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that the inhabitants of the respective parishes adjoining to the common, had, time out of mind, paid tythes for their cattle fed thereon, to the incumbent of the parish where the owner of such cattle lived, and where, in the winter season, they were kept; that he had paid tythe for his cattle fed upon the said common to the incumbent of Kirby-cane, in which parish he lived, and to the [445] Rector of Stockton, where his other farm lay; and that he had two parcels of Dole lands in Gelston common, where he had a right to feed cattle, and cut alders; but could not come at those lands without driving over that part of the common called Micklefenn, which lay in the said parish of Ellingham.

On the 21st of July 1709, the cause was heard; when the court was pleased to decree, that the defendant should account for the tythes of his cattle fed upon that part of Micklefenn common, which lay in the said parish of Ellingham; and also for the modus of 2d. an acre for his meadow land in that parish.

From this decree the defendant appealed, insisting (S. Dodd, F. Page), that tythes had never been paid, nor were any due to the respondent as Rector of Ellingham, for the appellant's cattle fed on that part of the common called Micklefenn, which lay in the said parish; and therefore, the appellant ought not to have been decreed to account for such tythes; for, in that case, he would pay his tythes twice over, and such payment would create perpetual suits and controversies, as well between the parsons as the parishioners of the said several parishes. And as to the modus of 2d. an acre, the appellant never contested or denied the payment of it; but, the contrary, was always ready and willing to pay it; and that therefore, in this respect, the bill ought to have been dismissed, with costs.

To this it was answered (W. Ettricke, C. Phipps), that the appellant's cattle, for which the tythes were decreed, were dry, barren, and unprofitable cattle, and not by law tythable to the Minister of the parish where the owner lived, for the time they were fed in the respondent's parish, but to the respondent as Minister of the parish where they were fed; and therefore, the suggestion of paying double tythes, was groundless. That if the respondent should not have tythes for the feed of these cattle upon the lands within his parish, the herbage of all the pasture land therein might be eaten by the cattle of strangers, without his receiving any satisfaction for the same; and there would be a non decimando for the feed of the appellant's cattle, during the time they were fed in the respondent's parish, because, for that time, the Minister of the parish where the appellant lived, could have no pretence of right to such tythes.

But after hearing counsel on this appeal, the question was put, Whether the decree should be reversed? And being resolved in the affirmative, it was ordered and adjudged, that the decree of the Court of Exchequer, in the appeal complained of should be reversed; and that the plaintiff's bill in the Court of Exchequer, should be dismissed, without prejudice to his right to the modus of 2d. per acre, for the five acres of land in Ellingham. (Jour. vol. 19. p. 63.)

The respondent was owner of the rectory impropriate of the parish of Paul, which is an ancient rectory adjoining to the sea, and extending into Mount's Bay, and hath, time immemorial, been a fishing town; and within the said rectory and parish there is, and, time out of mind, hath been used and approved, the following custom of tything fish, viz.

That every parishioner of the said parish, and others, being proprietors or occupiers of any fishing boat, net, or other fishing craft, usually tied, moored or kept within any part of the said rectory or parish, when not actually used in fish-