case the alderman and burgess OF bury saint edmund and Laurence wright  plaintiff vers lewis crying Euhan defendant in scacc prescription in non  decimand even against a lie impropriator be hold not good bunb S c a bill for  small tithe be bring by the plaintiff set forth that king James the first be  seize in fee of the rectory and vicarages impropriate of the parish of saint  mary and saint James in saint Edmund bury in the county of Suffolk and of all  tithe great and small belong to the say rectory and vicarages former part of  the possession of the monastery of bury saint Edmund in come Suffolk that be  so seize by letter patent date the saint of July James the king grant to the  alderman and burgess of bury saint Edmund and their successor inter all  Decimus of wheat garbar wool vitulor c all men of every sort Decimus dict  monastery spectan tam mayor how those inferior in rank and afterward by letter  patent date the that of September James the king grant to the say alderman and  burgess and their heir and successor inter all the rectory of saint mary and  saint James and the vicarages of the same church the advowson right of  patronage c ac all men of every sort Decimus tam mayor how those inferior in  rank praedial mix comens minute to the say church c speech monastery spectan  that by indenture date the d of April the alderman and burgess of bury make a  lease to the other plaintiff wright of all their tithe of corn and grain arise  within the say town of bury in the say parish of saint mary and saint James  for the term of eleven year and afterward take notice that by the say lease  the tithe of corn and grain only be demise and the small tithe in the say  parish by mistake be omit although they be intend to have be lease and the  plaintiff wright the lessee ought in conscience to enjoy they it be by a order  of Council enter in the councilbook of the corporation agree that a bill shall  be exhibit in the name of the corporation or wright or both for the recovery  of the say small tithe due from the defendant and other for land by they hold  in the say parish and on such recovery satisfaction shall be make for the same  to the plaintiff wright that the defendant Lewis Evans from the year to the  year hold several land within the say parish in the town of bury particular  acre part of a farm call Eldo farm or the old farm which farm for the great  part lie in the parish of Ruffham and only acre part of it lie in the parish  of saint comens er p mary which farm be parcel of the possession belong to the  monastery of bury saint Edmund in the county of Suffolk that the defendant  Evans likewise hold in the say parish of saint mary during the say year  several land call wood go contain about ninetyfour acre and other land contain  about thirtysix acre and other land about nine acre on which be arise yearly  great quantity of corn bay cloverseed turnip and other small tithe whereby the  say alderman and burgess or the say wright become entitle to demand the say  tithe and pray that the defendant may show cause why the defendant shall not  make satisfaction for the same to the say wright the say alderman and burgess  consent that he comens shall receive the same and that the plaintiff may have  such relief in the premise as the nature of their case in equity and good  conscience do require to this bill the defendant answer and admit that be have  hold the several land in the bill mention during the time charge particular  the say acre parcel of Eldo farm or old farm which be part of the possession  belong to the monastery of bury saint Edmund and the land call wood go and the  say thirtysix acre and dine acre in the parish of saint mary and believe that  the several kind of tithe and quantity mention in the bill may be arise in the  say several year but insist that he have pay and satisfy to the plaintiff  wright for all the tithe of corn and grain grow in the say year but that no  small tithe be ever pay or demand for the say land and do insist that as no  small tithe or any satisfaction or composition for the same be ever pay by or  demand from the defendant or any person under who he claim in respect of the  say land or from any other owner or occupier of land in the say town of bury  after such a length of time and so long and enjoyment of land free and  discharge from small tithe a legal dischargers to be presume and it must be  necessary intend that the small tithe by due course of law be alien or release  to the owner of the say land by the person entitle to the inheritance of the  say small tithe though the conveyance or release or other legal discharge be  lose or destroy especial since the small tithe in the say parish of saint mary  be of equal value with the great tithe arise there this cause come on to be  hear on Thursday the that of may the plaintiff produce the say letter patent  James the lease and order of Council and by deposition of Charles uvoodward  and Francis wright all which be read prove that or year since they hold land  for many year in bury or collect the tithe there and that small tithe be pay  by several person in the say parish of saint mary and saint James and they  have beard their father who comens hold land year there before their have land  there and one Richard copsy decease declare that small tithe in the say parish  ought to be pay or compound for on the part of the defendant it be prove by  the deposition of several witness that or year before they gather corn in the  say parish and never know any small tithe pay or demand on this case it be  first insist by Mr Bootle and Mr Starkey of counsel with the defendant that  the bill be not proper which demand satisfaction for small tithe to the  plaintiff wright who have no lease of or title to they say non allocatur for  the plaintiff show the title of the corporation to great and small tithe the  lease of the great tithe to the plaintiff wright and their intention that he  shall have the small tithe and then conclude that the corporation or he be  entitle to such small tithe and then pray that the defendant may show cause  why he shall not make satisfaction to he for the small tithe arise on his land  the corporation consent that he shall have they and they pray general relief  as the nature of the case require so that the court may consistent with the  prayer of the bill direct the defendant to account to the plaintiff wright for  his great tithe not satisfy and to account to the corporation for the small  tithe which be not comprehend in their lease to he and to which therefore the  corporation continue entitle notwithstanding it be pray that the defendant  shall show cause why he shall not make satisfaction for they to wright they  consent that he shall have that satisfaction then it be insist by the counsel  for the defendant that since there be no proof of any small tithe be ever pay  by the defendant although it be prove comens er p by Richard Micklefield that  S have be demand per acre for the small tithe of the land which he hold part  of Eldo or old farm and he offer d per acre but afterward he refuse to pay it  and that it be prove by several witness that comens they never know small  tithe pay for and that the small tithe be more in value than the great tithe  in that parish it be insist that in the case of a lie impropriator the  defendant may say in bar of the demand of tithe that no tithe have ever be pay  or demand for these land it be true in the case of a rector or spiritual  person no one can prescribe against he in a non decimand but otherwise it be  in the case of a lie impropriator and the reason give in the bishop of  Winchester case   that if such a prescription shall hold in the case of a  spiritual person a jury of lie gentleman will not be equal in the trial of  such prescription fail in the case of lie impropriators and although there be  no express determination in the point by this court yet many judge be of that  opinion in the case of Benson bunb a and olive in this court where the bill be  by a lie impropriator the chief baron and another baron be of that opinion  indeed when it be speak to in and the court be divide in opinion and so ho  decree be make in the case of Meadle and Tomlins pasch W the bill be by a  lessee of the dean and canon of Windsor and in the case of Tabot vers salmon  Harding all in the plaintiff be a lessee of the bishop of Litchfield and  Coventry the court determine not the matter by allow the prescription allege  because they be in effect ecclesiastical person be lessee for year to such as  be spiritual person and in this case though there be proof of payment of small  tithe by the inhabitant of saint mary yet none be pay by the defendant one  witness indeed say that he have promise to pay for the tithe of cloverseed but  he may apprehend that to be a great tithe before the determination of the  court in the case of Wallis above p b and pain and though he comens once offer  to pay d in the pound when two shilling be insist on upon better think  afterward be refuse to pay it and the court be earnest desire to consider the  case and it be a matter which may frequent come before the court they take  time to think of it till next term and in Trinity term the chief baron deliver  the opinion of the court to the effect follow the matter for the determination  of the court may be consider under two head first whether a layman can  prescribe in a non decimand against a lie impropriator second whether the  defendant have make out a case which may entitle he to the benefit of such a  prescription and in both these point the opinion of the court be for the  plaintiff as to the first question they think that there be no foundation for  such a distinction that the defendant may prescribe against a lie impropriator  any more than against a ecclesiastical person which it be admit he can for  first no such distinction appear in any law book whatsoever the rule be lie  down general that a layman can prescribe in a non decimand but in modus kill  be may this be say by choke so long ago as Edward this be express resolve in  the bishop of Winchester case   roll Abr the same be agree in several other  case namely in the case of wright vers Gerrard hob Jon cro James SC a more and  lev side b keb and in the case of Slade and drake Noy roll Rep Jon S c c hob  it be large descant upon and agree by Lord chief justice Hobart to be a settle  principle of law comens so Selden in his history of tithe ch vol f who be not  think averse to the privilege of layman in the enjoyment of tithe after a  account give of the infeodations of tithe to layman which by the law of France  and Spain be still allow conclude that infeodations be in England as in other  state but of late time none be Allowable derive from any other original than  the statute of dissolution that discharge by prescription of pay no tithe or  any thing in lieu of they by the late canon law since the parochial right  establish be allow only to spiritual person but to no layman the laity be  incapable of tithe by pernancy as also of discharge by bare prescription save  in case within the statute h comens er p and the reason give in the book why a  layman can prescribe in a non decimand be because a layman since the parochial  right establish be incapable of tithe in pernancy so say Lord coke   as well  as Mr Selden above and consequent as he can take a grant of tithe to himself  unless upon a consideration pay for they as upon a real composition by parson  patron and ordinary or by a modus give in lieu and satisfaction so he can be  discharge from the payment of they for a real composition shall not be intend  unless it be show it have indeed be object that there be no foundation for a  layman to be exclude from the benefit of such a prescription since there be no  incapacity in he to take such a grant and therefore it be hard that time which  establish a right in other case shall weaken his right in respect to his  discharge from the payment of tithe and consequent that he shall have no  advantage from a real composition unless he can produce it which yet in length  of time may as well as other grant be lose and yet in other case where there  have be a immemorial usage to pay or to be exempt some grant shall be presume  original make to warrant it but this will not appear altogether so hard if it  be consider that when the parochial right become establish and comens tithe be  the fix and settle revenue of spiritual person only a grant of they to any  other person be void unless make upon a valuable consideration so that there  be quid pro quo as be the case of a real composition or modus kill it be void  not from any incapacity in the grantee to take but from the impropriety of the  thing grant which be appropriate to spiritual person as their proper and  peculiar maintenance can not be give to a layman that this be so appear by a  epistle of pope innocent the three in the body of the canon law lib title she  de Dec where it be say perceptio no  ad church parochial de jure common to  stretch out and line speak of portion of tithe which a parson may describe to  have in the parish of another say part to be able to come up ad locum  religious devotee de concession layman c de Decimus well outcome quos layman  ankle to have ab church alian in feudum ab antiquity hoc yes be si tale part  no  the dawn gift to be ante concilium lateran celebrate year tempt Alex nam  ante mock concilium to be able layman Decimus in feudum to hold back non yet  post time speech council and the canon of that Council run to hold before ne  layman Decimus cum air danger to hold off in elsewhere layman to be able  transferrer siquis yes To take back church non To give back Cbristiana burial  to bereave cod hence it be manifest that it be not think that a layman be  incapacitate to be the pernor of tithe from any incapacity in his person but  from the nature of the thing grant which be esteem in those day as the  peculiar revenue of the church and layman be under so severe penalty prohibit  to hold they it be no wonder that the commonlaw which in many instance admit  the authority of the canon law in those time shall bold the pernancy of they  by a layman as unlawful but since a layman may claim a exemption from payment  of tithe by a real by composition real be mean where the present incumbent of  any church together with his patron and ordinary do agree by deed under their  hand and seal or by fine in the king court that such land shall be free and  discharge of the payment of all manner of tithe for ever pay some annual  payment or do some other thing to the ease profit or advantage of the parson  or vicar to who the tithe do belong burn Ecc l composition as well as by a  modus why shall not be prescribe to the exemption as well in one case as the  other there be a plain difference for when comens he prescribe in modus kill  the compensation to the parson manifest appear in the prescription and if no  advantage to the parson appear the modus dr burn say that in every  prescription de modus kill it be to be intend the rate tithe be the full value  of the tithe at the time of the original composition for it can be presume he  continue that the parson patron and ordinary will make a composition to the  prejudice of the church and if the modus do not now reach the value it be to  be intend that either the tithe be improve or else that money be now become of  less value which make the present inequality Ecc law d vol p be not good but  if a man shall be allow to prescribe in a non decimand without show any  consideration at all it will be liable to great abuse and it be not so great a  hardship for a temporal person to keep the instrument of his real composition  when he know it necessary that he shall do so as it will be mischievous to the  clergy if that be not requisite for a composition by a parson and a successor  for some year may soon give pretence to set up a prescriptive right second  another reason why a layman shall not prescribe against a lie impropriator any  more than against a ecclesiastical person be that because a lie impropriator  must claim under a spiritual or ecclesiastical person for every patentee of  the crown who can lie claim to tithe must claim it by virtue of the statute h  c or some other statute for the dissolution of religious house the statute h  be the first Act of parliament which enact that the king and all person who  shall have any manor land c belong to the comens er p religious ho use thereby  dissolve shall hold and enjoy the same free and discharge that from the  payment of tithe in as full and ample a manner as the abbot c have the same at  the time of the dissolution now it be well know that none of these religious  person can be exempt from the payment of tithe but by order the pope bull  composition real prescription or unity of possession and every patentee of the  crown that be every lie impropriator must allege a title to the tithe which he  demand by grant from the crown of some rectory vicarage or other tithe which  be part of the possession of some religious house which come to I the crown by  that or other statute and therefore as Lord Hobart say in Slade and drake case  f a temporal person succeed a spiritual person in discharge and it be the same  in the perception of tithe it be to be reckon in a spiritual person and not in  a temporal and consequent a man who can not prescribe against a ecclesiastical  person can any more prescribe against the patentee who derive his title from  and under he comens and be in the nature of his representative as to authority  in the case it be agree that there have not be any determination against the  plaintiff the case of Benson and olive be rather in favour of the plaintiff  for though the court be divide upon the circumstance of that case about make a  decree or leave he to law the plaintiff bring his action on the statute Edward  c which be try before the chief Ju t ice Raymond and recover and the other two  case mention Meadle and Tomlins pasch W and Talbot and salmon seem authority  for the plaintiff for there the lessee of the dean and canon of Windsor and  the lessee of the bishop of Coventry and Litchfield though layman have decree  for their tithe although a constant nonpayment be insist on and what  difference can there be in the reason of the thing between a lie lessee and a  lie impropriator if the prescription be Allowable only because he be a layman  and not a ecclesiastical person there be two case of which my brother Parker  have give himself the trouble to get copy they may be fit to be consider on  this question the first be the case of medley and Talmi pasch W wherein the  plaintiff as lessee of the rectory of Leominster in come Sussex exhibit his  bill against the defendant for tithe of corn and grain grow on his land in the  say parish and suggest that the defendant pretend his land be exempt from the  payment of tithe refuse to discover how they be so discharge the defendant by  his answer insist that his father in the year purchase the land in the  defendant occupation of one William Cooper of Maidstone in ken which in the  purchase deed be mention to be free from the payment of tithe and convey as  such but the ancient deed be lose or mislay so that he can set forth comens by  what way or mean they be exempt the cause come on to be beard before chief  baron ware and judge Litt powis then baron on read the purchase deed of a  great debate arise and the court do not think fit to decree for the plaintiff  without a trial and propose that a action shall be bring on the statute Edward  which the plaintiff decline the bill be dismiss by consent without cost it be  probable that the defendant have a legal exemption which the plaintiff be  conscious of but think to take advantage of the loss of the defendant deed  whereby he be disable to make it out but the court not favour his design  choose to dismiss his bill without cost the second case my brother Parker bath  copy out be the mayor alderman and burgess of Warwick against Lucas Trin Anna  and hear on the that of July the plaintiff sue as impropriators of the rectory  of saint mary in Warwick for the tithe of two close call the Upper friar the  defendant admit the plaintiff to be entitle to all rectorial tithe in the  parish except those two close which he insist be the site of the mansionhouse  of the late dissolve friar preacher in the town of Warwick which come to the  crown by the dissolution of the say house and be free from the payment of  tithe by virtue of some prescription bull order or other lawful mean and have  ever since be hold free from payment of tithe to the rector or vicar and that  the monastery be a spiritual corporation be capable of be discharge by  prescription and upon debate the bill be dismiss by the court with the  plaintiff consent with moderate cost comens er p in these two case it do not  indeed appear direct whether the defendant can make out a legal discharge or  not it be probable that they can and the plaintiff think it so probable that  they care not to try that point but consent that the bill shall be dismiss but  they be far from show the opinion of the court that a bare prescription can be  set up against a lie impropriator any more than a ecclesiastical person for if  so the bill ought to have be dismiss with cost without more ado but as where a  ecclesiastical person sue if the defendant have a probable ground of discharge  it be not proper to decree against it without put comens it in a way of  examination which the court seem Willing to do in these case but the  respective plaintiff doubtful of the issue choose rather that the bill shall  be dismiss but for the clear illustration of this point it may not be improper  to consider in what case a defendant may be discharge by prescription and in  what not where any man occupy land which come to the crown by the dissolution  of religious house by virtue of the statute h c or of the statute h c it be  manifest that he may insist on a discharge by prescription for since the  religious house dissolve by those statute be ecclesiastical body be capable of  a discharge by bull order or prescription the patentee of any part of the  possession belong to any of those house be enable by a special clause in the  act to enjoy the same acquit and discharge of the payment of tithe in as fall  and ample a manner as the ecclesiastical person enjoy they at the time of such  dissolution c and by the statute Edward c no person shall be compel to pay  tithe for any land c which by the law and statute of the realm or by any  privilege or prescription be not Chargeable with the payment of they second a  spiritual person or the king who be mask sancram be capable of tithe in  pernancy be capable of prescribe to be discharge of the payment of tithe that  a spiritual or ecclesiastical person may so prescribe be resolve in the bishop  of Winchester case   cro Elizabeth cro Elizabeth more S c a SC so it be in  Richard bishop of Lincoln case cro Elizabeth Leon S c b roll Rep more Yelv SC  cro Elizabeth SC Jon roll Abr cro car S c c comens that the king may likewise  prescribe in a non decimand appear ass h more cro Elizabeth S c d Sti Jon Het  and in many other book but I know not that it have be allow in any other case  it be insist on in the case of Sidowne and holme cro car Jon roll ab the  plaintiff in prohibition surmise that the prior of Bristol be seize in fee of  land in his possession and that he and his predecessor time out of mind till  the dissolution of the priory by the statute h hold they discharge of the  payment of tithe and by patent the land come to Edward battle and to the  plaintiff as his lessee and it be insist that the prior be capable of tithe  and of be discharge by prescription the plaintiff ought to have the benefit of  the discharge but by three judge it be resolve that the prior be capable of a  discharge by privilege as well as by grant or composition it shall not be  intend to be a discharge by composition but rather by privilege which be the  general course of exemption which privilege be go by the dissolution and  consequent the plaintiff ought to pay tithe and a consultation be award and  roll say that it have be so resolve car in the exchequer and in another case  car by the same three judge the like resolution be in the case of wright vers  Gerrard hob Jon where the plaintiff insist upon a discharge by unity of  possession of a farm call downhall and of the rectory impropriate of the same  parish both which come to the crown by the statute h and the plaintiff claim  the farm as the impropriator do the rectory by grant from the crown but a  consultation be grant comens the like resolution be in the case of bowl and  Atkins lev side keb where a action of debt be bring on the statute Edward c  against the lessee of Allsouls college who insist that the prior of Abingdon  and his predecessor hold the land time out of mind or discharge of tithe till  their alienation to the college of Allsouls but it be unanimous agree by the  comens er p whole court that the college be a temporal corporation can not  prescribe in a non decimand and it be say in that case that this point have be  resolve in the case of sidown and Holmes which be consider as good law in all  the court of Westminster these be so many determination in the matter in  question and much strong than the present case and it appear that no  difference be make between a lie impropriator and a spiritual person for the  around and reason why such prescription be not good be not in respect of the  person against who the prescription be allege but in respect of the person  prescribe because a layman be not capable so to prescribe though a  ecclesiastical person may and this be confirm by all those case where a modus  be insist on for the discharge of the tithe of hay corn c because it be spend  for the fodder of their cattle the maintenance of their family c which be  always disallow because it amount to a prescription in a non decimand more and  such modus be disallow for the same reason as well where sir h Warner a lie  impropriator libel for the tithe as where the parson of the parish sue for  they and after a argument at bar a consultation be grant because none can  prescribe in a non decimand cro and many case may be cite to the same purpose  so where the king prescribe to be discharge of the payment of tithe as he may  his patentee be a lie person can do so as be resolve car where in a  prohibition the plaintiff declare that king Edward the that be seize in fee of  the forest of Savanach in come wilts and comens twenty acre of wood parcel of  the same forest and hold the same time out of mind discharge of the payment of  tithe and grant they to the duke of Somerset and by mesne conveyance the  twenty acre of wood come to the plaintiff who the defendant sue for tithe the  defendant plead that the twenty acre be not parcel of the forest and afterward  by verdict it be find that they be but it be resolve that the alienee of the  king can not have advantage of this prescription in a non decimand for a real  composition or other consideration for such discharge shall not be intend  without show it special and then the grantee of the crown can be discharge  roll ab Jon style and in case the grantee of the king can prescribe in a non  decimand although he claim under the crown which be exempt by prescription  from the payment of tithe it may be just infer that he can do so in any other  case and that the law will not allow any person to prescribe in that manner  unless it be a person ecclesiastical or sacred as the king be who be enable to  hold tithe in pernancy or unless he be within the exemption create by the  statute h or h by the word of the answer it look as if some stress be lie upon  the parish be exempt in this case for the answer say that no small tithe or  any satisfaction or composition for the same be ever pay by or demand from the  defendant or any under who he claim or from any other owner or occupier of  land within the town of bury saint Edmund but the counsel for the defendant do  not insist upon this nor indeed can they with any colour do so for beside that  it appear by the deposition in the cause that small tithe have be pay by  several inhabitant there it be resolve in the case of Hicks and Woodson t W m  Mod Mod comb holt ld raym ld raym S c a Carth salk skin that a custom to be  exempt from the payment of tithe can not be allege in a hundred much less in a  parish but it must be in a county or in pais such as the wile of ken and there  only for thing not due of common right as for wood c and therefore custom  allege in the hundred of Huntspil to be free from tithe for the agistment  comens of barren cattle be after a verdict for the plaintiff which find the  custom hold to be a void custom and a consultation be award which be a far  authority in confirmation of the general maxim of law that a layman can  prescribe in a non decimand three another reason may be give for the disallow  of the defence set up for the defendant in the present case in that the  defendant do not allege any particular ground of discharge but only say that  no small tithe be ever pay or demand for his land and therefore after such a  length of time and so long a enjoyment of land free from payment of tithe a  legal discharge must be presume and it must necessary be intend that the small  tithe be alien or release to comens er p the owner of the land by the person  entitle to the inheritance though the conveyance or release or other legal  discharge be lose or destroy I agree that in court of equity the same  formality be not require as in plead at law but the substance of the matter  allege for the exemption of the defendant ought to be show with so much  certainty at least as the court may see what be insist on and direct the same  to be try or examine in case a prescription be rely upon the defendant ought  to allege the prescription in such a manner as that it may be try in this case  the defendant do not so much as say that he be excuse by prescription he say  indeed no small tithe be ever pay or demand which may be evidence of a  prescription but in all case where a prescriptive right be insist on that be  the matter which must be try and can the court direct a trial of what be not  allege or where that only be allege which may be some proof of it or whence it  may be infer much less whether any legal discharge general or whether any  conveyance release or other legal discharge a issue must be upon a single  point not a matter complicate confuse or multifarious   light in the case of  Brownl S c a priddle and napper   where the defendant in prohibition traverse  the prescription allege comens instead of the unity of possession which be the  ground if any upon which the plaintiff have to excuse himself from the payment  of tithe it be hold to be ill for he ought to have traverse the unity ration c  as he be discharge and consequent his plea be insufficient in Slade and drake  case hob it be say that the discharge of tithe be against common right he must  plead it with its ground and reason special it be true a spiritual person be  capable of a discharge by prescription may allege the prescription general  without assign any reason for such discharge but here be no prescription  direct insist on which can be send to a trial many case may be cite to show  the impropriety of such plead but it be less needful since the matter if it  have be more proper insist on have be insufficient the second question whether  by any thing else appear in the case the defendant may excuse himself from the  payment of tithe for it be urge that there be a unity of possession in the  abbot who have the rectory and Eldo farm in fee and consequent that the  defendant ought not to be charge for the small tithe of acre part of that farm  but how do this unity of possession appear all the proof offer for it be that  the plaintiff make title to the rectory and vicarage of saint mary and of all  tithe praedial mix and minute monastery de bury saint Edmund recently spectan  that by a roll out of the augmentation office it be say that on the that of  November in the saint h the abbot and convent of bury surrender to the king  the monastery and church of bury and all manor message land tithe rectory  vicarages c belong to the say monastery that on the that of July in the that h  the duke of Norfolk account to the crown for the manor of old haw hoe and  Rustham part of the possession of the monastery of bury saint Edmund resign to  the king and by he grant to the duke of Norfolk and value at S d per and  comens now it do not appear that Eldo farm be part of the manor of old haw nor  be it so much as aver by the answer there be nothing to induce a probability  of it but a imagination that Eldo may be a corruption of old haw which be a  thing mere imaginary and destitute of all proof but admit that it real be not  only that ought to have be express allege in the answer but it ought likewise  to have be show that the abbot and convent have be seize of the rectory and  land simul ut semel time out of mind and continue so seize till the time of  the dissolution for accord to priddle and nappers case   b every unity which  amount to a discharge from the payment of tithe by virtue of the statute h  ought to have four quality it ought to be rightful and not commence by wrong  it ought to be equal that be the abbot and convent ought to be seize of the  rectory and land both in fee it ought to be perpetual have continuance time  out of mind it ought to be constant free from payment for if the tenant for  year or will under the abbot and convent ever use to pay tithe the unity will  not avail and Lord Hobart add a five quality it must have constant continuance  in the same body else it be of no force wright and Gerrard hob comens er p and  the same qualification have be agree and confirm by many subsequent resolution  and authority now if the defendant have by his answer insist that there have  be such a unity of possession in the abbot and convent of the rectory or  vicarage of saint mary and of Eldo farm the plaintiff may have be able to  prove that Eldo and old haw be not the same estate that Eldo farm be never in  the abbey and convent nor do the defendant insist or make out that he derive  his title to that farm under the duke of Norfolk that the rectory be  appropriate within time of memory that the lessee pay tithe or that the estate  be in lease at the time of the comens dissolution in which case these land  will not be discharge by the statute vide cro Elizabeth more bull cro James S  c a Jon and for these reason the court decree that the defendant shall account  for the several matter pray by the bill Reynolds chief baron declare it as his  opinion in the case of Charlton v Charlton report in bunb p that there can be  no prescription in non decimand against a lie rector any more than against a  spiritual rector and that they be equal entitle to tithe of common right and  that it be sufficient for a lie rector to set forth in a bill that he be seize  of the impropriate rectory and if he make out his title to that it will be  sufficient without put he to the proof of have receive tithe Pengelly chief  baron maintain the same opinion respect the proof of the payment of tithe in  the case of Benson v olive bunb baron comens in the former case distinguish  between one who set up a title to a rectory and one who entitle himself only  to the tithe or any species of tithe within the parish for in the latter  instance he declare that the plaintiff must be hold to strict proof not only  of his title but also of the perception of all the tithe to which he set up a  title bunb p