Jurisdiction of ecclesiastical to. the subtraction of tithes, the 3 & 4 Will. 4, c. 27, to recovering "the possession or seisin of them." The Ecclesiastical Courts have not only the power of courts in deter- holding plea for the subtraction and withholding of mining right tithes as a personal duty in all cases, but they have in some cases the power of determining the right to tithes. Thus where the right to tithes is in dispute between two ecclesiastical persons in their ecclesiastical characters, or, as it seems, between a lay impropriator and an ecclesiastical incumbent claiming tithes as a mere ecclesiastical right, the question is properly triable in the spiritual courts and the courts of common law will not interfere (r). Hence the section 43 of the 3 & 4 Will. 4, c. 27, that in a suit to recover tithes in the spiritual court, the same period of limitation should apply as in suits for that purpose at law or in equity (s). For the recovery of tithes as a chattel, the person had his remedy both in courts of equitable jurisdiction and those of ecclesiastical jurisdiction, and therefore the object of the legislature would seem to be to assimilate the periods for the recovery of them in both jurisdictions. Sect. 43 of c. 27. Operation of that section. It is very difficult to say how this clause was intended to operate. It has been insisted (t), that it proves clearly that in it the legislature was dealing with tithes as a chattel, even though it may be admitted that in the previous sections it was dealing with tithes as an inheritance. But there is this difference between the 24th and the 43rd sections, namely, when in the 24th section the legislature is speaking of a remedy in equity being only co-extensive with the right at law, it is speaking of the right to recover "by virtue of the provisions hereinbefore contained;" when, however, it is speaking in the 43rd clause, in which it is intended to bind the (r) 2 Eagle on Tithes, 295. See cases on this point in Vin. Ab. tit. Prohibition Z., 8vo. ed., vol. 18. (s) 10 Ir. Eq. Rep. 419. (t) See Dean of Ely v. Bliss, 2 De Gex, M. & G. 459. proceedings in spiritual courts, no reference is made to "the provisions hereinbefore contained," but it appears to be a general provision, dealing generally with all rights of action or suit, and merely meant to prevent proceedings in the spiritual courts to recover tithes or moduses, by persons who could not within the same time have recovered at law or in equity, leaving it entirely open under what provisions or what acts of parliament that remedy might be enforced (u). not within. Comprehensive as the term land, as used in this Term "land" statute, is, however, some subjects of property are not in c. 27, what embraced by this statute. Thus, neither turnpike tolls (a) nor canal rates alone are land either in the usual and proper meaning of that term independently of this statute, or in the extended meaning given by this statute to that term (y). Amongst other kinds of incorporeal property, rent Rent. properly so called, and also, under that term, where the nature of the provision or the context of the statute does not exclude the signification, other kinds of such property of an analogous nature, as annuities and periodical sums of money charged upon or payable out of any land, except moduses or compositions belonging to a spiritual or eleemosynary corporation sole, are embraced by the 3 & 4 Will. 4, c. 27. The term rent, in its ordinary signification, includes What it innot only all pecuniary rents, but also all rents consisting of profit which lies in render, office, attendance, and such like (z). cludes. As in the case of tithes, but to a greater extent, the Is ambiguous. term rent, as used in this statute in its ordinary and proper sense, is necessarily ambiguous. It is used sometimes in the sense of a rent charged on lands (a), some (u) Per Lord St. Leonards, 2 De Gex, M. & G. 475. 22. (x) Mellish v. Brooks, 3 Beav. (y) Hodges v. The Croydon Canal Co., Ib. 86. (z) Co. Litt. 142 a, 162 b. Rents within c. 27. Out of incorporeal hereditaments. times in the sense of a rent reserved under a lease (c), and sometimes, in some sections, in both senses (d). In the section 15 the term interest, which is in the parliamentary roll, is used by mistake for the term rent. But the nature of the provision in which this term rent is found, or the context, will generally remove the ambiguity (e), and restricts, when required, the extended signification, secundùm subjectam materiam. The rents to which the statute, looking to its title, seems to be most pertinent, are those which are a charge on land, and for which an assize would lie (ƒ), as an annuity for life (g), ancient quit rents (h), ancient rent service, fee farm rents (¿), or the like, existing as an inheritance distinct from the land, and for which before the statute the party entitled might have had that remedy (k), and either where there are two persons, each of whom claim an estate in them adverse to the other (1), or where the owner of the land claims to hold it free from such charge (m). Although there may be no absolute absurdity in supposing that a person seised in fee, or for life, of a rentcharge might for a gross sum of money demise it for years or at will, at a smaller rent (n); yet at common law, except in the case of the king (o), rent cannot (h) Owen v. De Beauvoir, supra. (i) 1 Inst. 143 b, n. 5; 2 Ib. 44; Doug. 627, n. (k) Grant v. Ellis, supra; Owen v. De Beauvoir, supra; 2 De Gex, M. & G. 472. See also Dean of Ely v. Cash, 15 Mee. & W. 617. (1) Dean of Ely v. Cash, supra; Re Turner's Estate, 11 Ir. Eq. Rep., N. S. 304. (m) James v. Salter, supra ; Oren v. De Beauvoir, supra. (n) 9 Q. B., N. S. 356. (o) Lord Mountjoy's case, 5 Rep. 3. be granted or reserved out of incorporeal hereditaments (p), or mere rights, or personal chattels (q), because the remedy for the recovery could not be either by distress or by assize(r). But such a reservation is good to bind the lessee by way of contract, and for which the lessor may maintain an action of debt (s). Since the 3 & 4 Will. 4, c. 27, however, an annual sum charged upon tithes is a rent within this statute, for the term rent, as there used, includes all annuities and periodical sums of money charged upon or payable out of any land, except moduses or compositions belonging to spiritual or eleemosynary corporations sole, and the term land includes tithes other than those belonging to such corporations. A sum in gross charged upon or payable out of land Gross sums or other corporeal hereditaments within that term, instalments. payable by under sect. 1 of c. 27, by instalments, is a periodical sum of money within the term rent under that section (t). But charged upon or payable out of any rent is neither land nor rent within this statute. within c. 27. Not even all rents proper, however, are within the What rents term rent in the extended signification given to it in proper not this statute. Thus conventional rents, or rents reserved on a common demise of property, are not within the statute under the term rent used in its most extensive signification (u); and rent payable for land, although not incident to any reversion therein, but to which there is a mere possibility of reverter, is such a rent (x), although in point of law a rent-charge, but not within the section 2. So rents so reserved in the nature of penal rents for breaking up pasture land, or pursuing a (p) Co. Litt. 47 a, 142 a, 144 a; Dalston v. Reeve, Lord Raym. 77. (4) Spencer's case, 5 Rep. 17. (r) Gilb. on Rents; Bro. Abr. Assize, pl. 2; Co. Litt. 47 a, 142 a, 144 a. (s) Windsor v. Gover, 2 Saund. 302. (t) Uppington v. Tarrant, 12 Ir. Ch. Rep. 262. (u) Grant v. Ellis, 9 Mee. & W. 113; Re Turner's Estate, 11 Ir. Eq. 304; 2 De G., M. & G. 472, 473. (x) Re Turner's Estate, supra. Rents payable every twenty years or upwards. Periodical sums charged forbidden course of tillage (z); and whether the demises on which such conventional rents are reserved be for lives or only for years (a). In the case of rent payable every twenty years, or at a longer interval, the anomalies and difficulties arising upon several provisions of the statute, and especially upon the first branch of the section 3, making the right to distrain for a rent to have first accrued at the last time the rent is received, have been pointed out (b). If the twenty years fixed by the section 2 be calculated from that time, great injustice may be inflicted upon the owners of such rents. But this injustice would seem to show and would afford ground for holding that, either from the nature of the section 3, or by the context, such rents are not included in the first branch of it, but fall under the general enactment in the second section; so that each particular amount of rent due may be recovered within twenty years, or are not provided for by the statute at all, but left in the same condition as if the act had not passed. Annuities or periodical sums of money charged upon on incorporeal any incorporeal hereditaments, other than tithes (c), hereditaments. are not included in the term rent as used in this statute. For, as just stated, at common law, except in the case of the king, rent cannot be reserved out of such hereditaments or mere rights, or personal chattels (d); and therefore an annual sum charged upon or payable out of such hereditaments, (excepting tithes,) as a piscary, common, franchise (e), hundred, fair, advowson (ƒ), rent (g), is neither a rent nor an annuity, nor a periodical sum of money within the 3 & 4 Will. 4, c. 27. For only such charges of (z) Daly v. Blomfield, 5 Ir. L. (b) See Owen v. De Beauvoir, (c) Supra, pp. 340, 344. (d) Supra, p. 345. (e) Co. Litt. 47 a, 144 a; 3 Best & S. 744. (f) Butts' case, 7 Rep. 23 b. (g) 2 Roll. Abr. 446; Bro. Abr. Assize, pl. 2; Keilw. 161. |