Within
forty years next before the making of this act] This time of forty years is set down, because forty years in the ecclesiastical court is the usual time for proof of a modus. 2 Inst. 649. 1 Ought. 263. [1 P. Wms. 663.]
Or of right or custom ought to have been paid] The sense of these words, of right ought to have been paid, is of tithes to be yielded in specie within forty years, and the sense of the words; of right or custom, is, by rightful custom de modo decimandi. 2 Inst. 650. (d)
(5) Per Macdonald C. B. in Scarr v. Trin. Coll. 3 Anstr. R.760. 9 Vin. Abr. tit. Dismes (G 6.) Beadle v. Sherman, Cro. El. 608. 2 Inst. 650. 2 Ld. Raym. 1172.
(d) A declaration on this statute must state that the tithes were paid, or ought to have been paid, forty years before the making of the statute; otherwise the plaintiff' must give evidence of actual payment. Ld. Mansfield v. Clarke, 5 T. Rep. 264. (n. a. Spieres v. Parker, 1 T. R. 145. And it is bad in arrest of judgment, even after verdict. Butt v. Howard, 4 B. & A. R. 655.] But where the declaration, stated that they were of right yielded and payable, and yielded and paid, the court of king's bench held that the action lay, although there was no evidence of actual payment, but, on the contrary, the land, as far back as was remembered, had been in grass till 1791, when it was ploughed, and had never paid any prædial tithe ; for there was no evidence here to presume a grant of the tithes. Mitchell v. Walker, 5 T. Rep. 260. And in a subsequent case, where it was alleged that the tithes were granted, yielded, and paid, and were of right due and payable, the court of common pleas held, that the plaintiff need not prove that the article was cultivated on the land before the making of the stat. Ed. 6.; but it lies on the defendant to prove it was not. Halliwell v. Trappes, 2 Bos. & Pul. N. Rep. 173. [In an action for not setting out tithes, the plaintiff must state his title, at least accurately enough to bring it within the words of the statute under which he sues ; a declaration by lessee of tithes therefore, as
proprietor" of them, is bad. Stevens v. Aldridge, 5 Pri. R. 334. In answer to a suit for subtraction of tithe, it is not sufficient to state generally that instead of a tithable gain, a loss accrued, without specifically setting forth the deductions claimed. Leith v. Cliff, 2 Phill. R. 389. Whether a suit for subtraction of tithes is barred by certificate of