It sometimes happens that one person has a yur of the tithes within the parish of another, which is called a portion of tithes; and the person entitled to it is called a portionist. These portions for- & are supposed to be prior to the council of Lateran, when it was lawful for every one to distribute his tithes, or any portion thereof, to whatever church he pleased. And a portion of tithes does not become extinct by vesting in the same hands with the rectory.

1. When the practice of appropriating the ad: Bun 60. Yowsers of rectories or parsonages to monasteries, was introduced; the monks usually deputed one of their own body to perform divine service and other duties in those parishes, of which the society was rector; who was called the vicar. But by several statutes it was ordered that such vicar should be a secular priest, and sufficiently endowed, at the discretion of the ordinary. The endowments were usually of the small tithes; the greater or predial tithes being still reserved to the monastery; from whence arose a division of tithes into rectorial and

62. The rector or parson is prima facie entitled to all the tithes of the parish; therefore payment of tithes to the rector is a sufficient discharge against the vicar; because all tithes of common right belong to the rector, and the vicarage is derived out of the parsonage. So that no tithes belong de jure to the vicar, but only on an endowment, or by prescription, which ought to be shown on the part of the vicar; and the Court cannot intend it; for the vicarage is a parsonage, of which

ution or impairing of the the Court will not take notice, unless the parties

\ Now it.

63. Where the vicar produces an endowment, then Awdry v. Smallcombe, the situation of the parties is reversed. The prima Gwill. 1526. facie title to the extent of that endowment is in favour of the vicar; and if the rector would claim any of the articles comprehended within the terms of it, the onus probandi is thrown upon him. In this case it is incumbent on the rector to give such clear and cogent evidence of an usage in the parish in his favour, with respect to the articles he would insist upon, as shall narrow the terms of the endowment, and induce a presumption, that the parties interested in the tithes had come to a new agreement: that some different arrangement had been made with respect to the distribution of the tithes, between the date of the endowment, and the disabling statute of Queen Elizabeth.

64. It has been determined, that if a vicar hath Bunb. 74. for a long time used to take particular tithes or profits, he shall not lose them because the original endowment is produced, and they are not there. For every bishop having an indisputable right to augment vicarages, as there was occasion; and this whether such right was reserved in the endowment or not: the law will therefore presume that this addition was made by way of augmentation.

65. The loss of the original endowment is supplied Idem. by prescription; that is, if the vicar hath enjoyed any particular tithe for a long time, the law will presume that he was legally endowed of it; for the same reason that it presumes some tithes might have been added by way of augmentation, which were not in the original endowment.

2 Inst. 647. 2 Rep. 44 a.

66. In those places which are not within any The King. parish, as in forests and the like, the King is entitled to the tithes, because he is not a mere layman, but

Lords of
Manors.

2 Rep. 45 a.

Lay Impropriators.

Crathorne v.
Taylor,
2 Bro. Parl.

Ca. 512.

Wats. 509.

persona mixta. This point was resolved in parliament 5 Edw. III. in a suit between the Crown and the bishop of Carlisle, who claimed the tithes of the forest of Inglewood.

67. Lords of manors may be entitled to the tithes of the manor, by prescription. For in such a case it will be supposed that the lord was seised of the whole manor, before the tenancies were derived thereout ; and then by composition or other lawful means, the lord acquired the tithes, paying a certain pension to the parson.

68. When the monasteries were dissolved by king Henry VIII. the appropriation of the several benefices which belonged to the religious houses would, by the rules of the common law, have become disappropriated, had not a clause been inserted in all the statutes, by which the monasteries were given to the Crown; to vest such appropriated benefices in the King, in as ample a manner as the monasteries had held the same, at the time of their dissolution.

69. Almost all these appropriated benefices have been granted by the Crown to lay persons; and are now held by their descendants, or by those who have These are purchased them from such grantees. called lay impropriators; and by several statutes they have the same rights, respecting such benefices, as if they were religious persons.

70. Grants of this kind are either of the rectory or parsonage, which comprises the parish church with all its rights, glebes, tithes, and other profits whatsoever; or else of the tithes of a particular tract of land.

71. Where a portion of tithes was vested in the Crown, and afterwards granted to a layman, he acquired the same right to it as the spiritual person

in

whom it was originally vested. Portions of tithes might also formerly be granted by religious corporations to laymen, to whom they may now belong under that title.

72. By the statute 32 Hen. VIII. c. 7. § 7. it is enacted, that all persons having any estate of inheritance, freehold, term, right, or interest, of, in, or to any parsonage, vicarage, portion, pension, tithes, oblations, or other ecclesiastical or spiritual profit, which were or should be made temporal, shall have the same remedies for recovery thereof, as for lands and tenements.

they may

have.

73. With respect to the estate which lay impro- What Estate priators are capable of having in tithes, they may be tenants in fee simple, fee tail, for life or years. Husbands shall be tenants by the curtesy, and widows endowed of them. They are accounted assets for payment of debts, and have all other incidents belonging to temporal inheritances.

74. An estate in tithes may be held in joint tenancy, coparcenary, or in common; and a partition of any of these may be obtained by a bill in Chancery. 75. On a bill for a partition of tithes and casual Baxter v. profits in the Isle of Wight, the defendant demurred, 1 Ves. 494. upon the ground that there were no casual profits, and that it might be divided upon a writ of partition.

Lord Hardwicke said," An ejectment will lie of tithes, of which the execution is a writ of possession'; and the sheriff may do as much on partition as on a writ of possession on ejectment. This is not casual, whether tithes will rise or not. I do not doubt but this Court can divide them, as it may several things which cannot at law. Overrule the demurrer, therefore."

Knollys,

Of Exemptions from Tithes.

76. Estates in tithes are alienable by lay impropriators, in the same manner as other real estates; and are comprehended within the statute of uses, under the word hereditaments.

77. It should, however, be observed, that no good title can be made to tithes, by a lay impropriator, without showing the letters patent by which the tithes, or the rectory or parsonage to which they are annexed, were granted by the Crown to some lay person; for this is the only mode of repelling any claim which may be made to those tithes by an ecclesiastical person claiming jure ecclesiæ. The letters patent should be inspected, to see that no reversion remains in the Crown.

78. With respect to exemptions from tithes, it should first be observed, that by the old law no lay2 Rep. 44 a. man was capable of having tithes, nor allowed to prescribe generally that his lands were exempt from the payment of tithes; for, without special matter shown, it should not be intended that he had any lawful discharge: therefore, the mere non-payment 3 Burn, 410. of tithes, though for time immemorial, does not amount to an exemption, and cannot be pleaded against a spiritual person, without setting out and establishing the causes of such exemption, except in the case of portionists. Lands may, however, be exempted from the payment of tithes by real composition, by a special prescription, which is either de modo decimandi, or de non decimando, or by act of parliament.

414.

infra.

Real Composition.

2 Inst. 490. Gwill. 801.

79. A real composition is where an agreement is made between the owner of lands and the parson or vicar, with the consent of the patron and ordinary, that his lands shall in future be freed from the pay.