The CASE of Ewelm Hospital, Appellants, in Relation to Wayhil-Fair, against the Corporation of Andover.

THAT William De La Pool, Duke of Suffolk, being heretofore seized of the Mannor of Ramridge in Hampshire, did in King Henry the Sixth's time, by License Found the Hospital of Ewelm in Oxfordshire, which he appointed to consist of a Master, School-Master, and Thirteen poor Men, and Endowed it with the said Mannor of Ramridge, and other Lands, reserving only to himself the Nomination of the said Master, &c.

That Wayhil-Fair (being a Fair by Prescription) has been held time out of mind about Michaelmas-Day on part of the said Mannor called Ramridge-Down, and some part of it on a place called Blissomer-Hall-Acre, and the rest of the Fair on the Glebe of the Rectory of Wayhil, the Advowson whereof was given to Queens-College, Oxon by King Charles the First, and the Incumbents thereof have ever since the Twenty Sixth of Henry the Eighth, paid Forty Shillings to the Crown in the First-Fruits for the casual Profits of Standing of the Fair, which of late Years have been worth to the Incumbent Sixty Pounds a Year.

That ever since the Hospital had the Mannor, they or their Tenants have yearly received about One Hundred and Twenty Pounds for the Pickage and Stallage for Stalls, Booths, Penns and Hurdles for Sheep in the said Fair, which has been the chief Support of the Hospital by Fines, on granting Leases and great Rents.

That the Corporation of Andover, observing that no Toll or Show-Money was paid for Goods, Cattle, or Sheep sold therein, did in the One and Fortieth Year of Queen Elizabeth procure a Grant to them of the Fair at Wayhil, with a Court of Pye-Powder, and License to take Toll, Show-Money, and other usual Perquisites of a Fair, and they got inserted in their Grant likewise the Profits of Pickage and Stallage.

That after this Grant the Fair was always held in the same place as formerly, and the Corporation of Andover did never pretend to any thing more than to the Care and Government of the Fair, and the Toll and the above-mentioned Perquisites.

But the Pickage and Stallage was always paid to the Hospital or their Tenants for breaking the Ground, &c. as Owners of the Soil, the Corporation having no Land there, whereby to have any such Pickage and Stallage.

That the Corporation of Andover, observing the Advantages of Pickage and Stallage to be so considerable, did by their Interest in 1683. procure a New Charter, (on the Surrender of their former for that purpose) and thereby got a Clause surreptitiously added, (not in their old Charter) to hold the Fair on any part of Wayhil which they could procure, and as they should appoint; and in pursuance of it, did keep the Fair on Chalderton-Lanes in the Parish of Amport, and not on Wayhil.

That William Drake Esq; being Tenant of the said Mannor, having setled it on Mr. Goddard in Trust for his Wife for her Joynture, in Consideration of a very Con­siderable Portion he had with her, this very Hospital-Lease of the Mannor of Ramridge, and Profits of Pickage and Stallage of this Fair, having from the Family of the Noyse (from whom Mr. Drake is descended) been ever since King Henry the Eighth's time enjoyed by them.

Mr. Drake and his Wife, and Mr. Goddard, did prefer their Bill in Chancery to quiet them in the ancient Usage of the Fair, and to hinder the Corporation from Remo­ving the Fair to any other place; and the Corporation insisting, That they being Lords of the Fair, and by their Grant had a Right to take Pickage and Stallage, and a liberty to appoint the Fair in what Place they pleased; The Chancery, after hearing the Cause, (wherein 'twas proved unquestionably the Hospital and their Tenants Right to have the Fair held on the old Place) did at the Corporations Request, direct a Tryal at Law for the Ascertaining it; and at Winchester Assizes 1683, a Verdict passed for the Right of the Hospital, but the Corporation obtained a new Tryal at the Exchequer Bar, by a special Jury of Hampshire Gentlemen, and there it was found too for the Hospital, and Mr. Drake (in Right of the Hospital) had thereupon the Injunction of the Court for to quiet their Possession therein, and till the late King James's time they received the Pickage and Stallage, though the Corporation brought their Quo Warranto.

That the Corporation did afterwards bring on the Cause again before the Lord Chancellor Jefferies, (who had been a little before incensed against Mrs. Drake for some Words she spoke) notwithstanding the two Verdicts, and the Locality of the Action, the Lord Jefferies did direct it to be Tryed again at the Kings-Bench Bar, before the Lord Chief Justice Wright, by a Middlesex Jury, and there notwithstanding a full Evidence, and particularly an ancient Presentment Recorded in the Third year of King Henry the Eighth, that Thomas Noyse, then Tenant of the said Mannor, and his Predecessors, time out of mind, had the Right to the Pickage and Stallage, and the place of the Fair, set out particularly, that there could not be the least doubt of it; And notwithstanding there was at the Tryal likewise produced an ancient Almanack made in the Year 1570, (which was in time long before Queen Elizabeth's Grant) which mentioned Wayhill to be then a principal Fair; and the place and usage proved by above twenty old Witnesses, yet (notwithstanding these clear Evidences) by Chief Justice Wright's Direction, the Jury gave a Verdict for the Corpora­tion, and the Lord Chancellor Jefferies did Order, That Mr. Drake, the Hospitals Tenant should account for the Three Years preceding Profits of Pickage and Stal­lage to the Corporation, (notwithstanding they did not pretend any Right to the Soil where the Fair those Years was held) without which Right no Man can in Law or Reason pretend to Pickage or Stallage; but nevertheless by compulsion, the said three Years Profits were paid.

That since Their Majesties Accession to the present Government, the Hospital, and Mr. Drake, did bring their Bill of Review against the Corporation; and the Lord, Commissioners of the Great Seal heard the Cause, and directed it to be Tryed again by a Jury of Hampshire Gentlemen at the Kings Bench Bar; and after a long Evi­dence, a Verdict passed for the Hospital, viz. That the Corporation had Right to hold the Fair on the Hospital Down Lands, parcel of the Mannor of Ramridge, and on the Glebe Lands of the Rectory of Wayhill, and Blissomer-Hall-Acre, but had no Right or Power to have, or keep, the Fair on any other place at Wayhill at their Pleasure.

That on the 22d of May last, the Lords Commissoners on the return of that Verdict, did declare themselves fully satisfied therewith; and did Decree an Injunction, That the Corporation should not hold, or keep the Fair on any other places than in the Verdict, and ordered the Corporation to repay the Money back with Interest that the Lord Chancellor Jefferies had Decreed Mr. Drake to pay, (which plainly shews the Sentiments of the Court then were, That the Fair should be held in the same Places as formerly) and in pursuance of that Order, the Corporation paid back the Money with Interest accordingly.

That in pursuance of this Decree, Mr. Drake the Hospital Tenant, in September last, did provide Penns and Hurdles for Sheep, and erected several Booths on the Hospital Lands, called Ramridge-Down, and laid out Ground for to fasten the Hurdles, and to make Penns for Sheep; and to set Booths and Stalls on the Down, in the same Places as formerly, and did not question but to Receive the benefit thereof on Michaelmass Fair following.

But the Corporation laying claim to the use of the Glebe-land, by vertue of certain Articles made in the Lord Jeffeies Time, and having lately agreed with the Owner of Blissomerhall-Acre, for a small Sum, did appoint the empty Waggons, the Horse-Fair, and other unprofitable things to be set on Mr. Drakes, the Hospital-Ground, of Rambridge-Down; but the Booths and Stalls for Chapmen, the Penns for Sheep, and other beneficial things, (the greatest part whereof were heretofore set on the Hospital Ground) they appointed to be set on the Glebe and Blissomer-Hall-Acre, and several other Lands whereon no part of the Fair ever stood before, where­by the Corporation has got all the Profit of the Fair; which plainly eludes the Verdict and the Decree: And Mr. Drake, the Hospital-Tenant, who formerly made an Hundred and Twenty Pounds a Year by the Pickage and Stallage, did not, last Michaelmas-Fair make any think at all.

That Mr. Drake, in pursuance of the Decree, as he thought, did appoint Servants to Erect Booths and fasten Penns on the Hospital-Ground, against the Time of the Fair, and the Corporation served them with the Decree of the Chancery, which the Servants (supposing the right of their side) unknown to Mr. Drake, used some disrespectful words to the Persons that served the Process, and of the Commissioners of the Great Seal; whereupon the Corporation, by Petition, on the 15th of Sept. last, informed the Lords Commissioners of Mr. Drakes setting up Penns in other places than the Corporation appointed; and likewise of the Workmens contempt of the Process; whereupon Their Lordships, on the Two and Twentieth of the same September last, in the first place did commit to the Fleet, the Workmen, for a supposed Contempt, and did order, That Mr. Drake, the Hospital-Tenant, should not set up any Pens or Booths on the Down-Lands, otherwise than as the Corpo­ration should appoint; so that Mr. Drake durst not Erect any Penns or Booths on the Hospitals own Ground, left the Lords Commissioners should construe it as a contempt and breach of their Order.

That Mr. Drake and the Hospital looking on this last Order to vary from, and to evade all the benefit of the Decree and Verdict, do therefore pray, That the said Order may be Reversed by the House of Lords; and that the Defendants may be enjoyned to hold the said Fair as they have held it formerly (even from the 41st of Queen Eliz. to the 1st Year of King James the Second) and on the same Places; And that your Petitioners may have the Privilege of setting up Booths, Stalls, and Penns for Sheep, and other things on the Down-Lands, and of receiving the Profits thereof as formerly; whereby the Rights of the Hospital, and Rectory of Wayhil will be preserved, and a great advantage will redound to a considerable part of the Nation, who resort to this Fair; and who, upon the removal of it from off the ancient Places, may be driven from it.

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