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MICH. TERM,

26. CAR. 2.

WICKHAM, Clerk, against GREEN.

Suffolk, 19th November 1674.

The rector of THE bill ftated, that for ten years laft paft the plaintiff had Wilby, in Suf- been lawful rector and incumbent of the parish of Wilby, in folk, claims the county of Suffolk; and that the defendants, for feveral years, tithe in kind for had been proprietors, occupiers, and owners of several pastures the agiftment of cattle for fale, and feeding-grounds within the faid parifh, which they did, yearly and not reared and every year, feed and depasture with steers, heifers, cows, and for the ufe of other cattle not reared, brought up, or returned for or out of the

the dairy.

The defendant fets up a modus z and an iffue is

dairy, to be there fatted and fold, which were by them fatted and fold and returned accordingly, the herbages and tithes whereof, in every of the faid years, ought to have been paid to the plaintiff.

directed to try," whether there is a

a modus, that for every

The defendant ftated a cuftom of tithing within that parish. THE COURT directed an iffue to try," Whether there be a cuftom within the parish of Wilby that, time whereof the memory of man is not to the contrary, the occupiers of lands beaft "within the faid parish ought to pay to the rector of the said bought in to be" parish for the time being twopence by the year, and no more, fatted there for the year's feed of every beaft, fteer, or bullock, bought in fhould be paid to be fatted within the faid parish, for and in lieu, and in full "fatisfaction of the tithes of the herbage of the faid beafts, ❝fteers, or bullocks."

2d. a-year.

The venue to be

To be tried by a special jury of the freeholders dwelling within laid in Saint Ed- the franchife of Saint Edmund's Bury, and not in the guildable of the faid county.

mund's Bury.

At which trial

A trial was accordingly had, and a verdict found in favour of the defendants the defendants; but on the twenty-first of April 1675, the obtain a verdict; plaintiff moved the Court for a new trial; and THE LORD but the Judge CHIEF BARON, before whom the faid verdict paffed, declaring in therewith, a new Court his great diffatisfaction of the fame, a new trial was granted, nial is granted; upon the fifteenth of May, on the faid iffue, upon payment of cofts of the former trial.

being diffatis ficd

and the former

Upon the thirtieth of June following, the plaintiff moved the verdict ordered Court, that the faid verdict in favour of the faid defendants not to be given might not be given in evidence at the new trial, inafmuch as it in evidence. appeared to THE LORD CHIEF BARON that it was given contrary to evidence; and the Court accordingly ordered, that the poftea of the faid verdict should be stayed in the hands of the clerk of the affize.

On which new

A new trial was had; and after full evidence given on both trial a verd.&t is fides, a verdict paffed for the plaintiff; with which THE LORD given for the CHIEF BAKON, both at the trial and in court, declared himself plaintiff on fatiffactory evidence, fully fatisfied.

THE

against GREEN.

THE COURT, upon fhewing forth the poftea of the faid verdict, WICKHAM and being satisfied that there is no fuch modus in the faid parish for depafturing and feeding of cattle, as by the defendant's anfwer is fet forth, DECLARED, that tithes in kind ought to be paid And the Court for the fame, according to the value of the herbage; and DE- being fatisfied CREED the fame accordingly.

EDWARD TURNOR.
TIM. LITTLETON.
EDW. THURLAND.

VERE BERTIE.

WICKHAM, Clerk, against THROWER.

Suffolk, 19th November 1674.

that no fuch modus exifted, tithes are decreed in kind.

MICH. TERM, 26. CAR. 2.

THE 'HE bill ftated, that the plaintiff is, and for ten years paft The rector of hath been, lawful rector and incumbent of the parish of Wilby, in SufWilby, and for all that time had been entitled to, and ought to folk claims tithes in the following have had and enjoyed the tithes, and cuftomary duties and pay- manner : ments for tithes, within that parish, that the defendants, for one year, were proprietors and occupiers of certain farms and lands, and kept and depastured thereon cows for the dairy, and had calves therefrom fallen; that within that parifh there are, and had been, time out of mind, the customs and manners of tithing following:

FIRST, For every calf there, if under the number of ten, the The feventhcalf, feventh calf for tithe, the parishioner and occupier to be if under ten, alallowed twopence for every calf there wanted from the number lowing 2d. for of feven to the number of ten calves.

all wanting from feven to ten.

bove ten.

SECONDLY, That if there fall above ten calves, for every feventh The feventh calf calf above that number, the seventh calf, with such allowance to for every calf a. make up fuch seven calves to the number of ten; and in like manner for a greater number of calves fallen, the fame being titheable, one of every tenth calf fallen, without fuch allowance.

the

THIRDLY, That the faid tithe calf and calves were and are The faid tithe payable to the parfon there, and to be delivered at the parfon- calves to be deage-house, every calf that doth fall before our Lady Day yearly livered at at the age of seven weeks; and every calf yearly fallen after the faid feaft at the age of five weeks.

parfonage.

FOURTHLY, That every parishioner and occupier of lands Thirteen cheeses there, for and in lieu of lactage and tithe milk, have used to pay a year, in lieu of and deliver thirteen cheeses yearly, each cheese to be made of tithe milk. all the milk of the evening and of the morning following, of the evening flett and of the morning unfilett, as it cometh from the cow; the first cheese of the faid thirteen cheeses to be made upon the third day of May yearly, and in like manner upon every tenth day following yearly; feven of the faid thirteen cheefes to

be

against THROWER.

WICKHAM be delivered at the church or parfonage-houfe of Willy upon Saint Mary Magdalen's Day, and the remaining fix to be delivered at the fame place upon Holy Rood Day yearly. That the defendants refused to fet forth what calves they had fallen in that year, or to make fatisfaction for the fame; and for their tithe cheefes do fet forth other customs in prejudice of the plaintiff.

The defendants

are not to be

fonage,

The defendant Thrower answered, and confeffed, that the confefs the modus plaintiff was rector for the time in the bill mentioned, and as stated, except intitled to all the customary dues and payments for tithes there; that the calves that he was proprietor and occupier of the lands, and a farm, fent to the par- whereon he kept and depaftured feveral cows, from which he had calves; that he believed there had been fuch ancient cuftoms and manners for tithing of calves and milk, as in the bill fet forth, except only that the tithe of calves belonging to the parfon are not to be fent home to the parfonage-houfe by the occupier or proprietor, but to be delivered, at the time appointed by the custom, at the cribb of the parishioner, whither the parfon and as to the ought to fend for the fame; and alfo except that the thirteen milk of which cheeses are to be made of the milk of the day in the morning flett and in the evening next following unflett, and not of the evening flett and of the morning unflett, as in the bill is mentioned; that there is but one tithe calf due from him, which he kept for the plaintiff, and gave him notice of the fame; and that his tithe cheefes for that year were delivered, part in the chancel, and part to the plaintiff's wife in the church-porch ; that the cows were not milked at unufual hours, but at fuch times as they are ufually milked when a cheese is to be made for themselves, or at night.

the cheeses are to be made.

ther the tithe

The defendant Clowting put in the fame answer.

The question Upon opening the bill and anfwers, and hearing counfel, and between the par- reading the depofition of Dr. Ball taken in the cause, and on ties being, whe- debate of the matter, the difference between the faid parties calves fhall be touching the tithe calf appeared to be, that the plaintiff required delivered at the that the fame fhould be brought to the parfonage-houfe, whereas parfonage or at the defendants alledged that the fame fhould be delivered at the the cribb; crib; and that the difference about the tithe for cheeses was, that and whether the the plaintiff alledged that the fame fhould be made of the evencheefes fhould ing's milk preceding the tithing day flett upon the morning of be made of e- the tithing-day, and of the morning's milk of the tithing-day morning's milk, unflett, and the defendants alledged that the fame fhould be or of the morn- made of the morning's milk and evening's milk of the fame ing and evening day.

vening's and

milk made pre

ceding or on the tithing-day,

The Court de- IT IS ORDERED BY THE COURT, that for the future the tithe

creed the calves calves, as they come due, fhall be paid and delivered to the to be delivered plaintiff at his parfonage-houfe.

at the parfonage.

AND

145

WICKHAM

THROWER.

AND IT IS ALSO ORDERED, that, for the future, the tithe cheefes which fhall be yearly paid to the plaintiff, fhall be made of the againft evening's milk preceding the tithing-day flett up in the morning that the cheefes of the tithing-day, and the morning's milk of the tithing-day thall be made of unflett, according to the cuftom fet forth in the bill, and at fuch the milk of the hours and times as the cows are milked for the parties themselves preceding evenon other days not titheable, without fraud. ing and the enfuing morning;

AND THAT the tithe cheefes fhall be delivered, for the future, the cheefes deli at the parfonage-houfe of Wilby aforefaid, and not at the church-vered at the parporch or chancel of the church. fonage;

And whereas it is alledged, by the defendant's counfel, that and that touchthe plaintiff has commenced feveral fuits in the ecclefiaftical ing other tithes, court against the defendants, touching other titheable matters arifing within the said parish,

IT IS ORDERED BY THE COURT, that the faid matters in it fhall be refer difference in the ecclefiaftical court, and alfo the difference red to the chief touching the tithe calves and cheeses pretended to be due to the baron. plaintiff, for the time in the bill mentioned, from the defendants, be referred to the determination of the faid Dr. Ball, to end the faid matters in difference, if he can; and if he cannot end the fame, then the faid parties are to attend THE LORD CHIEF BARON, in order to the determination and compofure, of the faid differences, without costs on either fide.

EDWARD TURnor.
CHR. TURNOR.
TIM. LITTLEton.
EDW. THURLAND.

WIDDRINGTON, D. D. against BARKER.

Norfolk, 11th February 1674.

HILARYTERM 26. CAR. 2.

THI
HIS was a bill to be relieved for the tithes of Colefeed in The tithe of cole-
Terrington; the plaintiff being rector; the defendant feed is a great
Henfon vicar; and the other defendants inhabitants.

tithe (a), and fhall be paid to

The Court, after hearing counfel on both fides, and reading the rector, and the depofitions of feveral witneffes examined in the caufe, took not to the vicar, time to confider of the matter; and on the twenty-ninth of which it is fown. of the parish in April 1675, upon hearing counsel on both fides, and on full debate, and confideration thereof had,

THE COURT is of opinion, that the faid tithes of Colefeed are 29th April 1675, due, and ought to be paid to the plaintiff, being rector, and not to the curate or vicar; that the defendants Barker and others fhall fatisfy and pay to the plaintiff the value of the faid tithes of

(a) But fee the case of Fish v. Wimberley, 4th February 1683, 35. Car. 2. in which it is determined, that cclefeed is a small tithe.

VOL. I.

L

Colefeed

BARKER.

WIDDRINGTON Colefeed fown by them upon the lands holden in the faid parish for against one year; and that the faid defendants fhall not be fued, molefted, or difquieted for the fame by the defendant Henfon, the curate or pretended vicar of Terrington; and the plaintiff to have his taxed cofts.

EDW. TURNOR.

TIM. LITTLEton.

HILARY TERM

26. CAR. 2.

parish of Vauge,

tled to 2s. in the

TOOKER, Clerk, against GRIFFIN.

Effex, 25th January 1674.

The rector of the THE plaintiff, as rector of Vauge, in Effex, exhibited his bill touching the tithes of a moiety of marsh land called North in Effex, is enti- Bredward Marsh, within the faid parish. The bill after fetting pound yearly, forth his title and right to tithes, ftated, that the defendant had according to the poffeffed a marfh or ground called North Bredward Marb, in the annual rent paid faid parish, for fix years paft; that the faid marfh lies next to for fo much of the parish of Pitfey, and contains about eighty acres, and is Marsh as lies worth fixty pounds per annum; that during that time he had fed within the faid and depaftured the faid marfh ground promifcuoufly with breedparish.

North Bredward

ing and fatting cattle; that, in lieu of the tithes of the faid marsh, being fed with fuch barren cattle, the poffeffors thereof, by custom, used to pay two fhillings in the pound yearly, according to the yearly rent of the marih.

The defendant anfwered and pleaded; AND FOR PLEA SAID, that KING JAMES, being seised in fee of North Bredward Marsh, and of the tithes thereof, by his letters patents, dated the third of February, in the tenth year of his reign, did grant the faid marsh, and the tithes thereof, to F. Morris and F. Phillips, and their heirs; that they, by indenture dated the first of July, in the eleventh year of James the First, did grant, bargain, and fell the faid marsh and tithes to H. Archer and his heirs; who did, by indenture dated the twenty-fixth of May, in the eighteenth year of James the Firft, convey the tithes, rents, and profits of the faid marsh to Sir Robert Rich and several others, and their heirs, upon truft, as to the said tithes, and the rents and profits of the said marfh to be employed to the use of the vicar of Horndon towards his maintenance, fuch vicar, or fome perfon for him, preaching yearly one fermon in the church of Herndon, on Saint Peter's Day in the forenoon; and that as often as there should be a failure, it fhould go to the poor of the faid parish of Horndon; that the defendant is tenant to the furviving truftee for the faid charitable ufe under a yearly rent, and, as tenant, doth enjoy the fame, and for fix years past hath so done, under the yearly rent of forty pounds to W. Whitmore; that in the faid years he did depafture thereon beafts and sheep, but had no hay or corn off the fame, and that the value of the tithes yearly are about four pounds; that he knew not of any rate tithes, or compofition

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