Page:The English Reports v1 1900.pdf/1071

ing have paid, and ought to pay to the owner or proprietor of the said rectory, for the time being, the tenth part of all great and small fish taken in the said bay, or other adjoining sea or seas, with such boats, nets, or fishing craft, except only such fish as have been used for bate to catch other fish, and also fish meased (or caught by the head) in the sleeves of certain nets called saynes.

These saynes are very long and deep nets, of a close or narrow mease, and are used in this manner, viz. in bright days, persons called Hewers, being placed on adjacent hills to discover the shoals of fish, give signs to the sayners, or persons attending the Haynes, whereabout the shoals of fish are; and then the sayners draw out their saynes and encompass the fish, and draw towards the shore, and by degrees the whole shoal is, by the sleeves, guided into the codd of the sayne, and there taken without being hung by the head; but sometimes it happens, that some of the fish being distasted, strike against the sleeves, and there are hung by the head; but being few, and anciently thought not fit to be used, were given to the poor fishermen for their trouble in taking them out; and the owner of the craft had no part thereof; and therefore no tythe was paid or demanded for the same.

Driving nets were anciently small nets about ten fathoms long; and when the fishermen went out to take hook fish, they usually hung at the stern of their boat a driving net, against which, as the boat crossed the sea or current, the pilchards struck and were caught by the head, and thence taken as occasion required to bait their hooks; and if any remained when the fishermen came on shore, they sent them home to preserve for bait for the winter season.

The respondent's father, William Gwavas, Esq. deceased, became owner from his ancestors of this rectory in 1669, about which time driving or drift nets began to be used to catch pilchards or herrings for merchandize; it being observed, that [447] though meased or hung by the head, they were fit to be cured; and this use of drift nets increasing, (which also spoiled the sayning trade, as it broke or dispersed the shoal of fish, before it came near the shore,) and the fishermen refusing to pay the tythe of the fish so taken, because they were hung by the head, as were those taken in the sleeves of saynes, of which no tythe was paid; thereupon the respondent's father brought his bill in the Court of Exchequer, against several of the fishermen, for such tythe, charging the custom to be as aforesaid. And in the fishermen's answer to this bill, they admitted the then plaintiff's title to the tythe in kind of hook fish, and to a customary payment for pilchards caught in saynes, (other than what meased or hung by the head,) viz. the tenth part of what they sold for fresh, at the price which the owners of the craft paid the fishermen for their part, being one half; and insisted, that no tythe was payable for pilchards caught in driving nets.

The said cause was heard, many witnesses having been examined on both sides, on the 24th of June 1680; and upon a very full debate, the court declared, that the plaintiff ought to be paid the tythe in kind of all sea fish taken by the defendants by boats, etc. kept in the said rectory, whether taken with saynes, or drift nets, or other craft, except what was used for bait, or meased in the sleeves of saynes; and that payment of the tenth penny for which the fish were sold, was, in effect, payment of tythe in kind; and that the late usage of taking pilchards in drift nets for other purposes than for bait, was fraudulently put in practice to defeat the custom, but ought not to avoid the payment of tythes, and decreed the defendants to account accordingly. Which account was afterwards taken; and upon the report thereof, was confirmed on the 9th of December 1680.

Soon afterwards, the defendants in that cause, with others of the fishermen, to the number of 160 in all, signed a note or memorandum on the back of the writ of execution of the said decree, promising to pay tythes in the words of the decree, to the then plaintiff, his heirs and assigns.

And from the time of this decree, tythes were paid, agreeable to the custom, to the respondent's father during his life, and after his death, to the respondent's mother, who held the rectory as her jointure, and from the time of her death, to the respondent himself, until the year 1722; when some of the fishermen refused to pay their tythes of pilchards and herrings caught in drift nets; and their example being soon followed by many others, the respondent, in Hilary term 1724, exhibited his bill in the Court of Exchequer, against the appellants, (two of whom, viz. John Tregurtha and John