Or otherwise agreed for the same with the parson, vicar, or other owner, proprietary, or farmer of the said tithes] E. 6 G. 3. Chave and Calmel. A prohibition was moved for to the consistorial court of the bishop of Exeter, to stay proceeding in a cause instituted there for subduction of tithes. The case was, that Mr. Calmel the impropriator had employed one Finnimore as his agent, to collect and compound for tithes. Chave the occupier had agreed with Finnimore, after the corn was cut and ready to be housed, for 5l. Whereupon he housed his whole crop, without setting out the tithes. Chave's agreement with Finnimore was only by parol. The impropriator libelled in the eclesiastical Court against Chave, for not setting out his tithes. Chave tendered the 5., and offered a plea that he had purchased the tithes for 57. The ecclesiastical court rejected this plea. The question was, whether this was matter of appeal, or of prohibition? And the court were unanimous, that it was matter of prohibition. They founded their opinion upon this rejection of the plea being a grievance irreparable; and upon an apprehension, that the ecclesiastical court must have grounded their rejection upon a supposed difference between their law and the common law; that is to say, they took it for granted, that the ecclesiastical court were of opinion, agreeable to what is laid down by bishop Gibson (who takes it from a note in Noy,) that an agreement with the agent of a proprietor of tithes will not bind the proprietor: whereas by the common law, and in common sense and common justice, a composition by the occupier with the agent of the proprietor doth bind and ought to bind his principal. Indeed, where the ecclesiastical court have jurisdiction, and proceed therein according to their law, where it doth not differ from the common law, the rejection of a plea would be matter of appeal. But where the ecclesiastical law differs from the common law, and the ecclesiastical court would require greater proof from the defendant than the common law requires; or would esteem an agreement not to bind the impropriator, which at common law would bind him; there an appeal could be of no service to the defendant in the ecclesiastical court: because the superior ecclesiastical court would [537] equally adhere to their own law, as the inferior ecclesiastical court had done; and would determine alike, as being guided by the same principle of determination. Therefore, as the judges of this court supposed that in the present case the judge of the consistory court rejected the plea because he thought the agreement with the agent not binding upon Mr. Calmel the principal, which at common law did bind him, they held this to be matter of prohibition and not of appeal. And though it had been observed,

bankruptcy seems undecided. Breithwaite v. Hollingshead, 1 Hagg. R. 470.]

8

that tithes lie in grant; yet they had no doubt that the occupier might, with sufficient propriety, be said to have purchased these tithes, notwithstanding the contract was only by parol. For whatever might have been objected to its not being by deed, if this corn had been standing, or if it had been a sale by the proprietor of the tithes to a third person, yet the present case is by no means liable to such an objection: for the corn was here severed from the ground, and ready to be housed; and it was not a sale of the tithes by the proprietor to a stranger, but a composition between the proprietor and occupier, for that turn only.

3 Burr. R. 1873.

Under the pain of forfeiture of treble value of the tithes so taken and carried away] This branch doth not give the forfeiture to any person in certain; and therefore it was pretended, that the forfeiture should be given to the king: and thereupon, the attorney-general, H. 29 El. did exhibit an information in the exchequer, against one Wood a parishioner of Iclington in the county of Cambridge, for this treble forfeiture, for carrying away his tithes before they were justly divided. The defendant pleaded not guilty; and by a jury at the bar he was found guilty: and in arrest of judgment it was moved, that in this case the forfeiture was not given to the king, for that the words of the act be, under the pain of forfeiture of treble value of the tithes so taken away: and whensoever a forfeiture is given against him that doth dispossess the owner of his property, as here he doth of his tithes, there the forfeiture is given to the party grieved or dispossessed; and the rather, for that this is an additional law, and made for the benefit of the proprietor of the tithes. And so it was adjudged by Manwood and the whole court of exchequer. And this was the first leading case that was adjudged upon this point: and ever since, it hath been received for law, that the party interested in [538] the tithes shall in action of debt recover the treble value. 1 Inst.

159. 2 Inst. 650.

ant.

[H. 47 Geo. 3. Philips v. Davies. This was an action on the stat. 2 & 3 Ed. 6. c. 13. by the impropriator, to recover the treble value of the tithes of corn omitted to be set out by the defendAt the trial the defence set up was a custom to set out the eleventh mow of corn, instead of the tenth. The learned judge nonsuited the plaintiff, on the ground, that an action to recover a penalty was not a proper form of action to try a substantial question of right. A motion was made to set aside the nonsuit; and the court of K. B. held that the validity of this custom was fit to be tried in this form of action, though penal in its nature: being given to the party grieved, and his only remedy at common law for the subtraction of the tithe due to him. 8 Term Rep. 178.]

And it is to be observed, that the treble value only, and not the tithes themselves, nor any satisfaction for them, may be re

covered in the temporal court; that being out of the jurisdiction of those courts, and wholly in the spiritual court. Which is the reason why in all suits upon this statute, the action is not laid for subtraction of tithes, but for a contempt of the statute, in not setting them out. And being a contempt, the action dies with him who committed the contempt, and doth not lie against his executor. Gibs. 697. 1 Vern. 60.

And it hath been held, that an action grounded on this statute, for not setting forth of tithes, is not within the statute of limitations, that statute not extending to actions grounded on acts of parliament; therefore the plaintiff is not by law confined to six years, or to any other time certain, within which to bring his action. Wats. c. 58.

Thus, in the case of Marston and Clepole, E. 1726; on a bill by a lay impropriator for tithes in the court of exchequer, for about twenty-four years; the defendant, as to such part of the bill as prayed discovery and relief for any time before within six years next before filing the bill, or serving the subpoena, pleaded the statute of limitations, and that he did not promise to make any satisfaction for any tithes before the said six years; but it was over-ruled by the court, because the defendant, as to tithes, is only in the nature of a receiver or bailiff for the plaintiff; in which case the statute of limitations doth not operate. Bunb. 213.

If a jury give a verdict for the plaintiff, they must find the real value of the tithes, which shall be trebled by the court; as if the jury find the real and single value to be twenty pounds, they ought to give the plaintiff only so much, and the court shall treble it, and make that sum given by the jury to be sixty pounds, which is the treble value. But if the issue be upon the custom of tithing, or any other collateral point, the jury then need not to find any value of the tithes; for that in such case the defendant shall pay the value expressed by the plaintiff in his declaration: because, by the collateral matter pleaded in bar, the value of the tithes set forth in the declaration is confessed. Therefore in all actions brought upon this statute, if the defendant plead any collateral matter in bar of the action, he must take the value of the tithes mentioned in the declaration by protestation; that is, he [ 539] must by the form of a protestation aver, that the tithes were not of that value as is declared; otherwise he will be charged with the value the plaintiff hath by his declaration set upon them. And the same law is said to be, if judgment be given for the plaintiff by nihil dicit, non sum informatus, or upon demurrer. Wats. c. 58.

And neither damages nor costs can be recovered with the treble value; because the statute hath not expressly given them: except that by the statute of the 8 & 9 W. c. 11. it is enacted, that in all actions of debt upon the statute for not setting forth of

Recovery

of double

tithes, wherein the single value or damage found by the jury shall not exceed the sum of twenty nobles, the plaintiff obtaining judgment, or any award of execution after plea pleaded, or demurrer joined therein, shall recover his costs of suit; and if the plaintiff shall become nonsuit, or suffer a discontinuance, or a verdict shall pass against him, the defendant shall recover his costs. §3.

7. By the aforesaid statute of the 2 & 3 Ed. 6. c.13. At all value in the times whensoever, and as often as any prædial tithes shall be ecclesiasti- due at the tithing of the same, it shall be lawful to every party cal court by to whom any of the said tithes ought to be paid, or his deputy

the same

statute.

[540]

or servant, to view and see their said tithes to be justly and truly set forth and severed from the nine parts; and the same quietly to take and carry away: and if any person carry away his corn or hay, or his other prædial tithes, before the tithe thereof be set forth; or willingly withdraw his tithes of the same, or of such other things whereof prædial tithes ought to be paid; or do stop or let the parson, vicar, proprietor, owner, or other their deputies or farmers, to view, take, and carry away their tithes as is abovesaid; by reason whereof the said tithe or tenth is lost, impaired, or hurt: then upon due proof thereof made before the spiritual judge, or any other judge to whom heretofore he might have made complaint, the party so carrying away, withdrawing, letting, or stopping, shall pay the double value of the tenth of tithe so taken, lost, withdrawn, or carried away, over and besides the costs, charges, and expences of the suit in the same: The same to be recovered before the ecclesiastical judge, according to the king's ecclesiastical laws. § 2.

Provided, that no person shall be sued or otherwise compelled to yield, give, or pay any manner of tithes, for any manors, lands, tenements, or hereditaments, which by the laws and statutes of this realm, or by any privilege or prescription, are not chargeable with the payment of any such tithes, or that be discharged by any composition real. § 4.

Shall pay the double value] The reason why the double value is by this branch to be recovered in the ecclesiastical court, where by the former branch the parson at the common law shall recover the treble, is, for that in the ecclesiastical court he shall recover the tithes themselves; and therefore the value recovered in the ecclesiastical court is equivalent with the treble forfeiture at the common law. 2 Inst. 650.

And the double value, together with the statute, ought to be expressly mentioned in the libel: but yet the libel must be so ordered, as not to be grounded directly upon the statute for more than double value; for if the single damages, that is, the value of the tithes, be also grounded upon it, this will be interpreted a suing in the spiritual court for treble value; and a prohibition will lie. Godb. 245. Gibs. 697.

Over and besides the costs, charges, and expences] So as the suit in the ecclesiastical court is more advantageous, than the suit for the treble forfeiture at the common law. For at the common law he shall recover no costs; but he shall recover in the ecclesiastical court his costs, charges, and expences. 2 Inst. 651.

tions, &c.

court.

8. And if any person do subtract or withdraw any manner of Manner of tithes, obventions, profits, commodities, or other duties (before men- suing for tioned), or any part of them, contrary to the true meaning of this tithes, oblaact, or of any other act heretofore made; the party so subtracting in the ecor withdrawing the same may be convented and sued in the king's clesiastical ecclesiastical court, by the party from whom the same shall be subtracted or withdrawn, to the intent the king's ecclesiastical judge may hear and determine the same, according to the king's ecclesiastical laws: And it shall not be lawful to the parson, vicar, proprietor, owner, or other their farmers or deputies, contrary to this act, to convent or sue such withholder of tithes, obventions, and other duties aforesaid, before any other judge than ecclesiastical. 2 & 3 Ed. 6. c. 13. § 13.

And if any archbishop, bishop, chancellor, or other judge ecclesiastical, give any sentence in the aforesaid causes of tithes, obventions, profits, emoluments, and other duties aforesaid, or in any of them (and no appeal or prohibition hanging), and the party condemned do not obey the said sentence; it shall be lawful to every such judge ecclesiastical, to excommunicate the said party so as aforesaid condemned and disobeying in which sentence of excommunication, if the said party excommunicate wilfully stand and endure still excommunicate by the space of forty days next after, upon denunciation and publication thereof in the parish church, or the place or parish where the party so excommunicate is dwelling or most abiding; the said judge ec- [ 541 ] clesiastical may then at his pleasure signify to the king in his court of chancery, of the state and condition of the said party so excommunicate, and thereupon require process de excommunicato capiendo to be awarded against every such person as hath been so excommunicate. Id.

And if the party in such case shall sue for a prohibition, he shall, before any prohibition granted, deliver to some of the justices or judge of the court where he demandeth prohibition, a true copy of the libel, subscribed by his hand; and under the copy of the said libel shall be written the suggestion wherefore he demandeth the prohibition: And in case the said suggestion, by two honest and sufficient witnesses at least, be not proved true in the court where the said prohibition shall be so granted, within six months next following (6), after the said prohibition shall be

(6) These are calendar and not lunar months, and the act extends to prohibitions in suits for small tithes as well as great. Foy v. Lister,