LAW PROCEEDINGS

RELATIVE TO THE CHURCH.

COURT OF KING'S BENCH, HILARY TERM. 1825.

CHATFIELD, (Clerk), v. BUSTON.

3 Barnwall and Cresswell's Report, p. 863.

(Of the Vicar's liability to be rated to the Poor in respect of a CornRent allotted to him in lieu of Tithes, under an Inclosure Act.)

By the Act for inclosing lands in the parish of Chateris in the Isle of Ely; reciting that it was convenient that certain Tithes of lands, gar dens, &c., liable to be paid in kind to the Vicar, should be abolished; and that in lieu thereof, an adequate compensation should be made to the Vicar by an annual Corn-Rent, it was enacted, that the Commissioners should make a valuation of such Tithes in manner prescribed by the Act, and should by their award ascertain and set forth what quantity of Wheat, at a certain average price, would be equal in value to the Vicar's Tithes and that there should be issuing and payable to the Vicar such several yearly Rents or Sums of Money, free and clear from all Rates, Taxes, and Deductions whatsoever, out of the said Lands, Gardens, &c., as should be equal in value to the quantity of wheat so to be ascertained.

In pursuance of this Act, a Corn-Rent was duly ascertained and awarded by the Commissioners to the Vicar in lieu of his Tithes, in respect of which Rent, the Plaintiff, as Vicar of Chatteris was afterwards rated and assessed to the poor to the amount of 761. 3s. 9d., which he refused to pay, on the ground that he was exempt under the provisions of the Inclosure Act. The Defendant, however, as Overseer of the Poor, distrained upon the Plaintiff's goods for the amount of the Rate; and in consequence, brought this Action of Replevin, in order to try the question of his liability.

On the part of the Overseer, it was insisted that the Vicar was liable, because it did not appear to have been the intention of the legislature to place him in a better situation than he was before; nor to repeal the Statute of 43 Elizabeth Chap. 2., by virtue of which it has been decided, that the Rate is not upon the Tithe itself, but on the Parson in respect of the Tithe; and therefore, that it must now be

on him in respect of that which he receives in lieu of Tithe. It was also further insisted that the words in the Statute, "free and clear from all rates, taxes, and deductions," meant deductions payable in the first instance by the Tenant of the lands; as for example, the Land-Tax, for which the Vicar would be liable to the Tenant but for this exemption. And a case was cited in which the court held, that where a Parson suffers a tenant to retain his Tithes, he is nevertheless liable to the Poor-rate and so, also, where there is a composition real, or modus.

The Vicar defended himself on the ground that the Act operated as a Lease of the Tithes; and that a Parson who makes a Lease of his Tithes, ceases to be rateable in respect of them,-although it is otherwise, where he merely by parol allows the Tenant of the Land to retain the Tithes; and the words of exemption in the Statute were strongly relied upon.

The Defendant's Counsel, in reply, urged that it did not appear that the Commissioners took the exemption from Rates into consideration, in settling the Corn-Rent, and that it could not be assumed that they did so; and that the words "free and clear of all Rates and Taxes," obviously could not be construed in their largest sense, because they would not have exempted the Vicar from Property-Tax had that now existed.

The Court were of opinion, that the words of exemption in the Act relieved the Vicar from liability to the rates in question; observing, in answer to the arguments of the Defendant's Counsel, that the words of the Act could not be confined to rates and taxes payable by the Tenant, because no rates appeared to be payable by him, nor any other Taxes than the Land-Tax.-And they gave judgment for the Plaintiff, accordingly.

COURT OF COMMON, PLEAS, EASTER-TERM, 1825.
COLLIER, v. JACOB.

3 Bingham's Reports, 106.

(As to the proper mode of Tithing Wheat.)

APPLICATION was made to the Court to grant a New Trial of this Action, which was brought against the Defendant for improperly setting out the Tithe of Wheat, and tried at the last preceding Bury, Assizes, before Mr. Justice Gaselee.

It was sworn by witnesses at the Trial, that the Plaintiff had at a Vestry agreed that the Tithes were to be taken in the following manner, viz. that the Sheaves were to be set up in Shocks of ten each, and the Plaintiff was to have one Sheaf out of each Shock, taken by the Defendant at varying intervals; as, the first Sheaf in the first Shock,

the second in the second shock, the third in the third shock, and so on so that out of the sheaves in the field he was to take the 1st, the 12th, the 23d, &c. And the Judge charged the Jury that, if they believed the Plaintiff had made this agreement, and that the Defendant had in consequence taken the trouble to set up shocks, which he would not otherwise have done, they ought to find a verdict for the Defendant -which they did.

The grounds upon which a new trial was now applied for were, that the verdict had been given against the weight of evidence; that this mode of tithing was illegal, and likely to lead to a fraud upon the Parson; and that, as the Parson had no right to select any particular sheaf, therefore, it could not be allowed to the farmer to do so.

Lord Chief Justice Best. "Though I might have disbelieved witnesses who stated, that a man had made an agreement so prejudicial to his own interests as this must have been to the interest of the Plaintiff, yet the Jury have believed them, and have confirmed the existence of the agreement, in which I think, in the way it was put to the Jury by my brother Gaselee, there was nothing illegal, although the mode of tithing adopted was more likely to lead to fraud than any I ever heard

of."

Mr. Justice Burrough. "The legal mode of tithing wheat is by the sheaf; but it is also very common, especially in the West of England, to tithe it by the shock, an agreement to which effect has here been given by the Jury, without any imputation of fraud. The verdict, therefore, ought not to be disturbed."

Mr. Justice Gaselee, concurring, and adding, that no fraud was practised;-The new trial was refused.

COURT OF COMMON PLEAS, EASTER Term, 1824.
LANCHESTER V. TRICKER.

8 Moore's Reports, 20.

(Of the Liability of Parishioners of pay for Repairs of the Church, ordered by them in Vestry.)

The Plaintiff and Defendents were Churchwardens of the Parish of St. James, in the borough of Bury St. Edmonds, in the year 1811, and the tower of the Church requiring repair, they summoned a meeting of the Inhabitants in Vestry, which was held in July, in that year, when it was ordered that the Plaintiff and Defendant, as such Churchwardens, should be authorized to put a new roof on the Tower; which order, or resolution, was signed by them and twenty-four other parishioners. At a subsequent Vestry-meeting, a plan of the repairs was exhibited and approved by the Churchwardens, and a majority of the other Parishioners present, (namely fifteen) who resolved that a particular

person should put a new roof on the tower, according to the model, to be valued by two builders at its completion, and that the Churchwardens should be requested to employ competent persons to estimate the injury done to the Tower, and to employ other assistants to repair it. Under the sanction of these resolutions the Churchwardens employed several persons to do the repairs; and, when completed, and the expences ascertained, a vestry meeting of the Parish was held in January, 1812, at which it was ordered that a rate should be made to reimburse the Churchwardens the monies they had expended in repairing the Church, and in other incidents to their office, amounting to 8071. 14s. which order was signed by the Plaintiff and several other of the Parishioners.

The rate being afterwards made was resisted by the Defendant and others, and eventually quashed on appeal. The Plaintiff was afterwards sued by the persons who had done the repairs, whom he was obliged to pay; and then filed his bill in Chancery, praying that an account might be taken of the sums paid by him, and to which he was liable for the repairs, and that a rate might be made to reimburse him. This, however, was refused, with costs, on the ground that a Court of Equity could not decree a rate to be made to reimburse a former Churchwarden monies laid out by him whilst in office, in pursuance of a Vestry Order, as that would be to shift the burthen from the Parishioners at the time being to future Parishioners. The Plaintiff then brought the present action against the Defendant as his co-Churchwarden, for the amount of a moiety of the bills so paid by him for the repairs, and at the trial before Mr. Baron Garrow at the assízes for Suffolk, a verdict was found for the Plaintiff.

The Defendant resisted the action, on the ground that all the other parishioners who attended the vestry, and ordered the repairs, should have been made Defendants with him, as liable to contribute their shares of the expences incurred; and, on the same ground, he now applied for

a new trial.

The Court, however, said, that if the doctrine contended for were sanctioned, it would have the effect of rendering every Parishioner liable; in which case it would be necessary that all should be joined in the action. The persons who attended and signed the Orders of Vestry acted merely as vestry-men, without any intention to render themselves individually liable: and as the Plaintiff and Defendant ordered these repairs jointly in their character of Churchwardens, they had no legal demand on the Parishioners collectively, but were themselves jointly liable to pay for them. The Court, therefore, refused the application for a new trial.

COURT OF EXCHEQUER, SITTINGS AFTER MICHAELMAS TERM *, 1821.

BOULTON (Clerk) v. RICHARDS ANd Booth.
9 Price's Reports, 671.

(Appointment of Tithes between a Rector and a Portionist.) THIS was a very singular and embarrassing case, and one to which the late Lord Chief Baron Richards expressed himself as having given as much, or more consideration, than he had ever given to any other, without being able to come to a satisfactory decision;—and ultimately, felt obliged to recommend a compromise; and that the parties would agree to choose among themselves their own Chancellor, as the best mode of terminating the matter.

The facts briefly were, that the Plaintiff was the Rector of the Rectory of Glendon, in Northamptonshire; but neither he nor his predecessors appeared to have ever received any tithes, but only ten pounds a year. The defendant, Booth, claimed to be the Impropriate Rector, entitled to the manor, rectory, and advowson of the Vicarage of Glendon, and to the tithes thereof in fee. And it appeared that he, and those under whom he claimed, had, for the last 280 years, been in perception of the whole of the tithes, deriving their title by grant from the Crown, subsequent to the dissolution of monasteries, (30 Hen. VIII.) and the tithes in question having formerly belonged to the monastery, or abbey of Pipewell (one of the privileged order of Cistertians). There was no church-yard or burying-ground in Glendon; but there was a small room in the mansion-house of the defendant, Booth, commonly called the Chapel, in which divine service had occasionally been performed by the plaintiff and his predecessor for twentyfive years past, at which various families attended, though the only entrance to the chapel was through Mr. Booth's house. Marriages and christenings had occasionally been solemnized there, but, as it was alleged, by permission of Defendant and his ancestors; and parochial offices had been served in the parish. The Church of the adjoining parish of Rushton, was generally resorted to by the Defendants and the other inhabitants of Glendon. The Defendant Booth, and his predecessors, had presented to the Rectory, as a Rectory, for upwards of 200 years, and there appeared to have been two presentations by the Crown, on lapse. By Pope Nicholas's Taxation, the Ecclesia or Church of Glendon, (the term Ecclesia being considered as signifying a Rectory) was valued at six marks and a half, or 4l. 6s. 8d. By the Ecclesiastical Survey (of Hen. VIII.) the value of the profits arising from the Rectory, let to farm by the year, was stated then to be 87. 6s. 9 d. per annum; and by the Parliamentary Survey, the possessions of Pipewell Abbey were stated to consist of (inter alia) a portion of the tithes of the Rectors of Glendon, of the value of 4l. 6s. 8d. per

*The Report of this case, though decided so long ago, is only now recently pubMished.