same sum so adjudged, shall be a good bar to conclude the said rec- 1. Summary tors, vicars, and other persons, from any other remedy for the said small Remedy for, tithes, oblations, obventions, or compositions for which the said judgment when due from was obtained."

any Person.

7 & 8 Will. III.

c. 6.

Sect. 10. "That if any person or persons against whom any such judgment or judgments shall be had as aforesaid, shall remove out of the county, riding, city, or corporation, after judgment had as aforesaid, and Personsremoving' before the levying the sum or sums thereby adjudged to be levied, the justices may cerjustices of the peace who made the said judgment, or one of them, shall tify judgment, &c. certify the same, under his or their hands and seals, to any justice of peace of such other county, city, or place wherein the said person or per

sons shall be inhabitants; which said justice is hereby authorized and Distress out of required, by warrant under his hand and seal, to be directed to the con- county. stables or churchwardens of the place, or one of them, to levy the sum or sus so adjudged to be levied as aforesaid, upon the goods and chattels of such person or persons, as fully as the said other justices might have done, if he, she, or they had not removed as aforesaid; which shall be paid according to the said judgment."

Sect. 12. "That the said justices of the peace, who shall hear and de- Costs of comtermine any of the matters aforesaid, shall have power to give costs, not plaint. exceeding 10s. to the party prosecuted, if they shall find the complaint to

be false and vexatious; which costs shall be levied in manner and form

aforesaid."

Sect. 13. "That if any person or persons shall be sued for anything Double costs. done in execution of this act, and the plaintiff in such suit shall discontinue his action, or be nonsuit, or a verdict pass against him, that then, in any of the said cases, such person or persons shall recover double costs." [See now, however, the 5 & 6 Vict. c. 97, s. 1 & 2, title "Jusfices," Vol. III.]

40s., to have no

Sect. 14. "That any clerk, or other person or persons, who shall begin Suits for tithes my suit for recovery of small tithes, oblations, or obventions, not exceed- not exceeding ing the value of 40s., in his majesty's Court of Exchequer, or in any of the benefit by this ecclesiastical courts, shall have no benefit by this act, or any clause in it, act. for the same matter for which he or they have so sued."

127.

termine com

The 53 Geo. III. c. 127, s. 4 (a), after reciting the 7 & 8 Will. III. c. 53 Geo. III. c. 6, as to recovery of small tithes, to the value of 40s., and that it was expedient to enlarge such amount, and to extend the said amount to all Justices may dethes whatsoever of certain limited amount, enacts, "That such justices plaints respecting of the peace shall from and after the passing of this act, be authorized tithes not exceedand required to hear and determine all complaints touching tithes, obla- ing 107. tions, and compositions, subtracted or withheld, where the same shall not exceed 107. in amount from any one person, in all such cases, and by all such means, and subject to all such provisions and remedies, by appeal or otherwise, as contained in the said act of king William, touching small tithes, oblations, and compositions not exceeding 40s.: provided always nevertheless, that from and after the passing of this act, one justice of the peace shall be competent to receive the original complaint, and to sumon the parties to appear before two or more justices of the peace, as in the said act is set forth."

The 7 Geo. IV. c. 15, intituled “An Act to amend an Act passed in the 7 Geo. IV. c. 15. Seventh and Eighth Year of the Reign of King William the Third, for the more easy Recovery of Small Tithes," reciting the 6 & 7 Will. III. c. 6, s. 1, and the 53 Geo. III. c. 127, s. 4, and that it is expedient, in certain cases, to alter and amend that part of the said recited act of king William the Third, which relates to the jurisdiction before which the said tithes shall be recovered, enacts, "That from and after the passing of this act, it shall In places where and may be lawful, in all cities, towns corporate, or other towns or places in trons of church, England, Wales, or Berwick-upon-Tweed, where the justices of the peace tithes to be re

(a) See other provisions of this act, title "Church," Vol. I.

justices are pa

covered before

1. Summary Remedy for, when due from any Person.

7 Geo. IV. c. 15.

justices of adjoining county. How far recited act repealed.

Costs of distresses.

5 & 6 Will. IV. c. 74.

c. 6.

in and for the same are patrons of the said church or chapel, where any tithes or offerings do or shall arise, for two justices of the peace in and for any adjoining county, riding, or division, to hear and determine complaints for withholding the said tithes and offerings not exceeding the amount of 101.; such complaint to be made in writing by the said rectar or vicar, or other person, his attorney, or agent."

Sect. 2. "That nothing in this act shall be construed to repeal or alter any of the clauses or provisions of the said recited acts, or either of them, save and except as to such parts thereof as are expressly altered or amended by the same."

By the 7 & 8 Geo. IV. c. 17, the provisions of the 57 Geo. III. c. 93, relative to the costs of small distresses, are extended to distresses for tithes. See" Church," Vol. I.

By 5 & 6 Will. IV. c. 74, intituled "An Act for the more easy Recovery of Tithes," (9th September, 1835,) after reciting, "Whereas an act was passed in the seventh and eighth years of the reign of king William the 7 & 8 Will. III. Third, intituled An Act for the more easy Recovery of Small Tithes, whereby it was amongst other things enacted, that two or more of his majesty's justices of the peace were authorized and required to hear and determine complaints touching small tithes, oblations, and compositions subtracted or withheld, not exceeding forty shillings: and whereas an act was passed in the fifty-third year of the reign of his late majesty king George the 53 Geo. III. c. 127. Third, intituled An Act for the better Regulation of Ecclesiastical Courts in

7 & 8 Will. III. c. 34.

1 Geo. 1. c. 6.

England, and for the more easy Recovery of Church Rates and Tithes, whereby the jurisdiction of the said justices was extended to all tithes, oblations, and compositions subtracted or withheld, where the same should not exceed ten pounds in amount from any one person: and whereas by an act of the seventh and eighth years of the reign of king William the Third, chapter thirty-four, provision is made for the recovery of great and small tithes (not exceeding the amount of ten pounds) due from Quakers, by distress and sale, under the warrant of two justices: and whereas by an act of the first year of the reign of king George the First, chapter six, the provisions of the said last-mentioned act were extended, in the case of Quakers, to all tithes or rates, and customary rights, dues, and payments belonging to any church or chapel: and whereas by the said recited act of the fifty-third year of the reign of king George the Third the aforesaid provisions in relation to Quakers were amended, and were also made applicable to any amount not exceeding 507.: and whereas by an act of the parliament of Ireland of the seventh year of the reign of king George the Third, chapter twenty one, amended and extended by an act of parliament of the united kingdom of the fifty-fourth year of the reign of king George the Third, chapter sixty-eight, similar provisions are in force in Ireland for the recovery, from Quakers, of great and small tithes, and customary and other rights, dues, and payments belonging to any church or chapel, not exceeding the amount of 50l.: and whereas it is highly expedient, and would further tend to prevent litigation, if, in the cases and with the exceptions hereinafter mentioned, all claimants were restricted to the respective remedies provided by the said recited acts;" it is enacted, "That from and after the passing of this act no suit or other proceeding shall be had or instituted in any of his majesty's courts in England now having cognizance of such matter for or in respect of any tithes, oblations, or compositions withheld, of or under the yearly two first-recited value of 101. (save and except in the cases provided for in the two firstrecited acts), but that all complaints touching the same shall, except in the case of Quakers, be heard and determined only under the powers and provisions contained in the said two first-recited acts of parliament in such and the same manner as if the same were herein set forth and reenacted; and that no suit or other proceeding shall be had or instituted in any of his majesty's courts either in England or Ireland now having cognizance of such matter, for or in respect of any great or small tithes,

Proceedings for recovery of tithes

under 101. shall

be had only under powers of

acts.

And of tithes

amounting to 501. due from Quakers under the other acts.

moduses, compositions, rates, or other ecclesiastical dues or demands 1. Summary whatsoever, of or under the value of 50%., withheld by any Quaker either Remedy for, in England or Ireland; but that all complaints touching the same, if in when due from England, shall be heard and determined only under the powers and pro- any Person. visions contained in the said recited acts of the seventh and eighth years 5 & 6 Will. IV. of king William the Third, chapter thirty-four, and the fifty-third year c. 74. of king George the Third; and, if in Ireland under the said recited act of the parliament of Ireland, of the seventh year of king George the Third, and the said recited act of the fifty-fourth year of king George the Third, in the same manner as if the same were herein set forth and re-enacted: provided always, that nothing hereinbefore contained shall Proviso where extend to any case in which the actual title to any tithe, oblation, com- the title to the position, modus, due, or demand, or the rate of such composition or puted. modus, or the actual liability or exemption of the property to or from any such tithe, oblation, composition, modus, due, or demand shall be bond fide in question, nor to any case in which any suit or other proceeding shall have been actually instituted before the passing of this act." [There can be no doubt that this enactment extends to compositions for Manner of retithes of or under the yearly value of 10l. and the Court of Queen's covering tithes Bench have lately decided that it extends to the setting out of tithes of or under that amount, and that the action for treble value for not setting them out, given by the 2 & 3 Edw. VI., is taken away. (Peyton v. Watson, 11 Law J., N. S., 271, Q. B.)]

Sect. 2. "In case any suit or other proceeding has been prosecuted or commenced, or shall hereafter be prosecuted or commenced, in any of his majesty's courts in England or Ireland, for recovering any great or small tithes, modus or composition for tithes, rate, or other ecclesiastical demand, subtracted, unpaid, or withheld by or due from any Quaker, no execution or decree or order shall issue or be made against the person or persons of the defendant or defendants, but the plaintiff or plaintiffs shall and may have his execution or decree against the goods or other property of the defendant or defendants; and in case any person now is detained n custody in England or Ireland under any execution or decree in such suit or proceeding, the sheriff or other officer having such person in his custody shall forthwith discharge him therefrom; and the plaintiff or plaintiffs in such suit or proceeding shall and may, notwithstanding such discharge, issue any other execution or take any other proceeding for recovering his demand and his costs out of the property, real or personal, of the person so discharged."

tithe, &c. is dis

due from Quakers.

And by the 4 & 5 Vict. c. 36, intituled "An Act to amend an Act of the 4 & 5 Vict. c. 36. Fifth and Sixth Years of King William the Fourth, for the more easy Recovery of Tithes;' and to take away the Jurisdiction from the Eccleastical Courts in all Matters relating to Tithes of a certain Amount," fter reciting, that "it is expedient to extend all the provisions of the 5 & 6 Will. IV. c. 74, to all suits in the ecclesiastical courts hereafter to be commenced for the recovery of any tithes, oblations, or compositions of Lr under the yearly value of ten pounds, and of any great or small tithes, moduses, compositions, rates, or other ecclesiastical dues or demands whatsoever, of or under the value of 50l., withheld by any Quaker;" enacts, "That from and after the passing of this act all the enactments Enactments and and provisions of the said recited act passed in the fifth and sixth years provisions of the of his late majesty king William the Fourth, respecting suits or other pro- extended to all ceedings in any of her majesty's courts in England, in respect of tithes, ecclesiastical lations, and compositions of or under the yearly value of 101., and of courts. by great or small tithes, moduses, compositions, rates, or other eccleMastical dues or demands whatsoever, of or under the value of 50%., withheld by any Quaker, shall extend and be applied to all ecclesiastical Courts in England."

5 & 6 Will. IV.

1. Summary Remedy for,

when due from Quakers.

7 & 8 Will. III. c. 34.

Complaint.

Summons.

Hearing.

Adjudication and

costs.

Distress and sale.

47

27

eo. II. c. 20.

7 & 8 Will. III. c. 6.

II. Summary Remedy for Tithes and Church-Rates, and
Payments due from Quakers only.

The 7 & 8 Will. III. c. 34, s. 4, enacts, that where any Quaker shall refuse to pay or compound for any tithes, or to pay any church-rates [or by the 1 Geo. I. st. 2, c. 6, s. 2, for any customary or other rights, dues, or payments belonging to any church or chapel, which of right by law and custom ought to be paid for the stipend or maintenance of any minister or curate officiating in any church or chapel], any parson, vicar, curate, farmer, or proprietor of such tithes, or any churchwarden or chapelwarden, or other person who ought to have, receive, or collect any such tithes, rates, dues, or payments, may make complaint to any two justices, [or by 53 Geo. III. c. 127, s. 6, ante, title " Church," one justice,] other than suc as is patron of the church or chapel, or any way interested in the tithes. Upon which complaint the said justices shall summon in writing, under their hands and seals, by reasonable warning, such Quaker.

And after appearance, or on default of appearance (the warning or summons being proved before them upon oath), they may proceed to examine on oath (or in such manner as by this act is provided) the truth of the complaint, and to ascertain and state what is due and payable.

And, by order under their hands and seals, they may direct and ap point the payment thereof; so as the sum ordered (as is aforesaid) do no exceed 107. [And by 53 Geo. III. c. 127, s. 6, 501.] And also suc! costs and charges as they shall think reasonable, not exceeding 10s [Sect. 5.]

And, on refusal to pay, it shall be lawful for any one of the next twi justices, by warrant under his hand and seal, to levy the same by distress and sale of the goods of such offender, his executors or administrators, rendering the overplus, the necessary charges of distraining being there out first deducted and allowed by the said justice: unless it be in the case of appeal, and then no warrant of distress shall be granted till after the appeal shall be determined. [Sect. 6.]

Therefore, it seemeth best not to make out, at least not to execute, the warrant of distress, until after the next sessions.

Note again: here is no time limited for detaining the distress, not charges allowed for the keeping of it; so that it may be sold imme diately.

And by the 27 Geo. II. c. 20, s. 1, which, in all other cases, gives the justices power, in their warrant of distress, to order the goods distrained to be detained for a certain time, not less than four days, the tithes and church-rates of Quakers (although not those other dues and payments above mentioned) are excepted. See "Distress under Justice's Warrant," Vol. II.

Also, it is observable here, that the 7 & 8 Will. III. c. 6, limits the proceed ings to the two next justices (not interested); and the statute of the 1 Geo. L st. 2, c. 6, enlarges the same to any two justices (not interested) as to the complaint, summons, and order, but restrains the distress to the limitations in the statute of the 7 & 8 Will.-that is, to one of the two net justices as aforesaid; which possibly may have been an oversight, for it may happen hereupon that neither of the two justices which made the order can enforce the execution of it by distress. To prevent which inconvenience, it may be proper that one at least of the justices complained to be one of the two next justices (not interested). Now, however, by 7 Geo. IV. c. 15. the 7 Geo. IV. c. 15, (ante, p. 267,) in places where justices are interested as patrons of the church, the tithes may be recovered before justices of any adjoining county.

ppeal.

By 7 & 8 Will. III. c. 6, s. 7, any person aggrieved by the judgment of the two justices may appeal to the next sessions; where, if the judg ment shall be affirmed, they shall decree the same by order of sessions, and give costs against the appellant, to be levied by distress and sale, as to them shall seem reasonable.

And no proceedings herein shall be removed by certiorari, or other- 2. Summary wise, unless the title of such tithes shall be in question.

Remedy for,

An order of two justices was made against three persons, being when due from Quakers, for the payment of certain customary payments, called chapel Quakers. salary, to the Rev. Mr. Smith, curate of the chapel of Burniside, in West- Certiorari. moreland, where the said Quakers had estates chargeable with the said payments. On appeal to the sessions, the order was confirmed. The Quakers moved for a certiorari, and though cause was shown against the issuing of it, yet a certiorari was granted; and the return was filed, and exceptions were taken to it, and argued at the bar. Lord Mansfield, C. J., delivered the opinion of the court:-"That the certiorari ought not to have issued at all; that the return should be taken off the file, and all proceedings thereon fall to the ground; and that the orders of the justices and sessions should be remanded. The order of the justices (he observed) was made on the 1 Geo. I. st. 2, c. 6, which extends the 7 & 8 Will. c. 6, concerning tithes, to all customary payments due to clergymen. Those two acts are to be taken together as one law. They were intended for the benefit of the Quakers; to prevent their being liable to expensive suits for refusing to pay tithes upon scruples of conscience, by giving an apparent compulsory method of levying tithes and other customary payments in a summary way. This proceeding cannot be removed by certiorari, unless the title to these customary payments comes in question; and on this proviso the present question arises. The affidavits read on the original motion for the certiorari set forth, that before the justices and the sessions the defendants controverted the right of the curate to these customary payments. The affidavits against the certiorari say, that these payments have been made from time immemorial; that no inhabitant ever disputed it but these Quakers, that they have enjoyed the messuages but a few years; and that the former inhabitants never disputed the right of the parson. Taking these affidavits together, it is clear that the Quakers controvert the right to the customary only, as all Quakers controvert the payment of all dues to all clergymen upon scruples of conscience, which is the case directly within the act, and the proceeding must therefore follow the directions of the act. The Quakers themselves have acknowledged the jurisdiction of the justices by appealng to the sessions; whereas, had they intended to dispute the title to these customary payments, they would at first have removed the order of two justices by certiorari. The only difficulty remaining arises from the return already filed. But there are several instances of this court superseding a certiorari after the return filed: as, where an order of justices is removed, and it appears, upon the return, that the parties had a right to appeal to the sessions, and that the time for appealing was not expired when the certiorari issued; in such case, this court supersedes the writ of certiorari, quia improvide emanavit. The same must be done in the preent case." (R. v. Roger, Wakefield, and others, H. T., 31 Geo. II.)

As to costs of distresses, see the 7 & 8 Geo. IV. c. 17, Vol. I., tit. Costs of dis"Distress."

tress.

Since the 5 & 6 Will. IV. c. 74, ante, 268, and 4 & 5 Vict. c. 36, ante, Jurisdiction of 259, this proceeding for the recovery of tithes to the amount of 50l. due superior courts from Quakers is the only mode that can be adopted.

taken away.

III. Of Contempts for Tithes in the Spiritual Court.

cess.

By the 27 Hen. VIII. c. 20, s. 1, if the ecclesiastical judge shall, for Contempt of proany contempt, contumacy, disobedience, or other misdemeanour of any Gefendant in the case of tithes, make information and request to the justices of the peace of the shire where the offender dwelleth, to assist him to order and reform any such person, two of the said justices, (one being