Gare against Gapper, Clerk. Gould against The Same
| Jurisdiction | England & Wales |
| Judgment Date | 04 May 1803 |
| Date | 04 May 1803 |
| Court | Court of the King's Bench |
English Reports Citation: 102 E.R. 678
IN THE COURT OF KING'S BENCH.
Doubted, Blunt v. Harwood, 1838, 8 A. & E. 619. See Duke of Devonshire v. Foot, 1872, 1900, 2 Ir. R. 227; Mackonochie v. Penzance, 1881, 6 App. Cas. 445; R. v. Tristram [1902], 1 K. B. 829.
678 GARB V. GAPPER 3EAST,3. gake against gapper, Clerk. gould against the same, Wednesday, May 4th, 1803. After sentence in the Ecclesiastical Court in a matter of tithe, where the question turned upon the construction of an Act of Parliament; upon a doubt raised whether that Court had not misconstrued the Act, this Court directed the plaintiff to declare in prohibition, for the more solemn adjudication of the question whether supposing the Court-below to have misconstrued 4;he Act, a prohibition should go after sentence in a matter in which the Court below had original jurisdiction, or whether it were only a ground of appeal. [Doubted, Blunt v. Harwood, 1838, 8 A. & E. 619. - See Dwke of Devonshire v. Foot, 1872, 1900, 2 Ir. E. 227; Mackonochie v. Penzance, 1881, 6 App.. Cas. 445; R. v. Tristram [1902], I K. B. 829.] Upon a rule calling on Mr. Gapper to shew cause why a prohibition should not issue to the Consistory Court of the Archdeacon of Wells, to prohibit it from holding plea of the matters there depending between the parties; the proceedings appeared to be these: Mr. Gapper, as rector of the parish of High Ham in the county of Somerset, libelled the respective plaintiffs in the Court below for subtraction of tithes in the common form; and charged that the plaintiff Garej in the years 1798, &c. occupied so many acres of meadow and pasture land, lately part of the open waste or common called King's Sedgmoor, and lately inclosed by virtue of an Act of Par-[473]-Hament, situate within _the parish of High Ham aforesaid, and the tithable parts thereof; in respect of which the tithe of hayandiagistment tithe was demanded. To this the defendant by his answer stated, that by virtue of two Acts of Parliament, the 31 Geo. 3, e. 91, and 37 Geo. 3,;c. 16, for draining and dividing the said moor or tract of waste land called King's Sedgmoor,;the same was inclosed and allotted accordingly. That the said waste was anciently part of the possessions of the abbey of Glastoiibury, and so continued till the dissolution of monasteries in the reign of Hen. 8, and therefore exempt from tithe. That before the inclosure King's Sedgmoor was extra-parochial, and the tithes due, if at all, to the Crown, whose right was saved by the said Inclosure Acts. The respondent further admitted, that in the year 1798 he occupied eight acres of meadow, lately part of King's Sedgmoor, from .which he cut seven tons of hay; but denied that the same was previous to the passing of the said Acts within the parish of High Ham; and as to the tithe of hay, he alleged a certain modus in the said parish. In reply Mr. Gapper by his personal answer admitted that the lands in question were part of King's Sedgmoor, but denied that they were extra-parochial; because the proprietors of iands in the several parishes near adjoining to King's Sedgmoor (of which the parish of High Ham is one) did, in respect of their lands, messuages, &c. in such several parishes, claim and had from time immemorial exercised certain rights of common of...
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Veley and Another against Burder
...Appeal had reversed the decision. A prohibition would then have been sued for to set up the decision of the Court below. Gare v. Gapper (3 East, 472), reported at another stage of the suit as Gould v. Gapper (5 East, 345), was much relied upon in the Court below (ante, (a) See judgment of t......
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Griffin against Ellis and Gough
...its form regular and (a)1 See 1 Curt. Eccl. Rep. 345, 367, 371. S. C., at a later stage, 2 Curt. Eccl. Rep. 77. (a)2 See Gare v. Gapper, 3 East, 472; Gould v. Gapper, 5 East, 345; Ricketis v. Bodenham, 4 A. & E. 433. (a)3 It has not been thought necessary to report minutely the arguments up......
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Gould against Gapper, Clerk
...of High Ham there has been immemorially a modus of 2d. an acre for all (a) Vide the report of this case on the motion for the prohibition, 3 East, 472. 5 EAST, 346. GOULD V. GAPPER 1103 meadow land, in lieu of tithe of hay and agistment, and of l|d. for every milch cow depastured in such la......
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Duke of Devonshire v Edward O'Callaghan Foot
...relating to this part of the case will be found in 5th East, from p. 363 to p. 370. In that (1) 3 Ell. & Bl. 695. (2) 14 Q. B. 710. (2) 3 East. 472 ; 5 East. 345. R 2 228 THE HUSH REPORTS. [190O. Exch. Cham, case the Ecclesiastical Court assumed to give itself jurisdiction by 181*2- the mis......