The Dean of Ely v Bliss
| Jurisdiction | England & Wales |
| Judgment Date | 31 July 1852 |
| Date | 31 July 1852 |
| Court | High Court of Chancery |
English Reports Citation: 42 E.R. 950
BEFORE THE LORD CHANCELLOR LORD ST. LEONARDS.
S. C. 5 Beav. 574; 11 L. J. Ch. 351. See Esdaile v. Payne, 1883, 32 W. R. 286; Irish Land Commission v. Grant, 1884, 10 App. Cas. 24.
[469] the dean of ely v. bliss. Before the Lord Chancellor Lord St. Leonards. July 31, 1852. [S. C. 5 Beav. 574; 11 L. J. Ch. 351. See Esdaik v. Payne, 1883, 32 W. E. 286; Irish Land Commission v. Grant, 1884, 10 App. Cas. 24.] The Act 2 & 3 Will. IV. c. 100 is unaffected by the provisions of the Act 3 & 4 Will. IV. c. 27; the interpretation clause of the latter Act, although enacting that the word " land " shall in its meaning extend to tithes, has reference to an estate in tithes, and not to tithes as a chattel, and the 2d section, therefore, does not embrace the case of a render of tithes as a chattel by the person bound to pay to the tithes' owner. The bill in this suit was filed by the Dean and Chapter of Ely, on the 4th January 1840, to establish their right to the single value of the tithes of corn and grain, and lambs and wool, against the occupiers [460] of a large tract of land, known as the Lakenheath fen, in the county of Cambridge. 3DBG.U.&0.4U. DEAN OP ELY V. BLISS 951 The bill stated the title of the Plaintiffs, under letters patent, dated the 10th September, 33 Hen. VHL, to the rectorial tithes within the parish of Lakenheath; that there was within the parish of Lakenheath, and the titheable places thereof, a large tract of land which was formerly uninclosed; that the same had been partially drained, by the powers of an Act passed in 15 Car. II., when the same was inclosed, divided and allotted in severalty; that under the provisions of another Act, passed in 8 Geo. III., the drainage was improved, so that the fen, which had been previously unproductive, or had produced titheable matters or things of very inconsiderable value, became fit to cultivate; and that about fifty years ago the fen was used and cultivated aa arable, meadow, and pasture land, and had produced titheable matters and things of considerable value, the tithes of which were rectorial, and which ought, since the 21et December 1837, to have been rendered or paid to the Plaintiffs. The bill then stated that the Defendants were occupiers, and held parts of the fen, and that they had in every year, since the 21st December 1837, taken on and from the said lands various titheable matters, which they had converted to their own use, without rendering to the Plaintiffs the tithes thereof, or making any satisfaction for the same. The bill charged that, if it should be proved that the lands had not theretofore paid some of the tithes demanded, the same was owing to the circumstance that the lands were in former times frequently under water, and were not, till about fifty years before the filing of the bill, brought into regular cultivation, and did not produce any corn or grain, or not in any considerable quantities; but that, nevertheless, [461] the tithes of lamb and wool were paid to the dean and chapter, as rector, or to their lessees, and that the tithes of agistment were also paid to the vicar of the pariah. The bill charged, by way of further evidence, that the fen was not exempt, or discharged from the payment of tithes, that in 1808 certain parties claiming under a demise then subsisting, but which had since expired, from the dean and chapter, filed their bill for the tithes of corn and grain, lambs and wool, against the then occupiers of the fen, who, by their answer, among other things, alleged that the lands in question were exonerated from tithes, by reason of their having been parcels of the possessions of the monasteries of St. Peter and St. Ethelred, but that they were decreed to account for the tithes then claimed. The bill then stated a pretence on the part of the Defendants, that no tithes whatever, of the nature claimed by the bill, had at any time within sixty years or upwards been rendered, or any satisfaction given in respect of the same to the Plaintiffs or any persons claiming under them; and that by reason thereof, and by virtue of the Act 3 & 4 Will. IV. c. 27, the right of the Plaintiffs had become extinct; whereas the Plaintiffs charged that, by an indenture made between the dean and chapter of the one part, and Hugh R. Evana of the other part, the Rectory of Lakenheath and the tithes thereto belonging, and claimed by the bill, were demised to H. R. Evans for a term of years subsisting, and which had not expired at the time of the passing of the last-mentioned Act, and that the same was subsisting till the 21st December 1837. To this bill one of the Defendants pleaded the Statute of Limitations (3 & 4 Will. IV. c. 27) as a bar to the [462] Plaintiffs' title. The plea set forth the following section of the statute:-Sect. 1, whereby it was enacted, " that the words and expressions hereinafter mentioned, which in their ordinary signification have a more confined or a different meaning, shall in this Act, except where the nature of the provision or the context of the Act shall exclude such construction, be interpreted as follows (that is to say), the word ' land' shall extend to manors, messuages, and all other corporeal hereditaments whatsoever, and also to tithes (other than tithes belonging to a spiritual or eleemosynary corporation sole), and also to any share, estate or interest in them, or any of them, whether the same shall be a freehold or chattel interest, and whether freehold or copyhold, or held according to any other tenure; and the woid ' rent' shall extend to all heriots and to all services and suits for which a distress may be made, and to all annuities and periodical sums of money, charged upon or payable out of any land (except moduses or compositions belonging to a spiritual or eleemosynary corporation sole)." . . . Sect. 2, whereby it was enacted, "that after the 31st day of December 1833 no person shall make an entry or distress, or bring an action to recover any land or rent, but within twenty years next after the time at which the right to make such entry or distress, or to 952 DEAN OF ELY V. BLISS 2 DE G. M. & d. 483. bring such, action, shall have first accrued to some person through whom he claims, or if such right shall not have accrued to any person through whom he claims, then within twenty years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to the person making or bringing the same." Sect. 24, whereby it was enacted, "that after the said 31st day of December 1833, no person claiming any land or rent in equity shall bring any suit to recover the same but within the period during which, by virtue of the [463] provisions hereinbefore contained, he might have made an entry or distress, or brought an action to recover the same respectively, if he had been entitled at law to such estate, interest or right, in or to the same as he shall claim therein in equity."' Sect. 34, whereby it was enacted, " that at the determination of the period limited by this Act to any person for making an entry or distress, or bringing any writ of quare impedit, or other action or suit, the right and title of such person to the land, rent or advowson, for the recovery whereof such entry, distress, action or suit respectively, might have been made or brought within such period, shall be extinguished." The plea then proceeded:-"And this Defendant for further plea saith, that if the said complainants ever had any right to make an entry or distress, or bring an action or suit to recover the tithes of the tract of land called Lakenheath fen in the said bill mentioned, which this Defendant in nowise admits, such right to make such entry or distress, or to bring such action or suit, did not first accrue to the said complainants, or to any person through whom they claim, within twenty years next before the institution of this suit; and that neither the said complainants, nor any...
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