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c. 71.

be allowed

VI. And be it further enacted, That, in the several cases 2 & 3 W. 4, mentioned in and provided for by this act, no presumption

Restricting shall be allowed or made in favour or support of any claim, the preupon proof of the exercise or enjoyment of the right or mat-sumption to ter claimed for any less period of time or number of years in support of than for such period or number mentioned in this act, as in provided may be applicable to the case and to the nature of the for. claim.

VII. Provided also, That the time during which any per- Proviso for son otherwise capable of resisting any claim to any of the mat- infants, &c. ters before mentioned shall have been or shall be an infant, idiot, non compos mentis, feme covert, or tenant for life, or during which any action or suit shall have been pending, and which shall have been diligently prosecuted until abated by the death of any party or parties thereto, shall be excluded in the computation of the periods hereinbefore mentioned, except only in cases where the right or claim is hereby declared to be absolute and indefeasible.

VIII. Provided always, and be it further enacted, That, What time

ment, generally speaking, is, in truth, acquired, not by any deed, but by the acquiescence, for a given period, of a person competent to interrupt the right; and this is now in substance considered equivalent to a grant, . though no grant be executed. In a declaration for disturbance of an easement, it is enough to state that the plaintiff is possessed of the tenement, and that the right is appurtenant to it. When an action is brought for any thing done in the exercise of the right, there seems to be no sufficient reason why the right must be traced to its origin, or why it should not be permitted in the plea, as well as in the declaration, to allege the defendant's possession of the tenement, and that, by reason thereof, he is entitled to the right as appurtenant. The party should not be put under greater difficulties, if he be in possession, and an action is brought against him for exercising the right, than if he

be out of possession, and he brings an
action for the obstruction. The evi-
dence is the same in both cases, and
we think the party who claims the
right, whether plaintiff or defendant,
should be allowed simply to allege
that he is entitled to it as belonging
to the tenement in respect of which
it is claimed; and to establish it pre-
sumptively by proving an adverse en-
joyment of twenty years, and conclu-
sively by an adverse enjoyment of
sixty years. Prescribing in a que
estate, that is, in right of the owner of
the fee, and those whose estate he has,
and tracing both to the possession of
the dominant tenant, from the owner
of the fee, would thus be dispensed
with, and records in actions of trespass
to try these rights materially shortened
and simplified. Where there is an
actual grant,

it
may

be rendered available, as now, in pleading and in proof.— 1st Rep. p. 52.

c. 71.

to be excluded in

2 & 3 W.4, when any land or water, upon, over, or from which any such

way or other convenient watercourse or use of water shall

have been or shall be enjoyed or derived, hath been or shall computing be held under or by virtue of any term of life, or any term the term of forty years of years exceeding three years from the granting thereof, the appointed time of the enjoyment of any such way or other matter as by this act.

herein last before mentioned, during the continuance of such term, shall be excluded in the computation of the said period of forty years, in case the claim shall within three years next after the end or sooner determination of such term be resisted by any person entitled to any reversion expectant on the determination thereof.

IX. And be it further enacted, That this act shall not tend to Scoto extend to Scotland or Ireland. land or Ire

X. And be it further enacted, That this act shall comCommence

mence and take effect on the first day of Michaelmas Term

now next ensuing. Act may be

XI. And be it farther enacted, That this act may be amended.

amended, altered, or repealed, during this present session of parliament.

Not to ex

land.

ment of act.

31

2 & 3 WILL. IV. CAP. C.

c. 100.

cimandi to

law.

An Act for shortening the Time required in Claims of Mo- 2 & 3 W. 4,

dns decimandi, or Exemption from or Discharge of Tithes.

[9th August, 1832.] WHEREAS the expense and inconvenience of suits instituted for the recovery of tithes may and ought to be prevented, by shortening the time required for the valid establishment of claims of a modus decimandi, or exemption from or discharge of tithes; Be it therefore enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal and Commons in this present parliament assembled, and by the authority of the same, That all prescriptions and claims of or for any modus What pre

scriptions decimandi, or of or to any exemption from or discharge of and claims tithes, by composition real or otherwise, shall, in cases of modus dewhere the render of tithes in kind shall be hereafter de. be valid in manded by our said lord the King, his heirs or successors, or by any Duke of Cornwall, or by any lay person, not being a corporation sole, or by any body corporate of many, whether temporal or spiritual, be sustained and be deemed good and valid in law, upon evidence shewing, in cases of claim of a modus decimandi, the payment or render of such modus, and, in cases of claim to exemption or discharge, shewing the enjoyment of the land without payment or render of tithes, money, or other matter in lieu thereof, for the full period of thirty years next before the time of such demand, unless, in the case of claim of a modus decimandi, the actual payment or render of tithes in kind, or of money or other thing differing in amount, quality, or quantity from the modus claimed, or, in case of claim to exemption or discharge, the render or payment of tithes, or of money or other matter in lieu thereof, shall be shewn to have taken place at some time prior to such thirty years, or it shall be proved that such payment or render of modus was made, or enjoy

c. 100.

2 & 3 W. 4, ment had, by some consent or agreement expressly made or

given for that purpose by deed or writing; and, if such proof in support of the claim shall be extended to the full period of sixty years next before the time of such demand, in such cases the claim shall be deemed absolute and indefeasible, unless it shall be proved that such payment or render of modus was made, or enjoyment had, by some consent or agreement expressly made or given for that purpose by deed or writing; and, where the render of tithes in kind shall be demanded by any archbishop, bishop, dean, prebendary, parson, vicar, master of hospital, or other corporation sole, whether spiritual or temporal, then every such prescription or claim shall be valid and indefeasible, upon evidence shewing such payment or render of modus made, or enjoyment had, as is hereinbefore mentioned, applicable to the nature of the claim, for and during the whole time that two persons in succession shall have held the office or bene. fice in respect whereof such render of tithes in kind shall be

claimed, and for not less than three years after the appointProviso. and institution or induction of a third person thereto: Pro

vided always, that, if the whole time of the holding of such two persons shall be less than sixty years, then it shall be necessary to shew such payment or render of modus made, or enjoyment had (as the case may be), not only during the whole of such time, but also during such further number of years, either before or after such time, or partly before and partly after, as shall with such time be sufficient to make up the full period of sixty years, and also for and during the further period of three years after the appointment and institution or induction of a third person to the same office or benefice, unless it shall be proved that such payment or render of modus was made, or enjoyment had, by some consent or agreement expressly made or given for that purpose by deed or writing. (a)

1. ENTIRE EXEMPTION OF LAND

FROM TITHES.

(a) The subjects to be considered in framing a statute of limitations for the Church, are; 1. The entire exemption of land from tithes; 2. Moduses or customary payments in lieu of tithes; 3. Compositions real; and, 4. Glebe lands.

As the law stands, non-payment of tithes for any period, however long, is no ground of exemption.

In this respect, an unjust advantage is practically enjoyed by the Church.

soever.

secure.

II. And be it further enacted, That every composition for 2 & 3 W. 4,

c. 100. tithes which hath been made or confirmed by the decree of

What comany court of equity in England, in a suit to which the ordi

positions for nary, patron, and incumbent were parties, and which hath tithes shall

be consider

ed valid. The general rule, that long usage

to the full extent, small payments are may have had a legal origin, is made, such as 1d. for a calf, 1d. for a bere neglected. The usage is pre- garden, id. for the agistment of each sumed to be wrongful, and the bur- barren cow, 1d. for the milk of a cow, then is cast upon the party in whose 1d. for a colt, 2d. per acre for hay, 6d. favour it is to support it by strict legal for farm A. in lieu of tithe hay, 3d. for evidence. This is difficult in propor

farm B. in lieu of agistment tithe, 1s. tion to the length of time the usage

for farm C. in lieu of all tithes whathas subsisted; and the title which

These moduses are supposed ought to be the safest is the most in- to have arisen from agreements of im

memorial antiquity between the tithe There is reason to apprehend that owner and the tithe payer, for their cases occur in which legal exemption mutual benefit; such agreements have cannot be made out by legal evidence, antiently been permitted by the law. particularly where the non-payment

Where these customs exist they has originated in the existence of cus- ought to be respected as much as the tomary payment in lieu of tithes so right of tithes in kind where there is small as to have been neglected and no modus, or as the right to the soil forgotten. Here justice requires that

itself. the exemption should be absolute. Yet the rules laid down by courts

Supposing that the owner who of justice on this subject render many claims the exemption is in a condition cases of modus open to question, and to prove, by strict legal evidence, that have often caused moduses which had his land antiently belonged to a reli- subsisted without question for centugious house, and may lawfully be dis- ries to be set aside. The most forcharged from the payment of tithes, midable objection to a modus is rankhe succeeds after much harassing liti

To be valid, a modus must be gation, and the costs awarded to him deemed to have subsisted from the are very insufficient indemnity for the reign of Richard I., as the period of expense he has necessarily incurred. legal memory; and, if the payment be

We see no objection to enacting, considered greater than the tithe of that, where there has been non-pay- the articles covered by the modus was ment of tithes as of right for a certain then worth, it is set aside; notwithnumber of years, and during a certain standing the uncertainty of such spenumber of incumbencies, such non- culations, and the possibility that the payment alone shall be sufficient to owner of the land, out of love to the establish the exemption.

church, or for the good of his own 2. MODUSES.

soul, may have agreed to pay annually, The attempts to set aside parochial

in lieu of tithes, a larger sum than and farm moduses cause much more

the tithes were then worth. vexation and general mischief. Where

Many questions of great nicety as such moduses exist, the land is sup

to the certainty of the custom, and of posed to be subject to tithes; but, in

the lands which it covers, have the stead of their being paid in kind, and

same tendency to bring the matter. D

ness.

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