ing of the rules, orders, and regulations of the society, and according to the statute; and that upon such hearing they were satisfied that Margetts had not infringed any of the said rules, orders, and regulations, and that the sum of 168. was then due to him from the said society for the arrears of his allowance as a sick member thereof; and they, therefore, ordered Soper and Camfield, forthwith to pay to Margetts, the sum of 168., and also the further sum of 118. for the costs which Margetts had been put unto by reason of the stewards refusing to pay him the said allowance; and they further ordered, that Margetts should be continued a member of the society. It was objected for the defendants, that that part of the order which directed that Margetts, should be continued a member of the society was illegal and void, because the justices had power only by the 33 G. 3, c. 54, to adjudicate upon the matter of the complaint before them, and it appeared by the recital in the order that the expulsion was no part of the matter of complaint. The Lord Chief Baron overruled the objection, and the defendants, Soper and Camfield, were found guilty. A rule nisi was obtained in last Michaelmas term, upon the objection taken at the trial, and also upon the ground that the allegations in the indictment were not supported by the evidence, inasmuch as the allegations in the indictment were that Margetts, had made complaint to the justices, first, that he had been expelled from the society; and, secondly, that he had been deprived of the relief which he was entitled to from the stewards of the society for the time being; and the proof was that he had only complained of his having been deprived of relief.

*860]

Campbell, was now heard against the rule, and C. Law, in sup

port of it.

BAYLEY, J. I am of opinion that the rule for a new trial ought to be made absolute. It is our duty to look at the indictment to see whether the charge contained in it was supported by the proof given at the trial; if it was not, then the defendants were entitled to an acquittal. The indictment states that Margetts, had been expelled the society, and had been deprived of certain relief to which he was entitled, and that, thinking himself, and being aggrieved thereby, he made complaint thereof, to two justices, and took his oath before them, and deposed to the truth of the said complaint. The indictment therefore, alleges a complaint to have been made involving two propositions, viz. first, that Margetts, had been expelled from the society; and, secondly, that he had been deprived of relief. The proof was, that the complaint made was confined to one of those propositions, viz. that Margetts had been deprived of relief; and the indictment does not charge any disobedience of the order of the justices in that respect. It then proceeds to state that the stewards were summoned, and that they personally appeared and answered to and showed cause against the complaint and matters required of them in the said summons, and that the justices afterwards made their order that Margetts, should be continued a member of the society. Now that allegation imports that the stewards were summoned to answer and did answer the complaint, consisting of two branches, mentioned in the former part of the indictment. It appears, however, by the proof contained in the recital of the order, that *861] they were summoned to answer one ground of complaint only. I, therefore, think that these allegations were not made out in proof, and that the defendants were entitled to an acquittal on that ground. The indictment then states that the justices proceeded to order that Margetts, should be continued a member of the society. A question therefore, arises whether the order was a valid order, because if it was not, the defendants were not bound to obey it, and consequently are not indictable for disobeying it. The statute 33 G. 3, c. 54, s. 15, enacts, that if any member of the society shall think himself aggrieved by any thing done by any such society or person acting under them, two justices, upon complaint upon oath of such person, may summon the presidents or stewards of the society, or any one of them, if the

complaint be made against the society collectively, and the justices are to hear and determine in a summary way the matter of such complaint, and to make such order therein, as to them shall seem just. The statute therefore, confines the jurisdiction of the magistrates to the subject matter of the complaint before them. They cannot, therefore, adjudicate upon any matter not comprehended in the complaint made on oath before them. Now, in this case the only matter of complaint before the justices was, that Margetts, had been deprived of the relief to which he was entitled. The justices have not only determined that matter of complaint, but they have further adjudicated that Margetts, should be continued a member of the society, and that was not a matter brought before them upon oath. Upon the ground therefore, first, that the allegations in the indictment were not supported by the proof, and, secondly, that that part of the order which directs that Margetts should be continued a *member of the society was illegal, I think that the de- [*862

fendants were entitled to an acquittal, and that the rule for a new trial must, therefore, be made absolute.

HOLROYD, J. I also think that the rule for a new trial ought to be made absolute, because the allegations in the indictment were not supported by the evidence given at the trial, and the verdict was therefore, wrong, and the defendants were entitled to an acquittal. I also think that the justices had power only to adjudicate upon the subject matter of complaint brought before them. If the complaint had embraced the two propositions which the indictment sup poses it to have embraced, the justices would have been guilty of no excess of jurisdiction; but here the expulsion of Margetts was no part of the complaint before the magistrates, and the defendants were not summoned to answer for having expelled him. I therefore, think, that the magistrates acted unlawfully when they ordered that Margetts, should be continued a member of the society, and that the defendants were not bound to obey that part of the order. Upon the ground, therefore, that the allegations in the indictment were not supported by proof, and that the defendants were not bound by law to obey the order made by the magistrates, I think, that there ought to have been an acquittal, and consequently, that the rule for a new trial ought to be made absolute.

Littledale, J., concurred.

Rule absolute.

*CHATFIELD, Clerk, v. RUSTON.

[*863

Where a private inclosure act (reciting that it was expedient that the tithes in the parish should be extinguished, and an adequate compensation should be made to the vicar. enacted that the commissioners should, in a certain mode, ascertain what yearly sum the tithes were worth, and that there should be issuing and payable to the vicar out of the lands, such yearly sum, "free and clear of all rates, taxes, and deductions whatsoever:" Held. that the vicar was not rateable to the poor in respect of the yearly sum so ascertained and paid to him.

REPLEVIN. AVOwry by the defendant, as overseer of the poor of the parish of Chatteris, in the county of Cambridge, that he seized and took the plaintiff's goods and chattels by authority of the 43 Eliz. c. 2. Plea in bar, that by an act of the 49 G. 3, entitled "An act for inclosing lands in the parish of Chatteris, in the isle of Ely, in the county of Cambridge," it was, amongst other things, recited, that it was convenient that all the tithes both great and small, arising and renewing as well out of, in or upon the said open fields, commonable lands, commons and low grounds, by the said act intended to be divided and allotted, as also out of, in or upon such of the homesteads, gardens, orchards, and inclosures within the said parish, as were liable to the

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 Chatteris, 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

*inclosures, and to inquire of the clerks of the market, or of the inspec*861] tors of corn returns at Wisbeach, 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 rates, taxes, and deductions whatsoever, out of the said homesteads, gardens, orchards, and inclosures respectively, 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, vicar of the vicarage of the parish of Chatteris aforesaid; *and so being *865] 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 November, in the year of our Lord 1823, upon the said plaintiff, for and in respect of the said corn rents, so ascertained and directed to be paid to the said plaintiff as aforesaid, in and by a certain rate and issessment, 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.

The

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. 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 appear to have been intended to place the vicar in a better situation than he was before, nor to repeal the 43 Eliz. c. 2, unless that *effect

*866]

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. Horne, 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 [*867 8 Mod. 61, and by that report it appears, that the parson let the tithes, 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. Michael's, 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 3007., 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 exemption 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, 1 T. R. 219. No doubt the commissioners, in making their valua[*868 tion 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 rates, &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 provision for the extinguishment of tithes, comes that for *raising and pay. *869] 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.

*870]

*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 devisor, 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 ejectment was brought, and under the head of Glamorganshire 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 Briton 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 tenements 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 preceding 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