subjects alleged to have been bought or sold; and also how and in what manner the plaintiff authorized the defendants to act as his agents in such transactions, and the nature, extent, and particulars of every such authority, and to whom the same was given; and whether the defendants do not allege, and whether it is the fact, that the defendants bought some, and what sums of stock on account of the plaintiff; and whether they do not allege, and whether it is the fact, that they, or some, or one, and which of them paid for the same, and whether they do not allege that the same sum or sums of stock was or were duly transferred to the plaintiff, and whether the plaintiff is indebted to them in respect of such purchases, and whether the plaintiff had the benefit of the purchases or purchase of stock so alleged to have been made for him, and whether the defendants have not received by sales of stock made on account of the plaintiff, divers, and what, or some and what sums or sum, and that the defendants may set forth the particulars of each and every sum of stock which they allege that they have bought on account of the plaintiff, and when and from whom and for what price each and every part of such stock was bought, and when and to whom each and every part of it was transferred after such purchase or purchases, and what became thereof."

The bill prayed for an account of the dealings and transactions between the plaintiff and the defendants, and that the amount due upon the balance of such account might be ascertained, and that the defendants might be decreed to pay to the plaintiff what might be found due from them on taking such account, and that the defendants might be decreed to transfer to the plaintiff the shares transferred to them upon the plaintiff's paying them (as he thereby offered to do) what (if anything) might be found to be due from him upon taking the accounts.

The defendants, by their answer, set out the 8th section of the 7 Geo. 2. c. 8, the effect of which is as follows: "that all contracts which should be made for buying, selling, assigning, or transferring any public securities whatsoever, whereof the person contracting should not, at the time of making such contract, be actually possessed in his own right, should be null and void; and that every person whatsoever contracting to

sell, assign, or transfer any public securities whereof such person should not, at the time of making such contract, be actually possessed in his own right as aforesaid, should forfeit and pay the sum of 500l., to be recovered in any of His Majesty's courts of record at Westminster; and that all and every broker or brokers, agent or agents, who should negotiate, transact, or intermeddle in the making, or procuring to be made, any such contract as aforesaid, and should know that the person by whom, or on whose behalf, such contract should be made, was not possessed of the stock or security concerning which such contract should be made in his own name, should for every such offence forfeit and pay the sum of 100l., to be recovered by action of debt in any of His Majesty's courts of record at Westminster."-The defendants then stated "that on the last day of the month of February 1848, and thenceforward until the day of the commencement of the suit, they were brokers or agents employed in negotiating and transacting sales and purchases of public stocks and other public securities, and were in co-partnership as such brokers or agents." They then admitted that in the month of March 1848, some dealings and transactions between them and the plaintiff were contemplated, and that in respect thereof, it was then probable that monies might become due from the plaintiff to them; and that some dealings and transactions had taken place between them. They then stated that, in such dealings and transactions, they were and acted as brokers or agents of the plaintiff, and that, to the best of their belief, the sum of 6821. 2s. 6d. was due from the plaintiff to them. They then admitted the applications. As to all the other interrogatories (stating them in full), they declined to answer. The answer then proceeded as follows: "and for cause in that behalf these defendants shew and aver that, by reason of these defendants having been during such time as aforesaid such brokers or agents as aforesaid, and by reason also of the statute aforesaid, these defendants are advised and do jointly and severally believe that the discovery by these defendants, or any of them, of all or any of the matters or particulars herein before by these defendants declined 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.
243.

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.

451.

KNIGHT BRUCE, V.C.—The question before me, it is unnecessary to say, is not whether 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

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

The enjoyment of land without payment of tithes for the period prescribed by the 2 & 3 Will. 4. c. 100, creates a valid and indefeasible exemption of such land from payment of tithes; and it is not necessary to prove a legal origin for such exemption. The act applies also to the case of a claim of partial exemption on the ground of non-payment of tithes in respect only of some titheable matters; although the same lands have paid tithes of other matters.

Under the same act, a modus liable to the objection of rankness, but which has been acted upon for the period prescribed by the act, will constitute a good exemption; semble.

Where, upon an appeal, the Court is of opinion that it is proper to send a case for the opinion of a court of law, the regular course is, to reverse the order of the Court below, and then direct the case; and thereupon the cause is remitted in its subsequent stages to the Court below.

This was a bill by the vicar of the parish of Crosby-upon-Eden, in the county of Cumberland, against the occupiers of land in the parish, claiming to be entitled to tithes in kind of all the turnips, potatoes, cabbages, tares, grass, clover, rye-grass, saintfoin, and other artificial grasses not made into hay, &c., yearly arising throughout the parish, and also tithe of agistment; and praying an account and payment of the same.

The defendants, by their answer, denied the vicar's title to the tithes of the titheable matters claimed by the bill; and, in

case any title by endowment or otherwise to the said tithes had ever been vested in the plaintiff, (which, however, the defendants did not admit), they said that the lands in their respective occupations had been respectively enjoyed without the payment of tithes of the said several titheable matters and things or any of them, or money or other matter in lieu thereof or of any of them, for and during the whole term that two persons in succession had held the said vicarage, and for not less than three years after the institution of a third person thereto, and during such number of years as were sufficient to make up the full period of sixty years, and also the further period of three years after the institution of a third person to the said vicarage, and in particular during the whole period of the two incumbencies of the Rev. W. G., and the Rev. H. S., who were vicars of the said parish in succession for and during the period of sixty years, and also during the further period of three years after the institution of the Rev. Dr. L. to the vicarage of the said parish; but save and except as thereinafter mentioned, how long in particular and during what exact period the said lands had been held and enjoyed without payment or render of such tithes respectively or any of them, or any money or other matter in lieu thereof, to the vicar of the said parish, they did not know nor could they set forth as to their belief or otherwise.

By the evidence adduced on the part of the plaintiff it was proved that he had always received the tithes in kind, or moduses or compositions in lieu thereof, in respect of titheable matters arising out of the same lands, except in respect of the titheable matters the tithes of which were claimed by the bill; but the bill contained no allegation to that effect. The evidence of the defendants merely went to prove non-payment of the tithes claimed during the period prescribed by the 2 & 3 Will. 4. c. 100.

The cause came on to be heard before Wigram, V.C., when his Honour decreed an account and payment, on the ground that, under the statute in question, the claim to exemption could not be supported by mere proof of non-render for the prescribed period, but that it was necessary

also to shew a legal origin of the exemption. (See 1 Hare, 196, and 11 Law J. Rep. (N.s.) Chanc. 201.)

The defendants thereupon appealed to the Lord Chancellor, and the appeal came on to be heard before Lord Lyndhurst, in November 1843, when his Lordship, without reversing the decree, directed a case to be sent for the opinion of the Judges of the Court of Common Pleas, and reserved further directions and costs.

The case, after stating the claim made by the bill, and that the defendants by their answer had set up and proved by their evidence merely the non-render of the tithes claimed to the vicars of the parish, for the time prescribed by the statute 2 & 3 Will. 4. c. 100; and that the plaintiff went into no evidence touching the exemption or discharge of the defendants' respective lands from the payment of the tithes demanded by his bill, further stated, that the plaintiff and his predecessors, vicars of the said parish, had always received the tithes in kind, or moduses and compositions for the tithes of hay, with certain exceptions, and of milk, calves, wool, lambs, foals, bees, pigs, geese, and eggs; and it was to be assumed that the plaintiff was entitled to the tithes claimed by the bill, unless, under the circumstances mentioned in the case, such lands were exempt or discharged from such tithes.

The question submitted to the Court was, whether according to the true construction of the act 2 & 3 Will. 4. c. 100, a valid and indefeasible prescription or claim of exemption from or discharge of the tithes claimed by the bill could be sustained under the circumstances stated.

The case was argued, in February 1846, before Tindal, C.J., and Coltman, J., Cresswell, J. and Erle, J. (1); of whom Tindal, C.J. and Cresswell, J. answered the question in the negative, and Coltman, J. and Erle, J. in the affirmative.

On the cause coming on before Lord Cottenham, for further directions, his Lordship directed the same question for the opinion of the Court of Exchequer, and continued the reservation of further directions.

On the case coming on for argument in the Court of Exchequer, upon an intima(1) 2 Man. G. & Sc. 749.

tion from the Judges of that court that the case ought to be altered so as to raise both questions, namely, the claim of partial exemption as well as of total exemption, the case was, with the sanction of the Lord Chancellor, altered by striking out the original question, and inserting the following paragraphs:

"It is also to be assumed for the purpose of this case that, as to some parts of the lands in question, no tithes of any kind nor any money or other matter in lieu thereof have or has been paid or rendered during the period above mentioned, although during such period not only the titheable matters and things, the tithes whereof are demanded by the plaintiff's bill, but other titheable matters and things grew and arose from time to time, and at various times, upon such parts of the said lands. It is also to be assumed for the purpose of this case that, as to other parts of the land in question, no tithes of the titheable matters and things, the tithes whereof are demanded by the plaintiff's bill, nor any money or other matter in lieu thereof, have or has been paid or rendered during the said period, although at various times during such period the titheable matters and things, the tithes whereof are demanded by the plaintiff's bill, grew and arose upon such last-mentioned lands, and although at various other times during the same period other titheable matters and things, including corn, grain, and hay, grew and arose upon the last-mentioned lands, and the tithes of all the lastmentioned matters and things have from time to time been paid and rendered. The questions for the opinion of the Court are, first, whether a valid and indefeasible prescription or claim of exemption from or discharge of the tithes demanded by the bill, can be maintained under the circumstances stated as to those parts of the lands in respect of which no tithes of any kind have been paid during the period mentioned; secondly, whether such prescription or claim can be maintained under the circumstances stated as to those parts of the lands in respect of which some tithes have been paid during the said period."

The Court of Exchequer certified their opinion unanimously: first, that as to those parts of the lands in question whereof no

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.

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.

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.