Busby v Avgherino
| Jurisdiction | England & Wales |
| Judge | Lord Atkin,Lord Warrington of Clyffe,Viscount Sumner.,Lord Blanesburgh |
| Judgment Date | 11 May 1928 |
| Judgment citation (vLex) | [1928] UKHL J0511-1 |
| Court | House of Lords |
[1928] UKHL J0511-1
House of Lords
Viscount Sumner.
Lord Warrington of Clyffe.
Lord Atkin.
After hearing Counsel, as well on Monday the 27th and Tuesday the 28th, days of February last, as on Thursday the 1st day of March last, upon the Petition and Appeal of Henry Edwin Goodear Busby, of 58, Brixton Hill, in the County of London, and Frances Eleanor Emerson (Married Woman), of 10, Helix Gardens, Brixton Hill aforesaid, executors of Mary Busby, deceased, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 25th of March 1927, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied, or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of Agesilaus Th. Avgherino, Jones and Co. (London), Limited, Luigi Necchi, Harley and Mass, J. and D. Hamilton, Limited, and Asiatic Petroleum Company, Limited, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 25th day of March 1927, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Judgment of the Honourable Mr. Justice Tomlin, of the 25th day of November 1926, thereby Reversed, be, and the same is hereby, Restored: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellants, the Costs incurred by them in the Court of Appeal, and also the Costs incurred by them in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be and the same is hereby, remitted back to the Chancery Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.
My Lords,
The Plaintiffs, claiming as owners of the rectorial tithe payable in respect of No. 15, Great St. Helens, in the City of London, seek to recover from the Defendants, the occupiers of those premises, the payments enacted by 37 Henry VIII, c. 12, the London Tithes Act of 1545. There is no question as to their title. The nature of the rights conferred by the Act has been frequently discussed in the Courts. Though the payments prescribed by the Act are called tithes, the term is a misnomer. The Statute imposed the obligation upon occupiers of houses in the City to pay a sum based upon a rental in substitution for payments previously made by the citizens either voluntarily or in obedience to ecclesiastical decrees for the maintenance of the clergy. Possibly before the Act or its immediate predecessor, 27 Henry VIII, c. 21, such payments were civil obligations. They had existed for a long time. They took their source apparently in customary payments of 1/2d. for Sundays and Feast Days, and were patiently paid by city inhabitants until 13 Rich. II, when the then Archbishop of Canterbury made an explanation of the constitution and obtruded upon the citizens of London 22 days more than were usual, which caused a constant struggle on the part of the citizens and a perpetual agitation between the Ministers and citizens of London, the Court of Rome and in ecclesiastical courts. See the argument of Sir Thomas Coventry in Dunn v. Burrell and Goffe, 1617, Western Tithe Cases, at p. 77. It was to allay this agitation that the Act in question was passed. But as Selden says, Tithes, Preface, Ed. 1618, p. viii, the previous payments "could not properly be reputed among tithes neither in regard of their value nor in respect of their nature." He points out that in value they are more than tithe and in nature they are not gifts of increase, and concludes:
"What is called Tithes of Houses in London is rather called so only than is at all so."
We have only to deal with the Statute, and the reference to previous payments is only of historical interest except in so far as it throws some light on the exception in the Statute upon which the Defendants rely. The exception is contained in Clause 18, "Provided also and it is decreed that where less sum than after 16 1/2d. in the ten shilling rent or less sum than 2s. 9d. in the twenty shilling rent hath been accustomed to be paid for tithes that then in such places the said citizens and inhabitants shall pay but only after such rate as hath been accustomed." Two points may be mentioned that have been the subject of decision on this clause.
1. An accustomed payment does not mean a payment made in accordance with a custom that goes back to the time of legal memory. In Bennett v. Trepass (1719) Western 125, the Court of Exchequer held that if there were tithes by custom or agreement for eight years past they are within s. 18 of that Statute, and ordered an issue to be tried at law as to whether any sums less than 2s. 9d. in the 20s. rent had been accustomably paid by the Defendants. This decree was upheld on appeal in the House of Lords, 1722, Western 133. On the other hand Lord Eldon in Warden of St. Paul's v. Kettle (1813) Western, at p. 204, lays down that the construction is not that it must be a payment time out of mind, but if that payment has been usually made during such time as to have acquired in the Ecclesiastical Courts the character of a customary payment the Statute operates upon it. This would require payment for 40 years in order to become customary. It is unnecessary to decide which of the two opinions is right, for no proof is forthcoming in this case or in any other case as to actual payments before the Statute. The question is whether from facts proved to exist after the Statute a customary payment before the Statute should be inferred.
2. The second point is that though the clause appears to deal with customary payments in relation to places rather than individuals, yet the clause exists for the benefit of individuals who can prove such payments. Lord Eldon so holds in the passage above referred to:
"If these individuals can prove that before this Statute a sum of money was raised upon each house so long before as to have acquired the character of a customary payment, to so many houses as it can be applied to it is in law applicable, though there is no such general custom through the place or parish."
It is not irrelevant to this case to notice that the proof of a general usage in the parish will assist an individual parishioner to prove his own exemption.
The question in this case is whether the Defendants show that they are within the exception in Clause 18 of the decree, for I agree with the view expressed by Tomlin J. and the members of the Court of Appeal that the onus is on them. There is, however, no special privilege attached to the position of a tithe-owner that exacts a higher standard of proof from persons resisting his claims than in other cases. The question is whether there is evidence that reasonably satisfies the tribunal that the Defendants' allegations are true. It may be conceded that the mere fact that payments have not been demanded at all on analogy to cases of claims to tithes proper does not of itself afford a defence. And proof of payments less than the full statutory sum is in itself insufficient if the sums paid are so fluctuating in amount that they cannot lead to the inference that they were paid in pursuance of an obligation to pay what was before the Statute a customary payment. I doubt whether in all cases it would be necessary to prove that the customary payment was a definite fixed sum. It would appear from the authorities that the customary payment might be a fixed rate or poundage less than the statutory poundage. But it is for the Defendants to aver and prove the customary sum upon which they rely. In the present case the Defendants aver a customary payment of 19s. per annum, and that certain sum they have to prove. It is evident that the exemption would be of little value if it only applied to the occupiers of houses actually in existence at the date of the Statute in 1545. It is now well established that houses built on the site of houses which enjoyed the statutory exception are entitled to the exception. In Williamson v. Gosling (1762), Western 152, the Defendants had owned several old houses for which customary payments had been made, had pulled them down and built two new houses on the site. On a bill for tithes by the lay impropriator claiming the full statutory payment upon both houses, the Court decreed payment according to three of the customary payments, and decreed payment of the full amount on the ground where the house called the "Gentleman and Porter" alehouse once stood. On the latter site, it is reasonably plain, no customary payments had been applied, and the case so understood is approved by Lord Eldon in the Warden of St. Paul's v. Kettle (1813), Western, at p. 204. See also the judgment of Sir William Grant M.R. in the Antrobus v. East India Co. (1806), Western, at p. 229.
The Defendants therefore will succeed if they prove that for the premises which they now occupy, or for the premises formerly occupying the same site, a customary payment of 19s. per annum was payable at the date of the Statute. They can, of course, only prove this by showing facts in existence since that date which lead to the inference that such payments were made before that date. There is a volume of evidence in the case adduced by the Defendants, and in my opinion it leads irresistibly to the inference required by the Defendants. I will proceed to deal with it in...
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