mortgage to Henry Greenwood and Christopher Bolland.

The bill stated, that Christopher Bolland was dead, but his representatives were not made parties to the suit. The cause coming on to be tried,

Mr. Pemberton and Mr. Beavan objected, that the case could not proceed in the absence of the representatives of Christopher Bolland: that although at law the debt and security survived to Henry Greenwood,

yet, in equity, Greenwood and Bolland

were tenants in common.

Coote on Mortgages, p. 620.

Mr. G. Richards and Mr. Koe, contrà. Mr. Kindersley, Mr. Rogers, and Mr. Twells, appeared for other parties.

The MASTER OF THE ROLLS decided, that the cause could not be allowed to proceed without having the representatives of Bolland made parties to the suit.

The plaintiff, as impropriate rector of the township of Asmotherley, in the county of York, had filed bills against the defendant and six other occupiers of lands, &c. in that township, for tithes which he claimed as arising from those lands.

The defendants, by their answers, denied his title to the impropriate rectory, or that they were at all liable to the payment of such tithes.

The proof of title depended on deductions to be drawn from a variety of deeds, vouchers, and other documentary evidence. The bills were filed prior to the passing of NEW SERIES, VIII.-EXCHEQ. IN EQ.

the 7 Will. 4. c. 71, commonly called the Tithe Commutation Act; but, after the passing of that act, and when the bills were ready for hearing, the following notice was sent by the Tithe Commissioners to the churchwardens and overseers of the township of Asmotherley :

"Commutation of Tithes.-Notice.The Tithe Commissioners of England and Wales hereby give notice, that, on the 21st of November next, they will proceed, either by themselves, or by an Assistant Commissioner, to ascertain and award the total sum to be paid by way of rent-charge, instead of the tithes of the township of Asmotherley, in the county of York, according to the provisions of the Act for the Commutation of Tithes in England and Wales, and that the first meeting for this purpose will be holden at the Queen Catherine Inn, in the said township, at ten o'clock in the forenoon of the day above mentioned, when all persons interested are desired to attend; and more especially all land-owners, who claim either a total exemption from tithes, in respect of any of their lands in the said township, or who hold that such lands are covered from render of all or any particular description of tithes in kind, by payment of any modus,

B

composition real, or prescriptive or customary payment, are required to put in such claims, by themselves or their authorized agents, that the same, if not disputed, may be inserted in the award.

"If there be any intention to apply for an increase or decrease of the average payments made in respect of tithes during the seven years of average prescribed by the Tithe Act, such intention must be signified to the Commissioners in writing, signed by persons whose interest amounts to one-half of the lands subject to tithes, or one-half either of the great or of the small tithes, or by the patron of the living; and such information must be given within one calendar month after the publication of this notice. Dated the 19th day of October 1838. 'By order of the Board,

66

"J. E. Hovenden, Sec." This was a motion on the part of all the defendants in these causes, except the defendant William Bromsworth, that the Court would stay all further proceedings in the causes, until the Commissioners for the Commutation of Tithes should have made their award, pursuant to the statute 6 & 7 Will. 4. c. 71. (1)

(1) By the 35th section, it is enacted, “That after the 1st of October 1838, the Commissioners shall proceed in manner hereinafter mentioned, at such time and in such order as to them shall seem fit, either by themselves or by some Assistant Commis. sioner, to ascertain and award the total sum to be paid by way of rent-charge, instead of the tithes, of every parish in England and Wales, in which no such agreement binding upon the whole parish as aforesaid shall have been made and confirmed as aforesaid: Provided nevertheless, that if any proceeding shall be had towards making and executing any such agreement after the Commissioners shall have given, or caused to be given, notice of their intention to act as aforesaid in such parish, the Commissioners may refrain from acting on such notice if they think fit, until the result of such proceeding shall appear."

The 37th section enacts, that the value of tithes are to be calculated upon an average of seven years, &c. preceding Christmas in the year 1835, &c.

By the 44th, it is enacted, that if any modus or composition real, or prescriptive or customary payment, shall be payable instead of the tithe of any lands or produce thereof in the said parish, the Commissioners or Assistant Commissioner shall, in such case, estimate the amount of such modus, composition, or payment, as the value of the tithes payable in respect of such lands or produce respectively, and shall add the amount thereof to the value of the other tithes of the parish ascertained as aforesaid, and shall also make due allowance for all exemptions from, or non-liability to tithes of any lands,

Mr. Barber, in support of the motion. In the suits pending in this court, the defendants deny the right of the plaintiff to the tithes in question, either as impropriate rector, or in peruancy, or under any right or title whatever, and say, that they are altogether tithe free. These suits were pending when the Tithe Commutation Act passed, and, if it rested on the 89th section alone, there might be some difficulty; but the 45th section empowers the Commissioners to appoint a time and place for hearing and determining these matters, and their decision is to be final, subject to an appeal by an issue at law, or by taking the opinion of the Court of Queen's Bench, &c. The Tithe Commissioners in this case have given the usual notice, that it is their intention to proceed, on the 21st of this month, to commute the tithes of the township of Asmotherley, and have summoned a meeting for that purpose; and the object of this motion is, to have the proceedings in these suits suspended here,

or any part of the produce of such lands: Provided always, that if it shall appear to the said Commissioners, or Assistant Commissioner, that any question concerning any modus or composition real, prescriptive or customary payment, or claim of exemption from or non-liability to the payment of tithes relating to the lands in question, shall have been decided by competent authority before the making of the said award, the Commissioners or Assistant Commissioner shall act on the principle established by such decision, and shall make their award, as if such decision had been made at the beginning of the said period of seven years."

Section 45 enacts, “ That if any suit shall be pending touching the right to any tithes, or if there shall be any question as to the existence of any modus or composition real or prescriptive or customary payment, or any claim of exemption from or non-liability under any circumstances to the payment of any tithes in respect of any lands or any kinds of produce, or touching the situation or boundary of any lands; or if any difference shall arise, whereby the making of any such award by the Commissioners or Assistant Commissioner shall be hindered, it shall be lawful for the Commissioners or Assistant Commissioner to appoint a time and place in or near the parish for hearing and determining the same; and the decision of the Commissioners, or Assistant Commissioner, shall be final and conclusive on all persons, subject to the provisions hereinafter contained.'

By the 46th section, such decision is subject to appeal by an issue at law, or by taking the opinion of a court of law thereon. Section 89 enacts, That nothing in this Act contained shall affect any right to any tithes which shall have become due before the commutation."