Hawkins, Appellant, against The Churchwardens and Overseers of Lamberhurst, Respondents
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1858 |
| Date | 01 January 1858 |
| Court | High Court |
English Reports Citation: 120 E.R. 416
IN THE COURT OF QUEEN'S BENCH AND EXCHEQUER CHAMBER
[22] hawkins, Appellant, against the churchwardens and overseers of lamberhurst, Respondents. This was a case stated by consent of parties, and order of Wightraan J., under atat. 12 & 13 Viet. c. 45, s. 11, for the opinion of this Court. The appellant is vicar, and the respondents are churchwardens and overseers, of the poor, of the parish of Laraberhurst, in the counties of Kent and Sussex. On 3d February, 1857, a poor rate was made for the said parish of Lamberhurst. It was thus intituled : " An assessment for the relief of the poor of the pariah of Lamberhurst, in the counties of Kent and Sussex, and for other purposes chargeable thereon, according to law, made this 3d day of February, A.D. 1857, after the rate of 8d. in the pound." In the rate the appellant was thus assessed. Gross estimated rentul. Rateable value, Rate at gd. Glebe house Land Vicarial tithe rent charge £ s. d. 40 (J 0 500 625 0 0 H, 8. d. 32 0 0 400 460 0 0 £ b. d. 1 1 4 028 15 6 8 The rate was duly allowed and published. On the 6th and 7th of March last the appellant duly served on the respondents notice of his intention to appeal against the said rate, as excessive, at the Easter quarter sessions to be holden at Maidstone. The present case is now stated under stat. 12 & 13 Viet. c. 45, s. 11. [23] The tithes of the parish of Lamberhurst were commuted, under the Tithe Commutation Act, 6 & 7 W. 4, c. 71, for a rent charge payable in lieu of such tithes. It is agreed that the gross sum payable in respect of this rent charge for the year 1857 shall be taken to be 6251. In estimating the rateable value of the said rent charge at 4601., the respondents took into consideration, and made allowances (by way of deduction from the said sum of 6251.) in respect of, ecclesiastical dues, and tenths, poor rate, highway rate, expences of collecting, and probable loss in collecting the rent charge, and also for the profit which they considered would be sufficient to induce a solvent tenant to take a demise of the rent charge: but they refused to allow, and contended that they ought not to make any allowance or reduction, in respect of Land tax, Property tax, Payments to the Governors of Queen Anne's Bounty, or for the personal services of the appellant as officiating minister of the parish of Lamberhurst as hereinafter mentioned. The correctness of the amounts of the reductions which the respondents allowed as above mentioned is, for the purpose of the present inquiry, admitted. ELBL.4BBL.M. COMMUTATION RENT CHARGES 417 The appellant contends : 1st, that the respondents should not have taken as " gross estimated rental" the said gross sum receivable by him in respect of his rent charge, but the said sum of 4601. He also contends that, for the purpose of ascertaining the rateable value of his said rent charge, the respondents should have further reduced the said amount of 4601. by the sums of 81. 12s. and 251. 17s. 5d., payable by him for the year 1857, in respect of his said rent charge, for Land tax and Property tax respectively, and by a further sum in respect of the suras payable by him in [24] the said year to the Governors of Queen Anne's Bounty as hereinafter mentioned. id 1843 the vicarage house of Lamberhurst (in the said assessment called the Glebe house) having become so ruinous and decayed that one year's net income of the said vicarage would not have been sufficient to rebuild or put the same, with the necessary offices, into sufficient repair, it was (under the provisions of the Acts of Parliament after mentioned) certified by a surveyor, duly appointed by the ordinary to examine the same, to be unfit for the residence of the incumbent of the benefice. Thereupon, under the provisions of stat. 17 G. 3, c. 53, and of stat. 1 & 2 Viet. o. 23, the appellants obtained the consent of the ordinary of the diocese and the patrons of the church and living to borrow and take up at interest (in the manner provided by the said Acts) the sum of 12001., to be laid out and expended in rebuilding the said vicarage house and other necessary offices upon the glebe, belonging to the said church and living. This sum was advanced by the Governors of Queen Anne's Bounty, in accordance with the said Acts of Parliament: and, by an indenture made 3d February 1843, between the appellant, as vicar of Lamberhurst, of the one part, and the Governors of Queen Anne's Bounty, of the other part, in the form given by the schedule to stat. 17 G. 3, c. 53, the appellant granted, by way of mortgage, all the tithes and profits of his vicarage to the said governors as a security. By that indenture the appellant covenanted to pay interest at the rate of 3J per cent, per annum on the said sum of 12001., or so much as, at the end of each year, should be due, and to repay the principal by instalments of l-30th part thereof in each year. The indenture (as in [25] the form contained in the schedule aforesaid) contained a proviso for avoidance of the said indenture on payment of the said principal sum and interest by the appellant and his successors in manner aforesaid. The amount payable under the said indenture for the year 1857 will be 651. 4s., being 251. 4s. for interest and 401. for an instalment of principal. The appellant resides in the said vicarage house. No regard has hitherto been had to theae payments to the Governors of Queen Anne's Bounty in estimating the annual rateable value either of the said vicarage house or rent charge. The appellant also contends that a further reduction should have been made in respect of his services and personal labour, as officiating minister of the parish of Lamberhurst. The parish of Lamberburst contained, at the last Parliamentary census, a population of 1734 souls. And it is agreed that, if the Court shall be of opinion that any reduction should be made in respect of such services and labour, the amount of such reduction shall, for the purpose of this case, be taken at 1501., being such a sum as, under the provisions of stat. 1 & 2 Viet. c. 106, the bishop is authorized to appoint by way of stipend to a curate for any benefice and parish of like value and population with the said vicarage and parish of Lamberhurst in the event of non-residence of the incumbent, and upon other events specified by the said Act. The appellant claims to make these reductions, which have not been allowed by the respondents, if the Court shall think they ought to have been allowed, either before or after the gross estimated rental shall have been ascertained, according as the Court shall decide. [26] The questions for the opinion of the Court are : 1. Whether the gross estimated rental of the said tithe rent charge should (accord ing to the contention of the respondents) be taken at the said sum of 6251., or (accord ing to that of the appellant) at the said sum of 4601. 2. Whether, in ascertaining the rateable value of the said tithe rent charge or of the glebe house, the respondents should make an allowance in respect of Property tax, Land tax, Payments to the Governors of Queen Anne's Bounty, and for the apellant's services as officiating minister of Lsimberhurst, or for any of the said matters. (Judgment to be entered in conformity with the decision of the Court.) K. B. xxix.-14 418 HACKNEY AND LAMBERHURST TITHE Bt. BL, tc BL. 87. The case of Goodchild against The Trustees &c,. (ante, p. 2) was argued in Michaelmas Term, 1857 (a). Hugh Hill, for the respondents. The circumstance that, under stat. 6 & 7 W. 4, c. 71, s. 37, the tithe commutation rent charge was increased to 3s. for the express purpose of covering the rates, charges and assessments, including poor rates, which have never since amounted to so much as the 3s., ought to be taken into account in estimating the deductions to which the owner of the rent charge is entitled. The general principle upon...
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