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In the House of Lords.

EASTER VACATION, 5 WILL. IV.

1835.

ANDREWS v. DREVER and Others.

Thursday,

May 21st. THIS

was an action of debt, brought by the plaintiffs The mere nonbelow (the defendants in error) against the defendant tithes is not a below (the plaintiff in error), upon the statute 2 & 3 Ed- sufficient an.

swer to a claim ward 3, for not setting out tithe of hay. The declaration of tithes made

by a lay improstated that the plaintiffs below were proprietors of the priator. 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. The defendant pleaded nil debet. The plaintiffs' particular of demand stated 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 for the county of Chester, in the year 1831, before Mr. Baron Bolland, when a verdict was found for the plaintiffs below, for 1051. 158., being the treble value of the tithes mentioned in the particular, for which sum judgment was en

At the trial a bill of exceptions was tendered to the learned judge, and duly sealed, and error was

tered up.

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DREVER.

brought thereupon into the Exchequer Chamber, when the judgment of the court below was affirmed— Bayley v. Drever, 1 Ad. & E. 449, 3 N. & M. 885. The defendant below now brought a writ of error returnable in parliament.

The bill of exceptions set forth, that, in support of the plaintiffs' case, there were given in evidence-First, certain letters patent of Queen Elizabeth, dated the 19th November, 1579, granting to divers persons, one of whom was Thomas Leigh, amongst other things “ the tithes, portions, and oblations issuing &c. out of the vill, fields, parish, or hamlets of Prestbury, and also all the rectory and church of Prestbury (which said rectory and premises to the monastery of St. Werburg did theretofore belong and pertain), and all manors, glebes, tithes, obventions, &c. situate &c. in the vill, fields, parish, or hamlets of Prestbury or elsewhere in the county of Chester, belonging to the said rectory, or reputed as parcel thereof." Secondly a deed of partition dated the 1st October, 1586, whereby the other grantees conveyed to Thomas Leigh the said manor and church of Prestbury, with all its appurtenances. Thirdly—certain leases and counterparts of leases of tithes (comprehending every species of tithe and obvention) arising within the township of Woodford, in the parish of Prestbury (within which township the lands of the defendant in respect of which the tithe was claimed were situated), purporting to have been granted by different members of the family of Leigh for terms of years long since expired; the earliest of which bore date the 12th June, 1710, and the latest the 16th October, 1798, upon certain of which leases the receipt of rent was duly proved. Fourthly-similar leases of tithes arising in other townships of the same parish, from the 11th November, 1686, to the 16th of October, 1798, purporting to have been granted in like manner by the family of Leigh; as to some of which also payment of the rent reserved thereon was duly proved. The admission of these leases was objected

1835.

ANDREWS

DREVER.

to on the part of the defendant below: they were, however, received. The bill of exceptions then set forth the parol evidence given in the cause ; from which it appeared that the plaintiffs below were the lay impropriators of tithes in the township of Woodford, in the parish of Prestbury: but there was no evidence of tithe of hay having ever been received for or in respect of the land occupied by the defendant below in that township, with the exception of a payment of five shillings for a tithe of hay alleged to have been paid by the person who had occupied the farm before him, and which payment was made after the payment of tithe of hay had been disputed.

The learned judge told the jury, that mere nonpayment oft ithe was no answer to a claim of the tithe by a lay impropriator ; that it was clear it was no answer even to a claim of a lay rector; and that the jury could not presume a grant from mere nonpayment of tithes; that, from the evidence of the grant from the crown in 1579, and the evidence of modern enjoyment of tithes by them, the jury might presume in favour of the plaintiffs intermediate conveyances of the rectory between that time and the year 1686, the date of the first lease produced; that the perception of the tithe of corn by the plaintiffs was evidence of a title in the plaintiffs to the tithe of hay; that the tithe of hay followed that of corn, unless shewn to be severed by some grant or conveyance; and that the leases and counterparts of leases, as well of tithes within the township of Woodford as of tithes within other townships in the same parish, were good and admissible evidence for the purpose of rebutting the presumption of a grant, which it was contended on the part of the defendant arose from the nonpayment of the tithe of hay. To this direction the counsel for the defendant excepted.

Sir F. Pollock and Mr. John Jervis, for the defendants below.-As against a lay impropriator, a grant or release

1835.

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DREVER.

of the tithe may and ought to be presumed from long continued nonpayment, upon the acknowledged principle that a legal origin may be inferred from long undisputed enjoyment. Although there are 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 nonpayment of tithes, however remotely carried back, furnishes no answer to the claim of either, yet these authorities when examined will be found to rest on no sure foundation. They proceed on the assumption that the claim founded on nonpayment, 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 tithes. 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 lay property 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 heen granted away either in perpetuity or for a term; or, what is substantially the same proposition, that an individual proprietor of lands subject to tithes, or the whole of such proprietors within a given district, should for an

1835.

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v. DREVER.

adequate consideration have purchased a release from the payment of the whole or some particular species of title. In the contrary doctrine, on the other hand, there is this anomaly, namely, that time, which gives stability to every other description of 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 principles of law, and so destitute of equitable foundation, has many times been questioned and condemned by distinguished legal authorities ; among others, by Mr. Baron Clarke in Fanshaw v. More, 2 Eagle & Y. 72, by Lord Rosslyn in Rose v. Calland, 2 E. & Y. 485, by Mr. Baron Wood in Neade v. Norbury, 3 E. & Y. 746, and by Lord Redesdale in the same case on appeal to the House of Lords. Lord Talbot and Lord Hardwicke are also stated by Lord Eldon to have struggled, though ineffectually, against the doctrine-see Berney v. Harvey, 2 E. & Y. 385.

There was no evidence of title in the plaintiffs below to the tithe of hay. It does not appear in what character or by what right they claimed the tithe: the title to it was shewn to be, up to the year 1832, in the family of Leigh; and there was no proof that the plaintiffs were in any way connected with or derived any title from that family. The mere perception of the tithe of corn for a short period before the commencement of the action, furnishes no ground for inferring a title to the hay tithe, inasmuch as it was competent to the rector to make a lease of the tithe of corn only, retaining the rest to himself. It was consistent, therefore, with the case proved by the plaintiffs, that they might be lessees of the tithe of corn, without having any right to the tithe of hay.

If the presumption of a grant of nonpayment of tithe be held admissible, the leases and counterparts given in evidence by the plaintiffs below could not be received to re

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