215 EXCHEQUER OF PLEAS. Monday, the 4th, Wednesday, the 6th, and Tuesday, the 12th Nov. 1839. TITHE COMPOSITION-2 & 3 W. 4, c. 119-EVIDENCE- Lord SHANNON v. STOUGHTON. THIS was an action of debt for the recovery of tithe composition, claimed 66 At the trial, which took place before Mr. Sergeant Greene, at the Spring Assizes for the county of Cork, in 1838, the plaintiff gave in evidence the certificate and applotment made by a Commissioner appointed under the 2 & 3 W. 4, c. 119, and proved the hand-writing of the Commissioner thereto, and his having acted in that capacity. Plaintiff also proved some proceedings before the Privy Council, confirming the certificate on appeal. Plaintiff's counsel having stated that the lands of Gurtagrennan, on which an annual sum of £28. 11s. 11ąd. had been applotted, were those for which it was sought to charge the defendant, produced, as a witness, Henry Supple, who stated that "he was agent "to the defendant, and managed his Cork property; that the lands of Gurtagrennan were the property of the defendant, and were in the “parish of Kilpatrick, and that some part of the said lands were in lease "within the last year. It was all in lease in September then last (1837). "The lease of the demesne was surrendered in September, 1837. Mr. "Shea's lands were in lease, but the place was given up in last Septem"ber (1837). Witness, as agent to the defendant, received the rents "of all the lands not in the defendant's possession. Sir Robert Travers got a lease of the entire of Gurtagrennan from the defendant twelve "years ago, and Shea got an assignment of the lease from him, and held “under it until last September. Sir Robert Travers is dead. That "lease was a lease of the whole of Gurtagrennan. It was for one life or twenty-one years, being the only term the defendant can give in "the county of Cork. Gurtagrennan remained unlet until the 25th of Did not know of any "March last (1838). There is no lease now. "lease to Shea or his father in 1834, On the 18th of September last, The presumpdant's liability to tithe composition, arising from his pos tion of a defen session of the lands, is not rebutted by the statement of the plaintiff's witness, the land-agent of the defendant, that there had standing lease, been an out and that defen dant had entered into posland upon a parol surrender, without any session of the instrument in writing, the defendant, under such cir cumstances, not falling within either of the exceptions contained section of the 2 & 3 W. 4, c. 119, being neither tenant in the 12th from year to year, nor at will, within the meaning of that act. 1839. "Luke Shea surrendered. Defendant has been in possession of the "house and demesne since. The demesne is about 120 acres." On his cross-examination, this witness stated, "that he never heard of a sur"render in writing of the lease which had been made to Sir Robert STOUGHTON. "Travers. What the witness called a surrender was the giving up the "lease and the possession, but there was not any writing whatever." LORD SHANNON t'. The next witness, Edmond M'Daniel, proved that he had been a yearly tenant to Mr. Shea of a part of the lands; that the defendant was now his landlord; and that he paid his last September rent to Mr. Supple. Counsel for the defendant having then admitted that all the lands in respect of which the tithe composition was claimed in this action, had been and were, before, and at, and since the time this action was brought, held by persons holding in the same manner as Edmond M'Daniel, plaintiff closed his case. Counsel for the defendant thereupon required the learned Judge to non-suit the plaintiff, or direct the Jury, if they believed the evidence, to find for the defendant, for the following reasons, amongst others :— Because it appeared in evidence that the first estate or interest in the lands of Gurtagrennan greater than a tenancy from year to year had been and was, before and at the time the action was commenced, and also before and at the time when the tithe composition (for the recovery of which this action was brought) accrued due, vested in the assignee or personal representative of the said Sir Robert Travers, under the lease mentioned in the evidence of the said Henry Supple, and not in the defendant; and that there was not any sufficient evidence that the interest in the term demised by the said lease had been or was surrendered or assigned to the defendant. On the part of the plaintiff, it was insisted, in reply, that the defendant's possession of the said lands, and his receipt of the rents thereout, was sufficient evidence to charge him as the assignee of the term so demised to Sir R. Travers. His Lordship refused to nonsuit the plaintiff, or to direct the Jury as required by the defendant's counsel; but declared his opinion, that the possession of the defendant, and his receipt of rent, were sufficient to charge the defendant as assignee of the term. Counsel for the defendant then offered to go into evidence, to shew that, previous to the composition, the lay rectory was not in the Earl of Shannon, but in the Duke of Devonshire; but this evidence the learned Judge refused to admit, on the authority of Ashe v. Locke (a), no conflicting certificate or appeal by any other tithe-owner appearing. They then offered to prove, that for twenty years preceding the date of the certificate, no tithes had been paid in the parish; and that prior to that period, efforts by legal proceedings, to recover tithe, had been (a) Crawf. & Dix, Ab. N. C. 19; since reported, 1 Jones, 11. made by the persons under whom the plaintiff claimed, but that the tithes then claimed were withheld by the parishioners, who denied the title of those persons to demand or recover them, and that these proceedings were abandoned; but this evidence the learned Judge refused to receive, on the authority of Lord Shannon v. Hodder (a). His Lordship charged the Jury, that the defendant's possession of the said lands, as appeared upon the evidence of Henry Supple, was sufficient to establish the defendant's liability for the composition for tithes payable in respect of the lands comprised in the lease, mentioned by Supple in his evidence, and directed the Jury to find a verdict for the plaintiff; upon which, counsel for the defendant insisted that there was evidence to go to the Jury to repel any inference arising from the defendant's possession of the said lands that the interest in the said term was vested by assignment in the defendant; and further, that his Lordship was bound to leave it to the Jury, upon the evidence, to say whether there was, in fact, any such assignment. His Lordship refused to leave this question to the Jury, but told them that, in his opinion, the matters given in evidence on the part of the plaintiff entitled him to a verdict. The Jury accordingly found for the plaintiff for £28. 11s. 3d. A bill of exceptions having been taken upon all the above objections made by the defendant, the case now came on to be argued; the defendant's counsel declining to argue those points which had been decided by this Court in the cases of Lord Shannon v. Hodder and Ashe v. Locke, but reserving to themselves the right of relying on them in the Court of Error, in case of an appeal. Mr. Maley, for the defendant.-By the 34th section of the 4 G. 4, c. 99, the liability for tithe composition was annexed to the occupation of the land; but by the 12th section of the 2 & 3 W. 4, c. 119,* where (a) See this case stated in the note, post, p. 223. The 2 & 3 W. 4, c. 119, sec. 12, enacts "That no person holding or occupying land in Ireland as tenant at will or tenant from 66 1839. LORD SHANNON STOUGHTON. 1839. LORD SHANNON v. ever the lands are in the occupation of a person holding as tenant from year to year, or at will, the liability is annexed to the ownership of the next greater estate. Now, here there was unquestionably a term for years carved out of the inheritance, and as there was not carved out of STOUGHTON. this term any other tenancy greater than a tenancy from year to year, the question is, whether the term was vested in the personal representative of Sir Robert Travers, or had been assigned or surrendered to the defendant? But the direct evidence went no farther than to shew a surren der or transfer of the possession, and not any transfer or surrender of the estate; and if the defendant entered by the permission of the person in whom the term was vested, or of any one deriving under that person, he was at most only a tenant from year to year, and consequently not liable. Whether there was any assignment or surrender by deed, was a question of fact, and therefore to be decided by the jury. There was direct evidence given of facts tending to the conclusion that the term demised to Sir R. Travers had been surrendered or assigned to the defendant, but there was no direct evidence given of the surrender or assignment. Then the jury were to supply the want of such direct evidence by an inference. There was, however, evidence which conflicted with that inference, and from which, therefore, the jury might have drawn an inference the very reverse of that which was necessary to sustain the plaintiff's case; and the Judge, instead of leaving the question to the jury, decided it himself; but he did so at the instance and at the peril of the plaintiff. At the trial, the learned Judge stated he was somewhat influenced as to the course he should take, by his recollection of a case in 4 Term Reports. The case alluded to was Derisly v. Custance (a); but it has no application to the present, as it merely decided that in covenant (which runs with the land), evidence that the defendant is in as heir-at-law, will support a declaration charging him as assignee. If the facts proved were such as the jury must have drawn the inference from, the learned Judge was right; but if they were only such as a jury might have drawn such an inference from, he was bound แ (a) 4 T. R. 75. "upon the person having the next such estate or interest for and during the continuance 66 thereof, until such liability shall eventually attach and devolve upon the person having the fee-simple and inheritance of such land, who shall be and remain for ever "subject thereto: provided always, that such transfers of liability shall be without prejudice to any arrears of composition which may have accrued due at the times of "such transfers respectively, and to all remedies for the recovery of such arrears; and provided always, that if any such tenant at will or yearly tenant shall continue in possession after such first day of November, 1833, of such land so liable as aforesaid, "without entering into any new agreement with his landlord, such landlord so becoming "liable shall be entitled to recover from such tenant so continuing in such possession, in “addition to the rent then payable by him, the amount of such composition theretofore "payable by such tenant; the same to be recovered by all the ways and means, and as "if the same were part of and added to said rent, by agreement between such landlord "and tenant originally." to direct them to find according to their belief. Doe v. Williams (a); Doe d. Fenwick v. Read (b); Doe d. Courtail v. Thomas (c). 1839. LORD SHANNON บ. Mr. Leslie and Mr. Reeves for the plaintiff.-It is well established, that in cases of exception to a Judge's charge it is not sufficient for STOUGHTON. the counsel excepting to complain of every part of the charge, but he is bound at the time to state specifically, and to point out by the exception the mode in which he calls upon the Judge to charge the jury upon that part of the case. Ball v. Manning (d), and many other cases establish this position. The question here then upon the exception now argued is simply this; was there, in the language of the exception, evidence in the case to rebut the prima facie presumption of liability arising from the possession of the land, and receipt of the rent as appearing on the evidence; and ought the Judge, in the language of the exception, to have left a question to the jury, whether there was or not an actual deed of assignment of these lands executed to the defendant by Shea? It has been endeavored to put this case as if the evidence of Henry Supple alone was to be considered, upon which some little doubt might be raised, from the way in which it is stated in the bill of exceptions. However, the final charge of the learned Judge to which the exceptions are pointed, is founded upon the whole evidence, and the argument of counsel on both sides at the close of the case; from which, and the evidence of Supple and M'Daniel, the admitted facts are, that on the 18th September, 1837, the possession was given up to the defendant; that he received from under-tenants holding from year to year the September rents of all but the demesne lands, and that of the latter he has from the 18th of September continued in the actual possession. Upon this state of facts then, what is the evidence to rebut the prima facie presumption arising from them? Admitting that such a lease as that described was proved to have been made twelve years ago by the defend ant to Sir Robert Travers, does that alone rebut the prima facie evidence here? For what is the nature of such presumption ? It does not imply anything as to the species of estate which it presumes to be in the party, but merely that the party who is in the enjoyment is the person liable, until he shews the contrary. The defendant, therefore, was bound to go farther, and to shew in whom that lease was now vested by derivative title, if not in him; otherwise, the mere proof that twelve years ago A. B. had a lease of the lands could not be evidence without more, to rebut the presumption of liability arising from enjoyment of the lands. But, secondly, even supposing it is proved here, that on the 18th (a) 6 B. & Cr. 41. (b) 5 B. & Al. 233. |