Homfray, Clerk, against Scroope and Others
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1849 |
| Date | 01 January 1849 |
| Court | Court of the Queen's Bench |
English Reports Citation: 116 E.R. 1357
QUEEN'S BENCH
[509] homfray, Clerk, against scroope and others. 1849. By the Tithe Commutation Act, 6 & 7 W. 4, c. 71, a. 46, any person claiming an interest in lands or tithes, who shall be dissatisfied with any decision of the commissioners (deciding upon an amount above 201,), may, within three months after notice to him of the decision, bring an action, by feigned issue, to dispute the decision. A commissioner decided in favour of a parochial modus. Notice was given to the rector of the parish, who died one month after, without bringing an action. The successor was not presented for more than nineteen calendar months afterwards ; and, within eight weeks after his induction, he issued a writ for the purpose of disputing the decision. Held, that he was too late; and the Court, on motion, set aside the writ and all subsequent proceedings. This was at feigned issue. The action was brought by the rector of the pariah of Pudding Norton, in Norfolk, under stat. 6 & 7 W. 4, c. 71, s. 46, to impeach the correctness of the decision of an Assistant Tithe Commissioner, whereby it was awarded that a payment of 101. per annum was a good modus for all the tithes of the parish. The defendants were owners of all the land in the parish. In Michaelmas term, 1848, Badeley, on behalf of the defendants, obtained a rule calling upon the plaintiff to shew causa why the writ of summons and ;ill subsequent proceedings should not be set aside. In the same term (a), Sir Ft Thesiger shewed cause; and Sir F. Kelly and Badeley were heard in support of the rule. The facts of the case, as disclosed upon affidavit, and the arguments urged, will sufficiently appear from the judgment of the Court. Cur. adv. vult. Lord Detunan C.J., in this vacation (February 8th), delivered judgment. [510] This was an application to set aside a writ of summons under the Tithe Commutation Act, 6 & 7 W. 4, c. 71. The assistant commissioner pronounced his decision on 30th March 1846; which wag notified to the then rector, a Mr. Wilcocks, (6) 2 Rep. 16 b. See Fan Sandau v. Turner, 6 Q. B. 773. (a) November 23d. Before Lord Denman C.J.,Coleridge, Wightman, and Erie Js. 1358 homfray v. scroope iiq.r.bu. on the 18th April following. He died on the 18th May. By the decision, establishing a modus, the value of the living was fixed at so low an amount that a successor was not easily found ; and, hy successive lapses, the...
To continue reading
Request your trial
-
Sheldon v R H. M. Outhwaite (Underwriting Agencies) Ltd
...to do, even though it led to what might seem hard decisions : Prideaux v Webber (1661) 1 Lev 31; Rhodes v Smethurst (1838) 4 M & W 42; Homfray v Scroope (1849) 13 QB 509. In the second of these cases Alderson B expressly rejected the view (at page 63) that the limitation period, once it had......
-
Estate Jonker v Liverpool & London & Globe Insurance Co Ltd
...of creditors. See sec. 67 of Act 32 of 1916, Naude's Executors v Vermaak's Heirs (19 C.S.C. 171); Homfray v Scroope (13 Q.B. 512 and 116 E.R. 1357). Newton-Thompson, in reply: Jureidini's case is distinguishable because the latter part of clause 12 was not construed. There was no effective ......