CASES. had the aforesaid tithes of hops, wood, hay, wool, and lambs, the tithes of all which amounted to 71. 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. 1657. Coe, clerk, V. Mason. equity lies A bill in to be reliev notwith Hele and others v. Pronte. [Decree Book, 16th Nov. 1 Wood. 45.] * 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 Oglander v. Lord v. Ordayno, infra, 1668. Pomfret, infra, 1244. Manby v. Curtis, 2 Pri. 284. infra, vol. ii. Carr v. Heaton, 7 Bro. P. C. an action at c. 13. gives infra, 1258. Byam v. Booth, 2 Pri. 260. infra, 1657. Hele and others V. Pronte. [ 511 ] 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. In an Eng 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, whether 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. Doble v. Potman. [Hardr. 160.] 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 plaintiff's 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, 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 the court. decimandi be alleged no other wise than by way of answer to To an English bill for tithes of certain houses in London, accord- If a modus ing 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 held that the modus being alleged no otherwise than by way of 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 an English bill for tithes, the 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. 1658. swer to all [513] other parts of the bill; but, if he pleads it, their rents, and answered to all parts of the bill; but, if the defendants had pleaded it, they need not have answered to any other matter. And so it was ruled, though objected, that if the proofs were against them upon the modus, they might then answer upon interrogatories, to the particulars. answer to any other matter. Vide infra 628. Gumley v. Fontleroy, contra, as to this point. In a declaration on of 2 & 3 E. 6. the M. 12 Car. II. A. D. 1660. Scac. Phillips v. Kettle. [Hardr. 178.] IN debt upon the statute of 2 & 3 E. 6. the plaintiff declared, the statute that he was rector of St. Martin's All Saints, and that by reason thereof he ought to have the tithes of 100 acres of land in the said parish of St. Martin's All Saints, and the tithes of 80 acres of land in the parish of St. Martin's Genavesee, without shewing how he became entitled to the lands out of his parish. This was holden by the court to be well enough after verdict: besides that, a general allegation without shewing a title, is well enough in this action. plaintiff need not shew how entitled, though he claims tithes of lands in another pa rish. Defendants must an bill for dis Cage v. Warner and another. [Hardr. 182.] THE bill charged, that the plaintiff in the month of May 1658, swer an in- became incumbent of the church of Bearested in Kent; and that cumbent's the defendants in June 1658 and 1659, by colour of an order of sequestration, made by the committee, in the county of Southampcovery of tithes illeton, as they pretended, had seised divers tithes of divers parishioners, gally seised, with all the within the plaintiff's parish, due to the plaintiff; and to discover particulars the particulars of the tithes so taken, and their values, and to have them paid to the plaintiff, was the scope of the bill; to which the defendant demurred, because it is a matter determinable at law, and a criminal matter; but the court put the defendants to their answer, because it is matter of discovery. and values. The vicar of Canew down in custom T. 18 Car. II. A. D. 1661. Scac. Devereaux v. Radley. [1 Wood. 66.] THE bill set forth, that, for two years past, the plaintiff hath been vicar of the vicarage of Canewdown, in the county of Essex, and entitled to have and receive tithe of herbage and all other small tithes of what kind soever growing, &c. within the said parish or the pound the bounds and precincts thereof, or to have other customary duties in lieu of tithes by prescription, custom, or endowment: that the marsh lands defendant for five years past had been the farmer of a marsh and the tithe of pasture ground there, containing seven hundred acres, and had fed the herbage thereon great stores of cattle; that he withholds from the plaintiff the tithes and customary dues for the said cattle, and all other on the rent of certain in lieu of of the said lands, tithes; that every farmer of lands, when depastured with cattle within the said parish, have used to pay to the vicar there three shillings and sixpence in the pound for every pound the lands are rated at in lieu of tithe herbage, or some satisfaction for the same; that the defendant, being occupier of the said marsh for two years past at the rent of 210l. a year, did depasture thereon divers cattle for which there is due yearly to the plaintiff three shillings and sixpence in the pound, which the defendant refused to pay, and therefore he prayed a discovery and satisfaction for the same. The defendant confesses, that he holds lands which lie part in Canewdown, and part in the parishes of Althorne and Crivey, at the yearly rent of 2201. and that the land lying in Canewdown is yearly worth 2001. a year; that he hath rented the same for twenty-four years past, during all which time he hath usually paid to the vicar thereof twelve-pence in the pound for every yearly pound rent; and that he usually paid the vicar yearly eleven pounds and no more, being twenty shillings more than the twelve-pence in the pound, which was always received by the former vicars; and that the usual payment for marsh land which was grazed was no more, and which he was willing to pay; and he set forth the number of cattle he fed thereon. The plaintiff replied, and witnesses were examined on both sides upon opening the pleadings, and reading the depositions of several witnesses in the said cause. For that it appeared that the pastures, whereof the tithe herbage is demanded during one year and a half, were wholly depastured with barren cattle, and such as yielded no titheable profit ; and consequently of common right tithe herbage is due for the same; and forasmuch as it appeared that the said pastures are and have been usually let for 2001. per annum, and consequently in an ordinary estimate the tithe herbage of the pastures aforesaid being so employed as aforesaid amounts yearly to twenty pounds, viz. two shillings for every twenty shillings; and according to such rate the tithe herbage hath been usually rated and paid in the said parish, when the pastures or marshes have been so fed and depastured. 1661. Devereaus V. Radley. Defendant says that the usage has been to pay only 1s in the pound. pay 2s. in It is ordered by the court that the defendant shall pay to the Defendant plaintiff thirty pounds in lieu of tithe herbage for the said marsh ordered to or pasture grounds held by him within the said parish for one year the pound. and a half, which is according to the rate of two shillings in the pound by the year, for every pound rent the said lands are rented at, the same being rented at 200l. per annum. (a) (a) See Holbeech v. Taylor, 1 Wood, 66. Taylor v. Coles, 4 Wood, 45. n. Simpson v. Tucker, 1 Wood, 197. Bull v. Till, 2 Wood, 175. Strode VOL. I. I i v. Bickham, 1 Wood, 269. cases where customary payments by way of poundage have been allowed. |