Page:The English Reports v1 1900.pdf/1073

able to judge upon the matter in issue as a jury of that county. That the custom was unreasonable and void, inasmuch as it required the tenth part of the fish to be paid in kind, without any allowance or deduction to be made for the charges and expences in catching the same, or in providing boats, nets, or other fishing craft, whereas the tythes demanded in this case could only be due by custom, and claimed as a personal tythe, and as such all expences and charges of that kind ought to be deducted, but which, though it most commonly amounted to the half, and sometimes to the full value of the fish so taken, was not provided for by this decree. And though the mooring, tying, and keeping of boats, nets, and other fishing craft in the parish, when not used, were assigned as a reason or consideration for the custom; yet the respondent did not find or provide any place convenient for that purpose, or contribute towards the charge thereof; but the appellants were forced at their own expence to procure proper places for keeping their fishing craft, both when and when not used, and to make yearly payments to the owners of the soil for the same. That by this custom the appellants are obliged to pay tythes in kind for all fish, not excepted in the custom, which are taken not only in Mount's Bay, but also in the adjoining seas, which is unlimited and unconfined; and in consequence thereof, they are obliged to land their fish in the said parish and not elsewhere, to be there told or taled, and the tythes to be paid in kind before they can cure or dispose of them, though taken in places ever so remote; which many times from great distance and stormy weather is impracticable, and puts them under great difficulties and hazard, either of keeping the fish so long as to render them unfit for use, or being deprived, by attempting to land them, of the opportunity and advantage of catching those quantities which they otherwise might take. That if this custom should prevail, [450] it would tend to the ruin of the appellants and their families, and they would be under the necessity of breeding up their children to other business in order to enable them to get a living, whereby a very valuable nursery for seamen would be destroyed, which has in all times afforded a supply of the ablest men for the public service in time of need; and the fishing trade in those parts, so advantageous to the nation, would be in great danger of being lost. It was therefore hoped, that the decree would be reversed, or at least so altered, as that the appellants might only account for the tenth penny of the profit made of the fish by them taken, first deducting their charges and expences in catching such fish, and in providing boats, nets, and other fishing craft, and for mooring and keeping the same when not used.

To all this it was answered on the other side (T. Reeve, C. Eyre), that the custom would be vain and fruitless, if it extended only to such as were owners of the fishing craft with which the fish were taken; because in that case every one might exchange with his neighbour the use of their craft, and none catch a fish in his own craft. That the distance at which fish might be taken and brought to shore fresh and good, would sufficiently limit the extent of the custom, as to the fish taken in Mount's Bay and the adjoining seas, but any other limits would wholly frustrate the custom, since it would be impracticable for the Rector to discover whether the fish were taken within or beyond such other limits. That no direction was given by the decree as to landing the fish, it only established the custom, and directed the appellants to account for the value of the tythes demanded by the respondent; and there was nothing either in the custom or decree which obliged the appellants to do any thing impossible or unreasonable. That the tythe of fish being payable only by custom was admitted, but that it could be claimed only as a personal tythe, deductis expensis, was denied; for where, as in the present case, tythes in kind are due only by the custom, it seems impracticable to deduct the expences. That the statute of Edward VI. which gives remedy for predial and personal tythes, enacts expressly, that tythe fish be paid according to custom, and therefore this is within the reason of predial tythes, where no allowance or deduction is made for the rent of the land, plowing, sowing, reaping, etc. and the answer in this case is, that no such expences are allowable by the custom.

After hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed, and the decree therein complained of, affirmed. (Jour. vol. 23. p. 490.)