brown case thomas BENNET Appellant MICHEAL TREPPASS and others Respondents  that march Mews dig v see pain v Esdaile a parson sue for S d per pound for  tithe of house in London under the statute Henry c but a issue be direct to  try whether less than that sum have ever be pay although there be no proof of  any regular modus order of the court of exchequer affirm pale yellow Rep Eq  viner vol p note to can bunb the appellant become vicar of the parish of saint  Giles Cripplegate London in April and in Trinity term he exhibit his bill in  the court of exchequer against the respondent as occupier of house within the  parish for tithe in London after the rate of S d in the pound accord to the  yearly rend of their respective house and he ground this demand upon a statute  and decree of Henry VIII whereby it be decree and enact that the citizen and  inhabitant of the city of London and liberty of the same shall yearly without  fraud or covin for ever pay their tithe to the parson vicar etcetera after the  rate follow videlicet of every S rend by the year of all and every house and  house shop warehouse cellar stable and every of they within the say city and  liberty of the same d and of every S rend by the year of all and every such  house and house shop warehouse cellar stable and every of they within the say  city and liberty S d and so above the rend of S by the year ascend from S to S  accord to the rate aforesaid the respondent by their answer to this bill admit  that during the time brown er p therein mention they have respective occupy  house within the say parish videlicet the respondent Treppass a house of the  yearly value of pound the respondent Bocket a house of the yearly value of  pound and the respondent Witchell two house of the yearly value of pound but  they insist that no such demand be ever make as S d in the pound by any former  vicar of the parish nor be the same ever hear of within the parish till the  appellant become vicar which be but two year before the commencement of the  suit and they further insist that they be exempt from such payment after the  rate of S d in the pound either by virtue of a proviso in the say statute and  decree whereby it be provide and decree that where less sum than after the  rate of d in the S rend or less sum than S d in the S rend have be accustom to  be pay for tithe that then in such place the say citizen and inhabitant shall  pay only after such rate as have be accustom or by some other lawful way and  mean brown the cause be at issue and witness examine be beard on the that of  October and there be no proof that the S d be ever pay or demand within the  parish till by the appellant bill and some doubt arise concern the same the  court direct that a case as it appear upon the evidence shall be state and  settle by counsel on both side which be accord do to the effect follow  videlicet that there be no proof in the cause whether the house in question be  or any of they be in lease at the time of make the say act or not or that the  sum of S d in the pound be at any time pay accord to the value of the house by  virtue of the statute and decree of the that Henry VIII but it be prove by  some of the appellant witness in their cross examination on the part of the  defendant that till the time of the present vicar they never hear of any such  demand as S d in the pound for tithe within the say parish that in two ancient  tithebooks there appear to be charge for tithe against the name of the then  occupier of Treppasss house the several sum of S and S d and in another  ancient tithebook the several sum of S S d and S d which last mention sum of S  d and S d be prove to be the collector handwriting but the S charge against  Treppasss house be of another handwriting and in another book the several sum  of S d and S d be so charge and prove to be of the collector handwriting and  that no certain sum annual or modus in relation to Treppasss house be prove to  have be pay but as aforesaid that in another tithebook commence in the year  and end in the year Bockets house be charge S d and Witchells house S each  quarterly it be prove by one suretys that for nine year during the time bishop  foul be vicar of the parish he the say suretys live in Treppasss house and  during that time never pay more to the vicar than S per and or S d per quarter  therefore the question on the say case be whether S d in the pound of the  yearly rend of the say defendant respective house be due for tithe by virtue  of the say statute and decree of that Henry VIII or not this case be twice  argue by counsel on both side first on the that of April and afterward on the  that of October follow but the court conceive some doubt in relation to these  payment order that it shall be refer to a trial at law upon this issue  videlicet whether any and what sum or sum less than S d in the pound have be  accustomable pay for any and which of the house in possession of the  respondent or any and which of they from this order the plaintiff appeal  insist c Phipps e Edlin that no issue whatever ought to have be direct because  there can be no occasion to send those fact to be try by a jury which have  already be settle and agree to by the consent of both party in the above case  and that with so much care and deliberation brown as to take up fifteen month  in prepare the same to the appellant great delay and prejudice that it appear  from the answer of the respondent that there be no one customary rate in that  part of the parish of Cripplegate which lie within the city of London the  respondent Treppasss pretend payment be after the rate of about d in the pound  and Bockets and Witchells after the rate of about d in the pound and no more  and for this reason also it be apprehend a issue be unnecessary that the  respondent have not give the least colourable proof of any modus or customary  payment whatsoever brown er p so as to bring they within the proviso of the  act of parliament nothing more be prove than that between the year and Bockets  house have be charge with S d and Witchells house with S each and as to  Treppasss house that different sum have former be pay videlicet S d and S d  that the respondent ought not in this case to have be admit to read their  proof to support such pretend customary rate because they have not fix or  allege any time when the same be Payable and by the constant practice of the  court of exchequer a modus be hold to be void where no time be allege or  appoint for the payment of it that the neglect of the appellant predecessor to  demand accord to the statute can be no prejudice to a right vest by the  express word of that statute which be make to regulate and establish a  immemorial custom of pay tithe in LondonThe follow note be subjoin to the  appellant case the appellant humble hope he be sufficient authorize in affirm  that this right be vest in the clergy of London by the immemorial custom of  that city antecedent to the statute it appear in the case of dr Dunn relate in  sir h Calthorps report fol from the record of London there refer to and from  several other book of great antiquity that in Henry III there be a ancient  custom which have then be use time out of mind that provision shall be make  for the ministry of London in this manner videlicet that he which pay S for  his house shall offer every Sunday and every apostle day whereof the evening  be fast one halfpenny and he that pay but S rend yearly shall offer but one  farthing which amount to S d in the pound in the whole year there be then  beside the fiftytwo Sunday eight apostle day the vigil whereof be fast and no  more which payment continue till Richard two about which time the clergy  beginning to insist on offer to be pay on twentytwo saint day more it then  amount to S d in the pound yearly and in Henry VI there be a composition  between the citizen of London and the minister that this payment shall be make  accord to that rate but dispute afterward arise there be a submission to the  Lord chancellor and diverse other of the privycouncil and they make a order  for the payment of tithe accord to the rate of S d in the pound which be first  promulgate by proclamation and afterward establish by act of parliament Henry  VIII there be another order or decree make to the same purpose with some  addition and confirm by act of parliament Henry VIII which be the act on which  the appellant now find his demand and therefore it be hope that the decree  will be reverse and that the appellant shall have a account from the  respondent accord to the statute since he must either have that or nothing  there be no proof of any customary rate Payable for the respondent house  sufficient to ground a demand upon on the other side it be say n fazakerley c  Talbot to be usual for court of equity to direct trial where matter of fact  appear doubtful brown especial if such fact depend upon custom and usage which  be matter most proper to be determine by a jury that the constant acceptance  of lesser sum than S d in the pound be apprehend to be sufficient to induce  the court to direct such a issue as they have do as it can not be presume that  the vicar of the parish will so long have accept of such lesser payment if S d  in the pound have be due to they because the same will make the live pound per  and more than it be now worth be only about pound per and that as it appear  that lesser sum than S d in the pound have be pay for the respondent house  respective it be a strong evidence of a accustom payment and especial in this  case where the full sum of S d have never in any single instance be pay nor be  there any evidence that contradict the payment of these lesser sum or prove  any variation in those payment as to the objection make by the appellant that  the direction of the trial will be the occasion of great delay and expense to  he it be say that the contrary be true for that a trial may have be have and a  final decree make in less time and at less expense than what be occasion by  the present appeal but it be manifest that the avoid either expense or delay  have be very little in the appellant view there be a clause in the aforesaid  statute or decree that if any variance controversy or strife do or shall brown  er p arise within the say city for the nonpayment of tithe etcetera or if any  other doubt arise upon any other thing contain within the say decree that then  upon complaint make by the party grieve to the mayor of the city of London for  the time be the say mayor by the advice of counsel shall call the say party  before he and make a final end in the same with cost to be award by the  discretion of the say mayor and his assistance which method if the appellant  have think fit to have take the matter in question may have be long since  determine at a very easy expense and therefore it be hope that the order will  be affirm and the appeal dismiss with cost accord after hear counsel on this  appeal it be order and adjudge that the same shall be dismiss and the order  therein complain of affirm jour vol p