Sir Henry Edward Bunbury, Bart v Philip Fuller
| Jurisdiction | England & Wales |
| Judgment Date | 25 June 1853 |
| Date | 25 June 1853 |
| Court | Exchequer |
English Reports Citation: 156 E.R. 47
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 1 C. L. R. 893, 23 L. J. Ex. 29. Approved, Colonial Bank of Australasia v William, 1874, L. R. 5 P. C. 418, Rex v. Workhouse, [1966] 2 K. B. 516 Apphed, Rex v. Bradford, [1908] 1 K. B. 373. Referred to, Rex v. Bloomsburg Income Tax Commissioner, [1915] 3 K. B. 776.
[Ill] sir henry edward bunbury, bart. i. philip fuller June 25, 1853. -In debt on the 2 & 3 Edw. 6, c 13, for not setting out tithe, it appeared that the plaintiff was impropnate rector of, and the defendant the occupier of thirty acres of fen land in, the parish of M In the 47 Geo 3, an Act of Parliament passed for inclosing lands in that parish, which recites (inter alia) that, in the parish there are open and common fields, commons, &c ] that B (an ancestor of the plaintiff) is entitled to the great or rectorial tithes of cli\eis lands in the p.uish , that certain other individuals ate entitled to poitions of tithe of other lands, and that divers other pet sons are seised of lands which are tithe fiee , also, that there are certain rights of sheep walk, &c., and other rights o\ei and upon the said openjand common-able fields, &c , and that the same heaths, fens, and waste giounds in their present state \ leld but little piofit, and that it will be advantageous to the several persons if the before mentioned rights be extinguished, and the said lands and grounds diuded it aUo iccites the General Inclosuie Act, 41 Geo 3, c 109, s 18, and enacts, that the commissioners shall allot to the impropriatoi and other persons, in lieu of all tithe within M , such paits of land hereby intended to be inclosed as in th& jodgment of the commissioners shall be equal in value to two-eleventh parts of all the open field arable lands, and one-seventh part of all the old inclosed lands (except such as were formerly part of M. common, and inclosed under the 15 Car. 2, c. 17), and to one-ninth part of all the other lands in M. Sect 20 enacts, that, if there are any old inclosures or inclosed lands in M subject to the payment oi rectorial tithe in kind, or to any modus or composition, and the proprietors shall be desirous of commuting for the tithes due theieout, the commissioners shall be enabled to make compensation to the impropnator (and other persona) out of the lands of such proprietors lying within the common fields, as shall be equal in value to one-seventh part of such inclosures, and where the proprietors, being desirous as aforesaid, shall not have any open field land, they shall pay such sum as the commissioners shall adjudge a full compensation for such tithes, mod uses, &c, which sum shall be applied towaids the payment of the expenses of passing this Act, and cairying it into execution Provided, that, when the owners of any highland old inclosures shall be clesnous of discharging the same fiom tithe by giving up a part thereof, the commissioneis shall allot such part of the said old inclosures as shall in their judgment be equal iu value to such part of the said old inclosures. By sect 55, any person dissatisfied with the award of the commissioners may appeal to the quaiter sessions within four months. In pursuance of this Act, the commissioners allotted to B. (the plaintiff's ancestor) "in lieu of all the tithes arising within M.," three pieces of ground in the award particularly described, and drawn upon the plan thereto annexed, containing about 176 acres. B. entered upon the allotment, and continued seised in fee thereof until his death, when it vested in the plaintiff. The defendant's land was not drawn on the plan In the year 1840, an assistant tithe commissioner was appointed to commute the tithe of M., on which occasion the defendant claimed an exemption from tithe in respect of his land, by reason of the 47 Geo. 3, and award under it The commissioner decided, that the defendant's land was not exempt For twenty years, from 1828 to 1847 inclusive, the defendant had either set out or compounded for the tithe of his land; but from 1816 untnl IS2S he had paid tithe. Out of 16,000 acies of which the parish consisted, 9700 were fen land, and fiom lands of that description (other than the defendant's) the plaintiff had, from the year 1832, continually until the commencement of this suit, received tithe either in kind or a composition -Held, first, that the 47 Geo. 3 and award under it, did not conclusively shew that the defendant's land was exonerated from tithe, for, reading the 18th and 20th sections together, the commissioners were unrlei no obligation to make a 48 BUNBURY V. FULLER 9 EX 112. compulsory commutation of all the tithe of the parish, but an option was left in respect of old inelosures , and therefore, if the commissioners had not in fact taken into account the fen land, of which the defendant's formed a part, their award was no bar to the plaintiffs claim, notwithstanding he had neglected to appeal to the quarter sessions, and had received the compensation awarded in respect of the tithe of other land -Secondly, that the decision of the assistant tithe commissioner was not final and conclusive, mid that if, upon inquiry in a superior Couit, he should be found to have been correct in deteimining that the tithe of the land in question had riot been commuted or extinguished under the 47 Geo. 3, then his proceedings would, by the 45th section of the Tithe Commutation Act, be conclusive, subject only to the qualifications ansing out of the 4Gth, but if that inquiry should teiminate in sustaining the award, then all that he had done would be coiam non judice, the 90th section of that Act having excepted fiom the jurisdiction of the commissioners the case of lands the tithes whereof have been already commuted ot extinguished undei any Act of Parliament theretofoie made -Ihndly, that the twenty years' petception of tithes was riot conclusive evidence of the plaintiffs light to them, the 3 k 4 Will. 4, c 27, hav ing no application to a case like the present [S. C. 1 C. L R .S93, 23 L J Ex 29. Approved, Colonial BavL .J Au.t,ala^ia v JPillan, 1874, L. R 5 P C 418, Res v tt'odhou te, [1906J 2 K B 516 Applied, Rex v Bimljonl, [1908] 1KB 373 Refeired to, Ilex v Bloom^biuy Income Tiu1 Commnkionsit, [1915] 3 K B. 776.] Error on a bill of exceptions. The first count of the declaration was in debt by the plaintiff, as improptiator, [112] on the statute 2 & 3 Edw 6, c 13, for riot setting out tithe of hay arising in the year 1848 from certain land in the occupation of the defendant, and situate in the pan&h of Mildenhall, in the county of Suffolk The second was a similar count in respect of the tithe of corn and giam arising in the year 1850. There was also an indebitatus count for tithes bargained and sold. Pleas-To first and second counts, not guilty (by statute), to the third count, never indebted-Upon which issues were joined. The cause was tried before Erie, J, at the Suffolk Spring Assizes, 1 S51, when a verdict was found for the defendant on all the issues The material facts, stated in the bill of exceptions to have been proved by the plaintiff in support of the first and second issues, are as follows -The defendant had been, since the year 18J6, continually, up to the commencement of the suit, and then was, the owner and occupier of the land in the first and second counts mentioned, which land consisted ot a field or close containing twenty-nine actes, two roods, and thirty-one perches ot arable land, and was fen-laud, situate in the parish of Mildenhall, in the county of Suffolk The said field or close of land was and is drawn upon a map of the pansh of Mildenhall, known bv the name of the "Parish Map," and is numbered " 113'' upon the map. The plaintiff also gave in evidence an office copy of so much as lelated to the Abbey of Bury St Edmunds, and to the parish of Mildenhall, of a certain survey and valuation of spiritual benefices made under the 26 Hen 8, c 3 , from v\bich it appeared, that, before the passing of the 31 Hen 8, c 13, the rectory and the manor, and certain lands with-[113]-m the parish of Mildenhall, formed part of the pobsessums of the abbey or monastery of Bury St. Edmunds, in the county of Suffolk, and that the said abbey 01 monastery had, before the dissolution thereof, in lands, tenements, rents, tithes, portions, and other hereditaments, above the clear yearly value of 2001. The plaintiff also gave in evidence certain deeds and documents, from which it appeared that Sir Thomas Hanmer, Bart, in his lifetime and at the time of his death, was seised of certain parcels of tithes rn the parish of Mildenhall, subject to such outstanding terms of years as might affect the same. The bill of exceptions then stated that Sir Thomas Hanmer devised his estates to Sir William Bunbury in fee simple, that Sir William Bunbury devised his estates to Sir Thomas Charles Bunbury in fee simple, and that Sir Thomas Charles Bunbury devised his estates to trustees to the use of Henry William Bunbury for life, remainder to the use of the plajntiff for life And thereupon the counsel for the defendant admitted that Henry WQliam Bunbury died in the year 1811 , and that Sir Thomas Charles Bunbury died in the year 1821, and that the plaintiff', by virtue of the devise aforesaid, then entered into the rents and profits of the estates so devised to him, and was at the commence- 9HX.m BUN BURY V FULLER 49 ment of tbia suit in the possession or in the receipt of the rents and profits of the above-mentioned real estate, and in the receipt of tithes arising from divers fen and other Jands in the parish. The counsel for the defendant also admitted, that, for and daiiug tbe full period of twenty years, that is to aay, from the year 1828 up to and until the year 1847, both inclusive, and in each and every year during the said twenty years, either the defendant set out, and the plaintiff took in kind, the tithes of...
To continue reading
Request your trial
- Inchcape Malaysia Holdings Bhd v RB Gray and Another
-
The King (Martin) v Mahony
...(4) 1 Br. & Bing. 432. (5) 1 M. & G. 257. (1) 1 Q. B. 66. (2) 1 M. & G. 257. (3) 3 E. & B. 609. (4) 2 H. & N. 219. (5) 22 Q. B. D. 345. (6) 9 Ex. 111. (7) 15 Q. B. 121. (1) 22 L. R. Ir. 500. (1) 15 Q. B. 121. (2) 22 L. R. Ir. 500. (3) 8 T. R. 588. (1) 22 L. R. Ir. 98. (2) 22 L. R. Ir. 500. ......
-
R v Queen's County Justices
... ... An affidavit was made by Mr. Henry Vincent White, the county surveyor, in which he ... Hemphill v. Frazer (1) , Bunbury v. Fuller (2) , Thompson v. Ingham (3) , In re ... ...
-
The Queen (on the application of MS) (a child by his litigation friend MAS) (Anonymity Direction Made) v Secretary of State for the Home Department
...a tithe commissioner could not give himself jurisdiction over land which had previously been discharged from tithe ( Bunbury v Fuller (1853) 9 Ex 111), [1853] EngR 768; and a rent tribunal could not give itself jurisdiction over an unfurnished letting ( R v Fulham, Hammersmith and Kensingto......