No. VI. 2&3 Edw. VI. c. 13. Tithe of cattle feeding in a waste where due proof thereof made before the spiritual judge, or any other judge to whom heretofore he might have made complaint, the party so carrying away withdrawing letting or stopping shall pay the double value of the tenth or tithe so taken lost withdrawn or carried away, over and besides the costs charges and expences of the suit in the same; the same to be recovered before the ecclesiastical judge according to the King's ecclesiastical laws. JII. And be it further enacted by the authority aforesaid, That all and every person which hath or shall have any beasts or other cattle titheable going feeding or depasturing in any waste or common ground, whereof the parish is not the parish is not certainly known, shall pay their tithes for the increase of the said cattle so going in the said waste or common, to the parson vicar proprietor portionary owner or other their farmers or deputies of the parish hamlet town or other place where the owner of the said cattle inhabiteth or dwelleth. known. Lands discharg- 13 Co. 42. IV. Provided always, and be it enacted by the authority aforesaid, That no person shall be sued or otherwise compelled to yield give or pay any manner of tithes for any manors lands tenements or hereditaments, which by the laws and statutes of this realm, or by any privilege or prescription, (5) are not chargeable with the payment of any such tithes, or that be discharged by any composition real. 32 H. 8, c. 7. § 5. Co. pl. 452, 454, 457. 2 Roll. 479. barren heath or waste ground. Dyer 170. V. Provided always, and be it enacted by the authority aforesaid, That all such barren heath or waste ground, other than such as be discharged for the payment of tithes by Act of Parliament, which before this time have lain barren and paid no tythes by reason of the said barrenness, and now be or hereafter shall be improved and converted into arable ground or meadow, shall from henceforth, after the end and term of seven years next Cro. Car. 208. after such improvement fully ended and determined, pay tithe for the corn and hay growing upon the same; any thing in this Act to the contrary in any wise notwithstanding. (6) Cro. El. 475. (5) A prescription, exempting from the penalties of this Act, must be good in law; and the validity of the custom is proper to be tried in an action on the Statute.-Phillips v. Davies, 8 East, 178. (6) It is agreed that the Statute gives an exemption with respect to the land here described for the term of seven years. For the exposition of this clause, see 2 Inst. 656. Stockwell v. Terry, 1 Vesey, 115, and the late case of Warwick v. Collins, 2 M. and S. 340. It is settled that land is not entitled to the privilege as barren, on account of the expence of clearing from wood draining inclosing or recovery from the sea, and that the exemption must be founded upon the natural inaptitude of the soil for the production of a crop without an extraordinary expence in manuring. The proper test of barrenness is, whether the land requires extraordinary expense either in manure or labour, to bring it into a proper state of culture. Lord Selsea v. Powell, 6 Taunt. 297. In Hutchins . Maughan, cited by Eyre, C. B. in Jones . Le David, 4 Gwill. 1594. Land which from its exposed situation would not grow corn without the expence of erecting stone walls to protect it from the severity of the climate, was held to be exempt. The following extracts from Lord Ellenborough's judgment in Warwick v. Collins, seem to comprise the substance of the law upon the subject :--There are two causes of unproductiveness in land, one arising from the mere neglect of cultivation; the other, because the land is in its nature infit for and indisposed to receive and return the benefits of cultivation. The latter only is protected; all land which has not been already cultivated by the plow is, to use Lord Coke's words, (2 Inst 656) se far not apt for tillage. Something must necessarily be done; some labour bestowed; some expence incurred in all cases to conquer this inaptitude. Then comes the question on the limitation in the Statute, whether it has paid no tithes by reason of barrenness," (on which the comments made on the Statute and the cases have principally turned) in other words, " whether it be suapte Naturá sterilis," and this all agree must be shewn to entitle it to exemption. It seems neither reasonable nor analogous to the common course of husbandry, to confine the inaptitude for tillage to such causes only as hinder the mere use and passage of the plow over it, such as the incumbrance of wood, of water, or furze and whin; there is an ulterior inaptitude to these in all cases of new land, arising from the rankness and foulness of the soil; and if I may use the expression, from its unsubdued condition. If the land only require the manure and cultivation ordinarily necessary to bring it into an apt state of tillage, it is not suúpte Naturâ sterilis. Sterility er vi termini, imports an ungrateful soil: a sort of natural and constitutional infecundity, resisting the ordinary means properly applied to render it otherwise. The proper enquiry seems to be, Whether the land was of such a nature as to require extraordinary expence either in manure or labour to bring it into a proper state of cultivation. VI. Provided always, and be it enacted by the authority aforesaid, That if any such barren waste or heath ground hath before this time been charged with the payment of any tithes, and that the same be hereafter improved or converted into arable ground or meadow, that then the owner or owners thereof shall, during seven years next following from and after the same improvement, pay such kind of tithe as was paid for the same before the said improvement; any thing in this Act to the contrary in any wise notwithstanding. No. VI. 2&3 Edw. VI. c. 13. VII. And be it also further enacted by the authority aforesaid, That Who shall pay every person exercising merchandises bargaining and selling clothing their personal handicraft or other art or faculty, being such kind of persons and in such Tithes. places as heretofore within these forty years have accustomably used to pay such personal tithes, or of right ought to pay, (other than such as been common day-labourers) shall yearly at or before the feast of Easter pay for his personal tithes the tenth part of his clear gains, his charges and expences, according to his estate condition or degree, to be therein abated allowed and deducted. VIII. Provided always, and be it enacted, That in all such places where Handicraftshandicrafts-men have used to pay their tythes within these forty years, men having the same custom of payment of tythes to be observed and to continue, used to pay any thing in this Act to the contrary notwithstanding. Tithes. The Ordinary IX. Ard be it also enacted by the authority aforesaid, That if any person refuse to pay his personal tithes in form aforesaid, that then it shall may examine be lawful to the ordinary of the same diocese where the party that so him that reought to pay the said tithes is dwelling, to call the same party before him, fuses to pay and by his discretion to examine him by all lawful and reasonable means, his Tithe. other than by the parties own corporal oath, concerning the true payment of the said personal tithes. X. Provided always, and be it enacted by the authority aforesaid, That Payment of all and every person and persons which by the laws or customs of this Offerings. realm ought to make or pay their offerings, shall yearly from henceforth well and truly content and pay his or their offerings to the parson vicar proprietor, or their deputies or farmers, of the parish or parishes where it shall fortune or happen him or them to dwell or abide; and that at such four offering-days as at any time heretofore within the space of four years last past hath been used and accustomed for the payment of the same, and in default thereof to pay for their said offerings at Easter then next following. XI. Provided also, and be it enacted by the authority aforesaid, That Tithe of Fish. this Act or any thing therein contained, shall not extend to any parish which stands upon and towards the sea-coasts, the commodities and occupying whereof consisteth chiefly in fishing, and have by reason thereof used to satisfy their tithes by fish; but that all and every such parish and parishes shall hereafter pay their tithes according to the laudable customs, as they have heretofore of ancient time within these forty years used and accustomed, and shall pay their offerings as is aforesaid. XII. Provided always, and be it enacted by the authority aforesaid, Payment of That this Act or any thing therein contained, shall not extend in any wise Tithe by to the inhabitants of the city of London and Canterbury, and the suburbs houses. of the same, ne to any other town or place that hath used to pay their tithes Latch. 89. by their houses, otherwise than they ought or should have done before the making of this Act; any thing contained in this Act to the contrary in any wise notwithstanding. XIII. And be it further enacted by authority aforesaid, That if any Suits for withperson do subtract or withdraw any manner of tithes obventions profits holding of commodities or other duties beforementioned, or any part of them, contrary Tithes shall be to the true meaning of this Act, or of any other Act heretofore made, that in the Ecclethen the party so subtracting or withdrawing the saine, may or shall be siastical Court. convented and sued in the King's ecclesiastical court, by the party from Bulst. 67. whom the same shall be subtracted or withdrawn, to the intent the King's judge ecclesiastical shall and may then and there hear and determine the same, according to the King's ecclesiastical laws; and that it shall not be lawful unto the parson vicar proprietor owner or other, their farmers or See 4 Bur. 2095. No. VI. 2 & 3 c. 13. tion of the deputies, contrary to this Act, to convent or sue such withholder of tythes obventions and other duties aforesaid, before any other judge than ecclesiastical; and if any Archbishop Bishop Chancellor or other judge eccleEdw. VI. siastical, give any sentence in the aforesaid causes of tithes obventions profits emoluments and other duties aforesaid, or in any of them, (and no appeal ne prohibition hanging,) and the party condemned do not obey the Excommunica- said sentence, that then it shall be lawful to every such judge ecclesiastical to excommunicate the said party so as afore condemned and disobeying; in the which sentence of excommunication, if the said party excommunicate wilfully stand and endure stili excommunicate by the space of forty days next after, upon denunciation and publication thereof in the parish church, or the place or parish where the party so excommunicate is dwelling or most abiding, the said judge ecclesiastical may then at his pleasure signify to the King in his Court of Chancery, of the state and condition of the said party so excommunicate, and thereupon to require process de excommunicato capiendo to be awarded against every such person as hath been so excommunicate. party condemn ed. A copy of the delivered to the 1 Leon. 286. 2 Leon. 212. XIV. Be it further enacted by the authority aforesaid, That if any party at any time hereafter, for any matter or cause before rehearsed limited or appointed by this Act to be sued or determined in the King's ecclesiastical court, (1) or before the ecclesiastical judge, do sue for any prohibition in any of the King's courts where prohibitions before this time have been used to be granted, that then in every such case the same party, before any prohibition shall be granted to hini or them, shall bring and deliver to the hands of some of the justices or judges of the same court where such party demandeth the prohibition, the very true copy of the Jibel depending in the ecclesiastical court, concerning the matter wherefore the party demandeth the prohibition, subscribed or marked with the hand of the same party, and under the copy of the said libel shall be written the suggestion wherefore the party so demandeth the said prohibi tion; and in case the said suggestion, by two honest and sufficient (2) witnesses at the least, be not proved true (3) in the court (4) where the said prohibition shall be so granted, (5) within six months (6) next following a suggestion. Carthew, 463. Hetley, 147. 1 Roll. 55. 2 Roll. 125. Moor, 573, pl. 788. Dyer 242. Cro. El. 736. granted for de- (1) All manner of Tithes and Offerings.-The Act extends to small tithes ; Foy v. Lister, 2 Salk. 554; 2 Ld. Raym. 1172. (2) Persons convicted of Felony are not sufficient; Brown v. Crashaw, 2 Bulstr. 154. Secus, as to parishioners or interested witnesses; Sharp v. Hobart,, 4 Bac. Abr. 246. In Robson's case, 1 Ventr. 107, it is said to be sufficient, where the suggestion consists of two parts, to produce one witness to each. (3) The proof must be made in all cases where matter suggested is mere matter of fact, as a modus; Gippe's case, Godb. 245; Pool v. Gardner, Carth. 463; of the place being exempted as barren ground; Stroud v. Hoskins, Cro. Car. 208; Thomas v. Gifford, 2 Str. 92; that the Lord had from time immemorial received tithes within the manor, for which he had maintained a chaplain; and the proof did not shew the maintaining a chaplain; Boocher v. Rogers, 1 Rol. Rep. 2; a discharge by arbitrament; Reynolls v. Hayes, 1 Ro. Rep. 55; a discharge under 31 H. 8. c. 38; Congley v. Hale, 2 Ro. Rep. 125. Proof may be as to belief; Bennett v. Snell, Palm. 377; Noy, 44; Littl. 155. It is sufficient if the suggestion is proved true in substance, although not proved strictly as laid; or where the suggestion was, that the parson had 20 acres of pasture and 20 acres of wood in lieu of tithes, and it was proved as to the pasture and not as to the wood; Andrew v. Pigot, Cro. Eliz. 736, Mo. 911. So if the modus is laid on the inhabitants of D. and proved to be paid by the plaintiff; Anon. Noy. 28. So where there is a proof of a modus differing in amount; Moore 911. Dyer 171, in Marg. Hetl. 100. No proof is necessary where the suggestion is in the negative; as, that the parsonage is not ap propriate-that the Lands are not in the parish; or where the suggestion is of matter of law; 2 Inst. 662; nor of a composition or agreement with the parson; Woodward v. Bugg, 2 Leon, 29; 3 Leon. 257; Anon. Lit. 297; Tanner v. Small, Yelv. 102: nor of a cause of suggestion arising upon a subse quent statute; Wiggon v. Arscott, 2 Leon. 213; nor where two matters are suggested, one of which requires costs, the other not; as a modus and an agreement; semble Cobb v. Hunt, Yelv. 119; Brownlow 98; in which it was held, that the party in such case is not entitled to double costs. (4) The proof may be made before one of the Judges in Vacation, and recorded in Term ; Skinner's case, Latch. 30. And see 15 East, 576. (5) Where the party is put to declare in prohibition and is nonsuited, the defendant is not entitled to double costs under this Act, but only to single costs under 8 and 9 W. III. c. 11; Trask v. French, 15 E. 574. (6) Calendar months-being a matter of ec clesiastical law; Lit. 19. Hob. 179; 2 Mod. 58. after the said prohibition shall be so granted and awarded, that then the party that is letted or hindred of his or their suit in the ecclesiastical court by such prohibition, shall upon his or their request and suit, without delay have a consultation granted (7) in the same case in the court where the said prohibition was granted; and shall also recover double costs (8) and damages against the party that so pursued the said prohibition, the said costs and damages to be assigned or assessed by the court where the said consultation shall be so granted; (9) for which costs and damages the party to whom they shall be awarded may have an action of debt, (10) by bill plaint or information, in any of the King's courts of record, wherein the defendant shall not wage his or their law, nor have any essoign or protection allowed or admitted. No. VI. 2 & 3 Edw. VI. c. 13. XV. Provided always, and be it enacted by the authority aforesaid, Of what things That this Act, or any thing therein contained, shall not extend to give a Judge Eccleany minister or judge ecclesiastical any jurisdiction to hold plea of any siastical shall matter cause or thing, being contrary or repugnant to or against the hold Plea. effect intent or meaning of the statute of Westminster second, the fifth 13 Ed. 1. st. 1, chapter, the statutes of Articuli cleri, Circumspecte agatis Silva cadua, the C. 5. treatise De Regia prohibitione, ne against the statute of Anno primo Ed- 9 Ed. 2. st. 1, wardi tertii, the tenth chapter, or any of them, ne yet hold plea in any 1 Ed. 3. st. 2, matter whereof the King's court of right ought to have jurisdiction; any c. 11. thing herein contained to the contrary in any wise notwithstanding. 18 Ed. 3. st. 3, c. 1, 2, 5. c. 7. 45 Ed. 3. c. 3. 2 Inst. 633. XVI. Provided nevertheless, where heretofore such a custom hath been in many parts of Wales, that of such chattel and other goods as hath been given with the marriage of any person, their tithes have been exacted and levied by the parsons and curates in those parts; which custom being dissonant from any part of this realm, as it seemed when the said country of Wales was through civil dissention unculted, for want of other sufficient profits that might otherwise grow to the curates and ministers there, to have been for that time tolerable: so now the country being well manured and husbanded, and the tithe is duly paid there of corn hay wool and cheese, and of other increase of all manner of cattle, as it is commonly in all other parts of this realm, the same custom seems to be grievous and unreasonable, especially where the benefices are else sufficient for the finding of the said ministers and curates: That it be therefore enacted No Tithes of by the authority aforesaid, That from and after the first day of May Marriage Goods next coming no such tithes of marriage goods be exacted or required shall be paid of any person within the said dominion of Wales or marches of the same; in Wales, &c. any thing in this Act contained, or any other Act custom or prescription had or made to the contrary hereof notwithstanding. [Cok.Lit. 159. a.] It was held Mo. 573, that the six months must be in Term time; but this has been since overruled, and the time runs from the teste of the writ of prohibition; Foy v. Lister, 2 Salk. 554; 2 Ld. Raym. 1171. When the declaration was by rule of Court amended, to make it conformable to the proceedings in the Spiritual Court, it was ruled that the time should be computed from the amendment; Malton v. Acklam, Barnes 428. If the proof be defective it may be amended within the six months, but not after; Stiddar v. Tilar, Lit. 155. (7) A consultation for not proving the suggestion is not, like a consultation on the merits, a bar to a second prohibition. See Carth. 463; Cro. Car. 208; Trask v. French, 15 East, 574. (8) Double costs are only given for not proving the suggestion, not for variance between the suggestion and the libel; Hulton v. Barnes, Yelv. 79: and to obtain such costs a consultation must be awarded; Watkinson v. Pacy, Latch. 140; Hey 81. Whether the Act applies to prohibition by an administrated in a suit for tithes, due by the intestate; Dubit, Creake v. Pitcairne, Barnes 129; Cas. Prac. C. B. 157; Prac. Reg. 118. (9) The Court do not make the payment of double costs, &c. part of the rule they follow of course from the consultation being awarded; Foy v. Lister, 2 Ld. Raym. 1172. (10) In such action the Plaintiff is entitled to costs; 1 Rol. Abr. 516. l. 37. [No. VII. ] 7 & 8 William III. c. 6.—An Act for the more easy Recovery of small Tithes. FOR the more easy and effectual recovery of small tithes, and the value 7 & 8 W. III. of them, where the same shall be unduly substracted and detained, C. 6. No. VII. 7&8 William III. c. 6. Continued further for 7 years by 10 & 1! W. III. c. 15. and perpetuated by 3 & 4 Anne. c. 18. sec. 1. Vin. V. 8, 564. not paid in 20 18 Ed. 3. st. 3, c. 7. 45 Ed. 3. c. 3. 5 H. 4. c. 11. who may summon the Person complained of, and on default of appearance determine the where the same do not amount to above the yearly value of forty shillings from any one person; Be it enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled, and by the authority of the same, That all and every person and persons shall henceforth well and truly set out and pay all and singular the tithes commonly called Small Tithes, and compositions and agreements for the Same, with all offerings oblations and obventions, to the several rectors vicars and other persons to whom they are or shall be due, in their several parishes within this kingdom of England, dominion of Wales, and town of Berwick upon Tweed, according to the rights customs and prescriptions commonly used within the said parishes respectively; and if any person or persons shall hereafter subtract or withdraw, or any ways fail in the true payment of such small tithes offerings oblations obventions or compositions as aforesaid, by the space of twenty days at most after demani thereof, then it shall and may be lawful for the person or persons to whom the same shall be due, to make his or their complaint in writing unto two or more of his Majesty's justices of the peace within that county riding city town corporate place or division where the same shall grow due; neither of which justices of peace is to be patron of the church or chapel whence the said tithes do or shall arise, nor any ways interested in such tythes offerings oblations obventions or compositions aforesaid. II. And be it further enacted by the authority aforesaid, That if hereafter any suit or complaint shall be brought to two or more justices of the peace as aforesaid, concerning small tithes offerings oblations obventions or compositions as aforesaid, the said justices are hereby authorised and required to summon, in writing under their hands and seals, by reasonable warning, every such person or persons against whom any complaint shall be made as aforesaid; and after his or their appearance, or upon default of their appearance, the said warning or summons being proved before them upon oath, the said justices of peace, or any two or more of them, shall proceed to hear and determine the said complaint, and upon the proofs evidences and testimonies produced before them, Complaint, &c. shall, in writing under their hands and seals, adjudge the case and give such reasonable allowance and compensation for such titles oblations and compositions so subtracted or withheld, as they shall judge to be just and reasonable, and also such costs and charges, not exceeding ten shillings, as upon the merits of the cause shall appear just. after notice, the Constables, &c. may distrain. On refusal to III. And be it further enacted, That if any person or persons shall pay in 10 days refuse or neglect, by the space of ten days after notice given, to pay or satisfy any such sum of money, as upon such complaint and proceeding shall by two or more justices of the peace be adjudged as aforesaid, in every such case the constables and churchwardens of the said parish, or. one of them, shall, by warrant under the hands and seals of the said justices to them directed, distrain the goods and chattels of the party so refusing or neglecting as aforesaid, and after detaining them by the space of three days, in case the said sum so adjudged to be paid, together with reasonable charges for making and detaining the said distress, be not tendered or paid by the said party in the mean time, shall and may make publick sale of the same, and pay to the party complaining, so much of the money arising by such sale as may satisfy the said sum so adjudged, retaining to themselves such reasonable charges for making and keeping the said distress, as the said justice shall think fit, and shall render the overplus (if any be) to the owner. Justices to administer an Oath. Not to extend IV. Provided always, and be it enacted, That it shall and may be lawful for all justices of peace, in the examination of all matters offered to them by this Act, to administer an oath or oaths to any witness or witnesses, where the same shall be necessary for their information and for the better discovery of the truth. V. Provided also, and be it enacted, That this Act, or any thing herein to London, &c. contained, shall not extend to any tithes oblations payments or obventions within the city of London or liberties thereof, nor to any other city or |