Thorpe v Cooper, Clerk
| Jurisdiction | England & Wales |
| Judgment Date | 20 June 1828 |
| Date | 20 June 1828 |
| Court | Exchequer |
English Reports Citation: 148 E.R. 992
IN THE EXCHEQUER CHAMBER.
S. C. 5 Bing. 116; 3 Moo. & P. 245. Referred to, Bunbury v. Fuller, 1853, 9 Ex. 131; Brunsden v. Humphrey, 1884, 14 Q. B. D. 148.
[445] in the exchequer chamber. (In Error from the Court of King's Bench.) thorpe v. cooper, Clerk. June 20th, 1828.-By an inclosure act which passed in 17C9, commissioners were empowered to make allotments, inter alia, to the rector of the parish of Waddingham cum Snitterby, within the adjoining townships of "VV., S., and A., in lieu of the tithes belonging to the rector, and arising within the same lands and grounds, the award of the commissioners to be final, unless 2Y. &J.6. THORPE 1). COOPER 993 appealed against within six months, saving, however, the rights of persons other than those to whom allotments should be made in respect of their several interests. Under this act, the commissioners allotted to the rector lands in A. and S. in respect of tithes and glebe, to which he was there entitled; and in W., in respect of glebe, but made no specific allotment in W. in respect of tithes : the rector not having appealed against the award, in 1825, sued for tithes in W. : Held, that he was not barred by the statute, the commissioners having made no allotment in respect of tithes in W. [S. C. 5 Birig. 116; 3 Moo. & P. 245. Referred to, Bunbury v. Fuller, 1853, 9 Ex. 131 ; Bnmsden v. Humphrey, 1884, 14 Q. B. D. 148.] Debt on the statute 2 & 3 Edw. 6, by the defendant in error, as rector of the parish of Waddingham in the county of Lincoln, against the plaintiff in error, as occupier of certain arable meadow and pasture lands, situate within the parish of Waddingham, for not setting out tithes thereon. Plea-Nil rlebet. At the trial, which took place before Best, C. J., at the Assizes for the county of Lincoln, the following appeared to be the facts of the case : The plaintiff' then was, and since the 29th of September, 1811, had been rector of the said parish and parish church of Waddingham cum Snitterby. The plaintiff in error, on and from the 29th of September, 1817, until the 29th day of September, 1818, occupied certain meadow lands in the township of Waddingham, and had mowed and cut down and carried away divers crops of hay grown on such lands of the value of 41. 18s., without having ai any time divided or set forth for the defendant in error any tithes, and without having at any time compounded or otherwise agreed with the defendant in error for or concerning any tithes in respect of the said crops, or any part thereof. The parish of Waddingham consists of two townships, viz. Waddingham and Snitterby. Certain proceedings in Chancery in the year 1700 were also given in evidence, consisting of a bill, answer, and decree. The bill set out an agreement made in [446] 1700, between the then rector of Waddingham, and the lord of the manor, and all the freeholders of Waddingham, 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 tithes were claimed by the defendant in error, formed no part of the lands inclosed under the above-mentioned agreement and decree, but were part of the lands afterwards inclosed under the act of Parliament in 17G9, hereinafter mentioned. The above-mentioned composition of 941. per annum was proved to have been paid from time to time by the occupiers of land in the township of Waddingham, and accepted by the rectors until the year 1788, when a new rector, Dr. J. Barker, the immediite 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 of land in Waddingham and the then rector, at a valua-ijion of the jvhole parish ; and such valuation had respect as well to the lands inclosed under the abt of Parliament hereinafter mentioned, as those inclosed under the said agreement and decree. The defendant in error was presented to the rectory of Waddingham in 1808, and the plaintiff in error paid his share of the composition in respect of the lands in question to the then rector, and to the defendant in error, until the year 1811. From Michaelmas 1811, to Michaelmas 1812, the defendant in error took the tithes in kind ; and from Michaelmas 1812, the plaintiff in error 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, intitled "An act for dividing and inclosing certain open fields, lands, and grounds in the several townships of Atterby, Snitterby, and Waddingham, in the county of Lincoln," was passed. That act recited (inter alia), that the Rev. Robert Carter, [447] Clerk, was at that time rector of the parish ^,nd parish church of Waddingham cum Snitterby, and as such was seised of certain felebe lands; in the said open fields and grounds, and entitled to all the tithes great $,nd small, ecclesiastical dues, duties, and payments, arising within the titheable places of the said iparish, and also to the tithes arising upon certain parcels of land lying dispersed ill the open fields of Atterby. The act then enacted, that all the said open irable field^, common 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 Ex. Div. IV.-32 THORPE t1. COOPER 2 Y. & J. 8. to assign and allot unto and for the aaid Eobert Carter and his successors, rectors of the said parish of Waddingham cum Snitterby aforesaid, such parcel or parcels ofl 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 tljem be equal in value to and a full satisfaction for the present glebe lands of...
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