The Times 1811 - 1820 Westmorland Assizes /Tithe Cause/September 4, 1819

Westmorland Assizes /Tithe Cause/September 4, 1819

WESTMORLAND ASSIZES APPLEBY, Tuesday, August 31. ROBINSON V. WILLIAMSON, (CLERK) - A TITHE CAUSE. (before MR. BARON WOOD, and a Special Jury) MR. PARK stated this to be an issue directed by the Court of Exchequer, to try whether a 'modus' for hay and grass existed for the township of Winton, in the parish of Kirkby-Stephen. Mr. Sergeant HULLOCK opened the case to the Jury.  The rectory of Kirkby-Stephen formerly belonged to the barony of Kendal, afterwards to the monastery of St. Mary, York.  It was in HENRY VIIIth's reign vested in the Crown.  It was afterwards appropriated.  The question here related to the vicarage tithes. The defendant became vicar in 1807;  he did not live in Kirkby-Stephen;  he lived at a distance, and came to Kirkby-Stephen only to take as much care of his own interests as possible.  The township of Winton, which was one of eleven townships in the parish, considered that a 'modus' of 15s. had been established for time immemorial in respect of all grass in the township. The defendant said, it was only a 'modus' of the tithe of hay, and that he was further entitled to the tithe of agistment.  He should prove for the plaintiff, that the 15s. was in lieu of all tithes for grass.  It could not, on the other hand, be contended, that an agistment had ever been claimed.  This was a material consideration, for vicars were found to be as much on the alert in asserting their rights as any men.  He meant no reflection, but merely to show the presumption arising hence for the plaintiff.  The clergy were never backward;  they were not abstemious in asserting their rights where they had any claims. THOMAS MORLAND, (examined by MR. COURTENAY), 66 years of age, was born at Lineham in Winton, and succeeded his father in that farm, which he occupied for 43 years. The farm paid 5-1/2d. for hay and grass.  It was not paid separately to the vicar.  The whole township paid 15s. A discussion here arose as to the admissibility of reputation as evidence, and his Lordship was of opinion, that it was constantly received as a corroboration of a fact independently proved, but that in this case it must be proved that the 15s. were paid for the township before the reputation of the ' quo intuitu ' could be received.  Cross-examined. - Rokeby-garth and Court-garth were in the township of Winton. CHARLES BAINBRIDGE collected the 15s. from the township, as a ' modus ' to cover hay and grass, and paid it to MR. TEBY, the curate;  and he heard old people, now dead, say, that it covered grass and hay, whether mown or eat.  He was employed to collect it by MR. MONKHOUSE, the principal occupier of land in the township. Cross-examined. - He never paid any part of this sum, because his landlord paid it for him.  Did you never swear that you always paid your proportion to the vicar ?  I have no recollection;  but I did pay my proportion, if I had none to pay. JOHN FRANKLAND was called into the box, and admitted at once that he had entered into a bond to bear his proportion of the expenses of this suit, but (it appeared that MR. BLEMYRE, attorney for the plaintiff, and MR. SISSON, attorney for the defendant, had agreed to dispense with the production of releases and surrenders where the production of these would qualify witnesses otherwise unqualified;  and MR. BLEMYRE having stated of his own knowledge that the bond contained a provision for releasing all who ceased to be occupiers, as the witness had done for 6 years, the testimony was admitted), he ceased to occupy lands in the township 6 years ago.  He had known the place for 40 years.  The 15s. covered all grass.  He knew that farms entirely pastured paid a proportion of it.  His father, who died 26 years ago, at the age of 86, told him that the 15s. were for hay and grass of every kind. Cross-examined. - He did not know what he had done with a bill he had of the proportions of each farm. WILLIAM HALL, aged 85, gave similar evidence. Three other witnesses were called, but rejected, because they still held lands in the townships. THOMAS MORLAND was recalled, and allowed now to give his testimony as to the reputation. All the witnesses admitted on their cross-examination that they never heard the word agistment till this suit commenced. MR. SCARLETT (with whom were MESSRS. LITTLEDALE and WILLIAMS) addressed the Jury for the defendant.  His learned friend had thought proper to make some remarks on the attention of the clergy to their rights.  He believed it was more consistent with experience, that persons in the defendant's situation more frequently suffered their rights to be encroached upon than lay-rectors, because they, having only a life interest, did not think it worth their while to waste their substance in litigation. But the Jury would suffer no vulgar prejudice to influence their minds.  He would now prove to them, that this was a bad ' modus ', both for hay and for agistment.  As to agistment, although it had never been claimed or paid, it was not therefore prescribed.  A common law it could always be claimed, unless lands were exempted by law, or a ' modus ' had been agreed upon.  They had a good deal of loose evidence respecting reputation in this case.  A most learned, most ilustrious, and most lamented Judge, the late LORD ELLENBOROUGH, had said, "Reputation is in general weak evidence, and when it is admitted, it is the duty of the Judge to point out its weakness, that the Jury may not allow it too much weight." The intelligence and learning of this Judge, lamented universally by the profession of law, breathed and lived in the Judge who now presided, and who would caution them in like manner.  The evidence which he would lay before them was... 1.  That more than one farm in the township paid tithe for hay beyond the 15s.;  and that it was not consequently a township ' modus ' even for hay. 2.  That it was only a ' modus ' for hay.  Upon proving these points he would be entitled to their verdict.  He was not instructed at present to contend that there might not be a ' modus ' to cover particular farms for hay only;  but township ' modus ' it was not, and it covered no agistment. Three other witnesses were called, but rejected, because they still held lands in the townships. THOMAS MORLAND was recalled, and allowed now to give his testimony as to the reputation. All the witnesses admitted on their cross-examination that they never heard the word agistment till this suit commenced. MR. SCARLETT (with whom were MESSRS. LITTLEDALE and WILLIAMS) addressed the Jury for the defendant.  His learned friend had thought proper to make some remarks on the attention of the clergy to their rights.  He believed it was more consistent with experience, that persons in the defendant's situation more frequently suffered their rights to be encroached upon than lay-rectors, because they, having only a life interest, did not think it worth their while to waste their substance in litigation. But the Jury would suffer no vulgar prejudice to influence their minds.  He would now prove to them, that this was a bad ' modus ', both for hay and for agistment.  As to agistment, although it had never been claimed or paid, it was not therefore prescribed.  A common law it could always be claimed, unless lands were exempted by law, or a ' modus ' had been agreed upon.  They had a good deal of loose evidence respecting reputation in this case.  A most learned, most ilustrious, and most lamented Judge, the late LORD ELLENBOROUGH, had said, "Reputation is in general weak evidence, and when it is admitted, it is the duty of the Judge to point out its weakness, that the Jury may not allow it too much weight." The intelligence and learning of this Judge, lamented universally by the profession of law, breathed and lived in the Judge who now presided, and who would caution them in like manner.  The evidence which he would lay before them was... 1.  That more than one farm in the township paid tithe for hay beyond the 15s.;  and that it was not consequently a township ' modus ' even for hay. 2.  That it was only a ' modus ' for hay.  Upon proving these points he would be entitled to their verdict.  He was not instructed at present to contend that there might not be a ' modus ' to cover particular farms for hay only;  but township ' modus ' it was not, and it covered no agistment. THOMAS CLEASBY, aged 47, rented the small tithes from MR. WILLIAMSON, the defendant. Mr. Sergeant HULLOCK contended that this witness could not be received, unless he released all the occupiers of the township. MR. SCARLETT submitted that he was a good witness upon releasing MR. WILLIAMSON, since there was no written lease;  and that release had been agreed to be dispensed with if the production of it were all that was necessary. MR. Baron WOOD said, that although the agreement was parole only, the witness could file a bill in equity, to recover such small tithes as this action might give the defendant, and although it would be necessary to make the defendant a party, the release to the defendant would be no bar to a suit in equity.  He was therefore disqualified, as being interested. HIS LORDSHIP, however, at MR. SCARLETT's desire, made a note of it.  The following documents were then put in evidence, there being admissions for receiving them, without the several officers who should produce them: ....... 1.  An ecclesiastical survey of 26 HENRY VIII., in which the hay, flax, and hemp, were estimated at 40s 10d. (This was intended to prove that there could be no ' modus ' even for hay, far less an agistment, when flax and hemp were thus classed with it, and all tithed at 40s. 10d.). 2.  A bill and answer in Chancery in the year 1714.  The vicar had filed the bill against the township of Hartley for tithes generally;  but NICHOLSON in the answer stated, that he paid a ' modus ' or prescription for hay in respect to 6 acres he occupied in the township of Winton, Rokeby-garth, &c.  THOMSON and FAWCET in their deposition stated, that they paid the former 2s 8d. for Court-garth, and the latter a montly tithe for depasturing sheep. (The object of these documents was, that 15s. would not be a township ' modus ', and that monthly payments were made for depasturing shorn sheep, the meaning of agistment being the tithe paid for depasturing untithable animals.) 3.  Two papers from MISS CHATER, daughter of DR. CHATER, late Vicar of Kirkby-Stephen, which professed to be "Accounts of the improvement hay-tithes, with the name of the places which paid them, for the years 1768 and 1769".  Court-garth, Rokeby-Scarff, and Winton-hall were there entered, and the sums 2s 4d., 8d., and 10d., subjoined as paid for them respectively.  An old black manuscript was also put in, which had been among DR. CHATER's books, and which had one side entitled, "Prescription tithe," and the other, "Improvement tithe."  It was found to have 1736 and 1763, as extreme dates. 4.  A tarrier by the principal inhabitants and the vicar, in 1749, which expressly states the prescription paid to the vicar, for hay-tithe for Winton, to be 15s. Mr. Sergeant HULLOCK replied.  He had sufficiently qualified his remarks upon the clergy.  The defendant, living at a distance, could not feel the most powerful dissuasives from litigation with his parishioners;  and as to life interest, the defendant happened to be vested in fee in the advowson.  If the ' modus ' were only for hay, why, he would repeat, had no predecessor of MR. WILLIAMSON's claimed agistment ?  The 2s 8d. and 10d. and 8d. might, for ought that appeared, be parts of the 15s.  As to DR. CHATER's books and papers, even they bore testimony that it was a township ' modus ', for one of the papers was headed "Respective township tithes".  Surely DR. CHATER knew the township as well as MR. SCARLETT.  The only evidence was, that in DR. CHATER's papers the ' modus ' was called prescription hay-tithes.  This would not have been evidence for DR. CHATER; but he was dead, and MR. WILLIAMSON avails himself of his death to forward this kind of evidence.  Improvement hay-tithe was also stated from the same documents, but there was no evidence of any one payment of such a tithe.  As to the tarrier, it was at best but a very moderate species of evidence;  and if it represented this township ' modus ' (for so it called it) as only for hay, what had the vicars been doing since 1749 ? Mr. Baron WOOD, in summing up, said, that he thought reputation considerable evidence when grounded on a fact, and knew very well that it was always received in the Court of Exchequer, in order to show the immemorial (that was the legal language since RICHARD I), usage of an established fact. Agistment was the tithe for depasturing unprofitable, or untithable cattle;  it was not commonly paid in the north of England;  but it never could be paid for sheep. He doubted very much whether tithes could be claimed for improvements from waste lands when there was a ' modus ' They would decide in this case, as in all others, without regarding any other consideration but the evidence. Verdict for the plaintiff, finding the ' modus ' to cover the pasture. ================================================ ORTON V. WILLIAMSON (CLERK). This was a precisely similar case respecting the township of Netby, and had a similar verdict, with this difference, that one particular part of the township was excepted. Wharton-de-Mesne, in the township of Netby, forms part of Wharton-park, the property of LORD LONSDALE;  the other part is in the township of Wharton.  The two townships are divided by the Eden.  About 12 years ago, an entire exemption from small tithes was claimed for Wharton-de-Mesne.  The tarrier put in evidence in the former cause excepted Wharton from vicarial tithes.  The claim of exemption failed, and 3 years since an agreement was entered into to pay 91 l. in lieu of all tithes.  Hay-tithe and agistment were calculated in the valuation. Hence Wharton-de-Mesne was now excepted from the ' modus ' of 3s. 6-1/2d. found to be payable in lieu of hay and pasture tithes for the township of Netby. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

 

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