brown case William Kelynack and other appellant William GWAVAS respondent that  February tithe of fish be Payable only by custom and can be claim as a mere  personal tithe downward pull expenditure for where tithe in kind be due only  by custom it seem impracticable to deduct the expense bunb the respondent be  owner of the rectory impropriate of the parish of Paul which be a ancient  rectory adjoin to the sea and extend into Mount bay and have time immemorial  be a fish town and within the say rectory and parish there be and time out of  mind have be use and approve the follow custom of tithing fish videlicet that  every parishioner of the say parish and other be proprietor or occupier of any  fish boat net or other fish craft usual tie more or keep within any part of  the say rectory or parish when not actual use in fish brown er p ing have pay  and ought to pay to the owner or proprietor of the say rectory for the time be  the ten part of all great and small fish take in the say bay or other adjoin  sea or sea with such boat net or fish craft except only such fish as have be  use for bear to catch other fish and also fish meased or catch by the head in  the sleeve of certain net call saynes these saynes be very long and deep net  of a close or narrow mess and be use in this manner videlicet in bright day  person call hewer be place on adjacent hill to discover the shoal of fish give  sign to the sayners or person attend the saynes whereabout the shoal of fish  be and then the sayners draw out their saynes and encompass the fish and draw  towards the shore and by degree the whole shoal be by the sleeve guide into  the cod of the say and there take without be hang by the head but sometime it  happen that some of the fish be distaste strike against the sleeve and there  be hang by the head but be few and ancient think not fit to be use be give to  the poor fisherman for their trouble in take they out and the owner of the  craft have no part thereof and therefore no tithe be pay or demand for the  same drive net be ancient small net about ten fathom long and when the  fisherman go out to take hook fish they usual hang at the stern of their boat  a drive net against which as the boat cross the sea or current the pilchard  strike and be catch by the head and thence take as occasion require to bait  their hook and if any remain when the fisherman come on shore they send they  home to preserve for bait for the winter season the respondent father William  Gwavas Esq decease become owner from his ancestor of this rectory in about  which time drive or drift net begin to be use to catch pilchard or herring for  merchandise it be observe that brown though meased or hang by the head they be  fit to be cure and this use of drift net increase which also spoil the saining  trade as it break or disperse the shoal of fish before it come near the shore  and the fisherman refuse to pay the tithe of the fish so take because they be  hang by the head as be those take in the sleeve of saynes of which no tithe be  pay thereupon the respondent father bring his bill in the court of exchequer  against several of the fisherman for such tithe charge the custom to be as  aforesaid and in the fisherman answer to this bill they admit the then  plaintiff title to the tithe in kind of hook fish and to a customary payment  for pilchard catch in saynes other than what meased or hang by the head  videlicet the ten part of what they sell for fresh at the price which the  owner of the craft pay the fisherman for their part be one half and insist  that no tithe be Payable for pilchard catch in drive net the say cause be hear  many witness have be examine on both side on the that of June and upon a very  full debate the court declare that the plaintiff ought to be pay the tithe in  kind of all sea fish take by the defendant by boat etcetera keep in the say  rectory whether take with saynes or drift net or other craft except what be  use for bait or meased in the sleeve of saynes and that payment of the ten  penny for which the fish be sell be in effect payment of tithe in kind and  that the late usage of take pilchard in drift net for other purpose than for  bait be fraudulent put in practice to defeat the custom but ought not to avoid  the payment of tithe and decree the defendant to account accord which account  be afterward take and upon the report thereof be confirm on the that of  December soon afterward the defendant in that cause with other of the  fisherman to the number of in all sign a note or memorandum on the back of the  writ of execution of the say decree promise to pay tithe in the word of the  decree to the then plaintiff his heir and assign and from the time of this  decree tithe be pay agreeable to the custom to the respondent father during  his life and after his death to the respondent mother who hold the rectory as  her jointure and from the time of her death to the respondent himself until  the year when some of the fisherman refuse to pay their tithe of pilchard and  herring catch in drift net and their example be soon follow by many other the  respondent in Hilary term exhibit his bill in the court of exchequer against  the appellant two of who videlicet John Tregurtha and John brown er p James be  defendant in the former cause for a discovery and satisfaction of the tithe of  pilchard and herring catch by the appellant since the that of march in Mount  bay and at or near saint Ives Fowey Mevagissey and other fish place in the sea  adjoin by and with fish craft keep within the say rectory as aforesaid the  bill charge the custom to be as above state and to have be establish by the  brown former decree and that the appellant have so take within that time great  quantity of pilchard and herring but refuse to pay the tithe thereof pretend  that there be no such custom especial for fish catch near saint Ives Fowey  etcetera or other remote fish place or in drive net the appellant put in three  several answer to this bill and although by the last of such answer they say  they have pay all their tithe fish to the respondent or his agent up to the  that of September yet by the first answer they deny that they know or believe  that there be such custom as aforesaid of pay tithe and insist that such  custom be unreasonable and from which they hope to be relieve for that the  respondent have no land in the say rectory whereon to more their boat and they  be force to pay other for such liberty and also port farm to the duke of  Cornwall and be at great charge for boat and net which will not last above  four year whereas saynes be use near the shore will last a man age and that  the ten fish be sometime half and at other time the whole profit they also  insist that the former decree be not bind on they they be no party thereto  except the appellant John Tregurtha and John James who say that they conceive  that decree to be hard and therefore not bind on they issue be join several  witness be examine on both side and on the d of July the cause be hear and  direction be give for try the custom on a issue at law at the next assize for  the say county and in the meantime by consent the appellant be to pay their  tithe as usual of late year before the suit begin without prejudice the  respondent petition for a rehear because the custom as set forth by his bill  be allow and confirm by the decree in his father cause which appear to have be  make on very solemn and mature debate and to have be acquiesce in above year  so that it be become very difficult to show by live witness what the custom be  previous to that decree and also because it appear through the whole series of  deposition on both isdes in this cause that there be not the least colour or  doubt but that the tithe of pilchard and herring catch in the codds of saynes  or the ten penny of what the same have be sell for have be continual pay and  that the only doubt if any be about the tithe of fish take in drift net which  be a matter full settle by the former decree on the that of may the cause be  reheard when the appellant counsel still insist to try the custom at law the  court direct that a trial shall he have at the bar of the say court by a  special jury of the county of Middlesex to try whether there be such a custom  as be lie and insist upon in the bill or not on the that of November follow  the trial be accord have and several age witness bring from Cornwall be  examine on the say trial and after a long defence make by the appellant the  jury give their verdict to the satisfaction of brown the court and thereby  find that there be such custom as aforesaid on the that of December the cause  be hear upon the equity reserve when the court declare that the custom be good  at law and decree that the same shall be establish and that accord to such  custom the appellant shall account for the value of the tithe or the ten part  of all pilchard and herring by they take since the that of march to the time  of exhibit the bill and that the respondent shall have his cost both at law  and in equity to be tax by the deputy remembrancer from this decree the  present appeal be bring and on behalf of the appellant it be contend I  shepherd t booth that by the variation of the first order or decree in direct  the issue to be try by a jury of Middlesex instead of a jury of Cornwall the  appellant be put under great difficulty and disadvantage in bring their  witness from so great a distance as near mile and especial such of they as be  age and infirm and that a jury of Middlesex who be entire stranger to the  custom of Cornwall and to the manner of fish there can not be so well brown er  p able to judge upon the matter in issue as a jury of that county that the  custom be unreasonable and void inasmuch as it require the ten part of the  fish to be pay in kind without any allowance or deduction to be make for the  charge and expense in catch the same or in provide boat net or other fish  craft whereas the tithe demand in this case can only be due by custom and  claim as a personal tithe and as such all expense and charge of that kind  ought to be deduct but which though it most common amount to the half and  sometime to the full value of the fish so take be not provide for by this  decree and though the more tie and keep of boat net and other fish craft in  the parish when not use be assign as a reason or consideration for the custom  yet the respondent do not find or provide any place convenient for that  purpose or contribute towards the charge thereof but the appellant be force at  their own expense to procure proper place for keep their fish craft both when  and when not use and to make yearly payment to the owner of the soil for the  same that by this custom the appellant be oblige to pay tithe in kind for all  fish not except in the custom which be take not only in Mount bay but also in  the adjoin sea which be unlimited and unconfined and in consequence thereof  they be oblige to land their fish in the say parish and not elsewhere to be  there tell or taled and the tithe to be pay in kind before they can cure or  dispose of they though take in place ever so remote which many time from great  distance and stormy weather be impracticable and put they under great  difficulty and hazard either of keep the fish so long as to render they unfit  for use or be deprive by attempt to land they of the opportunity and advantage  of catch those quantity which they otherwise may take that if this custom  shall prevail brown it will tend to the ruin of the appellant and their family  and they will be under the necessity of breed up their child to other business  in order to enable they to get a live whereby very valuable nursery for seaman  will be destroy which have in all time afford a supply of the able man for the  public service in time of need and the fish trade in those part so  advantageous to the nation will be in great danger of be lose it be therefore  hope that the decree will be reverse or at least so alter as that the  appellant may only account for the ten penny of the profit make of the fish by  they take first deduct their charge and expense in catch such fish and in  provide boat net and other fish craft and for more and keep the same when not  use to all this it be answer on the other side t reeve c Eyre that the custom  will be vain and fruitless if it extend only to such as be owner of the fish  craft with which the fish be take because in that case every one may exchange  with his neighbour the use of their craft and none catch a fish in his own  craft that the distance at which fish may be take and bring to shore fresh and  good will sufficient limit the extent of the custom as to the fish take in  Mount bay and the adjoin sea but any other limit will whole frustrate the  custom since it will be impracticable for the rector to discover whether the  fish be take within or beyond such other limit that no direction be give by  the decree as to land the fish it only establish the custom and direct the  appellant to account for the value of the tithe demand by the respondent and  there be nothing either in the custom or decree which oblige the appellant to  do any thing impossible or unreasonable that the tithe of fish be Payable only  by custom be admit but that it can be claim only as a personal tithe downward  pull expenditure be deny for where as in the present case tithe in kind be due  only by the custom it seem impracticable to deduct the expense that the  statute of Edward VI which give remedy for praedial and personal tithe enact  express that tithe fish be pay accord to custom and therefore this be within  the reason of praedial tithe where no allowance or deduction be make for the  rend of the land blow sow reap etcetera and the answer in this case be that no  such expense be Allowable by the custom after hear counsel on this appeal it  be order and adjudge that the same shall be dismiss and the decree therein  complain of affirm jour vol p brown er p