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but then, if he be sued for them, in order to justify, he must set forth how long they had remained before he took them; and when they shall be said to remain too long is triable by the jury. Wats. c. 54. [And see Mountford v. Sidley, 3 Bulst. R. 336. Gwm. 424.]
Or an action upon the case will lie against the parson for his Action on negligence in this behalf: but no action in such case will lie, against the unless the parishioner hath duly set forth his tithes, and hath also
parson.] given notice to the parson that they are so set forth. Deg. p.2. c. 14. L. Raym. 187.(a)
But the occupier of the ground cannot put in his cattle and destroy the corn or other tithe: for that is to makeh imself a judge what shall be deemed a convenient time for taking it away ; [and to permit this to be done might be a much greater loss to the tithe owner than the occupier might sustain by the continuance of the tithe on the land.] But the court and jury, upon an action brought, are to determine of the reasonableness of the time, and of the recompence to be made for the injury sustained. L. Raym. 189. (6)
VII. Tithes how to be recovered. 1. That tithes may not be lost to the successors, it is in- Incumbent joined by a constitution of archbishop Winchelsea, that the compelled rectors and vicars of churches, who, respecting the fear or favour of men more than the fear of God, shall not demand their tithes with effect, shall be suspended until they pay half a mark of silver to the archdeacon for their disobedience. Lind. 191.
(a) [Shapcott v. Mudford ; and see Butter v. Heathby, 3 Burr. R. 1892. supra, 4. Com. Dig. tit. Dismes (L 3.) Chase v. Ware, Rol. Ab. 643. pl. 30. Style, 242. Anon. Ventr. 48. ; but he need not allege such notice: and see] 3 Burr. 1892. supra, 4. For the grounds of this action, see Wiseman v. Denham, 2 Roll. Rep. 328. [Due notices having been given to the parson of the setting out the tithes of fruit and vegetables in a garden, which were accordingly set out on the day specified, but were not removed at the distance of a month afterwards, when they had become rotten ; a notice then given by the owner to remove the tithed fruits and vegetables within two days, or that an action would be commenced against the parson, is sufficient notice of their having been set out, whereon to found an action if they are not removed : And due notices having been given of setting out tithes of garden vegetables and field barley, on certain days between 11th and 16th Sept. a general notice on the 17th to the parson to take away all the tithes of (plaintiff's) lands within two days, is sufficient whereon to found the like action. Kemp v. Filewood, 11 East. R. 358.]
(6) Williams v. Ladner, 8 Term Rep. 72. [Gale v. Ewer, 1 Com. R. 23. 12 Mod. 117.]
Who to be 2. The general rule is, that the owner of the nine parts sued,
is to be sued for the tenth. But this rule admits of divers
exceptions: As, [ 527] First, If a parishioner let his ground of herbage, it is said,
that the parson may sue either the owner of the ground: or the owner of the cattle, at his election, for the tithe, if the custom be not against it. God. 413.
But in the case of Fisher and Lemen, where cattle were depastured occasionally in another man's ground, it was agreed by the whole court of exchequer, that the owner of the land, and not the owner of the cattle, was to pay the tithes : And baron Page said, that as to what had been said, that the demand might be either against occupier or agister, that could not be; for the same duty could not arise in two different persons at the same time. Viner, Dismes, L. a. [See ante, 475.]
So, if hay be put into ricks on the ground, and after sold; the buyer camot be sued for the tithe, but the seller may, in case the tithe thereof was not paid before. God. 412.
But if one sells underwood standing, or corn or grass on the ground; the buyer, and not the seller, shall pay the tithes. Boh. 158.
But if any part thereof be cut before the sale, the seller must answer the tithe thereof. Boh. 159.
So where one sells sheep, whereof the parson is to have a rate tithe; the seller, and not the buyer, must pay the tithe for them. Boh. 158.
So if one that is owner of a coppice of wood do cut it down and sell it altogether; in this case the seller, and not the buyer, must answer for the tithes. Boh. 159.
If cattle or other goods tithable be pawned or pledged, it is said, that he to whom they are pledged must pay tithe of them. Boh. 1 59.
But if a man deliver cattle or goods to one, to be re-delivered to him; he himself, and not the person to whom they are delivered, must pay tithe for them. Boh. 159.
If a parishioner die before he pay his tithes; his executor, if
he hath assets, must pay them. Boh. 159. To whom 3. By the 2 & 3 Ed. 6. c. 13. Every person who shall have to be paid, any beasts or other cattle tithable, going, feeding, nor depasturing where the
in parish is any waste or common ground,
whereof the parish is not cernot known, tainly known, shall pay tithes for the increase of the said cattle
so going in the said waste or common, to the parson,
said cattle inhabiteth or dwelleth. $ 3. [ 528 ] 4. In the Saxon times, tithes were recoverable in the county Anciently court, where the bishop or his deputy, and the sheriff, did sit as
co-ordinate judges, there being at that time no separate court of recoverable ordinary ecclesiastical jurisdiction. 2 Inst. 661.
5. By a constitution of archbishop Winchelsea: Forasmuch court. as many are found, who are not willing freely to pay their tithes; Recoverwe do ordain, that the parishioners be admonished once, twice, able in the and thrice to pay their tithes to God and the church. And if court; by they do not amend, they shall first be suspended from the en- the canon trance of the church, and so at last be compelled to pay their law, and by tithes by censures ecclesiastical, if it shall be necessary. And if tutes. [Sce they shall desire a relaxation or absolution of the said suspen- judicavit, sion, they shall be remitted to the ordinary of the place to be and note absolved and punished in due manner. Lindw. 191.
By the statute of circumspecte agatis, 13 Ed. 1. st. 4. The king to his judges sendeth greeting: Use yourselves circumspectly in all matters concerning the clergy, not punishing them if they hold plea in court christian, in the case where a parson doth demand of his parishioners oblation or tithes due and accustomed: In which case, the spiritual judge shall have power to take knowledge, notwithstanding the king's prohibition.
Due and accustomed] Debitas vel consuetas : By this act, lord Coke says, modus decimandi and real composition are established [perhaps he had better have said, distinguished; for both of them were established long enough before this act]: for hereby tithes are divided into two parts, viz. tithes due, which is the tenth part; and tithes accustomed, which is a duty personal, due by custom and usage to the parson in satisfaction of tithes, as a yearly sum of money or other duty. And these are here called tithes accustomed ; and for this modus decimandi the parson may sue in court christian, and is warranted by this act. 2 Inst. 490.
By the statute of articuli cleri, 9 Ed. 2. st. 1. c.l. Whereas laymen do purchase prohibitions generally upon tithes, obventions, oblations, mortuaries; the king doth answer to this article, that in tithes, oblations, obventions, mortuaries, (when they are propounded under these names,) the king's prohibition shall hold no place, although for the long withholding of the same the money may
be esteemed at a sum certain. But if a clerk or a religious man do sell his tithes, being gathered in his barn, or otherwise, to any man for money, if the money be demanded before a spiritual judge, the king's prohibition shall lie; for by the sale, the spiritual goods are made temporal, and the tithes [ 529 ] turned into chattels.
By the 18 Ed. 3. st. 3. c. 7. Whereas writs of scire facias have been granted to warn prelates, religious, and other clerks, to answer dismes in our chancery, and to shew if they have any thing, or can any thing say, wherefore such dismes ought not to be restored to the said demandants, and to answer as well to us as to the party such dismes; such writs from henceforth shall
not be granted, and the process hanging upon such writs shall be annulled and repealed, and the parties dismissed from the secular judges of such manner of pleas.
Writs of scire facias] This is a writ, where one hath recovered debts or damages in the king's courts, and sueth not for execution within a year and a day; after which he shall have this writ, to warn the party; who coming not or saying nothing to stay execution, a writ of fieri facias goes, commanding the sheriff to levy the debts or damages of his goods. Terms of the Law.
To warn prelates, religious, and other clerks] This scire facias was not brought against the possessors of the land for subtraction of tithes, but against the prelates or other clerks which took the tithes after they were severed. Commissions out of the chancery were directed to certain persons, giving them authority to inquire, whether such a spiritual person ought to have tithes of such lands; whereupon inquisitions were taken and returned: and if it were found for the spiritual person, upon this record he might have a scire facias against any prelate, religious, or other clerk that took them after severance. 2 Inst. 640.
By the i Ric. 2. c. 13. The prelates and clergy of this realm do greatly complain them, for that the people of holy church, pursuing in the spiritual court for their tithes, and their other things which of right ought and of old times were wont to pertain to the same spiritual court; and that the judges of holy church, having cognizance in such causes, and other persons thereof meddling according to the law, be maliciously and unduly for this cause indicted, imprisoned, and by secular power horribly oppressed, and also inforced with violence by oaths and grievous obligations, and many other means unduly compelled to desist and cease utterly of the things aforesaid, against the liberties and franchises of holy church: Wherefore it is assented, that all such obligations made or to be made by duress or violence shall be of no value. And as to those that by malice do procure such indictments, and to be the same indictors, after the same
indictees be so acquit; such procurers shall suffer a year's im[ 530 ] prisonment, and restore to the parties their damages, and shall
nevertheless make a grievous fine unto the king. And the justices of assize, or other justices, before whom such indictees shall be acquit, shall have power to inquire of such procurers and indictors, and duly to punish them according to their desert.
By the 1 Ric. 2. c.14. At what time that any person of the holy church be drawn in plea in the secular court, for his own tithes taken by the name of goods taken away; and he which is so drawn in plea maketh an exception, or allegeth that the substance and suit of the business is only upon tithes due of right and of possession to his church or other his benefice: in
such case the general averment shall not be taken, without shewing specially how the same was his lay chattel.
By the statute 27 H. 8. c. 20. When by the noise of the disso. lution of monasteries in this parliament, laymen took occasion upon trifling pretences to withdraw their tithes, it was enacted as followeth : Forasmuch as divers 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 having attenipted to subtract and withhold in some places the whole, and in some places great part of their tithes and oblations, as well personal as prædial, due unto God and holy church; and pursuing such their detestable enormities and injuries, have attempted in late time past to disobey and contemn the process, laws, and decrees of the ecclesiastical courts of this realm, in more temerarious 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 this present parliament, That every of his subjects of this realm, according to the ecclesiastical laws and ordinances of his church of England, and after the laudable uses and customs of the parish or other place where he dwelleth or occupieth, shall yield and pay his tithes and offerings, and other duties of holy church ; and that for such subtractions of any the said tithes and offerings, or other duties, the parson, vicar, curate, or other party in that behalf grieved, may by due process of the king's ecclesiastical laws of the church of England, convent the person offending, before his 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 offending to do and yield his duty in that behalf: And in case the ordinary of the diocese or his commissary, or the archdeacon or his official, cr any other competent judge aforesaid, for any contempt, contu- [531 ] macy, disobedience, or other misdemeanor of the party defendant, shall 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
in any cause before rehearsed; that then he of the king's said honourable council
, or such two justices of the peace (whereof one to be of the quorum), to whom such information or request shall be made, shall have power to attach or cause to be attached, the person against whom such information or request shall be made, and to commit him to