fame; that HENRY THE EIGHTH, being feifed both of the faid rectory and the lands in queftion, granted the rectory to Trinity College, Cambridge, and that it ought to be prefumed, that when he granted the fame to the college, he either referved the tithes of the lands in the defendant's poffeffion, and all the lands in Enfield Chace, or elfe referved them to the crown, difcharged from tithes; that King Henry the Eighth's fucceffors had granted the lands in the defendant's poffeffion to feveral perfons, tithe free, and that all who have held the fame, fince the grant of the faid rectory, have enjoyed the fame tithe free; and that it appeared, not only in feveral grants from the crown, but alfo in feveral ancient furveys and evidences, that the faid lands and other lands in Theobald's Park are mentioned to be tithe free; that the lands were granted by William the Third to the Earl of Portland; that they are his tenants; and that no tithes having been ever paid, they hoped they fhould not now be compelled to pay tithes for the fame.

The plaintiff replied; the defendants rejoined; and feveral witneffes were examined on both fides; and upon reading the depofitions, and a grant of the rectory and tithes of Enfield, dated the twenty-fourth of December, in the thirty-eighth year of Henry the Eighth, made by him to Trinity College, Cambridge, and a leafe by the faid college of the faid rectory, and tithes in question, to the plaintiff, and the enrollment of a deed, dated the twenty-fecond of March, in the twenty-ninth year of Henry the Eighth, being a furrender to the crown by J. M. Suffragon, bishop of Colchester, and comendator of the abbey of Walden, and of the convent thereof, and of their corporation, and of the church and rectory of Enfield, and alfo a grant made to Lord Audley, in the thirteenth year of Henry the Eighth, and a furrender and grant from the faid Lord Audley to the faid King Henry the Eighth, made in the thirty-fourth year of his reign, and a survey of Theobald's Park in 1649, and a copy of a grant from Charles the Second of Thecbald's Park to the Duke and Duchefs of Albermarle, and another grant, made by William and Mary to the Lord Portland of Theobald's Park, and on full debate of the matter,

THE COURT declared, that the lands in the defendant's occupation, lying in Theobald's Park, within the parith of Enfield, were not discharged from, but ought to pay tithes.

PEIRCE against RUSSELL and Others; et è Contra.

Gloucestershire, 21st February 1707.

SHALLER

againft PENNYFA

THER.

HILARY TERM 6. Q. ANNE.

demefne

TH HE plaintiff, as rector of the parish of Littleton upon Severn, The in the county of Gloucefter, claimed all the tithes of corn, lands in the magrain, hay, cheefe, wool, and lamb, and all other titheable things nor of Littleton, arifing in the faid parifh and in the titheable places thereof. in Gloncefter foire,

The

are tithe free.

PRICE against RUSSELL

AND OTHERS; até Contra.

EASTER TERM,

7. Q. ANNE.

The defendants denied that they ought to fet out their tithes, in kind, or to make the plaintiff any fatisfaction for the same ; for that the lands held by them were heretofore parcel of the diffolved abbey or monaftery of Malmesbury, in the county of Wilts, and were part of the demefne lands of the faid abbey or monaftery; that the abbots of the faid monaftery and their predeceffors had, time out of mind, held the faid lands clearly difcharged of all manner of tithes; and that the fame lands, being part or parcel of the manor of Littleton, came to Henry the Eighth, upon the diffolution of the faid abbey, being one of the greater abbies, by 31. Hen. 8. c. 13. and were afterwards granted by the faid king, by letters patent dated the twentyninth of Cctober, in the thirty-third year of his reign, to Sir Richard Long, Knight, and his heirs, under whom the defendants, by feveral mefne conveyances, claim (a).

66

An iffue was directed to try, "Whether the lands in the pof"feffion of Ruffel and Stephens, lying in the parish of Littleton upon Severn, in the county of Gloucefler, were parcel of the "poffeffions of the late diffolved abbey or monaftery of Malmef"bury, and as fuch difcharged of the payment of tithes in kind, "or not?" on the trial of which, the jury brought in their verdict for the defendants; and the bill was accordingly difmified.

(a) The bill alfo claimed tithes from Hoptown, the lord of the manor, who itated, by his anfwer, that he was feifed of the dimefne lands, for which there had always been yearly paid to the plaintiff Peirce and his predeceffors. at Michaelmas, three bushels of wheat, fix bushels of cats, and four groats in noney,

by way of compofition, and in lieu of all manner of tithes in kind arifing out of and for the capital me ffuage farm and demofne lands of Littleton; and on reading the grant from Henry the Eighth to Sir Richard Long, the bill, as to the defendant Hoptown, was difmiffed with costs.

Bowies against LORD ARUNDEL.

Willbire, 26th April 1708.

The rector of THE plaintiff, as rector, claimed tithes of lands in the parish of Donhead Saint Andrew, in the county of Wilts, for four

Donhead St. An

drew, in the years past.

County of Wilis, is entitled to mo

The defendant faid, that he had, for five years paft, been feifed of Wardour Cafile, and of the gardens and orchards thereto year, and to the belonging, and of two feveral parks or inclofures, called Red ronning of a Forfe, from the Deer Park and Fallow Deer Park, belonging to the faid castle; thard of May to in which parks are included the faid gardens and orchards, and the twentieth of feveral coppices or wood grounds, and meadow grounds, called Pond Clofe,in lieu Wild Buck Park; that fo much of the faid parks as contain three of the tithes of hundred and forty acres is within the parish of Donhead Saint

September, in

Red Deer Park

and Fallow Der Park; but he is entitled to the tithes of Little Coppice in kind.

Andrew

Andrew, and the refidue in other parishes; that he is alfo feifed of a coppice, called Little Coppice, which is no part of the faid parks, but within the parish; that as to fo much of the caftle and premifes as are within the faid rectory or parish, viz. three hundred and forty acres, there is, and time out of mind hath been, a certain modus of three pounds, eight fhillings a-year, and a horfe leafe, or the running of a horfe, from the third of May to the twentieth of September yearly, in a piece of land called the Pond Clofe (part of Red Deer Park), due to the faid rector, and which had been conftantly received and accepted by him in lieu and full fatisfaction of all tithes arifing upon the premifes (except Little Coppice), which lie within the faid parish or the rectory, and titheable places thereof.

The following iffues were directed to be tried; the plaintiff in equity to be plaintiff at law.

FIRST, Whether the fum of three pounds, eight fhillings, and a horse leafe, or the running of a horfe, from the third of May to the twentieth of September yearly, in a certain piece or parcel of land and ground, called the Pond Clofe, part of Red Deer Park, in the parish of Donhead Saint Andrew, be a modus, time out of mind, payable for all manner of tithes arifing upon that part of the faid Red Deer Park and Fallow Deer Park, which lies within the faid parish, or not?

SECONDLY, Whether Little Coppice be part of Red Deer Park, or not?

The jury found the modus as fet forth by the defendant; and also that Little Coppice was no part of Red Deer Park.

THE COURT ordered, that the defendant do pay to the plaintiff feventeen pounds, twelve fhillings, in his anfwer tendered, in full for the arrear of the faid modus of three pounds, eight fhillings per annum, and in full fatisfaction of the faid horfe leafe fo due, being after the rate of twenty fhillings per annum for the horfe leafe for the faid four years in the answer mentioned; and that the faid modus of three pounds, eight fhillings per annum, and a horse leafe, or running of a horfe as aforefaid, be hereby decreed and established accordingly; and that the plaintiff do pay to the defendant his cofts at law and in equity, to be taxed by the deputy remembrancer of this

court.

BOWLES

against

LORD ARUNDEL.

RINGSTEAD

TRIN. TERM,

7 Q ANNE.

RINGSTEAD against YOUNG and Others.

Norfolk, 2d July 1708.

Tithes in kind THE plaintiff, as vicar of Fouldon, and alfo as farmer of the rectory of Fouldon, in the county of York, claimed the tithes

surnips, when of turnips.

pulled up and

profitable or

other cattle, or

fold, or given to The defendants admitted, that they pulled or dug up the turnips, but denied that they fatted any cattle therewith; but otherways ufed. faid that they fed the fame with cows belonging to the dairy, and young flock.

And on debate, whether tithes are due for turnips pulled and digged up, and fevered from the ground, though fed by profitable cattle, it was ordered by the Court, that the caufe fhould stand over for the opinion of the court, and in the mean time to be attended with precedents: and upon view of feveral precedents in this court, and on mature confideration of the matter,

THE COURT declared, that for turnips when drawn or dug up and fevered from the ground, either fold or fed by profitable or other cattle, or otherwise spent or used, tithes in kind are due.

It is therefore ordered and decreed this day by the Court, that the feveral defendants fhall account with the plaintiff for the tithes of their turnips drawn or dug up, and fevered from the ground, and fed within the parish in the years mentioned in the bill.

TRIN. TERM,

7. Q. ANNI.

HALL against FILTZ.

Middlefex, ft July 1708.

The vicar of E4-THE plaintiff, as vicar of the vicarage of Ealing, otherwife Ling,in Middlesex, Zealing, in the county of Middlefex, claimed all manner of claims tithes of finall tithes whatfoever yearly arifing, &c. therein, and in the Cows, calves, titheable places thereof (except of the rector's glebe land there), peafe, beans, and and alfo, by the cuftom of the faid parifh, a mortuary for every perfon dying poffeffed of moveable goods within the faid parish.

turnips; and a mortuary for every person who dies poffeffed of

perfonal proper

ty.

The defendants admitted, that they feverally occupied farms within the parish, and fet forth the quantities and values of their tithes, and offered payment to the plaintiff for their tithes of The defendants lamb, wool, fruit, and garden ftuff; and as for turnips they faid, fay, they fed that they only fed their theep therewith, and thereby improved fheep with the their lands for the bettering their next fucceeding year's crop of

turnips;

corn to be fown, and did not make any other advantage thereof, nor did they fell any of their turnips, or pull any, except a few for fold their fheep the ufe of their family; that they did fell and difpofe of their before hearing flocks of theep at fuch time as the beft advantage and opportu

time ;

nity

HALL

against

FILTZ.

gathered.

nity offered, which generally happened before Easter, long before hearing time. They admitted that they had feveral crops of peas and beans, which they faid they had gathered green /and from the ftalks; and that the impropriator of the parfonage their peas and hath all along, from time to time, claimed the tithe, thereof, beans green from and that they had paid the fame to him. They infifted, the ftalks ; that neither the plaintiff nor his predeceffors ever had and that the tithes of peafe or beans, but that the impropriator always tithes of peale, took the fame, or fome compofition in lieu thereof; and and beans belong alfo, that there is a modus or customary payment, ufed time to the impropri. immemorial in the faid parifh, that the parishioners and farmers atq; of the faid parish ought to pay only yearly for the tithe of and ftate a 110every milch cow, and the calf the might yearly bring forth, for every mikh, fourpence, in lieu of the tithe for fuch calf, and for the milk and and 2d. a year herbage of the faid cow, and twopence every year in lieu of for every dry tithe for every dry cow which fhould not bring a calf; and cow. denied any cuftom in the faid parifh for the payment of

any mortuary.

dus of 4d. a-year

in lieu of tithes ; and inffts, that a fecond crop af

ter turnips is tithe fee.

The defendant Filtz confeffed, that he had not fet forth his The defendant Filz fays, he tithes, having paid the former vicar five pounds per annum in paid l. a-year lieu of all small and privy tithes ; and that the plaintiff had several times accepted thereof, although he now refufes the fame; and he infifted that, by the cuftom of the faid parish, when any of the farmers and occupiers of lands therein have any one year paid tithes, or compounded with the impropriator or farmer for the tithes of any part of the lands within the parith, which they may plough, fow, and have a crop upon in one year, and do afterwards fow turnips thereon for a fecond crop, in order for the bettering and meliorating of the next fucceeding year's crop upon the faid ground, then fuch turnips are not titheable, nor ought any tithes to be paid for the fame, nor had any tithes in fuch cafe ever been demanded or paid for fuch turnips within the faid parish.

inquithes his

claim,

as to

The plaintiff replied; and faid, as to the tithes of peafe and The phint ffrebeans growing in the common fields, pulled and gathered green from the ftem, in and by the bill demanded, that he did not intend to proceed any further for the fame, but thereby dif charged the defendants from examining any witnesses thereto.

As to all other the matters in the bill the plaintiff replied generally; and the defendants rejoined; and witneffes were examined on both fides; and upon reading the proofs in the cause,

peafe and beans.

ordered to account for

all

IT IS ORDERED BY THE COURT, that the defendants do The defendants feverally account with the plaintiff for the tithes of the feveral titheable matters and things by the bill demanded (except peafe and beans as aforefaid), but that the defendants are not to be accountable for any mortuaries; and it is referred to the deputy remembrancer to take and report the faid account.

And

tithes, except of peafe and beans.