The Countess Dowager of Dartmouth and Others, Executrix and Executors of George Earl of Dartmouth, against Roberts
| Jurisdiction | England & Wales |
| Judgment Date | 21 November 1812 |
| Date | 21 November 1812 |
| Court | Court of the King's Bench |
English Reports Citation: 104 E.R. 1116
IN THE COURT OF KING'S BENCH
the countess dowager of dartmouth and others, Executrix and Executors of George Earl of Dartmouth, against egberts. Saturday, Nov. 21st, 1812. In an action on 2 & 3 Ed. 6, by the plaintiff, as owner of tithe-hay, against the defendant, as occupier of a close, for not setting out the tithe, copies of a bill and answer, in a suit by the vicar for tithe-hay against S. L., then occupier of the close, and from whom defendant purchased, denying the vicar's right, and setting up a right in the ancestor of plaintiff, on which the vicar abandoned the suit, were , holden evidence against the defendant. In favour of uninterrupted enjoyment by the perception of tithe-hay by plaintiff and his ancestors, although an endowment of the vicarage in 1253 with the said tithe be shewn, it shall be presumed that the tithe came into lay-lands before the restraining statutes. This was an action of debt upon the stat. 2 & 3 Ed. 6, c. 13, for not setting out tithes, in which the declaration stated that George Earl of Dartmouth, the testator, on the 1st of July 1810 until the 3d of October 1811, was owner and proprietor of the tithes of hay arising from a parcel of land called the Four-Days-Work-Close, in the parish of Batley, in the county of York, of which parcel of land the defendant was, during all that time, the occupier; that the tithes of hay growing on the said land within 40 years next before the statute were of right yielded and payable and yielded and paid to the owner, proprietor, or farmer of those tithes for the time being; that the defendant on the 1st of August 1810, [335] mowed the grass growing on the said land, and made it, into hay, the tithes of which hay belonged to the said George Earl of Dartmouth, as owner and proprietor of the same, and ought to have been set out and paid to him : yet the defendant took and carried away all the said hay, without setting out the tenth part, &c. At the trial before Thomson, B., at York, the plaintiffs made title to the tithes in question under the Marquis of Halifax, to whom the same had been conveyed by an indenture of the 21st of October 1676, and they produced copies of a bill and answer in a certain cause after mentioned; and also gave parol evidence of the receipt of the tithes, or payments in lieu thereof, as far back as living memory could trace. The defendant gave counter evidence of title, the tendency of which was to shew that the right to the tithes was in the vicar of Batley, under an endowment of the vicarage with the tithes of hay of the whole parish, in 1253, by Walter Gray, Archbishop of York, in the 37th year of his pontificate; and that the same appeared to have remained annexed to the vicarage after the dissolution of the monastery of St. Oswald de Rostell by an ecclesiastical survey in the 26 H. 8 (1535), and by ministers' accounts in the 33 & 34 H. 8. The parish of Batley consisted of three townships, Batley, Morley, and Churwell; and there were three terriers proved by the defendant of the dates of 1727, 1743, and 1748, each entitled, " A True and...
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