apon examination, the suit turns out to be, not a suit touching the right to any tithes, but a suit between two rival claimants of tithes, the existence of the tithes not being called in question. To hold that such a suit comes within the meaning of sect. 45 would be to hold that the provisions of sect. 71 are perfectly nugatory. Under the latter section the rival parties might still try their title to the rent-charge, after the award had been *made; so that the decision of the Commissioner *156] could not be, as sect. 45 declares that all his decisions upon the questions there enumerated shall be, "final and conclusive." ERLE, J., concurred. Rule discharged.(a)

(a) Reported by Francis Ellis, Esq.

The QUEEN, on the prosecution of the Marquis of BRISTOL and Others v. The TITHE COMMISSIONERS for ENGLAND and WALES. Feb. 21.

(Re HALE Tithes.)

Mandamus, directed to the Tithe Commissioners, alleged that they had proceeded to effect a commutation of the tithes of the parish of H.; and that, during the proceedings, certain differences, whereby the making of their award was hindered, arose between landowners in the parish and the vicar, viz., whether certain old enclosed lands were exempt from the render of great tithes in kind, and of tithes of wool and lamb in kind, or, if not so exempt, whether they were subject only to the payment of ls. per acre yearly, in lieu of the said tithes, to the impropriator; and whether certain new enclosed lands were wholly exempt from the render of grest tithes in kind, and of tithes of wool and lamb in kind. The writ commanded the Commissioners to hear and determine the said differences.

Return: That at a former meeting of the Commissioners, for the purpose of awarding the amount of rent-charge payable by a township of the said parish, the vicar claimed the tithes of lamb and wool, the impropriate rector protesting against such claim, and the landowners contending that by an agreement, confirmed by a decree in Chancery in 1699, all the tithes of the parish had been commuted. That at a subsequent meeting, the Commissioners having given notice that it would be held for the hearing and determining certain differences whereby the making of their award was alleged to be hindered, the vicar proposed that his title to the tithes of wool and lamb should be tried by a feigned issue, the Commissioners first awarding the amount of rent-charge to be paid in lieu of them to the party entitled; that the landowners insisted that the tithes of lamb and wool had been extinguished by agreement and by decree in Chancery, and that a difference existed between the landowners, vicar, and impropriator concerning the said tithes; and they called upon the Commissioners to determine the question. That it was then arranged that, if the parties would not consent to try as above, the landowners might apply for a mandamus to the Commissioners to try the question whether the said tithes belonged to the vicar or to the landowners as impropriators of the tithes of their respective lands. The return also stated that the said question, raised at the last-mentioned meeting, was one of title. It then set out a bill in Chancery, filed in 1812 by the then vicar against certain landowners, for subtraction of tithes, in which the question was raised whether the lands of the parish were ever liable to pay tithes of lamb and wool to the vicar; and also a decree in the said suit, in 1817 (by which it appeared that the defendants therein contended that by an agreement, confirmed by decree of Chancery in 1699, part of certain enclosed lands was allotted to the vicar in lieu of all tithes arising to him from the said lands,(«) and by a further agreement, in 1707, the landowners agreed to pay the the vicar 14d. per acre in lieu of all small tithes throughout the parish), which decree of 1817 ordered the master to take account of the tithes of wool and lamb, as due to the vicar, dismissing his bill as to tithes of hay. The return then stated a bill in Chancery, filed in 1819, by the impropriate rectors against the vicar, claiming the tithes of wool and lamb, which bill was dismissed with costs.

(a) See p. 160, note (a).

It then stated perception of the tithes by the vicar; and that the Commissioners, considering that the said decrees established the right of the vicar to tithes of lamb and wool, declined to comply with a requisition of the landowners, calling on them to confirm the agreements of 1699 and 1707, under stat. 5 & 6 Vict. c. 54, s. 7, and refused to decide the question of title. That, in 1845, the said landowners obtained a mandamus to confirm the agreements and decide the differences pending, and that, on return made, and demurrer, judgment was given for the Commissioners. That the assistant Commissioner, in 1850, made his award, which, after a fortnight's notice to the landowners, to give them an opportunity of advancing any further claim, was confirmed; and which awarded that all titheable lands in the parish were subject to payment of all tithes in kind, that certain persons therein named were impropriators respectively of the great tithes in the parish, and that the vicar for the time being was in possession of the tithes of wool and lamb, and entitled to the residue of the tithes; and awarded certain rent-charges, in lieu of tithes, to the impropriators, and to the vicar "or to the party lawfully entitled," in lieu of tithes of wool and lamb, and of the said residue of tithes.

Held, on demurrer to this return, that, upon the whole record, the question raised was purely a question of title between the impropriator and the vicar, and that no difference existed between the landowners and the vicar which hindered the making of the award and which the Commissioners were therefore bound to hear and determine.

Quare, whether the writ was not bad, as raising, on the face of it, a question of title.

MANDAMUS. The writ charged that the Tithe Commissioners duly proceeded, under stat. 6 & 7 *W. 4, c. 71, to effect a commuta[*157 tion of the tithes of the parish of Great Hale, in the county of Lincoln, and that, during the said proceedings, divers differences arose whereby the making of their award according to the said Act was hindered, whereof they had notice; that is to say, a certain difference between the owners of certain lands in the said parish, called and known as the old enclosed lands, and the Rev. R. Bingham, then being vicar of the said parish; the said landowners claiming and insisting that the said old enclosed lands were wholly exempted from the render of all great tithes in kind, and of all tithes of wool and lamb in kind, or, if not so exempted, that they were subject only to the payment of 18. per acre yearly, to wit, to the impropriator of the said parish, for and in lieu of the same tithes ; (a) and a certain other difference, between the owners of certain other lands in the said parish, called the new enclosed lands, and the said vicar; the last *mentioned landowners claim[*158 ing, &c., that the said new enclosed lands were wholly exempted or discharged from the render of all great tithes in kind, and tithes of wool and lamb in kind: which several claims the vicar then denied. The writ commanded the Commissioners to hear and determine the said differences.

The return alleged that, on 24th March, 1843, the Tithe Commissioners issued a notice that, on 24th April next, they would proceed to ascertain and award the sum to be paid by way of rent-charge instead of the tithes of the township of Great Hale in the parish of Great Hale. That the meeting was held on 24th April, before an assistant Commissioner, at which the agents for the several parties concerned attended; and that the agent of Sir George Farrant, the impropriate rector, then protested against the vicar's claim to the tithes of lamb and wool; and the agent for the landowners of the parish then con(a) See p. 160, note (a). VOL. XVIII.-11

tended that, under and by virtue of a decree of the Court of Chancery, dated 1699, all the tithes of the parish had been commuted; and the agent of the vicar then contended that the vicar was entitled to the tithes of lamb and wool. That the said meeting was adjourned; and that, on 22d January, 1844, the Tithe Commissioners gave notice that, on 22d February then next, they would proceed to hear and determine certain differences which had arisen, "whereby the making an award for the commutation of the tithes of the said parish of Great Hale was alleged to be hindered and obstructed." That, on 22d February, the meeting was accordingly held before an assistant Tithe Commissioner, when counsel on behalf of the vicar proposed that the title of the vicar to the tithes of wool and lamb should be tried on a feigned issue, and that the Tithe Commissioners should award a rent-charge in lieu of *159] *great tithes to the landowners in the said parish, a rent-charge in lieu of the tithes of wool and lamb to the party entitled thereto, and a rent-charge in lieu of the other small tithes to the vicar; and counsel on behalf of the said landowners then claimed and insisted that the said tithes of wool and lamb were extinguished by virtue of a certain agreement and a decree of the Court of Chancery, and that a difference was then existing between the said landowners, vicar, and impropriator, concerning the said tithes of lamb and wool; and the said counsel called upon the assistant Tithe Commissioner to determine whether or not the vicar was entitled to the said tithes of lamb and wool. That counsel for the vicar then claimed the same tithes as belonging to him. That it was agreed that the said parties should have time to consider whether they would not consent to try a feigned issue as to the title to the said tithes of lamb and wool, and that if they did not so consent, the landowners should be at liberty to move the Court of Queen's Bench for a mandamus to compel the Tithe Commissioners to try the question, whether the said tithes belonged to the vicar, or to the landowners as impropriators of the tithes of their respective lands. And the return alleged that "the question raised at the said meeting concerning the said tithes of lamb and wool was a question of title.”

The return proceeded to state that, in 1812, the present vicar filed a bill in Chancery against certain occupiers of land in the said parish for the subtraction of tithes (including lamb and wool), and that a question was raised by the said suit for the decision of that Court, whether the lands of the said parish were ever liable to the payment of tithes of lamb and wool in kind *to the vicar, and whether from time im*160] memorial the said lands had not been wholly free from the payment thereof. That, on 14th November, 1817, a decree of the Court of Chancery was made in the said suit (which decree was set out, and by which it appeared that the defendants contended that, by an agree ment in 1697, confirmed by a decree in Chancery in 1699, between the then vicar and certain occupiers of lands in the said parish, a part of

certain newly enclosed lands was allotted to the vicar in lieu of all tithes arising to him from the said enclosed lands;(a) and, by a subsequent agreement in 1707, between the then vicar and landowner, 13d. per acre was agreed to be paid to the vicar by the said landowners in lieu of all small tithes throughout the parish); which decree of November, 1817, ordered, among other things, the Master to take an account of the tithes of lambs and wool as being due to the vicar, dismissing his bill as to tithes of hay, also claimed by him. That, after this decree, all the defendants in that suit, except one William Dawson, who was tenant to the impropriate rector, paid the vicar five years' arrears of tithes so decreed to him.

The return then stated that in 1819 the then impropriate rectors filed a bill in Chancery against the present vicar for the tithes of wool and lamb, setting up, among other things, the said decree of 1817; and that, on the 25th January, 1821, the bill was dismissed with costs. That, in 1821, the said W. Dawson preferred a petition to the Court of Chancery, to exhibit a supplemental bill *in the original suit in which the decree of 1817 was made, and to prove that the vicar [*161 was not entitled to tithes of lamb and wool, or any compensation or satisfaction for the same, which petition was ordered to be dismissed with costs; and an appeal against such order was also dismissed. That, after this last decree, the said W. D. paid all the arrears of tithes decreed to be paid by him, including the arrears of the tithes of lamb and wool. That, since 1817, all the tithe payers in the parish, except the said W. D., had paid or compounded for the tithes of lamb and wool to the vicar; that the Tithe Commissioners, considering that the said decrees established the principle that the said tithes of lamb and wool were payable to the vicar in kind, and that neither the rector, nor any other person whatsoever, other than the vicar, had ever any title to the said tithes, sent, on 5th June, 1845, an answer as follows to a requisition made to them by the agents of the landowners.

"Gentlemen. In answer to your requisition to the Tithe Commissioners for England and Wales, I am directed to inform you that their power to confirm agreements touching tithes made before the passing of the act 6 & 7 W. 4, c. 71, is confined to such agreements as are not of legal validity.(6) The Tithe Commissioners are of opinion that, as between the landowners and the impropriate rector of the parish, the agreements you refer to are valid, and therefore that it would be improper in the Tithe Commissioners to affect to give validity to what requires no confirmation on their part. So far as the vicarial rights are concerned, the Tithe Commissioners are, indeed, of opinion that

(a) The return in this case did not set out the further agreement, at the same time, by the fandowners, to pay to the impropriate rector 18. per acre, yearly, in lieu of tithes arising to him from certain other old enclosed lands. See, however, the writ; also Regina v. Tithe Commissioners, 14 Q. B. 459, 461 (E. C. L. R. vol. 68).

(b) See stat. 5 & 6 Vict. c. 54, s. 7.

the said agreements are not valid; but they do not therefore *162] feel that they are bound to confirm them; and, after giving the subject their best consideration, they decline doing so. I am further to inform you that, looking at the perception of tithes by the vicar, and the rights which, under the 12th section of the Act for the Commutation of Tithes, such perception gives, considering also the decree made by the Court of Chancery in 1819, dismissing with costs the bill of the impropriator praying to be declared owner of the tithes of lamb and wool in the said parish, they think they are bound to act on the principle of that decree, and, adverting to the 44th section of the Tithe Act, and bowing to the dicta of several of the Judges of Her Majesty's Courts at Westminster, intimating that the Tithe Commissioners ought not to deal with questions of title, they have before them all the requisites for making an award, and decline making the previous decisions you require."

The return then alleged that, in 1845, an application was made to this Court by the said landowners for a writ of mandamus to compel the Tithe Commissioners to confirm the agreements, and to decide and determine the differences then alleged to be pending. The return then stated the issuing of the writ and the return to it, and the demurrer thereto, and judgment for the Commissioners. (a) That, on 21st February, 1850, the assistant Tithe Commissioner made his final award concerning the commutation of the tithes in the said parish; after which the agents of the landowners had a fortnight's notice that the Tithe Commissioners were about to confirm the award; and, the landowners not having given any notice of their intention to raise the question now raised, *the said Tithe Commissioners, considering *163] "that the said disputes and differences were not such as should hinder or did hinder the making" their award, on 28th February, 1850, duly confirmed the said award.

The award was then set out, which found that 5841 acres, 2 roods and 23 perches in the parish were subject to payment of all manner of tithes in kind; and that Sir George Farrant and Thomas Farrant, Esq., were impropriators of all great tithes arising upon the ancient enclosures of the township of Great Hale; and that Richard Godson, Esq., was impropriator of all great tithes arising upon the ancient enclosures of the township of Little Hale; and that the owners of all the rest of the lands in the parish were impropriators of all great tithes arising upon their respective lands; and that the vicar for the time being was in possession of the tithes of wool and lamb arising upon all the titleable lands of the parish, and was entitled to all the residue of the tithes of the parish: And it proceeded to award an annual rentcharge of 101. 68. 4d. to Sir G. Farrant and T. Farrant; 31. 13s. 8d. to Mr. Godson; 11621. to the several landowners of the parish in the

(1) Seo Regina v. Tithe Commissioners, 14 Q. B. 459 (E. C. L, R. vol. 68).