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C. 100.

2 & 3 W.4, not since been set aside, abandoned, or departed from, shalı

be, and the same is hereby confirmed and made valid in law; and that no modus, exemption, or discharge shall be deemed to be within the provisions of this aet, unless such modus, exemption, or discharge shall be proved to have ex

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period of actual enjoyment may be safely assumed as the criterion of the rights of the clergy and the laity.

3. COMPOSITIONS BILL. This remedy would apply equally to the third case, that of real composition. This differs from modus principally in the time of its con

commencement. It is an agreement for a commutation of tithes that might have been made with the consent of the incumbent, patron, and ordinary, at any time prior to the 13th Elizabeth. It is not liable to the objection of rank

ness.

By the rựle, however, now established, a composition real is not to be presumed from any length of usage consistent with it, but it must be established by proof or positive evidence of the existence at some time, of a deed which must at least be as old as the 13th Eliz., and may be several centuries older.

This doctrine, no less than that which requires positive proof of the ground of exemption from payment of tithes, militates against the general maxim of the law, that what has long existed shall, in favour of peaceable enjoyment, be presumed to have had a legal origin. We believe that the rule which requires positive evidence of a deed to establish a composition real, operates, in many cases, against the truth of the transaction.

into doubt, and to encourage litigation.

The first effect of a suit to set aside a modus, is, to involve the incumbent in bitter hostility with his parishioners. The expense to both parties often exceeds the value of the subject in dispute; but it falls most heavily on the clergyman, because his opponents are frequently numerous, and aid each other. Whenever the incumbent succeeds in setting aside a long established modus, there is a strong feeling that injustice is done; for, he accepted the living when the modus prevailed, and the advowson and all the lands in the parish have been probably repeatedly sold on the basis of the modus; so that, when it is set aside, one party loses what he had bought and had long enjoyed, and another gets what he had not bought and never expected to enjoy.

A modus was recently set aside which had certainly subsisted ever since the reign of Edward II., by the discovery of a document which shewed that it originated in that reign. Other cases, almost equally strong, have been recently decided in the

way. (Lord Kensington v. Pugh, 1 Younge, 125; Lediard v. Anstie, 3 Younge & Jervis, 548: Short v. Lee, 2 Jac. & Walk. 464; Norton v. Hammond, 1 Younge & Jervis, 94; Fisher v. Lord Graves, 1 M'Cleland & Younge, 362; Dennison v. Elsley, 1 M'Cleland and Younge, 1; Ross v. Aylesbury, not yet reported; Lambert v. Fisher, Kirkby's Rental Case, before V.C., M. T. 1830).

We think, that, with respect to moduses and exemptions, a reasonable

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isted and been acted upon at the time of, or within one year 2 & 3 W. 4, next before the passing of this act.

III. Provided always, That this act shall not be prejudi. The act not eial or available to or for any plaintiff or defendant in any

any suit now suit or action, relative to any of the matters before mention- commence:1, ed, now commenced, or which may be hereafter commenced, during the present session of parliament, or within one year from the end thereof.

IV. Provided also, and be it further enacted, That this to what act shall not extend or be applicable to any case where the cases this act tithes of any lands, tenements, or hereditaments shall have tend. been demised by deed for any term of life or number of years, or where any composition for tithes shall have been made by deed or writing, by the person or body corporate entitled to such tithes, with the owner or occupier of the land, for any such term or number of years, and such demise or composition shall be subsisting at the time of the passing of this act, and where any action or suit shall be instituted for the recovery or enforcing the payment of tithes in kind within three years next after the expiration, surrender, or other determination of such demise or composition.

V: Provided also, and be it further enacted, That, where Time durany lands or tenements shall have been or shall be held ing which occupied by any rector, vicar, or other person entitled to be held by the tithes thereof, or by any lessee of any such rector, vicar, titled to the or other person, or by any person compounding for tithes tithes therewith any such rector, vicar, or other person, or by any te-cluded in nant of any such rector, vicar, or other person, or of any such lessee or compounder, whereby the right to the tithes this act; of such lands or tenements may have been or may be during any time in the occupier thereof, or in the person entitled to the rent thereof, the whole of every such time and times shall be excluded in the computation of the several periods of time hereinbefore mentioned. VI. Provided also, That the time during which any per. as also the

time during son otherwise capable of resisting any claim to any of the matters before mentioned, shall have been or shall be an in-person capa

ble of resistfant, idiot, non compos mentis, feme covert, or lay tenant for life, or during which any action or suit shall have been pend-claim shall

or

lands shall

of to be ex

the computation under

which any

ing any

c. 100.

&c.

What it shall be suf

2 & 3 W. 4, ing, and which shall have been diligently prosecuted, until

abated by the death of any party or parties thereto, shall be be an infant,

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.

VII. And be it further enacted, That, in all actions and ficient to al suits to be commenced after this act shall take effect, it shall lege in ac- be sufficient to allege that the modus, or exemption, or dismenced un-charge claimed, was actually exercised and enjoyed for such der this act. of the periods mentioned in this act as may be applicable to

the case; and, if the other party shall intend to rely on any proviso, exception, incapacity, disability, contract, agreement, deed, or writing herein mentioned, or any other matter of fact or of law not inconsistent with the simple fact of the exercise and enjoyment of the matter claimed, the same shall be specially alleged and set forth in answer to the allegation of the party claiming, and shall not be received in evidence on any general traverse or denial of the matter claimed.

VIII. And be it further enacted, That, in the several sumption al

cases mentioned in and provided for by this act, no presupport of sumption shall be allowed or made in favour or support of for any less any claim, upon proof of the exercise or enjoyment of the period than right or matter claimed for any less period of time or numin this act. ber of years than for such period or number mentioned in

this act as may be applicable to the case and to the nature of the claim.

IX. Provided also, and be it further enacted, That this tend to England only.

act shall not extend to Scotland or Ireland.

No pre

lowed in

Act to ex

37

3 & 4 WILL. IV. CAP. LXXIV.

c. 74.

An Act for the Abolition of Fines and Recoveries, and for 3 & 4 W. 4, the Substitution of more simple Modes of Assurance (a).

[28th August, 1833.] Be it 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, in the construc- Meaning of tion of this act, the word “lands” shall extend to manors, words and advowsons, rectories, messuages, lands, tenements, tithes, expressions. rents, and hereditaments of any tenure (except copy of court-roll), and whether corporeal or incorporeal, and any undivided share thereof, but, when accompanied by some expression including or denoting the tenure by copy of court-roll, shall extend to manors, messuages, lands, tenements, and hereditaments of that tenure, and any undivided share thereof; and the word “ estate” shall extend to an “ Estate.” estate in equity as well as at law, and shall also extend to any interest, charge, lien, or incumbrance in, upon, or affecting lands, either at law or in equity, and shall also extend to any interest, charge, lien or incumbrance in, upon, or affecting money subject to be invested in the purchase of lands; and the expression “ base fee” shall mean exclusively “ Base fee." that estate in fee simple into which an estate tail is converted where the issue in tail are barred, but persons claiming estates by way of remainder or otherwise are not barred; and the expression “ estate tail,” in addition to its usual“ Estate meaning, shall mean a base fee into which an estate tail shall have been converted; and the expression “ actual

certain

- Lands."

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tail."

(a) The ordinary objects and effects of fines and recoveries are so well understood, or so readily ascertained by a reference to the treatises on conveyancing, that it would be idle to recur to them here. It will be sufficient to observe, that, of the objects effected by

fines and recoveries, two only are
provided for by this statute, namely,
the başring of entails and the passing
and extinguishing of the estates,
rights, and interests, of married wo-

men.

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c. 74.

• Actual

tenant in tail."

Tenant in pression

tail."

8 & 4 W. 4, tenant in tail" shall mean exclusively the tenant of an estate

tail which shall not have been barred, and such tenant shall
be deemed an actual tenant in tail, although the estate tail
may have been divested or turned to a right; and the ex-

tenant in tail” shall mean, not only an actual
tenant in tail, but also a person who, where an estate tail
shall have been barred and converted into a base fee, would

have been tenant of such estate tail if the same had not “ Tenant in been barred; and the expression “tenant in tail entitled to tail entitled a base fee,” shall mean a person entitled to a base fee, or to to a base fee."

the ultimate beneficial interest in a base fee, and who, if the

base fee had not been created, would have been aetual “ Money." tenant in tail; and the expression “money subject to be

invested in the purchase of lands" shall include money,
whether raised or to be raised, and whether the amount
thereof be or be not ascertained, and shall extend to stocks
and funds, and real and other securities, the produce of
which is directed to be invested in the purchase of lands,
and the lands to be purchased with such money or produce
shall extend to lands held by copy of court-roll, and also to
lands of any tenure in Ireland or elsewhere out of England,
where such lands or any of them are within the scope or

meaning of the trust or power directing or authorizing the “ Person.” purchase; and the word "person" shall extend to a body

politic, corporate, or collegiate, as well as an individual; Number and and every word importing the singular number only shall gender.

extend and be applied to several persons or things, as well
as one person or thing; and every word importing the plural
number shall extend and be applied to one person or thing,
as well as several persons or things; and every word import-

ing the masculine gender only shall extend and be applied Settlements to a female as well as a male; and every assurance already

made or hereafter to be made, whether by deed, will, pri-
vate act of parliament, or otherwise, by which lands are or
shall be entailed, or agreed or directed to be entailed, shall
be deemed a settlement; and every appointment made in
exercise of any power contained in any settlement, or of any
other power arising out of the power contained in any set-
tlement, shall be considered as part of such settlement, and
the estate created by such appointment shall be considered

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