The Rev. Mungo Noble Thompson, Petitioner. The Right Hon. Richard Lalor Shiel, Respondent

• Jurisdiction: Ireland
• Judgment Date: 18 November 1840
• Date: 18 November 1840
• Court: Rolls Court (Ireland)

Rolls.

In the matter of the Rev. MUNGO NOBLE THOMPSON,

Petitioner.

The Right Hon. RICHARD LALOR SHIEL,

Respondent.

Phillipps on Evidence 8th ed. pp. 506, 525.

Rex v. Justices of Monmouthshire 8 Bar. & Cres. 137.

Rex v. Carlisle Bar. & Adol. 362.

Herbert v. CookENR 3 Doug. 101.

Duches of Kingston's case Smith's Leading Cases, 439.

Rex v. Gilkes 8 Barn. & Cres. 439.

Welch v. NashENR 8 East, 394.

Rex v. Inhabitants of Chilverscoton 8 Term R. 178.

Basten v. Carew 3 Bar. & Cress. 652. See Annette v. Osborne, 2 Ir. Law Rep. 317; The Queen v. Pickering, 1 Ir. Law Rep. 298.

Groenvelt v. BurwellENR 1 Ld. Raym. 466-7. See, also, Gakan, in Error, v. Maingay, Ir. T. R. by Ridgw. L. & S. p. 20.

Welch v. NashENR 8 East, 394.

Rex v. Gilkes 8 Bar. & Cres. 337.

Buchanan v. RuckerENR 9 East, 192.

Williams v. Lord BagotHRCENRENRENRENRENR 3 Barn. & Cres. 772, 5 D. & R. 719. See, aslo, 1 Stark. 525; 2 B. & Ad. 951.3 Ves. 170; 2 Russ. 208; 1 Jacob, 184; 8 Sim. 308.

Rogers v. Browne Hayes, 487.

Lessee of Coffey v. Rahilly 3 Law Rec. N. S. 193.

Pigott v. J'AnsonENR 1 Eden, 469, 471.

Attorney-General v. Lord Hotham 1 Turn. & Russ. 218-19.

Chancellor LyndhurstENR 3 Russ. 415.

Welch v. NashENR 8 East, 394.

CASES IN EQUITY. 135 In the matter of the Rev. MUNGO NOBLE THOMPSON, Petitioner. 1840. The Right Hon. RICHARD LALOR SHIEL, . . . Respondent. Rolls. And the Act of 1st & 2nd Vict. c. 109. ( In the Rolls.) Nov. 9,11,18. THE petitioner was Rector of the parish of Templetuohy, and Prebend- Under 1 & 2 V. c. 109, s. ary of Kilbragh, in the diocese of Cashel and county of Tipperary, and 32ict , upon as such such Rector and Prebendary, was entitled to the tithe rent-charge in placation by three or more lieu of composition payable in respect of the titheable lands in the said persons in any parish. It appeared that on the 3rd of April 1824, pursuant to the parish, charged with each statutes then in force, a composition for tithe had been duly established payment of 3 in this parish, and assessed and applotted upon the several titheable or upwards in respect of the lands, and amongst others, the lands of Derravilla and Long Orchard, tithe rent- charge, and the estate of the respondent. By the 1 & 2 Vict. c. 109, a rent-charge who have equal to three-fourths of the composition was established in lieu of it, given notice in the manner and by virtue of the said statute and of the previous applotment of the specified by tithe composition, the said lands of Derravilla and Long Orchard, and the act, Quar- ter Sessions the person having the first estate of inheritance or perpetual estate in may vary the rent-charge them, within the meaning of the act, became liable to pay the annual according to sum of 56. 6s. 11d., part of the said rent-charge, in half-yearly pay- the price of corn.-An or ments, and it was accordingly paid by the respondent, who was the der reducing person so liable, up to and for the 1st of November 1839. thereat-charge recited that In June 1839, the following notice* was given in the usual manner "whereas "Notice is hereby given, that it is the intention of the undersigned, "due notice " having been " who are charged with the annual payment of the sum of 3 each in "first by them ", given, three "respect of the rent-charge which has, by the statute 1 & 2 Vict. C. owners and " 109, become payable in lieu of the composition for tithes in the parish occupiers of " land in the "of Templetuohy, to make application to the Justices of the Peace at "parish of T., "the ensuing Quarter Sessions to be held at Nenagh, in and for the 84c" each charged with " county of Tipperary, on the 29th of June instant, to have the average " payment of 3 and up " price of wheat for the seven years preceding inquired of and aster- "wards in reÂÂ" tained, in order that such composition may be varied and diminished " spect of the " rent-charge "in proportion to such average, and the rent-charge payable in lieu "payable in "thereof diminished in like proportion. 9th June 1839. William lieu of the composition "Rourke Edmund Collier, Pat. Collier." When the case came on at "for tithes " made by cer tificate of, " &c., applied to the Justices of the Peace at Quarter Sessions," &c. Afterwards, the Incumbent proceeded by petition under the 30th section of the act, to recover the rent-charge which accrued from the gale day after the order of Sessions, as if no reduction had taken place ; and a rule nisi for a receiver b havim, been obtained, the respondent came in to shew cause against it, relying upon the order of the Quarter Sessions :-Held, that the recitals in the order were not evidence of the facts thereby stated ; and, as it now apÂÂpeared that one of the three persons who signed the notice, and upon whose application the order was made, was not an owner or occupier of land in the parish, nor charged with payment of any portion of the rent-charge :-Hcld, that the Quarter Sessions had not jurisdiction, and that the order was a nullity. • 1 & 2 Vict. c. 109, sec. 32, " And whereas the compositions for tithes by this act " abolished, are liable to be increased or diminished from time to time, with reference 136 CASES IN EQUITY. Sessions, the petitioner attended and objected to the application being entertained, and insisted that the Justices had not jurisdiction to entertain it, inasmuch as the notice was not signed by three perÂÂsons each charged with the annual sum of 3 in respect of the said rent-charge, as required by the act of Parliament ; and he tendered witnesses to prove that Edmund Collier, one of the subscribing parties, was not a landholder, nor charged with payment of any portion of the rent-charge, as his lease had expired, and he had given up possesÂÂsion of the premises to the landlord, J. Cooper, Esq. several weeks before the date of the notice, and was in occupation merely as a paid caretaker. This fact as to Edmund Collier now appeared by the affiÂÂdavit of Mr. Cooper, the landlord. However, the petitioner's witnesses were not examined at Sessions; and the Assistant Barrister having called for the applotment book, and having discovered that Edmund Collier was therein named as one of the tithe.composition payers to the amount of 3 and upwards for the said parish, overruled the objection to him, and thereupon, with the other Justices, made an order reducing the tithe-rent-charge, and reciting as follows :- "to the average price of corn, as advertised in the Dublin Gazette during the preceding " seven years, and it is just that the said rent-charges, which will, by virtue of this "act, become* payable in lieu of such compositions, and the amount whereof is reÂÂ" gulated thereby, should be subject to a similar variation; be it therefore enacted, that "it shall and may be lawful for any three or more persons in any parish or place, each " charged with the annual payment of 3 or upwards, in respect of any such rentÂÂ" charges, and for any party entitled to the receipt of such rent-charges, or any propor tion thereof, respectively to make application for the increase or diminution of the " composition in lieu whereof such rent-charges may be payable, at such periods from " time to time, and in such manner as if he or they were liable to the payment or entiÂÂ" tied to the receipt of such composition, he or they might respectively make such appli cation and the like notice of any such application shall be given, and all such and " the like proceedings had thereupon, as by the provisions of the said several acts for "establishing compositions for tithes in Ireland, authorised and directed in the case of "application...