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the tithe small, and rather than give any colour for a suit, he ordered his servant, mowing there in 1729, in case the respondent's agent demanded tithe hay, to set it out: That soon after, Henry Davies, the respondent's servant, who had been a tithe gatherer 30 years, being offered to have the hay tithed, answered, he never gathered tithe from thence and would not meddle with it, and they might carry it away; whereupon the hay was carried home [408] untithed. That in the year 1730, Edward Turner, the respondent's agent, came to the said meadow and saw the hay tithed, and opened one of the cocks; and imagining that no tithes were due went away, and said he would consult Howell Lewis, the respondent's chief agent; and soon after returned, and said, he would not meddle with it; whereupon the appellant carried it home: and that having grazed the said meadow each year, till the middle of May, he had but little hay, and believed the tithe thereof was not worth above 1s. 6d. each year; but knew not how the said meadow became exempt from the payment of tithes.

Issue being joined, several witnesses were examined, who proved the demand of tithe hay of the said meadow, and that the appellant forbid the respondent to take the same; but no proof was given of the pretended exemption.

On the 15th of November 1733, the cause was heard before the Barons of the Exchequer who decreed, that the appellant should account with and satisfy the respondent, for the value of the tithes of hay of the said meadow, for the years 1729 and 1730 and it was thereby referred to the Deputy-Remembrancer to take such account, and to make his report with all convenient speed; and the cause was to continue in the paper of causes, to be further heard upon coming in of the said report.

In pursuance of this decree, the Deputy, on the 3d of February 1734, made his report, and thereby certified, that there was due to the respondent from the appellant, for the value of the tithe of hay of the said meadow, for the years 1749 and 1730, the sum of 9s. And the cause being heard upon this report, on the 10th of the same month, the Court decreed, that the report should be confirmed, and that the appellant should pay the respondent the said s. reported due, together with the costs of the suit to be taxed; and which were afterwards taxed at the sum of £51 5s. 8d.

The appellant, rather than satisfy this demand, appealed from the decree; insisting (R. Pauncefort, J. Griffith), that the bill being founded on a supposed fraud in the appellant in concealing his tithes, and praying & discovery and account of the tithes so supposed to be concealed; and the appellant having by his answer denied any concealment, the respondent, in order to entitle himself to any decree upon such a bill, ought to have verified the allegations of it; but which he had not attempted to do. That the appellant having stated the matter of fact, as to the tithe of the meadows, and denied all fraud; and as no fraud was attempted to be proved upon the commission, or insisted on at the hearing; nothing remained in controversy between the parties, or to be accounted for, but a demand of 3s. or 4s. for which the respondent might have had, and ought to have taken his remedy in a Court of Law; and not brought the appellant into a Court of Equity for a demand so very inconsiderable, as to be beneath the dignity of the Court to take any notice of. But supposing the decree proper, there was not the least colour to decree the appellant to account for the tithe hay of the year 1730, which he had actually set out, and which the re-[409]-spondent's agent might have carried away, but would not meddle with; nor was there any evidence, that the hay in question was worth 9s. If, however, it really was worth that sum, the decreeing costs, which amounted to £51 5s. 8d. was surely a punishment more than equal to the appellant's crime in not paying 9s. and especially as he had sworn in his answer, that the respondent never demanded satisfaction. Under these circumstances therefore, it was hoped that the decree would be reversed, and the respondent's bill dismissed with costs.

On the other side it was said (J. Strange, R. Lloyd), that tithes in kind are due of common right, and no presumption from report only ought to be of any weight to avoid a demand so founded; and though the appellant by his answer had set up a pretence of exemption from tithes, yet he had given no proof of it; nor had he set up any modus or composition in lieu of tithes. That it appeared clearly from the proceedings in the cause, that the appellant controverted the respondent's right to the tithes, and therefore it was proper to sue in a Court of Equity, in order to ascertain and settle such right. And that the appellant's answer, as to his not disputing the respondent's right, was inconsistent with itself; for though he admitted that he would