TH CRISPE against MICKLEBURGII. Norfolk, 21st July 1709. TRIN. TERM, 8. Q ANNE. in Eingham, Norfolk, claims modus of 2d, an acre for meadow ground, and tithes for the aintent of cat tle on that part of Melle Fin which lies in HE bill ftated, that for twenty years laft paft the plaintiff The rector of had been rector of Ellingham, in the county of Norfolk, and, as fuch, was entitled to all tithes, duties, and profits whatfoever, a belonging to the faid rectory, and the titheable places thereof; that the defendant, for eight years paft, had been tenant and occupier of feveral acres of mowing ground in the parishes of Kirby Cane and Stockton, and five acres in Ellingham, for which he ought to have paid tithes in kind, or a modus of twopence an acre yearly in lieu thereof; that there is in the faid parifh a large, open, uninclofed common, of about three hundred acres, Ellingham. called Mickle Fen Paflure, or feeding ground, lying between and S. C. 1. Bro. extending itself into the feveral parithes of Kirby Cane, Stockton, P. C. 278. Gilfion, Ellingham, and other towns in the faid county, in which S. C. Rayn. the defendant, for the faid time, had put yearly to depafture s. C. 2. Eq. Abr. heifers, colts, and horfes, with other cattle, for which tithe 732. herbage was due to the plaintiff, yearly worth thirty fhillings, or S. C. 9. Viner, more, but that the defendant had refufed to pay the faid tithe 43. herbage due to him. The bill therefore prayed a difcovery of the caufe, Tran. modus for the faid mowing ground, and what quantities of hay he 2. Geo. 1. had made thereon; and alfo a discovery of his other tithes, and a fatisfaction for the fame. 115. 1001. See another admits the modus for the meadow but to Mickle Fen; The defendant appeared, and put in his anfwer, and thereby The defendant infifted on a modus of twopence an acre for the meadow ground; but as to the tithes of the feed of his cattle on the faid common, ground; called Mickle Fen, he stated, that the inhabitants of the refpective fays, that he parishes adjoining to the common had, time out of mind, paid lives in Kirly tithes for the cattle fed thereon to the incumbent of the parifh Cane, adjoining where the owner of fuch cattle lived, and where, in the winter and that he had season, they were kept; that he had paid tithe for his cattle aid the agiftfed on the faid common to the incumbent of Kirby Cane, in ment tithe which parish he lived, and to the rector of Stockton, where his the rector other farm lay; and that he had two parcels of Delé Land in Gilfton Common, where he had a right to feed cattle and cut alders, but could not come at thofe lands without driving over that part of the common, called Mickle Fen, which lay in the parish of Ellingham. The plaintiff replied; the defendant rejoined; and witneffes were examined on both fides; and upon reading feveral of the proofs taken in the caufe, thereof. to IT IS ORDERED BY THE COURT, that the defendant do account The Court defor the tithes of the cattle depaftured on that part of Mickle Fen cres the agift. which is in Ellingham, and alfo for twopence an acre for the meadow land in that parifh. ment to be paid to the rector of Ellingbam. CRISPE againf MICKLE BURGH. The defendant Micklebury appealed from this decree to the house of lords, infifting, that no tithes had ever been paid, or were due to the rector of Ellingham, for his cattle fed on Mickle But, on appeal, Fen, and admitting the modus of twopence an acre for the meathe decree is re- dow lands; and, after argument, it was refolved, that the decree verfed, for that of the court of exchequer should be reversed, because the custom the custom to pay that every farmer fhould pay tithes to the rector where he lived, was good; and that the plaintiff's bill in that court be dismissed, mer lives, is without prejudice as to his right to the modus of twopence an good. acre for the five acres of land in Ellingham. fuch tithes where the far TRIN. TERM, 8. Q. ANNE. The vicar of dlefex, is entitled herbs and fruits; WRIGHT against ELDERTON. Stepney, in Mid-THE bill stated, that the plaintiff had been, for twenty years, lawful vicar of Stepney, in the county of Middlesex, and to 35.6d. a-year, intitled to the tithes and profits of the faid vicarage; that the in lieu of the plaintiff's predeceffors, by ancient cuftom, conftantly did, and tithes of garden the plaintiff ought now to receive threepence, at Eafter, for to 3d. a-year every perfon above fixteen years of age within the faid parish, to from every per- be paid by the mafter of the family where fuch perfons fhall fon above the dwell; and the tithes of all herbs, fruits, roots, milk, and pigs; age of fixteen, that the defendant had been a housekeeper in the parish for offerings; to 6d. eight years paft, and had, during that period, seven perfons in a year for every his family above the age of fixteen; that he had occupied, during though the faid time, two gardens and one orchard, which produced the parish; to roots, fruit, and herbs; that he had alfo fixteen acres of turnips, zod. a year for part of which he had pulled up and fold, and with the other every fow with part had fed his cattle; that he had alfo kept divers milch cows pig ; and to and pigs; the tithes whereof amounted to fifty-eight pounds, tithes in kind ten fhillings, and fixpence. in lieu of Easter cow, milked out of for the firft crop fed; but not to the tithe of turnips fown, as a the fame ground from which corn has been reaped and tithed. S. C. Bunb. 19. of turnips not The defendant contended, that the threepence for every perfon in the faid parifh, as in the bill is mentioned, was not of right due; that a modus of four fhillings an acre for each garden. fecond crop, on was due, in lieu of the tithes of garden herbs and fruits; and fixpence for each cow, in lieu of milk; and that he never knew any tithes paid for pigs; that the tithe of turnips was due when fown as a firft crop, and no other tithes paid for the fame ground that year; but that when corn had been fown in any year in the faid parish, and tithes paid for the fame after the rate of four or S.C. Rayn. 119. five fhillings an acre, according to the grain fown, and the fame land was afterwards, in the fame year, made to produce a crop of turnips, no tithes were payable for the fame, nor had any been before demanded; it being very unreasonable that tithes fhould be paid twice for the ground. He admitted that he had lived eight years in the parith, and had feven perfons in his family above fixteen years of age; but infifted, that the plaintiff was not entitled to threepence for each of them. He faid, that he had paid the plaintiff the rates he demanded for his tithes (a) See other caufes, Trinity Term, 13. Geo. 2. and Mich. Term, 32. Geo. 2. in the year 1702, for which he had a receipt; and infifted on the fame in bar of the plaintiff's demands to that time. He fet forth the number of cows which he had kept at Mile End, in the faid parish, in the year 1703; and alledged, that he had offered, and was ftill ready to pay the ufual modus for the fame; but infifted, that the cows which he had kept on Red Lion Farm being always milked in Whitechapel, he ought not to pay tithes, the farm house being in the parish of Whitechapel, and he having paid tithes for them to the rector of that parish. He confeffed, that in the year 1703 he had fowed thirty-three acres of land with turnips, part whereof he had fold, and with the remainder he had fed his cows; but he faid, that the greater part was sown that year with corn, for which he had paid tithes four or five fhillings an acre; and therefore infifted, that he ought not to pay any further tithes for the fame that year; and stated, that for fuch part as had not been fo fown he had offered to pay tithes, and was ftill ready fo to do; and he pleaded the tender of twenty pounds in fatisfaction thereof. THE COURT ordered the defendant to pay the tithes of his garden, at the rate of three fhillings and fixpence a-year, that being the ufual rate paid for the fame; and for Easter offerings, at the rate of threepence yearly for each perfon in his family above the age of fixteen years; and for tithes of all his milch cows, as well thofe kept on Red Lion Farm as those in the parish of Stepney, at the rate of fixpence a cow yearly, although the fame had been milked in the parish of Whitechapel; and alfo twentypence yearly for every fow that had pigs which were at any time kept in the parith of Stepney, although fuch fows pigged in the parish of Whitechapel, and alfo the tithes of turnips of the first crop not fed. But as to the tithe of turnips fown after corn reaped, the Barons were divided in their opinions, and took time to confider further of the fame; and on the eighth of December 1710, when the cause came on to be further heard, the question was argued by counfel a fecond time. THE COURT was of opinion, that tithes are not due for turnips fown upon land as an after crop, where corn hath been the fame year cut, and tithes paid for the fame; and thereupon ordered that the bill, as to the tithes for fuch turnips, be difiniffed. WALKER against WEBB. Herefordbine, 10th June 1710. TH therein. 114 WRIGHT against ELDERTON. TRIN. TERM, 9. Q. ANNE. WALKER against parfonage is di The defendants, by their answer, faid, that they knew not with what tithes the faid vicarage was endowed, but that there were WEBB. two halls or portionary parfonages or prebends of the faid The defendants church, the one called the Upper Hall, and the other the Lower fay, that the Hall; and that J. Benfon and 7. Clarke were prefented to the vided in two faid portionary parfonages, and were thereby entitled to the portions, called tithes of hay, corn, and fruit, in that part of the parish called Upper Hall and the Forren or outpart of the faid parish, of all titheable lands Nether Hall, and there that were not difcharged of tithes, as feveral estates there the portionaries entitled to the were; but that there was a modus decimandi, payable, time out tithes of hay, of mind, yearly, out of all the eftates in the Forren, except fuch as corn, and fruit, were exempted from tithes, for all the tithe hay and fruit in fuch eftates in the Forren; that fuch modus had been fettled and estathat the vicar is blished by a decree in chancery about the year 1679; that the endowed faid vicarage had been endowed, and alternately prefented to, of hops, hay, by the parfons and portionaries for the time being, and was not and fruit in the endowed with any tithe of hops, hay, or fruit in the Forren, and Forren, but is but with tithe hay and fruit in the Burrough, there being no tithe entitled to the hops paid in the Burrough; that about thirty years ago there had tithe of hay and been a verdict at Hereford aflizes for J. Skipp and J. Elton, farmers of the faid portionaries, against C. Townsend, the then vicar, for tithe hops in the Forren (a), that the mortuaries were that fome of the payable to the faid portionaries, and not to the vicar; that ail or demefne lands fome of the demefne lands of the manor of Ledbury, and the in the Forren. not with the tithe fruit in the Bur rough; are tithe free; (a) On the 6th June. Trinity Term, tenements. He alfo faid, that he was which ought to pay the tithe of corn, oats iffuing out of the faid portionaries, belonged to the vicar, fave only for feme buigages and farms for which no tithe had ever been paid to the vicar. The chief matter in difpute was, whether the vicar ought to have the tithe of Lops throughout the parish of Ledbury, except the glete of the portionaries, and the tithes of wood, herbage, and other small tithes of the demefne lands of the manor of Ledbury. The Court directed two iffues: FIRST," Whether or not the vicar "ought to have the tithe of hops in all "the parish, cr in any and in what part "thereof, except the borough and hos"pital lands;" which were not controverted. SECONDLY," Whether or "not the vicar ought to have the tithes "of wood, herbage, and other fmail "tithes anfing upon and out of the "demefne lands of the manor of Led"bury in the poffeffion of the defendant or his tenants But it does not appear in the exchequer tooks that there iffues were tried; or, whether any proceedings were afterwards had in the matter. But fee the cafe of Skipp v. Voke, Mich. Term, 21. Car. 2. ante, page 107. manors every WALKER againft WEEE. that there is a modus of id. a milch cow; that the portion mall tithes. manors of Upper Hall and Nether Hall,and the demefne lands and glebe, and fome other lands in the faid manors, were exempted from the payment of all or fome fmall tithes ; that there was a custom through the faid parith to pay one penny only for milch cow, in lieu of milk and cheefe. They denied, that by immemorial cuftom, prefcription, or otherwife, the vicar had been entitled to all, or had received any tithes of hay, hops, or fruit in the Forren; but faid, that there was a cuftom to pay to certain fums, certain fums of money, by the owners or occupiers of lands, to in lieu of the the portionaries, or their farmers, or leffees, for all tithe hay and tithe of hay and fruit in the Forren; but they knew not the particular fums, as the fuel; owners and occupiers paid different fums according to their respective eftates. They admitted, that the plaintiff ought to have that the vicar is the tithes of calves, fheep, lambs, wool, pigs, geefe, eggs, flax, entitled to other hemp, and herbage, and all other fmall and privy tithes in the Forren, except from fuch lands as were exempted from the payment of tithes, and except tithe hops to the portionaries; as alfo the modus for the hay and fruit; and a modus of one penny a cow only yearly, payable to the vicar in lieu of tithe milk and cheese. They denied that they had refused to pay to the plaintiff the tithes, mortuaries, or oblations that were due and used to be paid to the vicar, but by their anfwer offered to pay him all fuch as he was justly entitled to, except for what they had paid him, and except for hay, fruit, hops, milk, and cheese. And they fet forth what particular lands they held in the faid Burrough'; and what lands in the faid Forren; and what lands in each of the faid places were discharged of the payment of tithes; as alfo the particulars and values which they refpectively had; and what compofitions had been made; and what money had been paid by them or their landlords for the tithes due from them refpectively. the The plaintiff replied; the defendants rejoined; and witneffes On reading the were examined on both fides; and on reading the defendants evidence, anfwer, and the proofs taken in the caufe, and the defendant' Walker's answer to the crofs bill, and a decree of this court, dated the fixth of June, in the third year of Charles the Second, Townsend, clerk, plaintiff, and Skipp, defendant, and the poftea returned thereon, and feveral exhibits proved in the caufe, and on long debate, IT IS ORDERED BY THE COURT, that the faid defendants fhall be, and are hereby difmiffed of and from the faid bill, as to the tithe of hops, and alfo as to the reft of the matters and things in the faid bill contained. EDW. WARD. THO. BURY. S. LOVELL. PRICE |