c. 71. Restricting 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 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 may be applicable to the case and to the nature of the for. claim. be allowed claims here in provided infants, &c. VII. Provided also, That the time during which any per- Proviso for son otherwise capable of resisting any claim to any of the matters 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 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 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 the term of by this act. Not to ex 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 Scot- extend to Scotland or Ireland. land or Ire land. Commencement of act. Act may be amended. X. And be it further enacted, That this act shall commence and take effect on the first day of Michaelmas Term now next ensuing. XI. And be it farther enacted, That this act may be amended, altered, or repealed, during this present session of parliament. 31 2 & 3 WILL. IV. CAP. C. c. 100. 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.] cimandi to law. 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 prescriptions 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 benefice in respect whereof such render of tithes in kind shall be claimed, and for not less than three years after the appointand institution or induction of a third person thereto: Provided 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) Proviso. (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. 1. ENTIRE EXEMPTION OF LAND FROM TITHES. 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. c. 100. What com II. And be it further enacted, That every composition for 2 & 3 W. 4, tithes which hath been made or confirmed by the decree of any 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 The general rule, that long usage may have had a legal origin, is here neglected. The usage is presumed to be wrongful, and the burthen is cast upon the party in whose favour it is to support it by strict legal evidence. This is difficult in proportion to the length of time the usage has subsisted; and the title which ought to be the safest is the most in secure. There is reason to apprehend that cases occur in which legal exemption cannot be made out by legal evidence, particularly where the non-payment has originated in the existence of customary payment in lieu of tithes so small as to have been neglected and forgotten. Here justice requires that the exemption should be absolute. Supposing that the owner who claims the exemption is in a condition to prove, by strict legal evidence, that his land antiently belonged to a religious house, and may lawfully be discharged from the payment of tithes, he succeeds after much harassing litigation, and the costs awarded to him are very insufficient indemnity for the expense he has necessarily incurred. We see no objection to enacting, that, where there has been non-payment of tithes as of right for a certain number of years, and during a certain number of incumbencies, such nonpayment alone shall be sufficient to establish the exemption. 2. MODUSES. The attempts to set aside parochial and farm moduses cause much more vexation and general mischief. Where such moduses exist, the land is supposed to be subject to tithes; but, instead of their being paid in kind, and D to the full extent, small payments are made, such as 1d. for a calf, 1d. for a garden, 1d. for the agistment of each barren cow, 1d. for the milk of a cow, 1d. for a colt, 2d. per acre for hay, 6d. for farm A. in lieu of tithe hay, 3d. for farm B. in lieu of agistment tithe, 1s. for farm C. in lieu of all tithes whatsoever. These moduses are supposed to have arisen from agreements of immemorial antiquity between the tithe owner and the tithe payer, for their mutual benefit; such agreements have antiently been permitted by the law. Where these customs exist they ought to be respected as much as the right of tithes in kind where there is no modus, or as the right to the soil itself. Yet the rules laid down by courts of justice on this subject render many cases of modus open to question, and have often caused moduses which had subsisted without question for centuries to be set aside. The most formidable objection to a modus is rankness. To be valid, a modus must be deemed to have subsisted from the reign of Richard I., as the period of legal memory; and, if the payment be considered greater than the tithe of the articles covered by the modus was then worth, it is set aside; notwithstanding the uncertainty of such speculations, and the possibility that the owner of the land, out of love to the church, or for the good of his own soul, may have agreed to pay annually, in lieu of tithes, a larger sum than the tithes were then worth. Many questions of great nicety as to the certainty of the custom, and of the lands which it covers, have the same tendency to bring the matter. be considered valid. |