SECTION 1. Discharge of Lands from Payment of Tithes by Non-payment for a certain Length of Time. aggregate. The non-payment of tithes, even though from time immemorial, (which, in other cases, would be sufficient to establish a valid custom), was not formerly, as we have already observed, any valid ground of exemption in this case. But its validity as a ground of exemption, is now In claims by fully established by, and consequently entirely depending laymen and corporations on, the statute of the 2 & 3 Will. IV. c. 100, by which it has been declared, that all prescriptions and claims of or to any exemption from or discharge of tithes, shall, in all claims for tithes by the king or any lay persons, not being corporations sole, or by any body corporate, be deemed good and valid in law, upon evidence showing, in cases of claim to exemption or discharge, 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 the render or payment of tithes or of money, or other matter in lieu thereof, shall be shown to have taken place at some time prior to such thirty years, or unless it shall be proved that such enjoyment was 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 enjoyment was 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 In claims by demanded by any archbishop, bishop, dean, prebendary, corporations 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 showing such enjoyment had as is hereinbefore mentioned 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 appointment and institution or induction of a third person thereto, provided that if the whole time of the holding of such two persons shall be less than sixty years, then it shall be necessary to show such enjoyment had not only during the whole of such time, but also during such further number of years, sole. Commencement of the act. 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 enjoyment was had by some consent or agreement expressly made or given for that purpose by deed or writing. This act, however, was not to have any operation in of the operation suits or actions already commenced at the time of its passing, or which might be commenced within one year after the session of parliament in which it was passed, which ended on the 16th of August, 1832. Exceptions from operation of act. The consequence of this was that a great number of suits, amounting, it is said, to about 300, were immediately instituted by parties claiming tithes, in order that they might not be debarred by the effects of the act, but avail themselves of the year of grace allowed them. It was, therefore, considered advisable to enable the defendants in this number of suits to cause all further proceedings to be for a time suspended; and it was provided by another act of parliament passed in the 4 & 5 Will. IV., that such defendants might, with the consent of the plaintiff, pay the amount of the taxed costs and expenses, which might have been incurred by the plaintiffs, into the Bank of England, to the credit of such action or suit; and that when that should have been done, all further proceedings in such actions or suits should be stayed, until the end of the next session of parliament, which would be about one year from that time. And that at the end of the next session, the plaintiffs in the actions or suits which had been so stayed might give notice to the defendants of their intention to proceed, and proceed accordingly; and that then after such notice given, the defendants should be entitled to receive out of court the sums which they had so previously paid in. If the plaintiff accepted the costs, and took them out of court, which he was empowered to do, all further proceedings were to be for ever abandoned." Another exception from the operation of the above statute is, where the lands, for which exemption by nonpayment is claimed, are or have been held or occupied by any person who would have been entitled to the tithes thereof; or by the lessee or sublessee of any such person, in such way as that the right to the tithes would have been during any time in the occupier thereof, or in the person entitled • Sect, 3. P 4 & 5 Will. 4, c. 83, ss. 1, 2. 9 Sect. 3. to the rent thereof, in which case the whole of such time is excluded in the computation of time before directed." The act also contains the usual exception in favour of persons under legal disability, by declaring that the time, during which any person otherwise capable of resisting any claim should be under such disability, or during which any action or suit should have been pending and diligently prosecuted until abated by the death of a party, should be excluded from the computation; but these exceptions are not admissible in cases where it has been before declared that the right or claim to nonpayment is to be absolute and indefeasible.s In the absence, therefore, of any document in writing General rule in showing the nonpayment to have been by consent, the case of persons exemption is in all cases, without exception, absolute and ecclesiastical. indefeasible, as against persons ecclesiastical, if it can be proved that no payment has been made during the period of two incumbencies and the first three years of a third, supposing the period of the two incumbencies together to amount to sixty years; but if it does not, then if it can be proved that no payment has been made for sixty years, and the first three years of a third incumbency, or rather, it seems, it might have been said of a fourth, fifth, or any other incumbency; for though there had been twenty incumbents within the space of sixty years, the claim might still be prosecuted within three years after the induction of the twenty-first. This section had been written before the appearance of the case of Salkeld v. Johnston, decided by the ViceChancellor Wigram in the early part of 1842. The effect of that decision is, that the above statute does not create any new ground of exemption, or destroy the right to tithes in cases where the nonpayment or nonrender of tithes from the time of legal memory would, before the statute, have established no exemption. From that judgment, however, there has been an appeal, which is not yet decided; for which reason it appears best to leave what had been said on the subject unaltered, especially as it is very probable that if the case of Salkeld v. Johnston should be confirmed, some fresh legislative enactment would be passed to carry out the obvious intention of the previous statute. That the intention of that statute was to create a new ground of exemption, however insufficiently it may have been expressed, can scarcely be doubted. Effect of the last mode of exception upon the present. Lands parcel of the possessions of a privileged order. SECTION 2. Discharge of Lands from Payment of Tithes by having It will be obvious that the mode of exemption last mentioned, unless the case of Salkeld v. Johnston becomes law, is as it were a major proposition, which will include almost all the cases which might be mentioned under the present head; for that gives exemption to all lands whatsoever, after nonpayment of tithes for the time there mentioned. The present includes a variety of cases, where the nonpayment of tithes for a much longer period than there mentioned is in each case admitted and undoubted; and in most cases it would be easier and more simple to insist on the exemption by statute; for in the course of evidence that would necessarily be proved as a part only of what must be shown by those who claim exemption under this head. A great part, therefore, of what would formerly have been important under this head, is now become matter of history, rather than of actual law, and may consequently be passed over briefly. persons, All abbots and priors, and other chief monks, were originally subject to the payment of tithes, as well as other until Pope Paschal the Second exempted generally the religious orders from the payment of tithes in respect of lands in their respective actual possession; or, as it was expressed, quamdiu propriis manibus excoluntur." The three privileged orders are Cistercians, Templars and Hospitallers, which, on account of their order, have the privilege of being discharged from the tithes of lands in their own occupation. The privilege extends only to such lands as these orders were possessed of at the time of the last general council of Lateran, in the seventeenth year of King John, A. D. 1215, when the privilege was strictly limited to such lands as were in their possession before the holding of that council. The exemption granted by the council was allowed by the general consent of the realm as part of the law of the land; but the Cistercians endeavoured to evade this decree of the council by purchasing bulls of exemption for their lands in the occupation of their tenants or farmers, until by stat. 2 Hen. IV. c. 4, the Cisu 2 Rep. 44 b. Toller, 171, 3d ed. y 2 Inst. 651; Staveley v. Ullithorne, Hard. 101; 1 Wood, 24. tercians and all other orders purchasing or putting such bulls into execution incurred a præmunire. The order of Templars was dissolved by stat. 17 Edw. II. st. 1, by which their lands were given to the prior of St. John of Jerusalem, so that long prior to the time of dissolution of the monasteries the Čistercians and Hospitallers were the only privileged orders. to such prior to the An exemption from tithes on the ground of the lands Must be shown having belonged to one of the privileged orders, did not have been rest on prescription; but the owner must formerly have council of Lashown satisfactorily that the monastery was seised of the teran, and at the lands before the above mentioned council of Lateran, and dissolution of also at the time of the dissolution; and in a case where the owner of lands established the former, but failed to establish the latter fact, the court decreed an account of tithes.a b The exemptions from tithes enjoyed by ecclesiastical bodies would have ceased upon their dissolution, and the lands would again have become subject to tithes, had it not been enacted at the time of their dissolution, that all persons who should come to the possession of the lands of an abbey then dissolved, should hold them free and discharged from tithe, in as large and ample a manner as the abbeys formerly held them; from which origin, Blackstone says, have sprung all the lands which, being in lay hands, do at present claim to be tithe free. the monastery. It must be observed, however, that this statute was no discharge of lands from tithe, except where they had been already discharged in the hands of the religious houses, and that this was by no means universally the case; for none of these religious persons could be exempted from payment of tithes but by his order, the pope's bull, composition real, prescription, or unity of possession. Never- What would be theless, as they might have been exempted by any of these sufficient premeans, it has been held as a settled rule of common law, abbey lands had sumption that that persons holding lands which were formerly the pro- been exempt. perty of these religious houses might prescribe in non decimando, that is, to be free from the payment of tithes as respects such lands, without being required to give any further proof of the origin of the discharge than usage and enjoyment from time immemorial; which indeed is only in conformity with the general rule of our common law, that if a custom, which might have had a legal origin, shall be proved to have existed from time immemorial, the legal 22 Inst. 632; Degge, 410, 411. Norton v. Hammond, 1 Younge & Jervis, 94. b31 Hen. 8, c. 13. e 2 Black. Com. 32. d Ibid. |