Imatges de pàgina

subjects alleged to have been bought or sell, assign, or transfer any public securities sold; and also how and in what manner the whereof such person should not, at the time plaintiff authorized the defendants to act as of making such contract, be actually poshis agents in such transactions, and the sessed in bis own right as aforesaid, should nature, extent, and particulars of every such forfeit and pay the sum of 500l., to be reauthority, and to whom the same was given; covered in any of His Majesty's courts of and whether the defendants do not allege, record at Westminster; and that all and and whether it is the fact, that the defen- every broker or brokers, agent or agents, dants bought some, and what sums of stock who should negotiate, transact, or interon account of the plaintiff; and whether meddle in the making, or procuring to be they do not allege, and whether it is the made, any such contract as aforesaid, and fact, that they, or some, or one, and which should know that the person by whom, or of them paid for the same, and whether on whose behalf, such contract should be they do not allege that the same sum or made, was not possessed of the stock or sums of stock was or were duly transferred security concerning which such contract to the plaintiff, and whether the plaintiff is should be made in his own name, should indebted to them in respect of such pur. for every such offence forfeit and pay the chases, and whether the plaintiff had the sum of 1001., to be recovered by action of benefit of the purchases or purchase of stock debt in any of His Majesty's courts of reso alleged to have been made for him, and cord at Westminster.”—The defendants then whether the defendants have not received by stated " that on the last day of the month sales of stock made on account of the plaintiff, of February 1848, and thenceforward until divers, and what, or some and what sums the day of the commencement of the suit, or sum, and that the defendants may set they were brokers or agents employed in forth the particulars of each and every sum negotiating and transacting sales and purof stock which they allege that they have chases of public stocks and other public bought on account of the plaintiff, and when securities, and were in co-partnership as and from whom and for what price each such brokers or agents." They then adand every part of such stock was bought, mitted that in the month of March 1848, and when and to whom each and every part some dealings and transactions between them of it was transferred after such purchase or and the plaintiff were contemplated, and purchases, and what became thereof." that in respect thereof, it was then probable

The bill prayed for an account of the deal. that monies might become due from the ings and transactions between the plaintiff plaintiff to them; and that some dealings and the defendants, and that the amount due and transactions had taken place between upon the balance of such account might be them. They then stated that, in such dealascertained, and that the defendants mightings and transactions, they were and acted be decreed to pay to the plaintiff what as brokers or agents of the plaintiff, and might be found due from them on taking that, to the best of their belief, the sum of such account, and that the defendants might 6821. 2s. 6d. was due from the plaintiff to be decreed to transfer to the plaintiff the them. They then admitted the applications. shares transferred to them upon the plain- As to all the other interrogatories (stating tiff's paying them (as he thereby offered to them in full), they declined to answer. do) what (if anything) might be found to The answer then proceeded as follows: be due from him upon taking the accounts. “and for cause in that behalf these defendants

The defendants, by their answer, set out shew and aver that, by reason of these dethe 8th section of the 7 Geo. 2. c. 8, the fendants having been during such time as effect of which is as follows: “ that all con- aforesaid such brokers or agents as aforetracts which should be made for buying, selle said, and by reason also of the statute aforeing, assigning, or transferring any public said, these defendants are advised and do securities whatsoever, whereof the person jointly and severally believe that the discontracting should not, at the time of making covery by these defendants, or any of them, such contract, be actually possessed in his of all or any of the matters or particulars own right, should be null and void; and hereinbefore by these defendants declined that every person whatsoever contracting to to be answered, set forth, or discovered,

would tend to subject these defendants severally and respectively, as such brokers or agents acting as therein mentioned, to such penalties as aforesaid, wherefore these defendants crave to be protected from making such discovery as last aforesaid, or any part thereof, and humbly pray the judgment of this honourable Court whether they shall be compelled to make any further or other answer to such parts of the discovery sought by the said bill, as these defendants have so declined to answer as aforesaid."

The plaintiff excepted to this answer for insufficiency. The Master reported that the answer was insufficient. The defendants thereupon excepted to the report. These exceptions now came on to be heard.

Mr. Swanston, Mr. Prendergast, and Mr. Willes, for the defendants, cited

Parkhurst v. Lowten, 1 Mer. 391.
Bullock v. Richardson, 11 Ves. 373.
Paxton v. Douglas, 19 Ves. 225.
Claridge v. Hoare, 14 Ves. 59.
Thorpe v. Macauley, 5 Madd. 218.
Purcell v. Macnamara, Wig. Disc. pl.

319, 2nd edit.
Clapham v. White, 8 Ves. 36.

The Queen v. Garbett, 1 Den. C.C. 236. Mr. Russell and Mr. F. Bayley, for the plaintiff, cited

Red. Pl. 285, 4th edit.
Bird v. Hardwicke, 1 Vern. 109.
Sharp v. Carter, 3 P.Wms. 375.
Brownsword v. Edwards, 2 Ves. sen.

Finch v. Finch, 2 Ves, sen. 491.
Weaver v. the Earl of Meath, 2 Ves.

sen. 108. The Corporation of the Trinity House v.

Burge, 2 Sim. 411; s. c. 7 Law J.

Rep. Chanc. 44.
The King v. Sainsbury, 4 Term Rep.


criminate himself, or will directly form a step in proceedings which may be taken against him in a prosecution. The application, however, of the rule may, in the nature of things, be often a matter of great nicety and difficulty, depending on the different circumstances of the case. The difficulty is not lessened by the fact that these two propositions are perfectly clear : one, that the plaintiff cannot deprive the defendant of that protection by stating the plaintiff's case untruly, or by stating a case of mere and absolute innocence; the other, that it is absurd to suppose or suggest that the defendant cannot have the protection without stating that a crime has been committed ; as in this case the condition would destroy the object for which the rule is made. The difficulty, then, of the application of the rule is not diminished, but increased, by those two propositions, which no one disputes. I believe that it is possible that a case may be so circumstanced that a man may be compelled to answer, although he swears that his answer will subject him to a prosecution. We must, however, look to the circumstances of this case. The case stated by the bill is, that pecuniary transactions were contemplated between the plaintiff and the defendants, and that in that contemplation, certain railway shares, belonging to the plaintiff, were transferred to the defendants as a security for the ultimate balance of the account. The defendants, in their answer, say that they are stockbrokers. They then state the Stock-jobbing Act; and, with regard to the questions, which they decline to answer, they say that by reason of their having been, during such time as aforesaid, brokers and agents as aforesaid, they believe that the discovery of the matters inquired after would tend to subject them, severally and respectively, to forfeiture and penalties as brokers and agents. Coupling this answer with the statements of the bill, can I reasonably say that this is a kind of case to which the Judges were looking when they decided the case of The Queen v. Garbett; when they said that they did not decide (as the case did not call for it) whether the mere declaration of the witness, on oath, that he believed that the answer would tend to criminate him, would or would not be sufficient to protect him from answering, where sufficient other cir

Knight Bruce, V.C.—The question before me, it is unnecessary to say, is not whe, ther the plaintiff is entitled to relief, or to what extent he is entitled to relief. The only question before me is, how far the defendants are to help the plaintiff to evidence to prove his case. The general proposition is admitted and clear, that a defendant is not to be compelled to answer matter which will


cumstances did not appear in the case to case any title by endowment or otherwise induce the Judges to believe that it would to the said tithes had ever been vested in not? I am of opinion, therefore, that the the plaintiff, (which, however, the defenparticular circumstances of the case, taking dants did not admit), they said that the the bill and answer together, do bring it lands in their respective occupations had within the general rule.

been respectively enjoyed without the payExceptions allowed. ment of tithes of the said several titheable

matters and things or any of them, or

money or other matter in lieu thereof or L.C.

of any of them, for and during the whole Nov. 1843;

term that two persons in succession had SALKELD V. JOHNSTON AND Nov. 1847;

held the said vicarage, and for not less Nov. 1848 ;


than three years after the institution of a Aug. 2, 1849. V

third person thereto, and during such numTithes-2 8. 3 Will. 4. c. 100, Construc

ber of years as were sufficient to make up

the full period of sixty years, and also the tion ofExemption, total or partial-Prac

further period of three years after the in

stitution of a third person to the said The enjoyment of land without payment vicarage, and in particular during the whole of tithes for the period prescribed by the period of the two incumbencies of the 2 83 Will. 4. c. 100, creates a valid and Rev. W. G., and the Rev. H. S., who were indefeasible exemption of such land from vicars of the said parish in succession for payment of tithes, and it is not necessary and during the period of sixty years, and to prove a legal origin for such exemption. also during the further period of three The act applies also to the case of a claim of years after the institution of the Rev. Dr. partial exemption on the ground of non-pay- L. to the vicarage of the said parish ; but ment of tithes in respect only of some tithe- save and except as thereinafter mentioned, able matters ; although the same lands have how long in particular and during what paid tithes of other matters.

exact period the said lands had been held Under the same act, a modus liable to the and enjoyed without payment or render of objection of rankness, but which has been such tithes respectively or any of them, or acted upon for the period prescribed by the any money or other matter in lieu thereof, act, will constitute a good exemption; semble. to the vicar of the said parish, they did

Where, upon an appeal, the Court is of not know nor could they set forth as to opinion that it is proper to send a case for their belief or otherwise. the opinion of a court of law, the regular By the evidence adduced on the part of course is, to reverse the order of the Court the plaintiff it was proved that he had below, and then direct the case; and there always received the tithes in kind, or moupon the cause is remitted in its subsequent duses or compositions in lieu thereof, in stages to the Court below.

respect of titheable matters arising out of

the same lands, except in respect of the This was a bill by the vicar of the parish titheable matters the tithes of which were of Crosby-upon-Eden, in the county of claimed by the bill; but the bill contained Cumberland, against the occupiers of land no allegation to that effect. The evidence in the parish, claiming to be entitled to of the defendants merely went to prove tithes in kind of all the turnips, potatoes, non-payment of the tithes claimed during cabbages, tares, grass, clover, rye-grass, the period prescribed by the 2 & 3 Will. 4. saintfoin, and other artificial grasses not c. 100. made into hay, &c., yearly arising through The cause came on to be heard before out the parish, and also tithe of agistment; Wigram, V.C., when his Honour decreed and praying an account and payment of an account and payment, on the ground the same.

that, under the statute in question, the claim The defendants, by their answer, denied to exemption could not be supported by the vicar's title to the tithes of the tithe- mere proof of non-render for the preable matters claimed by the bill ; and, in scribed period, but that it was necessary also to shew a legal origin of the exemp- tion from the Judges of that court that the tion. (See 1 Hare, 196, and 11 Law J. case ought to be altered so as to raise both Rep. (n.s.) Chanc. 201.)

questions, namely, the claim of partial The defendants thereupon appealed to exemption as well as of total exemption, the Lord Chancellor, and the appeal came the case was, with the sanction of the Lord on to be heard before Lord Lyndhurst, in Chancellor, altered by striking out the oriNovember 1843, when his Lordship, with ginal question, and inserting the following out reversing the decree, directed a case to paragraphs :be sent for the opinion of the Judges of “ It is also to be assumed for the purthe Court of Common Pleas, and reserved pose of this case that, as to some parts of further directions and costs.

the lands in question, no tithes of any The case, after stating the claim made kind nor any money or other matter in by the bill, and that the defendants by lieu thereof have or has been paid or rentheir answer had set up and proved by dered during the period above mentioned, their evidence merely the non-render of although during such period not only the the tithes claimed to the vicars of the titheable matters and things, the tithes parish, for the time prescribed by the sta- whereof are demanded by the plaintiff's tute 2 & 3 Will. 4. c. 100; and that the bill, but other titheable matters and things plaintiff went into no evidence touching grew and arose from time to time, and at the exemption or discharge of the defen- various times, upon such parts of the said dants' respective lands from the payment lands. It is also to be assumed for the of the tithes demanded by his bill, further purpose of this case that, as to other parts stated, that the plaintiff and his predeces of the land in question, no tithes of the sors, vicars of the said parish, had always titheable inatters and things, the tithes received the tithes in kind, or moduses whereof are demanded by the plaintiff's and compositions for the tithes of hay, with bill, nor any money or other matter in lieu certain exceptions, and of milk, calves, thereof, have or has been paid or rendered wool, lambs, foals, bees, pigs, geese, and during the said period, although at various eggs ; and it was to be assumed that the times during such period the titheable plaintiff was entitled to the tithes claimed matters and things, the tithes whereof are by the bill, unless, under the circumstances demanded by the plaintiff's bill, grew and mentioned in the case, such lands were arose upon such last-mentioned lands, and exempt or discharged from such tithes. although at various other times during the

The question submitted to the Court same period other titheable matters and was, whether according to the true con things, including corn, grain, and hay, struction of the act 2 & 3 Will. 4. c. 100, grew and arose upon the last-mentioned a valid and indefeasible prescription or lands, and the tithes of all the lastclaim of exemption from or discharge of mentioned matters and things have from the tithes claimed by the bill could be sus- time to time been paid and rendered. The tained under the circumstances stated questions for the opinion of the Court are,

The case was argued, in February 1846, first, whether a valid and indefeasible prebefore Tindal, C.J., and Coltman, J., scription or claim of exemption from or disCresswell, J. and Erle, J. (1); of whom charge of the tithes demanded by the bill, Tindal, C.J. and Cresswell, J. answered can be maintained under the circumstances the question in the negative, and Coltman, stated as to those parts of the lands in J. and Erle, J. in the affirmative.

respect of which no tithes of any kind have On the cause coming on before Lord been paid during the period mentioned ; Cottenham, for further directions, his Lord- secondly, whether such prescription or claim ship directed the same question for the can be maintained under the circumstances opinion of the Court of Exchequer, and stated as to those parts of the lands in continued the reservation of further direc respect of which some tithes have been tions.

paid during the said period." On the case coming on for argument in The Court of Exchequer certified their the Court of Exchequer, upon an intima opinion unanimously : first, that as to those (1) 2 Man. G. & Sc. 749.

parts of the lands in question whereof no

the plaintiff, argued that the plaintiff's case fell within the second branch of the certificate of the Judges, namely, as a case of partial exemption only, and therefore not within the act.

[The LORD CHANCELLOR.—The plaintiff has not alleged in his bill that other tithes have been paid in respect of these lands; and, therefore, I must treat it as a case of total exemption.]

Mr. Wood, Mr. Eagle, and Mr. Malins, for the defendants, contended that the question, as to partial non-payment not creating an exemption under the act, was not raised upon the pleadings; and, secondly, that the certificate was wrong in confining the operation of the act to a case of non-payment of any tithes in respect of the lands; for that as a partial modus would be good under the act, so would also a claim of partial exemption by reason of the non-payment of tithes in respect of particular titheable matters.

tithe of any kind or other matter in lieu thereof had been paid or rendered during the period above mentioned, according to the true construction of the statute, a valid and indefeasible prescription or claim of exemption from discharge of all tithes could be maintained under the circumstances before mentioned ; provided all the tithes of all the titheable matters from time to time growing on the said lands be shewn to have been during the whole of the said period withheld adversely and under a claim as of right acquiesced in by the tithe-owner. Secondly, as to other parts of the land in question whereof no tithes of the particular titheable matters, the tithes whereof are demanded by the plaintiff's bill, nor any money or other matters in lieu thereof, had been paid or rendered during the period above mentioned, although at various times during such periods such titheable matters and things grew and arose upon such last-mentioned lands, other titheable matters and things having also at various times during the same periods, including corn, grain, and hay, and the tithes of all such last-mentioned titheable matters and things having been from time to time duly paid and rendered, that no valid and indefeasible prescription or claim of exemption from or discharge of the tithes claimed by the plaintiff's bill can be sustained under the circumstances above stated, according to the true construction of the said statute (2).

Upon the cause coming on for further directions upon this certificate, the Lord Chancellor observed, that the cause should not have been set down before him, but before the Court in which it was originally heard, according to the rule laid down in Sowdon v. Marriott(3); for, where the court of appeal was of opinion that a case ought to have been sent for the opinion of a court of law, the regular course was to reverse the decree, and then direct the case; and thereupon the cause was remitted to the court below; but that, as Lord Lyndhurst's order had not followed that course, the cause was still in the superior court, and he would hear it ; but that this case should not be drawn into a precedent. Sir F. Simpkinson and Mr. Fleming, for

(2) 18 Law J. Rep. (N.s.) Exch. 89.
(3) 2 Philli. 623.


Aug. 2, 1849.-The LORD CHANCELLOR having for some time been prevented from attending court by illness, gave out the following judgment in writing :

The Vice Chancellor Wigram decreed payment of certain tithes against the defendants, who had pleaded the statute 2 & 3 Will. 4. c. 100, and proved non-payment of the particular tithes claimed within the period required by the act ; holding that such non-payment was no protection under the act without proof of the legal origin of the discharge.

Lord Lyndhurst, upon an appeal from that decree, directed a case for the opinion of the Judges of the Common Pleas—They were equally divided, Chief Justice Tindal and Mr. Justice Cresswell agreeing with Vice Chancellor Wigram ; Justices Erle and Coltman holding that the defence under the act was complete. Upon this certificate the case came before me; and finding the Judges of the Common Pleas equally divided, and that upon the same question coming before the Queen's Bench, in Fellowes v. Clay (4), the Judges of that court were also equally divided, Lord Denman and Mr. Justice John Williams concurring with Justices Erle and Coltman, and

(4) 4 Q.B. Rep. 313; s. c. 12 Law J. Rep. (N.s.) Q.B. 202.

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