Incumbent dying. [T. 37 Geo. 3. Chapman v. Beard. This was a suit for tithes in the court of exchequer. The defendant in his answer denied the title of the rector, and insisted that he had not been regularly inducted, and that he had not read the thirty-nine articles. It was held that the plaintiff, having been in possession fifteen years, there was prima facie evidence of a regular induction, and of reading the thirty-nine articles; and that the defendant, having paid tithes to him, there was also primâ facie evidence against him of the rector's title. 4 Gwill. 1482.] 13. If the incumbent dieth, his executor may recover the tithes which became due in the testator's lifetime; but he is not [ 551] entitled to the treble value upon the statute. [Anon.] 1 Vern. 60. [M. 49 Geo. 3. Williams v. Powell. In this case the vicar of Abergavenny made certain compositions with his parishioners for the vicarial tithes, which were payable on the 29th of September. He died on the 10th of March, 1803, having received his compositions up to the 29th of September, 1802. In May following, the defendant, the present vicar, was presented, and in November following was inducted. After Michaelmas in the same year, the defendant received the vicarial tithes from some of his parishioners according to the composition of his pre But Foxcroft v. Parris, 5 Ves. 221. [The former practice in exchequer decessor, and from others, according to new compositions. The plaintiffs, who were the personal representatives of the late vicar, brought an action to recover a proportion of such compositions up to he time of the late vicar's death. The court of K. B. held that the present vicar was not liable to account for more of the compositions which he had received, than the value of the tithes which had become due between the receipt of the last composition by the late incumbent and his death, would amount to. 10 East's Rep. 269. (2) [By 53 Geo. 3. c. 127. § 5. No action shall be brought for recovery of any penalty for not setting out tithes; nor any suit instituted in any court of equity, or ecclesiastical, to recover the value of any tithes, unless within six years of the tithes becoming due. A like provision was enacted for Ireland by 54 Geo. 3. c. 68. § 5. (3)] VIII. Tithes in London. (4) In the several acts of the 27 H. 8. c. 20. § 2. 32 H. 8. c. 7. 2 & 3 Ed. 6. c. 13. and 7 & 8 W. c. 6. there is a proviso, that nothing therein shall extend to the city of London, concerning (2) See ante, 441. Aynsley v. Wordsworth, 2 Ves. & B. 331. (3) The putting in charge in the accounts of successive auditors the tithes of an extra-parochial place, is a sufficient "standing insuper" within 9 G. 3. c. 16. (nullum tempus act); though "Nil" had been always returned in such accounts, and the crown had neither granted leases of tithes or received any within 60 years. Atto. Gen. v. Lord Eardley, 8 Pri. R. 74. So where the auditors had made due returns to the officers of the commissioners for auditing the public revenue, it was held that such returns constituted a sufficient " putting in charge" within the act, to save the rights of the crown, though nothing had ever been received within 60 years, nor any suit instituted for recovery of such tithes. Atto. Gen. v. Maxwell, 8 Pri. R. 176. 66 (4) See on this subject, Tyrwhitt's "Argument on the Non-inrol"ment in Chancery of the Decree for Tithes in London, annexed to "Stat. 37 H. 8. c. 12.;" published by Messrs. Butterworth and Son, "1823: and " Report of the case of Owen, clerk, v. Abbott; or case "of St. Olave's, Hart-Street, before the Lord Mayor, on Feb. 8. 1823, "in which the tithe of 2s. 9d. in the pound on rack rental was claimed by the plaintiff under 37 H. 8. c. 12.; with the opinions of the Re"corder and Common Serjeant thereon;" Sherwood's, &c. The cause of the Rev. G. Beresford v. The Parishioners of the London Liberty of St. Andrew's, Holborn (which occasioned the Editor's above-mentioned "Argument"), was afterwards compromised before the hearing; and an act of the 4 Geo. 4., which received the royal assent on June 27. 1823, fixed a certain stipend to be paid to the present incumbent and his successors in lieu of all the tithes soever arising within this liberty. [Limita tion of suits for tithes.] 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 there. Which order is as followeth: It appeared by the records of the city of London, that Niger bishop of London, in the 13 Hen. 3., made a constitution, in confirmation of an ancient custom formerly used time out of mind, that provision should be made for the ministers of London in this manner: that is to say, that he who paid the rent of 20s. for his house wherein he dwelt, should offer every Sunday, and every apostle's day whereof the evening was fasted, one halfpenny; and he that paid but 10s. rent yearly, should offer but one farthing: all which amounted to the proportion of 2s. 6d. in the pound, for there were 52 Sundays, and eight apostle's days, the vigils of which were fasted. And if it chanced that one of the apostle's days fell upon a Sunday, then there was but one halfpenny or farthing paid; so that sometimes it fell out to be somewhat less than 2s. 6d. in the pound. And it appears by the book cases in the reign of Edward the third, that the provision made for the ministers of London, was by offerings and obventions; albeit the particulars are not assigned there, but must be understood according to the former ordinance made by Niger. And the payment of 2s. 6d. in the pound continuing until the 13 Ric. 2. Arundel archbishop of Canterbury made an explan[552]ation of Niger's constitution, and thrust upon the citizens of London two and twenty more saints' days than were intended by the constitution made by Niger; whereby the offerings now amounted unto the sum of 3s. 5d. in the pound. And there being some reluctation by the citizens of London, pope Innocent, in the 5 Hen. 4., granted his bull, whereby Arundel's explanation was confirmed. Which confirmation (notwithstanding the difference between the ministers and citizens of London, about those two and twenty saints' days which were added to their number) pope Nicholas also by his bull did confirm in the 31 H. 6. Against which the citizens of London did contend with so high a hand, that they caused a record to be made, whereby it might appear in future ages, that the order of explanation made by the archbishop of Canterbury was done without calling the citizens of London unto it, or any consent given by them. And it was branded by them as an order surreptitiously and abruptly obtained, and therefore more fit to have the name of a destructory than a declaratory order. Nevertheless, notwithstanding this contention, the payment seemeth to have been most usually made according to the rate of 3s. 5d. in the pound. For Lindwood, who writ in the time of Hen. 6., in his provincial constitutions debating the question, whether the merchants and artificers of the city of London ought to pay any tithes, sheweth, that the citizens of London, by an ancient ordinance observed in the said city, are bound every Lord's day and every principal feast-day either of the apostles or others whose vigils are fasted, to pay one farthing for every 10s. rent that they paid for their houses wherein they dwelt. And in the 36 Hen. 6. there was a composition made between the citizens of London, and the ministers, that a payment should be made by the citizens according to the rate of 3s. 5d. in the pound: and if any house were kept in the proper hand of the owner, or were demised without reservation of any rent; then the churchwardens of the parish where the houses were should set down a rate of the houses, and according to that rate payment should be made. After which composition so made, there was an act of common council made in the 14 Edw. 4. in London, for the confirmation of the bull granted by pope Nicholas. But the citizens of London finding that by the common laws [ 553 ] of the realm, no bull of the pope, nor arbitrary composition, nor act of common council, could bind them in such things as concerned their inheritance; they still wrestled with the clergy, and would not condescend to the payment of the said 11d. by the year, obtruded upon them by the addition of the two and twenty saints' days: whereupon there was a submission to the lord chancellor and divers others of the privy council in the time of king Hen. 8.; and they made an order for the payment of tithes according to the rate of 2s. 9d. in the pound; which order was first promulgated by a proclamation made and afterwards established by an act of parliament made in the 27 H. 8. c. 21. intitled, “An "act for the payment of tithes within the city and suburbs of "London, until another law and order shall be made and publish❝ed for the same." Privilegia Londini, 456, 457, 458. (5) And ten years after this another law and order was made, by the statute of the 37 H. 8. c. 12. as followeth: Where of late time, contention, strife, and variance hath risen and grown, within the city of London and the liberties of the same, between the parsons, vicars, and curates of the said city, and the citizens and inhabitants of the same, for and concerning the payment of tithes oblations, and other duties, within the said city and liberties; for appeasing whereof, a certain order and decree was made thereof, by the most reverend father in God, Thomas archbishop of Canterbury, Thomas Audley, knight, lord Audley of Walden, and then lord chancellor of England, now deceased, and other of the king's most honourable privy council; and also the king's letters (5) It has been questioned, whether this act is not still in force. See" Tyrwhitt's Argument," pages 25-27. patents and proclamation was made thereof, and directed to the said citizens concerning the same; whereupon it was after enacted in the parliament holden at Westminster by prorogation, the fourth day of February, in the twenty-seventh year of the king's most noble reign, that the citizens and inhabitants of the same city should at Easter then next following, pay unto the curates of the said city and suburbs, all such and like sums of money for tithes, oblations, and other duties, as the said citizens and inhabitants by the order of the said late lord chancellor, and other the king's most honourable council, and the king's said proclamation, paid or ought to have paid by force and virtue of the said order at Easter in the year 1535; and the same payments so to continue from time to time, until such time as any other order or law [ 554 ] should be made by the king and the two and thirty persons by the king to be named, as well for the full establishment concerning the payment of all tithes, oblations, and other duties of the inhabitants within the said city, suburbs, and liberties of the same, as for the making of other ecclesiastical laws of this realm of England; and that every person denying to pay as is aforesaid, should by the commandment of the mayor of London for the time being, be committed to prison, there to remain until such time as he should have agreed with the curate for his said tithes, oblations, and other duties as is aforesaid, as in the said act more plainly appeareth : since which act, divers variances, contentions, and strifes are newly arisen and grown, between the said parsons, vicars, and curates, and the said citizens and inhabitants, touching the payment of the tithes, oblations, and other duties, by reason of certain words and terms specified in the said order, which are not so plainly and fully set forth, as is thought convenient and meet to be; for appeasing whereof, as well the said parsons, vicars, and curates, as the said citizens and inhabitants, have compromitted and put themselves to stand to such order and decree touching the premises, as shall be made by the said right reverend father in God and the several other persons hereunder mentioned, for a final end and conclusion to be had and made touching the premises for ever: and to the intent to have a full peace and perfect end between the said parties, their heirs, and successors, touching the said tithes, oblations, and other duties for ever, it is enacted, that such end, order, and direction as shall be made by the fore-named archbishop and the several other persons as aforesaid, or any six of them, before the first day of March next ensuing, concerning the payment of tithes, oblations, and other duties within the said city and the liberties thereof, and inrolled of record in the high court of chancery (6), shall stand, remain, and be as an act of parliament, and shall bind (6) See 551. note (1). |
