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Baylis V. Bishop Of London Notes

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BAYLIS V. BISHOP

OF

LONDON

FACTS An apportioned tithe rent-charge was payable to the rector of Greenford in respect of each property. The testator occupied both properties and for some years prior to his death paid the tithe rentcharge in respect of them in one sum on one demand note for one sum (being the aggregate amount of the tithe rent-charge for both properties) delivered to him from time to time by a firm of Davis &
Davis, the collectors for the rector. After the testator's death similar demand notes for the tithe rent-charge in one sum headed in like manner were from time to time sent in by Davis & Davis to the trustees of the testator's will, who continued to pay the same until October, 1910, in forgetfulness of the fact that the lease had determined in 1895, and under the impression that the whole of the tithe rent-charge demanded was payable in respect of the testator's freeholds. In the meantime, in 1895, the rector of Greenford was adjudicated a bankrupt, and on June 17, 1897, the then Bishop of London, on the application of the trustee in bankruptcy under s. 52 of the Bankruptcy Act, 1883, made a sequestration order whereby, after reciting the proceedings in the bankruptcy, he appointed his secretary sequestrator of the benefice and directed him to collect and receive the tithes and emoluments of the benefice and to account to him (the bishop) for the same. Under this order the sequestrator employed Davis & Davis, as his local agents, to collect the tithes and emoluments of the benefice for the purposes of the sequestration, and, after paying thereout the stipend of the curate and other outgoings as directed by the bishop, paid over the balance to the trustee in bankruptcy. The mistake as to the leaseholds was first discovered in October, 1910, and thereupon the plaintiffs, who had been appointed trustees of the testator's wills in 1906, applied to the bishop, as the person responsible for the execution of the writ of sequestration, to repay to them six years of the tithe rent-charge so by mistake demanded by and paid to the sequestrator through Davis & Davis in respect of the leaseholds, but the bishop declined to repay the same. Thereupon the plaintiffs *129 issued the writ in this action and claimed repayment of the sum of 197l. 6s. 11d. as moneys had and received by the bishop for their use, being moneys demanded from and paid by the trustees since the year 1904 under a mistake of fact. HOLDING COZENS HARDY MR

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