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Tithes.

Part II. decimando, yet if the tithes belong to a lay imAction for propriator, and the land in question has been constantly ploughed, and no tithe paid, it may Vide Com. be ground for the Jury to presume a grant by Rep. 648. Rotheram him, and severance of the land from the rectory. On this case, therefore, the onus will lie on the defendant to shew that it has been constantly before in a state of tillage.

. Fan

shaw, 3

Atk. 628.

ST. Rep.

264, &c.

Bishop of

127's Case,

In cases where the lands are discharged from tithes by a money payment or modus, the evidence will be of the same nature as in all other cases of custom. But where the defendant contends that the lands are wholly exempt from tithes, he must shew the ground of discharge; for the mere circumstance of their not having been before charged, is (as observed above) not sufficient, because a layman cannot set up a prescription de non decimando without deducing his title from some ecclesiastical person, though he may one, de modo decimandi, without any such aid.

But though a layman cannot so prescribe, a Winches- bishop, or his tenant or copyholder, may shew 2Co 44 that he and all his predecessors, seised of such a manor in right of the bishoprick, have held the manor by them and their tenants discharged of tithes; and the Stat. of 31 H. VIII. c. 13. having continued the exemption of lands belonging to the monasteries thereby dissolved, in the same manner as those religious houses enjoyed them before their dissolution, any lay

person,

1. 2.

Action for

Tithes.

person, upon shewing that such lands did be- Ch. XVI. long to a religious house dissolved by that Statute, or by Stat. 32 H. VIII. c. 24. and that while in their hands they were exempt from tithes, may hold such lands discharged from them, in the same manner as they were enjoyed Vide Hob. by the monastery.

297

The grounds of discharge, which spiritual persons enjoyed before this Statute, were four in number, viz. 1. By the Pope's bull of exemption, which may, as was observed before, Ante, 89. be proved by the bull itself, or an exemplification of it under the bishop's seal, and proof that the lands in question belonged to those mentioned in it.

Molins,

205.

endly, By prescription, and unless it be Nash v. proved that the lands have paid tithes, the Cro. Eliz. mere circumstance of their having belonged to a monastery so dissolved, will be prima facie evidence that they immemorially held it discharged of tithes. The religious house must Hob. 300. be one founded before the time of legal memory (1 Rich. I.) for if founded within that time, there could be no such prescription.

3dly, By composition real, which was, when lands, or other real recompence, were assigned to the parson as a compensation for the tithes of the land in question. This must be made with the parson, by consent of the patron and ordinary, and may exist in the case of a layman, as well as of an ecclesiastical person. Those made with the ecclesiastical houses must, of course, be made

before

Part II. before the Stat. of 15 Eliz. c. 10. by which par-Action for sons and vicars are restrained from making any

Tithes.

13 Eliz.

C. 10.

conveyances of the estate of their churches, other than for their lives, or twenty-one years, so that no composition created since that time can be supported against the successor, though 2 Wood, confirmed by decree of the Court of Chancery. To prove a composition with a lay person, Comyn's however, the instrument itself whereby the Rep. 649, composition was made, should be shewn, for no presumption is admitted of it.

107. Vide

and Hob.

297.

Lord v.
Tuck,

4thly, By order, as the templers, cistericans, and hospitallers of Jerusalem; these, however, were exempted only during such time as the lands. were in their own occupation and manurance. To entitle lands to this exemption it is necesBunb.122. Sary that they should have been in the hands of those orders before the Council of Lateran (1179); and if such lands have ever paid tithes it will induce a presumption that they were Wison v. purchased by them after that time. Another Hard. 174. restriction on this exemption is, that the lands are only privileged while in the hands of the person who has an estate of inheritance in them as a tenant in fee or in tail, for a mere lessce for life or for years (unless holding immediately under the crown) is chargeable in respect Owen, 46. of them during his occupation.

Redman,

Hob. 298.

But the Statute of H. VIII. has introduced another exemption which did not exist before it, and that is, where there was a unity of possession by the religious house, of the parsonage

and

f. 2. Action for

Tithes.

and the land which is attempted to be charged, Ch. XVI. provided that such unity existed from time immemorial, and that no tithe was paid for it by the abbot or his farmer; for if united within time of memory, or tithe has been paid, it is not discharged by the Statute. However, in this Saville, 62 case, as in the former, if the unity be proved, and the time of the union cannot be ascertained, and there is no evidence of tithes having been paid, the presumption will be in favour of its exemption. This, therefore, is in effect the Vide Hob. same as a discharge by prescription, and when 299. put specially on the record may be so pleaded.

Fosset y

It may be proper to observe on these several 2 Co. 47. modes of exemption, that they extend only to Franklin, such lands as came to the crown by virtue of Sir T. Raym the Stat. of 51 and 32 H. VIII. and not to such 225. as came to it either by 27 II. VIII. c. 28. which dissolved the lesser abbeys, or by 1 Edw. VI.

C. 14.

The fact of the lands belonging to a monastery, &c. is generally proved by the survey of their lands at or soon after the time of their dissolution, or by some other public document, the evidence and effect of which have been before taken notice of. Most of the documents are to be found either in the Augmentation Office or Chapter House.

Another defence, which may be made to actions of this kind, is where barren lands are newly inclosed. These are exempted for seven years by the before-mentioned Statute of

Edward

Vide Bul.

N. P. 191.

Vez. 117

Part II. Edward VI. but, to support this defence, it must Action for be proved, that the land is utterly barren and

Tithes.

Jones v.

Le Davids,
Exch. Hil.
T1791.
ex rel.

Serj.

unprofitable. Land which when cleared will immediately yield a crop without any manure, though the inclosure is attended with considerable expence, is liable to tithe; and, therefore, Williams, a warren, or sheep walk which is ploughed, a wood which is grubbed and then sown with corn, land recovered from the sea, or drained, cannot claim this exemption, unless they are so bad in themselves as to require manure before they will produce any crop.

Action for
Dilapida-

tions.

SECTION III.

In the Action for Dilapidations.

IN the Action for Dilapidations of the parsonage house or buildings, brought against the predecessor of the plaintiff, or his executor, the plaintiff must, in the first place, prove his own title, by the same means as are pointed out in the case of an ejectment for the rectory, or action for not setting out tithes. He must then prove that the defendant or his testator was possessed of the living, and this possession may be proved by the circumstance of his acting as parson, by preaching, taking tithe, &c. Lastly, the plaintiff must prove the state of the buildings at the time

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