Coningsby Norbury, Esq. v. The Honourable and Reverend Pearce Meade, and Elizabeth his Wife, and Samuel Isted, Esquire [1821] UKHL 3_Bligh_211

UKHL
Coningsby Norbury, Esq. v. The Honourable and Reverend Pearce Meade, and Elizabeth his Wife, and Samuel Isted, Esquire
[1821] UKHL 3_Bligh_211
REPORTS OF CASES HEARD IN THE HOUSE OF LORDS UPON APPEALS AND WRITS OF ERROR, And decided during the Session 1821, 2 Geo . IV.ENGLAND.

( on appeal from the court of exchequer. )

No. 13

Coningsby Norbury , Esq. Appellant v. The Honourable and Reverend Pearce Meade , and Elizabeth his Wife, and Samuel Isted , Esquire Respondents1821 .having the impropriate rectory might convey the tithes to the other body holding the lands. It is the case of a right of exemption by conveyance, and semble . that it is a title which admits of proof by presumption.A Plaintiff in equity must state his title in his bill, and, unless it is admitted by the Defendant, must prove it.In suits for tithes, the jurisdiction of a Court of Equity is limited to discovery and account. The title to tithes, as of other real property, is a question of a legal right upon which a Court of Equity has no jurisdiction; and if the title is disputed and doubtful, the Court has no right to make a decree.A person suing as lay impropriator, for the tithes of a parish in which there has been within living memory a parish church and a burial ground, in order to establish his title, must show that there has been an appropriation, and when it was made; because if it was not prior to the 15th Ric. II. c. 6. it is further necessary, according to that statute, that an endowment of a vicarage should be shown, and if the Plaintiff does not allege and prove either that the appropriation was before the 15th Ric. II. or that a vicar has been endowed, primâ facie primâ facie the appropriation is invalid.Lands which had belonged to one of the lesser monasteries were not exempted as such from the payment of tithes in the hands of the grantees of the Crown, under the stat. 27 H. VIII. c. 20. At common law it has been held, that if such lands were otherwise discharged of tithes, the discharge being terminated by the dissolution of the monastery, the right of the ecclesiastical rector revived: but as between two monasteries, the one holding an impropriate rectory, and the other lands within the rectory, whether the same doctrine is applicable— Quære. Semb Quære. Semb . that the case is not similar to a claim of exemption, as derived from a religious order, nor from unity of possession, but both bodies being capable of making an alienation, the monastery

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Upon a lease of tithes, by a lay impropriator, if the tithes of particular lands are excepted, it might admit of the construction that the lessor is entitled to that which he excepts. But if a former owner of the tithes upon a lease has made a parol declaration that he is not entitled to the tithes of those lands, that declaration is in itself important evidence, and gives a construction to the exception in the lease.The original Bill filed in this cause in Easter Term 1810 stated that the then Complainant, the Bishop of Dromore, in Ireland, was seised of the impropriate Rectory and Parsonage of the parish of St. Nicholas, in Droitwich (Worcestershire), and thereby entitled to the great and small tithes arising within the parish. That from the time of Plaintiff's seisin the Defendant held and occupied a certain farm in the parish, for which he had paid tithe by an annual composition till Michaelmas 1807, but that since that time he had refused to pay the Plaintiff such composition for the small tithes; and that besides the said lands, the Defendant occupied other lands, called the Lower Friars (about seven acres), on which he had reaped and mown grain, pulse, hay and clover, and had agisted barren cattle, the tithe of which he had not paid. Upon this statement the bill prayed an account and decree for the single value, &c.The Defendant by his answer denied the title of the Plaintiff to all tithes as impropriate Rector; admitted his possession of the lands mentioned in the Bill; but contended, as to the farm before mentioned, that the composition which had hitherto

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The Appellant also in his answer admitted his occupation, and having had titheable articles upon the lands called the Lower Friars, without paying or making any satisfaction for the tithes; and stated that he occupied those lands by virtue of a lease granted by the Marquis of Exeter, then deceased, and his wife, formerly Emma Vernon, the then owners of the land; and that he believed the lands called the Lower Friars were part of the possessions of the dissolved Priory of the Friars Augustines, in Droitwich, commonly called the Augustine Friars, and were granted by letters patent, bearing date the 24th of February, in the 34th year of the reign of King Henry VIII. to John Pye and Robert Were alias Browne, in fee; and the same were afterwards, by bargain and sale, bearing date the 2d of February, in the 2d year of the reign of King Edward VI. duly conveyed to Sir John Packington, knight, his heirs and assigns, who at that time, as the Appellant had been informed, was, or claimed to be, entitled to the tithes of the lands. The Appellant, by his answer, further stated, that he believed that the lands and the tithes thereof ( in case the said Sir John Packington were entitled thereto ), were afterwards duly conveyed and granted by divers mesne conveyances to several persons, and at length were conveyed and granted to, and had been vested in, an ancestor of Emma Vernon, one of the lessors

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The cause being at issue, witnesses were examined on the part of the Plaintiff in the suit, but not on the part of the Appellant. The parol evidence on the part of the Plaintiff, who deduced his title to the impropriate Rectory by descent from Sir John Packington, tended principally to show that both the great and small tithes had been always considered as included in the composition which had been paid to the Plaintiff, and as due to him in quality of lay impropriator, and not as vicar, or to any other ecclesiastical person, there having been no such person within memory; and that no claim to any of the small tithes had ever been set up by any other person; and several old leases of the great and small tithes by Plaintiff's predecessors were produced.

The cause came on to be heard and was argued

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The cause stood adjourned from the 6th to the 20th day of May 1816, on which latter day the Court * below delivered their opinions, seriatim , and ordered and decreed, that an account should be taken of the tithes demanded by the original Bill against the Appellant, with costs.The Appellants, at the hearing, proposed to read a conveyance from Sir John to Thomas Packington, and the will of Thomas, devising the rectory to Mary Packington, through whom the Respondents claimed † ; but the Court intimated that such evidence

Footnote

* Dissentiente, Wood, B. See 2 Price, p. 338.† It appears that these documents were entered as read. See the addit. Appx.

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The Respondents became entitled, and were made parties to the suit by a supplemental bill, as the devisees and representatives of the Bishop of Dromore, who died pending the original suit.The Appellant in the session 1817 presented a petition against this decree, in so far, as an account was thereby directed of the tithes of the Lower Friars, praying that so much of the decree might be altogether reversed, or that a trial at law might be directed upon the legal right before any account should be decreed.7 August and 14 February 1821.For the Appellant, it was argued that tithes in the hands of laymen are now of a different nature from what they were at common law while they constituted the revenues of ecclesiastics; for by the several statutes respecting the dissolution of monasteries and religious houses, they were made and declared, in the hands of laymen, as temporal inheritances and lay-fees; and more particularly by the statute of 32d Henry VIII. c. 7, that lay persons shall have the like remedies for recovery of tithes in temporal Courts, and, consequently, subject to the like limitations and restrictions as are applicable for lands and other hereditaments. Tithes are thereby also declared to be the subject of, and pass by, the like conveyances and assurances as other temporal possessions; and at this day tithes have all

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In favour of Holy Church, the policy of the law was that laymen should not prescribe in non decimando , thereby spoiling spiritual persons of their revenues. When tithes were converted into layfees the maxims referrible to presumed grants, descents, discontinuances, non-claims, &c. necessarily follow, which were nothing more than the wise arts and inventions of the law to protect and quiet the possession, and strengthen the right of purchasers. The fact of long and uninterrupted retention of the tithes in question creates a legal right, which ought to be tried at law; a Court of Equity has no right to decree upon depositions against it. The adverse claim is against long and quiet possession and enjoyment, and to overturn property in which the owners have thought themselves secure, now beyond all memory of writing, or man. A Court of Equity cannot set aside or decide against the consequences of this legal right; it would be determining a right against constant possession, and constant usage and enjoyment. There is nothing a Court of Equity can not presume in favour of possession. Possession is every thing; estates are bought by it, and held upon the faith of it; a claim against long possession is always

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The circumstances of this case amount to a long and uniform non-payment and retention of the tithes by the owners and occupiers of the land in question; and not merely a non-claim, but positive disclaimer on the part of one or more of the impropriators, particularly William Clieveland, under whom the Respondents derive title, making several leases of the tithes, with an exception of the tithes from the lands in question, accompanied at the same time by a declaration from the lessor to the tenants that such exception was inserted because the lands were tithe-free.It is true the property in question is small, but the principle to be established by this decision confessedly great. Prescription has no place here; presumed grant is the basis upon which the Appellant rests his defence; arguments of inconvenience deserve attention; tithes of great value in this kingdom are enjoyed under titles similar. The consequence of removing land-marks is dangerous; and why, in the legal code, are tithes to present an anomaly? Why are ingredients which strengthen the title and secure the possession, with reference to other property, to weaken and destroy in this? Why furnish a precedent to shake and render doubtful those rights which length of time and quiet enjoyment had taught the possessors to believe irrevocably fixed in them? A precedent which will encourage innovating speculators to set up new tithe-claims, disturbing the peace of their neighbours in many

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For the Respondents, the case was put upon the ground of the maxim, supported by a long series of uniform decisions, that there can be no prescription in non decimando .An objection * being suggested for want of proof of the appropriation before the 15 Ric. II. or the endowment of a vicarage, an observation, said to have been made by Lord Chief Baron Thomson (and not noticed in the report of the case,) “that as there was a place of worship there might have been a vicarage endowed,” was cited for the Respondents, to which Lord Redesdale replied, that there could be no parish without a church, and that there might be a chapel also; that the original appropriation of tithes was to the incumbent of the church of the parish, and primâ facie primâ facie belonged to him; but that this had been modified, and certain portions of the tithes might be vested in other persons; but it was an exception to the general law.Upon the objection as to the deficiency of proof of title * in the Plaintiffs, it was urged that the property was conveyed as a rectory in 1642, and devised as such in 1663; that the documents showing title in the Plaintiffs were produced and relied upon by the Defendants; that a grant from the Crown was the best but not the only mode of proof, and the fact being admitted by the Defendants, that there was no need of proof.

It was further urged on behalf of the Respondents

Footnote

* See post . the observations of Lord Redesdale, pp. 224 and 233, et seq .

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On behalf of the Appellants, in reply, upon the objection as to the double pleading of the answer, it was urged that such pleading was allowed in the case of Jennings v. Lettice ‡ ; that the words “or otherwise,” which seemed indefinite, might refer to conveyances under the statute of Henry VIII. or other modes of conveyance which might be presumed in favour of the Defendant.For the Appellants, The Attorney-General, and Mr. H. Martin.For the Respondents, Mr. Wetherell, and Mr. Roupell.

Footnote

* 3 Price, 528.† Scott v. Airey , 3 Gwill. 1174, citing Rotheram v. Fanshaw , which has since been reported by Mr. Eden, vol. i. p. 276.‡ 3 Gwill. 952.

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Lord Redesdale <link type="footref"><sup>*</sup></link>: —It may be important to consider how unity of possession may affect the right to tithes. Suppose I had a rectory impropriate, and lands within the rectory which I had leased exempt from tithes, and then conveyed the reversion of the lands as I held them, that would be exempt from tithes. The rectory and the lands having been both in the Crown it is important to inquire whether the rectory or the land were first conveyed. Suppose the grant, and the record of the rectory and of the lands, to have been lost, would not the actual state of things, the enjoyment, furnish a presumption of title?

The Lord Chancellor: —In Scott v. Airey † it was decided that a Court of Equity in such a case would not interfere. In one of the cases Baron Eyre said if these doctrines were to be maintained the Courts had gone presumption-mad.

The question is, whether in the face of enjoyment we can interfere; whether we must not leave it to law? The Court of Exchequer, in those cases in which they refused to act did not intend to determine whether there was or was not a title to the tithes, but merely that there was not sufficient ground to warrant a Court of Equity in disturbing the possession.

Lord Redesdale: —The real question in Scott v. Airey was, whether there was not evidence of

Footnote

* The following observations were interlocutory, and occurred in the course of the argument.† 3 Gwill. quà suprà quà suprà .

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The Lord Chancellor: —In the case of a spiritual rector it has been held that there can be no prescription in non decimando . If non-payment of tithes is a different thing, and sufficient to ground a presumption, a title may always be made out; for you may presume first a portion of tithes, and then the loss of a grant * .

Two preliminary questions may be raised in this case, the first, whether the title of the Plaintiff is sufficiently set out in the bill, and supported by proof in the cause? Secondly, whether the points of defence raised by the answer are sustainable?

Lord Redesdale: —According to ancient practice, in suits by lay impropriators, the production of the original grant, and a regular deduction of the title by the necessary documents, was required. That practice was altered in consideration of the frequent loss of the instruments of title; but it is still necessary to produce the original grant, and to prove a possession corresponding with the title. If the impropriation has taken place since the 15 R. II. an endowment of a vicarage by tithes, salary, glebe, or otherwise, must also be proved.

Footnote

* See in Rose v. Calland , 5 Ves. 186, the remarks of Loughborough, C. on the case of Nagle v. Edwards ; 4 Gwill. 1442. See also Lord Petre v. Blencoe , 3 Anst. 745.; Crawthorn v. Taylor , 2 B. C. C. 112; Gurnley v. Burt , Bunb. 169; Penny v. Hope , Bunb. 115; Barwell v. Coates , Id. 129.

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The Lord Chancellor: —A lay impropriator must claim under his deeds. If he shows uniform exclusive possession, that may raise a presumption in the absence of deeds; but here, neither the title by deed, nor the perception of the tithes, is shown; and yet it is required of the Defendants, if they claim by title, that they should give that strict proof which the Plaintiffs fail to give. The question is, whether they have evidence equivalent to the production of deeds? They claim contrary to the common law. They must show a legal commencement of their title. They must show an impropriation before the 15 Richard II. or the 4 Henry IV., or they must show the endowment of a vicarage. The first of those statutes enacts, that there shall be no impropriation without such an endowment. The second requires that a vicar should be canonically instituted. There is no such vicar in this parish; and the title of the Plaintiff by deed or possession is not clearly made out; the deduction of title in the Plaintiff may be material to the defence. The decision of this case has proceeded on the single ground, that a prescription in non decimando is illegal; but if that is alleged as matter of title it may raise a different question.

At the conclusion of the argument, The Lord Chancellor made the following observations:—This being the first case involving the particular point, which is of great consequence, and a noble and learned Lord * , who has given particular attention to the subject, being absent, the House ought not to

Footnote

* Lord Redesdale, who had left the House before the conclusion of the argument.

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Footnote

* Mr. Hall.

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It appears to me that this is a case extremely simple, for the words stand thus * :
“That the Appellant, soon after filing the same original bill, put in his answer thereto, declaring his ignorance of the Plaintiff's alleged title, but admitting the Appellant's occupation, and having had titheable articles upon the lands in question, without paying any satisfaction for or in respect of the tithes; and stating that he was in the occupation of the lands in question by virtue of a lease granted thereof by the late Marquis of Exeter, then deceased, and his wife, formerly Emma Vernon, the then owners of the land, and that he believed the lands,”
(not the lands and the tithes, but “the lands) called the Lower Friars, were part of the possessions of the dissolved priory of the Friars Augustines in Droitwich, commonly called the Augustine Friars, and were granted by letters patent, bearing date the 24th February, in the 34th year of the reign of King Henry VIII, to John Pye, and Robert Were alias Browne, in fee, and the same” (that is, the lands) “were afterwards, by bargain and sale, bearing date the 2d of February, in the second year of the reign of King Edward VI, duly conveyed to Sir John Packington, knight, his heirs and assigns,” (and then, with respect to the title to the tithes, all he says is this,) “who at that time, as he had been informed, was, or claimed to be, entitled to the tithes of the lands;” under what sort of claim, or how

Footnote

* In the Appellant's printed case.

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This is certainly an important case, and for these

Footnote

(a) Charlton v. Charlton , Gwill. 705; &c. of Bury v. Evans , id. 757; Fanshaw v. Moore , id. 780; Jennings v. Lettis , id. 954.

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21st Feb. 1821.

The Lord Chancellor: —Upon looking to the pleadings and proofs of this cause, I mean to propose that one counsel on each side should be heard upon two points; the first is, the title of the Plaintiff not being admitted by the answer, whether it is sufficiently proved by the evidence ; and the other is, supposing the title to be sufficiently proved, whether the pleading, on the part of the Defendants, is the proper pleading to bring forward the points on which the Defendant relies. I propose this course because it is highly expedient that when you are deciding a question of so much importance as the principal point in this cause, care should be taken that the proceeding of the House should not be represented hereafter as a proceeding not quite clear in point of pleading.

It was thereupon ordered, on the motion of the Lord Chancellor, that one counsel on each side be heard upon the question whether the title of the Plaintiff is sufficiently set out and proved; and supposing it to be so, whether the points insisted upon by the Defendant at the hearing are properly pleaded.

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Mr. Martin and Mr. Wetherell accordingly argued these points before the House, and the cause then stood over for judgment.

The Lord Chancellor: —In the case of Norbury v. Meade , if it should appear to those who are to advise the House, that it is necessary to make any alteration in the judgment, it cannot be proposed without addressing your Lordships at very considerable length upon the doctrines with reference to cases of that nature. It is, therefore, necessary to ask of your Lordships for some further time to consider the proposed judgment.

6 April 1821.

Lord Redesdale: —The question in this cause was considered as principally depending upon this, whether a grant of tithes, from a lay impropriator to the owner of certain lands in the parish of St. Nicholas in Droitwich, ought to be presumed or not; and the arguments principally went originally upon that ground. A doubt was then stated whether the Plaintiffs in the suit, who are the Respondents in this Appeal, had or had not sufficiently shown their title , so as to give them a right to demand of the Court a decree in their favour. The Court of Exchequer have, upon the hearing of the cause, made a general decree with respect to certain lands, as to all tithes, great or small, with respect to which the defence was of a different description. As to the lands which are the subject of this Appeal, they have also made a similar decree, being founded upon the supposition that the defence set up by the Defendants was insufficient, who insisted

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The Plaintiff in this suit must recover by force of his title; and supposing the defence to be ever so defective, if the Plaintiff does not show a title the Court has no right to make a decree in his favour unless that title is clearly admitted by the Defendant; but here the Defendant unquestionably disputed the title. The consequence was, therefore, that the Plaintiff was bound to prove his title.The claim was of all tithes, great and small, within this parish; and it appears from the evidence that there was a parish church, and a burial ground appertaining to that church, and therefore that there had been at some time a rector of that church, in whom all the rights of that church were vested. Undoubtedly there might have been an appropriation of that church, but it was very material to ascertain when that appropriation was made, because if the appropriation was made subsequent to the 15th of Rich. II. it could be no lawful appropriation without the endowment of a vicar; and if there was no vicar endowed the appropriation was

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By some means, however, this appropriation was in the hands of one of the monasteries which were dissolved in the reign of Henry VIII.; and there was also in the hands of another monastery a property of land, including the lands which are the subject of this Appeal. The claim set up by the Plaintiffs in this suit was to the whole of the tithes, great and small, of these lands. It is clear from the evidence that the Plaintiffs were not in possession of these tithes, and that the persons, the owners of these lands, and these tenants have constantly insisted that these lands were not liable to pay tithes to the persons who claimed the impropriation.It appeared that the claim to the impropriation was at one time in the same family in which the lands, now the subject of litigation, were also vested, under the statute of Henry VIII., which had

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But the Plaintiffs in the suit, according to what has been offered in the Court below, must found their claims upon presumption. They show no title directly; it can only be raised upon a presumption derived from their receipt of some species of tithes that they claim a right to, the receipt of all the tithes within the parish. The evidence of title on the part of the Respondents is only the evidence of a qualified possession; and being so, it raises clearly a presumption of title, but it does not show how it commenced. The title, so far as they do show a title, or that from which a title may be presumed, does not include the lands in question,

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The Court below seem to have proceeded upon the general ground, which is applicable, unquestionably, to the case of an ecclesiastical rector, that a prescription in non decimando is purely illegal; that there can be no such prescription. There might, it was admitted, be a right by grant, but then that grant must be shown: There might be a right under a reservation by the statute of Henry VIII. dissolving the greater monasteries, but that circumstance does not apply to this case; and the Court proceeded to take it for granted that the Plaintiffs in this case had the rectory, and having the rectory, that a prescription in non decimando was a thing purely illegal against an impropriator as well as against an ecclesiastical rector.Now-what is the ground of that doctrine in respect to tithes? Before the Reformation, if land was within a parish, the incumbent, the rector of that parish, must be entitled, to the tithes of that land, or to some compensation for those tithes, by modus or composition real, which comes to the same thing, unless the lands for which the exemption was claimed were lands that were vested in a monastery claiming an exemption, under certain circumstances, from the payment of tithes. The ground of this was, that though the rector, under certain

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After the Reformation a number of rectories and lands vested in monasteries were vested in the Crown by the two Acts of Parliament of the 27th and 31st of Henry VIII., the latter reserving to the lands of a monastery discharged from tithes at the time of the Dissolution the same discharge in the hands of the Crown, or the grantee of the Crown, the former statute not containing that provision But no title to discharge could be set up under the monastery through which the lands in question were taken, against a person clearly entitled to the rectory of that parish, neither before nor subsequent to the Dissolution, because if there had existed such a right prior to the Dissolution, as to the lesser monasteries not being reserved, that right could not prevail.The lands and the rectory were united in the Crown by different titles; this appears clearly with respect to the land, and it must be to a certain degree presumed with respect to the rectory, because the persons who claim the rectory as a rectory impropriate cannot claim that but by a grant of the Crown; and though there is no evidence whatsoever with respect to the grant of the rectory, yet as they must claim under a grant of the Crown, they cannot pretend to say that their title may not be affected by that circumstance, because the lands, when they were in the hands of the Grown, might be occupied by the lessee of the Crown, discharged of tithes by the unity of possession in the Grown;

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If the Respondent in this case had shown that the King demised the lands separately, and the rectory, including the tithes of the land in question, had also been demised separately, so that there was a separate grantee of the tithes at the time of the grant of the lands by the Crown, that would tend to rebut such a presumption; but there is not the slightest evidence of that description. The Respondents have not done what they ought to have done, and what the Court ought to have called upon them to do before they proceeded farther in the cause; they ought to have called upon them in the first instance to have shown the grant of the Crown under which they claim, for they could have no title except under a grant of the Crown; and therefore, unless the Defendant fully admitted the right of the Plaintiff,

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But why is there to be a presumption on one side, and no presumption on the other? It seems to me extraordinary that a Court of Equity should hold that there may be a presumption in favour of a rectory impropriate, but that there can be no presumption against a rectory impropriate. What difference is there between the title of a lay rector impropriate to the tithes of land, and the title of the other person who holds the lands from which the tithes are claimed? They are both equally fees; both equally capable of alienation; and why there should be a presumption in favour of a lay rector, and no presumption in favour of the occupier of the lands, I must confess I cannot conceive. In both cases it must be founded upon the very probable supposition of the loss of instruments. I believe it will be found that the titles to half the estates in the kingdom would be held to be bad if there was no presumption of the loss of instruments. In the case of rectories impropriate very few persons would be

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It appeared from the evidence that both the rectory and the lands came to Sir John Packington, and that Sir John Packington having the rectory granted the lands. When he conveyed the lands, could he not convey them as he held them? Is it probable that he conveyed them subject to tithes, holding them himself not subject to tithes, though he might, if he thought fit, have made a separate demise of the tithes and of the land. That circumstance alone seems to afford ground of presumption, and a very strong ground of presumption, especially coupled with this, that there is no evidence of the persons, who afterwards derived title from Sir John Packington to the rectory impropriate, having ever received or ever claimed tithes of these lands; but on the contrary, that the person under whom Mrs. Meade now claims had in effect said that he was not entitled to the tithes of these lands; that these lands were discharged from tithes. That disclaimer on the part of an ecclesiastical rector would not operate much, but a disclaimer on the part of a lay rector ought to operate in the same way as if a man seised of lands at this day had a right of way or any easement over the lands of another; I cannot distinguish between them. In the case of a right of way over

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All the circumstances of this case afford strong grounds for presuming that if the lands were subject to the payment of tithes after the Dissolution of the Monasteries, and if the title to the rectory and the title to the lands had passed to distinct owners, and never had been united in one person, that the person who had the impropriate rectory had, in some way or other, discharged those lands from the payment of tithes, that is, conveyed the right to the tithes, that is the nature of a discharge. If a deed were executed which said no more than “I discharge these lands of tithes,” it would operate, because no person claiming under the party discharging could claim in opposition to his deed, he having a right to discharge them; and although

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Either Sir John Packington must, after he conveyed the lands, have continued to receive the tithes, notwithstanding his grant of the lands, or he did not continue to receive the tithes; if he continued to receive the tithes, then that must, in some way, have been capable of proof by evidence, that is, if the same receipt of tithes (which probably would have been the case) had been continued down to a late period; whereas the evidence is the other way, that never, at any time, were tithes of these lands demanded by the person claiming the impropriate rectory under Sir John Packington. This is a circumstance very strong to show that either the lands were considered by Sir John Packington as discharged from the payment of tithes by some prior deed, and therefore conveyed by him as so discharged; or, that if they were not so discharged prior, yet when he conveyed the lands he conveyed them as he held them, not subject to the payment of tithes.If he made such a conveyance his subsequent conveyance of the rectory would not carry these tithes, because he had abandoned his title to them; he had no right to convey them, and this makes it

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The Court of Exchequer seems to have proceeded upon the ground that they were only to look at the defence, that they had no occasion to look at the title of the Plaintiffs, and looking at the defence alone, on that they proceeded; and they held that that defence was not good, and why? because it would not be good against an ecclesiastical rector. Now I apprehend that there is such a clear distinction between an ecclesiastical rector and a lay impropriator, that reasoning applicable to the case of an ecclesiastical rector is not applicable to the case of a lay impropriator, unless it can be shown that it is so applicable. The ecclesiastical rector is incapable of alienating; the lay impropriator is capable of alienating; and from the time of the dissolution of the monasteries the lay impropriations, as vested in the Crown, became as much lay-fees as the lands out of which the tithes issue, and there fore I cannot conceive upon what ground there can be a distinction between the case of a person claiming a lay impropriation, and the case of a person

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The decision of the Court of Exchequer in this case is upon a legal right; they have said that the Plaintiffs in the suit in the Exchequer have a legal right to these tithes, unless the Defendant can show that they have it not. Now in what case is a Court of Equity authorized to decide on a legal right? There is no equity in the case of tithes; it is merely an incident to a right to an account. The person who claims in a Court of Equity a right to a decree for tithes, generally speaking, claims it merely as incident to a right to have an account of what the tithes are, or discovery from the Defendant of the tithes that have arisen from his lands, and then to an account of the tithes which have so arisen; and the equitable remedy is merely an

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The Court of Exchequer, in this case, assumed the legal right, and entered simply into the question whether the Defendant has shown a ground to controvert that legal right. Now in this case the Plaintiffs not having shown a clear legal right, the Court of Exchequer had no right, as a Court of Equity, to decree the account as incident to a discovery of the quantity of tithes subtracted, which is the ground of the decree of a Court of Equity on this subject.The equity in a case of tithes arising therefore only, as I conceive, incidentally from a clear legal title, where a clear legal defence is made in opposition to that title, the Court had no right upon the title shown to pronounce the decree they have pronounced. The Court ought not to have pronounced any decree in this, case in respect to the tithes of these lands; and with respect to the decree actually made in this case, I do not see how the Court could have decreed an account of all tithes, both great and small, there being nothing in this case to show that the Plaintiffs have a good title to all tithes, great and small.

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In the first place, I apprehend there never was a time when an impropriation could be made without providing, in some way, for the service of the church. After the 15th of Richard II. there must be an endowment of a vicar. Before the 15th of Richard II. there ought to have been either a vicar endowed, or the service of the church performed by a curate. Now what is the case here? There is no service; the church itself has fallen totally to decay; a great part of it has tumbled down, and the remainder of it was removed by the late impropriator. There must be, therefore, something with respect to this title which does not appear to the Court. There must have been, at some time, service performed at that church; even within memory burials have been performed; even within these twenty years persons have been buried in the churchyard in a parish, where, the Court say, the Plaintiffs in this case are entitled to all tithes, great and small. If there was an endowed vicar he must have something out of the rectory; and it is incumbent on the rector to show what that endowment was, and how it was limited. It is true that the vicar might not be endowed with tithes; he might be endowed with land, or with an annual payment; but the endowment, whatever it might be, ought to have been shown, in order to entitle the impropriate rector to all the tithes. If the impropriation was before the statute of endowments it was not absolutely imperative by law to endow a vicar, yet there ought to have been some evidence given of the impropriation, because all, except, perhaps, very ancient impropriations, at least, I believe all the impropriations in the

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With respect to that part of the case which is not

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Under these circumstances, therefore, the Court of Exchequer ought to have dismissed this Bill with respect to these lands, and directed that the Plaintiffs, the Respondents here, should file a new Bill, if they thought fit, stating their title, and proving it by the production of those documents which the Court ought to have required to be produced, and by showing how it has happened that there is not in this parish a vicar endowed, or a person acting as curate, or in a capacity of that description, for the service of the church, so that the church itself is now gone into decay, and this parish is loaded with the payment of tithes, having no church-duty performed in it, for which tithes were given: under these circumstances the claim of the Respondents requires to be supported by the strongest and clearest evidence; and here there is an absence of all evidence, and the title is denied on the part of the Defendant. I think the proper way to dispose of

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The Lord Chancellor: —In this case I withhold my final opinion till Monday morning, because I look upon it as a case of great importance, though it relates to a property of small value; yet in my view it may not be of so much consequence as it appeared to be when the learned Counsel first addressed your Lordships. It had escaped me, till I looked over the papers this morning, that the appeal was not against the whole of the decree; that the Defendant's appeal is only against so much of this decree as relates to the tithes of the lands called Great Friars. The appeal is brought here for the purpose of controverting a doctrine (which has been understood as hitherto unsanctioned,) by arguments not affecting any decision of the House of Lords, but the doctrine of the Courts of Exchequer and Chancery, both acting as Courts of Equity, affecting the practice of those Courts in matters of tithes, where the title of a lay impropriator is in question.

The points principally argued at the Bar were, that in this case the Court of Exchequer ought not to have decreed as they have, because it should have been presumed that there was a title in the Defendant. Now if I understand the decisions that have been made in the Courts below, they authorize me to say, that in the cases to which I have been

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In the present case the Bill is brought for the payment of tithes of all the lands occupied by the Defendant, including the lands called the Lower Friars, which formerly belonged to a monastery, the rectory at the same time belonging to another monastery. The Defendant not admitting the Plaintiff's title he must show, by evidence, that he has a title; and upon

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But here we have an embarrassment, for the Defendant does not appeal against that part of the decree which directs an account of the small tithes, generally, which according to the whole evidence the rector never enjoyed; but submitting to account for the tithes of other lands, which is, pro tanto , admitting the rector's title, he does not submit to account for the tithes of the Lower Friars, which form the subject of the present dispute. I was startled when I first found that, because it struck me, as raising the question, whether he had not admitted the rector's title, but that opinion is much too strong if the justice of the case does not require me to give it.The question then is, Has the Respondent shown a title so as to bring himself within the cases, and to make it necessary to discuss, for the first time, a case of this kind which has come to the House of Lords? Has he so proved a title as to make it necessary for us to discuss whether the species of decisions to which I have been alluding have been right or wrong? Now I apprehend the nature of the title he has proved is neither more nor less than this; the proof applies to enjoyment, and it applies also to the contents of certain instruments which are produced. With respect to enjoyment, he never enjoyed the tithes of this parcel of land which, as as well as the rectory, belonged to a monastery. I take that to be material; and it is likewise in evidence that he did not enjoy the small tithes.

There is a statement in the answer which is not

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But it is said, although there has been no such enjoyment, here is the character of impropriate rector vested in the plaintiff. Now it must depend upon the evidence whether the character of impropriate rector is vested in this plaintiff so as to bring him within those decisions, be they right or wrong, to which I have been alluding. How does that stand? He does not produce any grant from the Crown; he does not account for the circumstance that no grant is produced; he does not advert to the fact that the property both of the one nature and of

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I concur with the noble Lord in his statement, that after it has been shown that the Crown has granted the rectory, if there is possession and enjoyment on the one side, and on the other hand nothing to qualify or limit that possession

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After this conveyance I do not recollect a conventional deed of any kind being proved, and then you come to the enjoyment of Mr. Clieveland, who appears to have been the impropriator. Leases granted by him are in evidence, expressed in terms equivocal and ambiguous; but it is proved that he made a declaration, which has been treated as a matter of little importance, not only in the argument here, but in the judgment of the Court below. But to me it appears a declaration of very considerable consequence, because, if both as against an ecclesiastical rector and a lay rector, by asserting a title to tithes, in title-deeds and otherwise, the relief in equity for those tithes is prevented, what is that but a declaration made behind the back of the rector, and received behind his back? Is that much stronger than the express declaration of a man who would be entitled to all the tithes, that he is not entitled to the tithes of such particular land? It seems to me an extremely strong thing; but it does not rest there, because this bill, being filed in 1810 by a lay person for an ecclesiastical right, in the last lease made in 1801 the tithes of these lands are excepted. I am aware that where a person makes a demise, and excepts something, it may be

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The inclination of my opinion is, that as this case stands before us, we have enough, without entering into the great questions that have been argued at the bar, to enable us to say that the Plaintiff has not made out a case to recover; that he has not gone far enough to raise the necessity of agitating the questions discussed at the bar, but that you may safely say his bill ought to be dismissed, without prejudice to any other bill being filed; and that notwithstanding the embarrassment arising from the Defendant's submitting to another part of the decree. I cannot at present foresee, even with the anxiety I have and profess to have not to disturb other cases, that I am likely, by reconsideration, to alter the opinion which I have now expressed.9 April 1821.

The Lord Chancellor: —In this case I propose to adopt the following judgment, because it appears to me that the circumstances of the case make it altogether unnecessary to examine, either by way of confirming or by way of weakening the doctrine of any of the cases that have been cited at the bar; I mean as to what is to be done in cases either of lay impropriators or ecclesiastical rectors, with respect to tithes of particular lands which have not been retained or enjoyed in pernancy under colour of title. In this case the Plaintiff's title

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The manner, therefore, in which you should proceed should be, “to reverse the decree of the Court of Exchequer, so far as the same is complained of by the petition of appeal.” You will recollect that the Appellant submits to the decree as far as the tithes of other lands, including the small tithes, are concerned; and I mention the circumstance in order that it may be observed that we have not overlooked it, because it would be very difficult to account for this reversal of ours without affecting the decree for the small tithes, as well as the decree for the lands in question, if it had not been that the Appeal is confined to the latter, and therefore cannot touch the former. “The House may further order, that the original bill in the Court of Exchequer, so far as the tithes of the lands called the Lower Friars, in the occupation of the Appellant, are claimed thereby, be dismissed.” If the reversal stopped here it might be understood to have an effect with respect to

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Die Lunæ, 9° Aprilis 1821.After hearing counsel as well on Friday the 9th and Wednesday the 14th days of February, as Friday the 16th day of March last, upon the Petition and Appeal of Coningsby Norbury, Esq., complaining of a decree of the Court of Exchequer, of the 20th day of May 1816, made in two certain causes, in the first of which the Right Reverend Thomas Percy, Doctor in Divinity, deceased, was Plaintiff, and Coningsby Norbury, Esq. Defendant, by original Bill, and in the other the Right Honourable and Reverend Pierce Meade and Elizabeth his wife, and Samuel Isted, Esq., were Plaintiffs, and the said Coningsby Norbury was Defendant, by Bill of revivor, and praying that the said decree might be reversed, in so far as the same directs an account to be taken of the tithes which arose upon and from the lands called the Lower Friars, or that the Appellant might have such other relief in the premises as to this House,

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