1657. Coe, clerk, Mason. cept Valde bery and the tene ments in all and singular the tithes of hay, hops, lamb, wool, and woods, and all and singular the minute and privy tithes yearly from time to time coming and growing, &c. within the said parish and titheable places thereof, which had always been paid in kind; that the defendant, for divers years past, had been an inhabitant therein, to the said and for two years was occupier or possessor of divers lands, meadow church, exand pasture, parcel of and belonging to the manor of Branghingbury and the titheable places thereof, and planted hops, and cut down wood, and kept and depastured upon the said grounds sheep, from which he had lambs, and sheared the same, and had wool, and also cut down grass, and made the same into hay; the tithes of all which amounted to a large sum; all which tithes are due to the said plaintiff, and ought to have been paid in kind, or some composition made to him for the same; which the said defendant detained tithes arisfrom him, and refused the said tithes. He therefore prayed a discovery of his said tithes, and the values thereof, and an account and satisfaction for the same. the posses sion of the canons of the Holy Trinity in London, entitles him to all small ing in the parish. The defendant by his answer said, that it may be true, but that he knew not, that the plaintiff was appointed to officiate the cure of the said parish; that he believed the plaintiff for eight years past might have officiated the cure there, and have a right to all tithes formerly of right paid to the vicar; but he denied that time out of mind, or by ancient endowment, the vicar ought to have all tithes of hay, hops, and wood, and all minute tithes. The answer also stated, that for three years past he, the defendant, had inhabited in the said parish, and been farmer of lands there, parcel of the said manor; and he set forth his titheable matters, and the values thereof, and that he had paid no tithe at all to the plaintiff, conceiving there was none due to him, for that all the lands he occupied were and are demesne lands of the said manor, which were parcel of the possessions of the priory and canons of the Holy Trinity in London; that the church of Branghinge was long since appropriated to the priory and canons, and confirmed to them by the bishop of London, being bishop of that diocese; and that by an endowment made in the year 1218 it appears, that the vicar of Branghinge, in the name of the vicarage, "should wholly receive and fully possess [508] "all obventions of the altar, with the tithes and the vicarage-house, "and all the land to the said church then belonging (except the "croft called Valdebery, and except the tenants and their tenements "which in the portion or dividend of the canons should remain ;)" that, by virtue of the said endowment, the vicar there never could claim to have any small tithes of the tenants and occupiers of the said lands which the defendant holdeth within the said parish, the same being excepted from payment of any minute tithes to the vicar by the same endowment, the said lands, and also the minute tithes, Coe, clerk, V. Mason. 1657. being the portion or dividend of the said canons; that he never heard that any minute tithes, or any tithes at all, were ever paid or given to any of the vicars of Branghinge for any of the lands in his occupation; neither doth he conceive, that the said vicar hath any right or title to the same, either by prescription, endowment, or otherwise; that about thirty years since the owners or occupiers of Branghingberry, whereof the lands in the defendant's occupation are parcel, did, for some years, give to the vicars thereof for the time being five marks a year by way of gratuity, though the vicars pretended it an ancient payment in lieu of small tithes; and therefore insisted on his right to refuse to pay tithes. Copy of an endowment read, ex plaining the right of the The plaintiff replied; the defendant rejoined; and witnesses were examined on both sides. The cause came on this day se'nnight; and upon opening the pleadings, and reading a copy of an endowment extracted out of the principal registry of the late bishop of London, dated at Fulham, in the year 1218 (a), and proved to be a true copy, which seemed to explain the right of the vicarage tithes in question: the court [509] took time to consider of the same; whereupon the barons being attended with copies, the cause came on to be further heard this day; and upon full and deliberate hearing, vicarage tithes. And upon long debate of the matters in question, and touching the meaning of the said endowment; and upon reading the several depositions for the plaintiff touching the payment of the tithes in The court's question to the vicar of Branghinge for the time being; Forasmuch opinion. as it appeareth to the court, by the depositions of several witnesses, that the small tithes of hay, hops, wool, and other small tithes, have been paid in kind, or by composition, to the plaintiff, as vicar of Branghinge, and to his predecessors vicars there; and for that it is also proved by the plaintiff that the said defendant for the said years (a) The endowment, which I have extracted from the register in the registry of the diocese of London, is as follows: "Omnibus sanctæ matris "ecclesiæ filiis ad quos præsens scriptum pervene"rit Willielmus Dei gratiâ London, episcopus salu"tem in Domino sempiternam. Cum venerabilis "in Christo pater Cardinalis tituli sancti Martini "presbiter cardinalis apostolicæ sedis legatus auc"toritate legationis suæ dilectis in Christo filiis "priori et canonicis sanctæ Trinitatis London ec"clesiam de Branghing, quæ ratione patronatûs "ad eosdem canonicos pertinebat, ob devotionem et "obedientiam, quam in perturbatione regni Angliæ "sanctæ Romanæ ecclesiæ impenderunt, piâ con"sideratione contulerit, et cartâ suâ, quam inspex"imus, confirmavit: Nos attendentes eorundem "canonicorum conversationis honestatem, et reli"gionis fervorem, eandem ipsis ecclesiam cum "omnibus ad eam pertinentibus intuitu pietatis "concessimus, et episcopali auctoritate in usus pro"prios confirmavimus eis et ecclesiæ suæ perpetuò "possidendam. Salvâ perpetuâ vicariâ presbitero " vicario nobis et successoribus nostris ab eisdem "canonicis præsentando, et residentiam ibidem "facturo cum socio idoneo capellano. Qui quidem " vicarius, nomine vicariæ, omnes obventiones alta"ris cum minutis decimis, et managio, et totâ terrá "ad eandem ecclesiam tunc pertinente (exceptá "croftâ illâ, quæ vocatur Ealdeberi, jacente a "parte Australi managü prætaxati, et exceptis "tenentibus et eorum tenementis quæ in portione "canonicorum remanebunt) integrè percipiet et "plenariè possidebit, et omnia onera episcopalia et "archidiaconalia ad ipsam ecclesiam spectantia "consueta et debita sustinebit. Et ne futuro "tempore possit hæc nostra concessio aut confirm"atio occasione qualibet irritari, hoc scriptum "sigilli nostri munimine duximus roborandum.. "His testibus, &c. Dat. apud Fulham anno "Domini millesimo ducentesimo octavo decimo, "Sextodecimo cal. Mai pontificatús nostri anno "nonodecimo." Fitz-Jam. 55. Stokesly, 110. Coe, clerk, V. Mason. had the aforesaid tithes of hops, wood, hay, wool, and lambs, the 1657. tithes of all which amounted to 77. 4s. 8d.; and the court being of opinion, that by the said endowment the said plaintiff is entitled to all the small tithes arising within the said parish; it is thereupon finally ordered, adjudged, and decreed by this court, that the said defendant shall forthwith pay unto the said plaintiff, or to his assigns, the said sum of 71. 4s. 8d. for the value of the said tithes by him detained from the said plaintiff. (a) M. 9 Car. II. A. D. 1657. Scac. notwith Hele and others v. Pronte. [Decree Book, 16th Nov. 1 Wood. 45.] THE bill stated that the plaintiffs, ever since the 25th of March, A bill in equity lies in the year 1653, had been lawful owners of the rectory impro- to be relievpriate of North Petherwin, in Devonshire, with all tithes and pro- the subtraced against fits thereunto belonging; that, time out of mind, all the tithes of tion of precorn and grain growing therein, and the titheable places thereof, dial tithes, had been always paid to the rectors and owners thereof in kind, standing or a composition for the same; and that the defendant had been *yearly owner of 20 acres of arable land within the said rectory, and yearly mowed wheat, barley, oats, and other grain, and carried the same away without setting out the tithe thereof regularly. The bill therefore prayed a discovery of the quantity and the value, and that the defendant might be decreed to pay the same. The defendant appeared, and put in a demurrer and answer. And for demurrer he set forth, that between the 25th of March, 1653 and the 25th of December, in the said bill mentioned, he was owner of 20 acres of arable land within the said rectory, sown with wheat, barley, oats, and other grain, and yearly mowed the same, and converted the same to his own use, and that the tithes thereof yearly were worth 57. but that he is advised that the subtraction of predial tithes by the not setting out of the tithe from the nine parts, and the unequal division thereof, are matters which may be relieved at law upon the statute 2 & 3 E. 6. c. 13. and therefore the plaintiffs ought not to prosecute any suit in equity for the same; the said plaintiffs not having set forth any certain title to the tithes, or shewed how long since their estate therein might commence since the subtraction of the said tithes. The defendant also set forth the titheable matters, and denied any fraud in setting out tithes. (a) On the construction of endowments. See Devie v. Lord Brownlow, infra, 1128. Fynes v. Ordayno, infra, 1668. Oglander v. Lord Pomfret, infra, 1244. Manby v. Curtis, 2 Pri. 284. infra, vol. ii. Carr v. Heaton, 7 Bro. P. C. the statute 2 & 3 E. 6. c. 13. gives an action at law. [510] infra, 1258. Byam v. Booth, 2 Pri. 260. infra, vol. ii. Fox v. Bardwell, Bun. 327. infra, 716. Cunliffe v. Taylor, 2 Pri. 329. infra, vol. ii.; and see Ellis on the pleadings in Suits for Tithes, p. 18. et seq. where the cases are collected, 1657. Hele and others V. Pronte. [ 511 1 An English bill lies in quer, for non-pay. ment of tithes in The plaintiffs replied to the answer; the defendant rejoined; and witnesses were examined on both sides. And upon opening the pleadings, and reading the evidence, and upon full debate, It is ordered by the court, that the defendant shall pay to the plaintiff 7s. 6d. proved to be due and detained for tithes complained of by the said bill, and shall at all times hereafter duly tithe and set forth the tithe of corn and grain arising, &c. in the said parish and titheable places thereof by itself, so that the said plaintiffs or their servants may for the future take and carry away the same without any trouble or denial from the said defendant, or any claiming by or under him. Tr. 10 Car. II A. D. 1658. Scac. Langham v. Baker and others, parishioners of St. Helen's, London. [Hardr. 116.] THE plaintiff, as farmer of the impropriate rectory of the said the exche church, prefers his bill here against the defendants for not paying their tithes in London, according to the decree in statute 37 H. 8. c. 12. to which the defendants plead the said decree, and that the plaintiff hath his remedy before the mayor of London, by the act of parliament, which settles the decree; and demand judgement, whether or no this court will take cognizance of the matter? London, ac cording to the decree in st. 37 H. 8. c. 12. Hardr.116. pl. 1. And it was held clearly, that the court had jurisdiction in this cause; for that it appears by the very decree itself, and the act of 37 H. 8. and by Lindwood de decimis, that tithes were payable in London before the said act, for houses; but the quota was doubtful, which is remedied by the said act and decree; and the act has no negative words; it is not said, "before the mayor of London, and Supra 228. not elsewhere." See Scudamore's case, cited 2 Inst. 659. Co. Mag. Chart. upon 2 E. 6. and tithes were determinable here ab antiquo, as appears by 38 Ass. Selden de decimis (a), 4 E. 4. and by Articuli Cleri, c. 4. In the case of the king and his farmers, the cause follows the person, and his privilege; and this case is not to be resembled to cases where justices of peace are empowered by act of parliament; and for that cause justices of oyer and terminer have nothing to do, nor justices of gaol-delivery; and so vice versa, 11 Rep. Doctor Forster's case; for they have but a limited jurisdiction; and the king's farmer has, in respect of the revenue, the same personal privilege that the king has; and, without question, the king may sue here; and it was ruled, that the defendants answer over. (a) Chap. 14. Tr. 10 Car. II. A.D. 1658. Scac. Button v. Honey. [Hardr. 130.] 1658. Button V. Honey. lish bill for plaintiff IN an English bill for vicarage tithes, in some towns in Kent, the plaintiff did not set forth in his bill, how they became due to him, In an Engwhether by prescription or endowment, as he ought to have done; vicarage and exception was taken to this at the hearing, after answer and tithes, depositions: and the exception over-ruled, because the defendant need not does by his answer admit him to be vicar, and that the tithes in [512] question are his due; but insists only upon payment and satisfac- how they tion. Which note: for it has often been ruled contrary, it being the ground and foundation of the plaintiff's bill: but the bill was afterwards dismissed upon the merits, with 40s. costs. Tr. 10 Car. II. A. D. 1658. Scac. set forth became due whether by prescription or endowment. Vide infra. to him, entitle UPON a cross bill against a parson to discover what sort of tithes In a cross bill, the in particular he claims to be due to him; for that the parson plaintiffs in his bill one while demanded one manner of tithing, and another need not time, another; the court held, that in such a cross bill, the plaintiffs themselves need not entitle themselves to the jurisdiction of the court, because to the juristhe cross bill is grounded upon another bill here in court; as, the court. if a man be sued here in the office of pleas, he may have an English bill to be relieved against the plaintiff, without setting forth matter of jurisdiction. (a) M. 10 Car. II. A.D. 1658. Scac. Langham v.Sparstowe and others, parishioners of St. Helen's, London. [Hardr. 130.] diction of If a modus decimandi be alleged no other wise than by way of To an English bill for tithes of certain houses in London, according to the act of 37 H. 8. c. 12. and to have a discovery of the improvements of rent; the defendants, in their answers, set forth a customary payment in lieu of all tithes; and exception was taken to their answers, because they did not discover their rents (b), but relied upon their answer de modo decimandi. And the court bill for held that the modus being alleged no otherwise than by way of tithes, the answer, they ought likewise to have set forth the particulars of must an (a) On cross bills in suit for tithes. See Coventry v. Burslem, infra, 1596. Howell v. Franklin, infra, 1348. Wake v. Conyers, 1 Eden. 334. Gordon v. Simpkinson, 11 Ves. 509. infra, vol. ii. ; and Ellis on the pleadings in Suits for Tithes, p. 32. et seq. (b) The answer, as stated in the decree-book, was in this respect as follows: "And all the said " answer to an English defendants "defendants did severally and respectively set "forth by their said answers the particular rents "of their houses, which they alleged to have been "their ancient rents.' An issue on the custom was directed to be tried at bar by a jury of the county of Kent, but the event of that trial I have not been able to discover. |