Willis v Farrer and Others
| Jurisdiction | England & Wales |
| Judgment Date | 13 May 1830 |
| Date | 13 May 1830 |
| Court | Exchequer |
English Reports Citation: 148 E.R. 1178
EXCH. CH. IN EQ.
See p. 381, post.
willis v. farrer and others. Exch. Ch. in Eq. May 11, 21, 1829.-New trial of an issue directed in a tithe suit, it appearing that the verdict had been obtained by surprise, and against the opinion of the learned Judge who tried it, the verdict being also contrary to the opinion of the Equity Judge. [See p. 381, post.] The issue directed in this cause was tried at the Spring Assizes for York, in 1829, before Mr. Justice Bayley and a special Jury. The evidence on the part of the plaintiff, in addition to the evidence in the suit in equity, consisted of a commission, issued in 1716 by the then Archbishop of York, for inquiring into the rights of the vicar, and the return to it: in which return the vicar was stated to be entitled to " all small tithes throughout the whole parish, except Kirby." [26^] It appeared that Lawson, one of the persons signing the terriers of 17 {6, was a person examined under thia commission. i The evidence of the defendants consisted of the terriers produced by them in Equity, and of a great deal of parol testimony, that the 11. 17s. 9d. was paid to the rector for agistment, hay, and grassing, and that no agistment tithe had ever been claimed or paid by or to the vicar, in Kirby, Broughton, or Dromonby. The jury found a verdict for the plaintiff. Mr. Brougham, for the defendant, on the llth May, obtained a rule to shew cause why a new trial should not be granted of the issue, on the grounds that the verdict wag contrary to the evidence, and given through mistake and surprise, and against the opinion of the learned Judge, who, on the trial, had gone through the evidence of the plaintiff, and some part of the evidence of the defendant, and was making an observation in favour of the defendant, when the Jury interrupted him, saying they 3Y. &J.2H. WILLIS V. FARRER 1179 were quite satisfied; and the Judge thereupon stopped, and the Jury found immediately a verdict for the plaintiff. Mr. John Williams, Mr. Boteler, Mr. Alderson, and Mr. Cressvvell, now shewed cause. It does not appear from the Judge's report, that there was any miscarriage in point of law.(a) With respect to the evidence, in the first terrier produced by the defendants, in which the word "grassing" was introduced, was dated in the year 1749, and was not signed by the vicar; and the word "grassing" appeared to have been written on an [266] erasure. A terrier of 1789 was also produced by the defendant, which appeared to be signed by Ellis the vicar, then of the age of eighty six years, and who had previously signed five terriers without that word. It was evident to the Jury, that undue advantage must have been taken of his great age. The defendants also produced a terrier of 1809, signed by vicar Greenside. It appeared from the evidence that a family of that name were the principal land-owners in the parish, and that the vicar was some relation ; and it was therefore for the consideration of the Jury, whether the vicar had not sacrificed the tithes for the benefit of his landed property. The learned Judge, in summing up, left it to the Jury to consider whether grassing might not be included under the term hay. It has been said by Sir William Grant that, if the case is to be sent to a Jury until the verdict shall be in accordance with the opinion of the Equity Judge, there can be no use in ever directing an issue. Nothing is more common than to find a rector entitled to wool and lamb, and the vicar to all other small tithes. The doubt expressed by the learned Judge is at variance with the decree, and would appear to have arisen from the difference between a rector and vicar, and a vicar and his parishioners, not being sufficiently attended to. Mr. Brougham, Mr. F. Pollock, and Mr. Simpkinson, in support of the rule. There is no instance of an application for a new trial being refused, where the verdict appears to have been against the opinion of the learned Judge, unless where the Court is clearly satisfied that the Jury were right and the Judge wrong. The true reading of the Ecclesiastical Survey is "caitera," and not "casteris." The words "belonging to the vicar" need not have been inserted, if the vicar was entitled to all small tithes, not before mentioned iti the Survey. No reliance can be placed on the Ecclesiastical Survey. ; The entry, with respect to the rectory, is incorrect; hay, lamb, and [267] wool, in Kirby, clearly belong to the vicar, and it is so decreed in this cause ; but no exception as to Kirby is found in the Ecclesiastical Survey. The reason why Ellis did not sign the five terriers alluded to on the other side, is explained by his having a dispute with his parishioners, which had been adjusted when he signed the sixth. The terrier, signed by Greenside, is also signed by both churchwardens. This is not an issue granted to the vicar as of course, but an issue directed by the Court to satisfy its own conscience. The return to the commission was made simply with a view to the augmentation of the benefice, and not for the purpose of ascertaining the rights of the rector and vicar. the lord chief baron. This is a rule to shew cause why there should not be a new trial. I directed an issue to try the vicar's claim to the tithe of agistment of four townships in the parish of Kirby, They are called Dromonby Major and Minor, and Great and Little Broughton. There was another township within the parish, called Kirby, of which I decreed to the vicar the tithe of agistment, at the hearing in equity. Upon the trial of the issue, the vicar obtained a verdict, against the opinion of the Judge. I am of the same opinion with the .fudge. The endowment upon which tiie vicar's claim must be founded is lost. lie must supply the loss by such evidence as will warrant our presuming that the lost evidence contained words conferring upon him the tithe in question. The usual evidence upon such an occasion is, to shew the actual receipt of the small tithe. Such evidence! is totally wanting in this case. No such tithe appears ever to have been rendered to any body. The absence of this evidence is supplied here, as it is contended, by documentary evidence. The evidence for the vicar consists only of two documents and certain terriers. As to actual (a) It appeared, however', from the learned Judge's report, that he was not satisfied with the verdict, for, at the foot of his report was the following remark: "There being no evidence of agistment tithe paid, notwithstanding the terriers, [ think the verdict was wrong." 1180 WTT.LTS r. FARRER 3 Y. & J. 268. perception, there is not the slightest evidence that the vicar ever re-[268]-ceived it. It is the just inference from the whole case that, shortly previous to the year 1749, ha made a claim for it; that this claim was immediately opposed, on the same ground on which the parishioners now stand; that it was sometimes formally relinquished by the vicars, and. until this suit, never persisted in. What collateral evidence is sufficiently powerful to overturn an immemorial usage, and, after this dispute has actually arisen, ail acquiescence of seventy years, attended occasionally by a formal acknowledgment, for so I view the vicar's signatures to the defendant's terriers 1 Both the documents, the Ecclesiastical Survey, and the return to the Archbishop's commission in 1716, are open to the criticisms that have been made on them : viz. the first, that it is expressed equivocally, and may mean that the vicar's emoluments arose from such of the small tithes as he was entitled to; the other, that there is upon the face of it a gross inaccuracy, in ascribing to the vicar all the small tithes of the parish. They had both of them the pecuniary amount of the emoluments. The sources from which they arose were but a secondary consideration. The object was answered, by stating that the amounts, which they verified, were produced by small tithes arising within the parish. Usage, the great expounder of ancient instruments, negatives what the expression naturally imports. The Survey ascribes to the rector, the tithes of hay, lamb, and wool, through the whole parish, and makes no exception of the township of Kirby : a statement avowedly false in a most important point. As to the certificate, if it meant to represent that all small tithes, throughout the parish, were received by the vicar, that was unquestionably a mistake, for wool and latnb are received by the rector. If it meant, as is contended by the vicar, all the small tithes except wool and lamb, still it is inaccurate, for the vicar is entitled to the tithe of wool and lamb in other districts, if the occupier inhabit within [269] the township of Kirby. So that, understand it how you please, there is no precision in the statement. I make these observations for the purpose only of shewing how little reliance is to be placed on these old documents, when they are speaking of what was, to the framers of them, an inferior object, and are not speaking of the amount of the receipt; and how greatly that reliance is diminished, when you find it contradicted by the usage; no agistment whatever having been paid to him, as is confessed. It is said that agistment is a new tithe, and that Chief Baron Richards was among the first who signed a bill for it. I am apprised that something of that sort is reported to have been said by that learned Judge in Byan v. Booth.(a) But I confess, I do not know how it can be called a new tithe, when there is upon the rolls of Parliament a petition of the Commons, in the second year of Henry the Fourth, A.D. 1400, complaining that the clergy sue unjustly in the Ecclesiastical Court for the tithe of agistment ; and when our books contain, in prohibition, causes upon agistment tithe, so early as Queen Elizabeth, expressly establishing it. : The next evidence produced on the part of the vicar consists of terriers. In looking at...
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