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Nagle v.
Edwards,
3 Auftr. 702.

perty. But, in this particular cafe, the inconveniences and confufion of property would be much greater, from purfuing those refolutions, than from overturning them.-Mr. Joddrell, from whofe notes this cafe was taken by Mr. Gwillim, fays he was informed, that judgment was given for the plaintiff.

§ 92. The plaintiff fued in the exchequer as lay impropriator of the parish of L. for tithe of hay and agiftment. The defendant infifted, that, from tithes of hay never having been paid to the rector, within memory, a conveyance of them to the landholder fhould be prefumed.

Lord Chief Baron Macdonald." The plaintiff "having made out to himself a clear title as rector,

the defendant infifts on exemption from payment of "hay and agiftment tithe on the ground of never c having paid thefe tithes from non-payment he "wishes the court to prefume a grant or conveyance "of thefe tithes from the lay impropriator. It is "clear, that, against an ecclesiastical rector, this defence could never be set up in any fhape. Whether a lay impropriator fhould have the fame benefit, was at first doubted; but that point seems now at "reft. Three fucceffive decifions upon it have fully "established, that there is no difference between a lay 3 Auftr. 945. and an ecclefiaftical rector." The court decreed an

Vide Lord
Petre v.

Blencoe,

account.

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

cafe,

cafe, appeared to entertain confiderable doubts on this point.

§ 94. An estate was fold by auction, and ninetyfour acres of it were stated in the particulars of fale to be exempt from the tithe of hay. It was objected, that this exemption was not afcertained by the abftract. 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 fpecific performance of the agreement, entered into by the defendant for the purchase of the estate.

It was argued for the plaintiff, that a prefumption ought to be raised against a lay impropriator. That the abfurdity of holding, there could not be a prefumption against him was evident, from this inftance: An estate was fold in the adjoining parifh, free from the payment of great tithes; but the conveyance of the tithes could not be found; and the fame objection would have been made, if the deeds conveying the tithes had not at laft been found by accident.

Lord Chancellor Eldon faid, the question was very important for, if he was to hold it a flat objection to the title, that would go upon the prefumption 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,

G

his

Rofe v

Calland,

5 Vef. Jun.

186.

Ante § 92.

Non-payment will fupport a

claim to a portion of tithes.

Scott v.
Ayrey,
3 Gwill. 1174.

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 fuit: the argument was certainly very strong upon the inftance mentioned, where the deeds were found by accident.

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His lordship on another day faid, that upon the cafe of Nagle v. Edwards the difficulty was, how he could make a person take a title in the face of that decifion : if he did, he decreed him to enter into a law fuit. That cafe was upon the tithe of agiftment: there was a very long poffeffion, and all the inconvenience to induce the court to raise the presumption. He defired to be understood, as not entirely agreeing with the determination of the court of exchequer; but he fhould 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 difmiffed without costs.

§ 95. There is a material difference between a prefcription de non decimando, and a claim to a portion of tithes. In the latter cafe, if the claim be fupported 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.

$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

Eal's

Eal's Farm. The defendants, the Ayreys, were owners of part of the lands, and claimed the tithes of Eal's 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 obferved, that the present cafe 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 fuch cases, the rule had been, that a perfon setting up an exemption from the payment of tithes, muft fhew the particular ground of exemption. If that is not fhewn, the defence amounts to no more than a mere non-payment of tithe; which, however long, is no defence: but, in the present cafe, the plaintiff claimed the tithe of land, of which tithe had been conftantly taken. For, although a part of the land had not actually paid tithe, it had been no otherwife 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 poffeffion of the family of Ridley, that they were fold in 1683 to one Whitfield: that, in 1708, they were conveyed to Green, in fee. They were afterwards mortgaged: and the devifee 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 fales, mortgages, and devises, as other property; and had always

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been confidered in the fame light as the other real property of the perfons, who from time to time had claimed them. They were capable of being enjoyed by the perfons, who had enjoyed them: and the queftion was, whether a court of equity ought to interfere to take the poffeffion from perfons, who had been in poffeffion for fo many years, with knowledge of the rector. It did not appear how the Ridleys became intitled; but it appeared that, being in poffeffion, they fettled, mortgaged, and devifed the tithes as their own abfolute property. If, notwithstanding this long pcffeffion, the plaintiff was legally intitled, he was not without remedy: but it was too much in a cafe of this kind for a court of equity to interpofe, and after fo long a poffeffion to take the property from the poffeffors, and decree the rector intitled to it. The court had been preffed to direct an iffue; but there feemed no reafon for the court to interfere thus far. Whether the court directed an iffue, which adopted in fome degree the plaintiff's demand, or left the plaintiff to purfue his legal remedy, he might make good his demand if it was well founded. It was therefore not. abfolutely neceffary for the court to interpofe.

Mr. Baron Eyre faid, the principal queftion in this cafe was, the defence fet up by the Ayreys against the prima facie title of the rector, founded on a title fet forth in their anfwer, and the indifputable fact of actual poffeffion, occupation, and pernancy of the tithes. The diftinction between a prefcription in non decimando, and a claim of a portion of tithes is an effential diftinction. A prefcription in non decimando

is

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