(Gg) What Remedy an Occupier has, &c.

W. 3, c. 34, § 4, and 1 G. 1, stat. 2, c. 6, § 2, are extended to any value not exceeding fifty pounds; and one justice is made competent to receive the original complaint, and summon the parties to appear before two or more justices.

(Gg) What Remedy an Occupier has, when the Person entitled to Tithe does not fetch it away in a reasonable Time.

If the person entitled to the tithe of milk do not fetch it away before the next milking-time, the parishioner may pour it upon the ground; because he may then have occasion for the pail, or other vessel, in which it

was set out.

Bunb. 73, Dodson v. Oliver.

Although a predial tithe be not fetched away in a reasonable time by the person entitled thereto, the occupier of the land, upon which it is set out, cannot justify the distraining thereof damage-feasant; but he may have an action for the damage sustained by its lying too long upon the land.

3 Bulstr. 337, Mountford v. Sidley; Latch, 8. See 8 Term R. 72.||

The occupier of the land, upon which tithe is set out, cannot justify the putting of his cattle upon the land, before the tithe is fetched away; for it is probable, that the person entitled thereto would sustain more damage by having his tithe destroyed by the cattle, than the occupier would by being deprived for some time of the use of his land: and it is much more reasonable to leave the occupier to his remedy by action, than to suffer him to judge when the tithe has lain there too long.

Ld. Raym. 187, Shapcott v. Mugford, (2d edit.,) 1765; Ld. Raym. 198; Shapcott v. Mugford, Com. 24.

This doctrine is confirmed by a modern case, in which Lord Kenyon also said that the occupier might distrain the tithes damage-feasant.

Williams v. Ladner, 8 Term R. 72; and see Baker v. Leathes, Wightw. 113.||

But, if the person entitled thereto have neglected to fetch away tithe in a reasonable time, and cattle, either of the occupier of the land upon which the tithe is set out, or of a stranger, do without the default of the occupier come upon the land, and destroy the tithe, the loss must fall upon the person who neglected to fetch it away.

2 Leon. 101, Bennet v. Shortwright; Cro. Eliz. 206.

An action of trespass does not lie against the person entitled to tithe for not having fetched it away in a reasonable time; because the injury to the occupier of the land does not arise from a mal-feasance but from a nonfeasance.

Latch, 8, Stilman v. Chanot; Ld. Raym. 189.

But the remedy of the occupier of the land, in case the tithe be not fetched away in a reasonable time, is by an action upon the case. 3 Bulstr. 337; Mountford v. Sidley, Latch, 8; Ld. Raym. 188.

An action for not having fetched away tithe in a reasonable time does not lie, unless the tithe were set out by a person who had some colour of title to the land upon which it arose; because, as the severance of tithe by a stranger does not vest such a property in the person entitled thereto, as to enable him to maintain an action against a person who afterwards carries it away, it is not reasonable that he should be liable to an action for not having fetched it away.

3 Bulstr. 337, Mountford v. Sidley; Latch, 8.

(Gg) What Remedy an Occupier has, &c.

Before the occupier of the land can maintain an action against the person entitled thereto for not having fetched away tithe in a reasonable time, he must give notice of its being set out; because, as the former was not obliged to give notice at what time he intended to set the tithe out, the latter may not know that it is set out.

1 Roll. Abr. 643, (X), pl. 1.

||The notice that the tithes are set out, and requiring the parson to fetch them away, must be reasonable according to the circumstances. Where due notices were given to the parson of the setting out of the tithe of fruit and vegetables in a garden, which were accordingly set out; and the tithes not having been removed at the distance of a month afterwards, when they had become rotten, a notice then given to remove the tithe fruits and vegetables within two days, otherwise an action would be commenced against the parson, was held sufficient notice whereon to found an action. Kemp v. Filewood, 11 East, 358; Gwill. 1649.

The action for not removing tithes will lie not only where the tithes have been set out in the mode prescribed by the common law, or by the special custom of the place, but also where they have been set out in a particular manner agreed on by the tithe-owner and the farmer.

Facey v. Hurdom, 3 Barn. & C. 213; 5 Dow. & Ry. 68; 3 Eag. & You. 1172; and see Pigott v. Bayley, 6 Barn. & C. 16.

If there is no special custom or private agreement, the action cannot be maintained, unless the tithes are set out according to common law. Moyes v. Willett, 3 Esp. Ca. 31; Gwill. 1526; and see Hooper v. Mantle, 1 M'Clel. 388; Eag. & You. 1162.|||

And after the person entitled thereto has had notice of tithe being set out, he must, before an action can be maintained against him for not having fetched the tithe away, have a reasonable time to fetch it away; and the question, What is a reasonable time? is proper for the determination of a jury.

3 Bulstr. 336, Mountford v. Sidley; Bro. Dism. pl. 12; Ld. Raym. 189; Str. 245, 246, South v. Jones; Facey v. Hurdom, 3 Barn. & C. 213; 5 Dow. & Ry. 68; Eag. & You. 1172.

101

UNIVERSITIES.

(A) Universities, what.

(B) Of their Courts and Privileges of Jurisdiction. Wherein,

1. How they are to demand Conusance.

2. By whom it may be demanded.

3. At what time it may be demanded.

(C) of their Privileges with regard to their Right of Presentation to the Livings of Papists. Wherein,

1. In what cases they shall present.

2. Whom they shall present.

3. How their Right of Presentation may be prevented.

4. How Trusts made to prevent their Right of Presentation may be discovered.

5. How their Right of Presentation may be divested.

6. How it may be avoided.

(A) Universities, what.

By universities in general, we understand those seminaries of learning where youth are sent to finish their education, and to be instructed in the liberal sciences. With us, by universities, are more particularly denoted those two learned bodies of Oxford and Cambridge, which are invested with several peculiar privileges.

[It is, indeed, from their being invested with such privileges, or rather, from their being incorporated, (for they would not otherwise be capable of receiving them,) that they were called Universities; Universitas being the proper Latin word for a corporation. Considered as corporations, these learned bodies are merely the creatures of the crown. The power of granting degrees flows from that source; for, if the crown erects an university, the power of conferring degrees is incident to the grant; and in point of fact, they never affected to confer degrees till they were incorporated. They were formerly considered as ecclesiastical, or at least as clerical, corporations; for they were composed chiefly of ecclesiastics, and denominatio sumenda a majori; and they had, as ecclesiastical bodies, ab initio ecclesiastical jurisdiction. Hence the claim of the Archbishop of Canterbury to visit them jure metropolitico, which was allowed in the reigns of R. 2, H. 4, and Car. 1, and established by parliament in the reign of H. 4. It is now settled, however, that they are merely lay corporations, and as such, subject to no visitation, properly so called; the appeal, if any one feels himself aggrieved, being to the Court of King's Bench; which court, as its judgments are revisable by the Lords in Parliament, seems to want that definitiveness of sentence which is essential to visitatorial power. The universities being bodies corporate by prescription, it follows, that it is not competent to the crown, of itself, and without their consent, to make any innovations in their constitution, or to abridge any of those rights which

(B) Of their Courts and Privileges of Jurisdiction.

they enjoy either by prescriptive usage or under old charters; and that they may, like other civil corporations under these circumstances, accept a new charter, in part and upon such terms as they may think proper.

See Sir P. Yorke's argument, 1 Burn's P. L. 420. See also 8 Mod. 163; 3 Burr. 1656; 1 Bl. R. 547; 1 Bl. Com. 481.]

(B) Of their Courts and Privileges of Jurisdiction.

EACH of the universities had several powers and privileges by charters from the kings of this realm, particularly one in the eighth of Hen. 4, whereby they were authorized to hold plea of all causes arising within the university according to the course of the civil law: but in the opinion of all the judges of England the grant was held not to be good; for that the king could not by his grant alter the law of the land. To remedy this and other defects respecting their powers and privileges, a special act of parliament was made in the 13 Eliz., confirming all former letters patent, and all manner of liberties, franchises, &c., which they had held, or of right ought to have enjoyed, &c.

4 Inst. 227; Godb. 201, pl. 287; Archbishop of York v. Sedwick.

By letters patent (not confirmed by parliament) dated thirtieth March, 11 Car. 1, granted to the University of Oxford, their old privileges are explained, and larger granted.

1 Mod. 164, Magdalen College case; Wood's Inst. 548. Their courts are called the Chancellors' Courts. The chancellors are usually peers of the realm, and are appointed over the whole university. But their courts are kept by their vice-chancellors, their assistants, or deputies: the causes are managed by advocates or proctors.

1 Mod. 164. By charter of 14 Hen. 8, The Chancellor, his commissary, and his deputy, that is, the pro-vice-chancellor, are justices of the peace for the vill of Oxon, county of Oxon and Berks; and their authority does not depend on the common commission only, they being justices of the peace by virtue of their offices.

These courts have jurisdiction in all causes ecclesiastical and civil (except mayhem, (a) felony, and freehold,) where a scholar, servant, or minister of the university is one of the parties in suit.

1 Mod. 164, and Cro. Car. 73, Wilcocks v. Bradell. But see the petition against the grant of Hen. 4, in Prinn's Animad. p. 368, 369. (a) [The trial of treason, felony, and mayhem, is committed in both universities to the university-jurisdiction in another court; namely, the court of the Lord High Steward of the university. The cognisance of offences of this nature has not been claimed by this court in either university for many years, though instances have unhappily occurred in which the claim might have been made.]

Their proceedings are in a summary way, according to the practice of the civil law; and in their sentences they follow the justice and equity of the civil law, or the laws, statutes, privileges, liberties, and customs of the universities, or the laws of the land, at the discretion of the chancellor.

Cro. Car. 73, Wilcocks v. Bradell; Hetley, 25, Thomas Wilcock's case; Hard. 508, Castle v. Litchfield.

If there be an erroneous sentence in the chancellors' court of the University of Oxford, an appeal lies to the congregation, thence to the convocation, and from thence to the king in Chancery, who nominates judges delegates to hear the appeal.(b) The appeal is of the same nature in Cambridge. (c)

Wood's Inst. 549; 2 Ld. Raym. 1346, The King v. The Chancellor, &c., of Cambridge. [(b) According to Sir Wm. Blackstone, the appeal in the first instance is to

(B) Of their Courts and Privileges of Jurisdiction.

delegates appointed by the congregation; thence to other delegates of the house of convocation; and if they all three concur in the same sentence, it is final, at least by the statutes of the university, according to the rule of the civil law. But, if there be any discordance or variation in any of the three sentences, an appeal lies in the last resort to judges delegates appointed by the crown under the great seal in Chancery. 3 Bl. Comm. 85. (c) The appeal from the vice-chancellor's court in Cambridge is to certain delegates appointed by the senate; but the editor is informed, that from the sentence of these delegates there is no appellate university-jurisdiction.]

As by charter confirmed, as above mentioned, by act of parliament, cognisance is granted to the university of all suits arising anywhere in law or equity against a scholar, servant, or minister of the university, depending before the justices of the King's Bench, Common Pleas, and others there mentioned, and before any other judge, though the matter concern the king: if an indebitatus assumpsit is brought by quo minus in the Exchequer against a scholar or other privileged person, the university shall have conusance; for the Court of Exchequer is included in the general words.

Cro. Car. 73, Wilcocks v. Bradell; Hard. 505, 508, Castle v. Litchfield. There is some disagreement in the books as to the recital of this charter; in Cro. Car. they are said to have conusance, ita quod justiciarii de banco regis sive de communi banco, vel justiciarii de assisis non se intromittant. In Hard. it is said that conusance is given them of all suits, &c., depending before the justices of the King's Bench, Common Pleas, and others there mentioned, and before any other judge, though the matter concern the king. These latter words would, no doubt, warrant the resolution in the case of Castle v. Litchfield; for it is said, that no charter of exemption shall be allowed without these or the like words, licet tangat nos. But see Hardr. 189, where it is affirmed, that the exemption granted to the university hath not these words, licet tangat nos. And see the following authorities, by which it is held, in opposition to the case of Castle v. Litchfield, That

If a debtor and accountant to the king sues a scholar by bill in equity in the Exchequer, or if an attorney sues a scholar by writ of privilege, the universities shall not have conusance; for a general grant shall not take away the special privilege of any court.

Hard. 189; Wilkins v. Shalcroft, Lit. R. 304; Oxford Letters Patent, S. P.; 3 Leon. 149; The Lord Anderson's case, 2 Danv. Abr. 164. Welles v. Trahern, Willes, R. 233.

But in cases where privilege is allowable, a scholar, &c., cannot waive his privilege, and have a prohibition in the courts of Westminster, for the university by right has the conusance of the plea, where one is a privileged person; and a stranger is forced to sue a privileged person in their courts by reason of that right vested in them.

Cro. Car. 73, Wilcocks v. Bradell; Hetl. 28, Thomas Wilcock's case. This privilege was granted to scholars that their studies might not be interrupted by their being forced to attend suits in other courts.

But a scholar ought to be resident(a) in the university at the time of the suit commenced, and no other ought to be joined in the action with him; for in such cases he shall not have privilege.

Hetl. 28, Thomas Wilcocks's case. [(a) Actual residence must be certified by the chancellor, Hayes v. Long, 2 Wils. 310; and his certificate must be supported by affidavit. Paternoster v. Graham, 2 Stra. 810; 1 Ld. Raym. 428, S. C.; Boot v. Graham, 1 Barnardist. K. B. 49, 65.] See Thornton v. Ford, 15 East, 634.||

Though it is said that servants of the university are privileged, yet it has been holden, that a bailiff of a college was not capable of privilege. Brownl. 74, Carrell v. Paske.

But the claim was allowed when it was made on behalf of a proctor, a pro-proctor, and the marshal of the university, though the affidavit of the