S

CASE.

OME time about the year 1680, feveral of the land-owners

in the parish of W. purchased to them and their heirs, ALL the tithe of corn, grain, hay, flax, hemp, wool and lambs, and all other tithes whatsoever, as well great as fmall; and all other Eafter-rolls, payments and duties whatsoever; arifing, growing, happening or increafing, or to arife, grow, happen or increase, in or upon their feveral ancient freehold eftates therein particularly fpecified, and alfo in and upon the commons and wafte-grounds to the fame refpectively belonging. It is not known of whom thefe particular tithes were purchafed, but 'tis fuppofed of fomebody that was feized. And the conveyances of them ran much in the above form.

20 & 21 Nov. 1696. D. M. then feized of all the tithes not before fold, by leafe and release, in confideration of 200 l. conveyed to I. B. ALL that meffuage in W. called the New Hall, cum pert. and all and fingular the glebe lands, and all manner of tithes, obventions, oblations and hereditaments to the rectory of W. belonging, arifing, happening, renewing or growing (except unto the faid D. M. and his heirs, ALL fuch tithes, duties and offerings, belonging to the faid rectory, as are commonly called Eafter-roll and furplice fees, and the prefentation and election of a minifter or curate to the church of W. aforefaid.) TO HOLD to faid I. B. his heirs and affigns for ever, under the yearly rent of 51. payable half-yearly to faid D. M. with a power of diftrefs for recovery of the fame. D. M. covenants that the premiffes are free from incumbrances (except therein mentioned.)

I. B. who was grandfather to Mr. T. is dead, and he is now become feized of all the tithes conveyed to I. B. as above.

The parish of W. confifted of, till lately, feveral ancient houfes and inclosed lands, of feveral cottages, and about 600 acres of common or wafte ground, whereon the freeholders had right of common; but the foil was in the lord of the manor; and the freeholders being minded to have the commons inclofed, applied to the lord for his confent; and a proportion of the cottages and commons was set out to him for his right, and the remainder divided among the freeholders, in proportion to their eftates; and in the year the commons were divided, and feveral freeholders in that year in clofed and improved their fhares; and others then inclofed, but did not improve till a year or two afterwards.

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Query.

Query. Is not Mr. T under the conveyances made to Mr. B. as well entitled to the tithes of fuch parts of the commons así were allotted to the other fons who have purchased the tithes of their eftates? And fhould thefe tithes commence payable: from leven years after the inclosure made, or from seven years after the first improvement, or when otherwife?

And as feveral freeholders refuse to render him any tithes of fuch part of the common as were fet out to them in respect of the eftates of which they have purchafed the tithes, in what court and manner, is it beft and most adviseable for Mr. T. to proceed for the recovery of the fame? Or must the landlords or tenants, or both, be made parties in such suit ?

Opinion. As the feveral purchasers have purchafed all the tithes arifing upon their feveral farms, and particularly upon the commons and wastes, I think that in equity, the wafte lands fubftituted in the place of the commons, fhould not pay tithes for the profits of the commons, as commons are gone, and lands put in the place of them, fo that it would be contrary to equity to make the purchafers pay for the tithes of the commons a valuable confideration, and yet to make them in effect pay all the tithes of the commons in kind to the impropriator; perhaps at law it may be otherwife, but of this I doubt. As to the other lands appropriated to the owners of the eftates, they will, I think, be liable to tithes; but I think the seven years exemption ought to commence from the time of the improvement, and not from the time of the inclofure. The words of the act are, "That where lands fhall be improved, they fhall from thenceforth, after seven years after fuch improvements, pay tithes ;" So that the payment fhould, I think, commence from the end of feven years after the improvements, and not after the inclosure.

September 28, 1751.

R. Wilbraham.

CASE.

G. being feized in fee of a real estate, by indentures of leafe

E. and releafe, dated on or about September laft, grants and conveys the fame to A. E. and his heirs, fubject to a provifo, to be void on payment of 1100l. and intereft at a certain day therein mentioned, which is yet to come; and having the right or equity of redemption to faid premiffes, by his will, dated 13 November, 1758, expreffes it to be his will and defire, that all his juft debts that he fhould owe at the time of his decease, should be duly paid by his

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executrix,

executrix therein named, and then gives, devifes and bequeaths all his real and perfonal eftate, which was not then by any fettlement or other writing settled upon his wife, and which he purchased fince his intermarriage (except as therein mentioned) unto his wife E. her heirs, executors and adminiftrators, for her to difpofe of as the fhould think proper, by any deed, will or other writing, fubject to the payment of his debts as aforefaid; and appoints his faid wife executrix, and foon after died,

Teftator, at the time of his decease, was indebted to feyeral perfons upon bonds in feveral fums, amounting to 2000 or upwards; and it is computed that his real and personal affets will not be fufficient to fatisfy the said debt on mortgage and the faid bonds.

He alfo died indebted to several other perfons, to the amount of 600. or upwards, upon fimple contracts.

Mrs. G. the executrix has renounced her right to the probate and execution of the faid will, and thereupon administration of the goods, chattels and credits of the teftator, with the will annexed, was granted by the confiftorial court of the bishop of L. and C, to his brother I. G.

Query. Whether the money arifing by fale of the teftator's real eftate, ought to be applied by the devisee in discharge only of the teftator's debts arifing upon specialties, in cafe fuch debts fhall exhauft the whole; or whether, as equitable affets, it ought to be applied in difcharge of the teftator's debts in general, as well thofe owing on fimple contract as by fpecialties, without preference to the fpecialty creditors? will it be neceffary for the devifee to have the directions of a court of equity, as to the application of the money raised by fale of faid eftates?

Or

Opinion. I am of opinion, that the specialty debts are not to have preference of the fimple contract debts, but all must be paid. pari paffu: at law, the devifee of lands defeated the specialty creditors, who would only charge the heir in respect of real affets defcended to him, which descent was broke by the devife. The ftat. 3 & 4 W. & M. indeed, has made fuch devifes in general fraudulent against the creditors, and given them an action against the heir and devifee; but it still allows devifees for payment of debts, and the conveyance in that land fo devised is become equitable affets, and must be diftributed amongst creditors of all forts, (except by judgment or mortgage) rateably and in proportion.

Lincoln's Inn, February 16, 1759.

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Geo. Perrott

CASE