The Liverpool Standard and General Commercial Advertiser.
Liverpool, Merseyside, England, 1848-09-05 00:00:00

SOUTH LANCASHIRE SUMMER ASSIZES

CROWN COURT.—TIIESDAY.
This morning Mr. Justice CRESSWELL sentenced John
Flyn, James Downey, James Mooney, Owen Gunn, and
Edward Birch, to fifteen months' imprisonment, for riot
and assault at Newton, near Manchester.

NISI PRIUS COURT.—TUESDAY,
(Before Mr. Justice ERLE.)

TITHE CASE

HESKETH AND OTHERS v. LYNN.—in this case, John
Hesketh and several other of the inhabitants of the parish
of Calbeck, in Cumberland, were plaintiffs, and the Rev.
James Lynn was the defendant. The issue was to try
whether there was an immemorial district in the parish,
called Swineside and Mosdale, and whether the sum of
18s. 10d. was to be paid the rector of the parish in lieu of
predial tithes, on every St. Andrew's Day.
Mr. MARTIN stated the case. The plaintiffs were the
inhabitants of a district called Swineside and Mosdale, in
the county of Cumberland ; the defendant was the rector
of the parish since 1814 ; and the two questions to be
decided were as to the existence, and also as to the tithes,
of the district. This was the fifth case of a similar kind
which had been tried on the northern circuit ; and the
rights of the parishioners, in the present case, had never
been questioned or disputed, under which property had
been bought and sold for centuries, and which had existed
without controversy until the defendant, the Rev. Dr.
Lynn, became the rector of the parish in 1814. He then
having thought proper to dispute them, the inhabitants
communicated to him that they were prepared to try the
question. Five years afterwards the defendant submit-
ted, but in the year 1833 he filed a bill in chancery; he
subsequently abandoned that bill, and now, after the
18s. 10d. had been paid regularly for the last thirty-four
years, he had thought proper to bring the whole question
to discussion. The first issue was this—was there such a
district as Swineside and Mosdale in the parish of Cal-
beck ; and with reference to this question, there would be
no real dispute, because it would be proved that the dis-
trict was an old one, which paid its own poor-rate and
highway-rate, and the only thing it had in common with
the rest of the parish was the payment of its church-rates.
The only question, therefore, was whether there was pay-
able by the occupiers of that district a modus of 18s. 10d.
only, in lieu of tithes, on St. Andrew's Day in each year.
The defence seemed to turn upon an ambiguous word in
an ancient document, called a terrier, which had been
drawn up and signed by the rector of the parish in 1749,
and which minutely set forth the items of income which
that rector was entitled to claim. " Small tithes" and
" great tithes " were both mentioned in this document ;
and after having explained at some length the difference
commonly understood to attach to both these desmiptions
of tithe, the learned counsel contended that the 18s. 10d.
mentioned in this document as payable by the district in
question covered everything grown upon the earth. When
the defendant was appointed rector, in 1814, the inhabi-
tants of the district went to the rectory on St. Andrew's
Day, and tendered their 18s. 10d. The defendant refused
to receive it then, and he also refused to receive it for
some years after; but they, having taken legal advice,
went annually to the Messrs. Foster's bank, in Carlisle,
and regularly deposited that amount of money. In 1818
the defendant thought proper to accept the money so
deposited in Foster's bank, the inhabitants saying at the
time, " We give you this sum, which is tithe for every-
thing off the land, and we are ready to have the case tried
if you dispute it." From 1818 to 1833, he continued an-
nually to receive the money, saying, every time the 18s.
10d. was put down, " I take this without prejudice ; "
but this observation was immaterial : the 18s. 10d. was
his right, and neither more nor less than his right, and
the jury, there was no doubt, would find that he was not
entitled to a single additional shilling.
A great number of witnesses, consisting of the oldest
inhabitants of the parish, were then examined in support
of the plaintiffs' case.
Mr. KNOWLES, in addressing the jury for the defence,
said that although his client came before them with all
the prejudices which men heaped on the sacred calling of
a clergyman of the Church of England, he hoped they
would do the same justice to a minister of the establish-
ment which they hoped to receive themselves. He con-
tended that the 18s. 10d. was not a payment for the dis-
trict, or from one inhabitant, but that it was a farm pay-
ment, and that there was no case upon the part of the
plaintiffs to go to the jury.
The learned JUDGE briefly summed up the case, and
gave it as his opinion that the terrier afforded strong
proof that the 18s. 10d. was one payment for the entire
district, in lieu of all that grew out of the ground.
The jury, at three o'clock (the case having lasted six
hours), found a verdict for the plaintiffs.
Several other issues were tried, arising out of the above
case