1824. May 22d.

by the rector of

a parish in London, stated

the decree pursuant to the

stat. 37 H. 8. c. 12, by which payment of tithes was de

and in case that

OWEN, Clerk, v. Nodin.

A bill for tithes THE (amended) bill stated the decree (a), made on the 24th February, 1545, in pursuance of the act of parlia ment, for tithes in London, by which it was decreed that the inhabitants of London should pay tithes quarterly at the rate of 2s. 9d. in the pound. That the plaintiff, as rector lawfully presented, &c. previously to March 1823, at 28. 9. in the of the parish and parish church of St. Olave, Hart Street, pound on rents; in the said city, had ever since been, and then was, enshould be deemed titled to receive their tithes from the inhabitants, and ocnot to be binding, cupiers of houses, &c. within the said parish, at and after the rate expressed in the said decree. It suggested pretences that the decree was not duly made, or if made was not enrolled in Chancery pursuant to the statute, by authority of which it was made; whereas, plaintiff submitted, that no enrollment was necessary for giving it effect, and 4d. for four but charged that the decree was duly made and enrolled. offering days, in The bill also charged, that in case the said decree should be deemed not to be binding upon the inhabitants of the said parish, plaintiff was entitled to claim tithes, or dues,

it charged, that a previous de

cree made in

the year 1535,

and confirmed by an act of 27 H. 8. appointing the sum of 25. 9d.

in the pound,

lieu of tithes

and oblations

in London, was still in force ; and in case nei¬

ther of the said

decrees were binding, it charged, that

or payments in the nature of, or in lieu of tithes, according to the aforesaid rate, or according to some such, or the like rate; for that previously to the making of that the plaintiff was entitled by andecree, the inhabitants of London, and the rectors and cient usage and vicars of the several parishes therein, came to an agreecustom, from time immemorial ment to stand to such order or decree, touching the

preceding the

27 H. 8., under tithes, &c. to be paid within it, as should be made by the

which the rec

tor for the time being received

certain dues

and oblations,

(a) For which, see the stat. 37 H. 8. c. 12.

calculated according to the rent, which amounted to 2s. 9. in the pound, and upwards. A demurrer for multifariousness was overruled.

Archbishop of Canterbury, and the Lord Chancellor for the time being, with such others of the privy council as should be fixed upon by his late Majesty K. H. 8th ; whereupon the said Archbishop, and Lord Chancellor, with others of the privy council appointed, duly fixed the amount of the tithes, &c. at the rate of 2s. 9d. in the pound, and 2d. for four offering days; which decree was confirmed by a certain act of parliament passed in the 27th H. 8. (a); and the inhabitants of London, &c. were directed by the said act to pay tithes, according to the terms of the last-mentioned decree, until such time as any other order, or law, should be made by the King's Highness, and two and thirty persons by his Grace to be named. That no order or law was made relating to the said tithes, in, or subsequent to the 27 H. 8., unless the said decree of 24th February, 1545, and the said act of 37 H. 8. was, and is, each an order and law: wherefore, unless the last decree is in force, the previous decree, made in the year 1545, is still in force and effect.

That even in case neither of the said decrees were binding, plaintiff would still be entitled to receive tithes according to the aforesaid rate, or according to some such rate; for that from time immemorial preceding the 27th H. 8., the rector of the parish for the time being, had been by ancient usage and custom entitled to receive, and had received from the inhabitants, certain dues and oblations upon certain days called offering days; and such dues and oblations, which were calculated according to the yearly rent, or value by the year, of the house, in the occupation of such inhabitants respectively, amounted to the sum of 2s. 9d. in the pound, and upwards; and that the said sum of 28. 9d. in the pound, at least, was accordingly before the passing of the act of the 27th H. 8., and

(a) 27 H. 8. c. 21.

1824.

OWEN,
Clerk,

V.

NODIN.

1824.

OWEN,
Clerk,

v.

NODIN.

the decree of 1535, payable to the rector. The bill prayed an account and payment of the tithes due by the defendant, as occupier of a house and premises within the said parish.

The defendant demurred to the whole bill; and for cause of demurrer, shewed that the bill was exhibited against him for several distinct matters and things, claimed under distinct titles which were inconsistent with each other; and that it did not appear by the said bill on which of such titles complainant intended to proceed against defendant, and by reason thereof the pleadings, evidence, and proceedings in the progress of the said suit would become unnecessarily prolix, intricate, and uncertain; and defendant, if he should be compelled to answer, and enter into evidence to support his several defences, would be put to unnecessary expence, contrary to the constant practice of the Court.

Denman, C. S. Abercrombie, and Koe, for the demurrer. The bill does not state any specific demand founded upon any single title; but alleges three different modes and amounts of payment, grounded upon three distinct titles. Allowing one claim and title to be good, the two others must be void. A distinct particular claim ought to have been set forth, with which the defendant might grapple. The claim is uncertain on the face of it, and does not admit of a distinct answer. The Court ought to insist, in the first instance, on the plaintiff's making a proper selection of ground on which to rest his case, and protect the defendant from the unnecessarily tedious and expensive litigation to which the bill in its present shape must lead. It was the duty of the plaintiff to have enquired, and satisfied himself of his rights, and then made an intelligible demand. The same plea would not hold to all those claims. All the writers on pleading treat uncer

tainty as a good ground of demurrer. In Cooper's Equity
Pleading (a), it is laid down, that "if a bill does not
state a case with sufficient certainty, the defendant may
demur." The same may be said of a multiplicity of
questions, under the pretence of one suit. Harrison

v. Hogg (b), Ward v. The Duke of Northumberland
and the Earl of Beverley (c), Kensington v. White (d),
The Attorney General v. The Corporation of Carmar-
then (e). [GRAHAM, B.
[GRAHAM, B. The answer would perfectly
simplify the matter.] The defendant can give no answer
to an alternative claim: the plaintiff can stand but
upon one right, and therefore the defendant can be
bound to make but one answer. [ALEXANDER, L. C. B.
If you are right, would it not follow, that the rector might,
on the same day, file three several bills against the same
defendant?] Then the defendant would be justified in
saying that two of the bills were quite unnecessary, and
in soliciting the Court to oblige him to elect that upon
which he would proceed. The stating part of the bill is
confined to the decree made in pursuance of the 37 H.
8, the validity of which depends on its enrollment, a fact
as yet doubtful; and the frame of the bill prevents the
plaintiff from pleading want of enrollment. But it never
has been heard that a Court of Equity pronounced a decree
on the charging part of a bill. [Lord Chief Baron. Did
you ever know of a decree founded upon that distinction?]
There never has been an instance of the plaintiff being
obliged to pray a decree on the charging part of a bill.
Crosseing v. Honor (f), East India Company v. Hench-
man (g), Cholmondeley v. Clinton (h). 2 Gwyl. 472.

(a) Page 181.

(b) 2 Ves. jun. 323.

(c) 2 Anst. 469.

(d) 3 Price, 164.

VOL. I.

R

(e) Coop. 30.

(f) 1 Vern. 180.

(g) 1 Ves. jun. 287.

(h) 2 Mer. 71. 2 J. & W. 1.

1824.

OWEN,

Clerk,

v.

NODIN.

1824.

OWEN,
Clerk,

V.

NODIN.

Martin, H. contrà. This demurrer is novel; it has not been stated of what nature it is.

Koe. It is in the nature of multifariousness.

Martin, H. Lord Redesdale's observations on multifariousness apply to the case of swelling the pleadings with distinct claims against several defendants (a). The charging parts of the bill are used to confirm the title stated in the stating part, and are perfectly consistent with it.

The Court intimated that it was unnecessary for the counsel for the bill to proceed fnrther.

ALEXANDER, L. C. B. This demurrer is admitted to be on the ground of multifariousness. I certainly never in my life knew a bill of this kind demurred to on that ground. Generally bills demurred to for multifariousness, have been bills filed by one plaintiff against a great number of defendants, for distinct matters, or by three or four plaintiffs claiming different things against one defendant.

This bill is not one of either description. This clergyman makes a claim as rector to tithes: he has a common law right. The legislature have by these acts of parliament regulated at different times what he is to receive from the parishioners, perhaps in commutation of other dues to which he was entitled by the common law. It is the same right, to be established by one out of different ways. If a demurrer would lie to such a bill as this, I think it would lie in a great many cases of the same kind, where bills are commonly brought. This ground of multifariousness fails, because this is the most convenient and least expensive mode which the plaintiff could have chosen to put his case. At equity, if a plaintiff has one or other

(a) Vide L. Redesd. Tr. Ch. Pl. 146, 147. 2d ed. Cooper's Ch. Pl. 182.