No. 30. c. 56. an Order of the II. And be it further enacted, That in all Cases where Monies 39 & 40 Geo. III. subjected to be laid out in the Purchase of Hereditaments to be settled Securities for such as aforesaid, shall happen to be invested in Government or Real or Money may be other Securities, all such Securities shall, for the Purposes of this Act, transferred under be considered as Money, and shall and may accordingly be transferred, Court of Chan- assigned, and disposed of, under an Order of the respective Courts aforesaid, made in a summary Way upon the Petition of such Persons, and with such Examination and Consent, where necessary, as aforesaid, in such and the same Manner as Monies subjected to be laid out in the Purchase of Hereditaments, to be settled as aforesaid, are herein before authorized to be paid, applied, and disposed of. cery, &c. 279 PART II. CLASS II. TITHES. [In the Note prefixed to the Statutes respecting the Clergy, it was mentioned, that the Statutes relating to Tithes would form a Class under Part IV. with the Exception of those relating to the Power of recovering Tithes before Justices of Peace, which were intended to be placed in Part VI.-but upon further Consideration, it has been thought more convenient to introduce the Subject at this Place. For the Notes upon the Subject of Tithes, I am chiefly indebted to the Assistance of the neat and compendious Treatise of Mr. Toller.] No. 1. 45 Edward III. c. 3.-A Prohibition shall be granted where a Suit shall be commenced in a Spiritual Court for Sylva cædua. ITE TEM a la pleinte des ditz grantz & communes monstranz par lour petition qe come ilз vendent leur gros boys dage de vint anns ou quarrante ans ou de greindre age as marchantz en profit de eux mesmes & en eide du Roi en sa guerre parsones & vikers de Seint esglise les ditz marchantz empledent & travaillent en court Cristien pur les dismes du dit boys en noun de ceste parole Silve cedue par quoi ils ne poeient vendre leur boys a verroie pris a grant damage de eux & de Roialme est ordeine & establi qe prohibition en ce cas soit grantee & sur ce attachement come ad este avant ces heures. 66 TEM, At the Complaint of 45 Edw. III. c. 3. the said Great Men and 11 Co. 48. ITEN « Commons, shewing by their 50 Ed. 3, f. 10. "Petition, That whereas they 9 H. 6, 56. "sell their great Wood of the Plow. 470. "Age of twenty Years, or of Cro. El. 1, 477. "forty Years, or of greater Age, 736. "to Merchants to their own 2 Inst. 642. "Profit, or in Aid of the King Cro. Jac. 100, "in his Wars, Parsons and Vi- 133. "cars of holy Church do im"plead and draw the said Mer"chants in the Spiritual Court "for the Tithes of the said "Wood, in the Name of this "Word called Sylva cadua, "whereby they cannot sell their ،، Woods to the very Value, to "the great Damage of them and "of the Realm;" it is ordained and established, That a Prohibition in this Case shall be 'granted, and upon the same an Regist. 44. Attachment, as it hath been Fitz.N.B.54.b. used before this Time.' (1) Rast. 489. (1) The most important Exposition of the above Statute is contained in the Judgment of Lord Hardwicke, in the Case of Walker v. Tyrer, Gwill. 818. Tithes of Wood are due of common Right, in Cases not protected by the Statute. By the Statute, Oak, Ash, and Elim, which are regarded as Timber No. 1. by the Common Law, are exempt from Tithes, if of twenty Years' Growth, 45 Edw 111, c. 3. without Regard to the Use to which they may be applied; other Trees, which are not Timber generally, may be so by the Customs of particular Counties, as Beach, in Buckinghamshire; and when this Custom prevails, such Trees are in like Manner protected by the Statute, being of the above Growth, and the Age and Custom concurring, no Inquiry is allowed as to the Quality of the particular Trees; and with Respect to Trees which are clearly of a Species to be denominated Timber, the Court have declared they would presume the Trees to be above twenty Years' Growth, unless the Plaintiff demanding Tithes prove the contrary-2 P. Wms. 606, Gwill. 357.-Wright v. Powle, Hob. 219, Gwill. 358, Note.-Gaffy v. Pindar, 2 Rol. Rep. 83. When the Trees are exempt, no Tithe is payable for the Bark, Tops, or Lops, except in particular Cases open to Frauds, as when Loppings of Timber, standing in a Copse Wood, are intermixed with the Fall of the Copse Wood-Walton v. Tyrer, ub. sup. In Daws v. Mollins, 2 Lees, 79, it had been laid down, that if Woods, consisting chiefly of Timber Trees with Underwood intermixed, are cut down and made into Faggots promiscuously, it not being worth while to separate them, the Timber shall privilege the whole; but if the Woods are mostly Underwood, with here and there an Oak, and all are cut and made into Faggots indiscriminately, the whole shall pay. Timber Trees, having attained the requisite Growth, are exempted, although being unfit for Timber, and only fit for Fuel-and though after attaining such Growth they may be lopped every seven Years.-See Withington v. Harris, Gwill. 581See also Gwill. 836, and Authorities cited, Toller, 102. But if a Tree is lopped before it is of twenty Years' Growth, and afterwards periodically, the Loppings are titheable.-Broke v. Rogers, Mo. 908, Gwill. 833. If it ceases to be lopped for twenty Years successively, it is said to become Timber, and to be privileged-1 R. A. 640-Digge, p. 11, c. 4-but see Guill. 165. Tithe is payable for the Germs or Branches growing out of the Root of felled Timber Trees, of what Age soever.—Per Lord Hardwicke in Walton v. Tyrer, contradicting the opposite Position, in 2 Inst. 643.-And in the Case of Ford v. Backster, B. R. East, 1815, decided immediately before the printing of this Note, it was held, that such Germs or Branches are not privileged, notwithstanding the cutting may only take Place after a Period of twenty Years. 27 H VIII. c 20. This Stature is fourmed and en ged by 2 & 3 Edw 6. c. 13. 18 Faw 3, stat 3, <7 45 Edw 3. c 3 5 len 4, c 11. ་ No. 2. 27 Henry VIII. c. 20.-For Tithes to be paid throughout this Realm. FOR ORASMUCH as divers Numbers of evil-disposed Persons inhabited in sundry Counties, Cities, Towns and Places of this Realm, having no Respect to their Duties to Almighty God, but against Right and good Conscience have attempted to subtract and 'withhold, in some Places the whole, and in some Places great Parts of their Tithes and Oblations, as well personal as predial, due unto 'God and Holy Church; and, pursuing such their detestable Enormities and Injuries, have attempted in late Time past to disobey, contemn and despise the Process, Laws and Decrees of the Ecclesiastical Courts of this Realm, in more temerous and large Manner than before this Time hath been seen: For Reformation of which said Injuries, and for Unity and Peace to be preserved amongst the King's Subjects of this Realm, our Sovereign Lord the King being supreme Head on Earth (under God) of the Church of England, willing the spiritual Rights and Duties of that Church to be preserved, continued and maintained, hath ordained and enacted by Authority of Tithes shall be this present Parliament, That every of his Subjects of this Realm of Faid according to England, Ireland, Wales, and Caleis, and Marches of the same, ac Parsh where they cording to the Ecclesiastical Laws and Ordinances of his Church of England, and after the laudable Usages and Customs of the Parish or the Cust m of the be due. No. 2. Tithes shall be cou The Offender shall other Places where he dwelleth or occupieth, shall yield and pay his Tithes, Offerings and other Duties of holy Church; and that for such 27 H. VIII. c. 20. Subtractions of any of the said Tithes, Offerings or other Duties, the The Offender Parson, Vicar, Curate, or other Party in that Behalf grieved, may, by in subtracting of dae Process of the King's Ecclesiastical Laws of the Church of vented before the England, couvent the Person or Persons so offending before his Ordinary. Ordinary, or other competent Judge of this Realm, having Authority to hear and determine the Right of Tithes, as also to compel the same Person or Persons offending to do and yield their said Duties in that Behalf. And in case the Ordinary of the Diocese, or his Commissary, or the Archdeacon_or his Official, or any other competent Judge aforesaid, for any Contempt, Contumacy, Disobedience, or other Misdemeanor of the Party Defendant, make Information and Request to any of the King's most honourable Council, or to the Justices of the Peace of the Shire where such Offender dwelleth, to assist and aid the same Ordinary, Commissary, Archdeacon, Official or Judge, to order or reform any such Person in any Cause before rehearsed; that be bound by two then he of the King's said honourable Council, or such two Justices Justices of Peace, of the Peace, whereof the One to be of the Quorum, to whom such &c. to obey the Ordinary's Information or Request shall be made, shall have full Power and tence. Authority, by Virtue of this Act, to attach or cause to be attached, See 4 Bur. 2095. the Person or Persons against whom such Information or Request shall be made, and to commit the same Person or Persons to ward, there to remain without Bail and Mainprize, till that he or they shall have found sufficient Surety, to be bound by Recognizance or otherwise before the King's said Councellor, or Justice of Peace, or any ether like Councellor, or Justice of Peace, to the Use of our said Sovereign Lord the King, to give due Obedience to the Processes, Proceedings, Decrees and Sentences of the Ecclesiastical Court of this Realm, wherein such Suit or Matter for the Premisses shall depend or be. And that every of the King's said Councellors, or two Justices of the Peace, whereof the One to be of the Quorum, as is aforesaid, shall have full Power and Authority, by Virtue of this Aet, to take, receive, and record Recognizances and Obligations in any of the Causes above written. Sen This Act not to II. Provided alway, That this Act, or any Thing therein contained, shall not extend to any Inhabitant of the City of London, for extend to London or concerning any Manner of Tithe, Offering, or other Ecclesiastical Duty, grown and due, to be paid or yielden within the same City, because there is another Order made for the Payment of Tithes and other Duties within the same City. to the III. Provided also, That every Person and Persons, being Party Every Person shall or Parties to any such Suit, shall and may make and have his and have his Demand their lawful Action, Demand or Prosecution, Appeals, Prohibitions, and Deteure ac cording and all other their lawful Defences and Remedies in every such Suit, Laws Ecclesiasti according to the said Ecclesiastical Laws, and Statutes of this Realm, cal. in as ample and liberal Manner and Form as they or any of them might have had, if this Act had never been made; any Thing in this Act above written notwithstanding. IV. Provided always, and be it enacted by Authority aforesaid, That this Act for recovering of Tithes, ne any Thing therein con- 25 H. 8. c. 19, tained, shall take Force and Effect but only until such Time as the § 7. King's Highness, and such other Thirty-two Persons which his 13 Car. 2, st. 1, P. 32 H. VIII. c. 13. Sec. 20. Hetley, 145. 2 Roll. 152, Such Abbey Lands Tithes, shall so Cro. Car. 265, 422. No. 3. 32 Henry VIII. c. 13.-An Act for Dissolution of Monasteries and Abbies.* XX. And where divers and sundry Abbots, Priors, Abesses, Prioresses, and other Ecclesiastical Governors and Governesses of the said late Monasteries, Abbathies, Priories, Nunneries, Colleges, Hospitals, Houses of Friers, and other Religious and Ecclesiastical Houses and Places, have had, possessed and enjoyed divers and sundry Parsonages appropriated, Tithes, Pensions and Portions, and also were acquitted and discharged of and for the Payment or Payments of Tithes, to be paid out or for their said Monasteries, Abbathies, Priories, Nunneries, Colleges, Hospitals, Houses of Friers, and other Religious and Ecclesiastical Houses and Places, Manors, Messuages, Lands, Tenements and Hereditaments: Be it therefore enacted by the Authority abovesaid, That as well the King as before the Dis our Sovereign Lord, his Heirs and Successors, as all and every such solution of them Person and Persons, their Heirs and Assigns, which have, or herewere discharged of after shall have, any Monasteries, Abbathies, Priories, Nunneries, Colleges, Hospitals, Houses of Friers, or other Ecclesiastical Houses or Places, Sites, Circuits, Precincts of the same, or of any of them, or any Manors, Messuages, Parsonages appropriate, Tithes, Pensions, Portions or other Hereditaments, whatsoever they be, which belonged or appertained, or which now belong or appertain unto the said Monasteries, Abbathies, Priories, Nunneries, Colleges, Hospitals, Dyer, f. 227, pl. Houses of Friers, or other Religious and Ecclesiastical Houses and 60, 349, pl. 16. Places, or unto any of them, shall have, hold, retain, keep and enjoy, as well the said Parsonages appropriate, Tithes, Pensions and Portions of the said Monasteries, Abbathies, Priories, Nunneries, Colleges, Hospitals, Houses of Friers, and other Religious and Ecclesiastical Houses and Places, Sites, Circuits, Precincts, Manors, Meases, Lands, Tenements and other Hereditaments, whatsoever they be, and every of them, according to their Estates and Titles, discharged and acquitted of Payment of Tithes, as freely, and in as large and ample Manner, as the said late Abbots, Priors, Abesses, Prioresses, and other Ecclesiastical Governors and Governesses, or any of them had, held, occupied, possessed, used, retained or enjoyed the same, or any Parcel thereof, at the Days of their Dissolution, Suppression, Renouncing, Relinquishing, Forfeiting, Giving up, or coming to the King's Highness, of such Monasteries, Abbathies, Priories, Nunneries, Colleges, Hospitals, Houses of Friers, or other Religious or Ecclesiastical Houses or Places, or at the Day of the Dissolution, Suppression, Renouncing, Relinquishing, Giving up, or coming to the King's Highness of any of them; this Act or any Thing therein contained to the contrary notwithstanding. 356. 2 Co. 46. 11 Co. 8, 16. Co. pl. f. 451, 454. The Monasteries dissolved by this Act, and intitled to Exemption from Tithes, are those of the yearly Value of £200 and upwards, there being no Exemption in Respect of the lesser Monasteries dissolved by 27 Hen. VIII. c. 28. A Catalogue of the greater Monasteries, in Respect of which Exemption may be claimed, is contained in Turner's Notitia-and from thence extracted in Burns' Ecclesiastical Law, Title Tithes, and the Appendix to Toller on Tithes. The following View of the Law respecting such Exemption is abridged from the Treatise of Mr. Toller, Ch. VII. The Exemption may be in Respect, I. Of Unity of Possession by the Monastery of the Parsonage and the Land titheable-and this Exemption takes Place as well when they are in the Hands of a Tenant as when they are in |