R v Tithe Commissioners
| Jurisdiction | England & Wales |
| Judgment Date | 18 December 1849 |
| Date | 18 December 1849 |
| Court | Court of the Queen's Bench |
English Reports Citation: 117 E.R. 179
QUEEN'S BENCH.
S. C. 19 L. J. Q. B. 177; 14 Jur. 290. Commented on and explained, Julius v. Bishop of Oxford, 1880, 5 App. Cas. 224, 229.
14Q.B.459. THE QUEEN V. THE TITHE COMMISSIONERS 179 [459] the queen against the tithe commissioners for england and wales. (IN the matter of great hale tlthes.) Tuesday, December, 18th, 1849. Stat. 5 & 6 Viet. c. 54, s. 7, enacts that, when the Tithe Commissioners are preparing their award under stat. 6 & 7 W. 4, c. 71, if any agreement lor commutation of tithe, &o. shall, previously to that Act, have been made, which is not of legal validity, but appears to the commissioners to give a fair equivalent for the tithe, &c., they shall he empowered to confirm such agreement; and, if the equivalent be not fair, they shall nevertheless be empowered to confirm, and to award such rent-charge as will make up a proper equivalent, and, subject to such confirmation and award, to extinguish the right to tithe. Held that this clause is imperative, and not merely permissive, if the agreement be such in its nature and circumstances as the clause was meant to comprehend. An agreement was made in 1697, between the impropriator of a parsonage, the vicar, and certain land-owners of the parish, whereby the tithes and glebe were commuted for allotments of land and annual payments. Some of the landowners, parties to the agreement, refusing to fulfil it, the others filed a bill of equity against them, and, on their submission, a decree was made in 1699, confirming the agreement. In 1707 an additional agreement was made, for a further yearly payment to the vicar, in lieu of small tithes. The agreements were not in themselves legally valid, for want of proper parties, and from other defects. Allotments were made and accepted, and the annual payments rendered and received, down to 1812. A vicar was inducted in 1796, and received his stipulated payment down to 1811, in ignorance of its origin, which he then discovered, and thereupon immediately gave the land-owners notice of determining such payment. Part (if the land allotted to him in lien of tithe had never come to his possession ; the rest he offered to give up. On the expiration of his notice, he filed a bill against certain of the land-owners for subtraction of tithe, praying an account. They alleged in defence the decree of 1699, the agreement of 1707, and the subsequent performance ; but an account was decreed, and the defendants then paid five years' arrear of tithe. In 1819 the irapro-priator filed a bill against the vicar; in that suit the agreements were relied upon and disputed, and the bill was dismissed by a decree, which was confirmed on appeal. A tenant of the impropriators, who had withheld his tithe while these proceedings were pending, then paid his arrears to the vicar. Neither of the agreements was acted upon, so far as they related to the vicar, after 1812, Held on mandamus, and demurrer to return, that agreements so circumstanced were not such as the Legislature, in stat. 5 & 6 Viet. c. 54, s. 7, intended the commissioners to confirm, and that, to a mandamus requiring them so to do, the above facts were a sufficient answer. The mandamus required the commissioners to confirm the agreements, and also to decide certain suits, and adjudicate on certain questions relative to claims of tithe by the impropriator and vicar Held that the mandaaius, being bad as to the confirmation, was invalid altogether. [S. C. 19 L. J, Q. B. 177 ; 14 Jur. 290. Commented on and explained, Julius v. Bishop of Oxford, 1880, 5 App. Gas. 224, 229.] Mandamus. The writ recited that, before and at the time of the making the agreements after mentioned, there were belonging to and in the parish of Great Hale, in Lincolnshire, divers to wit 10,000 acres of common fields, &c. and waste, and 10,000 acres of old inclosed lands ; and Ebenezer Cawdron was owner [460] of the impro-priate parsonage of Great Hale, and of divers lands in that parish; and Benjamin Deakon, clerk, was vicar of the said parish, and, as such vicar, entitled to some glebe lands iu the said uninelosed lands, and to have some small tithes arising thereout. And that Sir Edward Hussey, of, &c., baronet, who was owner of the manors of North Hall and West Hall, in Great Hale aforesaid, and of divers lands and tenements in G. H. aforesaid, Kobert Cawdron, who was owner of the manor of East Hall, in G. H. aforesaid, and of divers lands and tenements in G. H. aforesaid, the said Ebenezer Cawdron, and the said several persona hereinafter mentioned who were severally seised and interested of and in several messuages, lands and tenements in G. H. aforesaid, and in the fields, meadows, fens, parish and precincts thereof, viz. Sir Thomas Willonghby, &e. (naming several others, some of whom, were infants acting 180 THE QUEEN V. THE TITHE COMMISSIONERS 14Q. B-461. by their respective guardians), judging that it would be beneficial and advantageous to them to have the said uninclosed landa severed, plotted and divided, the greatest part of the said lands and grounds then lying promiscuously, arid the landowners suffering great lasses and inconveniences by reason of the scarcity of enclosure, to the end that every of them should have his proportionable share, &c., that so they and their heirs and assigns might respectively for ever thereafter, according to their respective estates, &c., hold the same in severally, freed and discharged of all commons, tithes and other duties to be bad or claimed by any other landowner otherwise than in the articles hereinafter mentioned was expressed, did, by articles of agreement in writing dated 16th September 1697, and by certain other agreements, consent that an inclosure should be [461] made of all common fields, meadows, common fens and waste grounds of and belonging to G. H. aforesaid : and it was thereby agreed and consented to by all the said persons that they and their heirs and assigns should respectively for ever, according to their several and respective estates and interests, hold the same grounds and plots respectively plotted and allotted to them in severally, freed and discharged of all commons, tithes and other duties to be had or claimed by the said Ebenezer Cawdron, impropriator of the said parsonage of G. H. aforesaid, his heirs and assigns, or by the said Benjamin Deakon and his successors, vicars of G. H. aforesaid, or by any owner of lands in the said parish ; reserving only to Sir E. Huasey and R. Cawdron, their heirs and assigns respectively, respective lords of the said manors, their accustomed rents, services, &c. And it was thereby further agreed by all the said persons that Is. per annum should be paid to the impropriators for every acre of old inclosures in the parish by the persons thereinafter named, their heirs and assigns, for their respective shares thereof, and in such proportions as was after expressed. The writ further recited that, in pursuance of the said articles and agreements, the uninclosed grounds were surveyed, &c., and allotments therefrom (amounting to 380 acres) made to E. Cawdron as the impropriator ; that he accepted the same, and took possession; and the lands have thenceforth hitherto been held by him, his heirs and assigns. That, in pursuance of the said articles aud agreements, there was allotted to Deakon as vicar one plot or parcel of ground called Preacher's Plot, containing by estimation 23 a. 0 r. 23 p., to be held and enjoyed by the said Deakon and his successors, vicars of Great Hale aforesaid, in lieu and full [462] satisfaction of all tithes due or payable from or out of, or growing, arising or renewing within, the said fields, meadows, fens, commons and wastes so agreed to be inclosed as aforesaid, and in lieu of the said vicar's right of common in the said places for ever: and there were further allotted, &c. to Deakon and his successors, vicars, &c., for ever, for glebe, divers other plots or pieces of ground amounting together to 30 a. 0 r. 15 p.; and Deakon accepted the said plots, &c., in lieu of such tithes and for glebe, and took possession thereof; and that he ahd his successors, as such vicars, have thenceforth hitherto possessed and enjoyed, and the Eev. Richard Bingham, clerk, the present vicar, still possesses and enjoys, the said Preacher'a Plot and the said other pieces of ground so allotted to him as aforesaid. The writ stated also the allotment of other parcels of uninclosed land to the other persons, parties to the agreement, according to their respective interests, and acceptance and possession by them ; and that, from lapse of time, &c., the lands could not be restored to their former state. It then proceeded : And whereas we have been given to understand, &c. that the tithe of wool and lamb is a rectorial tithe and not a vicarial tithe, and is included in the composition of Is. per acre per annum for the old incloaures, and that the said sum of Is. per annum hath yearly and every year, from the time of making the said articles...
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