AUDLEY against FIEDY. to the tithe in question, The defendants Fiddy and Dinke by their answers denied that the faid W. Wood was feifed in right of the priory of Bridlington of the rectory of Scarborough; and faid, that they knew not that the faid rectory and priory came to the crown by attainder, nor could a prior forfeit his priory for a perfonal crime without an act of parliament. They confeffed that the inhabitants of Scarborough, time out of mind, had kept ships and boats, wherein they used a trade of fifhing for herrings, cod, whitings, and other fea-fish, and gained their livelihood thereby; but they denied that time out of mind and deny the the fishermen of Scarborough have used to pay the twentieth part plaintiff's right of fish by them taken, or the twentieth part of the value thereof, as charged in bill; and that they knew not that by the diffolution of the faid monaftery the faid profits came to the crown, and stood charged under a distinct value, and fo continued until the fame was made parcel of the faid rectory, and the rent of the fame increased thereby ; nor that the faid rectory did defcend to Queen Elizabeth, or was granted by her to the faid plaintiff and the joint patentees, nor whether the fame be come to the plaintiff; that they knew not what rent is reserved, nor ought they to pay any rent for the faid profits of fifhing, for they are informed that fome ancient men were lately living who affirmed, that nothing was exacted as of right, but that the payments were what the owner voluntarily pleased. They alfo averred, that no profit for lobsters was ever paid or demanded by the rectors of the faid rectory; but alledging, that confeffed, that the faid rectors have had of the defendants and the former payothers, fometimes more or lefs, compositions for fith fold in that luntary or exe port, and that they have exacted fish in kind, or compofition for acted. fifh, though not vended there, but that the fame was done by force, and the payments made for fear of fuits; that they have ufed the trade of fishing with boats and cobbles for five years, and have fold the fame at feveral places, but not to the amount of fourfcore pounds each of them a year. The plaintiff replied; the defendants rejoined; and witneffes were examined on both fides. ments were vo provifional The caufe had come on to be heard on the fixth of February A 1653; and upon opening the bill, and reading the defendant's decree in favour anfwers, and the grant made by the late Queen Elizabeth to of the plaintiff, the plaintiff and others of the rectory of Scarborough ; and alfo upon reading fome ancient minifters accounts, fhewing what hath been answered for the twentieth part fince the faid rectory came to the crown; and alfo on reading the depofitions taken on the plaintiff's part in the faid cause, IT WAS ORDERED by the Court, that a decree should be drawn By BARON up to establish the poffeffion of the payment of the faid twen- THORPE, tieth part of the fish taken by the inhabitants of Scarborough now in question with the plaintiff and his affigns until he or B4 they AUDLEY against FIDDY. The decree drawn up. A rehearing granted. An iffue direct cuftom. they be evicted by law, unless cause shall be shewn to the con trary; at which time the court will confider what allowance fhall be given to the plaintiff for the faid twentieth part for the five years arrears mentioned in the bill, according to the proofs in the caufe. The defendant not fhewing any cause last Term, pursuant to the faid order, the Court was moved on behalf of the plaintiff on the fifth of May 1653. Whereupon IT WAS ORDERED, that a decree should be drawn up according to the purport of the faid recited order, and tendered to THE BARONS of this Court to be figned, so as it might be entered, unlefs caufe was fhewn to the contrary. But upon the motion of counfel for the defendants, it being alledged that the said defendants were not ready at the time of the faid hearing, nor made any defence therein, by reason they fent up their commiffion and depofitions thereupon taken by a. meffenger who could not depofe his receipt thereof from the commiffioners, IT WAS THEREFORE ordered by the Court, on the tenth of May, that, the defendant paying the plaintiff five pounds cofts, the faid cause should be reheard; and upon full and deliberate hearing of the laid caufe, and the fame being strongly debated by counsel on both fides, IT WAS ORDERED by the Court, by and with the confent of ed to try the both parties, that the custom fet forth in the faid bill shall be referred to a trial at law, in an action to be brought by the plaintiff against the defendants after the ufual manner; in which action both parties fhall ftand only upon the custom which action fhall be tried at the bar of this court by a jury of Middlefex, and the equity of the bill be reserved until after the faid trial. A verdict found The trial being had according to the faid order, and for the plamuff the plaintiff, having fully proved the cuftom, obtained verdict, and on the feventeenth of November 1654, the Court was moved by the plaintiff's counsel, that inafmuch as the plaintiff had obtained a verdict upon the trial, and judgment entered thereupon, the poffeffion of the payment of the faid twentieth part of the fish in queftion might be established with the plaintiff, and that a decree might be drawn up thereupon, according to the order of the fixth of February last; and that the Court would be pleafed to confider what allowance should be given to the plaintiff for the twentieth part for the five years mentioned in the faid bill. IT WAS THEREUPON ORDERED by the Court, that the faid decree formerly pronounced by the Court as aforefaid should be drawn drawn up and made abfolute, and the poffeffion of the payment of the twentieth part of the fish in question established with the faid plaintiff, wherein confideration fhould be taken of the faid arrears, unless cause was shewn to the contrary on this day. And no cause being fhewed to the contrary, AUDLEY againf FIDDY.. custom. IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED by the Payment of the Court, that the poffeffion of the twentieth part of the fish taken tithes decreed, at fea by the defendants or either of them, being inhabitants of pursuant to the the town of Scarborough aforefaid, and ufing the trade of fishing there, or the value thereof, fhall be eftablished with the plaintiff or his affigns; and that the faid defendants fhall for the future pay to the faid plaintiff, or to his affignee or affignees, during his or their eftate in the premifes, the twentieth part of the fish hereafter to be by them taken at fea, or the twentieth part of the value of the faid fish wherefoever the fame fhall be taken up or fold, according to the custom before fet forth in the bill. And as touching the arrears thereof for the five years next before the exhibiting of the faid bill; forafmuch as it is proved by the plaintiff that the faid twentieth part of the fish in question taken by each of the faid defendants in each of the said five years refpectively was worth four pounds, which will amount in all to forty pounds, IT IS FURTHER ORDERED, ADJUDGED, AND DECREED by this Court, that the faid defendants fhall refpectively pay to the faid plaintiff, or to his affignee or affignees, the fum of twenty pounds a-piece, in lieu of the twentieth part of the said fish taken and fold by the faid defendants during the faid five years before the exhibiting of the faid bill, THORPE, Baron. THOROWGOOD,Knight,and Others against DELABARRE. TRIN. TERM, Kent, ft June 1654. 6. CAR. 2. covenant to pay THE plaintiff's bill fet forth, that by an act of parliament made If a rector dethe eighth of June 1649, it was enacted, "that all tithes mife the rectory "appropriate of archbishops and bishops which, at any time for years, and "within ten years before the beginning of that parliament, they all tithes, taxes, "held and enjoyed in right of their archbishoprics and bishop- and fubfidies af"rics, with all deeds and evidences concerning the fame, feffed by parlia "should, from the fixth of January 1649, be vefted and fettled ment or convoin the real and actual poffeffion of and feifin of Sir Henry manor, the af"Holcroft Knight, and F. Weft, fince deceafed, and of the faid fignee of the re "plaintiffs and their heirs, and the furvivor and furvivors of version is bound cation on the faid to allow to the leffee or his affigns a proportionate part of a parliamentary tax for the ufe of the army affeffed on a landlord mediate and immediate. s them, THOROWGOOD" them, without any entry or other act, in truft, for the intent agairst " mentioned in the faid act ;" that by virtue of that act of DELABARRE. parliament, they, the faid plaintiffs, became feised of the premises, intitle felves to the and, amongst others, of the tithes of the impropriate rectory of The plaintiffs Dartford, belonging to the late Bishop of Rochester; that by them- another act made in the fame parliament, the first of April 1650, rectory, as truf. the faid Sir H. H-lcroft, F. Weft, and the faid plaintiff's were alfo tees under an act entitled to receive all arrears of the faid tithes, not particularly of parliament. difpofed of by the parliament, due from the first of December 1641 to the ninth of October 1646; that the faid defendant hath been tenant, poffeffor, or occupier of the faid tithes of the impropriate rectory of Dartford from the faid fixth of January 1649, and had received the profits thereof during that time, and refused or neglected to account with the plaintiff for the fame, or fatisfy and pay the fame to the faid plaintiff, under pretence of a leafe from the faid Bishop of Rochefter for years yet to come, for a certain rent; and that he refufed to produce the fame to the plaintiff, or to pay any rent referved upon the fame, or to give copies of fuch leafe, whereby the faid plaintiffs are difabled to discharge the truft in them repofed, or to give a fatisfactory account to the ftate when they fhall be called upon. To be relieved in all which premifes they exhibited their bill, and prayed that the faid 'defendant might answer the premises, The defendant be leffee of the The defendant answered, and confeffed that the late Bishop of ftates himself to Rochefter was feifed of the impropriate rectory and the manor of rectory, with a artford; and that he, on the fourteenth of May 640, demifed covenant on the the fame to E. Darcey for twenty-one years, under the yearly part of the rec- rent of twenty-five pounds, payable half-yearly; and that the tor to pay all faid Bishop of Rochester, for him and his fucceffors, "did parliamentary "covenant and agree with the said E. Darcey, his executors and he offered to "affigns, that the faid Bishop of Rochester and his fucceffors fhould, pay the rent, de-" at his and their proper cofts and charges, pay, bear, and supducting the taxes; and that taxes. "port all and every the charge and charges whatfoever for the "faid manor and parfonage, coming growing, or due, and alfo "all and every the tenths, difmes, fifteenths, and subsidies, by "authority of parliament or convocation, or otherwife granted "or to be granted during the faid term ;" that the faid E Darcey, on the thirty-firft of January 1646, did affign over the premifes to J. Vafe in truft for the faid defendant; that he had received the rents and profits of the premises ever fince, and hath paid the faid rent to the plaintiffs until the twentieth of Auguft 1651, and that he was and is ready, and hath offered to pay the faid plaintiffs the rent due, fo as the faid plaintiff's will allow the taxes and payments affeffed upon the fame by order of parliament, according to the agreement and covenant in the faid leafe made by the faid Bishop of Rochefter to E. Darcey, The plaintiff replied; and witneffes were examined on both fides; and upon hearing counfel, and after much debate in the caufe, Forafmuch Forafmuch as the defendant, by his answer, hath not fet forth THOROWGOOD against what particular kinds of taxes he would have abated, nor when DELABARRE thofe taxes were granted, nor hath made any proof what taxes he hath paid, but did now alledge the fame to be taxes for the army, Lee, THE COURT doth adjudge and declare, that the covenant in The tax to be the leafe, mentioned in the anfwer, made by the late Bishop of paid by the lesRochefter to E. Darcey, doth not extend to discharge the defendant from the payment of the said taxes. deducted But because the ordinances and acts of parliament for the pay- and ing of the faid taxes for the army do lay the fame by the way of a from the rent, land rate upon landlords, both mediate and immediate, according to their respective interefts, therefore the plaintiff's, by virtue thereof, are to bear a proportionable part of the taxes, according to the rent reserved upon the faid leafe, which appeareth to be twenty-five pounds per annum, and the faid impropriate tithes to be worth one hundred and twenty-five pounds a-year. which the rent bears to the vaIlue of the tithes. THE COURT therefore ordered, that the defendant fhall according to the forthwith fatisfy and pay to the plaintiff, or their affigns, proportion twenty-five pounds for the arrears of the rent for one year, ended 1652, having allowance of the taxes paid out of the premises during the fame time, after the rate and proportion of the yearly rent of twenty-five pounds only; and that the defendant, his executors, administrators, and affigns, fhall for the future, during the remainder of the term in the lease fpecified, continue the payment of the yearly rent of twentyfive pounds to the plaintiffs or their affigns, deducting only fuch taxes out of the fame according to the rate and proportion of twenty-five pounds a-year as fhall be thereupon lawfully charged. And IT IS FURTHER ORDERED, that the faid plaintiffs fhall have a true copy of the said leafe, if they shall defire the fame. THORPE, Baron. PAGE against LAWE. Northamptonshire, 26th October 1654. MICH. TERM, 6. CAR. 2. inhabitants of a THE bill stated, that the plaintiff had been for twelve years paft Tithe is due for the true ovner and proprietor of the impropriate rectory or furse cut. The parfonage of Cundle, and that he ought to have had all manner bamlet fhall pay of tithes of corn, grain, hay, furzes, wool, lambs, milk, calves, tithes to the rec and all other great and small tithes arifing within the manor or tor of the parish. A custom stated, that the inhabitants of a hamlet shall pay 13s. 4d. yearly, in lieu of all small tithes. lordship |