Nature of the enjoyment as a discharge may qualify the right. By whom and for what the exemption may be claimed. The ground of it. of a parish from the payment of all tithes to the rector of the parish (a). To sustain the exemption or discharge nothing more is required than the enjoyment of the land producing titheable matters and of right, without the payment or the render of or any equivalent for the tithes during the prescribed period; and as the statute applies only to those cases in which the enjoyment has been adverse and of right, the nature of the enjoyment would qualify the right (b). The exemption or discharge may be claimed by a lay occupier of the land against an ecclesiastical person, and as well in respect of particular titheable matters (c), as of all tithes (d). Lord Cottenham, C., appears to have been of opinion that both descriptions of claim were equally within the true meaning of the word "tithes," as used in the statute (e). The ground of the exemption or discharge may be either by composition real, or otherwise. In Salkeld v. Johnston (f), Wigram, V.-C., said, composition real is put as an example. The words "or otherwise" must mean other legal causes. The legislature could not have intended under those general words to create new causes for modus or exemption before unknown to the law; and Coleridge aud Patteson, JJ., in Fellowes v. Clay (g), were of the same opinion, but Lord Denman, C. J., and Williams, J., in the same case, and Lord Cottenham, C., in Salkeld v. Johnston, on appeal from the decision of Wigram, V.-C., in the same case, thought otherwise. Lord Cottenham also thought (h), (a) Per Lord Denman, C. J., and Williams, J., in Fellowes v. Clay, 4Q. B., N. S. 313-Coleridge, J., and Patteson, J., contra. (b) Salkeld v. Johnson, 2 Ex. 256. (c) Per Lord Cottenham, C., Coltman, J., and Erle, J., in Salkeld v. Johnson, 1 M. & G. 242; 2 C. B. 749; and by the Court of Exchequer, 2 Ex. 256; Wigram, V.-C., Î Hare, 196; Tindal, C. J., and Cresswell, J., in the same case, 2 C. B., contra. (d) Fellowes v. Clay, 4 Q. B., N. S. 313. (e) 1 M. & G. 272 et seq. sitions ex that the words "by composition real" are introduced by way of example only (i), but that the subsequent words "or otherwise" render them useless; the whole being tantamount to an enumeration of every possible ground of discharge, which would be equivalent to the simple words, "all claims to discharge from tithes." Where tithes have been demised for life or years, or What compoany composition for them has been made in writing by cluded. the owner of them with the owner or occupier of the land for any such term, and the demise or composition was subsisting at the passing of the act, and any action or suit is instituted for the tithes in kind within three years next after the determination of such demise or composition, the case is not within the act(k). The Tithe Commutation Act (1) has rendered the Effect of Tithe 2 & 3 Will. 4, c. 100, as regards its direct object, of Act on c. 100. little practical importance, and this branch of the subject of the present treatise may seem unnecessary to be considered. But as the decisions on this last statute show the principles of interpretation of the other statutes in pari materiâ, and in order to present a complete and connected view of the entire subject, this brief exposition of the 2 & 3 Will. 4, c. 100, is here given. Commutation this act ex variations. The main provisions of the 2 & 3 Will. 4, c. 100, in Provisions of effect, though in a somewhat different form, have been tended to Ireextended to Ireland (m). The words "by composition land with real or otherwise" in the statute for England are omitted in that for Ireland, which enacts that all these prescriptions and claims shall, in all cases whatever, be sustained, &c., &c., as in the enactment for England (n). of the two acts. The language of each of these two statutes is in sub- Interpretation stance and effect the same, and is to receive the same interpretation, and to be considered as used in the (i) See also 4 Q. B. 319, 332, 340. (k) 2 & 3 Will. 4, c. 100, s. 4. (1) 6 & 7 Will. 4, c. 71. (m) 1 & 2 Vict. c. 109, ss. 18 -24; and as to the Crown, see ss. 49, 50. (n) See Shiel v. The Incorporated Society, 10 Ir. Eq. Rep. 411. Gross sums charged on land or rent, legacies. same sense, and with the same meaning in each of them (o). Sums of money in gross charged upon or payable out of any land or rent within the meaning of the 3 & 4 Will. 4, c. 27, and also legacies from or out of 3 & 4 Will. 4, either real or personal property, are also embraced by this statute (p). c. 27. Sum may be charged ex contractu, -or by operation of law, The sum may be so charged or payable ex contractu, as a mortgage (q), or a settlement (r); and a sum of money secured by a mortgage of a legacy charged on land is a sum secured by a mortgage of land within this section. For by section 1, the term land, unless the nature of the provision or the context of the statute exclude the meaning, extends to any interest in land, and chattel interests as well as freehold, and no such ground of exclusion exists here (s). And although the mortgage debt itself as against the mortgagor personally may be barred, yet the property mortgaged may be of such a nature, e. g., reversionary, that, notwithstanding such bar, the mortgagee may enforce the debt against such property when the interest in the property falls into possession, or within twenty years after that time (t). And if in the meantime the mortgagor seek the aid of a court of equity to obtain the possession of the property on the ground of such bar as against the mortgagor personally, such aid will not be given (u). The sum may be also so charged or payable by operation of law, as by judgment, and whether original or revived (x), and whether revived by scire facias with (0) See Shiel v. The Incorpo- (4) See Dearman v. Wyche, 9 (r) Peyton v. M'Dermott, 1 Dru. & Wal. 198; Burrowes v. Gore, 6 H. of L. Cas. 907; 4 (8) Seager v. Aston, 3 Jur., N. S. 481. (t) Ib. 490. (u) Ib. (x) Farran v. Beresford, 10 CI. & F. 319; Farrell v. Gleeson, 11 Ib. 702; Harty v. Davis, 13 Ir. Law Rep. 23; Murray v. Clarke, or without any change of parties (y), or by acknowledgment in writing (z), except those which, in Ireland at the passing of the c. 27, were barred by the 8 Geo. 1, c. 4 (I.)(a), and whether the judgment, owing to the nature of the assets of the judgment debtor, be such that it may operate against land, but cannot operate against personal estate (b). For a judgment, although not an actual or a direct, is yet a potential charge on land (c); and judgments sought to be enforced against the personal assets of the debtor are equally within this statute as when sought to be enforced against the realty. But if not a court of equity, after the lapse of the period assigned by the statute, would, by analogy, refuse to enforce the judgment against personal assets (d). The sum may be also so charged or payable by or or by a lien. through a lien, other than a judgment as such, e. g., the lien of a vendor for his unpaid purchase-money (e), or other liens (f), or so charged or payable in any other manner (g). It has been doubted whether the produce of real estate, directed to be sold, be a sum of money charged upon or payable out of land within the section 40 (h). By the section 1, unless the nature of the provision or the context of the statute exclude the meaning, land extends to any interest in it, as well chattel interests as freehold, and as well in equity (i) as at law. That 4 Ir. C. L. Rep. 610; Kealy v. Bodkin, Sausse & S. 211; Henry v. Smith, 1 Con. & L. 506; Vincent v. Goring, 1 Jones & Lat. 697; O'Hara v. Creagh, Longf. & T. 65. (y) Ib.; Re Blake, 2 Ir. Ch. Rep. 643; Ottiwell v. Farran, 1 Sausse & S. 218, n. (z) Harty v. Davis, supra. (a) Morrough v. Power, Longf. & T., Ir. Rep. 644. (b) Watson v. Birch, 15 Sim. 523. L. Whether pro duce of land to be sold be such a sum. Secured by the right longer. such produce is an interest in land within the section 1, unless the term interest in that section is used in the restricted sense hereafter suggested, can scarcely be doubted, and therefore is land within the section 40. When, however, these sums are charged upon land trust preserves and secured by means of a trust, and the trustees, by virtue of their estate in the land, are in a position to enter, and accordingly enter upon it, the person claiming the sum, although more than twenty years may have elapsed since the right to receive it accrued, will not be barred (k). Operation of In Forsyth v. Bristowe (1), Parke, B., said it may be sect. 40 of c. 27. a question whether section 40 of c. 27 applies to anything but the remedy against the realty, and, therefore, whether it extends to actions on a covenant to pay mortgage money or bonds to secure the payment thereof. But in O'Hara v. Creagh (m), the court said, in relation to judgments, that the statute is not to be construed as restricted to actions against real estate, but as affecting charges on real estate, whether sought to be enforced against either the real or the personal representatives, and that even if this were so the court would by analogy act upon it. It is difficult to cut down the general operation of the words of this section and divide, as it were, the effect of a judgment or security (n). Secured by A sum of money secured by the bond of an ancestor, bond only, not although in one sense payable out of, is not a charge a charge on real estate. Simple contract debts. upon, real estate; the bond only giving a right of action against the heir of the obligor, if named in the bond, is not a debt charged upon or payable out of land within the section 40 of c. 27 (0). Whether a court of equity at the instance of a simple contract creditor, whose immediate right against real (k) Young v. Lord Waterpark, 13 Sim. 199. See also Cox v. Dolman, 2 De Gex, M. & G. 592. (1) 8 Ex. 716. (m) Longf. & T. Ir. Rep. 65. (n) Per Richards, B., Ib. 76. (0) Roddam v. Morley, 2 K. & J. 336; 1 De Gex & J. 1, on appeal. |