Green v Balser
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1596 |
| Date | 01 January 1596 |
| Court | Court of the King's Bench |
English Reports Citation: 76 E.R. 519
IN THE KING'S BENCH.
See Gunnestad v. Price, 1875, L. R. 10 Ex. 70.
S. C. cited Mo. 423. 534. 1 Jones, 4. Co. Lit. 301. S. C. cited acc. Pollexf. 9. 1 Ld. Raym. 321. 3 Burr. 1277. 1 Maul. & S. 98. Ambl. 291. 1 Inst. 132. a. (1). Iii. 387. (22). 1 Bl. Com. 87. 132. 2 Bl. Com. 121. 3 Cru. Dig. 47. Bull. N. P. 190. b. Watk. Gilb. Ten. 454. Vin. Abr. Dismes. Z. a. pl. 5. Grants, H. 13. pl. 46. Merger, E. pl. 2. Surrender, F. pl. 13, Voucher, R. pl. 3. Com. Dig. Dismes. E. 7. E. 9. Monastery, A. Bac. Abr. Tythes, X.
[46 a] the archbishop of canterbury's case. Trin. 38 Eliz. In the King's Bench. 1596. green v. balser. [See Gunnestad v. Price, 1875, L. R. 10 Ex. 70.] S. C. cited Mo. 423. 534. 1 Jones, 4. Co. Lit. 301. [S. C. cited ace. Pollexf. 9. 1 Ld. Raym. 321. 3 Burr. 1277. 1 Maul. & S. 98. Ambl. 291. 1 Inst. 132. a. (1). iii. 387. (22). 1 Bl. Com. 87. 132. 2 Bl. Com. 121. 3 Cru. Dig. 47. Bull. N. P. 190. b. Watk. Gilb. Ten. 454. Yin. Abr. Dismes. Z. a. pi. 5. Grants, H. 13. pi. 46. Merger, E. pi. 2. Surrender, F. pi. 13, Voucher, E. pi. 3. Com. Dig. Dismes. E. 7. E. 9. Monastery, A. Bac. Abr. Tythes, X.] The statute 31 H. 8. gave all colleges dissolved, &c. to the Crown, with a clause, that the King and his grantees should hold them discharged of tithes, as the abbots held the same at the time of the dissolution ; afterwards by the statute 1 Edw. 6. all colleges whatsoever, were given to the Crown, but in this statute there is no clause of discharge of tithes. Upon a prohibition to a suit in the Spiritual Court for tithes; held 1st, That the King had the lands of the college by the statute 1 Edw. 6. 2nd, That the lands which were vested in the Crown by the 1 E. 6. are not discharged from the payment of tithes by the 31 H. 8. 3rd, That a general allegation of a discharge of tithes by unity of possession was not sufficient. But in (a) Cro. El. 599. (b) Cr. El. 293. 763. [2 Ves. jun. 627. and see the books cited in n. (t) sup.] (a 1) Ace. Piggott v. Hearn, Piggott v. Sympson, Cro. Eliz. 599. 763. Strutt v. Baker, 2 Ves. jun. 627. (Ea) (1) But note, tithes in England are now generally confessed to be due only jure humano. See Bohun's Law of Tithes, p. 2, 3. 12, 13, &c. And quaere how tithes could be sued for in the Spiritual Court, when there was no such Court in being? See the case of Sydowne v. Holmes, very well reported by Sir William Jones, fol. 368. for the several discharges of tithes, by the common law and statute; and see Bunbury's Reports in the table, tit. Tithes. Note to the former editions. [See ante p. 44 a. n. (m). 2 Bl. Com. 25. 30. Toll. Tith. 1, 2.] (Ea) (b 1) That is, before the stat. 2 & 3 Edw. 6. c. 7. Sup. p. 44 a. n. (n). (ED.) (c 1) Ace. Com. Dig. Appendant, C. (En.) 520 ARCHBISHOP OF CANTERBURY'S CASE 2 CO. MP. 48 b. the case of lands which came to the Grown by the 31 H. 8. the King, or his patentee, may allege generally that the lands were held by the abbots discharged of the payment of tithes, at the time of the dissolution (t). 4th, That ecclesiastical corporations, not being religious houses, are not within the statute 31 H. 8. c. 13. 5th, That though the statute 1 E. 6. enacts " that the King shall have the lands in as ample manner, as the colleges, &c. yet that clause does not extend to the tithes, which are collateral to the land. The general words of a statute beginning with inferior persons, &c. do not extend to superior persons. The word "late "in the discharging clause of the 31 H. 8,, construed according to the body of the Act, extends to such religious houses as came to the Crown by that Act, whether before or after it. But the clause extends only to such religious houses as were vested in the Crown by the 31 H. 8.(J). If the farmers of the lands paid tithes before the dissolution, the presumption of a discharge by unity fails. But if the lands were always in the occupation of the abbots, or in lease, and no tithes paid by the farmer, they are discharged from the payment of tithes. In a prohibition in the King's Bench, between Green and Balser; the case was, there was a religious college in Maidstone, to which the Rectory of Maidstone was impropriate. And the said college had divers lands and tenements within the said parish of Maidstone, and all was given to the King by the statute of 1 E. 6. (a). And afterwards the rectory was conveyed to the Bishop of Canterbury, and the lands, parcel of the possessions of the said college, were conveyed to the Lord Cobham; and now the farmer of the Lord Cobham brought a prohibition against Balser, farmer of the said rectory, to Whitgift, Archbishop of Canterbury, and in his prohibition he alleged the branch of the statute of 31 H. B. concerning discharge of tithes (b), and shewed, that the master of the said college was seised of the said lands, and of the said rectory, simul & semel, as well at the time of the making of the Act of 31 H. 8. as at the making of the said Act of 1 E. 6., and held them discharged of tithes ; and shewed the said Act of 1 E. 6., by which the said college was given to King E. 6.; and thereupon the defendant did demur in law. And in this case divers questions were moved. 1st, Whether the said college came to the King as well by the statute of 31 H. 8., as by the statute of 1 E. 6.; for if this college came to the King by the statute of 31 H. 8. then without question the said branch of the said Act concerning the discharge of tithes, extends to it: and it was objected by the plaintiff's counsel, that the words of the said Act are general, soil, "that all monasteries, &c. colleges, &c. which hereafter shall happen to be dissolved, &c. or by any other [46 b] means come to the King's Highness, shall be vested, deemed, and judged by authority of this Parliament in the very actual and real possession of the King, &e." And when this college came to the King by the stat. 1 E. 6. it came to the King within these words of the Act "by any means." But it was answered by the defendant's counsel, and resolved by the Court, that that could not be for (a) several reasons : 1. When the statute speaks of dissolution, renouncing, relinquishing, forfeiture, giving up, &c. which are (b) inferior means, by which such religious houses came to the King, then the said latter words " or by any other means " cannot be intended of (t) Cmtra as to this position, Hob. 300. Toll. Tith. 2nd edit. 174. Bac. Abr. Tythes, W. See the notes and references infra.] (I) [Contra-, 1 Jon. 187.] (A) On the construction of this statute, see Adams and Lambert's case, post 4 Co. 104, and the notes there. (ED.) (B) Ante p. 44 a. n. (p). (ED.) (a) Hob. 310. (b) Cro. Jac. 58. Raym. 62. Hard. 155. 442. 2 Inst. 137. 457. 478. 629. 1 Leon. 277. Dyer, 109. pi. 38. Godb. 395. Latch. 89. 3 Co. 82. b. 9 Co. 117, 118...
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