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S 73. All these appropriated tithes were granted by the crown to lay perfons, who are called Lay Impropriitors, and who have the same rights respecting such tithes, as if they were really rectors of the different parishes from which such tithes are payable.
S 74. Where a portion of tithes was vested in the crown, and afterwards granted to a layman, he ac, quired the same right to it as the spiritual person in whom it was formerly vested had.
į Inst. 1596.
$ 75. By the statute 32 Hen. 8. c. 7. f. 7. it is enafted, that all persons having tithes thus vested in them, fhall have the same remedies for the recovery thereof as for lands and tenements. And Lord Coke says, that tithes in the hands of laymen are temporal inheritances, and shall be accounted assets; husbands fhall be tenants by the curtesy, and wives endowed of them, and shall have other incidents belonging to temporal inheritances.
Bunb. R., 325
$ 76. A lay rector is now entitled to tithes of common right, as fully as a fpiritual rector. And it is sufficient for him, where he files a bill for tithes, to fet forth that he is feised of the impropriate rectory : and, if he makes out his title to that, it will be susficient, without bringing proof of his having received tithes.
$ 77. A person may have an estate in fce, in tail, for life, or years, in tithes, which may be aliened,
charged, charged, or incumbered, in the same manner as lands: Tit. 35. 36. fines may be levied of them, and recoveries suffered; Tit. 11. c. 3. and they are within the statute of uses.
$ 78. The possession of a portion of tithes severed Long Pofferfrom a rectory for 250 years, is a sufficient title ; as a tion of Tithes court would, in such case, presume a conveyance.
gives a Title.
$ 79. An action was brought to recover a deposit Oxenden v.
Shinner, made by the plaintiff upon his bidding for the manor
4G will. 1513. of Elham, and lands at Elham in Kent, of which 549 acres were represented by the particular of sale, to be tithe free, or rather, that the vendor was entitled to the tithes of those 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 sold. Henry 8., in the 33d year of his reign, granted them to the dean and chapter of Rochester, but they never had possession of them ; nor had any tithe ever been paid of the lands in question, except a modus of 20 s. to the vicar.
The manor of Elbam efcheated to the crown in 41 Edw. 3., and was granted by Rich. 2. to feoffees, in trust for St. Stephen's chapel at Westminster, where it remained till the dissolution of colleges and chantries in i 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
Sir Charles Herbert in fee, with all its rights and appurtenances; from whom it came to the vendor.
On the part of the plaintif, it was insisted, 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 latur deeds, for want of express 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 said, that, from a posiefion of 250 years, a conveyance from the dean and chapter of Rochester prior to 13 Eliz. would be presumed ; and that the general words were sufficient to convey the tithes as profits of the lands.
Lord Kenyon, before whom the abstract and all the opinions taken on both sides had been laid, faid :“ All objections are admitted to be removed, except " that which relates to the tithes. A court of equity, - in these cases, has a discretion, which I, sitting here,
cannot exercise, as I am bound to tell the jury, that " the plaintiff cannot recover his deposit, if there be
a good title to these tithes; and on all the circum“ fances, I think there is such good title. Here is “ pofleffion of them for 250 years.
Who can disturb " the title? The rector cannot. These tithes have “ been fevered from the recory ever fince the conaquest. If these tithes had been part of the rectorial 56 tithes, no time would have barred the rector. “ Where is there any other right? The dean and of chapter of Rochester might before the 13 Eliz. have “ alienated them. I am very clear that, on a posses“ fion of two centuries and a 'half, I must tell the “ jury, that they should presume any conveyance from “ the dean and chapter.”
66 tithes , mando, to
Mr. Law then suggested, that there were no words of conveyance of the tithes.
way I do
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 should exer
discretion in a court of equity, in the same
discretion here, where I am bound by “ strict law, and must tell the jury, that there is a
good title. Such a length of poffeffion is a positive
prescription, as they say in the civil law. The church 6 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 nonsuited.
$ 80. Lands may be exempted from the payment of Of Exemptithes in various ways : such exemptions however arise tions from not from any natural or inherent quality in the land, but from collateral reasons.
S 81. The first kind of exemption from tithe, is Prescription
De non decicalled a prescription de non decimando, which is a claim
to be entirely discharged from tithes, and to pay no conpensation for them; and may be a privilege nexed, either to the persons holding lands, or to the lands themselves.
$ 82. The king, who is said to be perfona mixta, being capable of having tithes, may prescribe to be discharged from the payment of tithes. For the rule is, that those, 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 lesfee, and not to his feoffee.
S 83. Spiritual persons, or corporations being capable of having tithes in pernancy, may prescribe to be discharged generally: so that no tithe shall be paid of their own lands, nor any recompence for them. Be
sides, it is a maxim of law, that ecclefia decimas non 2 Rep. 44. Bp. of Win- selvit ecclefiæ ; and a spiritual person may prescribe de chelier's case.
non decimando for himself, his farmers, and tenants, Crouch v.
and also for his copyholders : for, by this means, it is Frier, Cro.
to be presumed, that the bishop has greater fines and
Blenco v. Martion, Cro. Eliz. 479. 578.
$ 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