ΚΕΝΤ againft PETTIVER AND OTHERS. A new enjoyed by the vicar as aforefaid; and as to THE SECOND ISSUE, a verdict paffed for the plaintiff against the modus. The caufe came on the thirteenth of February 1691 upon trial the equity referved, when the plaintiff's counsel prayed a new prayed, but re- trial upon the first iffue, which the Court did not think fit to fufed. The defendants difmiffed as to the tithe hay in the common fields; and ordered to in kind for the grant. But, upon reading the decree and poftea, ordered and adjudged, that as to the matter of THE FIRST ISSUE found for the defendants they be, and are hereby difmiffed, with their costs only from the time of their anfwers, in regard thereby they have confeffed fome duties due to the plaintiff, which are decreed to be paid to the plaintiff by the faid recited order, and are not avoided by the faid trial. And as to the tithes of the inclofed grounds, called the Lady pay tithes of hay Roufe's Inclosures, and the meadow grounds thereto belonging, for which the defendants Bafeley and Goodwin pretend a modus of thirty fhillings a year, in difcharge of tithes, for which a verdict paffed for the plaintiff, Inclofures. Cofts. MICH. TIRM, 1.WIL. & MAR. It is ordered, that the defendant Bafeley fhall pay to the plaintiff for his tithes, for fo much of thofe grounds as were occupied by him for the time demanded by the bill, the fum of ten fhillings. And that the faid defendant Goodwin is to pay twenty fhillings for his tithe, and that the plaintiff is to have his cofts against the defendants Baseley and Goodwin. BULLIN against BRECKNOCK. Lincolnshire, 21 November 1690. The tithes of THE HE plaintiff was farmer of the tithes of the impropriate wool, lamb, rectory of Wefton in Holland, in the county of Lincoln. The corn, and grain, defendant was vicar of the vicarage and parish church of Weston. with certain ex- The scope of the bill was to have a difcovery refpecting the tithes to the impropri- of corn and grain, wool and lamb, which the defendant in several ator of the rec- years had renewing and increafing in and upon the feveral tory of Wefon in grounds by him farmed and held within the faid parish of WefHolland, in the ton, and to have fatisfaction of the defendant for the fame. ceptions, are due county of Lin cols, and not to the vicar. The defendant by his anfwer claimed tithes of wool and lamb, as belonging to him in right of his vicarage, by virtue of an ancient endowment, made in the year 1280, and, as to the tithe of corn, he alledged that he and his predeceffors, vicars of Wefton, had all along paid a rent or penfion of thirteen fhillings, and fourpence, a-year to THE CROWN in lieu thereof; and by means thereof they had been exempted and discharged of and from payment of any manner of tithes of fuch corn and grain of what kind or nature foever, which they fowed fowed or reaped within the faid parish only for the maintenance of their families. Upon reading the depofitions of the feveral witneffes examined on both fides, and alfo the endowment mentioned in the anfwer, and an account of the bailiff and collector of the revenues of the poffeffions of the late monaftery of Spalding, in the thirty-fecond year of Henry the Eighth, and a leafe made by the prior and convent of the faid monaftery, in the twenty-fourth year of Henry the Eighth, to Sir John Poynton, prieft of the vicarage of Wefton, with the tithes thereto belonging, during the life of the faid Poynton, wherein the tithes of corn and line of the parishioners only, and tithe wool and lamb, are excepted; and forafmuch as the ufage and custom for the payment of fome of the tithes in Wefton hath gone contrary to the endowment, BULLIN agains BRECKNOCK. THE COURT was of opinion, that the tithes of corn and grain, wool and lamb (except as after-mentioned), are due and payable to the impropriator of Wefton, and not to the vicar; and thereupon ordered and decreed, that the defendant fhall account with and fatisfy the plaintiff for the value of all fuch tithes of corn and grain, wool and lamb, as the defendant hath had renewing, &c. upon the grounds by him farmed, held, and enjoyed within the parifh and the titheable places thereof. not being glebe lands, belonging to the vicarage, except the odds of wool and lamb, viz. under feven lambs and under feven fleeces, and alfo The tithes to except the tithe or other compofition ufually paid of and for which the vicar hay, barren and other cattle fed and depastured within the faid is entitled enuparish of Wefton, as well by the parishioners of the said parish, as by ftrangers and foreigners, and alfo except the tithe of cole feed, hempfeed, and flaxfeed, calves, foals, orchards, gardens, fruit, roots, herbs, milk, honey, eggs, and all other small tithes yearly arising and renewing within the parish; which feveral tithes of and for the faid odds of wool and lamb, hay and pasture ground, fed as aforefaid, colefeed, mustard feed, &c. &c. have, as it appears, for feveral years last past been paid to the vicars of Wefton, and fo ought to be paid to the faid defendant. ROBT. ATKYNS. JOHN TURTON. DUMMER against WINGFIELD. 1 THE plaintiff, as rector of the rectory and parish church of Hardwick cum Weeden, in the county of Bucks, ftated, by his bill, that for twenty rears paft he had been rector thereof, and VOL. I T Weeden, in the county merated. 1. WIL. & MAR. The manner in which the tithe in the parish of of sheep are paid Hardwick CUB of Bucks. entitled to all tithes and duties arifing within the fame; that within the faid parish great numbers of fheep have been usually kept, wintered, and fhorn, the tithe of the wool whereof ought to be paid to the rector; that the parishioners, for the conveniency of keeping more sheep than they wintered, did frequently make an addition to their winter flock by bringing in fheep after Lady Day, which they alfo fheared; for which fheep fo brought in after Lady Day they pretended that they ought not to pay tithes in kind, but a rate tithe of fourpence a score for each week they were kept before fhearing time, in lieu of tithe wool; but that of right, and alfo by cuftom, tithes in kind of all wool fhorn within the parish was due to the rector, or at least for all wool fhorn from the sheep which were within the parish at Candlemas Day, or which were brought in after Candlemas Day, and before May Day, and there fhorn; that in order to know the number of theep in the faid parish, there were anciently two views or tales, the one about Candlemas Day, and the other about Lady Day yearly, which were made by the parishioners on the one fide, and by fome person on behalf of the rector on the other; that the defendant's late husband was an inhabitant and occupier of lands and tenements, and kept a large flock of sheep, and had a dovehouse, wherein were bred a great number of pigeons; that from fhearing time in the year 1685 he kept great numbers of fheep till about Christmas; and, to defraud the plaintiff, then fold the fame, and took in great numbers by agiftment, or otherwife made profit thereby during the winter season, and until and after Lady Day, and then brought in divers fheep, which he shore about June, in the year 1686, for which he ought to have paid tithes in kind; and alfo a pafturage tithe for his fheep foid before Chrifimas, or taken in by agiftment; but that he refused to pay the fame, as alfo to pay tithes for his pigeons for the year 1675, and for the following years, until the year 1682; that about Auguft 1686 he died, and that the defendant, as adminiftratrix, poffeffed herself of, and entered upon, his real estate in the faid parish, and has ever fince enjoyed the fame; that in the year 1686 fhe kept, from fhearing time till Allhollontide, or Christmas, two hundred sheep, and as many more in 1687, and had near two hundred sheep fhorn within the faid parish in each of the faid years, and had also two hundred fheep more fhorn there in 1688, and kept the like number of fheep in each of the faid years, from shearing time till Allhollontide, or longer, until they were fatted, and did then fell and difpofe thereof, and delayed buying in any more sheep until after Lady Day in each of the faid years, on purpose to defeat the plaintiff from receiving any tithe wool in kind for the fame, and made great profit to herself by agiftment of other fheep, and by letting out her winter commons to others, and by fuch and the like contrivances refufed to pay any tithe wool in kind, or any other tithe, than only fourpence a month for cach each score of sheep depastured within the faid parish between Lady Day and fhearing time, which is ufually only about three months in the year; whereas the faid rate tithe of fourper.ce a fcore by the month ought to extend to the fheep brought into the faid parish yearly after Lady Day by fuch parishioners only that kept winter ftock of fheep therein; that the faid defendant alfo kept on the faid farm in the year 1687 ten cows, the tithes whereof, with the defendant's Eafter offerings, amounted to fixteen fhillings, which the defendant alfo refused to pay. The bill therefore prayed a discovery of the quantities and values of the tithes due to the plaintiff from the defendant, and alfo her late husband, for feveral years paft, and a fatisfaction for the fame. DUMMER againft WINGFIELD. The defendant answered, and faid, that the custom for paying The defendant's tithes for sheep is, that for all sheep depastured within the faid anfwer. parish on Candlemas Day, and there fhorn, tithe wool is due in kind to the rector; that if fuch fheep are taken out of the parifh before fhear day, yet the rector is to have the value of every tenth fleece paid to him by the owner, the rector repaying the owner fourpence a fcore for each month fuch sheep are taken away after Candlemas Day, and before fhear day yearly; that for all theep brought into the parish at any time after Candlemas Day yearly, and before the fhear day following, whether fhorn there or not, fourpence a score, and no more, is due from the owners for every month they are kept there, from Candlemas Day yearly, to fhear day following, in lieu and full fatisfaction of the tithe wool of fuch sheep, and that no tithe fleece ought to be paid in kind, whether the owners keep any winter stock or not; that the knew not of any other rate tithe for the depafturing of sheep within the faid parish, or for the wool of fuch sheep, and believed there was no other, for that the parishioners keep their sheep there only for the improving their arable land, whereby the plaintiff's tithe corn is encreafed, and do not fat their fheep. She confeffed, that for distinguishing what sheep were wintered in the parish, and what were brought in after Candlemas Day, there was anciently a general view or tale taken by the parfon and the parishioners of the sheep there on Candlemas Day, but denied that there were anciently two views or tales, or any other view than as aforefaid. She alfo denied, that the rate tithe of fourpence a score a month, extended only to fheep brought into the parish after Lady Day or May Day yearly, and before fhear time, and said that it likewife extended to the sheep that are brought in between Candlemas and Lady Day. She alfo denied that the parishioners are obliged to keep full winter ftocks, or that, by any custom, they are obliged to buy in fheep but at their free will and pleasure. She faid that her husband died in August 1686; that the poffeffed herself of his perfonal estate as adminiftratrix, and had affets fufficient to pay the plaintiff's demand; DUMMER against that about Lady Day 1686 he bought in one hundred fheep, and foon after fhearing them he died, for which fhe offered the plainWINGFIELD. tiff fourpence a score per month, but that he refused to accept the fame. She faid, that the believed that all other tithes due from her husband were paid to the plaintiff; that the difpofed of the faid sheep before the end of November following, but conceived no tithe was due from and after the fale thereof; that she kept no fheep till Lady Day 1687, and then fhe bought in one hundred and fifty, which the fheared, and offered to pay the plaintiff the rate tithe of fourpence; that before Candlemas 1687, fhe bought in feventy-eight fheep, and no more, which the fheared, and offered eight fleeces to the plaintiff, which he refused to accept of; that after Candlemas Day fhe bought in fixty-fix, and kept the fame till fhear day, and fheared the fame, and offered the plaintiff the rate tithe of fourpence, which he alfo refufed, that the paid the plaintiff the tithe of her cows, except for the laft year, when he kept ten cows, for which there is due by custom one fhilling and fixpence for each cow, and for her Eafter offering twopence. That the hath had fifteen dozen of pigeons, whereof, or of fo many of them as fhe had fold, fhe computed the tithes to be three fhillings. She faid, that he was always ready to pay her faid tithes and duties, and doth offer to pay the fame, and denied that she refused to pay the fame; and faid that what sheep the fold were not fatted, but fold to the grazier. The plaintiff replied; the defendant rejoined; and witneffes were examined on both fides, On the twenty-feventh day of January laft the cause came on to be heard; and on reading the depofitions of feveral witneffes, it appeared to the Court, that the rate tithe of fourpence a score per month, which the defendant doth by her answer insist upon to be the custom of the said parish, payable to the rector there in lieu and full fatisfaction of tithe wool, extends only to the fheep bought in after Candlemas Day, and for fo long time only as fuch fheep are kept in the faid parifh between Candlemas Day, and fhearing day, and extends not to the times fuch sheep are kept in the faid parish from and after shearing day till the fame are fold, which is a confiderable part of the year; and for which the Court was of opinion, that tithes were due to the plaintiff for the herbage and feeding of the sheep. It was therefore ordered and decreed, that the defendant fhould account with and fatisfy the plaintiff for the faid rate tithe of fourpence a score per month for all the fheep brought into the faid parish, either by the defendant's late husband, or by her after Candlemas Day, and before fbearing day in the faid year, and for the value of the tithe herbage and depafturage of the fame theep, or of any other fheep kept and depaftured by the defendant |