KIRKBY againft REDHEAD AND OTHERS. MICH. TERM, 8. CAR. 2 17th Nov.1656. New trial granted. EASTER TERM 9. CAR. 2. 20th April 1657. Prefent, LAS and BARON IT WAS ORDERED by the Court, that the faid defendants shall forthwith pay to the faid plaintiffs the feveral fums certified due to him for tithe wool, and for the tithes, modules, and cuftomary payments for the year and time in the faid bill fpecified; andfhall from time to time refpectively pay the aforefaid modules decimandi, and ancient cuftomary payments and rate, and at the refpective times mentioned, and thall refpectively pay their respective tithes of wool in kind to the plaintiff for the time to come. In purfuance of the faid decree, an action was brought, and a verdict given for the faid plaintiff. Upon reading now the faid poftea, and hearing of counsel on both fides, and the defendant Redhead's counsel alledging the faid trial was had upon the plaintiff's evidence only, his witnesses not being prefent, and upon reading affidavits and hearing counfel, IT WAS ORDERED by the Court, that a new trial be had accordingly, upon the faid defendant paying to the plaintiff ten pounds cofts towards the last trial. A trial was had purfuant to the laft order, and a verdict again paffed for the faid plaintiff, that the meffuage, lands, and premifes of the faid defendant Redhead were not difcharged from payment of tithes as aforefaid, as by the poftea returned and produced in court appeared. The plaintiff's counfel then defiring that the tithes of the defendant's meffuages, lands, and premifes aforefaid, and other the payments and duties aforefaid, might be ordered. and decreed to be paid to the plaintiff in kind, or due fatisfaction for the fame, as by his bill prayed, and for a commiflion to enquire into the fame, and no counfel appearing for the faid defendant, IT IS THUS DECLARED AND ORDERED, &c. by the Court, that BARON NICHO- the faid tithes and duties of the lands, meffuages, tenements, and hereditaments in the faid defendant's poffeffion or occupation for the feven years in the faid bill mentioned, and in the faid answer set forth, are payable, and to be paid, in kind; and that the fame fhall be forthwith paid and fatisfied to the faid plaintiff as well for the time paft as for the future; and that a commiffion under the feal of this court fhall be awarded for afcertaining the fame. TRIN. TERM, 9. CAR. 2. In pursuance to the faid decree a commiffion iffued, and was executed, and returned into this court, Upon hearing counsel for 17th June 1657. the faid plaintiff and defendant, and reading the decree and return of the commiffion and proofs, whereupon the value of the tithes of his corn is proved but of fmall or no value, yet it evidently appearing that the faid plaintiff hath right to all the faid tithes demanded by the bill, IT IS ORDERED by the Court, AND DECLARED, that the faid plaintiff hath right to the tithes and duties of the meffuages, lands, tenements, and hereditaments, and other the premises in the faid defendants poffeffion or occupation, and by him enjoyed for feven years; and that all and fingular the faid tithes and duties are yearly payable and to be paid in kind from time to time; and that the faid defendant fhall duly fet forth and pay to the faid plaintiff all his tithes that have arifen and happened, or that shall hereafter arise and happen within the faid rectory and places aforefaid, in kind, from time to time, in the years in the bill specified, and for the future. NICHOLAS, Baron. PARKER, Baron. KIRKBY againft REDHEAD AND OTHERS. HARTOPP, Knt. against Tookey, Clerk, and Another. MICH. TERM, Leicestershire, 15th November 1655. 9. CAR. 2. rectory of Galby, THE HE bill fet forth, that whereas Matthew, then late Bishop of The penfion of Ely, was, in right of his faid bifhoprick of Ely, lawfully 31. 6s 8d. iffu feifed to him and his fucceffors of a yearly pension of three ing out of the pounds fix fhillings and eightpence iffuing out of the rectory of i in Leicestershire, Galby, in the county of Leicester; and that he, by indenture dated established. the 14th of December, in the fourteenth year of the late KING See Wragg CHARLES, did demife to the plaintiff the aforefaid penfion for Whalley, Eafter three lives; by virtue whereof the plaintiff was feifed, and for Term, 5. Geo.2. divers years received the fame of the then rector T. Tookey, the defendant's father; that afterwards, the lands and poffeffions of the late bishop being by ordinances of parliament vefted and fettled in certain trustees to be fold, the inheritance of the faid annual penfion was purchased by fome friends of the faid plaintiff for him; that nevertheless the faid penfion, for thirteen years paft, had been in arrear and unpaid by the faid defendant Tookey's father, and himfelf; the faid plaintiff not knowing of whom to demand the fame, the aforefaid T. Tookey having the perpetual donation of the said rectory, and having made feveral conveyances thereof to the defendant Whalley's late husband, who claimed a title thereto. The bill therefore prayed a difcovery and payment of the said pension, and the arrears thereof. The defendant Tookey answered, and confeffed that he was then rector there, but that in cafe the faid plaintiff had a right to receive the faid penfion, he was not liable to pay the fame, or any arrears thereof, for any longer time than he was rector there. The plaintiff replied; and the cause descended to iffue; and witneffes were examined. The cause came on to be heard this day. C 4 And HARTOPP againft TOOKEY ANDANOTHER. TRIN. TERM, 8. CAR. 2. Lands in Sten of tithes, as hav 422. And the Court DECLARED, ORDERED, AND DECREED, that the faid rectory, in whofe hands foever the fame is and remaineth, is liable to the payment of the faid penfion, and of the arrears thereof; and that the faid defendant Tookey, now rector of the faid rectory, fhall pay and fatisfy to the plaintiff, for the arrears of the aforefaid penfion due and incurred at the time of exhibiting this bill, the fum of twenty pounds, with five pounds for his cofts; and that the faid defendant fhall likewise pay and fatisfy to the faid plaintiff for the future, as the fame fhall grow due and payable during the time as he fhall continue rector of the faid rectory. 2. and Eaiter, and Geo. 3. Hil. STEELE, Chief Baron. STAVELEY against ULLITHORNE and Others, ningforth,in Ye THE bill fet forth, that the late KING JAMES being feifed in fee, in right of his crown of England, of and in the prebend bire, difcharged of Studley, belonging to the collegiate church of Rippon, and of ing belonged to all the tithes of wool and lamb arifing, &c. within the townthe Ciftertians. fields and territories of Stenningforth, parcel of and belonging to S.C. Stiles, 411. the said prebend, by his letters patent, dated the twenty-eighth of April, in the fixth year of his reign, did give and grant unto S. C. Hard. 101. F. Phillips and R. Moore and their heirs, in fee farm, the prebend See other caufes, of Studley, and all and fingular the tithes of wool and lamb arisMich. 6. Car. 2. ing, &c. within the townfields of Stenningforth, at the yearly and Hil. 16. Car. rent of twenty-fix pounds eleven fhillings and threepence; by 18. Car. 2. and Virtue whereof they became lawfully feifed of the faid prebend and Hil. 29 Geo. 2. of the tithes of wool and lamb; that they, by deed inrolled in the 20. court of common pleas within fix months after the date thereof, according to the ftatute, did grant, bargain, and fell unto Sir William Ingilby, Knight, and T. Ingilby, and their heirs (among other things), all and fingular the faid prebend of Studley, and the tithes of wool and lamb as aforefaid, who became lawfully feifed thereof to them and their heirs for ever; which faid eftate afterwards came to and was vefted in William Ingilby, nephew of Sir William Ingilby, and his heirs, who entered thereon, and became lawfully feifed thereof in his demefne as of fee; and being fo feifed, he, by indenture of demife, dated the tenth of October, in the eighth year of the reign of the late KING CHARLES, for the confiderations therein mentioned,demifed to Baffett Stavely, deceased, his executors, &c. all the faid tithes of wool and lamb, and all other tithes whatfoever, coming, &c. within the townfields and territories of Stenning/orth as aforefaid (the tithes of mines and quarries only excepted), to hold the fame for twentyone years; by virtue of which he entered into the faid tithes and premifes, and did receive and take a good part of the faid tithes ; that ULLITHORNE. that in May 1646 the faid Baffett Staveley died inteftate, poffeffed STAVELET of the fame; after whofe death the plaintiff had letters of admi- againft nistration granted to him, and as adminiftrator became poffeffed of the faid leafe for the remainder of the faid term; that the defendants for the laft feven years, living within Stenningforth, had fubtracted their refpective tithes, of which part was due to the plaintiff as adminiftrator. The bill therefore prayed an account Prayed an acof their tithes of wool and lamb, and a recompence for the fame. count of wool The defendants anfwered, and faid, that they are and ought to be cleared and difcharged by law for their refpective lands and tenements of the payment of any tithes ; for that the lands they refpectively stand feifed of to them and their heirs, were parcel of the poffeffions of, and were belonging to, the Abbot of Fountaines, and were vested in that abbey before the fecond council of Lateran; which abbey was of the Ciftertian order; and that all the lands and poffeffions of the faid abbey, coming to the crown by a ftatute made in the thirty-first year of Henry the Eighth, were and ought, by the faid order and statute, to be discharged of and from the payment of all manner of tithes in the owner's hands, in as large and ample manner as the abbot held the fame discharged; and that, the faid defendants claiming and deriving their title from the crown, the inheritance of the faid lands, by force of the faid order, ought to be difcharged from payment of all tithes for thofe lands during fuch time as they hold the faid lands in their own hands and poffeflion; that although the defendants, the Ullithornes, did pay their tithes to the faid Baffett Staveley for fome two years, yet if they ought to be discharged, thofe payments have not prejudiced thein, as they conceive; and that the defendant Atkinfon did never pay any tithes. The plaintiff replied; the defendant rejoined; and witneffes were examined on both fides. Upon opening the pleadings, and on debate of the matter, IT IS ORDERED by this Court, that, as concerning the difcharge infifted on by the defendants, it shall be referred to a trial at law upon the ufual terms; the illue to be, whether the meffuages, lands, and grounds the defendants hold in Stenningforth, parcel of and belonging to the Abbey of Fountaines, be discharged from payment of tithes by the Ciftertian order, in fuch manner as the fame is fet forth in the antwer, or not? and lamb. Which trial was accordingly had, and a verdict thereupon TRIN. TERM, paffed for the defendants. 9. CAR. 2. 15th June 1657. In pursuance of an order dated the tenth of February, a new 10th Feb. 1657. trial was granted, to be had at the bar of this court, by a jury of the STAVELEY of the county of York; which trial was also had, and a verdict given for the defendants (a). against ULLITHORNE. HILARY TERM 8. CAR. 2. The tithes of lands blished. The cause coming on for further directions, upon reading the faid orders and verdicts, the counsel for the defendants defiring that the bill might be difmiffed, IT IS ORDERED by the Court, that the faid bill, and the said defendants, be abfolutely difmiffed this court. (a) The action appears to have been debt on the statute 2. Edw. 6. c. 13. S. C. Stiles, 411. 422.; and the Court was of opinion, that the order of the council of Lateran, which freed the Ciftertian order from the payment of tithes, was a general law received in England; and, if these lands were discharged of tithes from the time of that council, that no after covenant or contract made by the abbot to pay tithes could difpenfe with this privilege, or make them liable to tithes; for once discharged by this council, and always discharged; for this council is as forcible as an act of parliament, which concludes all parties and the Court were also of opinion, that if there were any such agreement for payment of tithes before the council, yet this council, as a general law which includes all men's confent, had diffolved it, and the lands were dif charged. S. C. Hard. 101. STEELE, Knt. and Others, against HITCHCOCK and lying TH Wiltshire, 29th January 1656. HE bill fet forth, that the plaintiffs, by two several acts of parwithin the Foreft liament and an ordinance, became feifed, amongst other of Savernack, in things, of all the tithes within the foreft of Savernack, lately Wil fire, efta- belonging to the late Dean and chapter of Sarum; and that the defendants, being poffeffed of divers arable lands, meadows, and paftures within the faid foreft, have refused to pay their great and fmall tithes to the plaintiffs; the defendant Hitchcock claiming the fame. The bill therefore prayed a discovery of the values and tenths; an account and fatisfaction for the fame; and to quiet the plaintiffs in the receipt of the faid tithes. The defendants Gamon and Sarvyer anfwered, that they were for two years occupiers of land lying in Savernack Park, which is next adjoining to the faid Foreft of Savernack, and do believe it hath been anciently accounted parcel, and within the liberty of the faid foreft; and that for the tithes of all the faid lands, other than fuch lands as are not chargeable becaufe of improvement, having been barren lands, for feven years not yet expired, they have compounded with the defendant Hitchcock, the owner of the parfonage of Prefbutt, within which parifh the faid lands are reputed to lie, and had paid him the fame. The defendant Hitchcock confeffed the receipt of the several fums of the faid defendants, and averred that he hath good title thereunto, as farmer, for the term of his life, of the rectory of Prefbutt, within which parish the faid lands lie, by lease, dated the twenty-seventh of July's 4 |