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uses the language of the provision in the fifth section; 1812. and then it recites, “ And whereas the said provision
CAMBRIDGE has not proved effectual, but the same hath been eluded
against by the entry of the title to a single volume, or of some
BRYER. part of such book or books so printed and published, or re-printed and published;" and then it goes on to enact, that no person shall be subject to the penalties inflicted by the statute of Anne, which are the penalties of the first section of that act, “for printing or re-printing, importing or exposing to sale, any book or books, without the consent mentioned in the said act, unless the title to the copy of the whole of such book, and every volume be entered in the manner directed by the said act, and unless nine such copies shall be delivered to the warehouse-keeper for the use of the Universities, &c.;' therefore, in order to prevent that elusion or evasion by entering only the title of a single volume, where perhaps the work might consist of a great number of volumes, the legislature make it necessary that the title of all the volumes should be entered with the clerk of the Company, and that which was not a condition precedent before, namely, the delivery of the nine copies to the Universities, they now make a condition precedent to the party's suing for the penalties under the first section. Now, how can it be said that this right of the Universities can be rendered not so effectual, or eluded by the entry of the title of a single volume in the books of the Stationers' Company? That entry is originally directed by the statute of Anne to be made for the purpose of giving notice, that there may be a place whither every person may resort and see every thing which is published, lest through ignorance they should be led into penalties. The clause however giving the
nine copies to the different libraries is only guarded by a penalty to be recovered and sued for within three months after the offence committed, and therefore that would be ineffectual, if the Universities or the owners of the libraries could be kept in the dark, three months, as to the books published; and if this register, which is the public notice, contains only the title of a single volume, and that is the place they are to have resort to, the three months may elapse before they have notice of any more than a single volume being published, and then their whole remedy would be at an end, as it respected the right vested in them by the 8 Anne; but to prevent this, the 15 Geo. 3. provides, that the title to the copy of the whole shall be entered in the register-book. It seems to me, therefore, that the words of the recital of the 6th clause in the 15 Geo. 3. are perfectly consistent with the construction of this act, though they may appear at first sight to have a different effect; for as the right to protect the privileges of the libraries could be exercised only within three months after the publication of the book, it was an elusion of and rendering ineffectual that provision in their favour, if a false account were given of the number of volumes. The next act is the 41st Geo. 3. c. 107. ; and it appears at the passing of that act, that the construction of the statute of Anne was misunderstood ; for at that time it is recited as if the entry of the book at the Company's hall was a condition precedent; it is provided at least, that, in future, copies shall be delivered to the University and the other body in Ireland, in the same manner as before they had been delivered to the Universities in England and Scotland ; and in future it makes it a condition precedent to the delivery of those copies, that they shall
have been entered. This act certainly proceeds upon a misunderstanding, and a misconstruction, in my opinion, of the statute of Anne; for it must certainly have been the intention of the legislature, to put these learned bodies of Ireland on the same footing as those of England and Scotland were before placed by the statute of Anne; but as the construction of the statute of Anne appears to be clear, I am of opinion that we ought to abide by it, without being controlled by that misconstruction of it, which in latter times seems to have prevailed. I admit the force of the observations; but here it is to be remembered that this is not a positive interpretation of a former act imposed by the legislature in a subsequent act, but only by the provisions which the legislature have made they seem to have apprehended that such was the construction of the statute of Anne. But if the Court is clear that the construction is otherwise, that cannot bind us in the construction we are to put upon it; and it appears to me, that notwithstanding the title of the book has not been entered with the Clerk of the Stationers' Company, yet inasmuch as the author of this book is, according to the decision of this Court in Beckford v. Hood, entitled to all the privileges granted by the statute of Anne, and secured by a much more effectual remedy than the penalties which are given by the first section of the act, namely, by action to recover damages against any person who shall infringe his right, this privilege to the different libraries is also given by the fifth section of this act, notwithstanding there may not have been any such entry as is required by the second section; which is for a totally different purpose than that of securing the right to the Universities; therefore it appears to me, upon
these grounds, that the postea ought to be delivered to the plaintiffs.
BAYLEY, J. I am entirely of the same opinion; but as my Lord, and my Brother Le Blanc, have gone so fully into the subject, I shall not enter into it.
Postea to the Plaintiffs.
Upon the application of Brougham, the Court allowed the case to be turned into a special verdict.
Saturday, Nov. 21st.
The Countess Dowager of DARTMOUTH and Others,
Executrix and Executors of GEORGE Earl of
In an action on NHIS was an action of debt upon the stat. 2 & 3 Ed. 2 & 3 Ed. 6. by the plaintiff, as 6. c. 13., for not setting out tithes, in which the deowner of tithehay, against the
claration stated that George Earl of Dartmouth, the testadefendant, as tor, on the 1st of July 1810 until the 3d of October 1811, occupier of a close, for not was owner and proprietor of the tithes of hay arising setting out the tithe, copies of a from a parcel of land called the Four-days-work-close, in bill and answer the parish of Batley, in the county of York, of which vicar for tithe- parcel of land the defendant was, during all that time, hay against S. L., then oc the occupier; that the tithes of hay growing on the said cupier of the close, and from land within 40 years next before the statute were of whom defend. right yielded and payable and yielded and paid to the ant purchased, denying the owner, proprietor, or farmer of those tithes for the time vicar's right, and setting up being; that the defendant, on the 1st of August 1810, a right in the ancestor of plaintiff, on which the vicar abandoned the suit, were holden evidence against the defendant.
In favour of uninterrupted enjoyment by the perception of tithe-hay by plaintiff and his ancestors, although an endowment of the vicarage in 1253 with the said tithe be shewn, it shall be presumed that the tithe came into lay-hands before the restraining statutes.
mowed the grass growing on the said land, and made it 1812. into hay, the tithes of which hay belonged to the said
Lady George Earl of Dartmouth, as owner and proprietor of DartmouTH
against the same, and ought to have been set out and paid to him: yet the defendant took and carried away all the said hay, without setting out the tenth part, &c.
At the trial before Thomson, B., at York, the plaintiffs made title to the tithes in question under the Marquis of Halifax, to whom the same had been conveyed by an indenture of the 21st of October 1676, and they produced copies of a bill and answer in a certain cause after mentioned; and also gave parol evidence of the receipt of the tithes, or payments in lieu thereof, as far back as living memory could trace. The defendant
gave counter evidence of title, the tendency of which was to shew that the right to the tithes was in the vicar of Batley, under an endowment of the vicarage with the tithes of hay of the whole parish, in 1253, by Walter Gray, Archbishop of York, in the 37th year of his pontificate; and that the same appeared to have remained annexed to the vicarage after the dissolution of the monastery of St. Oswald de Rostell by an ecclesiastical survey in the 26 H. 8. (1535), and by ministers' accounts in the 33 & 34 H. 8. The parish of Batley consisted of three townships, Batley, Morley, and Churwell; and there were three terriers proved by the defendant of the dates of 1727, 1743, and 1748, each intitled, “A true and perfect terrier of glebe and other possessions belonging to the church of Batley, &c.” mentioning “The great tithes of Scolecroft in the township of Morley,” and also “Fineden composition-money for tithe-hay.” But there was no evidence of the vicar having ever in fact taken the tithe of hay, or any composition for it. It was answered