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belonged three rectors or parsons, presented as first, second, and third rectors or portioners of the parish church of Burford, with the chapels thereunto annexed; and that all the tythes within the several townships or vills in the parish, had been for time out of mind distinguished, as to what belonged to each portioner; and that respondent, Bayley, was the first portioner or rector, and the respondent, Sparry, the third, and intitled amongst other parochial tythes, to all the tythes within the manor and township of Whitton, (viz.) each to a moiety; and that upon appellants refusing to set out or pay them the tythes, respondents exhibited their bill against them in the Exchequer; and that they, by their answer, insisted upon a modus of 12l. per annum, in lieu of tythes; and upon the hearing, prayed a trial at law, whether a modus or not; but the Barons unanimously declared, there was no ground to direct such a trial, and decreed appellants to account for their tythes; and respondents insisted that decree ought to be affirmed by the Lords, because it appeared by several ancient terriers and presentments, filed in the Bishop of Hereford's Consistory Court, some made above one hundred years past, that one moiety of all tythes in Whitton belonged to the first portioner, and the other moiety to the third portioner, and no trace in any of them of any modus whatsoever; and also because it appeared in proofs, that the owners and occupiers of lands in Whitton, had made several agreements or compositions with former rectors, under hand and seal, (viz.) 20th June, 1679, between Thomas Bannister and William Bishop, then first and third portioners, and William Biggs, then steward to Sir Job Charlton, appellant's father, that Sir Job and his assigns should enjoy all the tythes belonging [208] to the demesne lands in Whitton for three years, in as ample manner as Mr. Bright formerly enjoyed them, paying 7l. per annum. if the portioners lived so long: And 23d of the same month, between the same portioners and George Maycocks, and Edward Jones of the township of Whitton, that they should enjoy their sythes in Whitton, and all other tythes in Whitton for three years, (except those before let to Sir Job,) paying per annum. 5l. 10s. and that the great charge and trouble in gathering the tythes in kind, which would have amounted to near the value thereof, obliged the portioners formerly to make moderate compositions: And that it appeared by proofs in the cause, that appellants had paid 12l. 10s. for upwards of twenty years past, which as well as the agreements, is inconsistent with the modus set up. that sum having been formerly equivalent to the value of their tythes; wherefore respondents contended, that the decree of the Court of Exchequer should be affirmed, and respondents not compelled to contest their right at law, appellant, Sir Francis being very rich, and powerful. (Con. Phipps.)

Die Lunæ, 13 Aprilis, 1702. After hearing council upon this appeal, it was adjudged by the Lords, that the same should be dismissed, and the decree complained of affirmed. Lords Journ. vol. xvii. p. 95.

The appellants made this case: That James, Earl of Clanbrasil, upon his marriage with his Countess Ann, made a settlement of lands of about 2000l. per annum, on her for her jointure; and afterwards by will, dated 18th June, 1659, made on his death-bed, devised one-third part of his estate to her for life, and the other two-thirds for maintenance of his only sons, Henry and Hans, and for payment of his debts; and if these two sons should die without issue before his debts paid, then the remainder after his debts paid to the eldest sons or issue male of his five uncles, as it could be laid out in most equal and just divisions; and soon after died: And that Countess Ann entered and enjoyed her jointure, and received the profits of the rest of the estate as guardian to her sons: And that Hans, the younger son, died without issue; and Earl Henry, the eldest, attained his age of 21 years, married, and then levied fines, and suffered recoveries of all the estate not in jointure to the Countess bis mother, except some small parts that were in lease for lives; and by his will 27th March, 1674, devised all his estate in Ireland