On the 12th December 1766, The agent of 7. S. Efq; (the present owner of the eftate) delivered in an account of monies admitted to be due to the college from Holy Thursday 1747, to Holy Thursday 1758, by which there appears to be due to the college, the exact fum of 100%. And by an account taken from Holy Thursday 1758, to Holy Thursday 1766, the further fum of 581. 15 s. making together the fum of 1581. 155. The college of Winchefter calling on Mr. S. for payment of the faid 158. 15s. he objects thereto, unless the college will allow the land tax for the refpective fums due to them in each year, which the college have declined doing, as the fame has never been allowed by them, and as the payment of the 20l. a year was to be an entire fum out of the eftate: And the college conceive they ought to be allowed intereft for the money due to them from the end of every three years being the time appointed by E. H.'s will, for the fettling accounts and paying the balances. Query, Whether Mr. S. has a right to deduct the land tax for the money due from him to the college? Opinion. In general, eftates given to charities contribute to the land tax as well as other eftates; but as the land tax act says, that the act shall not extend to charge any scholars or exhibitions of Winchester, (amongst other colleges), or any reader, officer or rector, in refpect of any ftipend or exhibition; and as thefe exhibitions come within that defcription, I conceive, they are not liable to contribute to that tax. Query, As Mr. S. has not delivered to the college any accounts at the end of every three years, as directed by E. H.'s will, can the college compel him to pay intereft for all fuch fums of money as are due to them, from the end of every such three years? Opinion. I think there have not been fuch measures taken, as will entitle the college to intereft, I do not perceive that any recognizance has been given, or that the college has ever demanded any account. The other now comes from the owner of the eftate. The balance is uncertain, it does not appear what reasons have prevented the account before, or have produced it now: And I fee that neither the decree of 1674, nor that of 1678, has given intereft for the fums then due. July 28, 1767. William De Grey. CASE. INO CA S E. N the name of GOD Amen. I E. G. of Shepton Mallet, in the county of Somerset, stocking-maker, being firm of body and of per fect memory, DO ordain and make this my laft will and teftament, this 17th day of February, anno 1723, revoking all former wills and teftaments ever by me made or declared, viz. And first I commend my foul into the hands of the Almighty God my creator, and Jefus Chrift my redeemer, and my worldly eftate as followeth: And whereas, I am feized in fee fimple of a meuage and tenement, called Wookey's Tenement, in the parish aforefaid, which tenement I give and bequeath unto my fifter E. for her natural life, paying unto my heirs hereafter mentioned, the yearly rent of five shillings: And I give unto my fifter K. P. ten fhillings: Item, I give all my goods and chattels unto my bro ther R.'s children then living, equally to be divided betwixt them. Item. All my lends I am now poffeffed of in Shepton Mallet, I give, devife, and bequeath, unto my nephew S. G. whom I make whole and fole executor of this my laft will and teftament. Signed, fealed and delivered, } in the presence of us J. P. J. B. A. B. E. G.. The meffuage called Wookey's, devised to the teftator's fifter. E. is a fmall part of his eftate, and the other part confifts of lands, which E. G. the heir at law of the teftator claims, infifting on S.'s intereft to be only un eftate for life. Some part of the lands belong to the messuage called Wookey's, and other part are a diftinct property. Query, To whom does each, belong, (S. being dead,) whether to his heir at law, or to the teftator's filter? Opinion. I am of opinion, that S. took the lands in Shepton Mallet in fee fimple, with the reverfion in fee of Wookey's Tenement, expectant on E.'s eftate for life. The five filing rent is directed to be paid by E. to S. as the heir aftermentioned. This fhews that he meant the inheritance to S, and his heirs. He is alfo made whole and fole executor. Aug. 12, 1767. C. Yorke, CASE. C A S E. R. H. and J. B. Efq; as his furety gave their bond to Mr. V. for 700 l. or thereabouts. Μ' Mr. V afterwards became indebted to Mr. H. in the sum of 901, for goods fold and delivered. Mr. V. being indebted to Sir S. and Sir T. F. in a larger fum than the money fecured by the bond, affigned over this bond to them as a fecurity towards fatisfaction of their debt. Mr. V. lately became a bankrupt, and Sir S. and Sir T. F. are the affignces under the commiffion. You will obferve that V. is indebted as above to H. in 90%, but is indebted to Mr. B. the furety in no money whatfover. Query, Can Mr. H. fet off the 20l. towards payment of what was due on the faid bond, or must he and his furety the faid Mr. B. pay the faid Sir S. and Sir T. F. as affignees of the faid V. before he became a bankrupt, the whole of the money fecured by the bond, fo as to leave H. without any remedy as to the faid 901. otherwife than by proving his debt and taking his dividend under the faid commiffion? Opinion. If this be a joint and feveral bond, fo that B. alone may be compelled to pay the whole, in an action at law; I fee not how the set-off can avail him, without reforting to a court of equity, where, in as much as H. was the principal debtor, and Mr. B. only his furety, and the estate of V. and all claiming under him is indebted to H. in 90 l. I am of opinion an allowance would be made by way of fet-off for the 90!. fo due to H. and as power is given to the commiffioners by ftat. 5 Geo. 2. cap. 30. Sect. 28. to adjust and balance mutual accounts, I think that on Mr. H.'s application to them, difclofing the, above circumftances and offering to pay the balance, that they will order accordingly; or if they decline it, that the Lord Chancellor would grant relief in a fummary way by petition. Lincoln's Inn, June 30, 1767. Francis Filmer CASE M CAS E. ES Srs. H. S. and 7. S. have lately purchased in fee, ALL that manor or reputed manor of M. in the county of S. with the rights, members, and appurtenances thereof, together with all and fingular court-leets, court barons, view of frank-pledge, perquifites and profits of courts, waifes, eftrays, goods and chattels of felons and fugitives; and feveral meffuages, cottages, farms, lands, tenements, meadows, paftures, feedings, commons, common of pasture, ways, eafements, waters, watercourfes, trees and underwoods, with the ground and foil thereof, free-warrens, fish-ponds, fish-pools, fishing-places, royalties, franchifes, liberties, profits and rents of all forts, commodities, emoluments, hereditaments, and appurtenances whatfoever to the faid manor belonging. There has always been for time immemorial, annually paid at the court-leet held for the fame manor, certain rents called tything-waits which have been collected on the inhabitants of the feveral tythings lying within the faid manor, amounting to certain diftinct fums on each tything, by the tything-men thereof, and other rents called mɔɔrrents, time alfo immemorial collected and paid at the court-leet by a grafs-bayward out of of three the tythings belonging to the faid manor, for and in refpect of the rights of common, the cottagers and other the inhabitants within the fame manor ufed and enjoyed, which rents have been collected by the grafs-haywards, and paid to the lord or fteward, at the court-leets; and it has been alfo the immemorial cuftom of the tything-men, and the grass-haywards, to collect more out of the respective tythings than is due, claimed, or received, by the lord of the manor, part of which has been paid to the Sheriff's-tourn, and the refidue, (after-paying the lord his ufual rent), has been retained by the tithing-men; the lord of the manor no ways ever interfered in affeffing the quantum to be paid by each cottager or eftate, but has been always collected, according to an old lift by the tything-men, in respect to the tything-waits, and the grafs-haywards, in refpect to the moor-rents. Several eftates lying within the feveral tythings of the manor, As also the three tythings ufually paying the moor-rents have been fold off by feveral preceding lords in fee, difcharged from all incumbrances whatever, except annual fee-farm-rents. The faid Meffrs. H. S. and J. S. have fold off eftates in the fame manner; but these eftates fold off by these antient lords, have paid for a great number of years to the tything-men and grass-haywards their ufual and proportionable parts towards the faid rents, till within these two years, who now say, that by certain covenants in their title-deeds they are discharged from the fame. 16 R Query, Query, As thefe rents called tything-waits and moor-rents for the major part have been paid by the proprietors of the land fo fold off, according to their proportionable parts as assessed by the tything-men and grass-haywards towards these rents above twenty years laft paft, though discharged in the conveyances from all incumbrances except annual fee-farm-rents, as have alfo the owner of the estates fold off by the faid Meffrs. H. S. and 7. S. after the fame manner, will thofe eftates formerly fold off by the former lords, be chargeable and liable to pay their usual proportions, towards the faid rents, and will the other lands fold off by the faid Meffrs. H. S. and J. S. be also chargeable with their proportionable parts? If so, what proceeding at law would be moft advifeable to be taken to oblige them to pay the fame? Opinion. These payments called tything-waits, are I apprehend what is called the certum leta or common fine usually paid in many leets to the lord, and where they are regulated and apportioned according to the value of the eftates, and the proportions fo anciently adjusted and paid by the owners or occupiers of the respective tenements, I fee no reason why they may not be difcharged by the lord, upon alienation of the freehold of the tenements, or by release to the owners. For the payments are in idea of law, founded upon the expence the lord, in ancient times was at, in procuring the grant of the leet, and being regulated by the eftates, there is no reason why they may not be difcharged. The reafon holds much ftronger in respect of the moor-rents, which are payments for depafturing the cattle kept on the tenements on the wafte, and which the lord feems by fuch conveyances, to indulge the free use of, without any fee-farm rent. Therefore it feems to me, that the purchafers of the manor will have very little chance to recover thofe payments against fuch strong words in the conveyances, especially the late one, However as to thofe of long ftanding, where the payments have, notwithstanding fuch words in the conveyances been continued, it may be an argument of fome weight, that the continuation fhews that these payments were not meant to be extinguished, but on the other hand, I fear it will be very difficult to get over it. The ftrongest circumftance for the lord is, that part of these payments is rendered to the sheriff, but the answer to that is, that the lord might difcharge what was due to him, though not to the fheriff, fo that part may ftill be payable, though the other is discharged. As to the remedy (if thefe gentlemen are willing to bring the matter in queftion), it is not stated, whether there has been an ufage to diftrain, without which I think, at least for the tything |