Cooper v Thorpe
| Jurisdiction | England & Wales |
| Judgment Date | 23 February 1818 |
| Date | 23 February 1818 |
| Court | High Court of Chancery |
English Reports Citation: 36 E.R. 311
HIGH COURT OF CHANCERY
cooper v. thorpe. Rolls. Feb. 18, '23, [1818]. Under an act for inclosing lands in the townships of A., #., and W., directing the commissioners to allot to the rector of the parish of W., in lieu of the tithes of the townships of S. and IV., so much of the lands to he enclosed in the township of .S'., and of the titheable parts of the township of W., as should, quantity, quality, and situatkm considered, contain or he equal in value to two-fifteenth parts of the titheable places thereof, and to make to the rector of W. and the vicar of B., in lieu of the tithes of a part of the lands in the townships of H. and A., to which the.y were entitled, a like allotment, equal to two-fifteenths of such lands, and declaring that after the enrolment of the award of the commissioners, all tithes arising within the lands enclosed should cease, an award by which the commissioners allotted to the rector of H7., " in lieu of the tithes of tf. and A.," lands more in quantity than two-fifteenths of the lands enclosed in S'. and A., but less than two-fifteenths of the lands enclosed in ti., A., and W., without any allotment in lieu of the tithes of W., is a bar to the claim of tithes in W. The award would not be vitiated by error in the allotment. The act having directed the commissioners, in estimating the proportion, to have regard to quality and situation, deficiency in quantity is not proof of error. By an act of parliament 9 (,'eo. .'!, c. 5L, " for dividing and enclosing certain open fields, lands, and grounds, in the several townships of Atterby, Snitterby, and Waddiny-ha,m, in the county of Lincoln," reciting among other things, that within the town-ship of Atterby, in the parish of Bishop Norton, and within the townships of Knitterby and Waddinyham, in the parish of Waddingham, were several open and uninclosed arable fields, common pastures, carrs, and waste grounds, or other open and common lands and grounds, distinguished by several names, containing in the whole [93] ;iW)() acres, or thereabout ; that Robert Garter, clerk, was rector of the parish of Waddinij-ham cum tinitterby, and as such seized of certain glebe lands in the said open fields and grounds, and entitled to all the tithes, great and small, arising within the tithr-able places of that parish, and also to the tithes arising upon certain parcels of laud lying dispersed in the open fields of Atterby ; and that George JoLland, clerk, was vicar of Bishop Norton, and as such seised of certain glebe lands in the said open fields and grounds, and entitled to all the rest of the tith s, great and small, arising within the titheable places of the township of Atterby, and also to the tithes arising upon certain parcels of land lying dispersed in the open fields of Snitterby; it was enacted, " that all the said open arable fields, common pastures, carrs^ and waste grounds, or other open and common grounds in the said several townships, should be divided, set out, and allotted," by certain commissioners, in manner after declared ; that such person as the commissioners should appoint should at or before a time fixed, take, and lay before the comissiomners, a survey and admeasurement of the lands directed to be inclosed within the townships of Atterby, Snitterby, and "Wadding-hum, and also of the ancient enclosed lands within the townships of Atterby anil Hnitterby, containing the number of acres, roods, and perches, in the said several townships, and of each proprietor's respective share thereof ; that the commissioners and surveyor should have power to enter upon, survey, and admeasure, the lands to be, enclosed within the townships of Atterby, tinitterby, and Waddinykam, ami the ancient inclosed lands in the townships of Atterby and Snitterby, but not any ancient enclosed lands in the township of Viaddingham : that in case any doubt should arise concerning the claim of any of the proprietors, or any dispute between them concerning their respective shares, rights, and interests in the lands to be enclosed, or the tithes arising upon the same, or the shares which they ought to have upon the intended division, the commissioners should, by [94] examination of \vit- 112 COOPER V. THORPE 1 SWANS. 95. nesses, upon oath, and upon other proper and sufficient evidence, inquiry, and satisfaction, hear and determine the same ; and such determination should be binding and conclusive to all parties. The act then directed the commissioners, within six months after such survey should have been laid before them, or as soon after as conveniently might be, in the first place to allot to Carter and his successors, rectors of the parish of Waddingham cum Snitterby, such parcels of the arable fields common pastures, and carrs, within the township of Snitterby (except the common pasture called the Carr side), directed to be enclosed, as should, in their judgment, be equal in value to, and a full satisfaction for the present glebe lands, of the rector within the last-mentioned lands to be enclosed ; and then to allot to Carter and his successors, rectors as aforesaid, such parcel or parcels of the residue of the same arable fields, common pastures, and carrs in Snitterby, and also of the titheabfe parts of the township of Waddingham, as should (quantity, quality, and situation considered) contain, or be equal in value to two-fifteenth parts of the titheable places'of the last-mentioned lands and grounds, in lieu of and as a full compensation for all the tithes, dues, duties, and payments whatsoever, belonging to the said rector, and arising within the same lands and grounds ; and further to allot to Carter and his successors (rectors as aforesaid) such parcel or parcels of the arable fields of Snitterby as the commissioners should (quantity, quality, and situation considered) adjudge to be equal in value to the tithes of the ancient inclosed lands in Snitterby ; and then to allot to Jolland and his successors, vicars of Bishop Norton, such parcels of the arable fields, common pastures, and carrs, within the township of Atterby, directed to be enclosed (except the common pasture called the Carr side), as should, in the judgment of the Commissioners, be equal in value to, and a full satisfaction for, the present glebe lands of the said vicar, in the last-mentioned [95] lands; and also to allot to Jalland and his successors, vicars as aforesaid, such parcels of the residue of the same arable fields, common pastures, and carrs in Atterby, as should (quantity, quality, and situation considered) contain, or be equal in value to, two-fifteenth parts of the same fields, and in lieu of, and as a compensation for, all the tithes, &c., whatsoever arising within the arable fields, common pastures, and carrs of Atterby (except as before cxcepted) ; and then to allot to Jolland, and his successors, vicars as aforesaid, such parcels of the last-mentioned arable fields as the commissioners should (quantity, quality, and situation considered) adjudge to be equal in value to the tithes of tho ancient enclosed lands in Atterby ; and further to allot to Carter (rector as aforesaid), and Jolland, (vicar as aforesaid), such parcels of the common pasture called the Carr side pasture, as (quantity, quality, and situation considered) should contain, or be equal in value to, two-fifteenth parts of the titheable grounds therein contained, in lieu of, and as a full compensation for, all tithes, &c., arising within the said Carr side pasture, and respectively belonging to the rector and vicar as aforesaid ; which last-mentioned two-fifteenth parts should be divided between the rector and vicar and their successors respectively, in such manner, and in such proportion as the commissioners should adjudge to be adequate in value to their respective shares and interests in the last-mentioned tithes ; and moreover to allot to the said rector and vicar, and their successors, such parcels of the residue of the arable fields of Atterby and Snitterby, as in the judgment of the commissioners should (quantity, quality, and situation considered) contain, or be equal in value to, two-fifteenth parts of the lands lying dispersed in the arable fields of Atterby and Snitterby, the tithes whereof respectively belonged to the said rector and vicar, in lieu of, and as a compensation for, the last-mentioned tithes ; which lands so to be allotted, as last expressed, should be divided between the rector and vicar, and their successors respectively, in such manner and proportion as the com-[96]-missioners should adjudge to be adequate in value to their respective shares and interests in the same tithes. After prescribing the mode of allotting the residue of the lands among the persons interested, the act directed, that the commissioners, in making the several allotments of such parts of the lands as were lying within the Carrs belonging to the respective townships, should have regard more especially to the quantity, quality, and species of the lands belonging to each proprietor or party interested therein, and to the state and condition of such lands with respect to drainage, at the time of making such allotments, by reason of the charge to which such allotments would be subject by the annual rate or assessment directed to be laid thereupon by an act of parliament. 1 SWANS. 97. COOPER V. THORPE 313 7 Cfeo. 3, for draining the lands lying within the level of Ancholme (of which the lands within the carrs are part), and the allotments so to be made to each proprietor or party interested in tlie carrs should contain, as near as the circumstances of the case would admit, the same quantity or proportion of dry land not liable to be flooded, and of such other species of land respectively as such proprietor or party interested was possessed of or entitled to at the time of making such allotments, and as near as might be, in the same state, quality, aud condition, so...
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Casamajor v Strode
...construction, the awards made [710] under them are absolutely void (Cooper v. [falker, 4 B. & Cress., 36 ; and see (Jooiicr v. Thorpe, 1 Swans., 92 ; The King v. The Inhabitants of IPashbrook, 4 B. & Cress., 732). It is not enough that the spirit of the Act has been pursued. There would be ......
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