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
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
said Decree in the Exchequer The Lords certify the Justice and Equity of the said Custom After which Certificate by special Order and Direction from the said King James I by an Order of Councel of the 5th of October 1621 it was Ordered The Cause honourably dismissed from the Councel-Table with a Declaration of the Miners false pretence That the Complainant and all such others as were interessed or had any Right or Title in and to the Tyth or Tenth of Lead Oar together with the whole Cause then depending before them should be clearly discharged and dismissed from the said Council-Board and should be left to the full Fruition and Benefit of the Law And because the said Complainant and the Rest had had loss by being stayed at the Board upon Pretence from the Miners of some Point of State which then appeared to be otherwise Therefore their Lordships in an Honourable respect of the Complainant and the Rest did wish that they might have all the Speed and Expedition which the Law in Justice might afford them After which Dismission from the Council-Board in Michaelmas Term next following The Complainants Bill in Chancery being the 19th Year of King James I the said Carrier exhibited his Bill in Chancery against these Defendants viz. Robert Maddox Thomas Taylor Thomas Fogg Francis Bayley Thomas Godbehere And others Miners within the said Parish naming them in all to be 300 or thereabouts The said 5 Persons appeared in the said Michaelmas-Term and took out a Dedimus to answer in the Country returnable in Hillary Term following The Complainant being thus delayed by a Dedimus Delays by the Miners petitioned the Lord Keeper for an Injunction which by an Order of Court of 4th of December 19 of King James I was granted against all the Miners in that Parish requiring them to pay this Tyth as formerly it used to be until they answered And after their Answer given in Hillary-Term 19 James I wherein they averred themselves to be more in Number than 300 in Easter-Term the Miners prayed That the Injunction might be changed into a Sequestration The Complainant was ordered to show cause in Trinity-Term why it should not so be The Matter was then heard and long debated 3d. July 20 Jacobi Reg. prim and then Ordered that the Defendants and all the Rest should pay the said Tyth and that the Injunction should continue in force till hearing and the Complainant also under an Injunction to stay Suits for this in all other Courts After all which and after Bill Answer Replication and Rejoynder Commissions to take Evidence and Publication of the same together with the Petition and Debates about the Injunction aforesaid all upon record in Chancery Court The Cause now being ready to be heard in Michaelmas-Term 20th of King James I. The Miners at last suffer a Decree against them to pass by Consent The then Defendents finding the Proofs to be full against them desired the Complainant to take a Decree by consent against them and all the rest of the Miners in that Parish to pay the said Tyth to the Complainant and his Successors for ever This Decree by consent was accordingly passed that Michaelmas-Term subscribed by the then Ld. Keeper Unto which Decree The Miners Submit to the Decree for some Years as well the then Defendants as also all others the Miners within the said Parish of Wirksworth did submit and did by the space of five Years or thereabouts then next following pay the said Tyth or Tenth part of Lead-Oar unto the said Complainant And likewise since the foresaid Dismission from the Council-Table Other Decrees for other Proprietors the said John Gell had by due Course and Proceedings obtained a Decree in this Honourable Court of Chancery against all the Miners within the Parishes of Bakewell Tiddeswall and Hope whereby they were all bound to pay the said 3d. part of the Tyth or Tenth of all Lead gotten or to be gotten within the said Parishes unto him the said John Gell and his Heirs for ever Which Decree was ratified and confirmed to stand in force against them all by an Order of Chancery of 27 Maii 3tio Carol. prim And the said Mr. Gell was accordingly possessed of the said 3d. part of the said Tyth of Lead-Oar within the said Parishes And the Miners ever since the said Decree was confirmed by the Order aforesaid had submitted themselves and duly paid the said Tyths of Lead-Oar to the said Mr. Gell his Servants or Deputies And the said Miners within the said County of Derby not yet satisfied with all the said Proceedings at Law Miners bring a Bill in Parliament against this Tyth and at the Council-Table and in this Honourable Court did exhibit their Bill against this Complainant and the Rest interessed in the said Tyth or Tenth of Lead Oar for their Relief into the High Court of Parliament holden at Westminster 19th February 21 Jacobi Prim. wherein they did desire that it might be Enacted That no Tyth or Tenth of Lead Oar might be paid in any place whatsoever within the said County of Derby which Bill was twice read and Committed and Reported The Miners Bill in Parliament against this Tyth rejected and then upon Debate amongst the Commons assembled in Parliament it was upon Wednesday the 12th of May 22 Jacobi Regis Prim. Rejected and cast out Yet notwithstanding all this in Easter-Term 3tio Caroli Regis Prim. Miners promote new Suits and question the former Decree Some of the Miners within Wirksworth by sinister Incouragement of some others ill-affected to the Complainant did question whether the former Decree as it was passed and drawn up ought to oblige all the Miners in that Parish or only the then named Defendants This question Referred to the Attorney General which Question was by Order of Chancery 4to Maii Anno 3tio Carol. Prim. referred to Sir Robert Heath Attorney General to examine and certifie concerning it who upon full Examination and divers Hearings of the Matter in Presence of Council learned on both sides and upon Perusal of the said Bill and Answer Proofs c. made 10th July 4to Carol. Regis his Certificate to this Effect viz. 1st Attorney General his Certificate That the Complainant had prayed Process only against the then named Defendants yet complaining therein against all the Miners within that Parish naming them to be 300 or thereabouts though the Defendants in their Answer did affirm and set forth that they were more 2. He found that before the said Answer was made it being delayed by a Dedimus an Injunction was awarded by the Ld. Keeper against all the Miners in that Parish requiring them to pay this Tyth which Injunction was upon debate ratified and confirmed to stand in force till the Cause was heard 3d. He did find a general Solliciting in the Suit and a general Contribution of the Miners of the said Parish against the Complainant to maintain that Suit 4th He found that for a time the