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perty. But, in this particular case, the inconveniences and confusion of property would be much greater, from pursuing those resolutions, than from overturning them.-Mr. Yoddrell, from whose notes this case was taken by Mr. Gwillim, says he was informed, that judgment was given for the plaintiff.

Nagle v.
3 Anstr. 702.

S 92. The plaintiff sued in the exchequer as lay impropriator of the parish of L. for tithe of hay and agistment. The defendant insisted, that, from tithes of hay never having been paid to the rector, within memory, a conveyance of them to the landholder should be presumed.

Lord Chief Baron Macdonald.-" The plaintiff “ having made out to himself a clear title as rector, c the defendant insists on exemption from payment of " hay and agistment tithe on the ground of never

having paid these tithes: from non-payment he “ wishes the court to presume a grant or conveyance “ of these tithes from the lay impropriator. It is " clear, that, against an ecclesiastical rector, this de“ fence could never be set up in any shape. Whether

a lay impropriator should have the same benefit,

“ was at first doubted; but that point seems now at Vide Lord

u reit. Three fuccessive decisions upon it have fully

" established, that there is no difference between a lay Blencoe, 3 Anttr. 945. " and an ecclefiaftical rector.” The court decreed an


Petre v.

S 93. Notwithstanding the authority of this determination the court of chancery has in the following


case, appeared to entertain considerable doubts on this point.

S 94. An estate was sold by auction, and ninety- Rose v;

Calland, four acres of it were stated in the particulars of sale to 5 Vef. Jun. be from the tithe of hay. It was objected, that

186. exempt this exemption was not ascertained by the abstract. No tithe of hay had ever been taken, within the memory of man; nor had any thing been paid in lieu of it: and other tithes had been regularly taken, and the tithes of the parish were all in lay hands.

A bill was filed by the vendors to obtain a specific performance of the agreement, entered into by the defendant for the purchase of the estate.

It was argued for the plaintiff, that a presumption ought to be raised against a lay impropriator. That the absurdity of holding, there could not be a presumption against him was evident, from this instance: An estate was sold in the adjoining parish, free from the payment of great tithes ; but the conveyance of the tithes could not be found ; and the same objection would have been made, if the deeds conveying the tithes had not at last been found by accident.

Lord Chancellor Eldon said, the question was very important: for, if he was to hold it a flat objection to the title, that would go upon the presumption that it was a clear point of law, that a lay rector, who could

convey, contract and diminish his right, which a spiritual rector could not, was not to be barred from VOL. III.



his right to any particular tithe, by length of time ; or the circumstances attending the receipt of his other tithes : he should be very loth to go that length. On the other hand, he should be very unwilling to make a man purchase a law suit: the argument was certainly very strong upon the instance mentioned, where the deeds were found by accident.

Ante 92.

His lordship on another day said, that upon the case of Nagle v. Edwards the difficulty was, how he could make a person take a title in the face of that decision : if he did, he decreed him to enter into a law suit. That case was upon the tithe of agistment: there was a very long possession, and all the inconvenience to induce the court to raise the presumption. He desired to be understood, as not entirely agreeing with the determination of the court of exchequer; but he should be in a strange situation in defiring a purchaser to take the title, because he thought the point a pretty good one; though the court of exchequer had determined against it. The bill was dismissed without costs.

Non-payment will support a claim to a portion of tithes.

S 95. There is a material difference between a prefcription de non decimando, and a claim to a portion of tithes. In the latter case, if the claim be supported by evidence of actual pernancy and enjoyment for a long time, a court of equity will not interfere, but leave the parties to their legal remedy.

Scott v.
3 Gwill. 1174

§ 96. Doctor Scott, being rector of Simenburne in Northumberland, filed his bill in the court of exchequer, for the tithes of corn and grain of a farm called


Eals Farm. The defendants, the Ayreys, were owners of part of the lands, and claimed the tithes of Eaľs Farm. The question was, whether the plaintiff was entitled to the tithes of corn and hay of the lands, of which the Ayreys claimed the tithes.

The Lord Chief Baron observed, that the present case was not a demand for tithe of land, which had hitherto paid no tithe ; and that the defence was not a prescription in non decimando. In all such cases, the rule had been, that a person setting up an exemption from the payment of tithes, must shew the particular ground of exemption. If that is not shewn, the defence amounts to no more than a mere non-payment of tithe ; which, however long, is no defence: but, in the present case, the plaintiff claimed the tithe of land, of which tithe had been constantly taken. For, although a part of the land had not actually paid tithe, it had been no otherwise exempt, than because the tenant of that part had been tenant of the tithe of all. The tithes having been actually paid, the next question was, how they had been paid : they had been paid from particular lands in the nature of a portion of tithes. It appeared that, in the year 1608, these tithes were in the possession of the family of Ridley, that they were sold in 1683 to one Whitfield: that, in 1708, they were conveyed to Green, in fee. They were afterwards mortgaged: and the devisee of the mortgagee purchased the equity of redemption, and devised to persons, under whom the defendants claimed. For 170 years they had been the subject of sales, mortgages, and devises, as other property; and had always G2


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been considered in the same light as the other real property of the persons, who from time to time had claimed them. They were capable of being enjoyed by the persons, who had enjoyed them: and the queltion was, whether a court of equity ought to interfere to take the possession from persons, who had been in possession for so many years, with knowledge of the rector. It did not appear how the Ridleys became intitled; but it appeared that, being in possession, they settled, mortgaged, and devised the tithes as their own absolute property, If, notwithstanding this long pofsession, the plaintiff was legally intitled, he was not without remedy: but it was too much in a case of this kind for a court of equity to interpose, and after so long a possession to take the property from the possessors, and decree the rector intitled to it. The court had been pressed to direct an issue; but there seemed no reason for the court to interfere thus far. Whether the court directed an issue, which adopted in fome degree the plaintiff's demand, or left the plaintiff to pursue his legal remedy, he might make good his demand if it was well founded. It was therefore not absolutely necessary for the court to interpose.

Mr. Baron Eyre said, the principal question in this case was, the defence set up by the Ayreys against the primei facie title of the rector, founded on a title set forth in their answer, and the indisputable fact of actual poffeffion, occupation, and pernancy

of the tithes. The distinction between a prescription in 2101 decimando, and a claim of a portion of tithes is an efTential distinction. A prescription in non decimando


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