1813.

The WARDEN and MINOR

PAUL'S

V.

KETTLE.

reserved; and from 1595 to 1630, the Difference is merely two or three Pounds; probably resulting from the Ease or Difficulty of collecting the customary Payments. The Fines CANONS of ST. will not afford any Conclusion more favourable to the Plaintiffs; being from 1707 to 1742 precisely the same on every Lease; and the Quantity of each Term, unexpired at the Periods of Renewal, is not in a Proportion that can form the Foundation of any Argument. The greatest Fines are those of the most distant Dates; a Fact as little to be reconciled with the Notion of an increasing Value of the Tithes in Proportion to the depreciated Currency, as the Uniformity of the Rents. Upon that Hypothesis in 1630 the Fine ought to have been £600 instead of £200. This Variation may be thus accounted for. The Lessees, finding Difficulties in the Collection, which they had not foreseen, and sustaining Losses they had not calculated upon, would naturally on each successive Renewal stipulate for a reduced Fine.

The next Ground of Defence is the Suit in the Court of Exchequer, in 1661. It is true, the Award of the Attorney-General is not forthcoming; but the Fact that a new Lease was granted three Years afterwards at the old Rent is equivalent. The Question returns to this: whether the Defendants have shewn the Existence of Payments, substituted for those prescribed by the Statute and Decree; your Lordship having expressed a decided Opinion, that the statutory Payments never have in Fact existed; and the whole of these Transactions incontrovertibly prove, that 2s. 9d. in the Pound never prevailed as a Payment in this Parish; but that there always has been an ancient customary Payment in lieu of it.

Mr. Richards, Sir Samuel Romilly, and Mr. Wetherell, for the Plaintiffs in the original Cause.

This is merely a Re-hearing of the Cause of The War

den

1813.

The WARDEN and MINOR

KETTLE

den and Minor Canons of St. Paul's v. Morris. The Plaintiffs, in their Character of Rector, must recover the Payments according to the Statute, unless the Defendants can prove customary Payments in lieu of them. The Attempt CANONS of ST. to plead these alledged customary Payments, as a parochial PAUL'S Modus, which clearly they are not, fails altogether in Proof. If the Court would let the Defendants into Proof of a parochial Modus, the Leases furnish Evidence in Opposition to its Existence. The Argument, drawn from the Uniformity of the Leases, is erroneous. They vary in Rents and Fines; a Fact inconsistent with a settled customary Payment: nor have the Defendants shewn, that the Lessees invariably received the same customary Payments from the Parishioners. The Rates are not more favourable to the Defence; rather furnishing Evidence against the Existence of a Modus. In all Cases, where a Modus is set up, it should be stated with Clearness and Precision; though this is less material in an Answer, than a Bill (a). Not one of the Defendants mentions the Sum, which he considers as the Modus; all alledging, that they are unable to state any Modus: yet on an Allegation so vague an Issue is asked, for the Purpose of establishing as Moduses certain specific Sums never mentioned in the Pleadings. In some Respects the Defendants assimilate them to Farm-Moduses: but then they ought to state, not merely the precise Sums, but the specific Property covered; each setting up his own individual Modus, and specifying his Property covered by it. There is no Instance, where the Court has dispensed with a Defendant's setting out the specific Sum, which he alledges as a Modus. Had these Defendants, however, proved all they alledge, it is difficult to conceive, how the Warden and Minor Canons could be bound by Rates, made, not by them,

(a) See Scott v. Smith, ante, Vol. I. 145, and the References in the Notes. Wood

v. Wray, Gwill. 1457. Anstr.

838.

but

but by the Lessees, contracting for themselves. The Inference, drawn from the Decrease of the Fines in later Periods, proceeds on the Supposition, that this is a parochial Modus. Their Fluctuation proves no more, than that the Warden and Minor Canons, like most other Ecclesiastical Bodies, have been very negligent of their Interest. Your Lordship has (a) said, that the customary Payment, alluded to by the Act of Hen. 8. was not necessarily to be carried back to the Time of Richard the First: but it is not proved to have existed at any Time before the Act. If, as is alledged, the 2s. 9d. in the Pound was for a Time after the Fire of London not collected, the Reason probably was, that the Misery and Poverty, which followed that Calamity, induced the Warden and Minor Canons to forego for a Time the full Exaction of their Rights.

Mr. Leach, in Reply.

All, that has been decided by your Lordship and the House of Lords, is, that a new Trial should not be granted. The Statute of 37 Hen. 8. says (b), that there were certain Places or Districts paying less than 2s. 9d. in the Pound; not pointing to Individuals. These Occupiers say, the Parish of St. Gregory was one of those Places.

Is not this a Case, in which, to use your Lordship's Words, the Court would exercise its Right of deciding without an Issue " very tenderly and sparingly?" The Warden and Minor Canons appear to have renewed, at a Rent of £40: 6s: 8d. when, had they been entitled to the 2s. 9d. in the Pound, they might have demanded at least £800. They cannot be represented as having acquiesced in their Loss, or as inattentive to their Interests. These

(a) See 9 Ves. 165, and Bennett v. Trepuss, 2 Gwill.

633.

(b) c. 12. s. 18,

Suits

1813.

PAUL'S

Suits too strongly prove the Reverse. The Property co-
vered is described in a Manner perfectly intelligible to the The WARDEN
Plaintiffs; who know the Scite of each House; and can and MINOR
state, what stood on each Foundation fifty Years ago. If CANONS of ST.
the precise Amount of the customary Payments is not stated,
the Plaintiffs are referred to the Rate, which they admit to
be in their Possession; and that they are acquainted with its
Contents; a Mode of Pleading unquestionably sufficient to
put them in Possession of the Amount.

The Lord CHANCELLOR.

Under the two Statutes of Henry 8. and Charles 2 (a)
it is clear, that the Plaintiffs in the original Cause are enti-
tled to 2s. 9d. in the Pound, unless the Inhabitants can pro-
tect themselves under the 18th Clause of the Statute of
Henry 8, directing that, where less hath been accustomed
to be paid for Tithes, the Payment shall be " after such
"Rate as hath been accustomed." The Opinion of Lord
Chief Justice Eyre was, that this Statute was never in-
tended to give to individual Houses the Benefit of custom-
ary Payments, except as applying not only to individual
Houses, but generally to some Place; that it was rather a
parochial Payment than a Payment attached to individual
Houses. That Opinion appears to me to be well founded:
but it is impossible at this Day to act upon it: many Cases
having established, that an individual House may be pro-
tected, provided the Owner or Occupier can prove a cus-
tomary Payment in this Sense, that previously to this Act
of 1545 that Payment had been so long made as to have
acquired the Character of customary Payment with regard
to Tithe; and the Construction is not, that it must be a
Payment Time out of Mind, but, if that Payment has been
usually made during such Time as to have acquired in the
Ecclesiastical Courts the Character of a customary Pay-
ment, the Statute operates upon it.

(a) Stat. 37 Hen. 8. c. 12. 22 Ch. 2. c. 11.

v.

KETTLE.

That

1813.

The WARDEN

PAUL'S

0.

KETTLE.

That was decided in Williamson v. Gosling (a), a very leading Case; which proves that to be the Law at this and MINOR Day. Gosling was the Owner of four Tenements; three CANONS of ST. subject to customary Payments, the fourth not. He pulled them all down; and upon the Scite erected two new Tenements; and it was contended, that from the Change in the Nature of the Premises the customary Payments could not attach but the Court of Exchequer held, that the Payment was to be compounded of the Value of the three customary Payments, and the Tithe, at 2s. 9d. in the Pound for so much of the Premises as was erected upon the Scite of the fourth Tenement, to which no customary Payment had been applied.

There is no Doubt therefore, that, if these Individuals can prove, that before this Statute a Sum of Money was raised upon each House, and so long before as to have ac quired the Character of a customary Payment, to so many Houses as it can be applied to it is in Law applicable; though there is no such general Custom through the Place or Parish. I repeat what has been said in many late Cases; that, whatever may be the Probability that 2s. 9d. in the Pound never was paid in this Parish (and I do not retract the Belief I expressed in the Case of these Plaintiffs against Morris (b), that it never was paid), yet I cannot regard that Fact as more than negative Evidence, strong negative Evidence, if connected with material positive Evidence, that there must have been some other Payment due from the Parishioners: but, I apprehend, it is equally clear upon Grounds lately discussed, and clearly established, in the House of Lords, that in this Case of a Claim of this Payment, as in the Instance of a Claim of Tithes more strictly, it is not sufficient for the Defendant to say against the Claim under the Statute, as it would not be sufficient

(a) 3 Grill. 902.
(b) The Warden and Mi-

nor Canons of St. Paul's v. Morris, 9 Ves. 155.

against