Coz against MASON. right of the vicarage tithes. conceiving there was none due to him, for that all the lands he occupied were and are demefne lands of the faid manor, which were parcel of the poffeffions of the priory and canons of the Holy Trinity, in London; that the church of Branghinge was long fince appropriate to the priory and canons, and confirmed to them by the bishop of London, being bishop of that diocese; and that by an endowment made in the year 1218 it appears, that the vicar of Branghinge, in the name of the vicarage, "should "wholly receive and fully poffefs all obventions of the altar, "with the tithes and the vicarage-houfe, and all the land to the "faid church then belonging (except the croft called Valdebers, " and except the tenants and their tenements which in the por❝tion or dividend of the canons should remain ;" that, by virtue of the faid endowment, the vicar there never could claim to have any small tithes of the tenants and occupiers of the faid lands which the defendant holdeth within the faid parish, the fame being excepted from payment of any minute tithes to the vicar by the fame endowment, the faid lands, and alfo the minute tithes, being the portion or dividend of the faid canons; that he never heard that any minute tithes, or any tithes at all, were ever paid or given to any of the vicars of Branghinge for any of the lands in his occupation; neither doth he conceive, that the faid vicar hath any right or title to the fame, either by prefcription, endowment, or otherwife; that about thirty years fince the owners or occupiers of Branghingberry, whereof the lands in the defendant's occupation are parcel, did, for fome years, give to the vicars thereof for the time being five marks a year by way of gratuity, though the vicars pretended it an ancient payment in Lieu of fmall tithes ; and therefore infifted on his right to refuse to pay tithes. The plaintiff replied; the defendant rejoined; and witneffes were examined on both fides. Copy of an en- The cause came on this day fe'nnight; and upon opening the dowment read, pleadings, and reading a copy of an endowment extracted out of explaining the the principal regiftry of the late bifhop of London, dated at Fulham, in the year 1618, and proved to be a true copy, which feemed to explain the right of the vicarage tithes in question. The Court took time to confider of the fame, whereupon the barons being attended with copies, the caufe came on to be furhter heard this day; and upon full and deliberate hearing, The Court's opinion. And upon long debate of the matters in question, and touching the meaning of the faid endowment; and upon reading the feveral depofitions for the plaintiff touching the payment of the tithes in question to the vicar of Branghinge for the time being; Forafmuch as it appeareth to the Court, by the depoûtions of feveral witneffes, that the fmall tithes of hay, hops, wool, and other small tithes, have been paid in kind, or by compofition, to the the plaintiff, as vicar of Branghinge, and to his predeceffors vicars there; and for that it is alfo proved by the plaintiff that the faid defendant for the said years had the aforesaid tithes of hops, wood, hay, wool, and lambs, the tithes of all which amounted to feven pounds four fhillings and eight pence; and the Court being of opinion, that by the faid endowment the faid plaintiff is entitled to all the fmall tithes arifing within the faid parish; IT IS THEREUPON FINALLY ORDERED, ADJUDGED, AND DECREED by this Court, that the faid defendant fhall forthwith pay unto the faid plaintiff, or to his afligns, the faid fum of feven pounds four fhillings and eight pence for the value of the faid tithes by him detained from the faid plaintiff. PARKER, Baron. THOROWGOOD, Knt. and Others, against ORDE. Durham, 30th November 1657. Cos against MASON. MICH. TERM, 9. CAR. 2. the river Tweed THE HE bill ftated, that the plaintiffs, by two feveral acts of par- The tithe of all liament, and by an ordinance of his highness THE LORD fish caught on PROTECTOR and his council, became feifed of all the tithes of fish the fouth fide of and fishing on the fouth fide of the Tweed, by custom, time out established in of mind ufed, payable and belonging to the parish-church of the dean and Norham, being parcel of the poffeffions of the late dean and chapter of chapter of Durham; that they, being fo feifed, by their inden- Durbam. ture, dated the eighteenth of April 1655, did demise the faid tithes, with the appurtenances, to the plaintiff Edward Salkeld," to hold for fix years, under fuch covenants as are in the faid leafe mentioned; that the defendant, pretending title to the faid tithes, would not fuffer the plaintiff to enjoy the fame, by pretence of fome leafe or otherwife. He therefore prayed a difcovery of his faid title, and an account, and a fatisfaction for the faid tithes; and that the plaintiff's right to them might be establifhed. The defendant ftated, that his grandfather and father were feifed of the tithes in their demefne as of fee; and that his father dying fo feifed, they defcended to him as fon and heir, he paying yearly twelve pounds to the dean and chapter of Durham, and now to the preaching minifter of Norham. The plaintiff replied; the defendant rejoined; and witneffes were examined on both fides. The cause came on to be heard the eleventh day of June last ; When upon reading feveral leafes heretofore made of the pre- Iffuc directed. mifes to the defendant's father, and to the defendant himself by the faid dean and chapter, this Court directed an iffue, "whether all "the tithes of the fith and fishing in the fouth fide of the Tweed, "by THOROWGOOD "by cuftom, time out of mind ufed, payable and belonging to the Decree. 19th Feb. 1658. 5th May 1659. "late dean and chapter of Durham, were payable to and be"longing to the said late dean and chapter;" on the trial of which iffue a verdict paffed for the plaintiffs. The caufe now came on upon the equity referved; and upon reading the order and the poftea, and hearing of counfel, IT IS ORDERED AND DECREED BY THE COURT, that the plaintiff Salkeld thall quietly have, receive, and gather the said tithes of the fish and fithing on the fouth fide of the Twee, payable and belonging to the parith-church of Norham, for and during the refidue of the term granted to him by the said other plaintiffs, without the let, disturbance, or interruption of the said defendant, his heirs, affigns, fervants, or agents, or any claiming from, by, or under him; and that the faid other plaintiffs, and the reft of the trustees in the act or ordinance named, their heirs and affigns, from and after the end and expiration of the faid lease by them made to the plaintiff Salkeld of the premises, shall peaceably and quietly have, receive and take the faid tithes of the said fish and fishing without the let. hindrance, or disturbance of the defendant, his heirs, agents, or fervants, or any claiming for, by, or under him; AND IT IS FURTHER ORDERED, that the defendants fhall fatisfy and pay to the faid plaintiffs the profits by him received out of the said tithe of fith or fishing from the fixth of January 1649 until the twenty-ninth of September 1652, the commencement of plaintiff Salkeld's leafe, and from thence they do pay to the plaintiff Salkeld the tithes due to him; and to the end that the faid profits may be afcertained and made appear to this Court, IT IS FURTHER ORDERED, that a commiffion thall be awarded to commiffioners within the faid county of Durham to enquire of the value of the profits received by the faid defendant or his agents during the time aforefaid. In purfuance of the faid decree, the auditor returned his certificate; and upon reading the order and certificate, IT IS ORDERED BY THE COURT, that the faid defendant shall pay the money certified due for the value of the tithes in question, unless cause fhewn to the contrary. It is this day ordered by the Court, that the faid order be made abfolute. PARKER, Baron. HELE, HELE and Others against PRONTE. Devonshire, 16th November 1657 MICH. TERM, 9. CAR. 2. HE bill stated that the plaintiffs, ever fince the twenty-fifth A bill in equity THE of March, in the year 1653, have been lawful owners of the lies to be relieved rectory impropriate of North Petherwin, in Devonshire, with all against the subtraction of pretithes and profits thereunto belonging; that, time out of mind, dial tithes, notall the tithes of corn and grain growing therein, and the titheable withstanding the places thereof, have been always paid to the rectors and owners ftatute 2. & 3. thereof in kind, or a compotition for the fame; and that the Ew. 6. c. 13. gives an action defendant hath been yearly owner of twenty acres of arable land within the faid rectory, and did yearly mow wheat, barley, oats, and other grain, and carried the fame away without fetting out the tithe thereof regularly. The bill therefore prayed a difccvery of the quantity and the value, and that the defendant might be decreed to pay the fame. The defendant appeared, and put in a demurrer and anfwer. at law. And for demurrer he fet forth, that between the twenty-fifth Demurrer a to of March 1653 and the twenty-fifth of December in the faid bill the plaintiff's mentioned, he was owner of twenty acres of arable land within title, &c. the faid rectory, fown with wheat, barley, oats, and other grain, and did yearly mow the fame, and converted the fame to his own ufe, and that the tithes thereof yearly were worth five pounds; but that he is advifed that the fubtraction of predial tithes by the not setting out of the tithe from the nine parts, and the unequal divifion thereof, are matters which may be relieved at law upon the statute 2. & 3. Edw. 6. c. 13. ; and therefore the plaintiffs ought not to profecute any fuit in equity for the fame; the faid plaintiffs not having fet forth any certain title to the tithes, or thewed how long fince their eftate therein might commence fince the fubtraction of the faid tithes. The defendant alfo fet forth the titheable matters, and denied any fraud in fetting out their tithes. The plaintiffs replied to the anfwer; the defendant rejoined; and witneffes were examined on both fides. And upon opening the pleadings, and reading the evidence, and upon full debate, IT IS ORDERED BY THE COURT, that the defendant fhall pay to the plaintiff feven fhillings and fixpence proved to be due and detained for tithes complained of by the faid bill, and fhall at all times hercafter duly tithe and fet forth the tithe of corn and grain arifing, &c. in the faid parish and titheable places thereof by itself, fo that the faid plaintiffs or their fervants may for the future take and carry away the fame without any trouble or denial from the faid defendant, or any claiming by or under him. BY ALL THE BARONS. AYLOFFE 2. Inst. 649. 1 HILARY TERM 9. CAR. 2. pounds in lieu arifing in the stablished. AYLOFFE against PENNINGTON and Another. A rendus of fix THE bill fet forth, that the late King Charles, being feifed, in right of his crown or of the duchy of Lancafter, of the rectory of fmall tithes, parcel of the poffeffions of the late diffolved monafparish of Millem, tery of Furneffe, by indenture dated the third of June, in the in Cumberland, nineteenth year of his reign, in confideration of thirty-one pounds, thirteen fhillings, and fourpence rent, referved, did demise the fame, and all the tithes, as well predial as otherwife, to the faid plaintiff for thirty-one years, who did enter and poffefs himself thereof; that the defendants were for feveral years paft poffeffed of divers pafture grounds or herdwick therein, and had great flocks of fheep and lambs yearly, the tithe whereof belonged to the plaintiff. He therefore prayed a discovery, and relief in the premifes. The defendant Allan Pennington (administrator of William Pennington) anfwered, and fet forth an estate in lands or right of common within the faid rectory; but what eftate, lands, sheep, lambs, and wool, the faid William Pennington had he knew not; but confeffed that the faid William Pennington is dead, and that he had left fufficient affets, but knew not whether any tithes were due. The defendant John Pennington fet forth, that he believed the faid plaintiff was feifed of the rectory, and that he the faid defendant is feifed of divers lands therein, to which he had common belonging in divers great wastes; and that he had sheep on them; and he prefcribes to pay a modus decimandi of fix pounds in difcharge of fmall tithes, payable by reafon of his depafturing in the faid waftes; and that he was always ready and willing to pay the fame to the plaintiff, if he would accept it. The plaintiff replied; and the cause being at iffue, witnesses were examined. Upon the hearing whereof it appeared to the ae dreaed to Court, by the answer of John Pennington, that he prescribed to By the modus. pay a modus of fix pounds as aforefaid; and therefore it was thought it to refer the fame to a trial at law upon the faid modus. A trial was had, and a verdict paffed for the defendant. IT WAS THEREUPON ORDERED by the Court, that the faid bill fhall be difmiffed, unlefs caufe fhewn to the contrary, the faid plaintiff firft paying five pounds cofts for this day's attendance 11th Nov. 1658. before he be heard; and no cause being fhewn, IT IS ORDERED BY THE COURT, that the faid order be made abfolute. |