Croughton v Blake and Others
| Jurisdiction | England & Wales |
| Judgment Date | 17 November 1843 |
| Date | 17 November 1843 |
| Court | Exchequer |
English Reports Citation: 152 E.R. 1172
EXCH. OF PLEAS.
S. C. 13 L. J. Ex. 78; 8 Jur. 275.
1172 CROUOHTON V. BLAKE 12M.&W.20S. croltohtqn v. blake and otueks. Exch. of Pleas. Nov. 17, 184:5.-In order to render a document admissible in evidence, it is not necessary that it should come from the most proper place of custody; it is sufficient if it comes from a place where it may reasonably be expected to be found.-On the trial of a feigned issue, under 6 & 7 Will. 4, c. 71, s. 46, between the vicar of M. and the owners of the Linda within the township of E. K., within the parish of M., to try whether there was a modus of 13s. 4rl., payable by the lord of the manor of E. K. in lieu of all vicarial tithes, in respect of the lands within the township, the plaintiff'gave in evidence a bill filed in the Equity Exchequer in 1826, by the then vicar of M., against certain occupiers of lands, for the subtraction of tithes, in which the then defendants (none of whom were parties to the present issue) set up a claim of a modus of l.'is. 4d., payable by the occupiers of lands within the township, and on which a decree was made to take an account of the tithes, and that the defendants should pay such sums as should be found due, with costs :-Held, that this decree, although receivable, was not conclusive evidence on the trial of the above issue.-Nor, semble, was it binding upon the tithe commissioner.-The tithe commissioner having decided the question of modus against the vicar, and the latter having delivered a feigned issue to try that question, which the jury found for the defendants, the Court awarded them the costs, under the 4( th section of the act. [S. C. 13 L. J. Ex. 78 ; 8 Jur. 27.r).] This was a feigned issue tinder the Tithe Commutation Act, 6 & 7 Will. 4, c. 7l, s. 46, to try the validity of a modus of 13s. 4d., adjudged by the award of an assistant tithe [206] commissioner, in October, 1842, to be payable to the vicar in lieu of all vicarial tithes on lands in the township of Eye Kettleby. ; The plaintiff' was the vicar of Melton Mowbray in Leicestershire, and the defendants were the owners of land within the township of Eye Kettleby, in that parish. And the question raised by the issue was, whether there was a. good and valid modus or customary payment of one mark, or 13s. 4d., due and payable from and by the lorrl of the mqnor of Eye Kettleby for the time being at Michaelmas in every year, to the vicar far the time being of Melton Mowbray, in lieu of all vicarial tithes what-soeh'er arising and issuing out of the lands of and within the said township. The defendants asserted that there was such a modus, which the plaintiff'denied. At the trial of this issue, before Patteson, J., at the last assizes for the county of Leicester, the plaintiff'put in evidence a decree of the Court of Exchequer in Equity, made in the year 182(1, in a case of Godfrey v. Pickering and Utlierx, which was a suit instituted by the then vicar of Melton Mowbray against several occupiers of farms, (none of them being any of the present defendants), tenants of Mr. Blake, who is the owner of one-third only of the lands in the township of Kettleby, for subtraction of tithes. The defendants in that suit, in their answer, set up a claim of a modus of one mark, payable at Michaelmas in each year by the occupiers for the time being of lands within the township. The cause having been heard before the Court, a decree was made, by which it was ordered and adjudged, that it be referred to the Master to take an account of the single value of the tithes, and that the defendants should pay suc4 sum or sums of money as should or might be reported due from them, to the plaintiff, with posts of suit to be taxed by the Master.(a) This decree the counsel for ;the plaintiff [207] contended amounted to a judicial decision on the point in dispute, and as such was binding on the tithe commissioner, under the 44th section of 6 & 1 Will. 4, c. 71, which provides, "that, if it shall appear to the said com missioners or assistant commissioner that any question concerning any modus or composition real, prescriptive or customary payment, or claim of exemption from, or nonliability to^ the payment of tithes relating to the lands in question, shall have been decided by competent authority before the making of the said award, [i.e. of the commissioner], the commissioners or assistant commissioner shall act on the principle established by such decision, and shall make their award as if such decision had been marie at the beginning of the said period of seven years; " and that, if it was binding on the tithe commissioners, it was equally obligatory on the jury to find in favour of 1 -r . (b) This decree had also been given in evidence before the tithe commissioner. 12 M. &W. 208. OROCJGHTON V. BLAKE 1173 the plaintiff. On the other side it was contended, that the question in fact being whether there was a, modus or not, the jury were justified, under the circumstances of this case, in...
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