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AND OTHERS.

SCUDAMORE Court, as to the faid bill, and all and every the matter and things against therein contained, without prejudice nevertheless to the plaintiff, PEMBERTON his executors, or affigns, to fue for and recover the arrears of the modus due for the faid house and ground late Sir Simon Baskerville's, from the faid defendant, and other the perfons liable to the payment thereof; the other perfons liable with the faid defendants to the arrears of the modus not being made parties to this fuit, if the plaintiff, his heirs, or affigns, fhall think fit to fue for the fame (a).

(a) It appears from the Book of Decrees and Orders, that the plaintiff did file another bill against the defendants Sir Francis Pemberton and others; that the caufe came on to be heard on the 22d May, 31. Car. 2.; that the defendants' counfel infifted, that the defendant J. Marshall's house was dif. charged from the payment of the two fhillings and nine perce in the pound, by reafon of an ancient cuftomary fum of nine fillings and fourpence, payable yearly in lieu of tithes for the said house. On which the Court directed two iffues, FIRST, Whether the faid fum was payable for the faid houfe in lieu of tithes ; SECONDLY, Whether two fhillings and ninepence in the pound, according to the annual rent, was payable to the vicar for the faid house, or not; and upon full ev dence on both fides, the plaintiff was nonfuited, and a new trial granted; on which tria', before THE LORD CHIEF BARON, the plaintiff, after full evidence, was again nonfuited. On which it was finally ordered, on the 27th October 1681, in Michaelmas Term, 33. Car. 2. that the defendant Marfhall be difmiffed from the faid bill, and the matters and things therein contained. The defendant Marfball died; and on the 9th June 1684, 36. Car. 2. the plaintiff Scudamore filed a bill against his widow for the recovery of the two fhillings and ninepence in the pound, pursuant to the itatute 37: Hen. 8. c. 12. The widow

WM. MONTAGU. THO. RAYMOND. EDW. ATKYNS. WM. GREGORY.

pleaded, that the house was fituated in Fetter Lane, and, having been burnt down, was re-erected on ground time out of mind belonging to the converted Jews, called THE ROLLS, which is fituated between Chancery Lane and Fetter Lane; that the faid ROLLS is a liberty itself, and not in the city of London, but exempt from the fame, and a chapelry of itself; that the faid houfe of converts, now called the Rolls, was and is an ancient ftructure or building, and was a religious house or monaftery time out of mind, and was, long before the 37. Hen. 8. c. 12. and decree, anciently appointed and appropriated to and for the reception, inftruction, and mainte nance of fuch Jews and infidels as were converted to the Christian faith; and that, time out of mind, it has been exempt from tithes Two iffues were directed to try, FIRST, whether the house was within THE ROLLS; SECONDLY, whether the ground on which it was built is in London or Middlesex ; but the parties never went to trial, and it came on again on the equity referved; and the Court, on infpecting many grants from the crown to feveral perfons mafters of the rolls, and other records, declared, that the houfe ought not to be charged with any tithes to the vicar of Saint Dunstan's by the ftatute 37. Hen 8. c. 12. or otherwife, no tithes ever having been paid for the fame. See alfo Bennet, Trepafs, Bunb. 106.

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193

HARTLEY and Others against GEY.

Lancashire, 3d July 1679.

TRIN. TERM,

31. CAR. 2.

the vicar only,

yet if it appear

curates of cer

cree it to be a

THE plaintiffs were curates of the feveral parochial chapelries If, in a leafe of a within the rectory of Whalley, in the county of Lancafter. rectory, the Eaf. The defendant was vicar of the parish of Whalley. ter roll and furplice fees be reThe bill ftated, that the rectory and titheable places within the ferved, and faid parish are part of the poffeffions of the Archbishop of Canter-made payable to bury, and of great extent and yearly value; that the vicar of Whalley, and the curates, being but flenderly provided for, the to have been the vicar not having above forty pounds a-year falary, and the intention of the curates only eleven pounds, Mr. Moore, the late vicar, and all leffor that the the curates, did, foon after the restoration, petition Dr. Juxton, tain chapelries the then Archbishop of Canterbury, for an augmentation to their fhould receive at falaries; and the curates, being ten in number, having paid the proportion of the vicar twenty pounds, he prefented the petition to the Archbishop, fame, a court of who promifed, that when Sir Ralph Ahton, his tenant, renewed equity will de his leafe of the rectory, he would referve the Eafter roll (being truft for the cucuftomary payments at Eafter yearly), and the furplice fees at rates, and order chriftenings, marriages, churchings, and burials, for the vicar trustees to be apand curates, which were valued at one hundred and twenty pointed accord. pounds a-year, but that they are not worth fo much; that Sir Ralph Afton afterwards renewed his leafe, and the Archbishop referved to himself and his fucceffors the faid Eafter rolls and furplice fees, to be received by the vicar, without mentioning the curates in the leafe; but he declared, that the vicar fhould only have forty pounds a-year out of the fame, who was contented therewith, and the remainder was proportionably divided amongst the curates, who enjoyed the fame for fome time after the defendant became vicar of the faid parifh; but that the vicar having procured a copy of the faid leafe, and not finding the curates mentioned therein, refused to pay the fame. The bill, therefore, prayed to be relieved, and to have a decree for the payment of the fame for the future, and for the arrears.

The defendant pleaded a release of the matter in question from the plaintiff Banks; but, on hearing, he was ordered to anfwer.

The defendant accordingly answered, and denied most part of the bill; but confeffed, that in the year 1663 he became vicar, and received to his own use all the Eafter roll and furplice fees, as in the leafe are mentioned and referved to him..

The plaintiffs replied; and iffue being joined, witnesses were examined.

THE COURT, upon opening the pleadings, and hearing counsel, and reading feveral depofitions taken in the caufe, and on debate VOL. I.

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HARTLEY against GLY.

of the matter, declared, that the truft is well proved, and that there was a truft in the vicar, by Archbishop Juxton, who gave the augmentation of the Eafter roll and the furplice fees for the curates of the feveral chapelries of Burnly, Haflingdon, Colne, Clitheroe, Downham, Altham Church, Kirke, Padcham, Roffindell, and Pendell, over and above forty-two pounds thereof to make up the vicar's thirty-eight pounds, eighty pounds a-year, and the reft to be diftributed amongst the curates of the faid feveral chapelries, who were to provide themselves their own common wine for their respective chapelries; and the vicar was to be discharged thereof.

And it was thereupon ordered by the Court, that the faid truft be, and is hereby confirmed; that the defendant fhall forthwith grant and affign to fuch pèrfon or persons as the curates, or the major part of them, fhall think fit, all the faid Eafier roll and furplice fees within the rectory and titheries of Whalley, under a truft, that the grantees or affignees fhall pay to him, the defendant, and his fucceffors, forty-two pounds a-year out of the fame, clear, without any charge of communion wine, or other charge whatever; and that the reft be divided amongst the curates, for the time being, proportionably; that the faid defendant fhall pay to the plaintiffs, the curates, their feveral proportions of the mefne profits, after the rate of forty fhillings a piece yearly, from the feveral times of their respective admittances, without cofts, to fave further charges; but in default, it is referred to the auditor of the faid county to certify the fame; and the plaintiffs Hargraves, Phillipfon, and Banks, who were parties to the fuit, and afterwards ftruck out upon their paying their fhare of the cofts of the fuit, are to receive their proportions; and it is ordered, that cofts fhall be fufpended till the auditor fhall have made his report.

WM. MONTAGU.

THO. RAYMOND.
EDW. ATKYNS.

W. GREGORY,

TRIN. TERM,

31. CAR. 2.

The vicar of TH

Alderminster, in

claims the tithes

SWAN against STANLEY; et è Contra.

Worcestershire, 30th June 1679.

HE plaintiff, as vicar of the parish-church of Alderminster, in the county of Worcester, ftated, by his bill, that, for twenty Worcester fb.re, years paft, he had been vicar of the faid parish, and was entitled of grafs and to, and ought to have received, predial tithes of grafs and hay, and hay, and the all fmall tithes there arifing; that there is a cuftom within the fmall tithes of faid parifh, that if any inhabitants buy in theep before Candlemas, the faid par fh; and fell them before the next fhearing-time, the owner is to pay special manner to the vicar a halfpenny a fheep for every fheep fold; that if any

and fets forth a

of tithing.

owner

owner fell any ewes and lambs kept there before Holy Rood Day, the owner is to pay to the vicar a halfpenny for every ewe, and a halfpenny for every lamb fo fold; that if any owner fell fheep between Candlemas and Midfummer, the vicar is to have a halfpenny a sheep.

SWAN againf STANLEY;

et è Contra.

fmall tithes in

The defendants anfwered, and confeffed the plaintiff to be The defendants vicar of the parish, and entitled to the tithes of wool, lamb, admit his title to calves, pigs, pigeons, apples, pears, hens, turkeys, geefe, hemp, the town and and flax, arifing within the town and the common fields there, common fields; according to the cuftom of tithing there used time out of mind, but fay, he is but whether in all the parifh they knew not; nor did they not entitled to believe that he ought to have the predial tithes of grafs and hay grafs and hay, within the faid parish, for that the vicarage was not endowed therewith; but they confeffed, that he had received the tithe

the tithes of

hay arifing on their feveral farms; but denied that he was enti- or of furze and tled to the tithe of furze, or lops of trees, for that the vicarage is the lops of trees; not endowed thereof, nor were fuch tithes demanded till of late

ferent custom as

years. They further stated, that in recompence of what fuel they that they pay a burnt in their houses, they have paid to the vicar a penny called moke penny in lieu of wood for fuel; a fmoke penny, according to the cuftom there ufed time out of mind. They confeffed alfo, that there were fuch cuftomary and state a difpayments for fheep, as in the bill are mentioned; and faid, that to sheep, &c. there is a custom to pay the vicar a farthing a fheep for every sheep agisted in the common fields there; and one penny a cow for every milch cow kept there, as a rate in lieu of tithe milk, and for calves, if the owner have feven, the vicar is to have the feventh, paying the owner three halfpence; if under seven, the vicar to have half a calf; if ten, the vicar to have the tenth in kind; which rates the plaintiff and his predeceffors had or ought to have obferved.

The cross bill fet forth, that the plaintiffs were landholders The defendants of feveral farms in the faid town and common fields of Alder- file a cross bill, ftating certain minster; and that there had been several cuftoms there, time out cuftoms, and of mind, obferved, THAT IS TO SAY, that for such fheep as were infist such cuf. bred in the common fields, and not wintered there, the vicar toms ought to be obferved, and to have only half tithe wool thereof; and for such sheep as were not thofe ftated brought in after Candlemas, and fhorn there, the vicar to have a in the original halfpenny a sheep; and for fuch fheep as were agifted in the bill. common fields there, the vicar to have a farthing a fheep; and that such rates were in lieu of tithe wool; that for tithe calves, if the owner have seven, the vicar to have one, paying to the owner three halfpence; if under feven, the vicar to have half a calf; if ten, to have the tenth in kind. That for fuch milch cows as were kept in the common fields he is to have one penny a cow, and fo for every milch cow, as a rate for tithe milk. That every housekeeper ufed to pay a penny at Eafter, called a Smoke penny, in lieu of tithe for the fuel they burnt in their houses; and twopence for offerings for man and wife; which customs 02 have

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SWAN

against STANLEY;

et è Centra.

The plaint ffan

n. t in

have been obferved by the vicars there, but were by the prefent one refused, who endeavoured to abolish the fame, and fet up other cuftoms; that, notwithstanding, they had paid the vicar all his tithes, as in their answer is fet forth: therefore they prayed relief in the premises, and that the customs might be confirmed by the decree of this court.

The defendant anfwered, and confeffed there might have iwers the er fo been fome fuch ufages for tithing for fome years; but faid, that bill, and fays, the fame had not been obferved time out of mind, and that the the jmele penny is Leu of penny paid as a smoke penny is not paid in lieu of what fuel they burnt in their houfes. He denied that he endeavoured to destroy the ancient customs, but fubmitted to the fame when proved; and faid, that there were good lops of trees and quantities of furzes, which the plaintiffs fold, for which they had not paid tithes.

fuel.

Ecth caufes heard.

The

In both which caufes iffue being joined, feveral witnesses were examined on both fides; and the caufes brought to a hearing on the twenty-fixth of June 1673, when they were referred; but the parties not agreeing, they came this day for the opinion of the Court; and after long debate of the matters complained of by the vicar,

plaintiff THE COURT did not fee caufe to relieve him upon any of made no ground them, but doth this day order and adjudge, that the said bill be, for relief. and is hereby abfolutely difmiffed, yet without costs.

But, the Court ettablish

toms, and crder

after

by the vicar.

And for that the Court was fatisfied with the proofs now read, that there are, and have been fuch customs for tithing ufed, time out of mind, within the faid parish of Alderminster, as the plaintiffs in their crofs bill have fet forth,

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED BY THE four COURT, that the cuftoms mentioned in the faid cross bill, and different cufcut hereafter recited, that is to fay, FIRST, The custom for paying to them to be here- the vicar of Alderminfer for the time being, at Lammas Day obferved yearly, a farthing a fheep for every fheep agifted in the common fields of Alderminster, in lieu of tithe wool ;-SECONDLY, The cuftom for calves, that if the parishioner have feven calves, the vicar is to have one, paying to the owner three halfpence; ìf under feven, the vicar to have one halfpenny for each calf at Lammas Day; and if ten, the vicar to have the tenth calf in kind;-THIRDLY, The custom for milch cows, that for every milch cow kept in the faid common fields, the vicar to have yearly one penny for each cow, in lieu of tithe milk, to be paid at Lammas Day;-FOURTHLY, The custom that every housekeeper fhall pay a penny at Eafier yearly, called a fmoke penny, in lieu and fatisfaction of tithe for the fuel burnt in their respective houfes, fhall be, and are hereby established and confirmed to be for ever hereafter obferved by and between the faid vicar and

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