tity of land producing rectorial tithe, and the quantity producing vicarial tithe.

In all cases in which there shall be hereafter mixed plantations of hops and fruit in any parish or district in which an extraordinary fruit charge shall have been declared, the rectorial and vicarial tithes whereof, but for the commutation, would have been payable to different owners, the extraordinary charge payable in respect of the tithes of such mixed plantation shall be divided between such owners in proportion to the extent of land occupied by that produce, which would have paid tithes to each of them respectively provided, that payment of the share of each tithe owner, when so ascertained, shall be taken to be subject to the provisions for lessening the amount of extraor dinary charge payable in respect of hop gardens and orchards respectively at the beginning of such cultivation. For the purpose of fixing any charge for the tithes of hops or fruit, or of any mixed plantation as aforesaid, the commissioners may assign the parish or lands, in respect of which due notice shall have been given, or any part or parts of such parish or lands, as such district as before mentioned, and may fix a charge upon such lands in respect of the tithes of hops or fruit, as the rent-charge to prevail and to be established in respect of the same, without specific reference in the award to any other parish or lands, but having regard to the general amount of compositions which they shall find to have prevailed in other parishes of a similar description, and not to the money payments in the parish under consideration, or the value of the tithes in kind thereon."

In the absence of any special agreement between the parties, the payment of tithe rent-charge is to begin to be due from the 1st of January next after the confirmation of the apportionment; at which time the lands are to become absolutely discharged from the payment of all tithes, and it is to be paid to the person mentioned in that behalf in the agreement or award and apportionment, in the nature of a rent-charge issuing out of the lands charged therewith; such yearly sum to be payable by two equal halfyearly payments, on the 1st of January and the 1st of July in every year; and after every 1st of January, the sum of money thenceforth payable as rent-charge shall vary so as always to consist of the price of the same number of bushels and decimal parts of a bushel of wheat,

• Sect 30.

t Sect. 31.

" Sect. 32.

* By the 2 & 3 Vict. c. 62, provision is made for fixing the time at which the rent-charge may be made to commence.

barley and oats respectively, according to the prices ascertained by the then next preceding advertisement.

But that which we have already mentioned as the dormant rent-charge apportioned upon any lands, which during any part of the period of seven years preceding Christmas, 1835, were exempted from tithe by reason of having been inclosed under any act of parliament, or converted from barren heath or waste land, is to be payable for the first time on the 1st of July or the 1st of January next following the confirmation of the apportionment, which may be nearest to the time at which tithes were or would have become payable for the first time in respect of the said lands, if no commutation thereof had taken place.

In other cases, where the rent-charge would have been Parties emdormant or contingent whilst the lands were in the occu- powered to subpation of the owner of them, by reason of having been stitute a fixed for a contingent parcel of the possessions of a privileged order, the re- rent-charge. spective owners of the lands and tithes, or tithe rentcharge, by the parochial agreement, or by a supplemental agreement, made as the commissioners shall approve, may agree to the payment (or, in cases of compulsory award, the commissioners, with the consent of such respective parties, may award the payment) of a fixed and continuing rent-charge, without regard to the change of occupation or manurance of such lands, equivalent in value, according to the judgment of the commissioners, to the contingent rent-charge; and such lands shall, after the confirmation of the agreement or award, or after such other time as shall be fixed, with the approval of the commissioners, be subject to such fixed rent-charge, instead of the contingent rent-charge, to which such lands would otherwise have been subject, and such fixed rent-charge is made recoverable in the same manner as other tithe rent-charge.2

Crown lands, which, by reason of their being of the tenure of ancient demesne or otherwise, are exempt from tithe while in the tenure, occupation or manurance of the crown, or tenants of the crown, but become subject to tithe when aliened or occupied by subjects not tenants of the crown, may in like manner have a fixed instead of a contingent rent-charge charged upon them; but no such fixed rent-charge shall be charged upon them without the consent of the persons or officers who are, by the Tithe Commutation Act, required to be substituted in cases of commutation, where the ownership of lands or tithes is vested in the crown.a

Ante, sect. 2.

z 2 & 3 Vict. c. 62, s. 11.

a Ibid. sect. 12.

Rent-charge

incumbrances and incidents as the tithe.

The rent-charge, except in cases where it may be spesubject to same cially provided in the agreement or award, is to be subject to the same incumbrances and incidents as the tithe was prior to the commutation; so that tithe rent-charge, belonging to ecclesiastical and other persons, within the enabling and disabling statutes, will become subject to their provisions; and any person having any interest in or claim to, or charge or incumbrance upon any tithes, will retain the same in or upon the rent-charge, and the same remedies are given him for recovering it, as if his claim had accrued after the commutation."

Provision where

a tenant at rack from payment.

rent dissents

The occupiers of land at a rack rent may dissent to the payment of tithe rent-charge; in which case the landlord may succeed to the rights of the tithe owner during the tenancy, as to the perception or collection of tithes, or receipt of any composition in lieu thereof, and may have all the powers and remedies for enforcing render and payment of such tithes or composition, as the tithe owners would have had if the commutation had not taken place.

SECTION 7.

Discharge of Lands from Payment of Tithe by other
Lands given in Lieu thereof.

Another mode in which lands may become exempt from the payment of tithes, is by other lands being given in lieu of the tithe or rent-charge. This, too, is provided for by the Tithe Commutation Act; for it is there declared, that any parochial agreement may be made according to the manner and form prescribed in the act for parochial agreements as to rent-charge, for giving to any ecclesiastical owner of tithes or tithe rent-charge, any quantity of land, not exceeding twenty acres, by way of commutation for the whole, or an equivalent part of such tithe rentcharge; but in every case such agreement must be made in such form, and contain such particulars, as the commissioners shall direct, specifying the land, whereof the tithe or tithe rent-charge shall be the subject of the agreement, and giving full descriptions of the quantity, state of culture, and annual value of the lands, proposed to be given in exchange for such tithes or rent-charge. And the same consent and confirmation are made necessary to any such agreement, as in the case of an agreement for a rentcharge.d

b 6 & 7 Will. 4, c. 71, s. 71.
d Ibid. sect. 29; and see ante.

c Ibid. sect. 79.

the tithes of a

parish.

If the agreement does not extend to the whole of the When not extithes of the parish, an agreement or award is to be made tending to all in the manner before mentioned for the other lands; and unless otherwise agreed upon by the parties to the agreement, the rent-charge is to be apportioned upon all the lands of the parish, subject to the payment of tithes, except the land so given by way of commutation."

So also in the case of a compulsory award, the owner In compulsory of any lands chargeable with tithe rent-charge may at awards. any time, whether before or after the confirmation of the apportionment, but during the continuance of the tithe commission, and with the consent of the commissioners, agree with any ecclesiastical person, being the owner of the tithes, for giving land instead of the rent-charge chargeable upon his lands. Every such agreement is to be made under the hands and seals of the land owner and tithe owner, and to contain all such particulars as are required to be contained in a parochial agreement for giving land instead of rent-charge; and the same restrictions as to the quantity of land to be given, and as to the necessity of consent and confirmation by parties, are equally applicable to either case; and in either case also, the land so given must be free from incumbrances, except leases at improved rent, land tax, or other usual outgoings, and must not be of leasehold tenure, nor of copyhold or customary tenure, subject to arbitrary fine or the render of heriots; so that those copyhold lands only which are liable to fines certain, and free from heriots, may be taken in lieu of rent-charge.s

But any amendment made in the draft apportionment Effect of amendbefore it is confirmed, and after any such agreement for ing draft apporgiving land in lieu of rent-charge, by which amendment tionment.

the charge upon the lands referred to in such agreement shall be altered, shall be taken to annul the execution of the agreement for giving land, and any consent that may have been necessary thereto."

It was in the first instance directed, that the commis- Title of lands sioners should satisfy themselves as to the title of the given in exlands thus agreed to be given; but this appears now to change. be unnecessary; for it has been enacted, that where any land has been or may be taken by any ecclesiastical tithe owner, under any agreement by virtue of these acts, such land shall, upon the confirmation of any such agreement, vest absolutely in such tithe owner and his successors, free from all claims upon it; and without being subject to

* 6 & 7 Will. 4, c. 71, s. 29.

See ibid., and 6 & 7 Will. 4, c. 71, s. 62.

f 2 & 3 Vict. c. 62, s. 19.
h Sect. 62.

Remedy for the party who

would have

recover the

lands.

any question as to any right, title or claim thereto, or affecting the same.i

The commissioners are to cause to be inserted in or indorsed upon every such agreement, the amount of the been entitled to rent-charge instead of which such land was given, and the lands upon which the same was chargeable, and every person who would have been entitled to recover any such land given instead of rent-charge, or any rents or profits issuing out of such land, shall be entitled instead to recover against the parties who may have given such land instead of rent-charge, his, her or their heirs, executors or administrators, by way of damages, in an action on the case, such compensation as he or she may be entitled to for any loss thereby sustained, and such damages, and all costs and expenses awarded to the plaintiff in such action, shall forthwith attach upon and be payable out of the lands exonerated by such agreement.

Effect of this

upon purchasers.

It would appear to follow from this enactment, that lands in the hands of a bona fide purchaser, without notice of any incumbrance, and indeed upon which no incumbrance existed, might be charged with the payment of these damages, although the owner would have been no party to the action, and would perhaps have known nothing of its commencement; this enactment, therefore, will render it necessary, or at least advisable, for any party purchasing or advancing money on mortgage of lands which have been exonerated from tithe rent-charge by other lands given in lieu of them, to investigate and be satisfied, with not only the title of those lands, but also the title of those by the giving of which the others were exonerated. It appears by the clause that the damages are not necessarily recoverable, in the first instance, against the parties defending the action; or, if so intended, it is not clearly expressed, that where the lands exonerated have passed to a purchaser, the person in whose hands they first became exonerated, or his representatives, should be primarily liable to pay the amount of the damages, for these attach forthwith upon the lands; so that the person holding them would be unnecessarily driven to a circuitous remedy of another action under his covenant for title against the vendor or his representatives. It might, however, frequently happen that the representatives of his vendor had nothing out of which he could recover; and it seems; therefore, that there should have been some provision for directing the action to be brought against the holder of the lands, or that he should be a party to it;

$2 & 3 Vict. c. 62, s. 20.

k Ibid.