James Andrews, - Plaintiff (in Error); Thomas Drever, Thomas Mawdesley, and William Turner, - Defendants (in Error)
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1835 |
| Date | 01 January 1835 |
| Court | Exchequer |
English Reports Citation: 5 E.R. 1367
K. B. AND EXCHEQUER CHAMBER.
Mews' Dig. v. 1432. S.C. 3 Cl. & F. 314. Followed in Payne v. Esdaile, 1888, 13 A. C. 613; and see Scarlet v. Lucton School (Governors of), 1836, 4 Cl. & F. 7; and Vaux Peerage, 1837, 5 Cl. & F. 597.
[471] ENGLAND. K. B. AND EXCHEQUER CHAMBER. james andrews,-Plaintiff (in Error); thomas drever, thomas mawdesley, and william turner,-Defendants (in Error) [1835]. [Mews' Dig. v. 1432. S.C. 3 Cl. & F. 314. Followed in Payne v. Esdaile, 1888, 13 A. C. 613 ; and see Scarlet v. Lucton School (Governors of), 1836, 4 Cl. & F. 7 ; and Vaux Peerage, 1837, 5 Cl. & F. 597.] Upon the trial of an action brought by a lay-impropriator under the'statute 5 & 6 Ed. 6. c. 13., for not setting out tithe, evidence having been given 1367 IX BLIGH N,S. ANDREWS V. DREVER [1835] that the tithe in question had never been paid for the laiidsof the Defendant, the judge was required to direct the jury that a grant or release of the tithe ought to be presumed. But the judge told the jury that they could not presume a grant from mere nonpayment, and that it was no answer to a claim of tithe by a lay-impropriator. Whereupon a bill of exceptions was tendered and signed. A verdict upon this direction having been given for the Plaintiff, and judgment thereon, upon a writ of error the judgment was affirmed in the Exchequer Chamber and in the House of Lords. From evidence of a grant from the crown in 1579, and of modern enjoyment of tithes, the jury may presume intermediate conveyances of the rectory between the date of the original grant and a lease of tithes dated in 1686. Perception of tithe of corn is evidence of a title to tithe of hay. The Defendants in error being lay rectors of the parish of Prestbury, in the county palatine of Chester, and claiming to be entitled to the tithes of corn, grain, and hay, yearly arising and growing on the lands in the occupation of the Plaintiff in error, situate in the said parish, in Easter term, 1831, brought their action under the statute of the [472] 2 & 3 Edward 6. c. 13., against the Plaintiff in error, as the occupier of lands within the said parish, for not setting out his tithes. The Defendant appeared and pleaded to the action and declaration, that he did not owe the sum of money demanded, etc. The action being at issue, came on for trial before Bolland B. and a full special jury at the summer assizes for the county of Chester, in the year 1831, when, upon the evidence stated in the bill of exceptions hereinafter mentioned, a verdict was given for the Plaintiffs against the Defendant (the Plaintiff in error) for the sum of £105 15s. In the course of the trial, the counsel of the Plaintiff in error tendered the bill of exceptions to the ruling and judgment of the learned judge. The bill of exceptions, containing all the facts material to the judgment of the case, was as follows, viz. :- Upon the trial of the said issue the counsel learned in the law for the said Plaintiffs, in support of the said action, produced and gave in evidence certain letters patent of Queen Elizabeth, dated the 19th day of December, in the year of our Lord 1579, whereby the said Queen Elizabeth gave and granted unto George Calveley, Knt., George Cotton, Hugh Cholmeley, Thomas Leighe, Henry Mainwaring, John Nuthall, and Richard Hurlestone, esquires, their heirs and assigns, for ever, divers hereditaments in Cheshire, anciently appertaining to the monastery of Saint Werberg, and among other things, all the manors, hereditaments, commodities, emoluments, and profits whatsoever, of the said Queen Elizabeth, situate, lying, and being in the ville, fields, parish, or hamlets of Prestbury, in the county of Chester, and all and singular [473] the tithes, portions, and oblations whatsoever, issuing, growing, renewing, or being out of and in the ville, fields, parish, or hamlets of Prestbury aforesaid, and also all the rectory and church of Prestbury aforesaid (which said manor, rectory, and premises to the said monastery of Saint Werberg did theretofore belong and' pertain), and all and singular manors, glebes, tithes, obventions, pensions, portions, and all and singular other profits, possessions, and hereditaments whatsoever, situate, lying, renewing, or being in the ville, fields, parish, or hamlets of Prestbury aforesaid, or elsewhere soever, in the said county of Chester, to the said rectory or church in anywise belonging or pertaining, or which as part or parcel of the same rectory or church were theretofore had, known, or reputed. And the said counsel for the said Plaintiffs further produced and gave in evidence on the trial of the said issue, a certain deed of partition, executed by all the above-named parties, except the said George Calveley and the said Thomas Leighe, and dated the 1st day of October, in the year of our Lord 1586, whereby after reciting the said grant from the said Queen Elizabeth, of the above-mentioned hereditaments (among others) to the said George Calveley, Knt., George Cotton, Hugh Cholmeley, Henry Main-waring, John Nuthall, and Richard Hurlestone, and the said Thomas Leighe, and their heirs, and the death of the said George Calveley, they the said George Cotton, Hugh Cholmeley, Henry Mainwaring, John Nuthall, and Richard Hurlestone,remised, released, and for them, their heirs and successors, for ever wholly quitted claim to the said Thomas Leighe and his heirs (in his full and peaceable possession being) [474] all their right, title, claim, and demand whatsoever of and in the aforesaid rectory 1368 ANDREWS V. DREVER [1835] IX BLIGH N. S. church and manor of Prestbury, and of and in all and singular the premises thereinbefore mentioned, with the appurtenances whatsoever, except and wholly reserved all and singular messuages, lands, tenements, and hereditaments whatsoever, with the appurtenances in Chelforde and Asthull, within the aforesaid parish of Prestbury, other than all and all manner of tithes, oblations, and obventions within Chelforde and Asthull aforesaid, yearly growing, coming, and renewing, And the said counsel for the said Plaintiffs also produced and gave in evidence on the trial of the said issue, divers leases and counterparts of leases, of the tithes of corn, grain, and hay, and also of wool, lambs, pasture, and agistments of cattle, cows, calves, mares, colts, or foals, pigs, smoke pennies, Easter rolls, mortuaries, offerings, and all other tithes, and t'enths, dues and duties whatsoever, yearly coming, growing, renewing, arising, happening, or becoming due, tithed or titheable within the township of Woodford, in the said parish of Prestbury (within which township the lands of the said Defendant were situate), granted by different members of the family of Leighe of Adlington, for the time being, successors of the said Thomas Leighe above-mentioned, to the persons therein respectively named, many of the lessees under which leases were resident within the said township of Woodford, for certain terms of years, which were at the time of the trial expired, the earliest of which said leases bore date the 12th day of June, in the year of our Lord 1710, and the latest thereof bore date the 16th day of October, in the year of our Lord 1798. [475] The counsel for the Plaintiffs, in support of the action, proved the receipt of rent for and on account of Elizabeth Legh of Adlington, and Richard Legh of Adlington respectively, under and in respect of certain of the said leases, from the persons to whom the same were respectively granted as aforesaid : and the counsel for the Plaintiffs also produced and offered to give in evidence on the trial of the said issue, divers other leases, and counterparts of leases, of the tithes of corn, grain, and hay, and also of wool, lambs, pasture, an agistment of cattle, cows, calves, mares, colts, or foals, pigs, smoke pennies, Easter rolls, mortuaries, offerings, and all other tithes and tenths, dues and duties whatsoever, yearly coming, growing, renewing, arising, happening, or becoming due, tithed and titheable within townships in the said parish of Prestbury, other than the said township of Woodford, granted by the different members of the family of Leighe of Adlington, for the time being, successors to the said Thomas Leighe above-mentioned, to the persons therein named respectively, for terms of years then expired, at different times, from the llth day of November, in the year of our Lord 1686, which was the date of the earliest of the said leases, down to the 18th day of October, in the year of our Lord 1798, which was the date of the latest thereof: whereupon the counsel for the said Defendant interposed, and insisted that the said evidence so offered to be given by the said Plaintiffs was not good or admissible in law, upon the issue aforesaid, but the said justices held and affirmed, that the said evidence so offered to be given by the said Plaintiffs as aforesaid, was good and admissible in law. And thereupon the said [476] counsel for the said Plaintiffs gave in evidence the said leases last aforesaid, and the same were 'then and there read before the said justices and the said jury, and the said counsel for the Plaintiff proved the receipt of the rent reserved, under some of the same last-mentioned leases, for and on account of the lessors therein named respectively. Upon the trial of the said issue, one Thomas Brodbelt was produced and examined upon oath as a witness, by the said counsel for the said Plaintiffs, in support of the said action, who deposed that in the year 1811, he became valuer of the tithes of the parish of Prestbury, for Mr. Richard Legh of Adlington, that he continued to be so until the year 1818 : that Mr. Richard Legh died in the year 1822. That he (the witness), received tithe rents from the occupiers of the different farms. That he...
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