« ΠροηγούμενηΣυνέχεια »
payment of tithes in kind, should be abolished and extinguished, and that in lieu thereof, an adequate compensation should be made to the impropriator of the impropriate rectory of Chatleris, for the time being, and to the vicar of the vicarage of Chatteris, for the time being, by an allotment in manner thereinafter mentioned, so far as respected the said open fields, lands, commons, and low grounds, and by an annual corn rent as thereinafter mentioned, so far as respected the said homesteads, gardens, orchards, and inclosures ; and it was by the said act, among other things, enacted, that the said commissioners should make a valuation of all the tithes, both great and small, arising or renewing out of, in or upon the said homesteads, gardens, orchards, and *4 *inclosures, and to inquire of the clerks of the market, or of the inspec
+] tors of corn returns at IVisbeach, in the isle of Ely, what had been the average price of good marketable wheat in the said market during the term of fourteen years next preceding the first day of January, in the year of our Lord 1809, and should, in and by their award, ascertain and set forth what quantity of such wheat, according to the average price aforesaid, would be equal in value to all the tithes arising, renewing, and due or payable out of, or for the said homesteads, gardens, orchards, and inclosures, according to the valuation to be made as aforesaid ; and that there should be issuing and payable to the said impropriator and vicar respectively, such several yearly rents or sums of money, free and clear from all rules, taxes, and deductions wohutsoever, out of the said homesteads, gardens, orchards, and inclosures res. pectively, as should be equal in value to the quantity of wheat so to be ascertained as aforesaid ; which said rents or sums of money should for ever afterwards be payable to the said impropriator and vicar respectively, in such proportions and manner as should be set forth in the said award of the said commissioners, by equal quarterly payments in every year. The plea then averred, that the commissioners made such valuation of the tithes, and ascertained the quantity of wheat equal to them in value; and that the commissioners duly made their award according to the provisions of the act, and proceeded thus. * And the plaintiff further saith, that he, the said plaintiff, after the passing of the said act, and the making of the said award, and long before, and at the said time when, &c., was, and from thence hitherto hath been, and still is, 2651 vicar of the vicarage of the parish of Chatteris aforesaid; *and so being
el vicar as aforesaid, at the said time when, &c., was, and from thence hitherto hath been, and still is, by virtue of the award of the said commissioners, entitled to the said yearly corn rent, so in and by the said award set forth, ascertained, and directed to be paid to the said vicar for the time being, free and clear from all rates, taxes, and deductions whatsoever. And the said plaintiff further saith, that the said goods and chattels in the said declaration mentioned, were seized, taken, and detained at the said time when, &c., by the said defendant as overseer of the poor of the parish of Chatteris, and as a distress for a certain sum of money, to wit, the sum of 761. 38. 9d., rated and assessed on the 25th of Novenber, in the year of our Lord 1823, upon the said plaintiff, for and in respect of the said corn rents, so ascertained and di. rected to be paid to the said plaintiff as aforesaid, in and by a certain rate and assessment, made and assessed according to the statutes in that case made and provided for, and towards the relief of the poor of the said parish of Chatte ris, and which said sum the said plaintiff had, before the taking and detaining the said goods and chattels on demand, refused to pay, to wit, at Chatteris aforesaid, in the county aforesaid. Demurrer and joinder.
Tindal, in support of the demurrer. The plain object of the legislature was, to give the vicar a compensation for the tithes and nothing more. The statute begins by reciting, that he is to have an adequate compensation, and then specifies the mode in whieh it is to be calculated and paid. It does not RAAT appear to have been intended to place the vicar in a better situation "I than he was before, nor to repeal the 43 Eliz. C. 2, unless that *effect
is to be given to the words, “ free and clear of rates, taxes, and all deductions." Those words will be satisfied by a decision, that the money is to be paid free from all deductions, payable in the first instance by the tenant of the lands, ex. gr. the land tax, for which the vicar would be liable to the tenant but for this exemption. By the statute of 43 Eliz. c. 2, the rate is not upon the tithe itself, but on the parson in respect of the tithe, and now it will be on him in respect of that which he receives in lieu of tithe, Lowndes v. Home, 2 Bl. 1252. In Rex v. Lambeth, Str. 525, it was laid down, that where a parson suffers a tenant to retain his tithes, he is nevertheless liable to poor rate, so also where there is a composition real or modus. It thence follows, that he is rateable in respect of the payments secured by this act. It is called a rent, and strictly rents are not rateable, but the nature of the rent must be considered. A ground rent is not rateable only because the occupier of the premises is rated in respect of the whole produce of the land, which is not the case in the present instance.
Marryat, contra. The exemption in this statute protects the vicar from the burden to which, but for that, he would have been liable. By this act a certain rent is payable for a certain number of years, during which no variation can be made in it. The act, therefore, operates as a lease of the tithes. Now where a parson makes a lease, he ceases to be rateable, although the law is otherwise, where he merely by parol allows the tenant of the land to retain the tithes. Rex v. Lambeth, cited from 1 Str., *is also reported in re 8 Mod. 61, and by that report it appears, that the parson let the tithes, 10 and that the lessee allowed the occupiers of the land to retain, and the court held, that the farmers of the tithe were to be rated; but they add, “It is true it might be otherwise if an under lease had been made thereof." The case of Lowndes v. Horne, is very different from this. Here the act says, that there shall be a certain sum of money issuing out of the inclosed lands by way of rent, and that it shall be paid to the vicar, “ free and clear from all rates, taxes, and deductions whatsoever," which last term did not exist in the act upon which Lowndes v. Horne was decided. The word “rates” was probably used to denote parochial burthens and “taxes,” parliamentary imposts.' In Rex v. Toms, Doug. 401, it appeared that a private act of Parliament for settling the rights of the vicar of St. Michaels, Coventry, authorised the making an assessment in a certain mode. A subsequent section gave an option to the parish officers to raise yearly for him, in lieu thereof, a sum not exceeding 3001., and not less than 2801., which was to be paid to him “ clear of all taxes, deductions, charges, and expenses whatsoever, parochial, Parliamentary, or otherwise howsoever ;” and it was held, that although the claims of the vicar were satisfied by the former mode, and the clause and appointing that mode did not contain any express exemption, yet that the vicar was not liable to be rated in respect of the money so raised. An ex. emption in terms similar to those found in this act of Parliament has in several cases been held sufficient to exempt property from poor rates; Rex v. Calder Navigation, 1 B. & A. 263, Rex v. * Hull Dock Company, 1962 1 T. R. 219. No doubt the commissioners, in making their valuation of the rent, would take the exemption into consideration.
Tindal, in reply. It is not stated as a fact that the commissioners did take the exemption into consideration, and it cannot, therefore, be assumed that they did so. It is plain, that the words " free and clear of all rates and taxes," cannot be construed in their largest sense, for they would not have exempted the parson from the property tax, had that now existed. The real meaning appears to be, that the money shall be free of all ratés, &c. payable by the tenant. As to Rex v. Toms, there the assessment for the vicar was to be made by the churchwardens, amongst others; it would, therefore, have been somewhat absurd for the same persons first to fix what he should receive, and then call upon him to pay part back for the poor rates.
Bayley, J. Under the statute 43 Eliz. c. 2, a parson or vicar is expressly made liable to be rated to the poor, and it is not necessary to show that they occupy lands, &c., in the parish. But the question in the present case is, whether the act now before us exempts the vicar from such rates. That act was a matter of bargain between the parishioners, owners of lands, and the vicar. The act operates on the whole parish, and each proprietor of lands in the parish will derive a benefit from it; for their land will of course bring a higher rent, in consequence of being exonerated from tithes. After the pro. X620vision for the extinguishment of tithes, comes that for *raising and pay. we ing a certain sum of money to the vicar; but that is to be « free and clear of all rates, taxes, and deductions whatsoever." Those words must have some meaning. It is urged that they mean free from all rates and taxes payable by the tenant, but no such rates are pointed out, nor any such tax except the land tax. That meaning, therefore, will not satisfy the words of the statute. The act could not pass without the assent of the vicar, his rights being affected by it, and he would, probably, and not unreasonably, insist upon having a specific annual income, free from all deductions. I feel great difficulty in restraining the meaning of the words used in this act; they are large enough to exempt the vicar from all rates and taxes. I think, therefore, that they are sufficient to exonerate him from the payment now sought to be imposed.
HOLROYD, J. I am of the same opinion. By the statute in question, the tithes payable to the vicar were abolished, and an adequate compensation provided for them. It appears to have been intended that the compensation should be free from all rates and taxes, for the sum fixed is not only to be issuing out of the lands, but also to be payable to the vicar. That must mean, that he is to receive and keep the whole sum. According to the argument for the defendant, the vicar would be no way benefitted by the words, " free and clear of all taxes,” &c.; but I think they cannot be considered as inoperative, and that the vicar is entitled to the exemption which he claims.
Judgment for the plaintiff.
*DOE dem. BEACH v. The Earl of JERSEY.
Devise of all my Briton Ferry estate, and all the land, &c. of which it consists; and then all my Peline Castle estate, which, as well as my Briton Ferry estate, lies in the county of Glamorgan, The jury found a special verdict, stating the will of the father of the devisor, and deeds of lease and release executed upon the marriage of the de. visor, and certain schedules thereto annexed, purporting to contain a particular account of the several parishes and tenements comprehended in the estate of the devisor's father. Under the head of the Brecon estates was a parish called Lywell, which contained the messuage for which the ejeciment was brought, and under the head of Gla. morganshire estates was a parish called Briton Ferry. The jury further found that the tenements in the county of Brecon, together with the manor and tenements in the county of Glamorgan, had been known by the name of the Brilon Ferry estate for divers, to wit, fifty years before the death of the devisor : Held, that this was consistent with the other findings, especially the descriptions and names of the tenements in the county of Brecon, and of the manors and tenements in the county of Glamorgan, in the indenture and schedules found in the special verdict, inasmuch as the whole of an estate might be known by one name, and each of its parts by its own particular name: Held also, that it was not sufficiently found that the tene. ments and manors in the said county were so known by name by the devisor, the expression, divers, to wit, fifty years before the death of the devisor, being too loose and indefinite, as it did not denote any particular number of years, but only divers years, nor import that the number of years, whatever it was, was a period immediately pre. ceding the death of the devisor. At the trial, the defendant offered to give in evidence account books of former stewards of the devisor and her predecessors, owners of the lands devised, in which the stewards charged themselves with the receipt of various sums of money on account of the said owners, and amongst others the following entry: “B. F. estate in the county of B.," and also to give in evidence that the lands and tenements mentioned in the declaration, together with the lands and tenements in the schedules respectively contained, had all gone by the name of the B. F. estate, and such of the said lands, &c. as were in the county of B. extended over twelve parishes, and contained above four thousand acres of land : Held, that the words “my B. F. estate, with all the manors, advowsons, &c. thereto belonging," denoted a property or estate known to the testatrix by the name of her B. F. estate, and not an estate locally situate in a parish or township of B. F. ; and that the questions arising upon any particular tene. ment, was properly a question of parcel or no parcel ; and, consequently, that the mai. ters offered to be given in evidence were admissible, and ought to have been received.
At the trial of this cause before Dallas, J., at the Hereford Spring assizes, 1816, a bill of exceptions was tendered as to the admission of evidence offered on the part of the defendant, objected to on that of the plaintiff, and received by the learned Judge. After the usual statement of the pleadings and of the evidence received at the trial without objection, the bill of exceptions goes on to state the evidence objected to, in the following words. “And the counsel learned in the law for the said George Earl of Jersey, the said then defendant, proposed and offered to prove and give in evidence on *the part and behalf of the said Earl, the said then defendant, certain roxy books, being stewards' account books kept and made out by former lo stewards, now deceased, of the said Louisa Barbara Vernon and her predecessors, owners of the said lands, tenements, and hereditaments, containing particulars thereof, in which the said stewards charged themselves with the receipt of various sums of money on account of the said owners, and among other particulars the entry following, to wit, • Briton Ferry estate, in the county of Brecon ;' and also proposed and offered to prove and give in evidence, that the lands and tenements in the said declaration mentioned, together with the lands, tenements, and hereditaments in the said schedules respectively contained, had all gone by the name of the Briton Ferry estate ; and that such of the said lands, tenements, and hereditaments as were in the county of Brecon, extended over twelve parishes, and contained above four thousand acres of land.”
The jury found a special verdict, upon which this court in Easter term, 1818, 1 B. & A. 550, gave judgment for the defendant. A writ of error having been brought, the question was fully discussed before the House of Lords, and in the course of the present session, the following questions were put to the Judges :
First, Whether all the several matters which it appears by the bill of exceptions were offered to be proved and given in evidence on the part of the defendant, and which it so appears it was insisted by the counsel of John Doe, were inadmissible, and ought not to be received in evidence, were matters admissible, and *which ought to have been received in evidence, regard trong being had to the fact, that none of the particulars of the evidence pro- L posed to be given appear to have been stated or required to be stated, in order to prove that all the lands and tenements had gone by the name of the Briton Ferry estate.
Second, Whether the finding in the special verdict that the tenements in * the county of Brecon, together with the manors and tenements in the county of Glamorgan, had been known by the name of the Briton Ferry estate, ani. by no other name, for divers, to wit, fifty years before the death of Louisa Barbara Vernon," (who died in the year 1786,) is consistent with the other tindings contained in the special verdict, and especially with the descriptions and names of the tenements in the county of Brecon, and of the manors and tenements in the county of Glamorgan, in the several inden tures and the schedules thereunto annexed, found and set forth in the said special verdict and in the will of Louisa Barbara Vernon, therein also found and set forth, and which indentures and will, appear to have been respectively executed within fifty years before the death of the said Louisa Barbara Vernon.
Third, Whether upon the whole matter contained in the special verdict, it ought to have been left to the jury to find whether the tenements in the county of Brecon, together with the manors and tenements in the county of Glamorgan, were known by the testatrix by the name of the Briton Ferry estate, or by that name and that name only, for fifty years or some other period before she executed her will and codicil in 1783; and whether, upon the whole matter contained in the special verdict, it is sufficiently found that 89991 the said tenement, *manors, and tenements in the said counties were so
"I known by name by the testatrix.
Fourth, Whether regard being had to the matters contained in the special verdict and the will and codicil therein set forth, the second son of George Bussey Villiers, Earl of Jersey, took any and what estate in the tenements in the parish of Lywell, in the county of Brecknock, mentioned in the declaration.
The following answers of the Judges to these questions, were delivered by the Lord Chief Justice of the Court of King's Bench.
ABBOTT, C. J. All the Judges, except the Lord Chief Raron and Mr. Justice Littledale, who were not present at the argument, have conferred upon the question proposed, and have agreed upon answers thereto.
To the first question.
We are of opinion that the words “ all that my Briton Ferry estate, with all the manors, advowsons, messuages, buildings, lands, tenements, and hereditaments thereunto belonging, or of which the same consists,” found in the will of this testatrix, in which mention also is made of her Penline Castle estate, denote a property or estate known to the testatrix, by the name of her Briton Ferry estate, and not an estate locally situate in a parish or township of Briton Ferry, and, consequently, that a question arising upon any particular tenement, is properly a question of parcel or no parcel; and we, therefore think, the several matters offered to be proved and given in evidence on the part of the defendant were admissible, and ought to have been received. We 4991 think the object for which such evidence was offered was *obvious,
I and must have been understood by the judge and the counsel on each side, without being specially stated or required to be so.
To the second question.
We are of opinion that the finding in the special verdict, that the tenements in the county of Brecon, together with the manors and tenements in the county of Glamorgan, were known by the name of the Briton Ferry estate, and by no other name for diverset to wit, fifty years before the death of Louisa Barbara Vernon, is consistent with the other findings in the special verdict. In the will of Lord Mansell, and also in the deeds of 1740, mentioned in the special verdict, it was necessary to describe and name the particular tenements, because the will gave certain tenements only, and not the whole estate in trust for sale; and the deeds of 1740, were intended as an execution of that trust and a sale under it. The deeds of 1757, were a settlement on a marriage, and in such settlements, as well as other conveyances, it is usual to describe the parcels and enumerate the particulars of the estate intended to be settled ; and we think a description and enumeration of particulars by situation and names is not inconsistent with a name of the whole, as composing an aggregate mass. The whole of an estate may be known by one name, and each of its parts by its own particular name.
† No point having been made on this finding in the Court of King's Bench, it was stated in the report of the case, 1 B. & A. 550, that the jury found that the tenement had been known by that name for fifty years; but in fact the words in the special verdict were for divers, to wit, fifty years.