Page:The English Reports v1 1900.pdf/893

before he purchased; but both the appellants denied the legality of every article of the respondent's demands.

The cause being at issue, as to the new matters alledged by the supplemental bill, divers witnesses were examined on the part of the respondent touching the same; and publication having duly passed, the cause came on to be heard before the Barons, on the 24th of November 1743; when it was ordered and decreed, that the said ancient annual payments of four quarters of wheat, four quarters of barley, and four quarters of oats, and of 40s. yearly should be established; and that the appellant Cooke should account for the same before the Deputy Remembrancer, according to the value of the said respective quantities of corn, and also for the said 40s. a-year during the several years he was in possession of the said rectory, or received the rents and profits thereof; and that the appellant Wilkes should also account for the value thereof, from the time he purchased and came into the possession of the said rectory; and that what should be found due from the appellants respectively on the said account, should be paid by them respectively to the respondent; and that the appellant Cooke should pay to the respondent, the costs of suit to the time of filing the supplemental bill, and that both the appellants should pay the costs thereof from that time.

The respondent thinking himself aggrieved by so much of this decree, as directed the appellant Wilkes to account for and pay the value of the corn and the 40s. a-year, only from the time [187] of his purchase; and being advised that the said yearly payments of corn and money affected the estate and inheritance of the said rectory, and were an incumbrance and charge thereon, and on the tithes and possessions thereof, which had been purchased by the appellant Wilkes; and that the respondent was entitled to a satisfaction for all the arrears of the said yearly payments out of the said rectory, into whose hands soever the same should come; the respondent therefore applied to the Court of Exchequer to rehear the cause on that point, and it was accordingly reheard on the 23d of April 1744; when the court decreed, that the former decree should be varied in the following manner, viz. the court unanimously declared, that the yearly payments of four quarters of wheat, four quarters of barley, and four quarters of oats, and the said annual payment of 40s. demanded by the respondent's original and supplemental bills, and the arrears thereof, were a charge on the impropriate rectory of Chishull Magna; and it was ordered, adjudged, and decreed, that the said payments should be, and the same were thereby established for the future; and that both the appellants should come to an account with the respondent before the Deputy Remembrancer, for the arrears of the said several quantities of corn, according to the value thereof; and also for the arrears of the said annual payment of 40s. from the time the respondent was instituted and inducted to the said vicarage, and should satisfy and pay to the respondent what should appear to be due for the same, and it was referred to the Deputy to take the account; in the taking of which account, he was to distinguish what part of the said arrears accrued due in the time the appellants had been respectively in possession of the said rectory, and was to make the appellants all just allowances; and it was further ordered and decreed, that if the appellant Wilkes should pay, or should be compelled to pay any thing to the respondent on account of any arrears which accrued due in the time of the appellant Cooke; then the appellant Wilkes was to be at liberty to prosecute that decree against the appellant Cooke, in the name of the respondent, in order to reimburse himself what be should so pay on account of such arrears and all other parts of the former decree, not thereby varied or altered, were to stand and be observed by all parties.

From both these decrees the appellant appealed; insisting (D. Ryder, J. Lacy), that the endowment and augmentation made by the Bishop to this vicarage of corn and money, was only a personal charge upon the impropriator for the time being, for which no distress by law could be had, and not any charge upon the land, to bind the same with the payment of the arrears of this corn and money, in whose hands soever the rectory should come; and consequently, that the appellants ought not, either in law or equity, to be answerable to the respondent for any arrears of corn and money, which accrued due before the time that they respectively became impropriators. That the appellant Cooke was answerable for these allowances of corn and money, only during the time of his being [188] in possession of the rectory;