FANE against MARTIN. The defendants admit his title The defendants plead, as to the tithe hay demanded in kind, that within the faid parish of Westbury there is a cuftom, whereof the memory of man is not to the contrary, that the poffeffors of lands within the faid parish have accustomed to pay to the rector to tithes, but fet or owner, yearly, or at any time afterwards, upon request, after up a modus of the rate of twopence an acre, in lieu of tithe hay; and that the 2d. an acre in faid rectors and owners have received and accepted the fame lieu of tithe hay. accordingly, They ftate alfo, that the faid plaintiff was, they believed, for seven years paft, owner of the faid rectory of Westbury, and intitled to all the duties and payments; and that all the faid tithes, duties, and payments (except tithe hay), have always been paid in kind, or fatisfaction made for the fame; and that they are ready and willing to pay the faid cuftomary payment for the tithe hay. An iffue direct modus. To which plea and anfwer the plaintiff replied; the defendants rejoined; and witneffes were examined on both sides ; and upon hearing the said cause, THE COURT, as to the faid modus, ordered a trial at law; ed to try the and as to the tithes confeffed to be due to the plaintiff, that the fame fhall be referred to the auditor of the county to compute and cast up the fame, and return his certificate to the court. 24th Jan. 1666. An action was accordingly brought, and tried at the bar of this A verdict for the court; and, upon full evidence, a verdict given for the plaintiff, plaintiff. that there was no fuch custom within the faid parish of Westbury, whereof the memory of man was not to the contrary, that the poffeffors of lands within the faid parish were accustomed to pay to the rector or owner, yearly, or at any time afterwards, upon requeft, after the rate of twopence in the acre in lieu of tithe hay, or that the faid rectors or owners did receive or accept the fame accordingly in lieu of tithe hay. 13th June 1667. The thes deceed in kind. It was referred to the auditor of the county to compute the value of the tithes ; and upon the return of his certificate, IT IS ORDERED BY THE COURT, that the faid certificate shall be confirmed; and that the defendants shall pay the feveral fums of money certified due, being in the whole ten pounds, ten fhillings, and fixpence. HALE, Chief Baron. INGLEBY THIS INGLEBY, Knt. against WYVELL. Yorkshire, 22d May 1666. EASTER TERM 18. CAR. 2. The The prebend of Sten- Studley, in the HIS caufe came on to be further heard this day (a). fcope of the bill was, to be relieved for the tithes of ningforth, as proprietor of the prebend of Studley, late parcel of county of York, the late diffolved collegiate church of Rippon. discharged from the payment of tithes, as having The defendants alledged, that they were difcharged from the formerly belongpayment of tithes, for that the lands which they hold in Stenning ed to the abbey forth belonged to the abbey of Fountaines before the fecond of Fountaines. council of Lateran; which abbey was of the Cillertian order. See S. C. Hard. And because it appeared to the Court, upon feveral hearings of the faid caufe, that there had been several trials at law, and verdicts on both fides; and upon the plaintiff producing in court an ancient compofition between the abbot of Fountaines and the church of Rippon, and moving to have another trial at the bar of the court, by which he would be concluded, IT WAS ORDERED, on the fixth of February, that the defendants should set forth the tenth lamb and a tenth fheaf; and the plaintiff bring his action of trover and converfion 'against the defendants for the fame; the venne to be laid in the county of Middlefex; and both tides, by confent, to admit the faid fetting forth, and alfo the trover and converfion, and to infift only upon the right. The defendants counfel now informing the Court, that a trial had been accordingly had, and a fpecial verdict found (6), and final judgment given thereon; and praying that the defendants might be difmiffed; IT IS THEREUPON ORDERED BY THE COURT, that the defendants be and ftand difmifled this court of and from the faid bill, and the matters and things therein contained, without prejudice to the plaintiff's modus. (a) See ante, page 24. (6) See the fpecial verd.& given in this cafe, and stated at length, with the arguments of counsel, and the judgment of the Court, Hardres, 381 to 387.See alfo the cafe of the Dean and Chapter of Rippon, poft. 23d February 1756, 381. TULLY, EASTER TERM 18. CAR. 2. dale Foreft, ac 272. 282. 2. Vern. 46. TULLY, Clerk, against HALSALL and Others. The rector of THE plaintiff, as rector and parfon of the parifh-church and See the cafe of Bafire v. Wharton, post. Mich. Teim, 19.Car.2. post, The defendants ore Grove and Pick The defendant Halfill anfwered, and made a title to himself admit they dig of the liberty of digging pits within the faid foreft; and that he, in Gras with others, about four years fince, let the mines called Grafs loom, within the Groves and Picklcom Groves to three of the defendants, for a yearly faid foreft, but rent; and, therefore, the plaintiff cannot demand any tithe of deny the custom him, if any be due. to tithe the ore, becaufe thofe The defendant Rae difclaimed that he had any part or portion in the faid lead mines or lead ore, and said, that he only acted as a workman. The other defendants, Briggs, Gray, and Bacon, faid, that the places were the faid foreft is the king's ancient demefne, and that they had been ancient farmers of the faid mines for three years paft; they denied king's demefne. Three iffues di cuftom. the custom, or that they pretended any compofition of forty fhillings a-year; and faid that it was a voluntary gift to the rector, and not in lieu of any tithes. The plaintiffs replied; and witneffes were examined on both fides. Upon reading the depofitions of feveral witneffes, and other rected to try the evidences on the behalf of the plaintiff, and on long debate thereon, for that the faid defendants, by their anfwers, had denied the faid cuftom, IT IS ORDERED BY THE COURT, that it be referred to a trial at law upon thefe iffues, against the defendants Briggs and others. FIRST, Whether there be a cuftom within the parish of Middleton, in Teafdale aforefaid, to pay to the parfon there, for the time being, tithes in kind of lead ore gotten within or out of the faid Grass Groves and Pickloom Groves, or either of them? and that if there be any fuch custom there, then, SECONDLY, Whether the faid cuftom be to pay the faid tithes, without deduction of all manner of charges for digging, winning, and getting the faid ore? or, THIRDLY, With deduction of all manner of charges for digging, winning, or getting the faid ore? And as to the king's intereft, the king's counfel may interpofe if they please and the equity to be referved till after fuch trial had. TULLY aganft HALSALL AND OTHERS. a verdict found Upon which three iffues a trial was had, and the custom found 26th Nov.1666. for the plaintiff, upon the faid feveral iffues, as to Grafs Groves, A trial had, and but not as to Pickl om Groves; for that no lead ore, at any time for the custom within the memory of man, had been gotten out of the faid as to Grafs Pickloom Groves, to the knowledge of the jurors then impannelled Grove. to try the faid iffues. The plaintiff's counfel therefore prayed a decree as to the tithes. of lead ore within the feveral pits called the Grass Groves, for which the plaintiff had a verdict. Upon reading the said order and poftea, IT IS ORDERED BY THE COURT, that the faid defendants, Tithes of ore Briggs, Gray, and Bacon, fhall forthwith pay to the plaintiff, as dug in Grafs rector of the parish-church of Middleton aforefaid, one hundred Groves decreed. and twenty pounds clear, in full of the tithes of lead ore complained for in his bill, and alfo in full for his cofts of fuit. THE COURT FULL. TH FOSTER, Clerk, against CHINOR. Somersetshire, 14th May 1666. EASTER TERM 18. CAR. 2. rent lands in HE bill stated, that in the year 1645 the rectory of Aller was A cuftom alfequeftered from the plaintiff, then in the actual poffeffion ledged, and thereof; and that one John Moore, clerk, by colour of fome pre- proved, that outtended order of the then parliament, officiated there, and enjoyed dweliers who the profits thereof, until he was removed, and the plaintiff Aller Meor, in reftored again by act of parliament made in the twelfth year of the county of his prefent majefty's reign; and that he has ever fince officiated Somerfet, there; that there had been and was an ancient custom and usage pay to the rector a tenth part of in the parish of Aller, that every person being an out-dweller, and their rent, not an inhabitant there, who rented any meadows or pafture Eafter, in lieu grounds in the faid parish, lying in a level called Aller Moor of tithes. (except fhall at FOSTER against CHINOR. The defendant but denies the cuftom. (except Court Farm and Beere Farm), had alway paid, and ought to pay, yearly, to the rector for the time being, the tenth part, or full value of the tenth part, of all fuch rent and money as fuch perfons did pay or contract for to fuch as let the fame, in lieu of tithes; the fame to be paid yearly at Eafter after the end of every years in which the fame meadows or pafture were fo rented or enjoyed, and not before; that the defendant being then an out-dweller, and not an inhabitant of the faid parish, did, in 1660, rent and enjoy thirty-two acres of meadow and pasture ground in the faid level, called Aller Moor (and no part of the two excepted farms), at twenty-eight pounds per annum; for which year, by the custom aforefaid, he ought to have paid the plaintiff at Eafter after the year ended in 1661, fifty-fix thillings in lieu of tithes; but that he refufed to pay the fame; and therefore the plaintiff prayed relief in the premises. The defendant anfwered, and confeffed that in the year 1660 admits the facts, he was an out-dweller from the parish of Aller, and rented of feveral perfons thirty-one acres of meadow and pasture, at twenty-feven pounds per annum; that the time for which he rented the fame commenced at Christmas 1659, and expired at Martinmas 1660; and that the fame lands did lie in Aller Moor, and were no part of the faid two excepted farms; that he believed the tithes, or compofition in lieu thereof, amounted to two pounds fixteen fhillings, which he paid to the faid John Moore, pursuant to a writing fubfcribed by the plaintiff, by which he defired all the parishioners, and others from whom tithes were due for the year 1660, to pay the fame to the faid John Moore, and he averred the faid John Moore had accounted with the plaintiff for the moiety of the defendant's tithes, and that the plaintiff had accepted thereof; that he knew not of any ufage or cuftom of paying for agiftment tithes, or of the tenth of the rent, by out-dwellers at Eafter, and not before; but had heard that tithes were payable fourteen days after Michaelmas in the year the lands are rented; which was a further reafon for his paying the faid tithes to the faid John Moore. The Court of custom was fully proved. The plaintiff replied; the defendant rejoined; and witnesses opinion, that the were examined on both fides; and upon reading the depofitions, and long debate, for that the custom laid in the bill, that the out-dwellers who rent any lands in Aller Moor have used and ought to pay to the minister there, for the tithe thereof yearly, fo much money as the tenth part of the yearly rent of the land they fo hold amounts to, the fame to be paid every year at Eafter only, and not at any other time, for the tithes accrued for the year then paft, is fully proved. The tenth part IT IS ORDERED BY THE COURT, that the defendant shall pay of the rent de- to the plaintiff two pounds fixteen fhillings charged in the bill for the tithes of the lands he held in Aller Moor aforefaid in creed. 1660, which he ought to have paid him at the feaft of Eafter THE COURT FULL 1661. |