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E.

Unless the tenant and landlord together have agreed in writing since the 1883 Act came into operatiou the agreement made before that time holds good.

An instance recently came under my notice where a tenant wished to go out at six months in accordance with his agreement dated before the Act (ame into force. Being a good tenant the landlord wished him to stay twelve months. The tenant elected to go out on his old agreement, but by so doing he lost his claim to compensation under the 1883 Act, the fact of taking advantage of the old agreement being held to be compensation within the meaning of the Act.

W. J. MALDEN, Associate.

Replies to Query CCXCIV. (Vol. VIII., p. 19).

TOWNSHIP-EXTRA PAROCHIAL-HIGHWAYS RATE.

A.

There is some information in Glen's Highways, in a note to Section 32 of the Highway Act of 1863.

It seems that under the Local Government Act 1894 the authorities can charge this estate with cost of maintenance of highways, but the point raised is an extremely interesting one, and involves an extensive reference to arrive at the origin and meaning of “ Extra Parochial.”

R. GODFREY, Fellow.

B.

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Holdsworth in his “Handy Book on Parish Law," page 2, after describing how parishes were originally formed, says: ** Besides those portions of the kingdom which thus became included in parishes, there were other lands which, either because they were in the hands of irreligious or careless owners, or were situate in forests or deserts (Blackstone's Commentaries, p. 114), or for any other unsearchable reasons, were never united to any parish, and were therefore extra parochial.” Then he adds :

Although such places are still in a certain sense extra parochial, they no longer enjoy the immunity from local burdens which they formerly * possessed.” By 20 Vict., c. 19, Sect. 1, it is enacted that every place entered separately in the Registrar-General's Report on Census of 1851, or which is there reported to be extra parochial, and wherein no rate was then levied for the poor, shall for all the purposes of the assessment to the poor rate, the relief of the poor, the county police or borough rates, the burial of the dead, the removal of nuisances, the registration of parliamentary and municipal voters, and the registration of births and deaths, be deemed a

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parish for such purposes. Then the Poor Law Amendment 1866 Act provides that “In all statutes except there shall be something in the ** context inconsistent therewith the word “parish' shall among other

meanings applicable to it signify a place for which a separate poor rate is or can be made or for which a separate overseer is or can be appointed.”

Thus for all poor law purposes extra parochial places were made contributory to the poor rate.

The question in the present case is whether or not under the Local Gorernment Act 1894 (by which it is provided that highway expenses incurred in rural districts shall be payable out of the poor rate) this extra parochial parish, which has hitherto paid poor rates, but not highway rates is liable to contribute towards the highway expenses of the rural district within which it is situate, because such expenses are now payable out of the poor rate. In a local case (Earl of Lonsdale v. West Ward, Westmoreland, Rural District Council) recently heard upon appeal at quarter sessions, the court laid down that where certain lands have been exempt from the highway rates by reason of their being liable ratione tenure to the repair of certain public roads they are not liable to contribute towards that portion of the poor rate which is levied in respect of the highway expenses of the district council, the court having been of opinion that Section 33 of the Highways Act 1835 had not been repealed.

The case in the question differs from this one from the fact that the extra parochial land is not intersected by any public highway, and is not liable ratione tenuræ to repair any such public road or highway.

It is therefore very questionable whether this extra parochial land is exempt from liability to contribute to the highway expenses of the local district council, and indeed whether it has not been illegally escaping contribution to the higbway rate for some years past.

F. PUNCHARD, Fellon.

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Under Section 25 Local Government Act, 1894, the District Council became the highway authority for the whole district (unless the operation of this clause was temporarily suspended by an order of the County Council).

As the expenses incurred by a council of a rural district, are to be defrayed in the same manner as expenses under the Public Health Act, whatever expenditure comes under the head of general expenses will be paid out of the common fund, raised out of the poor rate-special expenses are charged on a contributory place—and highway expenses under exceptional circumstances, may, it would appear, be made special expenses (Section 29 c.) but under all ordinary circumstances the cost of highways would seem to be a general expense payable out of the common fund of the District Council, and therefore out of the poor rate.

WILLIAM LITTLE, Fellon.

D.

This is strictly a legal question, and a legal opinion should be taken.

As a layman, I understand this question and the reply to be as follows -for what it is worth :

Under the General Highways Act, 5 and 6 Will. 4, c. 50, highway rates are made by the surveyor of highways, and allowed by two justices, and published and collected in the same way as poor rates.

Under Section 33 of this Act, when property, or the owner or occupier in respect thereof, was previous to the passing of this Act legally exempt from the performance of statute duty, or from the payment of any composition in lieu thereof, or of highway rate, the said property, and the owners and occupiers thereof are exempt from the payment of the rate.

This, I take it, is the meaning of Extra-Parochial.”

By 27 & 28 Vict., c. 101, s. 9, the justices in petty sessions may appoint overseers, or otherwise deal with an extra-parochial place with a view to constituting a highway parish or part of a highway parish, in the same manner as the justices may deal with such extra-parochial places in the matter of rate for relief of the poor, etc., pursuant to 20 Vict., c. 19, s. 1.

and seq.

This is what has probably happened in the case quoted.

CHARLES BIDWELL, Fellon.

Replies to Query CCXCV. (Vol. V111., p. 20.)

COMMONS ENCLOSURE-RECOVERY OF TITHE PAID IN ERROR.

A.

In my opinion it is clear that in the absence of a legal re-apportionment of the tithe, the field upon which it was originally apportioned would remain liable for it.

The fact that this field was chargeable with tithe may have been taken into account by the valuer acting in the enclosure, when he allotted A an allotment, being part of the common, in lieu of this field.

It is not fair to assume without careful enquiry as to the history of the transaction that the tithe on this field should necessarily be transferred to the allotment.

The evidence as to the vicarial tithe points the other way, namely that it was intended that the tithe (vicarial and rectorial) should remain on this field. As to the recovery of the tithe paid by A in error-this is a point upon which legal advice should be taken--I should take it that be can recover six years paid by mistake.

CHARLES BIDWELL, Fellow.

B.

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The point comes under 9 & 10 Vict., c. 73, sect. 13. The impropriators collection list is right and the vicarial list is wrong. The incidence of the tithe rent-charge is transferred from the field given up, to the allotment awarded in lieu of it. See Whalley's “ Tithe Acts,' p. 218, Studd's “ Law of Tithes and Tithe Rent-charges," p. 57. A is not entitled to be repaid any back tithe ; it has been correctly charged to him. An altered apportionment should have followed the inclosure, but there are many cases where the landowners did not apply. The Board of Agriculture should have power to order compulsory re-apportionments in such cases, as it is frequently impossible for an outsider to ascertain the tithe rent-charge on lands the subject of the inclosure.

J. H. SABIN, Professional Associate.

C.

From the time A ceased to be the owner of the field he ceased to be liable to pay the tithe upon it. If there was nothing special in the Exchange Award of 1854 the tithe on the field would, as contended by the impropriator's solicitors, be payable out of the allotments received in exchange, and all parties should unite in getting the tithe reapportioned on the allotted land ; then A would probably have a claim for 6 years reapportioned tithe against the several allottees according to the amount placed upon the several allotments.

L. BURD, Fellon.

D.

In exchanges under the old Inclosure Commissioners or the present Board of Agriculture, the tithe only passes from one piece of land to the other, and not the charges thereon. This is obvious, for if, as is often the case, the lands that are the subject of exchange are situated in separate parishes with varying amounts of Tithes, Land Tax or other charges, clearly these could not be shifted over into another parish, perhaps 50 or 100 miles away. Any variation in these fixed charges, is dealt with by the valuer, and additional land is given to equalise them pro tanto.

The Impropriators' solicitors are therefore wrong in their contention, and A would be very foolish to concur in an application for a reapportionment. I am of opinion that A can claim repayment of the tithes paid in error (see Durrant v. Ecclesiastical Commissioners 6 0. B. D. 234) but probably the statnte of limitation would prevent his obtaining a return of more

than six years.

E. A. RAWLENCE, Fellow.

E. If, as they should have done after the enclosure in 1854, to meet the sultered circumstances, the owners had had an altered apportionment of the tithe rent-charge made and confirmed by the Tithe Commissioners under 9 and 10 Vict., c. 73, the tithe rent-charge originally charged on the portions of land which bad been taken or allotted away from the former owners on such enclosure would, as provided in Section 13 of that Act, have been charged on the lands which had been received in the way of substitution or compensation for the lands so taken away from the former owners thereof; and A might have been found to be the proper person to have paid not only the impropriate tithe rent-charge, which he has been paying, but the vicarial rent-charge also, which the impropriator has paid in respect of the field (formerly A's) allotted to him.

An altered apportionment after enclosure can be initiated by the titheowners or the landowners, but until one has been made and confirmed the tithe rent-charge remains a charge on the field as it stands in the original or last confirmed altered apportionment, and would be recoverable, if not paid, from it.

The question as to the return of some of the back payments is not provided for in the Tithe Acts, and would seem to be one of common law.

HARLEY M. GRELLIER, Fellow.

F.

Unless some special provision was made in the enclosure award, the tithe still remains chargeable upon the field out of which it was formerly payable. A is therefore entitled to repayment of the amount improperly charged to und collected from him, so far at any rate as the amount for the six years for which the statute of limitations provides.

F. PUNCHARD, Fellow.

Replies to Query CCXCVI. (Vol. VIII., p. 20.)

AGRICULTURAL HOLDINGS (ENGLAND) ACT 1883, SECTION 56.

A.

I am of opinion that the whole of A and B's claim is invalid. Section 5 provides that any claim under the third part of the First Schedule may only be made by a tenant under a “contract of tenancy.” In the Interpretation Clause, Section 61, - • Contract of tenancy 'means a letting " of or agreement for the letting land for a term of years or for lives, or “ for lives and years, or from year to year."

As the arrangement with A and B was only for a year certain, the Act obviously does not apply, and therefore and B are only entitled to such compensation as they can claim by custom of the estate or country, which certainly would not include any interest in the previous tenancy.

E. A. RAWLENCE, Fellon.

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