WALMER againft HANFORD AND OTHERS. The defendants refufe to try Decreed to ac- The plaintiff replied; the defendants rejoined; and witneffes were examined on both fides. On reading feveral depofitions taken in the cause, and on long debate of the matter, the defendants refufing to try at law, whether Comberton Hill be within the faid parish of Great Comberwhether the Hill ton, or not, and fubmitting to account for the fmall tithes arifing is in the par.fh. thereon, and other premifes and places in their poffeffions; IT IS ORDERED AND DECREED, that the defendants fhall feverally account for and pay to the plaintiff their several small tithes and tithes of hay and herbage, which have grown due and arifen upon Cemberton Hill aforefaid, and on other the feveral and refpective lands and premifes in their feveral poffeflions, being within the faid parish of Great Comberton, and the titheable places thereof; and it is referred to the deputy remembrancer to take the faid account. Jmell tithe of Comberton Hill. The bill difmiff ed as to the rector's right of com mon. And iffue di rected to try the rector's right to the great tithes. Verdict for the And THE COURT not being fatisfied by the proofs in the caufe, that the plaintiff hath any right to have common of pafture upon Comberton Hill, it is ordered, that the faid bill, as touching the common of pasture on Comberton Hill, fhall be, and is hereby difmiffed. And as touching the tithes of corn and grain arifing within the faid parish of Great Comberton, it is ordered by the Court, that it be referred to a trial at law, upon this iffue, "Whether "the plaintiff, as rector of the parifh aforefaid, be entitled, "in right of his faid rc&tory, to the tithes of corn and grain "within the faid parish of Great Comberton and the titheable "places thereof, or to any and what part of the faid tithes, or "not?" In pursuance of the above order, a commiffion issued to examine witneffes touching the faid account, and the deputy made his report, dated the eleventh day of July inftant. And in further purfuance of the faid order a trial was had defendant Har- of the faid iffue, touching the tithes of corn and grain, wherein ford. a verdict paffed for the defendants the Hanfords. 15th July 1693. Report confirm. ed, except as to 4d. for garden. The caufe came on upon the equity referved; and upon reading the faid decree and report, with an exception taken by the defendant D. Hanford, touching the fourpence charged upon her by the faid report, for her garden and Eafter dues, and alfo reading the poftea; IT IS ORDERED AND DECREED, that the faid report fhall be, and is hereby ratified and confirmed in every particular, faving the fourpence reported to be due from the defendant D. Hanford, to which fhe had taken an exception which is hereby allowed, and fhe is hereby difmiffed of and from the faid bill with cofts. AND AND IT IS ORDERED, that the defendants Fort and Sole fhall forthwith, upon fight of this order, or a true copy thereof, pay to the plaintiff or his affignee two pounds, eight fhillings, fo reported to be duc from them to the plaintiff for tithe herbage of ground called Comberton Hill. WATMER against HANFORD AND OTHERS. and Sole to pay tithe herbage of. Comberton Hill. And IT IS ORDERED, that the defendant Drinkwater pay Drinkwater to the faid plaintiff thirteen fhillings, for his fmall tithes. And alfo that the defendant C. Hanford fhall pay the one pound, four fhillings, fo reported due from him, together with moderate cofts to be taxed. to pay his fall tithes. AND IT IS FURTHER ORDERED AND ADJUDGED, that the faid Bill difmiffed as bill, as touching the tithe of corn and grain, be and is hereby to great tithes. abfolutely difmilled. LISTER against CANE and SALMON. Buckinghamshire, 22d June 1692. TRIN. TERM 4. WIL & MAKʻ The rector of THE plaintiff, as rector of Fulmore, in the county of Bucks, stated, that according to a law, or custom used within the said parish, and the adjacent parishes there, the tithe of underwood, when felled, ought to be fet forth in loads, half loads, of wood to be let quarterns, ftacks, and bundles, viz. firewood in loads, half out in loads, &c. loads, quarterns, and stacks; and hoops, withes, broom staves, hurdle rods, and other fuch like wood in bundles, to be made up and bound with withes, and fet forth equally in the fame method and manner, as the owner and proprietor of such woods, when felled, fets it forth and prepares it for his own use or fale. And that by custom rabbits had always paid tithes to the rectors within the faid parish. That the defendant Cane, between Midsummer 1687 and Michaelmas 1690, had felled great quantities of underwood, and fold the fame, and had alfo cows and calves, for which he paid no tithes to the plaintiff; that the defendant Salmon, for four years paft, held and occupied a and the tithes of warren, and killed, fold, and difpofed of great quantities of rabbits, without paying the tithes thereof, or making any fatisfaction for the fame. rabbits. The defendant Cane confeffed, that he had felled, fold, and The defendant difpofed of twenty-fix acres of underwood worth fifty fhillings fays he fet out. his wood by finan acre; that he had alfo cows and calves; and mentioned, that gle stick, or fick by an ancient cuftom there ufed, fourpence per annum had been paid to the rector for a cow, and therefore no tithe ought to be paid for milk or calves. He confeffed, that he had fet forth the tithe of the wood by fingle ftick, or ftick meal, as by the law he might do, and that the fame was a full tenth part of the wood felled by him, and that the plaintiff was contented there U 3 with. LISTER CANE AND Denies that rab with. He denied, that there was any custom to fset forth tithe wood in loads, half loads, &c. as ftated in the bill, but that to oblige the plaintiff he had, in some of the years mentioned, caufed his wood to be fet out in quarterns. The defendant Salmon confeffed, that for four years he had bits are titheable. occupied and poffeffed a warren in Fulmore, and paid for the warren house and the warren, and killed within the faid warren about fixteen dozen of rabbits, which he fold for eight fhillings a dozen, and faid that he had let the plaintiff have feveral couple of conies, but not as tithes ; and he denied that there is any custom for tithing the fame. Upon reading the proofs taken in the cause, and on debate, The wood de- THE COURT was of opinion, that the method, infifted upon by creed to be fet the defendant Cane for the fetting forth of the tithe of his out in loads, &c. wood, is irregular and illegal, as being an unequal and fraudulent way of tithing wood, AND THEREFORE ORDERED AND DECREED, that he fhall pay and fatisfy the plaintiff fix pounds for the value of his tithes of wood, calves, and milk, viz. five pounds, fifteen fhillings, for the wood; three fhillings The tithe of rab- for his calves; and two fhillings for his wool; AND THAT the defendant Salmon fhall pay to the plaintiff forty fhillings for his tithes of rabbits for the faid years; and the deputy remembrancer is to tax the plaintiff his cofts. bits decreed. TRIN. TERM, 4.WIL.& MAR. The rector of Foxley, in Wilt THE STUMP against AYLIFF. Wiltshire, 21st June 1692. HE plaintiff, as rector of the parish of Foxley, in the county of Wilts, ftated, that he was entitled, as rector, to all dues hire, claims the and tithes whatfoever arifing within the parifh and the tithethe faid parifh. able places thereof. tithes arifing in The defendant The defendant pleaded, that by the ftatute 21. Hen. 8. c. 13. pleadsthe ftatute f. 9. intitled, "Spiritual Perfons abridged from having Plurality 1. Hen. 8. e. ❝ of Livings," IT IS ENACTED, that if any perfon, 13. f. 2. and "having one benefice with the cure of fouls of the yearly fays the plaintiff accepted of a fe"value of eight pounds or above, accept of any other and be cond benefic. in" in poffeffion, that then immediately after fuch poffeffion had, Sutton Benger, the first benefice fhall be void." That the rectory of Foxley and ther fre is is a benefice with the cure of fouls, and above the value of the tithes in eight pounds per annum, viz. of fixty pounds per annum, and not entitled to Foxley. upwards; that, about the fecond of August 1689, the plaintiff accepted of a fecond benefice, to wit, the vicarage of Sutton Benger, in the faid county, being a benefice with the cure of fouls, and was inducted and in poffeffion thereof, without any qualification according to the ftatute, and therefore the firft benefice was void, and the plaintiff had no right to any tithes of Foxley, fave fuch as were due to him before his induction into the fecond benefice; that for that reason he refused to pay the plaintiff any tithes other than what were payable to the plaintiff before his induction into the benefice of Sutton Benger; that he is willing to pay what is due to the plaintiff, and if the Court is against him, prayed that the fame might be added to his account. The plaintiff replied; the defendant rejoined; and witneffes were examined on both fides; and upon reading the proofs in -the cause, and full debate of the matter in law, arifing in the pleadings, touching the plaintiff's accepting a fecond benefice, and other matters infifted upon by the defendant's counfel, IT IS ORDERED BY THE COURT, that this caufe be further heard touching the faid matter in law. THE COURT, on the fifth of December 1692, after hearing The defendant counsel touching the faid matter in law, unanimoufly declared, ordered to pay that the defendant ought to account for and pay to the plaintiff his tithes, the faid tithes and dues demanded by the bill (a). (a) It feems from the report of this cafe, from the manufcript the lord chief baron, Dodd. Rayner, 72, that the Court determined in favour of the plaintiff, becaufe, though the real value of the rcctory of Foxley, was above eight pounds a-year, yet in the king's boobs, (which is the conclufive rule) it is under that value; and the fame point was determined BERWICK against SWANTON. Norfolk, 22d June 1692. TRIN. TERM, 4. WIL.& MAR. TH HE plaintiff, as vicar of Tofts, otherwife called Weft Tofts,in the The Court of county of Norfolk, and fequeftrator of the vicarage or parifh exchequer will church of Stanford, ftated, that by his inftitution and induction not retain a bill into the faid parish church of Tofts, and by virtue of the fequeftrator, to be refiled by a fequef tration to him granted, of the vicarage of Stanford, two years lieved for nonbefore he filed his bill, he became entitled to all manner of fmall payment of vi tithes and vicarial offerings, carial tithes. S. C. Rayn. 72. The defendant appeared and answered; the plaintiff replied; s. C. Bunb. 192. the defendant rejoined; and witneffes were examined on both fides. The matter in difference between the plaintiff and the defendant appearing to be only touching the tithes within the parish of Stanford. THE COURT was of opinion, that the plaintiff, being only fequeftrator of the faid parish, was not properly relievable in this U 4 court BERWICK against SWANTON. court, touching the tithes arifing within the faid parish, and therefore ordered the bill to be difmiffed; but without cofts. NICH. LECHMERE. JOHN TURTON. TRIN. TERM, 4.WIL &MAR. The rector of Daore, in Here- THE JOHN POWELL. WATTS against WATKINS and Others. Herefordfbire, 22d June 1692. HE bill ftated, that the plaintiff was, in the year 1676, prefordshire, claims fented to the rectory of Doore, in the county of Hereford, the tithes of and was thereby entitled to all tithes arifing within the faid Morehampton parish. Grange. The defendants The defendants faid, that, fince the plaintiff has been rector fay, that the of the faid parish, they have severally held meffluages, farms, Grange was and lands within the grange called Morehampton Grange, within parcel of the poffeffion of the the faid parish; and infifted, that they ought not to pay any abbot of Doore tithes for the fame, for that the abbot or prior of the abbey of of the Clertian Doore was of the Ciflertian order, and privileged from the payorder, and came ment of tithes, and was heretofore feifed in fee of divers lands, difcharged of tithes to Henry parcel of the demefnes of the faid abbey, within the faid parish of the Eighth, who Doore, and amongst others of the faid grange called Morehampton granted them to Grange, which was parcel of the faid abbey, and that the lands in T. Bakerwill, the defendants poffeffion were parcel thereof; that the faid abbot defendant claims was alfo poffeffed of the appropriate rectory of Doore, and, being it, fo difcharged fo feifed, in the twentieth year of Henry the Eighth, demifed under whom the of tithes. the faid grange and other lands to T. Baskervill, with all manner of tithes, waifs, eftrays, fishing, fowling, and pannage, with other profits and royalties thereto belonging (fuit of court only excepted) for ninety-nine years, at the rent of fifteen pounds, fix fhillings, and eightpence a-year, and that he held the fame difcharged from tithes ; that afterwards the faid abbey, and all the lands, rectory, and the tithes thereof, and the fee thereof, became legally vested in King Henry the Eighth, with all the privileges and exemptions thereto belonging, and that he, in the thirtyfecond year of his reign, granted the faid grange, lands, and tithes, fo demifed to T. Bafkervill, to Stephen ap Harry and his heirs, with all the king's hereditaments belonging to the faid grange, or that were in Baskervill's poffeffion, and referved a rent to him and his fucceffors; that no tithes were ever pretended to or demanded as due to his majesty, or fucceffors, or other proprietors of the faid rectory; that the lands, fo granted, are now in the feifin of Sir H. Hofkin, Knight; and that the defendants hold their farms under him, as part of and belonging to Morehampton Grange. Upon |