The Appellant Joseph Eastmond by his Answer admitted, that he had Assets sufficient to answer the Plaintiff's Demands; and both of them admitted, that they and the Testator had fatted and depastured divers Oxen yearly upon their Lands in the said Parish, but said, that some of them were first used to the Plough, and afterwards fatted when turned off from the Plough.
The Court of Exchequer did thereupon, viz. May 26. 1696. decree Tithe Herbage to be paid for the Appellants and the Testator's Oxen and unprofitable Cattle not used for the Plough; and also for their Oxen and unprofitable Cattle used for the Plough, for and during the Time they were grazed and fatted in the Parish for Sale, after they were turned off from the Plough. And now it was insisted on in Favour of the Appeal, that the Decree was unjust; and then were quoted some Texts of Scripture about muzzling the Ox, &c. And also it was urged, That that Part of the Decree concerning Oxen once used to the Plough, was erroneous; and there were cited all the Cases in the Books for Exemption of Plough Cattle from Tithe Herbage, and that this was double Tithing: And it was insisted on, that the Reason of the Thing was against it in this Case, because the Agistment of these Cattle was necessary to sustain that Labour which promoted the Grain, of which Tithe was paid; that this Privilege extended to all such Oxen as ever had been used to the Plough; that the Exemption did continue after they were forborn to be used at the Plough; for there was the same Reason to continue the Exemption afterwards, as there could be to allow it during the Interval, when they do not draw the Plough. And for [193] these and other Reasons urged, 'twas prayed, That the Decree for Tithe, quoad such Cattle as ever had been used with the Plough, should be reversed.
On the other Side it was urged, That the said Decree is agreeable to the Law, and supported by many Resolutions in the Court of Exchequer, that there was a Reason for Tithe in this Case; because these Cattle, tho' formerly used to the Plough, they ceased now to belong to it, and consequently Tithes became due. That there's a Difference in the Nature of the Thing; for when they Feed in order to Labour, the Parson hath a Tenth of the Benefit produced thereby; but when they are fatted only for Sale, 'tis otherwise. That this was a settled and allowed Difference in the Exchequer; That while the Oxen are working, no Tithe shall be paid for their Feeding, because there are Tithes of other Things arising by the Labour of such Cattle; but when they do no Work, and are turned off to be fatted and are graz'd, there Tithes shall be paid for the Herbage which they Eat, they being no way beneficial to the Parson in any other Tithes: And many Cases in scacc' were cited to warrant this Distinction; and 'twas said, That none could be alledged to the contrary: Wherefore 'twas prayed, That the Decree might be affirmed; and it was affirmed.
[16 Lds. Jo. 321.]
Will of a Foreigner, and in a Foreign Language, how to construe it, and by what Rules.—Appeal from a Decree in Chancery; the Case was thus: Peter Lorin (Son of the Appellant) and Katherine de Mandoville came to an Agreement to marry, and that the longest Liver should take all, whether Issue or not: A publick Notary took and entred that Agreement in his Book, and both Peter and Katherine subscribed the same so entred; and then being written fair, they signed it again, and the now Appellant and other Relations subscribed it: They intermarried, Peter was kill'd in Flanders, and left Katherine with Child; afterwards, she being near her Time, thought fit to make her Will, which she wrote with her own Hand in French, in these Words,
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