Thorpe v Cooper
| Jurisdiction | England & Wales |
| Judgment Date | 23 June 1828 |
| Date | 23 June 1828 |
| Court | Court of Common Pleas |
English Reports Citation: 130 E.R. 1004
IN THE COURT OF COMMON PLEAS, AND OTHER COURTS
S. C. 2 Moo. & P. 245; 2 Y. & J. 445, Referred to, Brunsden v. Humphrey, 1884, 14 Q. B. D. 148.
[116] (!n the exchequer chamber.) thorpe v. cooper. June 23, 1828. [S. C. 2 Moo. Si P. 245; 2 Y. & J. 445. Referred to, Brunsden v. Humphrey, 1884, 14 Q. B. D. 148.] Where commissioners under an inclosure act of 1769 were to make allotments to persons possessing interests in the contiguous townships A., B., and C., and made SBfflQ.HT. THORPE V. COOPER 1005 allotments to a rector in . and G. in respect of tithes and glebe to which he was entitled in B. and C., and in A. in respect of glebe to which he was entitled in A., but omitted to make any specific allotment; in A. in respect of tithes to which he was entitled in A.; the act containing a saving clause for all persons other than those to whom allotments or compensations should be made in respect of their several interests, Held, that the rector was not barred from suing for his tithes in A. in 1825, although the award was to be final unless appealed against in six months. Error from the King's Bench on a bill of exceptions, by which it appeared that tkis was an action brought on the statute 2 & 3 E'l. 6 by the Eeverend William Cooper, as rector of the parish of Waddingham, in the county of Lincoln, against Thorpe, an occupier of certain arable, meadow, and pasture lands in the parish of Waddingham, for not setting out the tithe thereon. The Plaintiff, at the time of the trial of the cause, was, and since the 29th September 1811 had been, rector of the parish of Widdingham-cum-Snitterby. The Defendant on the 29th September 1817 occupied certain arable, meadow, and pasture lands in the township of Waddingham, and had cut and carried away divers crops of corn, grain, and hay, grown on such lands, of the value of 41. 18s., without having set forth any tithes, or compounded for tham. The parish of Waddingham consists of two townships, viz. Waddingham and Snitterby, Certain proceedings in Chancery in the year 1700 were given in evidence, consisting of a bill, answer, and decree. The bill set out an agreement made between tha then rector of Waddingham and the owners of lands in the parish, that certain common lands should be inclosed, and that the rector should have a certain portion of the lands, and the annual sum of 941., in lieu of tithes; and this agreement was confirmed, and ordered to be performed, by the decree. The lands on which [117] tithes were claimed by the Plaintiff in this action formed no part of the lands inclosed under tha above decree, but were part of the lands inclosed under an act of parliament in 1769, hereinafter mentioned. The above-mentioned composition was proved to hava been paid from time to time by the occupiers of land in the township of Waddingham, and accepted by the rectors from that time until the year 1788, when 9 new rector, Dr. J. Barker, the immediate successor of Robert Carter hereinafter mentioned, succeeded; the composition of 941. per annum was then abandoned, and a new composition agreed upon between the occupiers and the then rector, at a valuation of the whole parish; and such valuation had respect as well to the lands inclosed under the act of parliament hereinafter mentioned as those inclosed under the decree. The Plaintiff was presented to the rectory of Waddingham in 1808, and the Defendant paid his share of the composition in respect ol the lands in question to the Plaintiffs predecessor, and to the Plaintiff, until the year 1811. From Michaelmas 1811 to Michaelmas 1812, the Plaintiff took the tithea of them in kind, and from Michaelmas 1812 the Defendant refused to pay any composition, or set out his tithes, in respect of the lands in question. In the year 1769, an act of parliament, entitled "An act for dividing and inclosing certain opea fields, lands, and grounds in the several townships of Atterby, Snitterby, and Waddingham, in, the county of Lincoln," was passed. That act recited (inter slia) that the Reverend Robert Carter, clerk, was at that time rector of the parish and pariah church of Waddingham-cum-Snitterby, and as such, was seised of certain glebe lands in the said open fields and grounds, and entitled to all the tithes great and small, ecclesiastical dues, duties, and payments arising within the titheable places of the said pariah; and also to the tithes arising upon certain [118] parcels of land lying dispersed in the open fields of Atterby ; and then enacted, that all the said open arable fields, commons, pastures, carrs, and waste grounds, or other open and common grounds in the said several townships, be divided and allotted by certain commissioners appointed to carry the act into execution, and directed such commissioners to assign and allot unto and for the said Robert Carter and his successors, rectors of the said parish of Waddingham-cum-Snitterby aforesaid, such parcel or parcels of the said arable fields, common pastures, and carrs within the said township of Snitterby (except the common pasture called the Carrside), so directed to be inclosed as aforesaid, as should in the judgment of the commissioners, or any two of them, be equal in value to and a full satisfaction for the present glebe landa of the said rector within tha last-mentioned lands and grounds so to be inclosed, and then to assign and allot unto and 1006 THOBPE t'. COOPBB 8 BING. 119. for the said Robert Carter, and his successors as aforesaid, such parcel or parcels of the residue of the same arable fields or common pastures and carrs in Snitterby aforesaid, and also of the...
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