LOCKE

C.

JAMES.

that she may, through the medium of a court of equity, have another fund liable to her demand, cannot possibly affect our judg. ment. A court of law cannot look to anything but the legal rights of the parties; if, by means of the erasure and codicil, that which was originally a right to or a security for 600l. per annum, has now become a security for 2001. per annum only, the parties injured by the attempt to enforce the larger demand must have recourse to a court of equity for relief. The legal interest remains as it was originally.

That legal interest is a rent-charge of 600l. per annum, created by a will duly executed and attested. The gift of this legal interest has not been cancelled, for the erasure was made sine animo cancellandi. It has not been affected by the codicil, for the codicil is not duly attested, and therefore cannot even be looked at, so far as the real estate is concerned. On this short ground there must be Judgment for the defendant.

1844. July 6.

[287]

IN THE QUEEN'S BENCH.

IN RE THE TITHE COMMISSIONERS (YSTRAD-
GUNLAIS COMMUTATION).

(13 L. J. Q. B. 287-289.)

Tithes-Tithe Commutation Acts-Boundary-Jurisdiction-Prohibition. In one of two adjoining parishes in different counties, the commutation of tithes had been made by voluntary agreement, and in the other by a compulsory award of the Tithe Commissioners.

At the time of the commutations, and previously, a dispute had existed as to a boundary line between the two parishes, the same line being also the boundary line between the two counties. The Tithe Commissioners, against the consent of one of the parishes, proceeded to make an award to settle the boundary: Held, that under the Tithe Acts, 6 & 7 Will. IV. c. 71, s. 24 (1), and 2 & 3 Vict. c. 62, s. 34, they had no power to do so, and this Court restrained them by writ of prohibition.

Whether the writ of prohibition was the proper remedy-quere.

A RULE had been obtained, calling upon the Tithe Commissioners for England and Wales to show cause, why a writ of prohibition should not be issued, to prohibit them from making an award to settle the disputed boundaries between the parishes of Ystradgunlais in the county of Brecon, and Cadoxton juxta Neath in the county of Glamorgan.

(1) Rep. S. L. R. 1890.

In re THE TITHE COMMISSIONERS

LAIS COMMUTATION).

Sir F. Thesiger (Solicitor-General), E. V. Williams and Attree showed cause (June 11th), and Chilton supported the rule: The question was, whether under the several Acts of Parliament (YSTRADGUNpassed for the commutation of tithes, the Poor Law Commissioners had authority, against the consent of one of the parishes, to settle a disputed boundary between the parishes of Ystradgunlais and Cadoxton (in each of which parishes a commutation of the tithes had taken place, and was completed), the same boundary separating also the counties of Brecon and Glamorgan. The facts of the case, and the sections of the different Acts bearing upon it, are fully set out in the judgment. The statutes 6 & 7 Will. IV. c. 71, ss. 24, 45; 2 & 3 Vict. c. 62, ss. 8, 34, were referred to in the argument.

Cur, adv. vult.

LORD DENMAN, Ch. J. now delivered the judgment of the COURT: This was a rule calling upon the Tithe Commissioners to show cause why a writ of prohibition should not be issued to prohibit their making an award as to a disputed boundary between the parishes of Ystradgunlais and Cadoxton juxta Neath. The undisputed facts, as disclosed by the affidavits, are, that in 1839 a commutation of tithes for the parish of Ystradgunlais, in the county of Brecon, was entered into by agreement, under the authority of the Commissioners, and in 1841 a commutation of the tithes of the adjoining parish of Cadoxton, in the county of Glamorgan, took place under a compulsory award of the Commissioners; that there had existed for some years a dispute as to the boundaries of the said two parishes, at those points where the parishes were conterminous with the counties of Brecon and Glamorgan. It may be remarked here, that if such disputes existed before and at the time of the commutations above mentioned, in these parishes, it may be doubtful how far those commutations could have been finally effected, if the boundaries were unsettled; or, in other words, if it was and is uncertain what lands belonged to each, how a settlement of such commutation was effected. It further appears, that in consequence of such disputes, and for settling the same, the said Commissioners in December, 1842, gave notice to the attornies acting for the parish of Ystradgunlais, for a meeting to be held at the request of the parish of Cadoxton, for the Commissioners to set out and determine the boundaries of the parishes, at the same time expressing a doubt as to their jurisdiction, on account of the boundaries of the parishes being

[ *288 ]

In re
THE

conterminous with the boundaries of the counties, by reason of a

TITHE COM- Section in one of the Acts to which we shall afterwards refer.

MISSIONERS

(YSTRADGUN

MUTATION).

Against this proceeding of the Commissioners, there was a regular LAIS COM protest on behalf of the parish of Ystradgunlais; the meeting was however held for the purpose of taking evidence as to the disputed boundaries, but, upon a continued protest on behalf of the said parish, a final suspension of the proceedings took place upon the suggestion of the said Commissioners, in order that the parish might have an opportunity of applying to this Court for a prohibition, which has been accordingly done. It may be not unneces sary to observe, that no objection was made at the Bar to the writ of prohibition being applied for in this case, and it was in truth the form of proceeding suggested by the Commissioners themselves. We have thought it right to say thus much, in order to guard against the inference, that we pronounce any opinion on that point. We come now to the consideration of the question raised before us, namely, upon the construction of the Acts of Parliament. It appears from the correspondence which passed between the parties, that the question raised is, whether, under the peculiar circumstances of this case, that is, with reference to the relative boundaries of the said two parishes, the said Commissioners had any authority to proceed to the adjustment of the dispute between the said two parishes. This depends upon the construction of the sections of the statutes referred to in the argument, the 6 & 7 Will. IV. c. 71, s. 24, and the 2 & 3 Vict. c. 62. By section 24 of the former Act, it is enacted, "That if any suit shall be depending 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 to tithes, under any circumstances, in respect of any lands, or any kind of produce, or touching the situation or boundary of any land, or if any differ ence shall arise whereby the making and executing of any such agreement shall be hindered, it shall be lawful for the owners, or, if there shall be no owner actually in possession, for the persons claiming to be the owners of the lands and tithes respectively, being parties to such suit or difference, to submit the same to reference by any writing under their respective hands, containing an agree ment that such submission shall be made a rule of any of his Majesty's Courts of Record, upon such terms of reference as the parties may agree upon; and the decision of the arbitrator or arbitrators, named in the said reference, shall, for the purposes of this

In re

THE TITHE COMMISSIONERS

(YSTRADGUNLAIS COMMUTATION),

Act, be final and conclusive on all persons," with a proviso, "that
it shall be lawful for the Commissioners, if they shall think fit so
to do, but not otherwise necessary, to direct that any person in
remainder, reversion, or expectancy of an estate of inheritance in
the said lands or tithes, or any other person whom they shall deem
to be interested therein, shall be made a party to such reference."
Now on a fair interpretation of this section, and especially the
words "
boundary of any lands," we think the decision of the dis-
pute has not been properly made. The words have a sufficiently
intelligible meaning, without so extending them, but if there can be
any doubt, we consider that it would be removed by an express pro-
vision in the subsequent statutes, 7 Will. IV. & 1 Vict. c. 69, and
2 & 3 Vict. c. 62. The 34th section of the latter statute was princi-
pally relied on, as showing that the Commissioners had no authority
further to proceed to act by themselves, and showing that they had
no authority, except by consent of the land-owners. It is to this
effect: "that in case there shall be any question between any parishes
or townships, or between any two or more land-owners, touching
the boundaries of such parishes or townships, *or the lands of such
land-owners respectively, or if such parishes or townships or land-
owners shall be desirous of having such boundaries ascertained, or
a new boundary line defined, it shall be lawful for the said Com-
missioners, or any assistant Commissioner, on the application in
writing of a majority of not less than two-thirds in number and
value of the land-owners of such parishes or townships, in the case
of parochial or township boundaries, or on the like application of
such two or more land-owners in the case of boundaries between
their lands, to deal with any dispute or question concerning such
boundaries, and to ascertain, adjust, set out, and define the ancient
boundaries between such parishes or townships, or the lands of such
land-owners respectively, or draw and define a new line of boundary
as they may see fit," with a proviso, "that nothing in this provision
contained shall extend to any boundary, or part of a boundary,
being also the boundary line, or part of the boundary line, of any
county, or to the boundary line of any copyhold or customary
land, unless the consent in writing of the lord of the manor,
whereof such land is holden, to such application being dealt with
by the said Commissioners or assistant Commissioners, shall have
been first sent to him, by them, for that purpose." And it is by
the 37th section of this Act, 2 & 3 Vict. c. 62, enacted, that this
Act shall be taken to be part of the first Act, 6 & 7 Will. IV. c. 71,
53

R.R.-VOL. LXIII.

[289]

In re THE

MISSIONERS

LAIS COMMUTATION).

and of the subsequent Acts. It is obvious, therefore, that all the TITHE COM- provisions of the original and incorporated Act are to be construed (YSTRADGUN together; and that being so, and it being stated expressly that the boundaries of the two parishes before mentioned are parts of the boundaries of the counties of Brecon and Glamorgan, we are of opinion that to determine any question of the disputed boundaries in the adjoining parishes, is prohibited by the very terms of the Act itself; and we may add, that such appears to have been generally the opinion of the Commissioners themselves. We have mentioned the 7 Will. IV. & 1 Vict., which is also made part of the original Act, because by that Act power is first given to the Commissioners, under certain circumstances, to decide upon the disputed boundaries; but as all the three sections are to be considered as one section, and in the 2 & 3 Vict. a restriction as to the county boundaries is imposed, we do not deem it necessary to enter further into the provisions of the 7 Will. IV. & 1 Vict. It may be mentioned, however, that by a later Act (1), an application from two-thirds of the landholders to the Commissioners is required to set them in motion; and we do not perceive that it is stated on the face of the affidavits, that such application has been made in this instance. On the whole, therefore, we are of opinion that the rule must be made absolute for the prohibition.

Rule absolute.

1844.

April 29.

[161]

MAGISTRATES' CASES.

IN THE MATTER OF COPESTICK.

(13 L. J. M. C. 161; S. C. 1 New Sess. Ca. 38.)

Commitment-Stat. 4 Geo. IV. c. 34, s. 2-Master and servant. It is not sufficient in a commitment under the stat. 4 Geo. IV. c. 34, s. 2 (2), to state that the party committed was the servant of A. B., without showing the nature of the employment.

A HABEAS CORPUS having been obtained, directed to the keeper of the house of correction at Derby, for bringing up the body of Edwin Copestick, the following warrant of commitment was returned: "Derbyshire, to wit. To G. P., the constable and the keeper, &c. Whereas information and complaint hath been made before me, W. W. A., Esq., one of her Majesty's justices, &c., by J. D., agent of C. Granville, of Swandlincote, in the said county, upon the oath of the said J. D., against Edwin Copestick, late of Swandlincote (1) 3 & 4 Vict. c. 15, s. 28. (2) Rep. 38 & 39 Vict. c. 86, s. 17.