CCCCLXVII Knightley and spencers case prohibition unity of possession a  discharge of tithe a rend in be to some purpose and suspend to other in a  prohibition betwixt Knightley and Spencer the case be that Ph abbot of Evesham  and all his predecessor time out of mind c be seize as well of the Leonard er  p rectory impropriate of b in the county of n and also of the manor of b in  the same parish c until the dissolution of his house and that by reason  thereof the say abbot and all the predecessor have hold the say manor  discharge of payment of tithe until the dissolution c and show the branch of  the statute of h and that the say abbot do surrender the possession of the say  house to the king and that the king hold the same discharge of the payment of  tithe and that afterward the king grant unto the ancestor of Knightley the say  manor and to the ancestor oh Spencer the say rectory and although the  plaintiff ought de jure to hold the say manor discharge of tithe yet the  defendant sue he in the spiritual court c to which the defendant Leonard  confess the impropriation plead that the say abbot be seize ut above but that  before the make of the say statute of h the say abbot demise Decimus  rectortiae predict to one Spencer for year who make the defendant his executor  and die and that at the time of the say demise and dissolution of the say  abbey one goodman and other be possess of the say manor until the year which  be the year before the suit begin in the spiritual court and that at the time  of the dissolution he pay tithe for it and now the plaintiff refuse to pay c  without hoc that the abbot and his predecessor hold the say manor quit of the  payment of tithe time out of mind c upon which the plaintiff do demurrer in  law coke for the plaintiff that this unity of possession be a discharge within  the statute of h the word of which be that the king and his assign shall have  and enjoy the land discharge and acquit of tithe as free as the say abbot hold  the same at the day of the dissolution and see before whereas diverse abbot be  acquit and discharge of and for the payment of tithe for the statute do not  intend a real discharge as by composition or such manner which be not here but  only a suspension which be not any discharge in law and yet in speak of  discharge ordinary a actual discharge be understand as if I be bind by  obligation to discharge one of such a bind it be not enough to pay the money  but I ought to procure a actual discharge where it be put general but where it  be put secundum quid as it be here refer to the dissolution a suspension be a  discharge intend in the say statute but where the statute be indefinite there  a actual discharge be understand but restrain to a time a suspension suffice  and true it be a discharge within the intent of the statute for if the statute  shall be intend of a absolute discharge and a discharge in law only the  statute have be superfluous for the law say so much before for without such  provision the king and his assign hold discharge from payment of tithe but the  maker of the statute know well enough that the abbot may have such discharge  by diverse mean and it shall be infinite for the party interest to inquire of  they all and therefore they do enact brief that if at the time of the  dissolution they be in any manner free of payment of tithe the same shall be  sufficient and so here be not any wrong unto any for the parson have all as he  have before and the same be like the case betwixt wharton and Morley Elizabeth  n the exchequer the report of which Mr Plowden communicate unto I and it be  upon the statute of I e cap of monastery that all grant make to the king by  any provost governor c of any manor c shall be good c and the case be that a  pretend of the church of York surrender to the king but the surrender be never  enrol and yet adjudge good upon the statute for if it be a lawful surrender  the same have be good of it self without any aid of the statute which be make  to supply insufficient assurance and so in our case for the cause aforesaid  and it shall be injurious to drive the jury to inquire of the manner of the  discharge if it be by composition upon the foundation or by dispensation of  the pope as cisterc templarii and here the plaintiff have declare of a  impropriation before time of memory and so before the council of lateran which  be within those year and Elizabeth there be a Sussex case where the plaintiff  declare as here but they will not proceed and see dyer Elizabeth the prior of  saint John have privilege from Rome that be shall not pay tithe for any land  quas not common with others shades of dead or cost excola but their farmer  have pay tithe and it be hold that in the hand of the farmer tithe shall be  pay but after the term end the patentee shall hold discharge so as the statute  have a favourable construction upon this point now it be to see Leonard if the  lease of the rectory by which the defendant claim be good or not and then  admit that tithe be due in Leonard er p this case yet if his lease be void he  shall not have a consultation especial if it appear upon his own show as it be  hold in a Hampshire case betwixt Sutton and Dowze which see mich Elizabeth and  in that case the lease be void for it be make within a year after the statute  of h the January before and the statute in April after for he have not aver  that the usual rend be reserve nor that the land be usual let to farm for  which lease otherwise make within the year be absolute void by the say statute  but it will be object that this matter shall come in of our part and it be  sufficient for they to plead the case but it be not so as it be late agree in  Heydons case in the exchequer where the case be that the warden and canon of  the college of otery lease certain land to Heydon for year and he in plead of  his lease do not show that the ancient rend be reserve and therefore nought  and so be the opinion of the justice of the common plea in the case betwixt  the Lord Cromwel and Allsouls college upon the statute of Elizabeth cap upon a  branch of it by which it be provide that the three part of the rend reserve  upon any lease shall be pay in corn c and the lease make to the contrary shall  be void and in a ejection strong bring upon such lease because it be not show  in the declaration that the corn be reserve accord to the statute judgement be  arrest and we need not to plead the statute for although the statute be  particular yet because the king have interest in it it shall be hold in law a  general Act and the judge shall take notice of it although it be not allege b  the party as it be rule in the Lord Barcklays case Elizabeth blow but if such  rend be reserve yet the lease be good for the king can have his rend because  it be not incident to the reversion nor passes by the grant of the reversion  for it be not a rend but rather a sum due by reason of contract which see ass  a man leas a hundred render rend or grant a rend out of a hundred the same be  not a good rend but mere void for a hundred be not manorable nor can be put in  view nor any assize lie of such rend see ass and in Elizabeth n the case  betwixt Corbet and clear the dean and chapter of Norwich lease a parsonage and  common of pasture render rend I e they surrender their possession to the king  and afterward the king grant the parsonage without speak of the common of  pasture it be hold that the patentee of the parsonage shall have all the rend  and no apportionment shall be in respect of the common for all the rend issue  out of the parsonage and nothing out of the common so here for tithe be not a  hereditament which can support a rend within this statute for which cause the  lease be void also he say that the traverse of the defendant be not well take  for the plaintiff have say that time out of mind c the abbot and his  predecessor be seize of the rectory and manor aforesaid simul semel and ration  ind be discharge c at the time of the dissolution the defendant traverse  without hoc that the abbot and his predecessor hold discharge of tithe time  out of mind c which be not good for he have traverse our conclusion for our  plea be a argument wheresoever be unity time out of mind c there be a  discharge of tithe but in the abbot be such a unity ergo he hold discharge of  tithe as e in a praecipe quod To give back the tenant say that the land in  demand be parcel of the manor of d which be ancient demesne and c to which the  plaintiff say that it be frankfee and the same be not good for he deny the  conclusion but he ought to plead to the nature of the manor that it be not  ancient demesne or that the jand in demand be not parcel of it another matter  be because it be plead to be in Leonard tenure occupation of goodman and other  but he do not show by what title seize or lease or other title c Buckley  contrary and he say this unity of possession be not any discharge of tithe by  the say statute and as to the case cite before of h where tenant in tail of a  refit enter upon the tenant of the land now be the rend suspend and then after  when he make a feoff in fee by that feoff the rend be extinguish which be but  suspend at the time of the feoff and therefore some have hold that if after  such entry be make a lease for life of the land that his rend or signiory be  utter go in continuous for by the livery all passes out of he which he say can  be law and so it seem to gawdy justice then upon such feoff with warranty he  can not vouch as of land discharge of the rend general but as of land  discharge at the time of the feoff which prove that the suspension be not a  discharge for it be Leonard er p suspend before the feoff and discharge by the  feoff and so suspension be not a discharge a strong in the case of tithe for  in the case of common and rend although they be suspend so as they can be  actual take yet they be to some intent in be as where land hold of other lord  be in the hand of the king for primer seize by reason of prerogative and  during such seize of the king the lord get seize the same be a good seize  notwithstanding that it be suspend so as be can not distrain and also in  assize of land damage as to the rend out of the land shall be recouped  therefore the rend in some sort be in be and much strong this tithe which be a  thing of common right shall be in be but go with the land and therefore by  unity of possession shall not be suspend h he who have liberty of warren in  the land of another enter into the land the warren be not suspend nor by feoff  of the land be extinct and in this case upon the matter during the unity of  possession the tithe be pay although not in specie also the abbot have the  tithe as parson of b and the land as abbot and therefore no suspension for the  tithe be always in be although not take in the manner as tithe common be but  by way of retainer e a writ of annuity be bring against a prior and it appear  that the prior and his successor have use to pay the annuity as parson of d  and not as prior which parsonage be appoint to the say priory time out of mind  and in the writ the defendant be name prior only and not parson and therefore  the writ be abate see e it in a action of waste so Bracebridges case Elizabeth  blow the case put by catiline if the parson patron and ordinary make a lease  for year and afterward the lessee become there incumbent the term be not  extinct for he have the term in his own right and the inheritance in the right  of his church which see h dyer a parson purchase and after leas his parsonage  he himself shall pay tithe notwithstanding this unity and as to the reason of  the other side that if such discharge of tithe be not intend by the statute  but only a discharge in law the statute shall be in vain the same be not so  for if the abbot have be discharge by way of release or composition for the  monastery be dissolve the appropriation have be good if it have not be support  by the statute and then the release and composition of ho force and the king  shall not take advantage of it but by this statute and as to Whartons case  before cite the same can be law for it have be hold upon the statute of  Elizabeth of confirmation that if a infant make a lease to the king the same  be not make good by the statute for the say statute extend to imperfection in  circumstance and not in substance and although the lease be not good yet  because the matter of the surmise be nought although our bar be nought a  consultation ought to Leonard be grant also our lease be well plead and if  such defect be in it as have be object the same ought to come in by plea on  the other side and it be not like Heydons case for there it be find by special  verdict nor to Cromwell case where such defect be in the declaration and so no  ground of action as to the traverse it be good enough as if special bastardy  be plead against one bear before the marriage and so bastard the other party  shall traverse general the bastardy and not the special matter but for the  principal matter I this unity of possession diverse rule have be Elizabeth in  the common plea the case be a abbot have a manor within the parish of d and a  composition be make betwixt the parson of d and the say abbot that the parson  shall have yearly certain load of wood out of thirty acre of the say manor for  and in recompense of all the tithe of wood there afterward the parsonage be  appropriate to the say abbot and afterward the house be dissolve and the manor  grant to one and the rectory to another and it be hold that the portion of the  tithe be remove for he have they sure the manor and the tithe in several right  and manwood chief baron and periam justice to who a case depend in the  chancery be refer concern the discharge of tithe by unity of possession  deliver their options that such a unity be not any discharge within the say  statute it be adjourn more Rep   cro Len Len ante cro     Leonard er p mich  Elizabeth in the king bench