Page:The English Reports v1 1900.pdf/1072

James, were defendants in the former cause,) for a discovery and satisfaction of the tythes of pilchards and herrings, caught by the appellants since the 25th of March 1722, in Mount's Bay, and at or near St. Ives, Fowey, Mevagissey, and other fishing places in the seas adjoining, by and with fishing craft kept within the said rectory as aforesaid; the bill charging the custom to be as above stated, and to have been established by the [448] former decree, and that the appellants had so taken within that time great quantities of pilchards and herrings, but refused to pay the tythe thereof, pretending that there was no such custom, especially for fish caught near St. Ives, Fowey, etc. or other remote fishing places, or in driving nets.

The appellants put in three several answers to this bill, and although by the last of such answers they said they had paid all their tythe fish to the respondent or his agents, up to the 29th of September 1724, yet by the first answer they denied that they knew or believed that there was such custom as aforesaid, of paying tythe; and insisted that such custom was unreasonable, and from which they hoped to be relieved, for that the respondent had no lands in the said rectory whereon to moor their boats, and they were forced to pay others for such liberty, and also port farm to the Duke of Cornwall, and were at great charges for boats and nets, which would not last above four years; whereas saynes, being used near the shore, would last a man's age, and that the tenth fish was sometimes half, and at other times the whole profit they also insisted, that the former decree was not binding on them, they being no parties thereto, except the appellants John Tregurtha and John James, who said that they conceived that decree to be hard, and therefore not binding on them.

Issue being joined, several witnesses were examined on both sides, and on the 3d of July 1727, the cause was heard, and directions were given for trying the custom on an issue at law, at the next assizes for the said county; and in the meantime, by consent, the appellants were to pay their tythes as usual of late years before the suit began, without prejudice.

The respondent petitioned for a rehearing, because the custom, as set forth by his bill, was allowed and confirmed by the decree in his father's cause, which appeared to have been made on very solemn and mature debate, and to have been acquiesced in above 47 years; so that it was become very difficult to show by living witnesses, what the custom was previous to that decree; and also, because it appeared through the whole series of depositions on both isdes in this cause, that there was not the least colour or doubt, but that the tythes of pilchards and herrings caught in the codds of saynes, or the tenth penny of what the same had been sold for, had been continually paid; and that the only doubt, if any, was about the tythe of fish taken in drift nets, which was a matter fully settled by the former decree.

On the 9th of May 1728, the cause was reheard, when the appellants counsel still insisting to try the custom at law, the court directed that a trial should be had at the bar of the said court, by a special jury of the county of Middlesex, to try whether there was such a custom as was laid and insisted upon in the bill, or not.

On the 6th of November following the trial was accordingly had, and several aged witnesses, brought from Cornwall, were examined on the said trial; and after a long defence made by the appellants, the jury gave their verdict to the satisfaction of [449] the court, and thereby found that there was such custom as aforesaid.

On the 5th of December 1728, the cause was heard upon the equity reserved, when the court declared, that the custom was good at law, and decreed that the same should be established; and that according to such custom, the appellants should account for the value of the tythe, or the tenth part of all pilchards and herrings by them taken, since the 25th of March 1722, to the time of exhibiting the bill; and that the respondent should have his costs both at law and in equity, to be taxed by the Deputy Remembrancer.

From this decree the present appeal was brought; and on behalf of the appellants it was contended (J. Shepherd, T. Booth), that by the variation of the first order or decree, in directing the issue to be tried by a jury of Middlesex, instead of a jury of Cornwall, the appellants were put under great difficulties and disadvantages in bringing their witnesses from so great a distance as near 300 miles, and especially such of them as were aged and infirm, and that a jury of Middlesex, who were entire strangers to the customs of Cornwall, and to the manner of fishing there, could not be so well