Reports of Cases Argued and Determined on the Equity Side of the Court of Exchequer; Before the Right Honourable Sir Richard Richards, Knight, Lord Chief Baron, During the Years 1817, 1818, 1819, and 1820
This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1824 edition. Excerpt: ...the existence of the composition real, or, as it has been more properly described, grant; and we 1818. must, therefore, consider it as proved, that it existed in the 17 Joe.I.; and that the party who claimed under it, took the tithes at the time it was returned. RlDLET V. Storev. Now, with respect to the law, as it applies to this subject, there is no doubt that, at common law, a layman was not capable of the pernancy of tithes, except in special cases, which special cases it is not necessary to mention now: but I take it to be equally clear that a layman was capable of taking a discharge of tithes by means of a composition made by the rector or vicar, with the consent of the patron and ordinary, so that although he could not claim tithes in pernancy, he might claim to hold his land discharged from them. Many cases were cited in argument, in support of this proposition; and it is not necessary now to refer to them. This was the law before the 32 Hen. VIII.; so that although Thomas a Cramlington could not, under this contract, take the tithes in pernancy; yet the instrument, beyond all doubt, had a legal operation to discharge his land from the payment of them, but it gave him no power to recover tbem. The statute of 32 Hen. VIII. was (hen passed, which gave to a layman that which the common law refused him, namely, a right to sue for and recover his tithes. One of the great difficulties which occurred to laymen having tithes, arose from the circumstance of their having no remedy for them. The common law did not give any action for tithes; and the ecclesiastical courts never suffered a layman to sue for them, except in the cases which have been mentioned. The act of parliament, however, of 32 Hen. VIII. gave a layman a title to tithes in pernancy, ..
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