Page:The English Reports v1 1900.pdf/1538

supposed, that an agreement was made soon after the last order, between Richard Balam, the plaintiff, and the Countess of Devonshire, and Mr. Ashfield, that Mr. Ashfield should pay to Richard Balam four quarters of wheat yearly, or £8 per ann. in lien thereof, and that the Countess of Devonshire should pay to Balam 40s. a year, in lieu of the quarter of wheat due to him; and that in consideration of her paying the 40s. per ann. to Balam, Mr. Ashfield would discharge her of the payment of the one acre of wheat, due to him out of the demesnes of Latimers.

This agreement, or manner of payment, was observed many years, during the times of several succeeding chaplains and lords of Latimers, and all the lifetime of Sir Jeremy Whichcote Bart. who purchased the parsonage of Chesham Leicester of Mr. Ashfield; and upon the death of Sir Jeremy in 1677, the parsonage came to Sir Paul Whichcote, his son and heir, who all along paid to the chaplains of Latimers £8 a year in lieu of the four quarters of wheat; and the lord of Latimers, for the time being, also constantly paid to the chaplains 40s. a year, in lieu of the fifth quarter of wheat.

On the death of one Mr. Hughes in 1703, the appellant was appointed chaplain of the chapel of Latimers, where he duly performed divine service, and received yearly from Sir Paul Whichcote, or his tenant of the parsonage, from 1703 to 1708, the £8 per ann. in lieu of the four quarters of wheat; and he also received from the lord of the manor of Latimers, 40s. in lieu of the fifth quarter of wheat.

[599] But in 1709, the appellant and Robert Gainsford, the lessee of the parsonage under Sir Paul Whichcote, and who usually paid the appellant the £8 per ann. in lieu of the four quarters of wheat, and had the same allowed him in his accounts with Sir Paul, having a dispute about the division of their tything, Gainsford declared he would not pay the appellant the £8 per ann. any longer without being compelled to it by law, though he at the same time acknowledged it was the appellant's right, but kept the arrears in his hands; and in order to encourage Sir Paul to contest the justice of the appellant's demand, Gainsford undertook to bear the whole expense of any suit which the appellant should bring against Sir Paul, and for that purpose gave a note under his hand to Sir Paul, dated the 3d of December 1713, whereby he promised to pay to the chaplain of Latimers the sum of £25 if it appeared he was entitled to the same, and to indemnify Sir Paul from the payment thereof, and from all damages, costs, or charges, by reason of the non-payment thereof; and if it should not appear to be due to the chaplain of Latimers, then he promised to pay the £25 to Sir Paul on demand; and Sir Paul afterwards suffered Gainsford to keep in his hands the £8 per ann. till 1719, about which time Gainsford died, the arrears whereof to that time amounting to £88; and the respondent Sir Francis Whichcote then being owner of the parsonage of Chesham Leicester, he prevailed on Ann Harding, the representative of Gainsford, to pay him the £88, for which he gave the following receipt viz.

February 11, 1719, received then of Mrs. Ann Harding, administratrix of Mr. Robert Gainsford deceased, by the hands of Mr. Griffiths, the sum of £80, which, with £8 received of Mr. Harding, is in full of money detained by Mr. Gainsford in eleven several years out of the rent, by the consent of Sir Paul Whichcote, my father, on account of a demand made out of his farm by the chaplain of Latimers; and whereas the said Mr. Gainsford gave my father a bond or note to indemnify him on that account, I do promise to deliver up and cancel the same as soon as I go to Quy, where it is, and to indemnify Mrs. Harding on account of paying me the said money.

Sir Francis having thus received the money, and refusing to pay the appellant the arrears of the £8 per ann. from the year 1708, though divers applications were made to him in the most friendly and respectful manner, the appellant therefore, in Trinity term 1723, exhibited his bill in the court of Exchequer against the respondent Sir Francis, and the said Ann Harding, which afterwards, upon her death, was revived against the respondent John Harding, to have the arrears of the four quarters of wheat yearly payable out of the parsonage of Chesham Leicester, or £8 per ann. in lieu thereof, paid to him; the appellant admitting by his bill that he had all along received of the lord of Latimers 40s. per ann, in lieu of the fifth quarter of wheat; and also to have the appellant's right to the five quar-[600]-ters of wheat, confirmed and established by the decree of the court.

Issue being joined, and divers witnesses examined, and the cause coming to be heard on the 26th of November, and the 4th of December 1730, the appellant offered to read,