BURNATOR against fcended or purchased, paying one fhilling yearly to her majesty, her heirs and fucceffors, which eight acres are commonly called AND OTHZAS. the new take, and is actually confirmed to fuch heir or purchafer, TORRET within the pa their heirs or affigns, by copy of court roll of her majesty's caftle court of Lydford; that the owners and occupiers of the faid thirty-five ancient tenements do pay feverally rents to the crown, when there is no PRINCE OF WALES, and when there is a PRINCE OF WALES to him, amounting in all to nine pounds, fifteen fhillings, and one penny, befides the rents of the new takes, whereof there are thirty inclofed, which are thirty fhil and that they lings; that the tenants of the faid thirty-five ancient teneare not within ments yearly do and perform certain fervices, as fet forth in the parish of the answers, according to custom, in respect of their faid teneLydford, but ments; that the faid tenements lie fifteen miles diftant from rifh of Whitcomb; Lydford, and by reafon of the length of the way, and of snow mires, and floods, they could not repair to Lydford church, nor ever did, and that the faid thirty-five tenements are either extraparochial, or within the parish of Whitcomb; for that, time out of mind, the occupiers of the faid thirty-five tenements, and of the inclofed new takes, have conftantly repaired to Whitcomb church, not above five miles diftant from most of them, where they marry, baptize, and bury, and do all parochial offices of conftables, churchwardens, and overfeers of the poor, and pay all taxes to her majesty as parishioners of Whitcomb, and pay their tithe lambs, Eafter dues, and offerings to the rector or vicar of Whitcomb, which had been done, during their remembrance, for thirty years paft, and hope to prove it to have been time out of mind; that the owners of the faid thirty-five tenements, were conftantly written and acknowledged to be within the parish of Whitcomb, and fummoned before the juftices and commiffioners of the divifion wherein Whitcomb lies, and not in the divifion of Lydford, for making all public rates and taxes, and that there are other parochial bufinefs; that there are three forts of people threedefcriptions who have right to depafture their faid cattle within the faid Foreftmen, Ven. Forest of Dartmore, that is to fay, FIRST, Foreftmen, who are villmen, and Fo. owners and occupiers of the faid thirty-five tenements, who reigners, within are the queen's immediate tenants, and pay the faid yearly the precinctsand vicinities of the rents, and do all fuits and fervices, and in respect thereof faid forest, and are freed by the kings and queens, or by the prince of that the twofirft Wales, for the time being, of all tithes and duties pretended to have the liberty be due and payable, for or in refpect of the faid thirty-five of depafturing tenements, and new takes, by the rector of Lydford, or his prede ceffors, rectors of the faid parifh; and that the faid kings, queens, and prince of Wales, or their auditors, or receivers of the revenues of the faid foreft, have conftantly paid to the rectors of Lydford, for the time being, at Michaelmas, three pounds, in lieu and discharge of all manner of tithes due or payable to the faid rectors, and which they had received in full fatisfaction, not only for the tithes of the thirty-five tenements and new takes, but alfo for the tithes of cattle, and other matters and things of perfons, viz. cattle tithe free. thereon due due and payable for tithes in the faid Foreft of Dartmore. That THES COND fort of people who have a right to depasture in the faid foreft or wafte, are called Venvillmen, who are inhabitants within the purlieus and other precincts adjacent to the faid forest and waste, and pay to her majesty's receiver, as farmer, threepence, called Venvill Rent, and threepence a-year, called Night Reft, which was all that is to be paid by any Venviliman, or inhabitant within the purlieus of the faid foreft, for depafturing cattle therein, be their number what it will. That THE THIRD fort of people ufually depafturing cattle in the faid foreft, are called Foreigners, who dwell in parithes and places farther remote from the faid foreft, who do each of them pay for depafturing their cattle in the faid foreft, the rates or price commonly called the Princes Price, viz. twopence yearly for a horfe; three halfpence for a bullock; and fevenpence halfpenny for every score of fheep depaftured there; that no Foreftman, Venvillman, or Foreigner, depafturing cattle in the faid foreft, ought to pay BURNAFORD against TORRET AND OTHERS, any thing in lieu or fatisfaction of any manner of tithes what- and that the foever, for depafturing cattle upon the faid thirty-five tenements others are to pay or new takes, or for wool, lamb, corn, grafs, hay, or any other 31. a-year, thing arifing within the faid foreft, or in the purlieus, or precincts thereof, to the rector of Lydford, for the time being; and they infifted that the faid three pounds a-year is in lieu and fatisfaction of all tithes arifing within the faid foreft and the precincts thereof; and fet forth what tenements they held within the faid Forest of Dartmore, and parish of Lydford, the yearly value, and the titheable matters they had thereon. The defendants Ford and Webber, faid, that they are Ven- Two of the devillmen, living in the parish of Holme, adjoining to the Foreft of fendants say they Dartmore, and within the purlieus thereof, and that they had are Venvillen. depaftured on the faid foreft, a number of fheep, from which they had several fleeces of wool. The defendants faid, that about twelve years ago, D. Birchin- The defendants fbar, the plaintiff's predeceffor, filed his bill in this court (a) against state a former feveral of the then owners and poffeffors of the faid thirty-five fuit in this court. tenements for non-payment of tithes, and the faid thirty new takes, who in their anfwers infifted on the matters aforefaid, and on the hearing of the cause the court referred it to a trial at law, upon two iffues, First, whether the then defendant's tenement did lie in the parish of Lydford, or the titheable places thereof; Secondly, whether the faid three pounds a-year were paid in difcharge of all tithes, for and in refpect of the fame; that the defendants did try it on the firft iffue, and the plaintiff obtained a verdict against the defendants, whereupon they paid the tithes then fued for; that the faid Birchinfhaw, hearing that the defendants would rehear the cause in parlia ment, or by bill of review, furrendered the rectory to the plaintiff in the year 1702; that after the decree Birchinfbaw did (4) See Birchinshaw v. Wilcock, ante, page 287. Gg3 profecute againf TORRIT AND OTHERS. BURNAFORD profecute another fuit in this court, against Parfons and others, for the tithes of depafturing cattle, and of wool and lamb fallen within the faid foreft, who infifted that they were Venvillmen, and lived within the purlieus, and paid the duties and customs aforefaid, belonging to Venvillmen, and having proved the fame, upon a commiffion for examining witneffes, he difmiffed his bill, and paid the defendant's cofts; and they concluded by faying, that they hoped to prove that they ought to pay no tithes, not being within the parish of Lydford aforefaid. The question. The evidence. The plaintiff replied; the defendants rejoined; and witnesses were examined on both fides. The cause came on to be heard on the thirteenth instant, when it was infifted upon by the defendant's counsel, that the lands held by the defendants, out of which the plaintiff demands tithes, do not lie within the parish of Lydford, and that if they were within the said parish, yet there is a modus of three pounds per annum, yearly paid to the rector of Lydford, in lieu of all tithes arifing upon the Forest of Dartmore, and that the defendants Ford and Webber, as Venvillmen, are not liable to pay tithes to the plaintiff. Upon debating the matter, and reading the depofitions of divers witneffes, examined on behalf of the defendants, and several ancient records and accounts of minifters, and officers of the revenue of the Duchy of Cornwall, remaining in the auditor's office of the faid duchy, touching the payment of three pounds a-year to the rector of Lydford, for the tithes of agiftments within the faid Forest of Dartmore, one of them being in the fecond year of Richard the Third, and the other in the fifth year of Henry the Seventh, and another in the twentieth year of the fame king; and an order made the eleventh of February, the fifth year of Charles the First, in a caufe of French v. Barber, then rector of Lydford; and an entry in a book remaining in the furveyor's office of the faid duchy, dated the nineteenth of February 1613, and an indenture of leafe, dated the nineteenth, of June, in the feventeenth year of James the First, made by the then Prince of Wales to Richard Harbyn; and a copy of a grant made the twenty-first year of Henry the Third, to the then rector of Lydford, of tithes of the herbage of the Foreft of Dart more; and a copy of the fettlement made by Walter, the lord bishop of Exeter, in 1260, upon the application of the parishioners of Lydford, by the confent of the patrons and parfons of Lydford and Whitcomb, taken out of a register book of the bishop of Exeter; and several records of accounts of minifters, and officers of the revenue of the Duchy of Cornwall, in the twelfth, fixteenth, feventeenth, and nineteenth years of Henry the Eighth, and the fifth, fifteenth, fixteenth, and twenty-eighth years of Elizabeth; and feveral acquittances under the the hand of Richard Pote, clerk, heretofore rector of Lydford; and several depofitions in a cause of Birchinshaw v. Townsend, in this court; alfo on reading depofitions taken in the reign of Charles the First, in the cause of French v. Barber, a copy of a record of a trial had in an action brought by Pole v. Croffman for tithes arifing upon a tenement poffeffed by him in the faid Foreft of Dartmore, whereupon a verdict was found for the plaintiff; and upon reading feveral proofs for the defendants, and upon confideration of what was infifted upon by the counsel, THE COURT declared the plaintiff ought to be relieved in this cafe. BURNAFORD against TORRET AND OTHERS. year IT IS THEREUPON ORDERED AND DECREED by the Court, The payment of that the said several defendants fhall account with and fatisfy the faid 31. athe plaintiff for the tithes of the feveral titheable matters barren cattle on for feeding and things which they had renewing and arifing upon the the faid foreft tenements and lands which they held and occupied within the decreed. Forest of Dartmore, and parish of Lydford, or which the faid defendants, or any of them had otherwife arifing, &c. in and upon the faid forett, except only for tithe lamb, payable to the vicar of Whitcomb, pursuant to the award of Walter, bishop of Exeter, and the tithe of herbage for the foreft, and barren cattle fed on the foreft, for which the faid fum of three pounds per annum, is payable to the plaintiff out of the high rents of Lydford; and it is referred to the deputy remembrancer to take and report the said account. In pursuance of the above decree, the deputy remembrancer made his report, dated the twenty-eighth of May last ; and upon reading the decree and the report, without exceptions, and no counsel attending for the defendants, it is ordered by the Court, that the faid report be ratified and confirmed, and that the feveral defendants fhall forthwith pay to the plaintiff, the feveral fums reported due from them to the plaintiff, for their tithes, according to their anfwer, amounting in the whole to fix pounds, fixteen fhillings, and fixpence. EDW. WARD. THO. BURY. ROB. PRICE. THE ATTORNEY GENERAL against BREWSTER and Others. London and Middlefex, 3d May 1705. EASTER TERM, 4 Q. ANNE. THE attorney general, as well on behalf of her majefty, as The curacy of the alfo for and on behalf of 7. Wells, clerk, mafter of arts, church of St. Bo. and curate or chaplain of the parish church of Saint Botolph tolph's, Aldgate, the appointment of the rector of the parish. withous Gg 4 BREWSTER THE ATTOR without Aldgate, in the city of London, filed his bill, fetting forth, NEYGENERAL that R. Hollingworth, D. D. having a grant or nomination under against THE GREAT SEAL OF ENGLAND, from Charles the Second, of the AND OTHERS. chaplainfhip or curacy of Saint Botolph, Aldgate, did, by virtue thereof, poffefs and execute the fame, and, about the fixteenth of January 1700, duly refigned his faid grant, by deed, duly inrolled, into the hands of William the Third; that Williams the Third, by his letters patent, dated the twenty-second of January 1700, granted the fame to William Savage, bachelor in divinity, who was put into poffeffion of the defk and pulpit of the said church, by the churchwardens of the said parish; that the faid William Savage, by deed duly inrolled, dated the feventh of January, in the first year of Queen Anne, refigned the faid grant or nomination to her majefty, who, by letters patent, bearing date the thirteenth of the faid month, granted the fame to the relator for life, with all ftipends, falaries, and perquifites thereto belonging; that he thereupon obtained a license from the bishop of London, to perform divine offices in the faid church; that her majefty and her royal ancestors, kings and queens, have ever fince the diffolution of monafteries (the faid church formerly belonging to the priory of Christ Church in London), conftantly nominated and appointed the curate or chaplain of the faid church and parish; that Sarah and Elizabeth are the heirs at law to Sir C. Umfreville, deceafed, who was owner of the faid rectory; that the faid rectory is defcended to them in fee, or else he hath made fome fettlement or conveyance in trust for them or one of them; that the defendants, together with William Kennet, D. D. did by confederacy feek to defeat the crown of its right to the faid curacy, and did refufe to let the relator perform divine fervice in the faid church, pretending that the faid Kennet was nominated and appointed to be curate of the faid parish by them, and that they have a right to put in and difplace the faid curate at their will, and also, that the faid Umfreville, in his lifetime, had, or the confederates fince his death have, obtained fome judgment in ejectment for one meffuage, and would extend the fame to the faid church of Aldgate, and have taken out execution thereon, all which they justify under colour of certain letters patent of James the First, dated the twenty-fifth of May, in the feventh year of his reign, whereby the faid rectory and impropriation of Saint Botolph without Aldgate, is, amongst other things, granted to F. Morris and F. Phillips, under whom the defendants claim, whereas in the faid letters patent, there is excepted and referved to his late majefty the donation, fee, difpofition, and right of patronage of the faid church, and all the churches, vicarages, and chapels, and other ecclefiaftical benefices whatfoever, in the faid letters patent contained, or belonging, or incident to the fame; that in the faid letters patent the penfion or falary of eight pounds a-year, is exprefly reserved to the curate, and forty 2 fhillings |