Salkeld v Johnston

[196] salkeld v. johnston. Nov. 6, 10t 1841; Feb. 8, 1842. [For subsequent proceedings, see 1 Mac. & G-. 242 ; 41 E. E. 1257 (with note; Esdaile v. Payne there referred to was reversed in the House of Lords, 13 App. Cas. 613).] The statute 2 & 3 Will. 4, c. 100, brings down the period of legal memory from the time of 1 Hie. 1 to the time of the commencement of two incumbencies (not being together less than sixty years), and three years of a third incumbency; but does not create a new ground of exemption, or destroy the right to tithes upon mere proof of non-payment or non-render during two such incumbencies, and three years of a third, in cases where proof of non-payment or non-render from the time of 1 Eic. I. would, before the statute 2 & 3 Will. 4, c. 100, have established no exemption. " , The proof of the title of the vicar to some small tithes, and that the other small tithes had never been paid to the rector, is not necessarily sufficient to establish the right of the vicar to such other small tithes, especially where some of the evidence is opposed to the vicar's claim. Where, in a suit for small tithes by the vicar against ..occupiers, the rector is a Defendant and disclaims, the Court may use the disclaimer for the purpose of founding upon it a decree for the particular tithes demanded by the Plaintiff in the suit, but not for the purpose of proving the right of the vicar to such tithes. The bill was filed on the 9th of November 1833 by the vicar of the parish of Crosby-upon-Eden, in the county of Cumberland, against the Defendants, who were occupiers of land within the parish ; and it prayed that an account might be taken of the tithes of " turnips, potatoes, cabbages, tares, grass, clover, rye-grass, sainfoin and other artificial grasses not made into hay, but used as and for green fodder, or carried off the land in a green state, and other green crops yearly arising within the parish ;" and it also prayed an account of the tithes of agistment.(l) (1) A question was made in argument of whether the bill should be read as claiming the tithes in question as parcel of an endowment of all the small tithes arising within the parish, or as claiming the tithes in question, without insisting upon the endowment of the vicarage with all small tithes. The Court held that, upon the language of the bill, the Plaintiff was entitled to have it read as founding his title to-the tithes in question as part of a general endowment of all the small tithes. 1 HAKE, 197. SALKELD V. JOHNSTON 1005 The Bishop of Carlisle, who is rector of the parish of Crosby-upon-Eden, was also a Defendant, and disclaimed all title to the tithes in question. [197] The Defendants, the occupiers, by their answer, claimed no special ground of legal exemption from the payment of tithes in kind ; but said they believed that the right and title to the tithes of all the several titheable matters and things was and had always been vested in the rector for the time being of the parish, save and except so far as the same had, as the Defendants believed, been barred by a certain Act of Parliament passed in the second and third years of His Majesty King William . the Fourth (c. 100), intituled " An Act for Shortening the Time Required in Claims of Modus Decimandi, or Exemption from or Discharge of Tithes/' And the Defendants said they believed that the lands thereinafter mentioned to have been in their respective occupations had been respectively enjoyed without payment or render of any tithes of the said titheable matters and things, or any of them, or money or other matter in lieu thereof, or any of them, to the vicar of the parish for and during the whole time; that two persons in succession had held the vicarage, and for not less than three years after the institution of a third person thereto, and during such number of years as were sufficient to make up the full period of sixty years, and also the further period of three years after the institution of a third person to the vicarage. The successive incumbencies of the vicarage, during the period to which reference was made, were as follows:-Gibson, vicar, from the 10th of August 1730, after the death of the preceding incumbent; Shaw, who succeeded G-ibson, on the 25th of February 1758 ; Dr. Lowry, who succeeded Shaw, on the 18th of July 1791; and the Plaintiff, who succeeded Dr. Lowry, on the 28th of January 1833. [198] The Defendants, the occupiers, to raise the question of right, entered into admissions of the production upon and from off their respective lands, or the lands of some of them, of every of the titheable matters and things of which the tithes were claimed by the bill, and that cattle had been agisted by the Defendants or some of them. Evidence, both oral and documentary, was adduced. It was proved that the rector, for the time being, or his lessee, had received the tithes of corn and grain, but that, so far as the evidence went, the rector had never received or claimed tithes of any of the titheable matters in question in the suit. It was also proved that the vicar, for the time being, had received the tithes of some titheable matters and things arising within the parish different from and not including the titheable matters of which the tithes were claimed by the bill. It did not appear that tithes of the titheable matters in respect of which they were claimed in the suit had ever been paid to any person. Mr. Simpkinson and Mr. Purvis, for the Plaintiff. The title of the vicar to the tithes in question (independently of the statute 2 & 3 Will. 4, c. 100) is established, first, by the proof that he has always received some other small tithes; for from that fact his title to these small tithes must be inferred: Cartwright v. Bailey (3 Gwill. 938); Jeremy v. Strangeways (3 Gwill. 1173); Kennicottv. Watson (2 Ea. & You. 690); Byam v. Booth (3 Ea. & You. 716); Willis v. Farrer (2 You. & Jer. 217); Masters v. Fletcher (Younge, 35); Jackson v. Woodroffe (3 Ea. & You. 1302); Hanby v. Curtis (Id. 733); Eagle on Tithes (vol. i. pp. 122, 127). [199] Secondly, the title of the vicar is supported by the disclaimer of the rector upon the record, which shews that the tithes in question must of necessity be due to the vicar: Leathes v. Newitt (3 Ea. & You. 848); Williams v. Jones (Younge, 252). The case is taken out of the operation of the statute 2 & 3 Will. 4, c. 100, if that statute had in other respects any application, by the fact that the bill was filed before the expiration of the first three years of the incumbency of the Plaintiff. The arguments, with reference to the construction of the statute 2 & 3 Will. 4, c. 100, appear in the judgment. Mr. Boteler and Mr. Eagle, for the Defendants, the occupiers, relied on the words of the statute 2 & 3 Will. 4, c. 100, as enacting that the claim to exemption, under the circumstances, like the present, should be deemed good and valid in law; and argued that a construction which should confine the operation of the Act to cases where a legal capacity of exemption was shewn aliunde would in a great measure render it nugatory. They mentioned the case of Fellowes v. Clay (not reported), an issue under the Tithe Commutation Act, on the question of a composition real, which 1006 SALKELD V. JOHNSTON 1 HAKE, 200. had been argued, on a motion for a...