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The Judges who sat in Banc during this term were,




(In Error.)

ANDREWS v. DREVER and Others.

May 21.


HIS was an action of debt, brought in the Court of Mere nonKing's Bench by the Plaintiffs below against the payment of

tithes is no Defendant below, upon the stat. 2 & 3 Edw. 6. c. 13., answer to a for not setting out tithes.

claim of tithes VOL. II.

by a lay im. propriator.


I clash off in 314




The declaration stated that the Plaintiffs below were proprietors of the tithes of corn, grain, and hay, of certain lands in the parish of Prestbury, in the county of Chester, and that the Defendant below was occupier of the same lands. It then set forth the subtraction of the tithe by the Defendant, and claimed the treble value. There was a plea of nil debet, and a particular of demand, from which it appeared that the action was brought to recover the value, single or treble, of the tithe of about twenty acres of hay for six years, commencing with 1825, and amounting to 35l. 5s. in the whole.

The cause was tried at the summer assizes 1831, for the county of Chester, before Bolland B., when the Plaintiffs below obtained a verdict for 1051. 15s. being the treble of the amount specified in the particular of the demand, for which sum judgment was entered up accordingly.

At the trial a bill of exceptions was tendered to the learned Judge, which having been duly sealed, and error brought thereupon into the Court of Exchequer Chamber, the judgment of the Court below was there affirmed.

The Defendant below now brought his writ of error into Parliament for reversing both these judgments.

From the bill of exceptions, it appeared that the Plaintiffs below were the lay impropriators of tithes in the parish of Prestbury, but there was no evidence of tithes having ever been taken on or paid for or in respect of the lands occupied by the Defendant below in that parish; whereupon the learned Judge directed the jury that mere non-payment of tithe was no answer to a claim of the tithe by a lay impropriator ; that it was clear it was no answer to the claim even of a lay rector, and that the jury could not presume a grant from mere


non-payment of tithes. To this direction the counsel for the Defendant below excepted.



F. Pollock and J. Jervis for the Defendant below, dow contended, in substance, that as against a lay im-. propriator a grant or release of the tithe ought to be presumed from long continued non-payment, upon the acknowledged principle that a legal origin may be inferred from long undisputed enjoyment. The authorities which seem to bear out the proposition that no distinction exists in this respect between a lay and a spiritual rector, and that mere non-payment of tithes, however remotely carried back, furnishes no answer to the claim of either, when examined, will be found to rest on no sure foundation. They proceed on the assumption that the claim founded on non-payment, as evidencing a lost grant, is in substance and effect a claim of prescriptive exemption from tithe altogether, which it is admitted cannot prevail against either a spiritual rector or a lay impropriator; but the two cases are essentially distinct, the one being a claim which is inconsistent with the nature and origin of the property, the other being in no respect inconsistent with either, and being at the same time in strict accordance with the rules of law as applied to every other description of property having similar qualities.

Before the dissolution of monasteries, the property of the church could not be granted away from the church, and no layman could plead an entire exemption from the payment of tithe ; there could, therefore, be no prescriptive title in a layman, whether arising from grant or from release. But when, after the dissolution, a portion of the church property came into the hands of laymen, the nature and character of that property were altered; it acquired the qualities of layproperty generally, and became susceptible of every





modification of which lay property admitted. There
is nothing, therefore, unreasonable in the supposition
that the whole or a portion of the tithes of a rectory
may have been granted away either in perpetuity or
for a term; or, what is substantially the same pro-
position, that an individual proprietor of lands subject
to tithes, or the whole of such proprietors within a
given district, should have purchased, for an adequate
consideration, a release from the payment of the whole
or some particular species of tithe. In the contrary
doctrine, on the other hand, there is the anomaly, that
time, which gives stability to all other property, impairs
the security of this, by destroying the evidence of title
on which it is founded, without affording any equivalent
protection from the length of enjoyment.

That doctrine, so entirely at variance with the prin-
ciples of law, has been many times questioned and
condemned by high legal authorities; among others,
by Mr. Baron Clark in Fanshaw v. More (a), by
Lord Rosslyn in Rose v. Calland (6), by Mr. Baron
Wood in Meade v. Norbury (c), and by Lord Redesdale
in the same case carried upon appeal into the House
of Lords.

To which names may be added those of Lord Talbot and Lord Hardwick, who are stated by Lord Eldon, as reported in the case of Berney v. Harvey (d), to have struggled, though ineffectually, against the doctrine.

The Attorney General and Temple, for the Plaintiffs below, relied on the adjudged rule of law as hitherto acted upon in the courts of law and equity, and supported by a long and uniform current of authority; and

(a) 2 Eagle & Young's Tithe Cases, 72.

(6) 2 Eagle & Young, 485.

(c) 3 Eagle & Young, 746.
(d) 2 Eagle & Young, 385.


The Judges (a) being requested to give their opinion on the following question,

Whether the mere non-payment of tithes is a sufficient answer to a claim of tithes made by a lay impropriator,



TINDAL C. J. said, I have to state to your Lordships the unanimous opinion of my learned brothers and myself, that the mere non-payment of tithes is not a sufficient answer to a claim of tithes made by a lay impropriator. That there can be no prescription in non decimando against a lay impropriator is a principle of law so thoroughly settled that it can admit of no doubt. The only legal ground, therefore, on which the non-pernancy of tithes can be set up as an answer to a claim of tithes is, that it affords the presumption of a grant of tithes made by the lay impropriator to the terre-tenant. So far as the authorities have been brought before your Lordships, not a single instance can be found in which there has been a presumption of a grant from the lay rector where there has not been some positive evidence, something more than the mere non-perception of tithes from all time,- as the foundation of such a presumption. The course of authorities is uniform in this respect, so as to render it unnecessary for us to enter into that discussion. But the question put by your Lordships is comprised in terms merely negative, that there has been no perception of tithes by the lay rector at any period; no positive or affirmative ground is suggested; no separation of any one species of tithes from the rest; no description, in any way, of the deed which forms the muniment of the title to the land by which the land itself is stated to be tithe free; no instance suggested in which the tithes have been treated as property by the owner of

(a) Present, Tindal C. J., teson, Williams, Coleridge Js., Park, Gaselee, Littledale, Pat. Parke, Bolland, and Gurney Bs.

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