The Sun.
London, England, 1841-05-25 00:00:00

COURT OF EXCHEQUER, May 24.

IN THE MATTER OF THE REV. BENJAMIN BARKER, CLERK.
In this ease the ATTORNEY. GENERAL appeared to show
cause, on the part of the Tithe Commissioners, against a rule
served upon them, but he said it might save time to hear Coun-
sel, who appeared on the part of the Rev. Mr. Rich.
Mr. KELLY said this was a rule served upon the Tithe Com-
missioners, calling upon them to show cause why a writ of
prohibition should not issue to prevent them from finding any
modus relating to Shiptown Park, in Norfolk, which was rented
from Eton College by the Rev. Mr. Rich. Some time ago
the Commissioners came into the parish in which the property
is situated, under the compulsory powers of their Act, to value
the Tithe. His client set up a modus of 6s. Bd., but it ap-
peared that nothing had been paid for a long period. He had
much difficulty in attempting to make out the modus, because
the daughters of a deceased rector, named Bullock, through a
fear of giving some undue advantage to either party, refused
to allow any inspection of the papers of their father relating to
the affairs of the parish. The attempt to set up the modus
failed, and the Assistant Commissioner found the value of the
Tithes at between 3001. and 400/. This decision was appealed
from, and an issue was bier!, but it also failed. The
Commissioners had not made their award when, on
the first of January, the Alisses Bullock at last con-
sented to allow an inspection of the documents, provided it
were made in the presence of all the parties, or their solicitors,
and they turned out to be most important ; for it was clear, that
though they would not make out a modus of Os. Bd., thy
clearly proved one of 6s. After some delay, the Tithe Corn-
missioners consented to entertain the question of the Os. modus
upon condition that Eton College should agree to it, and con-
sent to he bound by their award ; and, further, that if the modus
were set up, the Rector should be paid all his costs as between
attorney aid client. These were very hard terms, and might
have been impracticable, but Mr. Rich agreed to them. Now
the Commissioners had still to ascertain the value of the tithe,
and to make their award, and he contended they were not pre-
cluded from entertaining the question of the Os. modus, be-
cause the Assistant Commissioner had found there was not one
for 6s. Bd., even although he went on, and alleged that the
Rector was entitled to the tithe. These words were mere
surplusage. He had no right to find so much, and the Commis-
sioners not having ascertained the value of the tithes, or made their
award, had power, under several sections of their Act, to re-
hear and adjudicate upon the question. The Commissioners
were hound to make an award. A mistake had been made,
and if it were the intention of the Legislature, in framing the
Act of Parliament, to make such a mistake irrevocable, then
he would contend that, in the present instance at least, a great
injustice would be committed. He contended that the Com-
missioners were bound to do all that was necessary, to enable
them to ascertain the rights of all parties concerned. He sub-
mitted, therefore, that the rule must be discharged.
Mr. BY LES having been heard on the same side,

Mr. Baron PARKE said that the Court considered the ques-
tion as one of so much importance, that their Lordships would
not wish their decision to be final ; their desire wa., that it
should be reviewed before a Court of Error.

It was ultimately arranged that the rule should be enlarged,
and that measures should immediately be adopted for putting
the cause into such a shape as to secure the hearing of it be-
fore a Court of Error, without delay.

BAIL COURT, May 24.
(Before Mr. Justice WIGHTMAN.)
The Court having disposed of some motions of course, sat at
Nisi Prius and tri9d several Common Jury cafes, of no interest
except to the parties concerned.

COURT HOUSE, WELLCLOSE-
SQUARE.

(Before W. BAKER, Esq., Coroner, and a Special Jury.)

NICHOLLS V. THE BLACKWALL RAILWAY COMPANY.

This was an inquiry to assess the amount of compen-
sation to be paid by the Company to the complainant,
who carried on an extensive business as a butcher, in
White Lion-street, Whitechapel, over which street the
railway passed.
Sir F. Pollock and Mr. James were for the claimant;
Sir W. Follett and Mr. Alexander for the Company.
Sir F. POLLOCK, in stating the case for the Jury, said
that this claim arose under the 51st section of the Act of
Parliament by which the Railway Company was incor-
porated, and which gave a right to all persons who were
possessed of houses or shops situate within 50 feet of the
line of railway, to claim of the Company to purchase
such houses and shops, provided a jury should find
that such property had been deteriorated by the con-
struction of the railway ; and further, that if the Jury
found in the affirmative, then that the Company were
compelled to purchase such property so deteriorated, at
an amount to be assessed by the Jury. The claimant,
up to the time of the construction of the railway, had
carried on his business of a butcher; since that period, the
street had bean rendered impassable, and his trade,
which consisted chiefly in retail custom, had become ma-
terially diminished. The Learned Counsel went on to
state that the value of the house, independent of the
trade to which it was adapted, was also deteriorated by
the proximity of the railway, and that the noise proceed-
ing from the carriages traversing the line would detract
from its value if exposed for sale, and render the
house unfit for a residence. The claimant was possessor
of an unexpired term of three years, under a lease
granted in 1829, and for this he claimed a sum of •601.
For the loss of good-will in his trade he claimed a fur-
ther sum of 4001., and for improvements and alterations
in his premises, 3001.

It appeared, from tha evidence of two surveyors
and many of the inhabitants of the neighbourhood,
that until very recently, when an alteration has taken
place by substituting wooden wheels for iron, and by
which the rope which draws the carriages is worked,
the noise was very great, and, as stated by the witnesses,
annoyed them very seriously in the occupation of their
houses, and many of them stated their opinion to be,
that the business and good-will of the claimant's trade
has been rendered almost valueless by the construction
of the railway.
Sir WM. FOLLETT addressed the Jury on behalf of
the Company, and urged that this was a case of very
great importance, for that if the present claimant was
entitled to compensation upon the principle of his house
and shop being deteriorated, the Company would be de-
luged by Claims from persons possessed of property within
the line, which they would be utterly incapable of resist-
ing. The Learned Counsel commented on the different
heads of claim, and contended that the claimant was not
entitled to any thing in respect of diminution of busi-
ness, and his claim in other respects was wholly
extravagant and absurd.
The CORONER, to whom the precept was di-
rected, (in consequence of one of the Sheriffs being in-
terested as a shareholder) summed up the evidence very
minutely, and the Jury having retired for about three
hours, returned a verdict—" That the property was de-
teriorated by the construction of the railway, and assessed
the value of the premises, the loss of good-will, and the
amount of fixtures and improvements, a t the sum of 250/

CROYDON PETTY SESSIONS. •
A young man dressed in black, and of genteel appear-
ance, but who was evidently of unsound mind, was
brought up by Sergeant Chambers, of the P division,
under the following circumstances :—The officer stated
that having received information that an insane gentle-
man had been wandering about the neighbourhood of
Banstead, he proceeded to search for the individual, and
he found the defendant near the Cock at Sutton, parad-
ing backwards and forwards, and appaxeutly very much
exhausted. He went up to him, and the defendant
begged that he would not hurt him ; and upon his mak-
ing some inquiries of him, he said that he had been upon
the Downq all night, and that he was upon a pilgrimage,
:AO had been fighting with the enemy, Seeing the state
of the prisoner's mind he was induced to take him to his
station, *And 01014 searching him he found a Bible in the
beast of his coat.
In answers to questions from the Bench the defendant
said that his name was Alfred Kelly, and that ha was
the son of John Kelly the auctioneer. Ile also said that
he had left his friends on the preceding day, and that
they did not know whew 10 was
gone to.
The Counz ir was evident that the unfortunate
3,7.0\1%, )44a mind was affected, and they directed the
ottlaer to take care of him, and make the necessary
iuquiries, with a view to his being restored to his friends.