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1835.

ANDREWS

0. DREVER.

but that presumption, because it is perfectly consistent to suppose a grant or release of the tithe to an individual proprietor of land, or to the proprietors generally of the lands comprised within a particular district, and that the rest of the lands in the same parish should still remain subject to the original burthen.

The Attorney General and Mr. Temple, for the plaintiffs below, relied upon the rule received both in the courts of law and of equity, warranted by a long and uniform series of decisions, that the mere nonpayment of tithes is no answer to a claim made by a lay impropriator.

The following question was submitted for the opinion of the judges (a):

“Whether the mere nonpayment of tithes is a sufficient answer to a claim of tithes made by a lay impropriator.”

Lord Chief Justice Tindal now delivered the opinion of the judges :

The unanimous opinion of my learned brothers and myself is, that the mere nonpayment of the 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

(a) The judges present at the argument were-Lord Chief Justice Tindal, Mr. Justice Park, Mr. Justice Littledale, Mr, Justice Gaselee,

Mr. Baron Parke, Mr. Baron Bolland, Mr. Justice Patteson, Mr. Baron Gurney, Mr. Justice Williams, and Mr. Justice Coleridge.

1835.

ANDREWS

DREVER.

presumption of a grant from the lay rector, where there has not been some positive evidence, something more than the mere nonperception 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 the land, either in family settlements or in conveyances from one hand to another, or in leases from the owners of the tithes: in all which cases there would have been a positive dealing with the tithes as a substantive property separate and distinct from the land, and in which the enjoyment of that property by the nonperception by the lay rector would have gone along, and have been consistent, with the documentary evidence. In these supposed cases, nothing would have been wanting but the production of the original grant of the tithes from the lay rector to the terre-tenant; and the want of such original grant might well be supplied by the presumption that it once existed, and was lost by time and accident, on the ordinary grounds on which such presumptions are made: but the presumption in this case, if made at all, must be grounded on the mere nonperception, and nothing else. We are, however, unable to see how far the presumption resting on such negative grounds alone can be distinguished, either in principle or effect, as a prescription in non decimando. In both cases, the evidence, and the only evidence, must be, the right of the rector on the general law of the land, the occupation of titheable land

1835.

ANDREWS

DREVER.

by the terre-tenant, and the nonperception of tithes arising from the land in the earliest times by the rector. The claim on the part of the land-owner is precisely the same, whether set up as a prescription in non decimando, or the presumption of a grant: it is in both cases a claim that the land is to be held free from the payment of tithes.

If therefore such a state of facts can be held to support the presumption contended for, it would necessarily follow that in every case the nonpayment of tithe would have the full effect of a prescription in non decimando, though such a prescription is admitted not to be valid at law. Upon these short grounds, we have come to the conclusion which I have already stated to your lordships.

Lord LYNDHURST and Lord BROUGHAM expressed their concurrence in the above opinion, and the judgment of the court below was accordingly affirmed.

Judgment affirmed.

9

kn the Exchequer Chamber.

EASTER VACATION, 5 WILL. IV.

1835.

some antient

Doe d. BARRETT v. KEMP.

Tuesday,

June 9th. THIS was was an action of ejectment, in which the question In ejectment,

the question was was whether a slip of land between some antient inclosures

whether a slip and the highway belonged to the owner of the adjoining of land between freehold, or to the lord of the manor. At the trial before inclosures and a

highway be Mr. Justice Littledale at the Summer Assizes at Norwich, longed to the in the year 1830, it appeared, that, in 1806, one Lingford joining land, or had inclosed a slip of waste land lying between the high to the lord of

the manor:road and an old inclosure in the parish of Gissing belong- Held, that acts

of ownership by ing to Lord Orford; that Lingford built thereon the two the lord (grants cottages to recover which this action was brought, and

close) over slips mortgaged the same to the father of the lessor of the plain- skirting the

same road, the tiff, who devised them to the latter. It further appeared continuity of that the highway was skirted on either side by slips of

broken by a waste land from the spot on which the cottages were bridge and some erected, for several hundred yards, up to a bridge, ments, were adwhere the old inclosures converged to the sides of the missible in eviroad, and the wastes terminated in a point; that, a few yards beyond the bridge, the old inclosures again receded, and the road was again skirted by waste land; that, with the exception of the inclosed land belonging to Lord Orford, between which and the high road the cottages in question were built, the old inclosed land on both sides of the road from the cottages

antient tene

1835.

Dor

d. BARRETT

KEMP.

to within a few yards of the bridge, belonged to the defendant, who was lord of the manor; and that beyond the bridge the old inclosed land on either side of the road belonged to different proprietors. The defendant proved various acts of ownership on the wastes by the road side from the cottages to the bridge, and proposed to call witnesses to prove like acts of ownership on wastes similarly situated in other parts of the manor. The learned judge refused to admit this evidence. A verdict having been found for the lessor of the plaintiff, a new trial was afterwards directed by the court of Common Pleas, on the ground that the evidence tendered had been improperly rejected. Upon the second trial, Lord Lyndhurst admitted the evidence that had on the former occasion been rejected. This evidence consisted of licenses granted by the defendant as lord of the manor, at a manor court, to persons of the names of Clarke, Bolton, and Gilbert, for the inclosure of land adjoining the same highway, but at the distance of about two miles from the locus in quo, and not adjoining the defendant's freehold; and also of licenses to other persons, named Hunt, Harrison, and Spurden, for the inclosure of wastes described generally as being waste lands within the manor.

A bill of exceptions to the reception of this evidence was tendered. A verdict having been found for the defendant, the bill of exceptions was brought by writ of error before the court of Exchequer Chamber, and was on a former day argued by

Sir W Follett, for the lessor of the plaintiff, and Mr. Andrews, for the defendant.

Cur. adv. vult.

Lord Chief Justice DENMAN now delivered the unanimous opinion of the court:

This is an ejectment brought to recover possession of two cottages in the parish of Gissing, in the county of

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