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I Inft. 159.
573. All thefe appropriated tithes were granted by the crown to lay perfons, who are called Lay Impropriators, and who have the fame rights refpecting fuch tithes, as if they were really rectors of the different parifhes from which fuch tithes are payable.
§ 74. Where a portion of tithes was vefted in the crown, and afterwards granted to a layman, he ac quired the fame right to it as the spiritual perfon in whom it was formerly vefted had.
§ 75. By the ftatute 32 Hen. 8. c. 7. f. 7. it is enafted, that all perfons having tithes thus vefted in them, fhall have the fame remedies for the recovery thereof as for lands and tenements. And Lord Coke fays, that tithes in the hands of laymen are temporal inheritances, and shall be accounted affets; hufbands fhall be tenants by the curtefy, and wives endowed of them, and fhall have other incidents belonging to temporal. inheritances.
§ 76. A lay rector is now entitled to tithes of common right, as fully as a fpiritual rector. And it is fufficient for him, where he files a bill for tithes, to fet forth that he is feifed of the impropriate rectory: and, if he makes out his title to that, it will be fufficient, without bringing proof of his having received tithes.
§ 77. A perfon may have an eftate in fce, in tail, for life, or years, in tithes, which may be aliened,
charged, or incumbered, in the fame manner as lands: Tit. 35. 36.
§ 78. The poffeffion of a portion of tithes fevered from a rectory for 250 years, is a fufficient title; as a court would, in fuch cafe, prefume a conveyance.
§ 79. An action was brought to recover a depofit made by the plaintiff upon his bidding for the manor of Elham, and lands at Elham in Kent, of which 549 acres were represented by the particular of fale, to be tithe free, or rather, that the vendor was entitled to the tithes of thofe lands.
An objection was made to the title of the vendor to the tithes, as to which the facts were. The priory of Rochester was entitled to a portion of the tithes of the lands fold. Henry 8., in the 33d year of his reign, granted them to the dean and chapter of Rochester, but they never had poffeffion of them; nor had any tithe ever been paid of the lands in queftion, except a modus of 20 s. to the vicar.
The manor of Elham efcheated to the crown in 41 Edw. 3., and was granted by Rich. 2. to feoffees, in truft for St. Stephen's chapel at Westminster, where it remained till the diffolution of colleges and chantries in 1 Edw. 6., who granted it with all its rights and appurtenances to Lord Clinton. It was reconveyed to the crown the next year; and James 1. granted it to
Tit. 11. c. 3. f. 25.
fion of a Por
tion of Tithes
Sir Charles Herbert in fee, with all its rights and appurtenances; from whom it came to the vendor.
On the part of the plaintiff, it was infifted, that here was no pretence of an exemption from payment of tithes. That the title to them was in the dean and chapter of Rochester; and that if a grant from them was to b preumed, the tithes were not conveyed by later deeds, for want of exprefs words, and therefore were in the crown, or in the heirs of Sir Charles Herbert.
On the part of the defendants, it was admitted, that this was not an exemption. But it was faid, that, from a poffeffion of 250 years, a conveyance from the dean and chapter of Rochester prior to 13 Eliz. would be prefumed; and that the general words were fufficient to convey the tithes as profits of the lands.
Lord Kenyon, before whom the abstract and all the opinions taken on both fides had been laid, faid :— "All objections are admitted to be removed, except "that which relates to the tithes. A court of equity, "in these cafes, has a difcretion, which I, fitting here, "cannot exercife, as I am bound to tell the jury, that "the plaintiff cannot recover his depofit, if there be "a good title to thefe tithes; and on all the circum"ftances, I think there is fuch good title. Here is "poffeffion of them for 25 years.
The rector cannot.
Who can difturb
Thefe tithes have
"been fevered from the rectory ever fince the con"queft. If these tithes had been part of the rectorial
"tithes, no time would have barred the rector. "Where is there any other right? The dean and "chapter of Rochester might before the 13 Eliz. have “alienated them. I am very clear that, on a poffef"fion of two centuries and a half, I must tell the jury, that they should prefume any conveyance from "the dean and chapter."
Mr. Law then fuggefted, that there were no words of conveyance of the tithes.
Lord Kenyon" I think the tithes do pafs. The "vendor will now convey as you please, and in what "form of words you please. I think I fhould exer"cife my difcretion in a court of equity, in the fame way I do my discretion here, where I am bound by
"ftrict law, and must tell the jury, that there is a
good title. Such a length of poffeffion is a pofitive prefcription, as they fay in the civil law.
The church "of Rochester never had the tithes, as of common "law right. I must tell the jury that it is a good "title, and that the plaintiff cannot recover."
The plaintiff was nonfuited.
tions from Tithes.
§ 80. Lands may be exempted from the payment of of Exemptithes in various ways: fuch exemptions however arise not from any natural or inherent quality in the land, but from collateral reasons.
§ 81. The first kind of exemption from tithe, is Prescription called a prescription de non decimando, which is a claim
De non decimando.
to be entirely discharged from tithes, and to pay no compenfation for them; and may be a privilege an◄ nexed, either to the perfons holding lands, or to the lands themfelves.
§ 82. The king, who is faid to be perfona mixta, being capable of having tithes, may prescribe to be difcharged from the payment of tithes. For the rule is, that thofe, who are capable of having tithes, may be discharged from the payment of them: therefore lands, lying within a' forest, and in the hands of the king, do not pay tithes, although they are within a parish; but this privilege extends only to the king's leffee, and not to his feoffee.
§ 83. Spiritual perfons, or corporations being capable of having tithes in pernancy, may prescribe to be discharged generally: fo that no tithe fhall be paid of their own lands, nor any recompence for them. Befides, it is a maxim of law, that ecclefia decimas non Bp. of Win- folvit ecclefiæ; and a fpiritual perfon may prescribe de non decimando for himfelf, his farmers, and tenants, and alfo for his copyholders: for, by this means, it is to be prefumed, that the bishop has greater fines and
2 Rep. 44.
$ 84. The rector of a parish is not liable to the payment of tithes to the vicar, nor the vicar to the rector and a lay impropriator is also exempted from paying tithes to the vicar, out of the glebe, as long as he holds it in his own hands. But, upon the death