1819.

NOEL and others

V.

estate, and not as land, nor to be laid out in land, be it so declared and applied by his executors in payment of his debts and legacies :-the legacy duty on the clear residue of the money to Lord HENLET arise from the sale of the devised estates, to be paid out of such residue.

and others.

SCOTT v. LAWSON and others.

v. SOWERBY and others.

v. WOOD and others.

1819.

Thursday, 13th May.

from the

grain, hay, and

shewn to have

upon, and

under which

no enjoyment

or perception tithe claimed

of the specific

THE above causes having been heard, now came An old grant on for judgment.-Their discussion was in effect Crown, "of nothing more than a rehearing of the cause of herbage," not Byam v. Booth and others, reported in Vol. II. been acted of these Reports, p. 231.-The plaintiff in that cause, Dr. Byam, having died at Brussels the day before the judgment of the Court was pronounced, the decree remained registered only in the Minutę Book. The present plaintiff was soon afterwards sufficient proof inducted into the vicarage of Catterick; and he of a title, in filed this bill in Easter Term 1817 against the ing under the defendants, owners and occupiers of lands in the tithe of agistparish, praying an account and description of the WOOD, B. dis

(agistment) was proved

persons claim

grantee, to the

ment.

sentiente.

sheep not producing wool and lambs, and of the "Herbage,"

mean agist

horses and other dry, barren, and unprofitable held not to cattle, which had been agisted on their lands in ment. the parish.

If a vicar claiming an account of

tithes throughout a whole parish, by bill in equity, prove his right in part of the parish only, the objection that the claim is too largely laid, is not a ground for dismissing the bill.-WooD, B. dissentiente.

The

1819.

SCOTT

v.

LAWSON

The evidence being the same as on the former occasion, and there being nothing new advanced in argument, every instructive purpose of this case and others. will be answered by giving such parts only of the several judgments which were pronounced by the Court, as add to the authority, or the reasons of that decision. The Barons delivered their opinions seriatim, as before.

GARROW, Baron, expressed himself as so entirely concurring in the opinion of the majority of the Court as pronounced by them on the former occasion, and for the same reasons, that it would be sufficient if he should read the judgment delivered by the then Lord Chief Baron, whose patience and learning he highly eulogized, as affording a lucid exposition of the opinion which he had himself formed on the question in this cause. His Lordship having then stated in

substance the reasons which are to be found in that judgment, concluded by declaring that opinion to be, that the plaintiff had clearly made out his title to the tithe of agistment, of which he now claimed an account, and which was the only matter now in dispute; and that the defendants had not offered any good defence either in fact or in law: and that therefore the vicar was entitled to a decree.

WOOD, Baron, again declared himself to be of the same opinion as before, on all the points in the case; and his Lordship entered into the reasons on which that opinion was founded, as fully as he has done on the former occasion, and which

were

1819.

SCOTT

V.

LAWSON

were in substance the same; and he also cited the same authorities. The only new matter which his Lordship introduced, was, in speaking of the manner of laying the claim on the part of the and others. vicar, which, as before, he condemned, as having been laid too largely and extensively; for (said he, in allusion perhaps to what fell from Lord Chief Baron Thomson on the former determination) it is not sufficient in a case where a plaintiff, by the fraud and artifice of laying his claim more extendedly than his right, for the purpose of excluding adverse testimony, that he may have to pay costs for the excess, because it would in all cases be well worth while for a party, at the expence of some addition to his costs, to establish a right which he would but for that device not have been successful in setting up; and the establishment of such claims in courts of Law and Equity, observed his Lordship, go down to after times as indisputable memorial of title, and therefore should be regarded with jealousy on every occasion, without reference to the immediate consequences of so minor an inconvenience. That he denied to be the doctrine of any Court of law, whatever might be the practice which had obtained in the Court of Chancery; and he would reject the admissions at the bar which should be made as to the propriety of such a mode of pleading; for the rules of pleading should be uniformly founded on the same principles in every Court in the kingdom.

GRAHAM, Baron, adhered to the judgment delivered by him on the hearing of the cause of

Byam

1819.

SCOTT

17.

LAWSON and others.

Byam v. Booth, and, in support of his reasoning, his Lordship investigated very minutely, and commented fully on the various and numerous documents adduced in evidence in the cause. Amongst other observations, he disclaimed the authority of the ancient grants produced on the part of one of the defendants, and which were not shewn to have been acted upon, or followed up in any instance; for, in cases of this sort, he had always considered that non-exercise of his rights by a grantee, made his grant as a matter of evidence mere waste parchment. Without proof of enjoyment, of what avail would these deeds be on an issue? There would be nothing to try if an issue should be granted, and it would be dangerous to mislead a jury by sending an issue to them, which might induce them to think that we had considered these dormant grants, which have never been followed up by perception, as being sufficient ground for their finding a verdict in their favor.

On the other points, his Lordship held, as before-that a grant of the tithe of herbage would not convey the tithe of agistment—and that the vicar, having claimed tithe of a larger proportion of district than that to the tithe of which he had proved his title, (although in this case the learned Baron declared it to be his opinion that here the plaintiff had proved his whole case) was no ground for the dismissal of his bill.

RICHARDS, Lord Chief Baron, commenced by observing, that the present suit was, in the result, a clear

a clear re-hearing of the former cause, as there was nothing new in the evidence, or any of the circumstances, although the defence, as he was sorry to see, was in some respects different, in having resisted the plaintiff's claim to some of the tithes, which had before been properly admitted; and therefore he should also take the same judicious course as had been pursued by Mr. Baron Garrow, in merely saying that he concurred with the majority of the Court in the opinions delivered by them on the former decision.

His Lordship, however, stated, that in consideration of the habits of his professional course of life, he felt it incumbent on him to make a few remarks on the objection which had been taken to the manner in which this claim had been laid, and the extent to which it had been set up; although, said his Lordship, it may not be necessary, on the present occasion, where the majority of the Court are of opinion that the plaintiff has completely established his general title to agistment throughout the parish, whatever he might have done upon the former occasion. That right is the foundation of the present claim, and such is the right demanded upon this record. If the defendant Crowe has not made out the case on which he and those claiming under him have affected to rely is that a reason why this bill should be dismissed altogether as to the other defendants and him? But suppose he had succeeded in his defence, is the vicar to be therefore beaten by all the rest? It is quite clear, that in Courts of Equity

the