Page:The English Reports v1 1900.pdf/1116

fee, or of some other estate of inheritance, or possessed for some long term of years, or otherwise entitled in his own right, or in trust for his children, William Redman, Watkinson Redman, and Alice, the wife of Richard Atkinson, in and to all those the tenths and tythes of corn, grain, hay, and other tythes, as well great as small, of what nature and kind soever; with all and singular the rights, members, and appurtenances, yearly arising and growing within the villages, fields, and hamlets, of Eastnesse, Crook-Holme, and South-Holme, within the parish of Hovingham, in the county of York, by indenture, dated the 27th of June 1721, made between the said William Redman, of the one part, and the respondent of the other part; the said Redman demised to the respondent, all and singular the said tythes of corn, grain, and hay, with all and singular their rights, members, and appurtenances, yearly and from time to time, coming, growing, increasing, and renewing, within the villages, fields, and hamlets of Eastnesse, Crook-Holme, and South-Holme, or in any of them within the parish of Hovingham aforesaid, and late belonging to the dissolved monastery of Newbrough, in the said county; and all other the tythes, as well great as small, with their and every of their rights, members, and appurtenances, of whatsoever nature, kind, or condition the same were; and all his the said William Redman's right, title, interest, claim, and demand whatsoever, as trustee for his said children, of, in, or to the said tythes and premises, or any part thereof; to hold the same to the respondent, his executors, administrators, and assigns, from the 25th of March preceding the date of the said indenture, for twenty-one years, under the yearly rent of £20. That by this lease, the respondent became fully and legally entitled to receive, or otherwise to have a satisfaction made to him, for all the said tythes, growing or arising within all or any the places aforesaid. That the appellant, who was owner and occupier of several lands, pasture and meadow, within Eastnesse aforesaid, refused to pay the respondent, or to make him any satisfaction for the small tythes and herbage arising from the ap-[513]-pellant's lands, in Eastnesse aforesaid, or which did grow or renew in the year 1721, out of or upon the said lands and grounds; wherefore the bill prayed, that the appellant might set forth the particular quantities and values of the said tythes, and that the respondent might have a satisfaction for the same, and be otherwise relieved in the premises.

To this bill the appellant demurred; and for causes of demurrer alledged, that the respondent had not by his bill set forth, as he ought to have done, how William Redman, who thereby appeared to be a layman, became entitled to the tythes demanded by the said bill, whether by grant, prescription, or otherwise, or what estate the said William Redman had in the said tythes, or whether he had power to demise the same, or that any estate in the said tythes did or could pass from the said William Redman to the respondent. For which reasons, and other defects in the said bill, the appellant prayed the judgment of the court, whether he should be compelled to make any further or other answer thereto, and prayed to be dismissed with costs.

On the 18th of May 1723, this demurrer was argued, when the court were divided in opinion; the Lord Chief Baron Montague, and Mr. Baron Gilbert, being for over-ruling it, and Mr. Baron Price, and Mr. Baron Page, for allowing it; whereupon, according to the course and practice of the court in such cases, the demurrer was ordered to be over-ruled, but without costs; and that the appellant should put in his answer to the said bill.

From this order the present appeal was brought; and on behalf of the appellant it was insisted (T. Lutwyche, C. Talbot), that William Redman, under whose lease the respondent claimed, not being a Rector, or one who was entitled to tythes of common right, the respondent ought to shew a title in Redman, that the appellant might have an opportuinty of enquiring into, and satisfying himself concerning the title; and if he found it good, that he might submit to pay tythes, without further trouble or expence. That the pretence of title in William Redman, might be under a term of years which the respondent did not set forth, nor for what time that term was to continue; and, for any thing which appeared by the bill, the term might be expired. That the bill stated Redman to be entitled in his own right, or in trust for his children; and that he demised to the respondent all his right, title, interest, claim, and demand, as trustee for his said children; whereas it did not appear what the trust was, or what his estate was which he had as trustee; neither did it appear, that