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of the rector, vicar, or lay impropriator, his executor is liable to tithes of the growing crop.
$ 85. A prescription de non decimando may also be annexed to the lands, though in the possession of lay persons; but this can only arise from the following circumstances.
S 86. By the canon law the orders of cistertians, knights templars, and hospitallers, and also the premonstratenses, were exempted from the payment of tithes out of the lands, which they possessed prior to the year 1215
Upon the dissolution of the abbies and monasteries 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 statute 31 Hen. 8. ; by which it was enacted that the king, his heirs and successors, and all other persons, their heirs and assigns, who shall have any of the dissolved abbies, shall enjoy them discharged from payment of tithes, in as ample a manner as the abbots held and enjoyed the same.
$ 87. In consequence of this statute, if a man can thew that his lands were formerly in the possession of any of the privileged religious orders, and thereby, or Nash v. from any other cause, exempted from the payment of Cro. Eliz. tithes, he may plead a prescription de non decimando.
liett v. § 88. Where a person was tenant for life, under a
Mieds, in settlement, of lands, which were formerly part of the Scacc. 1799.
poffefsions of the cistertian 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 such a quantity of interest, as would support that privilege; that, to entitle the lands to that exemption, the person occupying them must be the owner of the inheritance; he must have the same estate in him, which the monastery had. That, in the case of Wilson v. Redman, Hard. 174., the court held, that tenant for life or years was not within the statute ; but that tenant in tail, who had an estate of inheritance, was discharged 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 á settlement is not. It was said, that the “ tenant must hold the lands as the monastery held " them, else the privilege cannot attach. But it is im
possible that the lands can now be holden precisely “ in the same manner as they were holden by the mo“ nastery; the monastery had them to them and their " fucceffors, but now a man has them to him and his " heirs. But a fee simple may be divided into por“ tions, into different estates for life, in tail, and re“ mainder in fee. Where will be the difficulty to say, “ that the tenants of each portion shall have the benefit
as they succeed? The case of Wilson v. Redman has “ been cited; but, from an extract from the answer " in that case, which I have been furnished with, the “ parties there appear to have had a fee fimple ; and " therefore that not being a case in which it was ng
« cessary cessary to decide the point, it cannot be considered “ of any authority. I confess, I cannot see any
reason or why a tenant for life should be excluded from the “ benefit, any more than a tenant in tail, who, it is
agreed, is exempt: there seems to be no reason, why all the component parts of the estate should
not be exempt as they severally come into pof« feffion."
The court decreed unanimously, that the tenant for life was exempt, and dismissed the bill as against him, but without costs.
$ 89. These are the only grounds, on which a prea scription 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; with out sewing the reason of it. And that the presumption arising from a constant non-payment of tithes, will not be sufficient, unless the tenant can shew either that the lands were parcel of the possessions of one of the privileged religious orders, or that a real composi'tion had been made, by which the tithes were released.
S 90. It appears also to have been formerly held, Whether that a prescription de non decimando could not be good against
a Lay Impropleaded against a lay impropriator without shewing the priator.
Bury v. Evana, ground of exemption; but this doctrine has been Com. R.643. doubted in some modern cases.
S 91. A bill
Fanshaw v. More, Gwill. 780. 17 Geo. 2.
$91. A bill was brought in the exchequer by a lay impropriator, for tithe of hay and potatoes. Thé defence
was, that no tithe had ever been paid for the land, nor any modus or composition. It was said for the defendant that the reason, why a layman should not prescribe in non decimando, was founded on prina ciples, which did not hold since tithes were lay inhe. ritances. That now, from length of time and possession, there was the same reason to presume a grant from the lay impropriator, in this case, as in cases of other inheritances. That this was not used as a prescription; but as an evidence of right, and to include a presumption of a grant. That, before laymen were capable of tithes, an exemption was not sufficient to arise from non-payment of tithes only, but since, it is quite otherwise ; and possession 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 spiritual one. That it had been said that the statute of Henry 8. which made tithes lay inheritances, had altered the case; but that a prescription from that time would not be good; and consequently that statute 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 lost, 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 same opinion.
Baron Reynolds doubted.
Baron Clarke said, he knew no case, which deserved more consideration: for, though the authorities against such a prescription were very great, yet the reason of them grew
weaker every day. Before the reformation, all tithes were ecclesiastical ; 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 persons had purchased discharges for their particular lands; yet, if those grants were lost by the common fate of things, those persons must lose 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, should weaken this. It seemed very extraordinary, that a 'layman Infra. night prescribe, upon a presumption of a grant, for a portion of tithes in the soil of another, even against the rector of the parish ; and yet could not prescribe for the tithes of his own lands, in the same 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; because great inconveniences and confusion would arise from overturning established rules of pro