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A24054
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An abstract or abridgment, of a decree made, and often confirmed in the High Court of Chancery, concerning the payment of a tyth or 10th. part of lead-oar [sic] in the county of Derby
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1705
(1705)
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Wing A147A; ESTC T114275
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13,426
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24
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Decree might be made in the Cause to conclude all the Miners within the said Parish of Wirksworth according to the Direction of this Court formerly made in that behalf and the Quiet Possession established and continued with the said Complainant and his Successors and in regard the Tyth of Lead-Oar was two thirds of the whole Profits of that Vicarage there being neither Glebe nor Tyth-Corn nor Tyth-Hay belonging to it and so the said Church would be disinherited and the Complainant impoverished if not timely prevented Therefore he prayed process of Subpoena against the said 4 Defendants which being granted and they served therewith and after Bill Answer Replication Commissions to examine Witnesses and Publication and all other Proceedings on â—â—ord in Chancery had and made A Day was appointed for Hearing at which the Defendants being not ready or prepared as their Council pretended to go to hearing Delay of Hearing by the Miners a further Day was appointed for hearing the said Cause On which Day it then appeared that a Decree had been taken by Consent as aforesaid against the 5 former Defendants viz. Maddock Taylor Fogg Bayley and Godbehere for Payment of this Tyth to the Complainant by them and the rest of the Miners in that Parish notwithstanding which the rest not named Parties then had refused to be bound by that Decree whereupon a new Bill was ordered and 4 new Defendants named as abovesaid by whose Success the Rest should now be concluded which Cause came now to be heard And upon the full hearing and long debate of the matter before the Right Honourable the Lord Reeper in presence of Councel learned on both sides It appeared that the constant and general Custom within the said Parish for the space of 50 Years and upwards had been to pay the said Tyth or 10th Dish of Lead-Oar dressed and cleansed from the Earth and Rubbish Tyth not taken of the Lot-Dishes which are the Kings part saving that the Lot Tishes had not been reck'ned or accounted as part of that out of which the said Tyth or Tenth should be paid And the Complainants Councel offered to read Depositions of old Witnesses taken in the former Cause now dead to prove this Custom in the said Parish for fourscore Years It appeared also by a Copy of a Record in the First Fruits Office that the Vicarage of Wirksworth being valued at above 40 l. per Annum in the Kings-Books 30 l. thereof was only for the said Tyths of Lead-Oar But the onely Question was concerning the Recompence which the Plaintiff and his Predecessors had used to allow to the Miners for cleansing and washing the said Tenth Dish Debates about the recompence for Washing the Tenth dish Where it was proved by the Plaintisss Witnesses the constant course and usage had been to allow onely a Penny for washing and cleansing the said Tenth Dish On the other side it was proved that some of the Plaintiffs Predecessors had allowed sometimes to the Miners when their Work fell in hard and rocky Ground and in places much annoyed with Water a greater proportion viz. sometimes Four Pence the Dish and it was alledged on the Defendants part that the cleansing of a Dish was worth Eight Pence And therefore it was against Reason to inforce the poor Miners to do it for a Penny Nevertheless His Lordship was well satisfied notwithstanding any thing objected by the said Defendants Councel to the contrary that the said Complainant ought to be paid his Tyth of Lead-Oar And that the most constant Custom had been to allow but a Penny for cleansing it And that the said Miners of the Parish of Wirksworth ought to be in the same state and coudition as other the Miners in the High-Peak were The Miners in the Wapontake of Wirksworth ought to be in the same condition with those in the High-peak against whom a Decree had been made in this Court and Tryals at Law upon the Point of Custom for payment of Tythes or Tenth of Lead-Oar as aforesaid Nevertheless His Lordship considering that the Alteration of times might beget great Inequality and Disproportion in the said Payment for although in ancient times the foresaid rate of a Penny might be a competent Recompence for the labour of washing the said 10th Dish yet in these times it may be otherwise And considering that whatever the Plaintiffs right in that behalf is in Law according to the strict Custom yet he could not expect that A Court of Equity should Decree the said Custom in such a point as may tend to the undoing of the poor Miners Therefore His Lordship thought sit without prejudice to the Plaintiffs Right or to the aforesaid Custom if at any time he shall think good to make use thereof at Law to take such a middle Course whereby the Plaintiff without Multiplicity of Suits might have his Tyth by Order of this Court and yet the poor Miners not be too much pinched by the Rigor or Strictness of the said Custom It is therefore this present Day that is to say on Saturday the 4th day of July Anno 5to Regni Caroli Regis c. primi By the Right Honourable Thomas Lord Coventry Lord Keeper of the Great Seal of England and by the Authority of the said High Court of Chancery The Tyth of Lead-Oar Decreed Ordered Adjudged and Decreed that the said Defendants and all other the Miners within the said Parish for the time being and for the Time to come shall pay to the said Complainant and to his Successors Vicars of Wirksworth for ever The Tyth or 10th Dish of All Lead-Oar gotten or to be gotten within the said Parish dressed and cleansed from the Earth and Rubbish at the Charge and Labour of the Miners A Commission about the Equity of the Recompence for washing the Tyth but without prejudice of the general Custom And as touching the Allowance to be made by the Complainant and his Successors for washing dressing and cleansing every 10th Dish albeit his Lordship doth not intend to alter or controul the ancient Custom in that behalf yet in regard it tendeth to settle peace and quietness hereafter and for other Reasons before expressed and because the Councel on both sides could not agree about it Therefore his Lordship for his fuller Satisfaction therein and that a moderate Consideration may be had thereof if the matter so require but without prejudice of the General Custom formerly held and used in that behalf thinketh fit and doth order that a Commission be awarded to Sir Henry Willoughby Knt. and Barronet Sir Henry Lee Sir Henry Agard and John Bullock Esq or any 3 or 2 of them to consider and examine whether a Penny a Dish be a sufficient Recompence for washing and cleansing every 10th Dish one with another giving them power to view all sorts of Oar and to examine Witnesses about this Matter if need be And upon return of the said Commission and Certificate from his Lordship will give further Order
AN Abstract or Abridgment OF A Decree Made and often Confirmed in the High Court of Chancery concerning the Payment of a Tyth or 10th Part of Lead-Oar in the County of Derby CAROLUS Secundus Dei Gratiâ Angliae Scotiae Franciae Hiberniae Rex Fidei Defensor c. Georgio Savile Willielmo Savile Jacobo Hopkinson Rogero Newton Alveredo Motteram Generosis ac cuicunque Personae sive quibuscunque aliis Personis quos Decretum vel finale Judicium aliqualiter tangit sive concernit corum Cuilibet salutem Cum quoddam finale Judicium sive Decretum coram Nobis in Curiâ nostrâ Cancellariae antehac fact extitit in haec Verba WHEN before this Time that is to say in the Term of St. Michael Anno Dom. 1628 Richard Carrier Clerk Vicar of Wirksworth in the County of Derby Complainant Exhibited his Bill of Complaint into the High and Honourable Court of Chancery against Ephraim Fern Richard Wigley Anthony Coates and William Debanks Defendants declaring by the same That whereas the Complainant and all his Predecessors Vicars of Wirksworth Time beyond the Memory of Man have had and received and used to have and receive and do of right ought to have and receive a certain Customary Duty of all the Lead-Oar or Lead-Mine which had been gotten within the said Parish of Wirksworth dressed and cleansed from the Earth and Rubbish at and by the only Costs and Labours of the Miners and Getters of the said Oar and Lead-Mine the said Complainant and his Predecessors allowing to the said Miners and Getters of the said Oar and Lead-Mine only one Penny for the dressing cleansing and washing every the said 10th Dish without Interruption of any Man until about the 18th Year of the Reign of K. James I. At which time the said Complainant exhibited his English Bill into the Court of Exchequer Chamber The first Suit in the Exchequer Court against divers Miners who refused to pay this Duty The Miners being served with Subpoena's from that Court appeared in Michaelmns Term 180 Jacobi but gave no Answer The Miners upon their Petition to the Privy Councel obtained an Order Removed together with the Suits of other Proprietors to the Privy Councel dated 22d of November Anno 180 Jacobi Primi to stay the Suit in the Exchequer Court and to bring it before the Councel where also the Proceedings at Law of John Gell Esq afterwards Sir John Gell Barr. for one third part of the Tyth-Oar and of Sir Francis Leak then Knight afterward Lord Deincourt for the other two parts of the Tyth-Oar in the Parishes of Bakewell Tiddeswall and Hope in the hundred of High Peak in Darbyshire were then and for divers Years before had been stayed And the whole Cause concerning the Tyth or Tenth of Lead-Oar within the said County of Darby The Cause of Tyth-Oar for the whole County before the Councel was then stayed at the Councel Board upon Auggession by the Miners of some Point of State So that divers Ministers Parsons and Vicars within the said County who had a great Part of their Maintenance out of the said Tenth of Lead-Oar were forced to forbear all Proceedings at the Law for the same and to be content to live without the same during the time that the Matter was in question at the said Councel Board And thereupon The Custom of the Payment of the said Tyth or Tenth of Lead Oar The Custom for this Tyth one and the same throughout the County being claimed to be all one and the same in all Partishes within the said County of Darby where the said Lead-Oar is gotten Their Lordships for the avoiding Multiplicity of Suits which otherwise would have ensued The Councels Directions for Tryal of the general Custom for the Final settling of this Cause thought sit for the whole County as well concerning the Parsons and Vicars as other Proprietors of the said Tyth and Customary Duty of Lead-Oar to refer the said Custom to a Tryal at Common Law which accordingly was done by an Order of that Court of 26th of November Anno Domini 1619 with special Directions how and in what manner the said Trial should be brought on and tryed and that onely the said Custom should be given in Evidence and both Parties to insist thereupon This Tryal was had at the Common-Pleas-Bar in Easter-Term 1620 where the Custom was onely in Issue A Verdict for the general Custom and both Parties onely insisted thereupon and after 4 Hours Evidence before the Judges in the hearing the said Cause A Verdict passed for the said Custom and with the Plaintiff in that Cause After which said Tryal The Miners litigiously desire a second Tryal the Miners not yet satisfied but endeavouring to weary out the said Complainant and the rest interessed in the said Duty upon Pretence of having some old Witnesses not before examined obtained from the Lords of the Councel an Order of the 21st of June Anno Dom. 1620 for another Tryal at Common Law under particular Directions as before which Tryal was had at the Common-Pleas-Bar in Michaelmas-Term Anno Dom. 1620. upon the very point of the said Custom And there also upon full and long Evidence A second Verdict for general Custom a second Verdict passed for the said Custom and with the said Plaintiff in that Suit viz. Mr. John Gell. Notwithstanding which Verdict The Proprietors Petition the King the said Complainant Carrier together with the said Mr. Gell and the Lord Deincourt and the other Ministers interessed in the said Customary Duty of the Tyth or Tenth of Lead-Oar within the said County of Derby in respect they could not quietly enjoy the same according to the said Verdicts were forced for their Relief against the said Miners being a Multitude and making a general Purse thereby to weary out the said Complainant and others interessed to petition His Majesty King James I. for to establish them in the said Tyth or 10th of Lead-Oar as aforesaid The King refers the Consideration of this to the Arch-Bishop of Canterbury The King refers it to some Lords and to the Lord High Treasurer afterwards Lord Privy Seal with special Directions that upon due Examination of the Cause they should take Effectual Order for the Petitioners Relief and to certifie what course might be taken to put them in Possession According to which Reference their Lordships having heard the said Cause at large debated thereof did in July 1621 Certifie unto His Majesty that they had seen the former Proceedings before the Councel and at Common Law by Directions from the Lords of the Councel that Mr. Gell aforesaid had prevailed at Law for his 3d part of this Tyth and the Lord Deincourt had obtained a Decree in the Exchequer for the other two 3d parts of this Tyth in the Parishes of Bakewell Tiddeswall and Hope So as it appeared unto them Iust and fit that the said Tyths or Tenth should be established according to the said Tryals at Law and the