of the rector, vicar, or lay impropriator, his executor is liable to tithes of the growing crop. § 85. A prefcription de non decimando may alfo be annexed to the lands, though in the poffeffion of lay perfons; but this can only arife from the following circumstances. § 86. By the canon law the orders of cistertians, knights templars, and hofpitallers, and alfo the premonftratenfes, were exempted from the payment of tithes out of the lands, which they poffeffed prior to the year 1215. Upon the diffolution of the abbies and monafteries by Henry 8., these exemptions from tithes would have fallen with them; and the lands would again have be come titheable, had they not been supported and upheld by the ftatute 31 Hen. 8.; by which it was enacted that the king, his heirs and fucceffors, and all other perfons, their heirs and affigns, who fhall have any of the diffolved abbies, fhall enjoy them discharged from payment of tithes, in as ample a manner as the abbots held and enjoyed the fame. § 87. In confequence of this ftatute, if a man can thew that his lands were formerly in the poffeffion of any of the privileged religious orders, and thereby, or from any other caufe, exempted from the payment of tithes, he may plead a prescription de non decimando. Hett v. Meeds, in § 88. Where a perfon was tenant for life, under a fettlement, of lands, which were formerly part of the Scace. 1799. poffeffions 4 Gwill 1515. poffeffions of the ciftertian order, and by that means exempt from tithes while in the manurance of the owner: It was contended, that the tenant for life had not fuch a quantity of interest, as would fupport that privilege; that, to entitle the lands to that exemption, the perfon occupying them must be the owner of the inheritance; he must have the fame eftate in him, which the monaftery had. That, in the cafe of Wilfon v. Redman, Hard. 174., the court held, that tenant for life or years was not within the ftatute; but that tenant in tail, who had an eftate of inheritance, was difcharged quamdiu propriis manibus, &c. Lord Ch. Baron.-" It is admitted in this case, that a tenant in tail is intitled to the exemption which "is claimed; but it is argued, that a tenant for life "under à fettlement is not. It was faid, that the "tenant must hold the lands as the monaftery held "them, elfe the privilege cannot attach. But it is im poffible that the lands can now be holden precisely "in the fame manner as they were holden by the monaftery; the monaftery had them to them and their "fucceffors, but now a man has them to him and his "heirs. But a fee fimple may be divided into por"tions, into different eftates for life, in tail, and re"mainder in fee. Where will be the difficulty to fay, "that the tenants of each portion fhall have the benefit "as they fuccced? The cafe of Wilfon v. Redman has "been cited; but, from an extract from the answer "in that cafe, which I have been furnished with, the "parties there appear to have had a fee fimple; and "therefore that not being a cafe in which it was ne 66 ceffary "ceffary to decide the point, it cannot be confidered "of any authority. I confefs, I cannot fee The court decreed unanimoufly, that the tenant for life was exempt, and difmiffed the bill as against him, but without costs. § 89. Thefe are the only grounds, on which a prefcription de non decimando can in general be founded: for it has long been established, that there can be no prefcription de non decimando against the church; without fhewing the reafon of it. And that the prefump tion arifing from a conftant non-payment of tithes, will not be fufficient, unlefs the tenant can fhew either that the lands were parcel of the poffeffions of one of the privileged religious orders, or that a real compofition had been made, by which the tithes were released. § 90. It appears alfo to have been formerly held, that a prefcription de non decimando could not be pleaded against a lay impropriator without fhewing the ground of exemption; but this doctrine has been doubted in fome modern cafes. $ 91. A bill Whether Bury v. Evans, Fanfhaw v. § 91. A bill was brought in the exchequer by a lay impropriator, for tithe of hay and potatoes. The defence was, that no tithe had ever been paid for the land, nor any modus or compofition. It was faid for the defendant that the reafon, why a layman fhould not prefcribe in non decimando, was founded on prin ciples, which did not hold fince tithes were lay inhe ritances. That now, from length of time and poffeffion, there was the fame reafon to prefume a grant from the lay impropriator, in this cafe, as in cafes of other inheritances. That this was not used as a prefcription; but as an evidence of right, and to include a prefumption of a grant. That, before laymen were capable of tithes, an exemption was not fufficient to arife from non-payment of tithes only, but fince, it is quite otherwife; and poffeffion in the hands of a layman is as good evidence of a right to tithes, as of any other right. The Lord Chief Baron was of opinion, that a layman could not prescribe in non decimando against a lay impropriator, no more than against a fpiritual one. That it had been faid that the ftatute of Henry 8. which made tithes lay inheritances, had altered the case; but that a prescription from that time would not be good; and confequently that ftatute could not create a right by prescription. That this doctrine was not inconvenient for grants of tithes might be preserved by inrollment, and therefore were not likely to be loft, if due care was taken of them. That an act of parliament was attempted to remedy this by Sir George Heathcote, about fifteen years before, which miscarried, Baron Carter was of the fame opinion. Baron Reynolds doubted. Baron Clarke faid, he knew no cafe, which deferved more confideration: for, though the authorities against fuch a prescription were very great, yet the reason of them grew weaker every day. Before the reformation, all tithes were ecclefiaftical; and a layman could have tithes by way of discharge only by the grant of patron, parfon, and ordinary. Since that, there were other ways both of having tithes, and of being discharged from them. Since tithes had been in the hands of lay impropriators, many perfons had purchased discharges for their particular lands; yet, if thofe grants were loft by the common fate of things, thofe perfons must lofe the benefit of their purchases, and that must often happen, though they were enrolled, or any other way was taken to preserve them. Very few records of the church were extant; and it would be very hard that time, which strengthens all other rights, fhould weaken this. It seemed very extraordinary, that a layman Infra. might prefcribe, upon a prefumption of a grant, for a portion of tithes in the foil of another, even against the rector of the parish; and yet could not prefcribe for the tithes of his own lands, in the fame' way. If, therefore, he should concur in this opinion, it would be merely from the force of authority: for he thought that the reason of the thing was strong against it. He allowed that, in general, authorities ought to prevail in law; becaufe great inconveniences and confufion would arife from overturning established rules of pro perty. |