burrow king versus WAKEFIELD et all Wednesday that February order of justice  on quaker for payment of tithe confirm at session good SC burn I p title tithe  Mr Harrison have obtain a rule in Michaelmas term to show cause why a order of  two justice make upon several quaker for payment of tithe under the value of  ten pound to the curate of a chapel and confirm at the session upon a appeal  from it shall not be quash together with the order of session confirm it see W  c and g saint c Mr Norton in Michaelmas term last videlicet on that November  show cause he give up the order of session as not maintainable but defend the  original order to this original order Mr Harrison have take four exception  which be now support by he and Mr Clayton these exception be as follow first  it be a joint order make on different person for distinct nonpayment of  different tithe whereas there ought to have be a distinct order on each in Str  between the parish of Chewton and ComptonMartin the removal of different  family of pauper by one order be hold bad though the parish be the same d the  title be in question therefore the justice have no jurisdiction the exception  in the Act of g stat c be unless the title of such due tithe or payment shall  be in question and these word unless c extend to this whole clause and be not  confine to the grant a certiorari only and this fact of the title be in  question appear as Mr Harrison allege upon the grant the certiorari in the  present case d non constat that the two justice who make this original order  be neither patron nor interest in the tithe but g c require that they shall be  neither one nor the other now they ought express to aver and show negative  that they be not or else they have no jurisdiction by the very word of the Act  the jurisdiction be give to any two or more justice c other than such as c  burrow that it do not sufficient ascertain and state what be due and Payable  by the defendant or at least for what the respective sum be due one sum be S d  be due to the curate not say for what another be be the value of their ancient  customary payment other be S be ancient customary payment this order be make  on the Act of g stat c which extend the W c to all payment to minister or  curate officiate in church or chapel V that statute of W c which extend only  to tithe and churchrent Mr Norton contra answer these objection the substance  of his defence against they be full sufficient if true for he deny the first  to be material and deny the three last to be well find the matter be adjourn  to Monday that November then this motion be mention again the court inquire  whether the return of the certiorari be file and Lord Mansfield say he have  call for and read the affidavit make for obtain the certiorari and upon the  show cause Mr just denison mention a case of king v furnes b r h Geo upon a  certiorari to remove a order make upon the Act of W c for payment of small  tithe where ld Ch I Pratt think that where the right be in question such case  be never intend to be the subject of that Act of parliament he say this be  only speak from a note which he have see but it shall seem to be right and  true and the rather from a case of king v Furness be mention in strange v W c  N B the Act do not require the latter this objection be not support by the Act  it be right and true at least I have a ms note of the same case to the same  effect or strong for I say per cur the design of the statute be only to give a  speedy remedy for small tithe where the right be agree burrow er p where a  order for nonpayment of small tithe make on W c be quash adjourn to the  present term Lord Mansfield now deliver the opinion of the court he begin with  state the two act of W c and g stat c the former relate only to great and  small tithe and churchrate and be temporary the latter make it perpetual and  extend burrow it to any tithe or rate or any customary or other right due or  payment longing to any church or chapel which of right by law and custom ought  to be pay for the stipend or maintenance of any minister or curate officiate  in any church or chapel and both act direct that the proceed shall not be  remove into any other court unless the title shall be in question it be upon  the last Act that the present order be make a certiorari have issue to remove  the order into this court and it come on upon exception to the order both side  make very material objections one side to the order for that the justice have  no jurisdiction because the title be in question the other to the certiorari  for that no certiorari can issue by the express provision of the Act to remove  the proceed from before the justice into any other court because the title be  not in question the Act be make in favour to and for the ease and benefit of  quaker and to save they from troublesome and expensive prosecution but it  never mean that a mere scruple of they or a obstinate withhold of the tithe  shall be any hindrance to the matter be be determine by the justice of peace  this will have frustrate the very intention of the Act which mean to give this  jurisdiction to the justice in that very case where the real right and title  to they shall not be in dispute between the party then his lordship direct the  affidavit on which the certiorari be grant to be read it be therein swear on  the part of the defendant that the defendant controvert the title to the tithe  before the justice and also I that the title to the tithe be then and at the  time of make the say affidavit real in question the justice have notice to  show cause against the certiorari on show such cause five old inhabitant of  the chapelry swear by their affidavit that such customary stipend or payment  have always be pay to the curate by the landholder without any sort of scruple  or objection except late by the quaker and no other person dispute it and  these five person also swear that they believe they to be due and that the  former owner of these very land which have be purchase about four year ago by  those quaker do burrow pay for they as other person do in the say chapelry and  these quaker purchase the land as subject to such payment these be the  affidavit upon which the certiorari be grant now if this general allegation of  the quaker controvert the title and the consequential assertion that the title  be in question without any further particular or show at all upon what foot  they controvert the payment shall be esteem a sufficient ground for remove the  order it will put a total end to these act of parliament and evade the very  design and intention of make they for the quaker may pretend that they be  oblige in conscience to refuse or controvert the payment of these demand and  consequent to question and deny the right to receive they now that be the very  thing the act mean to provide a summary remedy for the intention be that in  such case the justice shall make a order to compel they to pay their affidavit  be general that they controvert the title and that it be real in question  whereas by the affidavit make by the five old inhabitant it be very plain that  the former owner of these very land have always pay and that these quaker who  be the subject of this order have no pretence to dispute it upon any other  foot than their own general scruple to pay any demand of this nature which  these act be for their own ease and advantage calculate to compel they to do  in a method the most gentle and convenient for themselves who scruple to pay  without compulsion we be all of opinion as to the merit of the case that the  title be not so contro burrow er p verted or so in question as that the  justice can be preclude from jurisdiction or their order be regular and proper  remove into any other court and we be all of opinion that the rule for the  certiorari have be make absolute and the return thereto have be file ought  riot now to stand in the way and prevent our come at the real justice and  merit of the case for if the certiorari issue improvident we can order it to  be supersede and the return to be take off the file burrow there have be  several instance of this a one be where a order of two justice be appeal from  and before the time when the appeal shall in course have come on at the  session a certiorari be bring to remove the order and because the certiorari  be bring before the time of hear the appeal be come the certiorari be quash  and the return take off the file the b other be a certiorari to remove a  indictment from the old Bailey and it appear to this court that they can not  give judgement but that the session of oyer and terminer at the old Bailey  ought to do it the like method be take and it be send back to the court below  for they to pronounce the judgement therefore upon this case we be all of  opinion that the writ of certiorari be supersede because improvident to flow  out the return take off the file and the order remand his lordship add this  hint to be observe in future case of this sort videlicet that upon all order  of this kind the great and material point must be whether the title to the  tithe be real in question or not and ought to be determine before the  certiorari issue