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him to pay his Tythes, notwithstanding thi Toleration: nor only Tythes, but all othe Dues; for fo fays the Statute, viz. Nothin berein contained shall exempt any Perfons from paying Tythes, or any other Duties to th Church or Minifter: Therefore not from Offer ings due upon Churching Women; for if tho only who are actually Church'd muft pay, the the Church is a Lofer, by Womens being left to their Difcretion in this particular, as befor they were not.

Juftices of Peace that love the Church and Clergy, have great Opportunity given them o doing them right, by Stat. 7,8 W. III. c. 6. being an Act for the more eafy Recovery of fma Tythes: (which is perpetuated by an Act of He late Majefty.) Tho' Tythe only is mention' in the Title, yet in the Body of the Act, Obla tions, Offerings, &c. are provided for. An ad mirable Law, if well executed. See Appendi Numb. 9.

The like Remedy is to be used against Qua kers, for any fort of Church Duties not exceed ing 10l. and for any Term of Years paft, bu this laft is a Temporary Act, to continue elever Years from the making of it, which was, I W. III. This is made perpetual by 1 G. c. 8.

'Tis not neceffary that the Incumbent do de mand his Tythes or Satisfaction for them before he commence his Suit, except he proceed befor the Juftices of Peace. I have indeed heard, tha the last D. of the Arches and Vicar-General would not permit procefs for Tythes till a De mand was first made; but in this, I fuppofe, h Judginent was fingular. However, 'tis certain

fuc

fach Demand is not neceffary for him that fues in the Exchequer.

The Clergy of London can fue only before the Lord Mayor for their Tythes, &c. but if the Lord Mayor neglect, or refufe to do his Office, the Lord Chancellor, or Barons of the Exche quer are to interpofe; 22, 23 Car. II.

CHA P. XXV.

Of the feparate Rights of Parfon and Vicar. DE Fure Communi, all the Tythes and Profits

of the Church belong to the Parfon; what the Vicar claims, must be either by Endowment or Prefeription.

The Endowment is the Original Agreement betwixt the Monaftery, or other Religious Body to which the Church of old belong'd, and the Vicar; made by Confent or Appointment of the Bishop,and fometimes called theOrdination of the Vicarage. If that Religious Body be now in being, as all the old Cathedrals are; or if the Impropriation were, at the Diffolution of the Monaftery, given to any Cathedral or Collegiate Church that now is, the moft probable Place to find the Endowment of it, is in the Archives of that Church; if not, you may confult the Augmentation Office. But noft Endowments are now loft, at leaft to us, by being carried to Rome at the Diffolution of Monafteries.

1

And therefore if a Vicar cannot produce an Endowment, yet if he prove conftant Ufage, and Payments, that is fufficient. Watf. c. 39. P. 304, 305.

And if the Endowment do appear, and do not mention any Glebe, or Tythe belonging to the Vicar, yet if the Vicar by conftant Üfage hath enjoy'd them, he fhall not be concluded by their not being mention'd in the Endowment: For it fhall be prefum'd, that fome Compofition has been fince made, or that the Bishop, by his Power, has fince augmented the Vicarage. Watf Ibid. p. 305.

The Diftinction of great and finall Tythes, does no great Service in determining the Rights of Parfon and Vicar: For the Vicar, in moft Places, has fome great Tythes, as Hay, or Wood, and (perhaps) fome Portion of CornTythes; and on the other fide, the Parfon of ten has fome of thofe Reputed fmall Tythes; as Hops, Flax, and in fome parts of the Parish, and fometimes thro' the whole Parish, all manner of Tythes: Only, if the Parfon cannot prove that he, and his Predeceffors have, time out of mind, receiv'd any fmall Tythes, or the Tythe which is in difpute, it fhall, if it be a fmall Tythe, be prefumed to be the Vicar's: Or, if it do appear, that the Vicar be Endow'd with all fmall Tythes, then the Parfon can have no other Tythes but thofe of Corn, Hay, and Wood: For I do not find, that any others are by any Law reckon'd great Tythes.

Watfon indeed fays, that Hops in Kent, have ever been adjudged great Tythes, when planted in a large Quantity of Land ; but he ar

gues

ues against the Juftice of the thing; and to rove, that the Quantity alters not the Property, hews that a Field of forty Acres of Saffron, has een adjudged fmall Tythe, Ibid. 306. And I im farther affured, that Hops in Kent, have een adjudged fmall Tythes by the Barons of he Exchequer, whofe Decree was likewise afirmed by the House of Lords, 2do Annæ, And if finall Tythes be, by the Endowment, ranted to the Vicar, and the Parfon doth by Cutom or Prescription take the fame, yet the Vicar may recover his fmall Tythes at Common Law. For 'tis a fettled Rule, that the Parfon cannot refcribe against the Endowment: Ibid. p. 307. Altaragium, a Word frequently used in EnHowments, imports not only what is now call'd Offerings, but fometimes all fmall Tythes comonly paid to the Vicar: Watf. c. 39. p. 307. The Tythes of Clover-grafs, or fuch like, fhall o to him that hath Tythes of Hay: Ib.p.307. Woad, Saffron, Wield, are all fmall Tythes, nd go to the Vicar, if he, by Endowment, or refcription, have all the small Tythes: Watf bid. 306.

If only finall Tythes be mention'd in the Enowment or Compofition, and yet the Vicar ave time out of Mind, had Tythe-Wood, it all continue to the Vicar, tho' Wood be comonly accounted a great Tythe: Watf. c. 39.

305.

If a Vicar have ufed, time out of Mind, to ve all Tythes, except Tythe of Corn, and terwards Rape-feed is fown in the fame Pah, he fhall have Tythe of that too: Watf id. 306.

No Tythe of Glebe-Land fhall be paid of com mon Right by the Parfon to the Vicar, or by th Vicar to the Parfon; for Ecclefia non folvit E clefiæ, (but then it must be ancient Glebe,) Wat

47. p. 404. and yet by fpecial Cuftom it ma be otherwife, and Ty the may be paid by eithe to the other: See Godol. c. 33. G. And if th Vicar let out his Glebe, it fhall pay great Tyth to the Parfon, and if the Parfon let out his Glebe it fhall pay Vicarage Tythes to the Vicar. Ibi

By this laft Cafe, it fhould appear, that th Glebe of thofe impropriated Parfonages, the Fe of which is in any Ecclefiaftical Perfon, or Body ought to pay Tythe to the Vicar, when leafe out, as all or moft fuch Parfonages are.

When there is a Controverfy between the Pa fon and Vicar, the moft proper Court is the Sp ritual; and in this Cafe, 'tis allow'd, on a hands, that no Prohibition lies; and fometime there are Terriers in the Ecclefiaftical Cour which are Accounts of the Glebe, and Tythes gi ven in to thofe Courts of old time by the Church Wardens and other Parishioners, and thefe A counts are often very just as to the Vicar's Right and may do him good Service, and are of greate Authority in thefe Courts, than in the Tempora ones, where Courts Ecclefiaftical are not allow to be Courts of Record; and yet even in Tempo ral Courts thefe Terriers are of fome Weight when duly attefted by the Regifter: But th Misfortune is, that when a Clergyman has car ried his Caufe in the Bishop's Court, he is la ble to be appeal'd to the Arches, &c. or th Parfon may again begin his Suit against the Vica de novo, in the Temporal Court; Yet Lay

Pa