« ElőzőTovább »
for this purpose. (Rex v. the Chapel-wardens of Milnrow, 5 Maul. and Sel. 248.)
Exceeding Authority of Warrant.] Where a constable, having a warrant of distress under 53 Geo. 3, c. 127, s. 7, broke the outer door of, and entered plaintiff's dwelling house, it was held that although he acted illegally, yet as it was not shown that he acted with
other intention than that of executing the authority delegated to him by the warrant, no action could be maintained after the expiration of three calendar months, (the limitation in the statute, s. 12) from the fact committed. (Theobald v. Crichmore, 1 Barn. and Ald. 227.)
Improved Wastes, Parish disputed.] By the 17 Geo. 2, c. 37, where there shall be any dispute, in what parish or place improved wastes, and drained and improved marsh lands lie, and ought to be rated, the occupiers of such lands or houses built thereon, tithes arising therefrom, mines therein and saleable underwoods, shall be rated to this, and all other parish rates within such parish and place as lies nearest to such lands : and, if on application to the officers of such parish or place, to have them rated as aforesaid, any dispute shall arise, the justices of the peace at the next sessions after such application made, and after notice given to the officers of the several parishes and places adjoining to such lands, and to all others interested therein, may hear and determine the same on the appeal of any person interested, and may cause the same to be equally assessed, whose determination therein shall be final.
“Rate on Quakers.] The church rate charged upon quakers may be sued for in the ecclesiastical court, as in the case of other parishioners ; but it is also recoverable before the justices of the peace, in the same manner as their tithes, which is the preferable mode of proceeding."
“By Can. 87. The archbishops and all bishops within their several dioceses, shall procure (as much as in them lieth) that a true note and terrier of all the glebes, lands, meadows, gardens, orchards, houses, stocks, implements, tenements, and portions of tithes lying out of their parishes, which belong to any parsonage, vicarage, or rural prebend, taken by the view of honest men in every parish, by the appointment of the bishop, whereof the minister to be one; and to be laid up
in the bishop's registry, there to be for a perpetual memory thereof.t
* Steer's Parish Law, pp 382—389.
Ecclesiastical terriers or surveys of the temporal rights of the clergyman in every parish made by virtue of this canon, are to be kept in the bishop's register office, as above directed. (Per Macdonald C, B. in Miller v. Foster, Grom. 1406.) They become terriers by being thus restored to the bishop. (Potts v. Durant, 3 Anst. R. 789. Gwm. 1450.) The three legitimate repositories of terriers and of rectors' and vicars' books, are the registry of the bishop or archdeacon of the diocese, and the church chest. (Armstrong. v. Henitt, 4 Pri, R. 216.) And semb. the originals must be produced; for copies of lost terriers were in a late case
be convenient also, to have a copy of the same exemplified, to be kept in the church chest. (God. Append. 12.)
“These terriers are of greater authority in the ecclesiastical courts than they are in the temporal, for the ecclesiastical courts are not allowed to be courts of record ; and yet even in the temporal courts these terriers are of some weight, when duly attested by the register. (Johns. 242.)
“ Especially if they be signed, not only by the parson and churchwardens, but also by the substantial inhabitants; but if they be signed by the parson only, they can be no evidence for him ; so neither (as it seemeth) if they be signed only by the parson and churchwardens, if the churchwardens are of his nomination. But in all cases they are certainly strong evidence against the parson. (Theory of Evidence, 45.)*
“Imperfect terriers, signed by churchwardens only, are now uniformly received in evidence, being signed by persons uninterested, whose duty it was officially to sign them.t Wood B. has explained this rule as only applying where they concern the parish generally. I In Mytton v. Hains § it was held, that old terriers recording that tithe of hay is payable in kind, signed by rector, churchwardens, overseers, and some of the resident parishioners, are good evidence to rebut the presumption of a farm modus attempted to be established by proof of a money payment having being uniformly rendered within living memory, and in the absence even of reputation that the tithe had ever been taken in kind; and that although such terriers are not proved to have been signed by any person interested in the farm. But Wood B. differed on this point, saying they ought to have been signed by some of the persons from whom the land owner derived title; that they would certainly not be admitted as against a rector vicar, unless signed by them or some of their predecessors ; || and that the signature of other parishioners could not make a terrier admissible to affect a farm modus.
Form of a Terrier.
“A true note and terrier of all the glebes, lands, meadows, gardens, orchards, houses, stocks, implements, tenements, portions of tithes, and
held inadmissible in evidence. (Leathes v. Hewitt, 4 Pri. R. 364.) See contra, Atkins v. Hatton, Gwm. 1406, where a copy from the parish registry was admitted, as the original could not be found. (2 Anstr. 386.) They are the highest evi. dence against those signing them, almost paramount to usage. (Per Richards C. B. Drake v. Smith, 5 Pri. R. 380, but not conclusive. Blundell v. Maudsley, 15 East, 641. Lake v. Skinner, 1 J. and W. Rep. 20.) Tithes of particular articles mentioned in them as payable, are generally payable in kind; and any statement therein of a mode of rendering the tithe is evidence of that fact, and is allowed to qualify the render, and in a great measure to define its legal cha
(Drake v. Smith, 1 Dan. R. 114. Halse v. Eyston, 4 Pri. R. 419.) * So ruled by the court of king's bench in Miller v. Foster, 1794, contrary to the opinion of Macdonald Ch. B. (1 Anstr. 387. Gwm. 1483.) See also Atkyns v. Hatton, ib.
+ Illingworth v. Leigh, Gwm. 1615.
| Mytton v. Hains, 3 Pri. R. 24. See Bul. N. P. 248. Drake v. Smith, 5 Pri. R. 380.
û 3 Pri. 24. Gwm. 1615, is contra ; but if signed in absence of the parson it gives it more weight as evidence in his favour. (Per Richards C. B. 5 Pri. R. 380.)
other rights, belonging to the vicarage and parish church of Orton, otherwise Overton, in the county of Westmoreland, and diocese of Carlisle, now in the use and possession of Richard Burn, clerk, vicar of the said church ; taken, made, and renewed according to the old evidences and knowledge of the ancient inhabitants, this tenth day of November, in the year of our Lord one thousand seven hundred and forty nine, by the appointment of the right reverend father in God Richard lord bishop of Carlisle, at his primary visitation held at Appleby in the said county, and diocese aforesaid, the eighth day of June in the same year, and exhibited before the reverend and worshipful John Waugh, doctor of laws, chancellor of the aforesaid diocese, on the twentieth day of November in the year
aforesaid. “ Imprimis. One stated dwelling-house, in length fifty-one feet, in breadth nineteen feet, within the walls. One thatched barn, stable, cow-house, and peat-house, contiguous to each other under the same roof; in length eighty-one feet, in breadth twenty-one feet, without the walls. One other little stable, in length thirteen feet, in breadth twelve feet and an half, adjoining to the peat-house at the south-west side and end. Item, The churchyard, containing three roods and nineteen perches, adjoining to the grounds of Robert Teasdale on the south, of Richard Alderson on the west and north, and to a close belonging to the said vicarage, called Prior Garth, on the east : the walls and gates thereof round about made by the parish. Item, One inclosure called Prior Garth, containing three roods and seven perches, adjoining to the church-lane on the south, to the churchyard on the west, to the ground of Richard Alderson on the north, and to the highway on the east; through which there lies a footpath from the vicarage-house to the church, but for no other purpose : the wall and hedge on the south, north, and east, made by the vicar; and on the west, where it adjoins to the churchyard, by the parish. Item, One garden, containing one rood and eleven perches, adjoining to the vicarage garth, and to the ends of the barn and of the dwelling house on the south, to the highway on the west and north, and to the said garth on the east: the fence round about made by the vicar. Item, One parrock, containing twentyfour perches and an half, adjoining to Orton Green on the south, to the highway on the west, to the end of the dwelling-house on the north, and to the vicarage garth on the east : the fence round about made by the vicar. Item, One garth, containing one acre fifteen perches and an half, adjoining to the grounds of John Powley, Daniel Teasdale, and Orton Green on the south, to the said parrock, barn, and garden on the west, to the peat-house end, garden, and highway on the north, and to a close belonging to the said vicarage, called Corn Close, on the east : the fence round about made by the vicar, except that John Powley makes the fence where it adjoins to his ground, and Daniel Teasdale from thence to the bottom of the old lime-kiln ; through which garth lies a footpath for the said John Powley and Daniel Teasdale to and from their said grounds, and likewise a driving way for their sheep, which they frequented whilst the common field was uninclosed, but is now become almost useless. Item, One inclosure, called Corn Close, containing one acre, one rood, and twenty-one perches, adjoining to the said John Powley's lane, and to a place of ground before his barn called
a flee-room, and to his garth, on the south, to the vicar's said garth on the west, to the highway on the north, and to the highway and John Powley's lane on the east : the fence all about made by the vicar, except. where it adjoins to John Powley's garth and barn. All which said corn, close, garth, garden, and parrock, have been inclosed ground for time immemorial, and the vicar in respect thereof hath not repaired any part of the highways adjoining thereunto. Opposite to the same, on the north side, is an inclosure made by Daniel Teasdale, about nine years ago, by which the highway was made into a lane. Item, One inclosure called Fore Dale, containing three acres and fifteen perches, adjoining to the grounds of Robert Teasdale and John Nelson on the south, of John Nelson on the west, of John Powley and Robert Teasdale on the north, and of Robert Teasdale on the east : all the fence made by the vicar, except where it adjoins to the said John Nelson's in-croft, and except half the length of the said John Nelson's out-croft, from the middle to the east end, the said John Nelson's fence being stone-wall; from the east end of which inclosure lies a way through Robert Teasdale's ground, which the present incumbent purchased of the said Robert Teasdale, to an inclosure belonging to the said vicar (but not to the vidurage,) called Long Roods, which is to continue for ever, and may be of use if at any time hereafter the said two inclosures (Fore Dale and Long Roods) shall be occupied by the same person, or otherwise. Item, One other inclosure, called the Greater Mil-brow, containing one acre, three roods, and seven perches, adjoining to the ground of John Powley on the south, to a tillage way enjoyed and repaired by the said vicar on the west, to the ground of Thomas Ireland on the north, and of John Powley on the east : all the fence made by the vicar, except about sixteen yards of stone-wall at the north-east end, belonging to John Powley. Item, One other inclosure, called Little Mil-brow, containing twentyeight perches, adjoining to the ground of John Powley on the south, of Isabel Atkinson on the west, of Isabel Atkinson and Thomas Ireland on the north, and the said tillage way on the east : the fence all made by the vicar ; through the south-west corner of which inclosure is the ancient watercourse. The said three last inclosures were made out of the common field by the present incumbent. Item, One other inclosure, called Glebe Close, lying at Firbiggins, containing eight acres and three roods, adjoining to the ground of Elizabeth Turner on the south, of Elizabeth Turner and William Thwaytes on the west, of William Thwaytes on the north, and to the common on the
east : the wall at the east end is made by the vicar, at the west end by Elizabeth Turner and William Thwaytes ; the right of repairing the fence on the north side and on the south side is in dispute, and not yet determined. At the end of Elizabeth Turner's house, an oak gate is to be maintained by the owners of Coat Garth, for which they enjoy a liberty of ingress and egress for themselves and families, and liberty of driving cattle in the winter, from Martinmas to Lady-day, doing as little damage as may be, and of passing with peats or other firing in summer. Belonging to the said glebe close, and occupied therewith, there is likewise a parcel of ground, leading from the said gate at Elizabeth Turner's house-end, north-eastward to the said glebe close, having the wall on the left end,
and meted out from Elizabeth Turner's ground on the right, in breadth three yards or upwards, being the way to and through the said glebe close. Item, Another parcel of ground, in the common field, called North Lands, containing two roods and five perches, adjoining to the ground of Robert Teasdale on the south, of John Nelson on the west and north, and of Robert Teasdale on the east. Item, Another parcel of ground in the common field, called Pot-lands Head, containing one rood, adjoining to the ground of Robert Teasdale on the south, of Elizabeth Waller on the west down by the runner, of John Nelson on the north, and of Robert Teasdale on the east. All which said lands, containing in the whole nineteen acres and upwards, are situate within the lordship and manor of Orton, free from the payment of any fines, rents, or services to any chief lord : the royalties of which said lands are also in the vicar. Item, a parcel of peat-moss in Orton low moor, containing by estimation ten acres, known by the name of the Vicar's Moss.
“Item, To the said vicarage is also belonging the tithe of wool throughout the parish ; and the manner of tithing is this, the owner lays his whole year's produce in five parcels or heaps, the vicar, or person employed by him, chooseth one of the five heaps, which he pleaseth, and divides the same into two parts, of which two parts the owner chooseth
and leaves the other to the vicar for his tenth part. Item, The tithe of lambs in their proper kind throughout the parish, and the custom concerning them is this, if a person's number is one, he pays a penny; if two, he pays two-pence; if three, he pays three-pence; if four, he pays four-pence; if five, he pays half a lamb; if six, a whole lamb, the vicar paying back four-pence; if seven, three-pence; if eight, two-pence; if nine one-penny; if ten, the vicar hath a lamb complete : and in like manner for every number above ten. And if a man's number is under fifty, the tithe is taken thus, the owner takes up two, then the vicar takes one; next the owner takes nine, then again the vicar one, and so on till the vicar hath taken the number due to him : if they are fifty or upwards, they are put into a place together, and run out singly through a hole or gap; the two first that come out are the owner's, the third the vicar's, then the owner hath the next nine, then the vicar one, and so on till the vicar hath his number. And if sheep are sold in the spring, the tithe of lambs is paid by the person with whom they were lambed, whether seller or buyer. Item, The tithe of geese, taken up about Michaelmas, in the same manner as the lambs; except that whereas a penny is paid on the account of each odd lamb, an halfpenny only is paid for each odd goose. Item, The tithe of pigs in like manner. Item, The tithe of eggs about Easter, two eggs for each old hen and duck, and one egg for each chicken and duck of the
Item. By every person who sows hemp is paid yearly one penny.
Item, For each plough is paid yearly one penny. Item, By every person keeping bees is paid yearly one penny. Item, An oblation of four-pence at every churching of women. Item, For every wedding, by publication of banns, one shilling ; by license, ten shillings. Item, For every funeral (without a sermon) six-pence. Item, Mortuaries, according to act of parliament. Item, For every person of age to communicate, three halfpence yearly, due at Easter. Item, A pension of