Page:The English Reports v1 1900.pdf/899

To this bill the appellant put in his answer, admitting Mrs. Lane to be seised of the manor of Marsh Baldon, and entitled to present an incumbent to the church or chapel of Marsh Baldon, for that some lord of that manor had founded the same on his own ground near to his mansion-house, and endowed it with lands for the maintenance of a minister to perform divine ser-[196]-vice therein; and that its incumbent was in his own person seised of its profits, and enabled to recover and defend the same in his own right, and as such rector thereof, and had institution as being requisite to vest him therewith; but that such church was founded many years after the establishment of tithes in England, and within time of memory, and that its founder could not endow it with any property, not at his disposal, in prejudice of the rights of the elder church; and that it was not a primitive mother church, or had any rectory or spiritual profits of common right appendant thereto, for that the church of Dorchester was its mother church, under which he claimed, and that the presentations had not from time immemorial been to the rectory and parish church, but on the contrary, for a long series of years within memory, it had been presented to by the name of a chapel, and had not the cure of souls of original right, but as a superadded privilege; neither was the respondent Lane entitled to present to such rectory, for that the addition of rectory was a modern addition, and usurped and improper, in that the rectory of spiritual profits of Marsh Baldon did not belong of common or original right to the church or chapel of Marsh Baldon, or of the advowson of Mrs. Lane, neither was any such rectory excepted by Lewis Pollard in any grant of his; but, on the contrary, only some portion of tithes parcel of the rectory of Baldon, the rectory of Marsh Baldon being mentioned as parcel of the matters granted; and that the appellant's right could not be prejudiced by the presentation, or any other act of any person not entitled to the tithes or spiritual profits of Baldon and that no proprietor of the rectory of Baldon was ever a party to any presentation, and therefore their right was not affected thereby but the appellant admitted Dr. Bacon to be entitled to all such tithes, parcel of the rectory of Baldon, as himself and his predecessors had constantly enjoyed under Lewis Pollard's exception, as an addition to the original endowment of the church of Marsh Baldon.

The cause being at issue, witnesses were examined, and the appellant gave in evidence, that the inhabitants of Marsh Baldon attended the visitation of the church of Dorchester, visitable as a donative peculiar church by its patron Thomas Fettyplace, esq. or his official, as well as the inhabitants of the other Baldons, in acknowledgment of such church being their original parish church, or mother church; and he also proved, by written evidence, that the presentations had not ever from time immemorial been to the rectory and parish church of Marsh Baldon, but that, on the contrary, the first presentation thereto was in the time of King John, and after the year 1209 to the chapel of Baldington, on condition of residence and payment of a pound of frankincense to the mother church of Dorchester; and that it appeared not to have any tithes, or spiritual property, belonging to it in the year 1291; that the word rectory was matter of addition, subsequent to the demise to Allen in the 14th year of King James the First, and the exception therein contained; and that the presentations, [197] for a long series of years after its foundation, were to the chapel, afterwards to the church, then to the parish church, as set out in the appellant's bill, and not before 1619 to the rectory: the appellant also in general proved the truth of the above historical narration, and that there was no such field as Marsh Baldon field, but that all the tithes in question arose out of Baldon field, and no possibility of perambulation without taking therein the whole circuit of such field.

The respondents gave no matters in proof relative to their own issue, or to counteract the appellant's evidence, proving only that at this time there were two churches in Baldon, and each of them were parochial churches, and two parishes, the one called Foot Baldon church and parish, the other Marsh Baldon church and parish; and that each of such churches had sacraments, burials, etc. and that the respondent Lane, as lady of the manor of Marsh Baldon, had the advowson or right of presenting an incumbent to the parish church of Marsh Baldon, and did present Dr. Bacon; and that he had institution and induction.

On the 13th of December 1770, the cause was heard, when the Court was pleased